sovereign immunity in Vermont

2018Denis Bail Bonds, Inc. v. State, 159 Vt. 481 , 484–85 (1993); see also American Trucking Ass'ns, Inc. v. Conway, 152 Vt. 363, 376 (1989) (holding that the doctrine of sovereign immunity precludes the maintenance of actions for the recovery of money against the State unless the State has consented to be sued).

2002Denis Bail Bonds, Inc. v. State, 159 Vt. 481, 484-85 , 622 A.2d 495, 497 (1993); see also American Trucking Ass’ns, Inc. v. Conway, 152 Vt. 363, 376 , 566 A.2d 1323, 1331 (1989) (holding that the doctrine of sovereign immunity precludes the maintenance of *223 actions for the recovery of money against the State unless the State has consented to be sued).

2019Sovereign Immunity The State asserts that, even if the trespass and nuisance claims are not time-barred, they are barred by the doctrine of sovereign immunity to the extent they seek money damages.6 “Sovereign immunity bars suits against the State unless immunity is expressly waived by statute.” Sabia v. State, 164 Vt. 293, 298 (1995) (citing LaShay v. Department of Social & Rehabilitation Servs., 160 Vt. 60, 67 (1993)).

2019Sovereign Immunity The State asserts that, even if the trespass and nuisance claims are not time-barred, they are barred by the doctrine of sovereign immunity to the extent they seek money damages.6 “Sovereign immunity bars suits against the State unless immunity is expressly waived by statute.” Sabia v. State, 164 Vt. 293, 298 (1995) (citing LaShay v. Department of Social & Rehabilitation Servs., 160 Vt. 60, 67 (1993)).

2018In Hudson , we declined to adopt the public-duty doctrine as a defense to negligence cases against individual municipal employees. 161 Vt. at 178 -79 , 638 A.2d at 568 (concluding that "[i]n the absence of the public duty doctrine or a statute specifically limiting liability, a municipal employee who commits a tortious act is personally liable to the injured person, even though the employee is engaged in a governmental function and the municipality is exempt under the doctrine of sovereign immunity"); cf. Corbin v. Buchanan , 163 Vt. 141 , 143-45, 657 A.2d 170 , 172 (1994) (concluding that tow

2018In Hudson , we declined to adopt the public-duty doctrine as a defense to negligence cases against individual municipal employees. 161 Vt. at 178 -79 , 638 A.2d at 568 (concluding that "[i]n the absence of the public duty doctrine or a statute specifically limiting liability, a municipal employee who commits a tortious act is personally liable to the injured person, even though the employee is engaged in a governmental function and the municipality is exempt under the doctrine of sovereign immunity"); cf. Corbin v. Buchanan , 163 Vt. 141 , 143-45, 657 A.2d 170 , 172 (1994) (concluding that tow

2024“Sovereign immunity protects the state from suit unless immunity is expressly waived by statute.” McMurphy v. State, 171 Vt. 9, 11 (2000) (quoting LaShay v. Department of Social & Rehabilitation Servs., 160 Vt. 60, 67 (1993)).

2019Sovereign Immunity The State asserts that, even if the trespass and nuisance claims are not time-barred, they are barred by the doctrine of sovereign immunity to the extent they seek money damages.6 “Sovereign immunity bars suits against the State unless immunity is expressly waived by statute.” Sabia v. State, 164 Vt. 293, 298 (1995) (citing LaShay v. Department of Social & Rehabilitation Servs., 160 Vt. 60, 67 (1993)).

2024“Sovereign immunity protects the state from suit unless immunity is expressly waived by statute.” McMurphy v. State, 171 Vt. 9, 11 (2000) (quoting LaShay v. Department of Social & Rehabilitation Servs., 160 Vt. 60, 67 (1993)).

2002“Sovereign immunity protects the state from suit unless immunity is expressly waived by statute.” McMurphy v. State, 171 Vt. 9, 11 , 757 A.2d 1043, 1045 (2000) (internal quotation marks and citation omitted).

2003See City of S. Burlington v. Dep’t of Corr., 171 Vt. 587, 591 , 762 A.2d 1229, 1232 (2000) (mem.) (§ 4472 precludes collateral attack even where the zoning body’s authority to impose permit conditions is challenged under doctrine of sovereign immunity); Town of Charlotte v. Richmond, 158 Vt. 354, 357 , 609 A.2d 638, 639-40 (1992) (§ 4472 precludes later assertion of affirmative defenses); Town of Sandgate v. Colehamer, 156 Vt. 77, 85 , 589 A.2d 1205, 1210 (1990) (§ 4472(d) applies to defenses raised in enforcement proceedings); Phillips Constr.

