{"id":12182,"date":"2015-02-07T10:59:36","date_gmt":"2015-02-07T15:59:36","guid":{"rendered":"http:\/\/www.l-a-k-e.org\/blog\/?p=12182"},"modified":"2015-02-07T11:08:04","modified_gmt":"2015-02-07T16:08:04","slug":"hb-59-to-waive-sovereign-immunity-in-certain-cases","status":"publish","type":"post","link":"http:\/\/www.l-a-k-e.org\/blog\/2015\/02\/hb-59-to-waive-sovereign-immunity-in-certain-cases.html","title":{"rendered":"HB 59 to waive sovereign immunity in certain cases"},"content":{"rendered":"

\r\n\r\n<\/a>\r\nSue the state? You’ll lose, because of sovereign immunity,\r\nunless HB 59 passes.\r\nThen you might be able to sue GA-DNR for circumventing permiting\r\nin allowing construction on the Georgia Coast, or if it\r\nshould approve a compressor station in Albany, or if it\r\nshould issue any other permits for the Sabal Trail fracked methane pipeline.\r\n

\r\n\r\nState agencies such as the Department of Natural Resources (GA-DNR),\r\n\r\n<\/a>\r\ncan use “letters of permission” to do things like make alterations to\r\nGeorgia’s coast, and anyone suing to stop it runs up against sovereign immunity\r\nunless the issuing agency has expressly waived it.\r\nNow that may change with\r\n\r\nHB 59<\/a>,\r\n“State tort claims; waiver of sovereign immunity for declatory judgment or injunctive relief; provide”.\r\nIt has six co-sponsors, including\r\n\r\nJay Powell, District 171, Camilla, Mitchell County, GA<\/a>.\r\n

\r\nHere’s the key part:\r\n\r\n\r\n

\r\n

\r\nSECTION 1.\r\n

\r\nChapter 21 of Title 50 of the Official Code of Georgia Annotated,\r\nrelating to waiver of sovereign immunity as to actions ex contractu\r\nand state tort claims, is amended by adding a new article to read as\r\nfollows:\r\n<\/p>\r\n

\r\n“ARTICLE 3<\/u>\r\n

\r\n50-21-50.\r\n
\r\nThe defense of sovereign immunity is waived\r\nas to any action brought in the courts of this\r\nstate by an aggrieved person seeking declaratory judgment or injunctive relief.<\/u>”\r\n<\/blockquote>\r\n

\r\nWhat’s not to like?\r\nCitizens and aggrieved organizations should be able to sue the state\r\nfor overreach.\r\nBut the UGA Regents and the state Attorney General’s office don’t think so.\r\n

\r\nKathleen Baydala Joyner, Daily Report, 2 February 2015,\r\n\r\nGeorgia AG, Regents Say Bill Waives Too Much Sovereign Immunity<\/a>,\r\n

\r\n

\r\n\r\n<\/a>\r\nGeorgia’s attorney general and university system governing board\r\nwant to trim a bill that would waive the state’s sovereign immunity\r\nin certain cases.\r\n<\/p>\r\n

\r\nDuring a hearing Monday morning at the Capitol, representatives from\r\nthe Law Department and the Board of Regents told lawmakers they\r\ndidn’t disagree with the intent of House Bill 59—to undo the\r\neffects of a 2014 Georgia Supreme Court ruling that said sovereign\r\nimmunity blocked all lawsuits seeking injunctive relief from the\r\nstate.\r\n<\/p>\r\n

\r\nBut they argued the bill, which says sovereign immunity would be\r\nwaived “as to any action brought in the courts of this state by an\r\naggrieved person seeking declaratory judgment or injunctive relief,”\r\nwas too broad.\r\n<\/p>\r\n

\r\nWaiving sovereign immunity as a defense for declaratory judgment\r\ncould lead to “everyday decisions of state government being overseen\r\nby the courts,” said Nels Peterson, vice chancellor of legal affairs\r\nfor the University System of Georgia. To protect the separation of\r\npowers, the waiver in the bill should be limited to only cases\r\nseeking injunctive relief, Peterson said.\r\n<\/p>\r\n

\r\nPeterson also said the bill, as written, could be interpreted to\r\nsubject entities such as the Department of Corrections and public\r\nschools to certain lawsuits challenging their authority. Under the\r\nAdministrative Procedures Act, those agencies are exempted from\r\nsuits challenging their rules in Superior Court if the rules violate\r\nsomeone’s rights.\r\n<\/p>\r\n

