Citation
Governmental immunity

Material Information

Title:
Governmental immunity legal basis and implications for public education
Creator:
Connors, Eugene Thomas, 1949-
Publication Date:
Copyright Date:
1977
Language:
English
Physical Description:
viii, 139 leaves : ; 28 cm.

Subjects

Subjects / Keywords:
Attorneys general ( jstor )
Canon laws ( jstor )
Case law ( jstor )
Common law ( jstor )
Governing laws clause ( jstor )
Governmental immunity ( jstor )
Immunity ( jstor )
Legislative immunity ( jstor )
Statutory law ( jstor )
Torts ( jstor )
Dissertations, Academic -- Educational Administration and Supervision -- UF ( lcsh )
Educational Administration and Supervision thesis Ph. D ( lcsh )
Government liability -- History -- United States ( lcsh )
Liability for school accidents -- United States ( lcsh )
Tort liability of school districts -- United States ( lcsh )
City of Madison ( local )
Genre:
bibliography ( marcgt )
non-fiction ( marcgt )

Notes

Thesis:
Thesis--University of Florida.
Bibliography:
Bibliography: leaves 133-137.
General Note:
Typescript.
General Note:
Vita.
Statement of Responsibility:
by Eugene T. Connors.

Record Information

Source Institution:
University of Florida
Holding Location:
University of Florida
Rights Management:
Copyright [name of dissertation author]. Permission granted to the University of Florida to digitize, archive and distribute this item for non-profit research and educational purposes. Any reuse of this item in excess of fair use or other copyright exemptions requires permission of the copyright holder.
Resource Identifier:
026311082 ( AlephBibNum )
04054716 ( OCLC )
AAX3762 ( NOTIS )

Downloads

This item has the following downloads:


Full Text









GOVERNMENTAL IMMUNITY:

LEGAL BASIS AND

IMPLICATIONS FOR PUBLIC EDUCAT'!ON





by


EUGENE T. CONNORS


A DISSIERTATION ,pRESj-,NT~rO '10 THlE GRAWA.TE COUNCIL OF~
r!I U\ R~17i 01 F
TN PART I AL Ul ELNTOF ThI I,JQ~ltlZME'fS FOR 'III
iEGr01- DOCTrOR OF P~iiLOSOuIn'I


IN IX ~ I OF 01: 1 0lE Lo

H ,77































Copyright

by

Eugene T. Connors


1977











To Sofie Madelyn Connors


Digitized by the Internet Archive
in 2010 with funding from
University of Florida, George A. Smathers Libraries


http://www.archive.org/details/governmentalimmu00conn













ACKNOWLEDGMENTS


I would like to acknowledge the assistance of the

following persons and to thank them for all the help and

patience which they rendered me in the preparation of this

dissertation.

Dr. Kern Alexander, my advisor and committee chairman,

for his sincere and helpful guidance and assistance throughout

this entire project.

Dr. John M. Nickens, a member of my dissertation

committee, for his time and suggestions in helping me to

complete this project.

Dr. William B. Ware, a member oE my dissertation

committee and minor advisor, for his sincere interest in

this project and for all the encouragement and help he

rendered me in this project.

Dr. Leland L. Zimmerman, a member of my dissertation

committee and minor advisor, for his support in this endeavor.

And last in mention, but first in mind, my wife, Ms.

iLcL.n B. Cnn.--na for her patience and understanding while T

.orkc d on this project.















TABLE OF CONTENTS




ACKNOWLEDGMENTS .......................................

ABSTRACT ....................................... ........

CHAPTER

I. Introduction................................

Purpose of the Study.......................

Delimitations of the Study................

Definition of Terms.......................

Justification of the Study................

Procedures and Sources of Data............

Organization of the Study.................

II. HISTORICAL ANALYSIS OF MEDIEVAL AND ENGLISH
SOVEREIGN IMMUNITY ........................

Review of the Literature ..................
Historical Development ..................
Movement from Common Law to Statutory
Law Status ...........................

English Law Heritage......................
Roman Law ............................ ..
The Dualistic Nature of Roman Law.......
Canon and Ecclesiastical Law............
The Feudal System .......................
Unification of the English Legal System.
William Blackstone's Contribution.......
England's Abrogation of Immunity.........

Summary ...................................

III. DEVELOPMENT AND EVOLUTION OF GOVERNMENTAL
IMMUNITY IN THE UNIT ED STATES.: .............

Hethod of Transmission ................... .


Page

iv

vii



1

2

3

3

6

7

9


10


11

12

13
14
16
19
22
24
32
33

38


40

41








Page
The Federal Government and Immunity........ 45

The Individual States and Governmental
Immunity ....................... ......... 51
Early Immunity Cases in the States...... 53

Abrogation of Immunity by the States ...... 63

Summary ................................... 77
IV. IMPLICATIONS OF THE GOVERNMENTAL IMMUNITY
PRINCIPLE TO EDUCATION IN THE UNITED
STATES .................................... 79

Early Case Law............................. 80

Court Ordered Abrogation in Education
Cases ................................... 83

Application to Education: Political
and Fiscal ......................... .... 83

Summary.................................... 87
V. CONCLUSION................................... 88

Origination .............................. 88

Development in England.................... 89

Transmission of the Principle.............. 89

Evolution in the United States............. 90

Application of the Governmental Immunity
Principle to Education.................. 92

Recommendations ........................... 93

APPENDIX 1 STATE DECISIONS LIMITING GOVERNMENTAL
IMMUNITY. ............................. ..... 95

AT','N )IX 2 STATE LTABIITfY LEGISLATIONN ............... 100

APPENDIX 3 STATUS OF GOVERNMENTAL IMMUNITY IN
lIHE UNITED STATES .. ........................ 105

I BL O1 GtkAPHY .......... ..................... ..... ...... 133

B iOGlRAPHl CAL SKEfCH ............ ................... . 135













ABSTRACT OF A DISSERTATION PRESENTED TO
THE GRADUATE COUNCIL OF THE UNIVERSITY OF FLORIDA
IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR
THE DEGREE OF DOCTOR OF PHILOSOPHY


GOVERNMENTAL IMMUNITY:
LEGAL BASIS AND
IMPLICATIONS FOR PUBLIC EDUCATION

by

EUGENE T. CONNORS

December, 1977

Chairman: Dr. Kern Alexander
Major Department: Education Administration


This study had three purposes: First, it traced the

historical development of the concept of sovereign immunity

in the English common law system. Second, it sought to

determine the means by which the concept of sovereign immunity

from liability became ingrained in the American legal system.

Third, it identified the trends and movements in the govern-

mental immunity concept on the United States' public school

in 1977. Governmental immunity had its origin in the Middle

Ages where the feudal system and Canon law merged together,

thus creating the concept of "The King shall do no wrong."

This concept flourished and became firmly established in the

statutory legal system under the reign of King Henry VIII.

Since the American colonies were under the legal juris-

diction of the English Crown, the principle of sovereign









immunity became an accepted legal principle which was

subsequently endorsed by the United States. Governmental

immunity, then was inherited from the English legal system.

Governmental immunity flourished in the United States

until the late 1950's when a series of court cases brought

challenges. In the 1960's, states began a trend of abrogating

governmental immunity either by statutory or judicial means.

In 1977, a majority of states have abrogated their govern-

mental immunity, at least in part.

The effect of this trend of abrogation on public

education is great. For centuries, education had enjoyed

the protection of governmental immunity since education was

a function of the state. However, the recent trends in

abrogation has left many educational systems liable. In

many instances, it was education cases which the courts used

in abrogating a state's governmental immunity. Consequently,

educators can no longer depend on the principle of governmental

immunity for protection against liability suits. The study

contains recommendations for educators who may be concerned

about tort liability and governmental immunity.

A survey of legal precedence, statutes, and attorneys

general opinions provide detailed information regarding the

current status of governmental immunity in each state.


viii














CHAPTER 1

INTRODUCTION


Governmental immunity has been an established

principle in the United States' system since 1798.1 The

principle of governmental immunity is where governments and

their agencies are immune from liability suits. This prin-

ciple is believed to have been part of the legal system

which the United States inherited from England.2

All levels of United States' government (local,

state, and federal) have endorsed and embraced the concept

that governments are immune from tortious acts. In the late

1950's, an era began in which the entire concept of immunity

was vigorously attacked on several fronts. Victims who

sustained injury and damages as a result of tortious acts by

the state maintained that the state should absorb the cost

of this injury rather than make the individual bear the

burden. Some authorities questioned the use of public funds

in acquiring liability insurance rather than simply paying



Date of ratification of the Eleventh Amendment to the
United States Constitution. The inclusion of this amendment
initiated the statutory use of the governmental immunity
concept in the United States.
2C. E. JACOBS, THE ELEVENTH AMENDMENT AND SOVEREIGN
IMMUNITY (1972).








the damages.3 Historical criticism questions the entire

foundation on which the sovereign (governmental) immunity

principle is based.4

In 1959, however, an Illinois court stripped away

the immunity from liability which a school district had

previously enjoyed.5 As a result of this decision and of

increasingly strong criticisms, governmental immunity has

undergone several changes. Between 1959 and 1976, several

states voluntarily abrogated immunity either partially or

completely.6 Other states have had this privilege terminated

for them by state and/or federal courts.


Purpose of the Study

This study had three purposes:

First, it traced the historical development of the

concept of sovereign immunity in the English common law

system.

Second, it sought to determine the means by which

the concept of sovereign immunity from liability became

ingrained in the American legal system.


3Molitor v. Kaneland Community Unit District No. 302
18 Ill. 2d 11, 163 N.E. 2d 89 (19591.

4Supra note 3.

51d note 3.

6New York (1959), Iowa (1967), Nebraska (1969), Florida
(1969), and Colorado (1970).

7Massachusetts (1869), Washington (1907), New York (1907),
California (1928), Illinois (1959), Michigan (1961), Wisconsin
(1962), and Arizona (1963).








Third, it identified the trends and movements in

the governmental immunity concept on the United States'

public school in 1977.


Delimitations of the Study

This study will be delimited to an examination of

the United States and British common and statutory law in

relation to governmental immunity as well as how the concept

was utilized during the Middle Ages. The focus of this

study will be on public education at all levels with special

emphasis on the kindergarten through twelfth grade levels.



Definition of Terms

The following terms and their definitions will be

used throughout this study. Adequate understanding of this

study requires a knowledge of the definition of these terms.

They are provided to help eliminate any misunderstandings

which might arise as a result of semantic variations:

Abrogation of immunity. The term, as used herein,

is the destruction or annulling of immunity by an act of the

legislative power, by constitutional authority, or by
8
usage.

Canon law. Law enacted and enforced by the Roman

Catholic Church before the Reformation and by any state



8. C. BLACK, BLACK'S LAW DICTIONARY 21 (1968).










recognized church after the Reformation. Sir William Black-

stone describes canon law as:

S. a body of Roman ecclesiastical law, relative
to such matters, over which that church professed to
have proper jurisdiction. It is compiled from the
opinions of the ancient Latin fathers, the decrees of
general councils and the decretal epistles and bulls
of the Holy See.9

Civil law. Civil Law is that law enacted or

created by various governmental bodies such as congresses,

general assemblies, or administrative agencies.

Common Law. Law which derives its authority from

previous uses of customs. Court decisions (case law) are

common law since they set precedents on which other court

decisions may be based. Blackstone's narrative on common

law provides more insight.

The ancient collection of unwritten maxims and
customs called the common law, had subsisted
immemorially in this kingdom (England) . .the
people were attached to it, because its
decisions were universally known.10

Constitutional law. That law which is derived

from the constitution of a particular state.11

Governmental immunity. A term, the meaning of

which has evolved considerably over the three hundred years.



9WILLIAM BLACKSTONE, COMMENTARIES OF THE LAWS OF
ENGLAND 23 (1897).
10Supra note 9 at 4.

11Sura note 8 at 395.









In its original sense, it mearnt immunity from taxation.12

In the last two centuries, however, the phrase has come to

mean "immunity from liability" (see sovereign immunity).

Liability. "The word is a broad legal term and

has been referred to as of the most comprehensive signi-

ficance, including almost every character of hazard of

responsibility, absolute, contingent, or likely."13 Or, the

"condition of being responsible for a possible or actual

loss, penalty, evil, expense, or burden."14

Sovereign immunity. Originally embodied the

concept of "governmental immunity." This phrase originated

in Seventeenth Century England where the King or Queen

declared that their sovereignty made them immune from

prosecution or suit.15

Sovereign prerogative. Predecessor of the "sov-

ereign immunity" concept. According to Blackstone, "sover-

eign prerogative" can be divided into two divisions; first,

and most important, was the prerogative of property rights.



12Supra note 8 at S26.

13Id note 8 at 720-721.

14First National Bank v. National Surety Co. 228 N.Y.
469, 127 N.E. 478.
15D. L. KEIR & F. H. LAWSON, CASES IN CONSTITUTIONAL
LAW 74 (1967).









Among these medieval (feud:il) rights, the concept of "immun-

ity" is embedded. The second division of prerogative is a

vague category which can be labeled as "inherited powers."

The monarchs were able to inherit the concept of "The King

can do no wrong" from their feudal predecessors as a part of

their inherited powers.16

Statutory law. Law relating to or created by an

act of the legislative branch of government.7

Tort. "A private or civil wrong or injury. A

wrong independent of contract."18

Tortious act. An act done by some person which

leads to a tort.


Justification of the Study

There are two general justifications for this

study and four specific justifications which coincide with

the three purposes of the study which are as follows:

First, the study traces the development of sovereign immunity

in the English common law system. Second, it determines the

means by which sovereign immunity transferred into the

American legal system. And third, it identifies trends and

movements in governmental immunity in the United States'

public schools in 1977.



16Supra note 9 at 239.

17Supra note 8 at 1581.
18Id note 8 at 1660.









The major justification for this study is its

advancement of knowledge concerning the governmental immun-

ity concept.

It is important from a historical and legal

perspective that the issues concerning these three major

issues be resolved. Significant court decisions have relied

heavily on the lack of knowledge in the area of immunity.19

Therefore, a more secure knowledge base should be found

providing a better basis for sound judicial adjudication.

A second general justification is that this study

will offer solutions to the practical problems which educa-

tional administrators face concerning the issues of govern-

mental immunity.

Public school administrators who understand the

development and/or historical traditions of the governmental

immunity concept possess a better basis to view trends and

movements in governmental immunity and, therefore, are able

to offer wiser leadership through their knowledge.


Procedures and Sources of Data

Since this study is essentially a legal-historical

exan;3 nation of governmental immunity, there are two primary

steps in the research process.

The first step is to locate and collect all per-

tinent data relating to the topic; and the second step is to



Supra note 3.









interpret these data in relationship to the purposes of the

study which were presented earlier.

Location and collection of data will be done by

searching all relevant United States' Supreme Court, circuit

courts of appeals' and district courts' cases as well as

selected state court rulings. Other pertinent information

contained in works of history and/or political science was

also be used. Location of relevant data from British

sources will consist of searching British court decisions,

statutes, and related historical and political science

works.

In locating these data, such legal materials as

The American Digest System, The Dicennial Digest, and specific

state indexes will be used to find specific cases relevant

to this study. These cases will then be located in various

reporters as the United States Reports, The Federal Reporter,

The Federal Supplement, regional and state reporters.

Peripheral information regarding the topic of this

study will be obtained from other legal encyclopedia sources

as American Law Reports, Corpus Juris Secundum, American

Jurisprudence, and various law journals.

All data will be scrutinized regarding their

relevance, impact, and implications and reported in the

Research Report.









Organization of the Study

The study is organized in the following manner:

Chapter 2: Historical analysis of Medieval and

British sovereign immunity.

Chapter 3: Development and Evolution of

Governmental immunity in the United

States.

Chapter 4: Implications of the governmental

immunity principle to education

in the United States.

Chapter 5: Conclusion.














CHAPTER 2

HISTORICAL ANALYSIS OF MEDIEVAL
AND ENGLISH SOVEREIGN IMMUNITY

Since several United States' courts have attacked

the concept of sovereign immunity because "the whole doctrine

of governmental (sovereign) immunity from liability from

tort rests upon a rotten foundation," it is necessary to

examine this foundation and to analyze its historical impact

on modern-day usage of sovereign immunity.20


Review of the Literature

The term "governmental immunity" represents an

evolution of the term "sovereign immunity." WThen the United

States declared independence in 1776, American governments

absorbed the duties and responsibilities of the previous

colonial governments which were authorized and sanctioned

by the English Crown.21 During the pre-revolutionary

war period, the state was immune from suits of tort

liability, because it was held that the state was an exten-

sion of the sovereign crown--hence the name "sovereign

immunity." The founders of the new American nation,

however, in their attempt to eliminate all references to


20
2Supra note 3.

21Dartmouth College v. Woodward 4 Wheaton 517 (1819).


I n










"kingship," and "sovereignty" adopted this principle of

immunity from suit, but changed its name to "governmental

immunity." It was felt that the sovereign was replaced by a

government; and since the principle was still applicable,

the name change was justified.


Historical Development

The origination of the governmental immunity

concept is uncertain. Scholars present various theories

regarding its inception. Literature relevant to this

discussion reveals two major theories concerning the origina-

tion of governmental immunity.

The most popular school of thought is represented

by the English scholar Bracton and his successors Maitland

and Pollock, who suggested that many common law concepts
22
evolved during the dark ages. One common law custom

established during this period was that the lord of the fief

was also the law-maker and judge of the fief. Since this

arrangement placed the lord (for all practical purposes)

above the law, a type of common law immunity from suit was

developed. The only person who could hold a lord legally

responsible for his actions was the superior power that gave



2BRACTON, TRACTATUS DE LF.GIBUS (ed. F. W. Maitland)
107-108 (1887) and 2 F. POLLOCK F. W. MAITLAND, 'THE
HiSTORY OF ENGLISH LAW 124-215 (1968).









him his fief--the king.23 Tie kiug, in turn, was immune
24
from suit as a result of his sovereignty.2

Another point of view is expounded by the English

Law historian Blackstone, and later by Keir and Lawson.

This school of thought maintains that sovereign immunity was

a royal "advantage" of one of the king's two prerogatives.

The chief among his advantages in litigation was
that he could not be made defendant to an action at
law; this was hardly a prerogative in the earlier
Middle Ages since it was shared by other lords, being
merely an application of the feudal rule that a lord
cannot be sued in his own court. It later came quite
correctly to be regarded as a prerogative; for when
the King's courts had become national courts and
absorbed the greater part of the legal business of
the country, the King's immunity ceased to have any
real connection with feudalism."5

Blackstone maintains that the King's prerogatives were the

only legal basis for his authority.26 Therefore, there

appears to be a controversy regarding initiation of the

immunity concept.


Movement from Common Law to Statutory Law Status

Even though governmental immunity is a legal

principle which has existed in statute for hundreds of

years, no major research has been conducted regarding its

movement from common law to statutory law status. Bracton,



23Supra note 15 (BRACTON) at 107.

24Id note 15 at 109.

251d note 15 at 107.

26Supra note 9 at 74.

2Supra note 22.









28 R729 30
Maitland, Pollock,29 and Jacobs30 are some of the scholars

who have identified a type oF governmental immunity which

existed in common law during the MLddle Ages.

Blackstone, Keir, and Lawson are representative of

those scholars who have identified the concept in a quasi-

statutory law status. By quasi-statutory law status, it

is meant the concept possessed a solid and firm foundation

in the King's prerogative but had not been placed into civil

statute.

Jones maintains that the status of governmental

immunity was changed from common law to statutory law in

1532 and 1533 by two acts of Henry VIII. He does not,

however, offer any explanation regarding the events which

lead to this historical change in legal principle.


English Law Heritage

English statutory law and common law has a long

and complex history. In its simplest form, English law is

comprised of Roman civil law (both statutory and common),



28F. POLLOCK & F. W. MAITLAND, THE HISTORY OF ENGLISH
LAW (1923).
2Id note 28.

30Supra note 2.

3Supra note 15 at 18.









ecclesiastical or canon connon law, feudal common law,

European common law (especially French and Norman), and its

own Anglo-Saxon law.32

The influence of each of these laws will be

examined in terms of the contribution to the English system

of law which is able to endorse the concept of sovereign

immunity, and the contribution concerning the evolution of

the sovereign immunity doctrine.


Roman Law

Roman law played an important role in determining

the foundation of English law and was able to influence the

form of English law by two primary paths. Since Roman law

consisted of both statutory and common law,33 each of these

elements had a unique impact on the development of the

English legal system and its system's ability to so easily

adopt the principle of sovereign immunity.

The primary path of influence results from the

fact that England was occupied by the Roman empire until

410 A.D. and, consequently, was subject to its statutory

laws. Even though the Romans left England early in the

Fifth Century, the influence of Roman law continued and

eventually influenced (to a certain degree) Anglo-Saxon law.



32Supra note 9 at 17-19.

33HENRY S. MAINE, ANCIENT LAW at 52 (1930).









Even though many scholars maintain that "when the

Romans left Britain, his law departed with him."34 Percy

Winfield claims that the Roman influence continued:

Nor is it credible that Rome, of all empires,
should have ruled any dominion for three and a half
centuries without making her subjects familiar with
some of the principles of law that backed her government
.. Grants of land to private individuals,
unclogged by the native "folkright can be linked up
to Roman conceptions of ownership.35

Therefore, English law has a direct historical connection

with the Roman statutory law system.

There is another means by which Roman statutory

law helped to influence English law. Early during the

Twelfth Century, a revival of Roman law was begun in con-

tinental Europe. This revival was quickly spread to England

where conflicting reports show Roman law (on one hand)

endorsed by English lawmakers36 or (on the other hand)

opposed due to ecclesiastical matters.37 In any event,

there was a new move towards reviving Roman law in England,

and its influence is bound to exist. A more detailed

discussion of the extent of this influence will be discussed

later in this chapter.



34PERCY WINFIELD, THE CHIEF SOURCE OF ENGLISH LEGAL
HISTORY 55 (1925).
35Supra note 34.

36
3Supra note 33.

37Supra note 28 at 122-135.









A second primary means of influence also had two

paths. First, and contrary to most beliefs, Roman law

possessed a type of common law which directly influenced

ecclesiastical law. Ecclesiastical law, in turn, had a

direct influence on English law as well as having strong

influence on feudal law. The second path was a feudal

system which operated in England for many centuries.

Therefore, through the dual paths of ecclesiastical law and

feudal law (both of which had their beginnings in Roman

common law), Roman common law influenced English law.


The Dualistic Nature of Roman Law

A superficial examination of Roman law often

reveals that Roman law was a civil law, based on statutory

or written provisions. While this observation is correct,

it is far from complete. Roman law, in fact, was comprised

of two separate legal elements:

The Romans described their legal system as con-
sisting of two ingredients. "All nations," says the
Institutional Treatise published under the authority
of the Emperor Justinian, "who are ruled by laws and
customs, are governed partly by their own particular
laws, and partly by those laws which are common to all
mankind. The law which a people enacts is called
the Civil Law of that people, but that which natural
reason appoints for all mankind is called the Law
of Nations, because all nations use it."38

The "Institutional Treatise" which Main refers to is the

basis for the statutory laws which governed the Roman Empire.



38Supra note 33 at 53-54.









It is appropriate at this point to mention that both the

English and American legal systems incorporate statutory

provisions as part of the overall system of laws. The Roman

Statutory provisions consisted of "Twelve Decemviral Tables"

which were tablets that contained all Roman civil laws.

These laws were written on these tables and, therefore, were

standard throughout the Roman Empire. England was governed

by these statutory laws up until 410 A.D. when the Roman

occupation ceased.

The Roman treatment of torts (law of wrongs) and

the English treatment of torts, while having similar results,

are administered quite differently. The Roman law of torts

not only included torts (in the modern sense) but also

crimes against an individual since it is the individual that

suffers, not the state.

Offenses which we are accustomed to regard
exclusively as crimes are exclusively treated as
torts, and not theft only, but assault and violent
robbery, are associated by the jurisconsult with
trespass, libel, and slander. All alike gave
rise to an Obligation or vinculum juris, and
were all requited by a payment of money. This pecul-
iarity, however, is most strongly brought out in
the consolidated Laws of the Germanic tribes. With-
out an exception, they describe an immense system of
money compensations for homicide, and with few
exceptions, as large a scheme of compensation for
minor injuries . . a sum was placed on the
life of every free man, according to his rank, and
on his person, for nearly every injury that could be
done to his civil rights, honour, or peace; the sum
being aggravated according to adventitious circum-
stances. These compositions are evidently regarded
as a valuable source of income; highly complex rules
regulate the title to them and the responsibility for
them; and, as I have already had occasion to state,
they often follow a very peculiar line of devolution,
if they have not been acquitted at the decease of









the person to whom they belong. If therefore the
criterion of a delict, wrong or tort be that the
person who suffers it. ind not the State, is
conceived to be wronged, it may be asserted that in
the infancy of jurisprudence the citizen depends for
protection against violence or fraud not on the
Law of Crime but on the Law of Tort.39

The Romans, then, obviously treated any wrong (physical or

tort) against an individual as a type of statutory tort.

The English system, however, deals with torts in a

common law fashion which requires judicial procedures. It

is interesting to note the similarities of the outcomes.

Under both systems, a monetary compensation is required to

the person who sustained injury. Often, these compensations

carry previously determined remedies much like the Roman

statutory law. Insurance contracts often spell out exact

damages for each type of physical injury in much the same

manner as Blackstone in his Commentaries on the Laws of

England. 40

While Roman statutory law did exert some influence

on English law and tort actions in England, it was not the

primary method. The Roman equivalent of English common

law--the law of nature--appears to be the primary source of
41
influence. The Roman Law of Nature was a common law.4 No

statutes were written regarding its use or implementation.

The primary element of the "law of nature" was "Equity,"


39
Supra note 33 at 392-393.

40Supra note 9 at 239.
41Id note 33 at 54.









which Henry S. Maine describes as "a set of legal principles

entitled by their intrinsic ;periority to supersede the

older law."42

Maine contends that much of the law practiced in

England by Chancery judges was law derived from Equity. In

fact, "the Court of Chancery, . bears the name of Equity,"

adopted many principles of Roman jurisprudence.

The Roman law, more fertile than the Canon
Law in rules applicable to secular disputes, was
not seldom resorted to by a later generation of
Chancery judges, amid whose recorded dicta we often
find entire texts from the Corpus Juris Civilis
imbedded, with their terms unaltered though
their origin is never acknowledged.44

Therefore, Roman law (hence its influence on

English law) possessed not only statutory law, but also in

equity. The statutory law influenced the English legal

system through a historical path and a scholarly revival

path. Equity influenced English law in a more indirect

manner--through Church ecclesiastical law.


Canon and Ecclesiastical Law

It is necessary to immediately differentiate

between canon and ecclesiastical law. Canon law is law

which was derived from Roman common law and which, even-

tually, absorbed civil law in medieval Europe. Ecclesiastical


42Supra note 33 at 2.

43d note 33 at 52.
44Id note 33 at 52.
Id noto 33 at 52,









law, on the other hand, is a law which has a civil law

basis, but where the reigning monarch accepts the merger of

Canon law with his civil law. Technically, then, "Ecclesias-

tical laws (were) issued by the Anglo-Saxon Kings on the

advice of their bishops, with whom they were closely allied."45

Canon law began as an internal religious law that

not only was not sanctioned by the Roman government, but was

persecuted by various Roman emperors until 313 A.D..

Pollock and Maitland report that during this period Roman

law "was stricken with sterility."46

By the time the fall of the Roman Empire was

completed, canon law, governed by the Church, was the only

operating jurisprudence in Europe. This law, however, was

growing so quickly that no standardized format was in exist-

ence between European countries or even between bishop's

deities.

Slowly and by obscure processes a great mass
of ecclesiastical law had been forming itself. It
rolled, if we may so speak, from country to country
and took up new matter into itself as it went, for
bishop borrowed from bishop and transcriber from
transcriber. Oriental, African, Spanish, Gallican
canon were collected into the same book and the
decretal letters of later were added to those of
earlier popes.47


45Supra note 34 at 55.

46
46Supra note 33 at 3.
47
Id note 33 at 16.









It is important to remember that while these various laws

were multiplying and increasing in complexity, they were

still operating at a common law level. No statutory pro-

visions existed in the canon law until Gregory IX's decrees

in 1230. In the Ninth Century, however, one attempt at

consolidation of the legal principles governing canon law

prevailed which helps to cast some light on the early

development of sovereign immunity.

Then out of the depth of the ninth century
emerged a book which was to give law to mankind
for a long time to come. Its core was the Hispana;
but into it there had been foisted besides other for-
geries, some sixty decretals professing to come from
the very earliest successors of St. Peter. The
compiler called himself Isidorus Mercator. .
The false decretals are elaborate mosaics made up
out of phrases from the Bible, the fathers, genuine
canon, genuine decretals, the West Goth's Roman
law-book; but all these materials, wherever collected,
are so arranged as to establish a few great prin-
ciples: the grandeur and superhuman origin of
ecclesiastical power, the sacrosanctity of the
persons and the property of bishops, and, though
this is not so pominent, the supremacy of the
bishop of Rome.'

Mercator's work is of major importance to this

study. According to Pollock and Maitland, Mercator express-

es (what this researcher finds to be) the first legal refer-

ence to the principle of sovereign immunity.

Above all, no accusation can be brought against
a bishop so long as he is not despoiled of his
see: Sioliatus episcopus ante omnia debet
restitui.79



48Supra note 33 at 17.

49Id note 33 at 17.









Most legal observers have attributed the concept of sovereign

immunity to the feudal legal system. The above reference,

however, reveals that the concept was imbedded in the canon

law before passing on to the feudal system.

During the Ninth Century, canon law's influence on

England took two separate paths. First, the Catholic Church,

in its attempt to spread Christianity throughout Europe, was

preserving and transmitting the canon legal system which was

based on the Roman "law of equity." Since England was one

of the many countries converted to Christianity, it (too)

began to adopt this legal system in conjunction with its

other legal heritages. Therefore, ecclesiastical law was

being created in England through the merger of the operating

civil law system and the Church's canon law. As noted

previously,50 the Canon law possessed an element of immunity

from tort which would also become merged with the new English

Ecclesiastical law.

The second path of transmission is the method by

which canon law influenced the feudal system which provided

the legal basis for English law.


The Feudal System

While the feudal system existed in northern Europe

before the fall of the Roman Empire, it did not become



oSupra note 33 at 17.









prevalent until around 800.SL Prior to this time, civil

laws either did not exist or were ignored. It was inevitable,

however, that the canon law system and the feudal system

would influence each other and, eventually, merge. The

Church found it useful to endorse certain feudal lords who

would in return for this endorsement, spread and support the

dogma of the Church.

It is believed by many that the feudal system has

been the vehicle which transported the principle of sovereign

immunity into statutory law. This system consisted of a

hierarchy of lords solely responsible to a single king (of a

country). Each lord derived his power from the king's

sanction; and the king derived his power from the collective

power of his lords who supported him maintained the king in

his position of power. Under the "divine right of kings"

concept, the king claimed sovereignty over his kingdom

because he was sanctioned by God and acted as God's regent

on earth. He claimed that he derived his power from God and

that only God could take it away.

Since each lord was, in essence, a little king of

his fief, his powers over the people and activities of his

fief were almost unrestricted. One custom that was established

during this period was that the lord of the fief was also

the law-maker and judge of the fief. Since this arrangement

places the lord (for all practical purposes) above the law,


5Supra note 9 at 183.
Iint









a type of common law immunity from suit was developed. The

only person who could hold a lord legally responsible for

his actions was the superior power that gave him his fief--
52
the king.2

Therefore, sovereign immunity was a common law

principle which evolved from two sources. First, the canon

law of the Church endorses this concept as mentioned earlier

in Mercator's work.53 Second, the concept developed as a

common law principle that grew out of the feudal system

(which was also influenced by canon law).


Unification of the English Legal System

English law, as we know it today, began to evolve

shortly after the Norman Conquest in 1066. The Norman

Conquest caused a consolidation of all the influences on

English law to take place. The feudal system, the Church

canon law, and the historical heritage of Roman civil law

all merged into a common law system.

In 1100, Henry I became the first king of England

whose authority extended over all of what is known as modern

day England. In uniting England, Henry I took two actions

which would affect his successors. First, he was able to

have himself recognized by all the English people as Sover-

eign of England (which technically, he inherited from



52Supra note 22.

53Supra note 33 at 4-5.









Rufus William the Conqueror's son). This sovereignty

entitled him as the law-giver, law-maker, and supreme judge

of the realm. It also made him immune from suit. Second,

he established the beginnings of a judicial system. In this

judicial system, "the King sat in person in Curia regis.54

Because the king held court in different locations during

the year, suitors were required to follow the king in order

to pursue whatever legal actions they were seeking. To

compensate for this problem, Henry divided the court into

two systems, one would continue to follow the king and

maintain the legal concept of Curia regis; the other court

was permanently based in Westminister and became known as

the Exchequer.55

Henry II assumed the English throne in 1154 and made

great progress in the formation of an equitable and just

judicial system. Under him, the Exchequer became known as

the Bench. However, a struggle began between Henry II and

Rome concerning which set of legal laws were to prevail in

the English civil courts--the English civil laws or the

Roman canon laws. Henry TI's attempt to check the power of

the clergy lead to the fatal dispute with Archbishop Becket

of Canterbury.56 Pollock and Maitland report that Henry was



541 W. HOLDSI\ORTH, A HISTORY OF ENGLISH LAW 23 (1959).
55
Supra note 34 at 131.

5Supra note 9 at 739.









so angered by his power being usurped by Rome, that he made

assurances that civil law and the king's sovereignty would

prevail in future legal contests.

During the first half of the twelfth century
the claims of the church were growing, and the duty
of asserting them passed into the hands of men who
were not mere theologians but expert lawyers. Then,
as all know, became the quarrel between Henry and
Becket. In the Constitutions of Clarendon (1164)
the king offered to the prelates a written treaty,
a treaty which, so he said, embodied the 'customs'
of his ancestors, more especially of his grandfather.
Becket, after some hesitation, rejected the con-
stitutions. The dispute got hot; certain of the
customs were condemned by the Pope. The murder
followed, and then Henry was compelled to renounce,
though in carefully guarded terms, all his innova-
tions. But his own assertion all along had been that
he was no innovator; and though the honours and
dishonours of the famous contest may be divided,
the king was left in possession of the greater part
of the field of battle. At two points he had been
beaten:--the clerk suspected of felony could not be
sentenced by, though he might be accused before, a
lay court; appeals to Rome could not be prohibited,
though in practice the king could, when he chose,
do much to impede them. Elsewhere Henry had
maintained his ground, and from his time onwards the
lay courts, rather than the spiritual, ar9 the aggressors
and the victors in almost every contest.

This incident is indicative of the type of sovereignty which

English monarchs possessed during this period. Immunity

evolved from this sovereignty in civil matters, but the king

still had to answer to Rome's canon law. Canon law was

still the dominant law until Henry III's (1216) and Edward I's

(1272) reigns. It was during their reigns that the split in


5Supra note 33 at 122-123.









canon law and English civil law became severe enough to be

labeled as a separation.5

Under Edward I's reign, three courts emerged which

were the early basis for today's English Courts-- The Common

Bench, The King's Bench, and King in Council.59 Along with

the judicial structure being stabilized and formalized, the

concept of immunity was set as a common law doctrine.

At least as early as the Thirteenth Century,
during the reign of Henry III (1216-1272), it was
recognized that the king could not be sued in his
own courts, but this immunity did not imply that the
sovereign was above the law. To the contrary, the
king was regarded as the fountain of justice and,
as such, bound by law and conscience to redress
wrongs done to his subjects. This conception appears
to account for the initial development of remedies
against the ruling sovereign as these began to take
shape during the reign of Edward I (12721307).60

Therefore, the doctrine of sovereign immunity

began to blossom forth under the reign of Henry III and

Edward IV. Initially, this sovereign immunity did not apply

the maxim "The King can do no wrong"61 but rather endorsed

the maxim "The King is the fountain of justice."62 This

difference is important. Under this initial type of sover-

eign immunity, the king cannot be sued but is duty bound to

abide by his own laws. Sovereign immunity under the reign

of ilenry VIII is quite different.


58Supra note 9 at 739.

91d note 9 at 131.

lSupra note 30 at 3.

6138 AM. JUR., MUN. CORPS., :573, 266.

2Sira note 33 at 5.









There were few major developments concerning the

law and sovereign immunity until the rise of the Tudors in

the Fifteenth Century. The struggle of the Tudors line

concerning the law, immunity, and the Holy Roman Empire

seems to be exemplified by the reign of Henry VIII. It was

during his reign that immunity from prosecution and suit

moved from common law status to statutory law status.

Keir and Lawson, when speaking of Henry's prero-

gatives, are quick to point out,

The chief among his advantages in litigation
was that he could not be made defendant to an action
at law; this was hardly a prerogative in the earlier
Middle Ages since it was shared by other lords, being
merely an application of the feudal rule that a lord
cannot be sued in his own court. It later came
quite correctly to be regarded as a prerogative;
for when the King's courts had become national courts
and absorbed the greater part of the legal business
of the country, the King's immunity ceased to have any
real connection with feudalism.63

The other prerogative64 was inherited from "the medieval

lawyers (who) had held the view that the law was a bridle on

the King, and in their famous maxim, 'The King can do no

wrong,' they had insisted that his power extended to do only

what is rLght."65

Henry VIII had decided to choose another wife but

was opposed by the Pope who still claimed sovereignty (even

over kings). Henry had, as a part of his royal prerogatives,



Supra note 9 at 74.

641d note 9 at 239.

65GARETH JONES, THE SOVEREIGNTY OF THE LAW 93 (1973).









first, immunity from prosecution; second, supposedly the

"Divine Right of Kings" concept; and third, the fact that

the "King can do no wrong." His solution was simple. He

declared first, that he was given his power from God and God

alone (Divine Right of Kings); second, that he was immune

from all suits; because third, he was sovereign and not

under the authority of anyone, including the Bishop of Rome.

His realm is declared to an empire. and his
crown imperial, by many acts of parliament, par-
ticularly the statutes 24 Henry VIII. c. 12. (1532)
and 25 Henry VIII. c. 28. (1533); which at the same
time declare the king to be the supreme head of the
realm in matters both civil and ecclesiastical,
and of consequence inferior to no man upon earth,
dependent on no man, accountable to no man
Hence it is, that no suit or action can be brought
against the king, even in civil matters, because
no court can have jurisdiction over him. For all
jurisdiction implies superiority of power:
Authority to try would be vain and idle, without an
authority to redress; and the sentence of a court
would be contemptible unless that court had power
to command the execution of it: but who, says Finch,
shall command the king? Hence it is likewise, that
by law the person in his reign be completely tyrannical
and arbitrary: for no jurisdiction upon earth has
power to try him in a crimgial way; much less to
condemn him to punishment.

It was at this point, then, that the feudal concept

of "The King can do no wrong" and "Sovereign Immunity"

(which were common law based) were combined with the civil

law. This produced the general concept of Sovereign Immun-

ity which has been transported to America in the form of

"Governmental Immunity from Liability."


66Supra note 65 at 94-95.









It is ironic that the Roman Catholic Church and

Canon law, which were one of the primary influences on the

establishment of the common law doctrine of sovereign

immunity, was also the primary cause of the principle move-

ment from common law status to statutory law status. Also

imbedded in the many acts of Henry VIII which declared him

sovereign of all England and free from interference from

Rome was the statutory establishment of the "divine right of

Kings" concept.

. for where this your Grace's Realm recognifing
no Superior under God, but only your Grace, hath
been and is free from Subjection to any Man's Laws,
but only to fuch as have been devifed, made and obtained
within this Realm, for the Wealth of the fame, or to
fuch other as by Sufferance of your Grace and your
Progenitors, the People of this your Realm have taken
at their free Liberty, by their own Confent to be
ufed amongft them, and have bound themselves by long
Ufe and Cuftom to the Obfervance of the fame, not
as to the Obfervance of Laws of any foreign Prince,
Potentate or Prelate, but as to the cuftomed and
ancient Laws of this Realm, originally eftablifhed as
Laws of the fame, by the faid Sufferance, Confents and
Cuftom, and none otherwise: (4) It ftandeth there-
fore with natural Equity and good Reafon, that in
all and every fuch Laws human made within this Realm,
or induced into this Realm by the faid Sufferance,
Confents and Cuftom, your Royal Majefty, and your
Lords Spiritual and Temporal, and Commons, repre-
fenting the whole State of your Realm, in this your
moft high Court of Parliament, have full Power and
Authority, not only to difpenfe, but alfo to authorize
fome elect Perfon or Perfons to difpenfe with thofe,
and all other human Laws of this your Realm, and with
every one of the, as the Quality of the Perfons and
Matter fhall require; (5) and alfo the faid Laws,
and every of them, to abrogate, annul, amplify or
diminifh, as it shall befeen unto your Majefty, and
the Nobles and Commons of your Realm prefent in your
Parliament meet and convenient for the Wealth of your
Realm, as by divers good and wholfome Acts of Parliaments,









made and eftablifhed as well in your Time, as in the
Time of your moft noble Progenitors, it may plainly
and evidently appear.67

Henry VIII was also astute enough to insure that from that

time (1532) on, all subjects of England, including the
68
clergy, were subject to the laws of England. This move

helped to assure Henry of total sovereignty from Rome and

Canon law.

There appears to be no case law defending Henry VIII's

position on sovereign immunity. However, one of his succes-

sors, James I, called upon this prerogative in 1607 when

suit was brought against him for causing damage to a subjects

property while digging for saltpetre (an ingredient used in

the manufacture of gunpowder).69

The English court ruled that the statute III

Henry VIII, CXV made the King immune from suit and that the

individual must incur the damages.

as, for saving of a city or town, a house shall
be plucked down if the next be on fire: and the
suburbs of a city in time of war for the common
safety shall be plucked down; and a thing for the
commonwealth every man may do without being liable to
an action, as it is said in III Henry VIII, CXV.
And in this case the rule is true, Princeps et res-
publica ex just causa possunt rem meam auferre.70


6XXV HENRY VIII, C. XXI

68XXIV HENRY VIII, C. XII F, C. XIX.

6The Case of the King's Prerogative in Saltpetre,
12 Co. Rep. 12 (1607).

70Supra note 69.









The decision in this 1607 case, reaffirms that sovereign

immunity was placed in statute by Henry VIII and that it

made the sovereign immune from all suits.


William Blackstone's Contribution

In 1758, the famed English law historian and

scholar, William Blackstone, wrote his famed, An Analysis of

the Laws of England which documented the evolution of sover-

eign immunity into what had come to be known as "the King's

prerogatives."71 Blackstone defines this prerogative as

follows:

Prerogative is that special Power and pre-
eminence, which the King hath above other Perfons, and
out of the ordinary Courfe of Law, in right of his
regal Dignity.72

Regarding the king's role in English justice, Blackstone

wrote:

The King is alfo the Fountain of Juftice, and
general Confervator of the Peace; and therefore may
erect Courts, profecute Offenders, pardon Crimes,
and iffue Proclamations.73

Blackstone's contribution to the formalization of the sover-

eign immunity concept is important to this study since it

will be pointed out (in the succeeding chapter) that many

courts relied on Blackstone's reporting of this principle in

their dicta which subsequently established the concept in

American law.


711 1V. BLACKSTONE, AN ANALYSIS OF THE LAWS OF ENGLAND
(1758).

72Supra note 71 at 75.

73Id note 71 at 18.









England's Abrogation of Immunity

The doctrine of sovereign immunity became so

firmly entrenched into the English legal system, that it was

not until late in the Nineteenth Century that the English

Parliament and courts began to seriously challenge the

concept.

