MCMILLIAN v. MONROE COUNTY, ALABAMA

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Argument of Bryan A. Stevenson

Chief Justice Rehnquist: We'll hear argument first this morning in Number 96-542, Walter McMillian v. Monroe County, Alabama.

Mr. Stevenson.

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

We are before the Court on the question of whether an Alabama county is liable for the unconstitutional actions of its sheriff where the county's voters select and elect the sheriff, where the county's Treasury funds the conduct of the sheriff, and where the sheriff's jurisdictional authority is limited to the status of the county as one of Alabama's 67 counties.

At the outset, I think in thinking about this issue it's important to acknowledge that no one disputes that the sheriff is a final policymaking... a final policymaker in the area of law enforcement.

The Eleventh Circuit found that the sheriff... Alabama law gives the sheriff in Alabama final policymaking authority in the area of law enforcement.

Respondent concedes that the sheriff has final policymaking authority in this area.

The issue arises--

Unknown Speaker: Well, Mr. Stevenson, I assume that the plaintiff here also sued the sheriff.

Mr. Stevenson: --That's correct.

Unknown Speaker: And if there's a judgment against the sheriff, who pays it in Alabama?

Mr. Stevenson: The evidence in this case is that it will be paid by the county.

That is, that the county has taken out an insurance policy--

Unknown Speaker: So what difference does it make whether you can join the county?

If you're going to get a judgment against the sheriff anyway, and it's going to be paid, what do you care?

Mr. Stevenson: --Well, the policy is capped, Your Honor, and because we don't know yet whether the county has the option of disclaiming the conduct in question, then it does make a difference.

Unknown Speaker: Well, presumably if you sue the sheriff and get a judgment, somehow that money is going to be produced to pay the judgment.

Mr. Stevenson: That's not required under Alabama law.

That is, what happened in this case is that there is evidence... and again, the evidence is not developed... that the county has elected to take out a policy which may cover the sheriff's conduct here, and while we think that's relevant in deciding the county's interest in this matter, it's not dispositive of whether the petitioner will have access to county funds, and it's certainly not required under Alabama law.

Unknown Speaker: You suggest perhaps in other Alabama counties there might not be an insurance policy--

Mr. Stevenson: That's correct, Justice... Chief Justice... Mr. Chief Justice, that there may not be--

Unknown Speaker: --Well, has there ever been a judgment against a sheriff in Alabama in a civil case or a 1983 case in the history of Alabama?

Has there ever been a civil judgment against the sheriff in his capacity as sheriff?

Mr. Stevenson: --Yes.

Unknown Speaker: And have the judgments been paid?

Mr. Stevenson: Not necessarily by the counties, no.

Unknown Speaker: But have they been paid, somehow?

Mr. Stevenson: It depends on the solvency of the sheriff.

If you mean, can the... can a judgment be collected by the individual sheriff, I think that's... yes, the answer to that question is yes.

That is, we can recover from the sheriff, but our position is obviously that where the sheriff was able to effect Mr. McMillian's, the petitioner's arrest, and to put him on death row pretrial, and to suppress evidence that was withheld from the prosecution, he did that because he had the power and status given to him by the county.

We think that 1983 ought not limit the remedy--

Unknown Speaker: Well, maybe it was given to him by State law, or by the State constitution.

Certainly the sheriff had the power and the authority to take the actions apparently that he did.

Mr. Stevenson: --Well, yes, but under Alabama law the provisions that deal with the conduct in question here make it clear that he exercises that authority for the county.

On page--

Unknown Speaker: Well, I suppose... correct me if I'm wrong.

I would suppose that if in Alabama the county is liable for the acts of the... for the judgments of the sheriff, that would not necessarily follow in a 1983 suit, because you'd still have to comply with Monell.

Mr. Stevenson: --That's right, and we think that's how the Eleventh Circuit dealt with this issue.

The Eleventh Circuit held that because the sheriff's law enforcement authority is not shared with some other county official, that the county is somehow not liable.

We think that's a misconstruction of this Court's opinion in Monell and its progeny, and this Court has never held that only local legislative bodies can make policies for which a county is liable.

Just in the same way that a mayor can create a policy that the city council is not responsible for, the city council does not control, he nonetheless makes a policy, if it's final, that would subject the city to liability.

Unknown Speaker: Are you asking for a rule that if the final policymaker is elected by an entity... here, the county... that entity is necessarily responsible for the judgment?

Mr. Stevenson: Not... it does not turn entirely on the election by the county's voters.

We think that's an important element, Justice Kennedy, but it's not the only element.

Here--

Unknown Speaker: What else is there?

I really don't see what else you rely on.

Mr. Stevenson: --Yes.

Well, there are several things.

The second factor, in addition to the county's election, the voter's election, is that the county pays for, the county equips, the county funds, the county provides the resources for all of the sheriff's law enforcement functions, and the county actually does that with some discretionary authority.

There is reasonableness language in the statute that deals with the commission's authority to authorize a budget and to authorize expenditures.

The third thing--

Unknown Speaker: You say the county does this, but the county does this under compulsion of State law.

Mr. Stevenson: --That's correct.

Unknown Speaker: It's directed by State law.

It's not a matter of self-governance in which the county decides, we will provide so much money to the sheriff.

Mr. Stevenson: That's correct, Your Honor, and that's true of all of the county's functions.

That is, the county commission exercises its authority over roads, et cetera, under--

Unknown Speaker: In this State, but not in all States.

Mr. Stevenson: --That's correct.

Unknown Speaker: States do have charters in which the counties are self-governing.

Mr. Stevenson: That's correct, and I guess our position is that that's not required to trigger municipal liability for these purposes.

The third thing is that the county's authority--

Unknown Speaker: Mr. Stevenson, before you get onto the third thing--

Mr. Stevenson: --Yes.

Unknown Speaker: --Staying with the money, do I understand correctly that it's also the coroner and the tax assessor that are paid by the county, but other people who are elected... say, the district attorney or local judges... are paid by the State?

Is that--

Mr. Stevenson: That's correct.

In Alabama, the district attorney is not necessarily limited to a particular county.

The judicial circuit that was created for Monroe County is a judicial circuit that includes other counties, and so the district attorney receives his or her check from the State, from Montgomery, Alabama, and that's true for the judges as well, and so there's a distinction between the sheriff and those other judicial officers.

Unknown Speaker: --How about the coroner and the tax assessor, who are paid by the county?

Are they final decisionmakers in their realm, unreviewable by the commission, as well?

Mr. Stevenson: Yes, Justice Ginsburg.

They are county officials, paid by the county, elected by the county.

They get their resources from the county Treasury, much like the sheriff, but yes, they have final policymaking authority in their respective areas, inquests for the coroner, tax assessments and that sort of thing for the tax assessor.

Unknown Speaker: The county commission, then... and that's your form of county government in Alabama?

Mr. Stevenson: That's correct.

Unknown Speaker: --could not instruct the tax assessor to do things in a particular way?

Mr. Stevenson: Not in compliance with Alabama law.

There is no statutory authority for the county commission to direct the conduct of any of these county officials, and that's why we contend that there need not be some sharing of authority before the county be liable.

