CourtListener 10680137

Testo completo

SUPREME COURT OF GEORGIA

March 15, 2023

The Honorable Supreme Court met pursuant to adjournment.

The following order was passed:

It appearing that the attached opinion decides a second-term
appeal, which must be concluded by the end of the December Term,
it is ordered that a motion for reconsideration, if any, must be
received in the Supreme Court E-Filing/Docket (SCED) System by
2:00 p.m. on Wednesday, March 22, 2023.

SUPREME COURT OF THE STATE OF GEORGIA
Clerk’s Office, Atlanta

I certify that the above is a true extract from the
minutes of the Supreme Court of Georgia.
Witness my signature and the seal of said court hereto
affixed the day and year last above written.

, Clerk
NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.

In the Supreme Court of Georgia

Decided: March 15, 2023

S22A1243, S22A1244. THE STATE et al. v. SASS GROUP, LLC et
al.

BETHEL, Justice.

The doctrine of sovereign immunity, as enshrined in our

Constitution, bars suits against the State and its employees in their

official capacities unless a statute or the Constitution itself

specifically waives that immunity. See Ga. Const. of 1983, Art. I,

Sec. II, Par. IX (e). The doctrine’s history in Georgia is long and

sometimes winding. 1 Here, we are called upon to examine the

1See, e.g., Gilbert v. Richardson, 264 Ga. 744, 745 (1) (452 SE2d 476)
(1994) (noting that Georgia adopted “[t]he common law doctrine of sovereign
immunity” in 1784); Intl. Bus. Machines Corp. v. Evans, 265 Ga. 215, 216 (1)
(453 SE2d 706) (1995) (holding that sovereign immunity does not bar suits
seeking injunctive relief to curtail alleged illegal or ultra vires acts of
government entities), overruled by Ga. Dept. of Nat. Res. v. Center for a
Sustainable Coast, Inc., 294 Ga. 593, 596-603 (2) (755 SE2d 184) (2014); Ga.
Dept. of Nat. Res., 294 Ga. at 596-603 (2) (holding that sovereign immunity
barred injunctive relief against the State and overruling Evans); Olvera v.
Univ. System of Georgia’s Bd. of Regents, 298 Ga. 425, 426-429 (782 SE2d 436)
(2016) (declaratory judgment action against state agency barred by sovereign
immunity); Lathrop v. Deal, 301 Ga. 408, 440 (III) (C) (801 SE2d 867) (2017)

1
newest chapter in this history.

In November of 2020, the people of Georgia, through the results

of a ballot question posed in the general election, amended our

Constitution to allow for a specific waiver of sovereign immunity.

See Ga. L. 2020, Act 596, p. 917, § 1. See also Ga. L. 2021, p. 362A

(setting forth referendum results). This new waiver allows citizens

to sue the State (and, in provisions unrelated to this appeal, to sue

local governments) for declaratory relief. See Ga. Const. of 1983, Art.

I, Sec. II, Para. V (b) (“Paragraph V”). To the extent that citizens

obtain a favorable ruling on their claim for declaratory relief, they

may then also seek injunctive relief to “enforce [the court’s]

judgment.” See id. at Para. V (b) (1). To take advantage of this new

waiver of the doctrine of sovereign immunity, however, the

Constitution provides that such actions must be brought

“exclusively” against the State. See id. When a plaintiff’s suit

violates this exclusivity provision, the Constitution requires the suit

(extending sovereign immunity to suits against the State for declaratory and
injunctive relief).
2
to be dismissed. See id. at Para. V (b) (2).

For reasons set forth more fully below, we hold that this

exclusivity provision of Paragraph V means what it says: it requires

dismissal of a lawsuit brought under that paragraph against the

State if it names defendants other than the State or local

governments specifically authorized by that provision. When other

defendants are named in such a lawsuit, the Constitution requires

that the entire suit be dismissed. Here, the plaintiffs’ suit named a

defendant for whom a waiver is not provided by Paragraph V.

Accordingly, the Constitution requires the suit to be dismissed. We

therefore vacate the trial court’s grant of an interlocutory injunction,

reverse the denial of the State’s motion to dismiss, and remand this

case with direction that it be dismissed.

