WILSON v. GARCIA
Legal provision: Reconstruction Civil Rights Acts (42 USC 1983)
ORAL ARGUMENT OF BRUCE HALL, ESQ., ON BEHALF OF THE PETITIONERS
Chief Justice Warren E. Burger: We will hear arguments next in Wilson and Vigil against Garcia.
Mr. Hall, I think you may proceed whenever you are ready.
Bruce Hall: Mr. Chief Justice, and may it please the Court, as with the case just submitted, as Your Honor's questions indicate, this, too, is a case involving the application of a state statute of limitations to a 1983 civil rights action.
It arises out of an incident of alleged police brutality.
The petitioners, who were the defendants below, moved to dismiss this action which had been filed some two and one-half years after the incident occurred, and moved to dismiss it on the basis of a state statute of limitation which provided that all actions against government entities and public employees for their torts must be filed within two years.
It is clear that had the case been filed in state court in New Mexico, that that limitation provision would have been applied and this case dismissed on petitioners' motion.
The lower federal courts, both the District Court and the Circuit Court, have refused to follow the decision of the state's highest court and apply that two-year limitation.
The petitioners submit that this is wrong.
It is wrong under the language of Section 1988, which provides the rule of decision.
It is wrong under the characterization and application of 1988 by this Court.
It is wrong, quite simply, because the state judicial decision supplied the state rule of law, and unless inconsistent with the United States Constitution or the policies of deterrence and compensation underlying 1983, that state rule of decision is to be borrowed.
The cases of the Court on this point are quite clear.
There is no basis for distinguishing between a state court judicial decision and an express legislative determination which would by its terms apply to 1983 actions.
As a matter of settled jurisprudence, a construction by a state court of a state limitation is itself part of the statute, and does not represent simply a common law decision.
Given that fact, I think it is clear that 1988 intended to borrow and have govern, as it states, not only the statutes of limitations which the state courts would apply, but those statutes of limitations, general, which the state's highest court has said are expressly applicable.
Unidentified Justice: Mr. Hall, the Court of Appeals, because it took a global approach to this 1983 problem, simply didn't find it necessary to decide what statute New Mexico would apply here, and the District Court below apparently thought the New Mexico Tort Claims Act, the two-year statute, was inapplicable.
Is that right?
And you think the District Court was wrong in its view?
Bruce Hall: Justice, the Circuit Court, I agree, never really reached the question of what was state legislative intent as expressed in the state court opinion.
Now, the District Court opinion is quite interesting.
The District Judge acknowledges that had there been an express legislative provision saying that this two-year limitation is applicable to actions against governmental entities and public employees for their torts and constitutional torts, that that should have been followed under Section 1988.
The District Court essentially disagreed with the New Mexico Supreme Court's interpretation of New Mexico's own limitation.
Now, the District Judge also found freedom, as did the Circuit Court, in the principle that because we are applying a limitation to a 1983 action, and because characterizations of that action are involved, that that is finally a federal question, and that it is the freedom of this federal question, and that it is the freedom of this federal question which allows the federal courts to ignore the state rule decision.
Unidentified Justice: Well, you do concede, of course, I suppose, that there is a federal question involved here on characterization.
Bruce Hall: Most certainly.
Now, in this case, I said I disagreed, and I am going to take it back just a bit.
Where characterization is necessary, certainly that characterization is a federal question.
Where you have an express legislative determination, or where you have the application of the general limitation clearly defined by statelaw, I don't believe that characterization is necessary.
It is still a federal question.
It is simply irrelevant under that analysis.
I don't think characterization was ever intended by this Court to be anything other than a means of identifying state law, and given the structure and confusing structure of state statutes of limitations, that has been a very necessary characterization for the lower federal courts to use.
I think it is very appropriate for the lower courts to attempt in addressing that federal question, Justice, when it is available to the federal courts, to address it as a federal question, and address it in a way that will provide not only some guide to the lower District Courts, but to the entire federal judicial system in arriving at the most analogous state cause of action.
