An extraordinary dissent in which the chief judge of the 2nd U.S. Circuit Court of Appeals said he hadn't even bothered to read the majority opinion appears to reflect a deep-rooted distaste for “symbolic” justice in civil-rights cases.

The 2-1 majority ruled last week that a student-speech case against officials of a New York City college could go to trial after 10 years of litigation. The plaintiffs -– former student journalists at the College of Staten Island -– are seeking only nominal compensatory damages of $1 from each of the defendants and injunctive relief.

There is a triable issue, Judge Guido Calabresi wrote for the majority, as to whether the school president is immune from liability for cancelling a student government election because of content published in a school newspaper.

Chief Judge Dennis G. Jacobs, known as one of the more conservative judges on the court, started his dissent by conceding that “this short opinion of mine does not consider or take into account the majority opinion. So I should disclose at the outset that I have not read it.”

“[T]his is not a case that should occupy the mind of a person who has anything consequential to do,” he fumed. With only nominal damages at stake, he continued,

the majority will impose on a busy judge to conduct a trial on this silly thing, and require a panel of jurors to set aside their more important duties of family and business in order to decide it.

While Jacobs also devoted some space to explaining his disagreement on the merits of the immunity issue, the case presented another opportunity for him to air his disparaging view of nominal damages.

In Amato v. City of Saratoga Springs, 170 F.3d 311 (1999), the 2nd Circuit reversed the dismissal of a police misconduct claim even though the plaintiff would not be able to recover damages of more than $1.

“[W]hile the monetary value of a nominal damage award must, by definition, be negligible,” the opinion said, “its value can be of great significance to the litigant and to society” and “a litigant is entitled to seek symbolic vindication” for violation of constitutional rights.

Jacobs concurred in the result, but said a trial would be “a wasteful imposition on the trial judge and on the taxpayers and veniremen of Saratoga Springs” and, given the “trivial amount at issue,” would “benefit the plaintiff only as an act of spite designed to inflict expense on the municipality and compel deference and attention to himself.”

Symbolism obviously continues to have no value for Jacobs. But the U.S. Supreme Court has clearly established nominal damages as a remedy, saying it “recognizes the importance to organized society that [constitutional] rights be scrupulously observed.” Carey v. Piphus, 435 U.S. 247 (1978).

In Jacobs's latest diatribe against nominal damages, which cites his concurrence in Amato, he shows an alarming disrespect for his colleagues by mocking them, in effect, for following the law.

By Matthew Heller
7/16/07