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Local Government Immunity Defense:

Litigation Challenges Navigating Types of Immunities, Legal Principles, Statutory Construction, and Section 1983 Qualified Immunity

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WEDNESDAY, FEBRUARY 1, 2012

Presenting a live 90-minute webinar with interactive Q&A

Terrence L. Dunst, Shareholder, Bakke Norman, Baldwin, Wis.

C. David Dietz, Assistant Ramsey County Atty, Ramsey County Attorney's Office, St. Paul, Minn.

Robin A. Melvin, Shareholder, Graves Dougherty Hearon & Moody, Austin, Texas

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Governmental Immunity: Challenges in

Bringing or Defending Actions Against

Local Government

C. David Dietz

Assistant Ramsey County Attorney

St. Paul, Minnesota

Terry Dunst

Bakke Norman, S.C.

Baldwin, Wisconsin

Robin A. Melvin

Graves, Dougherty, Hearon & Moody, P.C.

Austin, Texas

5

Terry Dunst

715.684.4545 x5215

[email protected]

6

Introduction

• Three Main Areas

– History of Governmental Immunity

– Development of Common Law & Statutory

Governmental Immunity

– Types of Governmental Immunity Today

7

It Begins with the Doctrine of

Sovereign Immunity

The King Can Do No Wrong

V.

8

Sovereign Immunity

• Sovereign immunity is a

“government's immunity from being

sued in its own courts without its

consent.” Black's Law Dictionary (8th ed. 2004).

• Doctrine stems from the concept that

the “King can do no wrong.” Gregory C.

Sisk, Litigation With The Federal Government, pg 104,

Foundation Press, NY (2000).

9

Sovereign Immunity: Justifications

• King appointed by God, thus not subject to

earthly authority, such as parliament or

courts (“divine right”).

• King makes the laws, creates the courts,

gives authority to the law makers; king “is

the law.”

10

Early Adoption of Sovereign

Immunity in the United States • How and Why the U.S. adopted an English doctrine

based on the rights of the Monarchy „is one of the mysteries of legal evolution.‟ Borchard, Government Liability in Tort, 34 Yale L.J. 1, 4 (1924) (quoted by Holytz v. City of Milwaukee, 17 Wis.2d 26, 30-31, 115 N.W.2d 618, 620 (1962).

Nevertheless…

• “The universally received opinion is, that no suit can be commenced or prosecuted against the United States; that the judiciary act does not authorize such suits.” Cohens v. State of Virginia, 19 U.S. 264, 411-412, 1821 WL 2186, 59 (U.S.Va. (U.S.1821).

11

1797 - 11th Amendment Clarifies that

Sovereign Immunity Applies to the

Several States

• “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.C. Const. Amend. XI (proposed in 1794, ratified Dec. 4, 1797).

• “The very object and purpose of the eleventh amendment were to prevent the indignity of subjecting a state to the coercive process of judicial tribunals at the instance of private parties.” Ex parte Ayers, 123 U.S. 443, 505 (U.S.Va.1887).

• Construed to also apply to citizens of the state itself, Hans v. Louisiana, 134 U.S. 1, 15, 10 S.Ct. 504, 507 (U.S.1890).

12

Justification for Adoption of

Sovereign Immunity

• “Divine right” of monarchy??? Not

applicable to U.S.

– “It would seem somewhat anomalous that

American courts should have adopted the

sovereign immunity theory in the first place

since it was based upon the divine right of

kings.” Holytz v. City of Milwaukee, 17 Wis.2d

26, 30-31, 115 N.W.2d 618, 620 (1962).

13


Sovereign Immunity

• Early Supreme Court Cases Hold States Retain Sovereignty and Sovereign Immunity

– “…neither becoming nor convenient that the several states of the Union, invested with that large residuum of sovereignty which had not been delegated to the United States, should be summoned as defendants to answer the complaints of private persons…” Ex parte Ayers, 123 U.S. 443, 505 (U.S.1887).

14


Sovereign Immunity?

