Opposition Brief — Hill v. Florida Department of Corrections

JAN 22 1988

No. 87-1044 ~ CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

JESSE HILL,

Petitioner,

Vv.

DEPARTMENT OF CORRECTIONS

STATE OF FLORIDA,

Respondent.

RESPONDENT'S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF FLORIDA

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

LOUIS F. HUBENER

ASSISTANT ATTORNEY GENERAL

COUNSEL OF RECORD

CRAIG B. WILLIS

ASSISTANT ATTORNEY GENERAL

DEPARTMENT OF LEGAL AFFAIRS

THE CAPITOL - SUITE 1502

TALLAHASSEE, FLORIDA 32399-1050

904/488-9935

ATTORNEYS FOR RESPONDENT

2) JOSEPH F. SPANIONL, Re

~

QUESTION PRESENTED FOR REVIEW

WHETHER A STATE AGENCY'S COMMON LAW

SOVEREIGN IMMUNITY IS A DEFENSE TO A

FEDERAL CIVIL RIGHTS ACTION BROUGHT

PURSUANT TO 42 U.S.C. SECTION 1983 AND

FILED IN STATE COURT.

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW i

WHETHER A STATE AGENCY'S COMMON

LAW SOVEREIGN IMMUNITY IS A

DEFENSE TO A FEDERAL CIVIL

RIGHTS ACTION BROUGHT PURSUANT

TO 42 U.S.C. SECTION 1983 AND

FILED IN STATE COURT.

TABLE OF CONTENTS ii

TABLE OF AUTHORITIES oe

STATEMENT OF THE CASE 1

SUMMARY OF ARGUMENT 4

ARGUMENT 6

CONCLUSION 19

CERTIFICATE OF SERVICE 20

oif4 «

TABLE OF CITATIONS

CASES PAGE(S)

City of Rdgewater. 13

477 So.2d 54 (Fla.App. 1985)

DeBleecker v. 11

Montgomery County,

438 A.2d 1348 tha. 1982)

Department of Corrections 1

v. Hill,

490 So.2d 118 (Fla. 3d DCA 1986)

DeVargas v. State ex rel. 10

N.M. Dept. of Corrections

640 P.2d 1327 (N.M. Ct.App. 1981)

Edelman v. Jordan, 10, 17

415 U.S. 651 (1974)

Edgar v. State, 1l

595 P.2d 534 (1979)

Ex parte State of 8

New York No. l,

256 U.S. 490 (1921)

Ex parte Young, 17

209 U.S. 123 (1908)

Gay v. State of Texas, 11

730 S.W.2d 154 (Tex.App. 1987)

Greene v. Friend of Court, 10

Polk County,

406 N.W.2d 433 (Iowa 1987)

Hill v. Department of l, 2e

Corrections, 14, 19

513 So.2d 129 (Fla. 1987)

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Karchefske v. Dept. of 1l

Mental Health,

371 N.W.2d 876 (Mich.App. 1985)

Kristensen v. Strinden, 1l

343 N.W.2d 67 (N.D. 1983)

Lloyd v. Hines, 13

74 So.2d 376 (Fla.App. 1985)

Maine v. Thiboutot, 17

U.S. 1 (1980)

Martinez v. California, 14, 15,

444 U.S. 277 (1980) 16

Mazzilli v. Doud, 13

485 So.2d 477 (Fla.App. 1986)

Merritt v. State, 10

696 P.2d 871 (Idaho 1985)

Metropolitan Dade County 13

v. Wolf,

274 So.2d 584 (Fla.App. 1973)

Monell v. Dept. of Social 17

Services of City of N.Y.,

436 U.S. 658 (1978)

Pyne v. Meese, 10

218 Cal.Rptr. 87 (1985)

Quern v. Jordan, 3, 6, 9,

440 U.S. 332 (1979) 10, 11, 16

Ramah Navajo School Board 1l

v. Bureau of Revenue,

720 P.2d 1243 (1986)

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Rankin v. Coleman, 13

476 So.2d 234 (Fla.App. 1985)

State v. Green, 10

633 P.2d 1381 (Alaska 1981)

42 U.S.C. Section 1983 2, 4, 6,

9, 10, 13,

5, 16, 17, 19

STATEMENT OF THE CASE

The Florida Supreme Court ruled that

Florida has not waived its immunity to a

federal statutory civil rights claim under

42 U.S.C. Section 1983. Hill v. Department

of Corrections, 513 So.2d 129 (Fla.

