Amicus Curiae Brief — Cal. Franchise Tax Bd. v. Hyatt, 135 S. Ct. 2940 (2015) (No. 14-1175)

‘eme Coun, U.S. |

FILED

SEP 10 2015

OFFICE OF THE CLERK

No. 14-1175

3n the Supreme Court of the United States

oem

FRANCHISE TAX BOARD OF

THE STATE OF CALIFORNIA,

Petitioner,

Vv.

GILBERT P. HYATT,

Respondent.

ON A WRIT OF CERTIORARI TO THE SUPREME COURT

OF NEVADA

BRIEF OF AMICI CURIAE

STATE OF WEST VIRGINIA AND 43 OTHER

STATES IN SUPPORT OF PETITIONER

PATRICK MORRISEY ELBERT LIN

Attorney General Solicitor General

Counsel of Record

OFFICE OF THE

ATTORNEY GENERAL MISHA TSEYTLIN

State Capitol General Counsel

Building 1, Room E-26 GILBERT DICKEY

Charleston, WV 25305 J. ZAK RITCHIE

Elbert.Lin@wvago.gov Assistant Attorneys

(304) 558-2021 General

Counsel for Amicus Curiae State of West Virginia

[additional counsel listed at end]

QUESTION PRESENTED

Whether Nevada v. Hall, 440 U.S. 410 (1979),

which permits a sovereign State to be haled into the

courts of another State without its consent, should be

overruled.

TABLE OF CONTENTS

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io clantaedudiameiadaeamuaiiiied 2

Or GI ccsnscncsncncincssictsnmeniendnmnnanenianminnisend 6

SPUIITTTTnTITTTTTTITiniisirsshesdaeesrsigdoeienceianeineteetiiaaimeshalabatengilsinie 8

I. The Constitution’s Structure Protects Every

State’s Sovereign Right to Assert Immunity

In Its Sister States’ Courts .....................c.cececeeeeees 8

Il. The Pre-Ratification History of The States’

Sovereign Immunity Makes Plain That This

Immunity Extends To Suits Brought In Any

Foreign Courts, Including State Courts ............ 12

III. The Denial Of The States’ Sovereign

Immunity Has Imposed Substantial Costs

Upon The States And Their Citizens................. 21

IV. Additional Considerations Militate In Favor

SEE US RPE Tear 29

RENEE EEE OE OT LN TREE OTT Ee 32

TABLE OF AUTHORITIES

Cases

Alden v. Maine,

EE Ren ele eae passim

Beers v. Arkansas,

61 U.S. (20 How.) 527 (1857).............................. 19

Blatchford v. Native Vill. of Noatak,

gg | GF RES A ee 8, 10, 13

Chisholm v. Georgia,

EET RE 4,5,6,9

Cunningham v. Macon & Brunswick R.R. Co.,

EN Se eee 19

Faulkner v. University of Tennessee,

Re IE SE I, ID ecciscnictccsnccccccossenevecsccess 23

Fed. Mar. Comm'n v. South Carolina State Ports

Auth.,

i CL RO oD passim

Franchise Tax Bd. of California v. Hyatt,

oe See 27, 28, 30

Great N. Life Ins. Co. v. Read,

EDN Er eee 21

Hans v. Louisiana,

EE ar ane re ene 12, 20, 32

Head v. Platte County, Missouri,

749 P.2d 6 (Kan. 1988).................0.0.ccceee- 24, 26, 27

Hernandez v. City of Salt Lake,

686 P.2d 251 (Nev. 1984)........................ 25, 26, 27

Hess v. Port Auth. Trans-Hudson Corp.,

ARE ER ee 1, 29

iV

Idaho v. Coeur d'Alene Tribe of,

Riahee, SBI UB. BEBCIGG AD q...<ccecscccsscevessessaveeee 8, 10

Kent Cnty. v. Shepherd,

Fe ae i i i isnctinsccstctictsenmnesinanial 25

Laconis v. Burlington Cnty. Bridge Comm'n,

583 A.2d 1218 (Pa. Super. Ct. 1990).................. 25

Mianecki v. Second Judicial District Court,

SD Fe Se me, Ce winiinenniesctonisesnccentoniunial 24

Nathan v. Virginia,

$ %, 2... | eer passim

Nevada v. Hall,

SP es Se Ce ci nntciceninniiateiminnincninndaial passim

Principality of Monaco v. Mississippi,

ee Sk eC ivsiccnstctniiintiieiintesnieeuaiiiiiiadin 13

Puerto Rico Aqueduct & Sewer Auth. v. Metcalf &

Eddy, Inc.,

4 SB Ee ee 1, 21

Reynolds v. Lancaster Cnty. Prison,

739 A.2d 413 (N.J. App. Ct. 1999)...................... 25

Schooner Exchange v. McFaddon,

11 U.S. (7 Cranch) 116 (1812) .....-..0..c0000- 3, 20, 21

Seminole Tribe of Florida v. Florida,

7g) gf, ee 6, 8, 10

Smith v. Reeves,

i fil S00) 6 ee 12, 17

‘

Struebin v. Illinois,

383 N.W.2d 516 (lowa 1986) .................cc cece eeees 25

Struebin v. Illinois,

421 N.W.2d 874 (lowa 1988) ................:ecceeeeeeeees 25

W. Union Tel. Co. v. Pennsylvania,

REE 20

Constitutional Provisions

CC 10

Mihi, ©... scsssssseeuosnnnonsecs 11

ee 11

Statutes

Alaska Stat. §§ 09.50.250 et seq. ...........0.cccccccceceseeeee 31

a snretonetel 27

Fla. Stat. Amn. § 768.28 ............cecceccccsssessessececeeesesees 31

Ky. Rev. Stat. §§ 44.070 et seq...............cccccccceeeeeseeees 31

Neb. Rev. St. §§81-8,209 et seq. .................cccceeceeeeeees 31

Nev. Rev. Stat. § 41.035 ........:ccccccscssecscsececesesesseseeeeee 28

S.C. Code Ann. §§ 15-78-10 et seq. ...........cccccceceeeeeees 31

W. Va. Code §§ 14-2-1 et seq. .............ccccccccecceeeeeeeeeees 31

Other Authorities

Amy Woolhandler, Interstate Sc vereign

Immunity,

ee 11,18

Debates in the Several State Conventions on the

Adoption of the Federal Constitution (J.

ee 14, 17, 18

The Documentary History of the Supreme Court

(Maeva Marcus ed., 1992)............000..000.ccccce. 11, 18

Emmerich de Vattel, THE LAW OF NATIONS OR

PRINCIPLES OF THE LAW OF NATURE APPLIED

TO THE CONDUCT AND AFFAIRS OF NATIONS

AND SOVEREIGNS (J. Chitty ed., 1883) ................ 14

The Federalist No. 81 (Alexander Hamilton) (C.

