# Opposition Briefm — Trust v. Perry (No. 06-36)

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1147%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Briefm
- **Published:** January 1, 2006

## Text

FILED

f é } AUG 2 = 2006
— OFFICE OF THE CLERK
SUPREME COURT, U.S.
No. 06-36
IN THE

Supreme Court of the Gnited States

PUBLIC AGENCY COMPENSATION TRUST (PACT),

Petitioner,
v.

COLIN PERRY ET AL.,
Respondents.

On Petition for a Writ of Certiorari
to the Supreme Court of Nevada.

BRIEF IN OPPOSITION
BARBARA GRUENEWALD ROBERT S. PECK* .
ANDERSON & GRUENEWALD CENTER FOR CONSTITUTIONAL
439 MARSH AVENUE LITIGATION, P.C.
Reno, NV 89509 1050 31st Street, N.W.
(775) 322-3366 Washington, DC 20007

(202) 944-2874

*Counsel of Record

QUESTION PRESENTED

Whether the conclusive presumption in NRS
617.457, applicable only to state agencies and political
subdivisions employing police or firefighters, violates the
Due Process Clause of the Fourteenth Amendment.

if

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REASONS FOR DENYING THE PETITION................... 3

I. PETITIONER HAS NOT ASSERTED A
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TABLE OF AUTHORITIES

CASES

City and County of San Francisco v. Workers’
Compensation Appeals Bd., 583 P.2d 151 (Cal.
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"Fidelity & Cas. Co. of N.Y. v. Masters, 335 So.2d
722 (La. Ct. App. 2d Cir. 1976), writ denied,
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Flint River Mills v. Henry, 236 S.E.2d 583 (Ga.
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Great American Ins. Co. v. United States, 575 F.2d
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Gregory v. Ashcroft, 501 U.S. 452 (1991) ........... cc eecceeeeeeees

Grover v. Town of Manchester, 357 A.2d 922,
appeal dismissed, 423 U.S. 805 (1975).............0. ceeeeeee

Joslin Mfg. Co. v. City of Providence, 262 U.S. 668

McDonald v. Chrysler Corp., 242 N.W.2d 810
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New York v. United States, 505 U.S. 144 (1992).............5

Pullman Co. v. State of Kansas ex rel. Coleman,
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Stanley v. Illinois, 405 U.S. 645 (1972) .......cccceeesesecceeeeeees
Sweazey v. New Hampshire, 354 U.S. 234 (1957).............

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Turner v. Dep’t of Employment Sec., 423 U.S. 44

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U.S. Dep't of Agric. v. Murry, 413 U.S. 508 (1978)........... 4
Usery v. Turner Elkhorn Mining Co., 428 U.S. 1

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Vlandis v. Kline, 412 U.S. 441 (1978) oo... eeeeeeseeeeeeees 4
Williams v. Mayor and City Council of Baltimore,

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Nevada Occupational Disease Act.......2.....ccccceseeesessseeeeesees 8
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OTHER AUTHORITIES

Larson, The “Heart Cases” in Workmen's
Compensation: An Analysis and Suggested

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RULES
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BRIEF FOR RESPONDENT IN OPPOSITION

Respondent Colin Perry respectfully requests that
this Court deny the petition for writ of certiorari that
seeks review of the Nevada Supreme Court’s decision in
this case.

STATEMENT OF THE CASE

Petitioner Public Agency Compensation Trust
(PACT) has provided workers compensation insurance to
the Elko County Sheriffs Department since the mid-
1990s. Respondent Perry served as a Deputy Sheriff for
Elko County from 1986 to 2000. In 1992, he suffered an
injury to his heart and the workers compensation insurer
for the Elko County Sheriffs Department at that time
- accepted his claim. In 1998, as a result of a new heart
injury, Perry unsuccessfully attempted to reopen his prior
claim. He then made a new claim with the department’s
new insurer, PACT, which PACT rejected.

