Justia Federal District Court Opinions

Since Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971), it has been unlawful to convert a fine into a jail sentence for those who are unable to pay. Nor is there any constitutional requirement of a jury trial for offenses which do not have a potential jail sentence. Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970), and Argersinger v. Hamlin, 407 U.S. 25, 27-30, 92 S.Ct. 2006, 2008, 32 L.Ed.2d 530 (1972). Thus, unless plaintiffs are alleging that only they and members of their class were forced to pay for jury trials in this context, there has been no constitutional deprivation on this point

The term "creed" is used jointly or alternatively with "race" throughout the complaint but we fail to discern any basis for the use and the complaint seems bottomed only upon racial discrimination

28 U.S.C. Sec. 1343 reads as follows:

"The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:

(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States;

(4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote."

Under this section, there is no requirement that the amount in controversy exceeds $10,000. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 412 n. 1, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968).

Plaintiffs also invoked 28 U.S.C. Sec. 1331, which provides for federal question jurisdiction where the amount in controversy exceeds $10,000. Since there is doubt as to whether any of the claims for damages can be affirmed, we rest our finding of federal jurisdiction on 28 U.S.C. Sec. 1343.

C. Vann Woodward, The Strange Career of Jim Crow (2nd revised ed. 1966), 22

Id. at 23

"Mr. President, I regard the bill to which the attention of the Senate is now called as the most important measure that has been under its consideration since the adoption of the constitutional amendment abolishing slavery. That amendment declared that all persons in the United States should be free. This measure is intended to give effect to that declaration and secure to all persons within the United States practical freedom. There is very little importance in the general declaration of abstract truths and principles unless they can be carried into effect, unless the persons who are to be affected by them have some means of availing themselves of their benefits." Senator Trumbull, Cong.Globe, 39th Congress, 1st Sess., 474

Title 42 U.S.C. Sec. 1981 was reenacted with some additions after the ratification of the Fourteenth Amendment as the Civil Rights Act of May 31, 1870, ch. 114, Sec. 16, 16 Stat. 144. San Mateo County v. Southern Pacific R. Co., 13 F. 145, 151 (C.C.Cal.1882). Title 42 U.S.C. Sec. 1982 flows directly from the Civil Rights Act of 1866, via R.S. Sec. 1978

"Section 242 first came into the law as Sec. 2 of the Civil Rights Act, Act of April 9, 1866, 14 Stat. 27. After passage of the Fourteenth Amendment, this provision was re-enacted and amended by Secs. 17, 18, Act of May 31, 1870, 16 Stat. 140, 144." Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 482, 5 L.Ed.2d 492 (1961)

Mr. Cowan. "Then I will ask if that does not come in conflict with another principle of law-whether a judge in a criminal court can be held responsible for the integrity of his intentions as to the decisions he makes?"

Mr. Trumbull. "That would involve many considerations, and they will be settled by the courts when they arise. If he is not responsible, I have faith that the judges of the United States courts will so decide." Cong.Globe, 39th Cong., 1st Sess. (1866), 475-476.

Id. at 500

Id. at 1679-81

Id. at 1758

Id. at 1835

"Others supported the adoption of the [Fourteenth] Amendment in order to eliminate doubt as to the constitutional validity of the Civil Rights Act as applied to the States." Hurd v. Hodge, 334 U.S. 24, 32-33, 68 S.Ct. 847, 852, 92 L.Ed. 1187 (1948)

Section 18 of the Enforcement Act of 1870, was the portion which reenacted the previous Act:

"And be it further enacted, That the act to protect all persons in the United States in their civil rights, and furnish the means of their vindication passed April nine, eighteen hundred and sixtysix, is hereby re-enacted. . . ."

