MONELL v. NEW YORK CITY DEPT. OF SOCIAL SERVICES

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Argument of Oscar Chase

Chief Justice Warren E. Burger: We will hear arguments next in 1914, Monell against City of New York.

Mr. Chase you may proceed whenever you are ready.

Mr. Oscar Chase: Mr. Chief Justice and may it please the court.

I am Oscar Chase.

I represent the plaintiffs in this action who consist essentially of two groups of women.

One group was employed by the City of New York at the times of the events alleged in the complaint.

The other group was employed by the Board of Education of the City of New York.

The two groups have in common the fact that they will all compel to take unwanted leaves of absence from their employment as a result of a compulsory pregnancy rule of the kind with which the court is familiar after Cleveland Board of Education against LaFleur.

The principle relief sought was injunctive and declaratory relief as well as an award of lost wages.

After the defendants changed their policies, some time after the complaint was filed, the court below dismissed the declaratory and injunctive request as moot and then went on to dismiss the remaining claims for back pay as a wanting and subject matter jurisdiction.

The court held and the Court of Appeals affirmed that the Board of Education was not a "Person" within the meaning of Section 1983 and then in the second branch of the case, held that municipal officials are not persons when monitory relief is sought against them in their official capacity.

Justice William H. Rehnquist: Do you say monitory relief is sought against them in their official capacity, you mean monitory relief to come out of the public treasury in some form?

Mr. Oscar Chase: That would be the effect of it, yes.

Turning first to the question of whether or not the Board of Education is a person, we must note preliminarily that the question is a unitary one in terms of remedial purposes.

Unknown Speaker: Okay, just before you go on, in connection with Brother Rehnquist's question, there is no finding here and no issue as to whether the individual members are persons or purposes of prospective relief?

Mr. Oscar Chase: That was not raised below because that aspect of the case was moot and no appeal was taken from that.

But as to the unitary question of the personhood of the Board of Education, City of Kenosha against Bruno teaches that the personhood is not determinable by reference to the relief sought.

Under 1983, a person is a person and as to the board's status in that regard, we would note that the court is not here writing on a clean slate, there is a long line of precedent dealing with school segregation cases, a line of cases lamented by some I suppose, applauded by most, but agreed by all to a workday fundamental change in the way this country educates its young.

The Court of Appeals rejected the importance of those cases on two grounds.

One, the results reached as to jurisdiction in those cases were reached through inadvertence and secondly, the individuals, members of the board were named in those cases as well as the board members.

These reasons we submit are insufficient for rejecting this established line.

First is to the fact that they were as we can see it in most of these cases individual defendants as well as board members.

We would note though that the court has focused time and again on the board, the defendant board, the respondent board and Mr. Justice Powell concurring in the second Milliken case last term, noted that in the line of precedents commencing with Brown, the principal defendant, I am quoting here is usually the local Board of Education or School Board.

Justice William H. Rehnquist: What would be the distinguisher between the local board and the state board?

Mr. Oscar Chase: Yes and for the purposes of that case it was relevant, but for the purpose of this case, I think the important thing is that whether it be state board or local board, it is the board that is the defendant, it is the entity that is doing the wrong.

Justice William H. Rehnquist: Well, but counsel, now do not you have to take things in context when you are talking about a substantive right to relief, you may not be focusing on who are proper defendants and vice versa.

I do not think you can take every word as written out of every opinion of this court and say that it decides a question that the court may not have been focusing on.

I thought from your earlier comment, you probably agreed with that.

Mr. Oscar Chase: Oh, I do agree with it Your Honor and if we were talking about one or two cases or an accidental reference in an occasional case to a school board, I would not be presenting this argument.

But we are dealing here with a line of cases which as I mentioned is fundamental in the jurisprudence and in the political history of this country.

Its strange belief that this court which has imposed on itself in another context, the duty of determining whether subject matter jurisdiction exists in the lower courts, that this court would then fail to appreciate that problem in cases of this magnitude.

Of course it is always open to the court to readdress a fundamental point of that nature.

But we would add that Congress has additionally acted in reliance on those cases and has also spoken in terms of local educational agencies.

Thus Congress and we cite the statute in our brief and the amicus brief has allowed attorney's fees to be provided to prevailing parties where the defendant was a local educational agency and the leading case interpreting that statute, the Bradley case was a 1983 case in which the defendant was a school board.

There is also the statute providing financial assistance to "Local educational agencies", bearing the financial burden of a school disaggregation order.

So, that where there is the established line and there is congressional reliance, they would appear to be really a rule that we have arrived at which remains only to be announced.

Chief Justice Warren E. Burger: Well, where a local financially or where a local board bears the burden of a school desegregation order and gets a grant from the government, the order could be perfectly effective, prospectively through individual school board members and nonetheless impose the burden of buying buses and that sort of thing on the school district I would suppose.

Is not it that language of Congress there perfectly reconcilable with that interpretation?

Mr. Oscar Chase: It is reconcilable, yes but it is also reconcilable and I think more so given the language that Congress chose to use, they focused on the agency.

It is reconcilable, I think more happily with the point that appellants present here, Your Honor.

