Professional Documents
Culture Documents
Peter T DePasquale*
* Candidate for Juris Doctor, New England School of Law (2008); B.A., College of
Charleston (2002).
NEW ENGLAND LAW REVIEW [Vol. 42:865
INTRODUCTION
1. See, e.g., JOHN LOCKE, SOME THOUGHTS CONCERNING EDUCATION 54, at 115 (John
W. Yolton & Jean S. Yolton eds., Oxford Univ. Press 1989) ("Good and Evil, Reward and
Punishment, are the only motives to a rational creature."); H.L. MENCKEN, A MENCKEN
CHRESTOMATHY 12 (1949) ("The value the world sets upon motives is often grossly unjust
and inaccurate."); 1 Chronicles 28:9 (New Int'l Version) ("[F]or the Lord searches every
heart and understands every motive behind the thoughts."); BHAGAVAD-GITA 2:47 (Antonio
de Nicolas trans., Nicholas-Hays, Inc. 1990) ("Let not the fruits of action ...be what impels
you.").
2. See, e.g., Scarbrough v. Morgan County Bd. of Educ., 470 F.3d 250, 261-63 (6th
Cir. 2006) (examining the circuit split in determining if a municipal board acts with
improper motive); Church v. City of Huntsville, 30 F.3d 1332, 1342-47 (11th Cir. 1994)
(finding that the City did not advance a formal policy to expel the homeless). But see, e.g.,
LaVerdure v. County of Montgomery, 324 F.3d 123, 125-26 (3d Cir. 2003) (declining to
examine the motive of one municipal board member because his vote was not included in
the majority of the board votes).
3. 42 U.S.C. 1983 (2000). Section 1983 provides a federal remedy for the
"deprivation of any rights, privileges, or immunities secured by the Constitution and laws."
Id.
4. See Scarbrough, 470 F.3d at 261.
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possible answers to this question: (1) all five members who voted for
Smith's termination could be required to be improperly motivated to hold
the Board liable; (2) it may be sufficient only to prove that the one member
whose vote "broke the tie" was motivated and that "but for" his or her vote
Smith would still be employed; or (3) the facts of the case could be
carefully examined to determine if it was more likely than not that the
Board was improperly motivated.
In considering the previous hypothetical, it should not be surprising
that a significant portion of the most important policy decisions affecting
our communities are enacted and promulgated by local governments. 5
Although their area of jurisdictional authority is far less than their state or
federal counterparts, municipal governmental entities are6 frequently best
situated to address the unique needs of a local community.
American municipal law traces its origins to an intricate body of
seventeenth century law that was applied to the local self-government of
English communities.7 For centuries, scholars have observed that this area
of law is always changing and growing in scope and sophistication, often
making the study of the subject difficult.8 This growth continues today, and
it has been reported that local governments within the United States consist
of "more than 83,000 political subdivisions of the states-3,000 counties,
19,000 municipal corporations, 17,000 townships, 15,000 school districts,
and 30,000 special districts." 9
Municipal boards or councils consisting of various members "exercise
combined legislative and executive powers and sometimes perform judicial
. . functions" and ultimately make decisions by casting votes. 10 On
occasion, the official policies endorsed by this type of board or council may
violate federally protected rights of a citizen." Under 1983, plaintiffs are
able to initiate civil actions against a municipal board as an entity rather 12
than filing claims against the individual members who sit on the board.
Such actions are proper when the members of the board have final
13. Scarbrough, 470 F.3d at 262 (citing City of St. Louis v. Prapromik, 485 U.S. 112,
127-28 (1988)).
14. Id.at 261 (citing Hull v. Cuyahoga Valley Bd. of Educ., 926 F.2d 505, 515-16 (6th
Cir. 1991)).
15. Bd. of County Comm'rs v. Umbehr, 518 U.S. 668, 675 (1996).
16. Compare Matthews v.'Columbia County, 294 F.3d 1294, 1297-98 (11 th Cir. 2002)
(analyzing the motives of a majority of a multi-member board to determine 1983 liability),
with Scott-Harris v. City of Fall River, 134 F.3d 427, 436-40 (1st Cir. 1997) (utilizing the
"significant bloc" test to determine 1983 liability of a multi-member municipal board),
rev'd on other grounds, 523 U.S. 44 (1998), and Scarbrough,470 F.3d at 261-63 (utilizing
a "but for" causal analysis to determine 1983 liability of a multi-member municipal
board).
