Worthington v. State

ROSE, Justice,

dissenting.

The majority opinion disclaims making any determination as to whether sovereign immunity is part of our statutory law by virtue of § 8-3-101, W.S.1977 [now § 8-1-101, W.S.1977, August 1978 Replacement]. 1 It relies entirely on principles of stare deci-sis and a view that Article 1, Section 8, Wyoming Constitution, requires a legisla-five consent to suit before the State can be sued for damages. Based on these observations, the opinion concludes that it is up to the legislature — not the court- — -to determine what areas and conditions are recognized for purposes of a consent to sue.

I cannot agree.

Had I been writing for a majority of the court, I would have returned to Hjorth Royalty Co. v. Trustees of University, 30 Wyo. 309 , 222 P. 9 (1924), where this court said Article 1, Section 8, is not self-executing and no suit is authorized until the legislature makes provision and consents to such a suit, and I would have corrected that erroneous holding. A proper construction would be that Article 1, Section 8, 2 merely authorizes the legislature to provide procedures for suit if it so desires. See Minge, Governmental Immunity—Part II, Vol. VII, No. 2, Land and Water Law Review, 617, at 658 (1972).

According to the plain language of Article 1, Section 8, this provision can be parsed as follows:

1. Suit may be brought against the state,

2. Provided the legislature may establish procedures and venue for such suits.

There is no room for construction of this provision — it simply says suits can be brought against the State and it plainly gives the legislature (and not some other branch of government) the power to establish procedures and venue. One must do a great deal of implying to conclude that this constitutional provision gives to the legislature the power to determine the kinds of *810 cases in which suit may be brought. Such an implication gives rise to the “consent-to-suit” philosophy. For me, such an implication is improper, and I am, therefore, able to distinguish the language found in Mayle v. Pennsylvania Department of Highways, 479 Pa. 384 , 388 A.2d 709 (1978), from Article 1, Section 8. Mayle holds that, since the Pennsylvania Constitution is neutral on both the establishment or prohibition of immunity from liability, it follows that the legislature may choose cases in which the state should be immune. In Mayle , the Pennsylvania Supreme Court was concerned with constitutional language which included the words “and in such cases,” thus justifying the conclusion reached by the court. 3 The Wyoming Constitution does not say “and in such cases.” How, then, can it be said that the legislature has power under Article 1, Section 8, “to determine what areas and under what conditions it would consent to suit,” as the majority opinion holds?

I would have held that Article 1, Section 8, does not establish immunity from liability, nor does it allow the legislature to establish such immunity indirectly by controlling the State’s consent to suit. Rather, the provision expressly provides for suits against the State — i. e., it makes such suits permissible —and grants the legislature narrow powers to establish procedures and venue. Any attempt to go beyond the establishment of procedures and venue is unauthorized and, indeed, violative of Article 1, Section 8.

I would have responded to the only argument that can be validly made in opposition to my position as expressed above as follows: First off, I am cognizant of the concept which says:

“. . . The principle is elementary that a State cannot be sued in its own courts without its consent. This is a privilege of sovereignty. . . . ” Railroad Company v. Tennessee, 101 U.S. 337, 339 , 25 L.Ed. 960 (1879).

See, also, State of Nevada v. Hall, 440 U.S. 410 , 99 S.Ct. 1182 , 59 L.Ed.2d 416 (1979). In State of Nevada v. Hall, the United States Supreme Court described the principle as rooted in the structure of the English feudal system and based on the fiction that the King could do no wrong. The fiction was rejected, but the structural basis for the principle was retained by explaining that sovereignty meant “the right to govern,” which necessarily encompassed the right to determine what cases may be brought in the sovereign’s own courts. The Court also repeated the words of Justice Holmes (set out in the majority opinion, footnote 3), that immunity from suit rests on the logical ground “that there can be no legal right as against the authority that makes the law on which the right depends.”

My response to this argument is that it is correct only if we deny the power of the court to abrogate the doctrine of immunity from liability and if we deny the reasonable construction of Article 1, Section 8, as constituting an affirmative grant to the people of the right to sue the state and a limitation on the legislature’s ability to modify such a right. To say that immunity from suit is an inherent part of a state’s sovereignty is not to say that the people, in formulating their state’s constitution, could not have modified that principle. The only question is whether they did so, or if there is presently a reasonable basis for holding that this is what they did.

We have no way of precisely ascertaining the framers’ actual intent — the debate of the constitutional convention being silent on the matter — but we can assume they were aware that the sovereign was immune at common law, absent consent to suit. In support of this assumption, it is said in 23 American and English Encyclopedia of Law 86 (Williams ed. 1893):

“A constitutional provision that suit may be brought against the state in such *811 manner as the legislature thereof may direct, does not compel that body to act; until a statute has been passed agreeably to such provision, the state retains its immunity from suit.”

The editor cites several state court decisions, pre-dating the adoption of the Wyoming Constitution, which are represented as supportive of this doctrine. See, Turner v. The State, 27 Ark. 337 (1871), The People v. Talmage, 6 Cal. 256 (1856); The State of Nebraska v. Stout, 7 Neb. 89 (1878), and The Chicago, Milwaukee & St. Paul Ry. Co. v. The State, 53 Wis. 509 , 10 N.W. 560 (1881). Each of these cases, however, involves the interpretation of a constitution providing for suits against the state in such manner and in such courts as the legislature shall direct by law. The Wyoming Constitution says, “as the legislature may by law direct.” The one case cited by the editor which is directly in point — in that the constitutional provision in question is identical to ours—is Williams v. The Register of West Tennessee, 3 Tenn. (Cooke) 161 (1812).