The third thing, Justice Scalia, would be--

Unknown Speaker: I knew you'd get back to me.

Mr. Stevenson: --Yes.

[Laughter]

The third thing would be the jurisdiction of the county.

Alabama law has created 67 counties.

They have legal status.

That legal status matters in the area of law enforcement because the sheriff here cannot conduct any law enforcement functions outside that jurisdiction.

The fourth thing--

Unknown Speaker: Well now, wait, let's talk about the third for a minute.

Mr. Stevenson: --Okay.

Unknown Speaker: Are you saying anything other than the sheriff has no authority outside the geographical limits of the county?

Mr. Stevenson: Well--

Unknown Speaker: I don't see why that makes him necessarily a county official.

Certainly you can have State officials, each of whom has jurisdiction within each of the various counties.

Mr. Stevenson: --Yes, but I guess my point would be that if they're State officials that are part of some State command, then their jurisdiction and their authority and their ability to perform the functions which they have been trained and prepared for aren't necessarily limited to that jurisdiction.

The chief of command may pull them to another division.

For example, we have a Department of Public Safety in Alabama that has ABI agent, Alabama Bureau of Investigation agents dispersed across the State.

They may be assigned to a particular area, but if the head of that division decides to move them to another part, to Birmingham or Mobile, there's nothing about their status or their function or their jurisdiction which limits that.

Unknown Speaker: What about the prosecutors you referred to earlier, the State prosecutors, whose jurisdiction exceeds the county but does not exceed the judicial district.

Can they be moved to another judicial district?

Mr. Stevenson: Yes, Your... I don't know that they could be moved in the sense that someone can assign them, but they have authority to prosecute cases in other counties at the direction of the court.

They have the authority to sometimes be sort of prosecutors when there's some conflict between another local prosecutor in another jurisdiction, and the defendant or the victim in a particular case, so in that sense I think they're more properly seen as state officials who might be able to exercise some legal authority in some other area.

Unknown Speaker: Are they elected by the county?

Mr. Stevenson: They're elected by the judicial circuit.

That is, if the judicial circuit is bigger than the county, then everyone in that judicial circuit would be the voting--

Unknown Speaker: Is that any different from the sheriff of one county being able to enter into another county in hot pursuit?

Do you have any hot pursuit law?

Mr. Stevenson: --Well, I think it's different in this way, Justice Scalia.

There may be exceptions where exigencies might give the sheriff the opportunity to conduct some conduct, but they're recognized as exceptions.

They're recognized in some ways as giving permission to the sheriff to exceed lawful authority.

Unknown Speaker: I understand that, but it seems to me that the instances you were describing of the prosecutors being able to act elsewhere were also exceptional instances.

Basically, they were limited to the judicial district to which they're assigned.

Mr. Stevenson: I think that's a fair criticism, but I think it's less exceptional both as a matter of practice and as a matter of law, for the prosecutor to engage in this kind of conduct some place else.

And I think this point is emphasized by the next thing I'd stress, which is that Alabama law requires that another elected county official take over law enforcement functions if the sheriff cannot perform them.

That is, the county coroner under Alabama law assumes law enforcement functions for those circumstances and times when the sheriff can't do that.

I think that's because the State law recognizes that the county, the county's residents, have some investment, have some stake, have some authority over at least the selection in that limited circumstance of who should be performing the law enforcement functions in that particular community.

The other things that I would point to would be the many references in Alabama law that clearly designate the sheriff as a county official.

We've cited in our brief, and I'll cite again or just acknowledge again that the Alabama code... and this is at our brief at page 21... expressly identifies as county officers the sheriff of Alabama... the sheriff of a particular county.

Unknown Speaker: The constitution I think identifies him as a State official.

Mr. Stevenson: What the constitution does, Justice Breyer, is identify him as a member of the executive department, and we don't dispute that.

When you look at that language, however, what the constitution says is that the sheriff is a member of the executive department, and the words they use are, sheriff for the county.

Unknown Speaker: I'd like to get your answer to this, which is the problem that's bothering me the most from your point of view.

If I looked at Alabama law, the supreme court of Alabama, in what I'd think is the most closely analogous area, the most closely analogous question would be, for State law purposes, is this sheriff a person under tort principles where the county is held liable under respondeat superior, and the Alabama supreme court says no.

It says the sheriff of a county for jail purposes is not considered an employee of the county for purposes of imposing liability upon the county, so if that's Alabama law, and they're saying for purposes of imposing liability, respondeat superior in tort, he's not a county official, how do you get around that problem?

Mr. Stevenson: Well, I think that Alabama law is in conflict on the question, on that particular question in part because the Alabama courts have clearly said that they want to immunize both the State and counties from tort judgments for this kind of conduct.

We don't think, though... obviously that's not going to resolve the Federal question, which, as this Court has always acknowledged--

Unknown Speaker: But what would the... but when you say conflict, I have a case here called King v. Colbert County, May 7, 1993, and it seems to say quite clearly the sheriff is not considered an employee for purposes of imposing liability upon the county.

Mr. Stevenson: --That's right, Justice Breyer.

Unknown Speaker: Is that in conflict?

Mr. Stevenson: That's not in... there's no conflict about the tort liability of the State or the county with regard to--

Unknown Speaker: All right, so then why should 1983 impose respondeat superior constitutional tort liability upon a body that States do not impose respondeat superior liability upon?

Mr. Stevenson: --It shouldn't.

The Federal question here does not require this Court to impose respondeat superior liability.

If you accept our view, you recognize that the sheriff is the county official who engages in law enforcement authority for the county, so in that sense, he is the master.

He's the superior.

No one is under his control in a way, or he's not under someone else's control that we're asking you to make that party liable.

What the Alabama counties have done is shield counties and States from liability.

That's something they can do under State law.

But it's our position that Federal... section 1983 was intended to provide Federal remedies for people like petitioner--

Unknown Speaker: But you are asking us to hold the county liable for the actions of the sheriff.

It's not as if you were saying, we're just after the sheriff.

Mr. Stevenson: --No, that's right, but--

Unknown Speaker: So that is respondeat superior in a sense.

Mr. Stevenson: --Mr. Chief Justice, our position is that it's not in this respect.

We're... our position is that because the sheriff is a county official, because he does exercise final policymaking authority for the county, and the county controls that sheriff in the sense that they elect him, the county funds that sheriff in the sense that they pay for his or her conduct, and that that sheriff is tied to that jurisdiction, that there is this nexus between the county and the sheriff that does not make this respondeat superior.

When Congress was talking about respondeat superior, this kind of vicarious liability in 1871, they were dealing with the Sherman amendment which was trying to make counties liable for any conduct by any persons riotous or tumultuously assembled in the community.

That was liability, you know, for everyone by anyone.

The sheriff is not anyone.

He is a government official.

He has been elected and empowered by the local government to do the conduct that we're complaining about, and under those facts and circumstances--

Unknown Speaker: But as Justice Breyer pointed out in his question the supreme court of Alabama has said he is not a county official for tort purposes.

Mr. Stevenson: --For tort purposes, that's correct, Your Honor.

