Opposition Brief — New Mexico v. Navajo Nation

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REiLe&eaO

No. 92-1238 FEB 25 1993,

In The DREGE G6 THE GLERM

Supreme Court of the United States

October Term, 1992

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STATE OF NEW MEXICO, et al.,

Petitioners,

NAVAJO NATION, et al.,

Respondents.

*

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

°

BRIEF IN OPPOSITION TO A

PETITION FOR WRIT OF CERTIORARI

¢

Hers YAZZIE

Attorney General of the

Navajo Nation

Britt E. CLaPHaM, II

Senior Assistant

Attorney General

FRANK M. SEANEZ

Assistant Attorney General

[Counsel of Record]

STANLEY M. PoLLAck

Assistant Attorney General

THOMAS W. CurisTIE

Attorney

P.O. Drawer 2010

Window Rock, Arizona 86515

(602) 871-6343

Counsel for Respondents

February 25, 1993

COCKLE LAW BRIEF PRINTING CO, om 225.6964

OR CALL COLLECT (402) 342-283

TABLE OF CONTENTS

Page

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PO SRIINOs 6.68 6 deka chbscsnccncscceeess 5

REASONS FOR DENYING THE WRIT.......... coor oF

I. Summary of the Argument ................... 7

A. Grounds for Grant of Certiorari .......... 7

B. Abuse of Discretion................. eer 7

C. Eleventh Amendment Claims ............. 7

D. Scope of Prospective Injunction........... 8

II. This Court Should Not Grant a Writ of Cer-

tiorari to Review an Alleged Abuse of Discretion

Ill. The Trial Court Granted Appropriate Prospec-

tive Injunctive Relief Consistent With the Elev-

enth Amendment to the United States

IIA 6 VAs Senn n05s smi cabana baaWanene kes 11

IV. The Court of Appeals Correctly Affirmed the

Prospective Injunctive Relief as an Appropriate

Remedy for a Continuing Violation of the Four-

teenth Amendment to the United States Consti-

CTR ik on ake cdaken ss evseckiubunevestecbeseee 16

EEE ScGcKearubawevethaNeakeb beueecene<a 18

ii

TABLE OF AUTHORITIES

Page

Cases

Anderson v. City of Bessemer City, 470 U.S. 564

ti) Bee errr yer rs ho eR ey 7

Bennett v. White, 865 F.2d 1395 (3rd Cir. 1989)....... 11

Board of Education of Oklahoma City v. Dowell, 498

U.S. SOF CURE) ona cscnsnsissccawae saute deaeeewees 10

Cronen v. Texas Department of Human Services, 977

F.2d 936 Gil Cie, WGR)s oi xisveatacceecuueneuesoes 11

Edelman v. Jordan, 415 U.S. 651 (1974)......... 8, 16, 17

Ex Parte Young, 209 U.S. 123 (1908) ............ 7, 8, 11

General Talking Pictures Corporation v. Western Elec-

tric Company, 304 US. 173 (1938) .... cs cccecenecces 9

Goodman v. Lukens Steel Company, 482 U.S. 656

CRD D <n.osiseonn cuesn05e6 ene eeben bens ee eeeeeee 7, 10

Green v. Mansour, 474 U.S. 64 (1985).......... 12, 13, 17

Kelley v. Metropolitan County Board of Education,

S36 RAd SOG th Che BR) a x cas ccecndsanias acs i3, 17

Missouri v. Jenkins, 495 U.S. 33 (1990) ........ 13, 14, 17

National Labor Relations Board v. Waterman S.S. Cor-

poratsen, 300 455. FOG TIPU) ais3.0s cen sepstcandwess 9

Navajo Nation v. State of New Mexico, No. 86-576-M

Civil, (D.N.M. July 15, 1991)........ 2, 4% 9, 82, 17

Navajo Nation v. State of New Mexico, 975 F.2d 741

CR SOO, TOs vn shen ce vacsenasauenbaveeaas 6, 7, 17

Papasan v. Allain, 478 U.S. 265 (1986).......... 8, 10, 11

iii

TABLE OF AUTHORITIES

Page

Robinson v. Block, 869 F.2d 202 (3rd Cir. 1989)....... 11

United States v. Johnston, 268 U.S. 220 (1925).......... 4

Wolf v. New Mexico, No. CIV 80-623-JB (D.N.M.

