309 Ga. 899 FINAL COPY
S20G0472. BOARD OF COMMISSIONERS OF LOWNDES COUNTY v. MAYOR AND COUNCIL OF THE CITY OF VALDOSTA et al.
PETERSON, Justice.
The Georgia Constitution allows only the General Assembly to
waive the State’s sovereign immunity. We have repeatedly refused
invitations to invent exceptions to that rule. But that rule requires
waiver only for claims that sovereign immunity actually bars. And,
as we have repeatedly explained, sovereign immunity has never
barred most individual-capacity claims against state employees and
officials for prospective injunctive and declaratory relief based on
allegations that those defendants are acting beyond their legal
authority. At least some of the claims in this case are precisely those
kinds of claims.
One narrow limitation on such claims is that the State cannot
be the “real party in interest.” The Court of Appeals held that the
relief sought here by a Georgia county against state officials would actually control the actions of the State and potentially affect state
expenditures; the Court of Appeals thus concluded that the State is
the real party in interest and that sovereign immunity bars the
county’s claims for injunctive and declaratory relief against the state
officials in their individual capacities. See Bd. of Commrs. of
Lowndes County v. Mayor and Council of the City of Valdosta, 352
Ga. App. 391, 395-396 (1) (834 SE2d 890) (2019). But the real-party-
in-interest limitation is not so broad; our case law has applied it
primarily when the claimed relief would control or take the State’s
real property or interfere with contracts to which the State is a
party. No such relief is sought here, and applying the limitation as
broadly as the State seeks would eviscerate Georgians’ well-
established rights to seek redress against their government. We
therefore reverse the Court of Appeals and hold that sovereign
immunity does not bar the claims at issue in this case.
1. Background.
Lowndes County sued the commissioner of the Georgia
Department of Community Affairs (“DCA”) and members of the DCA board over DCA’s application of the Service Delivery Strategy Act
(“SDS Act”), OCGA § 36-70-1 et seq. Few details of the statute are
relevant to the sovereign immunity issue we decide today, but the
SDS Act authorizes and promotes coordination and comprehensive
planning among municipal and county governments to “minimize
inefficiencies resulting from duplication of services and competition
between local governments and to provide a mechanism to resolve
disputes over local government service delivery, funding equity, and
land use.” OCGA § 36-70-20; see also OCGA § 36-70-1. Counties and
municipalities that approve a local government service delivery
strategy pursuant to OCGA § 36-70-25 must “review, and revise if
necessary, the approved strategy” in certain circumstances. OCGA
§ 36-70-28 (b).1 No state-administered financial assistance or grant,
1 In particular, OCGA § 36-70-28 (b) provides as follows:
Each county and affected municipality shall review, and revise if necessary, the approved strategy: (1) In conjunction with updates of the comprehensive plan as required by Article 1 of this chapter; (2) Whenever necessary to change service delivery or revenue distribution arrangements; (3) Whenever necessary due to changes in revenue distribution arrangements; loan, or permit shall be issued to any local government or authority
that is not included in a service delivery strategy “verified” by DCA.
See OCGA § 36-70-27 (a) (1); see also OCGA §§ 36-70-27 (c), 36-70-2
(4). OCGA § 36-70-25.1 provides a statutory process for mediation
and dispute resolution if affected local governments cannot reach an
agreement after the imposition of sanctions provided in OCGA § 36-
70-27.
Lowndes County and the cities within the County (“the Cities”)
operated under a service delivery strategy agreement implemented
in 2008. The 2008 Strategy Agreement provided that it “shall
become effective July 1, 2008 and shall remain in force and effect
until reviewed and revised by the parties in accordance with the
Act.” In June 2016, a new draft Strategy Agreement was circulated
by Lowndes County to the Cities. On November 1, 2016, when DCA
(4) In the event of the creation, abolition, or consolidation of local governments; (5) When the existing service delivery strategy agreement expires; or (6) Whenever the county and affected municipalities agree to revise the strategy. had not received communication from the County and Cities that
they had agreed either to revise their Strategy Agreement or to
extend the existing one, DCA notified the County and Cities that
they would be ineligible for state-administered financial assistance,
grants, loans, or permits until DCA could verify that Lowndes
County and the Cities had done so.
