Swint v. Chambers County Commission - Oral Argument

Argument of Robert B. McDuff

Chief Justice Rehnquist: We'll hear argument now in Number 93-1636, Tom Swint v. the Chambers County Commission.

Mr. McDuff.

Mr. McDuff: Mr. Chief Justice and may it please the Court:

On the merits, the question in this case is whether counties in Alabama are liable for the unconstitutional actions of their sheriffs under 42 U.S.C. section 1983.

In terms of jurisdiction, which I propose to discuss first, the question is whether the court of appeals had the authority, by the virtue of what it called discretionary pendent appellate jurisdiction, to resolve the county liability issue in the first place on an interlocutory appeal.

Let me state at the outset that, because we believe the court of appeals was wrong on the merits, we would be pleased if its opinion were vacated one way or the other, but of the alternatives, we take the opposition that the case should be resolved on the merits.

We agree with our opponents, who asked the Eleventh Circuit to address this matter in the first place, that the court of appeals had the power to resolve the county liability issue coming as it did in the context of an otherwise valid interlocutory appeal on qualified immunity grounds, and with the trial already on hold in the district court until the appeal was completed.

We disagree with our opponents when they contend that the county liability issue is independently appealable as a collateral order.

As far as back as Owen v. City of Independence in 1980, this Court has stressed that local governments are not cloaked with common law or Federal constitutional statutory immunities, and those are the sorts of immunities that give rise to collateral order appealability in section 1983 cases.

Unknown Speaker: Mr. McDuff, could the district court judge have certified an appeal on this issue if it determined that judicial economy would be served by that?

Mr. McDuff: Yes.

Yes, he certainly could have.

Unknown Speaker: Was the district judge asked to do that?

Mr. McDuff: No.

Unknown Speaker: No.

Mr. McDuff: And I... I guess my opponents can speak to this better than I, but I assume he was not asked because, under existing Eleventh Circuit case law, the court of appeals had discretionary pendent review, and there was no need to take the district judge's time with a request for certification.

Certainly, if it had been done, we wouldn't have this issue today, and I do want to suggest that--

Unknown Speaker: Suppose the district judge had been asked and then... and refused to certify under 1292(b), could the Eleventh Circuit nonetheless exercise pendent appellate jurisdiction?

Mr. McDuff: --Yes, I think so.

Unknown Speaker: Under the--

Mr. McDuff: Under our view, yes, that's correct.

Unknown Speaker: --Perhaps this is a question better reserved for your opponent, but when... when the question of pendent appellate jurisdiction drawing in other parties came up for the district courts, Congress provided the solution in 1367, is it, in 1990.

Why should we approve a court-made solution to the problem on the appellate level?

Mr. McDuff: Because I think the situation in 1367 is very different, because there you're talking about parties who are not... who at least prior to 1367 were viewed by this Court in the Findley case as not even being properly in Federal court.

And I think that's very different than a situation where everyone is properly in the Federal case, and the only question is whether the issue and the parties should be in the district court or in the court of appeals.

And it seems to me that it would be hard to imagine a construction of pendent appellate jurisdiction where the court of appeals could review pendent claims of the party that had the right to bring the interlocutory appeal in the first place but could not review claims brought by other parties in the same case, even though everyone was properly in Federal court.

So I think there are two very different situations between the one encompassed by 1367 and the issue we have here.

Unknown Speaker: Mr. McDuff, it must be hard to argue a case where your opponent has not disagreed with you on the issue--

[Laughter]

--so you don't know what questions you're going to get, so I apologize for giving you this one, but we have held in the United States v. Stanley that there is no such thing as pendent appellate jurisdiction where the appeal... the reason the case is before the appellate court is section 1292(b), a certified question from the lower court.

Why should it be any different for--

Mr. McDuff: Because I think 1292(b) is a very different... well, let me answer it this way.

I think 1291 is a much broader statute and has been interpreted much more broadly than 1292(b).

1292(b) is guided by very specific factors, and has a very specific procedure where both the district judge and the court of appeals have to approve an interlocutory appeal of an issue.

Unknown Speaker: --Well, sure it does, but the basic reason why you assert pendent jurisdiction exists under 1291 is exactly the same.

What the heck, we're up here, we may as well make a clean sweep of it and get rid of everything that needs to be decided.

That same reason would apply in certified questions.

Mr. McDuff: But in a certified question, there is not a preexisting appeal.

In other words, the whole interlocutory appeal process starts anew with someone going to the district judge and saying we want to take this issue up, and I think that is a much narrower and much more focused situation than here, 1291, which is a broad jurisdictional statute, and where an appeal already exists.

I mean, for example, you could say that 1292(b), now that it has been passed and enacted and used, precludes the need for collateral order jurisdiction under 1291, and that we no longer need to have this whole notion of collateral orders under 1291 because you can achieve it under 1292(b), but collateral order jurisdiction has not been jettisoned because... I think because 1291 is a much broader statute.

Unknown Speaker: I wouldn't make that argument.

The argument I would have made... would make is that you don't need pendent jurisdiction, because to the extent it is really efficient to dispose of these other issues, you could resort to 1292(b).

Mr. McDuff: But it seems to--

Unknown Speaker: Have a lower court ask for them to be resolved, but if he doesn't--

Mr. McDuff: --It seems to us to be rather strange to have the notion of under 1291 an appeal that already is validly before the court of appeals... that is, the qualified immunity appeal in this case... yet the court of appeals has to have the permission, in effect, of the district judge in order to consider any other issues in the case.

Unknown Speaker: --Why isn't the answer to that Abney, which was on the books when 1292(b) was--

Mr. McDuff: I'm sorry.

Unknown Speaker: --Why isn't the answer to that the holding in Abney, which was on the books when 1292(b) was enacted by Congress?

Mr. McDuff: We've got three answers to Abney, and let me, if I can, spin them out very quickly.

I mean, first of all we believe Abney can be read as this Court exercising its supervisory jurisdiction over the courts of appeals, saying you should not consider pendent claims in criminal cases.

Second, and fall-back from that is that Abney can be read as a... if it's read as a jurisdictional limitation, it applies only to criminal cases in light of this Court's statement in several cases that the final judgment rule should be enforced more strictly in criminal than in civil cases.

And then third, if Abney is read as jurisdictional, and it is read to cover civil and criminal cases, we believe it is in conflict with earlier decisions, such as the Isen case and the Stude case, and that Abney doesn't comport with the broad spirit of 1291, and if necessary should be overruled to that extent.

Unknown Speaker: Well, that would be a point to be considered, but it's also the case that we're trying... or if our object is to consider what Congress' understanding of the scope of 1291 and 1292(b) might be, the fact that Abney came first before the enactment of 1292(b) would be a reason, whatever its soundness, for assuming that Congress intended the exclusive means of getting these related cases... related issues to beat 1292(b).

Mr. McDuff: I'm sorry, I misunderstood your point earlier, and I see it now.

