MOOR v. COUNTY OF ALAMEDA
Legal provision: Reconstruction Civil Rights Acts (42 USC 1983)
Argument of Ronald M. Greenberg
Chief Justice Warren E. Burger: We'll hear arguments next in number 72-10, Moor against Alameda, the County of Alameda.
Mr. Greenberg, you may proceed whenever you are ready.
Mr. Ronald M. Greenberg: Mr. Chief Justice and may it please the Court.
For purposes of this appeal, the facts are not really in dispute in this case.
What happened essentially is that on May 15, 1969, our clients, David Moor in one case and the plaintiff William Donovan Rundle, Jr. in the other case were shot by an Alameda County Deputy Sheriff in connection with the People’s Park disturbances in Berkeley.
Subsequently, a suit was filed, actually two suits against the Deputy that shot our clients, his superior officers for their own acts and the County of Alameda.
The concern here is only with that aspect of the case against the County of Alameda.
What's involved here are three separate and distinct concepts of federal jurisdiction.
The first is Civil Rights Acts jurisdiction, the second, pendent jurisdiction and the third, diversity jurisdiction.
The diversity jurisdiction issue relates only to the Moor case.
It has no application whatsoever to the Rundle case.
Of these three issues, we would submit that the clearest example of error by the Court below is in connection with its ruling on the diversity issue.
For over 100 years, this Court, Courts of Appeals, District Courts and at least two District Courts within the Ninth Circuit have consistently held that political subdivisions of a state such as the County of Alameda are considered citizens of the state for diversity jurisdiction purposes.
For some unexplained reason, we have the rather anomalous result that with respect to California counties, they are presently not considered citizens of California for diversity jurisdiction purposes.
Justice William H. Rehnquist: Mr. Greenberg, is it your position that, that is a nationwide rule in effect that regardless of the relationship of a county to a particular state, it should be one rule throughout the country?
Mr. Ronald M. Greenberg: Barring at least a circumstance which would show that the state is in essence, the real party in interest in the case is correct and I can't think of a political subdivision such as a county in any state in the union where that would be the case.
Consistently, in every case we have researched on the point, it has always been that the county is separate and distinct from the state.
Taking this case for example, anyone who is familiar with California Law and California politics would have to concede, that the state of California is not the real party in interest in this case, no liability is being sought against it.
If we procure a judgment, it won't be liable for it.
Indeed, it's not even a party and interest, let alone a real party in interest.
So, for those reasons, I would urge on the Court that even if we are successful with respect to the Civil Rights Acts jurisdiction contention or the pendent jurisdiction aspect or both, that Court also reversed the diversity aspect jurisdiction holding.
I know for a fact that it has had serious effect for example, on out of state contractors, who wish to sue counties upon which, with which they contract in the state.
As a result, of the holding in this Court, there is diversity jurisdiction.
County is not a citizen and there is just no explanation given for that --
Justice Potter Stewart: This was always kind of an off-hand casual way I gather, the Ninth Circuit originating with a brief opinion by the late District Judge Mathis that was accepted by the Ninth Circuit and then everything else was built on that?
Mr. Ronald M. Greenberg: There are really only two opinions by the Ninth Circuit that even enunciate that point.
One is the Miller case which was a pro per case and then our case in which it was cited as authority.
I think, one could search both of those opinions in vain to find any reasoned analysis as to why in essence, the court feels that the state of California is somehow the real party in interest in our case and that's really what you have to conclude, to conclude it's a state agency.
Justice Potter Stewart: In other cases and you are quite correct in my understanding that there are many of them which do hold that a county is a citizen for diversity purposes.
Is there any analysis of the particular relationship between the County and the State in the --?
Mr. Ronald M. Greenberg: I would say, two clear examples of the two District Courts within the Ninth Circuit who have refused to follow the Ninth Circuit holding, the Oregon case and the Arizona case, which at length analyzed the nature of the county and showed quite conclusively that it wasn't the state of Oregon or the state or Arizona.
There are other cases that are cited in our brief which also engage in this kind of analysis.
Indeed, some of them say that's the kind of analysis you should make, when a claim is made, that the particular defendant is as in essence a state agency.
No such analysis was made here.
We have briefed at length in our brief all of the powers and functions of the County of Alameda that distinguish it from the state of California.
I think, both the county and the state would be surprised if they found that they were considered one and the same.
Justice William H. Rehnquist: Why is the state not a citizen of the state?
Mr. Ronald M. Greenberg: Starting with the Eleventh Amendment, you can't sue a state, the ---
Justice William H. Rehnquist: Well, but of course, that's a different reason.
I mean, in one case you should be saying there is an affirmative defense based on the Eleventh Amendment, in the other case you are saying there is not the basic prerequisite for jurisdiction?
Mr. Ronald M. Greenberg: I think that this Court has held and many courts have held that a state cannot be a citizen of itself and that's a firmly established rule that we don't even question in this case.
We're not here contending that the state is even a party, let alone a real party in interest.
We will live with that holding.
Justice Byron R. White: You say the state is -- part of your assertion is that the county is not equivalent to state?
Mr. Ronald M. Greenberg: Correct.
Justice Byron R. White: Although it is a subdivision of the state?
Mr. Ronald M. Greenberg: That is correct.
It's clearly not -- the state is clearly not the real party in interest in this case.
Turning next to --
Chief Justice Warren E. Burger: What about the Municipal corporation chartered by the state?
Mr. Ronald M. Greenberg: They have long been held to be citizens of a state for diversity jurisdiction purposes and the most recent enunciation by the California Supreme Court has said that counties are quasi corporations of that nature.
Turning next to the Civil Rights Act's jurisdiction aspect of our appeal, I think, you have to take it step by step and the first question is, does Section 1983 allow for the doctrine of respondeat superior, that's the first basic question.
If one was to look at Hesselgesser versus Reilly, McDaniel v. Carroll, Lewis versus Brautigam, clearly, it seems that conceptually there is such allowance.
An additional case which I would add which is not cited in our brief, but which specifically discusses this point is a case called Hill versus Toll, 320 F. Supp. 185, at pages 188 and 189 which involved Pennsylvania law.
And briefly the court there addressed itself specifically to the respondeat superior concept and said in essence as regards to this case, we note that the well settled doctrine of respondeat superior is not expressly abolished by Section 1983, nor does the legislative history make it clear that Congress intended the doctrine not to apply to Section 1983.
Further, the salutary reason for the doctrine’s application, the Common Law Torts, i.e., the furnishing of a deep pocket from which a claimant can collect, argues just as forcefully for its application to the cause of action created by Section 1983 and conversely, we find that it is no wise less appropriate to apply respondeat superior to Section 1983 than to Common Law Torts.
