Respondent brought suit in Federal District Court under 42
U.S.C. § 1983 against petitioners Polk County, its Offender
Advocate, its Board of Supervisors, and Martha Shepard, an attorney
in the Offender Advocate's Office. As the factual basis for his
lawsuit, respondent alleged that Shepard, who had been assigned to
represent him in an appeal of a criminal conviction to the Iowa
Supreme Court, failed to represent him adequately, since she had
moved for permission to withdraw as counsel on the ground that
respondent's claims were legally frivolous. The Iowa Supreme Court
granted Shepard's motion and dismissed respondent's appeal. In the
District Court, respondent alleged that Shepard's actions violated
certain of his constitutional rights. To establish that Shepard
acted "under color of state law," a jurisdictional requisite for a
§ 1983 action, respondent relied on her employment by the county.
The District Court dismissed the claims against all of the
petitioners, but the Court of Appeals reversed.
Held:
1. A public defender does not act "under color of state law"
when performing a lawyer's traditional functions as counsel to an
indigent defendant in a state criminal proceeding. Because it was
based on such activities, the complaint against Shepard must be
dismissed. Pp.
454 U. S.
317-325.
(a) From the moment of Shepard's assignment to represent
respondent, their relationship became identical to that existing
between any other lawyer and client, except for the source of
Shepard's payment. The legal system posits that a defense lawyer
best serves the public not by acting on the State's behalf or in
concert with it, but rather by advancing the undivided interests of
the client. This is essentially a private function for which state
office and authority are not needed. Pp.
454 U. S.
317-319.
(b) Cases in which this Court assumed that state-employed
doctors serving in supervisory capacities at state institutions
could be held liable under § 1983 are not controlling.
O'Connor
v. Donaldson, 422 U. S. 563, and
Estelle v. Gamble, 429 U. S. 97,
distinguished. Pp.
454 U. S.
319-320.
(c) Although the employment relationship between the State and a
public defender is a relevant factor, it is insufficient to
establish that a
Page 454 U. S. 313
public defender acts under color of state law within the meaning
of § 1983. A public defender is not amenable to administrative
direction in the same sense as other state employees. And equally
important, it is the State's constitutional obligation to respect
the professional independence of the public defenders whom it
engages. Pp.
454 U. S.
320-322.
(d) It is the ethical obligation of any lawyer -- whether
privately retained or publicly appointed -- not to clog the courts
with frivolous motions or appeals. Respondent has no legitimate
complaint that Shepard failed to prosecute a frivolous appeal on
his behalf. Pp.
454 U. S.
322-324.
2. Respondent has not alleged unconstitutional action by Polk
County, its Offender Advocate, or its Board of Supervisors. To the
extent that his claims rest on a
respondeat superior
theory of liability, they fail to present a claim under 1983. And a
constitutional tort actionable under § 1983 is not described by the
bald allegations that Shepard had injured respondent while acting
pursuant to administrative rules and procedures, and that the
county "retains and maintains, advocates out of law school" who
have on numerous occasions moved to withdraw from appeals of
convictions. Respondent failed to allege any administrative policy
that arguably caused a violation of his rights under the Sixth,
Eighth, or Fourteenth Amendments. An official,policy of withdrawal
from frivolous cases would not violate the Constitution. Pp.
454 U. S.
325-327.
628 F.2d 1104, reversed.
POWELL, J., delivered the opinion of the Court, in which BURGER,
C.J., and BRENNAN, WHITE, MARSHALL, REHNQUIST, STEVENS, and
O'CONNOR, JJ., joined. BURGER, C.J., filed a concurring opinion,
post, p.
454 U. S. 327.
BLACKMUN, J., filed a dissenting opinion,
post, p.
454 U. S.
328.
Page 454 U. S. 314
JUSTICE POWELL delivered the opinion of the Court.
The question in this case is whether a public defender acts
"under color of state law" when representing an indigent defendant
in a state criminal proceeding.
I
This case arose when the respondent Russell Richard Dodson filed
a
pro se complaint in the United States District Court for
the Southern District of Iowa. Dodson brought the action in federal
court under 42 U.S.C. § 1983. As the factual basis for his lawsuit,
Dodson alleged that Martha Shepard, an attorney in the Polk County
Offender Advocate's Office, had failed to represent him adequately
in an appeal to the Iowa Supreme Court. [
Footnote 1]
A full-time employee of the county, Shepard had been assigned to
represent Dodson in the appeal of a conviction for robbery. After
inquiring into the case, however, she moved for permission to
withdraw as counsel on the ground that Dodson's claims were wholly
frivolous. [
Footnote 2] Shepard
accompanied her motion with an affidavit explaining this
conclusion.
Page 454 U. S. 315
She also filed a memorandum summarizing Dodson's claims and the
supporting legal arguments. On November 9, 1979, the Iowa Supreme
Court granted the motion to withdraw and dismissed Dodson's
appeal.
In his complaint in the District Court, the respondent alleged
that Shepard's actions, especially her motion to withdraw, had
deprived him of his right to counsel, subjected him to cruel and
unusual punishment, and denied him due process of law. [
Footnote 3] He sought injunctive relief
as well as damages in the amount of $175,000. To establish that
Shepard acted "under color of state law," a jurisdictional
requisite for a § 1983 action, Dodson relied on her employment by
the county. Dodson also sued Polk County, the Polk County Offender
Advocate, and the Polk County Board of Supervisors. He alleged that
the Offender Advocate and the Board of Supervisors had established
the rules and procedures that Shepard was bound to follow in
handling criminal appeals.
The District Court dismissed Dodson's claims against all
defendants.
483 F.
Supp. 347 (1979). It held that the relevant actions by Shepard
had not occurred under color of state law. Canvassing the leading
authorities, it reasoned that a public defender owes a duty of
undivided loyalty to his client. A public defender therefore could
not be sued as an agent of the State. The District Court dismissed
the Offender Advocate from the suit on the same theory. It also
held
Page 454 U. S. 316
that Dodson's complaint failed to allege the requisite personal
involvement to state a § 1983 claim against Polk County and the
Board of Supervisors.
The Court of Appeals for the Eighth Circuit reversed. 628 F.2d
1104 (1980). Like the District Court, it assumed that a public
defender owed his client the same responsibility as any other
attorney. In its view, however, the "dispositive point" was that
Iowa Offender Advocates were "employees of the County," which was
"merely a creature of the State." Whether public defenders received
instructions from county officials was "beside the point."
"Public defenders receive their power not because they are
selected by their clients, but because they are employed by the
County to represent a certain class of clients, who likely have
little or no choice in selecting the lawyer who will defend
them."
