Petition for Writ of Certiorari — Skoblow v. Ameri-Manage, Inc.

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87 ha & o 4 Supreme Court, U.s,

FILED

IN THE FEB 29 j9R9

Supreme Court of the United States" Favor

OctToBeR TERM, 1987

Mavurice SKOBLow,

Petitioner,

AMERI-ManacGeE, INc.,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

Ropert WEISBERG

Davin Lipman

Lipman & Weisberg, P.A.

Suite 304

5901 S.W. 74th Street

Miami, Florida 331438

(305) 662-2600

SHaronN WOLFE

Cooper, Wolfe &

Bolotin, P.A.

500 Roberts Building

28 West Flagler Street

Miami, Florida 33130

(305) 371-1597

Jutius LEVoNNE CHAMBERS

Eric SCHNAPPER*

NAACP Legal Defense

Fund, Ine.

99 Hudson Street

16th Floor

New York, New York 10013

(212) 219-1900

Attorneys for Petitioner

*Counsel of Reeord

QUESTIONS PRESENTED

: Does the Eleventh Amendment, or

any other constitutional doctrine, confer

upon the states immunity from. suits

brought by their own citizens?

as Should Hans _v. Louisiana, 134

U.S. 1 (1890) or Quern v. Jordan, 440

U.S. 332 (1979), be overruled?

3 Did Congress, in enacting the

i871 Civil Rights. Act, intend to

authorize section 1983 suits against

states in state court?

PARTIES

The petitioner in this Court is

Maurice Skoblow. The respondent is

Ameri-Manage, Inc., a Florida corporation

which the state courts below concluded

was, for Eleventh Amendment purposes, an

agency of the state of Florida.

In the proceedings below petitioner

also sought relief against six

individuals: Robert A. Burton, John

Pitreiii-; Elsa Dominguez, Barbara

McMurtrey, Jackie Dale and Paul Uhrig.

The claims against those individuals were

dismissed on grounds unrelated to the

Eleventh Amendment issue which is the

subject of this petition.

TABLE OF CONTENTS

Page

Questions Presented ......-- “ 1

et”) eee ee ee ee ii

Table of ContentS ....-+-ccececes iil

Table of Authorities ......... Vv

Opinions Below ....---+eeeees ; 2

FUTISGICCION .ccccccccscseseces 2

Constitutional and Statutory

Provisions Involved........ 3

statement of the CaS@ ..-eeees 3

Reasons for Granting the

gg a are ee 9

CONCLUSION .ecceeeeeeeeees peede 42

Ars ENDI A

Florida Supreme Court

Opinion, Spooner v.

Department of Correc-

tions and Skoblow v.

Ameri-Manage, Inc.,

September 24, 1987,

rehearing denied

December 1, 1987 ..-+-eee-- la

i111

. rr

i 4 Fi) }’* | |

. y ~~ ~} ,

| ) J i li, p L) J Ww

™

* ‘ -VManacre nan tie

> 4048 a4 ; A 44% .

> a eo 46 f

sal pf , 4 ; eecees

f Florida Circuit

irt ranting Partial

mmary Judgment,

koLlow v. Ameri-Manage

nts * on same’

; ine «z 19S$5) e-«

TABLE OF AUTHORITIES

Cases: Page

Alabama v. Pugh, 438 U.S. 781

Vi gi $ SPREE OEP ETE TS eT Tere 33

Atascadero State Hospital

v. Scanlon, 473 U.S. 234

bi} PEPE ETE eT reer 16,17,

Bailey v. Ohio State Univer-

Sity, 487 F. Supp. 601

(6.0. Chie 19061 .0-sccsc 34

Board of Regents v. Roth, 408

U.S. 564 (1972) cccssvscecess 6

Boldt v. State, 305 N.W.2d

133, 101 Wis.2d 566,

cert. denied 454 U.S. 973

(iSG40 SS wee a eae eee 32,38

Brody v. Leamy, 393 N.Y.S.2d

243, 90 Misc.2d 1 (Sup. Ct.

Dutchess Cty. 1977)........ i2,39

Brown v. Supreme Court of

Nevada, 476 F. Supp. 86

(D. Nev. 1979) -cccsscoscece 34

Brown v. Wood, 592 P.2d 1260

(Alaska 1979) .ccccccccscece 30,37

Codd v. Velger, 429 U.S. 624

£30993 3 is vasa ceed ee 6

Cohens v. Virginia. 6 Wheat.

264 (1821) . cece eee ne nencess 19,20

Della Grotta v. State of Rhode

Island, 781 F.2d 343 (1s

Cir. 1986) -ccccccccscccccccs 34

DeVargas v. State, 97 N.M.

563, 640 P.2d 1327

(Ct. App. 1981)... eeeeeees 33,37

Edelman v. Jordan, 415 U.S.

651 (1974) ~.c. cece cerceessces 10,15,20,

27,29,33,40

Edgar v. State, 92 Wash.2d

217, 595 P.2d 534 (1979)... 33,35

Employees v. Missouri Public

Health Dept., 411 U.S. 279

1197S) cv caveccetsctcteuseveeat 10,14,21,

22,26,27

Fitzpatrick v. Bitzer, 427

U.B. 445 (1976) occcncsssve ; 15

Florida Dept. of State v.

Treasure Salvors, Inc.,

458 U.S. 670 (1982).......- 15,17

Gittens v. State, 504 N.Y.S.

2a 969 (Ct. Cl. 1986).....- 12

Gumbhir v. Kansas State

Bd. of Pharmacy, 646

P.2d 1078, 231 Kan. 507

(1982) .. cece cere reenneecees 29,31,36

Page

Hampton v. State of Michigan

Dept. of Corrections, 377

N.W.2d 920, 144 Mich.

ae ae | ee 29,32,35,

37,38

Hans v. Louisiana, 134 U.S. 1

(18OO) cccccccccsccsecsceces Passim

Hill v. Department of

Corrections, 513 So.2d

129 (FPla@.-. 1987) wcccccccece 9,40

Hutto v. Finney, 437 U.S. 678

PROTON No cs keke en eee keuewes 17,25

Irwin v. Calhoun, 522 F. Supp.

576 (D. Mass. 1981)........ 34

Kapil v. Ass'n of Pa. State

College, 448 A.2d 717,

68 Pa. Commonw. 287

Karchefske v. Dept. of Mental

Health, 371 N.W. 2d 876

(Mich. App. 1985).......... 1,

Kristensen v. Striden, 343

N.W.2d 67 (N.D. 1983)...... Y> Per P

Maine v. Thiboutot, 448 U.S.

. SIGs oeaadee ieee en enke 24,25,30,

38,39

Maldonado v. Nebraska Dept.

of Public Welfare, 223

Meh. 408 (AS66) oc cncctcces 30

Vili

Cases: Page

Marrapese v. Rhode Island,

500 F. Supp. 1207 (D.R.1.

19BO) cccccccsescsccecccocs 34,36

Martinez v. California, 444

U.S. 277 (1980) .---eeeeeees 25,41

Merritt for Merritt v. State,

696 P.2da 871, 108 Idaho 20

(1985) .cccccccccccccscccoce 33,35

Mezey v. State, 208 Cal.

Reptr. 40, 161 Cal. App.

3a 1066 (Cal. App. 1 Dist.

.:):) 9 ee 33

Mossman v. Donahey, 346 N.E.

