# Opposition Brief — Hill v. Florida Department of Corrections > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0597%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1988 - **Citation:** 484 U.S. 1064 ## Text 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) ~- $11 - 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) =o ie « 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