Monday, May 03, 2004

governmental immunity
n. the doctrine from English common law that no governmental body can be sued unless it gives permission. This protection resulted in terrible injustices, since public hospitals, government drivers and other employees could be negligent with impunity (free) from judgment. The Federal Tort Claims Act and state waivers of immunity (with specific claims systems) have negated this rule, which stemmed from the days when kings set prerogatives.
See also: Federal Tort Claims Act immunity
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Federal Tort Claims Act
n. a statute (1948) which removed the power of the federal government to claim immunity from a lawsuit for damages due to negligent or intentional injury by a federal employee in the scope of his/her work for the government. It also established a set of regulations and format for making claims, giving jurisdiction to federal district courts. Dictionary

Congressional Withdrawal of Immunity .--The Constitution delegates to Congress power to legislate to affect the States in some permissible ways. At least in some instances when Congress does so, it may subject the States themselves to suit at the initiation of individuals to implement the legislation. The clearest example arises from the Reconstruction Amendments, which are direct restrictions upon state powers and which expressly provide for congressional implementing legislation. 71 Thus, ''the Eleventh Amendment and the principle of state sovereignty which it embodies . . . are necessarily limited, by the enforcement provisions of Sec. 5 of the Fourteenth Amendment.'' 72 Dwelling on the fact that the Fourteenth Amendment was ratified after the Eleventh became part of the Constitution, the Court implied that earlier grants of legislative power to Congress in the body of the Constitution might not contain a similar power to authorize suits against the States.

It is true that none of these previous cases presented the question of the relationship between the Eleventh Amendment and the enforcement power granted to Congress under 5 of the Fourteenth Amendment. But we think that the Eleventh Amendment, and the principle of state sovereignty which it embodies, see Hans v. Louisiana, 134 U.S. 1 (1890), are necessarily limited by the enforcement provisions of 5 of the Fourteenth Amendment. In that section Congress is expressly granted authority to enforce "by appropriate legislation" the substantive provisions of the Fourteenth Amendment, which themselves embody significant limitations on state authority. When Congress acts pursuant to 5, not only is it exercising legislative authority that is plenary within the terms of the constitutional grant, it is exercising that authority under one section of a constitutional Amendment whose other sections by their own terms embody limitations on state authority. We think that Congress may, in determining what is "appropriate legislation" for the purpose of enforcing the provisions of the Fourteenth Amendment, provide for private suits against States or state officials which are constitutionally impermissible in other contexts. 11 See Edelman v. Jordan, 415 U.S. 651 (1974); Ford Motor Co. v. Department of Treasury, 323 U.S. 459 (1945).

It should be noted that, even if the Court reverses itself and holds that Congress lacks power to abrogate state immunity in federal courts under its commerce and other Article I powers, Congress is not barred by the Eleventh Amendment, nor apparently by any other constitutional provision, from providing authority for suits in state courts to implement federal statutory rights, thus doing away for those purposes with common law sovereign immunity of the states. 85
[Footnote 85] The point was noted and reserved in Employees of the Dep't of Public Health and Welfare v. Department of Public Health and Welfare, 411 U.S. 279, 287 (1973), while Justice Marshall argued that this was plainly the case. Id. at 298 (concurring). Suits under Sec. 1983, for example, may be brought in state courts, Maine v. Thiboutot, 448 U.S. 1 (1980), and state immunities are inapplicable. Id. at 9 n.7; Maher v. Gagne, 448 U.S. 122, 130 n.12 (1980). Inasmuch as state courts are ordinarily obligated to enforce federal law, cf. Testa v. Katt, 330 U.S. 386 (1960), state courts are presumably required to hear Sec. 1983 and other claims, but the Court has expressly reserved the issue. Martinez v. California, 444 U.S. 277, 283 n.7 (1980).

Tort Actions Against State Officials .--In Tindal v. Wesley, 130 the Court adopted the rule of United States v. Lee, 131 a tort suit against federal officials, to permit a tort action against state officials to recover real property held by them and claimed by the State and to obtain damages for the period of withholding. The immunity of a State from suit has long been held not to extend to actions against state officials for damages arising out of willful and negligent disregard of state laws. 132 The reach of the rule is evident in Scheuer v. Rhodes, 133 in which the Court held that plaintiffs were not barred by the Eleventh Amendment or other immunity doctrines from suing the governor and other officials of a State alleging that they deprived plaintiffs of federal rights under color of state law and seeking damages, when it was clear that plaintiffs were seeking to impose individual and personal liability on the offi cials. There was no ''executive immunity'' from suit, the Court held; rather, the immunity of state officials is qualified and varies according to the scope of discretion and responsibilities of the particular office and the circumstances existing at the time the challenged action was taken. 134

[Footnote 130] 167 U.S. 204 (1897).

