IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 83,714
DAVID PRAGER, III,
Plaintiff/Appellant,
v.
STATE OF KANSAS,
DEPARTMENT OF REVENUE;
KARLA PIERCE, Secretary of the
Kansas Department of Revenue,
In Her Official Capacity; and
JOHN D. LaFAVER, former Secretary of
Kansas Department of Revenue,
In His Personal Capacity.
Defendants/Appellees.
SYLLABUS BY THE COURT
Under the facts of this case and for the reasons set forth in the opinion, it is held: (1) The trial court erroneously dismissed the plaintiff's 42 U.S.C. § 1983 (1994) action for injunctive relief against the Kansas Department of Revenue and its Secretary in her official capacity for failure to exhaust administrative remedies, and its ruling doing so is reversed; however, the trial court did correctly dismiss the plaintiff's 42 U.S.C. § 1983 action for injunctive relief against the Kansas Department of Revenue, although not for the reasons it relied on, and its ruling doing so is affirmed; (2) the trial court erroneously dismissed the plaintiff's 42 U.S.C. § 1983 action for injunctive relief seeking reinstatement of employment against the Secretary of the Kansas Department of Revenue in her official capacity, and its ruling doing so is reversed; (3) the trial court correctly dismissed plaintiff's claim for damages pursuant to the Kansas Tort Claims Act against the Kansas Department of Revenue and its former Secretary in his personal capacity for claimed deprivation of plaintiff's United States and Kansas constitutional rights of free speech, and its ruling doing so is affirmed; (4) the trial court correctly dismissed plaintiff's claim for damages pursuant to the Kansas Tort Claims Act against the Kansas Department of Revenue and its former Secretary in his personal capacity for claimed deprivation of plaintiff's United States and Kansas constitutional rights of due process, and its ruling doing so is affirmed; (5) the trial court erroneously dismissed the plaintiff's claim for damages under the Kansas Civil Service Act against the Kansas Department of Revenue for claimed deprivation of his United States and Kansas constitutional rights of due process to a prompt post-termination administrative hearing because the record is not sufficiently developed at this time to justify dismissal, and its ruling in doing so is reversed; (6) the trial court correctly dismissed the former Secretary of the Kansas Department of Revenue from plaintiff's claim under the Kansas Civil Service Act for claimed deprivation of United States and Kansas constitutional rights of due process, and its ruling doing so is affirmed; (7) the trial court correctly dismissed plaintiff's claim of common-law whistleblowing against the Kansas Department of Revenue and its former Secretary in his personal capacity for retaliatory discharge because K.S.A. 75-2973 provides a Kansas classified civil service employee an adequate alternative statutory remedy for whistleblowing, and the trial court's ruling in dismissing this claim is affirmed, although not for the reason utilized by the trial court.
Appeal from Shawnee district court, TERRY L. BULLOCK, judge. Opinion filed March 23, 2001. Affirmed in part, reversed in part, and remanded.
Alan V. Johnson, of Sloan, Listrom, Eisenbarth, Sloan & Glassman, L.L.C., of Topeka, argued the cause, and Louis F. Eisenbarth, of the same firm, was with him on the briefs for appellant.
Thomas V. Murray, of Barber, Emerson, Springer, Zinn & Murray, L.C., of Lawrence, argued the cause, Terence E. Leibold and Terrence J. Campbell, of the same firm, were with him on the brief for appellees.
The opinion of the court was delivered by
LARSON, J.: Plaintiff appeals the trial court's dismissal for failure to state a claim on which relief can be granted of his suit seeking (1) declaratory and injunctive relief under 42 U.S.C. § 1983 (1994) for alleged violations of his rights of free speech and due process under the United States Constitution, (2) damages under the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq., for (a) deprivation of his rights of free speech guaranteed by the Kansas and United States Constitutions, and (b) deprivation of his rights to due process guaranteed by the Kansas and United States Constitutions, (3) damages under the Kansas Civil Service Act (KCSA), K.S.A. 75-2925 et seq., for deprivation of his rights to due process guaranteed by the Kansas and United States Constitutions, and (4) damages for retaliatory discharge based on a common-law claim of whistleblowing.
