Courthouse Steps Oral Argument: Franchise Tax Board of California v. Hyatt: Reviving Sister-State Sovereign Immunity

A Teleforum Call Sponsored by the Federalism & Separation of Powers Practice Group

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After Gilbert Hyatt, the petitioner, moved to Nevada he was investigated by the Franchise Tax Board of California for failing to pay California personal income taxes. Due to California’s actions in doing so, Hyatt sued California in Nevada’s courts for negligent misrepresentation, intentional infliction of emotional distress, fraud, invasion of privacy, abuse of process, and breach of a confidential relationship for which the jury found for Hyatt on all claims. California appealed the decision seeking to get the judgment vacated on sovereign immunity grounds. 

This teleform will discuss the Supreme Court oral arguments in Franchise Tax Board of California v. Hyatt. This case considers if a citizen can sue a state in the court of a different state. This raises a variety of substantial questions concerning federalism and state sovereign immunity. In Nevada v. Hall (1979), the Supreme Court rejected that sister-state immunity was implicit in the Constitution. Today in Hyatt, 44 states, among others, are asking the Court to overturn that decision and protect states from suit in other state’s courts. Professor Stephen Sachs will discuss how the Court approached this case at oral arguments and its implications on the future of state sovereign immunity.

Featuring:

Prof. Stephen E. Sachs, Professor of Law, Duke Law

 

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Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Federalism & Separation of Powers Practice Group, was recorded on Monday, January 14, 2019 during a live teleforum conference call held exclusively for Federalist Society members.     

 

Wesley Hodges:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is a Courthouse Steps Oral Argument Discussion on Franchise Tax Board of California v. Hyatt: Reviving Sister-State Sovereign Immunity. My name is Wesley Hodges, and I'm the Associate Director of Practice Groups at The Federalist Society.

 

As always, please note that all expressions of opinion are those of the expert on today's call.

 

Today we are very fortunate to have with us Professor Stephen E. Sachs, who is a Professor of Law at Duke Law. After our speaker gives his remarks today, we will move to an audience Q&A, so please keep in mind what questions you have for case, for its oral argument, or for our speaker today. Thank you very much for sharing with us today. Professor Sachs, the floor is yours.

 

Prof. Stephen E. Sachs:  Thank you very much and thanks to all of you for listening in. Franchise Tax Board v. Hyatt is one of the most interesting and potentially important cases on sovereign immunity in some decades. It addresses the question whether states have a constitutional right to claim sovereign immunity in the courts of other states. Forty years ago in 1979 in Nevada v. Hall, the Supreme Court said that they do not have such a right, that they can be sued in the courts of other states and that the federal courts would not intervene. They have sovereign immunity in federal court but not in state courts. Since then, there's been a sea change in various areas of the doctrine, cases like Seminole Tribe, cases like Alden v. Maine, emphasizing the importance of sovereign immunity and the dignity of states. And the question is what happens now? What happens to Nevada v. Hall?

 

It's an interesting case because it really goes to the foundations of sovereign immunity doctrine: what kind of law sovereign immunity is, whether it’s a rule of international law, rule of constitutional law, if so, of what kind, and so on. It's also potentially important because while there are a very small number of cases nowadays in which states are sued in other states' courts, the number is growing, and especially if the Supreme Court reaffirms the ability of state courts to subject other states' jurisdiction, one can expect that it will grow further.

 

During the oral argument, Seth Waxman made a reference to events just this week in which casino operator, Steve Wynn, in Nevada had filed suit and obtained an injunction from a Nevada state judge to prevent Massachusetts Gaming Commission investigators from releasing to the Gaming Commission a report that they had compiled which allegedly contained attorney-client privilege information. So it's likely that we will see increasing numbers of challenges to state actions in the courts of other states if the Court gives the practice an unqualified thumbs up.

 

I think that, based on the briefs in oral arguments, based on other factors of the Court that I'll be happy to discuss later, I think there's a greater than 50 percent chance that the Court will cut back meaningfully on states' ability to subject other states to suit, but we'll have to see exactly how and why. I'll be speaking for about 20 minutes or so, and I'll look forward to your questions after that.

