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David Achtenberg

Professor & Law Foundation Scholar

UMKC School of Law

Kansas City, MO 64110-2499

816-235-2382

AchtenbergD@umkc.edu





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Will v. Michigan Department of State Police

491 US 58 (1989)
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Will's Legal Significance

Will's Background Story

To 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. 

In 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 § 1983.  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 were met. 

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 state courts. 

 

The 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 hiring officials.  

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 itselfa 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.