But this question still is a question, though it is a federal question, the question that is really asked is, what is state law?
And those circuits which have acknowledged that characterization is merely a means of identifying state law, have quite appropriately where there is an express state determination, an application of a particular limitation, said that this characterization is no longer necessary.
So, it is our position that characterization is what this Court has said it is, and that is only a tool.
This statute of limitations, the two-year New Mexico limitation, if there were no state court decision, would certainly be the most analogous cause of action.
It is certainly the most specific applicable to the facts in this case.
This is a very straightforward physical assault and battery action, though it of course raises grave constitutional actions as well as simply common law torts.
But certainly in terms of the underlying facts, there is nothing exotic about it which requires difficult analysis to find the most appropriate limitation.
The two-year limitation which the state has applies to state causes of actions against law enforcement officers for their assaults and batteries, but also, and we submit this is significant, it is a two-year limitation which applies to a state cause of action against law enforcement officers for bodily injury that they have caused and results in a deprivation of United States constitutional rights.
I believe this is a very unique provision of state law, when you examine the New Mexico tort claims scheme.
It contains this quite unusual recognition of the development of 1983 action certainly in the area of actions against law enforcement officers by stating quite specifically that under statelaw, there is a right to sue a law enforcement officer for depriving one of his constitutional rights.
So, when you analyze this case in terms not only of underlying facts, who did what to whom, but what are the elements of it, there is a very clear analogy, and the lower federal courts were simply wrong in not following that analogy.
This statute as well as the case before you does involve drawing a different limitation period for certain actions against public officials and private individuals.
Private assaults would be allowed three years to sue under New Mexico law.
This statute allows suits against government entities and public officials for these types of suits to be filed.
They must be filed within two years.
It is argued, of course, that that in end of itself is an inconsistency which requires that this statute be rejected.
We submit that that is not an inconsistency which undercuts, is hostile to 1983 goals of compensation and deterrence.
It is not enough to examine simply the difference in the period of time without, I submit, examining the entire statute in which this limitation is contained.
And when that is done, Justices, there is something very important found in the New Mexico Tort Claims Act.
That Act makes the state in effect a liability insurance company to pay actions, both the state law for torts which can be brought against the state, and also expressly provides that the State of New Mexico will pay all settlements and judgments which are brought against state public officials, not only for state torts but again for deprivation of United States constitutional rights.
This statutory scheme, which the respondents find so hostile to 1983, in fact makes 1983 recoveries more than, as they can be in some cases, only a paper judgment.
It guarantees the payment, the compensation which implements 1983 goals.
There is necessarily in any state's consideration of meshing its tort claim scheme to 1983 actions considerations which I believe are different than those in the private sector, and what finally must be decided is whether the balancing involved is a reasonable balancing.
I would observe that Congress as well in considering the availability of private actions versus suits against the government has drawn similar distinctions.
In maritime torts, United States boats are subject to suit within two years.
Maritime torts against private owners, three years.
So there is necessarily in any consideration of compensation such as the New Mexico legislation is addressed to a balancing of factors, and the question becomes whether that balancing has been carried on reasonably.
The final test really of inconsistency here is whether any state policy, any state rule, any state interest which is exhibited in that limitation has somehow precluded this respondent from getting to the federal court, and the answer to that is quite clear.
For two years the courthouse doors were open to the respondent without any possible hostility exhibited by state law in any respect.
The respondent's action here is precluded quite simply because he slept on his rights for a period of two years.
No reasonable argument, and it is not made in any of the briefs, is made that that period of time is too short.
It is the same period of time which Congress in waiving United States immunity allows for actions against federal law enforcement officers under the Tort Claim Act.
We submit that this provision, this limitation, which is general in its scope, does not discriminate against 1983 and civil rights actions.
It is not inconsistent.
And petitioners ask that the motions which they have filed nd pursued in both lower federal courts be granted here, and the case dismissed.
I will reserve my remaining time.
Chief Justice Warren E. Burger: Very well, Mr. Hall.
