Peeling Back Immunity in Alabama
A few months ago I discussed Arkansas’s constitutional provision forbidding lawsuits against the state in Arkansas’s courts. Alabama has similar language in its constitution, in Article I, Section 14: “That the State of Alabama shall never be made a defendant in any court of law or equity.”
Last week the state’s Supreme Court issued an extremely interesting and well written set of opinions, Ex parte Pinkard,including a number of concurrences, on the scope of that clause. The majority overturned past cases that had expanded state officers’ immunity from suit and explained the scope of the state’s sovereign immunity for the future. Anyone interested in these issues, such as the work of IJ’s Project on Immunity and Accountability, should give it a read. Here I merely offer a short summary. Alabama’s immunity laws still are pretty terrible, but this case is nevertheless a hopeful sign.
“I didn’t start the fire”
The case concerned a homeowner, Taylor and a state fire marshal, Pinkard. Taylor’s home had burned down and Pinkard was assigned to investigate the fire. After Pinkard interviewed Taylor, Pinkard suspected he had deliberately set the fire to cash-in on insurance money. Taylor was prosecuted, based in part on a confession that Pinkard claimed Taylor had made to him. But Taylor’s attorney deposed Pinkard before trial, where he admitted that Taylor actually had not admitted to guilt.
Well then. After that bombshell the prosecutors dropped their criminal case altogether. And following from that, Taylor sued Pinkard for malicious prosecution. But instead of doing so in federal court in a Section 1983 action he sued in state court, raising a state malicious prosecution claim.
In his defense in the malicious prosecution case, Pinkard argued that as a state employee who was acting in his official capacity he was immune from suit under Article I, Section 14. The trial court denied his motion but the issue then went up to the state supreme court on a writ of mandamus.
Official vs. Personal
The court ruled against Pinkard. It explained that Section 14 bars two kinds of lawsuits. One is a suit literally against the state, where it is named as a defendant. The other is where the suit is against a state official or employee that is “equivalent to a suit against the office itself.” This would include a suit for money damages where the money actually “would come from the State treasury rather than the agent’s personal assets.”
These immunities are bad enough, as we’ve argued in many ways over the years. Indeed, we gave Alabama an “F” for its immunity and accountability practices in our report earlier this year, 50 Shades of Government Immunity. This was partly because of strong sovereign immunity but also for a host of other factors, such as that there is no state civil rights statute and no way to sue for damages for violations of the state constitution.
Now, sovereign immunity nevertheless usually leaves open suits against government actors when they are sued in their personal capacity for illegal actions—like an official trying to frame someone “for a crime they didn’t commit.” In those cases the plaintiff is asking for the official to be held personally responsible for paying any damages, not the state. However, in recent years the Alabama Supreme Court has indicated that the state’s sovereign immunity extends even to these situations. In a 2018 case, Barnhart v. Ingalls, the court ruled that when a lawsuit is brough against a state officer in their personal capacity for breach of “duties . . . that . . . existed solely because of their official positions” that is a suit “in effect” against the state, and thus barred by Section 14.
That’s a pretty sweeping proposition, as it would prevent any lawsuit against a public official or employee who was performing something job-related (like filling out a fire report) however egregious and illegal their behavior.
Credit where it’s due
And much to its credit the court recognized the error of its ways. It also noted that it had allowed personal capacity lawsuits until the 2018 case, although a couple of the concurrences pointed out that the error went back a bit longer too. To clear up this mistake it explicitly overruled Barnhart, holding that a suit against a state official or employee is not a matter of sovereign immunity (it could, of course, fail on the merits, but that’s not an immunity question). The court even went further and ruled that in this case the fire marshal did not enjoy “state-agent immunity,” which is a bit like Alabama’s equivalent to qualified immunity. Thus, the fire marshal must face trial.
The various concurrences are the most interesting part of the ruling, and I especially recommend Justice Mitchell’s (who also wrote the majority opinion). Here he gives a brief history of sovereign immunity in the United States and discusses how it actually was much more limited until after the Civil War, when states tried to find new ways to protect them from war debts. This is when provisions forbidding suit like Alabama’s and Arkansas’ came from. Even then though, Justice Mitchell argued, the scope of officials’ immunity was not as broad as it is sometimes understood today, and it was only over the course of the twentieth century that it erroneously expanded.
This ruling does not change that much when it comes to government immunity in Alabama. You still can’t sue for damages for violations of the state constitution, for example. And Article I, Section 14 still forbids many lawsuits when the state harms its citizens even when the legislature wants to allow them. But this case is nevertheless a good step in the right direction and shows its judges maybe can tell that the judiciary’s love affair with immunities is due for some substantial and critical judicial engagement.
Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.