Opposition Brief — Florida Department of Highway Safety & Motor Vehicles v. Sims

‘ Supreme Court, U.S.

n) FILED

JUL 31 1983

No. 88-1950

F, SPANIOL, JR.

CLERK

==

In The

Supreme Court of the United States

October Term, 1989

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STATE OF FLORIDA, DEPARTMENT OF HIGHWAY

SAFETY AND MOTOR VEHICLES, and CHARLES J.

BRANTLEY, DIRECTOR, DIVISION OF MOTOR

VEHICLES,

Petitioners,

MYRA HOLLADAY SIMS and

FLORIDA IMPORT AND COMPLIANCE ASSOCIATION,

Respondents.

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On Petition For Writ Of Certiorari To The United

States Court Of Appeals For The Eleventh Circuit

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BRIEF OF RESPONDENTS SIMS AND FICA

IN OPPOSITION

Lp.

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Rosert P. SmItu, JR.

Counsel of Record

Ceceuia C. SMITH

123 S. Calhoun Street

Post Office Box 6526

Tallahassee, Florida 32314

(904) 222-7500

for Respondents

COCKLE LAW BRIEF PRINTING CO, my 225-6964

OR CALL COLLECT (402) 342

QUESTIONS PRESENTED:

I. The Eleventh Amendment question, on which this

brief does not oppose review, is better stated in Respondents’

Cross-Petition in No. 89-19, Question I, or it may be divided

thus:

A. Does the Eleventh Amendment immunize a

State from suit by its own citizens in Federal Court seeking

only declaratory and injunctive relief against a statute violat-

ing on its face an express prohibition by Congress, “No state

shall... ”?

B. If a State’s defense as “sovereign” is avoidable

by suing a party surrogate, shall the State be deemed to have

waived that defense, asserted for the first time on appeal, by

objecting below to the joinder of a party surrogate, its Attor-

ney General, and securing his dismissal from the case?

C. May a Court of Appeals, having induced the

Attorney General as counsel for a State agency to assert that

defense for the first time on its own appeal, remedy same by

joining as party surrogate an officer of that agency?

II.. When Congress has expressly preempted State reg-

ulation, is that preemption vitiated by the State’s claimed

purpose to be enforcing what it considers to be federal law?

Ill. When claimants are injured in fact by preempted

State regulation, do they lack standing to sue if similar injury

might have occurred under authentic Federal regulation?

IV. Must a preempted State statute be divided and

some part saved when it does not appear the State would

have enacted it, and preempting the whole avoids other

constitutional issues?

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TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ....

TABLE OF CONTENTS..... ee ii

TABLE OF AUTHORITIES..... . iii

SIALTUIBS INVERN 659550 d cha nee neees eee

STATEMENT OF THE CASE............ a

ARGUMENT OPPOSING THE WRIT..... | ester oe.

II. Opposing the Writ on Question II, “The Clean

Air Act does not preempt the State’s tradi-

tional regulation of the highways.”.......... 10

III. Opposing the Writ on Question III, Asserted

EPA restrictions as dissolving Respondents’

sn errr eer 13

IV. Opposing the Writ on Question IV, Whether

Florida’s role as Safety Act enforcer must be

ene Tr Or 16

ili

TABLE OF AUTHORITIES

Page

CASEs:

Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855,

Os 6.5 6o6 cava VUNeeuesasoeae ane 16

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L.Ed. 23

eI cae Sheek RRMA Fes 6b0 Ey Oe wR ew 10, 11

Motor and Equip. Mfrs. Ass‘n, Inc. v. Envtl. Protec-

tion Agency, 627 F.2d 1095 (D.C. Cir. 1979), cert.

