Howlett By and Through Howlett v. Rose

PETITIONER:Howlett By and Through Howlett
RESPONDENT:Rose
LOCATION:Doby’s Motel Court

DOCKET NO.: 89-5383
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: State appellate court

CITATION: 496 US 356 (1990)
ARGUED: Mar 20, 1990
DECIDED: Jun 11, 1990

ADVOCATES:
Charles A. Rothfeld – on behalf of the Respondent
Gardner W. Beckett, Jr. – on behalf of the Petitioner

Facts of the case

Question

Audio Transcription for Oral Argument – March 20, 1990 in Howlett By and Through Howlett v. Rose

William H. Rehnquist:

We’ll hear argument first this morning in No. 88… pardon me, 89-5383, Mark Howlett v. Scott Rose.

Mr. Beckett.

Gardner W. Beckett, Jr.:

Mr. Chief Justice and may it please the Court:

Mark Howlett brought an action under Title 42, Section 1983, the Federal Civil Rights Act of 1873.

The defendants were the School Board of Pinellas County, Florida and designated officials of that school board.

The action charged two offenses: a violation of the Fourteenth Amendment of the due process clause and a violation of the Fourth Amendment.

The allegation with respect to the Fourth Amendment was that the assistant principal of the high school at which Mark Howlett was a student broke into his automobile while the automobile was lawfully parked on the school ground.

The second charge of… of violation of due process was that in the ensuing suspension, which he received for five days, the due process, as ordained by this Court, was not granted.

The Circuit Court of Pinellas County, Florida is a court of general jurisdiction in which this action was brought.

The Circuit Court of Pinellas County dismissed the action on two grounds.

The first ground was that the sovereign immunity of the state of Florida barred the action.

The second ground was that the administrative remedies had not been exhausted.

On appeal, the District Court of Appeals of the Second District of Florida affirmed on the first ground and did not reach the second ground, the first ground being that there was a want of jurisdiction because of the sovereign immunity of the school board.

Under Florida law, the school board is immune from suit.

The question presented, therefore, is whether or not the school board is immune under Federal law.

The Supreme Court of Florida, with one justice dissenting, denied review, and this Court granted certiorari.

The first question to be addressed is simply the fact that the broad ground on which the District Court of Appeal of Florida affirmed the dismissal is, as a matter of law, incorrect.

Namely, that whether or not jurisdiction exists when a state court exercises or attempts to exercise jurisdiction under 1983 is solely a matter of state law.

William H. Rehnquist:

Well, Mr. Beckett, would it be fair to say that another way of presenting… of phrasing the question is whether a state court has to entertain an action brought under Section 1983?

Gardner W. Beckett, Jr.:

No, Your Honor, we don’t think that because we think there’s an intermediate ground in which this Court has taken the position that where the suit brought on a Federal claim is a claim which is within a class of claims that the state customarily exercises jurisdiction over.

Then, even without addressing the question of whether the state would have to do it by direction of Congress, they would have to do it simply because it is within a class of claims which the state does entertain.

William H. Rehnquist:

So your… your position is that the state entertains claims just like this against the State of Florida, but it doesn’t entertain a claim against… under Section 1983?

Gardner W. Beckett, Jr.:

Not against the State of Florida, Your Honor, because one of the distinctions to be made is that although the school board is immune from suit under Florida law, it is not immune from suit under the rulings of this Court under 1983.

William H. Rehnquist:

And so what are the other claims just like this that are so similar that Florida entertains that… that this should be entertained too?

Gardner W. Beckett, Jr.:

If Your Honor please, going back to Claflin against Houseman, an 1876 case in which Justice Bradley rendered the opinion of the Court, the claim there was based on a… an assignment in bankruptcy.

The state court refused to entertain it on the ground that the assignment in bankruptcy was solely a matter of Federal law.

In a rather elaborate opinion, Justice Bradley explained that because of the dual nature of our court system and the dual nature of the laws of this country, that it… the state court was required to entertain the action, an assignment in bankruptcy, because it routinely handled assignments in other matters.

In other words, the mere fact that it was an assignment from Federal law was not a reason to deny the claim.

William H. Rehnquist:

Well, then what are the kinds of claims that Florida courts routinely handle that would cover this sort of claim?

Gardner W. Beckett, Jr.:

Florida, Your Honor, has a general statute which abolishes or waives the statutory immunity of the state and its agencies in all tort claims except tort claims involving so-called discretion or discretionary acts.

Gardner W. Beckett, Jr.:

It… there have been a number of rulings, including a ruling by the Supreme Court of Florida, that this general waiver of tort liability does not extend to constitutional torts under 1983.

And thus, we have the juxtaposition which Your Honor is inquiring about, a general release of authority, a general waiver with respect to torts, but as to constitutional torts, no waiver.

That’s the… that’s the general set-up.

William H. Rehnquist:

Is there a waiver as to torts which were claimed to be violations of the state constitution?

Have the Florida courts spoken on that?

Gardner W. Beckett, Jr.:

Not by… not in the legislature.

There are one or two cases where the Florida Supreme Court has ruled that a denial of due process can be of such a nature that even though there is no provision under state law, it simply will not be allowed.

One other point I’d like to make, Your Honor, in connection with that, is that in Owen against the City of Independence this Court established the rule that there is no discretion to violate the Constitution.

And so anticipating the argument in the… which we have received in the brief from the opposition, one of the arguments is that the discretionary… the discretionary exception to the waiver covers this case.

We maintain that it does not because of this Court’s position in Owen, simply that it’s not constitutionally permissible to violate the Constitution.

Therefore, there cannot be any discretion in that area.

Consequently, the general waiver also has to include this class of cases unless there is going to be a discrimination against Federal law.

Another case illustrating the same point is Mondou against New York, a 1912 case, under the Federal Employees Liability Act.

There the state of New York refused to enforce the FELA simply because it was contrary to the policy of the state of New York.

This said that… this Court said that any exception to enforcement must depend on some outside reason.

It may not depend on simply a dislike of the cause of action.

In McKnett against San Francisco and… St. Louis and San Francisco Railway, a 1984 decision written by Justice Brandeis, the operative provisions of the law there… of the law of Alabama there were that a proceeding which existed under the common law or under statute law could be brought in the courts of general jurisdiction of Alabama.

But the FELA could not be brought because it was under Federal law and the express language of the Alabama statute did not include a claim based on Federal law.

In reversing the case, Justice Brandeis said that the question of jurisdiction, although originally a matter of state concern, is ultimately a question of Federal concern.