ORAL ARGUMENT OF STEVEN G. FARBER, ESQ., APPOINTED BY THIS COURT, ON BEHALF OF THE RESPONDENT
Steven G. Farber: Mr. Chief Justice, and may it please the Court, the New Mexico Tort Claims Act was enacted as a legislative response to the judicial abrogation of the doctrine of sovereign immunity in the State of New Mexico.
It is only a limited waiver of sovereign immunity, and there is no legislative intent within the entire confines of the New Mexico Tort Claims Act that evidences any desire on the part of the New Mexico Legislature to apply the New Mexico Tort Claims Act to 1983 actions which are filed for the deprivation of rights secured by the Constitution and federal law.
The particular provision of the New Mexico Tort Claims Act which the petitioners in this case seek to urge is the two-year limitation period found in Section 15 of the New Mexico Tort Claims Act, which refers exclusively to torts.
And as Chief Judge Bratton of the New Mexico District Court found in analyzing legislative intent, and as the New Mexico Supreme Court in the case of Wells versus County of Valencia found in examining legislative intent in the New Mexico Tort Claims Act, the New Mexico legislature distinguishes between a tort and a constitutional deprivation.
There is no, and I repeat, no expressed reference anywhere within the New Mexico Tort Claims Act to 1983 actions, to 1981 actions, to 1982 actions, to 1985 actions.
Unidentified Justice: Well, we certainly have to take the word of the Supreme Court of New Mexico as to questions of state law and state legislative intent.
The Supreme Court of New Mexico here held that the two-year statute was the applicable one, and the state court in 1983--
Steven G. Farber: In the DeVargas decision on certiorari, which is found in the Joint Appendix at Pages 15 and 16, there is no discussion of legislative intent.
What the court basically did was, it looked to this Court's decision in Timanio, and it said, we think the most analogous statute of limitations is that found in the New Mexico Tort Claims Act, Section 15, based upon a violation of Section 12, which applies solely to law enforcement officers.
The net effect of that decision is that a whole wide range of 1983 actions that simply are not covered, were never intended to be covered by the New Mexico Tort Claims Act, are now apparently under that reading of the DeVargas decision covered by a two-year limitation period.
There is no way that a zoning due process type case filed because of 1983 can come within the arguable confines of the New Mexico Tort Claims Act or be analogous, yet--
Unidentified Justice: --But unless you are talking about a residuary statute, you are going to have some sprawl or overlap any time you try to fit a 1983 action with all of its varieties into some specific state tort limitation.
Steven G. Farber: --Not based upon the Tenth Circuit's method of characterization, which I believe follows the case of Burnett versus Gratton, which this Court decided six months ago.
In Burnett versus Gratton, this Court set forth a three-stage process.
First, the Court said that in attempting to borrow a rule where federal law is deficient, you look to the laws of the United States to the extent that they are suitable to carry the civil rights statutes into effect.
Unidentified Justice: Your argument is essentially then that we should disregard the decision of the Supreme Court of New Mexico not because it improperly applied state law, but because characterization is a matter of federal law.
Steven G. Farber: No, I have three arguments why the DeVargas decision should not be followed.
One, it is not an analogous statute of limitations, as the DeVargas decision says that it is.
Two, it characterizes 1983 actions in a discriminatory fashion.
And three, and I have thought a great deal about the DeVargas decision on certiorari, it was a decision that quashed certiorari as being improvidently issued, and my understanding of the law is that when a decision quashing certiorari is issued, it is not precedent.
Unidentified Justice: Wasn't it... didn't the Supreme Court of New Mexico write an opinion in the process of--
Steven G. Farber: They did write an opinion, but it was called a decision of certiorari.
Unidentified Justice: --Don't the New Mexico appellate courts follow that as binding precedent?
Steven G. Farber: I think they have been incorrect in following that.
If the Court will look--
Unidentified Justice: Well, in any event, the New Mexico courts are treating it as a decision with precedential value.
Isn't that true?
Steven G. Farber: --Some... in Cosart they did, yes.
