Opposition Brief — Sonnenburg v. Bayh
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S74
No. 91-975
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1991
LEO J. SONNENBURG, GERALD HARNETT -
and DENNIS SHEFFIELD,
Petitioners,
y.
EVAN BAYH, Governor of the State of Indiana
and JERRY THADEN, Commissioner of the
Indiana Department of Mental Health,
Respondents.
BRIEF IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI
TO THE INDIANA SUPREME COURT
LINLEY E. PEARSON
Attorney General of Indiana
ROBERT S. SPEAR
Chief Counsel
DAVID MICHAEL WALLMAN
Counsel of Record
Office of Attorney General
219 State House
Indianapolis, Indiana 46204
Telephone: (317) 232-6315
Attorneys for Respondents
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QUESTIONS PRESENTED
I. Whether the “civic duty” or other common law excep-
tions to the Thirteenth Amendment apply to state mental
patients engaged in now-discontinued therapeutic work pro-
grams from 1970 to 1974?
Il. Whether this Court should create, in the absence of
enabling legislation, a direct cause of action for damages under
the Thirteenth Amendment?
Il]. Whether the patients’ claim under the Federal Fair
Labor Standards Act (FLSA) based on work performed from
1970 to 1974 was correctly rejected by the Indiana Supreme
Court on the basis of this Court’s retrospective decision in Na-
tional League of Cities v. Usery, 426 U.S. 833 (1976), and
other procedural defects?
TABLE OF CONTENTS
QUESTIONS PRS 6 08 6 Ss ena ees
TABLE OF AUTHORISED . once ccc cu cureses
BRIEF IN OPPOSITION TO PETITION
FOR WRIT OF CERTIORARI TO
THE INDIANA SUPREME COURT ..........
REASONS FOR DENIAL OF THE WRIT: .......
I. AS THE THIRTEENTH AMENDMENT
DOES NOT PROHIBIT THE ASSIGN-
MENT OF MENTAL PATIENTS TO
INDUSTRIAL THERAPY, A GRANT OF
CERTIORARI WOULD NOT RESOLVE
A SUBSTANTIAL FEDERAL QUESTION
ON THE FACTS OF THIS CASE ............
A. THIS COURT REAFFIRMED THE
SCOPE OF COMMON LAW EXCEP-
TIONS TO THIRTEENTH AMEND-
MENT APPLICATION IN UNITED
STATES v. KOZMINSKI, 487 U.S. 931
(1988) AND THIS CASE MERELY
PRESENTS APPLICATION OF THE
EXCEPTIONS TO THESE NON-
re eee
B. THE PRACTICE OF UNCOMPEN-
SATED THERAPEUTIC PATIENT
LABOR, WHILE COMMON AT THE
TIME, WAS DISCONTINUED IN 1974....
u
13
TABLE OF CONTENTS - CONT'D.
Il. THIS IS AN INAPPROPRIATE CASE IN
WHICH TO DECIDE WHETHER THE
THIRTEENTH AMENDMENT PROVIDES
A DIRECT REMEDY FOR DAMAGES.......
A. THE PLAINTIFFS CONCEDED AT
TRIAL THAT THEY LACKED A
ty Ge
B. ANY DAMAGE CLAIM RECOVER-
ABLE BY THE PLAINTIFFS WOULD
BE MOOTED BY THE STATE'S CLAIM
OF $240 MILLION FOR CARE AND
TREATMENT, MAKING THIS NOTH-
ING MORE THAN A DISPUTE OVER
op 8 a
C. IF A DIRECT DAMAGE REMEDY
WERE FOUND, THE COURT WOULD
NOT APPLY IT RETROSPECTIVELY
al RS ee
I. THE PLAINTIFFS’ FLSA CLAIM IS
PROCEDURALLY DEFECTIVE,
MAKING IT AN INAPPROPRIATE
VEHICLE FOR A SUBSTANTIVE
DUMPED GOUT BORED WEA. 5. eee ees
Page:
ee
14
18
19
21
TABLES OF CONTENTS - CONT'D.
Page:
IV. THE APPLICABILITY OF THE
CONTRA VENING DECISIONS IN
NATIONAL LEAGUE AND GARCIA
TO A CASE ARISING BETWEEN
1970 AND 1974 IS NOT AN
IMPORTANT FEDERAL QUESTION ........ 24
RE swt. apo es 6 se chy a ene eee ees 27
iv
TABLE OF AUTHORITIES
Cases:
Achinclose v. Palm Beach Florida,
854 F.2d 931 (11th Cir. 1988)............
American Trucking Associations, Inc.
v. Scheiner, 483 U.S. 266, (1987). ..........
American Trucking Associations, Inc. v. Smith,
495 U.S. __, 110 S.C. 2323 (1990) .......
Arahovitis v. State, 466 N.Y.S. 2d 928
(ih GD Re ore ste ee
Atkins v. General Motors Corp., 701 F.2d
ee fe Le Peer eer oe er rr
Bacchus Imports, Ltd. v. Dias,
gS Me. Pea ree ere
Bayh v. Sonnenburg, 573 N.E.2d —
| er eee ee ree
Bester v. Chicago Transit Authority,
676 F.Supp. 833 (N.D.Ill. 1987)...........
Bobilin v. Board of Education, 403
F.Supp. 1095 (D.Hawaii 1975)............
Brennan v. State of Indiana, 517 F.2d
Sere Cs CREE aS oe aes
Pages:
11
17
1,3
26
12
TABLE OF AUTHORITIES - CONT'D
Cases:
Brogan v. San Mateo County, 901 F.2d 762
SUE isn eee od be tees ee eee
Brooks v. Village of Lincolnwood, 620
fo ae Oe eee
Brusstar v. Southeastern Pennsylvania
Transportation Authority, 636 F.Supp.
hog) Bod | ee
Butler v. Perry, 240 U.S. 328 (1916)...........
Buzzelle v. Colorado State Hospital,
i Be Bk Ls ) eee
Chevron Oil Co. v. Huson, 404 U.S.
PCIE 6.05 604505464 64%0% Ne ee
Chicago B & O R. Co. v. Chicago,
Oe Sv Ge CPE 46 ben xa0ka cra eeeuens
City of Taunton v. Talbot, 186 Mass. 341,
oe? i Pere ere rere ee
Civil Rights Cases, 109 U.S. 3 (1883)...........
Clark v. Universal Builders, Inc.,
409 F.Supp. 1274 (N.D. Ill. 1976)...........
Commonwealth v. Pouliet, 292 Mass. 229,
ee ee re ee
vi
4 1]
*s 14
i 16
a 13
TABLE OF AUTHORITIES - CONT'D.
Cases:
Downs v. Dept. of Public Welfare, 368
F.Supp. 454 (E.D. Pa. 1973)..........
Dubline v. New York State Department
of Social Services, 348 F.Supp. 290
het oe Pe Se ees
Ex Parte Lloyd, 13 F.Supp. 1005
Ce ce BOE es os ee eee ee lcn es
First English Evangelical Lutheran
Church of Glendale v. County of
Los Angeles, 482 U.S. 304 (1987)... ..
Garcia v. San Antonio Metropolitan Transit
Authority, 469 U.S. 528 (1985).......
Garcia v. San Antonio Metropolitan Transit
Authority, 838 F.2d 1411 (5th Cir. 1988),
cert. denied 488 U.S. 889 (1988) ......
In Re Peterson, 74 P.2d 60 (Ore. 1937)....
indiana ¥. Uaery, 427 U.S. oe ccc ccceces
RES Caen cea ere es
Jacobs v. United States, 290 U.S. 13,
Pe eT a 8 6k nd we eh exe vin eeeen
James B. Beam Distilling Co. v. Georgia,
Ue ee ee | errr rrr ee
Vu
Pages:
as <a
el ie fe Se ee
oy
“AL te et a
12
13
10
16,17
21,23
24,25
25,26
10
3,23
24,25
16
20
TABLE OF AUTHORITIES - CONT'D.
