Local Government Law
| Publication year | 2020 |
Local Government Law
Russell A. Britt
Kelsey L. Kicklighter
Jennifer D. Herzog
Nick Kinsley
Jacob Stalvey O'Neal
Pearson K. Cunningham
Philip E. Friduss
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Interesting developments on the application of sovereign immunity continued during this survey period.1 In City of College Park v. Clayton
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County,2 the Georgia Supreme Court addressed whether sovereign immunity3 bars suits between political subdivisions of the state, such as counties and cities, and concluded that it does not.4 The case involved taxation of alcoholic beverages at Hartsfield-Jackson Atlanta International Airport. The airport is located primarily within Clayton County, while some of the businesses located within the airport are located in unincorporated sections of the county and other businesses are located within the incorporated limits of the City of College Park. The city sued the county, asserting that the city had not been receiving the proper amount of alcoholic beverage taxes to which it was entitled under state law and that the county improperly infringed on the city's authority to tax by instructing vendors to remit 50% of the taxes due from the sale of alcohol in those portions of the airport located within the city's limits.5
While involving several legal issues, the supreme court noted that the issue of whether sovereign immunity applied was the most important issue to consider.6 Following a lengthy discussion on the continuous state constitutional reservation of the common law of sovereign immunity and the origins of the same, the supreme court recapped that the State of Georgia is the sovereign for purposes of this immunity and that the sovereign cannot be called into the courts of its own making by private persons without the sovereign's permission.7 This understanding provided a strong indication that sovereign immunity does not apply where two political subdivisions of the state are exercising their respective home rule powers by collecting tax revenues and neither is acting on behalf of the state because, in such scenario, there is no sovereignty to protect.8 In other words, the county is not a sovereign over the city and vice versa, and "neither entity retains superior authority over the other that would prevent it from being hailed into a court of law by the other."9
The supreme court, therefore, held that sovereign immunity would not apply to this lawsuit unless applicable precedent somehow altered this
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fundamental nature of sovereign immunity.10 Nevertheless, a review of case law revealed that political subdivisions had been allowed to sue each other under common law in both England and Georgia, and no precedent was found where suits between political subdivisions of a sovereign were barred by sovereign immunity.11 Accordingly, the supreme court held sovereign immunity did not bar the city from bringing suit against the county in this case.12
In Klingensmith v. Long County,13 the Georgia Court of Appeals provided an important reminder on how sovereign immunity is applied differently to cities versus counties.14 The plaintiffs sued Long County, alleging negligence and nuisance for repeated flooding of their subdivision. They argued that their negligence claim was not barred by sovereign immunity because the county somehow could be held vicariously liable for ministerial acts negligently performed by the county's employees.15
The court of appeals, nevertheless, reiterated that the law is clear that a "county may be liable for a county employee's negligence in performing an official function only to the extent the county has waived sovereign immunity."16 And it is a plaintiffs burden to point to the applicable waiver.17 Although the plaintiffs contended that a waiver of sovereign immunity exists for claims alleging the negligent performance of ministerial duties, the court of appeals correctly found that such waiver only applies to cities and does not apply to counties.18 The court of appeals therefore held that the plaintiffs' negligence claims were barred by sovereign immunity.19
The holding in Board of Commissioners of Lowndes County v. Mayor of Valdosta, et al.20 highlights an on-going legal conundrum following the
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Lathrop v. Deal21 decision. Arising from a dispute over requirements under state's Service Delivery Strategy Act,22 the county sued the cities within the county and the Georgia Department of Community Affairs (DCA), following DCA's imposition of sanctions on the county and cities pursuant to the Act.23 The county requested declaratory and injunctive relief, as well as mandamus relief, arguing that a prior service delivery strategy agreement between the county and the cities should remain in effect and that the county and cities should remain eligible for state-administered financial assistance, grants, loans, and permits.24
Asserting sovereign immunity, DCA filed a motion to dismiss the declaratory and injunctive relief claims. In response, the county filed an amended petition removing DCA as a party and adding the commissioner and board members of DCA in their official and individual capacities. The commissioner and board members then filed a motion to dismiss the amended petition, arguing that sovereign immunity barred the claims for declaratory and injunctive relief, and the trial court granted it.25
The Georgia Court of Appeals noted that in Lathrop and other decisions the Georgia Supreme Court previously held that sovereign immunity barred claims against the state for declaratory and injunctive relief.26 However, in Lathrop the supreme court also "indicated that such suits against state officers in their individual capacities however may not be barred by sovereign immunity."27 The court of appeals nevertheless pointed to other language in Lathrop explaining that sovereign immunity cannot be evaded by suing servants or agents of the state, "when the real claim is against the [s]tate itself and it is the party vitally interested."28
The court of appeals noted that the test for determining whether a suit is in reality one against the state is whether "if the relief prayed [for] in the present case is granted, it will not operate to control the action of the [s]tate or subject it to liability."29 Applying this test, the court of appeals held that (1) the county's pleadings and briefs demonstrated that DCA was the real party in interest; (2) the relief requested would control the actions of the state by requiring the commissioner and board members to
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direct DCA to stop certain actions; and (3) the commissioner and board members had no statutory authority in their individual capacities under the Act to direct DCA to do anything.30 Therefore, the court of appeals affirmed the trial court's dismissal of the declaratory and injunctive relief claims on sovereign immunity grounds.31
This holding counters, at least in part, the proposition made in Lathrop that while sovereign immunity bars such claims against the state and its officials in their official capacities, officials in their individual capacities nonetheless may be sued for prospective declaratory and injunctive relief.32 The supreme court, however, granted certiorari on June 1, 2020.
In Gatto v. City of Statesboro,33 the Georgia Court of Appeals reaffirmed the physical precedent holding in City of Albany v. Stanford34 that the "nuisance exception" to sovereign immunity does not apply where the damages at issue are injury to person or loss of life.35 Sovereign immunity therefore applied to the plaintiffs' nuisance claim against the City of Statesboro for injuries and the alleged wrongful death of their son following his altercation with a bouncer at a bar in the city.36
The plaintiffs further argued that the city waived its sovereign immunity through its purchase of insurance. While the city did have an insurance policy, the policy contained an endorsement providing that there was coverage under the policy where sovereign immunity otherwise would have applied.37 The court of appeals therefore held that because the lawsuit involved a governmental function to which sovereign immunity applies, the insurance policy did not cover the plaintiffs' claims due to the plain language of the policy endorsement.38
The plaintiffs also tried to argue that the policy endorsement "effectively usurps the [Georgia] General Assembly's legislative waiver and allows [cities] to contract around the waiver."39 However, the court of appeals held that the legislative waiver expressly provides for the waiver only where the policy "covers an occurrence for which the defense of sovereign immunity is available."40 Thus, given the plain meaning of
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the statute and that "the Supreme Court of Georgia [previously] has specifically analyzed insurance policies to determine whether they actually provide coverage for a plaintiff's claims," the court of appeals rejected the plaintiffs' argument.41
Finally, in a pair of cases decided by two different panels within nine days of each other, the Georgia Court of Appeals reaffirmed that the waivers from protection provided under the Recreational Property Act,42 including where there is a charge for the use of recreational property, do not constitute a waiver of a county's sovereign immunity.43
It was noted in the June 1, 2017 through May 31, 2018 Survey44 that the Georgia Court of Appeals' decision in Odum v. Harn45 did not heed the Georgia Supreme Court's discussion in Barnett v. Caldwell,46 which admonished lower courts for summarily classifying student supervision as a discretionary function in the context of official immunity47 without analyzing the particular facts of the case48 —likely because Barnett was decided just ten days...
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