Opinion

JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE joins, dissenting.

A state statute cannot be considered 'inconsistent' with federal law merely because the statute causes the plaintiff to lose the litigation.

Robertson v. Wegmann, 436 U. S. 584, 436 U. S. 593 (1978). Disregarding this self-evident principle, the Court today holds that Wisconsin's notice of claim statute is preempted by federal law as to actions under 42 U.S.C. § 1983 filed in state court. This holding is not supported by the statute whose preemptive force it purports to invoke, or by our precedents. Relying only on its own intuitions about "the goals of the federal civil rights laws," ante at 487 U. S. 138, the Court fashions a new theory of preemption that unnecessarily and improperly suspends a perfectly valid state statute. This Court has said that "unenacted approvals, beliefs, and desires are not laws." Puerto Rico Dept. of Consumer Affairs v. Isla Petroleum Corp., 485 U. S. 495, 485 U. S. 501 (1988). Today's exercise departs not only from that unquestionable proposition, but even from the much more obvious principle that unexpressed approvals, beliefs, and desires are not laws.

Wisconsin's notice of claim statute, which imposes a limited exhaustion of remedies requirement on those with claims against municipal governments and their officials, serves at least two important purposes apart from providing municipal defendants with a special affirmative defense in litigation. First, the statute helps ensure that public officials will receive prompt notice of wrongful conditions or practices, and thus enables them to take prompt corrective action. Second, it enables officials to investigate claims in a timely fashion, thereby making it easier to ascertain the facts accurately and to settle meritorious claims without litigation. These important aspects of the Wisconsin statute bring benefits to governments and claimants alike, and it should come as no surprise that 37 other States have apparently adopted similar notice of claim requirements. App. to Brief for International City Management Association et al. as Amici Curiae 1a-2a. Without some compellingly clear indication that Congress has forbidden the States to apply such statutes in their own courts, there is no reason to conclude that they are "preempted" by federal law. Allusions to such vague concepts as "the compensatory aims of the federal civil rights laws," ante at 487 U. S. 141, which are all that the Court actually relies on, do not provide an adequate substitute for the statutory analysis that we customarily require of ourselves before we reach out to find statutory preemption of legitimate procedures used by the States in their own courts.

Section 1983, it is worth recalling, creates no substantive law. It merely provides one vehicle by which certain provisions of the Constitution and other federal laws may be judicially enforced. Its purpose, as we have repeatedly said, " was to interpose the federal courts between the States and the people, as guardians of the people's federal rights....'" Patsy v. Board of Regents of Florida, 457 U. S. 496, 457 U. S. 503 (1982) (quoting Mitchum v. Foster, 407 U. S. 225, 407 U. S. 242 (1972)) (emphasis added). For that reason, the original version of § 1983 provided that the federal courts would have exclusive jurisdiction of actions arising under it. See Civil Rights Act of 1871, ch. 22, § 1, 17 Stat. 13. This fact is conclusive proof that the "Congress, which enacted § 1983 over 100 years ago," ante at 487 U. S. 149, could not possibly have meant thereby to alter the operation of state courts in any way or to "preempt" them from using procedural statutes like the one at issue today.

State courts may now entertain § 1983 actions if a plaintiff chooses a state court over the federal forum that is always available as a matter of right. See, e.g., Martinez v. California, 444 U. S. 277, 444 U. S. 283, and n. 7 (1980). Abandoning the rule of exclusive federal jurisdiction over § 1983 actions, and thus restoring the tradition of concurrent jurisdiction, however, "did not leave behind a preemptive grin without a statutory cat." Puerto Rico Dept. of Consumer Affairs v. Isla Petroleum Corp., supra, at 485 U. S. 504. Congress has never given the slightest indication that § 1983 was meant to replace state procedural rules with those that apply in the federal courts. The majority does not, because it cannot, cite any evidence to the contrary.

