|
Article Excerpt
INTRODUCTION
I. SOVEREIGN IMMUNITY: THE POLITICAL NARRATIVES OF HANS V. LOUISIANA A. Sovereign Immunity: A Crash Course B. Torts Versus Contracts: A Misstep II. THE COMMON LAW PLEADING SYSTEM A. Common Law Framework." A Case Study B. Madrazo Revisited C. Marshall Court: Continued D. The Pattern Continues E. The Bondholder Cases F. Federal Sovereign Immunity: The Same Thing G. Hans v. Louisiana: A No-brainer H. Ex Parte Young III. IMPLICATIONS (BRIEF) CONCLUSION
INTRODUCTION
The Eleventh Amendment states plainly: "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." (1) Despite decades of vociferous debate, (2) this seemingly docile text has eluded even the most valiant efforts to produce scholarly consensus. (3)
Hans v. Louisiana (4) and Ex parte Young (5) are two of the most important pillars bracing sovereign immunity law. (6) They are also the two most misunderstood. Hans is widely accepted as standing for a simple proposition: the Eleventh Amendment precludes citizens from bringing suits against their own states. Practically every discussion of Hans implicitly yet erroneously assumes that the decision represented some sort of departure from prior case law. Moreover, scholars and judges currently understand Hans as a decision that, in interpreting the Eleventh Amendment, either obfuscated its text or illuminated its soul. Hans does neither or, at least, it meant to do neither. Hans was not an atextual exegesis of the Eleventh Amendment; it was not even a reading of the Eleventh Amendment. More importantly, and contrary to conventional wisdom, Hans was consistent with every sovereign immunity case that preceded it. Hans was, in fact, a mundane application of a remarkably consistent set of common law doctrines.
Current accounts of Ex parte Young uniformly overlook the indispensable role played by these doctrines. The lore surrounding Ex parte Young is by now cliche the Court employed a novel "legal fiction" that treated an officer as a state actor for purposes of the Fourteenth Amendment, yet as a private individual for purposes of the Eleventh. (7) The result was a supposedly new, somewhat nebulous cause of action. Recently, John Harrison argued that
Ex parte Young does not represent an exception to ordinary principles of sovereign immunity, it does not employ a legal fiction, it does not imply a novel cause of action under the Constitution or other federal law, and it does not create a paradox by treating officers as state actors for one purpose and private persons for another. (8)
He is right, but for the wrong reasons. In describing Hans and Ex parte Young, contemporary narratives commit the same underlying sin: they do not consider how of the substance of sovereign immunity law was shaped by circumstances of common law procedure.
This Note argues that judges and scholars have overlooked the procedural centerpiece of sovereign immunity: the common law pleading system. The rules of pleading interacted with substantive doctrines of law to create a system of remedies universally familiar to lawyers of the nineteenth century. The dynamics were simple but counterintuitive. If the victim of a state-sanctioned wrong brought suit against an officer, then the common law was initially unconcerned with the defendant's status as a state official. For purposes of pleading, he could be a sailor, chariot chauffeur, or chair salesman; as long as there was personal jurisdiction over the defendant, he could not escape the court's jurisdiction merely by asserting his status as an officer. However, in responding to the plaintiff's declaration, the defendant was then allowed to plead to the jurisdiction, arguing his actions were authorized by the state and hence shielded by sovereign immunity. This did not automatically close the matter. If the Constitution barred the state from providing such authorization, then the court would ignore the unconstitutional authorization and pierce the state immunity shield that otherwise protected officers.
This seemingly trivial pleading sequence was the mainspring behind sovereign immunity, and we have forgotten it. As a result, the two most important cases in sovereign immunity law have been rather dramatically misunderstood. Part I of this Note recapitulates how modern scholars have characterized Hans--understanding this mischaracterization will later, in Part VI, allow us to understand the governing dynamics undergirding Ex parte Young. Part II describes the fundamentals of sovereign immunity. Part III addresses a somewhat appealing but ultimately misguided approach to immunity doctrine, which is based on a distinction between torts and contracts. Part IV introduces the common law pleading system and the relevant doctrines that complemented its role in sovereign immunity. Part V applies this framework to a detailed chronology of nineteenth-century immunity cases. Part VI argues that Hans v. Louisiana and Ex parte Young were predictable applications of this framework. And finally, this Note concludes briefly with some possible implications of our new understanding.
