Opposition Brief — Court of Common Pleas of Ohio v. Popovich

Suvpiceus Court Le

FILED

No. 01-1503

tO dH be Mee

Jn The OFFICE OF TI as

Supreme Court of the United States

¢

CUYAHOGA COUNTY COURT OF COMMON PLEAS,

DOMESTIC RELATIONS DIVISION,

Petitioner.

JOSEPH M. POPOVICH

AND UNITED STATES OF AMERICA,

Respondents.

*

On Petition For A Writ Of Certiorari To The

United States Court Of Appeals

For The Sixth Circuit

*

RESPONSE TO PETITION

FOR A WRIT OF CERTIORARI

+

RICHARD C. HABER, ESQ.

BRIAN D. SULLIVAN, ESQ.

Counsel of Record

REMINGER & REMINGER Co., L.P.A.

1400 Midland Building

101 Prospect Avenue, West

Cleveland, Ohio 44112

(216) 687-1311

Attorneys for Respondent,

Joseph M. Popovich

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Does Title II of the ADA, 42 U.S.C. §§ 12131 to 12165

(2002), exceed Congress’s enforcement authority un-

der § 5 of the 14th Amendment, thereby failing to val-

idly abrogate the state’s 11th Amendment immunity

from private damage claims?

Does the abrogation analysis of Title II of the ADA, 42

U.S.C. §§ 12131 to 12165 (2002), differ when an indi-

vidual Title II claim is purportedly tied to due process

concerns, rather than equal protection concerns?

1

ARGUMENT IN REPLY

Petitioner, Cuyahoga County Court of Common Pleas,

Domestic Relations Division seeks this Court’s review of

whether Congress validly abrogated the state’s 11th

Amendment immunity by enacting Title II of the Ameri-

cans with Disabilities Act. Concurrent with the filing of

this Petition, the Respondent likewise filed a Petition for

Certiorari, seeking review upon two issues:

1. Does a state waive its 11th Amendment

immunity by its affirmative litigation

conduct when it enters an appearance,

defends on the merits for several years, seeks

a judgment on the merits, and fails to raise

the llth Amendment immunity in the

district court or in its original brief on

9

2. PRR _ exceed its authority under § 5

of the 14th Amendment when it enacted Title

II of the Americans with Disabilities Act and

abrogated the state’s immunity from suit?

(See Petition for Writ of Certiorari of Joseph Popovich,

Case No. 01-1517)

Subsequent to the filing of both Petitions for Writ of

Certiorari (Case Nos. 01-1503 and 1-1517) this Court

rendered the decision in Lapides v. Board of Regents of the

University System of Georgia. The Lapides decision war-

rants the denial of the Domestic Relation’s Court Petitions

to the extent it require the Court to address the substan-

tive arguments regarding congressional authority in

abrogating a state’s immunity from suit. Rather, the Court

should grant Popovich’s petition for certiorari on the issue

of whether the state waived its immunity defenses by its

2

litigation conduct and remand the matter to the Sixth

Circuit for consideration of the Lapides decision.’

In Lapides, this Court addressed the issue of whether

the State waives its 11th Amendment immunity by virtue

of its removal of state court proceedings to federal court.

The Court’s decision in Lapides clarifies confusion which

had permeated 11th Amendment jurisprudence and was

evident in the lower Court’s decision. Justice Briar ob-

served that “an interpretation of the 11th Amendment that

finds waiver in the litigation conduct rests upon the

amendment’s presumed recognition of the judicial need to

avoid inconsistency, anomaly, and unfairness, and deny

upon the State’s actual preference or desire, which might,

after all, favor selective use of ‘immunity to achieve

litigation advantages.” Lapides, slip opinion on p. 6, citing

Wisconsin Department of Corrections v. Schact, 524 U.S.

381, 393 (1998) (Kennedy, J., concurring). In holding that

the Court had waived the 11th Amendment immunity by

virtue of its litigation conduct, Justice Breyer and the

unanimous Court reaffirmed the viability of Clark, Gunter

and Gardner’ on the sounder line of authority with respect

to when litigation conduct waives the 11th Amendment

immunity. (Lapides, slip opinion at p. 8).

* The Lapides decision warrants the grant of Joseph Popovich’s

Petition for Certiorari in Case No. 01-1517 on issue Number 1. As set

forth below, this Court should grant the Petition for Certiorari filed by

Joseph M. Popovich on the issue of whether the State waives its 11th

Amendment immunity by virtue of litigation conduct. The Court should

then remand the matter back to the Sixth Circuit for further proceed-

ings consistent with the Lapides decision.

* Clark v. Barnard, 108 U.S. 436 (1883); Gunter v. Atlantic Coast

Line, 200 U.S. 273 (1906); Gardner v. New Jersey, 329 U.S. 565 (1947).

=. 7

3

Based upon the conclusion of this Court in Lapides, it

is submitted that it would be inappropriate to address the

issue of Congress's authority to abrogate the 11th Amend-

ment immunity under Title II of the Americans with

Disabilities Act until the Sixth Circuit has properly ad-

dressed the issue of whether the Defendants in this case

have waived their immunity by virtue of their failure to

raise the issue until their reply brief on appeal in the

Sixth Circuit. Accordingly, as it relates to this Petition for

Writ of Certiorari, it should be denied.

&

Vv

CONCLUSION

In light of the intervening decision of this Court in

Lapides, and the clear conduct of the Defendants in failing

to raise an 1lth Amendment immunity bar, the Peti-

tioner’s Writ of Certiorari should be denied.

Respectfully submitted,

RICHARD C. HABER, ESQ.

BRIAN D. SULLIVAN, ESQ.

Counsel of Record

REMINGER & REMINGER Co., L.P.A.

1400 Midland Building

101 Prospect Avenue, West

Cleveland, Ohio 44112

(216) 687-1311

Attorneys for Respondent,

Joseph M. Popovich

BRIEF FOR THE

UNITED STATES

Seu (xr? :

A™N ;

‘S :

i

JUL 15 20"

Nos. 01-1503 and 01-1517 |

In the Supreme Court of the United States

COURT OCF COMMON PLEAS OF OHIO, CUYAHOGA

COUNTY, DOMESTIC RELATIONS DIVISION, PETITIONER

i’.

JOSEPH M. POPOVICH

AND THE UNITED STATES OF AMERICA

JOSEPH M. POPOVICH, PETITIONER

U.

COURT OF COMMON PLEAS OF OHIO, CUYAHOGA

COUNTY, DOMESTIC RELATIONS DIVISION AND THE

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES

THEODORE B. OLSON

Solicitor General

Counsel of Re cord

RALPH F. BoyD, JR.

Assistant Attorney General

JESSICA DUNSAY SILVER

SETH M. GALANTER

Attorneys

De partment of Justice

Washington, D.C. 20530-0001

(202) 514-2217

—-—- ~ - --- a - = — ——————— —

QUESTION PRESENTED

Whether Title II of the Americans with Disabilities

Act of 1990, 42 U.S.C. 12131-12165 (1994 & Supp. V

1999), is a proper exercise of Congress’s power under

Section 5 of the Fourteenth Amendment, thereby con-

stituting a valid exercise of congressional power to

abrogate the States’ Eleventh Amendment immunity

from suit by individuals.

(I)

TABLE OF CONTENTS

Page

I cneennmemnnnsennnsnnemnennnmsemmmeemmnmmenemrenisansesteiin i

TTT sfc dee cdcennnitieecnitiniaddadinatinnednnbiibeninbsa 2

IIIIIIIITIID “Sitlsbetlssthiobidesciinsinctinabasdiemesietnnelitinssenhesibenseensuntécasitossennnsoesssinans 2

I al cad lamenlasectaegeenanenmccistionadtee 10

IIIT ici is aah editicingnesitininiiaiasadianetitbbanatbibbinsadecnetddnensinceinsase 25

TABLE OF AUTHORITIES

Cases:

Ace Constr. v. City of St. Lowis, 263 F.3d 831 (8th Cir.

___ EEE Ae eee 16

Alden v. Maine, 527 U.S. 706 (1999) .0.......cccccceccecseescesceeees 19

Alsbrook v. City of Maumelle, 184 F.3d 999 (8th Cir.

