Warren E. Burger: The case is submitted. We'll hear arguments next in Owen against City of Independence, Missouri. Mr. Achtenberg, I think you may proceed whenever you are ready.
Irving Achtenberg: Thank you, sir. Mr. Chief Justice and may it please the Court. This is an action which arose out of the termination of the employment of the Chief of Police of Independence, Missouri in the year 1972 by his employer, the City of Independence. The petitioner, the Chief of Police, believing that his termination was under circumstances which gave rise to a denial of procedure of due process brought an action in the Federal District Court in which he sought appropriate relief under the Fourteenth Amendment and 42 U.S.C. 1983. He was denied relief by the District Court and took an appeal to the Eighth Circuit Court of Appeals. The Eight Circuit, reversing the trial court, found that he had in fact suffered a stigma arising in the course of the termination of his employment occasioned by the acts of the highest officials of the city which gave rise to a right of procedural due process and reversed the trial court, ordering declaratory relief, as well as damages. The Court bottomed its denial of recovery against the individual officials of the city in their individual capacities on this Court's decision in Wood versus Strickland. It said, however, that the decision in Wood did not prevent it from finding entity liability against the city. Based upon that favorable -- that decision unfavorable against the city, the city sought and was -- filed a petition for certiorari before this Court.
Potter Stewart: The -- was the trial before or after our decision in the Monell case, the trial?
Irving Achtenberg: The trial was prior to Monell. The petition for certiorari was before this Court handed down its decision in Monell. While this -- while the petition was pending before this Court --
Potter Stewart: (Voice Overlap) --
Irving Achtenberg: -- Monell was handed down and this Court --
Potter Stewart: Remanded.
Irving Achtenberg: Remanded, vacating the decision in light of Monell --
Potter Stewart: Right.
Irving Achtenberg: -- to the Eighth Circuit. The Eighth Circuit then proceeded without changing any of its prior findings, without contradicting its prior findings as to stigma, denied all relief taking the position which we think was a totally unjustified leap with Wood versus -- from Wood versus Strickland to Monell that, now, in light of Monell, the city as an entity had the same immunity, the same good faith immunity, as it had previously given the individual Council members under the tree of Wood versus Strickland.
Potter Stewart: The -- just so I can get this in mind. I think I have it. The -- the trial was before Monell.
Irving Achtenberg: Pardon me, sir?
Potter Stewart: The trial was before the Monell case and the --
Irving Achtenberg: Correct.
Potter Stewart: -- trial court judgment was before the Monell case, and that judgment exonerated the individuals based on Wood against Strickland.
Irving Achtenberg: No, sir. The trial court denied relief.
Potter Stewart: Denied relief entirely?
Irving Achtenberg: The Eighth Circuit reversed the trial court, still prior to Monell.
Potter Stewart: Right. With -- and with respect to the individual defendants, the Court of Appeals relied on Wood against Strickland. And with respect to the city, the first time around, what did the Court of Appeals do?
Irving Achtenberg: With regard to the city?
Potter Stewart: Yes.
Irving Achtenberg: It granted relief --
Potter Stewart: Right, I see.
Irving Achtenberg: -- both declaratory and equitable relief.
Potter Stewart: And that also was, of course, before the Monell decision here.
Irving Achtenberg: Correct.
Potter Stewart: And then, your brother on the other side, I suppose, petitioned for certiorari.
Irving Achtenberg: That is correct.
Potter Stewart: If you had won.
Irving Achtenberg: Sir?
Potter Stewart: You -- you had prevailed in the Court of Appeals.
Irving Achtenberg: That is correct, yes, sir.
Potter Stewart: And it was then --
Irving Achtenberg: And the --
Potter Stewart: -- that the Court --
Irving Achtenberg: In fact, Monell had not served and decide it.
Potter Stewart: Right.
Irving Achtenberg: And it was while this Court was considering the petition for certiorari --
Potter Stewart: That Monell was decided.
Irving Achtenberg: -- that it handed down Monell.
Potter Stewart: And then, this Court remanded the -- vacated the judgment, remanded it to the Court of Appeals for the Eighth Circuit in the -- to reconsider it in the light of Monell.
Irving Achtenberg: Correct. And it's --
Potter Stewart: And it was then that the Court of Appeals for the Eighth Circuit found that the city was not liable because that the city, too, had an equivalent immunity to that of the individual defendants.
Irving Achtenberg: That is correct.
Potter Stewart: Is that it?
Irving Achtenberg: Yes, sir.
Potter Stewart: Thank you.
Harry A. Blackmun: Why do you think the Eighth Circuit panel completely reversed itself? It was the same panel, wasn't it?
Irving Achtenberg: I can only say with the court en banc of the Tenth Circuit in its rehearing on Bertot, that the Court simply made an inextricable flip-flop. It took a leap from Wood versus Strickland, passed Monell without explanation. If the Court will read the opinion, you will find that there is no justification except that the Court simply says that in light of Monell, we believe that the city has the same rights, same immunities as an entity that the individual councilman and the City Manager had.
Harry A. Blackmun: Certainly --
Irving Achtenberg: We find no rationale, no change of facts, no findings different than in the prior decision. It is simply a leap from how the Court must have felt that what this Court clearly, we thought, said, “We rule for another day,” it in fact had decided.
Harry A. Blackmun: Certainly, they must have seen something in Monell and in the grant, vacate and remand action by this Court that persuaded them to jump the other way.
Irving Achtenberg: Well, I certainly can't speak for the Eighth Circuit, but I can speak for myself. I do not see anything in their opinion which gives any explanation from making that judgment based on Monell. And if I may be so presumptive in reading Monell, I find nothing in Monell.
Harry A. Blackmun: And that's why you're here.
Irving Achtenberg: Exactly. I think the -- the issue is fairly framed before this Court and that is, is a good faith immunity which was granted to individual city officials in their individual capacity under this Court's decision in Wood versus Strickland is that to be extended in this case and in future cases to the -- the local governmental entity as an entity? Our answer to that question is a strong no. We --
William H. Rehnquist: Before you get to the immunity question, counsel, what do you have here by way of liability against the city other than a respondeat superior theory? As I -- as I understood Monell, I was in dissent but, as I understood the Court's opinion, you had to have either a policy or a custom.
Irving Achtenberg: Well, as the Eighth Circuit on remand found, considering the point raised in Monell that it must not be respondeat superior and that it must be official action. The Court had no difficulty, and nor do I, in finding that the conduct of which the plaintiff -- the petitioner complained was official action of the city.
William H. Rehnquist: Was that (Voice Overlap) --
Irving Achtenberg: It was based upon the denial of a hearing upon his termination which was a part of the charter provisions of the city. It was based on city ordinance and the action of the highest officials, the City Manager and the City Council, in proceeding under that ordinance.
William H. Rehnquist: Well, a --
Irving Achtenberg: It --
William H. Rehnquist: -- a municipal corporation can proceed only through individuals. I -- it -- it's simply an abstraction in the law. If -- if this were simply an isolated instance of a city official refusing to give a hearing, do you think you would have anything other than respondeat superior?