I. SOVEREIGN IMMUNITY: THE POLITICAL NARRATIVES OF HANS V. LOUISIANA
The jurisprudence surrounding the Eleventh Amendment has been criticized from every angle, particularly for its apparent departure from text. (9) Hans v. Louisiana has been indicted as the cardinal culprit; it is often described as a doctrinal turning point, (10) a blatant textual contradiction, (11) and an opinion that simply got it wrong. (12)
There is no doubt that Hans departed from the plain language of the Eleventh Amendment. The Eleventh Amendment rather lucidl"provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit ... commenced ... against one of the United States by citizens of another state." (13) However, in plain contradiction of this language, the Court unanimously concluded that citizens could not bring suits against their own states under federal question jurisdiction, (14) a situation clearly not contemplated by the mere words of the Eleventh Amendment.
In explaining these cases, legal historians have taken a cynical approach. John Orth, a leading Eleventh Amendment scholar, argues that Hans can be explained by the postbellum political climate. (15) After the Compromise of 1877--where Democrats agreed to support Rutherford B. Hayes as president in exchange for Northern withdrawal of troops from the South (16)--the Court manipulated the text of the Eleventh Amendment in order to emancipate the South from claims brought by its creditors. (17)
Orth is not alone. John Gibbons also explains Hans by alluding to "popular pressure that actually dictated [the] ultimate decision." (18) Edward Purcell goes further, arguing Hans should not be dignified as a valid precedent. (19) He contends that the Court was essentially forced to abandon its "general position [of] guaranteeing the worth of government bonds" by two factors: (1) the determination of many Southern state governments to repudiate their debts, and (2) the notion that sectional reconciliation was perceived as the "highest good." (20) In the words of another scholar, "the Court was faced with the unpalatable choice of abandoning accepted Contract Clause doctrine or establishing the potentially crippling precedent of state non-compliance with Supreme Court judgments." (21) In other words, these scholars posit that Hans was the Court's attempt to preserve the delicate political equilibrium that was beginning to form after the bitter years of war and Reconstruction. To meet this end, and to avoid widespread state noncompliance with federal court decisions, the Court was forced to contradict not only the Eleventh Amendment but also its own precedent. (22)
The Court had apparently traded the literal words of the Eleventh Amendment (23) for the greater good of political tranquility or, at worst, political convenience. (24) Whatever the particulars of each narrative, scholars seem to agree that the history of the Eleventh Amendment "is in large measure an unflinchingly political one." (25) With the bulk of scholarly commentary focusing on Hans as the outgrowth of a political situation, it is no surprise that this view has seeped into contemporary Court decisions. (26)
This approach is misleading. The political climate may or may not have facilitated the Court's immunity jurisprudence. What it did not do is mark a shift in the application of that jurisprudence. Hans v. Louisiana was a predictable case, consistent with every sovereign immunity case that came before it. So too was Ex parte Young.
When contemplating state immunity, contemporary scholars have often unduly limited their discussion to one about the Eleventh Amendment. (27) When scholars do consider sovereign immunity as an independent doctrine, they typically focus on the origins of such a doctrine. Martha Field advanced a relatively straightforward argument: sovereign immunity existed as a doctrine of common law, which was neither ratified nor rejected by the grants of jurisdiction in Article III. (28) More recently, Caleb Nelson insightfully argued that sovereign immunity was ultimately derived from principles of personal jurisdiction. (29) This suggests that courts were powerless to instruct states to appear before them.
The strength of this scholarship is that it disentangles sovereign immunity from the Eleventh Amendment and treats it as a separate doctrine. The concern here is not with an "objective" analysis of what sovereign immunity is or whence it came. (30) Rather, this Note attempts a doctrinal history as told by the nineteenth-century Court opinions--this means, as we will see, separating sovereign immunity from Eleventh Amendment immunity. More importantly, it means placing state immunity in its appropriate procedural and substantive context. To do this, we must first understand the general idea behind sovereign immunity.
A. Sovereign Immunity: A Crash Course
The principle of sovereign immunity is a simple one: a state cannot be sued by an individual without its consent. (31) This resembled, or perhaps derived from, doctrines of personal jurisdiction. (32) First-year civil procedure courses often begin with a fundamental axiom: before a court can adjudicate a defendant's rights, it must have power over that defendant. If a defendant did not appear voluntarily, the court could not proceed unless it could command the defendant to appear--that is, unless it had personal jurisdiction over the defendant.
