State sovereign immunity defense may be voided if it conflicts with Federal Law.

State sovereign immunity defense may be voided if it conflicts with Federal Law.

The following cases suggest that if a claim is valid under Section 1983 of the Federal Civil Rights Act, that state law granting immunity to the official cannot override Federal law under the Supremacy Clause.

Jefferson County Fiscal Court v. Peerce, 132 S.W.3d 824 (Ky., 2004)

“ is clear that “`[c]onduct by persons acting under color of state law which is wrongful under 42 USC § 1983 … cannot be immunized by state law.’

Third Cause of Action

        In discharging the Plaintiff from his employment, the Defendants Jefferson County Corrections Department, Jefferson County Fiscal Court, and Jefferson County Judge-Executive David L. Armstrong, acting in his official capacity and individually, acted under color of state law and maliciously subjected the Plaintiff to the deprivation of his rights and privileges under the Constitution of the United States causing the Plaintiff to suffer damages in excess of the jurisdictional requisite of this Court.

the trial court properly granted summary judgment in Armstrong’s favor as to Appellee’s second cause of action.

        Yanero holds that an official sued in his or her individual capacity “enjoy[s] only qualified official immunity, which affords protection from damages liability for good faith judgment calls made in a legally uncertain environment.”15 Armstrong’s decision to terminate Appellee was clearly a discretionary act, “i.e., [one] involving the exercise of discretion and judgment, or personal deliberation, decision, and judgment[.]“16 And, although Appellee argues that Peerce I, which held that “Armstrong clearly overstepped his authority by unilaterally deciding not to follow the Board’s decision,” demonstrates that Armstrong acted in bad faith, we observed in Yanero that “in the context of qualified official immunity, `bad faith’ can be predicated on a violation of a constitutional, statutory, or

[132 S.W.3d 834]

other clearly established right which a person in the [officer's] position presumptively would have known was afforded to a person in the plaintiff’s position, i.e., objective unreasonableness[.]“17

The factual context of this case exemplifies the “legally uncertain environment” in which qualified official immunity is appropriate.


        Claim Three in Appellee’s Second Amended Petition and Claims Seven and Eight in Appellee’s Third Amended Petition each assert federal civil rights claims under 42 U.S.C. § 1983,18 which provides:

        Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ….19

        § 1983 claims may be brought in either federal or state court.20

        The trial court entered judgment in favor of claims Three, Seven, and Eight on the grounds that each of the defendants enjoyed either sovereign or qualified immunity. Appellants urge that this was an appropriate disposition of these claims. Accordingly, we shall address each immunity claim in turn.

[132 S.W.3d 835]


        Under § 1983, any “person” who violates the federally protected rights of another may be enjoined and/or held liable for damages.21 It is well-established, however, that § 1983 does not override the traditional sovereign immunity of a state and arms of the state as guaranteed by the Eleventh Amendment.22 Thus, a governmental entity that enjoys Eleventh Amendment immunity is not a “person” subject to suit under § 1983.23

        Appellants argue that the trial court correctly held that the Fiscal Court and JCCD were protected from Appellee’s § 1983 claims by their immunity under state law. In their view, Clevinger v. Board of Education of Pike County24 accurately states the law on this issue in Kentucky. In Clevinger, the Teamsters filed a class action against the Pike County Board of Education, claiming that the Board’s failure to make requested payroll deductions of union dues violated both state law and § 1983. The trial court dismissed the § 1983 claim. The Court of Appeals reversed. This Court granted discretionary review, reversed the Court of Appeals and reinstated the trial court’s ruling because we held the school board was a state agency shielded by state sovereign immunity and that the state sovereign immunity doctrine protected against § 1983 claims. In reaching that conclusion, we considered the status of county agencies under Kentucky law. “At least since 1941 this Court has recognized that a County Board of Education is an arm of state government, and as such enjoys state sovereign immunity against liability and tort.”25 We relied on Will v. Michigan Dept. of State Police26 and Board of Trustees v. Hayse27 as our basis for concluding that sovereign immunity immunized the board of education from suit under § 1983:

        Thus, because in this Commonwealth a School Board is protected by state sovereign immunity from a suit for money damages for an injury wrongfully inflicted, whether the cause of action is common law or statutory, and because the United States Supreme Court has decided that where such is the case the state sovereign immunity defense will prevail against a 42 USC § 1983 claim, we reverse the decision of the Court of Appeals and affirm the decision of the trial court dismissing the claim for money damages in this case.28

        In Howlett v. Rose,29 however, the United States Supreme Court held that state

[132 S.W.3d 836]

sovereign immunity did not bar a § 1983 claim against a county school board. Howlett was a former high school student whose car was searched while parked on campus and who was suspended from school for five days. He brought § 1983 claims against the county school board and some of its officials in which he alleged that the search and subsequent suspension were illegal and in violation of his Fourth and Fourteenth Amendment rights. The trial court dismissed the action, claiming that it was barred because Florida had not waived its sovereign immunity with regard to § 1983 claims. The Florida Court of Appeals affirmed the dismissal, and the Florida Supreme Court denied review. The United States Supreme Court granted certiorari and defined its task as deciding “whether a state-law defense of `sovereign immunity’ is available to a school board otherwise subject to suit in a Florida court even though such a defense would not be available if the action had been brought in a federal forum.”30 In completing this task, the Court recognized Will as establishing that “the State and arms of the State, which have traditionally enjoyed Eleventh Amendment immunity are not subject to suit under § 1983 in either federal court or state court.”31 The Court observed that, by granting immunity to the school board, the Florida courts had “extended absolute immunity from suit not only to the State and its arms but also to municipalities, counties, and school districts that might otherwise be subject to suit under § 1983 in federal court.”32 The Court held that this action violated the Supremacy Clause of the United States Constitution because “[t]he elements of, and the defenses to, a federal cause of action are defined by federal law.”33 Further, the Court noted that “[f]ederal law makes governmental defendants that are not arms of the State, such as municipalities, liable for their constitutional violations.”34 Finally, the Court held, “[t]o the extent that the Florida law of sovereign immunity reflects a substantive disagreement with the extent to which governmental entities should be held liable for their constitutional violations, that disagreement cannot override the dictates of federal law.”35

        Appellants urge us to conclude that Howlett is not applicable to this case because Howlett involved a Florida school board that was not protected by sovereign immunity under Florida law whereas Kentucky counties enjoy immunity under Kentucky law.36 We are not convinced by this argument. Howlett states clearly that state treatment of sovereign immunity is not relevant to a determination of whether a party is immune from § 1983 liability because only federal jurisprudence is controlling on this issue.

        Accordingly, it is clear that “`[c]onduct by persons acting under color of state law which is wrongful under 42 USC § 1983 … cannot be immunized by state law.’”37 And the relevant inquiry in this case, therefore is whether the Fiscal

[132 S.W.3d 837]

Court38 is an arm of the state, in which case it would be protected by Eleventh amendment immunity and would not constitute a “person” subject to suit under § 1983. The United States Supreme Court, “has consistently refused to construe the [Eleventh] Amendment to afford protection to political subdivisions such as counties and municipalities, even though such entities exercise a `slice of state power.’”39 Thus, under federal law, counties are not arms of the state. Accordingly, none of the Appellants are protected from liability under § 1983 by the Eleventh Amendment


        Although none of the Appellants could assert sovereign immunity as a bar to Appellee’s § 1983 claims, the Appellants sued in their individual capacities—Armstrong, Bishop, and Karsner—could (and did) assert the defense of qualified immunity. United States Supreme Court precedent in § 1983 cases provides a complete defense for a government official performing discretionary functions so long as his or her actions were reasonably consistent with the rights allegedly violated. Conversely, if the official’s actions violated a clearly established right or law, the immunity is lost and the official is liable for the violation. The test is one of “objective legal reasonableness”:

        The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, … but it is to say that in the light of pre-existing law the unlawfulness must be apparent.40

        When a claim of qualified immunity is asserted on the grounds that the alleged constitutional right violated was not firmly established, the applicability of the qualified defense is a question of law to be decided prior to discovery.41

