Rep. Andy Welch, D-XXXXX, of Smith , Welch & Webb. (Photo: John Disney/ALM) Rep. Andy Welch, R-McDonough, of Smith Welch Webb & White. (Photo: John Disney/ALM)

After being approved with no dissenting votes by the Georgia House of Representatives and Senate, legislation intended to restore citizens’ ability to challenge the constitutionality of state laws and sue state agencies and officers has once again fallen victim to a governor’s veto.

House Bill 311 was among more than a dozen bills Gov. Brian Kemp axed on Friday, meaning that parties wishing to sue the state are, with a few exceptions, still barred from seeking redress in Georgia courts.

But in vetoing the bill, Kemp seemed open to readdressing more “appropriately tailored” legislation that would “provide pathways for judicial intervention without unduly interfering with the daily operations of the state.”

Similar legislation that also passed both chambers with overwhelming approval was vetoed by Gov. Nathan Deal in 2016, and another effort died in committee last year.  

The author of the vetoed bill, Rep. Andrew Welch, R-McDonough, said he was disappointed with the rejection of  legislation meant to roll back a series of Georgia Supreme Court rulings making it nearly impossible to challenge the state in court.

But Welch, who announced during the session that he would likely resign from office before year’s end, said he may instead stay on to try once again to craft a solution to what he sees as a serious problem with Georgia law.   

“The governor’s veto has given me pause,” said Welch, a partner with McDonough’s Smith Welch Webb & White.

“The right of the citizens of Georgia to sue their government for constitutional and statutory transgressions is a fundamental in the founding of our state,” said Welch. “I respect our governor, but I disagree with the conclusions he stated in his veto.”

“I met with the governor about this bill during the session and offered his staff the opportunity to comment on the bill and notify us of any changes they wanted. I didn’t receive any input,” said Welch.

The lawmaker said he hopes the governor’s staff will help craft new legislation that would again allow citizens to seek redress in court and still survive gubernatorial scrutiny.  

Welch said a study by the House Research Office indicated that Georgia was one of a handful of states that did not have a statutory mechanism to allow suits for constitutional claims, declaratory judgment or injunctive relief to be lodged against the government or its officials.

Until relatively recently, such actions could be filed in Georgia, but a series of decisions by the state Supreme Court steadily narrowed those rights beginning in 2014 with Georgia Department of Natural Resources v. Center for Sustainable Coast , 294 Ga. 593, which overturned years of precedent in declaring that state agencies and officials are not subject to petitions seeking injunctive relief.

The high court ruled in Olvera v. Univ. System of Ga. Board of Regents, 298 Ga. 425 in 2016 that declaratory judgment petitions against the state are also barred.

And in 2017’s Lathrop v. Deal, 301 Ga. 408, the court said that even suits challenging the basic constitutionality of a law are also void, unless specifically allowed by the Legislature, and that only suits against state officers in their individual capacities could go forward.

HB 311 would have waived initial sovereign immunity for petitions seeking injunctive or declaratory relief against state agencies, officials and local governments accused of violating state statutes or those challenging the constitutionality of any statute.

It would not have provided for any actions seeking money damages or attorney fees other than those already permitted under the Georgia Tort Claims Act.

The legislation was not opposed by many powerful interests at the Statehouse, including the Prosecuting Attorneys Council and organizations representing state and county governments.

But the Southern Center for Human Rights had expressed reservations with some portions, arguing among other things that it extended sovereign immunity to state agencies and officers sued by people in penal institutions or mental health facilities.

In his veto message Kemp picked up on that point, saying that it “bars claims against the state by individuals in a state mental health facility.”

Welch said that any such concerns could have been remedied easily, if the bill had been signed into law.

“People in mental institutions can’t sue now,” he said. “Neither the bill nor veto changes that, but if the executive branch thinks it important for people in mental health facilities to be able to sue, the legislature could consider that simple change next session.

“In the meantime,” said Welch, “had the bill been signed, every other citizen of this state would have been able to sue their local and state governments for relief from violations of constitutional and statutory rights.  With the veto, the courts of our state remain closed to nearly all of those petitions.”

Southern Center Executive Director Sara Totonchi declined to discuss the governor’s veto.