And if the only reason the similar claim is not enforced is simply because it is a claim based on Federal law, that distinction cannot be observed.

And the court must entertain that claim along with the other claims.

Antonin Scalia:

Mr. Beckett, could I ask–

–The other end.

Yeah.

Could I ask you to come back to this… this discretionary point.

Florida law says, and you agree, that a tort claim will not lie under its waiver of sovereignty with respect to discretionary acts, and your response is that there is no discretion to violate the Constitution.

Well, is that what Florida means by… by discretion?

I mean, I assume that there is no discretion to commit any tort in that sense.

Gardner W. Beckett, Jr.:

Well, that’s not the sense in which it’s used in Florida, Your Honor.

There are a great many cases, in amicus brief in particular, in which it’s pointed out that any exercise of… of discretion such as an executive decision, where to put a traffic light, a policeman’s failure to make an arrest which ultimately resulted in a crime by the person not arrested… all of those things involving discretion and the exercise of official duties generally are said to be discretionary and consequently not waived.

Antonin Scalia:

Well, why… why isn’t there some discretion involved here on the part of the principal as to whether he had authority to make the examination of the car that he did and as to whether the procedures that were provided in the hearings were adequate?

Why isn’t there some discretionary–

Gardner W. Beckett, Jr.:

There is a–

Antonin Scalia:

–judgment implied in that?

Gardner W. Beckett, Jr.:

–There is a distinction, Your Honor, between making a mistake and violating the Constitution.

That’s our position.

For example, a decision that he had authority to change the hours of the school or that he had authority to change… to put the car in a different parking lot, are all discretionary matters.

But he did not have discretion to violate the Constitution by breaking into the automobile when it was lawfully parked and locked and there was not danger that he was going to run away or anything like that.

It was… the violation is of the reasonable–

Antonin Scalia:

Didn’t he have some discretion to decide whether there was danger that it was going… going to be taken before… before he could get a warrant and before proper investigation could be made?

Gardner W. Beckett, Jr.:

–No, Your Honor.

Antonin Scalia:

Didn’t somebody have to make that decision?

Gardner W. Beckett, Jr.:

No.

The facts were that the car was lawfully parked in lot where it had been lawfully parked in lot before.

Apparently, there was a desire to drive a construction truck through that area and the assistant principal was contacted and it was decided that it was necessary to move the car.

Our position is that that did not give him authority to violate the Fourth Amendment by making an unreasonable breaking in of the car.

He had alternatives, and I think that’s what Your Honor is suggesting.

If you say, for example, did he have time to get a warrant–

Antonin Scalia:

Well, you’re making a quite different argument though now.

Now you’re making the argument that in the facts of this case there was no discretion involved.

But the–

Gardner W. Beckett, Jr.:

–Because he–

Antonin Scalia:

–But your initial argument was that no violation of Section 1983 could come within Florida’s discretionary exception because there is simply never any discretion to violate the Constitution.

That’s a much broader argument.

Gardner W. Beckett, Jr.:

–I don’t think I’ve changed that, Your Honor.

The… if there… if–

Antonin Scalia:

Well, you haven’t changed it but your not defending it either.

You’re defending a quite different proposition.

Gardner W. Beckett, Jr.:

–If, as a matter of fact, there was some reasonable action that could be taken, that was the action which the statute… or which the Fourth Amendment required.

That is a factual matter.

Gardner W. Beckett, Jr.:

It’s our position that there were ample actions that he could have taken without breaking into the car.

Therefore, the breaking in was unreasonable, and therefore, it was a violation.

We don’t deny he had a choice, but the choice he made violated the Fourth Amendment.

Sandra Day O’Connor:

Mr. Beckett, did you raise in… in the courts below the question whether the complaint against the officials in their individual capacity had been dismissed?

Gardner W. Beckett, Jr.:

No, Your Honor.

We did not.

Under Florida law, a… a granting of a motion to dismiss is error if it… if it can be reversed on any ground.

And we did not pursue those separate matters.

Byron R. White:

Do you… do you know whether Florida courts will entertain 1983 actions against individual officers in their individual capacity?

Gardner W. Beckett, Jr.:

We do know and they will.

Yes.

There is an abundant law that the… that the sovereign immunity claim here extends–

Byron R. White:

So in this… in this case you say that even if… even if under Florida law the case against the officials in their official capacity should have been dismissed, in other cases they entertain the suits in the individual capacity.

Gardner W. Beckett, Jr.:

–That’s correct, Your Honor, and it’s our opinion that such a distinction could have been made with the court in this case.

But it was not and we did not pursue that aspect of it.

We pursued what we thought was the central concern.

That is to say, the claim of sovereign immunity against the school board.

Byron R. White:

There’s… that they refuse to entertain 1983 actions entirely–

Gardner W. Beckett, Jr.:

No.

Byron R. White:

–or you can’t really say that–

Gardner W. Beckett, Jr.:

No, and I–

Byron R. White:

–they… they are–

Gardner W. Beckett, Jr.:

–and if I… if I gave that impression, that is not our position.

Byron R. White:

–No.

Gardner W. Beckett, Jr.:

Our position is that where there is a distinction, as there is in this case, between liability under 1983 and immunity under the state law, 1983 controls.

The question of immunity under 1983 is a Federal question and that of course was settled in Martinez.

Here, the court on the ground that we particularly attack, said the school board was not liable because under Florida law it was not liable, and that was the end of the matter.

Byron R. White:

Well, you wouldn’t… you wouldn’t say that if… if Florida had never waived any of its sovereign immunity for ordinary torts or any other set of torts, you wouldn’t say that Florida had to entertain 1983 suits would you?

Gardner W. Beckett, Jr.:

We wouldn’t say it on this basis, Your Honor.

We would have to make it on a different basis, simply that it was the purpose of Congress to make it enforceable in state courts regardless.

Gardner W. Beckett, Jr.:

Our position here is, as I said earlier, I believe is an intermediate position.

Once the state is under… undertaken to grant jurisdiction or entertain a claim of the class of claims–

Byron R. White:

Tort claims… tort claims.

Gardner W. Beckett, Jr.:

–In this case, tort claims, of which the Federal claim is itself a member, then it may not refuse to entertain that claim merely because it’s a Federal claim.

William H. Rehnquist:

Well, would a… would a Florida state court have entertained a tort suit by your client against Scott Rose as superintendent of schools for Pinellas County simply based on a violation of state tort duty?

