Fed. Narcotics Agents (1971) 403 U.S. 388, 390-397, 91 S.Ct. 1999, 29 L.Ed.2d 619.)10

10PT&T maintains that by authorizing a direct court action in this case, we will inevitably undermine the elaborate administrative procedure established by the FEPA with respect to cases of public utility discrimination covered by the act. This contention has no merit. In view of our holding, post, that the FEPA does not encompass discrimination against homosexuals, we have no occasion directly to pass on the question of the procedure which properly governs a claim against a public utility that does fall within the aegis of the FEPA. We emphasize in this regard, however, that nothing in this opinion is intended to imply that an employee

Discussion Notes

1. What function could state constitutional provisions play in the legal system if they did not, in themselves, provide a cause of action for their enforcement?

2. Sovereign Immunity

Figueroa v. State

61 Hawaii 369, 604 P.2d 1198 (1979)

OGATA, Justice.

Plaintiffs-appellees, cross-appellants, Michael Figueroa, Louis Figueroa and Shirley Pimental (hereinafter appellees) instituted an action against the defendant-appellant, cross-appellee, State of Hawaii (hereinafter appellant) to recover damages for an attempted suicide by appellee Michael Figueroa while he was at the Hawaii Youth Correctional Facility, also known as the Koolau Boys' Home (hereinafter HYCF or Boy's Home). After a bench trial, the court below found that the State was negligent in its supervision of Michael, had violated certain of his guarantees under the State and Federal Constitutions and was liable for injuries prior to and subsequently caused by his attempted hanging. Both appellant and appellees appeal from the judgment of $1,385,250.00 entered in favor of appellees. We vacate the judgment and dismiss the cross-appeal; we further remand the first cause of action of the second amended complaint for a new trial.

III

Appellees also alleged in the second cause of action of the second amended complaint that while Michael was a resident at the Boys' Home, he suf

may pursue a claim from which a remedy is provided by the FEPA without exhausting the administrative remedies provided by that act.

As the dissenting opinion suggests, as a policy matter it may well be preferable for all employees who are the victims of illegal discrimination to be afforded an administrative remedy before the FEPC. As of yet, however, the Legislature has not granted the FEPC jurisdiction in cases arising out of non-FEPA, constitutionally proscribed discrimination. The absence of such an administrative remedy, however, provides no justification for the judiciary to fail to enforce individual rights under the state Constitution.

2. The United States Supreme Court recognized a cause of action against federal officials in the Bivens case, discussed in this and the next case. Are the issues the same at the state and federal levels?

fered deprivations of certain constitutional rights guaranteed by the State and Federal Constitutions. The trial court found that the following acts or omissions violated Michael's rights to due process, freedom from cruel and unusual punishment, and rehabilitative treatment:

1. Failure to provide for a hearing before subjecting him to the behavior modification program.

2. Placement in an isolation cell in the absence of "very exceptional circumstances."

3. Failure to provide adequate treatment and care reasonably calculated to bring about the reformation of a minor.

The trial court awarded Michael $15,000 for "pre-hanging physical pain and suffering and the mental anguish and emotional distress." The court explained that this award could be based on common law negligence or on constitutional violations so that the award could be upheld on negligence alone. However, in this case we are squarely faced with the question as to whether the State can be held liable in money damages for alleged constitutional violations.

The State argues that the court below erred in adjudicating the constitutional claims because the doctrine of sovereign immunity withheld from the court jurisdiction over the State on claims for money damages for alleged constitutional deprivations. We turn to the respective constitutional, statutory and decisional law arguments that are advanced as support for the action taken by the lower court.

It is well-established that the State as sovereign is immune from suit except as it consents to be sued. A.C. Chock, Ltd. v. Kaneshiro, 51 Hawaii 87, 451 P.2d

809 (1969); W.H. Greenwell, Ltd. v. Department of Land and Natural Resources, 50 Hawaii 207, 436 P.2d 527 (1968). The question of jurisdiction may be raised at any time. O'Daniel v. InterIsland Resorts, Ltd., 46 Hawaii 197, 377 P.2d 609 (1962); Meyer v. Territory, 36 Hawaii 75 (1942).

Appellees urge this court to find a private right of action in damages directly from the State Constitution for alleged violations of certain of Michael's constitutional rights. Appellees would have us extend the rationale of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), in which the United States Supreme Court held that a damage remedy could lie against federal officials who violate a plaintiff's constitutional rights so as to provide for liability for damages as against the State. This we cannot do. Just as the federal courts have refused to extend Bivens to provide for liability against a sovereign, we are not free to abolish the State's sovereign immunity and the State remains immune from a Bivens-type claim.

