Subject: Amendment XI to the U.S. Constitution: Information from Answers.com
Date: Tue, 29 Mar 2011 17:49:10 -0500
Amendment XI to the U.S. Constitution
Oxford Companion to the US Supreme Court
Eleventh Amendment Is one of only two constitutional amendments adopted explicitly to repudiate a Supreme Court decision—the other being the Sixteenth Amendment (see Reversals of Court Decisions by Amendment). The Eleventh Amendment overturned Chisholm v. Georgia (1793), which upheld the right of a citizen of one state to sue another state in an original action in the Supreme Court, and which, it was feared, would allow financially ruinous suits against the states for payment of Revolutionary War debts.
Despite its brevity—a mere forty‐three words—the Eleventh Amendment has been cited as authority for an elaborate and perplexing body of jurisdictional rules extending far beyond its actual language. It has been reconceptualized as a broad doctrine of state sovereign immunity. The Eleventh Amendment by its terms denies federal courts the power to decide suits against states brought by two classes of plaintiffs: "Citizens of another State" and "Citizens or Subjects of any Foreign State." Although referring only to suits "in law or equity," the amendment was held in Ex parte New York (1921) to apply as well as to suits in admiralty jurisdiction. In the landmark federal jurisdiction case Hans v. Louisiana (1890), the Court extended the reach of the amendment by holding that citizens could not sue their own states in federal court. In Monaco v. Mississippi (1943), the Court denied federal jurisdiction over suits against states brought by foreign sovereigns, and in Seminole Tribe of Florida v. Florida (1996), it held that the bar also applied to suits by Native American tribes. In Alden v. Maine (1999), the Court ruled that Congress could not authorize private suits against states in state court, and in Federal Maritime Commission v. South Carolina Ports Authority (2002), it further barred proceedings against states before federal administrative agencies.
The Supreme Court in Alden v. Maine (1999) and other recent cases has referred to the doctrine of sovereign immunity as a broad principle deriving "not from the Eleventh Amendment but from the structure of the original Constitution itself" (p. 728) and to the phrase "Eleventh Amendment immunity" as "convenient shorthand" for a principle that "neither derives from nor is limited by the terms of the Eleventh Amendment" (p. 713). The most prominent dissenting view, both in these closely divided decisions and in the scholarly commentary, is that the Eleventh Amendment was intended only to reverse the holding in Chisolm v. Georgia, which permitted access to federal courts under Article III's grant of diversity jurisdiction for suits between "a State and Citizens of another state." Under this view, the Eleventh Amendment would not prevent federal question suits against states.
Because restrictions on federal judicial power may threaten important national goals, the Eleventh Amendment and state sovereign immunity are subject to a number of significant exceptions. State immunity from suit does not extend to political subdivisions of states, such as counties and towns. Federal courts are open to suits against states brought by the United States or by other American states representing their own interests. States may waive the amendment and consent to suit—this despite the general rule that parties may not confer jurisdiction in court—so long as their waiver of immunity is explicit. Furthermore, Congress may abrogate sovereign immunity by virtue of its section 5 enforcement powers under the Fourteenth Amendment. In the landmark case of Seminole Tribe of Florida v. Florida (1996), however, the Court held that Congress may not abrogate sovereign immunity under any other source of power (or, read more narrowly, under any source of power predating the Eleventh Amendment), overruling Pennsylvania v. Union Gas Co. (1989), which had permitted Congress to abrogate pursuant to the Commerce Clause. Congressional power to abrogate under section 5 of the Fourteenth Amendment is itself subject to significant judicial oversight. Expanding on its holding in City of Boerne v. Flores (1997) that laws passed pursuant to the section 5 power must be narrowly tailored to addressing constitutional violations, the Court found that a series of laws—involving patent infringement, age discrimination, and discrimination against the disabled—exceeded the section 5 power of Congress and therefore could not be the basis for suits against state governmental entities.
A final important restriction on state immunity is the doctrine of Ex parte Young (1908), which permits suit against state officers for unconstitutional acts, though this is in effect a suit against the state itself. However, suits against state officers in which the remedy for past wrongs would be paid for out of the state treasury are still barred under the amendment (Edelman v. Jordan, 1974), effectively limiting the Ex Parte Young action to injunctive suits.
The line of 5 to 4 decisions, beginning with Seminole Tribe in 1996, evidences an entrenched split between a majority that views sovereign immunity less as a protection for state treasuries than as a broad principle concerned with safeguarding the dignity of the states, and a minority that would construe the Eleventh Amendment far more narrowly.
See also Constitutional Amendments; Judicial Power and Jurisdiction.
Despite its brevity—a mere forty‐three words—the Eleventh Amendment has been cited as authority for an elaborate and perplexing body of jurisdictional rules extending far beyond its actual language. It has been reconceptualized as a broad doctrine of state sovereign immunity. The Eleventh Amendment by its terms denies federal courts the power to decide suits against states brought by two classes of plaintiffs: "Citizens of another State" and "Citizens or Subjects of any Foreign State." Although referring only to suits "in law or equity," the amendment was held in Ex parte New York (1921) to apply as well as to suits in admiralty jurisdiction. In the landmark federal jurisdiction case Hans v. Louisiana (1890), the Court extended the reach of the amendment by holding that citizens could not sue their own states in federal court. In Monaco v. Mississippi (1943), the Court denied federal jurisdiction over suits against states brought by foreign sovereigns, and in Seminole Tribe of Florida v. Florida (1996), it held that the bar also applied to suits by Native American tribes. In Alden v. Maine (1999), the Court ruled that Congress could not authorize private suits against states in state court, and in Federal Maritime Commission v. South Carolina Ports Authority (2002), it further barred proceedings against states before federal administrative agencies.
The Supreme Court in Alden v. Maine (1999) and other recent cases has referred to the doctrine of sovereign immunity as a broad principle deriving "not from the Eleventh Amendment but from the structure of the original Constitution itself" (p. 728) and to the phrase "Eleventh Amendment immunity" as "convenient shorthand" for a principle that "neither derives from nor is limited by the terms of the Eleventh Amendment" (p. 713). The most prominent dissenting view, both in these closely divided decisions and in the scholarly commentary, is that the Eleventh Amendment was intended only to reverse the holding in Chisolm v. Georgia, which permitted access to federal courts under Article III's grant of diversity jurisdiction for suits between "a State and Citizens of another state." Under this view, the Eleventh Amendment would not prevent federal question suits against states.
Because restrictions on federal judicial power may threaten important national goals, the Eleventh Amendment and state sovereign immunity are subject to a number of significant exceptions. State immunity from suit does not extend to political subdivisions of states, such as counties and towns. Federal courts are open to suits against states brought by the United States or by other American states representing their own interests. States may waive the amendment and consent to suit—this despite the general rule that parties may not confer jurisdiction in court—so long as their waiver of immunity is explicit. Furthermore, Congress may abrogate sovereign immunity by virtue of its section 5 enforcement powers under the Fourteenth Amendment. In the landmark case of Seminole Tribe of Florida v. Florida (1996), however, the Court held that Congress may not abrogate sovereign immunity under any other source of power (or, read more narrowly, under any source of power predating the Eleventh Amendment), overruling Pennsylvania v. Union Gas Co. (1989), which had permitted Congress to abrogate pursuant to the Commerce Clause. Congressional power to abrogate under section 5 of the Fourteenth Amendment is itself subject to significant judicial oversight. Expanding on its holding in City of Boerne v. Flores (1997) that laws passed pursuant to the section 5 power must be narrowly tailored to addressing constitutional violations, the Court found that a series of laws—involving patent infringement, age discrimination, and discrimination against the disabled—exceeded the section 5 power of Congress and therefore could not be the basis for suits against state governmental entities.
A final important restriction on state immunity is the doctrine of Ex parte Young (1908), which permits suit against state officers for unconstitutional acts, though this is in effect a suit against the state itself. However, suits against state officers in which the remedy for past wrongs would be paid for out of the state treasury are still barred under the amendment (Edelman v. Jordan, 1974), effectively limiting the Ex Parte Young action to injunctive suits.
The line of 5 to 4 decisions, beginning with Seminole Tribe in 1996, evidences an entrenched split between a majority that views sovereign immunity less as a protection for state treasuries than as a broad principle concerned with safeguarding the dignity of the states, and a minority that would construe the Eleventh Amendment far more narrowly.
See also Constitutional Amendments; Judicial Power and Jurisdiction.
Bibliography
- John V. Orth, The Judicial Power of the United States: The Eleventh Amendment in American History (1987). Federalism after Alden, Symposium, Rutgers Law Review 31 (2000): 631 [to 831].
- State Sovereign Immunity and the Eleventh Amendment, Symposium, Notre Dame Law Review 75 (2000): 817–1182
— John V. Orth
West's Encyclopedia of American Law
This entry contains information applicable to United States law only.
Eleventh Amendment
The Eleventh Amendment to the U.S. Constitution reads:
The Eleventh Amendment is rooted in the concept of federalism, under which the U.S. Constitution carefully enumerates the powers of Congress to govern at the national level, while safeguarding the power of states to govern locally. By limiting the power of federal courts to hear lawsuits brought against state governments, the Eleventh Amendment attempts to strike a balance between the sovereignty shared by the state and federal governments.
"The object and purpose of the Eleventh Amendment [is] to prevent the indignity of subjecting a state to the coercive process of [federal] judicial tribunals at the instance of private parties" (Ex parte Ayers, 123 U.S. 443, 8 S. Ct. 164, 31 L. Ed. 216 [1887]). The Eleventh Amendment highlights an understanding that the state governments, while ratifying the federal Constitution to form a union, "maintain certain attributes of sovereignty, including sovereign immunity" from being sued in federal court (Hans v. Louisiana, 134 U.S. 1, 10 S. Ct. 504, 33 L. Ed. 842 [1890]).
