Even if the Health & Hospital Corporation of Marion County follows the request by community groups and private citizens to withdraw its case from the U.S. Supreme Court, the fight over 42 U.S.C. § 1983 could still appear before the nine justices this term.
The Indiana agency has been under pressure to pull its petition in HHC, et al. v. Talevski, 21-806, which raises the question of whether individuals can sue under Section 1983 to enforce their rights in spending clause statutes. Lawmakers have been calling on HHC to drop the case and, according to the Indiana Capital Chronicle, protestors pleaded with the board of trustees during an Oct. 18 meeting to pull the petition.
The effort to stop the case got a boost from Indiana Public Access Counselor Luke Britt. In a Sept. 30 ruling, Britt found HHC violated the state’s Open Door Law by not getting the board’s approval before petitioning for certiorari at the Supreme Court.
Morgan Daly of the Indiana Statewide Independent Living Council filed the complaint with the access counselor.
“I wanted and still expect HHC to do what is right and pull their petition from the U.S. Supreme Court,” Daly wrote in an email to Indiana Lawyer. “I was concerned that the HHC Trustees, when questioned, didn’t know about this case. Many of the Trustees may be personally and negatively impacted by a Supreme court decision in favor of HHC.”
According to Daly, “grassroots organizations, advocates and concerned citizens” have been trying to prevent the Talevski case from being heard by the Supreme Court. Multiple people searched through five years of HHC records, and when they could not find any notice or discussion of the case, she sought recourse through the Open Door Law.
However, in his ruling, Britt conceded it is not clear if a judicial remedy is available in this situation.
Daly said she is pursuing legal action against each trustee in his or her individual capacity.
“I was optimistic that they would bring a motion to withdraw at their last board of trustees meeting,” Daly wrote. “They could have voted to withdraw based on the Open Door violation. They should have voted to withdraw due to the negative impact this case will likely have on Hoosiers — the people they are appointed to serve.”
Yet even if HHC steps aside, a petition from South Carolina making much the same Section 1983 argument is waiting for a grant of certiorari.
The petition in that case, Robert M. Kerr v. Julie Edwards, et al., was filed in May 2022 and has attracted several groups who are asking the Supreme Court to hear the case. Among the amici briefs is one filed by Indiana Attorney General Todd Rokita, who is arguing the private right of action “interferes with administration and enforcement mechanisms” that states consider when deciding whether to participate in federal programs.
The petition in the South Carolina case was most recently distributed for conference on Sept. 28.•