waiver of sovereign immunity in North Carolina

2022See Heath, 282 N.C. at 296 .

2022See Heath, 282 N.C. at 296 .

2022Sossamon, 563 U.S. at 284 (a waiver of sovereign immunity cannot be “implied” and must be “unequivocally expressed”). ¶ 19 Troy University argues that under this Court’s precedent in Guthrie v. North Carolina State Ports Authority, 307 N.C. 522 (1983), a sue and be sued clause “is not always construed as an express waiver of sovereign immunity and is not dispositive of the immunity defense when suit is brought against an agency of the State.” Id. at 538 .

2022Sossamon, 563 U.S. at 284 (a waiver of sovereign immunity cannot be “implied” and must be “unequivocally expressed”). ¶ 19 Troy University argues that under this Court’s precedent in Guthrie v. North Carolina State Ports Authority, 307 N.C. 522 (1983), a sue and be sued clause “is not always construed as an express waiver of sovereign immunity and is not dispositive of the immunity defense when suit is brought against an agency of the State.” Id. at 538 .

2025It noted, though, that later cases such as Whitfield v. Gilchrist, 348 N.C. 39 (1998), “include broad language that when read literally, and taken out of context, could [appear to] exclude contracts implied in fact from the waiver of sovereign immunity.” Lannan, 285 N.C.

2022As a result, the Whitfield Court “conclude[d] that a contract implied in law is insufficient to constitute a waiver of sovereign immunity.” Id., 348 N.C. at 40, 497 S.E.2d at 413 . ¶ 38 As Defendant highlights, Whitfield and other cases from this line around contracts implied in law sometimes include broad language that when read literally, and taken out of context, could also exclude contracts implied in fact from the waiver of sovereign immunity.

2022Sossamon, 563 U.S. at 284 (a waiver of sovereign immunity cannot be “implied” and must be “unequivocally expressed”). ¶ 19 Troy University argues that under this Court’s precedent in Guthrie v. North Carolina State Ports Authority, 307 N.C. 522 (1983), a sue and be sued clause “is not always construed as an express waiver of sovereign immunity and is not dispositive of the immunity defense when suit is brought against an agency of the State.” Id. at 538 .

2022Sossamon, 563 U.S. at 284 (a waiver of sovereign immunity cannot be “implied” and must be “unequivocally expressed”). ¶ 19 Troy University argues that under this Court’s precedent in Guthrie v. North Carolina State Ports Authority, 307 N.C. 522 (1983), a sue and be sued clause “is not always construed as an express waiver of sovereign immunity and is not dispositive of the immunity defense when suit is brought against an agency of the State.” Id. at 538 .

2022Thus, while Hyatt III, 139 S. Ct. at 1492, requires a State to acknowledge a sister State’s sovereign immunity, Thacker recognizes that a sue and be sued clause can act as a waiver of sovereign immunity when a state entity’s nongovernmental activity is being challenged. 139 S. Ct. at 1443. ¶ 17 The parties in this case disagree about how to characterize Troy University’s activities.

2022Thus, while Hyatt III, 139 S. Ct. at 1492, requires a State to acknowledge a sister State’s sovereign immunity, Thacker recognizes that a sue and be sued clause can act as a waiver of sovereign immunity when a state entity’s nongovernmental activity is being challenged. 139 S. Ct. at 1443. ¶ 17 The parties in this case disagree about how to characterize Troy University’s activities.

2022Id., 289 N.C. at 320 , 222 S.E.2d at 423 (spacing altered to start each consideration on a new line). ¶ 36 Smith spoke of the waiver of sovereign immunity in broad terms, only requiring a valid contract, in a case where the employment contract was based on statute.

2022Id., 289 N.C. at 320 , 222 S.E.2d at 423 (spacing altered to start each consideration on a new line). ¶ 36 Smith spoke of the waiver of sovereign immunity in broad terms, only requiring a valid contract, in a case where the employment contract was based on statute.