Frankly, I don't think... I think it's there to say that Congress has probably not considered this situation in the same way that it had not considered collateral order appeals when Cohen came out in 1949, and--

Unknown Speaker: I mean, why should we make that assumption?

Abney was there on the books.

Congress enacted 1292(b) a couple of years later.

I mean, I would suppose the reasonable assumption is that Congress knew what we had been doing here.

Mr. McDuff: --But Abney does not contain a very thorough discussion of this issue.

I mean, all Abney says is the defendant tried to bring up the pendent claim, this is a criminal case, and you know, we don't want to encourage this sort of delay in criminal cases, and then there's a sentence at the end saying, therefore the court of appeals had no jurisdiction.

I do think it's... the discussion was so limited that I don't think as a practical matter the Members of Congress thinking about the final judgment rule and how 1291 is going on into the future were really thinking about that, and so I don't think that is an assumption that should guide this Court.

I think instead the Court should look at this the way it has interpreted 1291 in the past, whether it's with a final judgment rule or other rules, in a very broad way, in a way that will achieve the purposes of the... of 1291, which are the limiting of piecemeal appeals and the limiting of effective administration of justice, and another example I want to give is... is the final judgment merger rule, which of course has been around for a long time, and we refer to this at page 19 of our supplemental brief.

Under the final judgment rule as applied in section 1291, once there is a "final decision"... that is, a final judgment... the court of appeals has the authority to review all prior interlocutory decisions in the case, even if they could not normally be thought of as final decisions.

Unknown Speaker: That's the very purpose of a final judgment rule that says, you reserve all of your objections all the way down the line, and then you have an appeal from the final judgment.

That's the very objective of a final judgment rule.

But you didn't ask the Eleventh Circuit to do this.

Mr. McDuff: That's correct.

Unknown Speaker: Your opponent did.

Mr. McDuff: That's correct.

Unknown Speaker: And perhaps we ought to let you address the next question you have and ask your opponent, who was responsible for bringing the pendent claim urging the Eleventh Circuit to take it, to continue with the 1292(B)/1291 question.

Mr. McDuff: Very well.

Unknown Speaker: Although you are aiding and abetting him.

[Laughter]

Mr. McDuff: We were forced to.

We were drug along.

In terms of the merits, the Eleventh Circuit in this case never disputed the fact that the sheriff's authority to set law enforcement policy within his or her county is final and unreviewable.

However, the court said it's not the county's policy that the sheriff is setting.

The court of appeals never said for whom... for which unit of Government the sheriff sets policy but the only alternative I think would be the State, and that's what our opponents contend.

But in looking at Alabama law, three factors stand out and together demonstrate in our view--

Unknown Speaker: Mr. McDuff--

Mr. McDuff: --Yes.

Unknown Speaker: --ordinarily we give great deference to the determination of a court of appeals that reviews cases from a State like Alabama regularly as to what Alabama law is.

You have a fairly heavy burden, I think, if you want to persuade us that the Court of Appeals for the Eleventh Circuit was wrong on Alabama law.

Mr. McDuff: Mr. Chief Justice, we don't... we don't say that they were wrong in saying what Alabama law means as a matter of State law, but we are saying, given what Alabama law is and what the Eleventh Circuit said it is, it has a different result in terms of the Federal law than the Eleventh Circuit said it did.

I mean, the question of what does State law mean, and what are the parallel relationships in State law, that is a State law question, but given State law, the next question is, does that mean that as a matter of section 1983 a particular official sets final policy.

Unknown Speaker: Well, you would agree, then, that whatever the Eleventh Circuit said, if the sheriff is enforcing Alabama State law rather than the policy of the county law, that that would be binding, but you say the Eleventh Circuit was wrong, it was the consequences of that for the 1983 action?

Mr. McDuff: No, I'm sorry, I didn't mean to say that.

I think where the Eleventh Circuit says that the sheriff is enforcing State policy rather than county policy, we do dispute that, and I don't think they're entitled to any deference on that.

I don't think that is an interpretation at State law.

That is a conclusion.

Unknown Speaker: I would think it would be preeminently a question of State law as to where the sheriff derives his authority, where does the policy come from that he enforces.

I would think that would be preeminently a question of State law.

Mr. McDuff: I think... we perceive that as a conclusion that the Eleventh Circuit drew from the givens of Alabama law.

The fact that the sheriff has final and unreviewable authority within the county and not outside the county, that's a State law question.

The Eleventh Circuit never disputed that.

The fact that the sheriff is elected by the voters of the county, State law question.

The Eleventh Circuit never disputed that.

The fact that the sheriff's office is funded by the county commission, State law question.

The Eleventh Circuit never disputed that.

Where the dispute comes is, given those factors of State law, what does that mean in terms of Federal law, in terms of section 1983, as to the question for which body the sheriff sets policy and which body is therefore going to be held liable for the actions of the sheriff?

We think that's a Federal law question and the Eleventh Circuit was just wrong on it.

The--

Unknown Speaker: This sheriff has Eleventh Amendment immunity for suits against him in his official capacity.

Mr. McDuff: --Well, that's what the district court actually said in an early order in this case when it dismissed the sheriff in his official capacity.

We disagree with that, and there's a footnote in Parker v. Williams in the Eleventh Circuit where they discuss this issue, and they say pretty much the same thing.

They say, if the sheriff is being sued as a representative of the State, he has Eleventh Amendment immunity.

Unknown Speaker: I thought there were holdings to that effect in the Eleventh Circuit.

I thought there were holdings to that effect and not just passing statements.

Mr. McDuff: The only one I'm aware of is... and this is the one that pertains to Alabama... is the one in Parker v. Williams, and at the end of that footnote the Eleventh Circuit says, now, to the extent the sheriff is being sued in his official capacity as a representative of the county, we don't need to pass on that because the county is a defendant in Parker v. Williams anyway.

So although the Eleventh Circuit sort of held that he was protected by the Eleventh Amendment in his official capacity, they seemed to have maybe an escape valve from that, if when one sues the sheriff in his or her official capacity you're talking about a suit against the county and a suit against the sheriff as a representative of the county.

If there are no further questions, I'll reserve the remainder of my time for rebuttal.

Unknown Speaker: Very well, Mr. McDuff.

Mr Wolfson.

Argument of Paul R. Q. Wolfson

Mr. Wolfson: Mr. Chief Justice and may it please the Court:

The dispute between the parties on the merits is whether the sheriff of Chambers County acted with the authority of that county when he made the decisions that led to the alleged constitutional violations in this case.

Now, in our view, the court of appeals erred because it looked to the label that was placed on the sheriff by the State rather than to the nature of the authority that he exercised, and the Court has made clear that the courts, when they determined who is a final policymaker for purposes of section 1983, must examine all of the relevant legal materials, including all the positive law, as well as the custom and usage, and although section 1983 was not intended to bring the States into Federal court, nevertheless that when the sheriff makes decisions and acts with the authority of the county, he may subject that county to liability under section 1983.

