In creating the test to determine whether government employees in the Commonwealth of Virginia are entitled to the benefit of sovereign tort immunity, the Supreme Court of Virginia stated, "[a] dmittedly, no single all-inclusive rule can be enunciated or applied in determining entitlement to sovereign immunity." The court, however, managed to formulate a four-part test to be consistently applied to each situation requiring a determination of whether sovereign immunity should be granted to a state employee. This article will examine the discretion prong of the four-part test created by the court in James v. Jane and the reasons why the court's decision to not fully articulate how to apply this prong has produced non-uniform application of the test by the lower courts when they determine whether sovereign immunity shields an employee of the Commonwealth from tort liability. Having examined the aftermath of the court's decision in James, it has become clear that a significant number of cases were brought before the court regarding the appropriate application of the test, particularly with respect to the discretion prong. Furthermore, after speaking to several practitioners in the Commonwealth regarding their thoughts on the discretion prong of the four-part test, it has become clear that the test has not been interpreted uniformly. Section I of this article will outline a brief discussion of the principles that validate the doctrine of sovereign immunity. Section II will discuss the history of sovereign immunity in Virginia leading up to the four-part test created in James. Section III will discuss the aftermath of James and examine the results in cases in which the Supreme Court of Virginia has applied the four-part test. Section IV will discuss the opinions of members of the professional community in the Commonwealth on the effectiveness of the four-part test. Finally, Section V will conclude this article with a suggestion on how to handle sovereign immunity cases in the future.
Colleen F. Shepherd,
Why All the King's Horses and All the King's Men Couldn't PutSovereign Immunity Back Together Again:An Analysis of the Test Created in James v. Jane,
Rich. J. L. & Pub. Int.
Available at: https://scholarship.richmond.edu/pilr/vol11/iss1/2