Eleventh Amendment--Suits Against States |
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ELEVENTH AMENDMENT
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SUITS AGAINST STATES
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CONTENTS
Page
State Immunity............................................ 1521
Purpose and Early Interpretation.......................... 1521
Expansion of the Immunity of the States........... 1525
The Nature of the States' Immunity........................ 1527
Suits Against States...................................... 1531
Consent to Suit and Waiver........................ 1531
Congressional Withdrawal of Immunity.............. 1533
Suits Against State Officials............................. 1537
Tort Actions Against State Officials...................... 1544
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ELEVENTH AMENDMENT
SUITS AGAINST STATES
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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.
STATE IMMUNITY
Purpose and Early Interpretation
Eleventh Amendment jurisprudence has become over the years
esoteric and abstruse and the decisions inconsistent. At the same time,
it is a vital element of federal jurisdiction that ``go[es] to the very
heart of [the] federal system and affect[s] the allocation of power
between the United States and the several states.''\1\ Because of the
centrality of the Amendment at the intersection of federal judicial
power and the accountability of the States and their officers to federal
constitutional standards, it has occasioned considerable dispute within
and without the Court.\2\
\1\C. Wright, The Law of Federal Courts Sec. 48 at 286 (4th ed.
1983).
\2\An extraordinary amount of writing on the Amendment and its
interpretation has appeared in recent years. See, e.g., Field, The
Eleventh Amendment and Other Sovereign Immunity Doctrines: Part One, 126
U. Pa. L. Rev. 515 (1978); Field, The Eleventh Amendment and Other
Sovereign Immunity Doctrines: Congressional Imposition of Suit Upon the
States, 126 U. Pa. L. Rev. 1203 (1978); Baker, Federalism and the
Eleventh Amendment, 48 U. Colo. L. Rev. 139 (1977); Tribe,
Intergovernmental Immunities in Litigation, Taxation, and Regulation:
Separation of Powers Issues in Controversies About Federalism, 89 Harv.
L. Rev. 682 (1976); Gibbons, The Eleventh Amendment and State Sovereign
Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889 (1983); Fletcher, A
Historical Interpretation of the Eleventh Amendment: A Narrow
Construction of an Affirmative Grant of Jurisdiction Rather than a
Prohibition Against Jurisdiction, 35 Stan. L. Rev. 1033 (1983); Orth,
The Interpretation of the Eleventh Amendment, 1798-1908: A Case Study of
Judicial Power, 1983 U. Ill. L. Rev. 423; Nowak, The Scope of
Congressional Power to Create Causes of Action Against State Government
and the History of the Eleventh and Fourteenth Amendments, 75 Colum. L.
Rev. 1413 (1975).
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The action of the Supreme Court in accepting jurisdiction of a
suit against a State by a citizen of another State in 1793\3\ provoked
such angry reaction in Georgia and such anxieties in other States that
at the first meeting of Congress following the decision the Eleventh
Amendment was proposed by an overwhelming vote of both Houses and
ratified with, what was for that day, ``vehement
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speed.''\4\ Chisholm had been brought under that part of the
jurisdictional provision of Article III that authorized cognizance of
``controversies . . . between a State and Citizens of another State.''
At the time of the ratification debates, opponents of the proposed
Constitution had objected to the subjection of a State to suits in
federal courts and had been met with conflicting responses--- on the one
hand, an admission that the accusation was true and that it was entirely
proper so to provide, and, on the other hand, that the accusation was
false and the clause applied only when a State was the party
plaintiff.\5\ So matters stood when Congress, in enacting the Judiciary
Act of 1789, without recorded controversy gave the Supreme Court
original jurisdiction of suits between States and citizens of other
States.\6\ Chisholm v. Georgia was brought under this jurisdictional
provision to recover under a contract for supplies executed with the
State during the Revolution. Four of the five Justices agreed that a
State could be sued under this Article III jurisdictional provision and
that under section 13 the Supreme Court properly had original
jurisdiction.\7\
\3\Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793).
\4\The phrase is Justice Frankfurter's, from Larson v. Domestic
& Foreign Commerce Corp., 337 U.S. 682, 708 (1949) (dissenting), a
federal sovereign immunity case. The amendment was proposed on March 4,
1794, when it passed the House; ratification occurred on February 7,
1795, when the twelfth State acted, there then being fifteen States in
the Union.
\5\The Convention adopted this provision largely as it came from
the Committee on Detail, without recorded debate. 2 M. Farrand, The
Records of the Federal Convention of 1787 423-25 (rev. ed. 1937). In the
Virginia ratifying convention, George Mason, who had refused to sign the
proposed Constitution, objected to making States subject to suit, 3 J.
Elliot, Debates in the Several State Conventions on the Adoption of the
Federal Constitution 526-27 (1836), but both Madison and John Marshall
(the latter had not been a delegate at Philadelphia) denied States could
be made party defendants, id. at 533, 555-56, while Randolph (who had
been a delegate, as well as a member of the Committee on Detail) granted
that States could be and ought to be subject to suit. Id. at 573. James
Wilson, a delegate and member of the Committee on Detail, seemed to say
in the Pennsylvania ratifying convention that States would be subject to
suit. 2 id. at 491. See Hamilton, in The Federalist No. 81 (Modern
Library ed. 1937), also denying state suability. See Fletcher, supra
n.2, at 1045-53 (discussing sources and citing other discussions).
\6\Ch. 20, Sec. 13, 1 Stat. 80 (1789). See also Fletcher, supra
n.2, at 1053-54. For a thorough consideration of passage of the Act
itself, see J. Goebel, History of The Supreme Court of the United
States: Vol. 1, Antecedents and Beginnings to 1801 457-508 (1971).
\7\Id. at 723-34; Fletcher, supra n.2, at 1054-58.
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The Amendment proposed by Congress and ratified by the States
was directed specifically toward overturning the result in Chisholm and
preventing suits against States by citizens of other States or by
citizens or subjects of foreign jurisdictions. It did not, as other
possible versions of the Amendment would have done, altogether bar suits
against States in the federal courts.\8\ That is, it
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barred suits against States based on the status of the party plaintiff
and did not address the instance of suits based on the nature of the
subject matter.\9\ The early decisions seemed to reflect this
understanding of the Amendment, although the point was not necessary to
the decisions and thus the language is dictum.\10\ In Cohens v.
Virginia,\11\ Chief Justice Marshall ruled for the Court that the
prosecution of a writ of error to review a judgment of a state court
alleged to be in violation of the Constitution or laws of the United
States did not commence or prosecute a suit against the State but was
simply a continuation of one commenced by the State, and thus could be
brought under Sec. 25 of the Judiciary Act of 1789.\12\ But in the
course of the opinion, the Chief Justice attributed adoption of the
Eleventh Amendment not to objections to subjecting States to suits per
se but to well-founded concerns about creditors being able to maintain
suits in federal courts for payment,\13\ and stated his view that the
Eleventh Amendment did not
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bar suits against the States under federal question jurisdiction\14\ and
did not in any case reach suits against a State by its own citizens.\15\
\8\Id. at 1058-63; Goebel, supra n.6, at 736.
\9\Party status is one part of the Article III grant of
jurisdiction, as in diversity of citizenship of the parties; subject
matter jurisdiction is the other part, as in federal question or
admiralty jurisdiction.
\10\One square holding, however, was that of Justice Washington,
on Circuit, in United States v. Bright, 24 Fed. Cas. 1232 (C.C.D.Pa.
1809) (No. 14,647), that the Eleventh Amendment's reference to ``any
suit in law or equity'' excluded admiralty cases, so that States were
subject to suits in admiralty. This understanding, see Governor of
Georgia v. Madrazo, 26 U.S. (1 Pet.) 110, 124 (1828); 3 J. Story,
Commentaries of the Constitution of the United States 560-61 (1833), did
not receive a holding of the Court during this period, see Georgia v.
Madrazo, supra; United States v. Peters, 9 U.S. (5 Cr.) 115 (1809); Ex
parte Madrazo, 32 U.S. (7 Pet.) 627 (1833), and was held to be in error
in Ex parte New York (No. 1), 256 U.S. 490 (1921).
\11\19 U.S. (6 Wheat.) 264 (1821).
\12\1 Stat. 73, 85, supra, pp.701-05, 723-25.
\13\``It is a part of our history that, at the adoption of the
constitution, all the states were greatly indebted; and the apprehension
that these debts might be prosecuted in the federal courts, formed a
very serious objection to that instrument. Suits were instituted; and
the court maintained its jurisdiction. The alarm was general; and, to
quiet the apprehensions that were so extensively entertained, this
amendment was proposed in congress, and adopted by the state
legislatures. That its motive was not to maintain the sovereignty of a
state from the degradation supposed to attend a compulsory appearance
before the tribunal of the nation, may be inferred from the terms of the
amendment. It does not comprehend controversies between two or more
states, or between a state and a foreign state. The jurisdiction of the
court still extends to these cases: and in these, a state may still be
sued. We must ascribe the amendment, then, to some other cause than the
dignity of a state. There is no difficulty in finding this cause. Those
who were inhibited from commencing a suit against a state, or from
prosecuting one which might be commenced before the adoption of the
amendment, were persons who might probably be its creditors. There was
not much reason to fear that foreign or sister states would be creditors
to any considerable amount, and there was reason to retain the
jurisdiction of the court in those cases, because it might be essential
to the preservation of peace. The amendment, therefore, extended to
suits commenced or prosecuted by individuals, but not to those brought
by states.'' 6 Wheat. at 406-07.
