Opposition Brief — Futernick v. Caterino

No. 96-100

In the Supreme Court of the United States

October Term, 1995

SHELDON FUTERNICK, d/b/a

HOLIDAY WEST MOBILE HOME PARK

and d/b/a HOLIDAY WOODS MOBILE

HOME PARK,

Petitioner,

Vv.

JON CATERINO; ROLAND HARMES,

Director, Michigan Department of Natural Resources;

and VERNICE DAVIS-ANTHONY, Director

Michigan Department of Public Health,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

BRIEF OF RESPONDENTS CATERINO, HARMES

AND DAVIS-ANTHONY IN OPPOSITION

FRANK J. KELLEY

Attorney General

Thomas L. Casey

Solicitor General

Counsel of Record

P. O. Box 30212

Lansing, Michigan 48909

(517) 373-1124

R. Philip Brown

John C. Scherbarth

Assistant Attorneys General

Attorneys for Respondents

Jon Caterino, Roland Harmes

and Vernice Davis-Anthony

i

QUESTIONS PRESENTED

I.

Did the complaint state a legally sufficient cause of action

for selective enforcement despite its failure to allege race,

religion, or other arbitrary classification?

a. Does the narrowly circumscribed definition

of selective enforcement approved by this

court in Oyler v. Boles prohibit an enforcement

action that is based upon “forbidden aims,”

other than denial of a constitutional right or

invidious discrimination?

b. Are “bad faith,” “animosity” or “malice”

forbidden aims for issuing a certificate of

noncompliance to a violator of a valid waste-

water discharge permit, where there are no

allegations of intent to harm a protected

group or punish a person for the exercise of a

constitutionally protected right?

II.

Is lawful issuance of a Certificate of Noncompliance for

Petitioner’s failure to meet the terms of a valid surface waste

water discharge permit objectively reasonable conduct

entitled to qualified immunity, or did issuance of the

certificate violate a constitutional right that was clearly

defined at the time the act occurred?

IIL.

Does the Eleventh Amendment permit prospective injunctive

relief against directors of State agencies in their official

capacities absent allegations that the directors themselves

are personally violating federal law or that such violations

are the result of agency policy or custom?

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TABLE OF CONTENTS

Page

QUESTIONS PRESENTED. sccisss:sssscsuntioscsetitenae raabnbaciecian i

TABLE OF AUTHORITIES....:....cc.cene en iv

JURISDICTION ....2scnsssviccsinopicbsanbianiiadndanadaeeaanens 1

COUNTERSTATEMENT OF THE CASE...............:c.::sc000 1

1. Counterstatement of the Proceedings.................... 1

2. Counterstatement of Facts...............::cssssecsesessees 3

REASONS FOR DENYING THE PETITION...................... 4

1. There Is No Selective Enforcement Cause Of

Action For “Improper Motive,” And The Court

Of Appeais Correctly Rejected Petitioner’s

Invitation To Expand Unrecognizably This

Court’s Own Limitations On The Definition

Of Selective Exvicommameaiiln sisi cinpisitaccsscpcnicdecniicteisonesenss 4

2. Creation At This Time Of A Constitutional Cause

Of Action For Improper Motive Will Not Change

The Judgment For Respondent Caterino..................-+0+: 7

3. Separate Grounds Support The Judgment Of

The Court Of Appeals For The State Department

DUP OCROS....0....006scsreswesdthiscvessicabeibaa maa Gbein teva iiaes 9

4. There Is No Irreconcilable Or Intolerable Conflict

Between Court Of Appeals Opinions....................++ 13

a. There Is No Conflict Between Opinions

Of The Court Of Appeals For The Sixth Circuit......... 14

b. There Is No True Or Direct Conflict Between

This Opinion And Those Of Other Circuits................ 14

5. The Issue Of Improper Motive Was Not Raised

in The District Coer tn ccncsccetccestvcuiihe ohenntinaamctatannnegen 16

Ce

-ili-

6. The Issue Of Improper Motive Does Not

Constitute A Question Of Wide Constitutional

a gS thats Seccecrnicandicshdskiss tasenscsessnetes 18

a. State Tort Laws And Hearing Procedures

Provide Adequate Remedies, If Any Are Needed,

For State Action Allegedly Based Upon Improper

I ck Nadncch res tA dnssthes ciseed i aideciesaossansissnestsckuasidasensns 19

b. The Improper Motive Alleged In This Case Is

Non-Recurring And Of A Unique Factual Nature

With No Significant Public Impact................c0cc0ee0e- 20

eM ian inks tok ackd hts uk ceca nis cicay oddebiSidcoeosecibccitc 21

-iV-

TABLE OF AUTHORITIES

Page

Cases:

Adams v. Pate, 445 F.2d 105 (7th Cir. 1971)............8. 12

Alabama v. Pugh, 438 U.S. 781 (1978).........cccccceseeseeeees 10

Batra v. Bd. of Regents of Univ. of Nebraska,

79 POG Fis (Oe Cie: T9906) ikectieniniins 15

Burt v. City of New York, 156 F.2d 791 (2d Cir. 1946) .....15

Edelman v. Jordan, 415 U.S. 651 (1974) .00... cece eeeeeeeeeeeees 9

Esmail v. Macrane, 53 F.3d 176 (7th Cir. 1995) ........ 7,14,15

Ex Parte McCardle, 74 U.S. (7 Wall) 506 (1868) ................. 1

Ex Parte Young, 209 U.S. 123 (1908).........:sccssceseeeees 10-12

Ford Motor Co. v. Dept. of Treasury, 323 U.S. 459 (1945) ...9

Gilliard v. Mississippi, 464 U.S. 867 (1983) ......-..-..-...:00+ 13

Hafer 0. Malo, SQ2 US. 21. (1991 ja. .icccccccsscesoceeesscensvesosesivens 10

Harrington v. Grayson, 764 F. Supp. 464 (1991)............... 12

Hazard v. Weinberger, 382 F. Supp. 225 (1974)........-.-:0+ 9

Hoptowit v. Spellman, 753 F.2d 779 (9th Cir. 1985).......... 12

Kentucky v. Graham, 473 U.S. 159 (1985)..........--:cecceeeeees 12

McCray v. New York, 461 U.S. 961 (1983)...........cseceeeee 13

Memphis American Fed. of Teachers v. Bd. of Ed. of Memphis,

S34 F.2d GSS CO Ga, FPF iskidcvvcccenicessccomiacents 1

Mt. City Bd. of Ed. v. Doyle, 429 U.S. 274 (1977)...........-. 10

Oyler v. Boles, 368 U.S. 448 (1962)..........::cscceccesseeeeeeeeenes 5-8

ST

-V-

Pennhurst State School and Hosp. v. Halderman,

OD ADS: OD CO oe ae een PG 9,11

Poe v. Haydon, 853 F.2d 418 (6th Cir. 1988)........0.0..00000... 12

Quern v. Jordan, 440 U.S. 332 (1979) .....cccccccccccccccceececeeeee... 9

Rizzo v. Goode, 423 U.S. 362 (1976)......cccccceccceceocecoceceeees.. 12

Seigert v. Gilley, 500 U.S. 226 (1991)..0.ccceccccccscecccossececeseseee. 8

Smith v. Eastern New Mexico Medical Center,

72 F.3d 138; 1995 WL 749712

(10th Cir. December 19, 1995)... ccc cee. 14,15

U.S. v. Hazel, 696 F.2d 473 (6th Cir. 1982)................ 5-7,16

Will v. Mich. Dept. of State Police, 491 U.S. 58 (1989)....... 12

Worcester County Trust Co. v. Riley,

Ue UE. De CP stiches ee ie 10

Wright v. Metro Health Medical Center,

oe F238 1190-6 Ce 1 ei 14

Statutes:

WB UB 6 iranian cists hoes) tied 12

Miscellaneous:

R. Stern, et. al. Supreme Court Practice,

URES. SSOP TI cciticcis cn ioctan 13

S. Baker, A Practical Guide to Certiorari,

a Cath U4. Rew. 68) ici 13

Justice Stevens, Some Thoughts on Judicial Restraint,

G6: Jenbembet® ZOO: CUSED), aici es OS 13

ae

JURISDICTION

Respondents believe the federal courts have no subject

matter jurisdiction over the claims against the State agencies

and their directors. Eleventh Amendment immunity is a bar

to suit which deprives the federal courts of jurisdiction.

Without a finding of jurisdiction, a federal court is powerless

to proceed. Ex Parte McCardle, 74 U.S. (7 Wall) 506 (1868);

Memphis American Fed. of Teachers v. Bd. of Ed. of Memphis,

534 F.2d 699 (6th Cir. 1976). Therefore, the district court

lacked subject matter jurisdiction of the claims against the

State agencies and their directors.

COUNTERSTATEMENT OF THE CASE

1. Counterstatement of the Proceedings

The complaint in this case was filed in the United

States District Court for the Eastern District of Michigan on

March 9, 1993 against Sumpter Township in Michigan and

six of its officers, administrators and board of trustees (the

Township defendants). The complaint also named the

Michigan Mobile Home Commission (MMHC); the Michigan

Department of Natural Resources (MDNR) and its director,

Roland Harmes; the Michigan Department of Public Health

(MDPH) and its director, Vernice Davis-Anthony; and Jon

Caterino (collectively referred to as the State Respondents).

At that time Mr. Caterino was an MDPH employee in the

Engineering and Environmental Services Section. He, MDPH

and Davis-Anthony are referred to herein as the Public

Health Respondents. MMHC, MDNR and director Roland

Harmes are referred to herein as the Natural Resources

Respondents.

The complaint attempted to state a selective

enforcement cause of action under the Equal Protection

Clause against all Respondents, for unequal and discrim-

inatory administration of the law. (Complaint, J 48, R 1).

The complaint did not contain the “malice” and “bad faith”

allegations which Petitioner raised for the first time in the

Court of Appeals. See Argument 5, pp 16-18, infra. All the

State Respondents except Mr. Caterino were sued in their

official capacities for injunctive relief. Mr. Caterino is the

ee

single State Respondent sued not only in his official capacity

but also in his personal capacity for both injunctive relief

and money damages.

The Public Health Respondents filed a motion to

dismiss (R 5) on March 31, 1993, which was followed by a

motion to dismiss the Natural Resources Respondents on

- April 5, 1993 (R 9). In response to the motions, Petitioner

filed only a short brief unsupported by any factual matter (R

27). Oral argument was heard April 28, 1993 (R 33), but a

decision was not rendered until eleven months later (R 42).

During the intervening eleven months the district court

conducted many settlement conferences which primarily

involved Petitioner and the Township defendants.

At a Status Conference on February 1, 1994, a dead-

line of March 15, 1994 was set by the district court for any

settlement to be finalized, after which the motions would be

decided absent a settlement. At that time Petitioner sought

permission from the Court to file “supplemental information

of a factual nature,” which was permitted to be completed

by March 1, 1994 absent a settlement. On that date,

Petitioner filed another brief 26 pages in length (R 36)

supported by a three-ring binder of documents that looked

to be about 500 pages thick (R 37).

The State Respondents’ response was confined pri-

marily to the non-factual nature of the motions to dismiss,

because the time allotted for a response to Petitioner’s

“supplemental information of a factual nature” turned out

to be wholly inadequate in light of the very large number of

documents and huge amount of material filed by Petitioner

with no warning to either the district court or State

Respondents of the magnitude of the filing that they were

contemplating. However, Respondent Caterino attached an

affidavit in Appendix A to the State Respondents’ district

court supplemental brief (R 40) describing the actions he

took, the reasons for them, and an explanation why he

believes there was no purposeful discrimination.