Irving Achtenberg: Well, if we were speaking of the action of the City Council, in light of a city ordinance, denying such hearing -- well, first of all, I -- I think I have ignored the circumstances of the termination which involved the entire action of the Council, the entire action of the City Manager, great publicity, and we have the, of course, the -- the liberty issue of stigma which gave rise to the procedure of due process right. We're not dealing with a question of whether or not an inferior employee had simply taken some action --
William H. Rehnquist: Well, do you -- do you think you --
Irving Achtenberg: -- under which he would not be liable for respondeat superior.
William H. Rehnquist: Do you think the doctrine of respondeat superior applies only to low-level employees that it cannot be used to impose liability on the -- the highest official of the municipal corporation?
Irving Achtenberg: Well, certainly, as an inanimate person, the city cannot act except through its officials. And if it is to have action subject to the provisions of 1983, that action must be by some officials.
William H. Rehnquist: And it's --
Irving Achtenberg: And in this case, we're talking about the highest officials of the city.
William H. Rehnquist: And it's imputed to the city by reason of respondeat superior.
Irving Achtenberg: Well, I do not see so, sir. I -- I -- as I see it, the city acts per se through its highest officials. It can act no other way. The -- the acts of lower officials in routine duties clearly might involve the question of respondeat superior. I do not say that, perhaps, a higher-level official might have an element of respondeat superior. I simply say, in this case, we have the -- the official conduct of the city. We have official policy based on an ordinance acted upon by the highest officials of the city, and we see no higher level of -- of functioning in which a city can perform.
William H. Rehnquist: Well, that's what I was trying to --
Irving Achtenberg: (Voice Overlap) The Eighth Circuit had no trouble and we have no trouble of saying this was official policy. This was an implementation of official policy.
William H. Rehnquist: That was what I was trying to get at. What, in addition to respondeat superior, you say was official policy?
Irving Achtenberg: We says so in the Eighth Circuit despite holding to the -- against us in its remand said this is now under -- because of Monell, is under 183 and it clearly is official policy of the city. It was the implementation of official policy.
William H. Rehnquist: Do you think the official policy referred to in Monell would require an affirmative policy protecting constitutional rights or simply a -- would require a policy which contravened constitutional rights?
Irving Achtenberg: Well, I suppose it could be either. In this case, we believe it -- it contravened a constitutional right. Under 1983, it says no person shall deprive any person of privilege and immunities or who shall provide shall be liable. In -- I think we -- this certainly fits that direct statement of the statute, whether -- whether it may apply in another situation is -- is irrelevant to this case, as I see it.
Byron R. White: Do you think there's a difference between a city ordinance as passed by the City Council that says the City Manager shall do the following and orders him to do it, order -- orders him to take some action, and he does it and the city sued, and the other case is the City Council authorizes him to do it? It doesn't order him to, just authorizes him. It wouldn't be -- it would be consistent with their policy if he did it. It doesn't order him to, and he does it and it's -- the city gets sued, do you think there's any difference between those two cases for the purposes of -- of Monell liability?
Irving Achtenberg: As I understand the question, I think not. It goes back to the -- to the fundamental function that -- fundamental concept that they are acting in the only way that a city can act.
Byron R. White: Well, you've got one -- you've got something like that here, haven't you? At least you've got an ordinance that author -- that you say authorizes what was done.
Irving Achtenberg: Well, the ordinance denies the right to a hearing --
Byron R. White: Right.
Irving Achtenberg: -- on termination.
Byron R. White: Right. And -- and so it -- so the ordinance -- whoever went ahead and denied the hearing, it was in accordance with the ordinance.
Irving Achtenberg: That is correct, yes, sir.
Byron R. White: Now, what -- take the third case that the -- let's assume there was no ordinance here at all, one way or another, about a hearing but the -- the executive officers of the city just deny a hearing, and then the --
Irving Achtenberg: We -- we would see no problem with that.
Byron R. White: And then the city is sued.
Irving Achtenberg: We -- we think it would still be a denial of the Fourteenth Amendment in 1983.
Byron R. White: Well, how would you know? How would you know that if --
Irving Achtenberg: Pardon me.
Byron R. White: -- that it's a city policy? What if the Charter says the -- the Charter reserves the -- the City Council of policy making authority in the city and the city managers and executives just executes?
Irving Achtenberg: Well, I think it projects -- the question projects beyond the facts of this case. You're talking about the interlinking action of the City Council and the City Manager.
Byron R. White: You don't need to go any further than to say that -- that whether the City Manager could do it on his own or not, here, there's an ordinance.
Irving Achtenberg: Well, not only there was an ordinance, there was action by the City Council the night before which, inextricably, was interlinked with his action the following morning.
Byron R. White: Alright.
Warren E. Burger: I'm not sure I, now, after these -- these several colloquies, distinguish between what you have described as policy and what was implementation or execution of the policy. Was the declaration in the Council meeting the policy and the action the next morning by the City Manager the action? Is that the dichotomy?
Irving Achtenberg: Well, we don't see it as a dichotomy. We -- I think the policy was the city ordinance which did not grant a hearing. The implementation of that policy was not only the action of the City Council at its formal council meeting directing the city Manager --
Warren E. Burger: So the -- the dividing line --
Irving Achtenberg: -- and that interlinked with the action of the City Manager the next morning.
Warren E. Burger: The dividing line that you've drawn is between the ordinance and the action taken pursuant to it by the Council.
Irving Achtenberg: Well, we consider them both under the concept of official policy or implementation of official policy which we think this Court viewed in Monell as official action or as not -- not subject to an immunity. In reaching our conclusion, we have attempted to follow the analogy which this Court had followed in all its decisions in which it has considered the individual immunity of various local governmental officials when the question has arisen, beginning with what we view as a seminal case of Tenney versus Brandhove. Now, we think that analysis, which we have tried to follow, as applied by the Court, begins, first, with the premise that this is the interpretation of a statute, the Civil Rights Act of 1871. It is a construction of a statute and in so doing, the Court, in each cases, said, first of all, this is a remedial statute which must be broadly construed. We -- it is mandatory in its language to find any exceptions or any immunities thereunder. We must look to the history, to the common-law and to the legislative history of the Act to determine whether or not there are any well-established common-law exceptions which we can properly feel were incorporated sub silentio, without comment, in the statute. Because of their very nature, they must have been known and implicitly incorporated by the 42d Congress. I think the Court commented, many of whose members were lawyers themselves and well-aware of the common-law. Now, that analysis is logical and reasonable. The converse is not true. In other words, it is not logical and it is not reasonable to import an immunity to create an immunity for cities which did not exist at common-law, which was not well-established, and which not was a matter of history. And, we -- therefore, we search that point extensively, and we were greatly assisted by the brief of the NEA and we reached the conclusion that we could not find a case in which where a city was sueable, it had any immunity. Now, we cannot say that there is not some case which neither the NEA nor we could discover, but we certainly can say that we have sufficiently researched the extensive cases of the 19th century state courts of this country and if we were unable to find any, then they certainly could have not reached the level of a well-established common-law immunity.
