State Actors

I've been reading a discussion between Xrlq and Patterico about the Schiavo case. This is a very dense legal analysis that is not relevant to anyone but those two, and people who study 1983 actions as a hobby, so feel free to skip it. If you're brave or incredibly bored, continue below the fold.

They are arguing about, and Xrlq is outraged over, a little sentence tossed into the opinion of District Court judge Whittemore. (opinion here *.pdf format). Judge Whittemore stated in count nine that "Michael Schiavo and Judge Greer are not state actors." 

Xrlq is upset because of course a state court judge is a state actor! Otherwise, state court judges could go around violating our rights at will! Leaving aside that state court judges are indeed immune from suit (judicial immunity, an entirely different topic), after reading the case law involved, and based on my own knowledge from my work the last year, I think the judge ruled correctly but stated the wrong reason. Here's why: 

1. First, in the comments discussion here, Patterico and Xrlq are discussing "state action." Obviously any action taken by the state or an arm of the state is, in common parlance, a state action. You could think of it in two ways: The "state" as a political body, i.e., the state of Florida. Or you can think of it as "state" as in "the government" as in, the state may not deprive someone of life or property without due process. But "state actor" is a legal term of art, and is defined in a precise way by case law. Why do we even care who is a "state actor" anyway?

2. 1983 grants a private right of action to any individual who has had their constitutional rights violated by someone acting "under color of state law." In this case, the Schindlers argued that they had a 1983 cause of action against Judge Greer and Michael Schiavo for violating Terri's Eighth Amendment right to be free from cruel & unusual punishment. Leaving aside the frivolous nature of the argument, pointed out by Xrlq - the 8th applies to state actions towards convicted criminals - this is where Judge Whittemore tossed in that neither Michael Schiavo nor Judge Greer are state actors.  

Thus we must define who is a "state actor." The judge cited three cases: Kirtley, Harvey, and Torres.

3. If you read Kirtley and Harvey, they apply to when a private individual takes action that is so government-like that he becomes a state actor. These two cases involve a private individual who becomes a guardian, as in, court-appointed guardianship. They obviously apply to Schiavo and not Greer, so I will disregard them for this comment.

 

4. Harvey does indeed state that a county probate judge is a state actor. This is where Xrlq is correct - Judge Whittemore's ruling is directly contra to that statement, which is arguably dicta but quite possibly true.

5. Torres, however, stands for the proposition that when merely using the state courts as an instrument, during private litigation between two private parties - even if the court's orders are erroneous and violate someone's procedural due process rights - that use of the courts does not give rise to a 1983 cause of action. The question under Torres is whether Judge Greer, as a state officer, used "his authority, or the appearance thereof, outside the scope of his statutory duty."  

That's the key point: The case law states that a state court judgment CAN be a state action, but isn't necessarily. The leading case for this issue, as Torre points out, is Bottone v. Lindsley, 170 F.2d 705 (10th Cir. 1948):

It is conceivable that persons, either individually or acting in concert might so use the state judicial process as to deprive a person of his property without due process of law, or of equal protection of the laws, yet we are certain that to make out a cause of action under the Civil Rights Statutes, the state court proceedings must have been a complete nullity, with a purpose to deprive a person of his property without due process of law. To hold otherwise would open the door wide to every aggrieved litigant in a state court proceedings, and set the federal courts up as an arbiter of the correctness of every state decision. "The Fourteenth Amendment did not alter the basic relations between the States and the national government." Nor does it "assure uniformity of decision or immunity from merely erroneous action ." (internal cites omitted). 

Girard, 530 F2d 66. Let me excerpt:

"Certainly a state court judgment can be state action. … In Shelley v. Kraemer, supra, 334 U.S. at 4, the Supreme Court defined the question before it as "the validity of court enforcement of private agreements, generally described as restrictive covenants, which have as their purpose the exclusion of persons of designated race or color from the ownership or occupancy of real property." …While stating that the private restrictive agreement itself did not violate Fourteenth Amendment rights, where the purposes of the agreements were secured only by judicial enforcement, the state was a participant within the meaning of the Fourteenth Amendment. 

The posture of the present case is significantly different from the situation in Shelley, however. The contested provision in Shelley was racially discriminatory on its face. …Summarizing prior holdings dealing with the state action concept, the Supreme Court has stated that "where the impetus for the discrimination is private, the State must have 'significantly involved itself with invidious discriminations,' . . . in order for the discriminatory action to fall within the ambit of the constitutional prohibition." Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 173 (1972)." (internal cites again omitted).

