Opposition Brief — Paschal v. Didrickson

IN THE

Supreme Court of the Unite

OCTOBER TERM, 1991

BONITA PASCHAL, DANIEL DODSON,

PAUL BUCASAS and all others similarly situated,

Petitioners,

v.

LOLETA DIDRICKSON, the Director of the Illinois Department

of Employment Security; STELLA CUTHBERT, the Commissioner

of the Illinois Department of Employment Security;

LYNN MARTIN, the Secretary of the United States Department of

Labor; ROBERTS T. JONES, the Assistant Secretary for the

Employment and Training Division of the United States Department

of Labor; and the UNITED STATES DEPARTMENT OF LABOR,

Respondents.

Petition for Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

JEROME J. WEBB

Special Assistant

Atterney General

State of Illinois

Counsel of Record

33 North Dearborn Street

Suite 1530

Chicago, Illinois 60602

(312) 263-0300

Attorney for State

of Illinois Respondents

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

QUESTIONS PRESENTED FOR REVIEW

1. Does the Eleventh Amendment to the United States

Constitution allow a judgment for restitution of funds

against a State to persons whose claims for unemploy-

ment benefits have been resolved and closed?

2. Should Hans v. Louisiana, 134 U.S. 1 (1890), be

overruled?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ..

TABLE OF AUTHORITIES .................

STATEMENT OF THE CASE ...............

I. THE STATUTORY FRAMEWORK .....

A. The Two Unemployment Insurance

Programs At Issue ..............

B. The Funding Of Unemployment In-

surance Benefits ..............5.

Il. THE DISPOSITION OF THE CASE

BLA onccccccccccnccasenan’ teeeeee

REASONS FOR DENYING THE PETITION ..

I. THE SEVENTH CIRCUIT'S RULING IS

IN ACCORD WITH PRECEDENTS FROM

THIS COURT ..cccccccsccccccscsseses

Il. HANS v. LOUISIANA SHOULD NOT BE

OVERRULED ...cccccccsccccsccssess

CONCLUSION ...ccccccccccccscsccssusssueun

iil

TABLE OF AUTHORITIES

CASES:

Atascadero State Hospital v. Scanlon, 473 U.S. 234

RTECS bGds ches cceccccscccescces

Cosby v. Jackson, 741 F. Supp. 740 (N.D. Ill. 1990). ,

Cosby v. Ward, 843 F.2d 967 (7th Cir. 1988) ....

Dellmuth v. Muth, 491 U.S. 223 (1989) .......

Edelman v. Jordan, 415 U.S. 651 (1974) ......

Employees v. Department of Public Health and

Welfare of Missouri, 411 U.S. 279 (1973) ....

Esparza v. Valdez, 862 F.2d 788 (10th Cir. 1988),

cert. denied, 492 U.S. 905 (1989) ...........

Great Northern Life Ins. Co. v. Read, 322 U.S. 47

EEE ab cocks dccrccccccccccescs

Hans v. Louisiana, 134 U.S. 1 (1890) ...... 10,

Kennecott Copper Corp. v. State Tax Comm’n, 327

SEE

Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989) . .

People ex rel. Bernardi v. Bethune Plaza, Inc., 124

Ill. App.3d 791, 464 N.E.2d 1116 (1st Dist. 1984),

cert. denied, 470 U.S. 1001 (1985) ..........

Welch v. Texas State Dept. of Highways and Pub-

lic Transportation, 483 U.S. 468 (1987) .. 10,

CONSTITUTIONAL PROVISIONS:

United States Constitution, U.S. Const. Amend.

SE 8,

PAGE

7, 8,9

11, 12

7, 8,9

10, 11

3,9

11, 12

10, 11

iV

STATUTES:

Federal-State Extended Unemployment Compensa-

tion Act of 1970, 26 U.S.C. § 3304(aX11), note

Pub. L. 91-373, (as amended) §§ 201-207 ....

