American Civil Liberties Union of Mississippi, Inc. v. Finch, 79-2175

• Citation: 638 F.2d 1336
• Decision Date: 13 March 1981
• Docket Number: No. 79-2175,79-2175
• Parties: AMERICAN CIVIL LIBERTIES UNION OF MISSISSIPPI, INC., et al., Plaintiffs- Appellants, v. Cliff FINCH, Governor of the State of Mississippi et al., Defendants-Appellees. . Unit A
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1336

638 F.2d 1336

AMERICAN CIVIL LIBERTIES UNION OF MISSISSIPPI, INC., et al., Plaintiffs- Appellants, v. Cliff FINCH, Governor of the State of Mississippi et al.,

Defendants-Appellees.

No. 79-2175.

United States Court of Appeals, Fifth Circuit.

Unit A

March 13, 1981.

Christopher R. Kelley, Robert Rubin, Jackson, Miss., Jack D. Novik, New York City, for plaintiffs-appellants.

A. F. Summer, Atty. Gen. of Miss., J. Stephen Wright, Sp. Asst. Atty. Gen., Peter M. Stockett, Jr., Asst. Atty. Gen., Darold L. Rutland, Jackson, Miss., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Mississippi.

Before WISDOM, AINSWORTH and GEE, Circuit Judges.

WISDOM, Circuit Judge:

The plaintiffs/appellants brought this § 1983 action based on alleged violations of their first amendment and other constitutional rights. They sued the defendant state officials in their official capacities for declaratory and injunctive relief and in their individual capacities for damages. The district judge, relying on the doctrine of sovereign immunity, dismissed this case entirely on his own motion, without the benefit of briefs or argument. He made three rulings. We reverse all three and hold that this case was erroneously dismissed.

I.

In February 1977 the American Civil Liberties Union of Mississippi, two individual Mississippi residents, and the Delta Ministry, a Mississippi-based organization, brought this unusual civil rights action. Its gravamen is that various Mississippi officials violated, and continue to violate, the plaintiffs' first amendment and other constitutional rights by harassment and by surveillance of their lawful activities. The complaint details by way of example three specific instances of allegedly unlawful intrusion. ¹ The plaintiffs contend that these incidents were not isolated events, but were part of a continuing pattern of conduct stretching back as far as 1964 and continuing to the date of the complaint.

The complaint asserts four causes of action, two for injunctive and declaratory relief, and two for compensatory and punitive damages. The claims for injunctive and declaratory relief are asserted on behalf of a class of all who "have been and are subjected to the defendants' unlawful governmental intrusions". The damage claims are asserted on behalf of the named plaintiffs alone. Originally named as defendants were Cliff Finch, Governor of Mississippi at the time the complaint was filed; A. F. Summer, then attorney general; Heber Ladner, then secretary of state; James Finch, then commissioner of public safety; and W. Webb Burke, who was from 1968 to 1974 the director of the now-defunct Mississippi Sovereignty Commission. Although the complaint does not explicitly so state, it is plain from the form of relief sought that all five defendants were sued in their individual capacities with respect to the damage claims and that the first four defendants, alone, were sued in their official capacities with respect to the claims for injunctive and declaratory relief. Neither the state nor any state agency was named as a defendant to any claim.

The plaintiffs contend that some but not all of the defendants' political surveillance and harassment took place under the aegis of the Sovereignty Commission. ² Shortly after this suit was filed, the Mississippi legislature passed a law formally abolishing the Commission, which had been unfunded and moribund since 1974. The statute also sealed the Commission's files and records until the year 2027. Miss. Code Ann. §§ 39-5-61 to -65 (Supp.1977). ³ The statute did not, however, explicitly create an evidentiary privilege. According to the plaintiffs, the files and records of the Sovereignty Commission constitute primary evidence in this case. They therefore subpoenaed the files from their custodian, the state Director of Archives and History. ⁴ Relying on Miss. Code Ann. §§ 39-5-61 to -65, the Director declined to comply with the subpoena. In a brief order dated July 6, 1978, however, the district court granted the plaintiffs' motion to compel production of the documents, subject to the Director's right to assert other privileges for particular documents. Although the order did not explicitly refer to Miss. Code Ann. §§ 39-5-61 to -65, that statute was the sole justification advanced for noncompliance. In effect, the court held that the statute did not create any evidentiary privilege to which a federal court trying these federal claims was bound to yield.

