Orleans Parish School Board v. Williams 300 So. 2d 848

REDMANN, Judge.

Defendant, sued for breach of an employment contract, appeals from the dis*849missal of his reconventional tort demand against plaintiff school board on an exception based on constitutionally-granted sovereign immunity,1 La.Const. (1921) art. 19 § 26.2 We reverse.

We preliminarily note that the judicially-established doctrine of sovereign immunity from liability and from suit has been abrogated in Louisiana by Board of C.P. of New Orleans v. Splendour S. & E. Co., La.1973, 273 So.2d 19. We also note that (like art. 3 § 35, discussed in Splendour) La.Const. art. 19 § 26, upon which the school board relies, presupposes immunity from suit and proceeds to revoke previously-granted legislative waiver. Art. 19 § 26 basically withdraws consent to be sued, although it does at one point add “and no such suit or proceeding shall be permitted except as provided in this section.” We will accept for purposes of this case that art. 19 § 26 established an immunity from suit for the agencies (including school boards) it names.

But subsequent to the 1956 adoption of art. 19 § 26 the 1960 amendment of art. 3 § 35 authorized general (rather than individual) waivers, Terrebonne Parish Sch. Bd. v. St. Mary Parish Sch. Bd., 1961, 242 La. 667, 138 So.2d 104; and La.Acts 1960, Ex.Sess., No. 25 § 1, amending R.S. 17:51, effectively waived every parish school board’s immunity from suit, id.

By La.Acts 1962, No. 67 the Legislature amended R.S. 17:51 to delete the 1960 authorization to be sued and attempted to reinstitute immunity from suit (except on contract).

The Legislature does not have the power to make school boards immune from suit. We may assume that La.Const. art. 19 § 26 at one time made school boards immune from non-contractual suits (ignoring obvious questions of due process and equal protection). But art. 3, § 35 subsequently authorized waivers by general laws and provided that “each authorization by the Legislature for suit against the State shall be effective and valid for all purposes, as and from the date thereof, as a waiver of the defendant’s immunity both from suit and from liability.” La. Acts 1962, No. 67, is unconstitutional insofar as it attempted to overrule art. 3, § 35 and to provide that the 1960 general waiver is not “effective and valid for all purposes, as and from the date thereof . ” Thus, that act’s 1962 amend*850ment of R.S. 17:51 is not effective to grant immunity from suit to the school board.

Reversed.

LEMMON, J., concurs with written reasons.

LEMMON, Judge

(concurring specially).

I agree with the majority reasoning that the 1962 amendment to R.S. 17:51 could not grant school boards immunity from suit.

However, I prefer to reach the majority result on other grounds.

Judicially-established governmental immunity was judicially repudiated in the Splendour case as unfair and discriminatory law. The school board here asserts immunity on the basis of a constitutional grant under Art. 19, § 26.

Whether enacted by the Legislature or adopted by the electorate, any law which limits the right to sue to persons who obtain the favor of a political body is obviously violative of the Equal Protection and Due Process clauses of the Constitution of the United States. The requirement that a person- enter political channels in order to exercise his right to sue in tort is an archaic political evil of the worst kind, and should be struck down immediately.

BY THE COURT EN BANC

The School Board’s application for rehearing notes that our conclusion that the School Board does not have governmental immunity from tort suit or liability is in conflict with our decision in Quina v. Orleans Parish Sch. Bd., La.App.1969, 224 So. 2d 835.

If Quina is not already impliedly overruled by Board of C. of P. of New Orleans v. Splendour S. & E. Co., La.1973, 273 So.2d 19, it is now expressly overruled by us.

Rehearing is refused.