Gardner W. Beckett, Jr.:

No, it would not if you mean in his official capacity.

William H. Rehnquist:

Yes.

Gardner W. Beckett, Jr.:

It would not.

William H. Rehnquist:

Well, so why… isn’t fair to say that Florida is treating both claims based on the Federal Constitution on state tort law the same here?

They’re not allowing them against this particular entity in its official capacity?

Gardner W. Beckett, Jr.:

We don’t think so, Your Honor, and the reason is… the reason that I enunciated a little earlier, the fact that there is no discretion to violate the Constitution and the only exception to the waiver is the discretionary exception, though we think that as a matter of fact it cannot be brought within the discretionary–

Antonin Scalia:

Excuse me.

The… the discretionary exception is the reason that an ordinary tort suit was not have been bringable in Florida?

Is the… is the discretionary exception the reason you responded to the Chief Justice the way you did, that the suit could not be brought?

Gardner W. Beckett, Jr.:

–No.

It’s not, Your Honor.

The reason the suit could not be brought against the school board or against the superintendent in his official capacity is because they are immune from suit in their official capacities.

If they were not immune, then the question would arise as to whether the act was discretionary.

Antonin Scalia:

Well–

Gardner W. Beckett, Jr.:

We say that it couldn’t be discretionary–

Byron R. White:

–They’re immune, but you mean that… you mean they were protected by sovereign immunity.

Gardner W. Beckett, Jr.:

–That is correct.

Byron R. White:

Yes.

Gardner W. Beckett, Jr.:

That is correct.

We also take the position that under Federal law sovereign immunity is just one more example of an immunity claim which can be brought or asserted under 1983.

And we, of course, take the further position that it cannot be maintained.

Sandra Day O’Connor:

Well, Mr. Beckett, if a state decided to waive its sovereign immunity, let’s say only for intentional torts of any kind, do you think that you would be entitled to bring an action in state court based on Section 1983 for that kind of a tort?

Gardner W. Beckett, Jr.:

The question would be whether or not the tort we were seeking to redress was intentional.

Sandra Day O’Connor:

Yes, let’s assume that.

Gardner W. Beckett, Jr.:

If it were, it would clearly fall.

Gardner W. Beckett, Jr.:

We would–

Sandra Day O’Connor:

Well, you don’t think then that there could be any room for saying that a neutral state waiver of sovereign immunity to a limited extent can be upheld even though it’s based on Section 1983 in state court?

Gardner W. Beckett, Jr.:

–That’s really correct, Your Honor, and the reason is the reason I stated, that there is no… there is no authority to violate the Constitution.

Sandra Day O’Connor:

Well, but that certainly isn’t a discriminatory kind of statute, is it… that kind of waiver?

There’s… the kind that we’re discussing doesn’t discriminate against Federal claims.

It’s neutrally applicable to both state and Federal claims.

Gardner W. Beckett, Jr.:

We don’t think it’s neutral if the only effect of it is to preclude the assertion of a Federal claim which is–

Sandra Day O’Connor:

Well, that isn’t the only effect.

By assumption, it would preclude a state court action based on an intentional… I mean, it would waive it for intentional torts only.

Gardner W. Beckett, Jr.:

–That’s true.

That’s true.

Sandra Day O’Connor:

And why isn’t that neutral?

Gardner W. Beckett, Jr.:

Simply because under… under this Court’s decision as in Owen, it is not permissible to violate the Constitution.

And both of these examples are intentional.

Sandra Day O’Connor:

Well, of course, you could file your suit in Federal court, could you not?

Gardner W. Beckett, Jr.:

We could.

Sandra Day O’Connor:

Yes.

Gardner W. Beckett, Jr.:

That’s correct.

Harry A. Blackmun:

Was there… was there a reason for not filing it in Federal court?

Gardner W. Beckett, Jr.:

Yes, there was, Your Honor.

It’s… we felt it was desirable to explore this area and to make 1983 available in state court.

It was a deliberate decision to raise this question.

Harry A. Blackmun:

But that puts your client in… this particular client in a bind doesn’t it?

Here he is up here now arguing an issue which need not have been faced had he been in Federal court.

Gardner W. Beckett, Jr.:

That’s true, and that was discussed with the client, and we explained to him what we thought we could do with this case.

And he was in accord with that.

Byron R. White:

I read your… I read your brief as suggesting a state may not… may not make itself or its… may not make its agencies or this local… the counties and cities immune… give them sovereign immunity because the Eleventh Amendment doesn’t give them sovereign immunity.

Gardner W. Beckett, Jr.:

Well, as Your Honor knows the Eleventh Amendment has two–

Byron R. White:

Well, I know but–

Gardner W. Beckett, Jr.:

–has two… two steps removed–

Byron R. White:

–you do argue that in your brief, don’t you?

Gardner W. Beckett, Jr.:

–I don’t believe we argue it that way.

The Eleventh Amendment is two steps removed.

The first is that we’re in state court.

Byron R. White:

Yes.

Gardner W. Beckett, Jr.:

And the second is as result of this Court’s recent decision in Will, the state in its agencies are immune in any event.

And this Court said that in Doyle against the Mt.

Healthy City School Board, in which it also said that a school board was more like a county and a municipality, and for that reason, the liability carries over.

We simply seek to enforce that liability in state court rather than in Federal court.

Byron R. White:

Well, what law do you think… you say that… one of your arguments is that the scope of immunity defense under 1983 is governed by Federal law.

Gardner W. Beckett, Jr.:

That’s true.

Byron R. White:

What Federal law determines the–

Gardner W. Beckett, Jr.:

1983.

Byron R. White:

–immunity in this case?

Gardner W. Beckett, Jr.:

1983.

This Court has over a–

Byron R. White:

Well, tell me how it solves this problem.

Gardner W. Beckett, Jr.:

–Over a period of time this Court has recognized many immunities under 1983: executive immunity in Tenney against Brandhove, judicial immunity in Ray against Pierson.

That’s the only two that occur to me immediately, but there are any number… in fact I have a–

Byron R. White:

Well, go ahead, go ahead.

Gardner W. Beckett, Jr.:

–a list of them here.

Scheuer against Rhodes was executive immunity.

Byron R. White:

Well, how does 1983 help you in this case in… in establishing the limits of immunity?

Gardner W. Beckett, Jr.:

Well, we start with the proposition that 1983 on its face shows no immunities.

This Court has recognized that there are a number of common law immunities which are built… which Congress presumably built into 1983.

One of them is not the immunity of school boards.

