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

new a

, Supréifis Court, U.S,

FILED

AUG 18 1989

No. 89-19 JOSEPH F. SPANIOL, Jn.

| CLERK |

IN THE —

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

MYRA HOLLADAY SIMS and FLORIDA

IMPORT AND COMPLIANCE ASSOCIATION,

Cross-Petitioners,

vs.

STATE OF FLORIDA, DEPARTMENT OF

HIGHWAY SAFETY AND MOTOR VEHICLES,

and CHARLES J. BRANTLEY, DIRECTOR

DIVISION OF MOTOR VEHICLES,

Cross-Respondents.

BRIEF IN OPPOSITION TO

CROSS-PETITION FOR WRIT OF CERTIORARI

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

ERIC J. TAYLOR

Assistant Attorney General

Counsel of Record

Office of the Attorney General

The Capitol

Tallahassee, FL 32399-1050

(904) 487-2142

Attorneys for Cross-Respondents

QUESTIONS PRESENTED

Whether Edleman v. Jorda:, 415 U.S.

651 (1974) and Ford Motor Co. v.

Department of the Treasury, 323 U.S.

459 (1945), foreclose the holding of

the Court of Appeals that the State

of Florida waived its Eleventh

Amendment immunity simply because it

did not raise the Eleventh Amendment

until appeal and was represented by

the State's Attorney General below?

And, whether the Court of Appeals

properly added, sua sponte, as a

defendant, the Director of the

Division of Motor Vehicles, Florida

Department of Highway Safety and

Motor Vehicles, in contravention of

the Federal Rules of Civil Procedure,

to avoid the Eleventh Amendment bar?

Whether the issue of attorney's fees

was properly denied by the Court of

Appeals. or, in the alternative,

whether the question was sufficiently

ruled upon by the Court of Appeals

below to allow this Court to review

the denial of attorney's fees to the

Cross-Petitioners.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED

TABLE OF AUTHORITIES

STATEMENT OF THE CASE

REASONS FOR GRANTING THE

FIRST QUESTION OF THE

CROSS-PETITION

THE ELEVENTH AMENDMENT OF

THE UNITED STATES

CONSTITUTION BARS FEDERAL

COURT JURISDICTION IN

THIS CASE

REASONS FOR DENYING THE

SECOND QUESTION OF THE

CROSS-PETITION

A. THE ISSUE OF ATTORNEY'S

FEES WAS NOT PRESENTED IN

THE DISTRICT COURT

B. THE QUESTION OF ATTORNEY'S

FEES WAS CORRECTLY DECIDED

BY THE COURT OF APPEALS OR,

IN THE ALTERNATIVE, NOT

SUFFICIENTLY ADDRESSED IN

THE COURT OF APPEALS' OPINION

TO ALLOW THIS COURT TO ADDRESS

THAT QUESTION ON THE MERITS

CONCLUSION

il

15

29

29

31

36

TABLE OF AUTHORITIES

Cases Page

Clark v. Barnard,

108 U.S. 436 (1883) 19

Cory v. White,

457 U.S. 85 (1982) 18, 19

Dugan v. Rank,

372 U.S. 609 (1963) 18

Edelman v. Jordan,

415 U.S. 651 (1974) 19, 21, 22

24, 26

Estate of Ritter v.

University of Michigan,

851 F.2d 846

(6th Cir. 1988) 23-25, 26

Ex Parte Young,

209 U.S. 123 (1908) 19-20

Fincher v. State of Florida

Department of Labor,

798 F.2d 1371

(llth Cir. 1986) 20

Ford Motor Co. v.

Department of Treasury,

323 U.S. 459 (1945) 18, 19

21-22

Gamble v. Florida Department

of Health and Rehabilitative

Services, 779 F.2d 1509

(llth Cir. 1986) 20

iii

Manatee Conty v. Town of

Longboat Key,

356 So.2d 143 (Fla.

1978)

Ohio,

32 (1918)

Palmer v.

248 U.S.

Papisan v. Allian,

478 U.S. 265 (1986)

Pennhurst State School &

Hospital v. Halderman,

465 U.S. 89 (1984)

Welch v. State Department of

Highways, U.S. >

107 S.Ct. 2941 (1987)

UNITED STATES CONSTITUTION

Eleventh Amendment

UNITED STATES CODE

15 U.S.C.

15 UemeGe

§1381 et seq.

