J. Richard Ernst, William T. Ervin, James E. Wilson v. DOUGLAS B. ROBERTS, Treasurer of the State of Michigan

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0266P (6th Cir.)
File Name: 04a0266p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
J. RICHARD ERNST, WILLIAM
T. ERVIN, JAMES E. WILSON,
and JOHN PATRICK O’BRIEN,
on behalf of themselves and
all others similarly situated,
Plaintiffs-Appellants,
v.
DOUGLAS B. ROBERTS,
Treasurer of the State of
Michigan; CHRISTOPHER M.
DEROSE, Director,
Department of Management
and Budget Office of
Retirement Systems; GEORGE
M. ELWORTH, Member,
Michigan Judges Retirement
Board; ROY PENTILLA,
Member, Michigan Judges
Retirement Board; ERIC E.
DOSTER, Member, Michigan
Judges Retirement Board;
LYLE VAN HOUTEN, Member,
Michigan Judges Retirement
Board; and ROBERT RANSOM,
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No. 02-2287
2 Ernst, et al. v. Roberts, et al. No. 02-2287
*The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
Member, Michigan Judges
Retirement Board,
Defendants-Appellees.
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N
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 01-73738—Bernard A. Friedman, Chief District Judge.
Argued: January 30, 2004
Decided and Filed: August 12, 2004
Before: SUHRHEINRICH and CLAY, Circuit Judges;
GWIN, District Judge.*
_________________
COUNSEL
ARGUED: Kenneth A. Flaska, KASIBORSKI, RONAYNE
& FLASKA, Detroit, Michigan, for Appellants. Wendell A.
Wilk, DYKEMA GOSSETT, Lansing, Michigan, for
Appellees. ON BRIEF: Kenneth A. Flaska, Chester E.
Kasiborski, Jr., KASIBORSKI, RONAYNE & FLASKA,
Detroit, Michigan, for Appellants. Wendell A. Wilk, Lori M.
Silsbury, DYKEMA GOSSETT, Lansing, Michigan, Larry F.
Brya, OFFICE OF THE ATTORNEY GENERAL, Lansing,
Michigan, for Appellees.
CLAY, J., delivered the opinion of the court, in which
GWIN, D. J., joined. SUHRHEINRICH, J. (pp. 37-57),
delivered a separate dissenting opinion.

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No. 02-2287 Ernst, et al. v. Roberts, et al. 3
_________________
OPINION
_________________
CLAY, Circuit Judge. Plaintiffs, J. Richard Ernst, William
T. Ervin, James E. Wilson, and John Patrick O’Brien, appeal
from the order issued by the United States District Court for
the Eastern District of Michigan, entered on September 30,
2002, granting the motion to dismiss of Defendants
(Treasurer of the State of Michigan Douglas B. Roberts and
affiliated parties), declining to exercise supplemental
jurisdiction over Plaintiffs’ state law claims, and denying as
moot Defendants’ motion for abstention or, alternatively, for
a stay of proceedings, and Plaintiffs’ motion to strike an
affidavit, in this action under 42 U.S.C. § 1983, challenging
the Michigan Judges Retirement Act of 1992, MICH. COMP.
LAWS § 38.2101 et seq., as violating the United States and
Michigan Constitutions and also asserting state law claims for
wasting trust and breach of fiduciary duty. For the reasons set
forth below, we REVERSE the district court’s dismissal of
Plaintiffs’ federal claims.
BACKGROUND
Procedural History
On September 5, 2001, Plaintiffs filed a complaint, in
which they alleged that the Michigan Judges Retirement Act
of 1992, MICH. COMP. LAWS § 38.2101 et seq., violates the
Equal Protection Clauses of the United States and Michigan
Constitutions and various provisions of state law. The
complaint set forth ten counts. The initial eight counts of
Plaintiffs’ complaint alleged four separate theories of
violation of equal protection. For each theory of the
complaint, one count is devoted to federal law and another to
state law. The final two counts of the complaint alleged
4 Ernst, et al. v. Roberts, et al. No. 02-2287
1The district court o pinio n set forth the counts in de tail. Ernst v.
Roberts, 225 F. Supp. 2d 7 81, 784-85 (E .D. Mich. 2002 ).
violations of state law not related to equal protection, namely,
wasting trust and breach of fiduciary duty.1
Plaintiffs sought various forms of relief. Plaintiffs sought
certification of the action as a class action pursuant to FED. R.
CIV. P. 23. Plaintiffs also sought restitution in the form of
monetary awards. Additionally, Plaintiffs sought declaratory
and injunctive relief, to alter the retirement system’s
functioning, for the purpose of bringing it into compliance
with the laws whose violation Plaintiffs alleged.
The federal law counts relied upon 42 U.S.C. § 1983 as the
basis for pleading the liability of Defendants (the Treasurer of
the State of Michigan and affiliated parties), all of whom are
government officials. On December 7, 2001, Defendants
filed a Motion for Abstention or, Alternatively, for a Stay in
the Proceedings. On December 18, 2001, Defendants filed a
Motion to Dismiss or, in the Alternative, for Summary
Judgment. On February 8, 2002, Plaintiffs filed a Motion to
Strike the Affidavit of Daniel A. Norberg. On March 20,
2002, the district court held a hearing on Plaintiffs’ motion to
strike, Defendants’ motions to dismiss or for summary
judgment, and Defendants’ motion for abstention or for a stay
of proceedings.
On September 30, 2002, the district court entered an
opinion and order, granting Defendants’ motion to dismiss
Plaintiffs’ federal claims (Counts I, III, V, and VII) due to
Defendants’ Eleventh Amendment immunity; declining to
exercise supplemental jurisdiction over Plaintiffs’ state claims
(Counts II, IV, VI, VIII, IX, and X); denying as moot
Defendants’ motion for abstention or for a stay of
proceedings; and denying as moot Plaintiffs’ motion to strike
the Norberg affidavit. Ernst v. Roberts, 225 F. Supp. 2d 781,

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No. 02-2287 Ernst, et al. v. Roberts, et al. 5
2The treasurer at the time of the complaint, Mark A . M urray, was
replaced by Douglas B. Roberts, who was substituted as a Defendant, by
a district court order, on November 8, 2001.
789 (E.D. Mich. 2002). Plaintiffs filed a timely notice of
appeal.
Substantive Facts
The district court stated the background facts that gave rise
to this case as follows:
The plaintiffs in this case are a Michigan circuit judge, a
Michigan probate judge, a Michigan district judge, and
a retired Michigan circuit judge. The case has not been
certified as a class action, nor have plaintiffs moved yet
for class certification. Nonetheless, plaintiffs purport to
represent all active and retired Michigan judges who are
“similarly situated.” The basic allegation in the
complaint is that the Judges Retirement Act of 1992
(“JRA”), which created the Judges Retirement System
(“JRS”), treats judges of the 36th District Court more
favorably than the “non-36th District Court judges.”
Plaintiffs claim that this disparity violates equal
protection because there is no rational basis for providing
judges of the 36th District Court more favorable
pensions.
The defendants are:
-- Mark Murray[2], the Treasurer of the State of
Michigan;
-- Christopher DeRose, the Director of the Office of
Retirement Systems, which is part of the Michigan
Department of Management and Budget. DeRose is also
the executive secretary of the Judges Retirement System;
and
6 Ernst, et al. v. Roberts, et al. No. 02-2287
3These two types of plans d iffer as follows:
In a defined contribution plan “employees are not promised any
particular level of benefits; instead they are promised only that
they will receive the ba lance in their individual accounts.”
Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 637
n.1, 110 L. Ed . 2d 5 79, 110 S. Ct. 2668 (199 0). T his is in
contrast to a defined bene fit plan which pro vides a fixed b enefit
to the employee. 29 U.S.C. § 1002 (35).
Ben nett v. CONRAIL Matched Sav. Plan Admin. Comm., 168 F.3d 671,
675 n.2 (3d C ir. 1999).
-- George Elworth, Roy Pentilla, Eric Doster, Lyle Van
Houten, and Robert Ransom, all of whom are members
of the Michigan Judges Retirement Board (“MJRB”).
Under the JRA, as amended in 1996, all Michigan judges
are covered by one of two pension plans. “Tier 1” is a
defined benefit plan; “Tier 2” is a defined contribution
plan.[3] Judges who first entered office before March 31,
1997, were in Tier 1. Judges who first entered office
thereafter were in Tier 2. The 1996 amendment to the act
permitted Tier 1 participants to move to Tier 2, but they
had to make this election by a certain date in 1998.
Ernst v. Roberts, 225 F. Supp. 2d at 783-84. More of a
factual background is not needed, for purposes of this
opinion, because the district court never reached the merits.
As explained below, the district court’s dismissal of the
federal claims under the Eleventh Amendment constituted a
dismissal for lack of jurisdiction.
DISCUSSION
Plaintiffs make four arguments. First, Plaintiffs claim that
the district court erred in dismissing the federal claims on the
basis of Eleventh Amendment immunity. Secondly, Plaintiffs
argue that even if, arguendo, the federal claims were properly
dismissed due to Eleventh Amendment immunity, the district

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No. 02-2287 Ernst, et al. v. Roberts, et al. 7
4Eleventh Amendm ent immunity is an issue of jurisdiction, but the
issue is no longer classified as sim ply a question of subject matter
jurisdiction. Ku v. Tennessee, 322 F.3d 431, 434 (6th Cir. 2003) (“by
creating a clear rule of waiver by removal, the Supreme Court [in Lapides
v. Bd. of Regen ts of the Univ. Sys. of Ga., 535 U.S. 613, 122 S. Ct. 1640,
152 L. Ed. 2d 806 (2002)] has unequivocally rejected the view that, in
cases over which the federal court otherwise has original jurisdiction, the
additional ‘jurisdictional bar’ erected by the Eleventh Amendme nt should
be treated as a matter o f ‘subjec t matter’ jurisdiction rather than ‘personal’
jurisdiction.”).
5Eleventh Amendment analysis must be d one on a claim-by-claim
basis. Henry v. Metro. Sewer D ist., 922 F.2d 332, 338 (6th Cir. 1990).
court erred in dismissing the claims with prejudice. Thirdly,
Plaintiffs aver that the district court erred by granting
Defendants’ motion to dismiss without identifying the precise
rule upon which it relied and by ruling without affording
Plaintiffs discovery regarding the Eleventh Amendment
immunity defense. Finally, Plaintiffs argue that if Defendants
are not entitled to Eleventh Amendment immunity, then the
district court should be required to revisit the issue of
assuming supplemental jurisdiction over Plaintiffs’ state law
claims.
Because we rule that Defendants are not entitled to
Eleventh Amendment immunity on any of the claims, we
decline to address Plaintiffs’ second argument. We take the
remaining three issues in order.
The first two issues that we address are reviewed de novo,
because these issues address the ruling on Eleventh
Amendment immunity. Barton v. Summers, 293 F.3d 944,
948 (6th Cir. 2002).
I.
Eleventh Amendment immunity bars federal courts from
exercising jurisdiction4 over a claim,5 where the party
8 Ernst, et al. v. Roberts, et al. No. 02-2287
6The party asserting Eleventh Amendment immunity bears the
burden of establishing it. Gragg v. Ky. Cabinet for Workforce Dev., 289
F.3d 958 , 963 (6th Cir. 2002).
7Higgins v. Mississippi, 217 F.3d 951 , 953 (7th Cir. 2000)
(characterizing Eleventh Amendment immunity as “an affirmative
defense rather than a limitation on jurisdiction.”).
Generally, the party asserting jurisdiction has the burden of
establishing it. E.g., Hudson v. Coleman, 347 F.3d 13 8, 141 (6th Cir.
2003). The difference b etween Eleventh A mendme nt immunity and other
jurisdictional issues, in this respect, supports the view of the immunity as
an affirmative defense to jurisdiction.
There is further support for the characterization as an affirmative
defense in the fact that Eleventh Amendment immunity can be waived by
the state or agency (see infra note 8), while original jurisdiction cannot be
waived. E.g., United States v. County of Muskegon, 298 F.3d 569 , 579
(6th Cir. 2002).
The notion of this imm unity as an affirmative defense to jurisdiction
helps to exp lain its differences from other issues of jurisdiction. Henry v.
Metro. Sew er Dist., 922 F.2d 332, 338 (6th Cir. 1990) (“the atypical
jurisdictional bar of the eleventh amendment”).
8Even if the party being sued is a state or an arm of the state,
Eleventh Amendment immunity will not apply to a claim, under various
circumstances.
asserting immunity establishes that immunity applies.6 In
burden allocation, as well as in other respects, Eleventh
Amendment immunity may be considered to be an affirmative
defense to jurisdiction.7
Plaintiffs argue that Eleventh Amendment immunity does
not bar the federal claims in this case. The Eleventh
Amendment bars suits against a state by citizens of another
state, and, under Hans v. Louisiana, 134 U.S. 1, 10 S. Ct. 504,
33 L. Ed. 842 (1890), the Eleventh Amendment prohibits
citizens from suing their own state. Barton v. Summers, 293
F.3d 944, 948 (6th Cir. 2002) (citing Hans).
When a state or an arm of the state is sued, there are various
exceptions to immunity;8 but none of these exceptions fully

