Opposition Brief — Stokes v. University of Tennessee at Martin

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in the Supreme Court of the United States

OCTOBER TERM, 107

THE UNIVERSITY OF TENNESSEE AT MARTIN,

Respondent.

On Peririon ror Wait or CERTIORARI TO THE

‘BRIEF IN OPPOSITION

BraucHamp E. BROGAN* |

The t siversit ty of Tennessee

810 Andy Holt Tower

Knoxville, Tennessee 37996-0184

(615) 974-3245

Rowarp:C, Leapserren

Associate General Counsel

Attorneys for Respondent

*Counsel of Record

RESTATEMENT OF THE QUESTION PRESENTED

FOR REVIEW

Did the Tennessee Court of Appeals for the Western

Section Correctly Hold Petitioner’s 42 U.S.C. § 1983 Action

to Be Barred by the Doctriine of Sovereign Immunity

and Did the Tennessee Supreme Court Correctly Deny

Petitioner’s Application for Permission to Appeal From

That Judgment?

TABLE OF CONTENTS

RESTATEMENT OF QUESTION PRESENTED FOR

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ARGUMENT:

The Tennessee Court of Appeals for the Western

Section Correctly Held Petitioner’s 42 U.S.C.

§ 1983 Action to Be Barred by the Doctrine of

Sovereign Immunity and the Tennessee Supreme

Court Correctly Denied Petitioner’s Applica-

tion for Permission to Appeal From That Judg-

| NT RINT O NEE Na ea ey eSNG ETL SFG

TABLE OF AUTHORITIES

Cases

Alabama v. Pugh, 438 U.S. 781 (1978) ................-.--

Anderson v. Creighton, ........ 3 Saeewrener , 107 S. Ct.

SOME (IRET) societies wileiacidncniiclck

Atascadero State Hospital v. Scanlon, ........ US.

pores » 1 S OO 2 a oe

Carlson v. Highter, 612 F. Supp. 603 (E.D. Tenn.

REI >» ssc assennissinscsaleciepitaaighinesiethddeaalbeaash banaehiiliplabibsalagielisbiiains

Cory v. White, 457 U.S. 85 (1982) ............................

Davis v. Scherer, 468 U.S. 183 (1984) W202...

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

Firemen’s Fund Ins. v. Bell Helicopter Textron,

667 F. Supp. 583 (E.D. Tenn. 1987) 0.000000...

Itt

Green v. Mansour, ........ A: aces, , 106 S. Ct. 423

Naira chekipiinnillteicanignnicianicntcesaincaiaibaaiinniion 4,6

Greenwood v. Peacock, 384 U.S. 808 (1966) ........ 6

Jain v. University of Tennessee at Martin, 670

F. Supp. 1388 (W.D. Tenn. 1987) ~........002.00........ 1

Mt. Healthy City School District Board of Educa-

tion v. Doyle, 429 U.S. 274 (1977) -2.2.-.-.eeeeeeeeeeee 3

Mitchell v. Forsyth, 472 U.S. 511 (1985) -..000.... 6

Pennhurst State School & Hospital v. Halderman,

ny I acai tassarrinnsecensissinesoncens 4,5

Quern v. Jordan, 440 U.S. 332 (1979) -.....0022222.2.... 4,5,6

Stokes v. The University of Tenn. at Martin, 737

S.W. 2d 545 (Tenn. App. 1987) ...................0........ 2

State Statutes

Tennessee Code Annotated § 20-13-102 —.......02..... 2, 3,5

Tennessee Code Annotated § 49-9-1001 —....000.2000.... 1

No. 87-1026

In the Supreme Court of the United States

OCTOBER TERM, 1987

RAYMOND STOKES,

Petitioner,

vs.

THE UNIVERSITY OF TENNESSEE AT MARTIN,

Respondent.

On PETITION FOR WRIT OF CERTIORARI TO THE

TENNESSEE SUPREME COURT =

BRIEF IN OPPOSITION

RESTATEMENT OF THE CASE

On May 18, 1984, petitioner filed a complaint in the

~ Weakley County, Tennessee Chancery Court against re-

spondent, The University of Tennessee at Martin! (“Uni-

versity”) challenging the University’s decision to termi-

nate his employment and seeking reinstatement, benefits,

back pay and attorney fees. The circumstances sur-

rounding the termination are unimportant for purposes

of this appeal. The complaint, as later amended, alleged

1. The University of Tennessee at Martin is a branch of

The University of Tennessee, Tennessee Code Annotated § 49-9-

1001, which is in turn an agency of the State of Tennessee.