In an effort to remedy this fatal defect in its position, the majority engages in an extended discussion of Patsy v. Board of Regents of Florida, supra. See ante at 487 U. S. 147 -149. Patsy, however, actually undermines the majority's conclusion. In that case, the Court concluded that state exhaustion of remedies requirements were not to be applied in § 1983 actions brought in federal court. The Court relied on legislative history indicating that § 1983 was meant to provide a federal forum with characteristics different from those in the state courts, 457 U.S. at 457 U. S. 502 -507, and it came only to the limited and hesitant conclusion that

it seems fair to infer that the 1871 Congress did not intend that an individual be compelled in every case to exhaust state administrative remedies before filing an action under [§ 1983],

id. at 457 U. S. 507 (emphasis added). Even this limited conclusion, the Court admitted, was "somewhat precarious," ibid., which would have made no sense if the Court had been able to rely on the more general proposition -from which the holding in Patsy follows a fortiori -that it adopts today.

Patsy also relied on the Civil Rights of Institutionalized Persons Act of 1980, § 7, 94 Stat. 352, 42 U.S.C. § 1997e, which ordinarily requires exhaustion of state remedies before an adult prisoner can bring a § 1983 action in federal court. The Court concluded that the

legislative history of § 1997e demonstrates that Congress has taken the approach of carving out specific exceptions to the general rule that federal courts cannot require exhaustion under § 1983.

457 U.S. at 457 U. S. 512 (emphasis added). This finding lends further support to the proposition that Congress has never concerned itself with the application of exhaustion requirements in state courts, and § 1997e conclusively shows that Congress does not believe that such requirements are somehow inherently incompatible with the nature of actions under § 1983.

For similar reasons, Brown v. Western R. Co. of Alabama, 338 U. S. 294 (1949), which is repeatedly quoted by the majority, does not control the present case. In Brown, which arose under the Federal Employers' Liability Act (FELA), this Court refused to accept a state court's interpretation of allegations in a complaint asserting a federal statutory right. Concluding that the state court's interpretation of the complaint operated to "detract from substantive rights' granted by Congress in FELA cases," the Court

simply h[e]ld that, under the facts alleged, it was error to dismiss the complaint, and that [the claimant] should be allowed to try his case.

Id. at 338 U. S. 296, 338 U. S. 299 (citations omitted). See also Garrett v. Moore-McCormack Co., 317 U. S. 239, 317 U. S. 249 (1942) ("Deeply rooted in admiralty as that right [to a certain presumption] is, it was a part of the very substance of [the plaintiff's] claim, and cannot be considered a mere incident of a form of procedure") (citations omitted). In the case before us today, by contrast, the statute at issue does not diminish or alter any substantive right cognizable under § 1983. As the majority concedes, the Wisconsin courts "will hear the entire § 1983 cause of action once a plaintiff complies with the notice of claim statute." Ante at 487 U. S. 145.

Unable to find support for its position in § 1983 itself, or in its legislative history, the majority suggests that the Wisconsin statute somehow "discriminates against the federal right." Ante at 487 U. S. 141. The Wisconsin statute, however, applies to all actions against municipal defendants, whether brought under state or federal law. The majority is therefore compelled to adopt a new theory of discrimination, under which the challenged statute is said to

conditio[n] the right to bring suit against the very persons and entities [ viz., local governments and officials] Congress intended to subject to liability.

Ante at 487 U. S. 144 -145. This theory, however, is untenable. First, the statute erects no barrier at all to a plaintiff's right to bring a § 1983 suit against anyone. Every plaintiff has the option of proceeding in federal court, and the Wisconsin statute has not the slightest effect on that right. Second, if a plaintiff chooses to proceed in the Wisconsin state courts, those courts stand ready to hear the entire federal cause of action, as the majority concedes. See ante at 487 U. S. 145. Thus, the Wisconsin statute "discriminates" only against a right that Congress has never created: the right of a plaintiff to have the benefit of selected federal court procedures after the plaintiff has rejected the federal forum and chosen a state forum instead. The majority's "discrimination" theory is just another version of its unsupported conclusion that Congress intended to force the state courts to adopt procedural rules from the federal courts.

