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Constitutional Litigation
University of North Carolina School of Law
Saunders, Melissa L.

Outline–Fall ’09
Sunday, November 29, 2009
11:21 AM
1.       Sovereign immunity
A.      Sovereign immunity came from English CL. Each state quickly claimed this, even while they were still colonies. States would recognize each other’s immunity. If you sued NC in a VA ct, the VA ct would throw it out. This still holds when you try to sue a state in its own ct system. 
B.      Con does not mention sovereign immunity at all. But there are some provisions which can be read as state waiving part of sovereign immunity:
                                          i.            Supremacy clause: maybe when con conflicts w/ sovereign immunity, con will win
                                         ii.            Parts of A3 may permit suits against the states in fed ct: diversity clause, etc. Fed power extends to cases rising under fed law. 
C.      Con was unclear on whether CL persisted and if suits against the states were still not allowed. Chisholm v. Georgia settled the issue that con did permit suits against the states. 
                                          i.            A3 contemplates this kind of suit, and GA ratified A3, thus waiving the sovereign immunity rights.
                                         ii.             Dissent held that nothing in con allowed cts to entertain suits against states, it just mentioned controversies between states. Given CL tradition of sovereign immunity, and no explicit allowing, it should be read narrowly to allow only cases where state is P, not D. 
                                       iii.            Folk did not like this, and we got:
D.      Eleventh Amendment: 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.
                                          i.            11A was clearly meant to overrule Chisholm, but we don’t know why. 
a.       Congress didn’t leave any clear record why they thought Chisholm was wrong legally. 
b.      Politically, it was clear congress was afraid that unfettered suits against states would lead to bankruptcy due to the huge amount of war debt that was owed. 
c.       This didn’t matter for 100 years or so, as 11A didn’t do much for that time. John Marshall held it only applied when state was named as a party of record, thus clever attys sued officials, not the state. 
                                         ii.            Hans v. Louisiana: A citizen of LA sued the state for unpaid interest on war bonds, claiming 11A did not apply since he was not a ‘citizen of another state’ (ie he was an LA citizen). 
a.       Ct tossed the suit and tossed the party of record rule, disallowing any suit against the state by instead suing a state official. 
b.       Ct ruled it was not logical to think that framers of 11A would have allowed folks to sue their own state, but not allow other state’s folk to sue foreign states, so no one was allowed to sue. This read the CL sovereign immunity into the con through 11A and effectively left folk w/o any remedy against states for violating con.
c.       The Hans immunity approach could be very damaging. It would bar all suits against states, and since a state can only act through its officials, it would be logical to extend the immunity to officials. Since this would prevent any sort of civil rights action against the states, Hans has been limited. 
                                       iii.            Lincoln County v. Lunning held that suits against counties were not barred by 11A, and this has been extended to other local subdivisions of govt.
E.       Hans has been overruled to the extent that it does not allow suits against state officials who are acting unconly:
                                          i.            Ex parte Young: MN passed a law fixing RR rates. RR co. challenged the rates and fed ct put an injunction on putting them into effect. MN AG (Young) still sought a writ of mandamus to enforce the rates. The penalty provision of the law would subject anyone who sold a ticket for more than the approved price to 5k fine and 5 years in jail. RRs brought suit against Young to prevent enforcement of the rates.
a.       Ct held the act here was deemed to be uncon, P’s attempt to enforce it was also uncon. When he acted unconly, he was, in effect, stripped of his state office, and the complaint went against him as a private individual. 
                                                                              i.            If you sue official, even in his official capacity, alleging he is currently or is just about to violate con, you can ask for injunctive relief w/o having it be considered a suit against state contrary to 11A. 
b.      Dissent: No relief was sought against AG except that which would tie the hands of the state; the true target was the state itself, which should be immune under 11A. A state can only act through its officers, and targeting them is the same as going after the state itself.
                                         ii.            Young only applies to suits which seek prospective injunctive relief, not retro cash relief:
a.       Edelman (D) v. Jordan (P): State screwed up in its administration of the Aged, Blind, and Disabled Act, not adjusting claims in time, and mot making some payments that should have been named. P sued the state official in charge of the program.
                                                                              i.            Ct held that state could not be forced to pay back the money that had been erroneously w/held
a.       funds cannot be paid out of the state treasury unless 11 has been waived, no matter whose (ie, what official’s) name is on the suit. No one thinks the official is going to pay the award against him; we all know it comes from the state’s funds. Any other ruling would eviscerate 11. Ex parte Young does not go this far.
                                                                             ii.            Ct held that a state does not waive 11A sovereign immunity by participating in a joint fed/state program.
a.       11A is not waived unless made by the most express language or by such overwhelming implication from the text as to leave no room for any other reasonable construction. The cases that held otherwise were distinguishable from this. If there were not such a req, almost any fed program that a state chose to participate in would make it

ent legis” (section 5) of 14A.
                                                                           iii.            Congress can do this if it is a necessary and appropriate means of enforcing 14A.
b.      Seminole Tribe v. Florida, 517 US 44, ct held that congress could not abrogate state sovereign immunity pursuant to Article I or commerce clause powers.
c.       Boerne v. Flores, 521 US 507, the ct held that congress could not prohibit state conduct that 14A itself would permit, since 14A is source of abrogation power. This was the start of a series of cases which held congress had exceeded its enforcement powers under 14A, section 5:
                                                                              i.            Kimel v. Fla. Bd. of Regents: Age Disc in Empmt Act cannot use 14A5 power as age is not a suspect classification
                                                                             ii.            Florida Prepaid, etc. (see above): held the legis passed by congress did not support the kind of widespread deprivation of con rights 14A was meant to prohibit; therefore, no 14A5 enforcement allowed.
                                                                           iii.            Bd of Tr v. Garrett: ADA was not good for 14A5. Disability triggered only rational basis review, therefore it might be entirely rational for a state to conserve resources by hiring only abled folk, rather than paying to accommodate disabled folk.
                                                                           iv.            Nevada Dept of Human Resources v. Hibbs: Ct held that FMLA was a targeted response, which was congruent and proportional to the violations it was supposed to stop. Therefore, 14A5 power could be used.
                                                                            v.            Tenn. v. Lane: Article II of ADA, which prohibits exclusion of disabled folk from services, etc of a public entity was a 14A5 power-able section.
                                       iii.            State Immunity in State Court: States have no immunity in the state courts of another state: Nevada v. Hall, 440 US 410 (holding NV could be sued in CA ct when a NV empee caused an auto accident in CA). 
a.       But see Alden v. Maine, 527 US 706, folk sued the state of ME in state court in an attempt to avoid 11. Ct held this could not be done, that congress does not have the power to subject non-consenting states to damages in state cts. 
                                       iv.            Have the feds bring the suit: Get DOJ to bring the suit.