\r\n“The giving up of these sorts of agencies to regular declaratory\r\njudgment has the real potential for unforeseen consequences,” he\r\nsaid.\r\n<\/p>\r\n

\r\nDuring a hearing Monday morning at the Capitol, representatives from\r\nthe Law Department and the Board of Regents told lawmakers they\r\ndidn’t disagree with the intent of House Bill 59—to undo the\r\neffects of a 2014 Georgia Supreme Court ruling that said sovereign\r\nimmunity blocked all lawsuits seeking injunctive relief from the\r\nstate.\r\n<\/p>\r\n

\r\nBut they argued the bill, which says sovereign immunity would be\r\nwaived “as to any action brought in the courts of this state by an\r\naggrieved person seeking declaratory judgment or injunctive relief,”\r\nwas too broad.\r\n<\/p>\r\n

\r\nWaiving sovereign immunity as a defense for declaratory judgment\r\ncould lead to “everyday decisions of state government being overseen\r\nby the courts,” said Nels Peterson, vice chancellor of legal affairs\r\nfor the University System of Georgia. To protect the separation of\r\npowers, the waiver in the bill should be limited to only cases\r\nseeking injunctive relief, Peterson said.\r\n<\/p>\r\n

\r\nPeterson also said the bill, as written, could be interpreted to\r\nsubject entities such as the Department of Corrections and public\r\nschools to certain lawsuits challenging their authority. Under the\r\nAdministrative Procedures Act, those agencies are exempted from\r\nsuits challenging their rules in Superior Court if the rules violate\r\nsomeone’s rights.\r\n<\/p>\r\n

\r\n“The giving up of these sorts of agencies to regular declaratory\r\njudgment has the real potential for unforeseen consequences,” he\r\nsaid.\r\n<\/p>\r\n<\/blockquote>\r\n

\r\nPictured is Britt Grant, solicitor-general for the state department of law,\r\nwho the article says “said her office has many of the same concerns as the Board of Regents.”\r\n

\r\nOK, those are some legitimate concerns.\r\nPeterson wants an aggrieved person defined according to standard federal\r\nrequirements, “injury in fact, causation and redressability” along\r\nwith some other constraints.\r\n

\r\nWhat about the parties who brought this bill?\r\n(As usual, I added the links and images.)\r\n

\r\n

\r\n\r\n<\/a>\r\n\r\nHouse Judiciary<\/a> Chairman\r\n\r\nWendell Willard, R-Sandy Springs<\/a>, said he\r\nintroduced the bill in response to the high court’s ruling last\r\nFebruary in\r\n\r\nGeorgia Department of Natural Resources v. Center for\r\nSustainable Coast, 294 Ga. 593<\/a>. In the decision, the Supreme Court\r\nunanimously overruled its 1995 decision in\r\nIBM v. Evans, 265 Ga. 215<\/a>.\r\n<\/p>\r\n

\r\nIn the IBM case, the court said the state Constitution allowed a\r\nplaintiff to seek injunctive relief against the state or public\r\nofficials who acted outside the scope of their authority. In the\r\nSustainable Coast case, the court found the opposite, saying the\r\nConstitution vested the power to waive sovereign immunity\r\nexclusively with the Legislature.\r\n<\/p>\r\n<\/blockquote>\r\n

\r\n\r\n<\/a>\r\nThe\r\n\r\nCenter for a Sustainable Coast<\/a>\r\nalso lost another such case against GA-DNR last year,\r\n\r\n756 S.E.2d 554 (2014),\r\n326 Ga. App. 288<\/a>\r\nCENTER FOR A SUSTAINABLE COAST, INC. et al. v. GEORGIA DEPARTMENT OF NATURAL RESOURCES.\r\nCourt of Appeals of Georgia.\r\nMarch 17, 2014.\r\nThe appeal started two years earlier,\r\n\r\n734 S.E.2d 206 (2012)<\/a>,\r\nCENTER FOR A SUSTAINABLE COAST, INC., et al. v. GEORGIA DEPARTMENT OF NATURAL RESOURCES.\r\nCourt of Appeals of Georgia.\r\nNovember 13, 2012.\r\n

