Donaldson v. Department of Transp.

• Decision Date: 17 March 1992
• Docket Number: No. S91A1351,S91A1351
• Citation: 262 Ga. 49,414 S.E.2d 638
• Parties: DONALDSON, b/n/f, et al. v. DEPARTMENT OF TRANSPORTATION, et al.
• Court: Georgia Supreme Court

Page 638

414 S.E.2d 638

262 Ga. 49

DONALDSON, b/n/f, et al. v. DEPARTMENT OF TRANSPORTATION, et al.

No. S91A1351.

Supreme Court of Georgia.

March 17, 1992.

Samuel S. Olens, Richard Kopelman, Rand & Ezor, Atlanta, J. William Trunnell, Jr., Trunnell & Associates, Warner Robins, for Donaldson, b/n/f, et al.

Michael J. Bowers, Atty. Gen., Eric A. Brewton, Asst. Atty. Gen., Atlanta, for Dept. of Transp., et al.

Charles M. Richards, Asst. Atty. Gen., Atlanta.

Tony Center, Atlanta, William S. Stone, William S. Stone, P.C., Blakely, Craig T. Jones, Clark & Smith, P.C., Atlanta, James D. Hollingsworth, Decatur, for amicus curiae.

William O. Carter, Hartwell.

CLARKE, Chief Justice.

This is an appeal from an order dismissing an action against the Department of Transportation (DOT) on the grounds of sovereign immunity. Appellants contend that sovereign immunity was waived in this case to the extent of insurance because the 1991 amendment to the Georgia Constitution which eliminated the insurance waiver was not properly ratified. On review, we conclude that the ratification of the 1991 amendment to Art. I, Sec. 2, Para. IX of the Constitution of Georgia is not invalid for any of the reasons cited by appellants, but that the changes in the constitutional provision do not apply to this case. We therefore reverse.

Billy Donaldson, Jr. was a passenger in a car accident. He and his father filed suit against the drivers of the vehicles involved, the DOT, and an employee of the DOT, William Durrence. The negligence action against the two drivers was settled. The remaining counts of the complaint allege negligent alignment of a driveway by the DOT and its employee.

The DOT filed a motion to dismiss, asserting the defense of sovereign immunity. The trial court granted the motion, citing Art. I, Sec. 2, Para. IX of the Georgia Constitution. This section of the Georgia Constitution was amended in 1991 to extend sovereign immunity to all state departments and agencies, regardless of any insurance.

1. Appellants contend that the constitutional amendment was not properly ratified by the voters. In support of their argument, they cite the following background of the 1991 amendment: In Price v. Department of Transportation, 257 Ga. 535, 361 S.E.2d 146 (1987), and Martin v. Georgia Department of Public Safety, 257 Ga. 300, 357 S.E.2d 569 (1987), this court held that sovereign and official immunity in tort actions were waived to the extent that state agencies or employees were covered by insurance. In 1988, a constitutional amendment curtailing the "insurance waiver" of sovereign immunity was not ratified by the voters. The question submitted to the voters was:

Shall the Constitution be amended so as to provide for sovereign and official immunity and to provide for the circumstances and procedures under which such immunity shall be waived and to provide the General Assembly with certain authority to enact laws relating to sovereign and official immunity?

The voters disapproved of the proposed amendment by a vote of 70.6%. Two years later a similar amendment was presented to the voters for ratification. This time the ballot language read:

Shall the Constitution be amended to provide that the General Assembly may authorize lawsuits against the state and its departments, agencies, officers, and employees and to provide how public officers and employees may and may not be held liable in court?

The amendment was adopted by 53.11% of the voters. Appellants argue that the ballot language on the 1990 ballot was misleading. Appellants point out that under the existing constitutional provisions, the General Assembly already had the authority to enact a state tort claims act and to provide for waiver of sovereign immunity. They argue that the 1990 ballot language would lead the average voter to believe that there was no current constitutional provision to waive sovereign immunity and that a "yes" vote would increase state liability. Further, the 1990 ballot language does not mention the terms "sovereign immunity" or "official immunity," does not indicate that the amendment restricts suit even where insurance is provided, and provides no new powers to authorize suit. Therefore, appellants argue, the ballot language was affirmatively misleading and violated the voters' substantive due process right to vote. The amendment was not actually "submitted" to the voters and was not properly ratified.