2003See City of S. Burlington v. Dep’t of Corr., 171 Vt. 587, 591 , 762 A.2d 1229, 1232 (2000) (mem.) (§ 4472 precludes collateral attack even where the zoning body’s authority to impose permit conditions is challenged under doctrine of sovereign immunity); Town of Charlotte v. Richmond, 158 Vt. 354, 357 , 609 A.2d 638, 639-40 (1992) (§ 4472 precludes later assertion of affirmative defenses); Town of Sandgate v. Colehamer, 156 Vt. 77, 85 , 589 A.2d 1205, 1210 (1990) (§ 4472(d) applies to defenses raised in enforcement proceedings); Phillips Constr.

2025Sys. of Vt., 174 Vt. 404, 408 (2002), and must “be strictly construed, in terms of its scope, in favor of the sovereign.” Sossamon v. Texas, 563 U.S. 277, 285 (2011) (quoting Lane v. Pena, 518 U.S. 187, 192 (1996)); see also Depot Square Pizzeria, LLC v. Dep’t of Taxes, 2017 VT 29, ¶ 11 , 204 Vt. 536 , 542, 169 A.3d 204 (“[W]aivers of sovereign immunity must be express and we construe waivers narrowly.”).

2025Sys. of Vt., 174 Vt. 404, 408 (2002).

2025A waiver of a state’s sovereign immunity must “be strictly construed, in Entry Regarding Motions Page 4 of 8 23-CV-05354 K.S. et al v. Vermont Department of Children and Families et al terms of its scope, in favor of the sovereign.” Sossamon v. Texas, 563 U.S. 277, 285 (2011) (quoting Lane v. Pena, 518 U.S. 187, 192 (1996)).

2017This standard is substantially more protective of free exercise rights than the First Amendment, Cutter v. Wilkinson, 544 U.S. 709 , 714–16 (2005), and presumably the Vermont Constitution.4 But see Sossamon v. Texas, 563 U.S. 277 , 285 (2011) (RLUIPA does not operate to waive a State’s sovereign immunity to damages claims); Holland v. Goord, 758 F.3d 215, 224 (2d Cir. 2014) (“RLUIPA does not authorize claims for monetary damages against state officers in either their official or individual capacities.”).

2018Denis Bail Bonds, Inc. v. State, 159 Vt. 481 , 484–85 (1993); see also American Trucking Ass'ns, Inc. v. Conway, 152 Vt. 363, 376 (1989) (holding that the doctrine of sovereign immunity precludes the maintenance of actions for the recovery of money against the State unless the State has consented to be sued).

2002Denis Bail Bonds, Inc. v. State, 159 Vt. 481, 484-85 , 622 A.2d 495, 497 (1993); see also American Trucking Ass’ns, Inc. v. Conway, 152 Vt. 363, 376 , 566 A.2d 1323, 1331 (1989) (holding that the doctrine of sovereign immunity precludes the maintenance of *223 actions for the recovery of money against the State unless the State has consented to be sued).

1993In the absence of the public duty doctrine or a statute specifically limiting liability, a municipal employee who commits *179 a tortious act is personally liable to the injured person, even though the employee is engaged in a governmental function and the municipality is exempt under the doctrine of sovereign immunity. 4 McQuillin, supra, § 12.211.10, at 281; see Marshall, 121 Vt. at 424 , 160 A.2d at 767 .

1993In the absence of the public duty doctrine or a statute specifically limiting liability, a municipal employee who commits *179 a tortious act is personally liable to the injured person, even though the employee is engaged in a governmental function and the municipality is exempt under the doctrine of sovereign immunity. 4 McQuillin, supra, § 12.211.10, at 281; see Marshall, 121 Vt. at 424 , 160 A.2d at 767 .

2019Compare Corum, 413 S.E.2d at 291-92 (stating that common law theory of sovereign immunity must yield to constitutional rights and thus “cannot stand as a barrier to North Carolina citizens who seek to remedy violations of their [constitutional] rights”) with Figueroa v. State, 604 P.2d 1198, 1206 (Haw. 1979) (“[I]n a suit against the state, there cannot be a right to money damages without a waiver of sovereign immunity and we regard as unsound the argument that all substantive rights of necessity create a waiver of sovereign immunity such that money damages are available.”), and McKenna v. Jul

2019Compare Corum , 413 S.E.2d at 291-92 (stating that common law theory of sovereign immunity must yield to constitutional rights and thus "cannot stand as a barrier to North Carolina citizens who seek to remedy violations of their [constitutional] rights"), with Figueroa v. State , 61 Haw. 369 , 604 P.2d 1198 , 1206 (1979) ("[I]n a suit against the state, there cannot be a right to money damages without a waiver of sovereign immunity and we regard as unsound the argument that all substantive rights of necessity create a waiver of sovereign immunity such that money damages are available."), and M

2018Levinsky v. Diamond, 151 Vt. 178, 183 (1989).

