Northern Ins. Co. of N.Y. v. Chatham County – Oral Argument – March 01, 2006

Media for Northern Ins. Co. of N.Y. v. Chatham County

Audio Transcription for Opinion Announcement – April 25, 2006 in Northern Ins. Co. of N.Y. v. Chatham County

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John G. Roberts, Jr.:

We’ll hear argument next in No. 04-1618, Northern Insurance Company of New York v. Chatham County, Georgia.

Mr. Estrada.

Miguel A. Estrada:

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

In this admiralty case, the Eleventh Circuit held that Chatham County, a political subdivision of the State of Georgia, is entitled to sovereign immunity in Federal court.

That is wrong for at least two reasons.

First, for well over a century, this Court consistently has held that counties and other political subdivisions are not entitled to sovereign immunity.

And second, in the specific context of in personam admiralty cases, the same rule has been recognized for over 100 years.

To go to my first point, in Lincoln County v. Luning, decided in 1890, this Court squarely held that counties and other political subdivisions are not entitled to sovereign immunity.

There are three, or at least three, significant aspects of Lincoln County that bear emphasis.

The first one is that even by 1890, the Court was able to say that in its own cases it could see decades of case law where counties had been a defendant without any objection being raised.

The second was that an important aspect of the Court’s reasoning was the recognition that when a county is sued, the State is not a real party in interest, not the real party in interest, which is another way of saying that the county is not an arm of the State, the issue before here us today.

Ruth Bader Ginsburg:

Can a county be an arm of the State for some things?

Miguel A. Estrada:

I am not aware of any county that has been organized so as to meet the requirements that this Court set forth in Hess and other cases for an arm of the State.

This is, of course, not a question of labeling.

It is possible that the… that a… that a particular State would associate so closely with a county, so closely control its… its acts, and be on the hook for its liabilities, that under this Court’s cases it could be an arm of the State, but that is not the case here.

In fact–

John G. Roberts, Jr.:

I assume it’s… I assume it’s sort of a… a case by case inquiry.

In other words, the county could be an arm of the State for some purposes but not others.

Miguel A. Estrada:

–That is… that is a possibility, Mr. Chief Justice.

I’m not aware this county would meet that inquiry with respect to what we have here.

What we have in this case is essentially two propositions.

One is that the county, like every other county in the country, exercises a slice of State power, and that was something that was found unremarkable by this Court in Lake Country Estates.

And the second one is that this county, like many other organs of government, may get funding, even substantial funding, from the State, and again, that was found unremarkable in Mt.

Healthy by this Court.

What is controlling here is that the county, like most counties or maybe all counties, enjoys a significant amount of autonomy, has the power under the State law to raise its own revenues through taxes and bonds, and that the State is ultimately not liable for its debts.

And under… under those factors, the county is unable to meet any definition of arm of the State that has ever been articulated by this Court’s cases.

Anthony M. Kennedy:

Is… is the failure to extend immunity to counties and municipal entities in a State just a historical relic?

It depends on semantics.

Or is there some normative or good government policy that dictates the distinction?

Miguel A. Estrada:

Well, I think as a… as a fundamental feature of the Federal system and… and the plan of the Convention, that the States came together as sovereigns to form a new country, and under this Court’s cases, the immunity that they retain is called residual because it is recognized that insofar as they did not relinquish it to the National Government, they kept it.

Miguel A. Estrada:

There is no historical record of the founding that contemplates that counties came to the Convention as sovereigns.

John G. Roberts, Jr.:

It’s just a… it’s just a close textual reading of the Eleventh Amendment.

Right?

Miguel A. Estrada:

Well–

John G. Roberts, Jr.:

It says a State.

It doesn’t say county.

Miguel A. Estrada:

–That might be the end of the case, in fairness, Mr. Chief Justice, if the Eleventh Amendment were the source of the sovereign immunity that this Court has recognized, but we know from cases like Alden v. Maine that the Eleventh Amendment is merely an example of the structural immunity that is implicit in the structure of the Constitution.

Anthony M. Kennedy:

So it’s… it’s a matter of respecting the dignity of the States because they participated in the Convention, the plan of Convention?

Miguel A. Estrada:

And because they came to the Convention as sovereigns.

Let me say that–

Antonin Scalia:

Well… I… I guess, in… in going beyond the Eleventh Amendment, we were appealing to an understanding of sovereignty that existed at the time of the framing.

Miguel A. Estrada:

–Exactly right.

Antonin Scalia:

And at the time of the framing, counties in England did not enjoy the… the sovereign immunity of the king, did they?

Miguel A. Estrada:

I do not believe that counties anywhere at the time of the founding enjoyed the sovereign immunity that was… that has been recognized by this Court’s cases.

And you’re right, Justice Scalia, that this has been reflected in… in the Federalist Papers, 81, by Hamilton.

It was clear, at least to some of the Founders, that this was a feature that need not be stated in the Constitution in order to recognized.

