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Zullo v. State

Supreme Court of Vermont

January 4, 2019

Gregory W. Zullo
State of Vermont

          On Appeal from Superior Court, Rutland Unit, Civil Division

          Lia Ernst and James Diaz, ACLU Foundation of Vermont, Montpelier, for Plaintiff-Appellant.

          Thomas J. Donovan, Jr., Attorney General, and Eve Jacobs-Carnahan and David R. Groff, Assistant Attorneys General, Montpelier, for Defendant-Appellee.

          Matthew Valerio, Defender General, and Rebecca Turner, Appellate Defender, Montpelier, for Amicus Curiae Office of the Defender General.

          Jeffrey T. Dickson of Dickson Law Office, PLLC, Burlington, Lindsay A. Lewis, New York, New York, and Dahlia Mignouna and Chad I. Golder of Munger, Tolles & Olson LLP, Washington D.C., for Amici Curiae National Association of Criminal Defense Lawyers, et al.

          David Tartter, Deputy State's Attorney, Montpelier, for Amicus Curiae Department of State's Attorneys and Sheriffs.

          PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

          EATON, J.

         ¶ 1. In this civil rights action against the State of Vermont, plaintiff seeks declaratory relief and money damages for alleged violations of Article 11 of the Vermont Constitution arising from the stop, seizure, and search of his vehicle. The civil division of the superior court granted summary judgment to the State, concluding that although damages may be obtained in an implied private right of action directly under Article 11, in this case neither the stop, the exit order, nor the seizure and search of plaintiff's vehicle violated Article 11's constraints against governmental searches and seizures.

         ¶ 2. At issue in this appeal is: (1) whether Article 11 provides a self-executing right of action for damages; (2) whether the Vermont Tort Claims Act (VTCA) governs any such action and, if not, whether the common law doctrine of sovereign immunity shields the State from liability; (3) if the action is neither governed by the VTCA nor barred by sovereign immunity, whether this Court should impose any limitations on obtaining damages against the State; and (4) assuming a damage remedy exists and plaintiff can potentially overcome any other barriers to obtaining damages against the State, whether the stop, exit order, and/or seizure and search of plaintiff's vehicle violated plaintiff's rights under Article 11, thereby entitling him to seek such relief.

         ¶ 3. We conclude that an implied private right of action for damages is available directly under Article 11, that the VTCA does not apply to plaintiff's suit alleging a constitutional tort, and that the common law doctrine of sovereign immunity does not bar such an action against the State, but that damages may be obtained only upon a showing that a law enforcement officer acting within the scope of the officer's duties either acted with malice or knew or should have known that those actions violated clearly established law. We further conclude that although the exit order would not have violated Article 11 had the initial stop been lawful, both the stop and the warrantless seizure and subsequent search of plaintiff's vehicle violated Article 11. In light of our resolution of the legal issues before us, we reverse the superior court's grant of summary judgment in favor of the State, as well as its dismissal of one of plaintiff's counts in an earlier decision, and we remand the matter for further proceedings consistent with this opinion. As explained below, the parties are not precluded from submitting renewed motions for summary judgment based on the law established in this opinion.

         I. Facts and Procedural History

         A. Facts

         ¶ 4. "Summary judgment is proper only where the material undisputed facts show that the moving party is entitled to judgment as a matter of law." Morisseau v. Hannaford Bros., 2016 VT 17, ¶ 12, 201 Vt. 313, 141 A.3d 745. Accordingly, "[t]he nonmoving party is entitled to all reasonable doubts and inferences" regarding those facts. Id. (quotation omitted). "In determining whether there is a genuine issue of material fact, we will accept as true the allegations made in opposition to the motion . . . so long as they are supported by affidavits or other evidentiary material." Id. (quotation omitted). With this standard in mind, we summarize the relevant facts as follows.[1]

         ¶ 5. On the afternoon of March 6, 2014, plaintiff, a twenty-one-year-old African- American[2] male, had just finished his work shift at his place of employment in the Town of Killington and was driving alone in the Town of Wallingford to see a friend. Lewis Hatch, a state trooper, was on duty in a marked state police vehicle. Trooper Hatch was in his vehicle at a Wallingford gas station when plaintiff drove by. The trooper pulled out of the station and followed plaintiff through Wallingford. He activated his vehicle's emergency blue lights and stopped plaintiff shortly after three o'clock in the afternoon.

