Time Does Not Run Against the King — But What About The Prince? When Municipalities Can Assert Nullum Tempus

Vol. 17 No. 4

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The doctrine of nullum tempus occurrit regi (referred to herein as “nullum tempus”) is a rule that exempts the federal government and most states from general limitations periods.[1]  The phrase literally means “no time runs against the king.”

While this rule can result in liability of unlimited duration on federal and certain state projects, it is far less protective to municipalities and political subdivisions, who can only assert the rule in limited circumstances.  This article addresses the differing approaches used by the various states to determine whether nullum tempus extends to municipalities and political subdivisions.

I. The Nullum Tempus Doctrine

The purpose of the nullum tempus doctrine is to protect the public interest, based on the policy that the public should not pay the price for the failure of their officials to bring timely actions.[2]  The rule is based upon “the great public policy of preserving the public rights, revenues, and property from injury and loss, by the negligence of public officers.”[3] 

Application of this ancient doctrine varies widely across U.S. jurisdictions, as some states have largely abandoned the doctrine,[4] while others continue to enforce it today.  Among states applying the doctrine, courts use different approaches to determine when it extends to political subdivisions such as state agencies, counties, or municipalities. 

II. Relationship to Sovereign Immunity

Nullum tempus and sovereign immunity are often linked as concepts, because both are premised upon the principle that the sovereign should enjoy greater protections than ordinary citizens.  Nonetheless, despite the analogous nature of the doctrines, there is a question as to whether the two doctrines are actually related. 

Some jurisdictions hold that the two doctrines are so “intertwined in policy and practice” that abrogation of one doctrine compels abrogation of the other.[5]  This reasoning is based on the belief that nullum tempus is “an aspect of sovereign immunity,” and abolition of sovereign immunity undermines nullum tempus.[6]  Other jurisdictions conclude that sovereign immunity and nullum tempus are distinct doctrines.[7]   Thus while the principles applied for sovereign immunity may be analogous to nullum tempus, many courts will not follow the same approach when evaluating the application of one or the other.

III.  Different States' Approaches to Nellum Tempus

There is no uniform test to determine whether and to what extent municipalities and political subdivisions can exercise the doctrine.  Some states hold that the doctrine applies to all government actors, while other states have taken the position that the doctrine does not apply to municipalities or political subdivisions.  The majority of states, however, have taken a middle ground approach.  Among these states, there are several different tests that are applied.

(A) State vs. Municipality.

In some jurisdictions, including Alabama, Delaware, Indiana, New Mexico, New Hampshire, Virginia, and Washington, municipalities are not afforded protection under nullum tempus.[8]  The justification for this approach is that nullum tempus only applies to the state at large, and political subdivisions are not the state.[9]  Even in states where nullum tempus is deemed not to extend to municipalities and political subdivisions, an exception may apply where the state delegates its sovereign powers, which could include construction and maintenance of public parks, swimming pools, and merry-go-rounds, as well as the design and construction of educational facilities.[10]

A minority of states allow the doctrine to afford absolute protection to all government actors, including municipalities and political subdivisions, unless otherwise prescribed by statute (i.e., Oregon and Mississippi).[11]  In those states, the only question about application of the doctrine may be whether the entity at issue qualifies as a political subdivision or not.[12]

(B) The Governmental vs. Proprietary Function Test.

A large number of jurisdictions have adopted the governmental vs. proprietary function test, in which the court looks to see if the municipality or political subdivision is acting in a private capacity.[13]  States that have adopted this type of governmental vs. proprietary function test include Arizona, Kansas, Maine, Maryland, North Carolina, Wyoming, Connecticut, the District of Columbia, and Iowa.[14]  Governmental functions are those that were “historically performed by the government, and which are not ordinarily engaged in by private corporations.”[15]  Political subdivisions act in a governmental capacity when they “promot[e] or protect[] the health, safety, security or general welfare” of their citizens.[16]  Proprietary functions, on the other hand, are functions exercised when an enterprise is commercial in nature, are carried out by private individuals, or are for the profit, benefit, or advantage of the governmental entity performing the activity.[17] 

Several courts have acknowledged that the public/private function distinction is not easy to apply.[18]  By way of example, a city was found to be engaged in a proprietary function when it sued for breach of contract against a private party in connection with construction of a bridge that was not used by the public, not maintained by the city, and not connected to any public streets.[19]  On the other hand, a county seeking to enforce bonds against a defendant was deemed to be engaged in a governmental function where the bonds existed (per statute) to ensure compliance with subdivision ordinance requirements and the subdivision was open to the public.[20]

(C) The Public vs. Private Rights Test.

