Ex Parte Young: Memorandum on Historical Background
Keywords
The concept of treating the sovereign as immune from suit while holding its officers personally liable for wrongs committed in the course of their official duties predates the U.S. Constitution. There is evidence that the notion existed in the Middle Ages and found its way into maxims of English common law. The underlying rationale is that an officer derives no legitimate authority to act pursuant to a law that is invalid because it conflicts with the constitution or other law.
Although there is another string of Supreme Court authority that takes the opposite position - that government officers acting in their official capacity act only on behalf of the state's interests and thus suits against them are barred by the Eleventh Amendment - there is ample precedential law leading up to the 1908 decision in Ex Parte Young, sufficient to attack the assertion that its holding was a mere "legal fiction." This support is summarized below.
English Common Law (1)
As a general rule, English law operated in accordance with the maxim that the "king could do no wrong," and was not amenable to suit in his own court unless he consented. (2) However, his servants could be sued for wrongs done in their official capacities. The theory was that, because the king could do no wrong, he could not authorize a servant to do wrong. Therefore, any wrongful act committed by a servant was committed on his own and he could not invoke the protections of the king. The principle is discussed in books and articles about the English law. Key points from these sources are set forth below.
In W.S. Holdsworth, X A History of English Law (Methuen & Co. Ltd 1938), Holdsworth analyzes the liability of the king's servants for wrongs (other than those based on contracts). He states: "We have seen that the rule that the servants of the Crown are personally responsible to the law for wrongs committed by them in their official capacity, was the view held by the Parliamentary lawyers in the first half of the seventeenth century; and that it was a well-established rule in the second half of that century. It was in fact a logical deduction from two leading principles of constitutional law - first the principle that the King can do no wrong, and, secondly, the principle of the supremacy of the law." Id. at 651.
In Volume 6 of the same treatise, Holdsworth discusses the influence of common lawyers in England on the development of Parliamentary procedures in the early 17th century. He points out that the king, who was not subject to the law, disliked the push to hold the law supreme, even over the king's ministers. ("Our lawes laie all faults and errors in the ministers, that noe displeasure may reflect upon the King," Eliot, speech on the liberty of the subject, Negotium Posterorum ii 122, quoted in VI Holdsworth at 101 n. 3.) Holdsworth notes that for a time the king's servants were answerable only to the king and not to the law, but that the trend reversed in the first half of the 1600s. However, the general principle of the servant's liability had long since been established. "To prove the legal liability of the humbler servants of the crown, such as sheriffs and constables, for their wrongful acts, there was abundant authority, and a continuous practice. To prove the legal liability of the chief ministers of the crown to impeachment and censure in Parliament there was also abundant medieval authority." VI Holdsworth at 102 (noting the absence of precedents due to the king's ability during the Middle Ages to stop litigation in which he had an interest). This era of English history stressed "a theory of ministerial responsibility to the law." "It was one of the most important results of the alliance between the common lawyers and the Parliamentary opposition that this medieval principle of liability to the law was resuscitated, pushed to its logical conclusions, and applied even to the highest ministers of the state." VI Holdsworth at 102.
The seminal English case cited as authority in this area of suits against officers is Feather v. The Queen, 6 B. & S. 257 (1865). Feather had obtained a patent on an invention, but brought a petition of right claiming that government officials had infringed the patent. The court first held that the exclusive rights granted by a patent did not mean that the patent could not be used to protect the holder from use in the service of the crown, because this exclusion was not expressly mentioned in the grant. The court went on to opine that even if Feather's rights had been infringed, a petition of right was not the appropriate means to obtain a remedy. Rather, "the suppliant's remedy, if any wrong has been done to him, is by action against those who did it, who in this case are the Lords of the Admiralty." The court continued:
For the maxim that the King can do no wrong applies to personal as well as to political wrongs; and not only to wrongs done personally by the Sovereign, if such a thing can be supposed to be possible, but to injuries done by a subject by the authority of the Sovereign. For, from the maxim that the King cannot do wrong it follows, as a necessary consequence, that the King cannot authorize wrong. For to authorize a wrong to be done is to do a wrong; inasmuch as the wrongful act, when done, becomes, in law, the act of him who directed or authorized it to be done. . . . Let it not, however, be supposed that a subject sustaining a legal wrong at the hands of a minister of the Crown is without a remedy. As the Sovereign cannot authorize wrong to be done, the authority of the Crown would afford no defense to an action brought for an illegal act committed by an officer of the Crown. . . . [I]n our opinion no authority is needed to establish that a servant of the Crown is responsible in law for a tortious act done to a fellow subject, though done by the authority of the Crown - a position which appears to us to rest on principles which are too well settled to admit of question, and which are alike essential to uphold the dignity of the Crown on the one hand, and the rights and liberties of the subject on the other.
