By Bruce Fein and Stephen Humphreys
What if a 400-pound blogger, straining the bedsprings in his parents’ New Jersey basement, authoritatively announced that superannuated laws of the Confederate States of America superseded definitive decisions of the United States Supreme Court and immunized state statutes from judicial review? You’d think, “Fake news, a prank.”
But what if the Georgia Supreme Court announced the same result, based on the same authority, in a unanimous opinion? You’d be even more incredulous. After all, state judges are required to defend and support the United States Constitution under the Supremacy Clause, not to nullify it. General Robert E. Lee surrendered to General U.S. Grant at Appomattox Courthouse, not vice versa.
But in June of 2017 (A.D., just to be clear on the era), the incredulous happened. Georgia’s highest court held that sovereign immunity barred a constitutional challenge to a state statute imposing criminal liability on obstetricians for therapeutic abortions. The decision marked a stunning departure from precedent permitting constitutional challenges to state action based on due process.
The Georgia Supreme Court anchored its holding to a provision in the Georgia Constitution of 1861 adopted in the wake of the state’s ordinance of succession. Paragraph 17 of Article I provided: “Legislative Acts in violation of the fundamental law are void; and the Judiciary shall so declare them.” According to Georgia’s most exalted jurists, this language meant Georgia courts were not empowered to declare statutes unconstitutional.
That, of course, is humoring the Georgia justices to assume Confederate law controls, contrary to the U.S. Supreme Court holding in Texas v. White and companion cases that the Confederate States of America never achieved legal standing in the eyes of the U.S. Constitution. More importantly, Marbury v. Madison established the doctrine of judicial review of legislation to insure obedience to the Constitution as a separation of powers imperative. Finally, in Chisolm v. Georgia, U.S. Supreme Court Justices who were present at the creation of the republic voted 4-1 that neither common law nor the Constitution barred suits against a state under the doctrine of sovereign immunity. Indeed, the American Revolution was fought to repudiate the Blackstone tyranny that the king can do no wrong and cannot even entertain a wrongful thought.
State immunity is an instrument of injustice that has no place in any civilized legal system. The immunity effectuates a taking of a citizen’s cause of action without compensation to advance a generalized public interest in the fearless execution of the laws. But if the public benefits from the immunity, the public should pay just compensation through taxes for the injuries the government inflicts in providing that public benefit. If the State takes real property or tangible personal property for public use, just compensation is constitutionally required under the Fifth or Fourteenth Amendments. Why should the case be different when the State takes intangible personal property, i.e., a chose in action which may be even more valuable, under the banner of sovereign immunity?
Consider this cavalcade of injustices that has been perpetrated under that banner in Georgia:
A Georgia State trooper was sued for sexually molesting a female motorist during a traffic stop. If he was on duty wearing his uniform he was cloaked with immunity, according to the Georgia judiciary.
A State college official cannot be sued for the rape of a college student.
A State supervisor conducted a 13-month campaign of sexual harassment of a female subordinate, and threatened to kill her dog and stuff it in her mailbox when she reported his knavery. Immunity protected his outrageous abuse of power.
In 2014, the Georgia Supreme Court ruled that the state agency charged with managing the coastal environment could not be enjoined to follow the coastal management laws the agency is charged with enforcing. Sovereign immunity shielded lawlessness.
State Agriculture Department inspectors took bribes to falsely calibrate gas pumps. Georgia motorists paid for gas they never received, and nearby stations were closed because they could not compete. The corrupt calibrators were held immune because they were performing their “inspection functions” on behalf of the state.
Under that reasoning, a Governor who ordered a state agency to rescind a state contract with a political rival and award it to his own cronies, in exchange for a bribe, would likewise be immune from suit.
As Russian President Vladimir Putin has been derided for his party of crooks and thieves, Georgia’s government may soon be similarly disparaged for housing felons.
The Georgia Supreme Court turned a deaf ear to a case challenging the immunity of state officials from civil RICO suits for misusing power to commit felonies. Georgia’s highest jurists merely declined to hear the case against state officials for falsifying state agency records to conceal the theft of $9 million from Georgia Perimeter College. One of us was the attorney for the plaintiff in that lawsuit.
Article IV, section 4 of the United States Constitution guarantees to every state a “republican form of government.” But the state immunity decisions of the Georgia Supreme Court are earmarks of a monarchical form of government that we repudiated 241 years ago in the Declaration of Independence. The Georgia justices should not be allowed to hide behind the robes of King George III or Jefferson Davis’ cloak to raise the state above accountability to the people and their constitutional rights. All that is necessary for this evil to triumph is for Georgia lawyers and legislators to do nothing, and for the judiciary to submit.