On June 19, 2017, the Georgia Supreme Court issued a widely anticipated decision, Lathrop v. Deal. The case questioned whether the doctrine of sovereign immunity barred challenges to the constitutionality of state laws. In its ruling, the court: (1) provided a roadmap for how such challenges must be made, and (2) set forth important views of its role in the balance of powers within state government. While the first point is important, the second may help drive business and legal decisions within Georgia.

The Decision

The Lathrop case was a challenge to a Georgia statute regulating abortions. The lawsuit was brought against Gov. Nathan Deal and other individuals in their official capacities, and it sought to enjoin enforcement of the statute. The lawsuit was limited to challenges under the Georgia Constitution. The state Supreme Court held, in a lengthy and history-laden opinion authored by Justice Keith Blackwell, that the doctrine of sovereign immunity barred a lawsuit of any kind (absent waivers) against the state or its officials in their official capacity, including a challenge to the constitutionality of a statute. The decision further held, however, that state and local officials can be sued in their individual capacities challenging enforcement of the statute, so long as plaintiffs seek only prospective, injunctive relief.

What It Means for Businesses, Litigators and Textualism

Businesses in Georgia need to be aware of this holding for several reasons. First, the Georgia Constitution is substantively different from the U.S. Constitution in both content and approach. Many of the provisions of the state constitution are more granular in nature. Accordingly, the concept of a corporate challenge to a statute as a violation of the state constitution may be more likely to arise than a business challenge to the U.S. Constitution. The Lathrop case sets forth the framework for such a challenge.