OUTLANDISH CONSPIRACY THEORIES: The strange case of Georgia’s disappearing and reappearing Constitution
Why the Legislature is asking Georgia voters to save the state’s Constitution from the Georgia Supreme Court
Let’s be clear about why, this November, we are having a state-wide popular referendum on whether citizens can go to court to block unconstitutional laws and actions by state officials. It is because the Georgia Supreme Court has gone off the rails on sovereign immunity and come completely unhinged from the law as it is already written.
Let me explain it to you like you are reading Alice in Wonderland. As stated in the epigraph, it bears repeating that the Georgia Constitution already says:
“Legislative acts in violation of this Constitution or the Constitution of the United States are void, and the judiciary shall so declare them.”
That statement, asserting that the courts can review statutes for constitutionality and known as the Judicial Review Clause, has been in the Georgia Constitution since 1865. It is still there today.
So why are we having a referendum to determine whether the Constitution will say courts can declare laws unconstitutional? There seems to be no logical answer to anyone who knows the English language.
So here’s a better question: How did the Georgia Supreme Court, with all its members appointed by the last three Republican governors, come to the contrary conclusion in Lathrop v. Deal, in 2017? That is when the Court told Georgia doctors — who were challenging a statute threatening them with criminal liability for making medical decisions about abortion — that the divine-right doctrine of sovereign immunity prevented the doctors from going to court to have the statute declared unconstitutional as a violation of their due process rights.
This negative pronouncement goes beyond contradicting the state constitution in the name of a common law doctrine. That is because there is already a statute, passed in 1945 by the General Assembly, OCGA § 9-4-2, that authorizes courts to “declare rights” — of which the most important are constitutional rights. The statute explicitly includes challenges to the constitutionality of a statute, requiring the attorney general to be served in the case of such a constitutional challenge, at OCGA § 9-4-7(c).
That seems logical, if not a little redundant, since the power of judicial review of the constitutionality of statutes was already written into the Georgia Constitution.
By the way, if there were still a question of sovereign immunity, Georgia’s Constitution says the legislature can waive sovereign immunity by enacting a statute authorizing an action. Therefore, the Declaratory Judgment Act, which expressly authorizes a constitutional challenge to a state statute, clearly and explicitly waives the sovereign immunity claimed by the Georgia Supreme Court. In Lathrop v. Deal, which opens with the false bravado that “sovereign immunity forbids our courts to entertain a lawsuit against the State without its consent,” the Georgia Supreme Court merely ignored the Legislature’s statutory waiver of sovereign immunity, as authorized by the Georgia Constitution at Article I, Section II, Paragraph IX(e).
The law as written in the Judicial Review Clause of the Georgia Constitution and Declaratory Judgment Act seems pretty clear. That is why Justice Blackwell had to write 87 pages in a futile attempt to explain otherwise, claiming power to change the law and Constitution that the Georgia Supreme Court does not possess.
So back to the original question: Why are we voting on a referendum to put something in the Constitution that is already in the Constitution? Why are we having to vote to overturn sovereign immunity when the Constitution says the legislature can waive sovereign immunity, and the Legislature has already done so in the Declaratory Judgment Act of 1945 — consistent with the Judicial Review Clause that has been written in the Constitution since 1865?
To put it simply, because the Georgia Supreme Court has gone on a pseudo-intellectual journey to consolidate state power as it is currently constituted since the days of Sonny Perdue. That’s right — the opposite of what conservatives claim as their ideology.
In the Lathrop decision of 2017, when Justice Blackwell auditioned for Scalia’s empty seat on the U.S. Supreme Court with a hyper-Originalist opinion, Blackwell swept all the existing law aside.
The unanimous Court went down an Originalist rabbit hole, requiring it to delve into the “initial iteration” of judicial review in Georgia law, first found by Justice Blackwell in the Georgia Constitution of 1861. That version of the Georgia Constitution, at Article I, Section 17, says:
"Legislative Acts in violation of the fundamental law are void; and the Judiciary shall so declare them."
Parsing the difference between legislative acts “in violation of fundamental law” — as opposed to in violation of the Constitution, Blackwell interpreted that provision to not authorize “the Judiciary to so declare” legislative acts “void” for contradicting the Constitution. While the semantics of that conclusion are debatable at best, as contrary to the most common understanding of all Americans, North and South, Blackwell failed to mention one highly relevant fact about his source of authority:
"The Georgia Constitution of 1861 was enacted by the state’s Confederate legislature a month after Georgia seceded from the Union."
It is therefore highly problematic for a modern Georgia court to rely on Confederate authority to overturn the law as written today, if not an outright fraud on the law by the modern Georgia justices, because the U.S. Supreme Court has repeatedly held that Confederate legal authority is null and void, having the same validity, effect, and precedential value as Confederate paper money.
