Chapter One

Constitutional

and

Title 42 §1983 Actions

Civil Remedies

Compiled by TJ Henderson

2004 Edition

“Everyone shall have the right to compensation for any harm done to him by any action of an organ of public authority contrary to the law.”

I sometimes wonder if public officials fully comprehend the meaning of the Constitution. Public servants are liable for their actions and, in particular, for any damages suffered by a member of the public resulting from the official's performance of his or her duties in a manner contrary to the law. In addition to the Constitution, the Civil Code and the Administrative Procedures Act provide for such liability in more detail. And just to make sure no one has any misunderstanding, the Constitutional Tribunal has also weighed in on the subject, declaring in a landmark decision a couple of years ago that public officials hold a “special, servitude-like role responsible for protecting the freedom and rights of the public.”

What is an organ of public authority? A public authority includes both national and local government entities. First, let's take a look at most states level. Most states Civil Codes declares that the “State Treasury shall be liable for damages caused by an official of the State in carrying out acts entrusted to him.” In other words, an individual may seek compensation from the State Treasury for an injury caused by a State official. The definition of a State official includes employees of State authorities, administrative authorities and economic organizations.

Importantly, it also includes elected officials, judges, prosecutors and military personnel. Yes, judges and prosecutors are included in this group. A defendant in a civil or criminal case, if convicted wrongly due to the malfeasance of the prosecutor or judge, may seek monetary compensation from the State Treasury. Wait a minuet, I thought Judges and prosecutors have absolute immunity? In a landmark decision, declared that Judges could be sued for taking jurisdiction over cases he or she has no jurisdiction over and for violating clear established laws. Rankin v. Howard, (1980) 633 F.2d 844, cert den. Zeller v. Rankin, 101 S.Ct. 2020, 451 U.S. 939, 68 L.Ed 2d 326.

Similar to the liability of the State Treasury for the actions of State officials, local governments are liable for the actions of their employees. Most state’s civil codes, provides that “if damage is caused by an official of a unit of local self-government in the exercise of his or her duties, the liability for such damage shall be borne by that unit of local self-government.” Additionally, most states civil codes provides that if the “damage was caused by a local official in the exercise of his or her statutory duties...the State Treasury shall be liable jointly and severally with the local government unit for such damage.” So, just in case the local government cries poverty, the State Treasury is ultimately responsible if the local official caused the damage in performing a delegated function. Local officials include employees, councilors and board members at the county and township levels, as well as elected officials, including mayors and city fathers.

Now, it gets interesting. Most states civil codes, also regulates the liability of State and local officials and provide for the award of compensation to a party (not just a person) who incurs monetary damage resulting from the reversal of an earlier administrative decision. Lets take the construction industry as an example. On January 1 the official responsible for issuing building permits of XYZ Township, issues a building permit to ABC Builders to construct a shopping center on the edge of town, which construction company is liable for a building permit. A few days after the building permit is issued by the official, an appeal is filed against the official’s decision by a third party, claiming that the building permit was issued improperly because not all of the neighbors were given proper notice of the building permit proceedings. ABC Builders isn’t sure if it is safe to commence construction and seeks clarification from the official. Did you follow all the required rules in issuing the building permit? Yes, of course I did. Don’t worry about this appeal. Go ahead and build your shopping center.

Fast forward six months. The building permit is declared void, because the official failed to give proper notice to all of the neighbors. The investor is ordered to stop halfway through construction. Now what? Assuming ABC Builders did nothing wrong, other than rely on the official’s assurance, ABC Builders may seek compensation from XYZ Township (and/or State Treasury) for all damages incurred as a result of the building permit being revoked. In the end the official will probably be fired, if not forced to resign earlier.

To further the suit against Judges:

Here is a selection of case/reference citations regarding judicial immunity when personally suing a Judge for money damages. (Warning: Look up and read the cited case for consistency with your situation, before citing it in your own brief.)

When a judge knows that he lacks jurisdiction, or acts in the face of clearly valid statutes expressly depriving him of jurisdiction, judicial immunity is lost. Rankin v. Howard, (1980) 633 F.2d 844, cert den. Zeller v. Rankin, 101 S.Ct. 2020, 451 U.S. 939, 68 L.Ed 2d 326.

In Rankin v. Howard, 633 F.2d 844 (1980) the Ninth Circuit Court of Appeals reversed an Arizona District Court dismissal based upon absolute judicial immunity, finding that both necessary immunity prongs were absent; later, in Ashelman v. Pope, 793 F.2d 1072 (1986), the Ninth Circuit, en banc, criticized the “judicial nature” analysis it had published in Rankin as unnecessarily restrictive. But Rankin’s ultimate result was not changed, because Judge Howard had been independently divested of absolute judicial immunity by his complete lack of jurisdiction.

Some Attorneys urge that any act “of a judicial nature” entitles the Judge to absolute judicial immunity. But in a jurisdictional vacuum, (that is, absence of all jurisdiction) the second prong necessary to absolute judicial immunity is missing. Stump v. Sparkman, id., 435 U.S. 349.

“Where there is no jurisdiction, there can be no discretion, for discretion is incident to jurisdiction.” Piper v. Pearson, 2 Gray 120, cited in Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872)

A judge must be acting within his jurisdiction as to subject matter and person, to be entitled to immunity from civil action for his acts. Davis v. Burris, 51 Ariz. 220, 75 P.2d 689 (1938)

Generally, judges are immune from suit for judicial acts within or in excess of their jurisdiction even if those acts have been done maliciously or corruptly; the only exception being for acts done in the clear absence of all jurisdiction. Gregory v. Thompson, 500 F2d 59 (C.A. Ariz. 1974)

There is a general rule that a ministerial officer who acts wrongfully, although in good faith, is nevertheless liable in a civil action and cannot claim the immunity of the sovereign. Cooper v. O’Conner, 99 F.2d 133

When a judicial officer acts entirely without jurisdiction or without compliance with jurisdiction requisites he may be held civilly liable for abuse of process even though his act involved a decision made in good faith, that he had jurisdiction. State use of Little v. U.S. Fidelity & Guaranty Co., 217 Miss. 576, 64 So. 2d 697.

“... the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument.” Marbury v. Madison, 1 Cranch 137 (1803).

“No judicial process, whatever form it may assume, can have any lawful authority outside of the limits of the jurisdiction of the court or judge by whom it is issued; and an attempt to enforce it beyond these boundaries is nothing less than lawless violence.” Ableman v. Booth, 21 Howard 506 (1859).

“The courts are not bound by an officer's interpretation of the law under which he presumes to act.” Hoffsomer v. Hayes, 92 Okla 32, 227 F 417.

Journal: Cato Journal Vol 8, No. 1 – 1988

Author : Bruce Benson

Title : An Institutional Explanation for Corruption of Criminal Justice Officials

Journal: Cato Journal, Vol. 7, No. 2, 1987

Author : Robert Craig Waters

Title : Judicial Immunity versus Due Process: When Should a Judge Be Subject to Suit?

Justice Field in Bradley v. Fisher. (13 Wall) 353 (1871) stated: “...judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction.”

“The doctrine of judicial immunity originated in early seventeenth‑century England in the jurisprudence of Sir Edward Coke. In two decisions, Floyd & Barker and the Case of the Marshalsea, Lord Coke laid the foundation for the doctrine of judicial immunity.” Floyd & Barker, 77 Eng. Rep. 1305 (1607; The Case of the Marshalsea, 77 Eng. Rep. 1027 (1612) were both cases right out of the Star Chamber.

Coke's reasoning for judicial immunity was presented in four public policy grounds:

1. Finality of judgment;

2. Maintenance of judicial independence;

3. Freedom from continual calumniations; and,

4. Respect and confidence in the judiciary.

The Marshalsea presents a case where Coke denied a judge immunity for presiding over a case in assumpsit. Assumpsit is a common‑law action for recovery of damages for breach of contract. Coke then explained the operation of jurisdiction requirement for immunity:

“[W]hen a Court has (a) jurisdiction of the cause, and proceeds iverso ordine or erroneously, there the party who sues, or the officer or minister of the Court who executes the precept or process of the Court, no action lies against them. But (b) when the Court has no jurisdiction of the cause, there the whole proceeding is [before a person who is not a judge], and actions will lie against them without any regard of the precept or process...”

Although narrowing the availability of judicial immunity, especially in courts of limited jurisdiction, Coke suggested that there was a presumption of jurisdiction and that the judge must have been aware that jurisdiction was lacking.

