Wednesday, March 21, 2012

Sovereign Immunity

Yesterday's US Supreme Court ruling in Coleman v. Court of Appeals of Maryland gave me some serious non-employment discrimination-related food for thought. As such, the case is about whether Daniel Coleman can sue his former employer, the Court of Appeals of Maryland, for firing him while he because he was ill, which is ostensibly in violation of the Family and Medical Leave Act of 1993, specifically 29 USC 2612(a)(1)(D). The interesting thing is not the FMLA as such, but the reason why the Court held for the defendant:
A foundational premise of the federal system is that States, as sovereigns, are immune from suits for damages, save as they elect to waive that defense. See Kimel v. Florida Bd. of Regents, 528 U. S. 62, 72–73 (2000); Alden v. Maine, 527 U. S. 706 (1999).
From this premise, the result naturally follows, and I'm not sure why this was a 5-4. (Somehow it seems to involve a concise history of feminism. Don't ask.) The obvious exception to the rule is Congress' explicit power under section 5 of the 14th Amendment, but it is difficult to see how that helps sick people, as opposed to women, ethnic minorities, etc. Conclusion: this particular subsection of the FMLA is ultra vires to the extent that it applies to state government entities. Not very interesting.

Instead, the reason why this gave me food for thought is that it rests on a very peculiar approach to sovereign immunity. (The Wiki-page is not very good, but OK.) The state cannot be sued, unless it consents. Not even the Federal government can overcome this barrier, absent specific Constitutional provisions. (Justice Ginsburg, with only Justice Breyer concurring, brings up the case of Seminole Tribe of Florida v. Florida again, but not even Justices Kagan and Sotomayor are willing to follow her there. In that case they were in the minority too, and would have held that Congress can authorise suits against states under the Commerce Clause. The conservative majority, however, disagreed.)

This approach to sovereign immunity is peculiar because it is almost unique in the world. It has some roots in British common law, where the Crown was the fountain of all justice and the authority that created the courts, and could therefore not be sued, but even that was done away with by Act of Parliament in 1947. For that reason, sovereign immunity barely got a mention in the litigation over Frankovich and Factortame, where the European Court of Justice created a tort remedy for an infringement of EU law by a Member State.

In Frankovich, AG Mischo wrote:
[A] Member State cannot object to the bringing of an action for damages against the State in respect of the infringement of a right granted to individuals directly by Community law on the ground that its national legal system recognizes the principle of immunity of the public authorities, in particular the legislature; once the action for damages exists as a form of action, a Member State can no longer rely on the status of the person alleged to be liable in order to deprive individuals of the possibility of bringing such an action and thus impair the effectiveness of Community law with direct effect.

Indeed, the context we are dealing with here is completely different from that in which the theory of the immunity of the State in its capacity as a legislator was developed in certain Member States. The Commission correctly pointed out at the hearing that in national law there can hardly be a situation where not only is the legislature under the obligation to enact a law, not only is it possible to determine with a sufficient degree of precision what it must do, but in addition the legislature must act within a certain period. In my view it is not excessive to say that in relation to the transposition of directives the legislature is in a situation close to that of the administration responsible for the implementation of the law.
In the Waterkeyn judgment the Court was careful to state that pursuant to Article 171 of the Treaty,

"all the institutions of the Member States concerned must ... ensure within the fields covered by their respective powers that judgments of the Court are complied with" (paragraph 14).

That is merely the consequence of the fact that

"under Article 169 of the Treaty the Member States are liable no matter which organ of the State is responsible for the failure, and ... a Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with the obligations and time limits under Community directives" (18)

and under Community law in general. Furthermore, in Humblet the Court expressly stated that the obligation to rescind the national measure which is contrary to Community law and make reparation for the effects which it may have had results from the Treaty, which has the force of law in the Member States following its ratification and takes precedence over national law ([1960] ECR 569). A Member State cannot therefore take refuge behind the principle of the immunity of the legislature, even if that has the status of a constitutional rule, (19) in order to escape its obligation under the Treaty to take all necessary measures in order to ensure that Community law has full effect, where necessary by making good the wrongs suffered by individuals as a result of its infringement of its Community obligations. (20) On the contrary, as the Court has required in a different context, that of national budgetary rules,

"it falls to a Member State in accordance with the general obligations imposed on Member States by Article 5 of the Treaty, to recognize the consequences, in its internal order, of its adherence to the Community and, if necessary, to adapt its procedures for budgetary provision in such a way that they do not form an obstacle to the implementation ... of its obligations within the framework of the Treaty." (21)

I think that that is all the more necessary inasmuch as the implementation of directives is not always, or in all Member States, a matter for the legislature; to take refuge behind the principle of the immunity of the legislature would therefore give rise to disparities not only from one Member State to another, according to whether they recognize that principle or the implementation of directives as a matter for the legislature, but even within Member States where the legislature has the power to implement some directives but not all. I should add that in its order in Joined Cases 24 and 97/80-R ([1980] ECR 1319 at page 1333), paragraph 16, the Court had already firmly declared that

"by reason solely of the judgment declaring the Member State to be in default, the State concerned is required to take the necessary measures to remedy its default and may not create any impediment whatsoever".
In that case, the Court itself was silent on the matter. Likewise AG Tesauro in Factortame I, the ECJ in Factortame I, and the ECJ in Factortame III/Brasserie du PĂȘcheur. In that latter case, AG Tesauro writes:
36. Admittedly, in the past the idea that the State was not liable for acts or omissions of the legislature was a widespread one. Its rationale was that the sovereign could do no wrong or, according to a more modern, democratic version, parliamentary sovereignty. In other words, in so far as it was the highest expression of the sovereign power, the legislature fell in principle outside the general rules governing liability in view, inter alia , of its democratic legitimacy.That view, which took root above all in legal systems in which the law was not reviewed in the light of some higher parameter, should take on a different complexion where there is a higher norm which can be used to verify and, in an appropriate case, deny the legality of the legislature's activity. Yet, also in those legal systems in which there is not only a clear, formal hierarchy as between constitutional rules and legislative rules, but also a mechanism of ad hoc supervision as to constant compliance with that hierarchy (Austria, Italy, Germany and Spain, for example), the question as to whether compensation can be awarded for loss or damage ensuing from an unconstitutional law is far from having been incontestably resolved. (42) The fact remains, however, that in such a case it cannot be ruled out that the State will be called upon to answer for the loss or damage caused by laws declared unconstitutional.

Fn. 42: For instance, in Germany such a possibility is not ruled out per se , but only to the extent to which the official duty infringed is not referable to a particular third party, which, as I have already mentioned, is true in most cases involving an unlawful act or omission attributable to the legislature; for those very reasons, the possibility in question is unquestionably available in relation to individual-case laws ( Einzelfallgesetze ). However, the prevalent view among academic writers is that an individual should have the right to compensation at least in the event of breaches of fundamental rights (see, for instance, in this connection, Haverkate: Amtshaftung bei legislativem Unrecht und die Grundrechtsbildung des Gesetzgebers, in NJW, 1973, p. 441). In Italy, in which the question is still the subject of debate, such a possibility has been allowed, for example, in the specific case of presidential expropriating decrees issued pursuant to the agrarian reform which have been declared unconstitutional, where the agrarian reform agency was held liable in damages even though it was not guilty of any unlawful conduct; hence the conviction that in such case the compensation is more in the nature of restitution of undue payments, relating solely to the value of the asset lost (for some more general observations in this connection, see Zagrebelsky in Processo costituzionale in Enciclopedia del Diritto XXXVI, 1987, p. 639).
In other words, even analogising from European Federal states does not lead the AG to consider anything even remotely resembling the US approach. And on the whole, the ECJ simply dismissed the problem as one of effectiveness of EU law and one of its uniform applicability in all Member States, regardless of their internal rules with regard to sovereign liability. Which is all well and good, but does not address the threshold philosophical question of whether it should be possible to sue sovereigns without their consent in the first place. (We're going to ignore, for the moment, the ultimate cop-out that the Member States consented to be sued when they joined the European Union. That argument may be legally sound, but philosophically it is more than unsatisfying.)

Long story short: I don't know as much about the difference between Europe and the US in this regard as I would like, but I know enough to know that I would like to know more.

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