Cong.Globe, 41st Cong., 2nd Sess., 3611

42 U.S.C. Sec. 1983 derives from Sec. 1 of this Act and 42 U.S.C. Sec. 1985(3) from Sec. 2 of the Act

Cong.Globe, 42nd Cong., 1st Sess., 244

Mr. Lowe. "While murder is stalking abroad in disguise, while whippings and lynchings and banishment have been visited upon unoffending American citizens, the local administrations have been found inadequate or unwilling to apply the proper corrective. Combinations, darker than the night that hides them, conspiracies, wicked as the worst felons could devise, have gone unwhipped of justice. Immunity is given to crime, and the records of the public tribunals are searched in vain for any evidence of effective redress." Cong.Globe, 42nd Cong., 1st Sess., 374

Mr. Beatty. ". . . States have denied to persons within their jurisdiction the equal protection of the laws. . . . [M]en were murdered, houses were burned, women were outraged, men were scourged, and officers of the law shot down; and the State made no successful effort to bring the guilty to punishment or afford protection or redress to the outraged and innocent. The State from lack of power or inclination, practically denied the equal protection of the law to these persons." Id. at 428. (Emphasis added.)

Senator Osborn. "That the State courts in the several States have been unable to enforce the criminal laws of their respective States or to suppress the disorders existing, and in fact that the preservation of life and property in many sections of the country is beyond the power of the State government, is a sufficient reason why Congress should, so far as they have authority under the Constitution, enact the laws necessary for the protection of citizens of the United States. The question of the constitutional authority for the requisite legislation has been sufficiently discussed." Id. at 653.

Mr. Burchard. "If the State Legislature pass a law discriminating against any portion of its citizens, or if it fails to enact provisions equally applicable to every class for the protection of their person and property, it will be admitted that the State does not afford the equal protection. But if the statutes show no discrimination, yet in its judicial tribunals one class is unable to secure that enforcement of their rights and punishment for their infraction which is accorded to another, or if secret combinations of men are allowed by the Executive to band together to deprive one class of citizens of their legal rights without a proper effort to discover, detect, and punish the violations of law and order, the State has not afforded to all its citizens the equal protection of the laws." Cong. Globe, 42nd Cong., 1st Sess., App. 315

Mr. Hoar. "Now, it is an effectual denial by a State of the equal protection of the laws when any class of officers charged under the laws with their administration permanently and as a rule refuse to extend that protection. If every sheriff in South Carolina refuses to serve a writ for a colored man and those sheriffs are kept in office year after year by the people of South Carolina, and no verdict against them for their failure of duty can be obtained before a South Carolina jury, the State of South Carolina, through the class of officers who are its representatives to afford the equal protection of the laws to that class of citizens, has denied that protection. If the jurors of South Carolina constantly and as a rule refuse to do justice between man and man where the rights of a particular class of its citizens are concerned, and that State affords by its legislation no remedy, that is as much a denial to that class of citizens of the equal protection of the laws as if the State itself put on its statute-book a statute enacting that no verdict should be rendered in the courts of that State in favor of this class of citizens." Id. at 334.

Mr. Stevenson. "Denial may, therefore, be either active or passive. It is more frequently passive than active. That of Providence is nearly always passive; withholding, not giving, not granting is denying. . . . Unexecuted laws are not 'protection.' And this brings us to the very case: the States have laws providing for equal protection, but they do not, because either they will not or cannot, enforce them equally; and hence a class of citizens have not 'the protection of the laws."' Cong.Globe, 42nd Cong., 1st Sess., App. 300.

It should be noted that the discrimination with which Congress was concerned was not purely racial but also included that against that class of whites who had Union sympathies. Nevertheless, the discrimination was against classes of people and not just specific individuals

Cong.Globe, 42nd Cong., 1st Sess., 505

Mr. Pratt. "Though the laws do not in terms discriminate against them, still the fact is that they invoke their protection in vain in a great many localities, counties, and districts. There is either such a condition of public sentiment that they cannot be executed, or there is a complicity with their oppressors on the part of the officers who should, but do not, execute them

"Now, sir, is not this state of things a practical denial of the equal protection of the laws? One of the definitions of the verb 'deny' is 'not to afford; to withhold.' Now, can it with fairness be said this equal protection is not denied, when it is withheld, when it is not afforded? Is there not a positive duty imposed on the States by this language to see to it-not only that the laws are equal, affording protection to all alike, but that they are executed, enforced; that their protection is not withheld, but afforded affirmatively, positively, to all in equal degree." Cong. Globe, 42nd Cong., 1st Sess., 506.

"The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws." Ex parte Virginia, 100 U.S. 339, 347, 25 L.Ed. 676 (1879).

