CAREY v. PIPHUS

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Argument of Earl B. Hoffenberg

Chief Justice Warren E. Burger: We will hear arguments first this morning in 1149 Carey and Others against Piphus.

Mr. Hoffenberg you may proceed whenever you are ready.

Mr. Earl B. Hoffenberg: Mr. Chief Justice and may it please the Court.

This case is here today for determination of the right for an award of general compensatory damages in a failure to provide an adequate due process hearing where the plaintiffs neither proved any individualized injury or any pecuniary loss.

The issue before this Court is whether or not the Circuit Court of Appeals for the Seventh Circuit erred when it determined as a matter of law, general compensatory damages must be awarded for violation of the Civil Rights absent some proof of individualized injury or pecuniary loss.

Briefly, the record reflects the following facts.

We have a consolidated matter before the Court, we have two plaintiffs Mr. Silas Brisco being the first.

Mr. Brisco was a student Chicago public school system.

During the year of 1972-73, the school which he was attending was changing from a predominantly white school to that of the black school.

During that time, the school officials noted that there were some gang activity in the school in around the area and some gang recruitment and had occasion to observe that during that period, wearing of an earing was -- that some student for wearing earings during that period of time and decided on that basis after conferring with two or three of the school officials determined that it was necessary in the interests of safety to ban the wearing of earings.

Mr. Brisco was on actual notice of this ban.

In May 1973 Mr. Brisco was observed wearing an earing.

He was told to remove it, he refused to remove it.

His mother was called then, after extensive conversation with the District Superintendent, Mr. Brisco removed the earing and no further incident occurred.

In September 1973, when school reconvened on September 11, Mr. Brisco again wore the earing to school.

The System Principal and the Principal instructed Mr. Brisco to remove the earing, he denied. He refused to remove the earing.

Mr. Brisco’s mother was called.

She came in and she supported Mr. Brisco’s refusal to remove the earing and Mr. Brisco was suspended for 20 days for his failure to remove the earing.

Mr. Brisco served 17 days of that suspension and was voluntarily readmitted pending motion for preliminary injunction at the trial District Court level.

Mr. Piphus was a high school student in the Chicago public schools and on January 23, 1974, Mr. Piphus was observed that on school premises with another young man, outside the building, but on the school premises he was observed by the principal smoking and passing, what the principal characterizes an irregularly shaped cigarette.

As the principal approached he had occasion to observe or smell an odor what he believed to be marijuana.

As he approached, the cigarette was either discarded or at some point cigarette was discarded as he was taking the two pupils back to the -- The System principal was the disciplinary at the school.

The two boys denied any smoking of any marijuana.

They were taken back the Principal instructed the System Principal to follow the usual procedures of the 20 day suspension.

This was followed and Mr. Piphus was suspended along with the other young man for 20 days.

Some time later subsequent to the District Superintendent reduced the suspension and Mr. Piphus was out of school for eight days.

The District Court in this matter sitting as a triar to fact on the stipulated record, determined that the defendants failed to provide an adequate due process hearing, because he determined that the 20 day suspension triggered a need for a full evidentiary hearing.

He further found that there was no good faith defense available to the defendants.

Although he did observe that Wood v. Strickland, in which this Court determined and qualified immunity to the board members and board employees, he did observe that we do not have to predict the future to constitutional law and since this case arose prior to Wood v. Strickland, he said that necessarily would not apply but the doctrine of Linwood v. Peoria, Seventh Circuit case which said that anything over seven days may trigger a need for a full evidentiary hearing.

He said, based upon that rationale the board would not be able to have a good faith defense and if that was unavailable to the board.

Although he did observe that this was not -- that obviously the educators were trying to or were upholding the integrity of this educational process.

He further found that although they were entitled to damages for the violation of the deprivation of an adequate due process hearing, there was no proof of any evidence submitted nor any evidence which would even lead to a speculative inference, to form any major of the damages and therefore he allowed no damages and the case was dismissed.

The case went up to the Circuit Court of Appeals.

There was a motion for reconsideration filed, on the issue of damages.

The issue of damage was reopened and during dependency of the motion for reconsideration, the District Court judge passed away.

It was assigned to another District Court judge after considering the matter to the other District Court judge determined that the motion must be denied in the issue of damages and he stated the same reasons.

Basically there was no proof of any damages and there was nothing which would lead to any speculative inference which would allow measurement as to the extent of damages so, he also denied the motion.

The case went up to the Seventh Circuit Court of Appeals on the issue of general compensatory damages and as I have indicated before the Seventh Circuit Court of Appeal held that as a matter of law, the two individuals were entitled to general compensatory damages which was inherent and naturally wrong and as a matter of law and the measure of damages were not so small to trivialize a right of so large as provided windfall.

We believe that this --

Unknown Speaker: I take it that in neither the District Court nor the Court of Appeals, was there any finding or attention given to whether the suspensions were justified?

Mr. Earl B. Hoffenberg: No, the issue of liability was never question on appeal.

The main issue that was presented on appeal was the issue of damages and --

Unknown Speaker: I just want to know as a matter of fact that District Court did not address the question or make any findings about the validity of the suspensions?

Mr. Earl B. Hoffenberg: No, it did not, it did not reach that issue, just determined that we have violated the adequate due process.

And on --

Justice Thurgood Marshall: And you did --

Unknown Speaker: And on remand is there any kind of, any attention?

Mr. Earl B. Hoffenberg: Well, there would be only with regard to this Court on remand with regard to special damages, we did not petition.

The only regard to whether or not the suspensions were valid would be on remand with regard to the issue that was raised in the Seventh Circuit as to special damages.

The Seventh Circuit held also besides the general compensatory damages that the plaintiffs who raised this concept of in course of $65 per day to educate the child and the concept of cost, I do not remember exactly $52 per day to have the student go to an out of city school, that was raised in the concept of a special damage and the Seventh Circuit observed at that point, that if the case of remand had to determine what the validity that has as special damages, the petitioner in this case or the defendants would be able to defend that position by showing that they would have been suspended in any event, have they been afforded an adequate due process, but that was never --

Unknown Speaker: Suppose a District Court has addressed the question of the validity, the suspensions that had found that the students were properly suspended, how would that change your case?

Mr. Earl B. Hoffenberg: Well, of course, obviously if they found that they were validly suspended then I do not think the issue is not really in front of the Seventh Circuit is not really whether the suspensions are valid --

Unknown Speaker: Well, I just asked you - how would your case be changed--?

Mr. Earl B. Hoffenberg: With regard to --

Unknown Speaker: If the District Court had found the suspensions had been validly imposed?

Mr. Earl B. Hoffenberg: Well, if they found that was valid and would still to improve damages, I believe that would not change it because I think the Seventh Circuit dealt with it on the concept that regardless of the consequences of the suspension, we are not dealing with the suspension and its consequences whether or not it would be justified or whether or not it was valid, the question is whether or not you were entitled to damages just for the proof of the violation of the deprivation of the constitutional right, that is what we are dealing with because the case, Seventh Circuit held in a prior case which they have decided --

Unknown Speaker: And it might change the range of your damages?

