Governmental Immunity Doctrine

Governmental Immunity Doctrine in the United States

Immunity from Tort Liablity

Note: an overview of this issue is avaliable here.

In Texas

In Southwestern Law Journal (vol. 23 p. 341, May 1969), titled “The Governmental Immunity Doctrine in
Texas – An Analysis and Some Proposed Changes”, and authored by Glen A. Majure, W.T. Minick and David Snodgrass:

“Governmental immunity is one of the more ancient of the common law rules. The doctrine deprives the judiciary of
power to adjudicate disputes against the government, the theory being that the sovereign is above the courts and thus not susceptible of being sued in its own courts. Sovereign immunity, as it developed in England, was a logical
extension to the concept of the devine right of kings, but the transplantation to America is a philosophical paradox.

Being common law doctrine, governmental immunity was first introduced in the United States in Mower v. Inhabitants of Leicester (9 Mass. 247 (1812)). This was a quarter of a century after the American Constitution had set out a government of limited powers. Thus, the philosophical underpinnings of sovereign immunity did not apply to the United States when it was introduced to this country.

Nevertheless, the doctrine won rapid and widespread acceptance in the United States, primarily through court
decision. The first reported Texas case on point adopted governmental immunity without citation of authority ( Homer v. DeYoung, 1 Tex. 764 (1847)). The court apparently believed that the immunity of the government was so commonly accepted that citation of authority was superfluous.”

“The trend throughout the United States definitely is toward abrogation of the doctrine of governmental immunity, either in whole or in part. Perhaps this is because the arguments in favor of preserving it have lost their vitality. The proposition that the doctrine protects the state from nuisance suits is unproven at best. Those states which have abolished the doctrine have experienced no greater raid on the public treasury. Furthermore, the doctrine is in derogation of the basic principle underlying all tort law; for every wrong there should be a remedy.

Tin fact, the Texas Constitution provides that “[a]ll courts shall be open, and every person for an injury done him, in his lands, good, person or reputation, shall have remedy by due course of law” (Tex. Const. art. 1, § 13). Thus, in future legislation, Texas should re-evaluate its position and should assume fully the constitutionally
prescribed posture which its courts have so long emasculated.”

“Scope of Constitutional Inquiry. First, the scope of the constitutional problems relating to legislative abrogation of governmental immunity in Texas must be defined. In some jurisdictions the immunity of the state is established by the constitution itself, usually in the form of a directive that the state shall not be made a defendant in any action in the courts of the state. (Ala. Const. art. 1 § 14; Ark. Const. art. 5, § 20; W. Va. Const. art. 6 § 35.)

Such is not the case in Texas, however, for immunity is derived from the common law.59 As a common law
doctrine, governmental immunity can be changed by the legislature or by the courts; thus, the constitutional
prohibitions, if any, are indirect.”

Immunity dealing with foreign sovereigns is Lawful

In the Villanova Law Review, in the article titled “The American Doctrine of Sovereign Immunity: An Historical Analysis”, authored by David T. Murphy 1968 (Vill L Rev 13:583 Spring ’68), the argument is that real sovereign immunity dealing with foreign sovereigns is where immunity is lawful:

“Over the span of a century and a half many legal rules and concepts evolve and unfold in response to variant social conditions and as a means of restructuring social activity. Frequently a legal doctrine as presently understood and applied bears little relation, and may even be inapposite, to its germinal case. (For a concise demonstration of this proposition in the instance of the development of the doctrine of the manufacturer’s liability for defective products see E. Levi, An Introduction to Legal Reasoning 8-27 (1948); H. Berman & W. Greiner, The Nature and Functions of Law 400-72 (2d ed. 1966)

The original contours of a legal concept may, therefore, often be of small practical import in its current application. This general thesis is not applicable, however, to the doctrine of sovereign immunity – that
principle which provides that a recognized foreign sovereign is not susceptible, without its consent, to the judicial process of the courts in any other state. Although more than one hundred and fifty years old, the case vivifying this legal concept, The Schooner Exchange v. McFadden (11 U.S. (7 Cranch) 116 (1812)), is still repeatedly referred to in judicial opinions”

“Under the absolute theory the sole inquiry is whether or not the entity being sued is a foreign sovereign. If so the court will dismiss the action” (See C. Fenwick, International Law 308 (3d ed. 1948). For additional discussion see Lauterpacht, The Problem of Jurisdictional Immunities of Foreign States, in 28 Brit. Y.B. Int’l L. 220-26 (1951); Fensterwald, Sovereign Immunity and Soviet State Trading, 63 Harv. L. Rev. 614, 616-20 (1950))

“The premise requires that all exemptions from the sovereign’s absolute power must come from within, from the
consent of the sovereign state itself” (11 U.S. (7 Cranch) at 136).