Thus, questions of personam, rem and res jurisdiction are always a proper issue before the court to obviate the defense that the court had no way to know they lacked jurisdiction. “Stump v Sparkman Revisited” continues to show it was Chief Justice Kent (circa 1810) that was instrumental in establishing the “doctrine” of Judicial Immunity in America, in Yates v. Lansing, 5 Johns 282. Thereafter Justice incorporated the “doctrine” in two cases: Randall v. Brigham, 74 U.S. (7 Wall.) 523, and Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1871). Both Yates and Randall dealt with officers of the court.

“The belief that Bradley narrowed the scope of the doctrine represents a serious misunderstanding of the decision. First, Bradley provides no authority for the belief that a judge of general jurisdiction may be liable for acts taken in absence of subject matter jurisdiction. The distinction between excess of jurisdiction and absence of jurisdiction in the opinion is simply explanatory. Because a court of general jurisdiction has jurisdiction over all causes of action, a judge of such a court will always be immune for his judicial acts, even if he exceeds his authority. See Bradley, 80 U.S. at 351‑52.”

CASE NOTE: “Federal tort law: judges cannot invoke judicial immunity for acts that violate litigants civil rights; Robert Craig Waters. Tort & Insurance Law Journal, Spr. 1986 21 n3, p509‑516"

A Superior Court Judge is broadly vested with “general jurisdiction.” Evidently, this means that even if a case involving a particular attorney is not assigned to him, he may reach out into the hallway, having his deputy use “excessive force” to haul the attorney into the courtroom for chastisement or even incarceration. Mireles v. Waco, 112 S.Ct. 286 at 288 (1991). Arguably, anything goes, in a Superior Court Judge’s exercise of his “general jurisdiction”, with the judge enjoying “absolute judicial immunity” against tort consequences. Provide he is not divested of all jurisdiction.

A Judge is not immune for tortious acts committed in a purely Administrative, non‑judicial capacity. Forrester v. White, 484 U.S. at 227‑229, 108 S.Ct. at 544‑545; Stump v. Sparkman, 435 U.S. at 380, 98 S.Ct. at 1106. Mireles v. Waco, 112 S.Ct. 286 at 288 (1991).

“Judicial officers are entitled to absolute immunity from claims for damages arising out of acts performed in the exercise of their judicial functions.” Boyd v. Biggers, 31 F.3d 279, 285 (5^th Cir. 1994) (citing Graves v. Hampton, 1 F.3d 315, 317 (5th Cir. 1993)). However, a judge has no immunity for 1) actions taken outside of his judicial capacity, or 2) for actions that are judicial in nature, but occur in the complete absence of all jurisdiction. Malina v. Gonzales, 994 F.2d 1121, 1124 (5th Cir. 1993) (citing Mireles v. Waco, 502 U.S. ---, 112 S.Ct. 286, 288, 116 L.Ed.2d 9 (1991)).

Administrative‑capacity torts by a judge do not involve the “performance of the function of resolving disputes between parties, or of authoritatively adjudicating private rights,” and therefore do not have the judicial immunity of judicial acts. See: Forrester v. White, 484 U.S. 219, 98 L.Ed.2d 555, 108 S.Ct. 538 (1988); Atkinson‑Baker & Assoc. v. Kolts, 7 F.3d 1452 at 1454, (9th Cir. 1993). A Judge as a State Actor is not vested with the sovereign immunity granted to the State itself . See: Rolfe v. State of Arizona, 578 F.Supp. 987 (D.C. Ariz. 1983); Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, (9th Cir, 1981) cert. granted Kush v. Rutledge, 458 U.S. 1120, 102 S.Ct. 3508,73 L.Ed.2d 1382, affirmed 460 U.S. 719, 103 S.Ct. 1483, 75 L.Ed.2d. 413, appeal after remand 859 F.2d 732, Ziegler v. Kirschner, 781 P.2d 54, 162 Ariz. 77 (Ariz. App., 1989).

It is said that absolute judicial immunity is favored as public policy, so that judges may fearlessly, and safe from retribution, adjudicate matters before them. True. But equally important, is the public expectation that judicial authority will only be wielded by those lawfully vested with such authority.

The history of Arizona’s admission to the Union reveals at least one reason why historic public policy in Arizona would favor ARCP Rule 42(f)(1)'s complete and expeditious divestiture of jurisdiction, and its concurrent divestiture of absolute judicial immunity in the event a renegade judge persists in wielding the tools of his office after having been affirmatively stripped of them.

In 1912, the U.S. Congress refused to admit Arizona to the Union for the stated reason that Arizona's proposed Constitution provided the public with a mechanism for removing sitting judges from office. Joint Res. No. 8, 8/21/11, 37 U.S. Stat. 39, cited in Vol. 1, Ariz. Rev. Stats., p.130. To facilitate admission to the Union, the judge‑removal mechanism was excised from the State Constitution, allowing Arizona to become a State on 2/14/12. Soon afterward, on 11/5/12, Arizona voters restored the mechanism by amendment. Ariz. Constitution, Art. VIII “Removal from Office”, section 1; A.R.S. Vol. 1, p. 178. So strong was the citizens' distrust of sitting State Court Judges in Arizona, that after Arizona copied the Federal Rules of Civil Procedure, it added the present Rule 42(f)(1) to provide a mechanism for a litigant to permanently remove the assigned judge from the case.

The difference between selectively disabling a judge in various aspects of adjudication (such as during the appellate period) and the permanent extinguishment of his jurisdiction in a given case, has a logical relevance to a Judge's expectation of enjoying absolute judicial immunity in that case.

In examining entitlement to immunity, the U.S. Supreme Court focused upon the nature of the act: is it an act ordinarily performed by a Judge? Unfortunately, judges sometimes exceed their jurisdiction in a particular case. But an act done in complete absence of all jurisdiction cannot be a judicial act. Piper v. Pearson, id., 2 Gray 120. It is no more than the act of a private citizen, pretending to have judicial power which does not exist at all. In such circumstances, to grant absolute judicial immunity is contrary to the public policy expectation that there shall be a Rule of Law.

Judicial Immunity

Without elaboration, have you considered the cases surrounding judicial immunity? The post by "The International Bar Assn", Sat, 16 Oct 1999 16:45:34 -0700" raised a reasonable question, quote:

“There are already plenty of laws on the books through which judges can be imprisoned, removed, disbarred, de-benched, or otherwise sanctioned ... what makes you think you could get any other law enforced when you have yet to learned how to compel enforcement of those which already exist”?

“Why not use the same time and energy studying exactly how the system works, and learning the processes to compel performance under existing law?”

Examples:

The constitutions for the United States as well as the several states establish immunity for no public official except legislators in debate on the floor of the legislature. Statutes passed granting immunity might rise to the level of unconstitutionality.

Judicial immunity is a contrivance (illusion) of the judicial body politic. Consider the outreach of all public officials claiming immunity and expecting the court to recognize the claim lest testimony and evidence be entered exposing the judicial scam.

Immunity does not exist for any act by anyone for unlawful conduct. The court does not claim immunity for unlawful acts. We, the unwashed public, fail to read what the court says about immunity.

What the courts do claim, and possibly rightly so, is freedom from vexation, harassment and litigation arising from the decisions imposed by a judge. A great number of factors come into play whether the judge acts in a judicial capacity.

In Oklahoma a referendum vote (HJR 508, 1967, passed 1968) gave authority to the legislature (albeit, the public understood it not) to abolish the 7th article of the state constitution. What was left in its place was a new Article 7 and the courts were not judicial in nature.

(a). Immunity [even if a viable doctrine] applies only in judicial courts, where judges act in a judicial capacity, making judicial decisions.

(b) Decisions by tribunals, commissioners, administrators under legislative or executive articles are not judicial courts. The question posed is whether, under what circumstance, immunity is a proper plea, or protection.

(c) Question of jurisdiction requires proper challenge. An Answer as "I have jurisdiction" is correct in certain circumstances. The judge might be in proper jurisdiction, but the man before him in the wrong jurisdiction, and oblivious of the fact.

The point becomes clear when judges subject themselves to civil and criminal liability in the clear and complete absence of:

(a) Personal or subject matter jurisdiction, or both. See: Dykes v. Hoseman, 743 F.2d 1488 (11th, 1984).

(b) Apprizing a judge when he acts in absence of jurisdiction vitiates judicial immunity claims. Dykes.