\14\``The powers of the Union, on the great subjects of war,
peace and commerce, and on many others, are in themselves limitations of
the sovereignty of the states; but in addition to these, the sovereignty
of the states is surrendered, in many instances, where the surrender can
only operate to the benefit of the people, and where, perhaps, no other
power is conferred on congress than a conservative power to maintain the
principles established in the constitution. The maintenance of these
principles in their purity, is certainly among the great duties of the
government. One of the instruments by which this duty may be peaceably
performed, is the judicial department. It is authorized to decide all
cases of every description, arising under the constitution or laws of
the United States. From this general grant of jurisdiction, no exception
is made of those cases in which a state may be a party. . . . [A]re we
at liberty to insert in this general grant, an exception of those cases
in which a state may be a party? Will the spirit of the constitution
justify this attempt to control its words? We think it will not. We
think a case arising under the constitution or laws of the United
States, is cognizable in the courts of the Union, whoever may be the
parties to that case.'' Id. at 382-83.
\15\``If this writ of error be a suit, in the sense of the 11th
amendment, it is not a suit commenced or prosecuted `by a citizen of
another state, or by a citizen or subject of any foreign state.' It is
not, then, within the amendment, but is governed entirely by the
constitution as originally framed, and we have already seen, that in its
origin, the judicial power was extended to all cases arising under the
constitution or laws of the United States, without respect to parties.''
Id. at 412.
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In Osborn v. Bank of the United States,\16\ the Court, again
through Chief Justice Marshall, held that the Bank of the United
States\17\ could sue the Treasurer of Ohio, over Eleventh Amendment
objections, because the plaintiff sought relief against a state officer
rather than against the State itself. This ruling embodied two
principles, one of which has survived and one of which the Marshall
Court itself soon abandoned. The latter holding was that a suit is not
one against a State unless the State is a named party of record.\18\ The
former holding, the primary rationale through which the strictures of
the Amendment are escaped, is that a state official possesses no
official capacity when acting illegally and thus
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can derive no protection from an unconstitutional statute of a
State.\19\
\16\22 U.S. (9 Wheat.) 738 (1824).
\17\The Bank of the United States was treated as if it were a
private citizen, rather than as the United States itself, and hence a
suit by it was a diversity suit by a corporation, as if it were a suit
by the individual shareholders. Bank of the United States v. Deveaux, 9
U.S. (5 Cr.) 61 (1809).
\18\9 Wheat. at 850-58. For a reassertion of the Chief Justice's
view of the limited effect of the Amendment, see id. at 857-58. But
compare id. at 849. The holding was repudiated in Governor of Georgia v.
Madrazo, 26 U.S. (1 Pet.) 110 (1828), in which it was conceded that the
suit had been brought against the governor solely in his official
capacity and with the design of forcing him to exercise his official
powers. It is now well settled that in determining whether a suit is
prosecuted against a State ``the Court will look behind and through the
nominal parties on the record to ascertain who are the real parties to
the suit.'' In re Ayers, 123 U.S. 443, 487 (1887).
\19\9 Wheat. at 858-59, 868. For the flowering of the principle,
see Ex parte Young, 209 U.S. 123 (1908).
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Expansion of the Immunity of the States.--Until the period
following the Civil War, Chief Justice Marshall's understanding of the
Amendment generally prevailed. But in the aftermath of that conflict,
Congress for the first time effectively gave the federal courts general
federal question jurisdiction,\20\ and a large number of States in the
South defaulted upon their revenue bonds in violation of the Contracts
Clause of the Constitution.\21\ As bondholders sought relief in federal
courts, the Supreme Court gradually worked itself into the position of
holding that the Eleventh Amendment, or more properly speaking the
principles ``of which the Amendment is but an exemplification,''\22\ is
a bar not only of suits against a State by citizens of other States, but
also of suits brought by citizens of that State itself.\23\ Expansion as
a formal holding occurred in Hans v. Louisiana,\24\ a suit against the
State by a resident of that State brought in federal court under federal
question jurisdiction, alleging a violation of the Contracts Clause in
the State's repudiation of its obligation to pay interest on certain
bonds. Admitting that the Amendment on its face prohibited only the
entertaining of a suit against a State by citizens of another State, or
citizens or subjects of a foreign state, the Court nonetheless thought
the literal language was an insufficient basis for decision. Rather,
wrote Justice Bradley for the Court, the Eleventh Amendment was a result
of the ``shock of surprise throughout the country'' at the Chisholm
decision and reflected the determination that that decision was wrong
and that federal jurisdiction did not extend to making defendants of
unwilling States.\25\ The amendment reversed an erroneous decision and
restored the proper interpretation of the Constitution. The views of the
opponents of subjecting States to suit ``were most sensible and just''
and those views
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``apply equally to the present case as to that then under discussion.
The letter is appealed to now, as it was then, as a ground for
sustaining a suit brought by an individual against a State. The reason
against it is as strong in this case as it was in that. It is an attempt
to strain the Constitution and the law to a construction never imagined
or dreamed of.''\26\ ``The truth is, that the cognizance of suits and
actions unknown to the law, and forbidden by the law, was not
contemplated by the Constitution when establishing the judicial power of
the United States. . . . The suability of a State without its consent
was a thing unknown to the law.''\27\ Thus, while the literal terms of
the Amendment did not so provide, ``the manner in which [Chisholm] was
received by the country, the adoption of the Eleventh Amendment, the
light of history and the reason of the thing,''\28\ led the Court
unanimously to hold that States could not be sued by their own citizens
on grounds arising under the Constitution and laws of the United States.
\20\Act of March 3, 1875, ch. 137, Sec. 1, 18 Stat. 470. See
discussion supra, pp. 713-14.
\21\See, e.g., Orth, The Eleventh Amendment and the North
Carolina State Debt, 59 N.C. L. Rev. 747 (1981); Orth, The Fair Fame and
Name of Louisiana: The Eleventh Amendment and the End of Reconstruction,
2 Tul. Law. 2 (1980); Orth, The Virginia State Debt and the Judicial
Power of the United States, in Ambivalent Legacy: A Legal History of the
South 106 (D. Bodenhamer & J. Ely eds.) (1983).
\22\Ex parte New York (No. 1), 256 U.S. 490, 497 (1921).
\23\E.g., In re Ayers, 123 U.S. 443 (1887); Hagood v. Southern,
117 U.S. 52 (1886); The Virginia Coupon Cases, 114 U.S. 269 (1885);
Cunningham v. Macon & Brunswick R.R. Co., 109 U.S. 446 (1883); Louisiana
v. Jumel, 107 U.S. 711 (1882). In Antoni v. Greenhow, 107 U.S. 769, 783
(1883), three concurring Justices propounded the broader reading of the
Amendment which soon prevailed.
\24\134 U.S. 1 (1890).
\25\Id. at 11.
\26\Id. at 14-15.
\27\Id. at 15-16.
\28\Id. at 18-19. The Court acknowledged that Chief Justice
Marshall's opinion in Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 382-
83, 406-07, 410-12 (1821), was to the contrary, but observed that the
language was unnecessary to the decision and thus dictum, ``and though
made by one who seldom used words without due reflection, ought not to
outweigh the important considerations referred to which lead to a
different conclusion.'' 134 U.S. at 20. For the continuing vitality of
Hans, see infra, text at nn.55-56.
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Then, in Ex parte New York (No. 1),\29\ the Court held that,
absent consent to suit, a State was immune to suit in admiralty, the
Eleventh Amendment's reference to ``any suit in law or equity''
notwithstanding. ``That a State may not be sued without its consent is a
fundamental rule of jurisprudence . . . of which the Amendment is but an
exemplification. . . . It is true the Amendment speaks only of suits in
law or equity; but this is because . . . the Amendment was the outcome
of a purpose to set aside the effect of the decision of this court in
Chisholm v. Georgia . . . from which it naturally came to pass that the
language of the Amendment was particularly phrased so as to reverse the
construction adopted in that case.''\30\ Just as Hans v. Louisiana had
demonstrated the ``impropriety of construing the Amendment'' so as to
permit federal question suits against a State, so ``it seems to us
equally clear that it cannot with propriety be construed to leave open a
suit against a State in the admiralty jurisdiction by individuals,
whether its citizens or not.''\31\
\29\256 U.S. 490 (1921).
\30\Id. at 497-98.
\31\Id. at 498. See also Florida Dep't of State v. Treasure
Salvors, 458 U.S. 670 (1982). And see Welch v. Texas Dep't of Highways &
Pub. Transp., 483 U.S. 468 (1987).
