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Thursday, May 14, 2020

§ 1983 or the 11th Amendment

One of my pet peeves is confusion about why states cannot be sued in § 1983 actions: It often is short-handed as being about sovereign immunity depriving a court of jurisdiction, when doctrinally it is about states not being "persons" subject to suit under the statute and there being no cause of action against a state (or state agency).

This arose in Colorado Dept. of State v. Baca (over "faithless elector" laws)  through questions by Justices Breyer and Gorsuch suggesting that the parties colluded to maintain a meritless action in order to obtain a judicial ruling. It appears Baca sued the Secretary of State, then the parties negotiated to have the Department be named defendant and to not challenge its non-suability under § 1983. I would guess that proceeding against the state rather than the secretary was necessary for Baca to proceed with a claim for nominal damages, which was essential to establishing and maintaining standing. Counsel for both sides argued that the Court should not concern itself with this, that the availability of a cause of action is a non-jurisdictional issue that the parties can waive.* Gorsuch suggested that, even if waivable, it might be a basis to DIG the case.

[*] Scott Dodson blanched when he heard that.

I am glad both Justices used the appropriate terminology and framework and wish lower courts would follow suit. But it reveals how nonsensical it is to think of sovereign immunity (which has nothing to do with the text of the Eleventh Amendment) as a jurisdictional rather than merits limitation. Where Congress lacks power to abrogate (e.g., ADEA), the limitation is jurisdictional; where Congress has the power but declined to exercise it (e.g., § 1983), it is merits. Even if in both cases, a state is willing to be sued eo nomine.

Posted by Howard Wasserman on May 14, 2020 at 12:50 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink


Not as a formal matter. The judgment would be against the Secretary and he would owe the $ from his pocket; the state would pay it by private agreement.

Posted by: Howard Wasserman | May 14, 2020 2:20:58 PM

Or, even easier, if the parties both wanted the suit to go forward: sue the Secretary in their individual capacity for only nominal damages, and have the Secretary waive qualified immunity.

Posted by: Slippery Slope | May 14, 2020 2:13:08 PM

Right - the $1 would come from the state treasury whether you name the Secretary in their official capacity or name the Department.

So why would it be necessary/helpful to name the Department, which isn't ever a person under 1983, rather than the Secretary, who at least sometimes is a person under 1983 in their official capacity?

Posted by: Slippery Slope | May 14, 2020 2:10:23 PM

Because the Secretary would not be personally liable for damages to Baca. The money would come from the treasury, because the state removed him, causing his $ 1 in harm. So the court would say the department is the real party in interest because it would pay any judgment. This is sort-of Edelman--the plaintiffs could not say they were seeking $ owed from Edelman himsefl, so the case was really against the state.

Posted by: Howard Wasserman | May 14, 2020 1:53:16 PM

I don't understand why naming the Department makes a nominal damages claim easier to sustain.

At least by suing the Secretary of State in its official capacity, you're suing a permissible defendant under 1983 (i.e. a person), albeit for an impermissible form of relief.

But by suing the Department, you're suing an impermissible defendant under 1983 (a non-person, according to the Court) for an impermissible form of relief.

Posted by: Slippery Slope | May 14, 2020 1:46:07 PM

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