Georgia Supreme Court Upholds State Sovereign Immunity in Principle; Effect Remains Unclear


Following Governor Nathan Deal’s veto of a 2016 bill that, if signed, would have authorized prospective suits challenging the constitutionally of states or local laws, the Georgia Supreme Court affirmed a trial court ruling that in effect bars the sort of suits the 2016 bill would have authorized. Generally, state governments, departments, agencies and officers acting in their official capacity are protected from prospective legal action by the doctrine of sovereign immunity. However, when state officials act under an unconstitutional statute, they can be held individually liable, even for acts done in their official capacity. The rationale underlying this theory of personal liability for state officials is as follows: an act or statute that is unconstitutional confers no lawful authority upon an officer; so an official act performed pursuant to an unconstitutional statute is the equivalent of an official act performed in the absence of a statute altogether.  Thus, where a state official performs an official function, even where he may believe he is acting pursuant to a lawfully enacted statute, he may nonetheless be held liable for those acts if the statute turns out to be unconstitutional.

Interestingly, the opinion thoroughly examines the doctrine of sovereign immunity, but concludes with the assertion that a plaintiff need only bring suit against state officials in their individual capacity, rather than their official capacities. But, even where state officials have been found individually liable for monetary damages, “the legislature should, and doubtless will, reimburse the defendant . . .” Through this opinion, the Georgia Supreme Court re-affirms a somewhat bizarre legal fiction; while the state cannot be named as a party to a constitutional challenge, it will likely still be on the hook for the monetary damages imposed on state officials for actions taken in the course of the performance of their official duties.

The opinion denied injunctive relief to several physicians who challenged, under the State Constitution, an abortion statute requiring physicians who perform abortions to file a report of the procedure with the Department of Public Health, and a clause that imposes criminal penalties to violations of other statutory requirements. So, in the case of these physicians, they need only re-file against the state officials within the Department of Public Health in their individual capacity, and allege state constitutional violations. Then, if the court finds that the statute was in fact unconstitutional, the plaintiff-physicians would be awarded either prospective or retrospective relief, depending on the nature of the action. Importantly, the opinion does not wholly eliminate individual citizens’ ability to challenge state action on a constitutional basis; it simply modifies the avenue through which such challenges must travel.

The doctrine of sovereign immunity will likely continue to evolve in the near future, as the Supreme Court also seems to be interested in the matter. In his concurring opinion in Ziglar v. Abbasi, Justice Thomas argued “[i]n an appropriate case, we should reconsider our qualified immunity jurisprudence.” While qualified immunity is an entirely different doctrine altogether, Justice Thomas’ declared interest in the area of immunity will only further fan the flames of the immunity debate.

Finally, the aspect of the ruling in which state officials should be most interested is the shifting of the burden of defending such lawsuits. The opinion fails to acknowledge the fact that because plaintiffs’ only course of challenging state action under the state constitution is against state officials individually, the state officials must bear the fiscal burden of hiring an attorney to essentially defend a decision made by the legislature. From the perspective of a state official, this seems patently unfair and unjust. The nearly century old case mentioned in the opinion (Dennison Manufacturing Co. v. Wright, 156 Ga. 789 (1923)) only notes reimbursement to the defendant “should there be any recover against” him. While it fails to mention the allocation of attorney’s fees, the legislature will presumably foot the bill for legal representation. But, if recovery is granted in a plaintiff’s favor, the cost of the damages and representation will be born by the State and the enforcement of the unconstitutional statute will be against the State. So, while the opinion upholds direct sovereign immunity, it impliedly authorizes a form of indirect sovereign liability, as the State will (presumably) bear the costs of a ruling against a state official in his individual capacity.  Unfortunately for the state officials, the opinion explicitly invites suits against them, and with the State acting as the guarantor for any judgments awarded, plaintiffs will have no cause for concern about the defendant’s ability to pay the judgment.

Please note that the Law Offices of Kevin C. Ford is currently accepting Georgia Tort Claims Act cases throughout Georgia. If you or a loved one has been injured as the result of the tortious conduct of a state employee, then please contact me immediately, as time if of the essence and crucial information and evidence needs to be secured as soon as possible.


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