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Jurisdiction The geographic area over which authority extends; legal authority; the authority to hear and determine causes of action.

Jurisdiction generally describes any authority over a certain area or certain persons. In the law, jurisdiction sometimes refers to a particular geographic area containing a defined legal authority. For example, the federal government is a jurisdiction unto itself. Its power spans the entire United States. Each state is also a jurisdiction unto itself, with the power to pass its own laws. Smaller geographic areas, such as counties and cities, are separate jurisdictions to the extent that they have powers that are independent of the federal and state governments.

Jurisdiction also may refer to the origin of a court's authority. A court may be designated either as a court of general jurisdiction or as a court of special jurisdiction. A court of general jurisdiction is a trial court that is empowered to hear all cases that are not specifically reserved for courts of special jurisdiction. A court of special jurisdiction is empowered to hear only certain kinds of cases.

Courts of general jurisdiction are often called district courts or superior courts. In New York State, however, the court of general jurisdiction is called the Supreme Court of New York. In most jurisdictions, other trial courts of special jurisdiction exist apart from the courts of general jurisdiction; some examples are probate, tax, traffic, juvenile, and, in some cities, Drug Courts. At the federal level, the district courts are courts of general jurisdiction. Federal courts of special jurisdiction include the u.s. tax court and the Bankruptcy courts.

Jurisdiction can also be used to define the proper court in which to bring a particular case. In this context, a court has either original or appellate jurisdiction over a case. When the court has original jurisdiction, it is empowered to conduct a trial in the case. When the court has appellate jurisdiction, it may only review the trial court proceedings for error.

Generally, courts of general and special jurisdiction have original jurisdiction over most cases, and appeals courts and the jurisdiction's highest court have appellate jurisdiction, but this is not always the case. For example, under Article III, Section 2, Clause 2, of the U.S. Constitution, the U.S. Supreme Court is a court of appellate jurisdiction. However, under the same clause, that court has original jurisdiction in cases between states. Such cases usually concern disputes over boundaries and waterways.

Finally, jurisdiction refers to the inherent authority of a court to hear a case and to declare a judgment. When a plaintiff seeks to initiate a suit, he or she must determine where to file the complaint. The plaintiff must file suit in a court that has jurisdiction over the case. If the court does not have jurisdiction, the defendant may challenge the suit on that ground, and the suit may be dismissed, or its result may be overturned in a subsequent action by one of the parties in the case.

A plaintiff may file suit in federal court; however, state courts generally have concurrent jurisdiction. Concurrent jurisdiction means that both the state and federal court have jurisdiction over the matter.

If a claim can be filed in either state or federal court, and the plaintiff files the claim in state court, the defendant may remove the case to federal court (28 U.S.C.A. §§ 1441 et seq.). This is a tactical decision. Federal court proceedings are widely considered to be less susceptible to bias because the jury pool is drawn from the entire state, not just from the local community.

State courts have concurrent jurisdiction in most cases. Federal courts have exclusive jurisdiction in a limited number of cases, such as federal criminal, antitrust, bankruptcy, patent, Copyright, and some admiralty cases, as well as suits against the U.S. government.

Under federal and state laws and court rules, a court may exercise its inherent authority only if it has two types of jurisdiction: personal and subject matter. Personal Jurisdiction is the authority that a court has over the parties in the case. Subject Matter Jurisdiction is a court's authority over the particular claim or controversy.

State Civil Court Jurisdiction Personal Jurisdiction Personal jurisdiction is based on territorial concepts. That is, a court can gain personal jurisdiction over a party only if the party has a connection to the geographic area in which the court sits. Traditionally, this connection was satisfied only by the presence of the defendant in the state where the court sat. Since the late nineteenth century, notions of personal jurisdiction have expanded beyond territorial concepts, and courts may gain personal jurisdiction over defendants on a number of grounds. However, the territorial basis remains a reliable route to establishing personal jurisdiction.

A person who has a civil claim may file suit in a court that is located in his or her home state. If the defendant lives in the same state, the court will have no trouble gaining personal jurisdiction. The plaintiff must simply serve the defendant with a summons and a copy of the complaint that was filed with the court. Once this is accomplished, the court has personal jurisdiction over both the plaintiff and the defendant. If the defendant lives outside the state, the plaintiff may serve the defendant with the process papers when the defendant appears in the state.

