Justices Consider Bid|for Reflexive Litigation

     WASHINGTON (CN) – The Supreme Court tackled federalism concerns on Wednesday in a case considering whether an independent state entity can sue state officials in federal court for alleged violations of federal law.




     The Virginia Office for Protection and Advocacy, an independent state agency that advocates for the mentally ill and developmentally disabled, requested records related to two deaths and one injury in state facilities, but state officials refused to turn over the records.
     The agency sued in Federal Court, and the officials claimed immunity under the Eleventh Amendment, but the court denied the officials’ motion to dismiss. The officials then appealed to the 4th Circuit Court of Appeals, which reversed the district court ruling and said the officials were immune from suit.
     Earle Duncan Getchell, Jr., arguing for Virginia, said allowing a state agency to sue its parent state in federal court harmed the “dignity interest” of the sovereign.
     “A dignified sovereign should not agree to the deal,” Justice Antonin Scalia said. Scalia added that Virginia had two choices when it agreed to accept federal funds to set up a protection and advocacy system. “It could either turn down the money or, if it’s not dignified enough to do that, it could take the money and establish a private organization to do this work instead of a state agency,” Scalia said.
     If Virginia had used a private entity to administer the program, the private entity could sue the state for violations of federal law.
     Most states that accept federal funds to create a protection and advocacy system use private agencies to run the programs. Only eight states have opted to make the programs public, Assistant Solicitor General Ginger Anders said, supporting the agency.
     Justice Ruth Bader Ginsburg said the federal law dictating the terms of the programs makes clear that Virginia had to either set up the program through a private entity or create an independent state agency that retained the ability to sue.
     Justice Anthony Kennedy said allowing the agency to sue the state would be like allowing the state attorney general to sue the governor, which he said would be a “vast extension” of the Ex parte Young doctrine, which allows individuals to sue state officials in federal court for violations of federal law.
     Scalia questioned why it was an extension of Ex parte Young, asking how it was “so horribly worse” for an agency to sue in federal court as opposed to an individual. Getchell argued that Ex parte Young was intended to allow a citizen with both state and federal rights to vindicate his federal rights, whereas in this case the agency could have sued in state court.
     Justice Samuel Alito asked if Virginia knew that it could be sued by the agency in federal court when it agreed to participate in the program. Getchell said no, it did not. He argued that when Virginia set up the agency, it only waived its sovereign immunity to be sued in state court, not federal court.
     Getchell called extending Ex parte Young beyond the rights of citizens to allow a state to sue itself in federal court “totally anomalous,” saying it would make the federal courts a “venue for political grandstanding.”
     “What you are forgetting is that Virginia took a lot of money to set up and get the benefits of federal funds by creating an independent agency,” Justice Sonia Sotomayor said. “The state has already said: We’re going to take your money and this is what we’re going to permit, a suit.”
     The case is VOPA v. Stewart, no. 09-529.

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