Opposition Brief — Children's Healthcare Is a Legal Duty, Inc. v. Montgomery

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PE PL TE TE ee

RCE AE ATTEN

No. 96-991 JAN 23 1997

0. 96-

S_ERA

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1996

CHILDREN’S HEALTHCARE IS A LEGAL DUTY,

et al.,

Petitioners,

BETTY D. MONTGOMERY,

Attorney General of Ohio,

Respondent.

On Petition For Writ of Certiorari

To The United States Court of Appeals

For The Sixth Circuit

RESPONDENT?’S BRIEF IN OPPOSITION

BETTY D. MONTGOMERY

OHIO ATTORNEY GENERAI

JEFFREY S. SUTTON

State Solicitor

SUSAN E. ASHBROOK

Counsel of Record

ANDREW S. BERGMAN

Assistant Attorneys General

30 East Broad Street, 17th Floor

Columbus, Ohio 43215

(614) 466-2766

QUESTIONS PRESENTED FOR REVIEW

Whether the Ex Parte Young exception to the

Eleventh Amendment allows the Ohio Attorney

General to be sued, not because of any allegedly

illegal action or inaction on her part, but solely

because of her official position.

Whether Petitioners have standing when they have

suffered no injury in fact, and any injury they may

suffer is not caused by the conduct of Respondent and

would not be redressed by a favorable opinion.

—————E——

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW .......

TABLE OF CONTENTS .................. ii

| TABLE OF AUTHORITIES ................ iii

| STATEMENT OF THE CASE ...............

| REASONS WHY THE PETITION

SHOULD BE DENIED ................... 3

|. THE SIXTH CIRCUIT’S ANALYSIS OF

EX PARTE YOUNG IS IN ACCORD

WITH THIS COURT’S DECISIONS. ..... 3

ll. THERE IS NO MEANINGFUL LOWER

COURT CONFLICT OF AUTHORITY

ON THE QUESTION PRESENTED. ..... x

lll. PETITIONERS LACK ARTICLE III

ET ae 13

EE ee ee eee 16

ill

TABLE OF AUTHORITIES

Page

CASES

Ist Westco Corp. v. School District of Philadelphia,

6 F.3d 108 (3rd Cir. 1993) 2... ccc ccc cccvcces 8

Akron Center for Reproductive Health v. Rosen,

633 F.Supp. 1123 (N.D. Ohio 1986),

aff'd on other grounds, 854 F.2d 852 (6th Cir. 1988),

rev'd on other grounds, 497 U.S. 502 (1990) ....... )

Allied Artists Picture Corp. v. Rhodes,

473 F.Supp 560 (S.D. Ohio 1979), on reexamination,

496 F.Supp. 408 (1980), modified on other grounds,

679 F.2d 656 (6th Cir. 1982) ........240e 10, 11

Children’s Healthcare is A Legal Duty v. Montgomery,

92 F.3d 1412 (6th Cir. 1996) ........... 11, 14, 15

Coon v. Tingle,

277 F.Supp. 304 (N.D. Ga. 1967) ........055e- 10

Diamond vy. Charles,

Cs OS SEC ckewsvedaevrsaceasvenwens 15

Doe v. Bolton,

319 F.Supp. 1048 (N.D. Ga. 1970),

aff'd, 410 U.S. 179 (1973) 2. we ee ee eee eee 12

Dombrowski v. Pfister,

; Ste. |. rrr es ee ee ee

ea A OE SESS ae

Edwards v. Aguillard,

ot & fi. | Pee eT ere Tero Se re 7

Epperson v. Arkansas,

ee ee Oe GE wk ae a beens eee eae 7

Ex Parte Young,

ae Se Ce eo Cae eee wee een passim

Gras v. Stevens,

415 F.Supp. 1148 (S.D.N.Y. 1976) ............ 10

Hatfield v. Williams,

376 F.Supp. 212 (N.D. Iowa 1974) ............ 10

Kentucky v. Graham,

ee ws Se ee 0 66 oS 6 we oe hee Ce eee 3

Linda R.S. v. Richard D.,

— fe Ft eee ee ere 15

Long v. Van de Kamp,

by 2 a tt ee. |. rere rrr 9

Lujan v. Defenders of Wildlife,

ae as Se Cee 646) 0s 85s oo eee es 13, 16

Mendez v. Heller,

oe mw Fey fe A. eee fe)