Despite that order, the Director delayed production of the Sovereignty Commission's files and records. The plaintiffs again moved to compel their production. When the government moved for in camera inspection of certain documents assertedly privileged, the magistrate in charge of discovery ordered the defendant to prepare "an analysis cataloging the specific claim or claims (of privilege) as to each document". The plaintiffs objected to the "analysis" eventually submitted on the ground that it was insufficiently detailed to permit them to challenge effectively the claims of privileges. ⁵ The magistrate ruled against the plaintiffs, but stayed in camera inspection pending review of his ruling by the district court. Both the plaintiffs' application for review of that ruling and the defendants' response were limited to whether (1) the submission was sufficiently detailed, (2) the defendants had properly asserted such privileges, and (3) such privileges properly applied.

The district judge never reached those issues. Instead, acting sua sponte, he reversed his order of June 6, 1978 granting the plaintiffs access to the Sovereignty Commission files and held that Miss. Code Ann. §§ 39-5-61 to -65 absolutely precluded discovery of the files. Second, drastically the district judge dismissed all of the plaintiffs' claims as barred by the eleventh amendment a contention which had not been raised by any party at any point during the two-year course of the litigation. Overlooking the fact that the claims for damages ran against the defendants in their individual capacities, rather than against the state fisc, the court held that the damage claims were "in essence, ... for the recovery of money from the state" and therefore were barred. Without explanation, the district judge dismissed the plaintiffs' claims for injunctive and declaratory relief as well. Third, the court denied class certification, even though the plaintiffs had never moved for certification and an order staying certification proceedings pending further discovery was then in effect. As we understand the district judge's reasoning on this point, it appears that he thought that since the injunction and declaratory judgment claims were barred by the eleventh amendment, class certification should be denied as "unnecessary".

The plaintiffs filed their notice of appeal on May 1, 1979. In November 1979, the voters of Mississippi elected a new governor, attorney general, and secretary of state. After the new administration took office in January 1980, Governor William Winter appointed a new commissioner of public safety as well. By operation of Federal Rule of Appellate Procedure 43(c)(I) and Federal Rule of Civil Procedure 25(d)(I), these members of the new administration were automatically substituted as parties to this action to the extent that this suit was against the members of the outgoing administration in their "official capacities". Since the damage claims run against the individual members of the outgoing administration, they are still defendants as to those claims. Since the injunctive and declaratory relief requested by the defendants must run against the individuals currently in office, the members of the new administration are now the defendants as to those claims.

II.

As the defendants' counsel conceded in the oral argument on appeal, the district court's dismissal of this action on the basis of the eleventh amendment was erroneous. That amendment only forbids suits against "one of the United States". A state official who acts in violation of the Constitution is "stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct" that is, a lawsuit against him personally. Ex parte Young, 1908, 209 U.S. 123, 160, 28 S.Ct. 441, 454, 52 L.Ed. 714. Although the principle that an official who acts unlawfully may not claim the immunity of his sovereign if sued in his own name is today generally associated with Ex parte Young, its roots stretch deep into English common law, and it was applied specifically to avoid the bar of the eleventh amendment as early as Osborn v. Bank of the United States, 1824, 22 U.S. (9 Wheat) 738, 6 L.Ed. 204. ⁶ The theory underlying this principle that in substance such a suit is not one against the state is plainly fictitious. It is, nevertheless, a fiction " 'indispensable to the establishment of constitutional government and the rule of law' ". Louisiana State Board of Education v. Baker, 5 Cir. 1964, 339 F.2d 911, 914, quoting C. Wright, Federal Courts § 48, at 161 (1964). Like all valid legal fictions, it is an assumption made with a full realization of the impossibility of the thing assumed; a conceptual construct that has justified its existence by its success. ⁷ Outside the specific context which inspired the adoption of the eleventh amendment an action "in essence one for the recovery of money from the state", Ford Motor Co. v. Department of Treasury, 1945, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 courts will pierce the fiction and apply the bar of the eleventh amendment to a suit nominally against individual state officers only in certain rare situations that are the legacy of quirks of legal evolution. ⁸

The district court dismissed the damage claims on the strength of Edelman v. Jordan, 1974, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662. That was error. Edelman applied the principle laid...