denied, 446 U.S. 952, 100 S.Ct. 2917, 64 L.Ed.2d

Cube che T AE xe SR ao dd 5s Keene ek a 5

Sims v. Dept. of Highway Safety & Motor Vehicles,

U.S. D.C.N.D. Fla. (Final Judgment rendered

Dec. 30, 1985) (unreported, but contained in

Petitioners’ App D1, A219-35) ............... 7, 8, 16

Sims v. Dept. of Highway Safety & Motor Vehicles,

832 F.2d 1558 (11th Cir. 1987), reh’g granted, 840

F.2d 778 (1988) (panel decision)......... 9, 14, 15, 16

Sims v. Dept. of Highway Safety & Motor Vehicles,

862 F.2d. 1449 (11th Cir. 1989) (in banc decision)

PERCE ee GUabphed ees tec tus ee cscict asses an 3, 15, 16

Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45

Ge ge | Serre rere Terrier rrr rr errr T 15

STATUTES:

Fla. Stat. § 320.02(9) (1985), (1987) recodified as

Pe eLeG) GAOO OUDD.) ..... 2... ccs cce sence passim

ra 1, 5, 10

i UD sips ahaa vinnstecesecsenesveseeseas 5

ee SO BOD scree bsbvtserseseneussanss 10

iv

TABLE OF AUTHORITIES —- Continued

Page

FEDERAL REGULATIONS AND OFFICIAL AGENCY STATEMENTS:

19 C.F.R. § 12.73(b)(5)(x) (1985) .. 0. eee 2

19 CER. § 12. GOQDMI MGM) (1965) .... 22... cc cee. 2

40 C.F.R. § 85.1507 (1985) (1987) (EPA rules

Se MDs 5 4b eek ak va eck ee eee ee 4,5, 16

40 C.FR. § 85.1501-.1515 (1988) (EPA rules eff.

Pk sare ere ee ne re hee eg 6

48 Fed. Reg. 16,486 (Apr. 18, 1983) EPA statement

ek. er ere errr ener 2

52 Fed. Reg. 36,136 (Sept. 25, 1987) EPA statement

of new rules codified 40 C.FR..................... 2

STATUTES INVOLVED

The Clean Air Act, 42 USC § 7543(a), provides:

No state . . . shali adopt or attempt to enforce any

standard relating to the control of emissions from

new motor vehicles . . . subject to [the Clean Air Act].

No state shall require certification, inspection, or any

other approval relating to the control of emissions

from any new motor vehicle . . . as condition prece-

dent to the initial retail sale, titling (if any), or regis-

tration of such motor vehicle . .

Florida Statute § 320.02(9), Fla. Stat. (1985), (1987),

recodified as § 320.02(10) (1988 Supp.), provides:

320.02 Registration required; application for reg-

istration; forms. —

(9) Before a motor vehicle which has not been

manufactured in accordance with the federal Clean

Air Act and the federal Motor Vehicle Safety Act can

be sold to a consumer and titled and registered in

this state, the motor vehicle must be certified by the

United States Customs Service or the United States

Department of Transportation and the United States

Environmental Protection Agency to be in compli-

ance with these federal standards... .

4.

vw

STATEMENT OF THE CASE

This Statement is made necessary by the inaccurate

characterizations throughout the Petition of federal laws

and regulations that Florida by its statute would arrogate

to its own superintendence.

During the year 1985 when Sims and FICA sought

and won relief in the U.S. district court, some 68,000

vehicles like Sims’s old Mercedes-Benz, built to German

standards and initially marketed abroad, were granted

entry to the United States under joint regulation by Cus-

toms, the Environmental Protection Agency (EPA) and

the National Highway Traffic Safety Administration

(NHTSA).! Customs released those cars to importers

under the usual form of bond, with added undertakings

to conform the engine to EPA emission standards by

adding a catalytic converter, burning only unleaded gas-

oline; and to install U.S.-approved headlights, seatbelt

anchors, door beams, etc., as required by NHTSA in the

Federal Motor Vehicle Safety Standards (FMVSS). 19

C.FR. § 12.73(0)(5)(x); § 12.80(b)(1)(iii) (1985).

