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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0548%3A13

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2015

## Text

‘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
I nc csi ateiniigiidingioiiediadialeaitienenniiiae i
aan aes i
i en iieetnaigepiientitlantatoomii iil
ee ON I I ncn ccsccceccnseemsssncnsenisennennecens l
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0548%3A13. Public record. Not legal advice.