Wisconsin Department of Corrections v. Schacht Page 2

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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

Sandra Day O'Connor:

So why not waive it?

Why not end this thing?

I just... it's the strangest posture.

Richard Briles Moriarty:

We are now looking back, Your Honor, at... from the perspective of the Seventh Circuit decision at the initial removal decision.

At the time of removal, the claims made against the State were clearly barred either under Will... in both State and Federal court either under Will, because it wasn't within the definition of a person, or based on Eleventh Amendment immunity, or sovereign immunity in State court.

The real crux of the case was the individual capacity claims made against the individual.

Sandra Day O'Connor:

And as to that you wanted it tried in Federal court, not State court.

Richard Briles Moriarty:


Sandra Day O'Connor:

So why not waive the Eleventh Amendment immunity?

Richard Briles Moriarty:

--Because that's not a price of admission to the Federal court, Your Honor.

Anthony M. Kennedy:

Well, maybe it should be.

If we could start all over, it would seem to me to make some sense that if the State removes, that is a waiver of the Eleventh Amendment.

It seems rather odd that you want to go to a court and then say I don't want to be in the court.

Richard Briles Moriarty:

By joining with the officials sued personally in removing, which is required by the removal statutes, the State is not saying we want to be in... we don't want to be in court.

Obviously, they're in court.

The question is--

Anthony M. Kennedy:

Well, you have to consent, as you indicate.

You have to consent to the removal.

You had the option to keep it in State court, but you consented to be removed to a Federal court.

He removed it.

Richard Briles Moriarty:

--Certainly it was a litigation decision by all of the defendants joining together, but the sovereign... the Eleventh Amendment is a defense.

It is not part of the initial threshold jurisdictional question.

Is there a substantial Federal question?

Of course there is.

William H. Rehnquist:

Mr. Moriarty, I remember asking the counsel in the Chicago case that we heard, one thinks of Federal courts as being a place where you can get away from local prejudice and that sort of thing, but one would think that the State of Wisconsin would be perfectly happy to be in the State court.

I gather that isn't always the case.

Richard Briles Moriarty:

It isn't always the case in individual cases.

For example, we have strictly Federal constitutional claims here.

A body of Federal constitutional law that has developed, particularly in the Seventh Circuit, where there's binding precedent on the district courts.

There would not be that binding precedent on the State courts.