However, the Eleventh Amendment does not bar all lawsuits brought against state governments in federal court. Four major exceptions have been recognized by the Supreme Court. First, the Eleventh Amendment does not apply to lawsuits brought against a state's political subdivisions. Accordingly, counties, cities, and municipalities may be sued in federal court without regard to the strictures of the Eleventh Amendment.
The second exception to the Eleventh Amendment permits a state government to waive its constitutional protections by consenting to a lawsuit against it in federal court. For example, Minnesota could waive its Eleventh Amendment protections by agreeing to allow a federal court to hear a lawsuit brought against it.
The third exception permits Congress to abrogate a state's immunity from being sued in federal court by enacting legislation pursuant to its enforcement powers under the Equal Protection and Due Process Clauses of the Fourteenth Amendment (Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S. Ct. 2666, 49 L. Ed. 2d 614 [1976]). Congressional intent to abrogate a state's Eleventh Amendment immunity must be "unmistakably clear" (Atascadero State Hospital v. Scanlon, 473 U.S. 234, 105 S. Ct. 3142, 87 L. Ed. 2d 171 [1985]). Evidence of this intent may be found in the legislative floor debates that precede a congressional enactment (Quern v. Jordan, 440 U.S. 332, 99 S. Ct. 1139, 59 L. Ed. 2d 358 [1979]).
In 1996, the Supreme Court ruled that Congress may not abrogate a state's sovereign immunity from being sued in federal court pursuant to its regulatory powers under the Indian Commerce Clause contained in Article I, Section 8, of the Constitution (Seminole Tribe v. Florida, ___U.S.___, 116 S. Ct. 1114, 134 L. Ed. 2d 252 [1996]). Seminole overruled Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S. Ct. 2273, 105 L. Ed. 2d 1 (1989), which held that Congress may abrogate a state's immunity under the Interstate Commerce Clause, which adjoins the Indian Commerce Clause in Article I.
Although Seminole involved the Indian Gaming Regulatory Act (18 U.S.C.A. §§ 1166 to 1168, 25 U.S.C.A. § 2701 et seq.), which governs certain gambling activities of Native American tribes, the Court's decision calls into question the continuing power of federal courts to hear lawsuits against state governments seeking to enforce environmental statutes, bankruptcy laws, intellectual property legislation, and scores of other business regulations that have been enacted pursuant to congressional power under the Commerce Clause.
The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (42 U.S.C.A. § 9601 et seq.) is one federal law passed pursuant to congressional power under the Commerce Clause. This act makes states liable in federal court for costs incurred from cleaning up hazardous waste sites. (See Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S. Ct. 2273, 105 L. Ed. 2d 1 [1989]). The Court's decision in Seminole could affect thousands of lawsuits filed each year under this statute alone.
The final exception to the Eleventh Amendment permits citizens of any state to seek an injunction against state officials in federal court to "end a continuing violation of federal law" (Green v. Mansour, 474 U.S. 64, 106 S. Ct. 423, 88 L. Ed. 2d 371 [1985]; Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 [1908]). For example, residents of Ohio are permitted to bring a lawsuit in federal court seeking to compel the state's governor to construct housing in compliance with the Americans with Disabilities Act (42 U.S.C.A. § 12101 et seq.), a federal statute designed to protect the rights of handicapped U.S. citizens (see Martin v. Voinovich, 840 F. Supp. 1175 S.D. Ohio [1993]). However, such a lawsuit would be barred by the Eleventh Amendment if the remedy sought were not injunctive relief but money damages to be paid out of the state's treasury.
The Supreme Court has distinguished permissible lawsuits seeking prospective equitable relief, such as the injunctive remedy sought by the Ohio residents, from impermissible lawsuits seeking money damages for past actions: "[F]ederal court[s] may award an injunction that governs [a state] official's future conduct, but not one that awards retroactive monetary relief" (Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S. Ct. 900, 79 L. Ed. 2d 67 [1984]). The distinction between prospective injunctive relief and retroactive money damages can be traced back to the Framers' original understanding of the Eleventh Amendment.
Ratified in 1795, the Eleventh Amendment was drafted to overrule the Supreme Court's decision in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 1 L. Ed. 440 (1793), which held that a citizen of one state may sue the government of another state in the U.S. Supreme Court. Chisholm created a maelstrom across the United States. At the close of the American Revolution, each state was greatly indebted to foreign creditors for financial and other assistance received during the war. Congressional representatives feared that Chisholm would permit these foreign creditors to ask federal courts to force the fiscally troubled state treasuries to bear the burden of these debts.
Representatives also expressed concern that British Loyalists who had been dispossessed of their homes and personal belongings by the colonies during the Revolution could now sue the state governments to recover their property. John Jay, the chief justice of the Supreme Court, exacerbated these concerns by advocating the full restoration of Loyalist property. A defiant Georgia House of Representatives passed a resolution providing that any person who attempted to collect a Revolutionary War debt or recover property pursuant to Chisholm "shall be declared guilty of a felony and … suffer death without benefit of clergy, by being hanged."
Two days after Chisholm was handed down by the Supreme Court, an anonymous senator submitted to Congress a proposal that later became the Eleventh Amendment to the Constitution. From its inception, the Eleventh Amendment has fueled heated discussions among judges and lawyers about the appropriate manner in which it should be interpreted.
Federal courts derive their power to hear lawsuits from Article III of the Constitution. Section 2 of Article III specifies particular "Cases" and "Controversies" that can be decided by the federal judiciary. These cases and controversies fall into two general categories: those identified by their subject matter and those identified by their parties.
Federal courts have jurisdiction to hear cases whose subject matter "aris[es] under" the U.S. Constitution, an executive order promulgated by the president, a federal law enacted by Congress, or a treaty between the United States and another country (U.S. Const. art III, § 2). Such cases are said to present federal questions because they involve legal issues based on one of these species of federal law. For example, cases involving free speech claims under the First Amendment or discrimination claims under the Civil Rights Act of 1871 (42 U.S.C.A. § 1983) present federal questions, and confer upon federal courts the subject matter jurisdiction to resolve them.
Federal courts also have jurisdiction to hear cases based on the parties involved in the lawsuit. Under what is sometimes called party-based jurisdiction, federal judges have the power to decide cases affecting "Ambassadors" and "other public Ministers and Consuls." The federal judiciary may also entertain disputes "between two or more States," "between Citizens of different states," or "between a State and Citizens of another State" (U.S. Const. art. III, § 2). The italicized clause contemplates federal jurisdiction extending to cases between state governments and citizens of other states, and provided the basis for the Supreme Court's decision in Chisholm.
Although the Eleventh Amendment was clearly adopted in response to the Supreme Court's interpretation of Article III in Chisholm, it has not been applied in a clear or uniform manner by the courts. Four alternative theories of interpretation have been advanced by lawyers and judges.
The first theory of interpretation, espoused by Justice Thurgood Marshall, insists that the Eleventh Amendment protects states from being sued in federal court without their consent. It "had been widely understood prior to ratification of the Constitution," Marshall said, "that the provision in Art[icle] III, Section 2 … would not provide a mechanism for making states unwilling defendants in federal court" (Department of Public Health & Welfare v. Department of Public Health & Welfare, 411 U.S. 279, 93 S. Ct. 1614, 36 L. Ed. 2d 251 [1973]). Marshall believed that the Eleventh Amendment did not change this original understanding of federal jurisdiction. For Marshall, then, the meaning of the Eleventh Amendment was simple: A state could not be sued in federal court under any circumstances in which the state did not consent.
According to the second theory of interpretation, the Eleventh Amendment applies only to party-based jurisdiction and not to subject matter jurisdiction. This theory, advanced by Justice William J. Brennan, Jr., permits federal courts to hear lawsuits against states that present federal questions, such as those "arising under" the Constitution, but bars federal judges from deciding cases in which the plaintiff lives in a different state than the one being sued. Adherents of this theory point out that Chisholm, the Supreme Court decision that was overruled by the Eleventh Amendment, involved party-based jurisdiction and was not subject matter jurisdiction.
The third theory of interpretation relies on the text of the Eleventh Amendment itself. Again, the language of the Eleventh Amendment suggests that federal courts may hear only two types of lawsuits against state governments: those brought by citizens of another state and those brought by citizens of another country. Under this theory, federal courts can entertain lawsuits seeking to vindicate a federal constitutional or statutory right only if the plaintiff lives in a different state from the one he or she is suing, or is the citizen of a foreign country. If the plaintiff resides in the state he or she is suing, only a state court may hear the case.
The fourth theory of interpretation also focuses on the language of the Eleventh Amendment, but in a different way. This theory stresses that the Eleventh Amendment explicitly limits the "Judicial power of the United States" but makes no mention of federal legislative power (U.S. Const. art. III, § 2). In this light, the Eleventh Amendment explicitly restricts the power of federal judges to hear cases against state governments, and implicitly permits Congress to abrogate a state's sovereign immunity from being sued in federal court. This theory permits citizens of any state, including the state being sued, to file a lawsuit against a state government in federal court to enforce a legal right delineated by congressional legislation. Many advocates of this theory argue that Congress's authority to enact such legislation derives from any of its constitutionally enumerated powers, and not just its powers under the Fourteenth Amendment as the Supreme Court concluded in Seminole.
The diversity of these theories demonstrates the complexity of Eleventh Amendment jurisprudence, as does the Supreme Court's decision in Seminole, which overruled a case less than eight years old. Yet, most adherents to these various theories would agree on one point: There is an advantage, however slight, to filing a lawsuit in federal court rather than state court. A federal court is more likely to render an impartial verdict than is a judge or juror who resides in the state being sued. For this reason, plaintiffs, and the lawyers representing them, will continue to sue state governments in federal court and argue vociferously for the most narrow interpretation of the Eleventh Amendment's sovereign immunity.