§ 1397

28 U.S.C. §2201

42 U.S.C. §1983

42 U.S.C.

42 U.S.C.

§1988

§7521, et seg.

FLORIDA CONSTITUTION:

Article X, Section 13,

lv

a

18,

so”

20

19

18

19

18

28

19

FLORIDA STATUTES

Section 320.02(9),

Florida Statutes, (1985) passim

a

STATEMENT OF THE CASE

The Cross-Respondents do not accept the

Cross-Petitioners' Statement of the Case.

Cross-Respondents rely upon their Statement

of the Case made in their Writ of

Certiorari, Case Ne. 88-1950, repeated

partially as follows.

Section 320.02(9), Florida Statutes

(1985) requires that all vehicles not

manufactured in accordance with the Federal

Clean Air Act, 42 U.S.C. §7521 et seq., and

the Motor Vehicle Safety Act, 15 U.S.C.

§1381 et seg., must be in compliance with

the two federal acts before the vehicles

can be sold to consumers, titled or

registered in Florida. Proof of this

compliance is evidenced by a letter from

the United States Customs Service (Customs)

or letters from the United States

Department of Transportation (DOT) and the

United States Environmental Protection

Agency (EPA).

On April 30, 1985, Mrs. Sims purchased

a used 1976 Mercedes’~ Benz 450 SEL

(Mercedes) from Ulrich Kiesewalter of Bonn,

West Germany. The car was exported from

Europe on April 6, 1985 and imported into

the United States at Jacksonville, Florida,

on April 30, 1985. The actual sale of the

vehicle took place upon its arrival in

Jacksonville.

Under federal law, a vehicle not

manufactured in accordance with the Clean

Air Act, 42 U.S.C. §7521 et _seg., or the

Motor Vehicle Safety Act, 15 U.S.C. §1381,

et seg., may not be imported into the

United States. See, 42 U.S.C. §7522 and 15

U.S.C. §1397. Customs permits physical

presence of vehicles not manufactured in

accordance with the two laws intoc the

country for the sole purpose of

modification. However, until the two

federal laws are fully complied with, the

vehicle is not "legally" within the United

States for unrestricted use. Because of

the two laws and Customs regulations, Mrs.

Sims posted a Customs Bond and notified

both EPA and DOT's National Highway Traffic

Safety (NHTSA) of her importation of a non-

conforming vehicle.

Mrs. Sims received a letter of

exemption from EPA on June 3, 1985, stating

that her car did not have to be converted

or modified as long as she met EPA's stated

requirements. Mrs. Sims received this

letter because her vehicle fit into one of

EPA's exemptions from physical

modification.

On June 3, 1985, Mrs. Sims submitted

her Safety Act conversion documentation to

NHTSA. At that time, however, NHTSA lacked

sufficient staff to quickly process the

backlog of pending gray market vehicle

paperwork. In fact, at the time this

lawsuit was instituted, in 1985, importers

were waiting up to nine (9) months after

Submitting the paperwork to receive proof

of compliance.

Mrs. Sims attempted to obtain Florida

title and registration documents for her

1976 Mercedes Benz from the State of

Florida. However, due to the NHTSA

paperwork backlog, she was unable to

produce the documents required by Florida

law. Therefore, the Department refused to

title or register her car until she could

produce letters of compliance from both EPA

and from NHTSA or Customs.

Cross-Petitioners' complaint was filed

on July 25, 1985 in the United States

District Court for the Northern District of

Florida. Named in the complaint were the

Cross-Respondent Florida Department’ of

Highway Safety and Motor Vehicles and Jim

Smith in his official capacity as Attorney

General of the State of Florida. However,

only the Cross-Respondent Department was

served with a summons’ and _ complaint.

Counsel for Attorney General Smith

questioned his being named in the suit at

which point the Cross-Petitioners

voluntarily dismissed Attorney General from

the suit. No other individual state

official was added to the suit at that time

Or any time later.