Other jurisdictions focus on the nature of the right being enforced rather than looking at the function being performed by the actor.[21]  To engage in this analysis, some states examine factors that are indicative of the right being asserted.   For example, Illinois looks at: (1) the effect of the interest on the public, (2) the obligation of the governmental entity to act on behalf of the public, and (3) the extent to which public funds must be expended.[22]  Pennsylvania uses a two-pronged test to determine whether a public right is being advanced:  (1) whether the claim accrued to the municipality in its governmental capacity, and (2) whether the obligation being enforced is imposed by law as distinguished from one arising out of an agreement voluntarily entered into by the defendant.[23]

(D) The Ultimate Right At Issue Test.

One rarely applied approach is the “ultimate right at issue” test adopted by Oklahoma courts.  This test looks to determine whether the action is brought by a governmental entity in its sovereign capacity to vindicate a public right.[24]  This requires establishing (1) that the action was brought by a government entity in its sovereign capacity; and (2) that the activities of the governmental entity “affect the public generally.”[25]  The rationale behind this approach is that, in Oklahoma, after the court abrogated sovereign immunity, the legislature eliminated the distinction between governmental and proprietary functions.[26]

IV. Conclusion

The application of nullum tempus can vary widely from one jurisdiction to another.  Accordingly, while the king (the federal and state governments) may evade statutes of limitations in most instances, construction professionals should be aware that in many instances, the princes (the municipalities and subdivisions) lack this same right. 

Endnotes

1. United States v. Thompson, 98 U.S. 486, 489 (1878).

2. Id. 

3. State of NH v. Lake Winnipesaukee Resort LLC, 159 N.H. 42, 45 (2009) (quoting United States v. Hoar, 26 F. Cas. 329 (C.C.D. Mass. 1821)).

4. See, e.g., City of Colorado Springs v. Timberlane Assoc., 824 P.2d 776, 783 (Colo. 1992) (abolishing the doctrine as it applies to local government because there was “no substantial benefit in tolerating official tardiness”); Shootman v. DOT, 926 P.2d 1200, 1207  (Colo. 1996) (abolishing the doctrine as applied to the state because “the foundation of the common law doctrine of nullum tempus as applied to the State has been so extensively eroded that the doctrine is no longer supportable”); Fla. Stat. Ann. § 95.011 (civil actions, including those brought by the state or a political subdivision, municipality, or public corporation, are barred unless brought within the time prescribed in the statute); Ga. Code Ann. § 9-3-1 (the state is “barred from bringing an action if, under the same circumstances, a private person would be barred”); State v. Standard Oil Co., 568 F. Supp. 556, 567-69 (D. Minn. 1983) (Minnesota legislature had waived use of nullum tempus “in actions such as the one at hand”); Mo. Rev. Stat. § 516.360 (limitations apply to actions brought in the name of the state); State ex rel. Robb v. Poelker, 515 S.W.2d 577, 584 (Mo. 1974); Mont. Code Ann. § 27-2-103 (limitations apply to “actions brought in the name of the state or for the benefit of the state in the same manner as to actions by private parties”); Nev. Rev. Stat. § 11.255 (“The provisions of this chapter concerning actions other than for the recovery of real property shall apply to actions brought in the name of the State, or for the benefit of the State, in the same manner as to actions by private individuals.”); State of New Jersey Dep’t of Envtl. Prot. v. Caldeira, 171 N.J. 404, 408-09 (2002) (quoting ; New Jersey Educ. Facilities Auth. v. Gruzen P’ship, 592 A.2d 559 (N.J. 1991) (“In a series of 1991 opinions, we abolished the nullum tempus doctrine ‘insofar as it would preclude the application of general statutes of limitations to the state.’”); N.Y.C.P.L.R. § 201 (actions, including those “brought in the name or for the benefit of the state, must be commenced within the time specified”); State ex. Rel. Condon v. City of Columbia, 528 S.E.2d 408, 412-13 (S.C. 2000); State v. Kermit Lumber & Pressure Treating Co., 488 S.E.2d 901, 907-08 (W. Va. 1997) (quoting W. Va. Code § 55-2-19 (1923) (“the legislature … altered the common law rule of nullum tempus occurrit regi by expressly stating that ‘[e]very statute of limitation, unless otherwise expressly provided, shall apply to the State’”) (emphasis in original); Mass. Gen. Laws. ch. 260, § 18 (limitations that are applicable to personal actions “shall apply to actions brought by or for the commonwealth”).  Notwithstanding this, it may be the case that the legislature carves out exceptions.  See, e.g., Minn. Stat. § 541.01 (indicating that statutes of limitations apply to the state and political subdivisions except in cases to prevent occupants of public ways, levees, squares, or other grounds dedicated or apportioned for public use, from acquiring title to that land).

