Proprosed Amendment to Sec. 1983

[Rob Weinberg]

At 02:16 PM 4/3/98 EST, Jim Henderson wrote:
>Realizing that anything I send to the list is likely to be posted only after
>an extensive wrangle, but not having enough sense to leave from places I am
>not wanted, I wade in undaunted.

Wade on in, Jim. The water's fine. Besides, I was a lifeguard in my younger
days. ;-)

>
>Rob Weinberg wrote:
>
><< Offhand I can't think of even one where an establishment clause claim even
>*sought* damages against state officials, despite Chicken Little histrionics
>to the contrary from the defendants being sued.  >>
>
>1.  Will the list participants "suggest" to Rob that he put up proof that
>"state officials" claim that "damages" have been sought in these cases?

At first I thought Jim was asking me to disprove a negative, i.e., to prove
that damages are not sought against state officials in EC cases. Reading
this a second time, I think Jim is agreeing with me that, in fact, damages
claims are routinely not (at all, in my memory) sought against state
officials.

If Jim is inviting me to prove that state officials have claimed they may
be subject to personal liability when the truth of the allegations in the
lawsuits are otherwise, I refer you to Judge Moore, and his supporters and
contributors, who have made just that claim as they solicit donations for
"the cause."

>
>2.  Will the list participants take time to consider that for most folks,
>including school board members, state employees, and state government
>officials, the difference between a $1, $5, or $10 nominal DAMAGE award,
and a
>$10,000, or $50,000, or $150,000 award of attorneys fees is not only real and
>substantial but scary and threatening?

The problem with that is threefold:

First, historically anyway, plaintiffs in these type cases don't even seek
damages. There's no historical reason for making such an exception.

Second, a nominal damage award of $1-5 will NOT result in an award of
attorneys fees under modern attorneys fee jurisprudence.  At one time it
did, but not today. Not without accompanying equitable relief.

Third, assuming damages are even claimed (and I think we're now all agreed
they're not), damages will only be awarded if liability is found after
qualified immunity has been denied. Qualified immunity protects all but the
"plainly incompetent and those who knowingly violate the law." _Malley v.
Briggs_. (I hate that quote.) In the kinds of cases we talk about on this
list, in order for liability to attach, a teacher would have to practically
strap a child to a chair and force a child to fast during Ramadan, or make
the child recite the Lord's Prayer after being enjoined not to before
qualified immunity would be denied. Again, no damages.

Therefore, no damages liability, no personal liability for attorneys fees.
Attorneys fees will only attach if injunctive relief is awarded, and then
only against the defendant in his/her official capacity. No personal
liability.

>
>If an Alabama state government official claims that (s)he has been sued and
>stands to lose thousands of dollars in the case, why is Rob's statement
>anything other than a dodge?

Where's the dodge? Judge Moore and his followers made just that claim
despite it's complete lack of foundation.  They make the claim but the
truth is otherwise. Moore stands to lose nothing, nor do the officials in
DeKalb County or Pike County when they are sued in their official capacity
for injunctive relief. So why are they claiming they are at risk? They're
not. The "chilling effect" of being sued and being exposed to personal
liability for fees in such cases is wholly illusory, speculative,
conjectural, irrational. There is thus no rational reason for the statute
on that basis.

******************
Rob Weinberg, Montgomery, AL
http://www.mindspring.com/~robertmw/