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 intended 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.
Sorry, comments are closed for this post.