John Paul Stevens: Your opponent, of course, disagrees with you on that. Did he find any cases that you know of?
Irving Achtenberg: We do not recall that he cited any cases in the 19th century in which there was a -- a -- if a city was sueable, that it had any immunity.
Byron R. White: Well, that's a --
Potter Stewart: (Inaudible)
Irving Achtenberg: Sir?
Byron R. White: -- that's -- the problem is -- the problem, because there was sovereign immunity for -- for municipalities with respect to part of their functions.
Irving Achtenberg: Well, where there was -- the -- the question of sovereign immunity, of course, was answered by this Court in Monell and it -- the sovereign immunity doctrine, which was a constantly shifting doctrine, did not apply --
Byron R. White: So, more than (Voice Overlap) --
Irving Achtenberg: -- where a statute had subjected the city to suit. Here's a statute, not just a state statute, of course, if there had been a state statute, the State had relinquished sovereign immunity in that case. Here's a federal statute which certainly subjected a city, regardless of sovereign immunity, to suit.
Potter Stewart: But as the question of my brother White suggests, in the era in which this federal statute was enacted, the general doctrine was that a city had sovereign immunity for any liability of its governmental activities and it was liable only for its so-called proprietary activities. Wasn't that the generally accepted law of municipal corporations in the States?
Irving Achtenberg: Well, the -- the problem was not with the words “governmental propriety” but with the definition of those words.
Potter Stewart: I understand that, but wasn't that the -- wasn't that the generally accepted law in that era?
Irving Achtenberg: Well, to the --
Potter Stewart: Regardless of definitional problem (Voice Overlap) --
Irving Achtenberg: That's correct, yes, sir.
Potter Stewart: -- they exist and existed then, the law was that a -- that a municipality was sovereign immune -- because of its sovereign capacity, was immune for liability for any of its governmental activities but was liable for its so-called proprietary activities only.
Irving Achtenberg: Well --
Potter Stewart: Wasn't -- wasn't that the general --
Irving Achtenberg: Well, our problem, sir, is that --
Potter Stewart: (Voice Overlap) Well, that question can be answered yes or no.
Irving Achtenberg: The answer is -- is yes as to the wording of that concept. The concept is -- was a fuzzy one.
Potter Stewart: And then Monell --
Irving Achtenberg: It's --
Potter Stewart: -- came along and held that, as a matter of federal law under 1983, a city is no longer immune for its governmental activities.
Irving Achtenberg: Under 1983.
Potter Stewart: Under 1983.
Irving Achtenberg: Yes, sir.
Byron R. White: Or any of its activities.
Potter Stewart: Or any of its activities under 1983.
Irving Achtenberg: That is true, yes, sir.
Potter Stewart: But the point is that it -- that it was -- that the historic state of the law at the time of the enactment of 1983 was that a city was immune, completely immune for its governmental activities, whatever they -- those might be, wasn't it?
Irving Achtenberg: Well, it was immune when it could not be sued. If it could be sued --
Potter Stewart: Well, that's right. That's what immunity means.
Irving Achtenberg: Well, not so, sir. I think, in all our discussions, we talk about immunities when, sometimes, we are talking about defenses.
Potter Stewart: Well --
Irving Achtenberg: Immunity is -- is not being subject to suit.
Potter Stewart: But you -- anybody can sue anybody but --
Irving Achtenberg: Yes.
Potter Stewart: -- a defendant can immediately say “Look, I'm a municipality and what is my wrong -- alleged wrongdoing was a matter of my governmental activities” and that's a complete defense or used to be at least.
Irving Achtenberg: Well, that is correct. Once the -- first of all, if there was no statute taking -- granting a right of suit or creating a liability, which, of course, we feel has been created by 1983 --
William H. Rehnquist: But the United States of America has sovereign immunity and it's nonetheless sueable. It comes in and raises the defense of sovereign immunity and then, the question is has Congress waived that defense.
Potter Stewart: Right.
William H. Rehnquist: It's -- it's sueable. It's --
Potter Stewart: Anybody can sue anybody.
William H. Rehnquist: Justice Stewart says, anybody can sue anybody. The question is will the suit be allowed to proceed to the merits or is there some form of immunity that will prevent it from doing so?
Irving Achtenberg: I think this Court's answer in Monell was that it was sueable. I think we're also -- have the problem that the -- we're talking again about what could the 82d -- the 42d Congress intend in 1871, and we look at the prior to 1871 cases, and in our brief, we start with which -- with what we consider the significant Thayer of -- Thayer versus the City of Boston. Now, that was the case of a -- a city which was sued, which did make a good faith defense. The court said there was no good faith defense and the city was viable and the case is particularly significant because it was discussed in the debates by Senator Stevenson in the debates on the Civil Rights Act. And so, the court -- the Congress was clearly aware that the city -- cities could be sued. And nevertheless, it had the opportunity, the Congress had the opportunity, and it still came out with a very explicit and a very broad statute which, in its face, clearly included cities. And that was its intention. And we think this Court is governed by its intention. It is not a prudential matter. It is not a matter for this Court to weigh on policy or what is right or wrong. It is what did the 42d Congress intend. Going back to the question of the governmental proprietary distinction, perhaps an illustration might make it -- might make our position at least clearer. Let us say, for example, that a city had adopted an ordinance which said that Blacks could not be within the city after 6 o'clock at night. Now, that would be clearly an -- in the performance of its governmental activities, but we certainly do not conceive that that ordinance or the enforcement of that ordinance would stand up under the dictates of -- of Section 1983, the Civil Rights Act.
William H. Rehnquist: What if the City of Independence simply had an individual police officer who felt that Blacks should not be in the city after a certain time. The city had no ordinance, no policy, nothing like it. It never approved it, but this individual officer simply took it on himself to try to see that what he believed to be the proper policy was enforced. Would you have anything more there than respondeat superior?
Irving Achtenberg: No, sir. I -- I think I should make it clear, having answered clearly, no, that we are not suggesting there are no limitations, there are no immunities, if you will, no defenses created by Monell or -- or defined by Monell. Certainly, there was respondeat superior and certainly there was, perhaps, the opposite of that concept, official action. And we say that is not a small deterrent. That is not a small limitation. These two requirements do not leave us with a broad unlimited scope of attack upon cities.
William H. Rehnquist: And by official action, you mean an ordinance?
Irving Achtenberg: Well, it would not necessarily need to be an ordinance. In this case, we -- we think it was both. It was an ordinance. The implima -- implementa -- well, more than both, it -- we see it as following all the language of Monell. The -- the official action constituted an ordinance, the implementation an -- of an ordinance and the official action of the highest authorities of the city, the City Council and the City Manager.
Lewis F. Powell, Jr.: May I ask you a question about these facts? The City Charter explicitly authorizes the City Manager, as I understand it, to discharge any position that the manager has authority to fill. Is that correct?
Irving Achtenberg: Yes, sir.
Lewis F. Powell, Jr.: Is it your position that that --
Irving Achtenberg: Well, pardon me, sir. With one limitation, that was "when necessary for the good of the service". That was the language of the ordinance.
