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An Overview of State Sovereign Immunity

An Overview of State Sovereign Immunity
by Bless Young and Kurt Gurka

I. State Sovereign Immunity and the Eleventh Amendment

A. Historical Perspective
Sovereign immunity shields states from having to defend themselves against suits in law or at equity in the federal system. Although not explicitly incorporated into the constitutional text, it seemed apparent that sovereign immunity, as it had existed up to ratification, would remain in place. However, this assumption was destroyed by the 1793 case of Chisholm v. Georgia, 2 Dall. 419 (1793), where the Supreme Court, in a 4-1 vote, upheld its jurisdiction over an action in assumpsit brought by a South Carolina citizen against the State of Georgia.

Reaction was fast and furious. Congress immediately began work on the Eleventh Amendment, and within five years it was ratified. It reads: "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." When read in light of Chisholm, the amendment is easily understood as the constitutional overturning of that decision. However, this language, much like that of Article III, offers little assistance in determining the true scope of State sovereign immunity.

The Supreme Court again reviewed State sovereign immunity and the Eleventh Amendment in Hans v. Louisiana, 134 U.S. 1 (1890). There the court addressed the issue of whether a citizen can sue his own state. The unanimous decision was no. Justice Harlan concurred in the result, noting the holding of the case was simply that "a suit directly against a State by one of its own citizens is not one to which the judicial power of the United States extends, unless the State itself consents to be sued." Id. at 21.

Currently there is a fair amount of confusion concerning what the relationship is between State sovereign immunity and what is often referred to as "Eleventh Amendment immunity." The confusion can be cleared up by bearing in mind the following: (a) the States retained their immunity as sovereigns even after the adoption of the Constitution, and (b) the Eleventh Amendment was passed simply to overrule the Supreme Court's decision in Chisholm; so (c) while the Eleventh Amendment only addresses the holding of Chisholm, it stands for the of the Constitution.1

The current rule for sovereign immunity is that no action may proceed against a State unless:

1. The plaintiff is also a State;
2. The State has waived immunity by:
a. expressly so stating;

b. removing an action in state court to federal court; or

c. accepting Congressional gift (generally in the form of federal funds) on the condition that the State waive its Eleventh Amendment immunity;

3. Congress, acting pursuant to *5 of the Fourteenth Amendment, abrogates State sovereign immunity by unequivocally stating its intention to abrogate that immunity; or

4. The judicially created Ex Parte Young exception applies: i.e., where the plaintiff seeks only prospective injunctive relief from an individual acting in his official capacity in order to end a continuing violation of federal law, and Congress's intent is to allow for such an action, unless special sovereignty issues are implicated.2

B. Recent Developments in State Sovereignty and the Eleventh Amendment

Recent questions involving State sovereign immunity have arisen in three areas:

1. When has a State waived its immunity?

2. When is Congress constitutionally exercising its valid Fourteenth Amendment powers? and

3. When does the Ex Parte Young exception apply?

1. When has a State waived immunity?

The Supreme Court

a. In Lapides v. Board of Regents of the University System of Georgia, 535 U.S. 613 (2002), the Supreme Court overturned the Eleventh Circuit's finding that the State had not waived its Eleventh Amendment immunity when it removed a case to federal court. Justice Breyer, speaking for a unanimous Court, found it "anomalous or inconsistent for a State both (1) to invoke federal jurisdiction, thereby contending that the 'Judicial power of the United States' extends to the case at hand, and (2) to claim Eleventh Amendment immunity, thereby denying that the 'Judicial power of the United States' extends to the case at hand." Id. at 619. Thus, the Supreme Court reaffirmed its holding in Gunter v. Atlantic Coast Line R. Co., 200 U.S. 273 (1906), that "where a State voluntarily becomes a party to a cause and submits its rights for judicial determination, it will be bound thereby and cannot escape the result of its own voluntary act by invoking the prohibitions of the Eleventh Amendment." Lapides, 535 U.S. at 619.

b. The Supreme Court has also had occasion to address the question of whether "constructive waiver" may ever be applicable. In College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999), the Court answered no. Plaintiff, College Savings Bank, sued an arm of the State of Florida, Florida Prepaid ("Board"), alleging unfair competition under the Lanham Act, as amended by the Trademark Remedy Clarification Act ("TRCA"), based on the Board's alleged false advertising. The District Court dismissed the claim on Eleventh Amendment grounds, and the Court of Appeals affirmed. The Supreme Court, per Justice Scalia, held that although the State of Florida was a participant in interstate commerce, Congress could not abrogate State immunity by legislating pursuant to its Article I powers. Even though the State had voluntarily entered into competition with College Savings Bank and others, this is one of those few cases where the precise text of the Constitution resolves the matter at hand, i.e., the prohibition against a foreign citizen suing a State. Most importantly, the Board, by participating in the market for savings, did not waive its immunity to suit, and Congress's attempts under the TRCA to abrogate the Eleventh Amendment were unconstitutional.