2022See id., 389 N.C. at 309, 320, 222 S.E.2d at 417 , 423–24 (“We hold, therefore, that whenever the State of North Carolina, through its authorized officers and agencies, enters into a valid contract, the State implicitly consents to be sued for damages on the contract in the event it breaches the contract.” (emphasis added)); see also Data General Corp. v. County of Durham, 143 N.C.

2022See id., 389 N.C. at 309, 320, 222 S.E.2d at 417 , 423–24 (“We hold, therefore, that whenever the State of North Carolina, through its authorized officers and agencies, enters into a valid contract, the State implicitly consents to be sued for damages on the contract in the event it breaches the contract.” (emphasis added)); see also Data General Corp. v. County of Durham, 143 N.C.

2007A Loving Co., 317 N.C. 623, 628 , 347 S.E.2d 369, 372 (1986) (quoting Casualty Co. v. Teer Co., 250 N.C. 547, 550 , 109 S.E.2d 171, 173 (1959)).

2007A Loving Co., 317 N.C. 623, 628 , 347 S.E.2d 369, 372 (1986) (quoting Casualty Co. v. Teer Co., 250 N.C. 547, 550 , 109 S.E.2d 171, 173 (1959)).

2007A Loving Co., 317 N.C. 623, 628 , 347 S.E.2d 369, 372 (1986) (quoting Casualty Co. v. Teer Co., 250 N.C. 547, 550 , 109 S.E.2d 171, 173 (1959)).

2007A Loving Co., 317 N.C. 623, 628 , 347 S.E.2d 369, 372 (1986) (quoting Casualty Co. v. Teer Co., 250 N.C. 547, 550 , 109 S.E.2d 171, 173 (1959)).

2000See Collins v. North Carolina Parole Commission, 344 N.C. 179 , 473 S.E.2d 1 (1996) (holding that the waiver of sovereign immunity under the Tort Claims Act was not limited to ordinary negligence, but applied for other degrees of negligence, including willful, wanton, and reckless conduct that does not rise to the level of intent).

2000See Collins v. North Carolina Parole Commission, 344 N.C. 179 , 473 S.E.2d 1 (1996) (holding that the waiver of sovereign immunity under the Tort Claims Act was not limited to ordinary negligence, but applied for other degrees of negligence, including willful, wanton, and reckless conduct that does not rise to the level of intent).

2026See, e.g., Green v. Kearney, 203 N.C.

2016However, even when this Court has rejected constitutional claims predicated upon Article II, Section 24, those decisions rest upon substantive considerations rather than upon the doctrine of sovereign immunity, see, e.g., Town of Emerald Isle, 320 N.C. at 648-52 , 360 S.E.2d at 761-63 ; Cheape v. Town of Chapel Hill, 320 N.C. 549, 557-60 , 359 S.E.2d 792, 797-99 (1987), with such results obtaining even in cases involving challenges to legislation related to annexation and the creation or alteration 15Even if the Town was required to plead a waiver of sovereign immunity, I believe that its comp

2016However, even when this Court has rejected constitutional claims predicated upon Article II, Section 24, those decisions rest upon substantive considerations rather than upon the doctrine of sovereign immunity, see, e.g., Town of Emerald Isle, 320 N.C. at 648-52 , 360 S.E.2d at 761-63 ; Cheape v. Town of Chapel Hill, 320 N.C. 549, 557-60 , 359 S.E.2d 792, 797-99 (1987), with such results obtaining even in cases involving challenges to legislation related to annexation and the creation or alteration 15Even if the Town was required to plead a waiver of sovereign immunity, I believe that its comp

2016The State’s argument in reliance upon the Town’s failure to specifically plead a waiver of sovereign immunity relies exclusively upon Vest v. Easley, in which the Court of Appeals noted that “[i]t is well-established law that with no allegation of waiver [of sovereign immunity] in a plaintiff’s complaint, the plaintiff is absolutely barred from suing the state and its public officials in their official capacities in an action for negligence.” 145 N.C.