The complaint alleged that Section

320.02(9), Florida Statutes (1985), was

unconstitutional because it violated the

Supremacy and Commerce Clauses of the

United States Constitution. The complaint

sought declaratory and injunctive relief.

A final hearing/trial was held by the

district court on September 12, 1985, and

the court issued its Order and “Final

Judgment on December 30, 1985, finding that

Section 320.02(9) was unconstitutional as

it was preempted by both federal acts. The

case waS appealed to the United States

Court of Appeals for the Eleventh

Circuit. Four days before oral argument

was scheduled to be heard by the panel, at

the end of September, 1986, Cross-

Petitioners, for che first time, moved the

Court of Appeals to amend their complaint

to add a civil rights claim under 42 U.S.C.

§1983 and also moved for attorneys' fees

under 42 U.S.C. §1988.

Subsequent to oral argument, the panel,

by letter of February 18, 1987, notified

the parties that it wished further briefing

on a list of questions prepared by the

panel. Two of the five questions raised by

the panel were whether the Eleventh

Amendment barred the action then pending

before the court and whether the Cross-

Petitioners had standing to challenge the

—

Florida statute. The Department responded

by asserting its Eleventh Amendment

immunity, and that the Cross-Petitioners

did not possess standing to challenge the

Florida law.

The Eleventh Circuit panel, by a

decision of 2-1, reversed in part and

affirmed in part the final order of the

district court and remanded the case for

further proceedings consistent with its

decision. Its decision was reported at 832

F.2d 1558 (llth Cir. 1987). In particular,

it held that the case should be remanded to

the district court to see if the Cross-

Petitioners should be granted leave to

amend their complaint, implicitly finding

that the Department had waived its immunity

(832 F.2d at 1570) and denied the Cross-

Petitioners’ motion for amendment of their

complaint and for attorneys' fees (832 F.2d

at 1563, fn. 6).

On December 21, 1987, the Cross-

Respondent Department filed a Petition for

Rehearing and Suggestion for Rehearing In

Banc with the court. On March 1, 1988, the

Court — granted the Cross-Respondent

Department's Petition and ordered a

rehearing in banc. 840 F.2d 778 (llth Cir.

1988). The case was rebriefed on all the

issues raised and decided before’ the

panel. Cross-Petitioners again argued for

attorneys' fees, this time in their in banc

brief.

On January 11, 1989, the Court of

Appeals issued its in banc opinion. Sims

v. State of Florida, Department of Highway

Safety and Motor Vehicles, 862 F.2d 1449

(llth Cir. 1989). The decision found that

Section 320.02(9) was not preempted by the

Safety Act but was preempted by the Clean

Air Act. However, the court struck the

entire law without making any attempt to

determine if the invalid portion of Section

320.02(9) could be severed from_ the

remaining valid provision and upheld. In

addition, the Court of Appeals determined

the Eleventh Amendment was waived by the

Department for a variety of reasons,

including that it raised the immunity

defense late in the proceedings and and

there was a lack of prejudice to the state

officials since the Florida Attorney

General had represented the state

throughout. Finally, the Court of Appeals

denied all outstanding motions then

pending, including Cross-Petitioners'

motion for attorneys' fees.

On January 27, 1989, the Cross-

Respondent moved for rehearing in banc

asking the court to determine whether it

was possible to sever the valid provisions

of Section 320.02(9). The Court of Appeals

denied the motion for rehearing on March 2,

1989. Cross-Respondents then filed in this

Court their Petition for Writ of

Certiorari. State of Florida, etc. v. Myra

Holladay Sims, et al, Case No. 88-1095.

In addition, Cross-Respondents would

make the following responses and additions

to the Statement of the Case as set out by

the Cross-Petitioners. While the former

~Attorney General of the State of Florida,

Jim Smith, was "named" in the caption of

the Cross-Petitioners' complaint, he was

never served by the Cross-Petitioners.

Counsel for Attorney General Smith informed

the Cross-Petitioners, after receiving

notice of the suit, that it was his intent

to file a motion to dismiss him as a party

as he was not a real party in interest.

