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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2002
- **Citation:** 537 U.S. 812

## Text

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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1703%3A2. Public record. Not legal advice.