Less is more: decluttering the state action doctrine.

• Author: Brown, Julie K.
• Position: NOTES

Wickersham v. City of Columbia (1)

1. INTRODUCTION

   Constitutional restrictions are not one-size-fits-all, restricting all conduct equally. Instead, the United States Constitution creates a schism between governmentally controlled domains and privately controlled sectors. The former are public actors, present throughout the vertical structure of government, and subject to Constitutional restrictions. (2) The latter are private actors, unburdened by Constitutional rules, with a degree of freedom and exclusionary power unavailable to governmental entities. (3) But in this "'golden age of privatization,'" where private entities increasingly perform public duties with governmental backing, the dividing line between public and private actors is far from clear. (4)

   The distinction between public and private actors, and the resulting effects on Constitutional claims, is commonly known as the "state action doctrine." (5) This doctrine is often seen as a threshold test, ensuring that a governmental wrongdoing is the basis for a Constitutional claim, even before the merits of a claim are considered. (6) In use since 1875, the application of the state action doctrine has been inconsistent and choppy at best, with the Supreme Court handing down a variety of state action determinative "tests." (7) This situation has prompted commentators to call this doctrine, among other things, "dysfunctional" (8) and "a conceptual disaster area," with Justice Black referring to the United States Supreme Court's jurisprudence on the issue as "a torchless search for a way out of a damp echoing cave." (9)

   The focus of this law summary is the tenuous distinction between state and private actors, examining both the various state action determinative tests proffered by the United States Supreme Court as well as the circuit courts' application of these tests. Although the Supreme Court has dealt extensively with the issue of state action, and circuit courts have faithfully applied the highest court's tests, problems remain. Many of the Supreme Court's tests are very narrow, proffered in response to carefully defined factual situations. Therefore, whether explicitly in the opinion or a result of later interpretation, most of these tests can only be used in very particular instances. Thus, courts must not only pick the correct test from the multitude of options, but then must contort the narrow test to the facts of the given case.

   As circuit courts continue to pick-and-choose which state action test to apply, a divergence of the circuits is imminent. This mayhem, however, is unnecessary, and the time has yet again arrived for the Supreme Court to grapple with the state action doctrine. The Supreme Court should clarify the scope and application of each "test," tender a clear standard for determining state action, and remove the aura of mystery that surrounds the state action doctrine, particularly in the context of the recent Eighth Circuit decision, Wickersham v. City of Columbia. (10)

2. LEGAL BACKGROUND

   1. Constitutional "State Action" Requirement

      The main purpose of the "Constitution is to provide a framework for national republican self-governance." (11) The Equal Protection Clause of the Fourteenth Amendment does not protect everyone equally--it only protects an individual against abridgement of his/her Constitutional rights at the hands of a state actor. (12) This requirement of state action, in effect, guarantees that individual freedoms are protected from federal law and federal judicial power. (13) According to the United States Supreme Court, "[o]ne great object of the Constitution is to permit citizens to structure their private relations as they choose subject only to the constraints of statutory or decisional law." (14) By focusing the judiciary's attention on state action, this doctrine limits the courts' power to regulate private interests and ensures that states and state actors respect individual liberties. (15) Regardless of "[w]hether this is good or bad policy, it is a fundamental fact of our political order." (16)

      The determination of a party's status as either private and, therefore, immune from constitutional claims, or public and subject to constitutional restrictions, is often viewed as a threshold question, preempting the court's consideration of the merits of the case. (17) While determining whether a wrongdoer is a governmental actor seems simple, actually distinguishing between public and private actors "has proven elusive in application." (18) Ultimately, a finding of state action directly affects the remedies available to the injured party. (19)

   2. "Under the Color of State Law" in 42 U.S.C. section 1983

      Title 42 U.S.C. section 1983 imposes liability on every person who, under the color of a statute, ordinance, or regulation, causes the deprivation of another's federally protected right. (20) Intended as a damage remedy for those whose civil rights are violated, section 1983 applies only where deprivations ages in question. (23) Acting with the "authority of [the] state" applies to both governmental entities and private parties acting in concert with state officers to deprive another of their constitutionally guaranteed liberty. (24)

      Coinciding with the section 1983 "color of state law" requirement is the Fourteenth Amendment's "state action" requirement. (25) Remedies for violations of section 1983 and the Fourteenth Amendment differ, with the former providing civil relief and the latter providing equitable relief. With most parties instituting suits interested in both types of remedies, section 1983 issues are presented in many "state action" cases. According to the Supreme Court in Lugar v. Edmondson Oil Co., the scope of section 1983 is slightly broader than the Fourteenth Amendment's "state action" requirement. (26) For the most part, however, liability under section 1983's "color of state law" requirement is equivalent to that of state action under the Fourteenth Amendment. (27)

   3. State Action Tests from the United States Supreme Court

      State action generally arises out of a person's acting on behalf of the government or performance of a duty that is traditionally carried out by the state. (28) The Supreme Court noted that the determination of whether conduct is private or amounts to "state action" is not an easy question (29) and there is no singular fact that is a "necessary condition ... for finding state action." (30) The important inquiry, therefore, is the interplay of the government and private actions in light of the particular facts of a case. (31) As a result of this difficult balancing, the United States Supreme Court has created at least seven distinct tests to help lower courts deal with state action, (32) despite the fact that the Supreme Court claims not to offer "tests" or even to categorize its state action decisions. (33)

      The first of these tests is the Public Function Test. This test requires that "the private entity exercise powers which are traditionally exclusively reserved to the state, such as holding elections or eminent domain." (34) In order to find state power, the function served by the private group must be that which is traditionally and exclusively reserved to the state; the mere fact that the public is benefited by a private action is insufficient. (35) The Supreme Court has found "exclusive state power" to be a very narrow category. In fact, only the administration of elections, (36) operation of a company town, (37) eminent domain, (38) peremptory challenges in jury selection, (39) and, in very limited situations, the operation of a municipal park have qualified as such. (40) However, the courts must not take the "exclusive" power beyond the narrow context in which the rule was created. (41)

      Second, the State Compulsion Test requires that a state exercise such coercive power that the "choice must in law be deemed to be that of the State." (42) This test is met when a state encourages or coerces a private party to engage in the challenged conduct. (43) Unlike the Public Function Test which is limited to a few specific situations, state compulsion is based on the degree of the state's influence over the private actor and, therefore, its potential application is much broader than the public function test. As Justice Souter noted in Brentwood Academy v. Tennessee Secondary School Athletic Association, coercion and encouragement refer to the "kinds of facts that can justify characterizing an ostensibly private action as public instead." (44) Therefore, the major question that courts analyze under this test is whether or not the private entity had a choice to act or refrain from acting. (45)

      One of the most frequently used tests is the Nexus Test. Here, "the action of a private party constitutes state action when there is a sufficiently close nexus between the state and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the state itself." (46) Despite the inherently fact-bound nature of state action, (47) the Supreme Court stipulated that any one of the following factors, without more, are insufficient to find a close nexus: 1) state regulation, no matter its extent; (48) 2) public funding of a private group; (49) 3) private use of public property; (50) 4) minor presence of public officials on the board of a private entity; (51) 5) the mere approval or acquiescence of the state in private activity; (52) and 6) utilization of public services by private actors. (53) In combination, however, these factors may form a sufficient basis for a finding of state action.

      The fourth possible state action test, State Agency, occurs when a private entity is controlled by a state agency. (54) In these very limited cases, when a state agency acts in a discriminatory manner, the agency's actions are imputed directly to the state and give rise to "state action" sufficient to support a constitutional claim. (55) Much as public...