I, (ok csdeteeinssneiens 17

The Papers of James Madison (William T.

Hutchinson et al. eds., 1963) ...............cccccceeeeeees 15

The Papers of James Madison (Robert A. Rutland

I, Bic ED Aicerecneecinnniticndecinsnnicientobiatibininsets 16

The Papers of Thomas Jefferson (Julian P. Boyd,

ic, UI <isicsecsininistid er cicachiieaiialiiiliciiacieiaaLsieeieas 14

W Blackstone, COMMENTARIES ON THE LAWS OF

RIE TIED cisctiecietreiticninataideineetiiiemdideumanase 13-14

INTEFEST OF AMICI CURIAE

Amici Curiae—the States of West Virginia,

Alabama, Arizona, Arkansas, Colorado, Connecticut,

Delaware, Florida, Georgia, Hawaii, Idaho, Illinois,

Indiana, lowa, Kansas, Louisiana, Maine, Maryland,

Michigan, Minnesota, Missouri, Montana, Nebraska,

Nevada, New Hampshire, New Jersey, North

Carolina, North Dakota, Ohio, Oklahoma, Oregon,

Rhode Island, South Dakota, Tennessee, Texas,

Utah, Vermont, Washington, Wisconsin, and

Wyoming, and the Commonwealths of Kentucky,

Massachusetts, Pennsylvania, and Virginia—have a

significant interest in the protection of the full scope

of sovereign immunity that they enjoy under the

Constitution, including immunity from suits in other

States’ courts. Sovereign immunity is an “integral

component of that ‘residuary and _ inviolable

sovereignty retained by the States,” Fed. Mar.

Comm'n v. South Carolina State Ports Auth., 535

U.S. 743, 751-52 (2002) (quoting The Federalist No.

39) (internal citations omitted), and prevents the

subjection of a State to “the indignity of .. . the

coercive process of judicial tribunals,” Puerto Rico

Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506

U.S. 139, 146 (1993) (quotations omitted). In

addition, because money judgments “must be paid

out of a State’s treasury,” Hess v. Port Auth. Trans-

Hudson Corp., 513 U.S. 30, 48 (1994), the loss of a

State’s constitutionally protected sovereign

immunity saps the State of scarce resources needed

to pursue other goals. Alden v. Maine, 527 U.S. 706,

750-51 (1999).

INTRODUCTION

The time has come for this Court to overrule its

decision in Nevada v. Hall, 440 U.S. 410 (1979), an

outlier among this Court’s consistent protection of

the States’ sovereign immunity. Although this Court

has held that States are immune in their own courts,

in federal courts, and in federal administrative

agencies, Hall allows a State to be haled before the

courts of any other State and be forced to pay money

judgments issued by those courts. This affront to the

States’ sovereign dignity and financial resources ia

contrary to the Constitution’s structure and history

and should be definitively rejected. For this reason,

a total of forty-five States have joined briefs arguing

that Hall should be overruled. !

In concluding that States are not immune from

its in the courts of other States, the Hall majority

disregarded both the structure and the history of the

Constitution. 440 U.S. at 418-27. The Court

specifically declined to “infer[]” immunity “from the

1 Forty-four States have joined this brief, but a total of forty-

five States have joined briefs supporting Petitioners and

arguing that States should be immune from suit in the courts of

other States. The State of South Carolina is joining with its

State Port Authority in another amicus brief in support of

Petitioners in this case.

structure of our Constitution and nothing eise.” Jd.

at 426. And while the Court acknowledged that

sovereign immunity was “[u]nquestionably ... a

matter of importance in the early days of

independence,” it determined the founding era

history to be irrelevant because “[t]he debate about

the suability of the States focused on the scope of the

judicial power of the United States authorized by

Art. III,” and not on “the question whether one State

might be subject to suit in the Courts of another

State.” Id. at 418-19. Similarly, the Court

dismissed the understanding of immunity evidenced

by the history of the ratification of the Eleventh

Amendment because “all of the relevant debatef]

concerned questions of federal-court jurisdiction.”

Id. at 420-21.

Having dismissed the best sources for an

understanding of the scope of sovereign immunity

implicit in the Constitution, Hall instead relied on

the decision of this Court in The Schooner Exchange

v. McFaddon, 11 U.S. (7 Cranch) 116 (1812), to

conclude that each State had the authority to choose

not to extend immunity to other States. 440 U'S. at

416-18. Hall read The Schooner Exchange to stand

for the proposition that sovereign nations can decide

whether they will accord immunity to other nations.

Ibid. Reasoning that the relationship between

States resembles the relationship between nations,

Hall held that only principles of comity prevented

one State from being sued in the courts of another.

Id. at 417-18, 421. But the Court admitted that this

rule would not have applied if it had found “a federal

rule of law implicit in the Constitution that requires

all of the States to adhere to the sovereign-immunity

doctrine as it prevailed when the Constitution was

adopted.” Jd. at 418.

Hail also speculated that the States might be

immune from suit in some cases but provided no

clear guidance to identify those cases. The Court

explained only that there could be some limitation

where a suit in an out-of-State court poses a

“substantial threat to our constitutional system of

cooperative federalism,” but did not elaborate

further. Jd. at 424 n.24.

The Halil decision prompted well-reasoned

dissenting opinions by Justice Blackmun and Justice

Rehnquist. Justice Blackmun, joined by Chief

Justice Burger and Justice Rehnquist, explained that

“(t]he Court’s expansive logic and broad holding—

that so far as the Constitution is concerned, State A

can be sued in State B on the same terms any other

litigant can be sued—will place severe strains on our

system of cooperative federalism.” Id. at 429.

Pointing to “[t]he prompt passage of the Eleventh

Amendment nullifying the decision in Chisholm v.

Georgia, 2 Dall. 419 (1793),” Justice Blackmun

reasoned that “the Framers must have assumed that

States were immune from suit in the courts of their

sister States.” Jd. at 430-31. Put another way,

“[t]he only reason why this immunity did not receive

specific mention is that it was too obvious to deserve

mention.” Jd. at 431.

Justice Rehnquist, joined by Chief Justice

Burger, argued that the Court’s decision “works a

fundamental readjustment of interstate

relationships which is impossible to reconcile not

only with an ‘assumption’ this and other courts have

entertained for almost 200 years, but also with

express holdings of this Court and the logic of the

constitutional plan itself.” Jd. at 432-35 (citing both

the Eleventh Amendment and the founding-era

decision in Nathan v. Virginia, 1 Dall. 77 (1781)).

Justice Rehnquist also noted the irony of holding

that States that are constitutionally immune from

suits by other States’ citizens in “neutral” federal

courts could, under the majority’s opinion, be haled

into the more-likely-biased courts of their sister

States. Jd. at 442.

