Mary LEADBETTER, Plaintiff and Appellant, v. Richard ROSE, Ph.D., Defendant, and University of North Dakota, Defendant and Appellee.
Civ. No. 900200
Supreme Court of North Dakota
March 19, 1991
431 N.W.2d 431
ERICKSTAD, Chief Justice.
ERICKSTAD, C.J., and LEVINE, VANDE WALLE and GIERKE, JJ., concur.
Janet Seaworth (argued), Bismarck, for defendant and appellee. Appearance by Gary R. Thune, Sp. Asst. Atty. Gen., Bismarck.
ERICKSTAD, Chief Justice.
Mary Leadbetter appeals from a judgment dismissing, on the grounds of sovereign immunity, her action against the University of North Dakota [UND]. We affirm.
Leadbetter, a physiology student at UND, sued UND and Dr. Richard Rose, the chairman of the physiology department at UND, alleging that Rose sexually assaulted her while they were attending a meeting of the Federation of American Societies for Experimental Biology in New Orleans in March 1989. She alleged that UND breached its duty to investigate her complaint and to provide her with a safe school environment and supervisors. UND moved to dismiss Leadbetter‘s action on the grounds of sovereign immunity. The district court granted the motion, concluding that sovereign immunity barred Leadbetter‘s action against UND. Leadbetter appealed.1
Leadbetter argues that UND is not an arm of the State of North Dakota and therefore sovereign immunity does not bar her action. UND responds that the State of North Dakota is the real party in interest.
When an action is essentially against the state to recover money, the state is the real party in interest and is entitled to invoke sovereign immunity even though it is not a named defendant. Kristensen v. Strinden, 343 N.W.2d 67 (N.D. 1983). A court may look beyond the nominal parties to determine whether or not the state is the real party in interest. Id.
A majority of courts that have considered the relationship of a state university to its state have concluded that, for purposes of the Eleventh Amendment,2 a suit against the university is a suit against the state. Durham v. Parks, 564 F.Supp. 244 (D.C.Minn.1983); Vaughn v. Regents of University of California, 504 F.Supp. 1349 (E.D.Cal.1981) and cases cited therein. The status of a state university depends upon the individual circumstances of each case. Durham, supra; Vaughn, supra.
The most important circumstance in determining the status of a state university is whether a judgment against that university will be paid from the state treasury. Durham, supra; Vaughn, supra. Other circumstances include: (1) whether the university is performing a governmental or proprietary function, (2) whether the university is separately incorporated, (3) whether the university can sue and be sued and enter into contracts, (4) whether the state controls the university‘s operations, and (6) whether the state has immunized itself from responsibility for the university‘s operations. Id. We examine the relationship of UND to the State of North Dakota.
“All colleges, universities, and other educational institutions, for the support of which lands have been granted to this state, or which are supported by a public tax, shall remain under the absolute and exclusive control of the state....”
“1. A board of higher education, to be officially known as the state board of higher education, is hereby created for the control and administration of the following state educational institutions, to wit:
“a. The state university and school of mines, at Grand Forks, with their substations.
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“2. a. The state board of higher education shall consist of seven members, all of whom shall be qualified electors and taxpayers of the state, and who shall have resided in this state for not less than five years immediately preceding their appointment, to be appointed by the governor, by and with the consent of the senate, from a list of names selected as hereinafter provided.”
See also
The State Board of Higher Education is a part of the executive branch of government. See Nord v. Guy, 141 N.W.2d 395 (N.D.1966). The appointment of the Board of Higher Education by the governor with the consent of the Senate is indicative of the State‘s retention of a measure of control over the governing body of UND. See Vaughn, supra, 504 F.Supp. at 1353. The State‘s control over the Board is further demonstrated by the Legislature‘s requirement for the Board to make biennial reports to the governor and the office of management and budget about enrollments, major functions and programs, major goals and objectives, and finances.
Although the Board has authority over some aspects of UND [
Leadbetter also asserts that UND generates revenue from sources other than legislative appropriations and that a judgment against UND “need not and in fact most likely would not come from the state treasury.” However, UND relies upon some legislative appropriations for its support and to the extent that any judgment obtained by Leadbetter would be satisfied out of funds derived from those appropriations, that judgment would be from the State treasury. Vaughn, supra. Moreover, we agree with Vaughn, supra, that the proper inquiry is whether any judgment will have to be paid out of the State treasury or other sources of State funds; i.e., funds otherwise available to the State.
