RICKY LYNN PITTS et al., Plaintiffs and Appellants, v. COUNTY OF KERN et al., Defendants and Respondents. COLLEEN DILL FORSYTHE et al., Plaintiffs and Appellants, v. COUNTY OF KERN et al., Defendants and Respondents.
No. S057270
Supreme Court of California
Jan. 29, 1998.
340, 341, 342, 343, 344, 345, 346, 347, 348, 349, 350, 351, 352, 353, 354, 355, 356, 357, 358, 359
Stanley M. Becker for Plaintiffs and Appellants.
B. C. Barmann, Sr., County Counsel, Mark L. Nations, Chief Deputy County Counsel, Lynda M. Taylor, Deputy County Counsel, Robinson, Palmer & Stanton, Robinson, Palmer & Logan and William D. Palmer for Defendants and Respondents.
John J. Sansone, County Counsel (San Diego), Diane Bardsley, Chief Deputy County Counsel, Morris G. Hill, Deputy County Counsel, Paul J. Pfingst, District Attorney (San Diego), Edward J. Mantyla, Brian E. Michaels and Thomas F. McArdle, Deputy District Attorneys, and Ruth Sorensen as Amici Curiae on behalf of Defendants and Respondents.
OPINION
BROWN, J.-A local government, such as a county, is a “person” within the meaning of
The Court of Appeal concluded there was a triable issue of fact as to the first issue, and that a county is not immune merely because its district attorney is immune. We conclude that the issue of whether a district attorney is a policymaker for the county is one of law, not fact, and that the district attorney represents the state, not the county, when preparing to prosecute and when prosecuting crimes, and when establishing policy and training employees in these areas. We therefore reverse the judgment of the Court of Appeal.
I. FACTS AND PROCEDURAL BACKGROUND
In 1985, Ricky Lynn Pitts, Marcella Pitts, Colleen Dill Forsythe, Grace Dill, Wayne Dill, Jr., Gina Miller, and Wayne Forsythe were convicted of numerous sex offenses committed against several children.1 Those individuals were either related to the children or acquaintances of the relatives. (People v. Pitts, supra, 223 Cal.App.3d 606, 634, 636.) In 1990, the convictions were reversed on appeal because of prosecutorial misconduct. (223 Cal.App.3d at pp. 690, 915.) In December 1990, the defendants in the
On March 31, 1992, Ricky Lynn Pitts and Marcella Pitts filed a third amended complaint against Kern County (County), Edward Jagels, individually and as District Attorney of Kern County (Jagels), Michael Vendrasco, a deputy district attorney and chief prosecutor in the Pitts criminal case (Vendrasco), Carol Darling, sex abuse program coordinator of the Kern County District Attorney‘s office (Darling), Andrew Gindes, a deputy district attorney and a prosecutor in the Pitts criminal case, Kern County Department of Human Services, Child Protective Services, Larry Kleier, individually and as Sheriff of Kern County, Deputy Sheriff Jesse Sneed of the Kern County Sheriff‘s Department, and Kern County Sheriff‘s Department Sergeants Bob Fields, Brad Darling, and Jack Rutledge, and other defendants, alleging in part civil rights violations based on alleged misconduct during the criminal prosecution. (People v. Pitts, supra, 223 Cal.App.3d at pp. 638, 640, 641.) The Pittses sought compensatory and punitive damages, and attorneys’ fees.
On December 3, 1992, Colleen Dill Forsythe, Grace Dill, and Gina Miller filed a fourth amended complaint which, as relevant here, made similar allegations against the same parties, and sought similar damages. The trial court consolidated the two cases. (Ricky Lynn Pitts, Marcella Pitts, Colleen Dill Forsythe, Grace Dill, and Gina Miller are hereafter referred to as plaintiffs.)
The County, Jagels, individually and as district attorney, Vendrasco, and Darling filed a motion for summary judgment on the ground that plaintiffs’ allegations were barred by absolute prosecutorial immunity, and that the County was immune for any acts for which these individual defendants were immune. Summary judgment was entered for Jagels (both as an individual and as district attorney), Vendrasco, and Darling.
The trial court entered summary judgment for the County on two grounds. First, it concluded the County was absolutely immune from liability for any act for which Jagels, Vendrasco, and Darling had immunity. Second, it concluded the County had no ability to hire, fire, or discipline Jagels, who was an elected public official, “or suggest how he should run his department.”
