Clarifying the Boundaries of Eleventh Amendment Immunity

• Publication year: 1998
• Pages: 51
• Citation: Vol. 27 No. 12 Pg. 51

27 Colo.Law. 51 Colorado Lawyer 1998.

1998, December, Pg. 51. Clarifying the Boundaries of Eleventh Amendment Immunity

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51

Vol. 27, No. 12, Pg. 51

The Colorado Lawyer
December 1998
Vol. 27, No. 12 [Page 51]

Specialty Law Columns
Government and Administrative Law News
Clarifying the Boundaries of Eleventh Amendment Immunity
by Deb Asimus, Michelle Reese

The Eleventh Amendment to the U.S. Constitution1 precludes federal jurisdiction over suits by a citizen against a state whether in law or equity, including suits requesting injunctive relief.2 Because of the Eleventh Amendment, a state can be sued on a federal claim only if it waives its immunity or if Congress clearly eliminates or "abrogates" that immunity based on authority from another part of the Constitution. For example, the Fourteenth Amendment allows Congress to abrogate Eleventh Amendment immunity for violations of certain constitutional rights by states.3

Until recently, the Commerce Clauses also could serve as bases for Congressional abrogation of a state's immunity.4 In Seminole Tribe v. Florida,5 however, the Supreme Court held that the Indian Commerce Clause did not give Congress authority to abrogate a state's immunity.6 The Indian Commerce Clause and the Interstate Commerce Clause are nearly identical, so laws passed under the Interstate Commerce Clause are affected by Seminole Tribe's holding.7 Because many federal laws are passed pursuant to the Commerce Clauses, the holding of Seminole Tribe makes a broad range of federal law unenforceable against states, and the question of which state-created entities are covered by Eleventh Amendment immunity has increased in importance

Background

The Eleventh Amendment's simple language hides a complicated question: what is a "state" The easy answer would have been that all state-created entities enjoy Eleventh Amendment immunity, so any federal claim by a citizen against any state entity would be precluded.8 In fact, though, many state entities are not covered by the Eleventh Amendment. While immunity does extend to entities created by a state government that act as the state's alter ego or instrumentality ("arm of the state" is the applicable term of art),9 a state's immunity does not extend to political subdivisions of the state such as counties or municipalities.10

The limits are black and white: a state itself cannot be sued; counties and municipalities can be. The gray area between, though, includes numerous entities that may or may not be "arms of the state." Is a board of education an arm of the state Is a transportation district such as RTD immune What about a university medical center

Numerous similar but slightly different tests have been used to define the gray area.11 Four recent cases in this jurisdiction have detailed the factors Colorado litigators must consider: Elam Construction v. RTD,12 Duke v. Grady Municipal Schools,13 Simon v. State Compensation Insurance Authority,14 and Graham v. State of Colorado.15 The remainder of this article briefly explains the facts and holdings of those cases, then synthesizes the standards applied and lists questions to help determine whether an entity is an arm of the state. Although Eleventh Amendment immunity issues arise most commonly in employment law cases and civil rights cases attorneys representing either state entities or clients with federal claims against state entities in areas as diverse as environmental law, natural resources, tax law, bankruptcy, and intellectual property must understand the limits of the immunity granted by the Amendment.

Only the immunity of state entities, not state officials, is analyzed here. A different set of questions applies when state officials are sued in their official or personal capacities, and excellent resources on this topic are available elsewhere.16 A detailed explanation of the Colorado Governmental Immunity Act ("CGIA")17 also is beyond the scope of this article.18 Be aware, however, that immunity from state law claims under the CGIA is not the same as immunity under the Eleventh Amendment. CGIA immunity is not limited to arms of the state, but covers a broader range of entities. Because of these differences, an entity may be immune from state claims under the CGIA but still be subject to suit for violations of federal law.19 For example, cities and counties are covered by the CGIA but are not immune from suit under the Eleventh Amendment.20 Litigators must consider both types of immunity.

Recent Cases

The Elam Decision

In Elam, the plaintiffs claimed that an RTD resolution prohibiting RTD from entering into contracts with persons or businesses who donated more than $100 to...