These factors lead us to conclude that UND is an arm of the State of North Dakota and is therefore entitled to invoke sovereign immunity as a bar to Leadbetter‘s lawsuit.
Leadbetter argues that this court should abrogate or modify the doctrine of sovereign immunity. She contends that the original reasons for the doctrine no longer exist and that no sufficient reason exists to retain it. Relying on Kitto v. Minot Park District, 224 N.W.2d 795 (N.D.1974), she asserts that because sovereign immunity is a product of judicial origin, this court may abrogate or modify it.
“All courts shall be open, and every man for any injury done him in his lands, goods, person or reputation shall have remedy by due process of law, and right and justice administered without sale, denial or delay. Suits may be brought against the state in such manner, in such courts, and in such cases, as the legislative assembly may, by law, direct.”
In Kitto, this court, within certain limits, abolished the judicial doctrine of immunity for governmental bodies. We held that governmental bodies, other than the State, could be sued for damages for negligence, wrongful acts, or omissions of their agents and employees. We defined governmental bodies as counties, townships, park districts, school districts, cities, and other local governmental or political subdivisions. In analyzing the extent to which governmental immunity was based upon the predecessor of
In Senger v. Hulstrand Construction, Inc., 320 N.W.2d 507 (N.D.1982), this court considered whether or not sovereign immunity could be judicially abrogated. We observed that
“Article I, § 9, of the North Dakota Constitution as a delegation to the Legislature of the power to regulate the State‘s [amenability] to suit and not as an invitation to the court to invade that domain. See Worthington, supra 598 P.2d at 804.
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“Article I, § 9 of the North Dakota Constitution entrusts the matter of sovereign immunity to the Legislative Assembly.” Senger, supra, 320 N.W.2d at 510.
We therefore declined to judicially abrogate sovereign immunity, and we have consistently adhered to that decision. Schloesser v. Larson, 458 N.W.2d 257 (N.D.1990); Dickinson Public School District v. Sanstead, 425 N.W.2d 906 (N.D.1988); Kristensen v. Strinden, 343 N.W.2d 67 (N.D. 1983); Patch v. Sebelius, 320 N.W.2d 511 (N.D.1982). We are not persuaded that those recent decisions should be revisited, and we reaffirm that
However, in other contexts, we have said that our open courts provision is not absolute and does not require a remedy for every alleged wrong. Hanson v. Williams County, 389 N.W.2d 319 (N.D.1986); Andrews v. O‘Hearn, 387 N.W.2d 716 (N.D. 1986). In the context of suits against the State, the second sentence of
Leadbetter also argues that absolute sovereign immunity violates the equal protection clause of the United States4 and the North Dakota Constitutions.5 She asserts that sovereign immunity creates an impermissible discriminatory classification between individuals injured by State tortfeasors and by private tortfeasors.6 She
In Kavadas v. Lorenzen, 448 N.W.2d 219, 221-222 (N.D.1989), we recently reviewed our standards for analyzing equal protection claims:
“Our standard of review for analyzing equal protection claims depends on the right allegedly infringed upon by the challenged legislative classification. We apply strict scrutiny to legislative classifications that are inherently suspect or infringe upon fundamental rights, and we strike down the challenged classification unless it promotes a compelling government interest and the distinction drawn is necessary to further its purpose.... If a legislative classification infringes upon important substantive rights, we apply an intermediate standard of review, and we uphold the classification if it bears a close correspondence to the legislative goals.... We apply a rational basis test to legislative classifications that are not inherently suspect, or do not infringe upon fundamental or important substantive rights, and we uphold the classification unless it is patently arbitrary and bears no rational relationship to a legitimate governmental purpose....” [Citations omitted.]
See also Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 108 S.Ct. 2481, 101 L.Ed.2d 399 (1988).
Although Leadbetter claims that sovereign immunity creates an “invidious classification,” she has cited no persuasive authority for that claim or for the proposition that sovereign immunity violates the equal protection clause of the United States Constitution. It has generally been held that the doctrine of sovereign immunity and classifications under that doctrine are rationally related to legitimate government interests and therefore do not violate equal protection. Crowder v. Dept. of State Parks, 228 Ga. 436, 185 S.E.2d 908 (1971); Sousa v. State, 115 N.H. 340, 341 A.2d 282 (1975); Hutchinson v. Board of Trustees of University of Alabama, 288 Ala. 20, 256 So.2d 281 (1971); Winston v. Reorganized School Dist. R-2, 636 S.W.2d 324 (Mo.1982). We conclude that, under the rational basis test, sovereign immunity does not violate the equal protection clause of the Fourteenth Amendment to the United States Constitution.
