Appeal from the United States District Court for the Eastern District of Illinois, East St. Louis Division. No. CV 73-85-E - James L. Foreman, Judge.
Cummings, Pell, and Wood, Circuit Judges.
Earl Robinson appeals from an order dismissing his civil rights complaint brought under 42 U.S.C. § 1983. The district court found that the defendant was not acting under color of state law when he allegedly violated the constitutional rights of the plaintiff. Accordingly, no jurisdiction was found to exist under § 1983. Although defendant-appellee appeared and testified in the district court, he has not filed a responsive pleading in this appeal. Therefore the appeal, by order of this Court,*fn1 is considered without oral argument pursuant to Circuit Rule 8(c) and Rule 2, Fed. R. App. P.
Earl Robinson was convicted of murder on September 27, 1968, by a jury in Champaign County, Illinois. At trial he was represented by the defendant John C. Bergstrom. Bergstrom, at that time, acted as a part-time Assistant Public Defender for Champaign County, while also carrying on a private practice. He was compensated for his duties as a Public Defender. There was apparently no full-time defender office in Champaign County at this time.
Bergstrom was appointed, in his capacity as Assistant Public Defender, to represent Robinson on appeal. From the time of his appointment until January of 1973 Bergstrom did little, other than file notice of appeal and designate the trial record, to prosecute Robinson's appeal. Bergstrom apparently visited Robinson in prison twice in 1972. Bergstrom testified that the primary reason for the delay was due to an error in his judgment regarding his caseload. He also testified that he carried a caseload of from six to nine hundred cases per year during this time. Apparently after Bergstrom resigned his position in 1973 Champaign County appointed a full-time public defender. In 1973 an appellate brief was ultimately prepared by the then newly established Illinois State Appellate Defender's Office. That brief was filed in May of 1974. On November 27, 1974, plaintiff's appeal was denied.
Robinson contends that because of the delay of five and one-half years between conviction and the filing of an appellate brief he was denied access to various prison programs. He also argues that he was prevented from filing a federal habeas corpus petition because of failure to exhaust his state remedies.
In early 1973, prior to the appointment of the State Appellate Defender, Robinson filed a section 1983 suit alleging that Bergstrom, acting under color of state law, misused the power invested in him by state law to deprive Robinson of rights under the Sixth and Fourteenth Amendments to the Constitution. The district court dismissed the suit for want of subject matter jurisdiction. On appeal, this Court vacated and remanded the cause for a hearing, stating that it was arguable that a public defender acts under color of state law and therefore subject matter jurisdiction may exist, citing John v. Hurt, 489 F.2d 786 (7th Cir. 1973). Robinson v. Bergstrom, 492 F.2d 1246 (7th Cir. 1974) (Unpublished Order).
On remand, both the plaintiff and defendant appeared and testified. The district court entered a memorandum opinion and order dismissing the action on the basis that the defendant was not acting under color of state law when he represented plaintiff as a public defender. The plaintiff appeals from that order.
It may appear appropriate to consider initially whether the defendant, as a public defender, is immune from a section 1983 damage claim for acts done in the performance of his judicial function as a public defender. Indeed, it is the law of three of the federal circuits that such actions be dismissed on this basis. Miller v. Barilla, 549 F.2d 648(9th Cir. 1977); Minns v. Paul, 542 F.2d 899 (4th Cir. 1976); Brown v. Joseph, 463 F.2d 1046 (3d Cir. 1972), cert. denied, 412 U.S. 950, 37 L. Ed. 2d 1003, 93 S. Ct. 3015. The Tenth Circuit Court of Appeals has taken the position that a public defender, in representing an indigent, does not act under color of state law and therefore the federal court must dismiss the action. Espinoza v. Rogers, 470 F.2d 1174 (10th Cir. 1972). Various district courts have also ruled that a public defender does not act under color of state law and have therefore dismissed the complaint for lack of jurisdiction. See, e.g., Clark v. Brandom, 415 F. Supp. 883 (W.D.Mo. 1976); Berryman v. Shuster, 405 F. Supp. 1346 (W.D.Okla. 1975); Sanchez v. Murphy, 385 F. Supp. 1362 (D.Nev. 1974); Hill v. Lewis, 361 F. Supp. 813 (E.D.Ark. 1973); U.S. ex rel. Wood v. Blacker, 335 F. Supp. 43 (D.N.J. 1971).
Apparently this Circuit has had only one occasion to consider the section 1983 liability of a public defender. In John v. Hurt, 489 F.2d 786 (7th Cir. 1973) (per curiam), an indigent state prisoner filed a pro se complaint alleging that the Public Defender of Macon County, Illinois, had deprived him of his Sixth Amendment rights. The district court had dismissed the action, holding that the defendant could not be said to have acted under color of state law. On appeal, this Court did not specifically rule on the color of state law question. Rather, it was there held that
assuming . . . that defendant could be deemed to be acting under color of state law . . . we think that, as a matter of law, defendant is immune from liability for damages, and plaintiff's complaint must fail. Id. at 788.
The immunity discussed by this Court in John was held to be a qualified immunity, likened to that of state prosecutors.*fn2
Although John possibly could have formed the basis of the district court's holding, the court ruled on the basis of state action.*fn3 Upon analysis, it was proper to rule on the color of state law question prior to consideration of immunity. While the John court, as well as the holdings in Miller v. Barilla, supra, and Minns v. Paul, supra, imply the concept of alternative election of disposition of such a case, such an election is not correct.*fn4
There appears to be no question that the requirement of "state action" in a section 1983 claim is an essential jurisdictional predicate. Cannon v. Univ. of Chicago, 559 F.2d 1063 (7th Cir. 1976); Braden v. Univ. of Pittsburgh, 552 F.2d 948 (3rd Cir. 1977) (en banc). Accordingly, where state action is found lacking, the section 1983 complaint is properly dismissed for lack of subject matter jurisdiction. Cannon, supra. Alternatively a question of whether a defendant is immune, either qualifiedly or absolutely, is not a jurisdictional issue. Rather, immunity is an affirmative defense which may defeat the section 1983 claim once that subject matter jurisdiction has been established. See, e.g., Stump v. Sparkman, 435 U.S. 349, 98 S. Ct. 1099, 55 L. Ed. 2d 331, 46 U.S.L.W. 4253 (1978); Larsen v. Gibson, 267 F.2d 386 (9th Cir. 1959).*fn5
It is elementary that jurisdiction is a threshold issue, whether or not raised by a party, which must be satisfied prior to the merits. Haley v. Childers, 314 F.2d 610 (8th Cir. 1963).
It is therefore obvious that the state action question, a requirement for subject matter jurisdiction, must be weighed ...