Opposition Brief — Dennis v. Higgins

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No. 89-1555 joserh F SPANION.

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in The

Supreme Court of the United States

October Term, 1989

*

MARK E. DENNIS

Petitioner

MARGARET L. HIGGINS, DIRECTOR

NEBRASKA DEPARTMENT OF MOTOR

VEHICLES, et al

BRIEF IN OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI

+

IX Mik V4 NS bh 8 | iW 7

\ttorney Ceneral

lL. lay Barr #17247

‘Counsel of Record)

\ssistant Attorney Cenera!

2115 State ¢ apitol

Lincoln, NE 68509-8990

lel (40>) i] he?

QUESTION PRESENTED

Respondents restate the Question Presented as fol-

lows:

Whether claims for violation of the dormant Com-

merce Clause are cognizable under 42 U.S.C. §1983, so as

to permit an award of attorneys’ fees under 42 U.S.C.

§1988.

il

LIST OF PARTIES

Respondents accept Petitioner's designation of par-

ties in the Petition, with the exception of noting that the

State of Nebraska was a named party defendant in the

proceedings in the trial court, and was an Appellee and

Cross-Appellant in the appeal decided by the Supreme

Court of Nebraska. (Petition, la; 28a; 31a)

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .............-.-----+++++- i

ec seceescccesccccccccoccccocccs ii

TABLE OF CONTENTS.............--00eccceeeeees iii

TABLE OF AUTHORITIES...................------ iv

Es cc ecccccce debs tccccccccnccccces 1

REESE FPF PPTOTTTTTTLTTITITT TIT 1

CONSTITUTIONAL AND STATUTORY PROVI-

arc cccesesececesccccccccocces 1

STATEMENT OF THE CASE.................---.-.. 1

REASONS FOR DENYING THE WRIT............. 2

I. THE APPLICATION OF 42 U.S.C. §1983 TO

CLAIMS UNDER THE COMMERCE CLAUSE

IS NOT A QUESTION AS TO WHICH A GEN-

UINE CONFLICT AMONG THE CIRCUITS |

CECE SCeeSeeneesdovccccesocecccces 2

Il. THE STATE COURT’S DECISION IS NOT

CONTRARY TO DECISIONS OF THIS

COURT INVOLVING THE COMMERCE

DT RRR GbESSbSSdosvccccoccccoecccoccee: 7

Ill. THE APPLICATION OF §1983 TO COM-

MERCE CLAUSE CLAIMS DOES NOT PRE-

SENT AN IMPORTANT QUESTION

NECESSITATING REVIEW.................. 11

TCs retekeeeabanesbecccccccsccccccces 14

iv

TABLE OF AUTHORITIES

Cases Citep:

ANR Pipeline Co. v. Michigan Public Service Com-

mission, 608 F.Supp. 43 (W.D.Mich. 1984)........... 3

Brown v. Maryland, 25 U.S. 262, 12 Wheat. 419

UD cv esccocoserneudeccnespeadetes -cdseéeseence 12

Chapman v. Houston Welfare Rights Org., 441 U.S.