15


Sovereign Immunity

• Oliver Wendell Holmes, Jr

– “A sovereign is exempt from suit, not because

of any formal conception or obsolete theory,

but on the logical and practical ground that

there can be no legal right as against the

authority that makes the law on which the

right depends.” Kawananakoa v. Polyblank,

205 U.S. 349, 353 (U.S.1907).

16

Sovereign Immunity and Local

Governments

• “The federal, and derivatively, the state and local governments are free from liability for torts committed except in cases in which they have consented by statute to be sued… Blacks Law Dictionary, Sixth Edition, (1991).

• English Common Law creates Municipal Immunity: English case of Russell v. The Men of Devon, (1788), 2 T.R. 667, 100 Eng.Rep. 359.

17

Judicial Creation of Municipal

Immunity

• Earliest U.S. case holding common law municipal immunity appears to be 1812.

– “But quasi corporations, created by the legislature for purposes of public policy, are subject, by the common law, to an indictment for the neglect of duties enjoined on them; but are not liable to an action for such neglect, unless the action be given by some statute.” Mower v. Inhabitants of Leicester, 9 Mass. 247, 250, 1812 WL 927, 2 (Mass.) (Mass. 1812). (citing Men of Devon with approval).

18

Judicial Creation of Municipal

Immunity • “the immunity of the state is transferred to its officer or

agent, and he only is liable for his own direct misconduct. The power of prescribing rules and regulations is sometimes called judicial and sometimes legislative. It would perhaps be more accurate to say that it partakes of the nature of those powers, and therefore is attended with the same protection to those who exercise it;” City of Dayton v. Pease, 4 Ohio St. 80, 100, 1854 WL 63, 12 (Ohio 1854).

• “The corporation of the city of New York possesses two kinds of powers, one governmental and public, and to the extent they are held and exercised, is clothed with sovereignty.” Lloyd v Mayor of City of N.Y. (N.Y. 1851).

19

Principles of Local Governmental

Immunity at Common Law

• Early courts noted the following

distinctions (which still apply today):

– Public Actions v. Proprietary Actions

– Discretionary v. Ministerial

– Legislative/Judicial v. Administrative

20

Justifications of Municipal Immunity

at Common Law • Protect the public purse

• Immunity encourages public service

• Liability would chill public service

• General vs. Individual Good – “…it is better that an individual should sustain an

injury than that the public should suffer an inconvenience…” Men of Devon, 100 Eng.Rep., p. 362.

– “Individual hardship or loss must sometimes be endured in order that still greater hardship or loss to the public at large or the community may be averted.” Hayes v. City of Oshkosh, 1873 WL 5795, 3 (Wis.) (Wis. 1873).

21

Weakening Municipal Immunity

• In Keifer, Justice Frankfurter commented:

– “steadily growing policy of governmental

liability”

– “expanding conceptions of public morality

regarding governmental responsibility”

• Keifer & Keifer v. Reconstruction Finance

Corporation, 306 U.S. 381, 396, (U.S. 1939).

22


• “The rule of sovereign immunity developed in

this county from an English doctrine and has

been applied in the United States far beyond its

original conception.”

• “The doctrine expanded to the point where the

historical sovereignty of kings was relied upon to

support a protective prerogative for

municipalities.”

– Holytz v. City of Milwaukee, 17 Wis.2d 26, 30, 115

N.W.2d 618, 620 (1962).

23


• Sovereign Immunity does not cross state lines. – Supreme Court held State of Nevada could not claim immunity

from suit in action brought in California court by California residents to recover for injuries sustained in automobile collision on California highway involving vehicle owned by State of Nevada.

– Full faith and credit clause did not require California to limit recovery to the $25,000 maximum limitation in Nevada's statutory waiver of its immunity from suit in its own courts.

– Nevada v. Hall, 440 U.S. 410, 99 S.Ct. 1182 (U.S.Cal.,1979).

• But see: – Reed v. University of North Dakota, 543 N.W.2d 106, 107

(Minn.App.,1996) (Unlike the facts in Nevada v. Hall, here we have plaintiffs suing North Dakota in a Minnesota court for actions that occurred in North Dakota).

