LOCATION: Wisconsin Eastern U.S. District Courthouse
DOCKET NO.: 71-564
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit
CITATION: 409 US 418 (1973)
ARGUED: Nov 06, 1972
DECIDED: Jan 10, 1973
Richard W. Barton -
Warren K. Kaplan - for respondent
Facts of the case
Media for District of Columbia v. Carter
Audio Transcription for Oral Argument - November 06, 1972 in District of Columbia v. Carter
Warren E. Burger:
We'll hear argument next in 71-564, District of Columbia against Carter.
Mr. Barton you may proceed whenever you are ready.
Richard W. Barton:
Mr. Chief Justice and may it please the Court.
The question which is before the Court in this case is whether or not the District of Columbia, a congressionally created municipal corporation is a person within the meaning of the 1871 Civil Rights Act, 42 U.S.C. 1983.
The court below answered the question in the affirmative.
It is our contention that it should be answered in the negative.
In this respect, we rely upon the decision of this Court in Monroe versus Pape in a host of circuit court decisions elsewhere throughout the country and upon the legislative history of the 1871 Civil Rights Act.
We start with the proposition that is undisputed and that is, that if the District of Columbia and other municipal corporations are persons within the meaning of the 1871 Act, it is because and only because the Congress so intended.
Now, this Court in 1961 in Monroe versus Pape in a unanimous opinion on this point, an opinion authored by Mr. Justice Douglas, expressly held as we read the opinion that Congress did not intend municipalities to be included within the word person as used in the 1871 Act.
The court below held that notwithstanding Monroe versus Pape, the District of Columbia was a person within the meaning of that Act and it did so on two independent grounds.
First, that Monroe versus Pape did not hold that municipalities were not persons within the meaning of the Act but rather held that they were persons within the meaning of the Act, but that municipalities could not be held liable in damages under the Civil Rights Act to the extent that they were immune under local law.
Now, the court did not phrase it in quite that way, but that is the necessary effect of the court’s holding because it held that the Civil Rights Act, the word person as used in that the Act did encompass the District of Columbia which is indisputable a municipal corporation.
In reaching the decision that it did, the court relied upon the legislative history of the 1871 Civil Rights Act which was thoroughly explored by this Court in its opinion in Monroe.
It pointed out that one of the reasons, one of the principal reasons which led to the so-called Sherman Amendment or amendments, there were two of them, the second one is slightly watered-down version, indicated that many of the members of the Congress were then concerned with whether or not the Congress could consistent with the constitution imposed liability upon municipal corporations.
That issue was very hotly argued.
Some took the position that it could, others took the position that it could not, but when the Congress rejected that amendment, the Sherman Amendment, now the Sherman Amendment would have made municipalities liable for actions within their borders by persons riotously and tumultuously assembled together which was a clear reference to the Ku Klux Klan and similar organizations.
That amendment was rejected.
Some I think projected it because they were convinced that it was unconstitutional.
Others perhaps rejected it because they thought it was unwise.
Perhaps still others because they thought it was both unwise and unconstitutional, but the amendment was clearly rejected.
And as this Court unanimously concluded in Monroe versus Pape, that legislative history is so forceful as a reflection of the intent of Congress that it would just be impossible to conclude that the Congress intended to include municipalities within the meaning of the term person as it used it in that Act.
Now, one of the things that the court below relied upon was the argument which had been advanced to this Court in Monroe versus Pape but which is not referred to in its opinion and that is that, in light of the concern of Congress as to whether or not it could impose liabilities on municipalities when they were immune under local law, the court should limit the -- its holding, the one that it eventually made in Monroe versus Pape to a holding that municipalities are liable under the Civil Rights Act only to the extent that they are liable under local law.
Now, the second basis for the lower court’s decision was a utilization of 1988 of Title 42.
Now, that is the statute which permits federal courts when they are administering federal laws and this would include 1983 to borrow provisions of state laws to assist the federal court in implementing a right which is given by a federal statute or the federal constitution.
But what the court below has done here is not utilized Section 1988 to implement a right, but rather to create a right which under this Court’s decision in Monroe versus Pape does not exist.
This Court said in Monroe versus Pape that there is no right to bring an action for damages against a municipality under 1983.
So the court made an end-run so to speak around that and said, “But you can borrow local law and if local law provides for liability then you can adopt that liability and use that to implement the nonexistent remedy that you have against the municipality under 1983.”
We submit that that is just not sound reasoning.
It has been rejected by several circuit court decisions, two in the Seventh Circuit, one in the Ninth Circuit, since the decision in this case came down.
Those decisions are -- the latest of those decisions is Moor versus Madigan the Ninth Circuit decision which discusses the two slightly earlier Seventh Circuit decisions that is -- it was decided on April the 12th of this year and was reported in 458 Federal 2nd at 1217.