1999), cert. dismissed, 529 U.S. 1001 (2000) 200... 7-8

Arizonans for Official English v. Arizona, 520 U.S.

ny CITED cerestiiinsicsicinindiinddenntmesnnestinsnscsonsscbeninuinienntemmastennacesnsnaesen 14

ASARCO Inc. v. Kadish, 490 U.S. 605 (1989) ............000. 16

Ashwander v. Tennessee Valley Auth., 297 U.S.

288 (1936) .......cceceneeeerees passesnscansmsasssssesensssssbesenensssnssessnecsssonsece 15, 23

Becker v. Montgomery, 532 U.S. 757 (2001) ............ccce0e0e 13

Blake v. Papadakos, 953 F.2d 68 (3d Cir. 1992) .............. 19

Board of Trs. of the Univ. of Ala. v. Garrett, 531 U.S.

IED aitetisdiesibccissiiinhltbieseniinantstamanstnnseenentaisicandtinnnecenetnnee 8, 10, 23

Bogle v. Orange County Bd. of County Comm'rs,

BE FG Ge CER Ce BOGE) cccccrccseesncnceconestnrenecensnsccnzsscencnce 13

Brown & Root, Inc. v. Breckenridge, 211 F.3d 194

RII: MINI TIITTEY ahiebbesteichncecctnemsannsneuininntiiccenenotanemeincamennes 17

Calderon v. Ashmus, 523 U.S. 740 (1998) .0..........c.cccccceeees 15

Dalton v. Bureau of Criminal Identification &

Investigation, 530 N.E.2d 35 (Ohio Ct. App. 1987) ........ 20

District of Columbia Court of Appeals v. Feldman,

By TIED ccesinntonnscnsscrnennsspnnnscensentenneiinmninencerneseaeed —— =

(IIT)

Cases—Continued: Page

El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473

(RBI ccsinnesnistsinsonaneinaniniessinsincianscnsaiinesnintdiianitnddisinasenatsiantniimnantminsiniakenn 14

Forrester v. White, 484 U.S. 219 (1988) ...........ccccssseseeseeee 18

4901 Corp. v. Town of Cicero, 220 F.3d 522 (7th Cir

SEIU . cnsinsisennessensessanenetninnnntehontmanienenintisignteicuammmanininamninnantee 16-17

Friends of the Earth, Inc. v. Laidlaw Envil.

Servs. (TOC), Inc., 528 U.S. 167 (2000) .0.........cccccceseeeeees 15

Garcia v. City of Chicago, 24 F.3d 966 (7th Cir. 1994),

cert. denied, 514 U.S. 1003 (1995) ...........ccccccccessceseceereeesees 13

Garcia v. SUNY Health Sciences Ctr., 280 F.3d 98

Ges SE ene biiatieiniinisiiciniennhebinesiibiisieidititieiabiiniiiadicinnin 11

Gentner v. Shulman, 55 F.3d 87 (2d Cir. 1995) ............... 17

Guarino v. Larsen, 11 F.3d 1151 (8d Cir. 1993) ............... 19

Hachamovitch v. DeBuono, 159 F.3d 687 (2d Cir.

RED xcccessnesesniniieniscicitseiseipenienelpiiassnicgiiaiabipesiiadatoabiiininen 17

Hagerty v. Succession of Clement, 749 F.2d 217

(5th Cir. 1984), cert. denied, 474 U.S. 968 (1985) ............ 17

Harvey Invs., Inc. v. Toyota Motor Sales, USA, Inc.,

No. 97-1925, 1998 WL 767080 (6th Cir. Oct. 23, 1998)

(166 F.3d 1213) (Table) .... ich enniidihanheganesineinteininiionasinans 12

Hason v. Medical Bd., 279 F.3d 1167 (9th Cir.

STD ccccctsnasiDDbiniisiipicinaiaenciniiin 10

Hess v. Port Auth. Trans-Hudson Corp., 513 U.S.

30 (1994) 20, 22

Howell v. Supreme Court of Tex., 885 F.2d 308

(5th Cir. 1989), cert. denied, 496 U.S. 936 (1990) ............. 17

Huffman v. Pursue, Ltd., 420 U.S. 592 (1975) ...........00000 16

Johnson v. Smithsonian Inst., 189 F.3d 180

(2d Cir. 1999) 13

Keene Corp. v. Cass, 908 F.2d 293 (th Cir. 1990) ........... 17

Lake Country Estates v. Tahoe Reg’l Planning Agency,

440 U.S. 391 (1979) 20, 22

Landis v. North Amer. Co., 299 U.S. 248 (1936) .............. 17

Lapides v. Board of Regents of the Univ. Sys. of Ga.,

122 S. Ct. 1640 (2002) , 20, 24, 25

Cases—Continued:

Laurino v. Tate, 220 F.3d 1213 (10th Cir. 2000) .............. 13

Lincoln County v. Luning, 133 U.S. 529 (1890) ............... 19

Lockary v. Kayfetz, 917 F.2d 1150 (9th Cir. 19990) .......... 13

Lockett v. Anderson, 230 F.3d 695 (5th Cir. 2000) .......... 13

Maphet v. Heiselman, 469 N.E.2d 92 (Ohio Ct.

Bape: WORD: seviniicsincssinsnisiniinseittiaiciivinicavasasiainibsigiennetiitainiinaiiian 14

Montgomery v. Maryland, 1228S. Ct. 1958 (2002) ........... 25

Mt. Health City Sch. Dist. Bd. of Educ. v. Doyle,

I Rs, 5 genie tar a seve tb hee a eo 20

Mumford v. Basinski, 105 F.3d 264 (6th Cir.),

cert. denied, 522 U.S. 914 (1997) ...........sscssssssssssseeseees 19, 22, 23

Olmstead v. L.C., 527 U.S. 581 (1999) ......ccccccscssscsserssessees 2 .

Parkhill v. Minnesota Mut. Life Ins. Co., 286 F.3d

RR Pe i Be tsitceetacestneessntineepicietinidenesettaitinipittiesininn 13

Randolph v. Rodgers, 253 F.3d 342 (8th Cir. ;

ED sasescciiccscieiisiottestchlenhtstteseininiaihetpeinnneiierieesitateieniiaainiosiiaeiis 10

Regents of the Univ. of Cal. v. Doe, 519 U.S. 425

CED sisieiinhniniitivsitivintineiitbaiininichieiciiaiiclaiiatadaiihancaeiadiciaiianabinit 19-20

Reickenbacker v. Foster, 274 F.3d 974 (5th Cir

SIE) scavsosinesieisinaisvcneninnsdnnistsieanniaitnianadiianbiandesbeatiniitgndianenanninanniiiicie 10

Riley v. St. Luke’s Episcopal Hosp., 196 F.3d 514

Ca I. Se eaintiienidennnidicaaniiainlinditnadnmicnn 15

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1928) ........... 16

Rostker v. Goldberg, 453 U.S. 57 (1981) ......ccssccsssssseeeeees 16

Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574

(1999) ... iaeibaldaniapsniciciaivcienlahiadiiaiaaaaiaabeimatnealanianiens 15

Thompson v. City of Louisville, 362 U.S. 199

CREIDD sniicinnisienisstsincintiniiapaihniniinicaminiiicapipinniiasiiiaitnniitaitinbanaieinans 22

Thompson v. Colorado, 278 F.3d 1020 (10th Cir.

2001), cert. denied, 122 S. Ct. 1960 (2002) 20.0... eeeeees 10, 19

Torres v. Oakland Scavenger Co., 487 U.S. 312

COUT <scinsiaiiesecicictlelaiiicibaceiareeiliatnablichaeedibaeiiins 13

Tymcio v. State, 369 N.E.2d 1063 (Ohio Ct. pm

IIE EY. sccensstssesslsiteiuiipiieneinsbabsiiticcianiainite ‘s 20

United States v. Glover, 242 F.3d 333 (6th Cir.

