U.S. Supreme Court Transcript for LA County v. Humphries

8/8/2019 U.S. Supreme Court Transcript for LA County v. Humphries

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Official - Subject to Final Review

IN THE SUPREME COURT OF THE UNITED STATES

- - - - - - - - - - - - - - - - - x

LOS ANGELES COUNTY, CALIFORNIA, :

Petitioner :

v. : No. 09-350

CRAIG ARTHUR HUMPHRIES, ET UX. :

- - - - - - - - - - - - - - - - - x

Washington, D.C.

Tuesday, October 5, 2010

The above-entitled matter came on for oral

argument before the Supreme Court of the United States

at 1:00 p.m.

APPEARANCES:

TIMOTHY T. COATES, ESQ., Los Angeles, California; on

behalf of Petitioner.

ANDREW J. PINCUS, ESQ., Washington, D.C.; on behalf

of Respondents.

1

Alderson Reporting Company


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C O N T E N T S

ORAL ARGUMENT OF PAGE

TIMOTHY T. COATES, ESQ.

On behalf of the Petitioner 3

ORAL ARGUMENT OF

ANDREW J. PINCUS, ESQ.

On behalf of the Respondents 20

REBUTTAL ARGUMENT OF

TIMOTHY T. COATES, ESQ.

On behalf of the Petitioner 47

2Alderson Reporting Company


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P R O C E E D I N G S

(1:00 p.m.)

CHIEF JUSTICE ROBERTS: We will hear

argument next in Case 09-350, Los Angeles

County v. Humphries.

Mr. Coates.

ORAL ARGUMENT OF TIMOTHY T. COATES

ON BEHALF OF THE PETITIONER

MR. COATES: Mr. Chief Justice, and may it

please the Court:

In Monell v. Department of Social Services,

this Court held there could be no liability against a

local public entity under section 1983 unless the

plaintiff proved causation, namely that the injury that

was inflicted was inflicted as a result of a custom,

policy, or practice of that local public entity.

The Ninth Circuit, however, in this case has

imposed ex post facto declaratory relief on the County

of Los Angeles as well as a substantial fee award, while

acknowledging that it has not, in fact, determined

whether the injury suffered by the plaintiffs and

subject to declaratory relief was the result of a

policy, custom, or practice fairly attributable to the

County of Los Angeles. It did so because the Ninth

Circuit has developed a digression from the Court's

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jurisprudence in Monell; namely, in the Ninth Circuit,

claims for prospective relief, both injunctive and

declaratory relief, are not subject to the Monell

requirements.

We submit that this is flatly inconsistent

with Monell and it erodes the important principles of

Federalism that are the motivating factors for the

Monell causation requirement.

JUSTICE SCALIA: What was the -- what was

the basis for that exception, that declaratory judgment

does not affect the fisc of the -

MR. COATES: Yes, essentially in the -

JUSTICE SCALIA: It does -- it does, though,

if you have attorneys' fees. What -- what was the total

attorneys' fee award in this case?

MR. COATES: As to the county, it's $58,000.

But the overall award is far above that, and that's just

for appellate attorneys' fees. We were not even talking

trial fees at this time.

JUSTICE SCALIA: What is far above? Like

what? I suspect -

MR. COATES: 600-and-some-odd thousand

dollars.

JUSTICE SCALIA: -- the case is mostly about

attorneys' fees.

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JUSTICE GINSBURG: But there was no

objection on the part of the State. The State was to

pay the lion's share of the fees, I think 90 percent,

right?

MR. COATES: Correct. The State has not

contested that.

JUSTICE GINSBURG: And the State is not

contesting it.

MR. COATES: The State has not contested

that, correct.

JUSTICE KENNEDY: Does the State make that

payment under an Ex Parte Young theory?

MR. COATES: Yes, yes. It's a suit against

the State under an Ex parte Young theory, since they

maintain the statute.

JUSTICE KENNEDY: If you sue the

municipality, if they deny a marriage license, do you

have to sue under 1983, or you can just sue alleging a

Federal cause of action under -- because of a denial of

a constitutional right?

MR. COATES: Well, it would have to be -

JUSTICE KENNEDY: It would be like a Bivens

action, I guess.

MR. COATES: It would have to be -- the

Court has recognized, against local municipalities,



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liability under section 1983.

JUSTICE KENNEDY: The only way to sue a

municipality for a constitutional violation is under

1983?

MR. COATES: In a direct civil cause of

action, I believe that is correct, Your Honor.

JUSTICE SCALIA: Well, you could get the

individual officer who is denying the marriage license

or whatever the offensive act is. You could sue that

person under 1983 and get -- and get injunctive relief,

I suppose.

MR. COATES: That is correct. You can also

sue the individual.

JUSTICE KENNEDY: But could you sue outside

of 1983?

MR. COATES: The individual, for a Federal

constitutional remedy?

JUSTICE KENNEDY: Just to get -- the

marriage license example -- just to get an order

demanding issuance of the license.

MR. COATES: No, I believe you would still

have to have an operative statute. To get it into

Federal court for declaratory relief requires some -

JUSTICE KENNEDY: And that has to be a

statute -- it has to be 1983?



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I


once brought to the attention of a policymaking official

that this is what was going on, then you have the

deliberate indifference by a policymaking official.

submit that under Monell, that might provide a basis

under the Court's case law.

JUSTICE SOTOMAYOR: All right. So what do

you do with ANCRA section 11178(a)(2), which tells you

that the municipality is responsible for the accuracy,

completeness, and retention of the reports sent to the

State?

It's not your policy to ignore your

obligation and not figure out what to do about the

retentions of improperly submitted names?

MR. COATES: Well, the difficulty in this

case is with respect to that there are no State

standards in terms of evaluating the accuracy or when

someone is removed, when someone wants to be removed

from the database. Even Ninth Circuit recognized that,

that it was going to impose on local public entities

through the back door, that there are no specific

criteria in the statute for removing someone from -

from the list.

