Justices Reject Immunity Below State Level
By Linda Greenhouse
WASHINGTON, April 25 — The Supreme Court ruled unanimously on Tuesday that cities, counties and other levels of government below that of states themselves are not protected by the general immunity from suits that states enjoy in federal court.
Ruling in a case from Chatham County, Ga., which includes Savannah, the court overturned a decision by the federal appeals court in Atlanta that had shielded the county from an insurance liability suit from damage caused to a yacht by a faulty drawbridge.
The appeals court acknowledged that the 11th Amendment, which the Supreme Court has interpreted as the precise source of constitutional immunity for the states, did not apply to smaller units of government under the court's precedents. But the appeals court found that "common law has carved out a 'residual immunity,' which would protect a political subdivision such as Chatham County from suit."
But there is no such "residual immunity," Justice Clarence Thomas said in his opinion for the Supreme Court. Justice Thomas added, with reference to the intentions of the Constitution's framers, that the concept of a free-floating immunity for other levels of government "would serve to extend sovereign immunity beyond its preratification scope."
A series of Supreme Court decisions in the 1990's invigorated the concept of state immunity and raised the question that the court answered in this case. The majority's position in the earlier cases, most of which were decided by 5-to-4 votes, was that because the states were sovereign before the Constitution was ratified, they retained immunity from suits in federal court as an aspect of their retained sovereignty, given expression by but not limited to the 11th Amendment.
So the question naturally arose of whether this free-floating "residual" immunity applied below the state level to units of government. Under long-standing precedent of the lower court in this case, the United States Court of Appeals for the 11th Circuit, it did, at least to counties and municipalities that exercise power "delegated from the state."
Given that all political subdivisions exercise power delegated by the state, the justices found this analysis unpersuasive. Only those subdivisions acting as "an arm of the state" can claim the state's immunity, Justice Thomas said.
The phrase "arm of the state" is a legal term of art that the court has applied very sparingly in the 11th Amendment context to agencies that are subject to a state's complete control and that have no independent powers or separate legal identity. Port authorities, regional transportation systems, land-use planning agencies and the like that make claims to the special protections given to arms of the state are regularly rejected.
In this case, Northern Insurance Company of New York v. Chatham County, No. 04-1618, the county conceded that it was not an arm of the state of Georgia, so Justice Thomas did not discuss the question further in his six-page opinion.
The court was not unanimous in a second case from the 11th Circuit decided on Tuesday, a criminal case in which the question was whether a federal judge has the discretion to rescue the state after the prosecution fails to recognize and object to an error by the other side.
In this case, Day v. McDonough, No. 04-1324, Florida prosecutors miscounted and failed to realize that a convicted murderer's petition for habeas corpus had been filed three weeks after the expiration of the deadline set by federal law for filing such petitions — one year after the time for filing direct appeals has expired. Under the law, petitions filed too late must be dismissed.
Although the state did not request dismissal on this basis, and in fact described the petition as "timely" in its own legal papers, a federal magistrate judge noticed the error and asked lawyers for the inmate, Patrick Day, to explain the delay.
The explanation was that they believed the 90 days available after a final judgment for filing a Supreme Court appeal were added to the one-year deadline, a position the 11th Circuit has rejected and that the Supreme Court agreed last month to review in a case from Florida.
The magistrate judge accordingly rejected the explanation and recommended that the inmate's petition be dismissed. The Federal District Court agreed, as did the 11th Circuit, which ruled that a judge had the authority to dismiss a petition as too late even if the state never raised the point.
By a vote of 6 to 3, with a majority opinion by Justice Ruth Bader Ginsburg, the Supreme Court agreed. The dissenters were Justices Antonin Scalia, Clarence Thomas and Stephen G. Breyer.
"We stress that a district court is not required to double-check the state's math," Justice Ginsburg said, adding: "Nevertheless, if a judge does detect a clear computation error, no rule, statute or constitutional provision commands the judge to suppress that knowledge."
The unusual alignment of votes in this case was a reminder that the justices' ideological alliances do not reliably predict outcomes, especially in cases of statutory interpretation. In this instance, the court was interpreting the Antiterrorism and Effective Death Penalty Act of 1996, which was intended to curb the flow of federal habeas corpus petitions from state inmates and was the first federal law to place a time limit on such petitions.
In Justice Ginsburg's analysis, the argument that tipped the case in the state's favor was the discretion that the court's precedents had given federal judges to consider other defenses in habeas corpus cases that a state had failed to raise. One example she cited was an inmate's failure to pursue a complaint through the state courts before turning to federal court. "It would make scant sense" to treat the time-limit issue differently, she said.
But Justice Scalia's dissenting opinion, joined by Justices Thomas and Breyer, said the majority had failed to take into account the Federal Rules of Civil Procedure, which incorporate the traditional rule that a defense that a party to a case fails to raise in a lower court is forfeited.
Justice John Paul Stevens, while agreeing with Justice Ginsburg's analysis, did not sign her opinion because, he said, the court should have withheld its judgment while considering the new Florida case.
That case, Lawrence v. Florida, No. 05-8820, to be argued in the court's next term, might lead to the conclusion that Mr. Day came within the proper time limit after all. Justice Breyer agreed with Justice Stevens on this point.