Mr. Earl B. Hoffenberg: Well, may be special but not as a general compensatory damage because the Seventh Circuit really left the whole issue of whether or not the suspension was valid.

They said that does not matter.

There is something inherent in a nature of the deprivation.

Unknown Speaker: But that issue will be opened in the District Court?

Mr. Earl B. Hoffenberg: Only with regard to the special damages not to the compensable damages, not to the general compensatory --

Unknown Speaker: They are still open?

Mr. Earl B. Hoffenberg: That may be open, that is correct.

That issue of the suspension, I believe that the suspension would be open to as the special damages and I think we are talking about in that point a total of $114 specials, and I do not know $70 or $80 with regard to the other plaintiff and as to special damages.

Chief Justice Warren E. Burger: Well, as you are telling us now counsel that as to the compensatory damages it is the law of the case that it is based on this $65 since a day?

Mr. Earl B. Hoffenberg: No, Mr. Chief Justice, the law of the case as it stands now as regardless of what we are not here on the special damage issue, we are here on the right to recover for the general compensatory damages for that inherent in a nature, wrong for the deprivations of the constitutional right to an adequate due process hearing.

It does not matter that Court addressed the special issue differently that $65.

That is not the issue that is something which the Court tried to put a measure on some special damages that on rule, so we speak on terms of this $65.

It dealt with that terms of special damages.

They say it does not matter, if you do not have any individualized injury, no pecuniary loss, does not matter you are still entitled to general compensatory damages for the deprivation of a constitutional right.

Chief Justice Warren E. Burger: That is procedural constitutional right?

Mr. Earl B. Hoffenberg: That is correct.

Justice Thurgood Marshall: Mr. Hoffenberg, am I right you did not raise liability in the Court of Appeals?

Mr. Earl B. Hoffenberg: We did not raise liability that is correct --

Justice Thurgood Marshall: You did not contest it?

Mr. Earl B. Hoffenberg: We did not contest liability.

Justice Thurgood Marshall: And you are contesting it here?

Mr. Earl B. Hoffenberg: No we are not.

I am not contesting --

Justice Thurgood Marshall: As I read your brief I thought you are?

Mr. Earl B. Hoffenberg: I am not contesting liability.

I want to make that clear as I argue, we are contesting liability.

There were some questions as to the facts I do not think it is necessary to get to the issue of liability.

We have not raised that issue.

The main thrust of a lawsuit below was the question of our board rules, they were held to be that Court did not reach that issue.

We did not appeal the issue of liability and the case is strictly here on damages.

Liability was not raised and we are not here before this Court raising the issue of liability.

Justice William H. Rehnquist: So we are to take it here that the District Court and Court of Appeals were correct in deciding or assuming that these people were denied a hearing to which the constitution entitled?

Mr. Earl B. Hoffenberg: Yes, an adequate due process hearing.

I want to make that clear because it did not say, inadequate, the Court did not say it was failure to provide an adequate.

I do not think that Court suggests or I think the record will indicate.

They did not say, there was not any hearing.

They just said that there was an adequate due process hearing.

The question is whether or not this holding of the Seventh Circuit Court or the said Court of Appeals for the Seventh Circuit is inconsistent with both the common law rules for damages and what some have commonly referred to these 42 U.S.C.1983 actions as Constitutional Tort or Indignity Tort.

The traditional law of damages --well, let me start from the case, this Court ruled in Monroe v. Pape in 1961 that 42 U.S.C. 1983 must be read against that background of Tort Liability which makes a man responsible for the natural consequences of his actions.

With that concept in mind, we believe that as long as the basis of liability for this 42 U.S.C. 1983 action should be read against Tort Liability we should then look to the relief granted in tort law to determine what relief should be granted for violations of this 42 U.S.C. 1983 actions.

As this Court is well aware the traditional law of damages in which counsel concedes the common law rule of damages and Tort Liability does not recognize any loss other than that which is actual loss.

The law has always recognized as a Anglo-American law has always been compensation oriented, that is we compensate the person to the extent that money can, to make that person hold, to put them him in a same position when he has been injured, when he establishes legal injury, that he would have been had the deprivation -- or be wrong not being committed.

To that extent we believe that the law in regarding compensatory damages has always been that you are entitled to compensatory when you have established your actual or your legal injury, your effect of damage.

There is a breach, there is a duty, there is a breach of that duty.

There is a legal injury and once you have established that legal injury, you are entitled to recover based upon the effect of damages.

We have also recognized that just because once you have established the effect of damage, just because as the amount cannot be determined by any measurable standard, that amount has to be cast upon the wrongdoing defendant.

Once you have established the effect of damage because the Court has recognized that once you have established the effect of damages you can leave the jury to determine what value they are going to assess upon that injury that --

Justice William H. Rehnquist: Counsel --

Mr. Earl B. Hoffenberg: Yes sir.

Justice William H. Rehnquist: In your reply brief you quote from the dissenting opinion in Bigelow v. RKO from what you have just said I take it you accept the principle laid down by the Court opinion in that case and in the story of Pachtman that if some damages are established the fact that you cannot put a precise dollar value on them, does not mean you get no award of that?

Mr. Earl B. Hoffenberg: We are absolutely agree with that proposition.

If you established your effect of damage, if you established your legal injury, defendants cannot be held to say well, these damages are speculative, therefore you are not entitled to it.

We take the position that once you have established the effect of damages just because an amount cannot be placed upon it, the jury would still be left it to make that determination what they want to place upon that violation of that breach of the duty.

Justice William H. Rehnquist: But you say the plaintiffs here did not even establish that?

Mr. Earl B. Hoffenberg: Plaintiff, there is no proof and both, remember it, two District Courts determined that there was no proof of that in the evidence and the Seventh Circuit --

Justice William H. Rehnquist: There is no proof of what?

Mr. Earl B. Hoffenberg: No proof of damages and nothing which would even form any speculative inference which would lead to any measure of damages.

In other words, --

Justice William H. Rehnquist: No proof of injury?

Mr. Earl B. Hoffenberg: No proof of damages and again to problem we deal with is in concept to the general terms of damage and injury.

If I have a duty and someone breaches or I breach the duty, I may be injured, but that is as a general concept but may be that --

Justice William H. Rehnquist: You may have injured somebody else that is what you are saying?

Mr. Earl B. Hoffenberg: I am sorry.

I may have injured somebody else and that person may have in fact been injured in a general sense, but that does not in and of enough itself entitle to relief until he is established that he has in fact in damage or he has established the effect of damage.

The best example I can give you Mr. Justice would be in lot of real action, if you negligently running to me you may cause me injury, I am injured, that is still just the fact that I am injured does not entitle me to recover.

I must establish as a result, I broke my arm then the jury can determine breaking the arm.

Actual injury and they can assess an intangible loss, the pain and suffering that may be attached to that actual physical loss or an intangible loss.

