Cross Petition — Florida Department of Highway Safety & Motor Vehicles v. Sims

a

DUP ONIS VUUTT, U.de

: FILED

Be-19 |] JUN 30. 1989

JOSEPH F. SPANIOL, JR,

' CLERK

No. 88-___ ,

In The

Supreme Court of the United States

October Term, 1988

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MYRA HOLLADAY SIMS and

FLORIDA IMPORT AND COMPLIANCE ASSOCIATION,

Cross-Petitioners,

STATE OF FLORIDA, DEPARTMENT OF HIGHWAY

SAFETY AND MOTOR VEHICLES, and CHARLES J.

BRANTLEY, DIRECTOR, DIVISION OF MOTOR

VEHICLES,

Cross-Respondents.

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On Cross-Petition For Writ Of Certiorari To The United

States Court Of Appeals For The Eleventh Circuit

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CROSS-PETITION FOR CERTIORARI (RULE 19.5) OF

CROSS-PETITIONERS SIMS AND FICA

4

4

RosBeERT P. SMITH, JR.

Counsel of Record

Crcevia C. SMITH

123 S. Calhoun Street

Post Office Box 6526

Tallahassee, Florida 32314

(904) 222-7500

for Cross-Petitioners

COCKLE LAW BRIEF PRINTING CO,, (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED UNDER RULE 19.5°

1. The Eleventh Amendment question, reformulated to

the facts: On appeal from a District Court judgment gran-

ting declaratory and prohibitory relief only against a

State agency enforcing a State statute that directly vio-

lates the Clean Air Act and discriminates discretely

against a sector of Foreign Commerce by licensing pre-

requisites that importers cannot fulfill, did the Eleventh

Amendment require the Court of Appeals to dismiss the

case after the Court itself solicited an Eleventh Amend-

ment plea from an Attorney General who had been per-

sonally joined as party defendant in the District Court,

and against whom relief was sought, but who then was

dropped as a party as he and the State insisted when they

interposed no Eleventh Amendment defense to the fed-

eral claims?

2. Attorney’s Fee question, presented as fairly included

in any certworthy Eleventh Amendment question: When

injured citizens of a State prevail in an action to enforce

the Clean Air Act’s express prohibition of State licensing

impediments to the federally-controlled flow of Foreign

Commerce through ports of the United States, is not the

Clean Air Act to be considered as expressly securing

citizens in a federal right, privilege or immunity as

regards that forbidden activity under color of State law,

such that prevailing claimants should be awarded attor-

ney’s fees against the defendant State agency, 42 USC

§§ 1983 and 1988?

* This cross-petition is a companion to No. 88-1950, a petition

for writ-of certiorari by cross-respondents here, seeking review

of the same Court of Appeals judgment. Cross-petitioners as

respondents in No. 88-1950 will file a brief there opposing the

writ except on the Eleventh Amendment question.

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TABLE OF CONTENTS

Page

OPINIONS BELOW... ......). 2.0000 a uee cea eene eens es 1

JURISDICTION |... «05 5.5ss00 cess hp en en pene een conan 1

CONSTITUTIONAL PROVISIONS AND STATUTES

INVOLVED |... 5 oo ccwcocnup eee teen eee 2

STATEMENT OF THE CASE... ....52...- sess ss0. 4

REASONS FOR GRANTING THE WRIT .........-. 16

A. The Eleventh Amendment Question ......... 16

B. The § 1988 Attorney’s Fee Question..... Pere 25

CONCLUSION (00,05 oss ve es See eee eres oe 28

APPENDIX (preceded by Table of Contents)....... SA 1

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TABLE OF AUTHORITIES

Page

CAsEs:

Chapman v. Houston Welfare Rights Organiza-

Ee) ee ae a7

Chisolm v. Georgia, 2 Dall. 419 (1793) .............. 18

Clients’ Council v. Pierce, 778 F.2d 518 (8th Cir.

ay vs 4 oo ees vv 40 65 0a oes 25

Consolidated Freightways Corp. of Del. v. Kassel,

556 F.Supp. 740 (S.D. lowa 1983), aff’d, 730 F.2d

1139 (8th-Cir. 1984), cert. den., 469 U.S. 834 ...... 25

Edelman v. Jordan, 415 U.S. 651 (1974)........... 18, 22

Ford Motor Co. v. Department of Treasury of Indi-

ga EE eS |) a 18, 22

Glover v. Alabama Dept. of Corrections, 734 F.2d

691 (11th Cir. 1984), vacated on other grounds,

474 U.S. 806 (1985), on remand, 776 F.2d 964

ce seu thoes veews>s 19 Ge als a

ew. paoneessana, 134 U.S. 1 (1890) ............. 17, 18

ae ¥. Pinney, 43/7 U.S. 678 (1978).............- ey Ee x 4

Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099

AL a 20

McKeown v. Brown, 167 lowa 489, 149 N.W. 593

ee kde eke kaka sbewanee 23

Patsy v. Board of Regents of the State of Florida,

8 i ee

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TABLE OF AUTHORITIES —- Continued

Page

Pennhurst State School & Hospital v. Halderman,

Be A a Oe Ae ee are Roe be ekeres 9 72.995 ze

Pennsylvania v. Delaware Valley Citizens’ Council

for Clean Air, 483 U.S. __, 107 S.Ct. 3078 (1987) .... 28

Pennsylvania v. Union Gas Co., ___U.S.____ (1989) .18, 22

Oueyn v. Jordan, 446 US. 332 (IGS)... sc cccccanes 18

Solomon v. City of Gainesville, 796 F.2d 1464 (11th

ae | err erry ree e ee Per ye cee eae 25

Sosna v. iowa, 419 US. S99 CGS) oo woos ee eee heen ns 23

White Mountain Apache Tribe v. Williams, 810

ee ee A | rere errr yf

Will v. Michigan Department of State Police, __

U.S. aie 15, 19UP) is ci ve pwncw enn eens aes 27

Ex Parte Young, 209 US. 123 (1907)...............-+- 9

CONSTITUTION, SiYATUTES AND RULES:

The Foreign Commerce Clause, Art. I, Sec. 8,

United States: Constitution... .o60.. ss. sce eee 2, passim

The Supremacy Clause, Art. VI, United States

SE 5 55 os cs eV Gee tee es ee 2, passim

The Eleventh Amendment, United States Consti-

Is skew cine cs Sacer eG anehenenres tere 2, passim

42 USC § 1983, Civil Rights Act of 1871...... 3, passim

42 USC & 1966, Civil Rights Act «3.63 055553 3, passim

42 USC § 7543(a), The Clean Air Act ......... 3, passim

TABLE OF AUTHORITIES - Continued

Page

gt ae Bier gL) Ree 5, passim

Fla. Stat. 86.091 (1983), (1987)

Rule 5(b), Rules of the United States District Court

for the Northern District of Florida............. . 10

OPINIONS BELOW

The Court of Appeals opinions, described also in the

petition in No. 88-1950, pp. 1 and 2, are contained in the

appendix to that petition as App. A and B1. The in banc

opinions were filed January 11, 1989, reported at 862 F.2d

1449 (11th Cir. 1989), and are set out at pp. A5-A104. The

panel opinions were filed December 2, 1987, reported at

832 F.2d 1588 (11th Cir. 1987), and are set out at pp. A105-

A214. They were vacated by in banc order at 840 F.2d 778

(1988).

The opinion and final judgment of the District Court

for the Northern District of Florida, December 30, 1985, is

not officially reported but is contained in the appendix to

the petition in No. 88-1950 as App. D1, pp. A219-239.

This cross-petition relies in part on material in the

appendix in No. 88-1950 (A___), and it contains a supple-

mental appendix (SA___) which does not duplicate mate-

rial available in the appendix. The supplemental

appendix sets out other pertinent submissions to and

orders by the courts below.

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JURISDICTION

This Court’s jurisdiction was timely invoked in No.

88-1950 by the filing of that petition on May 31, 1989,

within 60 days of the denial below of petitioners’ timely

motion for rehearing below, on March 2, 1989 (A5,. A240,

A259).

This cross-petition invokes the Court’s jurisdiction

under 28 U.S.C. § 1254(1) and Rule 19.5. Otherwise

untimely, the cross-petition is timely because filed within

30 days after receipt of the petition on June 1, 1989.

