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Friday, February 29, 2008

The New York Court of Appeals, Corrections Officers, and § 1983

Although it’s several months old, I just came across this fascinating (and rather disturbing) decision by the New York Court of Appeals from last November. In short, the Court of Appeals upheld section 24 of the N.Y. Correction Law, even though that statute precludes the New York state courts from entertaining any damages actions (including § 1983 claims alleging federal constitutional violations) by state prisoners against state correctional officers. In other words, the court sustained a state law that precluded state courts from entertaining, inter alia, federal question lawsuits raising constitutional claims.

To be fair, the statute, along similar lines to the federal Westfall Act, provides that any damages claim arising out of the official acts of a corrections officer can be brought in the New York Court of Claims as a claim against the state itself. But there’s a very serious constitutional question here: May states so thoroughly constrain (and perhaps even preclude) their own courts from entertaining such a federal question lawsuit?

I think the answer is a resounding “no,” but it requires a little bit of unpacking, which I attempt below the fold.

It is axiomatic that, as a general matter, the state courts are not just entitled, but obliged, to entertain federal question lawsuits by virtue of the Supremacy Clause. As a result, there are three general principles (as enunciated by Justice Stevens in 1990) that govern attempts by states to preclude enforcement of federal questions in state courts:

  1. A state court may not deny a federal right, when the parties and controversy are properly before it, in the absence of “valid excuse.”
  2. An excuse that is inconsistent with or violates federal law is not a valid excuse.
  3. When a state court refuses jurisdiction because of a neutral state rule regarding the administration of the courts, [the Court] must act with utmost caution before deciding that it is obligated to entertain the claim.

With regard to the New York statute at issue here, the Court of Appeals concluded that the statute was “a neutral state rule regarding the administration of the courts,” and thereby upheld it. According to the majority, “if a state does not extend jurisdiction to its courts to litigate a certain type of claim, it may deprive those courts of jurisdiction over a related federal claim. In that situation, there is no Supremacy Clause violation because there is no discrimination against the federal claim in favor of similar state claims.” Indeed, “[b]y restricting the forum for a certain type of claim to a particular state court, the Legislature did nothing more than exercise its prerogative to establish the subject matter jurisdiction of state courts in a manner consistent with New York's conditional waiver of sovereign immunity, which does not allow civil rights claims to proceed against the state in Supreme Court.”

There is a certain logic to the majority’s argument: New York isn’t facially discriminating against § 1983 claims; it is funneling all damages claims against corrections officers to the New York Court of Claims (where it substitutes the state for the officer-defendants). That’s why I think this presents something of a close case… But there are three independent arguments for why I think the majority’s analysis is ultimately incorrect:

First, section 24 of the New York Correction Law has the effect of immunizing officer-defendants in the Court of Claims. Because the statute substitutes the State of New York as a defendant in the Court of Claims, it effectively (if not formally) bestows absolute immunity upon state corrections officers from suit under § 1983. But as the Court held in Martinez v. California in 1980, “Conduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 . . . cannot be immunized by state law. A construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise; and the supremacy clause of the Constitution insures that the proper construction may be enforced.” (emphasis added).

Second, the State of New York cannot be held liable under § 1983, even in the New York Court of Claims. A long line of cases, dating back to Monell v. New York City Dep’t of Social Services and Will v. Michigan Dep’t of State Police holds that states are not “persons” within the meaning of § 1983. Thus, even though the New York Constitution waives New York’s sovereign immunity from § 1983 suits in the New York Court of Claims, § 1983 cannot be invoked against a State—sovereign immunity or no sovereign immunity. In other words, section 24 both (a) immunizes the officer-defendant; and (b) read together with the Supreme Court’s interpretation of § 1983, prevents the maintenance of a § 1983 claim against the State itself. In total, then, section 24 does not transfer jurisdiction over § 1983 claims against state correction officers from the New York Supreme Court to the New York Court of Claims; it eviscerates them.

