Respondents, 17 black and two white residents of Cairo,
Illinois, brought a civil rights class action against the then
State's Attorney of Alexander County, Illinois, individually and in
his official capacity, charging him with certain purposeful racial
discrimination practices, under color of state law, in violation of
the Constitution and 42 U.S.C. §§ 1981-1983, 1985. The District
Court dismissed the complaint for want of jurisdiction to grant
injunctive relief. The Court of Appeals reversed, holding that a
prosecutor's
quasi-judicial immunity from injunctive
proscription was not absolute, and that, since respondents'
remedies at law were inadequate, an injunctive remedy might be
available if respondents could prove their claims. Subsequent to
the Court of Appeals' decision, petitioner was elected as successor
State's Attorney, and, in the petition for certiorari filed with
this Court, was substituted as a party.
Held:
Where, on the record, respondents have never charged petitioner
with anything, and do not presently seek to enjoin him from doing
anything, so that there may no longer be a controversy between
respondents and any Alexander County State's Attorney concerning
injunctive relief to be applied
in futuro, the case is
vacated and remanded to the Court of Appeals for a determination,
in the first instance, of whether the former dispute is now moot
and whether respondents will want to, and should be permitted to,
amend their complaint to include claims for relief against
petitioner. Pp.
414 U. S.
520-523.
468 F.2d 389, vacated and remanded.
WHITE, J., delivered the opinion for a unanimous Court.
Page 414 U. S. 515
MR. JUSTICE WHITE delivered the opinion of the Court.
This is a companion case to
O'Shea v. Littleton, ante,
p.
414 U. S. 488,
involving claims which the respondents, 17 black and two white
residents of Cairo, Illinois, individually and as representatives
of the class they purport to represent, set forth in that portion
of their amended civil rights complaint which alleged wrongful
conduct on the part of Peyton Berbling, individually and in his
capacity as State's Attorney for Alexander County, Illinois, the
county in which the city of Cairo is located. As discussed in
O'Shea, the complaint alleged a broad range of racially
discriminatory patterns and practices in the administration of the
criminal justice system in Alexander County by the Police
Commissioner of Cairo, Magistrate Michael O'Shea and Associate
Judge Dorothy Spomer of the Alexander County Circuit Court, State's
Attorney Berbling, and Earl Shepherd, an investigator for Berbling.
Allegedly, a decade of active, but lawful, efforts to achieve
racial equality for the black residents of Cairo had resulted in
continuing intentional conduct on the part of those named as
defendants in the complaint to deprive the plaintiff respondents of
the evenhanded protection of the criminal laws, in violation of
various amendments to the Constitution and 42 U.S.C. §§ 1981, 1982,
1983, and 1985.
Page 414 U. S. 516
In particular, the complaint charged State's Attorney Berbling
with purposeful racial discrimination, under color of state law, by
neglecting to provide for respondents' safety though knowing of the
possibility of racial disorders, by refusing to prosecute persons
who threaten respondents' safety and property, and by refusing to
permit respondents to give evidence against white persons who
threaten them. It was alleged, with particular incidents recounted
as to some charges, that "Berbling has denied and continues to
deny" the constitutional rights of respondents and members of their
class by following the practices of (a) refusing to initiate
criminal proceedings and to hear criminal charges against white
persons upon complaint by members of respondents' class, [
Footnote 1]
Page 414 U. S. 517
(b) submitting misdemeanor complaints which have been filed by
black persons against whites to a grand jury, rather than
proceeding by information or complaint, and then either
interrogating witnesses and complainants before the grand jury with
purposeful intent to racially discriminate [
Footnote 2] or failing to interrogate them at all,
[
Footnote 3] (c)
inadequately
Page 414 U. S. 518
prosecuting the few criminal proceedings instituted against
whites at respondents' behest in order to lose the cases or settle
them on terms more favorable than those brought against blacks, (d)
recommending substantially greater bonds and sentences in cases
involving respondents and members of their class than for cases
involving whites, (e) charging respondents and members of their
class with significantly more serious charges for conduct which
would result in no charge or a minor charge against a white person,
and (f) depriving respondents of their right to give evidence
concerning the security of members of their class. [
Footnote 4] Each of these practices was
alleged to be willful, malicious, and carried out with intent to
deprive respondents and members of their class of the benefits of
the county criminal justice system and to deter them from
peacefully boycotting or otherwise engaging in protected First
Amendment activity. Since there was asserted to be no adequate
remedy at law, respondents requested that Berbling be enjoined from
continuing these practices, that he be required to
"submit a monthly report to [the District Court] concerning the
nature, status and disposition of any complaint brought to him by
plaintiffs or members of their class, or by white persons against
plaintiffs or members of their class,"
and that the District Court maintain continuing jurisdiction in
this action. [
Footnote 5]
Page 414 U. S. 519
The District Court dismissed that portion of the complaint
requesting injunctive relief against Berbling, as well as against
Investigator Shepherd, Magistrate O'Shea, and Judge Dorothy Spomer,
for want of jurisdiction to grant any such remedy, which was
perceived as directed against discretionary acts on the part of
these elected state officials. The Court of Appeals reversed,
holding that whatever
quasi-judicial immunity from
injunctive proscription it had previously recognized was
appropriate for a prosecutor was not absolute, and, since
respondents' alternative remedies at law were thought to be
inadequate, an injunctive remedy might be available if respondents
could prove their claims of racial discrimination at trial.