See: Legislative History; ambassadors and consuls.
Eleventh Amendment
The Eleventh Amendment to the U.S. Constitution reads:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.The text of the Eleventh Amendment limits the power of federal courts to hear lawsuits against state governments brought by the citizens of another state or the citizens of a foreign country. The Supreme Court has also interpreted the Eleventh Amendment to bar federal courts from hearing lawsuits instituted by citizens of the state being sued, and lawsuits initiated by the governments of foreign countries. For example, the state of New York could invoke the Eleventh Amendment to protect itself from being sued in federal court by its own residents, residents of another state, residents of a foreign country, or the government of a foreign country.
The Eleventh Amendment is rooted in the concept of federalism, under which the U.S. Constitution carefully enumerates the powers of Congress to govern at the national level, while safeguarding the power of states to govern locally. By limiting the power of federal courts to hear lawsuits brought against state governments, the Eleventh Amendment attempts to strike a balance between the sovereignty shared by the state and federal governments.
"The object and purpose of the Eleventh Amendment [is] to prevent the indignity of subjecting a state to the coercive process of [federal] judicial tribunals at the instance of private parties" (Ex parte Ayers, 123 U.S. 443, 8 S. Ct. 164, 31 L. Ed. 216 [1887]). The Eleventh Amendment highlights an understanding that the state governments, while ratifying the federal Constitution to form a union, "maintain certain attributes of sovereignty, including sovereign immunity" from being sued in federal court (Hans v. Louisiana, 134 U.S. 1, 10 S. Ct. 504, 33 L. Ed. 842 [1890]).
However, the Eleventh Amendment does not bar all lawsuits brought against state governments in federal court. Four major exceptions have been recognized by the Supreme Court. First, the Eleventh Amendment does not apply to lawsuits brought against a state's political subdivisions. Accordingly, counties, cities, and municipalities may be sued in federal court without regard to the strictures of the Eleventh Amendment.
The second exception to the Eleventh Amendment permits a state government to waive its constitutional protections by consenting to a lawsuit against it in federal court. For example, Minnesota could waive its Eleventh Amendment protections by agreeing to allow a federal court to hear a lawsuit brought against it.
The third exception permits Congress to abrogate a state's immunity from being sued in federal court by enacting legislation pursuant to its enforcement powers under the Equal Protection and Due Process Clauses of the Fourteenth Amendment (Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S. Ct. 2666, 49 L. Ed. 2d 614 [1976]). Congressional intent to abrogate a state's Eleventh Amendment immunity must be "unmistakably clear" (Atascadero State Hospital v. Scanlon, 473 U.S. 234, 105 S. Ct. 3142, 87 L. Ed. 2d 171 [1985]). Evidence of this intent may be found in the legislative floor debates that precede a congressional enactment (Quern v. Jordan, 440 U.S. 332, 99 S. Ct. 1139, 59 L. Ed. 2d 358 [1979]).
In 1996, the Supreme Court ruled that Congress may not abrogate a state's sovereign immunity from being sued in federal court pursuant to its regulatory powers under the Indian Commerce Clause contained in Article I, Section 8, of the Constitution (Seminole Tribe v. Florida, ___U.S.___, 116 S. Ct. 1114, 134 L. Ed. 2d 252 [1996]). Seminole overruled Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S. Ct. 2273, 105 L. Ed. 2d 1 (1989), which held that Congress may abrogate a state's immunity under the Interstate Commerce Clause, which adjoins the Indian Commerce Clause in Article I.
Although Seminole involved the Indian Gaming Regulatory Act (18 U.S.C.A. §§ 1166 to 1168, 25 U.S.C.A. § 2701 et seq.), which governs certain gambling activities of Native American tribes, the Court's decision calls into question the continuing power of federal courts to hear lawsuits against state governments seeking to enforce environmental statutes, bankruptcy laws, intellectual property legislation, and scores of other business regulations that have been enacted pursuant to congressional power under the Commerce Clause.
The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (42 U.S.C.A. § 9601 et seq.) is one federal law passed pursuant to congressional power under the Commerce Clause. This act makes states liable in federal court for costs incurred from cleaning up hazardous waste sites. (See Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S. Ct. 2273, 105 L. Ed. 2d 1 [1989]). The Court's decision in Seminole could affect thousands of lawsuits filed each year under this statute alone.
The final exception to the Eleventh Amendment permits citizens of any state to seek an injunction against state officials in federal court to "end a continuing violation of federal law" (Green v. Mansour, 474 U.S. 64, 106 S. Ct. 423, 88 L. Ed. 2d 371 [1985]; Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 [1908]). For example, residents of Ohio are permitted to bring a lawsuit in federal court seeking to compel the state's governor to construct housing in compliance with the Americans with Disabilities Act (42 U.S.C.A. § 12101 et seq.), a federal statute designed to protect the rights of handicapped U.S. citizens (see Martin v. Voinovich, 840 F. Supp. 1175 S.D. Ohio [1993]). However, such a lawsuit would be barred by the Eleventh Amendment if the remedy sought were not injunctive relief but money damages to be paid out of the state's treasury.
The Supreme Court has distinguished permissible lawsuits seeking prospective equitable relief, such as the injunctive remedy sought by the Ohio residents, from impermissible lawsuits seeking money damages for past actions: "[F]ederal court[s] may award an injunction that governs [a state] official's future conduct, but not one that awards retroactive monetary relief" (Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S. Ct. 900, 79 L. Ed. 2d 67 [1984]). The distinction between prospective injunctive relief and retroactive money damages can be traced back to the Framers' original understanding of the Eleventh Amendment.
Ratified in 1795, the Eleventh Amendment was drafted to overrule the Supreme Court's decision in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 1 L. Ed. 440 (1793), which held that a citizen of one state may sue the government of another state in the U.S. Supreme Court. Chisholm created a maelstrom across the United States. At the close of the American Revolution, each state was greatly indebted to foreign creditors for financial and other assistance received during the war. Congressional representatives feared that Chisholm would permit these foreign creditors to ask federal courts to force the fiscally troubled state treasuries to bear the burden of these debts.
Representatives also expressed concern that British Loyalists who had been dispossessed of their homes and personal belongings by the colonies during the Revolution could now sue the state governments to recover their property. John Jay, the chief justice of the Supreme Court, exacerbated these concerns by advocating the full restoration of Loyalist property. A defiant Georgia House of Representatives passed a resolution providing that any person who attempted to collect a Revolutionary War debt or recover property pursuant to Chisholm "shall be declared guilty of a felony and … suffer death without benefit of clergy, by being hanged."
Two days after Chisholm was handed down by the Supreme Court, an anonymous senator submitted to Congress a proposal that later became the Eleventh Amendment to the Constitution. From its inception, the Eleventh Amendment has fueled heated discussions among judges and lawyers about the appropriate manner in which it should be interpreted.
Federal courts derive their power to hear lawsuits from Article III of the Constitution. Section 2 of Article III specifies particular "Cases" and "Controversies" that can be decided by the federal judiciary. These cases and controversies fall into two general categories: those identified by their subject matter and those identified by their parties.
Federal courts have jurisdiction to hear cases whose subject matter "aris[es] under" the U.S. Constitution, an executive order promulgated by the president, a federal law enacted by Congress, or a treaty between the United States and another country (U.S. Const. art III, § 2). Such cases are said to present federal questions because they involve legal issues based on one of these species of federal law. For example, cases involving free speech claims under the First Amendment or discrimination claims under the Civil Rights Act of 1871 (42 U.S.C.A. § 1983) present federal questions, and confer upon federal courts the subject matter jurisdiction to resolve them.
Federal courts also have jurisdiction to hear cases based on the parties involved in the lawsuit. Under what is sometimes called party-based jurisdiction, federal judges have the power to decide cases affecting "Ambassadors" and "other public Ministers and Consuls." The federal judiciary may also entertain disputes "between two or more States," "between Citizens of different states," or "between a State and Citizens of another State" (U.S. Const. art. III, § 2). The italicized clause contemplates federal jurisdiction extending to cases between state governments and citizens of other states, and provided the basis for the Supreme Court's decision in Chisholm.
Although the Eleventh Amendment was clearly adopted in response to the Supreme Court's interpretation of Article III in Chisholm, it has not been applied in a clear or uniform manner by the courts. Four alternative theories of interpretation have been advanced by lawyers and judges.
The first theory of interpretation, espoused by Justice Thurgood Marshall, insists that the Eleventh Amendment protects states from being sued in federal court without their consent. It "had been widely understood prior to ratification of the Constitution," Marshall said, "that the provision in Art[icle] III, Section 2 … would not provide a mechanism for making states unwilling defendants in federal court" (Department of Public Health & Welfare v. Department of Public Health & Welfare, 411 U.S. 279, 93 S. Ct. 1614, 36 L. Ed. 2d 251 [1973]). Marshall believed that the Eleventh Amendment did not change this original understanding of federal jurisdiction. For Marshall, then, the meaning of the Eleventh Amendment was simple: A state could not be sued in federal court under any circumstances in which the state did not consent.
According to the second theory of interpretation, the Eleventh Amendment applies only to party-based jurisdiction and not to subject matter jurisdiction. This theory, advanced by Justice William J. Brennan, Jr., permits federal courts to hear lawsuits against states that present federal questions, such as those "arising under" the Constitution, but bars federal judges from deciding cases in which the plaintiff lives in a different state than the one being sued. Adherents of this theory point out that Chisholm, the Supreme Court decision that was overruled by the Eleventh Amendment, involved party-based jurisdiction and was not subject matter jurisdiction.
The third theory of interpretation relies on the text of the Eleventh Amendment itself. Again, the language of the Eleventh Amendment suggests that federal courts may hear only two types of lawsuits against state governments: those brought by citizens of another state and those brought by citizens of another country. Under this theory, federal courts can entertain lawsuits seeking to vindicate a federal constitutional or statutory right only if the plaintiff lives in a different state from the one he or she is suing, or is the citizen of a foreign country. If the plaintiff resides in the state he or she is suing, only a state court may hear the case.