[Footnote 131] 106 U.S. 196 (1883).

[Footnote 132] Johnson v. Lankford, 245 U.S. 541 (1918); Martin v. Lankford, 245 U.S. 547 (1918).

[Footnote 133] 416 U.S. 232 (1974).

[Footnote 134] These suits, like suits against local officials and municipal corporations, are typically brought pursuant to 42 U.S.C. Sec. 1983 and typically involve all the decisions respecting liability and immunities thereunder. On the scope of immunity of federal officials, see supra, pp.748-51.

Sovereign immunity is a concept that dates back to medieval England (or at least that far back). Initially, the idea was that the King (or Queen) could do not wrong and therefore was not subject to being sued. Over time, the rule was relaxed, but it was still brought over to the United States. Very generally, you cannot sue the government (federal, state or local) unless it consents to being sued. Governments do typically consent to being sued for negligence, BUT when the negligence results from a discretionary act, the suit typically will not be permitted. A discretionary act is one in which someone has to think about it, weigh the pros and cons and then make a choice between two or more options. Whether to fill a given pothole and when is a classic discretionary act.

Sovereign Immunity
by Mike Taylor, Esq.

Sovereign immunity is a legal doctrine which, under some circumstances, protects the federal, state, and tribal governments within the United States from lawsuits which would cause those governments to pay out money, real estate, or goods from the governmental treasury. The basic idea behind sovereign immunity is that property held by the government (including assets in the public treasury) is in trust for all the citizens of that particular government. The public treasury and public property are, therefore, to be used for the benefit of all the citizens equally--not jut a few individuals (such as the people who file lawsuits). If, through lawsuit, a plaintiff can collect money from the government for some wrong the government has done him, the public treasury will be reduced for the benefit of that one person. There will then be less money to provide services to all the other citizens of the government. All the citizens will suffer because of the drain on the public treasury caused by a single citizen.

Courts have said that when someone claiming to have been injured by the government or its employees files suit for money damages against the government, and the government has not expressly waived its immunity, the court will not even consider the lawsuit. Instead, the court will dismiss the suit and instruct the injured person to seek payment for his injuries from the legislature or chief executive of the government. The government, say the courts, is immune from any lawsuit seeking money damages against it. Because the legislative body and the chief executive are the elected representatives of all the people, only they should decide where public money (and other property) belonging to all the people should be spent. This is not a decision for the courts.

Many state supreme courts over the last decade have limited or abolished the defense of sovereign immunity, by finding that the doctrine was court made, and declaring it to be unfair. Most state legislatures in the United Sates have given up or waived some portion of their sovereign immunity. Waiver of some immunity is commonly done for public policy reasons.

Legislatures usually waive immunity by passing laws allowing the courts and other judicial bodies to hear and decide certain kinds of cases in which someone injured by the government is suing for money damages. For example, most states have laws allowing citizens injured in automobile accidents involving state-owned vehicles to make claims against the state for money as compensation for injuries. At this stage in the political and financial development of tribal governments, a similar trend in tribal court holdings is not now apparent.

From: Tax and Financing Incentives-A Tribal Perspective (1993)
Mike Taylor is the tribal attorney for the Colville Confederated Tribes
Sovereign Immunity
[17 Alaska Bar Rag No. 3 (Sep/Oct 1993)]
Sovereign immunity springs from the English common law concepts that (1) the "King can do no wrong" (from the days it was believed that kings ruled by divine right and that all rights flowed from the sovereign) and (2) that there can be no legal right as against the authority that makes the law on which the right depends. Despite widespread criticism by legal scholars the doctrine retains a substantial degree of viability in American law based on the second "prong."

Sovereign immunity at the Federal level is particularly indefensible since "We the People," who ordained and established these United States and created the Federal "sovereign," did not see fit to cloak "our sovereign" with immunity for its actions. However the doctrine has been judicially recognized these past 200 years, planted in dictum by Chief Justice Jay in Chisolm v. Georgia [2 Dall. (2 US) 419 (1793)], fertilized in dictum by Chief Justice Marshall in Cohens v. Virginia [6 Wheat. (19 US) 264 (1821)], and germinating in Clarke v. United States [8 Pet. (19 US) 436 (1834)]. There is no constitutional basis for sovereign immunity, it is purely and simply a judge-made legal anachronism.

Despite its pernicious nature and logically indefensible character, the purpose of this article is not to argue for abolition of the doctrine but, rather, to discuss its operation, scope and effect in the bankruptcy forum. Recent cases in the U.S. Supreme Court have driven home the fact that the doctrine continues to thrive in the bankruptcy context, particularly with respect to damages for violations of the automatic stay.