In 1860, Parliament passed into law "The Petitions

of Right Act, 1860" which formalized the procedure of
74
petitioning the crown to bring suit against the crown.7

While this right had always existed in English law, Holds-

worth reports that few, if any, subjects had ever taken

advantage of this right because of the intricate legal

procedures.75 The Petitions of Right Act, 1860 outlined a

fifteen step procedure to petition the crown for permission

to sue the crown. It established a time period of twenty-

eight days for the reigning monarch to either accept or

reject such a petition as well as designating "any One of

the Superior Courts of Common Law of Equity at Westminister"
76
as having jurisdiction over such suits.

However, The Petitions of Right Act, 1860 did not

authorize suits against the crown for torts.



7423 VICTORIA I, C34 (1860).

76 HOLDSWORTH, THE HISTORY OF ENGLISH LAW 266 (1956).
76
Supra note 71.









The remedy was available for the recovery of
property, whether land or goods, for breach of contract
and indeed, it would seem, in every case where the
suppliant would have had an action against a subject
with the single exception of tort. The exception
covered not merely cases where it was alleged that the
King himself had committed a tort but also cases where,
had he been a subject, he would have been vicariously
liable for the torts of his servants. This meant that
Petition of Right could not be used as a remedy for
any torts committed by anyone in the course of govern-
ment.77

Therefore, the Petitions of Right Act, 1860 did not really

abrogate sovereign immunity from tortious acts, but rather

clarified the petition procedure which had always been an

Englishman's legal right.

In 1866, an English court determined that public

bodies are responsible for the negligent acts of their
78
employees.7 The court, in Mersey Trustees v. Gibbs and

The Same v. Penhallow, ruled that a public entity, like the

master-servant relationship, is liable for damages caused by

acts of its employees.79 The decision in this case opened

new avenues for liability suits in England. Public entities

were no longer protected from suits where damages were

caused by official acts of employees.

The major case which abrogated the sovereign
80
immunity concept was a public school case in 1890.80 In



Supra note 15 at 203.

78Mersey Trustees v. Gibbs, L.R.1 H.L.93 (1866).
79
7Supra note 78.

80Crisp v. Thomas 63 LINS 756 (1890).









this case, a school teacher was being sued for damages

because a portable blackboard fell upon and injured a student.

The student's parents sued for damages claiming teacher

negligence. The Queen's Bench Division Court held that the

fall of the blackboard was not evidence of negligence, but

if there had been negligence, the school or the teacher

could be held liable.

Then, if there was negligence, someone must be
liable. Fees are paid for the schooling, therefore
someone must have duties towards the children. The
defendant is the only active member of the committee;
he was the master of Rider pro hac vice. (Lord
Esher, M.R.--It seems that the Ifefndiant could not have
forbidden Rider to teach.) The fact of hil position
being only honorary is of no consequence.8

This court decision is quite important to this study because

it is the first instance of a court abrogating the sovereign

immunity concept whether it be statutory law or common law

based. This case also reversed the findings of lower English

courts, especially in the case of Russell v. The Men Dwelling

in the County of Devon82 which many scholars claim to be the

basis of American governmental immunity.83

It should be noted that the Russell case was later
overruled by the English courts, and that in 1890 it
was definitely established that in England a school
board or school district is subject to suit in tort
for personal injuries on the same basis as a private



81Supra note 80 at 756.
82
2100 ENG. REP. 359 (1788).

83Lee 0. Garber, Origin of the Governmental Immunity
from Tort Doctrine, YEARBOOK OF SCHOOL LAW 235-243 (1964).









individual or corporation. (Crisp v. Thomas, 63
L.T.N.S. 756 (1890).) Nonimmunity has continued
to be the law of England to the present day.84

Following this landmark decision by the English

courts, many tort liability suits were filed against govern-

mental agencies (especially school systems).

In a great number of cases, most of which involved
the personal injuries of a pupil or student resulting
from alleged negligence of an educational authority
or that of a school official, schoolmaster or teacher,
or other school personnel, such authorities have
been treated as liable in tort to the same extent
as private persons or corporations, although no
mention was made therein as to the doctrine of
immunity.85

In 1893, Queen Victoria and the British Parliament

passed The Public Authorities Protection Act, 189386 where

the act attempted to insure certain public officials at

least a rudimentry immunity against suit. This act also

specified certain provisions which must be followed before a

suit against the state could be brought.

Following the official passage of this act, the

British courts became swamped with education tort suits

against school boards.87 Finally, in 1939, Parliament

passed the Limitation Act, 1939, s. 31 where all sovereign

immunity was abolished.88 Chapman suggests that this may



84Supra note 3.
85160 ALR 84.

8656 VICTORIA I, C. 61 (1893).

87Supra note 85 at 84.
8S. CHAPMAN, STATUTES ON THE LAW OF TORTS 439 (1963).









have been a move to abolish immunity on a statutory level

rather than allow British courts to totally abrogate it.89

In 1954, the Parliament passed The Law Reform Act,
90
195490 which removed the restrictions and provisions (set up
Q91
in 1893 by the Public Authorities Protection Act, 189391)

which private individuals needed to meet in order to bring

suit against the state. This latest act is considered to

remove the last obstacle in absolute and total abrogation of

sovereign immunity in England.





























9Supra note 88 at 440.

902 ELIZABETH II, c 36 (1954).

91
Supra note 86.









Summary


The evolution of the sovereign immunity concept

into the English legal system is a complex and vague prin-

ciple to follow. A combination of feudal influence and

Canon law (which was derived from Roman law) supplied the

base for the common law evolution of the principle. The

Roman civil law supplied the statutory basis for the prin-

cipal to become imbedded in law.

The reigns of Henry II, Henry III, and Edward I

allowed the sovereign immunity concept to flourish indepen-

dent of Canon law. Henry VIII's dispute with Rome became

the vehicle for this monarch's exercise of his sovereignty.

Immunity against suit was placed into statutory law as a

means to protect the king against the Canon forces of Rome

as well as increasing the king's already awesome power.

Sovereign immunity was the rule of law until 1890

where a British court abrogated it for school boards and

school districts. As a compromise move, Queen Victoria

passed the Public Authorities Protection Act, 1893 which

partially abrogated immunity while protecting the concept as

applied to certain public officials. Queen Victoria finally

abrogated all sovereign immunity in 1939. However, the

restrictions and provisions set in 1893 were still in effect.

QuOen Elizabeth passed The Law Reform Act in 1954 which

removed these restrictions and, consequently, totally




39



abrogated all sovereign immunity in England. So, 422 years

after Henry VIII had the concept of sovereign immunity

placed in statute, and many more years after the development

of the common law basis for the concept, England has finally

abandoned sovereign immunity as a means of protecting the

state against suit.















CHAPTER 3

DEVELOPMENT AND EVOLUTION OF
GOVERNMENTAL IMMUNITY IN THE UNITED STATES


Prior to 1776, the American colonies were subject

to and governed by the laws and the courts of England. One

of the common laws which was maintained in the colonies was

the concept of sovereign immunity. A colony could not be

sued since the colony was an extension of the English crown

and protected by the privilege of sovereign immunity.

In 1776, the colonies declared their independence

from England. During and following the Revolutionary War,

each state assumed governmental control of the state functions

which were previously performed by the English crown (and

its appropriately appointed ministers and governors).

Because the United States is an offspring of England, its

governmental, legal, and judicial systems are very similar

to those of England. Many of the legal concepts developed

and used in England were (and still are) endorsed by our own

system of government. England's colonial rule simply gave

way to each state's individual governmental rule. The

method of governing changed little except to correct for the

obvious inequities which caused the split in the first

place.









One of the specific elements or principles of this

legal system which the newly formed state governments inherited

and endorsed was the concept of sovereign (governmental)

immunity. In England, the state was immune from suit because

the state was an extension of the English crown who is

immune from suit.92

Even though it is apparently inconsistent with the

principles of a democratic government, the founding fathers

of each and every individual state (as well as the federal

government) readily accepted this notion.


Method of Transmission

The exact method of transmission of the principle

of sovereign immunity in England to governmental immunity in

the United States is difficult to locate. As stated pre-

viously, the underlying principles of the governmental

immunity concept seem inconsistent with the reasoning that

lead to the formation of the United States. The sovereignty

of the English crown, the privileges of that position, the

prerogatives of the kingship, and the unchallengeable

arbitrary and capricious acts made by the English crown were

the primary reasons for this country's formation. Yet, the

leaders of this new republic, readily accepted and endorsed

the governmental immunity concept which gave the state (and

federal) government sovereignty, which gave the state (and


92. L. PROSSER, LAW OF TORTS 971, (1971).









federal) government one of the privileges and prerogatives

that used to be enjoyed by the English king, and which gave

the state (and federal government) the power to act without

fear of legal reprisal.

Many legal scholars and authorities are at a loss

to explain why such a concept was allowed to develop in the

United States. William L. Prosser, in his textbook, Law of

Torts, contends:

Just how this feudal and monarchistic doctrine
ever got itself translated into the law of the new
and belligerently democratic re public in America is
today a bit hard to understand. 3

The National Association of Attorneys General, in their

publication, Sovereign Immunity, The Liability of Government

and Its Officials, query:

The great mystery is how this absolutist,
monarchical notion came to be an accepted legal
principle in a new democracy like the United States
of the early nineteenth century. One can scarcely
imagine any idea more antithetical to the basic
tenents of democratic government than that which
holds that the people, at whose pleasure and for
whose benefit the government exists, cannot sue
their9 representatives when they have been wronged by
them.

Edwin M. Borchard, in his famed article, "Government Liability

in Tort," states:

The jurisdiction of the King's courts was purely
personal. How it came to be applied in the United
States of America, where the prerogative is unknown



93Supra note 92.

94SOVEREIGN IMMUNITY: THE LIABILITY OF GOVERNMENT AND
ITS OFFICIALS (published by the National Association of
Attorneys General) 1 (1975).










is one of the mysteries of legal evolution. Admitting
its application to the sovereign and its illogical
ascription as an attribute of sovereignty generally,
it is not easy to appreciate its application to
the United States, where the location of sovereignty--
undivided sovereignty, as orthodox theory demands--
is a difficult undertaking.-'

Alexander and Solomon, in their book, College and University

Law, speculate that:

It is difficult to comprehend why in the
United States, where there was such great fear of
tyranny of kings, this doctrine was unquestionably
adopted so wholeheartedly. It would have been
reasonable to assume that in the absence of sheer
oversight by the framers of the constitution,
immunity of the government would have been denied
or at least carefully circumscribed."

Prosser and Wade, in Torts: Cases and Materials, observe

that "(t)he explanations for the initial acceptance of this

feudal and monarchistic doctrine in the democracy of this

country are quite obscure."97

Mr. Justice Klingbiel of the Supreme Court of

Illinois in the famed Molitor v. Kaneland decision ponders

how the concept of governmental immunity survived in the

United States since it conflicts with the basic concept of

the law of torts.



9E. i. Borchard, "Government Liability in Tort," 24
YALE LAW JOURNAL 4 (1924).

9KERN ALEXANDER Q ERWIN S. SOLOMON, COLLEGE AND
UNIVERSITY LAW 649 (1972).
9W. L. PROSSER AND J. W. WADE, TORTS: CASES AND
MATERIALS 1117 (1971).









It is a basic concept underlying the whole
law of torts today that liability follows negligence,
and that individuals and corporations are responsible
for the negligence of their agents and employees
acting in the course o F their employment. The
doctrine of governmental immunity runs directly
counter to that basic concept. What reasons, then,
are so impelling as to allow a school district,
as a quasi-municipal corporation, to commit wrong-
doing without any responsibility to its victims,
while any individual or private corporation would
be called to task in court for such tortious
conduct?98

The Supreme Court of Florida in Hargrove v. Town of Cocoa

Beach noted that the "divine right of kings" concept which

is embodied in governmental immunity was abolished because

of the Revolutionary War.99 The court could not understand

how the principle had been maintained. And a California

court found that:

The whole doctrine of governmental immunity from
liability for tort rests upon a rotten foundation.
It is almost incredible that in this modern age
of comparative sociological enlightenment, and in
a republic, the medieval absolutism supposed to be
implicit in the maxim, 'the King can do no wrong,'
should exempt the various branches of the govern-
ment from liability for their torts, and that the
entire burden of damage resulting from the wrongful
acts of the government should be imposed upon the
single individual who suffers the injury, rather
than distributed among the entire community con-
stituting the government, where it could be borne
without hardship upon any individual, and where it
justly belongs . Likewise, we agree with the
Supreme Court of Florida that in preserving the
sovereign immunity theory, courts have overlooked
the fact that the Revolutionary War was fought to
abolish that "divine right of kings" on which the
theory is based.100



Supra note 3 at 17.

99Barker v. City of Santa Fe 47 N.M. 85, 136 P.2d 480.

100Hargrove v. Town of Cocoa Beach 96 So. 2d 130 (1957).









In essence, the above authorities, scholars, and

courts question why a new nation, whose entire reason for

breaking away from its mother country is distaste with the

sovereign crown, would so heartily endorse and accept a

concept that "prima facie" appears to contradict that basic

premise. The authorities also agree that the exact method

of transmitting this immunity concept from England into the

United States' legal system is, at best, ambiguous.

In order to examine this unique migration and

adoptance of the sovereign (governmental) immunity principle,

it is necessary to divide this examination into the same

divisions as the governments are arranged. Therefore, the

balance of this chapter will look at first, governmental

immunity in the United States federal government, and second,

governmental immunity in the individual states.


The Federal Government and Immunity

In December 1787, the seventy-four delegates who

attended the Constitutional Convention submitted the Constitu-

tion of the United States to each state for ratification.

One particular article of the Constitution enlightens this

study regarding the liability of governments. Article III,

section 2, of the United States Constitution reads as follows:

The judicial Power shall extend to all Cases,
in Law and Equity, arising under this Constitution,
the Laws of the United States, and Treaties made, or
which shall be made, under their Authority;--to
all Cases affecting Ambassadors, other public Ministers
and Consuls;--to all Cases of admi ralty and
maritime Jurisdiction;--to Controversies to which
the United States shall be a Party;--to Controversies









between two or more Slatcs;--between a State and
Citizens of another Stat(,;--between Citizens of
different States;--berwoon Citizens of the same
State claiming Lands under Grants of different
States, and between a State, or the Citizens thereof,
and Foreign States, Citizens or Subjects.101

It is interesting to note that framers of the Constitution

were providing a vehicle for citizens of one state to sue in

equity another state, and for all "Controversies to which
102
the United States shall be a party" to be settled. A

strict interpretation of this article would lead one to

believe that the United States government is consenting to

being sued.

However, in 1788, when ratification no longer

seemed certain, Alexander Hamilton, James Madison, and John

Jay wrote 85 articles defending the Constitution. Paper

(article) number 81, written by Hamilton sometime between

April 4 and May 28 of 1788, contains a statement regarding

sovereign immunity.

It is inherent in the nature of sovereignty not
to be amenable to the suit of an individual "without
its consent." This is the general sense and the
general practice of mankind; and the exemption, as one
of the attributes of sovereignty, is now enjoyed by
the government of every State in the Union. Unless,
therefore, there is a surrender of this immunity in
the plan of the convention, it will remain with
the States and the danger intimated must be merely
ideal. The circumstances which are necessary to
produce an alienation of State sovereignty were
discussed in considering the article of taxation
and need not be repeated here. A recurrence to


]01U. S. CONSTITUTION, Article III, section 2

102Supra note 101.









the principles there es tab I shed will satisfy us
that there is no color to pretend that the State
governments would, by the adoption of that plan,
be divested of the privilege of paying their own
debts in their own way, free from every constraint
but that which flows from the obligations of good
faith. The contracts between a nation and individuals
are only binding on the conscience of the sovereign,
and have no pretensions to a compulsive force.
They confer no right of action independent of the
sovereign will. To what purpose would it be to
authorize suits against States for the debts they
owe? How could recoveries be enforced? It is
evident that it could not be done without waging
war against the contracting State; and to ascribe to
the federal courts, by mere implication, and in
destruction of a pre-existing right of the State
governments, a power which would involve such a
consequence would be altogether forced and unwar-
rantable.103

This statement implies that governments maintain their

immunity unless they specifically intend to abrogate it.

Therefore, it can be construed, in a liberal interpretation,

that since the United States federal government did not

specifically abrogate governmental immunity, that such

immunity was in effect.

The earliest federal tort case bears out this

point. In Little v. Barreme, the Supreme Court of the

United States held Little, a captain of a United States

warship, liable for damages even though the captain was

operating in "good faith" on instructions from the Presi-

dent.104 The appellees, owners of a French ship, did not

even attempt to sue the President of the United States or


103THE FEDERALIST PAPERS, No. 81 (Hamilton) (1788).

104Little v. Barreme 2 U.S. (Cranch) 170 (1804).









the Government since they (letermnincd that the United States

was operating under the privilege of governmental immunity.

In 1821, Supreme Court Chief Justice Marshall,

writing the opinion of the majority in Cohens v. Virginia

declared:

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.105

Chief Justice Marshall gave no defenses or reasons why

immunity would be a "universally received opinion." 06 He

did, however, make several references to Chisholm v. Georgia,

a case which examined sovereign immunity of an individual
107
state. This case will be discussed in succeeding sections

of this chapter. It was at this point then, in 1821, where

governmental immunity became a "formally" accepted principle

in federal law.

Prosser states that following the Cohens v.

Virginia case:

Consent to be sued began to appear in the
form of special legislation by Congress authorizing
particular plaintiffs to sue on particular claims.
Apart from the obvious possibility of political
influence, this of necessity involved considerable
delay and inconvenience, as well as inflicting
a considerable burden upon the time of Congress.108


105Cohens v. Virginia 19 U.S. 264 (1821).

106Supra note 92 at 971.

107Chisholm v. Georgia 2 U.S. (2 Dallas) 419 (1793).

0Supra note 97 at 1117.









In 1855, Congress, growing weary of passing

legislation on specific tort ca.scs, passed the Federal Court

of Claims Act.109

This Act makes the United States liable under
the local law of the place where the tort occurs,
for the negligent or wrongful acts or omissions of
federal employees within the scope of their employ-
ment "in the same manner and to the same extent
as a private individual under like circumstances."
It has been held to make the government liable
where the negligence of some employee is proved,
although he is not identified. It has been held to
mean that the United States may be impleaded as a
joint tortfeasor, and becomes liable for contribu-
tion where the local law permits it; and that it
creates liability to insurers on subrogation
claims.110

There were, however, several exemptions to this abrogation

of immunity. Parties could not sue the federal government

for claims arising out of:
111
1) Military service 112
2) Special activities of the government
3) "Assault, battery, false imprisonment, false
arrest, malicious prosecution, abuse of process,
libel, slander, misrepresentation, deceit, or
interference with contract rights."113

The United States Court of Claims did not, however, have

power to adjudicate findings under the 1855 statute. "This

was initially merely an advisory court making recommendations


10928 U.S.C.A. 1356, 1402, 1504, 2110, 2401, 2402,
2411, 2412, 2671-2680.

11Supra note 92 at 972.

11 28 U.S.C.A. 2680 (j).
11228 U.S.C.A. 2680 (i).

11328 U.S.C.A. 2680 (h).










to Congress."114 In 1863, the Court of Claims was empowered

to make effective judgements under the 1855 act.1 Some

authorities point out that even with the Federal Tort Claims

Act, very few tort claims received redress.116

Over 18 bills were introduced into Congress between

1919 and 1946 which intended to alter, amend, or replace the

1855 statute. Finally, in 1946, Congress passed the Federal

Tort Claims Act of 1946.117 This act has been heralded as

being "a very important step forward."118 It abrogated

governmental immunity from liability in tort for the United

States and provided for litigation of tort claims against

the government. Many of the exemptions found in the 1855

act still apply, but redress became much easier to acquire.

Since the passing of this act, the Federal Court of Claims

has heard and ruled on a great number of tort liability

cases. It is important to point out that in 1855 the United

States federal government attempted to abrogate its immunity

from tort liability 38 years before England did so. However,

England totally abrogated their immunity at that time--the

United States did not do so until 1946.119


114Supra note 97 at 1117-1118.
115Id note 97 at 1118.

116Supra note 92 at 972 and note 98 at 1118.
11728 U.S.C.A. 9 1346.

118Id note 92 at 973.

19Supra note 86.









The Individual States and
Governme Lta I immunity

Unlike the federal government of the Eighteenth

Century, the state governments which replaced the English

colonial governments did not have absolute control regarding
120
their governmental immunity status. As pointed out earlier,

the newly adopted constitution of 1788 gave federal courts

jurisdiction over suits between a citizen of one state and

another state. This was viewed by many states to be an

infringement on the sovereignty which Hamilton refers to in

The Federalist Papers (No. 81).121 Individual states did

inherit some immunity form from the previous English govern-

ment for there is no mention of the possibility of a citizen

of a state suing the state in which he enjoys his citizenship.

This is not to mean that an Englishman could not sue the

crown. For if an Englishman petitioned the crown to allow

itself to be sued (and the crown agreed to do so), then suit

could be brought against the English crown. States, through

common law transference, were able to maintain their immunity

with their own citizens.

In 1793, the newly formed Supreme Court of the

United States ruled on a governmental immunity case that is
122
of great importance. Not only did Chisholm v. Georgia



120Supra note 101.

121Supra note 103.
1222 U.S. (2 Dallas) 419 (1793).









inspire quick passage and ratification of the Eleventh

Amendment to the United States Constitution, but it also

established a common law link regarding the transmission of

the governmental (sovereign) immunity concept into American

law.

The Chisholm case presents the question

Can the State of Georgia...be made a party-defendant
in any case...at the suit of a private citizen of
the State of South Carolina?12"

Chisholm, a resident and citizen of South Carolina, was

seeking compensation for the nonperformance of a contract

made with the State of Georgia. The attorney general of

Georgia claimed that no suit could be brought against the

state since the state was sovereign. The Supreme Court's

(of the United States) justices examined all the relevant

aspects of Georgia's inherited sovereign immunity in analyzing

the case.

Mr. Justice Iredell, in discussing the applicability

of English Law to the newly formed Union states:

I presume it will not be denied, that in
every State in the Union, previous to the adoption
of the Constitution, the only common law principles
in regard to suits that were in any manner admis-
sible in respect to claims against the State, were
those which in England apply to claims against the
crown is that which is called a Petition of right...
but now none can have an action against the King,
but one shall be put to sue to him by petition ...
The same doctrine appears in Blackstone's Commen-



123Mr. Randolph, Attorney General for the United States,
arguing for the plaintiff, Supra note 122 at 420.









tries. 1 Vol 243.124 The same doctrine is also
laid down with equal explicitness, and without
noticing any distinct ion whatever, in Blackstone's
Commentaries, 3 Vol. 256, where he points out the
petition of right as one of the common law methods
of obtaining possession or restitution from the
crown, either of real or personal property; and
says expressly the petition of right 'is of use where
the King is in full possession of any hereditaments
or chattels, and the petitioner suggests such a
right as controverts the title of the crown, grounded
on facts disclosed in the petition itself.'12

Justice Blair, while endorsing the concept of sovereignty

and immunity from suit, points out

And if a State may be brought before this
Court, as a Defendant, I see no reason for confining
the Plaintiff to proceed by way of petition; indeed
there would even seem to be an impropriety in pro-
ceeding in that mode. When sovereigns are sued
in their own Courts, such a method may have been
established as the most respectful form of demand;
but we are not now in a State-Court; and if sover-
eignty be an exemption from suit in any other than
the sovereign's own Courts, it follows that when
a State, by adopting the Constitution, has agreed
to be amenable to the judicial power of the United
States, she has, in that respect, given up her
right of sovereignty.126

Mr. Justice Wilson, however, points out that the Constitution

of the United States is conspicuously absent of the word

"sovereign";

To the Constitution of the United States
the term SOVEREIGN, is totally unknown. There is
but one place where it could have been used with
propriety. But, even in that place it would not,
perhaps, have comported with the delicacy of those,



124Supra note 122 at 437.
125 ote 122 at 442.
Id note 122 at 442.
Id note 122 at 452.









who ordained and establi :;hed that Constitution.
They might have announced themselves "SOVEREIGN"
people of the United States: But serenely conscious
of the fact, they avoided the ostentatious
Declaration.127

In examining the historical development of sover-

eignty and immunity, Wilson refers to Blackstone's Commen-

taries several times.

The law, says Sir William Blackstone, ascribes
to the King the attribute of sovereignty: he is
sovereign and independent within his own dominions;
and owes no kind of subjection to any other potentate
upon earth. Hence it is, that no suit or action can
be brought against the King, even in civil matters;
because no Court can have jurisdiction over him:
for all jurisdiction implies superiority of power.
This last position is only a branch of a much more
extensive principle, on which a plan of systematic
despotism has been lately formed in England, and
prosecuted with unwearied assiduity and care. Of
this plan the author of the Commentaries was, if
not the introducer, at least the great supporter.
He has been followed in it by writers later and less
known; and his doctrines have, both on the other and
this side of the Atlantic, been implicitly and gen-
erally received by those, who neither examined their
principles nor their consequences.128 . In Enland,
according to Sir William Blackstone, no suit can be
brought against the King, even in civil matters.
So, in tha Kingdom, s the law, at this time,
received.

Finally, however, Judge Wilson concludes:

It is plain then, that a State may be sued,
and hence it plainly follows, that suability and
State Sovereignty are not incompatible.10



127Supra note 122 at 454.
128Id note 122 at 458.

1291d note 122 at 460.

130Id note 122 at 473.









Consequently, the Supreme Court of the United States ruled

that even though a state may not give consent to be sued or

even oppose being sued, a citizen of another state may sue

the state because Article III, section 2 of the Constitution

authorizes such suits. In upholding the power of the federal

courts, the Supreme Court permitted both tort and contract

liability suits since the article in question reads "(t)he

judicial Power shall extend to all Cases . (italics

added).131 The Constitution does not specify either contract

suits or tort suits.

Chisholm v. Georgia, one of the earliest Supreme
Court cases on the subject, held that Article HII
of the Constitution gave the federal courts juris-
diction over suits against a state by citizens of
another state, whether or not the state had consented
to suit. This decision caused a great deal of turmoil
among the states, who feared that this would open
the door to innumerable suits based on debts accrued
during the Revolutionary War, and eventually bank-
rupt the fledgling state treasuries.132

This case's great importance to this study comes from the

various justices' discussions regarding the sovereign and

governmental immunity aspects of the case.

The situation in 1793 for the states, then was

thus:

1) States, by inheriting sovereignty from
colonial governments, exercised govern-
mental immunity and could not be sued
by one of their own citizens.


I 31SL.a io)te 101.

Su2r5 a note 83.









2) Due to ArticLu Ill, section 2 of the
ratified 17s8 United States Constitution,
states could hbI sued in federal court
by citizen, of other states.

As previously mentioned in this paper, many scholars

believe that sovereign immunity was transmitted to this
133
country through the Russell v. Men Dwelling in Devon case.

They maintain that this legal precedent set the foundation

for the establishment of this concept in the United States.

However, this case was decided in 1788. The Supreme Court

of the United States decided the Chisholm v. Georgia case

in 1793. Five years had passed since the supposedly significant

Russell decision, yet there is not one reference to this

earlier case in Supreme Court's decision. The Supreme Court

of the United States, instead, examines the concept of

sovereign immunity in terms of Blackstone's Commentaries

on the Laws of England.13 Mr. Justice Iredell states that

everyey man must know that no suit can be against a legis-

lative body."135 He then references "1 Blackstone's Commen-

taries 243" to prove his point. In discussing the common

law transmission of ancient law into modern law, the justice

writes:



133Russell v. Men of Devon, 100 Eng. Rep. 359 (1788).
134
1Supra note 83.
13Supra note 122 at 437.









I take it for granted, that when any part of
an ancient law is to be applied to a new case, the
circumstances of the new case must agree in all
essential points with the circumstances of the old
cases to which that ancient law was formerly appro-
priated.136

He then finds the circumstances of sovereign immunity in

ancient times to agree with the circumstances of the new

case.

The vital point of this decision to this study is

that the United States Supreme Court, the highest court in

the land, did not base its decision on some obscure English
137
case,3 but rather on the writings of the scholar who

helped to formalize and legitimize the concept of sovereign

immunity in England. Russell and Others v. The Men Dwelling

in the County of Devon38 is probably not the primary method

of transmission of the common law principle of sovereign

immunity from England to the United States, but rather

Sir William Blackstone and his Commentaries on the Laws of

England provided the legal basis for adoption of this prin-

ciple into American law. The courts of the United States

relied on the English scholars' interpretation of English

laws much more than obscure English case law when justifying

their opinions on the sovereign immunity principle.



136Supra note 122 at 447.
137
137Supra note 133.
138 note 133.
Id note 133.








Russell and Others v. The Men Dwelling in the

County of Devon139 was not followed by a court in the United

States until 1812 when a Massachusetts court ruled on Mower

v. Inhabitants of Leicester140 This left a time period of

24 years where United States courts were ruling on public

tort liability cases without using Russell as precedent.


Early Immunity Cases in the States

The 24 year time period between Russell and Mower

(1788-1812) is very important to this study. If the theory

advancing the "Russell" connection is correct, then on what

basis did the various state courts rely in cases concerning

immunity during this 24 year period? If it can be shown

that many state courts relied on the principles of law which

existed prior to Russell or on principles other than Russell,

then the Russell theory is questionable.

Many cases were found involving actions against

public officials for tortious offenses. By far the most

popular type of cases were actions brought against local

sheriffs for damages resulting due to a prisoner escaping

from the town jail.141 During this time period, it was

generally held that the sheriff is liable for damages


139Supra note 133.

140Mower v. Inhabitants of Leicester 9 Mass. 246 (1812).

141Sheldon v. County of Litchfield 1 Root 158 Connn.
1790); Clarke v. Little, Johnson, and Webber 1 Smith 100
(N.IH., 1805); Moccubbin v. Thornton 4 Md 461 (1807); et cetera.









if he knew of the escape, aided in the escape, or if he knew
142
the jail was defective and this defect led to the escape.

Otherwise, the sheriff, being a public official, was held

immune from suit. However, none of these early "escape"

cases cited authorities or sources of law for their decisions.

Actions against other public officials (town

councilmen, constables, clerks, et cetera) were also prevalent

during the 24 year period in question.

In 1793, a Connecticut court ruled on a case where

the town constable spent bond funds and could not return

them to the proper person.143 The court ruled that

Towns are not liable or responsible for the conduct of
the constable ~yom they appoint, in the execution of
their office.

Another Connecticut case affirms the immunity privilege

without citing sources or references. In Willet v. Hutch-

inson, Town Clerk,1 a town clerk received a deed and

entered upon it "received for record," but forgot to record

it in town records, thereby causing the plaintiff monetary

damages. The court found


142Supra note 141, Clarke v. Little, Johnson, and
Webber 1 Smith 100 (1805).
143Hurlburt v. Marsh and the Town of Litchfield
1 Root 520 (1793.
144Sura note 143.

1452 Root 85 (1794).









That a town clerk being in officer of public trust
and confidence, much depended upon his duly attend-
ing to the law in the execution of his office,
and he, having once received a deed as town clerk
and entered upon it, "received for records", may not
suffer it to go out of his hands, unrecorded; as
he will be answerable in damages, o any person
that shall be prejudiced thereby.1

An early New Hampshire case involving (again) a

sheriff provides an interesting connection for the argument

of historical common law immunity.

It is an established principle of jurisprudence in
all civilized nations that the sovereign cannot
be sued in its own courts, or iy,4ny other, with-
out its consent and permission.

In 1797, a Delaware court ruled on a case4 much
149
like Russell49 where the town commissioners of Levy Court

chose not to repair a bridge over W. Clay Creek. The State

of Delaware brought suit against the local commissioners

seeking damages for "neglect" due to their failure to repair

the bridge. The court held "(T)he indictment quashed"150

Commissioners form a corporate body, and are not
indictable in their individual capacity.

The cases all go to show that judges, etc. are
not liable for mistakes, not for neglect on duty.151



14Supra note 145 at 86.

47Supra note 142 at 102.

1State v. Commissioners of the Levy Court 2 Del.
Cases 85 (1797).
149
Supra note 133.

50Supra note 148 at 88.
51d note 148 at 86.









A Massachusetts court held in 1804 that the town

clerk is not liable for misrecording a deed.1 Judge S. Dana

quotes an English case to support his point.

But the great point in the case is, that an agent
for the public is not liable to be sued upon
contracts made by him in that capacity.15

Judge Thacher, in finding for the clerk states

It appears by the record that the plaintiff in
error was acting as the agent of the public. The
law is settled that any person, acting in that
capacity . does not render himself personally
liable.

an officer appointed by the government . is not
liable to be sued . a sjrvant of the public is
not personally answerable. 4

In 1804, a Massachusetts court interpreted a state

statute erroneously and found a local municipality liable in

Lobdell v. Inhabitants of New Bedford.155 However, eight

years later, the same court corrected its earlier error and

found a local municipality not liable in an identical sit-
156
nation as the 'Lobdell' case and applying the same statute.

None of those cases cited above, nor any of those

encountered between the years 1776 and 1812 cited Russell as

a legal precedent for the maintaining of sovereign immunity



52Brown v. Austin 1 Mars 208 (1804).
3Supra note 152 at 213, Judge S. Dana quoting Macbeath
v. Holdmand 1 T Rep 172.
]54Id note 152 at 217, Judge Thocker.

551 Mass 153 (1804).

156Supra note 140.








in the United States. Indeed, in almost every instance, the

various justices felt that it was "settled law" or "common

law" that establishes the privilege of governmental immunity.

This indicates that our foundation of governmental

immunity was inherited from the English sovereign immunity

(as described by Blackstone157) through the colonies. The

Russell case connected to the United States through the

Mower v. Leicester precedent, happened 19 years after the

United States Supreme Court in Chisholm v. Georgia158

discussed the principle of sovereign immunity in terms of
159
inheritance and Blackstone9

Governmental immunity, then, as enjoyed by indivi-

dual states, was inherited (along with much of the rest of

the United States' legal system) when American state govern-

ments took over control from the English colonial governments

in 1776. The immunity which the English colonial governments

enjoyed was derived from English common law as described in

Blackstone's Commentaries.160

For the next 150 years, governmental immunity was

the rule when applied to states and their governments.

Occasional cases would reach the courts, but the results



157Supra note 9.

1Supra note 122.

Id note 9.
Id note 9.









were always the same--the state is immune from suits unless

it consents to be sued.

It is a familiar doctrine of the common law,
that the sovereign cannot be sued in his own courts
without his consent .. The exemption from direct
suit is, therefore, without exception.161
Every government has an inherent right to pro-
tect itself against suits . The principle is
fundamental (and) applies to every sovereign
power.


Abrogation of Immunity by the States

As discussed previously, the federal government

partially abrogated its immunity in 1855 with the establishment

of the Federal Court of Claims, and totally abrogated its

immunity in 1946 with the Federal Tort Claims Act of 1946.

The individual states, however, were much more reluctant to

do so. It was not until the 1950's, that serious challenges

began to arise against the governmental immunity doctrine.

These challenges appeared on the most obvious and

logical of fronts--the state courts and the state legislatures.

Challengers attempted to influence state legislatures or

convince state courts to abrogate the governmental immunity

enjoyed by the states.

It is appropriate at this point in the study to

elaborate on the abrogation issue momentarily. There are


161The Siren 74 U.S. (7 Wallace) 152 (1869) at 154.

162Nichols v. United States 74 U.S. (7 Wallace) 122
(1869) at 126.








two types of abrogation: There is total abrogation of

governmental immunity. This is where the state gives up all

of its privileges of immunity. It can be sued for any type

of liability, tort, contractual breach, et cetera. There is

also no limitation of damages which can be collected from

the state if a suit is successful.

On the other hand, there is partial abrogation of

governmental immunity where the state gives up only part of

its privileges of immunity. There are two elements of

partial immunity--categories of liability and limitations of

damages. In the categories of liability, the state may

abrogate only types of liabilities for particular kinds of

actions. For example, some states will permit only actions

.resulting from school bus accidents to be heard in state

courts. The other element of partial abrogation, limitations

of liability, is where a state will set a maximum amount for

which it can be sued. For example, a state may allow itself

to be sued, but not for more than a specified amount per

person per incident. This is an attempt by the state to

keep from paying out unusually large sums in damages and,

thereby, upsetting the fiscal balance of the state budget.

In many instances, states use a combination of

"categories of liability" and "limitations of damages" in

their partial abrogation of governmental immunity. The

Commonwealth of Virginia is an excellent example of this

type of abrogation. In this state, the only action for









which the state can be sued is school bus accidents. And

the suit cannot be for morc than $30,000.00 per person per

incident. In this manner, the state has reduced its liability

of both suits and damages through partial abrogation.

As mentioned previously, the two methods of

abrogating governmental immunity may be by act of the state

legislature or by court order.

In the late 1950's, state legislatures were hesitant

to abrogate even partial immunity for fear of causing a

flood of suits. Due to this reluctance, state courts took

the initiative and began to abrogate governmental immunity

in a series of "spectacular decisions abolishing governmental

immunity."163

The first of these was Hargrove v. Town of
Cocoa Beach (Fla. 1957) 96 So.2d 130. This was
followed, over a period of two years, by a trio
of rather spectacular decisions abolishing the
municipal immunity, in Molitor v. Kaneland
Community Unit Dist. No. 302 (1959) 18 I11.2d 11,
163 N.E. 2d 89; Williams v. City of Detroit (1961)
364 Mich. 231, 111 N.W.2d 1; and Muskopf v. Corning
Hospital District (1961, 5 Cal.2d 211, 11 Cal.
Rptr. 89, 359 P.2d 457.164

A notable case concerning abrogation of governmental

immunity was Hargrove v. Town of Cocoa Beach 65 In this

case, the Supreme Court of Florida decided that for:


163upra note 97 at 1124.

16Id note 97 at 1124.

16596 So. 2d 130 (1957).









an individual to suffer a grievous wrong
(rather) than to impo.:e liability on the people
vicariously through their government . is
a sham to our constitutional guarantee that the
courts shall always be open to redress wrongs.166

The court then reversed its previous decisions supporting

the governmental immunity concept because of the many incon-

gruities and inconsistencies in applying the immunity prin-

ciple.

The modern city is in substantial measure a
large business institution. While it enjoys
many of the basic powers of government, it nonethe-
less is an incorporated organization which exercises
those powers primarily for the benefit of the people
within the municipal limits who enjoy the services
rendered pursuant to the powers. To continue to
endow this type of organization with sovereign
divinity appears to us to predicate the law of
the Twentieth Century upon an Eighteenth Century
anachronism. Judicial consistency loses its
virtue when it is degraded by the vice of injustice.
We therefore now recede from our prior decisions
which hold that a municipal corporation is immune
from liability.167

Therefore, the Supreme Court of Florida led the

way towards abrogation of governmental immunity by abrogating

municipal immunity throughout the State of Florida in 1957.

In doing so, the court pointed out that the doctrine established

in Russell "had its inception . in 1788, some twelve

years after our Declaration of Independence" and pondered

why this new country would support and endorse such a doctrine.



166Supra note 165.
167Id note 165.









Quickly after the Ilarrove decision was made in

Florida, an even more historic case was decided in the State

of Illinois. Molitor v. K:ineland Community Unit District

No. 302 is of primary importance to this study for several
168
reasons. First, this decision abrogated governmental

immunity in the State of Illinois; and second, the decision

is an education case concerning a school bus accident. This

case is the link between the examination of the governmental

immunity concept, and its application to United States

education. In its decision, the Supreme Court of Illinois

states:

We do not believe that in this present day
and age, when public education constitutes one
of the biggest businesses in the country, that
school immunity can be justified on the protection-
of-public-funds theory.169

The court also found that while the school system

did possess limited insurance to cover liability in school

bus related accidents, "the question as to whether or not

the institution is insured in no way affects its liability."170

In fact, the court found a grave inconsistency in the entire

insurance issue.



18Supra note 3.
1691d note 3 at 96.

170Id note 3 at 93.









Thus, under this statute, a person injured by an
insured school district bus nay recover to the
extent of such insurance, whereas, under the Kinnare
doctrine, a person injured by an uninsured school
district bus can recover nothing at all.171

The Illinois Court also faced the Russell doctrine head on

and found that:

It should be noted that the Russell case
was later overruled by the English courts, and that
in 1890 it was definitely established that in Eng-
land a school board or school district is subject
to suit in tort for personal injuries on the same
basis as a private individual or corporation.
(Crisp v. Thomas, 63 LTNS 756 (1890).) Non-
imfmunity has continyu9 to be the law of England
to the present day.

Yet, in the United States, courts, justices, and

legislators have seized upon this acient, obscure case and

endorsed it (even) in modern times while ignoring the fact

that it was overruled in England in 1890.

Three years after the Molitor case, the Supreme

Court of Michigan was faced with a similar situation in

Williams v. City of Detroit.173 In this case, the court

endorsed the notion of governmental immunity in the present

case, yet "overruled the doctrine of governmental immunity

for future cases by a majority of the court."174


171Supra note 3 at 92.
172Id note 3 at 91.

173111 N.W. 2d 1 (1961).

174Supra note 173 at 1.









From this date forward the judicial doctrine
of governmental immunity from ordinary torts no
longer exists in Michigan.175

The court, in essence, was giving the Michigan legislature

notice that legislative abrogation of governmental immunity

would be preferable to judicial abrogation but the court

would do it if the legislature would not.

The practical situation presented is that
if the legislature deems it necessary so to do it
may act to modify, or even abrogate entirely, the
doctrine of governmental immunity. It is also
true that the people acting under the initiative
provisions of the State Constitution may accomplish
a like result by legislation or by Constitutional
amendment.176

The Michigan court ignored the English precedent and generally

directed its attentions to recent American case law. It did

not feel at all bound by the ancient maxim, "the king shall

do no wrong."

The third case of what Dean Prosser calls "a trio

of rather spectacular decisions" is Muskopf v. Corning

Hospital District.177 The Supreme Court of California in

its 1961 decisions found no justification for maintaining

the archaic concept and "held that the doctrine of govern-

mental immunity from tort liability is to be rejected as

mistaken and unjust."178


175
Supra note 173 at 2.

76Supra note 97 at 1124.
177359 P. 2d 457 (1961).

178 ra note 177 at 457.
Supra note 177 at 457.









The court felt that by abrogating governmental

immunity, it was not breaking with past precedent, but

rather concluding a wrongly established legislative and

judicial trend.

Only the vestigial remains of such governmental
immunity have survived; its requiem has long been
foreshadowed. For years the process of erosion of
governmental immunity has gone on unabated. The
Legislature has contributed mightily to that
erosion. The courts, by distinction and extension,
have removed much of the force of the rule. Thus,
in holding that the doctrine of governmental immunity
for torts for which its agents are liable has no
place in our law we make no startling break with the
past but merely take the final step that carries
to its conclusion an established legislative and
judicial trend.1

Due to the monumental implications of these three

precedent setting decisions, state legislatures began to

take rapid action.180 Many state legislatures, fearful of

court ordered total abrogation, immediately passed legislation

partially abrogating governmental immunity. In other states,

the courts seized upon the new precedents and began abrogation

(either partial or total) of governmental immunity. Some

state legislatures passed abrogation bills in response to

partial abrogation by their own state courts. In any event,

the Molitor, Williams, and Muskopf decisions opened the

flood gates for challenges to the governmental immunity



179Supra note 177 at 463.
180Supra note 97 at 1124.









issue. Since the late 19510's governmental immunity has been

in a fluid state, changing 'rom year to year compensating

for various community and judicial attitudes. The trend is

definitely towards abrogating of governmental immunity.

By 1971, the states of Alaska, Arizona, Arkansas,

California, the District of Columbia, Illinois, Indiana,

Kentucky, Louisiana, Michigan, Minnesota, Nebraska, Nevada,

New Jersey, and Wisconsin had their governmental immunity

abrogated by state court decisions.181 Many of these courts

expressed sentiments similar to those found in Molitor v.

