Skoblow v Ameri Manage Inc Petition for Writ of Certiorari

    No. 87-

In  THE

g>uprrmr (tart of tlir H&mUb ^tatrs
Octobeb T eem, 1987

Maubice S koblow,
Petitioner,

v.
A mebi-Manage, I nc.,

Respondent.

PETITION FOR WRIT OF CERTIORARI 
TO THE SUPREME COURT OF FLORIDA

R obebt W eisbebg 
D avid L ipman

Lipman & Weisberg, P.A. 
Suite 304
5901 S.W. 74th Street 
Miami, Florida 33143 
(305) 662-2600

S habon W olfe
Cooper, Wolfe &

Bolotin, P.A.
500 Roberts Building 
28 W est Flagler Street 
Miami, Florida 33130 
(305) 371-1597

J ulius L eV onne Chambebs 
Eeic S chnappeb*

NAACP Legal Defense 
Fund, Inc.

99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900

Attorneys for Petitioner

#Counsel of Record



QUESTIONS PRESENTED
1. Does the Eleventh Amendment, or 

any other constitutional doctrine, confer 
upon the states immunity from suits 
brought by their own citizens?

2. Should Hans v. Louisiana. 134
U.S. 1 (1890) or Quern v. Jordan. 440
U.S. 332 (1979), be overruled?

3. Did Congress, in enacting the 
1871 Civil Rights Act, intend to 
authorize section 1983 suits against 
states in state court?

i



PARTIES
The petitioner in this Court is 

Maurice Skoblow. The respondent is 
Ameri-Manage, Inc., a Florida corporation 
which the state courts below concluded 
was, for Eleventh Amendment purposes, an 
agency of the state of Florida.

In the proceedings below petitioner 
also sought relief against six 
individuals: Robert A. Burton, John
Pitrelli, Elsa Dominguez, Barbara 
McMurtrey, Jackie Dale and Paul Uhrig. 
The claims against those individuals were 
dismissed on grounds unrelated to the 
Eleventh Amendment issue which is the 
subject of this petition.

ii



TABLE OF CONTENTS

1

P a g e
Questions Presented
Parties .....................  ii
Table of Contents ...........  iii
Table of Authorities ........  v
Opinions Below ..............  2
Jurisdiction ................  2
Constitutional and Statutory

Provisions Involved.......  3
Statement of the Case .......  3
Reasons for Granting the

Writ .....................  9
Conclusion ..................  42

APPENDIX
Florida Supreme Court 

Opinion, Spooner v.
Department of Correc­
tions and Skoblow v.
Ameri-Manage, Inc.,
September 24, 1987, 
rehearing denied
December 1, 1987 .........  la

iii



Page
District Court of Appeals of 

Florida opinion, Skoblow 
v. Ameri-Manage, Inc. 
(February 18, 1986) ......

Order of Florida Circuit 
Court Granting Partial 

Summary Judgment,Skoblow v. Ameri-Manage, 
Inc. (June 27, 1985) ....

5a

19a



TABLE OF AUTHORITIES
Cases: Paae
Alabama v. Pugh, 438 U.S. 781 (1978).................... 33
Atascadero State Hospital 

v. Scanlon, 473 U.S. 234
(1985).................. 16,17,

21,28
Bailey v. Ohio State Univer­

sity, 487 F. Supp. 601 
(S.D. Ohio 1980)........ 34

Board of Regents v. Roth, 408 
U.S. 564 (1972)..........

Boldt v. State, 305 N.W.2d 
133, 101 Wis.2d 566,

6

cert, denied 454 U.S. 973 
(1981)...................  32,38
Brody V. Leamy, 393 N.Y.S.2d

243, 90 Misc.2d 1 (Sup. Ct. 
Dutchess Cty. 1977)....... 12,39

Brown v. Supreme Court of 
Nevada, 476 F. Supp. 86 
(D. Nev. 1979)............ 34

Brown v. Wood, 592 P.2d 1260 
(Alaska 1979)............. 30,37

Codd v. Velger, 429 U.S. 624 
(1977).................... 6

v



Cohens v. Virginia. 6 Wheat.
264 (1821)...............  19,20

Della Grotta v. State of Rhode 
Island, 781 F.2d 343 (1st 
Cir. 1986).................  34

DeVargas v. State, 97 N.M.
563, 640 P.2d 1327
(Ct. App. 1981)...........  33,37

Edelman v. Jordan, 415 U.S.651 (1974)................  10,15,20,27,29,33,40
Edgar v. State, 92 Wash.2d217, 595 P. 2d 534 (1979)... 33,35
Employees v. Missouri Public

Health Dept., 411 U.S. 279
(1973).......................  10,14,21,22,26,27
Fitzpatrick v. Bitzer, 427

U.S. 445 (1976)........... 15
Florida Dept, of State v.

Treasure Salvors, Inc.,
458 U.S. 670 (1982)......  15,17

Gittens v. State, 504 N.Y.S.
2d 969 (Ct. Cl. 1986).....  12

Gumbhir v. Kansas State 
Bd. of Pharmacy, 646 
P. 2d 1078, 231 Kan. 507

(1982)....................  29,31,36

vi



Page
Hampton v. State of Michigan 

Dept, of Corrections, 377
N.W .2d 920, 144 Mich.
App. 794 (1985)...........

Hans v. Louisiana, 134 U.S. 1
29,32,35,

37,38
(1890)................... Passim

Hill v. Department of
Corrections, 513 So.2d 
129 (Fla.. 1987).......... 9,40

Hutto v. Finney, 437 U.S. 678 
(1978))................... 17,25

Irwin v. Calhoun, 522 F. Supp. 
576 (D. Mass. 1981)....... 34

Kapil v. Ass'n of Pa. State 
College, 448 A.2d 717,
68 Pa. Commonw. 287 

(1982).................... 32
Karchefske v. Dept, of Mental 

Health, 371 N.w. 2d 876 
(Mich. App. 1985).........

Kristensen v. Striden, 343
31,32,
36,38

N.W.2d 67 (N.D. 1983)..... 29,32,35
Maine v. Thiboutot, 448 U.S.

1 (1980)..................
Maldonado v. Nebraska Dept, 

of Public Welfare, 223

24,25,30,
38,39

Neb. 485 (1986)........... 30

vii



Cases: Paqe
Marrapese v. Rhode Island,

500 F. Supp. 1207 (D.R.I. 
1980).................... 34,36

Martinez v. California, 444 
U.S. 277 (1980)........... 25,41

Merritt for Merritt v. State, 
696 P.2d 871, 108 Idaho 20 
(1985).................... 33,35

Mezey v. State, 208 Cal.
Reptr. 40, 161 Cal. App.
3d 1066 (Cal. App. 1 Dist. 
1984)..................... 33

Mossman v. Donahey, 346 N.E. 
305, 46 Ohio St. 2d 1 
(1976).................... 11

Oneida v. Oneida Indian 
Nation, 470 U.S. 226 
(1985).................... 50

Osborn v. Bank of United 
States, 9 Wheat 738 
(1824).................... 19,20

Papasan v. Allain, 92 L.Ed.2d 
209 (1986)................ 17

Parden v. Terminal R. Co. of 
Alabama Docks Dept., 377 
U.S. 184 (1964)...........

Pennhurst State School & Hosp. 
v. Halderman, 465 U.S. 89

10,14,
20,22

(1984).................... 15,27
viii



Cases: Page
Private Truck Council of 

America v. Quinn,
90 L.Ed.2d 677 (1986).....

Pynne v. Meese, 218 Cal. Rptr. 
87, 172 Cal. App. 3d 402 
(Cal. App. 3 Dist. 1985)...

Quern v Jordan, 440 U.S. 332 
(1979)....................

Ramah Navajo School Bd. v. 
Bureau of Revenue, 720 
P. 2d 1243, 104 N.M. 302 
(N.M. App.), cert, denied. 
107 S.Ct. 423 (1986)......

R. I. Affiliate Am. Civil
Liberties v. R. I. Lottery, 
553 F. Supp. 752 (D.R.I. 

1982).....................
Shapiro v. Thompson, 394 U.S. 

