|
Article Excerpt
The United States has a range of governmental entities (including states, state agencies, counties, cities, municipalities, political subdivisions, municipal service districts, public universities and colleges, and school districts) that provide services to the public. During the provision of services, officials and employees of governmental entities sometimes digress from reasonable standards of care and are negligent. In other cases, entities may cause a nuisance while providing their services. Damages resulting from negligent activities or nuisances raise issues about responsibilities and who should pay for damages. Should governmental entities be treated similarly to persons and businesses for their negligence, or should some type of special dispensation in the form of immunity provide a defense against governmental liability? The question of whether governmental entities should incur liability when they cause damages presents lawmakers with choices. Through a discussion of sovereign, constitutional, and statutory immunities, two alternative responses are enumerated for addressing competing interests regarding governmental liability.
Sovereign immunity is inherent for governmental entities that are sovereigns. The immunity recognizes the legal superiority of the sovereign over the legal rights of private citizens (Bryson, 2005). In the United States, only the federal and state governments fall within this category. Under judicial rulings, "arms" of these governments also qualify for sovereign immunity, which include federal and state officials and agencies. The basis for sovereign immunity is not set forth in a constitutional provision, as weighty, antiimmunity arguments accompanied the founding of our country (Durchslag, 2002). Rather, the sovereignty enjoyed by the 13 independent colonies before the ratification of the federal Constitution established the principle of sovereign immunity. The belief that sovereigns needed limitations on modes of redress served as its basis (Jackson, 2003). Later, the Eleventh Amendment was enacted to clarify the immunities of states.
Nonsovereign governmental entities (including municipal governments, political subdivisions, and school districts)must rely on some other type of immunity or defense to avoid liability for activities of their officials and employees. Through state constitutional provisions and statutes enacted by legislatures, states have provided both sovereign and nonsovereign governmental entities defenses that give them immunity from liability. The immunity available to nonsovereigns is generally called governmental immunity (Brown-Graham, 2003). Simultaneously, the unfairness of not holding governments liable for damages they have caused has led to legislative waivers of immunity. Federal, state, and municipal tort claims acts reverse immunity by commanding that governmental entities be responsible for injuries from some activities. A complicated set of rules has developed concerning the immunity of governments for injuries caused by their officials and employees.
In the absence of a definitive federal constitutional grant of immunity, injured persons have sued government entities for damages and the entities have raised immunity defenses. An example is a lawsuit by 3,000 workers removing debris from the collapse of the twin towers of the World Trade Center (In re World Trade Center Disaster Site Litigation, 2006). The workers claim they are suffering injuries as a result of the negligence of New York City and other defendants in failing to monitor air quality at ground zero. While lower courts resolve most disputes about immunity, a few cases are heard by the U.S. Supreme Court. In 2006, the Court addressed the issue of sovereign immunity in three significant cases: (1) Northern Insurance Co. of New York v. Chatham County, (2) Central Virginia Community College v. Katz, and (3) United States v. Georgia. The sovereign immunity shield raised by governments as a defense against liability failed to defeat the three separate claims advanced by the litigants in these cases. These decisions suggest that the Court may be retreating from earlier pronouncements that championed sovereign immunity over individual rights (Bosworth, 2006). Furthermore, these judicial pronouncements highlight a continued tension between two alternative propositions regarding immunity for governmental entities.
Proposition 1: Given the range of contemporary governmental activities, governmental entities should be more accountable for their actions in the same manner as businesses and individuals.
Proposition 2: Legislatures need to provide governmental entities defenses against liability to avoid payment of monies in tort lawsuits.
Proposition 1 advances fairness. Innocent persons injured by governmental officials or employees should be compensated. In addition, accountability fosters the deterrence of future accidents and injuries. By enacting statutes whereby governmental entities are liable for their negligence, there is an incentive for the entity to use greater care in providing safe activities and services. Proposition 2 provides additional immunity protection. This proposition is espoused by persons who believe there is too much litigation and by persons wanting to rein in governmental expenditures. Legislative defenses mean that governmental entities may avoid lawsuits and will have fewer payouts to injured persons.
This paper analyzes the immunities and defenses that operate to defeat tort actions against governmental entities. Inherent sovereign immunity and the Eleventh Amendment are the starting points for considering immunity for governmental actions. Governmental immunity bestowed by state constitutional and statutory provisions offers nonsovereign governmental entities defenses against lawsuits. Further sets of defenses set forth in state legislative provisions supplement immunity in limiting the liability of governmental entities. The choices selected by legislatures have important consequences for governmental budgets and injured persons. As society changes, a legislature may revise defenses available to governmental entities. Under Proposition 1, legislation can be enacted to waive defenses so that injured persons can recover from governmental entities. If society supports Proposition 2, new statutes may be enacted to provide additional defenses for governmental entities. While recent Supreme Court decisions declined to recognize alleged immunity defenses so that governmental entities might incur liability for damages (supporting Proposition 1), new state legislation espouses defenses in support of Proposition 2.
Sovereign Immunity
With the formation of our country, sovereign immunity was believed to protect state governments from lawsuits. However, in 1793 this immunity belief was shattered by the Supreme Court by its ruling in Chisholm v. Georgia. The case involved a citizen of South Carolina suing the state of Georgia in federal court. The Supreme Court concluded that the state of Georgia could be sued. This result was contrary to the belief that the federal Constitution allowed states to bring suits but not be sued in federal courts. The Court's decision led to a renewed debate about sovereign immunity that culminated in the enactment of the Eleventh Amendment.
Over the years, courts have heard numerous arguments about the scope of sovereign immunity. The Supreme Court noted in Hans v. Louisiana (1890) that bringing suit against a state government "was a thing unknown to the law." The nature of a state's sovereignty means it is not amenable to being sued without its consent (Seminole Tribe of Florida v. Florida, 1996). In barring a lawsuit against the South Carolina State Ports Authority, the Supreme Court ruled that allowing the lawsuit would affront a state's dignity (Federal Maritime Commission v. South Carolina State Ports Authority, 2002). More recently, sovereign immunity of states was recognized as "a fundamental aspect of sovereignty which the State enjoyed before the ratification of the Constitution...." (Northern Insurance Co. of New York v. Chatham County, 2006). Immunity is supported by a need to preserve governmental monies, to allow elected officials to make unfettered decisions, and to reduce the judicial workload (Brown, 2001). Sovereign immunity insulates sovereign governments from liability, unless some other constitutional provision commands a different response.
Addition of a Federal Constitutional Basis
The Supreme Court's decision in Chisholm v. Georgia led to an immediate effort to overturn the decision. Congress sought to clarify the immunity available to states in the Eleventh...
|