Unknown Speaker: Well, this is a constitutional tort that you're suing for, isn't it?

Mr. Stevenson: That's true, Your Honor, but with regard to whether the State law immunities bind this Court, it is certainly our position that that's not true.

This Court has always held that Federal law cannot be decided on the way in which a State may choose to limit remedies under these kinds of actions.

Unknown Speaker: Well, suppose it were the other way around.

Supposing the Alabama supreme court in the case that Justice Breyer has discussed said that the county is liable for what the sheriff... it seems to me that you would certainly cite that, and you would have an open and shut case.

Mr. Stevenson: Well--

Unknown Speaker: So why doesn't it work the other way around?

Mr. Stevenson: --Well, I think if that was all that was said, that is, if the sheriff was not elected by the county's officials, if the sheriff did not have this relationship to the county government, the county Treasury, the county as a jurisdiction, we might still have a problem, and I guess that's why I'm saying that the Congress doesn't resolve this issue.

Under Regents and all of these Court's... this Court's decision in the Eleventh Amendment context and in other contexts we've always made clear that Federal law resolves these kinds of questions, and I think that's consistent with what Congress was trying to get at.

Certainly Congress did not intend, in 1871, to provide this Federal remedy only to have State courts then decide that the constitutional officers or the county officials involved in this kind of conduct can be shielded from Federal remedies by designating them as something other than the county officials that the rest of the code identifies them as being.

And Justice Breyer, my conflict term was a term not about tort law per se, but about all of these other provisions in the Alabama code that clearly designate the sheriff as a county officer, and the supreme court, the same State court has held the county sheriff to be a county official in other contexts.

When there's a question of pension or employment he's a county official.

When there's a question about the discretion that the county commission has to not make payments for law enforcement functions, the sheriff is a county official that then has legal authority to make the county commission give him or her the resources to do those... do that kind of conduct.

Unknown Speaker: Mr. Stevenson, I want to know who we bracket the sheriff with, and so I'd like to go back to the coroner and the tax assessor to see.

Mr. Stevenson: Yes.

Unknown Speaker: Is the same... is the answer to Justice Breyer's question about respondeat superior the same thing with respect to those officers, or is the county liable for their common law torts?

Mr. Stevenson: The county is liable for the coroner's conduct.

I'm not aware of any State law that deals with the tax assessor in that context.

Unknown Speaker: So the State does have... the county has respondeat superior liability for the coroner.

Mr. Stevenson: Yes.

Again, I would resist the framing of that liability as respondeat superior.

In our view, the tax assessor and the coroner are different parts of the power structure of the county government, just like the mayor and the city council and the aldermen.

Unknown Speaker: If it's not respondeat superior, what is it?

If the president of a corporation does something wrong, and the corporation is sued, don't we say that's respondeat superior, or am I missing something?

Mr. Stevenson: No, that's right, but if a body--

Unknown Speaker: And if the mayor of a city does something, and the city is held liable on the judgment, isn't that respondeat superior?

Mr. Stevenson: --I don't... in my understanding, no.

That would be basically the city being liable for the conduct of one of its officials, and when they'll use this terminology--

Unknown Speaker: But why?

The city itself hasn't done it, other than through a human agent.

Mr. Stevenson: --Yes, and so in that sense the city is the person that is represented by its official.

In that context the official--

Unknown Speaker: If it's not respondeat superior, what is it, some semantic legal category that I've never seen before?

Mr. Stevenson: --Well, I guess it would be the city's officials making policy for the city in a way that creates liability for the city.

Unknown Speaker: Isn't it simply imputed liability?

Mr. Stevenson: I think that's a fair statement of--

Unknown Speaker: I mean, any corporation is liable only by imputation from its officers, and the only reason we're worried about respondeat superior here is that we've got a case that says we don't have respondeat superior liability under 1983 in the sense that there's got to be a policy condition met, but respondeat superior is a variety, certainly, of imputed liability, and this is imputed liability, right?

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

Unknown Speaker: And in Alabama they say there is no imputed liability as between the sheriff and the county.

Mr. Stevenson: With regard to State law.

Unknown Speaker: With respect to State law, and you say that's a Federal question, and that does not bind us.

Mr. Stevenson: That's correct, because the county does engage in the kind... the same relationship that exists between the county commission, about whom I think we'd have to concede does have authority to make policy that would create liability for the county, the same relationship between the county commission and the county, that entity.

And you're right, that county, that city, can't go out and arrest somebody, or subject someone to the kind of conduct that our client was subjected to.

The same--

Unknown Speaker: When we're interpreting Monell, why don't we use... why aren't the same policies that inform that decision as to respondeat superior applicable equally as well to imputed liability?

Mr. Stevenson: --Because I think that the Congress intended to make localities liable.

That is, the Treasury of the locality liable--

Unknown Speaker: It intended to make municipalities liable because they were like corporations.

That's why we decided Monell the way we did, that in fact they were municipal corporations, but surely it is an essential characteristic of a corporation that its board of directors can decide what happens within that corporation.

But you're coming before us here and saying that this is a corporation which should be liable under 1983.

However, the sheriff is not subject to the commands of the board of directors of the corporation, namely the governing body of the county.

That's what troubles me the most, that this doesn't fit into the whole theory of section 1983 liability for municipalities, which is that they are like corporations.

Mr. Stevenson: --Well, I think two things, Justice Scalia.

I think in imagining the structure of this corporation we have to imagine a board that has not only a county commission but a sheriff, a tax assessor, and a coroner, so in that sense we're not asking for you to do anything different than you would do in that traditional context.

This is just a corporate structure that has four elements: a county commission here, dealing with one part, a sheriff over here dealing with another part, and a coroner and a tax assessor.

Unknown Speaker: You say just a corporate structure that has four elements.

That's a corporation I never heard of.

Mr. Stevenson: Well, I think--

Unknown Speaker: You're saying it's just a person that has four heads.

I mean--

Mr. Stevenson: --Well, that's the second thing I'd say.

That is, when Congress passed this law they made it clear they were talking about bodies politic and corporate to embrace just these kinds of jurisdictions where the power is separated, where the power is directed to various officials.

I mean, in some ways it would be I think sort of exceeding the Court's authority to impose on municipalities a single view of governance, that single view meaning that you have to have a single corporate body that makes all of your policy decisions in order for that municipality to govern.

I mean, Alabama has chosen to divide these powers in the ways that provide the sheriff with some functions, the county commission with some other functions, and the tax assessor and coroner other functions, and I don't think that the Federal law would require that to change.

Unknown Speaker: --But the decision was not to make counties liable.

That was not the 1983 decision.

The decision was to make corporations liable.

Counties became liable only because they were corporations.

That was the whole basis of our analysis.

Mr. Stevenson: Well, I guess our position would be it was also to make these political bodies that have status, that have power to engage in the kind of unconstitutional conduct, to empower someone to do the kind of unconstitutional conduct that took place here, to make those municipalities liable for that conduct.

Tom Tate the individual could not have subjected our client to threats of summary execution, suppressed the evidence that resulted in his wrongful conviction and 6 years on death row for a crime he didn't commit by himself.