And that would require the county to start

trying to create its own policy or own procedural

schemes.

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JUSTICE SOTOMAYOR: But that's what it is

charged with doing. It is charged with the

responsibility for the accuracy, completeness, and

retention of these reports.

So if you're charged with the accuracy,

completeness, and retention of the reports, why

shouldn't you be responsible for the failure to maintain

accurate reports?

MR. COATES: Because it's not so much that

they are inaccurate; it's the standards used to remove

someone from the list or not. Because we may have

information showing culpability, information showing not

culpability, but we don't have a standard to tell us

when to remove them from the database and when to leave

them in, because that's defined by the State.

More importantly, we don't have any

procedures on how to go about that, because the

statutory scheme doesn't have any for doing that.

JUSTICE ALITO: Well, the Respondents here

argue that, don't they? That you should have created a

procedure on your own, right?

MR. COATES: Correct.

JUSTICE ALITO: Now, if the -- presumably,

that could be brought to the -- that could be brought

before someone who is a county policymaker, couldn't it,

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defendant has a policy, custom, or practice.

MR. COATES: You can. If you have a

policymaker who understands the situation, makes a

deliberate decision, yes, I think can you come forward

with a Monell.

JUSTICE SOTOMAYOR: Well, that's your

adversary's argument, which is by this lawsuit, you have

been told that there's something wrong. It seems pretty

natural that a report would be kept on the registry.

That is then declared just plain wrong.

The court has said there is no foundation

whatsoever for the accuracy of what's in that report,

and you have failed to establish a procedure to remove

the name. Why aren't you viable under Monell?

MR. COATES: The one thing I said that it

wasn't doing is figuring out whether this met the

policy, custom, or practice requirement of Monell,

because under its case law it doesn't have to do so.

And in fact, in the fee order, it said -- declined to do

so and, in fact, it has remanded on the damage portion

of the case, acknowledging that the Monell claims remain

open.

We also contend that for purposes of

potential Monell liability that we may not be free under

State law to add additional procedural protections.

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That area may be preempted by the State through implied

preemption under California law.

JUSTICE ALITO: Now, if that's the case, why

wouldn't one of the following be possible?

If you -- you say we have no discretion

here, we are required -- we are totally bound by the

State procedures; we can't add any new procedure. They

say, well, that's unconstitutional. So -- and you are

choosing to do something that is unconstitutional that

is required by State law.

In that situation, won't you have adopted a

policy?

MR. COATES: The way the lower courts have,

in the context of liability, viewed this requirement

where State law requires a local entity to do something

is they have virtually said that they are standing in

the shoes of the State. Under those circumstances, it's

essentially the State making the decision. They are

just using the county as a -- as the local entity, as an

instrument. And so it's essentially an Ex Parte Young

Eleventh Amendment-type case.

JUSTICE ALITO: An Ex Parte Young situation.

CHIEF JUSTICE ROBERTS: And they have sued

the State here, right?

MR. COATES: They have, yes.

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CHIEF JUSTICE ROBERTS: Or under Ex Parte

Young?

MR. COATES: They have indeed sued the State

here and we submit that they can get full relief with

respect to the database from the State, should they

choose to pursue that.

JUSTICE SOTOMAYOR: Who would they sue to do

that? As I am reading ANCRA, it makes the California

Department of Justice only the repository of reports.

MR. COATES: They may -

JUSTICE SOTOMAYOR: So who -- who do they

sue in the State to -

MR. COATES: They have sued the Attorney

General, though the Department of Justice maintains the

database. The Department of Justice issues the

regulations on how local entities go about -- are

required to report to the database. So that is the

defendant in this case, and that is who they would sue.

I submit they could get relief by being removed from the

database or require the State to enact procedures to

allow them to have a determination made as to whether

they should be removed or not.

As it now stands, the statutory scheme

doesn't have that and the county's view is that it's not

free to just go out and invent procedures, and other

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counties in the state of California aren't free to

invent their own procedures. That's one of the elements

of this case that I think really underscores the Monell

concerns with Federalism, because it's an important

question of the manner in which States relate to the

municipalities and the way States divide up

responsibility for who does what, and in a fairly

important area of the law.

JUSTICE ALITO: What would happen under

California law if you said, we agree with the

Respondents that additional procedures are

constitutionally required, so even though California law

doesn't allow this, we are going to create these

procedures because we have to comply with the

Constitution.

What would your situation be under

California law? Would you be subject to -- what could

the State do to you?

MR. COATES: There would be a possible

preemption argument. They could halt California -- they

could halt Los Angeles from enacting the statute, from

utilizing the procedural protections.

JUSTICE ALITO: I'm sorry?

MR. COATES: They could say it is preempted

and move for an injunction from doing it, because they

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are interested in maintaining the database.

JUSTICE GINSBURG: Who is the "they" who

would do this?

MR. COATES: The State of California would

come in and argue that the county was preempted from

using these regulations. They would argue that it slows

down the database or what have you. But they could

theoretically do that under California law.

JUSTICE GINSBURG: This is getting further

removed from the situation that we're dealing with,

because the State has already admitted liability and not

contested that it owes fees.

So what is the relief that is left? If the

State has admitted liability, what happens at that

point? Shouldn't the record be expunged?

MR. COATES: I believe the appropriate

remedy for the plaintiffs would be to apply in a

district court if they believe they have a valid

injunction on valid declaratory relief vis--vis the

State and move forward from there.

They could certainly do that and have

themselves removed from the database or order the State

to create statutory procedures to allow them a hearing

to determine whether they should be removed from the

database. They are perfectly free to do that, because

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it's the State statute and it's the State database, and

the State is a party here.

JUSTICE GINSBURG: But the State has already

conceded. It's been adjudicated a constitutional

violator, and the State is now saying, you know, we are

not going to contest that anymore. Doesn't the State

have to do something?

MR. COATES: They should. They absolutely

should. And if the State drags its feet, the

appropriate remedy is to file a motion for an injunction

as against the State, to have them issue the proper

procedural protections or to remove them from the

database.