If the defendant lives outside the state and does not plan to re-enter the state, the court may gain personal jurisdiction in other ways. Most states have a Long-Arm Statute. This type of statute allows a state court to gain personal jurisdiction over an out-of-state defendant who (1) transacts business within the state, (2) commits a tort within the state, (3) commits a tort outside the state that causes an injury within the state, or (4) owns, uses, or possesses real property within the state.

The emergence of the Internet as a way to communicate ideas and sell products has led to disputes over whether state long-arm statutes can be used to acquire personal jurisdiction over an out-of-state defendant. In Zippo Manufacturing v. Zippo Dot Com, 952 F. Supp.1119 (W.D.Pa.1997), a U.S. District Court proposed that a long-arm statute could be used only when the defendant has either actively marketed a product or the web site has a degree of interactivity that suggests the website seeks to do business. Conversely, a passive web site, where information is merely posted, would not subject a person to the reach of a long-arm statute.

In Pavlovich v. Superior Court, 59 Cal.4th 262, 58 P.3d 2, 127 Cal.Rptr.2d 329 (Cal. 2002), the California Supreme Court ruled that an out-of-state web site operator who had posted software that allowed users to decrypt and copy digital versatile discs (DVDs) containing motion pictures could not be sued in California state court. The operator, who lived in Texas, did not solicit business or have any commercial contact with anyone in California. The court relied on the Zippo sliding scale and concluded that Pavlovich fell into the passive category. The web site "merely posts information and has no interactive features. There is no evidence in the record suggesting that the site targeted California. Indeed, there is no evidence that any California resident ever visited, much less downloaded" the software. Even if he had known that the software would encourage Piracy, this substantive issue did not effect the threshold question of jurisdiction. Therefore, the lawsuit had to be dismissed for lack of personal jurisdiction.

The Minnesota Supreme Court took up the question of Internet jurisdiction in the context of a Defamation lawsuit in Griffis v. Luban, 646 N.W.2d 527 (Minn. 2002). Katherine Griffis, a resident of Alabama, filed a defamation lawsuit against Marianne Luban, a Minnesota resident, in Alabama state court. Griffis won a default judgment of $25,000 for statements that Luban had made on the Internet. Luban elected not to appear in the Alabama proceeding, and Griffis then filed her judgment in the Minnesota county where Luban resided. Luban then filed a lawsuit challenging the judgment for want of personal jurisdiction. The Minnesota Supreme Court concluded that the key jurisdiction question was whether Luban had targeted the state of Alabama when she made her defamatory statements. The Court found that while Luban knew that Griffis lived in Alabama, she had not "expressly aimed" her statements at the state of Alabama. Instead, she had published these statements to a specialized Internet newsgroup, one that only had Griffis as a member from Alabama. The court stated: "The fact that messages posted to the newsgroup could have been read in Alabama, just as they could have been read anywhere in the world, cannot suffice to establish Alabama as the focal point of the defendant's conduct." Therefore, Griffis had not established personal jurisdiction over Luban in Alabama, and the Minnesota state courts were not obliged to enforce the Alabama judgment.

If an out-of-state defendant caused an injury while driving inside the state, the court may gain personal jurisdiction over the defendant on the theory that the defendant consented to such jurisdiction by driving on the state's roads. Many states have statutes that create such Implied Consent to personal jurisdiction.

When the defendant is a corporation, it is always subject to personal jurisdiction in the courts of the state in which it is incorporated. If the corporation has sufficient contacts in other states, courts in those states may hold that the out-of-state corporation has consented to personal jurisdiction through its contacts with the state. For example, a corporation that solicits business in other states or maintains offices in other states may be subject to suit in those states, even if the corporation is not headquartered or incorporated in those states. A corporation's transaction of business in a foreign state is a sufficient contact to establish personal jurisdiction.

