U.S. Supreme Court
SCHEUER v. RHODES, 416 U.S. 232 (1974)
416 U.S. 232
SCHEUER, ADMINISTRATRIX v. RHODES, GOVERNOR OF OHIO,
ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT.
No. 72-914.
Argued December 4, 1973.
Decided April 17, 1974. *
[ Footnote * ] Together
with No. 72-1318, Krause, Administrator, et al. v.
Rhodes, Governor of Ohio, et al., also on certiorari to
the same court.
Petitioners, the personal representatives of the
estates of students who were killed on the campus of a
state-controlled university, brought these damages
actions under 42 U.S.C. 1983 against the Governor, the
Adjutant General of the Ohio National Guard, various
other Guard officers and enlisted members, and the
university president, charging that those officials,
acting under color of state law, "intentionally,
recklessly, willfully and wantonly" caused an
unnecessary Guard deployment on the campus and ordered
the Guard members to perform allegedly illegal acts
resulting in the students' deaths. The District Court
dismissed the complaints for lack of jurisdiction
without the filing of any answer and without any
evidence other than the Governor's proclamations and
brief affidavits of the Adjutant General and his
assistant, holding that respondents were being sued in
their official capacities and that the actions were
therefore in effect against the State and barred by the
Eleventh Amendment. The Court of Appeals affirmed on
that ground and on the alternative ground that the
common-law doctrine of executive immunity was absolute
and barred action against respondent state officials.
Held:
1. The Eleventh Amendment does not in some
circumstances bar an action for damages against a
state official charged with depriving a person of a
federal right under color of state law, and the
District Court acted prematurely and hence
erroneously in dismissing the complaints as it did
without affording petitioners any opportunity by
subsequent proof to establish their claims. Pp.
235-238.
2. The immunity of officers of the executive
branch of a state government for their acts is not
absolute but qualified and of varying degree,
depending upon the scope of discretion and
[416
U.S. 232, 233] responsibilities of the
particular office and the circumstances existing at
the time the challenged action was taken. Pp.
238-249.
471 F.2d 430, reversed and remanded.
BURGER, C. J., delivered the opinion of the Court, in
which all Members joined except DOUGLAS, J., who took no
part in the decision of the cases.
Michael E. Geltner argued the cause for petitioner in
No. 72-914. With him on the briefs were Leonard J.
Schwartz, Melvin L. Wulf, Joel M. Gora, Nelson G. Karl,
Niki Z. Schwartz, and Walter S. Haffner. Steven A.
Sindell argued the cause for petitioners in No. 72-1318.
With him on the brief were Joseph M. Sindell and Joseph
Kelner.
Charles E. Brown argued the cause for respondents in
No. 72-914. With him on the brief were Robert F. Howarth,
Jr., Delmar Christensen, and C. D. Lambros. R. Brooke
Alloway argued the cause for respondents in No. 72-1318.
With him on the brief was John M. McElroy.Fn
Fn [416
U.S. 232, 233] Briefs of amici curiae
urging reversal in both cases were filed by Mario G.
Obledo and Sanford Jay Rosen for the Mexican American
Legal Defense and Educational Fund, and by David E.
Engdahl for the National Council of the Churches of
Christ in the U.S. A. et al. Carl J. Character filed a
brief for the National Bar Assn. as amicus curiae urging
reversal in No. 72-1318.
MR. CHIEF JUSTICE BURGER delivered the opinion of the
Court.
We granted certiorari 1
in these cases to resolve whether the District Court
correctly dismissed civil damage actions, brought under
42 U.S.C. 1983, on the ground that these actions were,
as a matter of law, against the State of Ohio, and hence
barred by the
[416 U.S. 232, 234] Eleventh
Amendment to the Constitution and, alternatively, that
the actions were against state officials who were immune
from liability for the acts alleged in the complaints.
