Controversies Between a State and Citizens of Another State

The decision in Chisholm v. Georgia1077 that cases “between a state and citizens of another state” included those where a state was a party defendant provoked the proposal and ratification of the Eleventh Amendment, and since then controversies between a state and citizens of another state have included only those cases where the state has been a party plaintiff or has consented to be sued.1078 As a party plaintiff, a state may bring actions against citizens of other states to protect its legal rights or in some instances as parens patriae to protect the health and welfare of its citizens. In general, the Court has tended to construe strictly this grant of judicial power, which simultaneously comes within its original jurisdiction, by perhaps an even more rigorous application of the concepts of cases and controversies than that in cases between private parties.1079 This it does by holding rigorously to the rule that all the party defendants be citizens of other states1080 and by adhering to congressional distribution of its original jurisdiction concurrently with that of other federal courts.1081

Jurisdiction Confined to Civil Cases.

In Cohens v. Virginia,1082 there is a dictum to the effect that the original jurisdiction of the Supreme Court does not include suits between a state and its own citizens. Long afterwards, the Supreme Court dismissed an action for want of jurisdiction because the record did not show that the corporation against which the suit was brought was chartered in another state.1083 Subsequently, the Court has ruled that it will not entertain an action by a state to which its citizens are either parties of record or would have to be joined because of the effect of a judgment upon them.1084 In his dictum in Cohens v. Virginia, Chief Justice Marshall also indicated that perhaps no jurisdiction existed over suits by states to enforce their penal laws.1085 Sixty-seven years later, the Court wrote this dictum into law in Wisconsin v. Pelican Ins. Co.1086 Wisconsin sued a Louisiana corporation to recover a judgment rendered in its favor by one of its own courts. Relying partly on the rule of international law that the courts of no country execute the penal laws of another, partly upon the 13th section of the Judiciary Act of 1789, which vested the Supreme Court with exclusive jurisdiction of controversies of a civil nature where a state is a party, and partly on Justice Iredell’s dissent in Chisholm v. Georgia,1087 where he confined the term “controversies” to civil suits, Justice Gray ruled for the Court that for purposes of original jurisdiction, “controversies between a State and citizens of another State” are confined to civil suits.1088

The State’s Real Interest.

Ordinarily, a state may not sue in its name unless it is the real party in interest with real interests. It can sue to protect its own property interests,1089 and if it sues for its own interest as owner of another state’s bonds, rather than as an assignee for collection, jurisdiction exists.1090 Where a state, in order to avoid the limitation of the Eleventh Amendment, provided by statute for suit in the name of the state to collect on the bonds of another state held by one of its citizens, it was refused the right to sue.1091 Nor can a state sue the citizens of other states on behalf of its own citizens to collect claims.1092

The State as Parens Patriae.

The distinction between suits brought by states to protect the welfare of their citizens as a whole and suits to protect the private interests of individual citizens is not easily drawn. Thus, in Oklahoma v. Atchison, T. & S.F. Ry.,1093 the state was refused permission to sue to enjoin unreasonable rate charges by a railroad on the shipment of specified commodities, because the state was not engaged in shipping these commodities and had no proprietary interest in them. But, in Georgia v. Pennsylvania R.Co.,1094 a closely divided Court accepted a suit by the state, suing as parens patriae and in its proprietary capacity—the latter being treated by the Court as something of a makeweight—seeking injunctive relief against 20 railroads on allegations that the rates were discriminatory against the state and its citizens and their economic interests and that the rates had been fixed through coercive action by the northern roads against the southern lines in violation of the Clayton Antitrust Act. For the Court, Justice Douglas observed that the interests of a state for purposes of invoking the original jurisdiction of the Court were not to be confined to those which are proprietary but rather “embrace the so called ‘quasi-sovereign’ interests which . . . are ‘independent of and behind the titles of its citizens, in all the earth and air within its domain.’ ”1095

Discriminatory freight rates, the Justice continued, may cause a blight no less serious than noxious gases in that they may arrest the development of a state and put it at a competitive disadvantage. “Georgia as a representative of the public is complaining of a wrong which, if proven, limits the opportunities of her people, shackles her industries, retards her development, and relegates her to an inferior economic position among her sister States. These are matters of grave public concern in which Georgia has an interest apart from that of particular individuals who may be affected. Georgia’s interest is not remote; it is immediate. If we denied Georgia as parens patriae the right to invoke the original jurisdiction of the Court in a matter of that gravity, we would whittle the concept of justiciability down to the stature of minor or conventional controversies. There is no warrant for such a restriction.”1096

