B, Butz v. Economou,
Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman
Edited By: Kermit L. Hall
Butz v. Economou,
438 U.S. 478 (1978), argued Nov. 1977, decided 29 June 1978 by vote of 5 to 4; White for the Court, Rehnquist for the minority which concurred in part and dissented in part. After successfully aborting a complaint against him filed by the secretary of agriculture and subordinates, Economou, a commodities dealer sued these officials for $32 million claiming they had proceeded against him because he was a critic of department policies. The government sought to quash the suit claiming absolute immunity was conferred in accordance with Spalding v. Vilas (1896) and Barr v. Matteo (1959). The court of appeals reversed the district court’s dismissal.
Justice *White’s careful opinion denied absolute immunity and somewhat disingenuously asserted that neither Spalding nor Barr granted such immunity where a claim of violation of a constitutional right was involved. Spalding had found a common-law exemption of high federal officials from “suits where they were carrying out duties imposed … by law” even if allegations of personal animosity were involved (p. 495). The plurality opinion in Barr v. Mateo was similarly sweeping, involving a press release by a government official containing substantial errors. But White noted these cases dealt with the scope of the officials’ authority, not the harm of an alleged unconstitutional action.
Conceding the value to decision making of all immunity from litigation, White argued that immunity is such a departure from the rule of law that it must be carefully measured. Judges and prosecutors and others in the executive branch in judgelike positions needed the immunity. Other executive officials were only entitled to the “qualified good-faith immunity” that previous decisions had extended to state officials. Immunity exists for mere error, so long as the official acted without malice or knowledge of illegality and reasonably could have believed the actions lawful and constitutional. But where (p. 133) the official knew, or should have known, of an unconstitutional deprivation of rights, immunity should be controlled.
Rehnquist’s minority opinion suggests the majority standards exposed officials excessively to frivolous suits since ingenious lawyers would have no difficulty in recasting claims in constitutional terms. In Harlow v. Fitzgerald (1982) the Court rejected a claim by President Richard Nixon’s aides of absolute immunity, but modified the Economou standard by eliminating the subjective test that required a hearing of evidence as to the decision maker’s attitudes, conduct, and such. The remaining test—that the official has immunity unless no reasonable decision maker could deem the action lawful—facilitates summary judgment on frivolous complaints.