Petition for Writ of Certiorari — Wilson v. Armstrong

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Supreme Court, U.S.

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NO. orice OF THE CLERK

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

PETE WILSON, et al., Petitioners,

JOHN ARMSTRONG, et al., Respondents.

STATE OF CALIFORNIA, et al., Petitioners,

DERRICK CLARK, et al., Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

DANIEL E. LUNGREN

Attorney General

GEORGE WILLIAMSON

Chief Assistant Attorney General

PETER J. SIGGINS

Senior Assistant Attorney General

*JAMES M. HUMES

Supervising Deputy Attorney General

WILLIAM JENKINS

Deputy Attorney General

*Counsel of Record

50 Fremont St., Room 300

San Francisco, CA 94105

Telephone: (415) 356-6037

Fax: (415) 356-6070

Counsel for Petitioners

QUESTIONS PRESENTED

1. Should the Court resolve the split among the

circuits and determine whether Title II of the Americans

with Disabilities Act and Section 504 of the Rehabilitation

Act” apply to the States’ management of their convicted

felons?

2. Are the statutes valid Fourteenth Amendment

enactments which support congressional abrogation of

petitioners’ Eleventh Amendment immunity?

3. Does Ex parte Young provides an exception to

the state officials’ Eleventh Amendment immunity?

1. Title II of the Americans with Disabilities Act and Section 504

of the Rehabilitation Act will be referred to as "the Statutes."

LIST OF PARTIES

In Armstrong v. Wilson, petitioners are Pete

Wilson, Governor of the State of California, Joseph

Sandoval, Secretary of the California Youth and Adult

Corrections Agency, C.A. Terhune, Director of the

California Department of Corrections, Robin Dezember,

Deputy Director of Health Care Services for the

California Department of Corrections, Judith McGillivray,

Deputy Director of the Planning and Construction

Division of the California Department of Corrections,

David Tristan, Deputy Director of the Institutions Division

of the California Department of Corrections, Marisela

Montes, Deputy Director of the Parole and Community

Services Division of the California Department of

Corrections, and James Nielsen, Chairman of the

California Board of Prison Terms. Respondents are a

class comprising all present and future California state

inmates and parolees with mobility, sight, hearing,

learning, or kidney impairments that substantially limit one

or more of their major life activities.

In Clark v. State of California, petitioners are the

State of California, the California Department of

Corrections, Pete Wilson, Governor of the State of

California, Joseph Sandoval, Secretary of the California

Youth and Adult Corrections Agency, C.A. Terhune,

Director of the California Department of Corrections,

Robin Dezember, Deputy Director of Health Care

Services for the California Department of Corrections,

Nadim Khoury, M.D., Assistant Deputy Director of Health

Care Services for the California Department of

Corrections, and Marjouri TaVoularis, M.D., Chief

Psychiatrist for the California Department of Corrections.

Respondents are a class comprising all persons with :

developmental disabilities under the control of the

California Department of Corrections.

——

Pe ne eee oe ae Sere

ili

OPINIONS BELOW

STATEMENT OF JURISDICTION

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

STATEMENT OF THE CASES

REASONS FOR GRANTING THE WRIT

II.

THERE IS A CLEAR CONFLICT

AMCNG THE CIRCUITS

REGARDING THE

APPLICABILITY OF THE

STATUTES TO THE STATES’

MANAGEMENT OF THEIR

CONVICTED FELONS.

THE NINTH CIRCUIT’S

DECISIONS REGARDING

ELEVENTH AMENDMENT

IMMUNITY CONFLICT WITH

DECISIONS OF THE COURT AND

INVOLVE IMPORTANT ISSUES

THAT SHOULD BE SETTLED BY

THE COURT.

A. The decision in Clark

regarding Congress’s power

to abrogate Eleventh

Amendment immunity.

TABLE OF CONTENTS, CONT’D

B. The decisions regarding the

Ex parte Young exception to

Eleventh Amendment

immunity. 12

Ill. THE QUESTIONS PRESENTED

ARE IMPORTANT. i4

CONCLUSION 18

Cases

Amos v. Maryland Dep’t of Public Safety

and Correctional Servs.