Question 1 of this cross-petition reformulates the cor-

responding Eleventh Amendment Question in the peti-

tion in order to recognize facts omitted from the petition

which, so it seems to cross-petitioners, make the Question

more worthy of this Court’s consideration. Cross-peti-

tioners’ purpose is not to seek more practical relief than

was afforded by the Court of Appeals on the Eleventh

Amendment, but to assure review if at all on a question

that is accurate in terms of the case.

Question 2 of the cross-petition seeks affirmative

relief greater than was afforded by the Court of Appeals.

Cross-petitioners recognize that Rule 20.5 constrains

review unless the petition in No. 88-1950 is granted to

review an Eleventh Amendment question or some other.

As a claim for attorney’s fees, it is of course also depen-

dent on cross-petitioners ultimately prevailing before this

Court.

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CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The Foreign Commerce Clause, in Art. I, Sec. 8 of the

Constitution:

The Congress shall have Power . . . To regulate Com-

merce with foreign Nations... .

The Supremacy Clause, in Art. VI of the Constitution:

This Constitution, and the laws of the United

States which shall be made in Pursuance there-

of . . . shall be the supreme Law of the Land... .

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

No state or any political subdivision thereof shall

adopt or attempt to enforce any standard relating to

the control of emissions from new motor vehicles or

new motor vehicle engines subject to [the vehicle

emission standards of 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 or motor vehicle engine as

condition precedent to the initial retail sale, titling (if

any), or registration of such motor vehicle, motor

vehicle engine, or equipment.

The Eleventh Amendment to the Constitution:

The Judicial power of the United States shall not

be construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United

States by Citizens of another State, or by Citizens or

Subjects of any Foreign State.

Section 1979 of the Civil Rights Act of 1871, in 42

USC § 1983:

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State...

subjects, or causes to be subject, any citizen of the

United States .. . 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 proceed-

ing for redress. .

And 42 USC § 1988:

...In any action or proceeding to enforce a provision

of [section 1979] of the Revised Statutes . . . the court,

in its discretion, may allow the prevailing party,

other than the United States, a reasonable attorney’s

fee as part of the costs.

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STATEMENT OF THE CASE

The State of Florida chooses not to verify that cars on

its roads are equipped with effective emission controls

and safety devices. The State abandoned its auto inspec-

tion system some years ago. District Court finding, A235.

In response to a citation by the United States Environ-

mental Protection Agency for excessive automobile emis-

sion pollution, the 1988 Florida Legislature authorized

emissions control inspections “beginning March 1, 1990,

or as soon thereafter as possible as determined by the

department [petitioner Department of Highway Safety

and Motor Vehicles].” Fla. Laws Ch. 88-129, § 3 (1988);

codified at Sec. 325.203 (1), Fla. Stat. (1988 Supp.).

Ordinarily, therefore, at all times pertinent to this

litigation, the owner of a car seeking a Florida tag and

title paid the fees and was issued a tag and title. Regard-

less of the age of one’s car, new or used, in sound condi-

tion or not as regards emissions and safety devices,

previously tagged and titled in Florida or another state,

or never so documented — Florida issues a tag and title.

Florida does not ask whether the car has emission control

devices, or seatbelis and doorlocks and such, or whether

the car has been certified by any governmental authority,

federal or state, as having such. “Unless,” a State official

testified, “it is one of the vehicles under the issue of this

trial” (R4-42-18, record in the Court of Appeals) — a car

bearing foreign title papers, presented fer its first Ameri-

can registration:

© When I buy an automobile, whether it’s new or

used, a Ford, say, and go down to get it titled and

registered, does anybody quiz me about compliance

with safety standards?

A No, sir.

QO Nor emission standards?

A No, sir. Unless it is one of the vehicles under the

issue of this trial.

Enacted in 1984, Fla. Stat. § 320.02(9) requires the

Department to refuse tags and titles for imported foreign-

built cars still bearing foreign titles, until they are “certi-

fied 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” Clean Air Act emission standards and federal

Highway Safety Act safety standards. App. E2, p. A264.

Those federal agencies have no mandate nor any

authority from Congress to “certify” anything of the sort

to the states, and they do not. District Court findings,

App. D1, A222. The Florida agency therefore began

demanding other prerequisites to a tag and title: other

pieces of federal paper that federal agencies issue rou-

tinely for other purposes than to control owning and

operating a car, including finally — six to nine months

after importation — a National Highway Traffic Safety

Administration letter to Customs releasing its interest in

the bond given at the time of import. A222.

No federal law, regulation or practice impeded Myra

Sims and others like her in titling and driving their cars

at any time after Customs released them under bond at

the port of entry. And the Clean Air Act declared, as

regards State restrictions on tags and titles: “No state

shall require certification, inspection, or any other

approval .. . as condition precedent to the initial retail

sale, titling (if any), or registration. . . .” 42 USC § 7543{a).!

Florida’s Statute operates, as intended, exclusively

against certain Foreign Commerce as such. No other car

or owner is so restricted. The District Court found on

undisputed evidence that the law serves no local purpose

but simply attémpts to arrogate to a State agency the de

facto enforcement of (what the State agency supposes to

be) federal law and regulatory policy. That, the District

Court found, was expressly forbidden by Congress as

well as by the Foreign Commerce Clause.

“(T]he 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 Consti-

tution. It is precisely this type of state action that the

1 We pretermit here, as unnecessary to the Eleventh

Amendment question, a further demonstration that as a matter

of federal regulatory fact and law an importer such as Myra

Sims is free to own and drive her car while awaiting the end of

the federal paperwork stream completing her customs entry.

The Eleventh Circuit panel decision recognized her entitlement

both as a matter of fact and federal law, 832 F.2d 1558, 1563 text

at fn. 7, App. B1, pp. A122-A123. And the in banc majority

agreed with the District Court that in any event it was solely

the federal agencies’ prerogative, not the State’s, to interpret

federal law and enforce its regulatory requirements. 862 F.2d

1449, 1455, A23-A24; A227-A228 (District Court). Question 3 in

the petition in No. 88-1950 attempts to clad this issue in the

“standing” terms employed by Judge Tjoflat’s panel dissent,

832 F.2d 1558, 1574 Part D, an analysis which the author

abandoned in dissenting in banc on “standing”. The insubstan-

tiality of the “standing” question is shown in respondents Brief

in Opposition.

[Foreign] Commerce Clause was designed to pre-

vent. .. .” District Court judgment, A238.

The District Court found that the statute offends the

dormant Foreign Commerce Clause, A236-A239; is

expressly preempted by the Clean Air Act, 42 USC

§ 7543(a), A227-A229; and is preempted as well by the

Motor Vehicle Safety Act, 15 USC § 1392(d), A229-236.

Rejecting the State’s purported justification for usurping

federal regulatory authority over emission control stan-

dards in the Clean Air Act, the District Court held, A227-

A228:

The state argues that it is not setting any emis-

sion standards of its own that must be met and that

the challenged statute simply “insures that new cars

coming on to Florida’s highways comply with the

Clean Air Act.” Brief of defendants at 19. The state

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

enforce such standards at the stage that 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, the states are preempted from enacting any reg-

ulatory or enforcement scheme either of their own or

to complement the federal scheme, with specific regard

to titling and registration. Yet, this is precisely what

the challenged Florida statute seeks to do. Enforce-

ment of the Clean Air Act before first sale is the sole

and exclusive prerogative of the federal govern-

ment. . . . (Emphasis by the Court.)

The Court of Appeals panel agreed in virtually those

terms that Florida Statute § 320.02(9) offended the Com-

merce Clause and was expressly preempted by the Clean

Air Act, though not by the federal Safety Act. 832 F2d

1558, 1564-70; App. B1 pp. A126-A148. The Court in banc

reaffirmed, 6-5, that the Clean Air Act wholly preempts

the statute — evidently regarding its elements as indivis-

ible —- and declared it unnecessary to reach the dormant

Commerce Clause issue. 862 F.2d 1449, 1458; App. A22-

A38.

The Eleventh Amendment plea, a belated assertion

by the Attorney General which the Court of Appeals

panel said was “untimely and compelled” by the panel

itself, 832 F.2d 1570, App. B1, A152, provoked a sharp 6-5

split in the in banc decision. It is posed as Question 1 by

the petition in No. 88-1950 and by the corresponding

Question in this cross-petition.

A most puzzling statement appears prominently at

the head of the Attorney General’s “Reasons for Granting

the Writ” in the petition, p. 14:

This case was filed by the Respondent against

the State and its Department of Highway Safety and

Motor Vehicles. No individual state official was ever

a named party to the action.