I i Fe aa ae See aeeen vee

Federal Supplemental Compensation Act of 1982, 26

U.S.C. § 3304, note Pub. L. 97-248, (as amended)

SED Vckbbineds cdeekesncneceseusavens

Federal Unemployment Tax Act, 26 U.S.C. §§ 3301

CE BOG. cocccccccccevccvscccsesccsscveveses

26 U.S.C. § 3304(aX17) 2... eee eee eee eee

BB UBC. SSBRE) ..nccscccscivccvvccccses

Social Security Act, 42 U.S.C. §§ 501 et seg. ....

Oe a Ee akbbencnscedvedeescocececes

GB UB. FE ociscvcecuss in dbuweaseeaues

Be De ih kcncccsseveccseucenss

4B UBC. CGBRISED 2. nccccsccccccccccees

42 U.S.C. S$ 110MDMD) .... 2. cece cecccenvees

SB UBC. GRRRRIINAID occ cdcccccccvces.

Oe FE Be tek a ares evoceesneiedadeess

Pog a 0 errr rere rr rrr er

42 U.S.C. § 1GBBNG) .... ccc ccccccccecess

—_

= & & C1 or > & OT ole

Illinois Unemployment Insurance Act, Ill. Rev.

Stat. 1989, ch.

Ill. Rev.

Ill. Rev.

Ill. Rev.

Mf. Rev.

Ill. Rev.

Ill. Rev.

Ill. Rev.

Ill. Rev.

Ill. Rev.

Ill. Rev.

Ill. Rev.

Ill. Rev.

Ill. Rev.

Ill. Rev.

Stat.

Stat.

Stat.

Stat.

Stat.

Stat.

Stat.

Stat.

Stat.

Stat.

Stat.

Stat.

Stat.

Stat.

Vv

48, pars. 300 et seq. ..

1989, ch. 4&,

1989, ch. 4%,

1989, ch. 48,

1989, ch. 48,

1989, ch. 48,

1989, ch. 48,

1989, ch. 48,

1989, ch. 4%,

1989, ch. 4%, par

1989, ch. 4%,

1989, ch. 48,

1989, ch. 48,

1989, ch. 4%,

1989, ch. 4%,

OTHER AUTHORITIES:

Bernstein and Ramel, The Illinois Unemployment

Insurance Act, 48 Ill.Ann.Stat., XIII, (Smith-

Hurd 196)

par. 403B .....

par. 409A.1,2,3 .

par. 409A.5 ....

par. 409A.6 ....

par. 409C,F ...

pars. 550-581

pars. 551-552 ..

i ee veenees

par. 660C .....

3 er

par. 661A-I ....

A ae

a re é

. 660 .. 3, 4, 5, 6, 7,

rf Ww Ww W WNW PLO

ane Cw &

No. 91-577

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

BONITA PASCHAL, DANIEL DODSON,

PAUL BUCASAS and all otters similarly situated,

Petitioners,

Ve

LOLETA DIDRICKSON, the Director of the Illinois Department

of Employment Security; STELLA CUTHBERT, the Commissioner

of the Illinois Department of Employment Security;

LYNN MARTIN, the Secretary of the United States Department of

Labor; ROBERTS T. JONES, the Assistant Secretary for the

Employment and Training Division of the United States Department

of Labor; and the UNITED STATES DEPARTMENT OF LABOR,

Respondents.

Petition for Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

=

STATEMENT OF THE CASE

Petitioners’ statement of the case is clouded by argu-

ment and a basic misunderstanding of unemployment in-

surance law. The State of Illinois Respondents, Loleta

Didrickson, the Director of the Illinois Department of

F'~ ployment Security (the “Director” and the “IDES”’),

and Stella Cuthbert, the Commissioner of Unemployment

Insurance of the IDES, can agree with the Petitioners’

statement of the case, except as stated below.