Thirty thousand imports in 1985, nearly half the total

that year, were exempted from EPA compliance by the

agency’s “Five Year Personal Use Provision” allowing a

“first-time individual importer,” among them Respondent

Sims, to import an older car for personal use without

modification.2 “A reduction in paperwork burden” was

1 EPA referred in 1987 to “the vastly increased volumes of

nonconforming vehicles imported annually (from 1500 in 1980

to about 68,000 in 1985).” So speaking while this case was

before the Eleventh Circuit, EPA promulgated an entirely new

set of rules effective July 1, 1988: “Air Pollution Control;

Importation of Nonconforming Motor Vehicles and Motor

Vehicle Engines,” 52 Fed. Reg. 36,136, 36,139 (Sept. 25, 1987),

codified at 40 C.FR. § 85.1501-.1515 (1988).

2 In 1983 EPA recorded in Federal Register its policy since

1981 “exercis[ing] its enforcement discretion by not taking

enforcement action . . . against an individual importing a

vehicle at least five model years old, who has not imported a

nonconforming vehicle since the effective date of the Clean Air

Act of 1970... .” “Notice of Revised Administrative Procedures

and Enforcement Policy,” 48 Fed. Reg. 16,486 (Apr. 18, 1983).

an EPA goal in that policy, 48 Fed. Reg. 16,486 (1983), and

EPA achieved it in 1985, the year when imports soared on

new highs of Dollar purchasing power abroad. EPA sim-

ply checked the importer’s name against a list of those

who had already imported such a car, and exempted

those who had not.? The compliance proofs sent to EPA

were thus limited to those of new cars entering commer-

cial markets. EPA was able to issue approvals even for

nonexempt cars within three to six weeks (R4-42-88).

In May 1985 Respondent Sims bought and imported

an older model Mercedes qualifying for her one-time EPA

exemption. Automatically, EPA issued its exemption let-

ter releasing EPA’s interest in her bond. Ct. App. in banc

op., 862 F.2d text at fn. 5, A15. Sims had her Safety Act

devices installed at once, and mailed the proofs to

NHTSA. Florida meanwhile refused Sims and others like

her a tag and title.

NHTSA had no exemption policy, so had to deal with

compliance proofs for ali 68,000 imports that year. By

mid-1985 NHTSA had a backlog of more than 14,000 sets

of photographs and papers from conversion shops

nationwide, proving safety devices newly installed in

individual cars. Dist. Ct. Op., A222. NHTSA required

three to four months, even up to a year, to examine all the

paperwork and issue a form letter releasing NHTSA’s

interest in the importer’s bond.

3 Id. at 16,487: “[A]ny individual who imports a vehicle

that would qualify must . . . post a bond with Customs at the

time of entry. .. . EPA will then determine if this policy applies

to that individual and, if so, will ask Customs to release the

EPA obligation on the bond.”

The delay by NHTSA for several months was unim-

portant in NHTSA’s regulatory scheme to any importer

who had no wish to sell his or her car. (Indeed EPA

already forbade its exempted importers from selling

within two years, Ct. App. in banc op., 862 F.2d at 1453

fn. 5, A15). Neither the Safety Act nor NHTSA placed any

restriction on tagging, titling and operating a car from the

moment of importation — not even before the safety

devices were installed, and the proofs sent to NHTSA. Ct.

App. panel op., 832 F.2d text at 1563, fn. 7 at 1564,

quoting D.O.T. statement to Congress (A122-23).

EPA’s rule on the other hand prohibited driving

before the car “has been granted final admission.” 40

C.F.R. § 85.1507 (1985), (1987):

A motor vehicle . . . conditionally admit-

ted . . . shall be stored and shall not be operated on

the public highways or sold until such vehicle . . . has

been granted final admission... .

This “final admission” event became the focus of

Florida’s pose as enforcer of federal law and EPA policy.

