David Bloys - News for Public Officials

Last spring, the United States Supreme Court reached a decision that could have far reaching repercussions for county and city governments. The case addresses whether state counties have sovereign immunity from private lawsuits authorized by federal law. The Court ruled unanimously that Chatham County, Georgia had no basis for claiming immunity because they were not acting as an "arm of the state."

Sovereign immunity or crown immunity is a type of immunity that in common law jurisdictions traces its origins from early English law. Generally speaking, sovereign immunity is the doctrine that the government cannot commit a legal wrong and is immune from civil suit or criminal prosecution. County and city governments sometimes rely on sovereign immunity to limit or stop suits by citizens that feel negligent behavior on the part of local government has harmed them. 

In Northern Ins. Co. of N.Y. v. Chatham County, although the county conceded that Eleventh Amendment immunity did not extend to counties, it nonetheless contended that it was immune under "the universal rule of state immunity from suit without the state's consent." The United States District Court for the Southern District of Georgia agreed and concluded that sovereign immunity extends to counties and municipalities that, as here, "exercise power delegated from the State." The District Court granted the County's motion for summary judgment on the ground that the suit was barred by sovereign immunity.

On appeal, The Eleventh Circuit Court affirmed the lower courts ruling. The appeals court acknowledged that the county could not assert an Eleventh Amendment immunity defense because, under Circuit precedent, the county did not qualify as an arm of the state. However, the court nonetheless concluded that a "residual immunity" had been carved out by American common law that protected political subdivisions such as Chatham County. The case was appealed to the Supreme Court.

On April 25, 2006, Justice Clarence Thomas delivered the High Court's unanimous opinion, which reversed the decision of the Eleventh Circuit. The Court ruled that the county was not entitled to immunity, holding that a county that was not acting as an "arm of the state" did not have sovereign immunity from lawsuits authorized by federal law.

The decision may be particularly troubling to counties that are facing lawsuits  for federal privacy violations by county Websites. Most states do not require or prohibit county government from publishing citizen's records online. The decision is left to local officials.

According to the Court , "because the County may claim immunity neither based upon its identity as a county nor under an expansive arm-of-the-State test, the County is subject to suit unless it was acting as an arm of the State."

Now that the Supreme Court has determined that county government is not immune unless acting as an 'arm of the state', county officials and their vendor partners may want to rethink online policies that are outside the scope of the state's mandate and jurisdiction.

Dec-30-06

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