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

A-2

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.

A-3

§ 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.

A-7

(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.

A-8

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.

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