The fourth theory of interpretation also focuses on the language of the Eleventh Amendment, but in a different way. This theory stresses that the Eleventh Amendment explicitly limits the "Judicial power of the United States" but makes no mention of federal legislative power (U.S. Const. art. III, § 2). In this light, the Eleventh Amendment explicitly restricts the power of federal judges to hear cases against state governments, and implicitly permits Congress to abrogate a state's sovereign immunity from being sued in federal court. This theory permits citizens of any state, including the state being sued, to file a lawsuit against a state government in federal court to enforce a legal right delineated by congressional legislation. Many advocates of this theory argue that Congress's authority to enact such legislation derives from any of its constitutionally enumerated powers, and not just its powers under the Fourteenth Amendment as the Supreme Court concluded in Seminole.
The diversity of these theories demonstrates the complexity of Eleventh Amendment jurisprudence, as does the Supreme Court's decision in Seminole, which overruled a case less than eight years old. Yet, most adherents to these various theories would agree on one point: There is an advantage, however slight, to filing a lawsuit in federal court rather than state court. A federal court is more likely to render an impartial verdict than is a judge or juror who resides in the state being sued. For this reason, plaintiffs, and the lawyers representing them, will continue to sue state governments in federal court and argue vociferously for the most narrow interpretation of the Eleventh Amendment's sovereign immunity.
See: Legislative History; ambassadors and consuls.
Historical Documents of the United States
Amendment XI to the U.S. Constitution Passed by Congress March 4, 1794. Ratified February 7, 1795.
Note:
Article III, section 2, of the Constitution was modified by amendment 11.
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
More:
The Constitution
Bill of Rights (Amendments 1-10)
The Other Amendments (11-27)
Note:
Article III, section 2, of the Constitution was modified by amendment 11.
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
More:
The Constitution
Bill of Rights (Amendments 1-10)
The Other Amendments (11-27)
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Text
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
Summary
See also: State sovereign immunity
The Eleventh Amendment, the first amendment to the Constitution after the Bill of Rights, was adopted following the Supreme Court's ruling in Chisholm v. Georgia, 2 U.S. 419 (1793). In Chisholm, the Court ruled that federal courts had the authority to hear cases in law and equity brought by private citizens against states and that states did not enjoy sovereign immunity from suits made by citizens of other states. Thus, the amendment clarified Article III, Section 2 of the Constitution, which gave diversity jurisdiction to the judiciary to hear cases "between a state and citizens of another state."The amendment's text does not mention suits brought against a state by its own citizens. However, in Hans v. Louisiana, 134 U.S. 1 (1890), the Supreme Court ruled that the amendment reflects a broader principle of sovereign immunity. As Justice Anthony Kennedy, writing for a five Justice majority, stated in Alden v. Maine, 527 U.S. 706 (1999):
Writing for a four justice dissent in Alden, Justice David Souter said the states surrendered their sovereign immunity when they ratified the Constitution. The dissenting justices read the amendment's text as reflecting a narrow form of sovereign immunity that limited only the diversity jurisdiction of the federal courts. They concluded that the states are not insulated from suits by individuals by either the Eleventh Amendment in particular or the Constitution in general.[2][S]overeign immunity derives not from the Eleventh Amendment but from the structure of the original Constitution itself....Nor can we conclude that the specific Article I powers delegated to Congress necessarily include, by virtue of the Necessary and Proper Clause or otherwise, the incidental authority to subject the States to private suits as a means of achieving objectives otherwise within the scope of the enumerated powers.[1]
Although the Eleventh Amendment immunizes states from suit for money damages or equitable relief without their consent, in Ex parte Young, 209 U.S. 123 (1908), the Supreme Court ruled that federal courts may enjoin state officials from violating federal law. In Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), the Supreme Court ruled that Congress may abrogate state immunity from suit under the enforcement clause of the Fourteenth Amendment. In Central Virginia Community College v. Katz 546 U.S. 356 (2006), the Court ruled the Congress could do the same regarding bankruptcy cases by way of Article I, Section 8, Clause 4 of the Constitution. Also, in Lapides v. Board of Regents of Univ. System of Ga., 535 U.S. 613 (2002), the Supreme Court ruled that a state voluntarily waives the Eleventh Amendment when it invokes a federal court's removal jurisdiction.
Proposal and ratification
The Eleventh Amendment was proposed by the Congress on March 4, 1794 and was ratified by the following states:[3]- New York (March 27, 1794)
- Rhode Island (March 31, 1794)
- Connecticut (May 8, 1794)
- New Hampshire (June 16, 1794)
- Massachusetts (June 26, 1794)
- Vermont (November 9, 1794)
- Virginia (November 18, 1794)
- Georgia (November 29, 1794)
- Kentucky (December 7, 1794)
- Maryland (December 26, 1794)
- Delaware (January 23, 1795)
- North Carolina (February 7, 1795)
The amendment was subsequently ratified by the following state:
- South Carolina (December 4, 1797).
- New Jersey
- Pennsylvania
References
- ^ Opinion of the Court in Alden v. Maine
- ^ Dissenting opinion in Alden v. Maine
- ^ Mount, Steve (January 2007). "Ratification of Constitutional Amendments". http://www.usconstitution.net/constamrat.html. Retrieved February 24, 2007.
Further reading
- Clark, Bradford R. (2010). "The Eleventh Amendment and the Nature of the Union". Harvard Law Review 123 (8): 1817–1918. http://www.harvardlawreview.org/media/pdf/vol123_clark.pdf.
External links
- National Archives: Eleventh Amendment
- CRS Annotated Constitution: Eleventh Amendment
- Leaving the Chisholm Trail
This entry is from Wikipedia, the leading user-contributed encyclopedia. It may not have been reviewed by professional editors (see full disclaimer)
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Subject: 42 U.S.C. 1983 allows You to sue for Violation of Your Rights
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42 U.S.C. 1983 allows You to sue for Violation of Your Rights
I came across this information online while doing some research.There is a lot of excellent information about 42 U.S.C. 1983.
I copied it from http://www.constitution.org/brief/forsythe_42-1983.htm
A GUIDE TO CIVIL RIGHTS LIABILITY UNDER 42 U.S.C. § 1983: AN OVERVIEW OF SUPREME COURT AND ELEVENTH CIRCUIT PRECEDENT
IAN D. FORSYTHE
Hilyard, Bogan, Palmer & Lockeby, P.A.
105 East Robinson Street, Suite 201
Orlando, Florida 32801
Tel. (407) 425-4251
This e-mail address is being protected from spambots. You need JavaScript enabled to view it
I. INTRODUCTION AND HISTORY
42 U.S.C. § 1983, commonly referred to as "section 1983" provides:
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.
42 U.S.C. § 1983 (emphasis added).
Section 1983 was enacted on April 20, 1871 as part of the Civil Rights Act of 1871, and is also known as the "Ku Klux Klan Act" because one of its primary purposes was to provide a civil remedy against the abuses that were being committed in the southern states, especially by the Ku Klux Klan. While the existing law protected all citizens in theory, its protection in practice was unavailable to some because those persons charged with the enforcement of the laws were unable or unwilling to do so.[1] The Act was intended to provide a private remedy for such violations of federal law, and has subsequently been interpreted to create a species of tort liability.[2]
The number of cases that have been brought under section 1983 has dramatically increased since 1961 when the Supreme Court decided Monroe v. Pape.[3] In Monroe, the Supreme Court held that a police officer was acting "under color of state law" even though his actions violated state law.[4] This was the first case in which the Supreme Court allowed liability to attach where a government official acted outside the scope of the authority granted to him by state law. Since Monroe v. Pape was decided, an extensive body of law has developed to govern section 1983 claims. This article is intended to provide an overview of that extensive body of law, and will include seminal precedent from the United States Supreme Court and the Eleventh Circuit Court of Appeals--a comprehensive study of all law related to section 1983 is beyond the scope of this article. 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.
42 U.S.C. § 1983 (emphasis added).
Section 1983 was enacted on April 20, 1871 as part of the Civil Rights Act of 1871, and is also known as the "Ku Klux Klan Act" because one of its primary purposes was to provide a civil remedy against the abuses that were being committed in the southern states, especially by the Ku Klux Klan. While the existing law protected all citizens in theory, its protection in practice was unavailable to some because those persons charged with the enforcement of the laws were unable or unwilling to do so.[1] The Act was intended to provide a private remedy for such violations of federal law, and has subsequently been interpreted to create a species of tort liability.[2]
II. ELEMENTS OF A SECTION 1983 CLAIM
(i) "Every person . . ."
Only "persons" under the statute are subject to liability.[5] A state is not a person subject to suit under section 1983,[6] but a state officer can be sued in his official capacity for prospective or injunctive relief[7] despite the fact that an suit against a government official in his official capacity represents nothing more than a suit against the government entity itself![8] Despite this logical inconsistency, the current state of the law is that a state may not be sued for damages, but may be sued for declaratory or injunctive relief. Municipalities and local governments are persons subject to suit for damages and prospective relief,[9] but the United States Government is not.[10] Individual employees of federal,[11] state[12] and local[13] government may be sued in their individual capacities[14] for damages, declaratory or injunctive relief.
While the determination of who is a "person" is a matter of federal statutory interpretation, the matter of who has the capacity to be sued is determined by the law of the forum state.[15] Likewise, the law of the forum is to be applied in actions under section 1983 where the law of section 1983 provides no guidance.[16]
(i) "Every person . . ."