In dealing with the immunity of government and government officials, it must be recognized that we deal with three levels of government: federal, state and local. Each has separate rules and varying degrees of "protection."


As noted above, it is well settled in the law that, absent "consent," the Federal government, its departments and agencies are immune from suit. Sovereign immunity extends to Indian nations [United States v. United States Fidelity Co., 309 US 506 (1940)], government officials acting in their official capacity [United States v. Lee, 106 US 196 (1882)] and, to the extent that Congress has cloaked them with immunity, Federal corporations [Keifer & Keifer v. RFC, 306 US 381 (1939)].

The critical issue is "consent." "Consent to be sued" can be in a general sense, as with the Federal Torts Claim Act. Unfortunately, where violations of the automatic stay are concerned, the FTCA is of no help as the actions do not fit within even the broad scope of that statute. However, when a governmental unit formally invokes the jurisdiction of the bankruptcy court by filing a proof of claim, government exposure to counterclaim liability exists under 11 USC 106(a) [In re Pinkstaff, 974 F2d 113 (CA9 1992); see United States v. Nordic Village, 503 US --- [112 SCt 1011] (1992)]. Under Pinkstaff, the court applies a so-called "logical relationship" test. For purposes of 106(a), a logical relationship exists when the counterclaim arises from the same set of operative facts as the initial claim in that the same operative facts serve as the basis for both claims or the aggregate core of facts upon which the claim rests activates additional legal rights otherwise dormant in the defendant. In the context of 362, when the activities of the governmental unit in question relate to collection of the claim and the collection activity violates the automatic stay, the necessary nexus exists for a waiver of governmental immunity.

Even where the governmental unit has not filed a formal claim, use of a self-help remedy to collect on the claim by the governmental unit may constitute an "informal proof of claim" sufficient to trigger the waiver provisions of 106(a) [In re Town & Country Home Nursing Service, Inc., 963 F2d 1146 (CA9 1992)].


While a sovereign may reign supreme within its borders, sovereignty does not extend beyond its borders [Nevada v. Hall, 440 U.S. 411 (1978)]. Moreover, there being no constiutional basis for sovereign immunity, recognition of sovereign immunity is a forum other than the forum of the sovereign is based upon principles of comity [Id.] Accordingly, sovereign immunity does not per se bar actions against states in Federal courts except to the extent Federal law provides.

However, the Eleventh Amendment bars suit against states, state agencies and instrumentalities in Federal courts. Although the Eleventh Amendment specifically bars only suits against states by citizens of another state, the U.S. Supreme Court has interpreted it as barring suits by citizens of the same state. [Hans v. Louisiana, 134 US 1 (1890)]. Eleventh Amendment protection extends to State officials as well [Tindall v. Wesley, 167 US 204 (1897)], subject to an "excess of capacity" test [e.g., Pennoyer v. McConnaughy, 140 US 1 (1891); Truax v. Raich, 239 US 33 (1915)]. However, immunity of state executive personnel is a qualified immunity limited by a "facts and circumstances" test of reasonableness and good faith [Scheuer v. Rhodes, 416 US 232 (1974)].

As with sovereign immunity, Eleventh Amendment protection may be waived by consent of the State to be sued, such as by voluntary submission to suit [Clark v. Barnard, 108 US 436 (1883)] or by a general law specifically consenting to be sued in Federal courts [Gunter v. Atlantic Coast Line, 200 US 273 (1906)]. However, such consent must be clear and specific, and consent to be sued in its own courts does not imply a waiver of immunity in federal courts [Murray v. Wilson Distilling Co., 213 US 151 (1909)].

Prior to 1992 it was clear that Alaska had not consented to suit in federal courts under the Murray holding because AS 09.50.250 expressly limited suits against the State on contract, quasi-contract or tort to the Superior Court. However, AS 09.50.250 was amended by 1, ch. 119 SLA 1992, deleting the words "in the Superior Court." If the 1992 amendment is construed as authorizing actions against the State in any court of competent jurisdiction, then it may be held that Alaska has waived its Eleventh Amendment protection [cf. Hopkins v. Clemson College, 221 US 636 (1911) (dicta); but cf. Kennecott Copper Corp. v. State Tax Comm., 327 US 573 (1946)].

Absent a general waiver, there may be a specific waiver. To the extent that the actions of the State constitute a waiver of sovereign immunity [under Nordic Village -Pinkstaff-Town & Country], that same set of operative facts also constitutes a waiver of Eleventh Amendment protection [In re 995 Fifth Avenue Associates, LP, 963 F2d 503 (CA2 1992); see Hoffman v. Connecticut Dept. of Income Maintenance, 492 US 96 (1989)].

