In 1855 Congress established the U.S.COURT OF CLAIMS, a special court created to hear cases against the United States involving contracts based upon the Constitution, federal statutes, a
Trang 1enforcement agencies as well as the media and the general public SPLC staff members conduct training sessions regarding these groups for law enforcement agencies, schools, and community groups SPLC also offers online hate-crime training on its Web site in conjunction with the Federal Law Enforcement Training Center and Auburn University Montgomery
In addition to being the subject of continu-ous vitriolic attacks by extremist organizations, whose activity it monitors, the SPLC was the subject of strong criticism by Washington, D.C.-based writer Ken Silverstein Writing in the November 2000 issue of Harper’s Magazine, Silverstein accused SPLC of raising millions of dollars from fund-raising and investments but spending only a portion of the money raised on its civil rights programs
The SPLC has been the subject of violent threats during the 2000s In 2006 it brought suit against the Imperial Klans of America (the second largest KKK group in the United States) after two members of the Klan beat a 16-year-old boy of Panamanian descent After SPLC filed the suit, Klan members threatened to bomb the SPLC building SPLC said it would step up its security efforts In 2008 the center won the case in a Kentucky trial court
The SPLC promotes its “Teach Tolerance”
campaign throughout the United States
FURTHER READINGS Jacobs, James, and Kimberly Potter 2000 Hate Crimes:
Criminal Law & Identity Politics New York: Oxford Univ Press.
Johnson, Sandra E 2002 Standing on Holy Ground: A Triumph over Hate Crime in the Deep South New York:
St Martin ’s Press.
Ridgeway, James 1995 Blood in the Face: The Ku Klux Klan, Aryan Nations, Nazi Skinheads, and the Rise of a New White Culture 2d ed New York: Thundermouth.
Southern Poverty Law Center Available online at http://
www.splcenter.org (accessed June 3, 2009).
CROSS REFERENCES Civil Rights; Civil Rights Acts; Discrimination; Ku Klux Klan.
SOVEREIGN IMMUNITY The legal protection that prevents a sovereign state
or person from being sued without consent
Sovereign immunity is a judicial doctrine that prevents the government or its political subdivisions, departments, and agencies from being sued without its consent The doctrine
stems from the ancient English principle that the monarch can do no wrong
Suits against the United States
In early American history, the courts supported the traditional view that the United States could not be sued without congressional authorization (Chisholm v Georgia, 2 U.S [2 Dall.] 419, 478, 1
L Ed 440 [1793]; Cohens v Virginia, 19 U.S [6 Wheat.] 264, 412, 5 L Ed 257 [1821]) This
IMMUNITYapplied to suits filed by states as well as individuals (Kansas v United States, 204 U.S
331, 27 S Ct 388, 51 L Ed 510[1906]) Thus, for many years, those who had contract and tort claims against the government had no legal recourse except through the difficult, inconve-nient, and often tardy means of convincing Congress to pass a special bill awarding compen-sation to the injured party on a case by case basis The federal government first began to waive its sovereign immunity in areas of law other than torts In 1855 Congress established the U.S.COURT OF CLAIMS, a special court created to hear cases against the United States involving contracts based upon the Constitution, federal statutes, and federal regulations In 1887 Con-gress passed theTUCKER ACT(28 U.S.C.A §§ 1346 (a) (2), 1491) to authorize federal district courts
to hear contractual claims not exceeding $10,000 against the United States Other SPECIAL COURTS
were later created for particular types of nontort claims against the federal government The U.S Board of General Appraisers was created in 1890 and was replaced in 1926 by the U.S Customs Court The U.S Court of Customs Appeals was created in 1909 and then replaced in 1926 by the U.S Court of Customs and Patent Appeals These courts handled complaints about duties levied on imports The Board of Tax Appeals, created in 1924 to handle internal revenue complaints, was replaced in 1942 by the TAX COURTof the United States
Not until 1946 did Congress address the issue of liability for torts committed by the government’s agencies, officers, or employees Until 1946 civil servants could be individually liable for torts, but they were protected by sovereign immunity from liability for tortious acts committed while carrying out their official duties However, the courts were not always consistent in making that distinction
In 1946 Congress passed the Tort Claims Act (28 U.S.C.A §§ 1346[b], 2671–2678), which
Trang 2authorized U.S district courts to hold the United
States liable for torts committed by its agencies,
officers, and employees just as the courts would
hold individual defendants liable under similar
circumstances This general waiver of immunity
had a number of exceptions, including the torts
of BATTERY, FALSE IMPRISONMENT, FALSE ARREST,
MALICIOUS PROSECUTION, ABUSE OF PROCESS, libel,
slander, MISREPRESENTATION, deceit, interference
with contractual rights, tort in the fiscal
opera-tions of the Treasury, tort in the regulation of the
monetary system, and tort in combatant
activi-ties of the armed forces in wartime
By 1953 the U.S.SUPREME COURThad drawn
distinctions under the Tort Claims Act between
tortious acts committed by the government at
the planning or policy-making stage and those
