537 So.2d 706 (Fla.App. 2 Dist. 1989), 87-3583, Howlett by Howlett v. Rose
|Citation:||537 So.2d 706, 14 Fla. L. Weekly 371|
|Party Name:||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.|
|Case Date:||February 01, 1989|
|Court:||Florida Court of Appeals, Second District|
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...
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