In actions concerning real property located within the state, state courts may use additional means to gain personal jurisdiction over out-of-state defendants. A state court may gain personal jurisdiction over all parties, regardless of their physical location, in a dispute over the title to real property. This type of personal jurisdiction is called in rem, or "against the thing." Personal jurisdiction over all parties interested in the real property is gained not through the parties but through the presence of the land in the court's jurisdiction.

If a court cannot gain personal jurisdiction over an out-of-state defendant, the plaintiff may be forced to sue the defendant in the state in which the defendant resides or in the state where the injury occurred. For example, a plaintiff who was injured outside his or her home state may have to file suit in the defendant's home state or in the state where the injury occurred if the defendant has no plans to enter the plaintiff's home state.

Subject Matter Jurisdiction Courts of general jurisdiction have subject matter jurisdiction over the majority of civil claims, including actions involving torts, contracts, unpaid debt, and Civil Rights violations. Courts of general jurisdiction do not have subject matter jurisdiction over claims or controversies that are reserved for courts of special jurisdiction. For example, in a state that has a probate court, all claims involving wills and estates must be brought in the probate court, not in a court of general jurisdiction.

In some cases, a claim must first be heard by a special administrative board before it can be heard by a court. For example, a Workers' Compensation claim in most states must be heard by a workers' compensation board before it can be heard in a court of general jurisdiction.

Another consideration in establishing subject matter jurisdiction is the amount in controversy. This is the total of all claims, counterclaims, and cross-claims in the suit. (A counterclaim is a claim by a defendant against a plaintiff; a cross-claim is a claim by a plaintiff against another plaintiff, or by a defendant against another defendant.) In most jurisdictions, if the amount in controversy does not exceed a certain limit, the case must be heard by a court other than a court of general jurisdiction. This court is usually called a Small Claims Court. The rules in such a court limit the procedures that are available to the parties so that the court can obtain a simple and speedy resolution to the dispute.

Federal Civil Court Jurisdiction Personal Jurisdiction To obtain personal jurisdiction over the parties, a federal court follows the procedural rules of the state in which it sits. For example, a federal court in Michigan follows the Michigan state court rules governing personal jurisdiction. The court examines the usual factors in establishing personal jurisdiction, such as the physical location of the parties, the reach of the state's long-arm statute, any consent to personal jurisdiction by the defendant, or the location of real property in a dispute over real property.

Subject Matter Jurisdiction In some cases a plaintiff may file suit in federal court. These cases are limited to (1) claims arising from the U.S. Constitution or federal statutes (federal question jurisdiction), (2) claims brought by or against the federal government, and (3) claims in which all opposing parties live in different states and the amount in controversy exceeds $75,000 (diversity jurisdiction). A federal court obtains subject matter jurisdiction over a case if the case meets one or more of these three requirements.

Claims arising from the U.S. Constitution or federal statutes Federal question jurisdiction is covered in 28 U.S.C.A. § 1331. This statute provides that federal district courts have "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." Some claims are expressly identified as federal in the Constitution. These claims include those involving Ambassadors and Consuls or public ministers, admiralty and maritime claims, and claims made by or against the federal government. Claims that are based on federal law also may be filed in federal court. An action against the federal government based on the Negligence of a federal employee, for example, is authorized by the Federal Tort Claims Act of 1946 (60 Stat. 842 [28 U.S.C.A. § 1346(b), 2674]).

The U.S. Supreme Court, in Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 535 U.S. 826, 122 S. Ct. 1889, 153 L. Ed. 2d 13 (2002), issued a landmark decision on "arising under" jurisdiction of the federal courts. The case involved patent law litigation between two competitors, with the plaintiff filing a Declaratory Judgment action in federal district court asking the court to declare that the plaintiff had not infringed the defendant's Trade Dress. This action was not based on a federal law but the defendant's counterclaim, in which it invoked federal patent law to allege patent infringement by the plaintiff, seemed to give the court "arising under" jurisdiction. The Court thought otherwise, ruling that the counterclaim did not confer federal jurisdiction and that the case must be dismissed. This decision limits the "arising under" jurisdiction of the federal courts and gives state courts the opportunity to hear copyright and patent actions (through a defendant's counterclaim) that have always been heard in the federal courts.