Several recent cases indicate that the circuit courts have been in relative agreement as to when waiver has occurred.

The Eighth Circuit

In Union Electric Company v. Missouri Department of Conservation, 2004 WL 912258 (unpublished 2004), the Court upheld the trial court's dismissal of an action against the Missouri Department of Conservation ("MDOC") as barred by the Eleventh Amendment. The plaintiff, Union Electric Co., was licensed by FERC to operate the Bagnell Dam on the Osage River. In the spring of 2002, the river experienced a significant fish kill below the dam. Plaintiff and defendant entered into negotiations for a settlement of the cost of the fish kill. When negotiations broke down, plaintiff sought declaratory and injunctive relief in federal court to prevent MDOC from suing it in State court. After the trial court determination in favor of MDOC, plaintiff appealed. The Eighth Circuit held that MDOC had not waived its Eleventh Amendment immunity by making a general appearance and defending against the action and that the State Attorney General did not waive immunity by seeking to intervene in the suit. Id. at ¦5.

The Tenth Circuit

The Tenth Circuit examined immunity and waiver in the context of the Family and Medical Leave Act and the Rehabilitation Act in Brockman v. Wyoming Department of Family Services, 342 F.3d 1159 (10th Cir. 2003). The plaintiff, Brockman, filed suit alleging that the Defendant department had violated the self-care provision of the FMLA and relevant portions of the Rehabilitation Act. The department asserted sovereign immunity to both actions. In considering the FMLA action first, the Court held that the self-care provisions were not applicable to States because they did not implicate any of the gender-based aspects of Hibbs (discussed, infra) and therefore sovereign immunity barred the claim. Secondly, the Court found that while enforcement of the Rehabilitation Act against the State was barred by sovereign immunity, "by accepting federal financial assistance [the State and its] entities waive[d] sovereign immunity from suit." Id. at 1168; citing Robinson v. Kansas, 295 F.3d 1183, 1189-90 (10th Cir. 2002).

2. When Is Congress Constitutionally Exercising Its Valid Fourteenth Amendment Powers?
The Supreme Court

a. Perhaps the most important case of the last year is Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003). Plaintiff Hibbs was an employee in the Defendant department's Welfare Division when, in April and May of 1997, he sought leave under the Family and Medical Leave Act of 1993 ("FMLA") to care for his wife, who was recovering from a car accident that had left her with a neck injury. The department granted plaintiff 12 full weeks of leave, to be used as needed between May and December of that year. By October plaintiff had exhausted his leave and was informed by the department that he must return to work. Plaintiff failed to do so and was fired. He then filed suit in "U.S. District Court seeking damages and injunctive and declaratory relief for, inter alia, violations of 29 U.S.C. ¤2612(a)(1)(C)." Id. The Supreme Court "granted certiorari to resolve a split among the Courts of Appeals on the question whether an individual may sue a State for money damages in violation of ¤2612(a)(1)(C)." Id. at 725.

The Supreme Court first reviewed its prior case law and stated "we have made clear that the Constitution does not provide for federal jurisdiction over nonconsenting States." It then approached the exception that ÒCongress may, however, abrogate such immunity in federal court if it makes its intention to abrogate unmistakably clear in the language of the statute and acts pursuant to a valid exercise of its power under ¤5 of the Fourteenth Amendment." Id. at 726. The Court wasted no time finding that Congress clearly intended to abrogate State immunity; the issue was whether the FMLA was a valid exercise of that power.

First, the Court considered the relevant portions of the Fourteenth Amendment, finding that:

Two provisions of the Fourteenth Amendment are relevant here: ¤5 grants Congress the power "to enforce" the substantive guarantees of ¤1 - among them, equal protection of the laws - by enacting "appropriate legislation." Congress may, in the exercise of its ¤5 power, do more than simply proscribe conduct that we have held unconstitutional. "Congress' power 'to enforce' the Amendment includes the authority both to remedy and to deter violation of rights guaranteed thereunder by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment's text." Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 363 (2001). . . In other words, Congress may enact so-called prophylactic legislation that proscribes facially constitutional conduct, in order to prevent and deter unconstitutional conduct.

