Amicus Curiae Brief — Deramus v. Jackson National Life Insurance

] Supreme Court, U.S.

4 2. £ DP

| JAN 18 1997

No. 96-947

CLERK

In The

Supreme Court of the United States

October Term, 1996

®

JODY H. DERAMUS,

Petitioner,

JACKSON NATIONAL LIFE INSURANCE COMPANY,

Respondent.

¢

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

*

BRIEF OF AMICUS CURIAE

STATE OF MISSISSIPPI

IN SUPPORT OF PETITIONER

4

Mike Moore

Attorney General

State of Mississippi

Rickey T. Moore*

Special Assistant

Attorney General

Post Office Box 220

Jackson, Mississippi 39205

(601) 359-3680

Counsel for Amicus Curiae

* Counsel of Record

January 13, 1997

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

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TABLE OF CONTENTS

Page

BERS AIR PANS CER EOE 0 56 voce svevevscunesuess ii

SEINE MEMERS SIF PIMERURMOE cece sekstsassscsccenes 1

JUSTIFICATION FOR GRANTING THE WRIT...... 1

The Compelling State Interest.................... 1

Statutes and Regulations Requiring Reporting.... 3

The Fifth Circuit Did Not Comply With Erie

oe ect an EEE ULE EEE SORT yor Oe TOPE 6

The Fifth Circuit Did Not Comply With Salve

PTE TION, oon. Rh eee ae een tc teka es 9

be A$ Gee TET ECC ET Pr re yay ee renee 10

ii

TABLE OF AUTHORITIES

CASES

Barnes v. Atlantic & Pacific Life Ins. Co., 514 F.2d

TOS C3) Coe. FWGTSRs «i vines oes ob ee ewes

Belioti ». Baird, 426 U.S. 132 C2976) 6 ios wescesencss

Clay v. Sun Insurance Office, Ltd., 363 U.S. 207

(TIGR) » sevens cdnasfaneaveun sages eee eee

Colorado River Water Conservation District v. U.S.,

O26 US. BOO C097 obi sicicxiccnws alee

Erie R. Co. v. Tompkins, 304 U.S. 64 (1935)........

Hanna v. Plumer, 380 U.S. 460 (1965) .............

Kennington-Saenger Theaters v. State, 18 So.2d 483

ERRNO. FPGG) ov un cnindanenaneedaes becuase

Lehman Brothers v. Schein, 416 U.S. 386 (1974).....

Mosher v. Speedstar Div. Of AMCA Intern., Inc., 52

9d BIS CORE) os cc cades ee

Murdock v. Memphis, 87 U.S. (20 Wall.) 590 (1874) ...

Salve Regina College v. Russell, 499 U.S. 225

RSDP) vicvcccewacdes scene dasa eeeieete 9,

Sultenfuss v. Snow, 35 F.3d 1494 (11th Cir. 1994) (en

banc), cert. denied, ___ U.S. __, 115 S.Ct. 1254,

km Om. Be By pe ro ee

Toner v. Lederle Laboratories, 779 F.2d 1429 (9th Cir.

SOE 00d udeedevascoseecsnteeiae ee

ili

TABLE OF AUTHORITIES ~— Continued

- Page

STATUTES AND RULES

es ho bn hed Keke eNO Rp Kes eeDentevas sees 6

Miss. Code Ann. § 41-23-1(1) (1972). .........ccecceees 3

Miss. oe es es OE eh 4 re 4

Miss. Code Ann. § 41-23-1(7) (7972). .... cece scccsecen 4

Miss. Code Ann. § 41-23-1(9) (1972)............. 0200. 4

REED. BR. FAD, PROG. Bane ccc nenecevsccassensenns 7

OTHER

17 C. Wright, A. Miller & E. Cooper, Federal Prac-

tice and Procedure § 4248 (1978) ...........-0seeeeee 8

STATEMENT OF INTEREST OF AMICUS CURIAE

The State of Mississippi, through its Attorney Gen-

eral, Mike Moore, respectfully submits this amicus curiae

brief in the above styled matter pursuant to Rule 37.4 of

the Supreme Court Rules. The Office of the Attorney

General, created by Article 6, Section 173 of the Missis-

sippi Constitution of 1890, is entrusted with management

of all legal affairs of the state including the authority to

manage and control all litigation necessary for enforce-

ment of state laws and protection of public rights. Ken-

nington-Saenger Theaters v. State, 18 So.2d 483, 486 (Miss.

