A Federal Genie from a State Bottle: Section 1983 in the Colorado State Courts
| Jurisdiction | Colorado,United States,Federal |
| Citation | Vol. 04 No. 1990 Pg. 617 |
| Pages | 617 |
| Publication year | 1990 |
1990, April, Pg. 617. A Federal Genie from a State Bottle: Section 1983 in the Colorado State Courts
Apart from the abolishment of human bondage, the federal remedy for violations of federal law, 42 U.S.C. § 1983, is proving to be the most enduring legacy of the Civil War. Enacted in 1871, § 1983 simply states that any person shall have a remedy at law or in equity if he or she is deprived of any federal right by a person or entity acting under color of state law. In addition, the victim is entitled to an award of attorney's fees should he or she prevail. The statute has been a major engine behind the force of federalism in the American legal system.
Since the U.S. Supreme Court's decision in Monroe v. Pape,(fn1) a large body of federal case law has grown up around this statute.(fn2) While it is federal, it is not enforced solely by federal courts; state courts now deal with § 1983 issues. Colorado, in fact, has developed one of the more extensive bodies of § 1983 case law in the nation.
This article discusses recent state § 1983 case law which has presented significant advantages to plaintiffs seeking to enforce rights against state and local governments. These advantages include the expanded ability to use discovery and to obtain injunctions, damages and attorney's fees. Three areas in particular have recently expanded the advantages of filing a § 1983 claim. First, decisions have held that recent limitations imposed upon tort claims may not apply to § 1983 cases. Second, § 1983 decisions have freed parties in administrative agency proceedings from being restricted to a reversal of an administrative decision as their sole remedy, finally, the state court decisions have adopted a procedurally simpler and more liberal method for awarding attorney's fees to a prevailing party.
This article first discusses the § 1983 remedy generally. It then presents the advantages of a § 1983 filing in obtaining damages, in expanding relief through joinder of § 1983 claims with administrative agency proceedings and in obtaining attorney's fees.
The statute was first enacted as part of the Civil Rights Act of 1871, which was aimed at enforcing the newly ratified Fourteenth Amendment in the South during the Reconstruction. Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom or usage, of any state ... causes to be subjected any ... person ... to the deprivation of any rights, privileges, or immunities secured by the constitution and law, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
Although the U.S. Supreme Court has never required a state forum, no state has ever refused to entertain § 1983 claims in its state courts. Through the application of § 1983, an injured party can obtain injunctive relief, special damages, general damages, nominal damages, exemplary damages, costs and attorney's fees.
A number of tactical considerations suggest that a particular § 1983 claim might be better litigated in state rather than federal court. Section 1983 often offers a broader remedy than a state-created cause of action. It may then be joined with a state-based claim or be substituted for one. A remedy sought through § 1983 enjoys a two-year statute of limitations,(fn3) and allows discovery, an award of costs against a state entity,(fn4) a variety of damages, temporary and permanent injunctions and an award of attorney's fees to the plaintiffs.(fn6)
David G. Kroll is managing attorney in the Colorado Rural Legal Services office in Greeley, CO.
By joining a § 1983 claim to a state-based claim in state court, a litigant may avoid problems such a strategy would encounter in federal court. For example, federal courts are reluctant to hear pendent state claims and they may not instruct state officials as to how to apply state law.(fn6) These barriers can be avoided without splitting a claim between two court proceedings by filing both the federal and state claims in state court. Finally, a party need not go all the way to the federal court in Denver to file a § 1983 claim since it may be filed in any local state court.
