Volume 82 Issue 2 Dickinson Law Review - Volume 82, 1977-1978 1-1-1978 Lessons in Constitutional Interpretation: Sovereign Immunity in Pennsylvania Jerome S. Sloan Follow this and additional works at: https://ideas.dickinsonlaw.psu.edu/dlra Recommended Citation Jerome S. Sloan, Lessons in Constitutional Interpretation: Sovereign Immunity in Pennsylvania, 82 DICK. L. REV. 209 (1978). Available at: https://ideas.dickinsonlaw.psu.edu/dlra/vol82/iss2/1 This Article is brought to you for free and open access by the Law Reviews at Dickinson Law IDEAS. It has been accepted for inclusion in Dickinson Law Review by an authorized editor of Dickinson Law IDEAS. For more information, please contact [email protected]. Lessons in Constitutional Interpretation: Sovereign Immunity in Pennsylvania Jerome S. Sloan* Table of Contents I. Introduction .......................................................... 2 10 II. Good Cases Make Bad Law ....................................... 211 A. Absolute Immunity-High Officials and Their Agencies Always Win ....................................... 213 B. ConditionalImmunity-Low Officials and Their Agencies Always Win ........................................ 214 C. Employees of PoliticalSubdivisions ....................... 214 D . Jurisdiction.................................................... 215 E . Equity Suits .................................................... 216 III. The Rules of Constitutional Interpretation ....................... 218 IV . H istorical Truth ..................................................... 219 A. HistoricalPerspectives ...................................... 219 B. What the Constitutions in Fact Say ........................ 243 V. Nexus and Conclusions ............................................ 256 A. The Transitionfrom 1790 to 1969 ......................... 256 B. The Common Law Status of Legal and Equitable Immunities in Pennsylvania Today ............................ 259 C. The Flow of Conclusions .................................... 262 V I. Epilogue .............................................................. 267 A. General Conclusions......................................... 267 B . The Future .......................................... .......... 268 C. An Alternative Position on the Law of Sovereign Immunity-The New Cases in View of the Arguments Already Presented............................................ 268 [TIhe relevant demands of stare decisis do not preclude con- sidering, for the first time thoroughly and in the light of the best available evidence of [constitutional] purpose a [constitutional] interpretation which started as an unexamined assumption on the basis of inapplicable citations and has the claim of a dogma solely through reiteration.' * Professor of Law, Temple University School of Law; B.A.,J.D. University of Chicago; Univesite d'Aix, Marseille, Doctor en Droit; LL.M. Yale University. 1. Monroe v. Pape, 365 U.S. 167, 220-21 (1961) (Frankfurter, J. dissenting). Article I, section 11 of the Pennsylvania Constitution of 1969 has survived in substantially the form in which it was originally adopted as article IX, section 11 of the Constitution of 1790. The present section reads as follows: All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay. Suits may be brought against the Com- monwealth in such manner, in such courts and in such cases as the Legislature may by law direct. I. Introduction Why has the Supreme Court of Pennsylvania failed to perceive the simple proposition that under the Pennsylvania constitutions, Pennsylva- nia is not an immune sovereign; that if it is an immune sovereign it is an immune sovereign in equity only; and that if it is an immune sovereign in equity only, that equitable immunity is only partial because the immuni- ty, such as it is, was originally designed to apply only to the person of the governor of the Commonwealth? The answer is simple. The court has not read the constitution as it should be read, and, as a result, has misinter- preted the document that it is charged by a sacred trust to read. Briefly, the doctrine of sovereign immunity, as presently pronounced by the Supreme Court of Pennsylvania, has no foundation in history, in law, in equity, in reason, or in policy. The court's continuation of the doctrine, replete with its appeals to the legislature to remedy the admittedly unjust results it breeds, is neither necessary nor proper. The court, while purporting to read the so-called sovereign immuni- ty article, 2 has never really examined the meaning of words such as "supreme" and "vested" in various Pennsylvania constitutions or the phrase that ends the first sentence of article IX, section 11 of the old constitution, "without