 

The case [Franchise Tax Board] v. Hyatt is a threepeater, it's been to the Court now for a third time. It arises from a tax investigation of the inventor, Gilbert Hyatt, who had moved from California to Nevada sometime in 1991 or 1992. It's not clear, at least in the eyes of the parties, exactly when. This matters because when he moved determines how much he has to pay in California taxes as a California resident on his income as opposed to Nevada. And he alleges that in the course of the tax proceeding—which indeed is still ongoing. They're still fighting over the extent his tax liabilities to California in 1991 in a separate proceeding, not the case here—in the course of that investigation, he argues investigators from California came into Nevada and committed various in-state torts against him in Nevada, various kinds of invasions of privacy, like going through trash or peering in windows, disclosing private information, and so on.

 

He sued the California Franchise Tax Board, the State IRS equivalent, in Nevada court and obtained, originally, a judgment of almost half a billion dollars. That was knocked down substantially and most recently in its last Supreme Court appearance in what's now called "Hyatt II" where the Court held that it could not exceed Nevada's damage cap for judgments that it applied to its own state agencies and instrumentalities. But the Court at that time considered whether to overrule Nevada v. Hall, but after Justice Scalia's death, it split 4-4, and just affirmed the Nevada state judgment below by an equally divided court on the question of whether to overrule Nevada v. Hall.

 

So just starting off, this suggestion would be if we think that Justice Gorsuch would probably take the views that Justice Scalia would've had and that Justice Kavanaugh would potentially take the views that Justice Kennedy might have had, one would think that there's probably five votes to overturn Nevada v. Hall, but we'll have to see based on the actual course of the oral arguments.

 

The arguments that happened this past Wednesday largely recapitulated the briefs. The argument by the petitioners, by the Franchise Tax Board, which claims immunity, is that states enjoyed an immunity in other states' courts before the Constitution. There's an extensive 1781 Pennsylvania case, Nathan v. Virginia and another case involving South Carolina, and it was recognized that states had an immunity from jurisdiction of other states. And the question is what happened under the Constitution to effect that immunity? Did the Constitution lay down an implicit rule that states would henceforth be immune? Or did it simply leave it alone?

 

According to the petitioners, the fact that the Constitution did not disturb that immunity means that it's now preserved. That every state can continue to claim constitutional immunity in other states' courts. That's because, according to the petitioners, the Constitution forced all of the states to give up all of the tools that independent nations had previously enjoyed in defending themselves against jurisdiction by other nations. So among nations, a number of Founding Era sources suggest the rule of immunity was one of comity and wise policy. It was nations playing well with each other. But if one nation decided to invade that immunity and to exercise jurisdiction, well, the other side could just declare war. They could put a tariff on goods or they could, in various other ways without some superior tribunal that heard cases from both, they could exercise their own means of retaliation. In agreeing to the Constitution, the states were no longer legal strangers to one another. They gave up those various tools of retaliation, and therefore they now enjoy the immunity secured by the Constitution, so argues the petitioners.

 

The difficulty with the petitioner's argument is, of course, that there is nothing in the Constitution that says precisely that. The Constitution doesn't say very much at all about states' obligations to and for other states. It has a few clauses on the subject, like the Privileges and Immunities Clause, the Full Faith and Credit Clause, the Fugitive Clause, and so one, much of them contained in Article IV. But it says nothing about respecting the immunity of other states with respect to judgments.

 

However, the petitioners argue the trend of jurisprudence, especially since Nevada v. Hall, has been to recognize the importance of state sovereign immunity, both for the states' dignity and for the ability of a state to self-govern. If one state can tell another's investigators what to do, or whether to turn over reports to the Gaming Commission and so on, they can inject themselves into the governance of another state. And by analogy to the kinds of immunity doctrines discussed in McCulloch v. Maryland, where Chief Justice Marshall said that the power to tax a federal instrumentality was forbidden in the states because the power to tax was the power to destroy, the power to sit in judgment and decide whether another state could undertake a particular act means that you really are governing that defendant state from afar, and that that is inconsistent with the view of equal state sovereignty that is expressed in the modern sovereign immunity case law.

