Patteson v. Johnson

• Decision Date: 03 May 1985
• Docket Number: No. 84-876,84-876
• Parties: Chuck R. PATTESON, Appellee and Cross-Appellant, v. Ray A.C. JOHNSON, Appellant and Cross-Appellee.
• Court: Nebraska Supreme Court

Page 123

367 N.W.2d 123

219 Neb. 852

Chuck R. PATTESON, Appellee and Cross-Appellant, v. Ray A.C. JOHNSON, Appellant and Cross-Appellee.

No. 84-876.

Supreme Court of Nebraska.

May 3, 1985.

Syllabus by the Court

1. Constitutional Law: Actions: Statutes. Neb.Rev.Stat. § 20-148 (Reissue 1983) does not constitute a waiver of sovereign immunity by the State of Nebraska for actions brought in federal court under 42 U.S.C. § 1983 (1982).

2. Constitutional Law: Actions: Statutes. Todd v. Board of Educational Lands and Funds, 154 Neb. 606, 48 N.W.2d 706 (1951), does not interpret any enactment of the Nebraska Legislature as 3. Constitutional Law: Actions: Statutes. The provision of Neb.Const. art. V, § 22, which states, "The state may sue and be sued, and the Legislature shall provide by law in what manner and in what courts suits shall be brought," is not self-executing. Legislative action is necessary to make it available.

constituting a waiver of this state's sovereign immunity for actions brought in federal court pursuant to contract.

4. Supreme Court: Statutes: Appeal and Error. The Nebraska Supreme Court is the final arbiter in matters of Nebraska law; as such, it must make its own analysis and reach its own conclusions with respect to questions of Nebraska law.

5. Courts: Constitutional Law. State courts have as great a constitutional obligation to uphold and protect the federal Constitution and law as do the federal courts.

Paul L. Douglas, Atty. Gen., and Sharon M. Lindgren, Lincoln, for appellant and cross-appellee.

James B. Gessford of Perry, Perry, Witthoff, Guthery, Haase & Gessford, P.C. Lincoln, for appellee and cross-appellant.

Theodore L. Kessner of Crosby, Guenzel, Davis, Kessner & Kuester, Lincoln, for amicus curiae Nebraska State Educ. Ass'n.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

CAPORALE, Justice.

This court, pursuant to the provisions of Neb.Rev.Stat. § 24-219 (Cum.Supp.1984), accepted two questions of law certified to it by the U.S. Court of Appeals for the Eighth Circuit. In response thereto we reaffirm our earlier determination that Neb.Rev.Stat. § 20-148 (Reissue 1983) does not constitute a waiver of sovereign immunity by the State of Nebraska for actions brought in federal court under 42 U.S.C. § 1983 (1982). We also answer that our decision in Todd v. Board of Educational Lands and Funds, 154 Neb. 606, 48 N.W.2d 706 (1951), does not constitute a waiver of the State of Nebraska's sovereign immunity for actions brought in federal court pursuant to a contract.

BACKGROUND

The questions certified to us arise in an action commenced in the U.S. District Court for the District of Nebraska by Chuck R. Patteson against Ray A.C. Johnson. Case No. CV81-L-217 (D.Neb.1981). Since we do not resolve the matter, we find it unnecessary to set forth all the facts surrounding the dispute; the circumstances under which the case and controversy arose may be found in the opinion of the circuit court in Patteson v. Johnson, 721 F.2d 228 (8th Cir.1983).

It is sufficient for our purposes to note that for a time Patteson was the deputy auditor for this state, having been so appointed by Johnson, the State Auditor. During his tenure as such, Patteson refused to sign an audit because he considered it to be deficient. He also gave certain legislative testimony concerning that audit and another matter. As a consequence, the relationship between Johnson and Patteson deteriorated, and Johnson terminated Patteson's employment with the state.