In our view, examining all of the relevant legal materials leads to the conclusion that the district court properly denied summary judgment to the county, because it does appear that in the area of law enforcement the sheriff of Chambers County exercises county authority for which... and his decisions are county policies for which the county may be held liable, and we look to the--

Unknown Speaker: Are you saying, then, the county can... if the sheriff decides he wants to do one thing that he thinks the law requires, can the board of supervisors say no, you're wrong on that?

Mr. Wolfson: --My understanding is that the board of... the county commissioners do not exercise supervisory authority over the sheriff, but... and the court--

Unknown Speaker: Then why do you say it's the policy of the board of supervisors that he's carrying out?

Mr. Wolfson: --No, our... we think that the court of appeals and the respondent make this mistake.

They confuse the power of the county commission with the authority of the county.

And in our view the sheriff... the situation in Chambers County is a familiar one of separation of powers, where the sheriff has the power over law enforcement, and he has the final policymaking authority in that area, the county commission has the power of the purse and various other powers that county commissions have, and they have final policymaking authority in that area.

And there are other... there are other officers in Chambers County who are similar to the county sheriff.

There's the county tax assessor, there's the county tax collector, the county coroner.

All of these county officers are directly accountable to the people, and they exercise county authority even though they may not be accountable to the board of supervisors and the board of commissioners in a direct way.

So I think on that point the way that the... the error that the court of appeals made was saying that because the county commissioners could not exercise law enforcement authority, that also meant that the county could not.

Unknown Speaker: Well, how would the county exercise law enforcement authority--

Mr. Wolfson: It's--

Unknown Speaker: --other than by the commissioners or by the sheriff?

Mr. Wolfson: --Our view is it's the sheriff that exercises law enforcement authority for the county.

He's elected by the people of the county for the purpose of enforcing the law within the county and apprehension of suspects within the county.

And we look for similar analysis... actually, we look to the Court's decision in Prapotnik and also in Pembaur, and in Prapotnik in particular, the Court seemed to indicate that it understood that separation of powers was quite common in local governments, and in that case the Court noted that the county... the city of St. Louis's, rather, personnel policies could be exercised either by the mayor or aldermen, or by an independent civil service commission, or by the two acting in some combination.

Unknown Speaker: Couldn't State officers also be elected by subunits of the State?

Mr. Wolfson: I would say this, there... what we looked--

Unknown Speaker: I mean, the fact that he's elected by the county doesn't necessarily show that he's not a State officer.

Mr. Wolfson: --I would say this, these factors: first, he's elected by the county for the purpose of exercising authority within the county, so he's not like a State legislator who is sent to the State capital, so he is exercising final policymaking authority within the county.

Now, on the other side of the coin, he does not follow any dictates of a higher authority, be it within the county or within the State.

He doesn't look to guidelines issued by the Attorney General of Alabama, or by--

Unknown Speaker: Doesn't the... don't the Alabama statutes say something about what the sheriff shall do?

Mr. Wolfson: --Yes.

The Alabama statutes say that the sheriff essentially has the power to exercise law enforcement in the county, and also--

Unknown Speaker: Do they say nothing more than that?

Mr. Wolfson: --Well, they say... they say a number of things.

They say that... our reading of them is they say no other sheriff from outside the county has any power, and there's no indication that the sheriff follows... that the sheriff looks to anybody in Montgomery.

In other words, he's not within a hierarchical command structure set up by the State.

He really is... he has the final say over law enforcement authority within the county.

Unknown Speaker: Well, I mean, so does a prosecutor.

Mr. Wolfson: Well, actually--

Unknown Speaker: I mean, a Federal prosecutor doesn't normally--

Mr. Wolfson: --Well, Federal prosecutors are subject, of course, to the command structure of the Department of Justice, I might refer to it... as I might refer to it, and actually in Alabama county--

Unknown Speaker: --Smilingly, as... I mean, I assume they have an enormous amount of independence.

Mr. Wolfson: --Well, but as a legal matter the Governor of Alabama cannot remove a sheriff of Chambers County.

Now, the sheriff of Chambers County may be removed by the voters at the next election if he doesn't exercise law enforcement authority properly, or if he... indeed, if he takes an unconstitutional action which the result is to visit liability on the county.

The voters may disagree with that, and in Owen v. City of Independence, the Court said that's an appropriate reason to visit liability on the county, and that county policymakers should consider that, but there isn't... there is nobody in Montgomery who is watching over the sheriff except a very limited power, the power of impeachment, which is a criminal proceeding where--

Unknown Speaker: Mr. Wolfson, you relied on three factors, the election, his salary is paid by the county, the expenses of his office are paid by the salary... by the county.

Is there anything more that's needed, as you view the case, to impose 1983 liability?

Mr. Wolfson: --I think those three factors are enough if there is nothing on the other side of the coin that says that he must follow higher authority from the State.

There are county... there are some forms of county structures, State governing structures where people are elected by the county but where they implement State policy under detailed procedures and guidelines.

In Alabama, for example, county... the county prosecutors are subject to written circulars of instruction, as I understand it, from the Attorney General, so even though they may be elected from the county they are constrained in the exercise of their discretion, as I understand it, by higher authority, but that is, as I understand it, completely absent in this case, and there is essentially nobody to review what the sheriff of Chambers County does.

Unknown Speaker: Mr. Wolfson, would the sheriff be considered a State officer for purposes of Eleventh Amendment immunity?

Mr. Wolfson: We agree with what petitioner said on that point.

We recognize that there are Eleventh Circuit decisions at least indicating that sheriffs sued in their official capacity are entitled to Eleventh Amendment immunity.

Unknown Speaker: And normally you would expect, then, that on this question of whether the sheriff is a State or county officer for purposes of this suit, that the result would be the same.

Mr. Wolfson: I would... I think that decision was incorrect by the district court.

I would rely on Brandon v. Holt for that, where the Court said suing a governmental official in his or her official capacity is really a pleading device that brings in the entity that he or she acts for.

I think when the sheriff was sued in his official capacity, the question is, well... the question was, in which capacity and that in some sense is before the Court today, and--

Unknown Speaker: Mr. Wolfson, you're assuming a dichotomy.

Is it necessarily true that the officer is either a State officer or, if not a State officer, a county officer which renders the county liable for him under 1983?

Might there not be many officers who are not State officers but nonetheless for which the county is not responsible under 1983 because it cannot control them?

Mr. Wolfson: --Well I... counties, as I tried to make the point earlier, here it's not that... the county can control the sheriff.

The county is the electorate.

Unknown Speaker: But not the body corporate that's being sued under 1983, and that's the whole assumption of 1983, isn't it, that you're dealing with something like a corporation?

