|Lugar v. Edmondson Oil Co., Inc.
[ White ]
[ Burger ]
[ Powell ]
Lugar v. Edmondson Oil Co., Inc.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
JUSTICE POWELL, with whom JUSTICE REHNQUIST and JUSTICE O'CONNOR join, dissenting.
Today's decision is a disquieting example of how expansive judicial decisionmaking can ensnare a person who had every reason to believe he was acting in strict accordance with law. The case began nearly five years ago as the outgrowth of a simple suit on a debt in a Virginia state court. Respondent -- a small wholesale oil dealer in Southside, Va. -- brought suit against petitioner Lugar, a truckstop owner who had failed to pay a debt. [n1] The suit was to collect this indebtedness. Fearful that petitioner might dissipate his assets before the debt was collected, respondent also filed a petition in state court seeking sequestration of certain of Lugar's assets. He did so under a Virginia statute, traceable at least to 1819, that permits creditors to seek prejudgment attachment of property in the possession of debtors. [n2] No court had questioned the validity of the statute, and it remains presumptively valid. The Clerk of the state court duly issued a writ of attachment, and the County Sheriff then executed it. There is no allegation that respondent conspired with the state officials to deny petitioner the fair protection of state or federal law. [p945]
Respondent ultimately prevailed in his lawsuit. The petitioner Lugar was ordered by a court to pay his debt. A state court did find, however, that Lugar's assets should not have been attached prior to a judgment on the underlying action.
Following this decision, Lugar instituted legal action in the United States District Court for the Western District of Virginia. Suing under a federal statute, 42 U.S.C. § 1983 Lugar alleged that the respondent -- by filing a petition in state court -- had acted "under color of law" and had caused the deprivation of constitutional rights under the Fourteenth Amendment -- an Amendment that does not create rights enforceable against private citizens, such as one would have assumed respondent to be, but only against the States. Rendell-Baker v. Kohn, ante at 837; Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156 (1978); Shelley v. Kraemer, 334 U.S. 1, 13 (1948); Civil Rights Cases, 109 U.S. 3, 11 (1883). [n3] Both the District Court and the Court of Appeals agreed that petitioner had no cause of action under § 1983. They sensibly found that respondent could not be held responsible for any deprivation of constitutional rights, and that the suit did not belong in federal court.
This Court today reverses the judgment of those lower courts. It holds that respondent, a private citizen who did no more than commence a legal action of a kind traditionally initiated by private parties, thereby engaged in "state action." This decision is as unprecedented as it is implausible. It is plainly unjust to the respondent, and the Court makes no [p946] argument to the contrary. Respondent, who was represented by counsel, could have had no notion that his filing of a petition in state court, in the effort to secure payment of a private debt, made him a "state actor" liable in damages for allegedly unconstitutional action by the Commonwealth of Virginia. Nor is the Court's analysis consistent with the mode of inquiry prescribed by our cases. On the contrary, the Court undermines fundamental distinctions between the common sense categories of state and private conduct and between the legal concepts of "state action" and private action "under color of law."
The plain language of 42 U.S.C. § 1983 establishes that a plaintiff must satisfy two jurisdictional requisites to state an actionable claim. First, he must allege the violation of a right "secured by the Constitution and laws" of the United States. Because "most rights secured by the Constitution are protected only against infringement by governments," Flagg Bros., Inc. v. Brooks, 436 U.S. at 156, this requirement compels an inquiry into the presence of state action. Second, a § 1983 plaintiff must show that the alleged deprivation was caused by a person acting "under color" of law. In Flagg Bros., this Court affirmed that "these two elements denote two separate areas of inquiry." Id. at 155-156. See Adickes v. S. H. Kress & Co., 398 U.S. 144, 152 (1970).
This case demonstrates why separate inquiries are required. Here it is not disputed that the Virginia Sheriff and Clerk of Court, the state officials who sequestered petitioner's property in the manner provided by Virginia law, engaged in state action. Yet the petitioner, while alleging constitutional injury from this action by state officials, did not sue the State or its agents. In these circumstances, the Court of Appeals correctly stated that the relevant inquiry was the second identified in Flagg Bros.: whether the respondent, a private citizen whose only action was to invoke a presumptively valid state attachment process, had acted under color of state law in "causing" the State to deprive petitioner [p947] of alleged constitutional rights. [n4] Consistently with past decisions of this Court, the Court of Appeals concluded that respondent's private conduct had not occurred under color of law.