Under the pertinent Nevada statute, NRS
617.457, on the books since 1989, Perry’s coronary artery
disease is conclusively deemed to be occupationally
related as a result of his continuous service as a police
officer over a period of more than five years. Even so,
Nevada law permits an employer to challenge eligibility
by showing that the employee failed “to correct
predisposing conditions which lead to heart disease when
so ordered in writing by the examining physician
subsequent to the annual examination.” NRS 617.457(6).
Such predisposing conditions can include diabetes,
overweight, smoking, high blood pressure, and high
cholesterol.

After receiving extensive evidence on the medical
issues from both parties, see Pet. at 5a-7a, a hearing
officer of the Nevada Department of Administration
found that PACT’s denial of Perry’s claim to be erroneous

2

and held that Perry’s claim was valid. PACT
unsuccessfully appealed that decision administratively
and then to a state district court, challenging the
conclusive presumption’s constitutionality at the same
time. The district court’s decision was affirmed by the
Nevada Supreme Court.

In its Petition for Certiorari, PACT provides no
basis for further review by this Court. It asserts a single
conflict between the Nevada decision this year and a 1971
Connecticut Supreme Court decision that has been
superceded by statute, while failing to disclose a
California Supreme Court decision that reached the same
conclusion as the court below. Respondent respectfully
submits that the Connecticut court’s decision is doubly
flawed in a manner that cancels out any conflict. First,
the decision erred in predicting that this Court would
liberalize its standing jurisprudence and allow a political
subdivision to make a due-process claim against the State
that created it, thereby reaching a question no other
court has entertained. In fact, in the 35 years since the
Connecticut court’s prediction, this Court has neither
relaxed its starding requirements nor accorded political
subdivisions due-process rights against its sovereign.
Second, the Connecticut court permitted the legislature to
create special compensation requirements as a substitute
for the conclusive presumption it found unconstitutional,
creating a distinction without a difference. If the
decisions in Nevada and Connecticut, 35 years apart, are
in actual conflict, a dubious claim at best, ic hardly cries
out for this Court’s attention.

Alternatively, PACT erroneously asserts that the
Nevada Supreme Court has failed to apply the correct
applicable law of this Court. Even if correct, which
Respondent disputes, Rule 10 of this Court’s rules makes
plain that petitions based on claims of misapplication of
the law are “rarely granted.” Sup. Ct. R. 10. This
petition should be denied.

3

PACT further asserts that the question presented
will have considerable public policy impact in Nevada,
Pet. at 13-14, but such an assertion provides no basis
upon which to invoke this Court’s jurisdiction. Its public
policy claim is entirely premised on a newspaper article
and actuarial studies making representations about
expenses associated with this statute that were not part
of the record at the factfinding stage of this case and only -
submitted, improperly, to the Nevada Supreme Court
with Petitioner’s unsuccessful motion for reconsideration
en banc. It was not considered by the court below. It
should not be first reviewed by this Court - or by any
court, for that matter, because whatever expense this
program entails is a matter of Nevada legislative
cognizance and not Federal constitutional dispute.

Finally, it should be noted that PACT asserts a
due-process right that cannot be accorded to its insured.
As a political subdivision of the State, neither Elko
County nor its Sheriff's Office may assert a due-process
claim against the sovereign that created it. Moreover,
PACT was fully aware of the challenged statute when it
wrote its insured’s policy and cannot claim a lack of
notice for the liabilities it was insuring against.

REASONS FOR DENYING THE PETITION

I, PETITIONER HAS NOT ASSERTED A
CONFLICT THAT REQUIRES THIS COURT’S
ATTENTION

PACT focuses its Petition primarily on an
assertion that the Nevada Supreme Court’s decision
conflicts with this Court’s precedents that have
invalidated other conclusive presumptions on due-process
grounds. Pet. at 6-9. The cases cited, however, are
inapplicable to this matter and provide no basis for this
Court’s review.

