Petitioners Brief — Howlett v. Rose

= ‘Te The District Court of Appeal

—

PTRS BRIEF

—

QUESTION PRESENTED

Whether the Supremacy Clause is violated by Florida!

decision to shield a local school board and its officials from

liability under 42 U.S.C. § 1983 by enforcing, in its state

courts, a rule of state sovereign immunity that is not

recognized by federal law and that would not apply if the

very same lawsuit were brought in federal court?

ii

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES. es... iii

ee, RAG, oo ccc cccccccccccccccseccsesooeess 1

re eee ee eee eee e e 1

STATUTES INVOLVED. oo. 1

STATEMENT OF THE CASE gg 1

SUMMARY OF ARdumENW᷑ rr... 5

AREER oc . .o eeeeeeee sees eee eee ee eee 7

I. Tue Scope Or Any Immunity DereNnse UNDER

§1983 Is GoverRNep By FEDERAL Law

REGARDLESS Or THe Forum IN Wuicu THE

111 (

A. The Decision Below Is Inconsistent With The

Established Precedents Of This Court ......

B. Respondents Would Not Be Shielded By A Sov-

ereign Immunity Defense in Federal Court ;

C. The Decision Below Is Inconsistent With The

History And Purposes Of § 1983 ...........

II. Tue Decision BeLow Must Be Reversepd EVEN

Ir Ir Is Viewep As A JuRISDICTIONAL Bar To

§ 1983 Surrs In Tue Stare Courts ............

A. The Decision Below Does Not, On Its Face,

Foreclose Jurisdiction Over § 1983 Claims ...

B. States May Not Enforce Jurisdictional Rules

That Discriminate Against Federal Claims ..

C. States May Not Enforce Jurisdictional Rules

That Reflect Substantive Disagreement

Policies Inherent In Federal Law ..........

e — . ĩ

en,, . „

16

16

iii

TABLE OF AUTHORITIES

Cases

2 State Hospital v. Scanlon, 473 U.S. 234

rr eee eee eee oe 26

Bethel School District v. Fraser, 478 U.S. 675 (1986)... 12

Board of Education v, Pico, 457 U.S. 840 (1982)... .... 12

Briscoe v. Laue, 460 U.S. 325 (188) 10

Brown v. Western Ry, 388 U.S. 294 (1949)............ li

GR v. City of St. Petersburg, 547 So. 2d 339 (2d

. TTT TTTTTe 19

n Beach v. Langevin, 522 So.2d 857 (4th

1988)...... eee eee 18

Claflin v. Houseman, 93 U.S. 130 (18,76). 24

Conley v. Gibson, 355 U.S. 41 (19777 l

— — * 2 133 U.S. 529 (18900 ll

* anton Railroad Co.,

U.S. 950 (1962)... own Barend — @

Edelman v. Jordan, 415 U.S. 651 (17%) 17

Ex det Young, 209 U.S. 123 (1908)............... 13, 25

Federal Commission v Mississippi,

ee 22, 24

Felder v. Casey, 108 S.Ct. 2302 (188 passim

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) ............. 10

Fletcher v. Williams, 153 So.2d 759 (ist DCA 1963).... 1

Florida Dep't of Health and Rehabilitative Services v.

Florida Nursing Home Aas'n, 450 U.S. 147 (1981), 18

— yo S. Ct. D 7

v. 't of Health and Rehabilitaiive

Services, 779 F.2d 1509 (ilch Cir. 1986)......... . @

Garrett v. Moore-McCormack Co., 317 U.S. 239

D Ä d: 6, 11

General Oil v. Crain, 209 U.S. 211 (19086 7, 24, 26

Guaranty Trust Co. v. York, 326 U.S. 99 (1945) ........ 15

— — j 453 U.S. 473 (1981) 27

ampton v. } , 484 F.2d 602 (7th Cir. 1v73

cert. denied Lis TT Me 10

Harlow v. Fitegerald, 457 U.S. 800 (1982) ............ 7

Hazelwood School District v. Kuhimeier, 484 U.S. 260

eee ccccccccces 12

iv

Table of Authorities Continued 1

WI Corrections, 513 So. 2d 129 (1987), cert.

ied, 108 S.Ct. 1024 (1988)... nn passim

Hoffmeister v. Coler, 544 So.2d 1067 (4th DCA 1989)... 20

Imbler v. Pachtman, 424 U.S. 409 (1976) ............. 7

Kentucky v. Dennison, 65 U.S. 66 (1861) 24

Kentucky v. Graham, 473 U.S. 159 (1985). ............ 13

Lloyd v. Ellis, 520 So.2d 59 (ist DCA 1988)........... 18

Maine v. Thiboutot, 448 U.S. 1 (1980)........... 11, 23, 27

Martinez v. California, 444 U.S. 277 (1980). ....... passim

McKnett v. St. Louis & S. F. Railway, 292 U.S. 230

1 21, 22,23

Mondou v. New York, V. H. & H. R.R., 223 U.S. 1

Dees eee , 23, 25

Monell v. Dep't of Social Services, 436 U.S. 658

3 passim

Monroe v. Pape, 365 U.S. 167 (19861) 7

Mt. — — © Doyle, 429 U.S. * -

Owen 1 445 U.S. 622 (1980). passim

12 The City of Large, 549 So. 2d 738 (2d -

Patsy e Ploride Board of Regents, f U.S. 406 (982). 14

Penthouse, Inc. v. Saba, 399 So.2d 456 (2d DCA 1981).. 19

Pierson v. Ray, 386 U.S. 547 (19870: 7

Scheuer v. Rhodes, 416 U.S. 232 (1974). ............. 7, 10

Shinholster v. Graham, 527 F.Supp. 1318 (N. D. Fla. 1981) 21

Skoblow v. Ameri- Manage. Inc., 483 So. 2d 809 (3d DCA

1986), aff'd on other grounds, 514 80. 2d 1077 (1987) 19

Smith v. Wade. 461 U.S. 30 (19883 11

6, 21,

The Franklin County School Board v. Page, 540 So.2d 891

(Ist DCA 1989).

