Wisconsin Department of Corrections v. Schacht Page 16

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Media for Wisconsin Department of Corrections v. Schacht

Audio Transcription for Oral Argument - April 20, 1998 in Wisconsin Department of Corrections v. Schacht

David E. Lasker:

--But this contains claims of Federal law, Justice Ginsburg, some of which may not be brought in Federal court but all of which may be brought in State court, and--

Ruth Bader Ginsburg:

Yes, but there's no exclusive venue.

I mean, if you... you can say yes, sometimes Congress lets people sue in State court if they want to, like the FELA.

There's nothing like that here.

David E. Lasker:

--The... I guess I--

William H. Rehnquist:

You can bring a 1983 action in State court, can you not?

David E. Lasker:

--Of course, yes, and this entire action was properly brought in State court.

Ruth Bader Ginsburg:

Yes, but defendants in 1983 actions can remove them to Federal court, as defendants in FELA cases could not, because there Congress says, not only can you bring it in State court, but it can't be removed if you bring it there.

David E. Lasker:

Your Honor, I think what I'm recommending to this Court is that you announce a doctrine in handling this case that is true to the unambiguous language of the statutes, that is... that honors the principles of Federalism under the Eleventh Amendment and Article III, and that applies a doctrine that is efficient and simple to understand for lawyers and judges, and that, I submit to you, is exactly what the Seventh Circuit did in this case.

Anthony M. Kennedy:

And I take it that as part of this clarification you are going to stick with your answer that you gave to Justice Breyer.

He said, forget State court, you go into Federal court with all of these claims, one of them, which is barred by the Eleventh Amendment, six of which are good Federal claims.

As I understood your answer to the question you said the entire case must be dismissed, and then Justice Ginsburg said, well, what about the Federal Rules of Civil Procedure, and you said, well, what the State court does is to sort things out, but that was avoiding the hypothetical.

The hypothetical was, just the Federal court, so it seemed to me that you didn't answer correctly when you responded to Justice Ginsburg's suggestion, and I want to know if as part of this overall clarification you're suggesting that we say, if there's one cause of action over which the Federal court... forget the State court.

This is, initially you file it in the United States district court.

If there's one cause of action over which there's an Eleventh Amendment jurisdictional problem, Eleventh Amendment jurisdictional bar, the entire case must be dismissed.

David E. Lasker:

Well, I think--

Anthony M. Kennedy:

That is... you have absolutely no authority for that proposition.

David E. Lasker:

--I don't have a case to cite for that proposition, and this case does not raise those facts, of course, but--

Anthony M. Kennedy:

And the Federal Rules of Civil Procedure are against you.

David E. Lasker:

--Your Honor, the fact is that we're dealing here with a hybrid type of case that is not... has not been addressed foursquare before in any situation that I'm aware of, and that is a case where you have Federal claims that are not barred by the Eleventh Amendment coupled with Federal claims that are barred by the--

Anthony M. Kennedy:

Well, but these cases happen all the time... all the time.

It's just because of the rather unusual step taken by the Seventh Circuit that we have it here.

David E. Lasker:

--Your Honor, I believe that on behalf of my client I had a right as the plaintiff's counsel to file this case in State court, which is how this question comes here from the Seventh Circuit, and--

Ruth Bader Ginsburg:

I can understand that part of it, and that's what this case is.

This is a removal case.

But the case that I put to you, and Justice Kennedy just recalled, of an initial proceeding in Federal court with some defendants, why would it be any different than if you filed a diversity suit and you had one nondiverse defendant, and there was a motion to dismiss for lack of subject matter jurisdiction?

You'd say, fine, I drop the nondiverse defendant.

Why is this any different as an initial matter?

David E. Lasker:

--Because I don't think that Congress intended to bifurcate the litigation in that fashion.

I think that piecemeal removal--