No. 96-7091

1997 WL 581652

(4th Cir. Sept. 22, 1997)

Atascadero State Hosp. v. Scanlon

473 U.S. 234 (1985)

BFP v. Resolution Trust Corp.

114 S. Ct. 1757 (1994)

Bonner v. Lewis

857 F.2d 559 (9th Cir. 1988)

Bryant v. Madigan

84 F.3d 246 (7th Cir. 1996)

City of Boerne v. Flores

117 S. Ct. 2157 (1997)

Cleburne v. Cleburne Living Ctr.

473 U.S. 432 (1985)

Crawford v. Indiana Dep’t of Corrections

115 F.3d 481 (7th Cir. 1997)

Duffy v. Riveland

98 F.3d 447 (9th Cir. 1996)

SY,

10, 11

re eT

TABLE OF AUTHORITIES, CONT’D

EEOC v. Wyoming

460 U.S. 226 (1983) 12

Garcia v. San Antonio Metro. Transit Auth.

469 U.S. 528 (1985) 13

Green v. Mansour

474 US. 54 (1985) 9

Gregory v. Ashcroft

501 U.S. 452 (1991) 6, 14

Idaho v. Coeur d’Alene Tribe of Idaho

117 S. Ct. 2028 (1997) im i3

Katzenbach v. Morgan

384 U.S. 641 (1966) 9, 11

Lane County v. Oregon

7 Wall. 71 (1869) 15

Lewis v. Casey

116 S. Ct. 2174 (1996) 16

Massachusetts Bd. of Retirement v. Murgia

427 U.S. 307 (1976) 10

McCulloch v. Maryland

17 U.S. 316 (1819) 9

Nihiser v. Ohio EPA

No. C2-94-1258 (S.D. Ohio Aug. 7, 1997) 12

mi aa naan

vii

TABLE OF AUTHORITIES, CONT'D

Oregon v. Mitchell

400 U.S. 112 (1970)

Pierce v. King

918 F. Supp. 932 (D.N.C. 1996)

Preiser v. Rodriguez

411 US. 475 (1973)

Printz v. United States

117 S. Ct. 2365 (1997)

Sandin v. Conner

115 S. Ct. 2293 (1995)

Screws v. United States

325 U.S. 91 (1944)

Seminole Tribe of Florida v. Florida

116 S. Ct. 1114 (1996)

South Carolina v. Katzenbach

383 U.S. 301 (1965)

Texas v. White

7 Wall. 700 (1869)

Torcasio v. Murray

57 F.3d 1340 (4th Cir. 1995)

Turner v. Safley

482 U.S. 78 (1987)

viii

TABLE OF AUTHORITIES, CONT’D

White v. Colorado

82 F.3d 364 (10th Cir. 1996)

Will v. Michigan Dep’t of State Police

491 U.S. 58 (1989)

Wilson-Jones v. Caviness

99 F.3d 203 (6th Cir. 1996)

Yeskey v. Pennsylvania Dep’t of Corrections

118 F.3d 168 (3rd Cir. 1996)

Ex parte Young

209 U.S. 123 (1908)

Statutes

28 United States Code

§ 1254(1)

29 United States Code

§ 701(a)(5)

§ 794

42 United States Code

§ 1983

§ 2000d-7(a)(1)

§ 12101(a)

§§ 12131-12134

§ 12202

Court Rules

Federal Rule of Civil Procedure

12(b)

passim

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

No.

PETE WILSON, et al., Petitioners,

JOHN ARMSTRONG, et al., Respondents.

STATE OF CALIFORNIA, et al., Petitioners,

DERRICK CLARK, et al., Respondents.

NION Ww

The opinion of the court of appeals in Armstrong

v. Wilson is reported at 1997 WL 525521 (9th Cir. Aug.

27, 1997). Appendix la. The opinion of the district court

is reported at 942 F.Supp. 1252 (N.D. Cal. 1996).

