Opposition Brief — Howlett v. Rose

Bees RILED

: OcT 12 1s

No. 89-5383 aa

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1989

MARK HOWLETT, a minor by and through

ELIZABETH HOWLETT, his mother, natural

guardian and friend, Petitioners,

SCOTT ROSE, as Superintendent of Schools ;

for Pinellas County, Florida; WILLIAM GREY, )

THOMAS PETIT, and THE SCHOOL BOARD OF

PINELLAS COUNTY, FLORIDA, Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

RESPONDENTS’ BRIEF IN OPPOSITION

BRUCE P. TAYLOR

School Board Attorney

1960 East Druid Road

P.O. Box 4688

Clearwater, FL 34618

813/462-9677

Counsel for Respondents

QUESTION PRESENTED FOR REVIEW

WHETHER THE FEDERAL CIVIL RIGHTS ACT OF 1871, 42 U.S.C. SECTION

1983 ABROGATES STATE SOVEREIGN IMMUNITY IN SUITS BROUGHT AGAINST

A STATE OR ONE OF ITS AGENCIES IN ITS OWN STATE COURTS.

TABLE OF CONTENTS

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REQUEST FOR DENIAL OF PETITION.........cccccccccccccecccccceeel

REASONS WHY THE PETITION SHOULD BE DENIED.............+-- coteal

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ii

TABLE OF AUTHORITIES

Baker v. McCollan, 443 U.S 137, 99 S.Ct, 2689,

61 L.Ed.2d 433 ( )

Civil Action Against State Governments: Its Divisions, Agencies

and Officers (Winborne, ed. 1982)

Felder v. vais 487 U.S.__, 108 S.Ct. , 101 L.Ed.2da 123

( )

Gumbhir v. Kansas State Board of Pharmacy, 231 Kan. 507, 646 P.2d

1078 < )

Hill v. Dept. of Corrections, 513 So.2d 129 (Fla. 1989) cert.

denied _U.S.__, 108 S.Ct 1024, 98 L.Ed.2d 989 (1988)

Howlett by Howlett v. Rose, 537 So.2d 706 (Fla. 2nd DCA 1989)

Jeffers v. Ray County, 750 S.W.2d 599 (Mo.App.1988)

Martinez v. State of California, 444 U.S 277, 100 S.Ct. 553, 62

Le . ( )

Moss v. Robertson, 712 S.W.2d 351 (Ky.App.1986)

Mt. Healthy City School Board of Education v. Doyle, 429 U.S. 274

97 S.Ct. 568, 50 L.Bd.2d 471

Quern v. Jordan, 440 U.S 332, 99 S.Ct. 1347, 39 L.Ed.2d 662

(1984)

Ramah Navajo School Board v. Bureau of fevense: 104 N.M. 302,

20 P.2 (N.M.App) cert den _. U.S.__, 107

S.Ct. 423, 93 L.Ed.2d 373 (1986)

42 U.S.C. $1983

Rule 17.1l(c), Supreme Court Rules

$768.28, Fla. Stat.

iii

ad et i i a ON ns Fo a el, | oe ee la 8d | a le — ea allt al ——! yr” - ad = a

MARK HOWLETT, a minor by and through

ELIZABETH HOWLETT, his mother, natural

guardian and friend, Petitioners,

Vv.

SCOTT ROSE, as Superintendent of Schools

for Pinellas County, Florida; WILLIAM GREY,

THOMAS PETIT, and THE SCHOOL BOARD OF

PINELLAS COUNTY, FLORIDA, Respondents.

The respondents respectfully request that this Court

deny the petition for writ of certiorari, seeking review of the

District Court of Appeal for Florida, Second District, opinion in

this case. That opinion is reported at 537 So.2d 706 (1989).

REASONS WHY THE PETITION SHOULD BE DENIED

I. The district court decision does not conflict with prior

decision of this Court.

Petitioner has failed to show-that the District Court

of Appeal for the Second District of Florida, (hereinafter Second

DCA), decision in Howlett by Howlett v. Rose, 537 So.2d 706 (Fla.

2nd DCA 1989), is in conflict with applicable decisions of this

Court so as to give rise to this Court's jurisdiction pursuant to

Rule 17 of the Supreme Court Rules. Rule 17.lic) states:

(c) When a state court or federal court of

appeals has decided an important question of

federal law which has not been, but should

be, settled by this Court, or has decided a

federal question in a way in conflict with

applicable decisions of this Court.

Petitioner relies on two of this Court's decisions to support the

reguest for discretionary review.

Petitioner claims that the opinion rendered by the

DCA in Howlett by Howlett v. Rose, 537 So.2d 706 (Fla. 2nd DCA

1989), is in conflict with the decision rendered in Felder v.