In Louis L. Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv. L. Rev. 1 (1963), the author states that by the time of Edward I's reign, it was clear that the king's officers, at least at lower levels, could be ordered to pay damages for taking property or for wrongful imprisonment. Id. at 9 (citing Statute of Westminster I, 1275; Statute of Westminster II, 1285). Jaffe also notes that writs of certiorari and mandamus, as well as other remedies, were available against officers at the time of drafting of the American Constitution, and in fact that the doctrine was probably expanded in America to provide broader servant liability, to make up for the loss of the availability of the petition of right against the king.
In Clyde E. Jacobs, The Eleventh Amendment and Sovereign Immunity 6 (Greenwood Press, Inc. 1972), the author states: "The immunity doctrine by [the late seventeenth century] was largely a legal conception, which determined the forms of procedure in some cases but did not seriously impair the subject's right to recovery in accordance with the substantive law."
The concept of recovery against state officers underscored the essential decisions of the Supreme Court that an officer could not claim sovereign immunity. For example, as Orth noted:
What [Chief Justice] Marshall did in [Osborn v. The Bank of the United States, 22 U.S. 738 (1824)] was to reenact in America one phase of English constitutional history. From the simple fact of practical politics that the king could not be made to answer in his own courts, the English had derived the grandiloquent maxim: "The king can do no wrong . . . ." Far from forming a basis for absolutism, however, this maxim actually became a cornerstone of constitutional monarchy. If the king cannot do wrong, but wrong has in fact been done, then someone other than the king has done it. An errant officer could not assert the sovereign's immunity. Marshall simply put this thinking to work in Osborn to minimize the extent to which the Eleventh Amendment insulates state officers from suit.
Orth, supra, at 40-41.
There are additional English cases that demonstrate that relief against a government official was available. See Ashby v. White, 1 Brown P.C. 45, 1 Eng. Rep. 417 (H.L. 1703) (allowing suit against an election officer for refusing to allow a person to vote, reversing the judgment of the lower court); The Queen v. Commissioners for Special Purposes of the Income Tax, 21 Q.B.D. 313 (C.A. 1888) (issuing a mandamus directing tax commissioners to rebate taxes to which the taxpayers were entitled by statute); Entick v. Carrington, 2 Wils. 275, 95 Eng. Rep. 807 (K.B. 1765) (judgment for plaintiff for trespass by officers of the lord of the privy council); Ellis v. Earl Grey, 6 Sim. 214, 58 Eng. Rep. 574 (1833) (directing the lords of the treasury to pay pension funds to the plaintiff; overruling demurrer by officers claiming that they were merely performing official duties in determining to whom the money should be paid).
American Historical Precedent
United States v. Peters, 9 U.S. (5 Cranch) 115 (1809). Peters was the first post-Eleventh-Amendment case in which individuals raised the defense of sovereign immunity. In an opinion by Chief Justice Marshall, the Court held that the Eleventh Amendment did not bar a suit against an individual even where the state had an interest in the outcome of the dispute.