Kaneland Community School District.182

It is revolting to have no better reasons
for a rule of law than that it was laid down in the
time of Henry IV. It is still more revolting if
the grounds upon which it was laid down have
vanished long since, and the rule simply persists
from blind imitation of the past.1 a

There are probably few tenets of American
jurisprudence which have been so unanimously berated
as the governmental immunity doctrine. This court,
and the highest courts of numerous other states
have been unusually articulate in castigating the
existing rule; test writers and law reviews have
joined the chorus of denunciators . The abroga-
tion of the doctrine applies to all public bodies
within the state . by reason of the rule of
respondant superior a public body shall be liable
for damages for the torts of its officers, agents,
and employees occurring in the courts of business
of such public body.


181
Supra note 97 at 1124.

1Supra note 3.

183Supreme Court of Minnesota, Spanel v. Mounds View
School District No. 621 188 N.W. 2d 795 (1962).

184Supreme Court of Wisconsin, Holytz v. City of
Milwaukee 155 N.W. 2d 618 (1962).









The rule of governmental immunity for tort is
an anachronism without rational basis, and has
existed only by the force of inertia. For years
the process of erosion of governmental immunity
has gone on unabated. The Legislature has
contributed mightily to that erosion. The courts,
by distinction and extension, have removed much of
the force of the rule. Thus, in holding that the
doctrine of governmental immunity for the torts for
which its agents are liable has no place in our
law we make no startling break with the past but
merely take the final step that carries to its
conclusion an established legislative and judicial
trend.185

Appendix 1 presents a table which illustrates the major

court decisions in states where courts have found the need

to abrogate governmental immunity. This table presents the

court decision and the appropriate governmental entity

affected (if any other than the state). Material found in

this table came from a nationwide survey conducted by this

researcher regarding state governmental immunity and from

the National Association of Attorneys General's January, 1975

report on Governmental Immunity.186 Over 30 states have

case law precedents limiting some aspect of governmental

immunity. In all of these states, the court decisions have

been since 1957. Fourteen of these states have had court

decisions since 1970. This appendix shows that a majority

of states have limited governmental immunity by court

decision in the last 20 years.


185California Supreme Court, Muskopf v. Corning
Hospital District, supra note 177.

186Supra note 94.









After this trend of court decisions ordering

abrogation, state legislatures immediately began passing

legislation concerned with governmental immunity.

Almost without exception, state legislatures
have responded quickly to state court decisions
regarding sovereign immunity. When an Arkansas
court abrogated the doctrine of sovereign immunity,
the legislature immediately reinstated the doctrine,
finding the vitality of the principle essential to
the fiscal integrity of the state.
A second group of states responded by limiting
their liability through tort claims acts, a number of
which were modeled after the Federal Tort Claims
Act. These acts have the effect of reinstating
immunity except where the act provides for liability.
Twenty states have tort claims acts. Although they
differ in a number of particulars, there are signi-
ficant similarities. For example, there is commonly
a requirement that all claims be presented to the
relevant state department or agency, which has a
specified period of time in which to review the
claim and either pay it or deny it. In some states,
as soon as the claim is denied by the department,
the claimant may seek redress in the courts. In
others, a special hearing or appeal board must have
reviewed and affirmed the denial of the claim before
the jurisdiction of a court may be invoked.
Each act has specific exceptions to liability.
These include: discretionary acts within the scope
of employment, intentional torts by employees,
false imprisonment, mlicious prosecution, and
invasion of privacy.187

Appendix 2 is a table which presents information about state

legislation concerning governmental immunity. This table

lists both the statutory provisions of each state and the

appropriate coverage. Like Appendix 1, the information

found in this table comes from this researcher's national

survey and the 1975 report on governmental immunity for The


187upra note 94 at 28.









National Association of Attorniy's General.8 Appendix 2

shows that a majority of states (48) have some provision for
189
handling tort suits against the state. These provisions

range from insurance coverage (5)190 to various tort claims

acts (18).191 Many states have statutory provisions requiring

the state's attorney general to represent various state

officers in tort suits. The appendix reveals that most

states deal with governmental immunity concerns through

statutory means rather than constitutional provisions. Only

Georgia and Montana use the state constitution to direct
192
tort claim procedures.1

Mississippi and Pennsylvania have no statutory or

constitutional provisions regarding the governmental immunity

issue. Eighteen states use some type of tort claims act in

their liability legislation while five states make provisions

for insurance coverage. Through statutory means, three



188Supra note 94.

189Some statutory provision which speaks directly to
the tort liability issue.

190Colorado, Delaware, New Hampshire, New Mexico,
and Wyoming.

191Georgia, Idaho, Illinois, Indiana, Iowa, Kentucky,
Missouri, Montana, Nebraska, Nevada, New Jersey, New York,
North Carolina, Ohio, Oregon, South Carolina, Tennessee,
and Texas.
192GEORGIA CONSTITUTION, ARTICLE VI; and MONTANA
CONSTITUTION, ARTICLE II.








193
states uphold the principle of sovereign immunity93 while
194
six states substantially abrog:ate it.1

The information compiled in Appendix 3 was gathered

primarily from this researcher's nationwide survey. Letters

were sent to each attorney general of each state asking for

that official to outline the status of governmental immunity

in his/her state. Appendix 3 provides a composite presentation

of the most recent information regarding the status of

governmental immunity. Letters from states' attorneys

general cite both courts decisions and statutes in determining

the extent to which governmental immunity operates.

The survey reveals that most states (35) have some
195
form of partial abrogation of governmental immunity.

The extent of this immunity varies from limitations of

damages to limitations of categories of liability. Fourteen

states have totally abrogated their immunity96 while eight
197
states still claim full governmental immunity.1



193Arkansas, Minnesota, Oklahoma.

194Florida, Illinois, Maryland, Montana, Rhode Island,
and Vermont.

195See Appendix 1.

196Alaska, Arizona, California, Delaware, Florida,
Hawaii, Illinois, Louisiana, Mayyland, Michigan, Montana,
New Jersey, Vermont, and Washington (state).

197Connecticut, Georgia, Kansas, Mississippi, Missouri,
North Carolina, Pennsylvanis, and Virginia.









Michigan's attorney general responded that he was

unable to ascertain the status of governmental immunity in

his state.198 Responses from the attorneys general indicate

that many states are actually engaged in statutory or court

examination of the governmental immunity principle. This

continued interest indicates that the immunity issue is

fluid and changes as the needs of the states fluctuate.


198Letter from Louis A. Riyoli dated December 16, 1976.









Srina iiry

Sovereign immunity was transmitted to both the

state and federal governments by two paths: first, the

principle was inherited by the state (and federal) governments

when they took over the functions of the English colonial

government. And second, the concept of governmental immunity

was formalized by the courts (especially the United States

Supreme Court's) reliance on Blackstone's Commentaries on

the Laws of England199 as a common law principle.

The federal government partially abrogated some of

its immunity in 1855 with the establishment of the Federal

Court of Claims. In 1946, with passage of the Federal Tort

Claims Act of 1946, the federal government totally abrogated

its governmental immunity.

Prior to 1798, the individual states were only

immune from suits from their own citizens. They could be

sued in federal court by citizens of other states. In 1798,

however, the Eleventh Amendment to the United States Consti-

tution was ratified and, thereby, gave individual states

total governmental immunity. This total immunity continued

until the late 1950's and early 1960's where a rash of

spectacular court decisions abrogated many state's govern-

mental immunity. State legislators quickly responded by

passing legislation abrogating (either partially or totally)

governmental immunity by state statute rather than allowing


199Supra note 9.
Supra note 9.








state courts to determine the extent of abrogation. Since

then, state governmental i inmii ty has been changing year by

year to accommodate the attitudes of both, the public and

the judiciary. The trend is towards abrogation of govern-

mental immunity as Appendices 1, 2, and 3 substantiate.














CHAPTER 4

IMPLICATIONS OF THE GOVERNMENTAL
IMMUNITY PRINCIPLE TO EDUCATION
IN THE UNITED STATES


Since the late 1950's, many local and state

educational systems have become involved in the abrogation

of governmental immunity controversy. Education interests

are an important aspect of this controversy because in all

50 states, plus the District of Columbia, education is
200
specified as being an official state function. Education

has not been viewed by courts as a proprietary function, but

rather as a governmental function.201 Therefore, education

is a legitimate and bonafied state interest with official

state status in all 50 states.

Prior to the late 1950's, most states in the

United States enjoyed the prerogative of governmental immunity.

This immunity which the states enjoyed was also extended to

the various agencies and departments which perform govern-

mental functions. Education, being one of these agencies or

departments, also possessed governmental immunity from

liability.


200A. H. LEVINE, E. CAREY, AND D. DIVOKY, THE RIGHTS OF
STUDENTS 15 (1973).
201160 ALR 38
160 A.L.R. 38.









The abrogation movement began to substantially

alter this immunity status in the late 1950's. The most

notable case involving education being Molitor v. Kaneland

which was adjudicated by the Supreme Court of Illinois in
202
1959.202 This case was the first of what Dean Prosser

called "a trio of rather spectacular decisions" following

the important Florida decision in Hargrove v. Town of Cocoa
203
Beach. Therefore, it is important to realize that educa-

tional tort liability cases are frequently at the spearhead

of the abrogation of immunity movement.

The reasons for this situation probably arise

because of the nature of the educational process. Education,

by its very nature, is much more susceptible to tortious

acts than most other state agencies or departments are.

Because of this, there is a great deal more legal activity

concerning liability in the education field, than in other

governmental function fields.


Early Case Law

The earliest known case involving court abrogation

of sovereign immunity in an education case occurred in 1890

in England (Crisp v. Thomas).204 This landmark decision



202Supra note 3.

203Supra note 100.

204Supra note 80.









established the liability of education for acts of negli-

gence in torts. It should be noted that this case overruled

the immunity doctrine which was established over a hundred

years earlier in England. That same year, the English

Parliament partially abrogated that nation's sovereign

immunity as a result of this decision involving an education

case. Therefore, in England, the doctrine of sovereign

immunity was judicially abrogated in an education case

(Crisp v. Thomas). This decision places education at the

spearhead of the abrogation movement in England.

In the United States, however, the judicial

attitudes towards both, abrogation of immunity and educa-

tional tort liability cases, remained consistent. Court

after court in the Nineteenth Century ruled that the doctrine

of governmental immunity prevented the state (and schools)

from being sued.20 Everyone of these early education

decisions reflected the continuance of the governmental

immunity from liability, even in cases of gross negligence.

(T)he rule of immunity has been applied or
recognized where the negligence was that of a
school district itself, or of a school board, as
well as where the negligence was that of officers,



205Grander v. Pulaski County 26 Ark. 37 (1870 Arkan-
sas), Elmore v. Drainage Commissioners 135 Ill. 269 (1890 -
Illinois), Kinnare v. Chicago 171 Ill. 332, 49 N.E. 536
(1898 Illinois), Frecl v. Crawfordsville 142 Ind. 27,
41 N.E. 312, 37 L-A 301 (1895 Indiana), Kincaid v. Hardin
County 53 Iowa 430 (1880 Iowa), McKenna v. Kimball 145
Mass. 555, 14 N.E. 789 (1888 Massachusetts), Ferris v.
Board of Education 122 Mich 315, 81 N.W. 98 (1899 Michigan),
Bank v. Brainerd School District 49 Minn. 106, 51 N.W. 814
(1892 Minnesota), Finch v. Board of Education 30 Ohio St
37 (1896 Ohio), Ford v. Kendall School District 121 Pa.
543, 15 A. 812 (1888 Pennsylvania).









such as the trustees or( directors of a school
district, or the negligence of agents or employees.
And the rule of ininunility is applicable for
negligence committee in connection with duties or
functions which are merely optional or permissive,
as well as in connection with those mandatory in
character.
The rule of nonliability for negligence has
been applied or recognized to preclude recovery
against school districts, school boards, or similar
school agencies for the personal injuries, illness,
or death of pupils attending public schools, as
well as of other persons, such as teachers, school
janitors or janitresses, employee in a school cafe-
teria, workmen or laborers, persons, other than
servants or employees, on school premises for
business reasons, such as one making a survey of
certain needed repairs to a school building, and
an employee of one under contract to remove ashes
from school premises, boy scouts, members of the
general public invited upon school premises to
attend school or other functions upon payment of
admission price, speakers or other guests at school
or other functions held on school premises for
which no admission price was charged, and members
of the general public on school premises or elsewhere,
such as on public sidewalks, streets, or highways.
And the rule of tort immunity for negligence
has been applied or recognized with respect to
injuries or damage to private property, as well as in
connection with loss caused by unreasonable delay
in disposing of condemnation proceedings.
With respect to liability for personal injuries
or death caused by a wrong other than negligence,
judicial statements have been made, for the most part
in cases involving negligence, to the effect that
the general rule of tort nonliability applies
irrespective of the nature of the wrong causing
such injuries or death.206

Therefore, prior to the 1950's, there seemed to be

almost no action which an education agency, department,

board, official, or employee could perform which would cause

agency liability damages.


206160 A.L.R. 42-48.









Court Ordered Abrogation
in Educationt Cases

As stated previously, the Molitor decision changed

the steadfast principle of governmental immunity. Mr. Justice

Klingbiel, in his 1959 Supreme Court of Illinois decision,

found no solid basis for the governmental immunity principle.

This ground breaking decision abrogating govern-

mental immunity was an education case. Like Crisp v. Thomas

in England,207 Molitor v. Kaneland is at the spearhead of

the abrogation of governmental immunity movement in the

United States. This means that educational systems can no

longer rely on the protection of governmental immunity since

education cases are the precedent-breaking decisions.

Education cases are setting the new trend in this field.


Application to Education:
Political and Fiscal

This section is intended to present a series of

political and fiscal alternatives that various states are

using or are attempting to use in order to deal with the

governmental immunity controversy.

In the states where governmental immunity has been

totally abrogated, education (both local and state agencies)

is liable for damages of tortious acts. School districts in

these states frequently purchase liability insurance for


207
S7upra note 80.









fiscal protection. State courts of claims frequently hear

tort cases and thereby offo.r some control of the situation.

In the states where governmental immunity has been

partially abrogated, education is liable for the categories

of claims and the extent of damages allowed in the partial

abrogation. Local school districts in these states have the

appearance of limited protection since they can only be sued

in particular circumstances. For these circumstances, most

states allow or require their school districts to purchase

liability insurance. However, the fact that partial abrogation

has occurred in no way prohibits a state court from totally

abrogating the state's (or agency's) governmental immunity.

In the states where governmental immunity is still

in effect and is enjoyed by all state agencies, education is

protected from liability suits. In some of these states,

however, local school districts still purchase liability

insurance for additional protection in high risk situations

such as school bus use, field trips, shop classes, et cetera.

It should be pointed out that state courts can, at any time,

abrogate this immunity either in total or partially. And

since education cases have the tendency to spearhead this

abrogation movement, school districts could, at any time,

lose their immunity from liability.

The fiscal implications of abrogation of govern-

mental immunity are numerous and far reaching. In situations

where school systems have suddenly lost their immunity by


__









court abrogation, the damages must be paid out of the system's

current operating budget. Obviously, this situation is

undesirable since the budget, then, must be reduced and

funding of the educational program endangered. To compensate

for situations such as this, school systems often use state

appropriated funds to purchase liability insurance. This

has become a common practice for many school systems through-

out the United States. However, some courts have found this

practice to be unwise and inappropriate.

If tax funds can properly be spent to pay
premiums on liability insurance, there seems to be
no good reason why they cannot be spent to pay the
liability itself.

While the Molitor decision adds some insight into

the problems of purchasing liability insurance, other

problems exist in its solution.

It would be impossible for local school districts

to predict exactly how much damages (if any) they would be

paying out in the next fiscal year. It is quite conceivable

that the damages may exceed the allotment and consequently

create a categorical deficit. If, on the other hand, a

school system did not use all the funds appropriated for

damage claims, "carrying-over" these funds until the next

year might not be possible. Many states have laws prohibit-

ing or limiting "carry-over" accounts. Therefore, the "pay-

as-damages-come-in" philosophy is often neither practical or

legal.


208Supra note 9.









The "savings-account" idea also possesses the same

inherent problems as the "carry-over" accounts, so this

option is not viable either.

Some states have, through legislative action,

created a state court of claims. Often, these courts of

claims are fashioned after the federal Court of Claims. In

these instances, the court adjudicates the tort claims and,

thereby, is able to exercise some amount of control over the

type of claims and the extent of damages. However, school

districts cannot count on help from these courts.

The purchasing of liability insurance, super-

ficially, at least, seems to be the only practical solution

to the fiscal dilemma and is, by far, the most common.

Political alternatives offer some possibility of

relief. States that do not have courts of claim might be

prodded into legislating such courts. States that do not

require insurance, might be wise to consider mandating that

such insurance be possessed by each local school division.

Another alternative is for the creation of a state-wide tort

claims account from which damages caused by any state agency

could be paid out of.

In any event, solutions to the governmental

immunity controversy will have to be effective, efficient,

and fair.










Summary

The implications oF the abrogation of governmental

immunity movement are substantial. More and more school

districts and agencies are finding themselves liable for

damages incurred by tortious acts. This increase in liability

is directly attributable to the increase in the abrogation

of governmental immunity either by court or legislative

action. The school district can no longer rely on the,

heretofore, steadfast rule of governmental immunity.

Avoiding liability suits is particularly difficult

since the very nature of the educational process exposes it

to more than its share of tortious risks.

Fiscal and political alternatives offer limited

relief at present, but creative and imaginative administration

may open up many new avenues of protection.














CHAPTER 5

CONCLUSION


This study has had three major purposes. It has

attempted to demonstrate the following:

(1) The origination and the development of the

sovereign immunity concept into the English legal system,

(2) The transmission or migration of this concept

into the United States' legal system, and

(3) The evolution of the concept of governmental

immunity in the United States, and the application of this

concept to education in the United States.


Origination

It has been shown that the origin of the concept

of sovereign immunity had two evolutionary paths. First,

the canon law system developed a type of sovereign immunity

for its higher level clergy. And second, the feudal system

also developed the concept that the lord who made the laws

could not be sued under those same laws. These two paths

were merged into the early English legal system where the

doctrine of sovereign immunity became formalized in case law

during the reign of King Henry II.










Developmei-fL in Ein land

The doctrine of sovcreign immunity continued to

develop in case law until the reign of King Henry VIII in

1532 when, as a result of his marital difficulties with the

Bishop of Rome, he had the royal prerogative established

into statutory law. By doing so, he legitimized his immunity--

even from Rome.

The English law historian Blackstone helped to

incorporate this principle into the established legal system
209
in his Commentaries on the Laws of England0 where he

justified the concept of sovereign immunity became "the king
210
can do no wrong.210 Blackstone's reputation as a great

legal scholar helped to further this principle in the newly

formed United States.


Transmission of the Principle

When the states assumed the responsibility of

governmental functions from the earlier colonial governments

in 1776, they inherited the prerogative as part of their

legal heritage. The endorsement and acceptance of such a

medieval concept into the new democratic government defies

all rational explanations. It was the same prerogative of

sovereignty that the Revolutionary War was fought to abolish.211


209
20Supra note 9.
210Id note 9.

Supra note 3 at 95.









Shortly after the federal Constitution was ratified

in 1788, the United States Supreme Court ruled on an immunity

case in Chisholm v..Georgii.212 While finding the state

liable for suit in a federal court, the Supreme Court endorsed

the concept of sovereign immunity as applied against a

state's own residents. The court's rationale for this

endorsement of immunity was the famous Blackstone's Commen-

taries.213 No mention of an obscure English case (Russell v.

Men of Devon21) was made. This, therefore, established a

case law principle which was apparently founded on Blackstone's

Commentaries.


Evolution in the United States

Shortly after the Chisholm decision, the Eleventh

Amendment to the United States Constitution was ratified.

This amendment guaranteed absolute governmental immunity to

the United States.

The federal government partially abrogated its

immunity in 1855 with the establishment of a federal court

of claims. Ninety-one years later (56 years after England

abolished its sovereign immunity) the Federal Tort Claims

Act of 1946 totally abrogated the federal government's

immunity from liability. The states, however, were still



212Supra note 107.

213Supra note 9.
214Supra note 133.
Supra note 133.










clinging to their immunity using the Russell doctrine as the

justification even though this doctrine (which was established

in England in 1788) was overruled in England in 1890.

It was not until the late 1950's when "a trio of

rather spectacular decisions" by state courts began the
215
abrogation movement.215 The first case of this "trio" was

an education case where the doctrine of sovereign immunity

was abolished. Within ten years time of these decisions,

over 15 states had abrogated Cat least partially) their
216
governmental immunity. The data presented in Appendices

1, 2, and 3 details the current status of governmental

immunity in the United States.

The trend in this movement is clear. State legis-

latures are gradually abrogating the states' governmental

immunity. This abrogation movement is frequently in response

to court decisions where legislative abrogation is either

required or totally circumvented.

The usual mode of abrogation is partial liability

with a limitation of the tort categories as well as a limita-

tion of the damages. Frequently, a state court of claims,

patterned after the federal court of claims, is established

to hear such actions.



25Supra note 97 at 1124.

216Alaska, Arizona, Arkansas, California, District
of Columbia, Illinois, Indiana, Kentucky, Louisiana,
Michigan, Minnesota, Nebraska, Nevada, New Jersey, and
Wisconsin.









The study conducted by this researcher found only

eight states which are attempting to maintain full govern-

mental immunity. On the other hand, only 16 states have

total abrogation of their governmental immunity. The rest

of the states have some form of partial abrogation of

governmental immunity in effect. Data found in Appendices

1, 2, and 3 give specific details on a state-by-state

basis.


Application of the Governmental
Immunity Principle to Education

As stated in Chapter 4, the implications of the

movement of the governmental immunity principle are great

and far reaching.

Before the abrogation movement began, educational

agencies and local school districts enjoyed the privilege of

governmental immunity. But education soon found itself at

the forefront of the abrogation movement. Some courts,

which abrogated school district immunity, indicated that the

presence or lack of insurance was a moot factor in their
217
decision. In other states, the purchasing of school

liability insurance was interpreted by the courts as consent

to be sued.

This places local school districts in quite a

dilemiia. On one hand, they cannot be certain that the


217 ra note 3 at 93.
Snora note 3 at 93.