24

Judicial Abrogation of Municipal

Immunity • The first court to abrogate common law municipal immunity was Florida: Hargrove v.

Town of Cocoa Beach, 96 So.2d 130, 131 (Fla.1957).

• Others soon followed:

– “We are satisfied that the governmental immunity doctrine has judicial origins. Upon careful

consideration, we are now of the opinion that it is appropriate for this court to abolish this immunity notwithstanding the legislature's failure to adopt corrective enactments.” Holytz v. City of Milwaukee ,17 Wis.2d 26, 37, 115 N.W.2d 618, 623 (Wis.1962).

– “In Ohio, there is no doubt that the municipal immunity doctrine was judicially created. Inasmuch as it is a judicially created doctrine, it may be judicially abolished.” Enghauser Mfg. Co. v. Eriksson Engineering Ltd. 6 Ohio St.3d 31, 33, 451 N.E.2d 228, 230 (Ohio,1983).

– “…this court overrules Dayton v. Pease (1854), 4 Ohio St. 80, wherein the sovereign immunity doctrine was extended to encompass local governmental units, and all other decisions which support this doctrine, and holds that immunity from tort liability heretofore judicially conferred upon local governmental units is hereby abrogated. Henceforth, so far as municipal governmental responsibility for torts is concerned, the rule is liability-the exception is immunity.” Enghauser Mfg. Co. v. Eriksson Engineering Ltd. 6 Ohio St.3d 31, 32-33, 451 N.E.2d 228, 230 (Ohio,1983).

25

Legislative Response re

Governmental Immunity and

Liability

• Two Approaches

– Immune with exceptions for liability

– Liability with exceptions for immunity.

26

Consent to Jurisdiction

• Whether or not a king can do no

wrong, it is clear that even a king may

consent to suit. “In Great Britain the

king himself is sued in the respectful

form of a petition, and he never fails

to comply with the judgment of his

court.” Marbury v. Madison, 5 U.S. 137, 163 (1803).

27

Statutory Immunity/Liability

• Wisconsin (waiver with exceptions and limits)

– 893.80 Claims against governmental bodies or

officers, agents or employees; notice of injury;

limitation of damages and suits. Wisconsin Statutes.

– 50,000 cap

– Retains immunity for intentional torts, legislative &

quasi legislative, judicial and quasi judicial,

proprietary and discretionary exemptions.

28


• Florida (waiver with exceptions and limits)

– 768.28. “Waiver of sovereign immunity in tort actions;

recovery limits; limitation on attorney fees; statute of

limitations; exclusions; indemnification; risk

management programs.” Florida Statutes

– 200,000 cap (300,000 all claims same incident)

– Retains immunity for intentional torts, legislative &

quasi legislative, judicial and quasi judicial,

proprietary and discretionary exemptions.

29


• Pennsylvania (Immunity with exceptions and limits).

– “Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person.” 42 Pa.C.S.A. § 8541.

– 8542. Exceptions to governmental immunity

– 8553. $500,000 cap.

30

Procedural Hoops, Notice of Claim

& Indemnification • Administrative Remedies must be followed if

available (e.g. open meetings law may require mandamus action or filing with D.A. prior to individual action).

• Some states have instituted notice of injury and claim procedures and shortened statutes of limitations.

• Must provide local government opportunity to evaluate claim prior to filing suit.

• Some states have required indemnification of public officials and employees.

31

General Types of Immunities

• Discretionary vs. Ministerial – Separation of Powers (court won‟t substitute its

judgment for that of legislative/executive branch), but where no judgment is involved immunity is waived.

• Governmental vs. Proprietary activities

• Absolute (with exceptions) for Legislative and Judicial and Prosecutorial actions.

