Warren E. Burger: We’ll hear arguments next in 72-914, Scheuer against Rhodes. Mr. Geltner, you may proceed whenever you’re ready.
Michael E. Geltner: Mr. Chief Justice and may it please the Court. This case is here on a writ of certiorari to the United States Court of Appeals for the Sixth Circuit. The plaintiffs’ decedent, Sandra Scheuer, was killed by a national guardsman’s bullet on Kent State University campus in 1970. Thereafter, the plaintiffs brought an action in federal court alleging a deprivation of civil rights under Section 1983, Section 1 of the Civil Rights Act of 1971, specifically detailing the alleged conduct and misconduct of the defendants charged. The defendants moved to dismiss on the ground that while the action was in form against the defendants individually, in fact, it affected the State of Ohio, therefore, it was a suit against the State of Ohio and barred by the Eleventh Amendment. Appeal was taken to the United States Court of Appeals for the Sixth Circuit and in a divided opinion, a panel of the circuit affirmed again on the Eleventh Amendment ground. Judge White, in writing his majority opinion, went beyond the Eleventh Amendment ground and concluded that he reached the same result under the Doctrine of Executive Immunity which he held covered the field in actions arising under the Civil Rights Act. So, we’re here without a record. We’re here with a complaint and motions, and here on a theory which is heretofore had not been applied to actions charging individuals with misconduct under the Civil Rights Act or against any other jurisdictional basis which would otherwise lodge jurisdiction in the court. As to the first issue, the Eleventh Amendment sovereign immunity issue so-called, the novelty to the issue is mentioned in my brief. It has been our position throughout the litigation that this ground was repudiated long ago, it’s inconsistent without basic notion of federalism. The Fourteenth Amendment can be made to co-exist with the Eleventh Amendment only insofar as the Doctrine of Ex parte Young is and remains viable and the Doctrine of Ex parte Young applies a fortiori in a case in which the plaintiffs seeks damages against an individual and charges the individual for misconduct.
William J. Brennan, Jr.: The petitioner here is an Ohio resident, is that right?
Michael E. Geltner: Yes, Your Honor.
William J. Brennan, Jr.: You make no point of the applicability of the Eleventh Amendment in the case?
Michael E. Geltner: I understand Your Honor’s dissenting opinion in the Employees of the Department of Mental Health in the State of Missouri versus the Department of Missouri. I certainly am willing to take advantage of that position. I don’t think it’s necessary to reach out for that proposition to decide this case on that issue. In point of fact, this Court has never suggested that an action against an individual, an individual who -- or here individuals, who are governmental officers, which doesn’t seek in any way to get at the state treasury or at public property, is an action which falls under the Eleventh Amendment. Therefore, I didn’t feel it was necessary to reach out for what you refer to in your opinion about it. The Missouri case, which is the most recent decision of the Court on point, it seems to me, pins down quite clearly that there has been no sentiment in this Court for the proposition that the Eleventh Amendment could conceivably reach the case such as this one. The majority opinion of Justice Douglas makes it quite clear that if the Congress, under Section 5 of the Fourteenth Amendment, were to attempt to lodge jurisdiction even against the state, if it were acting validly within a grant of legislative power, could do so. Justice Marshall’s opinion for -- himself and Justice Stewart specifically exempts actions against individual officers from the thrust of his opinion which is that the Eleventh Amendment is a jurisdictional limitation, in effect, a gloss on Article III. So that, it’s quite clear to me that what the Court of Appeals and what the District Court did was simply express its hostility to the plaintiffs’ view of the case by going out on a grant of decision which is totally unsupported by precedents of this Court, excuse me. So, we get to what I believe is the heart of the case and that is the question of whether or not an executive immunity, so-called or sometimes called a governmental or official immunity, attaches in suits arising under Section 1 of the Civil Rights Act of 1871, specifically whether or not a governmental official can say “I’m immune from suit” and, therefore, though the plaintiff has charged him specifically with a deprivation of a constitutionally protected right, nevertheless, because of one’s position, one may not be sued. The precise issue has not been adjudicated before in this Court. We have Barr versus Matteo which is a defamation case arising under the District of Columbia in which the Court framed what I view as a federal common law defense to a state tort action. Barr versus Matteo, for the reason summarized in our brief, does not really cover the ground here. We don’t have a libel action here. I express some doubt as to whether or not the same result would be reached in Barr versus Matteo on the basis of the law of defamation as it now stands after the Court’s opinions leading up to Rosenbloom, but I think it’s pretty clear that Barr versus Matteo does not cover this case. The only expression of judicial opinion in this Court of significance on the immunity question here is Justice Harlan’s concurring opinion in the Bevins case. If you may remember, the Bevins case presented both the question of whether or not there was a cause of action arising under the Fourth Amendment and, likewise, the question of whether or not defendants were immune from suit assuming there was a cause of action. Justice Brennan’s opinion for the majority did not reach that second question because the Court of Appeals had not reached it. Justice Harlan noted at the end of his long concurring opinion that it was not appropriate or necessary for him to decide the question, but he believed that it was appropriate to venture the opinion that, for the most flagrant examples of governmental abuse of power, there would certainly be a right to redress. That is essentially the basis of the claim asserted by these -- by the plaintiffs of this case. The issue has been spoken to by many Courts of Appeals. By and large, the Courts of Appeals have distinguished actions arising under the Civil Rights Act from state tort actions have noted, as did Justice Harlan, that a deprivation of a constitutional right is significantly more serious than a tort arising under state law. For that reason, they concluded that, irrespective of the state rule of immunity which might be applicable, it was clear to those courts that there was no such executive immunity under the Civil Rights Act. This conclusion, it seems to me, is the appropriate one. It certainly fits the intention of the Congress. The Congress of 1871 perceived the problem before as essentially a problem of violence and saw the problem that was sought to be raised by both Sections 1 and Sections 2 of that Act as governmental and non-governmental violence. The non-governmental violence being essentially covered by Section 2 of the Act which is presently Section 1985, and the governmental violence being covered primarily by Section 1 of the Act, that is, this is an appropriate case fitting within the precise legislative intention of the Congress. The Congress’ intention was recently summarized for the Court in Justice Brennan’s opinion in District of Columbia versus Carter. It certainly supports that conclusion that that is what Congress is concerned with.