Of course, defendants would have this court turn its back on that twenty years of decision of law and defendant argues principally that the logic of Monroe against Pape requires a similar holding for these persons, these boards of education which it says "fulfill an important governmental role".

Let us see how this would frustrate the statute, both its purposes and its language.

1983 is a statute which applies only where there is color of state law.

It will almost always be the case, if not always, that a corporation or person acting on the color of law is fulfilling an important governmental role.

So that under defendant's view, when the statute applies when you get into it, you are also shunted out of it because you are really by definition fulfilling that important role.

Such a reading would, aside from being absurd, and I submit imputing to Congress an intent to pass a meaningless statute in that context, such a reading would allow states if they were such in mind to evade constitutional obligations by setting up corporations to undertake important governmental roles and one thinks of Smith against Allwright where in another context the court said to the Democratic Party of Texas back in those days, "You can not set up a Jaybird society and tell us that is not the State of Texas operating the primers."

I think the case is relevant its spirit if not in precise holding.

Unknown Speaker: Mr. Chase.

Mr. Oscar Chase: Yes sir.

Unknown Speaker: What extent is your position predicated on the deal that the New York Board of Education is a separate entity from the City of New York.

Mr. Oscar Chase: Well Your Honor, I think that that is an important ingredient of our case because under the Monroe holding, a city is simply not a person and we do not think our case presents the court with the necessity of reconsidering that holding.

But we think that the record is so clear that the Board of Education is not an arm of the city, that that probably --

Unknown Speaker: That it have any thought of levy the taxes?

Mr. Oscar Chase: No, it does not.

Unknown Speaker: Or issue bonds?

Mr. Oscar Chase: No, it does not, but it does have the power to obtain funds from Federal, State, city and private sources.

Unknown Speaker: They come from all three of those don't they?

Mr. Oscar Chase: Well four, private as well, although the governmental and actually the bulk of it.

But one thinks of the court's opinion in Mt. Healthy against Doyle where the question there was whether a school board was an arm of the state and the mere fact that it got funds from the state , did not make it an arm of the state anymore than the fact that the Board of Education gets funds from the city, makes it "An arm of the city"

Unknown Speaker: Is the Board of Education and here what you would call a municipal corporation a sue, that can sue, be sued that sort of thing.

Mr. Oscar Chase: It is a corporation and like any corporation can sue and be sued, it is not a municipal corporation in the sense that A: does not have a power to administer law within a geographic area and perhaps more to the point under New York law, it is not so considered.

The New York constitution defines very specifically local government as a county, city, town or village, does not include an under decision of law and there were similar provisions in the general municipal law which are even more on the fact --

Justice Thurgood Marshall: Well it is not a private corporation?

Mr. Oscar Chase: It is not a private corporation.

Justice Thurgood Marshall: And it is not a municipal corporation, then what is it?

Mr. Oscar Chase: No it is not -- well, it is an entity that is in between.

It is a --

Justice Thurgood Marshall: Then what does the State of New York say it is?

Mr. Oscar Chase: A corporation charted under the rules of the state which are separate and distinct from the city which has the capacity to sue and be sued and has the responsibility to administer education in the -- excuse me Your Honor.

Justice Thurgood Marshall: Is that statute here, at some place in the record?

Mr. Oscar Chase: Well, it is both decisional law and statutory law and it is set out in our brief.

Yes, Your Honor.

Unknown Speaker: Does the constitution of New York provide for Boards of Education as constitutional entities, this is true in my state of Virginia, for example.

Mr. Oscar Chase: No, the constitution provides that education is a power that the control of education is a power reserved to the state and excludes it interestingly on the constitutional point, it is reserved, it is excluded from the Home Rule Provisions of the New York constitution which do define the sphere of influence of cities and is a further indicia of the fact that it is not an arm of the city, but it is in primarily in statutory law Your Honor that the board is established as a separate entity.

It is in the New York education of law.

Now, Your Honors I had addressed, the point as to how the defendant's position would frustrate the language of the statute and let's take a look now at the purposes of the statute and how this argument fits in there.

The purpose of Section 1983 is revealed in the title by which it is referred to in the statutes at large and in the debate, an act to enforce the provisions of the Fourteenth Amendment and I may say parenthetically that in Monroe the court referred to it as the Ku Klux act which I think frankly, well somewhat accurate is a misnomer, the true purpose, the true title was an act to enforce the provisions of the Fourteenth Amendment and it has been agreed that that purpose was its primary purpose, even Justice Frankfurter, in his decent in Monroe, said that the purpose of Section 1 of this Act of 1871 was to protect against constitutional violations through the authority enhanced by the majesty and dignity of the state.

Just as here we have this corporation setup by the board, given some powers by the state and then in this case has violated people's right.

It is the very situation in which the statute Section 1 was intended to apply and when the legislature, when Congress used the word all persons are liable, it clearly intended to include such corporations.

We know this because first the common understanding of the term corporation, or persons in a legal sense included corporations.