Unidentified Justice: And in Sayna School Bus?
Steven G. Farber: Yes, but I think that they were not the most analogous state statute of limitations to be applied to 1983 actions.
It is somewhat curious how the DeVargas decision on certiorari came to be published, by the way.
On Page 22 of the Joint Appendix, there is an affidavit from Rose Marie Aldereti, the clerk of the New Mexico Supreme Court, in which she says that the DeVargas decision on certiorari is not to be published, it is not a recorded opinion, and it won't be cited as precedent.
After we filed a motion in the District Court attaching that affidavit to a reply to new authority, because the DeVargas decision was decided after we filed our lawsuit, then the decision became published.
I don't know how that happened, but that is the sequential events leading up to the publishing of the DeVargas decision.
If one reads the DeVargas decision, there is no attempt to analogize.
A 1983 action--
Unidentified Justice: That may be true, but if a 1983 action were brought in the state court, there isn't much question about what the applicable statute would be, is there?
Steven G. Farber: --I think if a 1983 action were brought in state court, the statute of limitations would be what the federal courts have said that it is, which is that you have to--
Unidentified Justice: Why wouldn't the lower courts of New Mexico have to follow DeVargas?
Steven G. Farber: --Because of the supremacy clause.
This Court has said--
Unidentified Justice: Well, I know, but that is just... that is true only if you win this lawsuit.
Steven G. Farber: --Well, I think that it is not just true based upon this lawsuit.
I think it is true based upon the line of cases which this Court has developed in attempting to analogize and decide what that appropriate or analogous statute of limitations is.
Unidentified Justice: What if we decide in the case that preceded this one that the federal courts must apply the statute that the state courts would apply to a 1983 suit?
Steven G. Farber: I think that that would be a departure from the decisions of this case.
Unidentified Justice: Well, I know, but what if we do decide--
Steven G. Farber: The decisions of this Court.
Unidentified Justice: --What if we decide just that in the case that preceded this?
Then the Tenth Circuit is wrong and you are wrong.
Steven G. Farber: No, I think that based upon the characterization of a federal civil rights action as being an injury to personal rights, that the most analogous state statute of limitations in New Mexico is the New Mexico personal injury statute, which allows a lawsuit to be filed within three years from the date of the injury.
Unidentified Justice: I know, but if we decide what I suggested in the case before, a lot of the inquiry is pretermitted, because if the state court or... a state legislature or a state court expressly finds that this is the statute that applies to 1983 actions, then isn't the only question left inconsistency?
Steven G. Farber: --Discrimination, and we have that argument in this case also.
Inconsistency with federal policy.
This Court has said on a number of occasions that it is not going to follow state law automatically.
To be sure, state law is--
Unidentified Justice: So you could say the only question that would be left would be inconsistency.
Isn't that right?
Steven G. Farber: --Whether it is unreasonable and not consistent with federal civil rights policy, and whether it discriminates against the federal cause of action, and those arguments are made in our case, and are shown by the facts of the case.
Based upon the underlying approach analysis which has been urged by the petitioners in this case, there could be a two-year statute of limitations applied to certain types of civil rights claims brought against law enforcement officers, but interestingly enough, if a law enforcement officer was discriminated against, or if a law enforcement officer had his First Amendment rights violated, that law enforcement officer would have either three or four years to bring a lawsuit, but if someone has their rights abused by a governmental authority through law enforcement agencies, that person only has two years to bring a lawsuit.
There has been, and I think this is the reason that the Tenth Circuit took the approach that it did, a colossal burden on the federal courts by litigation based upon the underlying conduct approach, and we have cited the authorities and the collections of cases in Footnotes 9, 11, and 13 of our brief, where there has just been this wide range of litigation.
This case has been going on, on January 28th it will be three years, solely on the basis of what is the proper statute of limitations to be applied to the remedial 1983 action that was filed in this case seeking compensation for the severe personal injuries that my client received and deterrence, so that this type of governmental abuse will not occur again.