Casey, 487 U.S. _, 108 S.Ct. _, 101 L.Ed.2d 123 (1988), and

Martinez v. State of California, 444 U.S. 277, 100 S.Ct. 553, 62

L.Ed.2d 481 (1980). Such reliance is misplaced. Careful reading

of these two cases in accordance with the decision in Howlett

reveals no such conflict.

Martinez, supra, involved a claim against the State of

California for damages arising after the murder of a 15-year old

girl by a parolee, a known repeat sex offender. The action was

brought under state statutes and 42 U.S.C. §1983 in the state

court system. The state claimed immunity pursuant to a state

statute which provided absolute immunity to state officials and

employees for injuries which resulted from a decision to release

or parole a prisoner. This Court did not, however, address the

immunity question but rather ruled that no right guaranteed by

the United States Constitution or a law of the United States was

violated, dispensing with the need to reach the immunity issue.

This Court stated:

It is clear that the California immunity

statute does not control this claim even

though the federal cause of action is being

asserted in the state courts. We also

conclude that it is not necessary for us to

decide any question concerning the immunity

of state parole officials as a matter of

federal law because, as we recently held in

Baker v. Masois20 443 U.S 137, 99 S.Ct.

’ L.Ed. , “(t)he first inquiry in

any §1983 suit ... is whether the plaintiff

has been deprived of a right ‘secured by the

Constitution and laws’ of the United States.

The answer to that inquiry disposes of this

case.

Martinez, supra, at 284 (footnote omitted).

Petitioner further indicates that Martinez, supra,

(which does not conflict with Howlett) should be read in

connection, and together, with Felder v. Casey, 487 U.S. _, 108

S.Ct. _, 101 L.Ed.2d 123 (1988). Felder, supra, involved a 42

U.S.C. $1983 claim against the City of Milwaukee, Wisconsin and

several police officers after an injury allegedly inflicted on a

black individual by white police officers. This case involved a

Wisconsin notice of claim statute in regards to §1983 claims.

This Court, while thoroughly addressing the notice provisions and

the intent of Congress in enacting §1983 legislation, did not

Sgquarely address the issue of sovereign immunity. Thus, no

conflict arises which would invoke jurisdiction over the Howlett

decision in the Florida courts.

In Howlett, supra, the DCA relied on Hill v. Dept. of

Corrections, 513 So.2d 129 (Fla. 1987), a well reasoned opinion

by the Florida Supreme Court. Hill addressed the applicability

of the Eleventh Amendment immunity, state common law immunity,

and §768.28, Fla. Stat. (1988) in causes of action brought under

42 U.S.C. $1983.

The Florida Supreme Court first considered the effect

of the Eleventh Amendment on suits filed under 42 U.S.C. §1983.

The court relied on Quern v. Jordan, 440 U.S 332, 99 S.Ct. 1347,

39 L.Ed.2d 662 (1984), for the proposition that §1983 is not a

"congressional abrogation of a state's eleventh amendment

immunity." Hill, supra, at 131. The eleventh amendment applies

to actions brought in federal courts. This Court in Quern, supra

stated that Congress did not intend §1983 to override traditional

sovereign immunity.

The court in Hill analyzed the distinction between

Eleventh Amendment immunity and sovereign immunity and stated:

In Ramah Navajo School Board v. Bureau of

Revenue, 104 N.M. 302, 720 P.2d 1243

(N.M.App.) cert. denied, U.S. » 107

S.Ct. 423, 93 L.Ed.2d 373 (1986), the court

addressed the question by first explaining:

“Sovereign immunity and Eleventh Amendment

immunity are, of course, distinct concepts,

but both immunities are designed to protect

the same object - state government. Civil

Action Against State Government: Its

ed. De e Eleventh Amendment shields

the operation of state governments from

intrusions from the federal judiciary while

sovereign immunity protects state governments

from intrusions from the federal judiciary

while sovereign immunity protects state

government affairs from interference by

plaintiffs and state courts. Id. Therefore,

when a Section 1983 suit is brought in

federal court, the court analyzes whether the

defendant is a “person” within the meaning of

Section 1983 or, more meaningfully expressed,

whether the Eleventh Amendment bars the suit

from being brought against that defendant.

Similarly, in Section 1983 actions brought in

state courts, the court determines whether

sovereign immunity bars the suit. Gumbhir v.

Kansas State Board of Pharmacy [231 Kan. 507,

P. -

104 N.M. at 307, 720 P.2d at 1248. The court

then reasoned that since Congress in enacting

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section 1983 did not intend to destroy the

state's eleventh amendment immunity from suit

brought in federal court, it logically

followed that Congress also did not intend to

abrogate the state's sovereign immunity from

section 1983 suits brought in state courts.

Hill, supra, at 131.

The Court did indicate that just as in a case which

involves eleventh amendment immunity, the courts must determine

if there has been a waiver of sovereign immunity. The question

of waiver is not an issue raised by petitioner.

II. Eleventh Amendment Immunity

Petitioner makes reference to the immunity issue as it

relates to the School Board of Pinellas County and cites Mt.