Mr. Wolfson: Actually, Alabama law, as I understand it, refers to the county as the body corporate and politic, not the county commission, but--

Unknown Speaker: But the party here is the Chambers County Commission.

Mr. Wolfson: --I recognize that.

I would make two points in response to that.

First of all, we think that when the petitioners sued the sheriff in his official capacity, that was in effect naming the county as a party defendant, and it's true he was dismissed, but I think Brandon v. Holt compels that conclusion.

Second, as we understand it, the reason why the Chambers County Commission was sued was they have the power of the purse and I would have to defer to the other people who will be arguing, but my understanding is that the county is probably not a necessary and indispensable party under the Federal Rules of Civil Procedure.

Unknown Speaker: Well, but under your theory it's the county as an entity, rather than the county commission, that would be sustainable for liability, and yet the party here is the county commission.

Mr. Wolfson: The county was sued when the sheriff was named in his official capacity.

Unknown Speaker: And dropped.

Mr. Wolfson: It's--

Unknown Speaker: Thank you.

Mr. Smith.

Argument of Paul M. Smith

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

Our position on the merits in this case is that a county government cannot be held liable under section 1983 based on the actions of an official like the sheriff in Chambers County, who is properly treated as a State official both under State law and for purposes of the Eleventh Amendment, and who operates entirely free of control by the county commission.

Unknown Speaker: Well, why does the county commission have to have control?

For example, let's assume the county commissioners made ultimate law enforcement policy for the county.

The county would be responsible for them.

Mr. Smith: If the county commissioners make law enforcement policy, the county is clearly responsible for any actions by the county commission, because the county commission is the governing body of the corporation, which is Chambers County.

Unknown Speaker: Right, so if the repository of discretionary authority over law enforcement happens to be in the sheriff rather than in the county commission, why wouldn't the county, for the same reasons, be liable?

Mr. Smith: It is conceivable that State law could establish an independent, autonomous municipal official who has authority to make policy for the municipal corporation.

This is not this case.

Unknown Speaker: No, but if they do, I take it your answer is, yes, the county would be responsible.

Mr. Smith: Absolutely--

Unknown Speaker: Okay.

Mr. Smith: --if State law said that sheriffs are county officials with policymaking authority over law enforcement.

Unknown Speaker: So the issue as you see it is not whether there happens to be a county commission between "the county" and the sheriff, the issue is whether the sheriff is, in fact, a county official.

Mr. Smith: Well, I think there's two levels of inquiry, Your Honor.

I think first you have to look at whether or not the sheriff is a State official or a county official.

At that point, I think if you determine he's a State official, it is conceivable that there might be some areas of his activity where he works under the control and effectively is deputized to the county commission, and that's why we go on to look at control after we look at State law in our brief.

But I agree with you, the primary issue in this case is, is the sheriff a State official or a county official, and every indication here is that the's a State official.

This Court said the issue--

Unknown Speaker: Well, not every indication.

I mean, he's elected by the county, he's paid by the county, his expenses are paid by the county, his jurisdictional is countywide.

I mean, those are indications that he is a county official.

Mr. Smith: --Well, those things also apply equally to any number of people--

Unknown Speaker: For purposes of 1983, at least.

Mr. Smith: --Well, to begin with, Your Honor, the State constitution expressly designates him a State official.

He has... the same removal procedures apply to him that only apply to State officials and not to any municipal officials.

Unknown Speaker: Mr. Smith, can I ask a question?

Mr. Smith: Sure.

Unknown Speaker: Supposing the policy at issue is that in this county all raids of nightclubs shall be conducted by teams of eight SWAT officers dressed in a certain way and carrying certain arms.

That's the way the sheriff says we will conduct these raids.

Who in the State can tell him to conduct them differently?

Mr. Smith: The State legislature, to begin with, if it's--

Unknown Speaker: You mean they'd have to pass a statute to tell him not to conduct the raids--

Mr. Smith: --If that policy were illegal, he could be impeached by--

Unknown Speaker: --I'm not saying its legal or illegal, but the question is, who is the final person to decide whether that policy shall be carried out in this particular county?

Mr. Smith: --If he's--

Unknown Speaker: Under the present state of the law, without any new legislation.

Mr. Smith: --With respect to law enforcement decisions that are discretionary and are wholly legal, he has discretion to make that decision himself.

Unknown Speaker: So he could announce that policy and he would be the final authority on the effectuation of that policy within the geographic boundaries of that county.

Mr. Smith: Just as any number of other State officials in Alabama and everywhere else have a certain amount of discretion to set policy for the State--

Unknown Speaker: For particular counties?

Mr. Smith: --within certain confines of the law.

Unknown Speaker: For particular counties?

Mr. Smith: Circuit judges in Alabama, district attorneys in Alabama, all unquestionably State officials, are elected locally, their quarters and their equipment are all provided through the county commission.

They--

Unknown Speaker: Yes, but can they make rules for the county that are different from the rules in other parts of the State?

Mr. Smith: --Every time a prosecutor makes judgments about which crimes he's going to prosecute or not prosecute, within the bounds of the law, he's essentially setting some kind of policy, and he's clearly a State official doing that within the confines of Chambers County.

Unknown Speaker: So you're saying the sheriff is a State official who sets the law enforcement policy within the particular county.

Mr. Smith: I'm not saying that.

That's clearly what the law in Alabama is.

The... he has... I should note a sheriff has all of the absolute immunity that is accorded to State executive branch officials in Alabama, not accorded to any municipal officials.

The removal authority... and there's a fair amount of supervision as well at the State level.

The Governor can direct him to conduct investigations--

Unknown Speaker: Well, what supervision is there at the State level of the particular policy involved in this case?

Mr. Smith: --The supervision of this particular policy could occur in the sense that the Governor could direct him to investigate the Capri Club, could also demand a report in the activities that he has been conducting with respect to the Capri Club, and if he didn't get a report that was accurate, he could... that would be an impeachable offense as well, so there is some degree of--

Unknown Speaker: Does the Governor tell him to use nine officers instead of eight?

Mr. Smith: --As I indicated before, if it's a discretionary decision between two legal options about how to conduct a raid--

Unknown Speaker: The final authority on that is the sheriff?

Mr. Smith: --the State has made a decision to allow some discretion.

Excuse me, Your Honor?

Unknown Speaker: The final authority on that is the sheriff?

Mr. Smith: Yes, Your Honor.

There's no question about that.

Unknown Speaker: And that's a matter of policy.

Mr. Smith: It's a matter of policy that he sets for the State at the local level.

I think the other thing you have to focus on here is the Eleventh Amendment.

This Court just last month, or two months ago, said we determine whether or not a particular branch of Government or office of Government is covered by the Eleventh Amendment by looking at who would pay the judgment.

That was in the Hess case involving the port authority up in New York.

That is precisely the test of the Eleventh Circuit in a number of decisions in a row has applied in deciding whether or not the sheriff in Alabama is protected from suits in his official capacity under the Eleventh Amendment, and it is consistently held that the State would pay the judgment precisely because the State has always treated sheriffs as State officials.

