Recently, a Republican member of the Tennessee House has asserted
that SB1958/HB1971 is necessary to reverse an unintended consequence of
Tennessee Code Annotated § 1-3-121. That alleged unintended consequence -- the
waiver of sovereign immunity. However, that statute did not waive
sovereign immunity for at least two reasons. First, the doctrine of
sovereign immunity is inapplicable to civil actions seeking declaratory
or injunctive relief as to the constitutionality of government action.
Second, that statute cautiously made clear that a claim for money
damages would not arise under the equitable relief that the statute was
codifying.
In Tennessee, the common law doctrine of sovereign immunity does not
protect the state from citizens bringing declaratory or injunctive
relief civil actions challenging state statutes or other government
action (e.g., executive orders or administrative regulations) that
allegedly violate the state constitution’s grant of limited authority to
the legislative or administrative branches. Tennessee law provides at
least two distinct but somewhat related pathways for such constitutional
challenges.
First, Tennessee law has long recognized an ultra vires
exception to sovereign immunity. That exception was addressed and
reaffirmed in the Tennessee Supreme Court’s decision in Colonial Pipeline Co. v. Morgan,
263 S.W.3d 827 (2008), under which state officers acting pursuant to
unconstitutional statutes lose immunity protection because they act
beyond state authority as defined in the constitution.
Second, the
express statutory waiver under Tennessee Code Annotated § 1-3-121 is
limited to declaratory and injunctive relief – but it excludes damage
claims – thus merely codifying the pre-existing common law. Thus, both
the common law and the 2018 statute allow declaratory and injunctive
relief against unconstitutional government action, but neither permits
monetary damages against the state.
A closer examination of Colonial Pipeline underscores the fact that the claims of Legislators supporting SB1958/HB1971 is not about sovereign immunity.
In 2008, in Colonial Pipeline the Tennessee Supreme Court
addressed a longstanding and significant exception to sovereign immunity
for constitutional challenges to state action which exception was also
recognized in Stockton v. Morris & Pierce . The Supreme Court stated:
In Stockton v. Morris & Pierce, 172 Tenn. 197, 110
S.W.2d 480 (1937), however, we held that the doctrine of sovereign
immunity does not bar suits against state officers to prevent them from
enforcing an allegedly unconstitutional statute. Stockton
involved a suit in replevin instituted by tobacco dealers against the
State Department of Finance to recover tobacco products that were seized
pursuant to an unconstitutional statute. Id. at 481. The
defendants filed a motion to dismiss, alleging that the trial court
lacked jurisdiction in actions against the State. Id. In
rejecting this argument, we held that “ ‘[a] suit against state officers
attacking the constitutionality of a statute of the State is not a suit
against the State.’ ” Id. at 483 (quoting 43 A.L.R. 408). Our
reasoning paralleled that of the United States Supreme Court’s seminal
decision of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441,
52 L.Ed. 714 (1908).
Colonial Pipeline, 263 S.W.3d at 849–50.
Thus, the Court’s reasoning was expressly grounded in the ultra vires
doctrine and federal precedent from Ex parte Young.
Quoting Justice Peckham in Ex parte Young,
the court explained that “[t]he act to be enforced is alleged to be
unconstitutional; and if it be so, the use of the name of the State to
enforce an unconstitutional act to the injury of complainants is a
proceeding without the authority of, and one which does not affect, the
State in its sovereign or governmental capacity”
Colonial Pipeline
Co. v. Morgan, 263 S.W.3d at 852. Essentially, an officer acting
pursuant to an unconstitutional statute loses the immunity protection
normally granted through official authority.
Importantly, the Colonial Pipeline court rejected the
State’s theory that the Declaratory Judgment Act contained an implicit
waiver of sovereign immunity. Rejecting that argument, the Court stated
that “sovereign immunity simply does not apply” to declaratory judgment
actions challenging the constitutionality of statutes against state
officers, making a waiver unnecessary. This exception is limited to
suits seeking declaratory and injunctive relief because such suits do
not seek “money damages to be awarded against state officers” in their
official capacities.
Under Tennessee law government action may be declared ultra vires when a government official or entity exceeds constitutional or statutory authority. Allmand v. Pavletic,
292 S.W.3d 618 (2009). When government officials or entities “fail to
act within [their] charter or under applicable statutory authority, the
action is ultra vires and void or voidable” Id. Colonial Pipeline demonstrates that when state officers act pursuant to unconstitutional statutes, they are acting ultra vires.
Furthermore, the separation of powers doctrine provides additional
support for citizens’ ability to challenge government action that
exceeds constitutional authority. The Tennessee Constitution establishes
three separate branches of government and provides that “[n]o person or
persons belonging to one of these departments shall exercise any of the
powers properly belonging to either of the others” Tennessee
Constitution Art. 2, § 2.
Tennessee’s Supreme Court stated in Colonial Pipeline that
“the sovereign immunity doctrine embodied in the Tennessee Constitution
addresses separation of powers issues among the three branches of
government in Tennessee.” The separation of powers doctrine establishes
that courts have the constitutional authority to determine whether
government action exceeds constitutional limits. Again, in Colonial Pipeline,
the Court stated that administrative agencies do not have “authority to
determine the facial validity of a statute under the constitutional
requirement of separation of powers.”
More recent Tennessee Supreme Court decisions emphasize the constitutional boundaries between government branches. See, e.g., Willeford v. Klepper, 597 S.W.3d 454 (2020) and Case v. Wilmington Trust, N.A.,
703 S.W.3d 274 (2024) which discuss the constitutional limits on
governmental power, the judiciary’s role in enforcing those limits and
the Supreme Court’s commitment to protecting judicial authority to
review government action that allegedly exceeds constitutional limits.
This principle reinforces the availability of judicial review when
government entities allegedly exceed their constitutional authority.
These cases also make clear that under separation of powers principles
that any action by the Legislature to insulate its unconstitutional
actions from judicial review would itself be an ultra vires and unconstitutional act exceeding the Legislature’s authority.
Thus, claims by Legislators that SB1958/HB1971 are necessary to
restore or protect the state’s sovereign immunity are grossly misplaced.
Such claims evidence a fundamental misapprehension of the nature of
the constitutional republic represented by Tennessee’s constitution or
an unfounded denial of the applicability of the separation of powers
that is a cornerstone of the constitution’s structure as established by the citizens of Tennessee.
Obviously, since the citizens are the sole masters of the
constitution’s structure and its allocation of limited authority to the
three branches of government, any claim by any member of any branch that
the citizens lack the fundamental authority or right to challenge ultra vires
actions by one or more branches exposes the fact that such public
officials may lack the constitutional understanding required to be a
competent public steward.
What should you do?
First, be prepared to tell any legislator or other supporter of this legislation that sovereign immunity has nothing to do with declaratory judgment actions in which citizens seek to challenge the constitutionality of statute statutes (or executive orders, or regulations). The Supreme Court at the state and federal level has resolved that issue.
Second, tell them that the proposed law violates the constitution in numerous ways including, for example, the separation of powers doctrine.
Third, call and email your legislators and insist that they oppose this legislation. Ask them to affirm their opposition in writing to you.
