SUPREME COURT OF THE UNITED STATES

No. 96–542

WALTER McMILLIAN, PETITIONER v. MONROE COUNTY, ALABAMA

on writ of certiorari to the united states court of appeals for the eleventh circuit

[June 2, 1997]

Justice Ginsburg, with whom Justice Stevens, Justice Souter, and Justice Breyer join, dissenting.

Petitioner Walter McMillian, convicted of capital murder, spent nearly six years on Alabama's Death Row. In 1993, the Alabama Court of Criminal Appeals determined that government officials, including the Sheriff of Monroe County, had concealed evidence of McMillian's innocence. Based on that evidence, the court overturned the conviction. The State thereafter dismissed all charges against McMillian and released him from prison.

Seeking redress for an arrest and years of incarceration in violation of his federal constitutional rights, McMillian commenced the instant action under 42 U. S. C. §1983. He named as defendants both Monroe County and the County's Sheriff, Tom Tate. McMillian alleged that Sheriff Tate withheld exculpatory evidence, generated false, inculpatory evidence, and subjected him to gross racial insults and relentless intimidation.

Sheriff Tate, it is uncontested, has "final policymaking authority" under Alabama law over matters of law enforcement in Monroe County. Our precedent instructs that, if the Sheriff makes policy for the State, Monroe County would not be accountable, under §1983, for that policy; if, on the other hand, the Sheriff acts as law enforcement policymaker for Monroe County, then the County would be answerable under §1983. See Monell v. New York City Dept. of Social Servs., 436 U. S. 658, 694 (1978).

Alabama has 67 county sheriffs, each elected, paid, and equipped locally, each with countywide, not statewide, authority. Unlike judges who work within the State's judicial hierarchy, or prosecutors who belong to a prosecutorial corps superintended by the State's Attorney General, sheriffs are not part of a state command and serve under no "State Sheriff General." The Court, nonetheless, holds that the policies set by Sheriff Tate in Monroe County, though discrete from and uncoordinated with, the policies of sheriffs in other counties, "may fairly be said to represent [Alabama] policy." See id., at 694. I disagree.

In my view, Alabama law defining the office of sheriff indicates that the sheriff acts within and for the county when setting and implementing law enforcement policy. In explaining why it concludes otherwise and deems the sheriff the State's, not the county's, policymaker, the Court leans heavily on provisions of the State's Constitution. The Court relies on the Alabama Constitution's designation of "a sheriff for each county" as a member of the State's "executive department." See Ala. Const., Art. V, §112; ante, at 5–6. In addition, the Court points to two 1901 amendments relating to the impeachment of sheriffs. See ante, at 6–8. These measures are the strongest supports for the Court's classification of county sheriffs as state actors. They are not sturdy enough, however, to justify the Court's holding that county sheriffs are state officials.

Alabama law does not consistently designate sheriffs as "executive department" officers; instead, Alabama law in several instances refers to sheriffs as county officials. See In re Opinion of the Justices, 225 Ala. 359, 143 So. 345 (1932) (sheriffs are county officers for purposes of 1912 constitutional amendment regarding county officers' salaries); Ala. Code §36–3–4(a) (1991) (sheriff, a "county officer," shall be elected to four-year term); Ala. Code §36–22–16(a) (1991) (sheriffs shall be compensated out of the county treasury in same manner as "other county employees"). Moreover, designations Alabama attaches to sheriffs in its laws and decisions are not dispositive of a court's assessment of Sheriff Tate's status for §1983 purposes. Cf. Regents of Univ. of Cal. v. Doe, 519 U. S. ___, ___, n. 5 (1997) (slip op., at 4–5, n. 5); Howlett v. Rose, 496 U. S. 356, 376 (1990) (defenses to §1983 actions are questions of federal law); Martinez v. California, 444 U. S. 277, 284, and n. 8 (1980) (state law granting immunity to parole officers does not control question whether such officers have immunity under §1983). If a State's designation sufficed to answer the federal question at issue, "States would then be free to nullify for their own people the legislative decisions that Congress has made on behalf of all the People." Howlett, 496 U. S., at 383.

Nor are the 1901 impeachment measures secure indicators that a sheriff acts on behalf of the State, not the county. As the Court explains, the impeachment amendments were intended to provide a state check on county sheriffs in view of their glaring lapses in acquiescing to abductions and lynchings in the late 1800's. See ante, at 6–7. However, making an officer eligible for impeachment, by itself, does not change the governmental unit to which the officer belongs. See Ala. Const., Art. VII, §175 (listing numerous county officials subject to impeachment); Ala. Code §36–11–1(a) (1991) (same). And transferring impeachment proceedings from county courts to the State Supreme Court, see Ala. Const., Art. VII, §174, is sensibly seen as an acknowledgment of the power wielded by sheriffs within their own counties, and the consequent need for placement of removal authority outside a sheriff's bailiwick. Furthermore, impeachment of sheriffs is not a power reserved exclusively to state officials; "five resident taxpayers" of the sheriff's county can initiate an impeachment. See Ala. Code §36–11–6 (1991). Impeachment, in sum, provides an ultimate check on flagrant behavior, but does not serve as a tight control rein.