Warren E. Burger: You haven’t mentioned Moyer against Peabody or cited it in your brief. I take it, you think that there’s not much left of that.
Michael E. Geltner: We discuss Moyer versus Peabody at some length in our brief.
Warren E. Burger: In your reply?
Michael E. Geltner: Moyer versus -- Excuse me, Your Honor?
Warren E. Burger: It must be in your reply brief.
Michael E. Geltner: No, it is discussed, I believe --
Warren E. Burger: Well, don’t trouble yourself now.
Michael E. Geltner: In the main brief.
Warren E. Burger: I couldn’t find it in your Index.
Michael E. Geltner: There are two relatively long briefs. There’s a main brief and a reply brief. We see Moyer versus Peabody, first of all, as being substantially limited by the Court’s opinion in Sterling versus Constantin. Secondly, to the extent that Moyer versus Peabody makes an expression that the government of the state can do whatever the governor of the state believes is appropriate to do, it is both overruled by Sterling versus Constantin and, furthermore, fundamentally inconsistent with the thrust of this Court’s decision preceding it as specifically inconsistent with Ex parte Milligan which was decided the year Congress passed the statute. The sole question that seems, as to the legislative intention, is what that Congress intended. It’s inconceivable that that Congress with its view point could have intended an immunity of this kind for a state governor in view of the fact that state law enforcement was primarily what the Congress was attempting to reach with both Section 1 and Section 2. And so, we get to the prevailing history and it is pretty clear that, unlike the legislative history -- legislative immunity which was recognized in 1871 both by the federal constitution and by parallel state constitutions, and unlike the Law Extending Doctrine of judicial immunity, there is no substantial support for the view of executive immunity at the time that this Congress acted. Congress simply must have seen it as an appropriate purpose to reach governmental misuse of force and there is no basis to believe from the debates that Congress intended to carve out any individuals as immune from the reach of its legislative power. Now --
Thurgood Marshall: In one of those three cases, Strutter, one of them -- wasn’t that a judge involved in that case, wasn’t it Ex parte of Strutter or --
Michael E. Geltner: Ex parte Virginia.
Thurgood Marshall: Was it one of them?
Michael E. Geltner: Yes, Your Honor, Ex parte Virginia.
Thurgood Marshall: Yes, the judge was involved.
Michael E. Geltner: Well, we distinguish clearly judicial immunity here from executive immunity. As I mentioned in my brief, the legislative history to my mind does not even support judicial immunity. I reckon that we’ve got Pierson in this Court and Bradley versus Fisher at that time to cope with, this is clearly a different issue. Now, it is in fact true that many states now have a Doctrine of Executive Immunity for state torts and similar actions. It’s likewise true that this court has recognized such an immunity in Barr versus Matteo with respect to a parallel issue, namely state libel actions, involving federal officials. They don’t cover this issue and secondly, to the extent that there is an implication in any of these opinions that it is appropriate to distinguish for immunity purposes between ministerial officials and so-called officials exercising discretionary functions, we believe that any such distinction is basically inconsistent with the purpose of the Civil Rights Act and inconsistent with logic. There is, for example, in the remand opinion of the Second Circuit in the Bevins case an suggestion that while the particular parties before the Court, they are Federal Narcotics Bureau Agents, were not immune, possibly the Director of the Federal Narcotics Bureau or somebody else who made basically discretionary decisions would be immune from suit. Now, the distinction has never been applied in Civil Rights Act cases. In tort cases, the distinction has always been a distinction based upon the immunability of lower level officials to mandamus where there is a positive declaration by law that they must do an act. So, for example, a court clerk might be subject to mandamus to compel the court clerk to give a copy of the document to somebody. Similarly, those courts have said where refusal to engage in an act, which could be compelled to a mandamus, could be a basis for liability. But those courts have also said a discretionary act, that is one not subject to mandamus, might be immune from suit. Now, to hold that as to the Civil Rights Act seems anomalous. We might, for example, have a situation in which a senior police official orders a policeman to engage in an unconstitutional act and the situation in which the person who commits the act, who had no basic decision making power, is left holding the bag while the officer who made the decision to engage in the constitutional deprivation is, in fact, immune. That seems senseless in view of the fact that it was clearly the purpose of the Congress to reach both. In addition, there doesn’t seem any sensible basis to close the doors of the court with respect to that sort of act. The distinction between ministerial and discretionary acts, when one clearly looks at it, breaks down. In fact, at all levels of government, at least when we’re dealing with the question of use of governmental force, discretion is exercised, so that at both levels, the concept of a ministerial discretionary distinction breaks down as being basically inconsistent with the policies sought to be served, excuse me, by the Congress. So, what we’re left with then is the bare claim that if officials are subject to suit, it will be troublesome for them. They are too important to be called into court. They’ll have to spend time. They’ll have to spend money. They might be intimidated. Now, it seems to me that where the Congress has declared a specific policy, the purpose of which is to prevent certain kinds of wrong, it is precisely then that the intimidation should attach. And, in fact, the threat of liability is the way in which the Congress attempted to achieve its result in 1871, preventing the misuse of governmental force on individuals. Your Honor, I requested that I reserve 10 minutes, and I believe my 20 minutes is up, so that if there are no further questions now, I’d like to reserve rebuttal time.
