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Lathrop v. Deal

Supreme Court of Georgia

June 19, 2017

LATHROP et al.
v.
DEAL et al.

          Blackwell, Justice.

         Simply put, the constitutional doctrine of sovereign immunity forbids our courts to entertain a lawsuit against the State without its consent. In Georgia Dept. of Natural Resources v. Center for a Sustainable Coast, 294 Ga. 593, 602 (2) (755 S.E.2d 184) (2014), we held that the doctrine extends to suits for injunctive relief, and in Olvera v. University System of Ga. Board of Regents, 298 Ga. 425, 428 n.4 (782 S.E.2d 436) (2016), we held that it likewise extends to suits for declaratory relief. But those decisions involved no constitutional claims, and since Sustainable Coast, we have not had occasion to consider whether the doctrine of sovereign immunity extends to claims for injunctive or declaratory relief that rest upon constitutional grounds. See State of Ga. v. Intl. Keystone Knights of the Ku Klux Klan, 299 Ga. 392, 395 n.11 (1) (788 S.E.2d 455) (2016). In this case, we are confronted squarely with that question. We hold today that the doctrine of sovereign immunity extends generally to suits against the State, its departments and agencies, and its officers in their official capacities for injunctive and declaratory relief from official acts that are alleged to be unconstitutional. In so holding, however, we recognize the availability of other means by which aggrieved citizens may obtain relief from unconstitutional acts, including prospective relief from the threatened enforcement of unconstitutional laws.

         I.

          This case began in 2012, not long after the adoption of House Bill 954, [1]which concerns medical procedures for the termination of pregnancies. Among other things, House Bill 954 requires a physician in most circumstances to ascertain the "probable gestational age of the unborn child" before performing an abortion, [2] see Ga. L. 2012, p. 575, § 3 (codified at OCGA § 31-9B-2), and it forbids a physician to perform an abortion when the probable gestational age has been determined to be 20 weeks or more, unless the pregnancy is "medically futile" or the abortion is necessary to "[a]vert the death of the pregnant woman, " "avert [a] serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman, " or "[p]reserve the life of an unborn child." See Ga. L. 2012, p. 575, § 2 (codified at OCGA § 16-12-141 (c) (1)). In the limited circumstances in which an abortion is permissible notwithstanding a determination that the probable gestational age is 20 weeks or more, a physician must perform the abortion by means that offer "the best opportunity for the unborn child to survive, " unless those means would pose an increased risk to the woman undergoing the procedure of "death [or] substantial and irreversible physical impairment of a major bodily function." See Ga. L. 2012, p. 575, § 2 (codified at OCGA § 16-12-141 (c) (2)). House Bill 954 provides that, after an abortion or attempted abortion, a physician must file a report of the procedure with the Department of Public Health, see Ga. L. 2012, p. 575, § 3 (codified at OCGA § 31-9B-3 (a)), and it preserves preexisting law that makes hospital and licensed health facility records concerning abortion procedures available to a district attorney.[3] See Ga. L. 2012, p. 575, § 2 (codified at OCGA § 16-12-141 (d)). Except as permitted by statutory law (including House Bill 954), the performance of an abortion is a felony. See Ga. L. 2012, p. 575, § 2 (codified at OCGA § 16-12-140).

         Eva Lathrop, Carrie Cwiak, and Lisa Haddad are physicians licensed to practice in Georgia. They practice in the fields of obstetrics and gynecology, and as a part of their practice, they sometimes perform abortions. In November 2012, just weeks before House Bill 954 became generally effective, [4] they filed a petition in the Superior Court of Fulton County against Governor Nathan Deal and nineteen other state officers in their official capacities.[5] In their petition, the plaintiff-physicians alleged that House Bill 954 violates the state constitution in several respects.[6] First, they said, the limitations of the circumstances in which an abortion may be performed and the means by which certain abortions may be performed violate their patients' constitutional right of privacy, as guaranteed by the Due Process Clause of the Constitution of 1983 (Art. I, Sec. I, Par. I), the Freedom of Conscience Clause (Art. I, Sec. I, Par. III), and the Inherent Rights Clause (Art. I, Sec. I, Par. XXIX). Second, the preservation of preexisting law that makes abortion records accessible by a district attorney, they alleged, violates their patients' right of privacy, as well as the Equal Protection Clause of the Constitution of 1983 (Art. I, Sec. I, Par. II). Finally, House Bill 954 violates the Due Process Clause, they claimed, because it attaches criminal penalties to violations of statutory requirements that are vague and uncertain. Based on these allegations, the plaintiff-physicians sought a declaratory judgment that certain provisions of House Bill 954 are unconstitutional, and they sought injunctive relief to restrain the defendant-state officers from enforcing House Bill 954.