I. Background

The plaintiffs in the underlying suit are purveyors of, among

other things, hemp-derived products. As such, they operate in

treacherous waters created by the tension among existing federal

criminal law and its selective enforcement, existing state law and

3
related enforcement decisions, and the public policy battles still

swirling around the use of marijuana, hemp, tetrahydrocannabinol

(“THC”), cannabidiol (“CBD”), and related compounds. Plaintiffs’

litigation interest is based upon a desire to affirm their right to sell

certain products. More specifically, SASS Group, LLC and Great

Vape, LLC (collectively, the “Plaintiffs”) seek declaratory judgment

affirming the legality of their actions and injunctive relief to protect

their future commercial activities.

As background, in 2018, the United States Congress enacted

the Agriculture Improvement Act of 2018, which, among other

things, legalized the possession and distribution of hemp and hemp

extracts. See Pub. L. No. 115-334, 132 Stat. 4490, and 7 USC § 1639o

(1). That same year, the federal Controlled Substances Act was also

amended to exclude the THC found in hemp from the list of

controlled substances. See 21 USC §§ 802 (16) (B) (i), 812 (Schedule

I (c) (17)). Several states similarly enacted legislation distinguishing

hemp as a non-controlled substance, including Georgia. In 2019, the

Georgia General Assembly passed the Georgia Hemp Farming Act,

4
which adopted the federal definition of hemp and hemp products and

permitted their cultivation and sale under certain circumstances.

See OCGA §§ 2-23-3 – 2-23-12. The hemp industry, it appears, has

since taken root in Georgia. Plaintiffs are businesses in Gwinnett

County, which, until recently, sold Delta-8-tetrahydrocannabinol

(“Delta-8-THC”), Delta-10-tetrahydrocannabinol (“Delta-10-THC”),

and other hemp-derived products that they allege fall within

Georgia’s definition of legal “hemp products.”

On January 25, 2022, the Gwinnett County District Attorney

issued a press release announcing that her office would pursue the

prosecution of “individuals and businesses who engage in the

possession, sale or distribution of . . . [S]chedule 1 controlled

substances.” The press release further described Delta-8-THC and

Delta-10-THC as controlled substances. Plaintiffs allege that the

District Attorney subsequently directed raids and arrests related to

the possession of Delta-8-THC and Delta-10-THC, which included

the seizure of millions of dollars in currency, inventory, and other

property from businesses similar to Plaintiffs’ businesses.

5
Plaintiffs filed a verified complaint against the State of Georgia

and the District Attorney in her individual capacity in the Superior

Court of Fulton County. Plaintiffs sought a judgment against the

State declaring that commercial products containing cannabinoids

derived from hemp, including, but not limited to, products

containing Delta-8-THC, Delta-10-THC, CBD, cannabinol (“CBN”),

and cannabigerol (“CBG”) are “hemp products” as defined by OCGA

§ 2-23-3 and thus may be lawfully possessed and sold throughout

Georgia. Plaintiffs also filed a motion seeking a temporary

restraining order and an interlocutory injunction against the

District Attorney in her individual capacity. The trial court granted

Plaintiffs’ request for a temporary restraining order, and, after a

hearing, an interlocutory injunction against the District Attorney in

her individual capacity, finding that Plaintiffs would otherwise

continue to suffer economic harm as a result of the District

Attorney’s course of conduct described in the January 25 press

release.

The Defendants filed a motion to dismiss, arguing primarily

6
that Plaintiffs’ claims were barred by sovereign immunity. 2 The

Defendants argued, among other things, that the limited waiver of

sovereign immunity in Paragraph V did not apply to Plaintiffs’ case

because both the State of Georgia and the District Attorney were

named as defendants, and Paragraph V states that an action

brought pursuant to its limited waiver must name the State

exclusively as the defendant. The trial court denied the motion to

dismiss. 3 The Defendants’ sovereign immunity argument, however,

was not substantively addressed in the trial court’s order.4

Following the grant of separate certificates of immediate

review, the Defendants sought leave to file interlocutory appeals

from the trial court’s denial of their motion to dismiss and the trial

2 The Defendants incorporated arguments made in their response to
Plaintiffs’ motion for interlocutory injunction regarding the lack of likelihood
that Plaintiffs would prevail on the merits.
3 Plaintiffs subsequently filed an amended verified complaint seeking