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No. 02-2287 Ernst, et al. v. Roberts, et al. 9
Immunity may be waived by the state or agen cy. Lapides v. Bd. of
Reg ents, 535 U.S. 613 , 619 (2002); Law son v. Shelby C oun ty, 211 F.3d
331, 334 (6th Cir. 2000); Nelson v. Miller, 170 F.3d 64 1, 646 (6th Cir.
1999).
Immunity may be waive d by C ongress. Nelson v. Miller, 170 F.3d
at 646; Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1 989).
There will be no immunity if the claim challenges the
constitutionality of actions against state officials and seeks o nly
prospective, non-monetary damages, such as an injunc tion. Rossborough
Mfg. Co. v. Trim ble, 301 F.3d 482, 489 (6th Cir. 2002) (citing Edelman
v. Jordan, 415 U.S. 651, 664, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974) and
Ex Parte Young, 209 U.S. 123 , 150 -60, 28 S. C t. 441, 52 L. Ed. 714
(1908)); Nelson v. Miller, 170 F.3d at 646.
9The dissent states, “In fact, on the flip side, the Supreme Court has
consistently held that a state does not waive its Eleventh Amendment
immunity by consenting to suit only in its own co urts.” (Emphasis in
original.)
governs the present case. Contrary to the dissent’s
characterization of our holding,9 we do not rule that the state
has waived its immunity to suit. The dissent emphasizes that
a waiver of state court immunity does not constitute a waiver
of immunity to suit in federal court. This proposition is
perfectly true and equally irrelevant. Our holding is not that
the state has waived immunity to suit against the JRS; rather,
for the reasons stated below, we hold that the JRS is akin to
a political subdivision (and not an arm of the state), which
means that immunity never applied. Because immunity never
applied, it was not waived.
Under Ex Parte Young, there is no immunity for a claim for
only prospective, non-monetary relief. See supra note 8.
Various federal claims in this case clearly seek monetary
relief, including the refund and payment of portions of
Plaintiffs’ contributions to the JRS. Because we hold that
none of the claims for monetary relief are covered by
Eleventh Amendment immunity, we need not reach the issue
of whether there are any federal claims seeking only
prospective, non-monetary relief. The dissent has gone to
10 Ernst, et al. v. Roberts, et al. No. 02-2287
10“In addition to the states themselves, the Eleventh Amendment
immunizes departments and agencies of the states. Pennhurst State Sch.
& Hosp. v. Halderman, 465 U.S. 89, 100, 1 04 S . Ct. 900, 79 L. Ed. 2d 67
(1984).” Dubuc v. Mich. Bd. of Law Exam ’rs, 342 F.3d 61 0, 615 (6th Cir.
2003).
W hen sued in their official capacities, individual defendants enjoy
immunity if they are officials of a state agency that would enjoy
great pains to emphasize that monetary relief is sought. But,
as explained below, the question of Eleventh Amendment
immunity hinges on whether or not the state would potentially
be liable for a judgment in the case; hence, the fact that
monetary relief is sought is not determinative–rather, the key
question is where the monetary relief would come from, if a
judgment were entered. (The dissent rightfully acknowledges
this point, stating, “To rephrase the issue a bit: by providing
the requested relief, would we be ordering prospective
injunctive relief, or monetary damages? And if the latter,
where would the money come from?”)
The dispute as to jurisdiction in the present case arises due
to the fact that the Eleventh Amendment does not bar all suits
against non-federal public agencies. The Eleventh
Amendment does not apply to political subdivisions, such as
municipalities. Monell v. Dep’t of Soc. Servs., 436 U.S. 658,
691 (1978). As stated in Hall v. Medical College of Ohio,
When an action is brought against a public agency or
institution, and/or the officials thereof, the application of
the Eleventh Amendment turns on whether said agency
or institution can be characterized as an arm or alter ego
of the state, or whether it should be treated instead as a
political subdivision of the state.
742 F.2d 299, 301 (6th Cir. 1984) (citing Mt. Healthy City
Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S. Ct.
568, 50 L. Ed. 2d 471 (1977)). The question before us is
whether the JRS is identifiable as an arm or alter ego of the
state, as is necessary for the JRS and its agents10 to be

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No. 02-2287 Ernst, et al. v. Roberts, et al. 11
immunity. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)
(stating, regarding a claim against an individual state official, pursuant to
42 U.S .C. § 19 83, “a suit against a state official in his or her official
capacity is not a suit against the official but rather is a suit against the
official’s office. As such, it is no different from a suit against the State
itself.”) (citations omitted). See also Hall v. Med. Coll. of Ohio, 742 F.2d
299, 301 (6th Cir. 1984).
covered by Eleventh Amendment immunity, or whether, to
the contrary, the JRS is better deemed a political subdivision,
akin to a municipality.
State law is crucial to the analysis, because state law
defines the nature of agencies. In Mount Healthy City School
District Board of Education v. Doyle, the Supreme Court
made clear that state law plays a role in determining whether
an agency is more akin to a municipality or to an arm of the
state:
The issue here thus turns on whether the Mt. Healthy
Board of Education is to be treated as an arm of the State
partaking of the State’s Eleventh Amendment immunity,
or is instead to be treated as a municipal corporation or
other political subdivision to which the Eleventh
Amendment does not extend. The answer depends, at
least in part, upon the nature of the entity created by state
law.
429 U.S. 274, 280 (1977), superseded on other grounds by
statute, by 5 U.S.C. § 1221(e)(2). In accordance with this
principle, in Blake v. Kline, 612 F.2d 718 (3d Cir. 1979), state
law was vital to the analysis of a state treasury’s potential
legal liability. The Third Circuit stated that once
Pennsylvania made a contribution to a retirement plan, the
funds contributed might no longer be general state funds,
under Pennsylvania law. Id. at 724, 728 (remanding for
further inquiry into state law).
12 Ernst, et al. v. Roberts, et al. No. 02-2287
Citing Blake, this Court determined that Eleventh
Amendment immunity barred suit against the Medical
College of Ohio at Toledo (“MCO”), in part due to the
definition of this entity under state law; in explaining the
decision, this Court explicitly emphasized the importance of
state law, which can be controlling, in Eleventh Amendment
analysis:
Although we can find no reported decision, federal or
state, dealing specifically with the status of MCO, it is
highly significant that the statute which created and
governs the University of Cincinnati as a state university
is virtually identical in its terms to the statute which
created and governs the Medical College of Ohio. See
Ohio Rev. Code Ann. §§ 3361.01-.05 (Page 1980). It
would therefore appear that Ohio considers MCO an
“arm of the state,” and not merely a political subdivision
thereof. The question of its status for purposes of the
Eleventh Amendment is, of course, a matter of federal,
not state, law, but Ohio decisions and laws shedding light
on the relationship of the school to the state government
are important, and potentially controlling. See Blake v.
Kline, 612 F.2d at 722, see also Hughes-Bechtol, Inc. v.
West Virginia Board of Regents, 737 F.2d 540, slip at 5
(6th Cir. 1984); Long v. Richardson, 525 F.2d at 75, 79.
Hall, 742 F.2d at 303-04. The law of this Circuit is so clear
in emphasizing the importance of state law in questions of
Eleventh Amendment immunity that another circuit has cited
our Circuit on this issue. Jacintoport Corp. v. Greater Baton
Rouge Port Comm’n, 762 F.2d 435, 439 (5th Cir. 1985) (“the
. . . Sixth Circuit[] ha[s] held that although the question of
Eleventh Amendment immunity is a matter of federal law,
state decisions concerning the relationship of the entity to the
state may be an important, and under certain circumstances a
controlling factor in determining immunity under the
Eleventh Amendment.”) (citing Hall, 742 F.2d at 302;
internal quotation marks omitted).

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No. 02-2287 Ernst, et al. v. Roberts, et al. 13
The dissent misconstrues the law, here, by failing to
recognize the significant role that state law plays in the
analysis. The dissent states, “If the state treasury is immune
from liability . . . , it is because of the Eleventh Amendment
and not Article IX, § 24 of the Michigan Constitution or the
Musselman decision.” Apparently, in the dissent’s view, the
Eleventh Amendment provides this Court the basis for
determining whether a non-federal public agency is akin to an
arm of a state or is akin to a municipality. The dissent would
have us consult the Eleventh Amendment to determine
whether or not the Michigan state treasury could potentially
be held liable for a judgment against the JRS. This reasoning
overlooks this Court’s pronouncement that in employing
Eleventh Amendment analysis to determine whether an entity
is akin to an arm of the state or is akin to a municipality, state
statutes and state court decisions “are important, and
potentially controlling.” Hall, 742 F.2d at 303-04.
The general question of how to characterize a non-federal
public entity has not been left to federal courts’ whim or
intuition. Rather, under established case law, in Eleventh
Amendment analysis, the question of whether a public entity
is best characterized as an arm or alter ego of the state, instead
of being deemed a political subdivision of the state, hinges on
whether there is potential legal liability of the state treasury
to satisfy a judgment. If a claim against a public agency
exposes the state treasury to potential legal liability, then
Eleventh Amendment immunity bars the claim from being
heard in federal court; if there is no such potential liability,
then there is no immunity. Regents of the Univ. of Cal. v.
Doe, 519 U.S. 425, 431 (1997) (“[I]t is the [state] entity’s
potential legal liability for judgments, rather than its ability or
inability to require a third party to reimburse it, or to
discharge the liability in the first instance, that is relevant in
determining the underlying Eleventh Amendment question.”);
Dubuc v. Mich. Bd. of Law Exam’rs, 342 F.3d 610, 615 (6th
Cir. 2003) (“To determine whether an entity is a state
department or agency for purposes of the Eleventh
Amendment, the primary issue is whether the state would
14 Ernst, et al. v. Roberts, et al. No. 02-2287
ultimately be liable for any money judgment against the
entity. Brotherton v. Cleveland, 173 F.3d 552, 560-61 (6th
Cir. 1999).”); Brotherton v. Cleveland, 173 F.3d 552, 561
(6th Cir. 1999) (“The Hess [v. Port Auth. Trans-Hudson
Corp., 513 U.S. 30 (1994)] opinion focused on the impact on
a State treasury, and [Regents of the University of California
v.] Doe slightly altered that emphasis by establishing that
potential liability, not actual ability to pay or indemnification,
determines the Eleventh Amendment status of an entity. See
Doe, 117 S. Ct. at 904-05.”). See also Alkire v. Irving, 330
F.3d 802, 812 (6th Cir. 2003) (“Hess’s emphasis on the State
treasury”).
Prior to Hess v. Port Authority Trans-Hudson Corp., 513
U.S. 30, 51 (1994), potential state treasury liability was only
one of a number of factors in the Eleventh Amendment
analysis. The other factors included the entity’s status under
state law; whether the entity performs a governmental or
proprietary function; whether the entity has been separately
incorporated; the degree of autonomy that the entity exercises
over its own operations; whether the entity can sue or be sued
and enter into contracts; immunity from state taxation; and
whether the sovereign has immunized itself from
responsibility for the entity’s operations. Hall, 742 F.2d at
302 (quoting Blake v. Kline).
But Hess enhanced the importance of state treasury
liability, to the extent that, after Hess, the possibility arose
that other factors (aside from state treasury liability) can no
longer be considered at all. In Brotherton v. Cleveland, we
were able to reach a ruling without determining whether Hess
had eliminated any consideration of the other factors, and we
explicitly left this question unresolved. 173 F.3d at 561
(“Whether we view as dispositive Hess's emphasis on the
State treasury, or interpret it as placing significant weight on
one factor of a multi-factor test, we conclude that EBAA may
not properly invoke the Eleventh Amendment.”) (citation
omitted).