Habe = Bee ane oe ommunity

District, 398 U.S. 508 (1969) .... «6. ccc 12

Vv

Table of Authorities Continued

United States v. Classic, 313 U.S. 299 (1941).......... *

Will v. Michigan Dep't of State Police, 109 S.Ct. 2304

J passim

Wilson v. Garcia, 471 U.S. 261 (1985) ................ 10

Wood v. Strickland, 420 U.S. 308 (1975) .............. 7

STATUTES AND REGULATIONS

22 Z l

ne

EEE 118 2

Dictionary Act, 16 Stat. 431 (Feb. 25, 1871)........... 12

ee aay Ant, SUS. om

The orders of the Circuit Court for Pinellas County

dismissing petitioner’s complaint with prejudice,

(J.A.19), and denying rehearing, (J.A.23), are unre-

ported. The opinion of the District Court of Appeal for the

Second District, (Pet. App. 1), is reported at 537 So.2d 706

(2d DCA 1989). The order of the Florida Supreme Court

denying discretionary review, (Pet.App.4), is reported at

545 So.2d 1367 (1989).

The order of the Florida Supreme Court was entered on

May 17, 1989, and the petition for a writ of certiorari was

granted on November 13, 1989. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1257(a).

The appendix to this brief contains the relevant text of

the following statutes and constitutional provisions: Arti-

cle VI of the United States Constitution; 42 U.S.C.

§ 1983; and Fla. Stat. § 768.28.

STATEMENT OF THE CASE

Petitioner Mark Howlett was a student in good stand-

ing at St. Petersburg High School in Pinellas County,

Florida, when he drove his 1966 Volkswagen to school on

the morning of October 9, 1986. (J.A.4).! The car was

legally parked and locked on school property. Id. Appar-

ently, it was also blocking the path of several construction

vehicles temporarily working nearby. (J.A.5). When this

Citations are to petitioner's complaint, which must be accepted as

true in reviewing the grant of a motion to dismiss under both Florida

and federal law. See Fletcher v. Williams, 153 So.2d 759 (Ist DCA

1963); Conley v. Gibson, 355 U.S. 41 (1957).

fact was discovered later in the morning, Thomas Petit, an

assistant principal at the school and respondent herein,

was summoned to the parking lot. He promptly broke into

petitioner's car through the side vent window, ostensibly

N ee

The record does not explain why Petit chose to break

into petitioner's car rather than broadcast its license plate

number over the schools public address system. (J.A.5-6).

The record also does not explain why Petit continued to

search petitioner's car even after finding the registration

papers he was seeking. (J.A.4). What is clear is that, as a

result of his search, Petit discovered and seized four bot-

tles from petitioner's car: three were empty wine cooler

bottles; the fourth contained an unconsumed residue of

eggnog that Petit believed might have some alcohol in it.

(J.A.5).2 Based solely on this “evidence,” petitioner was

immediately suspended from regular classes for five days

under a school rule that prohibits students from drinking

Shortly thereafter, petitioner filed this action in the

Florida state courts alleging, inter alia, a violation of his

constitutional rights under 42 U.S.C. § 1983.2 The com-

plaint contained three counts. In the first count, peti-

?Petit’s suppositions about the eggnog were never verified.

(J. A.28-29).

he complaint alleged that respondent Petit was acting at all

material times “under the authority conferred upon” him by his

superiors. (J.A.5). The complaint therefore named as additional

defendants: the Pinellas County School Board; Scott Rose, the

Superintendent of Schools for Pinellas County; and William Grey, the

principal of St. Petersburg High School.

3

tioner alleged that respondents violated his Fourth

Amendment right to be free from unreasonable searches

and seizures. (J.A.6). In the second count, petitioner

alleged that his suspension was unsupported by any credi-

ble evidence and thus violated the substantive due pro-

cess guarantees of the Fourteenth Amendment. (J.A.8-9).

— — petitioner alleged that his procedural

process rights were abridged by the absence of any

— (JA. 10) As relief, petitioner sought

compensatory and punitive damages. He also sought

injunctive relief, including a request to expunge any refer

ence to the suspension from his school records.

In lieu of an answer, respondents filed a motion to

dismiss. The motion was granted by the Cir~it Court in a

one sentence order, (J.A.19),4 and then affirmed by the

District Court of Appeal in a brief two page opinion.

(Pet. App. 1). Both courts relied heavily on Hill v. Dep't of

Corrections, 513 So.2d 129 (1987), cert. denied, 108 S.Ct.

1024 (1988), a decision of the Florida Supreme Court

which holds that the state itself may not be sued in a

§ 1983 action in the state courts. Construing Hill in the

broadest possible fashion, the District Court of Appeal

wrote:

to the extent that the actions of the state and its

Ln immunity, an

to section 1983 not lie in state

— The question of lee that sovereign

immunity exists is a question of state law and not

federal law.

(Pet. App.2).

‘ Petitioner's request for rehearing was denied without opinion.

(J.A.23).

4

The court recognized that its ruling might lead to dif-

ferent results depending on whether a § 1983 action is

brought in state or federal court. It concluded, however,

that such asymmetrical outcomes were not a cause for

(Pet. App.3) (emphasis in original).®

Petitioner appealed to the Florida Supreme Court,

arguing that the decision of the District Court of Appeal

whether it is necessary to exhaust administrative remedies before

5

was inconsistent with § 1983 and misapplied Hill. With

one judge dissenting, the Florida Supreme Court denied

discretionary review. (Pet. App. 4).

SUMMARY OF ARGUME!T

The issue in this case is whether a state ™ay provide its

local governmental units with an absolute immunity

against § 1983 actions brought in state court that is clearly

inconsistent with, and less generous than, the immunity

rules applied to § 1983 actions in federal court. This

seemingly technical inquiry has important substantive

consequences. If respondents prevail, the outcome of

§ 1983 litigation will often turn on whether a state or

federal forum is selected. To the extent that the states

provide greater protection for constitutional rights than

federal law would otherwise require, this diversity is not a

problem and should be encouraged. But to the extent that

the states provide less protection for constitutional

rights, as Florida did in this case, the core values of the

Supremacy Clause are directly at stake.

Recognizing that fact, this Court has consistently

rejected any state rule that undermines the broad

remedial purposes of § 1983. F. g., Felder v. Casey, 108

S.Ct. 2302 (1988). More particularly, this Court has con-

sistently looked at § 1983 itself rather than state law in

resolving a broad array of immunity questions over the

past two decades. E.g., Owen v. City of Independence,

445 U.S. 622 (1980). Indeed, this Court has never viewed

state law as the source of an immunity defense under

§ 1983, even when the § 1983 action was initially brought

in state court. See Martinez v. California, 444 U.S. 277

(1980).