Never mind that the concept of judicial review has been enshrined in American jurisprudence since Chief Justice John Marshall’s 1803 opinion in Marbury v. Madison.
So, in addition to disregarding state statutes and constitutional provisions, the Georgia justices were thumbing their noses at the U.S. Supreme Court, for good measure.
Put all this aside for a minute to ponder this: There is still nothing in Blackwell’s insistence on the meaning and current validity that explains why Confederate law should prevail over the laws currently written on the books. When I graduated from the University of Georgia School of Law — just a few short years removed from Justice Blackwell — the professors were still teaching that in the interpretation of legal authorities the most recent writing controls. That debunks the Federalist Society fallacy of Originalism in a nutshell.
Never mind the universal promise of conservative jurists to follow the law and Constitution as written. As often as they repeat it, it is a hollow promise. The Georgia Supreme Court was not following the Constitution in Lathrop. They were ignoring it — unless, of course, you count the Confederate iteration. But because the justices are supported by the veto pen of the governors who appointed them, the Legislature is having to turn to the voters to straighten out this mess.
I wish I could say this was the end of the high court’s sovereign immunity debacle. Alas, it is not.
In fact, the Georgia Supreme Court started warming up in 2014, reviewing an issue not raised by any of the parties, when they issued an opinion in the Sustainable Coast case, that sovereign immunity prevented Georgia citizens from going to court to enjoin a state agency that was breaking the law it is supposed to administer and enforce. In that case, it was the Georgia Department of Natural Resources handing out waterfront development permits in violation of the statute.
As you probably have predicted by now, the Georgia Supreme Court decided this controversy it concocted on its own — whether common law sovereign immunity overrides a statute authorizing injunctive relief — to say you can’t go to court to rein in a lawless state agency.
Moreover, while off on this legal tangent no party in the case asked it to take, the Georgia Supreme Court added what it called a saving twist: Even though sovereign immunity prevents suing the state, that does not mean there is no recourse whatever against the state. That is because, according to the Originalists, you can still sue state officials in their individual capacities, not because of any provision in Georgia law today, but because the King’s ministers could be sued at English common law.
Yes, the absurd results of Georgia Supreme Court Originalism were starting to flower — as unruly, unworkable weeds. The attempted legislative override was vetoed by Governor Deal.
That brings us to the Tricoli opinion of 2016, where the Georgia Court of Appeals was allowed to override multiple prior decisions of the Georgia Supreme Court to hold that state officials enjoy sovereign immunity to commit felonies — specifically, falsification of state agency financial records to conceal the theft of millions in taxpayer dollars — and cannot be held accountable for their crimes by the victims that they harmed. (Of course, the attorney general could have prosecuted the state officials criminally, but chose to defend them instead).
The Court of Appeals steamrolled two prior Georgia Supreme Court decisions to come to the result of immunity for criminal conduct.
In 1984, Georgia Labor Commissioner Sam Caldwell came before the Georgia Supreme Court arguing that a civil RICO action could not be brought against him for extortion, theft, and bribery — because he was a state official. In Caldwell v. State, the Georgia Supreme Court said no to Sam Caldwell. The 1984 Georgia Supreme Court looked at the language of the RICO statute and explained in detail why it specifically authorized the civil RICO action against Commissioner Caldwell. Don’t forget that an express statutory authorization of an action by the Legislature waives sovereign immunity under the current Georgia Constitution (not to be confused with the Confederate version).
The Court of Appeals opinion that blew past Caldwell to confer sovereign immunity on state officials to commit crimes with no accountability made no mention of the contrary, controlling Georgia Supreme Court opinion, and did not examine a single word of the RICO statute analyzed in Caldwell.
The Court of Appeals also seemed to look with favor on a dodge suggested by then-Attorney General Sam Olens, that the claims based on criminal RICO predicate acts — such as theft of state funds — were governed not by the Georgia RICO statute, but by a different tort claims statute governing actions for common negligence (Georgia Tort Claims Act governs claims for losses “recoverable in actions for negligence” — OCGA § 50-21-22(3)).
The Court of Appeals failed to mention that the Georgia Supreme Court explicitly rejected that argument in Dorsey v. State, where former DeKalb County sheriff Sidney Dorsey also argued he was not amenable to RICO claims for stealing county funds (and murdering his campaign opponent) because those criminal acts were governed by the tort claims statute. The Georgia Supreme Court held that violations of criminal statutes do not merge with common law torts — which blew the attorney general’s argument in Tricoli out of the water, but no one seemed to notice.
Never mind that the Georgia Constitution says state Supreme Court decisions such as Caldwell and Dorsey are binding (Article VI, Section VI, Paragraph VI), and that the Court of Appeals and other lower courts have no option but to follow them (Article VI, Section V, Paragraph III). The Georgia Supreme Court compounded the constitutional violation by refusing to review and reverse that violation of the Georgia Constitution committed by the Court of Appeals.