[
Footnote 6]
The Court of Appeals rendered its decision on October 6, 1972.
At the subsequent election in November
Page 414 U. S. 520
of that year, petitioner W. C. Spomer [
Footnote 7] was chosen by the voters to succeed
Berbling as State's Attorney for Alexander County, and Spomer took
office on December 4. In the petition for certiorari filed with
this Court on January 3, 1973, seeking review of the Court of
Appeals' approval of the possibility of some form of injunctive
relief addressed to the State's Attorney in the course of his
prosecutorial role, petitioner Spomer relied upon Supreme Court
Rule 48(3), which provides that,
"[w]hen a public officer is a party to a proceeding here in his
official capacity and during its pendency dies, resigns, or
otherwise ceases to hold office, the action does not abate and his
successor is automatically substituted as a party."
Respondents did not oppose the substitution, [
Footnote 8] and we granted certiorari and set
the case for argument together with
O'Shea v. Littleton,
ante, p.
414 U. S. 488. 411
U.S. 915 (1973).
It has become apparent, however, that there is nothing in the
record upon which we may firmly base a conclusion that a concrete
controversy between W. C. Spomer and the respondents is presented
to this Court for resolution. No allegations in the complaint cited
any conduct of W. C. Spomer as the basis for equitable or any other
relief. Indeed, Spomer is not named as a
Page 414 U. S. 521
defendant in the complaint at all, and, of course, he never
appeared before either the District Court or the Court of Appeals.
The injunctive relief requested against former State's Attorney
Berbling, moreover, is based upon an alleged practice of willful
and malicious racial discrimination evidenced by enumerated
instances in which Berbling favored white persons and disfavored
Negroes. The wrongful conduct charged in the complaint is personal
to Berbling, despite the fact that he was also sued in his then
capacity as State's Attorney. [
Footnote 9] No charge is made in the complaint that the
policy of the office of State's Attorney is to follow the
intentional practices alleged, apart from the allegation that
Berbling, as the incumbent at the time, was then continuing the
practices he had previously followed.
Cf. Allen v. Regents of
the University System of Georgia, 304 U.
S. 439,
304 U. S.
444-445 (1938). Nor have respondents ever attempted to
substitute Spomer for Berbling after the Court of Appeals decision,
so far as the record shows, or made any record allegations that
Spomer intends to continue the asserted practices of Berbling
of
Page 414 U. S. 522
which they complain. The plain fact is that, on the record
before us, respondents have never charged Spomer with anything, and
do not presently seek to enjoin him from doing anything. [
Footnote 10] Under these
circumstances, recognizing that there may no longer be a
controversy between respondents and any Alexander County State's
Attorney concerning injunctive relief to be applied
in futuro,
see Two Guys v. McGinley, 366 U. S. 582,
366 U. S. 588
(1961), we remand to the Court of Appeals for a determination, in
the first instance, of whether the former dispute regarding the
availability of injunctive relief against the State's Attorney is
now moot, and whether respondents will want to, and should be
permitted to, amend their complaint to include claims for
relief
Page 414 U. S. 514
against the petitioner.