Cases:
Jobson v. Henne, 355 F.2d 129
DCR casas eae edt one ttn ass
Johnston v. Ciccone, 260 F.Supp. 553
Pee SUS 6 en sk oe eves violas
Joynerr v. City of Macon, 627 F.Supp. 1352
oo a ae ae ee
Kartevold v. Spokane County Fire Protection,
625 F.Supp. 1553 (E.D.Wash. 1986).......
Kennedy v. Meara, 127 Ga. 68,
ee a ee
King .v Carey, 405 F.Supp. 41
of Sk gt. eee area are
Kinney Shoe Corp. v. Vorhes,
gee a0 27 (oem Cir. 1977)... 2s
Kukla v. Village of Antioch,
647 F.Supp. 799 (N.D.Il. 1986)...........
LaChappelle v. Owens-Illinois, Inc.,
313 F.26 206 (Sth Cis. 1975). ............
Lopez v. Sears, Roebuck & Co.,
493 F.Supp. 801 (D. Md. 1980)...........
Marshall County v. Lippincott,
137 Iowa 102, 111 N.W. 801 (1907).......
vul
Pages:
11
12
26
10
1]
22
25
21
16
13
TABLE OF AUTHORITIES - CONT'D.
Cases: Pages:
Maryland v. Wirtz, 392 U.S. 183 (1968) .......... 24
Matter of S.C., 790 S.W. 2d 766
I ri pee eiawtesern evans 11
McBurnay v. Industrial Accident
Commission of California,
220 Cah. 124, 307.26 414 (19354) ..........-.- 13
McKesson v. Division of Alcoholic
Beverages and Tobacco, 495 ................. 17
1s ee eee Eh re 18,19
Mineo v. Port Authority of New York and New
Jersey, 779 F.2d 939 (3rd Cir. 1985).......... 25
National League of Cities v. Usery,
ee I 5d ek cence ses saw euyss 21,24
O’ Connell v. Champion Intern Corp.,
$12 F.dd 393 (Gti Cir. 1967)... ...... 2.2.2... 22
Parks v. Ciccone, 281 F.Supp. 805
I SG vo pene ewee ws so Nes eee key 12
Partlow v. Jewish Orphans’ Home of
Southern California, 645 F.2d 757
ec ene eae ce a 21
Roberts v. Walmart, 736 F.Supp. 1527
Se a nck ga eee 16
TABLE OF AUTHORITIES - CONT'D.
Cases: Pages:
Robertson v. Baldwin, 165 U.S. 275 (1897) ........ 9
Sanders v. AJ. Canfield Co., 635 F.Supp. 85
SN Sb bea ce cwrcewheewnue sees 16
Santiago v. Philadelphia, 435 F.Supp. 136
ee We PN eo bas eae baer cece nes 11
Schmidt v. Fuller Brush Company,
reg eo Red Lee |}. | 21
Slaughter-House Cases, 83 U.S. 36 (1873)........ 16
Souder v. Brennan, 367 F.Supp. 808
Se PUIG acs Foe os cee ee rele 4,23
Stone v. Paducah, 86 S.W. 531
ee PUD soa oes occ ee ee 11
Thurman vy. City of Union City, Tennessee,
628 F.Supp. 146 (W.D.Tenn. 1986)........... 25
Tyler v. Harris, 226 F.Supp. 852
Se TN re i oe Pen wale ea we 12
United States v. King, 840 F.2d 1276 (6th Cir.
1988), cert. denied 488 U.S. 894 (1988) ........ 11
United States v. Kozminski, 487 U.S.
ee rr em et oe 8,9
TABLE OF AUTHORITIES - CONT'D.
Cases: Pages:
Vaivida v. City of Grand Rapids,
264 Mich. 204, 249 N.W. 826 (1933)........... 13
Vietnamese Fishermen's Ass'n v. Knights
of the Ku Klux Klan, 518 F.Supp. 993
8 Ke le a ae er 16
Weidenfeller v. Kidulis, 380 F.Supp. 445
Se EE yok owe dweee eo eiee ev bee duce 12
Westray v. Porthole, Inc., 586 F.Supp. 834
ent eae sy rae ae 16
Woods v. New York Life Insurance Company,
ob ee es re 21
Wyatt v. Stickney, 344 F.Supp. 373
I Pe hc es ose os eres Ske os oes 12
Constitutional Provisions, Statutes, and Rules:
I cna 454s 4 4 8 4b ore peas eee eo 16,17
Ee re ee re 17
TRIO PONE «ooo ccc cccvesesenes passim
FOUSRONEE ATIGIGIROT . ww ccc esse cc esecss 16,17
CE eau riches sees nee peeaes 6,14
ag i, aa. ee ae rere ee 3,21,23
Xl
TABLE OF AUTHORITIES - CONT'D.
Cases: Pages:
NE Io as 5. beh oe vee ran els waa 22
RCI a aah as SN oo ee Secale eee 22
29 USC. ‘ DG ak ere ye euien nace CeeeuN 23
Sr UE ok ne ce es hs ewan Reba eaeaten 11,14
TIE dec cea a yeni cwe cw pemeenes 1]
rs oo sacs so ae ie bake pba eee eens 19
PORT acus sa cin ee oie mea eee 19
By PIS ok Son von ey ac uner eke seanwe 2,6,18
Other Authorities:
Behavior Today, Ziff-Davis Publishing
Company, Inc., One Park Avenue,
New York, New York 10016............... 3
Hospitalization of Mentally Ill Criminals
in Pennsylvania and New Jersey,
110 U.Pa.L.Rev. 78, 89 (1961) ................ 5
No. 91-975
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1991
LEO J. SONNENBURG, GERALD HARNETT
and DENNIS SHEFFIELD,
Petitioners,
we
EVAN BAYH, Govemor of the State of Indiana
and JERRY THADEN, Commissioner of the
Indiana Department of Mental Health,
Respondents.
BRIEF IN OPPOSITION TO PETITION
FOR WRIT OF CERTIORARI TO
THE INDIANA SUPREME COURT
Respondents, Evan Bayh, Governor of the State of Indi-
ana, and Jerry Thaden, Acting Commissioner of the Indiana
Department of Mental Health, respectfully pray this Court
deny issuance of a writ of certiorari to review the decision of
the Indiana Supreme Court entered June 12, 1991 in Bayh v.
Sonnenburg, 573 N.E.2d 398 (Ind. 1991).
|
STATUTORY PROVISIONS INVOLVED
The Thirteenth Amendmentto the Constitution is correctly
set out in the Petition (Pet. p. 1). In addition to the portions of
the Fair Labor Standards Act (FLSA) contained in Appendix
F to the Petition, other portions are also applicable and are set
out in Appendix A to this Brief in Opposition. Included in
Appendix B to this Brief in Opposition is the portion of Ind.
Code § 16-14-18.1-3 which charges mental patients and their
estates for the cost of care and treatment.
STATEMENT OF THE CASE
The theory inherent in the Plaintiffs’ case is that Dr. Otis
Bowen, Governor of Indiana during much of the period
covered by this lawsuit and, by implication, all of his predeces-
sors, enslaved Indiana’s state mental patients by permitting
them to be given industrial therapy assignments. This bizarre
theory is unsupported by either the law or the facts.
This action was brought by a class of present and former
Indiana mental patients seeking payment of the federal mini-
mum hourly wage for work done in industrial therapy assign-
ments given them at Indiana state mental hospitals between
May 23, 1970 and December 31, 1974. The original complaint
was filed May 23, 1974 (Tr. 36)', and sought relief under a
variety of theories, including the FLSA. An intervening
amended complaint was filed in August 1977 abandoning the
FLSA claim (Tr. 57). In April 1985 Plaintiffs sought to amend
the complaint yet again to attempt to revive the FLSA claim
(Tr. 103). Amendment was permitted by the tral court on
' All record cites are to the state court record and are noted
as “Tr. as
December 2, 1985 (Tr. 154).? At no point in this proceeding
did Plaintiffs timely file individual consents to proceed as
required Ly the FLSA. See 29 U.S.C. § 216 (Opposition
Appendix A).