Rejecting the reasoning of the Court of Appeals, the Court opinion inexplicably conflates the two inquiries mandated by Flagg Bros. Ignoring that this case involves two sets of actions -- one by respondent, who merely filed a suit and accompanying sequestration petition; another by the state officials, who issued the writ and executed the lien -- it wrongly frames the question before the Court, not as whether the private respondent acted under color of law in filing the petition, but as "whether . . . respondents, who are private parties, may be appropriately characterized as ‘state actors.'" Ante at 939. It then concludes that they may, on the theory that a private party who invokes "the aid of state officials to take advantage of state-created attachment procedures" is a "joint participant" with the State, and therefore a "state actor." "The rule," the Court asserts, is as follows:
Private persons, jointly engaged with state officials in the prohibited action, are acting "under color" of law for purposes of the statute. To act "under color" of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in a joint activity with the State or its agents.
There are at least two fallacies in the Court's conclusion. First, as is apparent from the quotation, our cases have not established that private "joint participants" with state officials themselves necessarily become state actors. Where private citizens interact with state officials in the pursuit of merely private ends, the appropriate inquiry generally is whether the private parties have acted "under color of law." Second, even when the inquiry is whether an action occurred under color of law, our cases make clear that the "joint participation" standard is not satisfied when a private citizen does no more than invoke a presumptively valid judicial process in pursuit only of legitimate private ends.
As this Court recognized in Monroe v. Pape, 365 U.S. 167, 172 (1961), the historic purpose of § 1983 was to prevent state officials from using the cloak of their authority under state law to violate rights protected against state infringement by the Fourteenth Amendment. [n5] The Court accordingly is correct that an important inquiry in a § 1983 suit against a private party is whether there is an allegation of wrongful "conduct that can be attributed to the State." Ante at 941. This is the first question referred to in Flagg Bros. But there still remains the second Flagg Bros. question: whether this state action fairly can be attributed to the respondent, whose [p949] only action was to invoke a presumptively valid attachment statute. This question, unasked by the Court, reveals the fallacy of its conclusion that respondent may be held accountable for the attachment of property because he was a "state actor." [n6] From the occurrence of state action taken by the Sheriff who sequestered petitioner's property, it does not follow that respondent became a "state actor" simply because the Sheriff was. This Court, until today, has never endorsed this non sequitur.
It, of course, is true that respondent's private action was followed by state action, and that the private and the state actions were not unconnected. But "[t]hat the State responds to [private] actions by [taking action of its own] does not render it responsible for those [private] actions." Blum v. Yaretsky, post at 1005. See Flagg Bros., 436 U.S. at 164-165; Jackson v. Metropolitan Edison Co., 419 U.S. 345, 357 (1974). And where the State is not responsible for a private decision to behave in a certain way, the private action generally cannot be considered "state action" within the meaning of our cases. See, e.g., Blum v. Yaretsky, post at 1004-1005; Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 172-173 (1972). As in Jackson v. Metropolitan Edison Co., supra,
[r]espondent's exercise of the choice allowed by state law where [p950] the initiative comes from it and not from the State, does not make its action in doing so "state action" for purposes of the Fourteenth Amendment.
419 U.S. at 357 (footnote omitted).
This Court, of course, has held that private parties are amenable to suit under § 1983 when "jointly engaged" with state officials in the violation of constitutional rights. See Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970). [n7] Yet the Court, in advancing its "joint participation" theory, does not cite a single case in which a private decision to invoke a presumptively valid state legal process has been held to constitute state action. Even the quotation on which the Court principally relies for its statement of the applicable "rule," ante at 941, does not refer to state action. Rather, it states explicitly that "[p]rivate persons, jointly engaged with state officials in the prohibited action, are acting ‘under color' of law for purposes of the statute."
As illustrated by this quotation, our cases have recognized a distinction between "state action" and private action under "color of law." This distinction is sound in principle. It also is consistent with and supportive of the distinction between "private" conduct and government action that is subject to the procedural limitations of the Due Process Clause of the Fourteenth Amendment. As the Court itself notes:
Careful adherence to the "state action" requirement preserves an area of individual freedom by limiting the reach of federal law and federal judicial power. It also avoids imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed.
Ante at 936.
