Definitions

Sovereign immunity

Sovereign immunity

Sovereign immunity, or crown immunity, is a type of immunity that in common law jurisdictions traces its origins from early English law. Generally speaking it is the doctrine that the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution; hence the saying, the king (or queen) can do no wrong. In many cases, the government has waived this immunity to allow for suits; in some cases, an individual, such as an attorney general, may technically appear as defendant on the state's behalf.

In constitutional monarchies

In a constitutional monarchy, such as the United Kingdom, the sovereign is the historical origin of the authority which creates the courts. Thus the courts had no power to compel the sovereign to be bound by the courts, as they were created by the sovereign for the protection of his or her subjects. This position was drastically altered for the United Kingdom by the Crown Proceedings Act 1947 which made the government generally liable, with limited exceptions, in tort and contract. Even before this time it was possible to claim against the Crown with the Attorney-General's fiat (i.e. permission.) This was called a petition of right. Alternatively, Crown servants could be sued in place of the Crown (and the Crown as a matter of course paid.) Further, Mandamus and Prohibition were always available against Ministers because they derive from the prerogative. However, even after the Crown Proceedings Act, 1947, lawsuits against the Sovereign in his or her personal, private capacity are still inadmissible in British law.

In Malaysia, an amendment to the constitution in 1993 made it possible to bring proceedings against the King or any Ruler of a component state in the Special Court. Prior to 1993, a Ruler, in their personal capacity, is immune from any proceedings brought against them.

In the United States

Federal sovereign immunity

In the United States, the federal government has sovereign immunity and may not be sued unless it has waived its immunity or consented to suit. The United States has waived sovereign immunity to a limited extent, mainly through the Federal Tort Claims Act, which waives the immunity if a tortious act of a federal employee causes damage, and the Tucker Act, which waives the immunity over claims arising out of contracts to which the federal government is a party. The Federal Tort Claims Act and the Tucker Act are not as broad waivers of sovereign immunity as they might appear, as there are a number of statutory exceptions and judicially fashioned limiting doctrines applicable to both. Title 28 U.S.C. § 1331 confers federal question jurisdiction on district courts, but this statute has been held not to be a blanket waiver of sovereign immunity on the part of the federal government.

State sovereign immunity

In Hans v. Louisiana, the Supreme Court of the United States held that the Eleventh Amendment re-affirms that states possess sovereign immunity and are therefore immune from being sued in federal court without their consent. In later cases, the Supreme Court has strengthened state sovereign immunity considerably. In Blatchford v. Native Village of Noatak, the court explained that
we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their sovereignty intact; that the judicial authority in Article III is limited by this sovereignty, and that a State will therefore not be subject to suit in federal court unless it has consented to suit, either expressly or in the "plan of the convention."
(Citations omitted). In Alden v. Maine, the Court explained that while it has
sometimes referred to the States’ immunity from suit as “Eleventh Amendment immunity[,]” [that] phrase is [a] convenient shorthand but something of a misnomer, [because] the sovereign immunity of the States neither derives from nor is limited by the terms of the Eleventh Amendment. Rather, as the Constitution’s structure, and its history, and the authoritative interpretations by this Court make clear, the States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today (either literally or by virtue of their admission into the Union upon an equal footing with the other States) except as altered by the plan of the Convention or certain constitutional Amendments.
Writing for the court in Alden, Justice Anthony Kennedy argued that in view of this, and given the limited nature of congressional power delegated by the original unamended Constitution, the court could not "conclude that the specific Article I powers delegated to Congress necessarily include, by virtue of the Necessary and Proper Clause or otherwise, the incidental authority to subject the States to private suits as a means of achieving objectives otherwise within the scope of the enumerated powers."

However, a "consequence of [the] Court’s recognition of pre-ratification sovereignty as the source of immunity from suit is that only States and arms of the State possess immunity from suits authorized by federal law." Northern Ins. Co. of N. Y. v. Chatham County (emphases added). Thus, cities and municipalities lack sovereign immunity, Jinks v. Richland County, and counties are not generally considered to have sovereign immunity, even when they "exercise a 'slice of state power.'" Lake Country Estates, Inc. v. Tahoe Regional Planning Agency.

Exceptions and abrogation

There are exceptions to the doctrine of sovereign immunities derived from the 11th amendment:

Suits brought by the United States

Because the U.S. is a superior sovereign, it may need to bring suit against a state from time to time. If the U.S. didn't have an exception to the sovereign immunity doctrine, the U.S. would have to sue a state in its own court system which would be a conflict-of-interest for the state court.

Suits brought by another state

Similar to the U.S. v. State exclusion above, a state may also sue another state in the federal court system. Again, there would be a conflict of interest if either state's court system tried the case. Instead, the federal court system provides a neutral forum for the case.

Under Article III, Section 2 of the United States Constitution, the Supreme Court of the United States has original jurisdiction over cases between states. Congress, if it so chooses, may grant lower federal courts concurrent jurisdiction over cases between states. However, as of yet, Congress has not chosen to do so. Thus, the United States Supreme Court currently has original and exclusive jurisdiction over cases between state governments.