Anthony M. Kennedy:

So it’s a historical relic based on the dignity of the State, or the king in one case, and the corresponding lack of dignity of the entities on the other?

Miguel A. Estrada:

Well, it is… it is what the history was and what the plan of the Convention was, and it’s also a recognition, even functionally, that we’re talking about sovereign immunity.

And I think most common sense understandings of what a sovereign is would imply at least the ability to prescribe law for the government of others without having to draw your authority for that from a higher source and without being accountable to a higher source.

A State within the respective sphere would meet that requirement, but that would not be true of counties.

I will point out, as my third point with respect to the Lincoln County case, is that the… the case came down March 3rd, 1890, which was the same day that the Court handed down Hans v. Louisiana.

And that is significant because, as the Court is aware, the holding of Hans has been the subject of significant disagreement over the years since by members of past and current courts, and many members of the courts have viewed Hans as an unwarranted extension of sovereign immunity.

If the Court was not prepared to extend immunity to counties on the day that it ruled on Hans, it seems hard to see why it would do it now.

And in fact, the history of this Court’s cases since then reflects an almost inflexible understanding, again and again, that counties and political subdivisions are not entitled to the State’s immunity.

With respect to my second point–

Anthony M. Kennedy:

Would you… would you say thoughtful rather than inflexible?

[Laughter]

Miguel A. Estrada:

–I will settle for thoughtful, but I’m hoping for inflexible.

[Laughter]

With respect to my second point, Mr. Chief Justice, Workman v. City of New York squarely dealt with the question whether a political subdivision, a… a municipality made up of four counties in that case, was entitled to immunity in an admiralty suit in personam, and the Court concluded that the answer was no.

Miguel A. Estrada:

Now, the only argument I have heard for why Workman is not controlling in this case has been that somehow in Ex parte New York No. 1, this Court cast doubt on that holding.

But if you look at the portion that is being relied on, all that the Court said in Ex parte New York was it cited one of the distinctions between the New York case and Workman, when it could have cited two.

That’s not enough to override what the case actually says.

And one of the reasons that I started with the Luning County is that even if there were any doubt on the question or even if Ex parte New York have cast enough doubt under Workman, despite the uniform understanding since Workman that that’s what the rule is, the fact that this Court in every other context of sovereign immunity has consistently held that counties are not entitled to sovereign immunity ought to be dispositive of the question there as well.

Antonin Scalia:

Do you… do you agree that… that it’s possible that an entity can have sovereign immunity in admiralty where… where the same entity would… would not have it elsewhere?

Miguel A. Estrada:

No–

Antonin Scalia:

I find that discussion quite perplexing.

Miguel A. Estrada:

–I do not believe that is possible, and with respect to the argument to that effect that is being advanced by respondent, a close reading of the cases being cited will disclose that they’re not, in fact, unique to admiralty.

They are common law cases about what the… what the power–

Antonin Scalia:

They’re talking about immunity in most of the cases, not necessarily–

Miguel A. Estrada:

–Sovereign immunity.

Antonin Scalia:

–not necessarily sovereign immunity.

Miguel A. Estrada:

That’s right.

And… and another important distinction, Justice Scalia, is that even if one could unearth a… a body of case law that recognized municipal immunity at the time of the founding, it would not become sovereign immunity, and that’s the only issue that is… that is in contention here.

John Paul Stevens:

But… but there is a textual basis for drawing a distinction between admiralty and law and equity.

The Eleventh Amendment doesn’t extend to… to admiralty.

Miguel A. Estrada:

That is right, Justice Stevens.

And if this Court had held that the Eleventh Amendment were the source or even the sole source of sovereign immunity, that would be a compelling argument.

The main holding of the Ex parte New York No. 1 case is, indeed, that that limitation does not apply because, as understood by Hans, which had been ruled on some 31 years earlier, the sovereign immunity really comes from the structure of the Constitution.

And the state of this… this Court’s doctrine is that the Eleventh Amendment’s sole purpose was to overrule the holding in Chisholm, and that but for the fact that Chisholm came down, the Eleventh Amendment never… if the Eleventh… if the Eleventh Amendment had never been enacted, every sovereign immunity case would come out the same way.

That is the current understanding by the Court about how the doctrine works.

John Paul Stevens:

Alden tells us what the understanding of the Founders was.

Of course, it’s the understanding of some of the Founders.

It did not include those who were in the majority in Chisholm.

Miguel A. Estrada:

That is… that is true, though with respect to Chisholm and the issue in this case, Justice… Justice Stevens, it is very instructive that both sides of the argument in the Chisholm case understood that the issue was whether States may get sovereign immunity.

Both sides conceded that political subdivisions didn’t.

Chief Justice Jay for the majority argued that it made no sense to extend sovereign immunity when a… where… where a city like the size of Philadelphia was the same size and had as many inhabitants as it did of Delaware, and that’s what he argued.

