Keeping the Arms in Touch: Taking Political Accountability Seriously in the Eleventh Amendment Arm-of-the-state Doctrine

• Publication year: 2015

Keeping the Arms in Touch: Taking Political Accountability Seriously in the Eleventh Amendment Arm-of-the-State Doctrine

Jameson B. Bilsborrow

KEEPING THE ARMS IN TOUCH: TAKING POLITICAL ACCOUNTABILITY SERIOUSLY IN THE ELEVENTH AMENDMENT ARM-OF-THE-STATE DOCTRINE^†

ABSTRACT

The Eleventh Amendment to the United States Constitution embodies the principle of state sovereign immunity, long held to bar suits by private litigants in federal courts or under federal law who seek redress for rights violations at the hands of state governments. But states themselves are not the only prospective defendants shielded by this form of sovereign immunity. As a subset of Eleventh Amendment jurisprudence, the arm-of-the-state doctrine allows government entities closely situated to their respective state governments to partake of the state's Eleventh Amendment sovereign immunity. Unfortunately, this doctrine, both in theory and in application, has been fraught with inconsistency and incoherence since the Supreme Court introduced it in 1977.

In its 1994 decision, Hess v. Port Authority Trans-Hudson Corporation, the Court offered some guiding rationales to assist the lower federal courts in conducting their arm-of-the-state analyses. The Court directed federal courts to analyze the status of state government entities in light of the twin reasons for sovereign immunity: protection of both the state's treasury and the state's dignity. While these twin reasons were intended to aid courts in applying the various factors of their arm-of-the-state tests, unfortunately—like the jurisprudence that preceded it—the Hess precedent has proven to be minimally effective.

As a solution, this Comment argues that, rather than the rationales previously offered by the Court, a political accountability rationale ought to guide the arm-of-the-state inquiry. This rationale has been present in the Court's sovereign immunity jurisprudence generally but has yet to be substantially incorporated in the arm-of-the-state context. By assessing factors that evaluate the degree to which a state's interests sufficiently coincide with an entity's affairs as well as the degree to which a state exercises sufficient

[Page 820]

control over an entity, courts may better gauge whether a given entity is politically accountable to the state. Thus, courts can ensure that government entities held to partake of their state's sovereign immunity likewise are accountable to the same democratic forces that justify and check states' own assertions of sovereign immunity. Incorporating such a rationale will more effectively preserve the integrity of the democratic process in our federal system.

Introduction..............................................................................................821

I. Background: The Enduring Enigma of the Arm-of-the-State Doctrine.........................................................824
II. Pulling Apart the Arms (Doctrine): Why Hess's Twin Reasons are Incomplete................................................................830

A. Reason One: Protecting the State's Treasury—Direct Blows, Ripple Effects, and All Shades in Between ................................ 830
B. Reason Two: Protecting the State's Dignity—Whatever that Means ........................................................................................ 834
C. The Twin Reasons' Twin Problems: Flawed Theory Produces Flawed Application ................................................................... 837

III. Connecting the Dots of Political Accountability: From Eleventh Amendment Jurisprudence Generally to the Arm-of-the-State Doctrine Specifically..................................839

A. Political Process in Sovereign Immunity Jurisprudence........... 839
B. The Importance of Political Accountability in Hess.................. 844

IV. A Proposed Political-Accountability-Inspired Arm-of-the-State Framework.....................................................847

A. A Threshold Inquiry: Identifying the Real Entity to Be Examined ................................................................................... 847
B. State Interest Factors ................................................................ 849

1. Entity's Effect on State Treasury......................................... 849
2. Entity's Geographic or Jurisdictional Reach ...................... 851

C. State Control Factors ................................................................ 852

1. State Removal Power........................................................... 853
2. State General Veto Power ................................................... 854

