FEDERAL COURTS WELLS SPRING 2015
I. JUDICIAL REVIEW
A. Establishing Judicial Review
1. Courts have power of judicial review. Marbury v. Madison (1803).
2. Court struck down jxd’l statute.
a. Sought relief under original jxd because Judiciary Act of 1789, § 13 seemed to say he had access to SCOTUS without going to any other court first.
b. But Art. III says there are some topics on which court has original jxd—otherwise jxd is only appellate—but this is not one of them.
i. Because statute purports to confer original jxd beyond the constitutional limits of original jxd, court strikes down statute.
ii. Statute is unconstitutional, and therefore there is no relief.
B. Rationale
1. Judicial review is implicit in text of Constitution.
a. Constitution articulates limits for exercise of power of separate branches. If limits are not enforced, balance is upset.
b. Courts must use all law to decide case in front of it. Constitution is the Supreme law, under Art. IV, so if statute conflicts with superior law, overrule it.
2. In system with checks and balances, court’s role is to check other branches.
a. “It is emphatically the province of the Court to decide what the law is.”
b. WELLS says this is bolder view where judiciary exists as a restraint on other branches.
II. CONSTITUTIONAL REMEDIES: SECTION 1983 AND RELATED DOCTRINES
A. Statutory framework à 42 U.S.C. § 1983
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
1. Elements of a cause of action.
a. Natural person
b. Violation à Deprivation of rights
c. Federal constitutional or statutory rights
d. Under color of state law
i. Includes actual authority as well as “custom” and “usage”
2. POLICY
a. Override state law
b. Provide remedy when state remedy is inadequate
c. Provide a federal remedy when state courts provide a remedy in theory but not in practice.
d. Allows post hoc review, where has previously only injunctions were available.
3. Establishes legal remedy for constitutional wrongs. Two ways to allege violation of constitutional wrong.
a. As ∆, can raise constitutional defense.
i. See, e.g., Roe v. Wade (∆ prosecuted for having abortion raises constitutional right as defense), N.Y. Times v. Sullivan (∆ sued for libel and defamation could raise constitution as a defense.
ii. See also Bond v. United States (2011). ∆ charged under federal terrorism law when she used federally regulated chemicals to attack her husband’s paramour. SCOTUS held, 9-0 that she had standing to raise constitutional challenge to statute.
iii. But, if claimant can only raise as defense, limits operational significance of constitutional remedy. Marbury could not have brought suit; Brown πs could not have raised claim.
b. Not historically true, but now Constitution is more broadly available as a sword.
i. Previously could only bring suits for injunctive, equitable relief.
aa. Availability of prospective relief established in Ex Parte Young (1908) (allowing RR to bring suit to enjoin state from enforcing statutory ceiling on RR rates rather than waiting for criminal prosecution and raising Constitution as a defense).
bb. Court creates implied federal cause of action essentially as a matter of common law, but doesn’t really explain where they got it from.
ii. Retrospective remedy is suit for damages, now brought under § 1983.
4. πs often prefer to bring § 1983 suit even when other actions might be available.
a. Makes federal forum available.
i. Can bring action in state or federal court, but ∆ can always remove if π for some reason did prefer state court.
b. Allows prevailing π to recover reasonable attorney’s fees.
i. Reasonable fee—calculate based on what similar legal work would get.
ii. π has to actually win in court; not enough for ∆ to change conduct.
B. Basic contour of action
1. In Monroe v. Pape (1961), Court establishes damages remedy under § 1983.
a. Citizen brought suit against police for violation of 4th Amendment.
b. § 1983 was intended to give individuals a federal remedy for deprivation of their constitutional rights. Sense that states are foxes manning the henhouse.
c. “Under color of state law” does not require that conduct of actor have been lawful.
i. Here, police were acting under color of state law even though they were acting in contravention of state law when they conducted search in violation of 4th Amendment, and deprivation occurred then, not when state refused to enforce π’s rights.
aa. In two prior cases interpreting criminal statute upon which § 1983 was based, Court interpreted same language to say that action may be “under color” of state law even if wrongdoer’s actions not permitted by law.
bb. But, if action is motivated by personal animus, it is not under color of law. Honaker v. Smith (7th Cir. 2001).
ii. Conduct satisfying the state-action requirement of the 14th Amendment satisfies the statutory requirement of action under color of state law. Lugar v. Edmondson Oil Co. (1982).
