Dodson v. Polk County

• Decision Date: 26 August 1980
• Docket Number: No. 79-1996,79-1996
• Citation: 628 F.2d 1104
• Parties: Russell Richard DODSON, Appellant, v. POLK COUNTY; Polk County Board of Supervisors; Polk County Offender Advocate; and Martha Shepard, Individually and through her official capacity as an Agent or Assistant for Polk County, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1104

628 F.2d 1104

Russell Richard DODSON, Appellant, v. POLK COUNTY; Polk County Board of Supervisors; Polk County Offender Advocate; and Martha Shepard Individually and through her official capacity as an Agent or Assistant for Polk County, Appellees.

No. 79-1996.

United States Court of Appeals Eighth Circuit.

Submitted June 9, 1980.

Decided Aug. 26, 1980.

John D. Hudson, Des Moines, Iowa, for appellant.

Thomas M. Werner, argued, John H. King, Asst. Polk County Attys., Des Moines, Iowa, on brief, for appellees.

Before HEANEY and ARNOLD, Circuit Judges, and OVERTON, ^* District Judge.

ARNOLD, Circuit Judge.

This appeal presents two related questions concerning the liability under 42 U.S.C. § 1983 of a county-employed public defender: First, whether a public defender, in representing an indigent defendant, acts under color of state law; and second, whether the defender enjoys immunity, either qualified or absolute, for conduct during that representation. The complaint alleged that Martha Shepard, an attorney in the Polk County, Iowa, Offender Advocate's office, failed to represent appellant adequately in his appeal of a robbery conviction to the Supreme Court of Iowa. Finding no state action, the United States District Court for the Southern District of Iowa dismissed the complaint as frivolous. We hold that a county-employed public defender does act under color of state law in representing indigent defendants and enjoys a qualified immunity from liability.

I.

We take the allegations of the complaint as true on this appeal. It alleged that Dodson had been convicted of robbery in an Iowa state court, and that Ms. Shepard was appointed to represent him on appeal. Subsequently, she moved for permission to withdraw as counsel and to have the appeal dismissed as frivolous. Iowa R.App.P. 104 provides for dismissal of appeals found by the Supreme Court of Iowa to be "wholly frivolous." The motion was ultimately granted, and the appeal was dismissed. Dodson alleged in this case that Ms. Shepard's actions deprived him of his right to counsel, inflicted on him cruel and unusual punishment, and arbitrarily denied him his state-created right to appeal in violation of the Due Process Clause of the Fourteenth Amendment. The complaint set out pendent claims for malpractice and breach of an oral contract to prosecute the appeal.

The Polk County Offender Advocate and the Polk County Board of Supervisors, also named as defendants, were alleged to be responsible for Ms. Shepard's actions because they established rules and procedures for her to follow in handling criminal appeals. The District Court dismissed the claims against Ms. Shepard and the Offender Advocate, a county public official who supervises public defenders, for lack of state action. The claims against Polk County and its Board of Supervisors were dismissed because, in the opinion of the District Court, the complaint failed to allege the requisite personal involvement with unconstitutional conduct. Having disposed of all the constitutional claims, the District Court dismissed the pendent state claims as well.

The District Court, in a thoughtful opinion canvassing the existing authorities on the point, relied principally on the fact that a public defender, like private counsel, owes a duty of undivided loyalty to her client, and makes, or should make, decisions solely in the interest of the client. It may be true, and we assume for present purposes, that Polk County has no authority to direct or influence particular decisions that its public defenders make in the course of their representation of indigent defendants. It is also true, we assume, that the responsibility of a public defender, in terms of rules of ethics and standards of professional conduct, is the same in all respects as that of any other Iowa attorney, whether privately employed or court-appointed. In our view, however, the dispositive point is that the Offender Advocate and all his subordinates are employees of the County, which in turn, of course, is merely a creature of the State of Iowa. All these lawyers are selected, paid, hired, and fired by the County. Whether individual decisions made by attorneys in the office of the Offender Advocate are governed or influenced by the County or its officials is therefore beside the point. Public defenders receive their power not because they are selected by their clients, but because they are employed by the County to represent a certain class of clients, who likely have little or no choice in selecting the lawyer who will defend them. In short, we are persuaded by the analysis, on this point, of Robinson v. Bergstrom, 579 F.2d 401, 404-08 (7th Cir. 1978) (per curiam). See also the useful discussion in Note, Liability of Public Defenders Under Section 1983, 92 Harv.L.Rev. 943 (1979). We hold that an attorney in a county or state funded public defender's office acts under color of state law in representing indigent defendants. We are mindful that other courts have reached the opposite conclusion, ¹ but for the reasons we have stated we simply disagree. ²

II.