So we therefore say that 1983 controls this case as a matter of Federal law.

Byron R. White:

On that basis… on that basis Florida just hasn’t any business extending sovereign immunity to cities or its school boards.

That seems to be your argument.

Gardner W. Beckett, Jr.:

Extending sovereign immunity.

Byron R. White:

Yes, or giving sovereign immunity to… or providing that cities may not be sued for constitutional torts in their… in the state courts.

Gardner W. Beckett, Jr.:

Now, I’m not sure I–

Byron R. White:

You say 1983 forbids that.

Gardner W. Beckett, Jr.:

–No, I don’t think we say 1983 forbids it.

It’s up to the State of Florida initially as to what of its agencies or creatures it will grant immunity.

And the State of Florida has done so.

Our position is that under 1983 only those immunities which this Court has recognized as a matter of Federal law apply in state court.

And one of those is not the immunity of school boards.

Byron R. White:

I see.

Gardner W. Beckett, Jr.:

Therefore, the school boards are not immune under Federal law even though they are immune under state law.

William H. Rehnquist:

Thank you, Mr. Beckett.

Mr. Rothfeld.

Charles A. Rothfeld:

Mr. Chief Justice and may it please the Court:

This case is fundamentally about the power of the states to establish and limit the jurisdiction of their own courts, and there is a single dispositive question here: whether a state court must entertain a Section 1983 when it lacks jurisdiction to do so under state law and when it also lacks jurisdiction to entertain analogous actions that are based on state law.

And here I must disagree with the reading of Florida law that Mr. Beckett presented to you when he said that there was discrimination between state and Federal claims.

It is clear in this case that this district court of appeal didn’t entertain petitioner’s 1983 action.

It simply concluded that because the school board, Respondent, has a common law immunity, an action against it simply will not lie at all in state court.

Sandra Day O’Connor:

Well, its language, Mr. Rothfeld, did say an action pursuant to Section 1983 will not lie in state courts.

Now what is the nature of the disability?

Charles A. Rothfeld:

I think it is clearly a lack of jurisdiction in the state courts.

Under Florida law, sovereign immunity is grounded in the state constitution and under that law of Florida, as in most states, sovereign immunity entirely divests the court of subject matter jurisdiction to decide the case.

Sandra Day O’Connor:

But the court below didn’t really say we lack subject matter jurisdiction.

It said we don’t entertain Section 1983 suits.

Charles A. Rothfeld:

Well, it said this action will not lie, and it went on to say–

Sandra Day O’Connor:

Yes.

Charles A. Rothfeld:

–that Petitioner was asking the Florida courts to recognize an action under Federal law that are not… it does not otherwise recognized.

Sandra Day O’Connor:

Well, do state courts in Florida have jurisdiction over any Section 1983 claims?

Charles A. Rothfeld:

Yes, they do.

We agree that state courts routinely entertain actions against local… against officials where sovereign immunity is not a jurisdictional bar.

I think that clearly in our view what the court was doing here was applying the subject matter jurisdictional bar that is created by sovereign immunity rules.

Charles A. Rothfeld:

I think that there is no question.

I don’t understand Petitioner to disagree.

Sandra Day O’Connor:

Well, what is the extent of the waiver in Florida?

Is it a waiver as to all but discretionary torts?

Charles A. Rothfeld:

Well, let me say as a preliminary matter, I think Petitioner is not well placed to make his argument about discrimination here because he did not make it to the state courts, which could have authoritatively settled it.

Before the state courts, he argued simply that the Florida law of sovereign immunity was irrelevant in this case.

He, therefore, did not argue discrimination.

He did not even argue, for that matter, that the waiver was broad enough to permit his claim to proceed.

And the district court of appeal therefore explicitly said it was not addressing the scope of the waiver.

Because Petitioner didn’t present the argument to the state court… they could have authoritatively settled it and solved this Court the problem of investigating a complex area of Florida law… he shouldn’t be heard to complain about that now.

Beyond that, the district court of appeal clearly decided this case on the understanding that analogous claims, claims analogous to Petitioner’s based on state law, would be barred.

The court said explicitly that Petitioner was asking the state court to… the state to open its courts to Federal claims that the state does not otherwise recognize.

And in this very case, Petitioner asserted claims based on the Florida constitution, along with his 1983 action.

Both sets of those claims were dismissed which seemed to me fairly persuasive evidence that the Florida courts do not discriminate against claims based on whether they are state or Federal.

Beyond that, if the court were to look beyond the decision below to Florida law more broadly, it would find, I think, that Florida’s waiver is not discriminatory.

Sandra Day O’Connor:

Well, we’re not very well equipped to do that here.

What do we do faced with an opinion couched in this language?

Charles A. Rothfeld:

Well, I think the opinion on this point is… is clear that… and, again, quoting that petitioner is asking Florida to recognize Federal actions that the state does not otherwise recognize.

It seems to me that that is a clear conclusion on the part of the district court of appeal that there is no discrimination.

I think that conclusion by the state court about the meaning of its state law should be dispositive here in this Court.

If there is any doubt on the point… I mean, the briefs cite an enormous number of opinions from the Florida courts dismissing actions brought against the state or its political subdivisions involving circumstances quite similar to this.

I mean, if the court has doubt about the scope of Florida law, I think the solution would be to send the decision back to the Florida courts to determine whether discrimination exists, if the court thinks that that’s a dispositive factor.

But, again, I think that the decision below rests… gives the Court ample ground to conclude that Florida courts do not view discrimination to exist.

Byron R. White:

Tell me how you define the extent of the sovereign immunity that is waived, because the statute… it’s the statute that waives, isn’t it?

Charles A. Rothfeld:

That’s right.

Byron R. White:

And it says that there’s a waiver in all actions in tort for money damages against the state or its agents or subdivisions for injury or loss of property, personal injury or death caused by the negligent or the wrongful act or emission.

Charles A. Rothfeld:

I… I think that the language that Florida courts have focused on is a portion that makes the state liable in circumstances in which a priva party would be liable and the Florida courts have interpreted that, as we read their decisions, to exclude an area of governmental activity from liability.

Now, Mr. Beckett said it’s discretionary activity and not governmental activity.

But I think–

Byron R. White:

You mean… you mean… you just… you just can’t sue a city for damage to your property?

Charles A. Rothfeld:

–I think you can’t sue a city for law enforcement, public safety–

Byron R. White:

I didn’t… well… for damage to your property?