So far as EPA was concerned, its exemption of such cars

as Sims’s, or its approval of compliance by nonexempted

cars, ended EPA’s inquiry. That was its “final admission”

ending EPA’s § 85.1507 prohibition of driving. Both the

agency’s exemption letter and its modification-approval

letter assume the car will then be registered anywhere but

California, the only state not preempted by § 7543(a).4

4 PX 8B EPA’s modification approval letter adds a “NOTE

TO IMPORTER: This is an important document. Please keep a

copy with the vehicle registration at all times” (e.a.). PX 8A

(Continued on following page)

But Florida, acting as if it were a territorial surrogate,

interpreter and enforcer of federal law, denied these

import cars tags and titles (refused only those, and

granted any domestic smoking wreck a tag, title, and

welcome to the highway, R4-42-18) saying EPA’s “final

admission” dcesn’t happen until NHTSA too, months

later, writes a bond release letter. [The Department

migrated far from its statutory text, confusing its own

minions and the public, in search for some federal paper

approximating “must be certified . . . to be in compliance

with these federal standards,” Fla. Stat. § 320.02(9).]

Florida declared as EPA policy, in other words, that

after EPA exempted some 30,000 imports from emission

standard compliance in 1985, and approved compliance

by 38,000 more, EPA yet insisted that all 68,000 remair

“stored” and not operated, 40 C.FR. § 85.1507 (1985),

until another agency that never prohibited driving at all

took some distant action in its own regulatory realm.

Florida produced no evidence of this at trial, only

hand-wringing lawyers who spoke ominously of federal

violations as does their Petition, passim. Florida had no

evidence that EPA enforced or intended to enforce any

(Continued from previous page)

EPA’s exemption letter advises, “We have been informed by

the California Air Resources Board that a used vehicle . . . may

not be registered in California unless it is first brought into

conformity with California or Federal emission requirements”

(e.a.). California alone, whose regulation predates the 1966

Clean Air Act, is excused by 42 USC § 7543(b) from preemption

by § 7543(a). Motor and Equip. Mfrs. Ass’n, Inc. v. Envtl. Protec-

tion Agency, 627 F.2d 1095, 1101 fn. 1 (D.C. Cir. 1979).

such absurdity, and could not suggest why, if that were

EPA policy, tens of thousands of owners like Sims across

the Nation, their cars locked in garages awaiting inconse-

quential NHTSA paper, remained quiet and servile

throughout the year, unknown to Congress, EPA and the

public world.

The expert and anecdotal testimony in the district

court trial was uncontradicted: EPA’s § 85.1507 reference

to “final admission” referred to its own act of approving

catalytic converter proofs or declaring an equivalent

exemption. EPA later gave further evidence of this in

1987 rulemaking, repeatedly using the term “final admis-

sion” in reference to EPA’s own actions, none other.°

The U.S. district court wisely found it unnecessary to

declare what was consistent and inconsistent with federal

law in Florida’s unauthorized pose as EPA’s interpreter-

enforcer. Rather the court held the Florida statute was

expressly preempted by the Clean Air Act, preempted as

well by the Safety Act’s bestowal of enforcement powers

> References in the 1987 rule to “final admission” include

§ 85.1502(8) defining a nonconforming car as one not “finally

admitted into the United States under the provisions of” EPA’s

own rules; § 85.1503 granting or denying “final admission”

solely in terms of conformity with EPA’s own standards;

§ 85.1504(a) which conditions “final admission” exclusively on

adequate report to “the [EPA] Administrator”; § 85.1505(a)

which provides a car “may be finally admitted into the United

States upon approval of the certificate holder’s application to

the [EPA] Administrator” (e.a.); § 85.1505(b) and (c) stating

when “EPA approval for final admission . . . shall be presumed

not to have been granted” and when “EPA approval for final

admission . . . shall be presumed to have been granted”; and so

on.