305, 46 Ohio St. 2d 1

CEDIGS cccdcdeoeneesssecrcees 11

Oneida v. Oneida Indian

Nation, 470 U.S. 226

(EGORA ccc cnasccavesccesiees 50

Osborn v. Bank of United

States, 9 Wheat 738

(1824) .. ewer ene ceeercccess 19,20

Papasan v. Allain, 92 L.Ed.2d

209 (1986) .cccccccccccccess 17

Parden v. Terminal R. Co. of

Alabama Docks Dept., 377

U.S. 184 (1964) ..-ee+eeeees 10,14,

Pennhurst State School & Hosp.

v. Halderman, 465 U.S. 89

(1984) cccccccccccccsocccces 15,27

Cases: Page

Private Truck Council of

America v. Quinn,

90 L.Ed.2d 677 (1986)...... 25

Pynne v. Meese, 218 Cal. Rptr.

87, 172 Cal. App. 3d 402

(Cal. App. 3 Dist. 1985)... i3,33

Quern v Jordan, 440 U.S. 332

‘pr, | PURE Pere errr rere rr re 8,22,29,

: 32-36,40

Ramah Navajo School Bd. v.

Bureau of Revenue, 720

P.2d 1243, 104 N.M. 302

(N.M. App.), cert. denied,

S67 6.60. GES CROOG) 0-00 0008 29,31,37

R. I. Affiliate Am. Civil

Liberties v. R. I. Lottery,

553 F. Supp. 752 (D.R.I.

yr § eae eee et ee paras eee 34

Shapiro v. Thompson, 394 U.S.

ROS CO 5 a ob dk 6 ka 0 20

Smith v. State, 122 Mich.

App. 340, 333 N.W.2d 50

F2SES) caccevicseasscsvse so 20,36,37

State v. Green, 633 P.2d

1381 (Al@GRA 1981) .ccccscscs 33,35,

36,37

Thompson v. New York, 487

F. Supp. 212 (N.D.N.Y.

1979) cccccccecccsecseceseces 34

Cases:

Verner v. State of Colorado,

533 F.Supp. 1109, 1113

(D. Colorado (1982)........ 34

Welch v. Dept. of Highways

and Public Transp., 9?

be Oe SEO. CIONT Ya seek i ews 16,18,19,

Woodbridge v. Worcester State

Hospital, 384 Mass. 38,

423 N.E.2d 782 (1981)..... pe ae

Yeomans v. Kentucky, 423 U.S.

Ce a3) oe Pere ee eer eee 15

Other Authorities

Article III, United States

Cemnetitutionh. .i<cevctvenecass 16

Eleventh Amendment, United

States Constitution....... Passim

Civil Rights Attorney's Fees

Act Of 1976....--e-6- see eee 24

Rehabilitation Act Amendments

of 1986, Pub. L. No.99-506,

§ 1003, 100 Stat. LEOGs «es 21

Vocational Rehabilitation

re eer a toa ee ee a eo a 28

20. UsctaG S L297 Coos cee ves ewes 2

o U.ese © Bae “apis eee enna eee 1

4 <i ase eh: eer es os ee Pass1m

i a

No. 87

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

MAURICE SKOBLOW,

PETITION FOR WRIT OF CERTIORARI

lO THE SUPREME COURT OF FLORIDA

The petitioner, Maurice Skoblow,

sSspectfully prays that a writ of

certiorari issue t review the judgments

Supreme Court of

la enter n this proceeding on

ind December 1, 1987.

OPINIONS BELOW

The decision of the Florida Supreme

Court is reported at 514 So.2d 1077, and

is set out at pp. la-4a of the Appendix.

The opinion of the Florida District Court

Appeal is reported at 483 So.2d 809,

set out at pp. 5a-18a of the

The opinion of the Florida

~ it curt, which is not reported, is

it at pp. 19a-20a of the Appendix.

JURISDICTION

The original decision of the Florida

Supreme Court was entered on September

24, 1987. A timely petition for

rehearing was denied on December 1, 1987.

Jurisdiction of this Court is invoked

under 28 U.S.C. § 1257(3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Eleventh Amendment provides:

The Judicial power of the

United States shall not be

construed to extend to any suit

in law or equity, commenced or

prosecuted against one of the

United States by citizens of

another state, or by citizens

or subjects of any _ foreign

state.

Section 1983 of 42 U.S.C. provides:

Every person who, under color

of any statute, ordinance,

regulation, custom, or usage,

of any state or territory,

subjects, or causes to be

subjected, any citizen of the

United States or other person

within the jurisdiction thereof

to the deprivation Of ny

rights, privileges

immunities secured |:

Constitution and laws, :

liable to the party injured i

an action at law, suit in

equity, Or other

proceeding for redress.

)

STATEMENT OF THE CASE

This action arose out of

dismissal cf petitioner from

employment as a dentist at the South

Florida State Hospital. On February 13,

1981, petitioner was summarily fired for

alleged “inadequate performance" in

carrying out his duties, and was notified

that under state law he had no right to

appeal that action.+ Although the notice

of dismissal contained no- specific

charges of misconduct, a _ subsequent

newspaper article quoted various

supervisory officials at the state

hospital as making a variety of specific

and serious charges against petitioner,

including taunting patients, use of

unsterilized instruments, and performing

unnecessary dental work. Petitioner

brought this suit in the Florida Circuit

2 Third Amended Complaint for

Damages, Exhibit B.

2 Id., Exhibit C.

Court for the Eleventh Judicial Circuit;

count II of his complaint, labeled

"action under 42 U.S.C. 1983 et seq.,"

alleged that the defendants had violated

his "rights to due process of law

guaranteed him by the Fourteenth

Amendment to the United States

Constitution. "3 Specifically petitioner

alleged that he had not been provided

"with any notice of the charges made

against him ..., nor with the opportunity

to be heard on them and to demonstrate

their falsity," and that the charges "by

their nature stigmatized the [petitioner]

and cast a shadow on his’ professional

record and qualifications, and have

restricted his liberty to seek other

employment in his profession."4

The complaint named as defendants,

in addition to several individuals,

Ameri-Manage, Inc.? Ameri-Manage is a

corporation to which Florida had by

contract delegated responsibility for

managing the operations of Florida State

Hospital. The Hospital Administrator and

the 10 other most important

administrators at the hospital were

technically employees of Ameri-Manage,

Inc., rather than of the hospital; aside

from this financial arrangement, however,

these key administrators acted as

hospital staff. The contract authorized

4 Board of Regents v. Roth, 408

U.S. 564, 573-74 (1972); Codd v. Velger,

429 U.S. 624, 626-28 (1977).

5 Id. at 5-6. The complaint also

contained a state law claim for

defamation. Id. at 1-5.

Ameri-Manage, Inc., to hire and fire

hospital employees and to establish the

hospital's termination procedures. App.

15a-16a.

The defendants moved in the Circuit

Court for partial summary judgment on a

variety of grounds, arguing, inter alia,

that Ameri-Manage, Inc. was ae state

agency, and thus could not be sued in a

state court section i983 action because

of the Eleventh Amendment. ® Ameri-

Manage, Inc., was represented throughout

the state court proceedings by the

Attorney General of Florida. The Circuit

Court granted the motion, but issued no

opinion explaining its decision. (App.

19a-20a). The claims against the

individual defendants were ultimately

6 Memorandum in Support of Motion

for Partial Summary Judgment, pp. 9-14.

dismissed on a variety of grounds not

relevant to this appeal. The Florida

District Court of Appeal concluded that

"Ameri-Manage was operating as an agency

of the state at the time of

[petitioner's] discharge" (App. 16a), and

held that state agencies were immune from

section 1983 suits in state court:

Absent an unequivocal

expression of intent by either

the United States Congress to

overturn ae state's eleventh

amendment immunity, or a state

legislature to waive the

state's sovereign immunity, a

state and its agencies are

immune from civil rights

actions brought against them

pursuant to section 1983 in

both federal and state courts.

See Quern v. Jordan....