Morales v. Trans World Airlines,

Fem Ft, ee rr re tr i F 5

Pennhurst State School & Hospital v. Halderman,

Tae Wa. Ge GE nse eh eh we 0s cee eel 6

Pennsylvania v. West Virginia,

i rn. OL os hoes k Owe ene 7

Perez v. Ledesma,

ne oe ee 6

Pierce v. Society of Sisters,

Wee Ws OUP ODN cwecccvceoveretevsebeen 7

Roe v. Wade,

ae Ws BE CUOTED ccccecsececwecivcbeuuu 7

Seminole Tribe v. Florida,

ete sg BBD Bete NEES CIGD. cc cccceer 7

Shell Oil v. Noel,

608 F.2d 208 (Ist Cir. 1979) ................. y

Sherman v. Community Consolidated School District

21 of Wheelington Township, 980 F.2d 437

(7th Cir. 1992), cert. denied, 508 U.S. 950 (1993)... . 8

Steffel v. Thompson,

MED Wide SOS CTGTO) wc ccccccvcccsévcervesen 6

Stone v. Powell,

428 U.S. 465 (1976) ................... 1, 12

Terrace v. Thompson,

263 U.S. 197 (1923) 2... ee eee ee eS

United States v. Hayes,

= » 115 S.Ct. 2431 (1995) ... 2.0.0... . 13

Western Union Tel. Co. v. Andrews,

216 U.S. 165 (1910) ......00........2......5

Yniguez v. Mofford,

730 F.Supp. 309 (D. Ariz. 1990),

aff'd in part and rev'd in part, on other

grounds, 939 F.2d 727 (9th Cir. 1991),

cert. granted, 116 S.Ct. 1316 (1996) ............ )

CONSTITUTIONAL PROVISION

U.S. Const. Amendment XI.............. passim

STATUTE

Declaratory Judgment Act,

Pee OED ob oh oN e ce ae eee backs 6

STATEMENT OF THE CASE

Notwithstanding Petitioners’ lengthy discussion of the

merits of the case, the only issue before this Court is a

jurisdictional one. Petitioners have brought this suit against

the Attorney General of Ohio, not because of any past,

current or threatened unconstitutional conduct on her part,

but merely as a way to bind the State of Ohio. The Sixth

Circuit correctly held that the Eleventh Amendment prevents

a federal court from proceeding on this basis, and that the

exception carved out in the Eleventh Amendment by Ex

Parte Young, 209 U.S. 123 (1908), is inapplicable.

Petitioners imply that the Sixth Circuit’s decision

forecloses review of the statutes they challenge. This is

incorrect for two reasons. First, Petitioners may seek review

in State court, which is an adequate venue for their

constitutional claims. See Stone v. Powell, 428 U.S. 465,

495 n. 35 (1976) (“State courts, like federal courts, have a

constitutional obligation to safeguard personal liberties and

to uphold federal law.”). Second, Petitioners may seek

federal court review by bringing this suit against the local

county or city prosecutor. In fact, Petitioners initially did

include local prosecutors in their suit. But when those

prosecutors were dismissed by the district court, Petitioners

did not appeal or cross-appeal that issue. Petitioners cannot

use their failure to pursue the appropriate party as evidence

that no federal review is available.

REASONS WHY THE PETITION

SHOULD BE DENIED

I. THE SIXTH CIRCUIT’S ANALYSIS OF EX PARTE

YOUNG IS IN ACCORD WITH THIS COURT'S

DECISIONS.

The Eleventh Amendment prohibits suits against state

officials when, as here, they are sued in their official

capacity. Kentucky v. Graham, 473 U.S. 159, 167 (1985).

Ex Parte Young provides an exception for suits seeking to

prevent a state official from violating or continuing to violate

the federal constitution. In the decision below, the Sixth

Circuit correctly analyzed Ex Parte Young as allowing a

federal court to enjoin a state official from acting

unconstitutionally. The court thus concluded that the Ex

Parte Young doctrine has no applicability to a case, such as

the present one, where there has been no action or threatened

action on the part of the state official. This analysis fully

accords with the decisions of this Court.

Beginning with Ex Parte Young itself, this Court has

consistently held that a federal court may enjoin a state actor

from violating or threatening to violate the constitution.