And Justice Iredell, whose views have come to command a majority of the Court, saw it to his argument to distinguish political subdivisions from States, so that even though this Court’s first holding was not until 1890, it was embedded in the understanding at the founding, as… as shown even by Chisholm, that political subdivisions were not entitled to sovereign immunity.

I would like to reserve the remainder of my time, if I may, Mr. Chief Justice.

John G. Roberts, Jr.:

Thank you, counsel.

John G. Roberts, Jr.:

Mr. Himmelfarb.

Dan Himmelfarb:

Mr. Chief Justice, and may it please the Court–

States enjoy a constitutionally protected immunity from suit, but cities and counties do not.

That principle has been established by an unbroken line of precedent dating back to the 19th century and was applied to an admiralty suit more than 100 years ago in Workman v. City of New York.

Both Workman and the principle it applied answered the question presented in this case.

Workman held that, as a matter of the Federal law of admiralty, a political subdivision is not entitled to immunity from suit.

In the course of deciding that question, the Court explained that if the government entity defendant in an admiralty suit were a sovereign, it would be entitled to immunity, not as a matter of admiralty law, but as a matter of the law of sovereign immunity, in which case the Court would be without jurisdiction.

The Court went on to say, however… and this is at page 570 of the opinion… the municipal corporation of the City of New York unlike a sovereign was subject to the jurisdiction of the Court.

Workman’s holdings resolved the issue in the case.

But the result would be the same even if Workman had never been decided.

From the Lincoln County case in 1890 through the Richland County case in 2003, this Court has repeatedly held that States, but not cities or counties, are sovereign and that States, but not cities or counties, are therefore entitled to sovereign immunity.

A city or county is no more a sovereign in an admiralty case than it is in any other type of case.

The theory on which the court of appeals apparently relied was that not only States but what it called political subdivisions of States are entitled to sovereign immunity, at least when the… the political subdivision is exercising a power delegated by the State.

But that’s no different from saying that cities and counties are, after all, entitled to sovereign immunity because every city or county is a political subdivision of a State and every city or county exercises power delegated by the State, what this Court has called a slice of State power.

So the apparent rationale of the court of appeals is just flatly inconsistent with more than a century of this Court’s precedent.

John G. Roberts, Jr.:

You don’t doubt that a county could have sovereign immunity if it qualified as an arm of the State in a particular instance.

Dan Himmelfarb:

That’s absolutely correct, Mr. Chief Justice.

Of course, as this case comes to the Court, all agree that Chatham County is not an arm of the State for purposes of this Court’s constitutional sovereign immunity doctrine.

So the only issue in this case is whether there is some other ground on which the county would be entitled to immunity, and there’s none.

Respondent’s theory is that there are two distinct notions of sovereign immunity, what it calls Eleventh Amendment immunity and what it calls residual sovereign immunity.

A fundamental flaw in that theory is that there is only one doctrine of… of constitutional sovereign immunity.

What respondent calls residual sovereign immunity and what this Court has sometimes identified as the immunity associated with the residuary sovereignty that comes from Federalist 39 is the doctrine of constitutional sovereign immunity.

Antonin Scalia:

Hans… Hans is residual sovereign immunity.

Dan Himmelfarb:

That’s absolutely right, Justice Scalia, and every case that–

Antonin Scalia:

Some… some of our brethren don’t… don’t agree with it.

They don’t like the residue and would limit it to the Eleventh Amendment.

Dan Himmelfarb:

–Well–

Antonin Scalia:

If you’re going to have a residue, Hans is it I suppose.

Dan Himmelfarb:

–That’s true, Justice Scalia.

The… the theory of residual immunity is that before the Constitution was established, States were sovereign.

Dan Himmelfarb:

When they entered the union, they surrendered some aspects of their sovereignty and retained other aspects of it.

One aspect that they retained was an immunity from suit.

A city or county is not entitled to sovereign immunity because it wasn’t a sovereign at the time of the founding and thus had no immunity… no sovereignty either to surrender or to retain.

From that–

John G. Roberts, Jr.:

Your… your friend in the… in the red brief, though, reviews a lot of old cases, suggesting at the time of the founding, that counties were not subject to suit.

Dan Himmelfarb:

–Well, I don’t think the cases that respondent cites do, in fact, stand for that proposition.

In fact, the principal authority upon which respondent relies, the Men of Devon case, which is an English case, so far as I can tell, was neither an admiralty case nor a case that accorded immunity to the county.

The case, as far as I can tell, was a straightforward negligence case, and the holding of the case was that inhabitants of the county, as distinct from the corporate entity, the county itself, cannot be held liable in a negligence suit.

So I don’t think that that case provides any support for respondent’s theory.

Antonin Scalia:

Nor could charities.

They were immune as well.

But it… it certainly wasn’t sovereign immunity.

Dan Himmelfarb:

That’s absolutely right, Justice Scalia.

At the time of the founding, various entities, including sub State governmental entities, were entitled to some forms of immunity.

