Amicus Curiae Brief — Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank

Supreme Court, La |

FIT LED

| MAR 23 1999 |

No. 98-531

_ THE CLERK

ee

IN THE

Supreme Court of the United States

OCTOBER TERM, 1998

FLORIDA PREPAID POSTSECONDARY

EDUCATION EXPENSE BOARD,

Petitioner,

v.

COLLEGE SAVINGS BANK,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Federal Circuit

BRIEF OF AMICUS CURIAE

ASSOCIATION OF AMERICAN RAILROADS

IN SUPPORT OF RESPONDENTS

Betty JO CHRISTIAN

Counsel of Record

SHANNEN W. COFFIN

STEPTOE & JOHNSON LLP

1380 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 429-8113

Counsel for Amicus Curiae

WILSON - Eres PRINTING Co.. Inc. - 789-0096 - WasHINGTon. D.C. 20001

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF THE AMICI

SUMMARY OF ARGUMENT

ARGUMENT

I. THE PATENT REMEDY ACT IS A PROPOR-

TIONATE RESPONSE TO POTENTIAL DEP-

RIVATIONS OF DUE PROCESS BY THE

STATES

A. The Patent Remedy Act May Be Regarded

as Section 5 Enforcement Legislation

B. The Patent Remedy Act Is a Proportionate

Response to the Perceived Constitutional

Threat

PETITIONER CORRECTLY CITES SECTION

806 OF THE 4-R ACT AS AN EXAMPLE OF

A PROPER CONSTITUTIONAL ABROGA-

TION OF STATE SOVEREIGN IMMUNITY.

CONCLUSION

ii

TABLE OF AUTHORITIES

CASES Page

Allegheny-Pittsburgh Coal Co. »v. County Comm'n,

OS UR. 808 (2000) ee . 21

City of Boerne v. Flor » 521 U.S. 507, 117 S. Ct

meng seal LE LE la passim

City of Mobile v. Bolden, 446 U.S. 55 (1980) _.. 9

City of Rome v. United States, 446 U.S. 156

Sn one ne PRD SR I Sy 4" Se 7,8

Civil Rights Cases, 109 U.S. 8 | REET Soe 15

College Sav. Bank v. Florida Prepaid Postsecond-

CE, BODB) aanseeniesittniniinen tig A 17

EEOC »v. Wyoming, 460 U.S. 226 Ce oe > 13

Employment Div., Dep't of Human Resources Ore-

gon v. Smith, 496 U.S. 872 pla 6,10

Ex parte Virginia, 100 U.S. 839 (1879) 6

Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S.

wri Sh ae NT LETT UG I 7

Katzenbach v. Morgan, 884 U.S. 641 (1966)... passim

(1888) rseenreernerean I Ont 1l

Oregon Short Line R.R. v. Department of Revenue

Oregon, 189 F.8d 1259 9th Cir. 1998)... 8, 20

Seminole Tribe of Florida v Florida, 517 U.S. 44

ty ere ae eA eg 5

United States v. Harris, 106 U.S. 629 (1883)... 16

United States v. Uvalde Consol. Indep. Sch. Dist.,

625 F.2d 547 (5th Cir. 1980), cert. denied, 451

U.S. 1002 (1981) , 21

Wheeling & Lake Erie Ry. v. Public Util. Comm’n

of Pa., 141 F.8d 38 (8d Cir. 1998) 3,19

Wilson-Jones v. Caviness, 107 F.8d 358 (6th Cir.

RT) acne cenensnnstie SL 16, 21

CONSTITUTIONS

Federal

U.S. Const. amend. XIV, §6 2. am --.. passim

U8. Const. ort 1, 68,0 38s 5

iii

TABLE OF AUTHORITIES—Continued

Page

State

W. Va. Const.art.VI,§36.00000000 | 13

STATUTES

Federal

35 U.S.C. §§ 284-85. i 17

., “Oa ae passim

ILE passim

Pub. L. No. 94-210, § 306 (2), 90 Stat. 31 (1976) 21

State

Colo. Rev. Stat. Ann. A 14

Colo. Rev. Stat. Ann. ESE 14

Conn. Gen. Stat. Ann. § 48-17b... 15

Del. Code § 4001(1)-(2) ieee 15

Ga. Code Ann § 50-21-24 (1)-(2) it ee 15

Haw. Rev. Stat. Ann. & a 15

Ind. Code § 34-13-3-3 (6), EEG a 15

Md. Code Ann., Cts. & Jud. Proc. § 5-522(a\(5). 14

Me. Rev. Stat. tit. i 14

Me. Rev. Stat. tit. 14, § 8104-A ts no 14

Minn. Stat. Ann.§8.786..0.00000 15

Miss. Code Ann. § 43-87-90... 15

N.C. Gen. Stat. § SESS ES - 15

N.C. Gen. Stat. median 15

Tenn. Code Ann. § eae 15

Tenn. Code Ann. § 29-20-205...0 = = = 15

W Va. Code Ann.§29-12A4.000000220 14

Wyo. Stat. Ann. § 1-26-5160 = 14

Wyo. Stat. Ann. $8 1-89-104 through112... 14

LEGISLATIVE MATERIALS

Cong. Globe, 42nd Cong., Ist Sess App. 83 (1871). 5

S. Rep. No. 630, 91st Cong., Ist Sess. 3 (1969). _ 20

MISCELLANEOUS

ies 2

IN THE

Supreme Court of the United States

OcTOBER TERM, 1998

No. 98-531

FLORIDA PREPAID POSTSECONDARY

EDUCATION EXPENSE BOARD,

¥. Petitioner,

COLLEGE SAVINGS BANK,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Federal Circuit

BRIEF OF AMICUS CURIAE

ASSOCIATION OF AMERICAN RAILROADS

IN SUPPORT OF RESPONDENTS

INTEREST OF THE AMICI

The Association of American Railroads (“AAR”), a

railroad-industry trade association, respectfully submits

this brief as amicus curiae in support of respondent Col-

lege Savings Bank (“CSB”), in order to reinforce the con-

1 Pursuant to Supreme Court Rule 37.6, amicus curiae states that

no counsel for any party to this dispute authored this brief in

whole or in part and no person or entity, other than amicus

and its members, made a monetary contribution to the

or submission of this brief. All parties have consented to AAR

filing in letters on file with the Office of the Clerk of this Court.

|

2

Stitutionality of the Patent and Plant Variety Protection

Remedy Clarification Act’s federal judicial remedy against

the States, see 35 U.S.C. § 296 (1994) (“Patent Remedy

Act”), and, more generally, to emphasize the importance

of broad judicial deference to legislation abrogating state

sovereign immunity through Congress’s exercise of its

power to enforce the substantive protections of the Four-

teenth Amendment. See U.S. Const. amend. XIV, § 5.

Although AAR and its members? do not have an im-

mediate interest in the availability of relief under the Pa-

tent Remedy Act, they have a substantial interest in the

principles underlying the decision of the U.S. Court of

Appeals for the Federal Circuit in this case, particularly

with respect to its application of City of Boerne v. Flores,

521 U.S. 507, 117 S. Ct. 2157 (1997), and the determina-

tion of the scope of congressional legislative authority

under the Enforcement Clause of the Fourteenth Amend-

ment. AAR’s interest in these issues arises from its mem-

bers’ frequent reliance on Section 306 of the Railroad Re-

vitalization and Regulatory Reform Act (“4-R Act”), 49

U.S.C. § 11501 (Supp. I 1995), which permits railroads to

sue states in federal court to enjoin state taxation practices

that invidiously discriminate against the railroad industry.

Following this Court’s decision in City of Boerne, two

federal courts of appeals, applying the principles of that

case, have concluded that, in enacting Section 306, Con-

2 AAR is a voluntary, incorporated association of railroads oper-

ating in the United States, Canada and Mexico. Its members em-

ploy the substantial majority of railroad workers, operate a sub-

stantial majority of the linehaul mileage and account for virtually

all of the freight revenues of all U.S. railroads. AAR frequently

represents its member railroads before this Court (see, e.g., El

Paso Natural Gas Co. v. Neztsosie, No. 98-6, Brief of Amicus Curiae

AAR), lower courts, Congress and regulatory agencies and tribunals

when matters of common concern are at issue.