         For the next year or so, the parties litigated various issues relating to the merits of the petition.[7] Then, in February 2014, we issued our decision in Sustainable Coast. Soon thereafter, the defendant-state officers filed a motion to dismiss, asserting that the claims against them in their official capacities for declaratory and injunctive relief amount to claims against the State itself, and under Sustainable Coast, those claims are barred by the doctrine of sovereign immunity. The plaintiff-physicians responded that Sustainable Coast did not involve constitutional claims, and they urged that claims for declaratory and injunctive relief from state action that is alleged to be unconstitutional are not barred by sovereign immunity. In October 2015, the trial court granted the motion to dismiss, and the plaintiff-physicians appeal from the dismissal of their petition.[8]

         II.

         A.

         The doctrine of sovereign immunity has been a part of our law for more than 230 years. By the time of the War for American Independence, the doctrine was "imbedded in the common law of England." Crowder v. Ga. Dept. of State Parks, 228 Ga. 436, 439 (3) (185 S.E.2d 908) (1971). See also W. Blackstone, 1 Commentaries on the Laws of England at 235-237 (1st ed. 1765). After the war was concluded, Georgia adopted the common law of England as our own, [9] see Tift v. Griffin, 5 Ga. 185, 189 (1848), and with it, we adopted the doctrine of sovereign immunity.[10] See Crowder, 228 Ga. at 439 (3). See also Gilbert v. Richardson, 264 Ga. 744, 745 (1) (452 S.E.2d 476) (1994); Hennessy v. Webb, 245 Ga. 329, 329 (264 S.E.2d 878) (1980). Following its early adoption, the doctrine would persist in Georgia as a matter of common law for nearly two centuries. See Crowder, 228 Ga. at 440 (3).

         At common law, the doctrine of sovereign immunity was broad. The State "could not, without its own express consent, be subjected to an action of any kind." Peeples v. Byrd, 98 Ga. 688, 693-694 (25 SE 677) (1896) ("It is hardly necessary to cite authority for the proposition that a sovereign State is not liable to suit at the instance of a citizen, unless permission to sue has been expressly granted."). See also Eibel v. Forrester, 194 Ga. 439, 441-442 (22 S.E.2d 96) (1942) ("Without its consent the State can not be sued at all."); Roberts v. Barwick, 187 Ga. 691, 694 (1) (1 S.E.2d 713) (1939) ("[T]he State can not by the courts be required to submit to being sued against its express consent."); Western Union Tel. Co. v. Western & A. R. Co., 142 Ga. 532, 535 (83 SE 135) (1914) ("[T]he State can not be sued, or subjected to an action of any kind, without special legislative authority."); Brunswick & A. R. Co. v. State of Ga., 48 Ga. 415, 418 (1873) ("The State cannot, against the will of the Legislature, be compelled to submit its liabilities to its own Courts."); Printup v. Cherokee R. Co., 45 Ga. 365, 367 (1872) ("[T]he State cannot be made a party to this suit against or without her consent . . . ."). Most commonly, the doctrine was employed to bar suits for damages and other monetary relief. See, e.g., Roberts, 187 Ga. at 695-696 (2) (suit for failure of State to pay amounts owed under leases).

