InnerChange Litigation
Christopher Lund
lund at mc.edu
Tue Dec 4 21:45:20 PST 2007
The points by Profesors Lupu, Green & Lederman make a lot of sense, and
I'll check out Brentwood Academy, which sounds helpful. Maybe it's just
recoupment here that I have trouble understanding. Recoupment seems to
have little value here except as a way of punishing PFM. Recoupment
means that PFM now has to pay Iowa for the constitutional violation they
committed together. I don't think that makes much sense. Maybe PFM is
as culpable as Iowa -- but is there really an argument that PFM is more
culpable, that the Establishment Clause applies more to PFM than it does
to Iowa? By virtue of the taxpayer theory, Iowa suddenly gets to flip
sides in the litigation. It doesn't have to pay the plaintiffs. It
instead gets to become the plaintiffs and take PFM's money back on their
alleged behalf.
Now I understand the theory -- that the injury was taxpayer dollars
going to PFM, that the remedy, if there is to be one, means the money
has to go back, and that Iowa this time could spend it on something
constitutional. But it seems like the remedy of recoupment means we've
moved full circle from (1) Iowa being responsible, to (2) Iowa and PFM
being jointly responsible, to (3) PFM being chiefly (or even solely)
responsible. Maybe I'm missing something, but I find this problematic.
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 12/04/07 3:13 PM >>>
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)
> >________________
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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
> _______________________________________________
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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
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