Appendix 20a.

The opinion of the court of appeals in Clark v.

State of California is reported at 1997 WL 525518 (9th Cir.

Aug. 27, 1997). Appendix 46a. The opinion of the district

court is unreported. Appendix 56a.

Petitioners submit this joint petition to address

the identical or closely related issues raised by these

companion cases.

STATEMENT OF JURISDICTION

The court of appeals entered its judgment in

both cases on August 27, 1997. The jurisdiction of the

Court is invoked under 28 U.S.C. § 1254(1) (1994).

CON ON ON

AND STATUTES INVOLVED

Amendment XI [1798}

The Judicial power of the United States shall not

be construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United

States by Citizens of another State, or by Citizens or

Subjects of any Foreign State.

Amendment XIV [1868]

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein they

reside. No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws.

Section 5. The Congress shall have power to

enforce, by appropriate legislation, the provisions of this

article.

ericans wit — ct

Title II of the Americans with Disabilities Act is

set forth at 42 U.S.C. §§ 12131-12134 (1994). It is

presented in its entirety at Appendix 114a.

Section 504 of the Rehabilitation Act

Section 504 of the Rehabilitation Act of 1973 is

set forth at 29 U.S.C. § 794 (1994). It is presented in its

entirety at Appendix 117a.

STATEMENT OF THE CASES

Armstrong v. Wilson

Respondents initiated this suit by alleging that

petitioners had violated the statutes by engaging in

discrimination, failing to make correctional facilities

accessible, and failing to provide access to correctional

programs and activities, and had violated various

regulations promulgated under the ADA. They sought

wide-ranging and extraordinarily intrusive injunctive relief.

Pursuant to a stipulated process for determining

liability and remedy, petitioners filed a dispositive motion

in which they argued that the statutes are inapplicable to

California’s management of its convicted felons, and that

the district court lacked jurisdiction pursuant to the

Eleventh Amendment. The district court denied the

motion, and entered findings of fact, conclusions of law, a

remedial order, and an injunction. Appendix 77a.

Petitioners appealed to the Ninth Circuit, which

affirmed the order of the district court. The court of

appeals concluded that the statutes apply to California’s

management of its convicted felons, and that Ex parte

Young provides an exception to petitioners’ immunity

under the Eleventh Amendment. Appendix 11a-19a.

Respondents initiated this suit by alleging that

petitioners had violated the statutes by engaging in

discrimination and failing to provide access to correctional

programs and activities.” Petitioners responded by filing

a motion to dismiss under Federal Rule of Civil Procedure

12(b). The district court denied the motion and concluded

that the statutes apply to California’s management of its

convicted felons and that the statutes properly abrogated

Eleventh Amendment immunity. Appendix 60a-68a.

Petitioners appealed the district court’s denial of

Eleventh Amendment immunity to the Ninth Circuit,

which affirmed the opinion of the district court. In doing

so, the court of appeals concluded that Congress properly

abrogated the States’ Eleventh Amendment immunity

under the statutes, that California waived its immunity

under the Rehabilitation Act, and that Ex parte Young

provides an exception to the state officials’ immunity

under the Eleventh Amendment. Appendix 5la-55a.

2. Respondents also sued for alleged constitutional violations

under 42 U.S.C. § 1983 (1994). This aspect of the suit is not part of

this appeal.

REASONS FOR GRANTING THE WRIT

These cases present the Court with the timely

opportunity to resolve a clear and growing conflict among

the circuits regarding the applicability of the statutes to

the States’ management of their convicted felons. In

addition, these cases present the Court with the

Opportunity to address important issues regarding the

application of Eleventh Amendment immunity, which the

court of appeals decided in a manner that either conflicts

with relevant decisions of the Court or involves important

questions that have not been, but should be, settled by the

Court. These issues are of exceptional importance, and

provide the Court with the opportunity to delineate the

scope of congressional powers to intrude into the States’

management of their convicted felons.