17. Monell v. Dep't of Soc. Serv., 436 U.S. 658, 690 (1978).
18. See Scarbrough,470 F.3d at 262.
19. David Jacks Achtenberg, Taking History Seriously: Municipal Liability Under 42
U.S.C. 1983 and the Debate over Respondeat Superior, 73 FORDHAM L. REV. 2183, 2187
(2005) (quoting Moor v. County of Alameda, 411 U.S. 693, 695 (1973)).
20. Edwards v. Aguillard, 482 U.S. 578, 637-39 (1987) (Scalia, J., dissenting) ("[There
are] many hazards involved in assessing the subjective intent of governmental
decisionmakers .... ").
21. See infra Part I.
2008] MUNICIPAL LIABILITY UNDER 1983 869
42. The proposed and ultimately rejected Sherman Amendment would have made "'the
inhabitants of the county, city, or parish' in which certain acts of violence occurred liable 'to
pay full compensation' to the person damaged or his widow or legal representative."
Monroe, 365 U.S. at 188 (quoting CONG. GLOBE, 42d Cong. I stSess, 663 (1871)).
43. Id. at 190 (citing CONG. GLOBE, 42d Cong., 1st Sess. 804 (1871) (statement of
Representative Poland)).
44. Id. at 170.
45. 436 U.S. 658 (1978).
46. Id.at 690.
47. Id.at 660-6 1.
48. Id.
49. Id.at 691.
50. PETER W. Low & JOHN CALVIN JEFFRIES, JR., CIVIL RIGHTS ACTIONS: SECTION 1983
AND RELATED STATUTES 80 (1988) ("[T]here is something a bit unsettling about the
relentless historicity of 1983 opinions .... In Monroe and Monell... despite a seemingly
thorough search, neither side was able to ...clearly demonstrate[] legislative intent one way
NEW ENGLAND LAW REVIEW [Vol. 42:865
67. See, e.g., Scarbrough v. Morgan County Bd. of Educ., 470 F.3d 250, 262 (6th Cir.
2006) ("Circuits are split on how to determine if a board, rather than its members, acts with
improper motive.").
68. Compare Matthews v. Columbia County, 294 F.3d 1294, 1297-98 (11th Cir. 2002)
(analyzing the motives of a majority of a multi-member board to determine 1983 liability),
with Scott-Harris, 134 F.3d at 436-40 (utilizing the "significant bloc" test to determine
1983 liability of a multi-member municipal board), and Scarbrough, 470 F.3d at 261-63
(utilizing a "but for" causal analysis to determine 1983 liability of a multi-member
municipal board).
69. Scarbrough,470 F.3d at 261. An official action is an action that "'implements ... a
policy statement, ordinance, regulation, or decision officially adopted and promulgated by
that body's officers."' Id. (quoting Shamaeizadeh v. Cunigan, 338 F.3d 535, 556 (6th Cir.
2003)).
70. See, e.g., Matthews v. Columbia County, 294 F.3d 1294, 1297 (1 1th Cir. 2002)
(requiring that more than just one member of a three-member majority be improperly
motivated such that the improper motivation is imputed to the entire board).
71. See id.; see also Dixon v. Burke County, 303 F.3d 1271, 1276 (11th Cir. 2002);
Church v. City of Huntsville, 30 F.3d 1332, 1342-43 (11th Cir. 1994).
72. Matthews, 294 F.3d at 1295.
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vote.73 In her suit against the county, the plaintiff was able to successfully
prove that one member of the Board acted with an unconstitutional
motive.74 Refusing to find sufficient improper motives among the board
members in order for the plaintiff to maintain a 1983 action against the
Board, the Eleventh Circuit stated, "[a]n unconstitutional motive on the
part of one member of a three-member majority is insufficient to impute an
unconstitutional motive to the Commission as a whole.""
Another example of the Eleventh Circuit's utilization of the "majority
test" was illustrated in a case where an unsuccessful applicant for a position
on the County Board of Education brought a 1983 action in which she
alleged gender discrimination as the basis for her rejection.76 In this case,
the Georgia Secretary of State requested that a county grand jury
recommend an applicant to fill a vacancy on the Board who would be
subsequently approved by a superior court judge.77 The grand jury,
consisting of nineteen people, considered eleven applications but only
nominated white male applicants to be voted on.78 Eventually, the grand79
jury voted twelve-to-seven in favor of one of the white male applicants.
