During my practice, I have had occasion to use the provisions of 42 USC Section 1983. I believe this statute could be improved by enacting the following proposed statute. I have also included a description of the purpose and meaning of each of its sections in order to give the reader a better idea of its purpose. I have no particular desire to see the exact language of what I propose here enacted, and since I am by no means experienced in crafting statutory provisions, others could probably come up with better language. What I care about is seeing a statute enacted that accomplishes the goals and objectives of what I propose here. As time goes by, I may come up with better language than that proposed here, or add language to take account of things I did not consider here. If you are unfamiliar with 42 USC Section 1983, I recommend that you read my law blog entry on the subject first.
Sunday, April 13, 2008
Text of Proposed Statute and Commentary
THE INDIVIDUAL RIGHTS ACT OF 200__
42 USC Sec.__________
(a)
The first plaintiff to file suit under 42 USC Section 1983 regarding any state statute, ordinance, regulation, or other law, that is subsequently adjudicated in said suit to be a violation of the 14th Amendment of the United States Constitution, shall be entitled to an award of $100,000.
(b)
The award described in subsection (a) of this section shall be paid by the state whose statute, ordinance, regulation, or other law was adjudicated to have violated the 14th Amendment to the United States Constitution.
(c)
Pursuant to Congress’s power under Section 5 of Amendment 14 of the United States Constitution, state sovereign immunity is hereby abrogated insofar as is necessary for carrying out this section. Also pursuant to Congress’s power under Section 5 of Amendment 14 of the United States Constitution, state 11th Amendment immunity is hereby abrogated insofar as is necessary for carrying out this section.
(d)
The award described in subsection (a) is in addition to any other nonmonetary relief available under 42 USC Section 1983, and any monetary relief available under 42 USC Section 1988(b).
(e)
A plaintiff requesting an award under this section shall name in his original petition, in addition to any other relevant defendants, the state whose statute, ordinance, regulation, or other law is alleged to violate the 14th Amendment of the United States Constitution.
(f)
This section is not intended to limit or abolish other remedies or causes of action available for violations of the United States Constitution.
(g)
This section shall not apply to any suit where a money damages award would otherwise be available under 42 USC Section 1983.
Purpose of the Act: Under the current law, a person whose rights have been violated by a state law can file suit under 42 USC Section 1983. However, the courts have interpreted the remedy available as limited in many cases that involve an unconstitutional state statute or law. Generally, a 42 USC Section 1983 challenge of a state law is limited to obtaining an injunction against state officials, ordering them to obey the constitution (and therefore not enforce the unconstitutional state law). This is due to state common law sovereign immunity and 11th Amendment Immunity. (See Quern v. Jordan, 440 U.S. 332 (1978).) Although Congress has the power under Section 5 of Amendment 14 to abrogate sovereign immunity, the courts have said that it must do so explicitly. This means that there is minimal incentive to file a section 1983 suit against states that pass unconstitutional laws. Although a Section 1983 plaintiff is entitled to an award of attorney’s fees (see 42 USC Section 1988), which gives his lawyer an incentive to represent him in such a suit, the plaintiff himself has no financial incentive to file such suit.
In fact, there is generally a disincentive associated with the filing of Section 1983 lawsuits. The disincentives can be anything from public scorn and ridicule to loss of a job, or risk of bodily injury or death. Generally, a state law is passed because there is a large segment of the population that approves of the law in that state, which is why their representatives in the state legislatures generally enact such statutes. Often these state laws are passed in spite of, or even in disregard of, their adverse affect on the rights of individuals, especially when those rights involve an unpopular minority group in that state. The Bill of Rights, and the Federal courts, have acted as an important check on the passions of the majority, which can often be as tyrannical as any king or dictator. (See Federalist No. 51, Madison: “It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure.”) This proposed statute provides another valuable tool to aid in the protection of individual rights guaranteed by the United States Constitution.