1987). The Florida Supreme Court rendered

its opinion in response to a question

certified by the District Court of Appeal,

Third District of Florida. The question

presented was:

Has the State of Florida,

pursuant to section 768.28,

Florida Statutes (1983), waived

its Eleventh Amendment and

state common law immunity and

consented to suits against the

State and its agencies under 42

U.S.C. §1983?

Department of Corrections v. Hill, 490

So.2d 118, at 120 (Fla. 3d DCA 1986).

While the Florida Supreme Court

primarily addressed the issue certified by

the Third District Court of Appeal, the

Supreme court did confront the issue

Petitioner seeks to have reviewed. Hill

had contended that the state has no common

law immunity against a suit brought under

federal law alleging the violation of a

federal constitutional right. The

Petitioner, at 7-8, states:

[T]he [Florida Supreme] Court

did not address the issues of

federal law which this case

raised. Rather, it reached its

decision that the common law

immunity of the state of

Florida and its agencies has

not been abrogated by 42 U.S.C.

Section 1983 without any

definitive authority to guide

it.

Petition at pp. 7-8.

However, the Florida Supreme Court in

Hill, supra, at 131, clearly stated:

At the outset, we note that

even though Quern was a federal

court action involving the

eleventh amendment, the United

States Supreme Court made the

statement in that case that

Congress, in enacting section

1983, did not intend “to

override the tradi’ ional

sovereign immunity of the

States." 440 U.S. at 341, 99

S.Ct. at 1145.

The Florida high court went on to cite,

and extensively quote from, a number of

state court decisions throughout the

country that had reviewed this issue and

which were in accord with the conclusions

reached in Quern v. Jordan, 440 U.S. 332

(1979).

SUMMARY OF ARGUMENT

Review of the decision of the Florida

Supreme Court is unwarranted because

neither Congress nor the Florida

Legislature has waived the state's

sovereign immunity from suit brought

pursuant to 42 U.S.C. Section 1983. There

is no conflict in case law on this issue.

While there may be philosophical

differences as to the need for state

liability under this civil rights statute,

this Court has previously reviewed this

issue and decided that Congress has not

expressed an intent to subject the states

to liability under this federal law.

Congress has the power to abrogate the

states' sovereign immunity pursuant to its

authority in the Fourteenth Amendment. And

pursuant to the supremacy clause contained

in Article VI of the Federal Constitution,

such law would be applicable to suits

brought in state court. However, Congress

has elected not to exercise that power.

Under these circumstances, further review

of this issue by this Court would be a

waste of judicial resources.

ARGUMENT

A GRANT OF CERTIORARI IS NOT

WARRANTED IN THIS CASE SINCE

THE DECISION OF THE FLORIDA

SUPREME COURT RELIES ON SETTLED

FEDERAL LAW AND THERE IS NO

CONFLICT BETWEEN THE FLORIDA

DECISION AND DECISIONS OF THIS

COURT OR OF OTHER FEDERAL

COURTS.

This Court settled the issue of whether

the states are subject to suit under 42

U.S.C. Section 1983 in Quern v. Jordan, 440

U.S. 332 (1979). The Court held that

Congress in 1871, in adopting a provision

which is now 42 U.S.C. Section 1983, did

not intend to override the traditional

sovereign immunity of the states and

subject them to liability under the Act.

In Quern the discussion of the nature of

the states' immunity was not limited to

Eleventh Amendment immunity. In reaching

its determination that Congress had not

<=>

expressed an intent to override the states'

traditional sovereign immunity, and that

the several states therefore were not

"persons" for purposes of the statute, this

Court stated:

Given the importance of the

States' traditional sovereign

immunity, if in fact the

members of the 42d Congress

believed that s.1l of the 1871

Act overrode that immunity,

surely there would have been

lengthy debate on this point

and it would have been paraded

out by the opponents of the Act

along with the other evils that

they thought would result from

the Act.

440 U.S. at 343.

While the Eleventh Amendment is a bar

to the exercise of the judicial power of

the federal courts, this Court has

recognized that Eleventh Amendment immunity

is merely an exemplification of the states'

traditional sovereign immunity directed

towards the federal courts. As stated in

Ex parte State of New York No. 1, 256 U.S.

490, at 497 (1921):

That a State may not be sued

without its consent is a

fundamental rule of

jurisprudence having so

important a bearing upon the

construction of the

Constitution of the United

States that it has become

established by repeated

decisions of this court that

the entire judicial power

granted by the Constitution

does not embrace authority to

entertain a suit brought by

private parties against a State

without consent given; not one

brought by citizens of another

State, or by citizens or

subjects of a foreign State,

because of the Eleventh

Amendment; and not even one

brought by its own citizens,

because of the fundamental rule

of which the Amendment is but

an exemplification.