We also recognize and I am going to get into that, we have recognized that compensatory damages, the nature of compensatory damages are two-fold -- the special damage which is to compensate the actual tangible out of pocket loss and the general compensatory damages which is to compensate the actual tangible, intangible losses such as mental distress, such as pain and sufferings, subjective pain and suffering, embarrassment, mental anguish, emotional distress.

We have recognized that once you have established, this effect of damage you have been humiliated, you have suffered some pain and suffering, you have suffered some type of embarrassment, then at that point, it is up to the triar of fact to determine what amount they want to assess against the defendants, once they had established the effect of damage, that intangible loss.

The Tort Liability or the tort rules of damages in tort law have recognized that where there is no actual or legal injury that shall be no recovered; however, the common law has recognized and I think this Court is well aware and I think based upon the decisions in the petition for certiorari and the amicus, all the Circuits, I should not say all, many of the circuits - the First, the Second, the Third, the Fourth, the Fifth, the Tenth have recognized that where there is an invasion of some paramount right and you have not established any actual or real injury, you are entitled to nominal damages.

A recognition of this, just of the violation of the right setting up this person, setting up the rights for the parties and recognized that in that situation where you have not established any damages, you may award nominal damages.

Justice William H. Rehnquist: Now that rule is contrary is it not, to the common law where at contract or at contract, if you proved the breach of contract, you are entitled to nominal damages but in tort negligence the existence of damages was part of your claim for relief and even if you get show a wrong if you could not show damage, you were not entitled to even nominal damages?

Mr. Earl B. Hoffenberg: That is correct, but the law has developed in the circuits and in the lower courts and the District Courts, after the Monroe case by the way --

Unknown Speaker: On Constitutional Tort?

Mr. Earl B. Hoffenberg: Constitutional Tort, after Monroe 1944 I believe there were something like 23 cases filed in the District Courts for violations of 42 U.S.C. 1983, 1961 prior to the case of Monroe v. Pape where this Court decided there was something like 283 cases filed, in 1972 there is something like 8,000 cases filed under 42 U.S.C. 1983 and in 1976, there were something like over 16,000 and during that the reason I bring this subject, during that transitional period the lower courts and the Court of Appeals for the Circuits started recognizing the right to recover for this intangible loss and they also recognized the right to recover nominal damages.

You may recover nominal damages when you have established the breach of the constitutional right or a Constitutional Tort.

The Seventh Circuit, the question also turns around whether the Seventh Circuit, created a new relief.

Our position is that Seventh Circuit created a new relief for the violation of 42 U.S.C. 1983 which had not been previously recognized in our compensation oriented Anglo-American law.

Unknown Speaker: Something called general damages was known to the common law?

Mr. Earl B. Hoffenberg: That is correct.

I think that in order to make a determination here, we have to break them up in terms of general and special and before this Court we have to determine whether or not --

Unknown Speaker: Punitive is not here in this case at all?

Mr. Earl B. Hoffenberg: No, the Court said that both courts say that is not punitive.

Unknown Speaker: Then we have special and general?

Mr. Earl B. Hoffenberg: That is correct.

Unknown Speaker: And you say there is no proof of any special damage here?

Mr. Earl B. Hoffenberg: Well --

Unknown Speaker: Perhaps there was but that is out of the state --

Mr. Earl B. Hoffenberg: That is correct we do not know The District Court determined that there was no proof of any damages.

The Seventh Circuit said there was also some indication that (Inaudible) and special, but that is not here though --.

Unknown Speaker: But that is not here though?

Mr. Earl B. Hoffenberg: We are here on the concept of the general --

Unknown Speaker: And the concept of general damages was familiar to the common law?

Mr. Earl B. Hoffenberg: That is correct, absolutely.

Unknown Speaker: And what did it mean?

Mr. Earl B. Hoffenberg: General damages meant a loss for this intangible.

This is something that you cannot put a monitory value.

This is a general loss, something you do not have out of pocket, not something which you can put --

Unknown Speaker: And it is more than nominal.

I mean it was not inevitably limited to nominal?

Mr. Earl B. Hoffenberg: No, it was not, no.

If you prove the effect of damage then, if you prove that humiliation, if you prove that pain and suffering, you are entitled to recompense for that and then it --

Unknown Speaker: And you have to first prove the broken arm, is it not?

Mr. Earl B. Hoffenberg: Well, I think you did in terms of establishing more than just a general injury, if you establish a deprivation of any right, if you are negligently breach a duty which you owed to me, I have to establish some type of effect of damage.

I cannot just again, the courts have recognized, the common law courts have recognized that you just cannot let the jury speculate just inform these violations --

Unknown Speaker: Then what the general damages mean by the common law?

Mr. Earl B. Hoffenberg: General damages mean a right to recover as I see money damages --

Unknown Speaker: Money award?

Mr. Earl B. Hoffenberg: For a violation or some right to duty owed where you have established some type of injury as a result.

Unknown Speaker: And is that not really what the Court of Appeals did here?

Mr. Earl B. Hoffenberg: No, it went farther because it said, it left out the effect of damage.

It presumed some type of effect of damage, just from the deprivation of the constitutional right.

It went farther then, the Court of Appeals said, you established a deprivation of the right.

There must be some injury here, but again it is a generalized injury.

It has not established that in fact, these plaintiffs have been injured or that it did was, well there must be some injury which is inherent in the nature of the wrong.

It did not focus on the individual loss or the effect of damage to that plaintiff.

I think that --

Unknown Speaker: Mr. Hoffenberg, would this case be different if the issue were a denial of either -- let me give you one example, a right to vote or secondly, if there were a deprivation of the right to be free in a legal search and say someone in search, but no mental suffering in either case, just the bear injury would it be the same issue?

And if so how would you decide those cases?

Mr. Earl B. Hoffenberg: Well, I think it would be the same issue.

I think that the courts and I think that you, in my briefs and in the counsel’s brief does refer to the voting right cases in the search and seizure cases, many of the search and seizure cases all hold this as far as we are concerned or most of them hold whether there is a deprivation of invasion of a search and seizure or violation of the Fourth Amendment, pursuant to Fourteenth Amendment, that you are entitled again to show any type of actual damage.

I think once you have established the actual damage are entitled to relief.

If you have not established, just established a mere deprivation of, an invasion of the right to be free from the search.

Unknown Speaker: In a voting case, how would you ever have actual damage?

Mr. Earl B. Hoffenberg: Well, in the voting right cases, I think that the actual damages, again, the intangible loss, I suggest two things about the voting right cases that plaintiffs had cited.

First of all or at that we are talking about, many of the courts, the lower courts and the Circuits deal with these voting right cases, the one that they deal with most of alls the case of Wayne v. Venable and that one says damages are presumed from the deprivation, but we look at that case.

That case is a conspiracy case, that case goes beyond than mere negligence, it goes too willful.

Also that case was decided by the Eighth Circuit in 1919.

Unknown Speaker: And what difference does willfulness make if you are not doing that it on a punitive theory?