But we submit that at this point, it is not

appropriate relief as against the county. That issue

still remains open. We can still go back into district

court and lose that, but at this point you still have to

make the inquiry, whether it's a county policy, custom,

or practice that is inflicting the injury that is the

subject of declaratory relief here.

And, I mean, I think at bottom, at the end

of the day, the point is that plaintiffs really haven't

identified any circumstance in which, in a proper case

applying the Monell standards, you would not be able to

get relief. And the danger of going forward with the

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Ninth Circuit's kind of amorphous standard where you

just compose declaratory relief independent of whether

or not there is a policy, custom, or practice, the kind

of sloppy order that we have here, granting declaratory

relief where we have a 90-10 fee split and it is unclear

how that decision was made, because it is not made

through the prism of any sort of causation standard

articulated by this Court.

So we would submit that Monell provides

clear guidelines, although sometimes difficult to apply

in certain cases, but they are clear guidelines. And

the Court in Monell said that those causation

requirements applied to damages, injunctive and

declaratory relief, and we believe that is a solid rule

that supports the interests of Federalism and -

JUSTICE GINSBURG: It's true that all cases

that at least come to us under Monell have involved

damages.

MR. COATES: That is correct. They have

been damages cases. But the -- but Monell itself

doesn't talk in terms of guarding the public FISC, which

is how Chaloux, the Ninth Circuit case that departs from

Monell with injunctive and declaratory relief, the way

it characterizes it, doesn't.

Monell was concerned with interpreting the

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language of section 1983, the shall subjective: "Shall

cause someone else to subject a person to a violation."

They said that did not really conform to respondeat

superior principles. And looking at the legislative

history, the 42nd Congress in enacting section 1983 was

critical to justice in Monell with the rejection of the

Sherman Amendment, which he said was concerned mostly

with not imposing coercive liability on the municipality

for the actions of others.

They were concerned not to save money

necessarily, but the way in which a Federal court would

exercise coercive power over a public entity. And we

submit that it is just as important to have those

guidelines when directly coercing through injunctive and

declaratory relief as it is indirectly doing it through

the threat of damage claims.

JUSTICE KENNEDY: Can Bivens actions be

brought against municipalities?

MR. COATES: I do not believe so, Your

Honor. I believe via section 1983 -

JUSTICE KENNEDY: And you cite the authority

for -- would -- do you think that the rationale for that

is that since Congress has created an express cause of

action, this impliedly preempts a Bivens-type action.

MR. COATES: Yes, that's my recollection.

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That's my recollection.

JUSTICE KENNEDY: And have -- have we said

that in a case?

MR. COATES: Off the top of my head -

JUSTICE KENNEDY: Because it seems to me it

would help you in this case, because you would say,

well, if there's a real problem, the city -- the injured

party can sue for an injunction. Perhaps the State was

against the party first, and he can -- he can raise a

constitutional defense or he can bring an action for an

injunction, and it doesn't have to be under 1983. And

it would seem to me that that would resolve it. And you

then wouldn't have to pay attorneys' fees because there

is no provision in the statute for it.

MR. COATES: Well, I mean, it is independent

of what remedies might occur under State law. I'm not

trying to say that that's the exclusive -- that section

1983 is the exclusive means for all relief. You can

certainly there state -

JUSTICE KENNEDY: No, I'm talking about

under Federal law.

MR. COATES: My understanding with respect

to a general constitutional claim is it is section 1983.

That is how Congress has specified the remedy. There

are other portions for other types of conduct -- section

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1986, section 1985, for example -- but I think the sort

of general constitutional claim is subject to section

1983.

If there's no further questions, I would

reserve the balance of my time for rebuttal.

CHIEF JUSTICE ROBERTS: Thank you, Counsel.

Mr. Pincus.

ORAL ARGUMENT OF ANDREW J. PINCUS

ON BEHALF OF THE RESPONDENTS

MR. PINCUS: Thank you, Mr. Chief Justice,

and may it please the Court:

Let me begin, perhaps, by trying to answer

Justice Alito's question about what is at stake here.

Monell held that 1983 as a causation requirement. And

the Court has, in a series of decisions, elucidated what

a plaintiff must prove in the context of claims for

damages to satisfy that causation requirement, and it's

held in particular that the mere fact that a city

employee committed a violation under color of State law

in the past is not itself a sufficient link to the

municipality itself. And the decisions have been

devoted to elucidating precisely what else is required

in order to show the sufficient link to the

municipality.

The question here arises in what, we submit,

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is the very different factual context of ongoing

constitutional violations. And we think that although

the jurisprudence that's developed under Monell has been

devoted to fleshing out this other context, the Court

should take a look at whether that jurisprudence is the

appropriate way to determine whether the causation test

is satisfied when there is an ongoing violation, because

there is an easier way to do it.

JUSTICE SCALIA: It's the same statutory

language that you are relying on, right, that was held

to require causation in the one case? Why wouldn't it

require a similar causation in the other?

MR. PINCUS: Your Honor, we believe it does

require causation, but the question is what kind of

facts have to be shown to prove causation. And, in

particular, once a plaintiff has shown what is required

otherwise to show the violation, to show standing

prospective relief and obtain prospective relief, we

think those elements will necessarily encompass the

showing that is required to prove a link to the

municipality itself. And what our concern -

JUSTICE KENNEDY: But then you are not

really hurt, or the system isn't really hurt by the rule

that the city asks for. If it's so easy to establish a

policy or custom requirement in cases where prospective

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relief is sought, then that's the answer. You can

establish it. End of case. But you don't get it unless

you establish the custom and practice.

MR. PINCUS: Your Honor, we think that it

should be easy. It should be present in every case.

Our concern is that courts might be confused by the idea

that what they are supposed to do is apply the

jurisprudence that's really been developed to target who

was responsible for this act that happened in the past,

and not realize that there is really a quite more

expeditious way to determine in the future.

Here, it's quite clear the court of appeals

said there is an ongoing failure by the county to

provide due process.