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No. 02-2287 Ernst, et al. v. Roberts, et al. 15
In Dubuc, we dealt with the question of whether the other
factors (aside from state treasury liability) survived Hess in
any form. We ruled that when no evidence is presented
regarding the issue of whether the funds to satisfy a judgment
would come from the state treasury, the other factors may be
considered. 342 F.3d at 615 (“The parties have not submitted
any evidence regarding whether the State of Michigan would
be ultimately responsible for any money judgment against the
Board or the Bar. The other factors, however, weigh in favor
of finding the Board and the Bar immune from this lawsuit.”).
However, in Dubuc and in Alkire v. Irving, 330 F.3d 802 (6th
Cir. 2003), we reiterated our statement from Brotherton that,
after Hess, it is unclear whether other factors may even be
considered when evidence is presented regarding the whether
the state treasury would be liable for a judgment. Dubuc, 342
F.3d at 615 (citing Brotherton); Alkire, 330 F.3d at 811-12
(citing Brotherton).
Our cases uniformly make clear that, even if the other
factors can be considered, still, the most significant factor is
potential liability of the state treasury. Alkire, 330 F.3d at 811
(“we now recognize that the question of who pays a damage
judgment against an entity as the most important factor in
arm-of-the-state analysis, though it is unclear whether it is the
only factor or merely the principal one.”) (citing Brotherton).
In light of the statements in Brotherton, Alkire, and Dubuc,
indicating that Hess may have completely eliminated any
consideration of the other factors, we reiterate the position
taken in those cases: potential liability of the state treasury is
the most important factor, and the other factors may have
been rendered completely obsolete by Hess. This could mean
that the other factors are of no significance, unless (as in
Dubuc) there is not sufficient evidence or legal authority to
support a conclusion as to state treasury liability. Arguably,
there is also the possibility that other factors could also prove
significant in cases in which there is sufficient evidence and
legal authority to support a conclusion as to potential state
treasury liability, but all or almost all of the other factors were
16 Ernst, et al. v. Roberts, et al. No. 02-2287
11The dissent reaches a different conclusion from ours, as to potential
state treasury liability, but there is no dispute that we have sufficient
evidence and legal autho rity to decide the issue. Cf. Dubuc, 342 F.3d at
615.
12According to BLACK’S LA W DICTIONARY (7th ed. 1999 ), a
“governmental function” is the legally authorized cond uct of a
government agenc y “that is carried out for the b enefit of the general
public.” Id. at 704. A “proprietary function” is “[a] m unicipality’s
conduct that is performed for the profit or benefit of the municipality
rather than for the benefit of the general public.” Id. at 1235.
to clearly point towards the opposite conclusion of that
reached as to state treasury liability. For example, in cases in
which it appeared that there were no potential state treasury
liability, but all or almost all of the other factors clearly
indicated that the agency was akin to an arm of the state,
perhaps immunity would apply.
But we need not determine which interpretation of the role
of the other factors is correct, because in the present case it is
undisputed that there is sufficient evidence and legal authority
to support a conclusion as to state treasury liability,11 and the
other factors do not align together to counter the state treasury
liability analysis. Quite a few of the other factors (apart from
potential liability of the state treasury) support the view that
the JRS is akin to a municipality. The JRS’s function is more
aptly characterized as proprietary than as governmental,
because the JRS’s function is for the profit or material benefit
of itself (and its beneficiaries), and not the general public.12
The JRS enjoys a fair degree of autonomy. E.g., MICH.
COMP. LAWS § 38.2204(1) (“The retirement board has the
rights, authority, and discretion in the proper discharge of
retirement board duties pursuant to the executive organization
act of 1965, Act No. 380 of the Public Acts of 1965, being
sections 16.101 to 16.608 of the Michigan Compiled Laws.”).
It is undisputed that the JRS can sue and be sued in state

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No. 02-2287 Ernst, et al. v. Roberts, et al. 17
13In a state court action alleging discrimination on much the same
basis that discrimination is alleged in the present action, the JRS was
named as the defendant. The matter was contested on the merits. It was
undisp uted that the JR S could be sued in state court. (J.A. at 312 .)
The dissent somehow misses this point, stating, in its footnote 16,
“This leads to a curious result: although the state canno t be sued in state
court because it has exercised its sovereign immunity, it can be sued in
federal court because it cannot be sued in state court.” The dissent
conflates the JR S with the state. It is undisputed that the JRS can be sued
in state co urt.
14MICH . CO M P. LA W S § 38.2205 (“The department shall be
respo nsible for the budgeting, procurement, and related management
functions of the retirement system. The director of the bureau of
retirement systems in the dep artment is the executive secretary of the
retirement system. The executive secretary, with dep artment approval,
shall employ the services of an actuary and, subject to rules of the civil
service commission, shall em ploy m edica l advisers, clerical, technica l,
and administrative employees the executive secretary considers necessary
for the proper operation of the retirement system.”); (J.A. 316) (JRS
budget).
15The payments for these services are substantial. See infra note 17.
court.13 The JRS can enter into contracts: the JRS has the
statutory authority to enter into contracts with private
individuals or corporations; this authority has been exercised,
e.g., to retain actuarial services;14 also, the JRS enters into
contracts with the state, from whom the JRS leases office
space and purchases legal, administrative, and investment
services.15
To be sure, certain of the remaining factors favor the view
of the JRS as an arm of the state; for example, it is undisputed
that the JRS is not separately incorporated. But we express
no definitive view as to the remaining other factors, because,
even if they all weighed in favor of Defendants’ position, they
would not be sufficient to change the analysis. In light of the
numerous factors enumerated above, which indicate that the
JRS is akin to a municipality, and in light of our analysis of
potential state treasury liability below, reaching the same
18 Ernst, et al. v. Roberts, et al. No. 02-2287
conclusion, the other remaining factors could not possibly
sway our conclusion that there is no Eleventh Amendment
immunity.
Thus, we proceed to the analysis of the key factor, potential
legal liability of the state treasury for a judgement.
Theoretically, there are two ways in which potential legal
liability for a judgment against the JRS might reach state
treasury funds. First, JRS funds might be commingled with
general state funds–which is to say that JRS funds might be
available for general use by the state for other purposes,
unrelated to the retirement system. If funds are commingled,
then any JRS liability would be tantamount to state treasury
liability. Secondly, even if JRS funds are segregated from
state treasury funds, the JRS might not have sufficient funds
to satisfy a judgment; applicable state law could make state
treasury funds available to satisfy the part of the judgment
that exceeded the amount of funds available to the JRS. We
examine both possibilities.
A. Whether JRS Funds Are Segregated from State
Treasury Funds
The first question is whether JRS funds are commingled
with general state funds. If the JRS’s funds are not separate
from the state treasury, then any judgment against the JRS
would necessarily impose liability on the state treasury.
Defendants argue that Michigan law makes retirement
funds general state funds. Defendants cite the Michigan
Constitution, Art. IX, § 19, which specifies, “The state shall
not subscribe to, nor be interested in the stock of any
company, association or corporation, except as follows:
(A) Funds accumulated to provide retirement or pension
benefits for public officials and employees may be invested
as provided by law.” Defendants argue, “If the retirement
funds were not considered State funds, there would be no
need for the framers to carve out this exception.”
(Defendants’ Br. at 20 n.9.) However, this argument is one of

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No. 02-2287 Ernst, et al. v. Roberts, et al. 19
semantics. The use of the term “state” in Art. IX, § 19 of the
Michigan Constitution does not establish that JRS funds are
state funds, under Eleventh Amendment analysis. Eleventh
Amendment analysis hinges upon potential state treasury
liability–Defendants’ argument here does not bear on this
issue.
Other sources of law make clear that JRS funds are
segregated from the state treasury. This means that relief for
Plaintiffs’ claims would not come from general state funds
but, rather, from the trust devoted solely to the JRS. As stated
in MICH. COMP. LAWS § 38.2604(6):
The assets of the retirement system shall be held in trust
and invested for the sole purpose of meeting the
legitimate obligations of the retirement system and shall
not be used for any other purpose. The assets shall not
be used for or diverted to a purpose other than for the
exclusive benefit of the members, vested former
members, retirants, and retirement allowance
beneficiaries before satisfaction of all retirement system
liabilities.
See also MICH. COMP. LAWS § 38.2208 (stating that
retirement payments are “payable out of funds of the
retirement system”).
It is true that some of the funds in the JRS are contributed
by the state. Part of the JRS comes from contributions from
the public employees themselves (such as Plaintiffs). As
Plaintiffs state, “Any judgment for Plaintiffs . . . might require
a refund to Plaintiffs of contributions illegally extracted from
them . . . .” (Plaintiffs’ Br. at 23.) The remainder of the JRS
comes from annual state contributions, under MICH. COMP.
LAWS § 38.2302. See Ernst v. Roberts, 225 F. Supp. 2d at
789 (“Part of the relief plaintiffs are seeking in this case is a
refund of the allegedly overfunded Tier 1 plan which, they
concede, includes ‘the State’s mandatory contribution to the
Tier 1 Plan.’”) (emphasis added).
20 Ernst, et al. v. Roberts, et al. No. 02-2287
16In Blake, the Pennsylvania Attorney General advanced the notion
that under Pennsylvania law the retirement funds become segregated. 612
F.2d at 724. The Pennsylvania Attorney G eneral did no t cite any state
law supporting this view, and thus further inquiry was needed.
Consequently, the case was rem anded to the district court, with the Third
Circuit vacating district co urt’s order dismissing the complaint as barred
by the E leventh Amendment. Id. at 728.
17In 2000, the JRS paid to the state $1211 in building rentals; $8096
in technological support; $38,224 in fees to the Attorney General; and
$65,000 for investment services. In 1999, the corresponding figures were
$11 83, $ 16,3 79, $ 377 6, and $63 ,600 , respectively. (J.A . at 307 .)
However, the dissent mischaracterizes the significance of
the state contributions to the JRS, under MICH. COMP. LAWS
§ 38.2302. The presence of funds contributed by the state is
simply the scenario described in Blake–after the state funds
are contributed to the retirement plan, “that money loses its
identity as [general state] funds and becomes trusteed funds
earmarked for a particular purpose.” 612 F.2d at 724. State
law specifies with clarity16 that JRS funds are kept in a
separate trust from general state funds; thus, funds taken from
the JRS to satisfy a judgment would not be funds from the
state treasury. In other words, once general state funds (from
the state treasury) are contributed to the JRS, the funds
become specifically earmarked for JRS use and cannot be
used for any other purpose; JRS funds cease to constitute
general state funds. MICH. COMP. LAWS § 38.2604(6).
Hence, a judgment against the JRS does not impose liability
on the state treasury.
Indeed, not only is state law clear on this matter; also, the
record before us helps to confirm our conclusion. The JRS
makes arms length payments to the state, for office rental
space and services rendered.17 The existence of these
payments from the JRS to the state again suggests that the
funds of these two entities were not commingled; the detailed
accounting of the payments further supports the notion that
funds were not commingled.

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No. 02-2287 Ernst, et al. v. Roberts, et al. 21
B. Whether State Treasury Funds Might Be Called
Upon, if the JRS Lacked Sufficient Funds to Satisfy
a Judgment
Even where, as here, the agency’s funds are segregated
from the state treasury, there remains the possibility that a
monetary judgment would exceed the current amount of funds
held by the agency and that such a judgment could reach the
state treasury. We must determine whether, under state law,
if there were a judgment against the JRS that exceeded the
JRS’s current level of funds, the State of Michigan could
possibly be compelled to use state treasury funds to satisfy the
remainder of the judgment.
In determining “potential legal liability,” we do not
consider the actual level of funding of the JRS. It is irrelevant
whether the JRS actually has enough funds to satisfy the
amount sought in any judgment. Brotherton, 173 F.3d at 561
(“The Hess opinion focused on the impact on a State treasury,
and [Regents of the University of California v.] Doe slightly
altered that emphasis by establishing that potential liability,
not actual ability to pay or indemnification, determines the
Eleventh Amendment status of an entity. See Doe, 117 S. Ct.
at 904-05.”) (emphasis added). Rather, the relevant question
is whether the state could be legally obligated to pay part of
a judgment, under the hypothetical scenario in which the
funds of the separate agency (in this case, the JRS) were not
sufficient to satisfy the judgment. For the purposes of this
hypothetical inquiry, we must assume that the amount of
liability imposed by a judgment would exceed the agency’s
current level of funds; we then ask whether the state treasury
could be held liable for the remainder of the judgment. If,
under our hypothetical inquiry, the state treasury could be
liable for a judgment on a claim, then that claim is barred by
Eleventh Amendment immunity–there is potential legal
liability, notwithstanding that the probability of the state
22 Ernst, et al. v. Roberts, et al. No. 02-2287
18It is not clear whether a court may ever separate a claim into the
portion that could be satisfied by segregated agency funds and the excess
portion that might reach the state treasury–essentially, Plaintiffs have
suggested such a scenario, through an offered stipulation. Whether a
plaintiff can separate a claim in this manner is a question that we need not
decide in this case.
19“Liability” is universally defined to include a mechanism to
com pel enforcement. See, e.g., BLACK’S LA W DICTIONARY 925 (7th ed.
1999) (“liability” is “[t]he quality or state of being legally obligated or
accountable; legal responsibility to another or to society, enforceable by
civil remedy or criminal punishment.”); W EBSTER’S TH IR D NEW
INTERNATIONAL DIC T IO N A R Y 1302 (1993) (defining “liability,” inter alia,
as “accountability and responsibility to another enforc eable by legal civil
or criminal sanctions”).
treasury being forced to actually pay part of a judgment may
be quite low.18
Defendants allege that a legal obligation, creating state
treasury liability, arises from Art. IX, § 24 of the Michigan
Constitution, which states:
The accrued financial benefits of each pension plan and
retirement system of the state and its political
subdivisions shall be a contractual obligation thereof
which shall not be diminished or impaired thereby.
Financial benefits arising on account of service rendered
in each fiscal year shall be funded during that year and
such funding shall not be used for financing unfunded
accrued liabilities.
Yet there is no potential legal liability of the state treasury
if there cannot be a legal action to compel the state to divert
funds from the state treasury to satisfy a judgment that
exceeds the JRS’s funds. Legal liability exists only when
some legal action can be brought to enforce a legal duty.19
The case of Musselman v. Governor of Michigan, 533
N.W.2d 237, 448 Mich. 503 (1995) establishes that Art. IX,
§ 24 does not create any right of action that could force state