1944). The public policy issues raised in this matter are of

paramount importance to the public health and safety of

the citizens of Mississippi. The federalism issues raised

by this case, as underscored by an apparent split in the

circuit courts of appeal, require this Court to give defini-

tive guidance with regard to the appropriate use of certi-

fication procedures.

JUSTIFICATION FOR GRANTING THE WRIT

The Compelling State Interest

The control, treatment, and prevention of communi-

cable diseases is of paramount importance to the several

states. Of the numerous communicable diseases that

afflict the citizens of this country, none are more insid-

ious, deadly, or costly than the human immunodeficiency

virus ( hereinafter referred to as “HIV”). Clinical mani-

festation of disease as a result of HIV occurs when one or

more opportunistic diseases occur in the presence of the

virus, referred to as acquired immunodeficiency syn-

drome (hereafter referred to as “AIDS”).

Mississippi is a very rural state. A little more than

half of Mississippi’s counties have a population of 25,000

or less, with only 10 of its counties having a population

greater than 60,000. Mississippi has four standard metro-

politan statistical areas which include seven of its 82

counties. Statistics reveal that over 52% of the state’s

population live in rural areas. All of Mississippi’s 82

counties, or parts thereof, are medically underserved, and

54 of the 82 counties are designated as health professional

shortage areas.

As compared to many other states, Mississippi's citi-

zens are poor, under-educated, under-employed, and rel-

atively unhealthy. While there are no definitive

explanations for these conditions, it is reasonable to sur-

mise that none exist independently of the others, and that

comprehensive social, economic and health programs are

needed to correct them.

The conservative, religious nature of Mississippians

compounds other environmental difficulties in that dis-

cussions of HIV infection and AIDS are rarely conducted

in frank, open forums. Scientifically verified interven-

tions are often prohibited because they appear to give

implicit permission to the behaviors they seek to modify

or in which they attempt to reduce the level of harm.

Obviously, all this means that HIV infection and

AIDS are even more difficult issues to address in Missis-

sippi than in other states. It is of paramount importance

that all persons with diagnostic information regarding a

communicable disease report such information to the

State Department of Health.!

Statutes and Regulations Requiring Reporting

The state has enacted legislative and regulatory

reporting requirements in an effort to ensure that certain

communicable diseases are reported. Despite the efforts

of the state legislature and the State Board of Health,

problems continue to exist with the reporting of commu-

nicable disease, particularly where out-of-state laborato-

ries are involved. The sufficiency of state statutes and

regulations mandating reporting should be determined

by the Mississippi Supreme Court, the only court consti-

tutionally empowered to do so. Moreover, the far-reach-

ing determination of whether or not an insurance

company, or any other person with knowledge of a com-

municable disease, has a duty to report such information

to an affected citizen of Mississippi should be determined

by the Mississippi Supreme Court.

Miss. Code Ann. § 41-23-1(1) (1972) charges the State

Board of Health with the duty to promulgate rules and

regulations defining and classifying communicable dis-

eases and other diseases that are a danger to health and

1 The intervention process initiated by the Department of

Health is detailed, exhaustive, and tailored to the specific

disease in question. At the risk of over-simplification, the

Department’s intervention programs are designed to prevent

the spread of communicable disease through diagnosis,

treatment and education. In the case sub judice, the Petitioner

would have been contacted by Department staff as a routine

part of the intervention process.

to provide for a procedure for reporting, monitoring and

prevention of such diseases. Subsection (4) of the same

section charges every practicing or licensed physician, or

person in charge of a hospital, health care facility or

laboratory, with the responsibility of reporting imme-

diately to the State Board of Health every case of a

reportable communicable disease.

The importance of reporting communicable diseases

is underscored by Miss. Code Ann. § 41-23-1(6) (1972)

wherein a physician who breaches his duty to report is

subject to suspension of his license to practice medicine.

Moreover, Miss. Code Ann. § 41-23-1(7) (1972) makes the

failure to report a communicable disease a crime subject

to a monetary fine and confinement in the county jail.

Miss. Code Ann. § 41-23-1(9) (1972) requires that persons

who receive notification of the infectious condition of an

individual hold such information in the strictest of confi-

dence and privilege and not reveal the information to

others, and take only those actions necessary to protect

the health of the infected person or other persons where

there is a foreseeable, real, or probable risk of transmis-

sion of the disease.

Pursuant to the aforementioned code sections, the

Mississippi State Board of Health has adopted its Rules

and Regulations Governing Reportable Diseases (hereafter

referred to as the “Regulation”). Section I of the 1985

version of the Regulation, in effect at the time Mr.