Charles A. Rothfeld:

–One can sue a city for certain types of property damage, negligent property damage–

Byron R. White:

Or intentional property damage.

Charles A. Rothfeld:

–Well, I think that the line draw by the Florida courts is very similar to the traditional distinction between governmental and proprietary actions and an action taken by a city employee which is said to make the city liable, which is of a sort that the Florida courts would characterize as governmental, as I think the action in this case is, simply will not give rise to liability.

Byron R. White:

Can they… can you… under… can you bring a suit under Florida law against a police officer for beating up… beating up a prisoner?

Charles A. Rothfeld:

Against an individual police officer, yes, who is not protected by–

Byron R. White:

Well, how about suing the city for that?

How about suing the city for the act… for that conduct of the police officer?

Charles A. Rothfeld:

–No.

I would think not because that is related to governmental activities.

It is an… an intentional violation of… well, I should say… stick with the line that the Florida courts have drawn.

And I therefore think an action would not lie.

And again in this case, Petitioner asserted both state and Federal claims as the basis for his complaint.

Both were… were dismissed, which, again, seem to me fairly persuasive evidence that this type of claim is not cognizable when based on state law in the state courts.

Again, that was clearly the view of the state court in this case.

And I think that you should be held to be dispositive of the meaning of state law.

This sort of evenhanded, nondiscriminatory application of the jurisdictional rule is the sort of thing that the Court has dealt with before, and I think it’s the sort of thing that the Court has indicated clearly is not a violation of the Federal Constitution.

The Court has addressed in a variety of settings similar to this the obligations that the supremacy clause imposes on state courts to enforce Federal statutes.

And it has routinely made clear that jurisdictional bars in the state… in the laws of the states to consideration of Federal actions are valid to permit state courts to dismiss those actions.

The Court has said repeatedly, for example, most recently in its decision this term in Tafflin v. Levitt, that state courts may entertain Federal actions when they have jurisdiction to do so under their state law and when Congress hasn’t vested exclusive jurisdiction in the Federal courts.

The Court has indicated several times in the cases that petitioner cites in Testa and McKnett and Mondou that state courts must entertain Federal actions if they have jurisdiction to do so under their state law, and if they entertain analogous state law claims.

And at the same time, the Court has held repeatedly in cases like Douglas and Mayfield and Herb v. Pitcairn that states are not obligated to disregard evenhanded limitations on their jurisdiction simply because a claim that’s presented to them is Federal.

The Douglas case presents a good example of this principle in operation.

It was a suit brought in state court under a Federal statute, the Federal Employers Liability Act.

It was brought by a foreign… by a nonresident plaintiff against a foreign corporation defendant.

It was dismissed by the state court applying a state rule that gave its courts discretion to refuse jurisdiction over actions by foreign plaintiffs against foreign defendants.

This Court upheld that rule as a valid excuse for the denial of jurisdiction, even though it precluded the state court from hearing a Federal action that had been created by Congress.

William H. Rehnquist:

What’s the name of that case, Mr. Rothfeld?

Charles A. Rothfeld:

Douglas v. New Hampshire and New York Railway.

William H. Rehnquist:

Is it… is it cited in your brief?

Charles A. Rothfeld:

It is cited in amicus brief for the National Association of Counties.

William H. Rehnquist:

Which amicus brief?

Charles A. Rothfeld:

National–

William H. Rehnquist:

Is there only one?

Charles A. Rothfeld:

–For the National Association of Counties.

And it is discussed in the other briefs as well.

Together, I think all of these lines of cases, which are discussed by Petitioner in his brief, set out a consistent reading of the supremacy clause.

They preclude states from picking and choosing Federal statutes to enforce because they don’t like some of them.

They preclude states from discriminating against Federal law for gerrymandering their rules in a way that discriminates against Federal claims.

But at the same time, they permit states to create neutral jurisdictional rules to shape their courts when those rules are applied evenhandedly to state and to Federal claims.

William H. Rehnquist:

Should… should it really be based on the question of whether the state courts have jurisdiction of… of these other actions?

I mean, what… what if a state says, you know, this… our courts are courts of general jurisdiction.

They have jurisdiction of almost any action that could be brought.

But there is a defense of sovereign immunity available to various state agencies and governmental agencies if you’re filing a claim for… under a state law for a tort.

And we think the same sort of rule should be applicable if you’re bringing an action under Section 1983.

Charles A. Rothfeld:

Well, I… the Court has discussed these cases in jurisdictional terms, and that’s why we are emphasizing jurisdiction here.

I mean, in the Mayfield, another one of the cases that follows from Douglas, and the Court said… and, again, quoting from the Court’s opinion that… that when the state denies resort to its courts for reasons of local policy and applies that policy impartially, that is valid.

The Court didn’t explicitly hedge that in terms of jurisdiction and I’m not sure, therefore, it’s necessary to do so.

But the reason I think that it’s useful to view this case in jurisdictional terms is not only because the Florida courts clearly view sovereign immunity as jurisdictional, but because as a matter of intent of Congress in writing a statute like 1983, I think it seems to us quite clear that Congress did not have it in mind to override neutral jurisdictional limitations on powers of state courts to entertain claims.

Antonin Scalia:

Well, suppose instead a Florida statute says that no Florida court shall have jurisdiction to render judgment against… against a state agency or officer in his official capacity for more than $10,000?

Charles A. Rothfeld:

Well–

Antonin Scalia:

That’s the way it phrased… it’s phrased.

Would there then be a $10,000 limit on… on 1983 recovery?

Charles A. Rothfeld:

–Well, I think that that would be a more… much more difficult case than this one, Justice Scalia.

Antonin Scalia:

Why?

Charles A. Rothfeld:

I think that the analysis that the Court has used in cases like this… and let me set out a range of cases which are I think are… are instructive.

In cases like Felder and Martinez, which Petitioner relies upon, where Federal courts entertained actions under 1983, under any Federal statute, issue in that case is the meaning of the Federal statute.

The elements of the cause of action, the defenses to the statute, are Federal questions.

And Felder is a good example of that.

Charles A. Rothfeld:

The procedural rule there was essentially an exhaustion of remedies requirement.

The Court said Congress addressed that in 1983 and excluded exhaustion as a element of the action.

Therefore, the state’s requirement in that action, its attempt to modify the 1983 action, is preempted.

The question in a case like that is one of congressional intent, as in any preemption analysis.

I think that this case, a jurisdictional… a classic jurisdictional case presents a very different sort of question.