ee i.e sudo kde is eaeevececveseces 2

STATUTES AND Court RULEs:

Social Security Act, 42 U.S.C. §§ 1397-1397(f)

Gap ao kh Gs xa ucssec eco cdd00ceecconee 1

SE ee 7

Fed. R. Civ. P. 52

No. 92-1238

¢

In The

Supreme Court of the United States

October Term, 1992

s

STATE OF NEW MEXICO, et al.,

Petitioners,

NAVAJO NATION, et al.,

Respondents.

¢

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

e

BRIEF IN OPPOSITION TO A

PETITION FOR WRIT OF CERTIORARI

¢

Respondents Navajo Nation, et al., respectfully pray

that a writ of certiorari not be issued to review the

judgment and opinion of the United States Court of

Appeals for the Tenth Circuit, entered in the above-enti-

tled proceeding on September 22, 1992.

¢

STATEMENT OF THE CASE

I. Facts

Petitioners receive federal funds under Title XX of

the Social Security Act, 42 U.S.C. § 1397 et seq. to provide

social services to residents of New Mexico. Navajo Nation

v. State of New Mexico, No. 85-576-M Civil, slip op. at 2

(D.N.M. July 15, 1991). Petitioners’ Appendix at 13. Peti-

tioners do not utilize state general funds to provide Title

XX social services, but only allocate federal funds among

the qualifying programs for this purpose.

Petitioners provide few direct social services to

Navajos residing in New Mexico, and none in the areas of

protective services or home care. Id. at 5. Instead, since

1975, the petitioner contracted with the Navajo Nation to

provide Title XX social services to Navajo residents of

Navajo Indian Country in New Mexico. Id. at 5.

In June 1985, the State of New Mexico, Division of

Social Services recommended that petitioners fund a con-

tract with the Navajo Nation in the amount of $446,277 to

provide Title XX services to Navajos residing in the por-

tion of Navajo Indian Country within New Mexico. Id. at

7. This amount was $20,000 less than the amount which

had been allocated in the previous year. Petitioners gen-

erated the contract documents and the Chairman of the

Navajo Nation Council executed the contract on behalf of

the Navajo Nation.

At that time Mr. Juan Vigil, Secretary of the New

Mexico Human Services Department, was responsible for

allocation of the Title XX federal funds received by New

Mexico as well as ensuring compliance with a court

order! to which the New Mexico Human Services Depart-

ment had stipulated in November 1984 which required

1 Wolf v. New Mexico, No. CIV 80-623-JB (D.N.M. Nov. 21,

1984).

the maintenance of citizen’s review boards. Id. at 8-9.

$168,000 of the funds needed for these boards were not

budgeted for the state fiscal year in either federal or state

general funds.

Vigil examined several potential sources to make up

the shortfall, and every funding alternative had its draw-

backs: reduced services, state employee layoffs, dissat-

isfied constituents, and angry legislators. Vigil wanted to

avoid adjusting the Division of Social Services direct

services budget, and avoid reducing contracts across-the-

board, even though such a reduction would reduce Title

XX services equally throughout the state, primarily

because he wanted to avoid the political repercussions of

a statewide service reduction. Id. at 9-10. Faced with this

dilemma, he made an expedient, and unconstitutional,

decision. Id. at 10.

As a solution to his problem, Vigil took all of the one

hundred sixty eight thousand dollars ($168,000) needed

for the review boards from the contract with the Navajos.

The effect of that decision was that only the Navajo

population would shoulder the impacts of the service

reduction. Only Navajo employees were laid off. Only

services to Navajo were eliminated as a consequence of

Vigil’s actions, and the threat of political reprisals was

minimized. To preserve his political standing elsewhere

in the State, Navajo Indian Country Title XX contract

funds were cut forty percent (40%). Forty percent (40%)

of home care workers in the New Mexico portion of

Navajo Indian Country were terminated. The number of

clients that could be served dropped from 400 to 240.