committed at the operational level In Dalehite
v United States, 346 U.S 15, 73 S Ct 956, 97
L Ed 1427 (1953), the Supreme Court held that
the Tort Claims Act did not waive sovereign
immunity as to tortious acts committed at the
planning stage; immunity applied only to torts
committed at the operational stage
Congress also waived sovereign immunity
in cases seeking injunctive or other
nonmone-tary relief against the United States in a 1976
amendment to the Administrative Procedure
Act (5 U.S.C.A §§ 702–703)
Suits Against the States
The doctrine of sovereign immunity applies to
state governments within their own states, but
it was not initially clear whether states had
immunity to suits involving other states or
citizens of other states In the 1793 case of
Chisholm v Georgia, the U.S Supreme Court
permitted a North Carolina citizen to sue Georgia
for property that Georgia had seized during the
American Revolution The states’ strong
disap-proval of the court’s decision in Chisholm led to
the prompt adoption of the ELEVENTH
AMEND-MENT to the U.S Constitution in 1795 The
Eleventh Amendment specifically grants
immu-nity to the states as to lawsuits by citizens of
other states, foreign countries, or citizens of
foreign countries in the federal courts This
limitation was judicially extended to include suits
by a state’s own citizens in Hans v Louisiana, 134
U.S 1, 10 S Ct 504, 33 L Ed 842 (1890)
The U.S Supreme Court still has
jurisdic-tion to hear suits by one state against another
In addition, the courts have construed the
Eleventh Amendment as permitting APPELLATE
proceedings in cases originally instituted by a state if theDEFENDANT asserted rights under the U.S Constitution, statutes, or treaties (Cohens v
Virginia), or in cases against state officials alleged
to have violated such rights (Osborn v Bank of the United States, 22 U.S [9 Wheat.] 738, 6
L Ed 204 [1824]) The latter category has resulted in extensive litigation in federal courts against state and local officers alleged to have violated theCIVIL RIGHTSAct of 1871 (42 U.S.C.A
§ 1983) Claims brought under the act are not subject to sovereign immunity
The FOURTEENTH AMENDMENT does allow Congress to abrogate state sovereign immunity
Section 5 grants Congress the enforcement power to advance the goals of the amendment, which include the guarantees of due process andEQUAL PROTECTIONof the laws Congress has used this power to apply modern civil rights laws as well as patent and trademark laws to state governments This power was not ques-tioned until the mid-1990s, when the Supreme Court began to issue decisions that strike down the application of federal statutes to the state governments In Seminole Tribe v Florida, 517 U.S 44, 116 S.Ct 1114, 134 L.Ed.2d 252 (1996), the court established a two-part test for deter-mining whether Congress abrogated the states’
immunity when enacting a particular statute It ruled that absent a state’s waiver, states retain their sovereign immunity unless (1) Congress unequivocally expressed its intent to abrogate the immunity, and (2) Congress acted pursuant
to a valid exercise of its enforcement power under Section 5 of the Fourteenth Amendment
The court held that, in order to satisfy the first prong of the test, Congress must make its intent to abrogate the states’ immunity unmis-takably clear
The court proceeded to apply this two-part test in a series of cases In Florida Prepaid Postsecondary Education Expense Board v College Savings Bank, 527 U.S 627, 119 S.Ct 2199, 144 L.Ed.2d 575 (1999), the court ruled that the state of Florida could invoke its sovereign immu-nity to block federal lawsuits against it by a bank charging it with patent and trademark law violations The court found that Congress had clearly intended to abrogate state sovereign immunity but had failed to satisfy the second part of the test The court stated that“Congress must identify conduct transgressing the Four-teenth Amendment’s substantive provisions,
SOVEREIGN IMMUNITY 279
Trang 3and must tailor its legislative scheme to reme-dying or preventing such conduct.” Because Congress failed to identify a pattern of patent
INFRINGEMENT by the states or a pattern of constitutional violations, the Eleventh Amend-ment barred the laws’ application to the states
The Supreme Court, in Alden v Maine, 527 U.S 706, 119 S.Ct 2240, 144 L.Ed.2d 636 (1999), ruled that a group of state employees could not sue their state employer using the provisions of the FAIR LABOR STANDARDS ACT (29 U.S.C.A 201 et seq.) In Kimel v Florida Board
of Regents, 528 U.S 62, 120 S.Ct 631, 145 L
Ed.2d 522 (2000), the court found that theAGE DISCRIMINATION in Employment Act of 1967 (ADEA), 29 U.S.C.A §§621-634, did not apply
to state governments The ADEA could not
be applied because under the second part of the Seminole Tribe test there must be a “congruence and proportionality between the injury to
be prevented or remedied and the means adopted
to that end.” Using this standard, the court found that ADEA was not“appropriate legislation.” The court noted that age is not aSUSPECT CLASSIFICATION
under the Equal Protection Clause of the Fourteenth Amendment Therefore, states may
“discriminate on the basis of age without offending the Fourteenth Amendment if the age classification is rationally related to a legitimate state interest.” ADEA prohibited “substantially more state employment decisions and practices than would likely be held unconstitutional” under the equal protection, rational basis standard