IIE scesessanchssicghinivsictntiiininsiiiiendnesebinnidaicmmiiian ; - 13

Cases—Continued: Page

Vermont Agency of Natural Res. v. United States

ex rel. Stevens, 529 U.S. 765 (2000) ............cc.ccccessecesseeeseees 15

Ward v. Village of Monroeville, 409 U.S. 57 (1972) ........ 22

Weekly v. Morrow, 204 F.3d 613 (5th Cir. 2000) .............. 17

Whinsenant v. Popovich, No. 74559, 1999 WL

1024205 (Ohio Ct. App. Nov. 10, 1999) .........ccccccseseseseseseses 14

Wisconsin Dep't of Corr. v. Schacht, 524 U.S. 381

(12GB) ...ccccecesesesecsesesssnessnenseessssonnsenssnssesspnenessnssnsnenssesnsassosssseseenee 24

Wright v. Tackett, 39 F.3d 155 (7th Cir. 1994),

cert. denied, 513 U.S. 1150 (1995) ..............cccccccorsssssssssenseees 17

Constitution, statutes and regulations:

U.S. Const:

pS ee 3, 7, 8, 10, 11, 15, 23-24

Amend. XIV:

date FUCCSES CRMIGD ccsaitcascmnscssscescensscsnatetintneesnssetemsnetesins 9,10

Equal Protection Clause ............scssssssssssssessssesseseseees 8, 9, 10

Americans with Disabilities Act of 1990, 42 U.S.C. 12101

CE BOG. ..-crcsccsecsscsssscccsesesesossccsesssessesossoocsosscosossessoescesessoossscoooese 2

GB USD. TED ccttenintintnignesissmnitbtiingininsinnn 2

UE 2

TUS F, BOB. TRG ERE TG ccceccsnsnssscssnumasescsrssssemeanes 2, 10

Title II, 42 U.S.C. 12131-12165 (1994 & Supp. V

SOE accccctmsiccitsiliattnieniiianieianipiatnieaaiiin 2, 3, 8, 9, 10, 11, 19

GB UL. SERRRED sncencemnssinnnannionan 3

gt ee 3

GB EIS, Fe ccseresninctnnersninsnenciesinttianpeiiiiciainiiincan 3

GB UBL. TEED cccmcsnsssnsssnenssntnnnsismniniiemnmnenees 3

Title III, 42 U.S.C. 12181-12189 (1994 & Supp. V........ 2

ee 3

Title V, 42 U.S.C. 12201 et seq.:

GB UE, TEI cerecnsmsicnnsietmansnennnninniininnsien 3

GB USB. BEB ccncnssecsnsssessnsnerssennenecensnssnsnsnentestansecmeneen 3

VII

Statutes, regulations and rules—Continued: Page

Family and Medical Leave Act, 29 U.S.C. 2601

DE BO, cxnnesnsetssnesensnsacensennsennsnrentnnenansannesnnsesennssossnsqunsesassennanensanens 24

ee I ciicsininiciatcninticianeniiseitaaa usin 10

OP ae TE teccientcttienninsinaniicennnaeiictanbaninninneiinanncaniatasasieniensen 16

re SD ccibichichinhsnspstchibitesiniteneiiinicessiiniasaceniihsibeniutibieiatin s

Ohio Rev. Code Ann. (Anderson):

Se IIIT, scinstcicsinsisdnnsisnnsiasintedpentesidaneasietiibesiesbsinaniinstuastnsann 21

CRE Seeernrene nr eve eee anne 21

BD Ae GED cenatetectecciecsennnctssmincintsesiontectbaninnemasneneanmnetsennese 21

I i cleanse 21

§ BOD.GD Gee. BODE) occececccescsccccscscsscssepasccessecccscssnssescecsssenassse 22

Se CED ddeiicstininicintsinesiienanninnsnentininnaticninninienstniinaneution 21

I CRED ccccntcccecsnssccsssansscccsnssenscssnssesscnssnsesnsanstncnnnsensens 20

pe RE 6 Be fe 22

I case diaineiacaanieelalnileiniadi 20

SIAR BOL A) Sie. BIDED ccecascccscssecsansnsesessenansessenessniensentin 21

See CIO crtesesccnnsecenscsenssnesentnsisscnsennsenecsnnsensneans 22

oS) a 21

28 C.F.R.:

FUNG IIE soctieteibbitesdbciesi iemsaiethteiielpnipatiiniatinananneibiansauninbentibpatanannies 3

OA TDG ccectnnestnscciecenesnnentinaccenssenesssnnenpenmnnesrneenmenenns 3

Bectiom BE.LGB 1) .n.cacncncescccsescecsscssscsccscssescscenscssnscasessseaes 3,18

CEO TRIG cccceencnesesscensnsessczsnsensesrnssssssnssnessnvenssnstserennsenen 4

Fed. R. App. P.:

ND ciceninertensenenssetesntnsninensiansnnsanancnennneedinememneseimnmneinet 13

ee SAD cierescctcictesencenenncscsnsensssimnmnsecnissnennennsenmaneiannasesin 12, 13

Be ED scictcenssisatnsnentectennrstintniiestsieinstasniinsnassitimenion 12

BE AE eee eee Ne eT nee ae 12

6th Cir. R.:

ID ccnstcttnnctecesnreenscnsnctiscnstastnattnincsensesctsienannnattensainmiinen 12

SIN GEIEILD ccccsirensicstinnieennennntesniiinisennninatandsiininntentnsitnaiamansibanepianiie 12

VIII

Miscellaneous: Page

Ohio Op. Att’y Gen.:

No. 85-014, 1985 WL 204483 (Apr. 9, 1985) .........::sseseseees 22

No. 88-055, 1988 WL 428848 (Aug. 25, 1985) 2.0... 22

No. 89-029, 1989 WL 455369 (May 15, 1985) .............c0 21

: Jn the Supreme Court of the Gnited States

No. 01-1503

COURT OF COMMON PLEAS OF OHIO, CUYAHOGA

COUNTY, DOMESTIC RELATIONS DIVISION, PETITIONER

Vv.

JOSEPH M. POPOVICH

AND THE UNITED STATES OF AMERICA

No. 01-1517

JOSEPH M. POPOVICH, PETITIONER

VU.

COURT OF COMMON PLEAS OF OHIO, CUYAHOGA

COUNTY, DOMESTIC RELATIONS DIVISION AND THE

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The en banc opinion of the court of appeals (No. 01-

1503 Pet. App. Al-A60) is reported at 276 F.3d 808.’

The panel opinion (Pet. App. A63-A102) is reported at

1 Throughout this brief, our references to the petition appendix

will be to the appendix filed in Cuyahoga County Court of Com-

mon Pleas v. Popovich, No. 01-1503.

(1)

2

227 F.3d 627. The opinion of the district court (Pet.

App. A105-A131) is unreported.

JURISDICTION

The court of appeals entered its judgment on January

10, 2002. The petition for a writ of certiorari in No.

01-1503 was filed on April 8, 2002. The petition for a

writ of certiorari in No. 01-1517 was filed on April 10,

2002. This Court’s jurisdiction is invoked under 28

U.S.C. 1254(1).

STATEMENT

1. The Americans with Disabilities Act of 1990

(Disabilities Act), 42 U.S.C. 12101 et seq., is a “compre-

hensive national mandate for the elimination of discri-

mination against individuals with disabilities.” 42

U.S.C. 12101(b)(1). The Disabilities Act targets three

particular areas of discrimination against persons with

disabilities. Title I, 42 U.S.C. 12111-12117, addresses

discrimination by employers affecting interstate com-

merce; Title II, 42 U.S.C. 12131-12165 (1994 & Supp. V

1999), addresses discrimination by governmental en-

tities; and Title III, 42 U.S.C. 12181-12189 (1994 &

Supp. V 1999), addresses discrimination in public ac-

commodations operated by private entities. In passing

the Disabilities Act, Congress “invoke[d] the sweep of

congressional authority, including the power to enforce

the fourteenth amendment and to regulate commerce,

in order to address the major areas of discrimination

faced day-to-day by people with disabilities.” 42 U.S.C.

12101(b)(4).