We next consider whether a public defender enjoys a degree of immunity from § 1983 liability for actions taken while representing clients. ³ At the outset, we note that § 1983 itself specifies no immunities; it imposes liability by its terms upon "every person," and reflects a determination by Congress that a "damages remedy against the offending party is a vital component of any scheme for vindicating cherished constitutional guarantees." Owen v. City of Independence, 445 U.S. 622, 651, 100 S.Ct. 1398, 1415, 63 L.Ed.2d 673 (1980). It should be "construed generously to further its primary purpose." Gomez v. Toledo, --- U.S. ----, ----, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572 (1980).

On the other hand, the Supreme Court has on occasion found that immunity was so deeply rooted in both the common law and public policy that it was not abrogated by § 1983's silence on the question. Thus, Pierson v. Ray, 386 U.S. 547, 553-54, 87 S.Ct. 1213, 1217, 18 L.Ed.2d 288 (1967), held that the absolute immunity afforded judges at common law was preserved under § 1983, and absolute immunity was extended to prosecutors for the same reasons in Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). Relying upon cases such as Miller v. Barilla, 549 F.2d 648 (9th Cir. 1977), and Robinson v. Bergstrom, 579 F.2d 401, 408-11 (7th Cir. 1978) (per curiam), appellees argue that we should extend absolute immunity to public defenders.

To do so, however, we would have to ignore Ferri v. Ackerman, 444 U.S. 193, 100 S.Ct. 402, 62 L.Ed.2d 355 (1979), which held in the context of a malpractice action arising under state law, that an attorney appointed by a federal court to represent an indigent defendant is not entitled to absolute immunity as a matter of federal law. In the course of its unanimous opinion, the Court distinguished the function of a prosecutor or judge from that of appointed counsel. A judge or prosecutor, the Court noted, represents the interest of society as a whole, and absolute immunity gives them "the maximum ability to deal fearlessly and impartially with the public at large." Id. at 203, 100 S.Ct. at 408. On the other hand, the duty of appointed counsel is not to the public at large except in a very general way, but is to serve the undivided interest of his client, just as privately retained counsel do. Thus, the Court concluded "that the essential office of appointed defense counsel is akin to that of private counsel and unlike that of a prosecutor . . . or judge . . . ," ibid., and this was the Court's primary rationale.

Although Ferri was not a civil rights action, its rationale is controlling here by analogy. ⁴ We perceive no distinction of substance, for immunity purposes, between appointed counsel and a public defender. Both owe primary allegiance to the client and represent the public interest only in a general way. If federal law does not immunize counsel appointed by a federal court from a state-law tort action, neither does it immunize a public defender from liability under 42 U.S.C. § 1983 for a constitutional tort. The fear that a disgruntled client will file suit under 42 U.S.C. § 1983 does not conflict with the performance of a lawyer's duty, and may in fact provide incentive to perform competently. Counsel is presumably subject to a malpractice action under state law, anyway. For these reasons, we are compelled to deny the invitation to extend absolute immunity to public defenders.

On the other hand, we do not read Ferri to prohibit the implication of some degree of immunity in § 1983 cases. In limited instances, the Supreme Court has held that public officials are entitled to a qualified immunity from damages under § 1983. E. g., Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978) (prison officials); O'Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975) (state hospital superintendent); Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975) (school board member). A finding of qualified immunity is usually preceded by an inquiry into whether the public official in question enjoyed immunity at common law. There is, of course, no pre-s 1983 common law with regard to the liability of public defenders. The dispositive question, then, is whether some degree of immunity is justified as a matter of public policy.

We believe that it is. Public defenders need the assurance that "action taken in the good-faith fulfillment of their responsibilities and within the bounds of reason under all the circumstances will not be punished and that they need not exercise their discretion with undue timidity." Wood v. Strickland, 420 U.S. 308, 321, 95 S.Ct. 992, 1000, 43 L.Ed.2d 214 (1975). The defender oversteps the immunity boundary, however, if he acts in a manner which he knows or reasonably should know will violate the...