Id. at 1106. In holding as it did on this issue, the
court recognized that its decision conflicted with the holdings of
a number of other Courts of Appeals. Reasoning that Dodson's
pro se complaint should be liberally construed, the court
also ordered reinstatement of the § 1983 claims against the
Offender Advocate and the Board of Supervisors. The question of
their involvement was left for factual development in the District
Court. In addition, the court ordered that Dodson be given an
opportunity on remand to state his claim against the county with
greater specificity. Finally, the court rejected the argument that
a public defender should enjoy the same immunity provided to judges
and prosecutors. It held that the defendants were entitled to a
defense of "good faith," but not of "absolute," immunity.
One member of the panel filed a dissent. The dissent argued that
a person acts under color of state law only when exercising powers
created by the authority of the State. In this case, it reasoned,
the alleged wrongs were not made possible only because the
defendant was a public defender. In
Page 454 U. S. 317
essence, the complaint asserted an ordinary malpractice claim,
which would be equally maintainable against a retained attorney or
appointed counsel. The dissent also argued that public defenders
should be entitled to absolute immunity from suit.
We granted certiorari to resolve the division among the Courts
of Appeals over whether a public defender acts under color of state
law when providing representation to an indigent client. [
Footnote 4] 450 U.S. 963 (1981). We now
reverse.
II
In
United States v. Classic, 313 U.
S. 299,
313 U. S. 326
(1941), this Court held that a person acts under color of state law
only when exercising power "possessed by virtue of state law and
made possible only because the wrongdoer is clothed with the
Page 454 U. S. 318
authority of state law." [
Footnote 5] In this case, the Offender Advocate for Polk
County assigned Martha Shepard to represent Russell Dodson in the
appeal of his criminal conviction. This assignment entailed
functions and obligations in no way dependent on state authority.
From the moment of her appointment, Shepard became Dodson's lawyer,
and Dodson became Shepard's client. Except for the source of
payment, their relationship became identical to that existing
between any other lawyer and client.
"Once a lawyer has undertaken the representation of an accused,
the duties and obligations are the same whether the lawyer is
privately retained, appointed, or serving in a legal aid or
defender program."
ABA Standards for Criminal Justice 4-3.9 (2d ed.1980). [
Footnote 6]
Within the context of our legal system, the duties of a defense
lawyer are those of a personal counselor and advocate. It is often
said that lawyers are "officers of the court." But the Courts of
Appeals are agreed that a lawyer representing a client is not, by
virtue of being an officer of the court, a state actor "under color
of state law" within the meaning of § 1983. [
Footnote 7] In our system, a defense lawyer
characteristically opposes the designated representatives of the
State. The system assumes that adversarial testing will ultimately
advance the public interest in truth and fairness. But it posits
that a defense lawyer best serves the public not by acting on
behalf of the State or in concert with it, but rather by
advancing
Page 454 U. S. 319
"the undivided interests of his client." [
Footnote 8] This is essentially a private
function, traditionally filled by retained counsel, for which state
office and authority are not needed. [
Footnote 9]
III
The respondent argues that a public defender's employment
relationship with the State, rather than his function, should
determine whether he acts under color of state law. We take a
different view.
A
In arguing that the employment relationship establishes that the
public defender acts under color of state law, Dodson relies
heavily on two cases in which this Court assumed that physicians,
whose relationships with their patients have not traditionally
depended on state authority, could be held liable under § 1983.
See O'Connor v. Donaldson, 422 U.
S. 563 (1975);
Estelle v. Gamble, 429 U. S.
97 (1976). These cases, he argues, are analytically
identical to this one. Like the physicians in
O'Connor and
Estelle, a public defender is paid by the State. Further,
like the institutionalized patients in
Page 454 U. S. 320
those cases, an indigent convict is unable to choose the
professional who will render him traditionally private services.
These factors, it is argued, establish that public defenders --
like physicians in state hospitals -- act under color of state law
and are amenable to suit under § 1983.
In our view,
O'Connor and
Estelle are
distinguishable from this case.
O'Connor involved claims
against a psychiatrist who served as the superintendent at a state
mental hospital. Although a physician with traditionally private
obligations to his patients, he was sued in his capacity as a state
custodian and administrator. Unlike a lawyer, the administrator of
a state hospital owes no duty of "undivided loyalty" to his
patients. On the contrary, it is his function to protect the
interest of the public, as well as that of his wards. Similarly,
Estelle involved a physician who was the medical director
of the Texas Department of Corrections and also the chief medical
officer of a prison hospital. He saw his patients in a custodial,
as well as a medical, capacity.
Because of their custodial and supervisory functions, the
state-employed doctors in
O'Connor and
Estelle
faced their employer in a very different posture than does a public
defender. Institutional physicians assume an obligation to the
mission that the State, through the institution, attempts to
achieve. With the public defender, it is different. As argued in
the dissenting opinion in the Court of Appeals, it is the function
of the public defender to enter "not guilty" pleas, move to
suppress State's evidence, object to evidence at trial,
cross-examine State's witnesses, and make closing arguments in
behalf of defendants. [
Footnote
10] All of these are adversarial functions. We find it
peculiarly difficult to detect any color of state law in such
activities.
B
Despite the public defender's obligation to represent his
clients against the State, Dodson argues -- and the Court of
Appeals concluded -- that the status of the public defender
Page 454 U. S. 321
differs materially from that of other defense lawyers. Because
public defenders are paid by the State, it is argued that they are
subject to supervision by persons with interests unrelated to those
of indigent clients. Although the employment relationship is
certainly a relevant factor, we find it insufficient to establish
that a public defender acts under color of state law within the
meaning of § 1983.
First, a public defender is not amenable to administrative
direction in the same sense as other employees of the State.
Administrative and legislative decisions undoubtedly influence the
way a public defender does his work. State decisions may determine
the quality of his law library or the size of his caseload. But a
defense lawyer is not, and by the nature of his function cannot be,
the servant of an administrative superior. Held to the same
standards of competence and integrity as a private lawyer,
see
Moore v. United Sates, 432 F.2d 730 (CA3 1970), a public
defender works under canons of professional responsibility that
mandate his exercise of independent judgment on behalf of the
client.
"A lawyer shall not permit a person who recommends, employs, or
pays him to render legal services for another to direct or regulate
his professional judgment in rendering such legal services."
DR 5-107(B), ABA Code of Professional Responsibility (1976).
