State constitutions: the right ticket for some torts.

There's an alternative to using federal civil rights laws when suing the state and its employees. Look to the state constitution.

Both federal and state bills of rights prohibit the official misconduct that regularly turns up in reported civil rights decisions: racially motivated police searches and arrests, intentional abuse of prisoners, and government retaliation against employees for the exercise of free speech.

Whatever one thinks of the substantive federal law in these areas, it is clear that federal remedies are not adequate when the violators are state officials or the state itself. This article discusses a feasible alternative to federal civil rights law: Sue these two classes of defendants instead for violating a citizen's state constitutional rights.

The civil rights bar is well aware of how difficult it is to get effective relief for a client whose federal constitutional rights have been violated by state government. Current federal decisional law stands in the way.

Only "persons" can be made defendants in a civil rights suit for money damages under 42 U.S.C. [Section] 1983. A human being, such as a state trooper or a prison warden, when sued in his or her individual capacity, is a person.(1) A city, county, or school district is also a person.(2)

But the state is not a person and so cannot be sued for money damages via [Section] 1983--not in federal court and not in state court,(3) no matter how blatantly unconstitutional an agency practice or executive policy, nor how discriminatory a mass sweep and search by state troopers.

And, in individual capacity suits against state employees, even if the plaintiff overcomes a qualified immunity defense, there is an absolute rule against imposing respondeat superior liability under [Section] 1983.(4) In short, a state has no direct or vicarious liability under federal law.

The federal law is unlikely to change. But in some areas of the country, the state bill of rights is already serving as a basis for suits for damages against the state itself or against its employees and officers.

In 12 states, there is "green light" precedent recognizing an implied cause of action for damages based directly on the state constitution.(5) In at least 9 more, there is "maybe later" dicta that leaves open the possibility.(6)

Free from the limits on parallel federal claims, state law can impose respondeat superior liability on governmental employers for the constitutional torts of their employees. There are even important state court opinions that deny governmental entitles the defense of sovereign immunity for state constitutional claims.(7)

Steps toward suit

Three steps are needed in order to establish an effective claim against the state for violations of state constitutional rights. First, the court must recognize the basic constitutional tort suit against a governmental defendant.

Second, the court must find that neither the state nor a state official can assert sovereign or governmental immunity for violations of the state bill of rights. This step would also mean that legislated damages caps should not apply.

Finally, if compensation and deterrence values are to be reliably achieved, respondeat superior must be the rule in constitutional torts, as in ordinary torts.

As there is usually no statutory authority in the forum state for a damages suit arising under the state constitution, litigants and courts have fumed to two common law doctrines.(8)

One is found in the analogous federal Bivens line of cases, which recognizes an implied right of action to redress violations of constitutional rights when there is no other adequate remedy.(9) The other is the statutory tort doctrine expressed in the Re-statement (Second) of Torts [Section] 874A (1979).

When a legislative provision protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the provision, accord to an injured member of the class a right of action, using a suitable existing tort action or a new cause of action analogous to an existing tort action.

A state bill of rights expresses binding obligations on government, which give rise to corresponding individual rights. The existence of these rights empowers a common law court to supply a remedy for their breach, that is, a tort action for damages.

Occasionally the argument over damages is cast in terms of whether the clause that secures the right is self-executing.(10) However, this argument addresses only a threshold question--whether a clause is judicially enforceable at all.

Clearly, the typical constitutional right is self-executing because it is meant to be enforced in court immediately, without waiting for legislative authorization or clarification. What the court needs to decide is whether the remedy of damages should be available for violations of self-executing clauses.

The shape of arguments at steps two and three--immunity and vicarious liability--depends on local state law. If a state's tort claims act or equivalent law waives the state's immunity for torts or injuries committed by its employees, then it may be sufficient to construe the statute to waive immunity for any violation of the state constitution as a tort or injury.

However, fitting within a general statutory waiver might not be enough. Often state immunity laws, as well as their common law counterparts, are threaded with exceptions to liability for discretionary acts, intentional torts, law enforcement activities, and so forth, any of which could defeat recovery for a constitutional rights claim. Legislated damages caps may also apply.

If statute-based immunity poses serious obstacles to adequate compensation, the court must be persuaded to make an outright exception to the law for constitutional injuries. Constitutional and policy reasons for doing so are powerful.

As a Michigan court noted on this issue: "Constitutional rights serve to restrict government conduct. These rights would never serve this purpose if the state could use governmental immunity to avoid constitutional restrictions."(11)

Counsel's job here is probably easiest when immunity is based only on common law, and most difficult when the state's immunity is preserved in the state constitution itself.