The case originated as a claim by a group of American sailors who had been captured by the British during the Revolutionary War and forced to work on a British ship. They mutinied in 1778 and steered the ship toward New Jersey. On the way, they were intercepted by a ship belonging to the state of Pennsylvania, which claimed the British ship as a prize of war. The sailors sued, claiming the proceeds of the ship belonged to them. However, the Pennsylvania admiralty court found that they were entitled only to one-fourth of the proceeds. The sailors appealed to the committee of appeals of the Continental Congress (which apparently had jurisdiction over appeals from state admiralty courts). The committee sided with the sailors. The state, however, ignored that determination and the proceeds were turned over to David Rittenhouse, the Pennsylvania state treasurer, who, as was customary, held the funds in his own account.
After Rittenhouse's death, the Pennsylvania legislature directed Rittenhouse's heirs to turn the money over to the state treasury. The heirs would not comply because of the conflicting claims. Around the same time, the sailors brought a federal action against the heirs, in which the court (Judge Peters), in 1803 directed that the entire sum should be paid to the sailors. The state again refused to accept the decision, partly on the ground that because state interests were implicated, the Eleventh Amendment barred the suit. The state legislature then proceeded to enact legislation declaring the decisions of the committee of appeals and of Judge Peters to be void usurpations of state power.
In 1808, the sailors sought a writ of mandamus from the U.S. Supreme Court to direct Judge Peters to execute his earlier judgment. The Court granted the writ, dismissing the claim of Rittenhouse's heirs that because the money in question effectively belonged to the state, the Eleventh Amendment barred suit.
The Supreme Court found that because the money was in Rittenhouse's personal account the suit was not really against the state. In effect, the Court nullified the act of the Pennsylvania legislature. In response to the Eleventh Amendment argument, the Court stated:
If these proceeds had been the actual property of Pennsylvania, however wrongfully acquired, the disclosure of that fact would have presented a case on which it was unnecessary to give an opinion, but it certainly can never be alleged, that a mere suggestion of title in a state to property, in possession of an individual, must arrest the proceedings of the court, and prevent their looking into the suggestion, and examining the validity of the title.
Peters, 9 U.S. at 139-40. The Court went on to find that the state had no valid claim to the money because the committee of appeals had the authority to reverse the state admiralty court and had done so in this case, immediately vesting the right to the money in the sailors:
Since, then, the state of Pennsylvania had neither possession of, nor right to, the property on which the sentence of the district court was pronounced, and since the suit was neither commenced nor prosecuted against that state, there remains no pretext for the allegation that the case is within that amendment of the constitution which has been cited; and, consequently, the state of Pennsylvania can possess no constitutional right to resist the legal process which may be directed in this cause.
Id. at 141.
Osborn v. The Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824). Osborn is one of the seminal cases on officer suits. In Osborn, the Bank of the United States sued the Auditor of the state of Ohio and a tax collector working under his direction. The State of Ohio had unconstitutionally enacted a tax against the national bank. The bank obtained a federal injunction against enforcement of the tax, but the state officers ignored it and seized property of the bank. The federal court issued another injunction directing the property to be restored to the bank, which the state refused to do. The court directed that the property be seized from the state treasury. Ohio's officials appealed to the U.S. Supreme Court.
The Court, in another opinion by Chief Justice Marshall, acknowledged that the state's interest in the outcome of Osborn was much more direct than in Peters. Marshall's logic became the basic principle allowing officer suits:
This is certainly true, where it is in the power of the plaintiff to make [all parties with a substantial interest in the matter] parties; but if the person who is the real principal, the person who is the true source of the mischief, by whose power and for whose advantage it is done, be himself above the law, be exempt from all judicial process, it would be subversive of the best established principles, to say that the laws could not afford the same remedies against the agent employed in doing the wrong, which they [] would afford against him, could his principal be joined in the suit.
Osborn, 22 U.S. at 842-43 (prior to reaching the state immunity argument). The Court then went on to acknowledge the state's direct interest and noted that "had it been in the power of the Bank to make it a party, perhaps no decree ought to have been pronounced in the cause, until the State was before the Court. But this was not in the power of the Bank." Id. at 846-47. The court then found the act of the Ohio legislature to be unconstitutional, such that no defendant could have derived authority to act nor could he claim authority or protection from the state. Id. at 868. (This point was to become the key on which future cases allowing suits to proceed against officials were hinged.)