[
Footnote 11]
Second, and equally important, it is the constitutional
obligation of the State to respect the professional
independence
Page 454 U. S. 322
of the public defenders whom it engages. [
Footnote 12] This Court's decision in
Gideon
v. Wainwright, 372 U. S. 335
(1963), established the right of state criminal defendants to the
"
guiding hand of counsel at every step in the proceedings
against [them].'" Id. at 372 U. S. 345,
quoting Powell v. Alabama, 287 U. S.
45, 287 U. S. 69
(1932). Implicit in the concept of a "guiding hand" is the
assumption that counsel will be free of state control. There can be
no fair trial unless the accused receives the services of an
effective and independent advocate. See, e.g., Gideon v.
Wainwright, supra; Holloway v. Arkansas, 435 U.
S. 475 (1978). At least in the absence of pleading and
proof to the contrary, we therefore cannot assume that Polk County,
having employed public defenders to satisfy the State's obligations
under Gideon v. Wainwright, has attempted to control their
action in a manner inconsistent with the principles on which
Gideon rests. [Footnote
13]
C
The respondent urges a different view of the public defender's
relationships to his clients and to the State. Whatever
Page 454 U. S. 323
their ethical obligations, public defenders do not, he argues,
characteristically extend their clients the same undivided loyalty
tendered by privately retained attorneys. In support of this
argument, Dodson notes that the public defender moved to be
dismissed from his case against the client's wishes. Dodson claims
to have suffered prejudice from this act. He insists that such
action would not have been taken by a privately retained
attorney.
Dodson's argument assumes that a private lawyer would have borne
no professional obligation to refuse to prosecute a frivolous
appeal. This is error. In claiming that a public defender is
peculiarly subject to divided loyalties, Dodson confuses a lawyer's
ethical obligations to the judicial system with an allegiance to
the adversary interests of the State in a criminal prosecution.
Although a defense attorney has a duty to advance all colorable
claims and defenses, the canons of professional ethics impose
limits on permissible advocacy. It is the obligation of any lawyer
-- whether privately retained or publicly appointed -- not to clog
the courts with frivolous motions or appeals. [
Footnote 14] Dodson has no legitimate complaint
that his lawyer refused to do so.
Page 454 U. S. 324
As a matter of empirical fact, it may or may not be true that
the professional obligation to withdraw from frivolous appeals will
be invoked with disproportionate frequency in cases involving
indigent prisoners. The recent burgeoning of postconviction
remedies has undoubtedly subjected the legal system to
unprecedented strains, including increased demands for legal
assistance. [
Footnote 15]
The State of Iowa has responded by authorizing the provision of
greater representation than the Constitution requires. Its system
of public defenders contemplates the extension of legal assistance
through the various tiers of postconviction review, incorporating
only the general ethical limitation that counsel should withdraw
from frivolous cases. [
Footnote
16]
In this context, Dodson argues that public defenders making
withdrawal decisions are viewed by indigent prisoners as hostile
state actors. We think there is little justification for this view,
if indeed it is widely held. [
Footnote 17]
IV
In concluding that Shepard did not act under color of state law
in exercising her independent professional judgment in a criminal
proceeding, we do not suggest that a public defender
Page 454 U. S. 325
never acts in that role. In
Branti v. Finkel,
445 U. S. 507
(1980), for example, we found that a public defender so acted when
making hiring and firing decisions on behalf of the State. It may
be -- although the question is not present in this case -- that a
public defender also would act under color of state law while
performing certain administrative and possibly investigative
functions.
Cf. Imbler v. Pachtman, 424 U.
S. 409,
424 U. S.
430-431, and n. 33 (1976). And, of course, we intimate
no views as to a public defender's liability for malpractice in an
appropriate case under state tort law.
See Ferri v.
Ackerman, 444 U. S. 193,
444 U. S. 198
(1979). [
Footnote 18] With
respect to Dodson's § 1983 claims against Shepard, we decide only
that a public defender does not act under color of state law when
performing a lawyer's traditional functions as counsel to a
defendant in a criminal proceeding. [
Footnote 19] Because it was based on such activities, the
complaint against Shepard must be dismissed.
V
In his complaint in the District Court, Dodson also asserted §
1983 claims against the Offender Advocate, Polk County, and the
Polk County Board of Supervisors. Section 1983 will not support a
claim based on a
respondeat superior theory of liability.
Monell v. New York City Dept. of Social Services,
436 U. S. 658,
436 U. S. 694
(1978). To the extent that Dodson's claims rest on this basis, they
fail to present a federal claim.
Page 454 U. S. 326
The Court of Appeals apparently read Dodson's
pro se
complaint as susceptible of another construction. It found an
actionable claim in the bald allegation that Shepard had injured
him while acting pursuant to administrative "rules and procedures
for . . . handling criminal appeals," and that her employers were
therefore responsible for her actions. 628 F.2d at 1108. We also
have noted an allegation in respondent's complaint that the county
"retains and maintains, advocates out of law school" who have, on
numerous occasions, moved to withdraw from appeals of criminal
convictions.
The question is whether either allegation describes a
constitutional tort actionable under § 1983. We conclude not. In
Monell v. New York City Dept. of Social Services, supra,
we held that official policy must be "the moving force of the
constitutional violation" in order to establish the liability of a
government body under § 1983.
Id. at
436 U. S. 694.
See Rizzo v. Goode, 423 U. S. 362,
423 U. S.
370-377 (1976) (general allegation of administrative
negligence fails to state a constitutional claim cognizable under §
1983). In this case, the respondent failed to allege any policy
that arguably violated his rights under the Sixth, Eighth, or
Fourteenth Amendments. He did assert that assistant public
defenders refused to prosecute certain appeals on grounds of their
frivolity. But a policy of withdrawal from frivolous cases would
not violate the Constitution.
Anders v. California,
386 U. S. 738
(1967). And respondent argued the existence of no impermissible
policy pursuant to which the withdrawals might have occurred.
Respondent further asserted that he personally was deprived of a
Sixth Amendment right to effective counsel. Again, however, he
failed to allege that this deprivation was caused by any
constitutionally forbidden rule or procedure.
When Dodson's complaint is viewed against the standards of our
cases, even in light of the sympathetic pleading requirements
applicable to
pro se petitioners,
see Haines v.
Kerner, 404 U. S. 519
(1972) (per curiam), we do not believe
Page 454 U. S. 327
he has alleged unconstitutional action by the Offender Advocate,
Polk County, or the Polk County Board of Supervisors. Accordingly,
his claims against them must be dismissed.
VI
For the reasons stated in this opinion, the decision of the
Court of Appeals is
Reversed.