         Even so, notwithstanding the popular, contemporary notion that sovereign immunity is principally about the protection of the public purse, see, e.g., Martin v. Dept. of Public Safety, 257 Ga. 300, 301 (1) (357 S.E.2d 569) (1987), the doctrine at common law was understood more broadly as a principle derived from the very nature of sovereignty. See Gilbert, 264 Ga. at 749, n.7 (4) ("Historically, governmental or sovereign immunity was justified as a recognition that it was a contradiction of the sovereignty of the king to allow him to be sued as of right in his own courts."). See also Roberts, 187 Ga. At 694 (1) ("The sovereignty of the State is supreme, and to maintain that sovereignty[, ] the supremacy must also be maintained, and to do that the State must never be subjected to suit without its expressed consent."); Kawananakoa v. Polyblank, 205 U.S. 349, 353 (27 S.Ct. 526, 51 LE 834) (1907) ("A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends." (Citations omitted)). As such, it never was limited to suits for monetary damages. This Court applied the doctrine to bar proceedings in equity for injunctive relief against threatened and imminent wrongs. See, e.g., Southern Mining Co. v. Lowe, 105 Ga. 352, 356 (31 SE 191) (1898) (petition for injunctive relief to prevent execution of contracts for convict labor); Peeples, 98 Ga. at 693-694 (petition for injunctive relief to prevent allegedly illegal contract from being carried into effect). We also applied it as a bar against suits for declaratory relief. See, e.g., Musgrove v. Ga. R. & Banking Co., 204 Ga. 139, 158-159 (49 S.E.2d 26) (1948) (suit for injunction and declaratory judgment concerning taxation of property).

          Sovereign immunity at common law was broad in another sense too. The doctrine was understood to apply not only when the State was sued eo nomine, [11]but also in suits against its departments, agencies, and officers in their official capacities. See, e.g., Cardin v. Riegel Textile Corp., 219 Ga. 695, 697 (2) (135 S.E.2d 284) (1964) (suit against State Board of Workmen's Compensation); Roberts, 187 Ga. at 695 (2) (suit against "Columbus Roberts, not as an individual but as Commissioner of Agriculture"); Southern Mining Co., 105 Ga. at 356 (suit against prison commissioners as "representatives of the State in their official capacity"). The application of the doctrine to bar suits against state officers in their official capacities was unrelenting, even when it was alleged that the officers had acted without legal authority. See, e.g., Ramsey v. Hamilton, 181 Ga. 365, 377 (182 SE 392) (1935) (suit against state officers in their official capacities for allegedly unlawful disbursements and expenditures of public funds). What's more, the doctrine of sovereign immunity at common law was broad enough to bar some suits against public officers in their individual capacities, although only to the extent that the State itself could be said to be the real party in interest. See Roberts, 187 Ga. at 695 (2) ("The general rule that is applicable in all cases is that any case, regardless of who are named parties thereto, that could result in a judgment or decree that would in any manner affect or control the property or action of the State, in a manner not prescribed by statute, is a suit against the State and cannot be brought without her consent." (Citations omitted)). The doctrine sometimes worked to bar suits, for instance, in which the relief sought would tend to impair or affect the property or contractual interests of the State. See, e.g., Linder v. Ponder, 209 Ga. 746, 747-748 (75 S.E.2d 814) (1953) (suit against Commissioner of Agriculture in his individual capacity, seeking injunctive relief and declaration of title as to land owned by the State, barred by sovereign immunity); Musgrove, 204 Ga. at 157 (even to the extent that state officer was sued in his individual capacity, "the plaintiff is here seeking to enforce what it claims to be a contract with the State of Georgia, and the State therefore . . . has a distinct and direct interest in the subject-matter of the litigation"); Printup, 45 Ga. at 367 ("If, therefore, there be anything in the judgment [against an individual agent of the State] affecting the interest or status of the State as to the property covered by the bill, (and we think there is, ) the judgment is, so far, reversed."). See also Frank J. Vandall, Tort Liability of Public Officials, 29 Mercer L. Rev. 303, 304-305 (I) (1977) (discussing limited application of sovereign immunity to suits against state officers in their individual capacities in cases in which the State itself is the real party in interest).