Under the general law of nations, sovereigns enjoyed a broad exemption from this command. This basic principle has been articulated, justified, and explained by a wide range of commentators. (33) International commentators well known in the Founding era (34) cite with disdain notorious examples where this general law was violated. (35) It is beyond the purview of this Note to examine or scrutinize these justifications, but it is important to note that the doctrine itself was taken seriously (36) and that it was not disturbed by the novel constitutional structure of the early American Republic. (37)
Whatever we might think of this principle, it was an important limitation on the power of the courts. Without the power to command states to appear, federal (and state) courts lacked the rough equivalent of personal jurisdiction over the states. In other words, states could only be sued if they consented. (38)
This principle is indispensable to understanding the rhetoric of states when faced with suits after 1791. For example, when Georgia was sued by a plaintiff seeking to enforce a contract, the Governor of Georgia asserted that Georgia has long been "a free, sovereign and independent State, and that the said State of Georgia cannot be drawn or compelled [by an individual] ... to answer, against the will of the said State of Georgia, before any ... Court." (39) This principle survived the Constitution and was fundamentally assumed in Article III. (40)
Because states cannot be sued without their consent, state immunity cases rarely dealt with plaintiffs suing states qua states. Rather, plaintiffs sued state officials--governors, treasurers, tax collectors, and the like--as individuals. This forced the courts to confront the same jurisdictional question over and over: can this plaintiff sue this defendant without actually suing the state as a sovereign? (41)
B. Torts Versus Contracts: A Misstep
The answer often depended on the dynamic, interrelated framework of the general common law. Some scholars have suggested that an officer's suability turned on whether the action was for breach of contract or tort. (42) This framework can provide a somewhat appealing narrative, (43) but even when it yields the right answers, it asks the wrong question. As a result, there are cases where the framework simply lacks explanatory power.
The basic idea behind the distinction is relatively simple. When a state breached a contract, the plaintiff-counterparty had no cause of action against a third-party officer who was not privy to that contract. (44) If the contract was with the state, the only potentially suable defendant was the state. (45) In a tort action, the officer was the actual tortfeasor, not the state. (46) Of course, the officer could point to a statute authorizing his actions, but merely alleging authorization did not excuse a tort; rather, the officer had to produce a constitutional and otherwise valid source of authorization for his actions. The result was, of course, that the officer-defendant could not defend his tortious activities by claiming authorization from an unconstitutional statute. (47) The reason was simple, perhaps simplistic: states cannot pass unconstitutional laws, so when an officer pointed to an unconstitutional law, he was pointing to nothing. These laws could not be recognized as legal defenses, because no governing body was authorized to pass them. (48) Consequently, the officer was left naked against the plaintiff's claims. (49)
The distinction between contracts and torts begins to answer the original jurisdictional question by shifting focus towards the nature of the remedy sought by the plaintiff. State immunity is, if anything, about the formal role of the courts vis-a-vis the sovereign authority of the states.
Contract remedies, so it goes, tend to be the most intrusive. Decrees for specific performance would essentially coerce states into carrying out judicial will. Similarly, damages awards arising from contract claims place courts in the uncomfortable position of overseeing how a state allocates its resources--that is, whether it should spend the next dollar on its police force or fulfilling a debt obligation. By contrast, injunctions against torts such as trespass were minimally intrusive because they could operate against individuals without involving the state. (50) Even tort damages were not intrusive, insofar as they demanded that officers return what they unlawfully took. Unlike tort damages today (which involve emotional and psychological harm), torts then typically involved causes of action such as detinue, the remedy for which was either the return of unlawfully seized property or damages equivalent to the value of that property.
The distinction seems formalistic for a simple reason: it was formalistic. Courts never contended that injunctions against officers had no effect on the state; indeed, they could effectively prohibit states from implementing important policies. (51) But the courts were not trying to discern whom the plaintiff was really suing--nor did immunity jurisprudence busy itself with substantive concerns about facilitating state policymaking. Rather, the Court adopted a formalistic principle to satisfy sovereign immunity concerns: it required that the particular plaintiff could sue the particular defendant (some relevant state officer) without suing the state. (52) This, and not the somewhat anachronistic distinction between torts and contracts, lay at the root of state immunity decisions. The Court did not in any holding base its decision merely on the status of the action as a tort or contract.