He could only do that with the power given to him by the voters of Monroe County.

Unknown Speaker: Mr. Stevenson, do we have cases involving actors who are admittedly county actors who are not responsible, not answerable to any board of the county, but who are... have been held final decisionmakers they are, who trigger Monell liability?

Mr. Stevenson: Yes.

I think this Court's decision in Pembaur is precisely such a situation, where this Court found that the county sheriff and the district attorney had final policymaking authority in the area of search and seizure and arrest, and that the county could be held liable for that conduct, and in a variety of contexts this Court has done that.

So it's not a novel notion to hold some other entity, other than the local legislative body, as a final policymaker who can create policy that makes... that binds the municipality or the county liable for that unconstitutional conduct, particularly where here the ability to do that is dependent on the power, the authority, the status, and the resources provided by that municipality.

I mean, again, Tom Tate the individual could not have done what he did to petitioner without the resources, without the funds, without the power given to him by the county, and under those circumstances it's our view that, you know, Federal remedy ought not turn on the personal sovereignty of the individual wrongdoer.

Unknown Speaker: Yet the county commission has no authority over him.

Mr. Stevenson: That's correct, in the same way that they have no authority for other... over other county officials, and in that--

Unknown Speaker: So to say that he couldn't have done what he did without the county really is not quite accurate.

He couldn't have done what he did without the authority vested in him by the Alabama statutes to be a law enforcer.

Mr. Stevenson: --And the resources provided to him by the county commission.

That is, in that sense, his relationship to the county... that is, we distinguish between the county commission and the county, the body politic.

In that respect the county commissioners' relationship to the county is no different from the sheriff.

If the county commission creates a policy that's unconstitutional, the same control questions would exist, the same access questions to the county's Treasury would exist.

There's no difference functionally between the relationship between the county commission and the county and the sheriff and the county.

Unknown Speaker: Of course, there's another--

--The sheriff does not enforce county law.

I mean, the county doesn't make policy in the sense of enacting any ordinances which the sheriff enforces.

He enforces only State law.

Mr. Stevenson: That's true, Justice Scalia.

Unknown Speaker: And it doesn't make any policy in the sense of controlling his actions, either.

It can't give him any directions, can it?

Mr. Stevenson: No, that's right.

He is the final policymaker in this area.

Unknown Speaker: Can you give me an example of some policies that the sheriff in one county might make that a sheriff in another county might not?

Mr. Stevenson: Certainly.

The policies here.

A policy that would subject someone to racial threats and assaults.

A policy that would remove them from the county jail--

Unknown Speaker: Any other legitimate... give me some examples of some legitimate policies.

Mr. Stevenson: --Well, I mean, there are a whole range of legitimate policies.

They might have a procedure for arresting people who are charged with DUI that requires that they either do a--

Unknown Speaker: And this can vary from one county to another because the sheriff sets that policy?

Mr. Stevenson: --Yes, that's correct.

That's correct.

Unknown Speaker: Going back to the sense in which he speaks by and might perhaps... or speaks for and might be controlled by the county, the most important sense, I suppose, is that in which he is elected.

You've given a whole laundry list of sort of characteristics on the basis of which you say we should conclude that he's a county official.

Would you put the fact that he's elected by the voters at the top of the list?

Mr. Stevenson: Absolutely, Justice Souter, because that is the most meaningful control over this sheriff.

This sheriff engaged in this conduct and was reelected by the county.

That election says something about the county's approval, if you will, of his conduct, and we certainly believe that 1983 ought to play a role in deterring that.

Unknown Speaker: But even if there were no basis to say that they had approved--

Mr. Stevenson: That's correct.

Unknown Speaker: --they at least would have the power to disapprove.

Mr. Stevenson: Absolutely.

Unknown Speaker: And I suppose that's what we're getting at with imputed tort liability.

Mr. Stevenson: Absolutely.

Unknown Speaker: Can they disapprove?

They have no power to impeach him.

Mr. Stevenson: They have no power to--

Unknown Speaker: He's impeached by State officers, isn't he?

Mr. Stevenson: --Like--

Unknown Speaker: By the attorney general, or the legislature?

Mr. Stevenson: --That's correct, Justice Scalia, like--

Unknown Speaker: So they really have a... I mean, gee, the power just to elect somebody without the power to remove him--

Mr. Stevenson: --Well--

Unknown Speaker: --I don't know that that's real control.

Mr. Stevenson: --Well, I think that removal power is regulated every 4 years.

Unknown Speaker: Do they have to vote for him the next time?

Mr. Stevenson: No, they do not, and every 4 years they will have the opportunity to exercise that removal discretion.

I'd like if I can to reserve the rest of my time for rebuttal.

Unknown Speaker: Very well, Mr. Stevenson.

Mr. Smith, we'll hear from you.

Argument of Paul M. Smith

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

Our position is that an Alabama county cannot be held liable under section 1983 for the actions of the sheriff for two principal reasons.

First, the State constitution, as has been noted, expressly designates sheriffs as State officials, and follows up that designation by treating them as State officials for such purposes as the procedure for removal from office, and the absolute immunity that is only given to State constitutional officers, immunity from State tort liability.

Unknown Speaker: But you... I take it you accept the fact that it's ultimately a Federal question, not a State law question.

Mr. Smith: Well, this Court has held repeatedly that the identification of municipal policymakers turns on an analysis of State law.

Unknown Speaker: The identification of the policymakers does, but whether, in fact, the policy is to be imputed to the county, or to any municipal corporation, is a question of Federal law, is it not?

Mr. Smith: Well, I think it's kind of an intersection between State and Federal law.

You have a Federal statute that says we'll hold you liable under certain circumstances.

One of the circumstances is where the municipal... the government has enacted a policy, and then the court says, to determine whether it's a municipal policy we're going to look at State law to determine--

Unknown Speaker: No, I think we look to State law to find out who in fact has control over the policy.

Who is in fact the policymaker.

Mr. Smith: --Correct.

Unknown Speaker: We look to State law for that.

Mr. Smith: Right.

Unknown Speaker: But whether in fact, having identified the policymaker, the policymaker will be treated as a State official or as a municipal official of some sort, that is ultimately a question of Federal law, is it not?

Mr. Smith: Well, I'm not sure I understand the distinction.

It seems to me what you have to do is, you have a certain Federal standard that has to be met and then you match that up against a set of State requirements, or State structural features of the State government and you decide ultimately does the Federal law, does the statute that Congress passed in 1871, was it intended to impose liability under these circumstances?

Unknown Speaker: Right, but I think the distinction is simple.

We look to State law to find out who, in fact, under State law is setting policy.

Once we have found out who that person is, since there is a difference between State immunity and municipal liability under 1983, we then say, as a question of Federal law, is the person so identified a State officer or a municipal officer, and that latter question is one of Federal law, isn't it?

Mr. Smith: Your Honor, I really don't think you can answer that question without looking at State law to determine--

Unknown Speaker: Well, you have looked at... you mean State law binds the question whether for 1983 liability an individual is a State officer or a county officer?

I'm not talking here about whether it presents interesting evidence.

