Nevada v. Hall: The 11th Amendment's Forgotten Precedent

By Alan Tauber

The concept of sovereign immunity is as old as the concept of the sovereign. Since the creation of the nation-state, people have only had permission to pursue a suit against their sovereign at his or her leave. While many sovereigns were quite willing to allow suits as a matter of course, the privilege could always be revoked without explanation.

Here in the United States an interesting legal debate has raged over the issue of sovereign immunity since the drafting of the Constitution. Article III of the Constitution grants federal courts original jurisdiction over suits between a state and the citizens of another state. This seemed harmless during the convention, and only a few delegates could see the battle that was to come.

The issue at hand is whether or not states can assert sovereign immunity when they are named as defendants in a suit. One reason Article III was written was to allow states to recover monetary damages from the citizens of another state. Most of the delegates never imagined that the roles would be reversed. For most of them, it went without saying that the states would be immune from suit without their consent. It was not until the landmark case of Chisholm v. Georgia 1 that any of them would realize their mistake.

Part I of this article will examine the history of the 11th Amendment, and the events that led up to its ratification. Part II will examine the life of the Amendment from the time of its enactment until 1979. Part III will examine the case of Nevada v. Hall, which provided a loophole in the doctrine of state sovereign immunity, and Part IV will examine the meaning of this case on 11th Amendment jurisprudence, as well as why it has been under-utilized.

Part I: The Ratification of the 11th Amendment

From the drafting of the Constitution, the Constitutional delegates were concerned about the wide power granted to the judiciary by Article III, Section 2. This article reads, in relevant part, that "[t]he judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution? to Controversies between two or more States; -- between a State and Citizens of another State."2 The Federalists insisted that states could only be plaintiffs in actions covered in Article III, but at least three delegates in the Virginia ratification convention disagreed with this view.3 They were vocally opposed by none other than Alexander Hamilton, James Madison and John Marshall. These men insisted that because of the doctrine of sovereign immunity, an individual would be barred from bringing suit against a state.4 The problem, as Patrick Henry saw it, was that sovereign immunity was not written into the Constitution. His fears would be validated in 1791 when the first suit against a state was filed in the Supreme Court, in Vanstophorst v. Maryland.5

The case concerned a group of Dutch bankers who claimed to be creditors of the state. On February 8, 1791, return on the summons to Court served to the governor and attorney general of Maryland was reviewed by the Court, and the state was ordered to plead the case within two months.6 One citizen was quite vocal about their feelings on the suit, as shown in a letter to a local paper:

Should this action be maintained, one great national question will be settled; that is, that the several States have become mere corporations, upon the establishment of the General Government: For a Sovereign State can never be sued, or coerced, by the authority of another government. Should this point be supported, in favor of this cause against Maryland, each State in the Union, may be sued by the possessors of their public securities, and by all their creditors.7

 

This individual's fears were not confirmed or denied, as the case was never decided. For reasons unknown, it was put off until the next term, and finally discontinued, each party agreeing to pay its own costs.

The second major suit brought by an individual against a state was Oswald v. New York.8 The suit was brought on behalf of Elizabeth Holt, the widow of John Holt, a printer hired by the New York legislature. He held the position until his death in the early 1780s. In 1784, Mrs. Holt was hired to do some printing for the state, in return for some fairly large sums. Despite receiving a large payment, Mrs. Holt claimed she did not receive fair compensation. The suit was brought by Eleaxer Oswald, a citizen of Pennsylvania and co-executor of John Holt's estate, following the death of Mrs. Holt.9

In August of 1792, an order was issued requiring the state to appear before the Supreme Court on the first day of the next term. In February 1793, when New York failed to send a representative, counsel for the plaintiff made a motion for default judgement against the state. On February 20, 1793, the Court ordered that unless the State appeared before the Court by the first day of the following term, a judgement of default would be entered against New York.

On August 5, 1793, the State of New York appeared by counsel Jared Ingersoll who argued that:

[T]he said State of New York, now is, and the day of the commencement of the said action by the said Eleaxer Oswald, was a free sovereign, and independent State; and that the said State of New York being so free, sovereign, and independent, cannot nor ought to be drawn or compelled against the will thereof to appear to, or answer, before the Justices of the Supreme Court of the United States, or other Judges whatsoever, on any pleas, plaints, or demands?10

Despite his argument, the suit was continued by the Court until February of 1795, when a twelve man jury awarded the plaintiff $5,315.00 in damages.11

