Thursday, July 15, 1999
Court ruling protects state employees
BY SUSAN VELA
The Cincinnati Enquirer
A former Beechwood High School football player gets injured on the field, recovers to play again and, after graduation, sues his former school district, coach and others.
If it hadn't been for a 1998 state Supreme Court ruling involving the doctrine of “sovereign immunity” — originally based on the Anglo-Saxon premise that “the king can do no wrong,” then the school system and coach might remain under fire.
Instead, Kenton Circuit Judge Doug Stephens decided last spring that those parties could not be held liable under Josh Bishop's charges.
Under the doctrine of sovereign immunity in Kentucky, no one can sue the state or any of its agencies, even for the negligent actions of its employees. Yet the employees themselves could be sued — at least until the 1998 ruling.
The 1998 ruling “has had a big impact, without question,” the judge said. “Right or wrong, good or bad, that opinion had a big impact on the Bishop case.
“Sometimes (the issue of) sovereign immunity is so clear. It's when you get into the new gray areas, like those involving a football coach — this is where you create new controversies.”
Attorneys, judges and law professors say there's no doubt that the state court system will use the 1998 ruling in Franklin County vs. Malone as a precedent-setting case in civil lawsuits in which a citizen seeks damages from employees of the state, municipal government or their agencies.
“There's a huge desire by those hurt by government and their lawyers to eliminate sovereign immunity,” said Paul Salamanca, a professor at the University of Kentucky School of Law in Lexington.
“On the other hand, the government, which needs the money for other things, would prefer not to pay. And taxpayers (who generate money for government bodies) would prefer (to) ... not have to pay.
“The reason that (sovereign immunity) is a minefield of complexity largely is because of the strong motivations on either side. They are so contrary.”
In the case of Franklin County vs. Malone, the Ken tucky Supreme Court bestowed sovereign immunity upon a state trooper who searched an inmate but failed to find the knife that the inmate later used to commit suicide while in jail. The court ruled that the trooper was acting in the “traditional role of government,” and couldn't be sued.
Lawyers worry that the ruling affected these cases:
• Michael Carneal's 1997 rampage at Heath High School in West Paducah. The parents of the students killed cannot take any of the teachers or school administrators to court to try to show that they were negligent. A judge has dismissed 30 of the 45 defendants named in the suit.
• The family of a woman killed when her car skidded off an icy road and into a tree can't try to show that employees in the Martin County road department knew of the dangerous situation but did nothing.
“The government cannot be all things to all people all the time,” said Joe Meyer, counsel to the Frankfort-based Kentucky Association of Counties. “There are, in fact, limits that apply. Where those boundaries are change over time.”
Other attorneys representing counties and cities held similar opinions.
Covington attorney Joe Condit said that, if it weren't for sovereign immunity, some truly small cities — with populations of as little as 100 — could be dissolved if they lost a $10 million lawsuit.
“If there isn't some immunity, it frankly may be very difficult to find somebody to go into public office at the state, county or city level,” he said.
Kenton County Attorney Garry Edmondson said the 1998 ruling merely was a reaffirmation of sovereign immunity's role.
“I can't say whether (the 1998 ruling) was needed,” said Mr. Edmondson, who also is attorney for the Campbell County Schools Board of Education.
“(Sovereign immunity) has just always been the law. It's simply a reaffirmation of it. The only way we can change it is to change the constitution.”
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