Georgians Overwhelmingly Approve Constitutional Amendment Waiving Sovereign Immunity

Leading up to the recent elections, we explained the three constitutional amendments that Georgia voters would be asked to decide.  All three amendments passed.  In particular, nearly 80% of Georgia’s voters approved amending Georgia’s constitution to waive sovereign immunity, overturning a deeply ingrained judicial doctrine that prevented Georgia’s state courts from hearing constitutional challenges to its own state’s laws.  As Justice Keith Blackwell explained, “the constitutional doctrine of sovereign immunity forbids our courts to entertain a lawsuit against the State without its consent.”  Until now, the State of Georgia had to agree to be sued in state court before someone could challenge the constitutionality of a state law.  In fact, Georgia was the only state in the country where state courts were stripped of the power to declare a state law unconstitutional or not.  Georgians were forced to challenge Georgia laws in federal court, without the option to do so in their own state courts.

Recognizing the need to remedy the issue, twice state lawmakers passed bills that would have waived sovereign immunity, only to be vetoed by Governor Deal in 2016 and Governor Kemp in 2019. By placing the issue on the ballot as a constitutional amendment, lawmakers were able to remove the threat of veto because constitutional amendments cannot be vetoed.

Now that voters have amended the state constitution to waive sovereign immunity, Georgians can turn to their own state’s courts to challenge Georgia law.  The amendment allows people to seek declaratory and equitable relief against state and local governments for acts that are “outside the scope of lawful authority or in violation of the laws or the Constitution of this state or the Constitution of the United States.”  The law does not authorize lawsuits against the state and county for money; rather, it authorizes lawsuits against the state and counties in order to declare laws to be unconstitutional and to enjoin their enforcement.  Time will tell how litigants will use this new law to seek redress in Georgia courts.

Chilivis Grubman attorneys have experiencing litigating in both state and federal courts on a variety of issues.  Please contact us today to discuss your legal needs.