The Georgia General Assembly is once again moving forward with legislation aimed at restoring citizens’ ability to challenge the constitutionality of state laws and bring suit against state agencies and actors.
Similar bills have not fared well at the Capitol in years past: One bill resoundingly approved by both chambers died when former Gov. Nathan Deal vetoed it, and another effort died in committee during the last session. The goal is to undo the effects of several state Supreme Court rulings in recent years that have made sovereign immunity a nearly unscalable barrier for anyone attempting to sue the state.
Introducing the newest effort, which passed the House last week in a near-unanimous vote, Rep. Andrew Welch, R-McDonough, told the Senate Judiciary Committee that the earlier versions were deemed too broad or too narrow.
“We hope this one is the ‘Goldilocks’ version that got it just right,” said Welch, a partner with Smith Welch Webb & White.
Welch briefly recounted the series of high court rulings that he said “closed the courthouse doors” to Georgians seeking redress, starting with 2014’s Georgia Department of Natural Resources v. Center for Sustainable Coast, 294 Ga. 593, which overturned years of prior court precedent in ruling that state agencies and officials were not subject to petitions seeking injunctive relief.
The justices extended that immunity in 2016 to suits for declaratory relief in Olvera v. Univ. System of Ga. Board of Regents, 298 Ga. 425.
The final nail was 2017’s Lathrop v. Deal, 301 Ga. 408, in which the high court ruled that suits challenging the constitutionality of a law are barred unless specifically allowed by the Legislature and that only suits against state officers in their individual capacities could go forward.
“How repugnant to a democracy is it that we sit here as public officials and our citizens have no fundamental right to challenge the constitutionality of our laws?” Welch asked.
HB 311 was co-sponsored by a bipartisan group of representatives including Rules Committee Chairman Jay Powell, R-Camilla; Non-Civil Judiciary Committee Chairman Chuck Efstration, R-Dacula; and Reps. Josh McLaurin, D-Sandy Springs, and Mary Margaret Oliver, D-Decatur.
The legislation would waive sovereign immunity for petitions seeking injunctive or declaratory relief against state agencies and actors accused of violating state statutes or those challenging the constitutionality of any statute.
It would not provide any actions seeking money damages other than such actions permitted under the Georgia Tort Claims Act.
Representatives from the Georgia Municipal Association and the Association County Commission said they had problems with the bill, and a staff member of the Prosecuting Attorneys Council said their only change would be to make sure prosecutors are included in a list already shielded by sovereign immunity including judges, grand jurors and elected officials.
Georgia Trial Lawyers Association legislative affairs director Bill Clark said the bill is “as fundamental as it gets.”
“As legislators, y’all hold the keys to the courthouse doors,” Clark said. “This is your opportunity to open those doors to the public.”
Aaron Littman of the Southern Center for Human Rights said the organization is concerned that some of the bill’s language will actually make it harder to bring damage claims against officers and employees of political subdivisions sued in their individual capacities.
A memo from the Southern Center said that, unlike state officers who can be sued under the Tort Claims Act, the new bill will offer “blanket protection” for local officers unless language is added creating a similar avenue for redress.
Littman also took issue with current language in the bill extending sovereign immunity to state agencies and actors sued by people in penal institutions or mental health facilities.
“This would bar prisoners and mental health patients from filing injunctions challenging the conditions of their confinement,” Littman said.
Wednesday’s session was for information only, and Judiciary Chair Jesse Stone, R-Waynesboro, appointed a subcommittee to consider the legislation.