understand the significance of Will v. Michigan Department
of State Police, some background is helpful. The Eleventh
Amendment, as interpreted in Hans v. Louisiana,
generally divests federal courts of jurisdiction of suits against a
state, even if that suit is based on a federal statute. Plaintiffs
seeking prospective relief (e.g., injunctions to prevent future
constitutional violations) can avoid this ban by suing the relevant
state office holders in their official capacities. But this is no
help to someone who wants retroactive monetary relief such as damages.
Fitzpatrick v. Bitzer and subsequent cases, the
Court recognized that Congress could abrogate a state's Eleventh
Amendment protection by exercising its powers under the Fourteenth
Amendment so long as it did so sufficiently explicitly. But in
Quern v. Jordan, the Court held that
§ 1983 was not
sufficiently explicit, thus closing the federal courts' doors § 1983
seeking damages from states.
Plaintiffs hoped that one
door remained open. Since the Eleventh Amendment was a restriction
solely on federal court jurisdiction, it might
be possible to bring such suits in state courts—particularly
if the state had waived any sovereign immunity it had under state law.
The argument seemed plausible: the Eleventh Amendment posed no barrier
to state court jurisdiction. Like local governmental bodies,
states were entities; and the Court had held that local governments were
suable "persons" within the meaning of
Therefore, the argument went, states (or their officials sued in their
official capacities) should also be considered "persons"
who could be sued so long as the suit was filed in state court and
so long as the official policy requirements of Monell
In Will v.
Michigan Department of State Police, the Court
rejected this argument and closed the final door. Although
Congress had the power to authorize
§ 1983 damage suits against states (at least in
state courts), the Court concluded that Congress had not exercised that
power. As a result, such suits are now barred in both federal and
story of Will v. Michigan
Department of State Police begins in the depths of the
McCarthy era. In 1950, the Michigan legislature passed "Act
40" (click the thumbnail at right) which required the Michigan Department of State police to collect
information on groups and individuals seen as advocating subversive
activities. The "Subversive Activities Investigation Division"
(generally know as the Michigan Red Squad) was authorized to maintain
files on perceived subversives and provide information about such
individuals to state agency personnel officers. The Red Squad
squad used this authority for more than a quarter of a century to
compile files on political activists including members and leaders of
labor, civil rights and anti-war groups. In 1976, Michigan
courts declared Act 40 unconstitutional, ordered the state
police to shut down the Red Squad, and created a process for its targets
to obtain copies of their Red Squad files.
Beginning in 1969, petitioner Ray Will worked for the state in various
positions and regularly moved up the bureaucratic ladder eventually
becoming an entry level supervisor. In 1973, he sought another
promotion and applied for positions in a number of state agencies
including the State Police. He was ranked number 2 on the
promotion register but was not given the position even though the
highest ranked candidate withdrew. At that time, he did not
suspect why he lost the position.
The petitioner Ray Will was not a political activist, was never
investigated by the Red Squad, and had no Red Squad file. His brother
Charles, on the other hand, had been involved in anti-Vietnam
War protests while in college; and the Red Squad did maintain a file on
Charles. After the Michigan courts ordered the release of the Red
Squad's files, Ray Will learned that the Squad had torpedoed his
1973 promotion by giving his brother Charles's file to the
Ray Will's situation appeared to be a paradigmatic case in which a
governmental entity would be liable under Monell:
his injury was the result of admittedly unconstitutional conduct that
was explicitly authorized by state statute. The difficulty was
that the governmental body was not a city or school district but the
State of Michigan itself—a
defendant that could not be sued for damages in federal court.
(See Will's Legal Significance.)
As a result, Will sued for damages in state court. After a long
and complex series of proceedings, the State Supreme Court held that
neither the State nor its officials sued in their official capacities
were persons within the meaning of § 1983, thus denying Will all
relief. Will challenged this ruling in the Supreme Court, but the
Supreme Court affirmed.