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And in extending protection against suits brought by foreign
governments, the Court made clear the immunity flowed not from the
Eleventh Amendment but from concepts of state sovereign immunity
generally. ``Manifestly, we cannot . . . assume that the letter of the
Eleventh Amendment exhausts the restrictions upon suits against
nonconsenting States. Behind the words of the constitutional provisions
are postulates which limit and control. There is the . . . postulate
that States of the Union, still possessing attributes of sovereignty,
shall be immune from suits, without their consent, save where there has
been `a surrender of this immunity in the plan of the convention.'''\32\
\32\Principality of Monaco v. Mississippi, 292 U.S. 313, 322-23
(1934) (quoting The Federalist No. 81). Similarly, the Court has
recently held, relying on Monaco, the Amendment bars suits by Indian
tribes against non-consenting states. Blatchford v. Native Village of
Noatak, 501 U.S. 775 (1991).
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The Nature of the States' Immunity
A great deal of the difficulty in interpreting and applying the
Eleventh Amendment stems from the fact that the Court has not been
clear, or at least has not been consistent, with respect to what the
Amendment really does and how it relates to the other parts of the
Constitution. One view of the Amendment, set out above in the discussion
of Hans v. Louisiana, Ex parte New York, and Principality of Monaco, is
that Chisholm was erroneously decided and that the Amendment's effect,
its express language notwithstanding, was to restore the ``original
understanding'' that Article III's grants of federal court jurisdiction
did not extend to suits against the States. That view finds present day
expression.\33\ It explains the decision in Edelman v. Jordan,\34\ in
which the Court held that a State could properly raise its Eleventh
Amendment defense on appeal after having defended and lost on the merits
in the trial court. ``[I]t has been well settled . . . that the Eleventh
Amendment defense sufficiently partakes of the nature of a
jurisdictional bar so
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that it need not be raised in the trial court.''\35\ But that the bar is
not wholly jurisdictional seems established as well.\36\
\33\E.g., Employees of the Dep't of Public Health and Welfare v.
Department of Public Health and Welfare, 411 U.S. 279, 291-92 (1973)
(Justice Marshall concurring); Nevada v. Hall, 440 U.S. 410, 420-21
(1979); Patsy v. Florida Board of Regents, 457 U.S. 496, 520 (1982)
(Justice Powell dissenting).
\34\415 U.S. 651 (1974).
\35\Id. at 678. The Court relied on Ford Motor Co. v. Department
of Treasury, 323 U.S. 459 (1945), where the issue was whether state
officials who had voluntarily appeared in federal court had authority
under state law to waive the State's immunity. Edelman has been followed
in Sosna v. Iowa, 419 U.S. 393, 396 n.2 (1975); Mt. Healthy City Bd. of
Educ. v. Doyle, 429 U.S. 274, 278 (1977), with respect to the Court's
responsibility to raise the Eleventh Amendment jurisdictional issue on
its own motion. But see infra, n.36.
\36\See Patsy v. Florida Board of Regents, 457 U.S. 496, 515-16
n.19 (1982), in which the Court bypassed the Eleventh Amendment issue,
which had been brought to its attention, because of the interest of the
parties in having the question resolved on the merits. See id. at 520
(Justice Powell dissenting).
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Moreover, if under Article III there is no jurisdiction of suits
against States, the settled principle that States may consent to
suit\37\ becomes conceptually difficult, inasmuch as it is not possible
to confer jurisdiction where it is lacking through the consent of the
parties.\38\ And there is jurisdiction under Article III of some suits
against States, such as those brought by the United States or by other
States.\39\ And, furthermore, Congress is able in at least some
instances to legislate away state immunity,\40\ although it may not
enlarge Article III jurisdiction.\41\ The Court has recently declared
that ``the principle of sovereign immunity [reflected in the Eleventh
Amendment] is a constitutional limitation on the federal judicial power
established in Art. III,'' but almost in the same breath has
acknowledged that ``[a] sovereign's immunity may be waived.''\42\
\37\Clark v. Barnard, 108 U.S. 436 (1883).
\38\E.g., People's Band v. Calhoun, 102 U.S. 256, 260-61 (1880).
See Justice Powell's explanation in Patsy v. Florida Board of Regents,
457, U.S. 496, 528 n.13 (1982) (dissenting) (no jurisdiction under
Article III of suits against unconsenting States).
\39\See, e.g., the Court's express rejection of the Eleventh
Amendment defense in these cases. United States v. Texas, 143 U.S. 621
(1892); South Dakota v. North Carolina, 192 U.S. 286 (1904).
\40\E.g., Fitzpatrick v. Bitzer, 427 U.S. 445 (1976).
\41\The principal citation is, of course, Marbury v. Madison, 5
U.S. (1 Cr.) 137 (1803).
\42\Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89,
98, 99 (1984).
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Another explanation of the Eleventh Amendment is that it
recognizes the doctrine of sovereign immunity, which was clearly
established at the time: a state was not subject to suit without its
consent.\43\ The Court in dealing with questions of governmental
immunity from suit has traditionally treated interchangeably precedents
dealing with state immunity and those dealing with fed
[[Page 1529]]
eral governmental immunity.\44\ Viewing the Amendment and its radiations
into Article III in this way provides a consistent explanation of the
consent to suit as a waiver.\45\ The limited effect of the doctrine in
this context in federal court arises from the fact that traditional
sovereign immunity arose in a unitary state, barring unconsented suit
against a sovereign in its own courts or the courts of another
sovereign. But upon entering the Union the States surrendered their
sovereignty to some undetermined and changing degree to the national
government, a sovereign that does not have plenary power over them but
which is more than their coequal.\46\
\43\As Justice Holmes explained, the doctrine is based ``on the
logical and practical ground that there can be no legal right as against
the authority that makes the law on which the right depends.''
Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907). On the sovereign
immunity of the United States, see supra, pp.746-48. For the history and
jurisprudence, see Jaffe, Suits Against Governments and Officers:
Sovereign Immunity, 77 Harv. L. Rev. 1 (1963).
\44\See, e.g., United States v. Lee, 106 U.S. 196, 210-14
(1882); Belknap v. Schild, 161 U.S. 10, 18 (1896); Hopkins v. Clemson
Agricultural College, 221 U.S. 636, 642-43, 645 (1911).
\45\A sovereign may consent to suit. E.g., United States v.
Sherwood, 312 U.S. 584, 586 (1941); United States v. United States
Fidelity & Guaranty Co., 309 U.S. 506, 514 (1940).
\46\See Fletcher, supra n.2.
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Thus, outside the area of federal court jurisdiction, there is
the case of Nevada v. Hall,\47\ which perfectly illustrates the
difficulty. The case arose when a California resident sued a Nevada
state agency in a California court because one of the agency's employees
negligently injured him in an automobile accident in California. While
recognizing that the rule during the framing of the Constitution was
that a State could not be sued without its consent in the courts of
another sovereign, the Court discerned no evidence in the federal
constitutional structure, in the specific language, or in the intention
of the Framers that would impose a general, federal constitutional
constraint upon the action of a State in authorizing suit in its own
courts against another State. The Court did imply that in some cases a
``substantial threat to our constitutional system of cooperative
federalism'' might arise and occasion a different result, but this was
not such a case.\48\
\47\440 U.S. 410 (1979).
\48\Id. at 424 n.24. The Court looked to the full faith and
credit clause as a possible constitutional limitation. The dissent would
have found implicit constitutional assurance of state immunity as an
essential component of federalism. Id. at 427 (Justice Blackmun), 432
(Justice Rehnquist).
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Within the area of federal court jurisdiction, the issue becomes
the extent to which the States upon entering the Union gave up their
immunity to suit in federal court. Chisholm held, and the Eleventh
Amendment reversed the holding, that the States had given up their
immunity to suit in diversity cases based on common law or state law
causes of action; Hans v. Louisiana and subsequent cases held that the
Amendment in effect codified an understanding of broader immunity to
suits based on federal causes of
[[Page 1530]]
action.\49\ Other cases have held that the States did give up their
immunity to suits by the United States or by other States and that
subjection to suit continues.\50\ These understandings continue and the
major question unresolved is the extent to which Congress under its
granted powers may remove state immunity to suit in federal court.\51\
\49\For a while only Justice Brennan advocated this view, Parden
v. Terminal Ry., 377 U.S. 184 (1964); Employees of the Dep't of Public
Health and Welfare v. Department of Public Health and Welfare, 411 U.S.
279, 298 (1973) (dissenting), but in time he was joined by three others.
See, e.g., Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 247 (1985)
(Justice Brennan, joined by Justices Marshall, Blackmun, and Stevens),
and other cases cited in n.55, infra.
\50\E.g., United States v. Texas, 143 U.S. 621 (1892); South
Dakota v. North Carolina, 192 U.S. 286 (1904).
\51\Infra, pp.1533-37.
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Still another view of the Eleventh Amendment is that it embodies
a state sovereignty principle limiting the power of the Federal
Government.\52\ In this respect, the federal courts may not act without
congressional guidance in subjecting States to suit, and Congress, which
can act to the extent of its granted powers, is constrained by
judicially-created doctrines requiring it to be explicit when it
legislates against state immunity.\53\
\52\E.g., Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976); Quern
v. Jordan, 440 U.S. 332, 337 (1979).