Following this ruling, the County successfully moved to sever and for separate trial on the claims against the County based on the conduct of the
The Court of Appeal affirmed the entry of summary judgment for Jagels, Vendrasco, and Darling. It reversed summary judgment as to the County. In reversing the trial court‘s first basis for entering summary judgment for the County, the Court of Appeal concluded a county is not automatically immune from liability for any act for which its employees or elected officials have absolute immunity.
In rejecting the second basis, the Court of Appeal stated that a California district attorney has attributes of both a state and local officer. “Lacking some persuasive authority, we cannot hold as a matter of law that Jagels was not a county policymaker for
We granted the County‘s petition for review.
A. Background on Section 1983
1. Which entities are “person[s]” (and hence potentially liable) under section 1983
Neither states nor state officials acting in their official capacities are “person[s]” within the meaning of
In Monell v. New York City Dept. of Social Services, supra, 436 U.S. 658, the high court overruled that portion of Monroe which held that local governments were not “person[s]” within the meaning of
However, “a municipality cannot be held liable solely because it employs a tortfeasor-or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.” (Monell v. New York City Dept. of Social Services, supra, 436 U.S. at p. 691 [98 S.Ct. at p. 2036], original italics.) Thus, “a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government‘s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” (436 U.S. at p. 694 [98 S.Ct. at pp. 2037-2038]; see Pembaur v. Cincinnati (1986) 475 U.S. 469, 481 [106 S.Ct. 1292, 1299, 89 L.Ed.2d 452] (plur. opn. of Brennan, J.) [“Municipal liability attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered. [Fn. omitted.]“].)
Moreover, “it is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights.” (Board of County Com‘rs of Bryan County, Okl. v. Brown (1997) 520 U.S. 397, - [117 S.Ct. 1382, 1388, 137 L.Ed.2d 626], original italics.) “[P]roof that a municipality‘s legislative body or authorized decisionmaker has intentionally deprived a plaintiff of a federally protected right necessarily establishes that the municipality acted culpably. Similarly, the conclusion that the action taken or directed by the municipality or its authorized decisionmaker itself violates federal law will also determine that the municipal action was the moving force behind the injury of which the plaintiff complains.” (Id. at p. - [117 S.Ct. at p. 1389].)
“Personal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law.” (Kentucky v. Graham (1985) 473 U.S. 159, 165 [105 S.Ct. 3099, 3105, 87 L.Ed.2d 114].) “Official-capacity suits, in contrast, ‘generally represent only another way of pleading an action against an entity of which an officer is an agent.‘” (Ibid.; Will v. Michigan Dept. of State Police, supra, 491 U.S. at p. 71 [109 S.Ct. at p. 2312] [While “state officials literally are persons,” “a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official‘s office. [Citation.] As such, it is no different from a suit against the State itself.“]; see Brandon v. Holt (1985) 469 U.S. 464, 471-472 [105 S.Ct. 873, 877-878, 83 L.Ed.2d 878].) “As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.” (Kentucky v. Graham, supra, 473 U.S. at p. 166 [105 S.Ct. at p. 3105].)
“When it comes to defenses to liability, an official in a personal-capacity action may, depending on his position, be able to assert personal immunity defenses .... See Imbler v. Pachtman, 424 U.S. 409 [96 S.Ct. 984, 47 L.Ed.2d 128] (1976) (absolute immunity); [citations]. In an official-capacity action, these defenses are unavailable. [Citations.] The only immunities that can be claimed in an official-capacity action are forms of sovereign immunity that the entity, qua entity, may possess, such as the Eleventh Amendment.” (Kentucky v. Graham, supra, 473 U.S. at pp. 166-167 [105 S.Ct. at pp. 3105-3106], fn. omitted.)
3. Prosecutorial immunity
The availability of immunity from liability under
Imbler accorded prosecutors absolute immunity under these circumstances out of “concern that fear of potential liability would undermine a prosecutor‘s performance of his duties by forcing him to consider his own potential
Prosecutors are only entitled to qualified immunity, however, for conduct not “intimately associated with the judicial phase of the criminal process,” including giving legal advice to police, or conducting investigations regarding an individual before there is probable cause to have that individual arrested. (Imbler v. Pachtman, supra, 424 U.S. at p. 430 [96 S.Ct. at pp. 994-995]; Burns v. Reed, supra, 500 U.S. at p. 496 [111 S.Ct. at pp. 1944-1945]; Buckley v. Fitzsimmons, supra, 509 U.S. at pp. 272-275 [113 S.Ct. at pp. 2615-2617].)
