Sovereign immunity, or crown immunity, is a type of immunity that in common law jurisdictions traces its origins from early English law. Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals rather than through legislative statutes or executive In Law, jurisdiction (from the Latin ius iuris meaning "law" and dicere meaning "to speak" is the practical Authority English law is the legal system of England and Wales, and is the basis of Common law legal systems used in most Commonwealth countriesand the 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. A state is a political association with effective Sovereignty over a geographic Area and representing a Population. In law a lawsuit is a civil action brought before a Court in which the party commencing the action the Plaintiff, seeks a legal or equitable remedy The term criminal law, sometimes called penal law, refers to any of various bodies of rules in different Jurisdictions whose common characteristic is the potential 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 most Common law jurisdictions the Attorney General, or Attorney-General, is the main legal advisor to the government and in some jurisdictions may in addition
Contents |
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. A constitutional monarchy, or a limited monarchy, is a form of Constitutional Government, wherein either an elected or hereditary Monarch is The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom, the UK or Britain,is a Sovereign state located 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. The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom, the UK or Britain,is a Sovereign state located The Crown Proceedings Act 1947 (1947 c 44 is an Act of Parliament passed by the Parliament of the United Kingdom that allowed for the first time Civil Tort law is the name given to a body of law that creates and provides remedies for civil wrongs that do not arise out of Contractual duties A contract is an exchange of promises between two or more parties to do or refrain from doing an act which is enforceable in a court of law 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. The Petition of Right 1628 was produced by the English Parliament in the run-up to the English Civil War. Alternatively, Crown servants could be sued in place of the Crown (and the Crown as a matter of course paid. Throughout the Commonwealth realms The Crown is an abstract metonymic concept which represents the legal authority for the existence of any government ) Further, Mandamus and Prohibition were always available against Ministers because they derive from the prerogative. A writ of mandamus or simply mandamus, which means "we command" in Latin, is the name of one of the Prerogative writs in the Common A writ of prohibition is a Prerogative writ sought in a Court of appeal, usually requesting a ruling from the appellate court that a lower court be prohibited from A minister or a secretary is a Politician who holds significant public office in a national or regional Government. A Prerogative is an exclusive Legal right given from a Government or State and invested in an individual or group the content of which is separate 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. For the biogeographical region see Malesia Malaysia (məˈleɪʒə or /məˈleɪziə/ is a country that consists of thirteen states and The Constitution of Malaysia, comprising 181 articles is the supreme Law of Malaysia. Year 1993 ( MCMXCIII) was a Common year starting on Friday (link will display full 1993 Gregorian calendar) The Yang di-Pertuan Agong is the highest ranking office created by the constitution of the federation of Malaysia Prior to 1993, a Ruler, in their personal capacity, is immune from any proceedings brought against them. [1]
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 of America —commonly referred to as the The federal government of the United States is the central United States Governmental body established by the United States Constitution. Civil procedure is the body of law that sets out the process that Courts will follow when hearing cases of a civil nature (a " Civil action " as opposed to Justiciability refers to the ability of a text to take effect as a legal rule or to create legal effects An advisory opinion is an opinion issued by a Court that does not have the effect of resolving a specific Legal case, but merely advises on the constitutionality or For other senses of this word see Standing (disambiguation. In the Common law, and under many Statutes standing or In United States law, ripeness refers to the readiness of a case for Litigation; " a claim is not ripe for adjudication if it rests upon contingent future In United States law, a matter is moot if further legal proceedings with regard to it can have no effect or events have placed it beyond the reach of the law In United States law, a ruling that a matter in controversy is a political question is a statement by a federal court declining to rule in a case because In Law, jurisdiction (from the Latin ius iuris meaning "law" and dicere meaning "to speak" is the practical Authority Subject-matter jurisdiction is the authority of a Court to hear cases of a particular type or cases relating to a specific subject matter Federal question jurisdiction is a term used in the United States law of Civil procedure to refer to the situation in which a United States federal court In United States law, diversity jurisdiction is a concept used in Civil procedure to refer to the situation in which a U Supplemental jurisdiction is the authority of United States federal courts to hear additional claims substantially related to the original claim even though the court would lack In the United States, removal jurisdiction refers to the right of a Defendant to move a Lawsuit filed in state Court to the Federal district Amount in controversy (sometimes called jurisdictional amount) is a term used in United States Civil procedure to denote a requirement that persons seeking The US Class Action Fairness Act of 2005, 28 USC Sections 1332(d 1453 and 1711-1715 expanded federal jurisdiction over many large Class-action Personal jurisdiction in United States law refers to a court's power over a particular defendant ( In personam jurisdiction or an item of property Jurisdiction in rem ( Latin, power