After passage of nearly 14 months from, the time the

Public Health Respondents’ motion to dismiss was filed--

during which time the district court made a very concerted

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_*

effort to obtain a settlement of benefit to Petitioner--the

Court finally issued its Order Granting Defendants’ Motions

to Dismiss (R 42) and Order of Dismissal (R 41), both dated

May 27, 1994. The district court held that (1) Petitioner

failed to state a claim against Respondent Caterino, (2) the

claim against Respondent Caterino was barred by qualified

immunity, and (3) the claim against all other State

Respondents was barred by Eleventh Amendment immunity.

Thereafter, further motions and briefs were filed and

orders issued that did not involve the State Respondents.

An appeal to the United States Court of Appeals for the

Sixth Circuit followed on August 8, 1994. From then until

just shortly before Petitioner’s brief on appeal was filed, the

Court of Appeals also conducted and/or supervised

numerous discussions involving primarily Petitioner and the

Natural Resources Respondents to obtain a settlement of

benefit to Petitioner. Despite the best efforts of both courts,

Petitioner has been unable to resolve his differences with any

of the State Respondents.

In an opinion issued March 13, 1996, the Court of

Appeals reversed the district court’s finding of Eleventh

Amendment immunity and held that (1) Petitioner failed to

state a claim against all State Respondents, and (2) the

claim against Respondent Caterino was barred by qualified

immunity. Petitioner’s motion for rehearing and suggestion

for rehearing en banc was denied April 26, 1996, the Sixth

Circuit issued its Judgment on May 6, 1996, and Petitioner

sought a Writ of Certiorari from this Court July 18, 1996.

2. Counterstatement of Facts.

Petitioner’s entire factual claim is a fragile web of

speculation, suspicion and innuendo, despite his extensive

use of discovery and burdensome requests for documents

under the state’s Freedom of Information Act. Even with un-

limited opportunity to make his case, Petitioner has failed to

demonstrate that Jon Caterino—who was merely performing

his duty of monitoring compliance with lawful MDNR

permit provisions--did anything that can be characterized as

wrongful or unlawful. Only his state of mind is alleged to

have been impure under the United States Constitution.

is

Respondents adopt for purposes of this Court’s review

the statement of facts in part I of the Court of Appeals

opinion in this case. (Petitioner’s appendix, pp 2- 7). While

Respondent Caterino does not agree with absolutely

everything appearing therein, he has no disagreements that

are of significance to this appeal. The only matter of

importance not mentioned by the Court of Appeals is that

Mr. Caterino did not even know Petitioner Sheldon Futernick

(Caterino affidavit, { 5; R 40), and the only “animosity” (if

it can even be called that) pointed to by Petitioner

(Petitioner’s Court of Appeals Supplemental Brief, p 7; R

36) was directed at Irvin Futernick, Petitioner’s son. This

“animosity” consisted of some idle talk, prior to the

beginning of a meeting, to the effect that Irwin was a difficult

individual to work with and made Mr. Caterino’s blood

pressure rise. Nothing was said to indicate the existence of

any “animosity” toward Petitioner. (Respondent Caterino’s

Court of Appeals Brief on Appeal, Appendices B, D and E).

REASONS FOR DENYING THE PETITION

1. There Is No Selective Enforcement Cause

Of Action For “Improper Motive,” And The

Court Of Appeals Correctly Rejected Peti-

tioner’s Invitation To Expand Unrecognizably

This Court’s Own Limitations On The

Definition Of Selective Enf

In the introduction portion of his Statement of the

Case, Petitioner injects legal argument into his factual

statement and misleads this Court in the process by

mischaracterizing the Court of Appeals’ opinion and the

parameters of his cause of action. There, Petitioner accuses

the Court of Appeals of “narrowing the breadth of the Equal

Protection Clause,” and undermining “the fundamental

fairness that the Equal Protection Clause was designed to

promote,” without citing “a single decision endorsing the

narrow scope it assigns to the Equal Protection Clause.”

(Petition for Certiorari, p 2). The Court of Appeals’ opinion

is so characterized because it rejected Petitioner’s selective

enforcement cause of action “absent an allegation that

claimant was targeted because of his or her membership in a

‘protected group’ or because of his or her exercise of a

PRP TE AOE

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constitutional right.” (Id.) The essence of Petitioner’s

argument is that fundamental fairness requires he not be

required to plead violation of any fundamental right except

the Equal Protection Clause. Aside from the self-

contradictory nature of his argument, Petitioner inaccurately

‘describes both the thoughtful and well-supported Court of

Appeals’ opinion and the limited nature of the selective

enforcement cause of action approved by this Court.

The genesis of a selective enforcement cause of action

under the Equal Protection Clause was this Court's opinion

in Oyler v. Boles, 368 U.S. 448 (1962), which made “race,

religion or other arbitrary classification” a required element.

368 U.S. at 506. In Boles, this Court approved a definition

for selective enforcement that is deliberately based on a

suspect classification. The terminology “race, religion or

other arbitrary classification” presupposes a class based

claim.

The facts in Boles involved allegations by two criminal

defendants that they had been denied equal protection

because the West Virginia habitual criminal statute had been

applied to only a minority of those subject to its provisions,

which included them. Statistics showed that a high percen-

tage of those subject to the law had not been proceeded

against. This Court held that “[e]ven though the statistics in

this case might imply selective enforcement, it was not

stated that the selection was deliberately based upon an

unjustifiable standard such as race, religion, or other

arbitrary classification.” 368 U.S. at 456. Thus, this Court

approved a definition of selective enforcement that could be

used only when invidious discrimination or other suspect

classification is present.