The County sued the mayors and councils of the Cities, DCA,
and DCA commissioner Camila Knowles, seeking declaratory,
injunctive, and mandamus relief, as well as specific performance.
The complaint argued that the 2008 Strategy Agreement remains in
effect, and that the County and Cities remained eligible for state-
administered financial assistance, grants, loans, and permits. After
DCA and Knowles filed a motion to dismiss, the County filed an
amended complaint, adding members of the DCA board as
defendants. Count 1 of the amended complaint seeks declaratory
relief against all defendants in their individual and/or official
capacities, and Count 6 seeks injunctive relief against Knowles and
the DCA board members in their individual capacities. The amended complaint also removed DCA as a party.
Knowles and the DCA board members filed a motion to dismiss
the amended complaint on the basis that sovereign immunity barred
the claims for injunctive and declaratory relief. They argued that
those claims actually seek to order Knowles and the DCA board
members to take action in their official capacities. The trial court
granted the motion to dismiss.
The Court of Appeals affirmed. See Lowndes County, 352 Ga.
App. at 391. The Court of Appeals held that DCA, not Knowles and
the DCA board members, “is the real party in interest,” and thus
sovereign immunity barred the claims against them. Id. at 395 (1).
The court reasoned that the relief sought would “control the actions
of the State” and could “only be granted by the State,” whereas
“Knowles and the DCA Board Members have no statutory authority
in their individual capacities under the SDS Act to direct DCA to do
anything.” Id. at 396 (1). We granted the County’s petition for a writ
of certiorari to address the sovereign immunity issue, and we now
reverse. 2. Sovereign immunity generally does not apply to individual-capacity claims for prospective declaratory and injunctive relief against state officers and employees alleged to be acting without legal authority.
(a) Sovereign immunity bars claims against the State, its departments and agencies, and its officers and employees when sued in their official capacities.
As we recounted at length in Lathrop v. Deal, 301 Ga. 408 (801
SE2d 867) (2017), the doctrine of sovereign immunity “was
imbedded in the common law of England” and adopted by Georgia
as its own after the War for American Independence. Id. at 411-412
(II) (A) (citation and punctuation omitted). Understood “broadly as
a principle derived from the very nature of sovereignty,” the doctrine
at common law generally provided that “[t]he State could not,
without its own express consent, be subjected to an action of any
kind.” Id. at 412-413 (II) (A) (citations and punctuation omitted). At
common law, the doctrine barred not only suits against the State in
its own name, but also suits against the State’s departments,
agencies, and officers in their official capacities, “even when it was
alleged that the officers had acted without legal authority.” Id. at 413 (II) (A). The doctrine of sovereign immunity was broad enough
at common law “to bar some suits against public officers in their
individual capacities, although only to the extent that the State
itself could be said to be the real party in interest.” Id. at 413-414
(II) (A). “The doctrine sometimes worked to bar suits, for instance,
in which the relief sought would tend to impair or affect the property
or contractual interests of the State.” Id. at 414 (II) (A) (citing Linder
v. Ponder, 209 Ga. 746, 747-748 (75 SE2d 814) (1953); Musgrove v.
Ga. R. & Banking Co., 204 Ga. 139, 157 (49 SE2d 26) (1948); Printup
v. Cherokee R. Co., 45 Ga. 365, 367 (1872)). “The doctrine of
sovereign immunity at common law generally was inapplicable,
however, in cases in which state officers in their individual
capacities were alleged to have acted without legal authority, even
if they acted under color of their offices.” Id. (emphasis added).
The common law doctrine of sovereign immunity has been
enshrined in the Georgia Constitution. In 1974, the voters ratified a
constitutional amendment preserving the doctrine. See Lathrop, 301
Ga. at 419-420 (II) (B). And although the 1983 Constitution changed the means by which sovereign immunity could be waived, a 1991
amendment “carried forward the constitutional reservation of
sovereign immunity at common law as it was understood in Georgia,
using the same language as the original Constitution of 1983 to
reaffirm that ‘sovereign immunity extends to the state and all of its
departments and agencies.’” Id. at 420-423 (II) (B) (quoting Ga.