Nature of the case
The plaintiff and appellant in this case, David Prager, III, was employed by the Kansas Department of Revenue (Department) as an Attorney III, a classified civil service position, from 1988 until his employment was terminated in May 1997. During this period his primary duties involved representation of the Department in corporate tax appeals.
In the fall of 1996, Prager precipitated a controversy within the Department in response to public criticism of the Department's actions by first delivering a memo to his supervisor and then sending a letter with a 12-page memo to Governor Bill Graves to defend his actions which had been criticized in the press. On January 8, 1997, Prager was suspended from his employment because his allegations and characterization of events compromised his ability to fairly represent the Department.
On February 6, 1997, Prager filed an appeal from his suspension with the Kansas Civil Service Board contending his suspension violated K.S.A. 75-2973, the Kansas "whistleblower" statute.
On March 17, 1997, Prager again sent a letter to Governor Graves in which he expressed concern about a possible illegal tax refund. On May 9, 1997, Prager's employment was proposed to be terminated for "lack of judgment, insubordination, violation of confidentiality . . . acting contrary to the interests of your client and exhibiting personal conduct detrimental to the state service . . . ." Prager was offered the opportunity to reply in writing, to appear, or to do both on the issue of his proposed dismissal. He failed to do either and his employment was terminated effective May 16, 1997.
On June 6, 1997, Prager filed an appeal with the Kansas Civil Service Board concerning his termination. His termination appeal was consolidated with his suspension appeal. We were informed by the parties that after a discovery dispute, the appeal has been heard and a ruling unfavorable to Prager on all issues raised has been appealed to and is now pending before the Shawnee County District Court.
The case before us was filed in January 1999 by Prager against the Kansas Department of Revenue; Karla Pierce, the then Secretary of Revenue in her official capacity; and John D. LaFaver, the former Secretary of Revenue in his personal capacity. The petition requests relief under the following five counts.
Count one prays for judgment under 42 U.S.C. § 1983 against the Kansas Department of Revenue and Secretary Pierce in her official capacity for (a) deprivation of Prager's federal constitutional rights of free speech and due process under color of State law and (b) reinstatement of Prager to his former position, and prays for an award of attorney fees and litigation expenses pursuant to 42 U.S.C. § 1988 (1994).
Count two prays for judgment under the KTCA against the Kansas Department of Revenue and LaFaver in his personal capacity for deprivation of Prager's United States and Kansas constitutional rights of free speech and prays for damages in excess of $75,000.
Count three prays for judgment under the KTCA and the KCSA against the Kansas Department of Revenue and LaFaver in his personal capacity for deprivation of Prager's United States and Kansas constitutional rights of due process and prays for damages in excess of $75,000.
Count four contends the termination of Prager's employment was in retaliation for his "whistleblowing" in his letters to Governor Graves and prays for damages in excess of $75,000 under the KTCA against the Kansas Department of Revenue and LaFaver in his personal capacity.
Count five, which was dismissed by the trial court, requested damages for false light publicity. That dismissal was not appealed by Prager and is not an issue in this appeal.
The trial court's ruling that granted the defendants' motion to dismiss for failure to state a claim upon which relief can be granted will be described in more detail later in this opinion but essentially held: (1) Prager must exhaust his administrative remedies before the Kansas Civil Service Board prior to pursuing his claim under 42 U.S.C. § 1983, (2) as to counts two and three for violation of constitutional rights of free speech and due process, a common-law cause of action for violating a citizen's federal or state constitutional rights has not been recognized in Kansas and, therefore, the State and its agents are immune from liability, and (3) as to the claim for retaliatory discharge based on "whistleblowing" such claim is not viable because Prager disclosed confidential tax information in his communications to Governor Graves.
Prager appealed. Our jurisdiction is pursuant to K.S.A. 20-3018(c) (transfer on our motion).
Factual statement
Since no discovery had taken place when the motion to dismiss was filed, we must rely on the pleadings and exhibits attached thereto as the facts we must consider. Both parties agree the holding of GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381 (10th Cir. 1997), was properly applied by the trial court and that the motion to dismiss was not converted into one for summary judgment.