declaratory and injunctive relief against the District Attorney and declaratory
relief against the State.
4 In a separate order granting Plaintiffs’ motion for an interlocutory

injunction, the trial court determined that Plaintiffs were likely to prevail on
the merits, finding persuasive decisions in another Georgia trial court and in
Texas and Kentucky that held that products containing Delta-8-THC are legal
and are not considered a controlled substance.
7
court’s grant of Plaintiffs’ request for interlocutory injunction. We

granted leave to seek interlocutory review, and the Defendants

timely brought these appeals. Case S22A1243 concerns the trial

court’s grant of an interlocutory injunction. Case S22A1244 concerns

the trial court’s denial of the motion to dismiss filed by the

Defendants.

II. Analysis

Article I, Section II, Paragraph V of the State Constitution

waives sovereign immunity for certain “actions” seeking declaratory

relief for alleged constitutional violations by state entities, officials,

and employees specifically listed therein. 5 See Ga. Const. of 1983,

Art. I, Sec. II, Para. V. 6 “Actions filed pursuant to this Paragraph”

5 As noted in footnote 6 below, Paragraph V also pertains to suits against
local governments. Our omission of any reference to those potential parties
here is meant only to avoid confusion in addressing the questions presented by
this case. Further, nothing in our analysis should be read as pertaining to a
case involving multiple defendants who are all specifically delineated in the
waiver provision of Paragraph V. That issue is not presented in this case, and
we do not address it here.
6 The portion of Ga. Const. Art. I, § II, Para. V relevant here provides as

follows:
(b) (1) Sovereign immunity is hereby waived for actions in
the superior court seeking declaratory relief from acts of the state

8
must be filed “exclusively against the state and in the name of the

State of Georgia.” Ga. Const. of 1983, Art. I, Sec. II, Para. V (b) (2).

Such actions which name “as a defendant any individual, officer, or

entity other than as expressly authorized under this paragraph shall

be dismissed.” Id.

The crux of the dispute between the parties in this matter is

or any agency, authority, branch, board, bureau, commission,
department, office, or public corporation of this state or officer or
employee thereof or any county, consolidated government, or
municipality of this state or officer or employee thereof outside the
scope of lawful authority or in violation of the laws or the
Constitution of this state or the Constitution of the United States.
Sovereign immunity is further waived so that a court awarding
declaratory relief pursuant to this Paragraph may, only after
awarding declaratory relief, enjoin such acts to enforce its
judgment. Such waiver of sovereign immunity under this
Paragraph shall apply to past, current, and prospective acts which
occur on or after January 1, 2021.
(2) Actions filed pursuant to this Paragraph against this
state or any agency, authority, branch, board, bureau, commission,
department, office, or public corporation of this state or officer or
employee thereof shall be brought exclusively against the state
and in the name of the State of Georgia. Actions filed pursuant to
this Paragraph against any county, consolidated government, or
municipality of the state or officer or employee thereof shall be
brought exclusively against such county, consolidated government,
or municipality and in the name of such county, consolidated
government, or municipality. Actions filed pursuant to this
Paragraph naming as a defendant any individual, officer, or entity
other than as expressly authorized under this Paragraph shall be
dismissed.

9
the meaning of the word “action” as used in this constitutional

provision. Plaintiffs argue that “action” as used here means a claim

or cause of action rather than an entire lawsuit. Under that view,

they say, courts determine whether the exclusivity provision is met

on a claim-by-claim basis. If a claim relies on the waiver provided by

Paragraph V—such as a claim for declaratory relief from the acts of

a state agency—then the claim must comply with the exclusivity

provision or the claim is subject to dismissal. But a different claim

within the same lawsuit that does not rely on Paragraph V’s waiver

would not implicate the exclusivity provision. In other words,

Plaintiffs say that a lawsuit can include all kinds of claims against

all kinds of defendants, and the exclusivity provision requires

dismissal only of claims within that lawsuit that both attempt to

avail themselves of Paragraph V’s waiver and name in that same

claim a defendant other than the State (or the local government at

issue).