These and other instances show that a judge does not enjoy absolute immunity. If one or two instances exist, then it would appear there might be three, or four, or twenty different instances where immunity is lost.

The point made with this writing goes to the proposition immunity arises only under strict, narrowly considered parameters. That the acts must be judicial in nature, as a judge, in a judicial setting. First glance leads to the conclusion acts violative of rights not going to the merits of an issue might be the first foot in the door. All the cases I read seem to indicate those suing judges attack the decision and not the possible extra judicial demeanor.

There are several law journals directed to the subject of "Suing Judges". A recent book published is called: "Judicial Impeachment, None Called for Justice, Mary L. Volcansek, University of Illinois Press, 1993, and goes into the Judicial Conduct Act of 1980.

This writing [obviously] is not exhaustive. Many other thoughts in agreement and support with the idea of judicial accountability exist. My experience goes to the concept the mind numbs when too many thoughts become invasive.

Defendants are Acting Outside Their Sworn Duty.

One exception to official immunity exists where the official acts outside of their official duties. Bechard v. Rappold, 287 F.3d 827, 829 (9th Cir. 2002.) See also Thompson v. Ramirez, 597 F. Supp. 730 (1984, D.C. Puerto Rico) (holding that legislators had no immunity where subpoenas issued by legislators had not been issued pursuant to authorized legislative resolution).

The Supreme Court has held in the past the legislative activities may be enjoined despite any claim to legislative immunity. In Bond v. Floyd, Georgia House of Representatives members challenged the seating of anti-war Representative Bond, in spite of his election in accordance with the Georgia Constitution. 385 U.S. 116, 118-124 (1966). The House voted and refused to seat him. Bond filed in Federal District Court for injunctive and declaratory relief. The Supreme Court held that Bond could enjoin his fellow state legislators, ruling invalid the legislators’ attempts to hold Bond to standards stricter than that of the Georgia and United States Constitutions.

Similarly, in Parker v. Merlino, a Federal District Court ruled that legislators received no immunity in such situations. 493 F. Supp. 381 (D.C. N.J. 1980). In Merlino, New Jersey state senators sought to enjoin the Senate president and other senators from depriving any plaintiff senator of the right to speak in accordance with senate rules. The court, although granting the defendants’ motion for summary judgment on the merits, denied the defendants’ claim of legislative immunity. See also Jacobson v. Tahoe Regional Planning Agency, 566 F.2d 1353 (9th Cir. 1977), aff’d in part and rev’d in part on other grounds 440 U.S. 391, (stating that the appointed officials of a bi state planning authority, denominated by the court as regional legislators, although entitled to legislative immunity, such immunity did not necessarily extend to suits for injunctive relief).

Indeed, the Court has limited Congress’ ability to punish its own members. Powell v. McCormack, 395 U.S. 486 (1969); Kilbourn v. Thompson, 103 U.S. 168, 189-90 (1880). If immunity is withheld from Congress in such situations, it must also be withheld from state legislators seeking blanket authority to ignore the votes of fellow members.

By declaring this tax hike “passed” without the constitutional 2/3 majority, Legislative Defendants are no longer acting within their constitutionally authorized roles or within constitutional procedures. Instead, like the Georgia House members in Bond, the seek to ignore the wishes of the voters and ignore the rights of their fellow member. As in Bond, the judicially-created, common law tradition of legislative immunity cannot stand as a barrier to an injustice that offends our constitutional foundations. Defendants have violated their oath to uphold the state constitution and injured plaintiffs in the process. This misconduct removes them from the security normally provided by legislative immunity.

Defendant’s Acts are Inflicting Direct Injury Upon Others.

Further, defendants’ actions are now physically depriving legislative plaintiffs of their vote and voter plaintiffs of the power of their votes and their guarantee clause right to a republic form of government. Such direct injury to others removes defendants from legislative immunity. Supreme Court v. Consumers Union, 446 U.S. 719 (1980) (noting that judges had legislative immunity in promulgation of disciplinary rules, but had no absolute immunity when enforcing them).

The Executive Defendants Seek to Enforce Laws Enacted in Utter Disregard of

the Nevada Constitution.

The executive branch is not immune for the same reasons, but also is certainly not immune from suits preventing it from enforcing unconstitutional laws. Id.; see also Ex parte Young, 209 U.S. 123, 167-68 (1908).

The Legislative Officers Do Not Have Qualified Immunity When Implementing Unconstitutional Acts.

The legislative staff defendants also claim “a type of qualified immunity,” which sounds suspiciously like the long-rejected Nuremberg defense. These officials claim that they were merely complying with the directive of the Nevada Supreme Court to act in violation of the Nevada Constitution. But, contrary to the assertions of defendants, the Nevada Supreme Court did not interpret that Article 4, § 18(2) did not have a 2/3 vote requirement. It specifically acknowledged that there was such a requirement, see, e.g., Guinn, slip. op. at 15 (“Without a two-thirds majority, revenue measures may not be enacted”), and that, despite numerous reasonable methods of reconciling that requirement with the constitutional mandate for educational funding, nevertheless directed the legislature to violate it. These officials thus “had every good reason to know” that their actions violated the 2/3 vote requirement of the Nevada Constitution. See Huemmer v. Mayor and City Council of Ocean City, 474 F. Supp. 704, 720 (D. Md. 1979). Qualified immunity does not attach in such circumstances.

Plaintiffs Have Stated Valid Federal Claims.

For the reasons stated in Plaintiffs’ opening brief, Plaintiffs have stated valid federal claims. The Legislative Defendants’ contention to the contrary seems to be based on the circular argument that the Legislative Defendants could not be violating federal equal protection and due process rights, or the guarantee of a republican form of government, because the Nevada Supreme Court has authorized them to violate the Nevada Constitution.

But the Nevada Supreme Court can no more authorize an unconstitutional action than could the Governor or Legislature itself. Indeed, such a claim bears an eerie resemblance to some of the defenses made against federal court enforcement of civil rights laws. Such claims were rejected then, and they should be rejected now. As the District Court for the District of Arkansas noted in the midst of state court recalcitrance to the commands of Brown v. Board of Education, “the questions now presented in [the federal court] forum are essentially federal constitutional questions which would probably not be eliminated by State court construction ¼.” Dove v. Parham, 181 F. Supp. 504, 512-13 (D. Ark. 1960) (citing Harrison v. N.A.A.C.P., 360 U.S. 167, 177 (1959)).

Plaintiffs’ Irreparable Injury.

The Legislative Defendants do not take issue with Plaintiffs’ claims of irreparable injury, and the Governor contends in his brief only that Plaintiffs’ claims of injury are merely speculative. There is nothing speculative about the vote dilution claims of the Assembly Plaintiffs: their votes against the Assembly’s tax increase have already been diluted below what the Nevada Constitution commands. The cases relied upon by the Governor are therefore entirely inapposite.

Moreover, in addition to the harms identified in Plaintiffs’ opening brief, Plaintiffs bear a real risk that if the preliminary injunction is not granted, they will forever be precluded from challenging the unlawful procedures by which the tax increase was enacted. The Senate has scheduled a session for 2:00 p.m. on Wednesday to consider anew the tax increase adopted by the Assembly on Sunday. See http://ww.leg.state.nv.us (visited July 16, 2003). Should it pass, as is expected, it is at least arguable that, under the enrolled bill rule, courts will not look behind the statute once certified to assess the validity of the procedures that led to its adoption. Field v. Clark, 143 U.S. 649 (1892); United States v. Stahl, 792 F.2d 1438, 672 (9th Cir. 1984).

State Court Interpretations of State Law Cannot Be Arbitrary.

Finally, the Governor rests heavily on the claim that the Nevada Supreme Court has the final say in interpretations of state law. While true as a general matter, the principle is not without due process limits, and the limits have clearly been breached here.

“The basic due process concept involved is the same as that which the [Supreme] Court has often applied in holding that an unforeseeable and unsupported state-court decision on a question of state procedure does not constitute an adequate ground to preclude [the] Court’s review of a federal question.” Bouie v. City of Columbia, 378 U.S. 347, 354 (1964). In the analogous “adequate and independent state law grounds” context of Supreme Court practice, the Supreme Court has developed a set of rules for determining whether a state court’s interpretation of its own law is “adequate” to avoid federal court scrutiny. Foremost among these rules is that the courts must not violate “firmly established and regularly followed” state law rules. Lee v. Kemna, 534 U.S. 364, 376 (2002). State law determinations that are “so certainly unfounded ¼ properly may be regarded as essentially arbitrary.” Enterprise Irr. Dist. v. Farmers’ Mut. Canal Co., 243 U.S. 157, 164-65 (1917). There are “exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate” to prevent federal review. Lee, 534 U.S. at 376.