The Court appeared to state a rule that the nominal party to the suit governed the application of the Eleventh Amendment, and where the state was not expressly named, the amendment did not bar suit. Marshall may not have intended to issue such a black-and-white test, which at any rate was abrogated shortly and was never treated as the rule.
Governor of Georgia v. Madrazo, 26 U.S. (1 Pet.) 110 (1828). In Madrazo, the court clarified that the state need not be a nominal party in order for its interests to be implicated such that its officers could be protected by the Eleventh Amendment. Madrazo was the only case during the tenure of Chief Justice Marshall to reject a claim against a state officer based on a state's Eleventh Amendment immunity.
In that case, a ship belonging to a Spanish citizen and carrying slaves was captured by an American ship. The slaves were eventually sold to a private citizen and then seized by the state of Georgia. Madrazo sued the governor of Georgia to either repossess the slaves or obtain the proceeds of sale. The Supreme Court found the suit barred on the basis of the Eleventh Amendment, distinguishing Osborn on two bases, such that Madrazo is not inconsistent: first, the governor was named by his office only, not his name, implying that he had no personal accountability; and second, there was no allegation that any federal law had been violated. After Madrazo, the general rule allowing suits against officers was undisturbed for the next 50 years.
Davis v. Gray, 83 U.S. (16 Wall.) 203 (1872). Davis is another seminal case. The state of Texas had issued certificates granting lands to railroads that met certain conditions. Subsequently, the Texas legislature decreed that certain of these lands were deemed forfeited to the state, and allowed the land to be resold to other parties. Gray, the appointed receiver of a railroad, sued to enjoin Texas officials from interfering with the railroad's land grants.
Relying on Osborn, the Court dismissed the claim that the suit was really against the state. The Court noted that Osborn stood for three points: (1) a federal court can enjoin a state officer from carrying out a state law that will violate rights in contravention of the U.S. Constitution or statute; (2) if the state could be made a party, it should, but the fact that it cannot is justification for failure to do so and does not prevent a proceeding against the officers; (3) the court will not look beyond the named parties to determine whether the state is a party. (This last point was already not good law.) The Court noted again the concept that an unconstitutional state law cannot provide legitimate state authorization for an officer's act.
Board of Liquidation v. McComb, 92 U.S. (2 Otto) 531 (1875). The State of Louisiana had issued bonds to consolidate its debt, and offered to exchange them with creditors for 60 cents on the dollar. Subsequently, the state used some of these bonds to liquidate, at face value, debt of the Louisiana Levee Company, an act that violated the pledges in the creation of the bonds regarding limitations on their use and caused a substantial decrease in the bonds' value. A bondholder sought an injunction against the Board of Liquidation to prevent this use of the bonds.
As to the argument that the suit was really against the state, the Court stated:
On this branch of the subject the numerous and well-considered cases heretofore decided by this court leave little to be said. . . . [I]t has been well settled that, when a plain official duty, requiring no exercise of discretion, is to be performed, and performance is refused, any person who will sustain personal injury by such refusal may have a mandamus to compel its performance; and when such duty is threatened to be violated by some positive official act, any person who will sustain personal injury thereby, for which adequate compensation cannot be had at law, may have an injunction to prevent it. . . . In either case, if the officer plead the authority of an unconstitutional law for the non-performance or violation of his duty, it will not prevent the issuing of the writ. An unconstitutional law will be treated by the courts as null and void.
McComb, 92 U.S. at 541 (citing Osborn and Davis).
