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COMMENTS
THOMAS W. KELTY, Chief Counsel, MORE NEWS FROM THE SUPREME COURT Last month, I discussed one of the major affirmative action decisions rendered by the United States Supreme Court during its most recent term. However, the Richmond decision was not the only decision of the Court in the area of Affirmative Action that has application and pertinence to municipalities; and, the Supreme Court has rendered other decisions this term that are of substantial importance in the area of municipal liability. This month another of the major affirmative action cases is discussed and a brief review of the municipal liability cases is provided.
Martin v. Wilks
A group of white firefighters sued the City of Birmingham, Alabama and the Jefferson County Personnel Board alleging that they were being denied promotions in favor of less qualified black firefighters. They claimed that the City and the Board were making promotion decisions on the basis of race and reliance on certain consent decrees, and that these decisions constituted impermissible racial discrimination in violation of the Constitution and Federal Statutes. The District Court held that the white firefighters were precluded from challenging employment decisions taken pursuant to the decrees, even though these firefighters had not been parties to the proceedings in which the decrees were entered. The decrees in question stemmed from litigation in which the NAACP and seven black individuals filed separate class action complaints against the City and the Board. The complaints alleged that both had engaged in racially discriminatory hiring and promotion practices in various public service jobs in violation of Title 7 of the Civil Rights Act of 1964, 32 U.S.C. Section 2000(e) et seq. and other Federal law. After a bench trial, but before judgment, the parties entered into two consent decrees, one between the black individuals and the City and the other between them and the Board. These proposed decrees set forth an extensive remedial scheme, including long-term and interim annual goals for the hiring of blacks as firefighters. The decrees also provided for goals for promotion of blacks within the department. On appeal, the Eleventh Circuit reversed. It held that "because the Wilks respondents were neither parties nor privies to the consent decrees, their independent claims of unlawful discrimination are not precluded." The Court explicitly rejected the doctrine of impermissible collateral attack and although it recognized a "strong public policy in favor of voluntary affirmative action plans," the panel acknowledged that this interest "must yield to the policy against requiring third parties to submit to bargains in which their interests were either ignored or sacrificed." The Supreme Court granted certiorari and affirmed the Eleventh Circuit's judgment. In deciding that the respondents were not precluded from challenging the employment decisions taken pursuant to the consent decrees, the Court reasoned that "one is not bound by a judgment in personam in litigation in which he is not designated as a party or in which he has not been made a party by service of process." With respect to an argument that the Congressional policy favoring involuntary of employment discrimination claims supported the "impermissible collateral attack" doctrine, the Court stated that a voluntary settlement in the form of a consent decree between one group of employees and their employer could not possibly "settle" voluntarily or otherwise the conflicting claims of another group of employees who do not join in the agreement. Clearly the message of the Court in rendering this decision is that all parties affected or potentially effected by a decision in an employment discrimination action must be brought into the lawsuit. If they are not, the municipality trying to resolve such a suit may find itself defending another suit from the class of individuals that were allegedly favored. In other words, a discrimination suit must have all parties involved as a part of the action. Even those employees who have not alleged discrimination are affected by the action and by the decision. Therefore, to avoid causing a discriminatory effect, all parties' interests must be litigated at the same time. * * * The second area of interest to municipalities that has emerged from the Supreme Court this term is the limitation of municipal liability. Three cases decided this August 1989 / Illinois Municipal Review / Page 17 term have limited, but not eliminated, municipal liability in certain areas. These cases are factually different, in fact, at first glance they appear unrelated except for the fact that they were all filed pursuant to the principal federal statute that imposes liability on local governments for acts that allegedly deprive citizens of constitutional rights, 42 U.S.C. 1983. However, a closer inspection reveals the underlying theme of the Court in limiting municipal liability. As discussed in previous editions of this column, 42 U.S.C. 1983 can impose liability for state actions that result in a deprivation of any civil right, privilege or immunity guaranteed by the Constitution. These cases take many forms and are feared by municipal officials and their counsel for three principal reasons. First, although thousands of cases have been litigated under this section, the state of the law governing these actions is continually undergoing subtle shifts that make outcomes difficult to predict. Second, when liability is found, the judgments against municipalities and their officials can be severe. And, third, the financial burden that can be imposed is compounded by two factors: the high cost of defending 1983 actions and the potential award of attorney's fees to plaintiffs' counsel if liability is found. These latter cost factors exist because of the complexity and length of 1983 cases. Although these decisions of the Court do not decrease the cost of 1983 actions, they do help to clarify the law underlying these actions. These cases all involve injuries to persons that allegedly resulted or were aggravated by actions of the state, a municipality or its employees. In De Shaney v. Winnebago County Department of Social Services, __U.S. __, 109 S.Ct. 948, 103 L.Ed.2d 249 (1989), the mother of a young child who was the victim of child abuse by his father filed suit alleging that the boy's civil rights had been deprived by the failure of the defendants to take action to prevent further abuse by the father. In City of Canton, Ohio v. Harris, __ U.S. __, 104 S.Ct. 1197, 103 L.Ed.2d 412 (1989), Harris alleged that her rights had been deprived as a result of the failure of police to summons medical aid for her after she was injured while in the custody of the Canton police. And, in Brower v. Inyo County, __ U.S. __, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989), a high speed chase by police officers resulting in the death of the fleeing driver was the basis for a 1983 action alleging an unreasonable search and seizure by the police. From these disparate factual situations come a simple principle: States and municipalities are not liable for all actions that result in injury, they are only liable for those actions which are particularly egregious and are actually the result of actions of the governmental body. The holding of these cases illustrate this idea. In De Shaney, the Court held that the defendants had no duty to protect the child from private violence. De Shaney alleged that the injuries were a violation of his right not to be deprived of life, liberty and property without due process of law. However, the court read the due process clause of the fifth amendment as a limitation on state action not as an affirmative obligation to provide certain minimal protections against harm from actors other than the state. This holding has the effect of forestalling actions in which the state does not cause the harm and does not act to prevent further harm. In Canton, the Court rejected the theory that all inadequate training of police officers is actionable under 1983. Rather, the Court enunciated the "deliberate indifference" test. That test requires a plaintiff to show that in a relevant respect, the failure to train or the inadequacy of training amounts to a deliberate indifference to the constitutional rights of those persons with whom the police come into contact. This holding like De Shaney limits municipal liability to those actions which are directly connected to the alleged deprival of civil rights. Finally, in Brower, the Court held that a search and seizure must be unreasonable to be actionable under 1983. Again, the threshhold level of liability was raised by the Court in those actions which are based on a duty found in the Constitution and not a lower standard. Although the Court remanded this case to permit the plaintiffs the opportunity to prove that the search was unreasonable, the message of the Court is clear: the plaintiffs must show that the acts complained of were designed to deprive him of a civil right. It is not enough to show that the circumstances resulted in the death. Each of these three cases raises the threshhold of liability. This does not mean that municipal officials can be less vigilant in the protection of the civil rights of citizens. It does mean that good faith efforts to protect the rights and well being of citizens pursuant to constitutionally imposed duties will not result in municipal liability. The application of these cases to municipalities in Illinois and elsewhere should give some measure of security to those officers charged with governing that their actions, unless deliberately indifferent, will be safe from liability. •
Page 18 / Illinois Municipal Review / August 1989 |
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