Accordingly, we now decide consistent with the traditional injunction that remedial statutes are to receive a liberal construction that respondeat superior is impliedly a part of the Civil Rights Act.
Now, once you accept that premise, you next look to the source of that vicarious liability.
We are not here arguing today, that the source of that liability is Section 1983.
We are not here arguing that the source of that by vicarious liability is any other Civil Rights Act, Federal Law, rather we are saying the source of that vicarious liability is the California Tort Claims Act, State law.
Just as the source of the Sheriff's vicarious liability in Hesselgesser, the Sheriff and Sheriff Madigan (ph) vicarious liability in McDaniel and the Sheriff's vicarious liability in Lewis were State Law, no difference.
Justice Byron R. White: How does in California cases that rule over that the -- that also, that the county may not be a plaintiff.
It must be for purposes of diversity jurisdiction?
Mr. Ronald M. Greenberg: To my knowledge, no case has been cited to us and as result of the Tort Claims Act, the law says the county can sue and be sued.
We presume that when it says the county can sue, it means, it can be a plaintiff, as well as, a defendant.
Specific authorization was given in 1963 by the California law for that.
Now turning then to the source of liability, two rather anomalous results would occur if the defendant’s position is adopted and they are as follows.
Up until 1963, the California law was that the sheriff was vicariously liable for the Torts committed by his deputy.
A case called Reynolds versus Lerman, 138 Cal. App. 2d 586 specifically held that.
When the Tort Claims Act was enacted in 1963, Section 820.8 was enacted which specifically says that one public employee cannot be vicariously liable for the acts of another public employee, rather it's the employing public entity.
Now, the whole policy of the Tort Claims Act was obviously to place ultimate financial responsibility where it could best be realized and to allow the party injured by a public employee opportunity for meaningful redress.
Yet, if we adopt the defendant’s position, where California sought to increase the likelihood, that a plaintiff might recover for the wrongs of their public employee, we would have the opposite effect in this case because we would say in essence that well, he could have sued the sheriff vicariously under cases such as we have discussed, somehow he can't sue the county.
Chief Justice Warren E. Burger: Does the California Tort Claims Act have an exemption or exception with respect to governmental discretionary functions?
Mr. Ronald M. Greenberg: No, and in this case, there would be no such exception that would apply.
Chief Justice Warren E. Burger: Well, do they have any in the act itself?
Is there one comparable to the Federal Tort Claims Act?
Mr. Ronald M. Greenberg: Not to my knowledge.
Second, the logical result of the defendant’s position is simply not only, that a Federal Court cannot impose that state created liability, but because Congress did not intend for public entities to bear this ultimate liability that a state court can't even impose it and indeed, a state can't pass such a law.
And yet, I cannot imagine that the defendants are here even taking the position that California as a matter of its law doesn't have authority, power or what have you to pass a law saying that its public entities will be vicariously liable for the torts of their employees, including Civil Rights Act's violations.
That's a state law determination.
That's is a state policy determination.
And the only next question then becomes, can a Federal Court also impose that state created liability?
To that, we look to 1988 and Section 1343.
Now, 1988 is not a jurisdictional section.
It doesn't create any cause of action, it doesn't confer any jurisdiction.
Title 28, 1343 confers jurisdiction on the Federal Courts to enforce and in the words that I believe, any act of Congress which is provided for the protection of Civil Rights.
Looking at Section 1988, if it's not an act of Congress, I don't know what it is and if it wasn't designed for the protection of Civil Rights, I don't know what it was passed for.
It clearly falls within that language and thus there is no violation to Monroe, to 1983 or to any other Civil Rights Act provision by saying that the Federal Court can utilize 1988 in the fashion it was intended and have jurisdiction to impose that state created liability.
This then brings me to the final jurisdictional contention we make, and which is perhaps the most difficult.
That is, if we assume arguendo that by some quirk 1988 doesn't mean what it says, that the California Tort Claims Act cannot impose this vicarious liability, but can at the same time impose vicarious liability for the state battery or state negligence, wrongs committed by the public employee.
Can the county be joined as a pendent party on the pendent state claims that are otherwise before the court?
Now, in a sense, we have something like and Astor-Honor type analysis because you do have a Federal Statute which can be construed along with pendent jurisdiction really to bring about the result of joining the county.
But taking it just in the abstract for the moment, we're concerned here with the concept of judicial power, not discretion.
There is no opinion from this Court that we are aware of that has precisely discussed the joinder of a pendent party.
The trend since Gibbs has been certainly that pendent jurisdiction can be utilized, that the considerations and policy which led to its liberalization and were further liberalized in Rosado, and that if the criteria otherwise available for pendent jurisdiction, there was at least the power to join a pendent -- perhaps a pendent party.
Now, in the Courts of Appeals, the Second, Third, Fourth, Fifth and Eight Circuit Courts of Appeals have expressly recognized this judicial power.
The Sixth Circuit by implication has recognized this power, yet the Ninth Circuit stands alone.
It is the only circuit to our knowledge which expressly holds that pendent jurisdiction does not allow for the joinder of parties, only claims.
Taking this case for the moment, if we look to the traditional test, does the claim arise out of the nucleus of operative fact, clearly, there isn't even an additional fact involved with respect to the county’s liability because it's vicarious and the dependent solely upon that liability of the individuals.
Justice William J. Brennan: Well, if you are right your diversity jurisdiction point, we don't reach this, do we?
Mr. Ronald M. Greenberg: That's not correct.
Diversity is only in Moor.
One must get to Civil Rights Act jurisdiction and/or pendent jurisdiction.
Justice William J. Brennan: No, I was thinking about the pendent jurisdiction argument.
That's only in Moor?
Mr. Ronald M. Greenberg: No, that is in both.
Pendent jurisdiction, if we are correct on diversity in Moor, then in theory, the Civil Rights Acts jurisdiction contention and the pendent party jurisdiction aspect may not have to be reached although there would be an open question as to whether or not as to the federal causes of action, if the county was joined on diversity, it could -- there would still potential liability.
Justice William J. Brennan: What's the other case?
Mr. Ronald M. Greenberg: Rundle.
They are companion cases as they were consolidated for appeal.
Justice William J. Brennan: Say again, if you were right on your diversity point and then you don't have to reach any other questions in Moor, is that right?
Mr. Ronald M. Greenberg: With the possible exception of 1988, the Civil Rights Act because the diversity jurisdiction question would leave open whether or not the county was vicariously liable for the Civil Rights Act.
Justice William J. Brennan: It's a small question?