A cause of action is not typically understood to preempt a limitation on the jurisdiction of courts or to conflict with the limitation on the jurisdiction of courts.

And I think, again, cases like Douglas and Mayfield and Herb against Pitcairn show that in this setting, where there are state jurisdictional limitations and a Federal action, the action typically takes the state courts as it finds them.

Now, the case that you hypothesize is sort of a middle case between those two sets of principles.

It’s a… it’s a case where the state entertains the 1983 action.

And it entertains analogous state law actions.

And I think the question of whether Congress would have wanted to preempt the limitation that you describe, even though it’s… it’s made by the court… by the state in jurisdictional terms, would be a more difficult question than the one here.

Now, my… my answer would be Congress should not be deemed to have wanted to override jurisdictional limitations of that sort, and however the court wants to cabin the jurisdiction of its courts, that should be dispositive.

But again, that is a closer question than this one.

There is no question that this sort of sovereign immunity limitation has always been regarded as jurisdictional, prior to the ratification of the Constitution.

So there is not question here of the courts–

John Paul Stevens:

May I ask about the jurisdictional character?

Is it a jurisdictional defect that the school board itself could waive?

Charles A. Rothfeld:

–Apparently not.

There is… there is some–

John Paul Stevens:

Do you think the school board… the school board answered and the judgment was entered against it and then three years later they could come in and vacate the judgment on the ground that they really didn’t have authority to waive jurisdiction?

Charles A. Rothfeld:

–My… my understanding of the most recent Florida law is that the waiver is not possible.

There is long-standing Florida authority that the legislature must waive sovereign immunity of–

John Paul Stevens:

It’s even more jurisdictional than the Eleventh Amendment would be in a case involve… brought in the Federal case?

I mean, it’s strict rule of jurisdiction in here?

Charles A. Rothfeld:

–I think that… that is reflective of the most recent law in Florida.

Yes.

John Paul Stevens:

Which case do think most strongly supports that proposition that… by the Florida Supreme Court?

Charles A. Rothfeld:

There was a recent case of the Florida District Court of Appeal and I am afraid I can’t give you the name.

I’ll be happy to–

John Paul Stevens:

But is there Supreme Court of Florida authority for the proposition that–

Charles A. Rothfeld:

–The Supreme Court of Florida has recently denied to answer a certified question on that point by a state court–

John Paul Stevens:

–But has the Supreme Court of Florida spoken on the point that you’re relying so heavily on?

Charles A. Rothfeld:

–Not to my knowledge.

Although I… I am not… I’m not–

John Paul Stevens:

So you’re relying on intermediate court opinions?

Charles A. Rothfeld:

–Well, I’m not relying on the… absence of the an ability to waive.

I am relying on the fact that–

John Paul Stevens:

What is the strongest Supreme Court of Florida authority that you have for the basic proposition that this is a jurisdictional matter and not something that can be waived?

Charles A. Rothfeld:

–Offhand, Your Honor, I can’t cite you a case.

I’ll be happy, as I say, to… to inform–

John Paul Stevens:

No, you don’t.

If you haven’t got it yet, why–

Charles A. Rothfeld:

–Well, no, we cite a number of cases in our… in the briefs in this case.

John Paul Stevens:

–I… the opinion before us in this case is not quite as clear as you suggest it is, I don’t think.

Charles A. Rothfeld:

Well, I think it is… it is quite clear that the Florida courts do regard sovereign immunity as a defect in subject matter jurisdiction.

I mean, the Eleventh Amendment is as well regarded as a defect and subject matter jurisdiction.

John Paul Stevens:

Again, what is the strongest Supreme Court of Florida opinion supporting that proposition?

Charles A. Rothfeld:

Well, the question is that can be raised at any time?

Or–

John Paul Stevens:

Well, the one you said it’s definitely a jurisdictional defect.

Charles A. Rothfeld:

–Well, that one case that is cited in the briefs in this case is Schmauss v. Snoll, which is an actually an intermediate court opinion of Florida–

John Paul Stevens:

I have been inquiring about supreme court opinions–

Charles A. Rothfeld:

–No, I–

John Paul Stevens:

–and I guess there really aren’t any right on point, are there?

Charles A. Rothfeld:

–Well, I… it seems to me, Your Honor, that the intermediate court opinions establish Florida law for purposes of this Court, for the purposes of the Federal court determining what Florida law means.

I think that what the views of what an intermediate Florida court are–

John Paul Stevens:

Let me just get one other thing clear in my mind that, had this case been brought in the Federal court, your defense would not be valid in Federal court.

You agree with that, don’t you?

Charles A. Rothfeld:

–Yes.

That’s right.

Charles A. Rothfeld:

The state jurisdiction–

John Paul Stevens:

Your reason for saying this is not discrimination against the Federal cause of action is because you say comparable claims in the state court would also be dismissed?

Charles A. Rothfeld:

–That’s right.

William H. Rehnquist:

Is… is the case you refer to in your colloquy with Justice Stevens, Schmauss against Snoll, is that cited in your brief?

Charles A. Rothfeld:

This, again, is cited in the amicus briefs in the case.

William H. Rehnquist:

And that you regard as the strongest case from the district court of appeal on this question of jurisdictional?

Charles A. Rothfeld:

It’s the strongest case that… that is cited in the briefs in this case.

I think there are a great many cases.

Another case which is cited in the briefs in this case is one called Kaisner v. Kolb.

I think that there is no disputing the proposition.

I am sorry that I can’t cite a case from the Supreme Court of Florida, but I am sure that the supreme court has recognized that.

In the Hill case, which is a case from the Supreme Court of Florida, which the district court of appeal relied on in this case, I think there are strong indications that it is jurisdictional.

Harry A. Blackmun:

Mr. Rothfeld, when you refer to the amicus brief, you mean the one that bears your name.

Charles A. Rothfeld:

That is right, Your Honor.

Harry A. Blackmun:

Because there is more than one here.

Charles A. Rothfeld:

Well, the amicus brief for the National Association of Counties, as well as other… other clients.

I think, again, to return Justice Stevens, lest there be any doubt on this point, I think that there is no question that the Florida courts regard the absence of subject of… well, regard sovereign immunity as establishing a jurisdictional defect which goes to the subject matter jurisdiction of the state courts.

I think that Petitioner does not take issue with that proposition.

John Paul Stevens:

And you… you mean it’s subject matter jurisdiction in the sense that even if they didn’t… if they answered and they went to trial and they got a judgment entered against them and then five years later they could come in and set aside the judgment, it that… that strict sense?

