InnerChange Litigation

Tue Dec 4 10:31:11 PST 2007

PFM was not a state actor just because it accepted the state's money to run this program; many private grantees take government money, and don't thereby become "state actors".  Ordinarily, private grantees are not even defendants in these sorts of cases; only state officials are sued.  But here PFM was effectively running a wing of the prison (general administrative responsibilities, including discipline).  The state cannot escape constitutional restrictions (8th A, 14th A, here the Establishment Clause) by delegating power to run prisons to private parties.

That delegation is what makes PFM a state actor, liable in the same ways as the state (and probably without any of the immunities).  And that's why (contrary to its press release) PFM can't keep running this particular program, even if no money changes hands between the state and PFM.

---- Original message ----
>Date: Tue, 04 Dec 2007 12:05:05 -0600
>From: "Christopher Lund" <Lund at mc.edu>  
>Subject: Re: InnerChange Litigation  
>To: <religionlaw at lists.ucla.edu>
>
>   There's one thing that I feel like I'm missing,
>   although (forgive me, moderator) it may be more of a
>   con law or remedies question than a First Amendment
>   question.  I understand that PFM is a "state actor,"
>   because its actions are attributable to the state
>   and the state is therefore responsible for PFM's
>   conduct.  But I don't really understand how PFM
>   could itself be liable here or how they could be
>   forced to pay money damages or enjoined.
>    
>   I mean, PFM can't itself violate the Establishment
>   Clause.  And when we say that PFM's acts are really
>   "attributable to the state," that just means that
>   they are also really Iowa's actions.  So Iowa could
>   be liable for them, could be forced to pay for them,
>   or could be enjoined from allowing them to continue
>   in the future.  But saying Iowa is responsible for
>   PFM's actions is completely different from saying
>   that PFM is responsible for Iowa's actions (which is
>   what I think what the Court is doing when it
>   makes PFM liable).  And I wonder if the Eighth
>   Circuit feels this way at least implicitly.  By
>   denying the reimbursement remedy, the Eighth Circuit
>   punishes Iowa, but lets InnerChange off the hook
>   with just a stern warning.
>    
>   Finally, if PFM here can be liable here (which would
>   be not only for damages but also things like
>   attorneys' fees), then doesn't that have
>   far-reaching consequences?  The student speaker in
>   Santa Fe v. Doe, the rabbi in Lee v. Weisman - are
>   they all really individually liable for money
>   damages and attorneys' fees?
>    
>   I just feel like there's something about the Court's
>   state-action jurisprudence that I'm not getting.
>    
>   Best,
>   Chris
>    
>   Christopher C. Lund
>   Assistant Professor of Law
>   Mississippi College School of Law
>   151 E. Griffith St.
>   Jackson, MS  39201
>   (601) 925-7141 (office)
>   (601) 925-7113 (fax)
>
>   >>> <marty.lederman at comcast.net> 12/4/2007 10:51 AM
>   >>>
>   Pretty devastating for the future of faith-intensive
>   prison programs of this kind.  But not unexpected,
>   of course -- there really wasn't much of an argument
>   on the other side.  (For my previous thoughts on the
>   case, see here
>   (http://balkin.blogspot.com/2006/04/blatantly-unconstitutional-federal.html)
>   and here
>   (http://balkin.blogspot.com/2006/06/trial-court-enjoins-unconstitutional.html).
>
>   The reversal on the reimbursement remedy is based on
>   the notion that although everyone knew damn well
>   this was illegal, they were well-motivated.  I'm
>   dubious about such logic, but I'm not surprised the
>   court reversed on the remedy -- the precedent set by
>   the decision itself is a sufficient deterrent to all
>   such programs going forward.
>
>   The most important aspect of the case is the holding
>   that the PFM was itself a state actor, given the
>   prison setting and the control they had over the
>   prisoners.  I've argued that this follows fairly
>   easily from West v. Atkins, but many were dubious. 
>   Thus, even if there were no state funding, as such,
>   such a program could not continue within the prison.
>
>   It might be a different story if a prison simply
>   allowed many outside groups to come into the prison
>   occasionally to lead rehab programs.  But that's a
>   far cry from these sorts of programs.
>
>   -------------- Original message
>   ----------------------
>   From: "Christopher Lund" <Lund at mc.edu>
>   > Attached is a copy of the opinion in Americans
>   United v. Prison
>   > Fellowship Ministries, which was issued
>   yesterday.  The Eighth Circuit
>   > affirmed the district court's finding of
>   unconstitutionality, but
>   > modified the injunction so that PFM now doesn't
>   have to pay back the
>   > $1.5 million it received from the state under its
>   contract before the
>   > finding of unconstitutionality.  Thoughts?
>   > 
>   >
>   http://www.ca8.uscourts.gov/opndir/07/12/062741P.pdf
>   > 
>   > 
>   > Christopher C. Lund
>   > Assistant Professor of Law
>   > Mississippi College School of Law
>   > 151 E. Griffith St.
>   > Jackson, MS  39201
>   > (601) 925-7141 (office)
>   > (601) 925-7113 (fax)
>________________
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Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law
George Washington University School of Law 
2000 H St., NW 
Washington, DC 20052
(202)994-7053