It was not just in 1985 that the Navajos bore the

burden of Vigil’s unconstitutional action. In every year

from 1985 through the trial of this case in 1991, peti-

tioners primarily based Title XX contract funding on the

level of funding in the previous year. Id. at 10. Thus, from

1985 through 1991, Navajos residing in New Mexico con-

tinued to suffer the disparate impact of the unconstitu-

tional 1985 funding cut.

Certain of the facts asserted by petitioners are mis-

leading. These alleged facts were rejected by the trial

court.?

Because the Tenth Circuit Court of Appeals deter-

mined that the trial court’s findings were supported by

the trial record, it rejected petitioners’ argument that the

trial court’s findings of fact were clearly erroneous.

2 In some instances the “facts” asserted by petitioners

directly contradict the findings of the trial court. For example,

petitioners advise this Court that, “Secretary Vigil testified that

home care programs, other than the Navajo Nation program,

could not remain viable if funding to those programs was

reduced.” Petition at 4. The trial court found that “[o]ther con-

tracts could have been reduced along with reductions to the

Navajo contract without destroying the viability of their pro-

grams.” Navajo Nation v. State of New Mexico, No. 85-576-M Civil,

slip op. at 9 (D.N.M. July 15, 1991). Petitioners claim that “[i]t

was [Vigil’s] opinion that only the Navajo Nation program was

of sufficient size to withstand a funding cut and remain viable.”

Petition at 5. However, the trial court found that “[t]he decision

to obtain funding for the citizen review boards only from the

Navajo contract was based primarily on concerns about political

retaliation if cuts were made elsewhere in the state.” Navajo

Nation v. State of New Mexico, No. 86-576-M Civil, slip op. at 9-10

(D.N.M. July 15, 1991). Petitioners attempt to have this Court

redecide issues of fact.

Navajo Nation v. State of New Mexico, 975 F.2d 741, 745

(10th Cir. 1992).

II. Proceedings Below

The trial court examined the historical relationship

between Navajos and the petitioners, the history of peti-

tioners’ administration of the Title XX program, the

departures from the procedural and substantive norms in

the decision-making process, the disparate impact of the

decision and petitioners’ justifications for their actions.

Navajo Nation v. State of New Mexico, No. 86-576-M Civil,

slip op. at 11 (D.N.M. July 15, 1991). The trial court

concluded that the funding reduction was both a facially

discriminatory act and was motivated in part by an intent

to discriminate against Navajos in violation of the right of

Navajo Indians to the equal protection of the law. Id.

Respondents’ claims for damages were held to be barred

by the operation of the Eleventh Amendment; however,

the court ordered a restoration of funding in 1991 and

subsequent years to eliminate the ongoing effects of the

Constitutional violation. Id. at 12-13.

The trial court made factual findings about each of

the factors this Court has held to be necessary when a

court determines whether an individual operating under

color of state law has acted with invidious discriminatory

intent. Id. at 10-11. The factual record fully supports the

trial court’s legal conclusions and, as demonstrated

below, those conclusions fully warrant the declaratory

and injunctive relief awarded by the court.

The trial court held that Vigil had denied Navajos

equal protection by cutting federal Title XX funds for

social services, and determined that the constitutional

deprivation continued from 1985 through the time of

trial. As a remedy, the court required petitioners to allo-

cate in 1991 and future years at least the level of federal

Title XX funding for Navajo social services which Navajos

would have received absent the unconstitutional actions

of petitioners in 1985. The trial court allowed the peti-

tioners to allocate federal title XX funds at a lower level,

if they could justify the lower allocation on the basis of

reduced need. Id. at 13.

The Tenth Circuit determined that the findings of the

trial court were fully supported by the trial record. Navajo

Nation v. State of New Mexico, 975 F.2d 741, 742 (10th Cir.

1992). The Tenth Circuit concluded that the findings were

not “clearly erroneous”. Id. at 745. The Tenth Circuit

found that petitioners had invidiously discriminated

against Navajos, and that the prospective injunctive relief

was an appropriate remedy for the continuing depriva-

tion of equal protection under applicable precedent from

this Court. Id. at 745-746. Accordingly, the Tenth Circuit

properly upheld the decision of the trial court.