United States v. Lee, 106 U.S. (16 Otto) 196 (1882). Lee is a case finding federal officers personally subject to suit for official acts, but is considered a key case in the state officer suit jurisprudence. In Lee, the heirs of Robert E. Lee's wife sued federal officers seeking to reclaim title to family land that had been seized by the federal government and turned into Arlington National Cemetery. The Court analyzed the English concept that the king could not be sued except by his consent to a petition of right. The Court noted that the United States had no entity analogous to the king, so that the English rationale of preventing the absurdity of a king summoning himself to court was not a factor. Although the United States could not be directly sued, "there is abundant evidence in the decisions of this court that the doctrine, if not absolutely limited to cases in which the United States are made defendants by name, is not permitted to interfere with the judicial enforcement of the established rights of plaintiffs when the United States is not a defendant or a necessary party to the suit." Id. at 207-08. The Court noted again that an unauthorized act will not immunize a state official from liability. The Court also stated that an officer's assertion that his act is authorized by the government should not be blindly accepted without judicial inquiry into the truth of the assertion. Notably, the Court stated:
The evils supposed to grow out of the possible interference of judicial action with the exercise of powers of the government essential to some of its most important operations will be seen to be small indeed compared to this evil [that a party to a lawsuit may bring an end to proceedings simply by asserting some governmental authority], and much diminished, if they do not wholly disappear, upon a recurrence to a few considerations. One of these, of no little significance, is that during the existence of the government for now nearly a century under the present constitution, with this principle and the practice under it well established, no injury from it has come to that government.
Lee, 106 U.S. at 221. In addition to Lee, there are other cases allowing suits against federal officers where the supposed authority for the act was void. See, e.g., Mitchell v. Harmony, 54 U.S. (13 How.) 115 (1851) (United States military officer trespassed on private property under authorization of an illegal act which did not justify his actions); Bates v. Clark, 95 U.S. (5 Otto) 204 (1877) (military officers liable for seizing whiskey from lands where they lacked authority to act).
Cunningham v. Macon & B.R. Co., 109 U.S. 446 (1883). (3)
The state of Georgia had loaned money to a railroad company and had foreclosed when the railroad had defaulted on interest payments. The governor then sold the railroad's property to the state. The suit claimed that holders of a second series of railroad bonds were entitled to some payment. The Court found the state of Georgia to be an indispensable party and affirmed the dismissal.
Although this case disallowed suit of state officers, it recognized a class of cases where state officers could be sued for personal wrongs inflicted in the absence of proven and legitimate state authority. "In these cases [where the defendant claims he acted under color of state law] he is not sued as, or because he is, the officer of the government, but as an individual, and the court is not ousted of jurisdiction because he asserts authority as such officer. To make out his defense he must show that his authority was sufficient in law to protect him." Id. at 452. Therefore, Cunningham is often cited for the proposition that officer liability is available in some cases.
The Virginia Coupon Cases. The Virginia Coupon Cases, although brought to enforce state debts, were treated differently from the cases involving debts of other southern states. (4) (See note 3.) Virginia had issued bonds with coupons that, by the terms of the bonds, could be used to pay state taxes. Subsequently, the state legislature passed an act requiring all taxes to be paid in money. Various claimants tendered the coupons in payment of state taxes, which the state officers would not accept, and thus seized property of taxpayers to satisfy their taxes. In these cases, for example, Poindexter v. Greenhow, 114 U.S. 270 (1885), the Supreme Court ordered state officials to return all property seized. The Court held that the state could manifest its will only through constitutional acts, and the statute requiring payment of taxes in money violated the Constitution's contract clause. The state officers could not rely on legislation in contravention of the contracts clause to provide their authority to seize property. Citing Cunningham and other cases, the Court stated:
The ratio decidendi in this class of cases is very plain. A defendant sued as a wrongdoer, who seeks to substitute the state in his place, or to justify by the authority of the state, or to defend on the ground that the state has adopted his act and exonerated him, cannot rest on the bare assertion of his defense. He is bound to establish it. . . . It is necessary . . . for such a defendant, in order to complete his defense, to produce a law of the state which constitutes his commission as its agent, and a warrant for his act. . . . [The statute relied upon by the defendant in Poindexter] is a legislative act of the government of Virginia, but it is not a law of the state of Virginia. The state has passed no such law, for it cannot; and what it cannot do, it certainly, in contemplation of law, has not done. . . . [The officer] stands, then, stripped of his official character, and, confessing a personal violation of the plaintiff's rights, for which he must personally answer, he is without defense.