And I think that it is important at this moment to point out just very briefly and succinctly that the complaint alleges that Gary Garcia was viciously and brutally beaten by Petitioner Wilson, sprayed with teargas, that Richard Wilson was hired by Petitioner Vigil, who was the chief of the New Mexico State Police, even though Petitioner Vigil had been advised by two high-ranking police officers of the New Mexico State Police not to hire this man because the man had been fired for stealing from a prior employer, the man had arrest warrants outstanding against him, and the man had several convictions, and four days prior to the beating in this case, Petitioner Wilson brutally assaulted two women in Rio Riva County, New Mexico, and that fact was--
Unidentified Justice: Mr. Farber, all this goes to the merits, and if this is all that clear, I wonder why you waited two years to sue.
Steven G. Farber: --Part of it was that... it deals within the practicalities of the litigation.
You have an uneducated man in Ria Riva County, New Mexico, who was subpoenaed to appear at a trial where all the facts came out, and then learned about his cause of action against Petitioner Vigil.
Unidentified Justice: Isn't your basic argument that all this unfairness, and time, and figuring out what the right statute of limitations is, that is really a criticism of Congress for not enacting a uniform statute of limitations.
It is not--
Steven G. Farber: I think this Court has criticized Congress each and every time it has written a statute of limitations case, because the answer would be resolved simply if Congress said, the statute of limitations is X years.
Unidentified Justice: --They haven't, and until they do we are going to have a million of these cases.
Steven G. Farber: And that is why the approach of the Tenth Circuit makes sense, because it creates a theme which this Court can follow, that is consistent with the concept of federalism, it is consistent with the remedial nature of 1983 actions and the dual policies of compensation and deterrence, and it is consistent with the settled expectations and repose policies of the states, because now people will know what they have to do.
Unidentified Justice: If Congress had done what it did in 1946 in the Federal Tort Claims Act, you would have a two-year statute, wouldn't you?
Steven G. Farber: Yes.
Unidentified Justice: And would you be quarreling with Congress?
Steven G. Farber: If Congress had enacted a statute and made it applicable to 1983, no, that would end the inquiry, but we don't have--
Unidentified Justice: It would end your case, too.
Steven G. Farber: --It would end the case, but it hasn't.
And the two-year statute, it does not apply to 1983 actions in New Mexico.
As we have shown in the survey which is attached as a part of the appendix, Part B, the approach of the Tenth Circuit does not lead to nationwide uniformity, which this Court has said is not a goal of the Federal Civil Rights Acts in Footnote 11 in the Robertson versus Reagan case.
What it does is, it creates a... and we show that there is a range of 50 statutes of limitations for the states and the territories that would apply to civil rights actions based upon the characterization of the injury as being an injury to personal rights.
What you do under Burnett versus Gratton is, you use the federal laws to the extent that they are suitable to understand what it is when one's rights are violated, and we have set forth the legislative history at Pages 17 to 23, which I believe supports the characterization of an injury to civil rights as being an injury to personal rights.
You then look to state law.
No one in this case has suggested that you don't look to state law to find the statute of limitations.
But the second step of the Burnett versus Gratton test is to look to state law, and for each state it is different, although some of the years are the same.
It ranges from one year in California to six years in North Dakota.
Unless we have an approach that gives that degree of limited uniformity, rather than 50 statutes of limitations, this Court may well be burdened with 150 or 200, and I think the example of the case of Polite from the Third Circuit is strikingly clear.
In that case there were allegations that there was excessive force used, a false arrest, an illegal search and seizure of a car, and coercion of a guilty plea, and based upon the cause of action, the federal cause of action that was filed, the Third Circuit analogized those claims to state law and found in the same case that a one-year statute of limitations ought to apply to the false arrest claim.
The court found that a two-year statute of limitations ought to apply to the coercion of guilty claim and the assault and battery claim, analogizing these to common law torts, and that a six-year statute of limitations ought to apply to the illegal search claim based upon the car... based upon the Pennsylvania cause of action for recovery of goods.