I'm asking whether it is dispositive, whether State law is dispositive on that question.

Mr. Smith: --Well, I guess--

Unknown Speaker: And I would have thought it clearly was not.

Mr. Smith: --If what you're asking is, can there be a situation where we would... where the Court would properly disregard a label that says he's a State official, based on other circumstances that are present such as the fact that he actually day-by-day works for the county commission and so therefore there's a concern that the State statute that designates him a State official is fictitious, I think under those circumstances that would be appropriate.

Because the two factors that I was going to outline at the beginning were 1) what the law says the scope of the municipal corporation is expressly, and 2) who does this official work for and is he... who is he controlled by, and I do think there are situations where if, in fact, the person is controlled by the governing body of the municipal corporation, that fact would be enough to make him a municipal policymaker regardless of the express statements of law.

Unknown Speaker: But the converse would not necessarily be true, would it?

Mr. Smith: Well, I think--

Unknown Speaker: If he is not controlled by in this case the county commissioners, it does not follow that he is not a county official for purposes of 1983 liability.

Mr. Smith: --That's true, too.

I think if it were true that he was expressly designated a county official by law, and the court determined that the State statute said this is the county policymaker for X area of governmental activity but we want him to be autonomous from this other governing body over here, I can imagine State law doing that, too, defining the--

Unknown Speaker: Suppose they said just the latter?

They said, we want him to be autonomous from the county governing body, but we're calling him what he is, a county officer that works within the county, not outside, but he's not in any sense answerable to the commission.

Mr. Smith: --Right.

Unknown Speaker: Okay.

Is he a final policymaker for the county for whom there is Monell liability?

Mr. Smith: If the Court were to determine that the State law establish the contours of the municipal corporation such that the corporation includes not only a governing body but another autonomous board or official who was supposed to be part of that municipal corporation, that you have a kind of hydra-headed corporation under State law, if the Court were to conclude that's what State law said, then yes, he would be a municipal policymaker.

So you can have a situation where autonomous boards or officials are within the scope of the municipal corporation because that's what the State decided to do, and it may be fairly frequent in big cities.

Unknown Speaker: So if this person were designated county officer, as I take it the coroner and tax assessor are, then you would not have any question about--

Mr. Smith: Well, I--

Unknown Speaker: --Monell liability.

Mr. Smith: --If you're asking about those specific individuals, I think that there's... there are... those are kind of border-line cases where there's indications that go both ways.

For example, the tax assessor works for the State as well as for the county, collects taxes for the State as well as for the county.

He's supervised very closely by the State, but you don't have anything like the express designation of a State official that we have here with the sheriff.

Unknown Speaker: All right.

Let's stay with the coroner then.

Mr. Smith: As to the coroner, he's elected in the county, and he's called a county coroner.

He performs inquest functions which kind of work with the State judiciary.

Unknown Speaker: Yes, but so... but you're saying that that officer would be considered a decisionmaker, final decisionmaker, although not responsible to the county commission, and there would be municipal liability or county liability.

Mr. Smith: My position, Justice Ginsburg, is that's certainly possible, that if the full analysis of the law about the coroner came to the conclusion that the State intended him to be a county officer making policy for the county, his autonomy from the county commission would not by itself preclude that conclusion that he is a--

Unknown Speaker: All right.

So he's not a... he has that autonomy.

Now, what else would we look to to determine whether he was a county officer?

Mr. Smith: --Well, you would look at what State law says about whether he's part of the municipal corporation or not, and here the State law's quite explicit on that subject and says not only is he autonomous from the county commission, but he is a State officer who is a member of the State executive department.

Unknown Speaker: Mr. Smith, your second point, as I understand it, was the label itself is not enough.

You couldn't just pass a statute calling somebody a State officer, as I understand you.

You look at actual control to have significance, and in this case if you ask about the day-to-day activities of the sheriff, not things that would justify impeachment or failure to reelect, but whether he assigns four officers to a district or two patrol cars and so forth, who controls him in that regard?

Mr. Smith: Well, with respect to his day-to-day activities, many of them are controlled by other State officials.

The one you mentioned about where he's going to put his patrol cars he's got a fair amount of discretion.

Unknown Speaker: The law officer's activites, assigning his a personnel to different tasks.

Mr. Smith: On those issues he's not supervised by anyone.

Unknown Speaker: He's the final authority on those issues.

Mr. Smith: Yes, but there are several things you should understand.

Much of his work is under the supervision of State officials, State prosecutors, the DA's are State officials, the judges--

Unknown Speaker: No, but I'm talking about assigning policemen to arrest people, and what part of the city to patrol, and how long hours they work and that sort of thing.

Mr. Smith: --Right.

Well, to the extent that he stays--

Unknown Speaker: He's the final authority on that.

Mr. Smith: --within the confines of what would be an impeachable offense in Alabama, he's got final say on that, sure.

Unknown Speaker: Yes, but I mean, within the confines of.

Isn't anyone ultimately within the supervision and control of whoever has power to remove him from office?

Mr. Smith: Yes.

Unknown Speaker: If the sheriff, for example, decides to have ho police cars, and the attorney general says, we have a whole county here that is not being policed, they have no police cars, wouldn't the attorney general tell the sheriff, get some police cars or you're out of there?

Mr. Smith: That's exactly what would happen, and then the Governor would say you--

Unknown Speaker: But again, you're assuming--

Mr. Smith: --I want a report on my desk in the morning about what you're doing.

Unknown Speaker: --He has to do something sufficiently serious to justify impeachment.

Mr. Smith: But the impeach--

Unknown Speaker: But just working 8 hours instead of 9 hours, or 7 hours instead of 6, that sort of thing he's the boss.

Mr. Smith: --But the list of grounds for impeachment, Justice Stevens, include incompetence, neglect of duty--

Unknown Speaker: Yes, but how often are these county officials impeached?

Very rarely, I assume, but they run their offices 8 hours a day, 7 days a week, 30 days a month, and they make hundreds and hundreds of decisions that are not supervised by anyone else.

Mr. Smith: --That's precisely... that's precisely why he's treated as a final policymaker, and that is the way government is set up in many places.

Unknown Speaker: All right, so if he's a final--

--So if you don't... I'm sorry.

Go ahead.

Going back to Justice Souter's question before, if that's the test of the... if the question is who can control him, I suppose the people who have the greatest power, just as Justice Souter mentioned before, to control the actions of the sheriff are the county voters, because if he doesn't do the right thing they won't elect him again.

And so if that's the test, why isn't he then a county official?

Indeed, any State official who is elected on a county basis would become for Monell purposes a county official.

Why not?

That's fairly clear.

People who pay the piper call the tune, and they're paid at a county level and he's elected at a county level--

Mr. Smith: Local election doesn't tell you anything about whether a particular official is part of a municipal corporation separate and apart from State government--

Unknown Speaker: --No, no, no, that's all quite right, but you'd say that the person... all we're interested in really is what hat is he wearing when he performs these actions?

Is he wearing his State hat, or his county hat, and there isn't much to tell us--

Mr. Smith: --But--

Unknown Speaker: --except for the fact that the county people elect him and they pay.