\53\See Hutto v. Finney, 437 U.S. 678 (1978), in which the
various opinions differ among themselves on the degree of explicitness
required. See also Quern v. Jordan, 440 U.S. 332, 343-45 (1979). Later
cases stiffened the rule of construction. See n.56 infra and, text at
nn.79-84. The parallelism of congressional power to regulate and to
legislate away immunity is not exact. Thus, in Employees of the Dep't of
Public Health and Welfare v. Department of Public Health and Welfare,
411 U.S. 279 (1973), the Court strictly construed congressional
provision of suits as not reaching States, while in Maryland v. Wirtz,
392 U.S. 183 (1968), it had sustained the constitutionality of the
substantive law.
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Considerable ideological agitation within a closely divided
Court has now resulted in parallel rulings that continue the
inconsistencies, or, perhaps, the incoherence, of Eleventh Amendment
jurisprudence. Thus, it is established, though somewhat tentatively,
that Congress may abrogate state immunity under its Article I
powers.\54\ At the same time a narrow majority subscribes to the Hans
view of the meaning of the Amendment, that it is a constitutional bar to
federal jurisdiction, across the board, without reference to its
specific language.
\54\See infra, text accompanying n.76.
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In the 1980s four Justices, led by Justice Brennan, argued that
Hans was incorrectly decided, that the Amendment was intended only to
deny jurisdiction against the States in diversity cases, and that Hans
and its progeny should be overruled.\55\ But the remain
[[Page 1531]]
ing five Justices adhered to Hans and in fact stiffened it with a rule
of construction quite severe in its effect.\56\
\55\E.g., Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 247
(1985) (dissenting); Welch v. Texas Dep't of Highways & Pub. Transp.,
483 U.S. 468, 496 (1987) (dissenting); Dellmuth v. Muth, 491 U.S. 223,
233 (1989) (dissenting); Port Authority Trans-Hudson Corp. v. Feeney,
495 U.S. 299, 309 (1990) (concurring). Joining Justice Brennan were
Justices Marshall, Blackmun, and Stevens. See also Pennsylvania v. Union
Gas Co., 491 U.S. 1, 23 (1989) (Justice Stevens concurring).
\56\E.g., Pennhurst State School & Hosp. v. Halderman, 465 U.S.
89, 97-103 (1984) (opinion of the Court by Justice Powell); Atascadero
State Hosp. v. Scanlon, 473 U.S. 234, 237-40, 243-44 n. 3 (1985)
(opinion of the Court by Justice Powell); Welch v. Texas Dep't of
Highways & Pub. Transp., 483 U.S. 468, 472-74, 478-95 (1987) (plurality
opinion of Justice Powell); Pennsylvania v. Union Gas Co., 491 U.S. 1,
29 (1989) (Justice Scalia concurring in part and dissenting in part);
Dellmuth v. Muth, 491 U.S. 223, 227-32 (1989) (opinion of the Court by
Justice Kennedy); Hoffman v. Connecticut Dep't of Income Maintenance,
492 U.S. 96, 101 (1989) (plurality opinion of Justice White); id. at
2824 (concurring opinions of Justices O'Connor and Scalia); Port
Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 305 (1990)
(opinion of the Court by Justice O'Connor).
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Suits Against States
Aside from suits against States by the United States and by
other States, there are permissible suits by individuals against States
upon federal constitutional and statutory grounds and indeed upon
grounds expressly covered by the Eleventh Amendment in somewhat fewer
circumstances.
Consent to Suit and Waiver.--The immunity of a State from suit
is a privilege which it may waive at its pleasure. It may do so by a law
specifically consenting to suit in the federal courts.\57\ But the
conclusion that there has been consent or a waiver is not lightly
inferred; the Court strictly construes statutes alleged to consent to
suit. Thus, a State may waive its immunity in its own courts without
consenting to suit in federal court,\58\ and a general authorization
``to sue and be sued'' is ordinarily insufficient to constitute
consent.\59\ ``The Court will give effect to a State's waiver of
Eleventh Amendment immunity `only where stated by the most express
language or by such overwhelming implication from the text as [will]
leave no room for any other reasonable construction.' . . . A State does
not waive its Eleventh Amendment immunity by consenting to suit only in
its own courts . . . and `[t]hus, in order for a state statute or
constitutional provision to constitute a waiver of Eleventh Amendment
immunity, it must specify the State's inten
[[Page 1532]]
tion to subject itself to suit in federal court.'''\60\ In this case, an
expansive consent ``to suits, actions, or proceedings of any form or
nature at law, in equity or otherwise . . .'' was deemed too ``ambiguous
and general'' to waive immunity in federal court, since it might be
interpreted to ``reflect only a State's consent to suit in its own
courts. But when combined with language specifying that consent was
conditioned on venue being laid ``within a county or judicial district,
established by one of said States or by the United States, and situated
wholly or partially within the Port of New York District,'' waiver was
effective.\61\ While the Court in a few cases has found a waiver by
implication, the current vitality of these cases is questionable. Thus,
in Parden v. Terminal Railway,\62\ the Court ruled that employees of a
state-owned railroad could sue the State for damages under the Federal
Employers' Liability Act. One of the two primary grounds for finding
lack of immunity was that by taking control of a railroad which was
subject to the FELA, that had been enacted some 20 years previously, the
State had effectively accepted the imposition of the Act and consented
to suit.\63\ Distinguishing Parden as involving a proprietary activity,
the Court subsequently refused to find any implied consent to suit by
States participating in federal spending programs; participation was
insufficient, and only when waiver has been ``stated by the most express
language or by such overwhelming implications from the text as [will]
leave no room for any other reasonable construction,'' will it be
found.\64\ This aspect of Parden has now been overruled, a plurality of
the Court emphasizing that congressional abrogation of immunity must be
express and unmistakable.\65\
\57\Gunter v. Atlantic Coast Line R.R., 200 U.S. 273, 284
(1906).
\58\Smith v. Reeves, 178 U.S. 436 (1900); Murray v. Wilson
Distilling Co., 213 U.S. 151, 172 (1909); Graves v. Texas Co., 298 U.S.
393, 403-04 (1936); Great Northern Life Ins. Co. v. Read, 322 U.S. 47
(1944).
\59\Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 54
(1944); Ford Motor Co. v. Department of Treasury, 323 U.S. 459 (1945);
Kennecott Copper Corp. v. State Tax Comm'n, 327 U.S. 573 (1947); Petty
v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275 (1959); Florida Dep't
of Health v. Florida Nursing Home Ass'n, 450 U.S. 147 (1981). Compare
Patsy v. Florida Bd. of Regents, 457 U.S. 496, 519 n.* (1982) (Justice
White concurring), with id. at 522 and n.5 (Justice Powell dissenting).
\60\Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299,
305-06 (1990) (internal citations omitted; emphasis in original).
\61\Id. at 306-07. See, on the other hand, Atascadero State
Hosp. v. Scanlon, 473 U.S. 234, 241 (1985).
\62\377 U.S. 184 (1964). The alternative but interwoven ground
had to do with Congress' power to withdraw immunity. See also Petty v.
Tennessee-Missouri Bridge Comm'n, 359 U.S. 275 (1959).
\63\Edelman v. Jordan, 415 U.S. 651, 671-72 (1974). For the same
distinction in the Tenth Amendment context, see National League of
Cities v. Usery, 426 U.S. 833, 854 n.18 (1976).
\64\Edelman v. Jordan, 415 U.S. 651 (1974) (quoting id. at 673,
Murray v. Wilson Distilling Co., 213 U.S. 151, 171 (1909)); Florida
Dep't of Health v. Florida Nursing Home Ass'n, 450 U.S. 147 (1981). Of
the four Edelman dissenters, Justices Marshall and Blackmun found waiver
through knowing participation, id. at 415 U.S., 688. In Florida Dep't,
Justice Stevens noted he would have agreed with them had he been on the
Court at the time but that he would now adhere to Edelman. Id. at 151.
\65\Welch v. Texas Dep't of Highways and Pub. Transp., 483 U.S.
468 (1987). Justice Powell's plurality opinion was joined by Chief
Justice Rehnquist and by Justices White and O'Connor. Justice Scalia,
concurring, thought Parden should be overruled because it must be
assumed that Congress enacted the FELA and other statutes with the
understanding that Hans v. Louisiana shielded states from immunity. Id.
at 495.
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[[Page 1533]]
Similarly, the State may waive its immunity by initiating or
participating in litigation. In Clark v. Barnard,\66\ the State had
filed a claim for disputed money deposited in a federal court, and the
Court held that the State could not thereafter complain when the court
awarded the money to another claimant. However, the Court is loath to
find a waiver simply because of the decision of an official or an
attorney representing the State, because of the question of the ability
of the individual to act under state law to make a valid waiver, with
the result that the State may at any point in litigation raise a claim
of immunity.\67\
\66\108 U.S. 436 (1883).
\67\Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 466-
467 (1945); Edelman v. Jordan, 415 U.S. 651, 677-678 (1974).