These cases arise out of the same period of alleged
civil disorder on the campus of Kent State University in
Ohio during May 1970 which was before us, in another
context, in Gilligan v. Morgan,
413 U.S. 1 (1973).
In these cases the personal representatives of the
estates of three students who died in that episode seek
damages against the Governor, the Adjutant General, and
his assistant, various named and unnamed officers and
enlisted members of the Ohio National Guard, and the
president of Kent State University. The complaints in
both cases allege a cause of action under the Civil
Rights Act of 1871, 17 Stat. 13, now 42 U.S.C. 1983.
Petitioner Scheuer also alleges a cause of action under
Ohio law on the theory of pendent jurisdiction.
Petitioners Krause and Miller make a similar claim,
asserting jurisdiction on the basis of diversity of
citizenship. 2
The District Court dismissed the complaints for lack
of jurisdiction over the subject matter on the theory
that these actions, although in form against the named
individuals, were, in substance and effect, against the
State of Ohio and thus barred by the Eleventh Amendment.
The Court of Appeals affirmed the action of the District
Court, agreeing that the suit was in legal effect one
against the State of Ohio and, alternatively, that the
common-law doctrine of executive immunity barred action
[416 U.S.
232, 235] against the state officials who
are respondents here. 471 F.2d 430 (1972). We are
confronted with the narrow threshold question whether
the District Court properly dismissed the complaints. We
hold that dismissal was inappropriate at this stage of
the litigation and accordingly reverse the judgments and
remand for further proceedings. We intimate no view on
the merits of the allegations since there is no evidence
before us at this stage.
I
The complaints in these cases are not identical but
their thrust is essentially the same. In essence, the
defendants are alleged to have "intentionally,
recklessly, willfully and wantonly" caused an
unnecessary deployment of the Ohio National Guard on the
Kent State campus and, in the same manner, ordered the
Guard members to perform allegedly illegal actions which
resulted in the death of plaintiffs' decedents. Both
complaints allege that the action was taken "under color
of state law" and that it deprived the decedents of
their lives and rights without due process of law.
Fairly read, the complaints allege that each of the
named defendants, in undertaking such actions, acted
either outside the scope of his respective office or, if
within the scope, acted in an arbitrary manner, grossly
abusing the lawful powers of office.
The complaints were dismissed by the District Court
for lack of jurisdiction without the filing of an answer
to any of the complaints. The only pertinent
documentation 3 before the
court in addition to the complaints were two
proclamations issued by the respondent
[416 U.S.
232, 236] Governor. The first proclamation
ordered the Guard to duty to protect against violence
arising from wildcat strikes in the trucking industry;
the other recited an account of the conditions
prevailing at Kent State University at that time. In
dismissing these complaints for want of subject matter
jurisdiction at that early stage, the District Court
held, as we noted earlier, that the defendants were
being sued in their official and representative
capacities and that the actions were therefore in effect
against the State of Ohio. The primary question
presented is whether the District Court acted
prematurely and hence erroneously in dismissing the
complaints on the stated ground, thus precluding any
opportunity for the plaintiffs by subsequent proof to
establish a claim.
When a federal court reviews the sufficiency of a
complaint, before the reception of any evidence either
by affidavit or admissions, its task is necessarily a
limited one. The issue is not whether a plaintiff will
ultimately prevail but whether the claimant is entitled
to offer evidence to support the claims. Indeed it may
appear on the face of the pleadings that a recovery is
very remote and unlikely but that is not the test.
Moreover, it is well established that, in passing on a
motion to dismiss, whether on the ground of lack of
jurisdiction over the subject matter or for failure to
state a cause of action, the allegations of the
complaint should be construed favorably to the pleader.
"In appraising the sufficiency of the complaint
we follow, of course, the accepted rule that a
complaint should not be dismissed for failure to
state a claim unless it appears beyond doubt that
the plaintiff can prove no set of facts in support
of his claim which would entitle him to relief."
Conley v. Gibson,
355 U.S. 41, 45 -46 (1957) (footnote omitted).
[416
U.S. 232, 237]
See also Gardner v. Toilet Goods Assn.,
387 U.S. 167, 172 (1967).
II
The Eleventh Amendment to the Constitution of the
United States provides: "The Judicial power of the
United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State .
. . ." It is well established that the Amendment bars
suits not only against the State when it is the named
party but also when it is the party in fact. Edelman v.