The Defendants, by contrast, argue that “action” as used in this

Paragraph means the entire case or lawsuit. Under this view, courts

10
determine whether the exclusivity provision is met by looking at the

lawsuit as a whole. If the plaintiffs in the lawsuit try to avail

themselves of Paragraph V’s waiver of sovereign immunity in any

way—i.e., even for one claim—then it is an “[a]ction filed pursuant

to” that Paragraph and the lawsuit must be brought “exclusively

against the state and in the name of the State of Georgia” (or against

the relevant local government as may be the case). If a lawsuit does

not comply, then the entire lawsuit must be dismissed, even if some

claims within the lawsuit could have otherwise been brought on

their own without relying on Paragraph V’s waiver. For the reasons

that follow, we agree with the Defendants that “action” as it is used

in this constitutional provision refers to an entire case or lawsuit, so

we reverse the trial court’s denial of the Defendants’ motion to

dismiss and vacate the grant of the Plaintiffs’ interlocutory

injunction.

a. “[W]hen we consider the meaning of a constitutional

provision, we must seek to ascertain the way in which the text most

reasonably would have been understood at the time of its adoption,

11
reading it as an ordinary speaker of the English language would.”

(Citation and punctuation omitted.) Lathrop, 301 Ga. at 440 (III) (C).

Doing so “requires careful attention to not only the language of the

clause in question, but also its broader legal and historical context,

which are the primary determinants of a text’s meaning.” Ammons

v. State, 315 Ga. 149, 163 (3) (880 SE2d 544) (2022). Our efforts in

this regard are aided greatly in the present case by the fact that the

language at issue here was only recently incorporated into our

Constitution. Unlike those occasions in which we have been called

upon to review language as it was understood when it was adopted

many years ago, we find ourselves today considering the ordinary

meaning of the English language as it is understood in present-day

Georgia.

“In understanding a constitutional provision, we must be

mindful that constitutions are the result of popular will, and their

words are to be understood ordinarily in the sense they convey to

the popular mind.” (Citation and punctuation omitted.) Georgia

Motor Trucking Assn. v. Ga. Dept. of Revenue, 301 Ga. 354, 357 (2)

12
(801 SE2d 9) (2017). We therefore consider the ordinary meaning of

the words as they appear in the Constitution. See id. at 356 (2)

(“[W]e afford the constitutional text its plain and ordinary meaning,

view the text in the context in which it appears, and read the text in

its most natural and reasonable way[.]” (citation and punctuation

omitted)); Savage v. State, 297 Ga. 627, 635 (4) (b) (774 SE2d 624)

(2015) (“We similarly presume that the words used in the

Constitution bear their ordinary meanings at the time those words

were included.”). And, of course, “it is the understanding of the text

by reasonable people familiar with its legal context that is

important, not whether every citizen understood the particular

meanings of a constitutional provision.” 7 Elliott v. State, 305 Ga.

7 This principle articulated in Elliott, distilled from other cases, should
not be understood as suggesting that the meaning assigned to constitutional
language is based on the subjective understanding available only to some
special group. On the contrary, it is always the original public meaning that
controls. Thus, the reference to “reasonable people familiar with [the] legal
context” is not a description of some particular or specific subset of the
populace. Rather, this principle conveys that the legal context must be
considered in discerning the meaning of the language, and that legal context
sometimes takes work to understand. Indeed, the analysis in this case
illustrates that point. When we consider the meaning of terms appearing in
the Constitution – like “action” – we do not solely consider the meaning they

13
179, 207 (III) (C) (ii) (824 SE2d 265) (2019).