 

The action at issue here wasn't unconstitutional on its face. Further, the state did not significantly involve itself with the deprivation of the individual's rights - the only state involvement is the use of the state courts as an instrument. 

So what the opinion should have said was the Judge Greer didn't use the authority of the state - his power as a judge - except within the scope of his duties as an officer of the court. The State was not used to enforce an unconstitutional provision, so there is nothing actionable under 1983. "No cause of action", NOT "no state actor." You can argue with the wisdom of these principles; I'm not taking up on behalf of them. But I do believe that is the state of the law, and thus the judge's ruling was correct even if he gave the wrong reason. 

That is a ridiculous simplification of the law at issue; I urge you to read the cited section of Torres and the cases it refers to if you'd like to clarify the issue in your own mind.

Xrlq is correct in that this would make an interesting and timely law review article. But it is a very complex area of law and I would recommend becoming very familiar with 1983 litigation before attempting it. I have been working in 1983, defending a state against torts and employment actions, for the past year, and I still get confused. There are a thousand tiny details like this. 

Also consider one other thing that the judge may have been thinking of: Sometimes people you might assume can be easily described as "state" officials or not are in fact defined as such for some purposes and not for others. For instance, in Oregon, the District Attorney is elected by county and serves the county, is paid by the county, etc. but for purposes of 1983 actions he is a state actor, for complicated legal reasons. Alas for many plaintiffs, that means he gets the state sovereign immunity in federal court. So this stuff can be pretty topsy-turvy.

I'm hoping that Xrlq can find some legal authority to prove me wrong on this one. It would indeed be a very interesting law review article. So woe unto you, dear readers who made it this far - you may be seeing more of this issue here!

Comments

[Xrlq]

I don't think that any of counts at issue were 1983 actions. As I understand them, Count 8 alleged that the state has deprived Terri Schiavo of her life without (procedural) due process, Count 9 alleged her de facto death sentence was cruel and unusual punishment, and Count 10 alleged that starving patients to death violates procedural due process. All three depended on the due process clause of the 14th Amendment, and none sought relief against Judge Greer individually. Thus, the state action issue is exactly the same in all three: did the State of Florida do this? Yet Judge Whittemore curiously ignored the state action doctrine while discussing Count, only to magically discover itfor the first time while discussing Count 9.

[Jennifer]

The fact that they are violations of constitutional rights mean de facto that they all fall under the ambit of 1983. The 14th Amendment isn't a cause of action; the cause of action is found in 1983, which is a statute allowing you to sue for violation of constitutional rights, including those applied to the states through the Due Process clause of the 14th Amendment. So it all falls under analysis of 1983 actions.

Judge Whittemore was able to dispose of Count 8 without even addressing the substantive issues, because plaintiffs were asserting a false standard had been violated, by misrepresenting the holding of the Cruzan case -- a right to die case, not right to live. So the state action doctrine didn't arise in that context because no matter what, there is no heightened standard of "clear and convincing evidence" as alleged by plaintiffs.

Again, I'm not defending the clarity of the opinion; he just tossed it out almost as an afterthought, and I think he should have written that Michael Schiavo is clearly not a state actor under the cited cases, and that there is no cause of action -- based on the state ("under color of law") depriving someone of their rights without due process -- against Judge Greer merely because the state court was the forum for the private litigation.

My point mainly is just that the opinion isn't stupid and certainly doesn't stand for the proposition that judges are exempt from following the Constitution.

[Xrlq]

The 14th Amendment isn't a cause of action; the cause of action is found in 1983, which is a statute allowing you to sue for violation of constitutional rights, including those applied to the states through the Due Process clause of the 14th Amendment.

That's not correct. Section 1983 certainly made it easier, not to mention more lucractive, to bring actions alleging constitutional violations, but people could and did mount constitutional challenges in court long before it was enacted. Assuming that the state action doctrine really does mean the same thing for purposes of § 1983 and the Constitution (and given the tension between the Flagg Bros. case and Lugar cases, that is an assumption), there's still a very practical difference between the two. Namely, to show a constitutional violation, one need only show that the challenged act/law/ruling/etc. can properly be imputed to the state. To recover against a specific individual under § 1983, however, you have to identify a specific individual who actually used his state powers in an objectionable way. If the California Legislature voted tomorrow to pass a statute barring citizens from publicly criticizing their elected officials, and every DA and the AG all promised never to enforce the law, I don't know that a successful § 1983 action could be maintained against anyone in particular. I do know, however, that this dearth of "state actors" would pose no barrier at all to a First Amendment challenge to the statute itself.