It is worth emphasizing the broad scope of the immu-

nity defense that respondents assert in this case. It is not

limited to the state and its agencies. Cf Will v. Michigan

Dep't of State Police, 109 S.Ct. 2304 (1989). Rather, it

extends to cities and counties that are clearly subject to

suit in a § 1983 action brought in federal court. Monell v.

Dep't of Social Services, 436 U.S. 658 (1978). Given the

lative history of § 1983, it is inconceivable that the 42nd

Congress intended to confer a broader authority on the

states to immunize the unconstitutional policies of cities

and counties than it conferred on the federal courts. The

federalism interests work in petitioner's favor rather than

respondents’ under these circumstances. See Garrett v.

Moore-McCormack Co., 317 U.S. 239 (1942).

What is not clear from the decision below is whether it

also bars § 1983 actions against state officers in their

individual capacity. Absent a more authoritative state-

ment, this Court should not quickly leap to that con-

clusion. On the other hand, the decision below cannot

stand even if it is construed as an absolute jurisdictional

barrier against all § 1983 claims in the Florida courts. At

the very least, the existence of concurrent jurisdiction

means that the Florida courts may not enforce substan-

tive rules that discriminate against § 1983 suits. See Testa

v. Katt, 330 U.S. 386 (1947). Yet, that is precisely what

Florida has done by waiving sovereign immunity for all

by § 1983.

Finally, the states obligation to enforce federal law

does not end with nondiscrimination. Petitioner recog-

nizes that this Court has never definitively resolved

whether a state must exercise the concurrent jurisdiction

granted by §1983. But this Court has ruled in other

contexts that the states may not decline to exercise juris-

7

policy choices inherent in federal law. See Mondou v. New

York, N. H. &H. R. R., 223 U.S. 1 (1912). The attempt to

interpose a sovereign immunity defense on the facts of

this case represents just such a policy disagreement.

be held liable for their constitutional violations; Congress

has decided otherwise. Like every other state in the

union, Florida is now bound by that congressional deci-

sion. See General Oil v. Crain, 209 U.S. 211 (1908).

ARGUMENT

I. THE SCOPE OF ANY IMMUNITY DEFENSE UNDER

$1983 IS GOVERNED BY FEDERAL LAW

REGARDLESS OF THE FORUM IN WHICH THE CASE

IS BROUGHT

In the nearly three decades since Monroe v. Pape, 365

U.S. 167 (1961), this Court has decided numerous immu-

nity cases under § 1983. See e.g., Forrester v. White, 108

S.Ct. 538 (1988); Harlow v. Fitzgerald, 457 U.S. 800

(1982); Owen v. City of Independence, 445 U.S. 622 (1980);

Monell v. Dep't of Social Services, 436 U.S. 658 (1978);

Imbler v. Pachtman, 424 U.S. 409 (1976); Wood v. Strick-

land, 420 U.S. 308 (18/57 Scheuer v. Rhodes, 416 U.S.

232 (1974); Pierson v. Ray, 386 U.S. 547 (1967). Every one

of those cases was decided by reference to the meaning

and history of the federal statute. Not one was decided on

the basis of state law. Respondents nevertheless contend

that state law alone determines the scope of sovereign

immunity in a § 1983 action brought in state court. This

Court's decisions do not support that contention. Indeed,

this Court has expressly rejected the very position that

respondents now press on at least two separate occasions.

See generally, Steinglass, Section 1983 Litigation in State

Courts, § 15.2(d)(1) (1988).

A. The Decision Below Is Inconsistent With The Estab-

lished Precedents Of This Court

In Martinez v. California, 444 U.S. 277 (1980), the

relatives of a 15 year old girl murdered by a parolee

brought a § 1983 action in the California courts against the

parole officers who authorized the murderer's release. In

response, defendants cited a California statute that

provides absolute immunity for parole release decisions.

The California courts accepted that defense. This Court,

however, unanimously declared “that the California

immunity statute does not control this claim even though

the federal cause of action is being asserted in the state

courts.” Id. at 284.6 In an explanatory footnote, Justice

—

— 1 under color of state law

which is — — U.S.C. § 1983. . . cannot

be i by state law. A construction of the

supremacy clause of the Constitution insures that the

proper construction may be enforced . The

immunity claim raises a question of federal law.

Id. at 284 n.8, quoting Hampton v. City of Chicago, 484

F.2d 602, 607 (7th Cir. 1973), cert. denied, 415 U.S. 917

(1974).

Two years ago, in Felder v. Casey, 108 S. Ct. 2302 (1988),

the Court relied on similar reasoning to hold that Wiscon-

sin’s notice of claim provision could not be applied to § 1983

actions filed in the state courts:

® Defendants in Martinez ultimately prevailed on the alternative

ground that plaintiffs had failed to state a due process claim for relief.

444 U.S. at 283-85.

therefore entitled to a good faith defense in § 1983 actions.

This Court disagreed in an opinion that does not dis-

§ 1983. Rather, the Court looked to the purposes of § 1983

in holding:

The decision below is also inconsistent with the approach followed

last Term in Will v. Michigan Dep't of State Police, 109 S.Ct. 2304

distinguished states from localities for purposes of suit under § 1983

without any indication that the outcome of a § 1983 lawsuit against

local government could permissibly turn on whether the action was

filed in state or federal court. Id. at 2310 n.7.

445 U.S. at 647-48 (footnote omitted).

The Owen Court further noted that Imlunieipal

defenses—including an assertion of sovereign immunity

—to a federal right of action are, of course, controlled by

federal law.” Id. at 647 n. 30.5 As support for this proposi-

tion, the Court cited the same passage from Hampton v.

Chicago that it had relied on in Martinez when discussing

the inapplicability of state law defenses in § 1983 actions

filed in state court. See p.8, supra. While not dispositive,

the parallel use of an identical precedent in two cases

decided only a few months apart strongly suggests that

the Court did not perceive, in either Martinez or Owen,

that the supremacy of federal law turned on whether the

§ 1983 action was brought in federal or state court. See

also Fitzpatrick v. Bitzer, 427 U.S. 445, 455-56 (1976).

