Local Government and Constitutional Torts: in the Georgia Courts - R. Perry Sentell, Jr.

• Publication year: 1997

SPECIAL CONTRIBUTIONS

Local Government and Constitutional Torts: In the Georgia Courtsby R. Perry Sentell, Jr.^*

I. Introduction

The concept of governmental immunity from civil responsibility has long troubled many. An ingredient of this country's common law heritage, the concept nevertheless yields the epitome in philosophic face-offs. On the one hand, we inherently disavow governmental divinity: we subscribe to a rule-of-law demand that government restores what it destroys. On the other hand, we recognize that government's essential mission is unique and involuntary: we understand that a strictly private-sector accounting may well imperil government's public performance. Traditionally, neither position has completely prevailed, and legal history unfolds a striking account of accommodation.

None of the accounts is more striking than that originating with the United States' Forty-Second Congress, a legislature operating against the immediate background of the Civil War. That Congress, on April 20, 1871, enacted legislation casting civil liability upon "persons" who, under state auspices, deprive others of federally granted rights. In this remarkable fashion, the "Civil Rights Act of 1871"¹ amalgamated state tort law and violations of the Federal Constitution.²

In 1978, more than a century after the statute's enactment, the United States Supreme Court abruptly applied it to local governments.³ Since that decision, "constitutional torts" have assumed high profile in efforts to jettison local government immunity. These efforts proceed in all states in both federal and state courts.

Georgia local governments have thus now experienced almost twenty years of "constitutional tort" litigation. The time is appropriate, therefore, for appraising that litigation's impact upon the state's traditional local government tort immunity. Because such appraisals typically emphasize federal law, state cases are often neglected. This Article strives to remedy that neglect by marking the "constitutional tort occasion" in the Georgia appellate courts.

II. Background

A. Exposition

The origins are familiar, and the way is well traveled.⁴ In 1871 a distraught national Congress, seeking "to enforce the provisions of the Fourteenth Amendment,"⁵ enacted the genesis legislation. That statute, the "Civil Rights Act of 1871,"⁶ encompassed the epic declaration later codified as 42 U.S.C. Sec. 1983:

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 . . . .⁷

Following enactment, however, this declaration of civil responsibility suffered decades of dormancy.⁸ Indeed, the United States Supreme Court discovered the statute's viability only in 1961, and then only in a significantly limited context. In the foundational case of Monroe v. Pape,⁹ the Court declared the statute applicable on behalf of citizens allegedly mistreated by thirteen Chicago police officers.¹⁰ That applicability ran, however, only against the officers themselves; as for the municipality, the Court in Monroe was unanimous: "[W]e hold that a municipal corporation is not a 'person' within the meaning of [Section] 1983 . . . ."^u In 1961, as in 1871, therefore, local governments remained free from Section 1983's imposition of civil responsibility.¹²

Seventeen years later, the Court came full circle. In 1978 in the legendary setting of Monell v. Department of Social Services,¹³ the Supreme Court reversed its course of 107 years. A majority of the Court in Monell upheld complaints charging a municipality with forcing premature leaves of absence upon its pregnant employees.¹⁴ Expressly overruling its decision in Monroe,¹⁵ the Court undertook a "fresh analysis" of Section 1983's legislative history.¹⁶ That analysis, the Court announced, "compels the conclusion that Congress did intend municipalities and other local government units to be included among those persons to whom [Section] 1983 applies."¹⁷

Basic applicability declared, the Court in Monell turned more particularly to the statute's coverage. On the one hand, Section 1983 covered local government action that "implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated."¹⁸ Likewise covered were "deprivations visited pursuant to governmental 'custom' even though such a custom has not received formal approval through the body's official decisionmaking channels."¹⁹ On the other hand, the Court delineated, "a municipality cannot be held liable solely because it employs a tortfeasor—or, in other words, a municipality cannot be held liable under [Section] 1983 on a respondeat superior theory."²⁰ In summary, the Court asserted, "it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under [Section] 1983."²¹ As crafted, Monell's precept of coverage plunged American local governments into the fathomless sea of "constitutional torts."²²