3

gress properly abrogated the States’ sovereign immunity

from suit in federal court pursuant to a valid exercise of

its Fourteenth Amendment enforcement power. See Ore-

gon Short Line R.R. v. Department of Revenue Oregon,

139 F.3d 1259 (9th Cir. 1998); Wheeling & Lake Erie

Ry. v. Public Util. Comm’n of Pa., 141 F.3d 88 (3d

Cir. 1998). AAR, on behalf of the railroad industry,

has an important and ongoing stake in ensuring that the

federal judicial remedies enacted by Congress in Section

306 of the 4-R Act are not lost to the industry. It thus

writes today to oppose the erosion of Congress’s authority

to deter and to remedy perceived violations of the Four-

teenth Amendment advocated by the petitioners here and

to ensure that the deferential principles of City of Boerne

are properly applied in the context of this dispute.

SUMMARY OF ARGUMENT

The Federal Circuit properly held that the Patent Rem-

edy Act effects a valid abrogation of state sovereign im-

munity pursuant to the Fourteenth Amendment. In order

to find that Congress has enacted “appropriate” legisla-

tion to enforce the Fourteenth Amendment, this Court

asks two relevant questions. First, the Court examines

whether the legislation may be regarded as an enactment

to enforce the substantive protections of the Amendment

—that is, whether the ends sought to be accomplished by

the legislation are legitimate under the Fourteenth Amend-

ment. See Katzenbach v. Morgan, 384 U.S. 641, 651

(1966); City of Boerne v. Flores, 117 S. Ct. 2157, 2164

(1997).

3 This Court has pending before it two petitions for certiorari to

review a decision of the Ninth Circuit, which applied the rule of

Oregon Short Line R.R. to enjoin discriminatory taxation practices

by the State of California. See State Bd. of Equalization Cali-

fornia v. Southern Pac. Transp. Co., No. 98-584 (petition filed Oct.

5, 1998); State Bd. of Equalization California v. Atchison, Topeka

& Santa Fe Ry., No. 98-1448 (petition filed Mar. 12, 1999).

4

Once legislation crosses this initial threshold, Congress

may enact remedial !egislation that prohibits not only un-

constitutional, but also otherwise constitutional, state ac-

tion. City of Boerne, 117 S. Ct. at 2162. The permissi-

bility of such legislation is measured by a proportionality

standard: “[t}here must be a congruence and proportion-

ality between the injury to be prevented or remedied and

the means adopted to that end.” /d. at 2164. So long as

the congressional response to the constitutional threat is

proportionate, the legislation is permissible under the En-

forcement Clause of the Fourteenth Amendment.

The Patent Remedy Act meets this two-part City oj

Boerne standard. The ends served by the legislation are

legitimate. The Patent Remedy Act targets state depriva-

tion of property without due process. In enacting the Act,

Congress could have concluded that patent holders were

not afforded adequate remedies by each of the States for

the infringement of their rights. Indeed, several states pro-

vided little or no remedy whatsoever for state patent in-

fringements. Thus, Congress had the power to enact legis-

lation to prevent these unconstitutional deprivations.

Moreover, the Patent Remedy Act is a proportionate re-

sponse to this constitutional threat. As applied-in the

majority of cases, the Act is designed to do nothing more

than compensate patent holders for state infringement of

their protected property interests.

Consequently, Congress’s exercise of its enforcement

power is entitled to deference in this Court. It should be

upheld as “appropriate” legislation under Section 5 of the

Fourteenth Amendment.

ae

5

ARGUMENT

I. THE PATENT REMEDY ACT IS A PROPORTION-

ATE RESPONSE TO POTENTIAL DEPRIVATIONS

OF DUE PROCESS BY THE STATES

After this Court's decision in Seminole Tribe of Florida

v. Florida, 517 U.S. 44 (1996), congressional power to

abrogate the States’ sovereign immunity from suit in fed-

eral court is limited to legislation enacted under Section 5

of the Fourteenth Amendment (“Section 5”). Section 5

authorizes Congress “to enforce, by appropriate legisla-

tion, the provisions of this article.” U.S. Const. amend

XIV, § 5. Unquestionably encompassed within this con-

gressional authority is the power to enforce the Amend-

ment’s guarantee of due process of law: “The ‘provisions

of this article,’ to which § 5 refers, include the Due Proc-

ess Clause of the Fourteenth Amendment.” City of

Boerne, 117 S. Ct. at 2163; see also Cong. Globe, 42nd

Cong., Ist Sess. App. 83 (1871) (“The fourteenth amend-

ment closes with the words, ‘the Congress shall have power

to enforce, by appropriate legislation, the provisions of

this article’-—the whole of it sir; all the provisions of

the article; every section of it.”) (statement of Rep.

Bingham).

This Court has long viewed Congress’s power under

the enforcement clauses of the Civil War Amendments as

equally broad as congressional authority under the Nec-

essary and Proper Clause of Article I, § 8, cl. 18. See

Katzenbach v. Morgan, 384 U.S. at 650. Shortly after

the adoption of the Amendment, the Court explained the

scope of congressional authority thereunder:

Whatever legislation is appropriate, that is, adapted

to carry out the objects the amendments have in

view, whatever tends to enforce submission to the

prohibitions they contain, and to secure to all per-

6

sons the enjoyment of perfect equality of civil rights

and the equal protection of the laws against State

denial or invasion, if not prohibited, is brought with-

in the domain of congressional power.

Ex parte Virginia, 100 U.S. 339, 345-46 (1879); see also

City of Boerne, 117 S. Ct. at 2165.

The standard applied by the Court in determining

whether legislation is “appropriate” under Section 5 was

explained in Katzenbach v. Morgan, 384 U.S. at 651, and

later refined in City of Boerne, 117 S. Ct. at 2164. The

Court asks three questions in order to gauge whether

legislation is “appropriate” under Section 5. First, the

Court asks whether the legislation “may be regarded as

an enactment to enforce” a substantive provision of the

Fourteenth Amendment, such as the Equal Protection

Clause or Due Process Clause. 384 U.S. at 651. Second,

the Court inquires “whether it is ‘plainly adapted to that

end.’” Jd. (citation omitted). Finally, the Court asks

whether the legislation “is not prohibited by but is con-

sistent with the ‘letter and spirit of the constitution.’” Jd.

(footnote and citation omitted).

City of Boerne illuminated these standards. There, the

Court considered whether Congress has the power to sub-

ject the States to the Religious Freedom Restoration Act

(“RFRA”) under Section 5. Congress enacted RFRA in

response to this Court’s decision in Employment Div.,

Dept. of Human Resources Oregon v. Smith, 494 US.

872 (1990), which held that laws of general applicability

may incidentally burden religious practices even when not

supported by a compelling governmental interest. City

of Boerne, 117 S. Ct. at 2161. In RFRA, Congress

drastically altered the governing standard, instead requir-

ing that, where a generally-applicable law places a sub-

stantial burden on the free exercise of religion, that law

ee

7

may survive only if justified by a compelling governmental

interest and narrowly tailored to that interest. /d. at

2162.

The Court held that RFRA could not be justified as

“appropriate” enforcement legislation under Section 5. In

doing so, it expounded on the nature of Congress’s

“broad” power under that provision. See id. at 2163. In

order to cross the initial threshold of permissibility under

Section 5, legislation must “enforce” the provisions of the

Fourteenth Amendment. /d. at 2164. “The Court has

described this power as ‘remedial.’” Jd. That does not

mean, however, that Congress is limited to enacting legis-

lation that targets only state action previously found un-

constitutional by the courts. See, e.g., City of Rome v.

United States, 446 U.S. 156, 210 (1980) (“It has never

been seriously maintained, however, that Congress can do

no more than the judiciary to enforce the Amendments’

commands.”) (Rehnquist, J., dissenting). Importantly,

the City of Boerne Court reasoned that Congress may

sweep broader than simply remedying judicially-adjudged

violations of the Fourteenth Amendment:

Legislation which deters or remedies constitutional

violations can fall within the sweep of Congress’ en-

forcement power even if in the process it prohibits

conduct which is not itself unconstitutional and in-

trudes into “legislative spheres of autonomy previ-

ously reserved to the States.”