None of that should have mattered in this case. The Schindlers weren't attempting to obtain damages or attorney fees from Michael Schiavo, George Greer, or anyone else in particular. They were just challenging the constitutionality of a court ruling, which the idiot judge ruled not to be a state action, and therefore unreviewable under the 8th and 14th Amendments. Well, if he were right about that, court rulings would be exempt from a lot more than just those two amendments. They'd be exempt from all parts of the Constitution that are subject to the state action doctrine, which is to say almost all of it. If there is any coherent theory for why judges should be not be considered state actors for purposes of Amendments 8 and 14, but should be considered state actors for purposes of any of the other examples I raised, I have yet to hear it.

Also, it's worth noting that flubbing the state action doctrine isn't the only thing about Judge Whittemore's ruling that is fundamentally stupid. Equally dumb was his substantive analysis of Count 8, procedural due process. While he correctly noted that Cruzan does not require clear and convincing evidence as a condition of starving someone to death, he completely missed the fact that the Fourteenth Amendment, by its terms, has to require something. Maybe that something is clear and convincing evidence, as the Schindlers' lawyers maintained, or maybe it is something less than that - Cruzan does not say - but Whittemore acted as if there were no federal constitutional requirement at all. In so ruling, he might just as well have said that "no state shall ... deprive any person of life ... without due process of law" means "no state shall deprive any person of life unless it wants to."

[Patterico]

Test

[Paul Deignan]

It is directly pertinent here that the state action was taken in regards to a person who was not a litigant.

The action at issue here wasn't unconstitutional on its face. Further, the state did not significantly involve itself with the deprivation of the individual's rights - the only state involvement is the use of the state courts as an instrument.

This statement is false in reference to the Schiavo case.

Note also that neither Florida law nor the litigants allowed/asked for the order that was produced by Greer. It goes beyond these boundaries and mandates action that was enforced by the police powers of the state.

So, I don't see the case that you are trying to make.

[Paul Deignan]

And, BTW, as he was ordered by Greer directly to prevent hydration and nutrition, Michael Schiavo was a state actor.

[Paul Deignan]

This is the objectionable order:

“ORDERED AND ADJUDGED that absent a stay from the appellate courts, the guardian, MICHAEL SCHIAVO, shall cause the removal of nutrition and hydration from the ward, THERESA SCHIAVO, at 1:00 p.m. on Friday, March 18, 2005″

So, if anyone would like to explain how this court order enforced by the police powers of the state was not a state action, I'm all ears.

I am also interested in arguments that this is either in compliance with Florida law or the US Constitution.

The result directed was unconstitutional; the method was by state action outside the bounds of Florida law.

[Paul Deignan]

Finally (for now), a clear reading of the fifth amendment would have required a grand jury indictment for all capital offenses. In other words, it is unconstitutional to conjure up a "civil" procedure that has the effect of enforcing capital punishment without these safeguards.

The judicial overreach here is in causing punishment (loss of liberty and life) to the individual through civil procedures. Hadn't we decided that debtor's prisons were unconstitutional?

This is applicable: http://ezinearticles.com/?Brief-on-Jailing-Child-Support-Debtors-in-Unconstitutional-Debtor-Prisons&id=4754

[Paul Deignan]

Note that in the discussion of case law cited here of what is and is not state action, that there is no general rule applied. In the case of blatant civil rights discrimination, there is a cherry picking of cause. In the case of Torres, there is a wish to escape responsibility without a definition of that responsibility--the motive is simply stated as a fear.

For the courts to be consistent, all of these actions are state actions. When a judge decides a case, that is a state action. If he does it in compliance with the law, then the due process requirement has been met. If not, it can be a 14th Amendment violation. Note that these exceptions have been cut out by the courts for the courts. They are simply attempting to expand their own power outside of the law. Simply again, this is unconstitutional.

If on the other hand, a person was to persist with the claim that state decisions are not state actions, then there is no such thing as a state action rendering the 14th Amendment a nullity. All government action is predicated on laws. All laws are open to judicial review. Furthermore, there are no other constraints on judicial behavior that are self-imposed. And so, there is no rule applied even in the case of racial discrimination that is more meaningful than to say, "Of course we can't do this". Why? What makes it different from Schiavo?