This Court traces the history of municipal immunity at some length in the Owen v. City of Independence case.

But as… as you just pointed out, Justice Scalia, whatever immunity that was, it was not sovereign immunity, and there’s no basis for constitutionalizing it in the context of this Court’s constitutional sovereign immunity doctrine any more than there’s a basis for constitutionalizing the immunity that a private entity or an even an individual might have enjoyed at the time of the founding.

John Paul Stevens:

May I ask you this?

Supposing a State passed a statute that said that the following counties shall hereby be designated arms of the State and be entitled to immunity, period.

Would that provide an adequate defense, do you think?

Dan Himmelfarb:

That in and of itself, Justice Stevens, would not.

This Court’s cases make clear that in deciding whether an entity is an arm of the State, there are three principal considerations to take into account.

You’ve identified one of them, which is the classification of the entity under State law.

The other two, which are probably more important, are whether the State would ultimately be liable for a judgment against the political entity and also the extent of control exercised by the State over the entity.

It’s important to point out, with respect to the latter of those two considerations, that control in this context doesn’t mean simply that the county has been delegated authority by the States since, after all, all counties are… are delegated authority by the State.

It means that there’s more of a day to day control, for example, that it is the Governor who appoints the members of the commission that governs the particular entity, the Governor who has the power to remove them.

The Governor may have veto power.

That’s the sort of considerations that courts have taken into account in deciding whether the control element of the arm of the State inquiry is satisfied.

There is no basis for any notion of constitutional sovereign immunity beyond the one identified by this Court.

Consequently, there’s no basis for any arm of the State test other than that applied by the Court in its cases involving the one doctrine of constitutional sovereign immunity.

The only other possibility that would entitle respondent to prevail in this case would be some notion of non constitutional immunity unique to admiralty.

Dan Himmelfarb:

But, of course, whatever else Workman held… and respondent takes the position that Workman did not decide the constitutional issue.

We think it did, for the reasons I’ve already stated.

But whatever else it held, it clearly held that, as a matter of the Federal law of admiralty, political subdivisions are not entitled to immunity from suit.

So the Court could not adopt a non constitutional rule of immunity limited to the admiralty context without overruling Workman.

Respondent does not ask the Court to do that.

And indeed, so far as I can tell from reading respondent’s brief, it does not even advocate a non constitutional rule of immunity for admiralty cases.

So there’s no non constitutional basis for immunity.

The only constitutional basis for immunity is when the political entity is an arm of the State.

As this case comes to the Court, all agree that Chatham County is not.

It necessarily follows, therefore, that Chatham County was not entitled to immunity and that the judgment of the court of appeals should be reversed.

Antonin Scalia:

The question presented is… is only sovereign immunity, isn’t it?

It’s… we don’t have to decide whether there might be some other type of immunity.

Dan Himmelfarb:

That’s right.

That’s right, Justice Scalia.

To the extent that sovereign immunity is understood to mean constitutional immunity, as distinct from some judge made or statutory immunity, that’s right.

John G. Roberts, Jr.:

Thank you, Mr. Himmelfarb.

Mr. Hart.

R. Jonathan Hart:

Mr. Chief Justice, may it please the Court–

The county that has been expressly delegated the core sovereign function by the State, unique or sovereign function, such as navigable waters, is entitled to residual sovereign immunity in an in personam admiralty action.

Justice Ginsburg just asked a question about counties in cases.

I know of no case where a State has delegated a core sovereign function, cloaked the entity with immunity, in which this Court has ruled is not the arm of the State.

Ruth Bader Ginsburg:

Who pays judgments?

Who pays judgments against the county?

R. Jonathan Hart:

Who pays judgments against the county is initially probably the county, but under Georgia law, the department of DOT… Department of Transportation has a fund in which they can contribute towards that.

And if you look in… and I think funding matters less here than… than the fact that these big projects are generally a collage of funding issues.

You have State and Federal money usually mixed in.

So you’re in a situation where, you know, if you went back 50 years ago and looked at funding, it might be very definitive.

In these days and times, if you look at projects, you know, you got money coming from all sources, and if you start tracing the… the money, you can go in six different directions.

Antonin Scalia:

Mr. Hart–

R. Jonathan Hart:

And I think the dignity interest… excuse me.

Antonin Scalia:

–Mr.–

Ruth Bader Ginsburg:

I thought that was one of the main indicia of whether an entity had been set up as an arm of the State, that is, the State would be directly liable.

R. Jonathan Hart:

Well, I think the Hess case says that… that it… that it’s one of the default issues, and then you go to the dignity interest and the funding interest.

But if you go back and look at the California Regents case v. John Doe, in that case, it shows and explains why funding becomes not a whole lot in the way of meaningful factors–

Antonin Scalia:

–Well, core… core government functions isn’t… isn’t the test either.

I mean–

R. Jonathan Hart:

–I understand that.

Antonin Scalia:

–you know, the Federal Government and I think some States gave… gave railroads the power to condemn land.