See Ge Pons chcccvcesccsevaveccsevssserenvetesocess 5

Confederated Salish and Kootenai Tribes v. Moe, 392

F.Supp. 1297 (D.Mont. 1975), aff'd on other

grounas, GES US. G63 CIGTE) 2. nn ccccccccccscccccess 4

Consolidated Freightways Corp. v. Kassel, 730 F.2d

1139, 1146-47 (8th Cir.), cert. denied, 469 U.S. 834

GOODE ce ceverccccccsccevcossinsseedacessess 5, 6, 7, 10

Continental Illinois Corp. v. Lewis, 838 F.2d 457

(11th Cir. 1988), vacated as moot, US. _,110

S.Ct. 1249, 108 L.Ed.2d 400 (1990) ............... 3, 4

Dennis v. Siate, 234 Neb. 427, 451 N.W.2d 676

Pe btbdtsind detdenpibeht he eee te. 1

Golden State Transit Corp. v. City of Los Angeles, __

US. __, 110 S.Ct. 444, 107 L.Ed.2d 420 (1989) ...5, 6

Hensley v. Eckerhart, 461 U.S. 424 (1983)............. 13

H.P. Hood & Sons, Inc. v. DuMond, 336 U.S. 525

PE OU Senbnbkd cncdebsdcbenubebaeeneudes ceceeet 9, 12

| & |] Anderson, Inc. v. Town of Erie, 767 F.2d 1469

Se ae WED bc wk ededecddenseasudnidebnondssscs: 6

Kennecott Corp. v. Smith, 637 F.2d 181 (3d Cir. 1980)... .. 2

Kraft v. Jacka, 872 F.2d 862 (9th Cir. 1989)............ 6

es

Vv

TABLE OF AUTHORITIES - Continued

Page

Martin-Marietta Corp. v. Bendix Corp., 690 F.2d 558

Se EL a CRekenebeduckesaccconcdnentaceseeses 3

Middlesex County Sewerage Authority v. National Sea

Clammers Ass'n., 453 U.S. 1 (1981) ............0005. 5

Passenger Cases (Norris v. City of Boston), 48 U.S.

Seo Se ee SEED ocecvecccecseccuesesescecss 12

Pennhurst State School and Hospital v. Halderman,

Se SO PT Rebeccescnconcdcensecstcstuescces: 5

Pesticide Public Policy Foundation v. Village of Wau-

conda, 622 F.Supp. 423 (N.D. Ill. 1985), aff'd 826

FE SE EE es vc ncccccncnspesecsseccess 6

Private Truck Council of America, Inc. v. Secretary o

State, 503 A.2d 214 (Me.), cert. denied, 476 U.S.

SUE GUE erbeseccensccvavivescccesctsecccccece: 7

Private Truck Council of America, Inc. v. State, 221

N.Jj.Super. 89, 534 A.2d 13 (1987), aff'd 111 N.J.

Ps ey ED GP UEC Ades Gonvccccsecccosceccess 6

Private Truck Council of America, Inc. v. State, 128

N.H. 466, 517 A.2d 1150 (1986)... 2.6.6.6 c eee eee, 7

State of Ga. v. Private Truck Council of America, Inc.,

258 Ga. 531, 371 S.E.2d 378 (1988)................. 6

Statutes Crrep:

IEEE er aes Eee rE Meare 12

28 U.S.C. § 1343(3) ............

| ee

ES Rae eee eee eae eee 4

&

vi

TABLE OF AUTHORITIES - Continued

Page

PS SUE nadsevcdecveucendsscnceueceteeceness 3

Se es Un 006 6neeee sevstecessicctesevees passim

Se ee OP Sb crete cccccécvvesssecccccecsecs 3, 4, 12

OrHeR CITaTIONs:

Collins, “Economic Rights,” Implied Constitutional

Actions, and the Scope of Section 1983, 77 Geo.L.].

Py Gan aneenccseescccecscceseeeeecess 11, 12, 13

Hohfeld, Some Fundamental Legal Conceptions as

Applied to Judical Reasoning, 23 Yale L.J. 16 (1913) ..... 4

R. Stern, E. Gressman, & S. Shapiro, Supreme Court

, OC) | & ae eT 2

a GOMEE., ASE. & GOS. ] GE. Brn cccccccccccvccccces .9

OPINIONS BELOW

The opinion of the Supreme Court of Nebraska [here-

inafter “State Court”], reprinted in Appendix A to the

Petition, is reported as Dennis v. State, 234 Neb. 427, 451

N.W.2d 676 (1990). The opinion of the District Court of

Lancaster County, Nebraska, reprinted in Appendix B to

the Petition, is not reported.

—

JURISDICTION

The jurisdictional grounds are adequately stated in

the Petition.

~

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Respondents are satisfied with the constitutional pro-

visions and statutes set forth in the Petition.

™

STATEMENT OF THE CASE

Respondents submit that an adequate and concise

statement of the case, including all facts material to the

question presented, is provided in the opinion of the

State Court. (Petition, 3a-4a).

+

“REASONS FOR DENYING THE WRIT

The Petition does not present any grounds for grant-

ing certiorari as set forth in Rule 10 of the Rules of this

Court. Respondents respectfully submit that the Petition

should be denied.