JUSTICE KENNEDY: I'm not sure I understand

your submission. And it could be I'm just obtuse on

this point.

I interpret your remarks as saying that

Monell does apply when there is an injunction. Do I

misinterpret you?

MR. PINCUS: I guess I need to clarify.

JUSTICE KENNEDY: And your answer is it's so

easy to do, it doesn't make any difference. Well, then,

why are we here? Why isn't the city right?

MR. PINCUS: Because I think what the city

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has said, Your Honor, is what Monell requires is for the

plaintiff to show something in addition to what the

plaintiff has to -- to what the plaintiff has to show

to, A, prove a constitutional violation, and B, prove an

entitlement to prospective relief.

The plaintiff says there is an additional

element that may or may not be present, and our

submission is that the Ninth Circuit, although its

rationale might have been slightly off, was correct in

saying once a plaintiff has shown an ongoing

constitutional violation and that the plaintiff is

entitled, under standing principles and principles

governing prospective relief, to relief, the plaintiff

has necessarily shown a link to the municipality.

CHIEF JUSTICE ROBERTS: So that's what you

think. So you agree -- it struck me that your argument

could have been made by your friend on the other side.

You say if you get an injunction, you must have shown

municipal policy, practice, or custom, and therefore,

you agree that a municipal policy, custom, or practice

is required. That's what he thinks.

MR. PINCUS: Your Honor, we agree that

causation is required. I think the only slight fill-up

that I would make to your comment is, I think, in some

of the jurisprudence that's developed focused on finding

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responsibility for past conduct. Some of the ways

courts have developed to decide those questions -

JUSTICE SOTOMAYOR: Counsel, could you stop

talking in the abstract -

MR. PINCUS: Sure.

JUSTICE SOTOMAYOR: -- and give me an

example. Give me an example of a situation where a

State official under Ex Parte Young has been held to

have violated the Constitution where a Monell finding

had not been applied already.

MR. PINCUS: I'm sorry, Your Honor -- where

the Monell couldn't be satisfied?

JUSTICE SOTOMAYOR: Exactly.

JUSTICE KENNEDY: Well -

MR. PINCUS: I think this case, to the

extent that what the city is saying is that Monell was

not satisfied here, is a perfect example, because

here -

CHIEF JUSTICE ROBERTS: Monell doesn't apply

to State officials, right?

JUSTICE SOTOMAYOR: No. I was trying to do

just an analogy in terms of -- because one of his

arguments has been that Ex Parte Young doesn't have,

inherently, a Monell requirement.

MR. PINCUS: Well, if I may, Your Honor,

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just to respond to the Chief Justice's statement -

CHIEF JUSTICE ROBERTS: Thank you.

MR. PINCUS: The Petitioner's position is

that this standard would apply also in Ex Parte Young

actions against state officials. The Court -

CHIEF JUSTICE ROBERTS: That, of course,

isn't before us.

MR. PINCUS: It's not before you. The

Court's jurisprudence is a little uncertain as to

whether that might or might not be true. There

certainly hasn't been a holding to that effect.

But one of the reasons we think this is an

important issue to be very clear about is because, at

least on Petitioner's view, and possibly on the view of

how -- depending on how the Court analyzes the case,

this would affect not just the universal cases on

municipalities, but also whether relief is available for

ongoing constitutional violations in the very broad

group of -

CHIEF JUSTICE ROBERTS: Well, that would

require -- that would require us to get into the

question of whether Ex Parte Young is a fiction or

substance, which I certainly wouldn't like to get into.

MR. PINCUS: Well, but it might not, Your

Honor, because it might turn just on whether -- I mean,

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Ex Parte Young suits against State officials are under

1983. And so to some, I think the argument that

Petitioner would make is if causation is required under

1983, well, Ex Parte Young is just a vehicle to get

those people -- to make those people person. So

whatever the Court were to decide about causation

wouldn't necessarily apply in those Ex Parte Young

issues.

JUSTICE ALITO: I have a question similar to

Justice Sotomayor's. Suppose we were to hold that the

Monell requirement applies to prospective relief,

injunctive and declaratory relief.

Can you provide an example of just an

unacceptable consequence that would follow from that

holding, a situation in which that holding would, in

your judgment, be one that we would not want to accept?

Well, what difference does it make?

MR. PINCUS: I think, Your Honor, we gave

some examples in our -- in our brief. And one I would

give is the example of the marriage license clerk who is

engaging in unconstitutional -- who is violating the

Constitution and denying marriage licenses. He or she

is not -

JUSTICE ALITO: All right. Now we have a

situation. The clerk denies the marriage license. And

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then I presume you can take the matter before a

municipal policymaker, and the municipal policymaker

will say, this is our policy, license denied, or this is

not our policy. And then Monell is satisfied, right?

If the policymaker says, it is our policy to

deny licenses under these circumstances, that's a

policy.

MR. PINCUS: It may be, but I don't think

the Court has required that there be some exhaustion of

administrative remedies. I guess the way I would look

at the case is, if the party who is being injured filed

suit against the municipality and against the official

and said, I would like a marriage license, that, as the

court heard the case and found yes, there is an

unconstitutional denial going on there, the fact that

the lawsuit existed and there was an ongoing violation

that had been by virtue of the lawsuit brought to the

attention of the policymaker, and if in that case the

judge decided that prospective relief is necessary,

which necessarily means that there was some finding of

ongoing violation under Lyons and those cases, that

there would be a link to the municipality.

And my concern is not that properly applied

causation requirement would weed out cases. It's that

because the focus of the Court's jurisprudence up till

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now has not been on the ongoing violation as the

possible source of a policy, but rather was there a

policymaker involved in the initial denial, unless if

the court were to say there's an extra step, it would

make very clear that the focus of attention is not the

initial action, in terms of finding a policy, but on the

day -- as the matter ends up on the day the district

court is deciding whether or not to grant relief, that

those facts are relevant in deciding whether there is a

policy, as well.