Lewis F. Powell, Jr.: Who makes that judgment? The City Manager has the sole discretion to make that judgment.
Irving Achtenberg: In this case, we say that judgment was the combined judgment initiated with the action of the City Council and implemented by the City Manager.
Lewis F. Powell, Jr.: Didn't this --
Irving Achtenberg: There might be a case where he acted without the character of this case, totally without consultation with the Council, totally on his own.
Lewis F. Powell, Jr.: May I ask this question? My recollection is that the District Court found that the City Manager already had decided to discharge the Police Chief prior to the action of the Council. Is that correct?
Irving Achtenberg: That was the District Court's finding. We frankly think it is not exactly based on --
Lewis F. Powell, Jr.: Did the Court -- did the Court --
Irving Achtenberg: -- the evidence which was that he had --
Lewis F. Powell, Jr.: Did the Court --
Irving Achtenberg: -- certainly, given strong consideration and --
Lewis F. Powell, Jr.: Did the Court of --
Irving Achtenberg: -- was contemplating firing --
Lewis F. Powell, Jr.: -- did the Court of Appeals --
Irving Achtenberg: Sir?
Lewis F. Powell, Jr.: -- disapprove of that finding?
Irving Achtenberg: The -- the Court, on appeal, found no difficulty with --
Lewis F. Powell, Jr.: Did it -- did it disapprove of it?
Irving Achtenberg: Well --
Lewis F. Powell, Jr.: Did it accept it? If the City Manager had agreed, had decided to discharge your client prior to the action of the Council, where does that leave your case?
Irving Achtenberg: I -- well --
Lewis F. Powell, Jr.: With respect to -- to the (Voice Overlap) --
Irving Achtenberg: I can't recall whether they specifically directed to -- to that, but the -- the Eighth Circuit clearly linked the action of the City Council with the action of the City Manager. And so regardless of what he had intended or what he might have done, which in fact, of course, nobody really knows because it didn't happen that way, the Eighth Circuit had no problem with finding that the -- the action of the City Council was inextricably connected with this action the following morning in which the City Manager not only followed the direction of the Council but publicly announced that he was referring the matter to the grand jury and was taking appropriate action, which was the direction and the motion of the Council.
Lewis F. Powell, Jr.: Did the City Manager ever endorse the statement by Roberts?
Irving Achtenberg: Sir?
Lewis F. Powell, Jr.: Did the City Manager ever endorse Roberts' statement?
Irving Achtenberg: Well, I think --
Lewis F. Powell, Jr.: Robert -- Roberts was a member of the Council.
Irving Achtenberg: Well, he was a member of the Council who was a lame duck councilman. That was his last Council meeting, why he's not a party --
Lewis F. Powell, Jr.: Is you --
Irving Achtenberg: -- this suit.
Lewis F. Powell, Jr.: -- your case -- your case depends on Roberts' statement, doesn't it?
Irving Achtenberg: No, sir.
Lewis F. Powell, Jr.: It doesn't?
Irving Achtenberg: We'd -- we'd -- well --
Lewis F. Powell, Jr.: Suppose Roberts --
Irving Achtenberg: It is a part of our case.
Lewis F. Powell, Jr.: Suppose Roberts hadn't made any statement. What would your case be? The City Council merely refers a report to the City Attorney for investigation. Is that improper?
Irving Achtenberg: No, sir.
Lewis F. Powell, Jr.: So your case --
Irving Achtenberg: In this case, we -- we are -- our case is obviously bottomed on Roth.
Lewis F. Powell, Jr.: On -- on Roberts.
Irving Achtenberg: It's -- it's on -- no, no, sir. It's on the stigma. The -- the -- first of all, the statement was not simply a statement. It was a serious charge, perhaps the most serious charge of any of the stigma cases that I have read.
Potter Stewart: Now -- now, whose statement, Roberts' statement?
Irving Achtenberg: Roberts' statement. And Roberts' statement which was a printed statement, a -- rather, a typed statement, fully prepared, included a formal councilman's motion. That statement and motion which was -- you might say that -- that the -- the allegations were the whereas of the resolution. The motion was made that they refer the statement -- the investigative statements to the Prosecuting Attorney for action by the grand jury that the -- or rather, that the City Manager be directed to do so, that he take appropriate action against those persons who were found to have acted improperly and that even further, that the statements themselves be released to the press. Now, this was not the action of a single councilman in any sense of the word. It simply began with a statement, then a motion, then formal action by the Council, then the following morning --
John Paul Stevens: May I ask a question --
Irving Achtenberg: -- the compliance with the direction of that resolution by the City Manager.
John Paul Stevens: Your opponent makes great -- poses great weight on a distinction between a policy case and a conduct case throughout his brief, which do you say this was?
Irving Achtenberg: Both. We -- we do not say that Monell made any distinction between conduct. The -- the --
William J. Brennan, Jr.: Well, you return the distinction --
Irving Achtenberg: -- the Monell speaks of -- of policy or the implementation of policy by the highest authorities of the city, and we view this as involving elements of both. You can't -- you can't act without conduct. We, frankly, did not follow the reasoning of that brief in that respect.
Warren E. Burger: Maybe he'll clarify that for us. Thank you.
Irving Achtenberg: Sir?
Warren E. Burger: Maybe he'll clarify that for us now.
Irving Achtenberg: Thank you.
Warren E. Burger: Mr. Carlisle.
Richard G. Carlisle: Thank you. Mr. Chief Justice and may it please the Court. My name is Richard Carlisle and I'm Associate City Councilor for the City of Independence, Missouri, which is a respondent in this case. First of all, I would like to clarify that the Eighth Circuit did indeed adopt verbatim the findings of fact of the District Court and repeated them verbatim in its brief, and that included all of the findings as to whether or not the City Manager based his discharge of Owen upon the stigmatizing statements of Paul Roberts saying clearly, he did not, and that is not an issue this afternoon.
Harry A. Blackmun: Was this in the first to go around to the second?
Richard G. Carlisle: First and second. There was never any -- any issue that was made as to the fact that the City Manager had decided to discharge the Police Chief at some time prior to April 17, which was when Paul Roberts made his statements. Indeed, I may be wrong about the date but it was along about April 10th or April 13th, somewhere near that he had already chosen the Chief's replacement.
William H. Rehnquist: Are you relying on page 83 of the petition for certiorari wherein Judge Bright's opinion on re -- after the remand of this Court, he says "The pertinent facts are set forth in our prior opinion"?
Richard G. Carlisle: Yes, and also on the fact that the Court of Appeals explicitly found that, at several points, that -- or Owen's discharge was not for reasons that related to his honesty and integrity. That is a direct quote from the Court of Appeals decision. And also, the Court of Appeals made it in express finding that Owen, the Police Chief, would have been denied his position as Police Chief, even had a name clear in here than held simply because the reasons for discharge did not relate to or adopt or discharge was not based upon the Paul Roberts statement. At the outset, I'd like to clarify a few more matters. This -- this isn't, I think, a difficult case, and it is important to recognize the distinctions between policy and conduct. It is very important to realize, I think, in the context of --
Byron R. White: In conduct alone.
