Hafer v. Melo, 502 U.S. 21 (1991)

Commentary by Jon Roland

The twisted opinion in this rightly-decided case illustrates the perverse logic that courts must use to maintain consistency with wrongly-decided, poorly-argued precedents, and with political agendas that seek to violate the protections of the Constitution. The court in this case attempts to make an untenable distinction between suing a state official, acting in his official capacity for damages payable by the state,[1] and a state official, acting in his individual capacity "under color of law" for damages payable only by himself,[2] on the grounds that in his official capacity he is not a "person" under the intent of the statute establishing 42 U.S.C. 1983, when sued for damages, yet is a "person" when suing for injunctive relief.[3]

The twist arises from the question of how Congress through 42 U.S.C. 1983, sought "to give a remedy to parties deprived of constitutional rights, privileges and immunities by an official's abuse of his position."[4] by limiting monetary relief to the personal assets of the official but extending injunctive relief to the office, and therefore on how the "personhood" of an entity can depend on the kind of relief sought. This flies in the face of longstanding holdings that officials are "persons" when they appear as plaintiffs in suits against other officials or individual nonofficials, and the resulting asymmetry is inconsistent with "equal protection of the laws".[5]

The distinction is plausible if the tortious action of the official was done without the knowledge or consent of the State, in which case its liability might reasonably be thus shielded. The problem arises when the State had knowledge, and consented or acquiesced in the action, or even adopted statutes or policies, unconstitutional under either the U.S. Constitution or its own state constitution, which the official was enforcing. The Supreme Court invokes the Eleventh Amendment to justify denying its jurisdiction over a case of an citizen suing his own state for damages,[6] when by the clear language and legislative intent of the Eleventh, only actions by persons not citizens of the state were barred from the jurisdiction of Union courts. Jurisdiction over actions by citizens against their own states was omitted from the original Constitution,[7] but was clearly intended to be authorized by the 14th Amendment.[8] The Court in this case argues that while Congress might have constitutional authority to thus extend the jurisdiction of federal courts, it did not exercise such authority in the enactment of what is represented by 42 U.S.C. 1983, and lacking such enactment, the jurisdictional authority of the 14th Amendment was not self-executing as to the Supreme Court, a position that has become established, but was denied by first Supreme Court Chief Justice John Jay, one of the authors of the Federalist. The Supreme Court has either original or appellate jurisdiction in "all cases, in Law and Equity, arising under this Constitution, and Laws of the United States, ...."[9] The language does not restrict that jurisdiction to questions covered by statutes, and when properly ratified, an amendment "shall be valid to all Intents and Purposes, as Part of this Constitution, ..."[10]

It is a valid proposition that there is no constitutional authority for the Union courts to require that a state accept a petition against it for damages in its own courts, but in that event it was the clear intent of the 14th Amendment that the Union courts should be able to accept original jurisdiction, without an enabling federal statute, and they have done so in other cases where there was an issue of a right recognized by the U.S. Constitution and infringed by a state, whether by the act of an official, in either his official or private capacity, or by statute.[11]

The invalidity of the doctrine of "sovereign immunity" has been effectively argued by Wolfgram.[12]


1. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71; see also United States v. Bass, 404 U.S. 336, 349 (1971).

2. Scheuer v. Rhodes, 416 U.S. 232, 243.

3. Kentucky v. Graham, 473 U.S. 159 (1985); see also Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 690, n. 55 (1978).

4. Monroe v. Pape, 365 U.S. 167, 172 (1961).

5. U.S. Const., 14th Amend., Sec. 1.

6. Edelman v. Jordan, 415 U.S. 651, 663 (1974).

7. U.S. Const., Art. III Sec.2 Cl. 1.

8. Stephen P. Halbrook, Freedmen, the Fourteenth Amendment, and the Right to Bear Arms: 1866-1876, Westport, CT: Praeger, 1998.

9. U.S. Const., Art. III Sec.2 Cl. 1.

10. U.S. Const., Art. V.

11. Cite pending.

12. John Wolfgram, "How the Judiciary Stole the Right of Petition", 31 U. West L.A. L. Rev. [page] (Summer 2000).


This article is taken from http://www.constitution.org/ussc/502-021jr.htm

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