This Court’s modern sovereign immunity case

law demonstrates that Hall was wrongly decided,

and that the dissenters were entirely correct.

Specifically, this Court’s post-Hall decisions require

a searching examination of the Constitution’s

structure and history in order to determine the

extent of the States’ scvereign immunity, as that

immunity was understood at the founding. Alden,

527 U.S. at 727-28. That analysis leads to the

unmistakable conclusion that States are

constitutionally immune from lawsuits brought in

the courts of other States.

SUMMARY OF ARGUMENT

I. Under this Court’s post-Hall case law, it is

clear that the Constitution’s structure extends the

States’ sovereign immunity to suits brought in other

States’ courts. As this Court has emphasized in

recent years, see, e.g., Alden v. Maine, 527 U.S. 706,

723-24 (1999); Seminole Tribe of Florida v. Florida,

517 U.S. 44, 70 (1996), the swift reversal of Chisholm

v. Georgia, 2 U.S. (2 Dall.) 419 (1793), by the

Eleventh Amendment highlights that the founding

generation understood the Constitution’s structure

as broadly protecting the States’ sovereign

immunity. And it follows that States should also be

immune from non-consensual suit in the courts of

their sister States. Otherwise, the immunity implicit

in the Constitution’s structure would prohibit suits

against States brought by other States’ citizens in

the more neutral federal courts, while nonsensically

permitting those same out-of-state citizens to bring

the same suits in their friendlier home-state courts.

Il. “{H}jistory and experience, and _ the

established order of things,” also strongly support

the States’ sovereign immunity from suits in other

States’ courts. Alden, 527 U.S. at 727 (quotations

omitted). At the time of the founding, it was broadly

accepted that the sovereign States were immune

from lawsuits in any courts, including other States’

courts. This view was most clearly demonstrated by

the founding-era decision in Nathan v. Virginia, 1

U.S. (1 Dall.) 77 (1781), but is also clear from other

founding-era statements and a leading treatise on

international law. While there was no specific

debate among the Founders about the abrogation of

the States’ immunity in the courts of other States,

the explanation of the Hall dissenters makes the

most sense: such immunity was so well established

that no one conceived it would be altered by the

Constitution.

III. For the past thirty-five years, Hall's error

has imposed substantial harm upon the sovereign

States. As detailed below, state courts have imposed

financially burdensome judgments on other States

and their agencies. Many of these cases involved

intrusions into core areas of State policy, while all

such cases violated the States’ sovereign rights and

dignities. The present case, in which a California

state agency has been dragged through Nevada court

for fifteen years, all for enforcing the State of

California’s tax policy, starkly illustrates the need

for this Court to overrule Hall.

IV. Finally, at least two other considerations

warrant overruling Hall. First, while the Hall

majority suggested that another State’s exercise of

jurisdiction might be limited where there is a threat

to Our Federalism, that hypothetical] limitation fails

to provide adequate protection. Second, the rule in

Nevada v. Hall is not necessary to ensure that

injured parties can seek relief because States can

reach agreements consenting to suit in each others’

courts.

ARGUMENT

I. THE CONSTITUTION’S STRUCTURE PROTECTS

EVERY STATE’S SOVEREIGN RIGHT TO ASSERT

IMMUNITY IN ITS SISTER STATES’ COURTS

A. The States’ immunity from suit inheres in the

Constitution’s structure. As this Court’s recent

decisions have repeatedly confirmed, the sovereign

immunity of the States is implicit in “the structure of

the original Constitution itself.” Alden v. Maine, 527

U.S. 706, 728 (1999); see also, e.g., Idaho v. Coeur

d'Alene Tribe of Idaho, 521 U.S. 261, 267-68 (1997)

(explaining that a “broader concept of immunity” is

“implicit in the Constitution”); Seminole Tribe of

Florida v. Florida, 517 U.S. 44, 54 (1996) (confirming

that the Eleventh Amendment is important for “the

presupposition . . . which it confirms” (quoting

Blatchford v. Native Vill. of Noatak, 501 U.S. 775,

779 (1991))). This constitutional immunity is “a

fundamental aspect of the sovereignty which the

States enjoyed before the ratification of the

Constitution, and which they retain today . . . except

as altered by the plan of the Convention or certain

constitutional Amendments.” Alden, 527 U.S. at 713;

see also Fed. Mar. Comm'n v. South Carolina State

Ports Auth., 535 U.S. 743, 752 (2002) (“The

Convention did not disturb States’ immunity from

private suits, thus firmly enshrining this principle in

our constitutional framework.”).

Consistent with the view taken by Justice

Blackmun’s and Justice Rehnquist’s Hall dissents,

this Court’s modern sovereign immunity decisions

have explained that this structural protection is most

evident in the founding generation’s reaction to this

Court’s decision in Chisholm v. Georgia, 2 U.S. (2

Dall.) 419 (1793). Holding that a private citizen

could sue a State in federal court, id. at 450—53

(Blair, J.); id. at 468 (Cushing, J.); id. at 461-66

(Wilson, J.); id. at 478-79 (Jay, C.J.), that decision

“fell upon the country with a profound shock,” Alden,

527 U.S. at 720 (quoting 1 C. Warren, The Supreme

Court in United States History 96 (rev. ed. 1926)). In

response and with almost unanimous votes after a

single day of discussions, both Houses of Congress

quickly approved the Eleventh Amendment, which

provides that the power of the federal courts will not

be construed to extend to a suit brought by a citizen

of one State against another State. Jd. at 721. The

States promptly ratified the Amendment. Fed. Mar.

Comm'n, 535 U.S. at 752.

As this Court’s post-Hall decisions have

explained, the “natural inference” from the

circumstances surrounding the Eleventh

Amendment’s adoption is that “the Constitution was

understood, in light of its history and structure, to

preserve the States’ traditional immunity from

private suits.” Alden, 527 U.S. at 724. While the

text of the Eleventh Amendment did not “codify[] the

traditional understanding of sovereign immunity,”

id. at 723, this Court has recognized that “the

sovereign immunity of the States neither derives

from, nor is limited by, the terms of the Eleventh

10

Amendment,” id. at 713; see also Seminole Tribe of

Florida, 517 U.S. at 70. Instead, the Eleventh

Amendment points to “the broader concept of

immunity, implicit in the Constitution.” Coeur

d’Alene Tribe of Idaho, 521 U.S. at 267-68; see also

Fed. Mar. Comm’n, 535 U.S. at 753 (acknowledging

that “the Eleventh Amendment... is but one

particular exemplification of [the States’

immunity’); Blatchford, 501 U.S. at 779 (confirming

that the Eleventh Amendment is important because

of “the presupposition of our Constitution which it

confirms: that the States entered the federal system

with their sovereignty intact”).