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No. 02-2287 Ernst, et al. v. Roberts, et al. 23
treasury funds to be used to pay any part of a judgment
against the JRS. In Musselman, the Michigan legislature did
not appropriate money for health benefits earned by current
employees. 533 N.W.2d at 239-40, 448 Mich. at 507-08.
The plaintiffs alleged that the legislature’s action violated Art.
IX, § 24. 533 N.W.2d at 240, 448 Mich. at 509-10. Yet, in
denying mandamus, the Supreme Court of Michigan
explained that there could be no legal action to enforce the
“shall be funded” provision of Art. IX, § 24:
Given that the plaintiffs have failed to show that there is
a pool of funds available to be transferred to the reserve
for health benefits, the requested relief necessarily
involves funds from the state treasury. The only
defendant with authority to appropriate funds from the
treasury is the Legislature. See Board of Education of
the City of Detroit v. Elliott, 319 Mich. 436, 453; 29
N.W.2d 902 (1947). “No money shall be paid out of the
state treasury except in pursuance of appropriations made
by law.” Const. 1963, art. 9, § 17.
In this context, this Court lacks the power to require the
Legislature to appropriate funds. This was the
understanding of the drafters of art. 9, § 24, who likewise
did not contemplate that the prefunding requirement
could be enforced by a court. They expected that the
decision to comply rested ultimately with the Legislature,
whom the people would have to trust:
It is the intention that we will put in each year
enough in every fund to take care of the liability
occurring during that year, so it will not go farther
and farther behind.
. . . [But] there is no way to compel the legislature to
appropriate money. There is no way that I know of
to compel a city council to raise more money. We
have to put some faith in somebody, and this is
being put in the legislature. [1 Official Record,
24 Ernst, et al. v. Roberts, et al. No. 02-2287
Constitutional Convention of 1961, p. 773 (delegate
Brake).]
In other words, insofar as the plaintiffs are asking us to
require the Legislature to appropriate funds for
retirement health care benefits, we understand that the
intention of the drafters was that the second sentence of
Const. 1963, art. 9, § 24 is not self-executing. Because
the provision does not alter the rule that legislative action
is necessary to appropriate funds, it fails to lay down
rules by means of which its principles may be given the
force of law.
533 N.W.2d at 245-46, 448 Mich. at 522-23 (footnotes and
internal quotation marks and brackets omitted).
The Supreme Court of Michigan explained that the purpose
of Art. IX, § 24 was to prevent the legislature from borrowing
from the accrued assets of plan participants. 533 N.W.2d at
241-42, 448 Mich. at 511-12. Such borrowing, or “back
door” spending, as it was called, could create situations in
which the liabilities of a public retirement system far
surpassed the system’s assets. Id. Yet even where this
purpose was being circumvented–as in Musselman, where
current health care benefits were not being funded–the
legislature could not be legally compelled to devote state
treasury funds to fund the benefits. 533 N.W.2d at 242, 448
Mich. at 522 (“the drafters of art 9, § 24 . . . did not
contemplate that the prefunding requirement could be
enforced by a court.”). The state treasury cannot be held
legally liable, even where the very purpose of Art. IX, § 24 is
at stake.
Under Musselman, a legal action cannot be maintained in
state court, in Michigan, to compel the state to devote state
treasury funds to fulfill the mandate of Art. IX, § 24. Nor
could Art. IX, § 24 provide the basis for any subsequent legal
action in federal court to compel state treasury funds to be
devoted to fulfilling a judgment in a lawsuit. As stated in

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No. 02-2287 Ernst, et al. v. Roberts, et al. 25
20The liability analysis regarding the JRS would no t apply to the state
legislature.
The JRS is a state-created p ublic agency that performs a function
within the narrow area of retirement benefits. Thus, potential legal
liability analysis applies to determine whether the JRS is more akin to a
municipality than an arm or alter ego of the state. But this analysis only
applies to specialized state entities, such as agencies that perform
administrative functions within narrow areas.
The state legislature is not specialized in one particular area but a
constitutionally authorized branch of state government. M IC H . CONST .
art. IV, § 1. The state legislature is by definition an arm of the state, not
an agency. Of course, this distinction is ultimately moot. E ven if,
arguendo, the state legislature were subject to po tential liability analysis,
immunity would apply. A federal monetary judgment for a claim against
the state legislature would be interpreted as attempting to compel the
legislature to use its authority to appropriate state treasury funds to satisfy
the judgment. The claim would thus be barred by the Eleventh
Amendment, under potential legal liability analysis.
Musselman, “[t]he only defendant with authority to
appropriate funds from the treasury is the Legislature.” 533
N.W.2d at 245-46, 448 Mich. at 522. Needless to say, where
there cannot be a legal action to enforce the Michigan
Constitution against the state treasury, there could be no
action to enforce a state statute, such as MICH. COMP. LAWS
§ 38.2302, against the treasury. The Eleventh Amendment
bars any action against the state legislature, which, unlike the
JRS, could never be considered a political subdivision akin to
a municipality but, rather, would always be identified as a
branch of the state itself.20 There can be no action in any
court to force the state treasury to pay any part of a judgment
relating to a federal claim in a lawsuit concerning the
JRS–thus, the state treasury is not subject to potential legal
liability. Even if the JRS lacked sufficient funds to satisfy a
judgment in this case, the state treasury could not be held
liable for any unpaid portion of the judgment.
26 Ernst, et al. v. Roberts, et al. No. 02-2287
21As stated in a scholarly commentary:
The scope of a cause of action . . . flows from the primary right
theory that every judicial action consists of the following
elements: (1) a p rimary right which is possessed by the plaintiff
and a correspo nding prima ry duty owed by the defendant; (2) a
wrong done by the defendant which consists of a breach of the
primary right and duty; (3) remedial right of the plaintiff and a
remedial duty of the d efendant; (4) a remedy or relief.
Elizabeth L. Hisserich, C omm ent, The C ollision of Declaratory
Jud gm ents and Res Judicata, 48 UCLA L. REV. 159, 165-66 (2000)
(footnotes omitted ). See also Dorothy M . Rob ins, Comment, When the
Gleam in Your Eye Becomes A G lare: C app ed D am age s in Fertility
Malpractice Actions, 26 U.S.F. L. REV. 717, 751 n.66 (19 92) (“Every
judicial action must . . . involve the following elements: a primary right
possessed by the pla intiff, and a corresponding primary duty devolving
upon the defendant; a delict or wro ng do ne by the defendant which
consisted in a breach of such prima ry right and duty; a remed ial right in
favor of the plaintiff, and a remedial duty resting on the defendant
springing from this delict, and finally the remedy or relief itself.”)
(citations omitted).
22An injunction wo uld enforce Art. IX, § 24’s provision that
“[f]inancial benefits arising on account of service rendered in each fiscal
year shall be funded during that year and such funding shall not be used
for financing unfunded acc rued liabilities.”
In a legal action, rights and remedies are separate
elements.21 “[W]here there is a legal right, there is also a
legal remedy by suit or action at law, whenever that right is
invaded.” Marbury v. Madison, 5 U.S. 137, 163 (1803)
(quoting BLACKSTONE’S COMMENTARIES). However, the
scope of remedies for a legal right is not unlimited.
Musselman did not rule out the possibility of injunctive relief
to enforce Art. IX, § 24. For instance, if the state attempted
to divert JRS funds to finance state liabilities unrelated to the
JRS, then presumably Art. IX, § 24 would provide grounds
for injunctive relief, independent of any rights established in
MICH. COMP. LAWS § 38.2604(6).22 Musselman simply made
clear that there can be no monetary relief from the state

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No. 02-2287 Ernst, et al. v. Roberts, et al. 27
23At the time that Bivens was decided, 42 U.S.C. § 1983 had already
established that state officials may be held liable for damages for
violations of the federal constitution. But this statute did not provide a
basis for establishing the liability of federal officials for violations of the
federal constitution. Bivens, 403 U.S. at 399 n.1 (Harlan, J., concurring).
24Edelman v. Jordan, 415 U.S. 651 (1974); Fitzpatrick v. Bitzer, 519
F.2d 559 (2d Cir. 19 75), rev’d on other grounds, 427 U.S. 445 (1976).
treasury; the case did not rule out the possibility of a non-
monetary remedy.
Absent the Musselman case, it might have been argued that
the state treasury could have been held liable pursuant to Art.
IX, § 24. Governmental actors have been held liable for
damages based on rights granted in a constitution, even where
no statute explicitly authorizes such damages. See Bivens v.
Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971) (establishing monetary liability of federal
officials for violations of the Fourth Amendment23). Thus,
absent a clear statement of law to the contrary, we would have
to hold that Art. IX, § 24 creates potential state treasury
liability. But Musselman clearly holds that there is no
potential state treasury liability. Consequently, none of the
claims are barred by Eleventh Amendment immunity.
The dissent’s counter-arguments prove unpersuasive. The
dissent states that “any funding requirement, even if it must
be honored by the legislature and not ordered by a court, will
necessarily impact on the state treasury.” However, an
“impact” on the state treasury–resulting from the legislature’s
voluntary decision to appropriate funds to make up for a
possible depletion in an agency’s funds–is not akin to
“liability.” The cases cited by the dissent in support of its
proposition24 pre-date the Supreme Court’s adoption of the
term “potential legal liability” in Doe, which was decided in
1997. 519 U.S. at 431. The term “liability” has a precise
meaning (discussed above). We have no reason to believe
that the Supreme Court used this term heedlessly. As a result
28 Ernst, et al. v. Roberts, et al. No. 02-2287
of the Supreme Court’s holding in Doe, this Court has
repeatedly referred to the term “liability” in characterizing the
legal standard that governs immunity analysis. Dubuc, 342
F.3d at 615 (“To determine whether an entity is a state
department or agency for purposes of the Eleventh
Amendment, the primary issue is whether the state would
ultimately be liable for any money judgment against the
entity.”) (citing Brotherton); Brotherton, 173 F.3d at 561
(“The Hess opinion focused on the impact on a State
treasury, and Doe slightly altered that emphasis by
establishing that potential liability, not actual ability to pay or
indemnification, determines the Eleventh Amendment status
of an entity.”) (citing Doe).
The dissent states that the majority’s “reasoning is faulty
because a state’s exercise of state sovereign immunity does
not control the question of federal constitutional immunity.”
Indeed, the dissent repeatedly characterizes Michigan as
exercising “state sovereign immunity.” However, the dissent
is mistaken, here. The state has not immunized the JRS from
suit in state court; to the contrary, the JRS has been named as
the defendant in an action in state court that was adjudicated
on the merits. See supra note 13. Nor does it appear that
there would be state court immunity for any of the state
officials who are named as Defendants in this case. See
Marrical v. Detroit News, Inc., 805 F.2d 169, 173 (6th Cir.
1986) (“We initially note that the Michigan legislature, when
it enacted its governmental immunity statute, declined to
extend immunity to governmental officials and contemplated
that they would be subject to suit for torts committed in the
course of their duties.”).
The Musselman case had nothing to do with state court
immunity. Immunity is a defense, where a suit could
otherwise be brought (absent the immunity). E.g., Cartwright
v. City of Marine City, 336 F.3d 487, 490 (6th Cir. 2003)
(“Qualified immunity is an affirmative defense shielding
governmental officials from liability as long as their conduct
does not violate clearly established statutory or constitutional