(App. 12a). The Florida Supreme Court

affirmed, holding that Ameri-Manage,

Inc., aS a state agency, was “immune

under the eleventh amendment and the

common law from suits arising under the

federal Civil Rights Act, 42 U.S.c. §

19863.* (App. 4a. The Florida Supreme

Court relied in part on its decision in a

companion case, Hill v. Department of

Corrections, 513 So.2d 129 (Fla. 1987).

REASONS FOR GRANTING THE WRIT

A century ago Hans v. Louisiana, 134

U.S. 1 (1890), held that the Eleventh

Amendment was not, as its’ language

suggested, a simple repeal of the

citizen-state diversity clause of Article

III, but constituted a charter for

constitutionalizing far broader notions

of state sovereignty and immunity. Over

the decades which followed the Eleventh

Amendment served increasingly as a

vehicle for reading into the federal

Constitution, and most recently into a

variety of federal statutes, restrictions

forbidding or limiting suits against

states. Although frequently conceding

that the Eleventh Amendment was "not

literally applicable" to suits against a

state by its own citizens, this Court

repeatedly relied on the Amendment, or

doctrines of state sovereignty emanating

from it, to hold that federal statutes

expressly directed at controlling state

conduct did not authorize federal suits

against the states which violated those

laws. Edelman v. Jordan, 415 U.S. 651,

653 (1974); Employees v. Missouri Public

Health Dept., 411 U.S. 279, 280 (1973);

cf. Parden v. Terminal R. Co. of Alabama

Docks Dept., 377 U.S. 184, 186 (1964).

In this case, just as in Edelman,

Employees, and Parden, a mere literal

reading of the Eleventh Amendment would

compel the conclusion that the Amendment

is inapplicable, since the action was not

only brought against Florida by one of

its own citizens, but was filed in state

rather than federal court. The Florida

courts, however, using the method of

analysis sanctioned by Hans and its

progeny, relied on the Eleventh

Amendment, as have other state courts, to

construe section 1983 to preclude suits

against a state brought in state court by

citizens of that very state. A number of

state courts have gone so far as to hold

that the Eleventh Amendment is actually

applicable to state Judicial

proceedings.’ The decision below

7 Mossman v. Donahey, 346 N.E. 2d

305, 315, 46 Ohio St.2d 1 (1976):

"It appears to this court to

remain the law under the

Eleventh Amendment that a-state

may not be sued for damages by

an individual under federal

law, without its consent, and

that this principle applies

equally to state as well as

federal courts."

(footnote omitted).

Gittens v. State, 504 N.Y.S. 2d 969, 973

(Ct. Cl. 1986):

"‘Ajssuming arguendo that the

State is a 'person' subject to

suit under § 1983 ... the State

remains protected by the

Eleventh Amendment. I thus

hold that an inmate may not

bring an action in the Court of

Claims alleging section 1983

deprivations of civil rights."

Brody _v. Leamy, 393 N.Y.S. 2d 243, 262,

and n. 8, 90 Misc. 2d 1, 28 and n. 8

(Sup. Ct. Dutchess Cty. 1977), held that

whenever a civil rights judgment against

a state official would in fact be paid

with state funds, pursuant to a state

indemnification law:

"the court would conclude that

upon the instant claim (and

solely within the meaning of

Section 1983) the state is the

real party in interest, and by

virtue of the Eleventh

Amendment no cause of action

exists in any court of this

state.... If plaintiff were

accorded a trial and prevailed,

and, further, if the State paid

the judgment by operation of

illustrates the extraordinary results to

which Hans and its progeny can lead.

Certiorari should be granted to limit the

Eleventh Amendment, and its emanations,

to cases which fall within the literal

language of the Amendment itself.

statutory mandate, public funds

have been expended and the

Eleventh Amendment bars’ the

action."

See also id. at 262 (holding, apparently

in the alternative, that if the Eleventh

Amendment does not literally apply, the

state courts should nonetheless utilize

Eleventh Amendment rules "by a parity of

reasoning" to assure that no relief is

available in state court which would be

forbidden by the Amendment in federal

court). Cf. Pyne v. Meese, 218 Cal.

Rptr. 87, 92, 172 Cal. App. 3d 402 (Cal.

App. 3 Dist. 1985) (state court section

1983 action not permitted against a state

both because “a state is not a 'person'

under section 1983" and because "[t]he

bar of the Eleventh Amendment has not

been eroded"). Several state courts hold

that the states enjoy a form of immunity

in state court from whatever relief which

would be barred by the Eleventh Amendment

if the action were brought in federal

court. See n. 14, infra.

}—

A quarter century ago all nine

members of this Court were of the view

that “an unconsenting state is immune

from federal-court suits brought by its

own citizens as well as by citizens of

another State," Parden Vv. Terminal

Railway of Alabama Docks Dept., 377 U.S.

4, 186 (1964), an immunity which the

urt then believed had been derived from

the Eleventh Amendment by the 1890

)

decision in Hans v. Louisiana, 134 U.S. l

1890). In 1973, however, Justice

nal

)

elying on the pre-1890

decisions of this Court regarding the

leventh Amendment, urged that neither

+ }. + Amo “a <_< - ~- a, athe ~s nn £

that Amenament nor any otner portion of

+ anna} eHankear — = + }

the constitution conferred upon the

279, 309-24 (1973) (dissenting opinion) .8

In March, 1985, Justice Marshall joined

Justice Brennan in urging that the states

possessed no such immunity. Oneida v.

Oneida Indian Nation, 470 U.S. 226, 254

(1985) (dissenting opinion). Three

months later, in June 1985, Justices

Brennan, Marshall, Blackmun and Stevens

joined in an exhaustive historical

analysis of the Eleventh Amendment, which

concluded that the constitutional

immunity of states applied only to

diversity actions brought by citizens of

8 See also Yeoman v. Kentucky,

423 U.S. 983 (1975) (dissenting opinion) ;

Edelman _v. Jordan, 415 U.S. 651, 687

(1974) (Brennan, J., dissenting) ;

Fitzpatrick v. Bitzer, 427 U.S. 445, 457

(1976) (Brennan, J., concurring); Florida

Dept. of State v. Treasure Salvors, Inc.,

458 U.S. 670, 700 (1982) (Brennan, J.,

concurring in part and dissenting in

part); Pennhurst State School & Hosp., v.

Halderman, 465 U.S. 89, 125 (1984)

(Brennan, J., dissenting).

other states. Atascadero State Hospital

v. Scanion, 473 U.S. 234, 247 (1985)

(dissenting opinion). Two of the five

justices who made up the Atascadero

majority have since retired; Justice

Scalia has so far expressly declined to

take a position regarding this

controversy, Welch v. Dept. of Highways

and Public Transp., 97 L.Ed.2d 389, 411

(1987) (concurring opinion), and Justice

Kennedy has had no opportunity to express

an opinion on the issue.

Thus at this point in time only

three members of this Court expressly

continue to adhere to the view that the

Eleventh Amendment, or some implicit

assumption underlying Article III,

immunizes a state from federal suits by

its own citizens. The plurality view is

now to the contrary. This unusual

situation regarding a major issue of

constitutional law would be sufficient to

warrant review even if further

implementation of the majority view in

Atascadero were a simple matter. The

implementation of the Eleventh Amendment,

however, has proved anything but simple;

this Court has constantly been closely

divided regarding what types of orders

violate that Amendment, and what types of

statutes lift a state's immunity. See,

e.g., Florida Dept. of State v. Treasure

Salvors, Inc., 458 U.S. 670 (1982) (Court

divided 5-4 regarding propriety of

disputed order; no majority opinion);

Papasan v. Allain, 92 L.Ed.2d 209 (1986)

(four different opinions regarding

propriety of disputed order); Hutto v.

