Howlett by Howlett v. Rose

Citation537 So.2d 706,14 Fla. L. Weekly 371
Decision Date01 February 1989
Docket NumberNo. 87-3583,87-3583
Parties51 Ed. Law Rep. 690, 14 Fla. L. Weekly 371 Mark HOWLETT, a minor, by and Through Elizabeth HOWLETT, his mother, natural guardian and next friend, Appellant, v. Scott ROSE, as Superintendent of Schools for Pinellas County, Florida; William Grey, Thomas Petit and the School Board of Pinellas County, Florida, Appellees.
CourtCourt of Appeal of Florida (US)

Gardner W. Beckett, Jr. of Nelson, Beckett & Nelson, St. Petersburg, for appellant.

Christa L. Collins-Johnson and Luis Prats of Blasingame, Forizs & Smiljanich, P.A., St. Petersburg, for appellees.

CAMPBELL, Chief Judge.

This appeal on behalf of appellant, Mark Howlett, a minor, challenges the final order that dismissed with prejudice his complaint for injunctive relief and damages against the school board and several school officials. The state court action brought by appellant below was pursuant to the Judicial Civil Rights Act of 1871, 42 U.S.C. section 1983. Appellant raises three issues on this appeal:

I. WHETHER THE QUESTION OF A STATE AND ITS SUBDIVISIONS' SOVEREIGN IMMUNITY TO AN ACTION BROUGHT IN A STATE COURT UNDER THE FEDERAL CIVIL RIGHTS ACT OF 1871, 42 U.S.C. § 1983, IS A QUESTION OF STATE OR FEDERAL LAW?

II. WHETHER UNDER FEDERAL LAW A FLORIDA SCHOOL BOARD IS IMMUNE FROM SUIT UNDER SECTION 1983?

III. WHETHER IT IS NECESSARY TO EXHAUST STATE REMEDIES UNDER THE FLORIDA ADMINISTRATIVE PROCEDURE ACT BEFORE BRINGING AN ACTION FOR DAMAGES IN A FLORIDA COURT UNDER SECTION 1983?

Although our conclusion and answer to the first issue precludes the necessity of deciding the other two issues, we will briefly discuss those issues. We decide appellant's first issue on the authority of Hill v. Department of Corrections, State of Florida, 513 So.2d 129 (Fla.1987), cert. denied, 484 U.S. 1064, 108 S.Ct. 1024, 98 L.Ed.2d 989 (1988), and hold that the State of Florida has not waived its sovereign immunity from suits against it in its own state courts except to the extent provided in section 768.28, Florida Statutes (1985) for traditional state tort actions. See Hill. Thus, to the extent that the actions of the state and its agencies are protected by sovereign immunity, an action pursuant to section 1983 will not lie in state courts. The question of whether that sovereign immunity exists is a question of state law and not federal law. The question of the scope of that sovereign immunity, or whether a particular act is protected by that sovereign immunity, is not before us on this appeal, nor was it before the trial court. In both the trial court and on appeal, appellant argued that the question of whether a state has maintained its common law sovereign immunity from a section 1983 suit in its state courts is a question of federal law. It is not. The question of whether a state has waived its own common law immunity in its own courts is a question of state law. Appellant's primary argument thus fails and the trial court judgment must be affirmed.

At oral argument, this court's decision in Elder v. Highlands County Board of County Commissioners, 497 So.2d 1334 (Fla. 2d DCA 1986) was cited in support of appellant's position. Yet, the question of the common law sovereign immunity of a state from suit in its state courts on a federal cause of action was neither presented nor discussed in Elder. Elder was decided on the basis of Eleventh Amendment immunity. As our supreme court stated in Hill, relying on Ramah Navajo School Board v. Bureau of Revenue, 104 N.M. 302, 720 P.2d 1243 (App.), cert. denied, 479 U.S. 940, 107 S.Ct. 423, 93 L.Ed.2d 373 (1986), sovereign immunity and Eleventh Amendment immunity are distinct concepts. The eleventh amendment protects state government from the federal judiciary. Under the eleventh amendment, when a section 1983 action is brought against a state in federal court, the question is whether the defendant qualifies as a "person" under the act or is more properly an Eleventh Amendment protected state agency. The determination of that question in that context is a question of federal law. However, when a section 1983 action is brought in state court, the sole question to be decided on the basis of state law is whether the state has waived its common law sovereign immunity to the extent necessary to allow a section 1983 action in state court. Hill holds that Florida has not so waived its sovereign immunity. We therefore do not reach appellant's second issue in this case, i.e., whether under federal law a Florida school board is immune from a section 1983 law. There is no question under Florida law that agencies of the state, including school boards and municipalities, are the beneficiaries of sovereign immunity. The extent of that sovereign immunity and its applicability under Florida law in this case has not been addressed by appellant.

Neither do we reach the question of the...

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9 cases
  • Haywood v. Drown
    • United States
    • United States Supreme Court
    • 26 May 2009
    ...the dismissal with prejudice of the § 1983 suit against the state officials. See id., at 359, 110 S.Ct. 2430; see also Howlett v. Rose, 537 So.2d 706, 708 (Fla.App.1989) (concluding that Florida's “common law immunity” rule barred “the use of its courts for suits against the state in those ......
  • Haywood v. Drown
    • United States
    • United States Supreme Court
    • 26 May 2009
    ...the dismissal with prejudice of the § 1983 suit against the state officials. See id., at 359, 110 S.Ct. 2430; see also Howlett v. Rose, 537 So.2d 706, 708 (Fla.App.1989) (concluding that Florida's “common law immunity” rule barred “the use of its courts for suits against the state in those ......
  • Heinly v. Com.
    • United States
    • Commonwealth Court of Pennsylvania
    • 26 February 1993
    ...... Heinly asserted that the conduct of the Unnamed Police Officers was so reckless that it rose to the level of misconduct. This count then alleged that because the Unnamed Police Officers ... In Howlett v. Rose, 496 U.S. 356, 110 S.Ct. 2430, 2432, 110 L.Ed.2d 332 (1990), the United States Supreme ......
  • Brown v. Jenne
    • United States
    • Court of Appeal of Florida (US)
    • 25 October 2006
    ...degree that the state government is. The United States Supreme Court has answered that question in the negative. In Howlett v. Rose, 537 So.2d 706 (Fla. 2d DCA 1989), rev'd, 496 U.S. 356, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990), a minor brought an action pursuant to section 1983 against the ......
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