         ¶ 6. Because the microphone in Trooper Hatch's shirt was either not working or not turned on, his interactions with plaintiff outside the range of the recording system in the trooper's vehicle were not recorded. Following the stop, Trooper Hatch approached the passenger-side window of plaintiff's car and asked plaintiff to provide his driver's license and registration. Plaintiff did so and explained to the trooper that he was coming from his work; plaintiff declined, however, to answer the trooper's questions as to where he was going. The trooper stated in his warrant application that he smelled a faint odor of burnt marijuana as he approached plaintiff's car, but during his interaction with plaintiff he did not deploy the drug-detection dog he had in his vehicle. Trooper Hatch observed an air freshener affixed to the center air vent in plaintiff's car and a small bottle of Visine in the car's center console. In response to the trooper's questioning, plaintiff told the trooper that he had smoked marijuana three days prior to the stop.[3] Any initial suspicion Trooper Hatch had that plaintiff was driving while impaired was quickly dispelled during the trooper's questioning of plaintiff.

         ¶ 7. Trooper Hatch ordered plaintiff to exit his car, but did not ask plaintiff to perform any field sobriety exercises. At some point after ordering plaintiff out of his car, in response to plaintiff's inquiry, the trooper told plaintiff for the first time that he had stopped him because there was snow partially obscuring the registration sticker affixed to his car's license plate. Plaintiff consented to Trooper Hatch's request that he submit to a search of his person, which did not reveal any evidence of contraband or a crime. Trooper Hatch then read plaintiff a consent card, advising him that if he did not agree to have his car searched, the car would be towed to the state police barracks while the trooper applied for a search warrant. Plaintiff refused to consent to a search of his car. Approximately twenty minutes after the initial stop, Trooper Hatch radioed for a tow truck.

         ¶ 8. Trooper Hatch declined to give plaintiff a ride to his home in Rutland, but he offered to drop plaintiff off at a nearby gas station or call someone to pick him up. Plaintiff declined these offers, and he wound up walking and hitchhiking to his home eight miles away. After arriving at the Rutland police barracks, Trooper Hatch applied for a search warrant, which was issued at approximately seven o'clock in the evening. At the barracks, a certified drug detection dog alerted twice on the trunk of plaintiff's vehicle. A search was completed at seven-thirty in the evening. The search turned up a metal grinder and a small pipe with residue later identified as marijuana, but no evidence of a criminal offense. Plaintiff's vehicle was not released to plaintiff until approximately ten o'clock in the evening after he paid the required $150 towing fee.

         B. Procedural History

         ¶ 9. In September 2014, plaintiff filed suit against the State, alleging four counts of violations of Article 11 of the Vermont Constitution: (1) an unlawful traffic stop without reasonable suspicion of any traffic violation; (2) an unlawful exit order without reasonable suspicion of danger or the commission of a crime; (3) an unlawful seizure of his car without probable cause; and (4) an unlawful search of his car without probable cause. He sought a declaration that Trooper Hatch's actions were illegal, an award of damages for the violations of his rights, and an award of costs.

         ¶ 10. In November 2014, the State filed a motion to dismiss counts two, three, and four, but not count one. In March 2015, the superior court denied the State's motion as to counts two and three, but it granted the motion as to count four concerning the alleged unlawful search. The court concluded that the alleged facts with respect to counts two and three concerning the exit order and seizure of plaintiff's car were sufficient to overcome the State's motion to dismiss. See Samis v. Samis, 2011 VT 21, ¶ 9, 189 Vt. 434, 22 A.3d 444 ("A motion to dismiss should be granted only when it is beyond doubt that there exist no facts or circumstances that would entitle the nonmoving party to relief.").