Ruling on summary judgment, the district court considered the grand jury a
"policymaker" for the county and found no liability. 80 In affirming the
judgment, the Eleventh Circuit agreed that although there was evidence
supporting the allegation that one member of the Board was improperly
motivated by gender, 81
"no municipal liability can attach for one tainted vote
out of twelve cast."
Commenting on the Eleventh Circuit's decisions, the First Circuit has
described the approach as requiring the plaintiff to "adduce evidence
sufficient to show that a majority of the members of the legislative body
acted from a constitutionally
82
proscribed motive before . . . municipal
liability can attach.
The Third Circuit has also adopted the majority test. 83 In a case where
a Disease Intervention Specialist working for a county health department
was fired following her failure to follow up on multiple reports from
73. Id.
74. Id.at 1296.
75. Id.at 1297.
76. Dixon, 303 F.3d at 1273, 1276.
77. Id.at 1273.
78. Id.
79. Id. at 1274.
80. Id.at 1276.
81. Id.
82. Scott-Harris v. City of Fall River, 134 F.3d 427, 437 (1 st Cir. 1997), rev'd on other
grounds, 523 U.S. 44 (1998).
83. See Laverdure v. County of Montgomery, 324 F.3d 123, 125 (3d Cir. 2003).
NEW ENGLAND LAWREVIEW [Vol. 42:865
89. Id. at 209-10. (quoting Monell v. Dep't of Soc. Serv., 436 U.S. 658, 665 (1978)).
90. Id. at 214. The "final authority" rule is Monell's requirement that only individuals
with "final authority and responsibility to establish municipal policy for the action involved"
can subject the municipality to liability under 1983. Id. at 210.
91. See Scott-Harris v. City of Fall River, 134 F.3d 427, 438 (1st Cir. 1997), rev'd on
other grounds, 523 U.S. 44 (1998).
92. Id.
93. Melick & Fox, supra note 88, at 214.
94. Esperanza Peace and Justice Ctr. v. City of San Antonio, 316 F. Supp. 2d 433, 453
(W.D. Tex. 2001).
95. See, e.g., Scarbrough v. Morgan County Bd. of Educ., 470 F.3d 250, 261-63 (6th
Cir. 2006) (utilizing a "but for" causal analysis to determine 1983 liability of a multi-
member municipal board); Scott-Harris, 134 F.3d at 436-40 (utilizing the "significant bloc"
test to determine 1983 liability of a multi-member municipal board).
NEW ENGLAND LAW REVIEW [Vol. 42:865
96. See United States v. City of Birmingham, 538 F. Supp. 819 (E.D. Mich. 1982).
97. Id.at 821.
98. Id. at 822, 829.
99. Id. at 829.
100. Id.
101. See id
102. City of Birmingham, 538 F. Supp. at 829.
103. See Scott-Harris v. City of Fall River, 134 F.3d 427, 436-39 (1st Cir. 1997), rev'don
othergrounds, 523 U.S. 44 (1998).
104. Id. at 430.
105. Id.
2008] MUNICIPAL LIABILITY UNDER 1983
During the course of her career, the plaintiff had multiple disputes with
other city leaders including one individual who repeatedly made racial
slurs.10 6 Subsequently, the Mayor insisted that her position be eliminated in
an effort to reduce spending through budget cuts. 10 7 Pursuant to the city
charter, the abolition of the position required the majority vote of the city
council.' 0 8 In a six-to-two vote the Council approved the elimination of the
position. 0 9 The court surveyed the various circuits and decided that the
"majority of voting members" test should, in "sufficiently compelling"
cases, be relaxed.1 0 In particular, the court noted that "the law sometimes
constructs procedural devices to ease a victim's burden of proof.""' The
First Circuit was persuaded that for victims of discrimination, especially in
cases of race and gender, it is "overly mechanistic to hold [the plaintiff] to
strict proof of the subjective intentions of a numerical majority of council
members."'112 Therefore, the court constructed a two-prong test that is less
strict and requires a plaintiff to present evidence sufficient to prove both:
"bad motive on the part of at least a significant bloc of legislators, and
circumstances suggesting the probable complicity of others." '" 3 Under this
test, courts identify whether the plaintiff presented sufficient direct or
circumstantial evidence that made it more probable than not that
"discrimination was the real reason underlying the enactment of the
ordinance or the adoption of the policy."'' 14
The United States District Court, Western District of Texas has
followed this line of reasoning advanced by the First Circuit.' 1 5 In a case
where a non-profit arts organization brought a 1983 claim against the city
of San Antonio when the city council discontinued the organization's
funding, the court1 6 discovered what it considered ample reason to relax the
"majority test."'' Believing that the burden of proof required by the
"majority test" would be too onerous, the Texas District Court adopted the
Scott-Harrisapproach from the First Circuit since, in the court's reasoning,
it "strikes the proper balance between difficulty of proving a legislative
body's motivation and the fact that a municipal ordinance can only become
another part of the nation will not be liable." 0 The "but for" test articulated
by the Sixth Circuit should be adopted by all the Circuits to resolve the
question of how to determine the "motive" of a multi-member municipal
board.