• Qualified Immunity under 1983

• Statutory

32

Common Specific Statutory

Immunities

• Varies Greatly State to State

– Recreational Immunity

– Granting license (e.g. liquor license)

– Highway Maintenance

– Snow and ice removal

– Release of Information on sex offenders

– GAL activities

33

Governmental v. Proprietary

• Police

• Fire

• Sanitation

• Cemetery

• Tax collection

• Airport

• Hospital

• EMS

• Garbage

• Cemetery

• Hospital

• Garbage

• Housing

• Natural Gas & Electric Utilities

• Swimming Pools

34

Governmental v. Proprietary

• Expressly or Impliedly Authorized by law

• Planning and Policy Making

• No Profit

• No Private Interest

• Benefits Public as a whole

• Historically performed as a government service

• Normally performed by private parties

• Benefits are distinct to specific interests

• Profit motive (even if just additional revenue to general fund)

35

Common Exceptions

• Nuisance Actions (for creating and maintaining nuisance). – “We have recognized that a municipality may be liable for a

nuisance it creates and maintains. The municipality is only liable in the event that, if the condition constituted a nuisance, it was created by some positive act of the municipality.” Lukas v. City of New Haven, 184 Conn. 205, 209, 439 A.2d 949, 952 (Conn., 1981). (icy street not a nuisance).

– Nestle v. City of Santa Monica, 6 Cal.3d 920, 936 (Cal.1972). (airport may cause a nuisance, remanded).

– Leaking sewage

– Burning waste caused blackout on freeway

36

Common Exceptions

• Bad Actors: Crime, actual fraud, actual

malice or willful misconduct

• Ministerial Duty

• Serious Known and Present Danger

37

A Note on Contracts

• Generally no immunity to remedies available for breach of a valid contract.

• But:

• Failure of municipality may render contract unenforceable:

• Failure to follow mandatory procedures (re bidding requirements)

• Ultra Vires (contract outside of governmental authority)

38

A Note on Contracts

• Local Government can‟t contract away

certain fundamental duties:

– Can‟t agree to vote for or against any given

action at some future date.

– E.g. can‟t agree to rezone or not rezone.

– Can‟t agree to enforce or not enforce any

specific ordinance.

39

Qualified Immunity

C. David Dietz Assistant Ramsey County Attorney [email protected]

• 42 U.S.C.A. § 1983:

Every person who, under color of [law] … causes … any citizen … the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law …

41

• The Supreme Court long ago decided that Congress could not have intended to abrogate immunities “well grounded in history and reason.” Lomaz v. Hennosy 151 F.3d 493, 497 (6th Cir. 1998) (quoting Tenney v. Brandhove, 341 U.S. 367, 376 (1951)).

• 42 U.S.C. § 1983, is limited by two recognized exceptions: qualified immunity and absolute immunity. Id. (citing Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982)).

42

• If parties seeking immunity were shielded from tort liability when Congress enacted the Civil Rights Act of 1871-§ 1 of which is codified at 42 U.S.C. § 1983-we infer from legislative silence that Congress did not intend to abrogate such immunities when it imposed liability for actions taken under color of state law.

Wyatt v. Cole, 504 U.S. 158, 164 (1992).

43

• For officials whose special functions or constitutional status requires complete protection from suit, we have recognized the defense of “absolute immunity.” Harlow v. Fitzgerald 457 U.S. 800, 807, 102 S.Ct. 2727, 2732 (U.S.Dist.Col.,1982)

• Legislators, See, e.g., Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975).

• Judges, See, Stump v. Sparkman, 435 U.S. 349, (1978).

• Certain officials of the executive branch, including prosecutors and similar officials, See Butz v. Economou, 438 U.S. 478, 508-512, (1978).

• Executive officers engaged in adjudicative functions (trial witnesses, etc.), id., at 513-517.

44

• The recognition of a qualified immunity defense for high executives reflected an attempt to balance competing values: not only the importance of a damages remedy to protect the rights of citizens but also “the need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority.”

Harlow v. Fitzgerald 457 U.S. 800, 808 (1982).

45

• “We therefore hold that 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 ((1981).

• “The qualified immunity standard gives ample room for mistaken judgments by protecting all but the plainly incompetent of those who knowingly violate the law.” Hunter v. Bryant, 502 U.S. 224, 229 (1991).

46

• Two-Step approach:

– Was a constitutional right violated

– Was the right “clearly established”?

Saucier v. Katz, 533 U.S. 194, 201 (2001).

• Two-Steps are not mandatory. The courts should determine which of the two prongs to address first.