B. Plaintiffs’ Claims
At the outset, we delineate the precise claims we are addressing. The County petitioned for review on the issues of whether for purposes of local government damages liability under
Plaintiffs have, to a certain extent, conceded the first issue. They state, for example, that “a California district attorney may act for the state in conducting a prosecution, but he acts for the County otherwise,” and that “[i]t is only when the district attorney, or his assigned deputy, is actually prosecuting a specific criminal action, or is in the process of actually preparing to prosecute a specific criminal action, that he acts on behalf of the people of the State of California.” They essentially contend, however, that a district attorney represents the county when training staff or developing policies regarding criminal prosecutions. Not surprisingly, the County contends that when preparing to prosecute and when prosecuting criminal violations of state law, including training and developing policies for a prosecutorial staff, the district attorney does not act as a policymaker for the county.
We therefore first address whether a district attorney represents the county or the state when preparing to prosecute and when prosecuting criminal violations of state law, and then consider which entity the district attorney represents when establishing policy and training employees in these areas.
Naturally, the County does not challenge the trial court‘s and Court of Appeal‘s ruling that Jagels, Vendrasco, and Darling had absolute prosecutorial immunity. Accordingly, the efficacy of that ruling is not before us. Contrary to plaintiffs’ contention, the County‘s derivative immunity claim does not revive the question of prosecutorial immunity. Prosecutorial immunity is only available to a defendant sued in his or her personal, not official capacity (ante, p. 350), and Jagels is not a party here.3
District Attorney as Policymaker; Issue of Fact or Law
Contrary to the conclusion of the Court of Appeal, it is settled that whether an official is a policymaker for a county is dependent on an analysis of state law, not fact. (McMillian v. Monroe County, supra, 520 U.S. at p. - [117 S.Ct. at pp. 1736-1737] [inquiry of which entity an official represents when acting in a particular capacity “dependent on an analysis of state law“];
Rather, “[r]eviewing the relevant legal materials, including state and local positive law, as well as ’ “custom or usage” having the force of law,’ [citation], the trial judge must identify those officials or governmental bodies who speak with final policymaking authority for the local governmental actor concerning the action alleged to have caused the particular constitutional or statutory violation at issue.” (Jett v. Dallas Independent School Dist., supra, 491 U.S. at p. 737 [109 S.Ct. at p. 2724].) “Once those officials who have the power to make official policy on a particular issue have been identified, it is for the jury to determine whether their decisions have caused the deprivation of rights at issue by policies which affirmatively command that it occur, [citation], or by acquiescence in a longstanding practice or custom which constitutes the ‘standard operating procedure’ of the local governmental entity.” (Ibid., original italics.)
“This is not to say that state law can answer the question for us by, for example, simply labeling as a state official an official who clearly makes county policy. But our understanding of the actual function of a governmental official, in a particular area, will necessarily be dependent on the definition of the official‘s functions under relevant state law.” (McMillian v. Monroe County, supra, 520 U.S. at p. - [117 S.Ct. at p. 1737].) Moreover, we need not answer the question “in some categorical, ‘all or nothing’ manner.” (Ibid.) The high court‘s “cases on the liability of local governments under § 1983 instruct us to ask whether governmental officials are final policymakers for the local government in a particular area, or on a particular issue.” (Ibid.) “Thus, we are not seeking to make a characterization of [California district attorneys] that will hold true for every type of official action they engage in.” (Ibid.) We simply consider whether Jagels represents the state or the County when preparing to prosecute and when prosecuting criminal violations of state law, and when training and developing policies for employees engaged in these activities.
McMillian v. Monroe County
Recently, in McMillian v. Monroe County, supra, 520 U.S. 781, the United States Supreme Court provided an analytical framework for resolving the question of which entity a government official represents when performing a certain function. In particular, the court considered whether Alabama
In so doing, the high court considered a variety of factors. (McMillian v. Monroe County, supra, 520 U.S. at pp. - [117 S.Ct. at pp. 1737-1740].) First, it looked to the Alabama Constitution. (Id. at p. - [117 S.Ct. at p. 1737].) It concluded that “the constitutional provisions concerning sheriffs, the historical development of those provisions, and the interpretation given them by the Alabama Supreme Court strongly support Monroe County‘s contention that sheriffs represent the State, at least for some purposes.” (Id. at pp. - [117 S.Ct. at pp. 1737-1738].) In particular, since 1901, but not previously, the Alabama Constitution has provided that sheriffs are members of the state executive department. (Id. at p. - [117 S.Ct. at p. 1738].) Such members have to take an oath of office, and “are required to submit written reports to the governor on demand.” (Id. at p. -, fn. 4 [117 S.Ct. at p. 1738].) Moreover, sheriffs are subject to the “same impeachment procedures as state legal officers and lower state court judges ....” (Id. at p. - [117 S.Ct. at p. 1738].) Finally, “[c]ritically for [the high court], the Alabama Supreme Court has interpreted these provisions and their historical background as evidence of ‘the framers’ intent to ensure that sheriffs be considered executive officers of the state.’ [Citation.] Based primarily on this understanding of the State Constitution, the court has held unequivocally that sheriffs are state officers, and that tort claims brought against sheriffs based on their official[] acts therefore constitute suits against the State, not suits against the sheriff‘s county.” (Id. at pp. - [117 S.Ct. at pp. 1738-1739].)