2018Levinsky v. Diamond, 151 Vt. 178, 183 (1989).

2018"Absent insurance coverage, those functions which are governmental are protected by the doctrine of sovereign immunity, while, in contrast, the governmental unit will be liable for injuries caused or sustained in furtherance of its proprietary functions." Dugan v. City of Burlington , 135 Vt. 303 , 304, 375 A.2d 991 , 992 (1977).

2018"Absent insurance coverage, those functions which are governmental are protected by the doctrine of sovereign immunity, while, in contrast, the governmental unit will be liable for injuries caused or sustained in furtherance of its proprietary functions." Dugan v. City of Burlington , 135 Vt. 303 , 304, 375 A.2d 991 , 992 (1977).

2025Sys. of Vt., 174 Vt. 404, 408 (2002), and must “be strictly construed, in terms of its scope, in favor of the sovereign.” Sossamon v. Texas, 563 U.S. 277, 285 (2011) (quoting Lane v. Pena, 518 U.S. 187, 192 (1996)); see also Depot Square Pizzeria, LLC v. Dep’t of Taxes, 2017 VT 29, ¶ 11 , 204 Vt. 536 , 542, 169 A.3d 204 (“[W]aivers of sovereign immunity must be express and we construe waivers narrowly.”).

2025A waiver of a state’s sovereign immunity must “be strictly construed, in Entry Regarding Motions Page 4 of 8 23-CV-05354 K.S. et al v. Vermont Department of Children and Families et al terms of its scope, in favor of the sovereign.” Sossamon v. Texas, 563 U.S. 277, 285 (2011) (quoting Lane v. Pena, 518 U.S. 187, 192 (1996)).

2025The “States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the [United States] Constitution,” PennEast Pipeline Company, LLC v. New Jersey, 141 S. Ct. 2244 , 2258 (2021) (citation omitted), and was retained as part of the country’s “original constitutional design.” Franchise Tax Bd. of Calif. v. Hyatt, 139 S. Ct. 1485, 1496 (2019).

2025The “States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution,” PennEast Pipeline Company, LLC v. New Jersey, 141 S. Ct. 2244 , 2258 (2021) (citation omitted), and was retained as part of the country’s “original constitutional design.” Franchise Tax Bd. of Calif. v. Hyatt, 139 S. Ct. 1485, 1496 (2019).

2023See, e.g., King v. United States, 917 F.3d 409, 418 (6th Cir. 2019) (“Sovereign immunity is jurisdictional in nature.”).

2020See, e.g., King v. United States, 917 F.3d 409, 418 (6th Cir. 2019) (“Sovereign immunity is jurisdictional in nature.”).

2020Powers v. Office of 14 Child Support, 173 Vt. 390, 398 , 795 A.2d 1259, 1265 (2002).

2020Powers v. Office of 14 Child Support, 173 Vt. 390, 398 , 795 A.2d 1259, 1265 (2002).

2019See Stevens v. Stearns , 2003 VT 74 , ¶¶ 8-9, 175 Vt. 428 , 833 A.2d 835 (declining to address plaintiffs' inadequately briefed claim that state was not entitled to sovereign immunity from their suit seeking damages for state employees' violation of their Article 11 rights); Shields v. Gerhart , 163 Vt. 219 , 237, 658 A.2d 924 , 936 (1995) ("Because of our disposition of the merits of plaintiff's complaint [seeking damages under Articles 1 and 13 of the Vermont Constitution], we do not need to decide whether plaintiff's claims are also barred by the state's sovereign immunity.").

2019See Stevens v. Stearns , 2003 VT 74 , ¶¶ 8-9, 175 Vt. 428 , 833 A.2d 835 (declining to address plaintiffs' inadequately briefed claim that state was not entitled to sovereign immunity from their suit seeking damages for state employees' violation of their Article 11 rights); Shields v. Gerhart , 163 Vt. 219 , 237, 658 A.2d 924 , 936 (1995) ("Because of our disposition of the merits of plaintiff's complaint [seeking damages under Articles 1 and 13 of the Vermont Constitution], we do not need to decide whether plaintiff's claims are also barred by the state's sovereign immunity.").

