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Clark v. Virginia Department of State Police

Supreme Court of Virginia

December 1, 2016

JONATHAN R. CLARK
v.
VIRGINIA DEPARTMENT OF STATE POLICE

         FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Lynn S. Brice, Judge

          OPINION

          D. ARTHUR KELSEY, JUSTICE

         A 1998 amendment to the Uniformed Services Employment and Reemployment Rights Act ("USERRA"), see 38 U.S.C. §§ 4301-4335, created a private right of action enforceable against States in their own courts, see 38 U.S.C. § 4323(b)(2). In this case, the trial court held that principles of sovereign immunity barred a USERRA suit filed by Jonathan R. Clark against the Virginia Department of State Police ("VSP"), an arm of the Commonwealth. We agree and affirm.

         I.

         Clark filed a USERRA claim against the VSP, alleging that he was denied a promotion because of his service in the United States Army Reserves. The VSP responded with a plea of sovereign immunity. As an agency of the Commonwealth, the VSP argued that it could not be sued on a federal right of action in state court absent a waiver of sovereign immunity. Neither it nor the General Assembly, the VSP asserted, had waived sovereign immunity for USERRA claims filed in state court. The trial court agreed, granted the plea of sovereign immunity, and dismissed Clark's USERRA claim.

         II.

         On appeal, Clark contends that the trial court misapplied sovereign-immunity principles and thus erred in dismissing his USERRA claim. The United States, appearing as amicus, concurs with Clark and urges us to hold that the Commonwealth's sovereign immunity has been lawfully abrogated by 38 U.S.C. § 4323(b)(2). The VSP responds that the trial court correctly applied sovereign-immunity principles and had no choice but to dismiss the USERRA action. We hold that the trial court properly dismissed Clark's USERRA claim based upon the Commonwealth's sovereign immunity.[1]

         A.

         "Dual sovereignty is a defining feature of our Nation's constitutional blueprint." Sossamon v. Texas, 563 U.S. 277, 283 (2011) (citation omitted). "Upon ratification of the Constitution, the States entered the Union 'with their sovereignty intact.'" Id. (citation omitted). Federalism presupposes that the States retain exclusive sovereignty in some aspects of governance, share sovereign power with the federal government in other aspects, and yield their sovereign power only in those aspects of governance exclusively assigned to the federal government by the United States Constitution. See generally Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 779 (1991) (collecting cases).

         Under the Constitution's segmentation of governmental power, States retain "a residuary and inviolable sovereignty" that precludes them from being "relegated to the role of mere provinces or political corporations" of a consolidated national government. Alden v. Maine, 527 U.S. 706, 715 (1999) (first quote from The Federalist No. 39, at 245 (J. Madison) (C. Rossiter ed., 1961)). As James Madison explained, States possess "distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere." Id. at 714 (quoting The Federalist No. 39, at 245).

         From the beginning of the Republic, the doctrine of state sovereign immunity has been a mainstay of federalism principles. It was an axiom of English law that "the law ascribes to the king the attribute of sovereignty, " and thus, "no court can have jurisdiction over him" because "jurisdiction implies superiority of power." 1 William Blackstone, Commentaries *241-42. "Immunity from private suits has long been considered 'central to sovereign dignity.'" Sossamon, 563 U.S. at 283 (citation omitted). Based on that tradition, "[t]he generation that designed and adopted our federal system considered immunity from private suits central to sovereign dignity." Alden, 527 U.S. at 715.

         Alexander Hamilton considered it "inherent in the nature of sovereignty" for a state "not to be amenable to the suit of an individual without its consent." The Federalist No. 81, at 487 (A. Hamilton). "This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in Union." Id. Speaking at the Virginia ratifying convention, James Madison agreed: "It is not in the power of individuals to call any state into court." 3 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 533 (1827). John Marshall concurred, "It is not rational to suppose that the sovereign power [i.e., a State] should be dragged before a court." Id. at 555.

         In 1793, roughly five years after the ratification of the Constitution, a South Carolinian filed suit in the United States Supreme Court against the State of Georgia seeking payment of a debt incurred during the American Revolution. In that case, Chisholm v. Georgia, 2 U.S. 419 (1793), Georgia protested that the federal judicial power in Article III did not abrogate States' sovereign immunity. "The suability of a State without its consent, " Georgia no doubt assumed, "was a thing unknown to the law." Hans v. Louisiana, 134 U.S. 1, 16 (1890). A majority of Justices on the Supreme Court disagreed, holding that Article III implicitly abolished state sovereign immunity by affirmatively granting federal courts the power to decide disputes between private citizens and States. See Chisholm, 2 U.S. at 452, 466, 467.[2]

         Georgia's representatives were none too pleased. The day after the opinion was issued, the Georgia congressional delegation introduced a resolution in Congress that, while initially unsuccessful, would later become the Eleventh Amendment. See Alden, 527 U.S. at 721. Clarifying its views with further emphasis, the Georgia House of Representatives passed a bill stating that anyone who attempted to enforce Chisholm would be "guilty of felony and shall suffer death, without benefit of clergy, by being hanged." Id. at 720-21 (citation omitted). Within a year, the Eleventh Amendment passed Congress with near unanimity and was swiftly ratified by the States. Chisholm, an opinion ...


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