618 (1969)...............
Smith v. State, 122 Mich.

App. 340, 333 N.W. 2d 50
(1983)....................  30
State v. Green, 633 P.2d

1381 (Alaska 1981)........
Thompson v. New York, 487 

F. Supp. 212 (N.D.N.Y.
1979).....................

25

13,33

8,22,29,
32-36,40

29.31.37 

34

20

36.37

33,35,
36,37

34

ix



Verner v. State of Colorado,
533 F.Supp. 1109, 1113
(D. Colorado (1982).......  34

Welch v. Dept, of Highways 
and Public Transp., 97
L.Ed. 2d 389 (1987)........  16,18,19,20,22,39

Woodbridge v. Worcester State 
Hospital, 384 Mass. 38,
423 N.E.2d 782 (1981)....  33,35

Yeomans v. Kentucky, 423 U.S.
983 (1975)................  15

Other Authorities
Article III, United States

Constitution .............  16
Eleventh Amendment, United

States Constitution......  Passim
Civil Rights Attorney's Fees

Act of 1976...............  24
Rehabilitation Act Amendments 

of 1986, Pub. L. No.99-506,
§ 1003, 100 Stat. 1807..... 21

Vocational Rehabilitation
Act ......................  28

28 U.S.C. § 1257 (3)..........  2
29 U.S.C. § 216 .............  21
42 U.S.C. § 1983 ............  Passim

Cases; Page

x



No. 87

IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1987

MAURICE SKOBLOW,
Petitioner.

v.
AMERI-MANAGE, INC.,

Respondent.

PETITION FOR WRIT OF CERTIORARI 
TO THE SUPREME COURT OF FLORIDA

The petitioner, Maurice Skoblow, 
respectfully prays that a writ of 
certiorari issue to review the judgments 
and opinions of the Supreme Court of 
Florida entered in this proceeding on 
September 24, 1987 and December 1, 1987.

♦



2
OPINIONS BELOW

The decision of the Florida Supreme 
Court is reported at 514 So.2d 1077, and 
is set out at pp. la-4a of the Appendix. 
The opinion of the Florida District Court 
of Appeal is reported at 483 So. 2d 809, 
and is set out at pp. 5a-18a of the
Appendix. The opinion of the Florida 
Circuit Court, which is not reported, is 
set out at pp. 19a-20a of the Appendix.

JURISDICTION
The original decision of the Florida 

Supreme Court was entered on September 
24, 1987. A timely petition for
rehearing was denied on December 1, 1987. 
Jurisdiction of this Court is invoked 
under 28 U.S.C. § 1257(3).



3
CONSTITUTIONAL AND STATUTORY 

PROVISIONS INVOLVED
The Eleventh Amendment provides:
The Judicial power of the 
United States shall not be 
construed to extend to any suit 
in law or equity, commenced or 
prosecuted against one of the 
United States by citizens of 
another state, or by citizens 
or subjects of any foreign state.
Section 1983 of 42 U.S.C. provides:
Every person who, under color 
of any statute, ordinance, 
regulation, custom, or usage, 
of any state or territory, 
subjects, or causes to be 
subjected, any citizen of the 
United States or other person 
within the jurisdiction thereof 
to the deprivation of any 
rights, p r ivileges,  or 
immunities secured by the 
Constitution and laws, shall be 
liable to the party injured in 
an action at law, suit in 
equity, or other proper 
proceeding for redress.

STATEMENT OF THE CASE
This action arose out of the 

dismissal of petitioner from his



4
employment as a dentist at the South 
Florida State Hospital. On February 13, 
1981, petitioner was summarily fired for 
alleged "inadequate performance" in 
carrying out his duties, and was notified 
that under state law he had no right to 
appeal that action.1 Although the notice 
of dismissal contained no specific 
charges of misconduct, a subsequent 
newspaper article quoted various 
supervisory officials at the state 
hospital as making a variety of specific 
and serious charges against petitioner, 
including taunting patients, use of 
unsterilized instruments, and performing 
unnecessary dental work.1 2 Petitioner 
brought this suit in the Florida Circuit

1 Third Amended Complaint for 
Damages, Exhibit B.

2 Id., Exhibit C.



5
Court for the Eleventh Judicial Circuit; 
count II of his complaint, labeled
"action under 42 U.S.C. 1983 et seq.,"
alleged that the defendants had violated
his "rights to due process of law
guaranteed him by the Fourteenth
Amendment t o the United States
Constitution. i t  3 Specifically petitioner
alleged that he had not been provided
"with any notice of the charges made 
against him . . . , nor with the opportunity 
to be heard on them and to demonstrate 
their falsity," and that the charges "by 
their nature stigmatized the [petitioner] 
and cast a shadow on his professional 
record and qualifications, and have *

3 Id. p. 4.



6
restricted his liberty to seek other 
employment in his profession.1,4

The complaint named as defendants, 
in addition to several individuals, 
Ameri-Manage, Inc.4 5 Ameri-Manage is a 
corporation to which Florida had by 
contract delegated responsibility for 
managing the operations of Florida State 
Hospital. The Hospital Administrator and 
the 10 o t h e r  most i m p o r t a n t  
administrators at the hospital were 
technically employees of Ameri-Manage, 
Inc., rather than of the hospital; aside 
from this financial arrangement, however, 
these key administrators acted as 
hospital staff. The contract authorized

4 Board of Regents v. Roth. 408 
U.S. 564, 573-74 (1972); Codd v. Velaer.
429 U.S. 624, 626-28 (1977).

Id. at 5-6. The complaint also 
contained a state law claim for 
defamation. Id. at 1-5.



7
Ameri-Manage, Inc., to hire and fire 
hospital employees and to establish the 
hospital's termination procedures. App. 
15a-16a.

The defendants moved in the Circuit 
Court for partial summary judgment on a 
variety of grounds, arguing, inter alia. 
that Ameri-Manage, Inc. was a state 
agency, and thus could not be sued in a 
state court section 1983 action because 
of the Eleventh Amendment.6 Ameri- 
Manage, Inc., was represented throughout 
the state court proceedings by the 
Attorney General of Florida. The Circuit 
Court granted the motion, but issued no 
opinion explaining its decision. (App. 
19a-20a). The claims against the 
individual defendants were ultimately

6 Memorandum in Support of Motion 
for Partial Summary Judgment, pp. 9-14.



8
dismissed on a variety of grounds not
relevant to this appeal. The Florida
District Court of Appeal concluded that
"Ameri-Manage was operating as an agency
of the state at the time of
[petitioner's] discharge" (App. 16a), and
held that state agencies were immune from
section 1983 suits in state court:

A b s e n t  an u n e g u i v o c a l  
expression of intent by either 
the United States Congress to 
overturn a state's eleventh 
amendment immunity, or a state 
legislature to waive the 
state's sovereign immunity, a 
state and its agencies are 
immune from civil rights 
actions brought against them 
pursuant to section 1983 in 
both federal and state courts.
See Quern v. Jordan....

(App. 12a). The Florida Supreme Court
affirmed, holding that Ameri-Manage,
Inc., as a state agency, was "immune
under the eleventh amendment and the
common law from suits arising under the



9
federal Civil Rights Act, 42 U.S.C. § 
1983." (App.4a. The Florida Supreme 
Court relied in part on its decision in a 
companion case, Hill v. Department of 
Corrections. 513 So.2d 129 (Fla. 1987).

REASONS FOR GRANTING THE WRIT 
A century ago Hans v. Louisiana. 134 

U.S. 1 (1890), held that the Eleventh 
Amendment was not, as its language 
suggested, a simple repeal of the 
citizen-state diversity clause of Article 
III, but constituted a charter for 
constitutionalizing far broader notions 
of state sovereignty and immunity. Over 
the decades which followed the Eleventh 
Amendment served increasingly as a 
vehicle for reading into the federal 
Constitution, and most recently into a 
variety of federal statutes, restrictions 
forbidding or limiting suits against



10
states. Although frequently conceding 
that the Eleventh Amendment was "not 
literally applicable" to suits against a 
state by its own citizens, this Court 
repeatedly relied on the Amendment, or 
doctrines of state sovereignty emanating 
from it, to hold that federal statutes 
expressly directed at controlling state 
conduct did not authorize federal suits 
against the states which violated those 
laws. Edelman v. Jordan. 415 U.S. 651, 
653 (1974) ; Employees v. Missouri Public
Health Dept.. 411 U.S. 279, 280 (1973);
cf. Parden v. Terminal R. Co. of Alabama 
Docks Dept.. 377 U.S. 184, 186 (1964).