Id. at 288. The Court also drew a distinction between the state itself - "an ideal person, intangible, invisible, immutable" - and the government: "an agent, and, within the sphere of the agency, a perfect representative; but outside of that, it is a lawless usurpation." Id. at 290.
Ex Parte Ayers, 123 U.S. 443 (1887). Ayers, while finding a suit against a state officer barred by the Eleventh Amendment, affirmed the principle that state officers may in some cases be sued for personal wrongs, including official acts allegedly sanctioned by unconstitutional or invalid law (although the opinion was qualified by noting that the fact that a state officer institutes proceedings under a state law was not actionable). Orth's book suggests that in the wake of the Virginia Coupon Cases, Ayers was decided the other way only because the pace was moving too fast, and the Court was not willing to revert back to liberal allowance of officer suits quite so quickly. Orth, supra at 101.
Ayers was the attorney general of the state of Virginia, and his case came before the Supreme Court on a writ of habeas corpus after he was jailed for contempt. After the Virginia Coupon Cases, in which the Supreme Court had found unconstitutional Virginia's laws allowing the tax collector to seize property of taxpayers who had attempted to pay their taxes with coupons, the Virginia legislature passed another act, directing each county, city and town to furnish a list of all taxpayers who had tendered coupons, and directing the attorney general or other attorney for the commonwealth to institute suits against these taxpayers for their taxes due. The statute placed a heavy burden on the taxpayer to prove that the coupons were genuine in order to defend against the suit.
The plaintiffs in the underlying case had, after the Virginia Coupon Cases, purchased coupons on the open market in England for the purpose of reselling them to Virginia citizens, and sued Ayers for impairing the value of the coupons by acts in violation of the contracts clause. The lower federal court ordered Ayers and other officers to refrain from bringing any such suit described in the new act. Ayers subsequently instituted a tax-collection suit against a railroad, claiming that the court had no jurisdiction to enjoin the acts he was bound by the state to perform.
The Supreme Court avoided Poindexter by noting that there the Court did not expressly state that the coupons were sufficient to pay the taxes; it had merely held that tender of coupons was sufficient to forestall seizure of property. The Ayers court claimed that the Poindexter opinion left the door open for a taxpayer tendering coupons to be sued for delinquent taxes and to be required to defend himself by proving the coupons' genuineness. Therefore, the newer legislative act did not violate the contracts clause, and the officials' acts of bringing suit did not violate any constitutionally-protected right. (5)
The Court reached this conclusion while still honoring the basic notion that an officer can be enjoined from taking acts in furtherance of an unconstitutional state law. The Court found a clear basis for distinction: where to enjoin an officer's acts would be essentially to force specific performance of a contract with the state, the state is the real party because the only remedy is on the contract and must issue from the state. Id. at 504. Therefore, such suits are barred. On the other hand:
[T]his [holding] is not intended to impinge upon the principle which justifies suits against individual defendants, who, under color of the authority of unconstitutional legislation by the state, are guilty of personal trespasses and wrongs, nor to forbid suits against officers in their official capacity either to arrest or direct their official action by injunction or mandamus, where such suits are authorized by law, and the act to be done or omitted is purely ministerial, in the performance or omission of which the plaintiff has a legal interest.
Id. at 506.
Pennoyer v. McConnaughy, 140 U.S. 1 (1891). The pendulum by this time swung back in favor of officer suits. This trend was seen as reverting to the established practice after the anomaly of dealing with the Southern state bond cases. Orth, supra at 122.
In Pennoyer, a California citizen sued Oregon state officials, comprising the board of land commissioners, to enjoin their sale of swamp land to which the plaintiff claimed title. An Oregon statute had provided a means for the board to offer parcels of swamp land for sale under certain conditions, including a down payment and a promise to drain the land. Upon meeting the conditions within ten years of the initial transaction, the purchaser would receive a patent for the land. The plaintiff had obtained his rights in the land through an original purchaser, and had assumed the obligation to the state to pay the balance due and meet the other conditions. However, after the original purchaser had entered into the transaction, but before he had made his down payment, Oregon had enacted another statute that essentially cancelled all outstanding certificates for land under this program. Because the down payment remained outstanding on the effective date of the new statute, the state treated the rights as forfeited to the state. The plaintiff thus sued the board to enjoin their sale of the lands, alleging that the acts violated the contracts clause.
