3rd Circuit: DA's Office Not 'Arm of State'

Can't use immunity to dodge case

Shannon P. Duffy
The Legal Intelligencer
April 30, 1999

The 3rd U.S. Circuit Court of Appeals has ruled that the Philadelphia District Attorney's Office is not an "arm of the state" and therefore can be sued under civil rights laws for the conduct of its investigators.

The ruling in Carter v. City of Philadelphia overturns a decision by U.S. District Judge Bruce W. Kauffman in a suit brought by a man who said he was falsely prosecuted for a 1986 barroom murder based on false testimony from a paid informant.

Raymond Carter's conviction was overturned in 1996 when a Philadelphia Common Pleas judge found that the prosecution had violated its duties under Brady v. Maryland by not disclosing that Pamela Jenkins, a key prosecution witness, was a paid informant.

Even though the District Attorney's Office was not aware that Jenkins had been paid, Common Pleas Judge Joseph I. Papalini said that Carter was nonetheless entitled to a new trial. But Papalini specifically noted that he had not found Carter innocent of the murder of Robert Harris.

The central figure in Carter's post-conviction challenge was former police officer Thomas Ryan who confessed to corruption charges in the 39th district scandal. Carter claimed that Ryan suborned the perjury of a prostitute-informant -- with whom Ryan had been intimate -- to serve as an eye-witness against Carter.

In December 1996, the DA's Office chose not to prosecute the case further, and Carter was released from prison.

In his federal civil rights suit, Carter claimed that his conviction was "proximately caused by" the deficient policies of the city, its police force, and the DA's Office. The DA's office, he said, should have had training and supervision that would have prevented or discouraged police officers from procuring perjurious eye-witnesses, and alerted prosecutors to the falsity of such bogus testimony.

Lawyers for the city moved to dismiss any claims against the "Richard Roe" defendants, identified by Carter as investigators from the DA's Office who allegedly failed to investigate the use of tainted evidence in his case.

Kauffman agreed, saying that the DA's Office is an "arm of the state" for 11th Amendment purposes when it is performing its investigatory and prosecutorial functions.

Whether a governmental body is an arm of the state is a question of federal law, Kauffman said, that must be analyzed under the three-factor test announced by the 3rd Circuit Court of Appeals in Fitchik v. New Jersey Transit Rail Operations Inc.

The three Fitchik factors are:

  • Whether, in the event the plaintiff prevails, the payment of the judgment would come from the state.
  • The status of the agency under state law.
  • The degree of autonomy the agency enjoys.
Kauffman said that while no single factor is dispositive of the 11th Amendment analysis, the "most significant factor" is the first -- whether any judgment against the DA's Office would be paid out of the state treasury.

The DA's Office acknowledged that the first factor weighed against it because the majority of its funding comes from the city.

But Kauffman nonetheless found that 11th Amendment immunity was appropriate because the second and third factors weighed heavily in favor of the DA's Office.

"It would be hard to imagine functions more essential to the sovereignty of state government than the investigation and prosecution of state criminal charges," Kauffman wrote.

Prior to 1850, Kauffman said, "the Attorney General of the Commonwealth was empowered to perform those critical functions. In practice, however, he appointed deputy attorneys general for the counties to perform them."

In 1850, the General Assembly "transferred the duties of the appointed deputy attorneys general to a 'district attorney' elected by the voters of each county," Kauffman said.

The amended version of the statute creating the office of district attorney "establishes beyond any doubt that the District Attorney's Office functions as an arm of the Commonwealth when performing its investigative and prosecutorial duties," Kauffman found.

The third factor, autonomy, also weighs in favor of the DA's Office being considered an arm of the state, Kauffman said, because Pennsylvania courts have held that "the District Attorney . . . is the sole public official charged with the legal responsibility of conducting in court all criminal and other prosecutions, in the name of the Commonwealth."

While DA's in Pennsylvania are not subject to "local control," Kauffman found that they are subject to the state Attorney General's supervision and have "always been subject to judicial oversight."

REVERSAL Now the 3rd Circuit has reversed that ruling, finding that Kauffman applied the correct test, but erred both in his analysis and the balancing of the Fitchik factors.

U.S. Circuit Judge Carol Los Mansmann found that the funding factor weighed especially heavily against the DA since "it appears that no portion of the DA's funds are provided by the state and no portion of any judgment will be paid directly or indirectly by the state."

The status prong also weighed against finding that the DA is an arm of the state, Mansmann said, since "Pennsylvania's case law defines district attorneys -- Philadelphia district attorneys in particular -- as local, and expressly not state, officials."

Mansmann said Kauffman erroneously considered that fact irrelevant because he "believed performance of a sovereign function, such as investigation and prosecution of crime, was alone sufficient to accord prosecutors sovereign immunity."

But Mansmann said Pennsylvania law clearly says that mere performance of an essential sovereign function in the name of the state "does not give rise to state surrogate status under state law."

Kauffman also erred, she said, by adopting a position that "would inappropriately pull all of the functions of the [DA's] office within the scope of its . . . prosecutorial function."

The federal courts, she said, have recognized the "hybrid nature" of a DA's office -- distinguishing between its prosecutorial functions and the DA's role as elected county policymaker.

The theme of those decisions, Mansmann said, "is that county or municipal law enforcement officials may be state officials when they prosecute crimes or otherwise carry out policies established by the state, but serve as local policymakers when they manage or administer their own offices."

In Carter's case, Mansmann said, his claim pertains to DA's office functions that are "not prosecutorial, but administrative," since it focuses on training, supervision and discipline, rather than decisions about whether and how to prosecute cases.

Kauffman also erred in finding that the DA is not autonomous, Mansmann said, since such a finding is "contrary to Pennsylvania's consciously and deliberately designed autonomous role for its district attorneys."

The Pennsylvania attorney general is "without authority" to replace a DA, who must be impeached for removal under state law, Mansmann noted.

Carter is represented by Robert W. Small of Berlinger & Small, along with sole practitioner Susan F. Burt.

The DA's office was represented on appeal by R. David Walk Jr., Bebe H. Kivitz, Kevin J. Kotch and Chonda Jordan Nwamu of Hoyle Morris & Kerr.

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