Only "persons" under the statute are subject to liability.[5] A state is not a person subject to suit under section 1983,[6] but a state officer can be sued in his official capacity for prospective or injunctive relief[7] despite the fact that an suit against a government official in his official capacity represents nothing more than a suit against the government entity itself![8] Despite this logical inconsistency, the current state of the law is that a state may not be sued for damages, but may be sued for declaratory or injunctive relief. Municipalities and local governments are persons subject to suit for damages and prospective relief,[9] but the United States Government is not.[10] Individual employees of federal,[11] state[12] and local[13] government may be sued in their individual capacities[14] for damages, declaratory or injunctive relief.
While the determination of who is a "person" is a matter of federal statutory interpretation, the matter of who has the capacity to be sued is determined by the law of the forum state.[15] Likewise, the law of the forum is to be applied in actions under section 1983 where the law of section 1983 provides no guidance.[16]
(ii) ". . . who under color of [state law][17] . . ."
The traditional definition of acting under the color of state law requires that the defendant have exercised power "possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law,"[18] and such actions may result in liability even if the defendant abuses the position given to him by the state.[19] A private actor may also act under color of state law under certain circumstances.[20] For example, it has been held that a physician who contracts with the state to provide medical care to inmates acts under the color of state law.[21] For all practical purposes, the "color of state law" requirement is identical to the "state action" prerequisite to constitutional liability.[22]
(iii) ". . . subjects or causes to be subjected . . ."
Section 1983 does not impose a state of mind requirement independent of the underlying basis for liability,[23] but there must be a causal connection between the defendant's actions and the harm that results.[24] In order to hold a local government liable under section 1983, the Supreme Court has interpreted this causation element to require that the harm be the result of action on the part of the government entity that implemented or executed a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers, or the result of the entity's custom.[25] Further, the entity's policy or custom must have been the "moving force" behind the alleged deprivation.[26] This "custom or policy" requirement is a dramatic departure from the rule of respondeat superior that prevails in many common law actions.[27]
The traditional definition of acting under the color of state law requires that the defendant have exercised power "possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law,"[18] and such actions may result in liability even if the defendant abuses the position given to him by the state.[19] A private actor may also act under color of state law under certain circumstances.[20] For example, it has been held that a physician who contracts with the state to provide medical care to inmates acts under the color of state law.[21] For all practical purposes, the "color of state law" requirement is identical to the "state action" prerequisite to constitutional liability.[22]
(iii) ". . . subjects or causes to be subjected . . ."
Section 1983 does not impose a state of mind requirement independent of the underlying basis for liability,[23] but there must be a causal connection between the defendant's actions and the harm that results.[24] In order to hold a local government liable under section 1983, the Supreme Court has interpreted this causation element to require that the harm be the result of action on the part of the government entity that implemented or executed a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers, or the result of the entity's custom.[25] Further, the entity's policy or custom must have been the "moving force" behind the alleged deprivation.[26] This "custom or policy" requirement is a dramatic departure from the rule of respondeat superior that prevails in many common law actions.[27]
A local government is said to have an unconstitutional policy when it fails to train its employees, and the failure to train amounts to deliberate indifference to an obvious need for such training, and the failure train will likely result in the employee making a wrong decision.[28] An unconstitutional policy may also exist if an isolated action of a government employee is dictated by a "final policymaker,"[29] or if the authorized policymaker approves a subordinate's decision and the basis for it.[30] However, a supervisor can only be liable in his individual capacity if he directly participates in causing the harm--relying upon respondeat superior is insufficient.[31] The Supreme Court has rejected the notion that a plaintiff must meet a heightened pleading standard to state a claim against a municipality for an unconstitutional custom or policy.[32]
(iv) ". . . [any person to] the deprivation of rights . . ."
Section 1983 is not itself a source of substantive rights, it merely provides a method for the vindication of rights elsewhere conferred in the United States Constitution and Laws.[33] Therefore, a plaintiff may prevail only if he can demonstrate that he was deprived of rights secured by the United States Constitution or federal statutes. It is beyond the scope of this article to discuss all of the rights available under the United States Constitution, nevertheless, this article will provide an overview of perhaps the most utilized of all constitutional provisions--the Fourteenth Amendment Due Process Clause [hereinafter "the Due Process Clause"].[34]
(iv) ". . . [any person to] the deprivation of rights . . ."
Section 1983 is not itself a source of substantive rights, it merely provides a method for the vindication of rights elsewhere conferred in the United States Constitution and Laws.[33] Therefore, a plaintiff may prevail only if he can demonstrate that he was deprived of rights secured by the United States Constitution or federal statutes. It is beyond the scope of this article to discuss all of the rights available under the United States Constitution, nevertheless, this article will provide an overview of perhaps the most utilized of all constitutional provisions--the Fourteenth Amendment Due Process Clause [hereinafter "the Due Process Clause"].[34]
The Supreme Court has held that the Due Process Clause was not intended to supplant tort law, or to become "a font of tort law to be superimposed upon whatever systems may already be administered by the states."[35] Against this backdrop, to state a claim for a deprivation of Due Process, a plaintiff must show: (1) that he possessed a constitutionally protected property interest; and (2) that he was deprived of that interest without due process of law.[36] Due process property interests are created by "existing rules or understandings that stem from an independent source such as state law--rules or understanding that secure certain benefits and that support claims of entitlement to those benefits."[37] To have a property interest protected by the Due Process Clause, "a person must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it."[38] While the existence of a protected property interest is decided by reference to state law, the determination of whether due process was accorded is decided by reference to the Constitution.[39] Due process requires that "a deprivation of life, liberty, or property 'be preceded by notice and opportunity for hearing appropriate to the nature of the case,'"[40] but the state does not have to provide the same remedies available under section 1983 in order to satisfy due process.[41]
In construing the Due Process Clause, the United States Supreme Court has held that negligent acts by state actors do not effect a "deprivation" for the purposes of the Due Process Clause,[42] and the random and unauthorized conduct of a government actor, even if intentional, does not implicate the Due Process Clause if the state provides a meaningful post-deprivation remedy, such as, for example, a tort remedy in its own courts.[43] However, where the state can feasibly provide a pre-deprivation hearing, it must do so regardless of the post-deprivation remedies available,[44] and in the absence of a special relationship created or assumed by the state, a state's failure to protect an individual from violence or injury caused by private actors cannot state a violation of the Due Process Clause.[45]
In construing the Due Process Clause, the United States Supreme Court has held that negligent acts by state actors do not effect a "deprivation" for the purposes of the Due Process Clause,[42] and the random and unauthorized conduct of a government actor, even if intentional, does not implicate the Due Process Clause if the state provides a meaningful post-deprivation remedy, such as, for example, a tort remedy in its own courts.[43] However, where the state can feasibly provide a pre-deprivation hearing, it must do so regardless of the post-deprivation remedies available,[44] and in the absence of a special relationship created or assumed by the state, a state's failure to protect an individual from violence or injury caused by private actors cannot state a violation of the Due Process Clause.[45]
In addition to protection against deprivations of procedural due process, the Due Process Clause has two substantive components--the substantive due process simpliciter, and incorporated substantive due process. In order to state a claim for a violation of the substantive due process simpliciter, the plaintiff must demonstrate that the defendant engaged in conduct that was "arbitrary, or conscience shocking, in a constitutional sense."[46] This form of due process has very limited application,[47] but, in contrast to certain procedural due process claims,[48] the existence of adequate post-deprivation remedies does not bar a substantive due process claim.[49] With respect to incorporated substantive due process, the plaintiff may state a claim by proving a violation of one of the Bill of Rights. The Supreme Court has held that one of the substantive elements of the Due Process Clause protects those rights that are fundamental--rights that are implicit in the concept of ordered liberty, and has, over time, held that virtually all of the Bill of Rights protect such fundamental rights and has likewise held that they apply to the states through the "liberty" interest of the Due Process Clause.[50] However, the Court has held that when a specific provision within the Bill of Rights already provides protection, the more generalized notion of due process should not be used to define constitutional rights.[51]
In addition to providing a remedy for deprivations of constitutional rights, section 1983 also makes actionable violations of federal "Laws."[52] A violation of a federal statute is cognizable only when the violation trammels a right secured by federal law.[53] However, a statute is said to create a federal right only when "the provision in question is intended to benefit the putative plaintiff,"[54] unless it reflects merely a congressional preference for a certain kind of conduct rather than a binding obligation on the government unit,[55] or unless the putative plaintiff's interest is too vague and amorphous such that it is beyond the competence of the judiciary to enforce.[56]
(v) " . . . shall be liable . . . in an action at law, Suit in equity, or other proper proceeding for redress . . . "
In addition to providing a remedy for deprivations of constitutional rights, section 1983 also makes actionable violations of federal "Laws."[52] A violation of a federal statute is cognizable only when the violation trammels a right secured by federal law.[53] However, a statute is said to create a federal right only when "the provision in question is intended to benefit the putative plaintiff,"[54] unless it reflects merely a congressional preference for a certain kind of conduct rather than a binding obligation on the government unit,[55] or unless the putative plaintiff's interest is too vague and amorphous such that it is beyond the competence of the judiciary to enforce.[56]
(v) " . . . shall be liable . . . in an action at law, Suit in equity, or other proper proceeding for redress . . . "
There is no requirement that the plaintiff sue in federal court because state courts have concurrent jurisdiction,[57] and the usual rule is exhaustion of administrative and judicial state remedies is not a prerequisite to a section 1983 action.[58] Also, the existence of concurrent state remedies is not a bar to a section 1983 action.[59] With respect to the extent of damages available, the Supreme Court has noted that the basic purpose of a section 1983 damages award is to compensate the victims of official misconduct, and therefore held that there is no limit on actual damages if they can be proven.[60] But where they are not proved, only nominal damages of $1.00 may be awarded.[61] Punitive damages may also be awarded, but not against a municipality.[62] Injunctive relief is also permitted.[63]
III. DEFENSES AND IMMUNITIES
States and state agencies are entitled to Eleventh Amendment immunity in federal court,[64] but local governments have no immunity from damages flowing from their constitutional violations, and may not assert the good faith of its agents as a defense to liability.[65] Further, state law sovereign immunity and state law limitations on damages do not protect local governments from liability under section 1983,[66] and state laws requiring pre-suit notification prior to initiating an action against the state or its subdivisions similarly do not apply.[67] Therefore, local governments are left in the unique and unhappy situation of being subject to suit without the benefit of any form of immunity.