Mr. Smith: --But with respect, Justice Breyer, the reason that we have public liability under Monell is because there are separate corporate structures that exist, and so saying that he's locally elected and locally funded may be relevant to the question of whether he's a local official--

Unknown Speaker: He was a separate... I just think that probably Monell basically... well, different people... I don't know if we'll go into that in great depth, but basically you're trying to say the people, or at least where it's policy, whom you work for normally pay, but of course they don't if it's the State--

Mr. Smith: --Well, of course, they don't--

Unknown Speaker: --because there's sovereign immunity, so the real question is, should the sovereign immunity principle apply here, and you say why should it when they're elected at a county level.

Mr. Smith: --The reason that the State doesn't pay under 1983 is not sovereign immunity, Justice Breyer.

It's that the statute only imposes liability on persons, and the only reason there's liability on anybody other than the individual wrongdoer in any case is because municipal corporations are treated as persons.

In order to get there you have to look at whether or not we have a person here, which is--

Unknown Speaker: Well, we do.

He's the sheriff, and which hat is he wearing?

Mr. Smith: --Well, the sheriff is clearly being held liable.

The question is whether there's some other person that he is acting for when he acts, and that person, the county under State law has nothing to do with him.

He's not part of the corporate structure.

Unknown Speaker: No, but you're--

--Mr. Smith, I assume that the members of the Alabama legislature, are they elected locally?

Mr. Smith: Absolutely, Your Honor.

Unknown Speaker: And can they be removed from office by the local voters?

Mr. Smith: I believe it happens, yes.

Unknown Speaker: And are they considered local officers?

Mr. Smith: Well, under the rule of local election I suppose they would be.

Unknown Speaker: They would be.

Mr. Smith: But clearly one needs to look beyond that.

Unknown Speaker: I thought Justice Breyer said it was at least pay, local election and local pay which would distinguish your district attorney, a State judge, and your legislature, right?

Mr. Smith: Your Honor, it wouldn't distinguish the local district attorney and the local district judge.

They are elected locally, they work in a building that is paid for and operated by the county commission--

Unknown Speaker: Who pays their salary?

Mr. Smith: --and their salaries are supplemented routinely by county commissions.

Unknown Speaker: Supplemented.

Mr. Smith: Yes.

Not all of their salary, but part of their salary, so we're getting down to a fairly small--

Unknown Speaker: Well, let's take these two things: election plus full pay, not supplement.

Mr. Smith: --My position, Your Honor, would be that those factors tell you literally nothing about whether that official is inside the municipal corporation or outside the municipal corporation, because both of those things could exist and State law could still make it really clear that this is a State person who's answerable to the State and not part of the way they decided to set up their municipal corporation.

Counties are very narrow things in Alabama.

They have these specific functions.

They don't have home rule, and for purposes of State law the county commission and the county are really indistinguishable, so the notion that there's this sort of free-floating geography that includes everybody into a corporate structure--

Unknown Speaker: Is there any individual for whom a county in Alabama would have Monell liability other than a member of the county commission?

Mr. Smith: --Certainly.

There's a county administrator who's essentially there, keeps the paperwork flowing and deals with routine matters within the scope of the areas that are run by the county commission.

They run the road systems, a lot of different kinds of things that could be done by people who work for the county in the strict sense of the county commission.

Unknown Speaker: But only if they are executing, on your view, county commission policy, right?

Mr. Smith: Correct, yes.

Unknown Speaker: Okay.

Then let me amend my question and say, is there any person who makes final policy, which I take it the sheriff and the coroner would do in their realm, for whom a county in Alabama would be liable?

Mr. Smith: As I think I said earlier, it's possible that one could come to that conclusion about the coroner, depending on the overall analysis of whether or not the State intended to treat them as independent county officers.

I don't--

Unknown Speaker: I don't understand the intended, because we're not talking about a particular case.

We're talking about an office.

Mr. Smith: --Yes.

Unknown Speaker: I mean you would say that a member of the county commission, there would be liability, and you wouldn't look to depend on the particular case.

We have all the law that there is about coroners already on the books, so how do... I mean, you are very clear about how you type the sheriff.

Why shouldn't you be equally clear one way or another about how you type these other officers?

Mr. Smith: I think the law on the coroner is much less clear.

I mean, I think you have factors pointing in different directions.

You have autonomy, which is one of my factors, pointing in one way, and you have some laws which say he's a county official pointing another way.

Here, however, we have autonomy of an official expressing designated and consistently treated as a State official under State law, so the factors are pointing the same way.

Unknown Speaker: Well, you say he's consistently treated.

He's called that in some places.

Let me go back on the question of policy to an answer you gave earlier.

I think the hypothesis was, what if the sheriff doesn't want any patrol cars on the roads, and the attorney general comes along and says yes, you ought to have cars out there, or five cars out there, or what-not.

Was it your answer that the attorney general could make that policy decision and make it binding on the sheriff?

Mr. Smith: I do not think that the attorney general could call him up and order him to add an extra squad car to his patrol.

Unknown Speaker: Right, no--

Mr. Smith: Or patrol more carefully.

If he had decided to not carry out his law enforcement functions, which is what the question was, certainly that would be an impeachable offense.

The Governor... well, short of that--

Unknown Speaker: --Right.

It would not give policy control to anyone in particular.

It would simply mean that he was impeachable by whoever does impeachment in Alabama.

I forget who it is, but it would not follow from that that there was any policy control from the impeaching authority to the sheriff, or else we would be subject to the policy of the Senate.

Mr. Smith: --The reason I focus on the impeachment provision, Your Honor, is not because I think it makes the attorney general the policymaker, but because the law in the Constitution expressly differentiates between State and local officials on the kind of impeachment procedure that applies, and they centralize control in 1901 over sheriffs by making them impeachable only at the State level based on the attorney general's initiation.

Unknown Speaker: But one... one reason--

--Is there any reason why the impeaching official cannot warn the person who's subject to impeachment, unless you do something, I will impeach you?

Mr. Smith: Of course not, Your Honor.

Unknown Speaker: The Senate can't do that to us, presumably, but that has to do with the separation of powers.

Could the Senate do that to a senatorial... a congressional officer?

Mr. Smith: Sure.

Sure.

Here, though, because he's a State constitutional officer as well, the Governor has the authority to make him report on any of his activities, and the way the Constitution was set up in 1901, any false report that was made to the Governor is by itself automatically an impeachable offense, so that in practice what can happen much more easily than impeachment is that you get called on the carpet by the Governor and your misconduct or your misfeasance would then be publicized and the Governor has a fair amount of practical control over sheriffs.

Unknown Speaker: Oh, lots of influence, sure, but I take it... I'm sorry.

I take it it's still your position that the impeaching authority in Alabama is not the policy-setting authority over the operation of sheriffs' departments in Alabama counties.

Mr. Smith: No, I--

Unknown Speaker: That's not your position, is it?

Mr. Smith: --That's absolutely right.

I don't quarrel with the idea that he has a fair amount of discretion to make his own policies about how he's going to carry out--

Unknown Speaker: And nobody else does, so far as law enforcement policy by the sheriff's department for that county.

