Nahmod Law

The Second Circuit Rules That Contracts Clause Violations Are Actionable Under Section 1983

The Contracts Clause

The Contracts Clause, U.S. Const. Art I, § 10, provides: “No State shall … pass any … Law Impairing the Obligation of Contracts.”

The Supreme Court has developed a three-part Contracts Clause test: (1) does the state law operate as a substantial impairment of the contractual relationship; (2) if so, does the state have a significant, legitimate public purpose behind the regulation; and (3), if so, is the adjustment of the rights and responsibilities of the contracting parties based on reasonable conditions and is it appropriate to the public purposes justifying the state regulation? See, generally, Energy Reserves Group, Inc. v. Kansas Power and Light Co., 459 U.S. 400 (1983).

As I noted in previous posts, there is a split in the circuits on whether Contracts Clause violations are actionable under section 1983. See https://nahmodlaw.com/2021/09/14/the-third-circuit-punts-on-whether-contracts-clause-violations-are-actionable-under-section-1983/

The Second Circuit has now joined those circuits–the Seventh and Ninth–ruling that the answer is yes. (The Fourth and Sixth Circuits have ruled the other way).

The Melendez Decision

In Melendez v. City of New York, 16 F.4th 992 (2nd Cir. 2021), the plaintiff landlords sued a city and city officials under section 1983 for prospective relief alleging, among other claims, violations of the Contracts Clause arising out of the city’s enactment during the Covid-19 pandemic of the Guaranty Law (the “Law”) rendering permanently unenforceable personal liability guarantees of commercial lease obligations arising between March 7, 2020 and June 30, 2021.

Reversing the district court, the Second Circuit ruled in a thoughtful and lengthy opinion evaluating Supreme Court precedent that this claim was improperly dismissed. It agreed with the district court that the Law substantially impaired plaintiffs’ commercial leases but disagreed that the Law was appropriate and reasonable to advance a significant and legitimate public purpose. Among other considerations, the Law did not merely defer guaranty obligations but permanently and entirely extinguished them. In addition, the Law did not “condition the relief it affords on guarantors owning shuttered businesses or, even if they do, on their ever reopening those businesses.” .

Judge Carney concurred in the result in part and dissented in part in an equally thoughtful and lengthy opinion, disagreeing with the majority on the Contracts Clause claim and arguing for a more deferential standard.

Comment

As I have argued, the better view is that Contracts Clause violations are indeed actionable under section 1983.

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November 3, 2022 at 9:24 am

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Bill of Attainder Violations and Section 1983

By its terms, section 1983 creates damages and prospective relief remedies for deprivations by state and local government officials, and by local governments themselves, of rights, privileges and immunities secured by the Constitution and laws. But what constitutional violations are covered?

It might be thought that, inasmuch as section 1983 was enacted in 1871 by Congress under its Fourteenth Amendment section 5 powers, only violations of the Fourteenth Amendment (equal protection and due process) and incorporated provisions (the First, Second, Fourth, Fifth, Sixth and Eighth Amendments) of the Bill of Rights are covered. However, that turns out not to be the case.

Violations of Article I, §10, prohibiting Bills of Attainder, may also be actionable. See Zilich v. Longo, 34 F.3d 359 (6th Cir. 1994), where the plaintiff, a former city council member, sued a mayor and other officials under section 1983, alleging that a city council resolution denouncing him was, among other things, a Bill of Attainder prohibited by Article I, §10 of the Constitution. After canvassing Supreme Court case law which set out the three elements of a Bill of Attainder–specificity, punishment and lack of a judicial trial–the Sixth Circuit found that the element of punishment was missing. All the ordinance did was authorize the law director of the city to go to court to seek recovery of amounts considered illegally obtained by the plaintiff. There was no confiscation of plaintiff’s property. The fact that the resolution criticized the plaintiff by name and accused him of improper behavior was not sufficient. “Plaintiff has not cited, and our research has not disclosed, a single case in which a court has held that judging a member’s qualifications constitutes a bill of attainder.” 34 F.3d at 362. The court thus reversed the district court’s denial of summary judgment to the defendants on this issue.

