Georgia Amendment 2: Declaratory Relief from Certain Laws
Georgia’s Amendment 2 would waive the state’s sovereign immunity laws thus allowing residents to sue state or local governments if they believe a state or local law is unconstitutional. If a court agrees the law is unconstitutional, the law could be blocked but a declaratory relief decision would not change the law or award damages. If approved, the amendment would apply to all laws (current and future) beginning in 2021.
This amendment has no expected fiscal impact.
Proponents’ Argument For
Proponents argue that the amendment is needed because state residents cannot sue a local or state government to prevent unconstitutional actions. For example, if a citizen thinks a local government improperly steered a contract to a favored company, rather than having to complain to elected officials or file a complaint at the state, the citizen should be able to sue the local government and attempt to prove their allegation in court, proponents argue. Supporters say this would make local government more accountable to citizens.
Opponents’ Argument Against
There is no formal opposition to this amendment.
Most states have, in law, what is called “sovereign immunity,” which goes back to British law and protects local governments from citizen lawsuits over the constitutionality of their actions. States can choose to waive sovereign immunity but rarely do. Georgia’s sovereign immunity applies to both declaratory relief (determining a law is unconstitutional but not taking action) and injunctive relief (determining a law is unconstitutional and taking action to stop permanent enforcement of the law).
Between 1974 and 2014, Georgia residents were allowed to bring suit against a local or state government to stop an unconstitutional action. However, in late 2014, the state Supreme Court ruled that governments in Georgia can be sued only if they have waived sovereign immunity. Amendment 2 is largely a response to that state Supreme Court decision and aims to restore something similar to a citizens’ right to sue a local government that they enjoyed up to 2014. And if citizens win one of these lawsuits the court would be able to block unconstitutional local laws.
Improving local government accountability, especially when constitutional rights are involved, is a good thing. In this case, the concern is the possibility that Amendment 2 may lead to questionable lawsuits and inhibit government efficiency. For example, current Georgia Gov. Brian Kemp and former Gov. Nathan Deal have pointed out that “(w)hile the concept of sovereign immunity is simple on its face, it is complex in application.” But the government makes many things complex. Before 2014, Georgia citizens were allowed these kinds of lawsuits, and these problems were not insurmountable, or even severe, then.