Lapides: Striking a Balance Between State Sovereignty and Fairness to Individual Litigants? - Shannon Sheppard

• Publication year: 2003

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Lapides: Striking a Balance Between

State Sovereignty and

Fairness to Individual Litigants?

In Lapides v. Board of Regents of the University System of Georgia,¹ the United States Supreme Court held that a state waives its Eleventh Amendment immunity by consenting to removal of the case to federal court, but only for state law claims to which the state had explicitly waived its immunity from state court proceedings.² This decision was quite unexpected in the wake of recent Supreme Court decisions supporting federalism and reinvigorating the doctrine of sovereign immunity.

I. Factual Background

Paul Lapides is a tenured professor and the Director of the Corporate Governance Center at Kennesaw State University ("KSU"), which is part of the State University System of Georgia. After a student accused Lapides of sexual harassment, the university conducted an investigation. The investigation produced no evidence to support the accusation, so no action was taken against Lapides. University officials, however, allegedly placed letters about the accusations in Lapides's personnel file. Lapides felt these letters interfered with his chances for promotion to other university positions.³

Lapides filed suit in the Superior Court of Cobb County, Georgia, naming the Board of Regents of the University System of Georgia ("Georgia" or "State") and three KSU administrators as defendants. The lawsuit alleged that the actions of the KSU officials deprived Lapides of his right to due process of the law in violation of the Fourteenth Amendment. Lapides sought compensatory and punitive damages under the Georgia Tort Claims Act⁴ and 42 U.S.C. Sec. 1983.⁵ On behalf of all defendants, the Georgia Attorney General filed a Notice of Removal in the United States District Court for the Northern District of Georgia based on federal question jurisdiction over the Sec. 1983 claims.⁶ At the same time, Georgia filed a motion to dismiss the complaint in federal court under Federal Rule of Civil Procedure 12(b)(6).⁷ The individual defendants claimed that "qualified immunity" barred the Sec. 1983 claims against them. Georgia conceded that a state statute waived its sovereign immunity from suits under state law in state court, but claimed that it was immune from suit in federal court pursuant to the Eleventh Amendment.⁸

The district court denied the state's motion to dismiss, holding that the state had waived its Eleventh Amendment immunity by removing the case to federal court. The court found that removal to federal court by a state official was litigation conduct constituting a valid waiver, regardless of whether the state official had the constitutional or statutory authority to waive Eleventh Amendment immunity.⁹ Georgia filed an interlocutory appeal from the Eleventh Amendment ruling.¹⁰ The United States Court of Appeals for the Eleventh Circuit reversed, holding that Georgia retained its Eleventh Amendment immunity even after the case was removed to federal court.¹¹ The court based its holding on the conclusion that the attorney general did not have the legal authority to waive the state's immunity.¹²

The United States Supreme Court granted Lapides's petition for certiorari "to decide whether 'a state waives its Eleventh Amendment immunity by its affirmative litigation conduct when it removes a case to federal court.'"¹³ The Court first held that there was no valid federal claim against the state because Lapides's Sec. 1983 claim sought monetary damages and the state is not a "person" from whom money damages can be collected.¹⁴ Therefore, the Court limited its discussion to the state law claims for which the state had waived its immunity from state court suits.¹⁵ In a unanimous decision reversing the ruling of the Eleventh Circuit, the Supreme Court held that a state's removal of a case to federal court is a voluntary invocation of federal jurisdiction sufficient to waive the state's Eleventh Amendment immunity.¹⁶

II. LEGAL BACKGROUND

The Eleventh Amendment provides, "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."¹⁷ Congress passed this amendment to overrule the Supreme Court's decision in Chisholm v. Georgia,¹⁸ in which the Court held that sovereign immunity did not protect Georgia in a suit brought by a South Carolina resident.¹⁹ This decision created "such a shock of surprise throughout the country that [Congress] . . . almost unanimously proposed" the Eleventh Amendment.²⁰

Since its inception, courts have expanded the principle of state sovereign immunity and interpreted the Eleventh Amendment as a limit on federal jurisdiction under Article III. In Hans v. Louisiana,²¹ the Supreme Court held that states were immune from suits brought by their citizens,²² even though the Eleventh Amendment only expressly prohibits suits against a state "commenced . . . by Citizens of another State, or by Citizens or Subjects of any Foreign State."²³