\r\n

\r\nThe complaint alleged that the CRD was violating the Shore\r\nProtection Act (“the Act”) by issuing letters of permission for\r\nconstruction activities that, under the Act, require a permit. OCGA\r\n§ 12-5-230 et seq. Pursuant to OCGA § 12-5-237,\r\n<\/p>\r\n

\r\n

\r\n(a) No person shall construct or erect any structure or construct,\r\nerect, conduct, or engage in any shoreline engineering activity\r\n\r\n<\/a>\r\n or\r\nengage in any land alteration which alters the natural topography or\r\nvegetation of any area within the jurisdiction of this part, except\r\nin accordance with the terms and conditions of a permit therefor\r\nissued in accordance with this part. A permit may authorize the\r\nconstruction or maintenance of the project proposed in an\r\napplication. After construction of a project pursuant to a permit,\r\nthe project may be maintained without a permit so long as it does\r\nnot further alter the natural topography or vegetation of the site\r\nor increase the size or scope of the project.\r\n<\/p>\r\n

\r\n(b) No permit shall be required for a structure, shoreline\r\nengineering activity, or land alteration which exists as of July 1,\r\n1979, provided that a permit must be obtained for any modification\r\nwhich will have a greater adverse effect on the sand-sharing system\r\nor for any addition to or extension of such shoreline engineering\r\nactivity, structure, or land alteration; provided, further, that, if\r\nany structure, shoreline engineering activity, or land alteration is\r\nmore than 80 percent destroyed by wind, water, or erosion as\r\ndetermined by an appraisal of the fair market value by a real estate\r\nappraiser certified pursuant to Chapter 39A of Title 43, a permit is\r\nrequired for reconstruction.\r\n<\/p>\r\n<\/blockquote>\r\n

\r\nIn order to obtain a permit, an applicant must comply with myriad\r\nrequirements, which includes providing the names and addresses of\r\nall landowners whose property adjoins or abuts the parcel of land.\r\nSee, e.g., OCGA § 12-5-238. The permit is then submitted to a\r\nShore Protection Committee, which is comprised of the Commissioner\r\nof the DNR and four others.2<\/sup><\/small> OCGA §\r\n12-5-235(a) & (b). The interested parties and adjoining landowners\r\nare provided notice of the proposed action before any permit is\r\ngranted. See OCGA § 12-5-239(b). In determining whether to\r\ngrant the permit, the granting authority must consider whether the\r\nproposed action is unreasonably harmful; whether completion of the\r\nproject will unreasonably interfere with conservation of marine life\r\nor wildlife; and whether completion of the project will unreasonably\r\ninterfere with public access and enjoyment of public properties.\r\nOCGA § 12-5-239(i).\r\n<\/p>\r\n

\r\nAlthough the Act does not contain any provision for circumventing\r\nthe permit process,3<\/sup><\/small> [734 S.E.2d 208] the\r\nCRD often issues letters of permission for certain requests without\r\nrequiring the applicant to formally seek a permit. Such letters of\r\npermission have allowed petitioners to take actions ranging from the\r\nrebuilding of houses and drainage systems, to the construction of a\r\nfilm set. The Center sought injunctive relief and declaratory\r\njudgment stating that the issuance of letters of permission were\r\nultra vires acts. The Center also asserted claims for equal\r\nprotection violations, due process violations, and attorney fees.\r\n<\/p>\r\n<\/blockquote>\r\n

\r\nSo it looks like GA-DNR by convention frequently circumvents state law\r\nto issue permits without due process,\r\nand the Center has objected in at least two court cases.\r\n

\r\nAccording to\r\n\r\nthe Association of County Commissioners of Georgia (ACCG)<\/a>,\r\nnonetheless at least one other case, while citing one of the Center’s\r\nlosses, has successfully gotten around sovereign immunity:\r\n

\r\n

\r\n\r\nCity of Hapeville v. Grady Memorial Hospital Corporation\r\n<\/strong>\r\n
\r\nGeorgia Court of Appeals\r\n
\r\nAugust 18, 2014; A14A0724\r\n

