Brinkman v. Gilligan

• Decision Date: 24 May 1985
• Docket Number: No. C-3-75-304.,C-3-75-304.
• Citation: 610 F. Supp. 1288
• Parties: Mark BRINKMAN, et al., Plaintiffs, v. John J. GILLIGAN, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

610 F. Supp. 1288

Mark BRINKMAN, et al., Plaintiffs, v. John J. GILLIGAN, et al., Defendants.

No. C-3-75-304.

United States District Court, S.D. Ohio, W.D.

May 24, 1985.

Louis Lucas, Memphis, Tenn., for plaintiffs.

David Greer, Dayton, Ohio, James Ruppert, Franklin, Ohio, Jerry J. Jurca, Columbus, Ohio, for defendants.

OPINION AND ORDER

CARL B. RUBIN, Chief Judge.

This protracted desegregation case, directed at the Dayton Public School System, was originally filed on April 17, 1972 pursuant to 42 U.S.C. §§ 1983-1988, 2000d (1982), seeking injunctive relief.¹ (Doc. No. 1). The named state defendants, sued in their official capacities, include John Gilligan, former Governor of Ohio and ex officio member of the Board of Education; William Brown, former Ohio Attorney General; Martin Essex, former Superintendent of Public Instruction; the Ohio Department of Education; and the Ohio State Board of Education. (Id.; Doc. No. 247 at 4).

The Dayton Board of Education ("Dayton Board") filed a Motion to Require State to Pay a Portion of Costs (doc. no. 104) on December 24, 1975. The memorandum in opposition (doc. no. 113), reply memorandum (doc. no. 114), and supplemental memoranda (doc. nos. 116, 119) were filed. The litigation was later bifurcated, with the first stage limited to the issue of the Dayton Board's liability for the segregation of its school system and the second stage directed at the issue of the state defendants' liability. This Court found that the Dayton Board violated the Equal Protection Clause of the Fourteenth Amendment. Brinkman v. Gilligan, No. 72-137 (S.D. Ohio 1973) (doc. no. 59). A systemwide remedy for the segregation was ultimately upheld by the Supreme Court. Dayton Board of Education v. Brinkman, 443 U.S. 526, 99 S.Ct. 2971, 61 L.Ed.2d 720 (1979).

Subsequently, the issue sub judice of state liability was revived in June of 1982. (Doc. No. 228). The Dayton Board and state defendants resubmitted memoranda on the issue of state liability. (Doc. Nos. 246, 247). A hearing was held before the Court on January 5, 1983 and the matter taken under submission.

I. Eleventh Amendment

The plaintiffs sought injunctive relief against the former Ohio Governor, John J. Gilligan; former Attorney General, William J. Brown; former Superintendent of Public Instruction, Martin Essex; the Ohio State Department of Education; and the Ohio State Board of Education.² It is the position of the state defendants that two of the five defendants, the Ohio State Board of Education and the Ohio State Department of Education, must be dismissed from the lawsuit on Eleventh Amendment grounds. The Dayton Board has not responded to this assertion. (Doc. No. 246).

The Eleventh Amendment to the Constitution of the United States bars a suit against a state in federal court brought by her own citizens as well as citizens of another state.³Employees v. Missouri Public Health & Welfare Department, 411 U.S. 279, 280, 93 S.Ct. 1614, 1615, 36 L.Ed.2d 251 (1973). In the absence of consent to a suit in which the state or one of its agencies or departments is named as a defendant, a federal court is barred by the Eleventh Amendment from entertaining the claims. Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984). See Florida Department of State v. Treasure Salvors, Inc., 458 U.S. 670, 684, 102 S.Ct. 3304, 3314, 73 L.Ed.2d 1057 (1982); Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978); Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 1355-56, 39 L.Ed.2d 662 (1974). This jurisdictional bar applies regardless of the type of relief sought. Pennhurst, 104 S.Ct. at 908.

The first issue to be addressed in this case is whether the Ohio State Board of Education and the Ohio State Department of Education can be sued in federal court for violating federal law. The defendants themselves raise the argument that the Court, in Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977), implicitly approved the inclusion of the state board in that school desegregation case. A closer examination of the decision reveals that the Milliken Court held that the requirement that the state officials pay one-half of the costs resulting from the court-ordered elimination of the segregated condition of the school system fell within the prospective-compliance exception established by Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) and Edelman, 415 U.S. at 664, 94 S.Ct. at 1356. Milliken, 433 U.S. at 288-290, 97 S.Ct. at 2761-2762.

