4.

Eleventh Amendment Immunity

The Eleventh Amendment of the United States Consti

tution 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.

in

Although the Eleventh Amendment specifically bars only suits against states by citizens of other states, Hans v. Louisiana, 134 U.S. 1, 10 S. Ct. 504, 33 L.Ed. 842 (1890), the Supreme Court held that states are also immune from suits by their own citizens. The Court noted that the Eleventh Amendment was adopted in response to its holding in Chisholm v. Georgia, 2 Dall. 419 (1793), that a state was liable to suit by a citizen of another state. In describing the reaction to that decision the Court stated:

a shock of surprise throughout
the country that, at the first
meeting of Congress thereafter,
the Eleventh Amendment to the
Constitution was almost unani-
mously proposed, and was in due
course adopted by the legislatures
of the States. This amendment,
expressing the will of the ultimate
sovereignty of the whole country,
superior to all legislatures and
all courts, actually reversed the
decision of the Supreme Court.
It did not in terms prohibit
suits by individuals against
the States, but declared that
the Constitution should not be
construed to import any power to
authorize the bringing of such
suits. . . The Supreme Court
had construed the judicial
power as extending to such a
suit, and its decision was thus
overruled.

134 U.S. at 11, 10 S. Ct. at 505-06, 33 L.Ed. at 846.
The Court noted that the Eleventh Amendment revealed
Congress' agreement with Justice Iredell's dissent in
Chisholm in which he contended that the Constitution's
grant of judicial power did not "create new and unheard
of remedies by subjecting sovereign states to actions
at the suit of individuals." 134 U.S. at 12, 10 S.Ct.
at 506, 33 L.Ed. at 846. Questioning its decision in
Chisholm, the Court stated:

Looking back from our present standpoint at the decision in Chisholm v. Georgia, we do not greatly wonder at the effect which it had upon the country. Any such power as that of authorizing the federal judiciary to entertain suits by individuals against the States, had been expressly disclaimed, and even resented, by the great defenders of the Constitution whilst it was on its trial before the American people.

134 U.S. at 12, 10 S.Ct. at 506, 33 L.Ed. at 846. The
Court thereupon decided that the view of Justice Iredell,
that the judicial power of the United States did not
extend to actions by a citizen against either his own
state or another state, was correct. The Court stated:
"The suability of a State without its consent was
thing unknown to the law." 134 U.S. at 16, 10 S.Ct.
at 507, 33 L.Ed. at 847. It concluded: "The truth is,
that the cognizance of suits and actions unknown to the
law, and forbidden by the law, was not contemplated by
the Constitution when establishing the judicial power
of the United States." 134 U.S. at 15, 10 S.Ct. at
507, 33 L. Ed. at 847.

Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) held that the Eleventh Amendment does not prevent a federal court from enjoining a state official from enforcing a state statute which violates the Federal Constitution. The Court stated:

[I]ndividuals, who as officers of
the State, are clothed with some
duty in regard to the enforcement
of the laws of the State, and who
threaten and are about to commence
proceedings, either of a civil or
criminal nature, to enforce against

parties affected an unconstitutional act, violating the Federal Constitution, may be enjoined by a Federal court of equity from such action.

209 U.S. at 155-56, 28 S.Ct. at 452, 52 L.Ed. at 727. The Court further stated:

In making an officer of the State a party defendant in a suit to enjoin the enforcement of an act alleged to be unconstitutional it is plain that such officer must have some connection with the enforcement of the act, or else it is merely making him a party as a representative of the State, and thereby attempting to make the State a party.

The fact that the

state officer by virtue of his office has some connection with the enforcement of the act is the important and material fact, and whether it arises out of the general law, or is specifically created by the act itself, is

not material so long as it exists.

