Lathrop v. Deal

• Decision Date: 19 June 2017
• Docket Number: S17A0196
• Citation: 801 S.E.2d 867
• Parties: LATHROP et al. v. DEAL et al.
• Court: Georgia Supreme Court

301 Ga. 408

801 S.E.2d 867

LATHROP et al.

v.DEAL et al.

S17A0196

Supreme Court of Georgia.

Decided: June 19, 2017

Donald Franklin Samuel, Garland, Samuel & Loeb, P.C., Atlanta, GA, Alexa Kolbi–Molinas, Susan Talcott Camp, American Civil Liberties Union Foundation, New York, NY, for Appellants.

Dennis R. Dunn, Chief Deputy Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Victoria Cuneo Powell, Assistant Solicitor–General, Sarah Hawkins Warren, Solicitor–General, Department of Law, Atlanta, GA, for Appellees.

Ronan Patrick Doherty, Manoj Sam Varghese, Michael Rosen Baumrind, Bondurant Mixson & Elmore LLP, Atlanta, GA, for Amicus Appellant.

Blackwell, Justice.

Simply put, the constitutional doctrine of sovereign immunity forbids our courts to entertain a lawsuit against the State without its consent. In Georgia Dept. of Natural Resources v. Center for a Sustainable Coast , 294 Ga. 593, 602, 755 S.E.2d 184 (2014), we held that the doctrine extends to suits for injunctive relief, and in Olvera v. University System of Ga. Board of Regents , 298 Ga. 425, 428 n.4, 782 S.E.2d 436 (2016), we held that it likewise extends to suits for declaratory relief. But those decisions involved no constitutional claims, and since Sustainable Coast , we have not had occasion to consider whether the doctrine of sovereign immunity extends to claims for injunctive or declaratory relief that rest upon constitutional grounds. See State of Ga. v. Intl. Keystone Knights of the Ku Klux Klan , 299 Ga. 392, 395 n.11, 788 S.E.2d 455 (2016). In this case, we are confronted squarely with that question. We hold today that the doctrine of sovereign immunity extends generally to suits against the State, its departments and agencies, and its officers in their official capacities for injunctive and declaratory relief from official acts that are alleged to be unconstitutional. In so holding, however, we recognize the availability of other means by which aggrieved citizens may obtain relief from unconstitutional acts, including prospective relief from the threatened enforcement of unconstitutional laws.

I.

This case began in 2012, not long after the adoption of House Bill 954,¹ which concerns medical procedures for the termination of pregnancies. Among other things, House Bill 954 requires a physician in most circumstances to ascertain the "probable gestational age of the unborn child" before performing an abortion,² see Ga. L. 2012, p. 575, § 3 (codified at OCGA § 31–9B–2 ), and it forbids a physician to perform an abortion when the probable gestational age has been determined to be 20 weeks or more, unless the pregnancy is "medically futile" or the abortion is necessary to "[a]vert the death of the pregnant woman," "avert [a] serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman," or "[p]reserve the life of an unborn child." See Ga. L. 2012, p. 575, § 2 (codified at OCGA § 16–12–141 (c) (1) ). In the limited circumstances in which an abortion is permissible notwithstanding a determination that the probable gestational age is 20 weeks or more, a physician must perform the abortion by means that offer "the best opportunity for the unborn child to survive," unless those means would pose an increased risk to the woman undergoing the procedure of "death [or] substantial and irreversible physical impairment of a major bodily function." See Ga. L. 2012, p. 575, § 2 (codified at OCGA § 16–12–141 (c) (2) ). House Bill 954 provides that, after an abortion or attempted abortion, a physician must file a report of the procedure with the Department of Public Health, see Ga. L. 2012, p. 575, § 3 (codified at OCGA § 31–9B–3 (a) ), and it preserves preexisting law that makes hospital and licensed health facility records concerning abortion procedures available to a district attorney.³ See Ga. L. 2012, p. 575, § 2 (codified at OCGA § 16–12–141 (d) ). Except as permitted by statutory law (including House Bill 954), the performance of an abortion is a felony. See Ga. L. 2012, p. 575, § 2 (codified at OCGA § 16–12–140 ).

Eva Lathrop, Carrie Cwiak, and Lisa Haddad are physicians licensed to practice in Georgia. They practice in the fields of obstetrics and gynecology, and as a part of their practice, they sometimes perform abortions. In November 2012, just weeks before House Bill 954 became generally effective,⁴ they filed a petition in the Superior Court of Fulton County against Governor Nathan Deal and nineteen other state officers in their official capacities.⁵ In their petition, the plaintiff-physicians alleged that House Bill 954 violates the state constitution in several respects.⁶ First, they said, the limitations of the circumstances in which an abortion may be performed and the means by which certain abortions may be performed violate their patients' constitutional right of privacy, as guaranteed by the Due Process Clause of the Constitution of 1983 (Art. I, Sec. I, Par. I ), the Freedom of Conscience Clause (Art. I, Sec. I, Par. III ), and the Inherent Rights Clause (Art. I, Sec. I, Par. XXIX ). Second, the preservation of preexisting law that makes abortion records accessible by a district attorney, they alleged, violates their patients' right of privacy, as well as the Equal Protection Clause of the Constitution of 1983 (Art. I, Sec. I, Par. II ). Finally, House Bill 954 violates the Due Process Clause, they claimed, because it attaches criminal penalties to violations of statutory requirements that are vague and uncertain. Based on these allegations, the plaintiff-physicians sought a declaratory judgment that certain provisions of House Bill 954 are unconstitutional, and they sought injunctive relief to restrain the defendant-state officers from enforcing House Bill 954.