Some cases may combine federal and state issues. In such cases, no clear test exists to determine whether a party may file suit in or remove a suit to federal court. Generally, federal courts will decline jurisdiction if a claim is based predominantly on state law. For example, assume that a plaintiff is embroiled in a property dispute with a neighbor. The plaintiff files suit against the neighbor, alleging state-law claims of Nuisance, Trespass, breach ofcontract, and assault. A state official advises the plaintiff that the property belongs to the neighbor (the defendant). If the plaintiff sues the state official in the same suit, alleging a constitutional violation such as the uncompensated taking of property, a federal court may refuse jurisdiction because the case involves predominantly state law.

Federal courts may decline jurisdiction on other grounds if a state court has concurrent jurisdiction. When they do so, they are said to abstain, because they are refraining from exercising their jurisdiction. Federal courts tend to abstain from cases that require the interpretation of state law, if state courts can decide those cases. Federal courts abstain in order to avoid answering unnecessary constitutional questions, to avoid conflict with state courts, and to avoid making errors in determining the meaning of state laws.

Claims brought by or against the federal government Generally, the United States may sue in federal court if its claim is based on federal law. For example, if the federal government seeks to seize the property of a defendant in a drug case, it must base the action on the federal Forfeiture statute, not on the forfeiture statute of the state in which the property lies.

Generally, state and federal governments have Sovereign Immunity, which means that they may not be sued. However, state and federal governments may consent to suit. At the federal level, Congress has removed the government's Immunity for injuries resulting from the negligent and, in some cases, intentional conduct of federal agencies, federal officers, and other federal employees (60 Stat. 842 [28 U.S.C.A. § 1346(b), 2674, 2680]). Generally, the federal government is liable only for injuries resulting from the performance of official government duties.

If Congress has not waived federal immunity to certain suits, a person nevertheless may file suit against the agents, officers, or employees personally. For example, the U.S. Supreme Court has held that federal agents, officers, and employees who violate constitutional rights may be sued for damages in federal court (Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 [1971]).

Claims in which all opposing parties live in different states and the amount in controversy exceeds $75,000 Diversity cases provide federal courts with subject matter jurisdiction under 28 U.S.C.A. § 1332. A civil case qualifies as a federal diversity case if all opposing parties live in separate states and the amount in controversy exceeds $75,000. If the opposing parties live in the same state, the case may still qualify for federal subject matter jurisdiction if there is some remaining citizenship diversity between parties. For example, assume that a person is acting as a stakeholder by holding property for a third party. If ownership of the property is in dispute, the stakeholder may join the defendants in the suit to avoid liability to any of the parties. Such a case may be filed in federal court if a defendant lives in a different state, even if one of the defendants lives in the same state as the stakeholder or in the same state as the other defendants.

State and Federal Criminal Court Jurisdiction Personal Jurisdiction Personal jurisdiction in a criminal case is established when the defendant is accused of committing a crime in the geographic area in which the court sits. If a crime results in federal charges, the federal court that sits in the state where the offense was committed has personal jurisdiction over the defendant. In a conspiracy case, the defendants may face prosecution in any jurisdiction in which a conspiratorial act took place. This can include a number of states if at least one conspirator crossed state lines or if the conspiracy involved criminal acts in more than one state. Kidnapping is another crime that can establish personal jurisdiction in courts in more than one state, if it involves crossing state lines.

Subject Matter Jurisdiction In criminal cases, the question of jurisdiction is relatively simple. Subject matter jurisdiction is easily decided because criminal courts or the courts of general jurisdiction have automatic subject matter jurisdiction over criminal cases. In most states, minor crimes may be tried in one court, and more serious crimes in another. In Idaho, for example, criminal cases are tried in the district courts. However, misdemeanor cases may be assigned by the district court to a magistrate (Idaho Code § 1-2208 [1996]). (A magistrate is a judge who is authorized to hear minor civil cases and to decide criminal matters without a jury.)

The major question in criminal subject matter jurisdiction is whether the charges are pursuant to federal or state law. If the charges allege a violation of federal Criminal Law, the defendant will be tried in a federal court that is located in the state in which the offense was committed. If the charges allege a violation of state law, the defendant will face prosecution in a trial court that has jurisdiction over the area in which the offense was committed. If a crime violates both federal and state law, the defendant may be tried twice: once in state court, and once in federal court.