2. πs do not have to exhaust state or administrative remedies before bringing § 1983 suit, barring some statutory exception like the Prison Litigation Reform Act. Patsy v. Bd. of Regents (1982).
a. In general, constitutional violation is complete at time action occurs against π, whether there has been any state court action to enforce it. No need to pursue state remedy. Home Telephone & Telegraph Co. v. City of Los Angeles (1913).
b. Home Telephone is sort of a pre-§ 1983 constitutional analog to Patsy. Opens door to offensive remedy for constitutional cause of action.
3. π can sue local governments, local government officials, and state officials but cannot sue state government. Monell v. Dep’t of Social Servs. (1978).
a. Municipalities are corporations—“persons”—but a state ≠ person.
i. State government and arms of state like public universities and state agencies may not be sued under § 1983.
ii. Counties ≠ Arms of state, even when exercising state power. N. Ins. Co. v. Chatham Cnty. (2006). Result is that πs may sue counties.
b. ∆ (local government, state or local official) only liable when it causes the deprivation of individual rights by
i. Official policy
ii. Custom
iii. Decision by body’s officers
iv. Cannot be held liable under respondeat superior theory.
C. Official Immunity à Remember that all officials get some kind of immunity
1. Absolute immunity—∆ official enjoys immunity from suit irrespective of his subjective motives or knowledge that conduct was unlawful.
a. Functional approach. Look to nature of act rather than identity of actor.
i. Not based on status.
b. POLICY
i. Prevent officers from being overly cautious in discharge of their duties.
ii. Officials have no countervailing incentive because the public, not them personally, capture the benefits of their actions. Creates perverse incentives.
aa. Contrast with private party who might take risks knowing that if things go well, they reap profits. Public official gets no added benefit when things go well, but if he suffers consequences when things go bad, might make him too risk averse.
bb. Only have the disincentive of liability, so grant immunity to balance incentives.
2. Types of absolute immunity
a. Absolute judicial immunity. Judges enjoy absolute immunity for judicial acts. Forrester v. White (1988).
i. Non-judicial functions include:
aa. In Forrester, judge accused of firing a probation officer because of her sex. This was an administrative act incident to his supervisory authority, not a judicial act. Thus, only protected by qualified immunity.
bb. In Cleavinger v. Saxner (1985), prison officials serving on discipline committee did not exercise judicial functions because they were not neutrals—they remained employees of BOP and were direct subordinates to warden who reviews their decisions. This created pressure to resolve disciplinary dispute in favor of institution rather than inmate.
cc. Judges propagating rules of professional responsibility for attorneys get legislative immunity, but not judicial. Sup. Ct. of Va. v. Consumers Union (1980).
ii. Judicial functions include:
aa. Ordering bailiffs to bring lawyer absent at start of trial into courtroom was judicial act even if judge ordered them to use excessive force. This was function normally performed by judge as incident to deciding cases. Miereles v. Waco (1991).
bb. In Stump v. Sparkman (1978), judicial immunity granted to judge who, in an ex parte proceeding, granted a petition by the parents of a 15 year old girl to have her sterilized without her knowledge.
cc. WELLS says if a judge physically assaults someone in courtroom to keep order, it’s a judicial function.
iii. Exceptions
aa. Actions not taken in judicial capacity only get qualified immunity.
bb. May seek declaratory judgment that conduct was unlawful, but then judgment only applies to that judge, not others engaged in same conduct.
cc. Judge is not immune for actions, though judicial in nature, taken in complete absence of all jxd. Bradley v. Fisher (1872).
iv. POLICY—protects finality and avoid collateral attacks, protects judicial independence, prevents vexatious litigation. Judicial mistakes already subject to appellate review, professional discipline, and criminal liability.