Third, and related to the first two points, I’m pretty sure the Supreme Court has already rejected this argument—and unanimously at that—in Howlett ex rel. Howlett v. Rose, in 1990. There, the Court concluded that “the Florida court's refusal to entertain one discrete category of § 1983 claims, when the court entertains similar state-law actions against state defendants, violates the Supremacy Clause." One of the arguments presented in Howlett was that “a federal court has no power to compel a state court to entertain a claim over which the state court has no jurisdiction as a matter of state law.” In responding to this idea, Justice Stevens invoked a series of analogies:

It is settled that a court of otherwise competent jurisdiction may not avoid its parallel obligation under the Full Faith and Credit Clause to entertain another State's cause of action by invocation of the term “jurisdiction.” A State cannot “escape this constitutional obligation to enforce the rights and duties validly created under the laws of other states by the simple device of removing jurisdiction from courts otherwise competent.” Similarly, a State may not evade the strictures of the Privileges and Immunities Clause by denying jurisdiction to a court otherwise competent. As our discussion of Testa, McKnett, and Mondou establishes, the same is true with respect to a state court’s obligations under the Supremacy Clause. The force of the Supremacy Clause is not so weak that it can be evaded by mere mention of the word “jurisdiction.” Indeed, if this argument had merit, the State of Wisconsin could overrule our decision in Felder v. Casey, 487 U.S. 131 (1988), by simply amending its notice-of-claim statute to provide that no state court would have jurisdiction of an action in which the plaintiff failed to give the required notice. The Supremacy Clause requires more than that.

In other words, as Judge Jones wrote in his dissent in the New York Court of Appeals, “once a state opens its courts to hear section 1983 actions, it may not selectively exclude certain section 1983 actions by denominating state policies as jurisdictional.” Judge Jones's dissent also quotes an ABA guide to § 1983 litigation in state court for the proposition that: “The most flagrant example of a state court system selectively excluding § 1983 cases is the refusal of the New York courts to entertain § 1983 actions against state correctional officials.”

So it seems. And given the analysis above, I cannot see how such a hostile attitude to federal claims is possibly constitutional.

Posted by Steve Vladeck on February 29, 2008 at 03:05 PM in Constitutional thoughts, Criminal Law, Current Affairs, Steve Vladeck | Permalink


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Steve: I agree with you that substitution must be a question of the named defendant who will pay any judgment; once the nature of the merits changes, we are out of substitution. I was trying to broaden what we understand as the defect in the court's decision. It is not just, as you say in your second point, that the state could not be liable under § 1983. It is also that, even if the state could be liable (because Will means something other than what it says), the terms of liability are so different and so much greater than a § 1983 action against the officer. The state thus immunizing defendants and leaving in its place an alternative remedy that is far more difficult to obtain. Thus, to Trevor's question, I think Martinez does apply to this situation.

Posted by: Howard Wasserman | Mar 1, 2008 3:20:41 PM

Howard -- I think that's what I was getting at before, albeit inarticulately... if the defense to "discrimination" against federal claims is that it's merely "substitution," is it really true that the difference is merely who pays the damages award, and not at all a difference in the merits of the case? If so then, as with Trevor, I'd be much less bothered. If not, it strikes me that there could be a very serious problem...

Posted by: Steve Vladeck | Mar 1, 2008 3:07:57 PM

To jump in with a slightly different point on substitution. Could there be true substitution in the § 1983 context, since the terms of liability for the individual officer are so different than they would be for the State, *even if* the State were suable under § 1983. Is there true substitution if to prevail against this substituted defendant, the plaintiff must prove not only the violation by the individual officer, but also that the violation was due to state policy or failure to train with deliberate indifference (as required for entity liability)?