Pearson v. Callahan, 555 U.S. 223, 236 (2009).

47

• A necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is “clearly established” at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all.

• Siegert v. Gilley, 500 U.S. 226, 232 (1991).

48

• The Due Process Clause of the 14th Amendment and § 1983 do not create claims for wrongs inflicted by government employees that usually give rise only to state-law tort claims.

• Paul v. Davis, 424 U.S. 693, 699 (1976);

49

• The right alleged to be violated must be “clearly established” at the time of the violation. Butz v. Economou, 438 U.S. 478, 498 (1978).

• The right cannot be defined at an abstract or generalized level. The question must be considered “in light of the specific context of the case.” Saucier, 533 U.S. at 201.

50

• To be clearly established, the “contours” of the right allegedly violated must be sufficiently clear that a reasonable official would understand that what he or she is doing violates that right. Anderson v. Creighton, 483 U.S. 635, 640 (1987).

• The relevant, dispositive inquiry … is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. Saucier, 533 U.S. at 202.

51

• As the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law.

Malley v. Briggs, 475 U.S. 335, 341 (1986).

52

• Chaining a prisoner to a post

• Reasonable officials in the ADOC should have realized that the use of the hitching post under the circumstances alleged by Hope violated the Eighth Amendment prohibition against cruel and unusual punishment.

Hope v. Pelzer, 536 U.S. 730, 745 (2002).

53

• Shooting an unarmed fleeing suspect in the back?

• “The cases by no means “clearly establish” that Brosseau's conduct violated the Fourth Amendment.”

Brosseau v. Haugen, 543 U.S. 194, 201 (2004).

54

• Warrantless search of a home?

• No reasonable officer could claim to be unaware of the basic rule, well established by our cases, that, absent consent or exigency, a warrantless search of the home is presumptively unconstitutional.

Groh v. Ramirez, 540 U.S. 551, 565 (2004).

55

• We hold that the defense of good faith and probable cause, which the Court of Appeals found available to the officers in the common-law action for false arrest and imprisonment, is also available to them in the action under s 1983. Pierson v. Ray, 386 U.S. 547, 557 (1967).

56

• Can you have good faith if you violate “clearly established” law?

• The immunity defense would be unavailing to petitioners if the constitutional right allegedly infringed by them was clearly established at the time of their challenged conduct, if they knew or should have known of that right, and if they knew or should have known that their conduct violated the constitutional norm.

Procunier v. Navarette, 434 U.S. 555, 562, (1978).

57

• Under that standard, a defense of qualified immunity may not be rebutted by evidence that the defendant's conduct was malicious or otherwise improperly motivated. Evidence concerning the defendant's subjective intent is simply irrelevant to that defense. Crawford-El v. Britton 523 U.S. 574, 588 (1998).

58

• Unless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.

Mitchell v. Forsyth, 472 U.S. 511, 527 (1985).

59

• If the actions Anderson claims he took are different from those the Creightons allege … then discovery may be necessary before Anderson's motion for summary judgment on qualified immunity grounds can be resolved.

Anderson v. Creighton, 483 U.S. 635, 646 (1987).

60

• The District Court's determination that the summary judgment record in this case raised a genuine issue of fact concerning petitioners' involvement in the alleged beating of respondent was not a “final decision” and, thus, not appealable.

Johnson v. Jones, 515 U.S. 304, 313 (1995).

61

• May a party … appeal an order denying summary judgment after a full trial on the merits? Our answer is no.

Ortiz v. Jordan, 131 S.Ct. 884, 889 (U.S.,2011)

62

• Section 1983 actions can be brought in state court.

• But any immunity claim is a question of federal law. Martinez v. State of Cal., 444 U.S. 277, 284 (1980).

63

• Defendants in a state-court § 1983 action do not have a federal right to an interlocutory appeal from a denial of qualified immunity.

• Johnson v. Fankell, 520 U.S. 911, 914–923 (1997).

64

STATUTORY

CONSTRUCTION Robin A. Melvin

Graves, Dougherty, Hearon & Moody, P.C.

