Argument of Speaker
Mr. Speaker: The opinion of the court in No. 01-298, Lapides versus the Board of Regents of the University System of Georgia will be announced by Justice Breyer.
Argument of Justice Breyer
Mr. Breyer: The Eleventh Amendment as it has been interpreted provides a State with Immunity against suits in the Federal Court brought against the State by a citizen of that State or of another State.
But that state can waive that immunity, it can consent to sue.
There is a long line of cases that indicate that the State does consented, does waived that immunity when it appears in the Federal Court and that appearance is voluntary.
This case focuses upon a citizen who initially sued a State in the State Court on a State Law claim, in respect to which the State had waived immunity from suit in the State Court but it had not waived immunity from suit in the Federal Court.
Subsequently, the State defendant which was the State, it was a defendant in the State Court, had found -- and I am not going to go how it found the special reasons which are really irrelevant -- found that it could remove the case voluntarily into the Federal Court, and it did so.
The question before us is has the state in voluntarily removing the case consented to the suit in the Federal Court, thereby waiving its Eleventh Amendment immunity.
The Court of Appeals concluded that it did not waive the immunity but we conclude to the contrary that it did waive the immunity.
Our basic reasons are: first, taht we create an anomaly where the State permitted to invoke Federal Court jurisdiction to removal while denying that the federal judicial power can extend to the case by asserting sovereign immunity.
Moreover that isn't just theoretical but all kinds of unfair results could take place if that were permitted.
Then we considered the basic reasons of the Court of Appeals held to the contrary.
It found that State Law did not permit the State Attorney General to waive the immunity by removal or otherwise, but in our view, the matter is one of Federal Law not State Law, and we conclude that Federal Law does find waiver in these circumstances.
We note that it is possible to read an earlier case in this court Ford Motor Company versus Department of the Treasury of Indiana as suggesting that the lower court was right but we overruled that case in so far as it does so.
We reverse the Court of Appeals.
The decision is unanimous.
