sovereign immunity in Virginia

2025“The doctrine of sovereign immunity is ‘alive and well’ in Virginia.” Niese v. City of Alexandria, 264 Va. 230, 238 (2002) (quoting Messina v. Burden, 228 Va. 301, 307 (1984)).

2025Sovereign immunity “is alive and well in Virginia.” Messina v. Burden, 228 Va. 301, 307 (1984).

2026Sovereign immunity applies to both “[t]he Commonwealth and its agencies.” Gray, 276 Va. at 102 (quoting Billups v. Carter, 268 Va. 701, 707 (2004)).

2026Waiver occurs in two instances: 1) “where statutory language ‘explicitly and expressly,’ allows a private right of action,” and 2) “where a constitutional provision is ‘self-executing.’” Ibanez, 80 Va. App. at 190 (quoting Gray, 276 Va. at 102 ); see, e.g., Z.M., 304 Va. at 281-82 (discussing express waiver of sovereign immunity for actions arising from accidents involving vehicles owned by localities or school boards). 4 Petersen did not specify in her complaint whether her claims are against the board members in their individual or official capacities, but she, the appellees, and the circuit

2024While the plaintiff in Hinchey argued that the purpose of sovereign immunity is to protect state funds and should therefore not apply to the superintendent as she was not seeking to recover from the treasury, the Court “disagree[d] with Hinchey’s contention that the protection of the public purse is the sole justification for the doctrine of sovereign immunity.” Id. at 239 .

2024While the plaintiff in Hinchey argued that the purpose of sovereign immunity is to protect state funds and should therefore not apply to the superintendent as she was not seeking to recover from the treasury, the Court “disagree[d] with Hinchey’s contention that the protection of the public purse is the sole justification for the doctrine of sovereign immunity.” Id. at 239 .

2024Although the physicians were each employees of the University, which “no one question[ed]” was an “agency of the Commonwealth of Virginia [and therefore] entitled to the protection of the immunity of the state,” the Court found that “[a] physician who fails to use reasonable care in the treatment of a patient acts at his own risk, and is not entitled to invoke the doctrine of sovereign immunity.” Id. at 51, 55 .

2024Although the physicians were each employees of the University, which “no one question[ed]” was an “agency of the Commonwealth of Virginia [and therefore] entitled to the protection of the immunity of the state,” the Court found that “[a] physician who fails to use reasonable care in the treatment of a patient acts at his own risk, and is not entitled to invoke the doctrine of sovereign immunity.” Id. at 51, 55 .

2026Sovereign immunity In Virginia the doctrine of sovereign immunity represents “a rule of social policy, which protects the state from burdensome interference with the performance of its governmental functions and preserves its control over state funds, property, and instrumentalities.” City of Chesapeake v. Cunningham, 268 Va. 624, 633 (2004) (quoting City of Virginia Beach v. Carmichael Dev.

2026Sovereign immunity In Virginia the doctrine of sovereign immunity represents “a rule of social policy, which protects the state from burdensome interference with the performance of its governmental functions and preserves its control over state funds, property, and instrumentalities.” City of Chesapeake v. Cunningham, 268 Va. 624, 633 (2004) (quoting City of Virginia Beach v. Carmichael Dev.

2026The VTCA waives only the Commonwealth’s sovereign immunity and does not disturb the immunity of agencies: “[T]he Act provides an express, limited waiver only of the Commonwealth’s sovereign immunity but does not disturb the sovereign immunity of the Commonwealth’s agencies.” Rector & Visitors of the Univ. of Va. v. Carter, 267 Va. 242, 244 (2004).

2023See Code § 8.01-195.3(2)-(6) (listing exceptions). -9- Carter, 267 Va. 242, 245 (2004) (“Under the plain language of the [VTCA], the Commonwealth (and certain ‘transportation districts’ not here relevant) are the only entities for which sovereign immunity is waived.” (emphasis added)).12 If the legislature intended to incorporate the well-established municipal-liability test into VTCA’s main text, and thus retain the Commonwealth’s sovereign immunity for all governmental functions, it likely would have done so using similar language.

2025“The doctrine of sovereign immunity is ‘alive and well’ in Virginia.” Niese v. City of Alexandria, 264 Va. 230, 238 (2002) (quoting Messina v. Burden, 228 Va. 301, 307 (1984)).

2025“The doctrine of sovereign immunity is ‘alive and well’ in Virginia.” Niese v. City of Alexandria, 264 Va. 230, 238 (2002) (quoting Messina v. Burden, 228 Va. 301, 307 (1984)).