B. For at least two reasons, the immunity

implicit in the Constitution’s structure includes

immunity for States from suits brought in other

States’ courts.

First, this Court’s post-Hall understanding of the

Eleventh Amendment and the Constitution’s

structure would make little sense if States could be

sued in the courts of other States without consent. If

the immunity implicit in the Constitution requires

broadly construing the Eleventh Amendment to

prohibit all non-consensual suits brought against a

State in federal court by a citizen of another State, it

logically follows that States should also be immune

from suit in the potentially biased courts of other

States. U.S. Const. amend. XJ. Otherwise, the

States would have “perversely foreclosed the neutral

federal forums only to be left to defend suits in the

11

courts of other States.” Hall, 440 U.S. at 437

(Rehnquist, J., dissenting).

Second, several constitutional provisions evince a

design by the founders to ensure the availability of a

“neutral” federal forum for those cases in which a

State is properly a party. Hall, 440 U.S. at 437

(Rehnquist, J., dissenting); cf. Amy Woolhandler,

Interstate Sovereign Immunity, 2006 Sup. Ct. Rev.

249, 259-63. This Court has original jurisdiction

over suits between two or more States. U.S. Const.

art. III, § 2, cls. 1-2. And the federal courts have

jurisdiction over consensual suits “between a State

and Citizens of another State.” U.S. Const. art. III, §

2, cl. 1. As recognized by Edmund Randolph, the

first Attorney General of the United States, implicit

in this design is the understanding that States have

the right to assert immunity in the courts of other

States. In his 1790 Report on the Judiciary to the

House of Representatives, Randolph explained that

the Constitution confirmed that the States would

remain immune from suits in the courts of others

States “by establishing a common arbiter in the

federal judiciary, whose constitutional authority may

administer redress.” 4 THE DOCUMENTARY HISTORY

OF THE SUPREME COURT OF THE UNITED STATES,

1789—1800 130 (Maeva Marcus, ed., 1992).

12

II. THE PRE-RATIFICATION HISTORY OF THE

STATES’ SOVEREIGN IMMUNITY MAKES PLAIN

THAT THIS IMMUNITY EXTENDS TO SUITS

BROUGHT IN ANY FOREIGN COURTS, INCLUDING

STATE COURTS

A. “[H]istory and experience, and the established

order of things” are also relevant to the scope of the

States’ sovereign immunity. Alden v. Maine, 527

U.S. 706, 727 (1999) (quoting Hans v. Louisiana, 134

U.S. 1, 14 (1890)). The States retain the immunity

that they “enjoyed before the ratification of the

Constitution . . . except as altered by the plan of the

Convention or certain constitutional Amendments.”

Id. at 713. To determine the scope of the States’

immunity, this Court has thus examined historical

evidence, including “the ratification debates and the

events leading to the adoption of the Eleventh

Amendment,” which “reveal the original

understanding of the States’ constituticual immunity

from suit.” Jd. at 726.

Both before and after Hall, this Court has relied

on ratification debates and other historical evidence

to determine the scope of the States’ immunity in a

number of contexts not specifically addressed in

those debates. Alden, 527 U.S. at 716-17. For

instance, although the ratification debates focused on

whether a State could be sued by an individual, this

Court has relied on evidence of the understanding of

immunity at the time of ratification to conclude that

a State is immune from suits by federal corporations,

Smith v. Reeves, 178 U.S. 436, 447—49 (1900), foreign

13

nations, Principality of Monaco v. Mississippi, 292

US. 313, 322-32 (1934), and Indian tribes,

Blatchford v. Native Village of Noatak, 501 U.S. 775,

779-82 (1991). And although the ratification debates

centered on the question of the States’ immunity

from suit in federal courts, this Court has relied on

evidence of the understanding of immunity at the

time of ratification to conclude that States are

immune from suits in their own state courts, Alden,

527 U.S. at 741—43, and in federal administrative

agencies, Federal Maritime Commission v. South

Carolina State Ports Authority, 535 U.S. 743, 754-61

(2002). Hall's refusal to consider evidence of the

understanding of sovereign immunity at the

founding, as well as its dismissal of the ratification

debates because those debates focused on questions

of federal jurisdiction, cannot be reconciled with this

approach. 440 U.S. at 418-20.

B. A review of the historical evidence reveals

that the States’ immunity from suit in the courts of

sister States was assumed at the time of ratification.

Immunity from suit was an essential attribute of

sovereignty at the founding. Alden, 527 U.S. at 714—

15. Absolute immunity from suit in the absence of

consent inhered in the nature of sovereignty under

English law. Ibid. Blackstone, “whose works

constituted the preeminent authority on English law

for the founding generation,” id. at 715, explained

that “no suit or action can be brought against the

king, even in civil matters, because no court can have

14

jurisdiction over him.” 1 W._ Blackstone,

COMMENTARIES ON THE LAWS OF ENGLAND 235 (1765).

The leading treatise on international law at the time

took the same approach, explaining that “fo]ne

sovereign cannot make himself the judge of the

conduct of another.” Emmerich de Vattel, THE LAW

OF NATIONS OR PRINCIPLES OF THE LAW OF NATURE

APPLIED TO THE CONDUCT AND AFFAIRS OF NATIONS

AND SOVEREIGNS 155 (Book II, Ch. 4, § 55) (J. Chitty

ed., 1883).2 This was accepted wisdom by the States

at the time of the founding: “[T]he doctrine that a

sovereign could not be sued without its consent was

universal in the States when the Constitution was

drafted and ratified.” Alden, 527 U.S. at 715-16.

2 James Madison relied on Vattel as an authoritative source of

the law of nations, e.g., Letter from James Madison to Thomas

Jefferson (Jan. 9, 1785), reprinted in 7 The Papers of Thomas

Jefferson 588 (Julian P. Boyd ed., 1953), available at

http://founders.archives.gov/?q=Vattel&s=1111311113&sa=&r=

36&sr=, and Thomas Jefferson explained that Vattel “ha[d]

been most generally the guide” on the “law of nations,” e.g.,

Letter from James Madison to Thomas Jefferson (Jan. 7, 1785),

reprinted in 7 The Papers of Thomas Jefferson 588 (Julian P.

Boyd ed. 1953), available at http://founders.archives.gov/

2q=Vattel&s=1311311113&sa=&r=96&sr=. Vattel was also

cited in two of the State conventions to ratify the Constitution.

2 Debates in the Several State Conventions on the Adoption of

the Federal Constitution 454 (hereinafter Elliot’s Debates)

(James Wilson citing Vattel at the Pennsylvania ratification

convention); 4 Elliot's Debates 278 (Charles Pinckney

explaining at the South Carolina ratification convention that

Vattel was “one of the best writers on the law of nations”).

