Godfrey & Kahn to Hold Annual Corporate Counsel Seminar November 1, 2012
Godfrey & Kahn will hold its 2012 Corporate Counsel
Symposium from 1:30 - 6:30 p.m. at Pier Wisconsin at Discovery
World (Pilot Room), 500 N Harbor Drive, Milwaukee, WI. This annual
symposium addresses current issues and challenges facing in-house
attorneys. The event is complimentary and has been approved by the
Wisconsin Board of Examiners for 3.0 CLE/EPR credits, including one
hour of Ethics credit. To register for more information, click here.
Ninth Circuit Holds Tribal Emergency Responders May Be Sued Individually for Acts Within Their Employment
In Maxwell v. County of San Diego, 2012 WL 4017462 (9th
Cir. 2012), Lowell Bruce shot and killed his wife, Kristin Maxwell.
Kristin's survivors sued multiple defendants including the
Viejas Band of Kumeyaay Indians (Tribe) Tribal Fire Department and
two paramedics, Avi and Felber, employed by the Tribe, alleging
gross negligence in their response to an emergency call. The Ninth
Circuit rejected the plaintiffs' argument that the Tribe
implicitly waived its sovereign immunity by responding to the
emergency call but allowed the suit to proceed against Avi and
Felber because the plaintiffs sought money damages from them
personally:
Tribal sovereign immunity derives from the same common law immunity
principles that shape state and federal sovereign immunity.
Normally, a suit like this one - brought against individual
officers in their individual capacities - does not implicate
sovereign immunity. The plaintiff seeks money damages not from the
state treasury, but from the officer[s] personally. Due to the
essential nature and effect of the relief sought, the sovereign is
not the real, substantial party in interest." (Citations and
quotations omitted.)
The court acknowledged that the result might be different where the
defendants sued individually are high tribal officials and
"the judgment sought would expend itself on the public
treasury or domain, or interfere with the public administration, or
if the effect of the judgment would be to restrain the sovereign
from acting, or to compel it to act." In denying that these
circumstances were present, the court noted that "this case
concerns allegedly grossly negligent acts committed outside tribal
land pursuant to an agreement with a non-tribal entity. In this
context, denying tribal sovereign immunity to individual employees
sued as individuals will have a minimal effect, if any, on the
tribe's hiring ability."
Many courts have held that tribal officers and employees are
covered by their tribe's sovereign immunity so long as they
have acted within the scope of their official duties. The Maxwell
decision draws a sharp distinction between the "scope of
official duties" doctrine and the "remedy sought"
doctrine. That a tribal official may have acted within the scope of
his or her duties may provide no protection if no relief is sought
from the tribe.
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