         The doctrine of sovereign immunity at common law generally was inapplicable, however, in cases in which state officers in their individual capacities were alleged to have acted without legal authority, even if they acted under color of their offices. See Stewart v. Atlanta Beef Co., 93 Ga. 12, 19 (18 SE 981) (1893) (affirming judgment for damages against tax collector in his individual capacity, noting that "[a] tax-collector has no authority, [by color of office], to deprive any citizen of his money or property unless expressly so authorized to do by law; and he will not be protected, though apparently proceeding under the forms of law, when there is no law to authorize or justify his action"). As this Court explained in Cannon v. Montgomery, 184 Ga. 588, 591 (1) (192 SE 206) (1937),

A suit can not be maintained against the State without its statutory consent. This general rule can not be evaded by making an action nominally one against the servants or agents of a State, when the real claim is against the State itself and it is the party vitally interested. Therefore, generally, where a suit is brought against an officer or agency of the State with relation to some matter in which the defendant represents the State in action and liability, and the State, while not a party to the record, is the real party against which relief is sought, so that a judgment for plaintiff, although nominally against the named defendant as an individual or entity distinct from the State, will operate to control the action of the State or subject it to liability, the suit is in effect one against the State. If, however, the sole relief sought is relief against the State officers, it is maintainable. . . . A suit may be maintained against officers or agents personally, because, while claiming to act officially, they have committed or they threaten to commit wrong or injury to the person or property of plaintiff, either without right and authority or contrary to the statute under which they purport to act.

(Citations omitted). See also Florida State Hosp. v. Durham Iron Co., 194 Ga. 350, 352-353 (2), (3) (a) (21 S.E.2d 216) (1942) (reconciling general rule that suits against officers in their official capacities are barred with principle that suits against officers in their individual capacities are "generally maintainable").

         These principles extended at common law to suits for relief from the enforcement of laws that were alleged to violate the constitution. The Court applied the doctrine of sovereign immunity to bar such suits in cases in which state officers were sued in their official capacities or in which the State itself otherwise was the real party in interest. See, e.g., Maddox v. Coogler, 224 Ga. 806, 808-809 (165 S.E.2d 158) (1968) (suit to enjoin members of state Mineral Leasing Commission from executing leases of state properties pursuant to allegedly unconstitutional statutes); Peters v. Boggs, 217 Ga. 471, 473-475 (2) (123 S.E.2d 258) (1961) (suit to enjoin allegedly unconstitutional appropriations of public funds for the support of desegregated schools); Ramsey, 181 Ga. at 377 (suit to enjoin disbursement and expenditure of public funds under allegedly unconstitutional appropriations act). In other cases, however, we found that the doctrine posed no bar to suits in which state officers were sued in their individual capacities with respect to the enforcement of allegedly unconstitutional laws.

         In Dennison Manufacturing Co. v. Wright, 156 Ga. 789 (120 SE 120) (1923), for instance, a Massachusetts manufacturer sued the state comptroller-general, who had collected a license and occupation tax from an agent of the manufacturer in Georgia. Alleging that the tax - which was imposed only upon agents of foreign or nonresident corporations - was an unconstitutional burden upon interstate commerce, the manufacturer sought monetary relief from the comptroller in the amount of the tax that the agent had paid. The comptroller raised sovereign immunity as a bar to the suit, but this Court held that the doctrine did not apply. To begin, we noted that "[w]e do not construe this action as one brought against the defendant in his official capacity, but as an action against him individually for an act which, while done in his official capacity, was wholly without lawful authority, and beyond the scope of his official power." 156 Ga. at 793. We then explained that the comptroller was individually liable for his collection of an unconstitutional tax under color of his office:

Was the Comptroller-General individually liable to the plaintiffs for the exaction and collection of this occupation tax? We have seen that under the facts of this case[, ] this tax was illegal. . . . Would the Comptroller-General . . . be exempt from liability on the ground that he demanded and collected this tax under such unconstitutional statute? This is the vital question in this case. An unconstitutional statute, though having the form, features, and name of law, is in reality no law. It is wholly void. In legal contemplation it is as inoperative as if it had never been passed. It has been declared that it is a misnomer to call such statute a law. Such a statute confers no authority upon any one, and affords protection to no one.
* * *
So the Comptroller-General will not be protected from individual liability under this general tax act, if it in fact imposes an occupation tax upon the plaintiffs, for the reason that such act is unconstitutional so far as the plaintiffs are concerned. As an unconstitutional act confers no authority upon an officer, his acts thereunder are the same as if no statute on the subject existed. He is as much without authority to enforce a tax levy under an unconstitutional statute as he would be to levy and collect such tax in the absence of any statute. This being so . . . the Comptroller-General is individually liable, under the facts stated in the petition of the plaintiffs, for the exaction and collection of this tax from them.