Mr. Earl B. Hoffenberg: Well, that is the point.

That is why I am suggesting that if it is not punitive we have a different concept.

If it is punitive then many states have recognized, you are not entitled to recover for deprivation of the voting right case.

The majority of states now take the position that you are not entitled to a right to recover for a deprivation of a voting right unless you have established an actual malice or in some evil intent.

As far as the Wayne also, the Wayne case I believe if the Court looks at that case.

It says you are entitled to presume damages even though you have not shown any tangible loss, any monitory loss, could possibly, I think it suggests two things.

Number one, the idea that you do not have to show any actual damages to recover punitive damages, the idea that was established in Basista v. Weir the Third Circuit case and also I think it started to recognize as I indicated before, this right to recover for this intangible loss.

You do not have to prove that you have been out of pocket, that you have had any tangible loss.

You have a right to recover for this intangible loss.

I think, I would like to address myself also with the public policy.

Justice Thurgood Marshall: What loss is there by not been permitted to wear an earing?

You do not have the slightest idea, what that means to the person, do you?

Mr. Earl B. Hoffenberg: If it does Justice Marshall --

Justice Thurgood Marshall: But should we not have a trial and found out?

Mr. Earl B. Hoffenberg: If he was injured because he was wearing earing and he was deprived of something, if he testifies his injuries resulted at, then he may be entitled to, may be there was injury.

I am suggesting that may be there is some injury there.

They are may very well be, but on the other hand --

Justice Thurgood Marshall: But would that not show up on his trial?

Mr. Earl B. Hoffenberg: If he testifies to it, of course and it is not here.

There is nothing to establish, there is nothing to establish that he has in fact been injured.

This Court recognized, I believe in the case of in the dissent.

Justice Thurgood Marshall: Well, man has a right to wear whatever he wants to wear?

Mr. Earl B. Hoffenberg: Well, if he is injured as a result of not being able to wear the earing, if he is injured then he is entitled to be compensated.

Justice Thurgood Marshall: Well, you know feel that he has if you --

Mr. Earl B. Hoffenberg: Not in these facts, not in this record.

Justice Thurgood Marshall: Well, how about the Tinker case of about the armband, was it (Inaudible) or injured?

Mr. Earl B. Hoffenberg: I do not recall exactly what the relief was granted in that case.

The armband case, I mean, the Tinker case the Tinker v. they talked about material and substantial disruption.

You have to show that there is some material and substantial --

Justice Thurgood Marshall: Well, I am just saying that --

Mr. Earl B. Hoffenberg: But in that case --

Justice Thurgood Marshall: And he was denied the right to wear the clothing that they want to wear or the jewelery that they want to wear?

They are not being denied something?

Mr. Earl B. Hoffenberg: But just being denied does it mean that if so fact that he was being injured and I thought --

Unknown Speaker: Well, Mr. Hoffenberg, may be I misunderstood this.

I did not think that the damage here was the denial of the right to wear the earing or denial of the privilege of smoking on the other hand?

Mr. Earl B. Hoffenberg: I was going to get that.

Unknown Speaker: But rather the denial of procedural due process --

Mr. Earl B. Hoffenberg: Exactly what the point is --

Unknown Speaker: And even if that had been accorded he might have been deprived of his right to wear the earing?

Mr. Earl B. Hoffenberg: That is correct.

Unknown Speaker: Of his privilege to wear the earing?

Mr. Earl B. Hoffenberg: That is absolutely correct.

The First Amendment right was never reached and in fact, the Court just talked about the adequate due process where that is --

Unknown Speaker: The denial of procedural due process?

Mr. Earl B. Hoffenberg: That is absolutely --

Unknown Speaker: There is nothing to do with the --

Mr. Earl B. Hoffenberg: It was never reached the First Amendment.

Unknown Speaker: Deprivation, well not of privilege of wearing the earing?

Mr. Earl B. Hoffenberg: That was never reached.

Unknown Speaker: Or the deprivation of the privilege of smoking tobacco or marijuana whatever it was?

Mr. Earl B. Hoffenberg: That is absolutely correct.

Justice Thurgood Marshall: And then why we have all the discussions about general and punitive and all other kind of damages?

Unknown Speaker: The wrong is a deprivation of procedural due process.

Mr. Earl B. Hoffenberg: That is correct.

That is what the wrong.

Justice Thurgood Marshall: Is that your answer?

Mr. Earl B. Hoffenberg: No, my answer to your question is we --

Justice Thurgood Marshall: Well, that is what I was trying to hear --

Mr. Earl B. Hoffenberg: The answer to your question in terms of why we are talking about general and special, we believe that the laws available under the concept of the tort, the general rules of damages allowable in tort law are enough to compensate the person for a deprivation of this right, but he is got to establish some injury, he is got to establish some effect of damage for the denial of some right.

Justice Thurgood Marshall: Before?

Mr. Earl B. Hoffenberg: Before he is entitled to recover damages.

I would like to address myself at the time I left to caution a public policy also which should be considered here and the question before the Court is also whether the Court should adopt this new relief.

Court faced with this question we have to balance the interest here and I think we should look to the prior decisions in this Court in Wood v. Strickland and in Goss v. Lopez, the right to due process or the suspension and also the qualified immunity and I think it is clear that the majority opinion in the Wood case suggests that we really should leave management of schools to the school districts, we really should leave the school districts alone to run their schools and we really should be in a position not to deter qualified people from becoming board members, from becoming board personnel and we should not impose --

Unknown Speaker: Mr. Hoffenberg, if I could interrupt, this argument goes to the procedural due process, the policy above there.

But if I understand your earlier statements, the same problem involved is raised when you got a Fourth Amendment question or like this question where you do not have school boards at all?

Mr. Earl B. Hoffenberg: That is correct and I think we --

Unknown Speaker: Was the school board policy cut across the whole spectrum of constitutional rights?

Mr. Earl B. Hoffenberg: Yes, I think so because again, even in Fourth Amendment right situations the concept of having these police forded with this concept of not being able to -- I do not want to deal very much, I know this Court is dealing with the exclusion and I do not want to deal as much with the Fourth Amendment, but I do want to point out that where there is a deprivation of Fourth Amendment right.

There are policy considerations there, whether or not you are going to not allow police officers or you are going to require police officers to almost look, torts what they are doing if there is a later determination that what they did even though was not negligent, caused some deprivation, even it was negligently and he had to look before deterrent effect of the police officers as we do to deterrent effect here, whether or not we should deter the police officers, whether we should deter the qualified board members, whether we should deter their duties as opposed to the possible benefits that would approve to the plaintiffs in this matter.

Unknown Speaker: But if this case comes to the losses, I understand what you have earlier said that there was a violation of procedural due process and any good faith defense is out of the case?

Mr. Earl B. Hoffenberg: That is correct when dealing --

Unknown Speaker: Well, then so you are saying there was a knowing violation of procedural due process and that is the way the case comes to us?

Mr. Earl B. Hoffenberg: Well, I believe, I understand --

Unknown Speaker: It is meant or not?

