Talk:Sovereign immunity

Middle Ages

The passage from Pope Gelasius appears totally irrelevant to me - it is plainly about the submission of the crown authority to that of the Church. There is no mention of immunity, sovereign or otherwise, explicit or implied. —Preceding unsigned comment added by 210.84.5.185 (talk) 01:04, 7 September 2010 (UTC)

Needs improvement

As it presently stands, this article is a rather sloppy treatment of an important subject. Needs discussion of such issues as why this monarchical doctrine was adopted in our republic; history of the Supreme Court's development of the doctrine; etc. —Preceding unsigned comment added by 173.16.41.200 (talk) 14:28, 10 September 2008 (UTC)

Additionally, the concept of sovereign immunity, while established precedent, gives rise to controversy because of its essential claim that the government is above the law. I believe that mention of this controversy (such as played out in Blueport v. United States, a copyright-infringement case) would be worthwhile. chrylis (talk) 01:03, 6 October 2008 (UTC)

Added small comment to the effect that early state constitutions rejected the doctrine of sovereign immunity, by declaring that inhabitants had the right to seek remedy for all wrongs done them. As to why it has a place in current law, it has more to do with those in power protecting themselves from prosecution then anything else. Those that make the law, will obviously try to shield themselves using laws of their creation68.163.98.56 (talk) 23:46, 24 March 2009 (UTC)

I'm going to remove this, I'm afraid, because it runs aground on WP:NPOV and WP:OR; the theory that the evidence supports the conclusion is POV editorializing. The quote from the Massachusetts constitution you provide says only that "[e]very subject of the commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character." While that could be interpreted to reject sovereign immunity, it need not be (frankly, without citation of caselaw, I don't think it's a very credible interpretation, but that's neither here nor there). When the source does not speak to the point on its face, construction is required, and here at WP, that means original research. To be sure, if this argument has been made by a reliable source - a federal jurisdiction scholar in a book or journal, for example - that would certainly be worth mentioning; even then, however, it should be phrased as "Professor ___ argues that..." not "it is a fact that..." - Simon Dodd { U·T·C·WP:LAW } 14:41, 25 March 2009 (UTC)

There are may parts to sovereign immunity, states are immune from suit by citizens of another state per the 11th Amendment

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

But that does not mean they are immune to suits from their own citizens brought forth in their own state courts. I believe that the 11th Amendment applies only to federal courts anyway. They have jurisdiction over all suits between states, or citizens of one state suing another state.

per this link only Virginia still claims sovereign immunity. http://www.anusha.com/amend-11.htm

Massachusetts by law allows compensator damages for civil rights violations made under "color of law" See MGL Chapter 12 Section 11H and 11I below

Chapter 12: Section 11H. Violations of constitutional rights; civil actions by attorney general; venue

Section 11H. Whenever any person or persons, whether or not acting under color of law, interfere by threats, intimidation or coercion, or attempt to interfere by threats, intimidation or coercion, with the exercise or enjoyment by any other person or persons of rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth, the attorney general may bring a civil action for injunctive or other appropriate equitable relief in order to protect the peaceable exercise or enjoyment of the right or rights secured. Said civil action shall be brought in the name of the commonwealth and shall be instituted either in the superior court for the county in which the conduct complained of occurred or in the superior court for the county in which the person whose conduct complained of resides or has his principal place of business.

Chapter 12: Section 11I. Violations of constitutional rights; civil actions by aggrieved persons; costs and fees

Section 11I. Any person whose exercise or enjoyment of rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth, has been interfered with, or attempted to be interfered with, as described in section 11H, may institute and prosecute in his own name and on his own behalf a civil action for injunctive and other appropriate equitable relief as provided for in said section, including the award of compensatory money damages. Any aggrieved person or persons who prevail in an action authorized by this section shall be entitled to an award of the costs of the litigation and reasonable attorneys’ fees in an amount to be fixed by the court. 68.163.98.56 (talk) 20:11, 25 March 2009 (UTC)

Florida law states ( this is a partial listing, the rest includes limits on damages and I'm not including it due to space limitations.) http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0768/Sec28.HTM

5) The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period before judgment. 68.163.98.56 (talk) 20:25, 25 March 2009 (UTC)