A "color of law" inquiry acknowledges that private individuals, engaged in unlawful joint behavior with state officials, may be personally responsible for wrongs that they cause to occur. But it does not confuse private actors with the [p951] State -- the fallacy of the analysis adopted today by the Court. In this case, involving the private action of the respondent in petitioning the state courts of Virginia, the appropriate inquiry as to respondent's liability is not whether he was a state actor, but whether he acted under color of law. It is to this question that I therefore turn.
Contrary to the position of the Court, our cases do not establish that a private party's mere invocation of state legal procedures constitutes "joint participation" or "conspiracy" with state officials satisfying the § 1983 requirement of action under color of law. In Dennis v. Sparks, 449 U.S. 24 (1980), we held that private parties acted under color of law when corruptly conspiring with a state judge in a joint scheme to defraud. In so holding, however, we explicitly stated that "merely resorting to the courts and being on the winning side of a lawsuit does not make a party a coconspirator or a joint actor with the judge." Id. at 28. This conclusion is reinforced by our more recent decision in Polk County v. Dodson, 454 U.S. 312 (1981). As we held to be true with respect to the defense of a criminal defendant, invocation of state legal process is "essentially a private function . . . for which state office and authority are not needed." Id. at 319. These recent decisions make clear that independent, private decisions made in the context of litigation cannot be said to occur under color of law. [n8] The Court nevertheless advances two principal grounds for its holding to the contrary. [p952]
The Court argues that petitioner's action under § 1983 is supported by cases in which this Court has applied due process standards to state garnishment and prejudgment attachment procedures. The Court relies specifically on Sniadach v. Family Finance Corp., 395 U.S. 337 (1969); Fuentes v. Shevin, 407 U.S. 67 (1972); Mitchell v. W. T. Grant Co., 416 U.S. 600 (1974); and North Georgia Finishing, Inc. v. DiChem, Inc., 419 U.S. 601 (1975). According to the Court, these cases establish that a private party acts "under color" of law when seeking the attachment of property under an unconstitutional state statute. [n9] In fact, a careful reading demonstrates that they provide no authority for this proposition.
Of the cases cited by the Court, Sniadach, Mitchell, and Di-Chem all involved attacks on the validity of state attachment or garnishment statutes. None of the cases alleged that the private creditor was a joint actor with the State, and none involved a claim for damages against the creditor. Each case involved a state suit, not a federal action under § 1983. It therefore was unnecessary in any of these cases for this Court to consider whether the creditor, by virtue of instituting the attachment or garnishment, became a state actor or acted under color of state law. There is not one word in any of these cases that so characterizes the private creditor. [n10] In Fuentes v. Shevin, the Court did consider a [p953] § 1983 action against a private creditor, as well as the State Attorney General. [n11] Again, however, the only question before this Court was the validity of a state statute. No claim was made that the creditor was a joint actor with the State, or had acted under color of law. No damages were sought from the creditor. Again, there was no occasion for this Court to consider the status under § 1983 of the private party, and there is not a word in the opinion that discusses this. As with Sniadach, Mitchell, and Di-Chem, Fuentes thus fails to establish that a private party's mere invocation of state attachment or garnishment procedures represents action under color of law -- even in a case in which those procedures are subsequently held to be unconstitutional.
In addition to relying on cases involving the constitutionality of state attachment and garnishment statutes, the Court advances a "joint participation" theory based on Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970). In Adickes, the plaintiff sued a private restaurant under § 1983, alleging a conspiracy between the restaurant and local police to deprive her of the right to equal treatment in a place of public accommodation. Id. at 152, 153. Reversing the decision below, this Court upheld the cause of action. It found that the private defendant, in "conspiring" with local police to obtain official enforcement of a state custom of racial segregation, engaged in a "‘joint activity with the State or its agents,'" [p954] and therefore acted under color of law within the meaning of § 1983. Id. at 152 (quoting United States v. Price, 383 U.S. at 794).
Contrary to the suggestion of the Court, however, Justice Harlan's Court opinion in Adickes did not purport to define the term "under color of law." Attending closely to the facts presented, the Court observed that,
[w]hatever else may also be necessary to show that a person has acted "under color of [a] statute" for purposes of § 1983, . . . we think it essential that he act with the knowledge of, and pursuant to, that statute.
