Sovereign immunity and Ben Kruibdos’s claim for wrongful termination

October 8, 2013

Tuesday, October 8, 2013

Good morning:

This is my 701st post on this blog.

As most of you probably know, Ben Kruidbos, the former head of IT services in Angela Corey’s office has sued her for $5 million alleging wrongful termination of employment. Kruidbos claims that he was fired in retaliation for blowing the whistle on Corey and Bernie de la Rionda for withholding exculpatory evidence from defense counsel in the George Zimmerman case. The evidence consisted of photographs and text messages on Trayvon Martin’s cell phone that were irrelevant and inadmissible at trial and, as it turned out, the defense had already obtained the information from its own experts.

Kruidbos is represented by Wesley White, a former Assistant State Attorney who was fired by Corey for unsatisfactory work.

Corey claims she cannot be sued because of the legal doctrine of sovereign immunity, so let’s take a look at the doctrine and see if we agree or disagree with her claim.

Sovereign immunity is an ancient legal doctrine that the sovereign, or an agent acting on behalf of the sovereign, cannot be sued unless the sovereign consents to being sued. An excellent example of sovereign consent to be sued is the Federal Tort Claims Act, which permits people to sue the United States for injuries inflicted by its agents.

The individual states were sovereign in their affairs when they joined the union and they have retained their sovereignty. See Alden v. Maine, 527 U.S. 706 (1999). Therefore, the State of Florida retained its sovereignty when it joined the union and Angela Corey, the elected State Attorney for the judicial district in which Jacksonville is located, may assert the defense of sovereign immunity, unless the state has consented to be sued by former state employees seeking compensation for wrongful termination.

I suspect that the State of Florida may have consented to be sued by former employees alleging wrongful termination of employment. I imagine that state employees have certain statutory procedural rights depending on whether they have passed a probationary period. Unless he were a terminable at will employee or still on probationary status, the existence of such a framework would defeat a defense of sovereign immunity.

Let us assume for the sake of argument that it did not.

In Alden v. Maine, probation officers employed by the State of Maine sued the state seeking compensation for unpaid overtime. In a 5-4 decision written by Justice Anthony Kennedy, the Supreme Court of the United States (SCOTUS) held that the doctrine of sovereign immunity barred the lawsuit.

There is a significant exception, however, involving legislation enacted by Congress to protect activities protected by the 14th Amendment.

The 14th Amendment provides in pertinent part,

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Therefore, the issue is whether a suit for alleged wrongful termination of employment survives a defense of sovereign immunity when it is based on a claim that employment was terminated in retaliation for the employee disclosing evidence he believed to be favorable to the accused in a criminal case (i.e., a violation of the Due Process Clause of the 14th Amendment).

I believe it does and for that reason I would be inclined to deny Corey’s motion to dismiss based on sovereign immunity.

Now let’s take a look at the merits of the claim.

I doubt the evidence was favorable, despite what Kruidbos may have believed, and I think the young man was used by his lawyer, Wesley White, who wanted to retaliate against Corey for firing him. The evidence certainly was not admissible and the defense already had it, so it suffered no harm.

Therefore, I would be inclined to deny Kruibdos’s claim for wrongful termination.

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