Id. at 2163 (citation omitted). Thus, so long as the

legislation targets some category of unconstitutional state

action, it may in the course of prohibiting that conduct

also prohibit some degree of otherwise constitutional con-

duct. See also Idaho v. Coeur d'Alene Tribe of Idaho,

521 U.S. 261, 279 (1997) (“Congress pursuant to its

§ 5 remedial powers under the Fourteenth Amendment

may abrogate sovereign immunity, even if the resulting

legislation goes beyond what is constitutionally necessary

ode

City of Boerne’s recognition that “enforcement” legis-

lation may sweep broader than the underlying violation

sought to be remedied simply reiterated the Court's

conclusion in prior Section 5 cases. In Katzenbach v.

Morgan, the Court upheld as a valid exercise of the

enforcement power legislation that banned English literacy

requirements for voting in federal, state and local elec-

tions, despite its previous holding in Lassiter v. Northamp-

ton Election Bd., 360 U.S. 45 (1959), that a state could

impose a literacy requirement without running afoul of

the Equal Protection Clause of the Fourteenth Amend-

ment. Morgan, 384 U.S. at 649. The Morgan Court rea-

soned that Lassiter was “inapposite” to the “question be-

fore us here: Without regard to whether the judiciary

would find that the Equal Protection Clause itself nullifies

New York’s English literacy requirement as so applied,

could Congress prohibit the enforcement of the state law

by legislating under § 5 of the Fourteenth Amendment.”

Id. Again, in City of Rome, the Court upheld under the

Enforcement Clause of the Fifteenth Amendment congres-

sionally mandated preclearance procedures for state and

local voting practices that targeted, inter alia, practices

that were discriminatory in effect. 446 U.S. at 177.* The

Court reached this conclusion despite its prior indications

that the Fifteenth Amendment prohibits only intentional

discrimination. See 446 U.S. at 177 (“[Wle hold that the

*The Court has frequently stated that Congress’s power to

enforce the substantive protections of the Fifteenth Amendment

is coextensive with its Fourteenth Amendment enforcement power.

See, e.g., Lopez v. Monterey County, 119 S. Ct. 698, 709 n.6 (1999)

(Thomas, J. dissenting) (citations omitted); see also City of

Boerne, 117 S. Ct. at 2163 (discussing Fifteenth Amendment ju-

risprudence in context of determining scope of Fourteenth Amend-

ment enforcement power ).

ee

9

Act’s ban on electoral changes that are discriminatory in

effect is an appropriate method of promoting the purposes

of the Fifteenth Amendment, even if it is assumed that

§ 1 if the Amendment prohibits only intentional discrimi-

nation in voting.”); see also City of Mobile v. Bolden,

446 U.S. 55, 66-69 (1980) (opinion of Stewart, J.); id.

at 94 (opinion of White, J.). In each case, the Court

upheld the legislation because Congress could conclude

that, under certain circumstances, the state conduct pro-

hibited would be deemed unconstitutional. See City of

Boerne, 117 S. Ct. at 2167, 2168.°

Consequently, after Boerne, Morgan's threshold deter-

mination of whether legislation “may be regarded as an

enactment to enforce” the Fourteenth Amendment does

not require a pre-enactment ruling that all of the practices

prohibited by the legislation are unconstitutional, Rather,

it merely requires that the legislation, as applied in some

circumstances, would reach some subset of state conduct

that likely would be unconstitutional. “Preventive meas-

ures prohibiting certain types of laws may be appropriate

when there is reason to believe that many of the laws

affected by the congressional enactment have a significant

likelihood of being unconstitutional.” City of Boerne,

117 S. Ct. at 2170 (emphasis added). In that case, legis-

lation will have crossed the Section 5 threshold and may

be regarded as enforcement legislation.

5 The Boerne majority did not invalidate RFRA on the grounds

that the proffered justification for the statute—preventing state ac-

tion that are “enacted with the unconstitutional object of targeting

religious beliefs and practices,” 117 S. Ct. at 2168—did not satisfy

Morgan's first inoniry. Rather, it apparently assumed, arguendo,

that this perceived constitutional threat would permit Congress to

enact legislation as a threshold matter. RFRA ultimately failed

constitutional scrutiny, however, because it was a drastically dis-

proportionate response to this legitimate constitutional threat. See

discussion infra at 10-11.

10

That does not end the inquiry, however. Where the

scope of legislation is not confined to that limited subset

of unconstitutional state conduct but also prohibits other-

wise constitutional state action, Section 5 does not rigidly

demand invalidation. In those circumstances, City of

Boerne looked to the second leg of the Morgan test—

proportionality—to determine the legislation’s validity. In

order to fall squarely within the enforcement power,

“[t]here must be a congruence and proportionality be-

tween the injury to be prevented or remedied and the

means adopted to that end.” City of Boerne, 117 S. Ct.

at 2164. As part of that inquiry, the Court examines the

scope of the legislation and the qualifications and limita-

tions placed upon its applicability by Congress. If suffi-

ciently restricted in scope, application or remedy, legisla-

tion may be valid even if it “pervasively prohibits con-

Stitutional state action in an effort to remedy or prevent

unconstitutional state action... .” Jd. at 2170 (emphasis

added).

Applying this proportionality test, City of Boerne held

that RFRA fell well short of a proportionate response to

the perceived threat of generally applicable laws passed

because of religious bigotry. The law's “[s]weeping cover-

age ensures its intrusion at every level of government, dis-

placing laws and prohibiting official actions of almost

every description and regardless of subject matter.” /d.

The law had no limitations whatsoever on its applicability,

and it subjected state laws to the most “stringent” of con-

stitutional standards—strict scrutiny. Jd. at 2171. Con-

sequently, the Court concluded that “[t]he substantial

costs RFRA exacts, both in practical terms of imposing

a heavy litigation burden on the States and in terms of

curtailing their traditional general regulatory power, far

exceed any pattern or practice of unconstitutional conduct

— the Free Exercise Clause as interpreted by Smith.”

il

in this case, the relevant Morgan/City of Boerne tests

for determining “appropriateness” demonstrate that the

congressional abrogation of state sovereign immunity ef-

fected by the Patent Remedy Act is valid. First, the legis-

lation “may be regarded as an enactment to enforce” the

Due Process Clause because it targets, inter alia, those

states that fail to provide a remedy for state patent in-

fringement. Second, it is a proportionate response to the

perceived constitutional threat—deprivations of due proc-

ess by the States.®

A. The Patent Remedy Act May Be Regarded as Sec-

tion 5 Enforcement Legislation

In determining the validity of a particular abrogation

of state sovereign immunity, the threshold inquiry is

whether the Act may be regarded as “enforcement” legis-

lation, that is, whether the “end” sought by the legislation

is “legitimate.” See Morgan, 384 U.S. at 650 (quoting

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421

(1819)). This inquiry requires the Court to examine all

of the potential applications of the legislation and ask

whether, in any circumstances, the law targets state con-

duct or laws that “have a significant likelihood of being

unconstitutional.” City of Boerne, 117 S. Ct. at 2170.

Petitioner would ask a different question. It argues

that the Patent Remedy Act cannot be deemed appro-

priate under the Enforcement Clause because it does not

target unconstitutional state action in this case. That is,

because Florida courts allegedly provide a remedy for

patent infringement, patent holders cannot argue that they

6 Of course, in every case, the Court must also consider Morgan's

third test: whether the law is otherwise consistent with the letter

and spirit of the constitution. In this case, there are no serious

claims apart from the Section 5 challenge that Congress’s power to

enact patent laws is inconsistent with the constitution. Thus, this

third Morgan standard is not addressed herein.

12

have been deprived of property “without due process of

law.” See Brief of Petitioners at 27-28 (“Pet. Br.”). Peti-

tioner’s formulation of the inquiry is inconsistent with

the standards applied in City of Boerne, which recognized

that Congress may enact legislation that sweeps broader

than a targeted constitutional violation, 117 S. Ct. at 2163,

and that Congress must have “wide latitude” in determin-

ing whether legislation should be considered “enforce-

ment” legislation. Jd. at 2164. Consequently, the ques-

tion of whether the particular state challenging the Patent

Remedy Act provides a remedy for its infringements,

while potentially relevant to the issue of proportionality,

does not speak to the threshold issue of Congress’s power

to enforce the Due Process Clause. See Morgan, 384 U.S.

at 649 (determining appropriateness of congressional ex-

ercise of enforcement power “[w]ithout regard to whether

the judiciary would find that the Equal Protection Clause

itself nullifies New York’s English literacy requirement”).