Warren E. Burger: Very well, Mr. Geltner. Mr. Brown.
Charles E. Brown: Mr. Chief Justice and may it please the Court. The issues in this case are such as they go to very heart of federalism. They go to the very delicate balance between our form of government, and the issue is can Federal Courts control the administration of state law? I respectfully disagree with Mr. Governor as to the issue of jurisdiction. In our judgment, that is a very important issue in this case.
Potter Stewart: That is the Eleventh Amendment issue?
Charles E. Brown: Yes, Your Honor. The court below, that is the District Court, at the time we filed our motion to dismiss under the Eleventh Amendment and as this Court well knows, the Eleventh Amendment applies not only to suits by the citizens of one state against another state, but the citizens of a state against its own state which is the case here at bar. At the time we filed our motion to dismiss, there was pending before the District Judge an affidavit of General del Corso that he was not at the scene, an affidavit from General Canterbury that he gave no order for anyone to fire, and there was the Executive Proclamation of Governor Rhodes that a riotous condition, insurrection, if you will, existed in the city in county -- city of state and the Kent State University Area. Pursuant to that, the National Guard was called out. Now at this point, under Ohio statutes, the members of the Ohio National Guard had no choice. They, of course, had to go. They were ordered to go. It is important to note, and I would like to point out to the Court that, before this Court today, we do not have the issue of the Ohio National Guard. There are seven named defendants, and those are the only people before the court today and not the entire Ohio National Guard. Now under the Eleventh Amendment, 12 (b) (1) motion to dismiss which goes to the question of jurisdiction, and of course as this Court well knows the 12 (b) (6) motion goes with the question of whether a cause of action is stated. The Court has consistently held that to determine whether or not a suit is in fact against the state, you look behind the nominal parties defendant named and look at what is the essential nature and effect of the lawsuit. Now, this test was first set out by the -- was set out by this Court in the Ford case. Dugan versus Rank, which is a 1963 decision from this Court, defines when a state is affected. And if a state is in fact affected, then you look behind the nominal parties defendant and determine that it is a state against the -- a suit against the sub. And in Dugan versus Rank this Court stated, if the judgment sought would expend itself on the public treasury or domain or interfere with the public administration or in the -- if the effect of the judgment would be to restrain the government from acting or to compel it to act, then the act is considered as to be one against the state. Now, we submit here that the seven named defendants are nominal parties only and that this action is in fact one against the State of Ohio. Now, the case of Barr --
Byron R. White: Any more so though than Sterling in the Sterling case?
Charles E. Brown: The Sterling case is distinguishable. That is an injunction action, Your Honor, to enforce an unconstitutional statute. Now, we don’t have that situation here.
William J. Brennan, Jr.: I know, but the claim was that -- the claim, at the outset, was that the court had no jurisdiction to entertain the suit. And, this Court ruled that Federal Courts have a jurisdiction to entertain the suit. There was no bar. The suit against the government was not a suit against --
Charles E. Brown: Well, Your Honor, I respectfully disagree with you. I don’t believe the Court said that. I think what the Court said, because you have an unconstitutional statute, you don’t have the state acting, therefore, it isn’t the state acting. The state cannot enforce an unconstitutional statute. Now, as I read the decision, I think that’ what you said.
Byron R. White: As long as you think that the Federal Court in this case would have jurisdiction if there has been indication that the defendant's violated constitutional rights.
Charles E. Brown: No, if we were acting under unconstitutional statute, Your Honor. There is a difference, if I may say, between stating a cause of action and jurisdiction. I’m not too stating the cause of action.
Byron R. White: That’s the distinction you assert?
Charles E. Brown: Yes, sir. There is a definite distinction in my opinion. And, I’m saying here that if the seven named defendants were acting under a constitutional warrant at the time and there is no allegation or challenge to the contrary by the petitioners and if they were acting within the delegation of that statutory warrant, then they are agents of the sovereign and the action may not be maintained. There is no jurisdiction. And as I pointed out a moment ago, Your Honor, I would get to the cause of action discussion later as it relates to the Doctrine of Executive Immunity. But this Court in Barr, in quoting from Gregoire, adopted his -- Judge Hand’s reasoning and logic to the effect that if actions are permitted to be maintained against state officials, then you will have times when a state official will abuse his power. There will go un-redressed some wrongs, but you must weigh the equities which is more important. This is a pragmatic, a public policy argument, if you will. And for example, to illustrate that point, as Mr. Chief Justice mentioned a moment ago, in Moyer versus Martin we have the question of calling out the National Guard. Justice Holmes wrote the decision in that case. This Court held that the calling out of the National Guard was not reviewable and Justice Holmes stated “as no one would deny that there was immunity for ordering a company fire on a mob in insurrection and that a state law authorizing the governor to deprive citizens of life under such circumstances was consistent with the Fourteenth Amendment. We are of the opinion that the same is true of a law authorizing by implication what was done in this case.” And in that particular case, perhaps a man was unconstitutionally deprived of his liberty. He was put in jail for, I think, two-and-a half months, but this Court held that the discretion of the Executive Branch of a state government in calling out the National Guard is his discretion.
Potter Stewart: But that wasn’t an Eleventh Amendment case, was it?