That's nice, but it's original research, and it's original research that does little more than refight the losing side of the Alden trilogy. It would be bad enough for the article to present as current doctrine a view of sovereign immunity that is based on original research, but worse yet for that view to be a conception that the court has rejected! The primary sources you cite are the raw materials of an argument, but they are not conclusive as to your position in themselves (regardless of the merits vel non of that position), and at Wikipedia, the necessary jump from these materials to the conclusion you're driving at is not allowed. (I will note that while you can probably find a way to get this argument into the article in an appropriate manner - cannibalizing Justice Souter's excellent Alden dissent, perhaps - my own view is that you're really on the wrong tracks in how you're thinking about sovereign immunity, both as a doctrinal and original matter, and I think you're asking the evidence you've adduced to do much more work than it can bear. Just my two cents.)- Simon Dodd { U·T·C·WP:LAW } 01:01, 27 March 2009 (UTC)

Critique section: cities claiming immunity

user:24.211.157.189 added an observation that "[m]any cities continue to cite sovereign immunity in cases where city officials partake in negligent acts causing damage to citizens." But the Supreme Court has held -- as this article acknowledges -- that only states and their arms can claim sovereign immunity. See Jinks v. Richland County, 538 U.S. 456 (2003); Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 401 (1977) ("the Court has consistently refused to construe the [Eleventh] Amendment to afford protection to political subdivisions such as counties and municipalities, even though such entities exercise a "slice of state power").

Of course, there is a manifest difference between saying that the Supreme Court does not recognize sovereign immunity claims by municipalities, on the one hand, and on the other, denying user:24.211.157.189's assertion that municipalities continue to cite it (no matter how futilely) as a defense. However, assertions in wikipedia should cite sources when it is "material that is challenged or likely to be challenged," and is "especially important when writing about opinions held on a particular issue" (any text under the heading "Critique of sovereign immunity" is per se within the latter category), see [1]; surely this incumbency applies a fortiori when the assertion in question has been specifically refjected, time and time again, by the Supreme Court of the United States.

For the foregoing reasons, I have reverted user:24.211.157.189's edit without prejudice, and note that if the assertion is replaced, it should be supported by either primary source examples, or secondary sources citing specific examples. Simon Dodd 14:22, 4 April 2007 (UTC)

Bankruptcy

Katz did not hold that the bankruptcy clause in Article I allows Congress to strip states of sovereign immunity. This result is foreclosed by Seminole Tribe, of course. Katz makes the sneaky argument that bankcruptcy proceedings don't implicate sovereign immunity at all.

The deleted sentenced didn't say it gave Congress that power. If the sentence was ambiguous, don't you think the remedy should have been to clear it up instead of strike it all together?

Katz: "In bankruptcy, 'the court's jurisdiction is premised on the debtor and his estate, and not on the creditors.' ... As such, its exercise does not, in the usual case, interfere with state sovereignty even when States’ interests are affected. ... [B]ecause the [bankruptcy] proceeding was merely ancillary to the Bankruptcy Court’s exercise of its in rem jurisdiction, we held [in Hood] that it did not implicate state sovereign immunity ... And it [the power to authorize courts to avoid preferential transfers and to recover the transferred property], like the authority to issue writs of habeas corpus releasing debtors from state prisons, see Part IV, infra, operates free and clear of the State’s claim of sovereign immunity. ... Neither our decision in Hood, which held that States could not assert sovereign immunity as a defense in adversary proceedings brought to adjudicate the dischargeability of student loans, nor the cases upon which it relied rested on any statement Congress had made on the subject of state sovereign immunity. Nor does our decision today. The relevant question is not whether Congress has 'abrogated' States' immunity in proceedings to recover preferential transfers." Amcfreely 15:20, 26 January 2006 (UTC)

Let me try to be as clear as I possibly can. The sentence you removed from the Wikipedia article did not say that Katz held the Bankrupty Clause gave Congress the power to abrogate state sovereign immunity. In the future, please consider making edits for the purpose of improving the article, rather than for the purpose of showing how smart you are or how "sneaky" the Supreme Court was.

Sovereign Immunity

There is some confusion in the article between the Sovereign and the Crown. In the UK, the Sovereign is the Queen, and the Crown is the (originally regal) power used on her behalf by the Government. While the Crown is thus protected by the laws and conventions of Sovereign Immunity, it often comes as some surprise, especially to those of us mistaken in the belief that we live in a free and fair democracy, that so is the Queen, personally herself immune from all State prosecution. This was borne out by the investigations in the Paul Burrell trial of 2002. The Sovereign cannot in law be compelled to come to justice, because all legal authority flows from her. Nuttyskin 13:13, 13 September 2006 (UTC)

However, in America, constitutional democratic republic, the people are the sovereign authority and not the govt. This is empasized in the "Federalist Papers". The idea of Judicial Immunity doesnt exist legally in the United STates. It is another "doctrine" or false premise or rule created by judges who are without authority to create doctrine that is used by court as if it were law! It is contrary to the Constitution and as Hamilton said, and act that is contrary to the Constitution is void on its face!