The Supreme Court also invalidated the application of part of the Americans with Disabilities Act (ADA), Pub L 101-336 (1990),
to state government In University of Alabama v
Garrett, 531 U.S 356, 121 S.Ct 955, 148 L.Ed
2d 866 (2001), the court struck down ADA applicability to damage lawsuits involving alleged disability employment DISCRIMINATION by state governments Congress could only be authorized
to include the states within ADA reach if it identified a history and pattern of unconstitu-tional employment discrimination against dis-abled persons However, the court concluded that the legislative record“simply fails to show that Congress did in fact identify a pattern of irrational state discrimination in employment against the disabled.” The court asserted that Congress had published only a handful of inci-dents to support this conclusion Absent a compelling historical pattern of discrimination, such as the racial discrimination against African
Americans that justified the VOTING RIGHTS ACT
OF 1965, the court saw no merit in stripping states of their immunity from citizen lawsuits for money
The court continued its promotion of states’ rights in Federal Maritime Commission v South Carolina State Ports Authority, 535 U.S 743, 122 S.Ct 1864, 152 L.Ed.2d 962 (2002) In this case the court demonstrated its continuing com-mitment to FEDERALISM by extending a state’s sovereign immunity to federal administrative law proceedings Though the case involved a fairly obscure federal commission, the court’s prece-dent could be extended to the many federal agencies and commissions that oversee the environmental and natural resources
The Supreme Court did restrict Eleventh Amendment immunity, on procedural grounds,
in Lapides v Board of Regents of the University System of Georgia, 535 U.S 613, 122 S.Ct 1640,
152 L.Ed.2d 806 (2002) In this action the court ruled that states could not claim Eleventh Amendment immunity when they voluntarily remove a case to federal court By doing so, the court concluded that the state had voluntarily waived its immunity, thereby giving aPLAINTIFF
the chance to argue the merits of the case The decision was likely to encourage states to litigate actions in state court if state law waives sovereign immunity
In state court actions, immunity continues
to be allowed in the absence of consent to be sued Depending on the type of case, different levels of immunity may apply Absolute immu-nity is generally allowed for judges and QUASI
-JUDICIAL officers, such as prosecuting attorneys and PAROLE board members For executive officers, immunity is a function of the amount
of discretion they possess to make decisions and the circumstances in which they act (Scheuer v Rhodes, 416 U.S 232, 94 S Ct 1683, 40 L Ed 2d 90 [1974]) Immunity has been denied to officials acting in excess of statutory authority (Greene v Louisville and Interurban Railroad Co., 244 U.S 499, 37 S Ct 673, 61 L Ed 1280 [1917]) or under an unconstitutional statute (Ex parte Young, 209 U.S 123, 28 S Ct 441, 52
L Ed 714[1908]) Immunity has been allowed when state property is involved or the state is an essential party for granting relief (Cunningham v Macon and Brunswick Railroad Co., 109 U.S 446,
3 S Ct 292, 27 L Ed 992[1883])
Until a Supreme Court decision in 1979, it was generally assumed, and decided by a court
Trang 4in at least one case (Paulus v South Dakota, 52
N.D 84, 201 N.W 867 [1924]), that a state’s
immunity must be recognized not only in its
own courts but also in the courts of other states
throughout the country The U.S Supreme
Court addressed the issue in Nevada v Hall,
440 U.S 410, 99 S Ct 1182, 59 L Ed 2d 416
(1979) That case involved an employee of the
University of Nevada who was driving in
California on official business and injured a
California resident in an automobile accident
The Supreme Court held that the
common-law doctrine of sovereign immunity had not
passed to the states when the United States was
created; therefore, it is up to the states to decide
whether to recognize and respect the immunity
of other states The Supreme Court held in
Hall that California could properly refuse to
respect Nevada’s sovereign immunity in the
California courts
Like the federal government, the states often
relied on private laws to provide relief to specific
individuals who would otherwise be unable to
sue due to sovereign immunity doctrines
Reco-gnizing that this arrangement was an inefficient
and nonuniform way to provide relief from
immunity doctrines, the states began to waive all
or parts of their immunity from lawsuits Many
states created administrative bodies with limited
capacity to settle claims against the state Several
states authorized suits against municipal
cor-porations, counties, and school districts whose
officers or employees injured individuals while
performing proprietary, but not government,
services The distinction between proprietary
and government services proved impossible to
apply uniformly Under modern law government
services are widely considered to include police
services, fire department services, and public
education Depending on the state involved,
streets, sidewalks, bridges, parks, recreational
facilities, electricity suppliers, gas suppliers, and
airport functions can be considered either
gov-ernment or proprietary services
As of 2009 most states had waived their
immunity in various degrees at both the state
and local government levels State supreme
courts first abolished immunity via judicial
decisions; later, legislative measures were enacted
