# Opposition Brief — Dennis v. Higgins

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1991
- **Citation:** 498 U.S. 439

## Text

| FILE

ED

FIL
wy |
No. 89-1555 joserh F SPANION.
t LER =
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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0740%3A03. Public record. Not legal advice.