Id. at 796-798 (citations omitted). In the end, we added that, "should there be any recovery against the defendant, the legislature should, and doubtless will, reimburse the defendant, as the State has received the money raised by the exaction of this tax." Id. at 798.

         In Holcombe v. Ga. Milk Producers Confederation, 188 Ga. 358 (3 S.E.2d 705) (1939), we considered a suit for injunctive relief from the enforcement of an allegedly unconstitutional statute. There, a cooperative association of milk producers brought suit against the members of the state milk-control board, alleging that the Georgia Milk Control Act of 1937 was unconstitutional. Although we ultimately concluded that the statute was constitutional, we held that the suit was not barred by the doctrine of sovereign immunity. Citing Dennison, we noted that the members of the milk-control board were sued "as individuals, " who had acted under color of, but allegedly without, lawful authority. 188 Ga. at 362 (1). As such, we concluded, the suit was not one against the State, and the doctrine of sovereign immunity posed no bar:

That an officer charged with the administration of a law alleged to be unconstitutional is not in so acting an officer of the State, and that a suit to enjoin him cannot be said to be a suit against the State, is illustrated by the nature of an unconstitutional statute in the eyes of the law. . . . An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed. Where an act is attacked as unconstitutional, and it appears that [the] plaintiff is threatened with irreparable injury to his property by reason of the acts of an officer proceeding under and by virtue of such act, the suit against such officer cannot be considered as one against the State, but the court will take jurisdiction of it as a suit against the officer as an individual acting without constitutional authority, and determine the question of the validity of the act. In the present case[, ] the State is not a party to the record. No judgment is asked which will take the property of the State, or fasten a lien on it, or interfere with the disposition of funds in its treasury, or compel the State indirectly, by controlling its officers, to affirmatively perform any contract, or to pay any debt, or direct the exercise of any discretion committed to its officers. In view of what has been said, the petition was not subject to the demurrer setting up that the suit was one against the State.

Id. at 363-364 (citations and punctuation omitted).

          Another example is Undercofler v. Eastern Air Lines, Inc., 221 Ga. 824 (147 S.E.2d 436) (1966), a case in which an airline sued the state revenue commissioner and state director of sales and use taxes, who had threatened to assess sales and use taxes for fuel and parts used by the airline in interstate commerce, as well as for food served to passengers outside Georgia on interstate flights. The airline sought injunctive and declaratory relief from the assessment of such taxes, asserting that the applicable statute did not actually impose such taxes, and if it did, it would unconstitutionally burden interstate commerce. The commissioner and director contended that the suit was barred by the doctrine of sovereign immunity, but citing Dennison, we disagreed:

[T]his suit comes within the well established rule that [a] suit may be maintained against officers or agents personally, because, while claiming to act officially, they have committed or they threaten to commit wrong or injury to the person or property of [the] plaintiff, either without right and authority or contrary to the [legal authority] under which they purport to act. Although a defendant may assert that he acted officially and on behalf of the State, a suit of this class is not a suit against the State.

221 Ga. at 829 (1) (citations and punctuation omitted; emphasis added). Numerous other Georgia precedents are consistent with the principles set forth in Dennison and its progeny. See Irwin v. Arrendale, 117 Ga.App. 1, 2-3 (2) (159 S.E.2d 719) (1967) (citing cases).

         B.

         The doctrine of sovereign immunity would not persist forever merely as a matter of common law. By the early 1970s, the doctrine was under assault in Georgia, at least as it was applied in tort cases. Our Court had acknowledged long before that sovereign immunity sometimes was a "harsh rule, " but we explained then that abrogation or waiver of the doctrine was a matter for the General Assembly:

if it does not have the approval of the people of the State, there is a definite way, a plain way, and a legal way, whereby it can be changed. This court has always held that the State could expressly consent to be sued. Therefore a simple and brief enactment of the legislature giving this consent is all that is required in order to permit a suit against the State.