Jordan,
415 U.S. 651 (1974); Poindexter v. Greenhow,
114 U.S. 270, 287 (1885); Cunningham v. Macon &
Brunswick R. Co.,
109 U.S. 446 (1883). Its applicability "is to be
determined not by the mere names of the titular parties
but by the essential nature and effect of the
proceeding, as it appears from the entire record." Ex
parte New York,
256 U.S. 490, 500 (1921).
However, since Ex parte Young,
209 U.S. 123 (1908), it has been settled that the
Eleventh Amendment provides no shield for a state
official confronted by a claim that he had deprived
another of a federal right under the color of state law.
Ex parte Young teaches that when a state officer acts
under a state law in a manner violative of the Federal
Constitution, he
"comes into conflict with the superior authority
of that Constitution, and he is in that case
stripped of his official or representative character
and is subjected in his person to the consequences
of his individual conduct. The State has no power to
impart to him any immunity from responsibility to
the supreme authority of the United States." Id., at
159-160. (Emphasis supplied.)
Ex parte Young, like Sterling v. Constantin,
287 U.S. 378 (1932), involved a question of the
federal courts'
[416 U.S. 232, 238]
injunctive power, not, as here, a claim for monetary
damages. While it is clear that the doctrine of Ex parte
Young is of no aid to a plaintiff seeking damages from
the public treasury, Edelman v. Jordan, supra; Kennecott
Copper Corp. v. State Tax Comm'n,
327 U.S. 573 (1946); Ford Motor Co. v. Dept. of
Treasury,
323 U.S. 459 (1945); Great Northern Life Insurance
Co. v. Read,
322 U.S. 47 (1944), damages against individual
defendants are a permissible remedy in some
circumstances notwithstanding the fact that they hold
public office. Myers v. Anderson,
238 U.S. 368 (1915). See generally Monroe v. Pape,
365 U.S. 167 (1961); Moor v. County of Alameda,
411 U.S. 693 (1973). In some situations a damage
remedy can be as effective a redress for the
infringement of a constitutional right as injunctive
relief might be in another.
Analyzing the complaints in light of these
precedents, we see that petitioners allege facts that
demonstrate they are seeking to impose individual and
personal liability on the named defendants for what they
claim - but have not yet established by proof - was a
deprivation of federal rights by these defendants under
color of state law. Whatever the plaintiffs may or may
not be able to establish as to the merits of their
allegations, their claims, as stated in the complaints,
given the favorable reading required by the Federal
Rules of Civil Procedure, are not barred by the Eleventh
Amendment. Consequently, the District Court erred in
dismissing the complaints for lack of jurisdiction.
III
The Court of Appeals relied upon the existence of an
absolute "executive immunity" as an alternative ground
for sustaining the dismissal of the complaints by the
District Court. If the immunity of a member of the
executive
[416 U.S. 232, 239] branch is absolute and
comprehensive as to all acts allegedly performed within
the scope of official duty, the Court of Appeals was
correct; if, on the other hand, the immunity is not
absolute but rather one that is qualified or limited, an
executive officer may or may not be subject to liability
depending on all the circumstances that may be revealed
by evidence. The concept of the immunity of government
officers from personal liability springs from the same
root considerations that generated the doctrine of
sovereign immunity. While the latter doctrine - that the
"King can do no wrong" - did not protect all government
officers from personal liability, the common law soon
recognized the necessity of permitting officials to
perform their official functions free from the threat of
suits for personal liability. 4
This
[416 U.S. 232, 240] official immunity
apparently rested, in its genesis, on two mutually
dependent rationales: 5 (1)
the injustice, particularly in the absence of bad faith,
of subjecting to liability an officer who is required,
by the legal obligations of his position, to exercise
discretion; (2) the danger that the threat of such
liability would deter his willingness to execute his
office with the decisiveness and the judgment required
by the public good.