This court said as much as early as 1838, it was just an axiom unless someone tells this otherwise the term persons in a statute means corporations and beyond that we have the Dictionary Act adopted by the same Congress of 1871 which said in it that you may take it that we mean corporations as well as corporeal persons when we use the term persons.

Now, counsel is quite aware that the Dictionary Act was rejected as precedent as binding in the Monroe case because in Monroe the court found a special intent to treat municipalities differently from other persons and we submit that no such finding can be made with regard to this kind of corporation.

And let me explain why this is so.

First, the Sherman amendment in terms would have imposed liability on cities for acts of violence done within their borders in terms -- on the county, city or parish "In which the riotous acts occurred".

There was no discussion of corporations such as the Board of Education which exist for particular purpose.

Any such discussion would have been absurd, no one would have thought to impose liability on a Board of Education if they had thought of it because riotous acts occurred in the school district.

But I think even more important, Boards of Education were creatures that were only barely gaining their own under American law at the time of these debates.

Certainly, they were never mentioned during the debates, there is no indication that they were before the Congress, we just do not know what Congress would have thought about its powers to impose liabilities on these creatures of law even if we do know what Congress thought about its power vis-a-vis municipalities.

So that a holding which would extend the legislative history reading in Monroe yet further to include these entities would really rest if I may say so, on the legislative history of imagination, of surmise rather than the legislative history of scholarship.

An additional point on the relevance of the Sherman Amendment is that we must recall that the Sherman Amendment was an additional section to the Act of 1871, it would have been tacked on the end.

Chief Justice Warren E. Burger: We will resume at one o'clock counsel.

Mr. Oscar Chase: Thank you Your Honor.

Chief Justice Warren E. Burger: Counsel, you may continue.

Mr. Oscar Chase: Thank you Your Honor.

Your Honor, at this point I would like to turn with the court's permission to the second aspect of our position that the defendants can be required under Section 1983 that is the official defendants can be required to use their official powers to make whole the plaintiffs.

That is they can be required in the words of this Court in Griffin v. Prince Edward County to use the powers that is theirs, to remedy the wrongs that they have done.

Now, let me begin by saying that here unlike plaintiff's claim against the school board, it is undeniable that an order to the defendant Mayor in his official capacity will have some impact on the municipality and thus the limit in Monroe is at least arguably relevant.

But we contend it is not determinative, because it is beyond dispute that the defendants are in their official capacity subject to 1983, for injunctive and other purposes and that was held in Kenosha that the quality of personhood does not depend on the type of relief sought.

Chief Justice Warren E. Burger: If there is no money available, let us assume hypothetically, for some legal reasons, could others be compelled to enact legislation or make appropriations or raise the money by borrowing it in order to pay or if they have borrowing power, that they be compelled to exercise that borrowing power.

Mr. Oscar Chase: You mean the official defendants, no Your Honor, I do not think so because under state law which at least might apply to that end of the case, the liability of the defendants is limited to such amounts as are in the treasury, even in their official capacities.

That is in general, municipal law, Section 70 of the New York Code.

So that I do not think, I think that the situation would there be as in any case in which the defendant turns out to be judgment proof.

The plaintiff gets a judgment, but he can not enforce it.

But, still plaintiffs would prefer to get the judgment and worry about enforcing it later.

Chief Justice Warren E. Burger: But do not you think the courts have to think about that?

Mr. Oscar Chase: No Your Honor I do not, because I think that a rule of subject matter jurisdiction or a rule of remedial scope should not turn on the likelihood that defendants either can or will pay the judgment.

I think that those are very separate.

Chief Justice Warren E. Burger: Now, that is casting it somewhat different terms from my inquiry.

If you were talking about two private parties, that certainly would be true, the courts are not concerned with it.

We are talking about public money here now.

Mr. Oscar Chase: Yes and I think that the general principle is the same, I do not think that the court should erect special rules to protect public entities unless Congress has done so, where they are otherwise subject to the terms of the statute.

Justice William H. Rehnquist: Would the individual defendants in a capacity, you are talking about, have the same good faith, reasonable type of defense that they would have to damages action against them personally in this capacity?

Mr. Oscar Chase: Well, Your Honor that -- I believe not because of the special reasons that run Imbler the court mentioned and so forth, but I think that that is a question that is not before the court, it is a difficult question I concede.

It is one that had the defendants properly raised below or perhaps may even have a chance to raise below if this court reverses, we would appreciate an opportunity to convince the lower court and maybe ultimately this court.

Chief Justice Warren E. Burger: I should say to counsel in this case by the way that Mr. Justice Brennan is inevitably absent, but has heard part of the arguments and will participate in case on the basis of the tape recordings of the oral arguments and of course all the records.

Mr. Oscar Chase: We understand Your Honor.

I was about to say that a logically consistent system of 1983 jurisprudence would require, taking into account the Kenosha case and the other cases that we cite in our brief in which the court has affirmed lower court holdings ordering defendants in their official capacity to make restitution to plaintiffs.

That those cases require a similar holding here and I think it is fair to say that this is an issue that can not be decided in either direction without some infringement on Starry Decisis Principles.

