State Sovereign Immunity Nuts, Bolts and More VBA Mid-Year Meeting April 1, 2016 Presenter: Jon Rose State Sovereign Immunity: Law governing suits against the State/State Officials. Basic Questions Where does sovereign immunity come from/what is it? Who/What is entitled to immunity? How can the law be enforced against the State? 1
Where does SI come from? English Common Law: The King cannot be sued without his consent Or, according to Blackstone: And, first, the law ascribes to the king the attribute of sovereignty, or pre eminence.... Here it is, that no suit or action can be brought against the king, even in civil matters, because no court can have jurisdiction over him. For all jurisdiction implies superiority of power. 1 W. Blackstone, Commentaries on the Laws of England 234 235 (1765) Ok, what about American Law? 2
A Little History Constitution, Article III, 2 The judicial Power shall extend to all.... Controversies... between a State and Citizens of another State Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793) Under Art. III, 2, citizen of S. Carolina was allowed to sue Georgia in federal court. Not popular decision in Congress... The 11 th Amendment Adopted in response to Chisholm 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. But what about a suit against a State by one of its own citizens? Hans v. Louisiana, 134 U.S. 1 (1890) Citizen of Louisiana tried to sue that state in federal court. Suit was prohibited by the Eleventh Amendment, even though amendment seems to address suits between a state and citizen of another state. Hans has been interpreted to mean that the Eleventh Amendment confirmed the states constitutional sovereign immunity. Seminole Tribe v. Florida, 517 U.S. 44 (1996). 3
By the Way, Who is the State? The State State Agencies Arms of the State See, e.g., Leitner v. Westchester Comm. College, 779 F.3d 130 (2d Cir. 2015). Multi-factor test. Generally, exercising state power with state funds. State officials/employees acting in their official capacity. Unless Ex parte Young applies. General Rule: The Eleventh Amendment prohibits suit against a non-consenting State in federal court (speaks only about the federal judicial power ). What about suits in State court? Immunity in State Proceedings State sovereign immunity is broader than the Eleventh Amendment. Sovereign immunity is a fundamental aspect of sovereignty which the States enjoyed before the ratification of the Constitution and which they retain today. Alden v. Maine, 527 U.S. 706 (2000). Thus, state cannot be sued under federal law in its own courts either. In Vt., no suit unless immunity is waived expressly by statute Jacobs v. State Teachers Ret. Sys., 174 Vt. 404 (2002) 4
What if Congress authorizes suit? Congressional Abrogation Seminol Tribe v. Florida, 517 U.S. 44 (1996) Congress may authorize suit against a state only under an appropriate grant of constitutional authority. Article I of the Constitution (incl. Commerce Clause) is not appropriate. What is appropriate? So far, it seems just 5 of the Fourteenth Amendment. Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) 14 th Amendment Abrogation Congress must unequivocally express its intent to abrogate immunity. There must be congruence and proportionality between the remedy and the injury to be prevented. For example: Title I of the ADA cannot be applied to states. Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) Title II of the ADA can. Tennessee v. Lane, 541 U.S. 509 (2004) 5
Waiver: How does a state consent to suit? Express Waiver by Statute Receipt of Federal Funds Invocation of Jurisdiction Express Statutory Waiver Vermont Tort Claims Act (12 V.S.A. 5601) The State of Vermont shall be liable for injury to persons or property or loss of life caused by the negligent or wrongful act or omission of an employee of the State while acting within the scope of employment.... What about 21 V.S.A. 384(b)(7)? [A]n employer shall not pay an employee less than one and one-half times the regular wage rate for any work done... in excess of 40 hours during a workweek. However, this subsection shall not apply to... State employees who are covered by the Federal Fair Labor Standards Act. (Emphasis added). Can State employees sue under the FLSA? (I.e., is this an SI waiver?) Express Statutory Waiver Waiver must be clear and unambiguous. Must be accomplished by the most clear and express language or by such overwhelming implication from the text [of a statute] as will leave no room for any other reasonable construction. Edelman v. Jordan, 415 U.S. 651, 678 (1974). [A] State s consent to suit must be unequivocally expressed in the text of the relevant statute. Sossaman v. Texas, 131 S. Ct. 1651 (2011). Not enough to simply reference federal law. Beaulieu v. Vermont, 807 F.3d 478 (2015) Section 384(b)(7) was not a sovereign immunity waiver. Sovereign immunity waiver should refer to liability or suit against the State. 6
Receipt of Federal Funds? Similar to express waiver standard. Not enough to show that state received funding under a statute. Statute must unambiguously condition receipt of funds on a sovereign immunity waiver. See Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1995) Invocation of Jurisdiction State may waive Eleventh Amendment immunity by invoking the jurisdiction of a court. For example: File suit in federal court. Proof of claim in bankruptcy court. Removal to federal court. Lapides v. Board of Regents, 535 U.S. 613 (2002) Only immunity from fed. ct. jurisdiction. Maintain underlying immunity from liability. Can the State waive immunity by saying so during litigation? Example: In a sworn interrogatory response, State attorney represents we do not intend to rely on sovereign immunity as a defense to this action? Waiver of Sovereign Immunity? 7
Waiver by litigation statements? Answer s not clear. Cases: Sovereign Immunity is pseudo-jurisdictional; it can be raised at any time, even on appeal. Beauleiu v. Vermont: Suggests possibility that statements could waive immunity if there is prejudice, or duplicitous conduct by the State. To be safe, assume the State cannot waive immunity. Review so far: The State is immune from suit unless: Congress has clearly and unequivocally abrogated immunity pursuant to a valid exercise of an appropriate grant of constitutional authority (i.e., 5 of the Fourteenth Amendment); OR The State has waived its immunity: Expressly by statute; By receiving federal funds which were conditioned on a waiver of immunity; OR By affirmatively invoking federal jurisdiction (only a waiver of immunity from jurisdiction). OR maybe Through its actions in litigation, if there is prejudice or bad faith. What about state officials/employees? 8
Official Capacity Suit Suit against the office a person holds Considered to be a suit against the state itself, and immunity generally applies. But, Ex Parte Young, 209 U.S. 123 (1908) Individual may seek prospective injunctive relief against a state official if it is alleged that official is acting contrary to constitution or laws. Individual Capacity Suit Suit against the officer as an individual. Not considered a suit against the state, even if state has an obligation to indemnify. Damages/retrospective relief available. No prospective/injunctive relief. Common Actions 42 U.S.C. 1983 Suit against state official (individual or official capacity) for violating federal const. or laws. State itself is not a person who can be sued. Bring in state or federal court. Vermont Tort Claims Act 12 V.S.A. 5601(a) suit against the State (in state court only) for certain torts of officials/employees. Can t sue the official/employee individually. 9