VI. Methodology of State Court Section 1983 Litigation

• Library: Sword and Shield: A Practical Approach to Section 1983 Litigation (ABA) (2015 Ed.)

VI. METHODOLOGY OF STATE COURT SECTION 1983 LITIGATION

As the volume of § 1983 state court litigation increases, state courts have had to address a number of novel issues. State courts that entertain § 1983 actions tend to apply familiar state policies, including state rules of practice and procedure. This application of state policies raises a range of discrete state and federal law issues, including whether the state policies apply to § 1983 claims as a matter of state law and, if so, whether such applications are consistent with federal law.

The Supreme Court requires state courts to use federal standards to define the elements of the § 1983 cause of action.¹³¹ States may not go beneath this federal floor to reject federal policies on such matters as the available immunities, the absence of exhaustion requirements, and the availability of attorneys' fees to prevailing parties,¹³² nor may states adopt policies that discriminate against or burden § 1983 actions.¹³³ On the other hand, when the policies applicable to federal court § 1983 litigation are not derived from § 1983 itself, such as with the jury unanimity requirement of the Seventh Amendment or the case or controversy requirement of Article III, state courts are generally free to follow their own policies.¹³⁴

A. The Meaning of State Law

State courts must initially determine whether state law applies to § 1983 actions. By addressing this issue first, state courts may sometimes be able to avoid reaching federal issues. For example, in Terry v. Kolski,¹³⁵ the Wisconsin Supreme Court relied on principles of state court jurisdiction to hold that state law required small claims courts to entertain § 1983 actions otherwise within their jurisdiction. The Terry court therefore had no reason to reach the ultimate question of whether federal law required the same result.¹³⁶

In many cases, however, state statutes are not clear as to whether they apply to § 1983 actions, and this lack of clarity raises difficult issues of state statutory construction. In such cases, state courts often assume that state policies apply to § 1983 claims as a matter of state law.¹³⁷ An alternative approach to this threshold state-law issue is followed by the Supreme Judicial Court of Massachusetts. In Mellinger v. Town of West Springfield,¹³⁸ the court adopted a "clear statement rule" under which it refused to apply the Massachusetts notice-of-claim requirement to § 1983 claims "in the absence of a clear legislative statement that § 1983 claimants must comply" with the state policy.¹³⁹ Because state legislators rarely have § 1983 or other federal causes of action in mind when they adopt policies to govern state court litigation, the Massachusetts rule of statutory construction seems more sound than a rule that presumptively applies state substantive policies (or state procedural policies that have a substantive impact) to federal causes of action.

B. A Federal Definition of Section 1983

When states voluntarily open their courts to federal causes of action, they must give plaintiffs "the benefit of the full scope of these [federally created] rights."¹⁴⁰ This principle requires state courts to apply the federal definition of the § 1983 cause of action.¹⁴¹ In Howlett v. Rose,¹⁴² the Supreme Court applied this principle and rejected the availability of state sovereign immunity as a defense to a § 1983 suit against a local school board. Noting that "[t]he elements of, and the defenses to, a federal cause of action are defined by federal law,"¹⁴³ the Court made clear the primacy of federal standards in defining § 1983:

[A]s to persons that Congress subjected to liability, individual States may not exempt such persons from federal liability by relying on their own common-law heritage. If we were to uphold the immunity claim in this case, every State would have the same opportunity to extend the mantle of sovereign immunity to "persons" who would otherwise be subject to § 1983 liability. States would then be free to nullify for their own people the legislative decisions that Congress has made on behalf of all the People.¹⁴⁴

In Shaw v. Leatherberry,¹⁴⁵ the Wisconsin Supreme Court held that the middle burden of proof (i.e., the clear and convincing standard) does not as a matter of federal law apply to a § 1983 excessive force claim against police officers. Wisconsin applies this heightened burden to state-created excessive force claims against police officers, but the state court characterized the burden of proof as "substantive" and held that state courts entertaining § 1983 actions were required to follow federal substantive law and use the preponderance of the evidence standard.

C. The Nondiscrimination Principle

The Supreme Court has relied on the nondiscrimination principle to limit the ability of state courts to exclude § 1983 actions from their courts.¹⁴⁶ This jurisdictional principle, however, also prevents states from singling out federal causes of action and applying policies not followed in analogous state-created actions.¹⁴⁷ Moreover, in Felder v. Casey,¹⁴⁸ the Court broadened the nondiscrimination principle by treating as discriminatory policies that the state imposed "only upon those who seek redress for injuries resulting from the use or misuse of governmental authority."¹⁴⁹

D. State Policies and Burdens on Section 1983 Litigation

The purposes of § 1983 are compensation and deterrence.¹⁵⁰ State policies that are inconsistent with those purposes, or that burden the litigation of § 1983 claims, should be rejected in § 1983 litigation in both state and federal courts. Thus, federal law bars the use of state policies in state court § 1983 litigation even when state courts apply those policies evenhandedly to both state and federal causes of action.

In Felder, the Court gave content to the compensation purpose of § 1983 by holding that state policies that limited the right of recovery for the purpose of minimizing governmental liability were inconsistent with federal law.¹⁵¹ In addition, the Court held that state policies applicable only...