 

Accordingly, the petitioners argue that Nevada v. Hall's entitled to very little stare decisis protection, and that it is actively harmful. People are using these techniques in order to govern other states from afar.

 

The respondent's positon, that of Gilbert Hyatt, is first of all, that this is covered by law of the case; that it was decided, albeit by an equally divided Court, in "Hyatt II," and that there is no reason for the Court to revisit it as a result. They have another argument that didn't come up very much at oral argument, that the petitioner had waived all of the immunity questions by not raising them in "Hyatt I," something like 15 years ago now. But their main submission is to defend Nevada v. Hall on the basis of stare decisis, to argue that this case heard all of the arguments that are now being put forward back then, that it rejected them, that there was no particular reason to disregard the settlement that had already reached, and that it hasn't created very many problems that there still are very, very few cases filed against states in other states' courts.

 

On the merits, the respondents emphasized the difference between the sovereign immunity doctrines that the Court has recognized thus far, vis-à-vis the federal courts and those of the states. The Constitution makes a clear distinction with respect to the 10th Amendment and elsewhere that the powers of the states are, as was put in The Federalist Papers, "numerous" and those of the federal government are defined. The 10th Amendment says that any powers not conferred on the federal government nor prohibited to the states are reserved to the states and to the people thereof, and those might include the power to seek justice for one of their own citizens who is damaged by an in-state tort. If Hyatt is living in Nevada and has an agent of California come into his state and injure him there, he might want a remedy. And if California does not provide it, why shouldn't Nevada be able to do so? If it has not signed away that power in the Constitution, if nothing in the Constitution says it can't, why not allow it to proceed and to hear a case seeking a remedy?

 

At oral argument, the Justices largely lined up on predictable grounds with the generally thought to be more liberal Justices more skeptical of the claim of immunity, and the generally thought to be more conservatives Justices generally more skeptical of the claim of states' ability to invade that immunity. But it wasn't entirely that way, and there's still some very large question marks. Justice Thomas, as is his custom, asked no questions at argument. Justice Gorsuch also asked no questions at argument, and he had not been on the Court at the time of "Hyatt II," so we don’t know which way he likely voted. Justices Sotomayor, Kagan, and Breyer focused on the absence of any constitutional guarantee of immunity to various states in state courts and were joined in that by Justices Alito and Kavanaugh who wondered why is this not in the text. What provision is there that would allow us to assume that such an immunity is preserved?

 

Seth Waxman, who is counsel for the Franchise Tax Board, argued that, in fact, the Constitution's text does provide some indication by taking away the various tools of retaliation, but that largely this is one of the standard atextual doctrines like federal sovereign immunity, like the Dormant Commerce Clause, like intergovernmental tax immunity, and sort of a rogue's gallery of other doctrines that the Court has, over time, articulated without necessarily having very much basis in the text. At root, his argument was that one state cannot sit in judgment of another, cannot regulate another in much the way that the federal government cannot coerce states as in New York v. United States or Printz. The powers of each sovereign are separate and they cannot force others to do various things by cases in their courts.

 

Other questions that came up during the petitioner's argument involved alternative ways of solving this problem. Justice Sotomayor suggested why, if there are so many states that are outraged by this—indeed, 44 states had joined an amicus brief—why were they not trying to amend the Constitution? Why not form an interstate compact, or do various other things that the states are still within their power to do if they actually see this as a real danger? Waxman explained why the constitutional amendment route was somewhat fraught, and indeed even a compact assumes that the rule already is that they have to form a compact. Indeed, they could always form a compact to enable lawsuits rather than restrict them.

