Transcript

IN THE SUPREME COURT OF THE UNITED STATES

TYRONE VICTOR HARDIN, Petitioner v. DENNIS STRAUB

No. 87-7023

March 22, 1989

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:54 o'clock a.m.

APPEARANCES:

DOUGLAS RYAN MULLKOFF, ESQ., Ann Arbor, Michigan; on behalf of the Petitioner.

LOUIS J. CARUSO, ESQ., Solicitor General of Michigan, Lansing, Michigan; on behalf of the Respondent.

PROCEEDINGS

10:54 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument next in No. 87-7023, Tyrone Hardin v. Dennis Straub.

Mr. Mullkoff, you may proceed whenever you're ready.

ORAL ARGUMENT OF DOUGLAS RYAN MULLKOFF ON BEHALF OF THE PETITIONER

MR. MULLKOFF: Mr. Chief Justice, and may it please the Court.

The question in this case is whether a federal court hearing a state prisoner's Section 1983 claim must apply that state's prisoner tolling statute. We claim that the tolling statute must apply in light of this Court's previous decisions and in light of the plain language of the Civil Rights Act.

The record below in this case is scant. In 1986, Petitioner Hardin filed a Section 1983 action claiming a due process violation by a Michigan prison official who ignored Michigan Department of Correction rules which required a hearing be held before he could be confined in a solitary segregation unit. Almost six months were spent in segregation without any hearing, much of the time in his cell 24 hours a day. This segregation ended in 1981.

The federal lawsuit was filed in 1986. The district court below dismissed this case sua sponte prior to service on the defendant finding that it was barred by Michigan's three-year general statute of limitations. Petitioner argued on appeal to the Sixth Circuit that the statute of limitations was tolled under Michigan statute of limitations law since there is a particular Michigan tolling provision which allows an inmate whose cause of action accrues during imprisonment until one year after the imprisonment ends to file any civil suit which has accrued during that imprisonment.

The Sixth Circuit rejected this argument and said that the Michigan statute of limitation tolling rule for prisoners does not apply to Section 1983 claims. We believe that the Sixth Circuit was wrong and should be reversed.

The particular tolling rule in question was rewritten by the Michigan legislature in 1972. It was amended from a five-year tolling period after incarceration ended to a one-year period. It was reviewed again in 1981 by the Michigan legislature and upheld.

This Court has made unambiguous pronouncements on the use of state statute of limitations tolling law. In Tomanio, a 1980 -- 1980 decision of this Court, you said that federal courts hearing actions under Section 1983 must borrow the relevant state statute of limitation and tolling rules unless they're inconsistent with federal law. In Chardon v. Fumero Soto in 1983, this Court said that application of interrelated tolling rules, when state statute of limitations law is borrowed, are appropriate and must -- must be used in that manner unless they're inconsistent.

This Court has in total since 1980 reviewed the application of specific state limitation statutes to civil rights cases six times. That body of law has established that state statute of limitations and their interrelated tolling rules must be applied unless the state statute interferes with or unduly burdens assertion of the civil rights claim.

The Michigan tolling rule in question here does not interfere with assertion of Section 1983 claims. In fact, it's our position that it accommodates Section 1983 claims. Borrowing a state's tolling rules is -- is the rule; not borrowing would be an exception. And under the procedural statute which applies to Section 1983, that being 1988, it must be borrowed unless inconsistent.

The central issue raised by the Respondent is that Michigan's tolling rule is inconsistent with Section 1983 because it does not foster deterrence of official misconduct.

I'd first like to point out that this Court in Felder v. Casey last year said that compensation is the primary goal of Section 1983, the central objective. Compensation is well-served by a rule which extends a victim's time to file a civil rights claim, like the rule in this case. To date, this Court has not rejected any state law which made access to the courts easier for persons who claim to be victims of civil rights violations.

The second objective, deterrence, is not interfered with or impeded by a statute of limitations tolling rule. Our position is that the greater period of time a victim has to file, the greater the deterrence--the deterrent effect will be. If we believe that giving prisoners access to court will actually deter Section 1983 claims, then it only follows that giving greater access to prisoners will foster greater deterrence.

QUESTION: You're not really talking about deterring 1983 claims. You're talking about --

MR. MULLKOFF: I'm sorry.