Charles E. Brown: No, it was not, Your Honor. That was --
Potter Stewart: I thought we were talking about the Eleventh Amendment or you’ve moved on to --
Charles E. Brown: Alright. Now, the petitioners on the Eleventh Amendment argument rely on Sterling, Ex parte Young, those kinds of cases, all of which are distinguishable in our opinion because we’re talking about unconstitutional statutes. And in Sterling, before the governor called out the guard, the Federal Court had already enjoined the matter. So, he was flying right in the face of an order of a Federal Court at that time. The Larson case applied the Eleventh Amendment immunity. The agents of the sovereign were immune even if their actions at the time were ultra virus.
Warren E. Burger: I think we will pick up at that point after lunch, Mr. Brown. [Luncheon Recess] Mr. Brown, you may proceed whenever you’re ready.
Charles E. Brown: Mr. Chief Justice and may it please the Court. In going further on my jurisdictional argument as to whether the court below under Rule 12 (b) (1) had jurisdiction, I would like to point out that, contrary to what my imminent opponent stated. Sterling versus Constantin did not in fact overruled Moyer, It cited it with approval and stated they were dealing with a different situation there, taking of property. Moving on now to the effect test, that is if the nature of the lawsuit even though naming nominal parties as defendant in fact affects state government, then it is an action against the state. And this Court in Dugan versus Rank, which is a 1963 decision, stated the test. The general rule is that if suit is against the sovereign, if the judgment sought would expend itself on the public treasury, domain, or interfere with the administration of justice, if the effect of the judgment would be to restrain government from acting or to compel it to act. Now, that is exactly what we’re talking about here. Granted, the Dugan case is a federal government case. But which is more important, the constitutionally granted rights to the states, that is, the Eleventh Amendment, or the common law interpretation of the immunity of a federal government? Along that same line, as this Court well knows in Barr versus Matteo, they quoted, with approval, Judge Learned Hand in Gregoire versus Biddle and I’d like to quote a part of Judge Hand’s opinion. “Again and again, the public interest calls for action which may turn out to be found on a mistake, in the face of which, an official may later find himself hard put to satisfy a jury of his good faith, the answer must be found in a balance between the evils inevitable in either alternative.” In this instance, it has been thought in the end better to leave un-redressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation. I submit to the Court that that is exactly a situation with which we are here confronted. What would be the effect on state officials in every state of the Union if Federal Court would be granted jurisdiction in this kind of a situation? Any vituperative, vindictive, plaintiff wanting to vent his spleen on a state official could file a lawsuit. You could literally tie up state governments, just mimeograph thousands of lawsuits against all kinds of people and tie up state government. That is exactly how it could be affected.
Harry A. Blackmun: Judge Hand’s comment in the Gregoire case was not in the context of 1983?
Charles E. Brown: No, Your Honor, it was not, but the same reasoning would apply, it seems to me.
Harry A. Blackmun: And that is also true of Barr against Matteo?
Charles E. Brown: Yes, sir. That is true, yes sir. Let’s just take a specific example of a national guardsman in any state in the Union called to act of duty, to quell riot, insurrection, what have you? If he knew that in the performance of his duties as he was commanded to do by the Governor of the State of Ohio and his commanding officers that he could be sued, would he diligently carry out his duties? This is a very pragmatic policy consideration. Should officials, all state officials, be free to carryout their duties unhindered and unhampered or should they live in constant fear of being sued? We feel, as did Judge Hand, that they must be free to carryout their duties. Now clearly, does that leave people without a remedy? If you have a dishonest official or somebody acting vindictively? It does not because they are still subject to the electoral process and they can be recalled from office. In conclusion, therefore, on the 12 (b) (1) motion on jurisdiction, we clearly feel the courts below were correct in their interpretation of that matter and the Eleventh Amendment. And further, that the only material before the court when considering a motion were affidavits which I’ve previously mentioned, which incidentally were in the Krause case and not the Missouri case but they’re, in effect, companion cases and the court also took judicial notice of the facts as they existed at Kent State on this tragic day. And I’m sure this Court is well aware of Judge O’Connor’s concurring opinion in that regard in the Sixth Circuit. Going on now to the question of sovereign immunity; first of all 1983 says, as this Court well knows, all persons who violates someone’s rights are subject to suit, etcetera. And yet, this Court has held in Pierson versus Ray, a 1969 decision, that judges acting within their scope as judges are immune under 1983 for acts within their discretion. In the Tenney case, which is a 1950 case, this very Court held legislators immune while doing things within their discretion. Now, it seems to me in Congress, that the people that passed the laws and the people that interpret the laws have immunity. When the very person designated by the Constitution of the United States and the constitutions of the respective states would not have immunity to carryout the very laws that the legislature imposes and the judiciary interprets. I would respectfully submit that petitioners are in error when they state that executive immunity was unknown prior to 1871 enactment of 1983, and we cite in our brief two cases, both preceding 1983: General versus Stokes and Wilks versus Demson, an 1845 case and an 1849 case. So, executive immunity did, in fact, exist. And another point I think worthy of comment; our laws as traditionally were adopted in this country were a carryover, of course, from the common law of England which has known immunity for some period of time. Do we have executive immunity now? In our judgment, the answer is clearly yes. Barr versus Matteo which it, once again, quotes Gregoire versus Biddle and as I’ve previously stated, Moyer versus Peabody, Holmes -- the Court there held that, certainly, the discretionary act of the governor in calling out the guard was within his power and right. Now, we go on to the diversity matters in applying the wrongful death diversity --
Byron R. White: Could I inquire for a moment. Let’s assume it is alleged that the state officials, this is with respect to immunity, it is alleged that the state officials acted deliberately and knowingly to violate a constitutional right in the sense that they intended to deprive somebody of his constitutional rights. And let’s assume that it’s proved and everybody concedes that they knew they were and they did it deliberately. Would you still insist on immunity?
Charles E. Brown: Probably not if they could prove all of the things which Your Honor has in fact stated.