[
Footnote 1]
According to findings made in the District Court:
"[T]he Offender Advocate is the independent creation of the Polk
County Board of Supervisors. It or one of its lawyers is appointed
by the court to represent indigent defendants. It has a salaried
lawyer director and several full time salaried lawyers. It is fully
funded by Polk County."
483 F.
Supp. 347, 349, n. 2 (1979). The office handles about 2,500
cases per year.
[
Footnote 2]
She did so pursuant to Rule 104 of the Iowa Rules of Appellate
Procedure, which provides in pertinent part:
"(
a) If counsel appointed to represent a convicted
indigent defendant in an appeal to the supreme court is convinced
after conscientious investigation of the trial transcript that the
appeal is frivolous and that he cannot, in good conscience, proceed
with the appeal, he may move the supreme court in writing to
withdraw. The motion must be accompanied by a brief referring to
anything in the record that might arguably support the appeal."
Rule 104 also provides that, prior to filing any motion to
withdraw, the lawyer must advise his client in writing of his
intention to do so. The client then has 30 days in which to notify
the Supreme Court if he still wishes to proceed with the appeal. If
the client does not communicate with the Supreme Court, the motion
will be granted and the appeal dismissed. If the client does
express a desire to proceed, the Supreme Court will review the
legal points raised. If the court finds them not to be
frivolous,
"it may grant counsel's motion to withdraw but will prior to
submission of the appeal afford the indigent the assistance of new
counsel, to be appointed by the trial court."
Iowa Rule App. Proc. 104(
f).
The Iowa procedure is very similar to that prescribed by this
Court in
Anders v. California, 386 U.
S. 738 (1967).
[
Footnote 3]
Dodson also asserted pendent claims for malpractice and breach
of an oral promise to prosecute the appeal.
[
Footnote 4]
The Courts of Appeals for the Seventh and Eighth Circuits have
held that public defenders do act under color of state law in their
representation of indigent defendants.
See Robinson v.
Bergstrom, 579 F.2d 401, 405-408 (CA7 1978) (public defender
acts under color of state law, but is absolutely immune from suit
under § 1983); 628 F.2d 1104 (1980) (case below). The Fifth and the
Tenth Circuits have held that they do not.
See Slavin v.
Curry, 574 F.2d 1256, 1265 (CA5),
modified on other
grounds, 583 F.2d 779 (1978);
Espinoza v. Rogers, 470
F.2d 1174, 1175 (CA10 1972). The Third and Ninth Circuits have
supported the latter position in dicta, in cases in which they have
held that public defenders are entitled to absolute immunity from
suit under § 1983.
See Brown v. Joseph, 463 F.2d 1046,
1048 (CA3 1972),
cert. denied, 412 U.S. 950 (1973);
Miller v. Barilla, 549 F.2d 648, 650 (CA9 1977).
The petition for certiorari in this case also presented an
immunity question. The petitioners asked us to decide whether
public defenders are entitled to the same absolute immunity as
judges,
See Bradley v.
Fisher, 13 Wall. 335 (1872), and prosecutors,
see Imbler v. Pachtman, 424 U. S. 409
(1976). As we hold that a public defender does not act under color
of state law when performing the traditional functions of counsel
to a criminal defendant, we need not reach the immunity issue.
[
Footnote 5]
The Court has reiterated this definition in subsequent cases.
See, e.g., Screws v. United States, 325 U. S.
91 (1945);
Monroe v. Pape, 365 U.
S. 167 (1961).
[
Footnote 6]
See Burger, Counsel for the Prosecution and Defense --
Their Roles Under the Minimum Standards, 8 Am.Crim.L.Q. 2, 6
(1969). This view of the public defender's obligations to his
client has been accepted by virtually every court that has
considered the issue.
See, e.g., Espinoza v. Rogers,
supra, at 1175;
Brown v. Joseph, supra, at 1048.
[
Footnote 7]
See, e.g., Skolnick v. Martin, 317 F.2d 855 (CA7 1963);
Dotlich v. Kane, 497 F.2d 390 (CA8 1974). This is true
even of cases in which a private attorney has been assigned to
represent an indigent defendant.
See, e.g., Page v.
Sharpe, 487 F.2d 567, 570 (CA1 1973);
Hall v.
Quillen, 631 F.2d 1154, 1156 (CA4 1980);
Mulligan v.
Schlachter, 389 F.2d 231, 233 (CA6 1968);
French v.
Corrigan, 432 F.2d 1211, 1214 (CA7 1970),
cert.
denied, 401 U.S. 915 (1971);
Barnes v. Dorey, 480
F.2d 1057, 1061 (CA8 1973).
[
Footnote 8]
Ferri v. Ackerman, 444 U. S. 193,
444 U. S. 204
(1979):
"[T]he primary office performed by appointed counsel parallels
the office of privately retained counsel. Although it is true that
appointed counsel serves pursuant to statutory authorization and in
furtherance of the federal interest in insuring effective
representation of criminal defendants, his duty is not to the
public at large, except in that general way. His principal
responsibility is to serve the undivided interests of his client.
Indeed, an indispensable element of the effective performance of
his responsibilities is the ability to act independently of the
Government and to oppose it in adversary litigation."
[
Footnote 9]
Although lawyers are generally licensed by the States, "they are
not officials of government by virtue of being lawyers."
In re
Griffiths, 413 U. S. 717,
413 U. S. 729
(1973).
[
Footnote 10]
See 628 F.2d at 1110.
[
Footnote 11]
This rule has been adopted verbatim as DR 5-107(B), Iowa Code of
Professional Responsibility for Lawyers, printed in Iowa Rules of
Court 626 (1981). The rule is "mandatory in character," and a
lawyer who violated it would be "subject to disciplinary action" by
the Iowa courts.
Id. at 477.
See Sanchez v.
Murphy, 385 F.
Supp. 1362,
1365
(Nev.1974) ("The personal attorney-client relationship established
between a deputy [public defender] and a defendant is not one that
the public defender can control. The canons of professional ethics
require that the deputy be "his own man" irrespective of advice or
pressures from others. A deputy public defender cannot in any
realistic sense, in fulfillment of his professional
responsibilities, be a servant of the public defender. He is,
himself an independent officer").
[
Footnote 12]
Relying on such cases as
Burton v. Wilmington Parking
Authority, 365 U. S. 715
(1961), and
Moose Lodge No. 107 v. Irvis, 407 U.
