Common-law Sovereign Immunity: Why Connecticut Never Really Had it
| Publication year | 2021 |
| Pages | 265 |
79 CBJ 265. COMMON-LAW SOVEREIGN IMMUNITY: WHY CONNECTICUT NEVER REALLY HAD IT
Vol. 79, No. 4
December 2005
When it comes to the question of common-law sovereign immunity, the Connecticut Supreme Court acts as if it had its former name, Supreme Court of Errors, because our high court has for about 150 years been consistently and erroneously enforcing a common-law rule that never existed in this state. In the famous case of Horton v. Meskill,1 the Court said:
In Connecticut, we have long recognized the validity of the common-law rule that the state cannot be sued without its consent and that since the state can act only through its officers and agents a suit against a state officer is in effect one against the sovereign state. Textron, Inc. v. Wood, 167 Conn. 334, 389, 355 A.2d 307 [1974]; Fidelity Bank v. State, 166 Conn. 251, 253, 348 A.2d 633 [1974]; Baker v. Ives, 162 Conn. 295, 298, 294 A.2d 290 [1972]; State v. Kilburn, 81 Conn. 9, 11, 69 A. 1028 [1908].
The Court continued: "This rule had its origin in the ancient common law, predicated on the principle that the king, being the fountainhead of justice, could not be sued in his own courts."2
Finally, after misconstruing the common law of Connecticut, the Court went to Justice Oliver Wendell Holmes's opinion in Kawananakoa v. Polyblank,3 in which Justice Holmes, author of The Common Law,4 used French law and Roman law to justify sovereign immunity. In Kawanankoa, Justice Holmes upheld the sovereign immunity of the Territory of Hawaii. A State is sovereign, but a territory? That is like ruling that Litchfield County or the Town of Harwinton is "sovereign." In that case, Justice Holmes said:
A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.5
After citing a French source and a Roman source, he then extended "sovereign" immunity to a territory, "because the territory itself is the fountain from which rights ordinarily flow."6
Justice Holmes did not bother to explain, in clear and concise English,7 why the common law does not allow a citizen to sue "the authority that makes the law on which [a] right depends." The case concerned a mortgage foreclosure in which part of the property had been conveyed to the territory for a street. The appellants argued that the case could not proceed unless the territory were made a party. The territory had objected to being joined. Justice Holmes ruled that, because the organic law of Hawaii created the right on which appellants depended, the territory could not be sued without its consent.
But why not? If it owned an interest in the mortgaged property, and took that property subject to the mortgage, why should the territory be absolved of its obligations? It is one of the fundamental principles of a republic that the government is subject to the laws. How can a government be subject to the laws if it can, at its whim, avoid accountability?
Horton v. Meskill also cites Bergner v. State,8 in which Justice Raymond Baldwin discusses this rule of "the ancient common law" and how England allowed people to bring petitions to the King's Chancellor as the only way of litigating against the King. But this did not allow tort claims against the King, "because of the hoary maxim, `The king can do no wrong.'"9 Justice Baldwin then says, "Why legal principles spawned in feudal England should be the common law of this republic, we cannot tell. Suffice it to say that they are."10
Now let's look at this. First, as to the King's doing no wrong. The Declaration of Independence,11 which became law in July 1776, says, near the end of the second paragraph, that "The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these States." This is followed by a list of about two dozen "wrongs" allegedly committed by King George III. So, even if we had that "hoary maxim" before 1776, it was wiped out of American law when the delegates of the thirteen colonies--now States--including those from Connecticut, signed their names to that document.
But we can go back even further in time, to the Charter of 1662 granted to Connecticut by another King, Charles II. The Charter says that "the Company and Society of our...
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