Under this standard, the Nevada Supreme Court’s “interpretation” of state law is wholly inadequate to be given dispositive weight, particular where its ruling is so arbitrary as to raise serious due process concerns. It ordered a remedy that no party had requested. It Plaintiff’s Memorandum in Support of Application for TRO and Order to Show Cause --

“Suing Public Officials”

Government entities and their insurance carriers should take note of a sea change in qualified immunity jurisprudence. The defense of qualified immunity to constitutional rights violations is increasingly and, in many instances, appropriately coming under attack since the U.S. Supreme Court ruled against defendant officials last June in a case involving a prisoner punished by being lashed to a hitching post. Not too long ago, the First, Fifth, Sixth, Eighth and Eleventh Circuits each decided cases involving constitutional rights claims, and in each such case where the affirmative defense of qualified immunity was raised, the “state actor” was not entitled to its protection.

If that statistic isn’t enough to raise the neck hairs of an insurance executive, there’s more. Also, not so long ago, the U.S. Supreme Court shipped back to the Eleventh Circuit a civil rights case against two police officers and the largely self-insured city of Boynton Beach, Florida with instructions to reconsider the case in light of its June ruling. In that ruling, Hope v. Pelzer, the Supreme Court held that the critical issue concerning qualified immunity is whether the defendant official had “fair notice” that his conduct was unconstitutional.

Prior to the Hope ruling, the Eleventh Circuit had reversed a federal jury award of $6 million to a shooting victim, ruling that the police officers were entitled to qualified immunity for their actions because no similar case had been tried. As a result, the officers could not have known what they were doing was wrong, the Eleventh Circuit reasoned in granting them qualified immunity. The Supreme Court’s order effectively puts the officers and the city back on the liability hook.

United States Code, Title 42, Section 1983 is the federal statutory cause of action that allows a person to sue a government officer or entity for a deprivation of federal constitutional rights. Section 1983 states that “[e]very 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.” 42 U.S.C. §§ 1983 (1994). To recover damages against a government official under section 1983, a plaintiff must establish that a constitutional right exists, that the defendant violated that right under color of state law, and that the defendant’s acts proximately caused the plaintiff's injury.

A public official who engaged in constitutional wrongdoing may nonetheless avoid liability by invoking the affirmative defense of qualified immunity. Qualified immunity insulates officials from liability for conduct that “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The Court later stated that: “The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful ... but it is to say that in the light of pre-existing law the unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635, 640 (1987) (citations omitted).

As a practical matter, qualified immunity led to the dismissal of a significant percentage of civil rights cases against public officials, until the Hope decision threw up its major roadblock. In December, the Supreme Court will hear oral arguments in Chavez v. Martinez (No. 01-1444) and address whether the Ninth Circuit was correct in holding that the conduct of an officer making a stop and use of deadly force in a narcotics case was so offensive as to deny him qualified immunity. Government actors, their insurers and those of us concerned about government disregard for constitutional rights must closely follow this case as it provides another opportunity for the Court to reduce blanket use of the qualified immunity defense.

"Qualified Immunity" Case Disguised as "Hitching Post" Case

We are all guilty of it: merely scanning newspaper headlines and reading the entire article only if the headline grabs our attention. The shortsightedness of that habit, however, recently became more apparent.

On Thursday, April 18, 2002, the New York Times ran an article headlined "U.S. Joins Inmate in Prison Discipline Case —— Justices Weigh Liability for Shackling Convict to a Post for 7 Hours." Another Eighth Amendment prisoners’ rights case, right? Wrong!

The United States Supreme Court did not grant certiorari in the case to determine whether the inmate has alleged a violation of a constitutional right. The lower court resolved that issue in favor of the prisoner. Reading below the headline, really much further into the article, you learn that the real questions the Court agreed to resolve involve the law of qualified immunity.

Although not the subject of this piece, the underlying facts of the case do involve a prisoner’s claim of cruel and unusual punishment for being twice shackled to a hitching post for disruptive behavior on a chain gang. We leave it to others to comment on whether tying a prisoner to a hitching post for seven hours, in the heat of the day, with limited access to water or a restroom, violates the inmate’s constitutional rights under the Eighth Amendment. Even PETA could file an amicus on that issue.

In Hope v. Pelzer (No. 01-309), the first question posed by the Court is “whether state officials, sued in their individual capacities under 42 U.S.C. 1983, are entitled to qualified immunity unless they have violated statutory or constitutional rights “clearly established” by a case presenting facts “materially similar” to those in the plaintiff’s case.” Depending on the Court’s answer to that key question, it may then address the second question -- “[w]hether under the circumstances that must be taken as true at the summary judgment stage of this case, tying a prisoner to a “hitching post” violates “clearly established” constitutional rights for purposes of qualified immunity” in a section 1983 action. Again we leave for others to debate whether “hitching post” case law is clearly established.

The potential impact on the law of qualified immunity is vitally important to all of us. The law, 42 U.S.C. 1983, provides, in pertinent part, that “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . , subjects, or causes to be subjected, any citizen . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured . . ..” In general, however, courts have recognized the need to protect government employees from meritless and unduly burdensome litigation that may interfere with the exercise of lawful discretion in their official functions. Government officials who act in their official capacity are entitled to some form of immunity from suits for damages. Depending upon the status of the official, immunity can be either absolute or qualified, with absolute immunity being reserved in most instances to legislators, prosecutors, and judges. Qualified immunity, however, is dependent both on the status of the individual and the facts of the case, with executive officials, who usually do not make the same type of policy decisions as legislators, being limited to raising a qualified immunity privilege rather than enjoying absolute immunity. Twenty years ago, the Supreme Court established that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

In Saucier v. Katz, 121 S. Ct. 2151 (2001), the Supreme Court recently adopted a two step procedure for considering qualified immunity claims. The threshold inquiry the Court explained is whether the alleged facts show a constitutional violation. If they do, then the court must determine whether a reasonable officer would have thought that the alleged act was lawful in light of clearly established law and the factual information possessed at the time. This decision commands officials to look for a controlling decision on-point or a consensus of persuasive authority before acting in a manner that could give rise to a lawsuit alleging that the officer’s conduct was unlawful in the situation he confronted.

But, how apparent must the lawfulness be? Case law makes evident that where the claimed constitutional right is not unequivocally set out in the text of the Constitution itself, it is necessary to turn to case law for analysis. The Supreme Court made it clear in United States v. Lanier, 520 U.S. 259, 271 (1997), that a constitutional rule identified in the decisional law may apply with obvious clarity to a new case. Where, however, officers of reasonable competence could disagree on the lawfulness of the conduct, then “immunity should not be recognized.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

Let’s remember that courts should not be called upon to protect “the plainly incompetent [and] those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335 (1986). In an era of un-accountability, how much leeway should we be willing to give a government officer who claims ignorance of law? What if that officer is the clerk of a court, who has unending opportunities to be familiar with the laws and the Constitution? (See The Court vs. the Press: A Case in Point ) What if the officer is the Mayor, who presumably has taken an oath to uphold the Constitution and the laws of the land, who after being advised that her conduct is unconstitutional she continues to act in an unlawful manner, raising as her shield a law that is unconstitutionally vague and overbroad?

Couldn’t the latter situation also give rise to the municipality being subject to liability under section 1983 for the unconstitutional or otherwise illegal acts of its agent? It is clear that municipal liability would attach where an express policy is ruled unconstitutional and could attach where the constitutional violation results from the application of otherwise valid policies. But a city’s liability for its agent’s actions is an entirely separate subject from the one under consideration by the Supreme Court, a legal conundrum demanding its own rigorous analysis.

Regardless of your view on prisoners’ rights, Hope v. Pelzer should be watched closely. Federal, state and local government officials and all citizens should be concerned about the standard of review in a situation where a government official raises a qualified immunity defense. A clear standard needs to be adopted for section 1983 claims and the Supreme Court seems poised to give much-needed guidance to the lower federal and state courts.