Id, at 727-28.

The Court then noted that it was emphatically within its province, however, to define the substance of Constitutional guarantees, and that in determining whether Congress was enacting appropriate prophylactic legislation or substantively redefining the Fourteenth Amendment right at issue it would apply the test it formulated in City of Boerne v. Flores, 521 U.S. 507 (1997). Specifically, "valid ¤5 legislation must exhibit congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Id. at 520.

The Court found that the FMLA met the requirements of the test set forth in City of Boerne, and held that employees of the State of Nevada may recover money damages in the event of the State's failure to comply with the family-care provision of the Act. Hibbs, 538 U.S. at 724. In reaching its decision, the majority opinion relied heavily on several Congressional findings: (1) that despite repeated attempts by Congress, sex-based discrimination was still pervasive in the workplace; (2) that there was significant evidence that States discriminatorily granted maternity leave in excess of paternity leave; (3) that parental leave for fathers is rare; and (4) in instances where leave was granted on a discretionary basis, it was often discriminatorily granted. Id. at 730-32.

Additionally, the Court found that previous Congressional attempts to address the problem of sex-based discrimination through Title VII and its subsequent amendment (the Pregnancy Discrimination Act) were unsuccessful. The 12 week floor mandated by the FMLA for leave, however, ensured men were provided equal leave and would not encourage employers to hire men instead of women, thus satisfying the congruency leg of City of Boerne. In satisfying the proportionality leg of City of Boerne, the Court found several provisions of the Act persuasive: (1) the FMLA only requires unpaid leave; (2) it only applies to employees who worked for the employer for at least one year and worked 1,250 hours in the last 12 months; (3) employees in high-ranking positions are ineligible for FMLA leave; (4) State-elected officials, their staffs, and appointed policy makers are exempt; (5) employees must give advance notice of their leave; and (6) employers may require certification by a health care provider for the leave. Id. at 737-40.

Of particular importance was the effect of the ruling in Hibbs. As Justice Scalia wrote in his dissent, this case involved guilt by association. At no point was it proven that Nevada had acted in violation of the Fourteenth Amendment, only that some private employers had engaged in sex-based discrimination in the past. In Justice Kennedy's dissent, he noted that:

The Court is unable to show that States have engaged in a pattern of unlawful conduct which warrants the remedy of opening state treasuries to private suits. The inability to adduce evidence of alleged discrimination, coupled with the inescapable fact that the federal scheme is not a remedy but a benefit program, demonstrate the lack of requisite link between any problem Congress has identified and the program it mandated.

Id. at 745.

The net result: even had Nevada allowed for gender-neutral leave to care for an ill family member, it would still have been liable for money damages under the FMLA's abrogation of Eleventh Amendment immunity because the Supreme Court did not consider whether the State's past history was good or bad on this issue. This is especially noteworthy because, as Justice Kennedy points out, it seems to contradict the Court's holding in Garrett that "Congress's ¤5 authority is appropriately exercised only in response to State transgressions." Garrett, 531 U.S. at 368.

3. When does the Ex parte Young exception apply?
In Young, the Supreme Court found a remedy "that the parties interested may resort to, by going into a federal court of equity, in a case involving a violation of the Federal Constitution, and obtaining a judicial investigation of the problem, and, pending its solution, obtain freedom from suits, civil or criminal, by a temporary injunction, and if the question be finally decided favorable to the contention of the company, a permanent injunction restraining all such actions or proceedings." Ex parte Young, 209 U.S. 123, 149 (1908).

The Supreme Court

a. The baseline for these cases is the general rule set forth in the landmark case of Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). In Seminole Tribe, the Supreme Court overruled its prior holding in Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989), and held that Congress could not abrogate State sovereign immunity under any exercise of its Article I powers. That decision, although decided by only a 5-4 vote, effectively closes the door to any suits seeking damages for State transgressions of federal law enacted pursuant to Congress's Article I powers. The exception is the Ex parte Young doctrine, where the plaintiff seeks only prospective injunctive relief from an individual acting in his official capacity in order to end a continuing violation of federal law, and Congress's intent is to allow for such an action.