I. THE APPLICATION OF 42 U.S.C. § 1983 TO

CLAIMS UNDER THE COMMERCE CLAUSE IS

NOT A QUESTION AS TO WHICH A GENUINE

CONFLICT AMONG THE CIRCUITS EXISTS.

The Petitioner requests the Court to review the State

Court’s decision chat there is no cause of action under 42

US.C. § 1983 (1982) for violations of the Commerce

Clause. In support of his request, Petitioner asserts there

is a conflict among the Circuits and several state supreme

courts on the question of whether a claim for violation of

the Commerce Clause is cognizable under 42 U.S.C.

§ 1983. Petition, pp. 8-9. Respondents submit a review of

the cases cited by Petitioner reveals the conflict on this

issue is not substantial and is not of the type to make this

case deserving of further review.

In order to warrant a writ, there must be a “real or

‘intolerable’ conflict on the same matter of law or fact,_

and not merely inconsistency in dicta. .. .” R. Stern, E.

Gressman, & S. Shapiro, Supreme Court Practice § 4.3 (6th

ed. 1986). The conflict relied upon by Petitioner, however,

arises principally from a remark made in a footnote to the

Third Circuit’s opinion in Kennecott Corp. v. Smith, 637

F.2d 181, 186 n.5 (3d Cir. 1980), stating that claims under

the Commerce Clause and the Williams Act are actionable

under § 1983. There was no considered discussion of the

—_—"

issue, and, in any event, the remark was dictum, as the

injunction sought was sustainable on grounds other than

the § 1983 exception to the Anti-Injunction Act, 28 U.S.C.

§ 2283.

The Sixth Circuit decision in Martin-Marietta Corp. v.

Bendix Corp., 690 F.2d 558 (6th Cir. 1982), is similarly

devoid of any discussion as to the propriety of a party

maintaining a cause of action under § 1983 for violation

of the Commerce Clause. The sole reference to the issue is

a conclusory remark that the plaintiffs stated claims un-

der § 1983 based on alleged violations of the Supremacy

Clause and the Commerce Clause. Id. at 562. There is no

indication in the Sixth Circuit's opinion that the propriety

of this conclusion was either challenged or considered.

The federal district court decision from the Sixth Circuit

cited by Petitioner, ANR Pipeline Co. v. Michigan Public

Service Commission, 608 F.Supp. 43, 48 (W.D.Mich. 1984),

simply follows the erroneous statement in Martin-Mariet-

ta Corp. v. Bendix Corp. in finding that § 1983 covers

actions brought under the Supremacy Clause and the

Commerce Clause.

The Eleventh Circuit decision in Continental Illinois

Corp. v. Lewis, 838 F.2d 457, 458 (11th Cir. 1988), vacated as

moot, US. __, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990),

is cited by Petitioner as support for the proposition that a

Commerce Clause challenge may properly be brought

under § 1983, thus permitting an award of attorneys fees

under § 1988. This Court vacated and remanded the

Circuit Court's decision upon finding the basis for the

action had been rendered moot by amendments to the

Bank Holding Company Act enacted shortly before the

Court of Appeals issued its initial opinion. US. at.

110 S.Ct. at 1252-53, 108 L.Ed.2d at 408. As a result of the

underlying controversy being rendered moot, the Court

did not address whether Continental could have been a

“prevailing party” in the district court, as required to

recover fees under § 1988, and declined to resolve “the

related question whether § 1988 fees are available in a

Commerce Clause challenge.” ___ U.S. at __, 110 S.Ct. at

1256, 108 L.Ed.2d at 414.

An examination of the Eleventh Circuit’s decision,

however, reveals no explanation as to what basis the

court relied upon to award attorneys fees on appeal, and

the Circuit Court’s opinion contains no discussion what-

soever on the issue of whether § 1983 is applicable to

claims for violation of the Commerce Clause. 838 F.2d at

458.' Under these circumstances, it is at best debatable as

to whether the decision in Continental Illinois Corp. v.