 

Erwin Chemerinsky was counsel for Hyatt, and focused in his argument both on stare decisis and also on the 10th Amendment argument. There was no reason to overturn a decision that reflected the powers that had been reserved to the states. The Justices, primarily the conservative Justices but indeed on both sides, focused on the question of what really does protect the state, given that it's perfectly plausible that having a Nevada court sit in judgment of California could work all kinds of mischief. Is comity actually an effect protection? Can we just depend on California and Nevada to use their better judgment and not try and exercise power over each other? Indeed, Justice Alito raised the question whether California was acting more like the "Republic of California" as some people might think it sees itself as, but exercising very great influence over a somewhat smaller neighbor and might be able to, if there is no protection from courts of various states, might be able to require other states to give up certain immunities even while insisting on comity on its own.

 

There was some discussion of the international law cases at the time of the Founding on whether states did have this immunity. There are two cases, the Schooner Exchange v. McFaddon decided by Justice Marshall and the Santissima Trinidad decided by Justice Story that suggests, at least in the international context, that this immunity was a question of international law and international comity. And Chemerinsky also argued that a later case, Georgia v. Chattanooga, showed that the owner of property in a different state could be subject to a quiet title suit without regard to sovereign immunity, and distinguished the existing cases, such as Alden v. Maine, such as Seminole Tribe, as focusing on the limits on the federal government's power, which the 10th Amendment does not affect.

 

In the end it's somewhat hard to make a clear sense of how the oral arguments went. They largely reflected the briefs and what one would expect of the Justices' position going in. There was one interesting interchange between Justice Breyer and Justices Alito and Kavanaugh over the role of stare decisis, whether it was worth protecting a decision, even if there were not substantial reliance interests, merely because it increased the predictability and stability of the law and allowed, as Justice Breyer put it, allowed lawyers to tell their clients, "No, I'm sorry. We can't do that," in a way that if stare decisis was somewhat weaker, it's an "all bets are off" and it would be an open playing field. Justice Alito questioned whether the Court might be more respective if it admitted where it had made an error. And Justice Kavanaugh suggested that perhaps the standard should be when an egregious error has been made, which Chemerinsky was willing to entertain for purposes of argument, though he, of course, thought the Nevada v. Hall decision neither egregiously wrong nor wrong at all. And Waxman's rebuttal focused on the comparative doctrines, the intergovernmental tax immunity, the other kinds of immunities that the Court had recognized, and spoke up against an idea of a "Wild West" law of nations as being the only protection for states from the holdings of other states.

 

Now, I should say having already given this much of a discussion, I should reveal my own interest in the affair. With Professor Baude at Chicago, I had authored an amicus brief on behalf of neither party in the case, arguing that there is an immunity for states in other states' courts, but it is not a constitutional immunity. It's an immunity that existed in international law, that still exists in international law, and that can be enforced either in federal courts today or by state courts simply refusing to give effect to the judgments of another state. So if a Nevada state judge sends a summons to the Massachusetts Gaming Commission, they should just throw it in the trash. They have no full faith and credit obligation to listen to the judgment of another state's court because of their sovereign immunity. And indeed that is how the federal courts for roughly a hundred years after the Founding handled issues of state personal jurisdiction. If one state tried to exercise power that under international law it wasn't empowered to do, its judgment would just be disregarded.

 

The distinction between this international law immunity and the somewhat more constitutionalized immunity of the federal court in our argument has to do with enumerated powers. The federal government was not given the power in Article III to call a state to answer without its consent. That's the argument that Madison and Marshall made in the Ratification Conventions, that Hamilton made in the Federalist. But this was an implicit limitation on how one would read the words of Article III. And indeed, how one might read the words of Article I in Seminole Tribe and Alden, the inability of Congress to compel a state under the Commerce Clause to open its courts or to appear in federal court for a case invading its immunity without its consent is a limit on the federal government's enumerated powers. It's something that would've gone without saying at the time.