Next, the high court examined the relevant provisions of the Alabama Code. (McMillian v. Monroe County, supra, 520 U.S. at p. - [117 S.Ct. at p. 1739].) It found these provisions “are less compelling, but still support the conclusion [that sheriffs represent the state] to some extent.” (Ibid.) First, judges, who are state officers, “may order the sheriff to take certain actions, even if the judge sits in a distant county.” (Ibid.) Second, “the sheriff must give to the county treasurer a sworn written statement detailing the funds he
“Third and most importantly, ... sheriffs are given complete authority to enforce the state criminal law in their counties. In contrast, the ‘powers and duties’ of the counties themselves ... do not include any provision in the area of law enforcement. [Citation.] Thus, the ‘governing body’ of the counties ... cannot instruct the sheriff how to ferret out crime, how to arrest a criminal, or how to secure evidence of a crime. And when the sheriff does secure such evidence, he has an obligation to share this information not with the county commission, but with the district attorney (a state official, see Hooks v. Hitt, 539 So.2d 157, 159 (Ala. 1988)).” (McMillian v. Monroe County, supra, 520 U.S. at p. - [117 S.Ct. at p. 1739].) “While the county commission thus has no direct control over how the sheriff fulfills his law enforcement duty, the governor and the attorney general do have this kind of control.” (Ibid.) These individuals “can direct the sheriff to investigate ‘any alleged violation of law in their counties,’ and submit a written report to the state official in charge of the investigation. (Ibid.) Finally, the high court noted that “the salaries of all sheriffs are set by the state legislature, not by the county commissions.” (Ibid.)
The high court found “four important provisions that cut in favor of the conclusion that sheriffs are county officials“-the sheriff‘s salary was paid by the county, the county provided the sheriff with certain equipment, supplies, lodging, and reimbursement for expenses, the sheriff‘s jurisdiction was limited to the county borders, and the sheriff was elected locally by the county voters-insufficient “to tip the balance in favor of” the plaintiff. (McMillian v. Monroe County, supra, 520 U.S. at p. - [117 S.Ct. at p. 1740].) The county‘s payment of the sheriff‘s salary did “not translate into control over him, since the county neither has the authority to change his salary nor the discretion to refuse payment completely.” (Ibid.) While the county commissions did have discretion to deny operational funds “beyond what is ‘reasonably necessary,’ ” (ibid.) “at most, this discretion would allow the commission to exert an attenuated and indirect influence over the sheriff‘s operations.” (Ibid.)
In response to the last two factors, the court stated, plaintiff‘s “contention that sheriffs are county officials because ‘state policymakers’ typically make policy for the entire State (without limits on their jurisdiction) and are typically elected on a statewide (not local) basis, surely has some force. But district attorneys and state judges are often considered ... state officials,
Significantly, the high court did not state that the factors it considered were exclusive, or that they must always be applicable in order for a court to conclude that a particular official represents the state and not the county. Rather, it considered whether “although there is some evidence in Alabama law that supports [plaintiff‘s] argument” that sheriffs represent their counties, “the weight of the evidence is strongly on the side of the conclusion” that the sheriffs represent the state. (McMillian v. Monroe County, supra, 520 U.S. at p. - [117 S.Ct. at p. 1740].) The essential thrust of McMillian is that a court must discern which entity a government official represents “in a particular area, or on a particular issue” by examining how the official‘s functions are defined by state law. (Id. at p. - [117 S.Ct. at p. 1737].) While this law may give varying responses, we look to “the weight of the evidence” to reach a conclusion. (Id. at p. - [117 S.Ct. at p. 1740].)
1. Preparing to Prosecute and Prosecuting Criminal Violations
We now examine California law to determine whether for purposes of local government damages liability under
First, as the high court did in McMillian, we consider which entity supervises the work of the district attorney. (McMillian v. Monroe County, supra, 520 U.S. at p. - [117 S.Ct. at p. 1739].) In California, each county district attorney is supervised by the Attorney General. Since 1966,
In contrast, the county board of supervisors is statutorily barred from obstructing the district attorney‘s investigative or prosecutorial function. While
Thus, as with the sheriffs in McMillian, California district attorneys “are given complete authority to enforce the state criminal law in their counties.
