Opposition Brief — L. E. S. Properties v. Westin Hotel Co.

Supreme Court brief1995

Ask Donna

What actually matters in this document.

Text

No. 97-860

In The

Supreme Court of the United States

October Term, 1997

OWNER-OPERATOR INDEPENDENT DRIVERS

ASSOCIATION, INC., a corporation, MARK M. NYE, an

individual, KENNETH D. MCFADDEN, an individual,

Petitioners,

vs.

KEITH BISSELL, Member of the Tennessee Public Service

Commission, and THE TENNESSEE PUBLIC SERVICE

COMMISSION,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

BRIEF IN OPPOSITION FOR RESPONDENT

KEITH BISSELL

J. STANLEY ROGERS

Counsel of Record

CHRISTINA HENLEY DUNCAN

ROGERS & DUNCAN

Attorneys for the Respondent

Keith Bissell

100 North Spring Street

Manchester, Tennessee 37355

(931) 728-0820

144296 (800) 274-3321 * (800) 359-6859

A DIVISION OF COUNSEL PRESS

PARTIES TO PROCEEDINGS

The petition accurately lists the parties to the proceedings.

Respondent, Keith Bissell, does not have a parent

corporation or a nonwholly owned subsidiary that would be

required to be listed pursuant to Supreme Court Rule 29.6.

TABLE OF CONTENTS

Page

| Pe ee ee i |

ee Oe SO io iva i 8 i ca aeenweeeeedeeaeeee ii

po eee TS re re oer ii

EER GT RINE hb. 66.0 46 séinee tutes l |

Reasons for Denying Ge Writ |... 5. 5 os. once cecess 5 |

I. The Sixth Circuit Correctly Stated And Applied

The Warrantless Administrative Search Exception

To The Fourth Amendment To The Facts Of This

Ee oe ee Pe ee Be 4

Il. The Sixth Circuit Correctly Applied The Eleventh

Amendment Immunity To The Facts Of This Case

And There Is No Need For Review. ......... 8

RIGID sos sass ddnncdeneuce Ge naeen eee nwees es 10

TABLE OF CITATIONS

Cases Cited:

Donovan v. Dewey, 452 U.S. 594, 101 S. Ct. 2534, 69

ee Fg re re ae gore he 2,7

Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed.

FOE GPE 6b 660 svn db ondneeeunetanateeeeanens 8,9

lil

Contents

Page

New York v. Burger, 482 U.S. 691, 107 S. Ct. 2636, 96

OY & ¢ § . >: Gere se ee ee |

OOIDA v. Bissell, Slip Opinion ................... 8,9

Pennhurst St. School and Hosp. v. Halderman, 465 U.S.

89, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984) ...... 9

United States v. Dominguez-Prieto, 923 F.2d 464 (6th

Cir. 1991), cert. denied, __ U.S. __, 111 S. Ct. 2063,

BO Mee We Oe Ne AUSPED on ccc ccc cc cccccce ya ae

Will v. Michigan Dep’t. of State Police, 491 U.S. 58, 109

S. Ct. 2304, 105 L. Ed. 2d 45 (1989) ........... 9

Statute Cited:

Tenn. Code Ann., Section 65-15-113(a) ............ 6

United States Constitution Cited:

bk bys cowie von he score 1, 4, 8

a 8, 9, 10

Rule Cited:

ee 4

Other Authority Cited:

SP CPs WOU FON-F9P on ccc cccccccccces 6

]

STATEMENT OF THE CASE

This Petition seeks a review of the Sixth Circuit’s Opinion

which affirmed the District Court’s holding that the warrantless

safety inspections of commercial motor vehicles conducted

by the Tennessee Public Service Commission (PSC) are allowed

by the administrative inspection doctrine as a matter of law.

The Sixth Circuit affirmed the District Court’s grant of summary

judgment in favor of respondents on petitioners’ Fourth

Amendment claims and vacated the District Court’s injunction

and remanded the case on petitioners’ Commerce Clause and

Equal Protection claims. As detailed below, there is no cause

for this Court’s review of the Fourth Amendment issue as

asserted by petitioners.

The Petition in this case contains some misstatements of

fact which need to be addressed and some additional

information is needed to clarify the procedural history of the

case.