Mr. Ronald M. Greenberg: That's correct and in that sense, one would not have to reach it.
Justice William J. Brennan: No, unless it was the action.
Now, what would we have to reach in Rundle, assuming we agree with you on your diversity?
Mr. Ronald M. Greenberg: Neither or both, the Civil Rights Acts jurisdiction and --
Justice William J. Brennan: Because finding a diversity jurisdiction in Moor, doesn't answer either question?
Mr. Ronald M. Greenberg: No.
They are separate cases.
The plaintiffs in Rundle are California citizens, the plaintiff --
Justice Byron R. White: Also, there is no possibility about the kind of diversity in that --
Mr. Ronald M. Greenberg: No, it was never even raised, never argued, both of these people were shot at the same time in same place and perhaps with the same shot.
That's why the two cases were brought together, they involved all of the same issues factually with respect to ultimate liability.
The only distinction that Moor has is he is an Illinois resident and as a result, we were able to raise the diversity jurisdiction issue, but Rundle has to be resolved by either a resolution of Civil Rights Acts jurisdiction and/or pendent party jurisdiction.
Justice Potter Stewart: Is it either/or in your view?
I mean, deciding in your favor on one of those that would give you all the relief to which you think you are entitled?
Mr. Ronald M. Greenberg: Clearly, if we decide on the basis – well, if you decide that there is a Federal jurisdiction under the Civil Rights Acts, then you really don't have pendent party joinder anymore, you just have traditional Pendent jurisdiction joinder because now you are joining claims against whom you, a party --
Justice Potter Stewart: You already have the party in your 1983 action?
Mr. Ronald M. Greenberg: Yes, right.
Justice William J. Brennan: Well, then you must be suggesting, you have to reach in Rundle, the pendent party if you treat Moor as proper diversity case?
Mr. Ronald M. Greenberg: Correct.
Justice William J. Brennan: And then you have to get to the pendent party to bring Rundle in --
Mr. Ronald M. Greenberg: Or --
Justice William J. Brennan: Even if you lose out, if you lost out on the 1988?
Mr. Ronald M. Greenberg: Correct.
Justice Potter Stewart: To bring the county in?
Mr. Ronald M. Greenberg: Pardon?
Justice Potter Stewart: To bring the county in?
Mr. Ronald M. Greenberg: To bring the county, correct.
There are pendent state claims now pending against the deputy and the other individuals.
Justice Byron R. White: But just saying you can join a party through pendent jurisdiction, that tells us what kind of a claim that party might have?
Mr. Ronald M. Greenberg: No, one would think you would clearly have the state law claims.
Justice Potter Stewart: Well, is that all you are saying?
Are you saying that you can join the Federal Claim?
Mr. Ronald M. Greenberg: I am saying as follows.
In this order, the scope of the Civil Rights Act covers both the Federal and State claims.
There is no dispute that it covers the state claims and for some unexplained reason, the defendants have not briefed in their brief to the court any argument that the California law does not also cover the Federal claims.
So, perhaps they have abandoned that, I don't know.
However, true Pendent Party Joinder in one sense would be only joining the county on the pendent state law claims without regard to the federal claims because once you say that the county also has vicarious liability for the federal claims then I think you clearly within 19 -- you have to deal with 1988 and then you get into an independent basis of Federal jurisdiction through 1343, because now you are talking about imposing a vicarious federal --
Justice William J. Brennan: I don't -- what I don't understand, Mr. Greenberg, if you prevail in Moor on the diversity point and also prevail on the pendent party claim, why haven't you got everything you want?
Mr. Ronald M. Greenberg: Oh!
I have had everything I want.
Whether -- if I prevail on diversity --
Justice William J. Brennan: And on the pendent party --
Mr. Ronald M. Greenberg: -- and Civil Rights Acts jurisdiction or pendent Party.
Justice William J. Brennan: I don't know, pendent party only.
I am asking you, if you prevail on diversity and your pendent party point what more do you want?
Why do you have to have Civil Rights jurisdiction?
You have got state law then, don't you, vicarious liability?
Mr. Ronald M. Greenberg: It's all state law vicarious liability that's being imposed.
Justice William J. Brennan: Then don't you have enough?
Mr. Ronald M. Greenberg: Correct, if I could get the county into the case.
Justice Harry A. Blackmun: (Inaudible) suppose we decide the point that would it been possible for you to get everything you want in the state law and in the state court action?
Mr. Ronald M. Greenberg: Theoretically yes because there is concurrent jurisdiction on the Civil Rights Act, but I think that we tried to explain to the Court on our brief that given the nature of this case which involves Federal Constitutional Rights.
If there is a type of case that really should be brought in a Federal Court, I would think this is the type and I don't think -- and I think it's a to go -- this Court has said before that merely because you can go to the State Court isn't grounds for denying your choice for a federal forum for a adjudication of your Federal Constitutional Rights.
Justice Harry A. Blackmun: That's is true of course in almost all of these cases, but at least you wouldn't be up here and battling the jurisdiction?
Mr. Ronald M. Greenberg: No, but I might have been similarly thrown out of the state court altogether.
Justice Lewis F. Powell: (Inaudible) the court's power under pendent jurisdiction.
That's a matter of power, but would you not still have the problem of whether or not the Court, in its discretion did not have, a wide discretion in refusing to exercise the power in a particular case?
Mr. Ronald M. Greenberg: No question about it.
If we concede that the power exists, the next question is discretion.
However, I think any fair reading of the District Court's opinion in this case will show that it never reached the discretionary aspect.
It specifically said, the issue is not one of discretion, but rather lack of power.
The district court further said, it intimates no view on how he would decide the case, if he was possessed of the power but because of Hymer versus Chai, the Ninth Circuit opinion which specifically said, there is no power for that joinder, the district court never reached that.
There would not be discretion however with respect to Civil Rights Acts jurisdiction, if we are correct.
I would reserve the rest of my time.
Chief Justice Warren E. Burger: Very well Mr. Greenberg.
Argument of Peter W. Davis
Mr. Peter W. Davis: Mr. Chief Justice and may it please the Court.
I think the analysis of this issue must first start with plaintiff’s concessions which are that he has not and cannot state a cause of action against the County of Alameda under any Federal Law.
He is only asking this Court to have a Federal Court, here state law, California causes of action against the County of Alameda and he is asking the Court for an expansion of Federal jurisdiction in three regards.
He is asking the Court to incorporate an entire body of California law through 1988 and then pretend that that's an act of Congress within the meaning of Section 1343.
He is asking the Court to expand the concept of pendent jurisdiction to bring in a party defendant not otherwise before the Court, against whom no federal cause of action has been stated, just because there was a related cause of action in the court against other parties.