Because most state and local governments not only indemnify their employees against such judgments, but also assume the costs of their defense, insuring that government officials are well informed and cautious when their conduct may have constitutional implications is imperative to everyone, whether personally involved or just footing the bill. Section 1983 lawsuits deter some unlawful behavior. Some argue they also make it more difficult to recruit and retain high quality employees. This excuse for broad qualified immunity is counterintuitive, however, because it seems more likely that a “high quality employee” would be more mindful of the laws and less likely to end up in a situation needing to invoke the qualified privilege. In any event, the privilege should yield to constitutional rights and the Supreme Court should not extend the zone of immunity from personal liability for government officials.

From accidents to zoning disputes, judges and juries across the country depend on the reasonable person to help them decide cases. Would the reasonable person have swerved to avoid the collision? Would the reasonable person know that foul balls fly into stands at baseball games? Would the reasonable person reach his hand into a snow blower before turning it off?

The reasonable person also plays an important role in libel cases, as an offended subject cannot successfully sue a newspaper or broadcast station without first proving that the reasonable person understood the report to communicate a false statement of fact about him or her. If the recent opinion in New Times, Inc. v. Isaacks is any indication, however, Texas judges don’t think much of their state’s reasonable person.

At issue in Isaacks was a satire published in the Dallas Observer, a weekly alternative tabloid known for its investigative reporting. Written by reporter Rose Farley, the faux news story ridiculed the way Judge Darlene Whitten and Denton County District Attorney Bruce Isaacks handled the case of 13-year-old Christopher Beamon, who had written a story depicting the shooting deaths of a teacher and two students. At Isaacks’ request, Whitten ordered Beamon held in custody for five days while Isaacks considered delinquency charges.

In the satire, which was headlined “Stop the Madness,” Farley wrote that Whitten had ordered a 6-year-old student detained for 10 days for a book report the student had written about the children’s classic, Where the Wild Things Are. The article quoted Whitten as saying, “Any implication of violence in a school situation, even if it was just contained in a first-grader’s book report, is reason enough for panic and overreaction.”

The article also quoted Isaacks as saying, “We’ve considered having [the student] certified to stand trial as an adult, but even in Texas there are some limits.” That Farley’s tongue was planted firmly in cheek also was evident by her report that courthouse security officers had ordered the student shackled because her school record contained “reprimands for spraying a boy with pineapple juice and sitting on her feet.” The article then went on to explain the Beamon case.

Unfortunately, Farley’s attempts at humor were lost on many. Some readers believed the article referred to a real case and complained to the paper about the officials’ conduct. Other readers complained directly to Isaacks and Whitten. Some local news media contacted Isaacks and Whitten for comment about the “case.” At the officials’ request, the Observer clarified in its next edition that the article had been a satire. In that clarification, the Observer described those who had believed the article to be true as “cerebrally challenged” and “clueless.”

Unsatisfied, Whitten and Isaacks sued the Observer, alleging the paper had intentionally published false and defamatory statements about them. The Observer asked the trial court to dismiss the case, primarily on the grounds that no reasonable person could have understood the article to refer to a real case. The trial court, citing the reaction to the article, refused the paper’s request.

The appellate court affirmed. While recognizing that “[s]atire and parody are among the proven and recognized tools utilized by writers to illustrate a political point,” the court said the lawsuit could proceed because the article failed “to provide any degree of notice to the reasonable reader that it was a satire or parody.”

In reaching this conclusion, the court inexplicably ignored the “notice” within the article (the headline, the unbelievable fact pattern and the ridiculous “quotes”) and instead focused on the facts that the satire mentioned real people, used a photograph rather than a cartoon and was published as the lead story in a news section. In this context, the court said, a reasonable reader could have understood the article to be real. In other words, the court appeared to be saying, satire is protected only if it is not very good.

In addition to its dumbing down of the reasonable person, the decision in Isaacks is significant for its failure to recognize that satire —— speech that is intentionally false —— should not be subject to the laws that govern other political speech. In general, speech about public officials is protected unless the speaker knows the statement is false or recklessly disregards whether the statement is true. This “actual malice” standard protects robust public debate by punishing only those speakers who intend to defame public officials.

The actual-malice standard offers no protection for satire, however, and the Observer therefore argued on appeal that the standard in satire cases should be whether the speaker intended to pass off falsity as fact. While a few courts have applied this modified standard in satire cases, the court in Isaacks refused to do so, saying it saw no reason to vary from traditional actual-malice analysis.

The court’s opinion, of course, does not mean Whitten and Isaacks will win their suit. Instead, it means only that they are entitled to attempt to convince a jury that the article was reasonably understood to report that they had jailed a 6-year-old for the content of a book report. Let’s hope the jury’s verdict proves that, despite what the appellate court thinks, the reasonable people of Texas know a satire when they see one.

Lawbreaking is endemic to government. James Madison, a republican without illusions, viewed this as perhaps the most problematic aspect of political life: But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty is this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

Madison taught that the toll of official wrongdoing is not fully measured by harm to individual citizens, that abuses of public power fundamentally threaten the integrity of the legal order itself, eroding the values of a low-abiding people. Justice Brandeis recognized this large danger:

In a government of laws, the existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent, teacher. For good or ill, it teaches the whole people by its example. ... If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.

We know little about the amount or character of official wrongdoing in America, now or in the past. No reliable measures exist or are likely to be devised. Criminal prosecutions and convictions of public officials are increasingly common, but we do not know whether this reflects changed public attitudes toward official behavior, post-Watergate prosecutorial zeal, or growth in actual criminal activity. Civil actions in the federal courts have increased rapidly, at least until recent years. Official statistics, however, reveal only broad, undifferentiated statutory categories, not specific patterns of official wrongdoing. The explosion of such litigation since 1960 certainly reflects the extraordinary proliferation of public law rights and remedies during that period. But it does not necessarily signify that lawless attitudes among officials are more common. Still, the rule of law is probably more precarious today than when Madison, or even Brandeis, wrote. Activist government breeds official misconduct on a large scale. Many ...

SUING THE SCOUNDRELS!

CIVIL ACTIONS AGAINST MUNICIPAL OFFICIALS

FOR DENIAL OF PERMITS OR APPROVALS

Property owners wishing to develop or improve their land are generally required to maneuver through a complex network of land use regulations. In maneuvering through those regulations, property owners often feel victimized by the process and by the officials who administer and promulgate those regulations. While the frustration and expense of obtaining the numerous permits and approvals required to develop or improve land is often inherent in the system, there may be times when the officials charged with administering those regulations intentionally act or fail to act in an unjustified or illegal attempt to prevent the proposed development or improvement of property. During those times there is only one thing you or your client wants to do - sue the scoundrels.

It is every property owners’ dream to be able to collect monetary damages from the “scoundrels”, and it is every municipal official’s nightmare that such an action would be successful. This book attempts to outline the potential causes of action available to property owners who feel they have been victimized by municipal officials acting in bad faith and the immunities available to municipal officials from such actions. The following are the causes of action considered in this article:

Federal and Massachusetts Civil Rights claims under 42 U.S.C. § 1983 and M.G.L. c.12, §§ 11H & 11I; Common Law Actions; and Monetary Remedies under M.G.L. c. 40A, § 17 and M.G.L. c. 41, § 81BB

This writing does not explore potential causes of action for the negligent conduct of municipal officials.

A -- FEDERAL CIVIL RIGHTS ACTION:

Liability of Public Officials Under 42 U.S.C. § 1983

1. Causes of action under § 1983 in the land use area generally arise due to procedural and substantive due process violations and equal protection violations. Both the First Circuit Court of Appeals and the Massachusetts Supreme Judicial Court have examined a number of § 1983.

2. Claims brought against municipal officials and municipalities in connection with the administration of land use regulations. The Courts have been consistent in holding that “run-of the-mill land use disputes” do not constitute a violation of § 1983, even if a denial was made in bad faith, and for invalid or illegal reasons. See e.g., Alton Land Trust v. Town of Alton, 745 F.2d 730, 732 (1st Cir. 1984) (no cause of action under § 1983 for delay caused by “excessive land use regulations”); Chiplin Enterprises, Inc. v. City of Lebanon, 712 F.2d 1524, 1526-28 (1st Cir. 1983) (Damages sought for five year delay between initial application and grant of building permit); Rosenfeld v. Board of Health of Chilmark, 27 Mass. App. Ct. 621, 627 (1989) (no federal constitutional right involved in denial of discretionary variance, and therefore, no cause of action under § 1983).