Finney, 437 U.S. 679 (1978) (Court

divided 5-4 regarding whether Congress

lifted state's immunity). Over the last

decade this Court has erected an

increasingly complex superstructure of

Eleventh Amendment jurisprudence on an

ever more shaky constitutional

foundation.

In Welch Justice Scalia suggested

that the complex questions raised by Hans

and its progeny should be deferred until

this Court had before it a dispute

concerning the interpretation of a

statute enacted prior to the 1890

decision in Hans. This is such a case.

The question presented by this petition

concerns whether a state can be _ sued

under 42 U.S.C. § 1983, originally

enacted as part of the Civil Rights Act

of i871. As of 1871 the reigning

interpretation of the Eleventh Amendment

was that set forth by Chief Justice

Marshall in Cohens v. Virginia, 6 Wheat.

264 382-83 (1821) and Osborn v. Bank of

United States, 9 Wheat. 738, 857-58

(isZz4). Regardless of whether, as

Justice Powell urged in Welch, 97 L.Ed.2d

at 402 n. 11, the holdings in Cohens and

Osborn were dicta, a member of Congress

in 1871 would surely have understood

those decisions to hold that the Eleventh

Amendment had merely repealed the

citizen-state diversity clause of Article

III, and that the Amendment would thus be

of no relevance to cases arising under

the statutes and Constitution of the

United States. Hans undeniably changed,

or began to change all that in 1890, but

in 1871 Cohens and Osborn had _ been

adhered to without exception by this

Court for almost half a century, and

Congress could not have anticipated that

they would be overruled some 19 years

later.

While the principle of stare decisis

ordinarily militates against

reconsideration of reigning

constitutional doctrine, Eleventh

Amendment jurisprudence has shifted so

frequently that it would be inappropriate

now to rely on stare decisis to freeze in

place a view of the Amendment no longer

accepted by a majority of this Court.

Hans v. Louisiana, as currently

construed, effectively overruled Cohens

and Osborn. Edelman v. Jordan, 415 U.S.

651, 670 (1974), overruled Shapiro v.

Thompson, 394 U.S. 618 (1969) and three

other per curiam decisions. Welch v.

Dept. of Highways and Public’ Transp.

overruled Parden v. Terminal Railway of

Alabama Docks Dept.

The rule of construction which has

derived from Hans, which presumes, absent

exceptionally clear evidence to the

contrary, that Congress did not intend to

subject the states to suit under a given

statute, has not proven to be a

particularly reliable method of

ascertaining congressional intent. The

majority's interpretation of the

Vocational Rehabilitation Act in

Atascadero State Hospital, for example,

was, promptly overturned by Congress, ? as

was the interpretation of Fair Labor

Standards Act in Employees v. Missouri

Public Health Dept., 411 U.S. ai

(1973),+9 and this Court concluded in

9 Rehabilitation Act Amendments

of 1986, Pub. L. No. 99-506, § 1003, 100

Stat. 1807.

10 29 U.S.C.§ 216(b) (1987

Cumulative Annual Pocket Part), Pub. L.

93-259, § 6(da)(1).

Welch that it had misapplied that rule in

Parden. In any event, the application to

an 1871 statute of a rule of construction

which is based on the 1890 decision in

Hans, and which was not clearly announced

by this Court until at least the 1973

decision in Employees, is clearly an

anachronism. Quern v. Jordan, 440 U.S.

332 (1979), which held that Congress did

not intend to authorize federal courts to

hear section 1983 suits against states,

reasoned in part as follows:

fNjeither Logic, the

circumstances surrounding the

adoption of the Fourteenth

Amendment, nor the legislative

history of the 1871 Act compel,

or even warrant, a leap .... to

the conclusion that Congress

intended by the general

language of the Act to overturn

the constitutionally guaranteed

immunity of the several

states.... [N]ot one Member of

congress mentioned the Eleventh

Amendment.... Our cases

consistently have required a

clearer showing of

congressional purpose to

abrogate Eleventh Amendment

immunity.... § 1983 does not

explicitly and in clear

language indicate on its face

an intent to sweep away the

immunity of the States; nor

does it have a history ...

which shows that Congress

considered and firmly decided

to abrogate the Eleventh

Amendment immunity of the

States.

440 U.S. at 342-45. Since the states in

1871 had no Eleventh Amendment immunity

in cases arising under the federal

question clause of Article III, the

failure of the 42nd Congress to "consider

the Eleventh Amendment immunity of

the states" is hardly surprising.

As the extension of Hans has taken

the interpretation of the Eleventh

Amendment ever further from the actual

terms of the Amendment, confusion and

disagreements have become increasingly

inevitable. The instant case was brought

in state court, a circumstance which

should surely have made the Eleventh

Amendment entirely irrelevant, since the

Amendment concerns only "[tjhe judicial

power of the United States." The

decisions of this Court have repeatedly

assumed that a plaintiff could resort to

state courts to enforce federal laws

against state defendants. In ine v.

Thiboutot, 448 U.S.1 (1980), the Court

upheld a state court section 1983

judgment, which directed the state "to

pay the correct amounts retroactively" to

certain individuals who had improperly

been denied AFDC. 448 U.S. at 3. The

majority also upheld in Thiboutot an

award of counsel fees under the Civil

Rights Attorney's Fees Awards Act of

1976, reasoning:

No Eleventh Amendment question

is present, of course, where an

action is brought in a state

court since the Amendment, by

its terms, restrains only

"(tj)he Judicial power of the

United States."

448 U.S. at 9 n. 7. Justice White, who

had insisted in Hutto v. Finney, 437 U.S.

678, 704 (1978), that the Attorneys' Fees

Act did not authorize federal courts to

award fees against a state, nonetheless

joined the majority opinion in Thiboutot

upholding such an award by a state court.

In Martinez v. California, 444 U.S. 277

(1980), the Court resolved on the merits

a state court § 1983 action against

California, without expressing any

reservations about whether this Court, or

the state courts, had jurisdiction to

hear such a claim. See also Private

Truck Council of America, Inc. v. Quinn,

90 L.Ed.2d 677 (1986) (White, Brennan and

O'Connor dissenting from denial of

certiorari regarding merits of state

court section 1983 suit against state).

In those instances in which a

majority of this Court has held that the

Eleventh Amendment barred a particular

cause of action in federal court, the

Court has repeatedly asserted that the

federal statute at issue was nonetheless

enforceable in an action against a state

in state court. In Employees v. Missouri

Public Health Dept., 411 U.S. 279 (1973),

Justices Marshall and Stewart stressed

that the Eleventh Amendment in no way

limited the enforceability of the Fair

Labor Standards Act in state court:

Section 16(b)'s authorization

for employee suits to be

brought “in any court of

competent jurisdiction"

includes state ... courts....

(Tjhe ...FLSA ... created in

these employees a federal right

to recover from the state

compensation owing under the

Act. While constitutional

limitations upon the federal

judicial power bar a federal

court action by these employees

to enforce their rights, the

courts of the States

nevertheless have an

independent constitutional

Obligation to entertain

employee actions to enforce

those rights.... [Sjince

federal law stands as_ the

supreme law of the land, the

State's courts are obligated to

enforce .e even if St

conflicts with state policy....

I see our decision today, then,

as nothing more than a

regulation of the forum in

which these petitioners may

seek a remedy for asserted

denial of their rights under

the PLEA. «ce [(T)hese

petitioners are entitled

personally to enforce their

federal rights against the

State in state forum rather

than in federal forum.

411 U.S. at 298.11 In Pennhurst State

School & Hospital v. Halderman, the

majority explained that "under Edelinan v.

11 The majority in Employees

noted that the FLSA "arguably" authorized

Suits in state court, but did not resoive

that issue. 411 U.S. at 287.