A state constitutional tort theory, as described here, can also be asserted against local government defendants in state court. If this claim is joined with a related [Section] 1983 claim, either state or federal court would have jurisdiction. If the complaint names the state as a defendant, however, it should be initiated in state court. A state law claim against the state, its agencies, or its departments cannot be heard by a federal district court.

A supplemental state law claim normally qualifies for federal subject matter jurisdiction when joined to a factually related federal law claim, pursuant to 28 U.S.C. [Section] 1367(a) (1994). But, as noted, a state is not a "person," so it is not a proper defendant under [Section] 1983. Nor can the state be joined as a pendent party to a [Section] 1983 claim against a state official. The state has Eleventh Amendment immunity from suit in federal court on all state law theories as well as on federal ones.

Finally, a pendent state law claim against a state officer is allowed only in a personal-capacity suit--not when relief of any kind would run against the state or the state treasury.(12) In addition, chances of obtaining innovative pronouncements of state constitutional law are clearly better in state court. Federal courts are empowered by [Section] 1367(c)(1) to decline jurisdiction over claims that raise a "novel or complex issue of state law."

New cases from New York and Utah illustrate how these theories work in suits against the state or its employees for police misconduct and prisoners' rights. In the New York case, plaintiffs were a class of nonwhite males who alleged they were subjected to illegal and discriminatory police investigations in violation of their state and federal constitutional rights.(13)

After an elderly woman reported being attacked by a black male in a university town, a combined force of state, city, and university law enforcement officers began a street sweep, which involved stopping, examining, and questioning all black males, both students and nonstudents, on and off campus. No one was arrested for the crime, which remained unsolved.

Suit was then filed in the New York Court of Claims, which has subject matter jurisdiction over any tort claims against the state. The complaint sought monetary damages for violations of federal civil rights and of state constitutional provisions governing search and seizure and nondiscrimination.

Plaintiffs named the state of New York as a defendant, based on unconstitutional acts by the New York State Police, the State University of New York, and officers and employees of those organizations.

Defense lawyers successfully moved to dismiss the state law claims for failure to state a cause of action and for lack of subject matter jurisdiction, arguing that no statute and no traditional common law tort theory expressly authorized these claims for money damages.

On appeal, New York's highest court reversed. It identified three legal theories that supported plaintiffs' complaint: the reasoning advanced in the Restatement (Second) of Torts [Section] 874A; by analogy, the Bivens case; and common law antecedents of the constitutional provision at issue.(14)

Section 874A, it observed, allows a court to imply a civil remedy for violations of legislated or constitutional duties--even though one is not expressly provided--if it it determines that the remedy furthers the purpose of the provision and is needed to ensure its effectiveness.

The underlying rationale of Bivens was that constitutional guarantees are worthy of protection on their own terms, without being linked to some common law or statutory tort. Courts have the duty to enforce these rights by ensuring that individuals receive an adequate remedy for violation of a constitutional duty.

Finally, the court looked at legal history. English common law dating to the Magna Carta supported the notion that rights now guaranteed by the equal protection and the search-and-seizure clauses of the New York Constitution had common law antecedents warranting a tort remedy for their invasion.

On the key issue of waiver of immunity, plaintiffs also prevailed. The state contended that New York's waiver of sovereign immunity was limited to traditional common law torts, an argument that has been accepted in Hawaii.(15) The court pointed out that the state had waived its sovereign immunity for all tort actions, and the legal underpinnings of the constitutional claim were in tort law.

Tort claims were, moreover, properly assigned to the claims court. The net result of accepting the claim and fitting it within existing waivers represented a profound change to the status quo in plaintiffs' favor: The state was a proper defendant that could be vicariously liable.

The Utah Supreme Court first recognized a damages action for violation of state constitutional rights in 1996.(16) In an opinion of national importance, the court further ruled that legislated governmental immunities, such as damages caps, cannot be validly applied to shield state officials and the state itself when sued in these constitutional rights suits. On this fundamental question, there is little existing law.

Plaintiff was a state prisoner who alleged that a nurse's negligent failure to recognize and treat his medical complaints left him dependent on hemodialysis and greatly diminished his life expectancy.

Separate from his negligence suit, he filed a constitutionally based claim naming the nurse, the executive director of the Department of Corrections, and the medical administrator of the state prison, who had apparently rejected internal grievances filed by the prisoner over the lack of treatment. The prisoner's constitutional claim was founded on a provision of the Utah Constitution that forbids treating prisoners with "unnecessary rigor."

A jury awarded $490,000 in damages against all defendants on the constitutional claim. But the trial court reduced the award to conform to the Utah Governmental Immunity Act section that caps at $250,000 all personal injury damages against state officials.

On appeal, the Utah Supreme Court answered two questions on the constitutionality of immunity statutes and then explained its rationale for recognizing a constitutionally based damages claim.