S. 163 (1972), the respondent claims that the State's
funding of criminal defenses makes it a "joint participant" in that
enterprise, locked in a "symbiotic relationship" with individual
public defenders. He urges us to hold on this theory that public
defenders act under color of state law within the meaning of §
1983. We cannot do so. In both
Burton and
Moose
Lodge, the question was whether "state action" was present. In
this case, the question is whether a public defender -- who is
concededly an employee of the county -- acted "under color of state
law" in her representation of Russell Dodson. Although this Court
has sometimes treated the questions as if they were identical,
see United States v. Price, 383 U.
S. 787,
383 U. S. 794,
and n. 7 (1966), we need not consider their relationship in order
to decide this case. Our factual inquiry into the professional
obligations and functions of a public defender persuades us that
Shepard was not a "joint participant" with the State and that, when
representing respondent, she was not acting under color of state
law.
[
Footnote 13]
The dissenting opinion,
post at
454 U. S. 328,
describes the public defender as "a full-time state employee,
working in an office fully funded and extensively regulated by the
State and acting to fulfill a state obligation." The dissent
reasons from this description that, for purposes of determining the
"under color of state law" question, the function performed by the
public defender is immaterial. There is no difference in this
respect, the dissent contends, between administrative functions,
see Branti v. Finkel, 445 U. S. 507
(1980), and a lawyer's traditional functions as counsel to a
defendant in a criminal proceeding. This view ignores the basic
distinction that in the latter capacity a public defender is not
acting on behalf of the State; he is the State's adversary.
[
Footnote 14]
See ABA Standards for Criminal Justice, Commentary to 4
3.9 (2d ed.1980) ("No lawyer, whether assigned by the court, part
of a legal aid or defender staff, or privately retained or paid,
has any duty to take any steps or present dilatory or frivolous
motions or any actions that are unfounded according to the lawyer's
informed professional judgment. On the contrary, to do so is
unprofessional conduct"); ABA Standing Committee on Ethics and
Professional Responsibility, Informal Opinion 955, Obligation to
Take Criminal Appeal, reprinted in 2 Informal Ethics Opinions
955-956 (1975) (like court-appointed lawyer, private counsel
"ethically, should not clog the courts with frivolous motions or
appeals").
See also Nickols v. Gagnon, 454 F.2d 467, 472
(CA7 1971).
[
Footnote 15]
See ABA Standards for Criminal Justice, Commentary to
4-3.9 (2d ed.1980) (noting that lawyers assigned to indigent
prisoners are often put under pressure to "engage in dilatory or
frivolous tactics").
[
Footnote 16]
See Iowa Code, Ch. 336A (1981). A public defender
appointed pursuant to the state statute is directed to "prosecute
any appeals or other remedies before or after conviction that he
considers to be in the interest of justice." § 336 A. 6.
[
Footnote 17]
The view is unfortunate. Our adversary system functions best
when a lawyer enjoys the wholehearted confidence of his client. But
confidence will not be improved by creating a disincentive for the
States to provide postconviction assistance to indigent prisoners.
To impose § 1983 liability for a lawyer's performance of
traditional functions as counsel to a criminal defendant would have
precisely that effect.
[
Footnote 18]
In addition to possible relief under state tort law, an indigent
prisoner retains the right to initiate state and federal habeas
corpus proceedings. For an innocent prisoner wrongly incarcerated
as the result of ineffective or malicious counsel, this normally is
the most important form of judicial relief.
[
Footnote 19]
We do not disturb the theory of cases, brought under 18 U.S.C. §
242, in which public defenders have been prosecuted for extorting
payment from clients' friends or relatives "under color of . . .
law. . . ."
See, e.g., United States v. Senak, 477 F.2d
304 (CA7),
cert. denied, 414 U.S. 856 (1973).
CHIEF JUSTICE BURGER, concurring.
I join the Court's opinion, but it is important to emphasize
that, in providing counsel for an accused, the governmental
participation is very limited. Under
Gideon v. Wainwright,
372 U. S. 335
(1963), and
Argersinger v. Hamlin, 407 U. S.
25 (1972), the government undertakes only to provide a
professionally qualified advocate wholly independent of the
government. It is the independence from governmental control as to
how the assigned task is to e performed that is crucial. The
advocate, as an officer of the court which issued the commission to
practice, owes an obligation to the court to repudiate any external
effort to direct how the obligations to the client are to be
carried out. The obligations owed by the attorney to the client are
defined by the professional codes, not by the governmental entity
from which the defense advocate's compensation is derived.
Disciplinary Rule 5-107(B) of the ABA Code of Professional
Responsibility
* succinctly
states the rule:
Page 454 U. S. 328
"(B) A lawyer shall not permit a person who recommends, employs,
or pays him to render legal services for another to direct or
regulate his professional judgment in rendering such legal
services."
Moreover, it is elementary that every advocate has an obligation
to eschew proceedings considered to be professionally improper or
irresponsible. Once counsel in this case reached a considered
judgment on the merits of the claim sought to be put forward, her
actions were consistent with the highest traditions of the Bar.
*
See, e.g., ABA Code Of Professional Responsibility,
Canon 5 (1976): "A Lawyer Should Exercise Independent Professional
Judgment on Behalf of a Client." Ethical Consideration 5-1 explains
this Canon:
"The professional judgment of a lawyer should be exercised,
within the bounds of the law, solely for the benefit of his client
and free of compromising influences and loyalties. Neither his
personal interests, the interests of other clients, nor the desires
of third persons should be permitted to dilute his loyalty to his
client."
See also ABA Standards for Criminal Justice, The
Prosecution Function, Ch. 3, The Defense Function, Ch. 4 (2d
ed.1980).
JUSTICE BLACKMUN, dissenting.
One perhaps should be particularly circumspect when he finds
himself in solitary dissent.
See Commissioner v. "Americans
United" Inc., 416 U. S. 752,
416 U. S. 763
(1974) (dissenting opinion). On careful reflection, however, I am
convinced that my position is a valid one, and I therefore set
forth my views in opposition to those of the Court.
----------
When a full-time state employee, working in an office fully
funded and extensively regulated by the State and acting to fulfill
a state obligation, violates a person's constitutional rights, the
Court consistently has held that the employee acts "under color of"
state law, within the meaning and reach of 42 U.S.C. § 1983.
Because I conclude that the Court's decision in this case is
contrary to its prior rulings on the meaning of "under color of"
state law, and because the Court charts new territory by adopting a
functional test in determining liability under the statute, I
respectfully dissent.
I
The Court holds for the first time today that a government
official's "employment relationship" is no more than a "relevant
factor" in determining whether he acts under color of state law
within the meaning of § 1983.