The prime controllers of a sheriff's service are the county residents, the people who select their sheriff at quadrennial elections. Sheriff Tate owes his position as chief law enforcement officer of Monroe County to the county residents who elected him, and who can unseat him. See Ala. Const., Art. V, §138, as amended by Amdt. No. 35 ("A sheriff shall be elected in each county by the qualified electors thereof . . . ."). On the ballot, candidates for the office of sheriff are grouped with candidates for other county offices, and are not listed with state office candidates. See Ala. Code §17–8–5 (1995).

Traditionally, Alabama sheriffs have had autonomy to formulate and execute law enforcement policy within the geographic confines of their counties. Under Alabama law, "[i]t shall be the duty of sheriffs in their respective counties . . . to ferret out crime, to apprehend and arrest criminals and . . . to secure evidence of crimes." Ala. Code §36–22–3(4) (1991) (emphasis added); see also Ala. Code §15–6–1 (1995) ("The sheriff is the principal conservator of the peace in his county, and it is his duty to suppress riots, unlawful assemblies and affrays. In the execution of such duty, he may summon to his aid as many of the men of his county as he thinks proper.") (emphasis added); §15–10–1 (sheriffs may make arrests "within their respective counties").

Monroe County pays Sheriff Tate's salary, see Ala. Code §36–22–16(a) (1991) (sheriffs shall be paid "out of the county treasury as the salaries of other county employees are paid"), and the sheriff operates out of an office provided, furnished, and equipped by the county, see §36–22–18. The obligation to fully equip the sheriff is substantial, requiring a county commission to "furnish the sheriff with the necessary quarters, books, stationery, office equipment, supplies, postage and other conveniences and equipment, including automobiles and necessary repairs, maintenance and all expenses incidental thereto." Ibid. These obligations are of practical importance, for they mean that purse strings can be pulled at the county level; a county is obliged to provide a sheriff only what is "reasonably needed for the proper and efficient conduct of the affairs of the sheriff's office," ibid. (emphasis added). How generously the sheriff will be equipped is likely to influence that officer's day to day conduct to a greater extent than the remote prospect of impeachment. See ibid.; see also Geneva Cty. Comm'n v. Tice, 578 So. 2d 1070, 1075 (Ala. 1991) (county may reasonably limit budget for overtime pay for sheriff's deputies); Ala. Code §36–22–16(a) (1991) (sheriff's salary, paid by county, may be increased "by law by general or local act"); §36–22–3(3) (sheriff must render to county treasurer a periodic written statement of moneys collected by sheriff on behalf of county).

Sheriff Tate, in short, is in vital respects a county official. Indeed, one would be hard-pressed to think of a single official who more completely represents the exercise of significant power within a county. See Pembaur v. Cincinnati, 746 F. 2d 337, 340–341 (CA6 1984) (sheriff elected by residents of county to be county's chief law enforcement officer, paid and equipped by county, is "obvious[ly]" a county official), rev'd on other grounds, 475 U. S. 469 (1986).

The Court observes that it is "most importan[t]" to its holding that Alabama sheriffs "are given complete authority to enforce the state criminal law in their counties." See ante, at 9. If the Court means to suggest that Sheriff Tate should be classified as a state actor because he is enforcing state (as opposed to county or municipal) law, the Court proves far too much. Because most criminal laws are of statewide application, relying on whose law the sheriff enforces yields an all-state categorization of sheriffs, despite the Court's recognition that such blanket classification is inappropriate. See ante, at 4–5. Sheriffs in Arkansas, Texas, and Washington, just like sheriffs in Alabama, enforce the State's law, but that does not make them policymakers for the State rather than the county. See ante, at 15, n. 10.

In emphasizing that the Monroe County Commission cannot instruct Sheriff Tate how to accomplish his law enforcement mission, see ante, at 9, the Court indirectly endorses the Eleventh Circuit's reasoning: Because under Alabama law a county commission does not possess law enforcement authority, a sheriff's law enforcement activities cannot represent county policy. See McMillian v. Johnson, 88 F. 3d 1573, 1578 (CA11 1996). There is an irony in this approach: If a county commission lacks law enforcement authority, then the sheriff becomes a state official; but if a county commission possesses such authority and directs the sheriff's activities, then the sheriff presumably would not be a final policymaker in the realm of law enforcement, see St. Louis v. Praprotnik, 485 U. S. 112, 127 (1988) (plurality).