Mr. Earl B. Hoffenberg: Yes, but I want to extend that idea of the immunity also this policy consideration and I --

Unknown Speaker: But not for that?

Mr. Earl B. Hoffenberg: Excuse me.

Unknown Speaker: Not for a knowing violation?

Mr. Earl B. Hoffenberg: But when you say knowing, it is constructed now in situation, you should have known and this case observed that in dissent of this case, in the case of Goss v. Lopez, this concept of should have known deals with, you should have known that your violated constitutional rights deal with the known constitutional law and as the dissent says knowing constitutional law it is a 5:4 decision.

Look how close it is and we are talking about knowing what constitutional law?

In conclusion I would like to point out that we should leave the operation to the school districts and we should also leave the possibility of money will be taken out at tax payer’s end, if they are indemnified, the tax payers will have to pay for and wait against the probability of some speculative damages one far waives the other one.

Thank you very much.

Chief Justice Warren E. Burger: Mr. Elson?

Argument of John S. Elson

Mr. John S. Elson: Mr. Chief Justice and may it please the Court.

So far as it is important to point out that petitioners’ argument is directed against only one of the Seventh Circuit’s foregrounds for reversing a District Court, this now is very clear.

The petitioners have not argued that it was erred for the Seventh Circuit or reverse the District Court for its failure to grant declaratory or injunctive relief or for its failure to consider the evidence that was in the record which quantified respondent’s injuries from being wrongfully denied by the educational services for a 17 days school, therefore regardless of how this Court feels about the question raised on this petition, it will be necessary to remand this case in order that the District Court can enter the appropriate declaratory injunctive relief and can determine the damages which are appropriate for the wrongful deprivation of respondent’s educational services.

Chief Justice Warren E. Burger: Now, you are going beyond the damages for the denial of the hearing, the due process violation?

Mr. John S. Elson: Yes, the --

Chief Justice Warren E. Burger: And you say that there are two elements of damages now to be determined one for the denial of the hearing and the other for the loss of the schooling?

Mr. John S. Elson: Right--

Unknown Speaker: That is in the District Court, but not here.

Mr. John S. Elson: That is in the District Court now we are just clarifying that that is not here and that is not before this Court, so this case will have to be remanded back to the District Court for determination of those damages, regardless of how this Court determines the issue raised on the petitioner.

In view of petitioner’s statements of facts in their briefs and partly here, I think it is necessary to clarify that certain findings of District Court are not in issue before this Court.

First, as now, it is crystal clear there is no question that the petitioners have violated due process and they are liable for damages under Wood v. Strickland and second, despite the petitioners’ characterizations of respondents there is no basis for a disputing the District Court’s findings that the respondents always denied, the wrongdoing with which they were charged and that they were never given an adjudicatory hearing of any type and the District Court was clear on that point said specifically they were never given adjudicatory hearing.

Unknown Speaker: Mr. Elson I perhaps should not interrupt on this point, but you say it is clear they are entitled to damages, that is that what I understand it is clear that they are entitled to hearing at which the school board may offer evidence that they would have been suspended even had they been given a fair hearing then there would have been no actual damage?

Mr. John S. Elson: The Court of Appeals remanded for determination of possible consequential injuries.

The Court of Appeals stated that if the school board shows at that time before the District Court to show that they were in fact guilty of what they are charged with them, they do not get compensatory damages.

Unknown Speaker: And then your client will recover nothing unless you prevail on the theory that is in dispute here?

Mr. John S. Elson: That is correct.

Unknown Speaker: Which is what?

Mr. John S. Elson: What dispute is here?

Unknown Speaker: No, what is your theory here?

Mr. John S. Elson: Well, our theory is that it is incorrect as petitioners due to equate the remedies that are appropriate for constitutional violations with the remedies that are appropriate in breach of contract cases in technical trespass cases.

Now, in those cases as petitioners correctly stated you cannot presume damages injury from the violation of the right itself, you have have independent evidence of the injury.

Unknown Speaker: You mean harm I mean some --

Mr. John S. Elson: Of the harm.

Unknown Speaker: Some deprivation of --

Mr. John S. Elson: Right.

Unknown Speaker: Some tangible loss?

Mr. John S. Elson: Right, like walking across someone’s grass would not be a tangible loss and that it has something else for a technical trespass.

Unknown Speaker: What about hurt your feelings that is not the kind you are talking about?

Mr. John S. Elson: No, those are the types of injuries we are talking about that can be presumed from the violation where the interests which are protected by the right are of an intangible nature such as liberty, privacy, reputation, peace of mind, dignity.

The violation of the rights in those cases approximately and necessarily cause injury to those intangible interests and it is by (Inaudible) that the cases of invasions of privacy, and lied on slander per se, false imprisonment and false arrest, that harm is presumed from the very violation itself and no independent evidence of injury is required.

You cannot show such independent evidence of injury in order to increase your damages, but the cases are clear you do not have to show that type of independent evidence.

And many courts have recognized that exactly the same types of intangible interests that are at stake , that are violated in these common law tort categories are also injured in the violation of civil rights and petitioners --

Chief Justice Warren E. Burger: Let me test that out a little bit and see if I understand you.

On your illustration of claim, injury and damages where someone walking across your lawn, as the plaintiffs have showed merely that defendant had walked across his lawn and no more, that might justify a jury verdict of $1 or $0.25 would you agree?

Mr. John S. Elson: Yes, sir.

Chief Justice Warren E. Burger: But if it went very much beyond that do you think without any other evidence would you think it would be sustainable?

Mr. John S. Elson: If they were showing of the actual --

Chief Justice Warren E. Burger: Just started walking across the grass.

Mr. John S. Elson: No.

Chief Justice Warren E. Burger: No showing that the grass was injured or the grass died or anything else?

Just walked across the grass and the jury returned a verdict of $10,000, what would you think that appellate court would do on review?

Mr. John S. Elson: I think that the appellate court would reverse and find that their award was not justified by the showing of injury.

There are some early very early common law tort cases when this theory was being worked out, that did say that for the trespass alone, for the violation you can get damages, but that is not the law now.

It is fairly clear.

The petitioners had agreed with the many cases that showed the state that intangible injuries are caused by the violation of civil rights and the rationale for presuming damages from the violation of the right in the civil rights cases is exactly the same as the rationale for presuming damages in these common law intangible injury tort cases that I have mentioned here.

Justice Thurgood Marshall: Mr. Elson why is that not certain that a 20 day suspension is damaging where you have denied your education for 20 days period?

Mr. John S. Elson: To us very certain that that is a very serious injury.

Unknown Speaker: That is in the issue?

Mr. John S. Elson: No, it is not the issue.

Justice Thurgood Marshall: Well, that is a valid point, that is not here--

Mr. John S. Elson: That is not in this case because they have not raised that as an issue.

Unknown Speaker: When you civil rights, do you mean any right that is protected by the constitution?

Mr. John S. Elson: Yes.