A. The "But For" Test Recognizes the Fact that Discerning the
Motives of a Multi-member Municipal Board Is Far More
Difficult than Uncovering Legislative Intent.
Invidious motives are not routinely openly discussed; rather they are
frequently hidden within the private biases and prejudices of board
members.' 51 Speaking at the Touro Law Review's annual symposium,
former Second Circuit Judge George C. Pratt briefly commented on the 52
difficulty of identifying the "motive" of a municipal board when it acts.1
In particular, Pratt commented on a case where the Second Circuit wrestled
with the question of attributing improper motives to individual board
members, ultimately concluding that the "majority test" should be
adopted. 53 In questioning that approach, Pratt remembered a case that
came before him when he was serving as a district judge.154 Pratt recalled:
I once wanted to try a case that was remanded by the circuit
court to determine the motive of a school board in some action
that it took. I was convinced it was an impossible task, and my
intent was to demonstrate for all time that you cannot work on
the basis of a board's motivation because there are so many
things that influence its various members. Unfortunately,
155
they
settled the case and I never got that opportunity.
Pratt's remarks illustrate that even some judges believe that proving
improper motives of a board is an unfeasible endeavor. The three tests
examined above each address this difficulty in their own way; however, the
"but for" test is the only approach that adequately manages the difficulty
56
and necessity of determining the motive of a multi-member board.1
The difficulty in ascertaining the motives of multi-member boards is
analogous to the complexity of statutory interpretation through legislative
166. See Scarbrough v. Morgan County Bd. of Educ., 470 F.3d 250, 261 (6th Cir. 2006).
167. See Scott-Harris v. Fall River, 134 F.3d 427, 438 (1st Cir. 1997), rev'd on other
grounds, 523 U.S. 44 (1998).
168. See Scarbrough,470 F.3d at 262.
169. See id
170. See supra Part II.A.
171. See supra Part II.A.
172. See supra Part 1.B.
NEW ENGLAND LAW REVIEW [Vol. 42:865
173. See Scott-Harris v. City of Fall River, 134 F.3d 427, 437-38 (1st Cir. 1997), rev'don
other grounds, 523 U.S. 44 (1998); Esperanza Peace & Justice Ctr. v. City of San Antonio,
316 F. Supp. 2d 433, 461 (W.D. Tex. 2001); United States v. City of Birmingham, 538 F.
Supp. 819, 828-29 (E.D. Mich. 1982).
174. Scarbrough, 470 F.3d at 262.
175. See id.
176. See supra Part II.C.
177. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 118 (3d ed. 1986) (defining
"arithmetic progression" as "a sequence of numbers (as 3, 5, 7, 9 etc.) in which the
difference between any number of the sequence and the number immediately preceding it is
always the same").
178. Monell v. Dep't of Soc. Serv., 436 U.S. 658, 700-01 (1978).
2008] MUNICIPAL LIABILITY UNDER 1983
debate surrounding what would become 1983, it is evident that the statute
is intended to be construed liberally in order to adequately provide a
remedy in response to complaints of official neglect and
"maladministration. 1 79 The test chosen by courts to determine the motive
of a multi-member municipal board must further this purpose.
Recent research conducted on the subject of school board
membership provides a telling illustration leading to the conclusion that 80
greater accountability is needed among multi-member municipal boards.