Did that make railroads sovereigns entitled to sovereign immunity?

I don’t think so.

R. Jonathan Hart:

No, sir, I wouldn’t argue that.

Antonin Scalia:

So the mere fact that… that your county is exercising some, quote, core government functions, that… that doesn’t… doesn’t get you there.

R. Jonathan Hart:

Well, I think you look at the… the history, you look at the dignity of the State, and you look at the functional realities of State management.

And if you look at the history, counties were immune at common law in England.

Counties were immune at the time of the framing.

John G. Roberts, Jr.:

That was… in many of those cases cited in your brief, it was because the duties they were performing they were performing pro bono publico.

R. Jonathan Hart:

Sure.

John G. Roberts, Jr.:

And the doctrine extended immunity to them on that basis, not… not as sovereigns.

R. Jonathan Hart:

Well, it extended… it extended to them as part of an overall sovereignty… sovereign immunity picture.

Antonin Scalia:

It wasn’t sovereign immunity.

It was… charities had immunity until very recently.

Some States still had it when I was in law school.

You couldn’t sue a charity for tort.

R. Jonathan Hart:

I still think if you go back and look at these core functions and if you… if you define that as something that’s being delegated by the State where the State says we want you to have sovereign immunity, then that’s something that should be respected as part of the dignity of the State.

In this particular case, Georgia is extremely strong on that point.

It’s in the constitution that… that counties can handle bridges.

It’s in the constitution that they’re immune.

You can only waive it by an act of the legislature.

Samuel A. Alito, Jr.:

What… what other sorts of torts would this apply to, as applied to Chatham County?

If Chatham County–

R. Jonathan Hart:

Torts.

Samuel A. Alito, Jr.:

–were sued, you know… if Chatham County were sued for something done by a law enforcement officer, would your theory apply?

R. Jonathan Hart:

I think the… I think… no, sir, I don’t think under… like a 1983 action or a Fourteenth Amendment exception under section 5, I don’t think the immunity would reach that far.

I think the county would still be exposed to the liability there under that case law.

I don’t think you have to do away with what you have under the Fourteenth Amendment… excuse me… under the Eleventh Amendment or the case laws thereunder.

But I don’t think that those… those cases under there define the whole sovereign immunity of the general principles–

Samuel A. Alito, Jr.:

Well, has the Eleventh Circuit or did the old Fifth Circuit ever apply this doctrine in any area outside of admiralty?

R. Jonathan Hart:

–Not that I am aware of.

Antonin Scalia:

What are you relying on in the Georgia constitution?

It doesn’t mention counties, does it?

It just says except as specifically provided in this paragraph, sovereign immunity extends to the State and all of its departments and agencies.

R. Jonathan Hart:

Yes, sir.

And there’s strong case law, the Millwood case, that says basically counties are part of the sovereign of the State.

And as recently as last year, in a lawsuit against the Department of Corrections, the… the Attorney General of the State argued that the county was a sovereign of the State, part of the State, took the position it couldn’t be sued because a sovereign can’t sue itself.

Antonin Scalia:

There can be no… no… well, I assume you have a… a tort… tort claims act that waives sovereign immunity in some circumstances.

R. Jonathan Hart:

Yes, sir.

Antonin Scalia:

But apart from that, you can’t sue counties in tort.

R. Jonathan Hart:

You can… generally in the… in… the county… as a State law claim, no, unless there’s a waiver.

Now, the legislature has waived… there’s been quite a few waivers in the last year.

They just waived in automobile insurance cases, for example.

And… and that’s a matter of the State.

Ruth Bader Ginsburg:

To what… what other area would this apply?

If the county has sovereign immunity, how about the county school board?

R. Jonathan Hart:

We would contend that the core sovereign function has to truly be a core sovereign function and it has to be supported by some type of history, some type of… of State dignity there and… and some reality–

Ruth Bader Ginsburg:

And education would not fall–

R. Jonathan Hart:

–And we would not put education in that class.

If you go back and look at the history at the time of framing, you have to start looking at what government did do and didn’t do.

Now, you could do a historical analysis, and maybe I would be wrong and the history would show that education was important.

But my understanding is education at that time was probably a pretty local matter.

Ruth Bader Ginsburg:

–How about the sanitation department?

R. Jonathan Hart:

That would get sort of iffy there from the standpoint that public health, quarantines, those type of services for disease were handled by the State and were handled in a… in a manner that you might be able to define it as a core function, but that would probably be a stretch.

This is a narrow exception and we think it deserves that insofar as the navigable waters.

John G. Roberts, Jr.:

Well, I’m not sure that operating bridges at the time of the framing was a core sovereign function.

R. Jonathan Hart:

Well, it–

John G. Roberts, Jr.:

There are an awful lot of private bridges.

R. Jonathan Hart:

–Yes, sir.

The… the exception, though, was at common law, counties could not be liable for the operation and maintenance of bridges, and that was adopted by Georgia prior to the time of the framing and that was the law of the State.