"[T]he remedy created was not a remedy against it [the Klan] or its members but against those who representing a State in some capacity were unable or unwilling to enforce a state law." Monroe v. Pape, 365 U.S. at 175-176, 81 S. Ct. at 478. (Emphasis in original.)

See also discussion of United States v. Classic, at note 25, infra.

Cong.Globe, 42nd Cong., 1st Sess., 334

In a different context, a class action by indigent plaintiffs challenged a city ordinance requiring a fee for issuance of an arrest warrant. The Fifth Circuit held that the complaint stated a cause of action:

"It is well to note in connection with this controversy that a citizen has no constitutional right to have an arrest warrant issued. The only constitutional right involved here is the citizen's ability to set in motion the governmental machinery which redresses violations of municipal ordinances; i. e., the right to seek an arrest warrant. Costs such as the fee in question here, no less than court costs, may be imposed but the teaching of Griffin v. Illinois, supra, is that concepts of equal protection in the administration of criminal law dictate that a poor person is not to be denied access to the criminal procedure process solely because of poverty." Lane v. Correll, 434 F.2d 598, 600 (5th Cir. 1970).

In Classic, the second count of the indictment charged the Commissioners of Election with a deprivation of constitutionally protected rights "by the willful failure and refusal of defendants to count the votes as cast. . . ." 313 U.S. at 309, 61 S.Ct. at 1034. Although the court did not pass on the sufficiency of the indictments because the appeal was a direct one following the district court's sustaining a demurrer, it is clear that plaintiffs' theory is not novel. See also Picking v. Pennsylvania R. Co., 151 F. 2d 240, 250 (3rd Cir. 1945), overruled on another issue, Bauers v. Heisel, 361 F.2d 581 (3rd Cir. 1966), cert. denied, 386 U.S. 1021, 87 S.Ct. 1367, 18 L.Ed. 2d 457 (1967); Whirl v. Kern, 407 F.2d 781 (5th Cir. 1968), cert. denied, 396 U.S. 901, 90 S.Ct. 210, 24 L.Ed.2d 177 (1969)

Concerning the election of 1876 and the Compromise of 1877, Samuel Eliot Morison wrote,

". . . when the first returns came in its seemed that he [Tilden] had won, but the votes of three Southern States and Oregon were doubtful, and without them Tilden had only 184 electoral votes; if the Republicans carried those four states, Hayes would have 185.

"From all four disputed states came two sets of electoral votes. In South Carolina, Florida, and Louisiana, still under carpetbag rule, the election boards had thrown out thousands of Democratic votes on the ground of fraud or intimidation. Congress met the problem by setting up an electoral commission. . . . [T]here seems no doubt that a deal was made by the Republicans with Southern Democratic leaders, by virtue of which, in return for their acquiescence in Hayes's election, they promised on his behalf to withdraw the garrison and to wink at non-enforcement of Amendment XV, guaranteeing civil rights to the freedmen." S. E. Morison, The Oxford History of the American People (1965), pp. 733-734.

"The long existence of African slavery in this country gave us very distinct notions of what it was, and what were its necessary incidents. Compulsory service of the slave for the benefit of the master, restraint of his movements except by the master's will, disability to hold property, to make contracts, to have a standing in court, to be a witness against a white person, and such like burdens and incapacities, were the inseparable incidents of the institution. Severer punishments for crimes were imposed on the slave than on free persons guilty of the same offences. Congress, as we have seen, by the civil rights bill of 1866, passed in view of the thirteenth amendment, before the fourteenth was adopted, undertook to wipe out these burdens and disabilities, the necessary incidents of slavery constituting its substance and visible form . . . ." In re Civil Rights Cases, 109 U.S. 3, 22, 3 S.Ct. 18, 29, 27 L.Ed. 835 (1883)

We need only note in passing that the decision was greeted with great relief in much of the national press. 2 Charles Warren, The Supreme Court in United States History (1926), p. 604 et seq. The test of time has cast the lie to Warren's hopeful analysis:

"Viewed in historical perspective now, however, there can be no question that the decisions in these cases were most fortunate. They largely eliminated from National politics the negro question. . . ." Id. at 608.