Instead, where legislation is directed at potential due

process violations by the States, the Court must examine

each state’s law to determine whether the perceived threat

is real.

The petitioner’s (and its amici’s) primary complaint is

that Congress did not adequately consider the possibility

that states already provided an adequate post-deprivation

remedy to injured patent holders; thus, the Patent Rem-

edy Act could not conceivably be deemed appropriate

enforcement legislation under Section 5. As an initial

matter, the fact that Congress did not specifically describe

circumstances in which states had previously infringed

patent rights without providing due process for redressing

those injuries cannot, of itself, invalidate the law. As this

Court has repeatedly held, judicial deference to Congress’s

exercise of its enforcement power “is based not on the

state of the legislative record Congress compiles but on

2 L&C

13

‘due regard for the decision of the body constitutionally

appointed to decide.” City of Boerne, 117 S. Ct. at

2170 (quoting Oregon v. Mitchell, 400 U.S. at 207 (opin-

ion of Harlan, J.)); cf. EEOC v. Wyoming, 460 USS.

226, 243 (1983). Consequently, the inquiry must be

whether Congress could have found, at the time of enact-

ment, that some states were not affording due process to

parties injured by the state’s patent infringements.

Based on the state law existing at the time of enact-

ment, Congress could easily have found that some states

did not provide adequate process to parties injured by a

state’s patent infringement. In some cases, state legal

remedies for patent infringement were non-existent, while

in others, they were seriously questionable or otherwise

inadequate. Neither petitioner nor its amici deny this,

arguing instead that most states provided some remedy for

state torts. See, e.g., Brief of Amici Curiae States of Ohio

et al. at 8 (“Ohio Br.”) (“Indeed, virtually all the States

have waived their sovereign immunity to some extent in

their own courts or at least have provisions for ‘takings,’

‘inverse condemnation,’ or tort claims in some forum.” )

(emphasis added).

Indeed, an examination of the comprehensive list of

state laws provided by amici States of Ohio ef al. in

Appendix B to their brief demonstrates that potential due

process violations loomed large at the time of enactment

of the Patent Remedy Act:

* In West Virginia, the state constitution forecloses

any relief against the state in state courts: “The

State of West Virginia shall never be made de-

fendant in any court of law or equity... .” W.

Va. Const. art. VI, § 35.7 Accordingly, the state

7The state constitutional and statutory provisions discussed in

this section are reproduced in relevant part in an appendix to this

brief.

14

tort claims act waives sovereign immunity from

suit only for “political subdivisions” of the state,

and not the state itself. See W. Va. Code Ann.

§ 29-12A-4. Thus, West Virginia apparently pro-

vides no process for a party injured by the state’s

patent infringement.

Similarly, in Colorado, the state’s waiver of sov-

ereign immunity is specifically limited by statute

to a narrow class of tortious acts, such as negli-

gent operation of a motor vehicle, which appar-

ently do not include tortious interference with a

property right, such as a patent. See Colo. Rev.

Stat. Ann. § 24-10-106. Nor would Colorado’s

inverse condemnation statute, which is limited to

actions relating to “real property,” permit recov-

ery for patent infringement. See Colo. Rev. Stat.

Ann. § 24-56-116.

Maine’s legislative waiver of sovereign immunity

is similarly limited by a general rule against

waiver, with certain limited exceptions that do not

include patent infringement actions or their equiva-

lent common law claim. See Me. Rev. Stat. Ann.

tit. 14, $$ 8103, 8104-A.

Wyoming’s law is to the same effect. See Wyo.

Stat. Ann. § 1-39-104 through -112 (limited waiver

of sovereign immunity); Wyo. Stat. Ann. § 1-26-

516 (inverse condemnation for improper posses-

sion of or damage to “land” ).

Maryland’s law limits liability for claims against

the state to $100,000, a value that could be se-

verely inadequate in many cases of paient infringe-

ment. See Md. Code Ann., Cts. & Jud. Proc.

§ 5-522(a) (5).

Many states provide “good faith” or discretionary

function exceptions to their sovereign immunity

waivers that would exempt state patent infringe-

TT a

15

ments where the state acts in the exercise of due

care or in the performance of a discretionary

function under a valid state law. See, e.g., Ind.

Code § 34-14-4-4(6), (8); Minn. Stat. Ann.

§ 3.736; Tenn. Code Ann. §§ 29-20-201, 29-20-

205; Ga. Code Ann. § 50-21-24(1)-(2); Del.

Code § 4001(1)-(2).

* Many of the state inverse condemnation statutes

relied upon by amici, like those in Colorado and

Wyoming, permit recovery only for injuries to

“real property.” See, ¢.g., Conn. Gen, Stat. Ann.

§ 48-17b; Haw. Rev. Stat. Ann. § 113-4; Miss.

Code Ann. § 43-37-9; N.C. Gen. Stat. §§ 40A-

2(7), 40A-51.

Against this backdrop, Congress clearly could have

concluded that a federal remedy was necessary both to

“deter{]” and to “remed[y]” possible state action that had

a “significant likelihood of being unconstitutional.” See

City of Boerne, 117 S. Ct. at 2163, 2170. It is wholly

unrealistic to expect that, in any context, the laws of

every State in the Union will be inadequate to protect

due process rights. Insistence on such a circumstance as

a precondition to Congress’s exercise of its Section 5 en-

forcement powers would, as a practical matter, eviscerate

that power. This Court’s Section 5 decisions do not so

limit congressional authority. See id. at 2162.* Here,

8 This does not mean that no legislation will ever fail Morgan's

“legitimacy” inquiry. For example, in the Civil Rights Cases, 109

U.S. 3 (1883), this Court held that the “public accommodation”

provisions of the Civil Rights Act of 1875 were invalid enactments

under Section 5 of the Fourteenth Amendment. The challenged

sections of the Act prohibited private conduct that discriminated

against individuals on account of race or color in the provision of

public accommodations. /d. at 9-10. The Court found that Congress

did not have the authority to enact the legislation because, infer

alia, the prohibited conduct did not rise to the level of state action.

Id. at 18. Thus, under no circumstances could the Fourteenth

16

many state laws existing at the time of the enactment of

the Patent Remedy Act were wholly inadequate to deal

with potential infringements upon a patent holder’s rights

by these states. Accordingly, regardless of whether the

State of Florida provided adequate remedies, the end

sought by the Patent Remedy Act, providing due process

of law to parties injured by a state’s patent infringment,

is legitimate. The Patent Remedy Act thus is properly

regarded as an enactment to remedy and to prevent these

possible due process violations.®

B. The Patent Remedy Act Is a Proportionate Re-

sponse to the Perceived Constitutional Threat

Once Morgan's threshold determination is met, the

Court then asks whether the legislation is a proportionate

Amendment be viewed as prohibiting the conduct targeted by the

legislation. See also United States v. Harris, 106 U.S. 629, 640

(1883) (“As ... the section of the law under consideration is di-

rected exclusively against the action of private persons, without

reference to the laws of the State[,] or their administration by her

officers, we are clear in the opinion that it is not warranted by any

clause in the Fourteenth Amendment to the Constitution.”) (em-

phasis added). Similarly, in Wilson-Jones v. Caviness, 107 F.3d

358 (6th Cir. 1997), the Court held that states could not be sued

in federal court under an amendment to the Fair Labor Standards

Act (“FLSA”) because the provisions of the Act were impermissible

under Section 5. There, as with the Civil Rights Cases, it was im-

possible to conceive of a circumstance in which Congress could have

concluded that the relevant provisions of the Act, which mandated

minimum wage and maximum hours for state employees, were tar-

geted at unconstitutional state conduct. The Equal Protection

Clause would permit the classifications drawn by the FLSA in all

circumstances. Thus, the ends sought to be achieved by the FLSA,

as applied to the states, were illegitimate.

9 Petitioner also argues that the legislation cannot be justified

because it neither protects a protectible property interest nor tar-

gets unconstitutional intentional deprivations. Because these issues

appear to relate solely to the specific statute at issue here, and do

not raise issues potentially affecting the railroad industry, AAR

does not address those issues in this brief.