In this country, the development of the law of
immunity for public officials has been the product of
constitutional provision as well as legislative and
judicial processes. The Federal Constitution grants
absolute immunity to Members of both Houses of the
Congress with respect to any speech, debate, vote,
report, or action done in session. Art. I, 6. See Gravel
v. United States,
408 U.S. 606 (1972); United States v. Brewster,
408 U.S. 501 (1972); and Kilbourn v. Thompson,
103 U.S. 168 (1881). This provision was intended to
secure for the Legislative Branch of the Government the
freedom from executive and judicial encroachment which
[416 U.S.
232, 241] had been secured in England in
the Bill of Rights of 1689 and carried to the original
Colonies. 6 In United States
v. Johnson,
383 U.S. 169, 182 (1966), Mr. Justice Harlan noted:
"There is little doubt that the instigation of
criminal charges against critical or disfavored
legislators by the executive in a judicial forum was
the chief fear prompting the long struggle for
parliamentary privilege in England and, in the
context of the American system of separation of
powers, is the predominate thrust of the Speech or
Debate Clause."
Immunity for the other two branches - long a creature of
the common law - remained committed to the common law.
See, e. g., Spalding v. Vilas,
161 U.S. 483, 498 -499 (1896).
Although the development of the general concept of
immunity, and the mutations which the underlying
rationale has undergone in its application to various
positions are not matters of immediate concern here, it
is important to note, even at the outset, that one
policy consideration seems to pervade the analysis: the
public interest requires decisions and action to enforce
laws for the protection of the public. Mr. Justice
Jackson expressed this general proposition succinctly,
stating "it is not a tort for government to govern."
Dalehite v. United States,
346 U.S. 15, 57 (1953) (dissenting opinion). Public
officials, whether governors, mayors or police,
legislators or judges, who fail to make decisions when
[416 U.S.
232, 242] they are needed or who do not act
to implement decisions when they are made do not fully
and faithfully perform the duties of their offices.
7 Implicit in the idea that
officials have some immunity - absolute or qualified -
for their acts, is a recognition that they may err. The
concept of immunity assumes this and goes on to assume
that it is better to risk some error and possible injury
from such error than not to decide or act at all. In
Barr v. Matteo,
360 U.S. 564, 572 -573 (1959), the Court observed,
in the somewhat parallel context of the privilege of
public officers from defamation actions: "The privilege
is not a badge or emolument of exalted office, but an
expression of a policy designed to aid in the effective
functioning of government." See also Spalding v. Vilas,
161 U.S., at 498 -499.
For present purposes we need determine only whether
there is an absolute immunity, as the Court of Appeals
determined, governing the specific allegations of the
complaint against the chief executive officer of a
State, the senior and subordinate officers and enlisted
personnel of that State's National Guard, and the
president of a state-controlled university. If the
immunity is qualified,
[416 U.S. 232, 243] not
absolute, the scope of that immunity will necessarily be
related to facts as yet not established either by
affidavits, admissions, or a trial record. Final
resolution of this question must take into account the
functions and responsibilities of these particular
defendants in their capacities as officers of the state
government, as well as the purposes of 42 U.S.C. 1983.
In neither of these inquiries do we write on a clean
slate. It can hardly be argued, at this late date, that
under no circumstances can the officers of state
government be subject to liability under this statute.
In Monroe v. Pape, supra, MR. JUSTICE DOUGLAS, writing
for the Court, held that the section in question was
meant "to give a remedy to parties deprived of
constitutional rights, privileges and immunities by an
official's abuse of his position."
365 U.S., at 172 . Through the Civil Rights
statutes, Congress intended "to enforce provisions of
the Fourteenth Amendment against those who carry a badge
of authority of a State and represent it in some
capacity, whether they act in accordance with their
authority or misuse it." Id., at 171-172.
Since the statute relied on thus included within its
scope the "`[m]isuse of power, possessed by virtue of
state law and made possible only because the wrongdoer
is clothed with the authority of state law,'" id., at
184 (quoting United States v. Classic,
313 U.S. 299, 326 (1941)), government officials, as
a class, could not be totally exempt, by virtue of some
absolute immunity, from liability under its terms.
Indeed, as the Court also indicated in Monroe v. Pape,
supra, the legislative history indicates that there is
no absolute immunity. Soon after Monroe v. Pape, Mr.
