Sovereign Immunity Is Absolute, and Textualism May Be Too at Georgia High Court
ALM Media
Updated
On June 19, 2017, the Georgia Supreme Court issued a widely anticipated decision, Lathrop v. Deal. The case questioned whether the doctrine of sovereign immunity barred challenges to the constitutionality of state laws. In its ruling, the court: (1) provided a roadmap for how such challenges must be made, and (2) set forth important views of its role in the balance of powers within state government. While the first point is important, the second may help drive business and legal decisions within Georgia.
The Decision
The Lathrop case was a challenge to a Georgia statute regulating abortions. The lawsuit was brought against Gov. Nathan Deal and other individuals in their official capacities, and it sought to enjoin enforcement of the statute. The lawsuit was limited to challenges under the Georgia Constitution. The state Supreme Court held, in a lengthy and history-laden opinion authored by Justice Keith Blackwell, that the doctrine of sovereign immunity barred a lawsuit of any kind (absent waivers) against the state or its officials in their official capacity, including a challenge to the constitutionality of a statute. The decision further held, however, that state and local officials can be sued in their individual capacities challenging enforcement of the statute, so long as plaintiffs seek only prospective, injunctive relief.
What It Means for Businesses, Litigators and Textualism
Businesses in Georgia need to be aware of this holding for several reasons. First, the Georgia Constitution is substantively different from the U.S. Constitution in both content and approach. Many of the provisions of the state constitution are more granular in nature. Accordingly, the concept of a corporate challenge to a statute as a violation of the state constitution may be more likely to arise than a business challenge to the U.S. Constitution. The Lathrop case sets forth the framework for such a challenge.
Second, the opinion has much to teach about how the newly constituted state Supreme Court will handle future cases and how that will impact lawsuits throughout Georgia. It is important to note that six of the nine sitting Georgia justices have been appointed since 2005 (including Justice Blackwell), two years after the Georgia governorship became held by a Republican for the first time in generations. Two of those justices are the result of an expansion of the court from seven justices to nine, a topic that was of much political debate over whether the court required more assistance or whether the current governor was "packing" the court. And while the two most recent appointees did not participate in the case, it is nonetheless interesting to read a case of constitutional proportions to see how the newly constituted court will approach its jurisprudence.
The underlying takeaway from this opinion is perhaps one word: textualism. The court noted that when it inquires "into the meaning of a constitutional provision, we look to its text, and our object is to ascertain the meaning of the text at the time it was adopted." As if to emphasize the importance of this concept, the court stated in a separate part of the opinion that the judicial review clause of the state constitution needed to be analyzed under the standard of what it would have meant in 1861, when it was first made a part of the constitution.
Interestingly, in support of the language quoted above, the court quoted Georgia Motor Trucking Assoc. v. Georgia Dep't. of Revenue, another constitutional challenge decided two weeks prior to Lathrop and cited a 2010 concurring opinion. Given the historical review provided in the decision as a whole, the emphasis on new cases is noteworthy. Moreover, the opinion in Georgia Motor Trucking, and therefore its emphasis on textualism, was written by one of the justices who did not participate in Lathrop (Justice Peterson), and also cited the same 2010 concurring opinion. It is notable that the opinion in Georgia Motor Trucking also relied on a book co-written by late U.S. Supreme Court Justice Antonin Scalia, "Reading Law: The Interpretation of Legal Texts" (Scalia, A and Garner, B., 2012). Justice Scalia is considered by many to be the originator and "godfather" of textualism as an interpretative tool.
The fact that Lathrop and Georgia Motor Trucking were written within a month of each other by different justices and did not rely on any binding precedent dated before June 2017 in support of the textualist approach is noteworthy. Taken together, it is easy to believe we are witnessing a quite intentional effort to create a series of binding authorities setting forth the new role of Georgia courts in interpreting statutes and the state constitution.
In Lathrop, the Supreme Court appears to be sending a signal to the lower courts that the plain meaning textualism made popular by Scalia is not only alive and well in Georgia but is the guiding principle on which statutory interpretation will be based in the foreseeable future.
Finally, it is noteworthy to view how both Lathrop and Georgia Motor Trucking approached statutory interpretation in the context of textualism. Both cases are heavy on historical discussion, tracing statutory language from the first use of the language through the most recent draft in existence. While legislative intent may not be of much importance, legislative history carries significant weight. Any attorney appearing in an appellate forum in Georgia should certainly be prepared to discuss the relevant statutory history in great amounts of detail.
Final Thoughts
What does this all mean? In sum, it means that the precise wording lawmakers use in their bills will continue to take on even more importance, as a challenge to a state statute or regulation will most likely rise and fall on the language of that statute alone. Whether that will bode better or worse for business in Georgia remains to be seen. However, it seems clear that the Georgia Supreme Court is quickly adopting a deference to the legislature that should be incorporated into all litigation and business decisions within the state.