The only legal way the Georgia Supreme Court could let the Tricoli opinion — conferring sovereign immunity on state officials to commit crimes in contradiction of the Supreme Court precedents — stand is take up the case and reverse Caldwell and Dorsey. Instead, the whole GOP-appointed judiciary ignored those binding decisions, and the Georgia Supreme Court let the Court of Appeals opinion stand, in violation of the Georgia Constitution the justices were sworn to uphold.
You shouldn’t be surprised to learn, at this point, that I have been slapped with a sanctions order for arguing Georgia jurists have to follow Caldwell and Dorsey — because the Georgia Constitution says so. Attorney General Chris Carr sought the sanctions order, and the Georgia Supreme Court saddled me with it, even though neither of them can respond to the documented allegations of criminality or the legal authority supporting the RICO claims.
Sanctioning an attorney whose position is supported by evidence and legal authority is prohibited by OCGA § 9-15-14(c). It is also prohibited by the First Amendment to the U.S. Constitution, and OCGA § 9-11-11.1, the Georgia statute embodying the right to speak out on issues of public importance and petition the courts for redress of grievances. Every court at every level — the trial court, the Court of Appeals, and the Supreme Court — all refused to even consider the First Amendment protection or follow any of the procedures required by Georgia’s First Amendment protection statute.
Meanwhile, the same phantom, unconstitutional immunity for RICO felonies was used to dismiss the Benedek v. Adams case without a trial, immunizing documented evidence and witness tampering, perjury, and identity fraud, mail fraud, wire fraud, and computer fraud committed by state officials.
Then there is the phantom KSU case, also dismissed without a trial or presentation of the evidence to a jury, on the grounds that state officials enjoy sovereign immunity for financial fraud, bribery, and extortion. That is the case in which Kennesaw State University (KSU) faculty sought to block the University System of Georgia (USG) appointment of former attorney general Sam Olens — after Olens obstructed criminal investigation of the USG financial fraud in the Tricoli case.
Attorney General Chris Carr, Olens’ replacement appointed by Governor Nathan Deal, never filed a single response in the KSU case to documented allegations — thus its phantom appellation.
In a legitimate legal world, this failure to respond would result in a default judgment against the state. Yet every court at every level in Georgia ruled in favor of the attorney general — in one-sentence orders with no explanation. When the Phantom KSU case reached the Georgia Supreme Court, the justices (some of them with previously admitted conflicts in the related Tricoli case) refused to review the case, even though this illegal de facto conferring of sovereign immunity for criminal conduct violates the Supreme Court’s own precedents — and thus violates the Georgia Constitution. Is anyone starting to smell anti-constitutional corruption in the woodwork yet?
Lower courts have had a difficult time trying to make sense of the sovereign immunity quagmire created by the Lathrop/Sustainable Coast/Tricoli trilogy of opinions conferring sovereign immunity on the state for everything wrong but the kitchen sink.
Lower court struggles have brought us such gems as sovereign immunity barring a lawsuit by an inmate who state authorities intentionally held in prison 17 months past the completion of his sentence.
Then there is the case that is really going to come home to roost for former attorney general Olens and former secretary of state Brian Kemp — the sovereign immunity ruling that forbade Georgia citizens from going to court to force the state to close open, obvious, and documented vulnerabilities in the state’s election infrastructure that allowed Russian military intelligence hackers to waltz right in soon after Kemp hosted Russian Ambassador Sergey Kislyak on a tour of the Center for Election Systems on the KSU campus in April of 2016.
The Georgia Supreme Court is also struggling with its own twisted Originalist logic, and just had another hundred-page wrestling match with itself to explain why the city of Valdosta could effectively sue a state entity, Lowndes County, in spite of sovereign immunity, by merely naming an individual county official in place of the county itself. The legislature has got a lot of fixing to do if we don’t fix the origin of the problem: Georgia Supreme Court justices who are wantonly violating the oath of office they took to uphold the current constitutions of Georgia and the United States, not the Confederate one.
So back to the question: Should Georgia citizens vote in favor of the referendum to allow an amendment to the Georgia Constitution to include a provision that is already written in it?
The answer is Yes, if we want to take the easiest open road to restore a citizen’s right to challenge unconstitutional acts backed by the power of the state — a right the Georgia Supreme Court has illegitimately usurped, according to the Georgia Constitution as it is written today.
If citizens really want to address the problem at the source, the illegitimate and unconstitutional actions of the Georgia Supreme Court, backed by legally-illiterate governors consolidating their fortress of unassailable political power, that alternate route will require some heavy bulldozing.
Attorney Humphreys, like Justice Blackwell, graduated summa cum laude, first in his class from the UGA School of Law.