Jordan ... a suit against state officials

for retroactive monetary relief ... based

on federal law, must be brought in state

court.*® 465 U.8S. at i22. In Atascadero

State Hospital v. Scanlon the majority

disputed the suggestion that its

interpretation of the Vocational

Rehabilitation Act would leave without

any monetary remedy individuals whose

statutory rights had been violated by a

state, arguing that "[ijt denigrates the

Judges who serve on the state courts to

suggest that they will not enforce the

Supreme law of the land." 473 U.S. at

239 n. 2 (emphasis added).

A substantial number of state

courts, including those in Florida, have

in fact done precisely what the

Atascadero majority insisted state judges

would not do, refusing to hear section

(ieee.

1983 claims against state agencies

precisely because, under Edelman and

Quern, the plaintiff had nowhere to turn

except state court. The lower courts,

which are in a state of "confusion"12

regarding whether they must hear. such

claims, have adopted four quite distinct

rules. State courts in Michigan,

Nebraska and Alaska have held that states

12 Ramah Navajo School Bd. vy.

Bureau of Revenue, 720 P.2d 1243, 1248,

104 N.M. 302 (N.M. App.) (“confusion in

the lower courts"), cert. denied, 107

S.Ct. 423 (1988); see also Gumbhir v.

Kansas State Bd. of Pharmacy, 646 P.2d

1078, 1083, 231 Kan. 507 (1982) ("the

courts are divided on the question" of

whether states are "persons" under section

1983); Kristensen v. Strinden, 343 N.W.2d

67, 77 n. 11 (N.D. 1983) (“there is no

unanimous consensus among the _ courts"

regarding whether states are "persons"

under section 1983); Hampton v. State of

Michigan Dep't of Corrections, 377 N.W.2d

920, 921, 144 Mich. App. 794 (1985)

("whether a state or any of its agencies

is a ‘'person' for purposes of § 1983 has

been the subject of ongoing debate in both

federal and state courts.")

cre "persons" within the meaning of

section 1983, and can thus be subjected

under at least some circumstances, to

monetary awards in section 1983

actions.13 Kansas and New Mexico courts

hold that a state is a "person", and

subject to a section 1983 suit in its own

name in state court, where the plaintiff

seeks only prospective relief; in New

Mexico courts, however, a state is not a

"person" under section 1983 to the extent

13 Smith v. State, 122 Mich. App.

340, 350-52, 333 N.W.2d 50, 55 (1983) ("we

conclude that Congress must have intended

that states be included as 'persons' ..

» under §. 1983") 3 fe) Vv braska

Dept. of Public Welfare, 223 Neb. 485,

391 N.W.2d 105, 109 (1986) (construing

Maine v. Thiboutot to authorize state

court section 1983 actions against

states); Brown v. Wood, 592 P.2d 1250,

1251 (Alaska 1979) (University of Alaska

is a "person" and "can be held liable in

a suit under 42 U.S.C. § 1983").

that monetary relief is sought.1]4

Decisions in Pennsylvania and North

Dakota hold that, regardless of whether a

state may be a "person" subject to suit

in a section 1983 case, Congress intended

that states enjoy complete immunity from

14 Gumbhir v. Kansas State Bd. of

Pharmacy, 231 Kan. 507, 646 P.2d 1078,

1084 (1982) ("where prospective

injunctive relief is sought .. . a state

agency should be considered a 'person'

under the statute .. . . [Aj careful

reading of Quern reveals that case did

not hold states or state agencies could

never be considered '‘'persons' under

section 1983"); Ramah Navajo School Bd.

v. Bureau of Revenue, 720 P.2d 1243,

1249, 104 N.M. 302, (N.M. App.), cert.

denied 107 S.Ct. 423 (1986), ("'where

prospective injunctive relif is sought’.

. a state and its agencies may be

proper defendants in state court under

Section 1983"). This approach was

disapproved in Karchefske v. Dept. of

Mental Health, 371 N.W.2d 876, 879 n. 8

(Mich. App. 1985) (“We find no support

for such a bifurcated application of the

word ‘person'").

suits under section 1983.15 fhe largest

group of state court insist that Quern v.

Jordan held that states are not

"persons", and thus can never be sued in

a state court section 1983 action.1© The

15 Kristensen v. Strinden, 343

N.W.2d 67, 76-77 and n. 11 (N.D. 1983)

(holding state immune from suit without

"deciding) whether or not a state is a

'person' under the statute"); Kapil v.

Ass'n of Pa. State College, 448 A.2d 717,

720 and n. 6, 68 Pa. Comm. W. 287 (1982),

rev'd on other grounds, 504 Pa. 92, 470

A.2@ . (1983) (relying on "a_ state's

'traditional' sovereign immunity") ;

Karchefske v. Dept. of Mental Health, 371

N.W.2a 876, 878-81 (Mich. App. 1985)

(although "the state is a '‘'person' for

purposes of § 1983 liability", state can

assert absolute immunity); see also

Hampton v. State of Michigan Dep't of

Corrections, 144 Mich. App. 794, 377

N.W.2d 920, 923 (1985) (Gillis, J3.,

concurring in part and dissenting in

part) (although state is "a 'person' for

purposes of 42 U.S.C. § 1983, state's

immunity rules apply").

16 Boldt _v. State, 305 N.W.2d

133, 144, 101 Wis.2d 566, "a state is not

a ‘person' within the meaning of sec.

i983 « « « «& Quern v. Jordan"), cert.

denied, 454 U.S. 973 (1981); Hampton v.

State of Michigan Dep't of Corrections,

144 Mich. App. 794, 377 N.W.2d 920, 923

(1985) ("it is our opinion based on Quern

that the term 'person' in § 1983

was not intended to include states and

state agencies"); Edgar v. State, 92

Wash.2d 217, 595 P.2d 534, 537 (1979)

("The question . . . in Quern .. . was

whether the word 'person' as used in this

statute included states. It is the

inescapable holding of the court that it

did not"; also citing Edelman); State v.

Green, 633 P.2d 1381, 1382 (Alaska 1981)

("We interpret Quern v. Jordan as holding

- . . that states are not ‘'‘'persons'

within the meaning of the _ section");

Merritt for Merritt v. State, 696 P.2d

871, 877, 108 Idaho 20 (1985) ("We

interpret Quern v. Jordan to hold ,

that the states are not '‘'persons' for

purposes of § 1983"); DeVargas v. State,

97 N.M. 450, 640 P.2d 1327 (Ct. App.

1981); cert. quashed, 97 N.M. 563, 642

P.2d 166 (1982); Woodbridge v. Worcester

State Hosp., 384 Mass. 38, 423 N.E.2d

782, 786 n. 7 (1981) ("Quern . ;

reaffirmed the Court's prior holding

Edelman. ; . that States are not

'persons' for purposes of § 1983"); Pyne

v. Meese, 218 Cal. Rptr. 87, 92, 172 Cal.

App.3d 402 (1985) ("a state is not a

'person' under section 1983"; citing

Quern and Edelman); Mezey v. State, 208

Cal. Rptr. 40, 43, 161 Cal. App. 3d 1066

(Cal. App. 1 Dist. 1984) ("a state and

its agencies are not 'persons' within the

meaning of section 1983"; citing Alabama

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

lower federal courts are evenly divided

regarding whether uer so held.??

Ironically, the courts which construe

17 Four federal decisions

conclude that a state is a "person" for

section 1983 purposes. Della Grotta v.

State of Rhode Island, 781 F.2d 343, 348

(lst Cir. 1986) ("states are '‘persons'

potentially liable for constitutional

deprivations"); Marrapese ov. Rhode

Island, 500 F. Supp. 1207, 1210-12

(D.R.I. 1980); Irwin v. Calhoun, 522 F.

Supp. 576, 583-84 (D. Mass. 1981); R.I.

Affiliate Am. Civ. Liberties v. R. I.

