Hardin v. Straub Page 2

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Media for Hardin v. Straub

Audio Transcription for Oral Argument - March 22, 1989 in Hardin v. Straub

Douglas Ryan Mullkoff:

The second objective, deterrence, is not interfered with or impeded by a statute of limitations tolling rule.

Our position is that the greater period of time a victim has to file, the greater the deterrence... the deterrent effect will be.

If we believe that giving prisoners access to court will actually deter Section 1983 claims, then it only follows that giving greater access to prisoners will foster greater deterrence.

William H. Rehnquist:

You're not really talking about deterring 1983 claims.

You're talking about--

Douglas Ryan Mullkoff:

I'm sorry.

William H. Rehnquist:

--deterring the conduct on which 1983 claims are based, aren't you?

Douglas Ryan Mullkoff:

That's correct, Your Honor.

We disagree with the idea that you can deter official misconduct, that... that it is not possible to deter official misconduct with a tolling provision or a lengthy period of time.

Respondents argue that promptness and a promptly filed claim fosters deterrence and that the opposite is not true.

We... we don't believe that that necessarily follows.

In criminal law, for instance, tolling provisions are used in statute of limitations systems using criminal codes.

It wouldn't be argued that we should abandon statute of limitations tolling provisions in criminal law because it wouldn't foster deterrence.

I think the opposite is more persuasive, that the greater the period of time for bringing charges, the greater the deterrent effect would be.

Presumably the greatest deterrence in a civil rights case occurs when a victim prevails in a court of law.

We think that there are other reasons based on this Court's past decisions which should support our view.

The Congress has made clear in Section 1988 that it was willing to rely on a state's judgment regarding statute of limitations law.

The concept of federalism would be supported by applying Michigan's tolling law.

The State of Michigan has considered and reconsidered this law written and rewritten the law, and the Michigan Court of Appeals has reviewed it.

In 1981 there was a constitutional challenge to this particular tolling law, and the Michigan Court of Appeals found it to be supported by valid governmental interests.

Respecting the legislature's wishes here would promote federalism.

It isn't disputed that the Michigan courts would apply this tolling law to a civil rights claim were it brought in their courts.

Harry A. Blackmun:

That's... that's settled by decision.

Douglas Ryan Mullkoff:

That... that appears to be settled by the case of Hawkins v. Justin that the Michigan Court of Appeals decided, and it was also acknowledged in Higley v. Michigan Department of Corrections, the Sixth Circuit case that Respondents rely on.

The final--

William H. Rehnquist:

When... Mr. Mullkoff, when the legislature revisited the tolling statute, was there any discussion or anything in the reports, if there are reports in Michigan, that dealt with... there's a seeming incongruity where the person is in solitary confinement and claims to be wrongfully there, and he presumably isn't there by the time he brings his action.

Did the legislature discuss that at all?

Douglas Ryan Mullkoff:

--The legislative committee report in the 19... to the 1972 amendment to Michigan's tolling statute indicated a recognition that prisoners in modern times have increased access to courts.

They acknowledge the fact that lawsuits can be filed, counsel can be obtained, and that although prisoners may not be permitted to actually appear in court, they can file their actions.

The committee said, nonetheless, we still think that restrictions obviously exist and that it would be prudent to leave a one-year window.