In contrast, the Court of Appeals has permitted a

selective enforcement cause of action when a suspect

classification appears, or when selective enforcement occurs

in retaliation for the exercise of a fundamental constitutional

right. Quoting from Boles, supra, a panel of the Court of

Appeals in U.S. v. Hazel, 696 F.2d 473 (6th Cir. 1982),

stated at 474:

“he

[It] has been held that a defendant asserting

selective prosecution: *. .. bears the heavy

burden of establishing, at least prima facie,

(1) that while others similarly situated have

not generally been proceeded against because

of conduct of the type forming the basis of the

charge against him, he has been singled out for

prosecution, and (2) that the government's

discriminatory selection of him has been

invidious or in bad faith, i.e., based upon

such impermissible considerations as race,

religion, or the desire to prevent the exercise

of his constitutional rights.’

In Hazel, the Court of Appeals approved a broader cause of

action than the one approved in Boles which required a

suspect classification. Hazel extended equal protection

guarantees to all those cases where there is intent to prevent

the exercise of an underlying fundamental constitutional

right, whether invoking a suspect classification or not.

The Court of Appeals’ opinion in the instant case relies

upon both Boles and Hazel as well as numerous other deci-

sions of this Court. (Petitioner's appendix, pp 12-14).

Moreover, the Court of Appeals in this case cited several

other Circuits that did not mention improper motive as a

prima facie case for selective enforcement. (Petitioner’s

appendix, pp 16-17, n 11). Therefore, when Petitioner

criticizes the Court of Appeals for not citing “a single

decision endorsing” its holding, he is clearly overstating the

case. Likewise, when he describes the Court of Appeals’

opinion as “narrowing the breadth of the Equal Protection

Clause,” he similarly misrepresents the limited definition of

selective enforcement circumscribed by this Court in Boles.

Instead, in reliance upon Hazel the Court of Appeals opinion

in this case actually expands this Court’s definition of

selective enforcement, but finds that Petitioner does not fit

within even that expanded definition of his cause of action.

Regardless of which interpretation of this cause of

action is used--the more stringent Boles or the more liberal

Hazel criteria--Petitioner has not alleged that he was pre-

vented from exercising a fundamental constitutional right.

———————<a$4. lll

7.

This is not a case where Petitioner was prevented from

; exercising the right of free speech or assembly, for example,

as a result of the alleged unequal enforcement. Rather, he

was prevented from continuing to violate the wastewater

surface discharge permit. This is not the kind of conduct the

equal protection selective enforcement cause of action was

intended to protect. Petitioner does not have a fundamental

constitutional right to violate the law.

. Absent a suspect classification under Boles, or at least

suppression of a fundamental constitutional right under

Hazel, there can be no selective enforcement violation of the

. Equal Protection Clause even under the more liberal

. standard utilized by the Court of Appeals in this case.

“[T]he abuse charged in this case [enforcement with impure

thoughts but no suspect classification or fundamental right

involved] is remote from the primary concern of the framers

of the equal protection clause.” Esmail v. Macrane, 53 F.3d

176 (7th Cir. 1995). Accordingly, the Court of Appeals was

certainly correct in rejecting Petitioner’s boundless

interpretation, which would transform the selective

enforcement cause of action into some kind of federal

intentional tort under the Equal Protection Clause.

2. Creation At This Time Of A Constitutional

Cause Of Action For Improper Motive Will

Not Change The Judgment For Respondent

Caterino.

Even if this Court is inclined to expand the Boles

definition of selective enforcement beyond what the Court of

Appeals did in Hazel, that would not change the result as to

Respondent Caterino, because he has qualified immunity.

The district court held that Mr. Caterino was shielded from

liability, because “his action was objectively reasonable”

and “did not violate clearly established statutory or

constitutional rights of which a reasonable person would

have known.” (Petitioner’s appendix, p 29). However,

Petitioner thinks the Court of Appeals “did not address the

qualified immunity issue.” (Petition for Certiorari, p 9, n 4).

Clearly, that is not an accurate assessment because the court

explicitly “addressed” the issue in its opinion. (Petitioner’s

appendix p 11,6). Indeed, it seems to Respondents that

.*

the Court of Appeals affirmed the district court holding

when it held that Mr. Caterino had violated no consti-

tutional right. (Petitioner's Appendix, p 21). Yet Petitioner

has not asked this Court to review the qualified immunity

issue.

In any event, from the discussion in part one above, it

is absolutely clear that no constitutional right of the nature

claimed by Petitioner existed under the Boles decision of this

Court or pre-existing decisions of the Court of Appeals.

Indeed, the Court of Appeals’ opinion now under appeal

stated, “This Circuit has not Squarely addressed the

question of what aims are forbidden ones for the purposes

of a selective enforcement action . . .” or whether “an

allegation of malice is sufficient... .” (Petitioner’s

appendix, pp 13, 14-15). Obviously, neither the Court of

Appeals nor this Court have accepted a selective

enforcement cause of action for improper motive. Because

neither this Court nor the Court of Appeals had clearly

delineated the cause of action asserted here by the time

Respondent Caterino acted, he would still have qualified

immunity even if this Court were to grant certiorari and

ultimately adopt Petitioner’s request to expand the Boles

definition. See, inter alia, Seigert v. Gilley, 500 U.S. 226, 231

(1991), which requires that the constitutional right be “clearly

established at the time the action occurred” (Emphasis

supplied) before the defense of qualified immunity can be

surmounted. Here, the constitutional “right” to be free from

selective enforcement motivated by bad faith or malice does

not yet exist, so Mr. Caterino cannot be liable for violating

such a “right.”

Indeed, in Seigert, supra, this Court reviewed a claim

that the defendant federal employee had deprived plaintiff

of a “liberty” interest by allegedly writing an adverse

employment recommendation “with bad faith and malice.”