And we would take the position that that survived under this residual sovereign immunity theory.

Antonin Scalia:

Well, that’s bridge immunity, not sovereign immunity.

I mean–

R. Jonathan Hart:

Well, we’re… we’re focusing that–

Antonin Scalia:

–it doesn’t come… it doesn’t come within the Federal Constitution.

R. Jonathan Hart:

–Well, neither does Federal sovereign immunity come textually within the Constitution.

Antonin Scalia:

Well, no, I’m not talking about textually.

I’m talking about in structure.

There’s nothing in the structure that has anything to do with bridges.

R. Jonathan Hart:

The answer to that question is that if you look at the… the function of… of State government and you look at what they define as being important… and in this case, Georgia has defined that as one of the functions under its constitution and under its statutes… then there’s a dignity interest there that ought to be respected insofar as outside that realm.

One of the–

John Paul Stevens:

May I ask this?

Are you suggesting that a county could be an arm of the State for some purposes but not for others?

R. Jonathan Hart:

–Yes, sir, I believe that.

We don’t concede that we might not fit in the… that we could… could not fit in within the arm of the State.

The Court chose in the question presented not to address that issue and asked us to address the issue outside… assuming we were not an… we were a non arm of the State.

And our brief does make some mention of… of the arm of the State analysis within in.

John G. Roberts, Jr.:

But the… the court of appeals has said that you weren’t asserting that you were an arm of the State.

R. Jonathan Hart:

Well, we were asserting that we were… we were immune under residual sovereign immunity and we conceded for… that the county has not generally been recognized under the Eleventh Amendment as being sovereign… as sovereign… having sovereign immunity.

That is not to… and… and we needed some way to distinguish that from the immunity that we’re arguing, the immunity retained by the States.

And we feel that that’s something that could… could have broader parameters than… than the current arm of the State test.

And the focus ought to be on these core functions, history, dignity, and the functionality of the State.

That takes you away from your Eleventh Amendment analysis where you’re dealing with sovereign immunity all the time in… in that context, and you’re now moving to discussing general principles of sovereign immunity outside the context of the Eleventh Amendment in defining those contours, and we feel like this might give you a mechanism by which to do that.

R. Jonathan Hart:

And it’s a very narrow exception, and it would be something that the Court could rule on or the Court could simply rule that counties were immune in in personam admiralty actions, if you wanted to make it even a more narrow ruling.

One of the things that has been argued by the Solicitor General is that there’s a single sovereign immunity, that there’s this unified sovereign immunity.

And it’s… and to the extent that we’re talking about general principles of sovereign immunity, we agree with that.

We do not agree with the part that says that when we deal with Eleventh Amendment arm of the State, that that part defines the whole.

And when you get into a situation of… of how do you define the sovereign… sovereign immunity, you have sovereign immunity at the Federal Government level, and if it’s a single sovereign immunity that you accept and as argued by the… by… by the Solicitor General’s office, then the question becomes, is there a reciprocal sovereign immunity that’s coextensive with Federal sovereign immunity?

And that’s an argument that… that certainly could be made.

It… and it was addressed somewhat or raised somewhat in Alden where they discussed we’re not ready to say it’s the Federal Government is raising sovereign immunity, which they do on a regular basis, that perhaps the States might not have that.

Now, we’re not arguing that the county in any way would have sovereign immunity to the extent of the Federal Government.

We’re saying that insofar as these functions that have a history at common law at the time of the framing and has been consistently recognized by the Supreme Court, navigable waters and the soils thereunder have always been considered to be a sovereign interest of the State by this Court.

If you go back and look at the St. Anthony Falls case, at that time they were dealing with riparian rights, and… and there was a deference to the State in regard to that.

You also had the Coeur D’Alene Indian Tribe dealing with submerged lands, and you recognized the sovereign interests of the State in those situations, and in the Seminole Tribe case, said there’s no exception in regard to carving out an exception to an admiralty immunity.

John G. Roberts, Jr.:

All that establishes is simply that if the State were operating this bridge and if the State were on the hook for any judgments and if the State had control over the people who were making the decisions, that there might be an issue of State sovereign immunity.

R. Jonathan Hart:

Yes, sir.

John G. Roberts, Jr.:

The whole problem is that it’s the county that’s doing all that.

R. Jonathan Hart:

We understand that, but we’re acting on behalf of the State and acting as the State there and–

John G. Roberts, Jr.:

Well, the State doesn’t pay the damages.

R. Jonathan Hart:

–The State–

John G. Roberts, Jr.:

The State doesn’t tell you how to do it.

R. Jonathan Hart:

–The State has the potential to pay damages there through… through the DOT, the Department of Transportation, funds.

Antonin Scalia:

If it wishes.

R. Jonathan Hart:

If it wishes.

I have to concede that point.

But from the… from the standpoint, if you go back to the California Regents case, there wasn’t a whole lot of potential liability there.

Theoretically they may have, but they had a contract.