15

Most relevant for the present case, the pre-

ratification understanding of the sovereign immunity

enjoyed by States extended to cases brought in the

courts of their sister States. The decision of the

Pennsylvania Court of Common Pleas in Nathan v.

Virginia, 1 U.S. (1 Dall.) 77 (1781), is particularly

instructive. In that case, a citizen of Pennsylvania

sought to attach property of Virginia located in

Philadelphia Harbor. /d. at 77-78. The Attorney

General of Pennsylvania argued “[t]hat a sovereign,

when in a foreign country, is always considered by

civilized nations, as exempt from its jurisdiction,

privileged from arrests, and not subject to its laws.”

Id. at 78. The Pennsylvania Court of Common Pleas

agreed, holding that Virginia was immune. /d. at 80.

Nathan was well-known at the time of the

founding. While the case was pending, the Virginia

delegates to the Confederation Congress, including

James Madison, wrote a letter that argued for the

dismissal of the case because it required Virginia to

risk its property without appearing or to “abandon

its Sovereignty by descending to answer before the

Tribunal of another Power.” Letter from Virginia

Delegates to Supreme Executive Council of

Pennsylvania (July 9, 1781), reprinted in 3 The

Papers of James Madison 184 (William T.

16

Hutchinson et. al. eds., 1963).3 The Virginia

delegates explained that allowing the suit to proceed

would be “derogatory to the Rights of Sovereignty of

the State of Virginia.” Jbid.4 Later, the Attorney

General of Virginia, Edmund Randolph, appointed

John Marshall as one of two arbitrators, pursuant to

a resolution of the Virginia General Assembly, to

resolve the dispute between Virginia and Nathan

after the Pennsylvania court dismissed Nathan’s

suit. 8 THE PAPERS OF JAMES MADISON 68 n.l

(Robert A. Rutland et al. ed., 1973).5 And four

years later, the uecision of the Pennsylvania court to

dismiss was published in the first volume of the

United States Reports. 1 U.S. (1 Dall.) at 77.

Though there was no specific consideration of the

question, statements during the ratification debates

confirm that the States’ immunity continued to be

understood to include immunity from suit in the

courts of other States. Advocates of the Constitution

3 This letter may be found at Founders Online, National

Archives, http://founders.archives.gov/?q=Nathan%20NEAR%

2F20%20Virginia&s=1111311111&sa-&r=14&sr=.

4 The delegates noted that even if Nathan could not bring his

action in Virginia’s courts, “still the Case would not be without

Remedy; as on Petition to the Legislature, the supreme

Authority of the State, it would no doubt be attended to, and

redressed.” /bid.

5 This source may be accessed at http://founders.archives.

gov/?q=Nathan%20NEAR%2F20%20Virginia&s=1111311111&s

a=&r=38&sr=.

17

spoke in broad terms that presumed immunity in all

courts, unless expressly surrendered, when they

assured the people that the States would be immune

from suit in federal court. Alexander Hamilton

explained that immunity from the suit of an

individual was “inherent in the nature of

sovereignty.” The Federalist No. 81, p. 486 (C.

Rossiter ed., 1961). Hamilton went on to explain

that immunity was “now enjoyed .. . by every State

in the Union” and that unless “there is a surrender of

this immunity in the plan of the convention, it will

remain with the States.” Jd. at 487. James Madison

assured the Virginia Convention that “[i]t is not in

the power of individuals to call any state into court,”

and John Marshall assured that Convention that

“fi]Jt is not rational to suppose that the sovereign

power Should be dragged before a court.” 3 Debates

in the Several State Conventions on the Adoption of

the Federal Constitution 533, 555 (J. Elliot 2d. ed.

1836) (hereinafter Elhot’s Debates).

Even the few Federalists who believed that

Article III abrogated the States’ immunity in federal

courts shared the understanding that the States

would still be immune from suit in the courts of

sister States. One prominent supporter of

permitting suits against States in federal court

premised his argument on the continued immunity of

States in the courts of other States. Edmund

Pendleton argued to the Virginia Convention that

“(t]he impossibility of calling a sovereign state before

the jurisdiction of another sovereign state[] shows

18

the propriety and necessity of vesting [a federal]

tribunal with the decision of controversies to which a

state shall be a party.” 3 Elliot’s Debates 549.

Attorney General Randolph’s report on the

judiciary to the House of Representatives—delivered

shortly after the ratification of the Constitution—is

yet more evidence that the States were understood to

have retained immunity under the Constitution from

suit in the courts of other States. Randolph believed

the immunity of a State in the courts of another

State to be as settled a principle as immunity of the

United States itself from suits in state courts. “In

like manner,” he confirmed that “as far as a

particular state can be a party defendant, a sister

state cannot be her judge.” 4 THE DOCUMENTARY

HISTORY OF THE SUPREME COURT OF THE UNITED

STATES, 1789-1800 130 (Maeva Marcus, ed., 1992).

He explained that the “unconfederated” States

“would be as free from mutual control as other

disjoined nations.” Jbid. Nothing in the Constitution

“narrow|[ed] this exemption.” Ibid.

This historical evidence demonstrates that Hall’s

claim that “the question whether one State might be

subject to suit in the courts of another State was

apparently not a matter of concern when the new

Constitution was being drafted and ratified,” 440

U.S. at 418-19, is true in only one sense. “[{T]he

framers would not have thought such suits possible,

and therefore were not worried that they would

occur. Amy Woolhandler, Interstate Sovereign

19

Immunity, 2006 Sup. Ct. Rev. 249, 252. In short,

“(t]he only reason why this immunity did not receive

specific mention is that it was too obvious to deserve

mention.” MHall, 440 U.S. at 431 (Blackmun, J.,

dissenting). As even Hall recognized, “the doctrine of

sovereign immunity was a matter of importance in

the early days of independence,” and many States

were concerned about being sued in the courts of

another sovereign because they “were heavily

indebted as a result of the Revolutionary War.” 440

U.S. at 418. Given the “well-known creativity,

foresight, and vivid imagination of the Constitution’s

opponents, the silence is [thus] most instructive.”

Alden, 527 U.S. at 741. The best explanation for the

lack of specific debate about the abrogation of the

States’ immunity in the courts of other States is that

this immunity “was a principle so well established

that no one conceived it would be altered by the new

Constitution.” Ibid.

In fact, the question of a State’s immunity in the

courts of another State was so well understood from

the time of the founding going forward that this

Court’s decisions prior to Hall routinely described

the States’ immunity in such terms. This Court

explained in 1857 that “ijt is an established

principle of jurisprudence in all civilized nations that

the sovereign cannot be sued in its own courts, or in

any other, without its consent and permission.”