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No. 02-2287 Ernst, et al. v. Roberts, et al. 29
rights of which a reasonable person would have known.”)
(citation and internal quotation marks omitted); see also supra
note 7. Musselman held that there never had been any
mechanism for bringing a suit in state court to enforce Art.
IX, § 24 against the state treasury. Thus, under Musselman’s
holding, it would be superfluous, even meaningless, to speak
of immunizing the state treasury from suit in state court to
enforce Art. IX, § 24. Immunity applies as a defense only
where, contrary to the situation here, there is an existing
means for bringing a suit.
Nothing in our ruling would prevent a state from exercising
state sovereign immunity for its agencies. The state could
prohibit suit in state court against any of its agencies. Where
a judgment against an agency would potentially impose
liability on the state treasury, the agency would be immune
from suit in federal court; the agency could also be immune
from suit in state court. Where a judgment against an agency
could not potentially impose liability on the state treasury, the
agency could be immune from suit in state court but not in
federal court. Our ruling in no way impedes states from
implementing state court immunity for agencies.
The dissent quotes from Dubuc, 342 F.3d at 617, which
states, “[w]hile [a provision of the Michigan Supreme Court
Rules Concerning the State Bar of Michigan providing the
staff of the State Bar and the Board of Law Examiners] may
immunize the individual defendants from state law claims, no
state law or rule can immunize anyone from liability for
violating the United States Constitution.” The dissent
selectively ignores the phrase “individual defendants.” In
Dubuc, this Court simply made clear that a state cannot
invoke federal immunity for individual state officials who
violate the federal constitution, because the act of violating
the constitution strips the individuals of their status as state
officials:
In Ex parte Young, the Supreme Court explained the
supremacy of federal law over state law:
30 Ernst, et al. v. Roberts, et al. No. 02-2287
If the act which the state attorney general seeks to
enforce be a violation of the Federal Constitution,
the officer, in proceeding under such enactment,
comes into conflict with the superior authority of
that Constitution, and he is in that case stripped of
his official or representative character and is
subjected in his person to the consequences of his
individual conduct. The state has no power to
impart to him any immunity from responsibility to
the supreme authority of the United States.
209 U.S. 123, 159-60, 52 L. Ed. 714, 28 S. Ct. 441
(1908).
Dubuc, 342 F.3d at 617. This reasoning is inapposite here,
because the state treasury would not be stripped of its public
character, if a judgment rendered the JRS liable for violations
of the federal constitution. The phrase “individual
defendants” is not used carelessly in the passage quoted by
the dissent. The state treasurer would liable for a judgment in
this case, but (per Musselman) only insofar as he could satisfy
that judgment with funds from the JRS. The Eleventh
Amendment is necessary to protect the state treasury precisely
because, unlike an individual defendant, the state treasury
cannot possibly be stripped of its identity as part of the state.
Under the dissent’s misreading of Dubuc, municipalities
would enjoy sovereign immunity: state laws and rules create
and define municipalities, but “no state law or rule can
immunize anyone from liability for violating the United
States Constitution.” In essence, the dissent would attempt to
contradict the Supreme Court’s clear ruling that
municipalities are not entitled to sovereign immunity, Monell
v. Department of Social Services, 436 U.S. 658, 691 (1978),
and the Supreme Court’s clear ruling that non-federal public
agencies are not entitled to immunity if they are akin to
municipalities. Mt. Healthy City Sch. Dist. Bd. of Educ., 429
U.S. at 280 (“The issue here thus turns on whether the Mt.
Healthy Board of Education is to be treated as an arm of the

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No. 02-2287 Ernst, et al. v. Roberts, et al. 31
State partaking of the State’s Eleventh Amendment immunity,
or is instead to be treated as a municipal corporation or other
political subdivision to which the Eleventh Amendment does
not extend.”).
The dissent misconstrues our ruling as determining that
there has been a waiver of Eleventh Amendment immunity:
“The majority’s unique use of state sovereign immunity
doctrine as some kind of implied waiver of constitutional
immunity constitutes an impermissible end run around the
well-established principles of the Eleventh Amendment.” Yet
there is no “implied waiver” here. For something to be
waived, it must initially have been applicable (prior to the
waiver). The majority holds that the JRS never enjoyed
immunity, because the JRS is akin to a municipality. The
state cannot waive immunity that the JRS never had.
The state does not “waive” immunity by establishing a
municipality or a municipality-like agency, in this or any
other instance. Municipalities and municipality-like entities
never enjoy immunity; these entities are created by state law,
but there is no immunity to “waive” for these entities. Under
the dissent’s bizarre, erroneous use of the term “waive,” a
state would “waive” its immunity for a city, through the
state’s act of first establishing the city. The dissent’s
misunderstanding of the law stems from its unwillingness to
accept that state law is a crucial part of defining the nature of
a non-federal public entity in Eleventh Amendment analysis.
Mt. Healthy City Sch. Dist. Bd. of Educ., 429 U.S. at 280;
Hall, 742 F.2d at 303-04; Jacintoport Corp., 762 F.2d at 439;
Blake, 612 F.2d at 724.
Finally, the dissent argues that an alternative basis for
dismissal exists, because the dissent concludes that Plaintiffs’
claims fail on the merits. The district court never ruled on the
merits, instead dismissing the case for lack of jurisdiction;
thus, ordinarily it would be improper for this Court to issue
the initial ruling on Defendants’ motion for summary
judgment. Moreover, on appeal, neither of the parties has
32 Ernst, et al. v. Roberts, et al. No. 02-2287
raised the issue of the merits of the claims; rather, the parties’
appellate briefs discuss only the issue of jurisdiction.
Because the merits of the claims are not argued on appeal,
Defendants’ motion for summary judgment cannot be
addressed by this Court, in the present appeal proceeding.
E.g., Kocsis v. Multi-Care Mgmt., 97 F.3d 876, 881 (6th Cir.
1996) (“Although plaintiff's notice of appeal indicates that she
is appealing the entire district court judgment, she raises only
the dismissal of her ADA claims in her brief on appeal.
Accordingly, plaintiff has waived all other arguments.”)
(citation omitted). This Court will not rule on the merits at
this stage.
II.
Plaintiffs claim that the district court erred by not
identifying the rule it relied upon in dismissing the case and
in not affording Plaintiffs discovery regarding the Eleventh
Amendment immunity issue. However, here, Plaintiffs fail to
assert an additional meritorious basis for relief.
Neither Defendants’ motion to dismiss nor the district
court’s opinion cited a subsection of FED. R. CIV. P. 12(b).
Plaintiffs claim that Defendants’ motion failed to meet the
pleading standard, under FED. R. CIV. P. 7(b)(1) (requiring
that a motion “shall state with particularity the grounds
therefor”). However, we do not require a citation to a specific
subsection of Rule 12, in asserting Eleventh Amendment
immunity. In fact, although Eleventh Amendment immunity
is a defense to jurisdiction, Defendants and the district court
had good reason to avoid citing FED. R. CIV. P. 12(b)(1)
(subject matter jurisdiction) or 12(b)(2) (personal
jurisdiction): namely, the Supreme Court has dispelled the
notion of this immunity as simply an issue of subject matter
jurisdiction, without classifying this immunity as entirely an
issue of personal jurisdiction. See supra note 4. Defendants
and the district court acted properly when they cited the
Eleventh Amendment itself as the controlling legal

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No. 02-2287 Ernst, et al. v. Roberts, et al. 33
25In civil cases, a district court’s error in form–such as citing the
wrong subsection of a rule of civil procedure, or providing analysis that
fails to discuss certain relevant issues–does not provide grounds for
autom atic reversal or remand. Rather, this Court can affirm a ruling of a
district court for any va lid grounds stated o n the rec ord. City Mgmt. Corp.
v. U.S. Chem. Co., 43 F.3d 244, 251 (6th Cir. 1994) (“we may affirm on
any grounds supported by the record, even though they may be different
from the grounds relied on by the district co urt”) (citations omitted). Cf.
FED. R. CRIM . P. 32(i)(3)(B ) (formerly FED. R. CRIM . P. 32(c)(1)) (in
federal criminal cases, at the sentencing phase, district courts are required
to set out sp ecific findings on contro verted matters); United States v.
Osborne, 291 F.3d 9 08, 911-12 (6 th Cir. 2002) (under FED. R. CRIM . P.
32, a district cou rt’s failure to set forth the appropriate findings on
controverted matters provides grounds for this Court to vacate a sentence
and remand for re-sentencing).
authority–no specific citation to a subsection of Rule 12(b)
was necessary.
Additionally, we note that if, arguendo, it were clear which
subsection of Rule 12(b) were applicable, then this Court
could substitute the proper subsection of Rule 12(b) for an
erroneous or incomplete citation by the district court; this is
assuming that, contrary to our ruling on issue I, above,
Defendants had established Eleventh Amendment
immunity.25
Since there was sufficient evidence on the record for us to
reverse the grant of Eleventh Amendment immunity, we
decline to entertain Plaintiffs’ argument that the district court
erred in failing to grant discovery.
III.
Plaintiffs argue that the district court should be required to
revisit the issue of assuming supplemental jurisdiction over
Plaintiffs’ state law claims if, as we concluded in issue I,
above, Defendants are not entitled to Eleventh Amendment
immunity on all of the claims.
34 Ernst, et al. v. Roberts, et al. No. 02-2287
A district court’s decision to decline supplemental
jurisdiction over state law claims is reviewed for abuse of
discretion. As stated in Musson Theatrical v. Fed. Express
Corp., 89 F.3d 1244, 1254 (6th Cir. 1996),
A district court has broad discretion in deciding whether
to exercise supplemental jurisdiction over state law
claims. Transcontinental Leasing, Inc. v. Michigan Nat'l
Bank of Detroit, 738 F.2d 163, 166 (6th Cir. 1984). That
discretion, however, is bounded by constitutional and
prudential limits on the use of federal judicial power.
Gibbs itself expressed one of the most important of these
limits: “Certainly, if the federal claims are dismissed
before trial, even though [the federal claims are] not
insubstantial in a jurisdictional sense, the state claims
should be dismissed as well.” [United Mine Workers v.]
Gibbs, 383 U.S. [715,] 726 [, 86 S. Ct. 1130, 16 L. Ed.
2d 218 (1966).]
See also Smith v. Dearborn Fin. Servs., Inc., 982 F.2d 976,
983 (6th Cir. 1993) (“because the district court properly
dismissed plaintiff's federal claims for lack of subject matter
jurisdiction, the district court also was within its discretion to
dismiss plaintiff's pendent state law claims without
prejudice.”) (citations omitted).
Under 28 U.S.C. § 1367(c):
The district courts may decline to exercise supplemental
jurisdiction over a claim under subsection (a) if--
(1) the claim raises a novel or complex issue of State
law,
(2) the claim substantially predominates over the claim
or claims over which the district court has original
jurisdiction,
(3) the district court has dismissed all claims over which
it has original jurisdiction, or
(4) in exceptional circumstances, there are other
compelling reasons for declining jurisdiction.

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No. 02-2287 Ernst, et al. v. Roberts, et al. 35
The district court concluded that each of these four
provisions would provide independent grounds for declining
supplemental jurisdiction. Ernst v. Roberts, 225 F. Supp. 2d
at 790. Because Eleventh Amendment immunity does not
apply, the district court erred in stating that § 1367(c)(3)
would provide cause for declining supplemental jurisdiction.
However, Plaintiffs wrongly identify the district court as
relying solely on § 1367(c)(3). Plaintiffs do not challenge the
other three independent reasons for declining supplemental
jurisdiction. A district court has “broad discretion” in
deciding whether to exercise supplemental review. Musson
Theatrical, 89 F.3d at 1254. Plaintiffs fail to establish error
in any of the district court’s three other independent,
unchallenged reasons for declining supplemental jurisdiction.
Therefore there was no abuse of discretion.
Of course, nothing would prevent the district court from
reconsidering its exercise of discretion, on its own volition, in
light of our remand of the federal claims. Under 28 U.S.C.
§ 1367(c), the district court has the option of declining
supplemental jurisdiction if any one of the provisions apply,
but the district court is not bound to decline supplemental
jurisdiction merely because one or more provisions apply. By
declining to instruct the district court to reconsider the issue
of supplemental jurisdiction, in light of our reversal of the
dismissal of all federal claims, we in no way impair the
district court’s discretion to exercise supplemental
jurisdiction, notwithstanding the applicability of other
provisions of 28 U.S.C. § 1367(c). Indep. Enters. v.
Pittsburgh Water & Sewer Auth., 103 F.3d 1165, 1170 n.3 (3d
Cir. 1997) (“The district court, having dismissed the federal
claims, declined to exercise supplemental jurisdiction over
Independent’s state claims and dismissed them without
prejudice. It may reconsider that decision on remand in light
of our disposition of the federal claims.”). We simply refuse
to interfere with the district court’s discretion on this matter,
at a stage in the proceedings when the district court has
already set forth three independent, unchallenged reasons for
declining supplemental jurisdiction.
36 Ernst, et al. v. Roberts, et al. No. 02-2287
CONCLUSION
For the aforementioned reasons, we REVERSE the district
court’s dismissal of each of Plaintiffs’ federal claims, and
REMAND for proceedings not inconsistent with this opinion.