So, the flaw in the analysis here is to accept unquestioningly bad premises. If a court ruled that all people as chosen by the court should be dehydrated, what rule would you claim as the counterexample? You would need to go back to the Amendments themselves, just as we must do here. (The response, "Oh this could never happen" doesn't wash.) Futhermore, the state actor discussion here has produced no good general rule--it only further exposes the inherent contradictions of case law caused by creeping overreach.

[Patterico]

Even assuming that there is "state action" in the Schiavo case, the right at issue is the right to life, which can be taken away after "due process." This doesn't guarantee a correct result, just a process that was not a complete nullity. We may not agree with the result; indeed, I don't. But our disgreement does not a 14th Amendment violation make.

That is the legal answer, and as things currently stand, I don't think it's open to much debate. But let's take a step back. What makes this disturbing is that the state has set up a process that may result in someone's death, without any of the strict procedures that it must follow when it sets out to accomplish someone's death through the application of criminal statutes.

Look at the wording of Judge Greer's final order regarding the feeding tube. It does not authorize Michael Schiavo to remove the feeding tube. It commands him to. Technically, if Michael Schiavo had had a change of heart and decided not to remove the tube, he could have been found in contempt of court.

It is a death warrant. Paul is right.

That is the most obvious thing that distinguishes this case, in my view. Hard to see how that could not be state action.

I still find it interesting to speculate whether this would have been proper even if the order had been permissive.

[Patterico]

Towards that end, let me address some of Xrlq's issues from this thread and the last:

I think we agree that a private person may take actions that would violate the Constitution if undertaken by a government official. For example, if I am not a government official, I don't violate the Constitution if I punish an employee for voicing his support for a political candidate -- even during his off hours. It might be stupid for me to do that, but it does not amount to a constitutional violation.

Now, say my employee takes me to court to have his job reinstated. An idiot judge rules that I didn't have the right to fire him, and orders him reinstated. Then an appellate court reverses, properly holding that I had the right to fire my employee.

The appellate decision is a court order that has the effect of sanctioning punishment for the expression of political speech. Yet I suspect that the appellate decision would not violate the 14th Amendment, because the court is simply acting as a neutral referee for purely private conduct. You can call the appellate decision "state action" if you like, but the fact that a court took this action does not mean that the infringement on my former employee's speech is attributable to the state.

[Patterico]

I'd also like to address what is probably a semantic issue:

We appear to differ on the analysis of what is required to show a constitutional violation. In comment 44 in this thread, Xrlq says it's this simple:

1. Did the act deprive you of a right? 2. Did the state / someone with government authority do it?

My sense is that this is too simplistic. As I said in comment 43 of that thread, I think a right secured under the Constitution means, in most cases, a right only to be free from government action. I think that prong 1 of Xrlq's analysis should recognize that, with limited exceptions that have nothing to do with this discussion, there is no violation of a constitutional right to begin with, absent action attributable to the state.

So I disagree with this statement of Xrlq's from comment 44:

The color of law element is the part that requires an act to be attributable to the state; the mere existence of a constitutional or statutory right (1983 covers both) does not. If I were to somehow prevent you from expressing your views, you would indeed be deprived of a right secured by the U.S. Constitution - freedom of speech - but could not sue me under 1983 because I did not act under color of law, nor under the 1st and 14th Amendments because none of my actions can reasonably be imputed to any state.

I disagree. Freedom of speech in the abstract is not a right secured by the constitution. Freedom from government interference with speech is.

So, Terri Schiavo did not have a constitutional right violated absent state action.

That was the point of my example of firing the employee above.

[Paul Deignan]

The appellate decision is a court order that has the effect of sanctioning punishment for the expression of political speech. Yet I suspect that the appellate decision would not violate the 14th Amendment, because the court is simply acting as a neutral referee for purely private conduct. You can call the appellate decision "state action" if you like, but the fact that a court took this action does not mean that the infringement on my former employee's speech is attributable to the state.

The state is never a neutral referee. We did not create the state as a neutral observer of civic disputes, it is there to enforce rules that we have created beforehand. When it errs in the application of these rules, the state is culpable (arbitration panels and public service boards fullfill this function by voluntary consent of litigants). When that decision is causal to an action, there is a state action. (In fact, there is a state action in the proper or improper enforcement of any law).

Yes, this does open the door to all sorts of claims. However, the bar was set very low by the Constitution. All that is required is due process, not due result. If the state functions within the parameters of the rules (law), dues process is served.

Otherwise, the state could achieve unconstitutional results by picking and choosing cases brought before it--it could even manufacture its own litigants.