Ante at
454 U. S. 321.
Only
Page 454 U. S. 329
last Term, in
Parratt v. Taylor, 451 U.
S. 527 (1981), the Court noted that defendant prison
officials unquestionably satisfied the "under color of state law"
requirement because they "were, after all, state employees in
positions of considerable authority."
Id. at
451 U. S.
535-536. Thus began, and ended, the Court's discussion
of the "color of law" question in that case. As in
Taylor,
the county employee sued in this action presumptively acts under
color of state law.
See also Flagg Bros., Inc. v. Brooks,
436 U. S. 149,
436 U. S. 157,
n. 5 (1978).
The definition of "under color of" state law relied upon by the
Court here and articulated in
United States v. Classic,
313 U. S. 299
(1941), requires that the defendants in a § 1983 action have
committed the challenged acts "in the course of their performance
of duties," and have misused power "possessed by virtue of state
law and made possible only because the wrongdoer is clothed with
the authority of state law. . . ."
Id. at
313 U. S.
325-326.
See also Screws v. United States,
325 U. S. 91,
325 U. S. 110
(1945) (plurality opinion).
Respondent's allegations place this case squarely within both
components of that definition. Respondent challenges action taken
by petitioner Shepard, a full-time county employee, while acting in
her official capacity and while exercising her responsibilities
pursuant to Iowa law.
See generally Iowa Code §§ 336 A.
3.2, 336 A. 6 (1981). The Court implicitly concedes that the
Offender Advocate's assignment of Shepard to handle respondent's
appeal was action under color of law. But the Court then fails to
recognize that it was by virtue of that assignment that Shepard had
the authority to represent respondent and to seek permission to
withdraw as his counsel, thereby allegedly violating his
constitutional rights. The authority of a privately retained
attorney to represent his clients is derived from the client's
selection of the lawyer. A public defender's power, however, is
possessed by virtue of the State's selection of the attorney and
his official employment.
Page 454 U. S. 330
The Court insists that public defenders, unlike other state
employees, are free from state control because they are not subject
to administrative direction -- both because ethical standards
require that their professional judgment not be sacrificed to the
interests of their employers and because the State is obligated to
provide indigent defendants with independent advocates. [
Footnote 2/1] This distinction ignores both
precedent and reality. The Court long has held that a state
official acts under color of law when the State does not authorize,
or even know of, his conduct.
See, e.g., Adickes v. S. H. Kress
& Co., 398 U. S. 144,
398 U. S. 152
(1970);
Monroe v. Pape, 365 U. S. 167
(1961). That the State did not instruct Shepard to withdraw from
respondent's case is therefore irrelevant to the question whether
she acted under color of state law in so doing.
Moreover, the present case is indistinguishable from
Estelle
v. Gamble, 429 U. S. 97
(1976). There the Court held that a prison doctor's deliberate
indifference to a prisoner's medical needs is prohibited by the
Eighth Amendment, and may be the subject of a § 1983 claim. The
prisoner's § 1983
Page 454 U. S. 331
complaint in
Gamble stated claims against Dr. Gray in
his capacity both as medical director for the Texas Department of
Corrections and as treating physician. Gray was sued because he
allegedly had given the plaintiff substandard medical care -- the
doctor's duty to the public and his custodial and supervisory
functions were not at issue. [
Footnote
2/2] If the Court had determined that Gray acted under color of
state law only in his capacity as a custodian and administrator, it
would have dismissed the claims against him for want of subject
matter jurisdiction, rather than on the merits.
The Court today holds that a public defender cannot act under
color of state law because of his independent ethical obligations
to his client. Yet
Gamble cannot be distinguished on this
ground. An individual physician has a professional and ethical
obligation to his patient just as an attorney has to his client.
Like a public defender, an institutional doctor's responsibilities
to a patient may conflict with institutional policies and
practices. Moreover, Dr. Gray was fulfilling the State's duty to
supply medical care to prison inmates; similarly, the public
defender is dedicated to satisfying the State's obligation to
provide representation to indigent defendants. Finally, like
respondent, who had no say in the selection of Shepard as his
attorney, inmate Gamble had no role in the choice of Gray as his
doctor . The
Gamble Court did not find that color of state
law evaporated in the face of a professional's independent ethical
obligations. I cannot see why this case is different.
As is demonstrated by the pervasive involvement of the county in
the operations of the Offender Advocate's Office,
Page 454 U. S. 332
the Court, in my view, unduly minimizes the influence that the
government actually has over the public defender. The public
defender is not merely paid by the county; he is totally dependent
financially on the County Board of Supervisors, which fixes the
compensation for the public defender and his staff and provides the
office with equipment and supplies.
See Iowa Code §§ 336
A. 5, 336 A. 9 (1981).
The Board likewise is statutorily empowered to determine
"indigency" and to prescribe the number of assistant attorneys and
other staff members considered necessary for the public defender.
See §§ 336 A. 4, 336 A. 5. The county's control over the
size of and funding for the public defender's office, as well as
over the number of potential clients, effectively dictates the size
of an individual attorney's caseload and influences substantially
the amount of time the attorney is able to devote to each case. The
public defender's discretion in handling individual cases -- and
therefore his ability to provide effective assistance to his
clients -- is circumscribed to an extent not experienced by
privately retained attorneys.
See, e.g., Robinson v.
Bergstrom, 579 F.2d 401, 402-403 (CA7 1978) (public defender
delayed five and one-half years in filing appellate brief because
of "an error in his judgment regarding his caseload," which was 600
to 900 cases per year). Similarly, authority over the appointment
of the public defender and his staff,
see Iowa Code §§ 336
A. 3, 336 A. 5 (1981), gives the State substantial influence over
the quality of the representation indigents receive.
In addition, the public defender is directed to file an annual
report with the judges of the district court of any county he
serves, the State's Attorney General, and each county's Board of
Supervisors, setting forth in detail all cases handled by the
defender's office during the preceding year. § 336 A. 8. This
requirement suggests that the government has some supervisory
control over the public defender's office, or at least that the
public defender will be wary of antagonizing the officials to whom
he must report, and to
Page 454 U. S. 333
whom he owes his appointment and the very existence of the
office.
See §§ 336 A. 3, 336 A. 1. And surely the public
defender's staff must conform to whatever policies and regulations
the office or the State imposes, including those aimed at ensuring
the effectiveness of representation. In this case, for example,
while the county may not have directed petitioner Shepard to
withdraw from respondent's case, [
Footnote 2/3] it certainly could have established
general guidelines describing the factors a public defender should
consider in determining which appeals are frivolous, and the proper
treatment of such appeals. [
Footnote
2/4]
On the basis of the Court's opinion in
Estelle v.