Jain v. University of Tennessee at Martin, 670 F. Supp. 1388

(W.D. Tenn. 1987); Firemen’s Fund Ins. v. Bell Helicopter

Textron, 667 F. Supp. 583, 584 (E.D. Tenn. 1987); Carlson v.

Highter, 612 F. Supp. 603, 604, 605 (E.D. Tenn. 1985).

a violation of petitioner’s due process right under the

Fourteenth Amendment to the United States Constitution

and a cause of action under 42 U.S.C. § 1983.

The University subsequently filed a motion for sum-

mary judgment which asserted, in part, that petitioner’s

action was barred by the doctrine of sovereign immunity,

Tennessee Code Annotated § 20-13-102.2 On October 20,

1986, the Chancery Court granted the University’s motion,

finding, inter alia, that petitioner’s action was indeed

barred by the doctrine of sovereign immunity.

Following petitioner’s appeal of the trial court’s order,

the Court of Appeals for the Western Section of Tennes-

see affirmed the judgment of the trial court on the ground

that petitioner’s action was barred by the doctrine of

sovereign immunity. Stokes v. The University of Tenn.

at Martin, 737 S.W. 2d 545 (Tenn. App. 1987).

Subsequently, petitioner applied to the Tennessee

Supreme Court for permission to appeal the judgment

of the Court of Appeals. That application was denied

by order of the Tennessee Supreme Court on Septem-

ber 8, 1987.

2. Tennessee Code Annotated § 20-13-102 provides:

Actions against state prohibited.

(a) No court in the state shall have any power, juris-

diction, or authority to entertain any suit against the state,

or against any officer of the state acting by authority of

the state, with a view to reach the state, its treasury, funds,

or property, and all such suits shall ‘be dismissed as to

the state or such officers, on motion, plea, or demurrer of

the law officer of the state, or counsel employed for the

state.

(b) No statutory or other provision authorizing the Uni-

versity of Tennessee and its board of trustees to sue and

be sued shall constitute a waiver of sovereign immunity.

Petitioner now appeals the order of the Tennessee

Supreme Court, claiming that “(I]f the decisions of the

courts below are allowed to stand, petitioner could never

have a forum to protect his constitutional rights.” [Peti-

tion for Writ of Certiorari at p. 6.]

ARGUMENT

The Tennessee Court of Appeals for the Western Séc-

tion Correctly Held Petitioner’s 42 U.S.C. § 1983 Action

to Be Barred by the Doctrine of Sovereign Immunity

and the Tennessee Supreme Court Correctly Denied

Petitioner’s Application for Permission to Appeal

From That Judgment

It should be observed that petitioner does not con-

test the University’s status as an agency of the State of

Tennessee which, as an arm or alter ego of the state,

possesses the state’s sovereign immunity. See Mt. Healthy

City School District Board of Education v. Doyle, 429

U.S. 274, 280 (1977). Likewise, petitioner does not con-

tend that the courts below erroneously applied existing

state law to the case at bar. Quite to the contrary, peti-

tioner acknowledges that Article 1, Section 17 of the

Tennessee Constitution permits suits against the State of

Tennessee only as the legislature may direct, that Ten-

nessee Code Annotated § 20-13-102 expressly prohibits

lawsuits against the University and that, as a result,

Tennessee law prohibits petitioner from suing the state.

[Petition for Writ of Certiorari at pp. 6-7.]* In essence,

3. Petitioner also contends that the University violated

provisions of its Personnel Policies and Procedures Manual which

set forth employee rights to which he was entitled. However,

this issue was not addressed by the Tennessee appellate courts

and has no bearing on the resolution of the sovereign immu-

nity issue.

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petitioner asks this court to abolish the doctrine of sov-

ereign immunity in order that he might pursue his con-

stitutional claims directly against the University. The

premise on which petitioner’s prayer for relief rests is

completely erroneous.