V. A Critique of Currently Used Arm-of-the-State Factors .... 855

A. Factors Attempting to Gauge State Intent ................................. 855
B. Factors that are Inherently Definitional.................................... 858
C. Factors that Otherwise Fail to Gauge Political Accountability ............................................................................ 860

[Page 821]

VI. Testing a Political-Accountability-Inspired Arm-of-the-State Framework.....................................................861

A. The Fifth Circuit's Analysis of King.......................................... 861
B. Critique of the Fifth Circuit's Arm-of-the-State Analysis.......... 864
C. King in Light of this Comment's Proposed Framework: A Different Result? ........................................................................ 864

Conclusion..................................................................................................867

Introduction

What do a county sheriff, a public school district, and a state lottery commission all have in common? They are arms of the state and immune from suit under Eleventh Amendment state sovereign immunity¹ jurisprudence.² What else do a county sheriff, a public school district, and a state lottery commission all have in common? They are not arms of the state and therefore not immune from suit under Eleventh Amendment state sovereign immunity jurisprudence.³ At first blush, such blatant contradiction seems puzzling to say the least; unfortunately a closer examination of the decisions applying this doctrine, rather than revealing nuance and sophistication, simply exposes a muddled mess.

Eleventh Amendment state sovereign immunity shields states from private suits for money damages in federal court or under federally-created claims unless a state voluntarily waives its immunity or Congress validly abrogates it. A doctrine has evolved whereby arms of the state—entities situated sufficiently close to the state so as to, in effect, be part of the state itself—are likewise immune.⁴ Federal courts⁵ have recognized various government entities as arms in their respective states, from state universities⁶ and lottery

[Page 822]

commissions⁷ to public school districts⁸ and county sheriffs⁹ or even government contractors¹⁰ in rare instances,¹¹ but on the other end of the spectrum, courts consistently recognize that political subdivisions, such as cities and counties, are not arms of the state.¹² To determine whether an entity is an arm of the state, federal courts typically engage in fact-intensive, multifactor inquiries guided by various rationales.

Arm-of-the-state analysis is complicated by the fact that in recent decades, state and local government structures have evolved considerably. Increasingly specialized government entities offer a variety of public services beyond classic core governmental functions, and government has grown while simultaneously becoming more fragmented through privatization, revenue sharing, and decentralization.¹³ These processes have produced a limitless variety of government entities, and when litigants sue such entities, courts must decide whether these entities are arms of the state.

The supreme court has never offered an authoritative, systematic framework or test for conducting this arms inquiry. The circuit courts have instead crafted widely divergent tests, incorporating different factors and considerations into their analyses. The supreme court has articulated a few rationales to guide lower courts, but even these rationales have proved ineffective in generating consistency or coherence among the lower courts.¹⁴

Missing from the jurisprudential and scholarly dialogue is any developed appreciation for the role democratic processes and political accountability ought to play in the arm-of-the-state context. The court has endeavored to stress the importance of these mechanisms in its Eleventh Amendment jurisprudence generally, as both a justification for and a logical corollary of

[Page 823]

sovereign immunity, but the Court has only touched in passing on the importance of political accountability in its arm-of-the-state cases.

This Comment argues that federal courts should take political accountability seriously in the Eleventh Amendment arm-of-the-state context to ensure that those entities that are to be cloaked in the state's sovereign immunity are likewise subject to the same forces of political accountability to which the state is itself subject. Courts can do this by ensuring, first, that the state's interests sufficiently coincide with a given entity's affairs such that the statewide electorate would be in a position to care about the entity's conduct or policies, and second, that the state exercises the kind of control over an entity to be able to hold that entity accountable. Accordingly, courts should assess factors that meaningfully gauge these two elements and disregard those factors that do not.

Taking political accountability seriously in the arm-of-the-state context would not necessarily ensure uniformity in the circuits' tests—only an authoritative test handed down by the Supreme Court might accomplish that. Case law may still produce facially inconsistent results where a type of entity may be recognized as an arm in one state but not in another depending on the...