I. THE STATUTORY FRAMEWORK

A. The Two Unemployment Insurance Programs At Issue

This case indeed concerns extended benefits and federal

supplemental compensation benefits. Some general back-

ground in unemployment insurance is necessary for a full

understanding of the case.

Unempleyment insurance is surely a cooperative effort

by the federal and state governments. Spawned by the

passage of the Social Security Act, 42 U.S.C. §§ 501 et

seq., in the depression years, unemployment insurance was

never intended to be, and it is not, a federal program.

Rather, the states were induced to pass their own, un-

employment programs, and every state has done so. See

Bernstein and Ramel, The Illinois Unemployment Insur-

ance Act, 48 Ill.Ann.Stat., XIII, XIV (Smith-Hurd 1986).

The federal government does retain input into the state

programs through various requirements. These require-

ments are generally designed to safeguard the state funds

from which benefits are paid, solidify labor standards, and

to help ensure efficiency in administration of unemploy-

ment programs. Bernstein and Ramel, 48 IIl.Ann.Stat. at

XIX. Notwithstanding this, however, the states have wide

pilin

discretion in the administration of their unemployment in-

surance programs. /d. at XVII.

In Illinois, a claimant can receive, in each benefit year,

a maximum amount in regular benefits equal to 26 times

his weekly benefit amount plus dependency allowances,

or to the total wages for insured work paid to the claim-

ant during his base period, whichever is less. Ill. Rev.

Stat. 1989, ch. 48, par. 403B. Regular benefits are those

payable pursuant to the Illinois Unemployment Insurance

Act (the “Act’’), Ill. Rev. Stat. 1989, ch. 48, pars. 300 et

sey., or any other state unemployment law, other than

extended benefits or additional benefits. Jd. par. 409A.5.

Extended benefits (““EB’’) are payable pursuant to the

various unemployment laws of each state, and not through

a federal law. Similar to the “regular’”’ unemployment pro-

gram, the states were induced to pass the EB program

through the enactment of federal legislation. In the case of

EB, this was the passage of the Federal-State Extended

Unemployment Compensation Act of 1970 (““EUCA”’), 26

U.S.C. § 3304(aX11), note Pub. L. 91-373, (as amended)

§§ 201-207.

In Illinois, EB are those payable pursuant to section 409

of the Act. Ill. Rev. Stat. 1989, ch. 48, par. 409A.6. EB

are only available when adverse economic conditions trig-

ger an indicator ‘“on,’’ and end when conditions improve

so as to switch EB “off.” Jd. par. 409A.1,2,3. The indicator

has not been ‘“‘on,”’ and EB have not been payable in IIli-

nois, since June, 1983. When “on,” the Act provides for

up to 13 weeks of extended benefits to exhaustees of

regular benefits. Jd. par. 409C,F.

Federal supplemental compensation (“FSC’’) benefits

were payable pursuant to the Federal Supplemental Com-

pensation Act of 1982 (the “FSC Act”), 26 U.S.C. § 3304,

Pe

note Pub. L. 97-248, (as amended) §§ 601-606. FSC benefits

were paid by states, including Illinois, that entered into

a contract to do so. FSC Act, § 602(a).

B. The Funding of Unemployment Insurance Benefits

Contrary to Petitioners’ assertions, unemployment in-

surance benefits are not paid from the unemployment

trust fund. Rather, in each state they are paid from state

moneys or funds. In Illinois, they are paid from moneys

assessed and collected from. 'llinois liable employers. III.

Rev. Stat. 1989, ch. 48, par. 660. To be sure, the benefits

moneys pass through the unemployment trust fund, but

that is due to the nature and history of unemployment

insurance.

In Illinois, unemployment insurance programs are

administered through the IDES by the Director. Ill. Rev.

Stat. 1989, ch. 48, par. 610. Unemployment benefits are

funded by the assessment of contributions against Illinois

liable employers. Jd. pars. 550-581, 660; People ex rel. Ber-

nardi v. Bethune Plaza, Inc., 124 Ill. App.3d 791, 464

N.E.2d 1116, 1119 (1st Dist. 1984), cert. denied, 470 U.S.

