Suing the Sovereign

August 18, 2010

By: David Jaffe

When Can You Sue the Government?

Historically, it has been very difficult to sue the government in the United States due to the age old tradition of shielding "the King" from suit to more modern notions of protecting the taxpayers from collective liability except in the most egregious of circumstances.

The doctrine of sovereign immunity applies to state governments.

In Connecticut, a Claims Commissioner was established to determine when the state could be sued to recover monetary damages. Essentially, a recovery for less than $7,500 can be ordered upon permission of the state Claim's Commissioner if requested within one year of the act or omission complained of, without further action of any kind.

However, if more than $7,500 is involved, generally speaking, when the Claim's Commissioner deems it just and equitable, he or she may waive the state's sovereign immunity by authorizing a direct suit in Superior Court or he or she may recommend payment of the suit in a certain amount to the General Assembly, which may accept, alter or reject any such "recommendation".

However, there are statutes which specifically authorize a direct suit to the Superior Court and either expressly waive sovereign immunity or do so by "necessary implication", whereby an individual may bypass the filing of a notice of claim with the State Claims Commissioner and bring a suit directly in Superior Court.

Many commentators are of the opinion that the present method of suing the state is antiquated and needs to be reformed and streamlined to prevent duplicative actions and allow more clear access to the courts when an individual claims he was harmed by the action of the state.

Another method of suing the state, is by bringing a civil rights action either pursuant to the federal constitution pursuant to 42 USC §1983 or directly under the state constitution.

Such suits, as well, even though constitutionally based, if asserting claims against state employees acting in their official capacity may not be brought without the consent of the Claims Commissioner.

In regard to governmental immunity, which is the form of immunity accorded to municipalities through its agents acting in their official capacity in furtherance of governmental pursuits, an individual is limited by the common law to bringing a suit against the municipality only when it is engaged in a ministerial or non-discretionary act.

There are some exceptions to this rule, however, as follows:

First, if a statute authorizes suit against a municipality, then, of course, it may be brought by an individual.

Second, if an individual alleges the existence of a positive act creating a nuisance on the part of the municipality, which causes harm to the individual or their property, a suit is also authorized, under the common law.

Third, if the act or omission complained of on the part of the municipality foreseeably causes imminent harm to a specific person or a to a member of a class of identifiable victims, then an individual may bring a suit for harm caused to him or her by an agent of a municipality.

The bottom line is that bringing suits against state or municipal governments is fraught with obstacles and pitfalls and should only be done after much consideration and consultation with an attorney who specializes in the bringing of such suits.