Austin, Texas

512.480.5688

[email protected]

Why Is Statutory

Construction Relevant?

66

• Many state courts abolished common-

law immunity for cities in whole or part.

• Legislatures responded with statutes:

• Granting immunity with exceptions. • See, e.g., California, Michigan

• Waiving immunity with exceptions. • See, e.g., Indiana, Nevada

Common-law immunity rejected

67

• Some state constitutions abolished

common-law immunity, but authorized

the legislature to impose immunity by

statute. • See, e.g., Illinois, Montana

• Some state legislatures abolished

common-law immunity and replaced it

with a statutory scheme. • See, e.g., Washington

68

Statutory exceptions to immunity

• In other states, common-law sovereign

immunity still exists, but the state

constitutions or the courts recognize

that the legislature may adopt

exceptions to that immunity. • See, e.g., Delaware, Florida, Kentucky, Maryland,

South Dakota, Texas, Virginia

69

Statutory Construction

Principles

70

Statutory Waivers

must be clear and unambiguous.

71

Clear and unambiguous language

•Any waiver of immunity must be

“clear and unequivocal.” • Am. Home Assurance Co. v. Nat’l R.R. Passenger

Corp., 908 So.2d 459, 472 (Fla. 2005)

•Waiver of immunity must be “by

clear and unambiguous language.” • TEXAS GOV‟T CODE § 311.034

72

Statutes with „magic words‟

• A “clear and unambiguous” finding is

easy when a statute expressly says that

“sovereign immunity is waived.”

• Many states have adopted tort claims

acts and other statutes that expressly

waive immunity from liability and suit.

73

Statutes without “magic words”

• But a statute may also waive immunity

without using the “magic words”

“waive” or “immunity.”

• Some statutes have been held to be an

express waiver of immunity, even

without the magic words.

• Statute requiring refund of improperly paid

taxes held to be an express waiver.

74

Implied waiver

• Statute may waive immunity:

• by necessary implication

• by necessary & compelling implication

• by “overwhelming implication … as will

allow no other reasonable construction”

• if statute would be meaningless or

senseless without waiver

• by reasonable implication

75

No ambiguous waivers

• Ambiguities are generally resolved by

retaining immunity.

• “We must interpret any uncertainty as

to the existence of a waiver as

preserving sovereign immunity.” • Connecticut

• Statute held “too internally

inconsistent” to waive immunity. • Texas

76

Common rules/inconsistent results

• Some courts have held inclusion of a city in a statutory definition of “person” or “employer” is a clear and unambiguous waiver of immunity under that statute.

• Texas statute says that the use of “person” to include governmental entity does not waive immunity unless there is no other reasonable construction.

77

• Some courts have held that general

enabling statutes allowing cities to “sue

and be sued” waive immunity from non-

tort actions. • See, e.g., Maryland, Missouri, South Dakota

• But other courts have held that “sue and

be sued” standing alone does not waive

immunity from non-tort actions. • See, e.g., , Georgia, Texas

78

Statutory Waivers

must be narrowly construed.

79

Waivers strictly construed

• A waiver of immunity will be strictly

construed, as to its scope, in favor of

sovereign immunity.

• Statutes in derogation of common law

must be strictly construed.

• Ambiguities will be resolved in favor of

immunity.

80

Immunity strictly construed

• Where waiver of immunity is the rule, then exceptions must be strictly construed. • Nevada

• Where common-law immunity was abolished, statute granting immunity is in derogation of common law, so immunity must be strictly construed and waivers must be broadly construed. • Colorado

81

Waivers liberally construed

• Courts should defer to the expressed

intention of the legislature that a waiver

be liberally construed where statutory

language is ambiguous. • Tennessee

82

Regular rules of construction

• Statutory construction must start with

the plain language.

• Words are to be given their ordinary

meaning.

• Statutes must be read in context, not in

isolation.

• Statutes must be construed to avoid

surplusage.

83

Summary

• Most state courts require a waiver to be

clearly and unequivocally expressed.

• Most state courts require a statute that

waives immunity to be strictly

construed.

• Some states have statutory rules of

construction relating to waiver.