1001 (1985); Bernstein and Ramel, 48 Ill. Ann. Stat. at

XVIII.

All unemployment benefits, of whatever type, are paid

by the IDES from these moneys so collected. Ill. Rev.

Stat. 1989, ch. 48, par. 660. These moneys are first de-

posited by the Director into the “clearing account,” one

of the accounts maintained in the state’s treasury for the

administration of the unemployment insurance program.

Id. pars. 660, 663.

After clearance, the Director deposits the moneys with

the U.S. Secretary of the Treasury to the credit of Illi-

nois’ account in the unemployment trust fund. Ill. Rev.

mer ae

Stat. 1989, ch. 48, par. 660; see 42 U.S.C. §§ 503(a\4),

1104; 26 U.S.C. § 3306(f). Even though these moneys are

deposited in a federal trust fund, they are kept in Illinois’

account within that fund; until they are requisitioned by

the IDES for the payment of benefits, they at all times

are and “shall be deemed to be a part of the unemploy-

ment fund of the State [of Illinois].”” 26 U.S.C. § 3306(f).

Unemployment benefits are paid from the “‘benefit ac-

count.’’ Upon the requisition of the Director, money is

transferred from Illinois’ account in the federal unemploy-

ment trust fund to the benefit account. Ill. Rev. Stat.

1989, ch. 48, par. 660; see 42 U.S.C. § 1104(f); 26 U.S.C.

§ 3306(f).

If and when the federal unemployment trust fund ceases

to exist, or separate accounts for each state are not main-

tained, Illinois’ money in the fund shall immediately be

transferred back to the Illinois State Treasurer to be held

and used for unemployment benefits. Ill. Rev. Stat. 1989,

ch. 48, par. 662.

If Illinois’ moneys, in either the benefit account or in

its account in the unemployment trust fund, are insuffi-

cient to pay benefits, Illinois may request an advance, i.e.

borrow, from the U.S. Secretary of Labor. Ill. Rev. Stat.

1989, ch. 48, par. 660C. While the advance is repaid from

Illinois’ account in the unemployment trust fund, interest

on the advance is payable from other state moneys. 42

U.S.C. § 1822(bX5); see 42 U.S.C. § 503(cX3); 26 U.S.C.

§3304(aX17).

The costs of administering an unemployment insurance

program in Illinois are paid from either the “‘special ad-

ministrative account” or the Title I1I Social Security and

Employment Fund. Ill. Rev. Stat. 1989, ch. 48, pars. 661,

663.

a

The special administrative account consists of moneys

collected by the IDES as and for interest and penalties

from employers pursuant to the Act. Ill. Rev. Stat. 1989,

ch. 48, par. 661; see also id. pars. 551-552. These moneys

are used for certain administration costs and for various

other purposes. /d. par. 661A-1.

Other administrative costs are paid through the Title

III Social Security and Employment Fund. /d. par. 663.

This fund receives moneys from the federal government.

At least part of the moneys raised by the federal gov-

ernment pursuant to the Federal Unemployment Tax Act

(“FUTA”), 26 U.S.C. §§ 3301 et seq., is appropriated by

Congress to the employment security administration account

in the unemployment trust fund. 42 U.S.C. § 1101(b)\(1).

Subject to that appropriation, moneys in that account are

used “‘for the purpose of assisting the states in the ad-

ministration” of their unemployment programs. 42 U.S.C.

§ 501.

The amount of money allocated to each state is such

as the U.S. Secretary of Labor in her discretion “‘deter-

mines to be necessary for the proper and efficient admin-

istration” of the state’s unemployment program during

that fiscal year. 42 U.S.C. § 502; see People ex rel. Ber-

nardi v. Bethune Plaza, Inc., supra, 464 N.E.2d at 1119.