Moreover, a superior court judge may require a district attorney of an adjoining county to conduct certain proceedings. (
In addition, when prosecuting criminal violations of state law, a district attorney acts in the name of the people of the state. In criminal prosecutions, “[t]he style of all process shall be ‘The People of the State of California,’ and all prosecutions shall be conducted in their name and by their authority.” (
Indeed, over 100 years ago, we recognized, “The district attorney in the discharge of the duties of his office performs two quite distinct functions. He is at once the law officer of the county and the public prosecutor. While in the former capacity he represents the county and is largely subordinate to, and under the control of, the board of supervisors, he is not so in the latter. In the prosecution of criminal cases he acts by the authority and in the name of the people of the state.” (County of Modoc v. Spencer (1894) 103 Cal. 498, 501 [37 P. 483].) This principle has been often repeated since Modoc.
Thus, these provisions weigh in favor of concluding a district attorney is a state official when preparing to prosecute and when prosecuting criminal violations of state law. Indeed, it is difficult to imagine how a district attorney‘s enforcement of state law could be characterized as creating local policy. (See Pusey v. City of Youngstown (6th Cir. 1993) 11 F.3d 652, 657 [“Clearly, state criminal laws . . . represent the policy of the state.“].) Moreover, as in McMillian, the provisions that most significantly support the conclusion that the district attorney represents the state and not the county when preparing to prosecute and when prosecuting criminal violations of state law predate Monell by some time. (McMillian v. Monroe County, supra, 520 U.S. at p. ___ [117 S.Ct. at p. 1742].)7
As in McMillian, however, there are provisions that weigh in favor of the opposite result. In California, a district attorney is elected by the county voters (
In addition, in California, the county‘s board of supervisors, not the Legislature, “prescribe[s] the compensation” of its district attorney. (
2. Training and Supervising Staff
As noted, plaintiffs contend that even if Jagels is not a policymaker for the County when preparing to prosecute and when prosecuting criminal violations of state law, he does represent the County when he establishes policy or trains employees in these areas.
Just as we have concluded that in California a district attorney represents the state when preparing to prosecute and when prosecuting criminal violations of state law, we further conclude it logically follows that he or she also represents the state, and not the county, when training and developing policy in these areas. No meaningful analytical distinction can be made between these two functions. Indeed, a contrary rule would require impossibly precise distinctions. The district attorney would represent the state when he or she personally prepared to prosecute and prosecuted criminal violations of state law, but the county when training others to do so, or when developing related policies. Moreover, anytime the district attorney relied on a formal policy to handle a particular aspect of a case, that decision would be attributable to the county, even though the prosecution itself would be a state function. Such a result would be nonsensical, and would impose local government liability under the most arbitrary of circumstances.
Our conclusion as to which entity the district attorney represents might differ were plaintiffs challenging a district attorney‘s alleged action or inaction related to hiring or firing an employee, workplace safety conditions, procuring office equipment, or some other administrative function arguably unrelated to the prosecution of state criminal law violations. Those considerations are not presented here.
Plaintiffs assert no compelling basis on which to conclude a district attorney represents the county and not the state when training and developing policy regarding criminal prosecutions. Rather, they assert that “[c]onducting a prosecution does not necessarily contemplate training of personnel or establishing policy or practice,” and that the “statutorily designated prosecutorial functions of the district attorney under state law do not include any management, administrative or training function.” It is difficult to imagine, however, how criminal prosecutions could be conducted with any efficiency absent these functions. Moreover, we have already concluded that the broad provisions of the Constitution and the Government Code give the Attorney General oversight not only with respect to a district attorney‘s actions in a particular case, but also in the training and development of policy intended for use in every criminal case.
Plaintiffs also assert that no “state law prescribe[s] the policies of the district attorney‘s office, nor the manner of training his subordinates, or whether there should be any training at all. The functions are not intimately associated with the judicial process. They are County functions.” However, the question of whether a function is intimately associated with the judicial process is relevant only in the context of whether a prosecutor enjoys absolute or qualified immunity for that particular function. (See ante, pp.
