Section 1983 Litigation in State Courts: a Review

• Publication year: 1989
• Pages: 27
• Citation: Vol. 18 No. 1 Pg. 27

18 Colo.Law. 27 Colorado Lawyer 1989.

1989, January, Pg. 27. Section 1983 Litigation in State Courts: A Review

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27

Vol. 18, No. 1, Pg.27

Section 1983 Litigation in State Courts: A Review

by Craig M. Cornish

Once in a while there is an advertisement for a law book which at first glance appears to be packed with information about a subject an attorney would think is too esoteric to be useful. The book entitled Section 1983 Litigation in State Courts ("Section 1983"),(fn1) by Professor Steven H. Steinglass, is one of those books which seemed to be so esoteric as to be valuable only on that rare occasion when the subject discussed would need to be resolved or briefed. However, this author has happily discovered its relevance to increasingly recurring problems in a civil rights practice where more and more cases are being filed in state court rather than federal court.

Section 1983 provides case discussions and analyses on a variety of increasing and unique questions about the procedural and remedial effect of litigating federal civil rights cases in state courts. This article discusses the factors that should be considered in deciding whether to file a § 1983 action in Colorado state courts and how Section 1983 can be a useful tool in making that decision.(fn2)

Tort Reform

In 1986 the Colorado legislature adopted sweeping tort reform. Colorado tort reform has caused persons injured by public employees---generally employees of the state of Colorado, public school districts, counties and municipalities---to look to the Civil Rights Act of 1871, 42 U.S.C. § 1983, as a means of avoiding new limitations on compensatory benefits. Among other things, the Colorado Governmental Immunity Act ("GIA")(fn3) and general rules limiting tort recovery do the following:

1) require compliance with the Notice of Claim provision in the GIA as a jurisdictional requirement;(fn4)

2) immunize all public entities from tort liability except for very narrow exceptions;(fn5)

3) immunize individual governmental officials from tort liability, except for the narrow exceptions contained in subsection 106(1) of the GIA or where the public official's acts or omissions are willful or wanton;(fn6)

4) shorten to one year the statute of limitations for tort claims against sheriffs, police officers or any other law enforcement authority;(fn7)

5) impose a cap on non-economic injury;(fn8) and

6) reduce punitive damages to a presumptive amount equal to compensatory damages and an absolute cap of three times compensatory damages.(fn9)

If an injury is redressable under § 1983, most, if not all, of the effects of Colorado tort law will be avoided by the preemptive effect of the federal statute.(fn10) In addition, by succeeding under § 1983, a plaintiff is entitled to an award of attorney's fees pursuant to 42 U.S.C. § 1988.(fn11) By immunizing so many wrongful and harmful acts perpetrated by government officials against its citizens, the Colorado General Assembly may have unwittingly encouraged state courts to become, out of moral necessity, a font of constitutional tort law.

The Availability of a State Forum

A variety of traditional state tort causes of action may be actionable under 42 U.S.C. § 1983 as federal constitutional violations. Because state courts have concurrent jurisdiction to hear § 1983 claims, plaintiffs may redress violations of their federal constitutional or statutory rights in state...