City of Kenosha, Wisconsin v. Bruno 8212 658

Citation93 S.Ct. 2222,412 U.S. 507,37 L.Ed.2d 109
Decision Date11 June 1973
Docket NumberNo. 72,72
PartiesCITY OF KENOSHA, WISCONSIN et al., Appellants, v. Peter G. BRUNO et al. —658
CourtUnited States Supreme Court

Appellees, who apparently because of alleged nude dancing at their retail liquor establishments were denied renewal of their one-year liquor licenses, brought suit under 42 U.S.C. § 1983 for declaratory and injunctive relief against the cities of Racine and Kenosha. Appellees claimed deprivation of procedural due process arising from the cities' failure to hold full-blown adversary hearings before refusing to issue license renewals, and the unconstitutionality of the local licensing scheme. The Wisconsin Attorney General intervened as a party defendant in the proceedings. The cases were submitted on cross-motions for summary judgment and stipulations of fact. A three-judge District Court held that in light of the 'equitable nature' of the actions it had jurisdiction under 28 U.S.C. § 1343(3) and the court declared the statutory scheme unconstitutional and enjoined its enforcement. Held:

1. A city is not a 'person' under 42 U.S.C. § 1983 where equitable relief is sought, any more than it is where damages are sought, Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 484, 5 L.Ed.2d 492, and the District Court, therefore, erred in concluding that it had jurisdiction over the complaints under 28 U.S.C. § 1343(3) since only the two municipalities were named as defendants. Pp. 511—513.

2. The District Court on remand should consider the jurisdictional questions presented by the State Attorney General's intervention and the availability of 28 U.S.C. § 1331 jurisdiction, as well as the decisions in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548, and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570, which are germane to the due process issue, and the supervening decision in California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342, dealing with broad state authority over liquor distribution. Pp. 513—515.

346 F.Supp. 43, vacated and remanded. AT

LeRoy L. Dalton, Madison, Wis., for appellants.

James A. Walrath, Milwaukee, Wis., for appellees Sleepy's Inc. and others.

Mr. Justice REHNQUIST delivered the opinion of the Court.

Appellees, owners of retail liquor establishments, were holders of tavern liquor licenses1 issued under Wisconsin law by appellants, the cities of Racine and Kenosha. Acting pursuant to Wis.Stat.Ann. §§ 176.05(1), (8) (1957 and Supp.1973), the cities denied appellees' applications for renewal of their one-year licenses after holding public 'legislative' hearings. Alleging, inter alia, deprivations of their Fourteenth Amendment procedural due process rights in such denials and, by amended complaints, the unconstitutionality of § 176.05(1), (8), appellees brought these federal civil rights actions for declaratory and injunctive relief naming in each case only the appropriate municipality as a defendant. The District Court entered temporary restraining orders commanding the immediate issuance of licenses and convened a three-judge district court pursuant to 28 U.S.C. § 2281 to rule on the constitutionality of the statutory licensing procedure. Thereafter, the Attorney General of Wisconsin was allowed to intervene as a party defendant on his own motion. On cross-motions for summary judgment, the District Court declared the statute unconstitutional and enjoined its enforcement. This direct appeal followed.

Under the Wisconsin local licensing scheme, the governing bodies of municipalities are authorized to grant liquor licenses 'to such persons entitled to a license under this chapter as they deem proper to keep places within their respective towns, villages, or cities for the sale of intoxicating liquors. . . .' Wis.Stat.Ann. § 176.05(1) (1957).2 The statutory scheme has been interpreted by the Wisconsin Supreme Court to require a 'legislative type of hearing wherein one is given notice of the hearing and a fair opportunity to state his position on the issue,' in situations where municipalities have denied an application for renewal of a license. State ex rel. Ruffalo v. Common Council of City of Kenosha, 38 Wis.2d 518, 524, 157 N.W.2d 568, 571 (1968). Such applications may not be rejected 'without a statement on the clerk's minutes as to the reasons for such rejection,' Wis.Stat.Ann. § 176.05(8) (Supp.1973),3 and the state courts have certiorari jurisdiction to review whether such refusals by the councils are arbitrary, capricious, or discriminatory. Ruffalo v. Common Council, supra.