And third in the Moor case only, he is stating that there is diversity jurisdiction because the County of Alameda is a “citizen” within the meaning of diversity jurisdiction Section 1332.
Taking the 1988 argument first which is the most difficult one, I think that there are at least three major objections to bringing in a state body of law under that Section for the purpose of giving the federal court jurisdiction of the state law cause of action.
First from the language of the Section itself and from the report of decisions, it does not appear that Section 1988 was intended to create a cause of action, in fact plaintiff concedes this, or intended to confer a jurisdiction or intended to do anymore really than provide supplementary damage remedies to the district court on a cause of action, a case over which it already has jurisdiction against the party over which it already has jurisdiction.
And the language of the Section, it says in itself, that the statutes of the state were in the court having jurisdiction of such civil or criminal causes held shall be extended to and govern said course in the trial and disposition of the cause.
We submit that Section 1988 should not be used to wholesale incorporate state law causes of action for torts of any kind or by vicarious responsibility.
Justice William J. Brennan: This is an argument I take it that under 1983, in light of Monroe and Pape, there could be no action against the county?
Mr. Peter W. Davis: That's correct.
Justice William J. Brennan: And therefore, since there is no jurisdiction over the proceeding against the county, you can't bring in 1988 to infuse California law, is that it?
Mr. Peter W. Davis: Yes.
Justice Byron R. White: Under the Federal cause --
Justice William J. Brennan: There is no Federal cause of action.
Mr. Peter W. Davis: There is no federal course of action.
He was talking about bringing in a State Law cause of action.
Justice William J. Brennan: Well that's what he says there is no federal cause of action in the 1983 against county?
Mr. Peter W. Davis: And they have admitted that.
Justice William J. Brennan: Right, under Monroe and Pape.
Mr. Peter W. Davis: Right.
Justice William J. Brennan: And your argument probably is that therefore there is no jurisdiction in the sense required by 1988 before you can go on to state law?
Mr. Peter W. Davis: That's correct.
I am saying that 1343 requires an Act of Congress and that's the jurisdictional statute and using 1988 to incorporate an entire body of state laws, is not an act of Congress, it's an act of the state legislature.
Justice William J. Brennan: Alright.
Mr. Peter W. Davis: And in addition to that, plaintiff has not met at all the arguments that you cannot use 1983 simply by its own terms where there is an adequate remedy, the Federal remedy is adequate and you cannot use it to bring in an inconsistent state law and both of those considerations are present here.
As has been pointed in our brief and as pointed out by petitioner in his brief, what California did in this case, instead of providing for the direct liability of public entities in this type of situation in 1983 suit, they said that, where the employee requested, the county must defend and indemnify the employee under government code sections 825 and 895.
In other words, it's an indirect assumption to get at this principle of deep pocket, if you will, or provide a responsible defendant and that has been done in this case, as alleged.
The county is conducting the defense of all the employees.
Furthermore, it's also pointed out the employees have their own insurance of $200,000 or more.
Now, the argument raised here has been that the employees are judgment proof and I submit that the petitioners have been less candid with the Court in making that kind of an insertion because it's quite obvious that the individual defendants are not judgment proof in any sense of the word and plaintiff’s remedy is perfectly adequate under section 1983, 1985, 1986 against the five individual defendants and that precludes application of State Law under section 1988.
Furthermore, it has been held in Monroe, the legislature when it passed the 1871 Act intended to exclude public entities.
Now, the argument is made here that well, if the 1871 Congress were transported to the 21 century or the 20th century and in light of the fact that some municipalities and states have conditionally waved sovereign immunity, they would have intended something different or pass a different act but that's not the point.
As was held in Ries versus Lynskey, what we are looking at is what they intended at that time and they intended at that time to exclude public entities.
There motive in doing so is not relevant to statutory interpretation.
And you get points very clearly established in Monroe and I think it's binding here.
To bring in then the public entity through 1988 is interrogation of the in derogation of Congress.
It's clearly against what Congress said they wanted to do at that time, that is exclude public entities.
And for that reason also, then 1988 could not be used to incorporate this body of state law and I would refer the court also to the brief of the District of Columbia in a related case of District of Columbia versus Carter which is recently reversed by this Court.
We discussed in some length the motives of the Congress and there are several references there.
I did not brief this at length because it was in his brief and I didn't want to duplicate it.
Finally, I would point that Monroe has been on the books for something like 12 years now and in the interim, Congress has enacted several major civil right legislations and has not changed to rule and they have been asked to do so and I think that is indicative of the situation.
I don't think this Court should now try and change the rules of municipal liability in civil right actions, if Congress wants to do so and that's up to them.
Alright second -- as to the issue of -- well, I should point that one other thing.
There really isn't reason to make this kind of a change.
Plaintiff not only has a remedy in State Court, he has acted on it.
There is a case pending in the State Court with the identical issues.
In fact, the complaint is identical, it's been answered, it's at issue.
Justice William J. Brennan: Who is the defendant to that?
Mr. Peter W. Davis: The same defendants.
The five individuals in the county of Alameda.
That's pending in the state.
That is not theoretical remedy at all.
That's very practical remedy which he has taken advantage of.
Justice Byron R. White: Alright, who is the plaintiff?
Mr. Peter W. Davis: Rundle.
Plaintiff Moor filed a claim, but maybe due to small size of the case, did not file a complaint.
Under California law, you have to file a claim first and then file a complaint after it is denied, if it is and that was done in both cases, but a complaint was only filed on behalf of one of two defendants or plaintiffs.
Justice William J. Brennan: That is under the Liability Act applicable to municipalities and counties?
You have to file a claim first before you sue?
Mr. Peter W. Davis: That's correct under the Tort Claims Act.
Chief Justice Warren E. Burger: You have mentioned this liability insurance earlier, enlarge a little on that will you?
The county does not carry --
Mr. Peter W. Davis: Outside of the record, all of the individual defendants are individually insured for, I believe, it's 200,000 for one injury and 500,000 or 800,000 for all injuries.
There is an individual insurance applicable to all of them and that is in addition to the county having to indemnify and defend the employees when they are requested to do so.
Now this does not apply to punitive of damages.
This is to compensatory damages also and as to the --
Justice Potter Stewart: The compensatory damages only?
Mr. Peter W. Davis: Yes.
Typically, this rule does not apply to punitive damages under the California Tort Claims Act of states.
Justice William H. Rehnquist: Is that in substitution for liability of the municipal corporation or is it in addition to that?
Mr. Peter W. Davis: In the case of a Federal Civil Rights Act, I would take the position that it's in substitution for it.
