ANOTHER DAY HAS COME

(City of Saint Louis v. Praprotnik,
_ U.S. _, 108 S. Ct. 915, 99 L. Ed. 2d 107 (1988)).

Justice Sandra Day O'Connor is a trailblazer on the Supreme Court for a reason beyond the fact that she is the first woman to serve as a member of this distinguished body. Justice O'Connor is also one of a few justices that has state and municipal government experience in her background. One of her most recent opinions involving a very important state and local government issue once again shows her sensitivity to those issues and her understanding of the practicalities of governing in this litigious age.

In 1978, the Supreme Court announced its decision in the case of Monell v. New York City Department of Social Services, 436 U.S. 658,98 S.Ct.2018,56L.Ed.2d 611 (1978). In that decision, the Court held that municipalities and other bodies of local government are "persons" within the meaning of Section 1 of the Ku Klux Klan Act, otherwise known as 42 U.S.C. 1983 or just as "Section 1983." The Court also opined that this Section authorized suit "for constitutional deprivations visited pursuant to governmental 'custom' even though such a custom has not received formal approval through a body's official decision-making channels." Finally, the Court rejected the use of the doctrine of respondeat superior and concluded that municipalities could be held liable only when an injury was inflicted by a government's "lawmakers or by those whose edicts or acts may fairly be said to represent official policy."

Section 1 of the Ku Klux Klan Act of 1871 is better known as the Section which authorizes municipalities to be sued for civil rights violations. This statute provides that:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State .... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . ."

Numerous decisions of federal trial courts, appellate courts and the United States Supreme Court have led to a wide variety of circumstances in which Section 1983 is applied to impose liability on municipalities and state governments. However, one of the most troubling and expensive interpretations of this Section has resulted from the Monell decision and subsequent cases interpreting Monell. This continuing interpretation of Section 1983 and Monell centered upon the distinction between official policy of the governmental unit and individual actions of employees and officers of those units of government. Much of this interpretation was precipitated by the failure of the Monell court to fully outline the boundaries of its holding. According to Justice O'Connor in the Praprotnik opinion, "the Monell court left the 'full contours' of municipal liability under Section 1983 to be developed further on 'another day.'" Justice O'Connor by her plurality opinion in Praprotnik has caused another day to come. The opinion in this case represents a conscription of the Monell opinion to firm and certain boundaries, continuing a process that was begun by the Supreme Court in the case of Pembaur v. Cincinnati, 475 U.S. 478,106 S. Ct. 1297, (1986).

August 1988 / Illinois Municipal Review / Page 9

James H. Praprotnik is an architect who was formerly employed by the City of St. Louis, first in its Community Development Agency and later in its Heritage and Urban Design Division. The manner in which Praprotnik wound up working for the Heritage and Urban Design Division and the reasons for his placement there by city officials created the basis for this lawsuit. Praprotnik, as an employee of the Community Development Agency (CDA), had criticized a decision of the Mayor's office of the City of St. Louis in choosing to acquire a "rusting steel sculpture" for a community development project at a public meeting. It seems that Praprotnik's expression of his professional opinion at this meeting signaled the beginning of his difficulties that ultimately led to his layoff. After these comments, Praprotnik was given unfavorable performance ratings during merit reviews, was transferred from CDA to a lower paying job in the Heritage and Urban Design Division, and, ultimately, was laid off from employment shortly after being transferred to a job which his HUD supervisor had pronounced him as "grossly over-qualified" for. Although the City Civil Service Commission had granted Praprotnik relief from the adverse personnel reviews, Praprotnik had chosen not to challenge the transfer and layoff through available Civil Service Commission channels. Rather, he filed his lawsuit in the federal district court alleging that as a result of his comments to the HUD and his use of Civil Service Commission Appeal Procedures he had been transferred, demoted and laid off in violation of his right to free speech. A federal court jury ultimately found that the City of St. Louis, acting through Praprotnik's supervisors had deprived Praprotnik of his civil rights and awarded him damages for that injury. The United States Court of Appeals for the Eighth Circuit upheld the decision finding that the supervisors were acting according to a "custom" or "policy" of the municipality. The City of St. Louis appealed this decision to the United States Supreme Court which reversed the trial court and appellate court. The opinion of the United States Supreme Court, authored by Justice O'Connor, represents a limited retreat from the unbridled interpretations of Section 1983 and Monell in imposing liability on municipalities for the actions of their subordinate officials.

The broad range of actions which were permitted within the scope of Section 1983 and Monell is illustrated by two statements of Justice O'Connor. "We have assumed that an unconstitutional governmental policy could be inferred from a single decision taken by the highest officials responsible for setting policy in that area of the government's business." The lower limit of Section 1983 and Monell is illustrated by her statement that "we have held that an unjustified shooting by a police officer cannot, without more, be thought to result from official policy."

The Supreme Court, seeing that Monell was being

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broadly interpreted, began the process of restricting Monell in its opinion in the case of Pembaur v. Cincinnati. The Pembaur opinion set forth four "guiding principles" by which the actions of municipal officials were to be judged. Although a significant portion of the Praprotnik opinion is a repeat of the principles in Pembaur, Justice O'Connor, while reiterating those principles, has reinforced them in an effort to constrain broad application of Monell.

According to Justice O'Connor the four principles stated by Pembaur can be stated as follows:

"First,... municipalities may be held liable under s 1983 only for acts for which the municipality itself is actually responsible, 'that is, acts which the municipality has officially sanctioned or ordered.' Second, only those municipal officials who have 'final policymaking authority' may by their actions subject the government to s 1983 liability. Third, whether a particular official has 'final policymaking authority' is a question of state law. Fourth, the challenged action must have been taken pursuant to a policy adopted by the official or officials responsible under state law for making policy in that area of the city's business." (Citations omitted.)