exclusively on NHTSA, and a plain violation of the dor-

mant Commerce Clause as well, a rare unambiguous

attempt by a State to regulate a sector of Foreign Com-

merce, Foreign Commerce as such, flowing through its

ports. Dist.Ct. Op. App.D1, A227-28, as to the Clean Air

Act (emphasis by the court):

The state argues . . . that the challenged statute

simply “insures that new cars coming on to Florida’s

highways comply with the Clean Air Act.” ... The

state fails to recognize, however, that it is not its role

to enforce such standards at the stage it seeks to do

so. It does not matter if the state has enacted stan-

dards that are different or identical to those enacted

by the federal government at this point. The intent of

Congress is very clear and specific: Prior to the first

sale [after importation], the states are preempted

from enacting any regulatory or enforcement scheme

either of their own or to complement the federal scheme,

with specific regard to titling and registration.

Enforcement of the Clean Air Act before first sale is

the sole and exclusive prerogative of the federal

government... .

As to the Safety Act, Id. at A229, 235:

The state argues again that it . . . is in fact merely

requiring that the federal standards be met before a

vehicle is allowed onto the state’s highways.

This court is not swayed by such concern for the

enfcrcement of federal law in this area. If one thing

has become clear during the resolution of this case, it

is that there is nothing in federal law to prohibit

states from enacting enforcement schemes of their

own to enforce the provisions of the Clean Air Act

and the Motor Vehicle Safety Act following the first

sale of the vehicle. . . . Indeed, Florida formerly had an

automobile inspection program to do just that... .

|

As to the Commerce Clause, Id. at A236, A237-38:

Even were the challenged Florida statute not pre-

empted by federal law, it would have to fail as it is a

burden on foreign commerce as prohibited by the

Constitution under Article I, section 8, clause 3.

The statute prevents the titling and registration

of vehicles which in turn limits the marketability of

the cars. To force an importer to use a different port

of entry, for example Savannah, Georgia, or Mobile,

Alabama, in order to receive registration and titles

from the relevant state authorities without having to

endure the trials and tribulations that Florida has

erected in their path destroys the common market of

commerce for the entire United States as established

by the Constitution. It is precisely this type of state

action that the Commerce Clause was designed to

prevent; thus the statute is constitutionally infirm. As

the state has presented no evidence that this law is

necessary to serve some special local consideration, it

cannot survive scrutiny under this section of the

Constitution.

The Court of Appeals deliberating the Department’s

appeal raised new questions of mootness, standing and

Eleventh Amendment - inciting the Eleventh Amend-

ment plea by the Department which is the subject of

Question I in this Petition, and Question I in Respon-

dents’ Cross-Petition, No. 89-19. The panel held on the

merits, one judge dissenting, that Florida Statute

§ 320.02(9) was expressly preempted by the Clean Air

Act, though not by the Safety Act,® but in any event was

¢ The panel Safety Act holding was that Florida “imposes

[no] additional requirements or burdens” not imposed by the

(Continued on following page)

entirely invalid for violation of the dormant Commerce

Clause. Sims v. Dept. of Highway Safety & Motor Vehicles,

832 F.2d 1558 (11th Cir. 1987).

The Court of Appeals in banc held Florida was

expressly preempted by the Clean Air Act but not by the

Safety Act, and found it unnecessary to rule on the dor-

mant Commerce Clause question.

A.

vy

ARGUMENT OPPOSING THE WRIT

Respondents do not oppose the Writ on Question I,

the Eleventh Amendment. Their Cross-Petition in No.