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With respect to governmental entities that derive their
authority from the State, but are not the State, the Court closely
examines state law to determine what the nature of the entity is,
whether it is an arm of the State or whether it is to be treated like a
municipal corporation or other political subdivision. An arm of the
State has immunity: ``agencies exercising state power have been
permitted to invoke the Amendment in order to protect the state treasury
from liability that would have had essentially the same practical
consequences as a judgment against the State itself.''\68\ Municipal
corporations, though they partake under state law of the State's
immunity, do not have immunity in federal court and the States may not
confer it.\69\ Entities created through interstate compacts (subject to
congressional approval) generally also are subject to suit.\70\
\68\Lake County Estates v. Tahoe Regional Planning Agency, 440
U.S. 391, 400-01 (1979), citing Edelman v. Jordan, 415 U.S. 651 (1974);
and Ford Motor Co. v. Department of Treasury, 323 U.S. 459 (1945).
\69\Lincoln County v. Luning, 133 U.S. 529 (1890); Chicot County
v. Sherwood, 148 U.S. 529 (1893); Workman v. City of New York, 179 U.S.
552 (1900); Moor v. County of Alameda, 411 U.S. 693 (1973); Mt. Healthy
City Bd. of Educ. v. Doyle, 429 U.S. 274 (1977). Notice that in National
League of Cities v. Usery, 426 U.S. 833 (1976), the Court extended the
state immunity from regulation in that case to political subdivisions as
well.
\70\Lake County Estates v. Tahoe Regional Planning Agency, 440
U.S. 391 (1979); Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275
(1959).
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Congressional Withdrawal of Immunity.--The Constitution
delegates to Congress power to legislate to affect the States in some
permissible ways. At least in some instances when Congress does so, it
may subject the States themselves to suit at the initiation of
individuals to implement the legislation. The clearest example arises
from the Reconstruction Amendments, which are direct restrictions upon
state powers and which expressly provide for
[[Page 1534]]
congressional implementing legislation.\71\ Thus, ``the Eleventh
Amendment and the principle of state sovereignty which it embodies . . .
are necessarily limited, by the enforcement provisions of Sec. 5 of the
Fourteenth Amendment.''\72\ Dwelling on the fact that the Fourteenth
Amendment was ratified after the Eleventh became part of the
Constitution, the Court implied that earlier grants of legislative power
to Congress in the body of the Constitution might not contain a similar
power to authorize suits against the States.\73\ The power to enforce
the Civil War Amendments is substantive, however, not being limited to
remedying judicially cognizable violations of the amendments, but
extending as well to measures that in Congress' judgment will promote
compliance.\74\ The principal judicial brake on this power to abrogate
state immunity has been application of a clear statement rule requiring
that congressional intent to subject States to suit must be clearly
expressed.\75\
\71\Fitzpatrick v. Bitzer, 427 U.S. 445 (1976); Hutto v. Finney,
437 U.S. 678 (1978); City of Rome v. United States, 446 U.S. 156 (1980).
More recent cases affirming Congress' Sec. 5 powers include: Pennhurst
State School & Hosp. v. Halderman, 465 U.S. 89, 99 (1984); Atascadero
State Hosp. v. Scanlon, 473 U.S. 234, 238 (1985); Dellmuth v. Muth, 491
U.S. 223, 227 (1989).
\72\Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976).
\73\Id. at 456 (under Fourteenth Amendment, Congress may
``provide for private suits against States or state officials which are
constitutionally impermissible in other contexts.'')
\74\In Maher v. Gagne, 448 U.S. 122 (1980), the Court found that
Congress could validly authorize imposition of attorneys' fees on the
State following settlement of a suit based on both constitutional and
statutory grounds, even though settlement had prevented determination
that there had been a constitutional violation. Maine v. Thiboutot, 448
U.S. 1 (1980), held that Sec. 1983 suits could be premised on federal
statutory as well as constitutional grounds. Other cases in which
attorneys' fees were awarded against States are Hutto v. Finney, 437
U.S. 678 (1978); and New York Gaslight Club v. Carey, 447 U.S. 54
(1980).
\75\Even prior to the recent tightening of the rule to require
clear expression in the statutory language itself (see n.79 and
accompanying text, infra), application of the rule curbed congressional
enforcement. Fitzpatrick v. Bitzer, 427 U.S. 445 451-53 (1976); Hutto v.
Finney, 437 U.S. 678, 693-98 (1978). Because of its rule of clear
statement, the Court in Quern v. Jordan, 440 U.S. 332 (1979), held that
in enacting 42 U.S.C. Sec. 1983, Congress had not intended to include
States within the term ``person'' for the purpose of subjecting them to
suit. The question arose after Monell v. New York City Dep't of Social
Services, 436 U.S. 658 (1978), reinterpreted ``person'' to include
municipal corporations. Cf. Alabama v. Pugh, 438 U.S. 781 (1978). The
Court has reserved the question whether the Fourteenth Amendment itself,
without congressional action, modifies the Eleventh Amendment to permit
suits against States, Milliken v. Bradley, 433 U.S. 267, 290 n.23
(1977), but the result in Milliken, holding that the Governor could be
enjoined to pay half the cost of providing compensatory education for
certain schools, which would come from the state treasury, and in
Scheuer v. Rhodes, 416 U.S. 232 (1974), permitting imposition of damages
upon the governor, which would come from the state treasury, is
suggestive. But see Mauclet v. Nyquist, 406 F. Supp. 1233 (W.D.N.Y.
1976) (refusing money damages under the Fourteenth Amendment), appeal
dismissed sub nom. Rabinovitch v. Nyquist, 433 U.S. 901 (1977). The
Court declined in Ex parte Young, 209 U.S. 123, 150 (1908), to view the
Eleventh Amendment as modified by the Fourteenth.
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[[Page 1535]]
In the 1989 case of Pennsylvania v. Union Gas Co.,\76\ the
Court--temporarily at least--ended years of uncertainty by holding
expressly that Congress acting pursuant to its Article I powers may
abrogate the Eleventh Amendment immunity of the states, so long as it
does so with sufficient clarity. Twenty five years earlier the Court had
stated that same principle,\77\ but only as an alternative holding, and
a later case had set forth a more restrictive rule.\78\ The premises of
Union Gas were that by consenting to ratification of the Constitution,
with its Commerce Clause and other clauses empowering Congress and
limiting the states, the states had implicitly authorized Congress to
divest them of immunity, that the Eleventh Amendment was a restraint
upon the courts and not similarly upon Congress, and that the exercises
of Congress' powers under the Commerce Clause and other clauses would be
incomplete without the ability to authorize damage actions against the
states to enforce congressional enactments. The dissenters denied each
of these strands of the argument, and, while recogninizing the
Fourteenth Amendment abrogation power, would have held that none existed
under Article I. The narrowness of the majority, the conflicted views of
one of the Justices in the majority, and now changed membership of the
Court make uncertain the continuing vitality of the decision.
\76\491 U.S. 1 (1989). The plurality opinion of the Court was by
Justice Brennan and was joined by the three other Justices who believed
Hans was incorrectly decided. See id. at 23 (Justice Stevens
concurring). The fifth vote was provided by Justice White, id. at 45,
55-56 (Justice White concurring), although he believed Hans was
correctly decided and ought to be maintained and although he did not
believe Congress had acted with sufficient clarity in the statutes
before the Court to abrogate immunity. Justice Scalia thought the
statutes were express enough but that Congress simply lacked the power.
Id. at 29. Chief Justice Rehnquist and Justices O'Connor and Kennedy
joined relevant portions of both opinions finding lack of power and lack
of clarity.
\77\Parden v. Terminal Railway, 377 U.S. 184, 190-92 (1964). See
also Employees of the Dep't of Public Health and Welfare v. Department
of Public Health and Welfare, 411 U.S. 279, 283, 284, 285-86 (1973).
\78\Edelman v. Jordan, 415 U.S. 651, 672 (1974).
---------------------------------------------------------------------------
At the same time as these developments, however, a different
majority secured a victory in circumscribing the manner in which
Congress could express its decision to abrogate state immunity.
Henceforth, and even with respect to statutes that were enacted prior to
promulgation of the judicial rule of construction, ``Congress may
abrogate the States' constitutionally secured immunity from suit in
federal court only by making its intention unmistakably clear in the
language of the statute'' itself.\79\ No legislative history
[[Page 1536]]
will suffice at all.\80\ Indeed, a plurality is of the apparent view
that only if Congress refers specifically to state sovereign immunity
and the Eleventh Amendment will its language be unmistakably clear.\81\
Thus, general language subjecting to suit in federal court ``any
recipient of Federal assistance'' under the Rehabilitation Act was
deemed insufficient to satisfy this test, not because of any question
about whether States are ``recipients'' within the meaning of the
provision but because ``given their constitutional role, the States are
not like any other class of recipients of federal aid.''\82\ The Court
also construes adversely language Congress chose to reach the issue of
state immunity while refusing to look at the legislative history which
elaborates that language.\83\ The result is that Congress has begun to
utilize the ``magic words'' the Court appears to insist on.\84\
\79\Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985)
(emphasis supplied).
\80\See, particularly, Dellmuth v. Muth, 491 U.S. 223, 230
(1989), and Hoffman v. Connecticut Dep't of Income Maintenance, 492 U.S.
96, 103-04 (1989).