This was based not only on him not having

primary authority to enforce Section

320.02(9), Florida Statutes, but also upon

the Cross-Petitioners' assertion that

«~ 169

Attorney General Smith was being "joined as

a party defendant in order that he may be

heard, agreeably to §86.091, Florida

Statutes (1983), and Rule 5(B) of the

Court." Complaint, para. 5, pp. 4-5.

Therefore, Attorney General Smith was

not being named to "neutralize" the

Eleventh Amendment, but as a mere courtesy

and a requirement under the local district

court rules. But whatever was in the minds

of the Cross-Petitioners, they never had

the former Attorney General served with

process and voluntarily dismissed him from

the suit. Subsequent to that dismissal,

Cross-Petitioners made no attempt to name

Or serve another official of the State of

Florida who may have had jurisdiction over

Section 320.02(9), Florida Statutes.

In addition, Cross-Petitioners'

assertion in the statement of the case that

the Attorney General appeared as a party

= 12 -

overlooks the fact that under Florida law,

law that is binding in Eleventh Amendment

cases, the Attorney General does not have

either constitutional or statutory

authority to waive the State's, or any of

its agencies, Eleventh Amendment

immunity. Consequently, the suit, after

the dismissal of the Attorney General, was

without any named state official.

The Statement of the Case of the Cross~

Petitioners implies that their original

complaint, filed in July, 1985, contained a

Claim brought under 42 U.S.C. §1983.

However, this was not the case. The

complaint sought relief under the

Declaratory Judgment Act, 28 U.S.C. §§2201

and 2202 seeking a declaration that Section

320.02(9), Florida Statutes, was in

violation of the Supremacy Clause as the

Florida statute was preempted by the Clean

Air Act and the Federal Highway Safety

- 12 «

Act. Complaint, p. 2-3. Jurisdiction was

sought under 28 U.S.C. §1331, federal

question jurisdiction. Complaint, p. 2.

At no place in the complaint was relief

sought under the Civil Rights Act, 42

U.S.C. §1983, no allegation of a violation

of anyone's civil rights nor a request for

attorney's fees under 42 U.S.C. §1988.

On September 25, 1986, four days before

the scheduled oral argument before the

three judge panel of the Eleventh Circuit,

Cross-Petitoners mailed their motion to

amend their complaint and a request for

attorneys’ fees. The panel, at oral

argument, permitted the Cross-Respondents

time in. which to respond to the Cross-

Petitioners’ “motion. Cross~-Respondents

responded by asserting a number of grounds

in which to deny the Cross-Petitioners'

motion. The panel denied this motion. 832

F.2d 1558, 1563, fn. 6.

a

The Cross-Petitioners again moved in

their answer brief to the in banc Court for

attoirney's fees. Cross-Respondents were

not permitted a response to the Cross-

Petitioners' in banc answer brief.

Contrary to Cross-Petitioners' assertion in

their Statement of the Case, p. 15, Cross-

Respondents did not consent to any unplead

claim, equal protection or other claim,

being tried before the district court. The

only issue tried was the one presented,

preemption. In addition, there has never

been a ruling that the Cross-Petitioners

possessed any "right, privilege, or

immunity" under the Clean Air Act or that

they prevailed in vindicating any "civil

right.” Because of the Court of Appeals

decision, no one is sure why the Court of

Appeals denied the Cross-Petitioners'

request for attorney's fees.

REASONS FOR GRANTING THE FIRST

QUESTION OF THE CROSS-PETITION

While the Cross-Respondents agree with

the Cross-Petitioners that the Eleventh

Amendment question should be accepted by

this Court, the Cross-Respondents disagree

with the Cross-Petitioners characterization

of the question and their reasons. for

accepting jurisdiction in this case.

THE ELEVENTH AMENDMENT OF THE

UNITED STATES CONSTITUTION BARS

FEDERAL COURT JURISDICTION IN THIS CASE.

This case was initially filed by the

Cross~-Petitioners against the State, its

Department of Highway Safety and Motor

Vehicles, and the State's Attorney

General. Shortly after the commencement of

this action the Cross-Petitioners dismissed

the Attorney General from the suit and at

the time of trial and decision of the

Gistrict court and ever since, no

= }§ « =~

individual state official was a named party

to the action. The Court of Appeals ruled

that the Cross-Respondents waived their

immunity under the Eleventh Amendment for

the reason that it would be an abuse of

discretion if, on remand, the district

court should deny a motion to add as a

defendant a named official. 862 F.2 at

1460.

