Ganje: You Can(n’t) Sue City Hall | TSLN.com

Ganje: You Can(n’t) Sue City Hall

As a young fellow in Aberdeen I was taught that you can’t sue city hall. This was a curious statement to me. City hall consisted of a building with lot of government offices as well as the inscrutable police station. I wanted nothing to do with city hall. I would not want to own it, control or have any truck with it. My grandfather didn’t explain very well what he meant until I asked some questions. He pretty much said government was immune from legal responsibility. As he was the former sheriff I accepted what he said. I had not thought much about it until I was a little older. Then I learned in civics class “The king can do no wrong.” This maxim tells us the sovereign or state cannot commit a legal wrong. Can state government, city government and county government in South Dakota ever be accountable for its own acts? The legal principle of government or sovereign immunity freed governments from most claims and lawsuits unless the government consented to be sued. I will here write a few words about government responsibility and the unique nature of South Dakota’s state constitution on the subject of government immunity. Historical legal maxims about immunity are pretty strong. Old established Western European laws protected government at any cost. Consider these other legal maxims: “In his own kingdom the king has no equal.” “No time or place effects the king.”

In this piece I look at government immunity under state law – one of two important provisions in the state constitution quite different than comparable provisions of the federal constitution. Government immunity is not a license to govern in an indiscriminate fashion; it is a privilege of government. A better understanding of government immunity is helpful. The historical basis of immunity is that there can be no legal right against the authority that makes laws. Circumstances exist in which immunity may be waived. If a private citizen brings an action against a government employee because the employee is violating a law or statute, under federal law this fact may waive the immunity. Another exception, usually by statute, involves particular circumstances under which a government expressly waives immunity. These instances are not common. That is why the state constitution offers in extraordinary legal right – the right to recover for damage to private property.

In South Dakota you may sue city hall (read state government, county government and city government) but there are limitations. I will discuss as an example a harm done by a government to one’s private property. The history behind this constitutional claim for just compensation for injury to private property is interesting. In the mid 1800s the growing city of Chicago and its burgeoning city government caused injuries to private property during the construction of public improvements. Illinois adopted a state constitutional amendment providing that private property should be neither taken “nor damaged” for public use without compensation. This state constitutional amendment by the people of Illinois was followed by South Dakota in the adoption of the state constitution. The following is an example of a harm done by a government: a city has control over a street immediately abutting a privately owned building, and the city, while doing maintenance on the street, damages the privately owned building. The damage done in the example is not because of a formal government “taking” or because the government legally condemned a citizen’s private property but rather the damage occurred because of the city’s maintenance activity to the city street. The property owner could seek compensation for damages.

We distinguish constitutional takings from constitutional damages. Both the federal constitution and the South Dakota constitution have the well-established Takings Clause which tells us that private property may not be taken for public use without just compensation. We all know about that concept. A taking may happen when a government, or a government-approved utility, condemns land for future use for a right-of-way or takes land to be used by a city for a public street. Yet South Dakota has a separate constitutional provision called a “Damages Clause” or a “Damagings Clause.” This clause gives a citizen whose property is damaged by the government (again – a city government, a county government, or the state itself) a constitutional claim for injury to his property regardless of whether there is a “taking”. The defense of government immunity does not apply and is not used by the government when confronted with a constitutional damages claim. In the end it is possible to sue city hall. Indeed the king can do some harm.

“The historical basis of immunity is that there can be no legal right against the authority that makes laws. Circumstances exist in which immunity may be waived.

David Ganje. David Ganje of Ganje Law Office practices in the area of natural resources, environmental and commercial law. The website is Lexenergy.net


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January 1, 2020







































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