An article in yesterday's editions of The Washington Poston the uses of the Civil Rights Act of 1871 should have referred to Section 1983 of the act, not Title 1983.
In 1871 Congress passed a civil rights act to force stategovernments in the South to protect newly emancipated blacks. More than a century later that act has been transformed -- some say trivialized -- into the growth industry of the federal courts, and is driving state and local officials up the wall.
Consider, for example, Bert Taylor's mail order hobby kits. Taylor, a Nebraska prison inmate, sued prison officials under the act when he failed to receive the kits after they had arrived in the prison mails. a federal judge found in his favor and awarded him the sum of $23.57.
In Newport, R.i., for another example, a concert promoter using the law won $200,000 in punitive damages from the city aftera city council controversy over a Blood, Sweat and Tears concert caused him to lose thousands of dollars in ticket sales.
Both these cases are now before the U.S. Supreme Court, which local officials hope will examine what has become ofthe act. The law, specifically its Title 1983 allowing damage suits against government authorities for violations of federal rights and laws, is still used mostly -- in both North and South -- to protect minorities and others from gross acts of brutality and discrimination.
But it is also used to obtain more toilet paper from prison wardens, to challenge hair-length codes in schools, and to keep welfare paymentscoming. In Pennsylvania, a harness racer accused of "inconsistent driving" recently invoked it to protect his stall privileges.
It is invoked so often that suits under title 1983 now constitute, by one estimate, up to a quarter of the private suits filed in the federal courts. Since the mid-1960s, the number of such suits has risen from about 300 a year to about 9,000.
While many of the suits are, indeed, substantial, University of Virginia law professor A. E. Dick Howard said in a new study for the National Governors Association, "creative litigants and their lawyers have turned virtually any grievance into a constitutional claim."
The Governors Association has formed a special committee to do something about the suits. Most governors do not quarrel with the law's application to serious rights violations. But many believe it has been overused and trivialized, costing them time, money and a further loss of authority to the federal giant. They are hoping that the Supreme Court, now considering the Blood, Sweat and Tears case and the mail-order hobby controversy, will trim its sails.
They are being opposed by civil rights lawyers and the American Civil Liberties Union. "If the states are complaining," said ACLU counsel Charles Sims, "the answer is for them not to violate the Constitution."
Title 1983 says that any person, acting under "color" of law, which means with official authority, is liable for damages and redress for deprivation of any "rights, privileges or immunities secured by the Constitution and laws. . .."
The formula for bringing suit is thus simple: If you've been injured in some way by a government or government official or by a private citizen with the help of a government official -- a sheriff, governor, mayor, city council -- and you can find something in the constitution or in a federal law applicable to your injury, you can go to court.
If youwin, a 1976 act of Congress -- thought to be partly responsible for the upsurge in these suits -- says that a judge canrequire the losing side to pay your legal fees.
Under Nebraska prison procedures, packages arriving through the mailfor prisoners are supposed to be delivered directly. If that'st not possible, the prisoner is supposed to receive notice of a package arrival so he can pick it up. Inmate Bert Taylor was in a special prison security unit, where hobby kits were not permitted, when a painting set and a "string art"kit he had ordered arrived in the mail.
When he got out of the security unit, he asked around and looked for the kits and was unable to find them. He sued for the value of thekits, using the federal law, saying his civil rights were violated.
Though $23.57 may be a lot for a prison inmate and officials did violate regulations about mail delivery, nobody on either side of Taylor's case is arguing that the thekit's disappearance represented a major case of prison abuse, or even an example of a minor matter which, when repeatedmany times, becomes serious. Taylor's lawyer said that, tohis knowledge, the Nebraska prison system has not displayeda pattern of disappearing mail. Nor does anyone contend the prison authorities did it on purpose.
It was, as the federal judge in the case ruled, a simple matter of negligence-- the kind of breach, some 25 states have told the SupremeCourt in amicus briefs, that belongs in state courts, not in the federal system. "One might better look at protecting and reaffirming the constitutional underpinnings [of Title 1983] while trying to weed out garden variety" cases, the attorney general of Hawaii told the justices.
The Supreme Court, state officials argue, has only beeen encourageing the upsurge in small-time civil rights suits. Over the past decade, it has removed prohibitions on such suits that immunized many officials from them.
Last year, in what many regard as one of the Warren Burger court's most "liberal" decisions, the justices said that a breach of any federal law, not just of constitutional protections, could be the basis for these damages suits. Local authorities now fear a rush of "civil rights" damages suits whenever a local government, for example, is alleged to have violated the Clean Air Act or the Clean Water Act or 30 or 40 other federal statutes.
Last year's ruling came in a case called Maine vs. Thiboutot.Its facts illustrate the problem. The original suit was brought by Lionel and Joline Thiboutot and their eight children, objecting to a state decision to reduce their welfare benefits. The family alleged that the reduction violated the Social Security Act, not the Constitution.
Originally, in fact, the Thiboutots' lawyers sued under a different law. After Congress passed the act allowing the award of attorney's fees in Title 1983 suits, however, the family's lawyers added a 1983 count.The original amount in dispute was about $2,500. Main officials say that the total benefit to all Maine welfare recipients as a result of the decision will be $10,000 to $20,000. The Thiboutots' lawyers are asking $136,000 in legal fees from the state.
The states are hoping that in the Blood, Sweat and Tears case, the justices will rule out imposition by judges of the heavy punitive damage awards against governments and officials. In the hobby kit case, they are asking that negligence (as oppose to purposeful-violtion) claims be eliminated.
In the view of civil rights lawyers, this is not the solution. "We worry about how far they'll go." said Alvin Bronstein, executive director of the National Prison Project, referring -- the Supreme Court. Not all prisoners have adequate protection in state law, he said, and without the civil rights law they would have no avenue of redress for the less important violations.
There are a lot of small-time civil rights suits brought by prisoners, Bronstein said, though the bulk are still important complaints about medical treatment, brutality and bad conditions.
"The solution," said Sims, of the SCLU, "is for states and cities not to violate federal law."