The continuing vitality of this case is in some doubt, as the Court has limited it in a similar case.1097 But the ability of states to act as parens patriae for their citizens in environmental pollution cases seems established, although as a matter of the Supreme Court’s original jurisdiction such suits are not in favor.1098

One clear limitation had seemed to be solidly established until later litigation cast doubt on its foundation. It is no part of a state’s “duty or power,” said the Court in Massachusetts v. Mellon,1099 “to enforce [its citizens’] rights in respect to their relations with the Federal Government. In that field, it is the United States and not the state that represents them as parens patriae when such representation becomes appropriate; and to the former, and not to the latter, they must look for such protective measures as flow from that status.” But, in South Carolina v. Katzenbach,1100 while holding that the state lacked standing under Massachusetts v. Mellon to attack the constitutionality of the Voting Rights Act of 19651101 under the Fifth Amendment’s Due Process Clause and under the Bill of Attainder Clause of Article I,1102 the Court decided on the merits the state’s claim that Congress had exceeded its powers under the Fifteenth Amendment.1103 Was the Court here sub silentio permitting it to assert its interest in the execution of its own laws, rather than those enacted by Congress, or its interest in having Congress enact only constitutional laws for application to its citizens, an assertion that is contrary to a number of supposedly venerated cases?1104 Either possibility would be significant in a number of respects.1105