at the state and local level to accept liability for
torts committed by civil servants in the
perfor-mance of government functions The law varied
by state and locality
The limits states place on their liability can
be substantial when there is a mass tort action, such as with the collapse of the I35W bridge
in Minneapolis, Minnesota, on August 1, 2007
Limits on how much the state will pay can produce injustice Minnesota law limited its liability for tort actions to $300,000 per victim and $1 million total for an incident, regardless
of the number of victims With 13 people killed and 145 people suffering injuries, $1 million was clearly not enough to compensate victims
The state had previously enforced this limit
on tort actions but the state legislature remedied the situation by creating a $38 million victims compensation fund
Suits Against Foreign Governments
Until the twentieth century, mutual respect for the independence, legal equality, and dignity of all nations was thought to entitle each nation to
a broad immunity from the judicial process
of other states This immunity was extended to heads of state, in both their personal and official capacities, and to foreign property In the 1812 case of The Schooner Exchange v M’Faddon,
11 U.S (7 Cranch.) 116, 3 L Ed 287, a ship privately owned by a U.S citizen was seized in French waters by Napoleon’s government and converted into a French warship When the ship entered the port of Philadelphia, the original owner sought to regain title, but the Supreme Court respected the confiscation of the ship because it occurred in accordance with French law in French waters
With the emergence of socialist and Com-munist countries after WORLD WAR I, the tradi-tional rules of sovereignty placed the private companies of free enterprise nations at a com-petitive disadvantage compared to state-owned companies from socialist and Communist countries, which would plead immunity from lawsuits European and U.S businesses that engaged in transactions with such companies began to insist that all contracts waive the sovereign immunity of the state companies
This situation led courts to reconsider the broad immunity and instead adopt a doctrine of restrictive immunity that excluded commercial activity and property
Western European countries began waiving immunity for state commercial enterprises through bilateral or multilateral treaties In 1952 the U.S STATE DEPARTMENT decided that, in considering future requests for immunity, it
SOVEREIGN IMMUNITY 281
Trang 5would follow the shift from absolute immunity
to restrictive immunity In 1976 Congress passed the Foreign Sovereign Immunities Act (FSIA) (28 U.S.C.A § 1601 et seq.) to provide foreign nations with immunity from the juris-diction of U.S federal andSTATE COURTSin certain circumstances This act, which strives to con-form to INTERNATIONAL LAW, prohibits sovereign immunity with regard to commercial activities
of foreign states or their agencies or with regard
to property taken by a foreign sovereign in violation of international law Customary inter-national law has continued to move toward a restrictive doctrine
The Supreme Court delved into the com-plexities of the FSIA when it addressed a U.S
federal lawsuit brought byHUMAN RIGHTSvictims against the Republic of the Philippines for inju-ries suffered under former President Ferdinand Marcos The plaintiffs recovered a $2 billion judgment and sought to recover funds from Marcos that were held in U.S financial institu-tions, but the Philippine government laid claim
to the monies as well The plaintiffs sued the Philippines’ government and a commission that was seeking to determine what money belonged
to the state and to the Marcos estate The gov-ernment and commission invoked FSIA and asked that they be dismissed from the lawsuit
The Supreme Court ultimately agreed with the defendants and dismissed the action Republic of the Philippines v Pimentel,—U.S.—, 128 S.Ct
2180, 171 L.Ed.2d 131 (2008)
In an earlier case, Republic of Austria v
Altmann, 541 U.S 677, 124 S.Ct 2240, 159 L
Ed.2d 1 (2004), the court held that FSIA applies
to acts committed before 1976 when FSIA was passed The court based this conclusion on numerous provisions in the act that “unques-tionably” applied to cases arising out of conduct committed before 1976 In addition, applying the law to“all pending cases regardless of when the underlying conduct occurred” fulfilled the intent of Congress to clarify the rules governing sovereign immunity claims and “eliminate[e]
political participation in the resolution of such claims.” To hold otherwise would force courts
to apply the confusing set of rules that existed prior to FSIA The court also suggested that the State Department could offer its opinion on particular cases to the courts and these opinions
“might well be entitled to deference as the considered judgment of the Executive on a particular question of foreign policy.”
FURTHER READINGS Chemerinsky, Erwin 2007 Federal Jurisdiction, 5th ed New York: Aspen Publishers.
Doernberg, Donald L 2004 Sovereign Immunity and/or the Rule of Law: The New Federalism Durham, NC: Carolina Academic Press.
Durchslag, Melvyn R 2002 State Sovereign Immunity: A Reference Guide to the United States Constitution Westport, CT: Praeger.
Shortell, Christopher 2009 Rights, Remedies, and the Impact
of State Sovereign Immunity New York: State Univ Press of New York.
CROSS REFERENCES Federal Tort Claims Act; Feres Doctrine; Immunity; Judicial Immunity; Section 1983; Tort Law.
