When the Maine Legislature authorizes a state agency to sign a contract with a local utility, can the utility sue the State if the agency breaches that contract, or does sovereign immunity still apply?

Plain-English summary

Commissioner of Corrections Donald Allen asked AG James E. Tierney whether the State could be sued if the Department breached a planned contract with the Warren Sanitary District for the construction and use of a wastewater treatment facility serving the Warren State Prison. The authorizing law was Chapter 23 of the Legislative Resolves of 1989 (H.P. 1197, L.D. 1664), an emergency resolve authorizing Corrections to enter into an agreement with the District and the Camden and Rockland Water Company for the construction of a sewer and water system and for the payment of user fees. Tierney concluded that the Legislature, by enacting that resolve, had implicitly waived the State's sovereign immunity for any suit on the resulting contract. The Law Court had first identified, but not decided, the implicit-waiver theory in Drake v. Smith, 390 A.2d 541, 545 (Me. 1978), noting the trend in other jurisdictions toward implied waiver when the Legislature has enacted a statute "plainly contemplating that the State will become a party to express contracts concerning a particular subject matter." The Court then adopted the trend in Indian Township Passamaquoddy Reservation Housing Authority v. Governor, 495 A.2d 1189, 1191 n.2 (Me. 1985), holding that legislation authorizing the State to enter agreements with the Indian Housing Authorities implicitly waived immunity for suits on those agreements. Tierney read Chapter 23 of the 1989 Resolves as the same kind of authorizing legislation, with the same implicit waiver, so the Warren Sanitary District could sue the Department of Corrections on the wastewater contract.

Currency note

This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is sovereign immunity and why does it usually block suits against the State?

Sovereign immunity is the doctrine that the State cannot be sued without its consent. Without a statutory or constitutional waiver, a party who believes the State has wronged it generally cannot recover damages in court. The doctrine forces would-be plaintiffs to find a specific waiver before they can proceed.

What was the Indian Township case and why did Tierney rely on it?

In Indian Township Passamaquoddy Reservation Housing Authority v. Governor, 495 A.2d 1189 (Me. 1985), the Law Court held that when the Legislature passed a statute authorizing the State to enter into agreements with Indian Housing Authorities, it implicitly consented to be sued for breach of those agreements. That was the first Maine decision squarely adopting the implicit-waiver doctrine, which Drake v. Smith had only flagged. Tierney treated Indian Township as the controlling precedent for the Warren analysis.

Why is Chapter 23 of the 1989 Resolves a "resolve" rather than a regular statute?

Maine traditionally uses resolves for one-off legislative authorizations of executive action, in contrast to public laws of general application. Chapter 23 was an emergency resolve, meaning it took effect on approval by the Governor (June 7, 1989) rather than waiting 90 days after the recess.

What kind of remedy would the District actually get if the State breached the contract?

The opinion does not specify damages, equitable relief, or any other remedy. It only addresses the threshold question of whether the immunity bar applies to a suit on the contract.

Background and statutory framework

The Warren State Prison needed a new sewer and water system. The Warren Sanitary District and the Camden and Rockland Water Company were the local utilities positioned to supply the construction. To allow the Commissioner of Corrections to sign binding agreements with these private and quasi-public entities, the Legislature passed Chapter 23 of the 1989 Resolves as an emergency measure. Commissioner Allen, before signing, asked whether the State's traditional immunity from contract suits left the District without a remedy if Corrections failed to perform. Tierney's answer rested on the implicit-waiver doctrine that the Law Court had recognized five years earlier in Indian Township.

Citations

• Chapter 23 of the Legislative Resolves of 1989 (H.P. 1197, L.D. 1664) (authorizing Corrections to contract with the Warren Sanitary District and the Camden and Rockland Water Company)
• Drake v. Smith, 390 A.2d 541, 545 (Me. 1978) (Law Court flagging the implicit-waiver question)
• Indian Township Passamaquoddy Reservation Housing Authority v. Governor, 495 A.2d 1189, 1191 n.2 (Me. 1985) (adopting implicit-waiver doctrine)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1990/ag_19900706.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

90-6

JAMES E. TIERNEY
ATTORNEY GENERAL

STATE OF MAINE
DEPARTMENT OF THE ATTORNEY GENERAL
STATE HOUSE STATION 6
AUGUSTA, MAINE 04333

July 6, 1990

Donald Allen, Commissioner
Department of Corrections
State House Station 111
Augusta, Maine 04333

Dear Commissioner Allen:

You have requested an opinion as to whether the Legislature has waived the State's sovereign immunity in relation to a suit brought by the Warren Sanitary District should the Department of Corrections fail to fulfill its obligations under contracts proposed to be signed between the District and the Department for the construction and use of a wastewater treatment facility. In particular, you have asked whether such a waiver was accomplished by the passage of Chapter 23 of the Legislative Resolves of 1989, which authorized you to enter into an agreement with the Warren Sanitary District for the construction of a wastewater treatment facility and for the payment of user fees. The Opinion of the Department of Attorney General is that the Legislative Resolve did waive the State's sovereign immunity.

The Law Court first raised but did not decide whether the Maine Legislature might waive the State's sovereign immunity by implication in Drake v. Smith, 390 A.2d 541, 545 (Me. 1978). The Court noted the trend in other jurisdictions for finding an implicit waiver of sovereign immunity when the Legislature has enacted a statute "plainly contemplating that the State will become a party to express contracts concerning a particular subject matter." In those jurisdictions, it had been found that sovereign immunity was waived as to a suit brought against the State for the breach of such an express contract.

The Court did, however, decide to extend that trend to Maine when, in Indian Township Passamaquoddy Reservation Housing Authority v. Governor, 495 A.2d 1189, 1191 n.2 (Me. 1985), it held that the Legislature, in enacting a statute authorizing the State to enter into agreements with the Indian Housing Authorities, had implicitly waived its immunity from suit upon those agreements.

Chapter 23 of the 1989 Resolves, a copy of which is attached, has authorized the State to enter into an agreement with the Warren Sanitary District for the construction of a wastewater treatment facility and for the payment of user fees for that facility. That authorization contains the State's implicit waiver of sovereign immunity as to a suit for the breach of that agreement by the State. In other words, the District will be able to sue the Department of Corrections should it fail to abide by any contractual agreement it makes with the District that concerns the construction or use of the wastewater treatment facility.

I trust the foregoing fulfills your request for an opinion. If you should need further clarification, please do not hesitate to contact me again.

JAMES E. TIERNEY
Attorney General

JET/bls
Attachment

(Attached: Chapter 23 of the 1989 Resolves, H.P. 1197 - L.D. 1664, "Resolve, Authorizing the Commissioner of Corrections to Enter into an Agreement with the Warren Sanitary District and the Camden and Rockland Water Company to Construct a Sewer and Water System for the Warren State Prison and Pay User Fees," approved June 7, 1989 as emergency legislation.)