Independently, the Secretary of Labor brought suit seeking
to have the 1966 amendments to the FLSA made applicable to
Indiana mental hospital employees during this period. While
he prevailed in the Seventh Circuit, Brennan v. Indiana, 517
F.2d 1179 (7th Cir. 1975), he lost in this Court. Jndiana v.
Usery, 427 U.S. 909 (1976). On remand, the Secretary’s case
was dismissed with prejudice (Tr. 1815C, 1815D).
This matter came to trial in 1987. While there is a serious
dispute between the parties regarding the evidence, the histori-
cal basis of the program is unchallenged. Mental patient
industrial therapy assignments were routine in Indiana and
other states during this period. In fact, the unrefuted testimony
established that some twenty-nine (29) states had uncompen-
sated patient work programs during the early 1970's (Tr. 2348-
9 and 2368).’ An additional eight (8) states had only a token
2 The complete procedural history is documented in the
decision the petition challenges. Bayh v. Sonnenburg, 573
N.E.2d 398 (Ind. 1991) (A2-4). Appendix citations, unless
otherwise noted, are to the Petitioners’ Appendix and are
marked as “A _“.
> The professional literature of the day supports this
widespread use by most states of nonpay programs. See
Behavior Today, Ziff-Davis Publishing Company, Inc., One
Park Avenue, New York, New York 10016, December 16,
1974 (pp. 331-332), December 23, 1974 (pp. 337-339), De-
cember 30, 1974 (pp. 345-346), January 6, 1975 (pp. 351-
353), and January 20, 1975 (pp. 364-366).
3
compensation program (Tr. 2349). At least thirty-seven (37)
states, therefore, did not provide what Plaintiffs seek here:
payment of the federal minimum wage. The impetus behind
collecting these statistics at the time was the presumed binding
effect of a district court ruling that the FLSA applied to mental
patient therapy assignments nationwide. Souder v. Brennan,
367 F.Supp. 808 (D.D.C. 1973).
Plaintiffs’ evidence consisted of testimony from eleven
former mental patients (A31). Plaintiffs tried to use this
confused testimony to generalize the experience of over 7400
class members. None, as noted by the Indiana Supreme Court,
was ever punished for refusal to work (A31-32). This
was confirmed by all state professional staff who testified.
Even the charitable reading given the Plaintiffs’ evidence
by the Indiana Supreme Court did not establish that patients
were given or threatened with electro-shock for refusing
assignments (A21, 31-32). In fact, as the Indiana Supreme
Court noted, there was “no evidence that any patients were
actually punished in those ways for refusing work” (A32,
emphasis in original). The Indiana Supreme Court noted only
that “[cJonsidering the impaired mental state of the plaintiffs,”
persistent rumors could have been given credence (A32).
The industrial therapy assignment system during this pe-
niod was in a state of change. In Indiana, the system originated
at least as far back as the 1816 Constitution (A26). Mental
patient labor was actually used to build and finance state
hospitals in the last century and the beginning of this century
(A26-28), a history not unlike that of other states. Changing
theory and the advent of deinstitutionalization in the 1950's
and 1960's (Tr. 2346-7, 2361-5, 1827-1829 and 1869) brought
substantial modifications to the program. Dr. William Mur-
ray, Commissioner of the Indiana Department of Mental
Health during this period, and Chairman of the Committee of
4
the Joint Commission for Accreditation of Hospitals that
developed the 1981 national consolidated standards for hospi-
tals, indicated that work assignments had a therapeutic effect,
a position supported by professional opinion of the day (Tr.
1827). It also provided exercise, relieved psychosis, and
provided a sense of accomplishment (Tr. p. 1829, 1974).* In
fact, state institutions experienced fights and general unrest
along with increased medication and lengthy patient stays
when the program was terminated (Tr. 2375, 1981).
By the early 1970’s, patient labor was insignificant to the
operation of the institutions (Tr. 2432); in fact, much of the
effort was a make-work exercise because patients were not
very productive (Tr. 2155) and there were more patients than
assignments (Tr. 2300). The poor quality of patient work was
confirmed by hospital staff who generally noted thar light,
non-dangerous duty was given (Tr. 1509, 1485, 1284) and
much supervision was required due to low functioning patients
(Thompson Dep. p. 9 and 10° and Tr. 2154-5). Consequently,
the thrust of the program was work therapy as opposed to
maintenance of the facility.
The evidence from all professional staff was clear that no
one was punished for failure to participate (Tr. 2027, 2077,
2099, 2109, 2110, 2138, 2257, 2299). Assignments were
* Occasional law review articles described such programs
and their benefit in other states. The New Jersey system is a
good example. Note, Hospitalization of Mentally Ill Criminals
in Pennsylvania and New Jersey, 110 U.Pa.L.Rev. 78, 89
(1961).
> The deposition quoted here is part of the record but was
not paginated. It is part of the supplemental record.
5
developed to increase the job skills of the generally low
functioning patient population left by deinstitutionalization
and provide the kinds of experiences necessary to make the
patient employable in the job market (Tr. 1976, 1978, 1983,
1984, 2029, 2036, 2132, 2265, 2300, 2304, 2309). Assign-
ments, if appropriate to the patient’s condition, were made by
a treatment team composed of professionals at the institutions
(Tr. 2020, 2058, 2132, 2254-5, 2296, 2297).
After a one year paid phase-out program ended and no
assignments were made, a new paid program was instituted in
1977 based on a sliding hourly rate down from the minimum
wage and gauged to the productivity of the patients and the
sheltered workshop scale of the FLSA (Tr. 1977, 2374). 29
U.S.C. § 214(c) (Opp. App. A).
During trial, the State offered evidence of nearly $240
million in outstanding bills for services rendered to the plain-
tiff class members which was rejected by the trial court (Tr.
2210-13, 2221, 2228). On direct appeal, the Indiana Supreme
Court reversed that holding, thereby admitting this evidence
(A37). As noted by the Indiana Supreme Court, this calcula-
tion was based on long-standing Indiana statutes which author-
ize charging mental patients a set fee for their “maintenance,
care and treatment,” quoting 1971 Ind. Acts Public Law 474,
§ 4(d) and Ind. Code § 16-14-18.1-3 (A37-38, fn. 27).
The trial court awarded Plaintiffs $27,954,852 in damages
(half was obtained by multiplying hours worked or an invented
average of hours worked by $1.60; the other half was prejudg-
ment interest) (A65) on six theories. From this amount,
Plaintiffs’ counsel was awarded $5,500,000 with permission
to bill an additional 10,000 hours at $250 per hour for a total
potential fee recovery of $8,000,000 (Tr. 1064 and A70-71).°
The Indiana Supreme Court did not reach the issue of fees,
having decided that no claim was established by Plaintiffs on
any of their six separate theores (A38).
On consideration of Plaintiffs’ petition for rehearing, the
Indiana Supreme Court noted that the Thirteenth Amendment,
which had occupied only five pages of Plaintiffs’ argument
during briefing, had become for the first time the central focus
of the litigation (A93).’ The Indiana Supreme Court affirmed
its decision on the Thirteenth Amendment issue, and noted in
passing that the thousands of voluntarily admitted patients
involved in the case could not logically have been subjected to
involuntary servitude (A93).
The Petition is directed solely to the Thirteenth Amend-
ment and FLSA analysis of the Indiana Supreme Court. The
Petition waives any claimed error in the other four unsuccess-
ful state law theories. (Pet. p. 5 fn. 7).
* The Plaintiffs’ Appendix omits the portion of the final
judgment which awarded Plaintiffs’ counsel a base fee of
$5,500,000.
’ The focus of this aged case has shifted periodically:
originally the focus was the FLSA; after 1977 it became a state
statutory claim (A73); and at opening statement in tmial it
became the Indiana Constitution (A51-52).
7
REASONS FOR DENIAL OF THE WRIT
L.