Nor should it. This Court has already decided that state

courts have concurrent jurisdiction over § 1983 claims.

The existence vel non of an immunity defense under § 1983 has

been treated by this Court as an issue of statutory construction. See

Briscoe v. LaHue, 460 U.S. 325, 326 (1983). The Courts immunity

cases have therefore focused on the history and purposes of the

federal statute almost without reference to state law. E. g., Scheuer v.

Rhodes, 416 U.S. 232 (1974). In this case, however, the result would be

the same even if one started the analysis with Florida immunity

rules. See Herman, “Beyond Parity: Section 1983 and the State

Courts,” 54 Brooklyn L. Rev. 1057, 1079 n.94 (1989). Pursuant to 42

U.S.C. § 1988, those rules could only be sustained if they were

compatible with § 1983. That judgment would ultimately be a matter

of federal law. Cf. Wilson v. Garcia, 417 U.S. 261 (1985).

ll

E. g., Maine v. Thiboutot, 448 U.S. 1, 3 n. 1 (1980). When

exercising that states may not adopt either

substantive or procedural rules that conflict with the

remedial purposes of § 1983. Cf Smith v. Wade, 461 U.S.

30, 55 n.23 (1983) (the scope of § 1983 is a matter of federal

law regardless of forum). Thus, “(flederal law takes state

courts as it finds them only insofar as those courts employ

B. Respondents Would Not Be Shielded By A Sovereign

Immunity Defense In Federal Court

There is little doubt that this case could go forward

against all respondents, including the district school

board, had it been brought in federal court. The Eleventh

Amendment bar to federal jurisdiction does not apply to

local government units. See Mt. Healthy City Board of

Ed. v. Doyle, 429 U.S. 274, 280 (1977); Fitzpetrick v.

Monell itself involved an issue of municipal liability.

This Court, however, has never distinguished between

cities and counties in its § 1983 decisions. To the contrary,

the Court has often linked the two in discussing the scope

of the federal statute. There are sound historical reasons

for the Court approach. Under the Dictionary Act of

1871. the use of the term “person” in § 1983 extended to

“public corporations,” a phrase that was commonly under-

stood at the time to “include [ ] towns, cities, and counties,

but not States.” Will v. Michigan Dep't of State Police, 109

S.Ct. at 2311 n.9."! In similar fashion, the controversial

Sherman Amendment, which figured so prominently in

the debates over § 1983, assumed an equality of status

between cities and counties. If adopted, it would have

imposed vicarious liability on cities and counties alike for

civil rights deprivations caused by their residents. Mon-

ell, 436 U.S. at 667.

This history, moreover, is amply supported by recent

practice. Over the past two decades, this Court has enter-

tained numerous § 1983 suits against local school boards

and their officials. E.g., Hazelwood School District v.

Kuhimeier, 484 U.S. 260 (1988); Bethel School District v.

Fraser, 478 U.S. 675 (1986); Board of Education v. Pico,

457 U.S. 853 (1982); Tinker v. Des Moines Independent

Community School District, 393 U.S. 508 (1969). Those

cases make clear that the jurisdictional question in fed-

eral court is whether a local school board “is more like a

county or city than it is like an arm of the State.” Mt.

Healthy City School District v. Doyle, 429 U.S. 274, 280

(1977). That question, in turn, depends on an interpreta-

Act of Feb. 25, 1871, § 2, 16 Stat. 431.

In both Will and Monell, this Court looked to the Dictionary Act

as an important interpretive guide to § 1983.

13

tion of the Eleventh Amendment that may be affected by

C. The Decision Below Is Inconsistent With The History

And Purposes Of § 1983

“A major factor motivating the expansion of federal

jurisdiction through [§ 1983] was the belief of the 1871

‘2 In Mt. Healthy, as in this case, local school boards were deemed

“political subdivisions” of the state. 429 U.S. at 280. However, that

fact was not controlling in Mt. Healthy and should not be controlling

here.

‘3 The complaint in this case does not specifically indicate whether

the individual respondents are being sued in their individual or

official capacities. That is not unusual and should not foreclose recov-

ery if petitioner can show at trial that respondents were personally

liable for any constitutional violations that occurred.

14

Congress that the state authorities had been unable or

unwilling to protect the constitutional rights of individu-

als or to punish those who violated these rights.” Patsy v.

Florida Board of Regents, 457 U.S. 496, 505 (1982). That

distrust was targeted as much at state courts as it was at

state law enforcement. Id. at 506 & n.9. Given this history

it defies commonsense to argue, as respondents must in

this case, that the 42nd Congress intended to defer to the

authority of the states to shield state officials from § 1983

liability through the imposition of state common law

immunities. !4

For reasons this Court discussed at length in Owen,

respondents’ reliance on sovereign immunity is also At

odds with the compensatory purposes of § 1983. If the

sovereign cannot be sued, there will often be no mean-

ingful remedy for those who suffer as a result of the

Imlisuse of power, possessed by virtue of state law and

made possible only because the wrongdoer is clothed with

the authority of state law. . . .” United States v. Classic,

313 U.S. 299, 326 (1941). The fact that the offending officer

can be personally sued does not solve the problem.

“(O}wing to the qualified immunity enjoyed by most gov-

ernment officials, many victims of municipal malfeasance

would be left remediless if the city were also allowed to

observed:

Given the evil at which the federal civil legislation was

aimed, there is no reason to Congress meant

“to provide access to the federal

courts oe eee S eee Se & Se oe

trary,” yet that who to vindicate their

federal in state courts could be to seek redress in

the first from the very state whose hostility to

those rights precipitated their

108 S.Ct. at 2311 (footnote omitted) (citations omitted).

assert a good-faith defense.” Owen, 445 U.S. at 651 (cita-

tion omitted). Here, of course, the problem is magnified

by the absolute immunity that respondents propose for all

government bodies sued in state court.

In addition, it is no answer that petitioner could have

filed his § 1983 action in federal court and avoided the

difficulties that he has encountered in this case. The same

is true every time the state erects a barrier to the vindica-

tion of federal rights in state court. Petitioner had a right

to choose his forum and having chosen state court he had a

right to insist that the state court respect the ultimate

supremacy of federal law, see Martinez v. California,

including the interest in uniformity that this Court has

identified as an important aspect of supremacy under the

civil rights statutes.