The defendants attached to their motion to dismiss copies of Prager's letters to Governor Graves and Secretary LaFaver's letters of suspension and dismissal to Prager, all of which were referenced in Prager's petition, were considered by the trial court, and will be considered by us on appeal.
In ruling on the motion to dismiss, the trial court stated the following facts:
"1. Plaintiff . . . , held the position of Attorney III with the Department of Revenue from 1988 until his termination on May 16, 1997.
"2. On October 31, 1996, . . . Plaintiff delivered a memo to his supervisor, Richard Oxandale, general counsel for the Department of Revenue. At that time, Plaintiff was in charge of a corporate income tax appeal, hereinafter referred to as Tax Appeal A. In this memo, Plaintiff stated that the tax laws had been misinterpreted by Mr. Oxandale and the Secretary of the Department of Revenue, John D. LaFaver, in another tax appeal (hereinafter Tax Appeal B) which involved the same issue as Tax Appeal A, i.e. whether a federal agreement to extend the federal assessment limitation period extends the time period for a Kansas refund claim under K.S.A. 79-3230(e). He stated that little or no research had been done in arriving at this erroneous interpretation and that this erroneous interpretation resulted in an illegal tax refund of approximately $1.0 million to taxpayer B. Plaintiff's memo included three pages of legal analysis and included a request for a meeting with Mr. Oxandale and Secretary LaFaver. No meeting was ever scheduled.
"3. On December 18, 1996, Plaintiff Prager sent a letter and twelve-page memo to Governor Bill Graves. The letter provided in relevant part [bracketed portions were inserted by the trial court]:
'I am the senior state tax attorney who has been the subject of several personal attacks in the Topeka Capitol Journal. Although I have up to now endured this criticism without formal response, the December 8th editorial which said that my actions were an "outrage" causes me to step forward to personally explain to you what I know is the truth. Please consider and determine for yourself that La Siesta was not legally entitled to the pre-1995 credits and that the 1995 law should not have caused the abatement of La Siesta's pre-1995 liability. I am confident that when these articles and the issues they raise are examined . . ., the distortions and false accusations in them will become apparent.
'La Siesta was not legally entitled to tax credits that it claimed. While the construction of its facility commenced in June of 1982, the enterprise zone was not designated until October of 1982. Because the facility was established well before the enterprise zone designation, La Siesta did not qualify for the enhanced enterprise zone credits. . . . [The letter proceeds with a paragraph explaining the error in law applied to La Siesta's return.]
. . . .
'It is evident that S. Lucky DeFries misled you and your staff to the erroneous conclusion that La Siesta's assessment should be abated. Many of the statements in the La Siesta's article are false, and I assume that Mr. DeFries made the same and other misstatements to you. . . .
'There have been other false accusation[s] that I am unfair. . . . When the specific facts are examined for La Siesta, it should become clear to you that the criticism being leveled at me is totally unwarranted and that the abatement of La Siesta's assessment was in fact illegal. Although I certainly do believe in providing fair and courteous service to Kansas taxpayers, this does not include allowing a taxpayer to circumvent the law and it never will.
'As a lawyer for the State of Kansas, I believe it is my duty to represent the state to the best of my ability. If there is a problem resulting from the enforcement of the present law, the remedy should be change in the law rather than a direction to the Department's staff to bend the law or grant favors under the law.
'Because I have a great deal of respect for you as a thoughtful and fair person and I believe that the erroneous decision to abate the La Siesta assessment was caused by reliance upon the misrepresentations of Mr. DeFries, I am addressing these matters to you personally. . . .'
"The attached Memorandum to this letter provided in part:
'In November and December of 1996, I have been the object of several personal attacks in the Topeka Capital Journal. These attacks are unfair and untrue. I believe they have been orchestrated in large part by S. Lucky DeFries. . . .
[The next 11 paragraphs contain information on Plaintiff's employment with the Kansas Department of Revenue and his service on the MTC Litigation Committee.]
'Recent Background. After you took office, I believe some taxpayers thought that I would be forced to leave. . . . I have no doubt that you have received a lot of complaints about me, simply because the nature of my work is largely adversarial and because of the attraction of taxpayers pursuing political influence to circumvent the administrative hearing process. . . .
