Sovereign immunity is enormously complicated. What it is, is a principle from which the founding fathers took from England that says a sovereign cannot be sued for damages without its consent. This principal goes way back, and also can be found in the 11th amendment to the United States Constitution. The language of the 11th amendment is rather arcane. That said, it has been interpreted by the courts over the years to mean that a sovereign cannot be sued for money damages without its consent. Why would a sovereign consent? It is a matter of simple politics actually. If a sovereign cannot be sued for money damages under any circumstances, governmental accountability would go out the window. Therefore, what government will do is that they will consent to be sued for money damages under certain circumstances. For example, at the federal level, there is the Federal Tort Claims Act. At the state level, many states will consent to be sued for variety of mistakes. Those state laws can differ from state to state, and if you are thinking about suing a state entity, you definitely want to check into those particular laws, especially since those laws may allow suits against the state entity for some purposes but not others. For example, Illinois has waived its sovereign immunity with respect to Americans with Disabilities Act claims in so far as it pertains to employment. However, they have not waived their sovereign immunity with respect to other matters.

The next question that arises is whether the federal government can force the state to waive its sovereign immunity even if it doesn’t want to. The answer to that question is that it depends. First, Congress must have an explicit statement in that law it has created saying that it intends to force the state to waive its sovereign immunity. Board of Trustees of the University of Alabama v. Garrett 531 U.S. 356, 364 (2001). However, that isn’t good enough by itself anymore. A further requirement is that the law has to be properly enforcing the equal protection clause of the 14th amendment to the U.S. Constitution. Id. Whether that law is properly enforcing the equal protection clause of the 14th amendment will depend upon whether the law is proportional to the harm being addressed against the affected class. Tennessee v. Lane 541 U.S. 509, 520 (2004). Then, the question arises as to how are people classified. Depending upon the class a person is in, that law has a greater or lesser chance of being upheld. That is, if a law is extremely comprehensive and the person is in a class of persons where discriminatory laws affecting that class are given very close scrutiny, then that comprehensive law is likely to be upheld as a proper enforcement of the 14th amendment. If that person is in a class of persons where a discriminatory law would be given wide berth, then a comprehensive law would likely to be not upheld as a proper enforcement of the 14th amendment. To put it in sovereign immunity terms, a forced waiver of sovereign immunity would not be upheld if the class of persons involved is a class that allows for wide berth for discriminatory laws. A forced waiver of sovereign immunity would be upheld if the class of persons involved is a class that does not allow for wide berth for discriminatory laws. Keep in mind, all laws discriminate in some ways.

Since this blog is all about the Americans with Disabilities Act, the question becomes what equal protection class are persons with disabilities in. Persons with disabilities are treated in a way unlike any other class of people for purposes of equal protection. That is, with respect to everybody else, regardless of the fact situation, a person is in a certain class or not. For example, racial classifications are a classification that receive strict scrutiny. That is, a law that discriminates on the basis of race would have a very high probability of being thrown out. In the sovereign immunity context, that would mean that a law addressing racial discrimination could be very comprehensive and be a proper enforcement of the 14th amendment. With respect to gender, that classification receives intermediate scrutiny. That is, a law that discriminates on the basis of gender, would have a good chance of being thrown out under the 14th amendment. In the sovereign immunity context, that would mean that a law addressing gender discrimination could be rather comprehensive and be a proper enforcement of the 14th amendment. With respect to everyone else, with one exception, they are in what is called the rational basis class. That is, a law that discriminates against that class of persons would be given a very wide berth and likely to be upheld. In the sovereign immunity context, that means it would be very unlikely that a force waiver of sovereign immunity would be allowed.

As noted above, there is one exception to how people are classified under the equal protection jurisprudence. That exception are persons with disabilities. People with disabilities, as far as I know, are the only class of people whose classification under equal protection jurisprudence varies with the facts. That is, with respect to employment, persons with disabilities are in the rational basis class (the lowest class for equal protection jurisprudence). That means, with respect to sovereign immunity the Americans with Disabilities Act was deemed too comprehensive to address the harms affected by the class of people involved, i.e. persons with disabilities. In other words, the Supreme Court in Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), held that a forced waiver of sovereign immunity was not going to work with respect to employment claims filed against the sovereign (state entities). What this means, is that if you are filing an employment discrimination claim against a state entity, you must check your state statute to see if the state has waived its sovereign immunity with respect to such claims.

