Tuesday, May 20, 2008, 12:26 PM

COA limits implied waiver of sovereign immunity afforded by Corum v. UNC

Today, in Petroleum Traders Corp. v. State, the Court of Appeals limited the waiver of sovereign immunity afforded by Corum v. University of North Carolina to claims arising under Article I of the N.C. Constitution, the Declaration of Rights.

An Indiana company that sold oil to the state and its entities sued the state, complaining about the 1.75% fee that was tacked onto its bids ostensibly to help pay for the state's mandatory "E-Procurement" online bidding system. The plaintiff brought several claims, including a claim for declaratory relief that the fee was really a tax, unconstitutional under Article II because not passed by the legislature, and a claim for refund of such taxes already paid. The state moved to dismiss those claims, arguing sovereign immunity. The Superior Court rejected the state's argument.

The Court of Appeals reversed. After noting that there was no express or statutory waiver of sovereign immunity, the Court of Appeals turned to whether the implied waiver affored by Corum v. University of North Carolina applied to a claim under Article II of the state constitution. After examining Corum and its progeny, the Court concluded that it did not - Corum applies only to claims under Article I, the Declaration of Rights that, for the most part, creates personal rights.

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