Saturday, January 24, 2004

Who says a county board is not sovereign?

In this article about a lawsuit against Chesterfield County, a U.Va. law professor is quoted as saying ""You can sue a board of supervisors. Sometimes, you can even succeed. . . . The point is, the board is not sovereign. The board is a subordinate unit of the government. The commonwealth is sovereign, not the board."

What's that guy talking about? In Virginia, counties as the bedrock political subdivisions of the Commonwealth share fully in the sovereign immunity of the Commonwealth, and unlike the Virginia Tort Claims Act, which allows some claims against the Commonwealth, there are no exceptions to that immunity for counties. The immunity of counties, unlike for cities and towns, is not limited to claims arising out of the governmental activities of the county. The county board in its official capacity is totally immune from state law tort claims. In federal court, counties don't share in the Commonwealth's Eleventh Amendment protection, but that is not exactly the same thing as sovereign immunity, and there are some statutes where Congress has expressly abrogated even the Eleventh Amendment protection of the states. County board members and employees are not necessarily immune as individuals, but neither are employees of the Commonwealth. County board members probably are immune when they act as legislators, including legislation about zoning, in the same way that individual state legislators are immune.

Besides, immunity is not an issue in a suit that is not for money damages, which I don't believe is part of the Chesterfield County suit, which is some kind of zoning matter. When I read something like this in the paper, I wonder what was really said between the reporter and the expert. (Also, I wonder how it is that I get all fired up about questions of sovereign immunity.)

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