Estate of Ritter by Ritter v. University of Michigan, 87-1691

• Citation: 851 F.2d 846
• Decision Date: 14 July 1988
• Docket Number: No. 87-1691,87-1691
• Parties: 48 Ed. Law Rep. 61 ESTATE OF Melvin RITTER, Deceased, by Jonnie Mae RITTER, Personal Representative, Plaintiff-Appellant, v. UNIVERSITY OF MICHIGAN, University of Michigan Hospital, State of Michigan, Board of Regents, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 846

851 F.2d 846

48 Ed. Law Rep. 61

ESTATE OF Melvin RITTER, Deceased, by Jonnie Mae RITTER Personal Representative, Plaintiff-Appellant, v. UNIVERSITY OF MICHIGAN, University of Michigan Hospital State of Michigan, Board of Regents, Defendants-Appellees.

No. 87-1691.

United States Court of Appeals, Sixth Circuit.

Argued April 28, 1988.

Decided July 14, 1988.

Sheryl R. Lederman, Thurswell, Chayet & Weiner, Cyril V. Weiner, Lisa Wunder

(argued), Southfield, Mich., for plaintiff-appellant.

Robert G. Kamenec (argued), Richard D. O'Conner, Detroit, Mich., for defendants-appellees.

Before KRUPANSKY and BOGGS, Circuit Judges, and BROWN, Senior Circuit Judge.

BAILEY BROWN, Senior Circuit Judge.

This is an appeal from a grant of summary judgment for defendant Board of Regents of the University of Michigan and dismissal of plaintiff's case by the district court on the ground that the law upon which plaintiff relied did not create a right to monetary relief for which plaintiff sued. We conclude that, whether or not the disposition by the court on this ground was correct, under the eleventh amendment the federal district court had no jurisdiction. Accordingly, we vacate and remand for further proceedings consistent with this opinion.

I

This action was brought in the Court of Claims of the State of Michigan ¹ by Jonnie Mae Ritter, as personal representative of her deceased husband, Melvin Ritter, for money damages against the University of Michigan, University of Michigan Hospital, State of Michigan, and the Board of Regents of the University of Michigan. ² In the complaint, plaintiff alleged that Melvin Ritter, an "intravenous drug abuser," was on March 17, 1984, admitted to the emergency room of the Northwest General Hospital with a history of aortic valve replacement and with indications of infective endocarditis. On that day "a determination was made that the patient should be transferred to another facility for more vigorous care." However, the Detroit Osteopathic Hospital, Wayne County General Hospital, Henry Ford Hospital and the University of Michigan Hospital refused to accept Ritter because he was an "intravenous drug abuser and because he had no medical insurance." It was further alleged that Ritter needed heart surgery and that later, on March 28, 1984, he was actually admitted to Henry Ford Hospital where surgery was done and that he died soon thereafter. It was alleged that the defendants who were sued in this case owed Ritter a patient-physician duty and a duty as a beneficiary of a contract between these defendants, which duty was breached by them, causing his death. ³ It was further alleged that the defendants were liable to plaintiff under 42 U.S.C. section 1983 and also because the failure to accept Ritter as a patient violated a duty under "Public Health and Welfare Title 42, U.S.C., the Hill-Burton Act, Medicare and State Welfare" and under the Michigan Hospital Licensing Act and regulations of the Michigan Department of Health. ⁴

The Board of Regents, by petition, removed the case to the United States District Court for the Eastern District of Michigan, Southern Division, on the basis of federal question jurisdiction. ⁵

The Board of Regents then moved for summary judgment. In response to this motion, plaintiff, in addition to relying on the theories of recovery set out in her complaint, moved the court to be allowed to amend her complaint to allege that Melvin Ritter, as a drug abuser, was a handicapped person and to allege discrimination under section 504 of the Rehabilitation Act (29 U.S.C. section 794), under 42 U.S.C. section 290ee-2 (prohibiting discrimination against drug abusers in admission to hospitals), and under 42 U.S.C. section 1983 for violation of rights created by section 504 of the Rehabilitation Act and 42 U.S.C. section 290ee-2. The district court then granted the motion of the Board of Regents for summary judgment, and in doing so, ruled that the statutes on which plaintiff relied in her motion to amend her complaint, as well as the other theories for recovery alleged by her, could not be a basis for a claim for money damages against the Board.