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No. 02-2287 Ernst, et al. v. Roberts, et al. 37
______________
DISSENT
______________
SUHRHEINRICH, Circuit Judge, dissenting. I dissent
because I believe that the Eleventh Amendment bars all of the
claims in this case. Further, the state law claims should have
been dismissed under the doctrine of Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89 (1984). Finally, to the
extent that Plaintiffs have stated a valid federal equal
protection claim for prospective injunctive relief, I would
dismiss that claim because the state law at issue has a rational
basis and is therefore not unconstitutional.
I.
The case before us involves a straightforward application
of Eleventh Amendment principles. In Hans v. Louisiana,
134 U.S. 1 (1890), the Supreme Court held that the Eleventh
Amendment bars suits against a state by its own citizens.
Barton v. Summers, 293 F.3d 944, 948 (6th Cir. 2002). Here,
the state is not a named party; various state officials are the
named defendants. The Eleventh Amendment does not
preclude official capacity suits against state officials for
injunctive relief. Ex parte Young, 209 U.S. 123 (1908).
However, it prohibits a federal court from awarding
retroactive monetary relief against state officials when those
damages will be paid by the state treasury. See, e.g., Edelman
v. Jordan, 415 U.S. 651 (1974); Ford Motor Co. v. Dep’t of
Treasury, 323 U.S. 459 (1945). In Ford Motor Co., the
Supreme Court said: “[W]hen the action is in essence one for
the recovery of money from the state, the state is the real,
substantial party in interest and is entitled to invoke its
sovereign immunity from suit even though individual officials
are nominal defendants.” Ford Motor Co., at 464. In short,
“[a] federal court may order future compliance by state
officials, but it may not compel payment of damages to
38 Ernst, et al. v. Roberts, et al. No. 02-2287
1All of the defendants were sued in the ir official capacities.
compensate for past violations.” Erwin Chemerinsky, Federal
Jurisdiction 425 (4th ed. 2003).
So the central question in this case is whether the state is
the real, substantial party in interest even though the named
defendants are Douglas B. Roberts, Treasurer of the State of
Michigan; Christopher DeRose, Director, Department of
Management and Budget Office of Retirement Systems;
George M. Elworth, Member of the Michigan Judges
Retirement Board (“MJRB”); Roy Pentilla, Member of the
MJRB; Eric E. Doster, Member of the MJRB; Lyle Van
Houten, Member of the MJRB; and Robert Ransom, Member
of the MJRB.1 To rephrase the issue a bit: by providing the
requested relief, would we be ordering prospective injunctive
relief, or monetary damages? And if the latter, where would
the money come from?
II.
To answer these questions, we must examine the nature of
the relief sought, which means examining the complaint.
Precedent directs that “‘[a] federal court must examine each
claim in a case to see if the court’s jurisdiction over that
claim is barred by the Eleventh Amendment.’” Henry v.
Metro. Sewer Dist., 922 F.2d 332, 337 (6th Cir. 1990)
(quoting Pennhurst State School & Hosp. v. Halderman, 465
U.S. 89, 121 (1984)). Counts I, III, V, and VII of the
Complaint are based on the Equal Protection Clause of the
Fourteenth Amendment and are brought pursuant to 42
U.S.C. § 1983. Count I alleges that the Act violates
Plaintiffs’ rights because judges of the 36th District Court are
entitled to retirement allowance under the Tier I Plan which
exceed that to which Plaintiffs and are entitled even though
judges of the 36th District Court contribute a smaller
percentage of their compensation into the Tier 1 Plan for that
greater retirement allowance.

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No. 02-2287 Ernst, et al. v. Roberts, et al. 39
2Paragraphs 1 and 2 request the court to certify the action as a class
action and declare that the Act violates the Fourteenth Amendment and
the State C onstitution. Neither are claims for prospective, injunctive
relief.
Count III alleges that the Act does not provide for annual
percentage increases in the retirement allowance paid under
the Tier 1 Plan although certain of the statutes creating the
retirement plans of other state and governmental employees
provide for an annual percentage increase in the retirement
allowance paid. Count V challenges the constitutionality of
the Act because it prescribes the calculation of the retirement
account value of the judges who transferred from the Tier 1
Plan to the Tier 2 Plan in a disparate manner. Count VII
alleges that the Act violates the constitutional rights of
Plaintiffs because per the terms of the Act judges of the 36th
District Court who elected to transfer from the Tier 1 Plan to
the Tier 2 Plan were able to transfer substantially greater
amounts of money than non-36th District Court judges of the
same age and same length of service because the Act, as
complained of in Count I, afforded 36th District Court judges
a higher allowance under the Tier 1 Plan.
Counts II, IV, VI, and VIII mirror Counts I, III, V, and VII,
but instead of being founded upon the Equal Protection
Clause of the Fourteenth Amendment, are founded upon
Article I, Section 2 of the Michigan Constitution. Counts IX
and X assert state law claims for wasting trust and breach of
fiduciary duty, respectively.
Also critical to the analysis is the relief requested.
Plaintiffs’ prayer for relief reveals that the primary thrust of
the suit is to obtain monetary relief.2 In Paragraph 4,
Plaintiffs ask that Defendants refund to members and
beneficiaries of the Tier 1 Plan “that portion of their past
contributions into the Tier 1 Plan in excess of the past
40 Ernst, et al. v. Roberts, et al. No. 02-2287
3 4. Order that Defendants forthwith refun d to those
Plaintiffs and members o f The C lass who are m embers,
former vested mem bers, re tirants, or retirement
allowance beneficiaries of the Tier 1 Plan, with interest,
that portion of their past contributions into the Tier 1
Plan in excess of the past contributions required of
judges of the 36th District C ourt[.]
4 5. Order Defendants to afford to Plaintiffs and T he Class
members who have remained mem bers of the Tier 1
Plan but have not yet retired a retirement allowance
upon their retirements equal to that to which judges of
the 36th District Court with the same age and length of
service are or will be entitled[.]
5 6. Order Defendants to forthwith make restitution to
Plaintiffs and m emb ers of T he Class who are retira nts
or retirement allowance beneficiaries by paying to
them, with interest, the difference between the dollar
amount of retirement allowance that they have received
and the grea ter amount o f retirement allowance that
they would have received if they had been judges of the
36th District Court[.]
6 7. Order that Defendants forthwith afford to Plaintiffs and
members of The Class who are retirants or retirement
allowance beneficiaries of the Tier 1 Plan an annual
contributions required of judges of the 36th District Court.”3
In Paragraph 5, Plaintiffs ask the court to afford to Plaintiffs
who have remained members of the Tier 1 Plan but have not
yet retired “a retirement allowance upon their retirements
equal to that to which [comparable] judges of the 36th District
Court” are or will be entitled.4 Paragraph 6 seeks restitution
in the form of “the difference between the dollar amount of
retirement allowance” that Plaintiffs have received “and the
greater amount of retirement allowance they would have
received” if they were 36th District Court judges.5 Paragraph
7 seeks an annual percentage increase in retirement allowance
equivalent to the annual percentage increases afforded to
other state funded retirement systems.6 Paragraph 8 seeks

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No. 02-2287 Ernst, et al. v. Roberts, et al. 41
percentage increase in retirement allowance equivalent
to the annual percentage increase afforded by other
state funded retirement systems which provide for
annual percentage increases in benefits[.]
7 8. Order that Defendants forthwith mak e restitutio n to
those Plaintiffs and memb ers of The Class who are
retirants or retirement allowance beneficiaries of the
Tier 1 Plan by paying to them, with interest, the
difference between the dollar amount of retirement
allowance equivalent to those afforded by other state
funded retirement systems.
8 9. Order Defendants to perm it Plaintiffs and members of
The Class the opp ortunity to terminate me mbe rship in
the Tier 1 Plan and irrevocably ele ct to pa rticipate in
the Tier 2 Plan as of a designated date certain each
year, which date will be used for calculating APV[.]
10. Order Defendants to permit Plaintiffs and
members of The Class who have elected to transfer
from the Tier 1 Plan to the Tier 2 Plan the
opp ortunity to have the Actuarial Present Value
(“APV”) of their ac counts recalculated as of a d ate
subsequent to June 30, 1998 and order Defendants
to transfer the difference between the recalculated
APV and the APV previously calculated, with
interest, from the reserves of the Tier 1 Plan to that
perso n’s Tier 2 ac count.
11. Order that, as to Plaintiffs and members of T he
restitution in the form of “the difference between the dollar
amount of retirement allowance equivalent to those afforded
by other state funded retirement systems.”7 Although
couched in equitable terms, Paragraphs 4 through 8 in reality
seek compensation for the State’s past action which Plaintiffs
perceive as inequitable.
Paragraphs 9 through 11 similarly seek to correct past
errors by requiring Defendants to recalculate how benefits
should be calculated. 8 Plaintiffs also seek an order allowing
42 Ernst, et al. v. Roberts, et al. No. 02-2287
Class who have elected to transfer to the Tier 2
Plan, Defendants recalculate their APV as of the
app licable APV date as though the Tier 1 P lan’s
accumulated bene fit obligation to them was
equivalent to that of a judge of the 36th District
Court of the same age and length of service and
transfer the difference between the recalculated
APV and the APV previously calculated, with
interest, from the reserves of the Tier 1 Plan to that
perso n’s Tier 2 P lan acc ount[.]
9 12. Order Defendants to pay The Excess
Contributions to members, retirants and
retirement allowance beneficiaries of the Tier
1 Plan[.]
10 13. Pre liminarily a n d p e r m a n e n tl y e n j o in
Defendants from transferring or paying
monies from the Tier 1 Plan’s reserve for
employer contributions to the court fee fund,
from transferring or paying monies from the
court fee fund to the court equity fund, and
from transmitting court fees to the treasurer
for deposit into the court fee fund instead of
into the reserve for employer contrib utions[.]
14. Ord er Defendants to cause the preparation of
an annual report for the current fiscal year and
future fiscal years that fully and accurately
repo rts all of the reserve acco unts of the Tier
1 Plan and o f the court fee fund and all
activities of the Tier 1 Plan, including but not
them to revoke their original elections to participate in the
Tier 2 Plan so that they can make their elections effective as
of some different date in time. Paragraph 12 asks the court
to order the defendants to pay excess contributions.9 In short,
the foregoing assertions all seek the equivalent of money
damages that are more than incidental, and seek retroactive
monetary relief. Paragraphs 13 through 16 are not related to
the federal constitutional claims, but are based on Plaintiffs’
“wasting trust” claim under state law.10 Paragraphs 17

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No. 02-2287 Ernst, et al. v. Roberts, et al. 43
limited to the transfer or payment of monies
out of the court fee fund into the court equity
fund[.]
15. Order Defendants to provide an accounting
for past fiscal years of the various reserve
acco unts of the Tier 1 Plan, of the court fee
fund, and of all of the activities of the Tier 1
Plan, including but not limited to the transfer
or deposit of monies into and between the
various reserve accounts of the Tier 1 Plan,
the deposit of monies into the court fee fund,
and the transfer of payment of monies out of
the court fee fund into the court equity fund[.]
16. P relimina rily a n d p e r m a n e n t l y e n j oi n
Defend ants, their successors, and their agents
from transferring to the treasury at the time of
termination of the Tier 1 Plan those funds
remaining in the various accounts in the Tier
1 Plan in excess of those needed to pay
retirement allowances to members, vested
former members, retirants and retirement
allowance beneficiaries of the Tier 1 Plan and
order Defendants and their successors to pay
such funds to those persons who at time of
termination are members, vested former
memb ers, retirants, or retirement allowance
beneficiaries[.]
11 17. Award Plaintiffs and members of The Class
attorneys fees pursuant to 42 USC § 1988[.]
18. Award Plaintiffs and members of The Class
interest to which they are entitled; and
19. Award Plaintiffs and members of The Class
such additional or different relief to which
they are entitled.
through 19 seek attorney fees, interest, and any other
appropriate relief.11 Although not claims for prospective
injunctive relief, they would likely be allowed as ancillary
relief, see Hutto v. Finney, 437 U.S. 678 (1978), but only if
the action were otherwise proper under § 1983. These are not
44 Ernst, et al. v. Roberts, et al. No. 02-2287
12 3. Preliminar ily and pe rman ently enjoin
Defendants from requiring those Plaintiffs and
memb ers of The Class who have remained as
participants in the Tier 1 Plan to contribute a
higher percentage of their compensation for a
retirement allowance than jud ges of the 36th
District Court.
13Unlike the majority, I do not read Dubuc, Brotherton, and Irvine
as basica lly rendering other factors irrelevant when evidence is presented
regarding whether the state treasury wo uld be liable for a jud gment.
claims for prospective injunctive relief. Only paragraph 3,
which I will discuss momentarily, appears to seek prospective
injunctive relief.12
III.
So the question becomes, if the requested relief is ordered,
where would the money come from? Because all of the
defendants are sued in their official capacities, it is anticipated
that the monies would come from the related agencies, the
JRS, and the state treasury (the state treasurer Douglas
Roberts, is also a named defendant). This brings us to the
next issue, is the JRS an arm of the state for purposes of the
Eleventh Amendment? As the majority correctly states, “[i]n
Eleventh Amendment analysis, the question of whether a
public entity is best characterized as an arm or alter ego of the
state, instead of being deemed a political subdivision of the
state, hinges on whether there is potential legal liability of the
state treasury to satisfy a judgment.” Maj. Op. at 8 (footnote
omitted). As this Court recently observed in Dubuc v.
Michigan Bd. of Law Exam’rs, 342 F.3d 610 (6th Cir. 2003):
“To determine whether an entity is a state department or
agency for purposes of the Eleventh Amendment, the primary
issue is whether the state would ultimately be liable for any
money judgment against the entity.” Id. (quoting Brotherton
v. Cleveland, 173 F.3d 552, 560-61 (6th Cir. 2003)).13