Suits filed against state officials under the "stripping doctrine"

The "stripping doctrine" permits a state official who used his or her position to act illegally to be sued in his or her individual capacity. In other words, once a public official has acted illegally, they are theoretically stripped of their position's power and are eligible to be sued as individuals. The Court has openly called this "stripping doctrine" a legal fiction. Therefore, a citizen may sue an official under this "stripping doctrine" and get around any sovereign immunity that that official might have held within his or her position within a state.

When a citizen uses this exception, they can't include the state in the suit: they have to list specifically the official's name. They also can't seek damages from the state, because they can't list the state as a party. However, the citizen can seek prospective, or future, relief by asking the court to direct the future behavior of the official.

For example, Ex parte Young allows federal courts to enjoin the enforcement of unconstitutional state (or federal) statutes on the theory that "immunity does not extend to a person who acts for the state, but [who] acts unconstitutionally, because the state is powerless to authorize the person to act in violation of the Constitution." Althouse, Tapping the State Court Resource, 44 Vand. L. Rev. 953, 973 (1991). Pennhurst State School and Hospital v. Halderman (465 U.S.) ("the authority-stripping theory of Young is a fiction that has been narrowly construed"); Idaho v. Coeur d'Alene Tribe of Idaho ("Young rests on a fictional distinction between the official and the State"). The Young doctrine was narrowed by the court in Edelman v. Jordan, which held that relief under Young can only be for prospective, rather than retrospective relief; the court reasoned that the Eleventh Amendment's protection of state sovereignty requires the state's coffers to be shielded from suit. Prospective relief includes injunctions and other equitable orders, but would rarely include damages. This limitation of the Young doctrine "focused attention on the need to abrogate sovereign immunity, which led to the decision two years later in Fitzpatrick." Althouse, Vanguard States, supra, at 1791 n.216

For more details, "constitutional torts" 42 U.S.C. § 1983 allows state officials to be sued in their individual or official capacities, a principle which was demonstrated again in Brandon v. Holt, 469 U.S. 464 (1984). Furthermore, the Bankruptcy Clause of the Constitution strips some of the sovereign immunity of the states, which was invoked in Central Virginia Community College v. Katz. The Court held that state sovereign immunity was not implicated by the exercise of in rem jurisdiction by bankruptcy courts in voiding a preferential transfer to a state.

Suits brought against a political subdivision of a state

Another exception to the sovereign immunity doctrine is that political subdivisions of a state can be sued. Unlike a state, a county or municipality can't claim sovereign immunity even if they share some of the state's Constitutionally defined power.

It's not easy to define a political subdivision, but factors that help differentiate a state from a political subdivision include: the source of the subdivision's funding, type of function the entity performs, the degree of control the state has over the subdivision, or how the state has defined and established the subdivision.

Suits as to which Congress has abrogated the states' Eleventh Amendment immunity

The federal government and nearly every state have passed tort claims acts allowing them to be sued for the negligence, but not intentional wrongs, of government employees. The common-law tort doctrine of respondeat superior makes employers generally responsible for the torts of their employees. In the absence of this waiver of sovereign immunity, injured parties would generally have been left without an effective remedy. See Brandon v. Holt.

Under the abrogation doctrine, while Congress cannot use its Article I powers to subject states to lawsuits in either federal courts, Seminole Tribe v. Florida, or a fortiori its own courts, Alden, supra, it can abrogate a state's sovereign immunity pursuant to the powers granted to it by §5 of the Fourteenth Amendment, and thus subject them to lawsuits. Seminole, supra; Fitzpatrick v. Bitzer. However:

  • The court requires "a clear legislative statement" of intent to abrogate sovereignty, Blatchford, supra; Seminole, supra.
  • Because Congress' power under §5 is only "the power 'to enforce,' not the power to determine what constitutes a constitutional violation," for the abrogation to be valid, the statute must be remedial or protective of a right protected by the Fourteenth Amendment and "[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end," City of Boerne v. Flores. But "[t]he ultimate interpretation and determination of the Fourteenth Amendment's substantive meaning remains the province of the Judicial Branch." Kimel v. Florida Board of Regents. Simply put: "Under the City of Boerne doctrine, courts must ask whether a statutory remedy has 'congruence and proportionality' to violations of Section 1 rights, as those rights are defined by courts." Althouse, Vanguard States, Laggard States: Federalism & Constitutional Rights, 152 U. Pa. L. Rev. 1745, 1780 (2004)
  • States can expressly waive sovereign immunity, but do not do so implicitly simply by participating in a commercial enterprise where Congress subjects market participants to lawsuits. College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board.

Further reading

Michael J. Kelly, Nowhere to Hide: Defeat of the Sovereign Immunity Defense for Crimes of Genocide & The Trials of Slobodan Milosevic and Saddam Hussein (Peter Lang 2005).

References

See also

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