 

But the fact that the federal government, being a government of defined and limited power, did not have the ability to compel states to answer, doesn't mean that the Constitution itself says anything about state immunities in other states. That might merely be left up to the same international law doctrines that govern state personal jurisdiction for a hundred years, that still governs state border questions today. And so the California Board's remedy was only through an original action in federal court or alternatively, simply through attempting to ignore the judgment and then resist enforcement later on. And I'd be happy to say more about that position during the Q&A.

 

So, again, my upshot from the oral arguments, because they largely tracked the positions that would've be expected is that there's probably greater than 50 percent chance that the Court will hold Nevada v. Hall overruled and will find an atextual constitutional immunity of states on other states' courts, but I wouldn't put it much over 50 percent. Again, Justice Gorsuch didn’t say anything and it's difficult to know how the Justices would handle an argument for a wholly atextual constitutional doctrine.

 

One last note that I want to make is that in our amicus brief, we took the position that the 11th Amendment forbidding suits biases on another state against a state of the United States actually forbade Hyatt's suit. When he filed it, it was as a citizen of Nevada against an entity that both parties assume is California. And that means, in our view, that the federal courts, including the Supreme Court, lack judicial power to hear the case. So we suggested that as a result because this would require overturning certain decisions and the Court had not addressed that question detail, didn't have extensive briefing on it, that the Court should dismiss as improvidently granted. Or if not, should affirm. But it's hard to see. That didn't come up at all at oral argument, so it's hard to know whether any of the Justices are considering that.

 

One point that did come up at oral argument, Justice Kagan cited the brief and questioned whether it's clear that the bargain that Seth Waxman had suggested the states had made—giving up the tools of retaliation in exchange for constitutional immunity—had really occurred? What if those tools were given up in exchange for the right to resist enforcement, as we had suggested? And do we really know what bargain was struck at the time of the Constitutional Convention.

 

So, again, it's hard to know exactly what the Court will do. I would say the odds are in favor of overturning Nevada v. Hall. If so, that will choke off any risk of states being sued in other states' courts. But that doctrine would be somewhat of a departure from the Court's recent focus on the text of the Constitution and on declining to identify constitutional principles and constitutional rights that are not well rooted in that text. So that's all I have to say about the case, but I'm very much looking forward to your questions, and I very much appreciate your time.

 

Wesley Hodges:  Wonderful. Thank you so much, Professor, for that very good insight. It does look like we have one question out of the gate. Professor, let's go ahead and move to our first caller.

 

Caller 1:  Hi. Thank you for your presentation. My understanding is that California sent at least one investigator into Nevada to look into Mr. Hyatt's income. Has anyone made any sort of an argument that by sending one of their investigators into Nevada, California was availing itself, and therefore Nevada courts had jurisdiction over the matter?

 

Prof. Stephen E. Sachs:  Yes. There's an amicus brief by Alan Morrison and Darien Shanske arguing that very much along these lines of standard due process jurisdiction doctrine, California had availed itself of Nevada. The argument is slightly intentioned with other lines of case law involving the difference between sovereign functions, commercial functions, whether if California were merely owning property in Nevada or just held a bake sale in Nevada, it would be relatively controversial that Nevada could regulate that. It's a little less clear if the person who's there is acting in their capacity as a California official whether you can get jurisdiction over California as opposed to just over that person. Certainly, if that person commits any torts, or for that matter, commits any crimes under Nevada law, surely they can be arrested and charged with them for what they do in Nevada.

 

At the time of the Founding, it was less clear whether representatives of a sovereign stood in for the sovereign's personal jurisdiction. And partly, that's because of changes in how we deal with corporate and group liability as well as group jurisdiction. So at the time of the Founding, in Justice Story's opinion in Santissima Trinidad—which is a little later, 1824, I believe—the doctrine was that if the sovereign himself comes personally -- so if the king of California entered Nevada, ordinarily you would assume sovereign immunity unless they had previously revoked it. But if an agent of the king comes in, they wouldn't necessarily be immune in their personal capacity, but you couldn't necessarily get a lawsuit against the foreign sovereign. You can only get a lawsuit against the officers, sort of the "Ex parte Young-ish" approach.