QUESTION: -- deterring the conduct on which 1983 claims are based, aren't you?

MR. MULLKOFF: That's correct, Your Honor.

We disagree with the idea that you can deter official misconduct, that -- that it is not possible to deter official misconduct with a tolling provision or a lengthy period of time. Respondents argue that promptness and a promptly filed claim fosters deterrence and that the opposite is not true. We -- we don't believe that that necessarily follows.

In criminal law, for instance, tolling provisions are used in statute of limitations systems using criminal codes. It wouldn't be argued that we should abandon statute of limitations tolling provisions in criminal law because it wouldn't foster deterrence. I think the opposite is more persuasive, that the greater the period of time for bringing charges, the greater the deterrent effect would be.

Presumably the greatest deterrence in a civil rights case occurs when a victim prevails in a court of law. We think that there are other reasons based on this Court's past decisions which should support our view.

The Congress has made clear in Section 1988 that it was willing to rely on a state's judgment regarding statute of limitations law. The concept of federalism would be supported by applying Michigan's tolling law.

The State of Michigan has considered and reconsidered this law written and rewritten the law, and the Michigan Court of Appeals has reviewed it. In 1981 there was a constitutional challenge to this particular tolling law, and the Michigan Court of Appeals found it to be supported by valid governmental interests. Respecting the legislature's wishes here would promote federalism.

It isn't disputed that the Michigan courts would apply this tolling law to a civil rights claim were it brought in their courts.

QUESTION: That's -- that's settled by decision.

MR. MULLKOFF: That -- that appears to be settled by the case of Hawkins v. Justin that the Michigan Court of Appeals decided, and it was also acknowledge in Higley v. Michigan Department of Corrections, the Sixth Circuit case that Respondents rely on.

The final --

QUESTION: When -- Mr. Mullkoff, when the legislature revisited the tolling statute, was there any discussion or anything in the reports, if there are reports in Michigan, that dealt with -- there's a seeming incongruity where the person is in solitary confinement and claims to be wrongfully there, and he presumably isn't there by the time he brings his action. Did the legislature discuss that at all?

MR. MULLKOFF: The legislative committee report in the 19 -- to the 1972 amendment to Michigan's tolling statute indicated a recognition that prisoners in modern times have increased access to courts. They acknowledge the fact that lawsuits can be filed, counsel can be obtained, and that although prisoners may not be permitted to actually appear in court, they can file their actions. The committee said, nonetheless, we still think that restrictions obviously exist and that it would be prudent to leave a one-year window. That was the legislature's comment in that amendment.

A final point I think that should be made is that statute of limitations provisions and their tolling exceptions have to be read and viewed in context. They're inseparable. This Court has said in the past that one cannot understand a statute of limitations system without understanding its -- its exceptions and those circumstances that suspend it from running against a particular cause of action. It is problematic to separate a tolling provision from a parent statute of limitations, and again I think deference should be paid to the state and what the state's wishes were.

We think that application of Michigan's tolling law seems mandated by this Court's past decisions in Tomanio and in Chardon, and we urge you on this basis to reverse.

Thank you.

QUESTION: Thank you, Mr. Mullkoff.

Mr. Caruso?

ORAL ARGUMENT OF LOUIS J. CARUSO ON BEHALF OF THE RESPONDENT

MR. CARUSO: Mr. Chief Justice, and may it please the Court.

Although the statutes of limitations and their tolling rules are part of the judicial process, the state legislatures do not design their statutes of limitations and tolling provisions with the national interest in mind. When statutes of limitations are borrowed from the state pursuant to 1988, as here, the courts must determine whether they are inconsistent with the national interest.

Although the federal courts in Michigan have not looked with disfavor upon the policy of repose of the state, the Sixth Circuit -- they have -- they have rejected, however, the open-ended tolling statute with the Sixth Circuit approval as being inconsistent with the underlying remedial policies and purposes of the Civil Rights Act which are identified as both deterrence and compensation.

The Sixth Circuit decided the case based on Higley, which is an earlier decision by the Sixth Circuit, in which they placed a strong emphasis on the court's perceived substantive policy of early enforcement of the Civil Rights Act. The court reasoned that because deterrence of the civil rights violation is the Act's objective -- one of the Act's objectives, such claims should not be allowed to long -- languish long after the best opportunity for resolution and deterrence is past. And I also suggest to the Court that compensation in and of itself has a deterrent effect in this area.