In the case of an act under the California Tort Claims Act, it's in addition to it.
Justice William H. Rehnquist: That is why the county is joined and the State Court action.
I take it is a proper party under California state law?
Mr. Peter W. Davis: That's correct.
He is sued in California under California Tort Claims Act and joined the county.
Now there are some issues as to whether the county is responsible directly under the civil rights action and state action, but since the county is a party anyway under the state action, it makes no practical difference and that issue has not been asserted by the county so far, because it is a practically of no significance at all.
The other thing I think is appropriate to point out is that, as been discussed before, it makes more sense in a lot of ways to go out the indirect assumption of liability and require in Federal Civil Rights cases that the individual employees be located and served.
Now, in my own experience, I found us to be true and this was pointed out by the court in Reis versus Lynskey in the Seventh Circuit that when you bring in an individual defendant and then you make him a defendant and then you take his deposition and you make him attend the trial, it has a very profound effect on you and it has a very sobering effect on you, win or loose.
Whereas, if you allow plaintiffs to sue in amorphous public entity, the individual employees do not seem to feel so responsible for their own actions that there is somebody out there that's going to take care of this, they don't have to worry about it.
Justice Byron R. White: That leaves an alternative to be invoked and achieving both?
Mr. Peter W. Davis: Well, that's also possible, but as a practical matter if you allow suit against the public entity, you don't get suits against the individuals offer.
Chief Justice Warren E. Burger: Didn't you say the counties are joined with the policemen in the state action?
Mr. Peter W. Davis: In this particular case, they are, but in many, many cases, they are not.
We can sue the county.
Chief Justice Warren E. Burger: Clear up one the thing for me
You said the insurance does not cover punitive damages, does the obligation of the county to indemnify the employees cover punitive?
Mr. Peter W. Davis: No.
It's specifically excluded under Section 8-18 and it's like government code.
Justice William J. Brennan: And the Tort Claims Act, I gather?
Mr. Peter W. Davis: In the tort, that's part of the Tort Claims Act, yes.
Chief Justice Warren E. Burger: In other words, if it's something that generates punitive damages, the policeman is on his own frolic (ph) or the employee is on his own?
Mr. Peter W. Davis: That's correct.
The feeling being that punitive damages are not to compensate, but to punish and that the individual, they wouldn't punish, unless the individual defendant himself feels some.
In other words, they have to be rewarded against to him individually.
To answer one your earlier questions, however, Chief Justice Burger, there is a discretionary immunity section --
Chief Justice Warren E. Burger: Would you raise your voice a little?
Mr. Peter W. Davis: I am sorry.
Chief Justice Warren E. Burger: I think if you get more near to the center of that microphone.
Mr. Peter W. Davis: I am sorry.
There is a discretionary immunity section in the Tort Claims Act being Government Code Section 820.2 in response to your earlier question, Mr. Greenberg --
Chief Justice Warren E. Burger: Essentially, like that of the Federal Act?
Mr. Peter W. Davis: Yes, Your Honor.
Chief Justice Warren E. Burger: Well, are you suggesting that might reach all police action?
Mr. Peter W. Davis: No.
Chief Justice Warren E. Burger: By the county?
Mr. Peter W. Davis: In this case, no.
But I do suggest that it relates -- it does reach a considerable amount of the claims against the superior officers.
One final issue on this point and that is whether California does provide a direct right of action.
And I think that it can most clearly be seen that it does not by reference to the California Law Revision Commission statement which was referred to by plaintiff in his brief.
Justice Byron R. White: Is that what they presented right here?
Mr. Peter W. Davis: It makes a difference --
Justice Byron R. White: (Inaudible) so far, does it make any difference?
Mr. Peter W. Davis: No, it does not.
Justice Byron R. White: Okay.
Mr. Peter W. Davis: If I may though, Mr. Justice White read, the issue relevant to the present study of course is whether public entities not withstanding their immunity from direct liability under the Civil Rights Act should assume financial responsibility (whether through payment of insurance premiums to protect their personnel or through assumption of payments of judgments against such personnel) for violations by their police officers of that act.
By analogy the suggestions offered earlier I just believe that considerations should be given to adoption of statutory procedures under which entities in California would be required to resume -- to assume ultimate financial responsibility for such torts to their police officers and as precisely what they did under Section 825 and 895.
Now plaintiff says, they did not specifically exclude 1983 actions, which you have to recall and this is the wake of Monroe versus Pape and as they discussed there, the legislature knew they were already excluded.
There wasn't any reason to make a super or an extra exclusion for that point.
And what did they do is provide through 825 and 895 to defend and indemnify in such actions instead of having the public entity a direct defendant in the Federal Court.
There is also the point present here that putting the action -- putting the public entity directly into a Federal 1983 action would seriously complicate the jury instructions, I believe, that would be present in the case.
As I pointed out in our brief, there are large number of defenses and immunities that are applicable under the California action which then would become present in the federal case as to the entity.
Now petitioner properly points out that under the pendent jurisdiction claims against the employee, some but not all of these defenses would be present anyway.
It seems to me that you are going to have a situation where you are going to tell a jury that as to the federal causes of action, you have these three defenses applicable and as to the state law causes of action, you have these 4 - 5 others applicable, as to the employees, but as to the public entity, you have six others applicable whether it's a state law or federal law cause of action and then you are going to tell the jury that the public entity can only be held liable vicariously through the state and the jury is going to say, what are you trying to say?
It's a ridiculous situation and it's an unnecessary situation to overly complicate the case.
I feel that given -- a jury given that kind of instructions cannot possibly follow the law.
Justice William J. Brennan: Now let's see, this is an argument addressed to the second point of pendent parties?
Mr. Peter W. Davis: That would also be an argument addressed to the discretion issue on the pendent parties, but I think it is an argument that's present here when the plaintiff says he wants to bring in a state law of causes of action wholesale through 1988.
I think it is not only unnecessary, but it's unwise.
Justice Byron R. White: And what about (Inaudible) with respect to Moor?
Mr. Peter W. Davis: Diversity is a problem.
I think logically --
Justice Byron R. White: But if you agree, it's not a question of (Inaudible)
Mr. Peter W. Davis: That's correct.
I think logically, as pointed out by the constitution statutes of the state and by the county of Morin case cited, a county is simply a public --.
Justice Byron R. White: Let me get it straight.
If their claim is diversity here with respect to Moor and assume that the you won in Rundle, would Rundle’s case be pendent to Moor?
Your argument will take care that to I suppose, wouldn't it?
Mr. Peter W. Davis: That is close to the situation in Hatridge.