2019Compare Corum , 413 S.E.2d at 291-92 (stating that common law theory of sovereign immunity must yield to constitutional rights and thus "cannot stand as a barrier to North Carolina citizens who seek to remedy violations of their [constitutional] rights"), with Figueroa v. State , 61 Haw. 369 , 604 P.2d 1198 , 1206 (1979) ("[I]n a suit against the state, there cannot be a right to money damages without a waiver of sovereign immunity and we regard as unsound the argument that all substantive rights of necessity create a waiver of sovereign immunity such that money damages are available."), and M

2019Compare Corum , 413 S.E.2d at 291-92 (stating that common law theory of sovereign immunity must yield to constitutional rights and thus "cannot stand as a barrier to North Carolina citizens who seek to remedy violations of their [constitutional] rights"), with Figueroa v. State , 61 Haw. 369 , 604 P.2d 1198 , 1206 (1979) ("[I]n a suit against the state, there cannot be a right to money damages without a waiver of sovereign immunity and we regard as unsound the argument that all substantive rights of necessity create a waiver of sovereign immunity such that money damages are available."), and M

2019Compare Corum, 413 S.E.2d at 291-92 (stating that common law theory of sovereign immunity must yield to constitutional rights and thus “cannot stand as a barrier to North Carolina citizens who seek to remedy violations of their [constitutional] rights”) with Figueroa v. State, 604 P.2d 1198, 1206 (Haw. 1979) (“[I]n a suit against the state, there cannot be a right to money damages without a waiver of sovereign immunity and we regard as unsound the argument that all substantive rights of necessity create a waiver of sovereign immunity such that money damages are available.”), and McKenna v. Jul

2019Compare Corum , 413 S.E.2d at 291-92 (stating that common law theory of sovereign immunity must yield to constitutional rights and thus "cannot stand as a barrier to North Carolina citizens who seek to remedy violations of their [constitutional] rights"), with Figueroa v. State , 61 Haw. 369 , 604 P.2d 1198 , 1206 (1979) ("[I]n a suit against the state, there cannot be a right to money damages without a waiver of sovereign immunity and we regard as unsound the argument that all substantive rights of necessity create a waiver of sovereign immunity such that money damages are available."), and M

2019See Stevens v. Stearns , 2003 VT 74 , ¶¶ 8-9, 175 Vt. 428 , 833 A.2d 835 (declining to address plaintiffs' inadequately briefed claim that state was not entitled to sovereign immunity from their suit seeking damages for state employees' violation of their Article 11 rights); Shields v. Gerhart , 163 Vt. 219 , 237, 658 A.2d 924 , 936 (1995) ("Because of our disposition of the merits of plaintiff's complaint [seeking damages under Articles 1 and 13 of the Vermont Constitution], we do not need to decide whether plaintiff's claims are also barred by the state's sovereign immunity.").

2019See Stevens v. Stearns , 2003 VT 74 , ¶¶ 8-9, 175 Vt. 428 , 833 A.2d 835 (declining to address plaintiffs' inadequately briefed claim that state was not entitled to sovereign immunity from their suit seeking damages for state employees' violation of their Article 11 rights); Shields v. Gerhart , 163 Vt. 219 , 237, 658 A.2d 924 , 936 (1995) ("Because of our disposition of the merits of plaintiff's complaint [seeking damages under Articles 1 and 13 of the Vermont Constitution], we do not need to decide whether plaintiff's claims are also barred by the state's sovereign immunity.").

2017Servs. , 160 Vt. 60 , 67, 625 A.2d 224 , 228 (1993) ("Sovereign immunity protects the state from suit unless immunity is expressly waived by statute.").

2017Servs. , 160 Vt. 60 , 67, 625 A.2d 224 , 228 (1993) ( "Sovereign immunity protects the state from suit unless immunity is expressly waived by statute." (emphasis added)). ¶ 15.

2024In 1993, the Court held that “[i]n the absence of the public duty doctrine or a statute specifically limiting liability, a municipal employee who commits a tortious act is personally liable to the injured person, even though the employee is engaged ina governmental function and the municipality is exempt under the doctrine of sovereign immunity,” Hudson, 161 Vt. at 178 ~ 79.

2024In 1993, the Court held that “[i]n the absence of the public duty doctrine or a statute specifically limiting liability, a municipal employee who commits a tortious act is personally liable to the injured person, even though the employee is engaged ina governmental function and the municipality is exempt under the doctrine of sovereign immunity,” Hudson, 161 Vt. at 178 ~ 79.