Full Text
xml version 1.0 encoding UTF-8 standalone no
fcla fda yes
dl
!-- Governmental immunity ( Book ) --
METS:mets OBJID UF00098093_00001
xmlns:METS http:www.loc.govMETS
xmlns:mods http:www.loc.govmodsv3
xmlns:xlink http:www.w3.org1999xlink
xmlns:xsi http:www.w3.org2001XMLSchema-instance
xmlns:daitss http:www.fcla.edudlsmddaitss
xmlns:sobekcm http:digital.uflib.ufl.edumetadatasobekcm
xsi:schemaLocation
http:www.loc.govstandardsmetsmets.xsd
http:www.loc.govmodsv3mods-3-3.xsd
http:www.fcla.edudlsmddaitssdaitss.xsd
http:digital.uflib.ufl.edumetadatasobekcmsobekcm.xsd
METS:metsHdr CREATEDATE 2010-09-20T08:48:32Z ID LASTMODDATE 2010-02-11T00:00:00Z RECORDSTATUS NEW
METS:agent ROLE CREATOR TYPE ORGANIZATION
METS:name UF
METS:note server=TC
projects=
OTHERTYPE SOFTWARE OTHER
Go UFDC - FDA Preparation Tool
INDIVIDUAL
UFAD\mariner1
METS:dmdSec DMD1
METS:mdWrap MDTYPE MODS MIMETYPE textxml LABEL Metadata
METS:xmlData
mods:mods
mods:genre authority marcgt bibliography
non-fiction
mods:identifier type AlephBibNum 000206968
OCLC 04054716
NOTIS AAX3762
mods:language
mods:languageTerm text English
code iso639-2b eng
mods:location
mods:physicalLocation University of Florida
UF
mods:name personal
mods:namePart Connors, Eugene Thomas
given Eugene Thomas
family Connors
date 1949-
mods:role
mods:roleTerm Main Entity
mods:note thesis Thesis--University of Florida.
bibliography Bibliography: leaves 133-137.
statement of responsibility by Eugene T. Connors.
Typescript.
Vita.
mods:originInfo
mods:place
mods:placeTerm marccountry flu
mods:dateIssued marc 1977
point start 1977
mods:copyrightDate 1977
mods:recordInfo
mods:recordIdentifier source ufdc UF00098093_00001
mods:recordCreationDate 780714
mods:recordOrigin Imported from (ALEPH)000206968
mods:recordContentSource University of Florida
marcorg fug
FUG
mods:languageOfCataloging
English
eng
mods:relatedItem original
mods:physicalDescription
mods:extent viii, 139 leaves : ; 28 cm.
mods:subject SUBJ650_1 lcsh
mods:topic Government liability
History
SUBJ650_2
Government liability
History
mods:geographic United States
SUBJ650_3
Liability for school accidents
United States
SUBJ650_4
Tort liability of school districts
United States
SUBJ690_1
Educational Administration and Supervision thesis Ph. D
SUBJ690_2
Dissertations, Academic
Educational Administration and Supervision
UF
mods:titleInfo
mods:title Governmental immunity
mods:subTitle legal basis and implications for public education
mods:typeOfResource text
DMD2
OTHERMDTYPE SobekCM Custom
sobekcm:procParam
sobekcm:Collection.Primary UFIR
sobekcm:Collection.Alternate VENDORIA
sobekcm:SubCollection UFETD
sobekcm:MainThumbnail governmentalimmu00conn_Page_001thm.jpg
sobekcm:Download
sobekcm:fptr FILEID UR2
sobekcm:EncodingLevel I
sobekcm:bibDesc
sobekcm:BibID UF00098093
sobekcm:VID 00001
sobekcm:Source
sobekcm:statement UF University of Florida
sobekcm:Type Book
sobekcm:SortDate -1
METS:amdSec
METS:digiprovMD AMD_DAITSS
DAITSS
daitss:daitss
daitss:AGREEMENT_INFO ACCOUNT PROJECT UFDC
METS:fileSec
METS:fileGrp USE reference
METS:file GROUPID G1 J1 imagejpeg SIZE 122941
METS:FLocat LOCTYPE OTHERLOCTYPE SYSTEM xlink:href governmentalimmu00conn_Page_001.jpg
G2 J2 96420
governmentalimmu00conn_Page_002.jpg
G3 J3 161463
governmentalimmu00conn_Page_003.jpg
G4 J4 200334
governmentalimmu00conn_Page_004.jpg
G5 J5 219544
governmentalimmu00conn_Page_005.jpg
G6 J6 225412
governmentalimmu00conn_Page_006.jpg
G7 J7 221262
governmentalimmu00conn_Page_007.jpg
G8 J8 249605
governmentalimmu00conn_Page_008.jpg
G9 J9 230253
governmentalimmu00conn_Page_009.jpg
G10 J10 246316
governmentalimmu00conn_Page_010.jpg
G11 J11 229200
governmentalimmu00conn_Page_011.jpg
G12 J12 249231
governmentalimmu00conn_Page_012.jpg
G13 J13 218106
governmentalimmu00conn_Page_013.jpg
G14 J14 215768
governmentalimmu00conn_Page_014.jpg
G15 J15 244399
governmentalimmu00conn_Page_015.jpg
G16 J16 243154
governmentalimmu00conn_Page_016.jpg
G17 J17 96680
governmentalimmu00conn_Page_017.jpg
G18 J18 213987
governmentalimmu00conn_Page_018.jpg
G19 J19 248691
governmentalimmu00conn_Page_019.jpg
G20 J20 283843
governmentalimmu00conn_Page_020.jpg
G21 J21 219679
governmentalimmu00conn_Page_021.jpg
G22 J22 246774
governmentalimmu00conn_Page_022.jpg
G23 J23 252971
governmentalimmu00conn_Page_023.jpg
G24 J24 290412
governmentalimmu00conn_Page_024.jpg
G25 J25 352936
governmentalimmu00conn_Page_025.jpg
G26 J26 278952
governmentalimmu00conn_Page_026.jpg
G27 J27 263334
governmentalimmu00conn_Page_027.jpg
G28 J28 259596
governmentalimmu00conn_Page_028.jpg
G29 J29 309796
governmentalimmu00conn_Page_029.jpg
G30 J30 232181
governmentalimmu00conn_Page_030.jpg
G31 J31 270436
governmentalimmu00conn_Page_031.jpg
G32 J32 257835
governmentalimmu00conn_Page_032.jpg
G33 J33 268670
governmentalimmu00conn_Page_033.jpg
G34 J34 344880
governmentalimmu00conn_Page_034.jpg
G35 J35 283107
governmentalimmu00conn_Page_035.jpg
G36 J36 291072
governmentalimmu00conn_Page_036.jpg
G37 J37 321681
governmentalimmu00conn_Page_037.jpg
G38 J38 357804
governmentalimmu00conn_Page_038.jpg
G39 J39 268719
governmentalimmu00conn_Page_039.jpg
G40 J40 264067
governmentalimmu00conn_Page_040.jpg
G41 J41 238181
governmentalimmu00conn_Page_041.jpg
G42 J42 286457
governmentalimmu00conn_Page_042.jpg
G43 J43 285616
governmentalimmu00conn_Page_043.jpg
G44 J44 295644
governmentalimmu00conn_Page_044.jpg
G45 J45 140071
governmentalimmu00conn_Page_045.jpg
G46 J46 266047
governmentalimmu00conn_Page_046.jpg
G47 J47 97373
governmentalimmu00conn_Page_047.jpg
G48 J48 240532
governmentalimmu00conn_Page_048.jpg
G49 J49 275451
governmentalimmu00conn_Page_049.jpg
G50 J50 308353
governmentalimmu00conn_Page_050.jpg
G51 J51 288831
governmentalimmu00conn_Page_051.jpg
G52 J52 363455
governmentalimmu00conn_Page_052.jpg
G53 J53 303486
governmentalimmu00conn_Page_053.jpg
G54 J54 313716
governmentalimmu00conn_Page_054.jpg
G55 J55 328599
governmentalimmu00conn_Page_055.jpg
G56 J56 279260
governmentalimmu00conn_Page_056.jpg
G57 J57 288376
governmentalimmu00conn_Page_057.jpg
G58 J58 256167
governmentalimmu00conn_Page_058.jpg
G59 J59 265766
governmentalimmu00conn_Page_059.jpg
G60 J60 290995
governmentalimmu00conn_Page_060.jpg
G61 J61 330178
governmentalimmu00conn_Page_061.jpg
G62 J62 327479
governmentalimmu00conn_Page_062.jpg
G63 J63 277428
governmentalimmu00conn_Page_063.jpg
G64 J64 253305
governmentalimmu00conn_Page_064.jpg
G65 J65 263459
governmentalimmu00conn_Page_065.jpg
G66 J66 282986
governmentalimmu00conn_Page_066.jpg
G67 J67 255809
governmentalimmu00conn_Page_067.jpg
G68 J68 274241
governmentalimmu00conn_Page_068.jpg
G69 J69 269179
governmentalimmu00conn_Page_069.jpg
G70 J70 244398
governmentalimmu00conn_Page_070.jpg
G71 J71 263429
governmentalimmu00conn_Page_071.jpg
G72 J72 280016
governmentalimmu00conn_Page_072.jpg
G73 J73 257845
governmentalimmu00conn_Page_073.jpg
G74 J74 290908
governmentalimmu00conn_Page_074.jpg
G75 J75 237512
governmentalimmu00conn_Page_075.jpg
G76 J76 263674
governmentalimmu00conn_Page_076.jpg
G77 J77 264416
governmentalimmu00conn_Page_077.jpg
G78 J78 280153
governmentalimmu00conn_Page_078.jpg
G79 J79 312882
governmentalimmu00conn_Page_079.jpg
G80 J80 292200
governmentalimmu00conn_Page_080.jpg
G81 J81 338838
governmentalimmu00conn_Page_081.jpg
G82 J82 259037
governmentalimmu00conn_Page_082.jpg
G83 J83 260056
governmentalimmu00conn_Page_083.jpg
G84 J84 122618
governmentalimmu00conn_Page_084.jpg
G85 J85 265984
governmentalimmu00conn_Page_085.jpg
G86 J86 96674
governmentalimmu00conn_Page_086.jpg
G87 J87 224769
governmentalimmu00conn_Page_087.jpg
G88 J88 236737
governmentalimmu00conn_Page_088.jpg
G89 J89 335005
governmentalimmu00conn_Page_089.jpg
G90 J90 355523
governmentalimmu00conn_Page_090.jpg
G91 J91 247338
governmentalimmu00conn_Page_091.jpg
G92 J92 286552
governmentalimmu00conn_Page_092.jpg
G93 J93 273985
governmentalimmu00conn_Page_093.jpg
G94 J94 238601
governmentalimmu00conn_Page_094.jpg
G95 J95 171688
governmentalimmu00conn_Page_095.jpg
G96 J96 203403
governmentalimmu00conn_Page_096.jpg
G97 J97 238345
governmentalimmu00conn_Page_097.jpg
G98 J98 246111
governmentalimmu00conn_Page_098.jpg
G99 J99 269326
governmentalimmu00conn_Page_099.jpg
G100 J100 238492
governmentalimmu00conn_Page_100.jpg
G101 J101 263596
governmentalimmu00conn_Page_101.jpg
G102 J102 140385
governmentalimmu00conn_Page_102.jpg
G103 J103 238069
governmentalimmu00conn_Page_103.jpg
G104 J104 230788
governmentalimmu00conn_Page_104.jpg
G105 J105 248537
governmentalimmu00conn_Page_105.jpg
G106 J106 204755
governmentalimmu00conn_Page_106.jpg
G107 J107 238024
governmentalimmu00conn_Page_107.jpg
G108 J108 194511
governmentalimmu00conn_Page_108.jpg
G109 J109 234723
governmentalimmu00conn_Page_109.jpg
G110 J110 224617
governmentalimmu00conn_Page_110.jpg
G111 J111 218638
governmentalimmu00conn_Page_111.jpg
G112 J112 266218
governmentalimmu00conn_Page_112.jpg
G113 J113 231574
governmentalimmu00conn_Page_113.jpg
G114 J114 377389
governmentalimmu00conn_Page_114.jpg
G115 J115 292022
governmentalimmu00conn_Page_115.jpg
G116 J116 303959
governmentalimmu00conn_Page_116.jpg
G117 J117 376790
governmentalimmu00conn_Page_117.jpg
G118 J118 265442
governmentalimmu00conn_Page_118.jpg
G119 J119 286367
governmentalimmu00conn_Page_119.jpg
G120 J120 330457
governmentalimmu00conn_Page_120.jpg
G121 J121 276962
governmentalimmu00conn_Page_121.jpg
G122 J122 308914
governmentalimmu00conn_Page_122.jpg
G123 J123 241722
governmentalimmu00conn_Page_123.jpg
G124 J124 241282
governmentalimmu00conn_Page_124.jpg
G125 J125 364198
governmentalimmu00conn_Page_125.jpg
G126 J126 284318
governmentalimmu00conn_Page_126.jpg
G127 J127 296463
governmentalimmu00conn_Page_127.jpg
G128 J128 303885
governmentalimmu00conn_Page_128.jpg
G129 J129 407259
governmentalimmu00conn_Page_129.jpg
G130 J130 330311
governmentalimmu00conn_Page_130.jpg
G131 J131 332760
governmentalimmu00conn_Page_131.jpg
G132 J132 284441
governmentalimmu00conn_Page_132.jpg
G133 J133 340548
governmentalimmu00conn_Page_133.jpg
G134 J134 252102
governmentalimmu00conn_Page_134.jpg
G135 J135 353143
governmentalimmu00conn_Page_135.jpg
G136 J136 325717
governmentalimmu00conn_Page_136.jpg
G137 J137 361288
governmentalimmu00conn_Page_137.jpg
G138 J138 338686
governmentalimmu00conn_Page_138.jpg
G139 J139 240109
governmentalimmu00conn_Page_139.jpg
G140 J140 157002
governmentalimmu00conn_Page_140.jpg
G141 J141 230972
governmentalimmu00conn_Page_141.jpg
G142 J142 225219
governmentalimmu00conn_Page_142.jpg
G143 J143 227587
governmentalimmu00conn_Page_143.jpg
G144 J144 205458
governmentalimmu00conn_Page_144.jpg
G145 J145 65212
governmentalimmu00conn_Page_145.jpg
G146 J146 252148
governmentalimmu00conn_Page_146.jpg
G147 J147 137860
governmentalimmu00conn_Page_147.jpg
G148 J148 224974
governmentalimmu00conn_Page_148.jpg
G149 J149 71086
governmentalimmu00conn_Page_149.jpg
G150 J150 31484
governmentalimmu00conn_Page_150.jpg
E1 imagejp2 262146
governmentalimmu00conn_Page_001.jp2
E2 169222
governmentalimmu00conn_Page_002.jp2
E3 476190
governmentalimmu00conn_Page_003.jp2
E4 543410
governmentalimmu00conn_Page_004.jp2
E5 547428
governmentalimmu00conn_Page_005.jp2
E6 546222
governmentalimmu00conn_Page_006.jp2
E7 546213
governmentalimmu00conn_Page_007.jp2
E8 546195
governmentalimmu00conn_Page_008.jp2
E9 546209
governmentalimmu00conn_Page_009.jp2
E10 546171
governmentalimmu00conn_Page_010.jp2
E11 546218
governmentalimmu00conn_Page_011.jp2
E12 545874
governmentalimmu00conn_Page_012.jp2
E13 545859
governmentalimmu00conn_Page_013.jp2
E14 544675
governmentalimmu00conn_Page_014.jp2
E15 544988
governmentalimmu00conn_Page_015.jp2
E16 544983
governmentalimmu00conn_Page_016.jp2
E17 228980
governmentalimmu00conn_Page_017.jp2
E18 543770
governmentalimmu00conn_Page_018.jp2
E19 543779
governmentalimmu00conn_Page_019.jp2
E20 543426
governmentalimmu00conn_Page_020.jp2
E21 543389
governmentalimmu00conn_Page_021.jp2
E22 543404
governmentalimmu00conn_Page_022.jp2
E23 543456
governmentalimmu00conn_Page_023.jp2
E24 541926
governmentalimmu00conn_Page_024.jp2
E25 541886
governmentalimmu00conn_Page_025.jp2
E26 541921
governmentalimmu00conn_Page_026.jp2
E27 541929
governmentalimmu00conn_Page_027.jp2
E28 541027
governmentalimmu00conn_Page_028.jp2
E29 541912
governmentalimmu00conn_Page_029.jp2
E30 541040
governmentalimmu00conn_Page_030.jp2
E31 541004
governmentalimmu00conn_Page_031.jp2
E32 540706
governmentalimmu00conn_Page_032.jp2
E33 540694
governmentalimmu00conn_Page_033.jp2
E34 540497
governmentalimmu00conn_Page_034.jp2
E35 539721
governmentalimmu00conn_Page_035.jp2
E36 540707
governmentalimmu00conn_Page_036.jp2
E37 540700
governmentalimmu00conn_Page_037.jp2
E38 540702
governmentalimmu00conn_Page_038.jp2
E39 540708
governmentalimmu00conn_Page_039.jp2
E40 540705
governmentalimmu00conn_Page_040.jp2
E41 540685
governmentalimmu00conn_Page_041.jp2
E42 541572
governmentalimmu00conn_Page_042.jp2
E43 539799
governmentalimmu00conn_Page_043.jp2
E44 542474
governmentalimmu00conn_Page_044.jp2
E45 375538
governmentalimmu00conn_Page_045.jp2
E46 539413
governmentalimmu00conn_Page_046.jp2
E47 228001
governmentalimmu00conn_Page_047.jp2
E48 539466
governmentalimmu00conn_Page_048.jp2
E49 540364
governmentalimmu00conn_Page_049.jp2
E50
governmentalimmu00conn_Page_050.jp2
E51 539482
governmentalimmu00conn_Page_051.jp2
E52 540282
governmentalimmu00conn_Page_052.jp2
E53 539486
governmentalimmu00conn_Page_053.jp2
E54 540328
governmentalimmu00conn_Page_054.jp2
E55 539121
governmentalimmu00conn_Page_055.jp2
E56 540357
governmentalimmu00conn_Page_056.jp2
E57 539474
governmentalimmu00conn_Page_057.jp2
E58 540354
governmentalimmu00conn_Page_058.jp2
E59 538237
governmentalimmu00conn_Page_059.jp2
E60 539483
governmentalimmu00conn_Page_060.jp2
E61 538246
governmentalimmu00conn_Page_061.jp2
E62 538249
governmentalimmu00conn_Page_062.jp2
E63 538252
governmentalimmu00conn_Page_063.jp2
E64 538224
governmentalimmu00conn_Page_064.jp2
E65 539141
governmentalimmu00conn_Page_065.jp2
E66 539107
governmentalimmu00conn_Page_066.jp2
E67 538196
governmentalimmu00conn_Page_067.jp2
E68 538073
governmentalimmu00conn_Page_068.jp2
E69 537347
governmentalimmu00conn_Page_069.jp2
E70 538257
governmentalimmu00conn_Page_070.jp2
E71 538259
governmentalimmu00conn_Page_071.jp2
E72 538265
governmentalimmu00conn_Page_072.jp2
E73 538266
governmentalimmu00conn_Page_073.jp2
E74 538194
governmentalimmu00conn_Page_074.jp2
E75 538230
governmentalimmu00conn_Page_075.jp2
E76 537384
governmentalimmu00conn_Page_076.jp2
E77 537373
governmentalimmu00conn_Page_077.jp2
E78 537380
governmentalimmu00conn_Page_078.jp2
E79 539382
governmentalimmu00conn_Page_079.jp2
E80
governmentalimmu00conn_Page_080.jp2
E81 538592
governmentalimmu00conn_Page_081.jp2
E82 537361
governmentalimmu00conn_Page_082.jp2
E83 539480
governmentalimmu00conn_Page_083.jp2
E84 303195
governmentalimmu00conn_Page_084.jp2
E85 539414
governmentalimmu00conn_Page_085.jp2
E86 209779
governmentalimmu00conn_Page_086.jp2
E87
governmentalimmu00conn_Page_087.jp2
E88
governmentalimmu00conn_Page_088.jp2
E89 539447
governmentalimmu00conn_Page_089.jp2
E90 539442
governmentalimmu00conn_Page_090.jp2
E91 539487
governmentalimmu00conn_Page_091.jp2
E92 539473
governmentalimmu00conn_Page_092.jp2
E93 540362
governmentalimmu00conn_Page_093.jp2
E94
governmentalimmu00conn_Page_094.jp2
E95 449497
governmentalimmu00conn_Page_095.jp2
E96 540371
governmentalimmu00conn_Page_096.jp2
E97 539485
governmentalimmu00conn_Page_097.jp2
E98 540353
governmentalimmu00conn_Page_098.jp2
E99 540349
governmentalimmu00conn_Page_099.jp2
E100 538572
governmentalimmu00conn_Page_100.jp2
E101 539478
governmentalimmu00conn_Page_101.jp2
E102 360840
governmentalimmu00conn_Page_102.jp2
E103 539368
governmentalimmu00conn_Page_103.jp2
E104 539462
governmentalimmu00conn_Page_104.jp2
E105 539467
governmentalimmu00conn_Page_105.jp2
E106 534946
governmentalimmu00conn_Page_106.jp2
E107 539463
governmentalimmu00conn_Page_107.jp2
E108 497771
governmentalimmu00conn_Page_108.jp2
E109 539384
governmentalimmu00conn_Page_109.jp2
E110 539421
governmentalimmu00conn_Page_110.jp2
E111
governmentalimmu00conn_Page_111.jp2
E112 538568
governmentalimmu00conn_Page_112.jp2
E113 539794
governmentalimmu00conn_Page_113.jp2
E114 538920
governmentalimmu00conn_Page_114.jp2
E115 539699
governmentalimmu00conn_Page_115.jp2
E116 538546
governmentalimmu00conn_Page_116.jp2
E117 539818
governmentalimmu00conn_Page_117.jp2
E118 540101
governmentalimmu00conn_Page_118.jp2
E119 541033
governmentalimmu00conn_Page_119.jp2
E120 540919
governmentalimmu00conn_Page_120.jp2
E121 541022
governmentalimmu00conn_Page_121.jp2
E122 541034
governmentalimmu00conn_Page_122.jp2
E123 540947
governmentalimmu00conn_Page_123.jp2
E124
governmentalimmu00conn_Page_124.jp2
E125
governmentalimmu00conn_Page_125.jp2
E126 540902
governmentalimmu00conn_Page_126.jp2
E127 541877
governmentalimmu00conn_Page_127.jp2
E128 543421
governmentalimmu00conn_Page_128.jp2
E129 543439
governmentalimmu00conn_Page_129.jp2
E130 543402
governmentalimmu00conn_Page_130.jp2
E131
governmentalimmu00conn_Page_131.jp2
E132 543297
governmentalimmu00conn_Page_132.jp2
E133 542516
governmentalimmu00conn_Page_133.jp2
E134 543445
governmentalimmu00conn_Page_134.jp2
E135 544632
governmentalimmu00conn_Page_135.jp2
E136 544665
governmentalimmu00conn_Page_136.jp2
E137 543785
governmentalimmu00conn_Page_137.jp2
E138 544639
governmentalimmu00conn_Page_138.jp2
E139 545893
governmentalimmu00conn_Page_139.jp2
E140 478403
governmentalimmu00conn_Page_140.jp2
E141 545857
governmentalimmu00conn_Page_141.jp2
E142 546994
governmentalimmu00conn_Page_142.jp2
E143 546201
governmentalimmu00conn_Page_143.jp2
E144
governmentalimmu00conn_Page_144.jp2
E145 150922
governmentalimmu00conn_Page_145.jp2
E146 547061
governmentalimmu00conn_Page_146.jp2
E147 377738
governmentalimmu00conn_Page_147.jp2
E148 548330
governmentalimmu00conn_Page_148.jp2
E149 181683
governmentalimmu00conn_Page_149.jp2
E150 57125
governmentalimmu00conn_Page_150.jp2
archive
F1 imagetiff 6.0 13155652
governmentalimmu00conn_Page_001.tif
F2 23423184
governmentalimmu00conn_Page_002.tif
F3 23348204
governmentalimmu00conn_Page_003.tif
F4
governmentalimmu00conn_Page_004.tif
F5
governmentalimmu00conn_Page_005.tif
F6 13126396
governmentalimmu00conn_Page_006.tif
F7
governmentalimmu00conn_Page_007.tif
F8
governmentalimmu00conn_Page_008.tif
F9
governmentalimmu00conn_Page_009.tif
F10
governmentalimmu00conn_Page_010.tif
F11
governmentalimmu00conn_Page_011.tif
F12 13118628
governmentalimmu00conn_Page_012.tif
F13
governmentalimmu00conn_Page_013.tif
F14 13089324
governmentalimmu00conn_Page_014.tif
F15 13097140
governmentalimmu00conn_Page_015.tif
F16
governmentalimmu00conn_Page_016.tif
F17 13067884
governmentalimmu00conn_Page_017.tif
F18
governmentalimmu00conn_Page_018.tif
F19
governmentalimmu00conn_Page_019.tif
F20 13060020
governmentalimmu00conn_Page_020.tif
F21
governmentalimmu00conn_Page_021.tif
F22
governmentalimmu00conn_Page_022.tif
F23
governmentalimmu00conn_Page_023.tif
F24 13023390
governmentalimmu00conn_Page_024.tif
F25
governmentalimmu00conn_Page_025.tif
F26
governmentalimmu00conn_Page_026.tif
F27
governmentalimmu00conn_Page_027.tif
F28 13002058
governmentalimmu00conn_Page_028.tif
F29
governmentalimmu00conn_Page_029.tif
F30
governmentalimmu00conn_Page_030.tif
F31
governmentalimmu00conn_Page_031.tif
F32 12994086
governmentalimmu00conn_Page_032.tif
F33
governmentalimmu00conn_Page_033.tif
F34
governmentalimmu00conn_Page_034.tif
F35 12972802
governmentalimmu00conn_Page_035.tif
F36
governmentalimmu00conn_Page_036.tif
F37
governmentalimmu00conn_Page_037.tif
F38
governmentalimmu00conn_Page_038.tif
F39
governmentalimmu00conn_Page_039.tif
F40
governmentalimmu00conn_Page_040.tif
F41
governmentalimmu00conn_Page_041.tif
F42 13015370
governmentalimmu00conn_Page_042.tif
F43
governmentalimmu00conn_Page_043.tif
F44 13036654
governmentalimmu00conn_Page_044.tif
F45 12986018
governmentalimmu00conn_Page_045.tif
F46 12964782
governmentalimmu00conn_Page_046.tif
F47
governmentalimmu00conn_Page_047.tif
F48
governmentalimmu00conn_Page_048.tif
F49
governmentalimmu00conn_Page_049.tif
F50
governmentalimmu00conn_Page_050.tif
F51
governmentalimmu00conn_Page_051.tif
F52
governmentalimmu00conn_Page_052.tif
F53
governmentalimmu00conn_Page_053.tif
F54
governmentalimmu00conn_Page_054.tif
F55 12956666
governmentalimmu00conn_Page_055.tif
F56
governmentalimmu00conn_Page_056.tif
F57
governmentalimmu00conn_Page_057.tif
F58
governmentalimmu00conn_Page_058.tif
F59 12935478
governmentalimmu00conn_Page_059.tif
F60
governmentalimmu00conn_Page_060.tif
F61
governmentalimmu00conn_Page_061.tif
F62
governmentalimmu00conn_Page_062.tif
F63
governmentalimmu00conn_Page_063.tif
F64
governmentalimmu00conn_Page_064.tif
F65
governmentalimmu00conn_Page_065.tif
F66
governmentalimmu00conn_Page_066.tif
F67
governmentalimmu00conn_Page_067.tif
F68
governmentalimmu00conn_Page_068.tif
F69 12914290
governmentalimmu00conn_Page_069.tif
F70
governmentalimmu00conn_Page_070.tif
F71
governmentalimmu00conn_Page_071.tif
F72
governmentalimmu00conn_Page_072.tif
F73
governmentalimmu00conn_Page_073.tif
F74
governmentalimmu00conn_Page_074.tif
F75
governmentalimmu00conn_Page_075.tif
F76
governmentalimmu00conn_Page_076.tif
F77
governmentalimmu00conn_Page_077.tif
F78
governmentalimmu00conn_Page_078.tif
F79
governmentalimmu00conn_Page_079.tif
F80
governmentalimmu00conn_Page_080.tif
F81 12943546
governmentalimmu00conn_Page_081.tif
F82
governmentalimmu00conn_Page_082.tif
F83
governmentalimmu00conn_Page_083.tif
F84
governmentalimmu00conn_Page_084.tif
F85
governmentalimmu00conn_Page_085.tif
F86
governmentalimmu00conn_Page_086.tif
F87
governmentalimmu00conn_Page_087.tif
F88
governmentalimmu00conn_Page_088.tif
F89
governmentalimmu00conn_Page_089.tif
F90
governmentalimmu00conn_Page_090.tif
F91
governmentalimmu00conn_Page_091.tif
F92
governmentalimmu00conn_Page_092.tif
F93
governmentalimmu00conn_Page_093.tif
F94
governmentalimmu00conn_Page_094.tif
F95
governmentalimmu00conn_Page_095.tif
F96
governmentalimmu00conn_Page_096.tif
F97
governmentalimmu00conn_Page_097.tif
F98
governmentalimmu00conn_Page_098.tif
F99
governmentalimmu00conn_Page_099.tif
F100
governmentalimmu00conn_Page_100.tif
F101
governmentalimmu00conn_Page_101.tif
F102
governmentalimmu00conn_Page_102.tif
F103
governmentalimmu00conn_Page_103.tif
F104
governmentalimmu00conn_Page_104.tif
F105
governmentalimmu00conn_Page_105.tif
F106
governmentalimmu00conn_Page_106.tif
F107
governmentalimmu00conn_Page_107.tif
F108
governmentalimmu00conn_Page_108.tif
F109
governmentalimmu00conn_Page_109.tif
F110
governmentalimmu00conn_Page_110.tif
F111
governmentalimmu00conn_Page_111.tif
F112
governmentalimmu00conn_Page_112.tif
F113
governmentalimmu00conn_Page_113.tif
F114 12951518
governmentalimmu00conn_Page_114.tif
F115
governmentalimmu00conn_Page_115.tif
F116
governmentalimmu00conn_Page_116.tif
F117
governmentalimmu00conn_Page_117.tif
F118 12980726
governmentalimmu00conn_Page_118.tif
F119
governmentalimmu00conn_Page_119.tif
F120
governmentalimmu00conn_Page_120.tif
F121
governmentalimmu00conn_Page_121.tif
F122
governmentalimmu00conn_Page_122.tif
F123
governmentalimmu00conn_Page_123.tif
F124
governmentalimmu00conn_Page_124.tif
F125
governmentalimmu00conn_Page_125.tif
F126
governmentalimmu00conn_Page_126.tif
F127
governmentalimmu00conn_Page_127.tif
F128
governmentalimmu00conn_Page_128.tif
F129
governmentalimmu00conn_Page_129.tif
F130
governmentalimmu00conn_Page_130.tif
F131
governmentalimmu00conn_Page_131.tif
F132
governmentalimmu00conn_Page_132.tif
F133 13038628
governmentalimmu00conn_Page_133.tif
F134
governmentalimmu00conn_Page_134.tif
F135
governmentalimmu00conn_Page_135.tif
F136
governmentalimmu00conn_Page_136.tif
F137
governmentalimmu00conn_Page_137.tif
F138
governmentalimmu00conn_Page_138.tif
F139 4371382
governmentalimmu00conn_Page_139.tif
F140
governmentalimmu00conn_Page_140.tif
F141
governmentalimmu00conn_Page_141.tif
F142 4381150
governmentalimmu00conn_Page_142.tif
F143 4373974
governmentalimmu00conn_Page_143.tif
F144
governmentalimmu00conn_Page_144.tif
F145
governmentalimmu00conn_Page_145.tif
F146
governmentalimmu00conn_Page_146.tif
F147 4383726
governmentalimmu00conn_Page_147.tif
F148 4390918
governmentalimmu00conn_Page_148.tif
F149
governmentalimmu00conn_Page_149.tif
F150
governmentalimmu00conn_Page_150.tif
R1 textx-pro 7964
governmentalimmu00conn_Page_001.pro
R2 1318
governmentalimmu00conn_Page_002.pro
R3 5849
governmentalimmu00conn_Page_003.pro
R4 23401
governmentalimmu00conn_Page_004.pro
R5 33792
governmentalimmu00conn_Page_005.pro
R6 37076
governmentalimmu00conn_Page_006.pro
R7 30066
governmentalimmu00conn_Page_007.pro
R8 33184
governmentalimmu00conn_Page_008.pro
R9 30499
governmentalimmu00conn_Page_009.pro
R10 31671
governmentalimmu00conn_Page_010.pro
R11 28657
governmentalimmu00conn_Page_011.pro
R12 33102
governmentalimmu00conn_Page_012.pro
R13 29278
governmentalimmu00conn_Page_013.pro
R14 28914
governmentalimmu00conn_Page_014.pro
R15 31018
governmentalimmu00conn_Page_015.pro
R16 31187
governmentalimmu00conn_Page_016.pro
R17 9258
governmentalimmu00conn_Page_017.pro
R18 28566
governmentalimmu00conn_Page_018.pro
R19 31896
governmentalimmu00conn_Page_019.pro
R20 36820
governmentalimmu00conn_Page_020.pro
R21 26842
governmentalimmu00conn_Page_021.pro
R22 30285
governmentalimmu00conn_Page_022.pro
R23 33494
governmentalimmu00conn_Page_023.pro
R24 37901
governmentalimmu00conn_Page_024.pro
R25 49585
governmentalimmu00conn_Page_025.pro
R26 36954
governmentalimmu00conn_Page_026.pro
R27 33502
governmentalimmu00conn_Page_027.pro
R28 33715
governmentalimmu00conn_Page_028.pro
R29 41751
governmentalimmu00conn_Page_029.pro
R30 31358
governmentalimmu00conn_Page_030.pro
R31 36006
governmentalimmu00conn_Page_031.pro
R32 31756
governmentalimmu00conn_Page_032.pro
R33 33950
governmentalimmu00conn_Page_033.pro
R34 48158
governmentalimmu00conn_Page_034.pro
R35 38915
governmentalimmu00conn_Page_035.pro
R36 39133
governmentalimmu00conn_Page_036.pro
R37 45187
governmentalimmu00conn_Page_037.pro
R38 54493
governmentalimmu00conn_Page_038.pro
R39 35428
governmentalimmu00conn_Page_039.pro
R40 33144
governmentalimmu00conn_Page_040.pro
R41 30257
governmentalimmu00conn_Page_041.pro
R42 38706
governmentalimmu00conn_Page_042.pro
R43 40895
governmentalimmu00conn_Page_043.pro
R44 36990
governmentalimmu00conn_Page_044.pro
R45 14820
governmentalimmu00conn_Page_045.pro
R46 34083
governmentalimmu00conn_Page_046.pro
R47 8207
governmentalimmu00conn_Page_047.pro
R48 29991
governmentalimmu00conn_Page_048.pro
R49 34120
governmentalimmu00conn_Page_049.pro
R50 39450
governmentalimmu00conn_Page_050.pro
R51 37401
governmentalimmu00conn_Page_051.pro
R52 51084
governmentalimmu00conn_Page_052.pro
R53 41470
governmentalimmu00conn_Page_053.pro
R54 42505
governmentalimmu00conn_Page_054.pro
R55 44532
governmentalimmu00conn_Page_055.pro
R56 35177
governmentalimmu00conn_Page_056.pro
R57 39487
governmentalimmu00conn_Page_057.pro
R58 33246
governmentalimmu00conn_Page_058.pro
R59 33611
governmentalimmu00conn_Page_059.pro
R60 39137
governmentalimmu00conn_Page_060.pro
R61 46401
governmentalimmu00conn_Page_061.pro
R62 44324
governmentalimmu00conn_Page_062.pro
R63 37211
governmentalimmu00conn_Page_063.pro
R64 31946
governmentalimmu00conn_Page_064.pro
R65 33707
governmentalimmu00conn_Page_065.pro
R66 35685
governmentalimmu00conn_Page_066.pro
R67 31167
governmentalimmu00conn_Page_067.pro
R68 36312
governmentalimmu00conn_Page_068.pro
R69 35333
governmentalimmu00conn_Page_069.pro
R70 30792
governmentalimmu00conn_Page_070.pro
R71 34176
governmentalimmu00conn_Page_071.pro
R72 37137
governmentalimmu00conn_Page_072.pro
R73 34664
governmentalimmu00conn_Page_073.pro
R74 40008
governmentalimmu00conn_Page_074.pro
R75 29757
governmentalimmu00conn_Page_075.pro
R76 34478
governmentalimmu00conn_Page_076.pro
R77 35104
governmentalimmu00conn_Page_077.pro
R78 37585
governmentalimmu00conn_Page_078.pro
R79 44019
governmentalimmu00conn_Page_079.pro
R80 40136
governmentalimmu00conn_Page_080.pro
R81 48868
governmentalimmu00conn_Page_081.pro
R82 33501
governmentalimmu00conn_Page_082.pro
R83 33969
governmentalimmu00conn_Page_083.pro
R84 11779
governmentalimmu00conn_Page_084.pro
R85 35174
governmentalimmu00conn_Page_085.pro
R86 7550
governmentalimmu00conn_Page_086.pro
R87 28237
governmentalimmu00conn_Page_087.pro
R88 29686
governmentalimmu00conn_Page_088.pro
R89 47578
governmentalimmu00conn_Page_089.pro
R90 52840
governmentalimmu00conn_Page_090.pro
R91 31250
governmentalimmu00conn_Page_091.pro
R92 38065
governmentalimmu00conn_Page_092.pro
R93 35928
governmentalimmu00conn_Page_093.pro
R94 31184
governmentalimmu00conn_Page_094.pro
R95 19550
governmentalimmu00conn_Page_095.pro
R96 24676
governmentalimmu00conn_Page_096.pro
R97 30216
governmentalimmu00conn_Page_097.pro
R98 31143
governmentalimmu00conn_Page_098.pro
R99 34980
governmentalimmu00conn_Page_099.pro
R100 30634
governmentalimmu00conn_Page_100.pro
R101 34041
governmentalimmu00conn_Page_101.pro
R102 15015
governmentalimmu00conn_Page_102.pro
R103 23846
governmentalimmu00conn_Page_103.pro
R104 23246
governmentalimmu00conn_Page_104.pro
R105 26598
governmentalimmu00conn_Page_105.pro
R106 17713
governmentalimmu00conn_Page_106.pro
R107 28069
governmentalimmu00conn_Page_107.pro
R108 20518
governmentalimmu00conn_Page_108.pro
R109 24707
governmentalimmu00conn_Page_109.pro
R110 22914
governmentalimmu00conn_Page_110.pro
R111 21583
governmentalimmu00conn_Page_111.pro
R112 31943
governmentalimmu00conn_Page_112.pro
R113 30259
governmentalimmu00conn_Page_113.pro
R114 56571
governmentalimmu00conn_Page_114.pro
R115 41867
governmentalimmu00conn_Page_115.pro
R116 44668
governmentalimmu00conn_Page_116.pro
R117 55287
governmentalimmu00conn_Page_117.pro
R118 36288
governmentalimmu00conn_Page_118.pro
R119 39807
governmentalimmu00conn_Page_119.pro
R120 48636
governmentalimmu00conn_Page_120.pro
R121 39390
governmentalimmu00conn_Page_121.pro
R122 46432
governmentalimmu00conn_Page_122.pro
R123 31638
governmentalimmu00conn_Page_123.pro
R124 32371
governmentalimmu00conn_Page_124.pro
R125 54568
governmentalimmu00conn_Page_125.pro
R126 43864
governmentalimmu00conn_Page_126.pro
R127 43945
governmentalimmu00conn_Page_127.pro
R128 47778
governmentalimmu00conn_Page_128.pro
R129 62065
governmentalimmu00conn_Page_129.pro
R130 51707
governmentalimmu00conn_Page_130.pro
R131 55689
governmentalimmu00conn_Page_131.pro
R132 42958
governmentalimmu00conn_Page_132.pro
R133 57505
governmentalimmu00conn_Page_133.pro
R134 36909
governmentalimmu00conn_Page_134.pro
R135 57392
governmentalimmu00conn_Page_135.pro
R136 54216
governmentalimmu00conn_Page_136.pro
R137 60544
governmentalimmu00conn_Page_137.pro
R138 54345
governmentalimmu00conn_Page_138.pro
R139 37761
governmentalimmu00conn_Page_139.pro
R140 24114
governmentalimmu00conn_Page_140.pro
R141 36419
governmentalimmu00conn_Page_141.pro
R142 32355
governmentalimmu00conn_Page_142.pro
R143 31293
governmentalimmu00conn_Page_143.pro
R144 30104
governmentalimmu00conn_Page_144.pro
R145 6635
governmentalimmu00conn_Page_145.pro
R146 35861
governmentalimmu00conn_Page_146.pro
R147 17018
governmentalimmu00conn_Page_147.pro
R148 29647
governmentalimmu00conn_Page_148.pro
R149 7661
governmentalimmu00conn_Page_149.pro
R150 1364
governmentalimmu00conn_Page_150.pro
T1 textplain 429
governmentalimmu00conn_Page_001.txt
T2 118
governmentalimmu00conn_Page_002.txt
T3 245
governmentalimmu00conn_Page_003.txt
T4 1026
governmentalimmu00conn_Page_004.txt
T5 1818
governmentalimmu00conn_Page_005.txt
T6 1887
governmentalimmu00conn_Page_006.txt
T7 1434
governmentalimmu00conn_Page_007.txt
T8 1407
governmentalimmu00conn_Page_008.txt
T9 1363
governmentalimmu00conn_Page_009.txt
T10 1416
governmentalimmu00conn_Page_010.txt
T11 1310
governmentalimmu00conn_Page_011.txt
T12 1493
governmentalimmu00conn_Page_012.txt
T13 1280
governmentalimmu00conn_Page_013.txt
T14 1297
governmentalimmu00conn_Page_014.txt
T15 1396
governmentalimmu00conn_Page_015.txt
T16 1351
governmentalimmu00conn_Page_016.txt
T17 465
governmentalimmu00conn_Page_017.txt
T18 1315
governmentalimmu00conn_Page_018.txt
T19 1398
governmentalimmu00conn_Page_019.txt
T20 1687
governmentalimmu00conn_Page_020.txt
T21 1225
governmentalimmu00conn_Page_021.txt
T22 1319
governmentalimmu00conn_Page_022.txt
T23 1487
governmentalimmu00conn_Page_023.txt
T24 1675
governmentalimmu00conn_Page_024.txt
T25 2164
governmentalimmu00conn_Page_025.txt
T26 1678
governmentalimmu00conn_Page_026.txt
T27 1497
governmentalimmu00conn_Page_027.txt
T28 1505
governmentalimmu00conn_Page_028.txt
T29 1868
governmentalimmu00conn_Page_029.txt
T30 1360
governmentalimmu00conn_Page_030.txt
T31 1543
governmentalimmu00conn_Page_031.txt
T32 1397
governmentalimmu00conn_Page_032.txt
T33 1454
governmentalimmu00conn_Page_033.txt
T34 2105
governmentalimmu00conn_Page_034.txt
T35 1731
governmentalimmu00conn_Page_035.txt
T36 1736
governmentalimmu00conn_Page_036.txt
T37 1975
governmentalimmu00conn_Page_037.txt
T38 2393
governmentalimmu00conn_Page_038.txt
T39 1618
governmentalimmu00conn_Page_039.txt
T40 1475
governmentalimmu00conn_Page_040.txt
T41
governmentalimmu00conn_Page_041.txt
T42 1778
governmentalimmu00conn_Page_042.txt
T43 1788
governmentalimmu00conn_Page_043.txt
T44 1662
governmentalimmu00conn_Page_044.txt
T45 771
governmentalimmu00conn_Page_045.txt
T46 1484
governmentalimmu00conn_Page_046.txt
T47 410
governmentalimmu00conn_Page_047.txt
T48 1335
governmentalimmu00conn_Page_048.txt
T49 1478
governmentalimmu00conn_Page_049.txt
T50 1758
governmentalimmu00conn_Page_050.txt
T51 1653
governmentalimmu00conn_Page_051.txt
T52 2280
governmentalimmu00conn_Page_052.txt
T53 1799
governmentalimmu00conn_Page_053.txt
T54 1909
governmentalimmu00conn_Page_054.txt
T55 1955
governmentalimmu00conn_Page_055.txt
T56 1580
governmentalimmu00conn_Page_056.txt
T57 1817
governmentalimmu00conn_Page_057.txt
T58 1440
governmentalimmu00conn_Page_058.txt
T59 1593
governmentalimmu00conn_Page_059.txt
T60 1718
governmentalimmu00conn_Page_060.txt
T61 2086
governmentalimmu00conn_Page_061.txt
T62 2011
governmentalimmu00conn_Page_062.txt
T63 1677
governmentalimmu00conn_Page_063.txt
T64 1485
governmentalimmu00conn_Page_064.txt
T65
governmentalimmu00conn_Page_065.txt
T66 1550
governmentalimmu00conn_Page_066.txt
T67 1415
governmentalimmu00conn_Page_067.txt
T68 1658
governmentalimmu00conn_Page_068.txt
T69 1644
governmentalimmu00conn_Page_069.txt
T70 1380
governmentalimmu00conn_Page_070.txt
T71 1533
governmentalimmu00conn_Page_071.txt
T72 1587
governmentalimmu00conn_Page_072.txt
T73 1542
governmentalimmu00conn_Page_073.txt
T74
governmentalimmu00conn_Page_074.txt
T75 1330
governmentalimmu00conn_Page_075.txt
T76 1552
governmentalimmu00conn_Page_076.txt
T77 1574
governmentalimmu00conn_Page_077.txt
T78 1659
governmentalimmu00conn_Page_078.txt
T79 1963
governmentalimmu00conn_Page_079.txt
T80 1748
governmentalimmu00conn_Page_080.txt
T81 2168
governmentalimmu00conn_Page_081.txt
T82 1491
governmentalimmu00conn_Page_082.txt
T83
governmentalimmu00conn_Page_083.txt
T84 503
governmentalimmu00conn_Page_084.txt
T85 1546
governmentalimmu00conn_Page_085.txt
T86 318
governmentalimmu00conn_Page_086.txt
T87 1354
governmentalimmu00conn_Page_087.txt
T88 1338
governmentalimmu00conn_Page_088.txt
T89 2012
governmentalimmu00conn_Page_089.txt
T90 2340
governmentalimmu00conn_Page_090.txt
T91 1437
governmentalimmu00conn_Page_091.txt
T92 1629
governmentalimmu00conn_Page_092.txt
T93 1571
governmentalimmu00conn_Page_093.txt
T94 1361
governmentalimmu00conn_Page_094.txt
T95 880
governmentalimmu00conn_Page_095.txt
T96 1175
governmentalimmu00conn_Page_096.txt
T97 1424
governmentalimmu00conn_Page_097.txt
T98 1389
governmentalimmu00conn_Page_098.txt
T99 1549
governmentalimmu00conn_Page_099.txt
T100 1379
governmentalimmu00conn_Page_100.txt
T101
governmentalimmu00conn_Page_101.txt
T102 651
governmentalimmu00conn_Page_102.txt
T103 1436
governmentalimmu00conn_Page_103.txt
T104
governmentalimmu00conn_Page_104.txt
T105 1263
governmentalimmu00conn_Page_105.txt
T106 980
governmentalimmu00conn_Page_106.txt
T107 1245
governmentalimmu00conn_Page_107.txt
T108 1506
governmentalimmu00conn_Page_108.txt
T109 1551
governmentalimmu00conn_Page_109.txt
T110 1185
governmentalimmu00conn_Page_110.txt
T111 1068
governmentalimmu00conn_Page_111.txt
T112 1729
governmentalimmu00conn_Page_112.txt
T113 1588
governmentalimmu00conn_Page_113.txt
T114 2559
governmentalimmu00conn_Page_114.txt
T115 1966
governmentalimmu00conn_Page_115.txt
T116 2058
governmentalimmu00conn_Page_116.txt
T117 2500
governmentalimmu00conn_Page_117.txt
T118 1703
governmentalimmu00conn_Page_118.txt
T119 1873
governmentalimmu00conn_Page_119.txt
T120 2202
governmentalimmu00conn_Page_120.txt
T121 1819
governmentalimmu00conn_Page_121.txt
T122 2173
governmentalimmu00conn_Page_122.txt
T123
governmentalimmu00conn_Page_123.txt
T124 1525
governmentalimmu00conn_Page_124.txt
T125 2458
governmentalimmu00conn_Page_125.txt
T126 1870
governmentalimmu00conn_Page_126.txt
T127 1995
governmentalimmu00conn_Page_127.txt
T128 2174
governmentalimmu00conn_Page_128.txt
T129 2786
governmentalimmu00conn_Page_129.txt
T130 2375
governmentalimmu00conn_Page_130.txt
T131 2310
governmentalimmu00conn_Page_131.txt
T132 1986
governmentalimmu00conn_Page_132.txt
T133 2602
governmentalimmu00conn_Page_133.txt
T134
governmentalimmu00conn_Page_134.txt
T135 2616
governmentalimmu00conn_Page_135.txt
T136 2464
governmentalimmu00conn_Page_136.txt
T137 2462
governmentalimmu00conn_Page_137.txt
T138 2488
governmentalimmu00conn_Page_138.txt
T139
governmentalimmu00conn_Page_139.txt
T140 1081
governmentalimmu00conn_Page_140.txt
T141 1633
governmentalimmu00conn_Page_141.txt
T142 1445
governmentalimmu00conn_Page_142.txt
T143 1358
governmentalimmu00conn_Page_143.txt
T144 1314
governmentalimmu00conn_Page_144.txt
T145 371
governmentalimmu00conn_Page_145.txt
T146 1504
governmentalimmu00conn_Page_146.txt
T147 714
governmentalimmu00conn_Page_147.txt
T148 1688
governmentalimmu00conn_Page_148.txt
T149 357
governmentalimmu00conn_Page_149.txt
T150 185
governmentalimmu00conn_Page_150.txt
UR1 32927
governmentalimmu00conn_Page_001thm.jpg
applicationpdf 7954621
governmentalimmu00conn.pdf
AR1 57981
governmentalimmu00conn_Page_001.QC.jpg
AR2 52839
governmentalimmu00conn_Page_002.QC.jpg
AR3 36019
governmentalimmu00conn_Page_002thm.jpg
AR4 73622
governmentalimmu00conn_Page_003.QC.jpg
AR5 41455
governmentalimmu00conn_Page_003thm.jpg
AR6 87111
governmentalimmu00conn_Page_004.QC.jpg
AR7 40613
governmentalimmu00conn_Page_004thm.jpg
AR8 88246
governmentalimmu00conn_Page_005.QC.jpg
AR9 39253
governmentalimmu00conn_Page_005thm.jpg
AR10 95545
governmentalimmu00conn_Page_006.QC.jpg
AR11 42872
governmentalimmu00conn_Page_006thm.jpg
AR12 96883
governmentalimmu00conn_Page_007.QC.jpg
AR13 42108
governmentalimmu00conn_Page_007thm.jpg
AR14 106639
governmentalimmu00conn_Page_008.QC.jpg
AR15 44858
governmentalimmu00conn_Page_008thm.jpg
AR16 96947
governmentalimmu00conn_Page_009.QC.jpg
AR17 42126
governmentalimmu00conn_Page_009thm.jpg
AR18 98200
governmentalimmu00conn_Page_010.QC.jpg
AR19 43869
governmentalimmu00conn_Page_010thm.jpg
AR20 99468
governmentalimmu00conn_Page_011.QC.jpg
AR21 45027
governmentalimmu00conn_Page_011thm.jpg
AR22 101831
governmentalimmu00conn_Page_012.QC.jpg
AR23 44752
governmentalimmu00conn_Page_012thm.jpg
AR24 95996
governmentalimmu00conn_Page_013.QC.jpg
AR25 44761
governmentalimmu00conn_Page_013thm.jpg
AR26 98646
governmentalimmu00conn_Page_014.QC.jpg
AR27 43899
governmentalimmu00conn_Page_014thm.jpg
AR28 103183
governmentalimmu00conn_Page_015.QC.jpg
AR29 45762
governmentalimmu00conn_Page_015thm.jpg
AR30 102794
governmentalimmu00conn_Page_016.QC.jpg
AR31 44325
governmentalimmu00conn_Page_016thm.jpg
AR32 50167
governmentalimmu00conn_Page_017.QC.jpg
AR33 29864
governmentalimmu00conn_Page_017thm.jpg
AR34 95805
governmentalimmu00conn_Page_018.QC.jpg
AR35 42342
governmentalimmu00conn_Page_018thm.jpg
AR36 109718
governmentalimmu00conn_Page_019.QC.jpg
AR37 46265
governmentalimmu00conn_Page_019thm.jpg
AR38 112029
governmentalimmu00conn_Page_020.QC.jpg
AR39 46112
governmentalimmu00conn_Page_020thm.jpg
AR40 95116
governmentalimmu00conn_Page_021.QC.jpg
AR41 43028
governmentalimmu00conn_Page_021thm.jpg
AR42 102346
governmentalimmu00conn_Page_022.QC.jpg
AR43 45023
governmentalimmu00conn_Page_022thm.jpg
AR44 104425
governmentalimmu00conn_Page_023.QC.jpg
AR45 44377
governmentalimmu00conn_Page_023thm.jpg
AR46 115820
governmentalimmu00conn_Page_024.QC.jpg
AR47 47144
governmentalimmu00conn_Page_024thm.jpg
AR48 127864
governmentalimmu00conn_Page_025.QC.jpg
AR49 50527
governmentalimmu00conn_Page_025thm.jpg
AR50 111609
governmentalimmu00conn_Page_026.QC.jpg
AR51 47195
governmentalimmu00conn_Page_026thm.jpg
AR52 107580
governmentalimmu00conn_Page_027.QC.jpg
AR53 46122
governmentalimmu00conn_Page_027thm.jpg
AR54 102717
governmentalimmu00conn_Page_028.QC.jpg
AR55 44730
governmentalimmu00conn_Page_028thm.jpg
AR56 114975
governmentalimmu00conn_Page_029.QC.jpg
AR57 46703
governmentalimmu00conn_Page_029thm.jpg
AR58 106183
governmentalimmu00conn_Page_030.QC.jpg
AR59 46583
governmentalimmu00conn_Page_030thm.jpg
AR60 117604
governmentalimmu00conn_Page_031.QC.jpg
AR61 48571
governmentalimmu00conn_Page_031thm.jpg
AR62 109890
governmentalimmu00conn_Page_032.QC.jpg
AR63 47454
governmentalimmu00conn_Page_032thm.jpg
AR64 110797
governmentalimmu00conn_Page_033.QC.jpg
AR65 46352
governmentalimmu00conn_Page_033thm.jpg
AR66 117554
governmentalimmu00conn_Page_034.QC.jpg
AR67 47041
governmentalimmu00conn_Page_034thm.jpg
AR68 113085
governmentalimmu00conn_Page_035.QC.jpg
AR69 48328
governmentalimmu00conn_Page_035thm.jpg
AR70 115483
governmentalimmu00conn_Page_036.QC.jpg
AR71 48350
governmentalimmu00conn_Page_036thm.jpg
AR72 120489
governmentalimmu00conn_Page_037.QC.jpg
AR73 48621
governmentalimmu00conn_Page_037thm.jpg
AR74 129456
governmentalimmu00conn_Page_038.QC.jpg
AR75 49353
governmentalimmu00conn_Page_038thm.jpg
AR76 109286
governmentalimmu00conn_Page_039.QC.jpg
AR77 46228
governmentalimmu00conn_Page_039thm.jpg
AR78 110001
governmentalimmu00conn_Page_040.QC.jpg
AR79 46604
governmentalimmu00conn_Page_040thm.jpg
AR80 105653
governmentalimmu00conn_Page_041.QC.jpg
AR81 45432
governmentalimmu00conn_Page_041thm.jpg
AR82 115815
governmentalimmu00conn_Page_042.QC.jpg
AR83 48045
governmentalimmu00conn_Page_042thm.jpg
AR84 110861
governmentalimmu00conn_Page_043.QC.jpg
AR85 47070
governmentalimmu00conn_Page_043thm.jpg
AR86 117335
governmentalimmu00conn_Page_044.QC.jpg
AR87 48148
governmentalimmu00conn_Page_044thm.jpg
AR88 66180
governmentalimmu00conn_Page_045.QC.jpg
AR89 34792
governmentalimmu00conn_Page_045thm.jpg
AR90 115559
governmentalimmu00conn_Page_046.QC.jpg
AR91 47903
governmentalimmu00conn_Page_046thm.jpg
AR92 51224
governmentalimmu00conn_Page_047.QC.jpg
AR93 29809
governmentalimmu00conn_Page_047thm.jpg
AR94 104190
governmentalimmu00conn_Page_048.QC.jpg
AR95 44689
governmentalimmu00conn_Page_048thm.jpg
AR96 115160
governmentalimmu00conn_Page_049.QC.jpg
AR97 48140
governmentalimmu00conn_Page_049thm.jpg
AR98 119663
governmentalimmu00conn_Page_050.QC.jpg
AR99 47585
governmentalimmu00conn_Page_050thm.jpg
AR100 114830
governmentalimmu00conn_Page_051.QC.jpg
AR101 47307
governmentalimmu00conn_Page_051thm.jpg
AR102 128085
governmentalimmu00conn_Page_052.QC.jpg
AR103 49103
governmentalimmu00conn_Page_052thm.jpg
AR104 127196
governmentalimmu00conn_Page_053.QC.jpg
AR105 50655
governmentalimmu00conn_Page_053thm.jpg
AR106 119883
governmentalimmu00conn_Page_054.QC.jpg
AR107
governmentalimmu00conn_Page_054thm.jpg
AR108 121107
governmentalimmu00conn_Page_055.QC.jpg
AR109 49636
governmentalimmu00conn_Page_055thm.jpg
AR110 111142
governmentalimmu00conn_Page_056.QC.jpg
AR111 47122
governmentalimmu00conn_Page_056thm.jpg
AR112 107316
governmentalimmu00conn_Page_057.QC.jpg
AR113 45738
governmentalimmu00conn_Page_057thm.jpg
AR114 110002
governmentalimmu00conn_Page_058.QC.jpg
AR115 46602
governmentalimmu00conn_Page_058thm.jpg
AR116 112710
governmentalimmu00conn_Page_059.QC.jpg
AR117 46994
governmentalimmu00conn_Page_059thm.jpg
AR118 119966
governmentalimmu00conn_Page_060.QC.jpg
AR119 49416
governmentalimmu00conn_Page_060thm.jpg
AR120 116570
governmentalimmu00conn_Page_061.QC.jpg
AR121 46311
governmentalimmu00conn_Page_061thm.jpg
AR122 114008
governmentalimmu00conn_Page_062.QC.jpg
AR123 46247
governmentalimmu00conn_Page_062thm.jpg
AR124 108819
governmentalimmu00conn_Page_063.QC.jpg
AR125 46475
governmentalimmu00conn_Page_063thm.jpg
AR126 107344
governmentalimmu00conn_Page_064.QC.jpg
AR127 45537
governmentalimmu00conn_Page_064thm.jpg
AR128 113312
governmentalimmu00conn_Page_065.QC.jpg
AR129 47157
governmentalimmu00conn_Page_065thm.jpg
AR130 117696
governmentalimmu00conn_Page_066.QC.jpg
AR131 49241
governmentalimmu00conn_Page_066thm.jpg
AR132 109894
governmentalimmu00conn_Page_067.QC.jpg
AR133 47211
governmentalimmu00conn_Page_067thm.jpg
AR134 109960
governmentalimmu00conn_Page_068.QC.jpg
AR135 45680
governmentalimmu00conn_Page_068thm.jpg
AR136 115353
governmentalimmu00conn_Page_069.QC.jpg
AR137 47530
governmentalimmu00conn_Page_069thm.jpg
AR138 105119
governmentalimmu00conn_Page_070.QC.jpg
AR139 45617
governmentalimmu00conn_Page_070thm.jpg
AR140 109318
governmentalimmu00conn_Page_071.QC.jpg
AR141 46745
governmentalimmu00conn_Page_071thm.jpg
AR142 121403
governmentalimmu00conn_Page_072.QC.jpg
AR143 48151
governmentalimmu00conn_Page_072thm.jpg
AR144 106999
governmentalimmu00conn_Page_073.QC.jpg
AR145 45575
governmentalimmu00conn_Page_073thm.jpg
AR146 113064
governmentalimmu00conn_Page_074.QC.jpg
AR147 45613
governmentalimmu00conn_Page_074thm.jpg
AR148 101939
governmentalimmu00conn_Page_075.QC.jpg
AR149 43226
governmentalimmu00conn_Page_075thm.jpg
AR150 104300
governmentalimmu00conn_Page_076.QC.jpg
AR151 45402
governmentalimmu00conn_Page_076thm.jpg
AR152 105250
governmentalimmu00conn_Page_077.QC.jpg
AR153 44760
governmentalimmu00conn_Page_077thm.jpg
AR154 109298
governmentalimmu00conn_Page_078.QC.jpg
AR155 46199
governmentalimmu00conn_Page_078thm.jpg
AR156 119565
governmentalimmu00conn_Page_079.QC.jpg
AR157 47972
governmentalimmu00conn_Page_079thm.jpg
AR158 114931
governmentalimmu00conn_Page_080.QC.jpg
AR159 47835
governmentalimmu00conn_Page_080thm.jpg
AR160 124828
governmentalimmu00conn_Page_081.QC.jpg
AR161 48576
governmentalimmu00conn_Page_081thm.jpg
AR162 107783
governmentalimmu00conn_Page_082.QC.jpg
AR163 46375
governmentalimmu00conn_Page_082thm.jpg
AR164 108896
governmentalimmu00conn_Page_083.QC.jpg
AR165
governmentalimmu00conn_Page_083thm.jpg
AR166 58997
governmentalimmu00conn_Page_084.QC.jpg
AR167 33234
governmentalimmu00conn_Page_084thm.jpg
AR168 114705
governmentalimmu00conn_Page_085.QC.jpg
AR169 48027
governmentalimmu00conn_Page_085thm.jpg
AR170 51126
governmentalimmu00conn_Page_086.QC.jpg
AR171 29503
governmentalimmu00conn_Page_086thm.jpg
AR172 99907
governmentalimmu00conn_Page_087.QC.jpg
AR173 42656
governmentalimmu00conn_Page_087thm.jpg
AR174 103252
governmentalimmu00conn_Page_088.QC.jpg
AR175 44333
governmentalimmu00conn_Page_088thm.jpg
AR176 130337
governmentalimmu00conn_Page_089.QC.jpg
AR177 50580
governmentalimmu00conn_Page_089thm.jpg
AR178 123689
governmentalimmu00conn_Page_090.QC.jpg
AR179 47977
governmentalimmu00conn_Page_090thm.jpg
AR180 104840
governmentalimmu00conn_Page_091.QC.jpg
AR181 44945
governmentalimmu00conn_Page_091thm.jpg
AR182 121340
governmentalimmu00conn_Page_092.QC.jpg
AR183 49334
governmentalimmu00conn_Page_092thm.jpg
AR184 116153
governmentalimmu00conn_Page_093.QC.jpg
AR185 47824
governmentalimmu00conn_Page_093thm.jpg
AR186 105756
governmentalimmu00conn_Page_094.QC.jpg
AR187 46200
governmentalimmu00conn_Page_094thm.jpg
AR188 77322
governmentalimmu00conn_Page_095.QC.jpg
AR189 37583
governmentalimmu00conn_Page_095thm.jpg
AR190 92472
governmentalimmu00conn_Page_096.QC.jpg
AR191 41477
governmentalimmu00conn_Page_096thm.jpg
AR192 101988
governmentalimmu00conn_Page_097.QC.jpg
AR193 44546
governmentalimmu00conn_Page_097thm.jpg
AR194 108037
governmentalimmu00conn_Page_098.QC.jpg
AR195 45990
governmentalimmu00conn_Page_098thm.jpg
AR196 113003
governmentalimmu00conn_Page_099.QC.jpg
AR197 48413
governmentalimmu00conn_Page_099thm.jpg
AR198 105635
governmentalimmu00conn_Page_100.QC.jpg
AR199 46195
governmentalimmu00conn_Page_100thm.jpg
AR200 114592
governmentalimmu00conn_Page_101.QC.jpg
AR201 46673
governmentalimmu00conn_Page_101thm.jpg
AR202 64739
governmentalimmu00conn_Page_102.QC.jpg
AR203 34396
governmentalimmu00conn_Page_102thm.jpg
AR204 97988
governmentalimmu00conn_Page_103.QC.jpg
AR205 42300
governmentalimmu00conn_Page_103thm.jpg
AR206 97137
governmentalimmu00conn_Page_104.QC.jpg
AR207 43619
governmentalimmu00conn_Page_104thm.jpg
AR208 100026
governmentalimmu00conn_Page_105.QC.jpg
AR209 43573
governmentalimmu00conn_Page_105thm.jpg
AR210 88790
governmentalimmu00conn_Page_106.QC.jpg
AR211 40864
governmentalimmu00conn_Page_106thm.jpg
AR212 91801
governmentalimmu00conn_Page_107.QC.jpg
AR213 40218
governmentalimmu00conn_Page_107thm.jpg
AR214 82007
governmentalimmu00conn_Page_108.QC.jpg
AR215 39194
governmentalimmu00conn_Page_108thm.jpg
AR216 93800
governmentalimmu00conn_Page_109.QC.jpg
AR217 42184
governmentalimmu00conn_Page_109thm.jpg
AR218 93087
governmentalimmu00conn_Page_110.QC.jpg
AR219 42527
governmentalimmu00conn_Page_110thm.jpg
AR220 92657
governmentalimmu00conn_Page_111.QC.jpg
AR221 41823
governmentalimmu00conn_Page_111thm.jpg
AR222 102854
governmentalimmu00conn_Page_112.QC.jpg
AR223 43814
governmentalimmu00conn_Page_112thm.jpg
AR224 93424
governmentalimmu00conn_Page_113.QC.jpg
AR225 40828
governmentalimmu00conn_Page_113thm.jpg
AR226 124080
governmentalimmu00conn_Page_114.QC.jpg
AR227 47710
governmentalimmu00conn_Page_114thm.jpg
AR228 100577
governmentalimmu00conn_Page_115.QC.jpg
AR229 43660
governmentalimmu00conn_Page_115thm.jpg
AR230 108975
governmentalimmu00conn_Page_116.QC.jpg
AR231 44709
governmentalimmu00conn_Page_116thm.jpg
AR232 123257
governmentalimmu00conn_Page_117.QC.jpg
AR233 46917
governmentalimmu00conn_Page_117thm.jpg
AR234 98570
governmentalimmu00conn_Page_118.QC.jpg
AR235 44669
governmentalimmu00conn_Page_118thm.jpg
AR236 106021
governmentalimmu00conn_Page_119.QC.jpg
AR237 45031
governmentalimmu00conn_Page_119thm.jpg
AR238 116810
governmentalimmu00conn_Page_120.QC.jpg
AR239 46811
governmentalimmu00conn_Page_120thm.jpg
AR240 107649
governmentalimmu00conn_Page_121.QC.jpg
AR241 45560
governmentalimmu00conn_Page_121thm.jpg
AR242 111944
governmentalimmu00conn_Page_122.QC.jpg
AR243 45692
governmentalimmu00conn_Page_122thm.jpg
AR244 100265
governmentalimmu00conn_Page_123.QC.jpg
AR245 42566
governmentalimmu00conn_Page_123thm.jpg
AR246 98846
governmentalimmu00conn_Page_124.QC.jpg
AR247 45484
governmentalimmu00conn_Page_124thm.jpg
AR248 123206
governmentalimmu00conn_Page_125.QC.jpg
AR249 47619
governmentalimmu00conn_Page_125thm.jpg
AR250 102430
governmentalimmu00conn_Page_126.QC.jpg
AR251 42503
governmentalimmu00conn_Page_126thm.jpg
AR252 108184
governmentalimmu00conn_Page_127.QC.jpg
AR253 43410
governmentalimmu00conn_Page_127thm.jpg
AR254 109329
governmentalimmu00conn_Page_128.QC.jpg
AR255 45227
governmentalimmu00conn_Page_128thm.jpg
AR256 132561
governmentalimmu00conn_Page_129.QC.jpg
AR257 48291
governmentalimmu00conn_Page_129thm.jpg
AR258 117894
governmentalimmu00conn_Page_130.QC.jpg
AR259 45951
governmentalimmu00conn_Page_130thm.jpg
AR260 117169
governmentalimmu00conn_Page_131.QC.jpg
AR261 46488
governmentalimmu00conn_Page_131thm.jpg
AR262 108115
governmentalimmu00conn_Page_132.QC.jpg
AR263 43750
governmentalimmu00conn_Page_132thm.jpg
AR264 118804
governmentalimmu00conn_Page_133.QC.jpg
AR265 46951
governmentalimmu00conn_Page_133thm.jpg
AR266 99964
governmentalimmu00conn_Page_134.QC.jpg
AR267 43180
governmentalimmu00conn_Page_134thm.jpg
AR268 123768
governmentalimmu00conn_Page_135.QC.jpg
AR269 47668
governmentalimmu00conn_Page_135thm.jpg
AR270 114801
governmentalimmu00conn_Page_136.QC.jpg
AR271 47256
governmentalimmu00conn_Page_136thm.jpg
AR272 126928
governmentalimmu00conn_Page_137.QC.jpg
AR273 47832
governmentalimmu00conn_Page_137thm.jpg
AR274 119407
governmentalimmu00conn_Page_138.QC.jpg
AR275 45977
governmentalimmu00conn_Page_138thm.jpg
AR276 83583
governmentalimmu00conn_Page_139.QC.jpg
AR277 28081
governmentalimmu00conn_Page_139thm.jpg
AR278 57167
governmentalimmu00conn_Page_140.QC.jpg
AR279 19938
governmentalimmu00conn_Page_140thm.jpg
AR280 85262
governmentalimmu00conn_Page_141.QC.jpg
AR281 30814
governmentalimmu00conn_Page_141thm.jpg
AR282 82795
governmentalimmu00conn_Page_142.QC.jpg
AR283 28417
governmentalimmu00conn_Page_142thm.jpg
AR284 84268
governmentalimmu00conn_Page_143.QC.jpg
AR285 28815
governmentalimmu00conn_Page_143thm.jpg
AR286 81594
governmentalimmu00conn_Page_144.QC.jpg
AR287 27186
governmentalimmu00conn_Page_144thm.jpg
AR288 28721
governmentalimmu00conn_Page_145.QC.jpg
AR289 12865
governmentalimmu00conn_Page_145thm.jpg
AR290 99510
governmentalimmu00conn_Page_146.QC.jpg
AR291 32907
governmentalimmu00conn_Page_146thm.jpg
AR292 55672
governmentalimmu00conn_Page_147.QC.jpg
AR293 20774
governmentalimmu00conn_Page_147thm.jpg
AR294 75503
governmentalimmu00conn_Page_148.QC.jpg
AR295 26130
governmentalimmu00conn_Page_148thm.jpg
AR296 28648
governmentalimmu00conn_Page_149.QC.jpg
AR297 13538
governmentalimmu00conn_Page_149thm.jpg
AR298 15205
governmentalimmu00conn_Page_150.QC.jpg
AR299 9469
governmentalimmu00conn_Page_150thm.jpg
AR300 186882
UF00098093_00001.mets
METS:structMap STRUCT1 mixed
METS:div DMDID ORDER 0 main
D1 1 Main
P1 Page i
METS:fptr
P2 ii 2
P3 iii 3
P4 iv 4
P5 v 5
P6 vi 6
P7 vii 7
P8 viii 8
P9 9
P10 10
P11 11
P12 12
P13 13
P14 14
P15 15
P16 16
P17 17
P18 18
P19 19
P20 20
P21 21
P22 22
P23 23
P24 24
P25 25
P26 26
P27 27
P28 28
P29 29
P30 30
P31 31
P32 32
P33 33
P34 34
P35 35
P36 36
P37 37
P38 38
P39 39
P40 40
P41 41
P42 42
P43 43
P44 44
P45 45
P46 46
P47 47
P48 48
P49 49
P50 50
P51 51
P52 52
P53 53
P54 54
P55 55
P56 56
P57 57
P58 58
P59 59
P60 60
P61 61
P62 62
P63 63
P64 64
P65 65
P66 66
P67 67
P68 68
P69 69
P70 70
P71 71
P72 72
P73 73
P74 74
P75 75
P76 76
P77 77
P78 78
P79 79
P80 80
P81 81
P82 82
P83 83
P84 84
P85 85
P86 86
P87 87
P88 88
P89 89
P90 90
P91 91
P92 92
P93 93
P94 94
P95 95
P96 96
P97 97
P98 98
P99 99
P100 100
P101 101
P102 102
P103 103
P104 104
P105 105
P106 106
P107 107
P108 108
P109 109
P110 110
P111 111
P112 112
P113 113
P114 114
P115 115
P116 116
P117 117
P118
P119 119
P120 120
P121 121
P122 122
P123 123
P124 124
P125 125
P126 126
P127 127
P128 128
P129 129
P130 130
P131 131
P132 132
P133 133
P134 134
P135 135
P136 136
P137 137
P138 138
P139 139
P140 140
P141 141
P142 142
P143 143
P144 144
P145 145
P146 146
P147 147
P148 148
P149 149
P150 150
METS:behaviorSec VIEWS Options available to the user for viewing this item
METS:behavior VIEW1 STRUCTID Default View
METS:mechanism Viewer JPEGs Procedure xlink:type simple xlink:title JPEG_Viewer()
VIEW2 Alternate
zoomable JPEG2000s JP2_Viewer()
VIEW3
Related image viewer shows thumbnails each Related_Image_Viewer()
INTERFACES Banners or interfaces which resource can appear under
INT1 Interface
UFDC_Interface_Loader