Plaintiffs’ reliance on our definition of a “public officer” in Dibb v. County of San Diego, supra, 8 Cal.4th 1200, is also misplaced. Dibb involved a taxpayer‘s suit challenging San Diego County‘s formation of a citizen‘s law enforcement review board under the county charter. (Id. at pp. 1204-1205.) The plaintiff contended that members of the board were not county officers within the meaning of the state Constitution. (Id. at p. 1211.) We concluded they were. (Id. at p. 1213.) Here, however, the County has never contended the district attorney is not a public or county officer for some purposes.
Plaintiffs rely, with virtually no discussion, on three opinions from other jurisdictions which they assert have concluded a district attorney represents the local government and not the state when training or developing policy in the area of criminal prosecution. (Walker v. City of New York (2d Cir. 1992) 974 F.2d 293; Gobel v. Maricopa County (9th Cir. 1989) 867 F.2d 1201; Crane v. State of Tex. (5th Cir. 1985) 759 F.2d 412.) As we have already observed, given that the issue of who is a policymaker for a county is a question of state law, it is questionable how persuasive contrary conclusions from different jurisdictions should be. Moreover, all of these cases predate McMillian, and their analyses are in any event unconvincing.
In Walker v. City of New York, supra, 974 F.2d 293, the United States Court of Appeals for the Second Circuit held that when “a district attorney acts as the manager of the district attorney‘s office, the district attorney acts as a county policymaker.” (Id. at p. 301.) The court distinguished an earlier decision, Baez v. Hennessy (2d Cir. 1988) 853 F.2d 73, which concluded a district attorney represents the state, on the ground that Baez had “involved a challenge to the decision by an [assistant district attorney] to prosecute an individual and the district attorney‘s endorsement of that decision. Here, by
Likewise, in Ying Jing Gan v. City of New York (2d Cir. 1993) 996 F.2d 522, the United States Court of Appeals for the Second Circuit stated that if the plaintiff‘s complaint simply attacked the district attorney‘s decision not to prosecute a particular suspect (whose gang allegedly later killed the person who identified him), the district attorney represented the state. (Id. at pp. 525, 535-536.) If, however, the plaintiff alleged that “the District Attorney for New York County had promulgated a policy or custom regarding . . . face-to-face identifications and the alleged failure to protect” crime victims, the district attorney “may be deemed to be a municipal policymaker for New York City.” (Id. at p. 536.)
We have already explored the difficulties of adopting a distinction regarding which entity the district attorney represents that turns on whether the district attorney performs the act in only one case, or has a policy of performing the act in every case. For these reasons, we find the Second Circuit‘s analysis unpersuasive.
In Gobel v. Maricopa County, supra, 867 F.2d 1201, the United States Court of Appeals for the Ninth Circuit did not conclude, as plaintiffs implicitly contend, that an Arizona district attorney is a policymaker for the county. Rather, it stated that in St. Louis v. Praprotnik (1988) 485 U.S. 112 [108 S.Ct. 915, 99 L.Ed.2d 107], the high court was divided on whether the identification of policymakers is purely a question of state law or a question of fact. (Gobel v. Maricopa County, supra, 867 F.2d at p. 1207, fn. 12.) Accordingly, it left “to the district court to determine on remand how and whether the plaintiffs can prove that the county attorneys acted as policymakers for Maricopa County in the circumstances of this case.” (Ibid.) As discussed above (ante, pp. 352-353), the high court has since clarified that the issue of who is a county policymaker is one dependent on an analysis of state law.
Finally, in Crane v. State of Tex., supra, 759 F.2d 412, the United States Court of Appeals for the Fifth Circuit rejected the lower court‘s conclusion that the district attorney‘s “accused practices ‘were neither done for the county nor subject to its control.’ ” (Id. at p. 428.) It noted that in revising the challenged procedures, “there is no hint of any perceived necessity by the District Attorney to consult with or invite the participation of any state official, for example, a member of the State Attorney General‘s Office. To
In sum, we conclude a district attorney acts on behalf of the state when training personnel for and when developing policy regarding the preparation for prosecution and prosecution of criminal violations of state law. Accordingly, we need not reach the second issue in this case, i.e., whether the absolute immunity afforded the district attorney in this case under section 1983 derivatively immunizes the county in which the district attorney holds office.
CONCLUSION
The judgment of the Court of Appeal is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.
George, C. J., Baxter, J., Werdegar, J., and Chin, J., concurred.