Posted by: Howard Wasserman | Mar 1, 2008 1:51:55 PM

Trevor -- I wasn't suggesting that the prior cases suggest that there would be a problem here even _if_ the state were suable under 1983; I was just suggesting that the cases didn't _compel_ the contrary conclusion. But I hadn't considered the indemnity question in this context, which makes a lot of sense to me (and probably provides the answer).

I guess the real question here is whether Testa et al. preclude states from benefiting (whether intentionally or accidentally) from the Supreme Court's sovereign immunity jurisprudence the way that New York did here... I take the majority of the N.Y. Court of Appeals (usually a pretty thorough bunch) to be relying on the fact that the Will problem is not one of New York's creation... If, ultimately, that doesn't matter, then perhaps this provides a bizarre example of the Rehnquist Court's sovereign immunity jurisprudence actually _undermining_ state policy...

Posted by: Steve Vladeck | Mar 1, 2008 1:06:12 PM

Well, it's true that 1983 is the one area where the Court has been most reluctant to view a state rule barring review as "neutral" within the meaning of Testa. So one can't say for sure. But it seems to me that if a state law simply had the effect of substituting defendant Y for defendant X without changing any of the underlying law, and did so with respect to both state and federal claims, that would be a pretty good candidate for a neutral rule. I don't see how Martinez or anything else can credibly be read to the contrary. What would confer on a 1983 plaintiff a right not only to a recovery, but a right to insist that the award be paid by a particular person and not his employer? If there were such a right, would the indemnity agreements that are standard between many state (and federal) officers and their employers be impermissible?

All of which is to say that the real problem in this case is not the complete immunity of the officer but that immunity PLUS the unsuability of the state under 1983. That's your second point in your original post, and I'm inclined to agree with it (subject to the question I've raised about substitution, but it doesn't sound like NY law provides for actual substitution anyway, in which case this case doesn't really implicate my question).

Posted by: Trevor Morrison | Mar 1, 2008 12:01:42 PM

Trevor -- Thanks for the comment. I, too, don't know the answer to your question, although on a quick re-read of Will, it sure looks like the Court was interpreting 1983 as a general matter.

It strikes me that if that's true (i.e., that states are not "persons" under 1983 even when they don't have sovereign immunity), this is actually an easy case. What I was trying to get at in my first point is whether, even if the state could be sued under 1983, would this be consistent with Testa et al.? I may be overreading Martinez on this point, and the question may not be settled, but it strikes me as not necessarily obvious that the New York Court of Appeals would have been right in reaching the opposite conclusion.

Posted by: Steve Vladeck | Mar 1, 2008 10:12:44 AM

Nice post, Steve. Your second and third arguments against the NY Ct App's decision are quite strong, I think. But I'm not sure about the first one. In the context of the Martinez case, which involved a state law immunizing both state officers and the state itself from certain kinds of claims, I think the footnote you quote may be best read to say that state law cannot grant absolute immunity from 1983 claims in a way that leaves the plaintiff with no remedy. But that's different from a substitution mechanism, which effectively grants absolute immunity to the officer by replacing him with another entity. I don't think Martinez by itself can be read to bar that sort of thing.

If I'm right there, then your first point on its own doesn't really establish a problem with the NY Ct App's decision. It's your second point that identifies the problem -- that 1983 doesn't reach the state itself, per Monell and Will. If that weren't the case -- i.e., if the state were suable under 1983 in this context -- then I don't see why Martinez would bar absolute immunity for the officer.

Which raises a question to which I don't know the answer (and haven't bothered to research). If the mechanism under state law were literal substitution (as under the Westfall Act for the fed gov't), is it clear Monell and Will would bar a 1983 suit? That is, can substitution provide a way around the rule that 1983 doesn't cover suits initiated against states in the first instance? I genuinely don't know the answer to this question. Does anyone?

Posted by: Trevor Morrison | Mar 1, 2008 9:12:54 AM

Thank you so much, Steve. You've just provided me with one of my fed courts exam questions!

Posted by: Teacher | Mar 1, 2008 1:27:15 AM

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