In commenting on the likelihood of a planning board action giving rise to a § 1983 action the First Circuit has stated that . . . the conventional planning dispute -- at least when not tainted with fundamental procedural irregularity, racial animus, or the like . . . is a matter primarily of concern to the state and does not implicate the Constitution. This would be true even were planning officials to clearly violate, much less “distort” the state scheme under which they operate. A federal court, after all, should not . . . sit as a zoning board of appeals . . . .  Every appeal by a disappointed developer from an adverse ruling by a local Massachusetts planning board necessarily involves some claim that the board exceeded, abused or “distorted” its legal authority in some manner, often for some allegedly perverse (from the developer’s point of view) reason. It is not enough to simply give these state law claims constitutional labels such as “due process” or “equal protection” in order to raise a substantial federal question under section 1983 . . . . Creative Environments, Inc. v. Estabrook, 680 F.2d 822, 833 (1st Cir. 1982). See also Miller v. Town of Hull Mass., 878 F.2d 523 (1st Cir. 1989) (explaining reach of Creative Environments, Inc.).

The reasoning set out by the First Circuit for holding that the general zoning dispute does not give rise to a cause of action under § 1983 is grounded in the proposition that “where state procedures -- although arguably imperfect -- provide a suitable form of pre-deprivation hearing coupled with the availability of meaningful judicial review, the fourteenth amendment guarantee of procedural due process is not embarrassed”. Chongris v. Board of Appeals of the Town of Andover, 811 F.2d 36, 40 (1st Cir. 1987). The fact that there may be no alternative state remedy which provides all of the relief available under § 1983 does not mean that the state remedies are inadequate to satisfy the requirements of due process. Parratt v. Taylor, 451 U.S. 527, 544, 101 S.Ct. 1908, 1917 (1981). The courts are apparently relying on the fact that individuals or entities aggrieved by a wrongful action of a zoning board or planning board have the option of appealing such decision under M.G.L. c. 40A, § 17 or under M.G.L. c. 41, § 81BB. The First Circuit has also stated that no cause of action under § 1983 arises unless a cognizable constitutional right is 3 [harmed] and the court has held that there is no constitutionally cognizable interest in discretionary permits such as special permits and variances. Chongris, 811 F.2d at 43.

The First Circuit has, however, recognized that on rare occasions a denial of a land use permit may form the basis for a § 1983 claim. In Roy v. City of Augusta, 712 F.2d 1517, 1522-24 (1st Cir. 1983), the court held that an applicant for a license stated a § 1983 claim when he alleged that the City Council issued an expired license in defiance of a state court judgment. The state court had ordered the city council to issue the applicant a license to operate his pool and billiard room. The First Circuit reversed the district court’s dismissal for failure to state a claim and remanded for a determination of whether defendants’ actions were sufficiently egregious under the circumstances to rise to the level of a Constitutional violation. Id.

The court stated: we emphasize as a crucial element of Roy's due process claim that he must prove that defendants’ refusal to issue a license was totally without reasonable sanction under the [state court] judgment. If their issuance of an expired license should turn out to be a reasonable, even if incorrect, response to [the state court judgment], defendants would have official immunity, (citation) and, apart from that, with-holding of the license would not have been a subversion of the state’s procedures and the demands of due process . . . . However, if defendants withheld the license in defiance of (the state Court judgment], the act was an act of lawlessness . . . .  [and] we think he might be able to recover damages under section 1983.

The First Circuit is obviously drawing a distinction between bad faith and egregious conduct. In Roy, the court noted that the board’s action would have to be an “act of lawlessness” in order to give rise to a cause of action under § 1983. Under the facts of that case an act of lawlessness would have been presented by the board’s outright defiance of a state court’s order.

The First Circuit has clearly stated, however, that “distortion” of state law does not give rise to a cause of action under § 1983 because most land use disputes involve a claim that the municipal officials exceeded abused or distorted their authority. Creative Environments, 680 F.2d at 833. See also Rosenfeld, 27 Mass. App. Ct. at 628 (intentional, arbitrary, capricious refusal to issue variance not an egregious action which would give rise to cause of action under § 1983). There has in fact been no case decided by the First Circuit where a plaintiff successfully recovered under §1983 for the egregious conduct of municipal officials in administering land use regulations, other than on equal protection grounds. The types of conduct which will rise to the level of egregious conduct is therefore unclear at this time.

Despite the fact that the First Circuit has failed to find a remedy under §1983 for the “run-of-the-mill land use dispute”, other circuits have found to the contrary. See e.g. Bateson v. Geisse, 857 F.2d 1300 (9th Cir. 1988) (cause of action under § 1983 existed where plaintiff was denied substantive due process by zoning authority’s refusal to issue building permit which (plaintiff was entitled to under regulations); Shelton v. City College Station, 754 F.2d 1251 (5th Cir. 1985); Scudder v. Town of Greendale, 704 F.2d 999 (7th Cir. 1983).

1. Claims alleging a violation of equal protection or a violation of first amendment right will, alternatively, form the basis for a § 1983 action. See e.g. Miller v. Town of Hull Mass., 878 F.2d 523 (1st Cir 1989); Heritage Homes of Attleboro v. Seekonk Water Dist., 648 F.2d 761 (1981), cert granted, 454 U.S. 807, cert denied, 454 U.S. 898, on remand, 670 F.2d 1, cert denied, 457 U.S. 1120 and 459 U.S. 829; Cordeco Development Corp. v. Santiago Vasquez, 539 F.2d 256, 260 (1st Cir. 1976), cert. denied, 429 U.S. 978, 97 S.Ct. 488, 50 L.Ed. 386 (1976) . See also Chongris, 811 F.2d at 40 (Court noting that there may be tenable property interest in building permit when it has in fact been issued).

2. Immunities of Municipal Officials to Actions Brought Under § 1983:

Even if the facts surrounding a particular case do give rise to a cause of action under §1983, the immunities enjoyed by public officials under § 1983 still must be addressed. Public officials who perform discretionary functions enjoy a qualified immunity in that they are shielded from liability insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727 (1982). This is an objective test which does not focus of the subjective intent of the official. The official’s bad faith or malice, is therefore, not at issue in determining whether the official is immune from suit under § 1983. Floyd v. Farrell, 765 F.2d 1, 4 (1st Cir. 1985). In view of the First Circuit’s treatment of § 1983 claims centering on land use disputes where equal protection is not at issue, it is unclear whether a municipal official’s conduct would be held to “violate clearly established statutory rights”.

A Cause of Action Against a Public Offcial and What You Must Put into Evidence:

AGAINST A Public Official;

There is no evidence before this court that Public Official is an official of the state of one of the Union of States, or is otherwise a “state actor” within the context of a §1983 action.

However, a private party acting with a Public Official may be held liable under §1983 if he or she is a “willful participant in joint activity with the State or its agents.” Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994). This includes Citizens outside the state or local government. (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1606, 26 L.Ed.2d 142 (1970)).

If a plaintiff charges that “[t]he defendants have conspired, under color of state law to deprive the plaintiff of his/her civil rights, including, but not limited to custody of his/her child because of his/her alleged adultery with a male/female of African American descent.”

Merely pleading a conspiracy is not enough, however. In order to properly establish his/her claim, the plaintiff must allege facts indicating: 1. an agreement between the private and public defendants to commit an illegal act; and 2. an actual deprivation of constitutional rights.

Beyond making a bald allegation, that the defendants engaged in a conspiracy, the plaintiff must alleged facts that would indicate some type of agreement between two defendants or the complaint is insufficient to state a claim against two public officials or between a private party and a public official, and they shall be dismissed from the action. If this is not done, the complaint is insufficient to state a claim against the Public Official or outside defendant, and he/she shall be dismissed from the action under 12(b)(6).

It should always be remembered, however, that municipalities enjoy no immunity for their constitutional torts. A municipality can be liable for a violation of §1983 if one of its municipal official’s decisions constituted an execution or implementation of official policy. Pembaur v.City of Cincinnati, 475 U.S. 469, 477-81, 106 S.Ct. 1292, 1297-99 (1986). The municipality will not be liable on a theory of respondent superior, but rather, the municipality is liable directly for its actions. Id. at 477.

Municipal liability under §1983 may be imposed for a single decision by municipal officials under appropriate circumstances. Where the decision to deny a permit was an “officially sanctioned” act of “authorized decision makers”, the municipality itself is considered to have acted, and therefore, may be liable under § 1983. Id. at 480-81; Bateson, 857 F.2d at 1303. One Massachusetts court has held that there may be a cause of action under §1983 against a municipality in a case where the selectmen imposed improper conditions on the issuance of a permit. See Thompson v. Labossierre, No. 89-1445 (Sup. Ct. Barnstable Sept. 28, 1990) (recognizing cause of action against municipality were Board of Selectmen imposed improper conditions on permit).