It is readily acknowledged that

Congress has the authority under the

Fourteenth Amendment to abrogate the

states' Eleventh Amendment and traditional

sovereign immunity. If Congress were to

enact legislation making the states

"persons" for purposes of 42 U.S.C. Section

1983, a state could be subjected to

liability under the statute, regardless of

whether the suit was brought in federal or

state court.

In Quern, Justice Brennan realizing the

full implication of the majority's opinion,

attempted in dissent to characterize the

Court's conclusion that a State is not a

"person" for purposes of Section 1983 as

"patently dicta." However, the majority

opinion in response stated:

Mr. Justice BRENNAN's opinion

characterizes this conclusion

[that Congress did not intend

by the general language of s.

1983 to override the -

traditional sovereign immunity

of the States] as "gratuitous"

and “paten[t] dicta." Post, at

1150. But we cannot think of a

more "gratuitous" or useless

exercise of this Court's

discretionary jurisdiction than

to decide which of two

conflicting interpretations of

Edelman v. Jordan is correct,

if in truth we believed that

Edelman itself no longer were

valid. The question does not

arise out of the blue; it was

extensively discussed in our

brother BRENNAN's concurrence

in Hutto v. Finney last Term.

We therefore fail to see how

our reaffirmance of Edelman can

be characterized as "dicta."

440 U.S. at 341.

The state courts addressing this issue

have understood this Court's ruling and

have relied on Quern v. Jordan, supra, and

its predecessor, Edelman v. Jordan, 415

U.S. 651 (1974), in reaching the conclusion

that the states are not subject to

liability under 42 U.S.C. Section 1983.

See, e.g., Greene v. Friend of Court, Polk

County, 406 N.W.2d 433 (Iowa 1987); State

v. Green, 633 P.2d 1381 (Alaska 1981); Pyne

v. Meese, 172 <al.App.3d 392, 403, 218 Cal.

Rptr. 87, 92 (1985); Merritt v. State, 696

P.2d 871 (Idaho 1985); DeVargas v. State ex

rel. N.M. Dept. of Corrections, 640 P.2d

- 10 -

1327 (N.M. Ct. App. 1981); Karchefske v.

Dept. of Mental Health, 371 N.W.2d 876

(Mich. App. 1985); Gay v. State of Texas,

730 S.W.2d 154 (Tex.App. 1987); DeBleecker

v. Montgomery County, 438 A.2d 1348 (Md.

1982); Kristensen v. Strinden, 343 N.W.2d

67 (N.D. 1983).

This Court has denied certiorari in

instances where Petitioners have sought to

have this issue reviewed again. See, e.g.,

Ramah Navajo School Board v. Bureau of

Revenue, 720 P.2d 1243 (N.M. App. 1986),

cert. denied, U.S. , 107

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

State, 595 P.2d 534 (1979), cert. denied,

444 U.S. 1077, 100 S.Ct. 1026, 62 L.Ed.2d

760 (1980). Unless this Court is now of

the view that its position expressed in

Quern v. Jordan should be reversed, the

petition for writ of certiorari in this

case should be denied.

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Petitioner attempts to make a number of

points why this Court should review the

decision of the Florida Supreme Court.

Under his first ground for granting review,

in discussing concurrent jurisdiction over

federal constitutional claims, Petitioner

makes the following statement:

The Court has, however, never

considered the question of

whether a state must entertain .

a claim under Section 1983.

Petition at 9.

At best, Petitioner does not understand

that concurrent jurisdiction is a distinct

concept from sovereign immunity. The

question of whether a state court must

exercise its jurisdiction to hear a federal

constitutional claim is simply not an issue

in this case. The Florida Supreme Court

did not refuse to exercise its jurisdiction

to decide the Petitioner's 1983 claim. It

simply ruled that there was no claim

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against the state as distinct from

individual employees of the state whose

actions may have violated Section 1983.

The claim must be against an individual, a

person, not the state itself. The Florida

courts historically have exercised their

concurrent jurisdiction to hear civil

rights claims. See, e.g., Mazzilli v.

Doud, 485 So.2d 477 (Fla.App. 1986); City

of Edgewater, 477 So.2d 54 (Fla.App. 1985);

Lloyd v. Hines, 474 So.2d 376 (Fla.App.

1985); Rankin v. Coleman, 476 So.2d 234

(Fla.App. 1985); Metropolitan Dade County

v. Wolf, 274 So.2d 584 (Fla.App. 1973),

cert. denied, 414 U.S. 1116, 94 S.Ct. 849,

38 L.Ed.2d 743 (1973). Only if a Florida

court refused to hear a 1983 claim would

this issue be a basis upon which to

petition this Court for review on a writ of

certiorari.

