failure to state a claim. Specifically, the State answered Count 1 of the complaint by admitting the tax debt was discharged pursuant to the terms of the bankruptcy court’s order, but denied the allegation that the debt was dischargeable under the Bankruptcy Code. The State answered Counts 2 and 3 by asserting Eleventh Amendment sovereign immunity. In April 1997, the State enlarged its assertion of Eleventh Amendment immunity to include Count 1 by filing a motion to dismiss all claims for lack of jurisdiction. The bankruptcy court, relying upon Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), dismissed the case for lack of jurisdiction. The BAP affirmed, Mitchell v. California Franchise Tax Bd., 222 B.R. 877, 881-82 (9th Cir. BAP 1998) (<HOLDING>). The BAP found that § 106(a) was passed
holding 11 usc  106a unconstitutional to the extent that it purports to abrogate eleventh amendment immunity holding that congress did not intend to abrogate eleventh amendment immunity in enacting 42 usc  1983 holding that congress could abrogate the eleventh amendment pursuant to the commerce clause holding that although congress expressed its intent to abrogate eleventh amendment immunity in 11 usc  106a it could not do so under seminole tribe holding that congress did not properly abrogate states eleventh amendment immunity from suits under the patent act