# Will v. Michigan Department of State Police/Dissent Stevens

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinions Brennan Stevens
Justice STEVENS, dissenting.
Legal doctrines often flourish long after their raison d'etre has perished. The doctrine of sovereign immunity rests on the fictional premise that the "King can do no wrong." Even though the plot to assassinate James I in 1605, the execution of Charles I in 1649, and the Colonists' reaction to George III's stamp tax made rather clear the fictional character of the doctrine's underpinnings, British subjects found a gracious means of compelling the King to obey the law rather than simply repudiating the doctrine itself. They held his advisers and his agents responsible.
In our administration of § 1983, we have also relied on fictions to protect the illusion that a sovereign State, absent consent, may not be held accountable for its delicts in federal court. Under a settled course of decision, in contexts ranging from school desegregation to the provision of public assistance benefits to the administration of prison systems and other state facilities, we have held the States liable under § 1983 for their constitutional violations through the artifice of naming a public officer as a nominal party. Once one strips away the Eleventh Amendment overlay applied to actions in federal court, it is apparent that the Court in these cases has treated the State as the real party in interest both for the purposes of granting prospective and ancillary relief and of denying retroactive relief. When suit is brought in state court, where the Eleventh Amendment is inapplicable, it follows that the State can be named directly as a party under § 1983.
An official-capacity suit is the typical way in which we have held States responsible for their duties under federal law. Such a suit, we have explained, " 'generally represent[s] only another way of pleading an action against an entity of which an officer is an agent.' " Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 3104, 87 L.Ed.2d 114 (1985) (quoting Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690, n. 55, 98 S.Ct. 2018, 2035, n. 55, 56 L.Ed.2d 611 (1978)); see also Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 101, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984). In the peculiar Eleventh Amendment analysis we have applied to such cases, we have recognized that an official-capacity action is in reality always against the State and balanced interests to determine whether a particular type of relief is available. The Court has held that when a suit seeks equitable relief or money damages from a state officer for injuries suffered in the past, the interests in compensation and deterrence are insufficiently weighty to override the State's sovereign immunity. See Papasan v. Allain, 478 U.S. 265, 278, 106 S.Ct. 2932, 2940, 92 L.Ed.2d 209 (1986); Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 425, 88 L.Ed.2d 371 (1985); Edelman v. Jordan, 415 U.S. 651, 668, 94 S.Ct. 1347, 1358, 39 L.Ed.2d 662 (1974). On the other hand, although prospective relief awarded against a state officer also "implicate[s] Eleventh Amendment concerns," Mansour, 474 U.S., at 68, 106 S.Ct., at 426, the interests in "end[ing] a conti uing violation of federal law," ibid., outweigh the interests in state sovereignty and justify an award under § 1983 of an injunction that operates against the State's officers or even directly against the State itself. See, e.g., Papasan, supra, 478 U.S. at 282, 106 S.Ct., at 2942; Quern v. Jordan, 440 U.S. 332, 337, 99 S.Ct. 1139, 1143, 59 L.Ed.2d 358 (1979); Milliken v. Bradley, 433 U.S. 267, 289, 97 S.Ct. 2749, 2761, 53 L.Ed.2d 745 (1977).
In Milliken v. Bradley, supra, for example, a unanimous Court upheld a federal-court order requiring the State of Michigan to pay $5,800,000 to fund educational components in a desegregation decree "notwithstanding [its] direct and substantial impact on the state treasury." Id., at 289, 97 S.Ct., at 2761 (emphasis added). As Justice Powell stated in his opinion concurring in the judgment, "the State [had] been adjudged a participant in the constitutional violations, and the State therefore may be ordered to participate prospectively in a remedy otherwise appropriate." Id., at 295, 97 S.Ct., at 2764. Subsequent decisions have adhered to the position that equitable relief-even "a remedy that might require the expenditure of state funds," Papasan, supra, at 282, 106 S.Ct., at 2943-may be awarded to ensure future compliance by a State with a substantive federal question determination. See also Quern v. Jordan, 440 U.S., at 337, 99 S.Ct., at 1143.
Our treatment of States as "persons" under § 1983 is also exemplified by our decisions holding that ancillary relief, such as attorney's fees, may be awarded directly against the State. We have explained that "liability on the merits and responsibility for fees go hand in hand; where a defendant has not been prevailed against, either because of legal immunity or on the merits, § 1988 does not authorize a fee award against that defendant." Kentucky v. Graham, supra, at 165, 105 S.Ct., at 3104. Nonetheless, we held in Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), a case challenging the administration of the Arkansas prison system, that a Federal District Court could award attorneys fees directly against the State under § 1988, id., at 700, 98 S.Ct., at 2578; see Brandon v. Holt, 469 U.S. 464, 472, 105 S.Ct. 873, 878, 83 L.Ed.2d 878 (1985), and could assess attorneys fees for bad faith litigation under § 1983 " 'to be paid out of Department of Corrections funds.' " 437 U.S., at 692, 98 S.Ct., at 2574. In Supreme Court of Virginia v. Consumers Union of United States, Inc., 446 U.S. 719, 739, 100 S.Ct. 1967, 1978, 64 L.Ed.2d 641 (1980), Justice WHITE reaffirmed for a unanimous Court that an award of fees could be entered against a State or state agency, in that case a State Supreme Court, in an injunctive action under § 1983. In suits commenced in state court, in which there is no independent reason to require parties to sue nominally a state officer, we have held that attorney's fees can be awarded against the State in its own name. See Maine v. Thiboutot, 448 U.S. 1, 10-11, 100 S.Ct. 2502, 2506-2507, 65 L.Ed.2d 555 (1980).
The Civil Rights Act of 1871 was "intended to provide a remedy, to be broadly construed, against all forms of official violation of federally protected rights." Monell v. New York City Dept. of Social Services, 436 U.S. at 700-701, 98 S.Ct., at 2040-2041. Our holdings that a § 1983 action can be brought against state officials in their official capacity for constitutional violations properly recognize and are faithful to that profound mandate. If prospective relief can be awarded against state officials under § 1983 and the State is the real party in interest in such suits, the State must be a "person" which can be held liable under § 1983. No other conclusion is available. Eleventh Amendment principles may limit the State's capacity to be sued as such in federal court. See Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978). But since those principles are not applicable to suits in state court, see Thiboutot, supra, at 9, n. 7, 100 S.Ct., at n. 7; Nevada v. Hall, 440 U.S. 410, 99 S.Ct. 1182, 59 L.Ed.2d 416 (1979), there is no need to resort to the fiction of an official-capacity suit and the State may and should be named directly as a defendant in a § 1983 action.
The Court concludes, however, that "a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983," ante, at 71, n. 10, while that same party sued in the same official capacity is not a person when the plaintiff seeks monetary relief. It cites in support of this proposition cases such as Osborn v. Bank of United States, 22 U.S. (9 Wheat.) 738, 6 L.Ed. 204 (1824), in which the Court through Chief Justice Marshall held that an action against a state auditor to recover taxes illegally collected did not constitute an action against the State. This line of authority, the Court states, "would not have been foreign to the 19th-century Congress that enacted § 1983." Ante, at 71, n. 10.
On the Court's supposition, the question would be whethe the complaint against a state official states a claim for the type of relief sought, not whether it will have an impact on the state treasury. See, e.g., Governor of Georgia v. Madrazo, 26 U.S. (1 Pet.) 110, 124, 7 L.Ed. 73 (1828). At least for actions in state court, as to which there could be no constitutional reason to look to the effect on the State, see Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), the Court's analysis would support actions for the recovery of chattel and real property against state officials both of which were well known in the 19th century. See Poindexter v. Greenhow, 114 U.S. 270, 5 S.Ct. 903, 29 L.Ed. 185 (1884); United States v. Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171 (1882). Although the conclusion that a state officer sued for damages in his or her official capacity is not a "person" under § 1983 would not quite follow, it might nonetheless be permissible to assume that the 1871 Congress did not contemplate an action for damages payable not by the officer personally but by the State.
The Court having constructed an edifice for the purposes of the Eleventh Amendment on the theory that the State is always the real party in interest in a § 1983 official-capacity action against a state officer, I would think the majority would be impelled to conclude that the State is a "person" under § 1983. As Justice BRENNAN has demonstrated, there is also a compelling textual argument that States are persons under § 1983. In addition, the Court's construction draws an illogical distinction between wrongs committed by county or municipal officials on the one hand, and those committed by state officials on the other. Finally, there is no necessity to import into this question of statutory construction doctrine created to protect the fiction that one sovereign cannot be sued in the courts of another sovereign. Aside from all of these reasons, the Court's holding that a State is not a person under § 1983 departs from a long line of judicial authority based on exactly that premise.
I respectfully dissent.

