Opposition Brief — Skoblow v. Ameri-Manage, Inc.

No. 87-1454

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

MAURICE SKOBLOW,

Petitioner,

Vv.

AMERI-MANAGE, INC.,

Respordent.

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

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QUESTION PRESENTED FOR REVIEW

DOES THE ELEVENTH AMENDMENT, OR A

STATE'S COMMON LAW SOVEREIGN IMMUNITY,

CONFER IMMUNITY UPON THE STATE FROM A

SUIT BROUGHT PURSUANT TO 42 U.S.C.

SECTION 1983 WHEN THE SUIT IS FILED IN

STATE COURT.

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW

DOES THE ELEVENTH AMENDMENT, OR

A STATE'S COMMON LAW SOVEREIGN

IMMUNITY, CONFER IMMUNITY UPON

THE STATE FROM A SUIT BROUGHT

PURSUANT TO 42 U.S.C. SECTION

1983 WHEN THE SUIT IS FILED IN

STATE COURT.

TABLE OF CONTENTS

TABLE OF AUTHORITIES

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

ARGUMENT

CONCLUSION

iii

22

TABLE OF CITATIONS

CASES PAGE(S)_

Brown v. Wood, ph Pee i |

592 P.2d 1250 (Alaska 1979)

DeBleecker v. 16

Montgomery County,

438 A.2d 1348 (Md. 1982)

DeVargas v. State ex rel. 16

N.M. Dept. of Corrections,

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

Edelman v. Jordan, 14; 26, ‘20

415 U.S. 651 (1974)

Edgar v. State, 17

595 P.2d 534 (1979)

Ex parte State of New a3

York No. l,

256 U.S. 490 (1921)

Ex parte Young, 20

209 U.S. 123 (1908)

Gay v. State of Texas, 16

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

Greene v. Friend of Court, 16

Polk County, e

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

Hampton v. State of Michigan, 9

377 N.W.2d 920 (Mich. App. 1985)

Hans v. Louisiana, 4

134 U.S. 1 (1890) 7

- £335 =

Hill v. Department of 2.

Corrections,

513 So.2d 129 (Fla. 1987)

Hill v. Department of

Corrections,

U.S. » 108 S.Ct.

Karchefske v. Dept. of

Mental Health,

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

Kristensen v. Strinden,

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

Maine v. Thiboutot,

443 U.S. 1 (1980)

Maldonado v. Nebraska

Dept. of Public Welfare,

391 N.W.2d 105 (Neb. 1986)

Merritt v. State,

696 P.2d 871 (Idaho 1985)

Monell v. Dept. of Social

Services of City of N.Y.,

436 U.S. 658 (1978)

Pennhurst v. State School &

Hospital v. Halderman,

465 U.S. 89 (1984) °

Pyne v. Meese,

172 Cal.App.3d 392, 218 Cal.

Rptr. 87 (1985)

Quern v. Jordan, 3, ik

440 U.S. 332 (1979) 15, 16,

16

16

20

10

16

ll, 19

14

16

Ramah Navajo School 17

Board v. Bureau of Revenue,

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

cert. denied, J aoe

107 S.Ct. 423 (1986)

Skoblow v. Ameri-Manage, Inc., l, 7, 22

514 So.2d 1077 (Fla. 1987)

Smith v. Department of 9

Public Health,

333 N.W.2d 50 (Mich. App. 1983)

Smith v. Department of 10

Public Health,

410 N.W.2d 749 (Mich. 1987)

Spooner v. Department of 1

Corrections,

488 So.2d 897 (Fla. lst DCA 1986)

State v. Green, ~ ll, 16

633 P.2d 1381 (Alaska 1981)

Other Authorities

42 U.S.C. Section 1983 L, 6s Be Te

Civil Rights Restoration Act, 21

Pub. L. No. 100-259

STATEMENT OF THE CASE

The Florida Supreme Court ruled in this

case that the State of Florida was immune

under the Eleventh Amendment and the

state's common law sovereign immunity

Suits arising under the federal Civil

Rights Act, 42 U.S.C. Section 1983.

Skoblow v. Ameri-Manage, Inc., 514 So

1077 (Fla. 1987).

This case was consolidated in the

Florida Supreme Court with Spooner v.

2d

Department of Corrections, 488 So.2d 897

(Fla. lst DCA 1986), in which the First

District Court of Appeal had certified the

following question:

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?

rr

The identical question was certified by

the Third District Court of Appeal to the

Florida Supreme Court in Hill v. Department

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

1987). In reaching the answer to the

above-quoted question in the present case,

the Florida high court relied upon its

decision in Hill. While the Florida

Supreme Court in Hill primarily addressed

the issue certified by the District Court

of Appeal, the supreme court did confront

the issue Petitioner seeks to have reviewed

in this Court. Hill had contended that the

State has no common law sovereign immunity

against a suit brought under federal law

alleging the violation of a federal

constitutional right. The Florida Supreme

Court in Hill, supra, at 131, 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 traditional

sovereign immunity of the

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

S.Ct. at 12265.