Even assuming that Milliken could be read to stand for the proposition raised by the defendants, the Court notes that the question of whether the Eleventh Amendment requires the dismissal of a state defendant, an issue not directly pressed in Milliken, was squarely addressed by the Supreme Court four years later in Alabama v. Pugh, 438 U.S. at 781, 98 S.Ct. at 3057. See Los Angeles Branch NAACP v. Los Angeles Unified School District, 714 F.2d 946, 950 n. 4 (9th Cir.1983), cert. denied, ___ U.S. ____, 104 S.Ct. 2398, 81 L.Ed.2d 354 (1984). In that case, the plaintiffs sued to enjoin the state of Alabama, the Alabama Board of Corrections, as well as a number of state officials for violations of the Constitution in a § 1983 action. 438 U.S. at 781, 98 S.Ct. at 3057. The Supreme Court, in a per curiam opinion, held that "there can be no doubt ... that the suit against the State and its Board of Corrections is barred by the Eleventh Amendment, unless Alabama has consented to the filing of such a suit." Id. at 782, 98 S.Ct. at 3057. As explained by the Quern Court, the case of Alabama v. Pugh was so decided because a state cannot even be joined as a defendant in a § 1983 action without violating the Eleventh Amendment. Quern v. Jordan, 440 U.S. 332, 339, 99 S.Ct. 1139, 1144, 59 L.Ed.2d 358 (1979).⁴ Therefore, we find the issue of whether the Ohio State Board of Education and the Ohio State Department of Education can be sued in this Court for violating federal law is controlled by the Pugh decision and any supposition to the contrary has been dispelled by that case.

Likewise, an argument could be made that the United States Court of Appeals for the Sixth Circuit, in Penick v. Columbus Board of Education, 663 F.2d 24 (6th Cir. 1981) and Reed v. Rhodes, 662 F.2d 1219 (6th Cir.1981), impliedly found no violation of the Eleventh Amendment when, in both cases, the Ohio State Board of Education was made a defendant. It appears, however, that the Court assumed that jurisdiction existed and the issue of the Board's immunity was never directly presented to the Court as a contention of the parties. See e.g., Penick v. Columbus Board of Education, 429 F.Supp. 229, 233 (S.D.Ohio 1977), aff'd, 443 U.S. 449, 99 S.Ct. 2941, 61 L.Ed.2d 666 (1979) ("counsel for the Columbus defendants and for the State of Ohio defendants do not dispute the Court's jurisdiction."). The Sixth Circuit has followed the holding of the Pugh decision when "the State of Ohio has squarely raised ... the issue of its sovereign immunity...." State of Ohio v. Madeline Marie Nursing Homes, 694 F.2d 449, 457-458 (6th Cir. 1982). See also Foulks v. Ohio Department of Rehabilitation and Correction, 713 F.2d 1229, 1232 (6th Cir.1983) (citing Pugh with approval). Because this Court is required to follow constitutional law as defined by the Supreme Court, the decision of Pugh is binding precedent. Cooper v. Aaron, 358 U.S. 1, 18, 78 S.Ct. 1401, 1409, 3 L.Ed.2d 5 (1958). See Pennhurst, 104 S.Ct. at 918, citing Hagans v. Lavine, 415 U.S. 528, 533 n. 5, 94 S.Ct. 1372, 1377 n. 5, 39 L.Ed.2d 577 (1974) ("when questions of jurisdiction have been passed on in prior decisions sub silentio, this Court has never considered itself bound when a subsequent case finally brings the jurisdictional issue before us.").

When an action is brought against a state agency, the application of the Eleventh Amendment centers on whether the agency can be characterized as an arm or alter ego of the state, thereby sharing the state's Eleventh Amendment immunity, or whether it can be characterized as a municipal corporation or other political subdivision, which does not partake of the state's immunity. Hall v. Medical College of Ohio, 742 F.2d 299, 301 (6th Cir.1984). Although the issue itself turns on federal law, the answer depends, in part, on the nature of the entity created by state law. Mt. Healthy v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977). The term "state" is defined in Ohio Revised Code § 2743.01 (Page 1981) to include "all departments and boards ... of the state of Ohio." Id. Ohio decisions holding that state universities, state hospitals, and school boards of education are instrumentalities or arms of the state lend sufficiently analogous support to the finding that a state board and a state department are arms of the state. See e.g., Thacker v. Board of Trustees, 35 Ohio St. 2d 49, 298 N.E.2d 542 (1973), overruled in part on other grounds, Schenkolewski v. Cleveland Metroparks System, 67 Ohio St. 2d 31, 36 n. 4, 426 N.E.2d 784, 787 n. 4 (1981); Brown v. Board of Education, 20 Ohio St. 2d 68, 253, N.E.2d 767 (1969). See also Madeline Marie Nursing Homes, 694 F.2d at 458; Ohio CONST. art. VI, § 4 (1851); Ohio Rev.Code § 3301.011 et seq. (Page 1981). The Court concludes, therefore, that the Ohio State Board of Education and the Ohio State Department of Education, as arms of the state, are enveloped by the state's Eleventh Amendment immunity.

Finding that this Court has no jurisdiction over the Ohio State Department of Education and the Ohio State Board of Education by virtue of the Eleventh Amendment, the Court hereby DISMISSES the parties from this action. Pugh, 438 U.S. at 781, 98 S.Ct. at 3057; Bailey v. Ohio State University, 487 F.Supp. 601, 603 (S.D.Ohio 1980). See Gwinn Area Community Schools v. State of Michigan, 741 F.2d 840 (6th Cir.1984); Los Angeles Unified...