Richard G. Carlisle: In conduct alone, yes. I -- I do see the possibility of a case --
Byron R. White: You don't -- you don't -- do you draw a distinction between policy and -- and policy implemented by conduct? I guess --
Richard G. Carlisle: No, sir --
Byron R. White: -- you never --
Richard G. Carlisle: -- not really.
Byron R. White: You never have any problem unless it's implemented.
Richard G. Carlisle: Right. I can see, for example, policy which is implemented merely once, first time you have execution. Let's say this is the only department head that was ever discharged by the City of Independence. That's not true in our city, but let's assume that for purposes of argument. The City Charter, which is clearly policy, states that department heads are non-tenured and can be dismissed only by the City Manager and really, in the City Manager's unfettered discretion. So, merely, again for purposes of argument, if this was the only department head that had ever been discharged, we would still be looking to the Charter itself as policy. And I'd like to also clarify right away that counsel, several times, stated that the denial of a name-clearing hearing was based on ordinance. That is totally unwarranted to say that. The City Charter itself, which, of course, is not an ordinance, contains explicit provisions about denial of an appeal to the department head where there is a discharge. Actually, it's -- it's almost silent about that, but it -- the appeal rights that are contained in the Charter, Section 3.2 (8) of the Charter which is set forth in my statutory provisions involved, relates to members of the classified service. Department heads are members of the unclassified service. Opposing counsel has tried to leverage, I suppose, this provision, 3.2 (8), as into some sort of not silent but actually -- control actually exercised charter provision that denied a name-clearing hearing. That's simply not the case. The -- the Charter is really, I suppose, silent on name-clearing hearings. 2.1 (1) of the Charter has been cited by counsel belatedly, I might add, as to some sort of policy which would deny a name-clearing hearing. But that -- that Section is simply the Section that's contained in all council manager charters which prohibits exactly the type of thing that Paul Roberts did in this case, that is, interfering in the discharge process in the event that that is the decision of this Court that he did that.
Potter Stewart: Was -- Mr. Owen was the Chief of Police.
Richard G. Carlisle: Mr. Owen was the Chief of Police.
Potter Stewart: And as such, was he an Independence, under the Charter, a department head?
Richard G. Carlisle: Yes, he was, Your Honor.
Potter Stewart: And there was nobody between him and the City Manager, there was no safety director or anybody like that?
Richard G. Carlisle: No, sir. He was directly answerable to the City Manager.
Potter Stewart: And he was the department head --
Richard G. Carlisle: Yes, sir.
Potter Stewart: -- directly under the City Manager.
Richard G. Carlisle: Yes, they had an extremely or should have had an extremely close working relationship, and I think that is the explanation for --
Potter Stewart: Right.
Richard G. Carlisle: -- the unfettered discretion.
Warren E. Burger: But he could only be dismissed for cause in the sense that it was defined that it's for the good of the services.
Richard G. Carlisle: In the sense it was defined, Mr. Chief Justice, but I think he suggest in a point on the property issue which is not before this Court. It was an issue below. And, in essence, in the sense that for cause has been used in the Supreme Court's cases, it was not a discharge for cause. It was a discharge totally in the discretion of the City Manager for any cause the City Manager deemed sufficient. But --
Warren E. Burger: So -- is -- is that why you say that there would be no point or purpose to a hearing?
Richard G. Carlisle: Well, there would be no point or purpose whatsoever to an appeal of the City Manager's decision. It's not provided for in the Charter. The City Manager's decisions for discharge did not relate or were not based upon the Paul Roberts statement. Any -- any name-clearing hearing that may have been implied by Board of Regents versus Roth or at one time, though not presently, by the Court of Appeals and never by the District Court. In other words, the right to a name-clearing hearing is obviously why we're here today. But the -- the right to a name-clearing hearing in the event that there was stigma in connection with discharge would, I think, be something that I could conceptualize as some meaning to. The point is that it is not in connection with the discharge, that the name-clearing hearing was not really denied as such but there was an act of omission, let us say, in a failure to affirmatively offer the Police Chief a name-clearing hearing. The Charter was silent as to name-clearing hearings. 2.1 (1) of the Charter which no allegation, incidentally, is in plaintiff's complaint about 2.1 (1) merely would have prohibited the City Council or Paul Roberts from participating in the discharge process or something in connection with the discharge process and holding some type of hearing. Had the City Council not been involved in the discharge process, perhaps some other type of name-clearing hearing could have been held by the City Council. And 3.2 (8) again of the Charter was a section which pertained to property rights and not liberty rights. The point I'd like to make this morning is that the Charter was silent as to name-clearing hearings and that, indeed, no ordinance, no charter provision, nothing pertained to the precise type of name-clearing hearing that we're talking here -- about here today. And that's not unusual because procedural due process is a broad and changing concept. It's -- it's one that -- that many times, we are --
William H. Rehnquist: I take it, this is an argument then that you're disagreeing with the Court of Appeals.
Richard G. Carlisle: I'd -- I reserve in my last section, disagreement --
William H. Rehnquist: What you're saying -- you're saying you disagree that there was a policy.
Richard G. Carlisle: I see your point, Your Honor.
William H. Rehnquist: The Court of Appeals thought there was a policy --
Richard G. Carlisle: Yes.
William H. Rehnquist: -- but thought there was immunity.
Richard G. Carlisle: The -- the way that the Court of Appeals --
William H. Rehnquist: You're not arguing no immunity, you're arguing no policy.
Richard G. Carlisle: I'm actually arguing both.
William H. Rehnquist: Well, right now, you're arguing no policy.
Richard G. Carlisle: Yes. The Court of Appeals found that the conduct which coincided in time of Paul Roberts, the City Council motion, and that Lyle Alberg discharged the Police Chief. That that conduct, and I'm quoting from the Court of Appeals opinion, "could fairly be said to be official policy". I do not agree with that statement, but it is not --
William H. Rehnquist: Well, what if you did?
Richard G. Carlisle: I -- I have not made that really an issue --
William H. Rehnquist: What if we agreed with the Court of Appeals?
Richard G. Carlisle: Then, I --
William H. Rehnquist: --what --
Richard G. Carlisle: -- think you still have to decide whether or not, on that basis, what type of cause of action we're dealing with here. I -- I think that -- that the opposing counsel in this case --
William H. Rehnquist: You're saying even if it was policy that it would still be immunity.
Richard G. Carlisle: No, Your Honor. In the true policy case, say, for example, one of plaintiff's allegations in his complaint, sir, was that, I believe, it was 3.3 of our Charter was overbroad on its face. It was vague. Good faith is no defense to this Court's analysis of whether a charter provision is overbroad on its face, but where you are talking about conduct, the Paul Roberts statement, the City Manager's act of omission in failing to affirmatively offer a name-clearing hearing or -- or policy, in the sense that I use the word --
William H. Rehnquist: Well, what if the -- what if the City Council had specifically ordered that no hearing be granted --
Richard G. Carlisle: The City Council --
William H. Rehnquist: And then they -- and then they, in implementation of that --
Richard G. Carlisle: Yes.