Byron R. White: Well, would say you would submit that kind of -- those kinds of allegations is to proof?
Charles E. Brown: Not the allegations, Your Honor. A court is bound to determine the facts in the first instance as it really exists, as they truly exist and the court may do whatever it wants in that regard.
Byron R. White: Would you permit a court to see if the plaintiff could prove those kinds of allegations against the state official?
Charles E. Brown: Not normally, Your Honor, unless there were some evidence before the court, concrete evidence other than sheer allegations and sheer conclusions of law and unwarranted deductions of fact, not unless there was something.
Byron R. White: Well, I know but here’s the -- how -- here’s the complaint, let’s assume, that says that the official has deliberately and knowingly deprived the person, and intentionally deprived the person of his constitutional rights. That’s the allegation, they want an opportunity to prove it. Now, would your claim of immunity stops that suit in its tracks before it ever got started.
Charles E. Brown: If in fact that was true, Your Honor, no.
Byron R. White: Well --
Charles E. Brown: But --
Byron R. White: I’d say all you have is the allegation and the complaint.
Charles E. Brown: I would say that standing alone is insufficient, yes sir.
Byron R. White: Well, then you would say dismiss the case without any opportunity to prove it.
Charles E. Brown: Depending on the facts as they really existed, if I were the Federal Court --
Byron R. White: Well, how do you know what facts existed?
Charles E. Brown: Well, because some well pleaded facts, I think, the Court should take in.
Byron R. White: Well, let’s assume that they are well pleaded facts?
Charles E. Brown: On that mere allegation, I would dismiss the complaint with nothing further before me, yes.
Byron R. White: So you would say that the -- you would insist on immunity even though it is alleged and somebody stands ready to prove --
Charles E. Brown: If there is more than the sheer allegation standing alone, Your Honor, this is the distinction I’m attempting to make. The court may call a preliminary hearing and look into the facts. Now, I’m saying it would be a rare instance when they do that.
Byron R. White: Your immunity claim would not stop that claim?
Charles E. Brown: No. Well, for example, let’s take a gross situation where, let’s say, two highway patrolmen stop a drunk driver, summarily trying and shooting. Certainly, I’m not claiming in that situation that you would have immunity. I’m not.
Harry A. Blackmun: Here, you are, in effect, reading the allegations of bad faith out of the complaint?
Charles E. Brown: I’m saying the court below properly looked into the facts as they existed, that is what I’m saying, Your Honor, yes and, I would point out that the petitions did not even ask for preliminary hearing. The only evidence before the court were the facts that we have before plus the judicial notice of the facts as they took the petition.
Byron R. White: You wouldn’t -- I don’t suppose you would suggest that the state officials would be immune from criminal prosecution under a federal criminal law?
Charles E. Brown: I would not, Your Honor. I would not say that.
Byron R. White: What about 242 that speaks about conspiracy to deprive people of their constitutional rights?
Charles E. Brown: Are you talking about a criminal prosecution now?
Byron R. White: Yes.
Charles E. Brown: I would say they would not be immune for criminal prosecution.
Byron R. White: And if the law -- if the same allegations were made in the civil suit, that would have to be proved to prove a criminal violation?
Charles E. Brown: Yes.
Byron R. White: Would you say that the immunity would apply there?
Charles E. Brown: To a criminal situation?
Byron R. White: In the civil suit.
Charles E. Brown: In a civil suit? Just because it was a criminal act?
Byron R. White: No, just because the very same allegations in the civil action are made that the state would have to prove in the criminal case or if the government would have to prove in a criminal case to succeed. Do you say that criminal -- there would be no immunity in the criminal suit, but there would be in the civil suit?
Charles E. Brown: That’s right, Your Honor. That’s the position I take.
Thurgood Marshall: That would apply to the federal statute?
Charles E. Brown: Yes, sir, in my opinion.
Thurgood Marshall: They both were enacted at the same time, weren’t they?
Charles E. Brown: I believe they were. I am not positive.
Thurgood Marshall: How did -- well, what justification do you have for taking the criminal and not the civil?
Charles E. Brown: Pragmatic public policy considerations have public officials carry out their duties unfettered for fear of a bunch of lawsuits. Now, criminal --
Thurgood Marshall: Then you’re telling me that Congress meant to apply this criminally, but not civilly, is that what you’re saying?
Charles E. Brown: Well, there are two different statutes you’re talking about, Your Honor --
Thurgood Marshall: They were passed in the same --
Charles E. Brown: To assess in the same statutes --
Thurgood Marshall: They were passed in the same batch is passed.
Charles E. Brown: Well, Your Honor, of course we --
Thurgood Marshall: Are you telling me that Congress said that you are criminally liable, but not civilly liable?
Charles E. Brown: Yes, sir, that is exactly what I’m saying.
Thurgood Marshall: And what in the world do you have to back that up?
Warren E. Burger: I suppose one difference would be that anyone can start any kind of a frivolous lawsuit to get an indictment, you’ve got to go through a grand jury. One of the historic purposes of a grand jury was to be a buffer against frivolous irresponsible charges, is that not so?
Charles E. Brown: Yes, Your Honor.
Thurgood Marshall: Is that in the debate? Of course, it’s not.
Charles E. Brown: No, sir, and neither the judicial immunity in the debate, Your Honor, or legislative immunity. This is court interpretation.
Thurgood Marshall: Well, you have now interpreting this statute, the 1871 statute?
Charles E. Brown: I’m asking that this court is going to interpret it and it has in the past, Your Honor, absolutely and they have abided --
Thurgood Marshall: You want us --
Charles E. Brown: -- in certain situations.