Seminole Tribe of Florida, the plaintiff in the action, sued alleging a continuing violation of federal law by the Governor in failing to bring the State into compliance with the Indian Gaming Regulatory Act ("IGRA"). The Court found, however, that in passing the IGRA, Congress had included a "carefully crafted and intricate remedial scheme" for plaintiffs to follow. Id. at 73-74. The Court then reiterated the limitation on Ex parte Young: "[W]here Congress has prescribed a detailed remedial scheme for the enforcement against the State of a statutorily created right, a court should hesitate before casting aside those limitations and permitting an action against a State officer based on Ex parte Young." Id. at 74. Applying the rule in the current action, the Court held "that Ex Parte Young was inapplicable to [plaintiff's] suit against the Governor of Florida, and therefore that suit is barred by the Eleventh Amendment and must be dismissed[.]" Id. at 76.

b. The Supreme Court again revisited Ex parte Young in Verizon Maryland, Inc. v. Public Service Commission of Maryland, 535 U.S. 635 (2002). Verizon filed suit seeking injunctive relief from the Commission, claiming that the commissioners, in their official capacities, had violated the Telecommunications Act of 1996 ("Act"). The commissioners had required reciprocal compensation for Internet Service Provider ("ISP") bound calls, which Verizon claimed was in violation of the Act. The Supreme Court, after first determining that it had jurisdiction, next found it irrelevant whether the Commission had waived its immunity, because the case could proceed under Ex parte Young. "In determining whether the doctrine of Ex parte Young avoids Eleventh Amendment bar to suit, a court need only conduct a 'straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective."' Id. at 645 (citing Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 296 (1997)). Finding Ex parte Young permitted Verizon to go forward in its suit against the State commissioners in their official capacities, the Court vacated the Fourth Circuit's determination and remanded.

The Eighth Circuit

In Union Electric Company, discussed supra, the Court held that plaintiff's action was barred by the Eleventh Amendment. The Court went on to find Ex parte Young inapplicable. "We conclude that the Federal Power Act unmistakably evidences an intent to exclude licensees such as Amurense from maintaining an Ex parte Young action seeking to prevent a State from recovering damages to its property resulting from the licensee's negligence in the operation of the licensed power project." Union Electric Company, 2004 WL 912258 at ¦2.

The Tenth Circuit

a. The Tenth Circuit recently revisited Ex parte Young in the case of Ruiz v. McDonnell 299 F.3d 1173 (10th Circ. 2002). There, the Court clarified its interpretation of the doctrine and recent Supreme Court holdings:

"Under the Ex parte Young legal fiction, when an official of a State agency is sued in his official capacity for prospective equitable relief, he is generally not regarded as 'the state' for purposes of the Eleventh Amendment and the case may proceed in federal court." ANR Pipeline Co. v. Lafaver, 150 F.3d 1178, 1188 (10th Cir.1998). The Ex parte Young exception, however, is a narrow one. Elephant Butte Irrigation Dist. v. Dep't of Interior, 160 F.3d 602, 607 (10th Cir.1998). "[It 'has no application against the States and their agencies, which are [immune from suit] regardless of the relief sought.'" Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487, 495 (10th Cir. 1998) (emphasis added) (quoting P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993)); see also Elephant Butte, 160 F.3d at 607 (Ex parte Young doctrine applies only when "lawsuit involves an action against State officials, not against the State"); ANR Pipeline, 150 F.3d at 1187 (any form of relief against State agency, even solely prospective injunctive relief, is barred).

In Will v. Michigan Department of State Police, the United States Supreme Court held that "neither a State nor its officials acting in their official capacities are 'persons' under ¤1983." 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Although the district court declined to address the State Defendants' argument that the CDHS and Ms. McDonnell, acting in her "official capacity," did not qualify as "persons" under ¤1983, "we may affirm on any grounds supported by the record." Duncan v. Gunter, 15 F.3d 989, 991 (10th Cir.1994) (citation omitted). "Because the Supreme Court's precedent in Will mandates that we conclude that neither the CDHS nor Ms. McDonnell, acting in her 'official capacity,' qualify as 'persons' under ¤1983, we affirm the district court's dismissal of those parties on that ground."

Id. at 1182.

b. In Ruiz, the Court only had occasion to determine whether State officials were persons for purposes of ¤1983, but did not have the opportunity to review its Ex parte Young framework. That opportunity arose in Chaffin v. Kansas State Fair Board, 348 F.3d 850 (10th Cir. 2003). Chaffin and several other disabled plaintiffs filed suit alleging "intentional discrimination in violation of Title II of the Americans with Disabilities Act ('ADA')," by defendants the State of Kansas, the Kansas State Fair Board, its members, and the general manager of the Fair. Plaintiffs sought injunctive relief against the Kansas State Fair for alleged failure to comply with the ADA and various regulations promulgated thereunder, including the ADA Accessibility Guidelines. On cross motions for summary judgment, the district court granted plaintiff's motion for partial summary judgment directing all defendants except the State of Kansas to [come into compliance with Title II.] Id. at 853-54.