The Florida court went on to cite, and

extensively quote from, a number of state

court decisions throughout the country that

have decided this issue in accordance with

the conclusions reached in Quern v. Jordan,

440 U.S. 332 (1979).

Supreme Court is unwarranted because

neither Congress nor the Florida

Legislature has expressed an intent tc

waive the state's common law sovereign

immunity from suits brought pursuant to 42

U.S.C. Section 19863.

Petitioner seeks to have this Court

overturn one hundred years of judicial

interpretation of constitutional law dating

back to Hans v. Louisiana, 134 U.S. l

(1890). In order to accommodate the

Supremacy of federal law to the

constitutional immunity of the States under

our federal system of government, this

Court has required an express legislative

abrogation of the states' immunity. It has

previously decided that Congress has not

expressed an intent to subject the states

to liability under 42 U.S.C. Section

1983. Congress has the power to abrogate

the State's sovereign immunity pursuant to

its authority in the Fourteenth Amendment

to enact legislation protecting individual

Civil rights. Pursuant to the supremacy

clause contained in Article VI of the

Federal Constitution, such enactment would

be applicable to suits brought in state as

well as federal court. Congress has been

on notice since 1979 as to this Court's

interpretation of Section 1983 suits

against a State, sat has elected not to

exercise its power to abrogate the states'

immunity under the Fourteenth Amendment.

Petitioner's petition for review

amounts to a plea to reconsider decades of

settled constitutional law because there is

a new complement of justices on this

Court. This is not one of the criteria set

forth by this Court as reason for review.

Under these circumstances, review of this

issue by the Court is unwarranted.

This Court recently denied certiorari

review of this case's companion case, Hill

v. Department of Corrections,

ie , 108 §.Ct. 1024 (1988), which

raised the identical issue. It should do

so in this case as well.

ARGUMENT

A GRANT OF CERTIORARI IS NOT

WARRANTED IN THIS CASE BECAUSE

THE DECISION OF THE FLORIDA

SUPREME COURT RELIES ON SETTLED

FEDERAL LAW AND NO FURTHER

RECONSIDERATION OF THIS COURT'S

INTERPRETATION OF CONSTITUTIONAL

LAW IS WARRANTED.

The Fiorida Supreme Court decided that

the State and its agencies were immune from

Suits brought pursuant to the federal Civil

Rights Act, 42 U.S.C. Section 1983.

Skoblow v. Ameri-Manage, Inc., 514 So.2d

1077. The Florida court relied, in part,

On its decision in a companion case, Hill

v. Department of Corrections, 513 So.2d 129

(Fla. 1987). This Court recently denied a

petition for a writ of certiorari to the

Supreme Court of Florida to review that

court's judgment and opinion in Hill. Hill

v. Florida Department of Corrections,

U.S. , 108 S.Ct. 1024 (1988). The Court

should similarly deny the Petition in this

case since the issue is identical.

The thrust of Petitioner's plea for

review is simply that two new justices are

now on the Court. Because the Court now

has a new complement of justices,

Petitioner pleads for a general revision of

constitutional jurisprudence - presumably

one that is in accord with his own view.+

This can hardly be a legitimate basis for

review, and Petitioner's plea should be

firmly denied.

1 petitioner even goes so far as to urge

the Court to hold that Section 1983 suits

can be maintained against states in federal

courts. This request is congruent with

Petitioner's position that Hans v.

Louisiana, 134 U.S. 1 (1890) was decided on

infirm constitutional grounds and should be

overruled. Interestingly, Petitioner does

not ask the Court to go even further back

in time and reconsider its decision in

Chisholm v. Georgia, 1 L.Ed. 440 (1793), or

review implicit limitations contained in

Article III of the Constitution.

Petitioner was able to unearth only

three state court decisions which have held

that states are "persons" within the

meaning of Section 1983. Petition at 29-

30. A review of these three decisions is

illuminating and dispells Petitioner's

claim that the States are in philosophical

disarray and confusion. Petition at 29.

In Smith v. Department of Public Health,

333 N.W.2d 50 (Mich. App. 1983), the Court

of Appeals of Michigan concluded, among

other things, that the state was a “person”

for purposes of Section 1983 and amenable

to suit thereunder. Later decisions of

that court and the Michigan Supreme Court

overruled this earlier conclusion and ruled

that the term "persons" as used in Section

1983 was not intended to include states and

State agencies. See, Hampton v. State of

Michigan, 377 N.W.2d 920, 923 (Mich. App.

1985) and Smith v. Department of Public

Health, 410 N.W.2d 749, 792 (Mich. 1987).

In Maldonado v. Nebraska Dept. of

Public Welfare, 391 N.W.2d 105, 109-110

(Neb. 1986), the Nebraska Supreme Court

held that the state had waived its

sovereign immunity by the terms of its

participation in federal programs, and

therefore, the state was liable for

attorney fee awards under Section 1988.

