“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?”

(X) YES 

(   ) NO

Among the amendments on the November 3rd Georgia ballot is the above— getting rid of the legal doctrine of sovereign immunity in our State’s Constitution. This doctrine allows municipalities, counties and the state and its agencies to violate state law without any accountability. It means these entities cannot be sued by citizens, groups or organizations for violating Georgia laws because sovereign immunity prevents these groups from having legal standing to sue.

Interestingly, Georgia adopted the statutes and common law of England in 1784, including adopting sovereign immunity (the sovereign “King” is always right). But that was then, and this is now.

 Two hundred and thirty-five years later Georgia’s Legislature unanimously passed House Bill 311, which would have waived sovereign immunity and provide for declaratory and injunctive relief in some cases. Yet Gov. Brian Kemp vetoed the bill on May 10, 2019.

Some (perhaps the governor) have been concerned about the use of lawsuits against cities and counties if the defense of sovereign immunity is removed as proposed in the Nov. 3 constitutional amendment. Some fear that if the sovereign immunity were to be removed that law enforcement officers could be sued.

Marietta attorney Martin O’Toole, CEO of The Veterans Memorial Coalition, has written a memo clearing up these misunderstandings and clarifying what the amendment would do. “Police officers,” he notes, “already can be and are sued under federal law. See 42 U.S.C. § 1983, the descendant of the 1871 Civil Rights Act. Police, sheriffs, deputies, and other law enforcement and even other government officials, enjoy what is called ‘qualified immunity.’ This is not the same as sovereign immunity.”

In short, O’Toole continues, “a government official (and let us say police for simplicity) must violate an easily understood constitutional principle before being able to be sued. This divides into two sub-sections: discretionary acts and ministerial acts. If a police officer acts in a manner that does involve his judgement, he cannot be held liable. In other words, the courts will not second guess the officer’s decision made in the heat of the moment absent a gross violation of constitutional rights. The officer will be given leeway to use his best judgment.”

“If a government official refuses to perform a mandated duty– such as refusing to issue a qualified person a driver’s license for no valid reason– that is not a protected act. This is considered a ministerial duty. The courts give great deference to the officer’s decisions when his judgment is involved. There is no deference given to a mandated, ministerial duty to perform a task,” he says.

It is argued by some scholars that qualified immunity (the immunity police officers enjoy) is derived from sovereign immunity, but the cases seem to be decided on completely different grounds, the attorney further says.

“The present attack on police in the United States Congress is an attack on qualified immunity as such. I have not seen any indication that the lovers of a powerful, central state want to repeal sovereign immunity and open the courthouses to ordinary citizens,” O’Toole concludes. “They are content with stripping qualified immunity from police as part of the plan to destroy local police so we can have a national police force. Then I would expect that qualified immunity would return. Maybe even absolute immunity would be invoked.”

Let’s conclude with a final irony. When the governor– having last year vetoed the sovereign immunity statutory repeal– wanted this year to stop the restrictive face mask measures applied by Atlanta Mayor Keisha Lance Bottoms, he retreated. Lawyers told him that sovereign immunity protected Atlanta from the state of Georgia!

Take note that both the state House of Representatives and the state Senate last year voted unanimously to pass the proposed constitutional Amendment.  But then there was that Kemp veto. Now the people of Georgia have a chance to have their say on the November ballot.

 

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