Earlier this month, we published a blog post regarding attempts on the federal level to end the defense of qualified immunity, which is a judicially created legal doctrine that shields police officers from liability for money damages from lawsuits alleging constitutional violations.  This blog post discusses another type of immunity that comes into play in these types of suits, sovereign immunity.  

In November, Georgia voters will have the chance to amend the state constitution to waive sovereign immunity in limited situations.  If the constitutional amendment is passed by a majority of voters, people will be able to bring a lawsuit to seek declaratory and equitable relief against state and local governments for acts that are “outside the scope of lawful authority or in violation of the laws or the Constitution of this state or the Constitution of the United States.”  Such cases could be brought regarding “past, current, or prospective acts which occur on or after January 1, 2021.”

According to the 2017 Final Report of the State of Georgia Court Reform Council, the “doctrine of sovereign immunity traditionally embodies the proposition that the State “[can]not, without its own express consent, be subjected to an action of any kind.  Although sovereign immunity is commonly understood to protect primarily the ‘public purse,’ the doctrine at common law also barred suits against the State that did not seek money damages, such as those for injunctive or other equitable relief.”

In June 2017, in Lathrop v. Deal, the Supreme Court of Georgia considered whether “sovereign immunity extends to claims for injunctive or declaratory relief that rest upon constitutional grounds.”  The plaintiffs in Lathrop sought a declaratory judgment that certain provisions of legislation were unconstitutional and therefore the plaintiffs also sought injunctive relief that would restrain state officers from enforcing the legislation.  In affirming the trial court’s dismissal of the case, the Supreme Court held that “the doctrine of sovereign immunity extends generally to suits against the State, its departments and agencies, and its officers in their official capacities for injunctive and declaratory relief from official acts that are alleged to be unconstitutional.”

In the last several years, the Georgia General Assembly twice has passed legislation to allow people and entities to sue state and local governments and obtain declaratory and injunctive relief.  Both times, however, legislation that passed the House and Senate has been vetoed by the Governor.  

This year, the Georgia House of Representatives and State Senate passed House Resolution 1023, which provides for voters to decide whether to amend the state constitution to waive sovereign immunity in limited circumstances and allow suits to be brought seeking declaratory and equitable relief against state and local governments.  Because the House and Senate passed a resolution (rather than a bill), the resolution does not go before the Governor to sign or veto.  

The text of the House Resolution 1023 can be found hereWhen voters go to the polls for the General Election this November, they will see a ballot question that asks, “Shall the Constitution of Georgia be amended to waive sovereign immunity and allow the people of Georgia to petition the superior court for relief from governmental acts done outside the scope of lawful authority or which violate the laws of this state, the Constitution of Georgia, or the Constitution of the United States?”

1. Report available here: https://law.georgia.gov/document/publication/final-reportcourt-reform-councilpdf/download (p. 27).
2. 301 Ga. 408 (2017).