Prior to the final outcome in the Oswald case, the Court had settled the matter of whether federal courts had jurisdiction over cases of this kind. Although filed later than Vanstophorst or Oswald, the Court first answered the question in Chisholm v. Georgia.12 The facts surrounding the Chisholm case are similar to that of the other two cases, involving a debt claim against a state. In 1777, Thomas Stone and Edward Davies were commissioned by the Executive Council of Georgia to make a large purchase of supplies for American troops stationed near Savannah, from a merchant in Charleston, South Carolina. The merchant, Robert Farquhar, was to receive $169,613.13 for the supplies. He never received the money.13 Instead, the State of Georgia records that Stone and Davies were given the necessary sum in continental loan office certificates and the money disappeared after that. Farquhar died suddenly in January of 1784. He left his estate to his ten-year-old daughter, Elizabeth, and named Alexander Chisholm of Charleston as his executor.14

Chisholm filed a petition with the Georgia State Legislature in 1789, but, like Farquhar, was rebuffed. He then filed suit against Georgia in the United States Circuit Court for the District of Georgia. The case was argued before two judges in the October 1791 term of the Circuit Court. Both judges believed that Georgia could not be sued by a citizen of South Carolina in the Circuit Court. Chisholm appealed the decision to the Supreme Court.

Originally set for argument on August 11, 1792, the case was put off until February 4, 1793 because Georgia was not represented at the original hearing. Following the motion of the Attorney General of the United States, Georgia was notified and required to appear before the Court. Again the state failed to do so. The Court decided to hear the argument of the U.S. Attorney General, who argued that Article III, Section 2 of the Constitution, as well as the Judiciary Act of 1789, recognized the Court's jurisdiction in the matter.15 The Court took the matter under advisement. On February 18, 1793 the Court rendered its decision. In five separate opinions the Court ruled four to one that the jurisdiction granted to the Court by Article III of the Constitution and the Judiciary Act of 1789 extended to a suit brought against a state by a citizen of another state.16

The reasons for this decision were varied. One Justice, John Blair, believed that the states had relinquished their sovereignty to the extent that they might be sued in federal court by ratifying the Constitution. He believed sovereignty wouldn't serve as a defense because there were cases where states can be named as defendants in suits, specifically when sued by other states or by the Federal Government. Justice Blair believed that if they could be defendants in those suits, they could be defendants in any suit.17 Justice James Wilson, a signer of the Declaration of Independence, contended that a state was obligated to uphold justice, that a state was subordinate to the people and saw no reason why a person could be called into court, but a state could not.18 He argued that sovereignty did not rest with the state, but with the people, stating that:

[t]he citizens of Georgia, when they acted upon the large scale of the Union, as a part of the "People of the United States," did not surrender the Supreme or Sovereign Power to that State; but, as to the purposes of the Union, retained it to themselves. As to the purposes of the Union, therefore, Georgia is not a sovereign state.19

There was immediate opposition to the decision, and the legislatures of Massachusetts and Virginia proposed amendments to the Constitution on the matter. Georgia was also interested in a Constitutional amendment. On January 2, 1794, Caleb Strong, a Senator from Massachusetts, introduced a resolution calling for an amendment.20 On January 14, the Senate passed the resolution twenty-three to two. The proposed amendment was reported to the House of Representatives the next day, and was passed by the House on March 4, by a vote of eighty-one to nine.21 On January 8, 1798, President John Adams announced that the necessary twelve states had sent notices of ratification and the proposal was officially adopted as the Eleventh Amendment.22

Part II: Supreme Court Interpretation of the Eleventh Amendment

The reason for such quick ratification was a host of suits filed by individuals in federal court following the high Court's decision in Chisholm. A variety of suits were filed, some of which were successful. However, following ratification of the amendment, all of this changed. On February 14, 1798, in Grayson v. Virginia the Court ruled that "[t]he Court is of the opinion, that, on consideration of the Amendment of the Constitution respecting suits against States, it has no jurisdiction of the Cause."23 Thus the Court gave its stamp of approval to the Eleventh Amendment, officially recognizing it as a valid part of the Constitution.24

Despite the relatively straightforward wording of the Eleventh Amendment, the Court has interpreted it to go well beyond merely barring citizens of one state to bring suit against another.25 The Court has interpreted the Amendment to bar suits of one state from suing another if the plaintiff state is merely acting on behalf of its citizens,26 suits of citizens against their own state27 and suits against a state by foreign countries.28 The Court's interpretation falls into three general periods: first, from ratification to the Court's decision in In re Ayers,29 in 1887; second, from 1887 to the 1908 decision in Ex parte Young;30 and finally, the period from 1908 to the present. These three periods cover the various expansions and contractions of the scope of the Eleventh Amendment.