4

At bottom, the Nevada Supreme Court’s
constitutional analysis was appropriate. The Court found
that Petitioner did not carry its burden to demonstrate
that this 37-year-old law denies due-process. Pet. at 3c-
Ac.

Unlike the successful individual plaintiffs in the
cases cited by Petitioner,! all of which were reviewed in a
similar challenge by the California Supreme Court in
1978 and held to be inapplicable to this issue,? the
Nevada law only adversely affects cities and counties,

! Petitioner relies on Viandis v. Kline, 412 U.S. 441
(1973)(individual plaintiff instituted due process challenge to
conclusive presumption about nonresidency for purposes of
becoming eligible for in-state tuition); Cleveland Bd. of Educ. v.
LaFleur, 414 U.S. 632 (1973)(individual plaintiffs mounted due
process challenge to conclusive presumption that female
teachers who were five months pregnant could not continue in
job and must terminate employment); Stanley v. Illinois, 405
U.S. 645 (1972)(individual plaintiff challenged conclusive
presumption that unmarried fathers are not suitable parents);
U.S. Dep’t of Agric. v. Murry, 413 U.S. 508 (1973)(class of
individuals raised due process challenge to conclusive
presumption about relationship of tax dependency and
eligibility for food stamps); Turner v. Dep't of Employment Sec.,
423 U.S. 44 (1975) (individual plaintiff instituted due process
challenge to statute making pregnant woman ineligible for
unemployment benefits for period extending from 12 weeks
before expected date of childbirth and until a date six weeks
after childbirth).

2 Precisely the same U.S. Supreme Court caselaw was
cited to the California Supreme Court in support of an identical
argument against a similar workers compensation law
containing a conclusive presumption for the benefit of police
officers. The California Court found the cases easily
distinguishable. City and County of San Francisco v. Workers’
Compensation Appeals Bd., 583 P.2d 151, 160 (Cal. 1978).

5

rather than individuals. It imposes upon them the
burden of providing workers compensation benefits to
eligible firefighters and police officers who contract heart
disease. This Court has found no constitutional flaw in
similar legislation, finding only a rational connection is
necessary. Usery v. Turner Elkhorn Mining Co., 428 U.S.
1, 16 (1976) (legislation may “readjust rights and
burdens” and “impose a new duty or liability based on
past acts” consistent with the Constitution). It is well
established that counties and their departments, such as
Respondent Perry’s former employer, the Elko County
Sheriffs Department, as political subdivisions of the
State, do not have due-process rights under the
Fourteenth Amendment that may be asserted against the
state that created them. Williams v. Mayor and City
Council of Baltimore, 289 U.S. 36, 40 (1933)(“A municipal
corporation, created by the state for the better ordering of
government, has no privileges or immunities under th®
Federal Constitution which it may invoke in opposition to
the will of its creator.”). See also Joslin M/g. Co. v. City
of Providence, 262 U.S. 668, 674 (1923)(citations omitted)
(“political subdivisions of the state .. . are subject to the
will of the [State] Legislature and may be compelled not
only to recognize their legal obligations but to discharge
obligations of an equitable and moral nature as well.”).

For purposes of constitutional analysis, it does not
matter that the due-process claim is being made by
PACT, rather than the Elko County Sheriff's
Department. PACT, as the department’s insurer on this
claim, stands in the department's shoes and cannot
assert rights that its insured does not possess. Great
American Ins. Co. v. United States, 575 F.2d 1031, 1033
(2d Cir. 1978). It is significant that PACT is not asserting
a lack of notice to its potential responsibility for paying
the sheriff's department’s liability. The conclusive

6

presumption was added to NRS 617.457 in 1989.
Gallagher v. City of Las Vegas, 959 P.2d 519, 522 n.2
(Nev. 1998). PACT was not the department’s workers
compensation carrier in 1992, when Perry made his first
claim but undertook that role prior to the present claim,
made in 1998. Because PACT is in the business of
providing workers compensation coverage to public
agencies and political subdivisions, see Pet. at 2 n.2, the
conclusive presumption was no surprise and must have
been within its calculus in setting its premiums. Simply
put, neither PACT nor its insured can mount any due-
process claim.