Chief Justice Warren noted in Pierson v. Ray,
386 U.S. 547 (1967), that the "legislative record
[of 1983] gives no clear indication that Congress meant
to abolish wholesale all common-law immunities," id., at
554. The Court had
[416 U.S. 232, 244]
previously recognized that the Civil Rights Act of 1871
does not create civil liability for legislative acts by
legislators "in a field where legislators traditionally
have power to act." Tenney v. Brandhove,
341 U.S. 367, 379 (1951). Noting that "[t]he
privilege of legislators to be free from arrest or civil
process for what they do or say in legislative
proceedings has taproots in the Parliamentary struggles
of the Sixteenth and Seventeenth Centuries," id., at
372, the Court concluded that it was highly improbable
that "Congress - itself a staunch advocate of
legislative freedom - would impinge on a tradition so
well grounded in history and reason by covert inclusion
in the general language . . ." of this statute. Id., at
376.
In similar fashion, Pierson v. Ray, supra, examined
the scope of judicial immunity under this statute.
Noting that the record contained no "proof or specific
allegation,"
386 U.S., at 553 , that the trial judge had "played
any role in these arrests and convictions other than to
adjudge petitioners guilty when their cases came before
his court," ibid., the Court concluded that, had the
Congress intended to abolish the common-law "immunity of
judges for acts within the judicial role," id., at 554,
it would have done so specifically. A judge's
"errors may be corrected on appeal, but he should
not have to fear that unsatisfied litigants may
hound him with litigation charging malice or
corruption. Imposing such a burden on judges would
contribute not to principled and fearless
decision-making but to intimidation." Ibid.
The Pierson Court was also confronted with whether
immunity was available to that segment of the executive
branch of a state government that is most frequently and
intimately involved in day-to-day contacts with the
citizenry and, hence, most frequently exposed to
situations which can give rise to claims under 1983 -
the local
[416 U.S. 232, 245] police officer. Mr.
Chief Justice Warren, speaking for the Court, noted that
the police officers
"did not defend on the theory that they believed in
good faith that it was constitutional to arrest the
ministers solely for using the [`white only']
waiting room. Rather, they claimed and attempted to
prove that . . . [they arrested them] solely for the
purpose of preventing violence. They testified, in
contradiction to the ministers, that a crowd
gathered and that imminent violence was likely. If
the jury believed the testimony of the officers and
disbelieved that of the ministers, and if the jury
found that the officers reasonably believed in good
faith that the arrest was constitutional, then a
verdict for the officers would follow even though
the arrest was in fact [without probable cause and]
unconstitutional." Id., at 557.
The Court noted that the "common law has never granted
police officers an absolute and unqualified immunity,"
id., at 555, but that "the prevailing view in this
country [is that] a peace officer who arrests someone
with probable cause is not liable for false arrest
simply because the innocence of the suspect is later
proved," ibid.; the Court went on to observe that a
"policeman's lot is not so unhappy that he must choose
between being charged with dereliction of duty if he
does not arrest when he has probable cause, and being
mulcted in damages if he does." Ibid. The Court then
held that
"the defense of good faith and probable cause, which
the Court of Appeals found available to the officers
in the common-law action for false arrest and
imprisonment, is also available to them in the
action under 1983." Id., at 557.
When a court evaluates police conduct relating to an
arrest its guideline is "good faith and probable cause."
[416 U.S.