'Perhaps in a response to a memo from you, Richard Oxandale told me on October 14, 1996, that Secretary LaFaver wanted me to be relieved of responsibility for my tax appeals, which is most of what I do. The taxes at issue in my appeals are currently roughly $100 million. I met with LaFaver on October 16th. The attached memo [] dated November 4, 1996 describes these two meetings, which were rather odd. On November 4th we met again and I said to them that I would not permit this injustice to be done to me. We never did discuss any particular issues or complaints. This led me to believe that LaFaver was possibly going to attack me to deflect criticism against the Department. LaFaver and Oxandale both said throughout all these meetings that they thought my work performance was otherwise excellent.
[The memo then lists eight different newspaper articles and their publication date. The memo then blames DeFries' influence on the Governor as the reason for the eventual concession by Secretary LaFaver of the La Siesta credits issue. The memo then discusses in detail how each of the eight newspaper articles is untrue.]
'Where We Appear to Be Going. Anti-government and anti-tax attitudes, combined with Mr. DeFries' demagogic lobbying and false accusations appear to be inciting new legislation to irrationally punish the Department of Revenue and its employees. This irrational anger and the false accusations which serve to inflame them are a very poor basis for responsible legislative action.
[The memo then discusses three questions Plaintiff feels need to be asked in order to address Kansas' tax rates and then discusses three causes of taxpayer perceptions of unfairness which have been eliminated--foreign dividends, interest rate on tax underpayments at 18%, windfall profits taxes.]
'I know that a system of taxation based upon false accusation, intimidation, political influence and corruption is something you would like to avoid. I think we all need to take a time out to determine what is really happening here and to determine what action is and is not appropriate.'
"4. On December 30, 1996, Plaintiff delivered another memo to Mr. Oxandale, setting forth his analysis of a settlement offer made by the taxpayer in Tax Appeal A. He stated he did not believe Taxpayer A was legally entitled to a refund and that the settlement offer should be declined.
"5. On January 8, 1997, Secretary LaFaver sent a letter to Plaintiff stating in relevant part:
'I am in receipt of your unfortunate correspondence to the Governor regarding any array of tax issues at the Department of Revenue. In that correspondence you make a number of extremely serious allegations and characterization of events that seem to compromise your ability to fairly and judiciously represent the Kansas Department of Revenue as a tax attorney. I have counseled you that, while you are knowledgeable in corporate tax law, you have a problem acknowledging weaknesses of your cases. Your zeal to "win" can detract from a fair and sensible public policy outcome.
'Your letter illustrates better than any allegation I have heard you insensitivity to dealing with taxpayers in an unemotional and professional manner. You have imagined events that did not occur, and you have characterized actions of the Governor and me that I took with full legal advice as "illegal."
'That you chose to send such a letter to the Governor without discussing it with General Counsel or me reflects poorly upon your judgment and your willingness and ability to work as a member of this team. Clearly the letter required a thorough review of matters alluded to in the letter as well as other matters relating to the fairness and propriety of actions the department has taken in corporate tax litigation. This review must be and must appear to be professional and impartial. In order to assure the required impartiality, it will not be appropriate for you to continue your duties while this review is conducted.
'Accordingly, this letter is to inform you that you are suspended from employment, with pay . . . .
. . . .
'I sincerely regret having to take this action. However, your actions have left me no choice.'
"6. On February 6, 1997, Plaintiff filed an appeal with the Kansas Civil Service Board. He contended that his suspension was in violation of K.S.A. 1996 Supp. 75-2973, the Kansas 'whistleblower' statute. The hearing on Plaintiff's claim has not yet been held and is not scheduled to be held until September of 1999.
"7. On March 17, 1997, Plaintiff sent another letter to Governor Graves. In this letter, he expressed concerns about a possible illegal tax refund in Tax Appeal A. This letter stated in part:
'I am writing to inform you that in a currently pending corporate income tax administrative appeal ('Appeal A') it is apparent that Secretary LaFaver or Richard Oxandale, or both, intend to act so as to violate the law or violate their legal obligation to the State. The anticipated violation is likely to result in substantial injury to the State through the payment of an illegal refund, which could exceed $1.0 million in Appeal A.