        As the qualified immunity inquiry is essentially identical to the qualified official immunity inquiry under state law, and we held in Part III(C) that Armstrong’s actions took place in a legally uncertain environment, we hold that the trial court properly granted summary judgment as to Appellee’s third cause of action against Armstrong in his individual capacity. Appellants also argue that Armstrong, Bishop, and Karsner enjoy qualified immunity as to the claims made against them individually in Appellee’s Seventh and Eighth causes of action. However, we would characterize both parties’ arguments regarding qualified immunity as to claims Seven and Eight as convoluted, and it appears that much of the

[132 S.W.3d 838]

confusion results from the fact that claims Seven and Eight do not clearly identify how Appellants’ actions violated a specific right under the federal constitution. The United States Supreme Court has observed that, under such circumstances, “the court may insist that the plaintiff `put forward specific nonconclusory factual allegations’ … in order to survive a prediscovery motion for dismissal or summary judgment.”42 Because we find it impossible to determine from the pleadings whether Appellants Armstrong, Bishop, and Karsner are entitled to qualified immunity, we remand claims Seven and Eight for the trial court to make that determination after requiring Appellee to plead his constitutional claims with particularity.


        For the above reasons, we affirm the Court of Appeals’s holding as to the claims against the Fiscal Court in Appellee’s Third cause of action and against JCCD in Appellee’s Third, Seventh, and Eighth causes of action. We reverse the Court of Appeals’s holding, and reinstate the trial court’s summary judgment, as to the entirety of Appellee’s Second cause of action and as to the claim made against Armstrong in his individual capacity in Appellee’s Third cause of action. Finally, we remand claims Seven and Eight to the trial court for further proceedings consistent with this opinion in connection with Appellants Armstrong, Bishop, and Karsner’s assertions of qualified immunity.

        COOPER, GRAVES and STUMBO, JJ., concur.


Howlett Howlett v. Rose, 496 U.S. 356, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990)

“Conduct by persons acting under color of state law which is wrongful under § 1983 cannot be immunized by state law even though the federal cause of action is being asserted in state court.”

  State as well as federal courts have jurisdiction over suits brought pursuant to 42 U.S.C. § 1983, which creates a remedy for violations of federal rights committed by persons acting under color of state law. Petitioner, a former high school student, filed a § 1983 suit in a Florida Circuit Court seeking damages and injunctive relief against, inter alios, the local school board, alleging, among other things, that his federal constitutional rights were violated when his car was searched on school premises in violation of the Fourth and Fourteenth Amendments of the Federal Constitution and that he was suspended from classes without due process. The court held that it lacked jurisdiction over the board and dismissed the complaint against the board with prejudice, citing Hill v. Department of Corrections, 513 So.2d 129, in which the State Supreme Court ruled that Florida’s statutory waiver of sovereign immunity applied only to state-court tort actions and conferred a blanket immunity on state governmental entities from federal civil rights actions under § 1983 in state court. The District Court of Appeal affirmed the dismissal, holding that the availability of sovereign immunity in a § 1983 action brought in state court is a matter of state law, and that, under Hill, the statutory waiver of immunity did not apply.

          Held: A state-law “sovereign immunity” defense is not available to a school board in a § 1983 action brought in a state court that otherwise has jurisdiction when such defense would not be available if the action were brought in a federal forum. Pp. 361-383.

          (a) Since the defendant in Hill was a state agency protected from suit in federal court by the Eleventh Amendment, see Quern v. Jordan, 440 U.S. 332, 341, 99 S.Ct. 1139, 1145, 59 L.Ed.2d 358, and thus was not a “person” within the meaning of § 1983, see Will v. Michigan Dept. of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45, Hill § actual disposition, if not its language and reasoning, comports with Will, which established that the State and arms of the State, which have traditionally enjoyed Eleventh Amendment immunity, are not subject to suit under § 1983 in either federal or state court.