The court considered this perception of early resolution not in light of fixed tolling statutes such as six, eight or ten years, but rather under a tolling statute allowing varying claim viability periods that are dependent upon -- upon claimant prisoner's duration of sentence, which in some cases could extend for decades, and found it unacceptable in view of its perceived need for prompt enforcement of the Civil Rights Act.

Now, the Petitioner asserts the longer the statute of limitations, the greater the deterrent value. while it may be true that permitting litigation of stale claims has a more -- has more deterrent value than prohibiting them, it cannot be realistically denied nor -- and it's equally true that prompt litigation increases the likelihood of success and deterrence.

Petitioner analyzes deterrence and isolation --

QUESTION: Mr. Caruso, may I ask you a question?

MR. CARUSO: Yes.

QUESTION: Do you think this same rationale would support a federal court's holding if a state statute of limitations ran with, say, a 15-year statute? It didn't have tolling, but just had a 15-year statute. Do you think the federal court would be justified in saying we just think that's much too long? If you're going to have effective deterrence, you got to sue within three years.

MR. CARUSO: The court would have to make that judgment. They would have to balance the need for early decision against the -- the period of 15 years. In other words, they'd have to determine whether the interest in protecting the claim for a 15-year period is outweighed by the federal policy of repose. And if it's 15 years, it's -- it's a value judgment --

QUESTION: So, you'd say the court could under your theory -- could in effect shorten -- if the state had said 15 years, say, well, for federal purposes that's too long. We want to shorten.

MR. CARUSO: That could be determined by the court as being too long, and if that's the case, they would -- pursuant to 1988 and the Tomanio analysis, it should not be applied.

QUESTION: One thinks of the statute of limitations analysis though as, you know, a long statute benefits the plaintiff and a short statute benefits the defendant generally. And here -- here the Michigan--the State of Michigan, which is the defendant in these actions, or Michigan officials who are defendants -- the legislature has it within its own power to -- to change that.

MR. CARUSO: It had within its own power to change that. I agree with -- I agree, Mr. Chief Justice. But they chose not to do that.

However, when we -- when we borrow such a statute, I think we have to consider it in light of the federal interests as required by 1988 and Tomanio. And I suggest to the Court that the federal interest of repose and finality would indicate -- could conclude that the statute does not comport with the federal interest on -- in repose simply because the Michigan tolling statute could permit claims -- a viability period to exist for a period, as I say, of decades, 40 years or 50 years in some cases.

QUESTION: But, Mr. Caruso, what you describe as a federal interest in repose --

MR. CARUSO: Yes.

QUESTION: -- as the Chief Justice indicated, also could be described as a state interest in repose. And the ironic thing about your argument is that Congress hasn't found a sufficient interest in repose even to draft any statute of limitations.

MR. CARUSO: Yes, (inaudible).

QUESTION: It's kind of hard to find an overwhelming federal interest when they keep letting us decide all these questions that they could solve for all of us in 10 minutes by just adopting a federal statute of limitations.

MR. CARUSO: That's, indeed, unfortunate.

QUESTION: And their failure to do so is a little hard to understand.

MR. CARUSO: But as I suggest that while the stale claim have -- has -- the question is not whether a stale claim has any deterrent effect or whether a deterrent effect of the state claim outweighs the federal interest in repose, as I suggest. In making this judgment under the Michigan statute, it becomes very difficult, and because of the varying claim of viability periods. And the court, the Sixth -- the Eighth Circuit in the South -- in South -- in dealing with the South Dakota tolling statute concluded that five years plus three-year statute of limitations are not inconsistent with the federal policy.

In that particular state, that Eighth Circuit decided that eight years is all right. But in deciding that the eight-year period is acceptable under the federal considerations, it did contrast the eight-year statute they have with the open-ended tolling statute similar to that of Michigan, and conclude -- concluded that that type of statute is inconsistent with the federal interest.

Now, if the claim viability period is extended, the interest in protecting claims lessens and the interest in repose increases. The reference made by Petitioner to Hawkins v. Justin is a Michigan Court of Appeals decision wherein they dealt with the constitutionality of the tolling statute on an equal protection basis, and the court held that to be constitutional under a rational basis test.

