Tower v. Glover

LOCATION: Culpeper County Courthouse

DOCKET NO.: 82-1988
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 467 US 914 (1984)
ARGUED: Feb 22, 1984
DECIDED: Jun 25, 1984

Craig K. Edwards - on behalf of respondent
David B. Frohnmayer - on behalf of petitioners

Facts of the case


Media for Tower v. Glover

Audio Transcription for Oral Argument - February 22, 1984 in Tower v. Glover

Warren E. Burger:

We will hear arguments first this morning in Tower against Glover.

Mr. Frohnmayer, you may proceed whenever you're ready.

David B. Frohnmayer:

Thank you, Mr. Chief Justice, and may it please the Court, the narrow subject presented by this case is whether public defenders are immune from their clients' Section 1983 claims when they are cast as conspiracies.

But the broader question directly implicated is whether the Civil Rights Act of 1871 in this Court must countenance conspiracy claims which act to undermine effectively the independence and functioning of the state in judicial processes.

This Court has previously recognized the integrity of the judicial system by granting absolute immunity to three of its four vital participants: judges, witnesses, and prosecutors.

This case presents an opportunity to close the fourth side of an iron rectangle of protection for the judicial process by acknowledging the immunity of the public defender.

Extension of this protection obviously goes beyond the mere desire for geometric symmetry, because it enhances, rather than endangers, the capacity of states to provide indigent defense counsel in accordance with the command of this Court in the Sixth and Fourteenth Amendments in Gideon v. Wainwright.

In urging reversal of the Ninth Circuit, below we submit four propositions this morning.

First is that public defender immunity from Section 1983 conspiracy claims is, in fact, necessary to protect against destructive suits which themselves threaten the integrity and finality of the judicial process itself.

Second, that public defender immunity is necessary to protect the institution of public defender as one of the most effective methods of meeting Sixth Amendment mandates.

Our third contention and proposition is that public defender immunity, in fact, best serves the interests of indigent clients.

And, finally, we submit to the Court that there exist alternative remedies for those few abuses which might exist which amply justify the grant of absolute immunity.

The facts giving rise to this case are simple and have been exhaustively reviewed in the briefs of counsel.

We note simply that respondent Glover, a convicted burglar brought a pro se 1983 claim against his state and county public defenders.

Warren E. Burger:

You limit your argument to public defenders, not to privately-retained defenders.

David B. Frohnmayer:

Mr. Chief Justice, the facts of this case, of course, just present the issue of public defender.

Some of the policies which we urge and favor, obviously, would extend to the whole gamut of counsel, although we do not argue their case precisely because we believe that the most forceful case for immunity, if immunity is to be granted, does in fact lie with the public defender institution.

William J. Brennan, Jr.:

Well, what of the private lawyer who is just appointed to represent an accused or a particular case?

He's in between the privately-retained counsel and public defender.

David B. Frohnmayer:


And the difference, Justice Brennan, is this... and whether the difference would cause any difference in result, of course, is open to question.

The difference is that the appointed counsel does have the option as to whether or not to accept a particular appointment, whereas those cases which come to the public defender office are ones which the public defender has no capacity to refuse.

The intake of that office is fixed; the risks may be high; and the public defender has no way of minimizing the risks of a highly litigious group of people.

William J. Brennan, Jr.:

But, nevertheless do not some of the suggestions you made in your initial summation apply as much to the appointed counsel as they do to the public defender?

David B. Frohnmayer:

Yes, they could.

We are simply suggesting to the Court that absolute immunity did apply to all counsel at common law with respect to defamation proceedings, and that if one locks at the contemporary policy and the contemporary structure of indigent defense, there is a continuum on which the strongest case, then, can be made for the public defender; a slightly less strong case made for the appointed counsel; and perhaps the weakest, but perhaps still an acceptable case, made be made for privately-retained defense counsel.

That's our position.

Warren E. Burger:

On the one point you made, I'm not sure it's consistent with history.

The public defender is not drafted for the assignment.

He volunteers, or she volunteers to become a member of the staff of a public defender; whereas, certainly, the tradition was that when a court called a private practitioner and asked that private practitioner to appear and defend a person charged, certainly the tradition was that the lawyer should not refuse but should accept.