Const. of 1983, Art. I, Sec. II, Par. IX (e) (as amended)). Following
the 1974 amendment, we made clear that the sovereign immunity
preserved by the 1974 amendment and the common law doctrine as
previously understood by Georgia courts were one and the same and
could not be modified by this Court. See Sheley v. Bd. of Pub. Ed. for
City of Savannah, 233 Ga. 487, 488 (212 SE2d 627) (1975).
“Consistent with these understandings, after the doctrine of
sovereign immunity was given constitutional status, this Court
continued to observe the traditional distinction between suits
against state officers in their official capacities, which are barred by
sovereign immunity, and those against state officers in their
individual capacities, which generally are not.” Lathrop, 301 Ga. at 420 (II) (B) (citing Hennessy v. Webb, 245 Ga. 329, 330 (264 SE2d
878) (1980)).
We strayed for a time from the understanding that sovereign
immunity, now given constitutional status, was not subject to
alteration by this Court. In 1995, purportedly to avoid “confusion”
stemming from the use of “legal fictions and circular reasoning,” and
“permit a more logical analysis,” we held that a suit against state
officers in their official capacities for injunctive relief to restrain an
illegal act fell within an “exception” to sovereign immunity. IBM
Corp. v. Evans, 265 Ga. 215, 216 (1) (453 SE2d 706) (1995). But we
corrected course in 2014, reaffirming that “the clear language of our
Constitution authorizes only the General Assembly to waive
sovereign immunity,” without “exception.” Ga. Dept. of Natural
Resources v. Center for a Sustainable Coast, 294 Ga. 593, 597 (2) (755
SE2d 184) (2014). We since have made clear that, absent some
waiver by the Georgia Constitution itself or the statutory law, the
doctrine of sovereign immunity bars suits for injunctive and
declaratory relief against the State, its departments, and its officers in their official capacities, including suits for injunctive relief from
the enforcement of allegedly unconstitutional laws. See Lathrop, 301
Ga. at 444 (IV); Olvera v. Univ. System of Ga. Bd. of Regents, 298
Ga. 425, 427-428 (782 SE2d 436) (2016); Sustainable Coast, 294 Ga.
at 602-603 (2).
(b) Sovereign immunity generally does not bar individual- capacity claims against state officers and employees for prospective declaratory and injunctive relief.
Critically, however, we also have repeatedly made clear that
sovereign immunity does not bar suits for injunctive and declaratory
relief against state officials in their individual capacities. See
Lathrop, 301 Ga. at 444 (IV) (“There are . . . prospective remedies
that the plaintiff-physicians may pursue against state officers in
their individual capacities.”); Sustainable Coast, 294 Ga. at 603 (2)
(“Our decision today does not mean that citizens aggrieved by the
unlawful conduct of public officers are without recourse. It means
only that they must seek relief against such officers in their
individual capacities.”); Olvera, 298 Ga. at 428 (same). As Presiding
Justice Benham explained in his partial dissent from our opinion in IBM,
[i]t is a long-standing principle of Georgia law that sovereign immunity is not applicable where an injunction is sought to prevent the commission of an alleged wrongful act by an officer of the state acting under color of office but without lawful authority and beyond the scope of official power because such a suit is not against the state, but against an individual stripped of his official character.
265 Ga. at 220 (Benham, P.J., concurring in part and dissenting in
part) (citation and emphasis omitted) (quoted in Lathrop, 301 Ga. at
423-424 (II) (C)). Presiding Justice Benham was right; that principle
is longstanding in our law and is a part of the sovereign immunity
that the Georgia Constitution now preserves. See, e.g., Undercofler
v. Eastern Air Lines, Inc., 221 Ga. 824, 829 (1) (147 SE2d 436) (1966)
(complaint for injunctive and declaratory relief alleging that
defendant state officials were attempting to assess taxes in violation
of state statute fell within rule that “suit may be maintained against
officers or agents personally, because, while claiming to act
officially, they have committed[,] or they threaten to commit[,]
wrong or injury to the person or property of plaintiff, either without
right and authority or contrary to the statute under which they purport to act” (citation and punctuation omitted)); Holcombe v. Ga.