By its terms, the Disabilities Act’s prohibitions on

discrimination are enforceable against public entities

through private suits. See, e.g., 42 U.S.C. 12133; see

also Olmstead v. L.C., 527 U.S. 581, 590 (1999). In the

Disabilities Act, Congress expressly abrogated the

3

States’ Eleventh Amendment immunity to private suits

in federal court. 42 U.S.C. 12202 (a “State shall not be

immune under the eleventh amendment to the Consti-

tution of the United States from an action in Federal or

State court of competent jurisdiction for a violation of

this chapter”).

This case involves a suit under Title II of the Dis-

abilities Act, which provides that “no qualified in-

dividual with a disability shall, by reason of such dis-

ability, be excluded from participation in or be denied

the benefits of the services, programs, or activities of a

public entity, or be subjected to discrimination by any

such entity.” 42 U.S.C. 12132. A “public entity” is ex-

pressly defined to include “any State or local gov-

ernment” and “any department, agency, special purpose

district, or other instrumentality of a State or States or

local government.” 42 U.S.C. 12131(1)(A) and (B). The

case also implicates the Disabilities Act’s anti-retalia-

tion provision, which prohibits discrimination against

those who file complaints alleging violations of the Act

or otherwise exercise the rights accorded by the law.

42 U.S.C. 12203.

Congress instructed the Attorney General to issue

regulations implementing the provisions of Title II.

See 42 U.S.C. 12134(a); see generally 28 C.F.R. Pt. 35.

One such regulation provides that “[a] public entity

shall furnish appropriate auxiliary aids and services

where necessary to afford an individual with a disability

an equal opportunity to participate in, and enjoy the

benefits of, a service, program, or activity conducted by

a public entity.” 28 C.F.R. 35.160(b)(1); see also 28

C.F.R. 35.104 (defining “auxiliary aids and services” to

include “(qJualified interpreters, notetakers, transcrip-

tion services, written materials, telephone handset

amplifiers, assistive listening devices, assistive listen-

4

ing systems, telephones compatible with hearing aids,

closed caption decoders, open and closed captioning,

telecommunications devices for deaf persons (TDD’s),

videotext displays, or other effective methods of

making aurally delivered materials available to

individuals with hearing impairments”). The public

entity need not “take any action [under the auxiliary

aids regulation] that it can demonstrate would result in

a fundamental alteration in the nature of a service,

program, or activity or in undue financial and

administrative burdens.” 28 C.F.R. 35.164.

2. Following divorce proceedings, petitioner Joseph

Popovich was awarded primary custody of his minor

daughter. In August 1992, on an ex parte petition from

Popovich’s ex-wife, petitioner Domestic Relations

Division of the Cuyahoga County Court of Common

Pleas (Cuyahoga County Court) issued a temporary

order removing Popovich’s then eleven-year-old daugh-

ter from his home and enjoining Popovich from having

any contact with her at all. Pet. App. A69, A109-110;

1C.A. App. 450.

Popovich has a hearing impairment that makes it

difficult for him to understand speech. In hearings

during September and October 1992 to adjudicate the

need for and continuation of the temporary ex parte

order, the Cuyahoga County Court provided Popovich

with a headset that amplified the speech of partici-

pants in the court proceedings. On October 23, 1992,

Popovich informed the Cuyahoga County Court that

the use of the headset had caused an ear infection and

that it no longer provided effective amplification for his

hearing impairment. The Cuyahoga County Court con-

tinued the proceedings until December 1992. On

December 1, 1992, Popovich advised that an alternative

method of communication would be necessary, in light

5

of his deteriorating hearing condition, and requested

that the Cuyahoga County Court provide him with

some type of instantaneous transcription process. The

Cuyahoga County Court told Popovich that he must

choose between proceeding with the custody hearing on

the merits without an alternative form of hearing

assistance, or continuing the ex parte order separating

him from his daughter and scheduling a separate hear-

ing to determine what accommodations needed to be

made. Because Popovich was unable to hear, and thus

to participate, in the custody proceedings, he elected

the separate hearing. That hearing was scheduled for

February 1993, but was never held. Pet. App. A109,

A111-A113; 1 C.A. App. 299, 544.

On December 2, 1992, the United States Depart-

ment of Justice notified Cuyahoga County Court that

the Department had received a complaint from

Popovich that the court was violating the Disabilities

Act and that the Department was commencing an

investigation. The Cuyahoga County Court then can-

celled the custody hearing and refused to conduct any

further proceedings pending the completion of the

Justice Department’s investigation, despite repeated

requests by the Justice Department that proceedings

not be delayed. In June 19938, over Popovich’s objection

and without a hearing, the Cuyahoga County Court

extended indefinitely the ex parte order enjoining

Popovich frem having any contact with his daughter.

Popovich appealed the order, but the state appellate

courts dismissed his appeal, returning the case to the

Cuyahoga County Court in February 1994. Pet. App.

A113, A115, A128-A129; 1 C.A. App. 303; 3/31/98 Tr.

293, 302.

In October 1994, after a meeting with Popovich’s

attorney, the Cuyahoga County Court stated that it

6

would provide Popovich with an instantaneous tran-

scription process during the custody hearing. The

Cuyahoga County Court also modified its two-year-old

ex parte order to permit Popovich to visit his daughter,

with the permission and supervision of the guard’an ad

litem. No further custody proceedings were held for

three years, however. In July 1995, the Cuyahoga

County Court authorized Popovich’s daughter to move

out-of-state to live with her mother. Pet: App. A115-

A117; 4/1/98 Tr. 338-339. When, in 1997, the Cuyahoga

County Court finally resumed the custody hearing,

Popovich regained full custody of his daughter. Pet.

App. A117.

3. Popovich filed suit in March 1995 against the

Cuyahoga County Court and the County of Cuyahoga

in federal district court alleging violations of the non-

discrimination and anti-retaliation provisions of the

Disabilities Act.” The complaint sought an injunction

ordering defendants both to provide an appropriate

accommodation and to rule on Popovich’s pending mo-

tion to terminate the ex parte injunction restricting his

contact with his daughter. 1 C.A. App. 29. The com-

plaint was amended six months later to add a claim for

compensatory damages. /d. at 40-41.

On April 13, 1998, the jury returned a verdict in favor

of Popovich. In special interrogatories, the jury found

that the Cuyahoga County Court and Cuyahoga County

had unlawfully discriminated and retaliated against

Popovich. Pet. App. A135-A136; 4/6/98 Tr. 801-802. The

jury awarded $400,000 in compensatory damages. Pet.

App. A136. At no point before the jury’s verdict did the

2 Popovich also sued a judge in his official capacity, but that

defendant was dismissed from the case before trial. 4/2/98 Tr. 614.

7

Cuyahoga County Court invoke Eleventh Amendment

immunity.

On April 23, 1998, the Cuyahoga County Court and

Cuyahoga County filed a motion for a new trial, judg-

ment as a matter of law, and remittitur. Pet. App.

A105, A128, A135-A136. That motion did not assert

Eleventh Amendment immunity. On July 28, 1998,

while that motion was still pending, the district court

issued an injunction ordering the Cuyahoga County -

Court and Cuyahoga County to provide Popovich with

real-time captioning for any proceeding that required

his active participation and prohibiting further acts of

retaliation. Jd. at A182-A134. Petitioner and Cuyahoga

County filed a notice of appeal “from the Judgment

Entry of July 28, 1998 awarding injunctive relief.”

1C.A. App. 46.

' The district court subsequently issued an order

granting judgment as a matter of law in favor of

Cuyahoga County, but denying Cuyahoga County

Court’s requests for relief. On November 19, 1998, the

court entered an amended damages judgment, solely

against Cuyahoga County Court. Pet. App. A103.

Cuyahoga County Court did not file a notice of appeal

from either the original or the amended judgments

awarding damages.

