# Opposition Brief — DeBose v. Nebraska > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0497%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2001 - **Citation:** 531 U.S. 1190 ## Text 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. ¢ 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). ¢ 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. ¢ 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0497%3A5. Public record. Not legal advice.