After the lower court overruled two demurrers based on claims of Eleventh Amendment immunity, the Supreme Court found the state not to be the real party in interest because the statute in question was unconstitutional; therefore the defendants had acted on their own. The Court relied on the reasoning in Osborn, Davis, McComb, Cunningham and Ayers and noted that the basic proposition was the settled law of the country. "[T]he general doctrine of Osborn v. Bank, that the circuit courts of the United States will restrain a state officer from executing an unconstitutional statute of the state, when to execute it would violate rights and privileges of the complainant which had been guaranteed by the constitution, and would work irreparable damage and injury to him, has never been departed from." Id. at 11. However, Pennoyer drew a distinction between suits seeking affirmative relief, compelling officers to act in a manner violative of their own state law; and suits seeking preventive relief, enjoining an officer from acting pursuant to an unconstitutional law.
Ex Parte Tyler, 149 U.S. 164 (1893). The sheriff of a South Carolina county was detained by federal marshals pursuant to an injunction preventing him from interfering with property of a railroad held by a receiver by levying excessive and illegal taxes. The Court cited Pennoyer, among others, in holding that the suit was not against the state. The Court went so far as to say: "It is unnecessary to retravel the ground so often traversed by this court in exposition and application of the eleventh amendment." Id. at 190.
Reagan v. Farmers' Loan & Trust Co., 154 U.S. 362 (1894).Reagan began the series of railroad rate cases that led to Ex Parte Young. The suit was brought by a trustee against a railroad (whose bonds the trust held) and the railroad commissioners, to enjoin enforcement of rates and regulations alleged to be unconstitutional under the Fourteenth Amendment, and to enjoin the attorney general from suing for penalties for noncompliance. The Court suggested, for the first time, that the state had no pecuniary interest at all in the matter, but only a governmental one. The Court noted that the injunction required no expenditure from the state treasury and seemed to say that the injunction on collection of rates did not have as significant an impact on the state as did injunctions prohibiting collection of taxes, which were acceptable. The Court also acknowledged that the statute expressly provided that an aggrieved railroad company could bring suit against the commission in "a court of competent jurisdiction in Travis county, Texas," without specifying that it must be a state court. From this the Court inferred that federal suit must be allowed.
Tindal v. Wesley, 167 U.S. 204 (1897). This suit was brought by a citizen of New York against South Carolina officers to recover real property located in South Carolina. The plaintiff had purchased the property from the state, but the defendants had taken possession of the property after the plaintiff attempted to pay for it in revenue bond scrip that the state no longer honored. (In fact, the plaintiff had intentionally done this in order to obtain a judicial determination as to the value of the scrip, but the lower court had properly excluded evidence of that fact.) The jury had found for the plaintiff and the lower court had directed the federal marshal to deliver possession to the plaintiff.
The defendants -- the secretary of state and another official -- pointed out that they held the property on behalf of the state and for a public purpose and had no personal right, title or interest in the property; thus the suit was against the state. The Court found that the secretary of state "has charge of all the property of the state, the care and custody of which is not otherwise provided for." Id. at 211. Therefore, the officials did have personal possession and an action for ejectment existed. The Court also noted that the state had refused to intervene to establish that the property was in its possession, nor had defendants attempted to actually prove that the property belonged to the state. Citing Lee, Cunningham and Pennoyer, the Court questioned whether it could simply accept the defendants' assertion of title and right to property in the name of the state, without examining the matter and determining its truth. "We are of opinion that the principles announced by this court in cases heretofore decided furnish an answer to these questions." Id. at 212. The Court relied on the Lee analysis to find that where a defendant asserts that his act is lawful by virtue of state authorization, but the state is not a party, the Court must assume the plaintiff can prove the facts he asserts. Then the question of jurisdiction depends on a decision on the merits. "The settled doctrine of this court wholly precludes the idea that a suit against individuals to recover possession of real property is a suit against the state simply because the defendant holding possession happens to be an officer of the state, and asserts that he is lawfully in possession on its behalf." Id. at 221.