The court is caught between conflicting lines of cases and I suggest that that plaintiff's position is the best way to resolve them because it looks back to the fundamental purpose of Section 1983, the purpose of protecting constitutional rights and enforcing of the Fourteenth Amendment.

Anything which would be found in the legislative history that might be contrary wise, all was in the context of the Sherman Amendment which was really not terribly relevant to Section 1 at all and in so far as the Monroe case does stand against the position that plaintiffs take.

We would make at least three points.

In Monroe, the city was the defendant.

So, that just in the narrow Starry Decisis, the case is inapplicable.

Second and more broadly, plaintiffs do not here seek to render Monroe meaningless.

We are not saying that the plaintiffs in Monroe could have sued the Mayor Daley of Chicago and obtained a judgment because some police officer beat them up.

Mayor Daley in that case did not wrongfully exercise his official powers.

The analogy is very close to Rizzo against Goode where then police commissioner Rizzo could not be held liable the court thought because some of his officers had run a muck allegedly, nor could under our view the plaintiff in Monroe sue the police officer in his official capacity, because the police officer in that capacity has no authority to dispense public funds to make whole injured plaintiffs.

So that the integrity of Monroe is not necessarily at issue here and I would like with that background --

Unknown Speaker: In other words as I understand it, your argument in this phase the case is not at all depended upon our respondeat superior theory.

Mr. Oscar Chase: No Your Honor.

We believe that-- not at all, the defendants themselves acted wrongfully.

So, we allege.

Unknown Speaker: What if this school board member says I have done all I can to give you back pay, but I do not have the money and then I get my money from the city.

Is he then like a police officer?

Mr. Oscar Chase: Well, if the Federal District Judge orders the school board or its members to make restitution and they in the normal course of the business, as they would issue a directive or a voucher to the holder of their funds, the city controller, that is all they could be reasonably expected to do, yes.

I would assume in the normal course of the events that as under state law, controller is required to pay money on vouchers, lawfully issued by the board and he would pay it.

Unknown Speaker: Would you have a stronger case if you came from somewhere else than New York?

Do you think?

Mr. Oscar Chase: If we came-- oh! Because of New York's financial embarrassments.

Well, Your Honor I like to think as I said to the Chief Justice that that will not be relevant in making a rule and it is going to be applicable for those of the the cities that are maybe better managed or luckier possibly.

I would further urge that our position --

Unknown Speaker: Well, will you be here making the same claim if there had been no claim for equitable relief other than this so called restitutionary claim?

Mr. Oscar Chase: If there had never been an action for injunction?

Unknown Speaker: Oh, Yeah.

Mr. Oscar Chase: Well, that raises the question really I think, if I mar is whether or not, this restitution stands in law or equity and I am not sure that this is the kind of issue that the difference is important, I think this is what --

Unknown Speaker: So, why don't you just say that if I am suing the school board or its members, I can sue them in law and get money even if the city has to pay it?

To that extent Monroe just does not reach it.

Is that really your position?

Mr. Oscar Chase: That is really our position, yes sir.

I think we should state that, in this case I should say that the case does arise in the context of an injunctive action and that it is traditional that restitution is considered an incident of equity, but after the abolition of law and equity distinction, I am not sure how terribly important that is.

I think the power is there in the District Court because if the power is not there, using the defendant's approach, a defendant official would be subject to Section 1983 because he has official powers and then when the court seeks to order him to exercise those official powers, it would be the very same powers that he would use to say, oh no you can not do that to me because that would be the same as having an impact on the entity that I serve.

So, here again it would be way of making the statute if you will, consume itself.

I do not think that is what Congress had in mind.

Now, the lower court was impressed by this Eleventh Amendment analogy that it found and I would like to address myself to that.

The Eleventh Amendment of course is a prohibition, it says that there shall be no suits by a citizen against a state and I have a great difficult in analogizing that provision which is wholly negative to a provision which had it as its prime purpose and expansive of view of federal power to protect constitutional rights.

Secondly, I find it difficult to believe that the Congress did enacted Section 1983, had in its mind this Eleventh Amendment construct, when the Ex parte Young was not even decided until about 1908 and this is a Congress that could never -- I don't think it contemplated the unusual chain of events that led to Ex parte Young which has resolved those competing considerations.

They are relevant.

If there is an intent to insulate municipalities, it can be found in only one place and that is in the rejection of the so called Sherman Amendment that would have made cities vicariously liable for acts that it did not commit that were committed within its borders and in Monroe of course, the court read the rejection of the Sherman Amendment to mean that Congress had decided, it had no power to impose "Liability" on cities.

But of course, that is different than saying that the Congress thought that it had to insulate the cities from even and the ancillary effect of orders against those whom it -- or concede did have power to affect.

Secondly, we think that the court in Monroe read the legislative history rather too broadly, in the very language, the Mr. Justice Douglas quoted in Monroe, he quoted Representative Poland who was a Reconstruction Republican, believed four-square in the Fourteenth amendment, but said in his one speech that Mr. Justice Douglas quoted that we do not have the power to impose and "Obligations on municipalities" and we think that the correct reading of that legislative history was something like this, even the reconstruction republicans recognize that in 1871 there was no power to say to a city, you shall have a police force on the part of the Congress, you shall have the police force, you shall police what goes on in the neighborhoods and so forth.