THERE Is A CLEAR CONFLICT AMONG

THE CIRCUITS REGARDING THE

APPLICABILITY OF THE STATUTES TO

THE STATES’ MANAGEMENT OF THEIR

CONVICTED FELONS.

This petition should be granted to resolve the

clear conflict among the circuits regarding the applicability

of the statutes to the States’ management and

incarceration of their convicted felons. The need for

guidance from the Court on the issue is acute. The Tenth

and the Fourth Circuits have concluded that the statutes

are inapplicable to inmates in state prisons. Amos v.

Maryland Dep’t of Public Safety and Correctional Services,

No. 96-7091, 1997 WL 581652, at *1 (4th Cir. Sept. 22,

1997); White v. Colorado, 82 F.3d 364, 367 (10th Cir.

1996). The Third and Seventh Circuits have decided to

the contrary. Yeskey v. Pennsylvania Dep’t of Corrections,

118 F.3d 168, 172 (3d Cir. 1996); Crawford v. Indiana

Dep’t of Corrections, 115 F.3d 481, 486 (7th Cir. 1997); but

see Bryant v. Madigan, 84 F.3d 246, 248 (7th Cir. 1996).

In Armstrong, the Ninth Circuit aggravated the split by

finding the statutes to be applicable. Appendix 11a (citing

Bonner v. Lewis, 857 F.2d 559 (9th Cir. 1988) and Duffy v.

Riveland, 98 F.3d 447 (9th Cir. 1996)).

The split among the circuits is the result of

disparate applications of prior decisions of this Court.

The Court has made clear that when Congress intends to

alter the balance between the States and the Federal

Government through legislation, it must make its intention

to do so “unmistakably clear in the language of the

statute." Will v. Michigan Dep’t of State Police, 491 US.

58, 65 (1989) (citing Atascadero State Hosp. v. Scanlon, 473

US. 234, 242 (1985)).

Congress should make its intention "clear and

manifest" if it intends to pre-empt the historic

powers of the States. "In traditionally sensitive

areas, such as legislation affecting the federal

balance, the requirement of clear statement

assures that the legislature has in fact faced, and

intended to bring into issue, the critical ma’ters

involved in the judicial decision."

Gregory v. Ashcroft, 501 U.S. 452, 461 (1991) (quoting Will

v. Michigan Dep’t of State Police, 491 U.S. at 65) (internal

citations omitted). "This plain statement rule is nothing

more than an acknowledgement that the States retain

substantial sovereign powers under our constitutional

scheme, powers with which Congress does not readily

interfere." Jd.; see also BFP v. Resolution Trust Corp., 114

S. Ct. 1757, 1764 (1994).

The Fourth Circuit has accepted and properly

applied the plain statement rule. In Amos v. Maryland

Dep’t of Public Safety and Correctional Servs., the Fourth

Circuit squarely concluded that the statutes lack the

— oS

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necessary plain statement to apply to the States’

management of their prisons. 1997 WL 581652, at *6-7.

In doing so, the Fourth Circuit confirmed and elaborated

upon its prior decision in Torcasio v. Murray, 57 F.3d 1340

(4th Cir. 1995):

Torcasio accurately outlined the parameters of

the clear statement rule, stating that Congress

must speak clearly in the statutory text when it

intends to alter the traditional balance of power

between the states and the federal government.

. . . Torcasio also forcefully explained why the

operation of state prisons is an area traditionally

reserved to the states, and persuasively outlined

the sundry ambiguities in the statutory text which

reveal that Congress failed to speak with

unmistakable clarity on the issue of whether [the

statutes] apply to state prisons.

Amos v. Maryland Dep’t of Public Safety and Correctional

Servs. 1997 WL 581652, at *35-36 (citing Torcasio v.

Murray, 57 F.3d at 1346).