Further, Article XIV, Section 15 of the State

Discussion Notes

1. Should state constitutional sovereign immunity yield to claims for violation of state constitutional rights?

2. This case and the one that follows concern

Fenton v.

Groveland Community Services District 135 Cal.App.3d 797, 185 Cal.Rptr. 758 (Cal.App. 1982)

BIANCHI, Associate Justice.

Statement of the Case

This is an appeal from a judgment dismissing the action for failure to make a timely amendment to the complaint after the sustaining of a demurrer.

On November 8, 1977, appellants were not permitted to vote in Groveland Community Services District in the County of Tuolumne. By letter of November 7, 1977, County Clerk Carlo DeFerrari had informed the precinct election board that probable cause existed to believe that appellant Anne Fenton resided outside the election district. This letter was based on three affidavits filed pursuant to Elections Code section 14216. The affidavits of Elizabeth

Constitution which provides that all its provisions are "self-executing to the fullest extent that their respective natures permit" does not constitute a waiver of sovereign immunity for money damages for constitutional deprivations. Appellees argue that with respect to claims involving constitutional provisions, in this case, the rights under both Constitutions to due process and freedom from cruel and unusual punishment, the self-executing clause make available any and all accepted forms of redress including money damages. The argument does not persuade us. The self-executing clause only means that the rights therein established or recognized do not depend upon further legislative action in order to become operative....No case has construed the term "self-executing" as allowing money damages for constitutional violations. More importantly, in 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.

state constitutional provisions that are “self-executing." For further consideration of this issue, see Chapter 5, Section E.

3. Would the outcome in the Hawaii case be different if the sovereign immunity were statutory?

Scofield, Fay Hyde, and George Dickens each alleged that Anne Fenton did not reside within the Groveland Community Services District.

Appellants filed a complaint for damages against defendants Groveland Community Services District, the County of Tuolumne, Carlo DeFerrari, Elizabeth Scofield, George Dickens, and Faye Hyde. Appellants alleged they had been denied the right to vote on November 8, 1977 and alleged violations of their constitutional rights to due process and equal protection under the California Constitution. Appellants prayed for $300,000 in general damages, $300,000 in punitive damages, and attorney's fees.

Appellants' complaint alleged that the right to vote under state law was abridged by respondents. Respondent County of Tuolumne demurred on the ground that the complaint failed to state facts sufficient to constitute a cause of action. In their supporting points and authorities, the County specifically relied on the governmental immunities provided in Government Code sections 815, 818, and 820.2. In

sustaining the general demurrer, the trial court did not indicate which of these statutes was dispositive. Thus, each must be considered, since appellants' failure to amend their complaint after leave granted by the court requires appellants to prove that their complaint was not susceptible of a general demurrer on any ground raised below. (49 Cal.Jur.3d, Pleading, sec. 170, p. 591.)

Government Code section 815 provides that a public entity is not liable for the injuries it causes. However, as the Senate Committee Comment on section 815 makes clear, the public entity will be held liable in those instances where the Legislature has passed a statute assessing liability, or where the state or federal constitution requires liability. (See legis. committee com., West's Ann. Gov. Code (1980 ed.) sec. 815, p. 168.)

Initially, it should be noted that section 815, enacted as part of the California Torts Claims Act in 1963, typically serves as a bar to causes of action for damages for personal injuries. Here, appellants seek damages for a violation of their constitutional rights.

However, this is not to say that section 815 is inapplicable. Appellants are, by definition, seeking to state a cause of action in tort.

A tort requires that a plaintiff have a legally protected right which, when invaded by the defendant, is compensable by money damages. The civil remedy for constitutional torts is a direct claim by the victim of the official wrongdoing to secure compensation for the denial of his constitutional rights. (See Comment, Executive Immunity for Constitutional Torts After Butz v. Economu (1980) 20 Santa Clara L. Rev. 453, 455, fn. omitted.)

Thus, respondents were entitled to rely on section 815 in demurring to the complaint. However, the question remains as to whether appellants' cause of action falls within one of the exceptions to the governmental immunity granted by section 815.