232, 246] Ibid. In the case of higher
officers of the executive branch, however, the inquiry
is far more complex since the range of decisions and
choices - whether the formulation of policy, of
legislation, of budgets, or of day-to-day decisions - is
virtually infinite. In common with police officers,
however, officials with a broad range of duties and
authority must often act swiftly and firmly at the risk
that action deferred will be futile or constitute
virtual abdication of office. Like legislators and
judges, these officers are entitled to rely on
traditional sources for the factual information on which
they decide and act. 8 When
a condition of civil disorder in fact exists, there is
obvious need for prompt action, and decisions must be
made in reliance on factual information supplied by
others. While both federal and state laws plainly
contemplate the use of force when the necessity arises,
the decision to invoke military power has traditionally
been viewed with suspicion and skepticism since it often
involves the temporary suspension of some of our most
cherished rights - government by elected civilian
leaders, freedom of expression, of assembly, and of
association. Decisions in such situations are more
likely
[416 U.S. 232, 247] than not to arise in an
atmosphere of confusion, ambiguity, and swiftly moving
events and when, by the very existence of some degree of
civil disorder, there is often no consensus as to the
appropriate remedy. In short, since the options which a
chief executive and his principal subordinates must
consider are far broader and far more subtle than those
made by officials with less responsibility, the range of
discretion must be comparably broad. In a context other
than a 1983 suit, Mr. Justice Harlan articulated these
considerations in Barr v. Matteo, supra:
"To be sure, the occasions upon which the acts of
the head of an executive department will be
protected by the privilege are doubtless far broader
than in the case of an officer with less sweeping
functions. But that is because the higher the post,
the broader the range of responsibilities and
duties, and the wider the scope of discretion, it
entails. It is not the title of his office but the
duties with which the particular officer sought to
be made to respond in damages is entrusted - the
relation of the act complained of to `matters
committed by law to his control or supervision,'
Spalding v. Vilas, supra, at 498 - which must
provide the guide in delineating the scope of the
rule which clothes the official acts of the
executive officer with immunity from civil
defamation suits."
360 U.S., at 573 -574.
These considerations suggest that, in varying scope, a
qualified immunity is available to officers of the
executive branch of government, the variation being
dependent upon the scope of discretion and
responsibilities of the office and all the circumstances
as they reasonably appeared at the time of the action on
which liability is sought to be based. It is the
existence of reasonable grounds for the belief formed at
the time and in light
[416 U.S. 232, 248] of all
the circumstances, coupled with good-faith belief, that
affords a basis for qualified immunity of executive
officers for acts performed in the course of official
conduct. Mr. Justice Holmes spoke of this, stating:
"No doubt there are cases where the expert on the
spot may be called upon to justify his conduct later
in court, notwithstanding the fact that he had sole
command at the time and acted to the best of his
knowledge. That is the position of the captain of a
ship. But even in that case great weight is given to
his determination and the matter is to be judged on
the facts as they appeared then and not merely in
the light of the event." Moyer v. Peabody,
212 U.S. 78, 85 (1909). (Citations omitted.)
Under the criteria developed by precedents of this
Court, 1983 would be drained of meaning were we to hold
that the acts of a governor or other high executive
officer have "the quality of a supreme and unchangeable
edict, overriding all conflicting rights of property and
unreviewable through the judicial power of the Federal
Government." Sterling v. Constantin,
287 U.S., at 397 . In Sterling, Mr. Chief Justice
Hughes put it in these terms:
"If this extreme position could be deemed to be well
taken, it is manifest that the fiat of a state
Governor, and not the Constitution of the United
States, would be the supreme law of the land; that
the restrictions of the Federal Constitution upon
the exercise of state power would be but impotent
phrases, the futility of which the State may at any
time disclose by the simple process of transferring
powers of legislation to the Governor to be
exercised by him, beyond control, upon his assertion
of necessity. Under our system of government, such a
conclusion
[416 U.S. 232, 249] is
obviously untenable. There is no such avenue of
escape from the paramount authority of the Federal
Constitution. When there is a substantial showing
that the exertion of state power has overridden
private rights secured by that Constitution, the
subject is necessarily one for judicial inquiry in
an appropriate proceeding directed against the
individuals charged with the transgression." Id., at
397-398.
Gilligan v. Morgan, by no means indicates a contrary
result. Indeed, there we specifically noted that we
neither held nor implied "that the conduct of the
National Guard is always beyond judicial review or that
there may not be accountability in a judicial forum for
violations of law or for specific unlawful conduct by
military personnel, whether by way of damages or
injunctive relief."