In this case, just as in Edelman, 
Employees. and Parden. a mere literal 
reading of the Eleventh Amendment would 
compel the conclusion that the Amendment 
is inapplicable, since the action was not



11
only brought against Florida by one of 
its own citizens, but was filed in state 
rather than federal court. The Florida 
courts, however, using the method of 
analysis sanctioned by Hans and its 
progeny, relied on the Eleventh 
Amendment, as have other state courts, to 
construe section 1983 to preclude suits 
against a state brought in state court by 
citizens of that very state. A number of 
state courts have gone so far as to hold 
that the Eleventh Amendment is actually 
a p p l i c a b l e  to state j udicial  
proceedings.7 The decision below

' Mossman v. Donahev. 346 N.E. 2d 
305, 315, 46 Ohio St.2d 1 (1976):

"It appears to this court to 
remain the law under the 
Eleventh Amendment that a state 
may not be sued for damages by 
an individual under federal 
law, without its consent, and 
that this principle applies 
equally to state as well as



12

federal courts."
(footnote omitted).
Gittens v. State. 504 N.Y.S. 2d 969, 973 
(Ct. Cl. 1986):

"[A]ssuming arguendo that the 
State is a 'person' subject to 
suit under § 1983 ... the State 
remains protected by the 
Eleventh Amendment. I thus 
hold that an inmate may not 
bring an action in the Court of 
Claims alleging section 1983 
deprivations of civil rights."

Brody v . Leamv. 393 N.Y.S. 2d 243, 262,
and n. 8, 90 Misc. 2d 1, 28 and n. 8
(Sup. Ct. Dutchess Cty. 1977) , held that 
whenever a civil rights judgment against 
a state official would in fact be paid 
with state funds, pursuant to a state 
indemnification law:

"the court would conclude that 
upon the instant claim (and 
solely within the meaning of 
Section 1983) the state is the 
real party in interest, and by 
virtue of the Eleventh 
Amendment no cause of action 
exists in any court of this 
state.... If plaintiff were 
accorded a trial and prevailed, 
and, further, if the State paid 
the judgment by operation of



13
illustrates the extraordinary results to 
which Hans and its progeny can lead. 
Certiorari should be granted to limit the 
Eleventh Amendment, and its emanations, 
to cases which fall within the literal 
language of the Amendment itself.

statutory mandate, public funds 
have been expended and the 
Eleventh Amendment bars the action."

See also id. at 262 (holding, apparently 
in the alternative, that if the Eleventh 
Amendment does not literally apply, the 
state courts should nonetheless utilize 
Eleventh Amendment rules "by a parity of 
reasoning" to assure that no relief is 
available in state court which would be 
forbidden by the Amendment in federal 
court). Cf. Pvne v. Meese. 218 Cal. 
Rptr. 87, 92, 172 Cal. App. 3d 402 (Cal. 
App. 3 Dist. 1985) (state court section 
1983 action not permitted against a state 
both because "a state is not a 'person' 
under section 1983" and because "[t]he 
bar of the Eleventh Amendment has not 
been eroded"). Several state courts hold 
that the states enjoy a form of immunity 
in state court from whatever relief which 
would be barred by the Eleventh Amendment 
if the action were brought in federal 
court. See n. 14, infra.



14
A quarter century ago all nine 

members of this Court were of the view 
that "an unconsenting state is immune 
from federal-court suits brought by its 
own citizens as well as by citizens of 
another State," Parden v. Terminal 
Railway of Alabama Docks Dept.. 377 U.S. 
184, 186 (1964), an immunity which the
Court then believed had been derived from 
the Eleventh Amendment by the 1890 
decision in Hans v. Louisiana. 134 U.S. 1 
(1890). In 1973, however, Justice 
Brennan, relying on the pre-1890 
decisions of this Court regarding the 
Eleventh Amendment, urged that neither 
that Amendment nor any other portion of 
the constitution conferred upon the 
states any federal-court immunity from 
suits by their own citizens. Employees 
v. Missouri Public Health Dept.. 411 U.S.



15
279, 309-24 (1973) (dissenting opinion).8 
In March, 1985, Justice Marshall joined 
Justice Brennan in urging that the states 
possessed no such immunity. Oneida v. 
Oneida Indian Nation. 470 U.S. 226, 254
(1985) (dissenting opinion). Three 
months later, in June 1985, Justices 
Brennan, Marshall, Blackmun and Stevens 
joined in an exhaustive historical 
analysis of the Eleventh Amendment, which 
concluded that the constitutional 
immunity of states applied only to 
diversity actions brought by citizens of

°  See also Yeoman v. Kentucky.
423 U.S. 983 (1975) (dissenting opinion); 
Edelman v. Jordan. 415 U.S. 651, 687
(1974) (Brennan, J., dissenting); 
Fitzpatrick v. Bitzer. 427 U.S. 445, 457
(1976) (Brennan, J., concurring); Florida 
Dept, of State v. Treasure Salvors. Inc.. 
458 U.S. 670, 700 (1982) (Brennan, J., 
concurring in part and dissenting in 
part); Pennhurst State School & Hosp., v. 
Halderman, 465 U.S. 89, 125 (1984)
(Brennan, J., dissenting).



16
other states. Atascadero State Hospital 
V. Scanlon. 473 U.S. 234, 247 (1985)
(dissenting opinion) . Two of the five 
justices who made up the Atascadero 
majority have since retired; Justice 
Scalia has so far expressly declined to 
take a position regarding this 
controversy, Welch v. Dept, of Highways 
and Public Transp.. 97 L.Ed.2d 389, 411
(1987) (concurring opinion), and Justice 
Kennedy has had no opportunity to express 
an opinion on the issue.

Thus at this point in time only 
three members of this Court expressly 
continue to adhere to the view that the 
Eleventh Amendment, or some implicit 
assumption underlying Article III, 
immunizes a state from federal suits by 
its own citizens. The plurality view is 
now to the contrary. This unusual



17
situation regarding a major issue of 
constitutional law would be sufficient to 
warrant review even if further 
implementation of the majority view in 
Atascadero were a simple matter. The 
implementation of the Eleventh Amendment, 
however, has proved anything but simple; 
this Court has constantly been closely 
divided regarding what types of orders 
violate that Amendment, and what types of 
statutes lift a state's immunity. See. 
e.q.. Florida Dept, of State v. Treasure 
Salvors. Inc.. 458 U.S. 670 (1982) (Court 
divided 5-4 regarding propriety of 
disputed order; no majority opinion); 
Papasan v. Allain. 92 L.Ed.2d 209 (1986) 
(four different opinions regarding 
propriety of disputed order); Hutto v. 
Finney. 437 U.S. 679 (1978) (Court
divided 5-4 regarding whether Congress



18
lifted state's immunity). Over the last 
decade this Court has erected an 
increasingly complex superstructure of 
Eleventh Amendment jurisprudence on an 
ever more shaky constitutional 
foundation.