Compare, though, Reynolds v. Quiros, 990 F.3d 286 (2nd Cir. 2021), where the plaintiff state prisoner, who was serving a life sentence for murder, sought prospective relief under section 1983 against corrections officials. He alleged, among other claims, that they violated Article I, §10 through his placement in a special circumstances unit pursuant to a Connecticut statute governing his conditions of confinement that was enacted after his offense, trial and conviction. The Second Circuit did not expressly address the question whether Bill of Attainder violations are actionable under section 1983 but assumed that they were and went on to affirm the district court’s grant of prospective relief. It found that the defendants’ challenged conduct per the Connecticut statute satisfied the requirements of an unconstitutional Bill of Attainder: specification of the affected persons, punishment and the lack of a judicial trial.

Comment

Not only may Bill of Attainder violations be actionable under section 1983, but so too may violations of the Ex Post Facto Clause and the Contracts Clause. See Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 sec. 3:3 (2022-23 Edition)(West/Westlaw).

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October 13, 2022 at 9:37 am

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Three Scholars Discuss Government Funding and Church-State Separation after Carson (Video)

The Decalogue Society of Chicago invited Professors Nicole Garnett of Notre Dame Law School, Michael Helfand of Pepperdine Law School and me to speak about government funding and church-state separation in light of the Supreme Court’s June 2022 decision in Carson v. Makin.

This on-line program, held on September 20, 2022, went for a little over two hours. I spoke first about the Religion Clauses in general, including their history and purposes, and what some of the Founders thought. Professor Garnett spoke next about the complicated relationship between the Establishment and Free Exercise Clauses. She was then followed by Professor Helfand, who spoke about government funding and the Carson case. Each of us spoke for about one-half hour, and there was a question-answer period after that.

Spoiler alert: during the question-answer period, I took a strong strict-separation position and criticized the current Supreme Court majority in several respects. First, in disregarding the historical evidence of the dangers of blurring the lines between government and religion and, consequently, thinking that religious “wars” cannot happen here. And second, in naively (disingenuously?) considering itself “objective” in its Religion Clause decisions and thereby disregarding the “passive” virtue of judicial restraint.

Below is the link. I hope you find the program informative and useful.

https://fb.watch/fHg2w8RUAU/

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October 13, 2022 at 9:02 am

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Off-Duty Police and State Action/Color of Law

Police officers when on the job and exercising government power are state actors subject to the Fourteenth Amendment and incorporated constitutional provisions, including the Fourth Amendment.

(I discuss extensively the various state action tests and Supreme Court and circuit decisions in Ch. 2 of my Treatise, Civil Rights & Civil Liberties Litigation: The Law of Section 1983 (2022-23 Ed.)(West/Westlaw).

But what happens when police officers are off-duty and they engage in conduct that would clearly be unconstitutional if they were on-duty? Or to put this another way, when do police officers who are ordinarily state actors lose that status and no longer act “under color of law” for section 1983 purposes? I call this the “converse” of the typical state action question.

Consider in this connection a 2021 decision of the Fifth Circuit, Gomez v. Galman, 18 f.4th 769 (5th Cir. 2021)(per curiam). In this case, two off-duty New Orleans police officers drinking in a bar allegedly harassed and beat the plaintiff unconscious. Reversing the district court which had dismissed the complaint, the Fifth Circuit ruled that the plaintiff adequately alleged that the officers acted under color of law. It applied its “nexus” test in reaching this conclusion: “to determine whether an officer acted under color of law, we must consider: (1) ‘whether the officer misused or abused his official power’ and (2) ‘if there is a nexus between the victim, the improper conduct, and the officer’s performance of official duties.’ Bustos v. Martini Club, Inc., 599 F.3d 458, 464–65 (5th Cir. 2010).”

According to the Fifth Circuit, even though the officers were off-duty and in a bar drinking, they used their authority as police officers when one of them gave the plaintiff a direct order to stop and not leave the bar’s patio area, which he obeyed. Then, when plaintiff attempted to drive away after he was beaten, both officers ordered him to stop and get out of his car, which plaintiff did. Also, the officers acted as if the plaintiff was being arrested, they called for backup and they had identified themselves as police officers. For these reasons, there was a sufficient nexus alleged for state action/color of law purposes.

Judge Ho concurred, explaining why this was not an easy state action case:

“As a strictly doctrinal matter, this is a close case. Gomez alleges that he believed his assailants were police officers, and that for that reason, he complied with their orders, rather than flee to avoid further injury. But he never explains why he believed the defendants were police officers. He does not allege that they wore uniforms, displayed their badges, or otherwise presented themselves to him as police officers. And it is not Gomez’s subjective beliefs, but the officers’ conduct, that determines whether the defendants acted “under color of [state law]” as required under 42 U.S.C. § 1983. … So I can see how the district court might have concluded that this case cannot proceed under § 1983.”

