See, e.g., Quern v. Jordan, 440 U.S. 332, 340-41 (1979): "Mr. Justice BRENNAN in his opinion concurring in the judgment argues that our holding in *Edelman* that § 1983 does not abrogate the States' Eleventh Amendment immunity is 'most likely incorrect.' To reach this conclusion he relies on 'assum[ptions]' drawn from the Fourteenth Amendment, on 'occasional remarks' found in a legislative history that contains little debate on § 1 of the Civil Rights Act of 1871, 17 Stat. 13, the precursor to § 1983, on the reference to 'bodies politic' in the Act of Feb. 25, 1871, 16 Stat. 431, the 'Dictionary Act,' and, finally on the general language of § 1983 itself. But, unlike our Brother BRENNAN, *we simply are unwilling to believe, on the basis of such slender 'evidence,' that Congress intended by the general language of § 1983 to override the traditional sovereign immunity of the States*. We therefore conclude that neither the reasoning of *Monell* or of our Eleventh Amendment cases subsequent to *Edelman*, nor the additional legislative history or arguments set forth in Mr. Justice BRENNAN's concurring opinion, justify a conclusion different from that which we reached in *Edelman.*
- Jim On Tue, Apr 18, 2017 at 2:44 PM, Eric J Segall <eseg...@gsu.edu> wrote: > There's also language in other cases involving federal jurisdiction that > Congress didn't intend 1983 to abrogate immunity. Will is only a state > court case. > > Best, > > Eric > > Sent from my iPhone > > On Apr 18, 2017, at 5:40 PM, Laycock, H Douglas (hdl5c) < > hd...@virginia.edu> wrote: > > Because the Court held that neither a state, nor a state official in his > official capacity, is a “person” within the meaning of § 1983. It is a > slightly round about way of saying that § 1983 does not override sovereign > immunity. Will v. Michigan Dept. of State Police. > > > > Douglas Laycock > > Robert E. Scott Distinguished Professor of Law > > University of Virginia Law School > > 580 Massie Road > > Charlottesville, VA 22903 > > 434-243-8546 <(434)%20243-8546> > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@ > lists.ucla.edu <religionlaw-boun...@lists.ucla.edu>] *On Behalf Of *Ashutosh > A Bhagwat > *Sent:* Tuesday, April 18, 2017 5:31 PM > *To:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> > *Subject:* Re: Is Trinity Lutheran Church moot? > > > > I may be completely wrong here, but if this is a section 1983 case > enforcing the Religion Clauses as incorporated through the 14th Amendment, > does that trump 11th Amendment immunity? What am I missing? > > > > Ash Bhagwat > > Martin Luther King, Jr. Professor of Law > > UC Davis School of Law > (530) 752-8687 > > Find my papers at: > http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=193880 > <https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fpapers.ssrn.com%2Fsol3%2Fcf_dev%2FAbsByAuth.cfm%3Fper_id%3D193880&data=02%7C01%7Cesegall%40gsu.edu%7C6a35bc4fcb7c45205bfe08d486a38b95%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636281484364514771&sdata=Av4bcO%2FXXog5oVlalmHJ11msNrKAuEDKd77kZSt755Q%3D&reserved=0> > > > ------------------------------ > > *From:* religionlaw-boun...@lists.ucla.edu <religionlaw-bounces@lists. > ucla.edu> on behalf of Laycock, H Douglas (hdl5c) <hd...@virginia.edu> > *Sent:* Tuesday, April 18, 2017 2:21 PM > *To:* Law & Religion issues for Law Academics > *Subject:* RE: Is Trinity Lutheran Church moot? > > > > I haven’t looked at the complaint, but that has to be right. Damages for > delay could not be recovered from the state, or from any state official in > his official capacity, because of sovereign immunity. And they could not > be recovered from any state official in his personal capacity, because of > qualified immunity. There is certainly no clearly settled law in favor of > the church. > > > > So injunction or declaratory judgment against an official in his or her > official capacity are the only possible remedies. > > > > Douglas Laycock > > Robert E. Scott Distinguished Professor of Law > > University of Virginia Law School > > 580 Massie Road > > Charlottesville, VA 22903 > > 434-243-8546 <(434)%20243-8546> > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@ > lists.ucla.edu <religionlaw-boun...@lists.ucla.edu>] *On Behalf Of *Eric > J Segall > *Sent:* Tuesday, April 18, 2017 5:13 PM > *To:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> > *Subject:* Re: Is Trinity Lutheran Church moot? > > > > Doug, is the complaint seeking money as damages for wrongful denial? That > seems to run into the 11th. I assumed plaintiffs can only ask for > prospective relief in this case. > > > > Best, > > > > Eric > > > Sent from my iPhone > > > On Apr 18, 2017, at 5:04 PM, Laycock, H Douglas (hdl5c) < > hd...