Moreover, in determining who makes county policy, this Court has never reasoned that all policymaking authority must be vested in a single body that either exercises that power or formally delegates it to another. Few local governments would fit that rigid model. Cf. id., at 124–125 ("The States have extremely wide latitude in determining the form that local government takes . . . . [O]ne may expect to find a rich variety of ways in which the power of government is distributed among a host of different officials and official bodies."). Nor does Monell support such a constricted view of the exercise of municipal authority; there, we spoke of §1983 liability for acts by "lawmakers or by those whose edicts or acts may fairly be said to represent official policy." 436 U. S., at 694 (emphasis added). In this case, Sheriff Tate is "the county's final policymaker in the area of law enforcement, not by virtue of delegation by the county's governing body but, rather, by virtue of the office to which the sheriff has been elected." Turner v. Upton Cty., 915 F. 2d 133, 136 (CA5 1990); see also Blackburn v. Snow, 771 F. 2d 556, 571 (CA1 1985); accord, Vera v. Tue, 73 F. 3d 604, 609 (CA5 1996) ("[T]he Sheriff, an elected county official [in Texas], had equal authority to the county commissioners in that jurisdiction [so] that his actions constituted those of the county just as much as those of the commissioners."). An Alabama sheriff is a county policymaker because he independently exercises law enforcement authority for the county. In this most crucial respect, the Alabama arrangement resembles the "unique structure of county government" in Texas. See Turner, 915 F. 2d, at 136–137, cited ante, at 15, n. 10.

The Court also suggests that because the Governor can direct a sheriff to investigate a violation of law in the county, an Alabama sheriff must be a state, not a county, official. See ante, at 10 (citing Ala. Code §36–22–5 (1991)). It is worth noting that a group of county citizens can likewise trigger an investigation by the sheriff. See §36–22–6(b). The respondent, Monroe County, did not inform us whether the Governor directs county sheriffs to conduct investigations with any regularity. More important, there is no suggestion that Sheriff Tate was proceeding under the Governor's direction when Tate pursued the investigation that led to McMillian's Death Row confinement. If Sheriff Tate were acting on instruction from the Governor, this would be a very different case. But the bare possibility that a Governor might sometime direct a sheriff's law enforcement activities does not lessen the sheriff's authority, as the final county policymaker, in the general run of investigations the sheriff undertakes.

The Court's reliance on "the ancient understanding of what it has meant to be a sheriff," ante, at 14, is no more persuasive than its interpretation of Alabama law. This emphasis on the historical understanding of the office of sheriff implies, again, an all-state categorization of sheriffs throughout the Nation; but because the Court expressly disclaims such a "blunderbuss" approach, ibid., that cannot be what this history lesson is intended to convey. In England, it is true, the sheriff did perform "the king's business in the county." 1 W. Blackstone, Commentaries *339. But the English sheriff, as Blackstone described him, was far closer to the crown than his contemporary counterpart is to the central state government. While sheriffs were for a time chosen locally, "[t]his election," according to Blackstone, "was in all probability not absolutely vested in the [inhabitants of the counties], but required the royal approbation." Id., at *340. Eventually, the king chose the sheriff from a list proposed by the judges and other great officers. See id., at *340–*341.

Whatever English history may teach, "[t]hroughout U. S. history, the sheriff has remained the principal law enforcement officer in the county." G. Felkenes, The Criminal Justice System: Its Functions and Personnel 53 (1973); see id., at 52–53 (referring specifically to Alabama sheriffs). In the United States, "[i]n order to reserve control over the sheriff's department and its police functions, the people made the sheriff an elective officer." Id., at 53. It is this status as the county's law enforcement officer chosen by the county's residents that is at the root of the contemporary understanding of the sheriff as a county officer.

* * *

A sheriff locally elected, paid, and equipped, who autonomously sets and implements law enforcement policies operative within the geographic confines of a county, is ordinarily just what he seems to be: a county official. Nothing in Alabama law warrants a different conclusion. It makes scant sense to treat sheriffs' activities differently based on the presence or absence of state constitutional provisions of the limited kind Alabama has adopted.

The Court's Alabama-specific approach, however, assures that today's immediate holding is of limited reach. The Court does not appear to question that an Alabama sheriff may still be a county policymaker for some purposes, such as hiring the county's chief jailor, see Parker v. Williams, 862 F. 2d 1471, 1477–1481 (CA11 1989). And, as the Court acknowledges, under its approach sheriffs may be policymakers for certain purposes in some States and not in others. See ante, at 14–15, and n. 10. The Court's opinion does not call into question the numerous Court of Appeals decisions, some of them decades old, ranking sheriffs as county, not state, policymakers. Furthermore, the Court's recognition of the historic reasons why Alabama listed sheriffs as members of the State's "executive department," see ante, at 6–7, should discourage endeavors to insulate counties and municipalities from Monell liability by change-the-label devices. Thus, the Court's opinion, while in my view misguided, does little to alter §1983 county and municipal liability in most jurisdictions.