ATLANTA - Even as Georgia lawmakers are inviting voters to weaken the state’s protection against being sued, the state Supreme Court is saying that protection is not as absolute as some make it out to be.
The unanimous decision was released Monday in a suit by Lowndes County against the commissioner and board members of the Department of Community Affairs. The department said in 2016 that the south Georgia county would be ineligible for state grants, loans or permits because it hadn’t reached a new agreement with Valdosta and other Lowndes County cities on how to deliver services. Such a service delivery agreement is required by state law.
The county sued the cities, the commissioner and board members, claiming an earlier agreement was still in effect and that the department couldn’t cut the county off. The state officials claimed they couldn’t be sued under Georgia’s sovereign immunity doctrine.
The suit is timely because state lawmakers have been arguing that the doctrine currently blocks citizens from suing governments who have done something improper. They passed two bills to broaden the grounds for suits, but governors have been opposed to letting their agencies be dragged into court. Gov. Nathan Deal vetoed the first measure in 2016 and Gov. Brian Kemp vetoed the second measure last year. This year, lawmakers put a constitutional amendment on the November ballot that would allow some lawsuits, in a move Kemp couldn’t veto.
If voters approve, citizens could sue governments for illegal acts, but judges couldn’t enter an injunction ordering a government to do something. It also wouldn’t allow a judge to award money damages, attorney’s fees or court costs at the end of a successful lawsuit. The General Assembly could later choose to provide for court orders and damages by law, without needing another constitutional amendment.
Sovereign immunity came from English law, commonly described as “the king can do no wrong.” When Georgia overthrew the king in 1776, that cloak of legal protection transferred to the state government. But it didn’t become an issue in Georgia until 2014. That’s when the state Supreme Court reinterpreted a 1991 constitutional amendment to say state and local governments can only be sued when they waive sovereign immunity.
A trial court and the Georgia Court of Appeals had ruled against Lowndes County in this lawsuit, but Justice Nels Peterson, wrote that those decisions ignored that the Georgia Supreme Court has “repeatedly made clear that sovereign immunity does not bar suits for injunctive and declarative relief against state officials in their individual capacities.”
Peterson, writing for the court, said that state officials only can’t be sued when the plaintiff seeks to take the state’s property or tamper with state contracts. Peterson wrote that if the doctrine was broader, the state could be wholly immune from lawsuits because “any injunction or declaration as to an employee or official of the state could be said to ‘control the actions of the state’ to some extent.”
Justices aren’t saying, though, how they think the amendment would alter the law if voters approve. In a footnote, Peterson wrote that “we express no opinion about the proper answer to the sovereign immunity questions answered today in the event the proposed amendment becomes effective.”