Lewis presents a clear and definitive statement of the

Eleventh Circuit’s position on the question presented by

Petitioner. Furthermore, as the Continental Illinois case

presented questions for review other thar the § 1983

issue, it is not clear the Court would have granted the

writ in that case if the only question presented had been

the applicability of § 1983 to Commerce Clause claims.?

' Indeed, it appears Continental suggested the Court of

Appeals awarded attorneys fees as a sanction against Lewis

under 28 U.S.C. § 1927. Brief for Appellant at 37 n.95, Lewis v.

Continental Bank Corp., Dkt. No. 87 — 1955.

2 In the other case cited by Petitioner, Confederated Salish

and Kootenai Tribes v. Moe, 392 F.Supp. 1297 (D.Mont. 1975),

aff'd on other grounds, 425 U.S. 463 (1976), an Indian tribe and

(Continued on following page)

In contrast to the foregoing, the decision principally

relied upon by the State Court, Consolidated Freightways

Corp. v. Kassel, 730 F.2d 1139, 1146-47 (8th Cir.), cert.

denied, 469 U.S. 834 (1984), exhaustively treated the ques-

tion presented in light of this Court’s determination in

Chapman v. Houston Welfare Rights Org., 441 U.S. 600,

612-15 (1979), that claims under the Supremacy Clause do

not rise to the level of a claim of “right” “secured by the

Constitution” within the mear ng of 28 U.S.C. § 1343(3),

the jurisdictional counterp>. .© § 1983, and the Court's

subsequent clecisio s in ’ennhurst State School and Hospi-

tal v. Halderman, 45: U.S. 1, 28 (1981) and Middlesex Coun-

ty Sewerage Authority v. National Sea Clammers Ass‘n., 453

U.S. 1, 19 (1981), holding that § 1983 creates a remedy

only where the statutory provision on which a claim is

(Continued from previous page)

some of its members challenged a Montana tax partly on

Commerce Clause grounds. A three-judge district court found

jurisdiction over the tribal claims under 28 U.S.C. § 1362, and,

without further analysis, found jurisdiction over the individual

claims under 28 U.S.C. § 1343(3) because the “alleged violation

of Commerce Clause rights” stated a claim under § 1983. 392

F.Supp. at 1305. This Court affirmed the jurisdictional holdings

with regard to the tribal claims under § 1362, but found it

unnecessary to determine the correctness of the holding that

§ 1343(3) provided jurisdiction over the individual claims. In a

footnote, however, this Court reminded the lower court that in

further proceedings the claims of the individual plaintiffs

“must be properly grounded jurisdictionally.” 425 U.S. at

468-69 n.7 (citation omitted). It should be noted the lower

court’s decision predates this Court’s decisions in Chapman v.

Houston Welfare Rights Org., infra; Pennhurst State School and

Hospital v. Halderman, infra; Middlesex County Sewerage Authori-

ty v. National Sea Clammers Ass'n., infra; and Golden State Transit

Corp. v. City of Los Angeles, infra.

founded “secures” a “right”.? Interpreting § 1983 in light

of these decisions and the developing jurisprudence un-

der the Commerce Clause, the Eighth Circuit held the

Commerce Clause “deals with the relationship between

state and national interests, not the protection of individ-

ual rights,” and thus did not confer a right actionable

under § 1983. Consolidated Freightways, 730 F.2d at

1144-47.4

Since this Court’s denial of certiorari in Consolidated

Freightways, every court which has squarely analyzed and

discussed the question presented by Petitioner has held

the Commerce Clause does not create “rights, privileges,

or immunities secured by the Constitution” enforceable

under § 1983. Kraft v. Jacka, 872 F.2d 862 (9th Cir. 1989); J

& | Anderson, Inc. v. Town of Erie, 767 F.2d 1469 (10th Cir.