Footnotes

1077
2 U.S. (2 Dall.) 419 (1793). [Back to text]
1078
See the discussion under the Eleventh Amendment. [Back to text]
1079
Massachusetts v. Mellon, 262 U.S. 447 (1923); Florida v. Mellon, 273 U.S. 12 (1927); New Jersey v. Sargent, 269 U.S. 328 (1926). [Back to text]
1080
Pennsylvania v. Quicksilver Co., 77 U.S. (10 Wall.) 553 (1871); California v. Southern Pacific Co., 157 U.S. 229 (1895); Minnesota v. Northern Securities Co., 184 U.S. 199 (1902). [Back to text]
1081
Wisconsin v. Pelican Ins. Co., 127 U.S. 265 (1888). [Back to text]
1082
19 U.S. (6 Wheat.) 264, 398–99 (1821). [Back to text]
1083
Pennsylvania v. Quicksilver Mining Co., 77 U.S. (10 Wall.) 553 (1871). [Back to text]
1084
California v. Southern Pacific Co., 157 U.S. 229 (1895); Minnesota v. Northern Securities Co., 184 U.S. 199 (1902). [Back to text]
1085
19 U.S. (6 Wheat.) at 398–99. [Back to text]
1086
127 U.S. 265 (1888). [Back to text]
1087
2 U.S. (2 Dall.) 419, 431–32 (1793). [Back to text]
1088
127 U.S. at 289–300. [Back to text]
1089
Pennsylvania v. Wheeling & B. Bridge Co., 54 U.S. (13 How.) 518, 559 (1852); Oklahoma ex rel. Johnson v. Cook, 304 U.S. 387 (1938); Georgia v. Evans, 316 U.S. 159 (1942). [Back to text]
1090
South Dakota v. North Carolina, 192 U.S. 286 (1904). [Back to text]
1091
New Hampshire v. Louisiana, 108 U.S. 76 (1883). [Back to text]
1092
Oklahoma ex rel. Johnson v. Cook, 304 U.S. 387 (1938). [Back to text]
1093
220 U.S. 277 (1911). [Back to text]
1094
324 U.S. 439 (1945). [Back to text]
1095
324 U.S. at 447–48 (quoting from Georgia v. Tennessee Copper Co., 206 U.S. 230, 237 (1907), in which the state was permitted to sue as parens patriae to enjoin the defendant from emitting noxious gases from its works in Tennessee which caused substantial damage in nearby areas of Georgia). In Alfred L. Snapp & Son v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607–08 (1982), the Court attempted to enunciate the standards by which to recognize permissible parens patriae assertions. See also Maryland v. Louisiana, 451 U.S. 725, 737–39 (1981). [Back to text]
1096
Georgia v. Pennsylvania R. Co., 324 U.S. 439, 468 (1945). Chief Justice Stone and Justices Roberts, Frankfurter, and Jackson dissented. [Back to text]
1097
In Hawaii v. Standard Oil Co., 405 U.S. 251 (1972), the Court, five-to-two, held that the state could not maintain an action for damages parens patriae under the Clayton Act and limited the previous case to instances in which injunctive relief is sought. Hawaii had brought its action in federal district court. The result in Hawaii was altered by Pub. L. 94–435, 90 Stat. 1383 (1976), 15 U.S.C. §§ 15cet seq., but the decision in Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977), reduced the significance of the law. [Back to text]
1098
Most of the cases, but see Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907), concern suits by one state against another. Missouri v. Illinois, 180 U.S. 208 (1901); New York v. New Jersey, 256 U.S. 296 (1921); North Dakota v. Minnesota, 263 U.S. 365 (1923). Although recognizing that original jurisdiction exists when a state sues a political subdivision of another state or a private party as parens patriae for its citizens and on its own proprietary interests to abate environmental pollution, the Court has held that, because of the technical complexities of the issues and the inconvenience of adjudicating them on its original docket, the cases should be brought in federal district court under federal question jurisdiction founded on the federal common law. Illinois v. City of Milwaukee, 406 U.S. 91 (1972); Washington v. General Motors Corp., 406 U.S. 109 (1972). The Court had earlier thought the cases must be brought in state court. Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493 (1971). [Back to text]
1099
262 U.S. 447, 486 (1923). [Back to text]
1100
383 U.S. 301 (1966). The state sued the Attorney General of the United States as a citizen of New Jersey, thus creating the requisite jurisdiction, and avoiding the problem that the States may not sue the United States without its consent. Minnesota v. Hitchcock, 185 U.S. 373 (1902); Oregon v. Hitchcock, 202 U.S. 60 (1906); Kansas v. United States, 204 U.S. 331 (1907). The expedient is, of course, the same device as is used to avoid the Eleventh Amendment prohibition against suing a state by suing its officers. Ex parte Young, 209 U.S. 123 (1908). [Back to text]
1101
79 Stat. 437 (1965), 42 U.S.C. §§ 1973et seq. [Back to text]
1102
The Court first held that neither of these provisions were restraints on what the Federal Government might do with regard to a state. It then added: “Nor does a State have standing as the parent of its citizens to invoke these constitutional provisions against the Federal Government, the ultimate parents patriae of every American citizen.” South Carolina v. Katzenbach, 383 U.S. 301, 324 (1966). [Back to text]
1103
The Court did not indicate on what basis South Carolina could raise the issue. At the beginning of its opinion, the Court noted that “[o]riginal jurisdiction is founded on the presence of a controversy between a State and a citizen of another State under Art. III, § 2, of the Constitution. See Georgia v. Pennsylvania R. Co., 324 U.S. 439.” 383 U.S. at 307. But surely this did not refer to that case’s parens patriae holding. [Back to text]
1104
See Massachusetts v. Mellon, 262 U.S. 447 (1923); Florida v. Mellon, 273 U.S. 12 (1927); Jones ex rel. Louisiana v. Bowles, 322 U.S. 707 (1944). See especially Georgia v. Stanton, 73 U.S. (6 Wall.) 50 (1867); Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1867). In Oregon v. Mitchell, 400 U.S. 112 (1970), four original actions were consolidated and decided. Two were actions by the United States against States, but the other two were suits by States against the Attorney General, as a citizen of New York, seeking to have the Voting Rights Act Amendments of 1970 voided as unconstitutional. South Carolina v. Katzenbach was uniformly relied on by all parties as decisive of the jurisdictional question, and in announcing the judgment of the Court Justice Black simply noted that no one raised jurisdictional or justiciability questions. Id. at 117 n.1. See also id. at 152 n.1 (Justice Harlan concurring in part and dissenting in part); South Carolina v. Baker, 485 U.S. 505 (1988); South Carolina v. Regan, 465 U.S. 367 (1984). [Back to text]
1105
Bickel, The Voting Rights Cases, 1966 SUP. CT. REV. 79, 80–93. [Back to text]