Thurgood Marshall: You want us to say that this man can go to jail, but he can’t be subject to an injunction?
Charles E. Brown: We’re talking about damages in this action, Your Honor, and I am saying --
Thurgood Marshall: Either way --
Charles E. Brown: I am saying exactly that.
Thurgood Marshall: Well, are you saying he can go to jail for five years, but he can’t be sued for $2 damages?
Charles E. Brown: Yes, sir, Your Honor, I am saying that loud and clear, not based upon --
Thurgood Marshall: You are?
Charles E. Brown: Yes, sir.[Laughter] -- not based upon unwarranted conclusions of law and unwarranted deductions of fact, I am saying that. Briefly, Your Honor, my time is running out, on the diversity issue, there, we clearly apply the law of the form of Erie versus Tompkins, and there is a long line of Ohio cases cited in our brief dealing with both the question of executive immunity -- with the question of executive immunity and with officials of state government in doing their discretionary acts. Moving on briefly to the issue of justiciability, whether or not the training and weaponry of the Ohio National Guard is a justiciable matter which this Court should consider, this Court set forth the guidelines in Baker versus Carr’s six elements. This case, we feel, clearly falls into those. This Court recently heard the case of Gilligan versus Morgan involving the very issue of whether or not this was a justiciable question or a political question. They decided that it was not, that the judiciary should not get involved in these matters, and we feel that was a proper decision. I see no distinction to be made between an injunction, which was the Gilligan case, and an ex post facto damage action which is what we have here. Finally, Your Honors, if the political question is overruled, the federal government who sets up the standards for training the National Guard and who -- and Congress who is given the responsibility under the constitution, the federal government certainly would be an indispensible party in that regard. In conclusion, therefore, we feel that the court below considering Rule 12 (b) (1), Rule 12 (b) (6), properly applying those rules to the issues of jurisdiction and executive immunity properly dismissed the petitioners’ complaints. If the court has no further questions.
Harry A. Blackmun: Mr. Brown, I suppose your position does undercut, somewhat anyway, Section 1983, doesn’t it, to the extent you’re asking for --
Charles E. Brown: Sir, in response to that, I would say this Court has applied 1983 to two classic cases: Burnbam case and Ex parte Virginia, both involving civil rights violations; one involving a Jewish gentleman and the other one involving a judge who refused to let Black people sit on his jury. Clearly, those are classic situations for the application of 1983, but extending it to abolish executive immunity, it seems to me, is not proper.
Warren E. Burger: Moyer against Peabody was under the Civil Rights Act, was it not?
Charles E. Brown: This was the Governor of Colorado calling out the National Guard, that was before the Civil Rights -- no, it wasn’t, Your Honor.
Warren E. Burger: No.
Charles E. Brown: That was after -- It was 1980. That was the Governor of Colorado calling out the National Guard, and this man was imprisoned for two-and-a half months and he sued for false imprisonment. And, the court said -- the court could not question the governor calling out the National Guard. And, that’s where Holmes said no one would doubt that a guard would have the right to fire into a mob at a time of insurrection.
Harry A. Blackmun: You’re not suggesting that Ex parte Young is wrong or should be overruled?
Charles E. Brown: It should be distinguished, Your Honor, that was an injunction action, clearly distinguishable.
Harry A. Blackmun: That’s your own distinction of it?
Charles E. Brown: Yes, sir.
Harry A. Blackmun: And it has to be, I guess.
Charles E. Brown: Right, and are also involved an unconstitutional statute.
Potter Stewart: Well, how -- you say then that there is not immunity if it’s an injunction, an action for an injunction, is that right?
Charles E. Brown: No, it depends --
Potter Stewart: An immunity only exists -- the immunity exists only when the action is for money damages?
Charles E. Brown: No, if you’re talking about an unconstitutional statute, these cases, the whole of the immunity does not exist. You’re either talking about an unconstitutional statute or the officer acting outside the statutory warrant. Now, those are two instances in all of the cases attempted to be distinguished by eminent opposition here. We don’t have that in this case, and it is unchallenged that there was authorized statute and we were acting with that. That’s --
Potter Stewart: The distinction that my brother Blackmun asked you about is not the distinction you make. It’s not as between an injunction and the damages?
Charles E. Brown: It depends on what the injunction relief seeks, Your Honor. I could not make the complete bold statement that every injunction action would be defeated. Now, it would not be defeated. It would’ve been obviously up on what was attempted to be enjoined. But, every case relied upon by the petitioners, Your Honor, we feel is readily distinguished.
Warren E. Burger: The Sterling case would be an example of that.
Charles E. Brown: Yes, Your Honor.
Warren E. Burger: It protects this case where the injunction suit was brought to prevent the enforcement of a statute that had previously been if, as I recall it --
Charles E. Brown: Yes, sir.
Warren E. Burger: -- previously declared unconstitutional. The governor was applying and notwithstanding the court's --
Charles E. Brown: He was ignoring the Federal Court, Your Honor, pure and simple.
Thurgood Marshall: Barr and Matteo wouldn’t bar an injunction?
Charles E. Brown: Pardon me?
Thurgood Marshall: Barr and Matteo would not bar the injunction action?
Charles E. Brown: In what regard, Your Honor?
Thurgood Marshall: As here.
Charles E. Brown: As here?
Thurgood Marshall: Yes.
Charles E. Brown: Well, the holding in Barr -- I’m not really sure I follow, Your Honor, an injunction action as to prohibit what?
Thurgood Marshall: Action of an executive officer of a state?
Charles E. Brown: It would enjoin him, in my opinion, if he were attempting to enforce an unconstitutional statute or acting in an area of ultra virus, yes. I’m outside the statutory warrant.