The Ninth Circuit’s decision in Armstrong flatly

conflicts with the Fourth Circuit in both analysis and

result. It held that "the plain language of the [statutes],

and our prior interpretation of that language, support

application of the statutes to state prisons." Appendix

11a. The Ninth Circuit turned the plain statement rule on

its head by stating that "[nJothing in the legislative history

of [the statutes] reflects an intent by Congress to exclude

prisons or prisoners from the reach of the statutes." Id. at

13a. The plain statement rule requires the precise

opposite. It requires a clear expression of congressional

intent to include important areas of state sovereignty; it is

not satisfied by a failure to exclude them.

The Fourth Circuit expressly acknowledged and

rejected the Ninth Circuit’s decisions and analysis, and all

but invited this Court to review the issue:

[W]e are (and we believe the Supreme Court

will ultimately find itself) persuaded in no small

measure by the extraordinarily circuitous

statutory analyses which those courts reaching

the contrary conclusion have undertaken and the

considerable extra-interpretive energies that

those courts have been forced to expend in

order to limit the systemic chaos that would

otherwise have followed on their holdings that

these statutes apply to the Nation’s myriad state

prisons.

Amos v. Maryland Dep’t of Public Safety and Correctional

Servs., 1997 WL 581652, at *3-4.

The analysis and result in Armstrong are wrong

and aggravate the growing conflict among the circuits.

This petition should be granted to review this important

conflict and correct the Ninth Circuit’s error.

Il.

THE NINTH CIRCUITS DECISIONS

REGARDING ELEVENTH AMENDMENT

IMMUNITY CONFLICT WITH DECISIONS

OF THE COURT AND INVOLVE

IMPORTANT ISSUES THAT SHOULD BE

SETTLED BY THE COURT.

A. The decision in Clark regarding Congress’s

power to abrogate Eleventh Amendment

immunity.

In Clark, the Ninth Circuit concluded that the

statutes were properly enacted pursuant to the Fourteenth

Amendment. Appendix 53a. Accordingly, the Ninth

Circuit held that the statutes’ abrogation of Eleventh

Amendment immunity was effective. This petition should

be granted because the conclusion that the statutes were

)

properly enacted pursuant to the Fourteenth Amendment

conflicts with decisions of the Court and involves

important issues that have not been, but should be,

settled.

In Seminole Tribe of Florida v. Florida, 116 S. Ct.

1114 (1996), the test for determining whether Congress

properly abrogated a State’s immunity from liability under

the Eleventh Amendment was reiterated. Courts must

determine “first, whether Congress has ‘unequivocally

expresse[d] its intent to abrogate the immunity,’ and

second, whether Congress has acted ‘pursuant to a valid

exercise of power” in abrogating the immunity. Jd. at

1123 (citing Green v. Mansour, 474 U.S. 54, 68 (1985)).

Congress may abrogate Eleventh Amendment immunity

only when it enacts legislation pursuant to the Fourteenth

Amendment. /d. at 1125.

Congress has unequivocally expressed its intent

to abrogate Eleventh Amendment immunity under the

Statutes. See 42 U.S.C. § 12202; 42 U.S.C. § 2000d-

7(a)(1). The statutes, however, were not and could not

have been promulgated under Congress’s Fourteenth

Amendment powers.

A three-prong test is employed to evaluate

whether a statute is properly enacted pursuant to the

Fourteenth Amendment. Katzenbach v. Morgan, 384 US.

641, 651 (1966). The test asks whether the statute "[1]

may be regarded as an enactment to enforce the Equal

Protection Clause, [2] whether it is ‘plainly adopted to that

end’ and [3] whether it is not prohibited by but is

consistent with the ‘letter and spirit of the Constitution.”"

Id. (quoting McCulloch v. Maryland, 17 U.S. 316 (1819)).

A statute may be considered an enactment to enforce the

Equal Protection Clause if it seeks to remedy prior state

action which "constituted an invidious discrimination in

violation of the Equal Protection Clause." Jd. at 656.

"The Equal Protection Clause of the Fourteenth

Amendment . . . forbids a State from arbitrarily

discriminating among different classes of persons." Jd. at

660 (Harlan, J., dissenting).

