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On Monday, January 23, the Georgia Supreme Court heard oral argument on the issue of when a citizen of Georgia can sue the State for a violation of the Georgia Constitution.  In Lathrop v. Deal, several doctors, represented by the National ACLU, sued that State claiming that a Georgia statute violates the right to privacy protected by the Bill of Rights in the Georgia Constitution.

The State of Georgia has claimed that sovereign immunity prohibits an individual from bringing such a lawsuit against the State.

Don Samuel, attorney for the ACLU, told the Georgia Supreme Court that the “Georgia judiciary’s guardianship of the State Constitution, and in particular the Bill of Rights, provides the only guaranteed protection that the citizens have against acts of the Legislature that violate the Bill of Rights.”

The State’s position that citizens cannot sue the State to enforce their Constitutional rights “deprives citizens of the protection of the Bill of Rights.  This is an astounding proposition.  It would single out Georgia as the only state in this country where the Bill of Rights is subservient to the whims of the Legislature.”

In response to the State’s suggestion that the constitutionality of a statute could be raised in defense of an enforcement action, Samuel told the Court that it would be “demonic” to require an individual to violate a statute, risking criminal charges, in order to challenge the constitutionality of a statute.

It is implicit in the guarantee of the Bill of Rights that a person has the right to go to court to protect their constitutional rights.  “Rights protected by the Georgia Constitution become meaningless if you can never go to court to enforce them.”

According to the State, an individual can protect their Constitutional rights by getting indicted; seeking a waiver of sovereign immunity from the Legislature that passed the unconstitutional law; or going to federal court to try to enforce state rights.

Samuel concluded oral argument by telling the Court that “The only thing the State has not said is if you don’t like it just leave Georgia – because this is the only State in which the Bill of Rights will no longer be enforceable in the courts of our State.”

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