17

response to th. constitutional violations targeted. City of

Boerne, 117 S. Ct. at 2164. In making this inquiry, City

of Boerne recognized that “preventive rules are sometimes

appropriate remedial measures.” Jd. at 2169; see also

College Sav. Bank v. Florida Prepaid Postsecondary Edu.

Expense Bd., 148 F.3d 1343, 1351 (Fed. Cir. 1998)

(“We do not read the precedent to permit abrogation of

the state’s immunity only in those instances in which a

state provides no due process in its own courts to redress

the alleged misconduct.”). Against the harm sought to

be redressed by the legislation, the Court balances the

degree of intrusion of the legislation upon state conduct,

including whether the legislation “affect[s] a discrete class

of state” action, the scope of the “litigation burden on

the States,” and the degree to which the legislation curtails

the States’ “general regulatory power.” 117 S. Ct. at

2170-71. Legislation that is tailored in its scope and

remedy is more likely to be constitutional than the per-

vasive and draconian legislation struck down in City of

Boerne.

The Patent Remedy Act meets this proportionality

standard. First, the remedies provided by the Act are

proportionate to the type of harm inflicted. For instance,

although treble damages are permitted under the Act, they

are only permitted where the state’s conduct in infringing

a patent is found to be willful and deliberate. 35 U.S.C.

§§ 284-85 (1994). In all other cases, damages are limited

to those necessary to compensate the patent holder for the

infringement. /d. § 284.

Second, the scope of the Act does not remotely resem-

ble the scope of RFRA, invalidated in City of Boerne.

There, RFRA potentially applied to every single piece of

state legislation and prohibited all manner of official ac-

tion. 117 S. Ct. at 2170. Here, by contrast, state patent

infringements are likely confined to a narrow class of

18

state conduct, primarily where the state conducts itself

as a commercial actor. See Pet. App. A at 24a.

Finally, according to the petitioner's own yg oar re

litigation burden imposed by the Bg Me so

relatively minor. As petitioner argues, the radii

cuit’s opinion pointed to only eight instances a

1887 and 1990 where states have been sued for Ln ;

infringement.” Pet. Br. at 27. Thus, the patent ro, of

ment litgation burden on the states to date has a

consequential. This empirical evidence demonstrates

unlike RFRA, the Patent Remedy Act does not _

“substantial costs” or “imposfe] . . . heavy litigation bur-

den{s] on the States.” 117 S. Ct. at 2171.

tless, Congress could have provided a more

BP ase remedy vi the States in the Patent Remedy

Act. But the Fourteenth Amendment Enforcement pono

does not require a perfect fit, nor does it permit this oo .

to substitute in a wholesale manner its judgment for

of Congress. Section 5 legislation does not require “termi

nation dates, geographic restrictions or egregious predi-

cates” to pass constitutional scrutiny. City of on

117 S. Ct. at 2170. These limitations merely aid is

Court in reviewing the permissibility of congressional ac-

tion. In the “first instance,” however, Congress must

“‘determin{e] whether and what legislation 1s needed *

secure the guarantees of the Fourteenth Amendment, an

its conclusions are entitled to much deference.” /d. at

2172 (citation omitted). The Court must perform s

judicial review function against the presumption

validity [that congressional] enactments now rl - ,

It is only where the remedy created by congressioan! leg-

islation so overreaches the unconstitutional evil addressed

by the legislation that the Court may invalidate the legis-

lation.

19

{I, PETITIONER CORRECTLY CITES SECTION 306

OF THE 4-R ACT AS AN EXAMPLE OF A PROPER

CONSTITUTIONAL ABROGATION OF STATE SOV-

EREIGN IMMUNITY

While AAR disagrees with petitioner regarding the con-

stitutionality of the Patent Remedy Act, AAR shares com-

mon ground with petitioner on one crucial point: that

Section 306 of the 4-R Act, 49 U.S.C. § 11501—the

Statute that prompted AAR to file this amicus brief—

Presents an even more compelling case of “appropriate”

legislation to enforce the Fourteenth Amendment. In its

brief on the merits, petitioner cites Wheeling & Lake Erie

Ry., 141 F.3d 88—in which the Third Circuit upheld

Section 306 as a valid exercise of congressional enforce-

ment power under the Fourteenth Amendment—as an

example of cases in which lower courts have found “the

existence of unconstitutional behavior to justify § 5 legis-

lation.” Pet. Br. at 22. Similarly, in its petition for writ

of certiorari, petitioner described Section 306 as a statute

directed at state conduct by which “traditional guarantees

of the Fourteenth Amendment were very closely impli-

cated.” Cert. Pet. at 13 (citing Wheeling).

As every court of appeals that has reached the issue

has held, Section 306 is indeed a classic case of Con-

gress’s use of its Section 5 enforcement power to remedy

a violation of the Fourteenth Amendment's substantive

protections—in this case, the Equal Protection Clause.

See Wheeling, 141 F.3d 88: Oregon Short Line R.R., 139

F.3d 1259. In that statute, Congress sought to remedy

what it perceived to be invidious discrimination by the

States against interstate railroads: “Unfortunately, inter-

State carriers, especially railroads, are easy prey for State

and local tax assessors. Railroads, oil pipelines, and other

interstate carriers are nonvoting, often nonresident, tar-

gets for local taxation, and cannot easily remove their

20

right-of-way and terminals.” S. Rep. No. 630, 91st Cong.,

Ist Sess. 3 (1969). Confronted with evidence that “the

railroads ha[d] been assessed more than $900 million in

discriminatory taxes” during a nine-year period ending in

the late 1960's, id. at 3, and the absence of a “plain,

speedy, and efficient remedy,” in state or federal courts,

id. at 7, Congress enacted legislation providing a modest

remedy—the right to sue an offending state in federal

court “to prevent a violation” of the 4-R Act's prohibition

against discriminatory state taxation of railroads. See 49

U.S.C. § 11501(c).

As petitioners’ argument implies, Section 306 is the

paradigm of a proportionate congressional response to a

perceived constitutional threat. See City of Boerne, 117

S. Ct. at 2164. The legislation was enacted to address

what Congress perceived as impermissible discrimination

against a discrete class of individuals. As one court that

has upheld the Act reasoned, “there can be little doubt

that discriminatory state taxation can implicate equal pro-

tection concerns.” Oregon Short Line R.R., 139 F.3d at

1266.

Congress’s goal in adopting Section 306—preventing

invidious discrimination against the railroads—is, as peti-

tioner itself recognizes, clearly a legitimate Fourteenth

Amendment objective. In examining state taxation prac-

tices regarding interstate railroads, Congress could have

determined that state practices violated the Equal Protec-

tion Clause in numerous circumstances. First, states run

afoul of the constitutional guarantee of equal protection

by subjecting railroads as a class to invidious discrimina-

tion. See Morgan, 384 U.S. at 656 (“[I]t is enough that

we perceive a basis upon which Congress might predicate

a judgment that [the challenged state law] . . . constituted

an invidious discrimination in violation of the Equal Pro-

21

tection Clause.”); see also United States v. Uvalde Consol.

Indep. Sch. Dist., 625 F.2d 547, 553 (Sth Cir. 1980)

(“Congress’s power under Section 5 of the fourteenth

amendment clearly extends to protection of any group

of persons invidiously discriminated against by state law

- +++), cert. denied, 451 U.S. 1002 (1981); Wilson-

ones, 99 F.3d at 210 n.4 (noting that enforcement legis-

lation may be more appropriate “if Congress made find-

ings that a particular group needed legal protection to

remedy some sort of invidious discrimination not directly

addressed by federal precedent”).

Second, Congress could also have determined that states

violated the equal protection clause where they applied

otherwise neutral state tax laws in a discriminatory man-

ner against the railroads. See Allegheny-Pittsburgh Coal

Co. v. County Comm'n, 488 U.S. 336 (1989). Thus, to

the extent Section 306 addresses the unequal assessment

practices of the States, its purpose is clearl iti

, y legitimate

under the equal protection clause.