Thurgood Marshall: Well, then why wouldn’t it be a flood of lawsuits, the same floods you’re talking about?
Charles E. Brown: Because we’re talking about different things. You’re talking about, in one instance, unconstitutional statutes and people acting clearly outside the authority.
Thurgood Marshall: Well, you said if there is a possibility of an action for damages, there will be a flood of lawsuits. You now say there’s a possibility of an action for injunction. My question is why wouldn’t it be just as much of a flood of lawsuits?
Charles E. Brown: We are talking about executive immunity, whether it exists as to damages or injunction, Your Honor. And I’m saying that if the elected public officials of this country cannot constitutionally carryout their duties under their proper statutory warrants, there will be a flood of lawsuits. Now, if they’re acting outside of either of those two and if they do something wrong, clearly they are subject to lawsuit -- an injunction.
Thurgood Marshall: Some of these are not elected officials?
Charles E. Brown: No, many of them, most of them. The best majority are appointed, but they still fall within the Executive Branch of the government.
Warren E. Burger: It appears on an examination of Moyer against Peabody that that was brought under 1983 in the Federal Court by the gentleman who was imprisoned for two or three months. So, there was the same kind of an action as we have here. I guess there are no further questions. Thank you, Mr. Brown.
Charles E. Brown: Thank you very much, Your Honor.
Warren E. Burger: Mr. Geltner.
William J. Brennan, Jr.: Do you agree that Moyer was an old 1979 before 1983, right?
Michael E. Geltner: Yes, Moyer was and, Your Honor, if I could mention, the thing about Moyer is, Moyer was a case in which the Governor of Colorado concluded that there was an insurrection. As a consequence of his conclusion that there was an insurrection, he imprisoned the plaintiff and the plaintiff later brought an action charging a deprivation of the constitutional right. Now, the thing about Moyer is Moyer holds that the governor’s decision of insurrection is unreviewable. That part of Moyer is clearly overruled by Sterling versus Constantin. The dictum in Justice Holmes’ opinion in Moyer to the effect that the governor could do more than imprison, it seems to me, is completely out of consonance with our traditions. The concept is basically that in an insurrection, which we did not have here, in an insurrection the governor could do whatever he pleases to put down the insurrection. In fact, in Ex parte Milligan, the Court held that there was only one thing that an insurrection or rebellion change, and that was he permitted the writ of habeas corpus to be suspended during the continuation of the insurrection. We don’t have either of those issues here. We don’t have an insurrection. We don’t have here the question of whether or not the writ was properly suspended.
Byron R. White: It seems to me that that was sort of whether or not a compliant would state a cause of action --
Michael E. Geltner: Yes, Your Honor.
Byron R. White: -- rather than immunity.
Michael E. Geltner: Absolutely, Your Honor.
William J. Brennan, Jr.: And, wasn’t there immunity talk in Moyer?
Michael E. Geltner: I view that talk as being basically connected with the Court’s decision on the cause of action. That is all that I see there and I think that the opinion bears it out.
Warren E. Burger: Do you think the expressions that the action of the Governor in Colorado calling out the guard was an unreviewable action. That was dictum by Justice Holmes?
Michael E. Geltner: No, I think that was the holding of the case. I think that --
Warren E. Burger: Well, it’s in the case, isn’t it?
Michael E. Geltner: That aspect of the case was specifically overruled by Chief Justice Hughes’ opinion in Sterling versus Constantin, the specific holding of the un-reviewability of the determination of the existence of insurrection and so what we’re left with as to Moyer is the dictum that Justice Holmes issued.
Byron R. White: With respect to immunity?
Michael E. Geltner: Yes, sir. Well, with respect -- I read that dictum as being related to the power of the governor to do whatever the governor feels necessary.
Byron R. White: If that’s the way you read it, the case has nothing to do with immunity?
Michael E. Geltner: Yes, Your Honor. That’s exactly what I read.
William J. Brennan, Jr.: So it doesn’t make any difference what Constantin did to it?
Michael E. Geltner: Yes, Your Honor. I read it that way. I read the case -- I read both cases as having no bearing on immunity, but having bearing on the cause of action.
Lewis F. Powell, Jr.: Mr. Geltner, is it essential to your position that bad faith be proved?
Michael E. Geltner: No, Your Honor.
Lewis F. Powell, Jr.: Well, what would have to be proved?
Michael E. Geltner: Our position is we rely for a substantive theory. Again, going to the cause of action rather than immunity issue, we rely on Monroe versus Pape and the few expressions in dictum in this court’s opinions in D.C. versus Carter and in Moore versus Alameda County. Specific intention to cause injury or deprive one of the constitutional right is a prerequisite to establishing criminal liability under Section 18 US Code, Section 241 which is the criminal analogue of Section 1983. In Monroe, the Court specifically dealt with the distinction on how that specific intention is not necessary, rather, Section 1983 was to be interpreted in line with the intention of Congress to reach governmental misuse of force and with the preexisting body of tort law which founded liability on fault. So that, the only question that relates to the viability of the cause of action is whether or not we have alleged and proved fault on the part of the individual defendants which fault lead to the deprivation of a constitutional right, in this case, the right not to kill.
Lewis F. Powell, Jr.: You’re using fault in same sense as the word “negligence” is used?
Michael E. Geltner: I’m using fault in the sense of either wrongful intention, recklessness, wanton and willful misconduct, or negligence.
Lewis F. Powell, Jr.: Mere negligence?
Michael E. Geltner: Mere negligence. Now, as to mere negligence, this Court has not passed directly on that issue. The weight of authority in the Circuit Courts is that mere negligence when tied to a deprivation of a constitutional right, for example negligence leading to a misuse of weapons by governmental troops, states a claim under Section 1983. And, in my brief, I’ve cited the case on which you rely for that proposition. I believe Monroe versus Walter (ph).
