Sovereign Immunity and Employees in Georgia

January 28, 2016

Sovereign immunity traces its roots back to English common law, but it attained constitutional status in Georgia in 1974 with an amendment to the Constitution of 1945 that allowed the General Assembly to waive sovereign immunity. The concept of sovereign immunity is that the State (the “sovereign”) cannot be sued.

The public policy considerations underlying the principle protect taxpayer dollars and allow the government to operate unencumbered by courts. The State of Georgia remained absolutely immune from all suits in state courts until 1983, when the voters approved a constitutional amendment waiving sovereign immunity to the extent of liability insurance. This exception means that if a state, county, or municipality maintains insurance covering the type of harm being sued for, immunity is waived up to the amount of the insurance. In 1991, the voters approved an amendment authorizing the legislature to waive the state’s sovereign immunity by enacting a State Tort Claims Act and by any separate enactment that specifically waives immunity. This same amendment states that the State has no immunity for claims asserting breach of contract. Teh upshot of all of this is that with the exception of contract claims, the state controls whether it is immune from lawsuits against it.

The Supreme Court of Georgia recently rendered a decision significantly restricting the ability to file legal actions against governmental entities, such as counties, which are generally protected by sovereign immunity. In Georgia Dept. of Natural Resources et al. v. Center for a Sustainable Coast, 294 Ga. 593 (2014), the Court generally disavowed cases allowing suits against the government that predated the incorporation of sovereign immunity into the state Constitution. The Court specifically held that the plain language of teh constitution explicitly bars suits against the state or other entities entitled to the defense until and unless sovereign immunity has been waived by the General Assembly.

Many, but not all, employment claims fall outside the protection of sovereign immunity. Claims for discrimination (enforced by Title VII) are not barred by immunity because these claims are based on provisions of the United States Constitution. This is not true for all claims where there has not been an express waiver of immunity. If you believe you may have a claim against any public entity, such as a county, city or even the state, you should seek out experienced and competent legal representation from the lawyers at Parks, Chesin & Walbert.

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