Frew v. Hawkins - Oral Argument - October 07, 2003

Frew v. Hawkins

Media for Frew v. Hawkins

Audio Transcription for Opinion Announcement - January 14, 2004 in Frew v. Hawkins

Audio Transcription for Oral Argument - October 07, 2003 in Frew v. Hawkins

William H. Rehnquist:

Ms. Zinn.

Susan Finkelstein Zinn:

Thank you, Mr. Chief Justice, and may it please the Court:

Sovereign immunity should not bar enforcement of the consent decree in this case for two reasons.

First, when State officials ask a district court to enter a consent decree, they submit their rights concerning the decree for judicial determination, thereby waiving any possible claim for objection on the basis of immunity.

Second, the decree in this case provides prospective relief to protect the supremacy of Federal law, exactly as envisioned by Ex Parte Young.

Antonin Scalia:

May I ask on... on the first point?

You say when State officials submit to... to a decree.

It's... it's immaterial, as far as you're concerned, whether the State Attorney General defended the... the suit or represented these officials.

Is that right?

Susan Finkelstein Zinn:

No, it's not immaterial.

The... Texas' Attorney General is authorized by the legislature to represent the State and its employees--

Antonin Scalia:


I understand that, but suppose he hadn't been and suppose it is just the State officials who appeared in an Ex Parte Young suit.

They're... they're sued.

There's no other State official who takes part in the proceedings.

Nonetheless, they enter into a consent decree.

Is it your submission that even without any other participation by anybody else in the State, that consent decree binds not just them, but I gather you say future officials in... in their offices?


Susan Finkelstein Zinn:

--Unrepresented by the State Attorney General.

Antonin Scalia:


You would--

--Well, but wouldn't... wouldn't there be a question of fact in that case?

I mean, it would be odd, I... I would suppose not to have the State Attorney General there, and... and wouldn't the... if I were a trial judge, I'd say, well, is this the State that is submitting this... this settlement?

I mean, wouldn't... wouldn't there be, theoretically at least, a fact question in Justice Scalia's circumstances?

Susan Finkelstein Zinn:

Fact and a matter of law, Your Honor.

The question under this Court's decision recently in Lapides would be whether those officials are authorized to represent the State in court, even absent their attorney.

That would be so unusual in Texas I can't imagine it even happening, but--

Antonin Scalia:

No, but that... but that's a waiver theory.

I mean, if you're proceeding on a waiver theory, you... you need the State there.

But let's assume you're not proceeding on the waiver theory.