(Id., pp 230, 232). This Court held that plaintiff had “failed

not only to allege the violation of a constitutional right that

was clearly established at the time of [defendant's] .. .

actions, but also to establish the violation of any constitutional

right at all.” (Id., p 233) (Emphasis supplied). In Seigert,

this Court found that official action motivated by malice

and bad faith did not violate the constitution and did not

Agta ohh lt al

De ot ise whe te A 2:

i a ot ee ee MaKd ay Agi ne

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overcome qualified immunity. The same is true here;

Petitioner has not stated a cause of action for selective

enforcement and has not alleged violation of a clearly

established constitutional right. As a result, qualified

immunity will dictate the same result in this case, even if this

Court grants certiorari and creates new rights.

3. Separate Grounds Support The Judgment

Of The Court Of Appeals For The State

Department Directors.

As noted in part two above, creating new consti-

tutional rights will not change the result as to Respondent

Caterino, because he is protected by qualified immunity.

Similarly, the relief Petitioner seeks will not change the

judgment granted to the State department directors either,

because they are protected by Eleventh Amendment

immunity.

In the district court, Petitioner purported to invoke the

“long-standing rule that a State Official can be sued for

Prospective equitable relief in his or her official capacity.”

(Petitioner’s District Court Brief in Response to Motions to

Dismiss, p 3; R 21). On the contrary, the long-standing rule

holds that official-capacity actions are generally barred by

the Eleventh Amendment, because they are in fact against

the State. In Pennhurst State School and Hosp. v. Halderman,

465 U.S. 89, 100-101 (1983), this Court held that the

Eleventh Amendment is a jurisdictional bar to any kind of

relief, legal or equitable, against State agencies. Petitioner

finally conceded this at the district court level.

However, analysis of the Eleventh Amendment in this

case cannot go forward without reference to another well-

established rule that “even though a state is not named a

party to the action, the suit may nonetheless be barred by

the Eleventh Amendment.” Edelman v. Jordan, 415 U.S. 651,

663 (1974); Quern v. Jordan, 440 U.S. 332 (1979); Ford Motor

Co. v. Dept. of Treasury, 323 U.S. 459 (1945). See also, Hazard

v. Weinberger, 382 F. Supp. 225 (1974) (in which it was held

that the State of New York, its officials, and particularly the

Bureau of Workers’ Compensation were immune from a civil

tort suit under the concept of sovereign immunity pursuant

-10-

to the Eleventh Amendment); Mt. City Bd. of Ed. v. Doyle,

429 U.S. 274 (1977); Alabama v. Pugh, 438 U.S. 781 (1978);

and Worcester County Trust Co. v. Riley, 302 U.S. 292 (1937).

For example, State officials sued in their official

capacities also share Eleventh Amendment immunity:

The Eleventh Amendment bars a suit against

state officials when the state is the real, sub-

stantial, party in interest. Ford Motor, supra.

Thus, ‘[t]he general rule is that relief sought

nominally against an officer is in fact against

the sovereign if the decree would operate

against the latter.’ [citation omitted] And, as

when the State itself is named, a suit against

state officials that is in fact a suit against the

State is barred regardless of whether it seeks

damages or injunctive relief.

465 U.S. at 101. Here, Ms. Davis-Anthony and Mr. Harmes

were named nominally in the complaint and the decree

would operate against the State. In fact, the equitable relief

sought in the complaint is sought expressly against “MDPH”

and “MDNR,” not the directors. Therefore, the directors are

also protected by the Eleventh Amendment from suits such

as this for equitable relief or monetary damages.

No case makes this more clear than Hafer v. Melo, 502

U.S. 21, 26 (1991), cited by Petitioner to the district court.

Hafer states:

Although ‘state officials literally are persons,’

an official-capacity suit against a state officer

‘is not a suit against the official but rather is a

suit against the official’s office. As such it is

no different from a suit against the state.’

Any suit against the State, including an official capacity suit

against a State official for prospective relief, is barred by the

Eleventh Amendment, unless it falls within the Ex Parte

Young exception permitting prospective injunctive relief

against ongoing unconstitutional conduct of the official.

seh abbas (SV! hte iiyd ye Air ead a

«1%.

Petitioner asked the Court of Appeals to broaden this

exception to permit prospective equitable relief against a

State official in his or her official capacity, on grounds of

respondeat superior, even though that official has not herself

acted unconstitutionaliy or participated in the alleged

unconstitutional conduct in any way whatsoever. The Court

of Appeals accepted Petitioner’s argument. However, this

interpretation exceeds the Ex Parte Young exception to

Eleventh Amendment immunity.

Ex Parte Young, 209 U.S. 123 (1908), carved out an

exception permitting prospective injunctive relief against a

State official enforcing an unconstitutional State statute.

Thereafter, this exception was expanded somewhat to

permit prospective injunctive relief against any uncon-

stitutional conduct by a State official whether pursuant to a

State statute or not. See, e.g., Pennhurst State School and

Hosp. v. Halderman, 465 U.S. 89 (1983). However, the Ex

Parte Young exception has never been expanded by this court

to permit prospective injunctive relief against a State official

who has not engaged in unconstitutional conduct in some

way.

The Ex Parte Young exception was accomplished by

the fiction that the individual and not the State was being

sued:

[T]he use of the name of the State to enforce

an unconstitutional act to the injury of com-

plainants is a proceeding without the

authority of and one which does not affect

the State in its sovereign or governmental

capacity .... [T]he officer . . . is in that case

stripped of his official or representative

character and is subjected in his person to the

consequences of his individual conduct.