Unknown Speaker: If the sheriff ran over somebody in the course of getting to some investigation, who would pay that judgment?

Mr. Smith: If he was sued under State law, there would be absolute immunity, because he has State immunity as a State official.

If he was sued--

Unknown Speaker: There's no tort claims thing?

Mr. Smith: --There's a board.

You can go to a board of adjustment for discretionary relief, but there's absolute immunity.

Unknown Speaker: Could... is there any... you said, if he's sued under State law.

Is there any other way for him to be sued?

Mr. Smith: Well, there might be a suit... I guess if it was a negligence claim he couldn't be sued under 1983, but... so that would be the only way, Your Honor.

You're right.

Unknown Speaker: I meant judgments in general, not 1983.

Mr. Smith: Yes.

Unknown Speaker: One of the concerns, which we don't know perhaps everything that there is to know about this, is because the district judge was cut off, and since you are the person responsible for bringing this to the Eleventh Circuit, I would like to step back and talk about the legitimacy of bringing the county up before the Eleventh Circuit, and first, do you agree that you could have asked the district judge to certify this question of the county's responsibility under 1292(b)?

Mr. Smith: Certainly you can always ask the district judge to do that.

I think the chances that it would have been granted in this case we can all speculate about.

Unknown Speaker: If that's so, aren't you just doing an end run around what Congress wanted?

Congress deliberately put in place a two-level discretion.

First, the district judge has to say, this interlocutory order is appealable.

Then, the court of appeals has to agree.

By this pendent party appellate jurisdiction, aren't you just demolishing that two-level discretion that Congress put in place in 1292(b)?

You could do an end run around 1292(b) every time.

Mr. Smith: 1292(b) applies to the question of whether or not the district court proceeding should be suspended and an appeal should go up to the court of appeals.

We're talking about a situation where that is already occurring as a matter of right under the collateral--

Unknown Speaker: For another party.

Mr. Smith: --For another party under a related issue.

Unknown Speaker: So that extent, you do an end run around 12... any time you have a legitimate interlocutory appeal of any party in the case, then it's totally discretionary with the court of appeals, and it doesn't matter what the district court thinks.

Mr. Smith: But that's been the rule that this Court has applied in any number of contexts.

Whenever there's been appellate jurisdiction to reach a particular order, the routine rule of this Court has been to say--

Unknown Speaker: The... what is the routine rule of this Court with respect to pendent party appellate jurisdiction?

You've given the example of Isen, which involved the same parties.

Mr. Smith: --Right.

Unknown Speaker: What is the routine practice with bringing up a party who could never have gotten there on any question on her own, and pending that party without consulting the district judge... the district judge here said, I'm not finished.

I'm going to revisit this before the case goes to the jury, and even so it goes up on your theory that it's all discretionary with the court of appeals.

Mr. Smith: Your Honor, I'm not aware of any case dealing one way or the other with the question of whether the pendent discretionary jurisdiction of an appellate court can include a claim brought involving a separate party.

Unknown Speaker: Well, if you're not aware, then it can't be the routine practice of this Court to sanction pendent appellate jurisdiction over a party who could not be there otherwise.

Mr. Smith: I would, though, Your Honor, point the Court to an area of the law that was not discussed in either of the supplemental briefs, and that is appeals that used to come to this Court under section 1252, which until 1988 was a statute that authorized direct appeals to this Court from any Federal decision or order, interlocutory or otherwise, holding a Federal statute unconstitutional, and the doctrine that was applied by this Court for decades was that such an appeal not only brings up the issue of the constitutionality of that Federal statute, but brings the entire case up to this Court, and this Court then said that it had discretion in those appeals to decide any issue that was present in that whole case, as the doctrine read.

And for example, in the Williams v. Zabares case in 1980, this Court dealt with an appeal from a Federal district court decision holding the Hyde amendment unconstitutional, and also in that same case the court had held various State statutes unconstitutional, and in this Court, the Court held that the district court didn't have jurisdiction to even discuss the Hyde amendment, but then said the whole case is here so we're going to go ahead and proceed to decide the merits of the constitutionality of these State statutes, issues which were not within the scope of the statute that brought the case up to this Court.

So there is--

Unknown Speaker: Nonetheless--

--The case was before the Court, not just an issue.

The whole case was before the Court.

There hadn't been a final judgment.

The case was done with, and all that that doctrine said was that when you have the whole case here you're not limited to deciding that single Federal question.

It seems to me quite a different--

Mr. Smith: --With respect, Your Honor, the doctrine was that on an appeal from an interlocutory order with respect to one issue, which is what the statute authorized, the whole case comes with it, and there's discretion to go beyond it, which is all we're saying here, that when there's an appeal of one issue in the case, courts of appeals, just as they do in preliminary injunction appeals, just as they do in mandamus situations, as the Court held in Schlagenhof, just as they do... used to under 1252 in appeals here, ought to have some discretion to decide issues that are clearly presented in the record of the case.

Both parties are telling them it's appropriate to decide it, and it just doesn't make any practical sense to tell the courts of appeals that they have to remand the case to the district court knowing that what they're doing is condemning the district court to carry on perhaps years of proceedings that are totally unnecessary--

Unknown Speaker: --Well, you could have asked--

Mr. Smith: --because of some legal error.

Unknown Speaker: --Could you have asked for a separate judgment under 54(b)?

Mr. Smith: Well, Your Honor, the county commission didn't actually have a clear ruling yet on the Monell issue, but if we had had a clear ruling against us on the Monell issue, then there wouldn't have been a judgment to enter, because--

Unknown Speaker: It's just the opposite--

Mr. Smith: --the claim would have still been pending against the county, so there wouldn't have been anything to certify under--

Unknown Speaker: --The district judge said he wasn't finished with it.

He said, I'm not making a final ruling.

I'm going to revisit this question.

Mr. Smith: --That's correct, Your Honor.

Unknown Speaker: So it was not only interlocutory within the case itself, but the district judge said, I'm not even finished with this single issue.

Mr. Smith: Although, Your Honor, the issue is clearly one purely of law, and the district court showed some confusion about that, at one point saying that there was enough to get the trial on the factual question.

Unknown Speaker: Well, the district judge--

--Yes, but that's the point.

You see, it isn't even final even as we sit here.

You can't... I don't think you could have received an order under 54(b).

Mr. Smith: No, that's correct, Your Honor.

There was not... there clearly was not a final determination in the district court on this Monell issue.

But the court of appeals saw that this issue was presented in the record of this case.

It's a pure issue of law that would, if resolved, allow the county to be entirely exonerated in this case, and it said there's no reason why we shouldn't go ahead and reach this pure legal question now that the case is up here, and help to expedite the processing of this case, something that made eminent practical sense in the context of this case.