Gamble, 429 U. S. 97
(1976), and the county's pervasive involvement with the Offender
Advocate's Office in this case, I necessarily conclude that the
presumption that a state employee acts
Page 454 U. S. 334
under color of state law when exercising his official duties is
not overridden by the public defender's ethical obligations to his
client. [
Footnote 2/5]
II
Although holding that petitioner Shepard may not be held liable
under § 1983 for withdrawing from respondent's appeal, the Court
limits its ruling to cases where the public defender performs "a
lawyer's traditional functions as counsel to a defendant in a
criminal proceeding."
Ante at
454 U. S. 325.
The Court appears to concede that a public defender may act under
color of state law when performing unspecified administrative and
investigative functions, or even when acting as an advocate -- if
his conduct is "nontraditional," or if the plaintiff pleads and
proves that the State influenced the attorney's representation.
See ante at
454 U. S. 325,
and n.19, and
454 U. S. 322.
These attempts to draw distinctions based on function are
unconvincing.
Page 454 U. S. 335
The Court never before has held that a government employee acts
under color of state law while performing some of his official
duties but not while performing others. The Court drew no such
distinctions in
Estelle v. Gamble, supra, although it
could have adopted the Court's approach today and held that an
institutional physician acts under color of state law when acting
in his custodial and administrative roles, but not when treating a
patient. I can only conclude that the Court creates this artificial
distinction in order to avoid a conflict with
Branti v.
Finkel, 445 U. S. 507
(1980), where the Court did not pause to question whether the
defendant public defender acted under color of state law.
Imbler v. Pachtman, 424 U. S. 409
(1976), cited by the Court,
ante at
454 U. S. 325,
does not support such line-drawing. Based on policy considerations
that are inapplicable here,
see 454
U.S. 312fn2/8|>n. 8,
infra, the Court held in
Imbler that the prosecutor enjoys absolute immunity for
actions taken in his role as an advocate. The Court refused to
decide, however, whether the same policies require immunity for
prosecutors acting in their administrative or investigative roles.
Not only did the
Imbler Court therefore fail to endorse
the functional test adopted here, but it pointed to the
difficulties it foresaw in implementing such a test.
See
424 U.S. at
424 U. S. 431,
n. 33.
Page 454 U. S. 336
Moreover, the question of immunity -- what type of affirmative
defense is to be afforded a state official sued under § 1983 -- is
completely different from the issue whether an employee acts under
color of state law -- a determination that goes to a federal
court's subject matter jurisdiction over a complaint. If a
defendant does not act under color of state law, a federal court
has no power to entertain a § 1983 complaint against him. The
immunity doctrine, which is based on common law traditions and
policy considerations, is a defense that must be pleaded, and is
not relevant to a court's power to consider the case. Even
officials protected by absolute immunity act under color of state
law, and
Imbler did not indicate to the contrary; in fact,
absolute immunity protects a prosecutor from § 1983 liability only
as long as his actions are within the scope of the immunity.
See Imbler, 424 U.S. at
424 U. S. 419,
n. 13. The Court nowhere suggested in
Imbler that the
functional test could properly be used in any other context.
The Court also disclaims any intent to disturb cases in which
public defenders have been prosecuted under the criminal
counterpart of § 1983, 18 U.S.C. § 242, for extorting payment from
clients' friends or relatives,
ante at
454 U. S. 325,
n.19, citing
United States v. Senak, 477 F.2d 304 (CA7),
cert. denied, 414 U.S. 856 (1973), apparently because the
Court does not consider such conduct a "traditional" function of an
attorney. [
Footnote 2/6] Yet the
Court of Appeals' holding in
Senak that the attorney acted
under color of law is inconsistent with the
Page 454 U. S. 337
Court's line-drawing here. [
Footnote
2/7] As the final loophole, the Court apparently leaves open
the possibility that an indigent defendant could plead and prove
that the State so influenced the public defender assigned to his
case as to make the public defender liable under § 1983.
See
ante at
454 U. S. 322.
What type of state intervention is sufficient, and how a plaintiff
is supposed to allege such facts before discovery, are not
specified.
In essence, the Court appears to be holding a public defender
exempt from § 1983 liability only when the alleged injury is
ineffective assistance of counsel. Not only is it disturbing to see
the Court adopt a hierarchy of constitutional rights for purposes
of § 1983 actions, but such an approach will be extremely difficult
to implement. I envision the Court's functional analysis as having
one of two results -- both, in my view, unfortunate. If the federal
courts in effect adopt a
per se rule and dismiss all §
1983 complaints against public defenders, the most egregious
behavior by a public defender, even if unquestionably the result of
pressures by the State, will not be cognizable under § 1983.
Alternatively, the courts may attempt diligently to implement the
Court's ruling and dismiss only those § 1983 claims based on the
public defender's "traditional" functions as an advocate. The
outcome then, I fear, will be lengthy and involved hearings on the
merits to determine whether the court has subject matter
jurisdiction -- the very result the Court wishes to avoid.
III
I am sympathetic with the Court's desire to protect public
defenders, who represent indigent defendants in good faith, from a
§ 1983 suit by every dissatisfied client. But the Court's concern
for public defender programs -- and its seeming hostility to the
merits of respondent's claims,
see ante at
454 U. S.
323-324, and n. 17 -- do not justify the approach taken
by the
Page 454 U. S. 338
Court today. To recognize that public defenders act under color
of state law would not transform every legal malpractice into a
constitutional violation.
Cf. Estelle v. Gamble, 429 U.S.
at
429 U. S.
105-106. Presumably, some immunity would be provided
public defenders sued under § 1983. [
Footnote 2/8] The Court always has seen fit before to
rely on immunity and the procedures available for dismissing
meritless complaints in order to protect state officials.
See,
e.g., Butz v. Economou, 438 U. S. 478,
438 U. S.
507-508 (1978);
cf. Ferri v. Ackerman,
444 U. S. 193,
444 U. S. 200,
n. 17 (1979). I would do the same here.
I would affirm the judgment of the Court of Appeals.
[
Footnote 2/1]
The Court also says that a public defender's ethical duties and
obligations are the same as those of a privately retained lawyer,
and concludes that the public defender serves "essentially a
private function . . . for which state office and authority are not
needed."
Ante at
454 U. S. 319.
The fact that a state official's role is parallel to one in the
private sector, however, has never before deterred the Court from
holding that the former is action under color of state law. Section
1983 is meant to proscribe certain actions by state officials even
though identical conduct by private persons is not included within
the statute's scope.