Petitioners incorrectly imply that the District Court and

the Sixth Circuit did not consider the three criteria of the Burger

case prior to ruling that the PSC inspection procedure fell within

the warrantless administrative inspection exception to the

Fourth Amendment. Extensive briefs with supporting

documents were filed by each of the respondents in support of

the motion for summary judgment based on the warrantless

inspection doctrine and in response to petitioners’ briefs on the

Fourth Amendment issue. (R. 140-146, 148, 153-158, 161-

164). Respondents provided the District Court with a detailed

analysis of the Burger criteria on which he could base his

decision. Likewise, respondents did a thorough analysis of how

the Burger criteria applied to this inspection procedure in the

briefs to the Sixth Circuit Court of Appeals. In affirming the

grant of summary judgment, the Sixth Circuit cited the cases of

Donovan v. Dewey, 452 U.S. 594, 101 S. Ct. 2534, 69 L. Ed.

2d 262 (1981) and United States v. Dominguez-Prieto, 923

F.2d 464 (6th Cir. 1991), cert. denied, ___ U.S. __, 111 S. Ct.

2063, 114 L. Ed. 2d 468 (1991). In Dominguez-Prieto, the

Sixth Circuit outlined a lengthy analysis of how the PSC

regulatory scheme and inspection process met each of the

Burger criteria when discussing the constitutionality of the

PSC’s inspection of cargo in a locked trailer. The Sixth Circuit

relied on this case in its decision.

The Petition misstates:

[t]he State of Tennessee has enacted no statutes or

regulations that define the scope of the

administrative inspections of trucks or which limit

the scope of the inspecting officer’s discretion.

(Petition p. 7).

As discussed below, the administrative inspection is based

upon the Tennessee statute authorizing the inspection of

commercial motor vehicles and the regulations promulgated

by the PSC pursuant to that authority. In addition, the PSC has

adopted the Federal Motor Carrier Safety Regulations

(FMCSR). The PSC has in place training programs and written

procedures as to.how the officer is to conduct an inspection

and whether he is to perform a Level I, II, or III inspection.

Only the Level I inspection includes the inspection of the truck

cab. PSC officers do not have unbridled discretion as suggested

by the petitioners. The state and federal regulations are enforced

according to specific written policies and procedures of the

PSC and the officer training materials and guidelines.

Another misstatement by the petitioners is the following:

The officers entered not only the sleeping

compartment of the named plaintiff’s vehicle; but,

without probable cause, or a warrant, inspected

such personal non-safety related items as

mayonnaise, soda cans, and lunchmeat. (R. 186 Att.

D; R. 189).

(Petition p. 7, n.4).

Respondent, Keith Bissell, and the officers who performed

the inspection of the named plaintiff’s vehicle vehemently deny

the facts of the inspection as set forth by the named plaintiff,

including the denial of the fact that the officer inspected any

personal non-safety related items. These factual discrepancies

did not have to be resolved for the purposes of the summary

judgment and no court has found the facts to be as set forth in

the Petition.

The Petition misrepresents the character of the evidence

presented at trial on the Commerce Clause and Equal Protection

claims. The evidence did not establish a policy of political

corruption or inappropriate use of political influence, campaign

contributions, and personal relationships, to the detriment of

out of state motor carriers as petitioners maintain. The District

Court dismissed all defendants except respondent, Keith Bissell.

The Sixth Circuit remanded the case for the District Court to

determine if any further injunction should be issued. The court

held as follows:

. .. Indeed, the only findings of fact which directly

implicate Bissell are that Bissell requested officers

to sell fund-raising tickets, and that he told officers

to stop inspecting trucks which were leaving the

state and instead to concentrate on inbound traffic.

. .. However, upon remand the district court should

consider whether that specific conduct warrants

injunctive relief against him, and indeed the

propriety of any such relief since Bissell was just

one of three commissioners, is no longer a

commissioner, and the Commission itself was

abolished to be replaced by an agency whose

directors are no longer elected.

Upon remand, the District Court did not issue any further

injunction.

REASONS FOR DENYING THE WRIT

THE SIXTH CIRCUIT CORRECTLY STATED AND

APPLIED THE WARRANTLESS ADMINISTRATIVE

SEARCH EXCEPTION TO THE FOURTH AMENDMENT

TO THE FACTS OF THIS CASE.

This case does not warrant review by the Supreme Court.

