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The Shrinking Realm of Sovereign Immunity in Kentucky by Douglas Hallock in Kentucky, Sovereign Immunity Originates in Section 231 Douglas J

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The Shrinking Realm of Sovereign Immunity in Kentucky by Douglas Hallock in Kentucky, Sovereign Immunity Originates in Section 231 Douglas J Local Government Law News Salmon P. Chase College of Law Kentucky Department for Local Government Northern Kentucky University Volume 1, Issue 3 November 1998 The Shrinking Realm of Sovereign Immunity in Kentucky by Douglas Hallock In Kentucky, sovereign immunity originates in Section 231 Douglas J. Hallock, Associate of the Kentucky Constitution, which provides that the Gen- Frost & Jacobs eral Assembly may “direct in what manner and in what courts 1100 Vine Center Tower suit may be brought against the Commonwealth.” Unfortu- Lexington, Kentucky 40507 nately, sovereign immunity protection in Kentucky is nei- ther automatic nor absolute. The framers of our State Con- Mr. Hallock is a litigation attorney with a practice focused in stitution specifically reserved to the General Assembly the general civil, commercial and insurance litigation, including authority to alter or reduce this protection. Additionally, professional negligence defense, school board defense, personal through the appropriate role of constitutional interpreta- injury and wrongful death defense, workers’ compensation, tion and construction, the judiciary has imposed certain re- lender liability and insurance coverage disputes. He also has strictions on both the applicability and the scope of sover- prior experience in family law, criminal law, probate law and eign immunity. Accordingly, any attempt to assess the viabil- corporate formation matters. He received his B.A. in English/ ity of a sovereign immunity defense in civil litigation neces- Professional Writing, with distinction, from the University of sarily requires a two part analysis: Kentucky in 1991, and graduated from the University of Ken- 1. Is the entity or agent within the class of governmen- tucky College of Law in 1994. Mr. Hallock is admitted to prac- tal agencies generally entitled to sovereign immu- tice in State and Federal Courts in Kentucky as well as the nity protection? United States Court of Appeals, 6th Circuit. He is a member of 2. If so, has the General Assembly or the judiciary acted the Fayette County, Louisville and Kentucky Bar Associations. to limit or reduce the protection under the given facts or circumstances? Who is entitled to sovereign immunity protection? The doctrine of sovereign immunity has taken many twists Not every quasi-governmental agency is entitled to the and turns through the Kentucky courts and legislature over protection of sovereign immunity. To the contrary, the terms the years. Most recently, the Kentucky Supreme Court held that the University of Kentucky did not waive sovereign im- munity by the purchase of liability insurance. Will that deci- continued on page 3 sion apply to public elementary and secondary schools and counties? What if the entity has purchased commercial in- surance rather than using a self-insured fund? These and a r t i c l e s i n t h i s i s s u e other issues, as well as a brief explanation and history of the sovereign immunity doctrine are outlined herein. Recent Developments ............................. page 2 The doctrine of sovereign immunity generally protects and exempts state and local government, agencies, and oc- Recent Kentucky Supreme Court Decision casionally their agents, from liability in civil litigation alleg- Simplifies Standard for Punitive ing tortious conduct or breach of contract. When immunity Damage Awards ...................................... page 7 protection is available, the governmental entity or agent is usually entitled to a complete dismissal of the litigation. New Property Tax Penalties and Fees ..... page 7 Historically, this protection was premised upon the monar- Cities Task Force Discusses Louisville-Jefferson chial proclamation that “the King can do no wrong.” In more Compact ................................................. page 8 recent times, however, sovereign immunity continues to ex- ist, but is now intended to prevent undue distraction in the OAG Opinions ........................................ page 8 performance of public service and to otherwise limit the extent of claims which can be asserted against public funds, Cumulative Newsletter Index ................ page 11 public property and other public resources.1 Recent Developments Chase Local Government Law county judges/executive, magistrates, com- Chase SBA Earns Top Honors Center missioners and county attorneys. For the first time this year, the Department is hold- Chase received a very significant honor The Chase Local Government Law Cen- ing its training sessions in conjunction with recently at the American Bar Association ter has several projects in progress this se- the County Attorney’s Association. The Law Student Division annual conference mester. First, the Law Center is working training session will be held at the Holiday in Toronto, Canada. Chase won the SBA with the Kentucky General Assembly’s Task Inn Fern Valley Road, Louisville, Kentucky. (Student Bar Association) of the Year Force on Local Government Organization. Some of the sessions currently scheduled Award for the Mid-west Region for the This task force plans to study the organi- include: 1) Requirements for newly elected 1997-98 academic year. Accepting the zation and efficiency of local government officials; 2) Personnel Administration; 3) award on behalf of Chase were William in Kentucky. The next meeting is sched- Debt Management; 4) Budgeting and Pur- Roberts, incoming SBA President, and uled for October 27 in Frankfort. chasing; 5) County attorney’s responsibili- Blaine Hamilton, Chase’s ABA/Law Stu- Second, the Law Center’s clinical pro- ties to the fiscal court; 6) Disaster and dent Division Representative. According gram is in full swing. Approximately twelve Emergency Services; 7) Property Taxation; to Mr. Roberts, special recognition goes Chase College of Law students are intern- 8) County Administrative Code, and 8) to Elizabeth Combs Risner, a 1998 Chase ing with local government attorneys across Grants available to Local Governments. graduate, who served as SBA President for Kentucky. Guest lecturers for the program Modified one day training sessions for the 1997-98 school year, for her substan- include Rep. Jim Callahan, David Jones, newly elected county judges/executive, tial contributions toward earning this Executive Director, Kentucky Medical magistrates, commissioners and county at- award. Examiner’s Office, Tamra Gormley, Direc- torneys are planned for: The Mid-west region includes all law tor, Victims’ Advocacy Division, Office of January 14, 1999 at Kentucky Dam Village; schools in the following states: Kentucky, the Attorney General, and Susan Blake, January 15, 1999 at University Plaza Hotel Ohio, Michigan, Illinois, Wisconsin, Indi- Special Assistant Attorney General. in Bowling Green; ana, Minnesota, South Dakota, North Da- Also, the Law Center is currently com- January 19, 1999 at Sheraton Suites, Rich- kota, Nebraska, Missouri and Iowa. piling data for the Statute Reviser, Legis- mond Road in Lexington; and Some of the criteria used in determin- lative Research Commission. The Law January 20, 1999 at Jenny Wiley State Park. ing the recipient of this award were: the Center is determining which local govern- Special training sessions for newly SBA’s budget, the relationship established ments have adopted the Uniform Residen- elected county clerks and county sheriffs between the ABA Law Student Division tial Landlord-Tenant Act. This informa- on: and the SBA at the school, and public in- tion will assist communities that are con- December 14, 1998 at Kentucky Dam Vil- terest work performed by the SBA. sidering adopting a landlord-tenant ordi- lage; The Chase SBA made a genuine com- nance. December 15, 1998 at the University Plaza mitment to public service during the 1997- Finally, the Law Center has completed Hotel in Bowling Green; 98 year. In the fall of 1997, the SBA orga- its Model County Administrative Code. December 16, 1998 at the Bluegrass Area nized students and faculty to work with Anyone interested in receiving a copy, Development District; and ReSTOC, and organization that assists low please contact our office. December 18, 1998 at Jenny Wiley State income families. Our students and faculty Kathleen Gormley Hughes Park worked in the Over-the Rhine area along- Interim Director TRAINING FOR NEWLY ELECTED CITY side families who are now living in the OFFICIALS buildings. Mealtimes were spent serving Additional Attorney Hired at In addition to the training already set food in a soup kitchen. The SBA spon- the Department for Local up for newly elected county officials the sored a canned food drive in November, Government DLG will be working the Kentucky League and a holiday gift project in December. of Cities in preparation for training for Earlier in the school year, William Rob- The Department for Local Government newly elected city officials. Stay tuned for erts was named ABA/Law Student Divi- (DLG) would like to announce the addi- further information regarding city official sion Representative of the Year for the tion of a new attorney to the DLG legal training. 1997-98 year for the 6th Circuit, which staff. Mr. Richard Ornstein was hired by The DLG hopes you will attend some includes all law schools in Kentucky, Ohio the Department on June 16, 1998. You can of the many training opportunities avail- and Michigan. reach Tom Troth or Rich Ornstein by call- able to local officials in the coming “We are very proud of our student body ing (502) 573-2382. months. When you are in Frankfort, please and our student government’s commit- stop by and see us as 1024 Capital Center ment to service,” acknowledged Dean Training of Newly Elected Drive, or visit us at our web-site: http:// David C. Short. “The commitment of www.state.ky.us./agencies/local_gov./ Chase’s students to public service should County and City Officials Thank you for your continued coopera- be commended. From Paducah to COUNTY JUDGES/EXECUTIVE, MAGIS- tion as we work together to advance the Pikeville and Perry County, they continue TRATES, COMMISSIONERS AND interests of local governments throughout to set standards for excellence in public COUNTY ATTORNEYS the Commonwealth. service,” said Dean Short. On December 9-11, 1998, the DLG is Thomas M.
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