Unknown Speaker: So that for example, in violation of article 1, a state official laid a tax or duty on articles exported from any state?

Mr. John S. Elson: I am sorry I misspoke.

I am talking about the bill of right in the Fourteenth Amendment.

Unknown Speaker: And why do you limit it to those?

Mr. John S. Elson: Because with respect to those constitutional right, there may be other constitutional rights.

I have not given the thought to the whole constitution, but with respect to those rights intangible injury can be presumed from the violation itself because they were intended to protect important tangible injuries and you cannot violate those rights without harming those injuries.

Unknown Speaker: But why do you presume that with respect to this particular category that you have delineated and not with respect to the rest of a constitution?

Mr. John S. Elson: Well, I suppose there would be certain types of rights where you just cannot presume any injury, within the bill of rights, that Eighth Amendment violation could not be presumed because in fact, there you have to have a showing of serious tangible types of injury and I suppose the same might be true with the interstate commerce clause, I am not really sure.

I have not --

Unknown Speaker: What is the principle that enables you to distinguish one from the other?

Mr. John S. Elson: The principle is that if the right in itself is inseparable from important intangible interests, for example, if a school should make public a student say a prayer against his religion then that violates his First Amendment freedom to pray according to the dictates of his religion and that in itself is an interest protected by the First Amendment or an intangible search is an example of that Mr. Justice Harland gave in his concurrence in Monroe of an unconstitutional search, in which the interest invaded there, is the interest of being secured in your home against arbitrary governmental invasion and that is essence of the Fourth Amendment or in this case --

Unknown Speaker: Does that include all the freedoms protected by the Second and Third --?

Mr. John S. Elson: I think it very well might --

Unknown Speaker: And Eighth, Ninth, Tenth?

Mr. John S. Elson: Well, Eighth is a different question.

Unknown Speaker: But you do not include the Eighth?

Mr. John S. Elson: I would not think you could in a presumed damage because it is fairly clear that in order to reach an Eighth Amendment standard, you have to make a showing of fairly serious harm to the person.

Unknown Speaker: So they include some of the rights of freedom is protected by the bill of rights, but not all --

Mr. John S. Elson: Not necessarily.

Unknown Speaker: And probably not any of the other protections of the constitution is that it?

Mr. John S. Elson: Well, not necessarily.

You would have to look at the right and see whether it protects some intangible interests.

Unknown Speaker: The constitution has a written organic structure of the Government of our society and it presumably protects us all --

Mr. John S. Elson: Yes, sir.

Unknown Speaker: In everyone of its provisions and how are you picking and choosing I am interested in it --

Mr. John S. Elson: Well, I do not believe that it would be appropriate for this Court to pick and choose and say certain rights, we cannot.

Unknown Speaker: And how are you, would you want, would you not?

Mr. John S. Elson: I am not picking or choosing now, I am just saying why I think that injury should be presumed from the violation of the right itself inevitably.

Unknown Speaker: Some of the provisions of constitution, but not all?

Mr. John S. Elson: Well, possibly not.

I certainly --

Unknown Speaker: Why do you say not the Eighth Amendment?

Mr. John S. Elson: I think it would be difficult because you already have to show objective proof of injury in order to qualify for an Eighth Amendment violation so there would be no need to presume damages.

Unknown Speaker: Denial of a speedy trial?

Mr. John S. Elson: Yes, certainly.

Unknown Speaker: Right to counsel or --?

Mr. John S. Elson: Definitely.

Unknown Speaker: But what about say denial of a jury trial, the claims that jury trials rights being violated and he is convicted, he appeals and it is reversed that saying that he was entitled to a jury trial on the circumstances of the case and then he brings a 1983 Act and recovers damages?

Mr. John S. Elson: Well, certainly at the time that he was denied his right to a jury trial, he did suffer a loss, he was treated unlike other citizens with the civil rights, I mean may possibly if the jury trial did not make any difference or damages certainly would not be enormous, would not be that way, but he did suffer a loss and that he was not given, he suffered certainly the indignity of not having his right to a jury trial or --

Unknown Speaker: Does he not have a tangible loss there presumably on appeal on this hypothesis, a new trial would be ordered because of the denial and you have one tangible measure of damages namely the cost of the first irregular trial, whereas he could show that he spent $4,000 in attorney’s fees in lost 11 days of work, would that not be specific damages showable under the special damage factor?

Mr. John S. Elson: Yes, that would be one measure of this loss.

Unknown Speaker: And then we might get some general damages for the intangible, is that it?

Mr. John S. Elson: Yes, that is right.

Unknown Speaker: Mr. Elson, may I ask you a question.

I may have trouble articulating this.

I am having some conceptional difficulty with your proposition.

The right here to a fair hearing is not something that exists all by itself, there is no constitutional right to due process period, it is a constitutional right not to be deprived of liberty or property without due process.

So an essential ingredient of the constitutional violation is harm to either liberty or property, why should not the harm to the liberty or property interest always be the measure of damages for the violation of the due process right.

In other words, why will not your injury be that which is not before us rather than which is before us?

Mr. John S. Elson: Because according to the rationale of the Seventh Circuit and which we of course agree, there is a separate type of injury from being deprived of the right itself.

Unknown Speaker: But that assumes that there is a separate right to a hearing apart from the protection against some injury?

Mr. John S. Elson: Well, there is no injury and the injury from the right is not triggered until there is some deprivation of a protective liberty or property interest.

Unknown Speaker: But why should that not measure, if the magnitude to the harm?

Mr. John S. Elson: Well, because that is a separate type of injury and sometimes that will not be available, for instance in the employment cases.

Unknown Speaker: But if that is not available if that is zero, what is the constitutional violation?

If that is zero then there has not been a deprivation of liberty or property without due process of law?

Mr. John S. Elson: There has been at the time that the violation occurred.

There is certainly a right was taken away without -- these interests were taken away without giving these procedural rights.

Now, if it turns out later that in fact, the Government official was justified in taking away those rights, then he is not entitled to the damages because it was not unfair, he did not really lose anything by the deprivation of the right.

Unknown Speaker: But was he deprived to the liberty without due process of law?

Mr. John S. Elson: He was at the time of the deprivation.

Unknown Speaker: I still do not see why if that is true, why that is not an adequate measure of his damages?

Mr. John S. Elson: Well, may be if I can put an example of say a prisoner who is in prison say for five years by a jailer without being brought before a judge, and it subsequently turns out that if the there is say, a 1983 suit that the jailer can show he was guilty of a crime that he would have been sentenced to the mandatory of minimum five year sentence.

According to the rationale of no presumed injury, there would be as if the right to a trial did not exist.

It would be as if he was not deprived of anything when this is one of the most fundamental of our constitution.

Unknown Speaker: Well, many rights are not necessarily protected by the award of monitory damages, they are protected in other ways - there are trial hours of constitutional magnitude are protected by a reversal, by a reviewing court for example not necessarily by the award of money damages, not every right is compensable when that is protected by that particular sanction, is it?