A. Congressional Abrogation ofImmunity under the Fourteenth Amendment

Recent Eleventh Amendment jurisprudence has focused on the congressional abrogation exception to the Eleventh Amendment's prohibition of federal court suits against states: Congress may authorize suits against states pursuant to its power to enforce the Fourteenth Amendment.²⁴ The Supreme Court first applied this exception in Fitzpatrick v. Bitzer²⁵ in 1976.²⁶ There, state employees sued the state for violation of Title VII of the Civil Rights Act of 1964.²⁷ Congress enacted Title VII pursuant to its power under Section 5 of the Fourteenth Amendment.²⁸ The Court relied on Ex parte Virginia²⁹ for the rule that congressional enforcement of the Fourteenth Amendment pursuant to Section 5 is "'no invasion of State sovereignty.'"³⁰ Therefore, Congress has the authority to require states to be amenable to suit for violations of Title VII.³¹

In 1999 the Court in College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board³² reaffirmed Congress's authority to abrogate state sovereign immunity pursuant to its Section

5 power to enforce the Fourteenth Amendment.³³ College Savings Bank argued that Florida's sovereign immunity was abrogated because Congress enacted the Trademark Remedy Clarification Act to allow suits against states under the Lanham Act and to remedy "state deprivations without due process of two species of 'property' rights: (1) a right to be free from a business competitor's false advertising about its own product, and (2) a more generalized right to be secure in one's business inter-ests."³⁴ Finding that neither right qualified as a property right protected by the Due Process Clause,³⁵ the Court held that Florida's sovereign immunity was not abrogated.³⁶

The next year, in Kimel v. Florida Board ofRegents,³⁷ the Supreme Court granted certiorari to resolve the conflict among the lower courts over whether the Age Discrimination in Employment Act³⁸ ("ADEA") abrogates state Eleventh Amendment immunity.³⁹ The Court first held that the language of the ADEA expressed Congress's unequivocal intent to abrogate state immunity by clearly providing for suits against states.⁴⁰ The Court, however, held that "the ADEA is not a valid exercise of Congress'[s] power under [Section] 5 of the Fourteenth Amendment" because the ADEA prohibits substantially more conduct than would likely be deemed unconstitutional and because Congress provided no evidence of widespread and unconstitutional age discrimination by states.⁴¹ Therefore, because only Congress's Article I commerce power validated the ADEA, a divided Court concluded that the ADEA does not abrogate state sovereign immunity.⁴²

In 2001 the Court in Board of Trustees ofthe University ofAlabama v. Garrett⁴³ addressed an issue very similar to the issue in Kimel: whether Title I of the Americans with Disabilities Act⁴⁴ ("ADA") abrogates state sovereign immunity for federal court suits brought by individuals for money damages.⁴⁵ Like in Kimel, a divided Court held that although the language of the statute clearly expressed congressional intent to abrogate state sovereign immunity, such purported abrogation was invalid because Title I of the ADA is not appropriate Section 5 legislation.⁴⁶

B. Waiver ofImmunity by State Consent

1. Litigation Conduct. Early in Eleventh Amendment jurisprudence, the Supreme Court held that a state's immunity from suit "is a personal privilege which [the state] may waive at pleasure."⁴⁷ The first cases finding waiver of state sovereign immunity involved the voluntary intervention of the state in a suit. In Clark v. Barnard,⁴⁸ Rhode Island voluntarily appeared as an intervenor in a bill in equity to claim money owed on a construction bond.⁴⁹ The Court held that by presenting a claim against the fund in federal court, the state "made itself a party to the litigation to the full extent required for its complete determination" and thereby waived its Eleventh Amendment immunity.⁵⁰

In Gunter v. Atlantic Coast Line Railroad,⁵¹ the Court relied on its reasoning from Clark to hold that "where a State voluntarily becomes a party to a cause and submits its rights for judicial determination, it will be bound thereby and cannot escape the result of its own voluntary act by invoking the prohibitions of the Eleventh Amendment."⁵² In Gunter, suit was brought against county officials to enjoin the collection oftaxes. Pursuant to a state statute, the county officials were required to defend the suit to protect the interests of the state.⁵³ The Court held that the attorney general's appearance to defend the right of the state to collect taxes was a voluntary appearance "for and in behalf of the State" that waived the state's Eleventh Amendment immunity.⁵⁴

Nearly forty years later, the Supreme Court departed from its reasoning in Clark and Gunter.⁵⁵ In Ford Motor Co....