209 U.S. at 159-160. (Emphasis supplied). Thus, the Ex

Parte Young exception is based on the pre-existence of

unconstitutional conduct by the individual. If there is no

unconstitutional conduct by the individual sued, the

exception is unsupported and inapplicable.

ea

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Plaintiffs in federal court simply may not bind a State

by prospective relief through an official-capacity suit. They

can only bind an individual State official who is accused of

unconstitutional conduct. Here, that State employee whose

conduct is at issue is also being sued in his personal capacity

for injunctive relief and money damages. Because an

iniunction is available as to him, there is no reason to issue

an injunction against Ms. Davis-Anthony or Mr. Harmes,

especially since there is no allegation in this case of an

unconstitutional policy or custom that would require such an

injunction. Therefore, the department directors are pro-

tected by the Eleventh Amendment becanse this is an

official-capacity suit against their State offices, they are not

accused as individuals of unconstitutional conduct, and they

are not stripped of their official character by the Ex Parte

Young exception.

Petitioner’s claim to the contrary in the court below

was based upon Kentucky v. Graham, 473 U.S. 159, 167

(1985); Will v. Mich. Dept. of State Police, 491 U.S. 58 (1989);

Hoptowit v. Spellman, 753 F.2d 779 (9th Cir. 1985); Adams v.

Pate, 445 F.2d 105 (7th Cir. 1971); and Harrington v.

Grayson, 764 F. Supp. 464 (1991). However, the Will,

Graham, Hoptowit, Adams and Harrington cases are all

consistent with Respondents’ argument here. When an

unconstitutional policy or custom is in place, the official

himself or herself is a participant in the unconstitutional

conduct, is stripped of official status under Ex Parte Young,

and may be enjoined as an individual, but unconstitutional

policy or custom is not alleged in this case.

This case is nearer the facts in Rizzo v. Goode, 423 U.S.

362 (1976), which rejected equitable relief under 42 U.S.C.

§1983, inter alia, because of the absence of personal

involvement by supervisory personnel in unconstitutional

conduct of various police officers. The plaintiffs in Rizzo

sought an injunction against supervisory officials who had

not engaged in unconstitutional conduct. Distinguishing

those cases in which the officials had participated

individually, this Court reversed the court of appeals and

district court who had permitted the injunction against State

officials without a showing of direct responsibility. See also,

Poe v. Haydon, 853 F.2d 418, 429 (6th Cir. 1988)

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33.

(supervisory official’s failure to supervise, control or train

the offending individual is not actionable, unless the

supervisor “either encouraged the specific incident of

misconduct or in some other way directly participated in

it.”).

The same result is appropriate here, because Ms.

Davis-Anthony and Mr. Harmes are not alleged to have

participated in any way whatsoever in any allegedly

unconstitutional conduct. Petitioner has made no allegation

that the State agencies have an institutional policy or custom

permitting or accepting selective enforcement or any other

constitutional violation, so it cannot be said that Ms. Davis-

Anthony or Mr. Harmes is even indirectly responsible.

4. There Is No Irreconcilable Or Intolerable

Conflict Between Court Of Appeals

Opinions.

Petitioner has tried to persuade this Court to review

this case because of an alleged conflict between the opinion

under review and opinions in other Circuits, as well as

another opinion of the Court of Appeals for the Sixth

Circuit. However, the opinions relied upon by Petitioner

present mere inconsistency in dicta or in general principles,

but do not create a “real,” “true,” “direct,” or

“irreconcilable” conflict (R. Stern, et. al. Supreme Court

Practice, 7th ed., 167-168 (1993))--and certainly not an

“intolerable” conflict (S. Baker, A Practical Guide to Certiorari,

33 Cath. U. L. Rev. 611, 617 (1984))--demanding this

Court’s review. In fact, there are so few selective enforce-

ment cases addressing the improper motive issue that this

Court has reasonable justification for awaiting further

development of the issue by the lower courts. See e.g., Justice

Stevens, Some Thoughts on Judicial Restraint, 66 Judicature

230, 233 (1983); McCray v. New York, 461 U.S. 961, 963

(1983) (Stevens, J) and Gilliard v. Mississippi, 464 U.S. 867

(1983) (Marshall, J).

-14-

a. There Is No Conflict Between Opinions

Of The Court Of Appeals For The Sixth

Circuit.

Petitioner claims a conflict between the opinion in this

case and the language in Wright v. Metro Health Medical

Center, 58 F.3d 1130, 1137, n 7 (6th Cir. 1995). This

contention was disposed of by the Court of Appeals’

opinion here: “In Wright, however, the issue of selective

enforcement was not addressed because the plaintiff did not

raise it below, and because the plaintiff made no allegation

as to the defendant's intent.” Therefore, the Wright opinion

cannot legitimately be said to conflict with the opinion in

this case.

b. There Is No True Or Direct Conflict

Between This Opinion And Those Of

Other Circuits.

Petitioner relies upon five Court of Appeals opinions

to support his claim of conflict. The first is Esmail v.

Macrane, 53 F.3d 176 (7th Cir. 1995), and another is Smith v.

Eastern New Mexico Medical Center, 72 F.3d 138; 1995 WL

749712 (10th Cir. December 19, 1995), which relies upon

Esmail. However, Esmail does not conflict with this case

because the facts are so dissimilar.

Here, Respondent Caterino’s enforcement action of

issuing a notice of non-compliance was entirely consistent

with and based upon the valid provisions of a surface

wastewater discharge permit that Petitioner indisputably

had not complied with. Moreover, Mr. Caterino’s decision

was only the first step in an administrative process--the

result of which is appealable to court--that includes

evidentiary hearings, where Mr. Caterino’s actions would be

reviewed and his decision could easily be changed by either

the MDNR or the MMHC. In contrast, Esmail involved “an

orchestrated campaign of official harassment directed

against .. . [the plaintiff] out of sheer malice.” 53 F.3d at

179. “[T]he unequal treatment is alleged to have been the

result solely of a vindictive campaign by the mayor” who

“harbors a malignant animosity toward him.” (/d.) The

Esmail opinion states the Equal Protection Clause can be “a

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-15-

kind of last-ditch protection against governmental action

wholly impossible to relate to legitimate government objectives.”

