U.S. Supreme Court Transcript for LA County v. Humphries
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Transcript of U.S. Supreme Court Transcript for LA County v. Humphries
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IN THE SUPREME COURT OF THE UNITED STATES
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LOS ANGELES COUNTY, CALIFORNIA, :
Petitioner :
v. : No. 09-350
CRAIG ARTHUR HUMPHRIES, ET UX. :
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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.
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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
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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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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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danger16:25continue 7:18 45:3,16 49:6 45:3 45:17 54:10,11
database 8:1841:23 42:23 50:6 52:5 53:1 defense 19:10 different 21:19:14 13:5,15,1745:22 53:9,17,20 defensible 52:19 35:25 36:2,2113:20 15:1,7,22continued40:19 54:20 define 33:11 36:23 48:1715:25 16:1,13continues 30:9 courts 12:13 22:6 defined9:15 difficult 17:10
date 38:3,25continuing 33:23 24:2 31:20 deliberate 8:3 difficulty 8:14day 16:22 28:7,733:24 35:18 45:14 51:10 11:4 digression3:25
30:10 33:2540:5,7 Court's 3:25 8:5 deliberative dime 52:1936:14,15,17,22controversy 25:9 27:25 45:17 direct 6:5 52:637:11 39:4,1836:16 30:23 demanding 6:20 directed53:2440:17correct 5:5,10 CRAIG 1:6 denial 5:19 27:15 directing 44:4
de 30:136:6,12 9:22 create 8:24 28:3 directly 18:14
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decided27:1924:3 47:14 creates 46:4 28:16 30:9 distinction 54:1337:20 53:954:22 creature 51:22 denying 6:8 district 15:18
deciding 28:8,9
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Alderson Reporting Company
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8/8/2019 U.S. Supreme Court Transcript for LA County v. Humphries
58/65
Official - Subject to Final Review
16:16 28:7 encompass 24:8,23 25:4,22 fairly 3:23 14:7 focus 27:25 28:540:17 21:19 38:15 26:1,4,7 51:16 fall 10:5 focused23:25
divide 14:6 encompassed exactly 24:13 far4:17,20 51:4 30:24 31:22dog 47:24 38:17 30:22 31:4 37:1 51:22 follow26:14doing 9:2,18 ends 28:7 53:18 example 6:19 federal 5:19 6:16 38:23 50:22
11:16 14:25 enforce 52:18 7:25 20:1 24:7 6:23 18:11 54: