The first session of Congress proposed and sent the first 12 amendments (the Bill of Rights) to the Federal Constitution to the States.  Nine of the thirteen states ratified the 10 amendments on December 15, 1791.  These amendments were made to ensure that every person has certain rights and immunities.   

Sovereign immunity comes from the idea that a sovereign is superior to all others in authority and power.   It prevents, in advance, a suit against a sovereign (a monarch, ruler, or a government) without the sovereign's consent.  The problem is, why would a sovereign consent to liability?

The Eleventh Amendment to the U.S. Constitution prohibits federal courts from hearing cases against a state by any resident or nonresident citizen unless the state consents. This amendment is an expression of sovereign immunity.

Sovereign immunity does have its use. Sometime ago, the larva of the Mediterranean fruit fly destroyed fruit in parts of California. The State decided to break the fly's life cycle by introducing sterile flies. Unfortunately, the State released fertile flies and the problem escalated to a higher level of urgency. Government officials decided to spray the infested areas with an insecticide and in doing so, caused extensive property damage.

If it wasn't for sovereign immunity, California taxpayers would bear the cost of lengthy litigations. In a political decision, California set up a program to compensate people for the damages caused by its negligence. California and the Federal Government have created programs to compensate victims.

Another form of sovereign immunity is the right of a government entity to take private property for public use, without the owner's consent.  The law calls this the Right of Eminent Domain and requires that the government entity pay just compensation to the property owner.  What is just compensation? Some government agencies have abused the right of Eminent Domain by taking property from one person and reselling it to another at a profit. The innocent property owners lost their home, land, and the precious memories that went with it.

Judicial Immunity is another artifact from English Common Law. It is the absolute immunity of a judge from civil liability for any act performed in the judges official capacity. Apparently, no one can deprive a judge of this immunity for reckless error, malice, unlawful discrimination, or exceeding authority. However, when a victim seeks money damages, the 1964 Civil Rights Act provides some civil relief.

Prosecutorial Immunity is a hybrid of judicial immunity, for prosecutors act in executive and judicial roles. A large part of this arises from the long discredited notion of prosecutorial discretion. Moreover, the 'Separation of Powers' doctrine prohibits one branch of government, at any level, from infringing or exercising the powers belonging to another branch of government. Discretion does require each of us to find the truth without prejudice.

No one has the right to ignore, misrepresent, destroy, contaminate, or conceal the truth. These acts of perjury and dishonesty.

In Hoffman vs. Harris (511 U.S. 1060  (1994)) a father sued his former wife, two social workers, and Kentucky's Cabinet for Human Resources.  His former wife told the social workers that she suspected that her husband was sexually molesting his daughter. Though this is a common ploy in custody disputes, the social workers did not investigate the allegation and did obtain an ex-parte order that suspended the father's visitation rights.

The United States Court of Appeals for the Sixth Circuit held that social workers are absolutely immune from liability.  Its reasoning was that, due to their quasi prosecutorial function in the initiation of child abuse proceedings, social workers are absolutely immune from liability for filing juvenile abuse petitions. The father petitioned for appellate review by the Supreme Court that it subsequently denied.

In his Supreme Court dissent, Thomas objected to absolute immunity, as applied to social workers. Thomas doubted that any social worker enjoyed absolute immunity for their official duties in 1871. He doubted that social workers with official duties existed in 1871. The social workers did not convince Thomas, who are often involved in civil family welfare proceedings, can ever function as prosecutors. He said that we should address the important threshold question whether social workers are, under any circumstances, entitled to absolute immunity.  Justice Scalia provisionally joined in Thomas' dissent.

In Kalina vs. Fletcher (522 U.S. 118 (1997)) a prosecutor (Ms. Lynne Kalina) filed a complaint against a defendant in connection to a school burglary. Based on her certification, a trial court found probable cause leading to the arrest of the defendant. However, the prosecutor's certification contained two untruthful statements. The defendant sued the prosecutor for damages, claiming that the prosecutor had violated the defendant's constitutional right to be free from unreasonable seizures. A Federal District Court denied the prosecutor's claim to absolute prosecutorial immunity. Eventually, the case reached the Supreme Court.

Justice John Paul Stevens wrote the unanimous opinion of the Supreme Court. The Court ruled that Section 1983 creates a remedy against a prosecutor who makes false declarations in a written statement made under an oath. Doctrine of absolute prosecutorial immunity does not protect such conduct. Even if that person is an attorney, the only function the person performs is that of a witness.

Note:  I have condensed the Supreme Court Justices' opinions for the purpose of this essay.  I have included case identifiers so those who read this paper can locate the original case documents. 

 

Edward S. Nunes

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I am not an attorney. The information presented in this paper comes from my own experience.  My opinions expressed are my own though they may coincide with those expressed by others. To view similar topics at this web site, please click here.