By Rachel Bussett
In addition to serving as a member of the media by writing this column each week, I occasionally end up the subject of the media due to high profile cases that I am involved with. Lawsuits can be newsworthy for a number of reasons but the reason that my cases have often end up in the news is because of the identity of the Defendant – the State of Oklahoma or some other governmental subdivisions (i.e. a county, city, or town). However, while filing suit against the government might be newsworthy its also quite difficult to move these cases toward a verdict or settlement resolution and there are many steps in the process.
An individual cannot simply file suit against the government in the same way they can against an individual or a business. The government is protected by “sovereign immunity” which is a judicial doctrine that prevents the government from being sued without its consent. American law is derived from the English common law system and sovereign immunity is a surviving common law theory based on the concept that the King aka the government can do no wrong.
Sovereign immunity is divided into 2 categories. The first is absolute immunity and the governmental actor cannot be sue at all no matter how maliciously or intentionally the governmental actor acted. The second is qualified immunity, which is a form of limited immunity that shields the actor only when specific conditions as set forth in the law are met. For example a state or federal Legislator acting in their official capacity as for core legislative acts has absolute immunity from suit.
For legal theory that was created out of judicial decisions rather that statutes and the constitution, the limitations imposed by sovereign immunity are far reaching and substantially impact the ability to file suit against the government. I don’t particularly like filing suit against the state or the various governmental subdivisions but my firm is one of the few willing to undertake the onerous administrative process associated with filing these suits.
In the past I have discussed the Oklahoma Governmental Tort Claims Act (OGTCA) and how the state of Oklahoma and its political subdivisions are protected from suit and damages are limited under that act. For example the amount recoverable from the government for property damage is limited to $25,000 regardless of whether the government causes your $1,000,000 house to burn down. Personal injury recovery is limited to $1,000,000 per occurrence and $175,000 per person regardless of how much damage or injury happened in situation. So if my million dollar house burned down due to the negligence of the government and it killed 20 family members inside the most I would recover from the government is $25,000 for my house and $1,000,000 for all my deceased family members even though 20 deceased family members is in theory worth $3,500,000 is we accept that each life is worth $175,000. The OGTCA limits and damage caps can be found at Section 151 of title 51 of the Oklahoma Statutes.
Before suit can ever be filed against the government for something like negligence, a tort claim must be filed with that entity. The Tort Claim must be filed within a year from the date of the incident. Then the government has 90 days to investigate the allegation and state whether it is accepting the claim, denying the claim or requesting additional information. If the government takes no action then the claim is deemed denied by operation of law in 90 days and then the individual has 180 days to file a lawsuit. States also have sovereign immunity by virtue of the 11th amendment. The text of the 11th amendment says “ 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.” The immunity granted to the government under this amendment is a difficult doctrine and not one that I could easily and quickly explain in one of these columns. The Courts have treated it differently based on the context in which the issue arises. It has been treated like subject matter jurisdiction meaning the court weighs whether it has the power to hear the subject of a suit(for example negligence of a state actor) due to the sovereign immunity doctrine. In other cases it is treated as a personal jurisdiction issue meaning the court must decide whether it has the power to hear a case involving that arm of the government ( for example whether a federal court can hear a case involving a city of the state of Oklahoma) regardless of the subject or topic of the suit. While in other cases sovereign immunity can be treated as an affirmative defense to liability for the wrong. For example self defense is an affirmative defense to an assault and battery charge – meaning that the defendant admits to hitting someone but the behavior is excused because the alleged victim was actually the provoker.
Anytime you are involved in a suit against a governmental actor, these issues of immunity must be analyzed and accounted for in determining the best way to proceed.
If you have be injured or damaged by the government in some way be sure when consulting with the attorney that you question them about their understanding of these immunity doctrines and how they might apply to the facts of your case.
