Chapter 5.1 State Sovereign Immunity - Generally

PRACTITIONER NOTE:

The discussion contained in this chapter is general in nature.  Whether a state official is immune from suit or damages will depend on the applicable state or federal law, court interpretations of those laws, the nature of the underlying act, and the facts of the case.  Practitioners are strongly encouraged to consult with legal counsel to understand the laws and standards that apply for their particular jurisdiction.


State Sovereign Immunity – Generally

State sovereign immunity is comprised of two general categories: (1) states are a sovereign entity in the federal system and therefore may be immune from suit in federal court pursuant to the Eleventh Amendment; and (2) absent a waiver, states are not liable for their actions and are not subject to suit in its own courts without consent.  See, Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249 (3rd Cir. 2010) (state sovereign immunity extends beyond the literal text of the Eleventh Amendment to comprise more than just immunity from suit in federal court, but also immunity from liability). Unfortunately, the term “state sovereign immunity” is frequently used imprecisely and interchangeably by courts to refer to both parts, i.e., the immunity from suit in federal court and the state’s immunity from liability.  The first immunity is so-called “Eleventh Amendment immunity” and it is an outgrowth of the states’ standing at the time of the adoption of the federal constitution.  It has two sub-parts: (1) states may not be sued in federal court absent their consent or abrogation of Eleventh amendment immunity by Congress; and (2) Congress has no authority to waive a state’s sovereign immunity such that a state is subject to suit in its own courts.  See generally Alden v. Maine, 527 U.S. 706 (1999).  The second form of immunity (immunity from liability) is sometimes referred to as “absolute immunity” and derives from a state’s standing as a quasi-sovereign entity in its own right. See, e.g., Ala. Dept. of Corr. v. Merritt, 74 So. 3d 1 (Ala. Ct. App. 2010).  A state legislature may affirmatively waive immunity, may waive immunity for certain types of actions (e.g., torts or contracts), or may maintain immunity.  See Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006) (Use of provisions in various statutes, including one creating an interstate compact agency, stating that such agencies may “sue and be sued” did not, “merely by using such phrases, clearly waive governmental immunity from suit and instead merely addressed such governmental entity’s capacity to engage in the activities encompassed in those phrases.”).

In the context of the Eleventh Amendment immunity, a state’s immunity is not absolute. The U.S. Supreme Court has recognized three circumstances in which an individual may sue a state in federal court. First, Congress may abrogate the states’ immunity by authorizing such a suit to enforce a constitutional right, such as the equal protection clause of the Fourteenth Amendment.  The Civil Rights Act of 1964 and the Americans with Disability Act are examples of acts where Congress has explicitly waived state sovereign immunity for purposes of suit in federal court.  Second, a state may voluntarily waive immunity by consenting to suit.  See Meyers v. Texas, 410 F.3d 236 (5th Cir. 2005).  Voluntary consent may be explicit in state statute or a state’s constitution, or inferred by action if (1) a state voluntarily invokes federal court jurisdiction; (2) a state makes a clear declaration that it intends to submit itself to federal court jurisdiction.  A waiver of the Eleventh Amendment immunity by state officials must be permitted by the state constitution, or state statutes and applicable court decisions must explicitly authorize such a waiver by the state officials since they cannot waive immunity unless authorized to do so.  See Lapides v. Bd. of Regents, 251 F.3d 1372 (11th Cir. 2001).  Unless waived, Eleventh Amendment immunity bars a §1983 lawsuit against a state agency or state officials in their official capacities even if the entity is the moving force behind the alleged deprivation of the federal right.  See Kentucky v. Graham, 473 U.S. 159, 169 (1985); Larsen v. Kempker, 414 F.3d 936, 939 n.3 (8th Cir. 2005).  Third, an individual may bring suit against a state official seeking injunctive relief to stop future continuing violations of federal law. See Ex Parte Young, 209 U.S. 123 (1908).