In re Ayers was an attempt by the Court to summarize earlier decisions and set up rules for future cases. Up to this point, individuals tried to circumvent the Eleventh Amendment by suing state officers instead of the states themselves. The Amendment had been rather effective in preventing such suits up to that point.

One of the early extensions of the Eleventh Amendment took place in New Hampshire v. Louisiana.31 In this case, the state of New Hampshire, acting on behalf of its citizens, sued the state of Louisiana under the section of the Constitution that allows one state to sue another. The Court rejected this suit by proxy, holding that the Eleventh Amendment bars suits between states when the plaintiff state is acting on behalf of its citizens.32

The next major extension took place three years later in Hans v. Louisiana.33 Hans was a citizen of Louisiana and held bonds issued by the state. The state failed to pay interest to him and he brought suit in circuit court. The suit was dismissed by the Court upon the argument of the state attorney general that it was precluded by the Eleventh Amendment. Hans subsequently appealed to the Supreme Court. The Court acknowledged that the language of the Eleventh Amendment did not specifically bar such a suit, but contended that the framers intended to preclude all suits against states by individuals.

Another major extension of the Eleventh Amendment came in Monaco v. Mississippi.34 The state of Mississippi issued bonds to several citizens of foreign countries, including Monaco. Realizing that they could not force Mississippi to pay, the citizens of Monaco gave the bonds to the principality as an absolute gift. Monaco asked leave to bring suit before the U.S. Supreme Court. The Court rejected the request, and repudiated Chisholm v. Georgia, declaring that it would only accept jurisdiction of such suits when the state being sued was a willing party. This was an interesting decision, because, while the Eleventh Amendment does not specifically bar suits between a foreign nation and a state, Article III Section 2 specifically grants the high Court original jurisdiction over such suits. In order to avoid the conflict, the Court ruled that all parties must consent, widening the scope of Eleventh Amendment protection.

However, the Court did start placing restrictions on the Eleventh Amendment, most notably in Ex parte Young.35 In this case, the Court upheld an injunction issued to prevent a state attorney general from enforcing a state law that was alleged to violate the Fourteenth Amendment. With a few notable exceptions, and a recent shift in Eleventh Amendment jurisprudence, most of the decisions have followed Ex parte Young.

One such exception was Great Northern Insurance Co. v. Reed.36 This case dealt with a suit designed to recover taxes paid under protest. The state of Oklahoma levied an annual four percent tax on premiums received in-state by out-of-state insurance companies. The state had also passed a law consenting to be sued for the recovery of alleged illegal taxes, but limited this waiver of immunity to state courts.37 Due to diversity of citizenship, Great Northern chose to bring suit in federal court. The Supreme Court agreed with Oklahoma and sustained the right of the state to limit its waiver of immunity solely to state courts.

The first major limitation to the Eleventh Amendment came in Cohens v. Virginia.38 In this case, the Supreme Court ruled that a suit begun by a state against an individual in state courts, could be appealed to the Supreme Court from the highest state court having jurisdiction. As long as the action is not "commenced" by the individual, the Eleventh Amendment does not apply, even if the result is against the state.

One limitation on the Eleventh Amendment that remains to this day was originally identified in Osborn v. Bank of the United States.39 The Court ruled that the immunity from suit guaranteed by the Eleventh Amendment does not apply when a state officer is acting pursuant to an unconstitutional state law. The Court reasoned that a state officer is not acting in his or her official capacity when the law they are enforcing violates the Constitution, and no other provision of the Constitution would prevent an individual from seeking a remedy from the violation. However, the state does not lose immunity, merely the officer of the state, and damages can only be collected from him or her in their individual capacity. The Court has further stated that any state officer acting in excess of their statutory authority is also not considered to be acting on behalf of the state and therefore sovereign immunity does not apply.40

Two other limitations on the Eleventh Amendment concern political subdivisions of a state and state government corporations. The Court has ruled that counties and municipalities should be treated as citizens of the state for purposes of jurisdiction41 and that corporations are separate from their stockholders, and thus could be sued, even if a state was sole owner of the corporation.42 However, the Court has held that when a state is conducting a non-governmental type business, the state does not lose its immunity, provided the business is conducted directly by the state.43

The final major limitation to the Eleventh Amendment has to do with the question of what constitutes consent to be sued. In two major cases, Petty v. Tennessee-Missouri Bridge Commission 44and Parden v. Terminal Ry. of Alabama State Docks Dep't 45the Court has ruled that a state can consent to be sued without specifically giving consent, but that consent can be implied from state action. Both cases dealt with states joining interstate compacts or entering into an interstate agreement, which specifically provided federal court remedies to damages. In Petty, Tennessee and Missouri had joined a compact which stated that the commission had power to sue and be sued, and in Parden, the Federal Employee's Liability Act provided that railroads operating in interstate commerce would be liable for any on the job injuries sustained by employees. By operating an interstate railroad, the Court held, Alabama had given its implied consent to be sued under the Act.