But that isn't the issue. That's where the analysis begins. If it is constitutional, a reference to a claim such as involved in that case was a libel claim under a one-year statute, that -- that is fine for -- for the -- for the state's interest. But under the 1988 provision and under -- under the decision of Tomanio, that has to be considered in light of the federal interests.

And as I state, that the Court of Appeals decided that the underlying policies of deterrent and compensation are not being served by allowing these claims to languish for such a long period of time that the best opportunity for deterrence is past.

Now, a reference is also made to the criminal law context. Petitioner analogizes to criminal law context where -- where the more serious offenses have longer statutes of limitation and murder has none. But a similar balance must be done in that case too. The balancing of the interest of repose and finality, as well as the interest in preventing possible prejudice to defendants to defense, must be weighed against society's interesting -- interest in punishing and rehabilitating offenders and deterring other crimes.

If these latter interests are sufficiently strong, it could justify longer periods than in the civil context, but even in the criminal context in Michigan, they are set periods of time and not the open-ended provisions as we see and observe in the Michigan tolling statute.

And I think that this comports with what the Court had said in Wilson v. Garcia. In Wilson v. Garcia, the Court made quite a significant statement with reference to the policy, the federal policy of repose. It said a federal cause of action brought at any distance of time would be utterly repugnant to the genius of our laws, and they quoted from an 1835 case. Just determinations of fact cannot be made when, because of the passage of time, the memories of witnesses have fade -- faded or evidence is lost. In compelling circumstances, even wrongdoers are entitled to assume their sins may be forgiven.

QUESTION: Of course, the fading witnesses --

MR. CARUSO: (Inaudible) take an example, for --

QUESTION: Of course, witnesses' memories applies to the other side, as well as to the state.

MR. CARUSO: To both sides, that's right. And I say that adds to the burden of the court in trying these cases and -- because the court duty is to search for the truth, and it makes it very difficult. And that's one of the bases for applying a sound policy of repose.

I think that if you would consider, for example -- in one of the cases an example was given where a prison guard make -- would make 100 or 200 searches in a period of six months to a year. And one of those searches or two of those searches, any one, may give rise to a 1983 claim. And the person in -- under the Michigan tolling provision could wait 20 or 30 years to bring that action. And I think that that would unduly burden the court in its truth-seeking process, as well as burden the defendant in responding to the charges that are made.

QUESTION: Mr. Caruso, surely there are some policies in both directions. I mean, I could make an argument precisely the opposite of what you say. I could make an argument to say that it -- it really -- it expects a lot of a prisoner to suggest that he should bring a suit against his prison guard, for example, when he is still incarcerated and subject to the authority of that guard. I -- I think it's just the opposite of what you're saying could -- could -- could be the rule; that is, you have to allow him some time after he gets of prison to bring this claim because otherwise you're not sure the claims would be brought at all. Don't you think there's some sense in that?

MR. CARUSO: Well, the claim may not be brought -- the claim may not be brought at all. That's very possible, but that's his choice not to bring it all.

QUESTION: Well, do you want to have to sue somebody who's -- who's the -- the guard on your corridor? You want to haul him into court while you're still in prison?

MR. CARUSO: Well, I think --

QUESTION: Wouldn't you rather have the option to wait until you get out and then sue him?

MR. CARUSO: I don't think it's essential. I don't think it's necessary to do that. And I think to give him the option to wait until he gets out of prison, if he has a 20-year prison sentence, Justice Scalia, would not comport or bode well with the federal policy in repose.

QUESTION: Well, it's at least an argument, isn't it? I --

MR. CARUSO: Pardon? Pardon?

QUESTION: Mr. Caruso --

MR. CARUSO: Yes.

QUESTION: -- what case in this Court do you rely upon?

MR. CARUSO: Pardon?

QUESTION: What case -- what decision of this Court do you rely upon?

MR. CARUSO: I rely on the decision in Tomanio which calls --

QUESTION: What?

MR. CARUSO: -- in the U.S. -- or the Board of Regents of NYU v. Tomanio which requires a -- an analysis be made of the borrowed statute of limitation with reference to the federal laws and federal policies. And if they're inconsistent, they should not be borrowed. They should not be applied.

