Constitutional Law
Apr. 17, 2001
Local Position
One of the most dramatic changes in the law in recent years has been the U.S. Supreme Court's significant expansion in state sovereign immunity. The court's most recent ruling on Feb. 21, in Board of Trustees of the University of Alabama v. Garrett, 121 S.Ct. 955 (2001), held that state governments may not be sued for employment discrimination in violation of Title I of the Americans with Disabilities Act.
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
By Erwin Chemerinsky
One of the most dramatic changes in the law in recent years has been the U.S. Supreme Court's significant expansion in state sovereign immunity. The court's most recent ruling on Feb. 21, in Board of Trustees of the University of Alabama v. Garrett, 121 S.Ct. 955 (2001), held that state governments may not be sued for employment discrimination in violation of Title I of the Americans with Disabilities Act.
This is the latest in a series of decisions that have accorded state governments broad immunity from suit in federal and state courts. In 1999, the court ruled that state governments may not be sued for patent infringement. Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627 (1999).
In 2000, the court held that state governments may not be sued for violating the Age Discrimination in Employment Act. Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000).
Also and quite importantly, in Alden v. Maine, 527 U.S. 706 (1999), the court held that state governments may not be sued in state court without their consent to enforce federal laws.
An extremely important issue, now being litigated in countless cases, concerns the circumstances under which local governments can claim to be protected by state sovereign immunity. The court long has held that the 11th Amendment and sovereign immunity do not bar suits against municipalities or political subdivisions of a state. See, e.g., Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977); Lincoln County v. Luning, 133 U.S. 529 (1890).
The ability to sue local governments in federal court is significant because it is this level of government that provides most social services in this country, such as police and fire protection, education and sanitation. Therefore, if the 11th Amendment barred suits against municipalities, federal courts could not ensure compliance with the Constitution by those who are most likely to violate it.
However, in recent years, the court has created a way for local governments, in certain circumstances, to claim to be part of the state and, thus, be protected by state sovereign immunity. The key case is McMillian v. Monroe County, 520 U.S. 781 (1997). In McMillian, the court held that a county sheriff in Alabama is a state official, not a local official, and therefore, is not a final decisionmaker for the local government.
Walter McMillian was convicted of murder and spent six years on death row in Alabama. After the Alabama Supreme Court reversed his conviction and ordered his release, McMillian brought a 42 U.S.C. Section 1983 action against the county and county sheriff, alleging that his constitutional rights were violated by the sheriff's intimidating witnesses into making false statements and suppressing exculpatory evidence. McMillian claimed that the county was liable because the sheriff had final decisionmaking authority for the acts taken.
The Supreme Court, in a 5-4 decision, ruled that under Alabama law, the county sheriff was acting as a state official and, thus, was not a policymaker for the county. In Alabama, the sheriff is elected locally by the voters in each county and is paid and equipped with county funds. Moreover, the sheriff's authority exists only within the borders of the county. Nonetheless, the court affirmed the 11th Circuit's holding that under Alabama law, "a sheriff acting in his law enforcement capacity is not a policymaker for the county."
Chief Justice William H. Rehnquist, writing for the court, stressed that the Alabama Constitution designates the sheriff as exercising the executive power of the state. Additionally, the sheriff enforces state law and can be removed from office only the Alabama Supreme Court. The court concluded that "Alabama sheriffs, when executing their law enforcement duties, represent the State of Alabama, not their counties."
McMillian did not involve the 11th Amendment and sovereign immunity; it posed the question of whether the Alabama County sheriff is the final decisionmaker for the local government for purposes of creating municipal liability under Section 1983. However, it has obvious and important 11th Amendment implications: If the county sheriff is a state official, then all of the protections of the 11th Amendment apply.
Moreover, other county officials besides sheriffs, such as coroners and educators, might be regarded as state officers under McMillian because they implement state law and are regarded as carrying out state policy.
The Supreme Court has not returned to the issue in the four years since McMillian, but the decision has produced a flurry of lower court opinions. The key inquiry in each case is whether, under state law, the official is to be regarded as being part of the state government.
There have been two major 9th Circuit rulings. In Freeman v. Oakland Unified School District, 175 F.3d 846 (9th Cir. 1999), the 9th Circuit held that a suit against a local school district in California is a suit against a state agency for 11th Amendment purposes and thus barred. In other words, local school boards in California no longer can be named as defendants in federal court.