Venue Venue is similar to, but separate from, jurisdiction. The venue of a case is the physical location of the courthouse in which the case is tried. If more than one court has both subject matter and personal jurisdiction over a case, the court that first receives the case can send the case, upon request of one of the parties, to a court in another jurisdiction. Unlike jurisdiction, venue does not involve a determination of a court's inherent authority to hear a case.

jurisdiction n. the authority given by law to a court to try cases and rule on legal matters within a particular geographic area and/or over certain types of legal cases. It is vital to determine before a lawsuit is filed which court has jurisdiction. State courts have jurisdiction over matters within that state, and different levels of courts have jurisdiction over lawsuits involving different amounts of money. For example, Superior Courts (called District or County courts in several states) generally have sole control of lawsuits for larger sums of money, domestic relations (divorces), probate of estates of deceased persons, guardianships, conservatorships, and trials of felonies. In some states (like New York) probate and certain other matters are within the jurisdiction of so-called Surrogate Courts. Municipal courts (or other local courts) have jurisdiction over cases involving lesser amounts of money, misdemeanors (crimes not punishable by state prison), traffic matters, and preliminary hearings on felony charges to determine if there is sufficient evidence to warrant a trial by the superior court. Some states have police courts to handle misdemeanors. Jurisdiction in the courts of a particular state may be determined by the location of real property in a state (in rem jurisdiction), or whether the parties are located within the state (in personam jurisdiction). Thus, a probate of Marsha Blackwood's estate would be in Idaho where she lived and died, but jurisdiction over her title to real estate in Utah will be under the jurisdiction of the Utah courts. Federal courts have jurisdiction over lawsuits between citizens of different states, cases based on federal statutes such as fair labor standards and anti-trust violations, charges of federal crimes, appeals from bankruptcy proceedings, maritime cases, or legal actions involving federal constitutional questions. Sometimes regulatory agencies have the initial jurisdiction before any legal action may be filed in court. More than one court may have concurrent jurisdiction, such as both state and federal courts, and the lawyer filing the lawsuit may have to make a tactical decision as to which jurisdiction is more favorable or useful to his/her cause, including time to get to trial, the potential pool of jurors, or other considerations. Appellate jurisdiction is given by statute to appeals courts to hear appeals about the judgment of the lower court that tried a case, and to order reversal or other correction if error is found. State appeals are under the jurisdiction of the state appellate courts, while appeals from federal district courts are within the jurisdiction of the courts of appeal and eventually the Supreme Court. Jurisdiction is not be confused with "venue," which means the best place to try a case. Thus, any state court may have jurisdiction over a matter, but the "venue" is in a particular county. (See: superior court, municipal court, police court, district court, supreme court, venue)

Sovereign Immunity The legal protection that prevents a sovereign state or person from being sued without consent.

Sovereign immunity is a judicial doctrine that prevents the government or its political subdivisions, departments, and agencies from being sued without its consent. The doctrine stems from the ancient English principle that the monarch can do no wrong.Suits against the United States

In early American history, the courts supported the traditional view that the United States could not be sued without congressional authorization (chisholm v. georgia, 2 U.S. [2 Dall.] 419, 478, 1 L. Ed. 440 [1793]; Cohens v. Virginia, 19 U.S. [6 Wheat.] 264, 412, 5 L. Ed. 257 [1821]). This Immunity applied to suits filed by states as well as individuals (Kansas v. United States, 204 U.S. 331, 27 S. Ct. 388, 51 L. Ed. 510 [1906]). Thus, for many years, those who had contract and tort claims against the government had no legal recourse except through the difficult, inconvenient, and often tardy means of convincing Congress to pass a special bill awarding compensation to the injured party on a case by case basis.