Beers v. Arkansas, 61 U.S. (20 How.) 527, 529 (1857)

(emphasis added); Cunningham v. Macon &

Brunswick R.R. Co., 109 U.S. 446, 451 (1883)

20

(explaining that the States are immune from suit in

“any court in this country”). In Hans v. Louisiana,

this Court explained that “[t]he suability of a state,

without its consent, was a thing unknown to the

law.” 134 U.S. 1, 16 (1890). And again in 1961, less

than two decades before Hall, this Court explained

specifically that state courts had “no power to bring

other States before them.” W. Union Tel. Co. v.

Pennsylvania, 368 U.S. 71, 80 (1961).

Even The Schooner Exchange v. McFaddon, 7

Cranch (11 U.S.) 116 (1812), on which Hall relied,

supports a broad historical understanding of the

immunity of the States. In The Schooner Exchange,

the Supreme Court explained that a sovereign

exercises absolute territorial jurisdiction, and that

any exceptions to such jurisdiction must be “traced

up to the consent of the nation itself.” 7 Cranch at

136. The Court further explained, however, that

such consent may be implied from the common

“usages and received obligations of the civilized

world.” Jd. at 137. And those usages and obligations

dictated that foreign sovereigns, foreign ministers,

and foreign armies with a right of passage are all

understood to enter territory on an _ implicit

understanding that they will be immune from suit.

Id. at 137-41. In The Schooner Exchange, the Court

extended that understandirg of immunity from

jurisdiction to a French ship of war that had come

into an American port under friendly circumstances.

Id. at 145-46.

21

Halls reliance on The Schooner Exchange was

misplaced. It correctly read The Schooner Exchange

for the proposition that States, like other sovereign

entities, can expressly choose to grant immunity

from the jurisdiction of their courts. It also correctly

recognized that there may be other sources of

immunity, such as “a federal rule of law implicit in

the Constitution.” Hall, 440 US. at 418. The

mistake of the Hall majority was its failure to

recognize the constitutional rule. As explained

above, the historical understanding of the immunity

retained by the States under the Constitution

establishes that each State is constitutionally

immune from suit in the courts of other States.

Ill. THE DENIAL OF THE STATES’ SOVEREIGN

IMMUNITY HAS IMPOSED SUBSTANTIAL COSTS

UPON THE STATES AND THEIR CITIZENS

A. Limitations on the States’ sovereign

immunity “denigrates the separate sovereignty of the

States.” Alden v. Maine, 527 U.S. 706, 749 (1999).

Sovereign immunity “accords the States the respect

owed them.” Puerto Rico Aqueduct and Sewer Auth.

v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993).

Failure to accord this immunity subjects a State to

“the indignity of . . . the coercive process of judicial

tribunals at the instance of private parties,” Alden,

527 U.S. at 749 (quoting Jn re Ayers, 123 U.S. 443,

505 (1887)), and allows for “unanticipated

intervention in the processes of government,” id. at

750 (quoting Great N. Life Ins. Co. v. Read, 322 U.S.

47, 53 (1944)).

22

This indignity is suffered “regardless of the

forum,” Alden, 527 U.S. at 749, though it is

particularly harmful to permit a court from one State

to subject another State to suit. An exercise of

jurisdiction over a State by another State allows the

courts of the second State to decide what policy goals

the first State should pursue and how it should

pursue those goals. These out-of-State suits “place

an unwarranted strain on the States’ ability to

govern in accordance with the will of their citizens,”

and inject another State’s courts into “the heart of

the political process” of a State. Jd. at 750—51.

States can be “subject to and controlled by the

mandates of judicial tribunals without their consent,

and in favor of individual interests” in important

areas of policy. /bid. (quoting Jn re Ayers, 123 U.S.

at 505). And the courts of the other State may be

tempted to rule in a manner that benefits their own

State’s citizens, fisc, and policy priorities.

These harms occur whether a suit seeks to enjoin

a State’s policies or to recover a money judgment.

States must use scarce resources to meet a number

of competing policy goals, and “it is inevitable that

difficult decisions involving the most sensitive and

political judgments must be made.” Alden, 527 U.S.

at 751. The imposition of a money judgment against

a State’s treasury diminishes the available resources

by judicial fiat, and thereby undermines the State’s

ability to reach a “balance between competing

interests . . . after deliberation by the political

process established by the citizens of the State.”

23

Ibid. In short, refusal to recognize the States’

sovereign immunity from damage suits deprives the

States of needed resources to pursue their own

democratically determined objectives.

B. Since this Court’s Hall decision, state courts

throughout the country have imposed just such

sovereign harms upon unconsenting States.

A number of state courts have exercised

jurisdiction in cases that involve sensitive policy

decisions of another State. For example, in Faulkner

v. University of Tennessee, 627 So.2d 362 (Ala. 1992),

the Supreme Court of Alabama held that Alabama

courts would review the application of educational

standards at a university operated by another State.

A resident of Alabama sued the University of

Tennessee for the withdrawal of a degree. After a

faculty panel concluded that the _ student’s

dissertation did not meet the requirements for a

doctorate, the student refused an administrative

hearing in Tennessee and instead sued the

University of Tennessee in Alabama state court. Id.

at 363-64. The Alabama Supreme Court allowed the

suit for money damages, injunctive relief, and

declaratory relief to proceed, refusing to extend to

the University of Tennessee the same immunity that

an instrumentality of Alabama would receive. Jd. at

‘’ 364-66.

State courts have also permitted suits against

other States based upon those States’ law

24

enforcement policies. In Head v. Platte County,

Missouri, 749 P.2d 6, 7-8 & 10 (Kan. 1988), a

resident of Kansas sued a political subdivision and

officer of Missouri for policies related to arrest

warrants. The Kansas resident alleged that she had

suffered injuries due to a failure by the Missouri

entity to adequately train employees and a failure “to

establish and implement policies concerning the

filing and execution of arrest warrants.” Id. at 8.

The Kansas court decided to exercise jurisdiction

based in part on the conclusion that “Kansas courts

should give primary regard to the rights of its own

citizens and persons within the protection of this

state” instead of the sovereign interest of other

States. Jd. at 10. Similarly, in Mianecki v. Second

Judicial District Court, 658 P.2d 422, 423 (Nev.

1983), the Wisconsin Department of Corrections

permitted a sex offender on probation to move to

Nevada. When the probationer committed a sexual

assault, the victim sued Wisconsin for failure to

warn and failure to supervise the probationer. I[bid.

The Nevada Supreme Court explained that Nevada

courts should review Wisconsin’s supervision of the

probationer because “greater weight is to be accorded

Nevada’s interest in protecting its citizens from

injurious operational acts committed within its

borders by employees of sister states, than

Wisconsin’s policy favoring governmental immunity.”

Id. at 425.