         ¶ 11. As for count four, the court stated that the key question was the meaning of Vermont's then-recent law decriminalizing the possession of less than one ounce of marijuana, see 18 V.S.A. § 4230a(a), 2013 No. 194 (Adj. Sess.), § 13 (effective June 17, 2014), insofar as plaintiff alleged that the search warrant was issued even though Trooper Hatch failed to cite any evidence suggesting that plaintiff's car contained more than one ounce of marijuana. In dismissing this count, the court relied mainly on the Legislature's pronouncement that marijuana is still contraband subject to seizure and forfeiture unless lawfully used for medicinal purposes and that the decriminalization of less than one ounce of marijuana is "not intended to affect the search and seizure laws afforded to duly authorized law enforcement officers." Id. § 4230a(c)(2). Moreover, the court concluded that the warrant application was not defective merely because it referenced evidence of a criminal offense rather than evidence of contraband. Following its dismissal of count four, the court granted plaintiff's motion to add a fifth count alleging that the search of his car was unlawful because Trooper Hatch dishonestly stated in his warrant application that he expected to find evidence of a crime.

         ¶ 12. After the parties completed discovery that included taking the depositions of plaintiff and Trooper Hatch, they filed cross-motions for summary judgment. The State asserted that summary judgment should be entered on count one because the stop was lawful and because the trooper's actions were protected by qualified immunity. With respect to counts two, three, and five, the State argued that the totality of the circumstances justified the exit order and the seizure and search of plaintiff's vehicle. The State also argued that even if Trooper Hatch erred in assessing whether reasonable suspicion or probable cause existed to support the exit order and seizure of plaintiff's vehicle, either qualified immunity or sovereign immunity barred plaintiff's action. Plaintiff responded that the State waived its sovereign immunity, either through the VTCA or Article 11 itself, and that Trooper's Hatch's qualified immunity did not extend to the State. Plaintiff further argued that none of the statutes or caselaw relied upon by the State provided legal justification for Trooper Hatch to stop plaintiff, order him to exit his vehicle, or seize and search his vehicle.

         ¶ 13. In May 2017, the superior court granted the State's motion for summary judgment and denied plaintiff's cross-motion for summary judgment. The court concluded that: (1) the VTCA is inapplicable because it concerns only common law torts and because no private analogs exist for Trooper Hatch's actions; (2) Article 11 provides an implied private right of action for damages against the State; and (3) money damages are an appropriate remedy if liability is found because there is no viable alternative remedy. The court granted the State's motion for summary judgment, however, based on its determination that Trooper Hatch's actions did not violate Article 11. The court concluded that: (1) any mistake of law by Trooper Hatch in stopping plaintiff based on a partially obscured registration sticker was objectively reasonable and thus did not rise to an actionable violation of Article 11; (2) the faint smell of burnt marijuana, in combination with the presence of the air freshener and bottle of Visine, provided Trooper Hatch with reasonable suspicion to order plaintiff to exit his car; and (3) even though the air freshener and Visine lost their probative value after Trooper Hatch's concerns about plaintiff's possible impaired driving were dispelled, the faint smell of burnt marijuana alone provided probable cause to seize plaintiff's car and obtain a warrant to search the car-notwithstanding the fact that possession of less than one ounce of marijuana was only a civil infraction at the time of the stop.

         ¶ 14. Plaintiff appeals, arguing that: (1) in assessing whether the stop in this case violated Article 11, which offers more protection than the Fourth Amendment, this Court should not follow the U.S. Supreme Court's recent holding that reasonable suspicion to support a traffic or investigatory stop may rest upon a police officer's reasonable mistake of law, see Heien v. N. Carolina, ___ U.S. ___, 135 S.Ct. 530 (2014); (2) even if this Court were to adopt a Heien-type analysis, the stop in this instance violated Article 11 because it was not objectively reasonable for Trooper Hatch to believe that plaintiff had violated a statute requiring number plates to be kept unobscured with legible letters and numbers; (3) Trooper Hatch ordered plaintiff to exit his car without reasonable suspicion of criminal activity or any other legal justification, in violation of Article 11; and (4) there was no probable cause to seize or search plaintiff's car.[4] The Office of the Defender General raises similar arguments in its amicus curiae brief filed in support of plaintiff's appeal. In another amicus curiae brief filed in support of plaintiff's appeal, the National Association of Criminal Defense Lawyers (NACDL) and other organizations[5] argue that adopting the holding in Heien would undercut the protections guaranteed by Article 11, as evidenced by studies indicating that, as the result of implicit racial bias, law enforcement officers are more likely to mistake the actions of nonwhite individuals as violations of the law.