There is no requirement that these moneys be all or even

a substantial portion of that necessary to run that state’s

program.

The EB program is a state unemployment program. EB

are paid by the IDES out of its benefit account. Ill. Rev.

Stat. 1989, ch. 48, par. 660. Pursuant to EUCA, § 204(aX1XA),

the federal government reimburses Illinois for one-half of

the EB it pays. Similar to regular benefits, Illinois is

“assist[ed]’’ in meeting its EB administrative costs. See

42 U.S.C. §§ 501, 502, 1101(cX1 Ai).

~ os

The IDES paid FSC benefits out of the benefit account,

too. Ill. Rev. Stat. 1989, ch. 48, par. 660. Pursuant to the

FSC Act, § 603(a), the federal government reimbursed IIli-

nois for the FSC benefits it paid. The IDES also received

some federal assistance for its administrative costs. Jd.

§ 604(c).

Il. THE DISPOSITION OF THE CASE BELOW

No court has ever made a final determination that the

IDES violated the constitutional or statutory rights of the

Petitioners or the classes they represent. Admittedly, the

court of appeals in the first appeal did make a preliminary

finding that the IDES violated the claimants’ due process

rights regarding notice of issues. Cosby v. Ward, 843 F.2d

967, 985-986 (7th Cir. 1988). But the trial was never fin-

ished to allow the IDES to rebut the evidence offered

by the Petitioners. The IDES continues to strongly con-

test that finding.

The Partial Settlement Order did provide for other than

prospective relief to a certain number of individuals. Those

claimants whose unemployment benefit claims remained

pending before a court or administrative agency had those

claims remanded to and decided by the IDES. Cosby v.

Jackson, 741 F. Supp. 740, 741 (N.D. Il. 1990); App. 531-

533.

Petitioners mischaracterize the court of appeals decision,

artfully spinning their arguments to that court into the

courts holding. Petition at 18-22.

Thus, while the court did admit to “ample authority that

recognizes that a lawsuit is not against a sovereign when

the relief has no impact upon the state itself,’ App. 15,

it did not agree with Petitioner’s argument that the relief

sought here would have ‘“‘no impact.’’ To the contrary,

-

—(—

the court recognized that all benefits, including EB and

FSC benefits, are paid from Illinois’ benefit account. App.

9, 12. The moneys in the benefit account are state funds.

The court of appeals not only rejected the “trust fund

doctrine,” it rejected the attempt to bring this case into

that doctrine.

Moreover, the court of appeals quite properly ignored

the attempted distinction of two precedents from this

Court, Kennecott Copper Corp. v. State Tax Comm'n, 327

U.S. 573 (1946) and Great Northern Life Ins. Co. v. Read,

322 U.S. 47 (1944). The Petitioners make much of the

“segregation” of unemployment moneys from the “general

revenues” of the state, whatever that term may mean.

That the unemployment moneys are held in separate ac-

counts is not relevant to their character as state moneys;

they merely are not “commingled with other state funds”

(emphasis added). Ill. Rev. Stat. 1989, ch. 48, par. 660;

App. 8. The lesson of Kennecott and Great Northern is

that mere segregation is an “immaterial difference;”’ the

important question is whether a judgment would be against

the state. App. 20.

Finally, Petitioners again mischaracterize the court of

appeals’ decision when they state that the court acknowl-

edged that any judgment would not come from “the state’s

revenues at all.” Petition at 22. To the contrary, the court

acknowledged that EB and FSC benefits come from IIli-

nois’ benefit account. App. 8-9, 12. These are state funds.

ais

REASONS FOR DENYING THE PETITION

I. THE SEVENTH CIRCUIT’S RULING IS IN ACCORD

WITH PRECEDENTS FROM THIS COURT

The key point in the Petitioners’ argument for review

by this Court is that the money used to pay unemploy-

ment benefits in Illinois are kept in separate accounts in

the Illinois treasury. That is, they are “segregated” from

other state moneys, which Petitioners refer to as the

state’s “general revenues.” The argument proceeds that

only these “general’’ moneys of the state are protected

by the immunity given by the Eleventh Amendment to

the United States Constitution, U.S. Const. amend. XI.