\81\Justice Scalia does not hold to this view. Dellmuth v. Muth,
491 U.S. 223, 233 (1989) (concurring). And see his statutory analysis in
Pennsylvania v. Union Gas Co., 491 U.S. 1, 29 (1989) (concurring in part
and dissenting in part). Justice White, for the plurality, denied this
rigidity, id. at 56 n.7 (concurring); Justice Kennedy for the Court in
Dellmuth, supra, at 231, expressly noted that the statute before the
Court did not demonstrate abrogation with unmistakably clarity because,
inter alia, it ``makes no reference whatsoever to either the Eleventh
Amendment or the States' sovereign immunity.''
\82\Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 246 (1985).
And see Dellmuth v. Muth, 491 U.S. 223 (1989).
\83\Hoffman v. Connecticut Dep't of Income Maintenance, 492 U.S.
96, 103-04 (1989).
\84\Thus, following Atascadero, in 1986 Congress provided that
States were not to be immune under the Eleventh Amendment from suits
under several laws barring discrimination by recipients of federal
financial assistance. Pub. L. No. 99-506, Sec. 1003, 100 Stat. 1845
(1986), 42 U.S.C. Sec. 2000d-7. Following Dellmuth, which involved a
fact situation occurring prior to the 1986 amendments, Congress
overruled it anyway. Pub. L. No. 101-476, Sec. 103, 104 Stat. 1106
(1990), 20 U.S.C. Sec. 1403. See also the Copyright Remedy Clarification
Act, Pub. L. No. 101-553, Sec. 2, 104 Stat. 2749 (1990), 17 U.S.C.
Sec. 511 (making States and state officials liable in damages for
copyright violations).
---------------------------------------------------------------------------
It should be noted that, even if the Court reverses itself and
holds that Congress lacks power to abrogate state immunity in federal
courts under its commerce and other Article I powers, Congress is not
barred by the Eleventh Amendment, nor apparently by any other
constitutional provision, from providing authority for suits in state
courts to implement federal statutory rights, thus doing away for those
purposes with common law sovereign immunity of the states.\85\
\85\The point was noted and reserved in Employees of the Dep't
of Public Health and Welfare v. Department of Public Health and Welfare,
411 U.S. 279, 287 (1973), while Justice Marshall argued that this was
plainly the case. Id. at 298 (concurring). Suits under Sec. 1983, for
example, may be brought in state courts, Maine v. Thiboutot, 448 U.S. 1
(1980), and state immunities are inapplicable. Id. at 9 n.7; Maher v.
Gagne, 448 U.S. 122, 130 n.12 (1980). Inasmuch as state courts are
ordinarily obligated to enforce federal law, cf. Testa v. Katt, 330 U.S.
386 (1960), state courts are presumably required to hear Sec. 1983 and
other claims, but the Court has expressly reserved the issue. Martinez
v. California, 444 U.S. 277, 283 n.7 (1980).
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[[Page 1537]]
Although acknowledging that the Eleventh Amendment was not an
issue because the Sec. 1983 suit had been pursued in state court,
nonetheless the Court applied its strict rule of construction, requiring
``unmistakable clarity'' by Congress in order to subject States to suit,
in holding that States and state officials sued in their official
capacity could not be made defendants in Sec. 1983 actions in state
courts.\86\ While the Court is willing to recognize exceptions to the
clear statement rule when the issue involves subjection of states to
suit in state courts, the Court will normally opt for ``symmetry'' that
treats the states' liability or immunity the same in both state and
federal courts.\87\
\86\Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989).
\87\Hilton v. South Carolina Pub. Rys. Comm'n, 112 S. Ct. 560,
564-66 (1991) (interest in ``symmetry'' is outweighed by stare decisis,
the FELA action being controlled by Parden v. Terminal Ry.
---------------------------------------------------------------------------
Suits Against State Officials
Mitigation of the wrongs possible when the State is immune from
suit has been achieved under the doctrine that sovereign immunity,
either of the States or of the Federal Government, does not ordinarily
prevent a suit against an official to restrain him from commission of a
wrong, even though the government is thereby restrained.\88\ The
doctrine is built upon a double fiction: that for purposes of the
sovereign's immunity, a suit against the official is not a suit against
the government, but for the purpose of finding state action to which the
Constitution applies, the official's conduct is that of the State.\89\
The doctrine preceded but is most noteworthily associated with the
decision in Ex parte Young,\90\ a case truly deserving the overworked
adjective, seminal.
\88\See, e.g., Larson v. Domestic and Foreign Corp., 337 U.S.
682 (1949), where the majority and dissenting opinions utilize both
federal and Eleventh Amendment cases in a suit against a federal
official. See also Tindal v. Wesley, 167 U.S. 204, 213 (1897), applying
to the States the federal rule of United States v. Lee, 106 U.S. 196
(1882).
\89\C. Wright, The Law of Federal Courts Sec. 48 (4th ed. 1983).
\90\209 U.S. 123 (1908).
---------------------------------------------------------------------------
Young arose when a state legislature passed a law reducing
railroad rates and providing severe penalties for any railroad that
failed to comply with the law. Plaintiff railroad stockholders brought
an action to enjoin Young, the state attorney general, from enforcing
the law, alleging that it was unconstitutional and that they would
suffer irreparable harm if he were not prevented from acting. An
injunction was granted forbidding Young from acting on the law, an
injunction he violated by bringing an action in state
[[Page 1538]]
court against noncomplying railroads; for this action he was adjudged in
contempt. If the Supreme Court had held that the injunction was not
impermissible, because the suit was one against the State, there would
have been no practicable way for the railroads to attack the statute
without placing themselves in great danger. They could have disobeyed it
and alleged its unconstitutionality in the enforcement proceedings, but
if they were wrong about the statute's validity the penalties would have
been devastating.\91\ In the modern context, the effectuation of federal
constitutional rights against state action often depends upon the
imposition of affirmative obligations through injunctions, and this
relief would be impossible if such an injunction were in effect a suit
against a State.
\91\In fact, the statute was eventually held to be
constitutional. Minnesota Rate Cases (Simpson v. Shepard), 230 U.S. 352
(1913).
---------------------------------------------------------------------------
In deciding Young, the Court was confronted with inconsistent
lines of cases, including numerous precedents for permitting suits
against state officers. Chief Justice Marshall had begun the process in
Osborn by holding that suit was barred only when the State was formally
named a party,\92\ although he was presently required to modify that
decision and preclude suit when an official, the governor of a State,
was sued in his official capacity.\93\ Relying on Osborn and reading
Madrazo narrowly, the Court, seeming to treat the barrier to suit as
common-law sovereign immunity, held in a series of cases that an
official of a State could be sued to prevent him from executing a state
law in conflict with the Constitution or a law of the United States, and
the fact that the officer may be acting on behalf of the State or in
response to a statutory obligation of the State does not make the suit
one against the State.\94\ Soon, however, the Court began developing a
more expansive concept of the Eleventh Amendment and sovereign immunity,
beginning with the first case in which the sovereign immunity of the
United States was claimed and rejected\95\ and the Hans v. Louisiana
decision reading broadly the effect of the adoption of the Eleventh
Amendment.\96\
\92\Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738
(1824).
\93\Governor of Georgia v. Madrazo, 26 U.S. (1 Pet.) 110 (1828).
\94\Davis v. Gray, 83 U.S. (16 Wall.) 203 (1872); Board of
Liquidation v. McComb, 92 U.S. 531 (1875); Allen v. Baltimore & Ohio
R.R., 114 U.S. 311 (1885); Rolston v. Missouri Fund Comm'rs, 120 U.S.
390 (1887); Pennoyer v. McConnaughy, 140 U.S. 1 (1891); Reagan v.
Farmers' Loan & Trust Co., 154 U.S. 362 (1894); Smyth v. Ames, 169 U.S.
466 (1898); Scranton v. Wheeler, 179 U.S. 141 (1900).
\95\United States v. Lee, 106 U.S. 196 (1882). See supra,
pp.748-51. The Court sustained the suit against the federal officers by
only a 5-to-4 vote, the dissent presenting the arguments that were soon
to inform Eleventh Amendment cases.
\96\134 U.S. 1 (1890).
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[[Page 1539]]
The two leading cases, as were many cases of this period, were
suits attempting to prevent Southern States from defaulting on
bonds.\97\ In Louisiana v. Jumel,\98\ a Louisiana citizen sought to
compel the state treasurer to apply a sinking fund that had been created
under the earlier constitution for the payment of the bonds after a
subsequent constitution had abolished this provision for retiring the
bonds. The proceeding was held to be a suit against the State.\99\ Then,
In re Ayers\100\ purported to supply a rationale for the cases
permitting the issuance of mandamus or injuctive relief against state
officers in a way that would have severely curtailed federal judicial
power. Suit against a state officer was not barred when his action,
aside from any official authority claimed as its justification, was a
wrong simply as an individual act, such as a trespass, but if the act of
the officer did not constitute an individual wrong and was something
that only a State, through its officers, could do, the suit was in
actuality a suit against the State and was barred.\101\ That is, the
unconstitutional nature of the state statute under which the officer
acted stripped him of the State's shield against suit, but it did not
itself constitute a private cause of action. For that, one must be able
to point to an independent violation of a common law right.\102\
\97\See Gibbons, The Eleventh Amendment and State Sovereign
Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889, 1968-2003 (1983);
Orth, The Interpretation of the Eleventh Amendment, 1798-1908: A Case
Study of Judicial Power, 1983 U. Ill. L. Rev. 423.