JUSTICE BREYER: What is the answer to

Justice Alito's question? The -- a clerk doesn't give a

license to someone he should. Right? Now, you bring -

that person brings a lawsuit against the city.

Now, if Monell applies, in order to win he

has to show that it was the city's policy to deny it, or

maybe all he has to show is the city's policy was to

leave it up to the clerk. And if he finds it's the

city's policy to grant it, he's going to lose, which he

should, because there was no such policy. The clerk was

wrong.

MR. PINCUS: Right.

JUSTICE BREYER: What's the harm in that?

Now, the next question would be: If we show

the third, is there any ground for injunction against

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the city? And on that one, I don't know. Maybe there

is. Maybe conditions have changed. I don't know.

But what's the harm to anybody in doing -

requiring that in order -- just what I said? What's the

harm?

MR. PINCUS: Your Honor, it's the -- I think

in your hypothetical -- I may have misunderstood it, but

this was a sort of a one-off decision by the -- by the

clerk.

JUSTICE BREYER: There are two

possibilities -- three possibilities. The clerk denied

the license.

A, there is a city policy which requires him

to do it; B, there is a city policy that permits him to

do it; C, there is a city policy that forbids him to do

it. All right.

Now, those are the only three I can think

of. And it seems to me in A or B, you could recover

against the city, and in C you couldn't.

MR. PINCUS: Well, I guess my -

JUSTICE BREYER: So -- so -- so, why -

JUSTICE SCALIA: Or there is no city policy.

MR. PINCUS: Well, I was just going to add

that -- I was just going to add that example, where the

city just is agnostic. The clerk is going on -

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JUSTICE BREYER: If there is no city policy,

then the city hasn't done anything wrong under Monell.

Now, is that what you're arguing? That the

city should, even though it has no policy, nonetheless

have to have attorney's fees, is open to suit, et

cetera, and forget about Monell? Is that your argument?

MR. PINCUS: My argument is this, Your

Honor. If there is one clerk who issues marriage

licenses and that clerk continues to deny the marriage

license up until the day of the lawsuit, that the

plaintiff in that case is entitled to relief, to

injunctive relief, because the city, by virtue of

tolerating the conduct, has adopted a de facto policy of

permitting it. And the alternative is -

JUSTICE BREYER: If you are right about

that -

MR. PINCUS: -- that there is no relief.

JUSTICE BREYER: All right. If you are

right about that, there is no problem for you, because

you are saying: Yes, you need a city policy, and this

counts as a policy.

MR. PINCUS: That's exactly right, Your

Honor. And our concern is that the Court's

jurisprudence, because it has been focused on

retrospective one-off, for the most part, actions,

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doesn't make clear what the answer is in that situation.

CHIEF JUSTICE ROBERTS: Justice Breyer's

question said you need a city policy, and you said

that's exactly right. So I think the case is over. The

issue is whether you need a city policy, and your friend

thinks so, and you think so.

MR. PINCUS: Well, Your Honor, I -- I think

that -

JUSTICE BREYER: But the Ninth Circuit

didn't.

MR. PINCUS: Well, first of all, the Ninth

Circuit didn't. And I -- I go back to -

JUSTICE KENNEDY: Did not? The Ninth

Circuit did not?

MR. PINCUS: Did not.

JUSTICE KENNEDY: You agree with that

statement, yes?

MR. PINCUS: And I go back to our position,

which is: If causation is required, which it is, the

question on which I think guidance for the lower courts

would be very helpful is not to simply say Monell is --

Monell applies; adopt our jurisprudence that was focused

on retrospective conduct or prospective conduct, but

rather, yes, Monell's causation requirement applies, but

we recognize in this context it is likely to be

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satisfied by the other things that the plaintiff is

required to prove.

JUSTICE GINSBURG: That is not what the

Ninth Circuit -- the Ninth Circuit said, we are not

deciding the Monell question; we are leaving that -- we

are leaving that open. But Monell -- we are not

deciding because Monell doesn't apply to forward

relief -- declaratory relief or injunctive relief. And

so the Ninth Circuit has rejected the statement in

Monell itself that it applies to all forms of relief.

And so that's the question we are confronted

with. Because we have had experience in Monell cases

only with damage actions, was -- was the Monell decision

wrong in saying that that framework applies to

declaratory and injunctive relief as well?

MR. PINCUS: And, Your Honor, my response to

that is that Monell was not wrong. I don't know that

Monell squarely addressed the question, but clearly the

statute has a causation element and it has to be met.

But what Monell didn't grapple with, because

it itself was a case involving only a past

non-continuing event, is: How does that causation

requirement get met in a case involving an ongoing

violation?

And we think that although the Ninth Circuit

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may not have had its reasoning quite right, what -

the -- the bottom line was right, in the conclusion that

when there is an ongoing violation and the other

requirements for relief are met, Monell/the 1983

causation requirement doesn't impose an incremental

burden on the plaintiff. It is necessarily satisfied by

the other things that the plaintiff has to prove.

JUSTICE SOTOMAYOR: I -- I -- I'm still -- I

am sort of asking for a hypothetical and to take it from

the abstract.

Tell me what's -- here, you define the

ongoing violation as the failure to institute

procedures, I'm assuming, to remove a name from the

registry, correct?

MR. PINCUS: Uh-huh.

JUSTICE SOTOMAYOR: That's the ongoing

failure that you are alleging entitles you to injunctive

relief?

MR. PINCUS: I think that -

JUSTICE SOTOMAYOR: Or was it that you

thought the city could remove the name?

I'm not quite sure what it is that you

think -- what was the continuing violation?

MR. PINCUS: The continuing violation here

is that every day for the past 9 years, our Respondents

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have suffered a violation of their due process rights,

because they have not been given any sufficient process

to show that they are wrongfully included in the index.

JUSTICE SOTOMAYOR: So to prove a future

violation, you have to show that the municipality can do

that; correct?