All “segregated” moneys, Petitioners claim, are amenable

to judgment.

The court of appeals rejected that argument. App. 19.

In that regard, the Seventh Circuit ruled in strict accor-

dance with two longstanding precedents of this Court.

Kennecott Copper Corp. v. State Tax Comm’n, 327 U.S.

573 (1946); Great Northern Life Ins. Co. v. Read, 322 U.S.

47 (1944).

In both of those cases the moneys at issue were segre-

gated from the state’s other funds. The Court held it to

be an “immaterial difference” that the moneys were seg-

regated, when the judgment would run against the state.

Great Northern, 322 U.S. at 53.

Pointedly, the Seventh Circuit followed this Court’s rul-

ings in Kennecott Copper and Great Northern, App. 19.

So did the Tenth Circuit in Esparza v. Valdez, 862 F.2d

788, 794 (10th Cir. 1988), cert. denied, 492 U.S. 905 (1989),

a case very similar to the one at bar. In Esparza, the court

also rejected the claim that the segregation of moneys

to pay unemployment benefits took the case out from un-

nals

der the protection of the Eleventh Amendment, on the

authority of Kennecott Copper and Great Northern.

In contrast, none of the alleged conflicting authorities

cited on pages 24-26 of the Petition even refer to Ken-

necott Copper or Great Northern. It is those circuits which

have ignored this Court’s holdings on this point, and not

the Seventh Circuit. There is simply no reason for this

Court to review this case on this issue.

Petitioners also argue that the review of this Court is

needed because the Seventh Circuit ignored the source

of the moneys used to pay the unemployment benefits at

issue here. Petitioners claim that the moneys used to fund

unemployment benefits are federal, and not state, and

therefore that sovereign immunity does not attach to them.

In this regard, the ruling of the Seventh Circuit is said

to conflict with precedents of this Court, Petition at 28-31,

and cases from other circuits, Petition at 22-24.

This argument ignores two important differences in the

case at bar. First, the clear and obvious fact is that all

unemployment benefits in Illinois, including the EB and

FSC benefits, are paid from state moneys, collected from

Illinois employers and held in the benefit account in the

state treasury. Ill. Rev. Stat. 1989, ch. 48, par. 660. The

Seventh Circuit recognized this point. App. at 9, 12. The

Petitioners have repeatedly failed to grasp it.

Second, as the court of appeals also recognized, a key

point is that any judgment in this case would run against

the State of Illinois. App. at 18; see Edelman v. Jordan,

415 U.S. 651, 665 (1974). Furthermore, such judgment

“could have an impact on the state [of Illinois] treasury.”

App. at 18-19; see Edelman, 415 U.S. at 666, and n.11.

Therefore, the decision of the court of appeals here does

not depart from the prior rulings of this Court, or differ

a

from decisions in other circuits, so as to merit further re-

view by this Court.

Il. HANS v. LOUISIANA SHOULD NOT BE OVERRULED

Petitioners seek to use this case as a vehicle to over-

rule Hans v. Louisiana, 134 U.S. 1 (1890). Several times

in the recent past, this Court has reconsidered, but de-

clined to overturn Hans. E.g. Pennsylvania v. Union Gas

Co., 491 U.S. 1 (1989); Dellmuth v. Muth, 491 U.S. 223

(1989); Welch v. Texas State Dept. of Highways and Pub-

lic Transportation, 483 U.S. 468 (1987); Atascadero State

Hospital v. Scanlon, 473 U.S. 234 (1985). Petitioners have

offered no new or compelling reasons for this Court to

again consider Hans.