No one else has it, does he?

Mr. Smith: --Which is precisely why it would seem strange to me just to take a law which is supposed to have a much narrower rule of liability than respondeat superior and apply it in this context.

Unknown Speaker: Well, it is narrower in the sense that there has got to be a policy function condition met.

That is the sense in which it is narrower.

Mr. Smith: Yes.

Unknown Speaker: And that condition would be met if, in fact, the sheriff is the policymaker for that county.

But then you would have... I don't care whether you call it respondeat superior, call it imputed liability, whatever label you put on it, at that point 1983 says yes, the county may be held liable.

Mr. Smith: Sure, but the... what I'm saying is, State law doesn't say that, and--

Unknown Speaker: State law doesn't say that, but 1983 and Monell does.

Mr. Smith: --No, no, no, no, State law doesn't say that he is a county policymaker.

It says he's a State policymaker expressly, so--

Unknown Speaker: But nobody at the State level can control the policy.

Mr. Smith: --Well, that's because he's got delegated authority under State law, which is what defines a policymaker.

Unknown Speaker: Do you concede that--

Mr. Smith: The DA is a State policymaker, too, when he prosecutes somebody.

Lots of people have policymaking authority.

Unknown Speaker: --But everybody's authority under Alabama law, or I presume the law of any other State, is ultimately, if... is ultimately delegated by State law.

Mr. Smith: Sure.

Unknown Speaker: Counties have the authority that State law gives them.

Governors do.

Sheriffs do.

So the fact that there is ultimately a State law answer to who has the policymaking authority and what is its extent, that doesn't get you anywhere for Monell purposes, because that's a wash item.

That's going to be true everywhere, all the time.

Mr. Smith: But the aspect of State law I was referring to is saying that he's a member of--

Unknown Speaker: The content of State law.

Mr. Smith, let me be sure I got one point in mind.

You say because he's a state official he's implementing State policies when he decides how many patrol cars to put out and so forth, but that means, then, if I understand you, all 67 sheriffs have different policies within their own countries.

You have 67 different State policies because they're all State officials.

Mr. Smith: --Which is true with respect--

Unknown Speaker: And I suppose it's theoretically possible, but that's really the theory that all of these differing policies are all State policy.

Mr. Smith: --Well, all locally based State officials can... that have policymaking--

Unknown Speaker: Right.

Mr. Smith: --authority can set... within the confines of State law set certain policies.

Unknown Speaker: But really the State policy is that they've delegated the authority to the sheriff to do what he wants to do.

That's--

Mr. Smith: Well, that's what a locally based State official does.

He has discretion.

Unknown Speaker: --Is that... I mean, is there any sense in which there's a general State policy?

What I'm thinking is, if you have perhaps the State representative for city streets, the highway commission, State highway commission, there will be some official in each county who's in charge of highways, and I bet they have a certain amount of discretion, but I would imagine also they meet from time to time at the State level and there are more general State policies, too.

Is there anything like that here?

Mr. Smith: I'm not familiar with a particular thing where all the sheriffs come to Montgomery and meet about what they're going to focus on.

There is a certain amount of coordination that occurs.

For example, there are drug task forces that regionally occur, and sheriff's officials in fact do go outside their counties and work collectively in a particular region.

Unknown Speaker: Anything in the State capital, or any group of people at the State level who would feel that they have the responsibility, even at a highly general level, for coordinating the policies of the individual county sheriffs?

Mr. Smith: Well, you have the attorney general.

Unknown Speaker: Does he actually do something?

Mr. Smith: Well--

Unknown Speaker: Has he ever written a paper, or has he ever issued an order or a suggestion which says I think that the sheriffs in these counties should follow the following policy at a very general level?

Is there any document like that that's ever been written?

Mr. Smith: --I think you're exceeding my knowledge about how things work in practice in Alabama.

I do know, though, that the sheriffs work very closely with the istrict attorneys, which themselves work closely with the attorney general's office, and so there's going to be a certain de facto coordination.

You know, law enforcement can't be separated completely from prosecutorial activity in that those are State officials.

The district attorney is locally elected, partly locally funded, working in a county building, but they're State officials, so--

Unknown Speaker: Suppose a State, or a sheriff in the State of Alabama runs on a platform and he says he's going to have five different policies, one of which is going to be to interpret Federal constitutional rights at their narrowest when he's interrogating prisoners.

Certainly in a lay... and if the voters vote him in, certainly in a law sense, in a common sense use of the term, we could say this is the policy of the voters of that county, couldn't we not?

Mr. Smith: --You sure could, yes, but that wouldn't be the test that should be applied under Monell.

I mean, obviously, with any elected official, State or local, there's... you can make the argument that the voters are responsible for what they get, and they ought to be... ultimately have to pay for it, but that policy doesn't make any more sense at a local level than it does at a State level.

Unknown Speaker: Well--

--You could say the same thing, I suppose, about the local district attorney, or the local judges of the circuit that the county people vote for.

If they had a certain platform you could say that that was the county or the circuit's policy.

Mr. Smith: That's why I say, Mr. Chief Justice, that local election doesn't really move the ball down the field.

It doesn't tell you whether he's in the municipal corporation or not.

It may be statistically more likely.

Unknown Speaker: Mr. Smith, is there any purpose for which the sheriff ranks as a county officer?

Is there any capacity in which under Alabama law he counts as a county rather than a State officer?

Mr. Smith: Not that I can think of.

If you look at his other hats that he wears, it's much clearer in all of those contexts that he's a State official.

He takes direct supervision from the State circuit judge in the circuit.

He works directly with and for the State district attorney.

He supervises a jailer primarily by the State Department of Corrections.

Unknown Speaker: Are you saying he's all one or all the other, so there's no people who are sometimes county officers and sometimes State officers?

Mr. Smith: I'm saying that in this instance he's not.

It's possible one could set the law up that way, that people have two different functions and in one context they're supervised by the county commission over here and they're setting county policy, and in another context they're working with the judges over here and they're fully implementing State policy.

Unknown Speaker: Well, let's take the supervision out of it, because the one thing that we have to have is a final policymaker, otherwise there's no case here, right?

Mr. Smith: Sure, but that doesn't mean that the final policymaker has to be without anybody who could come in and check what they've done or supervise them.

I mean--

Unknown Speaker: But--

Mr. Smith: --Power is delegated by one body to another.

The second body can't still be a final policymaker.

It's relevant, I think, where the power comes from.

Unknown Speaker: --Yes, but you've already clarified, I think, that you don't have to have a policy... a commission over you in order to be a final decisionmaker for a county within Monell.

Mr. Smith: Yes.

If State law is express and clear enough that we're still going to treat them as part of one single municipal corporation, that's true.

Now--

Unknown Speaker: Mr. Smith, can you tell me again what are the... you say in some respects the sheriff... in some of his activities he is supervised by other State officers--

Mr. Smith: --Clearly... clearly--

Unknown Speaker: --and in none of his activities is he supervised by county officials.

Mr. Smith: --That's absolutely right.