Political Subdivisions

Political subdivisions are creatures of the state, created by state law. As such, they are not truly "sovereigns." Thus, the generally accepted rule is that political subdivisions of a state do not enjoy sovereign immunity and are only cloaked with immunity to the extent that the state sees fit to cloak them with immunity. Alaska follows this rule: political subdivisions in Alaska do not possess "blanket" immunity from suit [City of Fairbanks v. Schaible, 375 P2d 201 (Alaska 1962)].

Partial immunity from suit at the local government level is provided in AS 09.65.070(d). The main protection is the "discretionary function" provision of AS 09.65.070(d)(2). In this connection, a sharp distinction is drawn between "planning" and "operational" decisions in evaluating the exercise of discretion under AS 09.65.070(d)(2) [see e.g. Gates v. City of Tenakee Springs, 822 P2d 455 (Alaska 1991); Urethane Specialties v. City of Valdez, 620 P2d 683 (Alaska 1980)]. "discretionary acts are those which require `personal deliberation, decisions and judgment. . . .'" [Integrated Resources Equity Corp. v. Fairbanks North Star Borough, 799 P2d 295 (Alaska 1987)]. In addition, Alaska does not insulate even discretionary acts where the act itself violates established law. Thus, it must be concluded that political subdivisions of the State are not immune to damage claims under 362.

Moreover, immunity from suit in federal courts under the Eleventh Amendment does not extend to Municipalities, counties and other political subdivisions of a state [Lincoln County v. Luning, 133 US 529 (1890); Chicot County Drainage Dist. v. Baxter State Bank, 308 US 371 (1940)].

Accordingly, municipalities, boroughs, and other political subdivisions that are not the functional equivalent of a state agency are subject to liability for transgressions of the automatic stay in the same manner and to the same extent as a private party.
Update: BRA 94 amended § 106 ostensibly waiving sovereign immunity and the 11th amendment protection of states in bankruptcy cases. However, the U.S. Supreme Court decision in Florida v. Seminole Tribes of Florida, ___ US ___, 116 SCt 1114, 134 LEd2d 252 (1996) raises a serious question regarding the power of Congress to override the 11th amendment proscription on suits against states in federal courts. [For an in-depth discussion of sovereign immunity and the 11th amendment, one should read this 71-page decision, particularly the dissent by Justice Stevens (not exactly recommended as a late evening exercise).
SOVEREIGN IMMUNITY - A doctrine precluding the institution of a suit against the sovereign [government] without its consent. Though commonly believed to be rooted in English law, it is actually rooted in the inherent nature of power and the ability of those who hold power to shield themselves.

In England it was predicated on the concept that "the sovereign can do no wrong", a concept developed and enforced by - guess who? However, since the American revolution explictedly rejected this interesting idea, the American rulers had to come up with another rationale to protect their power. One they came up with is that the "sovereign is exempt from suit [on the] practical ground that there can be no legal right against the authority that makes the law on which the right depends." 205 U.S. 349, 353.

"[S]tatutes waiving the sovereign immunity of the United States must be`construed strictly in favor of the sovereign." McMahon v. United States, 342 U.S. 25, 27 (1951).

11 U.S.C. S 106, "Waiver of Sovereign Immunity," provides:

(a) A governmental unit is deemed to have waived sovereign immunity with respect to any claim against such governmental unit that is property of the estate and that arose out of the same transaction or occurrence out of which such governmental unit's claim arose.

The interest served by federal sovereign immunity (the United States' freedom from paying damages without Congressional consent)

Federal sovereign immunity is readily distinguishable from the states' immunity under the Eleventh Amendment and foreign governments' immunity under the Foreign Sovereign Immunities Act. The latter two doctrines allow one sovereign entity the right to avoid, altogether, being subjected to litigation in another sovereign's courts. Pullman Constr., 23 F.3d at 1169. Similar sovereignty concerns are not implicated by the maintenance of suit against the United States in federal court. Federal sovereign immunity has had such broad exceptions carved out of it that, as Pullman Construction concluded, "Congress, on behalf of the United States, has surrendered any comparable right not to be a litigant in its own courts." Id. In the present day, federal sovereign immunity serves merely to channel litigation into the appropriate avenue for redress, ensuring that "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." Pullman Constr. at 1168 (quoting Art. I, section 9, cl. 7).

Federal sovereign immunity is a defense to liability rather than a right to be free from trial.

The Supreme Court has ruled that in a case involving the government's sovereign immunity the statute in question must be strictly construed in favor of the sovereign and may not be enlarged beyond the waiver its language expressly requires. See United States v. Nordic Village, Inc., 503 U.S. 30, 33-35 (1992).