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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1989
- **Citation:** 491 U.S. 904

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1425%3A2. Public record. Not legal advice.