This statement is inexplicable. Neither Attorney Gen-

eral Butterworth nor his predecessor, Attorney General

Jim Smith - who was in fact “a named party to the

action” — has ever before made such a statement in five

years of litigation.

The Complaint filed in the District Court on July 25,

1985, sued “JIM SMITH, ATTORNEY GENERAL OF THE

STATE OF FLORIDA” as a party defendant along with

the defendant Department. Supp. App. A, SA 1, caption

and introductory paragraph. The complaint alleged that

unless enjoined “the defendants” — Jim Smith as Attorney

General, as well as the Department — “will continue so to

enforce those unlawful and preempted restrictions

against plaintiffs and others.” SA 3, 7 12, e.a. The Com-

plaint closed with a prayer for a‘preliminary and a per-

manent injunction against “the defendants.” SA 5, e.a.

Attorney General Jim Smith appeared as a party in

the District Court and as a party answered the Com-

plaint. He joined in the Answer filed August 19, 1985, not

simply as counsel named at the end, Supp. App. B, SA 7,

but in the admissions and denials he as “undersigned

counsel” pleaded for “the defendants.” Supp. App. B, SA

6. Thus,

The Defendants, by and through their undersigned

counsel, hereby file their answer... .

1. The Defendants admit that part of Paragraph

1 that states the jurisdiction of this Court, and the

reason the Plaintiffs are seeking relief against the

Defendants. However, the defendants deny .. .

By joining Attorney General Smith as a party, the

Complaint exploited both that officer’s general law

enforcement authority over § 320.02(9)? as well as a con-

temporaneous Florida statute requiring that the Attorney

General be “served with a copy of the complaint and be

entitled to be heard” when the constitutionality of a

Florida law is at issue in State court proceedings.

2 The general power of attorneys general to enforce state

laws was part of the predicate for joining Attorney General

Young in Ex Parte Young, 209 U.S. 123, __, 28 S.Ct. 441, 454

(1907), and doctrinally predicates the authority-stripping “fic-

tion” attributed to that decision by, for example, Pennhurst

State School & Hospital v. Halderman, 465 U.S. 89, 114 at fn. 25

(1984).

10

The Florida statute? in terms affects only State court

proceedings, but Local Federal Rule 5(b) in Northern

District of Florida requires that the statute be observed as

a “notice” device on filing a federal complaint contesting

a Florida statute for constitutionality.4

By joining Attorney General Jim Smith as a party

defendant, and complaining that he threatened official

action to enforce the offending statute, and praying for

injunctive relief against him, the Complaint uttered the

incantation necessary to neutralize any Eleventh Amend-

ment defense which the Department and Attorney Gen-

eral might interpose against declaratory and prospective

injunctive relief on the federal questions pleaded in

Counts I and II (Supp. App. A, SA 1-5).

For reasons they never stated of record, the defen-

dants (not distinguishing between themselves in the sin-

gle voice of Attorney General Jim Smith) objected to

Smith’s joinder as a party defendant (Supp. App. B, SA

6-7), and they prevailed on plaintiffs’ counsel to withhold

3 Fla. Stat. 86.091 (1983), (1987), on Declaratory Judg-

ments: “When declaratory relief is sought, all persons may be

made parties who have or claim any interest which would be

affected by the declaration. . . . If the statute . . . is alleged to be

unconstitutional, the Attorney General or the state attorney of

the judicial circuit in which the action is pending shall be

served with a copy of the complaint and be entitled to be

heard.”

4 Rule 5(b), Rules of the United States District Court for

the Northern District of Florida: “Upon the filing of any action

in which the constitutionality of a state statute, charter, ordi-

nance, or franchise is challenged, counsel shall comply with

the notice provisions of Section 86.091, Florida Statutes.”

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service of process temporarily. Supp. App. C, SA 8. Then

their “undersigned counsel” — Attorney General Smith -

filed an Answer for “the Defendants” including himself,

and averred:°

4. The Defendants admit the allegations of

Paragraph 4 [of the Complaint], but by stipulation in

open court, the parties agreed that Jim Smith, Attor-

ney General, should not be named a party defendant

to this action.

The Defendants thus demanded according to what

they said was an (unreported) “stipulation in open court”

that defendant Smith be dropped as a party; and the same

Defendants simultaneously pleaded an Eleventh Amend-

ment defense only to the pendent State law claim in Count III

of the Complaint (Supp. App. B, SA 7). It was no coinci-

dence that Defendants Department and Smith omitted an

5 The quoted Answer of “the Defendants” admitting “the

allegations of Paragraph 4” suffices to correct the uncharitable

miscounting of parties defendant by the in banc dissent. The

dissent says “Sims and FICA sought no relief against the

attorney general” (862 F.2d at 1469 fn. 22, App. A, A92 fn. 22)

and glosses over the Complaint’s plural reference to “defen-

dants” by referring — as though the Complaint did also — to

“the named defendants” as “the State of Florida and the

Department” (862 F.2d at 1469 text at fn. 23, A92). In both law

and fact, the State of Florida, Department of Motor Vehicles

and Highway Safety, was one defendant not two. Fla. Stat.

§ 20.04(1): “Each department shall bear a title beginning with

their words ‘State of Florida’ and continuing with ‘Department

of __’.” Defendants expressly admitted the same as a matter of

fact. Complaint J 4, Supp. App. A, SA 2: “Defendant State of

_ Florida, Department of Highway Safety and Motor Vehicles, is

the department of state government principally charged to

enforce. . . . Defendant Jim Smith is Attorney General of the

State of Florida. . . .” See Answer 4 4, Supp. App. B, SA 6.

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Eleventh Amendment defense to federal claims that

would be immunized from it by the party-presence of Jim

Smith, Attorney General; while they pleaded an Eleventh

Amendment defense to a pendent State law claim, for

which Smith’s party-presence would likely be no

antidote.®

On the very day the Department and Smith as Attor-

ney General, Defendants, filed that Answer — August 19,

1985 — counsel for Sims and FICA filed a motion to drop

Smith as a party “inasmuch as the Attorney General was

named a party only to afford him the opportunity to be

heard if he chose with party status, and the Attorney

General has expressed a preference that he not be a

named party.” Supp. App. C, SA 8-9. The motion was

routinely granted. Supp. App. D, SA 9.

The Department (and its counsel, the Attorney Gen-

eral) adhered to this status quo for two years, until March

1987. The case was tried in September 1985, and judg-

ment was entered in December. App. D1, A219, A239-The

appeal was argued before the Eleventh Circuit panel on

Monday, September 29, 1986.

On February 18, 1987, the Clerk wrote counsel

requesting briefs on new issues — mootness, standing, and

the Eleventh Amendment — which the Court declared it

was “obliged to address. . . sua sponte” (Supp. App. E, SA

10). [The in banc dissent is in error suggesting, 862 F.2d at

1469 fn. 25, App. A. A96, that the Eleventh Amendment

was raised four months earlier at oral argument.] The

6 Pennhurst State School & Hospital v. Halderman, 465 U.S.

89 (1984).

to

~=_>

Clerk’s letter cited, as regards the Court’s duty to raise

the Eleventh Amendment issue (SA 11),

... Sosna v. Iowa, 419 U.S. 393, 396 n.2, 95 S.Ct. 553,

555-56 n.2 (1975) (Supreme Court addressed sover-

eign immunity question although it was not raised by

the parties.)

Responding to this invitation, the Attorney General’s

incanted the Eleventh Amendment and pointed out that

the case lacked a personal party-surrogate for Florida,

whose authority might be “stripped”. Sims and FICA,

citing Patsy v. Board of Regents of the State of Florida, 457

U.S. 496, 515 n. 19 (1982),7 objected to the Court’s action —

“in effect a solicitation of such a defense, which appellant

Department now has asserted” (Supp. App. F, SA 12). The

objection was “DENIED” by the panel (Supp. App. H, SA

13).

Cross-petitioners also moved the Court (Supp. App.

G, SA 13):

to add as a party defendant and appellant on such

terms as are just, or temporarily to relinquish juris-

diction to the District Court that it may do so,

Charles J. Brantley, Director of the Division of Motor

Vehicles, Florida Department of Highway Safety and

Motor Vehicles. Fed.R.Civ.P. 21.

That motion too was “DENIED” by the panel (Supp. App.

I, SA 14).

