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Sovereign Immunity — Punishing the Innocent Injured

02/7/2019
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Sovereign Immunity — the STATE against the Injured

Antiquated Law Should Disappear from the Books

“The King can do no wrong” or as stated in Latin, “rex non potest peccare”. The legal maxim is also called “Crown Immunity”. This is a concept going back beyond Roman times and regularly adopted by monarchies and governments down the ages.

You may not sue the King. Sovereign immunity developed in the early days of English law and stood for the idea that the king should, under no circumstances, be sued because his majesty could do no wrong. In modern times, the theory goes that the state should, under no circumstances, be sued because the government is acting in the best interests of its citizens. Further, were the state to lose and owe monetary damages, every dollar paid would be coming out of its citizens’ pockets.

“Sovereign immunity, or crown immunity, is a legal doctrine by which the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution…,”

In a country where no monarch has ruled in all of history and in these modern times, sovereign immunity has become a rule for another time; an antiquated legal concept whose time should have come and gone long ago. Today, the state (either federal or state) has insurance available to it for wrongs committed against individuals or entities. Should the government have to carry insurance? All its citizens must carry insurance for business to get done and to protect against our own negligence.

The two versions of sovereign immunity are immunity from lawsuit and immunity from enforcement. The former is defined as “neither the sovereign / head of state in person nor any in absentia or representative form of him (nor to a lesser extent the state) can be a defendant or subject of court proceedings.” The latter is defined as “even if a person succeeds in any way against their sovereign or state, they and the judgment may find itself without means of enforcement.”

The above evolved into permitting lawsuits against the sovereign / head of state but limiting damages and requiring a claims bill beyond such statutory caps. A claims bill is something like double jeopardy n criminal law. In double jeopardy, the state cannot try a defendant more than once for the same charges. With a claims bill, the state forces the plaintiff to proceed through essentially three trials (not including appeals).

How? Florida law builds in several obstacles to collecting against a state instrumentality for its negligence:

  • The plaintiff must file its lawsuit against the state instrumentality.
  • The case must proceed through trial and the plaintiff must obtain a verdict against the state instrumentality.
  • The state can appeal the verdict and compensation by the plaintiff cannot be sought until the entire appeals process is completed; sometimes requiring Supreme Court review.
  • Assuming the plaintiff keeps their verdict throughout the whole appellate process, he or she must then proceed to the Florida legislature to ask for passage of a claims bill.

The plaintiff must file a claims bill to collect damages that exceed the statutory caps that, in Florida, are set at $200,000 per person and $300,000 per incident. To file the claims bill, the injured person must obtain the support of State legislators – two of them – one in the Senate and one in the House of Representatives (the “sponsors”). Then, the bill must be drafted, just like any other law, and the sponsors must get it into the appropriate committee before it can go to a vote on the general floor. Each committee (in the Senate and House) typically appoint someone to evaluate the claims. The evaluation process often involves almost a mini-trial before the committee representatives. The bill is then argued in committee.

Assuming the vote goes well in the committees, the bill will make it to the full legislature for a vote. It can be voted up, down or blocked from a vote. If the legislature passes the bill,
goes to the governor for approval or veto. At any point, the bill may be passed for an amount less than the award given to the injured person by the jury. We have seen reductions as large as 90% in some cases.

All told, from date of injury to passage (or veto), injured people can wait sometimes as long as a decade or even longer before they know whether the state instrumentality will have to pay them and how much they will be paid.

“The Legislature should repeal sovereign immunity, a doctrine that’s as obsolete and unfair as the divine right of kings, where it originated,” states an editorial in the South Florida Sun Sentinel titled “When government owes you, lobbyists win, you wait.” “In its place, cities, counties, school and hospital boards and other governmental units should be required to insure – or self-insure, like the state government – to reasonably substantial amounts. Claims should be settled where possible. Jury awards should be paid promptly once an appeals court has approved or reduced them.”

“This issue is of keen importance in Broward County,” the editorial states. “Despite the massive toll from the Valentine’s Day massacre in Parkland – 14 students and three teachers dead, 17 students injured, and scores more suffering post-traumatic shock – the School Board has warned everyone that if it’s found liable, there’ll be only $300,000 for them to share.”

In another horrific murder, a Palm Beach County man shot four of his stepchildren, his wife and himself. The 2010 case finally is headed to the Florida Supreme Court to resolve a dispute about the state’s – specifically the Department of Children and Families’ – liability.

“The fathers of the children filed a lawsuit against the state, alleging negligence by the Department of Children and Families, which had investigated an incident in 2009 in which Patrick Dell was alleged to have threatened his wife with a knife and made threats to the entire family,” WLRN reports. “The Supreme Court, if it decides to take up the case, could resolve the department’s potential liability under the state’s sovereign-immunity law, which is designed to shield government agencies from large judgments.”

Another tragic example is Dontrell Stephens, an unarmed young man shot four times by a Palm Beach County Sheriff’s Office deputy. In 2016, a jury delivered an award which totals with interest $25,421,172.13. He received a check in 2018 for $200,000. Dontrell will never walk again. He suffers today, sometimes without a home or medical. Sadly, Dontrell may be forced to wait several more years before he will hear from this legislature.

Sovereign immunity has encouraged state instrumentalities to stop carrying insurance or to obtain insurance that only pays out if a claims bill is obtained. This prevents settlements of even the most obvious cases. We have handled many claims-bill cases, but very few law firms will invest decades of fight and often hundreds of thousands of dollars in something so uncertain.

This represents a true David vs Goliath struggle for injured people.

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