## Notes

* ↑ "A very common phenomenon, and one very familiar to the student of history, is this. The customs, beliefs, or needs of a primitive time establish a rule or a formula. In the course of centuries the custom, belief, or necessity disappears, but the rule remains. The reason which gave rise to the rule has been forgotten and ingenious minds set themselves to inquire how it is to be accounted for. Some ground of policy is thought of, which seems to explain it and to reconcile it with the present state of things; and then the rule adapts itself to the new reasons which have been found for it, and enters on a new career. The old form receives a new content, and in time even the form modifies itself to fit the meaning which it has received." O. Holmes, The Common Law 8 (M. Howe ed. 1963).
* ↑ See 1 W. Blackstone, Commentaries *246 ("The king, moreover, is not only incapable of doing wrong, but even of thinking wrong; he can never mean to do an improper thing").
* ↑ In the first chapter of his classic History of England, published in 1849, Thomas Macaulay wrote:
* ↑ We noted in Hutto v. Finney, 437 U.S. 678, 692, n. 20, 98 S.Ct. 2565, 2574, n. 20, 57 L.Ed.2d 522 (1978):
* ↑ We explained that the legislative history evinced Congress' intent that attorney's fees be assessed against the State:
* ↑ The Court is surely incorrect to assert that a determination that a State is a person under § 1983 was unnecessary to our decisions awarding attorney's fees against a State or state agency. Ante, at 63, n. 4. If there was no basis for liability because the State or state agency was not a party under § 1983, it is difficult to see how there was a basis for imposition of fees.
* ↑ Indeed, we have never questioned that a State is a proper defendant in a § 1983 action when the State has consented to being joined in its own name in a suit in federal court, see Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978), or has been named as a defendant in an action in state court, see Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980); Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980).
* ↑ Cf. City of Kenosha v. Bruno, 412 U.S. 507, 513, 93 S.Ct. 2222, 2226, 37 L.Ed.2d 109 (1973) ("We find nothing in the legislative history discussed in Monroe [v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) ], or in the language actually used by Congress, to suggest that the generic word 'person' in § 1983 was intended to have a bifurcated application to municipal corporations depending on the nature of the relief sought against them").
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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