The Ninth Circuit in Clark ignored this Court’s

prior decisions in the manner by which it concluded that

the statutes are proper Fourteenth Amendment

enactments. In Cleburne v. Cleburne Living Ctr., 473 U.S.

432 (1985), the Court found that the mentally retarded

had not suffered a history of invidious arbitrary

discrimination by the States. Jd. at 442-46. The Court

found that the mentally retarded "have a reduced ability

to cope with and function in the everyday world," and that

States have legitimate reasons for treating them

differently. Jd. at 442. The Court compared the mentally

retarded with the disabled and the aged. Jd. at 445-46. In

describing the history of discrimination regarding the aged,

the opinion stated:

While the treatment of the aged in this Nation

has not been wholly free of discrimination, such

persons, unlike, say, those who have been

discriminated against on the basis of race or

national origin, have not experienced a "history

of purposeful unequal treatment" or been

subjected to unique disabilities on the basis of

stereotyped characteristics not truly indicative of

their abilities.

Id. at 441 (quoting Massachusetts Bd. of Retirement v.

Murgia, 427 U.S. 307, 313 (1976)).

The Ninth Circuit in Clark ignored this Court’s

findings in Cleburne. Although the court of appeals

properly noted that there must be a finding of invidious

discrimination by the States for an enactment to be

properly based on the Fourteenth Amendment, it

concluded that the statutes satisfy this requirement merely

because Congress stated that persons with disabilities have

been subjected to discrimination. Appendix 53a (citing 42

U.S.C. § 12101(a) and 29 U.S.C. § 701(a)(5)). By

a a ee

accepting Congress’s statement over the Court’s findings

in Cleburne, the Ninth Circuit improperly allowed

Congress to define and expand the scope of its powers

under the Fourteenth Amendment in violation of the

separation of powers doctrine and the Court’s decision in

City of Boerne v. Flores, 117 S. Ct. 2157 (1997).

Allowing Congress to legislate under the

Fourteenth Amendment with regard to any group that it

states has been subjected to discrimination would

improperly sanction the exercise of ever-expanding and

unreviewable congressional power over the States. "If we

were to say that an act is valid if it is rationally related to

achieving equal protection of the laws, then § 5 becomes

a license to Congress to pass any sort of legislation

whatsoever." Wilson-Jones v. Caviness, 99 F.3d 203, 209

(6th Cir. 1996).

In addition to ignoring the findings in Cleburne

and the holding of City of Boerne, the Ninth Circuit failed

to provide any substantive analysis of the second and third

prongs of the Katzenbach test -- i.e., whether there is a

congruence between the statutes’ ends and means, and

whether the statutes are consistent with other provisions

of the Constitution. Katzenbach v. Morgan, 384 US. at

651 (citing South Carolina v. Katzenbach, 383 U.S. 301,

334 (1965)).

With regard to the second prong, the Ninth

Circuit failed to describe either any invidious or arbitrary

discrimination by the State, or any correlation between the

broad reach of the statutes and the discrimination sought

to be remedied. "Strong measures appropriate to address

one harm may be an unwarranted response to another,

lesser one." City of Boerne v. Flores, 117 S. Ct. at 2169.

At the district level, courts are Struggling with this

important issue and some have concluded that the

Statutes’ means are incongruent with their ends. E.g.,

Pierce v. King, 918 F. Supp. 932, 938 (D.N.C. 1996);

Nihiser v. Ohio EPA, No. C2-94-1258 (S.D. Ohio Aug. 7,

1997) (scheduled for publication).

With regard to the third prong, the Ninth Circuit

wholly failed to address the conflict between the broad

reach of the statutes and the States’ sovereign interest in

managing their convicted felons. The decision implicitly

decides an important issue that has not been, but should

be, decided by the Court: the scope of Congress’s

Fourteenth Amendment powers under circumstances that

conflict with other constitutional principles. See Oregon v.

Mitchell, 400 U.S. 112, 130 (1970) (opinion of Black, J.)