MR. PINCUS: And the court of appeals held

that twice in this case. The court of appeals twice

said -

JUSTICE SOTOMAYOR: Right. So why isn't

that a policy, practice, or custom? That's what I'm

trying to understand: How -

MR. PINCUS: We think it is, Your Honor.

JUSTICE SOTOMAYOR: -- their failure or

omission could be anything but.

MR. PINCUS: We think it is, Your Honor, and

that's why we -

CHIEF JUSTICE ROBERTS: But you don't think

that -

MR. PINCUS: -- think it is in this case.

CHIEF JUSTICE ROBERTS: I think your friend

agrees. But -- but how can the city have caused the

violation in the absence of a city policy, custom, or

practice?

You say you have to show causation to get an

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injunction. The only way to show that the city caused

the problem is to show that they have got a policy,

custom or practice, including one that might be shown by

inaction. But you still have to show that and that's

all Monell requires.

MR. PINCUS: And there is that inaction

here, because the court of appeals -

CHIEF JUSTICE ROBERTS: Now you are arguing

whether Monell was satisfied or not, and you are get ago

chance to do that on remand because the Ninth Circuit

has said we are giving -- we are making the city pay and

now we are finding out if they violating anything.

MR. PINCUS: I agree, Your Honor, but -- but

by -- by issuing a declaratory judgment and by finding

that there was no standing for it here, the lower court

necessarily concluded that the city -- that there that

was the readressability element was satisfied and that

the continuing harm element was satisfied.

CHIEF JUSTICE ROBERTS: So the Ninth Circuit

was wrong to send it back for a hearing?

MR. PINCUS: The Ninth Circuit -

CHIEF JUSTICE ROBERTS: Because you have

already shown Monell was satisfied.

MR. PINCUS: The Ninth Circuit, I think

devised -- recognized that there were two different

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claims in this case. The Ninth Circuit sent it back for

what might be a different questions, which is damages

liability. In other words, damages, the question -

CHIEF JUSTICE ROBERTS: -- but, yes,

damages, but turning on whether Monell was satisfied.

It was a hearing about Monell.

MR. PINCUS: But -

CHIEF JUSTICE ROBERTS: Go ahead.

MR. PINCUS: I'm sorry, Your Honor. I think

this is one of the -- one of the issues, I think,

with -- with simply saying as my friend does, that

Monell applies. For the damages question, for example,

whether the damages started accruing on the very first

day the process wasn't -- wasn't provided, there might

be a question about whether on that day there was a

municipal policy in 2002 when this controversy started.

It might be that on that day there was no

municipal policy one way or the other. Maybe no one has

confronted it. Maybe nobody confronted it until 2006.

But I think one thing -- so for damages

there is a somewhat different inquiry which is, for each

day for which damages are claimed, was that is the

policy requirement met. This is a different question

which is on a going forward basis to provide -- to -- to

be entitled to the prospective relief, what kind of

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causation is made. And that's exactly -

CHIEF JUSTICE ROBERTS: How can you get

relief -- how can you get relief going forward under

Monell unless there has been a city violation before?

Otherwise what the injunction you were getting is just

an injunction saying don't violate the law and the city

has said we haven't, because you haven't shown that we

have policy, practice, or custom.

MR. PINCUS: But it is not necessarily true

in this particular case that the policy -- that the

policy was in effect from day one as opposed to

something that -- that came into -- that -- the

municipal responsibility might not have come to pass

until later when a policymaker -- the city might say

when -- when these decisions were additionally -

initially made, no policymaker knew what our process was

for determining the accuracy fees.

CHIEF JUSTICE ROBERTS: If you were sued -

MR. PINCUS: The lawsuit got filed and in

2006 somebody decided because the city took the position

in the lawsuit and has -- has determined that it is not

going to implement a policy -

JUSTICE SCALIA: But the test would be the

same going forward, right? The test would be the

same -

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MR. PINCUS: But the facts -

JUSTICE SCALIA: The same test would apply

to both damages, going forward after the date of the

filing of the suit, and injunction according to your

reasoning, right?

MR. PINCUS: If -- if -- if the damages -

if the injunctive test is satisfied, yes. From the time

that that is satisfied -

JUSTICE SCALIA: From the time the lawsuit

is filed both -- the injunctive test will also be the

damages test.

MR. PINCUS: But the difference, I think,

Your Honor, is to recover damages, the plaintiff doesn't

have to show that the other elements of the damages

claim don't encompass the kind of requirements of

municipal -- of municipal involvement that is

encompassed within the other elements of the prospective

relief claim. So when a case has both, our submission

is that there is no need -- the plaintiff does not have

to show something more to show causation than he has to

show to show the violation and to show the entitlement

to ongoing relief.

JUSTICE SCALIA: Let me follow this. To

bring a damages claim do you have to show past damages,

or can you just collect damages from the date you filed

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suit?

MR. PINCUS: I think it means you would have

to show all the requisites but you could decide that you

just want to collect damages from the day you filed the

suit.

JUSTICE SCALIA: Well, in -- if that's the

complaint that you filed, then -- then in that kind of a

suit the test for damages and the test for injunction

would be precisely the same; and you would be able to

get damages on the basis of the mere fact that the suit

exists, right?

Because they wouldn't be fighting it if it

wasn't their policy.

MR. PINCUS: Well, there might be a question

about the precise timing on which a -

CHIEF JUSTICE ROBERTS: I'm sorry, answer.

MR. PINCUS: On which -- it might not be the

actual day of the filing of the complaint. There might

be a question about when an official got to know.

This -- this suit has been going on for so long.

CHIEF JUSTICE ROBERTS: Well, but it's

not -- defending the suit doesn't give rise to a

municipal custom, policy or practice? They may have -

somebody comes in and says this what's going on and they

may say, well, we don't -- we dont' think that's

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unconstitutional. So they are going to defend the suit.

That doesn't mean that they adopted a policy

to do what they -- the individual employee has been

alleged to have done.

MR. PINCUS: And is continuing to do.