4, On appeal, Cuyahoga County Court did not raise a

claim of Eleventh Amendment immunity in its opening

brief. In its reply brief, the Cuyahoga County Court

included a “cryptic,” Pet. App. A71, and “abbreviated,

afterthought reference to the Eleventh Amendment

immunity,” id. at A838. See also id. at A22 n.8.° The

3 In the midst of a discussion of qualified immunity, the Cuya-

hoga County Court referred to the Eighth Circuit’s decision in

Alsbrook v. City of Maumelle, 184 F.3d 999 (1999), cert. dismissed,

8

court of appeals then directed the parties to submit

supplemental letter briefs addressing the Eleventh

Amendment issue. /d. at A33. The court, however,

denied without explanation the United States’ motion

to intervene, pursuant to 28 U.S.C. 2403(a), to defend

the constitutionality of the law. Pet. App. A22 n.8.

The court of appeals reversed and remanded. Pet. -

App. A63-A102. It concluded that, despite Cuyahoga

County Court’s failure to invoke Eleventh Amendment

immunity in a timely manner, the court could, in its dis-

cretion, address the constitutionality of an Act of

Congress. The court then concluded that Title II of the

Disabilities Act was not a “congruent and proportional”

means of enforcing the Equal Protection Clause be-

cause it prohibits “a broad swath” of constitutional

conduct, id. at A88, and because Congress’s findings of

discrimination against persons with disabilities were

not supported by “evidence in the legislative history,”

id. at A96.

5. The en banc court of appeals vacated and re-

manded. Pet. App. Al-A60.4 The court acknowledged

that this Court, in Board of Trustees of the University

of Alabama v. Garrett, 531 U.S. 356 (2001), had specifi-

cally reserved the question of whether the abrogation

of Eleventh Amendment immunity for Title II was

529 U.S. 1001 (2000), and invited the court of appeals to “declare

-Title II of the [Disabilities Act] unconstitutional as applied to the

states.” C.A. Reply ir. 34. Immediately thereafter, Cuyahoga

County Court advised the court of appeals that resolution of that

“federal constitutional issue * * * can be avoided” “in light of the

record in this case.” bid.

4 The en banc court of appeals permitted the United States to

intervene, pursuant to 28 U.S.C. 2403(a), to defend the consti-

tutionality of Congress’s abrogation of the States’ Eleventh

Amendment immunity. Pet. App. A23 n.8.

9

valid. Pet. App. Al0-A1l1. The court concluded that the

reasoning of Garrett applied equally to the question

whether Title II’s abrogation could be sustained as

appropriate legislation to enforce the Equal Protection

Clause. Jd. at A6-A9.

The court held, however, that “as applied” to

Popovich’s claim that he had been denied an accom-

modation needed to participate meaningfully in hear-

ings involving the custody of his daughter, Congress’s

abrogation could be sustained as appropriate legislation

to enforce the Due Process Clause. Pet. App. Al1-A17.

Because the jury instruction had been “based on equal

protection principles,” the court vacated the jury award

and remanded for a trial on a theory of “unreasonable

exclusion from judicial proceedings based on disability

in a due process-type claim.” Jd. at A19.

Judge Moore, writing for herself and four other

judges, concurred in part and in the judgment. Pet.

App. A23-A31. While agreeing with the court’s Due

Process Clause holding, id. at A23, she also would have

sustained Title II’s abrogation as appropriate legis-

lation to enforce the Equal Protection Clause. In

her view, Congress’s “express findings” relating to

“a pattern of unconstitutional discrimination by the

states” were supported by an “extensive study and

record” that “the states have discriminated against the

disabled in many aspects of governmental operations

and that they may continue to do so.” Jd. at A26-A27,

A29, A30. This “extensive record of constitutional

violations in the states’ provision of public services to

persons with disabilities,” id. at A29, demonstrated

—S eee

10

that Title II’s obligations were a “congruent and pro-

portional” remedy, id. at A29-A31.° 3

Judge Ryan, writing for himself and five other

judges, concurred in part and dissented in part, on the

ground that Title II is not appropriate legislation to

enforce either the Equal Protection or Due Process

Clause. Pet. App. A31-A53.

ARGUMENT

Petitioner Cuyahoga County Court and petitioner

Popovich are correct (No. 01-1503 Pet. 7-20; No. 01-1517

Pet. 15-19) that the question of Congress’s power to

abrogate the States’ Eleventh Amendment immunity

for claims under Title II of the Disabilities Act is an

important question that may merit review by this

Court at the appropriate time and in the appropriate

ease.° This, however, is not that case. To the contrary,

5 Judge Gilman filed a partial dissent in which he “fully con-

cur[red] in the judgment of the court that upholds the constitu-

tionality of Title II of the Americans with Disabilities Act,” Pet.

App. A54, but in which he also argued that Judge Merritt’s

participation in the en banc proceedings violated 28 U.S.C. 46(c).

Pet. App. A53-A60.

6 Since this Court’s decision in Board of Trustees of the Uni-

versity of Alabama v. Garrett, 531 U.S. 356 (2001), which invali-

dated the abrogation of Eleventh Amendment immunity for Title I

of the Disabilities Act, the courts of appeals addressing the con-

stitutionality of Congress’s abrogation of Eleventh Amendment

immunity for Title II of the Disabilities Act have reached differing

results with varying degrees of analysis. The Fifth, Eighth, and

Tenth Circuits have held that the abrogation for Title II suits can-

not be sustained as valid Section 5 legislation. See Reickenbacker

v. Foster, 274 F.3d 974 (5th Cir. 2001); Randolph v. Rodgers, 253

F.3d 342, 345 n.4 (8th Cir. 2001); Thompson v. Colorado, 278 F.3d

1020 (10th Cir. 2001), cert. denied, 122 S. Ct. 1960 (2002). The

Ninth Circuit has upheld the abrogation. See Hason v. Medical

Bd., 279 F.3d 1167 (2002). The Second Circuit has held that the

11

there are significant jurisdictional, statutory, and pru-

dential barriers to granting plenary review here.

1. This case appears to be moot and, indeed, likely

was moot at the time both the original court of appeals

panel and the en banc court issued their decisions.

a. The Claim For Money Damages: The Eleventh

Amendment question presented by petitioner Cuya-

hoga County Court to this Court is expressly confined

to challenging the constitutionality of the Disabilities

Act’s abrogation of immunity for awards of money

damages. The question presented does not assert a

general immunity to suit or an immunity to injunctive

relief in particular. See No. 01-1503 Pet. i (questioning

Congress’s authority to abrogate “Eleventh ‘Amend-

ment immunity from private damage claims”).’ Cuya-

hoga County Court, however, never filed a notice of

appeal from the district court’s damages judgment

when it took its appeal to the Sixth Circuit. The

propriety of the abrogation of immunity for money

damages thus was never properly presented to the

court of appeals and, consequently, has not been

preserved for this Court’s review.

abrogation can be sustained in Title II cases if the government’s

action was undertaken with “discriminatory animus or ill will to-

wards the disabled.” Garcia v. SUNY Health Sciences Ctr., 280

F.3d 98, 111 (2001).

7 See also No. 01-1503 Pet. 7 (“private damage suits”), 8 (“pri-

vate damage suits”), 9 (“private claims for damages”), 14 (“damage

suits”), 16 (“money damages”), 20 (“private money damage

claims”); No. 01-1517 Pet. 4 (in describing remedy awarded, only

mentioning damages), 8 (same), 15 (noting that courts are divided

on whether “states may be sued for money damages”). Contrast

No. 01-1503 Pet. 19 (quoting question presented in Alsbrook v.

Arkansas, No. 99-423, which asked whether Congress had power

to abrogate “immunity from suit by individuals”).

12

The only notice of appeal ever filed by Cuyahoga

County Court exclusively identified the “Judgment

Entry of July 28, 1998 awarding injunctive relief’ as the

order that was being appealed. 1 C.A. App. 46. Indeed,

the notice of appeal includes a footnote reference

explaining that the “Judgment Entry of April 13, 1998”

—the jury’s award of damages—“remains pending as

the Court has not yet ruled on Defendants’ Motion For

A New Trial and Judgment As A Matter Of Law.” /d.

at 46 n.1. Cuyahoga County Court never subsequently

filed a notice of appeal from either the original April 13,

1998, judgment awarding damages, or from the district

court’s later denial of its motion for a new trial or judg-

ment as a matter of law, as embodied in the amended

order awarding damages of November 19, 1998.°

Federal Rule of Appellate Procedure 3(c)(1)(B) pro-

vides that a notice of appeal must “designate the judg-

8 Cuyahoga County Court’s first mention of an appeal of the

damages judgment appears in its Civil Appeal Conference

Statement, see 6th Cir. R. 33(b)(1), which was signed and dated on

December 22, 1998—32 days after entry of the amended judgment.