b. Prosecutorial immunity. A prosecutor is absolutely immune from liability for damages for constitutional violations when he acts within the scope of his prosecutorial duties. Imbler v. Pachtman (1976).
i. May still be enjoined.
ii. POLICY—promotes vigorous and fearless performance of duties, prevents skewing of judicial system. Still subject to professional discipline and criminal liability.
iii. Examples
aa. Prosecutors are absolutely immune from liability for failure to properly supervise and train subordinates, even where failure leads to violation of π’s constitutional rights. Van de Kamp v. Golstein (2009).
bb. When prosecutors collaborate with police in initiating or conducting investigations, they receive only the qualified immunity that is available to police.
cc. Not a prosecutorial function:
1. Testifying in support of warrant, as by sworn statements in affidavit. Kali
final policymaker for purposes of § 1983 is a matter of state law and practice. Webb v. Sloan (9th Cir. 2003), p. 73.
aa. In Webb, assistant district attorneys were final policymakers with respect to the conduct of criminal prosecutions.
bb. NOTE. ∆ cannot recover from prosecutor because of absolute prosecutorial immunity, but he can recover against city because ADA was final policymaker under Nevada law.
ii. Both a matter of law and practice.
aa. Law. All DAs allowed to appoint deputies and deputies have coextensive authority.
bb. Practice. Here, no evidence principal DA gave orders to deputy DA. Although the state AG technically had supervisory authority over local DAs, he did not actually exercise authority in this case.
iii. Ratification. Supervisor’s approval of subordinate’s conduct can constitute final policymaking.
aa. Passive acceptance without knowing subordinate has bad reason probably not enough. Must endorse unconstitutional conduct (and not endorse on some constitutional basis).
1. If aware of unconstitutional actions and consciously ignores them, supervisor effectively ratifies that he is final policymaker.
2. Likely requires deliberate indifference.
bb. WELLS thinks subjective state of mind of supervisor is important.
cc. In Second Circuit, if ∆ recklessly ratifies unconstitutional decision without adequate constitutional justification, sufficient for liability.
iv. NOTE. Because state government cannot be sued while local government can, if we stipulate that a given officer is a final policymaker, question of whether one is a state or local policymaker might become important. Determined by state law.
c. Inadequate training/hiring/supervision.
i. π must show:
aa. Training (or hiring or supervision) or lack thereof was deliberately indifferent to rights of π. Do not have to show that training itself constituted a constitutional violation.
bb. Training or lack thereof was the moving force behind constitutional violation. Causation.
cc. There was an ultimate constitutional violation.
ii. City’s training might have been deliberately indifferent where officers were not trained to respond to arrestee’s psychiatric emergency. City of Canton v. Harris (1989), p. 78.
iii. Deliberate indifference standard.
aa. Court first said it was a subjective test, a state of mind more blameworthy than negligence. Farmer v. Brennan (1994), p. 82 (holding that acting or failing to act with deliberate indifference to a substantial risk of serious harm to a prisoner is the equivalent of recklessly disregarding the risk).
bb. Cannot be met by a showing of simple or even heightened negligence. Bryan Cnty. Commissioners v. Brown (1997), p. 82.
cc. WELLS says it’s really an objective test.
1. Recurrence of common situations or
2. Rare but severe constitutional violations
iv. Court found no pattern of inadequate training/supervision in Connick v. Thompson (2011). π wrongly convicted for murder, sentenced to death. Prosecutors had Brady violations (failure to disclose evidence to defense). Sued Orleans Parish on theory that DA Connick failed to train adequately ADAs on Brady violations and that it amounted to deliberate indifference.
aa. Possible in principal to win by showing single incident, but Brady is such black letter law that Court said it was hard to imagine that DA needed to train subordinates on it.
bb. Ironic, given that six months later, Court granted habeas claim on behalf of π convicted in Orleans Parish who also alleged Brady violations.
v. Inadequate hiring. Only gives rise to liability when adequate scrutiny of applicant’s background would have lead a reasonable policymaker to conclude that the plainly obvious consequence of hiring applicant would be deprivation of third party’s federally protected rights.