InnerChange Litigation
Douglas Laycock
laycockd at umich.edu
Tue Dec 4 13:14:15 PST 2007
I don't think Chris is missing anything big. The liability of the
private citizen who becomes a state actor is a liability that has not
been pushed very far, and so its sometimes troubling implications have
not been explored.
I'm on the road and don't have my casebook handy, so this e-mail
will be citation free, but there are cases where this issue comes
up. There's a Supreme Court case (Dennis v. Sparks I think, but I
might have be importing part of the name from Stump v. Sparkman,
another judicial immunity case) where litigants conspired with a
judge to rig a case. The Court said the judge was absolutely immune,
but his participation made all the conspirators state actors, and the
case could proceed against them in federal court under §1983.
There are starting to be cases about privately operated prisons
that are producing odd results; one of them was the moot court
problem at Michigan last year. There are cases of private citizens
who excercise coercive power under a state law later held
unconstitutional. The Supreme Court said these private-citizen state
actors don't get the qualified immunity of Harlow v. Fitzgerald, but
there are lower court decisions crafting an immunity that actually
looks somewhat more protective than what public officials get.
Some of these defendants look culpable and deserving of damage
liability. Others do not; certainly not the students who voted for a
prayer in Santa Fe, or the rabbi who gave the prayer in Lee v.
Weisman. Of course in those cases the likely damage award would be
trivial anyway, but fees could be very large.
My guess is that if plaintiffs push on this line, at least the
current generation of courts will wind up giving private defendants
who become state actors a pretty broad immunity bath.
Quoting Christopher Lund <Lund at mc.edu>:
> Maybe I can explain what I'm missing a bit better. You say, "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)."
>
> I have no question about the first part of this (up until the part
> I've boldfaced). Iowa cannot escape its constitutional obligations
> by getting PFM to run its prisons. The state is accountable for
what
> PFM does * that's what we mean when say PFM is a state actor, when
we
> say that PFM's actions are "attributable to the state." And
because
> Iowa is responsible for what PFM does, PFM's religious programming
is
> the state's religious programming, and the state having this sort
of
> religious programming violates the Establishment Clause under
> Mitchell v. Helms and the rest.
>
> But while this explains why Iowa should be liable (for both its own
> actions and for PFM's), it does not explain or justify why PFM
itself
> should be liable. I get that PFM's actions are "attributable to
the
> state." That's what PFM being a "state actor" means. But why is
the
> state's constitutional duty attributable to PFM?
>
> I am definitely open to the possibility that I'm missing something
big.
>
> 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)
>
>>>> iclupu at law.gwu.edu 12/4/2007 12:31 PM >>>
>
> 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[1])
>> and here
>>
>>
(http://balkin.blogspot.com/2006/06/trial-court-enjoins-unconstitutional.html[2]).
>>
>> 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[3]
>> >
>> >
>> > 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
> _______________________________________________
> To post, send message to Religionlaw at lists.ucla.edu
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>
>
Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI 48109-1215
734-647-9713
Links:
------
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[2]
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[3]
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