AS THE THIRTEENTH AMENDMENT
DOES NOT PROHIBIT THE ASSIGNMENT
OF MENTAL PATIENTS TO INDUSTRIAL
THERAPY, A GRANT OF CERTIORARI WOULD —
NOT RESOLVE A SUBSTANTIAL FEDERAL
QUESTION ON THE FACTS OF THIS CASE.
A.
THIS COURT REAFFIRMED THE
SCOPE OF COMMON LAW EXCEPTIONS TO
THIRTEENTH AMENDMENT APPLICATION IN
UNITED STATES v. KOZMINSKI, 487 U.S. 931
(1988), AND THIS CASE MERELY PRESENTS
APPLICATION OF THE EXCEPTIONS
TO UNIQUE AND NON-RECURRING FACTS.
The core of both Thirteenth Amendment issues framed by
Plaintiffs is whether a damage award against a state govern-
ment is available for an historically-based national practice of
using mental patients in uncompensated industrial therapy
assignments. For the reasons stated herein, it is not.
As found by the Indiana Supreme Court, the industrial
therapy assignments at issue here come well within the recog-
nized exceptions to the Thirteenth Amendment slavery bar
established by this Court (A19-20).
The most recent Thirteenth Amendment case from this
Court confirms that the amendment does not reach labor
performed as part of a civic duty or in “‘exceptional’ cases well
established in the common law at the time of the Thirteenth
8
Amendment.” United States v. Kozminski, 487 U.S. 931,944
(1988). Justice O’Connor, writing for the Court, cited Robertson
v. Baldwin, 165 U.S. 275 (1897).® In Robertson, the Court
Stated:
It is clear, however, that the [thirteenth] amend-
ment was not intended to introduce any novel doctrine
with respect to certain descriptions of service which
have always been treated as exceptional; such as mili-
tary and naval enlistments, or to disturb the right of
parents and guardians to the custody of their minor
children or wards. The amendment, however, makes
no distinction between a public and a private service.
To say that persons engaged in a public service are not
within the amendment is to admit that there are excep-
tions to its general language, and the further question is
at once presented, where shall the line be drawn? We
know of no better answer to make than to say that
services which have from time immemorial been treated
as
exceptional shall not be regarded as within its
purview.
Robertson, 165 U.S. at 282.
In Butler v. Perry, 240 U.S. 328 (1916), also cited in
Kozminski, the Court stated:
[T]he Thirteenth Amendment declares that neither
slavery nor involuntary servitude shall exist. This
amendment was adopted with reference to conditions
Kozminski also determined, it is worth noting, that
“psychological coercion” is insufficient to establish slavery.
Kozminski, 487 S.Ct. at 952.
9
existing since the foundation of our Government, and
the term involuntary servitude was intended to cover
those forms of compulsory labor akin to African slav-
ery which in practical operation would tend to produce
like undesirable results. It introduced no novel doc-
trine with respect of services always treated as excep-
tional, and certainly was not intended to interdict
enforcement of those duties which individuals owe to
the State, such as services in the army, militia, on the
jury, etc. The great purpose in view was liberty under
the protection of effective government, not the destruc-
tion of the latter by depriving it of essential powers.
240 U.S. at 332-33.
Consistent reaffirmation of a common law test for the
Thirteenth Amendment can leave little doubt that industrial
therapy for mental patients is excluded. As the Indiana
Supreme Court noted (A20 fn. 20), the Indiana constitutional
provision which was the centerpiece of the Plaintiffs’ case
below and the Thirteenth Amendment share a common heri-
tage. In short, what began in 1816 with uncompensated mental
patient labor actually constructing and operating mental asy-
lums and farms (A26-28) cannot fairly be stated to lack an
historical common law basis.
While a few courts have addressed the issue of mental
patients and the Thirteenth Amendment directly, see, e.g.,
Kennedy v. Meara, 127 Ga. 68, 56 S.E. 243 at 247 (1907), and
Ex parte Lloyd, 13 F.Supp. 1005 (E.D. Ky. 1936); some have
noted the practical existence of such programs in relation to the
statutory bills patients accrued. See, e.g., Jn re Peterson, 74
P.2d 60 at 62 (Ore. 1937). Plaintiffs’ lengthy foomote claim
10
to wide applicability is unsupportable (Petition, p. 9, fn. 10).°
It is worth noting that the trend that arose nationally in the late
® Plaintiffs have pulled snippits of dicta from a wide range
of cases; some lower court denials of dismissal or summary
judgments; some criminal appeals or habeas reviews, among
others. Few even concern state mental patients. Jobson v.
Henne, 355 F.2d 129 at 132 (2nd Cir. 1966)(no consideration
of a direct cause of action under the Thirteenth Amendment;
damages possible against specific institution officials under 42
U.S.C. § 1983 as a remedial vehicle for assignments “devoid
of therapeutic purpose”); Arahovitis v. State, 466 N.Y.S. 2d
928 (Ct. Claims 1983)(state court awards a patient barber back
wages in a case that makes no mention of the Thirteenth
Amendment or any provision of the Constitution); Buzzelle v.
Colorado State Hospital, 491 P.2d 1369 (Colo. 1971)(patient
billing case rejecting the patient’s claim for set-off for thera-
peutic work performed; no consideration of whether a damage
action exists at all); Matter of S.C., 790 S.W. 2d 766 (Ct. App.
Tex 1990)(held only that juvenile offenders were being pun-
ished for “crimes” and were outside the Thirteenth Amend-
ment; no discussion of a damage action under any provision);
Stone v. Paducah, 86 S.W. 531, 533 (Ct. App. Ky. 1905 )(held
that local ordinance requiring work could apply to convicts,
but not to “idiots, insane persons or inebriates;” no discussion
of a damage remedy); United States v. King, 840 F.2d 1276
(6th Cir. 1988), cert. denied 488 U.S. 894 (1988) (criminal
action based on implementing statute; does not mention the
Thirteenth Amendment); Santiago v. Philadelphia, 435 F.Supp.
136, 157 (E.D. Pa. 1977) finding a possible damage action for
youth center inmates based on 42 U.S.C. § 1994 which was
“intended to implement the thirteenth amendment”); King v.
Carey, 405 F.Supp. 41 (W.D. N.Y. 1975)(the court assumed at
the motion to dismiss stage the existence of a damage action
11
1960’s and early 1970's to question the remnants of this
system, and, in fact, inspired this lawsuit (A2 fn. 1), was not
based on a supposed violation of the Thirteenth Amendment,
but instead on concer about the FESA and Congress’ first
efforts to extend its coverage to state employment in 1966,
discussed later in this Bnef.
footnote 9 (cont.)
under § 1983 for a possible violation of the Thirteenth Amend-
ment); Bobilin v. Board of Education, 403 F.Supp. 1095, 1100
(D.Hawaii 1975) (student cafeteria assignments were not
involuntary servitude); Weidenfeller v. Kidulis, 380 F.Supp.
445, 450 fn. 7 (E.D. Wis. 1974) (on motion to dismiss court
assumed a possible damage remedy under §1983 as imple-
menting the Thirteenth Amendment); Downs v. Dept. of Public
Welfare, 368 F.Supp. 454 (E.D. Pa. 1973)(at motion to dismiss
stage, court found that damages against involved state officers
existed, but not against state entity under § 1983); Wyazrt v.
Stickney, 344 F.Supp. 373 (M.D. Ala. 1972)(an injunction in
a “conditions suit” which did not mention the Thirteenth
Amendment or a damage action); Parks v. Ciccone, 281
F.Supp. 805 (W.D. Mo. 1968)(federal habeas corpus action
which mentions neither the Thirteenth Amendment nor mental
patients); Johnston v. Ciccone, 260 F.Supp. 553 (W.D. Mo.
1966)(habeas corpus relief was available for Thirteenth
Amendment violation; no consideration of a damage action);
and Tyler v. Harris, 226 F.Supp. 852 (W.D. Mo. 1964) (same
as Johnston).
