InnerChange Litigation
David Waddilove
waddi at umich.edu
Tue Dec 4 14:40:37 PST 2007
But aren't prison guards who beat prisoners liable in their individual
capacities under ordinary tort law for battery? In general, aren't cases of
dual liability for the state and the individual tortfeasor always cases
where a cause of action would exist against the individual irrespective
of state action?
The trouble with the Establishment Clause is that there can be no liability
unless the action is done by the state. If it isn't the state that does it,
then it is likely to be some form of protected religious expression: There
certainly couldn't be any liability for preaching to prisoners by anyone
other than the state. It therefore wouldn't make sense to attach liability
to the state actor in its private capacity because this strips the cause of
action of an essential element.
I've been trying to think of an analogous situation where there would be no
cause of action against an individual where there would be against the
state. The closest I've come is a fourth amendment violation. Suppose for
example, an off duty policeman validly in one's home moves a peice of paper
to read what was on the paper underneath; it is a stretch to find tort
liability against him as an individual. (I suppose invasion of privacy very
well may supply a cause of action, but the claim might be frivolous.) But
if the policeman is on duty acting as a state actor, moving that peice of
paper and reading what is on the one underneath could very clearly
constitute a fourth amendment violation depending on the circumstances.
Yet, in that case, the policeman would always be given immunity in his
individual capacity for the 1983 tort he committed as a state actor, (not to
mention immunity for the invasion of privacy action against him in his
private capacity). Every other cause of action against the state seems
to have a corresponding private cause of action like the invasion of privacy
for moving the paper, or battery for beating the prisoner: A cause is action
is generated irrespective of the identity of the tortfeasor.
Can anyone else think of another cause of action against a state actor that
by definition has no corresponding cause against a private one? Have I
missed something?
David P. Waddilove
Adjunct Professor,
University of Arkansas William H. Bowen School of Law
PO Box 2060
Little Rock, AR 72203
(501) 324-6891
On Dec 4, 2007 3:13 PM, Ira (Chip) Lupu <iclupu at law.gwu.edu> wrote:
> Following up on Steve Green's answer, I would say that PFM was an agent of
> the state of Iowa in the administration of the faith-based program. If
> prison guards can be sued for their actions ( e.g., beating a prisoner)as
> state agents, why not PFM likewise?
>
> Most Establishment Clause cases do not involve money damages. But here
> the plaintiffs sought recoupment. An unusual remedy, to be sure, but on a
> theory that taxpayers have been wronged by the expenditure, forced
> recoupment puts the money back into the state treasury, even if the state
> hasn't asked for it. And naming PFM as a defendant is necessary if
> recoupment is among the remedies being sought. If all the plaintiff seeks is
> an injunction, suing only the official defendants makes sense (in the
> student prayer case, the offending students will be gone by the time the
> case is decided). Perhaps one could recover attorneys' fees against
> students who pray as "agents" of the school, but no plaintiffs' group is
> going to make that move -- it would seem cruel to recover the fees from
> students, who perhaps cannot be expected to know better, especially if they
> are being encouraged by school personnel (who can be expected to know
> better).
>
> ---- Original message ----
> >Date: Tue, 04 Dec 2007 14:44:26 -0600
> >From: "Christopher Lund" <Lund at mc.edu>
> >Subject: Re: InnerChange Litigation
> >To: <religionlaw at lists.ucla.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
> )
> > > 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)
> > >________________
> > >_______________________________________________
> > >To post, send message to Religionlaw at lists.ucla.edu
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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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> >________________
> >_______________________________________________
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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
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be viewed as
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> posted; people can read the Web archives; and list members can (rightly or
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>
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