Sovereign Impunity: The Supreme Court of Georgia's False Textualism Expands the Doctrine of Sovereign Immunity in the State

Abstract

Until recently, sovereign immunity — the doctrine that protects state entities from suit without the State’s consent — had been held by the Supreme Court of Georgia not to apply to suits seeking solely injunctive relief to prevent the State, its departments, or agencies from acting illegally or outside the scope of their authority. This rule stemmed partly from the fact that a significant policy basis for sovereign immunity is the protection of taxpayer funds, but also was grounded on the principle that the State may not “cloak itself in the mantle of sovereign immunity” to prevent its citizens from holding the State accountable to its own laws. In a recent case, however, the Supreme Court of Georgia nullified this longstanding principle by overruling a previous decision recognizing and affirming it. The Court’s decision to overrule the earlier case was based on a purportedly textualist analysis of a 1991 amendment to Georgia’s Constitution reserving sovereign immunity to the State, its departments, and agencies, and granting the exclusive power to waive sovereign immunity to Georgia’s General Assembly. Textualism, an approach to statutory and constitutional interpretation, requires courts to interpret texts based on the ordinary meaning of the terms employed within their context. Georgia courts’ interpretation jurisprudence typically reflects textualist principles. Although the Court examined the language in several portions of the Constitution’s sovereign immunity provision, it neglected the meaning of the provision’s most significant phrase: “sovereign immunity” itself. The Court failed to consider the constitutional language within its appropriate historical context, namely by refusing to examine the historical meaning of sovereign immunity as developed through decisions of the Georgia courts. This Article concludes that the Court’s decision is unsupported by the textualist principles of constitutional interpretation that it espouses and by the Court’s own precedent on the interpretation of constitutional text.