5. Joseph Mack, Nullum Tempus: Governmental Immunity to Statutes of Limitation, Laches, and Statutes of Repose, 73 Def. Counsel J. 180, 187 (2006) (citing State ex rel. Condon, 528 S.E.2d at 413; City of Colorado Springs, 824 P.2d 776; Gruzen P’ship, 592 A.2d 559).

6. Id.

7. Id.  (citing Dept. of Transp. v. Sullivan, 527 N.E.2d 798 (Ohio 1988); Shelbyville v. Shelbyville Restorium, Inc., 451 N.E.2d 874 (Ill. 1983); Dept. of Transp. v. J.W. Bishop & Co., 439 A.2d 101 (Pa. 1981)); Fennelly v. A-1 Machine & Tool Co., 728 N.W.2d 163, 169, n. 3 (Iowa 2006) (“We reject the approach of some other courts, see, e.g., Shootman v. Dep’t of Transp., 926 F.2d 1200, 1205 (Colo. 1996); State ex rel. Condon v. City of Columbia,  339 S.C. 8, 528 S.E.2d 408, 413(S.C. 2000), that have held that abrogation of sovereign immunity alone was the death knell of nullum tempus.”). 

8. See, e.g., Bd. of Sch. Comm’rs of Mobile Co. v. Architects Group, Inc., 752 So.2d 489, 491-92 (Ala. 1999) (nullum tempus applies only to the State itself and not to political subdivisions); Mayor and City Council of Wilmington v. Dukes, 52 Del. 318, 328-29 (1960) (nullum tempus does not extend to municipalities); State v. Stuart, 91 N.E. 613, 615 (Ind. 1910) (citing authority for the principle that statutes of limitation run against towns, cities, and counties and upholding application of statute of limitation in action brought for benefit of the county); Bd. of Educ. v. Standhardt, 458 P.2d 795, 801-02 (N.M. 1969) (statutes of limitation will run against county and other political subdivisions, including school districts, unless it is deemed that the State is the real party in interest with respect to the claim); Johnson v. Black, 103 Va. 477, 592 (1905) (“The right expressed in the maxim, ‘Nullum tempus occurrit regi,’ is an attribute of sovereignty, and cannot be invoked by counties or other subdivisions of the State.”); Wash. Rev. Code § 4.16.160 (limitations apply to actions brought in the name of or for the benefit of any county, municipality, or quasimunicipality of the state in the same manner as to actions brought by private parties) cf. Washington Pub. Power Supply v. General Elec. Co., 778 P.2d 1047, 1051 (Wash. 1989) (municipalities are only protected from limitations on actions if the action arises out of exercise of power that stems from the state’s sovereign powers); City of Rochester v. Marcel A. Payeur, Inc., et al., No. 219-2012-CV-550 at 11-18 (N.H. Sup. Ct. Apr. 17, 2015).

9. See, e.g., Architects Group, Inc., 752 So.2d at 491-92.

10. Washington Pub. Power Supply, 778 P.2d at 1053 (concluding that supplying electricity was not part of the sovereign power of the state); State v. LG Elecs., Inc., 185 Wn. App. 123 (2014) (discussing the “for the benefit of the state” language under the state statute and providing examples of “sovereign action,” including “construction and maintenance of public parks, swimming pools, and merry-go-rounds, as well as the power of taxation and the design and construction of educational facilities”) (citations omitted).

11. See, e.g., Miss. Code Ann. § 15-1-51 (Statutes of limitation in civil cases shall not run against the state, or any subdivision or municipal corporations thereof….”); Enroth v. Memorial Hosp. at Gulfport, 566 So.2d 202 (Miss. 1990) (applying nullum tempus’ protections to a community hospital (a creature of statute)); Or. Rev. Stat. Ann. § 12.250 (“[u]nless otherwise made applicable thereto, the limitations prescribed in this chapter shall not apply to actions brought in the name of the state, or any county, or other public corporation therein, or for its benefit.”); City of Medford v. Budge-McHugh Supply Co., 754 P.2d 607 (Ore. 1988) (“The common law rule that statutes of limitations do not apply against government bodies unless they are included expressly or by necessary implication is still in force.”) (citing Or. Rev. Stat. Ann. § 12.250)  cf. State ex rel. Dep’t of Human Servs. v. Broyles, 208 P.3d 519 (Or. 2009) (discussing applicability to state agency of a certain limitations period outside of Chapter 12).

12. Enroth, 566 So.2d 202.

13. Note that in some jurisdictions, this same distinction governs immunity from tort that is afforded to political subdivisions and municipalities.  See Board v. Town of Riverdale, 578 A.2d 207, 210 (Md. 1990)(“With regard to ordinary tort actions, counties and municipalities can rely on the defense of governmental immunity only when they exercise a function categorized as ‘governmental’ rather than ‘proprietary or ‘corporate.’”).