The Tenth Circuit decided that it need not reach the

issue of whether the trial court was correct in finding that

the cuts to Navajo social services were facially discrimi-

natory, because the “district court’s decision stands easily

on its alternative disparate analysis.” Id. at 743.5

S

3 Respondents continue to assert that the trial court was

correct in its decision that the facially discriminatory actions of

petitioners constitute a separate and sufficient basis for the

prospective injunctive relief.

REASONS FOR DENYING THE WRIT

I. Summary of the Argument

A. Grounds for Grant of Certiorari

This case presents neither of the factors under which

this Court should exercise its discretion to grant a review

on writ of certiorari. This case does not present, “an

important question of federal law which has not been, but

should be, settled by this Court.” Sup. Ct. R. 10.1.C. Nor

did the Tenth Circuit “decide a federal question in a way

that conflicts with applicable decisions of this Court.” Id.

B. Abuse of Discretion

Petitioners have challenged the fact finding of the

trial court; however, this Court will not, absent a very

obvious and exceptional showing of error, review find-

ings of fact. Goodman v. Lukens Steel Company, 482 U.S. 656

(1987). The standard for review in such a case requires

that the findings be “clearly erroneous” to merit review

by this Court. Anderson v. City of Bessemer City, 470 U.S.

564 (1985). While petitioners have attempted to assert this

case as an important Eleventh Amendment matter, it is

simply an alleged abuse of discretion case.

C. Eleventh Amendment Claims

The trial court granted prospective relief against peti-

tioners consistent with the principles enunciated in Ex

Parte Young, 209 U.S. 123 (1908). The prospective injunc-

tive relief imposed was consistent with the exceptions to

Eleventh Amendment bars to suit against the State con-

templated in Ex Parte Young and its progeny. See Papasan

v. Allain, 478 U.S. 265 (1986). The equitable remedy fash-

ioned by the trial court was designed to rectify an al

ing violation of federal law.

The trial court’s grant of prospective relief met the

requirements of Edelman v. Jordan, 415 U.S. 651 (1974).

Clear distinctions exist between the circumstances of

Edelman and this case. The trial court denied the Navajo

Nation compensatory relief for the years between 1985

and 1991 and granted only declaratory and prospective

injunctive relief. Petitioners’ reliance on cases which cite

the Eleventh Amendment prohibition against the use of

state funds to compensate aggrieved parties for past

instances of discrimination is misplaced where the injunc-

tive relief is prospective in nature, not retroactive or

compensatory.

D. Scope of Prospective Injunction

The trial court was well within its equitable powers

in granting prospective injunctive relief which requires

petitioners to fund Navajo Title XX social services at a

specific minimum amount. The cases which petitioners

raise as authority are easily distinguishable from this

case, where there was a continuing constitutional viola-

tion. ere

No basis exists for a Writ of Certiorari.

Il. THIS COURT SHOULD NOT GRANT A WRIT OF

CERTIORARI TO REVIEW _ AN ALLEGED ABUSE

OF DISCRETION.

Petitioners’ request for a Writ of Certiorari is ostensi-

bly based on their assertion that an important federal

question has been raised in this case; however, no such

question exists. Petitioners’ challenge is actually to the

fact finding of the trial court, and is the integral compo-

nent of their petition. Petition at 5-10.4

The United States Supreme Court will not grant a

writ of certiorari to review evidence or discuss specific

facts, United Stafes v. Johnston, 268 U.S. 220 (1925), to

review inferences drawn from evidence, General Talking

Pictures Corporation v. Western Electric Company, 304 U.S.

175 (1938), or to review judgments based solely on ques-

tions of fact, National Labor Relations Board v. Waterman

S.S. Corporation, 309 U.S. 206 (1940). Findings of fact shall

not be set aside unless clearly erroneous. Federal Rule of

* Petitioners attack the trial court’s finding that Vigil’s pri-

mary consideration to cut Navajo Title XX contract funding was

based on concerns about political retaliation if cuts were made

elsewhere in the state. Navajo Nation v. State of New Mexico, No.