You mean, if the county is properly in the Moor case, under diversity, are they then pendent because the cases are consolidated and I agree that makes a much tougher case.
It's one that thought about.
Justice Byron R. White: And if you are wrong on diversity then this -- do we have to face up to the --?
Mr. Peter W. Davis: Yes, I would take the position that even though it makes more sense in that situation than in the instant situation, I think that it's still is an extension of pendent jurisdiction which is not authorized.
Justice William J. Brennan: Well, in the discretionary sense.
What we decide that here?
If you are wrong on diversity, should we decide the pendent question here?
Mr. Peter W. Davis: The pendent question correct, yes.
Justice William J. Brennan: I know, but should we decide it here or should we send it back, if you are wrong on diversity?
Should we send it back and let the court below decide it first?
Mr. Peter W. Davis: You would have to decide whether there is power in any event.
As to whether there is discretion, I think that the Ninth Circuit has said that as a matter of discretion they would keep it out clearly and they also indicated, they felt the District Court thought that it should carried out not as a matter of discretion and I agree with that.
Justice Potter Stewart: Well, in a diversity case, at least my understanding that in order for there to be diversity jurisdiction, all of the plaintiffs have to be a diverse citizenship from all of the defendants and once you have a plaintiff and a defendant who do not have diverse citizenship, diversity is defeated, isn't it?
Justice Byron R. White: There are separate suits like that?
Mr. Peter W. Davis: There are separate suits, but they have been consolidated.
Justice Byron R. White: Does that mean, you destroy federal constitution.
You would throw the the case out on diversity (Inaudible).
Justice William J. Brennan: That would be (Inaudible)?
Mr. Peter W. Davis: That point has not been argued, but it makes sense --
Chief Justice Warren E. Burger: Well, isn't it true?
Mr. Peter W. Davis: -- to me and I agree with it that if the cases are consolidated, then there would not be complete diversity since once requires --
Justice Potter Stewart: And diversity is defeated, isn't?
You have a plaintiff and a defendant from the same state, citizens of the same state, then you don't have diversity jurisdiction?
Mr. Peter W. Davis: That's correct.
Justice Byron R. White: Neither party -- neither party broke up?
Mr. Peter W. Davis: The --
Justice Byron R. White: If the court permits (Inaudible)
Mr. Peter W. Davis: Well, these work all are assigned under the related case rule to the same judge.
Justice Byron R. White: Related, that means in every county they are related case (Voice Overlap)
Mr. Peter W. Davis: No, but that's not -- I believe the cases were also consolidated.
Justice Byron R. White: By whom?
Mr. Peter W. Davis: I am sorry, Your Honor.
I am a little shaky on the record, but I believe that it was a motion of plaintiff.
Justice Thurgood Marshall: How could you consolidate a diversity case with another case and then thereby defeat a diversity case?
How can you do that?
Mr. Peter W. Davis: Federal jurisdiction is limited and if the case falls within or without the preview of the jurisdictional statutes, the chips have to fall as they may.
Justice Thurgood Marshall: But if cases are consolidated, don't they each stand on their individual merits?
Mr. Peter W. Davis: Conceptually, I don't know what the difference is between two individual actions with identical complains except for the diversity point in one which are consolidated and one complaint that has both in it and under the live situation --
Justice Thurgood Marshall: They would have consolidated in one complaint?
Mr. Peter W. Davis: Consolidated in one action with two separate complaints which say the same thing.
Justice Thurgood Marshall: Well, that's a lot different?
Mr. Peter W. Davis: Is it really conceptually different as a practical matter than --
Justice Thurgood Marshall: I am not talking about conception, I am talking about actually.
Well, do they each have a separate docket number?
Mr. Peter W. Davis: Yes.
Justice Thurgood Marshall: Well, aren't they then individual cases?
Mr. Peter W. Davis: Technically, I think that they are except that --
Justice Thurgood Marshall: The fact that they are consolidated for the purpose of convenience, defeat one on diversity?
Mr. Peter W. Davis: I think that it is --
Justice Thurgood Marshall: Or supposed we both sue General Motors for something and mine is on diversity and yours is not.
So they consolidate two cases and throw me out of court?
Justice Byron R. White: Well, that maybe so but if I want to come in and say I am pendent and said I want to be part of this law suit, that's is different, isn't?
Then you are in one law suit.
Is that what question of your consolidation, you are trying -- you are claiming that you are pendent?
Mr. Peter W. Davis: I think in your point --
Justice Byron R. White: You cannot have it both ways.
Mr. Peter W. Davis: Mr. Justice White, yes, that's very true.
Justice William H. Rehnquist: Well, did anybody argue the Strawbridge against Curtiss point in the lower court, the complete diversity of plaintiffs and defendants?
Mr. Peter W. Davis: On the consolidated issue, no.
But of course jurisdiction can be raised at any point and could be raised by this Court.
On the pendent jurisdiction point again, I think that again we have to start with the rather axiomatic problem.
Chief Justice Warren E. Burger: Before you get in to that, you started to say something about California, a county is simply, on that point, something else intervened.
Mr. Peter W. Davis: Thank you Mr. Chief Justice.
Chief Justice Warren E. Burger: You want to finish that?
Mr. Peter W. Davis: I think that in California, whatever the situation might be in other states, the California law makes it clear that a California county is simply a subdivision of the state and has whatever powers the state delegates to it.
Now as against the state, the county has no powers whatsoever, as has been made clear in the cases cited.
In other words, if the state wants to take property away from a county, they just simply do it, no compensation, nothing.
As to third parties, the county stands in the shoes of the state and that's also in the cases that for example, in the one case mentioned, the county took some action which should properly have been taken by the state and the court said, no, the county is simply an agent of state, stands in the state shoes and is perfectly capable of taking this action.
Now when you are talking about citizenship, which is what we are talking about under 1332 and I would oppose that to the concept of state as in the Eleventh Amendment, I think this is something different.
I fail to see how you can say that a county is a citizen of the state under those circumstances.
It seems to me you have to make some basic divisions between government and citizens and the kinds of things that are given to citizens like the power to hold property and like the power to vote are not in the county under any stretch the imagination.
Now, the --
Justice William J. Brennan: You think this argument as to is in San Francisco?
Mr. Peter W. Davis: No, not as to the city.
The cities are different.
Cities are entirely different in California than counties.
Justice Byron R. White: Are you saying that this is unique to California county, and do you think that this is behind the Court of Appeals for the Ninth Circuit’s decisions in this area even though not articulated?
Mr. Peter W. Davis: I think it must be.
At least in this case, all of these arguments were presented to the court and they refused to change their earlier ruling and insisted that California county --
Justice William J. Brennan: Well, have they are ever articulated this as well?
