Services of Maryland, 179 F.3d 754, 756-57 (9th Cir.1999). These circumstances where some courts have found a waiver occurred involve affirmative actions taken by the states for their own benefit in the proceedings. Here, there is no affirmative action taken by the defendants to take advantage of the suit for its own benefit and thus the circumstances of this case do not rise to waivable conduct under the foregoing case law. The Ninth Circuit has recently gone so far as to find an arm of the State to have waived its Eleventh Amendment immunity by mere active litigation of an action on the merits in federal court where it did not assert the defense prior to trial. Hill, 179 F.3d 754, 755; cf. Wichmann v. Bd. of Trustees of Southern Illinois University, 180 F.3d 791, 797 (7th Cir.1999)(<HOLDING>). Although based on a clear minority view, that
holding that an issue not raised in the trial court cannot be raised for the first time on appeal holding constitutional challenge to void statute may be raised for first time on appeal holding that issues raised for the first time on appeal will not be considered holding ineffectiveness cannot be raised for first time on appeal holding that the sovereign immunity defense may be raised for the first time on appeal