Hess v. Port Authority Trans-Hudson Corporation (1994)

But see Hess, 513 U.S. at 59 , 115 S.Ct. 394 (O’Connor, J. dissenting) (“The Court takes a sufficient condition for Eleventh Amendment immunity [ — a drain on the state treasury — ■] and erroneously transforms it into a necessary condition”; ie., Justice O’Connor read the majority opinion in Hess differently than did the Manders majority).

Compare OCGA § 12-3-240 (Office of Planning and Budget authorized to transfer sufficient funds for ongoing operations of Jekyll Island Park Authority). 24 OCGA§ 52-2-31 (a). 25 OCGA§ 52-2-36; but see Hess, 513 U. S. at 51 (“the proper focus is not on the use of profits or surplus, but rather on losses and debts”). 26 See OCGA § 52-2-32 (a) (rentals contracted with Ports Authority by the state or any department shall be paid from funds appropriated for such purposes).

See, e. g., Hess v. Port Authority Trans-Hudson Corporation, 513 U. S. 30, 44 (1994) (“[Regulation of land use [is] a function traditionally performed by local governments”).

New York Guaranty & Indemnity Co. v. Steele, 134 U. S. 230, 232 (1890) (finding a suit against a state official in state court to be "clearly within the principle" of the Eleventh Amendment decisions); Hess v. Port Authority TransHudson Corporation, 513 U. S. 30, 39 (1994) ("The Eleventh Amendment largely shields States from suit in federal court without their consent, leaving parties with claims against a State to present them, if the State permits, in the State's own tribu…

See also Hess v. Port Authority Trans-Hudson Corporation, 513 U. S. 30, 44 (1994) ("[R]egulation of land use [is] a function traditionally performed by local governments"); FERC v. Mississippi, 456 U. S. 742, 768, n. 30 (1982) ("[R]egulation of land use is perhaps the quintessential state activity"); Village of Belle Terre v. Boraas, 416 U. S. 1, 13 (1974) (Marshall, J., dissenting) ("I am in full agreement with the majority that zoning . . . may indeed be the most essential…

See, e.g., Hess, 513 U.S. at 45 (“State courts . . . repeatedly have typed the Port Authority an agency of the [s]tates . . . .”).

Trans-Hudson Corp., 513 U.S. 30, 49 , 115 S.Ct. 394 , 130 L.Ed.2d 245 (1994) ("[T]he vast majority of Circuits ... have concluded that the state treasury factor is the most important factor to be considered ... and, in practice, have generally accorded this factor dispositive weight") (first alteration in the original) (internal quotation marks omitted); Libby v. Marshall, 833 F.2d 402, 406 (1st Cir.1987)(stating that "[t]he damage the Eleventh Amendment seeks to forestall i…

See S.J. v. Hamilton County, 374 F.3d 416, 422 (6th Cir. 2004); see also Hess, 513 U.S. at 48 (“Courts of Appeals have recognized the vulnerability of the State’s purse as the most salient factor in Eleventh Amendment determinations.”); Dubuc v. Mich. Bd. of Law Exam’rs, 342 F.3d 610, 615 (6th Cir. 2003) (“[T]he primary issue is whether the state would ultimately be liable for any money judgment against the entity.”); Alkire v. Irving, 330 F.3d 802, 811 (6th Cir. 2003) (citi…

Trans-Hudson Corp., 513 U.S. 30, 47 (1994) (“When indicators of immunity point in different directions, the Eleventh Amendment’s twin reasons for being remain our prime guide.”).10 “Of these twin reasons, the ‘foremost’ reason for sovereign immunity is avoiding state liability for any judgment against the entity.” Hennessey, 53 F.4th at 528 (quoting Sikkenga, 472 F.3d at 718 ).11 “The focus of this judgment liability 10 Hess involved a bi-state entity rather than an entity c…

Trans-Hudson Corp., 513 U.S. 30, 50 , 115 S.Ct. 394 , 130 L.Ed.2d 245 (1994) (“Where an agency is so structured that, as a practical matter, if the agency is to survive, a judgment must expend itself against state treasuries, common sense and the rationale of the eleventh amendment require that sovereign immunity attach to the agency.”) (internal quotation marks and alteration omitted).