The court found this waiver because the

Cross-Respondents had not raised the

immunity defense at trial or initially on

appeal and that the State was not

prejudiced by the lack of a named official

because the Florida Attorney General, while

having been dismissed from the suit by the

Cross-Petitioners, represented the State's

interest throughout the case. Id., at 1460

and n. 16. To avoid the Eleventh Amendment

bar, the Court of Appeals added Mr. Charles

J. Brantley, Director of the Division of

="%6 «

Motor Vehicles and announced that_ the

Eleventh Amendment had been satisfied.

The issues raised by the in banc

decision are of great importance to the

States. Not only does the in banc decision

conflict with all decisions of this Court

but it also directly conflicts with a

decision of the Sixth Circuit Court of

Appeals involving nearly identical facts

and the same issues.

The decision below is in-— direct

conflict with this Court's decisions on

when the Eleventh Amendment immunity

defense may be raised and how the immunity

defense is to be resolved when it is raised

for the first time on appeal. The decision

also recognizes an unprecedented form of

waiver (no prejudice because a state or one

of its agencies is represented by the

State's attorney general) and a new remedy

to correct the failure to properly name a

~ +9 «

State official (sua sponte naming the head

of the state agency involved). The naming

of a state officiel at the appellate level

also runs afoul of the Due Process Clause

as the state official is denied any

Opportunity to be heard. See, 862 F.2d

1469, Tjoflat, J., dissenting.

There is no question that, as a general

rule, a state or one of its agencies,

Cannot be sued in federal court without its

consent. Welch v. State Department of

Highways, U.S. > 107 8.Ct.:. 204)

(1987); Pennhurst State School & Hospital

v. Halderman, 465 U.S. 89, 100 (1984);

Dugan v. Rank, 372 U.S. 609 (1963); Ford

Motor Co. v. Department of Treasury, 323

U.S. 459 (1945). This is a jurisdictional

bar which applies regardless of the nature

of the relief sought. Papisan v. Allain,

478 U.S. 265 (1986); Pennhurst, 465 U.S.,

at 100; Cory v. White, 457 U.S. 85 (1982)

- 18 -

(injunctive relief). And, important for

this case, the Eleventh Amendment may be

raised at any time, Edelman v. Jordan, 415

U.S. 651 (1974), including for the first

time on appeal. Ford Motor Co., supra.

While a state may consent to suit in

federal court, Pennhurst, 465 U.S., at 99;

Clark v. Barnard, 108 U.S. 436, 447 (1883),

the state's consent must be unequivocal;

Pennhurst, 465 U.S., at-~99; Edelman vv.

Jordan, 415 U.S. at 673. A waiver of the

state's immunity must be explicitly

authorized by the state in its constitution

or laws. Palmer v. Ohio, 248 U.S. 32, 43

(1918). Only the state itself may decide

when and where to waive its immunity.

Pennhurst, 465 U.S., at 99. In addition, a

state may not be sued for injunctive

relief, Cory v. White, supra. In order to

acquire injunctive’ relief, an individual

state offical must be named. Ex Parte

- 19 -

Young, 209 U.S. 123 (1908).

The State of Florida has not waived its

Eleventh Amendment immunity. The sovereign

immunity of Florida can only be waived by

the Florida Legislature. Article xX,

Section 13, Florida Constitution; Tuveson

v. Florida Governor's Council on Indian

Affairs, Inc., 734 F.2d 730, 734 (llth Cir.

1984); Manatee County v. Town of Longboat

Key, 356 So.2d 143, 147 (Fla. 1978).

Furthermore, the Eleventh Circuit has ruled

in other cases that the Florida Legislature

had not legislatively waived the State's

immunity in federal court. See, Fincher v.

State of Florida Department of Labor, 798

F.2d 1371, 1372 (llth Cir. 1986); Gamble v.

Florida Department of Health and

Rehabilitative Services, 779 F.2d 1509

(llth Cir. 1986). The Florida Legislature

has expressly reserved the State's, and its

agencies', Eleventh Amendment’ immunity.