\98\107 U.S. 711 (1882).
\99\``The relief asked will require the officers against whom
the process is issued to act contrary to the positive orders of the
supreme political power of the State, whose creatures they are, and to
which they are ultimately responsible in law for what they do. They must
use the public money in the treasury and under their official control in
one way, when the supreme power has directed them to use it in another,
and they must raise more money by taxation when the same power has
declared that it shall not be done.'' Id. at 721. See also Christian v.
Atlantic & N.C. R.R., 133 U.S. 233 (1890).
\100\123 U.S. 443 (1887).
\101\Id. at 500-01, 502.
\102\Ayers was a suit by plaintiffs seeking to enjoin state
officials from bringing suit under an allegedly unconstitutional statute
purporting to overturn a contract between the State and the bondholders
to receive the bond coupons for tax payments. The Court asserted that
the State's contracts impliedly contained the State's immunity from
suit, so that express withdrawal of a supposed consent to be sued was
not a violation of the contract; but, in any event, inasmuch as any
violation of the assumed contract was an act of the State, to which the
officials were not parties, their actions as individuals in bringing
suit did not breach the contract. Id. at 503, 505-06. The rationale had
been asserted by a four-Justice concurrence in Antoni v. Greenhow, 107
U.S. 769, 783 (1882). See also Cunningham v. Macon & Brunswick R.R., 109
U.S. 446 (1883); Hagood v. Southern, 117 U.S. 52 (1886); North Carolina
v. Temple, 134 U.S. 22 (1890); In re Tyler, 149 U.S. 164 (1893); Baltzer
v. North Carolina, 161 U.S. 240 (1896); Fitts v. McGhee, 172 U.S. 516
(1899); Smith v. Reeves, 178 U.S. 436 (1900).
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[[Page 1540]]
Although Ayers was in all relevant points on all fours with
Young,\103\ the Court held that the injunction had properly issued
against the state attorney general, even though the State was in effect
restrained as well. ``The act to be enforced is alleged to be
unconstitutional, and, if it be so, the use of the name of the state to
enforce an unconstitutional act to the injury of the complainants is a
proceeding without the authority of, and one which does not affect, the
state in its sovereign or governmental capacity. It is simply an illegal
act upon the part of a state official, in attempting by the use of the
name of the state to enforce a legislative enactment which is void,
because unconstitutional. If the act which the state Attorney General
seeks to enforce be a violation of the federal Constitution, the officer
in proceeding under such enactment comes into conflict with the superior
authority of that Constitution, and he is in that case stripped of his
official or representative character and is subject in his person to the
consequences of his individual conduct.''\104\ Justice Harlan was the
only dissenter, arguing that in law and fact the suit was one only
against the State and that the suit against the individual was a mere
``fiction.''\105\
\103\Ayers ``would seem to be decisive of the Young
litigation.'' C. Wright, The Law of Federal Courts Sec. 48 at 288 (4th
ed. 1983). The Young Court purported to distinguish and to preserve
Ayers but on grounds that either were irrelevant to Ayers or that had
been rejected in the earlier case. Ex parte Young, 209 U.S. 123, 151,
167 (1908). Similarly, in a later case, the Court continued to
distinguish Ayers but on grounds that did not in fact distinguish it
from the case before the Court, in which it permitted a suit against a
state revenue commissioner to enjoin him from collecting allegedly
unconstitutional taxes. Georgia R.R. & Banking Co. v. Redwine, 342 U.S.
299 (1952).
\104\Ex parte Young, 209 U.S. 123, 159-60 (1908). The opinion
did not address the issue of how an officer ``stripped of his official
. . . character'' could violate the Constitution, inasmuch as the
Constitution restricts only ``state action,'' but the double fiction has
been expounded numerous times since. Thus, for example, it is well
settled that an action unauthorized by state law is state action for
purposes of the Fourteenth Amendment. Home Tel. & Tel. Co. v. City of
Los Angeles, 227 U.S. 278 (1913). The contrary premise of Barney v. City
of New York, 193 U.S. 430 (1904), though eviserated by Home Tel. & Tel.
was not expressly disavowed until United States v. Raines, 362 U.S. 17,
25-26 (1960).
\105\Ex parte Young, 209 U.S. 123, 173-74 (1908).
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The ``fiction'' remains a mainstay of our jurisprudence.\106\ It
accounts for a great deal of the litigation brought by individuals to
challenge the carrying out of state policies by officers. Thus, suits
against state officers alleging that they are acting pursuant to an
unconstitutional statute are the standard device by which to test the
validity of state legislation in federal courts prior to enforce
[[Page 1541]]
ment and thus interpretation in the state courts.\107\ Similarly, suits
to restrain state officials from taking certain actions in contravention
of federal statutes\108\ or to compel the undertaking of affirmative
obligations imposed by the Constitution or federal laws\109\ are common.
For years, moreover, the accepted rule was that suits prosecuted against
state officers in federal courts upon grounds that they are acting in
excess of state statutory authority\110\ or that they are not doing
something required by state law\111\ are not precluded by the Eleventh
Amendment or its emanations of sovereign immunity, provided only that
there are grounds to obtain federal jurisdiction.\112\ However, in
Pennhurst State School & Hosp. v. Halderman,\113\ the Court, five-to-
four, held
[[Page 1542]]
that Young did not permit suits in federal courts against state officers
alleging violations of state law. In the Court's view, Young's rationale
was the necessity to promote the supremacy of federal law, a basis that
disappears if the violation alleged is of state law.
\106\E.g., Ray v. Atlantic Richfield Co., 435 U.S. 151, 156 n.6
(1978) (rejecting request of state officials being sued to restrain
enforcement of state statute as preempted by federal law that Young be
overruled); Florida Dep't of State v. Treasure Salvors, 458 U.S. 670,
685 (1982).
\107\See, e.g., Home Tel.&Tel. Co. v. City of Los Angeles, 227
U.S. 278 (1913); Truax v. Raich, 239 U.S. 33 (1915); Cavanaugh v.
Looney, 248 U.S. 453 (1919); Terrace v. Thompson, 263 U.S. 197 (1923);
Hygrade Provision Co. v. Sherman, 266 U.S. 497 (1925); Massachusetts
State Grange v. Benton, 272 U.S. 525 (1926); Hawks v. Hamill, 288 U.S.
52 (1933). See also Graham v. Richardson, 403 U.S. 365 (1971) (enjoining
state welfare officials from denying welfare benefits to otherwise
qualified recipients because they were aliens); Goldberg v. Kelly, 397
U.S. 254 (1970) (enjoining city welfare officials from following state
procedures for termination of benefits); Milliken v. Bradley, 433 U.S.
267 (1977) (imposing half the costs of mandated compensatory education
programs upon State through order directed to governor and other
officials). On injunctions against governors, see Continental Baking Co.
v. Woodring, 286 U.S. 352 (1932); Sterling v. Constantin, 287 U.S. 378
(1932). Applicable to suits under this doctrine are principles of
judicial restraint, constitutional, statutory, and prudential, discussed
under Article III.
\108\E.g., Edelman v. Jordan, 415 U.S. 651, 664-68 (1974); Ray
v. Atlantic Richfield Co., 435 U.S. 151 (1978).
\109\E.g., Milliken v. Bradley, 433 U.S. 267 (1977); Edelman v.
Jordan, 415 U.S. 651, 664-68 (1974); Quern v. Jordan, 440 U.S. 332, 346-
49 (1979).
\110\E.g., Pennoyer v. McConnaughy, 140 U.S. 1 (1891); Scully v.
Bird, 209 U.S. 481 (1908); Atchison, T. & S. F. Ry. v. O'Connor, 223
U.S. 280 (1912); Greene v. Louisville & Interurban R.R. Co., 244 U.S.
499 (1977); Louisville & Nashville R.R. Co. v. Greene, 244 U.S. 522
(1917). Property held by state officials on behalf of the State under
claimed state authority may be recovered in suits against the officials,
although the court may not conclusively resolve the State's claims
against it in such a suit. South Carolina v. Wesley, 155 U.S. 542
(1895); Tindal v. Wesley, 167 U.S. 204 (1897); Hopkins v. Clemson
College, 221 U.S. 636 (1911). See also Florida Dep't of State v.
Treasure Salvors, 458 U.S. 670 (1982), in which the eight Justices
agreeing the Eleventh Amendment applied divided 4-to-4 over the proper
interpretation.
\111\E.g., Rolston v. Missouri Fund Comm'rs, 120 U.S. 390
(1887); Atchison, T. & S. F. Ry. v. O'Connor, 223 U.S. 280 (1912);
Johnson v. Lankford, 245 U.S. 541, 545 (1918); Lankford v. Platte Iron
Works Co., 235 U.S. 461, 471 (1915); Davis v. Wallace, 257 U.S. 478,
482-85 (1922); Glenn v. Field Packing Co., 290 U.S. 177, 178 (1933); Lee
v. Bickell, 292 U.S. 415, 425 (1934).
\112\Typically, the plaintiff would be in federal court under
diversity jurisdiction, cf. Martin v. Lankford, 245 U.S. 547, 551
(1918), perhaps under admiralty jurisdiction, Florida Dep't of State v.