I suggest that that is not a concrete, proper resolution to the issue of statutes of limitations.
It has caused intolerable burdens on the federal courts, and the cases which we have collected, once again, in Section 9... Footnotes 9, 11, and 13, I think, show that.
The characterization method which the Tenth Circuit utilized and which we think is appropriate and proper is something which this Court has historically engaged in as far back as 1905, and we have summarized that in Footnote 5 of the red respondent's brief.
In the case of McLain versus Rankin, which was a national bank assessment action, what the Court did was, the Court looked to the law and it said, we think that this action is a liability based upon a statute against the claim that it was a contract action.
The court then looked to the law of the particular state, the forum state, for an analogous statute of limitations, and finding none, the Court then applied the residuary statute of limitations.
This had been done consistently where the Court as a part of the characterization process determines for itself the essential nature of the federal right which has been conferred by Congress, and then applies the most analogous and appropriate statute of limitations under state law.
In this case, if one characterizes the action as an action for injury to personal rights, and then looks to state law, the conclusion is that it is the personal injury statute, the three-year statute of limitations, because the two-year limitation provision of the New Mexico Tort Claims Act does not apply.
It refers exclusively to torts, and consistently throughout the New Mexico Tort Claims Act, as was noted by Judge Bratton, and as was noted by the Supreme Court of New Mexico in Wells versus County of Valencia, a decision totally inconsistent with DeVargas, the legislature distinguishes between torts and 1983 actions, and if in fact the legislature had intended the Tort Claims Act to apply to 1983 actions, it would have said so.
It did not say so.
It does not apply.
The Tort Claims Act is a very limited waiver of the state's sovereign immunity.
It has not, as I have said, waived immunity for the wide range of actions--
Unidentified Justice: Mr. Farber, may I interrupt you?
Steven G. Farber: --Yes.
Unidentified Justice: Is it not correct that under your approach and, I think, the Tenth Circuit's approach, even if the New Mexico legislature had said in so many words, we intend this to apply to 1983 actions, you would still make the same argument?
Steven G. Farber: Yes, but there would be a difference, because I think in that circumstance, the third part of the Burnett versus Gratton test comes into play.
You have the federal characterization as an injury to personal rights.
You look to state law.
You find the state personal injury statute.
And lo and behold, there is this other statute that says it specifically applies to 1983 actions.
I think the Court then has to look and see whether the time periods are the same, because if they are giving less time for the 1983 action than for the other action, you have a discriminatory statute of limitations.
If you have at the same time, if you have a statute of limitations that is a part of let's just say a tort claims act which allows compensatory damages without a limit, unlike the New Mexico Tort Claims Act, which allows punitive damages, unlike the New Mexico Tort Claims Act, which doesn't have a restrictive notice provision, unlike the New Mexico Tort Claims Act, which doesn't discriminate against a federal cause of action, unlike the New Mexico Tort Claims Act, and which allows in this case a cause of action against a police officer for action under color of law but outside the course and scope of his duties, unlike the New Mexico Tort Claims Act, then I think it is appropriate to use that statute of limitations, because it is consistent with this nation's federal civil rights policy.
Unidentified Justice: Would you say that even if it were a shorter statute?
Steven G. Farber: No, I would not, because I think it discriminates against--
Unidentified Justice: Well, then why do you ever have to look past... then I don't understand how you ever reach the third question, because if you limit the third inquiry to statutes that are even longer, it seems to me you--
Steven G. Farber: --Because you have to make that judgment.
You have to defer to the state to see what--
Unidentified Justice: --If you say as a matter of federal law that all 1983 actions are most analogous to a personal injury tort case, and you always look at the state statute for a personal injury lawsuit, why isn't that the end of the ball game?
Steven G. Farber: --Because the third step... because states do enact 1983 actions, and they have the right to enact a 1983 action as long as it doesn't discriminate against what a private individual would have to--
Unidentified Justice: In other words, they could enact a longer statute.
That is what you are really saying.
Steven G. Farber: --I am sorry, what?