Plaintiff, an attorney, had sued to recover damages from the defendant, a justice of the Supreme Court of the District of Columbia, who had ordered Bradley's name stricken from the role of attorneys as a result of certain remarks Bradley had made to him during the trial of John Suratt for the murder of Abraham Lincoln. An earlier case to the same effect is Randall v. Brigham, 74 U.S. (7 Wall.) 523, 19 L.Ed. 285 (1868)

"For it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequence to himself. Liability to answer to every one who might feel himself aggrieved by the action of the judge, would be inconsistent with the possession of his freedom, and would destroy that independence without which no judiciary can be either respectable or useful." 80 U.S. at 347, 20 L.Ed. 646

"It was insisted during the argument on behalf of the petitioner that Congress cannot punish a State judge for his official acts; and it was assumed that Judge Cole, in selecting the jury as he did, was performing a judicial act. This assumption cannot be admitted. Whether the act done by him was judicial or not is to be determined by its character, and not by the character of the agent. Whether he was a county judge or not is of no importance. The duty of selecting jurors might as well have been committed to a private person as to one holding the office of a judge. . . . It is merely a ministerial act. . . ." 100 U.S. at 348, 25 L.Ed. 676

361 F.2d at 586 n. 7

This court has held a sitting judge liable for damages when he acted outside his duty. In Spires v. Bottorff, 317 F.2d 273 (7th Cir. 1963), an inmate of a state penitentiary sued a state judge alleging the judge, who had disqualified himself, had persuaded the warden of the penitentiary to try to prevent plaintiff from corresponding with the clerk of the state court regarding his previous conviction. The court held that these allegations stated a cause of action under the Civil Rights Act. Concerning the defense that, since the judge had disqualified himself, he was not acting "under color of state law," the court said,

"He did not, by disqualifying himself, become any less a judge and without the state authority he had, he could not have been as effective in interfering, as charged, with petitioner's right to an orderly and fair hearing. If the disqualification rendered him immune from overstepping his authority, 'the words "under color of any law" were hardly apt words to express the idea.' Screws v. United States, 325 U.S. 91, 111 [65 S.Ct. 1031, 89 L.Ed. 1495] (1944)." 317 F.2d at 274-275.

Subsequently on appeal to the County Court, a trial de novo was held as to one of the demonstrators and a directed verdict of acquittal was granted. The cases against the others were then dropped. 386 U.S. at 550, 87 S.Ct. 1213

"We do not believe that this settled principle of law was abolished by Sec. 1983, which makes liable 'every person' who under color of law deprives another person of his civil rights. The legislative record gives no clear indication that Congress meant to abolish wholesale all common-law immunities. Accordingly, this Court held in Tenney v. Brandhove, 341 U.S. 367 [, 71 S.Ct. 783, 95 L.Ed. 1019] (1951), that the immunity of legislators for acts within the legislative role was not abolished. The immunity of judges for acts within the judicial role is equally well established, and we presume that Congress would have specifically so provided had it wished to abolish the doctrine." 386 U.S. at 554-555, 87 S.Ct. at 1218

Brown v. Dunne, 409 F.2d 341 (7th Cir. 1969), and Jones v. Jones, 410 F.2d 365 (7th Cir. 1969), cert. denied, 396 U.S. 1013, 90 S.Ct. 547, 24 L.Ed.2d 505 (1970)

It should be noted that the court did not issue an injunction against Judge Hare, Solicitor McLeod, or Judge Reynolds at that time, due to the considerations of comity and the fact that "the other relief that is to be afforded in this case will make it unnecessary" (249 F. Supp. at 729) to enjoin them. However, jurisdiction was retained over those defendants and thus the holding of the case was that the district court could issue such an injunction

The only case which seems to reject this distinction is Arensman v. Brown, 430 F.2d 190 (7th Cir. 1970), which will be considered with those cases discussing prosecutorial immunity, since that was the specific context in which it arose

It should be noted that the Supreme Court in a recent construction of 42 U.S.C. Sec. 1985(3), Griffin v. Breckenridge, supra, 403 U.S. at 102, 91 S.Ct. at 1798, stated, "The constitutional shoals that would lie in the path of interpreting Sec. 1985(3) as a general federal tort law can be avoided by giving full effect to the congressional purpose-by requiring, as an element of the cause of action, the kind of invidiously discriminatory motivation stressed by the sponsors of the limiting amendment."