The ordinary-meaning question we have to answer here is

whether the word “action,” as used in Paragraph V, means an entire

lawsuit or only a claim that is brought in a lawsuit. One place to look

for ordinary meaning is contemporaneous dictionaries from around

the time when the text was adopted. Dictionaries cannot be the

definitive source of ordinary meaning in questions of textual

interpretation because they are acontextual, and context is a critical

determinant of meaning. See Antonin Scalia & Bryan Garner,

Reading Law: The Interpretation of Legal Texts 70 (2012). But as

long as we recognize this limitation, they offer a useful reference for

any such analysis. And here, the dictionaries from the time the text

was adopted generally define an “action” as a lawsuit or

“proceeding,” whereas a “claim” is defined as being a distinct part of

might have in ordinary conversation and in isolation; we must consider also
the broader legal context in which these terms were adopted. The sources we
consider in that analysis are not private or subjective; constitutional history,
statutory history, decisional law, and similar sources are objective sources of
publicly discoverable meaning properly within our consideration. And this is
so whether or not every member of the public is aware of the substance of those
sources.
14
that suit that asserts a particular demand or right. See, e.g.,

Merriam Webster’s Collegiate Dictionary (11th ed. 2020) (defining

“action” as “the initiating of a proceeding in a court of justice by

which one demands or enforces one’s right; also : the proceeding

itself” and “claim” as “a demand for something due or believed to be

due”); Shorter Oxford English Dictionary on Historical Principles

(6th ed. 2007) (defining “action” as “[a] legal process or suit”). And

the same is true if we look to legal dictionaries. See, e.g., Black’s Law

Dictionary (11th ed. 2019) (defining an “action” as “[a] civil or

criminal judicial proceeding” and “claim” as “[a] demand for money,

property, or a legal remedy to which one asserts a right; esp[ecially]

the part of a complaint in a civil action specifying what relief the

plaintiff asks for”).

This understanding of “action” as a lawsuit or proceeding in

which claims are brought finds further support in common usage. In

both judicial decisions and statutes, “action” is more commonly used

to refer to a “whole lawsuit” rather than a claim. See, e.g., Joyner v.

Leaphart, 314 Ga. 1, 4-7 (2) (a) (875 SE2d 729) (2022) (referring to

15
“actions” as lawsuits and distinguishing between the two-dismissal

rule’s applicability to “actions” and “claims”); McInerney v.

McInerney, 313 Ga. 462, 463 (1) (870 SE2d 721) (2022) (using the

term “action” to refer to a lawsuit); Riley v. Georgia Assn. of Club

Execs., 313 Ga. 364, 364 (870 SE2d 405) (2022) (same); Dept. of Pub.

Safety v. Ragsdale, 308 Ga. 210, 210 (839 SE2d 541) (2020) (same);

Plummer v. Plummer, 305 Ga. 23, 23-24 (823 SE2d 258) (2019)

(same); RES-GA McDonough, LLC v. Taylor English Duma LLP,

302 Ga. 444, 444-445 (807 SE2d 381) (2017) (same); Price v. Dept. of

Transp. of Georgia, 257 Ga. 535, 536 (361 SE2d 146) (1987),

superseded by constitutional amendment as stated in Lathrop, 301

Ga. at. 422 (II) (B) (“We note the waiver speaks of ‘actions’ and of

‘claims.’ For certain actions there is a waiver of sovereign immunity.

They are: (1) Those actions involving a claim against the state, or

any department or agency, (2) for which liability insurance

protection for such claims has been provided, (3) but only to the

extent of insurance provided. So, the task is to determine if the claim

asserted here is of the type described in the constitution. If it is,

16
there is a waiver of sovereign immunity, not for the claim, but for

the action.” (emphasis supplied; footnote omitted)). See also OCGA

§§ 9-11-2 (“There shall be one form of action, to be known as ‘civil

action.’”); 9-11-3 (noting that a “civil action” commences with the

filing of the complaint and case filing form); 9-2-5 (a) (“No plaintiff

may prosecute two actions in the courts at the same time for the

same cause of action and against the same party.”); 9-2-22 (“[T]he

party plaintiff may join in one action, as parties defendants, all

parties who allegedly contributed in the construction of the

improvements. . . .”); 9-2-61 (using the words “case” and “action”

interchangeably); Davis & Shulman’s, Ga. Practice & Procedure, §

1:1 (2022-2023 ed.) (“‘Action,’ ‘suit’ and ‘proceeding’ are often used

synonymously.”).