(Congress exceeds its Fourteenth Amendment powers

when it seeks to invade an area reserved to the States

without enforcing the core promise of the Fourteenth

Amendment prohibiting racial discrimination); see also

EEOC v. Wyoming, 460 U.S. 226, 259-65 (1983) (Burger

C.J., dissenting, joined by Rehnquist, O’Connor, and

Powell, JJ.). The need for guidance from the Court on

these important issues is critical.

B. The decisions regarding the Ex parte Young

exception to Eleventh endment i u

In Armstrong and Clark, the Ninth Circuit

concluded that Ex parte Young, 209 U.S. 123 (1908),

provides an exception to the State officials’ Eleventh

Amendment immunity. Appendix 17a and 55a. This

petition should be granted because this conclusion involves

important issues that have not been, but should be, settled

by the Court.

In Idaho v. Coeur d’Alene Tribe of Idaho, 117 S.

Ct. 2028 (1997), the Court addressed the scope and

application of the Ex parte Young exception to Eleventh

Amendment immunity. In doing so, the Court reversed a

decision of the Ninth Circuit that had allowed the Indian

Tribe to sue the State of Idaho in federal court on the

grounds that the suit sought only declaratory and

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injunctive relief against state officials. Jd. at 2032. A

majority of the Court stated:

To interpret Young to permit a federal court-

action to proceed in every case where

prospective declaratory and injunctive relief is

sought against an officer, named in his individual

capacity, would be to adhere to an empty

formalism and to undermine the principle,

reaffirmed just last Term in Seminole Tribe, that

Eleventh Amendment immunity represents a

real limitation on a federal court’s federal-

question jurisdiction.

Id. at 2034.

Although different theories were discussed by the

Justices, a majority of the Court concluded that allowing

the suit to proceed in federal court would

unconstitutionally intrude upon state sovereignty. Jd. at

2043 (opinion of Kennedy, J., joined by Rehnquist, C.J.)

and 2044 (O’Connor, Scalia, and Thomas, JJ., concurring

in part).

Like Coeur d’Alene, these cases are unlike typical

Ex parte Young actions. First, California’s management of

its convicted felons is an essential attribute of its

sovereignty. Second, if found to be applicable, the

statutes and their implementing regulations would intrude

extensively upon the discretion of prison administrators in

managing inmates and parolees with disabilities. The

scope of Congress’s powers to intrude upon the States’

management of their convicted felons is an important

issue that has not been, but should be, decided by this

Court. Compare Garcia v. San Antonio Metro. Transit

Auth., 469 U.S. 528, 547-56 (1985), with Printz v. United

States, 117 S. Ct. 2365 (1997). If Congress’s power to

enact statutory benefits is extended to the States’

management of their convicted felons, permitting Ex parte

Young actions against state prison officials based on such

statutes usurps an essential area of State sovereignty.

This petition presents the opportunity for the

Court to resolve these important unsettled issues and

determine whether state prison inmates may avoid the

Eleventh Amendment bar and avail themselves of Ex parte

Young in these cases. The Court should take this

opportunity and grant the petition.

iil.

THE QUESTIONS PRESENTED ARE

IMPORTANT.

The questions presented in this petition involve

fundamenial issues of federalism regarding congressional

intrusion into the States’ sovereign interest in managing

their convicted felons. Furthermore, application of the

statutes would be extraordinarily intrusive and have

profound consequences on the administration of the

States’ prisons. Because the need for guidance from the

Court in this area is critical, this petition should be

granted,

Federalism embodies one of the most central

components of the American system of government. The

Constitution created a federal government of limited

powers, and reserved to the States substantial sovereign

authority. Gregory v. Ashcroft, 501 U.S. 452, 457 (1991).

[T]he people of each State compose a State,

having its own government, and endowed with

all the functions essential to separate and

independent existence,’. . . [W]ithout the States

in union, there could be no such political body as

the United States.’ Not only, therefore, can

there be no loss of separate and independent

autonomy to the States, through their union

under the Constitution, but it may be not

unreasonably said that the preservation of the

States, and the maintenance of their

governments, are as much within the design and

care of the Constitution as the preservation of

the Union and the maintenance of the National

government. The Constitution, in all its

provisions, looks to an indestructible Union,

composed of indestructible States."