At the outset, it should be noted that the doctrine

of state sovereign immunity is one which has been long

recognized and fully accepted by this court. See Green

v. Mansour, ........ US. ......... 106 S. Ct. 423, 425 (1985);

Atascadero State Hospital v. Scanion, ........ + See , 105

S. Ct. 3142, 3145 (1985); Pennhurst State School & Hospital

v. Halderman, 465 U.S. 89, 98 (1984); Quern v. Jordan,

440 U.S. 332, 342-45 (1979). In Atascadero, the court

reiterated that it is the fundamental principle of sovereign

immunity that limits the grant of judicial authority to

the federal courts and listed numerous cases wherein this

court has upheld the sovereignty of the state and its

immunity from suit. 105 S. Ct. at 3148 n. 3.

Petitioner seeks to circumvent the jurisdictional bar

imposed by the Tennessee state courts’ adherence to the

doctrine of sovereign immunity by seeking relief from

this court. However, such attempt to secure through the

federal courts that which petitioner is barred from ob-

taining through the Tennessee state courts succumbs to

the clear constraint imposed on the federal courts by

the Eleventh Amendment to the United States Consti-

tution:

The judicial power of the United States shall not

be construed to extend to any suit in law or equity

commenced or prosecuted against the United States

by citizens of another state or by citizens or subjects

of any foreign state.

This court has consistently held that an unconsenting

state is immune from suits brought in the federal courts

by her own citizens as well as by citizens of another

state. Edelman v. Jordan, 415 U.S. 651, 662-63 (1974).

See also Atascadero State Hospital, 105 S. Ct. at 3145,

3147-48; Pennhurst School & Hospital, 465 U.S. at 98-99;

Cory v. White, 457 U.S. 85 (1982); Quern v. Jordan,

440 U.S. 332, 337 (1978); Alabama v. Pugh, 438 U.S.

781, 782 (1978). The court has specifically held Eleventh

Amendment immunity to apply to constitutional claims

brought against the state pursuant to 42 U.S.C. § 1983.

For example, see Quern, 440 U.S. at 339-40; Pugh, supra;

Edelman, supra.

The State of Tennessee has not consented to be sued

under the Fourteenth Amendment or 42 U.S.C. § 1983

in either the state or federal courts, but, instead, has

expressly stated its will that no court in the state has

authority to entertain suits against the State of Tennessee.

Tennessee Code Annotated § 20-13-102. Such bar is ex-

pressly extended to suits against The University of Ten-

nessee. Id. No exception whatever is made for suits

alleging constitutional violations or suits brought pursuant

to 42 U.S.C. § 1983.

Petitioner offers no authority whatever for the prop-

osition that sovereign immunity or Eleventh Amendment

immunity does not or should not apply in a case where

a complainant pursues an action alleging deprivation of

constitutional rights including those guaranteed by the

Fourteenth Amendment. Nothing more is offered than

petitioner’s bare assertion that, should this court affirm

the sovereignty of the State of Tennessee, petitioner will

never have a forum in which to protect his constitutional

rights. Not only does petitioner fail to cite any authority

in support of his conclusion, but the conclusion flies

directly in the face of abundant authority to the contrary.

For example, this court has long and consistently held

that state officials who violate clearly established con-

stitutional rights are not immune from suit for damages

or other relief. For example, See Anderson v. Creighton,

iesitals US. ......... 107 S. Ct. 3034, 3038 (1987); Green, 106

S. Ct. at 426; Mitchell v. Forsyth, 472 U.S. 511, 528 (1985);

Davis v. Scherer, 468 U.S. 183, 191 (1984); Edelman, 415

U.S. at 676-77; Greenwood v. Peacock, 384 U.S. 808, 829-30

(1966). State officials have specifically been held sub-

ject to prospective injunctive relief. For example, Green,

106 S. Ct. at 426; Quern, 440 U.S. at 339; Edelman, 415

U.S. at 677.

In a nutshell, at the time petitioner commenced this

action he had the right to proceed in an action seeking

damages or other relief against any University official

shown to have violated petitioner’s clearly established

constitutional rights, but he failed to do so. Petitioner’s

failure to pursue an available remedy does not warrant

reversal of this court’s longstanding support of the doc-

trine of sovereign and Eleventh Amendment immunity.

CONCLUSION

For the foregoing reasons, petitioner’s petition for

writ of certiorari should be denied.

Respectfully submitted,

BEAUCHAMP E. BrROGAN*

General Counsel

The University of Tennessee