89-19 urges the Court to take and decide that Question

(more accurately stated in terms of the case), and to

decide as well whether Sims and FICA will then have

finally prevailed on a claim of right, privilege or immu-

nity secured to them by the Clean Air Act, requiring a fee

(Continued from previous page)

Safety Act, 832 F.2d at 1566, 1567. This unfortunate misconcep-

tion is traceable within the panel opinions to the dissenter’s

extensive reliance upon an incompetent private document -

“Automobile Importers Compliance Ass’n, Handbook of Vehicle

Importation” — which lay in the record after the Department

marked it for identification at trial but was unable to authenti-

cate it as evidence. The district court excluded the monograph

as unauthenticated hearsay after the identifying witness said

the document was wrong in precisely the respects relied on by

the dissenting judge, 832 F.2d at 1576 It. col., saying the “final

admission” referenced by EPA’s rule “occurs after Customs

receives bond release letters from the EPA and NHTSA and the

duty is liquidated.” After we called the error to the Court’s

attention, the illegitimate theory was for the most part excised

from the in banc opinions.

10

award under the Civil Rights Act, 42 U.S.C. §§ 1983 and

1988. Uniquely, the Clean Air Act not only preempts state

motor emissions regulation to a certain point (“No state

shall... ”) but also grants a particular right or privilege

to importers, or perhaps an immunity, which flows in

consequence of that preemption: Congressionally-secured

tags and titles notwithstanding any state’s law, or views

on federal law, relating to the control of emissions. 42

U.S.C. § 7543(a):

No state shall require certification, inspection, or any

other approval relating to the control of emissions

from any new motor vehicle as condition precedent

to the... . titling . . . or registration of such motor

vehicle. ...

The right, privilege or immunity thereby secured in the

importer, as Chief Justice Marshall once said, “convey[ed]

the right to which the privilege [of importation] is

attached, and in the exercise of which its whole value

consists.” Gibbons v. Ogden, infra.

II. Opposing the Writ on Question II, “The Clean Air

Act does not preempt the State’s traditional regula-

tion of the highways.”

Considering how Florida discriminates by § 320.02(9)

discretely against a small sector of Foreign Commerce, as

such, and freely tags, titles and opens its highways to any

other car regardless of condition, this question is hardly

pertinent.

The Petition asserts (p. 35) that Florida’s statute

“does not create or enforce air emission standards,” nor,

presumably, safety standards. Florida proposes rather

that “traditional regulation of the highways” includes its

11

authoritative interpretation and enforcement of laws

enacted by Congress regulating Commerce with Foreign

Nations. “Any vehicle not in compliance and inside the

customs territory of the United States is here illegally,”

Florida says Petition p. 38, also pp. 31, 37, 39, 42. Florida

therefore is not preempted by the express language of the

Clean Air Act: “No state shall... ”

Florida confuses its power as a state with regard to

safety and emissions in cars on its highways — a power

Florida chooses not to exercise — with the power Congress

has as regards some of those cars because to a point

specified by Congress they are instruments of Foreign

Commerce that Congress has chosen to protect under its

own exclusive regulation.

The only possible reason to grant the Writ on such a

Question as the State poses would be to seize a rare

opportunity to reaffirm the federalist principles that

enlivened Chief Justice Marshall’s opinion for the Court

in Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L.Ed. 23 (1824).

With clarity rarely achieved (or needed) since, Mar-

shall distinguished in “terms and nature” Florida’s power

from that of Congress and its agents such as EPA. 22 U.S.

at 197:

The power of Congress, then, comprehends navi-

gation within the limits of every state in the Union;

so far as that navigation may be, in any manner,

connected with “commerce with foreign nations, or

among the several states, or with the Indian tribes.”

It may, of consequence, pass the jurisdictional line of

New York, and act upon the very waters to which the

prohibition [by New York] now under consideration

applies...

At 199, 200:

.. . In imposing taxes for state purposes, they

[the states] are not doing what Congress is

empowered to do. .. . When, then, each government

exercises the power of taxation, neither is exercising

the power of the other. But, when a state proceeds to

regulate commerce with foreign nations . . . it is

exercising the very power that is granted to Con-

gress, and is doing the very thing which Congress is

authorized to do....