Plaintiff then appealed. At oral argument in this court, we pointed out that, while the Board had contended in the district court that it was immune from liability under Michigan law with respect to the plaintiff's claims asserted under that law, it had not contended that it had immunity under the eleventh amendment to the Constitution with respect to jurisdiction in the federal court. This court further pointed out that, if the eleventh amendment is applicable and the Board had not consented to being sued in federal court, the district court had no jurisdiction, that this would be the proper basis for dismissal of the case, and that it would not be necessary for this court to rule on the district court's determination that plaintiff could not recover retroactive monetary relief against the Board on the theories relied upon by plaintiff. We also invited the attention of counsel to the decision in Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985), in which the Court held that by receipt of federal funds the defendant state hospital had not waived its eleventh amendment immunity to an action under section 504 of the Rehabilitation Act for monetary relief for alleged discrimination against plaintiff because of his handicap and that, by the enactment of section 504, Congress had not abrogated the state's constitutional immunity. ⁶ We requested counsel to file supplemental briefs on the question whether the district court was devoid of jurisdiction because of the applicability of the eleventh amendment.

The Board has responded by asserting the eleventh amendment defense. In her supplemental brief, plaintiff makes two arguments that the eleventh amendment did not deprive the district court of jurisdiction: (1) that the Board is not a state agency so that the eleventh amendment does not apply to it, and (2) that, by removing this case from the Michigan court of claims to a federal district court and in not raising the eleventh amendment defense theretofore, the Board of Regents waived any eleventh amendment immunity that it might have had. The plaintiff further contends that, if this court cannot, on the present record, conclude that the eleventh amendment is inapplicable to the Board, we should remand to the district court for further development of the record as to the status of the Board. We conclude that, based on the present record, the Board of Regents unquestionably is a state agency to which the amendment applies and that it did not waive its eleventh amendment immunity by removing this cause to the district court and by its prior failure to raise the defense.

II

A. Applicability of eleventh amendment

While the question whether the eleventh amendment is applicable here is ultimately one of federal law, we must consider the position of the Board of Regents under state law in making the determination. Long v. Richardson, 525 F.2d 74 (6th Cir.1975).

Under article 8, section 5 of the Michigan Constitution the "regents of the University of Michigan ... shall constitute a body corporate known as the Regents of the University of Michigan" and, under section 4, "[t]he legislature shall appropriate moneys to maintain the University of Michigan" and "shall be given an annual accounting of all income and expenditures" of the university. Under Mich.Comp.Laws Ann. section 390.8, the university is required to maintain a department of medicine.

Without question, if this case had been litigated in the judicial system of the State of Michigan, it would have been required to be litigated in the court of claims, where it was filed, as a claim against the state for retroactive monetary relief. As stated in Sprik v. Regents of the Univ. of Michigan, 43 Mich.App. 178, 184, 204 N.W.2d 62, 65 (1972) (citations omitted), aff'd 390 Mich. 84, 210 N.W.2d 332 (1973): "The Court of Claims has exclusive jurisdiction over claims against the State. As the University of Michigan is a State institution, this includes claims against the Regents."

In Fox v. Board of Regents of the Univ. of Michigan, 375 Mich. 238, 134 N.W.2d 146 (1965), an action for money damages was filed in a Michigan circuit court against the Board of Regents for alleged malpractice in the University of Michigan hospital. It was held that the court had no jurisdiction and that jurisdiction was limited to the court of claims as an action against the state or state agency. On the other hand, jurisdiction of an action for monetary relief against a community college in Michigan was properly laid in a state circuit court, not in a state court of claims. The community college was not a state agency because it was created by local vote, not by the constitution or legislative act. Doan v. Kellogg Community College, 80 Mich.App. 316, 263 N.W.2d 357 (1977).

In Taylor v. Auditor General, 360 Mich. 146, 150, 103 N.W.2d 769, 771 (1960), it was held that the court of claims was created "for the purpose of hearing and determining 'all claims and demands, liquidated and unliquidated, ex contractu and ex delictu, against the state,' " (quoting Manion v. State Highway Comm'r, 303 Mich. 1, 20, 5 N.W.2d 527, 528 (1942)).

Pursuant to Mich.Comp.Laws Ann. section 600.6458, if a judgment is obtained in the court of claims against the "state, or any ... board, ... arm or agency thereof," the court must determine and specify in the judgment the one from whose appropriation the judgment shall be paid and the judgment will be paid from the "unencumbered appropriation of the [designated] ... board, ... arm or agency." Moreover, the statute provides that if funds are not available in the designated unencumbered appropriation to satisfy the judgment, the auditor general will instruct the clerk of the court to issue a voucher against an appropriation made by the...