The states decided what the obligations of the cities were.

That being the case, they said, "How can we in good faith or even constitutionally" tell them, you are liable for not doing that which we do not have the power to tell you to do in the first place?

And I do not have the time to read from the record, and from the brief, but I think that Your Honors will find that the key republicans who were in support of this basic approach of Section 1983 did have difficulty, but only on that score.

They believe they had the power to impose a liability, but not obligations on municipalities.

So, we find that the Eleventh Amendment analogy is simply not supported by reference to the record.

Congressmen like Congressman Curt who was against everything they did.

He was a democrat who thought the Fourteenth Amendment did not give the powers that the republicans thought.

I do not think the court should look to his quotes and use them to interpret a law that he was against right from A to Z. So, we think that the legislative history does not support this special intent to protect municipalities and I will if Your Honor, please reserve the rest of my time.

Chief Justice Warren E. Burger: Your time has expired now counsel.

Mr. Sheridan.

Argument of L. Kevin Sheridan

Mr. L. Kevin Sheridan: Mr. Chief Justice and may it please the court.

In answer to the questions concerning the status of the defendant Board of Education.

The New York Law indicates that this is a hybrid entity.

The state constitution provides that every child shall be guaranteed a free public education, this provision of state constitution, the State Board of Regions and the Commissioner of Education.

Certain state cases indicate that for pedagogical purpose at the very least.

Boards of Education are arms of the state coming perilously close to an Eleventh amendment defense being available, we can urge that in light of this court's and a healthy decision.

Other cases indicate that based up on its slotted city funding, its relationship under the city charter with the city, and of the e education law, with respect to appointment of members of the Board of Education, that is as a city agency.

I do not think that is dispositive determinations case Your Honors.

That can be absolutely no dispute it performs a critical, expensive, important, governmental function.

This court in National League of Cities v. Usery treated Boards of Educations and public hospital systems as just as clearly governmental entities as what we generally think of as municipal corporations.

To answer Mr. Justice Marshall's question or to attempt to answer it, is it a municipal corporation, what do you call it I think we would fairly characterize it as a quasi-municipal corporation.

I think McQuillin, on municipal corporations would probably discuss it that way.

There are a host of arrangements whereby local Boards of Education are established.

Right now the Mayor of the City of New York would like to have a clearly city agency with him appointing a local chancellor.

If that would affect the outcome of this case because we change the nature or the appointment and what is the power --.

Justice William H. Rehnquist: Counsel, this morning I do not know if you sat here during the argument in the Memphis.

I gathered that all parties there conceded that the Memphis, utility was simply a division of the city.

Mr. L. Kevin Sheridan: Under the city charter apparently it is set up that way.

Justice William H. Rehnquist: And the mayor ran that like he did other divisions.

I take if that is not the case with the New York City school board.

Mr. L. Kevin Sheridan: The mayor appoints two members of the board I believe Your Honor and the bar presidents, I think each appoint one member.

It is in the brief, I think that is the way it is constituted.

Then they have certain statutory authority of New York State Education law.

But that is with governance and management of the local school district.

Justice William H. Rehnquist: But they do not themselves have taxing authority.

Mr. L. Kevin Sheridan: No Your Honor, many --

Unknown Speaker: Or the authority to borrow money.

Mr. L. Kevin Sheridan: Which in this case --

Unknown Speaker: They issue bonds, do they?

Mr. L. Kevin Sheridan: They do not issue bonds, they can not borrow independently.

They can be given funds by the state or the federal government or private policies as counsel noted.

I think that bring them even closer to municipality.

I frankly do not believe it should be dispositive.

I do not live in City of New York, I live I in a suburb with a local board of education taxes and can borrow.

Justice William H. Rehnquist: Well, then it varies from subdivision to subdivision within the state of New York?

Mr. L. Kevin Sheridan: Within the state of New York, surely, Your Honor.

In fact in many smaller localities probably the most expensive governmental function is provision of education.

I am not trying to argue against myself.

Those situations, and may I look for certain purpose and more like the separate municipality, here it is mixed.

One, I do not think the court should be engaged in this type of logic shopping.

So that you are going to have to-- how many angels in the head of the pin.

If you want go case by case, deciding and then it had to to come this court for final resolution, is this Board of Education so like --

Justice Thurgood Marshall: What do the statutes of New York say that the Board of Education of the City of New York is?

What does the statute say?

Mr. L. Kevin Sheridan: My recollection was the separate --

Justice Thurgood Marshall: I am going to have all the trouble of recollection.

Mr. L. Kevin Sheridan: Okay, then the answer Your Honor is --

Justice Thurgood Marshall: I think it is very important what the state considers destiny, what kind of an animal is this.

Mr. L. Kevin Sheridan: Looking not only to the state statutes, but the court decisions Your Honor.

The New York Court of Appeals has quite clearly said that this is an arm of the state, not subject to municipal home rule provisions, it is a separate body politic and corporate that may sue and be sued in its own name.

