State Athletic Commission v. Joseph Dorsey, Jr. Petition for Rehearing on Behalf of Appellant

    IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1958

No. 787

STATE ATHLETIC COMMISSION,

versus
Appellant,

JOSEPH DORSEY, JR.,
Appellee.

Appeal from the United States District Court for the 
Eastern District of Louisiana, New Orleans 

Division.

PETITION FOR REHEARING ON BEHALF OF 
APPELLANT.

JACK P. F. GREMILLION,
Attorney General,

State of Louisiana,
Capitol,
Baton Rouge, Louisiana; 

GEORGE PONDER,
First Assistant Attorney General, 

State of Louisiana,
Capitol,
Baton Rouge, Louisiana; 

WILLIAM P. SCHULER,
Assistant Attorney General, 

Supreme Court Building,
New Orleans 12, Louisiana, 

Attorneys for State Athletic Commission, 
Appellant.

Montgomery & Co., “The Brief Specialists” , 430 Chartres St„ N. O., La.



INDEX.
Page

GROUND FOR REHEARING ............................... 1

CONCLUSION ...........................................................  7

CERTIFICATE OF SERVICE PURSUANT TO 
RULE 33 OF THE RULES OF THE SU­
PREME COURT OF THE UNITED STATES 8

CERTIFICATE OF COUNSEL PURSUANT TO 
RULE 58 OF THE RULES OF THE SU­
PREME COURT OF THE UNITED STATES 9



2

The matters for consideration herein represent the 
problem of construction, interpretation, and application 
of the tenth, eleventh and fourteenth amendments to the 
U. S. Constitution.

(a) The sole defendant, as previously pointed out, 
was the Louisiana State Athletic Commission which is not 
an individual, nor a corporate entity authorized by the 
Legislature to sue or be sued. It is simply a bureau or 
agency of the State of Louisiana and as such, not a juridi­
cal person.

Appellant has already conceded and must continue 
to so concede that under a long line of jurisprudence, this 
suit might have been instituted against the members of the 
Athletic Commission if they were either exceeding their 
legal authority or acting under powers conferred by an 
unconstitutional statute. A careful study of the Federal 
jurisprudence convinced appellant that a suit directed 
solely against it was prohibited by the mandatory provi­
sions of the eleventh amendment to the United States Con­
stitution.

Maybe this Court did not feel that the interpreta­
tion of the jurisprudence by appellant was valid or pre­
sented a substantial question as to the jurisdiction of the 
district court. Possibly the Court believed that the cases 
cited by appellee decided by the fourth and fifth1 circuits 
represents federal jurisprudence as a whole. Appellant 
pointed out earlier that the logic used in these cases is 
doubtful, and the following cases point up the fact that 
other Courts agree with appellant that an agency or ad­
ministrative body may not be sued.
i School Board of Charlottesville v. Allen, 240 F. (2d) 59 (C. A ., 4, 

1956) ; Orleans Parish School Board v. Bush, 242 F. (2d) 156 
(C. A ., 5) Cert, den., 1957, 354 U. S. 921.



3

The Louisiana Land and Exploration Company v. 
State Mineral Board, 229 F. (2d) 5 (CA, 5, 1956) :

“ This brings us to a consideration of appellant’s 
second point which is that the Eleventh Amend­
ment is inapplicable and does not bar the present 
suit against a State agency which wrongfully has 
exceeded its statutory authority. This contention 
is likewise without merit for the reason that the 
complaint is directed against the State Mineral 
Board in its official capacity, not against its mem­
bers individually, and because the acts complained 
of are not without, but clearly within the Board’s 
statutory power,”  (Emphasis supplied).

Blackmar v. Guerre, et al., 342 U. S. 512, 72 S. Ct. 
410 (1952):

“ Since the Civil Service Commission is not a cor­
porate entity which Congress has authorized to be 
sued, a suit involving the action of the Commis­
sion generally must be brought against the individ­
ual Commissioners as members of the United States 
Civil Service Commission. No such suit was 
brought here, and no service was had upon the in­
dividuals comprising the Civil Service Commission. 
Therefore, neither the individuals comprising the 
Civil Service Commission nor the Commission as a 
suable entity was before the District Court.”  (Em­
phasis supplied).

Aerated Products Co. of Philadelphia, Pa. v. De­
partment of Health of New Jersey, et al, 159 F. (2d) 851, 
(C. A., 3, 1947) :

“ The Eleventh Amendment of the Federal Consti­
tution denies to federal courts the jurisdiction over



4

suits against a State by citizens of another State. 
The Department is a part of the executive branch 
of the New Jersey government. Revised Statutes 
of New Jersey of 1937, 26 :-2-l, et seq., N.J.S.A.; 
Board of Health v. Mundet Cork Corporation, 1939,
126 N. J. Eq. 100, 8 A. (2d) 105, affirmed 1940,
127 N. J. Eq. 61, 11 A. (2d) 260. Consequently, 
we agree with the court below that plaintiff’s suit 
against the Department is prohibited by the 
Eleventh Amendment. Ford Co. v. Department of 
Treasury, 1945, 323 U. S. 459, 65 S. Ct. 347, 89 
L. Ed. 389.

“As to Mahaffey, the rule is equally clear that his 
function as a public official brings him within the 
protection of the Eleventh Amendment only if the 
statutes authorizing his actions are constitutional, 
and if his actions do not exceed the authority 
granted him. Baldwin v. G. A. F. Seelig, 1935,
294 U. S. 511, 55 S. Ct. 497, 79 L. Ed. 1032, 101 
A.L.R. 55. If the activities of Mahaffey are in 
violation of a right guaranteed by the federal Con­
stitution, this court has jurisdiction to enjoin such 
violation.” (Emphasis supplied).