Finally, numerous money judgments have been

entered against States or state entities by the courts

25

of other States. Struebin v. Illinois, 421 N.W.2d 874

(lowa 1988), provides a_ particularly striking

example. In that case, the Supreme Court of lowa

permitted two estates to sue Illinois for alleged

negligent maintenance of a portion of interstate

highway in Iowa that Illinois had agreed to maintain

in an interstate compact. Jd. at 875. An lowa trial

court entered two judgments against the State of

Illinois totaling $118,800. Jbid. After the Illinois

Court of Claims denied recovery on the judgment

because recovery from the State was time barred

under Illinois law, the Supreme Court of lowa

affirmed a garnishment of taxes owed to State of

Illinois by an Illinois corporation with a plant in

Iowa. Id. at 875-77; Struebin v. Illinois, 383 N.W.2d

516, 517 (lowa 1986). The Iowa Supreme Court

concluded that “garnishment of tax revenues is not

an interference with Illinois’ sovereign power to levy

and distribute taxes” and that “there [was] no

interference with Illinois[’] sovereign power to tax.”

Struebin, 421 N.W.2d at 876; see also Reynolds uv.

Lancaster Cnty. Prison, 739 A.2d 413, 417 (N.J. App.

Ct. 1999) (multi-million dollar verdict against a

Pennsylvania prison); Kent Cnty. v. Shepherd, 713

A.2d 290, 304 (Del. 1998) ($600,000 judgment

against the State of Maryland after an accident

involving a deputy sheriff); Laconis v. Burlington

Cnty. Bridge Comm'n, 583 A.2d 1218, 1220~—23 (Pa.

Super. Ct. 1990) ($1.75 million damages judgment

against a subdivision of New Jersey in a case arising

from bridge maintenance); Hernandez v. City of Salt

Lake, 686 P.2d 251, 506-08 (Nev. 1984) ($225,000

judgment against a subdivision of Utah after an

arrest and imprisonment).

C. This case—in which a California state agency

has been subject to litigation in an out-of-State court

for more than 15 years—is a case study in the harms

imposed on States by the denial of immunity in

courts in other States.

The Franchise Tax Board of California (“FTB”)

conducts audits to enforce California’s income tax on

its residents, and did so here after Gilbert Hyatt

purported to move out of the State. Specifically,

Hyatt filed a tax return with California in 1991 in

which he claimed that he moved to Nevada and

ceased to be a resident of California days before he

received s. bstantial patent licensing fees. Pet. App.

at 4. Hyatt did not report the licensing fees on his

tax return. Ibid. These discrepancies caused FTB to

initiate an audit of Hyatt’s 1991 tax return. Ibid.

That audit concluded that Hyatt had not moved to

Nevada until April 1992 but had staged an earlier

move to avoid California’s income tax for his patent

licensing income. Jd. at 6. FTB determined that

Hyatt owed California $1.8 million in taxes from

1991 and added $2.6 million in penalties for fraud

and interest. Jbid. A second audit found that Hyatt

owed $6 million in taxes for 1992. Id. at 7.

Hyatt contested FTB’s actions. But he did not

limit that challenge to California’s procedure for

administrative review of tax audits. Pet. App. at 7.

Instead, Hyatt also sued FTB in Nevada court

seeking declaratory relief, compensatory damages,

and punitive damages for several alleged intentional!

torts. Id. at 7-8, 11.

FTB received less favorable treatment in the

courts of Nevada than it would have received in its

own courts. Although FTB would be completely

immune from suit for an audit in California court,

Cal. Gov’t Code § 860.2, the Nevada courts denied

complete immunity to FTB. Pet. App. 10. Instead,

the Supreme Court of Nevada held that California

was entitled to “partial immunity equal to the

immunity a Nevada government agency would

receive” in a Nevada court. /bid.

On a writ of certiorari, this Court agreed that the

Full Faith and Credit Clause did not require Nevada

to extend to FTB the full immunity that the agency

would have received in a California court, Franchise

Tax Bd. of California v. Hyatt (“Hyatt I), 538 U.S.

488 (2003), although several Justices questioned

whether the Court’s recent decisions suggested that

FTB should have sovereign immunity from suit in an

out-of-State court, Tr. of Oral Argument at 25:19—

32:6, Hyatt I, 538 U.S. 488 (No. 02-42). The Court

recognized that “the power to promulgate and

enforce income tax laws is an essential attribute of

sovereignty,” but it struggled to find a “principled

distinction between [a State’s] interest in tort claims

arising out of its university employee’s automobile

accident, at issue in Hall, and [a State’s] interests in

28

tort claims . . . arising out of its tax collection

agency's residency audit.” Hyatt J, 538 U.S. at 498.

The Court thus concluded that “[t]he Nevada

Supreme Court [had] sensitively applied principles of

comity.” Id. at 499. At oral argument, some Justices

suggested that Hall might no longer be viable and

that sovereign immunity might be available, Tr. of

Oral Argument at 25:19—32:6, Hyatt I, 538 U.S. 488

(No. 02-42), but the Court declined to address the

question because FTB did not ask it to do so at the

time. Hyatt J, 538 U.S. at 497.

When the case returned to the Nevada courts,

matters worsened for FTB. The California state

agency did not even continue to receive the same

treatment that a Nevada state agency would have

received. A Nevada trial court conducted a four-

month’trial several years after this Court’s decision.

At the’end of that trial, the Nevada trial court ruled

for Hy@tt on each of his intentional tort claims. Pet.

App. @. And although Nevada law would have

limited damages against Nevada and barred punitive

damages, Nev. Rev. Stat. § 41.035, the Nevada trial

court awarded almost half a billion dollars to Hyatt,

including a $250 million punitive damages award

and a compensatory damages award in excess of the

statutory cap. Pet. App. 11.

When this case returned to the Supreme Court of

Nevada, that court agreed with the trial court’s

refusal to extend to FTB the compensatory damages

cap that would have applied to the State of Nevada’s

29

agencies. Although it ruled for the California state

agency on several of Hyatt’s claims and struck the

punitive damages award, the Nevada Supreme Court

affirmed the imposition of damages exceeding the

statutory cap because Nevada’s “policy interest in

providing adequate redress to Nevada citizens is

paramount to providing FTB a statutory cap on

damages under comity.” Pet. App. at 45. The court

did not consider California’s interest in the

enforcement of its tax laws. Id. at 42-46.

This case highlights all of the harms that could

befall a State under Nevada v. Hall. After more than

a decade and a half of costly litigation, California is

now liable for a judgment of over a million dollars for

fraud and must endure another trial to decide

damages on a claim of intentional infliction of

emotional distress. Pet App. at 72. Moreover, the

success of this litigation has encouraged similar

suits, which may force FTB te alter its procedures for

enforcing California’s tax policies. Pet. at 32—33.