“A law that predictably alters the outcome of § 1983

claims depending solely on whether they are brought in

state or federal court is obviously inconsistent with this

federal interest in intra-State uniformity.” Felder, 108

S.Ct. at 2314. Yet, that is precisely the impact of the

immunity rules applied by the court below. Under those

rules, “the outcome of federal civil rights litigation will

frequently and predictably depend on whether it is

brought in state or federal court.” Id. at 2313.'5 Faced

The obverse is equally true, as Felder points out. When federal

courts exercise diversity jurisdiction over state law claims, “the

outcome of the litigation should be substantially the same, so far as

legal rules determine the outcome of a litigation, as it would be if tried

in a State court.” Guaranty Trust Co. v. York, 326 U.S. 99, 109(1945).

Thus, as Felder recognized, the supremacy issue presented by this

case is, in many ways, a reverse Erie problem. 108 S.Ct. at 2313.

Neither Felder nor this case, however, forecioses a state court from

treating § 1983 actions more liberally than a federal court. /d. At the

very least, different policy considerations would apply under those

circumstances. See generally, Herman, supra n.8.

16

with that prospect, the Felder Court held:

Sr

NN

minative law must give way when a party asserts a

federal right in state court.

Id.

This case is governed by the same principle. '®

II. THE DECISION BELOW MUST BE REVERSED EVEN

IF IT IS VIEWED AS A JURISDICTIONAL BAR TO

§ 1983 SUITS IN THE STATE COURTS

As described more fully below, it does not appear that

the Florida courts have declined jurisdiction over § 1983

claims. Rather, it appears that the Florida courts have

decided to entertain only those § 1983 actions that are

deemed compatible with the states own definition of sov-

ereign immunity. Such selective enforcement of federal

law is invalid under Felder and Martinez. It is unneces-

sary, therefore, to reach the question of whether a state

could decline § 1983 jurisdiction entirely. '7 However, even

if this case is approached in jurisdictional terms, the

decision below cannot stand. First, it violates the princi-

ple of nondiscrimination. Second, it reflects a policy dis-

agreement between state and federal law that must be

resolved in favor of the federal interest under the

Supremacy Clause.

A. The Decision Below Does Not, On Its Face, Foreclose

Jurisdiction Over § 1983 Claims

The decision below is hardly a model of clarity. Thus, it

is difficult to say with great assurance how far the sov-

16 For similar reasons, the limits on liability embodied in Fla. Stat.

§ 768.28(5) should be deemed inapplicable in state court § 1983

actions.

17 See Martinez, 444 U.S. at 283 n.7.

17

ereign immunity defense accepted by the court below may

actually extend. For present purposes, it is sufficient to

note that it bars § 1983 suits in state court against cities,

counties and local school boards. So far as one can tell, it

also departs from this Court’s Eleventh Amendment

jurisprudence by barring injunctive relief against state

officials engaged in an ongoing violation of constitutional

rights. See Edelman v. Jordan, 415 U.S. 651 (1974). It

does not, on its face, bar jurisdiction over § 1983 claims.

But it does indisputably foreclose whole categories of

§ 1983 litigation that are routinely prosecuted in the fed-

eral courts.

The justification for this asymmetrical result ostensibly

rests on the decision by the Florida Supreme Court in

Hill v. Dep’t of Corrections, 513 So.2d 129 (1987). In fact,

the immunity principles applied in this case by Florida

intermediate appellate court go far beyond anything Hill

actually decided. The narrow issue in Hill was “whether a

civil rights suit under 42 U.S.C. § 1983 can be brought

against the state and one of its agencies in a Florida

court.” Jd. at 131. Writing prior to Wills holding that

states are not persons under § 1983, Hill analyzed that

question in terms of the state’s traditional sovereign

immunity. In particular, the Hill court found no reason to

believe that the drafters of § 1983 intended the states to

suffer greater liability in state court than federal court.

And since a suit against the state (or one of its agencies)

would be barred in federal court under the Eleventh

Amendment, the Hill court concluded that it was likewise

barred in state court under the doctrine of sovereign

immunity. The court also disposed of the question of

waiver, by stating:

While Florida is at liberty to waive its immunity from

section 1983 actions, it has not done so. The recovery

18

ceilings in section 768.28 were intended to waive

sovereign immunity for state tort actions, not federal

civil rights actions commenced under section 1983.

513 So.2d at 133.18

The careful analogy in Hill between sovereign immu-

nity and the Eleventh Amendment does not on its face

support the ruling below, which extended the concept of

sovereign immunity in § 1983 actions to cities, counties,

and local school boards. Rather, that extension appears to

be based on the lower court’s assumption that the lan-

guage of § 768.28 determines, through negative implica-

tion, the scope of the sovereign immunity defense to a

§ 1983 action in the Florida courts. Because § 768.28

expressly waives the immunity of the state, its agencies,

and “subdivisions,” the court below apparently reasoned

that these same entities are, ipso facto, insulated from

suit in circumstances where sovereign immunity has not

been waived—namely, § 1983 suits. !9

Petitioner recognizes that this Court cannot resolve

disputed questions of state law. Nevertheless, the uncer-

18 The relevant text of Fla. Stat. § 768.28 is set out in the Appendix.

Cf. Florida Dep't of Health and Rehabilitative Services v. Florida

Nursing Home Ass'n, 450 U.S. 147, 150 (1981) (Floridas “general

waiver of sovereign immunity” is not a waiver of its Eleventh Amend-

ment immunity).

1 This has not been the uniform view of the Florida courts. See

e.g., The Franklin County School Board v. Page, 540 So.2d 891 (Ist

DCA 1989) (holding that local government units do not enjoy a

sovereign immunity from § 1983 suits in the state courts); City of

Riviera Beach v. Langevin, 522 So.2d 857 (4th DCA 1988) (same);

Southern Alliance Corp. v. City of Winter Haven, 505 So.2d 484 (2d

DCA 1987) (same). But see Lloyd v. Ellis, 520 So.2d 59 (Ist DCA

1988) (dismissing suit against county sheriff and investigator in their

ficial ities).