Although appellants' arguments have strong initial appeal, they must ultimately fail. Art. 10, Sec. 1, Para. 2 of the Georgia Constitution and OCGA § 21-1-2 prescribe the procedures for amending the constitution. A proposal for amendment must be approved by two thirds of the members of the Senate and House of Representatives. It must then be ratified by popular vote. "The language to be used in submitting a proposed amendment or a new Constitution shall be in such words as the General Assembly may provide in the resolution, or, in the absence thereof, in such language as the Governor may prescribe." Art. 10, Sec. 1, Para. 2 of the Georgia Constitution. The only limitation on the General Assembly in drafting ballot language is that the language be adequate to enable the voters to ascertain which amendment they are voting on. Sears v. State, 232 Ga. 547, 208 S.E.2d 93 (1974).

Georgia formerly had a statute that required ballot language to enable the voter to "pass intelligently" on the proposed amendment. 1939 Ga.Laws 305. That statute was repealed in 1962. 1962 Ga.Laws 620. Since the statute was repealed, this court has conducted only a minimal review of ballot language if the state followed all of the constitutionally and statutorily required procedures for amending the constitution, including printing, publicizing and distributing the amendment. Pye v. State Highway Department, 226 Ga. 389, 175 S.E.2d 510 (1970); see also Art. 10, Sec. 1, Para. 2 of the Georgia Constitution and OCGA § 21-1-2.

Although we believe that the legislature should in every instance strive to draft ballot language that leaves no doubt in the minds of the voters as to the purpose and effect of each proposed constitutional amendment, there are several reasons for limiting the scope of our review. First, constitutional amendments are often complex. Any summary of the proposal may be subject to various interpretations. Even the legislators who sponsor an amendment may not agree on the purpose and effect of a particular amendment. Moreover, the court must trust the people and the political process to determine the contents of the Constitution. We must presume that the voters are informed on the issues and have expressed their convictions in the ballot box.

There is no dispute in this case that the full text and a summary of the amendment were published in accordance with state law and were made available to the voters to read and discuss prior to the election. Therefore, our only task is to determine whether the ballot language was sufficient to indicate which amendment was being voted on. The language at issue here undoubtedly meets that test. Compare Sears and Pye, supra. Further, careful comparison of the amendment and the ballot language reveals that the ballot language at issue here is not inaccurate or "affirmatively misleading" as appellants allege. If it is misleading at all, it is only because of the information that is left out--not the information that was included in the ballot text. We decline to invalidate the ratification of a constitutional amendment on the grounds that the ballot language was not complete enough or did not include enough of the history of the amendment.

It is notable that this amendment's predecessor withstood a challenge to its ratification in which plaintiffs argued that the ballot language did not inform the electorate that they were adopting the doctrine of state sovereign immunity without any guarantee that the General Assembly would act on its power to enact a tort claims act. Clark v. State, 240 Ga. 188, 240 S.E.2d 5 (1977). In his dissent, Justice Hill asked "For what purpose are the people asked to adopt amendments to the Constitution which, after approval, are neglected and hence remain as if never passed? Although the people expressed their approval of the creation of a Court of Claims in 1974, no such court has yet been created." He further lamented that the ballot language that gave the General Assembly the power to create a Court of Claims did not inform the voters that the amendment also paralyzed the doctrine of sovereign immunity. Id. at 189, 240 S.E.2d 5.

Sovereign immunity protects the public treasury at the expense of the injured plaintiffs. The true cost of sovereign immunity, however, is the public perception that the government does not care about the victims of its negligence and does not hold itself to the same standards that it requires of its citizens. But it is the people, not the court, who must decide whether the cost of sovereign immunity is too high. We cannot second-guess what the voters understood or intended in casting their votes in favor of the amendment. Finally, it is not certain that the effect of the 1991 amendment will be to augment the government's protection under sovereign immunity. It may indeed stimulate the passage of a tort claims act.

2. Appellants next argue that the ballot language violated a fundamental federal constitutional right to vote and right not to be deceived in the ballot box. Appellants cite two federal district court cases that state that federal constitutional due process requires that "voters may not be misled to the extent that they do not know what they are voting for or against." Burger v. Judge, 364 F.Supp. 504 (U.S.D.C.Mont.1973); Kohler v. Tugwell, 292 F.Supp. 978 (U.S.D.C.La.1969). This is, in essence, the same test that we have applied above. Moreover, we note that in both of these cases the federal courts placed emphasis on the voters' responsibility to...