413 U.S., at 11 -12. (Footnote omitted.) See
generally Laird v. Tatum,
408 U.S. 1, 15 -16 (1972); Duncan v. Kahanamoku,
327 U.S. 304 (1946).
IV
These cases, in their present posture, present no
occasion for a definitive exploration of the scope of
immunity available to state executive officials nor,
because of the absence of a factual record, do they
permit a determination as to the applicability of the
foregoing principles to the respondents here. The
District Court acted before answers were filed and
without any evidence other than the copies of the
proclamations issued by respondent Rhodes and brief
affidavits of the Adjutant General and his assistant. In
dismissing the complaints, the District Court and the
Court of Appeals erroneously accepted as a fact the good
faith of the Governor, and took judicial notice that
"mob rule existed at Kent State University." There was
no opportunity afforded petitioners to contest
[416 U.S.
232, 250] the facts assumed in that
conclusion. There was no evidence before the courts from
which such a finding of good faith could be properly
made and, in the circumstances of these cases, such a
dispositive conclusion could not be judicially noticed.
We can readily grant that a declaration of emergency by
the chief executive of a State is entitled to great
weight but it is not conclusive. Sterling v. Constantin,
supra.
The documents properly before the District Court at
this early pleading stage specifically placed in issue
whether the Governor and his subordinate officers were
acting within the scope of their duties under the
Constitution and laws of Ohio; whether they acted within
the range of discretion permitted the holders of such
office under Ohio law and whether they acted in good
faith both in proclaiming an emergency and as to the
actions taken to cope with the emergency so declared.
Similarly, the complaints place directly in issue
whether the lesser officers and enlisted personnel of
the Guard acted in good-faith obedience to the orders of
their superiors. Further proceedings, either by way of
summary judgment or by trial on the merits, are
required. The complaining parties are entitled to be
heard more fully than is possible on a motion to dismiss
a complaint.
We intimate no evaluation whatever as to the merits
of the petitioners' claims or as to whether it will be
possible to support them by proof. We hold only that, on
the allegations of their respective complaints, they
were entitled to have them judicially resolved.
The judgments of the Court of Appeals are reversed
and the cases are remanded for further proceedings
consistent with this opinion.
MR. JUSTICE DOUGLAS took no part in the decision
of these cases.
Footnotes
[ Footnote 1 ]
413 U.S. 919 (1973).
[ Footnote 2 ] The Krause
complaint states that the plaintiff is a citizen of
Pennsylvania and expressly invokes federal diversity
jurisdiction under 28 U.S.C. 1332. The Miller complaint
states that the plaintiff is a citizen of New York.
While the complaint does not specifically refer to
jurisdiction under 28 U.S.C. 1332, it alleges facts
which clearly support diversity jurisdiction. App. in
No. 72-1318, p. 85. See Fed. Rule Civ. Proc. 8 (a) (1).
[ Footnote 3 ] In the
Krause case, the Adjutant General and his assistant also
filed brief affidavits. These seem basically directed to
the motion for a change of venue and, in any event, make
no substantial contribution to the jurisdictional or
immunity questions.
[ Footnote 4 ] In England
legislative immunity was secured after a long struggle,
by the Bill of Rights of 1689: "That the Freedom of
Speech, and Debates or Proceedings in Parliament, ought
not to be impeached or questioned in any Court or Place
out of Parliament," 1 W. & M., Sess. 2, c. 2. See
Stockdale v. Hansard, 9 Ad. & E. 1, 113-114, 112 Eng.
Rep. 1112, 1155-1156 (Q. B. 1839). The English
experience, of course, guided the drafters of our
"Speech or Debate" Clause. See Tenney v. Brandhove,
341 U.S. 367, 372 -375 (1951); United States v.
Johnson,
383 U.S. 169, 177 -178, 181 (1966); United States v.
Brewster,
408 U.S. 501 (1972). In regard to judicial immunity,
Holdsworth notes: "In the case of courts of record . . .
it was held, certainly as early as Edward III's reign,
that a litigant could not go behind the record, in order
to make a judge civilly or criminally liable for an
abuse of his jurisdiction." 6 W. Holdsworth. A History
of English Law 235 (1927). The modern concept owes much
to the elaboration and restatement of Coke and other
judges of the sixteenth and early seventeenth centuries.