The defendants appealed and asserted, inter alia, that Title II was not a valid abrogation of the State's Immunity and that Ex parte Young was inapplicable. The Tenth Circuit disagreed. The Court first listed the four-part framework for determining whether Ex parte Young governs a case:

First, we determine whether the action is against State officials or the State itself. Second, we look at whether the alleged conduct of the State officials constitutes a violation of federal law. Third, we assess whether the relief sought is permissible prospective relief or analogous to a retroactive award of damages impacting the State treasury. Finally, we analyze whether the suit rises to the level of implicating "special sovereignty interests."

Id. at 866 (citing Robinson v. Kansas, 295 F.3d 1183, 1191 (10th Cir. 2002)).

The court found plaintiffs met all the criteria to proceed under Ex parte Young and affirmed the District Court's holding.

II. Qualified Immunity for State Officials

Generally, States as sovereigns are immune from suit. However, where sovereign immunity has been constructively avoided by suing a State official, the defense of qualified immunity can be raised. Qualified immunity may relieve the official from defending the suit, or, where there are questions of fact that preclude a determination prior to trial, shield him from damages.

Government officials who perform discretionary functions are entitled to qualified immunity from civil damages, provided their conduct does not violate clearly established rights which a reasonable government official would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Under the shifting burden framework now in place, when a government official raises qualified immunity, the burden shifts back to the plaintiff to establish that (a) defendant's conduct violated a federal constitutional or statutory right and (b) the right was clearly established at the time of the conduct. Saucier v. Katz, 533 U.S. 194, 201 (2001). Most issues now litigated concern whether the right in question is clearly established.

The Supreme Court

a. In Groh v. Ramirez, 124 S.Ct. 1284 (2004), the Supreme Court examined a claim for qualified immunity asserted by an ATF agent who executed a facially invalid warrant. The Court followed the two part analysis that has become standard: (1) was there a constitutional violation; and (2) was the right transgressed clearly established?

Having concluded that a constitutional violation occurred, we turn to the question whether petitioner is entitled to qualified immunity despite that violation. See Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). The answer depends on whether the right that was transgressed was "clearly established" - that is, "whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).

Given that the particularity requirement is set forth in the text of the Constitution, no reasonable officer could believe that a warrant that plainly did not comply with that requirement was valid. See Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ("If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct").

Id. at 1293.

b. A second case that illustrates one of the problems for State officials defending ¤1983 claims is Bunting v. Mellen, 2004 WL 875266 (unpublished 2004). The Petitioner, Superintendent at the Virginia Military Institute ("VMI"), filed for a writ of certiorari to review the Fourth Circuit's finding that VMI's before-dinner prayer was unconstitutional. Plaintiffs sought monetary, declaratory, and injunctive relief, under ¤1983, but the District Court granted summary judgment only on the prospective relief, finding defendants were entitled to qualified immunity. The Fourth Circuit upheld that determination, finding that under the two-part test, a constitutional violation had occurred, but it was not clearly established.

Justice Stevens, joined by Justices Ginsburg and Breyer, issued an opinion respecting the Court's denial of certiorari. The problem, he thought, was the "byproduct of an unwise judge-made rule under which courts must decide whether the plaintiff has alleged a constitutional violation before addressing the question whether the defendant State actor is entitled to qualified immunity." Id. at 1. But that problem aside, the three-justice block would have denied certiorari for two other reasons.

Justice Scalia, joined by the Chief Justice, saw the issue before the Court as worthy of certiorari and echoed the concerns of lower courts. "Two Circuits have noticed that if the constitutional determination remains locked inside a ¤1983 suit in which the defendant received a favorable judgment on qualified immunity grounds, then 'government' defendants, as prevailing parties, will have no opportunity to appeal for review of the newly declared constitutional right in higher courts." Id. at 4 (citing Horne v. Coughlin, 191 F.3d 244, 247 (2nd Cir. 1999) (quoted in Kalka v. Hawk, 215 F.3d 90, 96 (DC Cir. 2000). As Scalia points out, and Stevens and Breyer had in previous dissents, once a court makes the part-one determination, the right is subsequently "clearly established," effectively forcing the defendant to either (1) refrain from infringing the (possibly erroneously decided) "clearly established" right or (2) challenge that behavior on the hope that the case will be accepted on appeal, but at the risk of losing its claim of "good-faith" qualified immunity.