Unidentified Justice: In other words, they could permit a longer period.
Steven G. Farber: They could permit a longer period or the same period.
They couldn't go under what the personal injury statute would be, because you would have a situation like we have in New Mexico, where someone who is the victim of a simple assault has three years to bring a lawsuit, but someone who has been brutally abused by a police officer only has two years to bring a lawsuit.
That is certainly not a result, I think, that is consistent with the decisions of this Court and with the federal interests which are involved.
Unidentified Justice: Of course, it is pretty unlikely, isn't it, that a state would adopt a longer statute for suits against its officers than--
Steven G. Farber: Yes, I think that is unlikely.
The action filed in this case is a federal action filed in federal court seeking a federal remedy based upon a uniquely federal interest, which is the protection of the rights of citizens through compensation and deterrence, and the judgment of the Tenth Circuit should be affirmed.
If for any reason this Court should determine that the limitations provision of the New Mexico Tort Claims Act should apply to the claim of Gary Garcia, then we would ask that this Court make any such ruling prospective, because prior to the filing of the complaint in this case there had never been any kind of judicial decision which had ever said 1983 actions were governed by the New Mexico Tort Claims Act.
The New Mexico Tort Claims Act does not refer to 1983 actions.
The decisions of the federal courts in the State of New Mexico were that the action was either a liability based upon a statute or an action for personal injury, either the three-year or the four-year statute of limitations.
In the Tenth Circuit, it was the policy under Shaw versus Haliburton, which we have pointed out in our brief, that if there was an arguable difference, that the longer statute as a matter of policy should be applied.
For all of these reasons, it would be unfair to bar the claim of the plaintiff in this case.
For all the reasons that I have mentioned, we would respectfully request this Court to affirm the judgment of the United States Court of Appeals for the Tenth Circuit.
Chief Justice Warren E. Burger: Very well.
Do you have anything further, Mr. Hall?
ORAL ARGUMENT OF BRUCE HALL, ESQ., ON BEHALF OF THE PETITIONERS -- REBUTTAL
Bruce Hall: Mr. Chief Justice, and may it please the Court, on the prospectivity issue alone, there was no reasonable reliance by the respondent on any particular view of this rule which was significantly changed or altered by the Tenth Circuit, as the granting of the interlocutory appeal itself indicates.
There were indeed different views on whether the two-year limitation should apply, and in fact the Tenth Circuit's decision is a reversal of its prior approach to these cases, which would apply the two-year limitation.
There is the statement made that again state law has been incorrectly interpreted by state courts.
The statement is made here several times that there is no reference to 1983 actions as such in the limitation or the statutory scheme.
What it says, and it says specifically, is that there is a cause of action in state law against law enforcement officers for deprivation of any rights, privileges, or immunities secured by the United States Constitution.
Any tort lawyer can read that quite clearly as a reference to 1983 actions.
When you finally come down to it, the question of was the state's decision of its own law wrong, that question really can't even be asked in this context.
The point is, it is the state's decision, and in the only matter in which this is relevant it is state law.
Unidentified Justice: Mr. Hall, your opponent did to a certain extent argue that, but I don't understand the Tenth Circuit to have so reasoned.
They don't say that the New Mexico Supreme Court misconstrued state law.
Bruce Hall: No, Justice, they said it's irrelevant.
Unidentified Justice: That's right.
Bruce Hall: That's what they said, in a footnote.
I think that is the significance of this case.
It is not a happy result for federalism when federal courts directed by a federal rule of decision statute such as 1988 are told to borrow state law, and that it should govern.
That state law, as observed and applied in the state courts, is simply relegated to a footnote and regarded as irrelevant.
That is not what Section 1988 intended.
It is not only an unhappy result for federalism, it is an unhappy result for plain principles of judicial comity.
We are left with an irreconcilable difference between state and federal courts in applying their concurrent jurisdiction over 1983 actions which simply cannot and should not be permitted to continue.
Chief Justice Warren E. Burger: Thank you, gentlemen.
The case is submitted.