Roberts, 187 Ga. at 694 (1). The harshness of the doctrine was especially striking in cases in which it was applied to bar suits in tort to recover monetary damages for injuries to persons and property, and in one such case, the parties asked our Court to recognize the abrogation of the doctrine. When we decided Crowder in 1971, a bare majority of the Court adhered to the view that the abrogation or waiver of the doctrine "is a matter of public policy[, ] which addresses itself to the legislative, not the judicial, branch of our State government." Crowder, 228 Ga. at 440 (3). Three members of the Court dissented and stood ready to declare the doctrine at an end, at least in tort cases. See id. at 441 (Nichols, J., dissenting); id. at 445 (Felton, J., dissenting); id. at 446 (Hawes, J., dissenting). The split decision in Crowder did not put the question to rest, and indeed, three years later, this Court would grant petitions for writs of certiorari in two other cases, both for the express purpose of yet again reconsidering sovereign immunity in tort cases.[12] See Sheley v. Bd. of Public Education, 233 Ga. 487, 487 (212 S.E.2d 627) (1975).

         The General Assembly responded quickly to our decision in Crowder. When it met for its 1973 Session, the General Assembly proposed to amend the Constitution of 1945 to expressly reserve the doctrine of sovereign immunity as a matter of constitutional law. Under the amendment, only the Constitution itself or an act of the General Assembly would waive sovereign immunity, and to provide a means by which the General Assembly might ameliorate the harshness of the doctrine, the amendment authorized the General Assembly to establish a State Court of Claims in which claims against the State for injury or damage could be tried.[13] See Ga. L. 1973, p. 1489. In November 1974, the voters of Georgia ratified the amendment, and at that point, the doctrine of sovereign immunity was a matter of mere common law no more. See Ga. Const. of 1945, Art. VI, Sec. II, Par. X (as amended in 1974). The 1974 amendment subsequently was carried forward into the Constitution of 1976. See Ga. Const. of 1976, Art. VI, Sec. V, Par. I.

         This Court promptly acknowledged the 1974 amendment, noting that it gave "constitutional status" to the doctrine of sovereign immunity. Sheley, 233 Ga. at 488. Importantly, we acknowledged as well that sovereign immunity at common law, as it long had been understood by Georgia courts, and the sovereign immunity reserved by the 1974 amendment were one and the same: "Because of the adoption of this constitutional amendment, and it is now effective as a part of our Constitution, we hold that the immunity rule as it has heretofore existed in this state cannot be abrogated or modified by this [C]ourt."[14] Id. (emphasis added). Consistent with these understandings, after the doctrine of sovereign immunity was given constitutional status, this Court continued to observe the traditional distinction between suits against state officers in their official capacities, which are barred by sovereign immunity, and those against state officers in their individual capacities, which generally are not. See Hennessy v. Webb, 245 Ga. 329, 330 (264 S.E.2d 878) (1980). And in suits for injunctive and declaratory relief from official acts that were alleged to be unconstitutional, we continued to adhere to Dennison and its progeny. See Chilivis v. Nat. Distributing Co., 239 Ga. 651, 654 (1) (238 S.E.2d 431) (1977).

         The doctrine of sovereign immunity retained its constitutional status in the Constitution of 1983, which provided at its adoption that "[s]overeign immunity extends to the state and all of its departments and agencies." Ga. Const. of 1983, Art. I, Sec. II, Par. IX (as originally adopted).[15] The Constitution of 1983, however, changed the means by which sovereign immunity could be waived. The General Assembly had never exercised its authority under the 1974 amendment to establish a State Court of Claims, see R. Perry Sentell, Jr., Local Government Tort Liability: The Summer of '92, 9 Ga. St. U. L. Rev. 405, 407 (II) (B) (1993) (hereinafter Sentell, Tort Liability), and so, the Constitution of 1983 omitted any reference to a State Court of Claims. Although it retained the principle that sovereign immunity could be waived by the Constitution itself or an act of the General Assembly, the Constitution of 1983 added that a subsequently enacted statute would waive sovereign immunity only if it "specifically provides that sovereign immunity is hereby waived and the extent of the waiver." Ga. Const. of 1983, Art. I, Sec. II, Par. IX (as originally adopted). The Constitution of 1983 also waived sovereign immunity in suits for breach of a written contract, as well as in suits for monetary damages to the extent that such damages were covered by liability insurance. Id. See also Sentell, Tort Liability, supra, at 407-408 (II) (C) (discussing changes worked by Constitution of 1983).