Id., at 234 et seq. See Floyd v. Barker, 12 Co. Rep. 23,
77 Eng. Rep. 1305 (K. B. 1607). The immunity of the
Crown has traditionally been of a more limited nature.
Officers of the Crown were at first insulated from
responsibility since the King could claim the act as his
own. This absolute insulation was gradually eroded.
Statute of Westminster I, 3 Edw. 1, c. 24 (1275)
(repealed);
[416 U.S. 232, 240] Statute
of Westminster II, 13 Edw. 1, c. 13 (1285) (repealed).
The development of liability, especially during the
times of the Tudors and Stuarts, was slow; see, e. g.,
Public Officers Protection Act, 7 Jac. 1, c. 5 (1609)
(repealed). With the accession of William and Mary, the
liability of officers saw what Jaffe has termed "a most
remarkable and significant extension" in Ashby v. White,
1 Bro. P. C. 62, 1 Eng. Rep. 417 (H. L. 1704), reversing
6 Mod. 45, 87 Eng. Rep. 808 (Q. B. 1703). Jaffe, Suits
Against Governments and Officers: Sovereign Immunity, 77
Harv. L. Rev. 1, 14 (1963); A. Dicey, The Law of the
Constitution 193-194 (10th ed. 1959) (footnotes
omitted). See generally Barr v. Matteo,
360 U.S. 564 (1959). Good-faith performance of a
discretionary duty has remained, it seems, a defense.
See Jaffe, Suits Against Governments and Officers:
Damage Actions, 77 Harv. L. Rev. 209, 216 (1963). See
also Spalding v. Vilas,
161 U.S. 483, 493 et seq. (1896).
[ Footnote 5 ] Jaffe,
Suits Against Governments and Officers: Damage Actions,
77 Harv. L. Rev., at 223.
[ Footnote 6 ] Mr.
Justice Frankfurter noted in Tenney v. Brandhove,
341 U.S., at 373 : "The provision in the United
States Constitution was a reflection of political
principles already firmly established in the States.
Three State Constitutions adopted before the Federal
Constitution specifically protected the privilege." See
Coffin v. Coffin, 4 Mass. 1, 27 (1808). See also
Kilbourn v. Thompson,
103 U.S. 168, 202 (1881).
[ Footnote 7 ] For
example, in Floyd v. Barker, supra, Coke emphasized that
judges "are only to make an account to God and the King"
since a contrary rule "would tend to the scandal and
subversion of all justice. And those who are the most
sincere, would not be free from continual calumniations
. . . ." 12 Co. Rep., at 25, 77 Eng. Rep., at 1307. See
also Yaselli v. Goff, 12 F.2d 396, 399 (CA2 1926), aff'd
per curiam,
275 U.S. 503 (1927). In Spalding v. Vilas,
161 U.S., at 498 , the Court noted: "In exercising
the functions of his office, the head of an Executive
Department, keeping within the limits of his authority,
should not be under an apprehension that the motives
that control his official conduct may, at any time,
become the subject of inquiry in a civil suit for
damages. It would seriously cripple the proper and
effective administration of public affairs as entrusted
to the executive branch of the government, if he were
subjected to any such restraint."
[ Footnote 8 ] In
Spalding v. Vilas,
161 U.S., at 498 , the Court, after discussing the
early principles of judicial immunity in the country,
cf. Randall v. Brigham, 7 Wall. 523, 535 (1869), Bradley
v. Fisher, 13 Wall. 335 (1872), and Yates v. Lansing, 5
Johns. 282 (N. Y. 1810), noted the similarity in the
controlling policy considerations in the case of
high-echelon executive officers and judges: "We are of
opinion that the same general considerations of public
policy and convenience which demand for judges of courts
of superior jurisdiction immunity from civil suits for
damages arising from acts done by them in the course of
the performance of their judicial functions, apply to a
large extent to official communications made by heads of
Executive Departments when engaged in the discharge of
duties imposed upon them by law. The interests of the
people require that due protection be accorded to them
in respect of their official acts."
[416 U.S.
232, 251] |