Frank Romero painted a mural titled “Going to the Olympics” to commemorate the 1984 Olympics. The mural is located in L.A. on the Alameda Street underpass of freeway 101. In 1984, it looked like this:
Then it looked like this:
Now it looks like this:
Romero filed suit, asserting that the California Department of Transportation had violated his 106A right of integrity, potentially granted to him under the Visual Artists Rights Act of 1990. 106(A)(3)(b) provides, in part, that an author of a visual work has the right to “prevent any destruction of a work of recognized stature.” Caltrans moved to dismiss claiming that it was immune from suit under the Eleventh Amendment.
Waiver of sovereign immunity by accepting federal funds
Romero argued that Caltrans waived its sovereign immunity by accepting federal funds to build and maintain California’s highways, which Romero contended, included an allocation for mural restoration. Romero argued that, by accepting the funds, Caltrans agreed to abide by the Copyright Remedy Clarification Act (“CRCA”), 17 U.S.C. § 511(a), which provides that “[a]ny State … shall not be immune, under the Eleventh Amendment of the Constitution of the United States.” (Emphasis added.) Judge Philip S. Gutierrez rejected this argument finding that the federal government hadn’t conditioned the funds upon California waiving sovereign immunity:
It is true that one way for a state to waive its immunity is to accept federal funds. Clark v. State of Cal., 123 F.3d 1267, 1271 (9th Cir.1997) (quoting Atascadero, 473 U.S. at 247). However, “mere receipt of federal funds cannot establish that a State has consented to suit in federal court.” Atascadero, 473 U.S. at 246-47. Rather, the “funding statute [must] ‘manifest a clear intent to condition participation in the programs funded under the Act on a State’s consent to waive its constitutional immunity.’ ” Id. at 247; see also Clark, 123 F.3d at 1271. In this case, Romero has failed to point the Court to any provision in the relevant funding statute that manifests a clear intent to condition the State’s participation on its consent to waive its Eleventh Amendment immunity.
Congressional abrogation of sovereign immunity
Romero next argued that Congress abrogated California’s Eleventh Amendment immunity in the CRCA. The Court cited Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 55 (1996) for the relevant standard:
It is now well-established that Congress can abrogate a State’s sovereign immunity only if it has (1) unequivocally expressed its intent to abrogate the immunity and (2) acted under a valid exercise of power.
Caltran’s didn’t dispute the fact that (1) Congress intended to abrogate immunity. In regards to (2) acting under a valid exercise of power, Judge Gutierrez cited Seminole for the proposition that Congress can abrogate sovereign immunity when acting to enforce constitutional rights under Section 5 of the Fourteenth Amendment (“The Congress shall have power to enforce, by appropriate legislation, the provisions of this article”), but cannot circumvent the Eleventh Amendment under the powers granted in Article I. Congress’ power under the Fourteenth Amendment is remedial not substantive:
In determining whether, for purposes of Congress’ enforcement power under section 5 of the Fourteenth Amendment, federal legislation is permissibly remedial or impermissibly substantive, there must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. This determination can be made by looking at three factors: (1) the nature of the injury to be remedied and whether the state exhibited a pattern of constitutional violations; (2) Congress’ consideration of the adequacy of state remedies to redress the injury; and (3) the coverage of the legislation.
The Court found that (1) it didn’t appear that the CRCA was enacted in response to substantial evidence of copyright infringement by the States; (2) Congress barely considered the availability of state remedies (such as claims for the unlawful taking of private property by the States or breach of contract claims) for infringement when it enacted the CRCA; and (3), the CRCA doesn’t respond to a history of widespread and persisting deprivation of constitutional rights of the type Congress has faced in enacting proper prophylactic § 5 legislation.
Thus, Judge Guitierrez granted Celtran’s motion to dismiss, and joined the Fifth Circuit (Chavez v. Arte Publico Press, 204 F.3d 601, 605 (5th Cir.2000)) and the Southern District of California (Masters, Inc. v. Bd. of Trustees of the Cal. State Univ. Sys., 552 F.Supp.2d 1088, 1094 (S.D.Cal.2008)) in finding that Congress didn’t abrogate sovereign immunity under the CRCA:
In summary, the Court finds that although Congress expressed its unequivocal intent to abrogate the Eleventh Amendment enacting the CRCA, Congress did not have authority to exercise those powers under section 5 of the Fourteenth Amendment. Accordingly, Congress did not validly abrogate sovereign immunity under the CRCA.
Recent scholarship from the 