School-board members are elected locally. City charters, such as the charter in Los Angeles, prescribe the size of the school board, the manner of election and the salary for members. Yet, the 9th Circuit ruled that school boards are arms of the state because the offices are created by state law and because most education law is at the state level. It should be emphasized that individual members of the school boards still may be named as defendants, but no longer can the boards of education themselves be sued.
In contrast, in Streit v. County of Los Angeles, 236 F.3d 552 (9th Cir. 2001), the 9th Circuit ruled that county sheriffs in California are local government officials and not a part of the state. The 9th Circuit said that in determining whether a government agency is an "arm of the state," five factors should be considered: whether a money judgment would be satisfied out of state funds, whether the entity performs central governmental functions, whether the entity may sue or be sued, whether the entity has the power to take property in its own name or only in the name of the state, and what the corporate status of the entity is.
The 9th Circuit said that the first factor is the most important in identifying "the arm of the state." The court concluded that the county of Los Angeles, and not the state of California, is liable for the Los Angeles sheriff's actions. Additionally, the 9th Circuit carefully reviewed California law and expressly distinguished McMillian. Thus, in California, county sheriffs are part of local governments and there is no sovereign-immunity bar to suits.
These two recent 9th Circuit decisions, of course, leave open the issue as to what other local government functions might be deemed part of the state. For example, should district attorneys be deemed to be part of local governments or part of the state? Compare McClendon v. May, 37 F. Supp.3d 1371 (S.D. Ga. 1999) (district attorneys in Georgia are state officials), with Hudson v. City of New Orleans, 174 F.3d 677 (5th Cir. 1999) (county district attorney's office in Louisiana is not arm of state and is thereby entitled to 11th Amendment immunity).
Are county coroners part of local governments or the state? See, e.g., Brotherton v. Cleveland, 173 F.3d 552 (6th Cir. 1999) (county coroner could not assert 11th Amendment immunity because office is municipal, not state). Each office will need to be litigated separately.
The issue is of vital importance because of the broad protections sovereign immunity accords to state governments. A key question in the years ahead will be the extent to which the Supreme Court, as part of its expansion in state sovereign immunity, accords it to local governments.
Erwin Chemerinsky is Sydney M. Irmas Professor of Public Interest Law, Legal Ethics and Political Science at the University of Southern California Law School. Amy Kreutner helped research this article.
One of the most dramatic changes in the law in recent years has been the U.S. Supreme Court's significant expansion in state sovereign immunity. The court's most recent ruling on Feb. 21, in Board of Trustees of the University of Alabama v. Garrett, 121 S.Ct. 955 (2001), held that state governments may not be sued for employment discrimination in violation of Title I of the Americans with Disabilities Act.
This is the latest in a series of decisions that have accorded state governments broad immunity from suit in federal and state courts. In 1999, the court ruled that state governments may not be sued for patent infringement. Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627 (1999).
In 2000, the court held that state governments may not be sued for violating the Age Discrimination in Employment Act. Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000).
Also and quite importantly, in Alden v. Maine, 527 U.S. 706 (1999), the court held that state governments may not be sued in state court without their consent to enforce federal laws.
An extremely important issue, now being litigated in countless cases, concerns the circumstances under which local governments can claim to be protected by state sovereign immunity. The court long has held that the 11th Amendment and sovereign immunity do not bar suits against municipalities or political subdivisions of a state. See, e.g., Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977); Lincoln County v. Luning, 133 U.S. 529 (1890).
The ability to sue local governments in federal court is significant because it is this level of government that provides most social services in this country, such as police and fire protection, education and sanitation. Therefore, if the 11th Amendment barred suits against municipalities, federal courts could not ensure compliance with the Constitution by those who are most likely to violate it.
However, in recent years, the court has created a way for local governments, in certain circumstances, to claim to be part of the state and, thus, be protected by state sovereign immunity. The key case is McMillian v. Monroe County, 520 U.S. 781 (1997). In McMillian, the court held that a county sheriff in Alabama is a state official, not a local official, and therefore, is not a final decisionmaker for the local government.
Walter McMillian was convicted of murder and spent six years on death row in Alabama. After the Alabama Supreme Court reversed his conviction and ordered his release, McMillian brought a 42 U.S.C. Section 1983 action against the county and county sheriff, alleging that his constitutional rights were violated by the sheriff's intimidating witnesses into making false statements and suppressing exculpatory evidence. McMillian claimed that the county was liable because the sheriff had final decisionmaking authority for the acts taken.