Judge Ho thus questioned the relevance of a plaintiff’s subjective beliefs for state action purposes but went on to point out that in this case the fact that the officers later called for backup was objective evidence that state action was present. He also observed that the alleged acts of the officers were “contemptible.”

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September 13, 2022 at 10:21 am

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Additions to List of 2021 Term Section 1983-Related Supreme Court Decisions

After I posted earlier, I realized that I had inadvertently omitted two per curiam excessive force decisions from the 2021 Term in which the Supreme Court ruled in favor of granting qualified immunity to law enforcement officers. So below is the corrected list, with my apologies.

Supreme Court Decisions in the 2021 Term

  • Kennedy v. Bremerton School Dist: Free Exercise Clause protection for public on-field prayer of high school football coach (see §3:15)
  • Carson v. Makin: Maine prohibition of tuition assistance for parents of school children attending private religious schools in school districts without public high schools violates Free Exercise Clause (see §3:15)
  • New York State Rifle & Pistol Assn. v. Bruen: New York statute requiring anyone seeking a license for concealed carry of handgun to show “proper cause” violates Second Amendment (see §3:16)
  • Vega v. Tekoh: Miranda violations standing alone not actionable under §1983 (see §3:25)
  • Dobbs v. Jackson Women’s Health Organization: overruling Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey (see §§3:37, 3:52 and 3:78)
  • Thompson v. Clark: §1983 Fourth Amendment malicious prosecution and meaning of favorable termination (see §§3:66, 3:67, 9:30, 9:58 and 9:64)
  • City of Tahlequah v. Bond: per curiam excessive force qualified immunity decision in favor of law enforcement (see §8:63)
  • RivaVillegas v. Cortesluna: per curiam excessive force qualified immunity decision in favor of law enforcement (see §8:63)
  • Nance v. Commissioner, Georgia Dept. of Corrections: injunctive relief challenge to method of execution as §1983 claim and not habeas corpus (see §§9:57 and 9:64)

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August 16, 2022 at 5:56 pm

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A Short List of 2021 Term Section 1983-Related Supreme Court Decisions

Some of you may be interested in a short list of recent Supreme Court section 1983-related decisions. Here are decisions from the Court’s 2021 Term, together with the current two cert-granted cases for the 2022 Term. I hope you find the list useful.

Please note that section references are to the forthcoming 2022-23 Edition of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (West, Westlaw).

Thanks.

——————————————————————————————————–

Supreme Court Decisions in the 2021 Term

  • Kennedy v. Bremerton School Dist: Free Exercise Clause protection for public on-field prayer of high school football coach (see §3:15)
  • Carson v. Makin: Maine prohibition of tuition assistance for parents of school children attending private religious schools in school districts without public high schools violates Free Exercise Clause (see §3:15)
  • New York State Rifle & Pistol Assn. v. Bruen: New York statute requiring anyone seeking a license for concealed carry of handgun to show “proper cause” violates Second Amendment (see §3:16)
  • Vega v. Tekoh: Miranda violations standing alone not actionable under section 1983 (see §3:25)
  • Dobbs v. Jackson Women’s Health Organization: overruling Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey (see §§3:37, 3:52 and 3:78)
  • Thompson v. Clark: section 1983 Fourth Amendment malicious prosecution and meaning of favorable termination (see §§3:66, 3:67, 9:30, 9:58 and 9:64)
  • Nance v. Commissioner, Georgia Dept. of Corrections: injunctive relief challenge to method of execution is section 1983 claim and not habeas corpus (see §§9:57 and 9:64)

Certiorari Granted for Decision in the 2022 Term

      • Health and Hospital Corp. of Marion County v. Talevski: does Spending Clause legislation give rise to privately enforceable rights under section 1983? (see §2:38)

  • Reed v. Goertz: when does statute of limitations for section 1983 claim seeking DNA testing begin to run? (see §9:58)

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August 16, 2022 at 9:16 am

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Miranda Violations and Section 1983: The Disingenuous Decision in Vega v. Tekoh

In Chavez v. Martinez, 538 U.S. 760 (2003), a majority of the Supreme Court effectively held that coerced confessions that violate the Fifth Amendment are actionable under section 1983 so long as the confessions are used at criminal trials. See sec. 3:25 of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2021-22 Edition)(West/Westlaw) for discussion of this confusing case and its various opinions.    