(Id. at 180) (Emphasis supplied). The facts in that case are

so different from the facts in the instant case--where Mr.

Caterino’s actions served only to begin an administrative

review process--that a real conflict does not exist between

Esmail or Smith.

Moreover, Smith is an unpublished opinion that--in

addition to being heavily reliant on Esmail--is also

characterized by allegations indicating that defendant

exercised unfettered discretion to “oppress” the plaintiff.

(Slip opinion, pp 8-9). Likewise, Burt v. City of New York,

156 F.2d 791 (2d Cir. 1946), also relied upon by Petitioner,

is dependent upon allegations of “unlawful oppression”

(156 F.2d at 793) that have never been made here. Instead,

aside from the claims of improper motive made for the first

time on appeal, Mr. Caterino is not charged with unlawful or

oppressive conduct.

Another of Petitioner’s cases, Batra v. Bd. of Regents of

Univ. of Nebraska, 79 F.3d 717 (8th Cir. 1996), does not pre-

sent a real conflict because the plaintiffs in that case claimed

to be part of a protected class (Id. at 719), which Petitioner

in this case does not. Additionally, Batra required “ unlawful

intent to discriminate against plaintiff for an invalid reason.”

(Id. at 721) (Emphasis supplied). As noted above, if not for

the claim of improper motive made on appeal, Mr.

Caterino’s actions were otherwise lawful, and were taken for

valid reasons, clearly related to legitimate government

objectives.

Petitioner’s remaining cases from the First and Second

Circuits were dealt with in the Court of Appeals’ opinion

under appeal. The Court of Appeals found it “unwise to

adopt the often-stated, but never-used rule of the First and

Second Circuits.” (Petitioner's appendix, p 16). Examining

a number of cases from the Courts of Appeals for the First

and Second Circuits, the Court of Appeals in this case found

that, while these other Circuit Courts said they will allow

relief for malice in selective enforcement, neither “has ever

affirmed a victory for plaintiff on such a theory.” (Id. at

15).

~16-

Thus, the incongruity among these opinions that

Petitioner cites appears, upon closer examination, to be more

imaginary than real, and more of an inconsistency in dicta or

disagreement over general principles than true, direct,

irreconcilable conflict. Accordingly, the state of the case law

in the various Circuits relied upon by Petitioner does not

demand this Court’s review.

5. The Issue Of Improper Motive Was Not

Raised In The District Court.

The Court of Appeals’ opinion correctly notes the lack

of any allegation of impermissible intent in the complaint

upon which the district court ruled. (Petitioner’s appendix,

pp 14-15, n 9). But the Court of Appeals incorrectly

suggests “malice” and “bad faith” appeared in the district

court briefs and arguments. (Id.) On the contrary, the term

“bad faith” used to describe Mr. Caterino’s motive did not

appear in Petitioner’s argument until his appellate lawyers

apparently deemed it necessary for their success under the

bad faith criterion of Hazel, supra, and that term was then

placed in Petitioner’s Brief on Appeal to the Court of

Appeals for the first time. The word “malice” did not

appear to describe Mr. Caterino’s motive until it was used

for the first time for that purpose in the Petition for

Rehearing and Suggestion for Rehearing En Banc in the Court

of Appeals, presumably to take advantage of the authority

now being cited. Indeed, on page 7 of his district court Brief

in Response to Motion to Dismiss (R 21), Petitioner wrote,

“the facts upon which Futernick relies do not even involve

subjective intent or motivation... .”

In the complaint (R 1), the only allegations against Mr.

Caterino were that the failure of MDNR, Mr. Caterino and

the MDPH to enforce against other mobile home parks was a

result of purposeful and intentional discrimination against

Petitioner, which allegedly constituted unequal and dis-

criminatory administration of the law ({ 48). This was the

allegation being made at the time the State Respondents’

motions were filed.

In his district court brief for injunctive relief (R 17),

Petitioner for the first time made allegations, not specifically

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-17-

naming Mr. Caterino, that “state officials got together with

Sumpter Township to coerce . . . [Petitioner] into making

financial contributions toward construction of the Sumpter

Township sewer system.” (Petitioner’s District Court

Preliminary Injunction Brief, pp 16-17; R 17). The severity of

the allegations made were thus raised a level in a brief

without the citation of any supporting evidence or amend-

ment of the complaint. Moreover, the level of severity was

raised another notch during oral argument at the hearing

conducted by the district court on April 28, 1993 (R 33),

where Petitioner labeled the alleged conduct a3 a conspiracy

to deprive him of money. (Transcript of April 28, 1993

District Court hearing, pp 21-22). In his third brief to the

district court (R 36) on these issues, Petitioner raised the

level of rhetoric even higher (still with no evidence that

supported such conclusions or any amendment to the

Complaint) by charging Mr. Caterino alone with (1)

“conspiracy and collusion with Sumpter Township and its

officials to extract money from Futernick under the guise of-

and utilizing the threat of--regulatory action,” and (2)

“vastly disparate regulatory treatment over the years.”

(Petitioner's Court of Appeals Supplemental Brief, p 1; R

36). Still, there was no use of the terms “malice” or “bad

faith” by Petitioner.

In the Court of Appeals Petitioner’s factual allegations

metamorphosed into a claim that State officials (not

specifically naming Mr. Caterino) violated Petitioner’s

constitutional rights “when they subjected him to stringent

permit requirements while leaving other mobile home parks

in the area unmolested, because this disparate treatment

was motivated by a bad faith purpose either arising out of

personal animus or intent to collude with the township in an

attempt to exclude him from the sewer system.”