In Patch v. Sebelius, 320 N.W.2d 511 (N.D.1982), we applied the intermediate level of scrutiny to a classification based upon sovereign immunity and held that a statute conditioning a tort victim‘s right to recover from the State upon the State‘s purchase of liability insurance7 had a sufficiently
Leadbetter also contends that sovereign immunity unduly impinges on her right to travel and places an undue burden on interstate commerce under the United States Constitution. However, she has cited no persuasive authority for those arguments.
Relying upon Justice Brennan‘s dissent in Welch v. Texas Dept. of Highways and Public Transportation, 483 U.S. 468, 107 S.Ct. 2941, 97 L.Ed.2d 389 (1987), Leadbetter also contends that the First8 and Fourteenth Amendments of the United States Constitution negate the Eleventh Amendment requirement that a State must consent to a suit by one of its own citizens. Leadbetter‘s argument ignores that a plurality in Welch did not overrule Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), and the principle that the Eleventh Amendment of the United States Constitution bars a citizen from bringing suit against that citizen‘s own state in federal court unless the state waives its immunity and consents to suit in federal court. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Our interpretation of
Finally, we believe the following comments by the Georgia Supreme Court in Crowder v. Dept. of State Parks, supra, 185 S.E.2d at 911, are applicable to sovereign immunity in North Dakota:
“If this is a harsh rule, and if it does not have the approval of the people of the State, there is a definite way, a plain way, and a legal way, whereby it can be changed. This court has always held that the State could expressly consent to be sued. Therefore a very simple and brief enactment of the legislature giving this consent is all that is required in order to permit a suit against the State.”
See also Best Products Co., Inc. v. Spaeth, 461 N.W.2d 91 (N.D.1990).
The district court judgment is affirmed.
GIERKE and VANDE WALLE, JJ., concur.
MESCHKE, Justice, dissenting.
Because I believe that no part of state government is above or beyond the law, I respectfully dissent.
Years ago, this court “solicit[ed] legislative action” on the “matter of sovereign immunity of the state itself.” Kitto v. Minot Park District, 224 N.W.2d 795, 803 (N.D.1974). “The injustices of state immunity remain for one who is injured by the wrongful act of the state government.” Id. Those injustices remain still.
When government is not governed by the same laws as its citizens and private institutions, it is troubling. Sovereign immunity is a hallmark of a totalitarian form of government, not of a constitutional democracy, as recent events in eastern Europe tend to evidence. Schloesser v. Larson, 458 N.W.2d 257 (N.D.1990) (Meschke, Justice, dissenting). “These outmoded and undemocratic concepts [‘sovereign and governmental immunities‘], buttressed on most dubious foundations, have no place as a
In my separate opinions in Schloesser v. Larson and in Dickinson Public School District v. Sanstead, 425 N.W.2d 906, 910 (N.D.1988), I detailed my reasons for concluding that sovereign immunity is textually unfounded, lacks historical accuracy, and is judicially irrational. I will not repeat my reasons here, but only reiterate that “[i]t does not make sense to read the subordinate sentence in the ‘open courts’ Declaration [of Rights,
Today‘s opinion upholds sovereign immunity on precedent, not on reason. (“[W]e have consistently adhered to that decision“). “But stare decisis is no more a barrier to judicial reconsideration of the ‘injustices of state immunity’ than to abrogation of governmental immunity for the political subdivisions of the state. Kitto v. Minot Park District, 224 N.W.2d 795, 802-03 (N.D.1974). Unjust and unsupportable interpretations should be reconsidered.” Schloesser, 458 N.W.2d at 261 (Meschke, Justice, dissenting). Many “courts, following long and arduous weighing of of [sic] the various policy factors, have judicially abolished such immunity for reasons already stated of anachronism and historical inaccuracy, of unsuitability to democratic American institutions, as unfitting modern notions of social justice to injury victims.” 2 American Law of Torts § 6:7, pp. 38-39 (footnotes omitted). This court has on occasion reconsidered and overruled other past precedents when important. Otter Tail Power Co. v. Von Bank, 72 N.D. 497, 8 N.W.2d 599 (1942); Iverson v. Lancaster, 158 N.W.2d 507 (N.D.1968); Melland v. Johanneson, 160 N.W.2d 107 (N.D.1968). Today‘s decision scarcely reconsiders, but rather simply perpetuates precedent.