 After Chavez, suppose a plaintiff sues a police officer for damages under section 1983 alleging that an “un-Mirandized” statement was improperly admitted in a criminal prosecution in which the plaintiff was ultimately found not guilty by a jury. In such a case, the Ninth Circuit had concluded:

“[I]n light of the Supreme Court’s decision in Dickerson v. United States [530 U.S. 428 (2000)], which held that Miranda is a rule of constitutional law that could not be overruled by congressional action, we conclude that where the un-Mirandized statement has been used against the defendant in the prosecution’s case in chief in a prior criminal proceeding, the defendant has been deprived of his Fifth Amendment right against self-incrimination, and he may assert a claim against the state official who deprived him of that right under §1983.”

In Vega v. Tekoh, 142 S. Ct. – (2022), rev’g Tekoh v. County of Los Angeles, 985 F.3d 713 (9th Cir. 2021), the Supreme Court, in an opinion by Justice Alito, reversed. It held that the Ninth Circuit had improperly extended Miranda’s case law. The Court explained, first, that Miranda itself and subsequent case law made clear that Miranda violations were not necessarily Fifth Amendment violations but were essentially prophylactic. Second, Dickerson, which involved a federal statute that made the admissibility of a statement given during custodial interrogation turn on voluntariness only–a federal statute that the Court held was unconstitutional because inconsistent with Miranda–did not change this. Justice Alito, in a strained reading, understood Dickerson as not equating Miranda violations with “outright” Fifth Amendment violations, even though Dickerson had asserted that Miranda was a “constitutional decision” that adopted a “constitutional rule.”

Finally, the Court addressed the question whether Miranda violations could be considered actionable “laws” violations—see generally Ch 2 of my Treatise. Answering in the negative, the Court engaged in a kind of cost-benefit analysis and concluded that, among other things, allowing the plaintiff’s section 1983 damages claim to proceed would disserve “judicial economy” and could raise “many procedural issues.” Furthermore, Miranda, Dickerson and other decisions provided sufficient protection against self-incrimination in criminal proceedings. In short, there was “no justification” for extending Miranda to section 1983 damages actions.

 Justice Kagan dissented, joined by Justices Breyer and Sotomayor. They read Dickerson  as making explicit that Miranda is a right “secured by the Constitution”: “Dickerson tells us again and again that Miranda is a ‘constitutional rule’ [and] a ‘constitutional decision’ [and is] ‘constitutionally based.’” They also pointed out that even if Miranda extended the Fifth Amendment’s core guarantee, it was still enforceable under section 1983 as a right in the “ordinary” meaning of that term. Finally, they warned: “[S]ometimes, as a result [of an un-Mirandized statement not being suppressed], a defendant will be wrongfully convicted and spend years in prison. He may succeed, on appeal or in habeas, in getting the conviction reversed. But then, what remedy, does he have for all the harm he has suffered?” This is what section 1983 was for, according to the dissenters.

Comment

How to explain Vega? The most plausible explanation, in my opinion, is that the majority simply did not approve of Miranda on the merits and did not want to expand its coverage beyond criminal proceedings themselves. For that reason, and despite the clear indications in Dickerson that Miranda has a kind of constitutional status, the Court engaged in a tortuous, strained and even disingenuous interpretation of Dickerson to reach its conclusion that Miranda violations are not actionable under section 1983. And as to its use of cost-benefit analysis, the 42nd Congress itself made the cost-benefit analysis way back in 1871: once a state actor deprives a person of a right secured by the Constitution, that person may indeed have a section 1983 damages remedy, subject to the other requirements of section 1983.


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July 12, 2022 at 1:47 pm

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The Religion Clauses, RFRA & RLUIPA: My New Video

At Chicago-Kent’s 38th Annual Conference on Section 1983, which took place as a streaming webinar on April 20-21, 2022, I presented an update on the Establishment Clause, the Free Exercise Clause, the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA). Below are an overview and the link to that 1 1/4 hour video presentation which is intended for attorneys but is also accessible to laypersons.