While it was typically easier to find individual liability in tort-like actions, many plaintiffs also succeeded in pursuing assumpsit actions against customs officials. (53) Breaches of contract could be actionable if, for example, the breach had a trespassory form. Davis v. Gray is a perfect illustration. There, Texas entered into a contract with a railroad it was incorporating. (54) The railroad would be incorporated and given land on the condition that it develop a railroad across the state--what amounted, in the Court's view, to a vested title subject to condition subsequent. (55) Unfortunately, the plan went awry. The railroad became insolvent and, when progress slowed, Texas state officers began issuing patents to settlers to settle along the railroad's land--this despite a contractual duty to provide the railroad with reasonable time to complete construction. (56) The railroad's receiver sued for an injunction against the issuance of these patents, claiming that they interfered with his ability to sell the land to another railroad in a reasonably timely fashion. (57) In other words, the patents were obnoxious to the contract. The Court had little difficulty affirming a lower court decree in favor of the receiver. (58)
The receiver sued officers as individuals to prevent them from issuing patents that would amount to trespass on the railroad's property. (59) The officers responded by asserting no personal interest in the matter; rather, they were just acting in accordance with state authorization. Consequently, they argued, the suit was one against the state of Texas by Mr. Gray, a citizen of New York, and thus barred by the Eleventh Amendment. (60) In anticipation of this point, the receiver argued that the railroad and the state were parties to a contractual relationship, and any law or order by the state that violated the obligation of this contract was null and void. (61) Because the Court then considered the second law (the one authorizing officers to issue patents) null, all that remained was a contract (which gave title to the railroad) and patents that amounted to trespass on that property. (62)
At the same time, tort-like actions did not always clear the state immunity hurdle. For example, a plaintiff could not avoid sovereign immunity simply by naming the governor as defendant and suing in tort for damages, especially when the monetary damages sought were rightfully possessed by the state treasury. (63) The relevant inquiry remained the same: can this plaintiff sue this defendant without actually suing the state? In Governor of Georgia v. Madrazo, the answer was no. There, a Spanish shipowner's vessel and cargo (slaves) were stolen and, through a complicated set of transactions, ended up in the possession of Georgia, which sold some of the slaves and retained others. (64) Madrazo's libel was dismissed because he sought "money actually in the treasury of the state, mixed up with its general funds" (65)--in other words, there was an issue of sovereign immunity, despite the tort-like nature of the action.
The distinction between torts and contracts no doubt muddies on the margins. While accepting the distinction as a generally useful idea, we can more precisely understand sovereign immunity by placing it in the context of the common law causes of action. This means understanding the common law pleading system.
II. THE COMMON LAW PLEADING SYSTEM
The central goal of this Note is to address the shortcomings of overlooking the common law pleading system. There are three reasons why scholars trying to understand sovereign immunity should be concerned with the mechanics of common law pleading. First, pleading played a central role in the legal system, more so than pleading does today. It follows that we should be sensitive to anachronistically overlooking the nuances and implications of this procedural context. Second, the contracts and torts distinction did not exist in the 19th century with the clarity that it does today. While the distinction certainly existed, (66) there are more fruits to be had by inquiring into the specific causes of action. Third, and most importantly, the mechanics of the pleading system had direct and counterintuitive implications for how courts treated the most important exception to sovereign immunity: officer liability. Consequently, to understand cases like Madrazo--and all nineteenth century sovereign immunity cases--we need to understand the common law pleading system.
Common law pleading was a highly structured, formalistic affair. Courts placed much emphasis on the technicalities of this pleading system and, as a result, much of what we understand as "substance" was bent to the requirements of process. (67)
The plaintiff began his pleading with the declaration. The declaration was set out in the writ, which provided allegations regarding jurisdiction, the facts, and the cause of action. (68) While federal courts only recognize one form of action today, (69) the common law recognized ten: debt, detinue, covenant, special assumpsit, general assumpsit, trespass, trover, replevin, case, and ejectment. (70) The first five were violations of special rights, or rights that existed because the parties entered into special relations. (71) The latter five addressed wrongs that violated original or natural rights, or rights that existed regardless of these relations. (72)
For basically all causes of action, the declaration had two features: a right and a wrong. First, the plaintiff would lay out his right. For example, if the defendant had trespassed onto the plaintiff's land, the plaintiff would first have to show he had title to said land. Second, the plaintiff would explain how the defendant violated that right. No part of the properly pleaded declaration required the plaintiff to address the status of the defendant. The important implication here is simple: if a plaintiff sued an officer, the declaration did not mention the defendant's status as an officer, at least not as a relevant legal fact. On a common law declaration, all defendants, whether officer, doctor, or janitor, were created equal.
The defendant responded to the declaration in one of two ways: a demurrer or a plea. (73) Demurrers raised questions of law, or questions about the sufficiency of a legal claim. (74) Pleas came in many forms, (75) but they all had one thing in common: they raised issues of fact, or presented new matters of fact. (76) Two pleas were particularly relevant to sovereign immunity analysis. First is the plea to the jurisdiction, which was used when the plaintiff commenced his action in the wrong court, either because the court had no subject matter jurisdiction or personal jurisdiction over the parties. Consequently, this plea typically argued that, on such an account, the defendant should not be compelled to plead with regards to the facts. A plea to the jurisdiction was used in the rare cases where the plaintiff sued the state qua state, such as Chisholm v. Georgia. (77) In those cases, the state did not mention...
|
