CLOSE X
RSS Feed LinkedIn Instagram Twitter Facebook
Search:
FMG Law Blog Line

Posts Tagged ‘Georgia General Assembly’

Georgia General Assembly Passes Waiving Sovereign Immunity for Certain Claims

Posted on: April 11th, 2019

By: William J. Linkous, III

For the second time in recent years the Georgia General Assembly has passed legislation waiving sovereign immunity for certain claims against the State, and against local governments. In 2016, then-Governor Deal vetoed a bill that waived sovereign immunity in specific circumstances on the grounds the waiver was too broad. This year, the General Assembly enacted HB 311, sponsored by Rep. Andy Welch (R-McDonough). The bill must be signed by Governor Kemp within 40 days for it to become law.

HB 311 contains an initial section waiving sovereign immunity for claims seeking declaratory or injunctive relief to remedy an injury in fact caused to an aggrieved person by the state, a state governmental entity, or an officer or employee in his or her official capacity in violation of a state statute, the Georgia Constitution, or the United States Constitution. The bill provides a list of exceptions to the waiver, including claims for monetary relief, attorneys’ fees, or expenses of litigation except as provided in O.C.G.A. § 9-15-14, claims brought in federal court, and claims brought by inmates in penal institutions.

The more interesting provisions of the bill for local government attorneys and officials are the provisions that apply to counties, municipalities, and consolidated governments. The bill would add new provisions found in O.C.G.A. §§ 36-80-50 to 36-80-56 which would waive sovereign immunity as to any claim brought by an aggrieved person in the superior courts of Georgia against counties, municipalities, and consolidated governments or entities relating thereto, or against an officer or employee thereof in his or her official capacity seeking declaratory or injunctive relief in certain circumstances. Those circumstances include (1) challenges to local ordinances, rules, and policies under the U.S. or Georgia constitutions, state statutes, or rules or regulations; (2) remedies to injuries in fact, or imminent threats thereof, of an aggrieved person of a local government, officer, or employee acting without lawful authority, beyond the scope of official power, or in violation of the U.S. or Georgia constitutions, state statutes, rules or regulations, or local ordinances other than zoning ordinances; and (3) remedies to injuries when the injury is related to the award of a proposed agreement with a local government or an officer of employee thereof.  Under category (3), suit must be filed within 10 days from the date that the award is made public.

The provisions relating to local governments also provide a similar list of exceptions to the waiver list for the state. The bill provides that it shall be narrowly construed and shall not alter or amend any other immunities nor any other requirements for filing suit. The bill contains provisions limiting liability for officers and employees in their individual capacities and discouraging suit against employees individually, and it will be interesting to see how those provisions interact with official immunity if the bill is signed into law. The bill also contains a provision prohibiting such suits until 30 days after notice is mailed to the local government providing notice of the claim. If the bill becomes law, this 30-day provision may be a stumbling block to litigants who wish to proceed immediately to a temporary restraining order upon an injunctive relief or declaratory judgment claim. Moreover, such suits cannot be filed later than 90 days after providing the notice. The bill also provides for waiver of sovereign immunity for claims of breach of contract by local governments.

The bill also provides for waiver in quiet title actions and also provides for immediate appeals for judgments, orders, or rulings denying or refusing to grant immunity to one or more parties based upon sovereign, official, qualified, or any other immunity.  However, only one immediate appeal is allowed.

It will be interesting to see whether the bill is signed into law, and if so the implications it will have on local government litigation.

If you have any questions or would like more information, please contact William Linkous at [email protected].

A Look Ahead to 2018 Legislative Session

Posted on: December 20th, 2017

By: Allan J. Hayes

The Georgia General Assembly will convene on January 8, 2018 and adjourn after 40 legislative days (usually the end of March). With 2018 being an election year, there is likely to be as much politicking, positioning and posturing as there is legislating during the second half of the 2017-2018 cycle. All statewide elected officials and all seats in the state House and State Senate are up for election in 2018. This generally means that no sweeping new policies will be passed this year.

Governor Deal (R) is term-limited, so the race for the office is open. Lt. Governor Cagle (R) is running for governor, so that office will be open as well. Many current and former legislators are campaigning to replace the Governor and the Lt. Governor, so both chambers are expected to adjourn early so everyone can campaign for their respective office.

But, as Speaker Ralston recently told a group of us, “regardless of elections, the people’s work must get done. And we will stay until it is finished.” This governor and legislature have worked well together in the past, and will likely work together on legislation that include the following (not in order of importance).

Every session, the most scrutinized piece of legislation is the state budget. According to the Georgia Constitution, it is the only issue the General Assembly must address each year. An increase in state revenue means lawmakers will have additional money to use in the 2018 fiscal year. At least some of that new money will go into education, which represents about half of the state budget. The health program for state employees and Medicaid are also likely to receive additional funds. And Lieutenant Governor Cagle wants the state to invest $100 million into venture capital for tech companies, a program he calls “Invest Georgia.” The state will also do what is necessary to continue funding of the Savannah Harbor Deepening Project.

The legislature will also consider spending for new rural development ideas like relocation tax incentives, rural broadband and healthcare funds to fight the opioid epidemic. Other healthcare related priorities include addressing rising health insurance premiums, including exploring association health plans and promoting the selling of insurance across state lines. Out-of-Network “Surprise Billing” or Balance Billing prohibitions is another major issue that will be tackled this session. The department of insurance may pursue ACA 1332 State Innovation Waivers to cover more Georgians and health insurance issues like air ambulance payments, cost-sharing Limits for prescription drugs, health insurance network adequacy standards, and medical marijuana will also be discussed.

The very contentious Religious Freedom Restoration Act has come up in each of the last two sessions of the legislature. Even with legislative leaders declaring it a “non-starter,” it will likely receive attention in the halls, if not on the floor. Last year a bill to modernize Georgia’s adoption laws which included the religious liberty provision was stalled. Legislative leaders have vowed to pass a “clean” adoption bill this year and the Governor has said he will sign it.  Additionally, there will be a bill introduced that would restrict local governments ability to ban short term residential rentals like Airbnb.

Another holdover from the 2017 session is Marsy’s Law, a proposed Constitutional Amendment securing permanent, enforceable rights for victims of crime. It passed the Senate and will be addressed in the House in 2018. Georgia’s certificate of need law for healthcare provider facilities is also a likely topic for debate. The Cancer Treatment Center of America is limited to 50 beds and a cap on in-state patients of 35 percent at their Georgia hospital and they support legislation to raise the 35 percent cap.

Finally, lawmakers are expected to debate two separate proposals that would boost pay for police and legislators. The Georgia Sheriffs’ Association is backing a one-cent sales tax to help fund a new mandatory minimum salary for deputy sheriffs and jailers, and legislators would see a 72 percent increase to their salaries under a proposal by a committee created earlier this year to review compensation for elected officials.

If you have any questions or would like more information, please contact Allan J. Hayes at [email protected].