84

Recent Immunity Cases

Supreme Court

(Selected Circuit Cases)

85

Some Cases of Note

• Martha ("Molly") Otis Scheer v. City of Hayward, et al, Case #: 3:10-cv-00447-slc (Western District of Wisconsin)

• Town of Clayton v. Cardinal Const. Co., Inc., 317 Wis.2d 424, 428, 767 N.W.2d 605, 607 (Wis.App.,2009) (ultra vires)

• Neuendorf v. City of West Bend, 2011 WL 4596128, (Wis.App.,2011) (discretionary v. ministerial duty).

Question on Statutory Grant

• Does a statutory grant of a specific immunity create a kind of inverse liability? The following debate has arisen in Wisconsin around an immunity provision recently enacted in Wisconsin's concealed carry law:

• Wisconsin Statute sec. 175.60(21)(b) grants a person who does not prohibit an individual from carrying a concealed weapon on property that the person owns or occupies immunity from any liability arising from that decision. Similarly, sec. 175.60(21)(c) grants an employer that does not prohibit one or more of its employees from carrying a concealed weapon immunity from any liability arising from that decision.

• Does this mean that a city that prohibits concealed weapons in city hall or that prohibits employees from carrying concealed weapons in the course of employment do not have immunity from any liability arising from those decisions?

Ashcroft v. al-Kidd

• The federal material-witness statute authorizes judges to “order the arrest of [a] person” whose testimony “is material in a criminal proceeding ... if it is shown that it may become impracticable to secure the presence of the person by subpoena.”

• The complaint alleges that, after 9-11 Attorney General John Ashcroft authorized federal officials to use the statute to detain individuals with suspected ties to terrorist organizations, even though the officials had no intention to call them as witnesses.

88

Ashcroft v. al-Kidd

• FBI agents apprehended al-Kidd, a native-born United States citizen in March 2003 as he checked in for a flight to Saudi Arabia. Two days earlier, federal officials had informed a Magistrate Judge that, if al-Kidd boarded his flight, they believed information “crucial” to the prosecution of Sami Omar al-Hussayen would be lost. Al–Kidd remained in custody for 16 days and on supervised release until al-Hussayen's trial concluded 14 months later. Prosecutors never called him as a witness.

89

Ashcroft v. al-Kidd

• Complaint failed to allege the violation of a constitutional right.

• Ashcroft’s conduct was not the violation of a clearly established right.

• Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2080 (2011)

90

Camreta v. Greene

• The United Stated States Supreme Court held in Camreta v. Greene, 131 S. Ct. 2020 (2011), that it could review, at the request of government officials who had been granted qualified immunity in a § 1983 action based on the absence of clearly established law, the Ninth Circuit's ruling that the officials had violated the Fourth Amendment by failing to obtain a warrant or parental consent before interviewing an elementary-school student regarding allegations that her father had sexually abused her.

91

Ortiz v. Jordan

• Defendant may not appeal order denying summary judgment on qualified immunity grounds after full trial on merits.

• Ortiz v. Jordan, 131 S.Ct. 884 (2011).

92

Lebron v. Rumsfeld

• Padilla claims that, as a citizen captured within the U. S., he was unconstitutionally designated as an enemy combatant, and the ensuing military detention violated his right to: counsel—1st, 5th, and 6th Amendments; access to courts—Article III, the 1st and 5th Amendments, & the Habeas Corpus Suspension Clause; non-cruel conditions of confinement—5th and 8th Amendments; non- coercive interrogations—5th and 8th Amendments; freedom of religion under the 1st Amendment and the Religious Freedom Restoration Act; access to information and freedom of association under the 1st Amendment; and due process protected by the 5th Amendment.

93

Lebron v. Rumsfeld

• Preserving the constitutionally prescribed balance of powers is thus the first special factor counseling hesitation in the recognition of Padilla's Bivens claim.

• A second factor causing hesitation in the Bivens context is the departure from core areas of judicial competence that such a civil action might entail.

• Lebron v. Rumsfeld 2012 WL 213352 (4th Cir. 2012).