The Williams decision indicated the doctrine of separation of powers precluded the court from providing a remedy by way of mandamus for a legitimate claim when the legislature had prohibited the recognition of the claim in question and had not yet acted pursuant to the constitutional provision concerning suits against the state. This was true, according to the court, since

“. . . On general principles, the idea of an individual citizen, or subject, compelling the sovereign to do an act, is repugnant to every idea of sovereignty. .” 3 Tenn. (Cooke), at 164-165.

The court did indicate, however, that a person in the position of the claimant could obtain redress in a court of equity.

None of the pre-1890 decisions cited above provide a rationale — except the repugnance-to-sovereignty argument — for interpreting the constitutional provision in question as being without effect until the legislature acts. Stated differently, these early decisions determined that sovereign immunity, absent some legislative actions to the contrary, was the rule, but this rule was based on common-law notions of sovereignty and not on the directives of the constitution. Relying on the analysis tendered by Justice Roberts, in Mayle v. Pennsylvania Department of Highways, supra, 388 A.2d at 717—718, it can be said that there is no historical evidence that provisions like Article 1, Section 8, were added to make sovereign immunity the constitutional rule unless the legislature decides otherwise.

It is important to note that no reported Wyoming case attempts to discuss or ascertain the intentions of the framers of the Wyoming Constitution in enacting Article 1, Section 8. The decision in Hjorth Royalty Co. v. Trustees of University, supra, assumes the propriety of an interpretation of Article 1, Section 8, to the effect that the state is privileged simply because the legislature had not made provision for suits against the state. In doing so, the court relies on the general rule stated in 36 Cyclopedia of Law & Procedure 913 (1910). Research, previously cited, discloses that such general rules were based on cases which, in turn, were rooted in the common-law notions of sovereignty.

Since there is no evidence that the constitutional framers intended sovereign immunity, absent legislative consent, to be the rule, and realizing that decisions so holding were based not on the constitutional provision itself but on a reading by the courts of common-law notions into the constitutional provisions, there is, in my judgment, a firm basis for concluding that such former interpretations were erroneous. Additionally, since these erroneous interpretations were made by the court — and not by the people of the state — the courts have the power to correct the error.

I suggest correction of this historical mistake by pointing out that an interpretation which holds that Article 1, Section 8, grants the right of the people to sue the state, is more consistent with this nation’s hostility to the absolute power of the sovereign that existed at the Revolutionary War period. Having said that, we can then proceed to an interpretation of Article 1, Section 8.

*812 I have previously expressed the ultimate interpretation I would make of Article 1, Section 8, namely that it merely grants to the legislature the narrow authority to prescribe the procedures for and venue of suits against the state. I have reached this conclusion for these several reasons.

The plain language of Article 1, Section 8, does not expressly grant to the legislature the power to determine in what cases suit may be brought against the state (as is true in Pennsylvania and North Dakota). 4

The legislature of this state possesses all legislative authority except as restricted by the State or Federal Constitutions either expressly or by clear implication. State v. Snyder, 29 Wyo. 199, 222-223 , 212 P. 771, 779 (1923). This is true, according to Justice Potter, even though he recognized in Snyder that:

“ ‘A state government is an independent existence, representing the sovereignty of the people. The power of the Legislature is the power of that sovereignty, and, as a general proposition, is supreme in all respects and unlimited in all matters pertaining to legitimate legislation. . . . ’ ” State v. Snyder, 29 Wyo. 199, 230 , 212 P. 771, 782 , citing City of Richmond v. Pace, 127 Va. 274 , 103 S.E. 647 .

As I have noted in my dissent in Stephenson v. Mitchell, Wyo., 569 P.2d 95, at 108 (1977), our state constitution is not a grant or delegation of power, but is a limitation or restriction of power. I would, therefore, hold that Article 1, Section 8, clearly implies a restriction on the legislature’s power to modify the State’s amenability to sue, and that any legislation which goes beyond procedures or venue is illegitimate legislation.

Summary:

The impact of the above discussion is far-reaching, but I submit it as a justifiable way to give its true meaning to Article 1, Section 8, and to the judiciary’s inherent power to abrogate sovereign immunity from liability through the correction of previous erroneous decisions. Provisions like Article 1, Section 8, are always thrown up as the last frantic justification for retention of the doctrine. By pointing up the erroneous nature of those decisions which are raised in the name of stare decisis, I would have, in this manner, overcome this barrier and abrogated the doctrine of State sovereign immunity in Wyoming.

. Section 8-3-101, W.S.1977 [now § 8-1-101, W.S.1977, August 1978 Replacement], provides:

“Adoption of common law.

“The common law of England as modified by judicial decisions, so far as the same is of a general nature and not inapplicable, and all declaratory or remedial acts or statutes made in aid of, or to supply the defects of the common law prior to the fourth year of James the First (excepting the second section of the sixth chapter of forty-third Elizabeth, the eighth chapter of thirteenth Elizabeth and ninth chapter of thirty-seventh Henry Eighth) and which are of a general nature and not local to England, are the rule of decision in this state when not inconsistent with the laws thereof, and are considered as of full force until repealed by legislative authority.”

. The pertinent part of Article 1, Section 8, of the Constitution of Wyoming, is:

“. . . Suits may be brought against the state in such manner and in such courts as the legislature may by law direct.”

. The pertinent part of article I, section 11, of the Constitution of Pennsylvania is:

“. . . Suits may be brought against the Commonwealth in such manner, in such

courts and in such cases as the Legislature may by law direct.” [Emphasis supplied]

. At least one student of the Wyoming Constitutional Convention has opined that Article 1, Section 8, was modeled after the North Dakota provision. Prien, Background of the Wyoming Constitution (1956, University of Wyoming Master’s thesis). If this is true, some significance should be given to the intentional deletion of the words “and in such cases.”