398 U.S. at 162, n. 23 (emphasis added). As indicated by this choice of language, the Court clearly seems to have contemplated some limiting principle. A citizen summoning the police to enforce the law ordinarily would not be considered to have engaged in a "conspiracy." Nor, presumably, would such a citizen be characterized as acting under color of law, and thereby risking amenability to suit for constitutional violations that subsequently might occur. Surely there is nothing in Adickes to indicate that the Court would have found action under color of law in cases of this kind.
Although Adickes is distinguishable from these hypotheticals, the current case is not. The conduct in Adickes occurred in 1964, 10 years after Brown v. Board of Education, 347 U.S. 483 (1954), and after the decade of publicized litigation that followed in its wake. In view of the intense national focus on issues of racial discrimination, it is virtually inconceivable that a private citizen then could have acted in the innocent belief that the state law and customs involved in Adickes still were presumptively valid. As Justice Harlan wrote,
[f]ew principles of law are more firmly stitched into our constitutional fabric than the proposition that a State must not discriminate against a person because of his race or the race of his companions, or in any way act to compel or encourage segregation.
398 U.S. at 150-152. Construed as resting on this basis, Adickes establishes that a private [p955] party acts under color of law when he conspires with state officials to secure the application of a state law so plainly unconstitutional as to enjoy no presumption of validity. In such a context, the private party could be characterized as hiding behind the authority of law, and as engaging in "joint participation" with the State in the deprivation of constitutional rights. [n12] Here, however, petitioner has alleged no conspiracy. Nor has he even alleged that respondent was invoking the aid of a law he should have known to be constitutionally invalid. [n13] Finally, there is no allegation that respondent's decision to invoke legal process was in any way [p956] compelled by the law or custom of the State in which he lived. In this context, Adickes simply is inapposite.
Today's decision therefore is as unprecedented as it is unjust. [n14]
1. The state action, filed in the name of the Edmondson Oil Co., alleged that Lugar owed $41,983 for products and merchandise previously delivered. App. 22. In the present suit, Lugar has named as defendants both the Edmondson Oil Co. and its president, Ronald Barbour. As the respondent Barbour is the sole stockholder of Edmondson Oil Co., id. at 2, and appears to have directed all its actions in this litigation, see id. at 26, I refer throughout to Barbour as if he were the sole respondent.
2. See Va.Code § 8.01-533 et seq. (1977). At the time of the attachment in this case, the applicable provisions were Va.Code § 8-519 et seq. (1973). The Virginia attachment provisions have remained essentially in their present form despite numerous recodifications since 1819. See Va.Code § 8-519 et seq. (1950); Va.Code § 6378 et seq. (1919); Va.Code § 2959 et seq. (1887); Va.Code, ch. 151 (1849); Va.Code, ch. 123 (1819).
3. Title 42 U.S.C. § 1983 at the time in question, provided:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
4. Judge Phillips' excellent opinion for the en banc Court of Appeals correctly defined the question presented as
whether the mere institution by a private litigant of presumptively valid state judicial proceedings, without any prior or subsequent collusion or concerted action by that litigant with the state officials who then proceed with adjudicative, administrative, or executive enforcement of the proceedings, constitutes action under color of state law within the contemplation of § 1983.
639 F.2d 1058, 1061-1062 (CA4 1981) (footnote omitted).
5. State officials acting in their official capacities, even if in abuse of their lawful authority, generally are held to act "under color" of law. E.g., Monroe v. Pape, 365 U.S. at 171-172; Ex parte Virginia, 100 U.S. 339, 346-347 (1880). This is because such officials are "clothed with the authority" of state law, which gives them power to perpetrate the very wrongs that Congress intended § 1983 to prevent. United States v. Classic, 313 U.S. 299, 326 (1941); Ex parte Virginia, supra, at 346-347. Cf. Polk County v. Dodson, 454 U.S. 312 (1981) (a public defender, representing an indigent client in a criminal proceeding, performs a function for which the authority of his state office is not needed, and therefore does not act under color of state law when engaged in a defense attorney's traditionally private roles).
6. The Court, ante at 928, quotes United States v. Price, 383 U.S. 787, 794, n. 7 (1966), as establishing that,
[i]n cases under § 1983, "under color" of law has consistently been treated as the same thing as the "state action" required under the Fourteenth Amendment.