Milk Producers Confederation, 188 Ga. 358, 362-364 (1) (3 SE2d 705)
(1939) (suit for injunctive relief alleging that members of milk-
control board sued “as individuals” were acting under color of
authority of unconstitutional statute was not subject to demurrer as
one against the State); Dennison Mfg. Co. v. Wright, 156 Ga. 789,
793-794 (1) (120 SE 120) (1923) (suit characterized in Holcombe, 188
Ga. at 362, as one against state comptroller-general “as an
individual” seeking to “enjoin him from committing acts which it was
contended . . . would be entirely without constitutional authority”
was not a suit against the State); Irwin v. Arrendale, 117 Ga. App.
1, 2-3 (2) (159 SE2d 719) (1967) (listing cases).2
(c) Sovereign immunity still bars individual-capacity
2 As mentioned above, in 1784 Georgia adopted the common law of England as of May 14, 1776, as its own as a general matter, such that arguably this Court could not alter it at all. See Lathrop, 301 Ga. at 412 (II) (A) n.9. But to the extent that we ever had the authority to alter the parameters of sovereign immunity or recognize new exceptions, the constitutionalization of sovereign immunity took away any such authority. See Sustainable Coast, 294 Ga. at 601 (2). But that does not mean that our pre-1974 case law is irrelevant; indeed, it is the only way that we can discern the nature of the sovereign immunity that the Georgia Constitution now preserves. The 1974 amendment did not change the scope of sovereign immunity; it merely gave it a new constitutional status that put changes beyond the reach of the courts. claims when the State is the real party in interest, but that exception to the general rule is narrow.
As noted above, at common law the doctrine of sovereign
immunity barred some suits against public officers in their
individual capacities to the extent that the State itself could be said
to be the real party in interest. See Lathrop, 301 Ga. at 413-414 (II)
(A). The Court of Appeals held below that the State is the real party
in interest here because the relief sought would “‘operate to control
the action of the State or subject it to liability.’” Lowndes County,
352 Ga. App. at 395-396 (1) (quoting Moore v. Robinson, 206 Ga. 27,
37 (2) (55 SE2d 711) (1949)).3 Although we have used such imprecise
language before, see, e.g., Musgrove, 204 Ga. at 155, our more
careful precedent makes clear that sovereign immunity applies to
individual-capacity claims for injunctive or declaratory relief in only
“limited” circumstances. Lathrop, 301 Ga. at 414 (II) (A). The limited
circumstances in which we have held that sovereign immunity is
3 The Court in Moore held that injunctive relief to prevent members of
the Board of Chiropractic Examiners from issuing licenses based on qualifications less than those fixed by statute would not “operate to control the action of the State.” 206 Ga. at 37 (2). applicable under a real-party-in-interest theory primarily have
included attempts to control the real property rights and contractual
obligations of the State. See Linder, 209 Ga. at 746-748 (action
against state agriculture commissioner in his individual capacity
seeking to enjoin him from using state land for State Farmer’s
Market subject to demurrer; “[s]ince the grantee, the State, is not a
party to this action, no cancellation of the State’s deed can be
decreed”); Musgrove, 204 Ga. at 158-159 (action against state
revenue commissioner seeking declaration that plaintiff’s railroad
charter is binding upon the State and its officers in perpetuity and
injunction against collection of ad valorem taxes on certain railroad
properties is one against the State and therefore not maintainable,
even if defendant is deemed to be named in his individual capacity);
Roberts v. Barwick, 187 Ga. 691, 695-696 (2) (1 SE2d 713) (1939)
(suit against state agriculture commissioner “not as individual” for
cancellation of lease is barred by sovereign immunity because under
relief sought “the State would thereby be dispossessed of property
now in its possession”); Cannon v. Montgomery, 184 Ga. 588, 593- 594 (2) (192 SE 206) (1937) (error to grant injunction preventing
occupation of fish hatchery by caretaker acting on behalf of State
Department of Game and Fish); Printup, 45 Ga. at 367 (railroad
company cannot seek injunction to prevent purported agent of the
State from taking possession of road).4
Applying the real-party-in-interest exception more broadly
than this precedent supports would yield a rule wholly incompatible
with our longstanding precedent allowing individual-capacity
claims for injunctive and declaratory relief. Indeed, any injunction
or declaration as to an employee or official of the State could be said
to “control the actions of the State” to some extent, and when that
employee or official is paid by state funds or administers state-
funded programs, any such relief could, at least indirectly, involve
the expenditure of State resources.