The matter in issue was (every law student learns)

New York’s asserted power upon its waterways to super-

vise, to permit or deter, boats employed by Gibbons “in

carrying on the coasting trade, under the act of Con-

gress.” 22 U.S. at 2. The analogy to the present case could

not be more clearly stated than by Chief Justice Marshall,

22 U.S. at 212-13:

It will at once occur, that, when a legislature

[Congress] attaches certain privileges and exemp-

tions to the exercise of a right over which its control

is absolute, the right must imply a power to exercise

the right. The privileges are gone, if the right itself be

annihilated. It would be contrary to all reason, and to

the course of human affairs, to say . . . that the state

of New York cannot prevent an enrolled and licensed

vessel, proceeding from Elizabethtown, in New Jer-

sey [or, Sims and FICA would add, from Germany],

to New York, from enjoying, in her course, and on

her entrance into port, all the privileges conferred by

the act of Congress; but can shut her up in her own port,

and prohibit altogether her entering the waters and ports

of another state... .

This section [of the Act of Congress] seems to the

court to contain a positive enactment, that the vessels

it describes shall be entitled to the privileges of ships

or vessels employed in the coasting trade. Those

privileges cannot be separated from the trade, and

13

cannot be enjoyed, unless the trade may be pros-

ecuted. The grant of the privilege is an idle, empty form,

conveying nothing, unless it convey the right to which the

privilege is attached, and in the exercise of which the

whole value consists. (Emph. added.)

The only significant differences between New York

there and Florida, here, are that Florida claims not to

deter this Commerce on its own authority, but on the very

authority of the United States; and whereas New York

offended only the dormant Commerce Clause, Florida in

order to “shut her up in her own port” refuses importers

the very license that Congress prohibits the states to

refuse. In every proper sense, then, “the privilege” of

importing goods in Foreign Commerce, granted Sims and

others by the United States, “is an idle, empty form,

conveying nothing,” for want of “the right to which the

privilege is attached, and in the exercise of which the

whole value consists.”

III. Opposing the Writ on Question III, Asserted EPA

restrictions as dissolving Respondents’ Standing.

This Question is the same as Question II, garbed in

other doctrine:

Very well, the argument goes, the Constitution for-

bids Florida to deny tags and titles to cars imported

under auspices of a preemptive Act of Congress and the

supervision of federal regulators; but the complaint of

Sims and FICA does not describe an Article III “case or

controversy” because, until EPA’s prohibition of driving

is lifted by NHTSA’s bond release letter, the real cause of

plaintiffs’ problem is not Florida’s meddling but EPA’s

prohibition.

14

4 44

Respondents’ “standing” was questioned in these

terms for the first time by the Court of Appeals panel

four months after ora! argument. The Clerk’s letter dated

February 18, 1987 (raising “mootness” and Eleventh

Amendment, as well) stated in relevant part:

The court requests supplemental briefing on the

following issues: (1) what are appellees’ obligations

under the Clean Air Act and... Safety Act... ; (2)

do either, or both, of these statutes or the regulations

preclude an importer of a gray market automobile

from titling, registering, or driving that automobile in

Florida prior to receipt of notice of compliance with

such laws from the United States Environmental Pro-

tection Agency, the United States Department of

Transportation, and the United States Customs Ser-

vice; (3) if the answer to (2) is yes, what injury, in an

article III standing sense, could appellees have sus-

tained as a result of Florida’s refusal to title and

register gray market automobiles prior to the issu-

ance of the above notices of compliance... ?

Though the panel majority eventually found Respon-

dents had standing, its—disposition of the issue was

affected by a most unfortunate disregard for the uncon-

tradicted evidence at trial. (Perhaps the court felt it was

not bound by the evidence and the usual presumptions,

since the “standing” issue it raised on appeal wasn’t

called that below.) More unfortunate still, the panel’s

“standing” discussion was dominated by reliance on an

incompetent third-party hearsay document someone

found in the record but not in evidence. The district judge

excluded it from evidence after the State’s identifying

witness said the document was in error on the only point

that mattered: EPA’s “final admission” did not, as the

paper said, depend on NHTSA’s bond release letter

(R4-42-128, 133). Details supra p. 8 fn. 6.