In Price, however, the same conduct by the same actors constituted both "state action" and the action "under color" of law. See 383 U.S. at 794, n. 7 (if an indictment alleges "conduct on the part of the ‘private' defendants which constitutes ‘state action,' [it also alleges] action ‘under color of law' . . ."). The situation in this case is quite different. The present case involves "state action" by the Sheriff -- action that also was "under color of law" under Price. But the real question here is whether the conduct of the private respondent constituted either state action or action under color of law. The Price quotation plainly does not resolve this question. And the cases cited in Price, on which the Court also relies, are similarly inapposite.
7. In Adickes, the term "jointly engaged" appears to have been used specifically to connote engagement in a "conspiracy." See 398 U.S. at 152-153.
8. The Court avers that its holding "is limited to the particular context of prejudgment attachment." Ante at 939, n. 21. However welcome, this limitation lacks a principled basis. It is unclear why a private party engages in state action when filing papers seeking an attachment of property, but not when seeking other relief (e.g., an injunction), or when summoning police to investigate a suspected crime.
9. At one stage in the litigation, the respondent averred that his lawsuit raised "[n]o question of the constitutional validity of the State statutes." Plaintiff's Memorandum in Opposition to Motion to Dismiss 3. The District Court nevertheless concluded that "the complaint can only be read as challenging the constitutionality of Virginia's attachment statute." App. to Pet. for Cert. 38. The Court of Appeals agreed. 639 F.2d at 1060, and n. 1.
10. The Court finds support for its contrary view only by reading these cases as implicitly embracing the same fallacy as the Court does today. In Sniadach, Mitchell, and Di-Chem -- as in this case -- there was no question that state action had occurred. There, as here, some official of the State -- an undisputed state actor -- had undertaken either to attach property or garnish wages. For the Court, the occurrence of state action by these state officials ipso facto establishes that the private plaintiffs also must have been viewed as state actors. Given the presence of state action by the state officials, however, there was no need to inquire whether the private parties also were state actors. It is plain from the opinions that the Court did not do so. Nor, in cases arising in state court, was there any need to consider whether the private defendants had acted under color of law within the meaning of § 1983.
11. Fuentes was consolidated with a case involving similar facts, Epps v. Cortese, 326 F.Supp. 127 (ED Pa.1971).
12. Arguing that the patent unconstitutionality of racial discrimination was irrelevant to the "conspiracy" count in Adickes, the Court charges that this discussion confuses the conspiracy and the substantive causes of action. Ante at 932, n. 15. The Court's view is difficult to understand. In Adickes, the private defendant allegedly conspired with the police to "deprive plaintiff of her right to enjoy equal treatment and service in a place of public accommodation," 398 U.S. at 150, n. 5, and apparently to cause her discriminatory and legally baseless arrest under a vagrancy statute. Because the vagrancy statute was not challenged as invalid on its face, the Court concludes that the "joint action" or "conspiracy" count "did not involve a state law, whether ‘plainly unconstitutional' or not." Ante at 932, n. 15. This conclusion is simply wrong. In the first place, the alleged "conspiracy" included an agreement to enforce a state law requiring racial segregation in restaurants. This law plainly was unconstitutional. Further, even the vagrancy statute certainly would have been unconstitutional as applied to enforce racial segregation. Presumably it was for these reasons that the Court agreed that the private defendant had "conspir[ed]" with the local police. 398 U.S. at 152. Adickes is entirely a different case from the one at bar.
13. At least one scholarly commentator has stated a cautious conclusion that the Virginia attachment provisions would satisfy the standards established by this Court's recent due process decisions. See Brabham, Sniadach Through Di-Chem and Backwards: An Analysis of Virginia's Attachment and Detinue Statutes, 12 U.Rich.L.Rev. 157, 195-199 (1977). The correctness of this conclusion is not, of course, an issue in the present posture of the case, nor is it directly relevant to the case's proper resolution.
14. The Court suggests that respondent may be entitled to claim good faith immunity from this suit for civil damages. Ante at 942, n. 23. This is a positive suggestion with which I agree. A holding of immunity will mitigate the ultimate cost of this litigation. It would not, however, convert the Court's holding into a just one. This case already has been in litigation for nearly five years. It will now be remanded for further proceedings. Respondent, solely because he undertook to assert rights authorized by a presumptively valid state statute, will have been subjected to the expense, distractions, and hazards of a protracted litigation.