sale, denial or delay." Nor has it really examined the meaning of the words "suits," "cases," "courts," and "manner" that appear in the second sentence. These are all words of art that have special meanings in the light of Pennsylvania history and politics. This article demonstrates that the true intentions of the founding fathers of Pennsylvania, in drafting article IX of the old Constitution of 1790, related to a limited immunity in equity only given to the governor (not the entire executive branch of government) by article IX, section 11 and by article V, section 6 of the same constitution. Part II which is entitled "Good Cases Make Bad Law" concerns some of the high court's current strain of reasoning as it relates to 2. The sovereign immunity article of the Pennsylvania Constitution is article 1, § II of the 1969 Constitution. This new constitution is the product of periodic amendments of the Constitution of 1873, which became effective on January 1, 1874, and which is commonly referred to as the Constitution of 1874. Unless otherwise stated, future references to article I, § 11 refer to the Constitution of 1969. selected fact patterns in the sovereign context. Part III sets the stage for the proper reading of the Pennsylvania Constitution by very briefly treating the rules of the game of constitutional interpretation. Part IV of this article furnishes some necessary historical perspectives; con- stitutional charts showing the relationship of the various Pennsylvania constitutions to each other in an historical context and their relationship to the question of sovereign immunity; and observations on both history and charts, which ineluctably demonstrate that the lawyer-draftsmen framers of the 1790 Constitution could not possibly have said that Pennsylvania is immune from all lawsuits without its consent. This second part of Part IV is entitled. -What the Constitutions in Fact Say." It will be apparent after reading Part IV that the Supreme Court of Pennsylvania has divined a meaning for article I, section 11 of the present constitution that manifestly was not intended by the framers of the Constitution of 1776, the Articles of Confederation, the Constitution of 1790, the Constitution of 1838. the Constitution of 1874, and is not supported by the Constitu- tion of 1969. Part V, "Nexus and Conclusions," connects the present constitution's article I, section 11 to the constitutional and historical perspectives outlined in Part IV, and shows how both the majority (pro- sovereign immunity) and minority (anti-sovereign immunity) wings of the high court have failed to perceive the nexus between policy and history, which gives them the power to right the wrongs of which both the majority and minority have complained. The epilogue of this article suggests an alternative approach to the law of immunity from the standpoint of preserving only a part of the court's reading of the so-called sovereign immunity clause, and reviews the conclusions that can accurately be drawn about sovereign immunity today. 3 II. Good Cases Make Bad Law Although the courts of Pennsylvania have never permitted recovery against the State in tort cases,4 they have pronounced formulae by which 3. Ordinarily, the Commonwealth responds to the pleadings in a sovereign immunity case with the preliminary objection of immunity and, therefore, the record fails to reveal detailed factual statements. Facts have been accumulated, however, by searching briefs and records, and through conversations with counsel and, in some cases, the victims of sovereign immunity. Also, the arguments presented in this article were presented to the members of the Supreme Court of Pennsylvania in 1975 in one of those cases-Zerby v. Department of Transportation, 464 Pa. 421, 346 A.2d 914 (1975). Counsel's argument in Zerby lasted forty- five minutes and not one member of the court asked a question about the argument or the brief. Since the Zerby case, not one of the arguments proposed in that brief, which are restated here, has been addressed or refuted by the court's majority. The minority of the court has also displayed a similar aversion to an historical interpretation and has merely repeated its own well-meaning platitudes about doing away with this outmoded doctrine. 4. At least one plaintiff has recovered in federal court. United States ex rel Fear v. Rundle, 506 F.2d 311 (3d Cir. 1974). The basis for recovery in this case was that the one could theoretically recover. That no one has ever been compensated by a Pennsylvania court in a sovereign immunity context has not deterred the courts from attaching importance to these formulae before they dismiss the complaints. The supreme court's