. . . .
'In providing professional, legal representation in the course of my employment with the State of Kansas, the State of Kansas has always been and is my client. While Secretary LaFaver and Mr. Oxandale may have their own opinions regarding the La Siesta appeal, Appeal A and B or other tax appeal, it is my duty to differ with their opinions when they cause the tax laws to be violated.
'Please act to prevent Secretary LaFaver and Mr. Oxandale from causing an illegal refund to be issued in Appeal A.'
"8. On May 9, 1997, Secretary LaFaver sent Plaintiff an eleven-page letter. It stated in part:
'This is to advise you that I have made the decision to propose the termination of your employment as a staff attorney with the Kansas Department of Revenue. . . . It is my belief that your actions as an attorney with this department have evinced an overall lack of judgment, insubordination, violation of confidentiality in revealing private tax matters and matters concerning our former attorney-client relationship, acting contrary to the interests of your client and exhibiting personal conduct detrimental to the state service which has caused undue disruption of the normal operation and proper functioning of this Department, all and each of which constitutes gross misconduct on your part, and conduct grossly unbecoming an attorney with this Department.
'The effective date of your proposed termination will be May 16, 1997.
. . . .
'You are offered the opportunity to reply in writing, or appear in person, or both, before me or my designee, on the issue of your proposed dismissal. If you wish to reply in writing, your correspondence must be received before May 16, 1997. If you wish to appear in person, you may appear in the Office of the Secretary at 1:30 p.m. on Thursday, May 15, 1997. You may represent yourself or be represented by a person of your choice. If you wish to appear in person you must notify the Director of Personnel at least one working day in advance of the hearing, in this case, Wednesday, May 14, 1997. If you wish to appear in person, represented by counsel, the Wednesday, May 14, 1997, notification must identify the name of the counsel or firm representing you.'
. . . .
"9. On June 6, 1997, Plaintiff filed an appeal with the Kansas Civil Service Board concerning his termination. His termination appeal has been consolidated with his suspension appeal and both are currently pending.
"10. On June 12, 1997, an article appeared in the Topeka Capital Journal regarding Plaintiff's termination from the Department. The article quoted several passages from Secretary LaFaver's termination letter.
. . . .
"12. Defendant Secretary Karla Pierce is current Secretary of the Department of Revenue."
Additional facts will be stated in our analysis as needed.
Show cause order
After oral argument, the court requested and both sides responded to our show cause order that raised the following additional questions:
"1. Why appellant's appeal as to his issue contending the right to recover for the claimed violation of his United States and Kansas constitutional right of free speech should not be dismissed in light of the inherent sovereign immunity of the State of Kansas. See e.g., Alden v. Maine, 527 U.S. 706, 144 L. Ed. 2d 636, 119 S. Ct. 2240 (1999); Schall v. Wichita State University, [269 Kan. 456, 7 P.3d 1144] ( 2000), and Goldbarth v. Kansas State Board of Regents, [269 Kan. 881, 9 P.3d 1251] (2000).
"2. (a) Why appellant's appeal as to his issue raising a common-law 'whistleblowing' claim for relief should not be dismissed under the alternative remedies doctrine because K.S.A. 75-2973 provides a classified civil service employee an adequate alternative remedy and thereby precludes the common-law remedy, or in the alternative,
(b) Why appellant's appeal as to his issue raising a common-law 'whistleblowing' claim for relief should not be dismissed for failure to exhaust his administrative remedies available and as established by K.S.A. 75-2973 and the Kansas Civil Service Act. See e.g., Pecenka v. Alquest, 232 Kan. 97, 652 P.2d 679 (1982)."
The parties' responses and the questions raised will be discussed as they relate to the issues raised by this appeal.
Standard of review
The manner in which motions to dismiss should be reviewed was recently set forth in Ripley v. Tolbert, 260 Kan. 491, Syl. ¶¶ 1, 2, 921 P.2d 1210 (1996), where we said:
"Disputed issues of fact cannot be resolved or determined on a motion to dismiss for failure of the petition to state a claim upon which relief can be granted. The question for determination is whether in the light most favorable to plaintiff, and with every doubt resolved in plaintiff's favor, the petition states any valid claim for relief. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim.
