The immunity ruse

May 27, 2002|By Mark Cloud

ATLANTA - Imagine that your employer keeps a file on you.

Imagine that he puts what you think is false and defamatory material concerning sexual harassment allegations into your file. Imagine that he disseminates the information to others. What would you do?

If you're like Paul Lapides, you'd sue your employer.

Mr. Lapides, a professor in the Georgia state university system, sued the Board of Regents of the University System of Georgia and university officials for such an alleged defamation. He brought his suit in a Georgia state court.

But before the Georgia court ever got to rule on the matter, the state exercised its power to have the case moved into a federal district court.

Why would the state do that?

Because of a thing called sovereign immunity, a legal doctrine that shields states from litigation. In Mr. Lapides' case, the state conceded that a Georgia statute had waived the state's sovereign immunity in state court. But in the federal district court, the state asserted that it still had immunity under the 11th Amendment to the Constitution.

Slick move by the benevolent sovereign, but the federal district court said no to the state's immunity claim.

The state wouldn't give up easily, though, and appealed to a federal circuit court. And wouldn't you know it, the appeals court reversed the district court, finding that the state is immune from Mr. Lapides' lawsuit under the 11th Amendment. Hooray for protecting the government from a claim from which no one else would be protected.

At that point, things weren't looking good for Mr. Lapides. It seemed like just another case of big government bulldozing the rights of the little guy. But then the U.S. Supreme Court decided to consider the case.

And now it's reversed the appeals court, holding that the state's act of moving the lawsuit from state court to federal court waives immunity under the 11th Amendment. Which only makes sense. As the unanimous court noted, it's inconsistent for the state to invoke federal jurisdiction and then deny that federal judicial power extends to the case. So hooray for protecting the little guy from anomalous governmental action.

Of course, sovereign immunity is still alive and well. So if you decide to get run into by a dump truck, you have a better chance of recovery if it's owned by a private company instead of the county. But, hey, if the county wants to move your dump truck action into a federal court, well then, you just might have a case.

Mark Cloud is an attorney who lives in Atlanta.

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