Knowles and the DCA board members (the “State Defendants”)
4 We note that the Georgia Constitution now expressly waives the State’s
defense of sovereign immunity “as to any action ex contractu for the breach of any written contract now existing or hereafter entered into by the state or its departments and agencies.” Ga. Const. of 1983, Art. I, Sec. II, Par. IX (c) (as amended). rely on Peters v. Boggs, 217 Ga. 471, 474-475 (123 SE2d 258) (1961),
to argue that the State is the real party in interest when a claim
seeks to control the disbursement of state funds, even when the
claim names state officials in their individual capacities. In Peters,
this Court concluded that an action seeking to enjoin state officers
and agents sued in their individual capacities from providing state
support to integrated public schools was barred by sovereign
immunity. See id. at 472-473. But it appears that Peters involved a
request for an injunction as to the use of some real property of the
State, not merely state funds. See id. at 472 (noting action sought
injunction forbidding the use of any state-owned “property or
equipment” by any integrated school). Moreover, to the extent that
Peters held that sovereign immunity barred an injunction against
the state officials’ expenditure of state money, that decision stands
for nothing more than the principle that sovereign immunity
protects state officials from an injunction that prevents them from
spending state funds specifically appropriated for the purpose in question.5 Id. at 474-475 (2) (distinguishing Ramsey v. Hamilton,
181 Ga. 365 (182 SE 392) (1935), “where there was no specific
appropriation by the General Assembly of the funds involved”).6
Again, applying the real-party-in-interest exception as broadly as
the State Defendants argue would swallow our precedent generally
allowing claims for injunctive and declaratory relief against state
officials sued individually.
3. Sovereign immunity does not bar the individual-capacity claims for prospective declaratory and injunctive relief asserted here.
Applying this principle to the allegations made by the County
here, we conclude that the Court of Appeals erred by affirming the
dismissal of the County’s claims against the State Defendants in
their individual capacities on sovereign immunity grounds. The
County’s amended complaint alleges that, under OCGA § 36-70-25.1
5 As discussed in more detail below, this sort of relief is not at issue here,
so we need not consider whether that principle is correct. We express no opinion as to whether Peters was rightly decided. 6 We note that our opinion in Ramsey indicates that the state officers
were sued in that case in their official capacities, not individually. See 181 Ga. at 368 (1). (f) and the terms of the 2008 Strategy Agreement itself, the
agreement remains in effect, and the County and Cities thus remain
eligible for state-administered financial assistance, grants, loans,
and permits. The amended complaint thus alleges that sanctions
imposed against the County and the Cities were not imposed “by or
in accordance with law.” The amended complaint seeks a declaration
against the State Defendants in their individual capacities that the
County and Cities remain eligible for state-administered financial
assistance, grants, loans, and permits and that the sanctions have
not been legally imposed. The amended complaint also seeks an
injunction against Knowles and the DCA board members in their
individual capacities, ordering them to direct DCA to stop notifying
state departments and agencies that the County and Cities are
ineligible for state financial support and permits. The County thus
is seeking declaratory and injunctive relief against the State
Defendants in their individual capacities for “the unlawful conduct
of public officers,” which, as we made clear in Sustainable Coast, is
not barred by sovereign immunity. 294 Ga. at 603 (2); see also Lathrop, 301 Ga. at 444 (IV); Olvera, 298 Ga. at 428.