As I understand your argument, your major premise is that there is a relationship between the state of California and its counties.
Whatever it might be the other way which makes the county simply (Inaudible) to state.
Mr. Peter W. Davis: Makes it not a citizen of the state.
Justice William J. Brennan: Well, alright, not a citizen.
Now has that ever been said by the Ninth Circuit?
Mr. Peter W. Davis: They have said just what you said.
They have not gone on a great length and explained why.
Justice William J. Brennan: Ordinarily, of course, we accept here, did you know, what a Court of Appeal says is the state law, but we are not positioned with this one on issue?
Mr. Peter W. Davis: The plaintiff has pointed out authorities to the effect if whether it is a citizen or as a matter of federal law and not a state law.
Although of course, you look very properly to the state law to determine that question.
Justice Potter Stewart: So far, everything you have told us about California counties, I think, it could have been said about the counties in any state that I know about.
You haven't told us anything that's uniquely characteristic of California counties?
Mr. Peter W. Davis: I am not sure what the status of counties in other states is.
Justice Potter Stewart: I am not sure certainly with every state, but the states I am familiar with are just as you told is California in creatures of the state?
Mr. Peter W. Davis: The decisions I have read haven't given any great analysis to this either including Cowles.
They just said, they look at some language like corporate and that's as far as they go and they say, okay, it must be a citizen because a corporation is the citizen and I find that I think a little more analysis is in order.
I think that the concept of a citizen could apply to a municipal corporation.
I don't really have much difficulty with that, because they are different, they are not a subdivision of the state.
They are a corporation which it does govern, but they hold their own property, they have their own rights.
A county does not have that in California.
I think it's a different entity and it seems to me logically difficult.
Justice William J. Brennan: (Inaudible) the county court houses in the California.
What entity owns it?
Mr. Peter W. Davis: According to the County of Morin case it's owned by the state.
If the state says, that's our court house, we are going to sell it tomorrow, we can do it.
The judges are state, for example.
They are not -- It's a superior court in and for the County of Alameda and they are called Alameda County Superior Court Judges, but the analysis of the situation indicates that they are state judges.
They are paid by state judiciary --
Justice Byron R. White: Your cities are not creatures of the state?
Mr. Peter W. Davis: Cities are creatures of the state under different constitutional provisions and under different legislating provisions and they have different powers and different duties.
Justice William J. Brennan: You say they were -- the cities are incorporated?
Mr. Peter W. Davis: Yes.
Justice William J. Brennan: And counties are not?
Mr. Peter W. Davis: I do not think not in the same sense of the word, no.
Justice William H. Rehnquist: Doesn't a county put up part of the judges salary or is coming to entirely from the state?
Mr. Peter W. Davis: I am not sure Justice Rehnquist, but I believe that they are -- I was told that they were paid by the state.
I haven't really researched the point, I am sorry.
Justice Byron R. White: Are your school districts citizen for purpose of the diversity --
Mr. Peter W. Davis: The school districts, assuming that they are all the same and I don't know that would be again a legislative creature only and nothing enacted under different laws --
Justice Byron R. White: So your answer is yes?
Mr. Peter W. Davis: -- and probably would be yes, yes.
Chief Justice Warren E. Burger: San Francisco would be under Monroe and Pape?
Mr. Peter W. Davis: I may have to back up a minute on that.
It just occurred to me, there are two or three city and counties and San Francisco is one of them.
So San Francisco happens to be an exception that comes under both.
In this case, it's not.
County of Alameda is completely separate from any of the cities and municipalities within the county.
I believe Los Angeles is the other.
As to the other rights that have been enumerated, for example the right sue or be sued, the state has the identical right.
I don't see how that can really be a distinction between whether you are citizen or not.
In fact, all of the rights that are talked about here are state rights that are delegated to the county.
So how does that make the county a citizen of the state?
I feel it does not.
On the pendent point then, I feel that there is a major difference between joining causes of action among a defendant already subject to federal jurisdiction and between bringing in the defendant into the Federal Court on a state law cause of action when there is no congressional or constitutional authority to bring that particular defendant in.
I can readily appreciate the reasoning in Gibbs which is judicial economy and expediency, but I think that one of the very few checks on the federal judiciary today is the power of Congress to define jurisdictional limits of the District Court and I would respectfully suggest that this Court should go slow in extending on your own the concept of jurisdiction to include another party not previously in front of the Court.
I think that there is also merit to Mr. Shakman’s argument in 20 Stanford Law Review that state questions should be left to the state courts in many cases and I think in this particular case, Chief Justice Burger brought up to this questionnaire immunity point.
There is a point of Section of 820.4, of the Government Code which says there is no liability to a public employee in exercising due care in the enforcement of law except for false arrest or false imprisonment.
I think that these are questions, are difficult questions that should be left to the state courts and not to the federal courts.
As Mr. Shakman points out if the state court makes an error, this Court can review it.
If the Federal Court makes an error, the state has absolutely no opportunity to review that or to correct the error.
Well, I think there are some very good reasons why it should not be extended in that regard.
But basically, I think we are talking about a separation of power problem and I think that you are going to have to draw the line in some place on what kinds of claims can be brought in the Federal Court when there is no congressional authority for that and I would draw the line here when you are talking about bringing in another party who is not already in front of the court and that's the situation here.
I think the Ninth Circuit was correct in these points and I would like to suggest that their action should be affirmed.
Chief Justice Warren E. Burger: Thank you Mr. Davis, Mr. Greenberg, you have a few minutes left.
Rebuttal of Ronald M. Greenberg
Mr. Ronald M. Greenberg: Let me correct a couple of points.
On consolidation, Appendix C to the petitioner will show how the case has became consolidated.
They were consolidated by the Ninth Circuit for this appeal only.
They have never been consolidated for trial.
Indeed, at one point we tried to have them consolidated, the county opposed the motion for consolidation.
Justice Byron R. White: So there is no claim (Inaudible) here that if Moor is a diversity case, Rundle is pendent?
Mr. Ronald M. Greenberg: No, none at all.
Rundle must --
Justice Byron R. White: You couldn't make the argument?
Mr. Ronald M. Greenberg: No, Rundle will stand to fall on the Civil Rights Acts in pendent jurisdiction or points.
Justice Potter Stewart: Because as soon as it became pendent, they are no longer be jurisdictional of the Federal Court, isn't that correct?
Mr. Ronald M. Greenberg: Oh!
The whole concept of the pendent jurisdiction implies that the court has jurisdiction of the case --
Justice Potter Stewart: Yeah, but the whole concept of diversity jurisdiction is that all appellees are of diverse in citizenship from all the defendants, and if they are not, there is no jurisdiction of a Federal Court?