In Welch Justice Scalia suggested 
that the complex questions raised by Hans 
and its progeny should be deferred until 
this Court had before it a dispute 
concerning the interpretation of a 
statute enacted prior to the 1890 
decision in Hans. This is such a case. 
The question presented by this petition 
concerns whether a state can be sued 
under 42 U.S.C. § 1983, originally
enacted as part of the Civil Rights Act 
of 1871. As of 1871 the reigning 
interpretation of the Eleventh Amendment 
was that set forth by Chief Justice



19
Marshall in Cohens v. Virginia. 6 Wheat. 
264 382-83 (1821) and Osborn v. Bank of 
United States. 9 Wheat. 738, 857-58 
(1824). Regardless of whether, as 
Justice Powell urged in Welch. 97 L.Ed.2d 
at 402 n. 11, the holdings in Cohens and 
Osborn were dicta, a member of Congress 
in 1871 would surely have understood 
those decisions to hold that the Eleventh 
Amendment had merely repealed the 
citizen-state diversity clause of Article 
III, and that the Amendment would thus be 
of no relevance to cases arising under 
the statutes and Constitution of the 
United States. Hans undeniably changed,
or began to change all that in 1890, but
in 1871 Cohens and Osborn had been
adhered to without exception by this
Court for almost half a century, and
Congress could not have anticipated that



20
they would be overruled some 19 years 
later.

While the principle of stare decisis 
o r d i n a r i l y  m i l i t a t e s  a g a i n s t  
r e c o n s i d e r a t i o n  of r e i g n i n g  
constitutional doctrine, Eleventh 
Amendment jurisprudence has shifted so 
frequently that it would be inappropriate 
now to rely on stare decisis to freeze in 
place a view of the Amendment no longer 
accepted by a majority of this Court. 
Hans v. Louisiana. as currently 
construed, effectively overruled Cohens 
and Osborn. Edelman v. Jordan. 415 U.S. 
651, 670 (1974), overruled Shapiro v.
Thompson. 394 U.S. 618 (1969) and three
other per curiam decisions. Welch v. 
Dept. of Highways and Public Transp. 
overruled Parden v. Terminal Railway of 
Alabama Docks Dept.



21
The rule of construction which has 

derived from Hans. which presumes, absent 
exceptionally clear evidence to the 
contrary, that Congress did not intend to 
subject the states to suit under a given 
statute, has not proven to be a 
particularly reliable method of 
ascertaining congressional intent. The 
majority's interpretation of the 
Vocational Rehabilitation Act in 
Atascadero State Hospital, for example, 
was, promptly overturned by Congress,9 as 
was the interpretation of Fair Labor 
Standards Act in Employees v. Missouri 
Public Health Dept.. 411 U.S. 279
(1973),10 and this Court concluded in

Rehabilitation Act Amendments 
of 1986, Pub. L. No. 99-506, § 1003, 100
Stat. 1807.

10 29 U.S.C.§ 216(b) (1987
Cumulative Annual Pocket Part), Pub. L. 93-259, § 6(d)(1).



22
Welch that it had misapplied that rule in
Parden. In any event, the application to
an 1871 statute of a rule of construction
which is based on the 1890 decision in
Hans, and which was not clearly announced
by this Court until at least the 1973
decision in Employees. is clearly an
anachronism. Quern v. Jordan. 440 U.S.
332 (1979), which held that Congress did
not intend to authorize federal courts to
hear section 1983 suits against states,
reasoned in part as follows:

[ N ] e i t h e r  l o g i c ,  the 
circumstances surrounding the 
adoption of the Fourteenth 
Amendment, nor the legislative 
history of the 1871 Act compel, 
or even warrant, a leap .... to 
the conclusion that Congress 
intended by the general 
language of the Act to overturn 
the constitutionally guaranteed 
immunity of the several 
states.... [N]ot one Member of 
congress mentioned the Eleventh 
Amendment.... Our cases
consistently have required a 
c l e a r e r  s h o w i n g  of



23
congressional purpose to 
abrogate Eleventh Amendment 
immunity.... § 1983 does not
explicitly and in clear 
language indicate on its face 
an intent to sweep away the 
immunity of the States; nor 
does it have a history 
which shows that Congress 
considered and firmly decided 
to abrogate the Eleventh 
Amendment immunity of the 
States.

440 U.S. at 342-45. Since the states in 
1871 had no Eleventh Amendment immunity 
in cases arising under the federal 
question clause of Article III, the 
failure of the 42nd Congress to "consider 
... the Eleventh Amendment immunity of 
the states" is hardly surprising.

As the extension of Hans has taken 
the interpretation of the Eleventh 
Amendment ever further from the actual 
terms of the Amendment, confusion and 
disagreements have become increasingly 
inevitable. The instant case was brought



24
in state court, a circumstance which 
should surely have made the Eleventh 
Amendment entirely irrelevant, since the 
Amendment concerns only "[t]he judicial 
power of the United States." The 
decisions of this Court have repeatedly 
assumed that a plaintiff could resort to 
state courts to enforce federal laws 
against state defendants. In Maine v. 
Thiboutot. 448 U.S.l (1980), the Court
upheld a state court section 1983 
judgment, which directed the state "to 
pay the correct amounts retroactively" to 
certain individuals who had improperly 
been denied AFDC. 448 U.S. at 3. The 
majority also upheld in Thiboutot an 
award of counsel fees under the Civil 
Rights Attorney's Fees Awards Act of 
1976, reasoning:

No Eleventh Amendment question
is present, of course, where an



25
action is brought in a state 
court since the Amendment, by 
its terms, restrains only 
"[t]he Judicial power of the 
United States."

448 U.S. at 9 n. 7. Justice White, who 
had insisted in Hutto v. Finney. 437 U.S. 
678, 704 (1978), that the Attorneys' Fees 
Act did not authorize federal courts to 
award fees against a state, nonetheless 
joined the majority opinion in Thiboutot 
upholding such an award by a state court. 
In Martinez v. California. 444 U.S. 277 
(1980), the Court resolved on the merits 
a state court § 1983 action against 
California, without expressing any 
reservations about whether this Court, or 
the state courts, had jurisdiction to 
hear such a claim. See also Private 
Truck Council of America. Inc, v. Quinn. 
90 L.Ed.2d 677 (1986) (White, Brennan and 
O'Connor dissenting from denial of



26
certiorari regarding merits of state
court section 1983 suit against state).

In those instances in which a
majority of this Court has held that the
Eleventh Amendment barred a particular
cause of action in federal court, the
Court has repeatedly asserted that the
federal statute at issue was nonetheless
enforceable in an action against a state
in state court. In Employees v. Missouri
Public Health Dept.. 411 U.S. 279 (1973),
Justices Marshall and Stewart stressed
that the Eleventh Amendment in no way
limited the enforceability of the Fair
Labor Standards Act in state court:

Section 16(b)'s authorization 
for employee suits to be 
brought "in any court of 
c o m p e t e n t  jurisdiction" 
includes state ... courts....
[T]he . . .FLSA ... created in 
these employees a federal right 
to recover from the state 
compensation owing under the 
Act. While constitutional



27
limitations upon the federal 
judicial power bar a federal 
court action by these employees 
to enforce their rights, the 
c o u r t s  of the S t a t e s  
n e v e r t h e l e s s  h a v e  an 
independent constitutional 
obligation to entertain 
employee actions to enforce 
those rights.... [S]ince 
federal law stands as the 
supreme law of the land, the 
State's courts are obligated to 
enforce it, even if it 
conflicts with state policy....
I see our decision today, then, 
as nothing more than a 
regulation of the forum in 
which these petitioners may 
seek a remedy for asserted 
denial of their rights under 
the F L S A .... [T]hese
petitioners are entitled 
personally to enforce their 
federal rights against the 
State in state forum rather 
than in federal forum.

411 U.S. at 298.11 In Pennhurst State
School & Hospital v. Halderman. the
majority explained that "under Edelman v. 11

11 The majority in Employees 
noted that the FLSA "arguably" authorized 
suits in state court, but did not resolve 
that issue. 411 U.S. at 287.



28
Jordan ... a suit against state officials 
for retroactive monetary relief ... based 
on federal law, must be brought in state 
court." 465 U.S. at 122. In Atascadero 
State Hospital v. Scanlon the majority 
disputed the suggestion that its 
interpretation of the Vocational 
Rehabilitation Act would leave without 
any monetary remedy individuals whose 
statutory rights had been violated by a 
state, arguing that "[i]t denigrates the 
judges who serve on the state courts to 
suggest that they will not enforce the 
supreme law of the land." 473 U.S. at 
239 n. 2 (emphasis added).