86-576-M Civil, slip op. at 9-10 (D.N.M. July 15, 1991). Peti-

tioners’ continued assertion that Vigil’s decision was based on

the fact that only the Navajo contract could sustain a funding

cut and remain viable, Petition at 5, ignores the specific finding

of the trial court that other programs could have sustained a

funding cut and remained viable. Id.

Moreover, petitioners continue to attack the finding of the

trial court that, since 1983 the amount of funding received by

Title XX contractors has been based primarily on the amount

they received in the previous year, id. at 21, arguing that the trial

court erred in this factual finding. Petition, at 9.

10

Civil Procedure 52(a); Goodman v. Lukens Steel Company,

482 U.S. 656 (1987).° In the absence of a very obvious and

exceptional showing of error, this Court should affirm the

determinations of the lower courts.

In this case, the Tenth Circuit reviewed the record

and accepted the findings of the trial court relative to the

motivation of the defendants to intentionally discriminate

against Navajos. Navajo Nation v. State of New Mexico, 975

F.2d 741, 745 (10th Cir. 1992). The Tenth Circuit upheld

the finding of the trial court regarding the political

motivation of the funding cut and the viability of funding

cuts to other programs. Id. The Tenth Circuit upheld the

finding that the constitutional violation was ongoing and

continuous. Id. at 746. This Court should not grant a Writ

of Certiorari in order to review the findings of fact.®

5 In Goodman, this Court stated, “The Court of Appeals did

not set aside any of the District Court's findings of fact that are

relevant to this case. That is the way the case comes to us, and

both courts below, having agreed on the facts, we are not

inclined to examine the record for ourselves absent some

extraordinary reason for undertaking this task.” 482 U.S. at 665.

© Petitioners herein always have the option of moving the

district court to modify the relief granted if the facts underlying

the injunction have changed. Board of Education of Oklahoma City

v. Dowell, 498 U.S. 237 (1991).

11

Ill. THE TRIAL COURT GRANTED APPROPRIATE

PROSPECTIVE INJUNCTIVE RELIEF CONSIS-

TENT WITH THE ELEVENTH AMENDMENT TO

THE UNITED STATES CONSTITUTION

The trial court decided this case in accord with this

Court’s decision in Ex Parte Young, 209 U.S. 123 (1908),

which established an exception to the general Eleventh

Amendment bar in situations wherein injunctive relief is

sought against a state official who performs acts which

violate the Federal Constitution. Here, as in Young, the

trial court had the authority to issue an injunction to

prevent continuing unconstitutional actions of state offi-

cials.

Petitioners’ reliance on Papasan v. Allain, 478 U.S. 265

(1986), is misplaced. Papasan states that the grant of

injunctive relief against a state official to “bring an end to

a present violation of federal law is not barred by the

Eleventh Amendment even though accompanied by a

substantial ancillary effect on the state treasury.” 478 U.S.

at 278. Here no state general funds are involved, as only

federal funds are allocated by petitioners. This fact obvi-

ates the need for an Eleventh Amendment analysis.”

7 In this case, the injunctive relief granted by the trial court

involves the allocation of federal funds and not the expenditure

of state general funds. In that aspect, the facts in this case more

closely resemble those in Cronen v. Texas Department of Human

Services, 977 F.2d 934 (5th Cir. 1992), Robinson v. Block, 869 F.2d

202 (3rd Cir. 1989), and Bennett v. White, 865 F.2d 1395 (3rd Cir.

1989). These cases stand for the principle that the Eleventh

Amendment does not apply to suits against state officials, in

their official capacity, where the funds at issue are federal funds

and not state general funds.

12

The courts below recognized that the current viola-

tion of equal protection stems from the actions of Vigil in

1985, and that Navajos continue to suffer from the dis-

parity in distribution of Title XX funds. The prospective

injunctive relief granted by the trial court does nothing

more than to correct the disparity created in 1985 due to

petitioners’ allocation scheme.

This case stands in stark contrast to the situation in

Green v. Mansour, 474 U.S. 64 (1985), relied on by the

petitioners. Petitioners have continued to base funding

levels for Navajo social services on an unconstitutional

1985 action. Navajo Nation v. State of New Mexico, No.

86-576-M Civil, slip op. at 12 (D.N.M. July 15, 1991).