Cf. Land v. Dollar,
330 U. S. 731,
330 U. S. 739
(1947).
The judgment of the Court of Appeals is vacated, and the case is
remanded for further consideration and proceedings consistent with
this opinion.
It is so ordered.
[
Footnote 1]
Specific examples of Berbling's practice were alleged as
follows:
"(1) On March 28, 1969, defendant refused to permit James Wilson
to file criminal charges against Charlie Sullivan, a white man, who
pointed a gun at him as he (Wilson) attempted to move into the
house next door to Charlie Sullivan on 22nd Street, in Cairo,
Illinois. Sullivan threatened Wilson with the gun and told him to
move the truck containing household furnishings and leave the area,
thereby attempting to prevent James Wilson from holding
property."
"(2) On or about March 29, 1969, defendant refused to permit
James Wilson to file criminal charges against Charlie Sullivan who
fired shots from a gun around James Wilson's home to intimidate his
family in order to prevent James Wilson from holding property."
"(3) In January, 1970, defendant refused to permit Robert Martin
to file charges against Charlie Sullivan, who tried to run him down
in a truck while peacefully marching in exercise of his First
Amendment rights."
"(4) In June, 1970, defendant refused to permit Ezell Littleton
to file charges against a white man who, without cause or
justification, assaulted and battered him."
"(5) In June, 1970, defendant refused to permit Rev. Manker
Harris to file charges against two white policemen of the City of
Cairo for attempted murder and/or malicious prosecution."
"(6) On August 10, 1970, defendant Berbling, through a
subordinate, defendant Earl Shepherd, refused to permit plaintiff
Hazel James to file criminal charges against Raymond Hurst, a white
man, who had kicked plaintiff James in the stomach while she was
peacefully demonstrating against the racially discriminatory
practices of merchants and of public officials of the City of
Cairo."
"(7) In May, 1969, Plaintiff Ewing and eight others could have
[brought] and desired to bring criminal charges against a white man
who threatened them with a shotgun, but did not because they knew
of defendant's practice of refusing to take complaints and were
discouraged from making useless gestures."
[
Footnote 2]
Cited in support of this allegation was an incident when
"Morris Garrett (a 13-year-old boy), on August 8, 1970, during a
demonstration against the racially discriminatory practices of
merchants and public officials of the City of Cairo, was struck by
one Tom Madra. A complaint was filed which was presented to the
grand jury. Morris Garrett appeared before the grand jury.
Defendant Berbling, rather than question him regarding the
incident, asked him such questions as 'did you get paid for
picketing?' A no-true bill was returned by the grand jury."
[
Footnote 3]
Two episodes of this type were described:
"(1) On August 13, 1970, Cheryl Garrett and Yvonda Taylor, ages
18 and 16 respectively, were shot at by one Jack Guetterman, Jr.
Rev. Walter Garrett and Ezell Littleton, following a telephone call
from the young girls, went to the scene of the shooting. Shortly
thereafter, police officers arrived. While Rev. Walter Garrett was
discussing the situation with one police officer, one Jack
Guetterman, Sr., struck Rev. Garrett in the face, causing him to
fall to the ground. A complaint was filed by Rev. Walter Garrett
respecting this incident. Defendant Berbling presented the
complaint to the grand jury, but Rev. Garrett was not interrogated
at all respecting the incident. Ezell Littleton, who witnessed the
assault, was not called to testify."
"(2) On or about August 8, 1970, Curtis Johnson was struck by
one Al Moss while demonstrating against the racially discriminatory
practices of merchants and public officials of the City of Cairo. A
complaint was filed, which was presented to the grand jury. Curtis
Johnson, however, was not interrogated by defendant Berbling
respecting the incident."
[
Footnote 4]
Thus, respondents alleged that Berbling sought the
"dropping of a criminal charge arising out of a complaint filed
by Frank Hollis a black person, against Tom Madra, a white person,
in return for which [Berbling] would drop pending criminal charges
against several of the [respondents]."