A substantial number of state 
courts, including those in Florida, have 
in fact done precisely what the 
Atascadero majority insisted state judges 
would not do, refusing to hear section



29
1983 claims against state agencies 
precisely because. under Edelman and 
Quern, the plaintiff had nowhere to turn 
except state court. The lower courts, 
which are in a state of "confusion"12 
regarding whether they must hear such 
claims, have adopted four quite distinct 
rules. State courts in Michigan, 
Nebraska and Alaska have held that states

Ramah Navaio School Bd. v. 
Bureau of Revenue. 720 P.2d 1243, 1248,
104 N.M. 302 (N.M. App.) ("confusion in 
the lower courts"), cert. denied. 107 
S.Ct. 423 (1988); see also Gumbhir v.
Kansas State Bd. of Pharmacy. 646 P.2d 
1078, 1083, 231 Kan. 507 (1982) ("the 
courts are divided on the question" of 
whether states are "persons" under section 
1983); Kristensen v. Strinden. 343 N.W.2d 
67, 77 n. 11 (N.D. 1983) ("there is no 
unanimous consensus among the courts" 
regarding whether states are "persons" 
under section 1983); Hampton v. State of 
Michigan Dep't of Corrections. 377 N.W.2d 
920, 921, 144 Mich. App. 794 (1985)
("whether a state or any of its agencies 
is a 'person' for purposes of § 1983 has 
been the subject of ongoing debate in both 
federal and state courts.")



30
are "persons" within the meaning of 
section 1983, and can thus be subjected 
under at least some circumstances, to 
monetary awards in section 1983 
actions.13 Kansas and New Mexico courts 
hold that a state is a "person", and 
subject to a section 1983 suit in its own 
name in state court, where the plaintiff 
seeks only prospective relief; in New 
Mexico courts, however, a state is not a 
"person" under section 1983 to the extent

Smith v. State. 122 Mich. App. 
340, 350-52, 333 N.W.2d 50, 55 (1983) ("we 
conclude that Congress must have intended 
that states be included as 'persons'
. under § 1983"); Maldonado v. Nebraska 
Dept, of Public Welfare. 223 Neb. 485, 
391 N.W.2d 105, 109 (1986) (construing
Maine_v. Thiboutot to authorize state
court section 1983 actions against 
states); Brown v . Wood. 592 P.2d 1250, 
1251 (Alaska 1979) (University of Alaska 
is a "person" and "can be held liable in 
a suit under 42 U.S.C. § 1983").



31
that monetary relief is sought.14 
Decisions in Pennsylvania and North 
Dakota hold that, regardless of whether a 
state may be a "person" subject to suit 
in a section 1983 case, Congress intended 
that states enjoy complete immunity from

14 Gumbhir v. Kansas State Bd. of 
Pharmacy. 231 Kan. 507, 646 P.2d 1078,
1084 (1982) ("where prospective
injunctive relief is sought . . .  a state 
agency should be considered a 'person' 
under the statute . . . .  [A] careful
reading of Quern reveals that case did 
not hold states or state agencies could 
never be considered 'persons' under 
section 1983"); Ramah Navajo School Bd. 
v. Bureau of Revenue. 720 P.2d 1243, 
1249, 104 N.M. 302, (N.M. App.), cert,
denied 107 S.Ct. 423 (1986), ('"where
prospective injunctive relif is sought'. 
. . a state and its agencies may be
proper defendants in state court under 
Section 1983"). This approach was 
disapproved in Karchefske v. Dept, of 
Mental Health. 371 N.W.2d 876, 879 n. 8
(Mich. App. 1985) ("We find no support 
for such a bifurcated application of the 
word 'person"').



32
suits under section 1983.15 The largest 
group of state court insist that Quern v. 
Jordan held that states are not 
"persons", and thus can never be sued in 
a state court section 1983 action.16 The

15 Kristensen v. Strinden. 343
N. W. 2d 67, 76-77 and n. 11 (N.D. 1983)
(holding state immune from suit without 
"deciding) whether or not a state is a 
'person' under the statute"); Kapil v. 
Ass'n of Pa. State College. 448 A.2d 717, 
720 and n. 6, 68 Pa. Comm. W. 287 (1982), 
rev'd on other grounds. 504 Pa. 92, 470
A. 2d (1983) (relying on "a state's 
•traditional' sovereign immunity"); 
Karchefske v. Dept, of Mental Health. 371 
N.W.2d 876, 878-81 (Mich. App. 1985)
(although "the state is a 'person' for 
purposes of § 1983 liability", state can 
assert absolute immunity) ; see also 
Hampton v. State of Michigan Dep't of 
Corrections. 144 Mich. App. 794, 377
N .W.2d 920, 923 (1985) (Gillis, J.,
concurring in part and dissenting in 
part) (although state is "a 'person' for 
purposes of 42 U.S.C. § 1983, state's
immunity rules apply").

16 Boldt v. State. 305 N.W.2d
133, 144, 101 Wis.2d 566, "a state is not 
a 'person' within the meaning of sec. 
1983 . . . .  Quern v. Jordan") , cert,
denied. 454 U.S. 973 (1981) ; Hampton v .
State of Michigan Dep't of Corrections.



33

144 Mich. App. 794, 377 N.W.2d 920, 923
(1985) ("it is our opinion based on Quern 
. . . that the term 'person' in § 1983
was not intended to include states and 
state agencies"); Edgar v. State. 92 
Wash.2d 217, 595 P.2d 534, 537 (1979) 
("The question . . .  in Quern . . . was
whether the word 'person' as used in this 
statute included states. It is the
inescapable holding of the court that it 
did not"; also citing Edelman); State v. 
Green. 633 P.2d 1381, 1382 (Alaska 1981)
("We interpret Quern v. Jordan as holding 
. . . that states are not 'persons'
within the meaning of the section"); 
Merritt for Merritt v. State. 696 P.2d 
871, 877, 108 Idaho 20 (1985) ("We
interpret Quern v. Jordan to hold . . .
that the states are not 'persons' for 
purposes of § 1983"); DeVargas v. State. 
97 N.M. 450, 640 P.2d 1327 (Ct. App.
1981); cert, guashed. 97 N.M. 563, 642
P.2d 166 (1982); Woodbridge v. Worcester
State Ho s p.. 384 Mass. 38, 423 N.E.2d 
782, 786 n. 7 (1981) ("Quern . . . 
reaffirmed the Court's prior holding 
Edelman . . . that States are not
'persons' for purposes of § 1983"); Pyne 
v. Meese. 218 Cal. Rptr. 87, 92, 172 Cal. 
App. 3d 402 (1985) ("a state is not a
'person' under section 1983"; citing 
Quern and Edelman); Mezev v. State. 208 
Cal. Rptr. 40, 43, 161 Cal. App. 3d 1066
(Cal. App. 1 Dist. 1984) ("a state and
its agencies are not 'persons' within the 
meaning of section 1983"; citing Alabama 
v. Pugh. 438 U.S. 781 (1978)).



34
lower federal courts are evenly divided 
regarding whether Quern so held.17 
Ironically, the courts which construe

17 Four federal decisions 
conclude that a state is a "person" for 
section 1983 purposes. Della Grotta v. 
State of Rhode Island. 781 F.2d 343, 348 
(1st Cir. 1986) ("states are 'persons' 
potentially liable for constitutional 
deprivations"); Marrapese v. Rhode 
Island. 500 F. Supp. 1207, 1210-12
(D.R.I. 1980); Irwin v. Calhoun. 522 F.
Supp. 576, 583-84 (D. Mass. 1981); R.I.
Affiliate Am. Civ. Liberties v. R. I. 
Lottery. 553 F. Supp. 752, 767 (D.R.I.
1982) ("Congress intended state 
administrative agencies . . . to be
'persons' within the meaning of § 1983"). 
Cf. Verner v. State of Colorado. 533 F. 
Supp. 1109, 1113 (D. Colo. 1982) ("there
is a strong argument that states are 
'persons' under § 1983").

