A question on the November ballot will ask voters whether governments should be stripped of a protection that prevents legal challenges questioning the constitutionality of laws. Getty Images

By Stanley Dunlap | Georgia Recorder | July 27, 2020

A lengthy legal battle over a controversial 2012 abortion law between the state of Georgia and a few physicians reached the state’s highest court in 2017, but the doctors’ objections to the law banning abortion after 20 weeks were never heard.

The state Supreme Court upheld a lower court’s decision that then-Gov. Nathan Deal and the state were protected by what’s known as sovereign immunity. The government, the court ruled then, must first agree to be sued in state court before someone can challenge the constitutionality of a law. 

“Simply put, the constitutional doctrine of sovereign immunity forbids our courts to entertain a lawsuit against the State without its consent,” Justice Keith Blackwell wrote at the time. 

This November, Georgians will finally decide at the ballot box whether that should change. A constitutional amendment – one of two on the ballot – would open up state courts to those who want to challenge the constitutionality of state and local laws. Legislators had tried without success to make the change in the past, only for two different governors to veto those attempts. 

Lawmakers, though, were able to circumvent the governor’s office this year by pushing the change through as a constitutional amendment that puts the question in voters’ hands.  A constitutional amendment cannot be vetoed. 

The 2017 Lathrop vs. Deal ruling gave the state and local governments more latitude to use sovereign immunity as a defense against lawsuits and left the federal court as the best option to fight back in some instances. For example, physicians and abortion providers are currently challenging a 2019 abortion law in federal court.

The American Civil Liberties Union of Georgia, which represented the three physicians in the Deal lawsuit, says state and local governments should be held accountable for the laws they pass.

The doctors argued in the 2012 lawsuit that a then-new Georgia law banning abortions after 20 weeks violated the Fourth Amendment right to privacy. The Supreme Court said the state was shielded from the lawsuit because of sovereign immunity. 

“So-called ‘sovereign immunity’ allows the government to trample on Georgians’ constitutional rights with reckless abandon,” said Sean J. Young, legal director of the ACLU of Georgia. “When the state violates Georgians’ constitutional rights, courts must be able to step in and remedy that violation.” 

The Deal lawsuit was one of several court cases that prompted a bipartisan group of legislators to push for legislation putting an end to the barrier.

Despite getting nearly universal support in both legislative chambers, it was twice struck down by a governor’s veto because of arguments that lawsuits would stifle a government’s ability to function.

Kemp noted in 2019 that the public can already take legal action against state officers and employees for breach of contract and some tort claims.

November’s ballot question will ask voters if the state constitution should be changed to put aside sovereign immunity when a legal challenge questions whether a government has exceeded its authority.

Georgians must have the legal recourse for their lawsuit “to be considered by a judge if they feel the government committed an unconstitutional act,” said Rep. Chuck Efstration, a Dacula Republican and co-sponsor of the measure.

If voters waive sovereign immunity, Georgians can file a lawsuit asking a judge to issue a declaratory judgment on whether the state or local government is violating a particular law. No monetary damages will be awarded if the judge rules in the resident’s favor. 

Since the state of Georgia can already be sued in federal court for violating federal constitutional rights, it’s only right that state superior court judges be allowed to hear claims that state or local laws violate a person’s rights, said House Minority Leaders Rep. Bob Trammell, who is a sponsor of the resolution.

“If you ask most people where they would go to seek redress if the government aggrieved them, the logical answer they would give you is ‘court,’” said Trammell, a Luthersville Democrat who is also an attorney. 

“This measure simply seeks to make sure that they have the keys to the courthouse, and that the door is open,” he said.

The law of sovereign immunity dates back centuries. 

“The king can do no wrong so the king can only be sued when the king says he can be sued,” said Atlanta attorney Scott Cahalan, who specializes in construction law and government procurement.

Tossing out sovereign immunity in these cases speeds up the process of reviewing a constitutional statute, Cahalan said.

“It’s much faster than if you have to wait until somebody has been harmed by it,” he said.

A rash of overzealous lawsuits isn’t likely to become a problem should voters back the constitutional amendment, said Rusi Patel, general counsel for the Georgia Municipal Association, which represents the state’s 538 cities.

“If cities or counties are not following the written law, then there should be recourse,” he said.