III. DEFENSES AND IMMUNITIES
States and state agencies are entitled to Eleventh Amendment immunity in federal court,[64] but local governments have no immunity from damages flowing from their constitutional violations, and may not assert the good faith of its agents as a defense to liability.[65] Further, state law sovereign immunity and state law limitations on damages do not protect local governments from liability under section 1983,[66] and state laws requiring pre-suit notification prior to initiating an action against the state or its subdivisions similarly do not apply.[67] Therefore, local governments are left in the unique and unhappy situation of being subject to suit without the benefit of any form of immunity.
In contrast to the distinct lack of immunity available to local governments, individual capacity defendants are protected by qualified immunity.[68] Qualified immunity is a powerful tool that shields individual officials who are performing discretionary activities unless their conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known."[69] A government official is entitled to qualified immunity unless his "act is so obviously wrong, in the light of preexisting law, that only a plainly incompetent officer or one who was knowingly violating the law would have done such a thing."[70] The qualified immunity inquiry is purely objective--the subjective intentions of the actor is irrelevant.[71] Qualified immunity is not only immunity from liability, but it is immunity from suit as well,[72] and shields individual capacity defendants even where a constitutional violation may have occurred. Likewise, a court should scrutinize a plaintiff's claim to determine if the plaintiff states a constitutional claim at all, prior to analyzing whether the defendant is entitled to qualified immunity.[73] The burden of proving that the law was clearly established cannot be carried by stating constitutional rights in general terms--a plaintiff within the eleventh circuit must cite to specific decisions of the United States Supreme Court, the Eleventh Court of Appeals, or the highest state court in which the case arose.[74]
Qualified immunity must be plead as an affirmative defense by the defendant official,[75] and becomes a matter for the court to decide, even if it requires a factual determination as to whether the defendant acted reasonably under the circumstances,[76] and the court should rule on the issue of qualified immunity at the earliest possible stage of litigation.[77] An individual defendant in federal court[78] may immediately appeal a denial of qualified immunity,[79] even if a prior appeal of the denial of qualified immunity was unsuccessful, and even if other claims remain for trial.[80] Until the issue of qualified immunity is decided, the defendant official may resist discovery,[81] and there is authority to the effect that he may stay the entire proceedings during an appeal of the denial of qualified immunity.[82] While the Supreme Court has rejected a heightened pleading standard for claims against local governments, a plaintiff must nevertheless plead facts with specificity to overcome an individual capacity defendant's qualified immunity.[83]
Private individuals who perform state functions,[84] and private corporations who contract with the government[85] may not be entitled to qualified immunity. State and local legislators[86] and judges[87] are protected by absolute immunity when sued in their individual capacity for damages or injunctive relief, while prosecutors[88] are entitled to absolute immunity when sued in their individual capacities for damages only. In any event, as discussed above, all individual capacity defendants are, at a minimum, entitled to qualified immunity.
The Reconstruction Civil Rights Acts did not contain a statute of limitations for section 1983 actions, and it is appropriate to adopt a local time limitation so long as it is not inconsistent with federal law.[89] The Supreme Court has held that section 1983 is best characterized as a tort action for the recovery of damages, and therefore held that the appropriate statute of limitations to be adopted is the state statute applicable to personal injury actions.[90]
IV. ATTORNEY'S FEES
Private individuals who perform state functions,[84] and private corporations who contract with the government[85] may not be entitled to qualified immunity. State and local legislators[86] and judges[87] are protected by absolute immunity when sued in their individual capacity for damages or injunctive relief, while prosecutors[88] are entitled to absolute immunity when sued in their individual capacities for damages only. In any event, as discussed above, all individual capacity defendants are, at a minimum, entitled to qualified immunity.
The Reconstruction Civil Rights Acts did not contain a statute of limitations for section 1983 actions, and it is appropriate to adopt a local time limitation so long as it is not inconsistent with federal law.[89] The Supreme Court has held that section 1983 is best characterized as a tort action for the recovery of damages, and therefore held that the appropriate statute of limitations to be adopted is the state statute applicable to personal injury actions.[90]
IV. ATTORNEY'S FEES
The Civil Rights Attorney's Fees Awards Act of 1976[91] provides that one who prevails[92] in a section 1983 action is entitled to recover attorneys' fees. There is little doubt that the addition of this attorney's fee provision fueled the growth in the number of section 1983 cases that have been filed because it has been held that prevailing plaintiffs are entitled to recover attorneys' fees unless special circumstances would render such an award unjust, while a prevailing defendant may be awarded attorneys' fees only "upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad fait
[1]. The catalyst for the enactment of the Act was the "campaign of violence and deception in the South, fomented by the Ku Klux Klan, which was denying citizens their civil and political rights." Wilson v. Garcia, 471 U.S. 261, 276 (1985). The following quote from Representative Lowe of the 42nd Congress is illustrative:
While murder is stalking abroad in disguise, while whippings and lynchings and banishing have been visited upon unoffending American citizens, the local administrators have been found inadequate or unwilling to apply the proper corrective. Combinations, darker than the night that hides them, conspiracies, wicked as the worst of felons could devise, have gone unwhipped of justice. Immunity is given to crime and the records of public tribunals are searched in vain for any evidence of effective redress.
Cong. Globe, 42d Cong. 1st Sess., 374 (1871)(remarks of Rep. Lowe)(quoted in Wilson, 471 U.S. at 276)).
While murder is stalking abroad in disguise, while whippings and lynchings and banishing have been visited upon unoffending American citizens, the local administrators have been found inadequate or unwilling to apply the proper corrective. Combinations, darker than the night that hides them, conspiracies, wicked as the worst of felons could devise, have gone unwhipped of justice. Immunity is given to crime and the records of public tribunals are searched in vain for any evidence of effective redress.
Cong. Globe, 42d Cong. 1st Sess., 374 (1871)(remarks of Rep. Lowe)(quoted in Wilson, 471 U.S. at 276)).
[2]. Memphis Community School Dist. v. Stachura, 477 U.S. 299, 305 (1986).
[3]. 365 U.S. 167 (1961).
[4]. See section II(ii), infra, for a discussion of the "under color of state law" requirement.
[5]. Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989).
[6]. Id.
[7]. Ex Parte Young, 209 U.S. 123 (1908).
[8]. Hafer v. Melo, 502 U.S. 25, 31 (1991); Kentucky v. Graham, 473 U.S. 159, 165 (1985).
[9]. Monell v. Dept. of Social Services of New York, 436 U.S. 658, 701 (1978).
[10]. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
[11]. Id.
[12]. Hafer v. Melo, 502 U.S. 25 (1991).
[13]. City of Oklahoma City v. Tuttle, 471 U.S. 808 (1985).
[14]. Government officials may be sued in their individual capacity. Such a suit does not represent a suit against the government entity for which he is associated. Kentucky v. Graham, 473 U.S. 159, 165 (1985). The failure to identify in which capacity a defendant is being sued is a critical pleading defect. Colvin v. McDougall, 62 F.3d 1316, 1318 (11th Cir. 1995).
[15]. Dean v. Barber, 951 F.2d 210 (11th Cir. 1992); Fed.R.Civ.P. 17(b). For example, Florida law provides that divisions of local governments, such as police departments, do not have the capacity to be sued. Florida City Police Department v. Corcoran, 661 So. 2d 409 (Fla. 3d DCA 1995).
[16]. Board of Regents v. Tomanio, 446 U.S. 478 (1980).
[17]. Section 1983's requirement that a person act "under color of any statute, ordinance, regulation, custom or usage of any State or Territory or District of Columbia" is commonly abbreviated as "under color of state law."
[18]. West v. Atkins, 487 U.S. 42, 49 (1988)(quoting United States v. Classic, 313 U.S. 299, 326 (1941)); Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982); Parratt v. Taylor, 451 U.S. 144, 152 (1970). However, in the only case in which the Supreme Court held that a government employee did not act under color of sate law, the Court held that a public defender does not act under color of state law while performing a lawyer's traditional function of representing criminal defendants. Polk County v. Dodson, 454 U.S. 312, 325 (1981).
[19]. Monroe v. Pape, 365 U.S. 167, 172 (1961).
[20]. Wyatt v. Cole, 504 U.S. 158, 162 (1992); Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (1982).
[21]. West v. Atkins, 487 U.S. 42 (1988); Ort v. Pinchback, 786 F.2d 1105 (11th Cir. 1986).
[22]. Lugar v. Edmondson Oil Co., 457 U.S. 922, 929 (1982).
[23]. Parratt v. Taylor, 451 U.S. 527 (1981), overruled in part, Daniels v. Williams, 474 U.S. 327 (1986).
[24]. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285-87 (1977).
[25]. Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 690-691, (1978). This "custom or policy" requirement has also been applied to private corporations who contract with the state to provide medical care to prisoners. Howell v. Evans, 922 F.2d 712, 723-24 (11th Cir.), order vacating appeal, 931 F.2d 711, 712 (11th Cir. 1991), partially reinstated and appealed sub nom, Howell v. Burden, 12 F.3d 190 (11th Cir. 1994).
[26]. Monell, 436 U.S. at 694.
[27]. Monell, at 691-695; Polk County v. Dodson, 454 U.S. 312, 325 (1981); Fundiller v. City of Cooper City, 777 F.2d 1436, 1443 (11th Cir. 1985). Isolated unconstitutional incidents, without more, cannot bind a municipality. Oklahoma City v. Tuttle, 471 U.S. 808 (1985).