2025“Most importantly, the doctrine of sovereign immunity provides for ‘smooth operation of government’ and prevents citizens from ‘improperly influencing the conduct of governmental affairs through the threat or use of vexatious litigation.’” Id. at ___ (quoting Carmichael, 259 Va. at 499 ).

2025“Most importantly, the doctrine of sovereign immunity provides for ‘smooth operation of government’ and prevents citizens from ‘improperly influencing the conduct of governmental affairs through the threat or use of vexatious litigation.’” Id. at ___ (quoting Carmichael, 259 Va. at 499 ).

2024Sovereign immunity does not bar Montalla’s claims “based upon valid contracts.” Montalla has alleged that the services contracts between NXL and the Commonwealth were “valid contracts entered into by duly authorized agents of the government.” See id.

2024We note however that the 1977 version of the statute was before us in Wiecking, where we both relied on our prior cases and reaffirmed that the statute meant “that the doctrine of sovereign immunity has no application in actions based upon valid contracts entered into by duly authorized agents of the government.” 239 Va. at 553 . 12 To the extent that the claims are based upon a contract, the circuit court erred in sustaining the plea of sovereign immunity and the Court of Appeals erred to the extent that it affirmed that judgment.

2009In deciding the issue, the Court must consider the continued viability of the doctrine of sovereign immunity in the Commonwealth that would shield, “the state from burdensome interference with the performance of its governmental functions and preserve its control over state funds, property, and instrumentalities.” Virginia Bd. of Medicine v. VPTA, 13 Va. App. 458, 464 (1991) (authorities omitted).

2007The Court of Appeals determined that the jurisdiction issue turned on "the relationship between judicial review of the Board's actions and the doctrine of sovereign immunity." Id. at 464 , 413 S.E.2d at 63 .

2025Under the doctrine of sovereign immunity, “the Commonwealth and its agencies are immune from liability for the tortious acts or omissions of their agents and employees” unless an “express statutory or constitutional provision[] waiv[es] immunity.” Melanson v. Commonwealth, 261 Va. 178, 181 (2001).

2025Under the doctrine of sovereign immunity, “the Commonwealth and its agencies are immune from liability for the tortious acts or omissions of their agents and employees” unless an “express statutory or constitutional provision[] waiv[es] immunity.” Melanson v. Commonwealth, 261 Va. 178, 181 (2001).

2025Sovereign immunity is implemented to protect “the public purse, [provide] for smooth operation of government, [eliminate] public inconvenience and danger that might spring from officials being fearful to act . . . .” Messina v. Burden, 228 Va. 301, 308 (1984). “[I]f sovereign immunity applies, the court is without subject matter jurisdiction to adjudicate the claim.” Afzall v. Commonwealth, 273 Va. 226 , 230 (2007).

2024Sovereign immunity applies to both “actions at law for damages” and “suits in equity to restrain governmental action or to compel such action.” Afzall v. Commonwealth, 273 Va. 226 , 231 (2007) (quoting Alliance to Save the Mattaponi v. Commonwealth Dep’t of Env’t Quality, 270 Va. 423 , 455 (2005)).

2026Finally, we emphasize the central role the legislature plays in handling questions of sovereign immunity. “[O]nly the legislature acting in its policy-making capacity can abrogate the Commonwealth’s sovereign immunity.” Commonwealth v. Luzik, 259 Va. 198, 206 (2000).

2013"This is so because only the legislature acting in its policy-making capacity can abrogate the Commonwealth's sovereign immunity" and "vest the circuit court with jurisdiction." Commonwealth v. Luzik, 259 Va. 198, 206 , 524 S.E.2d 871, 876-77 (2000).

2011Sovereign immunity may also bar a declaratory judgment proceeding against the Commonwealth," Afzall v. Commonwealth, 273 Va. 226 , 231, 639 S.E.2d 279 , 282 (2007) (citations *371 and quotation marks omitted), and does so for merely statutory claims. [1] However, sovereign immunity does not preclude declaratory and injunctive relief claims based on self-executing provisions of the Constitution of Virginia or claims based on federal law.

2010Waiver of Sovereign Immunity “Only the General Assembly can determine as a matter of policy whether the Commonwealth’s sovereign immunity should be abrogated with regard to a particular type of legal action.” Ligon, 279 Va. at 317 , 689 S.E.2d at 668 -69 (citing Afzall, 273 Va. at 230, 639 S.E.2d at 281; Commonwealth v. Luzik, 259 Va. 198, 206 , 524 S.E.2d 871, 876 (2000)).