As noted above, the Legislature has recognized that the state constitution may provide a cause of action independent from any statute providing for liability. (Legis. committee com., West's Ann. Gov. Code, supra, sec. 815, p. 168.) Appellants contend the right to vote guaranteed by article II, section 2 of the California Constitution provides a cause of action for damages against the County of Tuolumne. Appellant's position is well taken.

appellants' position. There, plaintiffs alleged violations of their state constitutional rights to free speech and free press. The trial court denied plaintiffs the right to seek damages, and the appellate court deemed this order to have the same legal effect as a general demurrer. (Id., at p. 822, 182 Cal.Rptr. 813.) The court went on to hold that because of the selfexecuting and important nature of the free speech and free press provision of the California Constitution, plaintiffs were entitled to maintain a cause of action for damages even though no statute granted such a cause of action. (Id., at pp. 851-853, 182 Cal.Rptr. 813.)

Laguna Publishing Co., while not addressing the question of governmental immunity, is persuasive authority for the proposition that section 815 does not bar appellants' state constitutional cause of action. First, the procedural posture in Laguna Publishing Co. is identical to that here. An order having the effect of a general demurrer was imposed as to a constitutional cause of action in both cases. Second, the right to vote would appear to be contained in a self-executing provision of the constitution as is the right to free speech and free press.4 A constitutional provision is presumed to be self-executing. (Flood v. Riggs (1978) 80 Cal.App.3d 138, 154, 145 Cal.Rptr. 573; Taylor v. Madigan (1975) 53 Cal.App.3d 943, 950, 126 Cal.Rptr. 376.) This presumption will be given effect unless it appears that legislation is required to implement the right granted. (Chesney v. Byram (1940) 15 Cal.2d 460, 462-463, 101 P.2d 1106.) The right to vote contained in article II, section 2, clearly does not require enabling legislation, and must therefore be deemed to be selfexecuting. (Ibid.)

Since the right to vote provision is self-executing, section 815 does not stand as a bar to appellants' cause of action. As was held in Laguna Publishing Co. v. Golden Rain Foundation, supra, 131 Cal.App.3d 816, 853, 182 Cal.Rptr. 813, "... the special dignity accorded the rights of free speech and free press..."afforded plaintiffs the right to seek damages without enabling legislation. The right to vote is no less worthy of protection. (See Otsuka v. Hite (1966) 64 Cal.2d 596, 601, 51 Cal.Rptr. 284, 414 P.2d 412, and cases cited therein establishing the fundamental importance of the right to vote.)

Regardless of the foregoing authorities, the law antedating the enactment of section 815 (passed in 1963) is consistent with the position that governmen

[T]he recently decided case of Laguna Publishing Co. v. Golden Rain Foundation (1982) 131 Cal.App.3d 816, 182 Cal.Rptr. 813, provides strong support for

"Article II, section 2, simply provides: “A United States citizen 18 years of age and resident in this state may vote." The old and differently worded right to vote provision (art. (II, sec. 1) was held to be self-executing in Arapajolu v. McMenamin (1952) 113 Cal.App.2d 824, 830, 249 P.2d 318.)

In this original proceeding the petitioners, Laura Kerns and the West Virginia Human Rights Commission, seek a writ of mandamus compelling the respondents, the President of West Virginia University and the West Virginia Board of Regents, to pay Ms. Kerns the damages that were awarded to her by the West Virginia Human Rights Commission as the result of the Commission's finding of employment discrimination by the respondents' agents against Ms. Kerns on the basis of her sex. The respondents assert that they are immune from liability for the employment discrimination damages by virtue of state constitutional governmental immunity. They argue that Ms. Kerns should seek to enforce the Commission's monetary award by seeking a recommendation of a moral obligation in the West Virginia Court of Claims and funding of the same by the legislature. We hold that state constitutional governmental immunity is superseded in this case by federal constitutional protection against employment discrimination. Accordingly, we grant the writ of mandamus.

II A.

W.Va. Const. art. VI, sec. 35 provides: "The State of West Virginia shall never be made defendant in any court of law or equity,..." In syllabus point 2 of Ables v. Mooney, 164 W.Va. 19, 264 S.E.2d 424 (1979), this Court recognized that this state constitutional provision protects the fiscal integrity of the State:

In certain instances a suit may be maintained against a State official in his individual capacity, notwithstanding the con- stitutional immunity provision found in Article VI, Section 35 of the West Virginia Constitution, where the relief sought involves a prospective declaration of the parties' rights. However, where the relief sought involves an attempt to obtain a retroactive monetary recovery against the official based on his prior acts and which recovery is payable from State funds, the constitutional immunity provision bars such relief.

