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Reform of Sovereign Immunity is Needed NOW for Virginia!

When I ran for delegate in 1989 (the story is here, here and here) I spoke to a reporter about sovereign immunity and said it ought to be reformed or maybe abolished.  I cited a recent murder of a shopkeeper’s wife and employee who was killed by an escaped convict who was placed on a work crew.  I said that the state could only be liable for at that time $75,000 under the Virginia Tort Claims Act.

The newspaper ran the story on the front page:

Brickley, Sanders spar over XXX case

Not the biggest article but on the front page!  I was horrified so I called my campaign treasurer (now a Board of Supervisors member in Spotsylvania – see everybody wins but me!) and he said – this is great – you got equal billing with the incumbent!

Well, we still need that plank from the 1989 platform – some sort of basic reform of the ancient doctrine of sovereign immunity.

In Pike v. Hagaman, the allegation was that a nurse was negligent in the performance of her duties (and in fairness to the defendant Hagaman, no jury or judge held she was in fact negligent but the case went to the state supreme court on the allegations pled in the complaint) and because that nurse was an employee of a state hospital (VCU Medical Center) she was held to be immune with the state’s sovereign immunity.

What is sovereign immunity?  to turn to a source I respect very much, Dean Erwin Chemerinsky who perhaps goes further than I would at this time wrote this:

The principle of sovereign immunity is derived from English law, which assumed that “the King can do no wrong.”  Since the time of Edward the First, the Crown of England has not been suable unless it has specifically consented to suit.

Now in a footnote that I omitted (and virtually every sentence in one of these articles – and I ought to know, I authored or co-authored ten of them! – has a footnote – I omitted TWO in this small passage) it says:  Maybe the meaning of the “King can do no wrong” might be – the Crown can never do wrong – not the the Crown is not accountable for its wrongs.  The King had a repository of power to do good but still could not be brought into his own courts.  But we have a system where the government are accountable to the public.

However, in Virginia today, we adhere to the ancient doctrine that the government, when it is conducting a governmental function, is immune to suits for ordinary negligence, subject to the Virginia Tort Claims Act which has a cap on damages of something like $100,000 or the coverage limit of the insurance policy in force.

Here is the latest troubling opinion – a veteran who was allegedly (again in fairness the allegations were not proven – because of sovereign immunity that aborted the suit before trial) deprived of a federal right to have his or her old job back (with circumstances and exceptions of course) upon return from deployment – the law is called the Uniform Services Employment and Reemployment Rights Act (USERRA) and it is derived from the Congressional power to levy war found in Article I of the US Constitution.  Here’s the unanimous opinion of our supreme court.  I would have dissented writing the war powers is plenary and overrides state law.

Here’s another court opinion that even Steve Emmert, a leading appellate attorney and case commentator was skeptical of – a case involving police chases.  Read this commentary (scroll down about halfway to the Torts subsection) and see this conclusion (I want to state clearly I am NOT implying or stating Emmert would agree with MY conclusions):

Folks, he’s right. The majority opinion permits police officers to craft their own immunity, merely by deciding – contrary to orders and without any offered justification – to drive faster, more recklessly, than departmental policy and the law allow. Remember, they were successfully prosecuted for their actions on this night. The majority holds that this irresponsible decision actually clothes the officers with immunity that would not exist otherwise.

I am no police critic; as noted above, I represented enough of them to drive home to me that their job requires them to put their lives on the line to protect my family and me. But when they disobey orders, as here, the law doesn’t shield them. At least, it shouldn’t; but as of today, it does in Virginia.

This has been a painful and difficult essay to craft; perhaps the toughest in the nearly ten years that I’ve published these analyses. I’m mindful that I’m coming down hard on law-enforcement officers, a group I esteem highly. I’m also being highly critical of the justices in the majority, each of whom I like as a person and respect as a jurist. But this message has to be delivered. This decision is worse than just mistaken; it actually makes the Commonwealth, as of today, a more dangerous place in which to live.

Let’s not blame the courts:  They are deferring to the legislature as a court should do.  But what we need at this point is a review and study of sovereign immunity and what to do.  I am reluctant to abolish it although some states have done it.  But reform is needed.  Going back to Pike, the nurse case, for a moment, the dissenters wrote:

Accordingly, the Commonwealth’s interest in the performance of one particular nurse in the treatment of one particular patient is the same regardless of the character of the facility where the treatment occurs. The only difference, under the majority opinion, is that a nurse at a private facility may be held liable for his or her professional negligence while a nurse at an identical facility owned and operated by the state cannot be. Whatever benefit this disparity may yield for the public treasury, and thus indirectly for the taxpayer, it promotes neither conscientious and competent performance by medical professionals employed at state medical facilities compared to their private sector counterparts, nor diligent and proactive supervision of such employees at state facilities that are immune from the consequences of their negligence. In short, the majority’s holding makes it less likely, rather than more likely, that the Commonwealth’s stated objective of providing high-quality patient care will be met.  (footnote omitted)

I would go one step further:  This creates a crazy quilt situation (The Commonwealth would seem to have these throughout the law – see the coverage of indigent defense offices in the Commonwealth) where a doctor (based on the prior case) in a state hospital is not exempt from accountability for negligence but the nurse is exempt – and both nurses and physicians in private hospitals are accountable for simple negligence.  We cannot have a two tiered health care system in our hospitals.

The General Assembly can correct both of these problems next session.  Introduce a bill that bars sovereign immunity in USERRA and related war powers cases and also in state hospitals.  The lobby will be strong against it.  It will take several years.

And also introduce a study bill to review the good and the bad of sovereign immunity and propose reforms.  It’s time for a serious look at sovereign immunity.

 

 

About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

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