In the context of state immunity from liability, a state’s immunity is presumed absent a specific or necessary waiver.  Stated differently, immunity in this context is assumed absent affirmative evidence that the state has agreed to submit to the jurisdiction of its own courts and be held liable for the actions of its agencies, instrumentalities, officers, and employees.  The most common evidence of waiver is in the form of a statute that defines the circumstances under which the state will submit to court jurisdiction and the types of injuries for which it is willing to be held liable. See Texans Uniting for Reform and Freedom v. Saenz, 319 S.W.3d 914 (Tex. App. 2010).  If a state chooses by legislation to waive its immunity, a court strictly construes the waiver in favor of the state.  Bd. of Educ. of Baltimore Cty. v. Zimmer-Rubert, 973 A.2d 233, 240 (Md. 2009) (“As such, ‘[w]hile the General Assembly may waive sovereign immunity either directly or by necessary implication, this Court has emphasized that the dilution of the doctrine should not be accomplished by judicial fiat.’”).  Sovereign immunity is applicable to the state, its agencies, its officers and employees, and its instrumentalities unless the legislature has waived the immunity either directly or by necessary implication.  See, e.g., Doe v. Bd. of Regents of Univ. of Neb., 788 N.W.2d 264 (Neb. 2010) (a suit against a state agency is a suit against the state).  Thus, immunity may extend to compact-created commissions if the compact statute evidences a clear intent by the states to extend their immunity as a state instrumentality. Lizzi v. Alexander, 255 F.3d 128, 132 (4th Cir. 2001); see also Morris v. Wash. Metro. Area Transit Auth., 781 F.2d 218, 219 (D.C. Cir. 1986) (“Inter-jurisdictional compact agency was ‘cloaked in sovereign immunity’ because the signatory states to the Washington Metro Area Transit Authority Compact conferred their respective sovereign immunities upon WMATA); accord Proctor v. Wash. Metro. Area Transit Auth., 990 A.2d 1048 (Md. 2010).

State liability immunity, as distinguished from immunity from federal court jurisdiction, can be broken into two categories: (1) absolute immunity; and (2) qualified immunity.  Briefly, absolute immunity completely shields the state and its officials from civil liability. For example, absolute immunity shields a judge or prosecutor for their judicial or prosecutorial acts, but not for their administrative acts.  However, qualified immunity may shield a judge or prosecutor for non-judicial acts under certain circumstances.  Under the doctrine of qualified immunity, government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Gross v. Pirtle, 245 F.3d 1151, 1155 (10th Cir. 2001) (citing Malley v. Briggs, 475 U.S. 335, 341(1986)). Qualified immunity will only relieve a defendant of individual liability. Harlow, 457 U.S. at 818.


PRACTITIONER NOTE:

Many states have waived their sovereign immunity for tort claims arising out of negligent acts.  They have also waived immunity for breach of contract.  In place of sovereign immunity, most states have established liability risk funds that will pay for the defense of a state official and any monetary damages that are awarded, or indemnify a state employee or official who pays such sums.  These risk funds may have caps set by the legislature that limit the amount of money a state will pay.  In some states, county and municipal employees fall under the state risk fund. In other states, counties and municipalities must provide their own insurance or risk sharing.  It is of note that states generally do not cover the willful and wanton conduct of state officials; specifically, states do not cover conduct that is intentional and injurious.  In such cases, the state official is personally obligated.


Notably, state sovereign immunity is generally construed such that private entities acting on behalf of the state do not enjoy the immunity of the state. Thus, for example, in Del Campo v. Kennedy, the court rejected the immunity claims by a private contractor hired to administer a pre-trial diversion program. 517 F.3d 1070 (9th Cir 2008) The court noted the following:


"The law makes clear that state sovereign immunity does not extend to private entities.  The district court was therefore right to let this suit proceed. To be clear: Although we hold that private entities cannot be arms of the state, we emphatically do not hold that they cannot act under color of state law for the purposes of 42 U.S.C. § 1983 and similar statutes. The two concepts are distinct."


Moreover, an incorporated entity with the power to sue in its own name and which is not funded by state appropriations but is operated from ‘self-generated revenues’ is not subject to Eleventh Amendment immunity barring suits against a state because the state is not obligated to pay any debts of the agency.  See Simmons v. Sabine River Auth. of La., 823 F. Supp .2d 420 (W.D. La. 2011), Frazier v. Pioneer American LLC, 455 F.3d 542, 547 (5th Cir. 2006)