“The 8th Circuit found §1983 remedy in “run-of-the-mill land use disputes”, (Littlefield v. City of Afton, 785 F.2d 596 (8th Cir. 1985)), but has sinced overruled that finding. See Chesterfield Development Corp. v. City of Chesterfield, 963 F.2d 1102, 1104 (1992)(explicitly instructed 8th Cir. courts to follow Creative Environments, 680 F.2d 822.)

B -- MASSACHUSETTS CIVIL RIGHTS ACTION: Liability of Public Officials under M.G.L. c. 12, §§ 11H & 11I.

The Massachusetts Civil Rights Act provides a state remedy for interference or attempted interference with either Constitutional rights or those provided by the laws of the United States by way of threats, intimidation or coercion. M.G.L. c.12, §§ 11H & 11I amended by St. 1982, c. 634, § 4. The immunities available to municipal officials in actions brought under the Massachusetts Civil Rights Act are coextensive with those available in actions brought under the Federal Civil Rights Act. See, Duarte v. Healy, 405 Mass. 43, 46-51 (1989).

The types of bad faith actions which this writing is concerned with, usually do not involve threats, intimidation or coercion, and therefore, it is unlikely that the Massachusetts Civil Rights Act will provide a viable remedy for such conduct. The Appeals Court has recently held that a complaint which alleged that the denial of a sewage disposal permit was an “intentional, arbitrary and capricious” act, did not state a claim for relief under the Massachusetts Civil Rights Act because the complaint did not allege any action which could be construed to be a threat, intimidation or coercion. Rosenfeld v. Board of Health of Chilmark, 27 Mass. App. Ct. 621, 627 (1989). See also Pheasant Ridge Assoc. Limited Partnership v. Burlington, 399 Mass. 771, 781 (1987) (court noting that where town acted in bad faith to take by eminent domain land which plaintiff intended to develop, cause of action under State Civil Rights act unlikely because no threat, intimidation or coercion present where public officials express intent to use lawful means to block development).

C -- COMMON LAW CAUSES OF ACTION:

The potential common law causes of actions which generally may arise when municipal officials act in bad faith in administering zoning by-laws or subdivision control laws consist of interference with contractual relations, interference with advantageous economic relations and civil conspiracy. See Nolan, Massachusetts Practice Series, Torts §§ 97-99 (1989) (discussion of elements necessary to establish cause of action for the above referenced torts). When a common law cause of action is brought against a municipality or a municipal official, however, a number of obstacles to any action are presented by the various immunities enjoyed by the municipality or the municipal official.

1. The Impact of the Massachusetts Tort Claims Act on Actions Against municipalities and Municipal Officials:

The Massachusetts Tort Claims Act (the “Act”) sets out standards and limitations on the ability to sue public employers and employees for tortious injuries. See M.G.L. c.258, §§ 1-13.

The primary purpose behind the adoption of the Act was to restructure liability for negligence claims. The Act immunizes public employees for negligent acts while creating liability for public employers for those same acts. Section 10 of the Act, however, provides that the Act shall not apply to intentional torts. See Connerty v. Metropolitan Dist. Comm’n, 398 Mass. 140, 149 n.8 (1986) (§ 10 excludes all intentional torts, including those not specifically set out therein).

Section 10 of the Act also provides that the Act shall not apply to claims based upon the exercise of discretionary functions.

This writing only deals with intentional actions of municipal officials. Moreover, such actions are generally based upon the exercise of discretionary functions by those individuals.

The Act, therefore, should not shield from liability the class of municipal officials with which this writing is concerned.

Although the Act does not eliminate the individual liability of officials for intentional torts and claims arising out of the performance of discretionary functions, it does provide that public employers may indemnify their employees for such claims under limited circumstances and when the employees are acting within the scope of their official duties or responsibilities.

See M.G.L. c. 258, § 9 (indemnification not allowable where civil rights are violated by employee in grossly negligent, willful or malicious manner); Id. at § 13 (no indemnification for intentional violation of civil rights). The Supreme Judicial Court has construed the indemnification provision of § 9A to bar indemnification where the conduct complained of was egregious enough to warrant an award of punitive damages. Pinshaw v. Metropolitan Dist. Comm’n, 402 Mass. 687, 697 (1988). Despite that limitation, this is obviously an attractive provision for plaintiffs who wish to sue a municipal official for an intentional tort where the official is partially or completely judgment proof, so long as the action is not based upon a civil rights violation or upon actions which may be construed as egregious.

2. Common Law Immunities of Municipal officials:

Although the Act provides that it shall not apply to certain types of claims, it does not alternatively provide what principles of liability will govern those excluded claims. Common law principles of liability therefore govern. At common law, public employers were generally immune from liability for the tortious acts of their employees. Spring v. Geriatric Auth. of Holyoke, 394 Mass. 274, 284-86 (1985). Even an intentional tort committed through an official act of a municipal board or agency which interferes with the economic relations of a developer will not generally give rise to common law liability for the municipality itself. See Glannon, Recovery for Civil Rights Violations In Massachusetts: A Comparison of Section 1983 With State Tort Remedies, 28 Suffolk U.L. Rev. 276, 288 (1984). But See Pheasant Ridge Assoc. Limited Partnership, supra (municipality itself acting in bad faith by vote of Town meeting to take land by eminent domain which plaintiff wanted to develop). Public employees and officials, however, are generally liable for their own intentional torts at common law. See Alves v. Hayes, 381 Mass. 57, 58 (1980).

In the case of Gildea v. Ellershaw, 363 Mass. 800 (1973), the Supreme Judicial Court set out the law of the Commonwealth regarding the liability of municipal officials as follows:

[I]f a public officer, other than a judicial officer, is either authorized or required, in the exercise of his judgment and discretion, to make a decision and to perform acts in making of that decision, and the decision and acts are within the scope of his duty, authority and jurisdiction, he is not liable for negligence or other error in the making of that decision, at the suit of a private individual claiming to have been damaged thereby. This rule is presently limited to public officers acting in good faith, without malice and without corruption. Id. at 820.

Unlike the objective immunity for public officials in §1983 actions, the qualified immunity set out in Gildea is based upon subjective good faith. Therefore, an examination of cases involving the immunity of public officials in actions brought under §1983 is not instructive as to when the qualified immunity under Gildea can be overcome. Surprisingly, it seems that most plaintiffs in State and Federal civil rights actions do not bring correlative common law tort actions. There is, therefore, a lack of cases examining what will amount to subjective bad faith in order to overcome the qualified immunity found in Gildea. Presumably, however, a plaintiff would not have to show that the municipal official acted egregiously. Any statements or actions made by officials which evince an intent to manipulate the system in an unlawful or improper manner in order to deny relief to an applicant should satisfy the bad faith requirement. C.f. Pheasant Ridge, 399 Mass. at 776-77 (eminent domain case where bad faith was shown).

In setting forth the rule of liability for public officials in Massachusetts, the Gildea Court expressly avoided use of the word “quasi judicial”, reserving for later consideration whether a nonjudicial, public official performing “quasi judicial” acts could enjoy the absolute immunity normally enjoyed by judicial officials. Gildea, 363 Mass. Id. at 822. If the action of municipal officials in administering land use regulations were considered to be quasi judicial, this open issue could be problematic for any claims based upon common law theories because the officials may enjoy absolute immunity like judicial officials. The First Circuit, however, has noted that zoning hearings are generally not of a judicial nature, rather they are more analogous to political or legislative decisions, despite the fact that they impact on specific individuals. O'Neill v. Town of Nantucket, 711 F.2d 469, 471 (1st Cir. 1983). But see Vitale v. Planning Board of Newburyport, 10 Mass. App. Ct. 483, 486 (1980) (formulation of board of health reports is adjudicatory procedure). Whether or not the administration of a particular matter is construed to be adjudicatory may not be determinative because subsequent to Gildea the Supreme Judicial Court has suggested in dicta that only qualified immunity should apply to non-judicial public officials performing adjudicatory functions. See, Sherman v. Rent Control Board of Brookline, 367 Mass. 1, 7 (1975) (commenting that individual members of rent control board would have personal immunity for their actions if they acted in good faith, without malice and without corruption). It is therefore unlikely that municipal officials administering land use regulations enjoy more than the qualified immunity set out in Gildea.

