Wait, You Can't Just Sue the Government?
Sovereign immunity has been up for discussion a lot in recent years in conjunction with the nation’s debate regarding racism, equality, and justice. A current example where sovereign immunity will be at issue is in the case of Secoriea Turner, where an 8-year-old girl was shot and killed on July 4, 2020, by what her family calls an armed militia composed of vigilante community members. The family says the gun-wielding group shot into their car while the family was driving down University Avenue. The shooting occurred near the Wendy’s where Rayshard Brooks was killed approximately one month prior by an Atlanta police officer. Secoriea Turner’s family claim that following the death of Mr. Brooks, the City and its officials allowed the area to become “an epicenter for protests and violence with little to no policing to keep the area under control.” Their ante litem notice details the City’s failure to properly respond and protect its citizens despite the fighting, gun violence and an armed militia barricade in the streets. One of the hotly contested issues in this case will be whether the actions and omissions the family claims the City and its officials made were ministerial duties (which are not protected by sovereign immunity) or whether they are discretionary ones (which are protected by sovereign immunity).
The doctrine of sovereign immunity, also known as governmental immunity, provides that the State and its agencies have absolute immunity from suit unless they have waived their immunity. In simple terms, the government cannot be sued unless it consents to being sued, which thereby obviously makes it difficult to sue the government. The common law doctrine dates back to 1784 in Georgia, and it was given constitutional status in 1974. Though it originally developed under the principle that “the king can do no wrong” and therefore cannot be sued, it is principally based (at least now) on the policy of protecting taxpayer dollars. In other words, it only hurts the public when the government has to use taxpayer money to satisfy legal liabilities rather than putting that money toward something else to benefit the public.
Since attaining constitutional status, various waivers to sovereign immunity (or consents to being sued) have been made. Georgia voters now are in a position to change Georgia’s law on sovereign immunity in a big way by voting to pass a constitutional amendment that would remove many of the sovereign immunity protections in place. Proposed Amendment 2 on Georgia’s 2020 ballot looks something like this:
Waives state and local sovereign
immunity for violation of state laws,
state and federal constitutions.
House Resolution 1023
Act No. 596
"Shall the Constitution of Georgia be amended to
waive sovereign immunity and allow the people of
Georgia to petition the superior court for relief
from governmental acts done outside the scope of
lawful authority or which violate the laws of this
state, the Constitution of Georgia, or the
Constitution of the United States?"
A vote of “yes” would waive (or do away with) protections of sovereign immunity in Georgia. A vote of “no” would preserve sovereign immunity as-is.
Sovereign immunity is just one of the challenges that must be overcome when pursuing claims against the government. If you or someone you know has questions about asserting a claim against the government, please contact Payne & du Toit at 1-877-238-3221 for a free consultation.