Unknown Speaker: But even if the district judge had said, I think, and I'm not going to change my mind, that this county is liable under 12... under 1983, and now I'm going to hear the case on the merits--

Mr. Smith: Yes.

Unknown Speaker: --you couldn't have gotten a 54(b) order even then.

Mr. Smith: That's absolutely right, because all he would have been saying is that the claim is legally valid, and we have to go ahead and try it.

Unknown Speaker: Right.

Mr. Smith: So there wouldn't have been anything to get a 54(b) on, that's correct, Your Honor.

Unknown Speaker: You might have gotten a 1292(b).

At least that would have been technically okay.

Mr. Smith: Conceivably, although if we were talking about a separate appeal that would have stopped the case in its tracks, there would have been all sorts of issues of practicality there.

Here, the case was already stopped in its tracks.

The county is sitting there, and the individual defendants are going up on appeal.

There's clearly not going to be any sort of proceedings in the meantime, and it simply asked the court of appeals to take the opportunity that was presented by this separate appeal to resolve the additional issue.

Unknown Speaker: But that's a classic case for 1292(b), because it's a different party, and it... isn't it really?

Mr. Smith: It could be, Your Honor--

Unknown Speaker: Isn't that the precise case that 1292(b) was designed to provide a solution for?

Mr. Smith: --Although 1292(b) also has a, you know, a set of standards that have to be met that might not be met here.

Unknown Speaker: Well, sure.

Mr. Smith: When you have a different--

Unknown Speaker: That argues to the contrary, it seems to me, because you're bypassing those standards.

Mr. Smith: --The other thing, of course, here, is the county defendant was faced with case law in the Eleventh Circuit which made it perfectly clear that this was a perfectly appropriate thing to do, so I don't think it's fair to sort of criticize the litigation decision which was made to go ahead and--

Unknown Speaker: Well, we're not criticizing it.

It's a question of power, and I mean--

Mr. Smith: --Sure.

Sure.

Unknown Speaker: --either they're right or they're wrong, and we have to decide it that way.

Mr. Smith: Sure.

I understand that, but it seems to me that there's no reason to make people go through the hoops of 1292(b) when there's already the case going up to the court of appeals on a related issue.

At that point, it shouldn't be up to the district court to decide what the court of appeals' scope of review should be.

It should be... the court of appeals should have the traditional authority.

Unknown Speaker: Well, the statute says it's an appeal from a decision.

As in the Stanley case, it's an appeal from an order, and the decision describes a particular aspect of the case.

Namely, they decided there's no immunity here.

Mr. Smith: Sure, but that's exactly what 1292(a) says, and this Court has said for decades that when you get a preliminary injunction appeal you can go ahead and resolve the whole case, because it sometimes makes more sense to do that.

The Youngstown Sheet & Tube case was an appeal of a preliminary injunction, but the case was resolved on the merits because the Court has this equitable discretion to go ahead and broaden its review beyond the particular order that--

Unknown Speaker: Well, maybe... maybe that applies only if the issues are necessarily intertwined or antecedent.

I'm not sure there's any broad pendent jurisdiction at the appellate level for an issue that is neither intertwined nor antecedent, and I think the county sheriff issue is not in this case.

It's an independent issue.

Mr. Smith: --In nearly every--

Unknown Speaker: And I think you have to look at the statutes and see whether Congress has allowed the court of appeals to exercise pendent jurisdiction.

I frankly don't see that authority, but--

Mr. Smith: --Well, I guess I would say that you should look at the traditional way that the scope of review has been treated differently from the ability to appeal.

We're talking about how broadly a court of appeals can rule once the case is up to the court of appeals, and there's been a lot of play in those joints for many, many years, and Congress has never done anything to restrict it.

Unknown Speaker: --Was the courts of appeal pretty split on this issue, actually?

Mr. Smith: Well, they've become more split after Abney and begun to move in that direction, but I think, you know, one thing the Court might want to consider in looking at this is that the large number of decisions of the courts of appeals which have continued to try to find some way to broaden their scope of review in these situations because of the really serious practical considerations that come into play when you're a court of appeals judge sitting there, knowing that--

Unknown Speaker: Yes, but when Congress addressed this issue, it decided it wasn't going to leave it all to the court of appeals.

It could have done that.

It could have done... just had that one discretionary level, but it deliberately said we want the district judge to say if that judge thinks that this is going to expedite the case, an immediate appeal, and if the district judge says no, then under 1292(b) you can't do it.

Now, you presented this as, this is a routine matter, but I think now you recognize that it isn't routine, that we have never authorized pendent party appellate jurisdiction--

Mr. Smith: --Your Honor, I--

Unknown Speaker: --and the Congress certainly hasn't.

Mr. Smith: --I think if you think about it, though, the distinction between pendent claims and pendent parties is much murkier and much less clear in the appellate context than it is at the district court level, because the county was going to be a party to this appeal at least as an appellee, no matter what, and the claim of the county, the plaintiffs against the county was going to get up to the court of appeals sooner or later no matter what, so--

Unknown Speaker: Later, not sooner--

--It was--

--because the district judge wasn't finished with it.

Mr. Smith: --Right.

So it's a question of timing, rather than whether or not this is a dispute that will ever get into the Federal courts, which was what the Court was faced with in Findley, talking about pendent parties at the district court level.

So I think taking into account that quite different set of circumstances, and taking into account the discretion that has traditionally been read into statutes as specific as the one we're dealing with here, indeed, more specific, like 1292(a), that there's no reason to think that we're... when we're piggy-backing on top of a separate appeal, that we're doing anything that Congress would have thought was strange, or that was not left to this Court to authorize as an appropriate scope of review issue.

It's not a question of new appeals, it's a question of whether or not the court of appeals can go beyond one order to resolve other matters while... once the district court proceedings have been stopped in their tracks and the case has been brought up.

Unknown Speaker: Are there cases where it might be appropriate to piggy-back but where a certification could not be made under 1292(b)?

Mr. Smith: Well, I think there may be issues where the district court would appropriately say, this is not sufficiently serious or important--

Unknown Speaker: Would appropriately say?

Mr. Smith: --to merit a 1292(b).

Excuse me?

Unknown Speaker: Would appropriately say?

Mr. Smith: I certainly think that could be true, but at the same time the--

Unknown Speaker: Then I should think that would be a good reason for saying they shouldn't get up at that point.

Mr. Smith: --Well, Your Honor, once the case is going up with another appeal, though, there may be lots of practical reasons why the court of appeals would want to reach it, even though it might not satisfy the 1292(b) standards.

Unknown Speaker: But why is the court of appeals' interests significantly different from the district court's interest here?

I mean--

Mr. Smith: I think there's just a different standard that should be applied once you're talking about not creating an appeal, but simply what issues ought to be decided now that we've gone to the trouble of having a proceeding go to the court of appeals and at that point the court of appeals is just deciding what state the case should be in when we send it back, what we should tell the district court to do on remand.