Thus,

individuals who, as officers of the state, are

clothed with some duty in regard to the

enforcement of the laws of the state, and

who threaten and are about to commence

proceedings, either of a civil or criminal

nature, to enforce against parties affected an

unconstitutional act, violating the Federal

Constitution, may be enjoined by a federal

court of equity from such action.

209 U.S. at 155-156 (emphasis added). Adherence to this

standard is necessary if the Eleventh Amendment is to have

any vitality. Without the requirement that an official be

connected to a statute and be acting pursuant to that statute,

the Eleventh Amendment would offer no immunity protection

to state officials such as the Attorney General. The Attorney

General could be sued over her objections every time a

plaintiff wanted to challenge the constitutionality of a statute,

a result that would be convenient for the plaintiff, but

inconsistent with the Eleventh Amendment. '

The Court has been careful to adhere to this

distinction in case after case. See e.g., Morales v. Trans

World Airlines, 504 U.S. 374, 381 (1992) (state attorney

generals may be enjoined because they “had made it clear

that they would seek to enforce the challenged” statute);

Dombrowski v. Pfister, 380 U.S. 479, 483-484 (1965) (a

federal injunction against a state prosecution would be

justified where state officers threaten and are about to

commence unlawful proceedings); Terrace v. Thompson, 263

U.S. 197, 214 (1923) (“Equity jurisdiction will be exercised

to enjoin the threatened enforcement of a state law which

contravene the federal Constitution. . . .”); Western Union

Tel. Co. v. Andrews, 216 U.S. 165, 166 (1910) (Ex Parte

‘Petitioners cite numerous statues which allocate certain criminal

law enforcement duties to the Attorney General. Attorney General

Montgomery agrees that she has many important law enforcement

duties. This is not the issue before this Court. The issue before

this Court is whether Attorney General Montgomery has acted, is

acting or has threatened to act in violation of Petitioners’

constitutional rights.

Young is applicable because prosecutors are charged with

enforcement and have threatened and are about to commence

enforcement of the unconstitutional act).

Petitioners attempt to avoid the conclusion that the

decision below is in accord with this Court’s precedents in

two ways. First, they attempt to distinguish the present case

because they seek declaratory as well as injunctive relief,

relying on Steffel v. Thompson, 415 U.S. 452 (1974) and

Perez v. Ledesma, 401 U.S. 82, 93 (1971) (Brennan, J.,

concurring in part and dissenting in part). Contrary to the

Petitioners’ assertions, these cases do not hold that the

Declaratory Judgment Act, 28 U.S.C. § 2201, is a separate

exception to the Eleventh Amendment. Indeed, the Eleventh

Amendment’s “jurisdictional bar applies regardless of the

relief sought.” Pennhurst State School & Hospital v.

Halderman, 465 U.S. 89, '90 (1984). Nothing in the

Declaratory Judgment Act establishes the requisite

unequivocal intent of Congress to abrogate the Eleventh

Amendment, Seminole Tribe v. Florida, _ _—=s~U.S. __,

116 S.Ct. 1114, 1123 (1996), even assuming Congress had

the power to do so.

Petitioners also attempt to avoid the Sixth Circuit's

conclusion that Ex Parte Young requires action on the part of

the state official by citing numerous cases that have allowed

facial challenges to state statutes even where there was no

threatened enforcement. See Pet. at 16 (citing e.g. Edwards

v. Aguillard, 482 U.S. 578 (1987); Roe v. Wade, 410 U.S.

113 (1973); Epperson v. Arkansas, 393 U.S. 97 (1968);

Pierce v. Society of Sisters, 268 U.S. 510 (1925);

Pennsylvania v. West Virginia, 262 U.S. 553 (1923)). None

of these cases, however, contain any Eleventh Amendment

analysis, let alone any analysis of Ex Parte Young.

In the last analysis, Petitioners have failed to assert

that the Ohio Attorney General has, through either action or

inaction, done anything to violate Petitioners’ constitutional

rights. Nor have Petitioners alleged that the Attorney General

is threatening to do so. Under these facts, the Eleventh

Amendment does not allow a suit to be maintained against

the Attorney General without her consent.

Il. THERE IS NO MEANINGFUL LOWER COURT

CONFLICT OF AUTHORITY ON THE QUESTION

PRESENTED.

