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Is There Liability for Enacting Unconstitutional Laws?

Is there recourse when the Legislature and Governor enact an unconstitutional law?

By Chris Micheli, June 5, 2019 6:00 am

I have occasionally been asked whether there is any recourse when the Legislature and Governor enact a law that violates the state and/or federal constitutions. Obviously, the first action would be to challenge the enacted bill in either a state or federal court depending on the basis for the constitutional challenge. If the other two branches of government enact an objectionable law, there are only two avenues of recourse: the third branch of government (i.e., the courts) or the ballot.

However, to make a determination of whether an enacted law (i.e., a statute), there is only one avenue – the state or federal courts. When the proper court determines that a legislative act (a law) conflicts with the constitution, it finds that law unconstitutional and declares it void in whole or in part. This is judicial review and the role of the third branch of government and part of our republic’s system of checks and balances.

Now, assuming that a state or federal court did rule that a law violates the California or Unites States Constitutions, is there any recourse or a second action? In other words, can the Legislature or Governor be held “accountable” for enacting an unconstitutional state law? Does it matter whether they were informed that the proposed law might be unconstitutional? The short answer is no.

It is not the role of the legislative or executive branches of government to determine a statute’s constitutionality. Rather, that role is reserved to the third branch of government – the judicial branch. Recall your civics class teacher explaining that the legislative branch makes the laws, the executive branch enforces the laws and the judicial branch interprets the laws.

Generally, members of the Legislature and the Governor enjoy qualified immunity when they are acting in their official capacity, rather than in a personal capacity. In addition, the courts generally presume that all statutes enacted are valid, until a statute is actually declared to be invalid. This general rule is based upon a presumption of lawfulness that protects the official actions of elected officials.

Note that federal law actually allows a civil private right of action for damages that may be brought against a public officer who acts under an unconstitutional statute. Section 1983 was enacted after the Civil War to hold a state official accountable for violation of a federal law. But these laws apply to executive branch officials who are acting pursuant to a law. They do not apply to those elected officials who enact the law(s).

Of similar note is that judges enjoy limited immunity for performing their official job duties. In all of these instances, the rule is that government officials will not incur any civil liability for violating federal laws so long as they do not violate “clearly established law”. However, in all of these instances, the court decisions deal with whether official action under a statute allows a private citizen to sue that official.

For example, in Pierson v. Ray (1967), the U.S. Supreme Court determined that officials who commit constitutional or statutory violations in “good faith” cases raise the defense of “qualified immunity.” As such, there really are not cases dealing directly with potential civil liability for an elected official in creating the underlying unconstitutional statute.

The legal doctrine of official immunity has existed since common law decisions were made by the courts. Generally, the courts will look to whether the officials conducted themselves in good faith. Otherwise, well-intentioned public officials could be held personally liable for their official acts. Following the lawmaking process while “pushing the envelope” on public policy issues does not mean our elected officials can be held liable for enacting unconstitutional statutes.

In the end, the courts serve as a “check” on legislative enactments as do the voters. In other words, citizens can challenge bills that are enacted into law by civil suits being filed in the state or federal courts who will decide whether those statutes comport with the constitutions. And, our elected officials and their actions are ultimately answerable to the state’s electorate. If the citizens believe that unconstitutional laws are being enacted, then they can seek to recall elected officials or they can try to vote them out of office at the next ballot.

Chris Micheli

Chris Micheli is a Principal with the Sacramento governmental relations firm of Aprea & Micheli, Inc. He is also an Adjunct Professor at McGeorge School of Law in its Capital Lawyering Program.
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