At the height of the Atlantic hurricane season, some Central Floridians are still reeling from storms of the not-so-distant past. And some are seeking accountability, from private entities or government regulators whose actions — or inactions — allegedly made circumstances worse.
In Volusia County alone, Morgan & Morgan is investigating at least four separate cases of alleged failures to responsibly manage water, including stormwater as well as water quality. Those cases are in various stages of litigation, naming government regulators and other private entities as responsible parties.
One case, an ongoing lawsuit alleging stormwater mismanagement in west Volusia County, is the focus of a months-long investigation by Central Florida Public Media, published Wednesday. That lawsuit, brought by nearly two dozen residents, argues “artificial drainage alternations” and unlawful discharges of stormwater into so-called “Miller Lake” have led to “unabated” and “chronic” flooding of private property.
Private entities are responsible for the supposedly “unlawful” drainage system and stormwater discharges. But the system and stormwater discharges themselves were permitted by the St. Johns River Water Management District — which isn’t named as a defendant in the lawsuit. Why not?
Sovereign immunity: ‘the king can do no wrong’
Keith Rizzardi is a law professor at Nova Southeastern University’s Shepard Broad College of Law in south Florida, with years of experience practicing environmental and administrative law. He formerly worked for the Department of Justice, and also spent over a decade with the South Florida Water Management District.
Rizzardi isn’t involved in any of the Volusia County lawsuits mentioned above. But he does know a whole lot about sovereign immunity — what he calls “a really old concept in governance” — and sat down to unpack some of it with Central Florida Public Media.
“It kind of goes back to English common law, and ‘the king can do no wrong,’” Rizzardi said. “The sovereign is immune. You can't sue the government.”
The roots of sovereign immunity can be traced back at least as far as the 1600s, to political philosophers Thomas Hobbes and John Locke. Locke, who was very influential to the U.S. founding fathers, leaned toward democracy, Rizzardi said: “Yes, we enter into this contract for the government to help us. But the government's power is conditional.”
On the flip side, Hobbes had a very different view of the government’s role, Rizzardi said: “People are brutes. Nature is cruel. … And that's why we need government. And we hand over some of our liberty to the sovereign, and the sovereign protects us. And our job is: obey.”
Sovereign immunity, then, leans towards the Hobbes philosophy: “The king can't be questioned … The government has the power, and we gave the government that power.”
Today, in many places — including Florida — sovereign immunity substantially limits people’s ability to sue the government. While doing so is not completely impossible, sovereign immunity makes it very difficult, Rizzardi said: “The premise is: sovereign immunity is the rule, not the exception.”
Section 373.443 of the Florida Statutes provides what Rizzardi calls “a pretty sweeping grant of sovereign immunity” for water management districts.
“This Florida statute says that the water management districts are immune from liability for damages when they approve a permit, when they issue an order, when they engage in control or regulation, and when they act during emergencies,” Rizzardi said.
That makes it next to impossible to seek monetary damages from the state. Another possibility is injunctive relief, which isn’t about money but rather getting something to happen (or stop happening). But even those are “very difficult cases to bring into the courts,” Rizzardi said.
“Courts are going to look for reasons where they don't have to have review: remember, separation of powers,” Rizzardi said. “So once that permit's issued, it's hard to challenge it. … Courts are instinctively going to say: ‘No, sovereign immunity applies, unless it's been waived.’”
Shrinking the scope
Sovereign immunity is the default. But the Florida Constitution does allow lawmakers the option to waive, or limit, its scope.
Citing the state constitution, Section 768.28 of the Florida Statutes provides what Rizzardi calls a “partial waiver” of sovereign immunity. It allows for governmental entities to be held liable for damages, only up to a certain amount: $200,000 per person, or $300,000 per incident.
Earlier this year, both chambers of the state legislature approved a bill that would have raised those maximum amounts for the first time in over a decade, according to the Florida Bar. The bill would have upped those caps to $350,000 per person and $500,000 per incident. But Governor Ron DeSantis vetoed it, citing concerns that it would encourage meritless lawsuits.
It’s a tricky balance to strike. Without any degree of sovereign immunity in place at all, Rizzardi said, things could quickly get out of hand — and expensive for taxpayers. “You don't want people suing the government for every decision the government makes.”
It all comes down to the question of when and how often the courthouse doors should be left open to the people, Rizzardi said. If people feel like those doors are being slammed shut, there are ways to adjust the framework: not overnight, but over time; by voting, speaking up and participating in the system.
“We're responsible for electing these officials who have established this role of sovereign immunity, and who allow for this degree of sovereign immunity,” Rizzardi said. “And if we don't like it, we should be voting for different people.”