Treasure Salvors, 458 U.S. 670 (1982), or under federal question
jurisdiction. In the last instance, federal courts are obligated first
to consider whether the issues presented may be decided on state law
grounds before reaching federal constitutional grounds, and thus relief
may be afforded on state law grounds solely. Cf. Siler v. Louisville &
Nashville R.R., 213 U.S. 175, 193 (1909); Hagans v. Lavine, 415 U.S.
528, 546-47 & n.12 (1974).
\113\465 U.S. 89 (1984).
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The Court still adheres to the doctrine, first pronounced in
Madrazo,\114\ that some suits against officers are ``really'' against
the State\115\ and are barred by the State's immunity, such as when the
suit involves state property or asks for relief which clearly calls for
the exercise of official authority, such as paying money out of the
treasury to remedy past harms. For example, a suit to prevent tax
officials from collecting death taxes arising from the competing claims
of two States as being the last domicile of the decedent floundered upon
the conclusion that there could be no credible claim of violation of the
Constitution or federal law; state law imposed the obligation upon the
officials and ``in reality'' the action was against the State.\116\
Suits against state officials to recover taxes have been made
increasingly difficult to maintain. Although the Court long ago held
that the sovereign immunity of the State prevented a suit to recover
money in the state treasury,\117\ it also held that a suit would lie
against a revenue officer to recover tax moneys illegally collected and
still in his possession.\118\ Beginning, however, with Great Northern
Life Ins. Co. v. Read,\119\ the Court has held that this kind of suit
cannot be maintained unless the State expressly consents to suits in the
federal courts. In this case, the state statute provided for the payment
of taxes under protest and for suits afterward against state tax
collection officials for the recovery of taxes illegally collected,
which revenues were required to be kept segregated.\120\
\114\Governor of Georgia v. Madrazo, 26 U.S. (1 Pet.) 110
(1828).
\115\E.g., Ford Motor Co. v. Department of the Treasury, 323
U.S. 459, 464 (1945).
\116\Worcester County Co. v. Riley, 302 U.S. 292 (1937). See
also Old Colony Trust Co. v. Seattle, 271 U.S. 426 (1926). Worcester
County remains viable. Cory v. White, 457 U.S. 85 (1982). The actions
were under the Federal Interpleader Act, 49 Stat. 1096 (1936), 28 U.S.C.
Sec. 1335, under which other actions against officials have been
allowed. E.g., Treines v. Sunshine Mining Co., 308 U.S. 66 (1939)
(joinder of state court judge and receiver in interpleader proceeding in
which State had no interest and neither judge nor receiver was enjoined
by final decree). See also Missouri v. Fiske, 290 U.S. 18 (1933).
\117\Smith v. Reeves, 178 U.S. 436 (1900).
\118\Atchison, T. & S. F. Ry. v. O'Connor, 223 U.S. 280 (1912).
\119\322 U.S. 47 (1944).
\120\See also Ford Motor Co. v. Department of Treasury, 323 U.S.
459 (1945); Kennecott Copper Corp. v. Tax Comm'n, 327 U.S. 573 (1946).
States may confine to their own courts suits to recover taxes. Smith v.
Reeves, 178 U.S. 436 (1900); Murray v. Wilson Distilling Co., 213 U.S.
151 (1909); Chandler v. Dix, 194 U.S. 590 (1904).
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[[Page 1543]]
In Edelman v. Jordan,\121\ the Court appeared to begin to lay
down new restrictive interpretations of what the Eleventh Amendment
proscribed. The Court announced that a suit ``seeking to impose a
liability which must be paid from public funds in the state treasury is
barred by the Eleventh Amendment.''\122\ What the Court actually held,
however, was that it was permissible for federal courts to require state
officials to comply in the future with claims payment provisions of the
welfare assistance sections of the Social Security Act, but that they
were not permitted to hear claims seeking, or issue orders directing,
payment of funds found to be wrongfully withheld.\123\ Conceding that
some of the characteristics of prospective and retroactive relief would
be the same in their effects upon the state treasury, the Court
nonetheless believed that retroactive payments were equivalent to the
imposition of liabilities which must be paid from public funds in the
treasury, and that this was barred by the Eleventh Amendment. The
spending of money from the state treasury by state officials shaping
their conduct in accordance with a prospective-only injunction is ``an
ancillary effect'' which ``is a permissible and often an inevitable
consequence'' of Ex parte Young, whereas ``payment of state funds . . .
as a form of compensation'' to those wrongfully denied the funds in the
past ``is in practical effect indistinguishable in many aspects from an
award of damages against the State.''\124\
\121\415 U.S. 651 (1974).
\122\Id. at 663.
\123\Id. at 667-68.
\124\Id. at 668. See also Quern v. Jordan, 440 U.S. 332 (1979)
(reaffirming Edelman, but holding that state officials could be ordered
to notify members of the class that had been denied retroactive relief
in that case that they might seek back benefits by invoking state
administrative procedures; the order did not direct the payment but left
it to state discretion to award retroactive relief). But cf. Green v.
Mansour, 474 U.S. 64 (1985). ``Notice relief'' permitted under Quern v.
Jordan is consistent with the Eleventh Amendment only insofar as it is
ancillary to valid prospective relief designed to prevent ongoing
violations of federal law. Thus, where Congress has changed the AFDC law
and the State is complying with the new law, an order to state officials
to notify claimants that past payments may have been inadequate
conflicts with the Eleventh Amendment.
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That Edelman in many instances will be a formal restriction
rather than an actual one is illustrated by Milliken v. Bradley,\125\ in
which state officers were ordered to spend money from the state treasury
in order to finance remedial educational programs to counteract the
effects of past school segregation; the decree, the Court said, ``fits
squarely within the prospective-compliance exception reaffirmed by
Edelman.''\126\ Although the payments were a result of past wrongs, of
past constitutional violations, the Court did
[[Page 1544]]
not view them as ``compensation,'' inasmuch as they were not to be paid
to victims of past discrimination but rather used to better conditions
either for them or their successors.\127\ The Court also applied Edelman
in Papasan v. Allain,\128\ holding that a claim against a state for
payments representing a continuing obligation to meet trust
responsibilities stemming from a 19th century grant of public lands for
benefit of education of the Chickasaw Indian Nation is barred by the
Eleventh Amendment as indistinguishable from an action for past loss of
trust corpus, but that an Equal Protection claim for present unequal
distribution of school land funds is the type of ongoing violation for
which the Eleventh Amendment does not bar redress.
\125\433 U.S. 267 (1977).
\126\Id. at 289.
\127\Id. at 290 n.22. See also Hutto v. Finney, 437 U.S. 678,
690-91 (1978) (affirming order to pay attorney's fees out of state
treasury as an ``ancillary'' order because of bad faith of State).
\128\478 U.S. 265 (1986).
---------------------------------------------------------------------------
Thus, as with the cases dealing with suits facially against the
States themselves, the Court's recent greater attention to state
immunity in the context of suits against state officials has resulted in
a mixed picture, of some new restrictions, of the lessening of others.
But a number of Justices has resorted to the Eleventh Amendment
increasingly, as one means of reducing federal-state judicial
conflict.\129\ One may, therefore, expect this to be a continuingly
contentious area.
\129\See, e.g., Florida Dep't of State v. Treasure Salvors, 458
U.S. 670, 702 (1982) (dissenting opinion); Patsy v. Florida Board of
Regents, 457 U.S. 496, 520 (1982) (dissenting opinion). And see
Employees of the Dep't of Public Health and Welfare v. Department of
Public Health and Welfare, 411 U.S. 279 (1973).
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Tort Actions Against State Officials.--In Tindal v. Wesley,\130\
the Court adopted the rule of United States v. Lee,\131\ a tort suit
against federal officials, to permit a tort action against state
officials to recover real property held by them and claimed by the State
and to obtain damages for the period of withholding. The immunity of a
State from suit has long been held not to extend to actions against
state officials for damages arising out of willful and negligent
disregard of state laws.\132\ The reach of the rule is evident in
Scheuer v. Rhodes,\133\ in which the Court held that plaintiffs were not
barred by the Eleventh Amendment or other immunity doctrines from suing
the governor and other officials of a State alleging that they deprived
plaintiffs of federal rights under color of state law and seeking
damages, when it was clear that plaintiffs were seeking to impose
individual and personal liability on the offi
[[Page 1545]]
cials. There was no ``executive immunity'' from suit, the Court held;
rather, the immunity of state officials is qualified and varies
according to the scope of discretion and responsibilities of the
particular office and the circumstances existing at the time the
challenged action was taken.\134\
\130\167 U.S. 204 (1897).
\131\106 U.S. 196 (1883).
\132\Johnson v. Lankford, 245 U.S. 541 (1918); Martin v.
Lankford, 245 U.S. 547 (1918).
\133\416 U.S. 233 (1974).
\134\These suits, like suits against local officials and
municipal corporations, are typically brought pursuant to 42 U.S.C.
Sec. 1983 and typically involve all the decisions respecting liability
and immunities thereunder. On the scope of immunity of federal
officials, see supra, pp.748-51.
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