So the real threat is state corruption. The 14th Amendment (when properly applied) is a safeguard against this corruption. Note that I do not differentiate between various levels of courts--this stratification exists for the integrity and efficient working of the courts by and for the courts, not for and by the People. The Constitution is silent on the precise organization of the judiciary.

[Xrlq]

My sense is that this is too simplistic. As I said in comment 43 of that thread, I think a right secured under the Constitution means, in most cases, a right only to be free from government action. I think that prong 1 of Xrlq's analysis should recognize that, with limited exceptions that have nothing to do with this discussion, there is no violation of a constitutional right to begin with, absent action attributable to the state.

You can certainly look at the issue that way, but if you do, you've built the state action doctrine into the definition of the right itself. Once you do that, there's no need to consider the state action doctrine separately, at least not for purposes of determining whether a constitutional violation occurred. There still will be for § 1983, though, as it's one thing to prove generally that the state has taken a particular action, and quite another to show that a specific individual is responsible for it. That, plus the fact that § 1983 actions always requires a showing that the defendant acted under color of law, even if the right deprived was not subject to the state action doctrine. If I, as a private citzen, were to enslave anybody, and he were to sue me in federal court under § 1983, his § 1983 action would fail for lack of state action / color of law, even though the underlying constitutional violation did not require it.

[Paul Deignan]

Patterico,

BTW,

In your example, the state action of the appellate court is the allowance to refire the employees (whether you do it or not is still your business). This is the state remedy to the violation of your constitutional right to fire the employees by the state action of the idiot judge. You may have another remedy yourself (which I suppose is relevent to the Sec. 1983 discussion--I am not so concerned with what you can sue for, only in what the proper government function is). However, if the idiot judge followed proper procedure and arrived at his result within the parameters of due process, you are lost (it is your responsibility to supply facts on your side--it is the responsibility of the courts to operate on those facts in accordance with rules. The result may or may not be determinant. If not determinant, then "Oh well"--lobby your representatives for better rules.

More on determinancy theory here.

My point is that there is a confusion in the example about who is doing what to whom.

[Patterico]

I have a *constitutional* right to fire employees?

[Paul Deignan]

Patterico,

If an action is in conformance with the constitution and within its scope, it is generically a constituional right. This doesn't mean that it is an explicit right or, for that matter, a right that you can sue for.

I'm just looking at this as a systems problem. So, lets not confine ourselves to explicitly declared and guaranteed rights. The rights that you can sue for will be a susbset of this larger group.

I suppose one might argue that this right explicitly derives from some other constitutional provision, but that is not necessary for the above analysis to hold. This is a part of the determinancy problem of constitutional construction (or underdeterminancy as the reference uses).

Remeber, the point of the previous post is about actions: who is doing what to whom.

[Xrlq]

Paul, I don't think it makes sense to argue that someone has a "constitutional" right to do X solely because the Constitution does not prohibit him from doing X. If we defined rights that way, you'd have a "constitutional" right to do almost anything, including many illegal activities. Depending on what state you live in, you have a legal right to fire employees for (almost) any reason or no reason, but the only reason you have that right is because the Legislature hasn't passed a statute saying you don't have that right. It has nothing to do with the Constitution.

[Patterico]

Actually, in a lot of states (including California) it would be against the law to fire someone for the reasons I stated, due to state statute. Those state statutes would be unconstitutional if one had a federal constitutional right to fire anyone for any reason.

But getting back to my hypo: Xrlq, has the appellate court violated my former employee's constitutional right to free speech? Why not? How does that hypo fit your description of what is required to show a constitutional violation?

I think the Schiavo case is different from my example, but the reason isn't that all court rulings are state action under the state action doctrine. I'm still skeptical about that. The reason is the wording of the order, primarily, as a command that Terri Schiavo die.

If the order had been worded permissively, as past similar orders apparently were, there would still be an arguable distinction, in that deciding matters of life and death for other people is a function traditionally reserved for the state. It's a more subtle analysis -- one that seems intuitively correct to me, but may be wrong under the case law.

[Paul Deignan]

Xrlq,

I'm not defining a right. What I am doing is looking at the feasible range of operation of a system working under certain constraints (the Constitution).

So, I could use that terminology above, or I could bastardize the legal usage of the phrase "constitutional right". For this statement that I made to fail, we would need a constitutional provision that explicitly prohibits firing. I don't think such a rule exists. This is different from asserting the positive.