PACT also claims the Nevada decision conflicts
with a 35-year-old Connecticut Supreme Court decision,
Ducharme v. City of Putnam, 285 A.2d 318 (Conn. 1971)),
superceded by statute, where the Connecticut court struck
down a similar statute after erroneously predicting that
this Court was on the verge of liberalizing its standing
doctrine to allow a political subdivision to assert a due-

3 While PACT asserts that the presumption is irrational
because there is no consensus in the medical/scientific
community that the stress entailed in service as a police officer
or firefighter causes heart disease, Pet. at 5 n.3, the legislature
is entitled to adopt one side of a debatable proposition as the
State’s public policy. Usery v. Turner Elkhorn Mining Co., 428
U.S. 1, 33-34 (1976). Siding with one set of experts over
another is not arbitrary and capricious. Jd. at 34. The
California Supreme Court recognized that the division of
medical opinion was “probably the most prolific and
troublesome problem in workmen’s compensation law’ (Larson,
The “Heart Cases” in Workmen's Compensation: An Analysis
and Suggested Solution (1967) 65 Mich. L. Rev. 441, 441), [and]
arises from ‘the persisting cleavage in medical theory itself (id.,
at p. 475) as to the relationship between stress, physical
exertion and progressive heart disease.” City and County of
San Francisco, 583 P.2d at 154-55.

7

process violation against the state.4 Contrary to that
prognostication, in the more than three decades since
Ducharme was decided, no decision of this Court has even
suggested that political subdivisions had acquired due-
process rights that might be asserted against its own
State. Instead, this Court has strengthened its deference
to state sovereign authority. See, eg., Gregory uv.
Ashcroft, 501 U.S. 452, 460 (1991).

Moreover, even while striking down the conclusive
presumption statute, Ducharme suggested that the State
could accomplish its objective, without offending
constitutional principles, by imposing a straightforward
obligation on political subdivisions to pay benefits to the
same firefighters and police officers without calling it
“workers compensation.” See Gregory , 501 U.S. 452 at
322. The Connecticut legislature then took up the court’s
suggestion and enacted Conn. Gen. Stat. § 7-433c,
obligating political subdivisions to provide special
compensation in the manner of workers compensation
benefits without calling it that to firefighters and police
officers who suffer heart disease after meeting certain
eligibility requirements. This statute was subsequently
upheld against constitutional attack in Grover v. Town of
Manchester, 357 A.2d 922, appeal dismissed, 423 U.S. 805
(1975).

Ducharme, thus, must be regarded as a confused
decision and imperfect conflict, permitting a state to
accomplish directly -— by direct requirement of
compensation ~ what it did not permit to occur through
indirection, application of a conclusive presumption to the

4 The Connecticut Supreme Court found the due process
violation under betti the state and federal constitutions without
engaging in any analysis that would suggest that the decision
was based on adequate and independent grounds.

8

existing workers compensation system. The result is the
same and constitutes little more than a distinction
without a difference. Just as the “controlling influence of
the Constitution may not be destroyed by doing indirectly
that which it prohibits from being done directly,”
Pullman Co. v. State of Kansas ex rel. Coleman, 216 U.S.
56, 70 (1910), the Connecticut court’s attempt to draw a
distinction between the invalidated indirect attempt to
help police and firefighters in favor of its endorsed direct ©
attempt renders its precedential value a nullity and
deprives Petitioner of its asserted conflict.