7 The objection quoted, as the panel majority did later in

its opinion, 832 F.2d 1570, Ai50, what this Court said in Patsy:

[W]e have never held that [the eleventh amendment

defense] is jurisdictional in the sense that it must be raised

and decided by this court on its own motion.

ican iaaeiiaaiimeaiieceaeeaeea

14

Several months later, the panel decision on the merits

reconsidered the motion to add Brantley “in light of the

state’s untimely and compelled assertion of the sovereign

immunity defense.” 832 F.2d at 1570, App. Bl, A152.

Saying “the matters to be weighed in ruling on such a

motion can better be considered in the district court,” Id.,

A151, the Court panel affirmed the District Court’s find-

ings that the Florida statute offends the Clean Air Act

and the dormant Commerce Clause, and remanded the

joinder question for disposition by the district court:

Although we do not interpret Patsy as prohibiting

this court from raising the issue of sovereign immu-

nity, we do recognize the inequity in allowing the

state to now assert the defense of sovereign immu-

nity without affording Sims and the FICA an oppor-

tunity to effectively counter the defense at this stage

in the litigation.

The in banc dissent erroneously states that Sims and

FICA did not renew their joinder motion before the Court

in banc. 862 F.2d at 1469, fn. 25, App. A, A96 fn. 25.8 That

statement, apparently, is the source of petitioners’ erro-

neous formulation of Question 1, petition No. 88-1950 p.

i, saying the in banc Court acted “sua sponte” in ordering

Brantley joined.

In fact the in banc brief of Sims and FICA renewed

their prior motion to the panel, and expanded it. They

asked, as perhaps a more suitable and convenient alterna-

tive, that the incumbent Attorney General “be restored as a

8 The in banc dissent: “The panel denied the motion on

May 26, 1987, and Sims and FICA have not renewed it. The

court therefore acts sua sponte in substituting [sic] Brantley as

the party defendant at this tirne.”

15

party.” See excerpt from in banc brief filed May 2, 1988,

App. Supp. J, SA 15, entitled:

“D. THE ATTORNEY GENERAL SHOULD BE

RESTORED AS A PARTY OR MR.

BRANTLEY SHOULD BE JOINED TO CURE

ANY ELEVENTH AMENDMENT

IRREGULARITY”

In the end, as the Court is advised, the Eleventh

Circuit in banc majority joined Mr. Brantley as a party to

afford a nominal official presence for what the Attorney

General claimed now had become an indispensable

authority-stripping ceremony.

In the course of these tumultuous Eleventh Circuit

proceedings involving multiple briefings from several

amici as well as the parties, Sims and FICA moved the

panel to award them an attorney’s fee under 42 USC

§§ 1983 and 1988, should they prevail. The merits of that

motion were not discussed in the panel opinion, but a

ruling denying it was subsumed in the exasperated foot-

note 6 to the panel opinion: “The motions not directly

ruled upon in this opinion are denied.” 832 F.2d at 1563,

fn. 6; App. Bl, A119.

Sims and FICA renewed their request for § 1988

attorneys’ fees before the Court in banc. Their in banc

brief predicated that entitlement both on the equal pro-

tection claim, unpleaded but tried by consent, and on

their having prevailed on a claim of right, privilege or

immunity under the Clean Air Act, 42 U.S.C. § 7543(a).

As to the latter, cross-petitioners’ in banc brief filed May

3, 1988, stated (Supp. App. K, SA 17):

a

16

The Judgment redresses the deprivation of a

right, privilege or immunity secured to appellees by

the law of the United States, specifically the second

sentence of 42 U.S.C. § 7543(a), securing appellees in

the federal privilege or immunity of acquir[ing] tag

and title free of any condition precedent imposed by

the state by way of certification, inspection or other

approval. Sge Maine v. Thiboutot, 448 U.S. 1, 4, 100

S.Ct. 2502, 65 L.Ed.2d 555, 559 (1980).

The in banc opinion states, “All other pending

motions [other than the renewed motion to add Mr.

Brantley as a party] are denied.” 862 F.2d at 1460, fn. 16

[The quoted sentence was omitted in the State’s printing

of that footnote in App. A to the petition in No. 88-1950,

A50.}

The mandate issued by the Court of Appeals on

March 13, 1989, App. C, A218, states: “IT IS FURTHER

ORDERED that each party bear their own costs on

appeal.”

a

—

REASONS FOR GRANTING THE WRIT

A. The Eleventh Amendment Question.

“Whom the Gods would destroy, they first make

mad.” Longfellow, The Masque of Pandora.

It is not recorded whether Longfellow spoke of Elev-

enth Amendment doctrine itself, or rather of hapless

judges and lawyers caught in its snares.

But if the Court were inclined to take an appropriate

case in a further effort to separate the legitimate in this

17

doctrinal heritage from the exquisitely nonsensical, this

may be the case.

The Court might ask one of the fundamental ques-

tions: whether, considering the claim of right and the

relief sought, someone like Defendant Jim Smith, Attor-

ney General, or Mr. Brantley, should be considered essen-

tial in the first place, for authority-stripping. No genuine

sovereign interest of the State of Florida was implicated

in this action.

Giving Hans v. Louisiana, 134 U.S. 1 (1890), all the

deference its survival through history has earned, no

sovereign interest of a State is compromised when one of

its citizens (to whom the Eleventh Amendment itself

addresses no message) asks a federal court to declare to

the State, present through such agencies or officers as the

State shall dispatch to court, that a certain piece of legis-

lation unconstitutionally arrogates to the State’s own

superintendence federal law and policy that lie beyond

the State’s “sovereign” power to superintend.

It impugns no genuine sovereign interest of a State

when one of its citizens asks a federal court to declare

simply what Congress has declared in law, for example

the Clean Air Act: “No state shall... .” The customary

prohibitory injunction might be withheld in deference®

9 The Eleventh Circuit panel decision, deciding the case

despite the Department’s objection, and remanding for consid-

eration 3f joining a surrogate individual official, might have

been rationalized in these terms. The panel mentioned the

District Court's declaratory relief as for the most part affirmed —

the court’s “finding” and “ruling” — but said nothing of the pro

forma injunction. 832 F.2d at 1570, App. B1, A153.

ee

a _§_éja ______——_——

18

to sovereign dignity until some State agent, truly ultra

vires, gives cause for issuing the writ directed by name to

him personally; but naming the State at the outset, as the

party defendant interested as no one doubts, impugns no

genuine sovereign interest cf the State.

No money damages were sought in this case. There is

no incursion of any sort into the State Treasury. No man-

datory injunction was sought such as might directly or

indirectly require Treasury expenditures. There is no fis-

cal element whatever. This alone dissipates much of the

power that history has added to the sovereign immunity

enibodied in the Eleventh Amendment. This is no Chisolm

v. Georgia, 2 Dall. 419 (1793), nor a Hans v. Louisiana, 134

U.S. 1 (1890). There is no retroactive award of damages,

Edelman v. Jordan, 415 U.S. 651 (1974), not even a refund,

Ford Motor Co. v. Department of Treasury of Indiana, 323

U.S. 459 (1945). The relief sought has no ancillary ten-

dency, even, to command State funds. Quern v. Jordan, 440

U.S. 332 (1979). No close investigation is called for, as

recently in Pennsylvania v. Union Gas Co., __U.S.__

(1989), whether Congress can and has abrogated the fiscal

immunity of States from federal court suits of certain

sorts.

Eleventh Amendment doctrine can properly be

“understood as premised on a prudential balancing of

state and federal interests.” Pennsylvania, supra,___ at __,

fn. 3 (Stevens, J., concurring). It is a daunting task to

describe what genuine sovereign interest a State may

have against merely prophylactic judicial remedies,

deployed in aid of the most basic federal principle. But

the sovereign interest of the United States in its judiciary

a

19

speaking clearly and directly to its State partner in feder-

alism, is beyond cavil. Congress said to Florida in the

Clean Air Act, “No state or any political subdivision

thereof shall adopt. .. .” That there was a misguided if

not defiant act is clear; but it was not Mr. Brantley who

“adopted” that prohibited law, nor Jim Smith, Attorney

General. The State itself adopted that law.

The Court may find it desirable to consider anew

why, in such a case, the sovereign interest of the United

States can judicially be uttered only to a surrogate or

messenger — official human beings, not official

departments.

The Court may think it more profitable to consider

what really is constitutionalized by the Eleventh Amend-

ment. The typical Eleventh Amendment faux pas, in a case

where it need not be a bar, is said to be “the rare case in

which a plaintiff foolishly attempts to sue the State in its

own name.” Pennhurst State School & Hospital v. Halder-

man, 465 U.S. 89, 116 (1984). But it is not suing the State in

its Own name that is constitutionally anathematized.