The Civil Appeal Conference Statement is not recorded on the

Sixth Circuit’s docket sheet. We have been advised by the Office

of the Clerk for the Sixth Circuit that Cuyahoga County Court

faxed that Statement to the court of appeals on December 22, 1998.

Thus, even if that Statement were viewed as an attempt to amend

the notice of appeal, it arrived too late to do so. See Fed. R. App.

P. 4(a)(4)(B)(ii) and (d). In any event, an unpublished decision of

the Sixth Circuit indicates that the court will not treat the Civil

Appeal Conference Statement as a notice of appeal. Harvey Invs.,

Ine. v. Toyota Motor Sales, U.S.A., Inc., No. 97-1925, 1998 WL

767080, at *6 n.4 (6th Cir. Oct. 23, 1998) (166 F.3d 1213 (Table)).

See 6th Cir. R. 28(g) (an unpublished opinion may be cited if the

decision has “precedential value in relation to a material issue in a

case,and * * * there is no published opinion that would serve as

well”).

13

ment, order, or part thereof being appealed.” Compli-

ance with Rule 3(c) is a “jurisdictional prerequisite” to

an appeal. Torres v. Oakland Scavenger Co., 487 U.S.

312, 318 (1988); see also Becker v. Montgomery, 532

U.S. 757, 765-766 (2001) (Rule 3(c)(1)’s “specifications”

of what a notice of appeal must contain are “juris-

dictional provisions”).

Furthermore, when a notice of appeal designates a

particular interlocutory judgment or order, a court of

appeals lacks jurisdiction over any other judgment or

order. See, e.g., Parkhill v. Minnesota Mut. Life Ins.

Co., 286 F.3d 1051, 1058 (8th Cir. 2002); United States v.

Glover, 242 F.3d 333, 334-337 (6th Cir. 2001); Lockett v.

Anderson, 230 F.3d 695, 699-701 (5th Cir. 2000);

Laurino v. Tate, 220 F.3d 1213, 1219 (10th Cir. 2000);

Johnson v. Smithsonian Inst., 189 F.3d 180, 185 n.2 (2d

Cir. 1999); Bogle v. Orange County Bd. of County

Comm'rs, 162 F.3d 653, 661 (11th Cir. 1998); Garcia v.

City of Chicago, 24 F.3d 966, 969 n.4 (7th Cir. 1994),

cert. denied, 514 U.S. 1003 (1995); Lockary v. Kayfetz,

917 F.2d 1150, 1157 (9th Cir. 1990). Thus, Cuyahoga

County Court’s notice of appeal from the award grant-

ing injunctive relief did not give the court of appeals

jurisdiction over the separately entered damages

judgment.

While Popovich did file a timely notice of appeal from

the amended damages order, his appeal was limited to

the dismissal of the County from the case and the denial

of pre-judgment interest. He subsequently withdrew

the claim against the County before decision, and he

abandoned the pre-judgment interest claim by failing to

brief it. Pet. App. A70. In any event, it is a “firmly en-

trenched rule” that, “[aJbsent a cross-appeal” from the

damages judgment, Cuyahoga County Court could not

“attack the [money judgment] decree with a view either

14

to enlarging [its] own rights thereunder or of lessening

the rights of [its] adversary.” El Paso Natural Gas Co.

v. Neztsosie, 526 U.S. 473, 479-480 (1999). Popovich’s

short-lived appeal thus did not afford the court of

appeals jurisdiction over the damages judgment either.

In short, because Cuyahoga County Court failed to

appeal or cross-appeal from the judgment awarding

money damages, the court of appeals lacked jurisdiction

over that judgment, and the constitutionality of Con-

gress’s abrogation of Eleventh Amendment immunity

for damages is not properly preserved for this Court’s

review.

b. The Claim For Injunctive Relief: Cuyahoga

County Court’s notice of appeal did give the court of

appeals jurisdiction to address its challenge to the judg-

ment ordering injunctive relief. However, the common

pleas proceedings to which Popovich was a party were

terminated on April 24, 1998, with Popovich retaining

custody of his daughter and all outstanding injunctions

being vacated. That order was affirmed by the state

court of appeals in November 1999. See Whinsenant v.

Popovich, No. 74559, 1999 WL 1024205 (Ohio Ct. App.

Nov. 10, 1999). Therefore, the claim for injunctive relief

became moot while the appeal was pending in the court

of appeals. See Arizonans for Official English v.

Arizona, 520 U.S. 43, 68, 72 (1997). Furthermore,

Popovich’s daughter turned 18 on December 19, 1998

(1 C.A. App. 262), divesting the court of common pleas

of jurisdiction over any current or future custodial dis-

pute involving her. See Maphet v. Heiselman, 469

N.E.2d 92, 93-94 (Ohio Ct. App. 1984). Because

Popovich’s daughter—the youngest of his children, see

1 C.A. App. 450—has now reached the age of majority,

the conflict between these parties is incapable of

repetition. It does not appear that either of the parties

15

to this litigation brought those intervening develop-

ments to the attention of either the original panel or the

en banc court.

The mootness of the case would appear to preclude

this Court from addressing the Eleventh Amendment

question. See Calderon v. Ashmus, 523 U.S. 740, 745 &

n.2 (1998) (Court “must first address” whether there

is a “case or controversy” before reaching Eleventh

Amendment issue, because the Eleventh Amendment

“is not coextensive with the limitations on judicial

power in Article III.”); see also Vermont Agency of

Natural Res. v. United States ex rel. Stevens, 529 U.S.

765, 771, 778-779 (2000) (standing and cause of action

questions resolved before Eleventh Amendment);

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.

(TOC), Inc., 528 U.S. 167, 192 (2000) (courts have “no[]

license * * * to retain jurisdiction over cases in which

one or both of the parties plainly lack a continuing

interest”); Riley v. St. Luke’s Episcopal Hosp., 196 F.3d

514, 523 (5th Cir. 1999) (standing issue poses “a more

‘basic’ jurisdictional requirement” and thus must be

addressed in advance of an Eleventh Amendment

claim). While, in other circumstances, this Court has

held that courts may “choose among threshold grounds

for denying audience to a case on the merits,” Ruhrgas

AG v. Marathon Oil Co., 526 U.S. 574, 585 (1999),

well-established principles of constitutional avoidance

counsel against unnecessarily addressing the consti-

tutionality of Acts of Congress in cases where alterna-

tive means of disposing of the case are available at the

threshold. See generally Ashwander v. Tennessee

Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J.,

concurring). Moreover, because the mootness of the

case destroys any jurisdictional foundation for the court

of appeals’ partial invalidation of an Act of Congress as

16

unconstitutional—which is “the gravest and most deli-

cate duty that [a] Court is called upon to perform,”

Rostker v. Goldberg, 453 U.S. 57, 64 (1981)—the court of

appeals’ decision should be vacated.

2. This case also contains a potential statutory bar to

federal jurisdiction that is distinct from the Eleventh

Amendment question presented and that could prevent

resolution of that question in this case. Under the

Rooker-Feldman doctrine (see District of Columbia

Court of Appeals v. Feldman, 460 U.S. 462 (1983);

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923)),

federal district courts lack subject-matter jurisdiction

over any action that “in essence, would be an attempt to

obtain direct review of the [state court’s judicial]

decision in the lower federal courts,” ASARCO Inc. v.

Kadish, 490 U.S. 605, 622-623 (1989). In addition to its

statutory basis (28 U.S.C. 1257), the Rooker-Feldman

doctrine is rooted in notions of comity and federalism

that presume that state courts are willing and able to

apply federal law and respect federal rights as well as

their federal court counterparts. See Feldman, 460

U.S. at 484 n.16; see also Huffman v. Pursue, Ltd., 420

U.S. 592, 610-611 (1975).

Cuyahoga County Court raised Rooker-Feldman

before the district court, which rejected the argument.