To be sure, in other instances, “action” can be understood as a

reference to things other than a lawsuit, such as a claim, as

Plaintiffs argue. See, e.g., OCGA § 9-3-70 (defining an “action for

medical malpractice” as meaning “any claim for damages resulting

from the death of or injury to any person”). Indeed, the Civil Practice

17
Act broadly defines an “action” as a “judicial means of enforcing a

right.” OCGA § 9-2-1. See also Housing Auth. of Savannah v. Greene,

259 Ga. 435, 437 (2) (383 SE2d 867) (1989) (considering a third-party

complaint an “action” under OCGA § 9-2-1); Buckler v. Dekalb

County Bd. of Tax Assessors, 288 Ga. App. 332, 333 (654 SE2d 184)

(2007) (noting that an appeal qualifies as an “action”); Jordan v.

Lamberth, Bonapfel, Cifelli, Willson & Stokes, P.A., 206 Ga. App.

178, 179 (1) (a) (424 SE2d 859) (1992) (qualifying counterclaims as

an “action”). But “action” is ordinarily and more commonly used to

mean a case or lawsuit, and other contextual clues within the

Constitution confirm that to be the case with respect to the specific

provision at issue here.

b. Our determination that the exclusivity requirement in

Paragraph V relates to lawsuits rather than claims is further

confirmed by the context of other language in Paragraph V and other

parts of the same section of the Constitution. “[W]hen we determine

the meaning of a particular word or phrase in a constitutional

provision or statute, we consider text in context, not in isolation.”

18
Elliott, 305 Ga. at 186 (II) (B). See also Stephens v. Reid, 189 Ga.

372, 379 (1, 2) (6 SE2d 728) (1939) (in interpreting an amendment

of the constitution, we look to “the language and arrangement of the

article, section and paragraph,” as well as “the object to be secured,

and . . . extrinsic matters [such] as the circumstances attending its

ratification, the sense in which it was understood by

contemporaries, and its relation to other parts of the constitution”).

We may also “refer to the rules of English grammar, inasmuch as

those rules are the guideposts by which ordinary speakers of the

English language commonly structure their words,” and the drafters

of the constitutional amendment are presumed to know the rules of

grammar. (Citation omitted.) Deal v. Coleman, 294 Ga. 170, 172-173

(1) (a) (751 SE2d 337) (2013) (stating the same with respect to

statutory text).

In applying these principles, we note that subparagraph (b) (4)

provides that “[n]o damages, attorney’s fees, or costs of litigation

shall be awarded in an action filed pursuant to this Paragraph,

unless specifically authorized by Act of the General Assembly.”

19
(Emphasis supplied.) Ga. Const. of 1983, Art. I, Sec. II, Para. V (b)

(4). We would ordinarily say that attorney fees, litigation expenses,

or damages would be awarded in a lawsuit at its conclusion. See,

e.g., OCGA § 9-15-14 (a) (“In any civil action in any court of record

of this state, reasonable and necessary attorney’s fees and expenses

of litigation shall be awarded to any party against whom another

party has asserted a claim,” etc. (emphasis supplied)); McGahee v.

Rogers, 280 Ga. 750, 754 (2) (632 SE2d 657) (2006) (“[A]n award of

attorney’s fees under OCGA § 19-6-2 in this case would require a

determination whether McGahee violated the divorce decree.”

(citation and punctuation omitted; emphasis supplied)); L.S. Land

Co. v. Burns, 275 Ga. 454, 457 (3) (569 SE2d 527) (2002) (“[W]e

cannot hold as a matter of law that attorney’s fees in this

reformation case were not authorized under [OCGA] § 13-6-11.”). It

would not make sense, by contrast, to say that such items shall be

awarded “in” a claim. In other words, “action” in subparagraph (b)

(4) logically refers to an entire lawsuit. Because we presume that the

same meaning of “action” applies throughout subparagraph (b),

20
Clarke v. Johnson, 199 Ga. 163, 164-165 (33 SE2d 425) (1945), this

phrasing offers further support that “action” as used in the

exclusivity provision refers to the entire lawsuit.