That the primary purpose of this state constitutional provision is to prevent the diversion of state money from legislatively appropriated purposes to the payment of court awards is apparent also in syllabus point 2 of Pittsburgh Elevator Co. v. West Virginia Board of Regents, W.Va. 310 S.E.2d 675

(1983): "Suits which seek no recovery from state funds, but rather allege that recovery is sought under and up to the limits of the State's liability insurance coverage, fall outside the traditional constitutional bar to suits against the State."6

The immunity from suits provided to the State by the Constitution of West Virginia is to be distinguished from the common law doctrine of governmental immunity, which may be abrogated by the legislature or by this Court through its evolution of common law principles. Ables v. Mooney, 164 W.Va. 19, 25 n. 5, 264 S.E.2d 424, 428 n. 5 (1979). In Justice Miller's concurring opinion in Pittsburgh Elevator Co. v. West Virginia Board of Regents, W.Va 310 S.E. 2d 675,

691 (1983), it was observed that no court has judicially abolished sovereign immunity set by the state constitution.

B.

Nonetheless, the provisions of the Constitution of the United States also govern the people of this State, and such provisions, under the supremacy clause, override any contrary state constitutional or statutory law providing less protection or relief than provided by the Federal Constitution or federal statutes: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution of Laws of any State to the Contrary notwithstanding." U.S. Const., art. VI, cl. 2 ("the supremacy clause").

In addition to the overriding effect of the supremacy clause of the Constitution of the United States (art. VI, cl. 2) upon contrary state law, federal legislation which is expressly authorized by section 5 of the fourteenth amendment to the Constitution of the United States and which implements such amendment will by its own force override contrary state constitutional or statutory law, such as governmental immunity (W.Va. Const. art. VI, sec. 35), which state law provides less protection or relief than provided by the fourteenth amendment and its implementing legislation, such as the Equal Employment Opportunity Act of 1972. ...

C.

It is readily apparent that Fitzpatrick v. Bitzer and New York Gaslight Club, Inc. v. Carey permit affirmative relief, such as an award of back pay and reasonable attorney's fees, in civil actions in federal courts under the Equal Employment Opportunity Act of 1972, as amended, where such relief, under state law

Discussion Notes

1. Would the outcome in this case have been the same if the cause of action had been that

3. Attorneys Fees

Deras v. Myers 272 Or. 47, 535 P.2d 541 (1975)

O'CONNELL, Chief Justice.

Plaintiff seeks a declaratory judgment holding unconstitutional ORS 260.027 and ORS 260.154

(such as governmental immunity), is not obtainable in state administrative or judicial proceedings. We hold that affirmative relief, such as an award of back pay and reasonable attorney's fees, is recoverable against the State of West Virginia as an employer in employment discrimination cases adjudicated before the West Virginia Human Rights Commission or in the court system of this State, as well as being recoverable in actions or proceedings in federal forums, state constitution governmental immunity notwithstanding. In employment discrimination cases the federal law, which is paramount, is intended by the fourteenth amendment and Congress to "be vindicated at the state or local level." New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 66, 100 S.Ct. 2024, 2032, 64 L.Ed.2d 723, 735 (1980). Under the supremacy clause of the Constitution of the United States, the defense of state constitutional governmental immunity is not available in actions or proceedings under the West Virginia Human Rights Act because that statute is part of a joint state/federal scheme to enforce the fourteenth amendment to the Constitution of the United States, and the State would ultimately be liable in a federal forum under federal law. Cf. State v. Кора, W.Va. 311 S.E.2d 412, 418 (1983) (this Court deferred to the opinion of the United States Court of Appeals for the Fourth Circuit regarding the unconstitutionality of an alibi instruction because our "sustaining convictions in the state court [would lead to] predictable release through habeas corpus in the federal court."); see generally Wolcher, Sovereign Immunity and the Supremacy Clause: Damages Against States in Their Own Courts for Constitutional Violations, 69 Calif.L.Rev. 189 (1981) (state courts have the obligation under the supremacy clause to cast aside their state constitutional, common law or statutory governmental immunity in certain types of cases involving federal constitutional entitlements).

which was recognized in Gay Law Students Assoc. v. Pacific Tel. & Tel. Co., p. 161.

2. Does the doctrine of sovereign immunity belong in state constitutions?

which limit the amounts which may be expended in support of or in opposition to candidates for public office in Oregon. Plaintiff, a candidate for State Representative, who wished to expend funds on his behalf and to support and oppose the candidacies of others without regard to the limits imposed by the statutes and regulations, sought to have them declared invalid infringements upon his rights to free expression and equal protection of law guaranteed by the Oregon and federal constitutions. Defendant, as Secretary of State, is charged with the administration of the statutory scheme under attack.