Petitioners maintain that the Sixth Circuit Opinion expanded

the warrantless administrative search exception. Petitioners

argue that the decision of the Sixth Circuit weakens the

protections mandated by New York v. Burger, 482 U.S. 691,

107 S. Ct. 2636, 96 L. Ed. 2d 601 (1987). Respondents would

show unto the Court that the Sixth Circuit correctly stated and

applied the well settled law. None of the reasons listed in

Supreme Court Rule 10 are present in this case. In addition,

petitioners have not set forth any other compelling reason for

a review to be granted.

The Supreme Court has held that administrative warrantless

inspections of commercial property used in “pervasively

regulated” industries are reasonable and constitutional, if the

following three criteria are met:

1. A “substantial” government interest that

informs the regulatory scheme pursuant to which

the inspection is made,

2. The warrantless inspections must be

necessary to further the regulatory scheme, and

3. The statute’s inspection program must

provide a constitutionally adequate substitute for a

warrant in terms of the certainty and regularity of

its application.

New York v. Burger, 96 L. Ed. 2d at 614.

The Sixth Circuit Opinion which held that commercial

trucking is a pervasively regulated industry is consistent with

the decisions of other courts. See, e.g. United States v.

Dominguez-Prieto, 923 F.2d 464 (6th Cir. 1991), cert. denied,

—. U.S. _, 111 S. Ct. 2063, 114 L. Ed. 2d 468 (1991). The

privacy expectations of owners and operators of commercial

motor vehicles are reduced, because the motor carrier industry

is pervasively regulated by both the federal and state

governments.

The warrantless safety inspections conducted by PSC

officers comply with the three criteria set forth in Burger. The

first requirement of a government interest that informs the

regulatory scheme pursuant to which the inspection is made is

present. The State of Tennessee, particularly the PSC, has a

“substantial” interest in governing and controlling the safety

operations and safe use of equipment along the public highways.

Tenn. Code Ann., Section 65-15-113(a). The safe operation of

large commercial motor vehicles is critical to the welfare of the

motoring public and commercial motor vehicle drivers.

Dominguez-Prieto, 923 F.2d at 468.

The warrantless safety inspection of the interior of the truck

cab is an integral part of the safety inspection and is necessary

to further the regulatory scheme; and therefore, the second

Burger criteria is met. The warrantless inspections are critical

to the regulatory scheme; because if the regulatory authority

is to be successful in regulating and controlling the safe

operations and safe use of equipment along the public

highways, the officers must be able to conduct frequent safety

inspections on the motor carrier equipment, including truck

cab interiors and drivers to insure that these motor vehicles

and drivers are in compliance with the state and federal

regulations.

The third criteria that the regulatory scheme provide a

constitutionally adequate substitute for a warrant is met. The

legislature enacted Tenn. Code Ann., Section 65-15-113(b)

which authorizes the PSC to inspect motor vehicles for safety.

In furtherance of its goal of safety and pursuant to its authority,

the PSC has promulgated detailed regulations. Tennessee has

adopted the Federal Motor Carrier Safety Regulations

(FMCSR), 49 C.F.R. Parts 301-399 pursuant to a federal grant

program which encourages the states to accept primary

responsibility for truck inspections. The three criteria outlined

in Burger are met and there is no need for review.

Petitioners argue that the decision shifts the burden of

determining when, where, and how an administrative

inspection may be conducted from the legislative and executive

branches of governments to the courts. (Petition, p. 8).

This is clearly not the case. The PSC inspections are

governed by detailed regulations promulgated by the PSC,

including the FMCSR. The FMCSR dealing with the safety

requirements are very specific and detailed. PSC officers

receive extensive training in every aspect of the inspection

procedure. The legislative and executive branches, rather than

the courts, have put in place this regulatory scheme, including

the warrantless administrative inspection. There is no

inappropriate shift in responsibility to the judicial branch as

argued by petitioners.

The Sixth Circuit Opinion is consistent with the Opinion

of the Supreme Court in Burger and Donovan v. Dewey, 452

U.S. 594, 101 S. Ct. 2534, 69 L. Ed. 2d 262 (1981) and a

Sixth Circuit decision which held that a PSC warrantless

administrative inspection conducted under legally

indistinguishable facts was constitutional. United States v.

Dominguez-Prieto, 923 F.2d 464 (6th Cir. 1991), cert. denied.