PAGE 1

f;0\/HR.\MENTAL IMMUNITY : LEGAL BASIS AND IMrLICATIONS FOR PUBLIC EDUCATION by EUGENE T. CONNORS A DISSERTATION PRESENTED TO THE GRADUATE COUNCIL OVTHE UNIVERSITY 01r 1.0:1 ! DA JN FARTfAL 1-ULMLl.MENT OF THE REQUIREMENTS FOR THE DEGREE Oh DOCTOR OF PHILOSOPHY UNIVr.kSiTV OlFI.OP^IDA 19 77

PAGE 2

Copyright by Eugene T, Connors 1977

PAGE 3

To Sofie Madelyn Connors Digitized by the Internet Archive in 2010 with funding from University of Florida, George A. Smathers Libraries http://www.archive.org/details/governmentalimmuOOconn

PAGE 4

ACKNOWLEDGMENTS I would like to acknowledge the assistance of tlie following persons and to thank them for all the help and patience which they rendered me in the preparation of this dissertation, Dr. Kern Alexander, my advisor and committee chairman, for his sincere and helpful guidance and assistance throughout this entire project. Dr. John M. Nickens, a member of rny dissertation committee, for his time and suggestions in helping iiie to complete this project. Dr. V/illiam B. Ware, a member of my dissertation committee and minor advisor, for his sincere interest in this project and for all the encouragement and help he rendered me in this project. Dr. Leland L. Zimmerman, a mem.ber of my dissertation cOiiimittce and minor advisor, for his support in this endeavor. And last in mention, but first in mind, my wife, Ms. Lel:i B. Connors, for lier patience and understanding v/in le I I , o 1 k d o n t h i s p r o j e c t .

PAGE 5

TABLE OF CONTENTS Page ACKNOWLEDGMENTS iv ABSTFL\C;T vii CHAPTER I , Introduction , 1 Purpose of the Study 2 Delimitations of the Study 3 Definition of Terms 3 Justification of the Study 6 Procedures and Sources of Data 7 Organization of the Study 9 II. HISTORICAL ANALYSIS OF MEDIEVAL AND ENGLISH SOVEREIGN IMMUNITY 10 Review of the Literature 10 Historical Development 11 Movement from Common Law to Statutory Law Status 12 English Law Heritage 13 Roman Law 1 '^ The Dualistic Nature of Roman Law 16 Canon and Ecclesiastical Law 19 The Feudal System 2 2 Unification of the English Legal System. 24 William Blackstone's ContributJon 32 England's Alirogation of Immunity........ 33 Summary ^^^ III. DEVELOPMENT AND EVOLUTION OF COVERN'flENTAL IMMUNITY IN THE UNITED STAGES 40 fletliod of Transmission '^1

PAGE 6

Page The Federal Government and Immunity 45 The Individual States and Governmental Immunity 51 Early Immunity Cases in the States. 53 Abrogation of Immunity by the States 63 Summary 7 7 IV, IMPLIC'XTIONS OF THE GOVERNMENTAL IM>iUNITy PRINCIPLE TO EDUCATION IN THE UNITED STATES 79 Early Case Law 80 Court Ordered Abrogation in Education Cases. . 83 Application to Education: Political and Fiscal 83 Summary 8 7 V. CONCLUSION 88 Origination 88 Development in England 89 Transmission of the Principle 89 Evolution in the United States 90 Application of the Governmental Immuaity Principle to Education 92 Recommendations 93 APPENDIX 1 STATE DECISIONS LIMITING GOVERNMENTAL IMMUNITY 9 5 APPl-NiJlX 2 STATE LIABILITY LEGISLATION IHO APPENDIX 3 STATUS OP GOVERNMENTAL IMMUNITY IN ItlL UNITED STATES . . 105 BIBLIOGRAPHY ' 133 BIOGRAPHICAL SKEFCH I3S

PAGE 7

ABSTRACT OF A DISSERTATION PRESENTED TO THE GRADUATE COUNCIL OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY GOVERNMENTAL IMMUNITY: LEGAL BASIS AND IMPLICATIONS FOR PUBLIC EDUCATION by EUGENE T. CONNORS December, 1977 Chairman: Dr. Kern Alexander Major Department: Education Administration This study had three purposes: First, it traced the historical development of the concept of sovereign immunity in the English common law system. Second, it sought to determine the means by wliich the concept of sovereign immunity from liability became ingrained in the American legal system. Third, it identified the trends and movements in the governmental immunity concept on the United States' public school in 1977. Governmental immunity had its origin in the Middle Ages Vv'here the feudal system and Canon law merged together, thus creating the concept of "The King shall do no wrong." This concept flourished and became firmly established in the statutory legal system under the reign of King Henry VIII, Since the American colonies were under the legal jurisdiction of the English Crown, the principle of sovereign

PAGE 8

immunity became an accepted legal principle which was subsequently endorsed by the United States. Governmental immunity, then was inherited from the English legal system. Governmental immunity flourished in the United States until the late 1950 's when a series of court cases brought challenges. In the 1960's, states began a trend of abrogating governmental immunity either by statutory or judicial means. In 1977, a majority of states have abrogated their governmental immunity, at least in part. The effect of this trend of abrogation on public education is great. For centuries, education had enjoyed the protection of governmental immunity since education was a function of the state. Hov\rever, the recent trends in abrogation has left many educational systems liable. In many instances, it was education cases which the courts used in abrogating a state's governmental immunity. Consequently, educators can no longer depend on the principle of governmental immunity for protection against liability suits. The study contains recommendations for educators who may be concerned about tort liability and governmental immunity. A survey of legal precedence, statutes, and attorneys general opinions provide detailed information regarding the current status of governmental immunity in each state. VI 11

PAGE 9

CHAPTER 1 INTRODUCTION Governmental immunity has been an established principle in the United States' system since 1798. The principle of governmental immunity is where governments and their agencies are immune from liability suits. This principle is believed to have been part of the legal system 2 whicli tlie United States inherited from England. All levels of United States' government (local, state, and federal) have endorsed and embraced the concept that governments are immune from tortious acts. In the late 1950's, an era began in which the entire concept of immunity was vigorously attacked on several fronts. Victims who sustained injury and damages as a result of tortious acts by the state maintained that the state should absorb the cost of this injury ratlier than make the individual bear the burden. Some authorities questioned the use of public funds in acquiring liability insurance rather than simply paying Date of ratification of the Eleventh Amendment to the United States Constitution. The inclusion of this amendment initiated the statutory use of the governmental immunity concept in the United States . ^C. E. JACOBS, THE ELEVENTH AMENDMENT AND SOVEREIGN IMMUNITY (1972).

PAGE 10

the damages. Historical criticism questions the entire foundation on which the sovereign (governmental) immunity principle is based. In 1959, however, an Illinois court stripped away the immunity from liability wliich a school district had previously enjoyed. As a result of this decision and of increasingly strong criticisms, governmental immunity has undergone several changes. Between 1959 and 1976, several states voluntarily abrogated immunity either partially or completely. Other states have had this privilege terminated 7 for them by state and/or federal courts. Purpose of the Study This study had three purposes: First, it traced the historical development of the concept of sovereign immunity in the English common law system. Second, it sought to determine the means by which the concept of sovereign immunity from liability became ingrained in the American legal system. 3 Molitor V. Kaneland C ommuni ty Unit District No. 502 18 IllT"2irTl, 163 N.E. 2d 89 (l"9S9l . /] Supra note 3. Id note 3. ^Mew York (1959), Iowa (1967), Nebraska (1969), Florida (1969), and Colorado (1970). ''Massachusetts (1869), Washington (1907), New York (1907), California (1928), Illinois (1959), Michigan (1961), Wisconsin (1962), and Arizona (1963).

PAGE 11

Third, it identified the trends and movements in the governmental immunity concept on the United States' public school in 1977. Delimitations of the Study This study will be delimited to an examination of the United States and British common and statutory law in relation to governmental immunity as well as how the concept was utilized during the Middle Ages. The focus of this study will be on public education at all levels with special emphasis on the kindergarten through tv;elfth grade levels. Definition of Terms The following terms and their definitions will be used throughout this study. Adequate understanding of this study requires a knowledge of the definition of these terms. They are provided to help eliminate any misunderstandings which might arise as a result of semantic variations: Abrogation of immunity . The term, as used herein, is the destruction or annulling of immunity by an act of the legislative power, by constitutional authority, or by 8 usage. Canon law . Law enacted and enforced by the Roman Catholic Church before the Reformation and by any state ^11. C. BLACK, BLACK'S LAW DICTIONARY 21 (1968)

PAGE 12

recognised church after the Reformation. Sir William Blackstone describes canon law as: . . . a body of Roman ecclesiastical law, relative to such matters, over which that church professed to have proper jurisdiction. It is compiled from the opinions of the ancient Latin fathers, the decrees of general councils and the decretal epistles ar^d bulls of the Moly See. Civil law . Civil Law is that la\v enacted or created by various governmental bodies such as congresses, general assemblies, or administrative agencies. Common Law . Law which derives its authority from previous uses of customs. Court decisions (case law) are co'iTimon law since they set precedents on which other court decisions may be based. Blackstone's narrative on common law provides more insight. The ancient collection of unwritten maxims and customs called the common law, had subsisted immemorially in this kingdom (England) . . . the people were attached to it, because its decisioris were universally known. 10 Constitutional law . That law v/hich is derived 11 from the constitution of a particular state. Governmental immunity . A term, the meaning of which has evolved considerably over the three hundred years. ^WILLIAM BLACKSTONE, COMMENTARIES OF THE LAWS OF ENGLAND 2 3 (189 7) . ^'^Supja. note 9 at 4 . ^^ Supra note 8 at 385.

PAGE 13

12 In its original sense, it meant immunity from taxation. In the last two centuries, }io\/ever, the phrase has come to mean "immunity from liability" (see sovereign immunity). Liability . "The word is a broad legal term and has been referred to as of the most comprehensive significance, including almost every character of hazard of 1 3 responsibility, absolute, contingent, or likely." ' Or, the "condition of being responsible for a possible or actual loss, penalty, evil, expense, or burden." Sovereign immunity . Originally embodied the concept of "governmental immunity." This phrase originated in Seventeenth Century England where the King or Queen declared that their sovereignty made them immune from prosecution or suit. Sovereign prerogative . Predecessor of the "sovereign immunity" concept. According to Blackstone, "sovereign prerogative" can be divided into two divisions; first, and most important, was the prerogative of property rights. ^^ Supra note 8 at 82 6. ^•^Id note 8 at 720-721. "*First National Bank v. National Surety Co . 228 N.Y, 469, 127 N.E. 478. ^^D. L. KEIR ^ F. H. LAWSON, CASES IN CONSTITUTIONAL LAW 74 (1967) .

PAGE 14

Among these medieval (feudal) rights, the concept of "immunity" is embedded. The second division of prerogative is a vague category which can bo labeled as "inherited powers." The monarchs ivere able to inherit the concept of "The King can do no wrong" from their feudal predecessors as a part of their inherited powers. Statutory law . Law relating to or created by an 17 act of the legislative branch of government. Tort . "A private or civil v/rong or injury. A wrong independent of contract." Tortious act . An act done by some person which leads to a tort. Justification of the Study There are two general justifications for this study and four specific justifications which coincide with the three purposes of the study which are as follows: First, the study traces the development of sovereign immunity in the English common law system. Second, it determines the means by which sovereign immunity transferred into the American legal system. And third, it identifies trends and movements in governmental immunity in the United States' public schools in 197 7. -•-^Supra note 9 at 239. •^^ Supra note 8 at 1581 ^^Id note 8 at 1660.

PAGE 15

The major justification for this study is its advancement of knowledge concerning the governmental immunity concept. It is important from a historical and legal perspective that the issues concerning these three major issues be resolved. Significant court decisions have relied heavily on the lack of knowledge in the area of immunity. Therefore, a more secure knovvledge base should be found providing a better basis for sound judicial adjudication, A second general justification is that this study will offer solutions to the practical problems which educational administrators face concerning the issues of governmental immunity. Public school administrators who understand the development and/or historical traditions of the governmental immunity concept possess a better basis to view trends and m.ovements in governmental immunity and, therefore, are able to offer wiser leadership through their kno'v/ledge. Procedures and Sources of Data Since this study is essentially a legal-historical exanr'-ii.ation of qoverninental immunit)', there are two primary steps in the research process. The first step is to locate and collect all pertinent data relating to the topic; ;ind the second step is to 1 , . " ->'-lP215_ note J> .

PAGE 16

interpret these data in relationship to the purposes o£ the study which were presented earlier. Location and collection o£ data will be done bysearching all relevant United States' Supreme Court, circuit courts o£ appeals' and district courts' cases as well as selected state court rulings. Other pertinent information contained in works of history and/or political science was also be used. Location of relevant data from British sources will consist of searching British court decisions, statutes, and related historical and political science works . In locating these data, such legal materials as The A m erican Digest System , The Dicennial Digest , and specific state indexes will be used to find specific cases relevant to this study. These cases will then be located in various reporters as the United States Reports , The Federal Reporter , The Federa ] Supplement , regional and state reporters. Peripheral information regarding the topic of this study v;ill be obtained from other legal encyclopediac sources as American L aw Reports , Corpus Juris Secundum , American J urispruden ce , and various law journals. All data will be scrutinized regarding their relevance, impact, and implications and reported in the Research Report.

PAGE 17

Organization of the Study The study is organized in the following manner: Chapter 2: Historical analysis of Medieval and British sovereign immunity. Chapter 3: Development and Evolution of Governmental immunity in the United States . Chapter 4: Im.plications of the governmental immunity principle to education in the United States. Chapter 5: Conclusion.

PAGE 18

CHAPTER 2 HISTORICAL ANALYSIS OF MEDIEVAL AND ENGLISH SOVEREIGN IMMUNITY Since several United States' courts have attacked the concept of sovereign immunity because "the whole doctrine o£ governmental (sovereign) immunity from liability from tort rests upon a rotten foundation," it is necessary to examine this foundation and to analyze its historical impact on modern-day usage of sovereign immunity."' Review of the Literature The term "governmental immunity" represents an evolution of the term "sovereign immunity." Vv'hen the United States declared independence in 1776, American governments absorbed the duties and responsibilities of the previous colonial governments whicli were authorized and sanctioned 21 by the English Crown. During the pre-revolutionary war period, the state was immune from suits of tort liability, because it was held that the state was an extension of the sovereign crown-hence the name "sovereign immunity." The founders of the new American nation, however, in their attempt to eliminate all references to Supra note 3. ^'^Dartmouth Colle ge v. Woodwa rd 4 Wheaton 517 (1819). J_n_

PAGE 19

11 "kingship," and "sovereignty" adopted this principle of immunity from suit, but changed its name to "governmental immunity." It was felt that the sovereign was replaced by a government; and since the principle was still applicable, the name change was justified. Historical Development The origination of the governmental immunity concept is uncertain. Scholars present various theories regarding its inception. Literature relevant to this discussion reveals two major theories concerning the origination of goArernmental im.munity. The most popular school of thought is represented by the English scholar Bracton and his successors Maitland and Pollock, who suggested that many coinmon law concepts 22 evolved during the dark. ages. One common law custom esr.ablished during this period was that the lord of the fief was also the law-maker and judge of the fief. Since this arrangement placed the lord (for all practical purposes) above the law, a type of common law im.munity from suit was developed. The only person who could hold a lord legally responsible for his actions ivas the superior power tliat gave "BRACTON, TRACTATUS DE .LEG I BUS (ed. F. W. Maitland) 107-108 (1887) and 2 F. POLLOCK 5 F. W. MAITLAND, THE m STORY OF ENGL I SH LAV/ 12 4-215 ( 1 9 G 8 ) .

PAGE 20

12 23 him his fief--the king. '['lie king, in turn, was immune 2 •'' from suit as a result of his sov^ereignty . ^"^ Another point of view is expounded by the English Law historian Blackstone, and later by Keir and Lawson. This school of thouglit maintains that sovereign immunity was a royal "advantage" of one of tlie king's two prerogatives. The chief among his advantages in litigation was that he could not be made defendant to an action at law; this was hardly a prerogative in the earlier Middle Ages since it was shared by other lords, being merely an application of the feudal rule that a lord cannot be sued in his own court. It later came quite correctly to be regarded as a prerogative; for when the King's courts had become national courts and absorbed the greater part of the legal business of the country, the King's immunity^ceased to have any real connection with feudalism. ^^ Blackstone maintains that the King's prerogatives were the only legal basis for his authority. Therefore, there appears to be a controversy regarding initiation of the immunity concept. Movement from Common Law to Statutory Law Status Even though governmental immunity is a legal principle which has existed in statute for hundreds of years, no major research has been conducted regarding its 27 movement from common law to statutory law status. Bracton, ^•^ Supra note 15 (BRACTON) at 107 ^^Id. note 15 at 109. ^^I_d note 15 at 107. ^^ Supra note 9 at 74. 27 Supra note 22.

PAGE 21

13 Maitland, Pollock, " and Jacobs' arc soTne of the scholars wlio have identified a type of i^overninental inmunity whicli existed in common law during the Middle Ages. Blackstone, Keir, and Lawson are representative of those scholars who have identified the concept in a quasistatutory law status. By quasi-statutory law status, it is meant the concept possessed a solid and firm foundation in the King's prerogative but had not been placed into civil statute. Jones maintains that the status of governmental immunity was changed from common law to statutory law in 1532 and 1533 by two acts of Henry VIII. He does not, however, offer any explanation regarding the events which lead to this historical change in legal principle. English Law Heritage English statutory law and common law has a long and complex history. In its simplest form, English law is comprised of Roman civil law (both statutory and common) , ^^F. POLLOCK 5 F. W. MAITLAND, THE HISTORY OF ENGLISH LAW (1923) 29 Id note 28. Supra note 2 . ^-^Supra note 15 at 18.

PAGE 22

14 ecclesiastical or canon common law, feudal common law, European common law [especially I'rcnch and Norman), and its own Anglo-Saxon law. The influence of each of these laws will be examined in terms of the contribution to the English system of law which is able to endorse the concept of sovereign immunity, and the contribution concerning the evolution of the sovereign immunity doctrine. Roman Law Roman law played an important role in determining the foundation of English law and was able to influence the form of English law by two primary paths . Since Roman law consisted of both statutory and common law,'' each of these elements had a unique impact on the deA/elopment of the English legal system and its system's ability to so easily adopt the principle of sovereign immunity. The primary path of influence results from the fact that England was occupied by the Roman empire until 410 A.D. and, consequently, was subject to its statutory laws. Even though the Romans left England early in the Fifth Century, the influence of Roman law continued and eventually influenced (to a certain degree) Anglo-Saxon law. 32 Supra note 9 at 17-19. ^^HENRY S. MAINE, ANCIENT LAW at 52 (1930)

PAGE 23

IS Even though many scliolars maintain that "when the 34 Romans left Britain, his l;iw departed v/ith him." Percy Winfield claims that the Roman influence continued: Nor is it credible that Rome, of all empires, should have ruled any dominion for three and a half centuries without making her subjects familiar with some of the principles of law that backed her government .... Grants of land to private individuals, unclogged by the native "folkright." can be linked up to Roman conceptions of ownership. ^^ Therefore, English law has a direct historical connection with the Roman statutory law system. There is another means by which Roman statutory law helped to influence English law. Early during the Twelfth Century, a revival of Roman law was begun in continental Europe. This revival was quickly spread to England where conflicting reports show Roman law (on one hand) endorsed by English lawmakers' or (on the other hand) •7 n opposed due to ecclesiastical matters.'' In any event, there was a new move towards reviving Roman law in England, and its influence is bound to exist. A more detailed discussion of the extent of this influence will be discussed later in th.is chapter. •^"^PERCY WINFIELD, THE CHIEF SOQRCE OF ENGLISH LEGAL HISTORY 5 5 (19 2 5) . 35 Supra note 34 . Supra note 33. ^"^ Supra note 28 at 122-135.

PAGE 24

16 A second primary iiicmus of influence also had two paths. First, and contrary to most beliefs, Roman law possessed a type of common law wlilch directly influenced ecclesiastical law. Ecclesiastical law, in turn, had a direct influence on English law as well as having strong influence on feudal law. The second path was a feudal system which operated in England for many centuries. Therefore, through the dual paths of ecclesiastical law and feudal law (both of which had their beginnings in Roman common law), Roman common law influenced English law. The Dualistic Nature of Roman Law A superficial examination of Roman law often reveals that Roman law was a civil law, based on statutory or written provisions. While this observation is correct, it is far from com.plete. Roman law, in fact, was comprised of two separate legal elements: The Romans described their legal system as consisting of two ingredients. "All nations," says the Institutional Treatise published under the authority of the Emperor Justinian, "who are ruled by laws and customs, are governed partly by their own particular lavvs, and partly by those la\v's wiiich arc common to all mankind. The law which a people enacts is called the Civil Law of that people, but that which natural reason appoints for all mankind is called the Law of Nations, because all nations use it. "-5° The "Institutional Treatise" which Main refers to is the basis for the statutory laws which governed the Roman Empire ^^Supra note 33 at 53-54

PAGE 25

1.7 It is appropriate at this point to mention that both the English and American legal syv. terns incorporate statutory provisions as part of the overall system of laws. The Roman Statutory provisions consisted of "Twelve Decemviral Tables" which were tablets that contained all Roman civil laivs . These laws were written on these tables and, therefore, were standard throughout the Roman Empire. England was governed by these statutory laws up until 410 A.D. when the Roman occupation ceased. The Roman treatment of torts (law of wrongs) and the English treatment of torts ^ while having similar results, are administered quite differently. The Roman law of torts not only included torts (in the modern sense) but also crimes against an individual since it is the individual that suffers, not the state. Offenses which we are accustomed to regard exclusively as crimes are exclusively treated as torts , and not theft only, but assault and violent robbery, are associated by the jurisconsult with trespass, libel, and slander. All alike gave rise to an Obligation or vinculum juris , and were all requited by a payment of money. This peculiarity, however, is most strongly brought out in the consolidated Laws of the Germanic tribes . Without an exception, they describe an im.mense system of money compensations for homicide, and with few exceptions, as large a scheme of compensation for minor injuries .... a sum was placed on the life of every free m.an, according to his rank, and on his person, for nearly every injury that could be done to his civil rights, honour, or peace; the sum being aggravated according to adventitious circumstances. These compositions are evidently regarded as a valuable source of income; highly complex rules regulate the title to them and the responsibility for them; and, as I have already had occasion to state, they often follow a very peculiar line of devolution, if they have not been acquitted at the decease of

PAGE 26

18 the person to whom they belong. If thei-efore the criterion o£ a delict , vvrojig or tort be that the person who suffers it\ anTrnot tlie State, is conceived to be wrong.::d, it may be asserted that in the infancy of jurisprudence the citi"en depends for protection against violence or fraud_nct on the Ltiw of Crime but on the Law of Tort.29 The Romans, then, obviously treated any wrong (physical or tort) against an individual as a type of statutory tort. The English system, however, deals with torts in a common law fashion which requires judicial procedures. It is interesting to note the similarities of the outcomes. Under both systems, a monetary com.pensation is required to the person who sustained injury. Often, these compensations carry previously determined remedies much like the Roman statutory law. Insurance contracts often spell out exact damages for each type of physical injury in much the same manner as Blackstone in his Commentaries on the Laws of England . While Roman statutory law did exert some influence on English la^^/ and tort actions in England, it was not the primary method. The Roman equivalent of English common law-the law of natureappears to be the primary source of 41 influence. The Roman Law of Nature was a common law. No statutes were written regarding its use or implementation. The primary element of the "law of nature" was "Equity," ^^ Supra note 33 at 392-393 ^"Supra note 9 at 239. 41 , la note :)i at 54.

PAGE 27

19 v,'hich Henry S. Maine describes as "a set of legal principles entitled by their intrinsic •.iijicr j or ity to supersede the 42 older law," Maine contends that much of the law practiced in England by Chancery judges was law derived from Equity. In fact, "the Court of Chancery, . . . bears the name of Equity," adopted many principles of Roman jurisprudence. The Roman law, more fertile than the Canon Law in rules applicable to secular disputes, was not seldom resorted to by a later generation of Chancery judges, amid whose recorded dicta v;e often find entire texts from the Corpus Juris Civil is imbedded, with their terms unaltered, though their origin is never acknowledged. 4=+ Therefore, Roman law (hence its influence on English law) possessed not only statutory law, but also in equity. The statutory law influenced the English legal system through a historical path and a scholarly revival path. Equity influenced English law in a more indirect manner-through Church ecclesiastical law. Canon and Ecclesiastical Law It is necessary to immediately differentiate between canon and ecclesiastical law. Canon law is law which was derived from Roman common law and which, eventually, absorbed civil law in medieval Europe. Ecclesiastical 42 Supra note 33 at 52 ^^Id_ note 33 at 52. 44 Id note 33 at 52.

PAGE 28

20 law, on the other hand, is a law which has a civil law basis, but v\fhere the reigning monarch accepts the merger of Canon law with his civil law. Technically, then, "Ecclesiastical laws (were) issued by the Anglo-Saxon Kings on the advice o£ their bishops, with whom they were closely allied." Canon law began as an internal religious law that not only was not sanctioned by the Roman government, but was persecuted by various Roman emperors until 313 A.D. . Pollock and Maitland report that during this period Roman 46 law "was stricken with sterility." By the time the fall of the Roman Empire was completed, canon law, governed by the Church, was the only operating jurisprudence in Europe. This law, however, was growing so quickly that no standardized format was in existence between European countries or even between bishop's deities . Slowly and by obscure processes a great miass of ecclesiastical law had been forming itself. It rolled, if we may so speak, from country to country and took up new matter into itself as it went, for bishop borrowed from bishop and transcriber from transcriber. Oriental, African, Spanish, Galilean canon were collected into tlie sane book and the decretal letters of later were added to those of earlier popes . ^7 4 5 Supra note 34 at 55. 46 Supra note 3 3 at 3. 4? Id note 3 3 at 16.

PAGE 29

21 It is important to remember that while these various laws were multiplying and increasing in complexity, they were still operating at a common law level. No statutory provisions existed in the canon law until Gregory IX' s decrees in 1230. In the Ninth Century, however, one attempt at consolidation of the legal principles governing canon law prevailed which helps to cast some light on the early development of sovereign immunity. Then out of the depth of the ninth century emerged a book which was to give law to mankind for a long time to come. Its core was the Hispana ; but into it there had been foisted besides other forgeries, some sixty decretals professing to come from the very earliest successors of St. Peter. The compiler called himself Isidorus Mercator. . . . The false decretals are elaborate mosaics made up out of phrases from the Bible, the fathers, genuine canon, genuine decretals, the IVest Goth's Roman law-book; but all these materials, wherever collected, are so arranged as to establish a few great principles: the grandeur and superhuman origin of ecclesiastical power, the sacrosanctity of the persons and the property of bishops, and, though this is not so prominent, the supremacy of the bishop of Rome. ^ Mercator 's work is of major importance to this study. According to Pollock and Maitland, Mercator expresses (wliat tlris researcher finds to be) the first legal reference to the principle of sovereign immunity. Above all, no accusation can be brought against a bishop so long as he is not despoiled of his see: Spo liatus episcopus ante omnia debet restitui . '^^ S upra note 33 at 17 Id note 33 at 17.

PAGE 30

22 Most legal observers have attributed the concept of sovereign immunity to the feudal legal, system. The above reference, however, reveals that the concept was imbedded in the canon law before passing on to the feudal system. During the Ninth Century, canon law's influence on England took tv/o separate paths. First, the Catholic Church, in its attempt to spread Christianity throughout Europe, was preserving and transmitting the canon legal system v\rhich was based on the Roman "law of equity." Since England was one of the many countries converted to Christianity, it (too) began to adopt this legal system in conjunction with its other legal heritages. Therefore, ecclesiastical law was being created in England through the merger of the operatiiig civil law system and the Church's canon law. As noted previously, the Canon law possessed an element of immunity from tort which would also become merged with the new English Ecclesiastical law. The second path of transmission is the method by which canon lav\f influenced the feudal system v.fhich provided the legal basis for English law. The Feudal System While the feudal system existed in northern Europe before the fall of the Roman Empire, it did not become Supra note 33 at 17,

PAGE 31

prevalent until around 800. '^ Prior to this time, civil laws either did not exist or were ignored. It was inevitable, hoivever, that the canon law systein and the feudal system would influence each other and, eventually, merge. The Church found it useful to endorse certain feudal lords who would in return for this endorsement, spread and support the dogma of the Church. It is believed by many that the feudal system has been the vehicle \vhich transported the principle of sovereign immunity into statutory law. This system consisted of a hierarchy of lords solely responsible to a single king (of a country). Each lord derived his power from the king's sanction; and the king derived his power from the collective power of his lords who supported him maintained the king in his position of power. Under the "divine right of kings" concept, the king claimed sovereignty over his kingdom because he was sanctioned by God and acted as God's regent on earth. He claimed that he derived his power from God and that only God could take it away. Since each lord was, in essence, a little king of his fief, his powers over the people and activities of }iis fj.ef were aliaost unrestricted. One custom that was established during this period was that the lord of the fief v;as also the law-maker and judge of the fief. Since this arrangement places the lord (for all practical purposes) above tlie law. '"Supra note 9 at 185,

PAGE 32

24 a type of common law immunity from suit was developed. The only person who could hold a lord legally responsible for his actions was the superior power that gave him his fief-the King . Therefore, sovereign immunity was a common law principle which evolved from two sources. First, the canon law of the Church endorses this concept as mentioned earlier in Mercator's work. Second, the concept developed as a common law principle that grew out of the feudal system (which was also influenced by canon law) . Unification of the English Legal System English law, as we know it today, began to evolve shortly after the Norman Conquest in 1066. The Norman Conquest caused a consolidation of all the influences on English law to take place. The feudal system, the Church canon law, and the historical heritage of Roman civil law all merged into a common law system. In 1100, Henry I became the first king of England v.'hose authority extended over all of what is known as modern day England. In uniting England, Henry I took two actions which would affect his successors. First, he was able to have himself recognized by all the English people as Sovereign of England (which technically, he inherited from 52 Supra note 22 . ^^Supra note 33 at 4-5.

PAGE 33

25 Rufus William the Conqueror's son). This sovereigntyentitled him as the lawgiver, law-maker, and supreme judge of the realm. It also made him immune from suit. Second, he estahlished the beginnings of a judicial system. In this 54 judicial system, "the King sat in person in Curia regis ." Because the king held court in different locations during the year, suitors were required to follow the king in order to pursue whatever legal actions they were seeking. To compensate for this problem, Henry divided the court into tv.'o systems, one would continue to follow the king and maintain the legal concept of Curia regis ; the other court was permanently based in Westminister and became known as the Exchequer . Henry II assumed the English throne in 1154 and made great progress in the formation of an equitable and just judicial system. Under him, the Exchequer became known as the Bench. However, a struggle began between Henry II and Rome concerning which set of legal laws were to prevail in the English civil courts-the English civil laws or the Roman canon lai«-? . Henry II 's attempt to check the power of tlie clergy lead to the fatal dispute with Archbishop Becket of Canterbury. Pollock and Maitland report that Henry was ^"^1 W. HOLDSWORTH, A HISTORY OF ENGLISH LAW 23 (1959) Supra note 34 at 131. '''^^Supra note 9 at 739.

PAGE 34

26 so angered by his power being usurped by Roine, that he made assurances that civil law and the king's sovereignty would prevail in future legal contests. During the first half of the twelfth century the claims of the church were growing, and the duty of asserting them passed into the hands of men who were not mere tlieologians but expert laxvyers. Then, as all knov\r, became the quarrel between Henry and Backet. In the Constitutions of Clarendon (1164) the king offered to the prelates a written treaty, a treaty which, so he said, embodied the 'customs' of his ancestors, more especially of his grandfather. Becket, after some hesitation, rejected the constitutions. The dispute got hot; certain of the customs were condemned by the Pope. The murder followed, and then Henry was compelled to renounce, though in carefully guarded terms, all his innovations. But his own assertion all along had been that he was no innovator; and though the honours and dishonours of the famous contest may be divided, the king was left in possession of the greater part of the field of battle. At two points lie had been beaten: --the clerk suspected of felony could not be sentenced by, though he might be accused before, a lay court; appeals to Rome could not be prohibited, though in practice the king could, when he chose, do much to impede them. Elsewhere Henry had maintained his ground, and from his time onwards the lay courts, rather than the spiritual, are the aggressors and the victors in almost every contest.-^ This incident is indicative of the type of sovereignty which English monarchs possessed during this period. Immunity evolved from tiiis sovereignty in civil matters, but the king still had to answer to Rome's canon law. Canon law was still the dominant law until Henry Ill's [1216) and Edward I's (1272) reigns. It was during their reigns that the split in Supra note 33 at 122-123.

PAGE 35

canon law and English civil law became severe enough to be r o labeled as a separation. Under Edward I's reign, three courts emerged which were the early basis for today's English Courts-The Common Bench, The King's Bench , and King in Council . " Along with the judicial structure being stabilized and formalized, the concept of immunity was set as a common law doctrine. At least as early as the Thirteenth Century, during the reign of Henry III (1216-1272), it was recognized that the king could not be sued in his own courts, but this immunity did not imply that the sovereign was above the law. To the contrary, the king was regarded as the fountain of justice and, as such, bound by law and conscience to redress wrongs done to his subjects. This conception appears to account for the initial development of remedies against the ruling sovereign as these began to take shape during the reign of Edward I (12721307) . ^0 Therefore, the doctrine of sovereign immunity began to blossom forth under the reign of Henry III and Edward IV. Initially, this sovereign immunity did not apply the maxim "The King can do no wrong" but rather endorsed the maxim "The King is the fountain of justice." This difference is important. Under this initial type of sovereign immunity, the king cannot be sued but is duty bound to abide by his own laws. Sovereign immunity under the reign of Henry Vili is quite dlEferenc. S8 ' Supra note 9 at 739. ^'id. note 9 at 151. '? upra note 30 at .> . ''^38 AM. JUR. , MUN. CORPS., 3 5 73, 266 f 7 SLipj;H note 33 at S .