Thus it is the people who have rights and not govt and it is the people who determine who and what has immunity. We did grant a limited legal immunity to Congressmen from arrest while traveling to Congress (hence a drunken Cong. Kennedy claimed he was going to a Congressional meeting in the middle of the night when confronted by police). But we never granted immunity to courts or judges, and gave no branch of govt the authority to create or grant immunity to anyone! —Preceding unsigned comment added by Zumabtrancas (talk • contribs) 16:58, 19 January 2010 (UTC)

Dear Zumabtrancas: You're discussing various legal concepts of immunity. The article is about sovereign immunity, not judicial immunity or congressional immunity. Also, the statement that we (the people) "gave no branch of govt the authority to create or grant immunity to anyone" is simply incorrect. Under American law, there are all kinds of categories of immunity.

Again, the article deals only with the legal doctrine of sovereign immunity, not with the other kinds of immunity you mentioned. Also, the statement that "the people are the sovereign authority", while correct in some sense, does not negate the legal concept of sovereign immunity as that term is used in American law. Apples and oranges, essentially. Yours, Famspear (talk) 03:47, 20 January 2010 (UTC)

Material under "Critique"

Dear fellow editors: The following verbiage was inserted by an anonymous user on 20 October 2006:

Supreme Court cases involving soverign [sic; sovereign] immunity have often been among the most devisive [sic; divisive], in many instances decided by a 5-4 vote. Ironically, it is the conservative wing of the court that has fought to maintain and even strengthen a state's immunity from suit in federal court or pursuant to federal law. Given that the Eleventh Amendment on its face does not prohibit these suits against a state by one of its own citizens, it is strange that the very justices who espouse the "original intent" of the Framers would read such a broad meaning into the Eleventh Amendment.

The phrase "among the most devisive" is non-neutral point of view and possibly unverifiable for purposes of Wikipedia. The phrase "in many instances decided by a 5-4 vote" may well be correct, but we would need some examples (actual citations). A sentence beginning with the word "Ironically" is probably, for purposes of Wikipedia, non-neutral point of view. Same for the clause beginning with "it is strange that". Anyone have any additional ideas on this passage? I didn't want to just delete it without saying why. Yours, Famspear 21:26, 20 October 2006 (UTC)

Immunity of foreign sovereign states.

Foreign sovereigns (=foreign states), under international law, and subject to some conditions, are immune from legal proceedings in another state. As far as I know, this stems from customary international law, I don't know if it is codified anywhere. The US, e.g., recognize this concept under the Foreign Sovereign Immunity Act. --JensMueller (talk) 15:01, 11 January 2009 (UTC)

Proposal to merge this article with State immunity

Much better than merger, I would say the following steps would be more advised:

1. Rename State immunity as [Sovereign Immunity (International Law)].

2. Rename Sovereign Immunity as [Sovereign Immunity (Municipal Law)].

3. Disambiguate "Sovereign Immunity" between the two above.

4. Redirect State immunity to the new Disambiguation page per 3.

The reason/s:

The genesis of the doctrines is common; but the principles, development and application are distinct; and in International Law its application is more universal - as a reading together of both articles as standing at present will also show.

The more commonly used term in case of both branches of the doctrine is "Sovereign" and the term "State" is used, if at all, in respect to the doctrine as applicable to a State within itself.

Thus, a State may be immune from process within its own (municipal/territorial) limits by reason of the doctrine if (and as) applicable according to its own (municipal/domestic) law; but a Sovereign State is immune from process in any other "Sovereign State" pursuant to international law, as limited by any relevant law of that other Sovereign.

VivekM (talk) 03:57, 3 August 2011 (UTC)

You're not really proposing a merger then, just renaming the two articles. A quick search in Google reveals that a search for "state immunity" is likely to produce results relating to international law, whilst "sovereign immunity" is likely to produce results relating to municipal law. On that basis I'd oppose renaming the articles and suggest using hatnotes on each article as appropriate. — Blue-Haired Lawyer ^t 13:52, 3 August 2011 (UTC)

Yes, Thanks. That does the job nicely. And then perhaps the WikiProjects:International Relations box should move to the State Immunity article. Meanwhile, I'm removing the merger proposal box from both articles. VivekM (talk) 10:58, 4 August 2011 (UTC)