2016The State’s argument in reliance upon the Town’s failure to specifically plead a waiver of sovereign immunity relies exclusively upon Vest v. Easley, in which the Court of Appeals noted that “[i]t is well-established law that with no allegation of waiver [of sovereign immunity] in a plaintiff’s complaint, the plaintiff is absolutely barred from suing the state and its public officials in their official capacities in an action for negligence.” 145 N.C.

2016Comm’n, 336 N.C. 200 , 443 S.E.2d 716 (1994), as establishing a waiver of sovereign immunity where state actors have, as Plaintiff argues here, “invade[d] or threaten[ed] to invade the personal or property rights of a citizen in disregard of the law.” 336 N.C. at 208 , 443 S.E.2d at 721 (emphasis in original).

2016Comm’n, 336 N.C. 200 , 443 S.E.2d 716 (1994), as establishing a waiver of sovereign immunity where state actors have, as Plaintiff argues here, “invade[d] or threaten[ed] to invade the personal or property rights of a citizen in disregard of the law.” 336 N.C. at 208 , 443 S.E.2d at 721 (emphasis in original).

2009Ed. 2d 106, 115 (1978) (quoting United, States v. Testan, 424 U.S. 392, 399 , 96 S. Ct. 948, 954 , 47 L.

2009Ed. 2d 106, 115 (1978) (quoting United, States v. Testan, 424 U.S. 392, 399 , 96 S. Ct. 948, 954 , 47 L.

2009Furthermore, “[i]t is *182 settled that a waiver of sovereign immunity ‘cannot be implied but must be unequivocally expressed.’ ” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58-59 , 98 S. Ct. 1670, 1677 , 56 L.

2009Furthermore, “[i]t is *182 settled that a waiver of sovereign immunity ‘cannot be implied but must be unequivocally expressed.’ ” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58-59 , 98 S. Ct. 1670, 1677 , 56 L.

2008This nexus between protection of the fundamental rights guaranteed in the Declaration of Rights and the waiver of sovereign immunity was reiterated by the North Carolina Supreme Court in Augur v. Augur, 356 N.C. 582, 589 , 573 S.E.2d 125, 130-31 (2002): Our courts are obligated to protect fundamental rights when those rights are threatened. . . .

2008This nexus between protection of the fundamental rights guaranteed in the Declaration of Rights and the waiver of sovereign immunity was reiterated by the North Carolina Supreme Court in Augur v. Augur, 356 N.C. 582, 589 , 573 S.E.2d 125, 130-31 (2002): Our courts are obligated to protect fundamental rights when those rights are threatened. . . .

2008Therefore, where it “clearly appears either that property or fundamental human rights are denied in violation of constitutional guarantees,” and where a statutory provision is specifically challenged by a person directly affected by it, declaratory relief as to the constitutional validity of that provision is appropriate. (quoting Jernigan v. State, 279 N.C. 556, 562 , 184 S.E.2d 259, 264 (1971)) (citations omitted).

2008Therefore, where it “clearly appears either that property or fundamental human rights are denied in violation of constitutional guarantees,” and where a statutory provision is specifically challenged by a person directly affected by it, declaratory relief as to the constitutional validity of that provision is appropriate. (quoting Jernigan v. State, 279 N.C. 556, 562 , 184 S.E.2d 259, 264 (1971)) (citations omitted).

2007“When the state comes into its courts seeking their aid in annulling a contract, it is governed, in general, by the same rules as the citizen.” Blount v. Spencer, 114 N.C. 770, 772 , 19 S.E. 93, 96 (1894).

2007“When the state comes into its courts seeking their aid in annulling a contract, it is governed, in general, by the same rules as the citizen.” Blount v. Spencer, 114 N.C. 770, 772 , 19 S.E. 93, 96 (1894).