However, in construing Hill to extend absolute immunity not only to the State and its arms but also to

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municipalities, counties, and school districts which might otherwise be subject to suit under § 1983 in federal court, the District Court of Appeal’s decision raises the concern that that court may be evading federal law and discriminating against federal causes of action. The adequacy of the state-law ground to support a judgment precluding litigation of the federal claim is a federal question, which this Court reviews de novo. See, e.g., James v. Kentucky, 466 U.S. 341, 348-349, 104 S.Ct. 1830, 1835-1836, 80 L.Ed.2d 346. Pp. 361-366.

          (b) Under the Supremacy Clause, state courts have a concurrent duty to enforce federal law according to their regular modes of procedure. See, e.g., Claflin v. Houseman, 93 U.S. 130, 136-137, 23 L.Ed. 833. Such a court may not deny a federal right, when the parties and controversy are properly before it, in the absence of a “valid excuse.” Douglas v. New York, N.H. & H.R. Co., 279 U.S. 377, 387-389, 49 S.Ct. 355, 356-357, 73 L.Ed. 747. An excuse that is inconsistent with or violates federal law is not a valid excuse: The Supremacy Clause forbids state courts to dissociate themselves from federal law because of disagreement with its content or a refusal to recognize the superior authority of its source. See, e.g., Mondou v. New York, N.H. & H.R. Co., 223 U.S. 1, 57, 32 S.Ct. 169, 178, 56 L.Ed. 327. A valid excuse may exist when a state court refuses jurisdiction because of a neutral state rule of judicial administration, see, e.g., Douglas, supra, unless that rule is pre-empted by federal law, see Felder v. Casey, 487 U.S. 131, 108 S.Ct. 2302, 101 L.Ed.2d 123. Pp. 367-375.

          (c) The District Court of Appeal’s refusal to entertain § 1983 actions against state entities such as school boards violates the Supremacy Clause. If that refusal amounts to the adoption of a substantive rule of decision that state agencies are not subject to liability under § 1983, it directly violates federal law, which makes governmental defendants that are not arms of the State liable for their constitutional violations under § 1983. See, e.g., St. Louis v. Praprotnik, 485 U.S. 112, 121-122, 108 S.Ct. 915, 922-23, 99 L.Ed.2d 107. Conduct by persons acting under color of state law which is wrongful under § 1983 cannot be immunized by state law even though the federal cause of action is being asserted in state court. See, e.g., Martinez v. California, 444 U.S. 277, 284, and n. 8, 100 S.Ct. 553, 558, and n. 8, 62 L.Ed.2d 481. If, on the other hand, the District Court of Appeal’s decision meant that § 1983 claims are excluded from the category of tort claims that the Circuit Court could hear against a school board, it was no less violative of federal law. Cf. Atlantic Coast Line R. Co. v. Burnette, 239 U.S. 199, 201, 36 S.Ct. 75, 76, 60 L.Ed. 226. The State has constituted the Circuit Court as a court of general jurisdiction, and it entertains state common-law and statutory claims against state entities in a variety of their capacities, as well as § 1983 actions against individual state officials. A state policy that declines jurisdiction over one discrete category of § 1983 claims, yet permits similar state-law actions against state defendants, can be based only on the rationale that such defendants should not be held liable for § 1983 violations. Thus, there is no neutral or valid excuse for the refusal to hear suits like petitioner’s. Pp. 375-381.

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          (d) There is no merit to respondent’s argument that a federal court has no power to compel a state court to entertain a claim over which it lacks jurisdiction under state law. The fact that a rule is denominated jurisdictional does not provide a state court an excuse to avoid the obligation to enforce federal law if the rule does not reflect the concerns of power over the person and competence over the subject matter that jurisdictional rules are designed to protect. Also meritless is respondent’s contention that sovereign immunity is not a creature of state law, but of long-established legal principles that Congress did not intend to abrogate in enacting § 1983. Congress did take common-law principles into account in, e.g., excluding States and arms of the State from the definition of “person,” but individual States may not rely on their own common-law heritage to exempt from federal liability persons that Congress subjected to liability. Pp. 381-383.

          537 So.2d 706 (App.2d Dist.1989), reversed and remanded.

          STEVENS, J., delivered the opinion for a unanimous Court.


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