- 20 -

Section 768.28(16), Florida Statutes

(1987). The Legislature has not authorized

the Florida Attorney General to waive

Florida's immunity in any case in which he

may appear on behalf of the State or one of

its agencies. Therefore, Florida's

Eleventh Amendment immunity could not be

and was not waived by the appearance of the

Attorney General defending this action

below.

The Court of Appeals ruled that the

State waived its Eleventh Amendment

immunity because it did not ‘raise the

defense at trial or initially upon

appeal. Such a ruling negates the holdings

of this Court that the Eleventh Amendment

"need not be raised in the trial court",

Edelman v. Jordan, 415 U.S. at 678, and

that the Eleventh Amendment immunity can

even be raised for the first time on

appeal, Ford Motor Co., 323 U.S. at 466-

- 21-

a alle

467. In both cases, the immunity defense

was not raised at trial.

In Ford Motor Co., the State of Indiana

did not assert its Eleventh Amendment

immunity until the case reached this

Court. Ford Motor Company argued that

Indiana had thus waived its Eleventh

Amendment immunity defense. This Court

rejected that argument saying:

the objection to petitioner's suit

as a violation of the Eleventh

Amendment was first made and

argued by Indiana in this Court.

This was in time, however. The

Eleventh Amendment declares a

policy and sets forth an explicit

limitation on federal judicial

power of such compelling force

that this Covrt will consider the

issue arising under this Amendment

in this case even though urged for

the first time in this Court.

Ford Motor Co., 323 U.S. at 466-67. This

Court reaffirmed that holding in Edelman v.

Jordan, supra. There the Illinois

officials failed at the district court to

raise the immunity defense after being

= 99 «

sued. The Court reaffirmed that’ the

Eleventh Amendment defense could be raised

for the first time either on appeal before

a circuit court or before this Court. Id.,

415 U.S. at 677-78.

The decision of the Court of Appeals

below is also in direct conflict with a

decison of the Sixth Circuit Court of

Appeals on the same issue of waiver. In

the case of Estate of Ritter v. University

of Michigan, 85l F.2d 846 (6th Cir. 1988),

the Sixth Circuit was faced with a factual

situation nearly identical to that

presented here. The University of Michigan

Board of Regents was sued in the Michigan

Court of Claims. No individual officials

of the Board were named in the action.

Id., 851 F.2d at 849. The Board removed

the case to federal district court and

defended the case on the merits, failing to

assert its Eleventh Amendment immunity.

o 23 =

Id. The district court granted summary

judgment for the Board on the merits and

the plaintiff appealed. Id. at 848. The

case was briefed and argued on its merits

before the appellate court. Id. At oral

argument, the Court of Appeals, raised the

guestion of the Board's Eleventh Amendment

immunity. id. Counsel were requested to

file supplemental briefs on the issue and

the Board's counsel responded by asserting

the Eleventh Amendment immunity defense.

Id. The plaintiff responded by asserting

the Board had waived the immunity defense

by removing the case and not raising the

immunity defense earlier. Id. The Court

of Appeals rejected the plaintiff's

arguments. Relying on the decisions of

this Court in Ford Motor Co. and Edelman v.

Jordan, it ruled that the Board had not

waived its immunity as the Eleventh

Amendment defense could be raised at any

« 34 «

time. Id. at 851. The court also ruled

that a state's appearance and defense on

the merits was no bar to the immunity

defense. Id. at 852. This case factually

is no different than Ritter.

In this case, Court of Appeals also

ruled that the Cross-Respondents could not

assert the Eleventh Amendment’ immunity

defense, finding that the State and its

officials were not prejudiced because the

Florida Attorney General represented the

Cross-Respondents threughout the

proceeding. Neither this Court, nor any

other court, has ever ruled that "lack of

prejudice to the state or its officials"

waS a proper ground for disregarding the

express provisions of the Eleventh

Amendment.

