Tower v. Glover, No. 82-1988

• Court: United States Supreme Court
• Writing for the Court: O'CONNOR
• Citation: 81 L.Ed.2d 758,104 S.Ct. 2820,467 U.S. 914
• Parties: Bruce TOWER, etc., et al., Petitioners, v. Billy Irl GLOVER
• Docket Number: No. 82-1988
• Decision Date: 25 June 1984

467 U.S. 914 104 S.Ct. 2820 81 L.Ed.2d 758 Bruce TOWER, etc., et al., Petitioners,

v.

Billy Irl GLOVER.

No. 82-1988.

Supreme Court of the United State

Argued Feb. 22, 1984. Decided June 25, 1984. Syllabus

Petitioner Tower, the Douglas County, Ore., Public Defender, represented respondent at a state robbery trial that resulted in respondent's conviction, and petitioner Babcock, the Oregon State Public Defender, represented respondent in his unsuccessful appeal from this and at least one other conviction. Subsequently, respondent filed in state court a petition for post-conviction relief, seeking to have his conviction set aside on the ground that petitioners had conspired with various state officials, including the trial and appellate court judges and the former Attorney General, to secure respondent's conviction. On the following day, respondent filed the instant action against petitioners in Federal District Court under 42 U.S.C. § 1983, seeking only to recover punitive damages on the basis of factual allegations that were identical to those made in the state-court petition. The District Court granted petitioners' motion to dismiss the § 1983 action, holding that public defenders are absolutely immune from § 1983 liability, but the Court of Appeals reversed and remanded the case for trial. Prior to the Court of Appeals' decision, the state-court proceedings came to trial and resulted in a finding that there had been no conspiracy to convict respondent.

Held:

1. Respondent's complaint adequately alleges conduct "under color of" state law for purposes of § 1983, in view of the conspiracy allegations. Although appointed counsel in a state criminal prosecution does not act "under color of" state law in the normal course of conducting the defense, Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509, an otherwise private person acts "under color of" state law when engaged in a conspiracy with state officials to deprive another of federal rights, Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185. Pp. 919-920.

2. State public defenders are not immune from liability under § 1983 for intentional misconduct by virtue of alleged conspirational action with state officials that deprives their clients of federal rights. For purposes of § 1983, immunities are predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it. No immunity for public defenders, as such, existed at common law in 1871, when § 1983's predecessor was enacted, because there was no such office in existence at that time. Although a

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public defender has a reasonably close "cousin" in the English barrister, and although barristers enjoyed in the 19th century and still enjoys a broad immunity from liability for negligent misconduct, nevertheless barristers have never enjoyed immunity from liability for intentional misconduct. In this country the public defender's only 19th-century counterpart was a privately retained lawyer, and such a lawyer would not have enjoyed immunity from tort liability for intentional misconduct such as that allegedly involved here. Nor is immunity warranted on the asserted ground that public defenders have responsibilities similar to those of a judge or prosecutor and should enjoy similar immunities in order, ultimately, not to impair the State's attempt to meet its constitutional obligation to furnish criminal defendants with effective counsel, and in order to prevent inundation of the federal courts with frivolous lawsuits. It is for Congress to determine whether § 1983 litigation has become too burdensome to state or federal institutions and, if so, what remedial action is appropriate. Pp. 920-923.

3. It is open to the District Court on remand to consider whether respondent is now collaterally estopped in this action by the state court's finding that the alleged conspiracy never occurred. Pp. 923-924.

700 F.2d 556 (CA9), affirmed and remanded.

David B. Frohnmayer, Atty.Gen., Salem, Or., for petitioners.

Craig K. Edwards, Portland, Or., for respondent.

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Justice O'CONNOR delivered the opinion of the Court.

Petitioners are two public defenders working in the State of Oregon. Petitioner Bruce Tower, the Douglas County Public Defender, represented respondent Billy Irl Glover at one of Glover's state trials on robbery charges, at which Glover was convicted. Petitioner Gary Babcock, the Oregon State Public Defender, represented Glover in Glover's unsuccessful state-court appeal from this and at least one other conviction.

