652
Souter, J., concurring
the universal practice. While the regulatory commission is generally a nominal defendant when a party appeals in the federal system,6 this is not the uniform practice among the States, several of which caption utility cases on judicial review in terms of the appealing utility.7
The only credible response, which Maryland to its credit advances, is that the State has a strong interest in any case where its adjudication of a federal question is challenged.8 See Supplemental Brief for Respondents MCI WorldCom, Inc., et al. 21-24. An adverse ruling in one appeal can no doubt affect the state commission's ruling in future cases. But this is true any time a state court decides a federal question and a successful appeal is made to this Court, and no one thinks that the Eleventh Amendment applies in that instance. See Cohens v. Virginia, 6 Wheat. 264, 412 (1821) (a writ of error from a state-court decision is not a "suit" under
6 See 5 U. S. C. §§ 702-703; Fed. Rule App. Proc. 15(a)(2)(B).
7 See, e. g., In re Hawaiian Elec. Co., 81 Haw. 459, 918 P. 2d 561 (1996); In re Petition of Interstate Power Co., 416 N. W. 2d 800 (Minn. Ct. App. 1987); Appeal of Campaign for Ratepayers Rights, 145 N. H. 671, 766 A. 2d 702 (2001); In re Petition for Declaratory Ruling of Northwestern Public Serv. Co., 560 N. W. 2d 925 (S. D. 1997); In re Citizens Util. Co., 171 Vt. 447, 769 A. 2d 19 (2000).
8 The Fourth Circuit obliquely questioned the strength of the State's interest, noting that "under Maryland law, it is not necessary for the State commission, much less the individual commissioners, to be a party to an appeal for State-court review of its determinations." Bell Atlantic Md., Inc. v. MCI Worldcom, Inc., 240 F. 3d 279, 295 (2001). But while the Maryland statute which the Fourth Circuit cited, Md. Pub. Util. Cos. Code Ann. § 3-204(d) (1998), does provide that "[t]he Commission may," not must, "be a party to an appeal," the Maryland courts have specified that the Public Service Commission is one of certain agencies " 'the functions of which are so identified with the execution of some definite public policy as the representative of the State, that their participation in litigation affecting their decisions is regarded by the Legislature as essential to the adequate protection of the State's interests.' " Calvert County Planning Comm'n v. Howlin Realty Management, Inc., 364 Md. 301, 315, 772 A. 2d 1209, 1216-1217 (2001) (quoting Zoning Appeals Board v. McKinney, 174 Md. 551, 561, 199 A. 540, 545 (1938)).
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