Lottery, 553 F. Supp. 752, 767 (D.R.I.

1982) ("Congress intended state

administrative agencies . . . to be

'persons' within the meaning of § 1983").

Cf. Verner v. State of Colorado, 533 F.

Supp. 1109, 1113 (D. Colo. 1982) ("there

is a strong argument that states are

'persons' under § 1983").

Three federal decisions have arrived

at the contrary conclusion. Bailey v.

Ohio State University, 487 F. Supp. 601,

603 (S.D. Ohio 1980) ("a state is not a

'person' under § 1983"); Brown v. Supreme

Court of Nevada, 476 F. Supp. 86, 89 (D.

Nev. 1979) ("an agency of the State

is not a ‘person' under" section 1983);

Thompson v. New York, 487 F. Supp. 212,

226 (N.D.N.Y. 1979) ("this Court is bound

by Quern's .. . holding that a State is

not a '‘'person' within the meaning of"

section 1983).

Quern to bar state court suits against

states rely primarily on Justice

Brennan's separate opinion, which

criticized the Quern decision for so

holding,+8 while the courts which hold

that states are "persons" rely on the

18 Kristensen v. Strinden, 343

N.W.2d 67, 77 n. 11 (N.D. 1983) (“the

concurring opinions of Justices Brennan

and Marshall in Quern" read the majority

opinion "as having definitely settled the

question); Hampton v. State of Michigan

Dep't of Corrections, 1:4 Mich. App. 794,

377 N.W.2d 920, 922 (1985) (court's view

that Quern holds states are not persons

"was the position taken by Justice

Brennan, concurring in Quern"); Edgar v.

State, 92 Wash.2d 217, 595 P.2d 534, 537

(1979), (citing Justice Brennan's

"dissent" in Quern), cert. denied. 444

U.S. 1077 (1980); State v. Green, 633 P.2d

1381, 1382 (Alaska 1981) (same); ,Merritt

for Merritt v. State, 696 P.2d 871, 877,

100 Idaho 20 (1985) ("As Justice Brennan's

concurring opinion points out, the

majority opinion implicitly includes

a decision" that states are not

"persons"); Woodbridge v. Worcester State

Hosp., 384 Mass. 38, 423 N.E.2d 782, 786

n. 7 (1981) (relying on "the concurring

opinions of Justices Marshall and

Brennan")

majority opinion of Chief Justice

Rehnquist. 19

19 Smith v. State, 333 N.W.2d at

55; Gumbhir v. Kansas State Bd. of

Pharmacy, 231 Kan. 507, 646 P.2d 1078,

1084 -(1982) ("Justice Rehnquist's majority

opinion carefully skirted the issue");

Karchefske v. Dept. of Ment Health, 371

N.W.2d 876, 878 (Mich. App. 1985)

("Justice Brennan's’ characterization of

the majority opinion in Quern is in

error"); Marrapese v. State of Rhode

Island, 500 F. Supp. 1207, 1211 (D.R.I.

1980) ("Justice Rehnquist's opinion. .

conspicuously avoided any statement that

the term '‘'person' did not’ include

'state'"); State v. Green, 633 P.2d 1381,

1382 (Alaska 1981) (Rabinowitz, Cc. Jd.,

dissenting) ("Justice Rehnquist's opinion

in fact carefully avoids that issue...

Under Justice Rehnquist's approach the

states are free to render themselves

amenable to suit under 42 U.S.C. § 1983;

under Justice Brennan's approach, this is

not the case"); Marrapese v. State of

R.I., 500 F. Supp. 1207, 1211 and n. 9

(D.R.I. 1980) ("Justice Rehnquist's

opinion . . . conspicuously avoided any

statement that the term 'person' did not

include ‘'state' . .. . The Court's

refusal to cast its discussion in the form

of a '‘'person' analysis is all the more

striking in light of Justice Brennan's

vehement . . . concurring opinion... .")

37 >

The state of the law in the lower

courts is more conflicting, and

incongruous, than even the previous

paragraph suggests. There are intrastate

conflicts between state courts in

Michigan, New Mexico, and Alaska.2°9

Several state courts appear to hold that

the Eleventh Amendment is’ literally

applicable to state judicial

proceedings. 21 A number of decisions

argue that "{i]t would be anomalous, to

say the least", if Congress' had

authorized the filing in state courts of

section 1983 actions which could not be

20 Compare Ramah Navajo School

Bd. v. Bureau of Revenue, supra n. 14

with DeVargas v. New Mexico Dep'‘t of

Corrections, supra n. 16; compare Brown

v. Wood, supra n. 13, with State v.

Green, supra n. 16; compare Smith v.

State, supra n. 13, with Hampton v. State

of Michigan Dep't of Corrections, supra

n. 16.

21 See n. 7, supra.

brought in federal court**; Maine v.

Thiboutot expressly rejected the

suggestion that there was any "inherent

illogic" in consigning a subset of

section 1983 cases to state courts.*2 A

Wisconsin court held in 1981 that counsel

fees under section 1988 coould be

obtained against a state in state court

because the state itself could not be

sued under section 1983°4, a _ result

22 Karche Vv. ° ental

Health, 37 N.W.2d 876, 871 (Mich. App.

1985) ("anomalous"); Hampton v. State of

Michigan Dep't of Corrections, 377 N.W.2d

920, 922, 144 Mich. App. 794 (1985)

("unlikely").

23 448 U.S. at 8n. 6, ll n. 12.

24 Boldt v. State, 101 Wis.2d 566,

305 N.W.2d 133, 143-44, cert. denied, 454

U.S. 973 (1981):

"The petitioner is not entitled

to recovery under sec. 1983

. because the state is not

subject to suit under sec. 1983

< “eee Since recovery of

actual attorney's fees under

squarely contrary to this Court's 1980

decision in Maine v. Thiboutot. A New

York decision goes so far as to assert

that a state, by adopting an

indemnificaticn statute, can extend its

Eleventh Amendment immunity to bar state

court section 1983 suits against

individual state officials.?°

But at this point in the evolution

of Eleventh Amendment, considerably more

is at issue than whether state court

actions may be maintained against state

agencies under section 1983 or pursuant

to any other specific federal statute.

The inconclusive result in Welch, coupled

sec. 1988 is dependent on

successful suit being brought

under sec. 1983, the petitioner

is not entitled to recover

actual attorney's fees."

25 Brody v. Leamy, 393 N.Y.S.2d

243, 262, 90 Misc.2d 1, 28 (Sup. Ct.

Dutchess Cty 1977).

with the retirement of Justice Powell,

has left litigants and the lower courts,

as well as federal and state legislators,

in serious and understandable uncertainty

as to whether Hans, Edelman, and their

progeny are still good law. The time has

come, we believe, to consider anew the

meaning of the Eleventh Amendment, and to

craft an interpretation of that Amendment

which can command the predictable support

of a substantial majority of this Court.

If this Court were to overrule Hans

and its progeny, the decision below would

fall as a matter of course. The refusal

of the Florida courts to hear in state

court section 1983 suits against the

state rests squarely, and expressly, on

26 Hill v. Department of

Corrections, 513 So.2d 129, 139-31 (Fla.

1987).

urge, this Court were to hold that

section 1983 suits may be maintained

against states in federal courts, state

courts would necessarily be required to

entertain such suits as well, since

Martinez v. California, 444 U.S. 277

(1980), forbids the states to accord to

section 1983 defendants’ immunities

broader than those which would be

avallable were the same action brought in

federal court.2?

27 444 U.S. at 283 n. 8:

"Conduct ... which is wrongful

under 42 U.S.C. § 1983

cannot be immunized by state

law. A construction of the

federal statute which permitted

a state immunity defense to

have controlling effect would

transmute a basic guarantee

into an illusory promise; and

the supremacy clause of the

Constitution insures that the

proper construction may be

enforced.... The immunity

claim raises a question of

federal law."