about or against "the thing") is a legal term describing the power a Court may exercise Minimum contacts is a term used in the United States Law of Civil procedure to determine when it is appropriate for a Court in one state Political federalism is a Political philosophy in which a group of members are bound together (Latin foedus, covenant) with a governing The Erie Doctrine provides that a federal court sitting in diversity jurisdiction over a state law claim must apply state substantive common law in resolving the dispute An abstention doctrine is any of several doctrines that a Court of law might (or in some cases must apply to refuse to hear a case when hearing the case would potentially intrude The Abrogation doctrine is a constitutional law doctrine expounding when and how the Congress may waive a state's Sovereign immunity and subject it to lawsuits The Rooker-Feldman doctrine is a rule of Civil procedure enunciated by the United States Supreme Court in two cases Rooker v The adequate and independent state ground doctrine is a doctrine of United States law governing the power of the U The United States of America —commonly referred to as the The federal government of the United States is the central United States Governmental body established by the United States Constitution. 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. Tort law is the name given to a body of law that creates and provides remedies for civil wrongs that do not arise out of Contractual duties Through the Tucker Act ( March 3, 1887, ch 359,) the United States government has waived its Sovereign immunity from lawsuits 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. In Law, jurisdiction (from the Latin ius iuris meaning "law" and dicere meaning "to speak" is the practical Authority
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. Hans v Louisiana, 134 US 1 (1890 was a decision of the United States Supreme Court determining that the Eleventh Amendment prohibits the The Supreme Court of the United States is the highest judicial body in the United States and leads the federal judiciary. The Eleventh Amendment ( Amendment XI) of the United States Constitution was passed by the U 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. Alden v Maine, 527 US 706 (1999 was a United States Supreme Court case which held that Article One of the U 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. Anthony McLeod Kennedy (born July 23, 1936) has been an Associate Justice of the U "
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). Northern Insurance Company of New York v Chatham County, 547 U 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. In the Common law tradition legal fictions are suppositions of fact taken to be true by the Courts of Law, but which are not necessarily 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. Ex parte Young, 209 US 123 (1908 was a United States Supreme Court case that allowed suits in federal courts against officials acting on behalf of states " 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. Edelman v Jordan, 415 US 651 (1974 was a United States Supreme Court case that held that because of the Sovereign immunity recognized in Prospective relief includes injunctions and other equitable orders, but would rarely include damages. An injunction is an Equitable remedy in the form of a Court order, whereby a party is required to do or interact with in certain ways all right or to refrain from In Law, damages refers to the money paid or awarded to a Claimant (England Pursuer (Scotland or Plaintiff (US following a successful 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. The Civil Rights Act of 1871, also known as the Ku Klux Klan Act of 1871, is an important federal statute in force in the United States. 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. Central Virginia Community College v Katz, 546 US 356 ( 2006) is a United States Supreme Court case holding that the Bankruptcy Clause 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
- See also: Congressional power of enforcement
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. A Congressional power of enforcement is included in a number of amendments to the United States Constitution. Negligence (Lat negligentia from negligere to neglect literally "not to pick up" is a legal concept in the Common law legal systems usually used to The common-law tort doctrine of respondeat superior makes employers generally responsible for the torts of their employees. Tort law is the name given to a body of law that creates and provides remedies for civil wrongs that do not arise out of Contractual duties " Respondeat superior " ( Latin: "let the master answer" is a Legal doctrine which states that in many circumstances an Employer is 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. The Abrogation doctrine is a constitutional law doctrine expounding when and how the Congress may waive a state's Sovereign immunity and subject it to lawsuits Seminole Tribe of Florida v Florida, 517 US 44 (1996 was a United States Supreme Court case which held that Article One of the U Seminole, supra; Fitzpatrick v. Bitzer. Fitzpatrick v Bitzer, 427 US 445 ( 1976) was a United States Supreme Court decision that determined that the U 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. City of Boerne v Flores, 521 US 507 ( 1997) was a Supreme Court case concerning the scope of Congress's enforcement power 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. Kimel v Florida Board of Regents, 528 US 62 (2000 was a United States Supreme Court case that determined that the Congress's enforcement 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. College Savings Bank v Florida Prepaid Postsecondary Education Expense Board, 527 U
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
Command responsibility, sometimes referred to as the Yamashita standard or the Medina standard, is the doctrine of hierarchical accountability in cases of Impeachment is the first of two stages in a specific process for a legislative body to forcibly remove a Government official Diplomatic immunity is a form of legal immunity and a policy held between governments which ensures that Diplomats are given safe passage and are considered notDapyx Software network: MP3 Explorer | Ebook Manager | Zenithic