— — —

19

tain foundation of the decision below cautions against a

broad reading that would also foreclose, sub silentio,

§ 1983 actions against government officials in their indi-

vidual capacities. Neither Hill nor the decision in this

case addressed that question directly. Under the circum-

stances, it is far more reasonable to assume that peti-

tioners complaint was dismissed in its entirety because

the court below assumed, improperly in our view, that

respondents were sued in their official capacities only.?°

That interpretation would also be consistent with the

decision of other Florida appellate courts that have

capacity suits under § 1983. See Lloyd v. Ellis, 520 So.2d

59, 60 (Ist DCA 1988); Skoblow v. Ameri-Manage, Inc.,

483 So.2d 809 (3d DCA 1986), aff'd on other grounds, 514

So.2d 1077 (1987).2 It is also consistent with the struc-

ture of § 768.28. Under that section of Florida law, govern-

ment employees cannot be sued if a cause of action is

available against their employer. If the government

employer is immune from suit, as the court below held in

this case, then the bar against suing the employee pre-

sumably disappears as well. At the moment, therefore,

the fairest reading of Florida law seems to be that the

state courts remain open to § 1983 suits against individual

officers but closed (at least in the Second District) to

20 See n.3, supra.

21 Even more significantly, the Second District Court of Appeal,

which issued the opinion below, has reviewed other individual capac-

ity suits under § 1983 both before and since this case without relying

on the doctrine of sovereign immunity. See P.C.B. Partnership v. The

City of Largo, 549 So.2d 738 (2d DCA 1989); Carpenter v. City of St.

Petersburg, 547 So.2d 339 (2d DCA 1989); Penthouse, Inc. v. Saba,

399 So.2d 1095 (2d DCA 1981).

20

§ 1983 suits against any governmental body under an

expansive view of sovereign immunity. 2

B. States May Not Enforce Jurisdictional Rules That

Discriminate Against Federal Claims

If construed in jurisdictional terms, the ruling below

represents the starkest example of state discrimination

As explained by the Florida Supreme Court in Hill, the

doctrine of sovereign immunity retains its validity in Flor-

ida only for constitutional torts. 513 So.2d at 132-33. They

alone are barred. For all other torts, the state has waived

its sovereign immunity pursuant to Fla. Stat. § 768. 28.2

The scope of this partial waiver was aptly suramarized

by the Eleventh Circuit in Gamble v. Florida Dep’t of

Health and Rehabilitative Services, 779 F.2d 1509, 1515

(11th Cir. 1986): “We agree . that § 768.28, when

viewed alone, was intended to render the state and its

agencies liable for damages for traditional torts under

state law, but to exclude such liability for ‘constitutional

torts. Five years earlier, the district court was even

22 The Florida courts have also continued to review on the merits

applications for attorney's fees under 42 U.S.C. § 1988. E. g., Stein-

berg v. City of Sunrise, 545 So.2d 424 (4th DCA 1989); Hoffmeister v.

Coler, 544 So.2d 1067 (4th DCA 1989); The Franklin County School

Board v. Page, 540 So.2d 891 (Ist DCA 1989). That response is

inconsistent with the notion that the Florida courts have declined

jurisdiction to hear all § 1983 claims.

23 This discrepancy would not be critical for § 1983 had the doctrine

of sovereign immunity been limited to damage claims against the

state and its agencies. Under those circumstances, the decision in

Hill would have done little more than presage this Court's opinion in

Will. It becomes absolutely critical in light of the lower court's ruling

that the doctrine of sovereign immunity also extends to cities, count-

ies, and local school boards.

21

more explicit in Shinholster v. Graham, 527 F.Supp. 1318,

1332 (N. D. Fla. 1981): The Florida legislature's intent

to limit the waiver of sovereign immunity solely to tort

claims and to the exclusion of federal civil rights suits is

abundantly clear.” As a result, a resident of Florida who is

run over by a police car may sue the city for negligence. A

resident of Florida who is unconstitutionally searched

pursuant to municipal policy has no recourse against the

municipality in the Florida courts.

Such differential treatment of state and federal claims

violates a principle of nondiscrimination that is more than

fifty years old. In McKnett v. St. Louis & S.F. Railway,

292 U.S. 230 (1934), the Alabama courts declined to exer-

cise jurisdiction over an out-of-state accident under the

Federal Employers Liability Act, 45 U.S.C. §51, et seq.,

although foreign corporations were generally permitted

access to the Alabama courts for actions arising under the

laws of other states. This Court reversed in an opinion

written by Justice Brandeis:

Laie Congvess hes nat attempted to compe | states

to provide courts for the enforcement of the Federal

— Liability Act, the Federal Constitution

brought

denial of jurisdiction by the

Alabama court is based solely upon the source of law

be enforced. The plaintiff is cast out

is suing to enforce a federal act. A state

292 U.S. at 233-34 (citations omitted).

The Court reached a similar conclusion in Testa v. Katt,

330 U.S. 386 (1947). The plaintiff in Testa brought suit in

the Rhode Island state courts to recover the purchase

22

price of an automobile that was above and beyond the

wartime price controls set by the Emergency Price Cun-

trol Act. The trial court awarded treble damages plus

attorney's fees. The Rhode Island Supreme Court, how-

ever, concluded that it lacked jurisdiction to enforce the

“penal” statutes of a “foreign government” notwithstand-

ing the fact that similar statutes enacted by Rhode Island

were routinely enforced in its state courts. Once again,

this Court disagreed:

It is conceded that this same type of claim arising

under Rhode Island law would be enforced by that

rae nat Thus the Rhode Island courts have

jurisdiction ropriate estab-

local ud ee action. Under these

circumstances the State courts are not free to refuse

enforcement of petitioners’ claim.

Id. at 394 (footnotes omitted). ?“

Most recently, in Felder, the discriminatory impact of

Wisconsin notice of claim provision was cited by the

Court as one of the reasons for its invalidity. 108 S.Ct. at

2308. The discrimination there was not against federal

claims per se; rather, it was a discrimination in favor of

governmental defendants who, the Court noted, were

“the very persons and entities Congress intended to sub-

ject to liability” through § 1983. Jd. at 2310. “This defend-

ant-specific focus of the notice requirement,” the Court

wrote, “serves to distinguish it, rather starkly, from rules

uniformly applicable to all suits.” Id.