The only added rationalization in today‘s decision, that the majority‘s interpretation “is consistent with the United States Supreme Court‘s interpretation of the Eleventh Amendment to the United States Constitution for suits in federal court,” is puzzling. It is agreed among all concerned with confused federal procedure that the “Eleventh Amendment does not apply in state courts.” See Will v. Michigan Dept. of State Police, 491 U.S. 58, 109 S.Ct. 2304, 2307, 105 L.Ed.2d 45 (1989) (Justice White for a five Justice majority) and 109 S.Ct. at 2312 (Justice Brennan for a four Justice minority). Compare Howlett v. Rose, — U.S. —, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990). The Eleventh Amendment only reduces a state‘s responsibility in federal courts; it does not enshrine the sovereign immunity of any state.
Law equally applicable to citizen and government alike could acquit the University from any liability in this kind of case. A principal is not usually liable for an intentional tort committed by an agent acting outside the scope of employment, as where the agent acts for his own personal gratification and adversely to the principal. See 3 Am.Jur.2d Agency § 280 (1986). While there are factual elements in this defense (and perhaps a qualification if the principal knows of the agent‘s wayward propensities), equal application of the law would often avoid the liability of a principal for an errant agent. See Lyon v. Carey, 533 F.2d 649 (D.C.Cir.1976) (Question for jury whether rape by deliveryman stemmed from personal purpose or arose from trucking company‘s business, but affirmed JNOV for store that sent the bed for delivery). Compare Marston v. Minneapolis Clinic of Psychiatry, 329 N.W.2d 306 (Minn.1982); Binstock v. Fort Yates Public School District No. 4, 463 N.W.2d 837 (N.D.1990). Unfortunately, the judicial branch again chooses to immunize a part of government from generally applicable law.
For these reasons, I respectfully dissent.
LEVINE, J., concurs.
Paul and Lynnette WITTHAUER, individually, and as next friends of Lindsey Witthauer, a minor, Plaintiffs and Appellees, v. BURKHART ROENTGEN, INC., Defendant and Appellant. and FARGO CLINIC, LTD., a.k.a., Merit-Care, Defendant, Third Party Plaintiff and Appellee, v. BURKHART ROENTGEN, INC., Third Party Defendant, Fourth Party Plaintiff and Appellant, v. DR. MACH GmbH & CO., Fourth Party Defendant.
Civ. No. 900219
Supreme Court of North Dakota
March 19, 1991
Notes
“The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.”
In Kristensen, supra, 343 N.W.2d at 72, n. 4, we said that the basic principles relating to nominal and real parties in interest in North Dakota are substantially similar to Eleventh Amendment analysis.
Leadbetter also asserts that
“15-10-17.2. Claims against institutions of higher education—Continuing appropriation. Any individual injured by an employee of a public institution of higher education may submit a claim to the president of the institution. As used in this section, ‘claim’ means a monetary demand upon the state for physical injury or property damage arising from activities of an employee of a public institution of higher education. The institution, upon approval of the state board of higher education, may approve and pay a claim for less than one thousand dollars. If the claim is approved, and if there are funds available for payment, the funds are hereby appropriated for that purpose. This section is not a waiver of any sovereign immunity of the state.”
That statute was enacted in 1989 after the alleged conduct involved in this case, and it is not applicable to this action.
Leadbetter also argues that
“‘32-12.1-15. State agencies authorized to purchase insurance.
“‘1. The state or any state agency, bureau, or department may insure against liabilities provided by this chapter for its own protection and for the protection of any state employee. If a premium savings will result therefrom, the policies of insurance may be taken out for more than one year, but in no event beyond a period of five years.
“‘2. If the state or any state agency, bureau, or department shall purchase insurance pursuant to this section, the purchaser shall waive its immunity to suit only to the types of insurance coverage purchased and only to the extent of the policy limits of the coverage. Provided, the purchaser or its insurance carrier is not liable for claims arising out of the conduct of a ridesharing arrangement, as defined in section 8-02-07....‘” Patch v. Sebelius, supra, 320 N.W.2d at 512, n. 2.