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Bench Book - 5.3.2 State Sovereign Immunity

State sovereign immunity is, as noted above, the doctrine that prevents a state from being sued in its own courts without its consent. It will generally be a matter of state law, and of course not every state is the same. Many states have narrowed or waived their sovereign immunity to some degree through the purchase of liability insurance or by the enactment of a state tort claims act, which allows certain suits against the state and its officers in certain circumstances.

An application of state sovereign immunity in a case arising under the Compact can be seen in Hodgson v. Mississippi Department of Corrections. 963 F. Supp. 776 (E.D. Wis. 1997). As discussed in section, Hodgson involved a woman who was murdered in Wisconsin by a Mississippi parolee being supervised there under the Compact. The victim’s father sued various Mississippi officials in tort for wrongful death.

As state officials acting in their official capacities, the Mississippi officials were deemed immune from suit. Under the applicable Mississippi law—as applied by the federal court in Wisconsin, where the suit was filed—state officials are immune from tort suits for their “discretionary” acts (those requiring personal deliberation, decision, and judgment) but not for their “ministerial” acts (those duties positively imposed by law and required in specified circumstances). The court concluded that the officials’ acts under the Uniform Act for Out-of-State Parolee Supervision were discretionary, and thus found them to be immune from suit on the plaintiff’s wrongful death claim. Id. at 789. (The father’s claim against the Mississippi Department of Corrections and its officers in their official capacities was also deemed barred in federal court under the Eleventh Amendment.)

The distinction between discretionary and ministerial (some states use different terms, such as “operational”) acts is not unique to Mississippi, and it could have a bearing on the sovereign immunity analysis under many states’ tort laws. In those states, an official doing work related to the Compact would be likely to have stronger immunity protection when carrying out discretionary functions under the Compact, such as discretionary transfers under ICAOS Rule 3.101-2 or the imposition of conditions under Rule 4.103, than he or she would carrying out functions susceptible to being interpreted as ministerial/operational, such as a sending state’s failure to issue a warrant within fifteen (15) days of an offender’s failure to appear as required by ICAOS Rule 2.110.



Click terms below to reveal definitions used in this rule.

Supervision – means the oversight exercised by authorities of a sending or receiving state over an offender for a period of time determined by a court or releasing authority, during which time the offender is required to report to or be monitored by supervising authorities, and to comply with regulations and conditions, other than monetary conditions, imposed on the offender at the time of the offender’s release to the community or during the period of supervision in the community.