PAGE 36

28 There were few major developments concerning the law and sovereign immunity until the rise of the Tudors in the Fifteenth Century. The struggle of the Tudors line concerning the law, immunity, and the Holy Roman Empire seems to be exemplified by the reign of Henry VIII. It was during his reign that immunity from prosecution and suit moved from common law status to statutory law status. Keir and Lawson, when spealcing of Henry's prerogatives, are quick to point out. The chief among his advantages in litigation was that he could not be made defendant to an action at law; this was hardly a prerogative in the earlier Middle Ages since it was shared by other lords, being merely an application of the feudal rule that a lord cannot be sued in his own court. It later came quite correctly to be regarded as a prerogative; for when the King's courts had become national courts and absorbed the greater part of the legal business of the country, the King's immunity ceased to have any real connection with feudalism."^ The other prerogative was inherited from "the medieval lawyers (who) had held the view that the law uas a bridle on the King, and in their famous maxim, 'The King can do no wrong,' they had insisted that his power extended to do only . , , . ,,65 wnat IS right.' Henry VIII had decided to choose another wife but was opposed by the Pope who still claimed sovereignty (even over kings). Henry had, as a part of his royal prerogatives Supra note 9 at 74. ^'^Id note 9 at 259. ^^''GARBTH JONES, THE SOVE.REICNTY OF THE LAW 93 (1973)

PAGE 37

29 first, immunity from prosecution; second, supposedly the "Divine Right of Kings" concept; and third, the fact that the "King can do no wrong." His solution was simple. He declared first, that he was given his power from God and God alone (Divine Right of Kings) ; second, that he was immune from all suits; because third, he was sovereign and not under the authority of anyone, including the Bishop of Rome. His realm is declared to an empire , and his crown imperial , by many acts of parliament, particularly the statutes 24 Henry VIII. c. 12. (1532) and 25 Henry VIII. c. 28. (1533); which at the same time declare the king to be the supreme head of the realm in matters both civil and ecclesiastical, and of consequence inferior to no man upon earth, dependent on no man, accountable to no man . . . Hence it is, that no suit or action can be brought against the king, even in civil matters, because no court can have jurisdiction over him. For all jurisdiction implies superiority of power: Authority to try would be vain and idle, without an authority to redress; and the sentence of a court would be contemptible unless that court had power to command the execution of it: but who, says Finch, shall command the king? Hence it is likewise, that by law the person in his reign be completely tyrannical and arbitrary: for no jurisdiction upon earth has power to try him in a criminal way; much less to condemn him to punishment . "° It was at this point, then, that the feudal concept of "The King ccm do no wrong" and "Sovereign Immunity" (v/hich were com.mon law based) were combined with the civil law. This produced the general concept of Sovereign Immunity which has been transported to America in the form of "Governmental Immunity from Liability." ^^^Supra note 65 at 94-95,

PAGE 38

30 It is ironic that the Roman Catholic Church and Canon law, which were one of the primary influences on the establishment of the common law doctrine of sovereign immunity, was also the primary cause of tlie principle movement from common law status to statutory law status. Also imbedded in the many acts of Henry VIII which declared him sovereign of all England and free from interference from Rome was the statutory establishment of the "divine right of Kings" concept. . . . for where this yovrr Grace's Realm recognifing no Superior under God, but only your Grace, hath been and is free from Subjection to any Man's Laws, but only to fuch as have been devifed, made and obtained within this Realm, for the Wealth of the fame, or to fuch other as by Sufferance of your Grace and your Progenitors, the People of this your Realm have taken at their free Liberty, by their own Confent to be ufed amongft them, and have bound themfelves by long Ufe and Cuftom to the Obfervance of the fame, not as to the Obfervance of Laws of any foreign Prince, Potentate or Prelate, but as to the cuftomed and ancient Laws of this Realm, originally eftablifhed as Laws of the fame, by the faid Sufferance, Confents and Cuftom, and none otherwife: (4) It ftandeth therefore with natural Equity and good Reafon, that in all and every fuch Laws human made within this Realm, or induced into this Realm by the faid Sufferance, Confents and Cuftom, your Royal Majefty, and your Lords Spiritual and Temporal, and Commons, reprefenting the wliole State of your Realm, in tliis your moft high Court of Parliament, have full Power and Authority, not only to difpenfe, but alfo to authorize fome elect Perfon or Perfons to difpenfe with thofe, and all other human Laws of this your Realm, and with every one of the, as the Quality of the Perfons and Matter fhall require; (5) and alfo the faid Laws, and every of them, to abrogate, annul, amplify or diminifh, as it shall befeen unto your Majefty, and the Nobles and Commons of your Realm prefent in your Parliament meet and convenient for the Wealth of your Realm, as by divers good and wholfome Acts of Parliaments

PAGE 39

31 made and eftablifhed as well in your Time, as in the Time o£ your moft noble Progenitors, it may plainly and evidently appear. ^7 Henry YIII was also astute enough to insure that from that time (1532) on, all subjects of England, including the 68 clergy, were subject to the lavs's of England. This move helped to assure Henry of total sovereignty from Rome and Canon law. There appears to be no case law defending Henry VIII 's position on sovereign immunity. However, one of his successors, James I, called upon this prerogative in 160 7 when suit v^?as brought against him for causing damage to a subjects property xvhile digging for saltpetre (an ingredient used in 69 the manufacture of gunpowder) . The English court ruled that the statute III Henry VIII, CXV made the King immune from suit and that the individual must incur the damages. as, for saving of a city or town, a house shall be plucked down if the next be on fire: and the suburbs of a city in time of war for the coimnon safety shall be plucked down; and a thing for the commonwealth every man m.ay do without being liable to an action, as it is said in III Henry VIII, CXV. And in tliis case the rule is true, Princeps et respublica ex justa causa possunt rem m.eam auferre.'*^ ^^XXV HENRY VIII, C. XXI ^^XXIV HENRY VIII, C. XII e, C. XIX. 69 The Case of the King's Prerogative in Saltpetre , 12 Co. Rep. 12 (1607) . Su pra note 69 .

PAGE 40

32 The decision in this 1607 case, reaffirms that sovereign immunity V'/as placed in statute by Henry VIII and that it made the sovereign immune from all suits. Wi lliam Blackstone's Contribution In 1758, the famed English law historian and scholar, William Blackstone, wrote his famed, An Analysis of the Laws of England which documented the evolution of sovereign immunity into what had come to be knoivn as "the King's 71 prerogatives."' Blackstone defines this prerogative as follows : Prerogative is that fpecial Pov/er and preeminence, which the King hath above other Perf ons , and out of the ordinary Courfe of Law, in right of his regal Dignity. '^ Regarding the king's role in English justice, Blackstone wrote : The King is alfo the Fountain of Juftice, and general Confervator of the Peace; and therefore may erect Courts, profecute Offenders, pardon Crimes, and iffue Proclamations . ^^ Blackstone's contribution to the formalization of the sovereign immunity concept is important to this study since it will be pointed out (in tlie succeeding chapter) that many courts relied on Blackstone's reporting of this principle in their dicta which subsequently established the concept in American law. ^^1 W. BLACKSTONE, AN ANALYSIS OF THE LAWS OF ENGLAND (1758) . 72 Supra note 71 at 7 5 ^^'Id note 71 at 18.

PAGE 41

33 England's Abrogation of ImmunLty The doctrine of sovereign immunity became so firmly entrenclied into the English legal system, that it was not until late in the Nineteenth Century that the English Parliament and courts began to seriously challenge the concept . In 1860, Parliament passed into law "Tlie Petitions of Right Act, 1860" which formalized the procedure of 74 petitioning the crown to bring suit against the crown. While this right had al\%'ays existed in English law, Holdsv;orth reports that few, if any, subjects had ever taken advantage of this right because of the intricate legal 7 S procedures. The Petitions of Right Act, 1860 outlined a fifteen step procedure to petition the crown for permission to sue the crown. It established a time period of twentyeight days for the reigning monarch to either accept or reject such a petition as well as designating "any One of the Superior Courts of Common Law of Equity at Westminister " as having jurisdiction over such suils. However, The Petitions of Right Act, 1860 did not authorize suits against the crown for torts. ^"^23 VICTORIA I, C34 (1860). ''^6 HOLDSWORTH, THE HISTORY OF ENGLISH LAW 266 (1956) 76 Supra note 71.

PAGE 42

34 The remedy was available for the recovery of property, whether land or goods, for breach of contract and indeed, it would seem, in every case where the suppliant would have had an action against a subject with the single exception of tort. The exception covered not merely cases where it was alleged that the King himself had committed a tort but also cases where, had he been a subject, he would have been vicariously liable for the torts of his servants. This meant that Petition of Right could not be used as a remedy for any torts committed by anyone in the course of government . ''^ Therefore, the Petitions of Right Act, 1860 did not really abrogate sovereign immunity from tortious acts, but rather clarified the petition procedure which had alvsrays been an Englishman's legal right. In 1866, an English court determined that public bodies are responsible for the negligent acts of their 7 8 employees. The court, in Mersey Trustees v. Gibbs and The Same v. Penhallo\sf , ruled that a public entity, like the master-servant relationship, is liable for damages caused by 79 acts of its employees. The decision in this case opened new avenues for liability suits in England. Public entities were no longer protected from suits where damages were caused by official acts of employees. The major case which abrogated the sovereign O Q immunity concept vv'as a public school case in 1890. In ^^ Supra note 15 at 203. ^^Merse y Trustees v. Gibb s, L.R.I H.L.93 (1866) 79 Supra note 78 . ^"^Crisp V. Thomas 63 LINS 756 (1890).

PAGE 43

3 5 this case, a school teacher vv'as being sued for damages because a portable blackboard fell upon and injured a student The student's parents sued for damages claiming teacher negligence. The Queen's Bench Division Court held that the fall of the blackboard was not evidence of negligence, but if there had been negligence, the school or the teacher could be lield liable. Then, if there was negligence, someone must be liable. Fees are paid for the schooling, therefore someone must have duties towards the children. The defendant is the only active member of the committee; he was the master of Rider pro hac vice. (Lord Esher, M.R.--It seems that the defendant could not have forbidden Rider to teach.) The fact of his position being only honorary is of no consequence.'^^ This court decision is quite important to this study because it is the first instance of a court abrogating the sovereign immunity concept whether it be statutory law or common law based. This case also reversed the findings of lower English courts, especially in the case of Russell v. The Men Dwel ling o 2 in the County of Dev on which m.any scholars claim to be the o -z basis of American governmental immunity. It should be noted that the Russell case was later overruled by the English courts, and that in 1890 it was definitely established that in England a school board or school district is subject to suit in tort for peisonal injuries on the same basis as a private I -1 Supra note 80 at 756 ^^'100 ENG. REP. 359 (1788) Q "T Lee 0. Garber, Origin of the Governmental Immuni ty fr om Tort Doctrin e, YEARBOOK OF SCHOOL LAW 235-243 (1964).

PAGE 44

36 individual or corporation. (Crisp v. Thomas , 63 L.T.N. S. 756 (1890).) Nonimmunity has continued to be the law of England to the present day. 84 Follov^/ing this landmark decision by the English courts, many tort liability suits were filed against governmental agencies (especially school systems) . In a great number of cases, most of which involved the personal injuries of a pupil or student resulting from alleged negligence of an educational authority or that of a school official, schoolmaster or teacher, or other school personnel, such authorities have been treated as liable in tort to the same extent as private persons or corporations, although no mention was made therein as to the doctrine of immunity. °^ In 1893, Queen Victoria and the British Parliament 8 6 passed The Public Authorities Protection Act , 1895 where the act attempted to insure certain public officials at least a rudimentry immunity against suit. This act also specified certain provisions which must be followed before a suit against the state could be brought. Following the official passage of this act, the British courts became swamped with education tort suits against school boards.^'' Finally, in 1939, Parliament passed the Limitation Act , 19 59 , s. 51 v/here all sovereign Q O immunity was abolished. Chapman suggests that this may 84 Supra note 5, ^^160 ALR 84 ^^56 VICTORIA I, C. 61 (1895). ^'^ Supra note 85 at 84. ^^S. CHAPMAN, STATUTES ON THE LAW OF TORTS 459 (1965)

PAGE 45

37 have been a move to abolish immunity on a statutory level 89 rather than allow? British courts to totally abrogate it. In 1954, the Parliament passed The Law Reform Act , 90 1954 vv'hich removed the restrictions and provisions (set up 91 in 1893 by the P ublic Authorities Protection Act , 1895 ) wliich private individuals needed to meet in order to bring suit against tlie state. This latest act is considered to remove the last obstacle in absolute and total abrogation of sovereign immunity in England. ^^ Supra note 88 at 440. ^^2 ELIZABETH II, c 36 (1954). 91 " Supra note 86 .

PAGE 46

Summary The evolution of the sovereign immunity concept into the English legal system is a complex and vague principle to follow. A combination of feudal influence and Canon law (which was derived from Roman law) supplied the base for the common law evolution of the principle. The Roman civil law supplied the statutory basis for the principal to become imbedded in law. The reigns of Henry II, Henry III, and Edward I allowed the sovereign immunity concept to flourish independent of Canon law. Henry VIII 's dispute with Rome became the vehicle for this monarch's exercise of his sovereignty. Immunity against suit was placed into statutory law as a means to protect the king against the Canon forces of Rome as well as increasing the king's already awesome po^ver. Sovereign immunity was the rule of law until 1890 where a British court abrogated it for school boards and school districts. As a compromise move. Queen Victoria passed the Public Authorities Protection Act , 189 3^ v.'hich partially abrogated immunity while protecting the concept as applied to certajn public officials. Queen Victoria finally abrogated all sovereign immunity in 1939. However, the restrictions and provisions set in 1893 were still in effect Queen Elizabeth passed Th e Law R e form Ac t in 1954 which rerao'/ed tliesc restrictions and, consequently, totally

PAGE 47

39 abrogated all sovereign immunity in England. So, 422 years after Henry VIII had the concept of sovereign immunity placed in statute, and many more years after the development of the common law basis for the concept, England has finally abandoned sovereign immunity as a means of protecting the state against suit.

PAGE 48

CHAPTER 3 DEVELOPMENT AND EVOLUTION OF GOVERNMENTAL IMMUNITY IN THE UNITED STATES Prior to 1776, the American colonies were subject to and governed by the laws and the courts of England. One of the common laws which was maintained in the colonies was the concept of sovereign immunity. A colony could not be sued since the colony was an extension of the English crown and protected by the privilege of sovereign immunity. In 1776, the colonies declared their independence from England. During and following the Revolutionary War, each state assumed governmental control of the state functions which were previously performed by the English crown (and its appropriately appointed ministers and governors). Because the United States is an offspring of England, its governmental, legal, and judicial systems are very similar to those of England. Many of the legal concepts developed and used in England were (and still are) endorsed by our own system of government. England's colonial rule simply gave way to each state's individual governmental rule. The method of governing changed little except to correct for the obvious inequities which caused the split in the first place. 4

PAGE 49

41 One of the specific elements or principles of this legal system v;hich the newly formed state governments inherited and endorsed was the concept of sovereign (governmental) immunity. In England, the state was immune from suit because the state was an extension of the English crown who is 92 immune from suit. Even though it is apparently inconsistent with the principles of a democratic government, the founding fathers of each and every individual state (as well as the federal government) readily accepted this notion. Me thod of Transmission The exact method of transmission of the principle of sovereign immunity in England to governmental immunity in the United States is difficult to locate. As stated previously, the underlying principles of the governmental immunity concept seem inconsistent with the reasoning that lead to the formation of the United States. The sovereignty of the English crown, the privileges of that position, the prerogatives of the kingship, and the unchallengeable arbitrary and capricious acts made by the English crown were the primary reasons for this country's formation. Yet, the leaders of this new republic, readily accepted and endorsed the governmental immunity concept which gave the state (and federal) government sovereignty, which gave the state (and ^^W. L. PROSSER, LAW OF TORTS 9 71, (19 71)

PAGE 50

federal) government one of the privileges and prerogatives that vised to be enjoyed by the English king, and which gave the state (and federal government) the power to act without fear of legal reprisal. Many legal scholars and authorities are at a loss to explain why such a concept v/as allowed to develop jn the United States. William L. Prosser, in his textbook. L aw of Torts, contends : Just how this feudal and monarchistic doctrine ever got itself translated into the law of the new and belligerently democratic republic in America is today a bit hard to understand. ^-^ The National Association of Attorneys General, in their publication, Sovereign Immunity , The Liability of Government and Its Officials , query: The great mystery is hoAv this absolutist, monarchical notion came to be an accepted legal principle in a new democracy like the United States of the early nineteenth century. One can scarcely imagine any idea more antithetical to the basic tenents of democratic government than that which holds that the people, at whose pleasure and for whose benefit the government exists, cannot sue their representatives when they have been wronged by them. •'^ Edwin M. Borchard, in his famed article, "Government Liability in Tort , " states : Tlie jurisdiction of the King's coui'ts was purely personal. How it came to be applied in the United States of America, where the prerogative is unknown huprg note 92 . ^'^SOVEREIGN IMMUNITY: TUB LIABILITY OF GOVERNMENT AND ITS OFFICIALS (published by tlic National Association of Attorneys General) 1 (1975).

PAGE 51

43 is one of the mysterios of legal evolution. Admitting its application to the sovereign and its illogical ascription as an attr.ibut:e o£ sovereignty generally, it is not easy to appreciate its application to the United States, where the location of sovereigntyundivided sovereignty, as orthodox theory demandsis a difficult undertaking . -'-' Alexander and Solomon, in their book. College and University Law J speculate that: It is difficult to comprehend why in the United States, where there was such great fear of tyranny of kings, this doctrine was unquestionably adopted so wholeheartedly. It would have been reasonable to assume that in the absence of sheer oversight by the framers of the constitution, immunity of the government would have been denied or at least carefully circumscribed.^" Pxosser and Wade, in Torts : Cases and Materials , observe that "(t)he explanations for the initial acceptance of this feudal and monarchistic doctrine in the democracy of this 97 country are quite obscure." Mr. Justice Klingbiel of the Supreme Court of Illinois in the famed Mo litor v. Ka neland decision ponders how the concept of governmental immunity survived in the United States since it conflicts with the basic concept of the law of torts . O c; "^"E. Iv. Eorchard, "Government Liability in Tort," 24 YALE LAW JOURNAL 4 (1924). ^^KEIIN ALEXANDER q ERWIN S. SOLOMON, COLLEGE AND UNIVERSITY LAW 649 (1972). ^''w. L. PROSSER AND J. W. WADE, TORTS: CASES AND MATERIALS 1117 (1971) .

PAGE 52

44 It is a basic coiicc[)t uitdcrlying the whole law of torts today tl)Ml liability follows negligence, and that individuals ;iiul corporations are responsible for the negligence of tiicir agents and employees acting in the course o i: their employment. The doctrine of governmental immunity runs directly counter to that basic concept. What reasons, then, are so impelling as to allow a school district, as a quasi-municipal corporation, to commit wrongdoing without any responsibility to its victims, while any individual or private corporation would be called to task in court for such tortious conduct ?5S The Supreme Court of Florida in H argrove v. Town of Cocoa Reach noted that the "divine right of kings" concept which is embodied in governmental immunity was abolished because 99 of the Revolutionary IVar. The court could not understand how the principle had been maintained. And a California court found that: The whole doctrine of governmental immunity from liability for tort rests upon a rotten foundation. It is almost incredible that in this modern age of comparative sociological enlightenment, and in a republic, the medieval absolutism supposed to be implicit in the maxim, 'the King can do no wrong,' should exempt the various branches of the government from liability for their torts, and that the entire burden of damage resulting from the wrongful acts of the government should be imposed upon the single individual who suffers the injury, rather than distributed among the entire community constituting the government, wliere it could be borne without hardship upon any individual, and where it justly belongs . . . Likewise, we agree with the Supreme Court of Florida that in preserving the sovereign immunity theory, courts have overlooked the fact that tlie Revolutionary War was fought to abolish that "divine right of kings" on which the theory is based. -^'^^'^ 98 Supra note 3 at 17. ^^ Barker v. City of Santa Fe 47 N.M. 85, 136 P. 2d 480. •^^^Hargrove v. Town of Cocoa Beach 96 So. 2d 130 (1957)

PAGE 53

In essence, the above authorities, scholars, and courts question why a new nation, whose entire reason for breaking away from its mother country is distaste with the sovereign crown, I'/ould so heartily endorse and accept a concept that "prima facie" appears to contradict that basic premise. The authorities also agree that the exact method of transmitting this immunity concept from England into the United States' legal system is, at best, ambiguous. In order to examine this unique migration and adoptance of the sovereign (governmental) immunity principle, it is necessary to divide this examination into the sam.e divisions as the governments are arranged. Therefore, the balance of this chapter will look at first, governmental immunity in the United States federal government, and second, governmental immunity in the individual states. The Federal Government and Immunity In December 1787, the seventy-four delegates who attended the Constitutional Convention submitted the Constitution of the United States to each state for ratification. One particular article of the Constitution enlightens this study re.c;arding the liability of governments. Article III, section 2, of the United States Constitution reads as follows The judicial Power shall extend to all Cases, in lav/ and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority ;-to ail Cases affecting Ambassadors, other public Ministers and Consuls; --to all Cases of adir.iralty and maritime Jurisdiction; -to Cont^.'oversies to v.'hich the United States shall be a Party; --to Controversies

PAGE 54

46 betv;een two or more Sim tcs ;-between a State and Citizens of another S (a tc ;-between Citizens of different States ;-be i ween Citizens of the same State claiming Lands iiiub.MCiants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subj ects . -'-0-'It is interesting to note that framers of the Constitution were providing a vehicle for citizens of one state to sue in equity anotlier state, and for all "Controversies to which 102 the United States shall be a party" to be settled. A strict interpretation of this article would lead one to believe that the United States government is consenting to being sued. However, in 1788, wlien ratification no longer seemed certain, Alexander Hamilton, James Madison, and John Jay wrote 85 articles defending the Constitution. Paper (article) number 81, written by Hamilton sometime between April 4 and May 28 of 1788, contains a statement regarding sovereign immunity. It is inherent in the nature of sovereignty not to be amenable to the suit of an individual "without its consent." This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States and the danger intimated must be merely ideal. The circumstances which are necessary to produce an alienation of State sovereignty were discussed in considering the article of taxation and need not be repeated here. A recurrence to -•^^U. S. CONSTITUTION, Article III, section 2 ^"^Supra note 101.

PAGE 55

47 the principles there cstablislied will satisfy us that there is no color to pretend that the State governments would, by tlic adoption of that plan, be divested of the privilege of paying their own debts in their own ^vay, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action independent of the sovereign v\fill. To what purpose would it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident that it could not be done without waging war against the contracting State; and to ascribe to the federal courts, by mere implication, and in destruction of a pre-existing right of the State governments, a power which would involve such a consequence, vv'ould be altogether forced and unwarrantable . -' ^ This statement implies that governments maintain their immunity unless they specifically intend to abrogate it. Therefore, it can be construed, in a liberal interpretation, that since the United States federal government did not specifically abrogate governmental immunity, that such immunity was in effect. The earliest federal tort case bears out this point. In Little v. Barreme , the Supreme Court of the United States held Little, a captain of a United States warship, liable for damages even though the captain was operating in "good faith" on instructions from the President. ''^^^ The appellees, owners of a French ship, did not even attempt to sue the President of the United States or lOS^jjj, p]7DEj;.^Lisx PAPERS, No. 81 (Hamilton) (1788). ^^^Little V. Barreme 2 U.S. (Cranch) 170 (1804).

PAGE 56

the Government since they d(^ tc;rmi ncd that the United States was operating under the pr i v/-.i 1 epe of governmental immunity. In 1821, Supreme Court Chief Justice Marshall, writing the opinion of the majority in Cohens v. Virginia declared : 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. 1^5 Chief Justice Marshall gave no defenses or reasons why immunity would be a "universally received opinion." He did, however, make several references to Chisholm v. Georgia , a case which examined sovereign immunity of an individual state. "^^'^ This case will be discussed in succeeding sections of this chapter. It was at this point then, in 1821, where governmental immunity became a "formally" accepted principle in federal law. Prosser states that following the Cohens v. Virginia case: Consent to be sued began to appear in the form of special legislation by Congress authorizing particular plaintiffs to sue on particular claims. Apart from the obvious possibility of political influence, this of necessity involved considerable delay and inconvenience, as well as inflicting a considerable burden upon the time of Congress . -'•^° 105 106 107 108 Cohens v. Virginia 19 U.S. 264 (1821). Supra note 92 at 971. Chisholm V. Georgia 2 U.S. (2 Dallas) 419 (1793). Supra note 97 at 1117.

PAGE 57

4') In 1855, Congress, j;rou'i.n^' weary o£ passing legislation on specific tort cases, passed the Federal Court of Claims Act. This Act makes the United States liable under the local law of the place where the tort occurs, for the negligent or wrongful acts or omissions of federal employees within the scope of their employment "in the same manner and to the same extent as a private individual under like circumstances." It has been held to make the government liable where the negligence of some employee is proved, although he is not identified. It has been held to mean that the United States may be impleaded as a joint tortfeasor, and becomes liable for contribution where the local law permits it; and that it creates liability to insurers on subrogation claims . HO There were, however, several exemptions to this abrogation of immunity. Parties could not sue the federal government for claims arising out of: 1) Military service ..^ 2) Special activities of the government 3) "Assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights. "H-^ The United States Court of Claims did not, however, have power to adjudicate findings under the 1855 statute. "This was initially meroly an advisory court making recommendation: -^^^28 U.S.C.A. §1356, 1402, 1504, 2110, 2401, 2402, 2411, 2412, 2671-2680. ^•'^ Supra note 92 at 972. ^^-•-28 U.S.C./V. §2680 (j) . -^^^28 U.S.C.A. §2680 (i) . ^^^28 U.S.C.A. §2680 (h) .

PAGE 58

50 to Congress." In 1863, the Court o£ Claims was empowered 115 to make effective judgements under tlie 1855 act. Some authorities point out that even wi.tl\ the Federal Tort Claims Act, very few tort claims received redress. Over 18 bills were introduced into Congress between 1919 and 1946 which intended to alter, amend, or replace the 1855 statute. Finally, in 1946, Congress passed the Federal 117 Tort Claims Act of 1946. This act has been heralded as 118 being "a very important step forv-zard." It abrogated governmental immunity from liability in tort for tlie United States and provided for litigation of tort claims against the government. Many of the exemptions found in the 1855 act still apply, but redress became much easier to acquire. Since the passing of this act, the Federal Court of Claims has heard and ruled on a great number of tort liability cases. It is important to point out that in 1855 the United States federal government attempted to abrogate its immunity from tort liability 38 years before England did so. Hov\fever , England totally abrogated their immunity at that time-the 119 United States did not do so until 1946. -^-"-"^ Supra note 97 at 1117-1118. ^-•-^Id^ note 97 at 1118. -'^-^^ Supr a note 92 at 972 and note 98 at 1118. •'^^^28 U.S.C.A. § 1346. '-'^Id note 92 at 973. ^^^Supra note 86.

PAGE 59

51 The Indivi dual S t^it £^s_and Governm e 1 1 1 a 1 Iiniim nlty Unlike the federal '.^overnnent of the higliteenth Century, the state governments \vliich replaced the English colonial governments did not have absolute control regarding their governmental immunity status. As pointed out earlier, the newly adopted constitution of 1788 gave federal courts jurisdiction over suits between a citizen of one state and another state. This was viewed by many states to be an infringement on the sovereignty which Hamilton refers to in 121 The Federalist Papers (No. 81). Individual states did inherit some immunity form from the previous English government for there is no mention of the possibility of a citizen of a state suing the state in which he enjoys his citizenship. This is not to mean that an Englishman could not sue the crown. For if an Englishman petitioned the crown to alloiv itself to be sued (and the crown agreed to do so) , then suit could be brought against the English crown. States, through common law transference, were able to maintain their immunity witli their own citizens. In 1793, the newly formed Supreme Court of the United States ruled on a governmental immunity case that is 122 of great importance. Not only did Chisholm v . Cie^orgia Supra note 101 . Supra note 10 3. ^^^2 U.S. (2 Dallas) 419 (1793)

PAGE 60

inspire quick passage and ratification o£ the Eleventh Amendment to the United States Constitution, but it also established a common law link regarding the transmission of the governmental (sovereign) immunity concept into American 1 aiv . The Chisholm case presents the question Can the State of G eorgia . . .be made a party-defendant in any case . . .at the suit of a_private citizen of the State of South Carolina ?!^^ Cliisholm, a resident and citizen of South Carolina, was seeking compensation for the nonperformance of a contract made with the State of Georgia. The attorney general of Georgia claimed that no suit could be brought against the state since the state was sovereign. The Supreme Court's (of the United States) justices examined all the relevant aspects of Georgia's inherited sovereign immunity in analyzing the case. Mr. Justice Iredell, in discussing the applicability of English law to the newly formed Union states: I presume it will not be denied, that in every State in the Union , previous to the adoption of the Constitution, the only common law principles in regard to suits that were in any manner admissible in respect to claims against the State, were those \/hich in England apply to claims against the crown is that which is called a Pe t ition of ri ght. . . but now none can have an action against the Kigg , but one shall be put to sue to him by petition. ... The same doctrine appears in Bla ckstone's Commen "^Mr. Randolph, Attorney General for the United States, arguing for the plaintiff, Supjra note 122 at 420.

PAGE 61

53 taries. 1 Vol 243.^^4 yi^^j s;i]jic doctrine is also laid down with equal (>xplic i tness , and without noticing any distinction wh;itcvcr, in Blacks tone ' s Commentaries , 3 Vol . 256, wliere he points out the petition of right as one of the common law methods of obtaining possession or restitution from the crown, either of real or personal property; and says expressly the petition of right 'is of use where the King is in full possession of any hereditaments or chattels, and the petitioner suggests such a right as controverts the title of the crown, grounded on facts disclosed in the petition itself .' -"-^^ Justice Blair, while endorsing the concept of sovereignty and immunity from suit, points out And if a State may be brought before this Court, as a Defendant, I see no reason for confining the Plaintiff to proceed by xiay of petition; indeed there would even seem to be an impropriety in proceeding in that mode. When sovereigns are sued in their own Courts, such a method may have been established as the most respectful form of demand; but we are not now in a State -Court; and if sovereignty be an exemption from suit in any other than the sovereign's o\\rn Courts, it follows that when a State, by adopting the Constitution, has agreed to be amenable to the judicial power of the United States , she has, in that respect, given up her right of sovereignty. ^" Mr. Justice Wilson, however, points out that the Constitution of the United States is conspicuously absent of the word "sovereign" ; To the Constitution of the United States the term SOVEREIGN, is totally unknown. There is but one place where it could have been used with propriety. But, even in that place it would not, perhaps, have comported with the delicacy of those. 124 Supra note 122 at 437 * ^Id. note 122 at 442. -"^^Id note 122 at 4S2.

PAGE 62

54 who ordained and est.al)"! ished that Constitution. They might have anno uTit:Fil~t lie in s e 1 v e s "SOVEREIGN" people of the United States^: But serenely conscious of the fact , they avoided' the ostentatious D eclaration .12 7 In examining the historical development of sovereignty and immunity, Wilson refers to Blackstone's Commen taries several times. The law, says Sir William Blackstone , ascribes to the King the attribute of sovereignty: he is sovereign and independent within his own dominions; and owes no kind of subjection to any other potentate upon earth. Hence it is, that no s u i t or action can be brought against the King , even in civil matters; because no Court can have jurisdiction over him: for all jurisdiction implies superiority of power. This last position is only a branch of a much more extensive principle, on which a plan of systematic despotism has been lately formed in England , and prosecuted with unwearied assiduity and care. Of this plan the author of the Commentaries was, if not the introducer, at least the great supporter. He has been followed in it by writers later and less known; and his doctrines have, both on the other and this side of the Atlantic, been im.plicitly and generally received by tliose, who neither examined their p rinciples nor their consequences . l-Q ... In England , according to Sir William Blackstone , no suit can be brought against the King , even in civil matters. So, in that Kingdom, is the law, at this time, received. ^ Finally, however. Judge Wilson concludes: It is plain then, that a State may be s ued , and hence it plainly follows, that suabi lity and State Sovereignty are not incompatible . l^*-* -'-^'' Supra note 122 at 454 -^^'^Id note 122 at 458. •^^Id note 122 at 460. •^^Id note 122 at 473.

PAGE 63

Consequently, the Supreme Court of the United States ruled that even though a state may not give consent to be sued or even oppose being sued, a citizen of another state may sue the state because Article III, section 2 of the Constitution authorizes such suits. In upholding the power of the federal c:ourts, the Supreme Court permitted both tort and contract liability suits since the article in question reads "(t)he judicial Power shall extend to all Cases ..." (italics added). ' The Constitution does not specify either contract suits or tort suits, Chisholm V. Georgia, one of the earliest Supreme Court cases on the subject, held that Article III of the Constitution gave the federal courts jurisdiction over suits against a state by citizens of another state, whether or not the state had consented to suit. This decision caused a great deal of turmoil among the states, who feared that this would open the door to innumerable suits based on debts accrued during the Revolutionary War, and eventually bankrupt the fledgling state treasuries . ^2^ This case's great importance to this study comes from the various justices' discussions regarding the sovereign and governmental immunity aspects of the case. The situation in 1793 for the states, then was thus : 1 States, by inheriting sovereignty from colonial governments, exercised governmental immunity and could not be sued by one of their own citizens. "Su''.")T a note 101 . -^'"Suora note S3.

PAGE 64

56 2) Due to Article' III, section 2 of the ratified 1788 United States Constitution, states could be sued in federal court by citizen^ oF otlier states. As previously mentioned in this paper, many scholars believe that sovereign immunity was transmitted to this country through the Russell v. Men Dwelling in Devon case. They maintain that this legal precedent set the foundation for the establishment of this concept in the United States. However, this case was decided in 1788. The Supreme Court of the United States decided the Chisholm v. Georgia case in 1793. Five years had passed since the supposedly significant Russell decision, yet there is not one reference to this earlier case in Supreme Court's decision. The Supreme Court of the United States, instead, examines the concept of sovereign immunity in terms of Blackstone's Commentaries on the Laws of England . •''^^ Mr. Justice Iredell states that "(e) very man must know that no suit can be against a legislative body."''"^^ He then references "1 Blackstone's Commentaries 243" to prove his point. In discussing the common law transmission of ancient law into modern law, the justice writes : ^^^Russcll V. Men of Devon, 100 Eng . Rep. 359 (1788) 134 c. 4o7 Supra note 83 , 135 Supra note 122 at 437

PAGE 65

I take it for gi;u!t"cd, tliat when any part of an ancient law is to be ap])liod to a new case, the circumstances of the new case must agree in all essential points with the circumstances of the old cases to which that .mcicut law was formerly appropriated. -'-^" He then finds the circumstances of sovereign immunity in ancient times to agree with tlie circumstances of the new case. The vital point of this decision to this study is that the United States Supreme Court, tlie highest court in the land, did not base its decision on some obscure English case, but rather on the vv^ritings of the scholar who helped to formalize and legitimize the concept of sovereign immunity in England. Russell and Others v. The Men Dwelling 138 in the County of Devon is probably not the primary method of transmission of the common law principle of sovereign immunity from England to the United States, but rather Sir William Blackstone and his Commentaries on the Laws of England provided the legal basis for adoption of this principle into American law. The courts of the United States relied on the English scholars' interpretation of English laws iiiuch more than obscure English case law when justifying their opinions on the sovereign immunity principle. "•^^Supra note 122 at 447 137 Supra note 133. Id note 133.

PAGE 66

58 Russell and Othe r;; v. The Men Dwelling in the County of Devon -^^ was no f Tol lowed by a court in the United States until 1812 when a Massacluisctts court ruled on Mower V. Inhabitants of Leiceste r''^'' This left a time period of 24 years where United States courts were ruling on public tort liability cases without using Russell as precedent. Early Immunity Cases in the States The 24 year time period between Russell and Mower (1788-1812) is very important to this study. If the theory advancing the "Russell" connection is correct, then on \diat basis did the various state courts rely in cases concerning immunity during this 24 year period? If it can be shown that many state courts relied on the principles of law which existed prior to Russell or on principles other than Russell , then the Russell theory is questionable. Many cases were found involving actions against public officials for tortious offenses. By far the most popular type of cases were actions brought against local sheriffs for damages resulting due to a prisoner escaping from the town jail. ' During this tiiiie period, it was generally held that the sheriff is liable for damages ^^^Supra note 133 140 Mower v. Inhabitants of Leicester 9 Mass. 246 (1812) Shel don v. County of Litchfield 1 Root 158 (conn. 1790) ; C Tark"e v. Little, Johnson, and Webb er 1 Smith 100 (N.H.^ TBOS); Moccubbin v. Thornton 4 Md 461 (1807); et cetera,

PAGE 67

59 if he knew of the escape, aided in the escape, or if he knew 142 tlie jail was defective and this defect led to the escape. Otherwise, the sheriff, being a public official, was held immune from suit. However, none of these early "escape" cases cited authorities or sources of law for their decisions. Actions against other public officials (town councilmen, constables, clerks, et cetera) were also prevalent during the 24 year period in question. In 1793, a Connecticut court ruled on a case where the town constable spent bond funds and could not return 143 them to the proper person." The court ruled that Towns are not liable or responsible for the conduct of the constable 'Whom they appoint, in the execution of their office.^'* Another Connecticut case affirms the immunity privilege without citing sources or references. In Willet v. Hutch inson, Town Clerk , a town clerk received a deed and entered upon it "received for record," but forgot to record it in town records, thereby caiising the plaintiff monetary damages. The court found 142 S upra note 141, Clarke v. Little, Johnson, and Webber 1 Smith 10 (IS OS}. 14 3 Hurlburt V. Marsh a nd the Town of Litchfield 1 Root 5 20~T179 3}T~ •''Supra note 143. ^'^^2 Root 8S (1794) .

PAGE 68

60 That a town clerk beinj; an officer o£ public trust and confidence, much dci)endcd upon his duly attending to the law in the (.-xecution of his office, and he, having once received a deed as town clerk and entered upon it, "received for records", may not suffer it to go out of his hands, unrecorded; as he will be answerable in damages , to any person that shall be prejudiced thereby . '-'^" An early New Hampshire case involving (again) a sheriff provides an interesting connection for the argument of historical common law immunity. It is an established principle of jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts, or in,£|ny other, without its consent and permission. ^' 14 8 In 1797, a Delaware court ruled on a case much like Russell"^ where the town commissioners of Levy Court chose not to repair a bridge over W. Clay Creek. The State of Delaware brought suit against the local commissioners seeking damages for "neglect" due to their failure to repair 150 the bridge. The court held "(T)he indictment quashed" Commissioners form a corporate body, and are not indictable in their individual capacity. The cases all go to show that judges, etc. are not liable for mistakes, not for neglect on duty. ^"^^Supra note 145 at 86. 147 148 Supra note 142 at 102. State V. Commissioners of the Levy Court 2 Del. Cases 85~(1797) 149 Supra note 133 S upra note 148 ^^^Id note 148 at 86 ^^^Supra note 148 at 81

PAGE 69

A Massachusetts court held in 1804 that the town 152 clerk is not liable for misrecording a deed. Judge S. Dana quotes an English case to support his point. But the great point in the case is , that an agent for the public is not liable to be sued UDon contracts made by him in that capacity . -'-^^ Judge Thacher, in finding for the clerk states It appears by the record that the plaintiff in error was acting as the agent of the public. The law is settled that any person, acting in that capacity . . . does not render himself personally liable. an officer appointed by the government ... is not liable to be sued ... a servant of the public is not personally answerable.-'--" In 1804, a Massachusetts court interpreted a state statute erroneously and found a local municipality liable in Lob dell V. Inhabitants of New Bedford . However, eight years later, the same court corrected its earlier error and found a local municipality not liable in an identical sitnation as the 'L obdell ' case and applying the same statute. None of those cases cited above, nor any of those encountered between the years 17 76 and 1812 cited Russell as a legal precedent for the maintaining of sovereign immunity ''^''^Br own v . Au stirx 1 Mars 208 (1804). ''^ Supra note 152 at 213, Judge S. Dana quoting Ma cbeath V. Holdmand 1 T Rep 172. '"''^Id note 152 at 217, Judge Thocker. -^'^'^1 Mass 1.53 (1804) . ^^^'Sun-r-a note 140.

PAGE 70

62 in the United States. Indeed, in almost every instance, the various justices felt thai: it was "settled law" or "common law" that establishes the prIviUn',e of governmental immunity. This indicates that our foundation of governmental immunity was inherited from the English sovereign immunity (as described by Blackstone-*"^^) through the colonies. The Russell case connected to the United States through the Mower v. Leicester precedent, happened 19 years after the -j r Q United States Supreme Court in Chisholm v. Georg ia discussed the principle of sovereign immunity in terms of 159 inheritance and Blackstone Governmental immunity, then, as enjoyed by individual states, was inherited (along with much of the rest of the United States' legal system) when American state governments took over control from the English colonial governments in 1776. The immunity which the English colonial governments enjoyed was derived from English com.mon law as described in Blackstone's Commentaries . For the next 150 years, governm.ental immunity was the rule when applied to states and their governments. Occasional cases would reach the courts, but the results 157 Supra note 9 . Supra note 122 . ^^Id note 9. l^^Id note 9.

PAGE 71

6 5 ^\'ere always the same-the st;itc is immune from suits unless it consents to be sued. It is a familiar doctrine of the common law, that the sovereign cannot be sued in his own courts without his consent . . . Tlic exemption from direct suit is, therefore, without exception . 161 Every government has an inherent right to protect itself against suits . . . The principle is fundamental (and) applies to every sovereign power. ^ Abrogation of Immunity by the States As discussed previously, the federal government partially abrogated its immunity in 1855 with the establishment of the Federal Court of Claims, and totally abrogated its immunity in 1946 with the Federal Tort Claims Act of 1946 . The individual states, however, were much more reluctant to do so. It was not until the 1950 's, that serious challenges began to arise against the governmental immunity doctrine. These cliallenges appeared on the most obvious and logical of fronts-the state courts and the state legislatures. Challengers attempted to influence state legislatures or convince state courts to abrogate the governmental immunity enjoyed by the states. It is appropriate at this point in the study to elaborate on the abrogation issue momentarily. There are ^^•The Siren 74 U.S. (7 Wallace) 152 (1869) at 154 162 Nichols V. United States 74 U.S. (7 Wallace) 122 (1869) at 126

PAGE 72

64 two types of abrogation: There is total abrogation of governmental immunity. Tli i s is where the state gives up al_l of its privileges of immunity. It can be sued for any type of liability, tort, contractual breach, et cetera. There is also no limitation of damages which can be collected from the state if a suit is successful. On the other hand, there is partial abrogation of governmental immunity where the state gives up only part of its privileges of immunity. There are two elements of partial immunity-categories of liability and limitations of damages. In the categories of liability, the state may abrogate only types of liabilities for particular kinds of actions. For exam.ple, some states will permit only actions .resulting from school bus accidents to be heard in state courts. The other element of partial abrogation, limitations of liability, is where a state will set a maximum amount for which it can be sued. For example, a state may allow itself to be sued, but not for more than a specified amount per person per incident. This is an attempt by the state to keep from paying out unusually large sums in damages and, thereby, upsetting the fiscal balance of the state budget. In many instances, states use a combination of "categories of liability" and "limitations of damages" in tlieir partial abrogation of governmental immunity. The Commonwealth of Virginia is an excellent example of this type of abrogation. In this state, the only action for

PAGE 73

vv'hich the state can be sued is scliool bus accidents. And the suit cannot be for mor'.: than $50,000.00 per person per incident. In this manner, tJie state has reduced its liability of both suits and damages through partial abrogation. As mentioned previously, the two methods of abrogating governmental immunity may be by act of the state legislature or by court order. In the late 1950's, state legislatures were hesitant to abrogate even partial immunity for fear of causing a flood of suits. Due to this reluctance, state courts took the initiative and began to abrogate governmental immunity in a series of "spectacular decisions abolishing governmental ^ ,,163 immunity. The first of these was Hargrove v. To^^;n of Cocoa Beach (Fla. 1957) 96 So. 2d 130. This was followed, over a period of two years, by a trio of rather spectacular decisions abolishing the municipal immunity, in Molitor v. Kaneland Community Unit Dist. NoTT02~ (1959) 18 111. 2d 11, 163 N.E. 2d 89; Williams v. City of Detroit (1961) 364 Mich. 231, 111 N.W.2d 1; and Muskopf v. Corning Hospital District (1961) 55 Cal . 2d 211, 11 Cal . Rptr. 89, 359 P. 2d 457.^^4 A notable case concerning abrogation of governmental immunity was Hargrove v. Town of Cocoa Beach ' In this case, the Supreme Court of Florida decided that for: •^^'^ Supra note 97 at 1124. ^^^lA riote 97 at 1124. -'^^''96 So. 2d 130 (1957) .