209 U.S. at 157, 28 S.Ct. at 453, 52 L.Ed. at 728. The continuing validity of Ex parte Young was recognized in the more recent case of Edelman v. Jordan, 415 U.S. 651, 664, 94 S. Ct. 1347, 1356, 39 L. Ed. 2d 662, 673 (1974), in which the Supreme Court distinguished the award of prospective equitable relief, such as an injunction against a state official, from a retroactive award of money damages which will of necessity be paid from state funds. The Supreme Court approved the award of prospective injunctive relief against the state officials but reversed the retroactive award of money 280 damages. The Court recognized that an action may be

280. That case was an action challenging the state officials' administration of the federal-state programs of Aid to the Aged, Blind and Disabled in a manner inconsistent with federal regulations and the Constitution. The defendants were charged with delay in processing applications, in violation of the federal regulations, and in "improperly authorizing grants to commence

barred by the Eleventh Amendment even if the state is not named as a party to the action, if the judgment will have to be paid from public funds in the state treasury. 415 U.S. at 663, 94 S. Ct. at 1355, 39 L.Ed. 2d at 673.

Moving to the question of waiver the Court found that the state had not "constructively consented" to be sued by participating in the federal program. Court stated:

The

415 U.S. at 673, 94 S. Ct. at 1360-61, 39 L. Ed. 2d at 678.

Finally, the Court found that the Eleventh Amendment is a jurisdictional bar and failure to raise it in the trial court did not constitute waiver. 281

only with the month in which an application was approved and not including prior eligibility months for which an applicant was entitled to aid under federal law," 415 U.S. at 655, 94 S.Ct. at 1352, 39 L. Ed. 2d at 668. The Supreme Court upheld the district court's grant of a permanent injunction requiring compliance with the federal time limits but reversed the judgment ordering the state officials to "release and remit AABD benefits wrongfully withheld to all applicants for AABD in the State of Illinois who applied between July 1, 1968, and April 16, 1971." 415 U.S. at 656, 94 S. Ct. at 1352, 39 L.Ed.2d at 669.

281. Accord, McDonald v. State of Illinois, 557 F.2d 596, 601 (7th Cir. 1977), cert. denied. See also Jacobson v. Tahoe Regional Planning Agency, 558 F.2d 928 (9th Cir. 1977); Nadeau v. Helgemoe, 561 F.2d 411, 419, n. 7 (1st Cir. 1977). Procurement of appropriate liability insurance may constitute waiver. Keve, 571 F.2d 158, 163-64 (3d Cir. 1978). Federal law is

West v.

Subsequently, Quern v. Jordan,

S.Ct.

L. Ed. 2d

U.S. 47 U.S.L.W. 4261 (March 5, 1979) held that Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L. Ed. 2d 611 (1978) does not abrogate the Eleventh Amendment immunity of the states, but the Eleventh Amendment was not violated by an order requiring state officials to send members of the plaintiff class an explanatory notice advising them of state administrative procedures available by which they could receive a determination of whether they were entitled to past welfare benefits.

Edelman was followed in the Third Circuit by Rochester v. White, 503 F.2d 263 (1974), in which the court reversed the district court's grant of defendant's motion for summary judgment. Plaintiffs were challenging the defendant administrator's reduction in social security benefits under Delaware's Aid to Families with Dependent Children (AFDC) public assistance program and requested both prospective declaratory and injunctive relief and retroactive money damages. The defendant moved for partial summary judgment, alleging that the Eleventh Amendment barred retroactive monetary relief. The district court granted a complete summary judgment for the defendant, holding that the defendant, as a representative of the state, was not a "person" under section 1983. The court of appeals reversed, with respect to the absence of declaratory judgment jurisdiction, holding that the defendants were "persons" within the meaning of section 1983 and that the Eleventh Amendment did not bar prospective relief. The court stated:

Following the reasoning of Ex parte Young, 209 U.S. 123 (1908): The Eleventh Amendment does not prevent a "federal court from directing a state official to bring his conduct into conformity with federal law"

In light of these cases, the

trial court's denial of jurisdiction

applied to determine whether there is a waiver. Jacobson,

558 F.2d at 940. A waiver was found in failure to raise Eleventh Amendment immunity before the district court and failure to

appeal judgment. Vecchione v. Wohlgemuth, 558 F.2d 150, 158-59 (3d Cir. 1977), cert. denied.