The discrimination in this case suffers the worst defects

of McKnett and Testa, on the one hand, and Felder, on the

24 The holding in Testa was expressly reaffirmed in Federal Energy

Regulatory Commission (FERC) v. Mississippi, 456 U.S. 742, 760

(1982).

ee ee

23

other. Like McKnett and Testa, the ruling below carves an

exception from the general jurisdiction of the state courts

that only applies to certain federal claims. And like Fel-

der, the ruling below insulates from liability the very

defendants that § 1983 was designed to reach. Neither

discrimination is valid; both together are fatal to Floridas

scheme.

C. States May Not Enforce Jurisdictional Rules That

Reflect A Substantive Disagreement With Policies

Inherent In Federal Law

A state’s obligation to enforce federal law does not end

with nondiscrimination. Although this Court has never

definitively resolved whether a state must exercise the

concurrent jurisdiction granted by § 1983,25 the princi-

ples governing that judgment are well-established.

Absent a “valid excuse,” Florida may not decline to hear

federal claims because it regards its own state interests as

superior to federal law.26 And a states substantive dis-

agreement with federal law does not represent a “valid

excuse. 27

These benchmarks were most clearly set forth in Mon-

dou v. New York, N. H. & H. Railroad, 223 U.S. 1 (1912).

The Connecticut courts in that case had refused to accept

25 See Maine v. Thiboutot, 448 U.S. at 3 n. I: Martinez v. Califor-

nia, 444 U.S. at 283 n.7.

26 See Bator, Meltzer, Mishkin & Shapiro, Hart and Wechsler’s

Federal Courts and the Federal System 499 (1988).

27 Steinglass, supra, at § 9.3(c). Applying these rules, many com-

mentators have concluded that the states are required to hear § 1983

claims. E. g., Gordon & Gross, “Justiciability of Federal Claims in

State Court,” 59 Notre Dame L. Rev. 1145, 1156-71 (1984); Neuborne,

“Toward Procedural Parity in Constitutional Litigation,” 22 Wm. &

Mary L. Rev. 725, 759-66 (1981).

24

jurisdiction over FELA claims on the ground that the

theory of liability embodied in the Act was inconsistent

with state policy and that, as a result, it would be con-

fusing for state judges to apply two different theories of

liability depending on whether a state or federal claim was

advanced. In an era when the theory of coordinate sov-

ereignty still carried force, see Kentucky v. Dennison, 65

U.S. 66 (1861), this Court nonetheless rejected Connecti-

cut’s approach:28 .

The suggestion that the act of Congress is not in

harmony with the 1 of the state, and therefore

that the courts of the state are free to deeline juris-

diction, is quite inadmissible, because it presup

what in legal contemplation does not exist. When

Co in the exertion of the power confided to it

by the Constitution, adopted that act, it spoke for all

the — and all the states, and thereby established

a policy for all. That policy is as much the policy of

Connecticut as if the act had emanated from its own

legislature, and should be respected accordingly in

the courts of the state.

223 U.S. at 57.29 Thus, the Court concluded: “The exis-

tence of the jurisdiction creates an implication of duty to

exercise it, and that its exercise may be onerous does not

militate against that implication.” Jd. at 58.

General Oil Co. v. Crain, 209 U.S. 211 (1908), reflects a

similar view. Indeed, it is perhaps even more directly on

28The theory of coordinate sovereignty held that states heard

federal actions solely as a matter of comity. It was expressly rejected

in FERC v. Mississippi, 456 U.S. at 763 n.28.

2% See also Claflin v. Houseman, 93 U.S. 130, 136 (1876) (federal

and state governments may be distinct sovereignties but that “is no

reason why the State Courts should not be open fo: the prosecution of

rights growing out of the laws of the United States, to which their

jurisdiction is competent, and not denied”).

25

point because, like the present case, it involved the asser-

tion of sovereign immunity as a basis for declining state

jurisdiction over a federal constitutional claim. The issue

arose in a suit seeking to enjoin Tennessee officials from

collecting a local tax that plaintiff contended impermissi-

bly burdened interstate commerce. The validity of the tax

was ultimately upheld. But in an opinion issued on the

same day as Ex Parte Young, 209 U.S. 123 (1908), this

a eee sovereign immunity

If a suit against state officers is precluded in the

national courts by the 11th Amendment to the Con-

stitution and may be forbidden by a state to its

courts, as it is contended in the case at bar that it may

be, without of review by this court, it must be

evident an easy way is open to prevent the

enforcement of many provisions of the Constitution;

and the 14th Ame t, which is directed at state

action, could be nullified as to much of its operation.

209 U.S. at 226.30

Here, the only plausible justification for Florida use of

an expansive sovereign immunity defense to bar peti-

tioner’s § 1983 claim is that Florida disagrees with the

federal policy decision to make local governments liable

for the constitutional violations their policies create. Fel-

der provides the short answer to that objection:

The decision to yo — state subdivisions to liability

for violations of federal rights . . . was a choice that

Congress, not the [Florida] legislature, made, and it

0 Crain cannot be dismissed as a case in which no forum would

have been available if the state courts were closed. The Court's

simultaneous decision in Ex Parte Young assured that the federal

courts would be available to hear constitutional claims against state

officials.

is a decision that the State has no authority to over-

ride. Thus, however understandable or laudable the

States interest in controlling liability 1

— be, it is r

mentary geen os lation, as are

2— has chosen to e

108 S.Ct. at 2309.

In fact, this is a more compelling case than Felder since,

in Felder, it was at least theoretically possible to have a

§ 1983 claim heard in its entirety in the state courts so long

as one complied with the notice of claim provisions. That

possibility did not exist for petitioner in this case. The

invalidity of such a total ban was therefore assumed in

Felder, when the Court said:

States. . may no more condition the federal right to

recover for violations of civil rights than bar that

where the purpose and effect of those conditions,

when applied in § 1983 actions, is to control the

expense associated with the very litigation Congress

has authorized.

Id. at 2309-10 (citation omitted) (emphasis added).

Moreover, this is not a context in which the Court need

or should search for a “clear statement” from Congress

before insisting that Florida exercise its jurisdiction over

petitioner's § 1983 claim. The “clear statement” rule was

developed by this Court in Eleventh Amendment cases.