         The State responds that: (1) the superior court was correct in holding that the VTCA does not grant jurisdiction for plaintiff's claims; (2) Article 11 does not provide jurisdiction for a private right of action against the State because the State is protected by its sovereign immunity and because alternative remedies exist;[6] (3) Trooper Hatch's stop of plaintiff's car did not violate Article 11 because it was objectively reasonable for him to believe that plaintiff was in violation of a motor vehicle law; and (4) notwithstanding the then-existing marijuana decriminalization law, reasonable suspicion supported the exit order and probable cause supported the seizure and search of plaintiff's car. In its amicus curiae brief, the Department of State's Attorneys and Sheriffs argues that this Court should follow Heien and hold that traffic stops based on an officer's objectively reasonable mistake of law satisfy the reasonable suspicion standard and thus do not violate Article 11.

         II. The Vermont Tort Claims Act and Sovereign Immunity

         ¶ 15. We first address the State's argument that no private right of action may be implied directly under Article 11 because the State has not waived its sovereign immunity to any such action either under the VTCA or any other legislation. According to the State, Vermont courts lack jurisdiction over plaintiff's lawsuit, notwithstanding his claims of constitutional violations, because plaintiff has failed to identify a statutory waiver of sovereign immunity, which the State contends is necessary before he can sue the State for damages.[7] The State concurs with the superior court's assessment that plaintiff's constitutional tort claim does not fit within the VTCA's waiver provisions, arguing that the Act applies only to ordinary common law torts and that there are no private analogs for Trooper Hatch's actions within the scope of his duties. The State argues, however, that, absent any other legislation explicitly waiving sovereign immunity for constitutional torts, plaintiff's suit against the State is barred for lack of jurisdiction.

         ¶ 16. Plaintiff responds that an explicit legislative waiver of sovereign immunity is not required to obtain a damages remedy under a self-executing constitutional provision for a violation of one's constitutional rights under that provision. Plaintiff agrees with the State and the superior court that his constitutional tort claim should not proceed through the VTCA because the Act does not apply to constitutional claims. He also argues, however, that even if the Act applied to his constitutional claims, it would not bar those claims because common law torts such as unlawful trespass and false imprisonment provide private analogs for his claims and because the discretionary function exception in the Act does not apply to unconstitutional or unlawful conduct.

         A. The Vermont Tort Claims Act

         ¶ 17. As noted, the superior court agreed with the State that the VTCA does not govern plaintiff's lawsuit for two interrelated reasons: the Act applies only to ordinary common law torts and only where there is a private analog-in other words, where the cause of action is comparable to one available against a private citizen. The court rejected plaintiff's arguments that his lawsuit was analogous to actions against private individuals for trespass to chattel, false imprisonment, and invasion of privacy. The court concluded that because the ultimate question-whether Trooper Hatch acted in conformance with plaintiff's constitutional rights-turned on purely governmental functions, his lawsuit could not be treated as analogous to a common law claim against a private party.