Section 306 is also a classic example of a proportionate

legislative response to Congress’s legitimate perception of

prec agg Presa by the States. Its remedial

narrowly tailored “to prevent{in iola-

tion” of the 4-R Act’s Peer Ts en's ll "=

U.S.C. § 11501(c). Thus, railroads generally have re-

course only to non-monetary, equitable and declaratory

relief." Moreover, courts are not permitted to enjoin

collection or assessment of all state railroad taxes, but

only the discriminatory portion of the state tax. Finally,

Section 306 permits relief only where railroads can show

Po on ae L. No. 94-210, § 306(2), 90 Stat. 31, 54 (1976) (per-

inj wes! ral courts “to grant such mandatory or prohibitive

unctive relief, interim equitable relief, and declaratory judgments

as may be necessary to prevent, restrai : ;

Mia eae

22

that the assessed value of their property is at least five

percent greater than similar commercial and industrial

property. 49 U.S.C. § 11501(c). Thus, where there is

only a minimal level of discrimination, federal courts have

no power to interfere under Section 306, even if that

discrimination might itself violate the Equal Protection

Clause.

An analysis of Section 306 thus confirms the appro-

priateness of the two-part test applied by this Court in

City of Boerne for determining whether congressional

abrogation of sovereign immunity is “appropriate” under

Section 5. Petitioners’ efforts to undermine that test and

to erode the authority of Congress to deter and to remedy

violations of the Fourteenth Amendment should be

rejected.

CONCLUSION

For the reasons stated herein, this Court should affirm

the decision of the Federal Circuit.

Respectfully submitted,

BETTY JO CHRISTIAN

Counsel of Record

SHANNEN W. Corrin

STEPTOE & JOHNSON LLP

1330 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 429-8113

Counsel for Amicus Curiae

APPENDIX

1

C.RS.;

(b) the operation of any public hospital, correc

tional facility, as defined in section 17-1-102, C.R.S.,

or jail by such public entity;

7

3 3

<

2

Fs

Bes

(c) A dangerous condition of any public building

23

»

che & v

ne *

2a

feres with the movement of traffic” shall not include

traffic signs, signals, or markings, or the lack thereof.

Nothing in this subparagraph (I) shall preclude a

particular dangerous accumulation of snow, ice, sand,

or gravel from being found to constitute a dangerous

condition in the surface of a public roadway when

the entity fails to use existing means available to it

for removal or mitigation of such accumulation and

when the public entity had actual notice through

the proper public official responsible for the roadway

and had a reasonable time to act.

(II) A dangerous condition caused by the failure

to realign a stop sign or yield sign which was turned,

without authorization of the public entity, in a man-

ner which reassigned the right-of-way upon intersect-

ing public highways, roads, or streets, or the failure

to repair a traffic control signal on which conflicting

directions are displayed;

(111) A dangerous condition caused by an ac-

cumulation of snow and ice which physically inter-

feres with public access on walks leading to a public

building open for public business when a public

entity fails to use existing means available to it for

removal or mitigation of such accumulation and

when the public entity had actual notice of such

condition and a reasonable time to act.

(e) A dangerous condition of any public hospital,

jail, public facility located in any park or recreation

area maintained by a public entity, or public water,

gas, sanitation, electrical, power, or swimming facil-

ity. Nothing in this paragraph (e) or in paragraph

(d) of this subsection (1) shall be construed to pre-

vent a public entity from asserting sovereign immu-

nity for an injury caused by the natural condition of

3a

any unimproved property, whether or not such prop-

erty is located in a park or recreation area or on a

highway, road, or street right-of-way.

(f) The operation and maintenance of any public

water facility, gas facility, sanitation facility, electri-

cal facility, power facility, or swimming facility by

such public entity.

(1.5)(a) The waiver of sovereign immunity created in

paragraphs (b) and (¢) of subsection (1) of this section

does not apply to claimants who have been convicted of

a crime and incarcerated in a correctional facility or jail

pursuant to such conviction, and such correctional facility

or jail shall be immune from liability as set forth in

subsection (1) of this section.

(b) The waiver of sovereign immunity created in para-

graphs (b) and (e) of subsection (1) of this section

does apply to claimants who are incarcerated but not yet

convicted of the crime for which such claimants are being

incarcerated if such claimants can show injury due to

negligence.

(2) Nothing in this section or in section 24-10-104

shall be construed to constitute a waiver of sovereign

immunity where the injury arises from the act, or failure

to act, of a public employee where the act is the type

of act for which the public employee would be or here-

tofore has been personally immune from liability.

(3) In addition to the immunity provided in sub-

section (1) of this section, a public entity shall also have

the same immunity as a public employee for any act or

failure to act for which a public employee would be or

heretofore has been personally immune from liability.

(4) No rule of law imposing absolute or strict liability

shall be applied in any action against a public entity or

4a

a public employee for an injury resulting from a dan-

gerous condition of, or the operation and maintenance of,

a public water faciilty or public sanitation facility. No

liability shall be imposed in any such action unless negli-

gence is proven.

Colo. Rev. Stat. Ann. § 24-56-116. Inverse condemna-

tion proceedings

Where an inverse condemnation proceeding is instituted

by the owner of any right, title, or interest in real prop-

erty because of the alleged taking of his prope;*y for any

program or project for which federal financial assistance

will be available to pay all or any part of the cost of the

program or project, the court rendering a judgment for

the plaintiff in such proceeding and awarding compensa-

tion for the taking of property or the attorney for the

acquiring agency effecting a settlement of any such pro-

ceeding shall determine and award or allow to such plain-

tiff, as a part of such judgment or settlement, such sum

as will, in the opinion of the court or such attorney, re-

imburse such plaintiff for his reasonable costs, disburse-

ments, and expenses, including reasonable attorney, ap-

praisal, and engineering fees actually incurred because of

such proceeding.

Conn. Gen. Stat. Ann. § 48-17b. Inverse condemnation.

Plaintiffs award

The state court rendering a judgment for the plaintiff

in an inverse condemnation proceeding brought against

the state by the owner of real property, or the Attorney

General effecting a settlement of any such proceeding,

shall determine and award or allow to such plaintiff, as a

part of such judgment or settlement, such sum as will in

the opinion of the court or the Attorney General reim-

burse such plaintiff for his reasonable costs, disburse-

Sa

ments and expenses, including reasonable attorney, ap-

praisal and engineering fees, actually incurred because of

such proceeding.

Del. Code § 4001(1)-(2). Limitation on civil liability

Except as otherwise provided by the Constitutions or

laws of the United States or of the State, as the same may

expressly require or be interpreted as requiring by a

court of competent jurisdiction, no claim or cause of

action shall arise, and no judgment, damages, penalties,

costs or other money entitlement shall be awarded or

assessed against the State or any public officer or em-

Ployee, including the members of any board, commission,

conservation district or agency of the State, whether

elected or appointed, and whether now or previously serv-

ing as such, in any civil suit or proceeding at law or in

equity, or before any administrative tribunal, where the

following elements are present:

(1) The act or omission complained of arose out

of and in connection with the performance of an

official duty requiring a determination of policy, the

interpretation or enforcement of statutes, rules or

regulations, the granting or withholding of publicly

created or regulated entitlement or privilege or any

other official duty involving the exercise of discre-

tion on the part of the public officer, employee or

member, or anyone over whom the public officer,

ogee der mh ra og supervisory author-

ity;

. (2) The act or omission complained of was done

in good faith and in the belief that the public interest

would best be served thereby; and

(3) The act or omission complained of was done

without gross or wanton negligence;

6a

provided that the immunity of judges, the Attor-

ney General and Deputy Attorneys General, and

members of the General Assembly shall, as to all

civil claims or causes of action founded upon an act

or omission arising out of the performance of an

official duty, be absolute; provided further that in

any civil action or proceeding against the State or

a public officer, employee or member of the State,

the plaintiff shall have the burden of proving the

absence of 1 or more of the elements of immunity as

set forth in this section.

Ga. Code Ann. § 50-21-24(1)-(2). Exceptions to state

liability

The state shall have no liability for losses resulting

from:

(1) An act or omission by a state officer or

employee exercising due care in the execution of a

statute, regulation, rule, or ordinance, whether or not

such statute, regulation, rule, or ordinance is valid;

(2) The exercise or performance of or the failure

to exercise or perform a discretionary function or

duty on the part of a state officer or employee,

whether or not the discretion involved is abused;

* * * -

Haw. Rev. Stat. Ann. § 113-4. Proceeding by owner

Where an inverse condemnation proceeding is instituted

by the owner of any right, title or interest in real property

because of use of the owner’s property in any program

or project in which federal or federal-aid funds are used,

the court, rendering a judgment for the plaintiff in such

proceeding and awarding compensation for the taking of

property, or the State’s attorney effecting a settlement of

any such proceeding, shall determine and award or allow

7a

to such plaintiff, as a part of such judgment or settlement,

such sums as will, in the opinion of the court or the

State’s attorney, reimburse such plaintiff for the plaintiff's

reasonable costs, disbursements and expenses, including

reasonable attorney, appraisal and engineering fees, ac-

tually incurred because of such proceeding.