The federal government first began to waive its sovereign immunity in areas of law other than torts. In 1855 Congress established the U.S. Court of Claims, a special court created to hear cases against the United States involving contracts based upon the Constitution, federal statutes, and federal regulations. In 1887 Congress passed the Tucker Act (28 U.S.C.A. §§ 1346 (a) (2), 1491) to authorize federal district courts to hear contractual claims not exceeding $10,000 against the United States. Other Special Courts were later created for particular types of nontort claims against the federal government. The U.S. Board of General Appraisers was created in 1890 and was replaced in 1926 by the U.S. Customs Court, and the U.S. Court of Customs Appeals was created in 1909 and then replaced in 1926 by the U.S. Court of Customs and Patent Appeals. These courts handled complaints about duties levied on imports. The Board of Tax Appeals, created in 1924 to handle internal revenue complaints, was replaced in 1942 by the Tax Court of the United States.

Not until 1946, however, did Congress address the issue of liability for torts committed by the government's agencies, officers, or employees. Until 1946 civil servants could be individually liable for torts, but they were protected by sovereign immunity from liability for tortious acts committed while carrying out their official duties. But the courts were not always consistent in making that distinction.

Finally, in 1946 Congress passed the Tort Claims Act (28 U.S.C.A. §§ 1346(b), 2671–2678), which authorized U.S. district courts to hold the United States liable for torts committed by its agencies, officers, and employees just as the courts would hold individual defendants liable under similar circumstances. This general waiver of immunity had a number of exceptions, however, including the torts of Battery, False Imprisonment, false arrest, Malicious Prosecution, Abuse of Process, libel, slander, Misrepresentation, deceit, interference with contractual rights, tort in the fiscal operations of the Treasury, tort in the regulation of the monetary system, and tort in combatant activities of the armed forces in wartime.

By 1953 the U.S. Supreme Court had drawn distinctions under the Tort Claims Act between tortious acts committed by the government at the planning or policy-making stage and those committed at the operational level. In Dalehite v. United States, 346 U.S. 15, 73 S. Ct. 956, 97 L. Ed. 1427 (1953), the Supreme Court held that the Tort Claims Act did not waive sovereign immunity as to tortious acts committed at the planning stage; immunity applied only to torts committed at the operational stage.

Congress also waived sovereign immunity in cases seeking injunctive or other nonmonetary relief against the United States in a 1976 amendment to the Administrative Procedure Act (5 U.S.C.A. §§ 702–703).Suits against the States

The doctrine of sovereign immunity applies to state governments within their own states, but it was not initially clear whether states had immunity as to suits involving other states or citizens of other states. In the 1793 case of Chisholm v. Georgia, the U.S. Supreme Court permitted a North Carolina citizen to sue Georgia for property that Georgia had seized during the American Revolution. The states' strong disapproval of the Court's decision in Chisholm led to the prompt adoption of the Eleventh Amendment to the U.S. Constitution in 1795. The Eleventh Amendment specifically grants immunity to the states as to lawsuits by citizens of other states, foreign countries, or citizens of foreign countries in the federal courts. This limitation was judicially extended to include suits by a state's own citizens in Hans v. Louisiana, 134 U.S. 1, 10 S. Ct. 504, 33 L. Ed. 842 (1890).

The U.S. Supreme Court still has jurisdiction to hear suits by one state against another. In addition, the courts have construed the Eleventh Amendment as permitting appellate proceedings in cases originally instituted by a state if the defendant asserted rights under the U.S. Constitution, statutes, or treaties (Cohens v. Virginia), or in cases against state officials alleged to have violated such rights (Osborn v. Bank of the United States, 22 U.S. [9 Wheat.] 738, 6 L. Ed. 204 [1824]). The latter category has resulted in extensive litigation in federal courts against state and local officers alleged to have violated the civil rights act of 1871 (42 U.S.C.A. Section 1983). Claims brought under the act are not subject to sovereign immunity.

