SIOUX FALLS, S.D. (KELO) — In a recent development in a lawsuit by the company 605 Cannabis against the South Dakota Department of Health (DOH), DOH lawyers filed a motion to dismiss the suit, citing — among other things — sovereign immunity from suits on the part of the state.
No action has yet been taken on this motion at the time of this writing, but it raised an interesting question; what is sovereign immunity, and can I sue the government?
We reached out to Neil Fulton, 14th dean of the University of South Dakota Knudson School of Law, who helped explain the concept.
“Ideas of sovereign immunity are things that come up a lot,” said Fulton. “They are rooted in a traditional notion in English Common Law that the king as sovereign could do no wrong.”
While this is the root, Fulton says the version of sovereign immunity we have in the U.S. is one that is more evolved. “Most governments, as government entities, are immune from suit other than in limited circumstances,” he explained.
This immunity also extends to individual government actors, says Fulton, though the level of immunity varies depending on the individual and their actions.
Essentially, Fulton told us the state holds total immunity from lawsuits, at least those seeking monetary compensation, except in circumstances where it has waived that immunity.
“[The state] can say ‘you can sue us under certain conditions’,” Fulton said. “In South Dakota, that condition is that the state has waived its immunity and the immunity of its actors — only to the extent that there is coverage under the Peoples Fund or some other policy of insurance.”
This coverage — thought of as a sort of insurance policy the state can pay out from — is the Public Entity Pool for Liability (PEPL) fund. According to documentation from the S.D. Bureau of Admin, it was formed in 1986 in the form of a law allowing for the pooling of contributions from public entities in order to provide tort liability coverage.
This fund is accessed when the state makes the decision to waive its immunity, which it will only do in the event that there is funding from PEPL or some other policy to cover it.
“This coverage that is out there, whether it’s reached through the settlement of a lawsuit, a settlement prior to a lawsuit, or a judgement of a judge or jury at a trial,” said Fulton, “that degree of immunity has been waived, so the state has agreed to be sued up to that extent.”
There is an individual limit built into PEPL, limiting coverage to $1,000,000 per occurrence.
The concept of sovereign immunity may seem like a relic of the past, and in many ways it is.
“It’s a pre-existing to the constitution idea of the nature of sovereignty,” said Fulton. “There’s is just this fundamental nature that the courts are a creation of the sovereign and that the sovereign can’t be held accountable in its own courts without its permission.”
Whether you agree with this concept or not, one common area in which Fulton pointed out sovereign immunity being exercised is in what is known as discretionary action.
“If you have an instance in which a state official has multiple courses of action that they can pursue — it’s sort of a policy making decision; its a discretionary rather than an administerial action — sovereign immunity is retained for those with the idea that state officials have to make difficult policy judgements, and we’re not going to penalize you for just making the wrong judgement,” Fulton said.
Without this type of immunity, it is thought that public officials may be paralyzed from making decisions for fear of liability if something negative may occur in the future as a result.
When it comes to who decides the boundaries of sovereign immunity, the courts have the final say, but “there is a component to which the state itself decides whether it retains sovereign immunity by the decision to waive or not waive it,” Fulton said.
If there are opposing claims regarding the existence of sovereign immunity between the state a citizen, it will be up to a court to decide who is right.
Sound complicated? Well, it’s not just you.
“This is one of the most complicated areas of law out there,” said Fulton. “Lawyers who do not work in this area regularly often make really significant mistakes.”
One of the biggest mistakes Fulton sees is people not knowing that sovereign immunity exists, but that’s not the only way things can go awry.
“In South Dakota, you have to present a claim against the state or local governments within this 180-day window,” said Fulton. “People miss that 180-day window and if you fail to file that, your lawsuit may be barred.”