Georgia’s highest court on Monday grappled with the weighty question of whether state judges are barred from reviewing challenges to state laws — even those that are blatantly unconstitutional.
A state attorney told the justices that such challenges are prohibited by the doctrine of sovereign immunity. That doctrine, embedded in a 1991 state constitutional amendment, shields governments at all levels from lawsuits unless the Legislature grants a specific waiver to allow them.
There is no waiver that permits a lawsuit brought by three abortion doctors who are challenging the state's "fetal pain" law, Sarah Warren, the state's solicitor general, said. The 2012 statute says that because a fetus can experience pain after 20 weeks of gestation, doctors can be charged with a felony for performing most abortions after that threshold.
But the merits of this suit, filed in Fulton County, have yet to be considered. Last year, a judge dismissed the case on the grounds that the Legislature did not waive sovereign immunity for the lawsuit that contends the fetal-pain law violates privacy rights.
“The people of Georgia meant what they said when they passed the 1991 amendment,” Warren said.
During Monday’s arguments, several extreme examples were made to hypothesize what laws could be enacted and not be subject to a constitutional challenge: a law requiring children to go to school 20 hours a day, seven days a week; a law banning Muslims from sitting as judges; and a law that says only Christians from the Presbyterian Church can be a state court judge.
Atlanta lawyer Don Samuel, who represents the abortion doctors on behalf of the American Civil Liberties Union, told the justices there has to be a way to challenge an unconstitutional statute in the state’s courts.
“It’s like the fox guarding the hen house or the batter calling balls and strikes,” Samuel said. “It’s an astounding proposition. It would mean that Georgia is the only state in the country where the Bill of Rights is subservient to the Legislature.”
Justice David Nahmias, who dominated the questioning, told Samuel that there are ways around the sovereign immunity bar, such as suing government officials in their personal, not official, capacity. In those suits, sovereign immunity defenses don’t apply, Nahmias said, asking, “Why not just do it that way?”
Samuel responded that the state has taken the position that even those types of lawsuits are not allowed. If the high court expressly says they are allowed, Samuel added, “we can live with that.”
Credit: Bob Andres
Credit: Bob Andres
Warren, the state solicitor general, said there are other ways citizens can challenge the constitutionality of a state law. They can file suit in federal court, ask the Legislature to grant a waiver to sue, amend the state constitution, or be arrested and challenge the law as part of a defense.
Nahmias seemed dissatisfied with the suggestion that plaintiffs should have to go to federal court to obtain protections from unconstitutional state laws. And a request for a waiver to sue would have to be made to the same Legislature that passed the allegedly illegal statute, the justice noted.
As for the state’s suggestion that his clients wait to challenge the law after they’ve been arrested and charged, Samuel asked, “How demonic is that?”
Addressing the state’s suggestions, Samuel said, “The only thing they haven’t said is leave the state of Georgia (because) the Bill of Rights aren’t being enforced in our state.”
The Supreme Court is expected to issue a ruling in the coming months. In this case, Justices Nels Peterson and Britt Grant, who both once served as state solicitor generals, recused themselves. They were replaced by Superior Court Judges Ann Harris of Cobb County and Penny Haas Freesemann of Chatham County.
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