Selected dicta does not establish either a Thirteenth Amend-
ment bar to patient assignment to industrial therapy, or the
availability of damages under the amendment. Neither do
these cases indicate that there is any raging controversy or
“split” among these courts as to the Thirteenth Amendment’s
applicability to mental patients. |
12
It is also worth noting that patients involved in the assign-
ments during this period, while not compensated in money,
were, as noted by the Indiana Supreme Court and the unani-
mous view of state professionals who testified, provided
valuable psychological benefits and employment training (A30).
A ruling that the Thirteenth Amendment requires payment for
program participation would raise serious constitutional ques-
tions nationwide for public (and private) programs such as
workfare and “token” economies developed for welfare recipi-
ents and the handicapped.” Neither the law nor the facts support
a finding that the Thirteenth Amendment was violated in this
case.
B.
THE PRACTICE OF UNCOMPENSATED
THERAPEUTIC PATIENT LABOR,
WHILE COMMON AT THE
TIME, WAS DISCONTINUED IN 1974.
It is undisputed that at least 29 states had unpaid programs
in the early 1970’s. While old statutes in Indiana required the
use of patient labor to construct and operate hospitals and
'© Work in return for a benefit conferred by taxpayers to
indigents is on firm historical ground. See City of Taunton v.
Talbot, 186 Mass. 341, 71 N.E. 785 (1904); Marshall County
v. Lippincott, 137 Iowa 102, 111 N.W. 801 (1907); McBurnay
v. Industrial Accident Commission of California, 220 Cal. 124,
30 P.2d 414 (1934); Vaivida v. City of Grand Rapids, 264
Mich. 204, 249 N.W. 826 (1933); Commonwealth v. Pouliet,
292 Mass. 229, 198 N.E. 256 (1935); Dubline v. New York
State Department of Social Services, 348 F.Supp. 290 (W.D.
N.Y. 1972); Brogan v. San Mateo County, 901 F.2d 762 (%h
Cir. 1990).
13
farms in the early years (A26-27), the program which Plain-
tiffs wish to challenge ceased to exist in December 1974. With
the advent of the sheltered workshop program of the FLSA, 29
U.S.C. § 214(c)(Opposition Appendix A) and its adoption in
Indiana in 1977, resolution of this case would be an academic
exercise on historical facts with no wider legal significance.
I.
THIS IS AN INAPPROPRIATE
CASE IN WHICH TO DECIDE
WHETHER THE THIRTEENTH AMENDMENT
PROVIDES A DIRECT REMEDY FOR DAMAGES.
A.
THE PLAINTIFFS CONCEDED AT TRIAL
THAT THEY LACKED A DIRECT REMEDY.
At trial Plaintiffs conceded that the remedial vehicle for
their Thirteenth Amendment claim was 42 U.S.C. § 1983
(A18, Tr. 2514). Their concession was correct, for in the Civil
Rights Cases, 109 U.S. 3 (1883), this Court noted that while the
Amendment abolished slavery, a remedial vehicle was neces-
Sary to provide relief:
This Amendment, as well as the 14th, is undoubt-
edly self-executing without any ancillary legislation,
so far as its terms are applicable to any existing state of
circumstances. By its own unaided force and effect, it
abolished slavery and established universal freedom.
Still Jegislati _
all the various cases and circumstances to be affected
nay , ; len of ad low i
violation in letter or spirit. And such legislation may be
primary and direct in its character, for the Amendment
14
is not a mere prohibition of state laws establishing or
upholding slavery, but an absolute declaration that
slavery or involuntary servitude shall not exist in any
part of the United States.
It is true, that slavery cannot exist without law, any
more than property in lands and goods can exist with-
out law; and, therefore, the 13th Amendment may be
regarded as nullifying all state laws which establish or
uphold slavery. But it has a reflex character also, estab-
lishing and decreeing universal civil and political free-
dom through the United States; and it is assumed that
the power vested in Congress to enforce the article by
and upon this assumption it is claimed that this is
sufficient authority for declaring by law that all per-
sons shall have equal accommodations and privileges
in all inns, public conveyances and places of public
amusement; the argument being, that the denial of such
equal accommodations and privileges is, in itself, a
subjection to a species of servitude within the meaning
of the Amendment. Conceding the major propositions
to be true, that Congress has a right to enact all
necessary and proper laws for the obliteration and
ra vi ' : ala
is the minor proposition also true, that the denial to any
person of admission to accommodations and privileges
of an inn, a public conveyance or a theater, does
subject that person to any form of servitude, or tend to
fasten upon him any badge of slavery?
(emphasis added)
109 U.S. at 20.
Similarly, the Slaughter-House Cases, 83 U.S. 36, 69, 71-
72 (1873) held that peonage was abolished with no indication
that a damage remedy, if any, was available. An impressive
number of lower courts have determined, or strongly sug-
gested, that no direct cause of action is created by the Thir-
teenth Amendment.”
This Court’s recent cases do not change this result. In First
English Evangelical Lutheran Church of Glendale v. County
of Los Angeles, 482 U.S. 304 (1987), this Court simply ex-
tended longstanding Fourteenth Amendment and Fifth Amend-
ment law to a total but temporary taking of real property by a
municipality through regulation. The Court traced the sources
of this direct cause of action back to 1933, 482 U.S., at 315,
citing Jacobs v. United States, 290 U.S. 13, 54S.Ct. 26 (1933),
"! Clark v. Universal Builders, Inc., 409 F.Supp. 1274,
1279 (N.D. Ill. 1976) (dismissing claim based directly on
thirteenth amendment in action against seller of homes who
had allegedly discriminated against black purchasers), Sand-
ers v. AJ. Canfield Co., 635 F.Supp. 85, 87 (N.D. Ill. 1986)
(dismissing plaintiff's employment discrimination claim based
directly on the Thirteenth Amendment); Westray v. Porthole,
Inc., 586 F.Supp. 834, 838-39 (D. Md. 1984) (dismissing
claim based directly on Thirteenth Amendment in suit against
a nightclub for refuse to admit black patrons); Vietnamese
Fishermen's Ass’ nv. Knights of the Ku Klux Klan, 518 F.Supp.
993,1012(S.D. Tex. 1981) (suggesting the Thirteenth Amend-
ment does not create direct case of action); Lopez v. Sears,
Roebuck & Co., 493 F.Supp. 801, 806-07 (D. Md. 1980)
(dismissing employment discrimination claim based directly
on Thirteenth Amendment); Roberts v. Walmart, 736 F.Supp.
1527 (E.D. Mo. 1990) (no private cause of action created by
the Thirteenth Amendment).
16
and noted that the Fifth Amendment was made applicable to
the states through the Fourteenth Amendment in 1897, First
English, 482 U.S. at 310 fn. 4, citing Chicago B & OR. Co. vy.
Chicago, 166 U.S. 226 (1897). A long and continuous history
of requiring damages for land condemnation, both direct and
inverse, based upon a constitutional provision explicitly re-
quiring “just compensation”, does not support a novel creation
of such a claim for the Thirteenth Amendment or, more
importantly, its application for the first time here.!*
The same can clearly be said of Plaintiffs’ flawed analogy
to McKesson v. Division of Alcoholic Beverages and Tobacco,
495 U.S.__, 110 S.Ct. 2238 (1990). In McKesson, this Court
found that a lengthy history of tax cases indicated that the
Eleventh Amendment did not bar some form of a refund
mechanism required by the Due Process Clause of the Four-
teenth Amendment for taxpayers who were given no opportu-
nity to challenge payment of a tax imposed in violation of the
Commerce Clause. A careful reading of the decision shows
very Clearly that the key to the outcome was the Florida court’s
failure to permit any refund or any form of relief to complain-
ing taxpayers challenging the constitutionality of a tax mecha-
nism essentially identical to the scheme invalidated in Bacchus
Imports, Ltd. v. Dias, 468 U.S. 263 (1984). In fact, the real-
ity that Bacchus controlled the issue made the Florida court’s
generalized ruling that “equitable considerations” prohibited
'? While a property owner receives nothing if he is not paid
for either a permanent or a temporary taking, the Indiana
Supreme Court noted that Plaintiffs received value from the
work experience (A30). In fact, progressing from low skilled
positions to high skilled positions enabled chronic patients to
obtain real employment in the community (A30). The pro-
gram denied the patients nothing; it provided value.