(Petitioner’s Court of Appeals Brief on Appeal, pp 16-17).

As to Mr. Caterino, Petitioner then stated “the evidence is

overwhelming that Caterino’s selective enforcement was

motivated by bad faith based on either personal animus or

his intent to collude with the township in its efforts to

exclude Mr. Futernick’s parks from the sewer system.” (Id.,

p 47.) (Emphasis supplied). So “bad faith” surfaces for the

first time in Petitioner’s appellate brief, but there is still no

use of the term malice.

| ee

-18-

Allegations of “malice” did not appear until the

Petition for Rehearing in the Court of Appeals and the

Petition for Certiorari filed with this Court. Now the

allegations have risen and transmogrified from the relatively

benign recitation contained in the complaint to the emotion-

filled claims of animus or bad faith appearing for the first

time in Petitioner’s Court of Appeals brief and the

exaggerated claims of malice deemed necessary by

Petitioner’s appellate lawyers to make his claims fit the new

case law they cite here. This change in the charges and

Petitioner’s tone has all occurred without any amendment to

the complaint or any real change in the underlying factual

allegations.

Mr. Caterino is still accused, as he was in the

complaint, of not having accepted Irwin Futernick’s version

of the arrangement with the township for sewers, and to

have insisted on hearing these assurances himself. His

insistence was actually provident, because it turned out that

Petitioner’s son, Irwin, had no agreement of substance with

either MDNR or Sumpter Township. Mr. Caterino’s

persistence and subsequent issuance of a Certificate of Non-

compliance, after the vaporous nature of Irwin’s assurance

was revealed, is conduct to be commended in a public

official, not conduct to be disparaged.

This is the conduct that Mr. Caterino has been charged

with from the beginning. Petitioner’s appellate lawyers now

attribute different motives to Mr. Caterino’s actions, but the

basic conduct remains unchanged. This is not uncon-

stitutional conduct; enforcement of valid permit provisions

several months after violations began does not trample on

any known constitutional right, regardless of motive.

6. The Issue Of Improper Motive Does Not

Constitute A Question Of Wide Constitu-

tional Importance.

The Court of Appeals opinion observes that improper

motive for enforcing state law is not the kind of issue that

the constitution was designed to prevent. “[We] see

compelling reasons that the sundry motivations of local

regulators should not be policed by the Equal Protection

REPRO AP LE FO he

Mia ii eed, SEB La? eae nie Dah Bs aE bev

-19-

\

Clause of the United States Constitution, absent the intent

to harm a protected group or punish the exercise of a

fundamental right.” (Petitioner's appendix, p 17). One of

the reasons for not accepting Petitioner's invitation to further

expanc the selective enforcement cause of action was that

“we federalize and constitutionalize what are essentially

issues of local law and policy.” (Id., pp 18-19). Thus, the

Court of Appeals recognized that the remedy for Petitioner’s

claim, if any is needed, must be found under State law.

a. State Tort Laws And Hearing Procedures

Provide Adequate Remedies, If Any Are

Needed, For State Action Allegedly Based

Upon Improper Motive.

The Court of Appeals observed that “[rjegulation out

of personal dislike or vendetta is repugnant to the American

tradition of the rule of law,” but accepted the proposition

that “the states themselves are vibrant defenders of this

tradition.” (Id., p 19). The States may be trusted to police

adequately their own processes. As a low level State

employee, Respondent Caterino is not in a position to

“overawe” (Petition for Certiorari, p 18) State court judges.

He is not a powerful State official, but only a district

engineer trying to do his job as he sees it. Indeed, the Court

of Appeals noted that Petitioner has recourse through State

political processes, State courts on State constitutional

grounds, or State courts on federal due process grounds

ultimately reviewable by this Court. To this list of possible

State remedies can be added State tort law and hearing

procedures. If States, through their courts, see abuse of

official authority as a problem needing a solution, State tort

remedies can be adopted by common law or statutory

provisions. Moreover, as noted in part 4b above, either

MDNR or MMHC can refuse to proceed against Petitioner if

they view Mr. Caterino’s actions as inappropriate. There is

no need to expand the existing federal selective enforcement

remedy to address the “sundry motivations” of State

regulators.

-20-

b. The Improper Motive Alleged In This Case

Is Non-Recurring And Of A Unique Factual

Nature With No Significant Public Impact. _

As noted in part three above, there are no allegations

in this case of a State policy or custom that suggests a broad

design or widespread failure to police selective enforcement

within the State departments. Rat'w:r, the allegation is that

Respondent Caterino personally dislikes Petitioner. As

noted in the above Statement of Facts, Mr. Caterino does not

even know Petitioner, so he cannot by definition have any

animosity toward him. Be that as it may, the point is that

the issue of Mr. Caterino’s animosity for Petitioner, or that

of any given State regulator, is not a matter of grave public

importance, does not have significant public impact, and

does not implicate national constitutional concerns. “The

Constitution’s protection begins only when the incidence of

the burden of regulation becomes constitutionally

suspicious.” (Petitioner’s appendix, p 19). Here, no such

concerns attend the allegations, and this case is not worthy

of review at this level.

-21-

CONCLUSION

For the above reasons, the Petition for Certiorari

shouid be denied, and the Court of Appeals’ refusal to

expand further this Court’s narrowly circumscribed

definition of the selective enforcement cause of action should

stand unchanged.

Respectfully submitted,

FRANK J. KELLEY

Attorney General

Thomas L. Casey

Solicitor General

Counsel of Record

P. O. Box 30212

Lansing, Michigan 48909

(517) 373-1124

R. Philip Brown

John C. Scherbarth

Assistant Attorneys General

Attorneys for Respondents

Jon Caterino, Roland Harmes

and Vernice Davis-Anthony

Dated: September 16, 1996

CASES /Futernick