The balance of the opinion is dedicated to fine-tuning these standards articulated in Pembaur and applying them to the facts in Praprotnik. However, the discussion of Justice O'Connor with respect to how the identity of policymaking officials is to be determined is the portion of the opinion that is of greatest interest to municipal officials and which represents the helpful portion of the opinion to those officials.

The second, third and fourth standards of Pembaur all contemplate that an action will be taken by a "policymaking" official of the municipality. But just who are those officials? This question is the one which has troubled federal courts and resulted in widely varying opinions as to who had the power to do what. In fact, the method by which the policymakers were identified varied from federal court to court. According to Justice O'Connor,

"[T]he identification of policymaking officials is not a question of federal law and it is not a question of fact in the usual sense . . . we can be confident that state law will always direct a court to some official or body that has the responsibility for making law or setting policy in any given area of a local government's business."

In a footnote, Justice O'Connor disclosed the depth of her understanding of municipal problems with the uncertainty of federal courts in this area by stating:

"Municipalities cannot be expected to predict how courts or juries will assess their 'actual power structures,' and this uncertainty could easily lead to results that would be hard in practice to distinguish from the results of a regime governed by the doctrine of respondeat superior."

August 1988 / Illinois Municipal Review / Page 11

According to Justice O'Connor, a federal court should not vary from the method of reviewing state law to determine where decision-making authority lies.

"[A] federal court would not be justified in assuming that municipal policymaking authority lies somewhere other than where the applicable law purports to put it. And certainly there can be no justification for giving a jury the discretion to determine which officials are high enough in the government that their actions can be said to represent a decision of the government itself."

The opinion of Justice O'Connor does not, however, operate in a vacuum which ignores the realities of governing. The opinion also recognizes that the ultimate decision-making authority of a unit of local government is often delegated to officials other than the governing body. The opinion points out that local governments cannot use the pronouncements of the opinion to insulate themselves from liability under Section 1983 by simply delegating away their policymaking authority. 'This recognition of attempts by municipalities to use less than honorable methods to insulate themselves from civil rights liability goes to the "custom" and "practice" language of Monell. Justice O'Connor neither discards nor overrules this aspect of Monell. Rather, the opinion reaffirms this doctrine within a narrower perspective.

"[W]hatever analysis is used to identify municipal policymakers, egregious attempts by local government to insulate themselves from liability for unconstitutional policies are precluded by a separate doctrine... the Court has long recognized that a plaintiff may be able to prove the existence of a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a 'custom or usage' with the force of law."

The narrowing of the principle occurs by Justice O'Connor's recognition that with respect to municipal policies, there is a final authoritative decision maker or decision-making body. Rather than allow this authority to be tunneled down to the official who has allegedly violated the civil rights of an individual the opinion states a set of standards by which these decisions should be judged.

"[T]he authority to make municipal policy is necessarily the authority to make final policy. When an official's discretionary decisions are constrained by policies not of that official's making, those policies, rather than the subordinate's departures from them, are the act of the municipality . . . when a subordinate's decision is subject to review by the municipality's authorized policymakers, they have retained the authority to measure the official's conduct for conformance with their policies." (Citations omitted.)

Applying these constraints to the Praprotnik factual situation, Justice O'Connor finds that the actions en-

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gaged in by the officials of the CDA and HUD were not the official policies of the municipality because they were neither promulgated nor approved by the ultimate decision makers, the Mayor and City Council of the City of St. Louis. Prior to this opinion, it would have been likely, if not certain, that the actions taken by these officials with respect to Mr. Praprotnik would have been found to have violated his civil rights when judged by these standards articulated in Monell. However, the constraints placed on Monell by Pembaur and Justice O'Connor in this opinion, caused the same set of facts to reach a directly opposite result.

In addition to the plurality opinion of Justice O'Connor, three justices filed a separate concurring opinion, authored by Justice Brennan, which asserted that no further fine-tuning of the Pembaur decision was necessary. Rather, they asserted that the decision in Pembaur was more than sufficient to resolve the case in favor of the City of St. Louis. Finally, Justice Paul Stephens dissented from the opinion suggesting that Justice O'Connor was using a "bulldozer" on the "developing contours of the landscape" of civil rights liability. The Justice felt strongly that Praprotnik's rights had been violated and that application of any standard which departed from Monell to reach an opposite result was incorrect.

What this opinion does not do is nearly as important as what it does do. It does provide municipal officials with a clearer standard by which they may judge their decisions which may affect the civil rights of employees or citizens. What it does not do is to remove protections granted to employees, citizens and others granted by Section 1983. These protections still exist with the same force and vigor as before the Praprotnik opinion. Now, however, the municipality knows and can predict how it will be judged with greater certainty. A municipality choosing to delegate unbridled policymaking authority to a subordinate will risk the possibility that the subordinate's action will subject the municipality to civil rights liability. However, the municipality is similarly assured that a subordinate decision maker whose decisions are reviewed by higher authority, perhaps including the Mayor and City Council of the municipality, will not be subjected to liability unless they either approve the actions of the subordinate or neglect to monitor, review and approve those decisions. •

September 1988 Municipal Calendar

This calendar is based upon the most current information,
court decisions and legislation of which the League has knowledge
as of the date of this publication. It supercedes similar information
contained in all other League publications.

September

The tax levy ordinance must be passed and a certified copy thereof filed with the county clerk on or before the second Tuesday in September. (Chapter 24, paragraph 8-3-1.)

Return of delinquent special assessments to be made five days prior to date for taking judgment. (Chapter 24, paragraph 9-2-85.)

Votes to be cast for trustee of the Illinois Municipal Retirement Fund. (Chapter 108 1/2, paragraph 7-175.)

August 1988 / Illinois Municipal Review / Page 13