PAGE 74

66 an individual to suffci" a grievous wrong (rather) than to impo.;o liability on the people vicariously through their government . . . is . . . a sham to our constituL lonal guarantee that the courts shall always bo open to redress \vrongs.^"" The court then reversed its pre\^ious decisions supporting the governmental immunity concept because o£ the many incongruities and inconsistencies in applying the immunity principle. The modern city is in substantial measure a large business institution. While it enjoys many o£ the basic powers o£ government, it nonetheless is an incorporated organization which exercises those powers primarily for the benefit of the people within the municipal limits who enjoy the services rendered pursuant to the powers. To continue to endow this type of organization with sovereign divinity appears to us to predicate the law of the Twentieth Century upon an Eighteenth Century anachronism. Judicial consistency loses its virtue when it is degraded by the vice of injustice. We therefore now recede from our prior decisions which hold that a municipal corporation is immune from liability . 1^^ Therefore, the Supreme Court of Florida led the way towards abrogation of governmental immunity by abrogating municipal immunity throughout the State of Florida in 1957. In doing so, tlie court pointed out that the doctrine established in Russell "had its inception . . . in 1788, some twelve years after our Declaration of Independence" and pondered why this new country would support and endorse such a doctrine. Supra note 165 -''^^Id note 165.

PAGE 75

67 Quickly after tlu^ I la ri'.rove decision was made in Florida, an even more historic case was decided in the State of Illinois. Molitor v. K ; incl and Community Unit District No. 302 is of primary importance to this study for several reasons. First, this decision abrogated governmental immunity in the State of Illinois; and second, the decision is an education case concerning a school bus accident. This case is the link between the examination of the governm.ental immunity concept, and its application to United States education. In its decision, the Supreme Court of Illinois states : We do not believe that in this present day and age, when public education constitutes one of the biggest businesses in the country, that school immunity can be justified on the protectionof -public-funds theory. ^"^ The court also found that v;hile the school system did possess limited insurance to cover liability in school bus related accidents , "the question as to whether or not ,170 the institution is insured in no way affects its liability." In fact, the court found a grave inconsistency in the entire insurance issue. Supra note 3. -^^^Id note 3 at 96. ^''^Id note 3 at 93.

PAGE 76

68 Thus, under this statute, a person injured by an insured school district bus may recover to the extent of such insurance, whereas, under the Kinnare doctrine, a person injured by an uninsured school district bus can recover nothing at all.^''^ The Illinois Court also faced the Russell doctrine head on and found that : It should be noted that the Russell case was later overruled by the English courts, and that in 1890 it was definitely established that in England a school board or school district is subject to suit in tort for personal injuries on the same basis as a private individual or corporation. ( Crisp V. Thomas , 63 LTNS 756 (1890).) Nonimmunity has continued to be the law of England to the present day. Yet, in the United States, courts, justices, and legislators have seized upon this acient, obscure case and endorsed it (even) in modern times while ignoring the fact that it was overruled in England in 1890. Three years after the Molitor case, the Supreme Court of Michigan was faced with a similar situation in Williams v. City of De troit. In this case, the court endorsed the notion of governmental im.munity in the present case, yet "overruled the doctrine of governmental im.munity ] 74 for future cases by a majority of the court."' ^^-^ Supra note 3 at 92. ^'^^Id note 3 at 91. -^''^lll N.W. 2d 1 (1961) . '"Supra note 173 at 1.

PAGE 77

6 9 From this date forward tlie judicial doctrine of governmental immunity from ordinary torts no longer exists in Michis^an. '^ The court, in essence, was giving the Michigan legislature notice that legislative abrogation of governmental immunity would be preferable to judicial abrogation but the court would do it if the legislature would not. The practical situation presented is that if the legislature deems it necessary so to do it may act to modify, or even abrogate entirely, the doctrine of governmental immunity. It is also true that the people acting under the initiative provisions of the State Constitution may accomplish a like result by legislation or by Constitutional amendment .^'° The Michigan court ignored the English precedent and generally directed its attentions to recent American case law. It did not feel at all bound by the ancient maxim, "the king shall do no wrong. " The third case of what Dean Prosser calls "a trio of rather spectacular decisions" is Muskopf v . Corning 177 Hospital District . The Supreme Court of California in its 1961 decisions found no justification for maintaining the archaic concept and "held that the doctrine of governmental immunity from tort liability is to be rejected as mistaken and unjust „178 175 176 Supra note 173 at 2. Supa-a note 97 at 1124 -^^^359 P. 2d 457 (1961) 17 8.. >upra note 177 at 457

PAGE 78

70 The court felt, that by abrogating governmental immunity, it was not breaking, with past precedent, but rather concluding a wrongly established legislative and judicial trend. Only the vestigial remains o£ such governmental immunity have survived; its requiem has long been foreshadowed. For years the process of erosion of governmental immunity has gone on unabated. The Legislature has contributed mightily to that erosion. The courts, by distinction and extension, have removed much of the force of the rule. Thus, in holding that the doctrine of governmental immunity for torts for which its agents are liable has no place in our law we make no startling break with the past but m.erely take the final step that carries to its conclusion an established legislative and judicial trend. -*' Due to the monumental implications of these three precedent setting decisions, state legislatures began to 18 take rapid action. Many state legislatures, fearful of court ordered total abrogation, immediately passed legislation partially abrogating governmental imm.unity. In other states, the courts seized upon the new precedents and began abrogation (either partial or total) of governmental imm.unity. Some state legislatures passed abrogation bills in response to partial abrogation by tlieir own state courts. In any event, the Mo liter , Williams , and Muskopf decisions opened the flood gates for challenges to the governmental immunity •^'^^ Supra note 177 at 463. Supra note 97 at 1124.

PAGE 79

71 issue. Since the late 1950 's governmental immunity has been in a fluid state, changing i'rom year to year compensating for various community and judicial attitudes. The trend is definitely towards abrogating of governmental immunity. By 1971, the states of Alaska, Arizona, Arkansas, California, the District of Columbia, Illinois, Indiana, Kentucky, Louisiana, Michigan, Minnesota, Nebraska, Nevada, New Jersey, and V/isconsin had their governmental immunity 181 abrogated by state court decisions. Many of these courts expressed sentiments similar to those found in Molitor v. 1 8 7 Kaneland Community School District . It is revolting to have no better reasons for a rule of law than that it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.-'-"-^ There are probably few tenets of American jurisprudence which have been so unanim.ously berated as the governmental immunity doctrine. This court, and the highest courts of numerous other states have been unusually articulate in castigating the existing rule; test writers and law reviews have joined the chorus of denunciators . . . The abrogation of the doctrine applies to all public bodies within the state ... by reason of the rule of responda nt su perior a public body shall be liable for damages for the torts of its officers, agents, and employees occurring in the courts of business of such public body. -'-^-'Supra note 97 at 1124. 1 O Z o ^ V Supra note 3. -| O T Supreme Court of Minnesota, Spanel v. Mounds View Sch ool District No. 6 21 188 N.W. 2d 79 5 (196^7: 18 4 Supreme Court of Wisconsin, Hol ytz v. City of Milwaukee 155 N.W. 2d 618 (1962).

PAGE 80

72 The rule o£ goveidmental immunity for tort is an anachronism without rational basis , and has existed only by the fnrce of inertia. For years the process of erosion of governmental immunity has gone on unabated. Tlie Legislature has contributed mightily to that erosion. The courts, by distinction and extension, have removed much of the force of the rule. Thus, in holding that the doctrine of governmental immunity for the torts for which its agents are liable has no place in our law we make no startling break with the past but merely take the final step that carries to its conclusion an established legislative and judicial trend. ^^^ Appendix 1 presents a table which illustrates the major court decisions in states where courts have found the need to abrogate governmental immunity. This table presents the court decision and the appropriate governmental entity affected (if any other than the state) . Material found in this table came from a nationwide survey conducted by this researcher regarding state governmental immunity and from the National Association of Attorneys General's January, 1975 report on Governmental Immunity. Over 30 states have case law precedents limiting some aspect of governmental immunity. In all of these states, the court decisions have been since 1957. Fourteen of these states have had court decisions since 1970. This appendix shows that a majority of states have limited governmental immunity by court decision in the last 20 years. ""^^California Supreme Court, Muskopf v. Corning Hospital District , supra note 177. Supra note 94 .

PAGE 81

7 3 After this trend of court decisions ordering abrogation, state legislatures immediately began passing legislation concerned with governmental immunity. Almost withoiat exception, state legislatures have responded quickly to state court decisions regarding sovereign immunity. When an Arkansas court abrogated the doctrine of sovereign immunity, the legislature immediately reinstated the doctrine, finding the vitality of the principle essential to the fiscal integrity of the state, A second group of states responded by limiting their liability through tort claim.s acts, a number of which were modeled after the Federal Tort Claims Act. These acts have the effect of reinstating immunity except where the act provides for liability. Twenty states have tort claims acts. Although they differ in a numiber of particulars, there are significant similarities. For example, there is commonly a requirement that all claims be presented to the relevant state department or agency, which has a specified period of time in which to review the claim and either pay it or deny it. In some states, as soon as the claim is denied by the department, the claimant may seek redress in the courts. In others, a special hearing or appeal board must have reviewed and affirmed the denial of the claim before the jurisdiction of a court may be invoked. Each act has specific exceptions to liability. These include: discretionary acts within the scope of employment, intentional torts by employees, false imprisonment, malicious prosecution, and invasion of privacy. ° Appendix 2 is a table which presents informiation about state legislation concerning governmental immunity. This table lists both the statutory provisions of each state and the appropriate coverage. Like Appendix 1, the information found in this table comes from this researcher's national survey and the 1975 report on governmental immunity for The '"^ Supra note 94 at 21

PAGE 82

7 4 -) O Q National Association of Attorney's General. Appendix 2 shows that a majority of slates (48) have some provision for 189 handling tort suits against the state. These provisions 190 range from insurance coverage (5) to various tort claims 191 acts (18). Many states have statutory provisions requiring the state's attorney general to represent various state officers in tort suits. The appendix reveals that most states deal with governmental immunity concerns through statutory means rather than constitutional provisions. Only Georgia and Montana use the state constitution to direct 192 tort claim procedures . Mississippi and Pennsylvania have no statutory or constitutional provisions regarding the governmental inununity issue. Eighteen states use some type of tort claims act in their liability legislation while five states raake provisions for insurance coverage. Through statutory means, three •^^^ Supra note 94. Some statutory provision which speaks directly to the tort liability issue. Colorado, Delaware, New Hampshire, New Mexico, and Wyoming. 1 Q 1 Georgia, Idaho, Illinois, Indiana, Iowa, Kentucky, Missouri, Montana, Nebraska, Nevada, New Jersey, New York, North Carolina, Ohio, Oregon, South Carolina, Tennessee, and Texas. -"-^^GEORGIA CONSTITUTION, ARTICLE VI; and MONTANA CONSTITUTION, ARTICLE II.

PAGE 83

75 . 193 , ., states uphold the principle o I: sovercit;n immunity while 194 six states substantially alirogntc it. The information compiled in Appendix 3 was gathered primarily from this researcher's nationwide survey. Letters were sent to each attorney general of each state asking for that official to outline the status of governmental immunity in his/her state. Appendix 3 provides a composite presentation of the most recent information regarding the status of governmental immunity. Letters from states' attorneys general cite both courts decisions and statutes in determining the extent to which governmental immunity operates. The survey reveals that most states C3S) have some -^ -^ 195 form of partial abrogation of governmental immunity. The extent of this immunity varies from limitations of damages to limitations of categories of liability. Fourteen States have totally abrogated their immunity while eight 197 states still claim full governmental imaiiunity. '^^Arkansas , Minnesota, Oklahoma. •^^^Florida, Illinois, Maryland, Montana, Rhode Island, and Vermont. ^^^See Appendix 1. -^^^Alaska, Arizona, California, Delaware, Florida, Hawaii, Illinois, Louisiana, Mayyland, Michigan, Montana, New Jersey, Vermont, and Washington (state). -^^^Connecticut, Georgia, Kansas, Mississippi, Missouri, North Carolina, Pennsylvanis , and Virginia.

PAGE 84

76 Michigan's attorney general responded that he was unable to ascertain the stat.us of governmental immunity in liis state. Responses from the attorneys general indicate that many states are actually engaged in statutory or court examination of the governmental immunity principle. This continued interest indicates that the immunity issue is fluid and changes as the needs of the states fluctuate. 198 Letter from Louis A. Riyoli dated December 16, 1976.

PAGE 85

Sovereign immunily was transmitted to both the state and federal governments by tiv'o paths: first, the principle was inherited by the state (and federal) governments when they took over the functions of the English colonial government. And second, the concept of governmental immunity was formalized by the courts (especially the United States Supreme Court's) reliance on Blackstone's Commentaries on 199 the Laws of England ' as a common law principle. The federal government partially abrogated some of its immunity in 1855 with the establishment of the Federal Court of Claims. In 1946, \sfith passage of the Federal Tort Claims Act of 1946, the federal government totally abrogated its governmental immunity. Prior to 1798, the individual states were only immune from suits from their ovvn citizens. They could be sued in federal court by citizens of other states. In 1798, however, the Eleventh Amendment to the United States Constitution was ratified and, thereby, gave individual states total governmental immunity. This total immunity continued until the late 1950 's and early 1960 's vvhere a rash of spectacular court decisions abrogated many state's governmental immunity. State legislators quickly responded by passing legislation abrogating (either partially or totally) governmental immunity by state statute rather than allowing Supra note 9.

PAGE 86

78 state courts to determine t:ho extent of abrogation. Since then, state governmental immunity lias been changing year by year to accommodate the attitudes of both, the public and the judiciary. The trend is towards abrogation of governmental immunity as Appendices 1, 2, and 3 substantiate.

PAGE 87

CHAt'TER 4 IMPLICATIONS OF THE GOVERNMENTAL IMMUNITY PRINCIPLE TO EDUCATION IN THE UNITED STATES Since the late 1950 's, many local and state educational systems have become involved in the abrogation of governmental immunity controversy. Education interests are an important aspect of this controversy because in all 50 states, plus the District of Columbia, education is specified as being an official state function. Education has not been viewed by courts as a proprietary function, but rather as a governmental function. Therefore, education is a legitimate and bonafied state interest with official state status in all 50 states. Prior to the late 1950's, most states in the United States enjoyed the prerogative of governmental immunity This immunity which the states enjoyed was also extended to the various agencies and departments which perform governmental functions. Education, being one of these agencies or departments, also possessed governmental immunity from liability. 2°°A. H. LEVINE, E. CAREY, AND D. DIVOKY, THE RIGHTS OF STUDENTS 15 (197 3) . ^^-'160 A.L.R. 38. 79

PAGE 88

The abrogation movomont liegan to substantially alter this immunity status in the late 1950 's. The most notable case involving education being Moll tor v. Kane land which vv-as adjudicated by the Supreme Court of Illinois in 1959.^^^ This case was the first of what Dean Prosser called "a trio of rather spectacular decisions" following the important Florida decision in Hargrove v. Town of Cocoa ich.^^"^ Therefore, it is important to realize that educa5ea( tional tort liability cases are frequently at the spearhead of the abrogation of immunity movement. The reasons for this situation probably arise because of the nature of the educational process. Education, by its very nature, is much more susceptible to tortious acts than most other state agencies or departments are. Because of this, there is a great deal more legal activity concerning liability in the education field, than in other governmental function fields. Early Case Law The earliest known case involving court abrogation of sovereign immunity in an education case occurred in 1890 in England ( Crisp v. Thomas ) . ' This landmark decision ^^^Supra note 3. ^^•^Supra note 100 ^^^ Supra note 80.

PAGE 89

established the liability o l' education for acts of negligence in torts. It should be noted that this case overruled the immunity doctrine whiclt was established over a hundred years earlier in England. That same year, the English Parliament partially abrogated that nation's sovereign inununity as a result of this decision involving an education case. Therefore, in England, the doctrine of sovereign immunity was judicially abrogated in an education case ( Crisp V. Thomas ) . This decision places education at the spearhead of the abrogation movement in England. In the United States, however, the judicial attitudes towards both, abrogation of immunity and educational tort liability cases, remained consistent. Court after court in the Nineteenth Century ruled that the doctrine of governmental imimunity prevented the state (and schools) one from being sued. Everyone of these early education decisions reflected the continuance of the governmental immunity from liability, even in cases of gross negligence. (T)he rule of immunity has been applied or recognized where the negligence was that of a school district itself, or of a school board, as well as where the negligence was that of officers, Grander v. Pulaski County 26 Ark. 37 (1870 Arkansas), Elmore v. Drainage Commissioners 135 111. 269 (1890 Illinois), Kinnare v. Chicago 171 111. 332, 49 N.E. 536 (1898 Illinois), F reel v. Crawf ordsville 142 Ind. 27, 41 N.E. 312, 37 LFL^ 301 (1895 Indiana), Kincaid v. Hardin C ounty 53 Iowa 4 30 (188 Iowa) , McKenna v. Kimball 14 5 Mass.~55 5, 14 N.E. 789 (1888 Massachusetts), Ferris v. Board of Education 122 Mich 315, 81 N.W. 98 (1899 Michigan), BlmF ~v. Brainerd School District 49 Minn. 106, 51 N.W. 814 XT&92 Minnesota) , Finch v. Board of Education 30 Ohio St 37 (1896 Ohio), Ford v. Kendall School Distr ict 121 Pa. 543, 15 A. 812 (1888 Pennsylvania).

PAGE 90

8 2 such as the trustees or directors of a school district, or the negl i}',oiico oC agents or employees. And the rule of im.munity is applicable for negligence committee in connection with duties or functions which are merely optional or permissive, as well as in connection with those m.andatory in character. The rule of nonliability for negligence has been applied or recognized to preclude recovery against school districts, school boards, or similar school agencies for the personal injuries, illness, or death of pupils attending public schools, as well as of other persons, such as teachers, school janitors or janitresses, employee in a school cafeteria, workmen or laborers, persons, other than servants or employees, on school premises for business reasons, such as one making a survey of certain needed repairs to a school building, and an employee of one under contract to remove ashes from school premises, boy scouts, members of the general public invited upon school premises to attend school or other functions upon payment of admission price, speakers or other guests at school or other functions held on school premises for which no admission price was charged, and members of the general public on school premises or elsewhere, such as on public sidewalks, streets, or highways. And the rule of tort im.munity for negligence has been applied or recognized with respect to injuries or damage to private property, as well as in connection with loss caused by unreasonable delay in disposing of condemnation proceedings. With respect to liability for personal injuries or death caused by a wrong other than negligence, judicial statements have been made, for the most part in cases involving negligence, to the effect that the general rule of tort nonliability applies irrespective of the nature of the wrong causing such injuries or death. "'"^ Therefore, prior to the 1950's, there seemed to be almost no action which an education agency, department, board, official, or employee could perform which would cause agency liability damages. ^°^160 A.L.R. 42-48

PAGE 91

83 Court Orde red Ah r ogation in Educ 1 1 1^ o n _C^a ses As stated previou.siy, the Molitor decision changed the steadfast principle of governmental imTiunity. Mr. Justice Klingbiel, in his 1959 Supreme Court of Illinois decision, found no solid basis for the governmental irimunity principle. This ground breaking decision abrogating governmental immunity was an education case. Like Crisp v. Thomas in England, Molitor v. Kaneland is at the spearhead of the abrogation of governmental immunity m.ovement in the United States. This means that educational systems can no longer rely on the protection of governmental immunity since education cases are the precedent-breaking decisions. Education cases are setting the new trend in this field. Application to Education: Political and Fiscal This section is intended to present a series of political and fiscal alternatives that various states are using or are attempting to use in order to deal with the governmental immunity controversy. In t]^e states where governmental immunity has been totally abrogated, education (both local and state agencies) is liable for damages of tortious acts. School districts in these states frequently purchase liability insurance for Supra note SO

PAGE 92

fiscal protection. State fourts of claims frequently hear tort cases and thereby offitr some control of the situation. In the states where governmental immunity has been partially abrogated, education is liable for the categories of claims and the extent of damages allowed in the partial abrogation. Local school districts in these states have tlie appearance of limited protection since they can only be sued in particular circumstances. For these circumstances, most states allow or require their school districts to purchase liability insurance. However, the fact that partial abrogation has occurred in no v/ay prohibits a state court from totally abrogating the state's (or agency's) governmental immunity. In the states where governmental immunity is still in effect and is enjoyed by all state agencies, education is protected from liability suits. In some of these states, however, local school districts still purchase liability insurance for additional protection in high risk situations such as school bus use, field trips, sliop classes, et cetera. It should be pointed out that state courts can, at any time, abrogate this immunity either in total or partially. And since education cases have the tendency to spearhead this abrogation movement, school districts could, at any time, lose their im.m.unity from liability. The fiscal implications of abrogation of governmental immunity are numerous and far reaching. In situations where school systems have suddenly lost their immunity by

PAGE 93

court abrogation, the damaj^iL'S must be paid out of the system's current operating budget. Obv Lou =. ] y , this situation is undesirable since the budget, then, must be reduced and funding of the educational program endangered. To compensate for situations such as this, school systems often use state appropriated funds to purchase liability insurance. This has become a common practice for many school systems throughout the United States. However, some courts have found this practice to be unwise and inappropriate. If tax funds can properly be spent to pay premiums on liability insurance, there seems to be no good reason v/hv they cannot be spent to pay the liability itself. ^"^ While the Molitor decision adds some insight into the problems of purchasing liability insurance, other problems exist in its solution. It would be impossible for local school districts to predict exactly how much damages (if any) they would be paying out in the next fiscal year. It is quite conceivable that the damages may exceed the allotment and consequently create a categorical deficit. If, on the other hand, a school system did not use all the funds appropriated for damage claims, "carrying-over" these funds until the next year might not be possible. Many states have laws prohibiting or limiting "carry-over" accounts. Therefore, the "payas-damages-comein" philosophy is often neither practical or legal . 2 U 8 (-t n Supra note 9

PAGE 94

86 The "savings-accuLint" idea also possesses the same inherent problems as the "carry-over" accounts, so this option is not viable either. Some states have, through legislative action, created a state court of claims. Often, tliese courts of claims are fashioned after the federal Court of Claims. In these instances, the court adjudicates the tort claims and, thereby, is able to exercise some amount of control over the type of claims and the extent of dam.ages . However, school districts cannot count on help from these courts. The purchasing of liability insurance, superficially, at least, seems to be the only practical solution to the fiscal dilemma and is, by far, the most common. Political alternatives offer some possibility of relief. States that do not have courts of claim might be prodded into legislating such courts. States that do not require insurance, might be wise to consider mandating that such insurance be possessed by each local school division. Another alternative is for the creation of a state-wide tort claims account from which damages caused by any state agency could be paid out of. In any event, solutions to the governmental immunity controversy will have to be effective, efficient, and fair.

PAGE 95

87 Summary The implications of the abrogation of governmental immunity movement are substantial. More and more school districts and agencies are finding themselves liable for damages incurred by tortious acts. This increase in liability is directly attributable to the increase in the abrogation of governmental immunity either by court or legislative action. The school district can no longer rely on the, heretofore, steadfast rule of governmental immunity. Avoiding liability suits is particularly difficult since the very nature of the educational process exposes it to more than its share of tortious risks. Fiscal and political alternatives offer limited relief at present, but creative and imaginative administration may open up many new avenues of protection.

PAGE 96

CHAPTER 5 CONCLUSION This study has had three major purposes. It has attempted to demonstrate the following: (1) The origination and the development of the sovereign immunity concept into the English legal system, (2) The transmission or migration of this concept into the United States' legal system, and (3) The evolution of the concept of governmental immunity in the United States, and the application of this concept to education in the United States. Origination It has been shown that the origin of the concept of sovereign immunity had two evolutionary paths. First, the canon law system developed a type of sovereign immunity for its higher level clergy. And second, the feudal system also developed the concept that the lord who made the laws could not be sued under those same laws. These two paths were merged into the early English legal system where the doctrine of sovereign immunity became formalized in case law during the reign of King Henry II.

PAGE 97

8Q Deve lopme nt', j ri Jing Land The doctrine o£ sovereign immunity continued to develop in case law until the reign of King Henry VIII in 1532 when, as a result of his marital difficulties with the Bishop of Rome, he had the royal prerogative established into statutory law. By doing so, he legitimized his immunityeven from Rome. The English law historian Blackstone helped to incorporate this principle into the established legal system 209 in his Commentaries on the Laws of England where he justified the concept of sovereign immunity became "the king can do no wrong. "^^'^ Blackstone 's reputation as a great legal scholar helped to further this principle in the newly formed United States, Transmission of the Principle When the states assumed the responsibility of governmental functions from the earlier colonial governments in 1776, they inherited the prerogative as part of their legal heritage. The endorsement and acceptance of such a medieval concept into the new democratic government defies all rational explanations. It was the same prerogative of 211 sovereignty that the Revolutionary War was fought to abolish. ^'-^^ Supra note 9. ^^°Id note 9. ^-"^^Supra note 3 at 95

PAGE 98

Shortly after the federal Constitution was ratified in 1788, the United States yuprcme Court ruled on an immunity 7 1 7 case in Chisholm v. Georgia . " Wliile finding the state liable for suit in a federal court, the Supreme Court endorsed the concept of sovereign immunity as applied against a state's ov/n residents. The court's rationale for this endorsement of immunity was the famous Blacks tone's Commen taries. No mention of an obscure English case ( Russell v. Men of Devon ) was made. This, therefore, established a case law principle which was apparently founded on Blackstone's Commentaries . Evolution in the United States Shortly after the Chisholm decision, the Eleventh Amendment to the United States Constitution was ratified. This amendment guaranteed absolute governmental immunity to the United States. The federal government partially abrogated its immunity in 1855 with the establishment of a federal court of claims. Ninety-one years later (56 years after England abolished its sovereign immunity) the Federal Tort Claims Act of 1946 totally abrogated the federal government's immunity from liability. The states, however, were still ^-'-^ Supra note 107. Supra note 9 . Supra note 133

PAGE 99

91 clinging to their immunity using the R ussell doctrine as the justification even thougli tIrJs doctrine (which was established in England in 1788) was overruled in England in 1890. It was not until tlie late 1950 's when "a trio of rather spectacular decisions" by state courts began the 215 abrogation movement. The first case of this "trio" was an education case where the doctrine of sovereign immunity was abolished. Within ten years time of these decisions, over 15 states had abrogated (at least partially) their governmental immunity. The data presented in Appendices 1, 2, and 3 details the current status of governmental immunity in the United States. The trend in this movement is clear. State legislatures are gradually abrogating the states' governmental immunity. This abrogation movement is frequently in response to court decisions where legislative abrogation is either required or totally circumvented. The usual mode of abrogation is partial liability with a limitation of the tort categories as well as a limitation of the dam.ages . Frequently, a state court of claims, patterned after the federal court of claims, is established to hear such actions. 215 Supra note 97 at 1124. Alaska, Arizona, Arkansas, California, District of Columbia, Illinois, Indiana, Kentucky, Louisiana, Michigan, Minnesota, Nebraska, Nevada, New Jersey, and Wisconsin.

PAGE 100

9 2 The study conducted by this reseai'cher found only eight states which are attempting to maintain full governmental immunity. On the other hand, only 16 states have total abrogation of their governmental immunity. The rest of the states have some form of partial abrogation of governmental immunity in effect. Data found in Appendices 1, 2, and 3 give specific details on a state-by-state basis . Application of the Governmental Immunity Principle to Education As stated in Chapter 4, the implications of the movement of the governmental immunity principle are great and far reaching. Before the abrogation movement began, educational agencies and local school districts enjoyed the privilege of governmental im.munity. But education soon found itself at the forefront of the abrogation movement. Some courts, which abrogated school district immunity, indicated that the presence or lack of insurance was a moot factor in their 217 decision. In other states, the purchasing of school liability insurance was interpreted by the courts as consent to be sued. This places local school districts in quite a dileinni; . On one hand^ they cannot be certain that the Si'ora note 3 at 93

PAGE 101

93 state's governmental immunity will protect them against liability suits. On the olht.-r liaml, if they attempt to protect themselves by obtaining liability insurance, it can be said that they relinquished their immunity protection. Some courts suggested that instead of paying insurance premiums with state funds that local school districts should use these funds to pay off liability damages instead. However, the amount of these damage claims cannot always be accurately predicted and incorporated into school system budgets. Therefore, this is not a practical solution to this problem. A "savings account" type of solution, ivhere funds \vfill be placed into an account to build up reserves for such damage claims, has been ruled illegal in some states. So this, too, is not a practical solution. This dilem.ma, which education finds itself in, is compounded by the fact that society is becoming much more "legally aware" of their rights and are using the courts m.ore to settle education related controversies. Recommendations Given the above circumstances, the following recommendations are applicable to this study. (1) School systems should not rely on any type of immunity protection against liability suits. Governmental immunity is no longer absolute and realization of this fact may eliminate potential liability problems in the future.

PAGE 102

94 (2) Educational agencies and local school systems should purchase as much (ca tejM^r Leal) liability insurance as possible (and practical) and not rely on the governmental immunity doctrine since education cases are frequently at the spearhead of the abrogation movement. (3) An intensive campaign aimed at enlightening and informing educational officials and employees of their legal liabilities within the scope of their employment may drastically reduce claims which arise from tortious acts. Legal education may provide an element of "extra-care" in potentially tortious situations.

PAGE 103

AppouJLx i STATE DECISIONS LIMITING GOVERNMENTAL IMMUNITY State

PAGE 104

Appendix 1. (continued) 96 State

PAGE 105

Appendix 1 (cont inued) State Decision Michigan Williams v. Citv of Detroit 364 Mich. 231, 111 N.lV. 2d 1 (1961) Minnesota Nieting v. Blondell 235 N.W. 2d 597 (1975), and S-oanel v. Mounds View School District No. 621 264 Minn. 279, 118 N.W. 2d 795 (1962) Mississippi Reed v. Evans ^S . 2d (August 24, 1976) Missouri O'Dell v. School District of Indepen dence 521 S.IV. 2d 403 (1975), V. S. DiCarlo Construction Company, Inc. V. State 485 S.W. 2d 52 (1972), and Wood V. County of Jackson 46 3 S.W. 2d 834 (1971)' Montana No Known Case Law Nebraska Johnson v. Municipal University of Omaha 184 Neb. 512, 169 N.W. 2d 286 (1969) and Brown v. City of Omaha 183 Neb. 430, 160 N.W. 2d 805 (1968) Nevada Rice v. Clark County 79 Nev. 253, 382 P. 2d 605 (1963) New Hampshire No Known Case Law New Jersey W illis v. Department of Conserva T ion and Economic Development 5 5 N.J 5'34 (1970) New Mexico Hicks v. New Mexico State Highway Department 544 P. 2d 1153 (1976) 97

PAGE 106

98 Appendix I (continued) State Decision

PAGE 107

99^ Appendix 1 (continued) State Decision Vii-ginia Wilso n v. State Highway Commis sioner' 174 Va. 82, 4 S.E. 2d 746 (1940) ; Sayers v. Bull ar 180 Va. 222, 22 S.E. 2d 9 (1942), and Lawhorne V. Harlan 214 Va. 40 5 (19 73) Washington No Known Case Law West Virg[inia No Known Case Law V/isconsin Holyt)v. City of Milwauke e 17 Wis 2d 26, 115 N.iv. 2d 618 (1962) Wyoming K ostas Jivelekas v. City of Warland 546 P. 2d 419 The data contained within this table were gathered from two sources. The primary source was a nationwide survey conducted by this researcher during the months of October 1976 to February 1977. Letters were sent to the Attorney General of each state asking for a summary of the status of governmental immunity in their state. The secondary source was used when states' attorneys general did not reply to the survey or did not provide adequate information in their response. The secondary source of information was Soverei gn Immu nity: The Liabilit y o f Government and Its Of fie i als published by the Natilmal Association of Attorneys General", 19 7 5. '

PAGE 108

Appeiul Lx 2 STATE LIABILITY LEGISLATION State Alabama Statutory Provision Coverage Tit. 35, §199 Defense of state militia Alaska §09.50.250 Tit. 26, Ch. 05 §140 Discretionary acts A.G. defend militia Arizona Arkansas §26-159C §41-192.02 !ll-1008 ;12-2901 A.G. defend militia, A.G. has discretion to defend state employees . A.G. defend militia Im.munity doctrine asserted. California §810-99! Public entities open to liability. Colorado §24-10-101 §94-11-46 §72-16-2 Defense of militia. Insurance for state officials Connecticut 165 §3-125 Iiuinunity for state officers and employees . A.G. represents state in suits. Delaware 18 Del. C. ch. 65 Insurance coverage 100

PAGE 109

101 Appendix 2 (continued) Stat e Statutory Pi ovisi on Coverage Florida §95.241, 240.191, State has waived all 284.38, 373.443, governmental immunity 768.14, 768.28, 768.30, and 768.151 Georgia Ga. Const. Art. VI, Establishment of Sect. II, para. X Court of Claims §2-3710 Hawaii

PAGE 110

Appendix 2 (coatiiuicd) 10 2 State Maryland Massachusetts Statutory Provision 19 76 Ch. 4 50 Coverage Ch. 12 §3 Abrogates contractual immunity . A.G. must defend state officials. Michigan Minnesota :4. 678(179) (d) A.G. defends militia. :691.1408 A.G. may defend state officials or employees (1976) Ch. 331 Restricts claims Mississippi Missouri Montana No Statutory Provisions ;105.710 Tort Defense Fund Con. Art. II, §18 Abrogation of immunity §82-4301 Tort Claims Act Nebraska ;81-857 Tort Claims Act Nevada ;41.032 ;81-857 Protects employee's actions Tort Claims Act New Hampshire New Jersey New Mexico ;412:3 Tit. 59-1 Ch. 58 §4-3-16 State may obtain liability insurance. Tort Claims Act Requires insurance. A.G. defends state officers and employees

PAGE 111

Appendix 2 (continued) 103 State Statutory _l*/ilvi?APiL Coveracre New York North Carolina North Dakota §17 Public Officers Law ;143-291 Ch. 295 §54-12-01 Tort Claims Act Tort Claims Act Partial limitation A.G. defends state officers and employees Ohio Oklahoma 2743.01 Tort Claims Act 110,5.1757-1761 Establishes sovereign immunity . Oregon Pennsylvania Rhode Island South Carolina §30.260 Tort Claims Act No Statutory Provisions Tit. 9 Ch. 31 Abolishes governmental tort imimunity. §10-2621-10-2625 Motor Vehicle Tort Claims Act South Dakota Tennessee ;3-19-l §9-801 When officer or employee sued, state may 1) pay or endemnify for cost of defense, 2) pay or endemnify for settlement or judgment. Establishes a Board of Claims

PAGE 112

.04 Appendix 2 (continued) State Statutory Provision Coverage Texas Tit. IIOA, Art. Tort Claims Act 6252-19 Utah §63-30-1 Governmental Immunity Act Vermont Tit. 29 §1403Abrogates immunity 1404 Virginia §21-121 A.G. defends state officials and employees . Washington §4.92.090 A.G. may defend state officials and employees . West Virginia §5-3-2 A.G. defends state officials and employees Wisconsin §285 Limitation of liabil ity Wyoming §1-1018,1 Authorizes liability insurance Trie data contained v;ithin this table were gathered from tvvo sources. The primary source was a nationwide suri/ey conducted by this researcher during tlie months of October 1976 to February 1977. Letters were sent to the Attorney General of each state asking for a summary of the status of governmental imm.unity in tlieir state. The secondary source was used when states' attorneys general did not reply to the survey or did not pro\'ide adequate information in their response. The secondary source of information was Sov^oreign Immunity: The Lia bility of Govern m ent a nd Its Of f 1 cials Dublished by the National Association oT~A?ttorneys GcTi.cr^ri;': 19 75.

PAGE 113

Appendix 3 STATUS OF GOVERNMi'NTAi, IMMUNITY IN THE UNITHl) STATES Alabama Did not respond to the survey. Alaska The State of Alaska has waived sovereign immunity but for discretionary acts, acts in execution of a statute or regulation (exercising due care) , acts imposing a quarantine, and acts constituting intentional torts (other than trespass). AS 09.50.250. There is no immunity vv''hatever for its political subdivisions. The former result is statutory; the latter, judicial. City of Fairbanks v. Schaible, 375 P. 2d 201 (Alaska 1962) .^^ Arkansas Did not respond to the survey. Arizona Mr. John T. Amey , Chief Counsel for the Attorney General of Arizona referenced a document entitled Sovereign 219 Im.munity and the Settlement of Claims Against the State as containing information concerning Arizona's status of governmental immun.ity. Arizona Revised Statutes, Sections 12-821 through 12-826 establish a procedure for bringing an action against the state "on contract or for negligence." 218 Letter from Rodger W. Pegues , Assistant Attorney General, to this researcher, dated October 6, 1976. ^^^J. T. Amey, SOVEREIGN IMMUNITY AND THE SETTLEMENT OF CLAIMS against' THE STATE (1965). 105

PAGE 114

106 Such claims must have been presented to the appropriate state agency and tlisallowed and where the pleadings fail to so allege, the complaint is subject to dismissal since these are conditions which must be met before the court has jurisdiction of the subject matter. State o F Arizona v. Miser , (1937) 50 Ariz. 244, 72 P. 2d 408. A two year statute of limitations applies and the plaintiff must file a bond of not less than $500 to secure the payment of all costs incurred by the state if he fails to recover judgment. If plaintiff recovers a judgment he is entitled to interest from the time the obligation accrued. It is the duty of the Governor to report such judgments to the legislature. But the State Auditor is not authorized to draw his warrant for the payment of such judgment, until the legislature has made its appropriation. In Stone v. Arizona Highway Commission , (1963) 93 Ariz. 384, 381 P. 2d 108, the Arizona Supreme Court abrogated the doctrine of sovereign imm.unity. In so doing, it specifically overruled a line of cases including the Miser case, cited above, upholding the state's sovereign immunity with respect to its torts . In the Miser case, the claimant contended that A.R.S. §12-821, et seq. constituted a waiver by the legislature of the state's sovereign immunity for " negligence ." It was held that while this legislation had provided a procedure for bringing actions against the state for " negligence , " it had not waived the state's substantive defense of sovereign immunity. The Stone decision made no mention of these sections, in abrogating the substantive defense of sovereign immunity, but it roust be presumed that they are still operative.'''''^ California The California Government Code sections 810-998 holds public entities and public employees open to liability. Several main headings include: liability of Public Entities and Public Employees; Claims Against Public Entities; Actions Against Public Entities and Public Employees; Payment of Claims and Judgments; Insurance, and Defenses of Public Employees . "^ "-'^ ^^^Suj^ra note 219 at A2 . 7 21 Letter from Jerry Littman, Chief of Information Services of the Department of Justice of California, to this researcher dated December 13, 1976.

PAGE 115

107 In the landmark decision of the California Supreme Court in M uskopf v. C orniiiiz H ospital District abrogated all public entity governineiitai immunity (see chapter 2) .222 Colorad o Colorado statute §72-16-2 authorizes insurance for state officers and employees . Connecticut Stated briefly, this State enjoys the practical benefit of nearly full sovereign immunity, despite sporadic attempts at piecemeal judicial abrogation. The Connecticut General Assembly has enacted legislation which provides for exclusions from general sovereign immunity in such areas as defective highways and other specific types of claims. I might further call your attention to the establishment of the Connecticut Claims Commission which has the statutory authority to hear certain types of claims against the sovereign State of Connecticut. The Claims Commissioner, under certain circumstances, m>ay grant permission for an individual to sue the State or may actually award damages in situations where there is a limited ad damnum claimed. Of course, it is always possible for a claimant to seek special legislation authorizing suit from any session of the Connecticut General Assembly . '^^•^ Delaware Tlio Dela\Nfare Su]jreme Court recently held that the State had "presumptively waived" its constitutionally based sovereign imm.unity by the enactment of 18 Del . C. ch. 65, "Insurance for the Protection of the State." The case, Pajewski v. Perry , Del. Supr., 365 A. 2d 429 (1976) lias been remanded to the trial court for a 222 Supra note 17 7. "^Letter from Donald M. Longley, Assistant Attorney General of the State of Connecticut, to this researcher dated January 17, 1977.

PAGE 116

108 determination of the t|uestion whether that statute constitutes an effective waiver without supporting insurance coverage. Florida The 1957 landmark case, Hargrove v. Town of Cocoa Beach abrogated governmental immunity in the State of Florida. Through various statutes, §95.241, 240.191, 284.38, 373.443, 768.14, 768.28, 768.30, and 768.151, the state legislature abrogated all governmental immunity. 768.28 Waiver of sovereign immunity in tort actions; recovery limits; limitation op^ attorney fees; statute of limitation; exclusions. (1) In accordance with s. 13, Art. X, State Constitution, the state, for itself and for its agencies or subdivisions, hereby waives sovereign immunity for liability for torts, but only to the extent specified in this act. Actions at law against the state or any of its agencies or subdivisions to recover damages in tort for money damages against the state or its agencies or subdivisions for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of his office or employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant in accordance v/ith the general laws of this state, may be prosecuted subject to the limitations specified in this act. G eorgia By decisions in Crowder v. Departm.ent of State Parks , 228 Ga. 436, 185 S.E. 2d 908 (1971), and Azizi V. Board of Regents , 132 Ga. App . 584, 208 S.E. 73 153 (1974); ibid. 233 Ga. 487," 212 S.E. 2d 627 (1975), 224 Letter from Regina M. Small, Deputy Attorney General of the State of Delaware, to this researcher dated January 6, 1977. ^^^Florida Code §768.28(1).

PAGE 117

109 the doctrine of sovereign immunity appeared to have been firmly confirmed so far as the law of this State was concerned. This feeling of assurance on the part of the State, however, was severely buffeted in the decision in Busbee v. Georgia Conference , AAUP 235 Ga. 752 (1975) , v\fherein a serious inroad was made as to the sovereign immunity of a significant element of State government, to wit, the Board of Regents. In view of this last decision, it must now be assumed that Georgia has no more than a partial sovereign immunity. By an amendment to the Constitution of 1945, ratified in 1974, the Constitution now confers jurisdiction upon the General Assembly to create and establish a court of claims with jurisdiction to try and dispose of cases involving claims for injury or damage other than the taking of private property for political purposes against the State, its agencies or political subdivisions. This amendment now appears in Art. VI, Sect. II, as Paragraph X (Ga. Code Ann., §2-3710). The resolution proposing this amendment appears in Ga. Laws 1973, p. 1489. No action was taken pursuant to this authority by the General Assembly in either 1975 or 1976, although at least two bills were introduced which would create a State Court of Claims. The foregoing represents the present posture of the law however unsettled it might be. Several earlier opinions of the Attorney General do no more than expound upon the basic principles seemingly confirmed in the Crowder and Azizi decisions . "^'^^ Hawaii Sections 661-11 and 662-2 of the Hawaii Revised Statutes reads as follows : §661-11 Tort claims against State limited to insurance coverage. No defense of sovereign immunity shall be raised in any suit where the State is a part defendant and the subject matter of the claim is covered by an insurance policy entered into by the State or any of its agencies. However, the State's liability under this section shall not exceed the amount of, and shall be defrayed by, such insurance policy. (L 1955, c 253, §1; RL 1955, §245-11). Letter from Robert S. Stubbs , II, Chief Deputy Attorney General of the State of Georgia, to this researcher dated October 5, 1976.

PAGE 118

110 §662-2 Waiver and liability of State. The State hereby V\faives its immunity for liability for the torts of its employees aiid shall be liable in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages. If, however, in any case wherein death was caused, the State shall be liable only for actual or compensatory damages measured by the pecuniary injuries resulting from the death to the persons respectively, for whose benefit the action was brought. (L 1957, c 312 pt of §1; Supp, §245A-2). "As revealed by the foregoing, Hawaii's legislature has partially abrogated sovereign immunity in ?2 7 this jurisdiction."'' Idaho Preliminary response recei\'ed from Wayne L. Kidvirell. Attorney General of the State of Idaho on November 1, 1976. However, the comprehensive information requested has never been received. Illinois Article 14, Section 4, of the Constitution of Illinois reads : Except as the General Assembly may provide by law, sovereign im.munity in this State is abolished. The Illinois Constitution was amended in Article 127 §801 as follows : Except as provided in "AN ACT to create the Court of Claims, to prescribe its powers and duties, and to repeal AN ACT herein named," filed July 17, 7 7 7 Letter from Hiromu Suzawa, Deputy Attorney General of the State of Hawaii, to this researcher dated October 8, 1976.