Additionally, other provisions of our Constitution further

support interpreting “action” in Paragraph V to mean a lawsuit

rather than a claim. Article I, Section II, Paragraph IX (a) authorizes

enactment of the State Tort Claims Act and, in doing so, states that

“the General Assembly may provide by law for procedures for the

making, handling, and disposition of actions or claims” against the

State and various state entities. (Emphasis supplied.) Georgia

Constitution of 1983, Art. I, Sec. II, Para. IX (a). This authorizing

language distinguishes between “actions or claims,” which are set

forth in the disjunctive. See Rockdale County v. U.S. Enterprises,

Inc., 312 Ga. 752, 766 (3) (b) (865 SE2d 135) (2021) (noting that the

word “or” normally indicates an alternative and is commonly

understood as a disjunctive term). Accordingly, it necessarily follows

that each of these words was intended to have a different meaning,

as reading “actions” to mean “claims” in this provision would render

21
one of the two words superfluous, which runs afoul of this Court’s

routine admonition that “courts generally should avoid a

construction that makes some language mere surplusage.”

(Punctuation omitted.) Middleton v. State, 309 Ga. 337, 342 (3) (846

SE2d 73) (2020). See also Blum v. Schrader, 281 Ga. 238, 241 (2)

(637 SE2d 396) (2006) (“[I]t is a basic rule of constitutional

construction that no provision is presumed to be without meaning

and that all of its parts should be construed so as to give a sensible

and intelligent effect to each of them.”); Price, 257 Ga. at 536 & n.3

(distinguishing between “action” and “claim” under a prior version

of Paragraph IX). We must therefore infer from the Constitution’s

disjunctive use of “action or claim” in this paragraph that its drafters

intended a difference in the meanings of these two words. 8 See

generally Blum, 281 Ga. at 241 (2). And in this case, this common

understanding of “action” applies with equal force to the later-added

8 Indeed, other parts of our Constitution likewise distinguish an “action”
from a “cause of action.” Compare Ga. Const. of 1983, Art. VI, Sec. II, Para. I
(using “action” and “case” interchangeably), with Art. I, Sec. I, Para. XXX (c)
(1) (using “cause of action”).
22
Paragraph V in the same section of our Constitution, as we presume

that the same meaning attaches to a given word or phrase
wherever it occurs in a constitution; and where a word or
phrase is used in one part of a constitution in a plain and
manifest sense, it is to receive the same interpretation
when used in every other part, unless it clearly appears,
from the context or otherwise, that a different meaning
should be applied to it.

Clarke, 199 Ga. at 164-165. In short, other provisions of our

Constitution differentiate between “action” and “claim,” and this

context further confirms that “action” in Paragraph V refers to a

lawsuit as a whole rather than a claim in a lawsuit.

c. Plaintiffs offer a final argument based on the consequences

of this reading. They point out that if “action” in Paragraph V means

the whole lawsuit, then Paragraph V requires plaintiffs who wish to

rely on its waiver to file a lawsuit containing only a claim or claims

for declaratory relief against “the State.” Any other related claims

(like their claim against the District Attorney here) must be filed in

a separate lawsuit, or the entire lawsuit will be dismissed—even if

the related claims do not rely on Paragraph V’s waiver. That

reading, they contend, favors form over substance, kicks perfectly

23
viable claims out of court, and runs counter to the goal of judicial

efficiency.

Plaintiffs are correct that our rules of civil practice and related

doctrines generally demonstrate a preference that litigants bring all

relevant claims related to their case in one action. See, e.g., OCGA

§§ 9-11-13 (regarding counter- and cross-claims); 9-11-18 (joinder of

claims and remedies); 9-11-19 (joinder of persons); 9-11-22

(interpleader); 9-11-24 (intervention); Body of Christ Overcoming

Church of God, Inc. v. Brinson, 287 Ga. 485, 486 (696 SE2d 667)

(2010) (“The doctrine of res judicata prevents the re-litigation of all

claims which have already been adjudicated, or which could have

been adjudicated, between identical parties or their privies in

identical causes of action.”). But the exclusivity provision’s apparent

tension with this general anti-claim-splitting preference makes

sense in light of the relevant legal context and history.