         ¶ 18. "[T]he primary purpose of the VTCA is to waive sovereign immunity for recognized causes of action, particularly for common law torts." See Kennery v. State, 2011 VT 121, ¶ 26, 191 Vt. 44, 38 A.3d 35. First enacted in 1961, the VTCA generally makes the State liable for injuries, with delineated exceptions, resulting from the negligent or wrongful acts or omissions of state employees acting within the scope of their employment "under the same circumstances, in the same manner, and to the same extent as a private person would be liable." 12 V.S.A. § 5601. The statute does not explicitly address constitutional torts. Cf. J. Friesen, State Constitutional Law: Litigating Rights, Claims, and Defenses § 8.04[4], at 24 (4th ed. 2006) (citing state statutes explicitly recognizing compensation for deprivation of constitutional rights); G. Gildin, Redressing Deprivations of Rights Secured by State Constitutions Outside the Shadow of the Supreme Court's Constitutional Remedies Jurisprudence, 115 Penn St. L. Rev. 877, 883-85 (2011) (citing state legislatures that have enacted statutory civil damages action for invasion of state constitutional rights, and noting that some statutes encompass all state constitutional rights while others create causes of action only for specifically enumerated rights or for situations in which public official acts with heightened level of culpability).

         ¶ 19. The VTCA's private-analog waiver, which is similar to that contained in the Federal Tort Claims Act (FTCA), [8] "is primarily directed at the 'ordinary common-law torts.'" Denis Bail Bonds, Inc. v. State, 159 Vt. 481, 485, 622 A.2d 495, 498 (1993). "By maintaining a link to private causes of action, this approach serves to prevent the government's waiver of sovereign immunity from encompassing purely 'governmental' functions." Id. at 485-86, 622 A.2d at 498. Nevertheless, "[t]he purpose of the private-analog provision is not to bar, without exception, suits claiming injuries based on the breach of duties performed by government employees performing government services, but rather to place constraints on how creative courts can be in finding duties where none had previously existed." Sabia v. State, 164 Vt. 293, 302, 669 A.2d 1187, 1193 (1995). Under the private-analog waiver, the State may be liable if the plaintiff's cause of action is comparable to an action maintainable against a private citizen such that the allegations satisfy the necessary elements of the comparable action. Denis Bail Bonds, 159 Vt. at 486, 622 A.2d at 498.[9]

         ¶ 20. Although plaintiff cites false imprisonment and trespass to chattels as private-analog torts, he does not demonstrate that his "factual allegations satisfy the necessary elements of a recognized cause of action." Kane v. Lamothe, 2007 VT 91, ¶ 7, 182 Vt. 241, 936 A.2d 1303; cf. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 392 (1971) (rejecting "the notion that the Fourth Amendment proscribes only such conduct as would, if engaged in by private persons, be condemned by state law"). Nor does he effectively counter the superior court's point, with which we agree, that the ultimate question of whether Trooper Hatch acted in compliance with plaintiff's constitutional rights turns on law enforcement responsibilities that have no private analog. See Dorwart v. Caraway, 2002 MT 240, ¶ 44, 58 P.3d 128 (agreeing with "authorities that there is a great distinction between wrongs committed by one private individual against another and wrongs committed under authority of the state").

         ¶ 21. Indeed, the limited federal case law under the FTCA suggests that no private analog exists here. Cf. Casillas v. United States, No. CV 07-395-TUC-DCB (HCE), 2009 WL 735193, at *11 (D. Ariz. Feb.11, 2009) ("It follows that just as there is no private analog to the act of applying for a search warrant, there is also no private analog to the investigation leading to the decision to seek the warrant."). Given the VTCA's silence as to constitutional torts and the absence of any comparable private analog, we conclude that the Act's statutory waiver of sovereign immunity against certain civil tort claims does not apply here.

         B. Sovereign Immunity

         ¶ 22. Having determined that the VTCA does not govern plaintiff's lawsuit, we consider the State's argument that Vermont courts lack jurisdiction over constitutional tort claims absent an express statutory waiver of sovereign immunity. Whether the common law doctrine of sovereign immunity stands as a bar to constitutional torts absent an explicit legislative waiver is a difficult question with which few courts have grappled. See Shields v. Gerhart, 155 Vt. 141, 152, 582 A.2d 153, 160 (1990) ("[T]he question of whether sovereign immunity should be a defense to [constitutionally based tort claims for damages] is itself complex."); J. Friesen, supra, § 8.02[2], at 9 ("Where constitutionally based damage suits are allowed, the sparse caselaw is divided on whether they are completely subject to the state rules that affect other claims against governmental bodies and their employees, or are exempt from some of them.").