\r\nThis case involves the issues of sovereign immunity and the failure\r\nto pay for medical services rendered to inmates in the custody of\r\ncity. A hospital sued the city seeking payment for treatment of four\r\nprisoners transported by the city to the hospital. The Court of\r\nAppeals found that the trial court correctly determined that\r\nO.C.G.A. 42-5-2(a) waived sovereign immunity. Interestingly, the\r\nCourt works around the seeming limitation of the Center for a\r\nSustainable Coast<\/em> case and states that express waiver words are not\r\nnecessarily required and that an express statutory waiver can occur\r\nif a statute creates a right of action against the state which can\r\nresult in a money judgment and the state would otherwise have\r\nenjoyed sovereign immunity. Otherwise, the legislative act would\r\nhave no meaning. The wording of the statute in this case meets this\r\ntest. Since municipal sovereign immunity is provided in O.C.G.A.\r\n36-33-1, et seq., the court notes the waiver under O.C.G.A. 42-5-2\r\nalso includes municipalities because O.C.G.A. 42-5-2(b) covers\r\ninmates to whom O.C.G.A. 42-4-1, et seq. applies, thereby including\r\ninmates held by cities.\r\n<\/p>\r\n<\/blockquote>\r\n

\r\nApparently if you can find a statute that doesn’t expressly waive\r\nsovereign immunity yet can be interpreted as creating a right of action\r\nanyway, you can successfully sue.\r\n

\r\nThe next obvious step is a bill to clarify the law.\r\n

\r\nBack to House Judiciary Chair Willard in the Daily Report:\r\n

\r\n

\r\nWillard said the Legislature must act, as it did years ago when it\r\nwaived sovereign immunity in tort cases against state officers and\r\nemployees, because the high court laid out an alternative that would\r\nbe worse. He cited the Sustainable Coast opinion, written by Justice\r\nCarol Hunstein, which stated, aggrieved citizens may “seek relief\r\nagainst such [state] officers in their individual capacities.”\r\n<\/p>\r\n

\r\n“What I don’t want is for us to put individuals working on behalf of\r\nthe state in the position of being sued as a way to get around the\r\nConstitution,” Willard said. “I don’t think we should have people\r\nexposed in that manner.”\r\n<\/p>\r\n<\/blockquote>\r\n

\r\nSo that’s how to get the legislature to act:\r\nget a court to say otherwise individual state employees might be liable….\r\n

\r\nWhen I discussed HB 59 with\r\n\r\nDavid Kyler, Executive Director<\/a> of the\r\nCenter for a Sustainable Coast, he expressed surprise that he\r\nwas named in a writeup about the bill, since he and the Center\r\nhad had nothing to do with drafting or submitting it.\r\nPresumably it was this paywall article by Dave Williams\r\nfor Atlanta Business Journal 23 January 2015,\r\n\r\nLegislation targets state\u2019s immunity from lawsuits<\/a>,\r\nwhich includes:\r\n

\r\n

\r\n“We want the courts to be able to entertain an action that says,\r\n‘The state is doing something wrong to me and I want it stopped,’ ”\r\nsaid Georgia Rep. Wendell Willard, R-Sandy Springs, the bill’s chief\r\nsponsor.\r\n<\/p>\r\n<\/blockquote>\r\n

\r\nSeems to me that would be a good thing if, for example,\r\nGA-DNR should approve a permit for Sabal Trail’s Albany compressor station\r\ndespite the many reasons not to expressed by for example\r\n\r\nTed Turner’s Nonami Plantation<\/a>\r\nand Greenlaw<\/a>,\r\nnot to mention the resolutions against Sabal Trail’s pipeline by\r\n\r\nfive Georgia counties and two cities<\/a>, including the ones by\r\nDougherty County and Albany that explicitly say they don’t want\r\nthat compressor station.\r\n

\r\n

\r\n\r\n\"Location<\/a>\r\n<\/p>\r\n

\r\n\r\n<\/a>\r\nIt would be a good thing if any state agency approves a permit for\r\n\r\nKinderMorgan’s Elba Island LNG Export project<\/a> on the Georgia coast,\r\nwhich quite possibly could, perhaps not coincidentally, get gas from Sabal Trail through\r\nexisting pipelines across Georgia.\r\nSabal Trail would go right by Auburn, AL, which you see marked on the KinderMorgan map below\r\nas on pipelines right across to Elba Island LNG. \r\n

\r\n\r\n\"Auburn,AL<\/a>\r\n

\r\nSeems to me the mere possibility of being sued might make a state\r\nagency think twice before rubberstamping a pipeline or LNG export\r\nterminal for corporations from some other state, such as Spectra Energy\r\nof Houston, Texas and FPL of Juno Beach, Florida for the Sabal Trail\r\npipeline, or KinderMorgan of Elk Grove Village, Illinois for Elba Island LNG export.\r\n

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