 

That argument did not come up in the oral arguments, but it does serve as the basis for Hyatt's argument by Chemerinsky that this is really a question of states' ability to protect their own citizens from in-state torts. If California is sending all these people into Nevada and Nevada wants to do something about it, it needs to be able to exercise jurisdiction. But under the Founding Era law, it's not clear that it could have done so by holding California to account as opposed to holding all of the individuals to account.

 

Wesley Hodges:  Thank you so much for you question, caller. Let's go ahead and go to our second caller.

 

Jack Park:  Thank you, Professor Sachs. This is Jack Park. There are other atextual immunity doctrines, and the one I have in mind is Hans v. Louisiana, which I think is reasonably well-grounded, given that it's an 1893 understanding of sovereign immunity. But what does -- or do you see other attacks on atextual immunities coming if the Court leaves Nevada v. Hyatt in place?

 

Prof. Stephen E. Sachs:  So I think that one of the things that we had tried to do in our own amicus briefs—and take the following with a grain of salt since it reflects our views and not necessarily that of the Court—was to distinguish a number of cases – Hans v. Louisiana, Monaco v. Mississippi, Seminole Tribe, Alden – that recognized atextual sovereign immunity as against the federal government from those against the states. Because the federal government only has power to call states to the bar of a federal court or to force them to open their own courts as in Alden if the Constitution actually confers that power.

 

And so there were plenty of statements at the time of the ratification debates by Hamilton, Madison, Marshall, and others taking the position that the mere creation of Article III jurisdiction with categories that could involve a person suing a state, didn't mean that it actually gave power to the federal government to call a state to answer because that's the sort of thing that would not be stated merely by implication. That's the sort of thing that would've been so surprising it has to be spelled out directly. Madison's example was that you can have a suit involving an alien as a party, but everyone knows that during war time, alien enemies can't sue. We're not aggregating that doctrine by creating a head of jurisdiction for alienage in Article III; we're just saying that whenever an alien can sue under all the other doctrines and [if] they meet the diversity requirements, they can sue in federal court. And likewise, we're not saying by putting in a provision for suits between citizens of a state and a different state that we are aggregating the immunity that states currently enjoy, we're merely saying that in a case where immunity did not come up, such as if the state had consented or if the state were the plaintiff, that the federal courts could take cognizance of it.

 

And so what Hans v. Louisiana in our view was really saying is exactly that, that the existence of federal question jurisdiction doesn't mean that you have federal question jurisdiction for a case filed by a citizen against their own state. That's a separate legal question, involves separate doctrines. And the mere existence of federal question jurisdiction to go to0 the federal courts allowing parties with federal questions to go to federal courts doesn't settle the scope of the immunity.

 

Here, though, it's a very different question because the states have as much power over their own courts as they had before the Constitution unless the Constitution took it away. That's the guarantee of the 10th Amendment. And so in our view, at least, the position of the state courts and the federal courts is very different. The states can do anything that's not forbidden as opposed to only the things that are permitted. I don't know whether there will be a general reevaluation of some of the other atextual doctrines. I would hope yes for my own views. And in general, it's sort of hard for a textualist, originalist, conservative majority, to the extent that they are textualist and originalist, to write an opinion that rests on what could be thought of as penumbras and emanations or invisible ink provisions in the Constitution that aren't really there, and yet, nonetheless, prevent a state from doing what it would otherwise do.

 

I think as to many of these questions, it's international law that provides the actual basis of decision. When they're deciding questions about state border, whether New Jersey or New York own Ellis Island, they don't look to what the states say about that, of course, but they look to traditional doctrines of littoral and repairing borders to determine what happens to sovereign borders under international law. And they enforce it either as a matter of federal common law or just directly. And I think that's largely what they ought to be doing in a case like Franchise Tax Board v. Hyatt. But it seems more likely to me, given the way the parties had briefed the case, that they will identify some atextual constitutional doctrine.