2023Any other interpretation would, according to Fogleman, result in “an unreasonable and absurd interpretation of the VHRA.” It is a foundational principle of sovereign immunity law that “[o]nly the General Assembly, acting in its capacity of making social policy, can abrogate the Commonwealth’s sovereign immunity.” Gray, 276 Va. at 102 (emphasis added) (quoting Alliance to Save the Mattaponi v. Commonwealth, 270 Va. 423 , 455 (2005)); see also Ligon, 279 Va. at 317 (“Only the General Assembly can determine as a matter of policy whether the Commonwealth’s sovereign immunity should be abrogated wi

2013"Only the General Assembly can determine as a matter of policy whether the Commonwealth's sovereign immunity should be abrogated with regard to a particular type of legal action." Ligon v. County of Goochland, 279 Va. 312, 316 , 689 S.E.2d 666, 668-69 (2010). "[B]ecause the Commonwealth can act only through individuals, the doctrine applies not only to the state, but also to certain government officials." Gray v. Virginia Sec'y of Transp., 276 Va. 93, 102 , 662 S.E.2d 66, 70-71 (2008).

2025See, e.g., Maddox v. Commonwealth, 267 Va. 657, 665 (2004) (“[A] school board is an agent or instrumentality of the state, not a true municipality, and therefore ‘partakes of the state’s sovereignty with respect to tort liability.’” (quoting Kellam, 202 Va. at 259 )); Linhart v. Lawson, 261 Va. 30, 36 (2001) (“As a general matter, school boards are immune governmental entities.” (citing Kellam, 202 Va. at 256 )).

1988Sovereign immunity protects the Board, Kellan v. School Board, 202 Va. 252 (1960), division superintendents and school principals.

2024Sovereign immunity only applies “to acts of judgment and discretion which are necessary to the performance of the governmental function itself.” Id.

2024Sovereign immunity only applies “to acts of judgment and discretion which are necessary to the performance of the governmental function itself.” Id.

2026Auth., 217 Va. 30, 34 (1976); Hoggard v. Richmond, 172 Va. 145, 147-48 (1939). “‘And because the Commonwealth can act only through individuals,’ the doctrine of sovereign immunity ‘applies not only to the state, but also to certain government officials.’” Ibanez v. Albemarle Cnty.

2026Auth., 217 Va. 30, 34 (1976); Hoggard v. Richmond, 172 Va. 145, 147-48 (1939). “‘And because the Commonwealth can act only through individuals,’ the doctrine of sovereign immunity ‘applies not only to the state, but also to certain government officials.’” Ibanez v. Albemarle Cnty.

2024When a former Gloucester County High School student filed a complaint against two students and the assistant principal alleging “simple and gross negligence, assault, and battery,” the Court explained that although “an individual working for an immune governmental entity is entitled to the protection of sovereign immunity under the common law, he is not immunized from suit” and that in order to overcome an employee’s derivative sovereign immunity, the - 15 - “‘degree of negligence . . . is elevated from simple to gross negligence.’” Burns, 283 Va. at 663 , 677 (quoting Colby v. Boyden, 241 Va.

1997However, both tendered instructions had a proviso that any such conduct could not constitute “a reckless disregard of the safety of persons and property.” The plaintiffs note that this proviso describes “the same kind and degree” of conduct proscribed by Code § 46.2-852, a reckless driving statute, which they assert establishes the applicable standard of care in these cases. *354 Granted Instructions T and U, respectively, contained similar language regarding speed and proceeding through a red light, but each had a different proviso articulating a different standard for determining a deviation

2026“Virginia, like all other jurisdictions, has always benefitted from the doctrine of sovereign immunity.” Kent Sinclair, 1 Virginia Civil Procedure § 2.29 (2026); see also Board of Public Works v. Gannt, 76 Va. 455, 461 (1882) (“It is an established principle of sovereignty, in all civilized nations, that a sovereign State cannot be sued in its own courts . . . without its consent and permission.”).

2026“Virginia, like all other jurisdictions, has always benefitted from the doctrine of sovereign immunity.” Kent Sinclair, 1 Virginia Civil Procedure § 2.29 (2026); see also Board of Public Works v. Gannt, 76 Va. 455, 461 (1882) (“It is an established principle of sovereignty, in all civilized nations, that a sovereign State cannot be sued in its own courts . . . without its consent and permission.”).

2000Most importantly, the doctrine of sovereign immunity provides for “smooth operation of government” and prevents “citizens from improperly influencing the conduct of governmental affairs through the threat or use of vexatious litigation.” Messina, 228 Va. at 308 , 321 S.E.2d at 660 ; accord Lentz v. Morris, 236 Va. 78, 81 , 372 S.E.2d 608, 610 (1988).