MOSK, J.—I dissent. The majority are correct that McMillian v. Monroe County (1997) 520 U.S. 781 [117 S.Ct. 1734, 138 L.Ed.2d 1] (McMillian) is the case critical for deciding the present issue. But the application of the McMillian test leads me to the conclusion, contrary to the majority, that district attorneys in California are county rather than state officials for most purposes. Although it is true that a district attorney represents the state when prosecuting a criminal case, I agree with the Second Circuit of the United States Court of Appeals and with other courts that when the district attorney engages in training, supervision, and other managerial tasks, he or she is acting as a local policymaker, and the county which he or she represents may be held liable under
Plaintiffs were convicted in 1985 of multiple counts of sexual abuse of young children and were each sentenced to hundreds of years in prison. In
The starting points of any analysis of the county‘s liability, which is in essence an inquiry into whether the district attorney is considered a county or a state official, are the two guiding principles invoked by the McMillian court. First, the question we must resolve is not whether the district attorney acted for the county “in some categorical, ‘all or nothing’ manner. Our cases on the liability of local governments under § 1983 instruct us to ask whether governmental officials are final policymakers for the local government in a particular area, or on a particular issue.” (McMillian, supra, 520 U.S. at p. ___ [117 S.Ct. at p. 1737].) “Second, our inquiry is dependent on an analysis of state law. [Citations.] . . . [O]ur understanding of the actual function of a governmental official, in a particular area, will necessarily be dependent on the definition of the official‘s functions under relevant state law.” (Ibid.)
In determining that a sheriff was, under Alabama state law, a state rather than a county official for law enforcement purposes, the closely divided McMillian court engaged in a weighing of a number of factors, not relying on any single one. (McMillian, supra, 520 U.S. at p. ___ [117 S.Ct. at pp. 1738-1740].) The opinion did, however, indicate which factors it considered to be the most weighty, finding the provisions of the Alabama Constitution to be the more significant, while those of the Alabama Code “less compelling.” (Id. at p. ___ [117 S.Ct. at p. 1739].) What the court apparently considered most crucial was the state‘s singular constitutional structure and history. As the opinion discusses, a 1901 state constitutional amendment changed the status of sheriffs, transforming them from local officials into members of the “executive department” of the state government. The greater role that the Alabama Constitution accorded to the state in supervising sheriffs was occasioned by the latter‘s historical failure to prevent lynchings. Collusion with lynching was made an impeachable offense and authority to
California, by contrast, has no similar constitutional history or provisions. District attorneys were never made a part of an executive department. There was never a historical need to circumscribe the autonomy of the district attorneys’ office for rogue behavior. In fact, in contrast to the scheme in Alabama, district attorneys in California are designated constitutionally and by statute as county officers (
It is true, as the majority point out, that article V, section 13 of the California Constitution provides that “[t]he Attorney General shall have direct supervision over every district attorney and sheriff and over such other law-enforcement officers as may be designated by law, in all matters pertaining to the duties of their respective offices, and may require any of said officers to make reports concerning the investigation, detection, prosecution, and punishment of crime in their respective jurisdictions as to the Attorney General may seem advisable.” (Italics added.) But the fact that the Attorney General has authority over all law enforcement officers, in a general constitutional sense, does not negate the de facto and de jure autonomy of the district attorney‘s office.
What the court stated in People v. Brophy (1942) 49 Cal.App.2d 15 [120 P.2d 946], commenting on the same constitutional language as quoted in the above paragraph, is still good law: “Manifestly, ‘direct supervision over every district attorney and sheriff and over such other law enforcement officers as may be designated by law’ does not contemplate absolute control and direction of such officials. Especially is this true as to sheriffs and district attorneys, as the provision plainly indicates. These officials are
The status of district attorneys as county officers finds confirmation in other constitutional and statutory provisions that further distinguish this case from McMillian. The McMillian court found it significant that the sheriff must “attend upon” the state courts in his county, and a judge, who is a state officer, may order sheriffs to take certain actions even if the judge sits in a distant county. (McMillian, supra, 520 U.S. at p. ___ [117 S.Ct. at p. 1739].) As the court explained, many judicial circuits in Alabama contain more than one county. (Id. at p. ___, fn. 6 [117 S.Ct. at p. 1739].) In contrast, here in California each county has its own superior court, and these courts have no appreciable authority to command the actions of a district attorney outside of the county in which they sit. The one exception, found in
Moreover, district attorneys in California, unlike sheriffs in Alabama, have their salaries fixed for them not by state law but by the county board of supervisors (
The McMillian court also found significance in the fact that an Alabama sheriff is not controlled by the governing body of the county. (See McMillian, supra, 520 U.S. at p. ___ [117 S.Ct. at p. 1739].) It is true that a
The court‘s decision in Pembaur v. Cincinnati (1986) 475 U.S. 469 [106 S.Ct. 1292, 89 L.Ed.2d 452] supports the principle that a district attorney can be an autonomous county policymaker whose decisions can cause the county to incur section 1983 liability. In Pembaur, the court considered whether the forcible entry of sheriffs’ deputies into the plaintiff‘s office could be a basis for a county‘s liability under section 1983. The Court of Appeals had concluded that this single instance of alleged misconduct could not be considered a county policy and therefore the county could not be held liable. The United States Supreme Court reversed, holding that because the deputies’ actions had been authorized by the county prosecutor, who, under Ohio law “could establish county policy under appropriate circumstances,” such actions could constitute official county policy. (Id. at p. 484 [106 S.Ct. at p. 1301].) Implicit in Pembaur is the assumption that county prosecutors and district attorneys may be viewed as independent county policymakers, and that their very autonomy from the county governing body establishes them as such.