Where plaintiff’s federal suit is otherwise defensible, as

by authority-stripping allegations against an officer in his

“official capacity”, suing “the State in its own name” also

is not only permissible; in the Eleventh Circuit, if plaintiff

wishes to predicate a § 1988 fee award upon prevailing

against the surrogate, suing “the State in its own name” is

essential. Glover v. Alabama Dept. of Corrections, 734 F.2d

691, 695 (11th Cir. 1984), vacated on other grounds, 474

U.S. 806 (1985), on remand, 776 F.2d 964 (11th Cir. 1985),

20

conforming to Kentucky v. Graham, 473 U.S. 159, 105 S.Ct.

3099, 3106, 87 L.Ed.2d 114 (1985).1°

Cross-petitioners Sims and FICA, invoking the

prayer of their Complaint for “such other and further

relief as may be proper” (Supp. App. A, SA 5), indeed

claimed § 1988 attorney’s fees in the Court of Appeals,

and they would claim them in this Court, against a prop-

erly joined defendant: petitioner State of Florida, Depart-

ment of Highway Safety and Motor Vehicles.

What is constitutionalized by Eleventh Amendment

doctrine, therefore, in a suit for prospective relief against

a State statute offending supreme federal interests and a

direct command by Congress, is not the agency’s “sover-

eign immunity” against suit in its own name, but some-

thing else. What is constitutionalized, it seems, is a

perceived necessity for ceremonial authority-stripping,

Ex Parte Young, and a proper personage for the leading

role.

10 Glover's Eleventh Circuit policy, 734 F.2d at 695, con-

formed to the personal/official dichotomy of Kentucky v.

Graham, 473 U.S. at 167 fn. 14 (“Thus, implementation of state

policy or custom may be reached in federal court only because

official-capacity actions for prospective relief are not treated as

actions against the State. See Ex Parte Young... .”) is:

[W]e hold that, even if otherwise immune, the govern-

mental entity must be joined in the suit for purposes of the

attorney’s fees determination before it may be held liable

for attorney’s fees. . . [W]e hold that this policy shall be

applied as a rule of this Circuit to all cases filed after the

date of this opinion.

21

So imbued with authority-stripping were the in banc

dissenters below, and with a perceived constitutional

necessity for a human/official party defendant, that they

characterized the Court’s joinder of Mr. Brantley as a

substitution of Brantley for the Department: “the majority,

acting sua sponte [sic], simply substitutes an individual —

the director of the Department - for the State as the party

defendant... .” 862 F.2d at 1469, App. A, A95; see also

fn. 8 supra.

There was of course no substitution. A court-ordered

substitution would have warred against that Court’s own

sound Glover policy, supra fn. 10, that any § 1988 attor-

ney’s fee claim such as Sims and FICA made must be

predicated by first joining the State agency as a named

party defendant. That policy implements, in a straightfor-

ward way, Hutto v. Finney, 437 U.S. 678, 699 (1978), which

awarded § 1988 fees against an absent agency whose

interests the Court found adequately “present” in its

counsel, the State Attorney General.?!

All this ruckus, joinder versus substitution, results

from Eleventh Amendment doctrine that is too exquisite

for mortal minds, which though useless in any practical

sense excites a certain passion. (Never mind that Florida

11 Hutto, 437 U.S. at 699: “Although the Eleventh Amend-

ment prevented respondents from suing the State by name,

their injunctive suit against prison officials was, for all practi-

cal purposes, brought against the State. The actions of the

Attorney General himself show that. His office has defended

this action since it began.”

22

refuses federally-mandated tags and titles, let’s talk Elev-

enth Amendment.) Justice Scalia’s words in another con-

text are apt here: “that principle is too much at war with

itself to endure.” Pennsylvania v. Union Gas Co., US.

__, ___ (1989) (Scalia, J., dissenting in part).

Perhaps, after taking the case for decision, the Court

will conclude as did the in banc dissenters, evidently, that

counsel for Sims and FICA were “foolish” (acknowledg-

ing Pennhurst’s scolding) to acquiesce in the request by

“defendants”, through Deputy Attorney General Mitchell

D. Franks, Supp. App. B, SA 7, to drop defendant Jim

Smith, as Attorney General, as a named party. Perhaps it

was decisively “foolish” not to expect the Court of

Appeals to invite the Attorney General (the State?) to

change his (its?) mind about the need for an authority-

stripping ceremony; and not to expect “due process”

objections to nominally borrowing the Attorney General’s

name again, or Mr. Brantley’s. In that event, the Court

would wipe away five full years of judicial work, as the

Attorney General now urges.

Perhaps, however, the Court would choose to craft a

healthy waiver doctrine making all this distraction unnec-

essary: waiver, when an Attorney General does not

promptly insist on a party-presence for authority-strip-

ping in a prospective-relief federal-question suit. In such

a case, that ceremony is the only residue of sovereign

immunity. The Court’s “waiver” jurisprudence is bound

at present to damage-suit cases and their equivalent,

honoring State treasuries. E.g., Ford Motor Co. v. Depart-

ment of Treasury of Indiana, 323 U.S. 459, 467 (1945); Edel-

man v. Jordan, 415 U.S. 651, 678 (1974).

23

Without a reliable waiver doctrine, the federal judi-

cial process is put at considerable risk in service of cos-

metic values. In an adversary system the parties

ordinarily define the issues according to an orderly

schedule in the trial courts. When for whatever reason a

State Attorney General does not covet and timely

demand authority-stripping, it seems no affront to the

State to suggest that the time for that ceremony, of such

dubious value, passed with the State’s filing of an answer

omitting an Eleventh Amendment defense to the federal

questions stated by the complaint (Supp. App. B, SA 6-7).

The need for a more reliable waiver doctrine is illus-

trated by this Court’s experience in Sosna v. Iowa, 419 U.S.

393 (1975),!2 written by then Justice Rehnquist, and Patsy

v. Florida Board of Regents, 457 U.S. 496 (1982), by Justice

Marshall. Both cases arose in the federal system and were

potentially subject, therefore, to interposition of an Elev-

enth Amendment sovereign immunity defense. Both

cases came to this Court without such a defense, but with

rumors and intimations of same. In each case, after taking

note of the potential impediment to speaking at all, the

Court decided the merits issues and let any latent sover-

eigi: immunity question pass for later disposition by an

inferior court.

12 Sosna speculated in a footnote that lowa perhaps waives

its sovereign immunity by appearing to defend on the merits,

citing McKeown v. Brown, 167 lowa 489, 499, 149 N.W. 593, 597

(1914). The Iowa decision applied common-law waiver princi-

ples (no Iowa statute) to a state court lawsuit, and said nothing

about waiving Iowa’s Eleventh Amendment sovereign immu-

nity to suit in a federal] court as in Sosna v. Iowa.

24

In one of them, Patsy, Justice Marshall noted that the

Florida Board of Regents “expressly requested that we

[the Court] address the exhaustion question and not pass

on its potential Eleventh Amendment immunity... .”

Patsy, 457 U.S. 496, 515 fn. 19 (1982). This request was

voiced to the Court by Florida Assistant Attorney Gen-

eral Mitchell D. Franks, who briefed and argued the case.

457 U.S. at 497, 102 S.Ct. 2557, 2558, 73 L.Ed.2d 172, 176,

1450.

That was the same Assistant Attorney General Mit-

chell D. Franks who answering for “the defendants” in

this case demanded that Jim Smith, as Attorney General,

be dropped as a named party defendant. Supp. App. B,

SA 6-7. It was the demand by Mr. Franks that deprived

the Court of Appeals of a principal for an authority-

stripping ceremony — Jim Smith, as Attorney General.

The question then occurs, if in Patsy, having solicited

a ruling on “the exhaustion question” despite a latent

Eleventh Amendment defense, Assistant Attorney Gen-

eral Mitchell D. Franks did not then admire the ruling he

received from the Court, would the Board of Regents

speaking through the Attorney General have been per-

mitted to obliterate that ruling and the entire case by

incanting “sovereign immunity” in a petition for

rehearing?