Pet. App. A125-A128. Cuyahoga County Court re-

newed its argument in its initial brief to the court of

appeals, C.A. Br. 19-21, but neither the panel nor the en

bane court addressed it. Neither Cuyahoga County

Court nor Popovich mentions the issue in its petition.

The Rooker-Feldman doctrine, however, is a limitation

on the courts’ subject-matter jurisdiction that cannot be

waived and must be addressed by this Court even if it

is not raised by the other parties. See Feldman, 460

U.S. at 486-487; Ace Constr. v. City of St. Louis, 263

17

F.3d 831, 833 (8th Cir. 2001); 4901 Corp. v. Town of

Cicero, 220 F.3d 522, 527 (7th Cir. 2000); Weekly v.

Morrow, 204 F.3d 613, 615 (5th Cir. 2000); Hacha-

movitch v. DeBuono, 159 F.3d 687, 696 n.2 (2d Cir.

1998).

Popovich’s claims arise out of the actions of a common

pleas court presiding over a judicial proceeding in

which he was a party. Popovich’s retaliation claim,

which he describes (No. 01-1517 Pet. 3) as based on a

“de facto stay of proceedings” in response to his filing of

a complaint with the Justice Department, appears to

implicate the Rooker-Feldman doctrine. “{T]he power

to stay proceedings is incidental to the power inherent

in every court to control the disposition of the causes on

its docket with economy of time and effort for itself, for

counsel, and for litigants.” Landis v. North American

Co., 299 U.S. 248, 254 (1936); see also Hagerty v. Suc-

cession of Clement, 749 F.2d 217, 219-220 (5th Cir. 1984)

(Rooker-Feldman bars federal court from hearing

challenge to state court’s decision to deny continuance),

cert. denied, 474 U.S. 968 (1985).°

® The courts of appeals are in accord that district courts are

barred by Rooker-Feldman from hearing challenges that various

interlocutory procedural orders by state courts violated a party’s

federal constitutional or statutory rights. See, e.g., Brown & Root,

Inc. v. Breckenridge, 211 F.3d 194 (4th Cir. 2000) (state court’s re-

fusal to stay proceeding and order arbitration); Gentner v. Shul-

man, 55 F.3d 87, 89 (2d Cir. 1995) (state court’s disqualification

of counsel); Wright v. Tackett, 39 F.3d 155, 157-158 (7th Cir. 1994)

(state court’s denial of request to intervene in foreclosure actions),

cert. denied, 513 U.S. 1150 (1995); Keene Corp. v. Cass, 908 F.2d

293, 297 (8th Cir. 1990) (state court’s discovery order); Howell v.

Supreme Court of Tex., 885 F.2d 308, 311 (5th Cir. 1989) (state

judge’s refusal to recuse), cert. denied, 496 U.S. 986 (1990).

18

Whether Popovich’s discrimination claim is likewise

barred is a more difficult question. In order for Rooker-

Feldman to apply, the challenged action must be

“judicial in nature,” Feldman, 460 U.S. at 476. An “ad-

ministrative” decision does not trigger the doctrine. Id.

at 479. On the one hand, the decision on how to accom-

modate Popovich’s disability was made by a judge and

ultimately embodied in a court order. Pet. App. A112.

On the other hand, the decision on how to comply with

the Disabilities Act’s requirement to “furnish appropri-

ate auxiliary aids and services where necessary to

- afford an individual with a disability an equal opportu-

nity to participate in” court proceedings, 28 C.F.R.

35.160(b)(1), was not inherently judicial. Cf. Forrester

v. White, 484 U.S. 219, 229 (1988) (judge not entitled to

judicial immunity when acting in administrative capa-

city, e.g., “supervising court employees and overseeing

the efficient operation of a court”); 4/1/98 Tr. 314, 316,

327 (testimony of court administrator that his general

duties included addressing complaints under the Dis-

abilities Act under the supervision of the administra-

tive judge); 4/2/98 Tr. 421-422 (testimony of judge that

he consulted with court administrator and administra-

tive judge before deciding how to accommodate

Popovich). In fact, the same obligation applies to all

public entities. Cf. Forrester, 484 U.S. at 228 (noting

that judicial immunity is less appropriate when the

same tasks are performed by other branches of govern-

ment).

There is little relevant authority addressing the

distinction between judicial and administrative acts for

purposes of triggering the Rooker-Feldman doctrine.”

10 Outside the context of regulating membership in the bar (the

situation at issue in Rooker and Feldman), we are aware of only

19

Because of the difficulty and relative novelty of that

question, the United States takes no position on the

ultimate question of whether Rooker-Feldman bars

Popovich’s claims. But the existence of that potential

non-constitutional and jurisdictional obstacle to this

Court’s review of the questions presented counsels

strongly against granting these petitions. Indeed, this

Court recently denied certiorari in another case that

presented a similar challenge to Title II’s abrogation of

Eleventh Amendment immunity, but that also suffered

from jurisdictional and prudential barriers to review.

See Thompson v. Colorado, 122 8S. Ct. 1960 (2002).

3. A logical antecedent to adjudicating the consti-

tutional questions presented for review is determining

whether the Cuyahoga County Court is an “arm of the

state” entitled to Eleventh Amendment immunity. The

Sixth Circuit concluded that the Cuyahoga County

Court is an arm of the state, see Pet App. A75 (citing

Mumford v. Basinski, 105 F.3d 264, cert. denied, 522

U.S. 914 (1997)). This Court’s precedents strongly sug-

gest otherwise.

Eleventh Amendment immunity does not extend to

suits prosecuted against a municipal corporation or

other governmental entity which is not an “arm of

the State.” See Alden v. Maine, 527 U.S. 706, 756

(1999); Lincoln County v. Luning, 133 U.S. 529 (1890).

Whether Cuyahoga County Court is an arm of the state

is a question of federal law, that this Court reviews de

two appellate decisions (coming out of the same circuit) that have

analyzed the line between administrative and judicial actions, for

purposes of Rooker-Feldman. See Guarino v. Larsen, 11 F.3d

1151, 1157-1160 (3d Cir. 1993) (civil rights challenge to revocation

of judge’s senior status); Blake v. Papadakos, 953 F.2d 68, 72-73

(3d Cir. 1992) (suit to enjoin state court from exercising admini-

strative powers of a judge’s office).

20

novo. See Regents of the Univ. of Cal. v. Doe, 519 US.

425, 429 n.5 (1997); see also Lapides v. Board of Regents

of the Univ. Sys. of Ga., 122 S. Ct. 1640, 1645 (2002).

Relevant factors to consider include the court’s descrip-

tion under state law, the provenance of the court’s

officials, the functions of the court, the extent of control

of the court’s actions by the State, and the State’s

financial responsibility for the court or for any

judgment entered. See Doe, 519 U.S. at 430; Hess v.

Port Auth. Trans-Hudson Corp., 513 U.S. 30, 44-45

(1994) (discussing Lake Country Estates, Inc. v. Tahoe

Reg’l Planning Agency, 440 U.S. 391, 401-402 (1979)).

Those factors strongly indicate that the Cuyahoga

County Court is not an arm of the state. First, under

Ohio law, a court of common pleas is defined as a

“political subdivision” for purposes of tort liability. See

Dalton v. Bureau of Criminal Identification & Investi-

gation, 530 N.E.2d 35 (Ohio Ct. App. 1987) (interpreting

Ohio Rev. Code Ann. § 2743.01 (Anderson 2000));

Tymcio v. State, 369 N.E.2d 1063 (Ohio Ct. App. 1977)

(same); see also Mt. Healthy City Sch. Dist. Bd. of

Educ. v. Doyle, 429 U.S. 274, 280 (1977) (relying on the

same Qhio statute in concluding that Ohio school

districts are not arms of the state).

Second, the provenance of the courts’ officers also

evidences a local, rather than state-based, entity. The

judges of the court of common pleas are elected by

county electors. See Ohio Rev. Code Ann. § 2301.01

(Anderson 2001). They must also be residents of the

county in which they are elected. See 2bid.