15

The panel’s discredited “standing” analysis was

abandoned by the court in banc, as Petitioner acknowl-

edges, Petition p. 49 fn. 11, and placed on another ground

entirely. The “standing” issue posed by Petitioners as

Question III was not, therefore, addressed by the Court of

Appeals in banc.

Its factual flaws aside, “standing” as conceived by

Petitioners would nullify the right of United States citi-

zens to insist that the United States government, rather

than a hostile State, exercise the powers of the United

States. The theory suggested is that it does not matter if

Florida arrogates EPA’s power to itself, EPA would have

exercised that power the same way (if, EPA being absent,

Florida can so persuade some federal judges). Therefore

no injury was caused plaintiffs by Florida, and there is no

“case or controversy.”

That reasoning would disown the federal judiciary of

jurisdiction in any case where a state’s persuasiveness

was equal to its effrontery posing as local arbiter of

federal law and policy. “In effect,” Justice Brennan said in

circumstances far less threatening to federalism, plaintiffs

“will not be permitted to prove what they have alleged

... because they have not succeeded in breaching, before

the suit was filed, the very barriers which are the subject

of the suit.” Warth v. Seldin, 422 U.S. 490, 523, 95 S.Ct.

2197, 45 L.Ed.2d 343 (1975) (dissenting op.).

Question III is unworthy of review because its factual

premise is false, because it was not addressed by the in

banc Eleventh Circuit, and because it is neither colorable

nor important as a matter of law.

16

IV. Opposing the Writ on Question IV, Whether Flor-

ida’s role as Safety Act enforcer must be saved.

While we cannot conceive how this Florida statute

can survive Foreign Commerce Clause scrutiny, and both

the district court (A236-38) and the Eleventh Circuit

panel (832 F.2d at 1568-69, A143-48) agreed it does not,

the in banc court avoided that decision, 862 F.2d at 1458,

fn. 13, by declaring § 320.02(9) entirely invalidated by the

Clean Air Act.

There is a certain propriety in this. There is no reason

to think the Florida Legislature would have enacted the

statute had it not thought EPA’s prohibition of driving

pending “final admission”, 40 C.F.R. § 85.1507 (1985), an

opportunity for State enforcement. NHTSA and the

Safety Act didn’t offer that inducement, indeed didn’t

restrict driving at all. What then remains of Florida Stat-

ute § 320.02(9) for Florida to enforce, with its reliance on

purported EPA restrictions now preempted?

The Eleventh Circuit majority plainly felt it prudent

to declare the whole statute invalid and remit the ques-

tion to the Florida Legislature, rather than to assume

unnecessarily that that body would wish its statute to

stand, shorn of pretense of enforcing an EPA prohibition.

Carter v. Carter Coal Co., 298 U.S. 238, 312, 56 S.Ct. 855, 80

L.Ed 1160 (1936). The Court also avoided a direct con-

struction of the dormant Foreign Commerce Clause by

placing its decision on grounds of the express preemption

by Congress.

Question IV is not worthy of review.

Ly.

wr

17

CONCLUSION

The Writ should be denied on Questions II, III and IV.

They are distracting, not substantial. Should the Court

grant review on Question I, and on Questions I and II of

the Cross-Petition, the Court will have every opportunity

to speak as necessary to the principles of federalism that

control Questions II, III and IV as presented by

Petitioners.

Respectfully submitted

Rosert P. Smoitn, Jr.

Counsel of Record

Crecetia C. SMITH

123 South Calhoun Street

Post Office Box 6526

Tallahassee, Florida 32314

(904) 222-7500

For Respondents

July 31, 1989