In an action brought under 42 U.S.C. § 1983, Glover alleges that petitioners conspired with various state officials, including the trial and appellate court judges and the former Attorney General of Oregon, to secure Glover's conviction. Glover seeks neither reversal of his conviction nor compensatory damages, but asks instead for $5 million in punitive damages to be awarded against each petitioner. App. 5, 9. We conclude that public defenders are not immune from liability in actions brought by a criminal defendant against state public defenders who are alleged to have conspired with state officials to deprive the § 1983 plaintiff of federal constitutional rights.

I

Glover was arrested on February 1, 1976, in Del Norte County, Cal. Pet. for Cert. in Glover v. Dolan, O.T.1978, No. 78-5457, p. 3. The State of California extradited Glover to Benton County, Ore., on December 6, 1976.¹ Upon arriving in Oregon Glover immediately filed for habeas corpus relief in Federal District Court, seeking, apparently, a stay of

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his pending state-court trial. A hearing on this petition was held in January 1977, and immediate relief was denied.²

Before any final disposition of his federal habeas action, Glover was tried and convicted on different robbery charges in at least two Oregon state courts. One trial—the trial to which this § 1983 action is directly linked—was held in Douglas County Circuit Court, case No. 76-0386. Glover was represented by petitioner Tower, and was convicted. Petitioner Babcock represented Glover in the appeal from that conviction. The conviction was summarily affirmed by the Oregon Court of Appeals on January 18, 1978. Oregon v. Glover, 32 Or.App. 177, 573 P.2d 780. A second robbery trial—the trial in connection with which Glover had filed his federal habeas action—was held in the Benton County Circuit Court, case No. 31159. Pet. for Cert. in No. 78-5457, supra, at 6, 9. On April 6, 1977, Glover was convicted; five days later he was sentenced to 10 years in prison. This conviction was affirmed on April 17, 1978. Oregon v. Glover, 33 Or.App. 553, 577 P.2d 91. Petitioner Babcock represented Glover in this state-court appeal as well.

Meanwhile, on December 6, 1977, the Federal Magistrate to whom Glover's habeas petition had been referred recommended that it be dismissed. On March 6, 1978, the District Court dismissed the habeas petition on the ground that Glover had failed to exhaust state remedies. Glover v. Dolan, No. 77-276 (Dist.Ct.Ore.). Glover gave notice of appeal to the Court of Appeals for the Ninth Circuit, but the District Court refused to issue a certificate of probable cause. The Court of Appeals dismissed Glover's application for a certificate of probable cause on July 12, 1978, agreeing with the District Court that Glover had failed to exhaust state remedies. Glover v. Dolan, No. 78-8077 (CA9). In a petition for a writ of certiorari filed with this Court, Glover

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contended that the Ninth Circuit and the District Court had erred in requiring him to exhaust state-court remedies before bringing his federal habeas petition. This Court denied the petition for certiorari. 439 U.S. 1075, 99 S.Ct. 850, 59 L.Ed.2d 42 (1979).

While incarcerated in the Oregon State Penitentiary, Glover then initiated new lawsuits, again attacking his conviction simultaneously in both state and federal courts, and these suits, again, proceeded in parallel for almost three years. First, on December 11, 1980, Glover filed a petition for postconviction relief in the Circuit Court of the State of Oregon for Marion County, seeking to have his conviction set aside on the basis of the alleged conspiracy between his lawyers and various state officials. This state-court petition was later consolidated with a petition for postconviction relief filed in connection with Glover's Benton County conviction. On the following day, December 12, 1980, Glover filed this § 1983 action against petitioners in Federal District Court.³ His factual allegations were identical to those made in the state-court petition—indeed, Glover simply appended copies of papers filed in state court to his federal-court complaint.

On April 1, 1981, the Federal District Court granted petitioners' motion to dismiss Glover's § 1983 action, relying on a decision of the Court of Appeals for the Ninth Circuit that had held public defenders absolutely immune from § 1983 liability, Miller v. Barilla, 549 F.2d 648 (1977)....