Charles A. Rothfeld:

That is my understanding of the–

John Paul Stevens:

You think that’s clear from the Florida cases.

Charles A. Rothfeld:

–Well, I think that… as I say, the latest authority in Florida establishes that proposition.

John Paul Stevens:

But your… your position is that it wouldn’t matter.

It would still… even if it were jurisdictional in a lesser sense of jurisdiction, it could be waived as Eleventh Amendment jurisdiction.

Charles A. Rothfeld:

That is absolutely… is absolutely right.

I mean, our position… I mean, the question in this case, of course, is whether the state has to entertain the claim in the first instance.

And if it does not entertain analogous state law claims, as it does not, we think it shouldn’t… it isn’t… under no Federal obligation, constitutional or statutory, to entertain the claim here.

John Paul Stevens:

I’m still not quite clear on why the jurisdictional argument makes a difference from Justice Scalia’s example of, say, a $10,000 ceiling on recovery.

That would be equally nondiscriminatory.

Now, why would one raise a different Federal question than the other?

Charles A. Rothfeld:

Well, I… I think that the question is whether Congress has wanted to set aside a limitation on the jurisdiction of the… of the court simply by enacting a cause of action and–

John Paul Stevens:

But, I mean, in his example was the state statute purportedly says no state court shall have jurisdiction to enter a judgment in excess of $10,000.

Charles A. Rothfeld:

–No.

I… I… that… that’s correct Justice Stevens.

And my answer to Justice Scalia ultimately was that although it was a closer question for the reasons I stated, I think that that would be a valid bar on the jurisdiction–

John Paul Stevens:

I guess the thing I don’t understand is why it’s a closer question from your point of view.

Charles A. Rothfeld:

–Well, a closer question I think only because since the state court is entertaining the action, the question of whether Congress would have wanted to sweep away limitations on that action–

John Paul Stevens:

Well, would this be a different case if in addition to the school board they also had the police department so there were two defendants, so they entertained the action but the question whether they can bring it against a particular defendant.

Why… would that make it different?

There would be subject matter jurisdiction of the claim but no jurisdiction to enter judgment against the school board.

Charles A. Rothfeld:

–Well, I think that the Court would be open to adjudicate the claim as it is against the individual, but not against a party as to whom it lacks jurisdiction… as to whom a judgment cannot run because of it lacks jurisdiction to enter a judgment against that party.

Because it–

John Paul Stevens:

I don’t see–

Charles A. Rothfeld:

–lacks jurisdiction to entertain–

John Paul Stevens:

–why that’s different from lacking jurisdiction to enter an $11,000 judgment.

I just don’t quite… I just don’t follow the argument.

I guess maybe I’m thick.

Charles A. Rothfeld:

–Well, let me… let me move away from that hypothetical because I think the case here is a clear one because, as I said, there is no doubt that sovereign immunity not only is viewed in Florida as being jurisdictional but that it is… historically, traditionally been viewed in all jurisdictions as going to the jurisdiction of the court.

So that… I mean, there is no question here, again, of the states playing semantic games with its statutes to frustrate Federal actions.

This is a long-standing… long-standing immunity lack of authority in the state courts, which is grounded in the Florida constitution.

And it seems highly unlikely that… well, I should say answer… make two points.

It seems (a) highly unlikely that Congress would have wanted to sweep away such a jurisdictional limitation simply by enacting a cause of action, as it did in 1983.

And, secondly, the supremacy clause clearly under this Court’s precedence of its own force does not impose an obligation on the state courts to entertain actions under those circumstances.

And let me address the meaning of 1983 in particular because that’s something that Petitioner I think sort of runs away from and… and for a very good reason.

It is quite clear that when Congress enacted 1983, it was not intending to impose special burdens on the state courts or force litigation into the state courts.

As Justice O’Connor pointed out in her opinion in Felder, when the statute was originally enacted it vested exclusive jurisdiction in the Federal courts.

And while that exclusivity has been stripped away during the course of routine housekeeping revisions of the judicial code in subsequent years, there is no indication in the language of 1983, or any other Federal statute or in any of the legislative history, that Congress intended to force litigation into the state courts.

To the contrary, I think it is established beyond any dispute, the statute was enacted precisely because Congress mistrusted the state courts, because Congress wanted to create a Federal court remedy for deprivations of constitutional rights.

And the Court has said over and over, it has become almost a truism that Congress constituted the Federal courts the primary vehicles for enforcing Section 1983.

It seems very hard to believe that a statute written with that goal in mind was designed to impose a special, unusual obligation on state courts to disregard the neutral limitations on their jurisdiction.

Byron R. White:

Mr. Rothfeld, suppose… suppose Florida said our courts are closed to any kind of tort suits against prison officials or guards.

We just don’t want suits to be brought in our courts, and we close our courts to those kinds of suits.

But they don’t close the courts to suits against policeman.

Charles A. Rothfeld:

If… if… if the courts where closed in actions against prison officials, based on state law as well as on Federal law so that clearly analogous claims were being excluded and there were no… there was no sign that the state meant to discriminate against Federal claims, I would think that would be a valid limitation on the jurisdiction.

Byron R. White:

Even though they entertain similar suits against all other officials.

Charles A. Rothfeld:

I think that’s right.

And I think that the purpose of the requirement that the state not exclude analogous claims, as the Court has said in cases like Testa and Mondou, the cases that Petitioner relies upon, is to–

Byron R. White:

Do you think there might be an equal protection issue?

Charles A. Rothfeld:

–I would think not, Your Honor, if the… in the Martinez v. California case, there was a similar limitation on state claims–

John Paul Stevens:

I think your view would say that they could… they could also immunize parole board officials, too, from parole release decisions.

Charles A. Rothfeld:

–I would think they could vest their courts of jurisdiction.

John Paul Stevens:

Divest them of jurisdiction over the kind of claim that was asserted in Martinez.

Charles A. Rothfeld:

If it is done evenhandedly, if it applies to state law claims as well, I would think that it… they could.

John Paul Stevens:

Well, that case, of course, it did.

That was a state statute applied to state… state cases just like Federal cases.

I think you’re saying Martinez is wrong.

Charles A. Rothfeld:

No.

I am not, Your Honor, and let me be clear on why I am not and this goes to my response to Justice Scalia.

Perhaps I didn’t make that clear.

I think that when… when the state court entertains an action… when it entertains a Federal action as it did in Martinez, it had jurisdiction to do so and there was no question about that, the state is obligated to analyze the meaning of the Federal statute in Federal terms.