PAGE 119

Ill 1945, as amended, the State of Illinois shall not be made a defendant or pat'ty in any court. j^ndiana Sovereign immunity in Indiana was reduced to its current residual status by a series of court decisions ending with Campbell v. State , Ind. , 284 N.E. 2d 733 (1972). In 1974, the Indiana General Assembly codified this result in the Tort Claims Act, I.e. 34-4-16.5-1 e^ secL. 228 Iowa Iowa possesses partial sovereign immunity as specified in Chapter 25A.14(1) (1975) of the Code of Iowa. The partial abrogation of the state's governmental immunity was inspired by the legislature and not court action. Kansas Prior to January, 1976, Kansas Statutes Article 9 §46-901 provided exhaustive governmental immunity coverage, 46-901. Governmental immunity of state; implied contract, negligence or other tort; notice in state contracts. (a) it is hereby declared and provided that the following shall be immune from liability and suit on an implied contract, or for negligence or any other tort, except as is otherwise specifically provided by statute: (1) The state of Kansas; and (2) boards, commissions, departments, agencies, bureaus and institutions of the state of Kansas; and (3) all committees, assemblies, groups, by whatever designation, authorized by constitution or statute to act on behalf of or for the state of Kansas. (b) The immunities established by this section shall apply to all the members of the classes described. ^Letter from Robert S. Spear, Assistant Attorney General of the State of Indiana, to this researcher dated December 8, 1976.

PAGE 120

112 whether the same are in existence on the effective date of this act or become members of any such class after the effective date of tliis act. (c) The state of Kansas and all boards, commissions, departments, agencies, bureaus and institutions and all committees', assemblies and groups declared to be immune from liability and suit under the provisions of subsection (a) of this section shall, in all express contracts, written or oral, with members of the public, give notice of such immunity from liability and suit. ^-^ However, in a recent judicial opinion, this statute has been declared unconstitutional. Governmental immunity as applied by K.S.A. 46-901 and 90 2 is completely contradictory to the principles on which our government is based--that government exists for the benefit of the people and must be held responsible to them. In 1976, insulating state government at the expense of the personal well-being of the people shocks the conscience. To maintain a system of laws whereby we are individually liable but collectively immune is more than irrational, it is immoral . '^•^^ Kentucky Governm.ental immunity in the Commonwealth of Kentucky is controlled by statutory provisions (1976) §44.070 and §44.160. An attorney general's opinion reports: While the person injured by the State employee may choose to sue the State employee in a circuit court, he also has an alternative remedy of prosecuting against the Commonwealth in the Board of Claims pursuant to KRS 44.070 through 44,160 (for personal injuries). Generally the State is sovereignly immune from suit except where the General Assembly has authorized a means by which claims may be filed against the State. The General Assembly has so authorized recovery under the Board of Claims Act within the limits of that Act. Under KRS 44.160 where a claimant has prosecuted a ^^^K.S.A. §46-901. ^^^Broivn v. Wichita State University 217 Kan. 79 (1976)

PAGE 121

115 claim to an award of judgment under the Board of Claims Act, the claimant would then he precluded from prosecuting against the Commonwealth or i-^s officers or agents or employees in any other forum. -^ employees m any Louisiana Article 12, Section 10 of the 1974 Louisiana State Constitution abrogates total governmental immunity. (A) No Immunity in Contract and Tort. Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property. This state constitutional article is the result of a 1973 tort liability case against the state where the Supreme Court of Louisiana that "(state) boards and agencies are not 232 immune from suits for tort . Maine Did not respond to the survey Maryland Until very recently this state (Maryland) possessed full sovereign immunity except in a few limited situations expressly provided for by statute. However, Chapter 450 of the 1976 Laws of Maryland (copy enclosed) significantly changes the law by providing relief in cases whiCre the state, its agencies or political subdivisions have breached a contractual obligation. An Attorney General's opinion provided in a letter from Thomas R. Emerson, Assistant Attorney General of the State of Kentucky, to this researcher dated December 9, 1976 7 3 7 Board of Commissioners of Port of New Orleans v. S plendor~Shipping and Enterprises Co., Inc. 273 So7 2d 19 (19 7 3) . ' ' ~~ ^ "^Letter from George A. Nilson, Deputy Attorney General of the State of Maryland, to this researcher dated October 8, 1976.

PAGE 122

11Mass a c h u setts Until recently tlie Commonwealth of Massachusetts enjoyed complete immunity from tort liability except to the extent permitted by statute. In Morash v. Commo nwea lth of Massachusetts , 296 N,E. 2d 461, the Supreme Judicial Court partially rejected this rule and held that, even in the absence of a statute allowing such action, the Commonwealth is liable if it creates or maintains a private nuisance which causes injury to the real property of another. However, while pointing out that there are persuasive reasons why the government immunity doctrine that is applicable to the Commonwealth should be abolished, the court felt that such a sweeping change should come from the Legislature, In 1975 the Supreme Judicial Court decision, Hannigan v. The New Gamma Delta Chapter of Kappa Sigma Fraternity , 327 N.E. 2d 882 , again refused to abolish the immunity of the Commonwealth generally point out that the Legislature is currently studying the matter. The court stated that it will continue to refrain from abolishing the Commonwealth's immunity until the Legislature acts or until events demonstrate that it does not intend to act.^^^ Michigan In 1961, the Supreme Court of Michigan abrogated 235 that state's governmental immunity. However, apparently this state's attorney general is unaware of the specifics of the status of sovereign immunity in Michigan. This is in reply to your request for information on Michigan law regarding sovereign immunity. This information is not readily available. In order to adequately respond to your inquiry would require considerable research. Unfortunately, this office does not have the staff to meet your request 7 34 Letter from Louis A. Riyoli, Assistant Attorney General of the State of Massachusetts, to this researcher dated December 16, 1976. ^^^Supra note 181.

PAGE 123

Ill and fulfill its constitutional and statutory duties to state departments and agencies . Regrettably, there (-"ore, I am unable to assist you. I vsrould hope that your own research will be able to provide you with such information. -^^ Minnesota Minnesota Laws 1976, Chapter 331, was enacted by the state legislature and attempts to restrict "the kinds 237 of claims that can be filed against the state." However, "since August 1, 1976, Minnesota has had no sovereign immunity . . . (t)his situation stems from a 1975 court decision" (Nieting v. Blondell) . Mississippi In a recent decision by the Supreme Court of Mississippi, Reed v. Evans S. 2d (August 24, 1976), Mississippi retained full governmental immunity privileges even though there was apparently no statutory provisions which were enacted by the state legislature. Missouri In two recent decisions concerning tort liability, the Supreme Court of Missouri reaffirmed the concept of Letter from Frank J. Kelley, Attorney General of the State of Michigan, to this researcher dated October 11, 1976 7 37 Letter from Michael Saeger, Special Assistant Attorney General of the State of Minnesota, to this researcher dated October 8, 1976. Supra note 235, ^^^235 N.W. 2d 597 (1975) .

PAGE 124

116 240 governmental immunity. In a contractual case, however, 2 4 L this same court found liability. These cases support governmental immunity for tort liability and abrogate governmental immunity for contractual violations. Montan a Article II, Section 18, Constitution of Montana 1972, states: The state, counties, cities, and towns, and all other local governmental entities shall have no immunity from suit for injury to a person or property, except as may be specifically provided by law by a twothirds vote of each house of the legislature. The legislature has not enacted any legislation concerning 242 sovereign immunity. Montana also has a Tort Claims Act as specified in state statute §82-4301. Nebraska In 1969 the Nebraska Legislature passed the Tort Claims Act (§81-857) explained as follows: Our Legislature (Nebraska) in the year 1969 passed a State Tort Claims Act and also a Political Subdivision Tort Claims Act which abrogates sovereign O'Dcll V. School District of Independence 521 S.W. 2d 403 (1975) and Wood v. County of Jackson 463 S.W. 2d 834 (1971). V. S. DiCarlo Construction Company, Inc. v. State 485 S.W. 2d 52 (1972) . 7 4 7 Letter from Robert L. Woodahl , Attorney General of the State of Montana, to this researcher dated October 5, 1976.

PAGE 125

117 immunity as far as tort, liability is concerned in this state within certain limits. Exempt from the acts are claims based upon an act or omission of an employee of the state for failure to perform a discretionary act or function or to perform an act or function in the execution of a statute or regulation. Also exempt are claims arising in respect to assessment or collection of taxes or fees or detention of goods or merchandise by law enforcement officers, claims for the imposition or establishment of quarantine (both as to persons or property), claims arising out of assault, battery, false imprisonment, etc., claims where the employee is covered by workmen's compensation and certain claims of the National Guard which are cognizable under the National Guard Tort Claims Act of the United States. Also, as far as liability for -want of repair of a highway, the state act is limited to such liability as existed for counties prior to the passage of the act. It might also be of assistance to you to know that prior to the passage of the act we had several Supreme Court decisions in this state where the court gave warning that they would by degree abrogate sovereign immunity if the Legislature did not do so, but in the opinion of the Supreme Court the abrogation should come through the Legislature. As above stated, it did so in 1969.^43 Nevada The State of Nevada has partial sovereign immunity In 1965, the legislature vsraived the immunity of its agencies and departments, including its political subdivisions, in all cases except those mentioned in the enclosed Nevada Revised Statute 41.032. There is also a dollar limitation of $25,000 which any single claimant may recover. This limitation is currently under attack as violative of the equal protection clause and the Nevada Supreme Court is expected to rule on its constitutionality within the month. Letter from Harold S. Salter, Deputy Attorney General Claims Division of the State of Nebraska, to this researcher dated October 6, 1976. Letter from James H. Thompson, Chief Deputy Attorney General of tlie State of Nevada, to this researcher dated October 7, 1976.

PAGE 126

118 Nevada statute 41.032 reads thus: 41.032 Conditions and .limitations on actions: Employees' acts or omissions. No action may be brought under NRS 41.031 or against the employee which is: 1. Based upon an act or omission o£ an employee o£ the state or any of its agencies or political subdivisions, exercising due care, in the execution of a statute or regulation, v^hether or not such statute or regulation is valid, provided such statute or regulation has not been declared invalid by a court of competent jurisdiction; or 2. Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of the state or any of its agencies or political subdivisions or of any employee of any of these, whether or not the discretion involved is abused. 245 CAdded to NRS by 1965, 1413; A 1967, 992) New Hampshire Did not respond to the survey. New Jersey The State of New Jersey did enjoy sovereign immunity, both tort and contract law, until court decisions in 1970. In Willis v. Department of Con servation and Economic Development , 55 N.J. 534 (1970), the Supreme Court of our state abolished the common law doctrine of sovereign immunity as it applied to tort cases against the State of New Jersey. It determined that the courts would entertain tort claims against the state effective January 1, 1971. The legislature thereafter determined that they wanted more tiiiie to study the subject and by a series of statutes which can be found in the New Jersey Statutes Annotated at N.J.S.A. 52:4A-1, it extended the effective date of the abolition of sovereign immunity to July 1, 1972, and effective that date, the state ^^^Nevada State Statute 41.032.

PAGE 127

119 adopted a Tort Claims Act which can be found in the Statutes Annotated as Title 59. A copy of that act, which became effective July 1, 1972, is attached to this letter. 24b New Jersey statutes (Annotated) Title 59, subtitle 1-2 describes the attitudes of the new Jersey legislature regarding the abrogation of governmental immunity. 59:1-2. Legislative declaration The Legislature recognizes the inherently unfair and inequitable results \\/hich occur in the strict application of the traditional doctrine of sovereign immunity. On the other hand the Legislature recognizes that while a private entrepreneur may readily be held liable for negligence within the chosen ambit of his activity, the area within which government has the power to act for the public good is almost without limit and therefore government should not have the duty to do everything that might be done. Consequently, it is hereby declared to be the public policy of this State that public entities shall only be liable for their negligence within the limitations of this act and in accordance v>;ith the fair and uniform principles established herein. All of the provisions of this act should be construed with a view to carry out the above legislative declaraction . L.1972, c. 45, §59:1-2.247 New Mexico New Mexico has partial sovereign immunity. Prior to July 1, 1976, governmental subdivisions had no sovereign immunity in areas in which they were insured or in areas involving ministerial functions. The State and its agencies, etc., were not liable wh.ere there is insurance coverage. Letter from Lawrence G. Moncher, Deputy Attorney General of the State of New Jersey, to this researcher dated November 16, 19 76. 247 New Jersey Statute 59:1-2.

PAGE 128

120 Since July 1, 197(,), a Torts Claims Act has been in effect and is in the process of being amended at this time. This Act, ui substance, provided for a requirement for insurance and for tort liability within limits set by the legislation. This Act is Chapter 58, Laws of 1976. It was a result of the decision in Hicks vs. State of New Mexico , ex rel , New Mexico State Highway Department, which is reported in 544 P2d 1153. In substance, this decision held that sovereign immunity insofar as tort was concerned was a creator of judicial creation and abolished it effective July 1, 1976.248 New York Unfortunately, the Attorney General does not have sufficient staff to conduct research and assemble materials for persons who are not officers or department heads of our State government. Hoxvrever, we suggest that sovereign immunity of the State of New York has been statutorily limited by the creation of the Court of Claims. The Court of Claims Act is located in the Judiciary, Part 2, Book 29A of McKinney's Consolidated Laws of the State of New York. 249 North Carolina The doctrine of sovereign immunity, that the State cannot be sued without its consent, has long been the law in North Carolina. The doctrine applied both to contracts and tort actions against the State and its administrative agencies, as well as to suits to prevent a State officer of commission from performing official duties or to control the exercise of judgment on the part of State officers or agencies. In 1951 the General Assembly enacted the Tort Claims Act, which permits claims to be heard by the North Carolina Industrial Commission against the State Board of 2"^ Letter from James V. Noble, Assistant Attorney General of the State of New Mexico, to this researcher dated November 5, 1976. 24^Letter from Ralph D. Comardo , Attorney, State of New York, to this researcher dated October 19, 1976.

PAGE 129

121 Education, the Board of Transportation and all other departments, institutions, and agencies of the State from claims resulting from the negligent act of any officer, employee, servant or agent of tlie State vv'hile acting within the scope of liis office, employment or service. The extent of the liability is $50,000 per claim. In addition, G. S. 143-135.3 authorizes any contractor who fails to receive such settlement as he claims to be due under contract with the State of North Carolina or any board, bureau, commission, institution or agency of the State, or have a hearing before the Director of the Department of Administration and if he is not satisfied with the hearing, he may institute a civil action in the Superior Court of V/ake County. In addition, the North Carolina Supreme Court recently, in the case of S mith v. State , 289 NC 305, held that whenever the State of North Carolina, through its authorized officers and agencies, enters into a valid contract, the State consents to be sued for damages on the contract in the event it breaches the contract, and the doctrine of sovereign immunity will not be a defense to the State. However, the Court further stated that in the event plaintiff is successful in establishing his claim against the State, he cannot, of course, obtain execution to enforce the judgment and the judgment cannot be paid unless the General Assembly specifically authorizes the appropriation therefor. The Legislature has also consented to be sued, G.S, 136-29(b), to allow a road construction contractor to sue if his contract claim is denied by the State Highway Administrator. G. S. 115-142 (n) allows teachers, whose employment has been terminated, to appeal to the Superior Court and G. S. 153A-11 and G. S. 160-11 provide that counties and cities may contract and be contracted with and that they may sue and be sued. In addition, the North Carolina Supreme Court has held that a county hospital is operated as a proprietary function of the county and therefore may be sued in tort for the negligent acts of its employees committed within the course and scope of their employment . See Sides v. Hospital , 287 NC 14, wherein the Supreme Court discussed many situations where a county or municipality may be sued wlien it is engaged in proprietary functions . ^ -''^ 7 50 Letter from James F. Bullock, Senior Deputy Attorney General of the State of North Carolina, to this researcher dated October 4, 1976.

PAGE 130

12; North _nakoj:a The State of North D-ikota enjoys sovereign, immunity pursuant to Section 22 of the North Dakota Constitution, which provides in part tiiat suits may be brought against the State in such manner, in such courts, and in such cases as the Legislative Assembly may, by law, direct. The Legislative Assembly has provided for suit against the State in tort actions only in those instances in which the State has secured liability insurance and then only to the extent of such liability insurance coverage. See Chapter 295, 1975 Session Laws of North Dakota. The political subdivisions of the State enjoyed immunity until it was abolished by a Nortli Dakota Supreme Court decision in December, 1974, v\rith an effective date 'fifteen days following the adjournment of the 1975 Legislative Assembly. See Kitto v. Minot Park District , 224 NW 2d 795 (ND 1974). The Legislature adjourned on March 26, 1975. The obvious purpose of the effective date of the court's decision was to permit the Legislative Assembly to take some action concerning this matter which the Legislature did by the enactment of Chapter 295 of the 1975 North Dakota Session Laws, limiting the liability of political subdivisions as set forth therein. ^^^ Ohio The Ohio statute 2743.01 established a Tort Claims Act. Sub-section 2743.02 describes the limitations of liability. §2743.02 (State waives immunity from liability.) (A) The state hereby waives its immunity from liability and consents to bo sued, and have its liability determined, in the court of claims created in this chapter in accordance with the same rules of law applicable to suits between pri\''ate parties, subject to the limitations set forth in this chapter. To the extent that the state has previously consented to be sued, this chapter has no applicability. (B) The state hereby waives the immunity from liability of all hospitals owned or operated by one 2 51 Letter from Gerald W. VandeWalle, Chief Deputy Attorney General of the State of North Dakota, to this researcher dated October 5, 1976.

PAGE 131

123 or more political subrl Lvis ions and consents for them to be sued, and to have their liability determined in the court o£ common jileas, i.n accordance with the same rules of law applicable to suits between private parties, subject to the limitations set forth in this chapter. This chapter is also applicable to hospitals owned or operated by political subdivisions which have been determined by the supreme court to be subject to suit prior to the effective date of this section. (C) Such hospital may purchase liability insurance covering its operations and activities and its agents, employees, nurses, interns, residents, staff, and members of the governing board and committees. This authority is in addition to any authorization otherwise provided or permitted by law. (D) Awards against the state shall be reduced by the aggregate of insurance proceeds, disabili-ty award, or other collateral recovery by the claimant . '^-'^ Oklahom.a The State of Oklahoma as a sovereignty is immune from suit. However, this immunity is statutorily waived in certain instances. Specifically, 47 O.S. 1971, §§157.1, et seq., relating to motor vehicles owned by the State, allows three state agencies to contract for insurance on vehicles, motorized machinery, or equipment owned and operated by the State Highway Department, State Board of Agriculture, and the State Department of Public Welfare. This statute further provides that "to the extent that the insurer has provided indemnity and the contract of insurance to a department or state agency described in this Section, the said insurer may not plead as a defense in any action involving insurance purchased by the authority of this Section, the governmental im.munity of either the State of Oklahoma or of any department or agency thereof purchasing insurance pursuant to this Section. Similar provisions are found in 11 O.S. 1971, §§1757 and 1761, relating to cities and towns. Of special note is Section 1761 which states: The doctrine of 'governmental immunity from tort liability' is hereby enacted as a rule of statutory law as defined herein applicable to tlie municipality subject to the provisions of this act. ^^^Ohio Code §2743.02.

PAGE 132

124 Thus, in answer to your ciuestions, the State of Oklahoma has sovereign jinmunity witli the exceptions of specific statutory enactments wherein the defense of sovereign immunity is waived. 2^3 Oregon "The legislature of the state of Oregon abrogated its sovereign immunity in part in 1967." The Tort Actions Against Public Bodies Act (§30.260) contains the context of the details. Of particular interest to this study is §30.265. 30.265 Scope of liability of public body for torts . (1) Subject to the limitations of ORS 306.260 to 30,300, every public body is liable for its torts and those of its officers, employees and agents acting within the scope of their employment or duties, whether arising out of a governmental or proprietary function. As used in this section and in ORS 30.285, "tort" includes any violation of 42 U.S.C. section 1983. (2) Every public body is immune from liability for: (a) Any claim for injury to or death of any person or injury to property resulting from an act or omission of any officer, employee or agent of a public body when such officer, employee or agent is immune from liability. (b) Any claim for injury to or death of any person covered by any workmen's compensation law. (c) Any claim in connection with the assessment and collection of taxes. (dj Any claim based upon the performajice of or the failure to exercise or perform a discretionary function or duty, xvhether or not the discretion is abused. Letter from Kay K. Kennedy, Assistant Attorney General of the State of Oklahoma, to this researcher dated November 1, 19 76. Letter from John Leaky, Chief Trial Counsel of the State of Oregon, to this researcher dated October 21, 1976.

PAGE 133

125 (e) Any claim which is limited or barred by the provisions of any other statute. (3) Neither a public body nor its officers, employees, and agents acting within the scope of their employment or duties are liable for injury or damage: (a) Arising out of riot, civil commotion or mob action or out of any act or omission in connection with the prevention of any of the foregoing. (b) Because of an act done or omitted under apparent authority of a la;v, resolution, rule or regulation which is unconstitutional, invalid or inapplicable except to the extent that they would have been liable had the law, resolution, rule or regulation been constitutional, valid and applicable, unless such act i\ras done or omitted in bad faith or vv'ith malice. (4) ORS 30,260 to 30,300 do not apply to any claim against any public body or its officers, employees or agents acting within the scope of their employment arising before July 1, 1968. Any such claim may be presented and enforced to the same extent and subject to the same procedure and restrictions as if ORS 30.260 to 30.300 had not been adopted. (5) The amendments to ORS 30.270 and 30.285 enacted by chapter 609, Oregon Laws 1975, do not apply to any claim against the state or its officers, employees or agents acting within the scope of their employment or duties, arising before July 2, 1975. Any such claim may be presented and enforced to the same extent and is subject to the same restrictions as if chapter 609, Oregon Laws 1975, had not been adopted, but the procedure set forth in ORS 278.120 shall be applicable thereto . Pennsylvania Pennsylvania does have full sovereign immunity. There are however, occasions when the legislature has seen fit to permit recovery from the Commonwealth in very limited circumstances. For example, we have the State Board of Arbitrations and Claims which permit private citizens to recover funds from the Commonwealth in the event of a breach of contract on the part of the Commonwealth. There are other minor exceptions to the sovereign immunity rule, however, in nearly every instance. |;he Commonwealth does have full sovereign immunity . "'^^ 2 5 S "Letter from Jeffrey G. Cokin, Deputy Attorney General of tiie State of Pennsylvania, to this researcher dated October 20, 1976.

PAGE 134

126 Rhode T slaiiJ Did not respond to the survey. South Carolina South Carolina has full sovereign immunity except in those instances ^vhere it has waived it by statutory enactment. Suit may be brought in tort against certain agencies of the State, such as the State Highway Department, counties and cities, and recovery of damages made in limited amounts. A general motor vehicle tort law relating to government-owned vehicles is also in effect and is of recent vintage. Generally efforts to abrogate the rule of sovereign immunity have been expressed in terms of legislative encroachments and the doctrine has been attacked in the courts , but always without success.'^-'" South Dakota Did not respond to the survey. Tennessee "Tennessee is still immune from suits with a view to reach the treasury of the state. Claims against ?5'7 Tennessee are filed with the Board of Claims."" ' S-812 describes the details of the Board of Claims Act. 9-812. Injuries and Property Damage Arising from Negligence of State Em.ployees . -Said board of claims is vested with full power and authority to hear and determine all claims against the state for personal injuries or property damages caused by negligence in Letter from Daniel R. McLeod, Attorney General of the State of South Carolina, to this researcher dated October 6, 1976. 7 c 7 Letter from Weldon B. White, Jr., Assistant Attorney General of the State of Tennessee, to this researcher dated October 7, 19 76.

PAGE 135

127 the construction and/or maintenance of state highways or other state buildings and properties and/or by negligence of state officials and employees of all departments or divisions In the operation of stateowned motor vehicles or ot'ncr state-owned equipment while in the line of duty, its awards under this section to be paid out of the general highway fund in the case of claims arising from the negligence of employees of the department of highways and public works and out of the general fund in the case of claims arising from negligence of employees of all other departments . Any settlement or award made by said board shall be made only after a careful and thorough investigation and examination of all facts and circumstances in controversy and no award or settlement shall be made unless the facts found by said board of claims establish such a case of liability on the part of a department or agency of the state government as would entitle the claimant to a judgment in an action at law, if the state were amenable to such. Said Board of Claims is vested v/ith full power and authority to hear and determine all claims against the State based upon, or arising out of, any written contract executed as prescribed by law on behalf of any Department of the State, and its awards, if any, under this section are to be paid out of funds of the Department in each case available for the performance of the contract. (Acts 1965, ch. 218.) The provisions of this section shall apply only to claims against the state arising from the performance of functions of its various departments and agencies imposed upon them by law where in such performance said departments have exclusive control of the personnel and equipment involved. (Acts 1945, ch . 73, 15; C. Supp. 1950, §1034.5 (Williams, §1034.30) Texas The State of Texas has partial governmental immunity as specified in the Texas Tort Claims Act (6252-19) Liability of governmental units Sec. 3. Each unit of government in the state shall be liable for money damages for personal injuries or death when proximately caused by the negligence or wrongful act or omission of any officer or employee acting within the scope of his employment or office arising from the operation or use of a motor-driven

PAGE 136

128 vehicle and motor-driven equipment, other than motor-driven equipment used in connection with the operation of floodgates or v\fater release equipment by river authorities created under tht: laws of this state, under circumstances where such officer or employee would be personally liable to the claimant in accordance with the law of this state, or death or personal injuries so caused from some condition or some use of tangible property, real or personal, under circumstances \Nfhere such unit of government, if a private person, would be liable to the claimant in accordance with the law of this state. Such liability is subject to the exceptions contained herein, and it shall not extend to punitive or exemplary damages. Liability hereunder shall be limited to $100,000 per person and $300,000 for any single occurrence for bodily injury or death. Waiver of sovereign immunity Sec. 4. To the extent of such liability created by Section 3, immunity of the sovereign to suit, as heretofore recognized and practiced in the State of Texas with reference to units of government, is hereby expressly waived and abolished, and permission is hereby granted by the Legislature to all claimants to bring suit against the State of Texas, or any and all other units of government covered by this Act, for all claims arising hereunder. Utah The State of Utah has five specific "waivers of im^munity" as sub-sections of the Governmental Immunity Act (§63-30-1) which partially abrogates governmental immunity in the state. 65-30-5. Waiver of immunity as to contractual obligation. -Immunity from suit of all governmental entities is waived as to any contractual obligation and actions arising out of contractual rights or obligations shall not be subject to the requirements of sections 63-30-12, 63-30-13, or 63-30-19 of this act . 63-30-6. Waiver of immunity as to actions involving property. Construction and application. The waiver of immunity from suit "for the recovery of any property real or personal or for the possession thereof" does not include an action for damages for impairment of access to property caused by construction of

PAGE 137

129 highway underpass; this act sliould be strictly construed to preserve sovereign iiiiinunity and to waive it only as clearly expressed therein. Molt v. Utah State Road Comm . , 30 U. (2d) 4, 511 PT2d 12S6. 63-50-8. Waiver of immunity for injury caused by defective, etc. Discretionary function. Power of public service commission under 54-4-14 to require public utility to construct and maintain appropriately safety devices at grade crossings is a discretionary function, and 63-30-10 excepts the commission from waiver of immunity for injuries caused by failure to require warnings at crossing. Velasquez v. Union Pacific R. Co. , 24 U. (2d) 217, "469 P. 2d 5. Negligent construction. Where university construction diverted floiv of surface water flooding basement and causing other damage to adjoining landowner, governmental immunity was waived and university v/as liable to landowner. Sanford v. University of Utah , 26 U. (2d) 285 A88 P.2d~741. New duties not created. This section did not create any new duties but merely waived immunity, and since county had no duty to correct conditions on private property that obstructed motor bike driver's view of county roads it could not be held liable for driver's injuries caused as result of obstruction. Stevens v. Salt Lake County , 25 U. (2d) 168, 478 P. 2d XW. 63-30-9. Waiver of immunity for injury from dangerous or defective public building, etc. Legislative intent. Intent of legislature v/as to include within the v\raiver of immunity an action for private nuisance in so far as the action is predicated on a dangerous or defective condition of a public improvement that unreasonably interferes with the vise and enjoyment of the claimant's property. Sanford v. University of Utah , 26 U. (2d) 285, 488 P. 2d 741. Negligent construction. Where university construction diverts flow of surface water flooding basements and causing other damage to adjoining landowner, governmental immunity is vv'aived and university was liable to the owner. Sanford v. University of Utah , U. (2d) 2 85, 488 P. 2d 741. 63-30-10. Waiver of immunity-Inj ury caused by negligent act or omission of employee-Except ions .Immunity from suit of all governmental entities is waived for injury proximately caused by a negligent act or omission of an employee committed within the scope of his employment . '^^^° ^^^Sections 63-30-5 to 63-30-10 of Utah's civil code

PAGE 138

130 Ve rinont Title 29, Vermont Statutes Annotated, sections 1403-1404 provide for abroj^ation of governmental immunity by the State of Vermont. §1403. Waiver of immunity by state, municipal corporations and counties. When the state or a department or board purchases a policy of liability insurance under the provisions of section 1401 of this title, and when a municipal corporation purchases a policy of liability insurance under section 1092 of Title 24, and when a county purchases a policy of liability insurance under the provisions of section 131 of Title 24, it waives its sovereign immunity from liability to the extent of the coverage of the policy and consents to be sued. --Added 1959, No. 328 (Adj. Sess.) §14. §1403. Waiver of immunity by state, municipal corporations and counties. 1. Generally. Section 1092 of 24 V.S.A. does not impose an absolute duty on city to carry liability insurance on its motor veliicles and drivers but if there is insurance coverage the defense of governmental immunity is not available to the municipality since it is waived by provisions of this section. Medlar v. Aetna Insurance Company (1968) 127 Vt. 337, 248 A. 2d 740. §1404. Judgments, maximum liability. Upon trial of any action in which sovereign imm.unity has been waived, as provided in section 1403 of this title, a judgment shall not be rendered against the state of Vermont, a department or board thereof or a municipal corporation or county for more than the maximum amount of liability insurance carried by it and applicable to the subject matter of the action. Added 1959, No. 328 (Adj. Sess.), §14. Virginia The General Assembly (of Virginia) commissioned a committee to give consideration to the abrogation of certain aspects of sovereign immunity. That committee rendered a report in January, 1975, making certain recommendations with regard to waiver of certain governmental immunities. That report has not been acted upon through tlie sponsoring of legislation in either the 1975 or 1976 General Assembly. I do not know whether any attempts will be made to alter the present law of sovereign immunity in upcoming sessions.

PAGE 139

131 Several cases which would be of interest to you with regard to governmental immunity in Virginia are Wilson V. State Highway Co mmissioner , 174 Va. 82, 4 S7E.2d 746 (1940); Say el-s v. Bullar , ISO Va. 222, 22 S.E.2d 9 ri942), and L awhorne v. Harlan , 214 Va . 405 (1973). 259 Washington The State of Washington does not have governmental inununity as §4.92.090 illustrates. 4.92.090 Tortious conduct of state-Liability for damages. The state of V^'ashington , whether acting in its governmental or proprietary capacity, shall be liable for damages arising out of its tortious conduct to the same extent as if it were a private person or corporation. (Amended by Laws 1963 ch 159 s2.) West Virginia Did not respond to the survey. Wisconsin Wisconsin statute §285.01 defines the limitations of liability for that state. 285.01 Actions against state;bond. Upon the refusal of the legislature to allow a claim against the state the claimant may commence an action against the state by service as provided in §262.06 (3) and by filing with the clerk or court a bond, not exceeding $1,000 i\?ith 2 or more sureties, to be approved by the attorney general, to the effect that the claimant will indemnify the state against all costs that may accrue in such action and pay to the clerk of court all costs , in case the claimant fails to obtain judgment against the state. 7 c, q '^ Letter from Stuart H. Dunn, Deputy Attorney General of the State of Virginia, to this researcher dated October 5, 19 76.

PAGE 140

132 Wjoinlng (T)he doctrine of sovereign immunity is very much alive in this State. However, the Wyoming Legislature in 1975 passed a statute, 1-1018.1 which authorized the agency of government to purchase liability insurance and to the extent that such insurance was obtained, sovereign immunity v\?as waived to the extent of that liability. Whether or not such liability insurance was obtained was left at the option or discretion of the agency or political entity. No change has been made in the statutory status of sovereign immunity except that the V/yoming Supreme Court and particularly Justice Rose wrote a lengthy opinion in the case of Kostas Jivelekas v. City of Worland , 546 P. 2d 419 which perhaps indicates what the future of this doctrine may be in Wyoming, at least insofar as one member of our Court is concerned. ^"^ Letter from Charles J. Carrol, Deputy Attorney General of the State of Wyoming, to this researcher dated October 4, 1976.

PAGE 141

BIBLLOflRAPflY Articles and Books Alc:c.aiider, Kern; Corns, Ray; and McCann, Iv'alter. Pub lic S chool Law. St. Paul, Minn.: West Pub. Co., 1969. Alexander, Kern and Solomon, Erwin S. College and U nive rsity Law . Charlottsville , Va.: The Michie Co., 19 7 :: . AiT.ey, J.T. Sovereign Immunity and the Settlement of Claims Against t.he State . Washington, D. C: Highway Research Board, 1965. Black 's Law Dictionary , 4th Edition. St. Paul, Minn.: 17est Publishing Co., 1972. B 1 a c 1; s t o n e , William. An Analysis of the Laws of En gl and . Oxford, England: Uni\Aersity of Oxford Press, 1758. Commentaries on the Laws of England. St. Paul, Minn.: West Publishing Co., 1897. Borchard, Erwin M. "Government Liability in Tort," .34 YALE L. J. 19?S. Bracton, Trac tatus de Legibus , Maitland ed. London: C.J. Clay~li Sons, 188 7. Chapman, Stephen. Statutes on the Law of Torts . London: Butterworths , Inc., 1963. Garber, Lee 0. O rigin of the Governmental Immun ity From Tor t Doctrine . Danville, 111.: The Interstate Printers and" Pub . , 1964. Hamilton, Alexander; Madison, James; and Jay, John. Tlie Federalist Pa pers . New York: Mentor Books, 1961.. Fioldsworth, Vvilliam. A Hist ory of English Law, Vol. I. Washington, D. C: Lawyei-'s Literary Club, 1959. Jacobs, Clyde E. The Eleventh Amen dmen t and Sovereign I mmunity V/c'Stport, Conn,.: Greenwood Press, Inc., 1972. JoT!.es , Gaioth. The Sover eign ty of the Law. Toroivto , Canada: University cTf Toronto Press, 1973.

PAGE 142

134 Keir, D.L. and Laws on, F.H. Cases in Constitutiona l Law . Oxford, England: Clarendon Press , 1967 . Levine, Alan; Carey, Ev^e; and Divoky, Diane. The Rights of Students . New York: Avon Books, 1973. Maine, Henry. Ancient Law , Frederick Pollock, ed. London: John Murray, 19 30. Ogle, Arthur. The Canon Law in Mediaeval England . London: John Murray, 1912. Pollock, Sir Frederick and Maitland, Frederick William. History of English Law , Volume I. Washington, D. C: Lawyers' Literary Club, 1959. Prosser, William L. Law of Torts . St. Paul, Minn.: West Publishing Co. , 19 71. Prosser, William L. and IVade , John W. Torts: Cases and Materials . Mineola, N.Y.: The Foundation Press, Inc., 1971. Sovereign Immunity: The Liability of Government and Its Officials . The National Association of Attorneys General, 1975. Winfield, Percy. The Chief Source of English Legal History, 1925. — — . Cases Bank v. Brainerd School District 49 Minn. 106, 51 N.W. 814 (1892)"^ ~ Barker v. City of Santa F e 47N.M. 85, 136 P. 2d 480, 482. Brown v. Austin 1 Mass. 20 8 (18 04). Brown v. Wichita Stat e University 217 Kan. 79 (1976). The C ase of the King's Prerogative in Saltpetre 12 Co. Rep, i 2 [ 1 6 7 ) . C hisholm v . G e orgia 2 U.S. (2 Dallas) 419 (1795). Clark V. Little, Jolmson, and Webber 1 Smith 100 (1805).

PAGE 143

135 Cohens v. Virginia 19 U.S. 170 (1804). Crisp V. Thomas 63 L.I.N.S. 756 (1890). Dartmouth College v. Woodward 4 Wheaton 517 (1819). Dunn V. Brown County Argi. Soc. 46 Ohio St. 93, 18 N.E. 496, 1 L.R.A. 754, 15 Am. St. Rep. 556 (1888). Elmore v. Drainage Commissioners 135 111. 269 (1890). Ferris v. Board of Education 122 Mich. 315, 81 N.W. 9 8 (1899) . Fi nch V. Bo a rd of Education 30 Ohio St. 37, 2 7 Am. Rep. 414, (1896). First National Bank v. National Surety Co. 228 N.Y. 469, 127 N.E. 4 78. Ford V. Kendall School District 121 Pa. 543, 15 A. 812, 1 L.R.A. 607 (1888) . Free l v. Crawf ordsville 142 Ind. 27, 41 N.E. 312, 37 L.R.A. 301 (1895). Granger v. Pulaski County 26 Ark. 37 (18 70). Har grave v. Town of Cocoa Beach 96 So. 2d 130 (1957). Holytz V. City of Milwaukee 155 N.W. 2d 618 (1962). Hurlburt v. Marsh and the Town of Litchfield 1 Root 520 ~~ [T79 3) . Kincaid v. Hardin County 53 Iowa 430, 5 N.W. 589, 36 Am. St. Rep. 236 (1880). Kiniiarc v. Chlcaoo 171 111. 552, 49 N.E. 556 (1898). Lan e v. Woodbury 58 Iowa 462, 12 N.W. 478 (1882). Little V. Barrem e 2 U.S. 170 (1804). Lobdell V. Inhabitants of New Bedford 1 Mass. 153 (1804). McKcn na v. Ki mball 145 Mass. 555, 14 N.E. 789 (1888). Macbeath v. Hal dmond 1 T. Rep. 172.

PAGE 144

13G Maccubbln v. Thornton 7Md.461(1807). Mersey Trustees v. Gibbs L.R.I, H . L . 93 (1866). Molitor V. Kaneland Community Unit Distr ict No. 302 18 111 2d 11, 163 N.E. 2d 89 (1959) .~ M ower v. Inhabitants of Leicester 9 Mass. 24 6 (1812). Muskopf V. Cor ning Hospital District 359 P. 2d 457 (1961). Nic hols V. United States 74 U.S. (7 Wallace) 122 (1869). Nieti n g v. Blondell 235 N.W. 2d 597 (1975). O'Dell V. School District of Ind e pendence 521 S.W. 2d 403 (1975) . Reed v. Evans S. 2d (1976). Rock Island Lumber and Mfg. Co. v. Elliott 59 Kan. 42, 51 P. 894 (1898) . Russell V. Men Dw ell ing in Devon 100 Eng . Rep. 359 (1788). Sheldon v. County of Litchfiel d 1 Root 158 (1790). The Siren 74 U.S. (7 Wallace) 152 (1869). Spanel v. Mounds View School District No. 621 188 N.W. 2d 795 (1962) . State V. Commissioners of the Levy Court 2 Del. Cases 85 (1797) . V.S. DiCarlo Construction Company, Inc. v. State 48 5 S.W. 2d 52 (1972) . Will et V. liutcliinsou, Toim Clerk 2 Root 85 (1794). Williams v. City of Detroit 111 N.W. 2d 1 (1961). Wood V. County of Jackson 463 S.W. 2d 834 (1971). Statutes and Miscellaneous Law References XXV Henry VIII, c. XXI. XXIV Henry VIII, c. XII fj c. XIX.

PAGE 145

13; 23 Victoria 1, c. 34. 56 Victoria 1, c. 61. 2 Elizabeth 2, c. 36. 28 U.S.C.A. §1346, §1402, §1504, §2110, §2401, §2411, §2412, §2671-2680. 38 American Jurisprudence, Mun. Corps., §573 di 266. 160 American Law Reports United States Constitution

PAGE 146

BIOGRAPxHICAL SKETCH Eugene T. Connors was born in Washington, B.C. in 1949, the son of Mr, and Mrs. Eugene T. Connors. Graduating from Glenelg High School in rural Maryland, he attended the University of Maryland, Baltimore County for four years and graduated in 1971 with majors in English and drama and a ininor in education. He immediately entered graduate school at Virginia Commonwealth University in Richmond, Virginia. In 1973, he v;as awarded a Master of Fine Arts degree withi a major in dramatic design. Also during this time, Eugene Connors was teaching high school English in inner -city Richmond, Virginia. In August, 1974, he v;as made special assistant to the area superintendent of the Richmond City Schools. In September of 1974, Eugene Connors also entered the Master of Education degree program at Virginia Commonwealth Uaive..'si ty v;ith a major in adm.inistration and supervision and special emphasis in the area of school Law. Graduating from Virginia Commonwealth University with a Master of Education degree in May, 1975, he immediately moved to Gainesville, Florida, to work on his doctorate in Educaciona] Administration at the University of Florida. In A'.igust, 1976, Eugene Connors finislied his course work for his Doctor of Philosophy degree and gained a position of Assistant Professor of Educational Law and Finance at James Madison University in Hcirrisonburg , Virginia. During the 1".S

PAGE 147

139 first year at "Madison," Eugene Connors finished work on his dissertation as well as publisliing three articles in editorial board journals. "Legal Entanglement of Reading Diagnosis Procedures" is scheduled for publication in the January, 19 78 issue of the JOURNAL OF READING. The TEXAS TECH LAW REVIEW will publish his article "Governmental Immunity: Implications for Public Education" in their fall, 1977, issue; and the journal EDUCATION TECHNOLOGY, will publish Eugene Connors' article "Technological Forecasting: An Overview for Educators" in their fall, 1977, issue. Eugene T. Connors plans to remain at James Madison University for the 19 77-78 academic year.

PAGE 148

I certify that I have read this study and that in my opinion it conforms to acceptable standards of scholarly presentation and is fully adequate, in scope and quality, as a dissertation for the degree of Doctor of Philosophy. S'. K^rrT Aldlfand^r, Cha^irman~ Professor of Educational Administration 1 certify that I have read this study and that in my opinion it conforms to acceptable standards of scholarly presentation and is fully adequate, in scope and quality, as a dissertation for the degree of Doctor of Philosophy. John M. Nickens Assistant Professor of Educa tional Administration I certify that I have read this study and that in my opinion it conforms to acceptable standards of scholarly presentation and is fully adequate, in scope and quality, as a dissertation for the degree of Doctor of Philosophy. 14)JP^ William B. Ware Professor of Foundations of Education I certify tliat I liave read this study and that in my opinion it conforms to acceptable standards of scholarly presentation and is fully adequate, in scope and quality, as a dissertation for tlie degree of Doctor of Philosophy. L el a n"3 /Tk. Zimm e r ma n Profes'^sor of Theatre

PAGE 149

Th.is dissertation \-ias submitted to the Graduate Faculty of the Department of Education Administration in the College o£ Education and to the Graduate Council, and was accepted as partial fulfillment of the requirement for the degree of Doctor of Philosophy. December, 19 7 7 Dean, Graduate School

PAGE 150

UNIVERSITY OF FLORIDA 3 1262 08552 9567