Part III: Nevada V. Hall: A method for skirting the 11th Amendment?

At this point in history, the Court had ruled that state officers could be sued if they were acting outside the bounds of their office, or if their actions were based on an unconstitutional law. State corporations could be sued because they were separate from their stockholders. Yet states themselves remained immune from suit, and in fact could put limits on both their consent to be sued and their liability if consent was granted. Nevada v. Hall 46changed this standard.

The Respondents were residents of California, injured on a California highway when their vehicle collided with a vehicle owned by the University of Nevada that was being operated on official business.47 The California Supreme Court ruled that the Respondents could bring suit against the State of Nevada and that a Nevada law, limiting liability, did not apply. The trial court found against the State of Nevada and awarded respondents $1,500,000 in damages. Nevada appealed the decision and the California Court of appeals affirmed and the State Supreme Court denied review. Nevada then appealed the decision to the United States Supreme Court.

The Court ruled that the Eleventh Amendment does not preclude suit against a state in the courts of a sister state. Further, the full faith and credit clause of Article IV48 require a limit on any judgement rendered against the defendant-state fixed by its statutes if the limit is incompatible with the forum state's public policy.49 The Court ruled that sovereign immunity between states is a matter of comity and that since the Supreme Court of California gave respondents leave to sue, comity50 had been waived. Justice Stevens, writing for the majority, further argued that the Eleventh Amendment provided no bar to suit because it is specific to suits brought in federal court, while the pending matter was a state court issue.51 He did conclude that states might be advised to voluntarily grant immunity to each other or at least agree to respect each other's statutes limiting liability in order to maintain friendly interstate relations.52

Justice Rehnquist dissented from the opinion, arguing that the majority opinion makes no sense in light of precedent or the assumptions the Constitution was based on regarding the sovereign immunity of states.53 He argued that the Constitution set up the federal courts as a neutral forum for hearing disputes between citizens of one state and another state. By passing the Eleventh Amendment, the states indicated that they wished to close any forum in which they could be named as a defendant without their consent.54 Justice Rehnquist argued that it would be illogical for the states to close off the neutral forum, while allowing suits to continue without their consent in a biased forum.

Part IV: Questions in the Aftermath of Nevada v. Hall

Despite this decision, which opened a large door for suits against states, not only without their consent, but also without any limiting of liability, state courts have not been flooded with suits against their sister states. One possible reason is that the Court did not make clear whether or not the specific facts of this case made the decision possible. If the facts are a controlling factor, then one can begin to understand why suits of this sort have not been forthcoming. After all, it's not every day that agents of a state on state business cause grave harms in other states.

Yet the door has been opened, and for twenty-one years, no one has stepped through. This case has been sitting out, never overruled and only rarely referenced. On the rare occasions that the Court does rely on the Nevada ruling, it does so in reference to the full faith and credit analysis, not the Eleventh Amendment analysis. Perhaps the Court's recent trend of re-expanding the scope of the amendment has cowed people, not wanting to give the Court a chance to close off this avenue.

Yet another possibility is the trend of many states to waive their immunity, either through statute or judicial decree. This makes it unnecessary to either seek the waiver judicially or, as the minority feared, forum shop. If a state does not assert its immunity from suit there is no reason to bring up Nevada v. Hall. Yet the prospect is out there. With the Court reasserting the primacy of the Eleventh Amendment, states have a greater incentive to claim immunity, fairly confident in the knowledge that the Supreme Court will back them up.

Overall, neither side has been vindicated. The minority's fear that states would unnecessarily assert jurisdiction over their sister states leading lawyers to forum shop, or find the smallest pretense for filing suit, have not come to pass. On the other hand, few people have taken advantage of this loophole and exercised their right to seek a redress of grievances against a state, while the opportunity presented itself.

Would Nevada v. Hall survive review before the present Court? Probably not. Justice Rehnquist is now Chief Justice and his argument has always been plausible. Why should a state's immunity be respected in the neutral federal courts and not in the potentially biased courts of a sister state? What are the results of the breakdown of comity? These questions weigh heavily on the mind of any Eleventh Amendment scholar, and until they are answered Nevada v. Hall will probably continue to be ignored.

 

Footnotes

1. 2 U.S. (2 Dall.) 419 (1793).