Smyth v. Ames, 169 U.S. 466 (1898). Citizens of Nebraska (stockholders of a railroad company) sued various state officials to enjoin railroad ratemaking under a specific statute alleged to be unconstitutional. The Court found that Nebraska was not the real party but rather that the case was "against certain individuals charged with the administration of a state enactment, which, it is alleged, cannot be enforced without violating the constitutional rights of the plaintiffs. It is the settled doctrine of this court that a suit against individuals for the purpose of preventing them as officers of a state from enforcing an unconstitutional enactment to the injury of the rights of the plaintiff, is not a suit against the state within the meaning of [the Eleventh] Amendment." Id. at 518-19. See also Prout v. Starr, 188 U.S. 537 (1903) (same).
Conclusion
There is ample historical support for the holding in Ex Parte Young. However, the availability of injunctive relief against state officers has gone through phases of reinterpretation and has been redefined and limited prior to that decision.
This memo was prepared by the firm of Manatt, Phelps, Phillips.
Notes
1. The information presented here on the English law merits further research and a deeper analysis. However, the cited materials summarize the law.
2. The king could consent where a party brought a petition of right against him. These petitions were the means used by subjects seeking redress with regard to the taking of their property by the crown. John V. Orth, The Judicial Power of the United States 122 (Oxford Univ. Press 1987).
3. After the decision in McComb, the tide began to turn and the Supreme Court began regularly to extend the immunity of the state to claims against state officers by holders of prewar indebtedness of southern states. These cases, finding the state to be an indispensable party, were in direct contravention of the earlier cases and granted broad immunity even though the acts in question were clearly unconstitutional impairments of contracts. There is some analysis indicating that the Court's rationale behind these decisions was that the federal government knew that it would be unable to force the states to pay these debts and that the Eleventh Amendment argument was a way to avoid a dispute. "With Congress and the President committed to end Reconstruction there were no means by which the Supreme Court, even if it had been willing, could have forced Southern states to pay. Orders to raise taxes to pay unpopular debts would require more than a judge's say-so." See Orth, supra at 8, 67. The earliest of these decisions noted in strong dissents that the finding of Eleventh Amendment immunity was a sharp break from earlier practice. See, e.g., Louisiana ex rel. Elliott v. Jumel, 107 U.S. 711 (1883) (Harlan, J. and Field, J., dissenting);North Carolina v. Temple, 134 U.S. 22 (1890) (Harlan, J., dissenting).
4. Orth attributes the difference in the Court's treatment of the debts of Virginia (some of which the state had shifted to West Virginia) from the other southern states to the fact that Virginia's bond coupons had expressly been authorized to be used for state tax payment. "The crucial difference lay in one term in the Old Dominion's contract with its creditors: the interest due on the bonds, represented by coupons, had been made receivable in payment of state taxes. Although a generation of Virginia lawyers devised imaginative means to evade this agreement, the state was never able to free itself entirely of debt. The reason speaks volumes about the nature of judicial power. While holders of Louisiana and North Carolina bonds had to sue the debtor states for their money, holders of Virginia coupons could tender them in payment of state taxes and then simply sit back. The state would be forced to sue them for the taxes it claimed. Under these circumstances federal courts did not need to rely on the political branches of government to enforce their orders but could protect creditors by a judgment that their taxes had in fact been paid. In these cases the Eleventh Amendment faded into the background." Orth, supra at 8-9, 90.
5. The Court also alluded to the fact that the plaintiffs did not have standing to complain about the taxpayers' rights. Any loss in value to the plaintiffs was not a direct consequence of any breach by the state of Virginia of its contract to accept the coupons as payment for taxes. The Court then concluded that in reality the suits were against the state, not the officers personally.