See, e.g., Hess v. Port Authority Trans–Hudson Corporation, 513 U.S. 30, 44 , 115 S.Ct. 394 , 130 L.Ed.2d 245 (1994) (“[R]egulation of land use [is] a function traditionally performed by local governments”).

Id. at 47 , 115 S.Ct. at 404 (“But ultimate control of every state-created entity resides with the State.”). 4 Thus, if state control was not sufficient to warrant Eleventh Amendment immunity in Hess , I cannot conclude that it is in the instant case. 5 I respectfully submit that the opinion for the court overemphasizes the control factor and underemphasizes the state treasury factor.

See Hess, --- U.S. at ----, 115 S.Ct. at 405 , 130 L.Ed.2d at 261 (citing the Port Authority's "actual financial independence--its long history of paying its own way"); id. at ----, 115 S.Ct. at 403 , 130 L.Ed.2d at 259 ("for decades [the Authority] has received no money from the States"); id. at ----, 115 S.Ct. at 406 n. 21, 130 L.Ed.2d at 262 n. 21 (declining "to spread an Eleventh Amendment cover over an agency that consumes no state revenues"); id. at ----, 115 S.Ct. at …

Trans-Hudson Corp., 513 U.S. 30, 44 (1994) (“[R]egulation of land use [is] a function traditionally performed by local governments.”).

Trans-Hudson Corp., 513 U.S. 30, 44 (1994) (“[R]egulation of land use [is] a function traditionally performed by local governments.”).

Trans-Hudson Corp., 513 U.S. 30, 47 (1994) (“When indicators of immunity point in different directions, the Eleventh Amendment’s twin reasons for being remain our prime guide.”).3 As an initial, sometimes dispositive, step, we evaluate four “primary factors”: 3 Hess v. Port Authority Trans-Hudson Corp. involved an entity created by an interstate compact with Congressional approval rather than an entity created by a single state. 513 U.S. 30 , 40–41 (1994).

Trans-Hudson Corp. , 513 U.S. 30 , 48, 115 S.Ct. 394 , 130 L.Ed.2d 245 (1994) ("[T]he impetus for the Eleventh Amendment [is] the prevention of federal-court judgments that must be paid out of a State's treasury.").

Compare, e.g., FDIC v. Meyer, 510 U.S. 471, 475 , 114 S.Ct. 996 , 127 L.Ed.2d 308 (1994) (“Absent a waiver, sovereign immunity shields the Federal Government and its agencies from *531 suit.”), with Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30, 39 , 115 S.Ct. 394 , 130 L.Ed.2d 245 (1994) (“The Eleventh Amendment largely shields States from suit in federal court without their consent....”), and Alden v. Maine, 527 U.S. 706, 713 , 119 S.Ct. 2240 , 144 L.Ed.2d 636 (19…

See, e.g., Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30, 51 , 115 S.Ct. 394 , 130 L.Ed.2d 245 (1994) ("If the expenditures of the enterprise exceed receipts, is the State in fact obligated to bear and pay the resulting indebtedness of the enterprise?").

See, e.g., Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30, 51 , 115 S.Ct. 394 , 130 L.Ed.2d 245 (1994) (“If the expenditures of the enterprise exceed receipts, is the State in fact obligated to bear and pay the resulting indebtedness of the enterprise?”).

Trans-Hudson Corp., 513 U.S. 30, 52 (1994); see also Maliandi v. Montclair State Univ., 845 F.3d 77, 83 (3d Cir. 2016) (“[The Eleventh Amendment] has evolved into a potent tool for States to ensure that States retain their sovereignty and integrity as constituent polities of our national government.”).

Trans-Hudson Corp., 513 U.S. 30, 52 (1994); see also Maliandi v. Montclair State Univ., 845 F.3d 77, 83 (3d Cir. 4 2016) (“[The Eleventh Amendment] has evolved into a potent tool for States to ensure that States retain their sovereignty and integrity as constituent polities of our national government.”).

Trans‐Hudson Corp., 513 U.S. 30, 48 (1994) (“[T]he impetus for the Eleventh Amend‐ ment [is] the prevention of federal‐court judgments that must be paid out of a State’s treasury.”).

Trans-Hudson Corp., 513 U.S. 30, 44 (1994) (“[R]egulation of land use [is] a function traditionally performed by local governments.”).