That precisely is how the Attorney General wishes to

dispose of District Judge Stafford’s judicial labor in 1985,

and three more years of labor by the Court of Appeals -

not to mention the humble efforts of Sims and FICA, and

their uncompensated counsel, to vindicate these small

claims under the Constitution and laws.

oot on Sai oa

25

Ironically enough, the one redeeming virtue of

authority-stripping doctrine in this case is that the

restored presence of an official Florida “person” satisfies

the § 1983 condition for a § 1988 fee award against the

State. Part B, infra.

There are several reasons, then, why this Court might

consider this case a special opportunity for useful work

on Eleventh Amendment sovereign immunity doctrine.

B. The § 1988 Attorney’s Fee Question.

The Court of Appeals apparently denied the fee

motion of Sims and FICA!? and mandated that “each

party bear their own costs on appeal,” App. C, A218,

though the Court did not address the matters of law

involved in the fee motion.'4

The Question might ordinarily follow the merits, but

to bring the matter clearly to the Court’s attention cross-

petitioners submit their Fee Question not as indepen-

dently requiring conflict review — no court of appeals has

13 “All other pending motions are denied.” 862 F.2d at

1460, fn. 16 (sentence omitted in No. 88-1950 petition, App. A,

A50 fn. 16).

14 As § 1988 fee petitions normally are filed and taken up

on remand after claimant has “prevailed” on appeal, Solomon v.

City of Gainesville, 796 F.2d 1464 (11th Cir. 1986); Clients’ Coun-

cil v. Pierce, 778 F.2d 518 (8th Cir. 1985); Consolidated Freight-

ways Corp. of Del. v. Kassel, 556 F.Supp. 740 (S.D. Iowa 1983),

aff'd, 730 F.2d 1139 (8th Cir. 1984), cert. denied, 469 U.S. 834, a

mandate in these terms might not preclude a fee application on

remand, except for cross-petitioners’ submission of a fee

motion to the Court of Appeals.

26

squarely held what we here urge - but as so intimately

related to any Eleventh Amendment Question the Court

may accept as to be fairly included in the disposition of

that Question.

Preserving the Fee Question is, of course, of some

moment to cross-petitioners and their counsel as they

commit themselves now to any proceedings this Court

shall order.!5

The Fee Question is particularly related to the Elev-

enth Amendment Question in this case because it is an

element of both that The Clean Air Act expressly forbids

what the Florida Legislature has enacted in the statute at

hand. 42 U.S.C. § 7543(a):

No state or any political subdivision thereof shall

adopt or attempt to enforce any standard relating to

the control of emissions from [the subject vehi-

cles] . . . No state shail require certification, inspec-

tion, or any other approval relating to the control of

emissions from any [subject vehicle] . . . as condition

precedent to the initial retail sale, titling (if any), or

registration of such motor vehicle, motor vehicle

engine, or equipment.

In one respect the language of 42 U.S.C. § 7543(a)

expresses the extent of its preemption of state law, or — to

15 It should be obvious also that cross-petitioners Sims and

FICA are able to persevere before this Court, as they did for

three years in the Court of Appeals, only in prospect that their

fee claim will be addressed on the merits and decided. Their

uncompensated counsel otherwise is indentured to the con-

tinuing debate over the Eleventh Amendment.

A Mime Goet SPE 2

27

the same effect, in terms of the dormant Foreign Com-

merce Clause —- it specifies how far into the state’s

potential regulatory domain these imports shall be

deemed to remain imports, subject exclusively to federal

control. But the quoted language does more than simply

draw the boundary between federal and state regulatory

authority. [The Supremacy and Commerce Clauses do not

of their own effect create fee entitlements under 42 U.S.C.

§ 1983 and 1988. See Chapman v. Houston Welfare Rights

Organization, 441 U.S. 600 (1979); White Mountain Apache

Tribe v. Williams, 810 F.2d 844 (9th Cir. 1984).]

More so than in any case of preemption by the effect

of Congressional action, the quoted Act explicitly forbids

any state “certification, inspection, or approval” require-

ment “as condition precedent to the initial retail sale,

titling (if any), or registration”; and the Act expressly

secures affected citizens in a corresponding right, privi-

lege or immunity against State action of the sort

forbidden.

As a claim against Mr. Brantley, an official restored in

the place of Attorney General Smith, this claim is cogniz-

ible under 42 U.S.C. § 1983, see Will v. Michigan Depart-

ment of State Police, __U.S.__, at fn. 10 June 15, 1989),

and is remediable by a § 1985 fee award against the State.

Hutto and Glover, supra p. 21.

The Question cross-petitioners would present, -there-

fore, is a stronger version of the question reserved by the

Ninth Circuit in White Mountain, 810 F.2d 844, 850 fn 8:

We emphasize that we are not dealing with a

case where state action is in actual conflict with the

explicit provisions of federal law. Therefore, we need

not reach the question whether a Supremacy Clause

28

claim might give rise to a § 1983 action where pre-

emption was based on such actual conflict. Here we

deal only with preemption based on federal occupa-

tion of the field and conflict between state law and

federal goals and policies.

The Clean Air Act otherwise secures the payment of

attorney fees in actions to enforce its provisions. E.g.,

Pennsylvania v. Delaware Valley Citizens’ Council for Clean

Air, 483 U.S. __, 107 S.Ct. 3078 (1987). The Court should

decide whether, by the effect of § 7543(a) as well, the

Clean Air Act secures privileges and immunities to

importers for which a vindicating fee award may be

made when they prevail against the State and the “per-

son” who is its surrogate.

a

—

CONCLUSION

The Court is respectfully urged to grant the Cross-

Petition if any question presented by the Petition is

deemed worthy of consideration.

Respectfully submitted,

Ropert P. Smit, Jr.

Counsel of Record

Cecevtia C. SMITH

123 South Calhoun Street

Post Office Box 6526

Tallahassee, Florida 32314

(904) 222-7500

For cross-petitioners.

June 30, 1989

i - ane “2

Fg = Rae tal RE Ng a te BK

APPENDIX

TABLE OF CONTENTS

Page

United States District Court, Northern District of Florida

Original Complaint, Supp. App. A.............. SA 1

Answer by Defendant, Supp. App. B............ SA 6

Motion to Drop

Attorney General as Party, Supp. App. C..... SA 8

Order Dropping

Attorney General as Party, Supp. App. D..... SA 9

United States Court of Appeals for the Eleventh Circuit

Court of Appeals Letter

to Counsel Feb. 18, 1987, Supp. App. E..... . SA 10

Objection by Appellees

sums & FILA, Supp. App. F ...... <2. 6.65550. SA 11

Appellees’ Motion to Add

Charles Brantley as Party, Supp. App. G...... SA 12

Order on Objections, Supp. App. H............. SA 13

Order on Motion, Supp. App. I................. SA 14

Excerpt, In Banc Brief

of Appellees Sims and FICA Before Court of

PAs I ie Fee i kane ag ry cee ns SA 15

Excerpt, In Banc Brief

of Appellees Sims and Fica Before Court of

PDDON, DUO. POT: Te ooo on nc bes cde ties SA 16

SA 1

SUPP. APP. A - ORIGINAL COMPLAINT

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

MYRA HOLLADAY SIMS and

FLORIDA IMPORT AND COM-

PLIANCE ASSOCIATION, an

unincorporated association,

Plaintiffs,

NO. 84-7214-WS

VS.

STATE OF FLORIDA, DEPART-

MENT OF HIGHWAY SAFETY

AND MOTOR VEHICLES and

JIM SMITH, ATTORNEY GEN-

ERAL OF THE STATE OF

FLORIDA,

Defendants.

Nee Nee ee”

COMPLAINT FOR DECLARATORY

AND INJUNCTIVE RELIEF

(Filed July 25, 1985)

MYRA HOLLADAY SIMS and FLORIDA IMPORT

AND COMPLIANCE ASSOCIATION, plaintiffs, for their

Complaint against STATE OF FLORIDA, DEPARTMENT

OF HIGHWAY SAFETY AND MOTOR VEHICLES, and

JIM SMITH, ATTORNEY GENERAL OF THE STATE OF

FLORIDA, defendants, allege:

1. This civil action arises under the Constitution

and laws of the United States, 28 U.S.C. § 1331, for a

declaratory judgment and injunctive relief, 28 U.S.C.

§ 2201, 2202, in that:

(a) Plaintiffs seek relief against defendants to pre-

vent their further attempts to enforce Section 320.02(9),

Florida Statutes (Supp. 1984), which provides:

SA 2

(9) Before a motor vehicle which has not been man-

ufactured 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. A vehicle which is

registered pursuant to this subsection shall not be

titled as a new motor vehicle.

