As it now stands, no one can ask a state court judge to overturn a law that is blatantly illegal or clearly unconstitutional, such as a law that bars gun ownership or bans interracial marriage.
But state lawmakers are now moving to permit lawsuits that challenge whether a statute is unconstitutional. It would allow limited waivers to the legal doctrine of sovereign immunity, rooted in the centuries-old English principle that "the king can do no wrong."
The doctrine, embedded in the state Constitution, protects governments from being sued without their consent.
House Bill 674 would remove that requirement. It is expected to have the support of Gov. Nathan Deal, who vetoed similar legislation two years ago. During a luncheon address this week before the Federalist Society, Deal appeared to be receptive to the changes. He said a court reform council he created had recommended measures similar to those proposed in the recently introduced legislation.
“We believe all of those provisions are practical,” the governor said. “We believe it’s time we address this.”
A spokeswoman for the governor said later that Deal had not yet reviewed the legislation and has not endorsed or rejected it yet.
HB 674's chief sponsor, Rep. Wendell Willard, R-Sandy Springs, was pleased to hear that his bill might have the governor's support this session.
“I don’t know the reasons behind his previous veto, but he recognizes something needs to be done to address this,” said Willard, who chairs the House Judiciary Committee. “There are businesses and individuals who should be able to ask our courts to do something if they are being harmed by an unconstitutional law or a government or government official who is not following the law.”
If the legislation doesn’t pass, “Judges must continue saying, ‘Sorry, we can’t do anything about this,’” Willard said.
The doctrine of sovereign immunity bars lawsuits against governmental officers, such as a governor, attorney general or county commissioner. It does not bar litigants from suing these people individually — not in their official capacity — to challenge their ability to follow or enforce a law that is alleged to be unconstitutional. This, however, creates practical problems during litigation. If a government official who is sued individually leaves office, litigants must then re-file their lawsuits against the new officeholder.
On Tuesday, Deal indicated he would prefer not to be sued personally in such cases, perhaps explaining his change of heart. As for being sued individually, he said, “I would hope all of you think that is not a very good long-term solution to this issue.”
No damages and no attorney fees
If enacted, HB 674 would enable state court judges to decide whether a contested law should be declared invalid. It would also enable judges to issue injunctions, stopping government officials from implementing unfair laws and carrying out illegal practices. But it would not allow litigants to seek monetary damages or attorneys’ fees.
John Monroe, who represents GeorgiaCarry.Org and challenges firearms restrictions, called the legislation a step in the right direction. But the costs of litigation should not have to be borne by “a party aggrieved by the state,” he said.
Last year, the Georgia Supreme Court upheld the principles of sovereign immunity in a challenge to the state's "fetal pain" law, which allows felony prosecutions of doctors who perform abortions after the 20-week pregnancy threshold. Three OB-GYN doctors challenged the law unsuccessfully, saying it violates the state's constitutional right to privacy.
Nonprofits with profoundly divergent interests — the Southern Center for Human Rights, GeorgiaCarry.Org, the Goldwater Institute and the Anti-Defamation League — supported the doctors’ position in a brief filed before the state high court.
But the Supreme Court ruled that citizens may not sue a state or local government without the government’s permission. Under HB 674, anyone could file an action in state court against a government without first receiving the go-ahead from the government.
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