         This Court recognized the Constitution of 1983 as a continuation for the State of the constitutional reservation of the sovereign immunity that had been recognized by the Georgia courts since the Founding, see Toombs County v. O'Neal, 254 Ga. 390, 391 (1) (330 S.E.2d 95) (1985), and consistent with that recognition, we continued to adhere to the rule at common law that suits against state officers in their official capacities amount to suits against the State itself and are barred by sovereign immunity. See Price v. Dept. of Transp., 257 Ga. 535, 537 (361 S.E.2d 146) (1987). The waiver provisions newly adopted with the Constitution of 1983, however, proved to be "grist for the litigational mills, " Sentell, Tort Liability, supra, at 408 (II) (D), and the decisional law applying these waiver provisions ultimately would lead to yet another evolution of the constitutional reservation of sovereign immunity. In a series of cases, this Court construed the reservation of sovereign immunity in Article I, Section II, Paragraph IX to extend not only to the State itself, but also to counties, see Toombs County, 254 Ga. at 391 (1), to school districts, see Thigpen v. McDuffie County Bd. of Education, 255 Ga. 59, 59 (335 S.E.2d 112) (1985) (plurality opinion), and later, to municipalities.[16] See Hiers v. City of Barwick, 262 Ga. 129, 131 (2) (414 S.E.2d 647) (1992). As a result, the immunity of those governments with respect to monetary damages was waived to the extent of their liability insurance. See Sentell, Tort Liability, supra, at 408-411 (discussing decisional law extending sovereign immunity of the State to counties, school districts, and municipalities). In addition, this Court relied on Article I, Section II, Paragraph IX to hold that the purchase of liability insurance for employees of a state department would waive the sovereign immunity of the department itself, see Martin, 257 Ga. at 303 (2), and we held that the General Assembly was without the authority to reserve sovereign immunity by statute to the extent that a department or agency had purchased liability insurance. See Price, 257 Ga. at 536, n.2.

         In the wake of these decisions, the General Assembly proposed to revise Article I, Section II, Paragraph IX, see Ga. L. 1990, p. 2435, and in November 1990, the voters approved the proposal.[17] Effective as of January 1, 1991, this constitutional amendment repealed the provision waiving sovereign immunity to the extent of liability insurance, and it added a provision that, for the first time, expressly authorized the General Assembly to enact a State Tort Claims Act, among other changes. See Curtis v. Bd. of Regents of Univ. System of Ga., 262 Ga. 226, 227 (416 S.E.2d 510) (1992). See also Sentell, Tort Liability, supra, at 411-412, 415-423 (III). But most important for our purposes, the 1991 amendment carried forward the constitutional reservation of sovereign immunity at common law as it was understood in Georgia, using the same language as the original Constitution of 1983 to reaffirm that "sovereign immunity extends to the state and all of its departments and agencies." Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e) (as amended). See also Gilbert, 264 Ga. at 746-47 (2). Likewise, the 1991 amendment also retained that sovereign immunity could only be waived by the Constitution itself or the General Assembly, and as to the General Assembly, only by way of a law that "specifically provides that sovereign immunity is thereby waived and the extent of such waiver."[18] Ga. Const. of 1983, Art. I, Sec. II., Par. IX (e) (as amended). See also Gilbert, 264 Ga. at 748 (3).

         C.