CHIEF JUSTICE ROBERTS: Well -- or

continuing to do, I mean, the suit doesn't satisfy the

requirement of showing a policy or practice, because

they may defend on the ground that it is not

unconstitutional. They may say, look, this isn't our

policy, this isn't our practice, but we are going to

defend our employee because we don't think it is

unconstitutional.

MR. PINCUS: And I think that is -- that is

an example, to go back to Justice Sotomayor's question,

of a case that would be problematic. Because at the end

of the day when the -- when the district judge issues

his -- says, sorry, city, you are wrong, this -- this

employee has continued to engage in unconstitutional

action up until today, and then the question is, should

the -- should the plaintiff in that case be entitled to

some prospective relief from that violation, or is there

some additional requirement?

And our position is, once that showing has

been made of a violation and once a showing has been

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made that would be under Lyons that say, yes, the city

-- this is attributable to the city, that should be

enough.

CHIEF JUSTICE ROBERTS: And so the city -

MR. PINCUS: Under -

CHIEF JUSTICE ROBERTS: The city is in a

Catch-22 position. Whenever they are sued, they have to

say if we defend this, we are going to be liable under

Monell; but if we don't defend it, then, you know, our

policy is being changed. Or we might -- we might want

to have this policy, we might not. We didn't know this

clerk was doing that, but we might think it's a good

idea, we might think it's a bad idea.

The cases are not always going to be as

clear as the hypotheticals in your brief. It seems to

me that it's a bit much to tell the city, when you have

to choose whether to defend a suit, you are in fact

choosing what policy or practice to have going forward.

MR. PINCUS: But the alternative is to say,

even if it turns out that there is unconstitutional

action going on, that the city has become aware of, that

the plaintiff who shows that does not get any relief and

has to continue to suffer the unconstitutional violation

for some indefinite period of time.

CHIEF JUSTICE ROBERTS: Well, you've got to

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get relief against the city. Because the city is not

responsible for what happened until they adopt a policy,

practice or custom. Now if they are told this is

unconstitutional and they decide to stick with it, then

they're -- that's their policy and custom and you can

get an injunction against them.

MR. PINCUS: But at the time of the lawsuit

the plaintiff can't get prospective relief against

anyone, because he can't get prospective relief against

the city. My colleague's view is an official capacity

suit against the city employee is subject to the same

limit.

CHIEF JUSTICE ROBERTS: He is not -- he is

not entitled to prospective relief against the city,

because the city has not caused the alleged harm. Until

you establish a policy, practice or custom.

MR. PINCUS: But that -

CHIEF JUSTICE ROBERTS: If you establish

what the employee is doing in a suit against the

employee, which the city is defending because he's one

of their employees, then the city is put to a choice.

Once -- I suppose once the legal process has concluded

they have to decide whether they have to continue that

or not.

MR. PINCUS: But, Your Honor, I think the

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consequence of that structure is, that the city can

leave the employee -- there is no remedy against an

employee who is engaging in unconstitutional conduct.

JUSTICE BREYER: -- against State. I mean,

here you have a statute and the statute doesn't have any

method to get out off -- get out of it, even when you

should. Their claim is this is a State matter, the

State's responsible, it's unconstitutional, go sue the

State and tell the State to do it. Now that's a -

what's wrong with that position?

And either they had the power to do it under

State law or they didn't. If they did have a power to

do it then you probably will show a practice. If they

didn't have the power to do it, why should they do

anything against them. You should tell the State, go do

it.

MR. PINCUS: Well, two answers, Your Honor.

JUSTICE BREYER: What is wrong with that?

MR. PINCUS: The Court of Appeals held that

they do have the power to do it. And we think that's

settled for purposes of this case.

JUSTICE BREYER: Why did the State -- why

did they send it back? I thought they sent it back in

order to determine whether there was some policy against

doing it.

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MR. PINCUS: Look, they sent it -- one of

the reasons they sent it back was to -- for -- so that

the procedures could be provided or an injunction could

be entered, directing the county to do what the statute

requires, which is exercise its responsibility under the

statute to make sure that the submissions are accurate.

JUSTICE SCALIA: Mr. Pincus, why -- why do

you accept, as I think you did under the Chief Justice's

question, that if the city has a policy which it

believes is constitutional, but in fact is

unconstitutional, that is not a city policy for purposes

of Monell?

MR. PINCUS: If I accepted that, I was

wrong, Your Honor.

JUSTICE SCALIA: Well, I think you did.

MR. PINCUS: I think -- I think it is a

policy. And I think -

JUSTICE SCALIA: Even if they think it is a

policy, it's still a policy, isn't it?

MR. PINCUS: Yes. They don't have to know

that their conduct is unconstitutional. And the other

thing that the Court has -

CHIEF JUSTICE ROBERTS: What I'd like the

answer to is whether or not merely defending the

employee in court is sufficient to establish that the

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city has that policy, custom or practice.

MR. PINCUS: I'm not sure that it's the act

of defending it in court, Your Honor. I think it's the

ongoing conduct, almost certainly, maybe it would be a

question of fact, will by virtue of the lawsuit be

brought to the attention of the policymakers.

CHIEF JUSTICE ROBERTS: Oh, sure. Sure.

You are back where Justice -- Justice Alito was

commenting, well, that at some point you have to bring

what you were complaining about to the attention of the

city. You dismiss that as an exhaustion requirement,

but -

MR. PINCUS: No, I'm not -- I don't think

that courts have said that filing a lawsuit is an

impermissible way to do that. And I think that it could

be done by a letter also. But the Court has said, for

example, that there is a deliberative difference prong

to the Monell retrospective test as well. So that if,

in the hypothetical we have been talking about, if

policymakers know of the ongoing conduct and they are

indifferent to it, which they would be presumably if

they are letting it continue, that that might be

satisfied.

But -- but to us that just goes to the

notion that it's hard to come up with a situation where

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there will be an entitlement to injunctive relief and

the requisite causation won't be satisfied, and

therefore saying that there is this additional element,

it sort of creates more harm than good because it's

going to serve -- on a search warrant.