The elements of the statute and the defenses to statute are Federal questions.

In Martinez itself, the Court, while holding as you say, that the state immunity rule was inapplicable in a 1983 action, also expressly reserved the question whether states could exclude 1983 claims altogether–

John Paul Stevens:

Altogether.

Charles A. Rothfeld:

–And suggested in… in its discussion that the test there was whether analogous claims based on state law were excluded, citing to Testa v. Katt.

And I think–

John Paul Stevens:

Yes, but it also quoted from a Seventh Circuit opinion which is somewhat inconsistent with your argument.

[Laughter]

Charles A. Rothfeld:

–To that point, I can’t speak, Your Honor.

But I think that the Seventh Circuit citation went directly to the question of whether or not a defense in an action entertained in state court would be a Federal question or a state question.

And again, I think that is analyzed in standard preemptions terms of congressional intent.

Charles A. Rothfeld:

Since it is a Federal question, what the Federal statute needs, the question of whether any defense or any modification of the cause of action or procedural exhaustion requirement or whatever is valid must be a Federal question, and it turns on what Congress meant when it wrote the statute.

The precedent question of whether or not the case can get into state court in the first place is a different question.

If Congress had wanted in 1983, not only to create a cause of action, open to the same extent that state court causes of action are, but had also wanted to override limitations on state court jurisdiction, it would in terms have said so.

It would have said state courts must entertain these actions, notwithstanding limitations on your jurisdiction.

But it plainly… plainly didn’t do any such thing, in fact, as I said when I wrote the statute, it vested exclusive jurisdiction in the Federal court.

So Petitioner, I think, is forced to fall back on some much more general proposition that jurisdictional barriers to Federal claims are never valid when they are served in the state court.

The Court has already rejected that proposition.

Antonin Scalia:

Mr. Rothfeld, just out of curiosity, why would a plaintiff want to get into state courts rather than Federal courts, outside of docket problems, you know, backlog problems?

Charles A. Rothfeld:

I would think outside of those problems, it is not clear to me, Your Honor, since as I have been stating the elements of the claim are entirely identical whether in state or Federal court.

I mean, there are always an element of the forum shopping when there are… when there’s concurrent jurisdiction and two courts are open.

But beyond that I can’t… Mr. Beckett will have to give you a response to that.

I should add, finally, that the fact that Congress did not vest jurisdiction in the state courts suggests the balance of interest that the Court should bear in mind when it decides this case.

It would be an extraordinarily intrusive thing for Congress to require state courts to entertain claims when they lack jurisdiction to do so.

It has been a fundamental prerogative of the sovereign to determine what courts are… what claims are heard in the sovereign’s own courts and for Congress to set that aside would be a rather surprising thing.

And I think the court would look for a clear express that Congress had that in mind in writing the statute like 1983.

On the other side of the balance of interest, there is not much… the Federal… Federal interest here is relatively unsubstantial.

Federal courts are open to entertain actions like this.

Under 1983 in particular, the Federal courts were made the primary vehicles for entertaining actions like this, and it should not be the law, I think, that a statute like 1983 overrides neutral limitation on the jurisdiction of state courts.

And that is not the law.

Just two months ago in its Tafflin decision the Court said that state courts have concurrent jurisdiction over Federal claims whenever by their own constitution they have power to do so.

William H. Rehnquist:

Thank you, Mr. Rothfeld.

Mr. Beckett, do you have rebuttal?

You have four minutes remaining.

Gardner W. Beckett, Jr.:

Thank you, Your Honor.

The fourth case that I would have cited in this Court’s line of what we call intermediate cases where there is an entertaining in the state court of a similar cause of action is Testa.

And Testa was a decision written in 1947 by Justice Black and it, I think, contains important language on the question on which we’re thrashing around here about jurisdiction.

In Testa, Justice Black said it doesn’t make any difference how you characterize the defense.

Whether you put it on jurisdictional grounds or was done in Testa, on the ground that the Federal government was a foreign sovereign and, therefore, the state of Rhode Island would not enforce a foreign penal statute.

The… Justice Black answered that by saying from the Federal viewpoint how you characterize it is immaterial.

The question is do you have a Federal cause of action which, had it not been Federal rather than state, would have been enforced.

Gardner W. Beckett, Jr.:

And the answer was yes.

Rhode Island had a similar statute.

The other argument in that connection is a slight misapplication of the idea of the neutral rule, that if a… this claim should be barred because the court does not otherwise entertain this type of claim.

The question is whether it entertains the class of claims, which it does.

It entertains tort claims.

Therefore, under the authorities I cited, the fact that it wants to eliminate the Federal claim means it’s doing it only on a Federal–

Byron R. White:

xxx example of Florida attempting to immunize from suit only prison officials just wouldn’t work.

Gardner W. Beckett, Jr.:

–It wouldn’t work because once Florida creates a class as the… Justice Brandeis said, the Alabama courts, the courts of general jurisdiction, they can entertain these claims, it must entertain this claim and not discriminate merely because it’s Federal.

Antonin Scalia:

That just all depends upon how you want to define the class.

Gardner W. Beckett, Jr.:

That’s precisely correct, Your Honor, and that’s where–

Antonin Scalia:

Don’t say it’s precisely correct.

It means that your point doesn’t mean anything.

Gardner W. Beckett, Jr.:

–It’s… if we–

Antonin Scalia:

I mean… you… you… you can define the class as prison officials or you can define the class as tort claims.

Gardner W. Beckett, Jr.:

–You cannot define it simply as the class which is excluded.

It has to be defined as membership in a class which is recognized and enforced.

William H. Rehnquist:

What about membership in a class of lawsuit defendants?

You know, it really just depends of what level of generality you’re talking about.

Gardner W. Beckett, Jr.:

That’s correct and we think that there is guidance from this Court on that point.

The other argument that we have in our brief which this Court I think would be interested in is the so-called half-loaf argument.

It’s quite clear from such cases as Maine against Thiboutot and Felder that once the state courts entertain a 1983 action, they may not give a half loaf.

And in effect, that’s what they are doing in this case.

They say we will entertain it, but we won’t entertain it against the school board.

The question is when you entertain it, must you bring with the Federal cause of action all of the baggage that it has.

And that answer to that is yes and in this case the liability of the school board is established by this Court’s decision in Doyle against the Mt.

Healthy School Board.

William H. Rehnquist:

Thank you, Mr. Beckett.

The case is submitted.