It's just a whole different set of practical concerns that I would think allow a broader, freer hand.

Unknown Speaker: --Mr. Smith, you've mentioned 1292(a) several times.

I was under the same impression that Justice O'Connor is, that the cases that allow other issues to be brought up under 1291(a) allow to be brought up only those issues that are necessarily involved in the issue that comes before the Court.

For example, in every injunction case there's the question of the probability of success on the merits, and therefore you have to take that up in determining whether the injunction was probably issued... properly issued.

Are you aware of any cases that do not establish that as a criterion for bringing up a pendant issue?

Mr. Smith: Well, two points, Your Honor.

Clearly, there's a lot of cases which say you can go beyond looking at probability and discretion and just go ahead and decide the merits.

Unknown Speaker: But to some extent that merits question is necessarily reached, to some extent at least.

Mr. Smith: Right.

Now, there are cases... I'm not aware of a case in this Court, but there certainly are cases... Judge Friendly's decision in the Semmes Motor case cited in our brief, where there are just essentially two different issues.

There was a question of whether or not there ought to be a stay entered in one litigation, and then there was a preliminary injunction, and Judge Friendly said, I'm going to go ahead and decide whether the district court should have entered a stay, and that doesn't affect the propriety of the preliminary injunction.

I think these two issues ought to be decided.

That was certainly his view of how it ought to--

Unknown Speaker: Are there cases under 1292(a) where a party who could not have appealed is allowed to appeal because another party appealed?

Mr. Smith: --I've not found such a case, Your Honor.

Unknown Speaker: Which is what we have here.

Mr. Smith: Yes, Your Honor, and if you think that the distinction in parties makes a big difference, then that is clearly a difference.

As I was saying, I think that in an appellate context where you already have the second party coming up as an appellee and where--

Unknown Speaker: Why would the county be an appellee, just because it's a party to the litigation?

Mr. Smith: --Just because it's a party.

Conceivably it could be in there arguing that the... against the sheriff trying to--

Unknown Speaker: Yes.

Mr. Smith: --you know, so that the codefendant might be kept in the case.

I mean, there could be a conflict there.

That certainly will arise in some circumstances as well, where the codefendants are against each other on appeal.

Unknown Speaker: Mr. Smith, one of the reasons was the district could have made a difference... you said it's a pure question of law.

Mr. Smith: Yes.

Unknown Speaker: But custom and usage counts also under 1983, and perhaps when the district judge said, I'm going to revisit this, my decision is not final, that's what he had in mind.

That's what Judge Varner had in mind, that he wanted to look at not only what was formerly in the Alabama statute.

For example, do we know whether... could the county commission have said, this kind of raid is something we don't like, so we are telling this sheriff that we're simply not going to pay for it?

You're going to engage in this kind of raid, we're not going to pay for it?

Mr. Smith: Well, Your Honor, it's clear as a matter of law that they could not do that, that they are not authorized by State law to have any opinion whatever about law enforcement policy, and I don't think that's disputed here, so if such a thing occurred, it would be a violation of law by the county commission.

There may be times when you need some facts about custom and usage, but this is not such a case.

Here, the question is, what position does the sheriff occupy in the State hierarchy, and should he be properly viewed as a State official or as a county official?

Unknown Speaker: So when they... don't they audit his books, or... they pay for his office.

Don't they have to audit his books?

Mr. Smith: They have to... they have to pay the money that goes to pay his salary, which is set by State law, and sufficient supplies and material to let him carry out his office, and they have to give him a jail and an office to work in just as--

Unknown Speaker: Well, do they exercise supervision at least to the extent of making sure that he's not dining at the fanciest restaurant in town and charging the county for that?

Don't they go over his--

Mr. Smith: --There can be litigation over this issue.

What happens is that the county commission appropriates a certain amount of money, and if the sheriff thinks it's un... doesn't satisfy the State's statutory standard of reasonable necessity, then the sheriff sues the county commission.

Unknown Speaker: --I mean, does anybody look at his books to see how he is spending the county's money, and who is that somebody who does that?

Mr. Smith: I think there probably is... I'm sort of getting into speculation here, Your Honor.

There may well be some county executive official who could determine whether or not he's actually stealing money from the county and not spending it on inappropriate use, or something like that.

Unknown Speaker: Only stealing, but not acting unlawfully, or in violation of the Constitution?

Mr. Smith: Well... I'm sorry, Your Honor.

Unknown Speaker: But not spending the county's money in violation of the Constitution?

Mr. Smith: Well--

Unknown Speaker: If there is a county body, somebody commissioned by the county commission to audit the books... that's my question, is maybe yes, maybe no, but the district judge didn't have a chance to explore any of that because you took it right up to the court of appeals.

Mr. Smith: --Well, Your Honor, the question of whether or not the sheriff is a county official in this case is so clear as a matter of law that it's hard for me to understand how anybody could suggest that the reason to reverse here would be that it was preliminary.

This... the guy's clearly covered by the Eleventh Amendment under the standard that this Court announced just 2 months ago, and the State constitution--

Unknown Speaker: It's so clear we should have denied cert, I suppose.

Mr. Smith: --Excuse me, Your Honor.

Unknown Speaker: It's so clear we should have denied cert, I suppose.

Mr. Smith: Your Honor, well... I can understand how--

[Laughter]

--at first blush the suggestion that maybe a county sheriff is not a county official might have struck the Court as odd, but in fact if you view it in a historical context the... there's really little doubt that the State has taken responsibility for this official.

Unknown Speaker: I have a list, say, here, of... there are two things.

As you see the case on the merits--

Mr. Smith: Yes, Your Honor.

Unknown Speaker: --It's always possible we'll get to the merits.

If we do--

[Laughter]

--as you see it he's either a State official or a county official.

If he's a State official, you win.

If he's a county official, do you lose, or is there some other theory distinguishing between county commissioners and county something else, and county this, and county that?

As I understand your argument, if he's a county official, you lose.

If he's a State official, you win.

Do I have that right?

Mr. Smith: If he's a county official, I think it's perfectly clear he's a county policymaker on law enforcement.

If he's a State official--

Unknown Speaker: And then... and then if he's a county official, the county commissioners have to pay?

Mr. Smith: --I think that's correct, Your Honor.

Unknown Speaker: Okay.

Mr. Smith: If the State law held that, that was--

Unknown Speaker: All right, then that's how you're arguing.

Mr. Smith: --If he's a State official--

Unknown Speaker: I just wanted to know.

Mr. Smith: --I think the Court ought to look--

Unknown Speaker: If he's a State official, you win.

I've got that.

I just wanted to be sure it's a yes--

[Laughter]

Now--

Mr. Smith: --Well, to be fair... to be fair, Your Honor, I think it's conceivable you could have a State official who in some of his functions is deputized to perform municipal functions.

Unknown Speaker: --Of course.