Mr. John S. Elson: No, not necessarily; however where there is a loss then damages of the traditional common law remedy in order to remedy of that loss.

Chief Justice Warren E. Burger: In addition to the new trial that is ordered?

Mr. John S. Elson: Yes.

Well, there can be.

Where it is just a common law principle.

Chief Justice Warren E. Burger: I took your answer to mean whenever a new trial is ordered because of the trial error that in addition to being compensated by getting a new trial which is the traditional remedy for that problem.

There is also 1983 claim for damages?

Mr. John S. Elson: No, certainly not necessarily.

Chief Justice Warren E. Burger: I thought that there --

Mr. John S. Elson: There would have to be a showing that the violation of his right was knowing or negligent or that the official should have known that he was violating the right certainly if it were done by a judicial officer with absolute immunity or in the state’s attorney, so that would be very unlikely that that would actually happen.

Unknown Speaker: But that is just because of immunity of a particular defendant and it is not because the right, and (Voice Overlap) has to be somewhere and for the loss?

Mr. John S. Elson: Yes there may be is a real loss.

There may be a real loss and as I believe there is a real loss and somebody is deprived of a right to a trial.

Unknown Speaker: And whether rights are to be indicted before you could be charged, before it would be tried in a criminal offense, in a federal court, that is a constitutional right?

Mr. John S. Elson: Yes, sir.

Unknown Speaker: And if you have waived it then you have a right of action if you have been tried as a result of information but not an indictment.

Mr. John S. Elson: Yes.

Unknown Speaker: For monetary damages?

Mr. John S. Elson: Possibly if all the requirements have been met.

In further response to Mr. Justice Stevens’ question another reason for the injury suffered by the deprivation of due process is the lost opportunity to make your case to be initial triar of fact, and that is something different from the deprivation of the interest itself and that is something you can never know at that time what the opportunity to make your case to the discretionary judgment of the initial triar of fact would have availed, so even if it is determined later --

Unknown Speaker: I understand why a denial of a fair hearing can cause harm, I am not questioning that proposition, but I still must confess to some uncertainty about your response of the five year jailer case, even though you assume that if the jailer holds a man for five years without due process of law, I would suggest, that measures the value of five years imprisonment is the measure of damages for that deprivation of a constitutional right.

Then you say, well, but may be later on he will be tried and convicted?

Well, that still does not seem to me to detract from the proposition that the major of the harm was that he was deprived to his liberty for five years without any constitutional protection and that still is the measure of the damage for that constitutional right?

Mr. John S. Elson: Well, that may be one --

Unknown Speaker: And in this case it would mean the 8 or 12 days or whatever the children were out of school would be the measure of damages here?

Mr. John S. Elson: That may be one measure, but it would be a very drastic penalty on our Government to make them pay for five years imprisonment that should have been served and would have been served had due process not been violated.

In this sense, the Seventh Circuit --

Unknown Speaker: Well, but the protection against that normally is the judge gets immunity and there are all sorts of defenses, the damages are not awarded automatically in these cases?

Mr. John S. Elson: No, that is correct, but in the rationale of an employment case where those immunities would not occur if someone who has deprived of an appointment or without a hearing and it turns out that there was all sorts of cause to get rid of that person and the person is out say for ten years or something under that rationale, those injuries have been the only measure of damage, the damages would be tremendous for an employee who should have been fired and the Seventh Circuit’s position really is kind of a mere way between that.

It just gives damages for the actual harm suffered by the deprivation of the right.

Unknown Speaker: But let me put this case to you.

Supposing in this case, they brought the student before the principal and had some summary procedures that were clearly unfair, they quizzed him one way or another, but then they did not suspend him, you would not have any claim then?

Mr. John S. Elson: No, none at all because there was no protected liberty or property interest, that was violated.

Unknown Speaker: So obviously there must be harm in the sense of loss of property or liberty before the deprivation of a fair hearing, has any constitutional significance?

Mr. John S. Elson: There is not.

It triggers the harm.

Unknown Speaker: Well, on that basis if it is determined now in this case that there never was a violation in the sense that the suspensions were proper?

There was no deprivation of liberty.

Mr. John S. Elson: That is right.

Unknown Speaker: If that is determined as that indicates it?

Mr. John S. Elson: Yes if there was no due process violation on the first place --

Unknown Speaker: No, no let us assume on remand in a District Court, it is determined that the suspensions were quite proper, there were not any procedures but nevertheless the suspensions were quite proper --

Mr. John S. Elson: Yes.

Unknown Speaker: In that event, is there no deprivation of a liberty and there has been no deprivation of the right to stay in the school?

Mr. John S. Elson: That is right.

That would be our position, that is what the Seventh Circuit said, but the Seventh Circuit said nevertheless since there was a deprivation of due process at the time, you were deprived to something --

Unknown Speaker: Yes, I understand that you were deprived of your chance to have a hearing?

Mr. John S. Elson: Right and that is something --

Unknown Speaker: And you think that is compensable?

Mr. John S. Elson: Yes, that in itself is compensable.

Unknown Speaker: Is that inconsistent with the answer you gave to Mr. Justice Stevens?

Mr. John S. Elson: I do not believe it was.

Unknown Speaker: Yes alright, possibly.

Even though the injury to the liberty is zero, the right to stay in the school, the thing that triggered your right to a due process hearing, even if it is determined that that invasion was zero, you say that you are entitled to damages?

Mr. John S. Elson: Yes, it was later determined that it was zero.

because at the time you were deprived of your interest in having a hearing and making your case to the initial decision maker besides the indignity that they were suffering.

Given that the constitutional rights, our position cannot be separated from the from the intangible interests which those rights are intended to protect, it is not surprising that the common law has long recognized that the damages may be presumed from the violation of civil rights themselves.

There are no special remedial rules for civil rights cases which exempt them from this normal rule that damages should be presumed where intangible injuries are the natural and proximate result of a violation and since 1703 in the English voting rights case of Ashby v. White, the common law has recognized the principle that every injury to a right import to damage.

Mr. Justice Holmes relied on this principle in Nixon v. Herndon.

In that case, held that a valid claim for substantial damages were stated when the only harm alleged was the deprivation of Equal Protection which arose out of the denial of the right to vote on the basis of race.

I think our brief incorrectly describe that as a voting rights case but in fact it is an Equal Protection case.

And there are also many other American voting rights cases that recognized this principle.

Now, petitioner’s argument is not only contrary to these common law cases, it is also contrary to Congressional intent that courts apply, the most effective remedies that are available for the purpose of deterring violations of the constitutional rights.

It is clear from the Congressional debates and from many opinions of this Court that the primary purpose of Congress in enacting the Ku Klux Act of 1871 was to deter constitutional rights of the violations and in Section 1988 of Title 42 Congress gave the Court specific direction as to how they were to apply remedial principles under the Civil Rights Clause in order to achieve that deterrent purpose and as this Court stated in Sullivan v. Little Hunting Park, courts would use whichever federal and state rules on damages would better serve the policies of the Federal statutes.