Mr. Ronald M. Greenberg: Well, except in Courts of Appeal, I am sure they got along that point and pendents and claims of citizens of the same states, once they had jurisdiction of the entire matter, but we are not raising that at all.
We are not saying that Rundle’s is a pendent case.
Indeed, the injuries are different and the case will be tried separately.
A second point that I think we should dispel is if the Court will look at the opinion attached to our replied brief which is the latest one by Judge Peckam (ph) in this case, you will see that the discretion area X is not even an issue.
The court has completely rejected those for these individuals.
Number three --
Chief Justice Warren E. Burger: Well now before you leave that, you said that Ninth Circuit is responsible for consolidating these cases for appeal only.
When as and if you should get back, you mean you are going to undertake if you can to try these cases entirely separately?
Mr. Ronald M. Greenberg: At the moment, that is correct and that is their posture.
They are separate cases to be tried separately.
They have not been consolidated for trial or for any other purpose except this appeal by the Ninth circuit in its order at our request to bring the cases on.
Chief Justice Warren E. Burger: Of course, they will be specially be tried separately for one is in the State Court and what is in the Federal Court?
Mr. Ronald M. Greenberg: No question about that.
Justice William J. Brennan: And I gather the actions pending in the state courts are also to be tried --
Mr. Ronald M. Greenberg: No.
The State Court action, Your Honor, was filed for this reason in 15m (ph) jury trial, Section 26 at pages 617 and 618, they talked about a Chicago practice.
Because of Monroe, it is unclear and it wasn't clear that we would ultimately be successful in bringing the county into this case, for that reason we wanted to protect our client.
A former associate of ours did some research in the area and concluded that we had no problem as to diversity, so we filed the Moor case only in the Federal Court.
However, because of the unknown factors in Rundle, we filed only in the State Court.
For the past three years, we have never done anything --
Justice William J. Brennan: You mean only in Rundle -- also?
Mr. Ronald M. Greenberg: Only in Rundle.
Justice William J. Brennan: Oh!
Moor is -- I see.
Mr. Ronald M. Greenberg: And that we have never done anything with the State Court action include serving it until about a month ago when under California law, if a case is not served within three years of filing, it is automatically dismissed.
In the federal case, we have taken some 15 depositions, had extensive discovery, extensive motions we have -- The federal case has been the case we have filed (Voice Overlap)
Justice William J. Brennan: What you mean the federal cases?
There are two federal cases, Rundle and Moor?
Mr. Ronald M. Greenberg: Right, but we are talking about Rundle because it's got the companion state case.
Justice William J. Brennan: I see, I see.
Mr. Ronald M. Greenberg: I would hate to think that our client in Rundle would be prejudiced by our seeking to protect him and to obviate the very thing that we are trying to obviate having to go two courts with the same case.
Justice Harry A. Blackmun: But then I say you would have avoided all this, had you gone full steam ahead on the state side for both cases?
Mr. Ronald M. Greenberg: Just as in any pendent jurisdiction case, with diversity case I suppose, sure, we had that option, but we chose the federal forum because we felt we would get -- there were many factors which dictated our going into the federal forum and I would -- jury, they were balancing factors.
You could get to trial faster in Federal Court generally than in the State Court.
There were many factors.
The federal judiciary was much more familiar with the Civil Rights Acts, we thought.
We know of no State Court reported opinions construing the Civil Rights Acts.
Indeed, if one look at the opinions of Judge Peckam in this case where he has agreed with us and disagreed with us, at least he has enunciated some pretty extensive opinions.
On the point about complicating the case by adding the county, it's just a fallacy.
The same defenses which were available to the county are available to the individual employee defendants.
We have to say, it is by our right to sue county in order to sue the individuals.
The same instructions are going to be a part of this case.
And with respect to insurance, there is nothing in this record which shows that these employees have insurance of any sort.
I can tell you as a fact that the officer that shot my client is making approximately $8,000.00 a year and doesn't have any insurance to our knowledge.
The county carries insurance.
They are the only ones we know that carries insurance aside from Sheriff Madigan smaller bond of some 25,000.00, but there is nothing in this record showing that these defendants are financially able to respond to the kind of judgment we are seeking in this case, none whatsoever.
Justice Byron R. White: Or the contrary?
Mr. Ronald M. Greenberg: But they are not.
No, this really was never raised as a point and indeed I think common sense would say that the deep pocket in this case is unquestionably the county.
Moreover, under California law, in order to sue other county --
Justice Byron R. White: What it done on basis of as far as the record is concerned that counties are usually richer than anybody, any individual?
Mr. Ronald M. Greenberg: I think that's is a fair assumption.
Justice Byron R. White: But that's your argument?
Mr. Ronald M. Greenberg: Correct.
Justice Byron R. White: And you have no evidence on it?
Mr. Ronald M. Greenberg: No and perhaps or court take judicial notice on it, but the county has got of deeper pocket than the shot -- the deputy who shot my client.
However, with respect to another important reason for a judgment against the county, in California, if you want to sue other counties who participated in a particular act, you must get a judgment against one county.
In connection with the people’s park disturbances, there were a number of counties involved in that situation.
Only if we procure a judgment against the County of Alameda can we then sue this other counties which we would intend to do and finally, on congressional intent, I have found nothing that even remotely indicates that Congress intended not only not to impose liability as a result of the Sherman Amendment debates, not only did not intend as a matter of federal law of imposed liability, but when further and said, we intend to preclude a state from imposing vicarious liability on its public entities.
I think that kind of congressional intent is pure fabrication, it's not found in the debates and it's not found in Monroe.
Justice Potter Stewart: And it is found the decision in Monroe against Pape, isn't it?
Mr. Ronald M. Greenberg: No, Monroe says and Monroe is concerned only with 1983 liability, footnote 2 of that opinion makes clear that's the only section that was before the Court and the Court held that on the basis of the Sherman Amendment debates, Congress did not intend to impose liability by virtue of 1983.
Justice Potter Stewart: Didn't the Court also say that a city was not a person within the meeting of 1983?
Mr. Ronald M. Greenberg: It's correct.
It is in the meeting of 1983 for purposes of imposing federal liability.
Justice Potter Stewart: Alright.
Mr. Ronald M. Greenberg: That's not our position here.
We say there is nothing in Monroe and nothing in the congressional debates or any other place that we know off which says that Congress also did not intended to preclude a state as a matter of its law from imposing that liability.
Chief Justice Warren E. Burger: Thank you Mr. Greenberg, thank you Mr. Davis.
The case is submitted.