# Opposition Brief — Howlett v. Rose

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1456%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1990
- **Citation:** 496 U.S. 356

## Text

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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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1456%3A03. Public record. Not legal advice.