Justice Thurgood Marshall: And the statute is silent.

Mr. L. Kevin Sheridan: The statute merely establishes the Board of Education and that is --

Justice Thurgood Marshall: Is it in these records, the statute?

Mr. L. Kevin Sheridan: I do not know Your Honor, if you wish -- I can cite it to the court.

Justice William H. Rehnquist: Let me follow that up if I may, Mr. Sheridan.

Supposing that the -- this court were to hold in accordance with your opponents contentions that the individual defendants could be required to pay public moneys to redress past wrongs, what would be the source of those public moneys?

Mr. L. Kevin Sheridan: Your Honor, in the case of an action against the Board of Education --

Justice William H. Rehnquist: Well, that is what we are talking about here.

Mr. L. Kevin Sheridan: Well, this is mixed, board is sued as an entity, a party defendant, we have other defendants here who are public officials sued solely in their official capacity.

They have no independent power to order the control the City of New York to draw a check unless there is a judgment which they would forward to the controller.

Justice William H. Rehnquist: But if there were a judgment, they would forward it to the controller of the City of New York.

Mr. L. Kevin Sheridan: I would hope the controller would pay it if it was situation --

Justice William H. Rehnquist: What funds would he pay it out of?

Mr. L. Kevin Sheridan: General city funds, a fund that actually for claims and judgments, these be public money, There is not question on it tax wise.

Your Honors, I am not quite sure I understand my opponent's argument.

At one point he says, Monroe v. Pape is not in this case, it does not have to be dispositive here, but next moment, he is arguing it is incorrectly decided, I would like to speak briefly on that point.

Justice Douglas in Monroe v. Pape, Justice Marshall in Monroe v. County of Alameda, Justice Rehnquist in City of Kenosha and I might add, Mr. Justice Brennan and his dissent in Aldinger v. Howard all discussed the legislative history, what is now 1983.

Uniformly, no dissent on this issue, not intended to reach local governmental subdivision.

Congress, since 1961, I believe has acquiesced in this view.

There is presently pending in both the Senate and the House, in measure -- and it is senate 35 introduced by Senator Mathius in the senate proposing to overrule that decision as well as Imbler v. Pachtman, and various other cases.

Congress has been aware of the interpretation placed upon 1983 by this court, it has acquiesced this interpretation which to most lawyers meant you could not get our money judgment against the municipality.

When Congress was dissatisfied with the Alyeska Pipeline decision, the next year he changed law, at least on the civil rights action.

I would suggest these considerations indicate that this matter is appropriately to be addressed by Congress which has acquiesced through 16 years in this line of decisions, in a sense Your Honors have been grafted onto the statute, an important judicial clause that takes on independent meaning.

But if we are going to reexamine, the intent to the Congress at 1871, I would suggest that Congress not only was not aware of the need for devising a fiction such as Ex parte Young represents, but it never would have seen any need to.

This was a statute directed at nightriders, the Ku Klux klan and state officials would not accord justice to people injured.

Today and I think no issue to this, it guarantees to public employees, their job security, it guarantees to welfare recipients, the right to pre-termination hearing.

It may even provide for notice to cut off gas and electric companies, it has come a long, long way and sometimes we have had Boards of Education or cities named defendants in 1983 action.

Unknown Speaker: And it remained more abundant for a long time did not it?

Mr. L. Kevin Sheridan: It certainly did Your Honor and I come from the city where the traditional liberalism is fairly widespread and I am not going to take issue with the development of law.

In one sense this has become a great charter of liberties analogous to the Sherman Act, not the Sherman Amendment, the Sherman Act and the economics of that.

I appreciate that.

Nobody wants to roll the clock back.

Let us look at the context in which relief has been accorded and let us look at the relief accorded.

Typically injunctive, declaratory relief and incidentally maybe damages, I know that but before this court, in the LaFleur case, City of Cleveland Board of Education was primarily should they get an order striking down mandatory maternity leave.

Court noted in opinion that appropriate damages or injunctive relief, back pay within state.

As far as I am aware, this is the first case that squarely poses to this court, the issue of how this statute should be construed and what is really an issue is damages and this is an equitable restitution, it is not some sort of equitable decree.

This is just like the money judgment you get and you can sell the property, and the courthouse steps.

Unknown Speaker: And you are saying I think it would not make any difference to the school board where had its own sources of funds, had its own taxing --

Mr. L. Kevin Sheridan: Your Honor, I can not predict the outcome of this case.

Unknown Speaker: Well, I know, but you are making that argument.

Mr. L. Kevin Sheridan: I think to the extent we are going to engage in formalistic type distinctions then my case is closer to a municipality than the more independent school district.

I think I have got a a fortiori case I suggest it should be decided more broadly.

Unknown Speaker: What if it were to be held that there is jurisdiction to give a judgment against the school board member as a member of an all the judgment would require him to do is to send the voucher into the controller of city and that the judgment did not require the controller to pay it.