“Thus, the Court concluded that if the port is open to ships of all nations, an armed public vessel may enter and obtain the protection of the local sovereign, and the immunity from jurisdiction, although no specific license to enter is granted. (11 U.S. (7 Cranch) at 141-44)

The foundation of these concessions is the common consent of the nation states and their coequal dignity. “One sovereign being in no respect amenable to another; and being bound by obligations of the highest character not to degrade the dignity of his nation, by placing himself or its sovereign rights within the jurisdiction of another, can be supposed to enter a foreign territory only under an express license, or in the confidence that the immunities belonging to his independent sovereign station, though not expressly stipulated, are reserved by implication, and will be extended to him” (11 U.S. (7 Cranch) at 137)

“For more than a hundred years following “The Schooner Exchange” the vast majority of the cases involving a possible plea of sovereign immunity were suits in admiralty. Ships of foreign nations were libeled in American ports, and jurisdiction in rem and quasi in rem was thereby established. The opinions in these cases are weighted with references to The Schooner Exchange. Immunity was generally granted to those ships in the actual possession of a foreign government and employed for a public purpose. Mere governmental ownership of the vessel, without allegation of public use and possession, was, however, held to be insufficient.”

It was not for the agent of the sovereign citizen to harm the citizen with impunity but to avoid prosecution of the agent of the sovereign by a foreigner, which was to be resolved between jurisdictions:

“Throughout this rather abstract discussion of the absolute and restrictive theory of sovereign immunity, the pragmatic interests of the private party plaintiff hae been given only passing consideration. Since the absolute theory of sovereign immunity subsumes the restrictive and grants to a foreign nation even greater measure of protection, there can be little diplomatic or political embarrassment to our government consequent to its application by our courts. Thus, any determination to recast the doctrine of sovereign immunity will probably be based on considerations of fairness and justice to the private plaintiff ( See Cardozo, Sovereign immunity: The Plaintiff Deserves a Day in Court, 67 Harv. L. Rev. 608 (1954)).

Those same pressures which impelled enactment of the Federal Tort Claims Act and the Tucker Act may force a more definitive articulation of a plaintiff’s rights. Two possible procedures might be utilized. Treatise may be entered into which more precisely detail the rights of citizens of one contracting party to sue the other nation state (Treaty of Commerce, Friendship and Navigation with the Republic of Ireland, Jan. 21, 1950, art. 15 [1950] 1 U.S.T. 1859, T.I.A.S. No. 2155.). Alternatively, a congressional enactment such as the Hickenlooper Amendment (Foreign Assistance Act of 1964, Pub. L. No. 88-633, Part III, ch. 1, § 301, 78 Stat. 1009) might be employed to delineate the precise scope of the sovereign immunity doctrine in American courts.”

The Role of the Courts in Abolishing Governmental Immunity

In an article in the Duke Law Review, tiled “The Role of the Courts in Abolishing Governmental Immunity (Duke L R 1964:888)”, it is said:

“The abolition of the governmental immunity doctrine has been urged since before the turn of the century. Until recently, however, courts have refused to give tort relief in the absence of legislation or facts on which the immunity doctrine could be circumvented. Since governmental enterprises continue to expand in scope at an ever increasing rate, their contact with and influence on the individual becomes more significant. Therefore, the unpredictable and often inequitable consequences resulting from the “governmental-proprietary” dichotomy, “discretionaryministerial” distinction and other judicial attempts to designate areas of governmental tort liability and immunity have been increasingly lamented from the bench as well as the bar.

Reinforced by growing acceptance of a “spread-the-loss” philosophy, commentators have urged that public entities
should be held responsible for torts committed by their employees within the scope of their employment. Despite appeals for reform from the courts and commentators, most state legislatures have failed to provide a satisfactory solution. Within the last seven years, however, several courts have abolished the governmental immunity doctrine by
judicial fiat, and it seems likely that other courts will soon follow that path.”

Governmental Immunity in Torts

In a Yale Law Journal article title “Government Liability in Tort” by Edwin M. Borchard (34 Yale L J 1):

“The common law and the political theory underlying bothBritish and American constitutional law have been regarded as a bulwark of protection to the individual in his relations with the government. The “rule of law” which Dicey and others extol is designed by judicial control to restrict within the bounds of legality the operation of the governmental machine in its contact with the citizen. Yet it requires but a slight appreciation of th facts to realize that in Anglo-American law the individual citizen is left to bear almost all the risks of a defective, negligent, perverse or erroneous administration of the State’s functions, an unjust burden which is becoming graver and more frequent as the Government’s activities become more diversified and as we leave to administrative officers in even greater degree the determination of the legal relations of the individual citizen.

Obviously the Administration cannot be held to the obligation of guaranteeing the citizen against all errors of
defects, for life in an organized community requires a certain number of sacrifices and even risks. The unexampled
expansion of the police power in the United States daily illustrates the uncompensated sacrifices to which the
individual is exposed by the rightful operation of the State’s public powers. Yet there is no reason why the most
flagrant of the injuries wrongfully sustained by the citizen, those arising from the torts of officers, should not be allowed to rest, as they now generally do, in practice if not in theory, at the door of the unfortunate citizen alone.

This hardship becomes the more incongruous when it is realized that it is greatest in countries like Great Britain and the United States, where democracy is assumed to have placed the individual on the highest plane of political freedom and individual justice. When Justice Miller of the United States Supreme Court remarked in Gibbons v. United States that “no government has ever held itself liable to individuals for the misfeasance, laches or unauthorized exercise of power by its officers or agents,” his horizon was extremely limited, for
he overlooked the fact that practically every country of western Europe has long admitted such liability.”


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