William H. Rehnquist: -- it isn't granted.
Richard G. Carlisle: The -- the City Council, school boards, any type of public governmental body can act in a -- in a legislative capacity. They can also act in a quasi-judicial capacity. They can have conduct. And to illustrate the point we were talking about an ordinance that prohibited Blacks in the city at night. Good faith is no defense to an analysis of that ordinance. If, however, Paul Roberts personally felt that Blacks should not be in the city at night, then obviously you're talking about conduct and not policy. I would think bad faith conduct but not policy.
Byron R. White: The city wouldn't -- the city wouldn't be liable.
Richard G. Carlisle: That's another difficult point. So holds Monell, Your Honor.
Byron R. White: Isn't that what you're talking about?
Richard G. Carlisle: Yes, but as a --
Byron R. White: Well, isn't that --
Richard G. Carlisle: -- practical matter, the reasons behind the good faith defense, as cited in -- the two reasons are cited in Scheuer versus Rhodes, have always recognized the fact that cities indemnify their employees. And as Jaffe, who is the author of those two rationales, recognized it is basically the -- and I think as the Court did in -- in Scheuer, it is basically the same concepts behind sovereign immunity that are the concepts behind the two rationales in -- in Scheuer.
Byron R. White: When would the -- when would the -- if there's any rule that a city shouldn't be liable on a respondeat superior basis, when would that ever apply if it -- if it didn't apply when an employee, contrary to policy, acting on his own in bad faith, hurt somebody?
Richard G. Carlisle: I think the respondeat superior rule should apply in full force when an employee acting in bad faith and as in this case with Paul Roberts, in violation of official policy. Again, 2.1 (1) prohibited the type of statement that Roberts made. I can't see that the city should ever be liable for that conduct.
Byron R. White: Well, then, you want to -- that isn't the ground the Court of Appeals used.
Richard G. Carlisle: No, the Court of Appeals quite simply, and without much analysis, held that that conduct could fairly be said to be official policy.
Byron R. White: Yes. And you say it wasn't. As a matter of fact, it contravened policy.
Richard G. Carlisle: Yes, as -- as far as the Paul Roberts statement was concerned.
Byron R. White: So, for you to win, do we have to overturn the Court of Appeals?
Richard G. Carlisle: No.
Byron R. White: Well, we have to disagree with them.
Richard G. Carlisle: No, I'm saying that it's either one case or the other, Your Honor, that treat it as conduct or treat it as policy, don't find some critical gap in between the two where I have no policy which has given deference, which I think this Court would give under the separation of parish doctrine, and I have no conduct which is given a good faith defense. Quite literally, under plaintiff's theories, I do not know of any defense, any argument that I could make to this Court. I couldn't argue good faith immunity and I couldn't argue deference. He has it both ways. In other words, when we're talking about policy, he says that I have no deference. And when we're talking about conduct, he says “I have no qualified immunity.”
Byron R. White: Well --
Richard G. Carlisle: What do I have?
Byron R. White: -- let's -- let's suppose that there was a city ordinance or a provision in the Charter that says that whenever any department heads are discharged, no hearing shall be -- the -- the City Manager has complete discretion and he -- and when he discharges them, no hearing shall be ever given. That's just what the Charter says. I suppose you would say that's policy.
Richard G. Carlisle: I would definitely say that's policy. I would say that this Court will be --
Byron R. White: And let's just say the City Manager discharges somebody, a hearing is demanded, and he denies it saying “I can't grant one. The city --
Richard G. Carlisle: My --
Byron R. White: Now, you wouldn't --
Richard G. Carlisle: Then --
Byron R. White: -- say the city -- you wouldn't say the --
Richard G. Carlisle: --the -- the Charter -- excuse me, Your Honor.
Byron R. White: You wouldn't say that the city is -- has a qualified immunity there, would you?
Richard G. Carlisle: I would not. I would say you would be looking at the Charter.
Byron R. White: So, the whole question is whether the --
Richard G. Carlisle: And I would ask you to give deference to my Charter.
Byron R. White: -- the whole question in the case then is whether there's policy or not, not whether there's immunity.
Richard G. Carlisle: I -- I agree that there is no qualified immunity to true policy. I agree, in my brief, and -- and I -- I say that where conduct is treated as policy, if you are truly talking about conduct, as I think we are here.
Byron R. White: So you do want us to -- you do want us then to say the Court of Appeals was just clearly wrong on saying there was policy.
Richard G. Carlisle: No, because I think what the Court of Appeals did in this case, they said, under the particular circumstances of this case, that qualified immunity could be granted. And, I think that is -- is right. I will agree with counsel that there was not an extensive amount of discussion, though, if -- if you look at the file of this case, you will realize that this was not the first time the case had been before the Court of Appeals and that many words had been written about this case, and the District Court had analyzed the issue of --
Byron R. White: I thought you --
Richard G. Carlisle: (Voice Overlap) --
Byron R. White: (Voice Overlap) argue that if there was no policy, there wasn't any -- any liability at all, qualified or not. That you just -- you just -- otherwise, it's just liability on a respondeat superior basis which (Voice Overlap) --
Richard G. Carlisle: I was tempted to make that argument, Your Honor, and basically because of the indemnity provisions in some state laws and the informal indemnity that is given as a matter of course at any rate, it would be simplistic for me to argue that the city will never be liable for the conduct of its employees. In a -- in a true --
William H. Rehnquist: Counsel, supposing that you have an ordinance that is exactly the converse of what my Brother White is suggesting that says, in every case of the firing of a department head, there shall be the opportunity for a hearing conducted by the City Manager. The City Manager, flatly contrary to that ordinance, refuses to conduct such a hearing and discharges him anyway. He is an employee of the city. He is presumably liable under respondeat superior theory, but you have nothing else. Now, under Monell, you don't have any liability there, do you?
Richard G. Carlisle: I agree completely.
Byron R. White: Never.
Richard G. Carlisle: I agree. I'm trying to be practical in recognizing the fact that there are going to be instances coming before this Court and certainly coming before the Circuits where a city is asked to be liable for conduct. And I think this is such a case, where you make the distinction, and it's a difficult distinction, between conduct and policy. I have defined policy, for example, as something of continuing effect, something of future effect and general application.
Byron R. White: Oh, I still don't know what you do with the Court of Appeals conclusion there was -- that there was policy here.
Richard G. Carlisle: I accept it because it's not a question presented in this case. And then --
Byron R. White: No --
Richard G. Carlisle: Once the Court of Appeals --
Byron R. White: You -- I suppose if you are a respondent, you could probably say --
Richard G. Carlisle: Yes.
Byron R. White: -- there wasn't policy --
Richard G. Carlisle: Well --
Byron R. White: -- and -- and that you didn't cross-petition --
Richard G. Carlisle: In my last point relied on, I, in essence, raise certainly elements of that argument. But what I'm saying in this case --
Byron R. White: But if there's policy and there's just implementation of a city policy involved here, I don't know how you --
Richard G. Carlisle: But I don't see -- what we have here, really, I think, is respondeat superior, as -- as was recognized in the discussion before, and I'm willing to accept that as favorable to my case, but I'm saying it's not dispositive of my case. I'm saying, as a practical matter, there are going to be situations where there are close questions as to whether something is conduct or policy. And if it is policy, I think this Court has to give deference to that policy. If it's conduct, then I think we get qualified immunity.