I covered the following:

I. The Purposes of the Religion Clauses

II. Approaches to the Religion Clauses: Strict Separation and Accommodation

III. The Three Establishment Clause Tests

IV. Three Historically Controversial Areas of Establishment Clause Jurisprudence

V. The Free Exercise Clause

VI. The Religious Freedom Restoration Act

VII. The Religious Land Use and Institutionalized Persons Act

VIII. Concluding Observations

Here is the video:

To receive CLE credit for this event recording and/or find the remaining conference recordings, please visit this Conference Bundle site: https://ckcle.ce21.com/bundle/2022-section-1983-conference-bundle-3713

I hope you find this useful and of interest. If you have any comments, feel free to email me at snahmod@kentlaw.edu.

I also invite you to follow me on Twitter: @NahmodLaw.

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May 26, 2022 at 5:13 pm

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The Supreme Court Maintains Its Aggressive Qualified Immunity Campaign

The Court continues to summarily reverse circuit court denials of qualified immunity to law enforcement officers, as borne out by two per curiam decisions in its 2021-22 Term, one out of the Ninth Circuit and one out of the Tenth Circuit, both handed down on October 18, 2021.

Reversing the Ninth Circuit

The Ninth Circuit case, Rivas-Villegas v. Cortesluna, 142 S. Ct. – (2021)(per curiam), involved a volatile domestic violence situation (reported by a woman’s two teen-age children in a 911 call) where the woman’s boyfriend (the plaintiff) had a knife which responding officers were in the process of removing from plaintiff’s pants when one of the officers placed his knee on the side of plaintiff’s back for no more than eight seconds. Thereafter the plaintiff sued the officer for the use of excessive force in violation of the Fourth Amendment. Reversing the district court, the Ninth Circuit (with a dissent by Judge Collins) ruled that the officer may have violated clearly settled Ninth Circuit precedent and was thus not entitled to qualified immunity.

In turn reversing, the Supreme Court determined that the Ninth Circuit case on which the Ninth Circuit panel relied was materially distinguishable from the present case because the earlier decision did not involve a volatile situation: officers there responded only to a noise complaint. In contrast, here the officers were responding to a report of serious domestic violence possibly involving a chainsaw. As always, the Court warned about the need for fact specificity for clearly settled law purposes. Furthermore, the Court observed: “[N]either [plaintiff] nor the Court of Appeals identified any Supreme Court case that addresses facts like the ones at issue here.” Thus, the officer did not have fair notice that his conduct violated the Fourth Amendment.

Reversing the Tenth Circuit

The Tenth Circuit case, City of Tahlequah v. Bond, 142 S. Ct. – (2021)(per curiam), also involved a domestic violence situation, this one stemming from a 911 call from decedent’s ex-wife regarding his intoxicated state in her garage where the decedent kept his tools, and which he would not leave. After the officers arrived, the decedent grabbed a hammer, causing the officers to back up and draw their guns. Though they yelled at him to drop the hammer, he did not but instead took a position indicating he was about to throw the hammer at the officers or charge them. They then shot and killed him. His estate sued under §1983 alleging excessive force. The district court found qualified immunity protected the officers but the Tenth Circuit reversed on the ground that “Tenth Circuit precedent allows an officer to be held liable for a shooting that is itself objectively reasonable if the officer’s reckless or deliberate conduct created a situation requiring deadly force.”

The Supreme Court reversed the Tenth Circuit and, without deciding the Fourth Amendment issue on the merits, found that the officers did not violate clearly settled Fourth Amendment law. It noted that none of the Tenth Circuit decisions relied upon by the Tenth Circuit panel established that the officers’ conduct here was unlawful. The Tenth Circuit case most relied on by the panel was materially different from the present case because there the officers “responded to a potential suicide call by sprinting toward a parked car, screaming at the suspect, and attempting to physically wrest a gun from him.” In contrast, here the officers engaged decedent in conversation, followed him at a distance and did not yell until he picked up a hammer. Thus, the officers were entitled to qualified immunity because neither the Tenth Circuit nor the estate “identified a single precedent finding a Fourth Amendment violation under similar circumstances.”

Comment

Some of you may recall that decades ago I predicted in prior editions of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2021-22 edition; West, Westlaw) that the Court’s qualified immunity decisions in Harlow v. Fitzgerald, which eliminated the subjective part of qualified immunity as a matter of policy, and in Mitchell v. Forsyth, which made denials of qualified immunity motions for summary judgment immediately appealable, would convert qualified immunity into absolute immunity. The Court’s qualified immunity decisions, especially in the last decade but even before then, have borne out this prediction. You can search on this blog for my comments on these decisions (search “qualified immunity”).