17
retrospective application due to “good faith reliance on a pre-
sumptively valid statute” transparently thin. McKesson, 110
S.Ct. at 2254-5. The fact that Florida stayed application of its
ruling of unconstitutionality on appeal, thereby permitting
collection of a tax this Court determined to be in violation of
the Commerce Clause years earlier, 110 S.Ct. at 2244 fn. 5,
came very close to being a direct challenge to this Court’s
power to make its constitutional precedents binding."
Neither case even hints at establishment of a direct damage
action under the Thirteenth Amendment.
B.
ANY DAMAGE CLAIM RECOVER-
ABLE BY THE PLAINTIFFS WOULD
BE MOOTED BY THE STATE’S
CLAIM OF $240 MILLION FOR
CARE AND TREATMENT, MAKING
THIS NOTHING MORE THAN A
DISPUTE OVER ATTORNEY FEES.
Indiana has provided that mental patients with financial
resources are to pay a fixed cost of their care and treatment.
Ind. Code 16-14-18.1-3 (Opposition Appendix B). A version
of this statute has been in effect since at least 1917. Acts of
1917, Chapter 72.
'S It is worth noting that despite Florida's challenge to this
Court’s decisions, the result was not a command to provide a
refund, but a direction to provide some form of relief to those
who timely challenged the tax, /d. at 2258, and suggestions as
to how to avoid due process concerns in the future, Jd. at 2257.
18
With admission of evidence showing outstanding claims
against Plaintiffs of nearly $240 million for services, granting
of certiorari and finding a private cause of action for damages
will provide these Plaintiffs with nothing but a Pyrthic victory.
In addition to a few who might recover something, the only real
Party in interest is counsel who will seek to obtain a portion of
the damage recovery as attomeys’ fees before it disappears.
The question of whether counsel can obtain attorneys’ fees
from tax revenue as it moves from one state pocket to another
by set-off or escheat clearly lacks a cognizable practical reason
or a timely intellectual foundation to grant certiorari on the
underlying substantive legal issue. Plaintiffs have not sought
certiorari on any attorney fees issue, but a result favorable to
them on their Thirteenth Amendment claim will, as a practical
matter, reduce this case to an attomeys’ fee dispute.
‘.
IF A DIRECT DAMAGE REMEDY WERE
FOUND, THE COURT WOULD NOT APPLY
IT RETROSPECTIVELY TO THIS CASE.
The companion case decided the same day as McKesson,
American Trucking Associations, Inc. v. Smith, 495 U.S. __.,
110 S.Ct. 2323 (1990), shows very clearly why acceptance of
'* In addition, a large number of the Plaintiffs are deceased
or have disappeared. Those still living who receive any
recovery which boosts their assets over $1500 ($2250 if
married) would become Medicaid ineligible and either be
discharged from their private placements until a “spend-
down” occurs, or would have the recovery applied to the bill
until eligibility was regained. 470 LAC 9.1-3-17 or 405 LAC 2-
3-15.
19
Plaintiffs’ invitation to create an original damage action against
a state government will be of no avail to them. In Smith, this
Court reaffirmed the test for nonretrospective application of
case holdings announced in Chevron Oil Co. v. Huson, 404
U.S. 97 (1971), and concluded that an earlier decision holding
that flat highway use taxes were unconstitutional, American
Trucking Assns.,Inc. v. Scheiner ,483 U.S. 266 (1987), met the
three elements of the test for prospective application only and
applied from the date of the earlier decision. '°
In short, a decision creating a damage action against state
government directly under the Thirteenth Amendment for
allegedly “enslaving” some mental patients through industrial
therapy assignments between 1970 and 1974 (1) would un-
questionably be a new principle of law; (2) applying it retro-
spectively would not meaningfully further future adherence to
freedom; and (3) applying such a principle retrospectively
would be inequitable and produce a tremendous impact on the
state treasury. This case would meet the Chevron factors - just
as the Commerce Clause action did in Smith - and reduce the
value of any decision by this Court to an academic exercise on
an issue of no general significance.
'S This Court’s decision in James B. Beam Distilling Co.
v. Georgia, U.S., 111 S.Ct. 2439 (1991), does not change the
result. The admittedly narrow holding of James Beam says
simply that once this Court applies a decision to one set of
litigants, it must apply them to all. 111 S.Ct. at 2448. As this
Court has never found a private cause of action for damages
against a state for allegedly enslaving its citizenry, there is no
binding precedent to apply here. Also Beam notes that this
Court has used Chevron to deny application of the decision to
the litigants who establish the new principle. Beam at 2443-4.
20
iil.
THE PLAINTIFFS’ FLSA CLAIM IS
PROCEDURALLY DEFECTIVE, MAKING
IT AN INAPPROPRIATE VEHICLE FOR
A SUBSTANTIVE RULING ON THE FLSA.
Plaintiffs rush to challenge the Indiana Supreme Court's
application of retrospective/prospective rules naturally arising
in this Court’s reversals on FLSA application to core govern-
mental state employment. See National League of Cities v.
Usery, 426 U.S. 833 (1976), and Garcia v. San Antonio
Metropolitan Transit Authority, 469 U.S. 528 (1985). Plain- -
tiffs cannot reach that question on the record in this case; their
unexplained failure to abide by procedural requirements of the
FLSA violates the very statute they seek to invoke, and
prohibits consideration of any FLSA issue. The Indiana
Supreme Court considered these issues as “Other Problems
with the Claim” (A14-15).
The first problem, and the one which completely disposes
of the FLSA claim, is that there are no plaintiffs in the case to
mount the challenge. The FLSA specifically requires that each
plaintiff desiring to file an FLSA damage action, or be a part
of any pending action, file a written consent with the court. 29
U.S.C. § 216(b). In a remarkably consistent pattern, every
court to consider this issue has determined that the statute
means precisely what it says: each litigant must file a written
consent. '®
'© See LaChappelle v. Owens-Illinois, Inc., 513 F.2d 286
(Sth Cir. 1975); Woods v. New York Life Insurance Company,
686 F.2d 578 (7th Cir. 1982); Schmidt v. Fuller Brush Com-
pany, 527 F.2d 532 (8th Cir. 1975); and Partlow v. Jewish
Orphans’ Home of Southern California, 645 F.2d 757 (9th Cir.
1981).
21
Plaintiffs, who first raised an FLSA claim in the original
1974 complaint (R. 36), filed no consents. They filed none
prior to their abandonment of the FLSA in 1977. Plaintiffs’
revived FLSA claim in 1985 similarly was unaccompanied by
any consents.
Plaintiffs have not to this day filed timely personal written
consents to bring an FLSA action, and are, therefore, barred
from litigating here or anywhere an FLSA claim regarding
employment between 1970 and 1975 for any plaintiff. The
Indiana Supreme Court was incorrect in claiming that the
named plaintiffs had filed timely consents; not one has filed."”
A single individual consent filed in October, 1986, (Tr. 408)
preserves no claim regarding employment between 1970 and
December of 1974. As noted by the Indiana Supreme Court,
29 U.S.C. § 256(b)(Opposition Appendix A) indicates that an
FLSA claim is deemed to commence for an individual when
that individual’s consent is filed. As the FLSA permits only
either a two or three year statute of limitation, 29 U.S.C. § 255
(A15), there can be no plaintiffs.'* (Opposition Appendix A).
7 Plaintiffs curiously refer to the Indiana Supreme Court's
decision acknowledging universal interpretation of federal
statutory law regarding FLSA consent as “dicta” (Petition, p.
26 fn. 30). It is not; it is, in fact, dispositive of Plaintiffs’ entire
FLSA claim. ip
'8 This conclusion is also universally reached by all courts
to consider the issue. Atkins v. General Motors Corp., 701
F.2d 1124 (Sth Cir. 1983); O’Connell v. Champion Intern
Corp., 812 F.2d 393 (8th Cir. 1987); Kinney Shoe Corp. v.