PACT urges upon this Court Connecticut’s
schizophrenic approach. It states that if “Nevada has an
interest in making an outright gift or special benefit to
police officers and firemen, it must do so outside the
Nevada Industrial Insurance Act and Nevada -
Occupational Disease Act.” Pet. at 10 (emphasis added).
Yet no principle of constitutional law requires a sovereign
state to eschew use of those two state statutes as a
vehicle for this end in favor of another. In fact, how a
State chooses to govern itself is largely outside the
cognizance of federal instruction. See, e.g., New York v.
United States, 505 U.S. 144, 162 (1992) (holding that “the
Constitution has never been understood to confer upon .
Congress the ability to require the States to govern
according to Congress’ instructions.”). See also Sweazey
uv. New Hampshire, 354 U.S. 234, 256 (1957) (“It would
make the deepest inroads upon our federal system for
this Court now to hold that it can determine the
appropriate distribution of powers and their delegation
within the forty-eight states.”) (Frankfurter, J.,
concurring).

Any conflict between Connecticut's Ducharme
decision and that of the Nevada Supreme Court in the
instant case turns on form rather than substance and
cannot be regarded as certworthy. Moreover, more recent
state supreme court decisions conclude that there is no

9

constitutional flaw. ‘n addition to the Nevada decision
below, the California Supreme Court upheld its similar
conclusive presumption in City and County of San
Francisco, supra.© In 1959, California amended its
relevant statute to provide that a five-year or greater
police force veteran's heart disease is occupationally
related, and the presumption is not subject to rebuttal on
the basis of evidence of a preexisting condition.® Id., 583
P.2d at 153. In response to an identical constitutional
challenge, the California Supreme Court found Usery,
supra, “directly on point and clearly demonstrates the
lack of merit in the city’s due-process contention.” City
and County of San Francisco, 583 P.2d at 160. In Usery,
this Court upheld a irrebuttable presumption in the
Black Lung Act, 30 U.S.C. § 921 (c)(1), (2), that the death
of a miner, who had worked in coal mines for 10 years
and who died of respiratory disease, arose out of and in |
the course of employment.

Il. NO FEDERAL ISSUE REQUIRING THIS
COURT'S ATTENTION IS PRESENTED

PACT further asserts that the importance of the
question presented can be gleaned from a newspaper

5 Other types of irrebuttable presumptions have also
been upheld, such as conclusive presumptions of dependency.
See Flint River Mills v. Henry, 236 S.E.2d 583 (Ga. 1977)
(stepchildren); McDonald v. Chrysler Corp., 242 N.W.2d 810
(Mich. 1976) (spouse, if living with worker); Fidelity & Cas. Co.
of N.Y. v. Masters, 335 So.2d 722 (La. Ct. App. 2d Cir. 1976),
writ denied, 338 So.2d 297 (La. 1976).

6 Petitioner cites Ducharme for the mistaken.
proposition that no other state had adopted a conclusive
presumption on the heart disease question as it affected police
or firefighters. Pet. at 5. In so opining, the Connecticut court
missed the 1959 California law.

10

article and recent actuarial studies alleging that the cost
of compliance with the challenged statute and several
others covering lung and hepatitis injuries on the job
would amount to $2.8 billion over the next three decades
for Nevada political subdivisions. Pet. at 4, 13. PACT
concedes that this information was not part of the record
during the administrative hearing and was submitted for
the first time below in a petition for en banc
consideration before the Nevada Supreme Court. Id.
Nevada Rule of Appellate Procedure 40A(c) prohibits
parties from raising issues in such a petition for the first
time. While the assertions should receive no credit at all
because it was not properly presented for consideration
nor actually considered below, the potential costs in-state
is properly a matter for state legislative consideration
and does not transform this intramural dispute into one
of sufficient national importance to draw this Court’s
attention.

CONCLUSION

The petition for a writ of certiorari should be
denied.

Respectfully submitted,

August 2006 ROBERT S. PECK*
CENTER FOR CONSTITUTIONAL
LITIGATION, P.C.
1050 31% Street, N.W.
Washington, D.C. 20007
(202) 944-2874 ~

Barbara Gruenewald
ANDERSON & GRUENEWALD
439 Marsh Avenue

Reno, Nevada 89509

(775) 322-3366

*Counsel of Record

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1147%3A3. Public record. Not legal advice.