The Supreme Court, in a 5-4 decision, ruled that under Alabama law, the county sheriff was acting as a state official and, thus, was not a policymaker for the county. In Alabama, the sheriff is elected locally by the voters in each county and is paid and equipped with county funds. Moreover, the sheriff's authority exists only within the borders of the county. Nonetheless, the court affirmed the 11th Circuit's holding that under Alabama law, "a sheriff acting in his law enforcement capacity is not a policymaker for the county."
Chief Justice William H. Rehnquist, writing for the court, stressed that the Alabama Constitution designates the sheriff as exercising the executive power of the state. Additionally, the sheriff enforces state law and can be removed from office only the Alabama Supreme Court. The court concluded that "Alabama sheriffs, when executing their law enforcement duties, represent the State of Alabama, not their counties."
McMillian did not involve the 11th Amendment and sovereign immunity; it posed the question of whether the Alabama County sheriff is the final decisionmaker for the local government for purposes of creating municipal liability under Section 1983. However, it has obvious and important 11th Amendment implications: If the county sheriff is a state official, then all of the protections of the 11th Amendment apply.
Moreover, other county officials besides sheriffs, such as coroners and educators, might be regarded as state officers under McMillian because they implement state law and are regarded as carrying out state policy.
The Supreme Court has not returned to the issue in the four years since McMillian, but the decision has produced a flurry of lower court opinions. The key inquiry in each case is whether, under state law, the official is to be regarded as being part of the state government.
There have been two major 9th Circuit rulings. In Freeman v. Oakland Unified School District, 175 F.3d 846 (9th Cir. 1999), the 9th Circuit held that a suit against a local school district in California is a suit against a state agency for 11th Amendment purposes and thus barred. In other words, local school boards in California no longer can be named as defendants in federal court.
School-board members are elected locally. City charters, such as the charter in Los Angeles, prescribe the size of the school board, the manner of election and the salary for members. Yet, the 9th Circuit ruled that school boards are arms of the state because the offices are created by state law and because most education law is at the state level. It should be emphasized that individual members of the school boards still may be named as defendants, but no longer can the boards of education themselves be sued.
In contrast, in Streit v. County of Los Angeles, 236 F.3d 552 (9th Cir. 2001), the 9th Circuit ruled that county sheriffs in California are local government officials and not a part of the state. The 9th Circuit said that in determining whether a government agency is an "arm of the state," five factors should be considered: whether a money judgment would be satisfied out of state funds, whether the entity performs central governmental functions, whether the entity may sue or be sued, whether the entity has the power to take property in its own name or only in the name of the state, and what the corporate status of the entity is.
The 9th Circuit said that the first factor is the most important in identifying "the arm of the state." The court concluded that the county of Los Angeles, and not the state of California, is liable for the Los Angeles sheriff's actions. Additionally, the 9th Circuit carefully reviewed California law and expressly distinguished McMillian. Thus, in California, county sheriffs are part of local governments and there is no sovereign-immunity bar to suits.
These two recent 9th Circuit decisions, of course, leave open the issue as to what other local government functions might be deemed part of the state. For example, should district attorneys be deemed to be part of local governments or part of the state? Compare McClendon v. May, 37 F. Supp.3d 1371 (S.D. Ga. 1999) (district attorneys in Georgia are state officials), with Hudson v. City of New Orleans, 174 F.3d 677 (5th Cir. 1999) (county district attorney's office in Louisiana is not arm of state and is thereby entitled to 11th Amendment immunity).
Are county coroners part of local governments or the state? See, e.g., Brotherton v. Cleveland, 173 F.3d 552 (6th Cir. 1999) (county coroner could not assert 11th Amendment immunity because office is municipal, not state). Each office will need to be litigated separately.
The issue is of vital importance because of the broad protections sovereign immunity accords to state governments. A key question in the years ahead will be the extent to which the Supreme Court, as part of its expansion in state sovereign immunity, accords it to local governments.
Erwin Chemerinsky is Sydney M. Irmas Professor of Public Interest Law, Legal Ethics and Political Science at the University of Southern California Law School. Amy Kreutner helped research this article.
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