Petitioners “continue to deny that the decision in 1985 to

cut the funding of the Navajo Nation Title XX program

and the current funding of the program constitutes pur-

poseful discrimination against Navajos,” Petition at 8,

and argue that restoration of the pre-discrimination level

of funding is beyond the equitable powers of the federal

courts to order. Id. at 21. This is precisely the type of

constitutional violation which requires an injunction.

Green makes it clear that “[r]emedies designed to end

a continuing violation of federal law are necessary to

vindicate the federal interest in assuring the supremacy

of that law.” 474 U.S. at 68. The reason that declaratory

and notice relief were barred in Green is that there was,

“no claimed continuing violation of federal law and

therefore no occasion to issue an injunction.” Id. at 73.8

8 In Green, this Court was presented with a fact situation

wherein the state officials had modified their actions to comply

13

This Court made its decision against a backdrop of state

action where there was no “threat of state officials violat-

ing the repealed law in the future.” Id. at 73.

This case is similarly distinguishable from Kelley v.

Metropolitan County Board of Education, 836 F.2d 986 (6th

Cir. 1987). In Kelley, the plaintiffs had “long since won

their case.” 836 F.2d at 989. The educational and transpor-

tation program enhancements required by the district

court had long since been implemented by the defen-

dants. It was with this factual predicate that the Sixth

Circuit determined that “the vitality of the Supremacy

Clause of the United States Constitution will not suffer in

any way from our reversal of the district court’s order.”

Id. at 990.

Here, the injunctive relief was granted at the same

time that the trial court determined that petitioners were

continuing a course of unconstitutional deprivation

against Navajos begun in 1985. As distinguished from the

- situation in Kelley, Navajos were not receiving equal pro-

tection prior to the grant of prospective injunctive relief

by the trial court. In this case, affirmance of the prospec-

tive injunctive relief granted to Navajos is necessary to

maintain the vitality of the Supremacy Clause.

Petitioners’ reliance on Missouri v. Jenkins, 495 U.S. 33

(1990) again illustrates the deficiency of their petition for

review. Petitioners cite Jenkins for the principle that “one

with federal law. 474 U.S. at 65. In this case, the petitioners insist

on continuing their violations of federal law.

14

of the most important considerations governing the exer-

cise of equitable power is a proper respect for the integ-

rity and function of local government institutions.” 495

U.S. at 51; Petition at 19. However, they have truncated

this reference to exclude the full expression of this Court,

which continued on to state, “Especially is this true

where, as here, those institutions are ready, willing, and -

but for the operation of state law curtailing their powers

- able to remedy the deprivation of constitutional rights

themselves.” 495 U.S. at 51.

Here, petitioners are neither ready, nor willing to

remedy the deprivation of constitutional rights them-

selves. Indeed, they continue to deny that they have

taken unconstitutional action against Navajos. Petition at

8. In only one aspect are petitioners in this case in the

same position as petitioners in Missouri v. Jenkins, 495

U.S. 33 (1990). They are able to take remedial action to

prospectively correct their unconstitutional behavior by

restoring the level of Title XX funding for Navajo social

services to that amount which had been determined

appropriate and necessary prior to their discriminatory

actions in 1985.

In Jenkins, this Court granted certiorari on the issue

of whether the district court had the authority to raise the

local property tax which would be required to fund the

remedial order. Id. at 37. This Court reversed the district

court on the limited holding that the district court lacked

the power to actually impose the tax itself. Id. at 52. Here

it is clear that the trial court has not attempted to impose

a tax.

15

While petitioners in Jenkins claimed that the remedial

order in that case exceeded the equitable powers of the

district court, this Court rejected their argument. Id. at 53.

In Jenkins, the remedial order required the petitioner to

undertake a varied set of new or enhanced education and

related programs, the cost of which was well in excess of

$37 million. Id. at 38, n.4.

The prospective injunctive relief granted by the trial

court in this case is modest and appropriate. Petitioners

obfuscate the issues by focusing on the amount of Title

XX funding which is involved in the prospective injunc-

tive relief. Petition at 20. The amount at issue is merely

the difference between the figure of $446,277 and the

contract amount at which the petitioners would other-

wise fund federal Title XX social services for Navajos. In

no year between 1985 and 1991 has this difference

exceeded $200,000.