Would that satisfy your --

Mr. L. Kevin Sheridan: Your Honor, this is so unknown to me, I am asked to predict what the controller will do, he may send it right back to the official --

Unknown Speaker: I am not asking to predict what the what the controller would do, I am asking, if the court expressly said that the judgment does not run against the controller.

Mr. L. Kevin Sheridan: Okay, if it does not run against the corporate entity, it runs against the individual sued solely in his official capacity.

I am at a loss to know the authority for the Comptroller to pay that judgment.

He has --

Unknown Speaker: So, my question is would that satisfy your worries?

Mr. L. Kevin Sheridan: All it does, it enhances my worries.

You Honor, I do not know what the controller would do, I do not know what the District Court would say, with the remedies of the plaintiffs in this context.

It is so unorthodox what these people propose.

I mean, if you order Chancellor of the Board of Education to integrate schools, for bus.

He does not do it, your remedy is clear, contempt.

If he does certain other things, there is no guarantee, the city is going to pay his contempt judgment, this is in indemnity clause of statute, but there is not guarantee.

If he is sued in his individual capacity because he unconstitutionally dismissed the child from school, I mean there is a damage aware, absent that indemnity statute which this court has held irrelevant to determination of this issue in the Moor case.

Unknown Speaker: Well, of course, the city neither the city not the controller is a party to the state.

Mr. L. Kevin Sheridan: They are the real party in interest Your Honor, they really are, we are not that.

Unknown Speaker: Do you think that if the judgment was not paid, the voucher was not paid, the controller would be held in contempt?

Mr. L. Kevin Sheridan: I do not know Your Honor, I do not know if you have controller here is defendant.

They do not?

I have the controller.

Chief Justice Warren E. Burger: Before you leave this hypothetical, Justice White's hypothetical, I took it that way, does that have some elements of an advisory opinion of the court to say this is what ought to be done, but we expressly say that the controller does not have to pay any attention to it and the individual defendants do not have to respond in the money judgment?

Mr. L. Kevin Sheridan: Your Honor, if the court is going to advise the parties that a judgment can be enacted that the parties do not have to pay any attention to, then I think that judgment is wrong.

It does not make any sense.

Chief Justice Warren E. Burger: Well, does it have some elements of an advisory opinion of the court or how would you characterize it other than being wrong, as you see it?

Unknown Speaker: And as the Chief Justice sees it.

Mr. L. Kevin Sheridan: It might be improper as an advisory opinion, maybe we should be ignorant as to what to do and then litigate that issue frankly, I do not think is before the court, I think it impinges upon the decisional process, how much uncertainty you want to --

Unknown Speaker: Well, but your friend, that your friend also counseled us not to be concerned about whether the court's judgment if if it resumed for him, whatever be acknowledged or have any response.

Mr. L. Kevin Sheridan: Your Honor, very respectfully, I disagree with my friends advise to the court, I think it is quite important that you think out, I am sure you will.

The implications of what is being decided in this case.

It really gets down to how we take in Section 1983 far, far beyond, anything its draftsmen Congress did enacted it ever contemplated.

Unknown Speaker: Mr. Sheridan may I ask you a question about significance of e how the judgment is paid in a case of this kind but your opponent says, we should not be concerned with that, but I guess you are saying the case is and perhaps we should.

Supposing we had a case on its facts like Monroe against Pape, where police officers were guilty of misconduct and the police chief and so forth and there were judgment for damages against the New York police officers.

Would that judgment be paid from municipal firms?

Mr. L. Kevin Sheridan: It would Your Honor only pursuant to a local indemnity statute and in not all cases, we pick and choose frankly, the cases in which we will indemnify.

Unknown Speaker: But in deciding whether or not to impose liability, should that fact be considered by the Trial Court in the 1983 Action?

And if not in a police officer case, why should it be so in a school board case?

Mr. L. Kevin Sheridan: Your Honor, I am not sure I fully comprehend the the point at this kind of question, but I do recall that Mr. Justice Marshall's Moore v. County of Alameda opinion that was mentioned the fact that there was a local state statute indemnifying the officials sued there and it was urged there that this should affect the outcome of that case.

The court specifically rejected that line of reason.

What I think is critical here is not whether this is indemnity or what local officials are going to do, I raised the question of do you have a judgment that makes practical sense to answer because I see it as a difficulty.

Another reason for the court not extending 1983 in the fashion tear sought to extend it.

The more fundamental question Your Honors is one really or both construction of the statute, this court in one sense has one line of case, that is consistently indicated should be limited in its enforcement , the way the Congress that enacted it and intended it.

Let me be --

Justice Thurgood Marshall: Mr. Sheridan, are not you wrong about policeman suits in New York and as a matter of fact they are settled out of court by your office?

Mr. L. Kevin Sheridan: Not uniformly, Your Honor, not uniformly at all.

Justice Thurgood Marshall: Pretty uniformly.

Mr. L. Kevin Sheridan: Your Honor, plaintiff's bar has as much interest in settling those cases as we do.

Justice Thurgood Marshall: The law is most demonstrated in your office.

Mr. L. Kevin Sheridan: I do not know the number that we have your honor.

I know some are litigated and they get expensive sometimes.