The State Defendants and the Cities dispute the County’s
allegation that the State Defendants have acted without legal
authority. But we need not consider whether the County is correct
in its allegations about the legality of the State Defendants’ actions
in order to determine that its claims are not barred by sovereign
immunity at the pleading stage. The trial court dismissed the claims
for injunctive and declaratory relief against the State Defendants
based on its conclusion that they were really claims against the
State, and the Court of Appeals agreed. See Lowndes County, 352
Ga. App. at 395-396 (1). Neither lower court concluded that
dismissal of the claims for injunctive and declaratory relief was
warranted on the basis that the County had not shown that the
State Defendants were acting outside their lawful authority. That is
a question to be decided on remand as the case goes forward.7
7 The trial court dismissed claims for mandamus relief against the State
Defendants on the basis that the County could not show that it had a clear legal right to the relief requested or that the State Defendants had failed to perform a clear legal duty. The Court of Appeals affirmed that ruling. See The State Defendants argue that the Court of Appeals properly
concluded that sovereign immunity did bar the claims against them
because the State is the real party in interest. The Court of Appeals
concluded that sovereign immunity bars the County’s claims for
injunctive and declaratory relief against the State Defendants here
because the relief sought would “control the action of the
State[.]”Lowndes County, 352 Ga. App. at 395-396 (1). And the State
Defendants argue that the State is the real party in interest because
the relief sought by the County would directly impact the State “and
its obligation to make financial disbursements.” But the relief the
County seeks would not alter the title, possession, or usage of any
real property of the State or interfere with any state contracts.
To the extent that an individual-capacity claim for injunctive
or declaratory relief would ever fall within the real-party-in-interest
Lowndes County, 352 Ga. App. at 397-399 (2). But we granted certiorari only as to the Court of Appeals’s ruling on the claims for injunctive and declaratory relief against the State Defendants. And we express no opinion as to the extent to which the lower court’s conclusions regarding the mandamus claims against the State Defendants may affect the viability of the claims for injunctive and declaratory relief against the State Defendants. exception because the relief sought would affect the expenditure of
funds — a point we do not decide today — the County does not seek
to block any disbursement of specifically appropriated funds. And
the County does not seek to require any disbursement of funds,
either. Rather, it asks for a declaration that it remains eligible for
funds, and for an injunction to stop the State Defendants from
broadcasting that the County is categorically ineligible. There is no
indication in the complaint that such relief would entitle the County
to specific funds automatically and without any other action by
someone other than the State Defendants. Indeed, the injunction
sought by the complaint would stop the State Defendants from
informing other “departments and agencies of the State of Georgia”
that the County is categorically ineligible for funds. The possibility
that the relief sought might ultimately result in the expenditure of
some state funds is not enough to bring this case within the real-
party-in-interest exception.
The State Defendants also argue that the limited statutory
roles of the DCA commissioner and members of the DCA board indicate that the County is seeking relief against the State itself, not
any particular individual. The State Defendants emphasize that, by
statute, DCA itself has the duty to “[d]evelop, promote, sustain, and
assist local governments in the performance of their duties . . .
including among such duties and responsibilities of local
governments coordinated and comprehensive planning[.]” OCGA §
50-8-3 (b) (5). And with respect to the SDS Act, the State Defendants
note, the statute provides that “[t]he department shall . . . verify”
that a service delivery strategy includes certain statutory
components. OCGA § 36-70-26 (emphasis added).
But by statute the DCA commissioner is the department’s
“chief executive officer and administrative head.” OCGA § 50-8-5 (a).
