Do we really want to live in a society where, legally, “the king can do no wrong”?

Rethinking “sovereign immunity” when government entities, such as SJRA, go into competition with private businesses

Conroe, September 5 – After witnessing the self-serving actions of the San Jacinto River Authority (SJRA) during the past year (and a lot longer), numerous readers of The Golden Hammer, Montgomery County’s leading daily newspaper, have asked the question: why can’t people sue the SJRA when it messes up and floods thousands of people’s homes? It’s an important question that citizens should consider carefully, especially as government moves more and more into direct competition with private businesses who still must bear the risk of money damage liability that the governments skirt.

What is sovereign immunity?

Sovereign immunity is the legal principle that “the king can do no wrong.” Putting it bluntly, you can’t sue the government, unless the government has expressly passed laws to allow you to sue it.

If SJRA acted with gross negligence in the manner in which it released water from the Lake Conroe Dam during Tropical Storm Harvey and thereby caused thousands of people to lose their homes, dozens of people to lose their lives, and billions of dollars of property damage, under the doctrine of sovereign immunity, SJRA is immune from a lawsuit. That means that a court actually does not even have jurisdiction to hear a lawsuit for money damages against SJRA.

That is the law in Texas, in the federal courts of the United States, and in essentially every other state in this Nation.

Why? There’s probably some myth mixed in with the history of the doctrine of sovereign immunity, but here’s a basic answer, which by 1765 became hard doctrine.

As the feudal system began to decline in Europe, particularly in Italy and England, serious efforts occurred to create modern unified states. In Italy, Nicolo Machiavelli wrote of the concept that the king should be immune from his mistakes as early as 1513. In England, the great political philosopher Thomas Hobbes wrote extensively on the concept in 1651.

There is no question, however, that the doctrine of sovereign immunity was widely accepted in England by the time that William Blackstone wrote his great Commentaries, which the Oxford University Press published in 1765. Here’s what Blackstone’s Commentaries explained about sovereign immunity:

“Besides the attribute of sovereignty, the law also ascribes to the king in his political capacity absolute perfection. The king can do no wrong…The king, moreover, is not only incapable of doing wrong, but even of thinking wrong. He can never mean to do an improper thing. In him is no folly or weakness.”

Blackstone’s Commentaries are extraordinarily important to American law, because the legal principles within Blackstone’s writing became American common law, which American courts borrowed from England soon after the American victory in the American Revolutionary War.

Texas recognized the doctrine of sovereign immunity, as Blackstone had described the concept, as early as 1847. Today, there remain only very narrow areas where the state has waived sovereign immunity and allowed itself to face money damages lawsuits. One of those areas where people can sue the state or its political subdivisions is where negligent operation of a motor vehicle by the state has caused property damage or bodily injury.

Why the doctrine of sovereign immunity doesn’t seem right anymore?

Marilyn Phelan, a former law professor at Texas Tech University, wrote:

“…this venerable doctrine runs counter to a current need for moral responsibility on the part of government and its officials as well as a need to compensate victims for harmful government acts.”

Phelan makes the obvious moral argument, which fits SJRA’s wrongdoing on so many fronts quite nicely.

For the more philosophical and history-minded readers, it’s also very important to note that government was quite different when Blackstone published his Commentaries in 1765. Despite the oppression which American colonists felt from British taxation and regulation, government today is far more onerous with taxes, far more burdensome with regulation, and far more intrusive into the lives of ordinary citizens and businesses than it was in 1765.

Remember that it was in 1766 that English philosopher Adam Smith published his treatise Wealth of Nations where he argued to overwhelming popular response throughout British society that government should never interfere in business and that government’s sole moral roles were to defend the nation from invasion, enforce the laws to protect individuals from injustice, and provide for public works that private individuals would not find profitable.

When Blackstone wrote his commentaries, government stayed out of the business and affairs of its citizens other than to protect them and provide public works for the good of all.

That’s why in 2017 sovereign immunity doesn’t fit the real world in which we live. Today, government engages in all sorts of activities where it directly competes with private enterprise for profits and revenues. Here are some real world examples:

  • San Jacinto River Authority competes directly with private businesses to sell water in Montgomery County. SJRA enjoys an enormous advantage over the competition because it has the power of regulation, the ability to create a monopoly for itself by imposing restrictions on groundwater development through its seat on the Lone Star Groundwater Conservation District, and because its broad power gives it enormous advantages in dealing with the County, school districts, and municipalities.
  • Montgomery County Hospital District competes directly with private ambulance companies. MCHD enjoys an enormous advantage over the competition, because through the imposition of taxes, MCHD has developed a large 911-communication system which it controls, its governmental power gives it advantages in dealing with local hospitals, and it also has stronger intergovernmental relationships that private companies simply could not garner.
  • The Montgomery County Commissioners Court intends to spend $73 million to build a 3.6 mile tollway at the far southwest edge of Montgomery County in order to provide a direct economic benefit to certain real estate developers, engineering firms, and contractors who want to enjoy public funds. As Precinct 1 County Commissioner Mike Meador has made clear, the County “looks forward to the profits from the toll road for decades.”
  • Competing with private airports, such as Hooks Memorial Airport in Tomball, the Montgomery County Airport, which consistently loses money, has had terrible management for three decades, and still survives through mandated taxpayer support.
  • Many private non-profit entities and for-profit entities successfully operate, finance, and manage entities such as animal shelters, dispute resolution services, engineering services, law libraries, legal services, parks, vehicle maintenance and repair establishments, and insurance. Nevertheless, the County government, many school districts, many public universities, municipalities, and other governmental entities (such as municipal utility districts) compete directly to provide those services.

In the past 20 years, average government salaries have begun to exceed those in similar positions in private industry. Within the out-of-control Montgomery County government, paychecks greatly exceed what people would earn in the private sector. (Could you imagine Charlie Riley or Mike Meador earning $162,000 per year, plus benefits in the range of $50,000 per year, plus lifetime health benefits, in any private business?!)

Summary and conclusion

That’s the reason that sovereign immunity just doesn’t fit the real world of 2017. Government now competes directly in countless fields against private businesses. It’s hard for the private businesses to survive.

If a private company had flooded thousands of homes downstream from its business operation because it was more focused on selling surface water throughout the County and groundwater under a lucrative contract with The Woodlands, the victims would rightfully would sue him out of business. But SJRA, Montgomery County, MCHD, and all government entities have a gigantic advantage over the private businesses with which they compete. They are the “king” and they “can do no wrong” in the eyes of the outdated law.

Publisher’s Note: Please don’t think that the Publisher seeks more ways to file suits against people. If you knew the Publisher’s views on tort reform, you’d never believe that, but this newspaper will address that subject more appropriately at another time.




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