Vorhes, 564 F.2d 259 (9th Cir. 1977).
22
In short. no individual claimant attempting to file a consent
in October 1986 can raise an FLSA claim last occurring
December 31, 1974.
There are a number of other flaws which prohibit Plaintiffs
from raising an FLSA claim. Two were noted by the Indiana
Supreme Court (A14-5). First, Congress meant the 1966
FLSA amendments to apply only to regular employees of state
hospitals and, second, 29 U.S.C. § 259 immunized an em-
ployer from damages for reliance on Department of Labor
guidelines. See DOL Release G-874, Appendix B to the
decision in Souder v. Brennan, 367 F.Supp. 808 at 816 (D.D.C.
1973)."°
In addition, in 1971 the Secretary of Labor, pursuant to 29
U.S.C. § 216(c), sought payment of FLSA wages to employ-
ees of Indiana state mental hospitals. While the Secretary won
in the Seventh Circuit, Brennan v. State of Indiana, 517 F.2d
1179 (7th Cir. 1975), he lost here. Indiana v. Usery, 427 U.S.
909 (1976). The actions were dismissed with prejudice (Tr.
1815C, 1815D). If Plaintiffs claim (as they must) that mental
'9 Indiana would also note that if Souder is treated as a
nationwide binding class action, then the one year grace period
for patient labor coverage is also binding. In fact, the begin-
ning of the paid phase-out program instituted in Indiana
precisely matches the end of the presumed grace period set in
Souder. Indiana sought to comply with the law, not violate it.
Souder, 367 F.Supp. at 810.
* This case declared the 1966 FLSA amendments to be
unconstitutional. The period covered in the case at bar is May
23, 1970 to December 31, 1974. The 1974 FLSA amendments
voided by National League and “revived” by Garcia applied
only from May 1, 1974 forward.
23
patients are “employees” under the FLSA, then they are
estopped by the failed efforts of the Indiana hospital employ-
ees in Indiana v. Usery.
If not, as noted by the Indiana Supreme Court (A13), the
bizarre result would be that patients were covered by the FLSA
during the period while the regular staff was not.
IV.
THE APPLICABILITY OF THE
CONTRAVENING DECISIONS IN
NATIONAL LEAGUE AND GARCIA TO A
CASE ARISING BETWEEN 1970 AND 1974 IS
NOT AN IMPORTANT FEDERAL QUESTION.
This Court applied the 1966 FLSA amendments to state
hospital employees in Maryland v. Wirtz, 392 U.S. 183 (1968),
reversed its position in 1976 and denied application of the
1974 FLSA amendments in National League of Cities v.
Usery, 426 U.S. 833 (1976), and reversed itself again to
uphold the 1974 FLSA amendments in Garcia v. San Antonio
Metropolitan Transit Authority, 469 U.S. 528 (1985). The
Indiana Supreme Court, using the test established in Chevron
Oil Company v. Huson, 404 U.S. 97 (1971), and noting that the
normal rule applies case law retrospectively, denied retrospec-
tive application of Garcia and applied National League retro-
spectively (A11-14).?) Plaintiffs suggest that applying the rule
of National League to labor now covered by the FLSA
2! The Indiana Supreme Court found the following facts to
meet the three part Chevron test for prospective application of
Garcia: (1) Indiana did not engage in the useless act of ob-
taining a declaratory judgment finding the FLSA inapplicable
after National League (a case in which Indiana was a named
party), relying on National League as foreclosing liability in
a
pursuant to Garcia is inappropniate. Actually, to apply any
other result to the shifting sands underlying FLSA application
to state employment is inappropriate and highly prejudicial to
state employers and public taxpayers.
Perhaps the most compelling evidence supporting this
result is that this Court itself applied National! League retro-
spectively to the State of Indiana concerning the 1966 FLSA
amendments at issue in this case. See Indiana v. Usery, 427
U.S. 909 (1976). This, coupled with no case applying Garcia
retrospectively to traditional state functions supports the cor-
rectness of the result reached below.” Prospective application
footnote 21 (cont.)
this or any case; (2) financial havoc would result to the state
budget and do little to insure future compliance, noting that
even Mr. Garcia was not awarded wages despite establishing
his right to them, Garcia v. San Antonio Metropolitan Transit
Authority, 838 F.2d 1411, 1418-20 (Sth Cir. 1988), cert.
denied 488 U.S. 889 (1988); and (3) awarding patients FLSA
coverage for a period when Indiana hospital staff (nor anyone
else for that matter) obtained coverage would be inequitable
(Al1-14).
2 See Achinclose v. Palm Beach Florida, 854 F.2d 931
(11th Cir. 1988); Mineo v. Port Authority of New Yorkand New
Jersey, 779 F.2d 939 (3rd Cir. 1985); Kartevold v. Spokane
Couaty Fire Protection, 625 F.Supp. 1553 (E.D.Wash. 1986);
Kukla v. Village of Antioch, 647 F.Supp. 799; Thurman vy. City
of Union City, Tennessee, 628 F.Supp. 146(W.D.Tenn. 1986);
and Brooks v. Village of Lincolnwood,620 F.Supp. 24 (N.D.U1.
1985). Three district courts permitted pre-Garcia claims
against municipalities only after determining that the job met
25
: :
of Garcia is, in reality, the only result fiscally possible given
the financial chaos that was a real possibility following this
Court's sudden abandonment of National League.
This Court has not directly decided the issue of retrospec-
tive/prospective application of Garcia, but did deny certiorari
to Mr. Garcia, Garcia v. San Antonio Transit Authority, 838
F.2d 1411 (Sth Cir. 1988), cert. denied, 488 U.S. 889 (1988),
when he raised precisely that question. While Indiana, as well
as other states, might welcome the retum visit to the FLSA
suggested by the Garcia minority, Garcia, 469 U.S. at 580 and
S89, it should occur in a case unencumbered by the fatal
procedural flaws that burden this FLSA action.
A resolution of this case on less than reversal of Garcia
would have no meaningful application to FLSA litigation. It
is most unl'kely that there exists anywhere in this country a live
case regarding public employment or wages from 1970 through
1974 which will benefit from a lengthy decision from this
Court on when Wirtz, National League, Usery, and Garcia
applied or did not apply. Nor will a scholarly discussion of
retrospective/prospective application of case law provide general
guidance, as FLSA application to public employment appears
uniquely volatile.
footnote 22 (cont.)
the National League test; i.e. non-traditional employment.
Bester v. Chicago Transit Authority, 676 F.Supp. 833 (N.D-II.
1987); Brusstar v. Southeastern Pennsylvania Transportation
Authority, 636 F.Supp. 1557 (E.D.Penn. 1986); and Joynerr v.
City of Macon, 627 F.Supp. 1352 (N.D.Ga. 1986).
26
In short, the FLSA issue Plaintiffs raise on certiorari does
not matter even to them and has no wider significance. As
Plaintiffs have failed to comply with the very act they seek to
invoke, /.e., have filed no timely “opt-in” notices, along with
the other subsidiary problems noted herein, and are wrong on
the prospective/retrospective issue in any event, they have
failed to present an issue to justify discretionary review by this
Court.
CONCLUSION
For the foregoing reasons, the Petition for Writ of Certio-
rari should be denied.
