[ 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
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] |