          In 1995, we decided IBM Corp. v. Evans, 265 Ga. 215 (453 S.E.2d 706) (1995), and in that split decision, a majority of the Court abandoned the understanding at common law that sovereign immunity bars suits against the State, its departments, and its officers in their official capacities for injunctive relief. The majority acknowledged that earlier cases routinely distinguished between suits against officers in their official capacities (which were barred by sovereign immunity) and those against officers in their individual capacities (which often were not). The majority then cast aside that distinction as a "legal fiction" that had caused confusion, and it announced that "a suit for injunctive relief to restrain an illegal act" was excepted altogether from the bar of sovereign immunity. 265 Ga. at 216 (1). Justice Benham, joined by Justice Hunstein, dissented, urging fidelity to the doctrine of sovereign immunity as it had been understood at common law by the Georgia courts for many years. See id. at 220-221 (Benham, J., dissenting) ("It is a long-standing principle of Georgia law that sovereign immunity is not applicable where an injunction is sought to prevent the commission of an alleged wrongful act by an officer of the state acting under color of office but without lawful authority and beyond the scope of official power because such a suit is not against the state, but against an individual stripped of his official character." (Citation and emphasis omitted)).

         Evans marked a drastic departure from our traditional understanding of sovereign immunity, but it was not long for our jurisprudence. Three years ago, we corrected course in Sustainable Coast and overruled Evans, putting the decisional law back on the track that leads from the common law. See 294 Ga. at 593. In Sustainable Coast, we reaffirmed that the doctrine of sovereign immunity bars suits against the State, its departments and agencies, and its officers in their official capacities for injunctive relief, except to the extent that sovereign immunity is waived by the constitution itself or the statutory law. See id. at 602-603 (2). Our holding in Sustainable Coast was premised explicitly upon our recognition of two fundamental principles that are embodied by the provisions of Article I, Section II, Paragraph IX of the Constitution of 1983. First, we acknowledged that the doctrine of sovereign immunity was born at common law, and it was that doctrine - sovereign immunity at common law as understood traditionally by the Georgia courts - that had been reserved constitutionally, beginning with the 1974 amendment of the Constitution of 1945. See id. at 597 ("This common law doctrine of sovereign immunity was afforded constitutional status in 1974." (Citation omitted)). Second, we recognized that the Constitution of 1983, as amended in 1991, quite clearly reserved the power to abrogate, limit, or waive the doctrine of sovereign immunity to the People themselves and their elected representatives in the General Assembly. See id. at 598 ("[T]he 1991 amendment to our Constitution restored to the legislature the exclusive power to waive sovereign immunity." (Citation omitted)). Consistent with these principles, we discerned that "the courts no longer ha[ve] the authority to abrogate or modify the doctrine." Id. at 597 (citation omitted). And in closing, we explained: "Our decision today does not mean that citizens aggrieved by the unlawful conduct of public officers are without recourse. It means only that they must seek relief against such officers in their individual capacities." Id. at 603.

         We followed up Sustainable Coast with our decision in Olvera. In that case, we considered whether the doctrine of sovereign immunity extends to suits for declaratory relief. We began in Olvera with the observation that "[t]he sweep of sovereign immunity under the Georgia Constitution is broad, " 298 Ga. at 426, and we held that, "absent some exception, " it applies to bar suits against the State for declaratory relief. Id. at 427. Just as we had done in Sustainable Coast, we explained that, if such an "exception" were to be found, it must be found in the constitution itself, see id. at 426 n.1, or in the statutory law. See id. at 426. We then looked to the statutory law under which the plaintiffs brought their suit, but we found no specific waiver of sovereign immunity. See id. at 427-428. We again concluded by noting that aggrieved citizens might properly seek relief against state officers in their individual capacities. See id. at 428.[19] Keeping this important historical context in mind, we now turn back to the case at hand.

         III.

          The plaintiff-physicians brought this lawsuit against twenty state officers in their official capacities only, seeking injunctive and declaratory relief from official acts that would, they allege, violate various provisions of the Constitution of 1983. But as our precedents make clear, a suit against a state officer in his official capacity amounts to a suit against the State itself, Cameron, 274 Ga. at 126 (3), and the doctrine of sovereign immunity bars suits against the State to which the State has not consented. See Gilbert, 264 Ga. at 745-746 (1). Sovereign immunity extends to suits for injunctive relief, Sustainable Coast, 294 Ga. at 603 (2), and it extends as well to suits for declaratory relief, see Olvera, 298 Ga. at 427. Moreover, as we made clear in Sustainable Coast and its progeny, precisely because the doctrine of sovereign immunity at common law has been constitutionally reserved, the doctrine applies today just as it applied at common law. And at common law, it was understood by the Georgia courts ...


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