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Petitioner likewise misinterprets

Martinez v. California, 444 U.S. 277

(1980). Petitioner cites a number of

decisions of this Court in support of the

proposition that the Supremacy Clause

requires that federal law and policy be

applied by the state courts. Petition

pages 14 through 16. Respondent State of

Florida has no quarrel with that

principle. However, Petitioner cites

Martinez v. California, supra, as the only

decision with which the decision of the

Florida Supreme Court in Hill v. Dept. of

Corrections is allegedly in conflict.

While Petitioner fails to elucidate the

exact nature of the conflict, it would

appear that he is contending that allowing

the state's sovereign immunity to bar a

1983 suit against the state conflicts with

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this Court's decision in Martinez. The

pertinent language of that decision is set

forth in the Petition as follows:

Conduct by persons acting under

color of state law which is

wrongful under 42 U.S.C.

Section 1983 . . . cannot be

immunized by state law. A

construction of the federal

statute which permitted a state

immunity defense to have

controlling effect would

transmit a basic guarantee into

an illusory promise; and the

supremacy clause of the

Constitution insures that the

proper construction may be

enforced.

The problem with Petitioner's inference

is that Congress has not expressed an

intent to make the states "persons" for

purposes of 42 U.S.C. Section 1983. The

Supremacy Clause has operative effect when

there is a controlling constitutional

provision or law of the United States

enacted pursuant thereof to bind state

court judges. Obviously, if Congress

- 15 =-

amended 42 U.S.C. Section 1983, pursuant to

its authority under the Fourteenth

Amendment, to make the states “persons” for

purposes of that statute, then clearly the

state courts would be bound thereby. Such

is not the law. If the Florida Supreme

Court's decision in Hill is in conflict

with this Court's decision in Martinez,

then Quern is also in conflict with

Martinez, and this is certainly not the

case.

Petitioner's final contention that the

states' sovereign immunity results in the

total foreclosure of any forum, state or

federal, for the redress of civil wrongs is

not the law. A suit may be properly

brought against a state official in his

“personal capacity" for a violation of an

individual's civil rights for monetary,

declaratory, or injunctive relief. There

is no constitutional impediment to civil

- 16 =-

rights actions against local governments

which are not part of the state for

Eleventh Amendment purposes. Monell v.

Dept. of Social Services of City of N.Y.,

436 U.S. 658 (1978). Injunctive relief is

available against state officials. Edelman

v. Jordan, 415 U.S. 651 (1974); Ex parte

Young, 209 U.S. 123 (1908). Attorney's

fees are available in actions brought on

behalf of persons who are deprived, under

color of state law, of a right secured by

the Constitution and laws of the United

States whether brought in federal or state

court. Maine v. Thiboutot, 448 U.S. l

(1980).

Congress may at some point decide to

subject the states to 1983 claims; however,

it has not taken this step. Congress has

been on notice for a number of years as to

this Court's interpretation of the word

“person” as used in 42 U.S.C. Section 1983

- 17 -

and its non-applicability to the several

states. Plaintiffs' Bar over the years has

sought new ways into the states' coffers,

but it is Congress that holds the key to

the states' treasuries. And Congress has

expressed no intent to use that key.

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OP een,

° ne A ee RE te

REAR Rs SR

CONCLUSION

The Florida Supreme Court's decision in

Hill v. Dept. of Corrections is consistent

with decisions of this Court and other

federal courts finding that the states'

sovereign immunity bars liability from an

action brought pursuant to 42 U.S.C.

Section 1983. Congress has expressed no

intent to abrogate the states' immunity.

Under these circumstances, and in the

absence of decisional conflict, certiorari

review should be denied.

Respectfully submitted this 2a day

of January, 1988.

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

LOUIS -F. HUBENER

Assistant Attorney General

Department of Legal Affairs

The Capitol - Suite 1502

Tallahassee, Florida 32399-1050

904/488-9935

COUNSEL OF RECORD

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct

copy of the foregoing RESPONDENT'S BREIF IN

OPPOSITION TO PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA has been

furnished, by U. S. Mail, to Gregg J. Ormond,

Esquire, Lisk & Ormond, 200 Aragon Avenue,

Coral Gables, Florida 33134, Attorney for

Petitioner, this 2.nr4 day of January, 1988.

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

LOUIS F. HUBENER

Assistant Attorney General

Counsel of Record

CRAIG B. WILLIS

Assistant Attorney General

Department of Legal Affairs

The Capitol - Suite 1502

Tallahassee, Florida 32399-1050

904/488-9935

ms a

Attorneys for Respondent

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