Thus, Maldonado is inapposite to the

present issue because of that court's

determination the state had waived its

sovereign immunity. A finding of a waiver

of sovereign immunity presupposes the

validity of that constitutional principle

in the first instance.

In Brown v. Wood, 592 P.2d 1250 (Alaska

1979), the Alaska Supreme Court held that

the University of Alaska could be held

- 10 -

liable in a suit under 42 U.S.C. Section

1983. This decision relied on Monell v.

New York Dept. of Social Services, 436 U.S.

658 (1978), and did not review the

Clarification of Monell provided in Quern

v. Jordan, 440 U.S. 332 (1979). Petitioner

does not point out that the Alaska Supreme

Court subsequently reversed its position on

this issue in State v. Green, 633 P.2d 1381

(Alaska 1981), in reliance on Quern v.

Jordan, supra, thereby overruling Brown v.

Wood.

This Court settled, for purposes of

constitutional jurisprudence, the issue of

whether the states are subject to suit

under 42 U.S.C. Section 1983 in Quern v.

Jordan, supra. The Court held that

Congress, in adopting a provision in 1871

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

not intend to override the traditional

sovereign immunity of the states and

- ll -

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 cf 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.l 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

- 12 -

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.

- 13-

This Court has made it clear that its

interpretation of the Eleventh Amendment is

an attempt to accommodate the states'

traditional sovereign immunity under a

federal form of government with Congress’

enumerated powers under Section 5 of the

Fourteenth Amendment. Pennhurst v. State

School & Hospital v. Halderman, 465 U.S. 89

(1984); Edelman v. Jordan, 415 U.S. 651

(1974).

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.

- 15 -

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 Cal.App.3d 392, 403, 218 Cal.

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

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

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

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).

- 16 -

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, Gg... » 187

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). And see the Court's

disposition of this case's companion case

in the Florida Supreme Court, Hill v.

Florida Dept. of Corrections, 513 so.2d 129

(Fla. 1987), cert. denied,

U.S. , 108 S.Ct. 1024 (1988).

This Court has declared that Section 5

of the Fourteenth Amendment vests Congress

with the power, where unequivocally expressed,

to “overturn the constitutionally guaranteed

immunity of the several States." Quern v.

Jordan, supra at 342. Petitioner, at 21,

- lj -

states that this rule of construction "has

not proven to be a particularly reliable

method of ascertaining congressional

intent." Petitioner cites in support of

this statement two instances in which

Congress has amended the law in response to

this Court's application of this rule in

determining the scope of legislative

enactments. There are, however,

alternative perspectives on the analysis of

these jurisprudencial developments. Rather

than viewing these cases as this Court's

mistaken interpretation of Congressional

intent, they can be viewed from the

perspective of the different roles courts

and Congress play in the evolution of the

law. In this role the Court can be viewed

as defining legislative parameters, thereby

allowing Congress the opportunity to make

clear choices concerning the law's

development or stability. This role is

~~ 2a

consistent with a philosophy of judicial

restraint.

Litigants have contended that the

application of the states' sovereign

immunity to civil rights actions brought in

state court results in the total

foreclosure of any forum, state or federal

for the redress of constitutional wrongs.

This contention creeps into Petitioner's

brief at pages 24 through 29, and is

patently misleading. A 1983 suit may be

brought properly in state or federal court

against a state official in his "personal

capacity" for a violation of an

individual's civil rights and it may seek

monetary, declaratory, or injunctive

relief. There is no constitutional

impediment to civil rights actions against

local governments which are not part of the

state for Eleventh Amendment purposes.

Monell v. Dept. of Social Services of City

- 19 -

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. 1 (1980).

Thus, what Petitioner is really seeking

are unlimited compensatory and punitive

damages collectible from the state

treasuries. For Petitioner to contend that

he has been deprived of a judicial forum

for the exoneration of important civil

rights is, at best, disingenuous.

The test enunciated by this Court

requires Congress to unequivocally express

its legislative will on issues having far-

- 20 -

reaching societal implications. This is

not so great a burden to place on Congress

and is an approach consistent with sound

principles of judicial restraint. As

Petitioner points out, Congress has not

been shy about amending the law in the past

where there was a legislative perception of

a need for change. In fact, Congress

recently flexed its legislative muscle in

overriding the President's veto of the

Civil Rights Restoration Act, Pub. L. No.

100-259. Congress has been on notice since

1979 of this Court's ruling in Quern v.

Jordan. If there is a societal need to

abrogate the states' immunity, it is

incumbent upon Congress to act.

CONCLUSION

The Florida Supreme Court's decision in

Skoblow v. Ameri-Manage, Inc., relies on

established constitutional law that the

states' sovereign immunity bars liability

from actions brought pursuant to 42 U.S.C.

Section 1983. Development in this area of

the law should be the result of legislative

enactment, not judicial tinkering with

settled constitutional principles.

Congress has expressed no intent to

abrogate the states' immunity under Section

1983. Under these circumstances, the

Petition for writ of certiorari should be

denied.

Respectfully submitted this lst day of

April,

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