SOVEREIGNTY The supreme, absolute, and uncontrollable power
by which an independent state is governed and from which all specific political powers are derived; the intentional independence of a state, combined with the right and power of regulating its internal affairs without foreign interference
Sovereignty is the power of a state to do everything necessary to govern itself, such as making, executing, and applying laws; imposing and collecting taxes; making war and peace; and forming treaties or engaging in commerce with foreign nations
The individual states of the United States do not possess the powers of external sovereignty, such as the right to deport undesirable persons, but each does have certain attributes of internal sovereignty, such as the power to regulate the acquisition and transfer of property within its borders The sovereignty of a state is deter-mined with reference to the U.S Constitution, which is the supremeLAW OF THE LAND Native American tribes possess a unique brand of sovereignty that allows them the rights of U.S citizens but also allows tribes self-governance, at least where tribal members are concerned
SPANISH-AMERICAN WAR The Spanish-American War of 1898 lasted only a few months It resulted in a U.S victory that not only ended Spain’s colonial rule in the Western Hemisphere but also marked the emergence of the United States as a world power,
as it acquired Puerto Rico, the Philippines, and Guam.THEODORE ROOSEVELT’s military exploits in Cuba catapulted him onto the national stage and led to the vice presidency and, ultimately, the presidency
Trang 6The conflict had its origins in Spain’s
deter-mined effort in the 1890s to destroy the Cuban
independence movement As the brutality of
the Spanish authorities was graphically reported
in U.S newspapers, especially Joseph Pulitzer’s
New York World and William Randolph Hearst’s
New York Journal, the U.S public began to
support an independent Cuba
In 1897 Spain proposed to resolve the conflict
by granting partial autonomy to the Cubans,
but the Cuban leaders continued to call for
complete independence In December 1897,
the U.S battleship Maine was sent to Havana
to protect U.S citizens and property On the
evening of February 15, 1898, the ship was sunk
by a tremendous explosion, the cause of which
was never determined U.S outrage at the loss
of 266 sailors and the sensationalism of the
New York press led to cries of “Remember the
Maine” and demands that the United States
intervene militarily in Cuba
PresidentWILLIAM MCKINLEY, who had
origi-nally opposed intervention, approved an April
20 congressional resolution calling for immediate
Spanish withdrawal from Cuba This resolution
precipitated a Spanish declaration of war against
the United States on April 24 Congress
imme-diately reciprocated and declared war on Spain
on April 25, stating that the United States
sought Cuban independence but not a foreign
empire
The war itself was brief due to the inferiority
of the Spanish forces On May 1, 1898, the
Spanish fleet in Manila Bay in the Philippines
was destroyed by the U.S Navy under the
command of Commodore George Dewey On
July 3, U.S troops began a battle for the city of
Santiago, Cuba Roosevelt and his First
Volun-teer Cavalry, the“Rough Riders,” led the charge
up San Juan Hill; he emerged as one of the war’s
great heroes With the sinking of the Spanish
fleet off the coast of Cuba on July 3 and the
capture of Santiago on July 17, the war was
effectively over
An ARMISTICE was signed on August 12,
ending hostilities and directing that a peace
conference be held in Paris by October The
parties signed theTREATY OF PARISon December 12,
1898 Cuba was granted independence, and Spain
agreed to pay the Cuban debt, which was
estimated at $400 million Spain gave the United
States possession of the Philippines and also
ceded Puerto Rico and Guam to the United
States Many members of the U.S Senate opposed the treaty, however They were con-cerned that the possession of the Philippines had made the United States an imperial power, claiming colonies just like European nations
This status as an imperial power, they argued, was contrary to traditional U.S foreign policy, which was to refrain from external entangle-ments The Treaty of Paris was ratified by only one vote on February 6, 1899
FURTHER READINGS Crawford, Michael J., Mark L Hayes, and Michael D.
Sessions 1998 The Spanish-American War: Historical Overview and Select Bibliography Washington, D.C.:
Naval Historical Center, Dept of the Navy.
Hart, Jonathan 2008 Comparing Empires: European Colo-nialism from Portuguese Expansion to the Spanish-American War New York: Palgrave Macmillan.
Hendrickson, Kenneth E 2003 The Spanish-American War.
Westport, Conn.: Greenwood Press.
Rosenfeld, Harvey 2000 Diary of a Dirty Little War: The Spanish-American War of 1898 Westport, Conn.:
Praeger.
Zimmermann, Warren 2002 First Great Triumph: How Five Americans Made Their Country a World Power New York: Farrar, Straus and Giroux.
SPECIAL APPEARANCE The act of presenting oneself in a court and thereby submitting to the court’s jurisdiction, but only for a specific purpose and not for all the purposes for which a lawsuit is brought
Teddy Roosevelt emerged as one of the Spanish-American War’s great heroes.
He was photographed along with members
of the First Volunteer Calvary, the “Rough Riders,” atop San Juan Hill in 1898.
