Georgia’s Sovereign Immunity Amendment- Good, Bad & Ugly

Georgia Amendment 2

“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?”

( ) YES

( ) NO

Georgia citizens should absolutely have the ability the sue state and local governments for violating the United States Constitution, the Georgia Constitution or state law. I don’t believe this constitutional amendment is the proper way to provide that option.

On its surface, this amendment seems straightforward enough, and but when you dig down, a number of red flags pop up. Although this amendment specifically prohibits any type of monetary award, including attorney fees, and also specifies that any suit naming an individual, officer or other entity not authorized, there’s a caveat. The act states, “4) No damages, attorney’s fees, or costs of litigation shall be awarded in an action filed pursuant to this Paragraph, unless specifically authorized by Act of the General Assembly.”

Previous legislatures passed waiver of sovereign immunity bills on two different occasions. Those bills were vetoed by two different governors, indicating they saw the potential for problems. This year, the legislature took a different approach with a constitutional amendment, an end run around the governor because an amendment can’t be vetoed.

A constitutional amendment is also more difficult to repeal or modify than a legislative bill, consequently, if the proposed amendment passes, the courts could well become clogged with lawsuits that aren’t necessarily frivolous, but motivated by reasons other than putting an end to governmental abuse.

Although the amendment prohibits lawsuits filed against state and local governments from naming individuals, it does not stipulate that a declaratory judgment against a government entity cannot be used as evidence in a subsequent lawsuit against an individual.  It might seem obvious that the amendment’s prohibition against naming individuals would not allow a verdict against the state or local government be used in a subsequent suit against an individual, but there are no assurances.

Georgia has many good judges, but it also has a lot of poor ones. I’ve been in courtrooms where the judge did not seem to have a clue about important aspects of the case in front of him. In one instance, during a trial involving a municipal government, the judge did not understand the priority that a city charter has over a code of ordinances. On numerous occasions, he asked for assistance from attorneys on both sides in open court.

Without additional safeguards written into the amendment to prevent abuse and unintended consequences, a “no” vote is appropriate.