1985); Pesticide Public Policy Foundation v. Village of Wau-

conda, 622 F.Supp. 423 (N.D. Ill. 1985), aff'd 826 F.2d 1068

(7th Cir. 1987); State of Ga. v. Private Truck Council of

America, Inc., 258 Ga. 531, 371 S.E.2d 378 (1988); Private

Truck Council of America, Inc. v. State, 221 N.J.Super. 89,

534 A.2d 13 (1987), aff'd 111 N.J. 214, 544 A.2d 33 (1988);

3 Recently, the Court definitively held tha: the Supre:

Clause does not, of its own iorce, create r= its enforceable

under § 1983. Golden State Transit Corp. ». City of Los Angeles,

_._ US. __, !10 5.Ct. 444, 107 L.Ed.2d 420 (1989).

4 As n.. | above, this Court denied a petition for cer-

tiorari in the Consolidated Freightways case. 469 U.S. 834 (1984).

The petition for certiorari in that case raised the same issue as

the instant petition. Petition for Writ of Certiorari, Dkt. No. 83

- 2119. Nothing has occurred since the Court's denial of cer-

tiorari in Consolidated Freightways which would compel a differ-

ent result in this case.

Private Truck Council of America, Inc. v. Secretary of State,

503 A.2d 214 (Me.), cert. denied, 476 U.S. 1129 (1986);

Private Truck Council of America, Inc. v. State, 128 N.H. 466,

517 A.2d 1150 (1986). Given the lack of any genuine and

clear conflict among either the Circuits or state supreme

courts subsequent to the Court’s refusal to grant review

of this issue in Consolidated Freightways, Respondents sub-

mit the Court should decline to grant the writ sought by

Petitioner.

Il. THE STATE COURT’S DECISION IS NOT CON-

TRARY TO DECISIONS OF THIS COURT IN-

VOLVING THE COMMERCE CLAUSE.

Petitioner also claims the State Court’s determination

that the Commerce Clause does not secure individual

“rights” cognizable under § 1983 is contrary to various

decisions of this Court which refer to a “right” to engage

in interstate commerce. Petition, pp. 10-11. The following

discussion from the Eighth Circuit’s decision in Consoli-

dated Freightways Corp. v. Kuovsel effectively refutes Peti-

tioner’s assertions:

It is clear from the language employed by

the Supreme Court in Commerce Clause cases

that the Commerce Clause deals with the rela-

tionship between national and state interests,

not the protection of individual rights. These

decisions are replete with references to the na-

tional or federal interest in preventing the burden-

some state regulation 9 interstate commerce.

See, e.g., Bibb v. Navajo Freight Lines, 359 U.S. 520,

524, 79 S.Ct. 962, 965, 3 L.Ed.2d 1003 (1959);

Hood & Sons, Inc. v. DuMond, 336 U.S. 525,

537-42, 69 S.Ct. 657, 664-67, 93 L.Ed. 865 (1949);

Southern Pacific Co. v. Arizona, 325 U.S. 761,

8

775-76, 65 S.Ct. 1515, 1523-24, 89 L.Ed. 1915

(1945).

» + *

To support its theory that the Commerce

Clause secures rights cognizable under § 1983,

Consolidated has cited severat Supreme Court

cases which refer to a Constitutional “right” to

engage in interstate commerce. Garrity v. New

Jersey, 385 U.S. 493, 500, 87 S.Ct. 616, 620, 17

L.Ed.2d 562 (1967); Western Union Telegraph Co.

v. Kansas, 216 U.S. 1, 21, 30 S.Ct. 190, 195, 54

L.Ed. 355 (1910); Crutcher v. Kentucky, 141 US.

47, 57, 11 S.Ct. 851, 853, 35 L.Ed. 649 (1891).

Although these cases do refer to engaging in

interstate commerce as a constitutional right,

such cases were not dealing with the question of

whether the Commerce Clause secures individu-

al rights within the meaning of § 1983. In Garrity

the reference to interstate commerce was mere

dictum, and in both Western Union and Crutcher,

the focus of the Court’s opinions was on the

separation of powers between the national and

state legislatures. Despite these references to a

right to engage in interstate commerce, we agree

with the district court that the Commerce Clause

was adopted, and the dormant Commerce

Clause doctrine evolved, not to protect individ-

ual rights, but to further the national interest in

an efficient economy. See generally Hood & Sons,

Inc., 336 U.S. at 537-39, 69 S.Ct. at 664-66.