However, the Fourteenth Amendment does allow Congress to abrogate state sovereign immunity. Section 5 grants Congress the enforcement power to advance the goals of the amendment, which include the guarantees of due process and Equal Protection of the laws. Congress has used this power to apply modern Civil Rights laws as well as patent and trademark laws to state governments. This power was not questioned until the mid-1990s, when the Supreme Court began to issue decisions that strike down the application of federal statutes to the state governments. In Seminole Tribe v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), the Court established a two-part test for determining whether Congress abrogated the states' immunity when enacting a particular statute. It ruled that absent a state's waiver, states retain their sovereign immunity unless (1) Congress unequivocally expressed its intent to abrogate the immunity, and (2) Congress acted pursuant to a valid exercise of its enforcement power under Section 5 of the Fourteenth Amendment. The Court held that, in order to satisfy the first prong of the test, Congress must make its intent to abrogate the States' immunity unmistakably clear.

The Court proceeded to apply this two-part test in a series of cases. In Florida Prepaid Post-secondary Education Expense Board v. College Savings Bank, 527 U.S. 627, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999), the Court ruled that the state of Florida could invoke its sovereign immunity to block federal lawsuits against it by a bank charging it with patent and trademark law violations. The Court found that Congress had clearly intended to abrogate state sovereign immunity but had failed to satisfy the second part of the test. The Court stated that "Congress must identify conduct transgressing the Fourteenth Amendment's substantive provisions, and must tailor its legislative scheme to remedying or preventing such conduct." Because Congress had failed to identify a pattern of patent infringement by the states or a pattern of constitutional violations, the Eleventh Amendment barred the laws' application to the states.

The Supreme Court, in Alden v. Maine, 527 U.S 706, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999), ruled that a group of state employees could not sue their state employer using the provisions of the Fair Labor Standards Act (29 U.S.C.A. 201 et seq.). In Kimel v. Florida Board of Regents, 528 U.S. 62, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000), the Court found that the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C.A. §§621-634, did not apply to state governments. The ADEA could not be applied because under the second part of the Seminole Tribe test, there must be a "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Using this standard, the Court found that the ADEA was not "appropriate legislation." The Court noted that age is not a Suspect Classification under the Equal Protection Clause of the Fourteenth Amendment. Therefore, states may "discriminate on the basis of age without offending the Fourteenth Amendment if the age classification is rationally related to a legitimate state interest." The ADEA prohibited "substantially more state employment decisions and practices than would likely be held unconstitutional" under the equal protection, rational basis standard.

The Supreme Court also invalidated the application of part of the Americans with Disabilities Act (ADA), Pub. L. 101-336 (1990), to state government. In University of Alabama v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001), the Court struck down ADA applicability to damage lawsuits involving alleged disability employment discrimination by state governments. Congress could only be authorized to include the states within ADA reach if it identified a history and pattern of unconstitutional employment discrimination against disabled persons. However, the Court concluded that the legislative record "simply fails to show that Congress did in fact identify a pattern of irrational state discrimination in employment against the disabled." The Court asserted that Congress had published only a handful of incidents to support this conclusion. Absent a compelling historical pattern of discrimination, such as the racial discrimination against African Americans that justified the Voting Rights Act of 1965, the Court saw no merit in stripping states of their immunity from citizen lawsuits for money.

The Court continued its promotion of states' rights in Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743, 122 S.Ct. 1864, 152 L.Ed.2d 962 (2002). In this case the Court demonstrated its continuing commitment to Federalism by extending a state's sovereign immunity to federal administrative law proceedings. Though the case involved a fairly obscure federal commission, the Court's precedent could be extended to the many federal agencies and commissions that oversee the environmental and natural resources.

The Supreme Court did restrict Eleventh Amendment immunity, on procedural grounds, in Lapides v. Board of Regents of the University System of Georgia, 535 U.S. 613, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002). In this action the Court ruled that states could not claim Eleventh Amendment immunity when they voluntarily remove a case to federal court. By doing so the Court concluded that the state had voluntarily waived its immunity, thereby giving a plaintiff the chance to argue the merits of the case. The decision was likely to encourage states to litigate actions in state court if state law waives sovereign immunity.