The cases from other states cited by the majority in support of their position are readily distinguishable. For example, in Oklahoma and Mississippi the district attorney is paid directly by the state and his or her employees are classified as state employees. (See Arnold v. McClain, supra, 926 F.2d 963, 965-966 [citing Laidley v. McClain (10th Cir. 1990) 914 F.2d 1386, 1390]); Chrissy F. by Medley v. Mississippi DPW, supra, 925 F.2d 844, 849.) In Georgia and Colorado district attorneys generally represent a judicial district that encompasses more than one county and therefore cannot be considered simply as county policymakers. (Owens v. Fulton County, supra, 877 F.2d 947, 951; Rozek v. Topolnicki, supra, 865 F.2d 1154, 1158.) In California, to the contrary, the district attorney is considered a county officer, is paid by the county, and has his or her jurisdiction limited by the county. The foregoing cases therefore do not support the majority‘s position with respect to the district attorney‘s position under California law.
The majority recognize that a district attorney might be liable as a county officer for “action or inaction related to hiring or firing an employee,
I disagree. The distinction that confuses the majority flows from the dual nature of the district attorney as both a local officer and a representative of the state in individual cases. In fact, section 1983 is directed at “persons,” including local government entities, that act “under color of . . . State” law. A county performs numerous functions delegated to it by the state. (See, e.g., County of San Diego v. State of California (1997) 15 Cal.4th 68 [61 Cal.Rptr.2d 134, 931 P.2d 312].) In these cases, as in many others, the county is both an extension of the state and a local policymaker implementing the state‘s statutes and regulations. Given the fact that section 1983 excludes the state from liability, it seems inevitable that we must parse with some precision the functions of a local government entity that serves both as an agent of the state and a local policymaker in order to determine when the entity is acting in the latter capacity.
Accordingly, there is no insurmountable analytical difficulty to concluding that a county cannot be held liable under section 1983 when the district attorney or one of his or her deputies, as an agent of the state, commits prosecutorial misconduct, but can be held liable when the district attorney‘s hiring, training and supervision program, which the district attorney undertakes as a local policymaker, results in injury to a person‘s civil rights. This distinction is congruent with section 1983 jurisprudence, wherein it is held that in order for a government entity to be found liable for the actions of its employees, some sort of custom or policy is required, and a single instance of misjudgment or malfeasance on an employee‘s part is insufficient. (Bd. of County Com‘rs of Bryan County, Okl. v. Brown (1997) 520 U.S. 397, 117 S.Ct. 1382, 1389-1390, 137 L.Ed.2d 626.) Thus, at least three courts from out-of-state jurisdictions have come to the conclusion that when district attorneys engage in training, supervision or other managerial matters over which they have local control, they act as county officers, not as a representatives of the state. (Walker v. City of New York, supra, 974 F.2d 293, 301; Gobel v. Maricopa County, supra, 867 F.2d 1201, 1209; Crane v. State of Tex., supra, 759 F.2d 412, 429.)
In sum, California recognizes the district attorney constitutionally and by statute as a county official who possesses considerable local autonomy.
I emphasize the heavy burden that plaintiffs bear in proving that their injuries resulted from a policy within the district attorney‘s office, as opposed to the misfeasance, malfeasance, or negligence of individual members of that office: They must establish a pattern of action that amounts to a custom or policy of deliberate indifference to their civil rights. (See Canton v. Harris (1989) 489 U.S. 378 [109 S.Ct. 1197, 103 L.Ed.2d 412]; Bd. of County Com‘rs of Bryan County, Okl. v. Brown, supra, 520 U.S. 397.) But if such a custom or policy did exist and caused plaintiffs’ injuries, they should be entitled to some relief under section 1983.
Kennard, J., concurred.