         ¶ 23. Although it has a long history, the ancient English common law doctrine that "the King can do no wrong" is not inviolate. See Levinsky v. Diamond, 151 Vt. 178, 183, 559 A.2d 1073, 1077 (1989) (noting that sovereign immunity is "derived from the concept that 'the King can do no wrong' "), overruled on other grounds by Muzzy v. State, 155 Vt. 279, 281, 583 A.2d 82, 83 (1990); J. Friesen, supra, § 8.03[2], at 12 ("Over the last thirty or forty years, the doctrine of sovereign immunity has come under attack in the state courts, where in state after state which had maintained sovereign immunity or municipal immunity as a matter of common law, the doctrines have been judicially abolished or limited.").[10] Indeed, this Court long ago recognized that due process violations are an exception to the general principle applying sovereign immunity absent an explicit legislative waiver. See 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. On multiple occasions, this Court has declined to address whether the doctrine of sovereign immunity bars constitutional torts against the State absent an explicit legislative waiver. See 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."). Although we did not address in Shields whether the common law doctrine of sovereign immunity was an absolute bar to damage claims against the State based on alleged constitutional violations, we emphasized "the preeminence of the Vermont Constitution in our governmental scheme." Shields, 163 Vt. at 223, 658 A.2d at 927. Noting the truism that a constitution is "the expression of the will of the people" and thus "stands above legislative or judge-made law," we stated that "the absence of legislative enabling statutes cannot be construed to nullify rights provided by the constitution if those rights are sufficiently specified." Id.

         ¶ 25. In a more recent case in which we upheld the liability of a municipality sued for damages directly under the Common Benefits Clause of the Vermont Constitution, we reiterated the preeminence of the Vermont Constitution over legislative and judge-made law. See In re Town Highway No. 20, 2012 VT 17, ¶ 26, 191 Vt. 231, 45 A.3d 54 (stating that Vermont Constitution, which "is preeminent in our governmental scheme" as "the fundamental charter of our state" and expression of people's will, "confers upon the government limited powers while simultaneously protecting the basic freedoms of the governed"). Although the municipality in that case "invoke[d] the doctrine of municipal immunity to completely absolve itself from liability, we discern[ed] no logic or policy purpose in recognizing a constitutional tort derived from our fundamental charter of rights while simultaneously granting the Town immunity because it was performing a 'governmental' function." Id. ¶ 58. In support of this statement, we quoted the North Carolina Supreme Court, which provided the following explanation for why it was rejecting the notion that the common law doctrine of sovereign immunity barred damage claims brought directly under the state constitution:

It would indeed be a fanciful gesture to say on the one hand that citizens have constitutional individual civil rights that are protected from encroachment actions by the State, while on the other hand saying that individuals whose constitutional rights have been violated by the State cannot sue because of the doctrine of sovereign immunity.

Corum v. Univ. of N.C. , 413 S.E.2d 276, 291 ( N.C. 1992); see Shields, 163 Vt. at 223, 658 A.2d at 928 ("To deprive individuals of a means by which to vindicate their constitutional rights would negate the will of the people ratifying the constitution, and neither this Court nor the Legislature has the power to do so.").

         ¶ 26. The few state courts that have addressed this issue are divided over whether sovereign immunity serves as an absolute bar to constitutional torts absent an explicit legislative waiver. See T. Hunter Jefferson, Constitutional Wrongs and Common Law Principles: The Case for the Recognition of State Constitutional Tort Actions Against State Governments, 50 Vand. L. Rev. 1525, 1541-43 (1997) (citing state courts that have accepted or rejected doctrine of sovereign immunity as bar to constitutional torts, either based on tort claims act or incompatibility of doctrine with constitutional violations). Compare 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. Julian, 763 N.W.2d 384, 390 (Neb. 2009) (stating that "existence of a self-executing constitutional right does not entail ...

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