The commissioner’s powers include, among others, “[t]he power and
authority to take or cause to be taken any or all action . . . necessary
to perform any duties, responsibilities, or functions which the
department is authorized by law to perform” and “[t]he power and
authority to make, promulgate, enforce, or otherwise require
compliance with any and all rules, regulations, procedures, or directives necessary to perform any local government services, to
carry into effect the minimum standards and procedures for
coordinated and comprehensive planning, or otherwise necessary to
perform any duties, responsibilities, or functions which the
department is authorized by law to perform or to exercise any power
or authority which the department is authorized by law to
exercise[.]” OCGA § 50-8-5 (b) (1), (2). Moreover, “injunctions run by
operation of law not only to the parties, but also to ‘their officers,
agents, servants, employees, and attorneys, and upon those persons
in active concert or participation with them who receive notice of the
order by personal service or otherwise.’” Lathrop, 301 Ga. at 444 (III)
(C) n.32 (quoting OCGA § 9-11-65 (d)). And the DCA board
“establish[es] policy and direction for the department and shall
perform such other functions as may be provided or authorized by
law.” OCGA § 50-8-4 (a). The DCA board also has the power to hire
and fire the DCA commissioner, see OCGA § 50-8-5 (a), and by this
appointment and removal power has authority over the actions of
the DCA commissioner. The State Defendants suggest that the fact that a DCA staffer,
and not Knowles or any of the DCA board members, sent the notice
to the County and Cities informing them of sanctions means that
the State is the real party in interest. Of course, “given that the
purpose of an injunction is to restrain ‘a threatened . . . act of a
private individual . . . which is illegal or contrary to equity and good
conscience and for which no adequate remedy is provided at law[,]’
OCGA § 9-5-1, [the County] must show that the person [it] has sued
is the one committing the act at issue[.]” Williams v. DeKalb County,
308 Ga. 265, 273 (3) (b) (ii) (840 SE2d 423) (2020). But the County’s
amended complaint alleges that Knowles and the DCA board
members “are permitting DCA to post on its website notice that the
County and the Cities are ineligible for state administered financial
assistance, grants, loans, and permits, contrary to OCGA § 36-70-
25.1 (f), the terms and provisions of the existing strategy agreement,
and OCGA § 36-70-27.” And nothing in the complaint claims that
the alleged illegal actions are not subject to the direction and control
of the DCA commissioner or that the commissioner’s direction and control over this conduct is somehow exempt from the DCA board’s
general authority to hire and fire the commissioner. In any event, to
the extent that the actions of a different or additional official must
be restrained to give the County the relief that it seeks, that does
not mean that the State is the real party in interest such that
sovereign immunity bars the County’s claims; it merely means that
the claims may be subject to dismissal on other grounds.8
8 The trial court and the Court of Appeals noted that Knowles is no longer
the commissioner of DCA, and several State Defendants are no longer DCA board members. See Lowndes County, 352 Ga. App. at 396 (1). The Court of Appeals concluded that those persons “have no authority in their individual capacities to direct DCA to do anything.” Id. And the State Defendants argue that the appeal as to those individuals should be dismissed as moot. See Ga. Dept. of Human Svcs. v. Addison, 304 Ga. 425, 428 (1) n.5 (819 SE2d 20) (2018) (where plaintiffs acknowledged that defendant was no longer employed by the State, “he [could] no longer give the plaintiffs any of the relief they [sought]” and the “appeal as to him in his individual capacity [was] therefore dismissed as moot”). This case is before us on certiorari on the limited question of whether the County’s claims for injunctive and declaratory relief against the State Defendants were properly dismissed on sovereign immunity grounds, however, and we leave it for the trial court to sort out those issues, as well as whether the County may amend its complaint to name other defendants in their individual capacities, in the first instance. The State Defendants also posit that the issue raised by this appeal may become moot following the November 2020 election, when Georgia voters will have the opportunity to amend the state Constitution to waive sovereign immunity for declaratory relief from state actions that are unconstitutional or outside the scope of lawful authority. See H.R. 1023 (2019-2020 Reg. Session). But whether future events might moot a case does not render a case moot now, and we express no opinion about the proper answer to the sovereign immunity The Court of Appeals erred by concluding that the County’s
claims for injunctive and declaratory relief against Knowles and the
DCA board members are barred by sovereign immunity. We reverse.
Judgment reversed. All the Justices concur, except McMillian, J., disqualified.
Decided September 28, 2020.
Certiorari to the Court of Appeals of Georgia ― 352 Ga. App. 391. Elliott, Blackburn & Gooding, James L. Elliott, Walter G. Elliott II, for appellant. Coleman Talley, George T. Talley, Timothy M. Tanner; Smith, Welch, Webb & White, Andrew (Andy) J. Welch III, Warren M. Tillery, Brandon F. Palmer; Christopher M. Carr, Attorney General, Logan B. Winkles, Senior Assistant Attorney General, Julie A. Jacobs, Assistant Attorney General, for appellees.
questions answered today in the event the proposed amendment becomes effective.