The State had a contract there in which it was indemnified by… by the Federal Government.

Antonin Scalia:

The State can pay my damages if it wishes.

It just doesn’t happen to have a statute to that effect right now.

But I mean, that… surely, that doesn’t… doesn’t–

R. Jonathan Hart:

Well, we take the position that the funding issue and the control issue ought to be less… outside of the Eleventh Amendment analysis, arm of the State ought to be something that matters less.

The dignity interest ought to matter more.

R. Jonathan Hart:

The funding issue is something that in every major project, you’ve got a collage of funding, and it comes from all different sources.

And to some extent, who pays the bill and how they pay the bill depends on the structure of the deal.

And I don’t think it’s very enlightening, as it was once 50 years ago when things were much simpler.

We’re also talking about, in bridge cases or most building road projects, you have the situation where a lot of times the State comes to one of its entities and says, we’ll give you the money, build a bridge.

We’ll build… build the road.

Quite frequently that happens all the time in larger counties.

If the county does the function that it’s doing for the State–

John G. Roberts, Jr.:

But that’s a different question.

The immunity looks to where the money is going to come from to satisfy a judgment.

I don’t think it looks to where the funding came from in the first instance.

R. Jonathan Hart:

–Well, the… the–

John G. Roberts, Jr.:

It’s the claim on the treasury of the judgment that raises the sovereign immunity issues.

R. Jonathan Hart:

–Insofar as this case goes, there is the potential for payment by the State, and… and that’s about all we can say there.

We’ll have to… we… as Justice Scalia said, is… is there a absolute need for them to pay them?

But… but the practicality of it is usually when they delegate you the function and the State arms you with sovereign immunity and tells you to go out and do that, they will step up to the batter’s box at the time something like that would occur because they have sort of delegated that core function to you to do.

The control issue we feel is something that the dignity issue ought to take precedence over.

The control issue is something that the State decides during the delegation, and if you wish to place an emphasis on the control, then you’re asking… asking basically do you require the State to make a certain kind of delegation.

Earlier we had a question that… that followed up on the issue of if there… if we just did a single function alone, built a bridge without anything else, would that alone create a responsibility on the part of the county.

And I think in… in regard to that, the core function here is the county accepting the responsibility of the State.

Ruth Bader Ginsburg:

What about the South Carolina Supreme Court’s opinion in the Hines case which seems to run counter to your argument?

R. Jonathan Hart:

Yes, ma’am.

The Hines case was an Eleventh Amendment case, number one.

Number two, it… it did state, in the front end of the case, that they would apply the substantive law of admiralty irrespectively of the forum.

But the residual sovereign immunity issue was never argued by either side in the case.

That case went up on… as a result of the granting of a motion to dismiss on a fairly skimpy record there, and the funding issue was never really… really analyzed there.

So we see that as a… a case that typically is an Eleventh Amendment case and there has not been any ruling whatsoever in… in the context of whether there would be residual sovereign immunity.

John Paul Stevens:

Mr. Hart, may I ask this question?

In the… I noticed the opinion is a per curiam opinion of the Eleventh Circuit.

Was the case argued orally in the Eleventh Circuit or was it submitted?

R. Jonathan Hart:

No, sir, it was not.

John Paul Stevens:

It was submitted.

R. Jonathan Hart:

Just submitted.

The–

Ruth Bader Ginsburg:

The… the Eleventh Circuit had a prior decision, didn’t they?

R. Jonathan Hart:

–Yes.

Yes, ma’am.

There had been a similar case arising out of Chatham County, and it went up and was affirmed per curiam, and then there was a short opinion the second time the case went… went… the second case went up, and there was a very short opinion in regard to that, taking deference to their decision in the… in the first opinion and talking a little bit about the residual sovereign immunity issue that we have here.

Antonin Scalia:

–That was an old Fifth Circuit case–

R. Jonathan Hart:

Yes.

There was a Wickman case that… that was several years ago that is still good in the Fifth, and our circuit adopted that when they put in the new circuit.

What we’re asking here today is basically a very narrow holding.

We’re asking that there be limited sovereign immunity… there… excuse me… that there be… in unique circumstances where core functions of the State are delegated to the county, that the county would have sovereign immunity, and that a State can cloak a county with sovereign immunity.

It seems that that is an issue that the State ought to be able to do out of its delegation… out of its dignity function.

They ought to have the right to run the State and… and delegate those functions as they see fit.

John G. Roberts, Jr.:

It’s not unusual that counties maintain and run bridges in your State, is it?

I mean, that’s–

R. Jonathan Hart:

Yes, sir, that’s–

John G. Roberts, Jr.:

–That’s the normal–

R. Jonathan Hart:

–I don’t know if I’d go so far as normal, but for larger communities, yes, sir.

John G. Roberts, Jr.:

–Then… then how do we know it’s a core dignity function of the State if they’re… the normal rule is somebody else does it?