The Court also suggests that there is some parallel between this case and cases that are tried in federal court under the doctrine of Erie R. Co. v. Tompkins, 304 U. S. 64 (1938). Quoting the "outcome-determinative" test of Guaranty Trust Co. v. York, 326 U. S. 99, 326 U. S. 109 (1945), the Court opines today that state courts hearing federal suits are obliged to mirror federal procedures to the same extent that federal courts are obliged to mirror state procedures in diversity suits. This suggestion seems to be based on a sort of upside-down theory of federalism, which the Court attributes to Congress on the basis of no evidence at all. Nor are the implications of this "reverse Erie " theory quite clear. If the Court means the theory to be taken seriously, it should follow that defendants, as well as plaintiffs, are entitled to the benefit of all federal court procedural rules that are "outcome determinative." If, however, the Court means to create a rule that benefits only plaintiffs, then the discussion of Erie principles is simply an unsuccessful effort to find some analogy, no matter how attenuated, to today's unprecedented holding.

"Borrowing" cases under 42 U.S.C. § 1988, which the Court cites several times, have little more to do with today's decision than does Erie. Under that statute and those cases, we are sometimes called upon to fill in gaps in federal law by choosing a state procedural rule for application in § 1983 actions brought in federal court. See, e.g., Wilson v. Garcia, 471 U. S. 261 (1985); Burnett v. Grattan, 468 U. S. 42 (1984). The congressionally imposed necessity of supplementing federal law with state procedural rules might well caution us against supplanting state procedural rules with federal gaps, but it certainly offers no support for what the Court does today.

Finally, JUSTICE WHITE's concurrence argues that Wisconsin's notice of claim statute is in the nature of a statute of limitations, and that the principles articulated in Wilson v. Garcia, supra, preclude its application to any action under § 1983. See ante at 487 U. S. 154 -156. Assuming, arguendo, that state courts must apply the same statutes of limitations that federal courts borrow under § 1988, the concurrence is mistaken in treating this notice of claim requirement as a statute of limitations. As the concurrence acknowledges, the 120-day claim period established by the Wisconsin statute does not apply if the local government had actual notice of the claim and has not been prejudiced by the plaintiff's delay. Ante at 487 U. S. 155, n. 3. The concurrence suggests that the Wisconsin statute nonetheless is equivalent to a statute of limitations, because the present case demonstrates that "the actual notice' requirement is difficult to satisfy." Ibid. I agree that a sufficiently burdensome notice of claim requirement could effectively act as a statute of limitations. The facts of this case, however, will not support such a characterization of the Wisconsin law. The court below said that no "detailed claim for damages" need be submitted; rather, the injured party need only

recit[e] the facts giving rise to the injury and [indicate] an intent... to hold the city responsible for any damages resulting from the injury.

139 Wis.2d 614, 630, 408 N.W.2d 19, 26 (1987) (citations omitted). It has not been suggested that petitioner tried to comply with this requirement but encountered difficulties in doing so. Indeed, it would have been easier to file the required notice of claim than to file this lawsuit, which petitioner proved himself quite capable of doing. Far from encountering "difficulties" in complying with the notice of claim statute, petitioner never tried.

As I noted at the outset, the majority correctly characterizes the issue before us as one of statutory preemption. In order to arrive at the result it has chosen, however, the Court is forced to search for "inconsistencies" between Wisconsin's notice of claim statute and some ill-defined federal policy that Congress has never articulated, implied, or suggested, let alone enacted. Nor is there any difficulty in explaining the absence of congressional attention to the problem that the Court wrongly imagines it is solving. A plaintiff who chooses to bring a § 1983 action in state court necessarily rejects the federal courts that Congress has provided. Virtually the only conceivable reason for doing so is to benefit from procedural advantages available exclusively in state court. Having voted with their feet for state procedural systems, such plaintiffs would hardly be in a position to ask Congress for a new type of forum that combines the advantages that Congress gave them in the federal system with those that Congress did not give them, and which are only available in state courts. Fortunately for these plaintiffs, however, Congress need not be consulted. The concept of statutory preemption takes on new meaning today, and it is one from which I respectfully dissent.