[
Footnote 5]
Damages were also sought against Berbling for these practices
and for an alleged conspiracy with his investigator, Shepherd, to
refuse to prosecute those who threatened respondents' safety and to
prevent them from giving evidence against whites concerning acts
threatening their personal safety. As to the latter, the sixth
example in
n 1,
supra,
was reiterated. The Court of Appeals held that,
"insofar as defendant Berbling was acting within his
prosecutorial function, he has a
quasi-judicial immunity
from suit for damages under the Civil Rights Acts,"
468 F.2d 389, 410, and remanded to allow respondents to amend
the complaint and to have the District Court determine in the first
instance whether some of the acts then alleged would be
sufficiently removed from
quasi-judicial activity "to
warrant removing the cloak of immunity from them."
Id. at
410-411. Berbling's petition for certiorari questioning this aspect
of the Court of Appeals' ruling was not timely filed in this Court,
and has been denied. No. 72-1107,
post, p. 1143. No
question concerning damage relief is involved in the case presently
before us.
[
Footnote 6]
The scope of any injunction which might be found warranted was
not finally established or restricted. It was suggested that an
initial decree might require "only periodic reports of various
types of aggregate data on actions on bail and sentencing and
dispositions of complaints," and confidence was expressed that the
District Court would be able to establish further guides as
required and, if necessary, to consider individual decisions. 468
F.2d at 415.
[
Footnote 7]
State's Attorney W. C. Spomer should not be confused with Judge
Dorothy Spomer, a petitioner in O'Shea v. Littleton,
ante,
p.
414 U. S. 488.
[
Footnote 8]
In their brief in opposition to the petition, p. 6, respondents
stated that they
"seek only equitable relief against petitioner W. C. Spomer.
Because the amended complaint asks relief against Berbling in his
individual as well as his official capacity, he remains a party in
interest in this action."
Of course, Spomer, not Berbling, filed for review of the Court
of Appeals' decision respecting injunctive relief, and Berbling is
not before the Court in this case. Nor did respondents ever seek
relief of any kind against Spomer by their complaint.
[
Footnote 9]
This Court's Rule 48(3), governing automatic substitution of
successor public officers when the predecessor was a party "in his
official capacity," is based upon Fed.Rule Civ.Proc. 25(d), as
amended in 1961. Prior to the 1961 amendment, substitution was not
automatic. The history and application of former and present Rule
25(d) are sketched in 3B J. Moore, Federal Practice � 25.09[1][3]
(2d ed.1969). Of particular relevance is the Advisory Committee
Note on the 1961 "automatic substitution" amendment to Rule 25(d),
which suggests that
"[i]n general it will apply whenever effective relief would call
for corrective behavior by the one then having official status and
power, rather than one who has lost that status and power through
ceasing to hold office."
See id., � 25.09 [3], at 25-403, 25-404. The question
of whether corrective behavior is thought to be necessary is, of
course, dependent on whether the dispute with the predecessor
continues with the successor.
[
Footnote 10]
Despite the statement respondents made in their brief in
opposition to the petition for certiorari,
n 8,
supra, the record does not contain any
indication that respondents have ever sought injunctive relief
against Spomer in any proceedings in the District Court or the
Court of Appeals. Nor would they have had reason to do so in the
absence of knowledge that he would succeed Berbling. While Spomer
did substitute himself in place of his predecessor, and his counsel
made the somewhat extraordinary statement at oral argument that
"there is nothing in this record, nor will there be on the part
of my client, to indicate that he would change the policies which
are alleged to have been exercised by his predecessor,"
Tr. of Oral Arg. 7, to determine whether respondents have a live
controversy with Spomer, we must look to the charges they press.
Indeed, counsel for respondents observed at oral argument of this
case that,
"in order for us to proceed against Mr. Spomer, it would be
necessary for us to investigate the facts to see that the
concession apparently made by the State's Attorney is true and
amend our complaint."
Id. at 19. This merely serves to underscore our concern
that we are being asked to render an opinion on the merits of what
is now and may continue to be a hypothetical or abstract dispute.
See Aetna Life Ins. Co. v. Haworth, 300 U.
S. 227,
300 U. S.
240-241 (1937);
United States v. Fruehauf,
365 U. S. 146,
365 U. S. 157
(1961);
North Carolina v. Rice, 404 U.
S. 244,
404 U. S.
245-246 (1971).