AP IMAGES
SPECIAL APPEARANCE 283
Trang 7A party makes a special appearance before
a state court for the sole purpose of objecting
to the court’s jurisdiction over that party If the party makes a general appearance to respond
to the lawsuit, instead of a special appearance, thenCOMMON LAWdictates that the party thereby waives any objection to the court’s jurisdiction over her A party may object to the court’s jurisdiction for a number of reasons, such as when SERVICE OF PROCESS was insufficient or defective, there is a variance between the com-plaint and the summons, or the lawsuit was brought in the wrong court When a party wants to make a jurisdictional objection, she has the right to appear for the special purpose of making that objection, but according to com-mon law, the party must clearly and specifically state to the court that she is specially appearing
Rule 12(b) of the Federal Rules of Civil Procedure has abolished the distinction between general and special appearances for federal courts Therefore, parties can raise a jurisdic-tional objection along with other defenses in a responsive pleading in federal court However,
if a party wishes to make the jurisdictional objection initially without having to prepare a full responsivePLEADING, the federal courts will permit that party to do so if he specially appears
Some states have followed the Federal Rules
of Civil Procedure and have eliminated for state court matters the distinction between general and special appearances Many states still ack-nowledge the distinction, however, and some specifically provide for the distinction by statute
SPECIAL ASSESSMENT
A real property tax proportionately levied on homeowners and landowners to cover the costs
of improvements that will be for the benefit of all upon whom it is imposed
For example, a special assessment might be made to pay for sidewalks or sewer connections
SPECIAL COURTS Bodies within the judicial branch of government that generally address only one area of law or have specifically defined powers
The best-known courts are courts of general jurisdiction, which have unlimited trial juris-diction, both civil and criminal, within their jurisdictional area At the federal level, these are called district courts At the state level, these
courts have many different titles, including district court, trial court, county court, circuit court, municipal court, and superior court Appellate courts of general jurisdiction review the decisions of inferior courts and are typically called either courts of appeal or supreme courts The bulk of U.S courts, however, are special courts, which include all courts of limited and specialized jurisdiction that are not courts
of general jurisdiction or appellate courts A special court generally addresses only one or a few areas of law or has only specifically defined powers
Special courts in the United States devel-oped out of the English custom of handling different kinds of cases by establishing many different special courts Many of the special courts established in the United States during colonial times and shortly after the Constitution was adopted have been abolished, but new special courts continue to be created, especially
at the state and local level Special courts now handle the vast majority of all cases brought in the United States The majority of all cases brought in any particular state jurisdiction go to special courts
Special courts exist for both civil and crimi-nal disputes Cases tried in special, limited-jurisdiction criminal courts, such as traffic court
or misdemeanor court, may be reheard in a general-jurisdiction trial court without an appeal upon the request of the parties
Special courts do not include the many
ADMINISTRATIVE LAWcourts that exist at both the federal and state government level; administra-tive courts are considered part of theEXECUTIVE BRANCH, rather than the judicial branch How-ever, a general-jurisdiction court that hears only specific kinds of cases, such as a landlord-tenant branch of a general-jurisdiction trial court, is usually considered a special court
Special courts differ from general-jurisdiction courts in several other respects besides having
a more limited jurisdiction Cases are more likely to be disposed of without trial in special courts, and if there is a trial or hearing, it is usually heard more rapidly than in a court of general jurisdiction Special courts usually do not follow the same procedural rules that general-jurisdiction courts follow; often special courts proceed without the benefit or expense
of attorneys or even law-trained judges
Trang 8The judges who serve in special courts are
as varied as the special courts themselves Most
special court judges obtain their positions
through election, rather than through the merit
selection system common in general-jurisdiction
courts In addition, the majority of special court
judges are not lawyers In North v Russell, 427
U.S 328, 96 S Ct 2709, 49 L Ed 2d 534
(1976), the U.S Supreme Court upheld the use
of nonlawyer judges in special courts as
consti-tutional as long as a trial de novo (a new trial) in
a court of general jurisdiction with a
lawyer-judge is given upon the request of the parties
State and Local Special Courts
The states and localities have created many
special courts Juvenile courts are special courts
that have jurisdiction over delinquent,
depen-dent, and neglected children Juvenile courts
have special rules to protect the privacy of the
juveniles before them, such as requiring that
only the initials and not the full names of
juveniles be used in court paperwork so that
their identities are not revealed to the public
Juvenile court proceedings are closed to the
public, and generally the records are sealed
Probate courts are special courts of limited
jurisdiction that generally have powers over
the probate of wills and the administration of
estates In some states probate courts are
empowered to appoint guardians or approve
theADOPTIONof minors
Small-claims courts, called conciliation courts
in some states, provide expeditious, informal,
and inexpensive adjudication of small claims
The jurisdiction of small-claims courts is usually
