The decision in Chisholm v. Georgia956 that this category of cases 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.957 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.958 This it does by holding rigorously to the rule that all the party defendants be citizens of other States959 and by adhering to congressional distribution of its original jurisdiction concurrently with that of other federal courts.960
956 2 U.S. (2 Dall.) 419 (1793).
957 See the discussion under the Eleventh Amendment.
958 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).
959 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).
960 Wisconsin v. Pelican Ins. Co., 127 U.S. 265 (1888).
Jurisdiction Confined to Civil Cases.—In Cohens v. Virginia,961 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.962 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.963 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.964 Sixty-seven years later, the Court wrote this dictum into law in Wisconsin v. Pelican Ins. Co.965 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,966 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.967
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,968 and if it sues for its own interest as owner of another State’s bonds, rather than as an assignee for collection, jurisdiction exists.969 Where a State in order to avoid the limitation of the Eleventh Amendment by statute provided 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.970 Nor can a State sue on behalf of its own citizens the citizens of other States to collect claims.971
961 19 U.S. (6 Wheat.) 264, 398-399 (1821).
962 Pennsylvania v. Quicksilver Mining Co., 77 U.S. (10 Wall.) 553 (1871).
963 California v. Southern Pacific Co., 157 U.S. 229 (1895); Minnesota v. Northern Securities Co., 184 U.S. 199 (1902).
964 19 U.S. (6 Wheat.) at 398-399.
965 127 U.S. 265 (1888).
966 2 U.S. (2 Dall.) 419, 431-432 (1793).
967 127 U.S. at 289-300.
968 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).
969 South Dakota v. North Carolina, 192 U.S. 286 (1904).
970 New Hampshire v. Louisiana, 108 U.S. 76 (1883).
971 Oklahoma ex rel. Johnson v. Cook, 304 U.S. 387 (1938).
The State as Parens Patriae.—The distinction between suits brought by States to protect the welfare of its 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.,972 the State was refused permission to sue to enjoin unreasonable rate charges by a railroad on the shipment of specified commodities, inasmuch as the State was not engaged in shipping these commodities and had no proprietary interest in them. But in Georgia v. Pennsylvania R.R.,973 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 twenty 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.”’974
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.”975
972 220 U.S. 277 (1911).
973 324 U.S. 439 (1945).
974 324 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 parens patriae to enjoin 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, 607-608 (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, 737-739 (1981).
975 Georgia v. Pennsylvania R. R. Co., 324 U.S. 439, 468 (1945). Chief Justice Stone and Justices Roberts, Frankfurter, and Jackson dissented.
The continuing vitality of this case is in some doubt, inasmuch as the Court has limited it in a similar case.976 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.977
One clear limitation had seemed to be solidly established until recent litigation cast doubt on its foundation. It is no part of a State’s “duty or power,” said the Court in Massachusetts v. Mellon,978 “to enforce [her citizens’] rights in respect to their relations with the Federal Government. In that field, it is the United States and not the State which 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,979 while holding that the State lacked standing under Massachusetts v. Mellon to attack the constitutionality of the Voting Rights Act of 1965980 under the Fifth Amendment’s due-process clause and under the bill-of-attainder clause of Article I,981 the Court proceeded to decide on the merits the State’s claim that Congress had exceeded its powers under the Fifteenth Amendment.982 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 which is contrary to a number of supposedly venerated cases.983 Either alternative possibility would be significant in a number of respects.984
976 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. § 15c et seq., but the decision in Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977), reduced in importance the significance of the law.
977 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). While 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 the 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).
978 262 U.S. 447, 486 (1923).
Last modified: June 9, 2014