JUSTICE GINSBURG: You realize that -- the

Ninth Circuit to have said, there is a policy whatever,

because the city's notice and they have done nothing

about it, therefore -

MR. PINCUS: Right.

JUSTICE GINSBURG: But the -- the Ninth

Circuit didn't say that. It said we are not going to

decide Monell liability; we are just going to say Monell

doesn't apply. And if you are just thinking well,

what's at stake? You say, all of our cases involve

damages, that's money. What is involved here?

Attorneys' fees, that's money. So where do we bracket

this? Do we bracket this with the -- with damages,

because that's money, and that's what's involved here,

attorneys' fees? And the only thing it supports is the

award of attorneys' fees, right?

MR. PINCUS: That's the only thing that the

county petitioned from, Your Honor, but I think more is

at stake here because if this rule applied then it would

not only preclude attorneys fees, it would also preclude

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the awarding of any relief. And so although it happens

to arise here on the attorneys fees context, but if this

causation requirement is more than just an extra box to

check in terms of something that's, for which the

requirements will be satisfied, if it does scream out

some cases, then it will not just mean no entitlement

for attorney's fees, it will me no entitlement to

prospective relief and we think that is significant.

JUSTICE ALITO: I'm still waiting to hear

what cases it will screen out. I haven't heard an

example of a case that it would screen out.

MR. PINCUS: We think properly applied it

shouldn't screen out any case because -

CHIEF JUSTICE ROBERTS: Thank you, counsel.

Mr. Coates, you have 13 minutes left.

ORAL ARGUMENT OF TIMOTHY T. COATES

ON BEHALF OF THE PETITIONER

MR. COATES: I think it's telling that we

don't have an example of circumstances where applying

the Monell standards someone couldn't get prospective

relief where it was appropriate where the injury was

actually inflicted by the municipality. I think

Plaintiff's view is that it's kind of a tail wagging the

dog, that having established declaratory relief that

establishes causation.

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JUSTICE SOTOMAYOR: Well, they gave you an

example. Clerk says I'm not giving marriage license to

interracial couples. I think that's constitutional.

Clerk resigns and the municipality says we think he was

right, that's constitutional. It's not our policy. We

didn't really think about it, but we think it's

constitutional.

You're arguing that because it was the agent

who made that decision, was the city had no policy, you

can't give injunctive relief ordering the city to give

you a license.

MR. COATES: Assuming that the city's

acceptance of that policy wasn't what led the clerk to

make that decision. It sounds like you are talking more

of a ratification type thing on consideration. Yeah, we

think he did the right thing.

JUSTICE SOTOMAYOR: How is that different

from what the Chief Justice proposed, which is, no, we

didn't have a policy, but we are going to defend you

anyway because we think it's okay. Now you are calling

that a policy?

MR. COATES: No. I'm saying that there are

circumstances under which you have a policymaker that

specifically ratifies and says this is affirmatively our

policy, we think it's correct, as opposed to legalizing

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it.

JUSTICE SOTOMAYOR: They are not going to

say that, they are going to say, policy, no policy, we

don't even think that way. What he did was okay, we're

going to defend that, it's constitutional. And the

court says what he did is not constitutional. X has to

be done instead. By you, the municipality, even though

the agents that you had before was acting on his or her

own.

MR. PINCUS: In those circumstances where

the public is not a party, you can only hold the public

party liability when its policy actually inflicted that

injury. These people re-apply for a license and they're

denied and a policymaker knows that, then they

absolutely are going to come in under Monell and I think

it's going to be a sign -

JUSTICE SOTOMAYOR: So we are now going to

have a situation where what you are proposing is that

you have to sue the individual actor, get a ruling on

the constitutionality of whatever is being done, and

then let that suit finish and ask the municipality to

perform or not perform, and if it doesn't then you

relitigate all these issues?

MR. COATES: In the second lawsuit the

municipality is being held liable for its

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unconstitutional conduct. That's because the injury in

the second case is absolutely inflicted as a result of a

municipal policy, custom or practice. That's why.

In the first one you are talking about, an

injury that has inflicted by the employee, significant

point here, again, and the Ninth Circuit Court

recognizes because, again, it didn't apply to Monell in

granting declaratory relief and issuing the attorneys

fees, it conspicuously did not. It expressly reserves

the Monell issue in the main opinion.

It did so because on rehearing the initial

opinion didn't say anything about Monell. On rehearing

we pointed out that those issues were still open, more

specifically the issue of whether we were even free

under California law to create these additional

procedures. That issue remains in this case. It's a

significant issue. Even the Ninth Circuit admits that.

JUSTICE ALITO: But whether you were free to

do it or not under California law, how can there not -

how can it not be your policy that you have refused to

provide these procedures which they say are

constitutionally required? Your policy is to follow an

arguably unconstitutional State requirement rather than

comply with what is arguably required by the

Constitution. Why isn't that a policy?

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Federal court has to decide the issue of California law,

namely, whether you have freedom under this particular

statute to add an additional procedures to the

California statute?

MR. COATES: They will have to -- whether

we -- yes, I believe they will, to determine whether, in

fact, it's a county policy or custom.

JUSTICE ALITO: Well, isn't that something

that should be decided in State court? Why isn't this a

beef between the State and the State's creature, the

County of Los Angeles?

MR. COATES: It's very much like the

McMillian -- the McMillian case, Your Honor, with the -

the -- the State sheriff in Alabama, who's a county

sheriff, and the question was, for Monell purposes, does

he act on behalf of the State or does he act on behalf

of the county? And the Court said that determination is

informed by State law. It ends up being a question of

Federal law, but it is informed by State law.

So, the short answer is the court does that

all the time in Monell damages actions -

JUSTICE KENNEDY: And California itself or

the Ninth Circuit had a case in which the county sheriff

was directed by a judge to garnish certain wages or

certain accounts, the sheriff had no choice, apparently,

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Documents

U.S. Supreme Court Transcript for LA County v. Humphries