Section 1988 provides that, to the extent § 1983 does not deal with a particular procedural requirement, a court should apply the procedure provided by the local state law. However, state law should not be borrowed if it conflicts with the remedial purpose of § 1983.(fn7) The U.S. Supreme Court has attempted to apply this borrowing requirement in a consistent manner to establish a uniform § 1983 case law. For example, the Court has determined that state statutes of limitations for personal injury cases will always be applied to § 1983 claims. The rule is uniform, although the practical effect will differ from state to state.(fn8)
When dealing with § 1983 issues, Colorado courts have looked first to the U.S. Supreme Court. If that Court has not decided the issue, the Colorado courts look at federal opinions from any circuit; there is no deference given to Tenth Circuit opinions. In fact, in Neil v. Espinoza,(fn9) the Colorado Supreme Court declined to overrule its decision in Espinoza v. O'Dell,(fn10) even though the Tenth Circuit made a contrary decision in Trujillo v. Board of County Commissioners.(fn11)
Espinoza v. O'Dell allowed a § 1983 claim by the heirs of a victim of a police shooting without a showing that the police had specifically intended to disrupt the plaintiff's right to an ongoing family relationship. Trujillo held that such an intent must be shown. In her concurring opinion, Colorado Supreme Court Justice Mullarkey pointed out that state courts must follow the "majority" federal rule on an issue regardless of the position taken by the Tenth Circuit.
Our decision ... is consistent with the majority federal rule.... Although we have the power to reconsider our prior decision, there is no compelling reason to do so and I would decline to modify our decision in Espinoza v. O'Dell.(fn12)
As a result, a class of § 1983 claims which may be heard in state court may not be heard in the federal district court.
Because § 1983 provides a remedy only when rights have been deprived under color of state law, defendants in § 1983 cases are most often government officials, government employees and entities of local government. State courts, however, have imposed several significant limitations on who might properly be made a defendant.
The U.S. Supreme Court has long held that state government, or a state level governmental entity, cannot be sued in federal court due to the Eleventh Amendment.(fn13) Just recently, the Court determined, in Wills v. State of Michigan Police Department,(fn14) that Congress could not have intended states to be subject to § 1983 because Congress wanted the states to be immune in state court just as those states are immune in federal court.(fn15) Therefore, neither the state of Colorado nor its entities can be made a defendant in a § 1983 damages claim in either state or federal court.
Will does allow state officials to be sued for prospective relief only. This is consistent with Oten v. Colorado Board of Social Services,(fn16) where the Colorado Court of Appeals applied U.S. Supreme Court decisions to find that the state can be sued for injunctive or other prospective relief by naming a state official as a defendant in his or her official capacity.(fn17) As long as the state official sued is "the executive officer who is primarily responsible for implementing or enforcing" the provisions of the state statute or practice which is being attacked, that official "is the proper party defendant in an official capacity suit."(fn18) The defendant did not have to be the one adopting the policy or practice. He or she need only be the one charged with implementation. Therefore, for example, the Director of the State Department of Social Services, not the Board of Social Services, would be the proper defendant in a suit attacking policies of the Board.
Despite the fact that a state may not be sued under § 1983 for damages, as opposed to injunctive relief, the state will be directly responsible for paying an award of attorney's fees and costs awarded to a prevailing plaintiff in an "official capacity" lawsuit.(fn19) In Duran v. Lamm,(fn20) the Court of Appeals determined that, at the stage where fees were being awarded and collected, a plaintiff could add the state controller and treasurer as parties, if necessary, to obtain a court order directing those officials to pay a judgment for fees.
There is no similar limitation in naming a local governmental entity as a defendant. In Montoya v. City of Colorado Springs,(fn21) however, the Court of Appeals followed U.S. Supreme Court rulings and held that a governmental entity is not liable under § 1983 for the actions of its employees by application of the doctrine of respondeat superior.(fn22) The governmental entity is only liable for its own actions. In Montoya, the plaintiff alleged that, although he had scored higher on tests and objective rankings, he was passed over for promotion in the city fire department in favor of the fire chief's son. The district court granted the defendant city a summary judgment on the plaintiff's § 1983 claim.
The Court of Appeals reversed, stating that Montoya could maintain a claim against the city by producing evidence to establish one of two different facts. First, he could establish that the city council had established a "policy" or customary method of proceeding which led to the denial of his rights to equal protection. Second, he could show that the...
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