Byron R. White: Let's assume -- let's assume --
Richard G. Carlisle: We get one or the other.
Byron R. White: Now -- now, if you -- if you agree that the pure implementation of a policy, of an admitted policy, would -- would not -- that there would be no immunity there. Now -- and then -- if -- and if you agreed in this case that here was a policy involved that the City Manager was implementing, you would say no immunity.
Richard G. Carlisle: I do not believe that there was a -- a policy I -- I know for --
Byron R. White: I -- I know you don't --
Richard G. Carlisle: -- a fact.
Byron R. White: -- but let's suppose you did.
Richard G. Carlisle: If, in the example, I believe, that you gave, Your Honor, that there was a charter provision saying no hearings whatsoever, we would be here. We would be reviewing that charter provision. We would be talking about such things as legislative intent. We would be talking about the separation of powers doctrine.
Byron R. White: Well, what if --
Richard G. Carlisle: We would be talking --
Byron R. White: -- what --
Richard G. Carlisle: -- about whether there was --
Byron R. White: -- what if the Charter --
Richard G. Carlisle: -- any rational basis.
Byron R. White: -- what if the Charter said the City -- the City Manager has -- has broad executive powers and he has powers to issue regulations to carry out provisions of this Charter --
Richard G. Carlisle: I believe --
Byron R. White: -- and he issues a set of regulations --
Richard G. Carlisle: Yes.
Byron R. White: -- that says “in -- in furtherance of my power of discharge, here is the procedure”. There isn't any.
Richard G. Carlisle: I do believe --
Byron R. White: There is no procedure and he --
Richard G. Carlisle: Yes.
Byron R. White: -- fires a man and no -- no hearing. Is that city policy or not?
Richard G. Carlisle: I do believe that it is possible for a city manager to create city policy, although I must agree that in a council-manager form of government, historically, the City Council creates policy and the City Manager executes it. But I think that -- that policy of a -- of general applicability in future effect can be made by an executive, and I think that it is possible --
Byron R. White: And the City --
Richard G. Carlisle: -- that we could, in essence, have an administrative rule that we would be talking --
Byron R. White: And that --
Richard G. Carlisle: -- about. We do not.
Byron R. White: In which event, there would be no qualified immunity.
Richard G. Carlisle: It's exactly right, Your Honor. Again, I'm comfortable with that argument based upon my facts. I would hasten to add that in Footnote 23 of my brief, there are considerations similar, though not co-terminus with qualified good faith immunity of the individual which do pertain as to whether or not there should be retroactive monetary relief in a policy case. This Court is, quite often, struggling with that idea, whether a policy is voidable or void ab initio, whether some sort of presumption of validity of policy such we -- such as we should have on our Charter would continue that policy in effect until it's ultimately deemed to be unconstitutional.
John Paul Stevens: Mr. Carlisle, can I ask you a question about the -- the basic claim in the case to -- to get all these arguments in better focus. As I understand that the good faith defense rests largely on the fact that the state of the law was uncertain or hadn't developed at the time of the events in question?
Richard G. Carlisle: In large, Your Honor.
John Paul Stevens: Now, assume that the same events took place today and everybody knew the law, so you wouldn't have this kind of a good faith argument, would you agree that the facts would support recovery by the plaintiff under 1983 against somebody?
Richard G. Carlisle: Yes, Your Honor.
John Paul Stevens: Okay, I just want to be sure of that.
Richard G. Carlisle: Actual good faith in this case, of course, was not limited solely to the nonexistence of settled law and, indeed, the existence of good faith is not a question presented on appeal but in that regard, we also were talking about no malice which was established below. We're talking about job offers that were made. We were talking about informal --
Potter Stewart: That would have to do with the extent of damages, perhaps, wouldn't it?
Richard G. Carlisle: I believe it has much to do with -- with the qualified good faith immunity which would -- would defeat --
Potter Stewart: Well, I'm talking about the job offers that were made that might --
Richard G. Carlisle: Yes, that would be mitigation as well, but it's -- it's --
Potter Stewart: And the amount (Voice Overlap) --
Richard G. Carlisle: -- the type of subjective factor that I think the Court took into consideration when talking about no malice.
William H. Rehnquist: Well, you -- you have in this case, don't you, as in so many cases of this kind, different elements that are very easily kind of interchangeable and not easy to separate? First, the constitutional violation which could occur. Any employee could violate the defendant's -- the plaintiff's constitutional rights. And then, you have the respondeat superior plus requirement of Monell which says that even if an individual employee has violated a constitutional right, the city can't be held liable unless you show something more than respondeat superior. And then, you have elements of damages and mitigation, that sort of thing.
Richard G. Carlisle: Yes. This is an extremely complex case to analyze, in my opinion, because of the interplay of all of those and other issues in -- in here in this case. It's -- it's a lot -- lot easier, I think, to maybe look at some other allegations in plaintiff's complaint that aren't here to kind of define what I mean about when qualified immunity is not available. He made allegations, for example, as to -- as I mention, one section of our Charter being overbroad. I think this Court can look at the language. I think it can look at arguments of council, but things like whether I -- whether the council maliciously passed that is not going to stop this Court from reviewing some language of my Charter by the same token if the City Council conspired to fraudulently pass a policy. You would be talking about conduct, wouldn't you? In -- in the making of that policy, you can have fraud. There are many, many cases involving fraud by policy-making bodies, but that's conduct. That's a tort. But then, really, something comes into existence that is called policy. There is --
William H. Rehnquist: Well, what --
Richard G. Carlisle: -- such a thing as policy exempt.
William H. Rehnquist: -- what has fraud got to do with the constitutional violation with 1983?
Richard G. Carlisle: I think you could have fraudulent conspiracy to deprive someone of a constitutional right and that conspiracy could be either in the making of policy or in the execution of policy. But then, when the policy itself would come into existence, there is really something there to review. For example, Section 3.3 of our Charter. It has language. It exists. You can sit down. You can look at it. You can talk about legislative intent. You can talk about rational basis. This Court does it all the time and it has done it all the time in 1983 cases. Monell is basically such a case where you are talking about a leave of absence policy. That's something that you can review as policy. Craig versus Boren was a 1983 case where you were talking, I believe, about age discrimination and when you could buy a beer. Case after case after case, you're looking at a regulation, and this Court is not going to concern itself with the objective and subjective parts of qualified good faith immunity when you're reviewing policy itself.
John Paul Stevens: Mr. Carlisle, let me carry the question I asked you before one step further. I think I understand the answer, but I want to be sure. Would you agree that if the facts that have been found here occurred today, that the city would be liable under 1983?