CONCLUSION

For the above reasons a writ of

certiorari should be granted to review

the judgment and opinion of the Supreme

Court of Florida.

Respectfully submitted,

ROBERT WEISBERG

DAVID LIPMAN

Lipman & Weisberg, P.A.

Suite 304

5901 Southwest 74th St.

Miami, Florida 33143

(305) 662-2600

SHARON L. WOLFE

Cooper, Wolfe &

Bolotin, P.A.

500 Roberts Building

28 West Flagler Street

Miami, Florida 33130

(305) 371-1597

JULIUS LeVONNE CHAMBERS

ERIC SCHNAPPER*

NAACP Legal Defense and

Educational Fund, Inc.

99 Hudson Street

16th Floor

New York, New York 10013

(212) 219-1900

Attorneys for Petitioner

*Counsel of Record

mae © o we

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A cf 7 cy

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ap Aon in 1 -@hp- 7 ae

rat - " se !* 7 an. - -

APPENDIX

ROBERT EDWARD SPOONER,

Petitioner,

DEPARTMENT OF CORRECTIONS,

Respondent.

MAURICE SKOBLOW,

Petitioner,

Vv.

AMERI-MANAGE, INC., et al.,

Respondents.

Nos. 68932, 68522

Supreme Court of Florida.

Sept. 24, 1987.

Rehearing Denied Dec. 1, 1987

F. Kendall Slinkman, West Palm

Beach, and Edna L. Caruso, P.A., West

Palm Beach, for petitioner, Spooner.

Robert A. Butterworth, Atty. Gen.,

and Mitchell, D. Franks, Chief Trial

counsel and Thomas H. Bateman, III, Asst.

Atty. Gen., Tallahassee, for respondent,

Dept. of Corrections.

Ira J. Kurzban of Kurzban, Kurzban

and Weinger, Miami, and Joel V. Lumer,

Miami, for Nat. Emergency Civil Liberties

Committee, amicus curiae.

Stephen T. Maher, Coral Gables, and

Sharon L. Wolfe, Miami, for American

Civil Liberties Union Foundation of

Florida, Inc., amicus curiae.

Robert Weisberg of Lipman &

Weisberg, P.A., Miami, and Sharon lL.

Wolfe of Cooper, Wolfe & Bolotin, P.A.,

Miami, for petitioner, Skoblow.

Robert A. Butterworth, Atty. Gen.,

and Mitchell D. Franks, Chief Trial

Counsel and Craig Willis, Asst. Atty.

Gen., Tallahassee, for respondents,

Ameri-Manage, Inc., et al.

OVERTON, Justice.

The First District Court of appeal,

in Spooner _ v. Department of Corrections,

488 So.2dad 897 (Fla. lst DCA 1986),

certified the following question to this

Court:

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?

Id. at 898.

The above case was consolidated with

Skoblow_v. Ameri-Manage, Inc., 483 So.2d

809 (Fla. 3d DCA 1986), which concerns

the identical issue, without

certification of the question. We have

jurisdiction. Art. V, § 3(b) (4).

We answer the question in the

negative for the reasons expressed in our

recent decision in Hill v. Department of

Corrections, 513 So.2d 129 (Fla. 1987).

We approve the decision of the First

District Court of Appeal in Spooner and

that of the Third District Court of

Appeal in Skoblow, holding the _ state

immune under the eleventh amendment and

the common law from suits arising under

the federal Civil Rights Act, 42 U.S.C.

U.S.C. § i983.

It is so ordered.

McDONALD, C.J., and EHRLICH, SHAW,

GRIMES and KOGAN, JJ., concur.

Maurice SKOBLOW, Appellant,

Vv.

AMERI~MANAGE, INC., Robert A. Burton,

John Pitrelli, Elsa Dominguez, Barbara

McMurtrey, Jackie Dale and Paul Uhrig,

Appeliees.

No. 85-1741

District Court of Appeal of Florida,

Third District.

Feb. 18, 1986.

Lipman & Weisberg and Robert

Weisberg, Miami, for appellant.

Jim Smith, Atty. Gen., and Craig

Willis, Asst. Atty. Gen., for appellees.

Before HENDRY, HUBBART and NESBITT,

JJ.

PER CURIAM.

The plaintiff appeals an order

entering partial summary judgment for the

defendants. We affirm.

————— <<

The plaintiff was employed as a

dentist at South Florida State Hospital.

The hospital is a mental institution

which is owned, funded and regulated by

the State of Florida. Pursuant toc a

contract with the state, Ameri-Manage,

Inc., provides management services at the

hospital. On February 13, 1981, the

plaintiff was notified of his termination

from employment at the hospital by a

letter from Robert Burton, the chief

executive officer of the hospital and an

employee of Ameri-Manage. This letter

indicated that the plaintiff was being

discharged because of "inadequate

performance in carrying out your duties

and responsibilities."

Two weeks later, an article appeared

in the Miami Herald concerning the

plaintiff's discharge. Four officials of

the hospital or state were reported in

the article to have given negative

statements about the plaintiff's work as

a dentist at the hospital. These

officials were Jackie Dale, the community

and patient relations director at the

hospital (referred to in the article as

the hospital spokeswoman), Barbara

McMurtrey, the human resources director

(personnel officer) at the hospital, Dr.

Paul Uhrig, the director of the state's

Division of Institutional Dental

Services, and Dr. Elsa Dominguez, the

dental services coordinator at the

hospital and the plaintiff's immediate

supervisor.

The plaintiff filed a two-count

complaint against the defendants. In the

first count, the plaintiff brought an

action for defamation against Dale,

McMurtrey, Uhrig and Dominguez. Burton

was also named in this count on the

asserted basis of a civil conspiracy with

the other named defendants to commit the

defamation. In the second count, the

plaintiff alleged a civil rights

violation pursuant to 42 U.S.C. § 1983

regarding his termination at the

hospital. Ameri-Manage and Burton were

named as defendants in this count. The

defendants filed a motion for partial

summary judgment on the basis of absolute

privilege and sovereign immunity.

Partial summary judgment was entered in

favor of the defendants and this appeal

followed.

In McNayr v. Kelley, 184 So.2d 428

(Fla. 1966), the supreme court first

recognized an executive official's

absolute immunity from defamation actions

based on statements made in connection

with the performance of his duties and

responsibilities. The court recognized

that executive officials had the same

absolute immunity afforded members of the

judicial and legislative branches of

government. 184 So.2d at 433.

Subsequently, the supreme court explained

the need for this immunity protection in

a case with facts similar to those in the

present case:

The public interest requires

that statements made by officials of

all branches of government in

connection with their official

duties be absolutely privileged.

Under our democratic system the

stewardship of public officials is

daily observed by the public. It is

necessary that free and open

explanations of their actions be

made. Any public servant should

expect that those having authority

to discharge him will explain their

reasons for such dismissal.

Hauser v. Urchisin, 231 So.2d 6, 8 (Fla.

1970). The scope of the absolute

eee

immunity has been extended to private

communications and the emphasis has

shifted to the "nature of the officer’s

duties rather than the level. of his

rank." City of Miami v. Wardlow, 403

So.2d 414, 416 (Fla. 1981). See Cripe v.

Board of Regents, 358 So.2d 244 (Fla. list

DCA), cert. denied, 365 So.2d 710 (Fla.

(Fla. 3d DCA £e77). Thus, the

controlling Lees in deciding whether a

public employee is absolutely immune from

actions for defamation is whether the

communication was within the scope of the

employee's duties. Wardlow, 403 So.2d at

416.