The vast majority of lower courts have dismissed

suits that were brought against a state Attorney General not

because of any actual or threatened conduct, but merely

because of his or her office. That, of course, is in accord

with the Sixth Circuit’s decision below.

For example, the decision below is in accord with

the following circuit decisions. /st Westco Corp. v. School

District of Philadelphia, 6 F.3d 108, 114 (3rd Cir. 1993)

(Attorney General dismissed because, inter alia, he had not

enforced or threatened to enforce the statute); Sherman v.

Community Consolidated School District 21 of Wheelington

Township, 980 F.2d 437 (7th Cir. 1992) (Attorney General

must be dismissed from suit attacking constitutionally of

requiring Pledge of Allegiance in schools because “Plaintiffs

apparently named the office of the Attorney General in an

effort to obtain a judgment binding the State of Illinois as an

entity, a step that Congress did not authorize when enacting

42 U.S.C. §1983, and that the Eleventh Amendment does not

permit in the absence of such authorization.”) cert. denied,

113 S.Ct. 2439 (1993); Long v. Van de Kamp, 96i F.2d

151, 152 (9th Cir. 1992) (Attorney General dismissed

because “[a]bsent a real likelihood that the state official will

employ his supervisory powers against Plaintiffs’ interests,

the Eleventh Amendment bars federal court jurisdiction.”).

See also Shell Oil v. Noel, 608 F.2d 208 (ist Cir. 1979);

Mendez v. Heller, 530 F.2d 457 (2nd Cir. 1976). Numerous

district courts have agreed. Yniguez v. Mofford, 730 F.Supp.

309, 311 (D. Ariz. 1990), aff'd in part and rev’d in part, on

other 2rounds, 939 F.2d 727 (9th Cir. 1991), cert. granted,

116 S.Ct. 1316 (1996); Akron Center for Reproductive

Health v. Rosen, 633 F.Supp. 1123, 1130 (N.D. Ohio 1986),

aff'd on other grounds, 854 F.2d 852 (6th Cir. 1988), rev'd

on other grounds, 497 U.S. 502 (1990); Gras v. Stevens, 415

F.Supp. 1148, 1151 (S.D.N.Y. 1976); Hatfield v. Williams,

376 F.Supp. 212, 215 (N.D. lowa 1974); Coon v. Tingle,

277 F.Supp. 304 (N.D. Ga. 1967).

Petitioners attempt to escape the weight of this

authority by relying on two cases’ where a court has found

that Ex Parte Young does not require any conduct on the part

of the defendant. The first is Allied Artists Picture Corp. v.

Rhodes, 473 F.Supp 560 (S.D. Ohio 1979), on

reexamination, 496 F.Supp. 408 (1980), modified on other

grounds, 679 F.2d 656 (6th Cir. 1982). Obviously, Allied

presents at most an intra-circuit conflict, not an inter-circuit

*Petitioners also mistakenly claim that Shell Oil supports them. In

Shell Oil, the First Circuit acknowledges that “the mere fact that

an attorney general has a duty to prosecute all actions in which the

State is interested” is not enough to make him a proper defendant

in such action. 608 F.2d at 211. The issue was whether the

Attorney General was indeed sufficiently connected and authorized

to enforce the statute. The court found that issue to be undecided

under state law, and declined to speculate on it. 608 F.2d at 212.

The court did not hold that the Attorney General was a proper

defendant.

conflict. More importantly, the issue presented in Allied --

whether a plaintiff can be completely foreclosed from

obtaining any federal review of an allegedly unconstitutional

Statute -- is not presented here. In Allied, plaintiffs were

attempting to enforce a statute that had no enforcement

mechanism, and therefore, there was no state official

connected to its enforcement. Had the Governor been

allowed to assert his Eleventh Amendment immunity

successfully, the statute could not have been reviewed in

federal court. Allied, 679 F.2d at 665 n. 5.

Allied is distinguishable from the present case because in

this instance, the local prosecutors are the state officials with

plenary enforcement authority over the statutes at issue.’ See

Children’s Healthcare Is A Legal Duty v. Montgomery, 92

F.3d 1412, 1416 (6th Cir. 1996); Pet. App. at 10a. Notably,

*Petitioners are incorrect in suggesting that because they challenge

an exemption to a criminal statute, the statute is “self enforcing.”