Healthy City School Board of Education v. Doyle, 429 U.S. 274, 97

S.Ct. 568, 50 L.Ed.2d 471 (1977). Mt. Healthy applies only to

eleventh amendment immunity issues and addresses the question of

whether the school district is an arm of the state by analyzing

the powers and duties of the school district. Petitioner

attempts to utilize this same rationale to determine the

applicability to the instant case. In Howlett, however, eleventh

amendment immunity has not been addressed and does not apply.

Petitioner's analysis of Mt. Healthy here is inappropriate.

III. Conflicting state court decisions distinguishable.

Petitioner cites a number of state court decisions to

support the proposition that state courts have contradicted

existing U.S. Supreme Court decisions. These cases are

distinguishable from the instant case. Moss v. Robertson, 712

S.W.2d 351 (Ky.App.1986) involved a §1983 suit against an

individual in his individual capacity. The Kentuckey court did

not address the sovereign immunity issue and dismissed the suit

against the individual for lack of governmental action. Moss,

Supra, does not contradict either Martinez, supra, or Felder,

supra.

Further, petitioner cites Jeffers v. Ray County, 750

S.W.2d 599 (Mo.App. 1988), which also was a §1983 claim. That

court did not address an immunity situation, but whether or not

the factual allegations were sufficient to support a $1983 claim.

The court stated that a plaintiff cannot take a common negligence

action and turn it into a §1983 claim. No conflict with

Martinez, supra, or Felder, supra, exists. The remaining cases

also cited do not involve sovereign immunity as does Howlett and

do not constitute conflicts with the existing decisions of this

Court, and thus, cannot give rise to jurisdiction of this Court

pursuant to Rule 17 of the Supreme Court Rules.

Conclusion

Petitioner has failed to show sufficient conflict with

existing decisions of this Court to invoke jurisdiction for

review pursuant to the provisions of Rule -7 of the Supreme Court

Rules. Howlett, supra, the instant case is not in conflict with

the decisions cited by petitioner. Howlett, supra, relied on

Hill v. Department of Corrections, 513 So.2d 129 (Fla. 1987),

cert. denied, U.S. __, 108 S.Ct. 1024, 98 L.Ed.2d 969 (1988).

Neither of these Florida court decisions is in conflict with

Martinez, supra, or Felder, supra.

Eleventh Amendment immunity is not applicable here and

thus discussion of Mt. Healthy is not appropriate to this

petition. Further, cases cited by petitioner alleging widespread

incorrect decisions regarding sovereign immunity are completely

distinguishable so do not conflict with existing decisions of

this Court, and do not give rise to jurisdiction under Rule 17.

For the foregoing reasons, respondents respectfully

request that the Court deny Petitioner's request for a writ of

certiorari.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY a true copy of the foregoing has been

forwarded to Gardner W. Beckett, Jr., Esq., Nelson, Beckett &

Nelson, 123 Bighth Street North, St. Petersburg, FL 33701 this

the | C. day of October, 1989.

— Koya 2. Saul

BRUCE P. TAYLOR (\

School Board Attorney

1960 East Druid Road

P.O. Box 4688

Clearwater, FL 34618

813/462-9677

clm

—.

RECEIVED

AUG 25 1989

SUPREME COURT OF THE UNITED STATES OFFICE OF THE CLERK

Ce [_ SUPREME cover, us

———

APPEARANCE FORM

vs.

Mark Howlett, etc. Scott Rose, etc., et al.

(Petitioner e-Appettanty- (Respondent er-Appetter)—

The Clerk will enter my appearance as Counsel of Record for _Mark Howlett

(Please list names of al) parties represented)

£2 Petitioners) DC Respondent(s)

2 Appellant(s) © Appelieeis)

who IN THIS COURT is ©) Amicus Curiae

I certify that I am a member of the Bar of the Supreme Court of the United States:

Signature _<* - 2%—--wn—

(Type or print) Name Gardner W. Beckett Jr.

fJMr. OMs. OMrs. O Miss

Firm Nelson, Beckett & Nelson

Address __123 Eighth Street North

City & State St. Petersburg. FL Zip___i3701

Phone @ 1 3) 822-4084

ONLY COUNSEL OF RECORD SHALL ENTER AN

APPEARANCE. THAT ATTORNEY WiLL BE

THE ONLY ONE NOTIFIED OF THE COURT'S

ACTION IN THIS CASE. OTHER ATTORNEYS

WHO DESIRE NOTIFICATION SHOULD MAKE

APYROPRIATE ARRANGEMENTS WITH COUNSEL

_OF RECORD.

ONLY ATTORNEYS WHO ARE MEMBERS OF THE

BAR OF THE SUPREME COURT OF THE UNITED

STATES MAY FILE AN APPEARANCE FORM.

IT IS IMPORTANT THAT ALL REQUESTED

INFORMATION BE PROVIDED.

CO-73A