The district court, Chief Judge Warren K. Urbom, initially dismissed Patteson's civil rights and state law claims against Johnson. Upon remand by the circuit court, Patteson v. Johnson, supra, the district court found that reinstatement of Patteson's employment was in order. That court further observed, however, that because of the nature of the relationship between Patteson and Johnson, the chances were "excellent that he [Patteson] would not remain in place for more than a few months and perhaps less and would furnish virtually no useful service as Johnson's deputy." Accordingly, that court offered Johnson, as coextensive relief to Patteson in both the civil rights and state claims presented by the latter's complaint, the alternatives of either reinstating Patteson or paying him the sum of $10,800. The

                amount to be paid, were [219 Neb. 854] that the alternative selected, was characterized by the district court as representing the salary and other benefits Patteson would accrue if he were to be reinstated for the period he reasonably could be expected to remain.  The district court specifically stated the sum was not damages but, rather, was an equitable substitute for a "fruitless and ill-fated reinstatement."   See Patteson v. Johnson, No. CV81-L-217, slip op. at 5 and 6 (D.Neb. Feb. 24, 1984)
                

FIRST QUESTION

The first question certified reads as follows: "Does Neb.Rev.Stat. § 20-148 (1977) constitute a waiver of sovereign immunity by the State of Nebraska for actions brought in federal court under 42 U.S.C. § 1983 (1982)?"

The question arises by virtue of the 1977 enactment of § 20-148, now found in the 1983 Reissue of the Revised Statutes of Nebraska, which provides:

(1) Any person or company, as defined in section 49-801, except any political subdivision, who subjects or causes to be subjected any citizen of this state or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the United States Constitution or the Constitution and laws of the State of Nebraska, shall be liable to such injured person in a civil action or other proper proceeding for redress brought by such injured person.

(2) The remedies provided by this section shall be in addition to any other remedy provided by Chapter 20, article 1, and shall not be interpreted as denying any person the right of seeking other proper remedies provided thereunder.

This court, subsequent to certification of the question, decided Wiseman v. Keller, 218 Neb. 717, 358 N.W.2d 768 (1984). That decision analyzed the issue and answers the question in the negative. Further discussion of that question and the rationale for our answer is, therefore, unnecessary.

SECOND QUESTION

The second question reads: "Does the decision of the Nebraska Supreme Court in Todd v. Board of Educational Lands & Funds, 154 Neb. 606, 48 N.W.2d 706 (1951), constitute a waiver of the State of Nebraska's sovereign immunity for actions brought in federal court pursuant to a contract?"

Applicable Federal Principles

While it is not within our province to rule upon questions of federal law in this inquiry, and we do not undertake to do so, we review briefly certain federal principles relating to the issue of sovereign immunity in order to provide a setting for our analysis of the applicable Nebraska law.

The eleventh amendment to the U.S. Constitution 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." However, the notion of sovereign immunity antedates eleventh amendment immunity and is a separate and distinct concept. "A finding respecting either the waiver or the applicability of one does not necessarily mandate the same result as to the other." Karpovs v. State of Miss., 663 F.2d 640, 645 (5th Cir.1981).

The U.S. Supreme Court, in Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984), stated that "the principle of sovereign immunity is a constitutional limitation on the federal judicial power established in Art. III."

The Court went on to say:

"That a State may not be sued without its consent is a fundamental rule of jurisprudence having so important a bearing upon the construction of the Constitution of the United States that it has become established by repeated decisions of this court that the entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a State without consent given: not one brought by citizens of another State, or by citizens or subjects of a foreign State, because of the Eleventh Amendment; and not even one brought by its own citizens, because of the fundamental rule of which the Amendment is but an exemplification." Ex parte State of New York No. 1, 256 U.S. 490, 497, 41 S.Ct. 588, 589, 65 L.Ed. 1057 (1921) (emphasis added).

104 S.Ct. at 907.

In construing the scope of this immunity, the U.S. Supreme Court has held that, generally, suits against a state for prospective injunctive relief are permitted in limited circumstances, Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), but that suits against the state treasury are barred. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). In Pennhurst, supra, the Court explained that "when a plaintiff sues a state official alleging a violation of federal law, the federal court may award an injunction that governs the official's future conduct, but not one that awards retroactive monetary relief." 104 S.Ct. at 909. Where the action is one for the recovery of money, the immunity extends beyond the state and includes state officials and employees because " 'the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants.' " Karpovs v. State of Miss., supra at 643, quoting Ford Co. v. Dept. of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945).

Although a state may waive its eleventh amendment immunity from suit in the federal courts, such a waiver will only be found where stated by the most express language or by such overwhelming implication from the text as leaves no room for any other construction. Pennhurst...