As Patterico points out, there is room for some indeterminancy (the questionable California rules). It would be interesting to argue the constitutionality of these rules to search for a definite answer one way or the other (likely a fruitless search), but not necessary. All that is required is that the idiot judge may have misapplied the existing rule set causing a deprivation of property.

If he did not, then the employer is out of luck as long as the other procedural rules were followed. In any case, the action is still by the state in temporarily forcing Patterico to rehire his employees. That is a state action. Whether it was improper, lacking of due process, etc. is another matter altogether. The action of the appellate court was also a state action.

[Paul Deignan]

When I said "misapplied" above, I mean "violated".

[Xrlq]

Patterico, of course a court would not deprive you of your First Amendment rights solely by ruling - correctly - that a private employer had a right to fire you for expressing views that would otherwise be protected by the First Amendment. That's not because the state isn't acting, however; it's because the only action the state has taken was to determine the respective rights of the two parties before it. It goes back to my Hans and Franz example: Hans violated a right (in spirit, at least), and Franz acted under color of law, but unless Hans and Franz colluded, Hans's deprivation of a right can't be imputed to Franz, and Franz's state action can't be imputed to Hans.

I agree that in your hypo, the difference between a permissive order and a mandate probably would cross the line. If the court is the one ruling that the employee must be fired, that raises a real First Amendment issue not present when that choice is made solely by a private party. Neverthleless, I don't believe it's a complete answer. I've given this counter-hypo before: suppose that Florida passed a self-help law allowing crime victims or their next of kin to take matters into their own hands after convincing a judge to allow it. Fred Goldman obtains a court order allowing, but not requiring, him to bump off O.J., and offers all the police assistance he needs should he choose to exercise that option. O.J. challenges the court ruling on the basis that it wrongfully deprives him of life in violation of the 14th Amendment. Without considering the merits of the argument, Judge Whittemore rules that the order cannot violate the Fourteenth Amendment because judges aren't state actors. O.J. appeals. What result?

[Paul Deignan]

Xrlq,

I'd like to precise your last point.

The action extends only as far as the first independent actor (or until the point where the expectation of the action becomes unpredictable).

So in the example, Yes, the action of the state is in making a decision. The degree to which the adverse result is attributable to the state is dependent on the expectation of this result of the state action.

The state must be responsible for the probable consequences of its actions just as any other entity. The question is in defining a confidence limit (something more than preponderence but less than beyond a reasonable doubt).

Unlike private actors, I don't believe that a mens rea need to shown for the state to be culpable.

Again, action and culpability are separate concepts. First we should determine the limits of the action, then determine whether or not a violation occurred within that range of action.

[Patterico]

I think you're getting caught up on the "judges are not state actors" thing. Recall that I first pointed out that Whittless Whittemore said Greer was not a state actor -- and I ridiculed that and noted that the case he cited said the exact opposite.

But saying a court ruling is not state action (under certain circumstances) strikes me as a different concept than saying a county probate judge is not a state actor (which is an obviously silly statement).

But let's say that in your hypo, Whitteless rules that there was no state action, not that the judge was not a state actor.

Under your hypo, I believe O.J. would clearly have a winning argument that the judge's actions violate the 14th Amendment. For one thing, the example is so outrageous that the conclusion is irresistable that the "process" was a nullity. Even putting that aside, I have argued that determining the life and death of others is arguably a state function.

That's not because the state isn't acting, however; it's because the only action the state has taken was to determine the respective rights of the two parties before it. It goes back to my Hans and Franz example: Hans violated a right (in spirit, at least), and Franz acted under color of law, but unless Hans and Franz colluded, Hans's deprivation of a right can't be imputed to Franz, and Franz's state action can't be imputed to Hans.

Well, first, there was no requirement to proceed under section 1983, so we should be looking only at the requirements for violating the 14th Amendment. Also: I thought that determining the respective rights of parties before the court -- you know, rulings by judges -- was always always always state action, and anyone who suspected differently needed to come back to earth and such. Didn't you once say something like that?

http://xrlq.com/2005/04/01/2273/douglas-kmiecs-april-fooler/#comment-15119

[Xrlq]

Yup, and still do now. Franz is indeed a state actor. The action against him fails because he didn't do anything wrong, not because {take your pick: he wasn't a state actor / the state took no action / he didn't act under color of law}.

Methinks you're confusing the concept of state actions in general with bad state actions in particular. If the bad judge is a state actor, so is the good judge, just like the good cop, the good prosecutor, and countless other state officials whose acts bind the state all the time, but who nevertheless can't be sued under § 1983 since they didn't do anything wrong.