If a child were endangered and a prosecutor refused to bring an

action because of this exemption, the prosecutor would be

enforcing the exemption. Criminal statutes simply are not “self

enforcing.”

;

however, Petitioners have failed to challenge the district

court’s dismissal of the county and city prosecutor, and

therefore, they are no longer defendants in this case. Thus,

foreclosure of federal review results not from anything the

Attorney General has done and not from the Sixth Circuit’s

correct analysis of Ex Parte Young, but from Petitioners’

failure to cross-appeal the district court’s decision.‘

The second case relied on by Petitioners to

demonstrate a split of authorities with regard to the correct

interpretation of Ex Parte Young is Doe y. Bolton, 319

F.Supp. 1048 (N.D. Ga. 1970), aff'd, 410 U.S. 179 (1973).

In Doe, the district court found that the State Attorney

General’s general law enforcement duties were a sufficient

basis under Ex Parte Young to justify federal court

“Moreover, Petitioners may always seek review of the validity of

the statute in state court, which is fully capabie of adjudicating

federal constitutional rights. Stone v. Powell, 428 U.S. 465, 495

n. 35 (1976). And because Ohio has an appellate review which

culminates in the Ohio Supreme Court, whose decisions are

binding on the entire state, there is no need to sue separately in 88

counties.

jurisdiction. This finding was not a prerequisite for federal

jurisdiction, however, as a local district attorney was also a

party. Moreover, the Ex Parte Young issue was not raised

in the appeal to this Court, and therefore, was not addressed

in this Court's decision. The district court’s decision is

against the weight of the more recent precedents cited above.

This single case, which at most creates a lopsided split of

authority, simply does not present a conflict meriting review

by this Court.

Ill. PETITIONERS LACK ARTICLE III STANDING.

The Writ should also be denied because Petitioners

lack standing. In order to establish standing, Petitioners

must demonstrate: (1) a concrete injury in fact; (2) a causal

connection between the injury and Defendant’s conduct; and

(3) a likelihood that the injury will be redressed by a

favorable decision. United States v. Hayes, ___ U.S. __,

115 S.Ct. 2431, 2435 (1995); Lujan v. Defenders of Wildlife,

504 U.S. 555, 560-561 (1992). In the instant case,

i i

Petitioners lack standing because the statute does not cause

a concrete injury connected to the conduct of the Attorney

General. See Children’s Healthcare, 92 F.3d at 1420-25 (6th

Cir. 1996) (Batchelder, J., concurring); Pet. App. at 17a-

29a.

As Judge Batchelder correctly found, the only

possible injury to Petitioners is that they may not be provided

adequate medical care. Children’s Healthcare, 9.) F.3d at

1492; Pet. App. at 24a. This alleged injury is not, however,

causally related to the conduct of the Ohio Attorney General,

or even to the existence of the statute. Nor is a favorable

decision likely to redress the alleged injury. In fact, this

injury, if it exists at all, is traceable only to the parents or

guardians of the affected children. In asserting that the

alleged lack of care is a result of a statutory exemption,

Petitioners are asking this Court to speculate abot the

motivations of persons not even a party to this suit. It is not,

for instance, unreasonable to conclude that these persons’

conduct is guided not by the statute, but by their religion. If

such is the case, the alleged injury is not traceable to the

conduct Petitioners seek to have declared unconstitutional,

nor would such a declaration remedy the alleged injury.

Petitioners also allege that their constitutional rights

are violated because the statute prevents prosecution of their

parents if their parents withhold medical treatment for

spiritual reasons. This is not an “injury in fact” under

Article III. Neither Petitioners nor anyone else has a right

to have another person prosecuted for a crime. Linda R.S.

v. Richard D., 410 U.S. 614, 618 (1973); Diamond y.

Charles, 476 U.S. 54 (1986). See also, Children’s

Healthcare, 92 F.3d at 1422 n. 5; Pet. App. at 23a, n. 5.

Thus, even if Petitioners are potential victims of an

unconstitutional statute, they have no right to have their

assailents prosecuted, as distinct from any remedial right they

may have against their assailants. Therefore, the State’s lack

of prosecution of this class of potential defendants cannot

invade a “legally protected interest,” Lujan, 504 U.S. at 560-

61, and cannot rise to the level of injury in fact.

CONCLUSION

For the foregoing reasons, the writ should be denied.

Respectfully submitted,