Three federal decisions have arrived 
at the contrary conclusion. Bailey v. 
Ohio State University. 487 F. Supp. 601, 
603 (S.D. Ohio 1980) ("a state is not a
'person' under § 1983"); Brown v . Supreme 
Court of Nevada. 476 F. Supp. 86, 89 (D. 
Nev. 1979) ("an agency of the State . . . 
is not a 'person' under" section 1983) ; 
Thompson v. New York. 487 F. Supp. 212, 
226 (N.D.N.Y. 1979) ("this Court is bound 
by Quern' s . . . holding that a State is
not a 'person' within the meaning of" 
section 1983).



35
Quern to bar state court suits against 
states rely primarily on Justice 
Brennan's separate opinion, which 
criticized the Quern decision for so 
holding,18 while the courts which hold 
that states are "persons" rely on the

±u Kristensen v. Strinden. 343 
N. W. 2d 67, 77 n. 11 (N.D. 1983) ("the
concurring opinions of Justices Brennan 
and Marshall in Quern" read the majority 
opinion "as having definitely settled the 
question); Hampton v. State of Michigan 
Dep't of Corrections. 144 Mich. App. 794, 
377 N.W.2d 920, 922 (1985) (court's view
that Quern holds states are not persons 
"was the position taken by Justice 
Brennan, concurring in Quern"); Edgar v. 
state. 92 Wash.2d 217, 595 P.2d 534, 537
(1979), (citing Justice Brennan's 
"dissent" in Quern), cert, denied. 444 
U.S. 1077 (1980); State v. Green. 633 P.2d 
1381, 1382 (Alaska 1981) (same); Merritt
for Merritt v. State. 696 P.2d 871, 877,
100 Idaho 20 (1985) ("As Justice Brennan's 
concurring opinion points out, the 
majority opinion implicitly includes . . . 
a decision" that states are not 
"persons"); Woodbridae v. Worcester State 
Hosp. . 384 Mass. 38, 423 N.E.2d 782, 786
n. 7 (1981) (relying on "the concurring
opinions of Justices Marshall and 
Brennan")



36
majority opinion of Chief Justice 
Rehnquist.19

19 Smith v. State. 333 N.W.2d at 
55; Gumbhir v. Kansas State Bd. of 
Pharmacy. 231 Kan. 507, 646 P.2d 1078, 
1084 (1982) ("Justice Rehnquist's majority 
opinion carefully skirted the issue"); 
Karchefske v. Deot. of Mental Health, 371 
N .W .2 d 876, 878 (Mich. App. 1985)
("Justice Brennan's characterization of 
the majority opinion in Quern is in 
error"); Marrapese v. State of Rhode 
Island. 500 F. Supp. 1207, 1211 (D.R.I.
1980) ("Justice Rehnquist's opinion . . .
conspicuously avoided any statement that 
the term 'person' did not include 
'state'"); State v. Green. 633 P.2d 1381, 
1382 (Alaska 1981) (Rabinowitz, C. J., 
dissenting) ("Justice Rehnquist's opinion 
in fact carefully avoids that issue . . .
. Under Justice Rehnquist's approach the 
states are free to render themselves 
amenable to suit under 42 U.S.C. § 1983 ; 
under Justice Brennan's approach, this is 
not the case"); Marrapese v. State of 
R. I. . 500 F. Supp. 1207, 1211 and n. 9
(D.R.I. 1980) ("Justice Rehnquist's
opinion . . . conspicuously avoided any
statement that the term 'person' did not 
include 'state' . . . . The Court's
refusal to cast its discussion in the form 
of a 'person' analysis is all the more 
striking in light of Justice Brennan's 
vehement . . . concurring opinion . . . .")



37
The state of the law in the lower 

courts is more conflicting, and 
incongruous, than even the previous 
paragraph suggests. There are intrastate 
conflicts between state courts in 
Michigan, New Mexico, and Alaska.20 
Several state courts appear to hold that 
the Eleventh Amendment is literally 
a p p l i c a b l e  to state judicial 
proceedings.21 A number of decisions 
argue that "[i]t would be anomalous, to 
say the least", if Congress had 
authorized the filing in state courts of 
section 1983 actions which could not be

z u  Compare Ramah Navajo School
Bd. v. Bureau of Revenue, supra n. 14 
with DeVaroas v. New Mexico Dep't of 
Corrections. supra n. 16; compare Brown 
v. Wood, supra n. 13, with State v. 
Green, supra n. 16; compare Smith v. 
State, supra n. 13, with Hampton v. State 
of Michigan Dep't of Corrections, supra 
n. 16.

21 See n. 7, supra.



38
brought in federal court22; Maine v. 
Th iboutot expressly rejected the 
suggestion that there was any "inherent 
illogic" in consigning a subset of 
section 1983 cases to state courts.23 A 
Wisconsin court held in 1981 that counsel 
fees under section 1988 coould be 
obtained against a state in state court 
because the state itself could not be 
sued under section 198324, a result

^  Karchefske v. Dept, of Mental 
Health. 37 N.W.2d 876, 871 (Mich. App.
1985) ("anomalous"); Hampton v. State of 
Michigan Dep't of Corrections. 377 N.W.2d 
920, 922, 144 Mich. App. 794 (1985)
("unlikely").

23 448 U.S. at 8 n. 6, 11 n. 12.
24 Boldt v. State. 101 Wis.2d 566, 

305 N.W.2d 133, 143-44, cert, denied. 454 
U.S. 973 (1981):

"The petitioner is not entitled 
to recovery under sec. 1983 . .
. because the state is not 
subject to suit under sec. 1983 
. . . . Since recovery of
actual attorney's fees under



39
squarely contrary to this Court's 1980 
decision in Maine v. Thiboutot. a New 
York decision goes so far as to assert 
that a state, by adopting an 
indemnification statute, can extend its 
Eleventh Amendment immunity to bar state 
court section 1983 suits against 
individual state officials.25

But at this point in the evolution 
of Eleventh Amendment, considerably more 
is at issue than whether state court 
actions may be maintained against state 
agencies under section 1983 or pursuant 
to any other specific federal statute. 
The inconclusive result in Welch, coupled

sec. 1988 is dependent on a 
successful suit being brought 
under sec. 1983, the petitioner 
is not entitled to recover 
actual attorney's fees."
Brody__v . Leamv. 393 N.Y.S.2d

243, 262, 90 Misc.2d 1, 28 (Sup. Ct.Dutchess Cty 1977) .



40
with the retirement of Justice Powell, 
has left litigants and the lower courts, 
as well as federal and state legislators, 
in serious and understandable uncertainty 
as to whether Hans, Edelman. and their 
progeny are still good law. The time has 
come, we believe, to consider anew the 
meaning of the Eleventh Amendment, and to 
craft an interpretation of that Amendment 
which can command the predictable support 
of a substantial majority of this Court.

If this Court were to overrule Hans 
and its progeny, the decision below would 
fall as a matter of course. The refusal 
of the Florida courts to hear in state 
court section 1983 suits against the 
state rests squarely, and expressly, on 
Hans. Edelman and Quern.26 If, as we

Hill v. Department of 
Corrections. 513 So.2d 129, 139-31 (Fla. 1987) .



41
urge, this Court were to hold that 
section 1983 suits may be maintained 
against states in federal courts, state 
courts would necessarily be required to 
entertain such suits as well, since 
Martinez v. California. 444 U.S. 277 
(1980), forbids the states to accord to 
section 1983 defendants immunities 
broader than those which would be 
available were the same action brought in 
federal court.27

444 U.S. at 283 n. 8:
"Conduct . . . which is wrongful 
under 42 U.S.C. § 1983 ...
cannot be immunized by state 
law. A construction of the 
federal statute which permitted 
a state immunity defense to 
have controlling effect would 
transmute a basic guarantee 
into an illusory promise; and 
the supremacy clause of the 
Constitution insures that the 
proper construction may be 
enforced.... The immunity 
claim raises a question of 
federal law."



42

CONCLUSION
For the above reasons a writ of 

certiorari should be granted to review 
the judgment and opinion of the Supreme 
Court of Florida.

