Frew v. Hawkins - Oral Argument - October 07, 2003 Page 2

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

Antonin Scalia:

You have the second ground, which is just if you have authority to enter the decree, you have authority to enforce the decree.

Now, for purpose of that argument, does it make any difference to you whether the State Attorney General is there or whether these officials have the power to represent the State?

Susan Finkelstein Zinn:

--Under our second argument, our position is that since the decree is a remedy ordered in a valid Ex Parte Young case, it provides prospective relief only from alleged ongoing violations of Federal law.

The... the remedy is proper.

William H. Rehnquist:

And therefore it's consistent with the Eleventh Amendment without any waiver.

Susan Finkelstein Zinn:

Correct.

The Eleventh Amendment is not engaged for that... for that--

David H. Souter:

Can you tell us how it worked?

The representative of the Attorney General was in court and he stands up and he says, we insist on sovereign immunity, and the judge say, all right, that's act one.

It's closed.

And then did the same officials stay and they say, well, now we're here on the Eleventh Amendment?

I mean, how... how did this work?

And--

Susan Finkelstein Zinn:

--In... in this case--

David H. Souter:

--And let... let me just say also there's no excerpt of record or docket entry.

The only thing I have is the consent decree.

Was there any order saying the consent decree dated so and so is hereby entered as the judgment of the court?

I mean, can I find that anywhere?

Susan Finkelstein Zinn:

--Yes, Your Honor.

The... the lodging has the... as its last page, the order to correct the consent decree which states that the... the order was... the unopposed motion to... to correct the consent decree has merit and should be granted.

The decree was entered as the court's order in February of 1996.

Ruth Bader Ginsburg:

And--

--There was no separate order.

It was just this consent decree that's in the lodging.

That's--

Susan Finkelstein Zinn:

That's correct.

David H. Souter:

--that's it.

Susan Finkelstein Zinn:

That's correct.

David H. Souter:

Okay.

Now maybe we can go back and you can tell me who the... was there an act one and an act two, act one being the State asserts immunity, act two being the Eleventh Amendment, or... or were the same parties before the court at all times?