Yesterday a Texas appeals court dismissed a lawsuit brought against Texas Tech University and several of its officers by Mike Leach, the school’s former head football coach. Leach was fired last year after he was accused of mistreating a player. Leach’s lawsuit accused the university, its president, vice-chancellor, and athletic director of numerous injuries, including breach of contract and violation of due process.
The trial court dismissed all but the breach of contract claim, citing the State of Texas’ “sovereign immunity,” which encompasses Texas Tech. The appeals court invoked sovereign immunity for all claims, including breach of contract, and ordered the entire lawsuit dismissed. Brian Quinn, chief judge of the Texas 7th Court of Appeals, authored the court’s opinion, which delved into the history of “sovereign immunity”:
Given the nature of the issues at bar, it is helpful to delve into the history underlying the doctrine of sovereign immunity. The latter found its genesis in old England. Then, as most will admit, the king (or queen as the case may be) was omnipotent. No inherent authority belonged to those over whom he lorded. Rather, any rights or privileges they enjoyed were no greater than those the monarch deigned to bestow on them. Moreover, the judiciary that he created not only recognized this relationship between the king and his people but also deduced from it that since the former was sovereign over all, the latter could not be sue him without his approval. Thus, the tenet was of neither legislative nor executive origin. Instead, judges simply declared it to be law. [In a footnote, Quinn writes, "Dare we infer that this was an early example of judicial activism?"] With the discovery and population of the New World, our forefathers were called upon to establish their own system of government. Having rebelled against the tyranny of British rule, one would think that they would instill a government of limited powers. Indeed, the constitutional passage written above purports to encapsulate that sentiment. Nonetheless, not all things British were rejected for our own courts adopted much of the common law developed overseas. And, included in that body of law was the doctrine of sovereign immunity. So, though we have no king and despite the words of article 1, §2 of our Texas Constitution, the government (e.g., State, county, and municipalities) and those working for it in their official capacities came to enjoy that created to protect monarchs so many years ago. [Citations omitted]
Here, Quinn has a more lengthy, almost apologetic footnote:
Some may think it ironic that sovereign immunity remains viable given the wording of our Texas Constitution. Again, it mandates that “[a]ll political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit.” (emphasis added). Thus, true sovereignty lies in the people of Texas, not the government they created. That the true sovereign may be subjected to suit without consent while their creation cannot seems to diminish the meaning of art. I, §2 of the Constitution. [Citations omitted]
Quinn goes on to explain how, at least in Texas, sovereign immunity protects the state and its agents from suit and liability. In a case such as Coach Leach’s, even if he has clearly been the victim of a breach of contract, and the university is improperly withholding money he is guaranteed by contract, he is entitled to no judicial remedy, because the state cannot be made to answer in its own courts without its consent. Leach can only seek remedy through the legislature. Again, Quinn somewhat apologizes for this in a footnote:
That the State is not acting as a sovereign (but rather a private party) when withholding money due under a contract but nonetheless enjoys immunity from suit for withholding that money because it is deemed the sovereign is somewhat of a contradiction. No doubt there is a reasonable explanation for the apparent inconsistency, and the [Texas] Supreme Court is in the best position to explain it.
No doubt Coach Leach will ask the Supreme Court to do so.
UPDATE: The website Sports by Brooks notes that all three judges on the panel that decided this case, including Judge Quinn, were graduates of Texas Tech. Brooks argues that “it’s clear the conflicted court didn’t have the stomach to rule against its beloved Texas Tech.”
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Well, I’m glad the government doesn’t think too highly of itself here. I’d hate to see what it’s like when it drops the pretense of public service.
Strange, my previous comment didn’t seem to post. Oh well.
As a Texas Tech alumnus, I have followed this story closely, and was appalled at the events of last year. I withdrew my annual contribution to the athletics program, and even managed to get a voicemail left for the AD, Gerald Myers. He didn’t call me back (to be fair, I used quite a bit of uncomplimentary language).
I beg y’all’s patience since I know little of the law, but doesn’t this mean that a contract with a government–at least on the state or federal level–is worthless? (At least to the other party?)
Unless, I suppose, one has friends in the State Capitol, White House, etc.
Taking the contract means there’s a probability, however low, the terms will be respected. Not taking it means that chance is nil. Given no other options I’d take a 1% bet over a 0% one any day.
Either do that or get paid in advance.
Basically, if you’re a company, think twice about doing business with the government. If this precedence holds, that means the government can contract for products or services then refuse to pay as it is now immune to all liability.
Have you ever seen The Empire Strikes back?
Darth Vader: I am altering the deal. Pray I don’t alter it any further.
It’s like that.
http://www.imdb.com/title/tt0080684/quotes?qt0358500
Well, Gosh! your Honor, you shooor can kick that ol’ can!!!
Here, We are the sovereign!!
Oh well, at least it wasn’t as bad as this: http://www.lewrockwell.com/rothbard/rothbard233.html
This is another reason why when the government buys something, its costs a lot more than the market price. Every business owner who has dealt with the government knows that the government pays “when it feels like”, and this is reflected in the price.
Does Texas not have a statute which grants a general waiver of its sovereign immunity in cases? We have that here in Tennessee, and contracts with the state are fair game, with damages allowed up to the full value of the contract. I thought that was standard across the 50 states, but maybe not.
It’s possible it simply never came up – the fact that the judge is citing the doctrine rather than a specific (state)case is a pretty good indication that’s what’s going on.
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