Phillip Long, David Wood v. John Van De Kamp, Attorney General of the State of California
Phillip LONG, David Wood, Plaintiffs-Appellees, v. John VAN De KAMP, Attorney General of the State of California, Defendant-Appellant
Opinion
PER CURIAM:
The facts are stated in the district court’s opinion which is reported at 772 F.Supp. 1141 (C.D.Cal.1991). The district court concluded that the Eleventh Amendment did not stand as a bar to its jurisdiction over this case.
Id.
at 1143 . However, under Ex parte Young, 209 U.S. 123 , 28 S.Ct. 441 , 52 L.Ed. 714 (1908), there must be a connection between the official sued and enforcement of the allegedly unconstitutional statute, and there must be a threat of enforcement. We doubt that the general supervisory powers of the California Attorney General are sufficient to establish the connection with enforcement required by Ex parte Young. See Southern Pacific Transportation Co. v. Brown, 651 F.2d 613, 614 (9th Cir.1981) (as amended) (Oregon Attorney General’s power to direct and advise, which was not binding on district attorneys who had independent duty to enforce state law, was not sufficiently connected with enforcement). Moreover, there is no threat that Cal.Vehicle Code § 2805(a) will be enforced by the Attorney General. Absent a real likelihood that the state official will employ his supervisory powers against plaintiffs’ interests, the Eleventh Amendment bars federal court jurisdiction.
The lack of threatened enforcement by the Attorney General also means that the “case or controversy” requirement of Article III is not satisfied. The Attorney General has not in any way indicated that he intends to enforce section 2805(a). In addition, the searches of plaintiffs’ premises were not the result of any action attributable or traceable to the Attorney General. Consequently, an injunction against the Attorney General will not forestall such future searches of plaintiffs’ property because there is no indication that the Attorney General intends to pursue, or encourage local law enforcement agencies to pursue, such searches under section 2805(a).
See Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38-41 , 96 S.Ct. 1917, 1924-26 , 48 L.Ed.2d 450 (1976).
Accordingly, we vacate the district court’s order and remand with instructions to dismiss this case.
*153 We find Judge Wilson’s well-reasoned examination of the Fourth Amendment issue persuasive, but given our resolution of the Eleventh Amendment issue we do not reach the Fourth Amendment issue.
VACATED and REMANDED.
How later courts describe this case
Explanatory parentheticals written by citing courts — 5 in all; the most informative distinct ones are shown.
-
(stating that Ex Parte Young requires both a connection with enforcement and a threat of enforcement)
-
(dismissing an action against the attorney general because plaintiffs injury from an illegal search did not result from any action attributable to the officer)
-
(instructing the district court to dismiss an attorney general on Eleventh Amendment grounds, after finding no "real likelihood" that he would employ his supervisory powers against the plaintiffs' interest)
-
(“[U]nder Ex parte Young there must be a connection between the official sued and enforcement of the allegedly unconstitutional statute . . . .” (citation omitted))
Cited by 44 cases
View all citing references →Relies on it most ⓘ
Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.