2000Most importantly, the doctrine of sovereign immunity provides for “smooth operation of government” and prevents “citizens from improperly influencing the conduct of governmental affairs through the threat or use of vexatious litigation.” Messina, 228 Va. at 308 , 321 S.E.2d at 660 ; accord Lentz v. Morris, 236 Va. 78, 81 , 372 S.E.2d 608, 610 (1988).

2014Id.; Colby v. Boyden, 241 Va. 125, 129 , 400 S.E.2d 184, 187 (1991).

1997However, both tendered instructions had a proviso that any such conduct could not constitute “a reckless disregard of the safety of persons and property.” The plaintiffs note that this proviso describes “the same kind and degree” of conduct proscribed by Code § 46.2-852, a reckless driving statute, which they assert establishes the applicable standard of care in these cases. *354 Granted Instructions T and U, respectively, contained similar language regarding speed and proceeding through a red light, but each had a different proviso articulating a different standard for determining a deviation

2025Although the text of the Eleventh Amendment speaks to a suit by a citizen of one State against another State (as in Chisholm), the Supreme Court has consistently held that the immunity of States from suit was “a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today . . . except as altered by the plan of the Convention or certain constitutional Amendments.” Alden, 527 U.S. at 728 . “‘Eleventh Amendment immunity’ . . . is convenient shorthand but something of a misnomer, for the sovereign immunity of the States nei

2025Although the text of the Eleventh Amendment speaks to a suit by a citizen of one State against another State (as in Chisholm), the Supreme Court has consistently held that the immunity of States from suit was “a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today . . . except as altered by the plan of the Convention or certain constitutional Amendments.” Alden, 527 U.S. at 728 . “‘Eleventh Amendment immunity’ . . . is convenient shorthand but something of a misnomer, for the sovereign immunity of the States nei

2011See Gray, 276 Va. at 102 , 662 S.E.2d at 71 ; Afzall, 273 Va. at 230, 639 S.E.2d at 281; Hinchey v. Ogden, 226 Va. 234, 241 , 307 S.E.2d 891, 895 (1983); Elizabeth River Tunnel Dist. v. Beecher, 202 Va. 452, 457 , 117 S.E.2d 685, 689 (1961).

2011See Gray, 276 Va. at 102 , 662 S.E.2d at 71 ; Afzall, 273 Va. at 230, 639 S.E.2d at 281; Hinchey v. Ogden, 226 Va. 234, 241 , 307 S.E.2d 891, 895 (1983); Elizabeth River Tunnel Dist. v. Beecher, 202 Va. 452, 457 , 117 S.E.2d 685, 689 (1961).

2025“Sovereign immunity protects municipalities from tort liability arising from governmental functions but not proprietary functions.” Patterson v. City of Danville, 301 Va. 181 , 189 (2022). “[W]hen governmental and proprietary functions coincide, ‘the governmental function is the overriding factor’ and the doctrine of sovereign immunity will shield the locality from liability.” Carmichael, 259 Va. at 499 (quoting Taylor v. Newport News, 214 Va. 9, 10 (1973)).

2001Plaintiff was in an automobile accident as a result of the malfunctioning light and sued the city for the failure to repair it. hi determining that the city was shielded by sovereign immunity, the Court rationalized that even though “the repair of a malfunctioning traffic signal bears some relationship to street maintenance and displays ... there is involved ‘the purpose of protecting the general health and public safety,’ a distinguishing feature of a governmental function.” Id. at 1006 , citing Taylor v. City of Newport News, 214 Va. 9, 10 , 197 S.E.2d 209, 210 (1973).

2025Bd. of Arlington Cnty., 199 Va. 169, 174 (1957). 7 See, e.g., Z.M., ___ Va. at ___ (“‘Sovereign immunity is a rule of social policy, which protects the state from burdensome interference with the performance of its governmental functions and preserves its control over state funds, property, and instrumentalities.’ ‘Most importantly, the doctrine of sovereign immunity provides for “smooth operation of government” and prevents citizens from “improperly influencing the conduct of governmental affairs through the threat or use of vexatious litigation.”’” (quoting City of Va. Beach v. Carmichael De

2025Bd. of Arlington Cnty., 199 Va. 169, 174 (1957). 7 See, e.g., Z.M., ___ Va. at ___ (“‘Sovereign immunity is a rule of social policy, which protects the state from burdensome interference with the performance of its governmental functions and preserves its control over state funds, property, and instrumentalities.’ ‘Most importantly, the doctrine of sovereign immunity provides for “smooth operation of government” and prevents citizens from “improperly influencing the conduct of governmental affairs through the threat or use of vexatious litigation.”’” (quoting City of Va. Beach v. Carmichael De