I accept that.

Now what I have here is, I have two lists, and I want to be sure they're complete.

The main thing that I have in arguing for his being a county official is, he's elected by the county, salary is paid, the expenses of the office are paid, and his jurisdiction is primarily county.

Okay.

I have in favor of his being a State that there's a document somewhere in the State that says a State, like a statute or something, or a regulation.

Mr. Smith: The State constitution.

Unknown Speaker: Yes, right--

[Laughter]

--and that's important.

I don't mean to trivialize it.

That is important.

And the second thing is, he could be impeached by... he could be impeached by State level, and the third thing is there's some Eleventh Amendment cases.

Now, I want you to do... add... I'm asking because I want to know is there a fourth, fifth, and sixth thing I should put on that list?

Mr. Smith: In many of his functions he is supervised by the State officials.

The Governor can require reports, can require investigations--

Unknown Speaker: Good.

Mr. Smith: --The circuit judges supervise him, the district attorneys supervise him, the State Department of Corrections supervises him.

The county commission by law has no authority to supervise him, which also indicates that he's a State official.

He also has the immunities that are given to State officials under State law but not given to municipal officials under State law.

I think ultimately, though, the Court ought to look at the Eleventh Amendment ruling more than anything else, because the Court said in Will that the distinction between State defendants and municipal defendants is coterminous with the Eleventh Amendment, and we're going to not assume that the Congress meant to overrule any aspect of Eleventh Amendment immunity, and here--

Unknown Speaker: Mr. Smith, may I just go back to one point?

You were speaking of the supervisory authority of State officials.

I take it you agree that there is no supervisory authority that would require the sheriff to get the approval of a State official before setting the kind of policy for the county that is alleged to have been in effect here?

Mr. Smith: --That's correct.

Unknown Speaker: As he said in Justice Stevens' question, now, if we're going to have raids in this way, with people dressed like this, without prior notice and so on, there's no one in the State that he has to... at the level of State government whose approval he has to get in order to implement that policy.

Mr. Smith: That's correct, Your Honor.

Unknown Speaker: Okay.

Mr. Smith: I think the State of Alabama, for its good and sufficient reasons, has decided there needs to be a certain amount of discretion over law enforcement functions at the local level, because crime is local and that's where we're going to have it enforced.

Unknown Speaker: I am puzzled by your answer to Justice Breyer's questions, which seem to accept a dichotomy between State official and county official.

Aren't there various... doesn't it depend on what you mean by county official?

Aren't there county officials who are accountable to and within the control of the organ of the county commissioners, and other officials who could be called county officials... they have county-wide jurisdiction, elected by the voters of the county.

Couldn't they be county officials without necessarily being within the control and therefore responsibility of the county commissioners?

Mr. Smith: Your Honor, I think it depends on what you mean by county officials.

When I answered that, I was assuming that he meant by county officials people who are designated by State law as the chief person of a particular area function for that county as a municipal corporation.

I think--

Unknown Speaker: For the corporation.

Mr. Smith: --I think it is possible for State law to set up autonomous executive officials who speak for a particular municipal corporation, if the law very clearly does that.

The control issue really comes in when it's murkier and where somebody's making the claim, well, sure they call him a State official in the State constitution, but in reality he's more of a local official.

Look, he's elected locally.

And then I say at that point you really ought to look at whether or not he's controlled by the governing body of the county.

Thank you, Your Honor.

Unknown Speaker: Thank you, Mr. Smith.

Mr. McDuff, you have 4 minutes remaining.

Rebuttal of Robert B. McDuff

Mr. McDuff: First, on... let me respond to Justice Ginsburg's question about whether there are any cases with pendant parties bringing otherwise nonappealable claims along with an appealable claim, and we cite in our brief the 1954 case in Chicago and Rock Island Railroad v. Stude, where it was a cross-appeal that the Supreme Court said should be... was properly considered by the court of appeals along with the originally appealable appeal by the cross-parties.

Unknown Speaker: Same people.

Mr. McDuff: Same people.

Unknown Speaker: The same people were already there anyway.

I was asking if there were any case, any authority from this Court where you bring up somebody who could not have gotten there as a petitioner or respondent and let that person, who the district judge isn't finished with, and say I can piggy-back on this other appeal.

Mr. McDuff: Yes.

I'm not aware of any case in this Court where there was a third party who came in, but I think the point is well made by Stude that the nonappealable claim was brought there and considered by a party that did not have an original right to appeal at that point, and even though it was a cross-appeal, we still see that as a sort of pendant party thing that allows nonappealable claims to be brought by parties who otherwise don't have the right to appeal.

And also, in terms of the court of appeals, at page 12 and 13 of our supplemental brief we cite some court of appeals cases, and of course there's some Eleventh Circuit cases where a third party came in.

Unknown Speaker: Well, one can understand why courts of appeals would be biased in favor of their discretion to the exclusion of the district court.

Mr. McDuff: Well, that may certainly be the case, or looking at the case once they have it, they see that the litigation can be advanced by taking and reviewing additional issues.

On the Eleventh Amendment point--

Unknown Speaker: Or, indeed, why we would be biased in that direction as well, I suppose.

Mr. McDuff: --Justice Scalia, you asked me earlier about the Eleventh Amendment case law... I mean, the Eleventh Circuit case law regarding the Eleventh Amendment status of a sheriff's suit in an official capacity.

There are some Alabama cases after Parker v. Williams that repeat the point in the Parker v. Williams footnote saying that sheriffs should be considered State officials for purposes of Eleventh Amendment immunity, and our view is that they are all a misconstruction of what Parker v. Williams said.

And let me say, there's nothing in the record here, and there's nothing in the Alabama statutes, about who will pay a judgment against the sheriff under section 1983.

There's nothing to say it's going to be paid by the State.

Our view, and this is from... I mean, our experience from outside the record is it's actually paid by an insurance policy from an association of county commissions, but at any rate, the Eleventh Amendment issue we do not think has been properly determined by any court.

We think the Eleventh Circuit's been wrong, and if it becomes necessary in this case, we will certainly challenge it.

Unknown Speaker: Who buys the sheriff's patrol cars?

Mr. McDuff: The county commission.

Now, in terms of the label, my opponent says that Alabama law labels the sheriff as a State official.

The only label they're talking about is section 112 of the constitution that says,

"the executive department shall consist of a Governor and some other officers and a sheriff for each county. "

That doesn't answer the question posed by section 1983 of for which body, for which governmental unit does the sheriff set policy.

Even if Alabama passed a statute and said, the sheriff sets law enforcement policy for the State, that label wouldn't answer the question, either.

You'd have to look at the functions as set up by State law, and if usage is any different from State law, you look at that.

In terms of labels, there are several statutes that refer to the sheriff as a county officer.

One of them is cited in... thank you.

Chief Justice Rehnquist: Thank you, Mr. McDuff.

The case is submitted.