Respectfully submitted,
LINLEY E. PEARSON
Attorney Gene/al of Indiana
ROBERT S. SPEAR
Chief Counsel
DAVID MICHAEL WALLMAN
Deputy Attorney General
and Counsel of Record
Office of Attorney General
219 State House
Indianapolis, IN 46204-2794
Telephone: (317) 232-6315
Attorneys for Respondents
ta
a |
APPENDIX A
FAIR LABOR STANDARDS ACT
TITLE 29, U.S. CODE
§ 214 Employment under Special Certificates
** *
(c) Handicapped workers
(1) The Secretary, to the extent necessary to pre-
vent curtailment of opportunities for employment,
shall by regulation or order provide for the employ-
ment, under special certificates, of individuals (includ-
ing individuals employed in agriculture) whose earn-
ing Or productive capacity is impaired by age, physical
or mental deficiency, or injury, at wages which are—
(A) lower than minimum wage applicable under
section 206 of this title,
(B) commensurate with those paid to nonhan-
dicapped workers, employed in the vicinity in
which the individuals under the certificates are
employed, for essentially the same type, quality,
and quantity of work, and
(C) related to the individual’s productivity
(2) The Secretary shall not issue a certificate under
paragraph (1) unless the employer provides written
assurances to the Secretary that—
A-|
(A) in the case of individuals paid on an hourly
rate basis, wages paid in accordance with’ para-
graph (1) will be reviewed by the employer at
periodic intervals at least once every six months,
and ~
(B) wages paid in accordance with paragraph
(1) will be adjusted by the employer at periodic
intervals, at least once each year, to reflect changes
in the prevailing wage paid to experienced nonhan-
dicapped individuals employed in the locality for
essentially the same type of work.
(3) Notwithstanding paragraph (1), no employer
shall be permitted to reduce the hourly wage rate
prescribed by certificate under this subsection in effect
on June 1, 1986, of any handicapped individual for a
period of two years from such date without prior
authorization of the Secretary.
(4) Nothing in this subsection shall be construed to
prohibit an employer from maintaining or establishing
work activities centers to provide therapeutic activities
for handicapped clients.
xx *
§ 216 Penalties; civil and criminal liability; injunc-
tion proceedings terminating right of ac-
tion; waiver of claims, actions by Secretary
of Labor; limitation of actions; savings
provision
x* &
(b) Any employer who violates the provisions of
section 206 or section 207 of this title shall be liable to
the employee or employees affected in the amount of
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their unpaid minimum wages, or their unpaid overtime
compensation, as the case may be, and in an additional
equal amount as liquidated damages. Any employer
who violates the provisions of section 215(a)(3) of this
title shall be liable for such legal or equitable relief as
may be appropriate to effectuate the purposes of sec-
tion 215(a)(3) of this title, including without limitation
employment, reinstatement, promotion, and the pay-
ment of wages lost and an additional equal amount as
liquidated damages. An action to recover the liability
prescribed in either of the preceding sentences may be
maintained against any employer (including a public
agency) in any Federal or State court of competent
jurisdiction by any one or more employees for an in
behalf of himself or themselves and other employees
similarly situated. No employee shall be a party
plaintiff to any such action unless he gives his consent
in writing to become such a party and such consent is
filed in the court in which such action is brought. The
court in such action shall, in addition to any judgment
awarded to the plaintiff or plaintiffs, allow a reason-
able attorney’s fee to be paid by the defendant, and
costs of the action. The right provided by this subsec-
tion to bring an action by or on behalf of any employee,
and the right of any employee to become a party
plaintiff to any such action, shall terminate upon the
filing of a complaint by the Secretary of Labor in an
action under section 217 of this title in which (1)
restraint is sought of any further delay in the payment
of unpaid minimum wages, or the amount of unpaid
Overtime compensation, as the case may be, owing to
such employee under section 206 or section 207 of this
title by an employer liable therefore under the provi-
sions of this subsection or (2) legal or equitable relief
is sought as a result of alleged violations of section
215(a)(3) of this title.
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§ 255 Statute of limitations
Any action commenced on or after May 14, 1947,
to enforce any cause of action for unpaid minimum
wages, unpaid overtime compensation, or liquidated
damages, under the Fair Labor Standards Act of 1938,
as amended [29 U.S.C.A. § 201 et seq.], the Walsh-
Healey Act [41 U.S.C.A. § 35 et seq.], or the Bacon-
Davis Act [40 U.S.C.A. § 276a et seq.] -
(a) if the cause of action accrues on or after May 14,
1947 - may be commenced within two years after
the cause of action accmed, and every such action
shall be forever barred unless commenced within
two years after the cause of action accrued, except
that a cause of action arising out of a willful
violation may be commenced within three years
after the cause of action accrued;
xx *
§ 256 Determination of commencement of future
actions
In determining when an action is commenced for
the purposes of section 255 of this title, an action com-
menced on or after May 14, 1947 under the Fair Labor
Standards Act of 1938, as amended [29 U.S.C.A. § 201
et seq.|, the Walsh-Healey Act [41 U.S.C.A. § 35 et
seq.], or the Bacon-Davis Act [40 U.S.C.A. § 276a er
seq.], shall be considered to be commenced on the date
when the complaint is filed; except that in the case of
a collective or class action instituted under the Fair
Labor Standards Act of 1938, as amended, or the
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Bacon-Davis Act, it shall be considered to be com-
menced in the case of any individual claimant -
(a) on the date when the complaint if filed, if he is
specifically named as a party plaintiff in the com-
plaint and his written consent to become a party
plaintiff is filed on such date in the court in which
the action is brought; or
(b) if such written consent was not so filed or if his
name did not so appear - on the subsequent date on
which such written consent is filed in the court in
which the action was commenced.
APPENDIX B
Ind. Code 16-14-18.1-3. Liability for cost of
treatment and maintenance - Exception for certain
handicapped children - Day or night care services -
Outpatient services - Statement of chargc. - Lien -
Priority. - (a) Each patient in a psychiatric hospital
and the responsible parties, individually or collec-
tively, are liable for the payment of the cost of treat-
ment and maintenance of the patient. However, when-
ever placement of a handicapped child (as defined by
IC 20-1-6-1) in a state owned or operated psychiatric
hospital is necessary for the provision of special educa-
tion psychiatric hospital is necessary for the provision
of a special education for that child, the cost of the
child’s education program, nonmedical care, and room
and board shall be paid by the department of mental
health rather than by the child’s parents, guardian, or
other responsible party. The child’s parents, guardian,
or other responsible party shall pay the cost of any
transportation not required by the child’s individual-
ized education program (as defined by IC 20-1-6-1).
The school corporation in which the child has legal
settlement shall pay the cost of transportation required
by the student’s individualized education program
under IC 20-1-6-18.2. However, this section does not
relieve an insurer or other third party from an otherwise
valid obligation to provide or pay for the services
provided to the child. The state board of education and
the department of mental health shall jointly establish
a procedure and standards for determining when hosp1-
tal placement is necessary for the provision of special
education for a child.
ee
(c) In accordance with this chapter, the commis-
sioner of the department of mental health shall com-
pute the cost of treatment and maintenance for each
patient in a psychiatric hospital.
(d) If any patient in a psychiatric hospital has
insurance coverage which covers hospitalization or
medical services in psychiatric hospitals, all benefits
thereunder, in an amount not to exceed the cost of
treatment and maintenance of such patient, shall be
assigned to the department of mental health.
(e) A charge shall be assessed for day or night care
services provided by a psychiatric hospital in an amount
not to exceed one-half (1/2) of the per capita cost for
care at that psychiatric hospital as computed under this
chapter. For the purposes of the fiscal year computa-
tion of the per capita cost of care and maintenance, a
day or night care patient is to be considered and
counted as a one-half (1/2) day patient.
(f) Outpatient services provided by a psychiatric
hospital shall be based upon the average per capita cost
of each service or program at the providing psychiatric
hospital.
(g) The department of mental health shall issue to
any party liable under this chapter for any type of psy-
chiatric service statements of sums due as maintenance
charges, requiring them to pay monthly, quarterly, or
otherwise as may be arranged, an amount not exceed-
ing the maximum cost as determined under this chap-
ter.
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(h) The estate of any patient who receives care,
treatment, maintenance, or any other service furnished
by the department at the state’s expense shall be liable
for payment of the cost of the service and shall be
exempt from the provisions of subsection (g) or any
part of this chapter directly in conflict with the intent of
the chapter to hold a patient’s estate liable for payment.
(i) The liability created by this chapter for payment
of any type of cost of treatment and maintenance of a
patient shall constitute a lien upon the real property of
the patient and responsible parties of the patient when-
ever the lien has been recorded according to the provi-
sions of this chapter. Such lien shall have priority over
all liens subsequently acquired.
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.