First, as applied to the prisoner's common law negligence action, the court affirmed that statutory governmental immunity was constitutional, over plaintiff's argument that immunity offended the state's "open courts" clause.(17) However, capping damages on constitutionally based claims was different: Statutory immunity would not apply to this claim because it would be an unreasonable, even "crippling," regulation of plaintiff's constitutional right to be free of "unnecessarily rigorous treatment."(18)

Though the state was not named as a defendant in this case, the opinion stated on the immunity issue that "governmental immunity cannot apply where a claimant alleges that the state or a state employee violated his constitutional rights."(19)

Second, the court explained the basic theory of liability for violations of the state constitutional clause: "Article 1, Section 9 [on unnecessary rigor] may provide the basis for an award of damages if it is a self executing provision--which traditionally allows courts to award injunctions and invalidate conflicting statutes--and if it furnishes sufficient authority for remedies of money damages."(20)

The first requirement, that the provision be self-executing, was satisfied by the language and prohibitory voice of this provision. As the court wrote, it did more than state general principles; it prohibited "specific evils that may be defined and remedied without implementing legislation."(21)

The second step of the analysis looked at federal, state, and common law antecedents for compensatory remedies for constitutional injuries. The court was persuaded by the example of Bivens and the history of individual rights as embodied in the Magna Carta and English common law, which had long preserved access to remedies of money damages for violations of individual rights. Injunctive relief was not adequate to remedy this plaintiff's losses. The conclusion was that "self-executing constitutional provisions allow for awards of money damages."(22)

The next issue presented was whether self-executing provisions provide a basis for an award of damages against state employees, or only against the state. First, the court, like others before it, recognized that public officials cannot be treated for these purpose as purely private individuals. Because of their positions, they have a unique capacity to harm that private individuals do not have.

This capacity is especially pronounced in the case of prisoners, who have no choice but to depend on public employees. Therefore, they could be held liable if their conduct met the appropriate standards of intent and culpability.

What is needed to make state constitutions an effective source of protection for civil rights is state legislation creating a claim for state constitutional violations, and stating what defenses and procedures apply. Proponents of these statutes should avoid copying the language of [Section] 1983, with all of its complexities and limitations. For the same reasons, plaintiff attorneys and state courts should not borrow or copy federal doctrine in developing an independent state constitutional tort.

An unfortunate example of such borrowing is found in Michigan. Courts there have not only absorbed the difficult Monell municipal "policy" doctrine into state constitutional remedies law but also have extended it to minimize recovery against individual defendants.(23)

Similarly, while Bivens is a useful precedent, exclusive reliance on the Bivens line of cases is also undesirable from a plaintiff's point of view. One of its chief limitations is the discretion reserved by the Court to refuse damages awards when there are "special factors counselling hesitation" or when people injured by violations of constitutional rights have "another remedy, equally effective in the view of Congress."(24)

In cases decided after Bivens, the Court has invoked these exceptions to deny access to a constitutional damages claim when a statute affords some kind of alternative remedy, even one without full compensation.(25)

State courts have followed the Court's example to turn down damages claims for state counterpart rights when any kind of alternative remedy existed.(26) Finally, the opinion does not, of its own force, allow suit against the United States but only against individual officers.

Notes

(1.) State officials can be sued for damages in their individual capacities under [section] 1983, see Hafer v. Melo, 502 U.S. 21. 25-31 (1991), but enjoy a powerful, though qualified, immunity from damages for conduct that a reasonable public official could have thought was constitutional. Anderson v. Creighton, 483 U.S. 635, 638 (1987).

(2.) Monell v. Department of Soc. Servs., 436 U.S. 658, 690 (1978). Local government, however, can only be sued when an official policy is responsible for the constitutional deprivation, id. at 690-91, often a difficult showing.

(3.) Neither states, nor state officials acting in their official capacities, are "persons" for purposes of damages suits under [Section] 1983. Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989). Will effectively means that states cannot be sued for damages under [Section] 1983 in state court. They were already immune from suit in federal court because of the Eleventh Amendment. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984).

(4.) Monell, 436 U.S. 658, 691-95.

(5.) They are California, Illinois, Louisiana, Maryland, Massachusetts, Michigan, New Jersey, New York, North Carolina, Pennsylvania, Rhode Island, and Utah.

(6.) They are Colorado, Connecticut, Florida, New Hampshire, New Mexico, North Dakota, Ohio, Vermont, and Wisconsin. In half these states, the . court declined to recognize a particular constitutional claim because alternative administrative remedies were available.

(7.) Reported cases so far come from Michigan, New York, North Carolina, and Utah.

(8.) In addition, statutory taxpayer suits that challenge illegal governmental expenditures furnish a unique avenue for equitable relief against some unconstitutional acts of state or local government. A favorable judgment in a taxpayer suit compels a return of misused public funds to the treasury and sometimes carries an award of attorney fees to prevailing plaintiffs.