limited to the collection of small debts and
accounts In most states parties are allowed to
represent themselves in small-claims court, and
some states prohibit lawyers from representing
the parties
Many states have also established family
courts that typically have jurisdiction over several
types of cases, includingCHILD ABUSEand neglect
proceedings, child and spousal support
pro-ceedings,PATERNITYdeterminations,CHILD CUSTODY
proceedings, juvenile delinquency proceedings,
and marital dissolutions
Several states have established tax courts
that have jurisdiction to hear appeals in all tax
cases and have the power to modify or change
any valuation, assessment, classification, tax, or
final order Massachusetts is unique in that it
has a land court with exclusive jurisdiction over all applications for registration of title to land within the commonwealth, writs of entry and various petitions for clearing title to real estate, petitions for determining the validity and extent
of municipalZONINGordinances and regulations, and all proceedings for foreclosure
Some states still have justice’s courts, inferior tribunals of limited jurisdiction presided over
by justices of the peace These courts are the primary legacy of the special courts of colonial times Most states, however, have abolished justice’s courts and transferred their powers and duties to courts of general jurisdiction
Some cities have established mayor’s courts
in which the mayor sits with the powers of a police judge or magistrate with respect to offenses committed within the city, such as traffic or ordinance violations In other states these courts are called police courts and are not presided over by the mayor
Federal Special Courts
Congress has established several special courts
to adjudicate federal matters ADMIRALTY courts are federal district courts that have jurisdiction over admiralty and maritime actions pursuant
to federal statute (28 U.S.C.A § 1333) BANK-RUPTCY courts are federal courts that are con-cerned exclusively with the administration of bankruptcy proceedings; they were also created pursuant to federal statute (28 U.S.C.A § 1334)
TheU.S.TAX COURTtries and adjudicates contro-versies involving deficiencies or overpayments in income, estate, and gift taxes U.S magistrates try misdemeanor cases and conduct preliminary proceedings in civil and criminal proceedings
TheU.S.COURT OF APPEALS FOR VETERANS CLAIMS
was created in 1988 to review decisions of the Board of Veterans’ Appeals, which hears cases involving benefit programs for veterans and their dependents Cases appealed from the Court
of Veterans Appeals are heard by the U.S court
of appeals for the applicable federal circuit
The U.S Court of Federal Claims was created
in 1982 to replace the former Court of Claims
Its powers are mandated by federal statute (28 U.S.C.A §§ 1491 et seq.) The Claims Court has jurisdiction to render money judgments upon any claim against the United States based
on the Constitution, a federal statute, or a federal regulation; any claim based on an express or implied contract with the United States; or any
SPECIAL COURTS 285
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The Court of International Trade has jurisdiction over any civil action against the United States arising from federal laws govern-ing import transactions It also has jurisdiction
to review determinations as to the eligibility of workers, firms, and communities for adjust-ment assistance under the Trade Act of 1974 (19 U.S.C.A §§ 2101 et seq.) Insular courts are special courts created by Congress with juris-diction over insular possessions (island territo-ries) of the United States, such as Puerto Rico
Military courts include courts-martial, courts
of military review, the U.S Court of Appeals for the Armed Forces, and the Military Court
of Inquiry, These courts are designed to deal exclusively with issues arising underMILITARY LAW, which governs the armed forces Courts-martial are ad hoc military courts, convened under authority of theUNIFORM CODE OF MILITARY JUSTICE
(10 U.S.C.A §§ 801 et seq.) to try and punish violations of military law committed by persons subject to that law The courts of military review are intermediate appellate criminal courts, estab-lished by the Military Justice Act of 1968 (10 U.S.C.A § 866) to reviewCOURT-MARTIAL convic-tions of members of their respective ARMED SERVICES in which the punishment imposed extends to death, dismissal or punitive discharge,
or confinement for one year or more The U.S Court of Appeals for the Armed Forces (USCAAF), formerly known as the Court of Military Appeals, which was created by Congress
in 1950 (10 U.S.C.A § 867), functions as the primary civilian appellate tribunal responsible for reviewing court-martial convictions of all the services Cases heard by the Courts of Military Review may be appealed to the USCAAF; any appeals from that court are heard by the U.S
Supreme Court The Military Court of Inquiry
is a court of special and limited jurisdiction, convened to investigate specific matters and advise whether further proceedings should be pursued
A Court for the Trial of Impeachments is a tribunal empowered to try any officer of govern-ment or other person brought to its bar by the process ofIMPEACHMENT At the national level, the Senate is the Court for the Trial of Impeach-ments of federal officers, and in most states the upper house of the legislature is the Court for the Trial of Impeachments of state officers
RESOURCES Bamberger, Phylis Skloot 2003 “Specialized Courts: Not a Cure-All ” Fordham Urban Law Journal 30 (March) Davis, Wendy N 2003 “Special Problems for Specialty Courts.” ABA Journal 89 (February).
Kozlowski, Mark, and Anthony Lewis 2003 The Myth of the Imperial Judiciary: Why the Right Is Wrong about the Courts New York: New York Univ Press U.S Court of Appeals for the Armed Forces Website Available online at http://www.armfor.uscourts.gov (accessed August 26, 2009).
Wheeler, Russell R 1987 “Courts of Limited and Special-ized Jurisdiction ” In Encyclopedia of the American Judicial System Vol 2 Edited by Robert J Janosik New York: Scribner ’s.