[28]. City of Canton v. Harris, 489 U.S. 378 (1989); Gold v. City of Miami, 1998 WL 54803 (11th Cir. 1998); Sewell v. Town of Lake Hamilton, 117 F.3d 488 (11th. Cir. 1997). However, where the employee's proper course of action "is obvious to all without training or supervision, then the failure to train or supervise is generally not 'so likely' to produce a wrong decision as to support an inference of deliberate indifference by city policymakers to the need to train or supervise." Sewell, 117 F.3d at 490.
[29]. Pembaur v. City of Cincinnati, 475 U.S. 469 (1986); Bryan County v. Brown, 520 U.S. 397 (1997). Who is a "final policymaker" is decided by reference to state law. Pembaur, at 483; McMillan v. Monroe County, 520 U.S. 781 (1997).
[30]. City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988). However, merely going along with the discretionary decisions made by subordinates is not a delegation to them of the authority to make policy. Id.
[31]. Greason v. Kemp, 891 F.2d 829, 836 (11th Cir. 1990); Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990); Zatler v. Wainewright, 802 F.2d 397, 401 (11th Cir. 1986).
[32]. Leatherman v. Tarrant County, 507 U.S. 163 (1993). There is, however, a heightened pleading standard for individual capacity claims. See note 83 infra, and accompanying text.
[33]. Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617 (1979); Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). Section 1983 does not provide for the vindication of rights secured by state law. Id. at 145-146; Almand v. DeKalb County, 103 F.3d 1510, 1513 (11th Cir. 1997).
[34]. U.S.Const. amend. XIV, §1. The Fourteenth Amendment Due Process clause is a limitation on state power, while the Fifth Amendment Due Process clause limits federal power. Halinger v. Davis, 146 U.S. 314, 319 (1892).
[35]. Paul v. Davis, 424 U.S. 693, 701 (1976).
[36]. Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985); Baker v. McCollan, 443 U.S. 137, 145 (1979).
[37]. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972); See also, Bishop v. Wood, 426 U.S. 341, 344 (1976).
[38]. Board of Regents, 408 U.S. at 576.
[39]. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985).
[40]. Loudermill, 470 U.S. at 542.
[41]. Parratt v. Taylor, 451 U.S. 527, 543-544 (1981).
[42]. Daniels v. Williams, 474 U.S. 327 (1986).
[43]. Hudson v. Palmer, 468 U.S. 517, 533 (1984)("[A]n unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the due process clause of the 14th amendment if a meaningful postdeprivation remedy for the loss is available. For intentional, as for negligent deprivations of property by state employees, the state's action is not complete until and unless it provides or refuses to provide a suitable postdeprivation remedy."). The Court later held that negligence does not constitute a "deprivation." Daniels v. Williams, 474 U.S. 327 (1986). See also, Zinermon v. Burch, 494 U.S. 113, 132 (1990).
[44]. Zinermon, 494 U.S. at 132.
[45]. DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189 (1989); Santamorena v. Georgia Military College, 147 F.3d 1337, 1339-1340 (11th Cir. 1998). As with all actions predicated upon a violation of the United States Constitution, in order to state a claim for a deprivation of due process, "state action" must be present. The eleventh circuit has recognized three primary tests to determine whether the actions of a private entity constitute state action: (1) the public function test; (2) the state compulsion test; and (3) the nexus/joint action test. National Broad Co. v. Communications Workers of Am., 860 F.2d 1022, 1026 (11th Cir. 1988).
[46]. Collins v. City of Harker Heights, Texas, 503 U.S. 115, 128 (1992); Rymer v. Douglas County, 764 F.2d 796, 801 (11th Cir. 1985).
[47]. Collins, 503 U.S. at 125("As a general matter, the Court has always been reluctant to expand the concept of substantive due process because the guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended."). See also, County of Sacramento v. Lewis, 523 U.S. 833 (1998)(high speed police chases with no intent to harm suspects physically or to worsen their legal plight do not give rise to liability for violation of substantive due process); Albright v. Oliver, 510 U.S. 266, 271-272 (plaintiff could not make out substantive due process claim for alleged prosecution without probable cause because Fourth Amendment is more appropriately considered); Graham v. Connor, 490 U.S. 386, 394 (1989)(claims of force arrest by police officer during arrest or detention cannot state a substantive due process claim--it is more appropriately analyzed under Fourth Amendment); McKinney v. Pate, 20 F.3d 1550, 1560 (11th Cir. 1994)(in non-legislative cases, only procedural due process claims are available to pretextually terminated employees).
[48]. See note 46, supra, and accompanying text.
[49]. McKinney v. Pate, 20 F.3d 1550, 1557 (11th Cir. 1994).
[50]. Palko v. Connecticut, 302 U.S. 319, 325 (1937). For example, the Supreme Court has held that the Fourth Amendment proscription against unreasonable searches and seizures, Mapp v. Ohio, 367 U.S. 643 (1961), and the Sixth Amendment right to a speedy public trial, Klopfer v. North Carolina, 386 U.S. 213 (1967), apply to the states.
[51]. Albright v. Oliver, 510 U.S. 266, 273 (1994); Graham v. Connor, 490 U.S. 386, 395 (1989).
[52]. Maine v. Thiboutot, 448 U.S. 1 (1980).
[53]. Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 101, 106 (1989) ("Section 1983 speaks in terms of 'rights, privileges, or immunities,' not violations of federal law.").
[54]. Id.
[55]. Pennhurst State School and Hospital v Halderman, 451 U.S. 1, 19 (1981).
[56]. Golden State, 493 U.S. at 106 (quoting Wright v. Roanoke Redevelopment & Hous. Auth., 479 U.S. 418, 431-32 (1987)). See also, Maynard v. Williams, 72 F.3d 848, 851 (11th Cir. 1996).
[57]. Howlett v. Rose, 496 U.S. 356 (1990). Of course, a defendant in state court may remove to federal court. 28 U.S.C. § 1441.
[58]. Monroe v. Pape, 365 U.S. 167, 183 (1961)(exhaustion of judicial remedies is not a prerequisite); Patsy v. Florida Board of Regents, 457 U.S. 496, 501 (1982)(exhaustion of administrative remedies is not a prerequisite). But see, Younger v. Harris, 401 U.S. 37 (1971)(a federal plaintiff is barred from seeking declaratory or injunctive relief relating to ongoing state criminal judicial proceedings); Heck v. Humphrey, 512 U.S. 477 (1994)(plaintiff must prove that a conviction or sentence has been reversed prior to recovering damages for unconstitutional conviction or imprisonment); 42 U.S.C. § 1997e (a prisoner's civil rights lawsuit may be delayed up to 180 days to require the prisoner to exhaust administrative remedies).
[59]. Zinermon v. Burch, 494 U.S. 113, 124 (1990).
[60]. Carey v. Piphus, 435 U.S. 247 (1978).
[61]. Farrar v. Hobby, 506 U.S. 103, 112 (1992); Carey v. Piphus, 435 U.S. 247, 266-267 (1978).
[62]. Smith v. Wade, 461 U.S. 30 (1983); City of Newport v. Fact Concerts, 453 U.S. 247 (1981). A municipality may, however, be jointly and severally liable. Finch v. City of Vernon, 877 F.2d 1497 (11th Cir. 1989).
[63]. 42 U.S.C. § 1983.
[64]. Edelman v. Jordan, 415 U.S. 651 (1974). But as discussed above, because states are not "persons" under the statute, they cannot be sued in either state or federal court. See note 6, supra, and accompanying text.
[65]. Owen v. City of Independence, MO, 445 U.S. 621 (1980); Monell v. Dept. of Social Services of New York, 436 U.S. 658, 699-700 (1978).
[66]. Howlett v. Rose, 496 U.S. 356 (1990); Hamm v. Powell, 874 F.2d 766, 770 (11th Cir. 1989).
[67]. Felder v. Casey, 487 U.S. 131 (1988).
[68]. Harlow v. Fitzgerald, 457 U.S. 800 (1982). See also, Anderson v. Creighton, 483 U.S. 635 (1987); Lassiter v. Alabama A & M University Board of Trustees, 28 F.3d 1146 (11th Cir. 1994)(en banc).
[69]. Harlow, 457 U.S. at 817; Lassiter, 28 F.3d at 1149.
[70]. Lassiter, 28 F.3d at 1149; Ensley v. Soper, 142 F.3d 1402, 1406 (11th Cir. 1998)(the plaintiff must point to case law which predates the official's alleged improper conduct, involves materially similar facts, and truly compels the conclusion that the plaintiff had a right under federal law).
[71]. Crawford-El v. Britton, 523 U.S. 574 (1998); Anderson v. Creighton, 483 U.S. 635, 641 (1987); Harlow v Fitzgerald, 457 U.S. 800 (1982).
[72]. "One of the purposes of immunity, absolute or qualified, is to spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit." Siegert v. Gilley, 500 U.S. 226, 232 (1991). See also, Ansley v. Heinrich, 925 F.2d 1339, 1345 (11th Cir. 1991).
[73]. Siegert v. Gilley, 500 U.S. 226 (1991); GJR Investments Inc. v. Escambia County, 132 F.3d 1359, 1367 (11th Cir. 1998). Courts should not assume that the plaintiff states a constitutional claim simply to get to the qualified immunity issue. Siegert, 500 U.S. at 232.
[74]. Jenkins v. Talladega City Bd. of Educ., 115 F.3d 821, 826-27 n.4 (11th Cir. 1997)(en banc). "Public officials are not obligated to be creative or imaginative in drawing analogies from previously decided cases." Id. at 827.
[75]. Harlow, 457 U.S. at 815.
