Pass v. Athens Hous. Auth.

• Docket Number: A23A0344
• Decision Date: 27 June 2023
• Citation: Pass v. Athens Hous. Auth., 368 Ga.App. 445, 890 S.E.2d 342 (Ga. App. 2023)
• Parties: PASS v. ATHENS HOUSING AUTHORITY a/k/a Housing Authority of the City of Athens.
• Court: Georgia Court of Appeals

368 Ga.App. 445

890 S.E.2d 342

PASS v. ATHENS HOUSING AUTHORITY a/k/a Housing Authority of the City of Athens.

A23A0344

Court of Appeals of Georgia.

June 27, 2023

Naveen Ramachandrappa, Peter Andrew Law, Atlanta, Ernest Michael Moran, Elizabeth Anne Rose Rose, Matthew R. Sellers, Atlanta, for Appellant.

Monica R. Dean, Laurie Webb Daniel, Tawana Blocker Johnson, Atlanta, Roy Edward Manoll III, Athens, Parks Kalervo Stone, Lawrence Lee Washburn IV, Matthew D. Friedlander, Atlanta, for Appellee.

Hodges, Judge.

Keyron Pass sued the Athens Housing Authority, also known as the Housing Authority of the City of Athens (the "Housing Authority"), in a premises-liability, nuisance, and negligence action, asserting that a tenant of the Housing Authority shot him four times at close range at the Nellie B apartments, which the Housing Authority owns and operates. The Housing Authority filed a motion to dismiss, arguing that its sovereign immunity precluded the trial court from exercising subject matter jurisdiction. After a hearing, the trial court granted that motion, finding that the Housing Authority was a department or agency of the State protected by sovereign immunity, and that the General Assembly had not waived that immunity. Pass appealed, arguing that the trial court erred in dismissing his claims. For the reasons that follow, we reverse.

"We review de novo a trial court's ruling on a motion to dismiss based on sovereign immunity grounds, which is a matter of law." (Citation and punctuation omitted.) Campbell v. Cirrus Education, Inc. , 355 Ga. App. 637, 641 (2), 845 S.E.2d 384 (2020) ; see also James v. Ga. Dept. of Public Safety , 337 Ga. App. 864, 867 (2), 789 S.E.2d 236 (2016) (holding that a trial court, when considering a motion for lack of subject matter jurisdiction based upon sovereign immunity," is not confined to the allegations of the complaint ... [and] may receive evidence and make relevant factual findings" to determine whether it has subject matter jurisdiction).

[S]overeign immunity was initially incorporated into the Georgia Constitution of 1945 by an amendment ratified in 1974. Our Constitution did not create sovereign immunity; instead, it incorporated sovereign immunity into the common law .... [T]hough the relevant text of our State Constitution regarding sovereign immunity has undergone certain revisions leading up to its current form in the Georgia Constitution of 1983 as amended in 1991, those provisions generally address only the waiver of sovereign immunity.

City of College Park v. Clayton County , 306 Ga. 301, 305 (1) (a), 830 S.E.2d 179 (2019). Further, "we have consistently recognized that sovereign immunity, as it exists in Georgia, is a continuation of English common law as it ws understood in Georgia at the time it became part of our State Constitution." Id. at 307 (1) (b), 830 S.E.2d 179.

As noted above, in 1991, the Georgia Constitution of 1983 was amended. As our Supreme Court has stated,

a majority of voters approved a constitutional amendment that provides for the waiver of the state's sovereign immunity through legislative acts. The amendment provides: (a) The General Assembly may waive the state's sovereign immunity from suit by enacting a State Tort Claims Act, in which the General Assembly may provide by law for procedures for the making, handling, and disposition of actions or claims against the state and its departments, agencies, officers, and employees, upon such terms and subject to such conditions and limitations as the General Assembly may provide.... (e) Except as specifically provided in this Paragraph, sovereign immunity extends to the state and all of its departments and agencies. The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.

Miller v. Georgia Ports Authority , 266 Ga. 586, 586-587, 470 S.E.2d 426 (1996), citing Ga. Const. Art. I, Sec. II, Para. IX ; accord Cameron v. Lang , 274 Ga. 122, 126 (3), 549 S.E.2d 341 (2001) ("The doctrine of sovereign immunity, also known as governmental immunity, protects all levels of governments from legal action unless they have waived their immunity from suit.") (emphasis supplied). Sovereign immunity extends to "all state departments and agencies, regardless of insurance[,]" Miller , 266 Ga. at 588 (1), 470 S.E.2d 426 ; likewise, "sovereign immunity applies to state instrumentalities[.]" Kyle v. Georgia Lottery Corp. , 290 Ga. 87, 88 (1), 718 S.E.2d 801 (2011). ¹

As will be discussed more fully below, sovereign immunity has been applied to the state lottery corporation, the Georgia Ports Authority, a statewide charter school corporation, a multi-county community service board, and a single-county building authority, among others. Our Constitution, however, does not define what entities constitute "the state and all of its departments and agencies." Nor does it define "instrumentalities."