14. See, e.g., Reeves v. City of Phoenix, 400 P.2d 364 (Ariz. App. 1965) (application of nullum tempus turned on whether municipality was acting in a public capacity rather than in a private or proprietary capacity); Portland Water District v. Town of Standish, 2006 ME 104, 905 A.2d 830 (determining that the water district, a statutorily created political subdivision empowered to manage waterworks in a city, was a governmental entity entitled to rely on nullum tempus when it was acting to perform a “uniquely governmental function.”) cf. Inhabitants of the Town of Topsham v. Blondell, 82 Me. 152 (1889) (portion of town’s tax action was time barred on the basis that “[w]hile, in regard to contracts or mere private rights, towns, like private citizens may plead and have pleaded against them the statute of limitations” and “the overwhelming weight of authority holds that municipal corporations, even in their public character, are not so vested with the rights and privileges of sovereignty as to be within the protection of the maxim nullum tempus”); Anne Arundel County v. McCormick, 323 Md. 688 (Md. 1991) (doctrine has more limited effect when the plaintiff is not the state, but a political subdivision; “counties and municipalities can only avoid the bar of such a statute of limitations if the action asserted arises from the exercise of a governmental as distinguished from a proprietary or corporate function.”); Laramie County School Dist. v. Muir, 808 P.2d 797, 801 (Wyo. 1991) (“immunity from the application of statutes of limitations cannot be limited to the state itself … [i]f a local agency is carrying on a function of protecting public rights that citizens receive under our constitution, or is otherwise fulfilling a traditional function of government.”); District of Columbia v. Owens-Corning Fiberglass Co., 572 A.2d 394, 410  (D.C. 1989) (concluding that because the municipality was pursuing a “governmental function,” it could bring an action “even after the statutes of limitations and repose would ordinarily have run”); Bd. of Educ. v. Dow Chem. Co., 482 A.2d 1226, 1228 (Conn. Super. 1984) (limited immunity is afforded to municipalities when they perform governmental and not proprietary duties); State v. Lombardo Bros. Mason Constrs., Inc., 307 Conn. 412, 431-32 (2012) (citing cases); Town of Black Mt. v. Lexon Ins. Co., 768 S.E.2d 302, 307 (N.C. 2014) (issue of running of statute of limitations turns on whether the Town was engaged in a proprietary or governmental function where statute of limitations was silent on its application to the state or its political subdivisions); Fennelly, 728 N.W.2d at 170-71; Kan. Stat. Ann. § 60-521 (“As to any cause of action accruing to the state, any political subdivision, or any other public body, which cause of action arises out of any proprietary function or activity, the limitations prescribed in this article shall apply to actions brought in the name or for the benefit of such public body in the same manner as to actions by private parties …” (exceptions omitted)); State Highway Comm’n v. Steele, 528 P.2d 1242, 1244 (Kan. 1974).

15. Sides v. Cabarrus Memorial Hosp., Inc., 213 S.E.2d 297, 303 (N.C. 1975).  Note that after the Supreme Court in Sides determined that the hospital was an agency of the county, several revisions were made to the pertinent enabling statues, diminishing the ties between the hospital and the county.  See Odom v. Clark, 668 S.E.2d 33, 36 (N.C. 2008).

16. Rhodes v. City of Asheville, 230 N.C. 134, 136-37 (discussing distinction between governmental and proprietary functions in the context of immunity of a municipal corporation from suit).

17. See Kan. Pub. Employees Retirement Sys. v. Reimer & Kroger Assocs., 941 P.2d 1321, 1336 (Kan. 1997) (citing cases).

18. See, e.g., Fennelly, 728 N.W.2d at 170-71.

19. City of Reidsville v. Burton, 269 N.C. 206, 210 (1967).

20. Town of Black Mt., 768 S.E.2d at 307.

21. See, e.g., Jensen v. Fordyce Bath House, 190 S.W.2d 977, 980 (Ark. 1945) (municipality may be defeated by statute of limitations when seeking to enforce a contract right, or some right belonging to it in a proprietary sense).

22. People ex rel. Ill. DOL v. Tri State Tours, Inc., 795 N.E.2d 990, 992-93 (Ill. App. Ct. 2003) (citing Board of Education of City of Chicago v. A. C & S, Inc., 546 N.E.2d 580 (1989); Shelbyville, 451 N.E.2d 874.

23. Delaware Cnty. v. First Union Corp., 929 A.2d 1258, 1261-62 (Pa. 2007) (citation and internal quotation marks omitted).

24. Okla. City Mun. Improvement Auth. v. HTB, Inc., 769 P.2d 131, 134 (Okla. 1988).

25. Id. at 135. 

26. Id.


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