Lewis F. Powell, Jr.: I was going to ask whether you read Judge Seligricci’s (ph) dissent that way?
Michael E. Geltner: Well, there again, Judge Seligricci's dissent didn’t have to reach out to the question of the cause of action. We have alleged, and I believe we can prove, although we have no record before us, that what we allege. We have alleged intentional conduct. We’ve alleged recklessness and, we’ve alleged wanton and willful misconduct. We believe that this point is not incumbent in us to prove it. We can’t prove that before this Court.
Warren E. Burger: Would you consider it a showing of negligence meeting the standards you have just suggested if the evidence was that the governor had signed the proclamation for calling out the guards or signing the order on the basis of newspaper accounts as to what was happening down in some southern county in the state?
Michael E. Geltner: Your Honor, we are not claiming the liability of the governor flows from the fact that the government called out the guard, that is not the basis for liability in this case. We have alleged with great specificity what we rely on. We rely on orders. We rely on the rules of engagement which existed at the time in the Ohio National Guard which the governor knew about, specifically the orders to carry loaded weapons, the orders to march head on with bayonets out into a crowd. These are matters of record as a consequence of Gilligan versus Morgan and, we rely on them. We do not rely on the mere act of calling out the guard.
Warren E. Burger: You agree with Justice -- I don’t remember whether it was Justice Marshall or Justice Powell, it seems to me, you indicated that negligence in traditional sense would be enough to support liability of the governor, and I thought you had indicated negligence in calling out the guard would be one of those areas.
Michael E. Geltner: I didn’t mean to say that. We’re not claiming negligence in calling out the guard. We’re claiming negligence in the way in which the guard is supervised, in the way in which the governor acts himself, at the scene. Those are the things that we’re relying upon. We don’t have to reach out for the question of whether or not the guard was negligently called out here. Now, Your Honors --
William H. Rehnquist: Mr. Geltner, what constitutional right is it that you clam your client was deprived of?
Michael E. Geltner: Now, we are claiming that the constitution protects one from being killed or injured by the use of governmental force without due process of law and by due process of law, we simply mean a hearing. The government to the extent that the governments can injure one or can kill one, it can only do so insofar as it acts legitimately in defense of appropriate interests or it does so through the criminal process. Now, we rely --
William H. Rehnquist: Do you rely on any of our cases?
Michael E. Geltner: We rely primarily on the Screws case. I rely very heavily on the legislative history. This is precisely what the 1871 Congress was concerned with. The Civil Rights Act has reached out to cover many areas. The core of the Congress is concerned with killings and beatings. We rely on Screws which holds that specifically. I rely on the dictum in District of Columbia versus Carter and we rely on a long line of Circuit Court opinions which reached the conclusion that the use of governmental force outside of the criminal process is a violation of a deprivation of due process. The latest opinion which is cited in our reply brief, which explores the area most carefully, is Chief Judge Friendly’s opinion in Johnson versus Glick. We rely on that case and the cases it cites. Now if could, we have heard a lot in this case about the facts. It has been my feeling all along, as expressed by the opinion of the courts below, that somehow they read the newspapers and took judicial notice of the conclusion that everything the guard did was proper and that there was an insurrection or something close to it. The fact of the matter is there are no affidavits in this case. There are no such facts. The affidavits were filed in the Krauss case. These cases have not been consolidated. But, in either case, what we have here is a complaint that they’re more than complaints and the newspapers and the opinions that the judges garnished from the newspapers below don’t seem to be to have any bearing on the way in which the precise legal issues ought to be decided here to the extent that there is any documents in existence which has any bearing on the facts of the case. It is the Stratton Commission Report which is not in the record, it is the only doctrine of which, under the rules of evidence, the Court at this point should take judicial notice. I did not propose the Stratton Commission Report as a finding effect. If this -- but, if the Court feels some necessity to go beyond the pleadings, that is the only finding of the governmental agency which has dealt with the subject matter. Now, there -- we’ve been hearing throughout the case the view that this immunity is necessary because, in the absence of immunity, the court’s opinion flooded with complaints These complaints are all going to be frivolous and as a result of only these frivolous complaints, the government is going to stop. People are just going to stop acting. It is not a description of this case. A member of the Bar of the Federal District Court should not be presumed to be filing frivolous paper. He signs, Rule 11 requires the complaint to be signed. He’s subject to disbarment for filing frivolous complaints. And finally, the argument, when you analyze it, supposedly comes down to the old argument that if you permit this kind of suit, the courts are going to be flooded. That is precisely the argument that was made in the Bevins case.
Warren E. Burger: I didn’t understand Mr. Brown to be worried about the courts. I understood him to be concerned about the governors or mayors or individuals, including judges, who would have to take time off from, among other things, from their duties to defend the suit and be in state of apprehension as they approached the decisional process.
Michael E. Geltner: I understand the distinction, but underlying it is the view that the courts will be flooded by complaints of this kind, which, flooding will then result in lawsuit judicial time, lawsuit attorney’s time, lawsuit official time and intimidation. In substance it's the same argument that was made in the Bevins case. It’s the same argument that was rejected. And further, it requires this Court to make basically a legislative finding of fact and I think the Congress has made that finding of fact. Congress considered these issues when Congress acted. And at this point, the Court, in order to reverse the congressional decision, would in effect be making a legislative act in a face of another legislative act without any empirical basis to support it. So, I think that all of those theories are just untenable as a basis for either the Eleventh Amendment ground or the executive immunity ground. Thank you, Your Honors.
Warren E. Burger: Thank you, Gentlemen. The case is submitted.