Respectfully submitted,

ROBERT WEISBERG 
DAVID LIPMAN

Lipman & Weisberg, P.A. 
Suite 304
5901 Southwest 74th St. 
Miami, Florida 33143 
(305) 662-2600

SHARON L. WOLFE 
Cooper, Wolfe &

Bolotin, P.A.
500 Roberts Building 
28 West Flagler Street 
Miami, Florida 33130 
(305) 371-1597



43

JULIUS LeVONNE CHAMBERS 
ERIC SCHNAPPER*

NAACP Legal Defense and 
Educational Fund, Inc. 

99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900

Attorneys for Petitioner
♦Counsel of Record



A P P E N D I X



ROBERT EDWARD SPOONER,
Petitioner, 

DEPARTMENT OF CORRECTIONS,
Respondent. 

MAURICE SKOBLOW,
Petitioner,

v.
AMERI-MANAGE, INC., et al.,

Respondents. 
Nos. 68932, 68522 

Supreme Court of Florida. 
Sept. 24, 1987.

Rehearing Denied Dec. 1, 1987
F. Kendall Slinkman, West Palm
, and Edna L. Caruso, P. A., West

Palm Beach, for petitioner, Spooner.
Robert A. Butterworth, Atty. Gen.,

and Mitchell, D. Franks, Chief Trial
counsel and Thomas H. Bateman , III, Asst.

la



Atty. Gen., Tallahassee, for respondent, 
Dept, of Corrections.

Ira J. Kurzban of Kurzban, Kurzban 
and Weinger, Miami, and Joel V. Lumer, 
Miami, for Nat. Emergency Civil Liberties 
Committee, amicus curiae.

Stephen T. Maher, Coral Gables, and 
Sharon L. Wolfe, Miami, for American 
Civil Liberties Union Foundation of 
Florida, Inc., amicus curiae.

Robert Weisberg of Lipman & 
Weisberg, P.A., Miami, and Sharon L. 
Wolfe of Cooper, Wolfe & Bolotin, P.A., 
Miami, for petitioner, Skoblow.

Robert A. Butterworth, Atty. Gen. ,
and Mitchell D. Franks, Chief Trial
Counsel and Craig Willis, Asst. Atty.
Gen., Tallahassee, for respondents, 
Ameri-Manage, Inc., et al.

OVERTON, Justice.

2a



The First District Court of appeal, 
in Spooner v. Department of Corrections. 
488 So.2d 897 (Fla. 1st DCA 1986), 
certified the following question to this 
Court:

Has the State of Florida, 
pursuant to Section 768.28, 
Florida Statutes (1983), waived 
its Eleventh Amendment and 
state common law immunity and 
consented to suits against the 
State and its agencies under 42 
U.S.C. § 1983?

Id. at 898.
The above case was consolidated with 

Skoblow v. Ameri-Manaqe, Inc.. 483 So.2d 
809 (Fla. 3d DCA 1986), which concerns 
the i d e n t i c a l  issue, w i t h o u t  
certification of the question. We have 
jurisdiction. Art. V, § 3(b)(4).

We answer the question in the 
negative for the reasons expressed in our 
recent decision in Hill v. Department of 
Corrections. 513 So.2d 129 (Fla. 1987).

3a



We approve the decision of the First 
District Court of Appeal in Spooner and 
that of the Third District Court of 
Appeal in Skoblow. holding the state 
immune under the eleventh amendment and 
the common law from suits arising under 
the federal Civil Rights Act, 42 U.S.C. 
U.S.C. § 1983.

It is so ordered.
MCDONALD, C.J., and EHRLICH, SHAW, 

GRIMES and KOGAN, JJ., concur.

4a



Maurice SKOBLOW, Appellant, 
v.

AMERI-MANAGE, INC., Robert A. Burton, 
John Pitrelli, Elsa Dominguez, Barbara 
McMurtrey, Jackie Dale and Paul Uhrig, 
Appellees.

No. 85-1741
District Court of Appeal of Florida, 

Third District.
Feb. 18, 1986.

Lipman & Weisberg and Robert 
Weisberg, Miami, for appellant.

Jim Smith, Atty. Gen., and Craig 
Willis, Asst. Atty. Gen., for appellees. 

Before HENDRY, HUBBART and NESBITT,
JJ.

PER CURIAM.
The plaintiff appeals an order 

entering partial summary judgment for the 
defendants. We affirm.

5a



The plaintiff was employed as a 
dentist at South Florida State Hospital. 
The hospital is a mental institution 
which is owned, funded and regulated by 
the State of Florida. Pursuant to a 
contract with the state, Ameri-Manage, 
Inc., provides management services at the 
hospital. On February 13, 1981, the
plaintiff was notified of his termination 
from employment at the hospital by a 
letter from Robert Burton, the chief 
executive officer of the hospital and an 
employee of Ameri-Manage. This letter 
indicated that the plaintiff was being 
discharged because of "inadequate 
performance in carrying out your duties 
and responsibilities."

Two weeks later, an article appeared 
in the Miami Herald concerning the 
plaintiff's discharge. Four officials of

6a



the hospital or state were reported in 
the article to have given negative 
statements about the plaintiff's work as 
a dentist at the hospital. These 
officials were Jackie Dale, the community 
and patient relations director at the 
hospital (referred to in the article as 
the hospital spokeswoman), Barbara 
McMurtrey, the human resources director 
(personnel officer) at the hospital, Dr. 
Paul Uhrig, the director of the state's 
Division of Institutional Dental 
Services, and Dr. Elsa Dominguez, the 
dental services coordinator at the 
hospital and the plaintiff's immediate 
supervisor.

The plaintiff filed a two-count 
complaint against the defendants. In the 
first count, the plaintiff brought an 
action for defamation against Dale,

7a



McMurtrey, Uhrig and Dominguez. Burton 
was also named in this count on the 
asserted basis of a civil conspiracy with 
the other named defendants to commit the 
defamation. In the second count, the 
plaintiff alleged a civil rights 
violation pursuant to 42 U.S.C. § 1983 
regarding his termination at the 
hospital. Ameri-Manage and Burton were 
named as defendants in this count. The 
defendants filed a motion for partial 
summary judgment on the basis of absolute 
privilege and sovereign immunity. 
Partial summary judgment was entered in 
favor of the defendants and this appeal 
followed.

In McNavr v. Kelley. 184 So.2d 428 
(Fla. 1966), the supreme court first 
recognized an executive official's 
absolute immunity from defamation actions

8a



based on statements made in connection 
with the performance of his duties and 
responsibilities. The court recognized 
that executive officials had the same 
absolute immunity afforded members of the 
judicial and legislative branches of 
government. 184 So.2d at 433.
Subsequently, the supreme court explained 
the need for this immunity protection in 
a case with facts similar to those in the 
present case:

The public interest requires 
that statements made by officials of 
all branches of government in 
connection with their official 
duties be absolutely privileged. 
Under our democratic system the 
stewardship of public officials is 
daily observed by the public. It is 
necessary that free and open 
explanations of their actions be 
made. Any public servant should 
expect that those having authority 
to discharge him will explain their 
reasons for such dismissal.

Hauser v. Urchisin. 231 So.2d 6, 8 (Fla.
1970). The scope of the absolute

9a



immunity has been extended to private 
communications and the emphasis has 
shifted to the "nature of the officer's 
duties rather than the level of his 
rank." City of Miami v. Wardlow. 403 
So.2d 414, 416 (Fla. 1981). See Crioe v. 
Board of Regents. 358 So.2d 244 (Fla. 1st 
DC A) , cert, denied. 365 So.2d 710 (Fla. 
1978); Johnsen v. Carhart. 353 So.2d 874 
(Fla. 3d DCA 1977). Thus, the 
controlling issue in deciding whether a 
public employee is absolutely immune from 
actions for defamation is whether the 
communication was within the scope of the 
employee's duties. Wardlow. 403 So.2d at 
416.