IV. ADDITIONAL CONSIDERATIONS MILITATE IN

FAVOR OF OVERRULING HALL

A. Hall suggested that some of the problems of

permitting unconsented suits against a State in the

courts of another State could be avoided by limiting

another State’s exercise of jurisdiction to situations

that “pose{} no substantial threat to our

constitutional system of cooperative federalism.”

Nevada v. Hall, 440 U.S. 410, 424 n.24 (1979). But

Hall’s hypothetical preservation of immunity fails,

30

for at least two reasons, to provide adequate

protection to the States from the costs imposed by

suits in the courts of other States.

First, no clear standard can establish which

cases pose a “substantial threat” to cooperative

federalism. See Hail, 440 U.S. at 429 (Blackmun, J.

dissenting) (“[I]t is hard to see just how the Court

could use a different analysis or reach a different

result in a different case.”); id. at 442-43 (Rehnquist,

J., dissenting) (“I do not see how the Court’s

suggestion that limits on state-court jurisdiction may

be found in principles of ‘cooperative federalism’ can

be taken seriously.”). As explained above, this Court

has already examined the possibility of such a

distinction under the Full Faith and Credit Clause in

this very case but failed to find a “principled

distinction” between cases that pose a substantial

threat and those that do not. Hyatt I, 538 U.S. 488,

498 (2003). After all, every case brought in the court

of another State undermines a State’s sovereignty.

See pp. 21-22, supra.

Second, even if this Court could devise a

standard to distinguish between cases that pose a

substantial threat to cooperative federalism and

those that pose a lesser threat, that standard is

unlikely to be enforced rigorously, if at all. A state

court in another State has an undeniable incentive to

be less than diligent in applying such a standard in

any case involving relief for that other State or its

citizens, as most of these out-of-State suits do. And

31

this Court would be the only neutral arbiter to

review such assumptions of jurisdiction—a relatively

distant and illusory threat for a local] trial court.

B. The rule in Nevada v. Hall also is not

necessary to ensure that injured parties can seek

relief. Sovereign immunity “bars suits only in the

absence of consent.” Alden v. Maine, 527 U.S. 706,

755 (1999). Although this Court has held that States

are immune from suit in their own courts, id., at

74143, many States have already chosen to waive

their immunity in their own courts in some

circumstances. E.g., Alaska Stat. §§ 09.50.250 et

seq.; Fla. Stat. Ann. § 768.28; Ky. Rev. Stat. §§

44.070 et seq.; Neb. Rev. St. §§81-8,209 et seq.; S.C.

Code Ann. §§ 15-78-10 et seq.; W. Va. Code §§ 14-2-1

et seq. This waiver permits injured individuals to

receive compensation without injuring’ the

sovereignty of the States.

States could even choose to consent to suits in

the courts of other States and might agree to submit

to suits in each other’s courts. Importantly, any

decision to consent to suit in any court would be

made by the States as sovereigns instead of by

judicial! fiat.

7 * *

This Court should overturn Nevada v. Halli and

return to the States the immunity from suit in the

courts of other States that is implicit in the

Constitution and consistent with the pre-ratification

32

history. Because this immunity from suit is

important to the sovereign interests of the States,

forty-five States have joined this brief in support of

overruling Hall and a total of forty-five States have

joined briefs that argue that Hall should be

overruled. See p. 1 n.1, supra.

CONCLUSION

The decision of the Supreme Court of Nevada

should be reversed.

33

Respectfully submitted,

Patrick Morrisey

Attorney General

Elbert Lin

Solicitor General

Counsel of Record

Misha Tseytlin

General Counsel

Gilbert Dickey

J. Zak Ritchie

Assistant Attorneys

General

OFFICE OF THE

ATTORNEY GENERAL

State Capitol

Building 1, Room E-26

Charleston, WV 25305

Elbert. Lin@wvago.gov

(304) 558-2021

Counsel for Amicus Curiae

State of West Virginia

SEPTEMBER 10, 2015

LUTHER STRANGE

Attorney General

State of Alabama

MARK BRNOVICH

Attorney General

State of Arizona

LESLIE RUTLEDGE

Attorney General

State of Arkansas

CYNTHIA COFFMAN

Attorney General]

State of Colorado

GEORGE JEPSEN

Attorney General

State of Connecticut

MATTHEW DENN

Attorney General

State of Delaware

PAMELA JO BONDI

Attorney General

State of Florida

34

SAM OLENS

Attorney General

State of Georgia

DOUGLAS S. CHIN

Attorney General

State of Hawaii

LAWRENCE G. WASDEN

Attorney General

State of Idaho

LISA MADIGAN

Attorney General

State of Illinois

GREGORY F. ZOELLER

Attorney General

State of Indiana

TOM MILLER

Attorney General

State of lowa

DEREK SCHMIDT

Attorney General

State of Kansas

JACK CONWAY

Attorney General

Commonwealth

of Kentucky

JAMES D. “BUDDY”

CALDWELL

Attorney General

State of Louisiana

JANET T. MILLS

Attorney General

State of Maine

BRIAN E. FROSH

Attorney General

State of Maryland

MAURA HEALEY

Attorney General

Commonwealth

of Massachusetts

BILL SCHUETTE

Attorney General

State of Michigan

LORI SWANSON

Attorney General

State of Minnesota

35

CHRIS KOSTER

Attorney General

State of Missouri

TIMOTHY C. Fox

Attorney General

State of Montana

DOUG PETERSON

Attorney General

State of Nebraska

ADAM PAUL LAXALT

Attorney General

State of Nevada

JOSEPH A. FOSTER

Attorney General

State of

New Hampshire

JOHN J. HOFFMAN

Acting Attorney

General!

State of New Jersey

Roy COOPER

Attorney General

State of

North Carolina

WAYNE STENEHJEM

Attorney General

State of North Dakota

MICHAEL DEWINE

Attorney General

State of Ohio

E.. SCOTT PRUITT

Attorney General

State of Oklahoma

ELLEN F. ROSENBLUM

Attorney General

State of Oregon

KATHLEEN G. KANE

Attorney General

Commonwealth

of Pennsylvania

PETER F. KILMARTIN

Attorney General

State of Rhode Island

MARTY J. JACKLEY

Attorney General

State of South Dakota

HERBERT H. SLATERY

Ill

Attorney General

State of Tennessee

KEN PAXTON

Attorney General

State of Texas

SEAN REYES

Attorney General

State of Utah

WILLIAM H. SORRELL

Attorney General

State of Vermont

MARK R. HERRING

Attorney General

Commonwealth

of Virginia

ROBERT W. FERGUSON

Attorney General

State of Washington

BRAD D. SCHIMEL

Attorney General

State of Wisconsin

PETER K. MICHAEL

Attorney General

State of Wyoming

37