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For


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May 18, 2022 at 10:53 am

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Section 1983 in State Courts: Justiciability

To what extent do the Article III justiciability standards that govern federal court litigation, including the standing requirements of injury in fact, causation and redressability, apply to §1983 actions filed in state court?

There is nothing that prevents a state’s highest court from adopting a federal standard for justiciability that is applicable to all claims, federal and state, filed in its courts. The Supreme Court of Alabama did just this in Alabama Alcoholic Beverage Control Bd. v. Henri-Duval Winery, L.L.C., 890 So. 2d 70 (Ala. 2003), as modified on denial of reh’g, (Apr. 30, 2004), when it adopted the United States Supreme Court’s three-part standing test applicable in federal courts for use in Alabama courts. Subsequently, in Ex parte King, 50 So. 3d 1056 (Ala. 2010), the Supreme Court of Alabama applied this standing test and found that the plaintiffs, who sued under §1983 and argued that the 1901 Arkansas Constitution was never properly ratified and was therefore void, did not allege the requisite injury in fact. Thus, the plaintiffs did not have standing to bring their §1983 claim in state court.

To the same effect is Gifford v. West Ada Joint School Dist., 498 P.2d 1206 (Idaho 2021), where the Idaho Supreme Court stated: “Standing law in Idaho substantially mirrors federal standing law.” Thus, injury in fact, causation and redressability must be established in every case filed in state court. In the case before it, the plaintiff parents alleged that the defendant school board illegally (under both the Idaho Constitution and the Fourteenth Amendment) charged tuition fees for the second half of kindergarten instruction. The Idaho Supreme Court found that the parents had standing to pursue a claim related to their son’s alleged educational injury. However, they did not have standing to pursue a claim for economic injury: because they did not in fact pay kindergarten fees, they suffered no economic injury.

What if a state court adopts state justiciability standards that are tougher for a §1983 plaintiff than Article III standards, with the result that the §1983 plaintiff does not have standing, whereas if the §1983 plaintiff had filed in federal court, there would be standing?

 Dealing with this question, the Supreme Court of Oregon stated, after analysis of the United State’s Supreme Court case law: “[A]n Oregon court cannot apply [more stringent] state standards of mootness and justiciability to a section 1983 claim brought in state court if application of those standards would preclude a plaintiff’s federal claim, but application of the federal standards would not.” Barcik v. Kubiaczyk, 321 Or. 174, 895 P.2d 765 (1995). The Oregon Supreme Court observed that if the result were otherwise, a plaintiff’s rights in a federal claim would be limited “simply because that claim is brought in state court.” In the case before it, the trial court did just that and this was error. State mootness and justiciability standards were neither jurisdictional rules relating to subject matter jurisdiction or personal jurisdiction, nor were they “neutral procedural rules” relating to the administration of the courts.

What if a state’s justiciability standards are generally more favorable to a §1983 plaintiff suing in state court than Article III standards?

In the Barcik case, the Oregon Supreme Court expressly did not address what would happen if state justiciability standards generally were more favorable to a §1983 plaintiff suing in state court than federal justiciability standards would be. 321 Or. at 186 n9. I would suggest, though, that this should not raise a troublesome issue of federal law because it does not discriminate against or otherwise burden federal claims and thus does not violate the Supremacy Clause. Compare Haywood v. Drown, 556 U.S.729 (2009).

On the other hand, if the §1983 case initially filed in state court were to be removed by the defendants to federal court, then a serious Article III standing issue could arise for the §1983 plaintiff because Article III justiciability requirements cannot be waived, unlike, say, the Eleventh Amendment. Lapides v. Board of Regents, 535 U.S. 613 (2002). See, on removal and the Eleventh Amendment, Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 §1:39 (2021-22; West & Westlaw). The result in such a case could be the loss of standing for the §1983 plaintiff in federal court.

Along similar lines, consider my post regarding removal and pleading requirements in situations where §1983 defendants removed a case from state court, with its liberal pleading requirements, to federal court, with its stricter plausibility requirements. The result in a Fifth Circuit decision was that the stricter plausibility requirements governed in federal court. This too suggests that, in our hypothetical, the §1983 plaintiff would not have standing in federal court. https://nahmodlaw.com/2018/05/02/pleading-iqbal-and-the-removal-of-section-1983-claims-to-federal-court/


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March 18, 2022 at 9:20 am

Posted in Uncategorized