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Oral Argument Recap: Haywood v. Drown

What follows is Stanford student David Owens’ write-up of oral argument in Haywood v. Drown (07-10374). You can read more about the case on SCOTUSwiki.

Though briefed primarily as a case about whether Section 24 of New York Correction Law violates the Supremacy Clause, the oral argument revolved more heavily around an issue the Court has recently been grappling with: determining what the characteristics of “jurisdiction,” are. (Bowles v. Russell from 2007 is a good example.)  Indicative of this struggle, Justice Alito’s at one point asked James Murtagh, counsel for Haywood, whether there is some sort of “Platonic ideal of jurisdiction versus non-jurisdiction.”  Beyond the meta-jurisdictional debate, the Court, and Justice Kennedy in particular, homed in on the effect of New York’s law.

Murtagh began by emphasizing the limitations Section 24 imposes on 1983 claims-no punitive damages or attorney’s fees, no trial by jury, and a shortened notice of claim period-but was abruptly, and oddly, interrupted by Justice Kennedy, who posited that the New York scheme might actually benefit prisoners because allowing claims against the state ensures a solvent (“we hope,” Kennedy said to laughter) defendant.

From here, the Chief Justice pressed Murtagh on the rationality of the state indemnification scheme and began the Court down its discussion of jurisdiction.  The Chief likened Section 24 to a jurisdictional rule because, like the federal Court of Claims, it is a “rational way” of dealing with claims against the state treasury. (Because § 1983 actions proceed against officials, not the State, the Court’s willingness to acknowledge the practical reality, in which the state indemnifies most officials, may prove to be telling.)  Further, several Justices repeatedly emphasized that these actions are still available, and indeed most of them, in fact arise, in federal court.  Murtagh, with some help from Justice Ginsburg, countered that because the state courts hear analogous tortious claims against public officials, choosing to limit them by their substance-to prison officials-was impermissible.

After a tense colloquy with Justice Scalia, in which Murtagh conceded that the rule would be jurisdictional if the State banned all tort actions from courts of general jurisdiction, Murtagh attempted to shift the discussion, again with help from Justice Ginsburg, to the practical effect of the rule, but was again sucked into answering more questions about jurisdiction.   A turning point, however, came near the end of the argument, when Justice Breyer – sharpening the inquiry actually before the Court – asked whether this was a “neutral rule . . . related to the administration of courts” and how this standard affects the State’s decision to allow § 1983 claims against public officials generally, while preventing those against DOC employees.

Seemingly taking this cue, New York Solicitor General Barbra Underwood’s oral argument focused on whether there were neutral justifications for the rule and the remedies provided under Section 24.  Jurisdiction’s tangled web, however, reemerged quite quickly; this time instantiated in the difficulty between a “jurisdictional rule” and a statute that creates an “absolute immunity” for DOC officials.

After deflecting Justice Souter’s attack on her criterion for determining whether a state rule discriminates against a federal cause of action, Underwood was pressed on the issue, brought up in Howlett, that despite being couched in terms of “jurisdiction,” Section 24 might actually amount to a grant of absolute immunity for DOC officers. This is where the practical effect of New York’s scheme came to the forefront.  Justice Ginsburg posited that, in the minds of individual DOC officers, the regime tells them they are absolutely immune from damages actions, and only subject to equitable or declaratory relief.  (Notably, Justice Kennedy would later repeat a version of this argument-that the state has taken away damages actions-quite forcefully.).  Rejecting Underwood’s claim that this was a “forced removal” statute, Ginsburg instead pointed to the assumption of federal supremacy and that state courts presumably have concurrent jurisdiction over both federal and state law claims.

In finally getting to the heart of the issues most heavily briefed, Justice Breyer demanded “neutral reasons” for Section 24’s exclusion of DOC officers from § 1983 claims.  In responding, Underwood relied upon over-burdened courts in two senses:  (1) the high number of “vexatious claims” by prisoners; and (2) the clogging that would result from the high concentrations of these numerous claims due to the locations of prisons in relatively rural areas.  Through the discussion, Justice Breyer seemed to find one good reason, one bad reason, and another which might fall somewhere in between. . . .

Coming full circle to jurisdiction and effects, however, two colloquys were notable.  First, after hypothesizing a rule banning damages actions on Wednesdays, Justice Souter pointed to the fact that, under Section 24, DOC officials can still be held accountable for conduct “outside the scope of employment,” which are presumably the most egregious violations (with the highest potential damages), but could not be held liable for “less awful” violations.  This, to Justice Souter, impugned the Rule, making it “not plausibly jurisdictional,” because instead of being broadly applicable to all similar claims (which jurisdictional rules are), Section 24 erred by distinguishing too narrowly between similar types bringing the rule’s effect beyond the scope of jurisdiction’s “normal usage.”  As Justice Souter put it, the “teeth on the comb are getting rather fine.” Second, related to effect, Justice Kennedy noted that the attendant inquiry of determining whether an employee is acting within the “scope of employment” is itself a burden on the § 1983 claim, and that removing the potential for punitive damages is “another reason” the state had discriminated against the prisoner.

Though short, Murtagh’s rebuttal provided one interesting insight that might indicate which way Justice Breyer is leaning.  After mentioning the state’s asserted “neutral reasons,” Justice Breyer explicitly rejected Murtagh’s suggestion to look at the motives or, in other words, his “New York thinks this is ‘bad policy’ argument-“forget all of the characterizations”-and, instead, seemed willing to rely on Underwood’s “neutral” justification provided in the course of litigation (the clogged courts rationale) for the permissibility of Section 24.  Coming back to his major theme Murtagh replied that the State cannot “shuttle Federal claims off to the Federal courts and close its doors for a hearing on similar State claims.”