In the Compact Clause context, the Court has expressed particular concern regarding extending sovereign immunity to entities whose “political accountability is diffuse,” because “they lack the tight tie to the people of one State an instrument of a single State has.” Hess, 513 U.S. at 42 , 115 S.Ct. 394 ; see also id. (“In sum, within any single State in our representative democracy, voters may exercise their political will to direct state policy; bistate entities created by…

Trans-Hudson Corp., 115 S.Ct. 394, 400, 404 (1994)("The Eleventh Amendment largely shields States from suit in federal court without their consent, leaving parties with claims against a State to present them, if the State permits, in the State's own tribunals.").

Trans-Hudson Corp., 513 U.S. 30, 50 , 115 S.Ct. 394 , 130 L.Ed.2d 245 (1994) (“Where an agency is so structured that, as a practical matter, if the agency is to survive, a judgment must expend itself against state treasuries, common sense and the rationale of the eleventh amendment require that sovereign immunity attach to the agency.”)).

Trans-Hudson Corp. , 513 U.S. 30 , 44, 115 S.Ct. 394 , 130 L.Ed.2d 245 (1994) ("[R]egulation of land use [is] a function traditionally performed by local governments.") ).

Trans-Hudson Corp., 513 U.S. 30, 39 , 115 S.Ct. 394, 400 , 130 L.Ed.2d 245 (1994) (“The Eleventh Amendment largely shields States from suit in federal court without their consent, leaving parties with claims against a State to present them, if the State permits, in the State’s own tribunals.”).

New York Guaranty & Indemnity Co. v. Steele, 134 U.S. 230, 232 , 10 S.Ct. 511 , 33 L.Ed. 891 (1890) (finding a suit against a state official in state court to be "clearly within the principle" of the Eleventh Amendment decisions); Hess v. Port Authority Trans-Hudson Corporation, 513 U.S. 30, 39 , 115 S.Ct. 394 , 130 L.Ed.2d 245 (1994) ("The Eleventh Amendment largely shields States from suit in federal court without their consent, leaving parties with claims against a State …

Sanchez-Lopez, 247 F.Supp.2d at 42 , citing Hess v. Port Authority *238 Trans-Hudson Corp., 513 U.S. 30, 47 , 115 S.Ct. 394 , 130 L.Ed.2d 245 (1994) (“cities and counties do not enjoy Eleventh Amendment immunity”).

Trans-Hudson Corp., 513 U.S. 30, 48-49 , 115 S.Ct. 394 , 130 L.Ed.2d 245 (1994) (“[T]he ‘vast majority of Circuits ... have concluded that *186 the state treasury factor is the most important factor to be considered ... and, in practice, have generally accorded this factor dispositive weight.’ ”)(collecting cases)(internal citations omitted); Feeney v. Port Auth.

See Murray v. State of Oregon, 203 Or App 377, 379 , 124 P3d 1261 (2005) (“The commission is a bistate entity made up of representatives of the states of Oregon and Washington.” (emphasis added)); cf. Hess v. Port Authority Trans-Hudson, 513 US 30, 40 , 115 S Ct 394 , 130 L Ed 2d 245 (1994) (“The States, as separate sovereigns, are the constituent elements of the Union.

Justice Ginsberg, writing for the Court, emphasized one core issue: “Will a State pay if the defendant loses?” See Hess, 513 U.S. at 48 , 115 S.Ct. at 394 (“Courts of Appeals have recognized the vulnerability of the State’s purse as the most salient factor in Eleventh Amendment determinations.”).

Hunter, 207 U.S. at 178-79 , 28 S.Ct. 40 (emphasis added); partially quoted in Goodyear, 148 Ariz. at 218 , 714 P.2d at 388 ; see also Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30, 47 , 115 S.Ct. 394 , 130 L.Ed.2d 245 (1994) (“[U]ltimate control of every state-created entity resides with the State, [which] may destroy or reshape any unit it creates. *516 Political subdivisions exist solely at the whim and behest of their State.”) (Citation omitted.); Holt Civic Clu…

Trans-Hudson Corp., 513 U.S. 30, 47 , 115 S.Ct. 394 , 130 L.Ed.2d 245 (1994) (“[P]olitical subdivisions exist solely at the whim and behest of their State, yet cities and counties do not enjoy Eleventh Amendment immunity.”); Mount Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274 , 97 S.Ct. 568, 572 , 50 L.Ed.2d 471 (1977) (“The bar of the Eleventh Amendment to suit in federal courts extends to States and state officials in appropriate circumstances, but does not extend to coun…