B. Development

Amidst the confusion wrought by Monell's abrupt repudiation of the past, uncertainty reigned supreme. One resulting doubt revolved around forum—the appropriate court(s) for resolving a Section 1983 "action," "suit," or "proceeding."²³ Neither the statute itself, nor (to this point) the Supreme Court, had identified the judicial site for launching these newly authorized complaints against local governments. Perhaps it was simply assumed that federally declared rights, anchored in the Federal Constitution and "laws," would naturally be pursued in the federal courts. What implications did such a presumption hold for Section 1983 claimants desiring to sue local governments in state courts? The quandary begged for clarification.

Two years following its decision in Monell, the Court paid the forum issue at least passing attention in Martinez v. California.²⁴ There, the Court referred to a "general rule" that there is no reason why a congressionally-created right "'should not be enforced, if not provided otherwise by some act of Congress, by a proper action in a State court.'"²⁵ Yet, the Court also conceded that it had never considered "whether a state must entertain a claim under [Section] 1983."²⁶ Somewhat tentatively, the Court in Martinez concluded as follows: "[W]here the same type of claim, if arising under state law, would be enforced in the state courts, the state courts are generally not free to refuse enforcement of the federal claim."²⁷ In any event, by 1990 the Court could look back upon a general practice that had largely rendered the issue academic. "Virtually every State has expressly or by implication opened its courts to Section 1983 actions and there are no state court systems that refuse to hear Section 1983 cases."²⁸

Under both presumption and practice, it thus developed that the once impotent Civil Rights Act of 1871 had worked a unique modern revolution in the law of local government tort liability. Equally impressive, moreover, the progeny of that revolution proceeded in parallel fashion and on dual judicial fronts. The coexistence of those fronts held the promise of continuing analytical intrigue.

Not surprisingly, legal scholarship has largely attended the federal front. Exuding a rather typical preoccupation, that scholarship has relentlessly pursued Section 1983 in both the Supreme Court and in the lower federal courts throughout the country.²⁹ Those courts, the literature confirms, have witnessed a myriad of Section 1983 challenges to the tort immunity traditionally claimed by American local governments. Obviously, lawyers in all states must be aware of that phenomenon.

Each of those lawyers also needs the additional Section 1983 anthology evolved by his or her respective state courts. As a concomitant development, those epochs constitute a necessary part of the Monell progeny. With that progeny now fast approaching its twenty-year milestone, any account omitting the state court perspective offers a grievously incomplete reflection.

III. Georgia: At the Outset (1978-1984)

Whatever the hesitations over the role of state courts in Section 1983 litigation, Georgia harbored none of them. Although Monell promptly racked complete dissention upon the Georgia Court of Appeals, none of the disagreement went to jurisdiction. In City of Atlanta v. Fry,³⁰ former police officers "alluded" to Monell in complaining of demotions resulting from their exercise of First Amendment rights.³¹ In response, a bare majority of the court summarily foreclosed the issue: there simply was "no evidence that the appellees' demotion came about as the result of the enforcement of an official city policy."³² Taking strong issue, a four-judge dissent urged plaintiffs' "civil rights" to protect against "being capriciously transferred without cause to a less attractive and lower paying job from one in which they were paid at least partly by federal funds."³³ As for evidence of municipal "policy," the dissent was equally adamant: "Whatever 'official city policy' there may be in demoting policemen for undue relationships with newspaper reporters, it can only be surmised through the actions of the officer in charge of these departments."³⁴

Fry thus constituted Georgia's initial, and immediate, state court fallout from Monell. Divided as closely as possible, the court of appeals came to analytical blows over the Supreme Court's "policy or custom" concept. "Policy," the majority insisted, must trigger plaintiffs' deprivations and must appear in plaintiffs' evidence.³⁵ "Deprivation,"...