United States Department of Agriculture, et at., v. 
Hunder, et al, 171 F. (2d) 793, (C. A., 5, 1949) :

“ While cases may be found in which a department 
or bureau of the Government has been suffered to 
assert rights, the Department of Agriculture is not 
truly a juridical person, being neither an individ­
ual nor a corporation. It is an agency of the Gov­
ernment, not empowered to sue, or to be sued in



5

evasion of sovereign immunity. See United States 
Dept, of Agriculture v. Remund, 330 U. S. 539, 
541, 67 S. Ct, 891, 91 L. Ed. 1082. The Secretary 
however is a person. If he by affirmative act ex­
ceeds his lawful authority or threatens to do so, 
to the injury of established rights, he may be en­
joined, for in such circumstances he is not truly 
representing the Government.”  (Emphasis sup­
plied).

New Haven Public Schools v. General Services Ad­
ministration, 214 F. (2d) 592, (C. A., 7, 1954) :

“ It is admitted that the two defendants dismissed 
by the District Court are agencies of the executive 
branch of the United States government. In other 
words, they are administrative departments of the 
government. It has long been established that such 
agencies are not truly juridical persons but are 
strictly representatives of the government, who may 
not be sued in evasion of sovereign immunity. 
United States Dept, of Agriculture v. Remund,
330 U. S. 539, 541, 67 S. Ct. 891, 91 L. Ed. 1082; 
Herren v. Farm Security Administration, 8 Cir.,
153 F. (2d) 76; Thomason v. Works Progress Ad­
ministration, 9 Cir., 138 F. (2d) 342; North 
Dakota-Montana Wheat Growers’ Ass’n v. United 
States, 8 Cir., 66 F. (2d) 573, 92 A. L. R. 1484, 
certiorari denied 291 U. S. 672, 54 S. Ct. 457, 78 L.
Ed. 1061.”

“Plaintiff seeks to escape the effect of this rule for 
the reason, as it argues, that the suit is controlled 
by decisions in actions rightfully brought against 
individual governmental officers. It is fatal, we



6

think, to this contention that no officers were 
named as parties or served with process. Indeed, 
such officers are subject to suit only in the District 
of Columbia. Blackmar v. Guerre, 342 U. S. 512,
72 S. Ct. 410, 96 L. Ed. 534. The District Court 
properly held that it did not have and could not 
entertain jurisdiction over the agencies.” (Em­
phasis supplied).

As a result of the action of this Court in affirm­
ing the judgment of the District Court without opinion, 
the law with regard to the application and construction 
of the eleventh amendment is confused and unsettled. It 
is impossible to determine whether the previous jurispru­
dence, some of which is cited hereinabove, has been over­
ruled, disregarded as not applicable or distinguished. In 
the interest of justice to the State of Louisiana as well as 
conformity and certainty in the interpretation and con­
struction of the eleventh amendment, it is incumbent upon 
this Court to decide this matter by written opinion after 
full and complete briefing and argument thereon.

(b) There can be no doubt that the area of en­
deavor encompassed herein is entirely foreign to the mat­
ters previously decided by this Court, and that the regu­
lation of professional boxing is within the police power 
of the State conferred by the tenth amendment to the 
United States Constitution. In addition to the cases al­
ready cited by appellant, the courts of Rhode Island and 
Georgia have held that the permission to engage in con­
tests of this nature confers no right of which one may 
be deprived.

Zannelli v. Di Sandro, et al., 121 A. (2d) 652 
(Sup. Ct., R. I., 1956);



7

Ward v. Drennon, et al. , '40 S. E. (2d) 549 
(Sup. Ct., Ga., 1946).

CONCLUSION.

Considering the argument and jurisprudence set 
forth in this petition as well as that in the jurisdictional 
statement and opposition to Motion to Affirm, it is sub­
mitted that this Court should reconsider its ruling affirm­
ing the District Court and entertain appellant’s jurisdic­
tional statement and place this suit upon the appellate 
docket of this Court, and after a briefing and rehearing 
thereon reverse the judgment of the District Court.

Respectfully submitted,

JACK P. F. GREMILLION,
Attorney General,

State of Louisiana,
Capitol,
Baton Rouge, Louisiana;

GEORGE PONDER,
First Assistant Attorney General, 

State of Louisiana,
Capitol,
Baton Rouge, Louisiana;

WILLIAM P. SCHULER,
Assistant Attorney General, 

Supreme Court Building,
New Orleans 12, Louisiana, 

Attorneys for State Athletic Commission, 
Appellant.



8

PROOF OF SERVICE.

I, William P. Schuler, one of the attorneys for Lou­
isiana State Athletic Commission, appellant herein, and a 
member of the Bar of the Supreme Court of the United
States, hereby certify that on th e ______ —_ day of June,
1959, copies of the foregoing Petition for Rehearing 
on behalf of appellant were served on the plaintiff herein 
by mailing same in duly addressed envelopes with first 
class postage prepaid to his attorneys of record, as follows:

To Louis Berry,
4226 South Central Avenue,
Los Angeles 11, California (Air M ail);

To Israel M. Augustin, Jr.,
Prudhomme F. DeJoie,

1470 No. Claiborne Avenue,
New Orleans 16, Louisiana;

To Thurgood Marshall,
Jack Greenberg,

Suite 1790,
10 Columbus Circle,
New York, N. Y. (Air Mail).

0

WILLIAM P. SCHULER, 
Assistant Attorney General, 

. State of Louisiana.



9

CERTIFICATE OF COUNSEL.

I, William P. Schuler, counsel for the above-named 
petitioner, do hereby certify that the foregoing petition for 
rehearing is presented in good faith and not for delay, 
and that it is restricted to the grounds specified in Rule 
58, subdivision 2, of the Rules of this Court.

Counsel for Petitioner.