I do not think that is one of the the point here, one point I would like to make as I understand the petitioner?s argument.

They really want to take 1983 liability imposing on municipality and other governmental entities, in a situation which would operate even more harshly than the aborted Sherman Amendment would have acted.

It is notable that there is absolutely no claim here at the official conduct complained of would be actionable as against the individuals involved in their individual capacities.

This is sort of the penultimate strict liability, you were wrong when you had a mandatory maternity leave policy for whatever good motives concerned for the mother, the child, the school children, you were wrong.

We now have a Class Action based upon the enlightenment flourished by this court and you should not have such policies however well intended.

It is not simply respondeat superior liability, you did not pick your employees.

More precisely, it is government qua government in your legislative and executive and administrative capacity you were wrong.

So now you are going to pay damages and lets not kid about it, you are going to pay damages that is what they want that is what they asked for an amended complaint.

They do not ask for equitable restitution.

Now you are going to pay for that.

106 years after Congress Act with not one thought in its mind that it was doing anything like this.

Undoubtedly that Congress also did not realize that it was giving job security to tenured public employees, welfare recipients, any number of host of all instances where I take absolute no issue with the actions of this court.

Unknown Speaker: Well that is because of changes in the construction of the Fourteenth Amendment not because of changes in the construction 1983.

Mr. L. Kevin Sheridan: The basis for relief Your Honor is 1983, to date this court has not said they sue directly under the Fourteenth Amendment.

Unknown Speaker: Well certainly if I read the cases that I think you are referring to about job security and those sort of things, they would not have been afforded by this court in the absence of some construction of the Fourteenth Amendment.

1983 just says a if you have violation of the Fourteenth Amendment.

Mr. L. Kevin Sheridan: I appreciate that Your Honor, it is expanding Fourteenth Amendment notions what due process and equal protection guarantee.

Unknown Speaker: Mr. Kevin if it also say are the violation of laws of the United States.

A new statute it is all about.

Mr. L. Kevin Sheridan: It may have been a reference to the earlier reconstruction acts making it violation, criminal violation, so now you have in addition have a civil remedy for this type of action.

Your Honors --he same need for a fiction and this court has itself characterized Ex parte Young as devising a fictional remedy, the same need for a fiction is called for here and why I will be blunt, when it comes to damages and damage actions 1983 is about as blunderbuss an instrument as there exist, it is not tailored to the situation, it is not like Title 7, where you have procedures to go through and limits, discretion of the court with respect to back pay.

Here you establish liability and they say ipso facto we get the judgment, you show the liability and the damages and that is it case is over.

A line of cases involving officials and whatever immunity they enjoy for their official action, this court has placed a gloss in 1983 by reference to common law immunities.

I am not asking for a common law immunity to be found somewhere.

I think my job is easy Your Honors.

I am saying here we know what the intent of the Congress was, no such judgments allowed against municipalities or local sub divisions of the states.

We do not have to look to Harper & James on the Law of Torts.

Your honors, if the plaintiff's, petitioners here prevail in this case they will have opened up a major area for litigation which will be ruinously expensive for Municipalities Boards of Education.

There is no action taken by government officials today that probably 10-15 years later will not be subject to constitutional litigation and we may lose the best, the good faith under this theory is irrelevant.

Now on these circumstances, Your Honor if these plaintiffs and the Class Action, certified class action I do not know how many were involved in this case, could conceivably be tens of millions where they are not without remedies they can seek a the preliminary injunction, district court and go to state court to get relief.

There is a balance that must be struck, I think it is fairly obvious balance without being slavish the intent of an 1871 Congress, the court can consider as it has an earlier case as what that Congress intended and give effect to it, not just because of the strictures about statutory construction in judicial legislation.

That does not always decide cases.

I would suggest that when you study and consider balance, considerations the equity is here, it just does not make sense to allow a blunderbuss instruments such as this to be made available.

We are not talking about equitable restitution, we are really talking about damages and we are talking damages paid to classes of people, god knows how large the classes will be, what the amounts in question will be and if the deeper pocket theory of tort recovery has to operate, real politics of tort analysis but I would also add, the pocket is not deep, its broad, its not deep.

It is not irrelevant that the cities are in trouble, they are having trouble providing essential services, it is s not irrelevant that the cities can not practically go into bankruptcy, but that that they are not judgment proof that is not irrelevant.

I am saying please think seriously about imposing additional large, substantial burdens on governmental entities that are already strapped over burdened finding it difficult to function.

We laid off 5000 policeman in New York City, 11,000 teachers, we laid off lawyers, we laid off legal secretaries, law secretaries to judges, other cities are in the same boat, small municipalities, small school systems, they could be literally bankrupted.

Unknown Speaker: Did you lay off any judges?

Mr. L. Kevin Sheridan: There is some complaint about the Mayor not appointing some until the election was over, your honor.

Judges enjoy a rare status in New York.

It goes beyond even good behavior.

Your honors I think you have my point, I thank you for indulgence.

Chief Justice Warren E. Burger: Thank you Mr. Sheridan.

Thank you gentleman.

The case is submitted.