Petitioners argue that the trial court exceeded its

equitable powers by prospectively restoring in 1991 what

petitioners admitted was the appropriate baseline level of

funding for Navajo social services in 1985.9 In light of

these conditions and established case law, it is puzzling

why petitioners argue that the trial court exceeded its

equitable powers by its grant of prospective injunctive

relief.

9 Petitioners have conceded that “those who are familiar

with the Navajo people and their needs recognize that, at least

in the foreseeable future, the state will never be able to prove

that there is a lesser need for services.” Petition at 18.

16

Petitioners’ reliance on Edelman v. Jordan, 415 U.S. 651

(1974), is misplaced. In Edelman, this Court reversed what

was Clearly a retroactive grant of monetary damages from

state funds. This Court recognized that the district court’s

decree, “requires payment of state funds, not as a neces-

sary consequence of compliance in the future with a

substantive federal-question determination, but as a form

of compensation to those whose [individual Social Secu-

rity] applications were processed on the slower time

schedule at a time when petitioner was under no court-

imposed obligation to conform to a different standard.”

415 US. at 668.

This case does not involve payment of an accrued

monetary liability. It prospectively requires the allocation

of federal Title XX funds to the Navajo Nation at the

minimum level ordered by the trial court as a necessary

consequence of compliance with equal protection stan-

dards. In that manner, this case is clearly distinguishable

from Edelman.

IV. THE COURT OF APPEALS CORRECTLY

AFFIRMED THE PROSPECTIVE INJUNCTIVE

RELIEF AS A REMEDY FOR A CONTINUING

VIOLATION OF THE FOURTEENTH AMEND-

MENT TO THE UNITED STATES CONSTITU-

TION

Petitioners have not maintained and do not allege

herein that they revisited their 1985 decision to cut the

level of Title XX funding for Navajo social services. Even

the facts asserted in their Petition show that the baseline

level of federal Title XX funding has never been restored

since their unconstitutional action in 1985. Petition at 6-7.

17

The 1985 funding cut was an impermissible, unconstitu-

tional action by petitioners against Navajos. As all subse-

quent funding allocations were based on the same

unconstitutional act, they share that same discriminatory

taint.

The trial court found that, “[b]ecause the amount of

funding is based each year on the previous year’s

amount, the Tribe’s present level of funding is the result

of defendants’ unconstitutional decision in 1985.” Navajo

Nation v. State of New Mexico, No. 86-576-M Civil, slip op.

at 12 (D.N.M. July 15, 1991). The Tenth Circuit affirmed,

reasoning that “[iJf the Navajo Nation was receiving

equal treatment before the unilateral cut, it must after-

wards have been receiving proportionately less. More-

over, because each year’s funding is determined

according to the previous year’s, the disparity continues

to this day.” Navajo Nation v. State of New Mexico, 975 F.2d

741, 746 (10th Cir. 1992).

The discussions of case law cited in the first portion

of their Petition are equally applicable to their second

argument. The cases cited by petitioners, Kelley, Green,

Edelman, and Jenkins are all distinguishable from this

case.10

Petitioners misunderstand that the on-going constitu-

tional violations arise from petitioners’ methodology of

determining prospective funding allocations based on the

previous year’s funding allocation. The trial court in this

case fashioned an equitable remedy which was tailored to

the circumstances of this continuing violation of federal

10 Inasmuch as these cases are distinguished above, the

respondents will not repeat the analysis here.

18

law, and merely restored to Navajos the equal protection

of which they were continuously deprived from 1985

onward.

S

CONCLUSION

For the foregoing reasons, the Petition for Certiorari

should be denied and the trial court’s award affirmed in

its entirety.

Respectfully submitted,

Hers YAZzie

Attorney General of the

Navajo Nation

Britt E. CiapHam, II

Senior Assistant

Attorney General

FRANK M. SEANEZ

Assistant Attorney General

{Counsel of Record]

STANLEY M. POLLAck

Assistant Attorney General

THomas W. CurisTIE

Attorney

P.O. Drawer 2010

Window Rock, Arizona 86515

(602) 871-6343

Counsel for Respondents