Deramus made application to Jackson National Life, pro-

vided in part as follows:

Each physician, including each pathologist, den-

tist, and nurse, as well as the superintendent,

administrator, or other person in charge of any

hospital, institution, school or day care center

shall report to the State Department of Health

any case or suspected case of communicable or

reportable disease, including those hereinafter

listed, which he is attending, has examined, or

of which he has knowledge. Such report shall

include, unless otherwise specified, the patient’s

name, address, age, race, sex, the disease or

suspected disease and the date of onset of the

disease.

Acquired Immunodeficiency Syndrome (AIDS) was

included among the diseases of public health importance

to be reported. Section V of the Regulation provided in

part as follows:

lt shall be the duty of the director or any other

person in charge of any clinical laboratory in the

State of Mississippi to notify the Mississippi

State Department of Health, Jackson, by for-

warding within 24 hours a copy of any labora-

tory report which is considered diagnostic of or

indicative of the diagnosis of a reportable dis-

ease .. . (emphasis added).

In order to prevent communicable diseases the

appropriate state agency, which in Mississippi is the State

Department of Health, must have access to information

regarding diagnosis of such disease. Moreover, it is neces-

sary that persons infected with a communicable disease

be apprised of his condition to minimize the possibility of

infecting persons with whom he comes in contact.

Toward this end, the State Board of Health promulgated

and has revised the Regulation several times in an

attempt to ensure that all health care providers, or other

persons with diagnostic information, report such infor-

mation.

Because of the compelling state interest in adequate,

timely reporting of information regarding communicable

diseases, any questions arising regarding the interpreta-

tion of state statutes or regulations promulgated pursuant

to those statutes should be decided by the Mississippi

Supreme Court. Likewise, because of the grave impact on

the citizens of the state, the application of tort law to facts

surrounding the failure to report information regarding

communicable diseases, should be decided ultimately by

the Mississippi Supreme Court. It is simply inappropriate

for a federal court, sitting as a result of jurisdiction based

on diversity, to decide public policy matters of such

importance.

The Fifth Circuit Did Not Comply

With Erie Requirements

In Erie R. Co. v. Tompkins, 304 U.S. 64 (1935) the

Supreme Court recognized that “[t]here is no federal

general common law.” Id. at 78. Erie requires federal

courts sitting in diversity to follow the law laid down by

the respective state courts, so long as those precedents

are constitutional, consistent with statutory provisions,

and do not interfere with the power granted to federal

courts.? Erie, when read with Murdock v. Memphis, 87 U.S.

(20 Wall.) 590 (1874), ensures that the decisions of state

2 See also 28 U.S.C. Section 1652 (“The laws of the several

states, except where the Constitution or treaties of the United

States or Acts of Congress otherwise require or provide, shall be

regarded as rules of decision in civil actions in the courts of the

United States, in cases where they apply”).

ia a a ke ee

courts will be respected by federal courts sitting in diver-

sity.

Despite the possibility of making an incorrect

“Erie-guess” on a matter of compelling importance to the

State of Mississippi and to its individual citizens, the

Fifth Circuit simply affirmed, without comment, the find-

ings of the district court. In so doing, the Fifth Circuit

violated two principles set down by this Court. This

Court has long encouraged the use of certification pro-

cedures to resolve unsettled state law questions. See, e.g.,

Clay v. Sun Insurance Office, Ltd., 363 U.S. 207 (1960). The

court of appeals also failed to follow this Court’s require-

ment for a de novo review of the trial court’s findings.

Under Mississippi rules, the Fifth Circuit could have

certified the question to the Mississippi Supreme Court.

See Mississippi R. App. Proc. 20. Without explanation, how-

ever, the circuit court of appeals simply entered a PER

CURIAM order affirming the judgment of the district

court “on the basis of the district court’s Memorandum

Opinion and Order attached hereto.”

The public policy and individual rights decided by

the federal courts in this matter are too important for an

“Erie-guess.” Unsettled questions of state law, partic-

ularly those involving important public policy issues,

should be decided by the appropriate state court. In this

case, the Mississippi State Supreme Court is the only

court with the constitutional jurisdiction to make the call.

See, e.g., Lehman Brothers v. Schein, 416 U.S. 386, 391

3 In Murdock, this Court suggested that it would not

concern itself with revisiting issues of state law.

(1974); See also Colorado River Water Conservation District v.