In the case of the Racine denials,4 it was stipulated that the question of the appellees' applications for licenses was referred to the License and Welfare Committee of the Common Council and that at public hearings conducted by that Committee, appellees were present and heard oral objections to the renewal of the licenses for their taverns.5 After holding a public hearing, the Common Council followed the Committee's recommendation and voted to deny the applications, apparently because of the adverse effects on the community of nude dancing in the bars.

It was also stipulated that at all meetings, all persons including appellees were given an opportunity to speak, but no speaker was sworn. None of the testimony was recorded and no verbatim transcript was made. Appellees were not advised that they could cross-examine any of the speakers, and they did not request such an opportunity. And there was no advance written specification of the charges against any of the bars.

Relying on two Seventh Circuit decisions,6 the three-judge court (as had the single judge) held that 'in light of the equitable nature of this action' it had jurisdiction pursuant to 28 U.S.C. § 1343(3).7 Concluding that Racine's interest in being able to deny the renewal of liquor licenses with no other safeguard than a legislative hearing is 'minimal,' the court balanced that interest against that of appellees, assertedly their occupations and their investments, and determined that the Due Process Clause of the Fourteenth Amendment requires municipalities to grant an 'adversary-type hearing in which the applicant is given timely notice of the reasons urged for denial (of renewal of his license) and an opportunity to present, confront, and cross-examine witnesses under oath with a verbatim transcript.' 346 F.Supp. 43, 51.


Neither party to the appeal has questioned the jurisdiction of the District Court, but 'it is the duty of this court to see to it that the jurisdiction of the (district court), which is defined and limited by statute, is not exceeded.' Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 43, 53 L.Ed. 126 (1908). Appellees alleged that they brought their action under 42 U.S.C. § 1983,8 and that the District Court therefore had jurisdiction under 28 U.S.C. § 1343. The District Court agreed. The only defendants named in the complaints, however, were the municipalities of Kenosha and Racine. In considering the reach of § 1983 in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), this Court examined the legislative history surrounding its enactment and said:

'The response of the Congress to the proposal to make municipalities liable for certain actions being brought within federal purview by the Act of April 20, 1871, was so antagonistic that we cannot believe that the word 'person' was used in this particular Act to include them.' Id., at 191, 81 S.Ct., at 486.

The District Court relied on Schnell v. City of Chicago, 407 F.2d 1084 (CA7 1969), and Adams v. City of Park Ridge, 293 F.2d 585 (CA7 1961), in holding that Monroe was limited to actions for damages and that cities were proper defendants under § 1983 where equitable relief was sought. Adams, supra,9 in turn, relied on this Court's per curiam opinion in Holmes v. City of Atlanta, 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 776 (1955). But in none of the three opinions in Holmes was the issue of whether or not a municipality is a 'person' within the meaning of § 1983 discussed. The authority of that case as support for the proposition that a city is a 'person' under § 1983 where equitable relief is sought, but is not a 'person' under the same section where damages are prayed for, is at least seriously weakened by the following observation in Monroe, supra, 365 U.S., at 191, 81 S.Ct., at 486 n. 50:

'In a few cases in which equitable relief has been sought, a municipality has been named, along with city officials, as defendant where violations of 42 U.S.C. § 1983 were alleged. See, e.g., Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324; Holmes v. City of Atlanta, 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 776. The question dealt with in our opinion was not raised in those cases, either by the parties or by the Court. Since we hold that a municipal corporation is not a 'person' within the meaning of § 1983, no inference to the contrary can any longer be drawn from those cases.'

We find nothing in the legislative history discussed in Monroe, or in the language actually used by Congress, to suggest that the generic word 'person' in § 1983 was intended to have a bifurcated application to municipal corporations depending on the nature of the relief sought against them. Since, as the Court held in Monroe, 'Congress did not undertake to bring municipal corporations within the ambit of' § 1983, id., at 187, 81 S.Ct., at 484, they are outside of its ambit for purposes of equitable relief as well as for damages. The District Court was therefore wrong in concluding that it had jurisdiction of appellees' complaints under § 1343.

As previously noted, after the complaints had been filed and issue joined the Attorney General of Wisconsin was allowed to intervene as a party defendant in the actions. The District Court, having concluded that it had jurisdiction to entertain the original complaints under § 1343,...

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