As this ruling is without precedent,

this Court's review is imperative because

nearly all states use their attorneys

- 25 -

general, or other state employed attorneys,

to defend actions against the state and its

agencies. If such a ruling were allowed to

stand, every time an attorney general

appeared, defended on the merits and failed

to raise the immunity issue at trial, he

would waive it for that state, thereby

negating the holdings of this Court. See,

Edelman v. Jordan, 415 U.S. at 677-78. See

also, Estate of Ritter v. University of

Michigan, 851 F.2d at 852.

The Court of Appeal's attempt to

circumvent the Eleventh Amendment by the

Sua sponte addition of a state official

runs counter to the the Federal Rules of

Civil Procedure. The action of the Court of

Appeals contravenes Rule 21 on the addition

of parties and Rule 43 on the substitution

of parties. There is no precedent for the

action of the Court of Appeals to correct

the failure of the Cross-Petitioners to

~» 96 =

+ - ola

retain or substitute the proper party.

Finally, the decision below denies the

state official added by the in banc court,

Cross-Respondent Charles J. Brantley, his

constitutional right to due process of

law. See, 862 F.2d 1469, Tjoflat, J.,

dissenting. The newly named official would

not be served with the complaint in the

case; would not have a right to assert any

defenses he may have to the issues in the

case; and may likely be saddled with a

legal position advanced by the~= state

attorney general that he may disagree

with. This lack of basic due process has

never been condoned by this Court and has

never been a consequence of asserting a

state's Eleventh Amendment immunity.

For these many reasons, this Court

should take jurisdiction of this case and

decide whether a state's Eleventh Amendment

immunity is waived when not raised until

> 37 «

appeal or where the court finds a "lack of

prejudice"; whether the sua sponte addition

of an individual at the appellate level is

constitutionally permissible and in

accordance with federal rules of procedure;

and the rights of a state official to due

process when he was not a party to the

action in the trial court. The Cross-

Respondents request that this Court reverse

the judgment of the Court of Appeals and

order the case remanded to the district

court and dismissed.

REASONS FOR DENYING THE SECOND

QUESTION OF THE CROSS-PETITION

A. NO CLAIM UNDER 42 U.S.C. §1983

WAS ALLEGED BY THE CROSS-

PETITIONERS IN THE COMPLAINT

BEFORE THE DISTRICT COURT

When originally filed in July, 1985,

the Cross-Petitioners' complaint only

sought declaratory relief, seeking a

declaration that Section 320.02(9), Florida

Statutes, was in conflict with the

Supremacy Clause of the United States

Constitution because of the presence of the

Motor Vehicle Safety Act, 15 U.S.C. §1381,

et seq. and the Clean Air Act, 42 U.S.C.

§7521, et seq. The Complaint contained no

allegations of any violation of the Cross-

Petitioners' civil rights.

Consequently, the Cross-Respondents did

not address or rebut any evidence that may

have sounded like evidence for a civil

rights claim. They specifically did not

consent to any such issues being raised or

tried before the district court.

Specifically, they would have argued that

the Supremacy Clause nor the ‘Commerce

Clause create any "right, privilege or

immunity" that is protectable by the

Constitution or federal law. See, e@.g.,

Chapman Vv. Houston Welfare Rights

Organization, 441 U.S. 600 (1979).

Subsequent to the decision of the

district court on December 30, 1985, the

Cross-Petitioners did not move for an award

of attorney's fees under 42 U.S.C. §1988 or

any other legal theory.

- 30 -

B. THE COURT OF APPEALS PROPERLY

DENIED THE CROSS-PETITIONERS '

MOTION FOR ATTORNEYS" FEES OR,

IN THE ALTERNATIVE, DID NOT

SET OUT IN ITS DECISION ANY

REASONING FOR ITS DENIAL OF

CROSS-PETITIONERS' MOTION FOR

ATTORNEYS' FEES THAT WOULD PERMIT

THIS COURT TO DETERMINE WHETHER

THE DENIAL OF THE MOTION WAS

LEGALLY SUPPORTABLE.

Shortly after the district court

rendered its decision, the Cross-Respondent

Department of Highway Safety filed its

notice of appeal. The case was forwarded

to the Court of Appeals in early 1986 and

thoroughly briefed by both parties. After

Oral argument was set for the last week of

September, 1986, and just four days before

Oral argument was to be held, the Cross-

Petitioners, for the first time, moved-to

amend their district court complaint with a

Civil rights claim and requested attorney's

fees.