Ind. Code § 34-13-3-3(6), (8). Losses for which govern-

mental entity or employee not liable

A governmental entity or an employee acting within

the scope of the employee’s employment is not liable if

a loss results from:

* x * *

(6) the performance of a discretionary function;

however, the provision of medical or optical care, as

provided in, IC 34-6-2-38 shall be considered as a

ministerial act;

* * * *x

(8) an act or omission performed in good faith

and without malice under the apparent authority of a

statute which is invalid, if the employee would not

have been liable had the statute been valid;

cd * ok a

Md. Code Ann. Cts. & Jud. Proc. § 5-522(a)(5

and its personnel and units : sie

(a) Tort liability—Exclusions from waiver under

§ 12-104 of the State Government Article. —Immunity

of the State is not waived under § 12-104 of the State

Government Article for:

a a ok *

(S ) A claim by an individual arising from a single

incident or occurrence that exceeds $100,000;

* * * *

8a

Me. Rev. Stat. tit. 14, § 8103. Immunity from suit

1. Immunity. Except as otherwise expressly provided

by statute, all governmental entities shall be immune from

suit on any and all tort claims seeking recovery of dam-

ages. When immunity is removed by this chapter, any

claim for damages shall be brought in accordance with

the terms of this chapter.

Me. Rev. Stat. tit. 14, § 8104-A. Exceptions to immunity

Except as specified in section 8104-B, a governmental

entity is liable for property damage, bodily injury or death

in the following instances.

1. OWNERSHIP; MAINTENANCE OR USE OF

VEHICLES, MACHINERY AND EQUIPMENT. A

governmental entity is liable for its negligent acts or

omissions in its ownership, maintenance or use of any:

A. Motor vehicle, as defined in Title 29-A, section

101, subsection 42;

B. Special mobile equipment, as defined in Title

29-A, section 101, subsection 70;

C. Trailers, as defined in Title 29-A, section 101.

subsection 86;

D. Aircraft, as defined in Title 6, section 3, sub-

section 5;

E. Watercraft, as defined in Title 12, section 662,

subsection 12;

F. Snowmobiles, as defined in Title 12, section

7821, subsection 5;

G. Other machinery or equipment, whether mobile

or stationary.

The provisions of this section do not apply to the sales

of motor vehicles and equipment at auction by a govern-

mental entity.

9a

2. PUBLIC BUILDINGS. A governmental entity is

liable for its negligent acts or omissions in the construc-

tion, operation or maintenance of any public building or

the appurtenances to any public building. Notwithstand-

ing this subsection, a govermental entity is not liable for

any claim which results from:

= The constructon, ownership, maintenance or use

of:

(1) Unimproved land;

(2) Historic sites, including, but not limited to,

memorials, as defined in Title 12, section 601,

subsection 1;

(3) Land, buildings, structures, facilities or

equipment designed for use primarily by the

public in connection with public outdoor recrea-

tion; or

(4) Dams;

B. The ownership, maintenance or use of any build-

ing acquired by a governmental entity for reasons of

tax delinquency, from the date of foreclosure and

until actual possession by the delinquent taxpayer or

the taxpayer’s lessee or licensee has ceased for a

period of 60 days; or

C. The ownership, maintenance or use of any build-

ing acquired by a governmental entity by eminent

domain or by condemnation until actual possession

by the former owner or the owner’s lessee or licensee

has ceased for a period of 60 days;

3. DISCHARGE OF POLLUTANTS. A govern-

mental entity is liable for its negligent acts or omissions

in the discharge, dispersal, release or escape of smoke,

vapors, soot, fumes, acids, alkalines, toxic chemicals,

liquids or gases, waste materials or other irritants, con-

taminants or pollutants into or upon land, the atmosphere

10a

or any water course or body of water, but only to the

extent that the discharge, dispersal, release or escape

complained of is sudden and accidental.

4. ROAD CONSTRUCTION, STREET CLEANING

OR REPAIR. A governmental entity is liable for its

negligent acts or omissions arising out of and occurring

during the performance of construction, street cleaning or

repair operations on any highway, town way, sidewalk,

parking area, causeway, bridge, airport runway or taxi-

way, including appurtenances necessary for the control of

those ways including, but not limited to, street signs,

traffic lights, parking meters and guardrails. A govern-

mental entity is not liable for any defect, lack of repair

or lack of sufficient railing in any highway, town way,

sidewalk, parking area, causeway, bridge, airport runway

or taxiway or in any appurtenance thereto.

Minn. Stat. Ann. § 3.736. Tort claims.

Subdivision 1. General rule. The state will pay com-

pensation for injury to or loss of property or personal

injury or death caused by an act or omission of an em-

ployee of the state while acting within the scope of office

or employment or a peace officer who is not acting on

behalf of a private employer and who is acting in good

faith under section 629.40, subdivision 4, under circum-

stances where the state, if a private person, would be liable

to the claimant, whether arising out of a governmental or

proprietary function. Nothing in this section waives the

defense of judicial or legislative immunity except to the

extent provided in subdivision 8.

~ x * ~

Subd. 3. Exclusions. Without intent to preclude fhe

courts from finding additional cases where the state and

its employees should not, in equity and good conscience,

pay compensation for personal injuries or property losses,

lla

the legislature declares that the state and its employees

are not liable for the following losses:

(a) a loss caused by an act or omission of a state

employee exercising due care in the execution of a

valid or invalid statute or rule;

(b) a loss caused by the performance or failure to

perform a discretionary duty, whether or not the

discretion is abused;

Hs 2 Xe *

Miss. Code Ann. § 43-37-9. Reimbursement of expenses

in cases of inverse condemnation

Where an inverse condemnation proceeding is insti-

tuted by the owner of any right, title or interest in real

property because of use of his property in any program

or project in which federal and/or federal-aid funds are

used, the court, rendering a judgment for the plaintiff

in such proceeding and awarding compensation for the

taking of property, or the state’s attorney effecting a set-

tlement of any such proceeding, shall determine and award

or allow to such plaintiff, as a part of such judgment or

settlement, such sum as will, in the opinion of the court

or the state’s attorney, reimburse such plaintiff for his

reasonable costs, disbursements and expenses, including

reasonable attorney, appraisal and engineering fees, actu-

ally incurred because of such proceeding.

N.C, Gen. Stat. § 40A-2(7). Definitions

As used in this Chapter the following words and phrases

have the meanings indicated unless the context clearly

requires another meaning:

* * * *

12a

(7) “Property” means any right, title, or interest

in land, including leases and options to buy or sell.

“Property” also includes rights of access, rights-of-

way, easements, water rights, air rights, and any

other privilege or appurtenance in or to the posses-

sion, use, and enjoyment of land.

N.C. Gen. Stat. § 40A-51. Remedy where no declaration

of taking filed; recording memorandum of action

(a) If property has been taken by an act or omission

of a condemnor listed in G.S. 40A-3(b) or (c) and no

complaint containing a declaration of taking has been

filed the owner of the property, may initiate an action to

seek compensation for the taking. The action may be

initiated within 24 months of the date of the taking of the

affected property or the completion of the project involv-

ing the taking, whichever shall occur later. The complaint

shall be filed in the superior court and shall contain the

following: the names and places of residence of all per-

sons who are, or claim to be, owners of the property, so

far as the same can by reasonable diligence be ascertained;

if any persons are under a legal disability, it must be so

stated; a statement as to any encumbrances on the prop-

erty; the particular facts which constitute the taking to-

gether with the dates that they allegedly occurred, and;

a description of the property taken. Upon the filing of

said complaint summons shall issue and together with a

copy of the complaint be served on the condemnor. The

allegations of said complaint shall be deemed denied; how-

ever, the condemnor within 60 days of service summons

and complaint may file answer thereto. If the taking is

admitted by the condemnor, it shall, at the time of filing

the answer, deposit with the court the estimated amount

of compensation for the taking. Notice of the deposit

shall be given to the owner. The owner may apply for

l3a

disbursement of the deposit and disbursement shall be

made in accordance with the applicable provisions of

G.S. 40A-44, If a taking is admitted, the condemnor shall,

within 90 days of the filing of the answer to the com-

plaint, file a map or plat of the property taken. The pro-

cedure hereinbefore set out in this Article and in Article

4 shall be followed for the purpose of determining all

matters raised by the pleadings and the determination of

just compensation.