94

Lebron v. Rumsfeld • Before recognizing a Bivens action, courts must

not only consider special factors that would counsel hesitation, but also “whether any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.”

• Cumulative concerns lead to no remedy.

• Lebron v. Rumsfeld 2012 WL 213352 (4th Cir. 2012).

95

Ryburn v. Huff

• Police officers investigating a rumor that a high school student had threatened to “shoot up” the school had reasonable basis for fearing that violence was imminent, entitling them to qualified immunity in action based on their warrantless entry into student's home

• After some delay, student’s mother answered the knock but ran back inside when asked if there were guns.

• Ryburn v. Huff, 2012 WL 171121 (2012). —Good faith?

96

Bernini v. City of St. Paul

• Republican National Convention riot in St. Paul. Crowd of 400; 200 released; 160 arrested and booked.

• Police use non-lethal munitions, including smoke, blast balls, and chemical irritants.

• Thirty two plaintiffs v. five officers

97

Bernini v. City of St. Paul

• Claims of false arrest, excessive force, and violation of 1st Amendment Rights.

• Qualified Immunity on all claims.

• Bernini v. City of St. Paul, 2012 WL 96461 (8th Cir. 2012)

98

• No constitutional violation in warrantless searches of mining facility under state statute. Lesueur-Richmond Slate Corp. v. Fehrer, 2012 WL 104914 (4th Cir. 2012).

• No immunity for a correctional officer who ordered the forcible shearing of the plaintiff's dreadlocks. Grayson v. Schuler, 2012 WL 130454 (7th Cir. 2012)

99

Federal Circuits

• Ordering a five– to seven-minute dog attack against a compliant suspect who is pleading to surrender violates the Fourth Amendment. Edwards v. Shanley, 2012 WL 89193 (11th Cir. 2012).

• Sheriff is immune for inducing a guilty plea by a legally incompetent person. Hayden v. Nevada County, 2012 WL 43642, ( 8th Cir. 2012).

100

Federal Circuits

• A search of the groin in the context of drug investigations falls within a general consent to a search of the person. U.S. v. Russell, 2012 WL 19380 (9th Cir. 2012).

101

City of Dallas v. Patrick

102

Tort Claims Act says that Recreational

Use Statute limits liability under Act.

Recreational Use Statute provides that

owner who invites person onto property

for recreational purposes has duty not

to injure invitee willfully, wantonly, or by

gross negligence.

“Recreation” includes “nature study,

including bird watching.”

City of Dallas v. Patrick

103

Visitor to Dallas Zoo visited for

“recreational purposes” of nature study.

Therefore, “the City has only waived

immunity for gross negligence.”

347 S.W.2d 452, 457 (Tex. App.—Dallas 2011)

Kirby Lake Dev., Ltd. v. CLCWA

104

Texas Water Code 49.066: District can “sue and be sued in the

courts.” “Suit for contract damages may be

brought” only on board-approved written contract.

President or general manager shall be agent for service of process.

Court may order tax levy to pay judgment. “No suit shall be instituted in any court of

this state” on the validity of district creation or bonds, except by AG.


105

“Since [2006], we have consistently refused

to find waivers of immunity implicit in

statutory language: there can be no

abrogation of governmental immunity without

clear and unambiguous language indicating

the Legislature‟s intent do so. … Because

section 49.066 does not contain a clear and

unambiguous waiver, the „sue and be sued‟

language in 49.066(a) does not on its own

abrogate governmental immunity.”

320 S.W.3d 829, 838 (Tex. 2010)


106

Texas Local Gov‟t Code 271.152:

A local government entity that enters

into a written, properly executed,

contract stating the essential terms of an

agreement for providing goods and

services to the entity waives immunity”

for breach-of-contract claims.

Damages are limited to “balance due and

owed, attorney‟s fees, and interest.


107

Developer‟s contract to design, construct, and lease water, sewer and drainage facilities to CLCWA, which would later purchase them with bond proceeds, was a contract to provide services to a local governmental entity.

“The services provided … need not be the primary purpose of the agreement.”

320 S.W.3d 829, 839 (Tex. 2010)

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