Explanation of the Proposed Act’s Provisions:
The act is broken down into subsections (a) through (f). The first subsection (a) says that the first plaintiff who files a Section 1983 lawsuit regarding an unconstitutional state law will be entitled to an award of $100,000 if he wins the lawsuit. The reason subsection (a) limits the $100,000 award to the first person to file a lawsuit regarding a particular unconstitutional state law is because the purpose of the act is to give Section 1983 plaintiffs a financial incentive to file such suits. If a Section 1983 action regarding a state law is successful, then the injunction will prevent further enforcement of that law in the state, which means there will be no need to file further suits on the matter. Saying that only the first person to file the Section 1983 action is entitled to the $100,000 award is also meant to encourage prompt court challenges of unconstitutional state laws, rather than allowing them to stay on the books unchallenged for years or even decades. The $100,000 figure for the award described in subsection (a) was chosen because it seems like a sufficient incentive for bringing a Section 1983 suit, while not over-burdening a particular state’s taxpayers, many of whom may have opposed the unconstitutional statute in the first place.
Subsection (b) makes it explicit that the state government that passed the unconstitutional law, rather than any state official in his individual capacity, or the Federal government, is responsible for paying the $100,000 award. Subsection (c) makes it explicit to any court that Congress did intend to abrogate State sovereign immunity and 11th Amendment immunity for purposes of carrying out the section, and that this is done pursuant to the power granted to Congress under Section 5 of the 14th Amendment to the United States Constitution.
Subsection (d) ensures that this section does not affect any other rights a plaintiff might have under 42 USC Section 1983 or 1988. It ensures that any damages award available under existing law is still available and that the attorney’s fee award is still available in addition to the $100,000 award.
Subsection (e) establishes a procedural rule that requires the Section 1983 plaintiff to name the actual State in his petition. So, for instance, if John Doe were filing suit under Section 1983 and this proposed Act, it would be: “John Doe v. State of _________”. This subsection also says that other relevant defendants should continue to be named. For instance, the Section 1983 plaintiff seeking an injunction prohibiting state officials from enforcing a particular state law would continue to name those state officials, in addition to the state. Naming the state in the original petition will make it easier to establish who was the first to file against a state regarding a particular unconstitutional state statute, which will assist the court in determining whether a plaintiff is entitled to the $100,000 award.
Subsection (f) is simply there to ensure that it is understood by the courts that this proposed Act is supplemental to the rights a Section 1983 Plaintiff already has under federal law, and does not, in any way, limit those rights, nor does it limit any other cause of action currently available under Federal law to protect Constitutional rights.
Subsection (g) says that in order to be entitled to the award, a plaintiff must not already be entitled to a money damages award under 42 USC Sec. 1983. The purpose here is to limit the award to cases in which the successful Sec. 1983 plaintiff would not otherwise be entitled to money damages. If the plaintiff is already entitled to a money damages award under existing Section 1983 law, then the plaintiff will not be likely to need any further incentive to file suit, making the $100,000 award unnecessary. Generally, this limitation in subsection (g) means that only Section 1983 Plaintiffs seeking an injunction prohibiting the enforcement of a state law as their exclusive remedy will be able to benefit from this new law. However, this subsection does not mean that this law would never apply in cases where there were, in fact, money damages suffered by the Plaintiff. It simply means that a money damages award must have been unavailable under preexisting Section 1983 law, due to sovereign immunity or some other legal prohibition on a money damages award. So, for instance, if the courts say that a person suing under 42 USC Sec. 1983 for a state taking of private property without just compensation is not entitled under Sec. 1983 to a money damages award due to the 11th Amendment, or other sovereign immunity principle, then the $100,000 award would be available to the plaintiff under this new section. (For instance, see Washington Legal Found. v. Texas Equal Access to Justice Found., 94 F.3d 996, 1004-1005 (1996), where the 5th Circuit Court of Appeals said 11th Amendment Immunity bars a money damages award for state takings of private property.)