Re: The insolence of Office; Hoisting them on their own Petards

On Thu, 09 Oct 2003 04:53:24 GMT, Ken Smith <[EMAIL PROTECTED]>
wrote:

>Larry wrote:
>
>> In article <[EMAIL PROTECTED]>, Ken Smith
>> <[EMAIL PROTECTED]> wrote:
>> >Merlin wrote:
>> >> [EMAIL PROTECTED] (Larry) wrote:
>> >> >In article <[EMAIL PROTECTED]>, [EMAIL PROTECTED]
>> >> >
>> >> >For starters, read the eleventh amdendment. (Which I assumed you knew,
>> Merlin :))
>> >> >
>> >> ><http://caselaw.lp.findlaw.com/data/constitution/amendment11/>
>> >>
>> >>         Thanks,  Rightly cited.  The OP is in for some big fun now!
>> >
>> >  While you two are busy congratulating yourselves on your combined
>> >"how in the hell did you pass the Bar, anyway?" knowledge of the law
>> >in this area, you seem to forget that it is not the state, but state officials,
>> >who are the actual tortfeasors in this arena.  If you want state officials
>> >to do their job, you sue the state; if you prefer to punish them for their
>> >misconduct in the business end, you sue them personally.
>>
>> Umm, Kenny, read Ex Parte Young.  A suit against a state official will
>> affect state revenues (i.e. you're seeking damages) then it will be
>> treated as a suit against the sovereign state, even if the state officials
>> are personally named as defendants.  Unless you can show they somehow
>> acted outside of the scope of their authority.
>
>  That is the issue, isn't it?   If a government official is acting within the
>scope of his authority and discretion, he isn't committing "misconduct,"
>is he?  

Bad analysis.  It begs the question.  If immunity were only for acts
that are not "misconduct" what IS immunity?  The whole concept of
immunity is about official, even though wrongful, acts. It's about not
making OUR government officials answerable privately to YOU for their
alleged "misconduct."

- Jon Beaver