Indeed, Petitioners raise many of the same points, and

refer to many of the same authorities, as have been raised

before to this Court. See, e.g. Pennsylvania v. Union Gas

Co., supra, 491 U.S. at 23 (Stevens, J. concurring). Thus,

the Petitioners argue over the express terms of the Elev-

enth Amendment and the precise facts of the Hans case.

Petition at 32-33, 35-37. They claim that the Court’s deci-

sions under Hans have created ‘“‘substantial incoherence

in the constitutional jurisprudence of sovereign immunity.”

Petition at 42. Again, Petitioners miss the point.

First, it is not clear that only state law claims are in-

cluded within the immunity afforded by the Eleventh

Amendment. To the contrary, the text of the amendment

prohibits “any suit in law or equity.’’ U.S. Const. amend.

XI (emphasis added). This would include federal question

suits. Welch v. Texas Department of Highways and Public

Transportation, supra, 483 U.S. at 485.

Second, the significance of Hans lies not in its specific

facts or the precise way that Louisiana was brought into

—

court. Hans was, and is, reflective of the concerns of the

states. Hans was “‘enunciating a fundamental principle of

federalism, evidenced by the Eleventh Amendment, that

the states retained their sovereign prerogative of immu-

nity.” Pennsylvania v. Union Gas Co., supra, 491 U.S. at

37 (Scalia, J., concurring in part and dissenting in part). The

best answer to Petitioners’ argument is perhaps found in

Hans itself, 134 U.S. at 15:

Suppose that Congress, when proposing the Eleventh

Amendment, had appended to it a proviso that noth-

ing therein sestaad dead prevent a state from be-

ing sued by its own citizens in cases arising under

the Constitution or laws of the United States: can

we imagine that it would have been adopted by the

states? The supposition that it would is almost an ab-

surdity on its face.

Third, there is no incoherence in this Couris’ sovereign

immunity rulings. To the contrary, “the fundamental prin-

ciple enunciated in Hans has been among the most stable

in [this Court’s] constitutional jurisprudence.” Welch v.

Texas Department of Highways and Public Transporta-

tion, supra, 483 U.S. at 486; see Employees v. Depart-

ment of Public Health and Welfare of Missouri, 411 U.S.

279, 291-92 (1973) (Marshall, J., concurring in result).

Furthermore, the Petitioners’ proposed solution—to al-

low suits against a state by its own citizens based on a

federal question, and regardless of the type or nature of

the relief sought—creates problems for the courts, the

state governments and the federal government that far

outweigh any purported benefit.

Thus, at a time when the federal courts are looking for

ways to cut already crowded dockets, this “solution” would

have the opposite effect. It would increase the caseload

by allowing for lawsuits now barred from federal court.

= =

Moreover, this is a time when governments of all types

and levels are looking for ways to increase revenues, while

avoiding additional tax levies and unexpected outlays of

cash. Petitioners’ proposal would frustrate this goal, and

expose state governments to additional, unforeseen, and

unbudgeted liability. To further exacerbate the situation,

this liability would often impact the government after

years of litigation—and years after the alleged violations

have occurred.

Finally, Petitioners’ ‘“‘solution’”’ would further strain the

relationship between the federal and state governments.

These two are often at loggerheads over revenues. To

now allow federal suits against unconsenting states that

may result in large monetary judgments against those

states would assuredly further stress that relationship.

Such judgments would need to be enforced, and this would

again raise the ‘‘delicate problem of enforcing judgments

against the states.”” Welch v. Texas Department of High-

ways and Public Transportation, supra, 483 U.S. at 482.

Accordingly, the State of Illinois Respondents submit

that still another review of Hans v. Louisiana is not

warranted.

—1l3—

CONCLUSION

The petition for a writ of certiorari should be denied.

tespectfully submitted,

JEROME J. WEBB

Special Assistant

Attorney General

State of Illinois

Counsel of Record

33 North Dearborn Street

Suite 1530

Chicago, Illinois 60602

(312) 263-0300

Attorney for State

of Illinois Respondents