Confusion Over Sovereign Immunity: What Is Article II, Section 18 About?

Abstract

Article II, Section 18 of the Montana Constitution (“State subject to suit”) says “[t]he state, counties, cities, towns, and all other local governmental entities shall have no immunity from suit for injury to a person or property, except as may be specifically provided by law by a two-thirds vote of each house of the legislature.” Lawyers commonly understand this provision to waive the state’s “sovereign immunity,” except when a supermajority of the legislature confers such immunity by statute.

Sovereign immunity and related doctrines grew from roots in the common law long before Montana statehood. There are two main strands of immunities at play in claims brought against a state and its officers. First, sovereign immunity protects a state from jurisdiction in a court without its consent, and from entity liability for damages in civil suits. It arises from principles of sovereignty in constitutional law, including popular sovereignty, under which the source of the law may not be subjected to the law. Second, personal immunity protects state officers from personal liability for damages in civil suits for actions taken as state officers. It arises from public policy concerns in tort law, under which a fear of civil suits may interfere with an officer’s faithful execution of his duties. Personal immunity can be absolute depending on an officer’s function, and can be qualified depending on whether the officer acted in good faith. The forms of sovereign immunity that come to Montana law through the Montana Constitution, the legislature, and judicial decisions draw on these various immunities.