Opposition Brief — DeBose v. Nebraska

Supreme Court, U.g

oe, rst 2s

No. 99-940 JAN ong

In The ba Oe

Supreme Court of the United States

ST

DENISE DEBOSE AND JAMES McCULLOUGH,

Petitioners,

AND

UNITED STATES OF AMERICA,

Vi

STATE OF NEBRASKA, et al.,

Respondent.

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On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

*

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

¢

Don STENBERG

Attorney General

MELANIE J. WHITTAMORE-MANTZIOS

Counsel of Record

Assistant Attorney General

2115 State Capitol

Lincoln, NE 68509

(402) 471-2682

Attorneys for Respondent

State of Nebraska

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

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED FOR REVIEW

Whether Title I of the Americans with Disabilities Act

of 1990, 42 U.S.C. §§ 12111-12117, is a proper exercise of

congressional power to abrogate the State’s Eleventh

Amendment immunity from suit by individuals.

ii

LIST OF PARTIES

Denise DeBose and James McCullough, Petitioners

The United States, Intervenor

VS.

State of Nebraska, Respondent

OPINION BELOW

The opinion of the Eighth Circuit Court of Appeals at

issue is reported at 186 F.3d 1087 (8th Cir. 1999).

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INTRODUCTION

Respondent, the State of Nebraska, submits this Brief

in Opposition to the Petition for Writ of Certiorari. The

Petition asserts that the Eighth Circuit’s decision raises a

question for this Court’s review in terms of whether Title

I of the Americans with Disabilities Act of 1990 (ADA), 42

U.S.C. § 12111 through 12117, constitutes a proper exer-

cise of Congress’s Section 5 of the Fourteenth Amend-

ment power to abrogate the State’s Eleventh Amendment

immunity from suit by individuals.

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ARGUMENT

The Respondent would like to clear up factually

incorrect statements made in the Petition for Certiorari.

Number one, the Respondent did raise its Eleventh

Amendment immunity from suit in its answers in both

cases in district court. Thus, it is incorrect for the Peti-

tioners to claim that the sovereign immunity defense was

not raised before the district court. Secondly, the Respon-

dent stipulated at trial that the Petitioners were

depressed in 1995, not that the Petitioners were “clini-

cally depressed.”

The Respondent does agree with the position taken

by the United States on this Petition for Certiorari. The

present conflict among the United States courts of

appeals on the question of whether Congress effectively

abrogated the States’ sovereign immunity from suit when

it enacted the ADA might ultimately merit the exercise of

the Court’s certiorari jurisdiction in this or another case

pursuant to Sup. Ct. R. 10(a). The United States correctly

points out in their brief that the Court’s resolution of two

pending cases, United States v. Florida Board of Regents,

No. 98-796, and Kimel v. Florida Board of Regents, No.

98-791, may cast significant light on Congress’s exercise

of its powers under Section 5 of the Fourteenth Amend-

ment of the United States Constitution. (See Brief for the

United States at pp. 11-12). Oral argument was heard on

October 13, 1999, in the Florida Board of Regents cases. The

Florida Board of Regents cases relate to the Age Discrimina-

tion in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621

through 634, and present the questions of whether the

ADEA contains a clear expression of Congress’s intent to

abrogate Eleventh Amendment immunity, and whether

the ADEA reflects a proper exercise of Congress’s power

under Section 5 of the Fourteenth Amendment. The

Respondent agrees that the resolution of the ADEA cases

may shed light on the resolution of whether the ADA

constitutes a proper exercise of Congress’s Section 5 of

the Fourteenth Amendment power to abrogate Eleventh

Amendment immunity.

We join the United States in requesting that the Court

hold a decision in abeyance on whether or not to grant

certiorari in this case until the Court has reached a deci-

sion in the Florida Board of Regents cases, Nos. 98-796 and

98-791. The Respondent would also request an oppor-

tunity to submit a supplemental filing within fourteen

days of this Court’s rulings in the Florida Board of Regents

cases containing the Respondent’s views in light of those

rulings, as to the appropriate disposition in this case.

Additionally, Alsbrook v. City of Maumelle, 184 F.3d

999 (8th Cir. 1999), en banc, petition for cert. pending, No.

99-423, is also before the Court for consideration. DeBose

v. State, 186 F.3d 1087 (8th Cir. 1999) is based upon the

rationale that the Eighth Circuit Court of Appeals used in

Alsbrook v. City of Maumelle, 184 F.3d 999 (8th Cir. 1999), en

banc, petition for cert. pending, No. 99-423. In Alsbrook the

Eighth Circuit Court of Appeals determined that Con-

gress lacked the authority under Section 5 of the Four-

teenth Amendment to abrogate Eleventh Amendment

Immunity in Title II of the ADA. The Eighth Circuit Court

of Appeals panel extended their ruling in Alsbrook to Title

I of the ADA in DeBose v. State. Therefore, DeBose v. State

could be affected by the Court’s resolution of the Alsbrook

case as well.

The Respondent disputes that the decision in DeBose

v. State, 186 F.3d 1087 (8th Cir. 1999), is in direct conflict

with Olmstead v. L.C. ex rel. Zimring, __ U.S. __, 119 S.Ct.

2176 (1999). The Court at no time addressed the Eleventh

Amendment in Olmstead. In fact, it is noted in the major-

ity opinion that the case, as it came to the Court, pre-

sented no constitutional question. Olmstead, 119 S.Ct. at

2181. The holding in Olmstead is as follows:

[W]e conclude that, under Title II of the ADA,

States are required to provide community-based

treatment for persons with mental disabilities

when the State’s treatment professionals deter-

mine that such placement is appropriate, the

affected persons do not oppose such treatment,

and the placement can be reasonably accommo-

dated, taking into account the resources avail-

able to the State and the needs of others with

mental disabilities.

Olmstead, 119 S.Ct. at 2190. Olmstead is not in conflict with

DeBose, as Olmstead does not address the Eleventh

Amendment. There is no reason to grant the petition for

certiorari under Sup. Ct. R. 10(c).

CONCLUSION

The Respondent joins the United States in suggesting

that the petition for certiorari should be held pending this

Court’s decision in United States v. Florida Board of

Regents, No. 98-796, and Kimel v. Florida Board of Regents,

No. 98-791.

Respectfuily submitted,

State of Nebraska, Respondent

Don STENBERG

Attorney General

Meanie J. WHITTAMORE-MANTZIOS

Assistant Attorney General

2115 State Capitol

Lincoln, NE 68509-8920

Tel: (402) 471-2682

Attorneys for Respondent

December 1999