Now, the technical trespass damage rules proposed by petitioners would obviously be less effective in deterring civil rights violations than the damage rules in the voting rights case and these intangible injury cases and Nixon v. Herndon.

A rule that required independent proof of injury for the award of damages for civil rights violations would give officials absolute immunity from damages where the nature of the constitutional right is such or the circumstances of a violation are such that affirmatively provable injury is unlikely to result from the violation.

Examples of the First Amendment cases or due process, and it is exactly such absolute immunity the petitioners are asking for in their reply brief on page 28 where they query, whether as a result of the Seventh Circuit’s decision educators would have to think about it, they research, their own discretionary acts in terms of the possibility that a Court might find them liable for damages for violating a person’s civil rights, but it was precisely to force officials to give consideration to avoiding constitutional rights that this Court rejected educator’s claims of absolute immunity in Wood v. Strickland.

There is nothing about that particular type of compensatory damages awarded for the deprivation of civil rights which is relevant to whether educators should be allowed to violate constitutional rights, free of any concern for their accountability under the Civil Rights Clause.

The rationale would require us that public officials not be given such a zone of immunity for their constitutional violations where the interest protected by the rights are of such an intangible, unquantifiable nature.

Unknown Speaker: What if the plaintiff in a civil suit is cross-examined on stand that you were asking about his damages, did it hurt your feelings or you ask about all the intangible things you can think up and he says no, I do not, but I am still entitled to some damages because I think you want to be deterred from violating that rights?

Mr. John S. Elson: Well, in that case such evidence certainly would go toward the reducing mitigation of the damages.

Unknown Speaker: Well, he would have up to zero or not?

Mr. John S. Elson: No, not to zero.

Unknown Speaker: So you do espouse openly and frankly you must give some money, some substantial award to deter?

Mr. John S. Elson: Well, I would point out that is not this case.

There is no evidence in this case, but yes I would say that the intent of Congress is that.

Unknown Speaker: Then your intent and your submission is?

Mr. John S. Elson: Is that the most effective remedies available in the common law are to be used and the presumption of damages from the violation itself is a remedy that is traditional that the common law and should be used in these cases.

Unknown Speaker: So you do not think damages are limited to what a jury or judge might think the intangible injuries to the plaintiff are --?

Mr. John S. Elson: No, certainly they are limited that, but with the instruction as the Seventh Circuit --

Unknown Speaker: As you said they are limited to that?

Mr. John S. Elson: With the instruction that the damages be not so small as the Seventh Circuit said to trivialize the right.

Now, a normal award --

Unknown Speaker: Yes, well, suppose, the other case whether the plaintiff frankly concedes as far as I know I have had no intangible injury.

I just think that I ought to have damages because you should not violate my rights anymore.

Mr. John S. Elson: Well, first I would pose that that is not unreal in type of situation because there is always injury as our position when these rights are violated, but for purposes of the hypothetical, I would analogize it in liable per se where there is inconclusive presumption of some injury which of course cannot be mitigated by such a showing.

Unknown Speaker: Yet in liable per se, a jury can, who is going to predict for $1?

Mr. John S. Elson: I believe that might be contrary to what the rule is for liable per se.

It may return it, but I think that --

Unknown Speaker: Do you think that is --

Mr. John S. Elson: It might be entitled to more damages.

Unknown Speaker: Do you think that could it not be upheld on appeal under the normal rules of violation?

Mr. John S. Elson: I think it might well not be and yes, under the normal rules where there is a conclusive presumption of some injury, now it is possible.

Justice Thurgood Marshall: But I thought he said $1?

Unknown Speaker: Dollars worth yes.

Mr. John S. Elson: Well, that would be normal for a substantial compensatory injury.

Unknown Speaker: Well, in the (Inaudible) case a long time of 15-20 years when the jury as I recalled return a verdict of $1 actual damages and $75,000 punitive damages?

Mr. John S. Elson: In that case, if there were substantial evidence mitigating conclusive presumption of damages, then it could be reduced.

Now, to $1, I am not sure because that would conflict in this case with the deterrent policies of Congress.

Unknown Speaker: Mr. Elson, in this very case, assuming no willful misconduct by the defendants and just the facts that you have, what do you regard as the dollar value of the damages to what your client is entitled?

Mr. John S. Elson: If I were a juror --

Unknown Speaker: Yes, what are we you going to ask the jury to give you in this case?

Mr. John S. Elson: I am not really positive, I think in the nature between $500 and $1,000 possibly I really have not given it.

Unknown Speaker: Well, they have requested $5,000?

Mr. John S. Elson: One of complaints, there was one who requested $3,000 that was at the time when punitives were also asked for.

Unknown Speaker: Well, they then did complaint of propose to be a class action complaint on the name of Brisco?

Mr. John S. Elson: Brisco, it was originally filed as a class action, no class was certified.

Unknown Speaker: No class was certified, but does that mean that Brisco was the only party before us?

Mr. John S. Elson: No, these are consolidated cases in the District Court with two students --

Unknown Speaker: So you have asked $5,000 for one and $3,000 for the other?

Mr. John S. Elson: Yes, at the time --

Unknown Speaker: But what is the difference?

Mr. John S. Elson: Well, they were represented by different attorneys I guess --that amounts to different amounts, but in terms there are differences in the fact situations of course, which may justify the juries coming up with different awards of damages.

There were First Amendment protected interest implicated in the Brisco case not implicated in the Piphus case.

Unknown Speaker: But those damages also assume some injury from a wrongful suspension?

Mr. John S. Elson: Yes, that would be, but the injury that to be presumed from the violation itself would not be the same for all plaintiffs across the board.

Unknown Speaker: And do you think the possibility of having a plaintiff securing attorneys’ fees would not be enough of a defendant?

Mr. John S. Elson: No, not necessarily.

There is no incentive for plaintiffs to file suits in order to pay off an attorney.

There is the removal of a disincentive and that they might have --

Justice Thurgood Marshall: Mr. Elson.

Mr. John S. Elson: Yes.

Justice Thurgood Marshall: The record would show that there are several cases of liable per se with $1 damages that had been upheld?

Mr. John S. Elson: But perhaps I was in error and --

Justice Thurgood Marshall: I know one in particular New York where one diamond merchant called other one a thief and he sued, and the jury came in and said that we give the defendant damage?

Mr. John S. Elson: Well, perhaps --

Justice Thurgood Marshall: And when the judge told them no they brought him $1?

Mr. John S. Elson: The point to that however is that the law presumes conclusively that some damages have occurred and in rebuttal certainly, in mitigation of those damages can be lowered to a minimal amount.

Unknown Speaker: You are not claiming that this deprivation availed in your complaint was a result of malice are you?

Mr. John S. Elson: No, oh, in the complaint it makes the claim for malice, but that was not proved that that is not in issue.

Unknown Speaker: Right the District Court found no malice.

Mr. John S. Elson: That is correct.

Chief Justice Warren E. Burger: Thank you gentleman.

The case is submitted.