- 3] -

Counsel for the Cross-Petitioners

addressed this motion to the court of

appeals at oral argument. Because of the

short notice, counsel for the Cross-

Respondent was unprepared to address the

issues raised in the motion. The court of

appeals allowed Cross-Respondent's counsel

time in which to respond to the motion.

Cross-Respondent responded by cenbekint

that the attempted amendment of the

complaint at that late of date (after close

of the trial, final judgment, notice of

appeal, briefing and just before oral

argument) was against all weight of law as

the requested amendment was not timely;

resulted in nceienies to the opposing

party; and was bad faith on the part of the

moving party. See, Foman v. Davis, 371

U.S. 178, 182 (1962).

In addition, the Cross-Respondent

asserted that neither the Supremacy Clause

- 32 -

or the Commerce Clause would support an

award of attorney's fees as neither Clause

concerns individual rights necessary for

protection. See, White Mountain Apache

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

1987); J&J Anderson, Inc. v. Town of Erie,

767 F.2d 1469 (10th Cir. 1985); Gould, Inc.

v.Wisconsin Dept. of Industry, Labor and

Human Relations, 750 F.2d 608 (7th Cir.

1984); Consolidated Freightways Corp. v.

Kassel, 730 F.2d 1139 (8th Cir. 1984). The

court of appeals denied the Cross-

Petitioners' motions without comment.

First, the Court of Appeals was correct

in denying the Cross-Petitioners' motion

for attorneys’ fees. As the Supremacy

Clause does not create any right, privilege

or immunity within the meaning of 42 U.S.C.

§1983, Chapman v. Houston Welfare Rights

Organization, 441 U.S. 600, 615 (1979),

Pirolo v. City of Clearwater, 711 F.2d

- 33 -

1006, 1010-1011 (llth Cir. 1983), a final

court order based upon the Supremacy Clause

does not give rise to an award of

attorney's fees, White Mountain Apache

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

1987); Gould, Inc. v. Wisconsin Dept. of

Industry, Labor and Human Relations, 750

F.2d 608 (7th Cir. 1984). The decision of

the Eleventh Circuit is consistent with

decisions of the other circuits.

Therefore, there is no legal or practical

reason this Court needs to accept

jurisdiction to decide the attorney's fees

question.

In the alternative, the decison of the

Court of Appeals is not in proper form for

consideration by this Court. Without a

specific finding by the Court of Appeals as

to which of the many possible grounds

presented to the court by the Cross-

Respondent for denial, we have no way of

- 34 -

knowing upon which ground the Court of

Appeals decided. Without knowing’ the

specific reason the court denied the Cross-

Petitioners' motion, it would be pure

speculation as to what this Court would

address on the merits or what question was

to be resolved.

If this Court believes the issue of

awarding of attorney's fees to the Cross-

Petitioners needs to be addressed, then it

would be best for the Court to remand the

case to the Eleventh Circuit Court of,

Appeals to give that court the opportunity

to cleary state its reasoning in writing

for denying the Cross-Petitioners' en

for attorneys' fees. At this point, it is

premature to address the attorney's fees

question on the merits.

CONCLUSION

For the reasons set out, this Court

should grant that part of the Cross-

Petition For Writ of Certiorari seeking

review of the Eleventh Amendment question.

However, the Court should deny that

part of the Cross-Petition seeking review

of the attorneys' fees question as Cross-

Petitioners did not timely present a

potential claim for relief when they had

the opportunity to do so or that the Court

of Appeals was correct in its decision to

deny a motion for attorney's fees. In the

alternative, the Court has not_ been

presented with a decision from the court of

appeals that would allow it to decide the

attorney's fees question on the merits and

the case should be remanded to the Court of

Appeals for clarification.

Dated: August , 1989.

Respectfully submitted

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

ERIC J. TAYLOR

Assistant Attorney General

Counsel of Record

STATE OF FLORIDA

OFFICE OF THE ATTORNEY

GENERAL

The Capitol

Tallahassee, Florida

32399-1050

(904) 487-2142

Counsel for Cross~Respondents