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No. 02-2287 Ernst, et al. v. Roberts, et al. 45
14I disagree with this conclusion as well, because it is contrary to the
statutes establishing the JRS, which require the State Treasurer to invest
JRS assets like all other assets of the State. Mich. Comp. Laws
§ 38.2 206 (1), 38.11 32-3 8.11 40i. T he Act requires the State T reasurer to
dep osit JRS funds in the same manner as and subject to the laws
gove rning the deposit of other State funds. Id. § 38 .220 6(1).
Other courts have held that funds deposited in a retirement system do
not lose their fundamental character as public funds. See Fitzpatrick v.
Bitzer, 519 F.2d 559 , 565 n.4 (2d Cir. 197 5), aff’d in part, rev’d in part
on other grounds, 427 U.S. 445 (1976). Relatedly, courts have held that
retirement systems are arms of the state and therefore entitled to Eleventh
Amendm ent immunity. See, e.g., M cGinty v. New Y ork, 251 F.3d 84 (2d
Cir. 2001) (holding that the New York Retirement System is an arm of the
state; dismissing the plaintiffs’ claims as barred by the Eleventh
Amendm ent); JMB G roup Trust IV v. Pennsylvania M un. Ret. Sys., 986
F. Supp. 534, 53 8 (N.D. Ill. 1997) (holding that the Pennsylvania
Retirement System was an arm of the state where the duties and
responsibilities of the Retirement System were “totally defined and
limited by the Commonwealth of Pennsylvania under the provisions of the
Pennsylvania Code”); Schu lthorpe v. V irginia Ret. Sys., 952 F. Supp. 307
As the majority notes, there are two ways in which
potential legal liability for a judgment against the JRS might
reach state treasury funds. “First, JRS funds might be co-
mingled with general funds–which is to say that JRS funds
might be available for general use by the state for other
purposes, unrelated to the retirement system. If funds are co-
mingled, then any JRS liability would be tantamount to state
treasury liability.” The second method asks whether “even if
JRS funds are segregated from state treasury funds, the JRS
might not have sufficient funds to satisfy a judgment;
applicable state law could make state treasury funds available
to satisfy the part of the judgment that exceeded the amount
of funds available to satisfy the part of the judgment that
exceeded the amount of funds available to the JRS.” Maj.
Op. at 12.
The majority concludes that under the first method, “JRS
funds are kept in a separate trust from general state
funds–thus, funds taken from the JRS to satisfy a judgment
would not be funds from the state treasury.” Maj. Op. at 13.14
46 Ernst, et al. v. Roberts, et al. No. 02-2287
(E.D. Va. 1997 ) (holding that Virginia’s Retirement System is an arm of
the state entitled to Eleventh Amendm ent imm unity); Mello v.
Woo dhouse, 755 F. Sup p. 923 (D. N ev. 199 1) (holding that suit against
the Nevada P ublic Employees’ Retirement Board was barred by the
Eleventh Amendme nt).
Blake v. Kline, 612 F.2d 71 8 (3d Cir. 197 9), cited by the m ajority, is
not particularly persuasive. Although the Third Circuit directed the
district court to consider on remand an opinion by the Pennsylvania
Attorney General stating that the money deposited in the retirement fund
had lost its identity as Commonwealth fund s, the Co urt ultimately stated
that the district court needed to determine whether the state, in making a
contribution, was acting in the role of sovereign or some other capacity.
Id. at 724.
Other factors, see H all v. M ed. C ollege of O hio, 742 F.2d 299 , 302
(6th Cir. 1984), reflect that the JRS is an arm of the state. The M ichigan
Judges Retirement System and the Michigan Judges Retirement Board
were created by the Michigan Judges Retirement Act. of 1992, M ich.
Comp. Laws §§ 38.21 01-2670 . The Act mand ate that the Boa rd consist
of the State Treasurer and the Attorney General of Michigan, as well as
one sitting judge and two additional members appointed by Governor of
Michigan with the advice and consent of the Michigan Senate. Mich.
Comp. Laws § 38.2202(1). The Act is integrated with other Michigan
departments. Indeed, the Michigan Judges Retirement Bo ard “is created
in the departm ent [of m anagement and budget].” §§ 38 .2202(1 );
38.2104(5). The M ichigan Departm ent of M anagement is respo nsible
“for the budgeting, procurement, and related management functions of the
retirement system.” Id. § 38 .220 6(1). The State Tre asurer “is the
treasurer of the retirement system.” Id. § 38 .220 6(l). T he M ichigan
Attorney General is the Board’s legal advisor and repre sents the B oard in
all litigation. Id. § 38.2207. The retirement system is required to prepare
an annual report each fiscal year “regarding the financial, actuarial, and
other activities of the retirement system,” and present it to the Governor
and Legislature. Id. § 38.2209. Furthermore, “[t]he retirement system
shall draw its warrants upon the state treasury, payable out of funds of the
retirement system, for the payment of retirement allowances, accumulated
contributions, and the paym ent of salaries and other expenses necessary
in the administration of the retirement system.” Id. § 38.2208. The
retirement system, is funded, in part, by annual legislative appropriations
and other p ublic m onies. Id. 38.2 303 , 38.2 304 .
In other words, there is no commingling of funds. Regarding
the second method, the majority recognizes that, other things
being equal, the state treasury might be liable for any shortfall

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No. 02-2287 Ernst, et al. v. Roberts, et al. 47
pursuant to Art. IX, § 24 of the Michigan Constitution. See
Maj. Op. at 19. That provision states:
The accrued financial benefits of each pension plan and
retirement system of the state and its political
subdivisions shall be a contractual obligation thereof
which shall not be diminished or impaired thereby.
Financial benefits arising on account of service rendered
in each fiscal year shall be funded during that year and
such funding shall not be used for financing unfunded
accrued liabilities.
Musselman v. Governor, 533 N.W.2d 237, 240 n.7 (Mich.
1995), on reh’g on other grounds, 450 N.W.2d 346 (Mich.
1996). The provision itself is clear, and Musselman further
indicates that the state is obligated to prefund said benefits:
“We hold that the state is obligated to prefund health care
benefits under art. 9, § 24.” Id. at 246.
However, Musselman also held that Article IX, § 24 is not
self-executing:
In other words, insofar as the plaintiffs are asking us to
require the Legislature to appropriate funds for
retirement health care benefits, we understand that the
intention of the drafters was that the second sentence of
Const. 1963, art. 9, § 24 is not self-executing. Because
the provision does not alter the rule that legislative action
is necessary to appropriate funds, it fails to “‘lay[]down
rules by means of which [its] principles may be given the
force of law.’”
Id. (alteration in original; footnote omitted); see also id.
(“However, because we have no authority to order the
Governor or the Legislature to appropriate funds, mandamus
is denied.”)
The majority acknowledges that “[a]bsent the Musselman
case, it might have been argued that the state treasury could
48 Ernst, et al. v. Roberts, et al. No. 02-2287
have been held liable pursuant to Art. IX, § 24.” Maj. Op. at
19; see also id. at 7 n.8 (“Various federal claims in this case
clearly seek monetary relief, including the refund and
payment of portions of Plaintiffs’ contributions to the JRS.”).
The majority nonetheless concludes that because Musselman
“establishes that Art. IX, § 24 does not create any right of
action that could force state treasury funds to be used to pay
any judgment against the JRS,” Maj. Op. at 15, there is no
Eleventh Amendment immunity bar to suit. See Maj. Op. at
7 n.8 (“Because we hold that none of the claims for monetary
relief are covered by Eleventh Amendment immunity, we
need not reach the issue of whether there are any federal
claims seeking only prospective, non-monetary relief.”). The
majority’s conclusion that the Eleventh Amendment is not
implicated, despite the provisions of Art. IX, § 24, is based on
the following reasoning:
[t]here can be no action in any court to force the state
treasury to pay any part of a judgment relating to a
federal claim in a lawsuit concerning the JRS–thus, the
state treasury is not subject to potential legal liability.
Even if the JRS lacked sufficient funds to satisfy a
judgment in this case, the state treasury could not be held
liable for any unpaid portion of the judgment.
Maj. Op. at 17-18.
In other words, the majority reasons that, because state law
says that the money cannot come from the state treasury, a
federal court could not order such relief either, so there is no
need to worry about the Eleventh Amendment. This
reasoning is faulty because a state’s exercise of state
sovereign immunity does not control the question of federal
constitutional immunity. Cf. Dubuc, 342 F.3d at 617 (stating
that “[w]hile [a provision of the Michigan Supreme Court
Rules Concerning the State Bar of Michigan providing the
staff of the State Bar and the Board of Law Examiners] may
immunize the individual defendants from state law claims, no
state law or rule can immunize anyone from liability for

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No. 02-2287 Ernst, et al. v. Roberts, et al. 49
15In Dubuc, the individual d efendants, all of whom were sued in their
official capacities, argued that they were immune from the federal claims
under 42 U.S.C. § 1983 because state law made them “ab solutely immune
from suit for conduct arising o ut of the p erform ance of their duties.”
Dubuc, 342 F.3d at 617. This Court rejected this argum ent because state
law canno t insulate the defendants from violations of federal law. It is for
this proposition that I cited Dubuc, and no other. T hus, the d octrine of Ex
Parte Young was therefore applicable to the individual defendants sued
in their official capacities.
16This leads to a curious result: although the state cannot be sue d in
state court because it has exercised its sovereign immunity, it can be sued
in federal court bec ause it cannot b e sued in state court.
violating the United States Constitution”).15 In fact, on the
flip side, the Supreme Court has consistently held that a state
does not waive its Eleventh Amendment immunity by
consenting to suit only in its own courts. Port Auth. Trans-
Hudson Corp. v. Feeney, 495 U.S. 299, 305 (1990) (citations
omitted); Atascadero State Hosp. v. Scanlon, 473 U.S. 234,
241 (1985) (“Thus, in order for a state statute or constitutional
provision to constitute a waiver of Eleventh Amendment
immunity, it must specify the State’s intention to subject itself
to suit in federal court.”); Pennhurst, 465 U.S. at 99-100 n.9
(citations omitted); Florida Dept. of Health & Rehabilitative
Servs. v. Florida Nursing Home Assn., 450 U.S. 147, 150,
1981 (per curiam); Great Northern Life Ins. Co. v. Read, 322
U.S. 47, 54 (1944) ( “[I]t is not consonant with our dual
system for the Federal courts to be astute to read the consent
to embrace Federal as well as state court. . . . [A] clear
declaration of the state’s intention to submit its fiscal
problems to other courts than those of its own creation must
be found”). By the same token, the state should not lose its
constitutional immunity simply because it exercised its state
sovereign immunity.16 As the foregoing precedent
establishes, the state must make its consent to suit in federal
court clear.
50 Ernst, et al. v. Roberts, et al. No. 02-2287
The raison d’etre for the Eleventh Amendment is to
protect, in a federal forum, a state’s exercise of sovereignty
immunity. As recently observed by a majority of Justices in
Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996):
Although the text of the Amendment would appear to
restrict only the Article III diversity jurisdiction of the
federal courts, “we have understood the Eleventh
Amendment to stand not so much for what it says, but for
the presupposition . . . which it confirms.” Blatchford v.
Native Village of Noatak, 501 U.S. 775, 779 . . . (1991).
That presupposition, first observed over a century ago in
Hans v. Louisiana, 134 U.S. 1, . . . (1890), has two parts:
first, that each State is a sovereign entity in our federal
system; and second, that “‘[i]t is inherent in the nature of
sovereignty not to be amenable to the suit of an
individual without its consent,’” id., at 13 . . . (emphasis
deleted), quoting The Federalist No. 81, p. 487 (C.
Rossiter ed. 1961) (A. Hamilton). See also Puerto Rico
Aqueduct and Sewer Authority, supra, [506 U.S. 139
1993] at 146 (“The Amendment is rooted in a recognition
that the States, although a union, maintain certain
attributes of sovereignty, including sovereign
immunity”). For over a century we have reaffirmed that
federal jurisdiction over suits against unconsenting States
“was not contemplated by the Constitution when
establishing the judicial power of the United States.”
Hans, supra, at 15. [Fn7]
_____________
FN7. E.g., North Carolina v. Temple, 134 U.S. 22, 30,
10 S. Ct. 509, 511, 33 L. Ed. 849 (1890); Fitts v.
McGhee, 172 U.S. 516, 524, 19 S. Ct. 269, 272, 43 L.
Ed. 535 (1899); Bell v. Mississippi, 177 U.S. 693, 20 S.
Ct. 1031, 44 L. Ed. 945 (1900); Smith v. Reeves, 178
U.S. 436, 446, 20 S. Ct. 919, 923, 44 L. Ed.1140 (1900);
Palmer v. Ohio, 248 U.S. 32, 34, 39 S. Ct. 16, 16-17, 63
L. Ed. 108 (1918); Duhne v. New Jersey, 251 U.S. 311,
313, 40 S. Ct. 154, 64 L. Ed.280 (1920); Ex parte New