R. Jonathan Hart:

Well, it’s a function that historically in the Constitution was recognized would be a function on behalf of the State with the counties.

And… and it has traditionally historically been a function of the States to build roads and run bridges.

And in regard to that, you’re talking about navigable waters, and the State has an interest in its own navigable waters.

They’re delegating a function of the government to build a bridge over their navigable waters and the soils thereunder.

So we would take the position there that… that that is a core sovereign function, that the navigable waters are a sovereign interest of the State, and that should have the dignity and respect of that.

The design of the Constitution was that there would be dual sovereignty created both in federalism and under State sovereignty.

There’s not a single case you all are going to have that’s going to be able to define all the principles of general sovereign immunity, but we think this is a situation in which the Court, by making a holding in in personam actions, can recognize the State’s residual immunity, not so much focus on the Eleventh Amendment and the cases thereunder, but try to come up with a set of principles that you can begin talking about the whole of general sovereign immunity.

And we do not necessarily agree that the… the State… the arm of the State test has to apply in all situations.

We think this is an exception.

It’s a narrow exception.

R. Jonathan Hart:

Core sovereign functions are going to be narrowly defined, especially when a county is acting.

You’re going to have to support it with some history.

You’re going to have to support it with some State dignity where the State has given a clear indication through their State laws that it’s a function that the county ought to do, and… and that needs to be respected from the standpoints that States are given wide latitude in the way that they set up and run their government.

And we respectfully request that you make a finding that we have the right to have sovereign immunity in this particular narrow set of circumstances involving navigable waters as… as it stands.

Thank you.

John G. Roberts, Jr.:

Thank you, Mr. Hart.

Mr. Estrada, you have 8 minutes remaining.

Miguel A. Estrada:

Mr. Chief Justice, just a few points.

On the issue that was raised by Justice Alito, the… this doctrine comes from the Wickman case from the old Fifth Circuit.

That case relied primarily on a… on a case called Kegan from the Supreme Court of Florida, which was, indeed, a bridge case, but it was not an admiralty case.

It was a case in which someone who was crossing a bridge with a heavy truck fell through the bridge because the… the bridge was structurally unsafe.

The old Fifth Circuit sort of took it as a bridge case and took over that doctrine.

If that fact… the scenario were to come up in Chatham County and the plaintiffs and the defendants were diverse, there is no question that… that the county would be entitled to plead its State law immunity under Erie.

I will point out incidentally that even though in this case there is diversity of citizenship and admiralty jurisdiction, this Court held in 1953 in a case called Pope & Talbot v. Hawn that in that circumstance, any defense that is available solely on the diversity side under Erie gets trumped by the uniform application of the maritime law.

So that would not be an issue here.

With respect to the question that was raised by Justice Ginsburg, Hines was an admiralty case in State court.

Under no stretch of construction could that be viewed as an Eleventh Amendment case since it was not a case in law or equity and it was not in Federal court.

And number three, the proprietary governmental distinction has been rejected in the Workman case itself where it was raised in the specific context of admiralty.

I will point out it has never been part of this Court’s sovereign immunity doctrine, and with respect, other areas of federalism law tend to indicate that the issue not be adopted now.

You may recall that such a distinction between core and non core governmental functions was at the core of the… of this… this Court’s cases under National League of Cities v. Usery, and in the Garcia case, the Court overruled National League of Cities primarily on the point that the distinction between core and non core governmental functions had proven to be unworkable.

John G. Roberts, Jr.:

You’re… are you suggesting that the… the State would enjoy sovereign immunity in proprietary activities?

Miguel A. Estrada:

I am suggesting that if you named the State on the wrong side of the caption on the V in Federal court, it does enjoy sovereign immunity, irrespective of what your cause of action is.

Yes, Mr. Chief Justice.

John G. Roberts, Jr.:

But I would have thought, particularly when we’re talking about the arm of the State doctrine, that the… the nature of the activity is one of the key questions we look at.

Miguel A. Estrada:

I think–

John G. Roberts, Jr.:

Maintaining bridges is one thing.

You know, operating a for profit activity would be something else.

Miguel A. Estrada:

–I think it’s… it’s sort of inherent in all the cases that have been ruled upon, Mr. Chief Justice, that what tends to be delegated are those that are the normal functions of government, but I don’t think this Court has ever held that it is the function of sovereign immunity doctrine to tell the States what are the appropriate functions of government.

So I don’t think there would be a distinction that would be supported by the cases.

Antonin Scalia:

I always thought the governmental proprietary distinction really came up in State law cases involving municipal liability.

Antonin Scalia:

That’s principally where it–

Miguel A. Estrada:

It did early on, and that was… that was one of the issues that was put forth in the Workman case, Justice Scalia.

With respect to the admiralty jurisdiction of the U.S. courts, this Court said in 1901 that it carries no weight.

Thank you, Mr. Chief Justice.

I have nothing further.

John G. Roberts, Jr.:

Thank you, counsel.

The case is submitted.