Richard G. Carlisle: If we do accept, as I have only for the purposes of argument, that in some event, conduct can bind the city, and I think basically it can. In other context, getting away from this case because I think the Court of Appeals was wrong when pressed to admit that, and although it's not salient to my theory as a whole, but I think that you can have situations possibly which may create a 1983 case for violation of federal laws where employee conduct, notwithstanding the non-application of the respondeat superior theory, could conceivably create entity liability.
John Paul Stevens: And -- and specifically, this is such a case, unless we hold, that there is good faith immunity for the municipality.
Richard G. Carlisle: I'm -- I'm afraid I don't understand the question, Your Honor.
John Paul Stevens: I -- I think I understand you to be arguing and in part admitting that if the facts we have before us occurred today, so there was no good faith immunity defense available, the city would be liable which -- the converse of which is that you are saying, in essence, that you are relying squarely on good faith immunity as the reason the city is not liable.
Richard G. Carlisle: I am, Your Honor, because I see absolutely no policy that I can rely on one way or the other. Our Charter is silent as to policy. We are looking only at conduct, conduct which merely because of the rank of Paul Roberts was treated as policy.
John Paul Stevens: If that's true, may I ask you, because I really didn't find you addressing this very much. Why should -- what --what is there in the law to support the notion that in a situation in which a city would otherwise be liable, it should be immune from liability because of the good faith of its officials?
Richard G. Carlisle: Simply because you look at the nature of the cause of action. I agree with opposing counsel that the qualified good faith immunity may be an ill chosen term because I think it relates to the cause of action. If you are talking about a federal tort, as opposing counsel designates this case to be, then you are looking at a background of tort liability that includes concepts such as state of mind, proximate cause, cause and fact and duty. I believe that the good faith immunity, if we can call it an immunity, which is, really, I think the defense on the merits, relates directly back to plaintiff's prima facie case on this federal tort. And whether the -- I -- merely because --
John Paul Stevens: How does the --
Richard G. Carlisle: -- the entity --
John Paul Stevens: It's rather unusual to have an affirmative defense relate back to the prima facie case.
Richard G. Carlisle: Not at all, Your Honor. Whether or not something is an affirmative defense is, as I understand civil procedure, made on a determination of whether or not it would be a permitted but disfavored defense, which this may well be, the convenience to the party's accessibility to evidence. Quite often, we have a defense on the merits that is made an affirmative defense. And incidentally, I do not know of this Court ever having held, and I think Wood versus Strickland can be held to the contrary or seen to the contrary that the good faith defense, as we know it, is, indeed, a -- an affirmative defense. It's just kind of accepted as such, but I do not --
John Paul Stevens: In fact, pecuniae then as to --
Richard G. Carlisle: -- know that to be the case.
John Paul Stevens: -- support your position on that. Pecuniae against never as to support you on that.
Richard G. Carlisle: Yes.
Lewis F. Powell, Jr.: Mr. Carlisle, the only injury alleged in this case, as I understand it, is stigma. Is that correct?
Richard G. Carlisle: As I understand it, Your Honor.
Lewis F. Powell, Jr.: The District Court found, also as I understand it, that there was no stigma. Is that correct?
Richard G. Carlisle: Yes, Your Honor, he --
Lewis F. Powell, Jr.: Why -- why do you give your case away then?
Richard G. Carlisle: Again, it's not the question presented on appeal. I do reserve parts of that, Your Honor, in my last point relied on when I talk about the threshold question being a deprivation. I do not believe a deprivation of liberty occurred in this case.
Lewis F. Powell, Jr.: Well, why don't you stand on that?
Richard G. Carlisle: Well, it was back [Laughs] a little bit further on my argument.
Lewis F. Powell, Jr.: Which -- in -- in responding --
Richard G. Carlisle: It is in my last point relied on, Your Honor.
Lewis F. Powell, Jr.: -- in responding to my Brother, Justice Stevens, I have understood you to concede that you (Voice Overlap) --
Richard G. Carlisle: I do not concede that stigma is present in this case.
Lewis F. Powell, Jr.: Alright.
Potter Stewart: Certiorari (Inaudible).
Byron R. White: The Court of Appeals found there was.
Richard G. Carlisle: The Court of Appeals found that there was a deprivation of liberty, that's correct, Your Honor.
Byron R. White: And that there was stigma and --
Richard G. Carlisle: There must be --
Byron R. White: So -- so -- and to the extent that it's a respondent, you rely on the contrary. You are in -- going contrary to the Court of Appeals --
Richard G. Carlisle: In my last point --
Byron R. White: -- which is your privilege -- which is your privilege.
Richard G. Carlisle: Yes, and my last point relied on, Your Honor, I claim that there was no deprivation of liberty.
John Paul Stevens: Well, in fairness to you then, Mr. Carlisle, you really want to withdraw your answer to one of my questions.
Richard G. Carlisle: I don't think so.
John Paul Stevens: You don't really accept, for purposes of decision, the proposition that if this conduct occurred today, it would be liability against anybody.
Richard G. Carlisle: If it occurred today, Your Honor -- I -- I understand what you're saying. There are two different ways of looking at it. I feel that your question, in the abstract, as to the availability of a qualified immunity defense which I believe is lost if you're acting in the face of settled law. That was the answer I had intended to give.
John Paul Stevens: No, I -- what I really meant to ask you, and I -- because there are so many issues that crisscrossing the case, is assuming you didn't have a qualified immunity defense at all because of the fact that it occurred today and there's no matter of unsettled law or anything else, just on the basic facts of the case, I was asking you whether or not you were contending that there would be no liability anyway.
Richard G. Carlisle: There would be none, under my last point relied on.
John Paul Stevens: Because of the argument that there's not a --
Richard G. Carlisle: I do not believe that plaintiff has established threshold question of deprivation of liberty.
John Paul Stevens: And that's because you don't regard these -- these comments as stigma, is that it?
Richard G. Carlisle: They -- they were not stigmatizing in connection with the discharge, Your Honor, which you must --
John Paul Stevens: Is that because (a) we're not stigmatizing or (b) we're not in connection with the discharge?
Richard G. Carlisle: Primarily, they were not in connection with the discharge, although I think the District Court was correct in -- in finding, and he was the trier of fact, that the plaintiff's name was cleared by the return of a no --
John Paul Stevens: Well, that's still a different (Voice Overlap) --
Richard G. Carlisle: -- true bill by the grand jury.
John Paul Stevens: You've got three possible arguments.
Richard G. Carlisle: Yes, you do.
John Paul Stevens: One, not stigma and two, not in connection and three, they've been cured.
Richard G. Carlisle: I have -- I have --
John Paul Stevens: I want to know which are you relying on here.
Richard G. Carlisle: I have conceded, for the purposes of argument, all along that the robust comments of Paul Roberts were stigmatizing.
John Paul Stevens: Alright, and do you -- but you deny that they are in connection with the discharge.
Richard G. Carlisle: I certainly do, Your Honor.
John Paul Stevens: You also argue that they were cured in any event.
Richard G. Carlisle: I do, Your Honor.
Warren E. Burger: Thank you, gentlemen. The case is submitted. We'll hear arguments next in Illinois against Vitale.