Cf. Estelle v. Gamble, 429 U. S.
97 (1976);
see also Griffin v. Maryland,
378 U. S. 130,
378 U. S. 135
(1964) ("If an individual is possessed of state authority and
purports to act under that authority, his action is state action.
It is irrelevant that he might have taken the same action had he
acted in a purely private capacity . . ."). Although
Griffin involved "state action" under the Fourteenth
Amendment, "state action" and "under color of state law" have
consistently been treated as incorporating identical requirements.
See 454
U.S. 312fn2/6|>n. 6,
infra.
[
Footnote 2/2]
Similarly, in
O'Connor v. Donaldson, 422 U.
S. 563 (1975), the defendant, a psychiatrist and
superintendent of a state mental hospital, was not sued for actions
taken pursuant to his responsibilities to protect the public; the
evidence clearly showed that the plaintiff was hospitalized for
reasons other than dangerousness to himself and others.
See
id. at
422 U. S.
567-568,
422 U. S. 574,
n. 9.
[
Footnote 2/3]
Reasoning that § 1983 claims may not be based on the doctrine of
respondeat superior, the Court concludes that respondent
has not stated a claim against the Offender Advocate, Polk County,
or the County Board of Supervisors.
See ante at
454 U. S.
325-327. I agree with the Court of Appeals, however,
that respondent did allege that these defendants had "established
and layed [
sic] out the ground rules" for the public
defender's office and had "authorize[d] [petitioner Shepard] to act
in the manner prescribed in [the] complaint. . . ." App. 5.
Respondent also alleged that other public defenders in the Offender
Advocate's Office had acted in the same manner as had Shepard, and
he challenged the "process" by which the office represented
indigents.
Id. at 13. Although respondent did not point to
any particular official policy pursuant to which Shepard had acted
in withdrawing from his case, his general allegations of the
existence of such a policy, "however inartfully pleaded, are
sufficient to call for the opportunity to offer supporting
evidence."
Haines v. Kerner, 404 U.
S. 519,
404 U. S. 520
(1972). If respondent is unable to substantiate his claims, the
complaint, of course, may be dismissed on a motion for summary
judgment.
[
Footnote 2/4]
This pervasive state control over public defenders distinguishes
them from court-appointed attorneys, who are not state officials,
who have control over their own caseloads and representations, who
depend on the State only for a fee, and with whom the State has no
real day-to-day involvement.
[
Footnote 2/5]
Although I find the Court's precedents on the definition of
"under color of" state law persuasive here, I also draw support
from the Court's discussions of state action under the Fourteenth
Amendment. I find no basis for the Court's intimation,
ante at
454 U. S. 322,
n. 12, that the two doctrines incorporate different requirements.
See United States v. Price, 383 U.
S. 787,
383 U. S. 794,
n. 7 (1966). To the extent that the Court has analyzed the two
concepts separately, it has done so in § 1983 suits against private
actors. In
Flagg Bros., Inc. v. Brooks, 436 U.
S. 149,
436 U. S. 157,
n. 5 (1978), the Court observed:
"Of course, where the defendant is a public official, the two
elements of a § 1983 action merge."
"The involvement of a state official . . . plainly provides the
state action essential to show a direct violation of petitioner's
Fourteenth Amendment . . . rights, whether or not the actions of
the [officer] were officially authorized, or lawful."
"
Adickes v. S. H. Kress & Co., 398 U. S.
144,
398 U. S. 152 (1970)
(citations omitted)."
(Ellipses in original.)
The principles articulated in
Burton v. Wilmington Parking
Authority, 365 U. S. 715
(1961), for discerning state action in the conduct of a private
party are therefore helpful by way of analogy. First, the public
defender's office "constitute[s] a physically and financially
integral and, indeed, indispensable part of the State's plan,"
id. at
365 U. S.
723-724, to fulfill its constitutional obligation to
provide representation to indigents. Second, the relationship
between the State and the public defender is a symbiotic one: the
State is able to satisfy its responsibility to supply counsel to
defendants, and the public defender is gainfully employed. Finally,
the State is responsible for the public defender's office, and can
attempt to ensure that clients receive effective assistance of
counsel, for example, by hiring qualified personnel, providing
sufficient funding, and enforcing strict standards of competence.
In cases of ineffective assistance by public defenders, then, it
may be said that the State
"has not only made itself a party to the [representation], but
has elected to place its power, property and prestige behind [the
public defender's action]. The State has so far insinuated itself
into a position of interdependence with [the attorney] that it must
be recognized as a joint participant in the challenged activity. .
. ."
Id. at
365 U. S.
725.
[
Footnote 2/6]
Again, the Court's hand is forced somewhat by precedent -- even
those officials afforded absolute immunity from civil damages under
§ 1983 are susceptible to prosecution under § 242 for the willful
violation of civil rights.
See Imbler v. Pachtman,
424 U. S. 409,
424 U. S. 429
(1976). The Court has consistently held that the two provisions
incorporate the same "under color of state law" requirement.
See, e.g., Adickes v. S. H. Kress & Co., 398 U.
S. 144,
398 U. S. 152,
n. 7 (1970);
United States v. Price, 383 U.S. at
383 U. S. 794,
n. 7.
[
Footnote 2/7]
In
Senak, the Court of Appeals held that a public
defender's demand for compensation from a client was made
"ostensibly by virtue of [the attorney's] appointment
backed by
the power of the state,'" and that his official position "gave him
the opportunity to make the demands and clothed him with the
authority of the state in so doing." 477 F.2d at 308. Similarly, in
this case, petitioner Shepard's authority to withdraw from
respondent's case was derived from her "appointment `backed by the
power of the state"'; her official position "gave her the
opportunity" to act so as allegedly to violate respondent's
constitutional rights.
[
Footnote 2/8]
I do not discuss this issue in detail because the Court does not
reach it, but I assume that public defenders should be afforded
qualified immunity. Absolute immunity has been extended only to
those in positions that have a common law history of immunity.
See, e.g., Pierson v. Ray, 386 U.
S. 547,
386 U. S.
554-555 (1967). Moreover, public defenders' jobs do not
subject them to conflicting responsibilities to a number of
constituencies, so that absolute immunity is necessary to ensure
principled decisionmaking; in fact, the threat of § 1983 claims by
dissatisfied clients may provide additional incentive for competent
performance of a public defender's duties.
See Ferri v.
Ackerman, 444 U. S. 193,
444 U. S.
203-204 (1979).