2. U.S. Const., Art. III, Sec. 2.

3. Mathis, Doyle, "The Eleventh Amendment: Adoption and Interpretation," 2 Georgia Law Review 212, 1968. The Three delegates who expressed disbelief of the Federalists views were Patrick Henry, George Mason and Edmund Pendleton. Henry in particular disagreed with the contention that Article III limited the State's role to that of the Plaintiff only.

4. Id. at 213.

5. 2 U.S. (2 Dall.) 401, (1791).

6. Minutes of the Supreme Court, Vol. A, February 8, 1791.

7. Hartford Connecticut Courant, March 7, 1791.

8. 2 U.S. (2 Dall.) 415 (1793).

9. Id.

10. Id.

11. Minutes of the Supreme Court, February 2, 5, 6, 1795; Docket 5.

12. 2 U.S. (2 Dall.) 419 (1793).

13. Id.

14. See Supra note 3 at 218.

15. 2 U.S. (2 Dall.) 419, 420-22 (1793).

16. Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793).

17. Id. at 450-51.

18. See Supra note 3 at 220.

19. 2 U.S. (2 Dall.) 419, 457 (1793).

20. Ante at 22

21. See Supra note 3 at 227.

22. Id. Mathis goes on to note that ratification had actually been achieved on February 7,1795 when North Carolina ratified it. However several states were slow to notify the national government. This means that the amendment was ratified less than one year after Congress finished action on the resolution and less than two years after the Chisholm decision.

23. Grayson v. Virginia,

24. While it may seem the Court had no choice, the decision was a validation of the process. By ruling the way they did in Grayson the Court acknowledged that the proper procedure to amend the Constitution had been followed.

25. The Eleventh Amendment reads: "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 fo the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." The words "shall not be construed" have raised many questions about the scope of the amendment. These questions will be dealt with later.

26. New Hampshire v. Louisiana, 108 U.S. 76 (1883).

27. Hans v. Louisiana, 134 U.S. 1 (1890).

28. Monaco v. Mississippi, 292 U.S. 313 (1934). While the amendment does bar suit by "citiznes or subjects of any foreign state" it does not specifically bar the foreign state itself from bringing suit.

29. 123 U.S. 443 (1887).

30. 209 U.S. 123 (1908).

31. 108 U.S. 76 (1883).

32. South Dakota v. North Carolina, 192 U.S. (1904). The Court held in 1904, however, that a state could bring suit against another state if the state itself, rather than its citizens, would receive all payments awarded.

33. 134 U.S. 1 (1890).

34. 292 U.S. 313 (1934).

35. 209 U.S. 123 (1908).

36. 322 U.S. 47 (1944).

37. See Supra note 3 at 234-35.

38. 19 U.S. (6 Wheat.) 264 (1821).

39. 22 U.S. (9 Wheat.) 738 (1824).

40. Pennoyer v. McConnaughy, 141 U.S. 1 (1891), Scully v. Bird, 209 U.S. 481 (1908).

41. Cowles v. Mercery County, 74 U.S. (7 Wall.) 118 (1868).

42. See e.g. United States v. Planters' Bank of Georgia, 22 U.S. (9 Wheat.) 904 (1824), Bank of Kentucky v. Wister, 27 U.S. (2 Pet.) 318 (1829), and Briscoev. Bank of Kentucky, 36 U.S. (11 Pet.) 257 (1837).

43. Murray v. Wilson Distilling Company, 213 U.S. 151 (1909).

44. 359 U.S. 275 (1959).

45. 377 U.S. 184 (1964).

46. 440 U.S. 410 (1979).

47. Id. at 411-12.

48. U.S. Const., Art. IV, Sec. 1 states, in relevant part: "Full Faith and Credit shall be given to the public Acts, Records, and judicial Proceedings of every other State."

49. Hall, 440 U.S. 410, 424 (1979).

50. Justice Stevens ruled that "immunity in another sovereign's courts could rest only on agreement, express or implied, between the two sovereigns or a voluntary decision by one to respect the immunity of the other." Washington University Law Quarterly, "Eleventh Amendment Does Not Preclude Suit Against One State in the Courts of A Sister State," Vol. 58:481, Number 2. The Court defined comity in the 1895 case of Hilton v. guyot, 159 U.S. 113, 163-4 (1895):

"Comity" in the legal sense is neither a matter of absolute
obligation, on the one hand, nor of mere courtesy and good
will upon the other. It is rather the recognition which one...
allows within its territory to the legislative, executive or judicial
acts of another...having due regard both to...duty and
convenience, and to the rights of its own citizens, or of
the other persons who are under the protection of its laws.

51. 440 U.S. 410, 421 (1979).

52. Id. at 426.

53. Id. at 433.

54. Id. at 439-443.