+ oa *

Parties.

* * *

4. Defendant State of Florida, Department of High-

way Safety and Motor Vehicles, is the department of state

government principally charged to enforce the laws of the

State of Florida pertaining to the sale, titling and registra-

tion of automobiles, including § 320.02(9), Florida Stat-

utes (1984 Supp.). Defendant Jim Smith is Attorney

General of the State of Florida, who is joined as a party

defendant in order that he may be heard, agreeably to

§ 86.091, Florida Statutes (1983), and Rule 5(B) of this

Court.

Statement of the claims.

* + *

Count I: Federal Preemption.

9. The Clean Air Act, 42 U.S.C. § 7543, by virtue of

the Supremacy Clause of the United States Constitution,

preempts to the United States Congress and to EPA and

SA 3

Customs Service the establishment and enforcement,

through the point of first sale in the United States, of

motor vehicle emission standards of the character autho-

rized by the Clean Air Act. The State of Florida is pre-

empted from any such enforcement, as by requiring

certification or approval by a any official as a condition to

the first sale, titling, and registration of such automobiles

in the State of Florida... .

* * *

12. By Florida’s attempted enforcement of its stat-

ute, the-federal agencies having exclusive responsibility

to enforce the Clean Air Act and Vehicle Safety Act are

ousted from their discretionary powers to select one

effective method of enforcement rather than another;

plaintiff Sims and other individual importers are seri-

ously and irreparably damaged in the deprivation of their

property, its titling, registration, and effective use; plain-

tiff FICA’s members who business depend on titling and

registering such automobiles are irreparably damaged;

and the flow of foreign commerce is substantial and

unjustably impeded. Unless restrained and enjoined, the

defendants will continue so to enforce those unlawful

and preempted restrictions against plaintiffs and others.

Count II: Commerce Clause Unconstitutionality.

13. An important part of the commerce of the

Uniied States with foreign nations is the importation of

automobiles manufactured to foreign standards of emis-

sion and safety, for conversion and compliance modifica-

tion and testing to United States standards and for

delivery to importers. That foreign commerce has

SA 4

increased manyfold in recent years, due in part to the

great relative buying power of the American dollar in

foreign countries, and due also to foreign manufacturers

and their franchised dealers in the United States main-

taining high retail sale prices, relative to their costs of

manufacture overseas, for automobiles originally manu-

factured to United States emission and safety standards.

In consequence, importers and owners of automobiles not

originally manufactured to such standards, but modified

and converted to comply with those standards, compete

favorably with franchised dealers in the retail market,

thus promoting foreign commerce in those automobiles.

* * *

17. Plaintiff have been and will continue to be dam-

aged, as alleged in paragraph 12, unless defendants are

enjoined from their enforcement of Florida Statute

§ 320.02(9).

Count III: Unconstitutional by reason of

Art. I, Sec. 3, Constitution of Florida.

* * *

19. Florida’s statute § 320.02(9) violates Art. I, Sec. 3

of the Constitution of the State of Florida in that it pur-

ports to delegate such standard-setting power as may

remain to Florida, exercisable only by its legislative

branch, to officials in the executive branch of the Federal

government.

20. Plaintiff have been and will continue to be dam-

aged, as alleged in paragraph 12, unless defendants are

SA 5

enjoined from their enforcement of Florida Statute

§ 320.02(9).

WHEREFORE, plaintiffs pray for:

1. A declaratory judgment that § 320.02(9), Florida

Statutes (1984 Supp.), is preempted as alleged in Count I,

or unconstitutional as alleged in Count IJ, or unconstitu-

tional as alleged in Count II];

2. A preliminary and a permanent injunction

against the defendants, enjoining their further enforce-

ment and attempts to enforce the Florida statute; and

3. Such other and further relief as may be proper.

(Counsel’s signature omitted)

SA 6

SUPP. APP. B - ANSWER BY DEFENDANTS

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

MYRA HOLLADAY SIMS and

FLORIDA IMPORT AND COM-

PLIANCE ASSOCIATION, an CASE NO. 85-7214-WS

unincorporated association,

Plaintiffs,

Vs. ae

STATE OF FLORIDA, DEPART-

MENT OF HIGHWAY SAFETY

AND MOTOR VEHICLES and

JIM SMITH, ATTORNEY GEN-

ERAL OF THE STATE OF

FLORIDA,

Defendants.

/

_ ANSWER

(Filed Aug. 19, 1985)

The Defendants, by and through their undersigned

counsel, hereby file their answer to the Plaintiffs’ com-

plaint for deciaratory and injunctive relief, stating as

follows:

1. The Defendants admit that part of Paragraph 1

that states the jurisdiction of this Court, and the reason

the Plaintiffs are seeking relief against the Defendants.

However, the Defendants deny the remaining allegations

of Paragraph 1....

* * *

4. The Defendants admit the allegations of Para-

graph 4, but by stipulation in open court, the parties

SA 7

agreed that Jim Smith, Attorney General, should not be a

named party defendant to this action.

* * *

AFFIRMATIVE DEFENSES

First Affirmative Defense

This case must be dismissed for failure to add an

indispensable party, the United States Government.

Second Affirmative Defense

The Cause fails to state a claim upon which relief

may be granted.

Third Affirmative Defense

Count III of this action is barred by the Eleventh

Amendment of the United States Constitution.

Respectfully submitted,

JIM SMITH

ATTORNEY GENERAL

/s/ Mitchell D. Franks

Chief Trial Counsel

/s/ Walter Meginnis

Assistant Attorney General

/s/ Eric J. Taylor

Assistant Attorney General

Department of Legal Affairs

Suite 1501 - The Capitol

Tallahassee, FL 32301

(904) 488-1573

SA 8

/s/ Michael Alderman

Assistant Generali Counsel

Department of Motor Safety

Vehicles

Kirland Building

Tallahassee, FL 32301

(904) 488-1606

SUPP APP. C - MOTION TO DROP

ATTORNEY GENERAL AS PARTY

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

NO. 85-7214-WS

* * *

MOTION TO DROP DEFENDANT SMITH,

ATTORNEY GENERAL, AS A PARTY

(Filed Aug. 19, 1985)

Plaintiffs Sims and Florida Import and Compliance

Association move the Court to drop as a party to this

cause defendant Jim Smith, as Attorney General of the

State of Florida. Rule 21, F.R.C.P. Inasmuch as the Attor-

ney General was named a party only to afford him the

opportunity to be heard if he chose with party status, and

the Attorney General has expressed a preference that he

not be a named party, plaintiffs have not effected service

upon the Attorney General. It is, therefore, appropriate

that the Attorney General be dropped as a named party

in this matter. The Attorney General and defendant

SA 9

Department of Highway Safety and Motor Vehicles have

no objection to the granting of this motion.

(signature of Counsel omitted)

SUPP. APP. D - ORDER DROPPING ATTORNEY

GENERAL SMITH AS PARTY

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

NO. 85-7214-WS

* * *

REFERRAL AND ORDER

Referred to Chief Judge Stafford on August 19, 1985.

Type of Motion/Pleading Motion to Drop Defendant

Smith, Attorney General as a Party.

ORDER OF COURT

It is ORDERED this 29th day of August, 1985.

The relief requested above is granted.

/s/ William Stafford

WILLIAM STAFFORD

CHIEF JUDGE

SA 10

SUPP. APP. E - COURT OF APPEALS LETTER

TO COUNSEL FEB. 18, 1987

(letterhead)

United States Court of Appeals

Eleventh Circuit

February 18, 1987

TO ALL COUNSEL OF RECORD

Dear Counsel:

Re: No. 86-3055, Sims v. State of Florida

The court requests supplemental briefing on the fol-

lowing issues: .. . . (4) if the appellees do have standing

to bring this challenge to the Florida statute, is their claim

barred by the eleventh amendment of the United States

Constitution; and... ?

The court is concerned about the standing of appel-

lees to bring this action, about Florida’s sovereign immu-

nity under the eleventh amendment, and about the

possible mootness of appellee Sims’ claim. Although

these issues were not raised on appeal by the appellant,

the court is obliged to address them sua sponte. See, e.g.,

Bender v. Williamsport Area School Dist.,__.§. U.S. __, __,

106 S.Ct. 1326, 1331 (1986) (“[E]very federal appellate

court has a special obligation to ‘satisfy itself not only of

its own jurisdiction, but also that of the lower courts in a

cause under review,’ even though the parties are pre-

pared to concede it.”) (quoting Mitchell v. Maurer, 293 U.S.