@virginia.edu> wrote: > > Have they given the dollars? Or just said they will? > > > > The voluntary cessation doctrine is all about the just-said-they-will > cases. They might change their mind, and here there would seem to be a very > live threat that they will change their mind because they might be forced > to. > > > > Maybe there are countervailing considerations of constitutional avoidance > here. Maybe they should dig it. But they should not say it is moot unless > the dollars are actually transferred. > > > > Of course as with any justiciability doctrine, they can make it moot by > how they describe the facts. They can simply say there is no chance of a > policy reversal, even if that is obviously false. With five votes you can > do anything, as the saying goes. But I think that this case is not moot, at > least until the church gets the money. I assume that no one could sue under > Missouri law to force the state to reclaim the money after it’s paid out, > but I don’t actually know that. > > > > They have been holding *Douglas County Schools* for *Trinity Church*. *Douglas > County* presents more-or-less the same issue in the context of a school > choice program. A reasonable prediction is either GVR or cert denied, > depending on what happens on the merits in *Trinity Church*. But if *Trinity > Church* is digged, or held moot, then it seems likely that those who > voted to grant cert in that case will now vote to grant in *Douglas > County*. > > > > Full disclosure: I am on the briefs in *Douglas County*. But I write > about voluntary cessation under my Remedies hat. > > > > Douglas Laycock > > Robert E. Scott Distinguished Professor of Law > > University of Virginia Law School > > 580 Massie Road > > Charlottesville, VA 22903 > > 434-243-8546 <(434)%20243-8546> > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@ > lists.ucla.edu <religionlaw-boun...@lists.ucla.edu>] *On Behalf Of *Marty > Lederman > *Sent:* Tuesday, April 18, 2017 4:40 PM > *To:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> > *Subject:* Re: Is Trinity Lutheran Church moot? > > > > But Doug, the relied requested was simply the ability to compete for the > grant without the church disqualification -- and they've now received > precisely that. It's also not simply a policy change -- it is, presumably, > a conclusion that they are *legally required *not to exclude the church. > > > > Yes, it is true that if the agency gives the $$ to TLC, there might well > be a state-court lawsuit by a taxpayer--one that might one day reach the > SCOTUS. But why does that possibility make *this* case -- between the > church and the agency -- justiciable, when both of those parties (there is > no "other side") agree that the church should be eligible to compete, *and > *the church is receiving the requested relief? > > > > On Tue, Apr 18, 2017 at 4:32 PM, Laycock, H Douglas (hdl5c) < > hd...@virginia.edu> wrote: > > Giving the church the tires or the money would moot the case. But so far, > they have only announced a policy change, and that does not moot the > case—especially where, as here, the other side has a plausible claim and > could immediately sue the state officials to prevent them from granting the > money or the tires and to force them to reverse the policy change. A > decision to that effect could be reviewed in a different lawsuit, but that > is always true in voluntary cessation cases. If the policy is ever > reversed, the court could decide about it then. But the voluntary cessation > doctrine says that the plaintiff who has gotten this far is entitled to a > decision now, in this case. > > > > Douglas Laycock > > Robert E. Scott Distinguished Professor of Law > > University of Virginia Law School > > 580 Massie Road > > Charlottesville, VA 22903 > > 434-243-8546 <(434)%20243-8546> > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@ > lists.ucla.edu] *On Behalf Of *Marty Lederman > *Sent:* Tuesday, April 18, 2017 3:31 PM > *To:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> > *Subject:* Is Trinity Lutheran Church moot? > > > > Answer: Probably, but it may depend upon some still-uncertain facts: > > > > https://balkin.blogspot.com/2017/04/is-trinity-lutheran- > church-case-moot.html > <https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fbalkin.blogspot.com%2F2017%2F04%2Fis-trinity-lutheran-church-case-moot.html&data=02%7C01%7Cesegall%40gsu.edu%7C6dba6b66270549ffeb8708d4869e91c9%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636281462987771054&sdata=xdC1a62HrN9Y7tHOw1J7GrwTR%2F3d8y8rJKTHnCVGw8s%3D&reserved=0> > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > <https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Flists.ucla.edu%2Fcgi-bin%2Fmailman%2Flistinfo%2Freligionlaw&data=02%7C01%7Cesegall%40gsu.edu%7C6dba6b66270549ffeb8708d4869e91c9%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636281462987771054&sdata=%2F%2Bu1EGTho3HUZKaZKHROOGqLnxwFI2bFrOW9ioaUwus%3D&reserved=0> > > Please note that messages sent to this large list cannot be viewed as > private. 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