# Opposition Brief — Futernick v. Caterino > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1167%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1996 - **Citation:** 519 U.S. 928 ## Text 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? - a ee 7 é -ii- 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 = ae ee _* 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 -5- 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. ———————