It has been suggested that school board membership, in particular, does not
impart substantial awards upon its members.' 81 Frequently, school board
members are not credited for positive results but are blamed for situations
that go wrong.182 Although motivations for becoming a school board
member vary greatly, research does indicate that the tenure of members
who often join out of altruistic motives are significantly less than members
who are motivated out of gaining personal prestige and community
power. Research further indicates that school board members who serve
out of a sense of civic duty experience better relationships with school
officials, fellow board members, and feel that they are a stakeholder in the
community. 184 Alternatively, members who serve based on private agendas
of power or vengeance experience increased conflict. 85 Considering this
research-that many municipal board members serve terms for
objectionable reasons-it is logical to conclude that municipal boards
lacking a strong accountability mechanism will be at a substantial risk that
their members will cast votes out of constitutionally impermissible
motives. 86
The increasing evidentiary burden that the "but for" test creates
produces an effective mechanism for accountability and has unique
advantages. First, in situations where the multi-member board is confronted
with a contentious issue and is deadlocked, the "but for" test places a
significant amount of internal pressure on members who will cast deciding
votes. 187 This added pressure created by the "but for" test may serve to
179. Id.at 685 n.45 (quoting Rep. Garfield) (internal citation omitted).
180. See Meredith Mountford, Motives and Power of School Board Members:
Implications for School Board-Superintendent Relationships, 40 EDUC. ADMIN. Q. 704
(2004).
181. See id. at 705-11.
182. Id. at 706-07.
183. Id.at 706.
184. Id.at 706-08.
185. See id at 707 (discussing the different ways that power is exercised depending on
the motivations for acquisition of it).
186. See supra Part III.A.
187. See Scarbrough v. Morgan County Bd. of Educ., 470 F.3d 250, 263 (6th Cir. 2006)
NEW ENGLAND LAW REVIEW [Vol. 42:865
D. The "But For" Test Comports with the Tort Concept of Causation
Exemplified in Mount Healthy.
The previously discussed cases in Part II illustrate the inherent
difficulty in determining motives for the purposes of 1983. I89 Questions
remain as to whether the vocabulary and conceptual structure of tort law
adequately translates when applied to municipal liability. 190 In particular,
when the tortfeasor is an individual, it is natural and comfortable to
describe the wrongful act as a "consequence[] of individual behavior" that
is inconsistent with community norms.' 9 1 However, when the tortfeasor is
an entity rather than a specific person, tort law provides an awkward
framework to analyze potential liability. 192 Moreover, "tort language leads
[courts] to look for individual choices and motives, for an actor or a 'mind'
that can be evaluated."' 93 Scholars have questioned whether the law of torts
has sufficient "language for detecting and assessing injuries caused by
[governmental] organizations" and how courts can effectively manage the
responsibility94 of institutions with an analysis traditionally meant for
individuals.'
While it is possible that the unconstitutional action of a municipal
(stating that the "but for" test examines the motives of board members who cast deciding
votes).
188. See GILLETrE, supra note 5, at 747.
189. See supra Part 11.
190. See Christina B. Whitman, Government Responsibility for Constitutional Torts, 85
MICH. L. REv. 225, 226 (1986).
191. Id.
192. See id.
193. Id.
194. Id.at 229-30.
2008] MUNICIPAL LIABILITY UNDER 1983 889
entity is apparent in official policy, the cases examined above illustrate that
impermissible motives may not be readily apparent. 195 When this is the
case, a litigant must prove that the "[entity] acted out of a constitutionally
impermissible motive."'1 96 The difficulty in ascertaining the motives of
individuals for the purpose of imputing those motives to a collective body
has become one of the "practical consequences" of the Monell decision
97
that
Justice Rehnquist may have anticipated in his insightful dissent.1
The Supreme Court in Mount Healthy defined the causation
requirement for constitutional torts, including 1983.1 98 Although the
decision provided an incomplete roadmap to guide lower courts in making
a causation analysis, the Court did declare that a central question in the
causation inquiry is whether a municipal board "would have reached the
same decision . . . in the absence of the protected conduct." 199 The Sixth
Circuit's "but for" analysis in Scarbrough posits the question "whether a
board would have acted the same way, absent improper motive."200 It is
apparent that these two questions are nearly identical in that they focus the
motive analysis on causation. 20 1 The Sixth Circuit's "but for" test brings the
municipal liability analysis back to a tort-centered inquiry that was central
to the Mount Healthy decision.
CONCLUSION
The flaws within each of the three tests discussed in this Note reveal
the underlying difficulty in determining motives in general.20 2
Commentators continue to question whether the motive analysis central to
governmental liability is even practical.20 3 It is arguable that a test too
preoccupied with discerning the motive of municipal board members may
risk ignoring the real consequences of that board's actions.
The debate concerning how to determine the amount of improperly
motivated board members necessary to subject a municipality to 1983
liability must be resolved. A resolution needs to be made in order to resolve