Id. (quoting Texas v. White, 7 Wall. 700, 725 (1869) and

Lane County v. Oregon, 7 Wall. 71, 76 (1869)).

This federalist structure of joint sovereigns

preserves to the people numerous advantages.

It assures a decentralized government that will

be more sensitive to the diverse needs of a

heterogenous society; it increases opportunity for

citizen involvement in democratic processes; it

allows for more innovation and experimentation

in government; and it makes government more

responsive by. putting the States in competition

for a mobile citizenry.

Id. at 458.

"Perhaps the principal benefit of the federalist

system is a check on abuses of government power." Jd.

"Just as the separation and independence of the

coordinate branches of the Federal Government serves to

prevent the accumulation of excessive power in any one

branch, a healthy balance of power between the States

and the Federal Government will reduce the risk of

tyranny and abuse from either front." Jd. "In the tension

between federal and state power lies the promise of

liberty." Id. at 459.

These principles have particular force when the

Federal Government attempts to intrude into areas that

are essential to state sovereignty. One of the functions

essential to a separate and independent state government

is the management of felons convicted under state law.

This function is part of the States’ administration of

criminal justice, an area of government traditionally

reserved to the States. "Our national government is one

of delegated powers only. Under our federal system the

administration of criminal justice rests with the States

except as Congress, acting within the scope of those

delegated powers, has created offenses against the United

States.” Screws v. United States, 325 U.S. 91, 109 (1944).

Criminalizing behavior and enforcing penal sanctions are

primary functions of state government, and are part of the

essence of state sovereignty. "It is difficult to imagine an

activity in which a State has a stronger interest, or one

that is more intricately bound up with state laws,

regulations, and procedures, than the administration of its

prisons." Preiser v. Rodriguez, 411 U.S. 475, 491-92 (1973).

The Court has frequently directed the federal

judiciary to respect the States’ interest in managing their

convicted felons by requiring federal courts to extend

substantial deference to the decisions of state prison

officials when applying constitutional mandates. See, e.g.,

Lewis v. Casey, 116 S. Ct. 2174, 2185 (1996) (rejecting a

judicial remedy that "failed to give adequate consideration

to the views of state prison authorities"); Sandin v. Conner,

115 S. Ct. 2293, 2299 (1995) (explaining that federal

district courts must "afford appropriate deference and

flexibility to state officials trying to manage a volatile

environment"); Turner v. Safley, 482 U.S. 78, 84-85 (1987)

(holding that “where state penal institutions are involved,

federal courts have a further reason for deference to the

appropriate authorities"). The Court has not, however,

defined the scope of Congress’s power when convicted

felons seek to enforce against the States statutory or

regulatory rights created for the general public.

Furthermore, federal court enforcement of

congressional mandates has serious repercussions on the

administration of the States’ prisons. The Fourth Circuit

has "recognized the profound consequences that would

result if the statutes were applied to state prisons:

‘[A]pplication of [the statutes} would have serious

implications for the management of state prisons, in

matters ranging from cell construction and modification,

to inmate assignment, to scheduling, to security

problems.” Amos v. Maryland Dep’t of Public Safety and

Correctional Servs., 1997 WL 581652, at *13 (citing

Torcasio v. Murray, 57 F.3d at 1346).

These profound consequences are revealed in

the district court’s remedial orders in Armstrong. Among

other intrusions, the district court has strictly applied

federal regulations and has indicated disapproval of

California’s plans to geographically disperse inmates with

disabilities and to provide for accessibility in new prison

construction in a manner and degree deemed appropriate

by prison administrators. Appendix 89a-113a. These

intrusions impose severe disruptions on California’s

management of its convicted felons, and will require the

expenditure of millions of dollars of finite state funds at

the expense of other state services.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Dated: October 17, 1997.

Respectfully submitted,