__ U.S. __, 111 S. Ct. 2063, 114 L. Ed. 2d 468 (1991).

Respondent maintains that the Sixth Circuit correctly applied

the warrantless administrative search exception to the facts of

this case.

However, a review of this case is not warranted, even if

the Sixth Circuit failed to properly apply the three pronged

test as petitioners argue. Supreme Court Rule 10 states in

pertinent part “A petition for writ of certiorari is rarely granted

when the asserted error consists of erroneous factual findings

or the misapplication of a properly stated rule of law.”

Respondent would show unto the Court that the writ should be

denied.

Il.

THE SIXTH CIRCUIT CORRECTLY APPLIED THE

ELEVENTH AMENDMENT IMMUNITY TO THE FACTS

OF THIS CASE AND THERE IS NO NEED FOR REVIEW.

Petitioners maintain that there is a need for review “to

correct a major lack of uniformity among the Federal Circuits”.

(Petition p. 9). Petitioners do not cite any conflicting Opinions

to support any alleged lack of uniformity. Petitioners also

maintain that there is a need for review, because the Sixth Circuit

did not recognize the doctrine set forth in Ex parte Young, 209

U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908). A close reading

of the Sixth Circuit Opinion establishes that the court did not

fail to grasp the distinction of the application of the Eleventh

Amendment between suits for monetary relief and suits for

injunctive relief as argued by petitioners. There is no compelling

reason to review this case.

In affirming the District Court’s grant of summary judgment

on the Fourth Amendment issue in favor of the Commission,

the Sixth Circuit relied on Eleventh Amendment immunity. The

court did not hold that respondent, Bissell, was entitled to

Eleventh Amendment immunity, but rather based the affirmance

as to Bissell on the warrantless administrative search exception.

OOIDA v. Bissell, Slip Opinion p. 7.

The Sixth Circuit also recognized the distinction in its

ruling on the Equal Protection and Commerce Clause claims

when it held in relevant part as follows:

... Finally, Bissell is not entitled to either absolute

or qualified immunity for his actions, because

“immunity only precludes claims of monetary

damages against officials in their individual

capacities, and not claims for injunctive or

declaratory relief” Collyer v. Darling, 98 F.3d 211,

222 (6th Cir. 1996) (citing Cagle v. Gilley, 957 F.2d

1347 (6th Cir. 1992), cert. denied, 117 S. Ct. 2439

(1997).

We also conclude that the district court properly

dismissed plaintiffs’ Equal Protection and

Commerce Clause claims against the Commission

because the Eleventh Amendment bars a plaintiff

from bringing a claim against a state agency in

federal court unless the state waived its immunity.

See, e.g., Welch v. Texas Dep’t of Highways and

Public Transp., 483 U.S. 468, 472-73, 97 L. Ed.

2d 389, 107 S. Ct. 2941 (1987).

OOIDA v. Bissell, Slip Op. at 7 (emphasis added).

It is well settled law that the Eleventh Amendment bars

federal suits against states, which includes state agencies and

other “arms of the State”. Will v. Michigan Dep’t. of State Police,

491 U.S. 58, 109 S. Ct. 2304, 105 L. Ed. 2d 45, 57 (1989).

The bar “applies regardless of the nature of the relief sought”

against the State. Pennhurst St. School and Hosp. v. Halderman,

465 U.S. 89, 104 S. Ct. 900, 79 L. Ed. 2d 67, 78 (1984).

Therefore, the Sixth Circuit ruling which affirmed the dismissal

of the Commission, an agency of the state, on Eleventh

Amendment grounds is appropriate.

Although the Sixth Circuit did not cite Ex parte Young,

209 U.S. 123, 28 S. Ct. 441, 52 L.Ed 714 (1908), it applied

the exception set forth in that case. In Ex parte Young, the

Court held that a suit against a state official seeking only

injunctive relief and challenging the constitutionality of the

state official’s action is not one against the state and therefore,

not barred by Eleventh Amendment immunity. The Sixth

Circuit held that respondent, Bissell, was not entitled to

Eleventh Amendment immunity in this case which sought

injunctive and declaratory relief based upon allegations that

his action violated the petitioners’ constitutional rights.

This unpublished decision correctly recognizes and applies

the distinction and does not cause confusion among the lower

courts.

CONCLUSION

Based on the foregoing, respondent, Bissell, respectfully

requests the Court to deny the writ of certiorari.

Respectfully submitted,