(b) The owner at the time of filing of the complaint

shall record a memorandum of action with the register of

deeds in all counties in which the property involved is

located. The memorandum is to be recorded among the

land records of the county. The memorandum of action

shall contain:

(1) The names of those persons who the owner

is informed and believes to be or claim to be owners

of the property;

(2) A description of the entire tract or tracts

affected by the alleged taking sufficient for the iden-

tification thereof;

(3) A statement of the property allegedly taken;

and

(4) The date on which owner alleges the taking

occurred, the date on which said action was insti-

tuted, the county in which it was instituted, and

such other reference thereto as may be necessary

for the identification of said action.

(c) Nothing in this section shall in any manner affect

an owner’s common-law right to bring an action in tort

for damage to his property.

l4a

Tenn. Code Ann, § 29-20-201. General rule of immanity

from suit—Exception

(a) Except as may be otherwise provided in this chap-

ter, all governmental entities shall be immune from suit

for any injury which may result from the activities of

such governmental entities wherein such governmental

entities are engaged in the exercise and discharge of any

of their functions, governmental or proprietary.

(b)(1) The general assembly finds and declares that

the services of governmental entity boards, commissions,

authorities and other governing agencies are critical to

the efficient conduct and management of the public affairs

of the citizens of this state. Complete and absolute im-

munity is required for the free exercise and discharge of

the duties of such boards, commissions, authorities and

other governing agencies. Members of boards, commis-

sions, authorities, and other governing agencies must be

permitted to operate without concern for the possibility

of litigation arising from the faithful discharge of their

duties.

(2) All members of boards, commissions, agencies,

authorities, and other governing bodies of any govern-

mental ent'ty, created by public or private act, whether

compensated or not, shall be immune from suit arising

from the conduct of the affairs of such board, commis-

sion, agency, authority, or other governing body. Such

immunity from suit shall be removed when such conduct

amounts to willful, wanton, or gross negligence.

(c) When immunity is removed by this chapter any

claim for damages must be brought in strict compliance

with the terms of this chapter.

15a

Tenn. Code Ann. § 29-20-205. Removal of immunity for

injury caused by negligent act or omission of employees—

Immunity from suit of all governmental entities is re-

moved for injury proximately caused by a negligent act

or omission of any employee within the scope of his em-

ployment except if the injury:

(1) Arises out of the exercise or the failure to

exercise or perform a discretionary function, whether

or not the discretion is abused;

* * * *

W. Va. Const. art. VI, § 35. State not to be made de-

fendant in any court

The State of West Virginia shall never be made defend-

ant in any court of law or equity, except the State of West

Virginia, including any subdivision thereof, or any munici-

pality therein, or any officer, agent, or employee thereof,

may be made defendant in any garnishment or attach-

ment proceeding, as garnishee or suggestee.

W. Va. Code Ann. § 29-12A-4, State not to be made

defendant in any court

(a) The distinctior existing between governmental

functions and proprietary functions of political subdivi-

sions is not affected by the provisions of this article; how-

ever, the provisions of this article shall apply to both

governmental and proprietary functions.

(b) (1) Except as provided in subsection (c) of this

section, a political subdivision is not liable in damages

in a civil action for injury, death, or loss of persons or

property allegedly caused by any act or omission of the

political subdivision or any employee of the political sub-

16a

division in connection with a governmental or proprietary

function: Provided, That this article shall not restrict the

availability of mandamus, injunction, prohibition, and

other extraordinary remedies.

Wyo. Stat. Ann. § 1-26-516. Action for inverse condem-

nation

When a person possessing the power of condemnation

takes possession of or damages land in which he has no

interest, or substantially diminishes the use or value of

land, due to activities on adjoining land without the au-

thorization of the owner of the land or before filing an

action of condemnation, the owner of the land may file

an action in district court seeking damages for the taking

or damage and shall be granted litigation expenses if

damages are awarded to the owner.

Wyo. Stat. Ann. § 1-39-104. Granting immunity from

tort liability; liability on contracts; exceptions

(a) A governmental entity and its public employees

while acting within the scope of duties are granted immu-

nity from liability for any tort except as provided by

W.S. 1-39-105 through 1-39-112. Any immunity in ac-

tions based on a contract entered into by a governmental

entity is waived except to the extent provided by the

contract if the contract was within the powers granted

to the entity and was properly executed. The claims pro-

cedures of W.S. 1-39-113 apply to contractual claims

against governmental entities.

(b) When liability is alleged against any public em-

ployee, if the governmental entity determines he was act-

ing within the scope of his duty, whether or not alleged

17a

to have been committed maliciously or fraudulently, the

governmental entity shall provide a defense at its expense.

; (c) A governmental entity shall assume and pay a

judgment entered under this act against any of its public

employees, provided:

(i) The act or omission upon which the claim is

based has been determined by a court or jury to be

within the public employee’s scope of duties;

(ii) The payment for the judgment shall not ex-

ceed the limits provided by W.S. 1-39-118; and

(iii) All appropriate appeals from the judgment

have been exhausted or the time has expired when

appeals may be taken.

(d) A governmental entity shall assume and pay set-

tlements of claims under this act against its public em-

ployees in accordance with W.S. 1-39-115, 1-41-106 or

1-42-107.

Wyo. Stat. Ann. § 1-39-105. Liability; operation of water

vehicles, aircraft and watercraft

A governmental entity is liable for damages resulting

from bodily injury, wrongful death or property damage

caused by the negligence of public employees while act-

ing within the scope of their duties in the operation of

any motor vehicle, aircraft or watercraft.

Wyo. Stat. Ann. § 1-39-106. Liability; buildings, recreation

areas and public parks

A governmental entity is liable for damages resulting

from bodily injury, wrongful death or property damage

caused by the negligence of public employees while act-

ing within the scope of their duties in the operation or

18a

maintenance of any building, recreation area or public

park.

Wyo. Stat. Ann. § 1-39-107. Liability; airports

(a) A governmental entity is liable for damages re-

sulting from bodily injury, wrongful death or property

damage caused by the negligence of public employees

while acting within the scope of their duties in the opera-

tion of airports.

(b) The liability imposed pursuant to subsection (a)

of this section does not include liability for damages due

to the existence of any condition arising out of compli-

ance with any federal or state law or regulation govern-

ing the use and operation of airports.

Wyo. Stat. Ann. § 1-39-108, Liability; public utilities

(a) A governmental entity is liable for damages re-

sulting from bodily injury, wrongful death or property

damage caused by the negligence of public employes while

acting within the scope of their duties in the operation of

public utilities and services including gas, electricity,

water, solid or liquid waste collection or disposal, heating

and ground transportation.

(b) The liability imposed pursuant to subsection (a)

of this section does not include liability for damages re-

sulting from bodily injury, wrongful death or property

damage caused by a failure to provide an adequate supply

of gas, water, electricity or services as described in sub-

section (a) of this section.

Wyo. Stat. Ann. § 1-39-109. Liability; medical facilities

A governmental entity is liable for damages resulting

from bodily injury, wrongful death or property damage

caused by the negligence of public employees while acting

19a

within the scope of their duties in the operation of wy

public hospital or in providing public outpatient health

care.

yo.

institutions, while acting within the scope of their duties.

(b) Notwithstanding W.S. 1-39-118(a), for claims

under this section against a physician employed by the

state of Wyoming based upon an act, error or omission

occurring on or after May 1, 1988, the liability of the state

shall not exceed the sum of one million dollars

($1,000,000.00) to any claimant for any number of

claims arising out of a single transaction or occurrence

nor exceed the sum of one million dollars ($1,000,000.00)

for all claims of all claimants arising out of a single

transaction or occurrence.

Wyo. Stat. Ann. § 1-39-112. Liability; peace officers.

A governmental entity is liable for damages resulting

from tortious conduct of peace officers while acting within

the scope of their duties.