Similar difficult fact questions are placed before district judges in many different contexts, e. g., the proof of intent where it is appropriate to an offense charged. The fact that questions are difficult, and may require proof by inference, should not be a basis for dismissal

"A United States attorney, if not a judicial officer, is at least a quasi judicial officer, of the government. He exercises important judicial functions, and is engaged in the enforcement of the law. The reasons for granting immunity to judges, jurors, attorneys, and executive officers of the government apply to a public prosecutor in the performance of the duties which rest upon him." 12 F.2d at 404

The court did add the following comment:

"While we can understand from the facts set forth in plaintiff's complaint her outraged feeling resulting from the charged acts of the defendants, the rule enunciated in the foregoing cases is that, as a matter of public policy, such an injured person is without relief in a civil proceeding." 216 F.2d at 76-77.

Fanale v. Sheehy, 385 F.2d 866 (2nd Cir. 1967); Dacey v. New York County Lawyers' Association, 423 F.2d 188 (2nd Cir. 1969), cert. denied, 398 U.S. 929, 90 S.Ct. 1819, 26 L.Ed.2d 92 (1970); Bauers v. Heisel, supra; United States ex rel. Rauch v. Deutsch, 456 F.2d 1301 (3rd Cir. 1972); Guedry v. Ford, 431 F.2d 660 (5th Cir. 1970); Madison v. Gerstein, 440 F.2d 338 (5th Cir. 1971); Hurlburt v. Graham, 323 F.2d 723 (6th Cir. 1963); Rhodes v. Meyer, 334 F.2d 709 (8th Cir. 1964), cert. denied, 379 U.S. 915, 85 S.Ct. 263, 13 L.Ed.2d 186; Clark v. State of Washington, 366 F.2d 678 (9th Cir. 1966); Ney v. State of California, 439 F.2d 1285 (9th Cir. 1971); Kostal v. Stoner, 292 F.2d 492 (10th Cir. 1961), cert. denied, 369 U.S. 868, 82 S.Ct. 1032, 8 L.Ed.2d 87 (1962)

This section was amended effective August 24, 1971, by P.A. 77-1244, Sec. 1, but the change was immaterial, dealing only with form and so the citation is to the current law

For a case holding a judge liable for acts outside his judicial duties, see Spires v. Bottorff, 317 F.2d 273 (7th Cir. 1963), discussed above at n. 33

That the prosecutor's power is great was recognized over 40 years ago by the Wickersham Commission:

"The prosecutor [is] the real arbiter of what laws shall be enforced and against whom, while the attention of the public is drawn rather to the small percentage of offenders who go through the courts." National Commission on Law Observance and Enforcement: No. 4, Report on Prosecution, p. 19 (1931), quoted in Kaplan, The Prosecutorial Discretion-A Comment, 60 Nw.U.L. Rev. 174, 175 (1965).

Since Griffin v. Breckenridge, supra, overruled Collins v. Hardyman, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253 (1951)

See discussion of legislative history, supra, especially pp. 399-401

"A system of private prosecution can be justified in terms of both society's interest in increased law enforcement and the individual's interest in vindication of personal grievances. Full participation by the citizen as a private prosecutor is needed to cope with the serious threat to society posed by the district attorney's improper action and inaction. This rationale alone is adequate to support private prosecution." Comment, Private Prosecution: A Remedy for District Attorneys' Unwarranted Inaction, 65 Yale L.J. 209, 227 (1955)

Although private prosecutors may assist the State's attorney, the Illinois Supreme Court has stated "the State's attorney, as a public officer, must have the direction and assume the responsibility of the prosecution. It would be manifestly improper to permit counsel paid by private parties to supplant the constituted officer of the law and to assume the management of the case. . . ." Hayner v. People, 213 Ill. 142, 147, 72 N.E. 792, 794 (1904)

For examples of the way in which such proof might be made see Comment, supra, 61 Colum.L.Rev. at 1122-1131

E. g., Abrams, Internal Policy: Guiding the Exercise of Prosecutorial Discretion, 19 U.C.L.A.L.Rev. 1 (1971)

Id. at 45-49 discussing Regina v. Commissioner of Police ex rel. Blackburn, [1968] 1 Q.B. 118