Third, and most significantly, the money judgment

entered in this case would not be enforceable against

the State treasury. That factor “is of considerable

importance” to the arm-of-the-state inquiry. Doe, 519

U.S. at 430; see also Hess, 513 U.S. at 47, 51. Under

21

Ohio law, the State is under no obligation to pay the

judgment entered against the Cuyahoga County Court.

When judgments are awarded against a “political

subdivision”—a state law term interpreted to include

courts of common pleas—

[s]uch judgments shall be paid from funds of the

political subdivision that have been appropriated for

that purpose, but, if sufficient funds are not cur-

rently appropriated for the payment of judgments,

the fiscal officer of a political subdivision shall

certify the amount of any unpaid judgments to the

taxing authority of the political subdivision for

inclusion in the next succeeding budget.

Ohio Rev. Code Ann. § 2744.06(A) (Anderson Supp.

- 2001). The court of common pleas does not have the

authority to tax. It is the county that is authorized to

levy a special property tax to pay for the court’s ex-

penses. Jd. § 5707.02 (Anderson 2002). While the com-

mon pleas court does have the authority to assess

various fees against litigants, all fees received by the

court must be given to the county. Jd. § 325.27 (Ander-

son 1998). And while the State and county share the

costs of judges’ salaries, id. §§ 141.04, 141.05, 141.07

(Anderson 2001), it is the county that is obliged to

provide a courthouse and pay all expenses “reasonably

necessary for its operation,” including all the costs of

court personnel and services. Jd. § 307.01(B) (Anderson

Supp. 2001); Ohio Op. Att’y Gen. No. 89-029, 1989 WL

455369 (May 15, 1989). Thus, it appears that it would be

the county—not the State—that ultimately would be

22

responsible for providing the funds to pay the judgment

in this case."

The fourth factor—the court’s function—does

nothing to undercut its local character. Localities, as

well as States, have traditionally operated courts. See,

e.g., Ward v. Village of Monroeville, 409 U.S. 57 (1972)

(Mayor’s Court); Thompson v. City of Louisville, 362

U.S. 199 (1960) (Police Court).

Only the question of control weighs in favor of “arm

of the state” status. State law authorizes both the state

legislature and the state supreme court to remove

judges from their positions. See Ohio Rev. Code Ann.

§§ 2701.11-2701.12 (Anderson 2000). And the court’s

judicial decisions may be reviewed by the state

supreme court. But those considerations alone are not

dispositive. Cf. Hess, 513 U.S. at 44, 47-48 (fact that

States appointed and removed commissioners and that

governors could veto entity’s actions were not sufficient

to render the entity an arm of the state).

The Sixth Circuit’s decision here, applying its earlier

decision in Mumford, did not address this Court’s fac-

tors. Instead, the court focused on the fact that the

Cuyahoga County Court was created by state law. See

105 F.3d at 268-269. But the same is true of counties,

11 This understanding is confirmed by the county’s duties to de-

fend and to indemnify court personnel. The county must defend

suits brought against the common pleas judges and other court

personnel. Ohio Rev. Code Ann. § 309.09 (Anderson Supp. 2001);

Ohio Op. Att’y Gen. No. 85-014, 1985 WL 204483 (Apr. 9, 1985).

And the county must indemnify the judges and other personnel for

“any damages” awarded by a “state or federal court” if the person

was acting “in good faith and within the scope of his employment

or official responsibilities.” Ohio Rev. Code Ann. § 2744.07(A)(2)

(Anderson 2000); see Ohio Op. Att’y Gen. No. 88-055, 1988 WL

428848 (Aug. 25, 1988).

23

cities, and school districts—yet they indisputably do not

enjoy Eleventh Amendment immunity, even though

they exercise a “slice of state power.” Lake County

Estates, 440 U.S. at 401. Indeed, the entire analysis in

Mumford appears to have been skewed by the court’s

belief that a court of common pleas had to be either an

arm of the state or “an appendage” or “extension” of

the county government. 105 F.3d at 268. It did not

address the possibility that a court of common pleas,

like a school or water district, could be an entity apart

from the county and yet still not be entitled to the

State’s immunity.

Because it is highly dubious that petitioner is an “arm

of the state” entitled to invoke the States’ Eleventh

Amendment immunity, this case is ill-suited for con-

sideration of the important question of the consti-

tutionality of the Disabilities Act’s abrogation of that

immunity. At a minimum, the prospect of this Court’s

declaring unconstitutional a provision of federal law

duly enacted by the Congress and signed by the

President based on a constitutional provision’s hypothe-

sized application—especially when that application

is subject to substantial doubt—raises profound

separation-of-powers concerns that lie at the core of the

Ashwander principle of constitutional avoidance, see

Ashwander, supra, and that likewise should weigh

heavily in this Court’s exercise of its certiorari juris-

diction. Cf. Garrett, 531 U.S. at 360 n.1 (dismissing

as improvidently granted the question whether Title II

validly abrogated Eleventh Amendment immunity,

when there was an open question whether Title II ap-

plied to the conduct at issue).

4, Petitioner Popovich alsoseeks this Court’s review

(No. 01-1517 Pet. 6-15) of the question whether the

Cuyahoga County Court waived its Eleventh Amend-

24

ment immunity by failing to assert it at any stage of

this litigation, prior to its “cryptic” and “abbreviated,

afterthought reference” to it, Pet. App. A71, A33, near

the end of its court of appeals reply brief. We agree

that there is a substantial argument that the Cuyahoga

County Court did waive its Eleventh Amendment

immunity (if any). Its belated and opaque assertion of

the claim threatens the type of “inconsistency,

anomallies], and unfairness” and “unfair tactical ad-

vantage[s]” that this Court recently held the Eleventh

Amendment does not condone. Lapides, 122 S. Ct. at

1644-1645; see also Wisconsin Dep’t of Corr. v. Schacht,

524 U.S. 381, 394 (1998) (Kennedy, J., concurring) (“In

permitting the belated assertion of the Eleventh

Amendment bar, we allow States to proceed to judg-

ment without facing any real risk of adverse conse-

quences. Should the State prevail, the plaintiff would

be bound by principles of res judicata. If the State

were to lose, however, it could void the entire judgment

simply by asserting its immunity on appeal.”). Ata

minimum, the substantiality of the waiver question

presents yet another reason why this case is an in-

appropriate vehicle for consideration of the important

constitutional question presented. In light of the other

substantial jurisdictional and prudential problems

plaguing this case and the uncertainty this Court’s very

recent decision in Lapides casts over the circuit conflict

Popovich identifies (No. 01-1517 Pet. 11-14), a denial of

certiorari on the waiver question would not be inap-

propriate.” _

2 As Popovich acknowledges (No. 01-1517 Pet. 6 n.1), the court

of appeals’ opinion reflects a level of ambivalence about waiver

that counsels against plenary review of the question.

25

The United States, hawever, does nat annase

Popovich’s suggestion (No. 01-1517 Pet. 14) that the

court of appeals’ decision be vacated and the case

remanded for reconsideration in light of Lapides. This

Court recently undertook a similar disposition in a case

presenting an Eleventh Amendment challenge to the

Family and Medical Leave Act of 1993, 29 U.S.C. 2601

et seg. See Montgomery v. Maryland, 122 S. Ct. 1958

(2002). Such a remand would also be appropriate to

afford the parties the opportunity to call the court of

appeals’ attention to the mootness and other jurisdic-

tional problems identified above. Indeed, vacatur is

particularly appropriate because this case involves the

partial invalidation of an Act of Congress by a court

that lacked jurisdiction to assume that grave task.

CONCLUSION

The petitions for a writ of certiorari should be

granted, the judgment below vacated, and the case re-

manded for further consideration in light of the moot-

ness and jurisdictional problems discussed in this brief,

or in light of Lapides v. Board of Regents of the Uni-

versity System of Georgia, 122 S. Ct. 1640 (2002). In the

alternative, the petitions for a writ of certiorari should

be denied.

Respectfully submitted.

THEODORE B. OLSON

Solicitor General

RALPH F. BoyD, JR.

Assistant Attorney General

JESSICA DUNSAY SILVER

SETH M. GALANTER

Attorneys

JULY 2002