It is helpful, at the outset, to examine how our appellate courts’ analysis of the question of how to determine which entities are state departments, agencies, or instrumentalities has evolved over time. In Miller , the Supreme Court of Georgia examined the 1945 act that created the Ports Authority, the powers granted to the Ports Authority, and the public purpose and responsibilities of the Ports Authority to determine whether it was an agency or department of the State entitled to sovereign immunity, concluding that it was entitled to immunity because it was a State administrative unit responsible for the State's docks. 266 Ga. at 587-588, 470 S.E.2d 426. In Youngblood v. Gwinnett Rockdale Newton Community Svc. Bd. , 273 Ga. 715, 545 S.E.2d 875 (2001), the Supreme Court considered whether a community service board was protected by sovereign immunity. As in Miller , the Youngblood Court examined "the law creating and defining community service boards" and the "public purpose" that such boards serve of providing mental health care and services to Georgia citizens. The Supreme Court additionally mentioned this board's geographic service area – "multi-county" – and noted that it was "publicly funded[,]" although it did not address what public entity provided the funding; the Court then determined that the community service board was a "state department or agency" that could claim sovereign immunity. Id. at 716 (1), 545 S.E.2d 875.

In Kyle , the Supreme Court considered whether the Georgia Lottery Corporation was entitled to assert sovereign immunity. As in Miller and Youngblood , the Court again looked at the legislation creating the lottery corporation and its purpose of marketing and selling lottery tickets to benefit the State's educational system. Kyle , 290 Ga. at 91 (1), 718 S.E.2d 801. The Court then continued to expand its analytical methodology by examining the Code sections related to the lottery corporation for indicia of the organization's management, governance, and funding. Those Code sections provide that the lottery corporation is governed by a board of directors "appointed by the Governor," that its "net proceeds are distributed directly to the State Treasury[,]" and that it is "accountable to the General Assembly and the public through a system of audits and reports." (Citations and punctuation omitted.) Id. As a result, the Kyle Court found, "the purpose, function, and management of the [Georgia Lottery Corporation] are indelibly intertwined with the State in a manner that qualifies it for the protection of sovereign immunity as a State instrumentality." Id., citing Miller , supra.

More recently, our Court in Campbell found that a charter school corporation was entitled to sovereign immunity. In so doing, this Court cited both Miller , 266 Ga. at 586, 470 S.E.2d 426, and Kyle , 290 Ga. at 90-91 (1), 718 S.E.2d 801, finding that "[u]nder a Miller analysis, courts are to examine (1) the legislation creating the entity, and (2) the public purposes for which it was created." Campbell , 355 Ga. App. at 642 (2), 845 S.E.2d 384. As in the earlier Supreme Court cases, however, this Court additionally discussed the charter school's geographic service area, recognizing that it had a "state-wide attendance zone," and discussed the authority which created it, noting that it "operates as a public school under a charter that was approved by the State Charter Schools Commission...." Id. at 638, 845 S.E.2d 384. The Campbell Court further examined how the charter school was financed and regulated, noting that "[f]unding for state charter schools is subject to appropriations by the General Assembly[,]" and that charter schools are regulated by the State Charter Schools Commission, which had the authority to approve and deny charter school petitions and terminate charter school contracts. Id. at 642 (2), 845 S.E.2d 384. Following this analysis, the Campbell Court found that "the purpose, function, and management of [the charter school was] indelibly intertwined with the State in a manner that qualifies it for the protection of sovereign immunity as a State instrumentality." Id., citing Kyle , 290 Ga. at 91 (1), 718 S.E.2d 801.

In its appellate brief, the Housing Authority argues that we should limit the ultimate basis of our analysis to the Supreme Court's Miller factors, as identified in this Court's Campbell opinion — that is, "(1) the legislation creating the entity, and (2) the public purposes for which the entity was created." 355 Ga. App. at 642 (2), 845 S.E.2d 384. The Housing Authority contends that this Court in Campbell "refused to adopt" the methodology employed in Kyle , in which the Supreme Court also examined whether the lottery corporation's governance was controlled by the State or a local entity, whether it was accountable to the State, and whether its finances were independent from or connected to the State. First, our Court is not...