CROSS REFERENCES Federal Courts; Jurisdiction; Judiciary; Juvenile Law; Military Law; State Courts.
SPECIAL DAMAGES Pecuniary compensation for injuries that follow the initial injury for which compensation is sought The terminology and classification of types
of damages is varied, at times contradictory, and often confusing The term“special damages” is one such term that can produce uncertainty, depending on the jurisdiction and context in which it is invoked
Special damages are sought in lawsuits based
on contract and TORT They are asked for in addition to“general damages.” These two types are classified as COMPENSATORY DAMAGESand are both designed to return persons to the position they were in prior to the alleged injury For example, if a person was injured in an auto-mobile accident, the victim could seek damages that would cover medical expenses, damage to the motor vehicle, and the loss of earnings now and in the future Each of these would be classified as special damages If the victim sought
a money award for pain and suffering, mental anguish, and loss of consortium, these would
be classified as general damages Thus, special damages are based on measurable dollar amounts
of actual loss, while general damages are for intangible losses that can be inferred from special damages as well as other facts surround-ing the case In this description special damages are damages that are reduced to a“sum certain” before trial This description is typically used
in tort actions
However, the definitions of special and general damages are reversed in contractual disputes Thus, general damages in contract
Trang 10would include the difference between contract
and market prices, the difference between the
value of the goods as delivered and as warranted,
and interest on money that has been wrongfully
withheld In contrast, special damages would
include all other damages In contract special
damages and“consequential” damages are
virtu-ally interchangeable In this context the losses
flowing out of the breached contract could be
compensated for as special damages For
exam-ple, the lost profits that resulted from the failure
of the seller to deliver the goods could be
claimed as special damages However, it is
commonplace for sellers to require buyers to
sign a contract excluding the recovery of special
or consequential damages
In addition, special damages are sometimes
described in statutes when the legislature seeks
to identify specific types of awards that are
available when the state or a private person
violates a person’s rights For example, a statute
may list the special damages plaintiffs are entitled
to if their real property is improperly taken
through EMINENT DOMAIN
FURTHER READINGS
Ball, David 2001 David Ball on Damages Denver, Colo.:
National Institute for Trial Advocacy.
Brown, Mark A and Christopher W Smart 2007 “Are
Consequential Damages Recoverable from Title Insurers
or Has There Been a Change in Policy? ” The Florida Bar
Journal 81 (October).
Dunn, Robert L 1998 Recovery of Damages for Lost Profits.
Westport, Conn.: Lawpress Corp.
Greene, Edie, and Brian H Bornstein 2002 Determining
Damages: The Psychology of Jury Awards Washington,
D.C.: American Psychological Association.
CROSS REFERENCES
Lawsuit; Restitution.
SPECIAL MASTER
A special master is a representative of the court
appointed to hear a case involving difficult or
specialized issues
Special masters are OFFICERS OF THE COURT
who serve in aQUASI-JUDICIALrole at the pleasure
of the appointing court Special masters are
employed in complex civil actions where their
expertise would assist the court in developing
the record In addition, special masters may be
established by Congress to assist in the
admin-istration of claims against the government
Rule 53 of the Federal Rules of CIVIL
PROCEDURE (FRCP) provides the authority for
the appointment of special masters by U.S
District Courts Because state civil procedure rules are modeled on the FRCP, similar authority
is granted to state trial courts Rule 53 defines the word master to include referees, auditors, examiners, and assessors Special masters are compensated for their work The court sets the rate of compensation, and the parties must pay these costs However, when a federal magistrate judge serves as a master, no additional compen-sation is paid
Rule 53 was revised in 2003 The revised rule featured several changes to the previous version, including the following: (1) allowing the limited use of special masters in trials;
(2) authorizing use of special masters whenever the parties consent; (3) authorizing use of masters
to assist with matters during pre-trial and post-trial; (4) adopting procedures and standards for the appointment of special masters; and (5) imposing standards for reviewing a special master’s actions
When a matter is to be tried before a jury,
a referral to a special master is appropriate only
if the issues are complicated If a case is not to
be tried before a jury, a special master is appro-priate only when “some exceptional condition requires it.” The SUPREME COURT, in La Buy v
Howes Leather Company (352 U.S 249, 77 S Ct
309, 1 L Ed 2d 290 [1957]), ruled that court congestion that delayed cases for long periods did not, by itself, become an exceptional condi-tion that justified the appointment of a special master In addition, the complexity of the case must be extreme, as many fields of CIVIL LAW
are complex To rule otherwise would deprive parties of their right to a jury trial Though the Court made the appointment of special masters more difficult, lower courts have used masters when they could justify the complexity and exceptional nature of the case
The appointing court may specify or limit the powers of the master and may also limit the issues the master considers However, once given this appointing order the special master has the authority to regulate all proceedings and
to compel the production of documents and other evidence In addition, the master may put witnesses and parties under oath and may examine them Once the evidence has been taken, the special master files a report with the appointing court This report may contain findings of fact and conclusions of law Once
SPECIAL MASTER 287