In the present case, all the

defendants alleged to have defamed the

plaintiff either had official supervisory

responsibility over the plaintiff or had

10a

responsibilities regarding personnel

matters or community relations. Since

the statements made concerning the

plaintiff's discharge were related to and

made within the scope of the defendants’

official duties, we hold that these

defendants are entitled to an absolute

privilege and are, therefore, immune from

liability for the alleged defamation.

See Wardlow; Hauser; Mueller vy. The

Florida Bar, 390 So.2d 449 (Fla. 4th DCA

1980); Cripe; Johnsen. Accordingly,

summary judgment was properly entered in

favor of Dale, McMurtrey, Uhrig and

Dominguez on the defamation count.

Likewise, summary judgment was properly

entered in favor of Burton on this count.

See Perdomo v. Jackson Memorial Hospital,

443 So.2d 298 (Fla. 3d DCA 1983) (where

count regarding the goal of a conspiracy

lla

(defamation) fails, so too the conspiracy

count fails).

We also affirm the summary judgment

entered in favor of Ameri-Manage on the

section 1983 action in the plaintiff's

second count. Absent an unequivocal

expression of intent by either the United

States Congress to overturn a state's

eleventh ~-amendment immunity, or a state

legislature to waive the state's

sovereign | immunity, a state and its

agencies are immune from civil rights

actions brought against them pursuant to

section 1983 in both federal and state

courts. See Quern v. Jordan, 440 U.S.

332, 99 S.Ct. 1139, 59 L.Ed.2d 358

(1979); art. X, § 13, Fla. Const. See

also Pennhurst State School & Hospital v.

Halderman, 465 U.S. 89, 104 S.Ct. 900, 79

L.Ed.2ad 67 (1984); Ford Motor Co. Vv.

12a

Department of Treasury, 323 U.S. 459, 65

S.Ct. 347, 89 L.Ed. 389 (1945); Ex Parte:

In re the State of New York, 256 U.S.

490, 41 S.Ct. 588, 65 L.Ed. 1057 (1921).

The plaintiff does not argue that the

Florida legislature has waived the

state's sovereign immunity so as to allow

civil rights actions against it.1 See

1 In this’ regard, see the

discussion in Shinholster v. Graham, 527

F.Supp. 1318 (N.D. Fla. 1981). The court

in Shinholster reviews the relevant

legislation and concludes that the

Florida legislature has not waived its

eleventh amendment immunity to civil

rights suits. The court's analysis is

equally applicabie to the issue of

whether the legislature has waived the

state's sovereign immunity in civil

rights actions brought in state court.

We find that analysis persuasive and

hereby adopt it. See also Tuveson v.

Florida Governor's Council on Indian

Affairs, Inc., 734 F.2d 730 (11th Cir.

1984); Cate v. Oldham, 707 F.2d 1176

(ilth Cir. 1983); Ostroff v. Florida

Dep't of Health & Rehabilitative

Services, 554 F. Supp. 347 (M.D. Fla.

1983). Contra Meeker v. Addison, 586 F.

Supp. 216 (S.D. Fla. 1984).

13a

art. ZX, § i3, Fia. Conese. Instead, the

plaintiff argues that Ameri-Manage is not

a state agency for purposes of sovereign

immunity in civil rights actions. we

reject the plaintiff's argument.

An examination of the legal

relationship between Ameri-Manage and the

state is dispositive. Pursuant to a

contract between the state and Ameri-

Manage, Ameri-Manage was to provide

direct management for South Florida State

Hospital, a state-owned hospital,

coordinate the development of a long-

range plan for the hospital consistent

with legislative mandate, and assist the

Department (HRS) in planning for interim

We note that the Eleventh Circuit

Court of Appeals has recently approved

the decision in Shinholster and rejected

the reasoning in Meeker. See Gamble v.

Florida Dep't of Health & Rehabilitative

Services, 779 F.2d 1509 (11th Cir. 1986).

14a

and long-range forensic services. HRS

delegated to the administrator of the

hospital (Burton, an employee of Ameri=

Manage), among other things, the

authority to (1) “appoint grievance

committee members and render a final

decision on employee grievances"; (2)

"effect personnel actions as specified in

HRSR 60-10, 10(a) . . . [and] hold

presuspension/termination conferences and

establish procedures for same"; (3)

"submit personnel actions to the State

Personnel Director directly, as specified

in HRSR 60-94(a)(1)(26)"; (4) “assign to

established classes new positions

authorized by the legislature"; (5)

"assign to established classes new

positions authorized

Administrative Commission"; (¢ — 9

to an established class any posit

15a

is added in lieu of a position that is

deleted"; (7) "reclassify positions to

existing Career Service Classes"; (8)

"respond to Collective Bargaining Step

One Grievances"; (9) “effect all types of

disciplinary actions as stated in HRSR

60-10 paragraph 5. This includes oral

reprimand, written reprimand, change in

assiaqnment, reduction in pay, demotion,

suspension and dismissal." [emphasis

added] It was the exercise of this last-

stated delegated authority which gave

rise to the plaintiff's claim under

section 1983.

An examination of the relationship

between Ameri-Manage and the State of

Florida leads us to the conclusion that

Ameri-Manage was operating aS an agency

of the state at the time of the

plaintiff's discharge from his position

16a

at the hospital. See Tuveson v. Florida

Governor's Council on Indian Affairs,

Inc., 734 F.2d 730 (11th Cir. 1984). See

also Edelman v. Jordan, 415 U.S. 651, 94

S.Ct. 1347, 39 L.Ed.2d 662 (1974); Ford

Motor Co. ce. § 768.28(2), Fla. Stat.

(1985) (defining "state agencies" for

purposes of the statute waiving sovereign

immunity in tort actions as including

"corporations primarily acting as

instrumentalities or agencies of the

state"). Since the Florida legislature

has not waived the state's sovereign

immunity in civil rights actions, see

Gamble v. Florida Dep't of Health &

Rehabilitative Services, 779 F.2d 1509

(11th Cir. 1986); Shinholster v. Graham,

527 F. Supp. 1318 (N.D. Fla. 1981);2 art.

Be i Fla. Const., the summary

2 See supra note l.

17a

judgment in favor of Ameri-Manage on the

plaintiff's second count alleging a civil

rights violation was properly entered.

The parties are in agreement that

Burton can be held liable in his

individual capacity for any civil rights

violations that might have occurred.

Accordingly, the summary judgment entered

in favor of all of the defendants on

plaintiff's defamation count is affirmed,

the summary judgment entered in favor of

Ameri-Manage on the count alleging a

civil rights violation is affirmed, and

the cause is remanded to the trial court

for further proceedings.

18a

IN THE

CIRCUIT COURT

OF THE ELEVENTH JUDICIAL CIRCUIT

IN AND FOR DADE COUNTY, FLORIDA

GENERAL JURISDICTION DIVISION

CASE No. 82-606-CA-13

MAURICE SKOBLOW,

Plaintiff,

Vv.

AMERI-MANAGE, INC., ROBERT A. BURTON,

ELSA DOMINGUEZ, BARBARA MCMURTREY,

JACKIE DALE and PAUL UHRIG,

Defendants.

PARTIAL SUMMARY JUDGMENT

THIS CAUSE having come to be heard

on the Defendants' Motion for Partial

Summary Judgment and the Court after

hearing argument of counsel, reviewing

the file and memoranda, and being

19a

otherwise fully advised in the premises,

it is hereby:

ORDERED AND ADJUDGED that

Defendants' Motion for Partial Summary

Judgment is GRANTED and therefore partial

summary judgment is hereby entered in

favor of the defendants.

DONE and ORDERED at Miami, Dade

County, Florida, this 27th day of June,

1985.

Rosemary Usher Jones

CIRCUIT COURT JUDGE

20a

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.