"In considering a motion to dismiss for failure of the petition to state a claim for relief, a court must accept the plaintiff's description of that which occurred, along with any inferences reasonably to be drawn therefrom. However, this does not mean the court is required to accept conclusory allegations on the legal effects of events the plaintiff has set out if these allegations do not reasonably follow from the description of what happened, or if these allegations are contradicted by the description itself."
In Noel v. Pizza Hut, Inc., 15 Kan. App. 2d 225, 230-233, 805 P.2d 1244, rev. denied 248 Kan. 996 (1991), which relied on Bruggeman v. Schimke, 239 Kan. 245, 247-48, 718 P.2d 635 (1986), the court applied the general rule for reviewing motions to dismiss for failure of a party to state a claim for relief:
"[I]t is our duty to determine whether those pleaded facts and inferences state a claim, not only on the theory which may be espoused by the plaintiffs, but on any possible theory we can divine.
"There are sound reasons for exercising judicial skepticism towards dismissal of a petition for failure to state a claim prior to the completion of discovery." 15 Kan. App. 2d at 231.
IS PRAGER'S 42 U.S.C. § 1983 CLAIM SEEKING ONLY DECLARATORY AND INJUNCTIVE RELIEF SUBJECT TO DISMISSAL?
Exhaustion of administrative remedies
We first consider the trial court's ruling dismissing Prager's § 1983 claim because he was seeking identical relief before the Kansas Civil Service Board and because that available remedy was deemed to be adequate and must be exhausted before a state court action could be commenced. There is considerable merit in such a holding as we have uniformly held that the KCSA provides a complete procedure for administrative review in cases where a state employee complains of a wrongful dismissal; in such case, the dismissed employee is ordinarily required to exhaust available administrative remedies before bringing an independent action to challenge his dismissal. See Pecenka v. Alquest, 232 Kan. 97, Syl. ¶ 4, 652 P.2d 679 (1982). Unfortunately, this issue is not disposed of so easily because there is a substantial body of case law, much of it before the United States Supreme Court, that relates to this precise issue where relief is requested based on the provisions of 42 U.S.C. § 1983.
Before dealing directly with the precise arguments of the parties on the question of exhaustion of administrative remedies, we briefly turn to the provisions of 42 U.S.C. § 1983, which provides in pertinent part:
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . ."
As was stated in Swinehart v. City of Ottawa, 24 Kan. App. 2d 272, 275, 943 P.2d 942 (1997), "42 U.S.C. § 1983 is not itself a source of substantive rights, but rather a method for vindicating federal rights elsewhere conferred. [Citations omitted.]" A § 1983 claim has two essential elements: (1) whether the conduct complained of was committed by a person acting under color of state law, and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), overruled in part on other grounds Daniels v. Williams, 474 U.S. 327, 330-31, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986). Both state and federal courts are proper forums for such actions. Gumbhir v. Kansas State Board of Pharmacy, 231 Kan. 507, 509, 646 P.2d 1078 (1982), cert denied 459 U.S. 1103 (1983).
States are not "persons" within the meaning of § 1983, and neither are state officials sued in their official capacity for money damages or other retroactive relief. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989); Americare Properties, Inc. v. Whiteman, 257 Kan. 30, 51-52, 891 P.2d 336 (1995).
The holding in Will that neither a State nor its officials acting in their official capacity are "persons" under § 1983 referenced footnote 10, which states:
"'Of course a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because 'official-capacity actions for prospective relief are not treated as actions against the State.' Kentucky v. Graham, 473 U.S., at 167, n. 14; Ex parte Young, 209 U.S. 123, 159-160 (1908). This distinction is 'commonplace in sovereign immunity doctrine,' L. Tribe, American Constitutional Law § 3-27, p. 190, n. 3 (2d ed. 1988), and would not have been foreign to the 19th-century Congress that enacted § 1983, see, e.g., In re Ayers, 123 U.S. 443, 506-507 (1887); United States v. Lee, 106 U.S. 196, 219-2