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No. 02-2287 Ernst, et al. v. Roberts, et al. 51
York, 256 U.S. 490, 497, 41 S. Ct. 588, 589, 65 L. Ed.
1057 (1921); Missouri v. Fiske, 290 U.S. 18, 26, 54 S.
Ct. 18, 20-21, 78 L. Ed. 145 (1933); Great Northern Life
Ins. Co. v. Read, 322 U.S. 47, 51, 64 S. Ct. 873, 875, 88
L. Ed. 1121 (1944); Ford Motor Co. v. Department of
Treasury of Ind., 323 U.S. 459, 464, 65 S. Ct. 347, 350-
51, 89 L. Ed. 389 (1945); Georgia Railroad & Banking
Co. v. Redwine, 342 U.S. 299, 304, n. 13, 72 S. Ct. 321,
324, n. 13, 96 L. Ed. 335 (1952); Parden v. Terminal
Railway of Ala. Docks Dept., 377 U.S. 184, 186, 84 S.
Ct. 1207, 1209-1210, 12 L. Ed. 2d 233 (1964); United
States v. Mississippi, 380 U.S. 128, 140, 85 S. Ct. 808,
814-15, 13 L. Ed. 2d 717 (1965); Employees of Dept. of
Public Health and Welfare of Mo., 411 U.S. 279, 280, 93
S. Ct. 1614, 1615-1616, 36 L. Ed. 2d 251 (1973);
Edelman v. Jordan, 415 U.S. 651, 662-663, 94 S. Ct.
1347, 1355-1356, 39 L. Ed. 2d 662 (1974); Fitzpatrick v.
Bitzer, 427 U.S. 445, 96 S. Ct. 2666, 49 L. ed. 2d 614
(1976); Cory v. White, 457 U.S. 85, 102 S. Ct. 2325, 72
L. Ed. 2d 694 (1982); Pennhurst State School and
Hospital v. Halderman, 465 U.S. 89, 97-100, 104 S. Ct.
900, 906-908, 79 L. Ed. 2d 67 (1984); Atascadero State
Hospital v. Scanlon, 473 U.S. 234, 237-238, 105 S. Ct.
3142, 3144, 3145, 87 L. E.2d 171 (1985); Welch v. Texas
Dept. of Highways and Public Transp., 483 U.S. 468,
472-474, 107 S. Ct. 2941, 2945-2946, 97 L. Ed. 2d 389
(1987) (plurality opinion); Dellmuth v. Muth, 491 U.S.
223, 227-229, and n. 2, 105 L. Ed. 2d 181 (1989); Port
Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299,
304, 110 S. Ct. 1868, 1872, 109 L. Ed. 2d 264 (1990);
Blatchford v. Native Village of Noatak, 501 U.S. 775,
779, 111 S. Ct. 2578, 2581, 115 L. Ed. 2d 686 (1991);
Puerto Rico Aqueduct and Sewer Authority v. Metcalf &
Eddy, Inc., 506 U.S. 139, 144, 113 S. Ct. 684, 687-688,
121 L. Ed. 2d 605 (1993).
Seminole Tribe, 517 U.S. at 54. The majority’s unique use of
state sovereign immunity doctrine as some kind of implied
waiver of constitutional immunity constitutes an
52 Ernst, et al. v. Roberts, et al. No. 02-2287
impermissible end run around the well-established principles
of the Eleventh Amendment. If the state treasury is immune
from liability for such purposes, it is because of the Eleventh
Amendment and not Article IX, § 24 of the Michigan
Constitution or the Musselman decision. And the Eleventh
Amendment directs that if, as here, the state is the real party
in interest, has not consented to suit in a federal forum, and
monetary relief is sought, the suit must be dismissed.
Contrary to its assertion, the majority and I actually agree
that state law plays a significant role in the Eleventh
Amendment immunity analysis. However, I do not perceive
Art. IX § 24 and the Musselman decision as leading to the
conclusion that the JRS is not an arm of the state. Rather, I
see them as confirming the contrary conclusion. Further, any
funding requirement, even if it must be honored by the
legislature and not ordered by a court, will necessarily impact
on the state treasury. Cf. Fitzpatrick v. Bitzer, 519 F.2d 559
(2d Cir. 1975), rev’d on other grounds, 427 U.S. 445 (1976).
(holding that “[a] judgment against the Connecticut State
employees fund would automatically increase the obligations
of the general state treasury and amount to a judgment against
the state” because the state was required to appropriate funds
annually on an actuarial basis such that at least 75% of the
total retirement income payment for each year had to made by
the state). See generally Edelman, 415 U.S. at 664 (stating
that “the general rule is that relief sought nominally against an
officer is in fact against the sovereign if the decree would
operate against the latter” (internal quotations omitted)); see
id. n.11 (stating that “[t]he general rule is that a suit is against
the sovereign if the judgment sought would expend itself on
the public treasury or domain” (internal quotations omitted)).
Finally, the majority fails to address the impact of Mich.
Comp. Laws. § 38.2302, which imposes mandatory state
contribution requirements:
Sec. 302. (1) Except as provided in subsection (2), the
legislature shall annually appropriate to the retirement

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No. 02-2287 Ernst, et al. v. Roberts, et al. 53
system the amount determined under subsection (2) in
order to fund the retirement system the amount
determined under the fiscal year for which the
appropriation is made. The legislature shall annually
appropriate to the retirement system the amount
determined under subsection (3) in order to reconcile the
estimated appropriation made in the previous fiscal year
with the actual appropriation needed to adequately fund
the retirement system for the previous fiscal year.
(2) The legislature shall annually appropriate to the
retirement system an amount equal to 3.5% of the
aggregate annual compensation of the difference between
the sum of the contribution rates determined under
section 301(2) and (3) multiplied by the aggregate annual
compensation and the estimated revenue from court fees
under section 304, whichever is greater. The department
shall submit the amount determined under this subsection
in the executive budget to the legislature for
appropriation in the next fiscal year. If the department
receives notification from the United States internal
revenue service that this subsection will cause the
retirement system to be disqualified for tax purposes
under the internal revenue code, this subsection does not
apply and subsection (4) applies.
(3) Not later than 60 days after the termination of each
state fiscal year, the bureau or retirement systems shall
certify to the director of the department the actual
aggregate annual compensation paid to all active
members during the preceding state fiscal year and the
difference, if any, between the actual actuarial funding
requirement and the sum of the actual revenue received
by the retirement system during the preceding fiscal year
from the appropriation pursuant to subsection (2) or (4),
whichever is applicable, employer contributions pursuant
to section 303, court filing fees pursuant to section 304,
and mandatory member contributions pursuant to section
305. The department shall submit the amount
54 Ernst, et al. v. Roberts, et al. No. 02-2287
determined under this subsection in the executive budget
to the legislature for appropriation in the next fiscal year.
(4) If applicable, the bureau of retirement systems in
the department shall certify to the director of the
department an amount equal to the difference between
the estimate actuarial funding requirement for the next
fiscal year and the sum of the estimated revenue to be
received by the retirement system during the next fiscal
year from employer contributions pursuant to section
303, court fees pursuant to section 304, and mandatory
member contributions pursuant to section 305. The
department shall submit the amount determined under
this subsection in the executive budget to the legislature
for appropriation in the next fiscal year.
Mich. Comp. Laws Ann. § 38.2302 (West 1997). See also
§ 38.2208 (stating that “[t]he retirement system shall draw its
warrants upon the state treasury, payable out of funds of the
retirement system, for the payment of retirement allowances,
accumulated contributions, and the payment of salaries and
other expenses necessary in the administration of the
retirement system”). In my view, the foregoing provisions
clearly reflect that the state considers the JRS a state agency,
in the department of budget and management, §§ 38.2201(1),
38.2104(5), funded by the treasury, and not merely a political
subdivision.
In sum, I would affirm the district court’s dismissal on the
basis of Eleventh Amendment immunity.
IV.
Plaintiffs’ state law claims were also properly dismissed,
although for reasons different than those stated by the district
court. In Pennhurst v. State Sch. & Hosp. v. Halderman,
supra, the Supreme Court held that the Eleventh Amendment
prohibits federal courts from ordering state officials to
conform their conduct to state law, and also bars state law

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No. 02-2287 Ernst, et al. v. Roberts, et al. 55
17This is equally true as to all of Plaintiffs’ claims.
claims brought under pendent jurisdiction. 465 U.S. at 103-
06. This is true whether the relief sought is prospective or
retroactive. Id. In distinguishing federal claims against state
officials from state law claims against state officials, the
Court reasoned that:
This need to reconcile competing interests [the need to
promote the supremacy of federal law vs. the
constitutional immunity of the States] is wholly absent,
however, when a plaintiff alleges that a state official has
violated state law. In such a case the entire basis for the
doctrine of Young and Edelman disappears. A federal
court’s grant of relief against state officials on the basis
of state law, whether prospective or retroactive, does not
vindicate the supreme authority of federal law. On the
contrary, it is difficult to think of a greater intrusion on
state sovereignty than when a federal court instructs state
officials on how to conform their conduct to state law.
Such a result conflicts directly with the principles of
federalism that underlie the Eleventh Amendment. We
conclude that Young and Edelman are inapplicable in a
suit against state officials on the basis of state law.
Id. at 106. Thus, even if only injunctive relief were sought,
dismissal of Counts II, IV, VI, VIII, IX, and X was proper.
V.
Paragraph 3 asks the court to enjoin Defendants from
requiring Plaintiffs who have remained as participants in the
Tier 1 Plan to pay a larger contribution to the JRS than the
36th District Court judges. Although couched as prospective
language, in essence Plaintiffs seek to require the allocation
of state funds that are subject to the requirements of the Act.17
Thus, the injunctive relief requested is not “truly prospective
non-monetary relief,” and it is not incidental; therefore, the
56 Ernst, et al. v. Roberts, et al. No. 02-2287
“primary thrust of the suit” remains the money. See Barton,
293 F.3d at 949. As we observed in Barton, “the interest of
a sovereign in allocating state funds is a ‘very serious’ one,”
and “an attempt to force the allocation of state funds
implicates core sovereign interests.” Id. at 951 (quoting
Kelley v. Metro. County Bd. of Educ., 836 F.2d 986, 995 (6th
Cir. 1987)). The Eleventh Amendment bars this type of
claim as well. See Barton, 293 F.3d at 949-51 (discussing
exception to doctrine of Ex Parte Young; stating that the
injunctive relief must be truly prospective, non-monetary
relief with only incidental impact on the state treasury, and
that “[t]he dividing line, therefore, is whether the money or
non-monetary injunction is the primary thrust of the suit”).
Furthermore, even if this claim–and any of the others for
that matter–truly seeks prospective, nonmonetary injunctive
relief and is therefore not barred by the Eleventh Amendment,
relief is still not appropriate if there is no constitutional
violation. In my view, dismissal was proper because the JRS
has a rational basis and therefore its application does not
violate the federal equal protection clause. See generally
Terre v. Boraas, 416 U.S. 1 (1974) (holding that in equal
protection cases not involving a suspect classification or
fundamental right, courts apply a rational basis test). As the
Michigan Supreme Court ruled in Harvey v. Michigan, 664
N.W.2d 767 (Mich. 2003):
The state, by assuming the entire funding of the pensions
of 36th District judges in the financially distressed city of
Detroit, made those pensions more secure. Certainly the
Legislature would or could understand that this would
induce competent and qualified attorneys to become
judges or to remain judges, just as the legislation did in
Hughes [v. Judges Retirement Bd., 282 N.W.2d 160
(Mich. 1979)]. Accordingly, we agree that the trial
court’s holding that plaintiffs have not satisfied their
burden to show that there was no rational basis for this
legislation. Thus, the statute withstands constitutional
scrutiny.

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No. 02-2287 Ernst, et al. v. Roberts, et al. 57
18In Hughes v. Judges’ Ret. Bd., 282 N.W .2d 1 60 (Mich. 19 79), a
group of already-retired judges challenged legislation amending the
Judges Retirement Act to increase the pension benefits to judges who
retired after its effected date. The amendment caused the pension of new
and still-active judges to be higher than retirees’ benefits. The M ichigan
Supreme Court analyzed the statute under the rational-basis test and
concluded that statute was constitutional. Ir reasoned that the legislation
was rational because the Legislature was inducing “competent and
qualified attorneys to become judges, or to remain judges if alread y in
office.” Id. at 168.
Id. at 774.18 I agree with the Michigan Supreme Court that
the proper test is rational basis and that the Judges
Retirement Act easily passes constitutional scrutiny. I would
hold that Defendant state officials did not violate Plaintiffs’
equal protection rights by enforcing the provisions of the
Judges Retirement Act.
VI.
For the foregoing reasons, I believe that we should affirm
the judgment of the district court dismissing in its entirety
Plaintiffs’ complaint.

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