2019Both situations are actionable under the VTCA. 10 Almost forty years ago, in a case where the plaintiff made "no specific claims of unconstitutionality," this Court acknowledged "that many jurisdictions have abolished, and legal commentators have advocated abolition of, the doctrine of sovereign immunity where created by judicial decision." Lomberg v. Crowley , 138 Vt. 420 , 424, 415 A.2d 1324 , 1327 (1980).

2019Both situations are actionable under the VTCA. 10 Almost forty years ago, in a case where the plaintiff made "no specific claims of unconstitutionality," this Court acknowledged "that many jurisdictions have abolished, and legal commentators have advocated abolition of, the doctrine of sovereign immunity where created by judicial decision." Lomberg v. Crowley , 138 Vt. 420 , 424, 415 A.2d 1324 , 1327 (1980).

2025“Sovereign immunity protects the State and its components from liability for money damages unless immunity is waived by statute.” Wool v. Menard, 2018 VT 23, ¶ 8 .

2019See, e.g., Coleman v. Court of Appeals of Maryland, 566 U.S. 30, 35 (2012) )“[a] foundational premise of the federal system is that States, as sovereigns, are immune from suits for damages, save as they elect to waive that defense.”) (emphasis added); Wool v. Menard, 2018 VT 23, ¶ 8 (“Sovereign immunity protects the State and its components from liability for money damages unless immunity is waived by statute.”) (emphasis added); Am.

2025Sys. of Vt., 174 Vt. 404, 408 (2002), and must “be strictly construed, in terms of its scope, in favor of the sovereign.” Sossamon v. Texas, 563 U.S. 277, 285 (2011) (quoting Lane v. Pena, 518 U.S. 187, 192 (1996)); see also Depot Square Pizzeria, LLC v. Dep’t of Taxes, 2017 VT 29, ¶ 11 , 204 Vt. 536 , 542, 169 A.3d 204 (“[W]aivers of sovereign immunity must be express and we construe waivers narrowly.”).

2025Sys. of Vt., 174 Vt. 404, 408 (2002), and must “be strictly construed, in terms of its scope, in favor of the sovereign.” Sossamon v. Texas, 563 U.S. 277, 285 (2011) (quoting Lane v. Pena, 518 U.S. 187, 192 (1996)); see also Depot Square Pizzeria, LLC v. Dep’t of Taxes, 2017 VT 29, ¶ 11 , 204 Vt. 536 , 542, 169 A.3d 204 (“[W]aivers of sovereign immunity must be express and we construe waivers narrowly.”).

2025“The rationale for this is that municipalities perform governmental responsibilities for the general public as instrumentalities of the state; they conduct proprietary activities only for the benefit of the municipality and its residents.” Hillerby v. Town of Colchester, 167 Vt. 270, 272 , 706 A.2d 446, 447 (1997). ¶ 25. “[T]he rule as to liability from negligence arising from the construction, repair or other work performed by a municipality may be either ‘governmental’ or ‘proprietary,’ depending upon the use and purpose for which the labor is being performed.” Fuller v. City of Rutland, 122

2025“The rationale for this is that municipalities perform governmental responsibilities for the general public as instrumentalities of the state; they conduct proprietary activities only for the benefit of the municipality and its residents.” Hillerby v. Town of Colchester, 167 Vt. 270, 272 , 706 A.2d 446, 447 (1997). ¶ 25. “[T]he rule as to liability from negligence arising from the construction, repair or other work performed by a municipality may be either ‘governmental’ or ‘proprietary,’ depending upon the use and purpose for which the labor is being performed.” Fuller v. City of Rutland, 122

2019See Denis Bail Bonds , 159 Vt. at 484 -85 , 622 A.2d at 497 (" Absent due process violations , lawsuits against the state for acts essentially governmental in nature are barred unless the state waives its sovereign immunity and consents to be sued." (emphasis added) ); Williams v. State , 156 Vt. 42 , 55-56, 589 A.2d 840 , 848-49 (1990) (acknowledging that "due process may require that states entertain suits against them though they have not consented," but cautioning that common law sovereign immunity "is not vitiated entirely" as long as state "comports with due process principles"). ¶ 24.

2019See Denis Bail Bonds , 159 Vt. at 484 -85 , 622 A.2d at 497 (" Absent due process violations , lawsuits against the state for acts essentially governmental in nature are barred unless the state waives its sovereign immunity and consents to be sued." (emphasis added) ); Williams v. State , 156 Vt. 42 , 55-56, 589 A.2d 840 , 848-49 (1990) (acknowledging that "due process may require that states entertain suits against them though they have not consented," but cautioning that common law sovereign immunity "is not vitiated entirely" as long as state "comports with due process principles"). ¶ 24.