For the next year or so, the parties litigated various issues relating to the merits of the petition.⁷ Then, in February 2014, we issued our decision in Sustainable Coast . Soon thereafter, the defendant-state officers filed a motion to dismiss, asserting that the claims against them in their official capacities for declaratory and injunctive relief amount to claims against the State itself, and under Sustainable Coast , those claims are barred by the doctrine of sovereign immunity. The plaintiff-physicians responded that Sustainable Coast did not involve constitutional claims, and they urged that claims for declaratory and injunctive relief from state action that is alleged to be unconstitutional are not barred by sovereign immunity. In October 2015, the trial court granted the motion to dismiss, and the plaintiff-physicians appeal from the dismissal of their petition.⁸

II.

A.

The doctrine of sovereign immunity has been a part of our law for more than 230 years. By the time of the War for American Independence, the doctrine was "imbedded in the common law of England." Crowder v. Ga. Dept. of State Parks , 228 Ga. 436, 439 (3), 185 S.E.2d 908 (1971). See also W. Blackstone, 1 COMMENTARIES ON THE LAWS OF ENGLAND at 235–237 (1^st ed. 1765). After the war was concluded, Georgia adopted the common law of England as our own,⁹ see Tift v. Griffin , 5 Ga. 185, 189 (1848), and with it, we adopted the doctrine of sovereign immunity.¹⁰ See Crowder , 228 Ga. at 439 (3), 185 S.E.2d 908. See also Gilbert v. Richardson , 264 Ga. 744, 745, 452 S.E.2d 476 (1994) ; Hennessy v. Webb , 245 Ga. 329, 329, 264 S.E.2d 878 (1980). Following its early adoption, the doctrine would persist in Georgia as a matter of common law for nearly two centuries. See Crowder , 228 Ga. at 440 (3), 185 S.E.2d 908.

At common law, the doctrine of sovereign immunity was broad. The State "could not, without its own express consent, be subjected to an action of any kind." Peeples v. Byrd , 98 Ga. 688, 693–694, 25 S.E. 677 (1896) ("It is hardly necessary to cite authority for the proposition that a sovereign State is not liable to suit at the instance of a citizen, unless permission to sue has been expressly granted."). See also Eibel v. Forrester , 194 Ga. 439, 441–442, 22 S.E.2d 96 (1942) ("Without its consent the State can not be sued at all."); Roberts v. Barwick , 187 Ga. 691, 694, 1 S.E.2d 713 (1939) ("[T]he State can not by the courts be required to submit to being sued against its express consent."); Western Union Tel. Co. v. Western & A. R. Co. , 142 Ga. 532, 535, 83 S.E. 135 (1914) ("[T]he State can not be sued, or subjected to an action of any kind, without special legislative authority."); Brunswick & A. R. Co. v. State of Ga. , 48 Ga. 415, 418 (1873) ("The State cannot, against the will of the Legislature, be compelled to submit its liabilities to its own Courts."); Printup v. Cherokee R. Co. , 45 Ga. 365, 367 (1872) ("[T]he State cannot be made a party to this suit against or without her consent...."). Most commonly, the doctrine was employed to bar suits for damages and other monetary relief. See, e.g., Roberts , 187 Ga. at 695–696 (2), 1 S.E.2d 713 (suit for failure of State to pay amounts owed under leases).

Even so, notwithstanding the popular, contemporary notion that sovereign immunity is principally about the protection of the public purse, see, e.g., Martin v. Dept. of Public Safety , 257 Ga. 300, 301, 357 S.E.2d 569 (1987), the doctrine at common law was understood more broadly as a principle derived from the very nature of sovereignty. See Gilbert , 264 Ga. at 749, n.7 (4), 452 S.E.2d 476 ("Historically, governmental or sovereign immunity was justified as a recognition that it was a contradiction of the sovereignty of the king to allow him to be sued as of right in his own courts."). See also Roberts , 187 Ga. at 694 (1), 1 S.E.2d 713 ("The sovereignty of the State is supreme, and to maintain that sovereignty[,] the supremacy must also be maintained, and to do that the State must never be subjected to suit without its expressed consent."); Kawananakoa v. Polyblank , 205 U.S. 349, 353, 27 S.Ct. 526, 51 L.Ed....