Trans-Hudson Corp., 513 U.S. 30, 47 , 115 S.Ct. 394, 404 , 130 L.Ed.2d 245 (1994) (“[C]ites and counties do not enjoy Eleventh Amendment immunity.”); Robinson v. Georgia Dept. of Transp., 966 F.2d 637, 638 (11th Cir.1992) (stating that the eleventh amendment does not apply to counties and other political subdivisions of the state), cert. denied, 506 U.S. 1022 , 113 S.Ct. 660 , 121 L.Ed.2d 586 (1992).

Nevertheless, Congress did authorize New York and New Jersey jointly to delegate additional powers and duties to the Port Authority. 42 Stat. 174 , Art. 7; see Hess v. Port Authority Trans-Hudson Corp, 513 U.S. at —, 115 S.Ct. at 399 (“Acting jointly, the state legislatures may augment the powers and responsibilities of the Port Authority”); Courtesy Sandwich Shop, Inc. v. Port of New York Authority, 12 N.Y.2d 379, 391 , 240 N.Y.S.2d 1, 7 , 190 N.E.2d 402 (1963) (the origina…

These two concerns, “the Eleventh Amendment’s twin reasons for being,” id. at 47 , the Court instructed, should dominate the inquiry in cases where it is difficult to discern whether a particular entity is an arm of the state, id. (“When indicators of immunity point in different directions, the Eleventh Amendment’s twin reasons for being remain our prime guide.”).

Trans- Hudson Corp., 513 U.S. 30, 42 (1994) (“[T]here is good reason not to amalgamate Compact Clause entities with agencies of ‘one of the United States’ for Eleventh Amendment purposes.”).

Trans-Hudson Corp., 513 U.S. 30, 47 (1994) (“Political subdivisions exists solely at the whim and behest of their State, yet cities and counties do not enjoy Eleventh Amendment immunity”) (cleaned up)).

Trans- Hudson Corp., 513 U.S. 30, 42 (1994) (“[T]here is good reason not to amalgamate Compact Clause entities with agencies of ‘one of the United States’ for Eleventh Amendment purposes.”). municipality under Sections 1983 or 1981, it is not enough for the plaintiff to allege that one of its employees or agents engaged in some wrongdoing.

See Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30, 39 (1994) (“The Eleventh Amendment largely shields States from suit in federal court without their consent, leaving parties with claims against a State to present them, if the State permits, in the State’s own tribunals.”).

Trans–Hudson Corp., 513 U.S. 30, 42 (1994) (“bistate entities created by compact . . . are not subject to the unilateral control of any one of the States that compose the federal system”).

Trans-Hudson Corp., 513 U.S. 30, 47 (1994) (stating that “cities and counties do not enjoy Eleventh Amendment immunity”); Beentjes v. Placer County Air Pollution Control Dist., 397 F.3d 775, 777-78 (9th Cir. 2005) (“[T]he Eleventh Amendment does not extend its immunity to units of local government.”).

See Hess, 513 U.S. at 36 (“the Port Authority was conceived as a financially independent entity, with funds primarily derived from private investors.

Trans–Hudson Corp., 513 U.S. 30, 39 (1994) (“The Eleventh Amendment largely shields States from suit in federal court without their consent, leaving parties with claims against a State to present them, if the State permits, in the State’s own tribunals.”).

Trans-Hudson Corp., 513 U.S. 30 , 48 4 (1994) (“Courts of Appeals have recognized the vulnerability of the State’s purse as the most 5 salient factor in Eleventh Amendment determinations.”). 6 As to the first and most salient factor, the State of California has a contractual obligation 7 to provide for state employees’ vested pension benefits, and it must cover any shortfall in 8 defendant’s funding.

Trans- Hudson Corp., 513 U.S. 30, 48 (1994) (“[T]he vulnerability of the State’s purse [is] the most salient factor in Eleventh Amendment determinations.”).

Trans-Hudson Corp., 513 U.S. 30, 47 (1994) (“When indicators of immunity point in different directions, the Eleventh Amendment’s twin reasons for being remain our prime guide.”).