See Atascadero State Hospital v. Scanlon, 473 U.S. 234,

242 (1985). It is not the test that this Court has used in

allocating jurisdiction between the federal and state

27

courts,*! or in deciding which attributes of a federal cause

of action apply in state court. Nor does this case present

the sort of legal issue that alterſs] the ‘usual constitu.

tional balance between the States and the Federal Gov-

ernment.’” Will, 109 S.Ct. at 2308 (citation omitted). The

Court resolved in Monell that local governments are ame-

nable to suit under § 1983. Given that holding, respond-

ents’ jurisdictional objection to enforcing Monell in the

state courts must now be assessed in terms of its com-

patibility with the remedial purposes of § 1983. The de-

thus discounted entirely the federal interest in uniform

application of § 1983. It is not surprising that this dis-

torted calculus led the court below to the erroneous con-

clusion that each state is free, as a matter of state law, to

determine whether local governments are protected by

sovereign immunity from a § 1983 action in the state

courts.

Finally, the decision below overlooks the important

policy reasons supporting state jurisdiction over § 1983

claims. In part, those reasons are related to caseload.

Without an available state forum, civil rights plaintiffs

“would have no choice but to bring their complaints con-

cerning state actions to federal courts.” Maine v.

Thiboutot, 448 U.S. at 11 n. 12. But, far more impor-

31 See Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 477-78

(1981) (federal courts do not have exclusive jurisdiction over personal

injury actions arising under the Outer Continental Shelf Lands Act).

* See Dice v. Akron, Canton & Youngstown Railroad Co., 342

U.S. 359 (1952) (jury's factfinding role in FELA action brought in

state court is governed by federal law).

33 Although there are no precise statistics, most commentators

agree that the number of state court § 1983 actions has increased

dramatically in recent years. See Steinglass, “The Emerging State

Court § 1983 Action: A Procedural Review,” 38 Miami L.Rev. 381

(1984).

25

tantly, state court § 1983 actions offer one way to ensure

that the enforcement of federal constitutional rights will

be seen, and acted upon, as a shared responsibility of the

states and national government. For civil rights plaintiffs,

the benefits of that system of shared responsibility are

perhaps obvious. However, it is equally beneficial for the

states themselves since it provides a mechanism through

which the constitutional misdeeds of local officials can be

corrected without the intervention of the federal courts.

In so doing, § 1983 furthers the broadest principles of

federalism that would be seriously disserved if states

could effectively opt out of any meaningful role in consti-

tutional review.

CONCLUSION

For the reasons stated herein, the judgment below

should be reversed and remanded for further proceed-

ings.

Respectfully submitted,

GARDNER W. B&ckETT, JR.

(Counsel of Record)

Nelson, Beckett & Nelson

123 Eighth Street North

St. Petersburg, Florida 33701

(813) 822-4084

STEVEN R. SHAPIRO

American Civil Liberties Union Foundation

132 West 43 Street

New York, New York 10036

(212) 944-9800

STEVEN H. STEINGLASS

c/o Cleveland-Marshall College of Law

Cleveland State University

Cleveland, Ohio 44115

(216) 687-2344

January, 1990

E ee ele IR et i TY alla

~ = ’

L

n ene ee en! a

la

APPENDIX

CONSTITUTIONAL AND STATUTORY PROVISIONS

Article VI of the United States Constitution provides, in

relevant part:

This Constitution, and the Laws of the United States

which shall be made in Pursuance thereof; and all

Treaties made, or which shall be made, under the

Authority of the United States, shall be the supreme

Law of the Land; and the J ges in every State shall be

bound thereby, be 47 Constitution or Laws of

any State to the Contrary notwithstanding.

42 U.S.C. § 1983 provides, in relevant part:

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects or causes

to hones oy canes United or other

caused b — t or .

an 22 agency or subdivision while acting

within the scope of his office or e nt under cir-

cumstances in which the state or or subdivi-

prosecuted subject to the limitations in this act. Any

such action may be brought in the county where the

2a

roperty in litigation is located or, if the affected agency

— | 1s an office in such county for the trans-

action of its customary business, where the cause of

action accrued.

Is used in this act, “state agencies or subdivi-

ne 6 5 eee te Anders

judicial branch (i i i ,

1 t establishments of the state; count-

ies and municipalities; and corporations primarily act-

ing as instrumentalities or agencies of the state,

counties, or munici

R * * *

(5) The state and its agencies and subdivisions shall

be liable for tort claims in the same manner and to the

same extent as a private individual under like circum-

i

7

5

8

1

88

E

8

8

.

ure, but de paid in or in whole only by

fx dt the Legislature. Notwithstanding the

limited waiver of sovereign immunity provided herein,

the state or an age e

within the limits of insurance ed, to

settle a claim made or a judgment red it

without further action by the Legislature, but the state

3a

whether or not the state or its agencies or subdivisions

possessed sovereign immunity before July 1, 1974.

R „ „ & &

(9a) No officer, e , or agent of the state or of

any of its subdivisions be held personally liable in

bad faith or with -r 74 — or in a manner

exhibiting wanton and willful disregard of human

rights, safety, or * However, such officer,

employee, or agent be considered an adverse wit-

ness in a tort action for any injury or suffered as

a result of any act, event, or omission of action in the

scope of his employment or function. The exclusive

remedy for injury or damage suffered as a result of an

act, event, or omission of an officer, employee, or agent

of the state or any of its subdivisions or constitutional

officers shall be by action against the rnmental

entity, or the head of such entity in his ial capacity,

or the constitutional officer of which 2

employee, or agent is an employee, unless act or

omission was committed in bad faith or with malicious

or in a manner exhibiting wanton and willful

of human rights, „or The state

22 Ge es So Eto ta Cert ome

or omissions of an officer, employee, or agent commit

while acting outside the course and of his employ-

ment or committed in bad faith or with malicious pur-

pose or in a manner exhibiting wanton and willful

disregard of human rights, safety, or property.

R KX „ „*

(16) No provision of this section, or of any other

section of the Florida Statutes, whether read separately

or in junction with any other ision, shall be

to waive the immunity of the state or any of its

agencies from suit in federal court, as such immunity is

guaranteed by the Eleventh Amendment to the Consti-

tution of the United States, unless such waiver is

explicitly and definitely stated to be a waiver of the

immunity of the state and its agencies from suit in