Although individuals are oftentimes bene-

fited through the indirect protection resulting

from the limitations placed on the states

through the dormant Commerce Clause doc-

trine, such benefit is not the same thing as a

“right” secured by the Constitution within the

meaning of § 1983.

730 F.2d at 1144-45 (footnotes omitted).

Indeed, the plain meaning of the statutory language

employed in § 1983 precludes the conclusion that a claim

of violation of the Commerce Clause is actionable under

§ 1983. A claim that state action violates the dormant

Commerce Clause does not state a claim for “the depriva-

tion of any rights, privileges, or immunities secured by

the Constitution . . . to any citizen or other person” as

required by § 1983. The language of the Commerce

Clause makes no reference to any right, privilege, or

immunity secured to citizens or persons. Rather, the

Commerce Clause deals specifically with a power granted

to Congress, stating: “The Congress shall have Power

. To regulate Commerce . . . among the several

States... .” U.S.Const., Art. I, sec. 8, cl. 3.5

Thus, the Commerce Clause vests the national gov-

ernment with the plenary “power” to regulate interstate

commerce. The Court has not enforced the Commerce

Clause as an individual constitutional right granted to

individual market participants, but rather as a means to

allocate power between the state and federal govern-

ments to protect and preserve the national economy. See,

e.g., H.P. Hood & Sons, Inc. v. DuMond, 336 U.S. 525, 537-38

(1949) (purpose of Commerce Clause is to promote com-

petition and the free flow of commerce so as to prevent

“economic isolation” and ensure that “our economic unit

is the Nation.”). While individuals possess the ability to

> A leading authority has identified four separate classes

of legal entitlements: “rights,” “privileges,” “immunities,” and

“powers.” Hohfeld, Some Fundamental Legal Conceptions as Ap-

plied to Judicial Reasoning, 23 Yale L.J. 16 (1913). Significantly,

§ 1983 contains reference only to the first three of these entitle-

ments.

10

bring suit to enforce the supreme power of the federal

government over matters relating to interstate commerce,

the ability of an individual to sue as an incidental or

indirect beneficiary of the federal “power” over interstate

commerce is not a constitutional “right” protected by

§ 1983.

This is consistent with the decision of the State Court,

adopting the Eighth Circuit’s view in Consolidated Freight-

ways Corp. v. Kassel, that “the Commerce Clause was

adopted, and the dormant Commerce Clause doctrine

evolved, not to protect individual rights, but to further

the national interest in an efficient economy.” 730 F.2d at

1145. Furthermore, as explained by one commentator, the

fact that the Court has, on occasion, made general refer-

ences to a “right” to engage in interstate commerce, does

not establish the existence of a constitutional “right”

within the meaning of § 1983:

[T]he Court sometimes has referred to a ‘right’

to engage in interstate commerce free of state

impediments. In addition, modern dormant

commerce clause analysis focuses primarily on

the antiprotectionist and nondiscrimination

principles that the clause embraces. But judicial

enforcement of such constitutional limits on

state government at the behest of private parties

no more secures an individual right for the pur-

poses of § 1983 than it does in the context of the

supremacy clause, or other provisions that allo-

cate power between the states and federal gov-

ernment. And although it is true that federalism

limitations protect individual freedoms, the

right here is not one to be free of discriminatory

legislation, but to be free of it in the absence of a

congressional mandate.

11

Collins, “Economic Rights,” Implied Constitutional Actions,

and the Scope of Section 1983, 77 Geo.L.J. 1493, 1550 (1989)

(footnotes omitted).

In sum, when taken in proper context, the asserted

inconsistency between the decision of the State Court and

statements contained in decisions of this Court as to the

scope of the Commerce Clause does not, in reality, exist.

Accordingly, the Court should decline to grant the writ.

lll. THE APPLICATION OF § 1983 TO COMMERCE

CLAUSE CLAIMS DOES NOT PRESENT AN IM-

PORTANT QUESTION NECESSITATING RE-

VIEW.