[76]. Behrens v. Pelletier, 516 U.S. 299, 313 (1996); Hunter v. Bryant, 502 U.S. 224, 228 (1991); Stone v. Peacock, 968 F.2d 1163, 1166 (11th Cir. 1992)(if there are disputed factual issues regarding qualified immunity that a jury should resolve, special interrogatories would be appropriate).
[77]. Hunter v. Bryant, 502 U.S. 224, 228 (1991). A defendant official may assert the qualified immunity defense in 12(b)(6) motion for failure to state a claim, as an affirmative defense in a 12(c) request for judgment on the pleadings, and on a Rule 56(e) summary judgment motion. Ansley v. Heinrich, 925 F.2d 1339, 1347 (11th Cir. 1991).
[78]. A defendant in state court does not necessarily have the right to an interlocutory appeal. Johnson v. Fankell, 520 U.S. 911 (1997). But see, Fla.R.App.P. 9.130(a)(3)(C)(viii).
[79]. Mitchell v. Forsyth, 472 U.S. 511, 525-26 (1985). However, a defendant may not appeal the denial of a summary judgment motion on the issue of qualified immunity if the denial was based solely upon the existence of disputed factual issues, as opposed to a finding that the law was not clearly established, or that the defendant did not act objectively reasonably. Johnson v. Jones, 515 U.S. 304 (1995).
[80]. Johnson v. Fankell, 520 U.S. 911 (1997)("[I]f [qualified immunity] is found applicable at any stage of the proceedings, it determines the outcome of the litigation by shielding the official from damages liability); Behrens v. Pelletier, 516 U.S. 299, 305-11 (1996). The other claims that remain for trial may consist of a claim against the official in his official capacity. Id.
[81]. Crawford-El v. Britton, 523 U.S. 574, 598 (1998)("If the defendant does plead the immunity defense, the district court should resolve that threshold question before permitting discovery"); Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)("Unless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before commencement of discovery.").
[82]. Summit Medical Associates, P.C. v. James, 1998 WL 125776 (M.D.Ala. 1998)(citing Goshtasby v. Board of Trustees of Univ. of Ill., 123 F.3d 427 (7th Cir. 1997))(relating to appeal of Eleventh Amendment immunity).
[83]. GJR Investments, Inc. v. Escambia County, 132 F.3d 1359, 1367 (11th Cir. 1998).
[84]. See, Richardson v. McKnight, 521 U.S. 399 (1997)(private prison guards are not entitled to qualified immunity); Wyatt v. Cole, 504 U.S. 158 (1992)(private individuals who invoked state replevin, garnishment, or attachment statutes were not entitled to qualified immunity). However, the Supreme Court did not "foreclose the possibility that private defendants . . . could be entitled to an affirmative defense based upon good faith and/or probable cause or that § 1983 suits against private, rather than governmental, parties could require plaintiffs to carry additional burdens." Wyatt, 504 U.S. at 169.
[85]. See, McDuffie v. Hooper, 982 F.Supp. 817 (M.D. Ala. 1997)(private corporate health care providers who contract with government agencies are not entitled to qualified immunity); Hartman v. Correctional Medical Services, Inc., 960 F.Supp 1577, 1582 (M.D. Fla. 1996); Smith v. United States, 850 F.Supp 984, 986 (M.D. Fla. 1994). But see, Blumel v. Mylander, 954 F.Supp 1547, 1560 (M.D. Fla. 1997).
[86]. Supreme Court of Virginia v. Consumers Union, 446 U.S. 719 (1980); Tenney v. Brandhove, 341 U.S. 367 (1951). However, individual legislative immunity does not apply where the decision is an application of policy to a specific party. In that instance, the act is said to be administrative as opposed to legislative. Crymes v. DeKalb County, 923 F.2d 1482, 1486 (11th Cir. 1991).
[87]. 42 U.S.C. § 1983 was amended in 1996 to provide judicial officers with immunity from injunctive relief. This amendment partially overruled Pulliam v. Allen, 466 U.S. 522 (1984), which provided that judges were immune from suits for damages, but not injunctive relief.
[88]. Prosecutors are entitled to immunity for activities that are "intimately associated with the judicial phase of the criminal process," but a prosecutor engaged in investigative or administrative activities is only entitled to a good faith defense. Imbler v. Pachtman, 424 U.S. 409, 430 (1976). See also, Kalina v. Fletcher, 522 U.S. 118 (1997).
[89]. Board of Regents v. Tomanio, 446 U.S. 478, 483 (1980).
[90]. Wilson v. Garcia, 471 U.S. 261 (1985). But accrual of the statute of limitations is governed by federal law, while tolling of the statute of limitations is governed by state law. Mullinax v. McElhenney, 817 F.2d 711, 716 n.2 (11th Cir. 1987). See also, Hardin v. Straub, 490 U.S. 536 (1989); Owens v. Okure, 488 U.S. 235 (1989).
[91]. 42 U.S.C. § 1988.
[92]. One who recovers nominal damages is not a prevailing party. Farrar v. Hobby, 506 U.S. 103, 114 (1992). The Court reasoned that the most critical factor in determining the reasonableness of a fee award is the degree of success obtained. Id. at 114 (citing Hensley v. Eckerhart, 461 U.S. 424, 436 (1983)). Also, see Marek v. Chesny, 473 U.S. 1 (1985), for a discussion of the interplay between 42 U.S.C. § 1988 and the offer of judgment provision contained in Fed.R.Civ.P 68.
[93]. Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 421 (1978).
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Subject: Cestui Que Vie Act 1666
Date: Sun, 20 Mar 2011 18:46:07 -0500
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Cestui Que Vie Act 1666
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Cestui Que Vie Act 1666
1666 CHAPTER 11 18 and 19 Cha 2
An Act for Redresse of Inconveniencies by want of Proofe of the Deceases of Persons beyond the Seas or absenting themselves, upon whose Lives Estates doe depend.
X1Recital that Cestui que vies have gone beyond Sea, and that Reversioners cannot find out whether they are alive or dead.
Whereas diverse Lords of Mannours and others have granted Estates by Lease for one or more life or lives, or else for yeares determinable upon one or more life or lives And it hath often happened that such person or persons for whose life or lives such Estates have beene granted have gone beyond the Seas or soe absented themselves for many yeares that the Lessors and Reversioners cannot finde out whether such person or persons be alive or dead by reason whereof such Lessors and Reversioners have beene held out of possession of their Tenements for many yeares after all the lives upon which such Estates depend are dead in regard that the Lessors and Reversioners when they have brought Actions for the recovery of their Tenements have beene putt upon it to prove the death of their Tennants when it is almost impossible for them to discover the same, For remedy of which mischeife soe frequently happening to such Lessors or Reversioners.
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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.Editorial Information
X1Abbreviations or contractions in the original form of this Act have been expanded into modern lettering in the text set out above and below.
Modifications etc. (not altering text)
C1Short title "The Cestui que Vie Act 1666" given by Statute Law Revision Act 1948 (c. 62), Sch. 2
C2Preamble omitted in part under authority of Statute Law Revision Act 1948 (c. 62), Sch. 1
C3Certain words of enactment repealed by Statute Law Revision Act 1888 (c. 3) and remainder omitted under authority of Statute Law Revision Act 1948 (c. 62), s. 3
[I.] Cestui que vie remaining beyond Sea for Seven Years together and no Proof of their Lives, Judge in Action to direct a Verdict as though Cestui que vie were dead.E+W
If such person or persons for whose life or lives such Estates have beene or shall be granted as aforesaid shall remaine beyond the Seas or elsewhere absent themselves in this Realme by the space of seaven yeares together and noe sufficient and evident proofe be made of the lives of such person or persons respectively in any Action commenced for recovery of such Tenements by the Lessors or Reversioners in every such case the person or persons upon whose life or lives such Estate depended shall be accounted as naturally dead, And in every Action brought for the recovery of the said Tenements by the Lessors or Reversioners their Heires or Assignes, the Judges before whom such Action shall be brought shall direct the Jury to give their Verdict as if the person soe remaining beyond the Seas or otherwise absenting himselfe were dead.
II. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F1E+W
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F1S. II repealed by Statute Law Revision Act 1948 (c. 62), Sch. 1
III. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F2E+W
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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.Amendments (Textual)
F2S. III repealed by Statute Law Revision Act 1863 (c. 125)
IV If the supposed dead Man prove to be alive, then the Title is revested. Action for mean Profits with Interest.E+W
[X2Provided alwayes That if any person or [X3person or] persons shall be evicted out of any Lands or Tenements by vertue of this Act, and afterwards if such person or persons upon whose life or lives such Estate or Estates depend shall returne againe from beyond the Seas, or shall on proofe in any Action to be brought for recovery of the same [to] be made appeare to be liveing; or to have beene liveing at the time of the Eviction That then and from thenceforth the Tennant or Lessee who was outed of the same his or their Executors Administrators or Assignes shall or may reenter repossesse have hold and enjoy the said Lands or Tenements in his or their former Estate for and dureing the Life or Lives or soe long terme as the said person or persons upon whose Life or Lives the said Estate or Estates depend shall be liveing, and alsoe shall upon Action or Actions to be brought by him or them against the Lessors Reversioners or Tennants in possession or other persons respectively which since the time of the said Eviction received the Proffitts of the said Lands or Tenements recover for damages the full Proffitts of the said Lands or Tenements respectively with lawfull Interest for and from the time that he or they were outed of the said Lands or Tenements, and kepte or held out of the same by the said Lessors Reversioners Tennants or other persons who after the said Eviction received the Proffitts of the said Lands or Tenements or any of them respectively as well in the case when the said person or persons upon whose Life or Lives such Estate or Estates did depend are or shall be dead at the time of bringing of the said Action or Actions as if the said person or persons where then liveing.]
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X2annexed to the Original Act in a separate Schedule
X3Variant reading of the text noted in The Statutes of the Realm as follows: O. omits [O. refers to a collection in the library of Trinity College, Cambridge]
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