What about other claims? Often times, a claim against a state or governmental entity has nothing to do with employment at all. Rather, under title II of the Americans with Disabilities Act, as we have discussed in various places in this blog, a governmental entity must have its programs and activities accessible to persons with disabilities. What if they screw up? Can they be sued for damages even if they are a state entity and they have not consented to being sued? The answer to this question is that it depends on the facts. That is, in Tennessee v. Lane, 541 U.S. 509 (2004), the U.S. Supreme Court held that sovereign immunity was properly waived with respect to the fundamental right of accessing the courts. Id. at 533-534. A reading of that case also reveals that an argument can be made for forced waiver of sovereign immunity with respect to other rights as well, such as rights involving basic constitutional guarantees, basic rights, or other fundamental rights. Therefore, if you are thinking about suing a state entity for damages for disability discrimination with respect to their programs and activities under title II of the Americans with Disabilities Act, you have to ask yourself two questions. First, is a right involving basic constitutional guarantees ( Id. at 522) basic rights ( Id. at 529), or other fundamental rights ( Id. at 524, 534), involved? Second, if not, has the state waived its sovereign immunity?

How do you know if a fundamental right, a right affecting basic constitutional guarantees, or a basic right is involved? You don’t. That said, the Supreme Court in Tennessee v. Lane did mention that some of the fundamental rights that states have limited for people with disabilities included the right to vote, the right to marry, and the right to serve as jurors ( Id. at 524). They also noted the unconstitutional treatment of persons with disabilities in a variety of other settings such as unjustified commitment, abuse neglect of persons with disabilities committed to the state mental health hospitals, and irrational discrimination in zoning decisions Id. at 524-25). They also noted a pattern of unequal treatment in the administration of many kinds of public services, programs, and activities including such things as the penal system, public education, and voting ( Id. at 525).

Before proceeding further, it needs to be noted that a sovereign can most certainly be sued regardless of whether they consent to a waiver of sovereign immunity if the relief being sought is injunctive relief ( See Board of Trustees of the University of Alabama 531 U.S. at 376 (Justice Kennedy and Justice O’Connor concurring). Also, municipalities are not sovereign and therefore they can be sued for money damages regardless of their consent (see Id.).

What about a County? The answer to that question, is not so simple. The answer is going to depend upon whether the county is an arm of the state. If the county is an arm of the state, then the principles of sovereign immunity as discussed above are going to apply to it as if it was a state entity. If it is not an arm of the state, then since it is not a sovereign, it, like municipalities, could be sued for money damages for violating federal law, such as the Americans with Disabilities Act.

How do you know when an entity may be an arm of the state? A case that answers this question is Ross v. Jefferson County Department of Health _ F.3d _, 2012 WL 4054460 (11th Cir. September 17, 2012). In this case, a former employee brought an employment discrimination suit against the Jefferson County Department of Health alleging violations of the Americans with Disabilities Act. The Jefferson County Department of public health defended on the grounds that they were entitled to sovereign immunity. The District Court agreed and the plaintiff appealed. The 11th Circuit affirmed the ruling of the district court. In the 11th circuit, whether a governmental entity is an arm of the state depends on four factors: 1) how does state law define the entity?; 2) what degree of control does that state maintain over the entity?; 3) where does the entity get its funds from?; and 4) who is responsible for judgments against the entity? With respect to the Jefferson County Health Department, it had a unique set up. In Alabama, the authority of the Jefferson County Health Department was derived directly from the state in law gave it its marching orders as to what it was supposed to do. Also, the state board of health supervised and controlled the County board of health, County health officers and all public health work. In fact, the state health officer in Alabama approved and could remove the County health officer. There were other factors as well, many of which would probably be found in any County. Finally, the Jefferson County Board of Health historically has been treated as an arm of the state.

A couple of things to keep in mind. First, counties may be set up very differently from state to state. Having lived in Illinois for many years prior to having moved to Georgia, it does not seem that Cook County, Illinois for example, would have a similar set of facts as to those faced by the Jefferson County Board of Health. Cook County, for example, has its own code, its own elected leaders, a budget of considerable size and considerable autonomy. This is not to say of course, that Cook County is not an arm of the state (that would have to be researched), because it is going to depend upon how the Seventh Circuit evaluates when an entity is an arm of the state. It is also going to depend upon very specific statutes pertaining to Cook County that the state of Illinois has. Finally, it is also going to depend upon the autonomy that the entity has. For example,Cook County pays damages out of its own budget. Again, the purpose is not to pick on Cook County and there are most certainly a bunch of facts out there that would influence the thinking whether they are an arm of the state one-way or the other. My only purpose is by way of illustration to show that different counties in different states may have very different situations.

In short, sovereign immunity is terribly complicated. Competent legal counsel is essential. Whether it applies is going to depend on very specific facts as well as upon state statutes and what rights are involved.

6 Responses to Sovereign immunity and persons with disabilities

http://www.ca11.uscourts.gov/opinions/ops/201114258.op2.pdf

for reasons that are not clear, the 11th circuit on its own motion reconsidered the prior opinion. The opinion that reconsidered their prior opinion is the link above. A review of that decision, as far as I can tell, reveals no difference between the two opinions except for the fact that instead of using “arm of the state,” the court now refers to “a state agent” or, “state agency”. The substance of the two opinions is the same

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