Finally, Petitioner asserts the application of § 1983 to

claims under the Commerce Clause is “extremely impor-

tant to the effective enforcement” of the Clause. Petition,

p. 12. An analysis of the nature and long history of

Commerce Clause litigation, however, reveals this asser-

tion is unwarranted. Furthermore, Respondents submit

the expansion of § 1983 into the realm of Commerce

Clause litigation is not only unnecessary to ensure the

effective enforcement of the Clause, but would also be

extremely detrimental to state interests.

Commerce Clause claims, unlike claims brought to

redress violations of individual constitutional rights, are

economic in nature and involve disputes between busi-

ness interests and government over taxes and other regu-

latory legislation. From a historical perspective, it was

not until four years after § 1983 was enacted that private

parties began to litigate Commerce Clause cases in feder-

al court. Act of March 3, 1875, § 1, 18 Stat. 470 (creating

12

federal question jurisdiction) (codified as amended at 28

U.S.C. § 1331). Previously, dormant Commerce Clause

claims were brought in state court. Following enactment

of the federal question statute in 1875, actions involving

dormant Commerce Clause claims brought in federal

court were based on federal question jurisdiction, not

§ 1983 and its jurisdictional counterpart. Collins, supra, 77

Geo.L.J. at 1507-33; 1551. Even after the creation of feder-

al question jurisdiction, numerous Commerce Clause

cases have been brought in state court, including the

instant case, subject to the possibility of review in this

Court. E.g., H.P. Hood & Sons, Inc. v. DuMond, 336 U.S. at

529.

Thus, private litigants have historically possessed

sufficient opportunities and incentives to litigate Com-

merce Clause claims without resort to § 1983. The only

reason to bring such a claim under the civil rights legisla-

tion is to enhance the opportunity to recover damage

awards and to secure attorneys’ fees under § 1988. There

is no reason to believe Congress intended to embrace

claims under the Commerce Clause within the coverage

of § 1983. Long before the progenitor of § 1983 was

enacted in 1871, private litigants had resort to the courts

to assert claims that state actions violated the Commerce

Clause. See, e.g., Passenger Cases (Norris v. City of Boston),

48 US. 122, 139, 7 How. 283, (1848); cf. Brown v.

Maryland, 25 U.S. 262, 12 Wheat. 419 (1827). There was no

need for Congress to create an additional remedy for such

claims in the 1871 Civil Rights Act. It is also unlikely that

Congress, in enacting 42 U.S.C. § 1988, “[t]he purpose of

13

[which] is to ensure ‘effective access to the judicial pro-

cess,’ Hensley v. Eckerhart, 461 U.S. 424, 429 (1983), in-

tended to reverse the traditional American rule against

fee shifting for cases which historically had “effective

access” to the courts.

Furthermore, as a matter of policy, attorneys’ fees

awards are neither necessary nor desirable in dormant

Commerce Clause litigation. Business interests challeng-

ing discriminatory state regulation (unlike individuals

seeking redress for violations of personal rights guaran-

teed by the Constitution) do not need the economic incen-

tive of attorneys’ fees to prosecute Commerce Clause

claims. The imposition of damage awards and attorneys’

fees in Commerce Clause litigation would impose a seri-

ous financial burden on state officials and would un-

doubtedly have a chilling effect on their willingness to

engage in legitimate and needed activities in areas such

as taxation and the regulation of business activity. Col-

lins, supra, 77 Geo. L.J. at 1562. The purpose of § 1983, to

provide a means to redress violations of individual civil

liberties guaranteed by the Constitution, is not promoted

by allowing resort to its provisions as a means to further

purely economic interests. The extension of § 1983 into

the realm of Commerce Clause litigation is unwarranted

both as a matter of law and as a matter of policy.

+>

14

CONCLUSION

The Petition for Writ of Certiorari should be denied.

Respectfully submitted,

MARGARET L. HIGGINS, DIRECTOR,

NEBRASKA DEPARTMENT OF

MOTOR VEHICLES, et al.,

Respondents,

BY Robert M. Spire, #13977

Attorney General

L. Jay Barte., #17247

(Counsel of Record)

Assistant Atto General

2115 State Capito

Lincoln, NE 68509-8920

Tel: (402) 471-2682

_ Attorneys for Respondents.