The qualified immunity set out in Gildea only applies to public officials acting within the scope of their official duties or responsibilities. See Joyce v. Hickey, 337 Mass. 118 (1958) (holding that judge who held an attorney in criminal contempt was not absolutely immune to suit if he in fact was not considering a matter permissible for judicial inquiry). Moreover, Gildea only applies to public officials performing discretionary acts. A municipal official performing ministerial functions, such as certain actions of a building inspector, would not enjoy the qualified immunity set out in Gildea. See Breault v. Chairman of the Board of Fire Commissioners of Springfield, 401 Mass. 26 (1987) (no common law immunity for intentional ministerial acts of public officials).

The standard set out in Gildea does not set forth a cause of action, rather it provides a qualified immunity for public officials. An individual or entity injured by the actions of a municipal official must still set forth an independent cause of action in order to successfully bring an action against a municipal official.

Because this writing does not seek to explore the available causes of action against municipal officials for negligent actions, the common law public duty doctrine and the general rule of liability for misfeasance of ministerial acts is not discussed. For a discussion of these issues as they relate to the land use area see the recent Superior Court Case of Zocchi v. The Daley Agency, No. 89-509 (Sup. Ct., Berkshire Sep. 26, 1990) (conservation commission not liable to applicant for negligence because no special duty owed to applicant, rather duty owed to public).

D -- MONETARY REMEDIES PROVIDED BY G.L. c. 40A. § 17 & M.G.L. c. 41., § 81BB

If an individual is economically harmed by the bad faith actions of municipal officials administering zoning or subdivision regulations and for whatever reason he or she does not have an independent cause of action for monetary relief, there still may be hope for recovering some losses in a c. 40A, § 17 or a c. 41, § 81BB appeal. Section 17 of Chapter 40A provides that “[c]osts shall not be allowed against the board or special permit granting authority unless it shall appear to the court that the board or special permit granting authority in making the decision appealed from acted with gross negligence, in bad faith or with malice”. Section 81BB of Chapter 41 provides that “[c]osts shall not be allowed against the planning board or board of appeals unless it shall appear that such board acted with gross negligence or in bad faith”. The above two provisions give the reviewing court the authority to impose costs on municipal boards for decision under appeal. Exactly what costs may be awarded are not specified in either section.

At least one Massachusetts court has construed the costs provision in § 81BB to entail more than just court costs. In Yeadon v. The Grafton Planning Board, No. 87-2239 (Sup. Ct. Worcester May 11, 1990) the Worcester Superior Court was reviewing the denial of a subdivision approval. The court in that case made extensive factual findings regarding the bad faith actions of the planning board and its chairman, and based upon those findings ruled that the Planning Board's disapproval was in bad faith.

The court in Yeadon, while noting that no court had decided what the term “costs”means, stated that court costs in that case would be a “pittance” against the unnecessary engineering costs and attorney’s fees suffered by the plaintiff. Id. at 16. Relying on Young v. Planning Board of Chilmark, 402 Mass. 841, 847 (1988), the court awarded forty-seven thousand dollars ($47,000.00) in engineering costs which the court found were incurred unnecessarily due to the planning boards actions. The Court, in reliance on M.G.L. c. 231, §6f, also awarded attorney’s fees and computed interest as provided for by that section on the grounds that the planning board's “defenses” were not advanced in good faith.

In Young v. Planning Board of Chilmark, the Supreme Judicial Court upheld a trial court’s decision not to award costs and attorney’s fees where the court had found that the planning board, although erring as a matter of law, acted neither in bad faith nor with gross negligence. Young, 402 Mass. at 841. In so holding, the court cited inter alia, to M.G.L. c. 231, § 6f, thereby implying that attorneys fees, costs and expenses would be a proper remedy if the requirements of that section were met. Section 6f provides that:

Upon motion of any party in any civil action in which a finding, verdict, decision, award, order or judgment has been made by a judge or justice . . . the court may determine, after a hearing, as a separate and distinct finding, that all or substantially all of the. . . defenses, . . . whether of a factual, legal or mixed nature, made by any party who was represented by counsel during most or all of the proceeding, were wholly insubstantial, frivolous and not advanced in good faith . . . . If such a finding is made with respect to a party’s defenses . . . the court shall award to each party against whom such defenses. ..were asserted . . . an amount representing the reasonable counsel fees and other costs and expenses incurred in defending against such claims . . . . [and]; interest on the unpaid portion of the monetary claim at issue in such defense . . . at one hundred and fifty percent of the rate set in section six C from the date when the claim was due . . . . While it is unclear how other courts will construe the “costs” provision in §§ 17 & 81BB, parties appealing under either of those section should, in cases of gross negligence or bad faith, include in their complaint a prayer for costs incurred due to a municipal board’s actions. If during the pendency of the action the defendant municipal board consistently advances defenses which are wholly insubstantial, frivolous and not advance in good faith, then the plaintiff should move to have costs, attorneys fees and expenses assessed against the defendant as well as having interest computed thereon as provided for by §6F.

What is the difference between a claim and a complaint?

If you want to recover damages for a personal injury that was caused by a county or city jail official (that is, a correctional staff counselor, guard, medical person or other jail employee), you must bring an action against the local public entity and/or the local government employee(s). For example, if a sheriff’s deputy deliberately injured you using unwarranted force or caused you to be injured through his or her carelessness while you were in the custody of that county jail, you would bring an action against the county and/or sheriff that caused or was responsible for causing the injury, even though you have since been transferred to a state or federal prison.

This booklet provides information on how prisoners can bring a personal injury or “tort” claim action on their own, in propria persona (in pro per). Before you can file a personal injury lawsuit against a public entity in state court, you must first pursue a tort claim action. Even though tort claims brought by prisoners are often rejected, you must file a claim before you can get into court.

Representing yourself in a personal injury action is difficult, so finding a lawyer to handle your case is certainly preferable. However, locating a willing attorney will not be easy for most prisoners. Expect the local governmental entity you are suing to contest the action, which means the opposing attorney may file and serve you with various motions that you must respond to. Anticipate a burdensome exchange of paperwork. If you are pursuing this action while still incarcerated, serving legal papers on the opposing side can be a problem. None of this is intended to discourage you from seeking recovery for your injury, but to prepare you for the legal battle that lies ahead.

I emphasize that the scope of this part of the booklet is only to address claims to be brought against a county and/or its jail officials. Most jails are run by a county sheriff, who answers to the authority of the local governmental body. A jail is distinguished from a state prison, which is under the power of the California Department of Corrections, a state governmental agency. If your injury was the result of the deliberate or negligent action of a state prison employee, you would sue the state prison officials responsible. Rather than filing a claim against the responsible county or county employee, you would present a formal claim to the State Board of Control. For further information on how you should proceed in that situation, we recommend that you read the Prison Law Office’s excellent memo on “Lawsuits for Money Damages against Prison Officials.” To receive a copy, write the Prison Law Office at General Delivery, San Quentin, CA 94964. A copy of the Board of Control claim is attached as Appendix F.

Whom can I sue?

Under most state law, a city or county entity is statutorily immune from liability (that is, the entity cannot be sued) for most injuries to prisoners and others. These local public entities may be held liable only in limited circumstances. You can sue them only when your personal injury claim for money damages is based on:

Failure to summon medical care for a prisoner known to be in need of immediate medical care; Injuries sustained by a prisoner participating in biomedical or behavioral research;

Injuries caused by a county jail employee’s negligent operation of a motor vehicle, such as in transporting a prisoner from one place of custody to another; Injuries intentionally caused by a county jail employee (assault and battery) in the course of enforcing the law; Damage suffered as a result of a breach of a contract; Intentional and unjustifiable interference with the right to obtain judicial review of the legality of confinement when it has been first determined that the confinement was illegal; Liability arising under the workers’ compensation law; Claims for non-monetary relief.

What is the difference between a claim and a complaint?

A claim is the “assertion of a right to money or property”. (Barron’’s Law Dictionary) A claim must include an allegation of an injury and a “prayer for damages”, which is essentially a request for some sort of compensation. Before you can bring a lawsuit, you must first present a written, formal claim to the board of the local governing body.

A complaint is the legal document you file with the court to formally begin a lawsuit. (See Appendix G). A complaint must include the facts that you think entitle you to some relief from the court.

Suing the Federal Government for Civil Rights Violations