QUESTION: Do you think --

MR. CARUSO: And that's what we're suggesting here.

QUESTION: Do you think the Okura case applies at all?

MR. CARUSO: It applies to all cases in which the statutes of limitations of the states are borrowed, yes, all federal cases.

QUESTION: Doesn't that apply to this case?

MR. CARUSO: It applies to this case. I suggest --

QUESTION: And it puts you out of court, doesn't it?

MR. CARUSO: No, it does not put us out of court because I suggest that the analysis that must be made, which many of the courts did not do in the cases cited by Petitioner, and that is make the analysis to determine whether the tolling statute is inconsistent with the -- the -- the federal laws and the policies of the federal government. And one of those policies is a policy of repose. And the Court has said many times they cannot allow claims to languish for such long periods of time. That would be an undue burden on the court, as well as well as in the defense, in seeking --

QUESTION: But you don't have any trouble with the Okura case saying that you're bound to follow the state statutes.

MR. CARUSO: Well --

QUESTION: You don't have any trouble with that at all, do you?

MR. CARUSO: I'm not having trouble with that.

QUESTION: You just ignore it.

MR. CARUSO: I'm not having trouble with that, Justice Marshall, but what I am suggesting is that under 1988 in a borrowing situation such as we have here, the borrowed statute has to be viewed in light of the federal law and federal policies. And if it doesn't comport with those policies, then it should not be employed even though it is a state law. And I --

QUESTION: The Okura case was after 1988. It was 1989.

MR. CARUSO: Pardon?

QUESTION: The Okura case didn't have any trouble with 1988 because it was decided in 1989.

MR. CARUSO: But 1988 is the section of the Civil Rights Act I have reference to which requires the deterrence to be made.

Now, as I say, in some of these cases -- it might be interesting to point out too in connection with the statute of limitations, and -- there are 26 states that have no tolling provision for prisoners, and there are 10 states that have a limited, fixed tolling provision. There are 14 states that have tolling provisions open-ended like that of Michigan.

What I suggest here is that the court looked at the problem realistically and acted reasonably by limiting the prisoner Section 1983 claim to Michigan's three-year residual personal injury statute and ask that that decision be affirmed.

I've not made any reference in my argument to access to the court. Access to the courts was never raised in the court below. We were not in the proceedings at any point in the -- in the courts below. But it was not raised. However, it did appear in Petitioner's brief that there is a great disability here. And I suggest that that disability really does not exist because since the decision in Bounds v. Smith.

And also I call the Court's attention to considering the Civil Rights Attorney Aware Fee Act of 1976 that became codified into 42 U.S.C. 1988 which this Court said in Hensley v. Eckart insures effective access to the -- to the judicial process for persons with civil rights grievances. Certainly in non-frivolous cases, a prisoner should not have any difficulty in obtaining the service of counsel today. So, that really is not an impediment.

I ask that the Court consider affirming the Sixth Circuit court decision.

QUESTION: Thank you, Mr. Caruso.

Mr. Mullkoff, do you have any rebuttal?

REBUTTAL ARGUMENT OF DOUGLAS RYAN MULLKOFF

MR. MULLKOFF: Brief rebuttal.

We disagree with the Respondent's contention that there is a federal policy of repose. Repose is a purpose of statutes of limitations systems. Congress hasn't enacted a statute of limitations system. They can if they choose to. Statute of limitations issues have been deferred in 1983 cases to the states. That's Congress' decision. Repose is a state interest, not a federal interest. It can't be fairly characterized as one of the purposes of Section 1983.

Virtually all of the reasons urged for affirmance by Mr. Caruso would require the Court to undertake a state-by-state, case-by-case review of tolling statutes to see if the statutes conflict with the purpose of Section 1983. We believe that this Court, through its decisions in Okura in January of 1988 and in Wilson v. Garcia, has moved in the opposite direction to simplify the rules relating to application of a statute of limitations to avoid that unnecessary litigation on collateral matters.

We urge the Court to continue this policy approach set out in Wilson and Okura and to reverse the lower courts.

Thank you.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Mullkoff.

The case is submitted.

(Whereupon, at 11:21 o'clock a.m., the case in the above-entitled matter was submitted.)