In the present case, all the 
defendants alleged to have defamed the 
plaintiff either had official supervisory 
responsibility over the plaintiff or had

10a



responsibilities regarding personnel
matters or community relations. Since 
the statements made concerning the 
plaintiff's discharge were related to and 
made within the scope of the defendants1 
official duties, we hold that these 
defendants are entitled to an absolute 
privilege and are, therefore, immune from 
liability for the alleged defamation. 
See Wardlow; Hauser; Mueller v. The 
Florida Bar. 390 So.2d 449 (Fla. 4th DCA 
1980) ; Cripe; Johnsen. Accordingly, 
summary judgment was properly entered in 
favor of Dale, McMurtrey, Uhrig and 
Dominguez on the defamation count. 
Likewise, summary judgment was properly 
entered in favor of Burton on this count. 
See Perdomo v. Jackson Memorial Hospital. 
443 So.2d 298 (Fla. 3d DCA 1983) (where 
count regarding the goal of a conspiracy

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(defamation) fails, so too the conspiracy 
count fails).

We also affirm the summary judgment 
entered in favor of Ameri-Manage on the 
section 1983 action in the plaintiff's 
second count. Absent an unequivocal 
expression of intent by either the United 
States Congress to overturn a state1s 
eleventh amendment immunity, or a state 
legislature to waive the state's 
sovereign immunity, a state and its 
agencies are immune from civil rights
actions brought against them pursuant to
section 1983 in both federal and state
courts. See Ouern v. Jordan, 440 U.S.
332, 99 S.Ct. 1139, 59 L.Ed.2d 358
(1979) ; art. X, § 13, Fla. Const. See
also Pennhurst State School & Hospital v. 
Halderman. 465 U.S. 89, 104 S.Ct. 900, 79 
L.Ed.2d 67 (1984); Ford Motor Co. v.

12a



Department of Treasury. 323 U.S. 459, 65 
S.Ct. 347, 89 L.Ed. 389 (1945); Ex Parte:
in_re the State of New York. 256 U.S.
490, 41 S.Ct. 588, 65 L.Ed. 1057 (1921).
The plaintiff does not argue that the 
Florida legislature has waived the 
state's sovereign immunity so as to allow 
civil rights actions against it.1 See

1 In this regard, see the 
discussion in Shinholster v. Graham. 527 
F.Supp. 1318 (N.D. Fla. 1981). The court 
in Shinholster reviews the relevant 
legislation and concludes that the 
Florida legislature has not waived its 
eleventh amendment immunity to civil 
rights suits. The court's analysis is 
equally applicable to the issue of 
whether the legislature has waived the 
state's sovereign immunity in civil 
rights actions brought in state court. 
We find that analysis persuasive and 
hereby adopt it. See also Tuveson v. 
Florida Governor's Council on Indian 
Affairs. Inc.. 734 F.2d 730 (11th Cir.
1984) ; Cate v. Oldham. 707 F.2d 1176 
(11th Cir. 1983); Ostroff v. Florida 
Dep't of Health & Rehabilitative 
Services. 554 F. Supp. 347 (M.D. Fla.
1983) . Contra Meeker v. Addison. 586 F. 
Supp. 216 (S.D. Fla. 1984).

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art. X, § 13, Fla. Const. Instead, the 
plaintiff argues that Ameri-Manage is not 
a state agency for purposes of sovereign 
immunity in civil rights actions. We
reject the plaintiff's argument.

An examination of the legal
relationship between Ameri-Manage and the 
state is dispositive. Pursuant to a 
contract between the state and Ameri-
Manage, Ameri-Manage was to provide
direct management for South Florida State 
Hospital, a state-owned hospital, 
coordinate the development of a long- 
range plan for the hospital consistent 
with legislative mandate, and assist the 
Department (HRS) in planning for interim

We note that the Eleventh Circuit 
Court of Appeals has recently approved 
the decision in Shinholster and rejected 
the reasoning in Meeker. See Gamble v. 
Florida Dep't of Health & Rehabilitative 
Services. 779 F.2d 1509 (11th Cir. 1986).

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and long-range forensic services. HRS 
delegated to the administrator of the 
hospital (Burton, an employee of Ameri- 
Manage), among other things, the 
authority to (1) "appoint grievance 
committee members and render a final 
decision on employee grievances"; (2) 
"effect personnel actions as specified in 
HRSR 60-10, 10(a) . . . [and] hold
presuspension/termination conferences and 
establish procedures for same"; (3) 
"submit personnel actions to the State 
Personnel Director directly, as specified 
in HRSR 60—94(a)(1)(26)"; (4) "assign to
established classes new positions 
authorized by the legislature"; (5) 
"assign to established classes new 
p o s i t i o n s  a u t h o r i z e d  by the 
Administrative Commission"; (6) "assign 
to an established class any position that

15a



is added in lieu of a position that is
deleted"; (7) "reclassify positions to 
existing Career Service Classes"; (8) 
"respond to Collective Bargaining Step 
One Grievances"; (9) "effect all types of 
disciplinary actions as stated in HRSR 
60-10 paragraph 5. This includes oral 
reprimand, written reprimand, change in 
assignment, reduction in pay, demotion, 
suspension and dismissal." [emphasis 
added] It was the exercise of this last- 
stated delegated authority which gave 
rise to the plaintiff's claim under 
section 1983.

An examination of the relationship 
between Ameri-Manage and the State of 
Florida leads us to the conclusion that 
Ameri-Manage was operating as an agency 
of the state at the time of the 
plaintiff's discharge from his position

16a



at the hospital. See Tuveson v. Florida 
Governor's Council on Indian Affairs. 
Inc.. 734 F.2d 730 (11th Cir. 1984). See 
also Edelman v. Jordan. 415 U.S. 651, 94 
S.Ct. 1347, 39 L.Ed. 2d 662 (1974); Ford
Motor Co. Cf. § 768.28(2), Fla. Stat. 
(1985) (defining "state agencies" for 
purposes of the statute waiving sovereign 
immunity in tort actions as including 
"corporations primarily acting as 
instrumentalities or agencies of the 
state"). Since the Florida legislature 
has not waived the state's sovereign 
immunity in civil rights actions, see 
Gamble v. Florida Dep't of Health & 
Rehabilitative Services. 779 F.2d 1509 
(11th Cir. 1986); Shinholster v. Graham. 
527 F. Supp. 1318 (N.D. Fla. 1981);2 art. 
X, § 13, Fla. Const., the summary

2 See supra note 1.
17a



«

judgment in favor of Ameri-Manage on the 
plaintiff's second count alleging a civil 
rights violation was properly entered.

The parties are in agreement that 
Burton can be held liable in his 
individual capacity for any civil rights 
violations that might have occurred. 
Accordingly, the summary judgment entered 
in favor of all of the defendants on 
plaintiff's defamation count is affirmed, 
the summary judgment entered in favor of 
Ameri-Manage on the count alleging a 
civil rights violation is affirmed, and 
the cause is remanded to the trial court 
for further proceedings.

1 8 a



IN THE
CIRCUIT COURT

OF THE ELEVENTH JUDICIAL CIRCUIT 
IN AND FOR DADE COUNTY, FLORIDA 
GENERAL JURISDICTION DIVISION

CASE No. 82-606-CA-13

MAURICE SKOBLOW,
Plaintiff,
v.

AMERI-MANAGE, INC., ROBERT A. BURTON, 
ELSA DOMINGUEZ, BARBARA McMURTREY, 
JACKIE DALE and PAUL UHRIG,

Defendants.

PARTIAL SUMMARY JUDGMENT 
THIS CAUSE having come to be heard 

on the Defendants' Motion for Partial 
Summary Judgment and the Court after 
hearing argument of counsel, reviewing 
the file and memoranda, and being

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otherwise fully advised in the premises, 
it is hereby:

O R D E R E D  AND A D J U D G E D  that 
Defendants' Motion for Partial Summary 
Judgment is GRANTED and therefore partial 
summary judgment is hereby entered in 
favor of the defendants.

DONE and ORDERED at Miami, Dade 
County, Florida, this 27th day of June, 
1985.

Rosemary Usher Jones 
CIRCUIT COURT JUDGE

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