 

Wesley Hodges:  Thank you, Jack, and thank you, Professor. Looks like we do have another question, a couple of questions. Thank you for dialing in. Let's go ahead and move to our next caller.

 

Caller 3:  Good afternoon, and thank you so much for that very interesting presentation. I was wondering whether you see any implications in this case for states' sovereign immunity to sue in tribal court, if you have any comment on that.

 

Prof. Stephen E. Sachs:  That is an area that is slightly outside my expertise, so I hesitate to opine on it. It did come up briefly in the oral argument I think in the reverse direction, the question of the immunity of Indian tribes in state court. The Chief Justice asked a question whether on Hyatt's view it was entirely up to the states whether to suspend that immunity. When Chemerinsky noted that it was still an open question, that the Court had reserved that question in other cases with respect to torts that the party interacting with the Indian tribe could not have bargained around or negotiated for, and also noted that Congress has, at least under current doctrine, plenary power with respect to Indian affairs. And so it's conceivable that if some states started acting in a way that seemed improper, Congress could just write a statute and secure or eliminate immunity as it saw fit.

 

As to the question of state immunity in tribal court, I imagine that the argument would be something similar because the Constitution, as least, does not directly limit the powers of Indian tribes. If no statute does so, it's not clear to me what would prevent a tribal court from issuing a judgment against a state, except for the fact that it might very well need that judgment enforced somewhere else. In our view, that judgment, if it violated the traditional rules of immunity, would just be an empty letter. It would be a piece of waste paper, as an early 19th century court described it, and the state could just ignore it and go on its way. Under current doctrine of the Full Faith and Credit Clause, the Court has not yet recognized a sovereign immunity exception, though one may very well be available from history. So it's not clear to me how the Court would implement that doctrine, but I think that if it reaffirmed Hall, it would presumably allow tribal courts to do at least as much as state courts can do, unless some provision of federal legislation takes that power away.

 

Wesley Hodges:  Thank you so much, caller. We do have another question in the queue. Here's out next caller.

 

Caller 4:  Hello. My question is more of a big picture question. It's how frequent is it that one state is being sued in another state court? And is the context similar to this tax case, or is it all sorts of contexts or what?

 

Prof. Stephen E. Sachs:  So my understanding is that it is not very common. The amicus curiae brief on behalf of almost all of the states was not able to come up with more than a few examples of this occurring in recent times. I think they found five other tax cases that have been brought against one state -- the court of another state, and a few other cases involving motor vehicle collisions where a state employee goes into another state, contract disputes involving contractors, family law cases, medical malpractice arising from state hospital for someone from another state. The question is less how many cases there have been and more of a question of how many cases they're going to be if this seems like a good option that the Court is likely to protect. It's certainly conceivable that litigants would find that to be a more useful approach.

 

Also, there's a brief from the Multistate Tax Commission which argues that even though there are very few of these cases, they have a very deleterious impact on the enforcement of state tax law. States often have separate procedures for assessing tax liability that are in special courts or outside the usual court system. Indeed, Hyatt's tax liability, as I mentioned before, is still being litigated in the administrative process, even though this case started in 1991. And the states try to maintain complete control over their tax processes, but if another state's court can weigh in, then you might have an increase in conflicts. And certainly, if there's advantages to folks being located in different states for tax reasons and suits like Hyatt's about where their true residence is, you could imagine that area of litigation becoming more important if the Court reaffirms Hall.

 

Wesley Hodges:  Seeing no immediate questions from the audience, Professor, I turn the mic back to you. Do you have any closing thoughts for us today?

 

Prof. Stephen E. Sachs:  No. Thank you very much for your time.

 

Wesley Hodges:  Wonderful. Well, Professor, we certainly do appreciate you. And on behalf of The Federalist Society, I'd like to thank you for the benefit of your valuable time and expertise today. We welcome all listener feedback by email at info@fedsoc.org. Thank you all for joining. This call is now adjourned.

 

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