U.S., 424 U.S. 800, 814 (1976) (discussing abstention by

federal courts, “in a case and in similar cases [which

would] be disruptive to state efforts to establish a coher-

ent policy with respect to a matter of substantial public

concern.”).

This Court stated in Lehman Brothers, 416 U.S. at 391,

that certification “does, of course, in the long run save

time, energy, and resources and helps build a cooperative

judicial federalism.” See also Belloti v. Baird, 428 U.S. 132

(1976). The vast majority of states, like Mississippi, have

procedures for the certification, from federal courts, of

questions of unsettled law.

Several circuits appear to have embraced this Court's

instruction. In Toner v. Lederle Laboratories, 779 F.2d 1429

(9th Cir. 1986), the Ninth Circuit recognized that

“{clertification provides a means to obtain authoritative

answers to unclear questions of state law.” Id. at 1432,

citing 17 C. Wright, A. Miller & E. Cooper, Federal Practice

and Procedure § 4248, at 520 (1978). The Eleventh Circuit

noted in Mosher v. Speedstar Div. Of AMCA Intern., Inc., 52

F.3d 913 (1995) that:

.. . [Certification] is a useful adjudication tool.

Only through certification can federal courts get

definitive answers to unsettled state law ques-

tions. Only a state supreme court can provide

what we can be assured are “correct” answers to

state law questions, because a state’s highest

court is the one true and final arbiter of state

law. From our perspective, state law is what the

state supreme court says it is, and a state

supreme court’s pronouncements are binding on

every state and federal judge.

OO

Id. at 917, citing Sultenfuss v. Snow, 35 F.3d 1494, 1504

(11th Cir. 1994) (en banc) (Carnes, J., dissenting), cert.

denied, ___ U.S. ___, 115 S.Ct. 1254, 131 L.Ed.2d 134 (1995).

In light of earlier decisions by the Fifth Circuit

embracing the use of certification procedures, the failure

to rely on the Mississippi Supreme Court to resolve this

unsettled question is inexplicable. See, e.g., Barnes v.

Atlantic & Pacific Life Ins. Co., 514 F.2d 704 (5th Cir. 1975);

and Walters v. Inexco Oil Co., 670 F.2d 476 (5th Cir. 1982).

The outcome of this case is too important to be decided

by an “Erie-guess”. In a matter of such grave public

policy importance, principles of cooperative federalism

demand that the unsettled questions undergirding this

controversy be decided by the only court with the consti-

tutional wherewithal to do so, the Mississippi Supreme

Court.

The Fifth Circuit Did Not Comply With

Salve Regina Requirements

On appeal of the trial court’s disposition of this case,

the Fifth Circuit panel affirmed by simply holding “[t]he

judgment of the district court is affirmed on the basis of

the district court’s Memorandum Opinion and Order

attached hereto.” This Court concluded in Salve Regina

College v. Russell, 499 U.S. 225 (1991) that “a court of

appeals should review de novo a district court’s deter-

mination of state law.” Id. at 231. The principles of the

Erie doctrine, “the discouragement of forum-shopping

and avoidance of inequitable administration of the laws”

are advanced by independent appellate review. Id. at 234,

10

citing Hanna v. Plumer, 380 U.S. 460, 468 (1965). Conclud-

ing the holding in Salve Regina, this Court stated, “[t]he

obligation of responsible appellate review and the princi-

ples of a cooperative judicial federalism underlying Erie

require that courts of appeal review the state-law deter-

minations of the district courts de novo.” Id. at 239. The

affirmance of the district court’s determination fails to

comply with this Court’s charge.

¢

CONCLUSION

The State of Mississippi has a compelling interest in

the public policy issues at stake in this case. Likewise,

important private rights of its citizens are at issue. The

unsettled law at the heart of this case should have been

certified to the Mississippi Supreme Court. By utilizing

the certification procedure provided for by the Mississippi

Rules of Appellate Procedure, the Fifth Circuit could have

avoided the possibility of affirming an incorrect “Erie-

guess” by the district court. Moreover, the Fifth Circuit

failed to follow the requirements for appellate review laid

11

down by this Court in Salve Regina. Based on the forego-

ing, the State of Mississippi urges that the lynchpin ques-

tions underlying this controversy be decided by the

Supreme Court of Mississippi.

Respectfully submitted,

Mixe Moore

Attorney General

State of Mississippi

Rickey T. Moore*

Special Assistant

Attorney General

Post Office Box 220

Jackson, Mississippi 39205

(601) 359-3680

Counsel for Amicus Curiae

* Counsel of Record

January 13, 1997