(9.) Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (finding that a violation of the Fourth Amendment by a federal agent acting under color of his authority gave rise to a claim for damages directly under the U.S. Constitution, even though no such action had been created by statute).

(10.) The term "self-executing" means the constitutional provision is effective and binding without further action by the legislature. See Bott v. DeLand, 922 P.2d 732,737 (Utah 1996).

(11.) Burdette v. State, 421 N.W.2D 185, 187 (Mich. Ct. App. 1988).

(12.) Pennhurst, 465 U.S. 89; Hafer, 502 U.S. 21; Rodriguez v. Phillips, 66 F.3d 470 (2d Cir. 1995).

(13.) Brown v. State, 674 N.E.2d 1129 (N.Y. 1996) (holding that claims based upon self-executing provisions of New York Constitution are facially sufficient to state causes of action against defendants).

(14.) Id. at 1138.

(15.) Figueroa v. State, 604 P.2d 1198, 1207 (Haw. 1979).

(16.) Bott, 922 P.2d 732.

(17.) Id. at 736.

(18.) Id. at 744.

(19.) Id. at 736.

(20.) Id. at 737.

(21.) Id.

(22.) Id. at 739.

(23.) See Carlton v. Department of Corrections, 546 N.W.2d 671, 678 n.1 (Mich. Ct. App. 1996) (requiring plaintiff who alleges a state constitutional violation against governmental employees in their individual capacities to show "that the alleged constitutional violation occurred by virtue of a custom or policy that the governmental employees were carrying out"), appeal denied, 557 N.W.2d 312 (Mich. 1996).

(24.) 403 U.S. 388, 396-97.

(25.) See, e.g., Bush v. Lucas, 462 U.S. 367 (1983) (denying Bivens action under First Amendment when civil service remedy was available to aggrieved employee, even assuming his First Amendment rights had been violated, and conceding that the statutory remedy did not fully compensate him for the harm he suffered).

(26.) Provens v. Stark County Bd. of Mental Retardation & Dev. Disabilities, 594 N.E.2d 959 (Ohio 1992) (holding legislature was the more appropriate body to create remedies for alleged constitutional violations, citing Bush, 462 U.S. 367); King v. Alaska State Hous. Auth., 633 P.2d 256, 259-61 (Alaska 1981) (denying damage relief under state constitution because of the "special factors counselling hesitation" exception of Bivens).

RELATED ARTICLE: Questions for litigating state claims

Lawyers preparing to file a civil suit to enforce rights that are secured by the state constitution should investigate these questions:

* Has the state recognized, by common law or by statute. a private right of action against this class of defendants

to enforce a right or duty found in the state constitution (or, by analogy, in a state statute)?

If so, does the right of action extend to a suit for compensatory damages as well as equitable relief?

Does the state authorize a taxpayer suit for special equitable relief, for example, where the government spent public funds to perform an unconstitutional act?

* If the defendant in a constitutional tort suit is the state, a state agency, or a local governmental entity, is it immune from liability for damages because of state rules of sovereign or governmental immunity?

If immunity applies, does the constitutional suit fit within an exception, for example, as an injury, tort, or breach of contract, for which state law has waived the immunity of this entity?

Does the state's waiver of entity immunity for these suits make the entity liable for the acts and omissions of its officer and employees?

If respondeat superior is the general rule for the torts of public employees, is recovery for this constitutional claim nevertheless barred by an exception -- for example, for intentional torts, or exercises of discretion--for which the entity retains immunity.?

Does state law cap compensatory damages or ban punitive damages against this entity?

If answers to any of these questions bar or limit recovery, will the state court reject the defense of immunity because of the special status of constitutional rights suits?

* If the defendants include individual governmental officers or employees, do state statutes or common law rules give them either absolute immunity or qualified immunity?

* If ordinary claims against governmental defendants are governed by burdensome rules and restrictions imposed by the state's tort claims act, such as a 90-day notice of claim, or trial without a jury, will these apply equally to constitutionally based damages claims or will the court make an exception?

* Do state laws or equitable doctrines allow an award of prevailing party attorney fees in suits like these? For prevailing defendants as well as plaintiffs?

* If not, is it possible to join the state claim with a plausible [Section] 1983 claim, establishing potential entitlement to [section] 1988 fees for a state law victory?

* If the case involves a public or private employee who has been discharged or disciplined, does the state recognize, as an exception to at-will employment, the tort of wrongful discharge in violation of public policy? If so, will the court look to the state constitution as a source for that policy?

Jennifer Friesen is the author of a treatise on state constitutional rights and a law professor at Loyola Law School in Los Angeles.