February 27, 2014
On February 24, 2014, the Georgia Supreme Court issued a decision that will have significant ramifications for companies and individuals who litigate with Georgia state agencies and counties. While the state and its political subdivisions (i.e., counties) have traditionally enjoyed sovereign immunity as to damage claims, the Georgia Supreme Court had made it clear in Intl. Bus. Machines Corp. v. Evans, 265 Ga. 215, 453 S.E.2d 706 (1995) that suits seeking non-monetary equitable relief were exceptions to the State’s sovereign immunity.
Under IBM v. Evans, government contractors and others were able to obtain injunctive relief against state agencies and counties in order to restrain an illegal act. That all changed with the recent decision of Georgia Dep’t of Natural Res. v. Ctr. for a Sustainable Coast, Inc., S13G0602, 2014 WL 696487 (Ga. Feb. 24, 2014), which expressly overruled IBM v. Evans. The Supreme Court reasoned that IBM’s judicially-created “exception” to sovereign immunity was, in reality, a waiver of immunity that was barred by a 1991 amendment to the Georgia Constitution which reserved the exclusive power to waive sovereign immunity to the General Assembly. The Court suggested that citizens could still pursue equitable claims against public officers in their individual capacities, but noted that such claims may be barred by official immunity, which protects them from personal liability except in cases involving the negligent performance of ministerial acts or the performance of discretionary acts with the actual malice or actual intent to harm the plaintiff. Id. (citing See IBM v. Evans, 265 Ga. at 220-222 (Benham, P.J., concurring in part and dissenting in part)). The Court’s citation to Justice Benham’s concurrence is significant because he opined that official immunity might shield a public officer from a suit seeking purely equitable relief. To date, no Georgia appellate court has ever addressed that issue, but if it is now the law, a plaintiff seeking to enjoin a government action will have to show not only that it is unlawful, but also that the public officer acted with actual malice (i.e., deliberate intention to do wrong) or with actual intent to harm the plaintiff. See Ga. Const. of 1983, Art. I, Sec. II, Para. IX. A frustrated bidder, for example, would have to show that the purchasing director acted with actual malice or actual intent to harm before it could convince a court to enjoin an award of a contract that is in violation of bidding laws. This is a very difficult standard to meet and will likely result in even less judicial scrutiny over government operations.