In state court actions, immunity continues to be allowed in the absence of consent to be sued. Depending on the type of case, however, different levels of immunity may apply. Absolute immunity is generally allowed for judges and Quasi-Judicial officers, such as prosecuting attorneys and Parole board members. For executive officers, immunity is a function of the amount of discretion they possess to make decisions and the circumstances in which they act (Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 [1974]). But immunity has been denied to officials acting in excess of statutory authority (Greene v. Louisville and Interurban Railroad Co., 244 U.S. 499, 37 S. Ct. 673, 61 L. Ed. 1280 [1917]) or under an unconstitutional statute (Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 [1908]). Immunity has been allowed when state property is involved or the state is an essential party for granting relief (Cunningham v. Macon and Brunswick Railroad Co., 109 U.S. 446, 3 S. Ct. 292, 27 L. Ed. 992 [1883]).

Until a Supreme Court decision in 1979, it was generally assumed, and decided by a court in at least one case (Paulus v. South Dakota, 52 N.D. 84, 201 N.W. 867 [1924]), that a state's immunity must be recognized not only in its own courts but also in the courts of other states throughout the country. The U.S. Supreme Court addressed the issue in Nevada v. Hall, 440 U.S. 410, 99 S. Ct. 1182, 59 L. Ed. 2d 416 (1979). That case involved an employee of the University of Nevada who was driving in California on official business and injured a California resident in an automobile accident. The Supreme Court held that the common-law doctrine of sovereign immunity had not passed to the states when the United States was created; therefore, it is up to the states to decide whether to recognize and respect the immunity of other states. Thus, the Supreme Court held in Hall that California could properly refuse to respect Nevada's sovereign immunity in the California courts.

Like the federal government, the states often relied on private laws to provide relief to specific individuals who would otherwise be unable to sue due to sovereign immunity doctrines. Recognizing that this arrangement was an inefficient and nonuniform way to provide relief from immunity doctrines, the states began to waive all or parts of their immunity from lawsuits. Many states created administrative bodies with limited capacity to settle claims against the state. Several states authorized suits against municipal corporations, counties, and school districts whose officers or employees injured individuals while performing proprietary, but not government, services. The distinction between proprietary and government services proved impossible to apply uniformly. Under modern law government services are widely considered to include police services, fire department services, and public education. Depending on the state involved, streets, sidewalks, bridges, parks, recreational facilities, electricity suppliers, gas suppliers, and airport functions can be considered either government or proprietary services.

As of 2003, most states had waived their immunity in various degrees at both the state and local government levels. Generally, state supreme courts first abolished immunity via judicial decisions; later, legislative measures were enacted at the state and local level to accept liability for torts committed by civil servants in the performance of government functions. The law varied by state and locality, however.Suits against Foreign Governments

Until the twentieth century, mutual respect for the independence, legal equality, and dignity of all nations was thought to entitle each nation to a broad immunity from the judicial process of other states. This immunity was extended to heads of state, in both their personal and official capacities, and to foreign property. In the 1812 case of The Schooner Exchange v. M'Faddon, 11 U.S. (7 Cranch.) 116, 3 L. Ed. 287, a ship privately owned by a U.S. citizen was seized in French waters by Napoleon's government and converted into a French warship. When the ship entered the port of Philadelphia, the original owner sought to regain title, but the Supreme Court respected the confiscation of the ship because it occurred in accordance with French law in French waters.

With the emergence of socialist and Communist countries after World War I, the traditional rules of sovereignty placed the private companies of free enterprise nations at a competitive disadvantage compared to state-owned companies from socialist and Communist countries, which would plead immunity from lawsuits. European and U.S. businesses that engaged in transactions with such companies began to insist that all contracts waive the sovereign immunity of the state companies. This situation led courts to reconsider the broad immunity and adopt instead a doctrine of restrictive immunity that excluded commercial activity and property.

Western European countries began waiving immunity for state commercial enterprises through bilateral or multilateral treaties. In 1952 the U.S. State Department decided that, in considering future requests for immunity, it would follow the shift from absolute immunity to restrictive immunity. In 1976 Congress passed the Foreign Sovereign Immunities Act (28 U.S.C.A. § 1601 et seq.) to provide foreign nations with immunity from the jurisdiction of U.S. federal and state courts in certain circumstances. This act, which strives to conform to International Law, prohibits sovereign immunity with regard to commercial activities of foreign states or their agencies or with regard to property taken by a foreign sovereign in violation of international law. Customary international law has continued to move toward a restrictive doctrine.



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