Unknown Speaker: Which ones is he supervised by--

Mr. Smith: Well, he is... he serves process for the State judges.

He executes judgments, all of that.

There's a specific statute that says that general supervision for all of those State activities is with the State circuit judge and that clearly he's following orders from the State circuit judge or the State district judges in that capacity, and when he's working with the district attorneys, and once they get involved in the law enforcement activities, he's working for them as well.

So there is a fair amount of activity there, and the operations of the jail, the Department of Corrections has reports.

They come in, they inspect, that sort of thing, so there is all these different ways in which he intersects and is supervised by State officials.

In no respect, however, does the county commission have anything to do with what he does, other than having his obligation to give him money, and certainly the law is clear that that obligation can't be turned into leverage to control his activities.

If a county commission were to say we think you need to be putting more emphasis on drug policy in your law enforcement in this county, and we're not going to give you all your money till you do, there'd be an injunction in State court within hours.

It's just clearly grossly improper them to attempt to do that, and there's no indication that it's ever been done.

Unknown Speaker: --Mr. Blackburn, do I understand from your argument both on brief and here this morning that you think that the First Circuit in the Blackburn v. Snow case reached the wrong conclusion?

Mr. Smith: I do.

I think it was focusing on a county as a unit of geography and not as a municipal corporation and said, to the extent that he's elected by the county voters, we're going to treat him as a county official, and I think that test is both unjustified under the principles of Monell and proves far too much, because you have lots of locally elected State officials who under any theory, other than just looking at election, wouldn't be viewed as part of the municipal corporation.

Unknown Speaker: No, but you could have... I mean, not that I necessarily want to defend an opinion in which I was on the panel--

[Laughter]

Nonetheless, I guess in that, what I thought that that was involving is that you can't have a county official or a city official who is not responsible to anyone else in the city or county for the policy.

Mr. Smith: Yes.

Unknown Speaker: The question here is what hat is the sheriff wearing, his county hat, or a State hat, not whether there's some other person in the county government who might control his action.

Mr. Smith: Right.

Unknown Speaker: All right.

Then that being so, it's clear, isn't it, that the Eleventh Circuit's reasoning was wrong?

I mean, they were looking for somebody else in the county that had this policy, so one possible thing would be to tell them they're wrong and let them work it out.

Mr. Smith: Well, no, I--

Unknown Speaker: Is that right?

Mr. Smith: --No, I don't think that's right.

What they were looking at is whether or not, in exercising his discretion to enforce the law, he was acting for the county, and they said the county doesn't have anything to do with law enforcement.

Counties don't have the authority to--

Unknown Speaker: All right, but that wouldn't be the issue, whether county... the question is, did the sheriff have something to do with law enforcement?

Clearly he did.

Mr. Smith: --Yes.

Unknown Speaker: And then what hat is he wearing?

Mr. Smith: And it can't be a county hat if the county isn't... doesn't have any role in law enforcement.

That's what they were saying.

I mean, you could say it different ways and arrive at the same conclusion, which is to say, he's a State official by law.

He's got authority that's unrelated to the county commission's control.

When those two things point in the same direction, you come to the conclusion, I think, that this is not county policy.

Unknown Speaker: Well, Mr. Smith, if you're right and the sheriff in Alabama is purely a State official, then should the action have been dismissed against... insofar as it was brought against the sheriff--

Mr. Smith: Not as--

Unknown Speaker: --under 1983?

Mr. Smith: --In his individual capacity he certainly could be held liable if there's--

Unknown Speaker: But not in his official capacity--

Mr. Smith: --That's true.

Unknown Speaker: --is your position.

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

They only brought it against him in his official capacity on the theory that he was a county official, and I think the courts properly looked at the suit against the county and the suit against him in his official capacity as being essentially identical, because obviously you can't sue him in his official capacity to the extent he's a State official, because the Eleventh Amendment and the statute wouldn't authorize it.

Unknown Speaker: Does the--

--What about the insurance?

Mr. Stevenson mentioned when he was asked who would be liable for the ordinary torts, and he said he thought the county would under some insurance policy.

Mr. Smith: There is an insurance program which covers sheriffs for certain torts... not other torts, not intentionally torts.

There's a serious question here whether he would be covered, but I think the fact that the county, in addition to paying his salary and providing all of his equipment and everything else he uses, has also bought insurance for him doesn't by any means indicate that... doesn't have any great significance.

It doesn't make much difference one way or the other, in terms of indicating which hat he was wearing.

Unknown Speaker: But why would they do that?

Why would they buy the insurance?

Mr. Smith: Well--

Unknown Speaker: If they have no interest in law enforcement, why would they buy this insurance?

Mr. Smith: --Well, they... for the same reason they pay for his salary and all the other things they do.

They provide what he needs to get the law enforced in the county.

Unknown Speaker: But they're required to pay the salary.

Mr. Smith: They're required also to provide for his reasonable needs.

Thank you, Your Honor.

Unknown Speaker: Thank you, Mr. Smith.

Mr. Stevenson, you have 2 minutes remaining.

Rebuttal of Bryan A. Stevenson

Mr. Stevenson: I'd like to at least suggest that the Court not accept this notion that the sheriff is a State policymaker under the law that's been provided.

There are two provisions which point to the sheriff having some State identity, the constitutional provision, which we contend is a label and is at best ambiguous, because the label says, sheriff for the county, and then the State tort law judgments, which we contend are not relevant here.

The rest of Alabama law repeatedly refers to the sheriff as a county officer, and the Eleventh Circuit did not hold the sheriff makes policy for the State precisely because, as Justice Stevens suggests, that's kind of a difficult notion.

He is not like the Department of Public Safety employees who are subject to some State hierarchical command.

What the respondent then tries to say is, because there is this removal authority, somehow the State exercises control.

The removal authority in Alabama is applicable to all county, municipal, and State officials.

They can remove a mayor, a county commissioner, a city commissioner, and in that sense does not help us resolve this question.

The third thing is that we have identified in our brief at pages 23 and 24 all of the State law enforcement provisions that identify State law enforcement officers.

In those provisions the sheriff is never referenced, never included, which I think again gives good evidence as to why the sheriff is not a State policymaker.

And then finally, if we're not going to accept election and funding and status as a county official as the governing rationale, then the county commission's not a county official either, because their relationship to the county is also dependent on three factors.

They're elected, they're paid, and they're identified as county officials.

Nothing else in Alabama law makes them any more of a county representative than the sheriff, and in those respects we think it's not only appropriate but necessary to hold that county liable when its resources empower somebody like the sheriff here to engage in the kind of unconstitutional conduct against the petitioner that could not have happened but for those resources.

Mr. McMillian would not have spent 6 years on death row unless the county gave the sheriff the power to arrest, to stop, to withhold evidence, and to do the other things that violated his rights, and under those circumstances it's certainly our position that the Federal remedy ought not turn on the personal sovereignty of the wrongdoer.

It ought not turn on that, because that wrongdoer's conduct was not made possible solely by that wrongdoer's initiative or conduct.

Unless there are further questions, I'll rest.

Chief Justice Rehnquist: Thank you, Mr. Stevenson.

The case is submitted.