237, 244, 55 S.Ct. 162, 165 (1934)); Juidice v. Vail, 430 US.

327, 331, 97 S.Ct. 1211, 1215 (1977) (“Although raised by

neither of the parties, we are first obliged to examine the

SA 11

standing of appellees, as a matter of the case-or-contro-

versy requirement associated with art. III, to seek injunc-

tive relief in the District Court.”); Sosna v. Iowa, 419 U.S.

393, 396 n.2, 95 S.Ct. 553, 555-56 n.2 (1975) (Supreme

Court addressed sovereign immunity question although

it was not raised by the parties).

(signature of Clerk omitted)

SUPP. APP. F - OBJECTION BY APPELLEES

SIMS & FICA

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

CASE NO. 86-3055

* * *

OBJECTION BY APPELLEES MYRA HOLLADAY SIMS

AND FLORIDA IMPORT AND COMPLIANCE ASSO-

CIATION TO CERTAIN INTERLOCUTORY RULINGS

AND ACTIONS BY 1HE COURT

(Filed in Court of Appeals Mar 27, 1987)

Plaintiffs and appellees Myra Holladay Sims and

Florida Import and Compliance Association respectfully

object to the following interlocutory rulings and actions

by this Court:

SA 12

2. They object to the Court raising sua sponte, as if it

were a jurisdictional defect of which the Court was

obliged to take notice, an “Eleventh Amendment

Defense” that was not previously raised by the only party

entitled to raise it, State of Florida, Department of High-

way Safety and Motor Vehicle. “[W]e have never held

that it [the Eleventh Amendment defense] is jurisdic-

tional in the sense that it must be raised and decided by

this Court on its motion.” Patsy v. Florida International

University, 457 U.S. 496, 515 fn. 19, 102 S.Ct. 2557, 73

L.Ed.2d 172 (1982). The Court’s communication dated

February 18 was in effect a solicitation of such a defense,

which appellant Department now has asserted.

* * *

(signature of Counsel omitted)

SUPP. APP. G - APPELLEES’ MOTION TO ADD

CHARLES BRANTLEY AS PARTY

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

CASE NO. 86-3055

* * *

MOTION OF PLAINTIFFS AND APPELLEES MYRA

HOLLADAY SIMS AND FLORIDA IMPORT AND COM-

PLIANCE ASSOCIATION TO ADD CHARLES J.

BRANTLEY AS PARTY DEFENDANT AND APPELLANT

(Filed Mar 27, 1987)

Plaintiffs and appellees Myra Holladay Sims and

Florida Import and Compliance Association, an unincor-

insta sicedeecadeeeaeeaniliaeiinaccaail

SA 13

porated association, move the Court to add as a party

defendant and appellant on such terms as are just, or

temporarily to relinquish jurisdiction to the District Court

that it may do so, Charles J. Brantley, Director of the

Division of Motor Vehicles, Florida Department of High-

way Safety and Motor Vehicles. Fed. R. Civ. P. 21.

(signature of Counsel omitted)

SUPP. APP. H - ORDER ON OBJECTIONS

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

CASE NO. 86-3055

ORDER

(Filed May 26, 1987)

Before TJOFLAT and HATCHETT, Circuit Judges, and

EATON*, Senior District Judge.

BY THE COURT:

Appellees’ objection to certain interlocutory rulings

and actions by the court is DENIED.

*Honorable Joe Eaton, Senior U. S. District Judge for the South-

ern District of Florida, sitting by designation.

SA 14

SUPP. APP. I - ORDER ON MOTION

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

CASE NO. 86-3055

ORDER

(Filed May 26, 1987)

Before TJOFLAT and HATCHETT, Circuit Judges, and

EATON’, Senior District Judge.

BY THE COURT:

Appellees’ motion to add Charles J. Brantley as a

party defendant-appellant to the above case is DENIED.

Further, appellees’ alternative motion to temporarily

relinquish jurisdiction to the U. S. District Court that it

may add Charles J. Brantley as a party defendant is

DENIED.

*Honorable Joe Eaton, Senior U. S. District Judge for the South-

ern District of Florida, sitting by designation.

SA 15

SUPP. APP. J - EXCERPT, IN BANC BRIEF OF APPEL-

LEES SIMS AND FICA BEFORE COURT OF APPEALS,

PAGE 48.

(Filed May 2, 1988)

+ * *

D. THE ATTORNEY GENERAL SHOULD BE

RESTORED AS A PARTY OR MR. BRANTLEY

SHOULD BE JOINED TO CURE ANY ELEV-

ENTH AMENDMENT IRREGULARITY.

The panel majority, noting the inequity of honoring

the State’s “untimely and compelled assertion of the sov-

ereign immunity defense,” op. at 684, was disposed to

remand to the district court the question of whether the

Division’s Mr. Brantley should be joined. The dissenting

judge did not differ in this, and noted a possible waiver

issue. We respectfully request the same relief from the

Court in banc. Patsy v. Board of Regents of the State of

Florida, 457 U.S. 496, 515 n. 19, 102 S.Ct. 2557, 2567 n. 19,

73 L.Ed.2d 172 (1982).

If the Court is disposed to resolve the matter here

and now, it should be done by ordering the Attorney

General restored as a party defendant. The Attorney Gen-

eral has been “present” throughout these proceedings

and has requisite to sue and be sued for the state. State ex

rel. Shevin v. Exxon Corp., 526 F.2d 266, 275 (5th Cir. 1976).

Young himself was Attorney General of Minnesota: Ex

Parte Young, 209 U.S. 123, 160, 28 S.Ct. 441, 454, 52 L.Ed.

714 (1908).

SA 16

SUPP. APP. K —- EXCERPT, IN BANC BRIEF OF APPEL-

LEES SIMS AND FICA BEFORE COURT OF APPEALS,

PAGES 48-50

(Filed May 2, 1988)

* * *

E. ATTORNEYS’ FEES SHOULD BE AWARDED

SIMS AND FICA SHOULD THEY PREVAIL,

FOR THE JUDGMENT REDRESSES A RIGHT,

PRIVILEGE OR IMMUNITY SECURED BY

THE CONSTITUTION AND LAWS.

Sims and FICA respectfully renew before the Court

in banc their motion filed September 1986 and denied by

the panel, ops. p. 675 fn. 6, for award of attorneys’ fees

pursuant to 42 U.S.C. §§ 1983 and 1988, and for leave to

amend their complaint as necessary to claim that

entitlement.

The Division is the properly named defendant for

this purpose. Glover v. Alabama Dept. of Corrections, 734

F.2d 691, 695-96 (11th Cir. 1984), vacated on other

grounds, 473 U.S. __, 106 S.Ct. 40, 88 L.Ed.2d 33 (1985),

on remand, 776 F.2d 964 (11th Cir. 1985).

“{T]he right to attorney’s fees under § 1988 is not

conditioned upon a judicial determination on the merits”

of a claim remediable under § 1983. ] & ] Anderson, Inc. v.

Town of Erie, 767 F.2d 1469, 1474 (10th Cir. 1985), summa-

rizing Maher v. Gagne, 448 U.S. 122, 132, 100 S.Ct. 2570, 65

L.Ed.2d 653, 663 (1980). Any necessary amendment to

make the attorney fee claim is a formality conforming to

the proofs and district court findings. Brandon v. Holt, 469

SA 17

U.S. 464, 471 at n. 19, 105 S.Ct. 873, 83 L.Ed.2d 878, 885

(1985).

The Judgment redresses the deprivation of a rignt,

privilege or immunity secured to appellees by the law of

the United States, specifically the second sentence of 42

U.S.C. § 7543(a), securing appellees in the federal privi-

lege or immunity of acquire tag and title free of any

condition precedent imposed by the state by way of certi-

fication, inspection or other approval. See Maine v.

Thiboutot, 448 U.S. 1, 4, 100 S.Ct. 2502, 65 L.Ed.2d 555, 559

(1980).

Appellees’ claim is based too on the Equal Protection

Clause of the Fourteenth Amendment, which the district

court recognized sufficiently for this purpose by refer-

ence to Florida having isolated these cars alone for dis-

criminatory treatment, after discontinuing its general

inspection program.

“Section 1988 requires a strong showing of special

circumstances to justify denying an award of attorneys’

fees and costs to the prevailing party in a section 1988

claim.” Riddell v. National Democratic Party, 624 F.2d 539,

543 (Sth Cir. 1980).