c. A third case of relative importance is Hope v. Pelzer, 536 U.S. 730 (2002), where the Court considered a prisoner's ¤1983 action alleging violation of his Eighth and Fourteenth Amendment rights against two prisoner guards. The inmate was allegedly handcuffed to a hitching post on two occasions (once for seven hours) without access to water or an opportunity to use the bathroom. The district court held that the guards were entitled to qualified immunity and the Eleventh Circuit affirmed. The Supreme Court, by a 6-3 decision, reversed and held that the qualified immunity defense was precluded. Most importantly, the Supreme Court found that the Court of Appeals had applied an erroneous standard in determining whether a right was "clearly established." The Circuit Court had stated that "the federal law by which the government official's conduct should be evaluated must be preexisting, obvious and mandatory," and established not by "abstractions," but by cases that are "materially similar" to the facts in the current case. Hope v. Pelzer, 240 F.3d 975, 981 (11th Cir. 2001). The Court continued that though the facts in the two cases on which plaintiff relied were "analogous," they were not "materially similar." Id.

The Supreme Court flatly rejected this standard and stated "the salient question that the Court of Appeals ought to have asked is whether the state of the law in 1995 gave respondents fair warning that their alleged treatment of Hope was unconstitutional." Pelzer, 536 U.S. at 741. The Supreme Court, applying the "fair warning" test, then found that the prison guards did have fair warning so as to preclude a defense of qualified immunity. Id. at 746.

The Tenth Circuit

In Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004), the Court reviewed the purpose and criteria for qualified immunity in the context of a plaintiff's claim of First Amendment violations. Plaintiff Axson-Flynn, a Mormon, was enrolled in the University of Utah's Actors Training Program ("ATP"). She steadfastly refused to utter "fuck" or take God's name in vain. The defendants, University professors, apprised plaintiff that her refusal to utter either word would stunt her growth as an actor. Plaintiff maintained her position, and during her second semester she was advised that if she continued to do so, she would be asked to leave the program. Plaintiff then filed suit under ¤1983 alleging violations of both the free speech and free exercise clauses of the First Amendment. The defendants asserted they were entitled to qualified immunity. The Court disagreed.

When a defendant makes a qualified immunity claim on summary judgment, the plaintiff has the burden initially to make a twofold showing: First, the plaintiff must show that the defendant's alleged conduct violated the law. Second, the plaintiff must show that the law was clearly established when the alleged violation occurred. In order to satisfy his or her burden to show that the law was clearly established, the plaintiff need not produce a factually identical case, but may instead show that there is a Supreme Court or Tenth Circuit opinion on point, or that his or her proposition is supported by the weight of authority from other courts. This analysis "must be undertaken in light of the specific context of the case, not as a broad general proposition." Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)

Once the plaintiff makes this showing, the defendant bears the usual burden of a party moving for summary judgment to show that there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of law. "More specifically, the defendant must show that there are no material factual disputes as to whether his or her actions were objectively reasonable in light of the law and the information he or she possessed at the time."

Id. at 1299-1300 (several internal citations omitted for clarity).

Applying these criteria, the Court found that the defendants were not entitled to qualified immunity on either plaintiff's free speech claim or her free exercise claim, because there were genuine issues of material fact concerning the objective reasonableness of the defendants' actions on both claims.

1. For a much more detailed and precise discussion, see Justice Kennedy's majority opinion in Alden v. Maine, 527 U.S. 706 (1999).

2. Even where a plaintiff seeks only prospective relief against a State for a continuing violation of federal law, the action may nevertheless be dismissed where relief against the State "implicates special sovereignty issues" and is the "functional equivalent" of relief that would otherwise be barred by the Eleventh Amendment. E.g, Idaho v. Coeur d'Alene Tribe, 521 U.S. 261 (1997) (Court denied relief under Ex parte Young because the plaintiff's suit was "the functional equivalent of a quiet title action which implicates special sovereignty interests.") and ANR Pipeline Co. v. Lafaver, 150 F.3d 1178, 1186 (10th Cir. 1998) (special sovereignty issues exist when a plaintiff seeks an injunction against a State property-tax system because "it is impossible to imagine that a State government could continue to exist without the power to tax").

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