In Lathrop, this Court made clear that

[t]he constitutional doctrine of sovereign immunity
bar[red] any suit against the State to which it has not
given its consent, including suits against state

24
departments, agencies, and officers in their official
capacities, and including suits for injunctive and
declaratory relief from the enforcement of allegedly
unconstitutional laws.

301 Ga. at 444 (IV). See also Sustainable Coast, 294 Ga. at 603 (2)

(holding “that sovereign immunity bars the [plaintiff]’s claim for

injunctive relief against the State”). However, we noted that the

plaintiffs could pursue “prospective remedies . . . against state

officers in their individual capacities.” Id. See also Sustainable

Coast, 294 Ga. at 603 (2) (noting that “citizens aggrieved by the

unlawful conduct of public officers . . . must seek relief against such

officers in their individual capacities.”).

Paragraph V was enacted in the wake of Lathrop, which made

clear that suits against state officers and employees in their official

capacities were indeed barred by sovereign immunity. This

constitutional provision created a new, limited express waiver of

sovereign immunity for specific types of suits seeking declaratory

and injunctive relief against the State. But if a plaintiff wants to

avail himself of the limited waiver provided by Paragraph V, then

25
he must bring the action “exclusively against the state and in the

name of the State of Georgia,” which forecloses the option of also

suing a state actor in his or her individual capacity in that same

suit. Accordingly, the consequences Plaintiffs point out track the

provision’s language and context, including the broader context in

which the constitutional amendment to Paragraph V was enacted,

and therefore are not a reason to deviate from the ordinary meaning

of the word “action” as used here.

d. In sum: Paragraph V provides a limited waiver of sovereign

immunity “for actions in the superior court seeking declaratory

relief from acts of the state” or the state entities specifically listed in

Paragraph V. Ga. Const. of 1983, Art. I, Sec. II, Para. V (b) (1).

Paragraph V (b) (2) further provides that actions filed pursuant to

Paragraph V must be filed “exclusively against the state and in the

name of the State of Georgia” and that “[a]ctions filed pursuant to

this Paragraph naming as a defendant any individual, officer, or

entity other than as expressly authorized under this Paragraph

shall be dismissed.” (Emphasis supplied.) See Ga. Const. of 1983,

26
Art. I, Sec. II, Para. V (b) (2). And, as explained above, we conclude

that “actions” in this context means “lawsuit.”

Accordingly, if a lawsuit is filed against the State pursuant to

Paragraph V and that suit includes an independent claim against

another party not specified in that paragraph’s waiver provision,

then the entire lawsuit must be dismissed. See id. Thus, the

presence of a named defendant to whom Paragraph V’s waiver does

not apply is fatal to an “action” that relies on Paragraph V’s waiver

of sovereign immunity.

Here, because their claims against the State for declaratory

and injunctive relief required Paragraph V’s waiver of sovereign

immunity, the Plaintiffs filed this lawsuit against the Defendants

pursuant to Paragraph V. The District Attorney, in her individual

capacity, was an additional named defendant not authorized by

Paragraph V. 9 Because we have determined that this suit qualifies

9 In briefing and at oral argument, there was disagreement between the
parties over which complaint was the operative pleading that the Court ought
to consider. But deciding this issue is not essential to the resolution of this
case, as both complaints named the District Attorney in her individual capacity

27
as an “action” under Paragraph V, the entire case must be dismissed

under the plain language of that constitutional provision. 10 See Ga.

Const. of 1983, Art. I, Sec. II, Para. V (b) (2).

For these reasons, we reverse the trial court’s denial of the

State’s motion to dismiss, vacate the order granting an interlocutory

injunction as the question should not have been reached by the trial

court, and remand this case with direction that it be dismissed.

Judgment reversed and case remanded with direction. All the
Justices concur.

in addition to the State.
In any event, Plaintiffs’ suggestion that the Court should view their
amended complaint as one encompassing two separate “actions” that are joined
or “consolidated” into one case under OCGA § 9-11-20 is problematic. The
relevant permissive joinder provision of OCGA § 9-11-20 provides that “[a]ll
persons may be joined in one action as defendants if there is asserted against
them jointly, severally, or in the alternative any right to relief in respect of or
arising out of the same transaction, occurrence, or series of transactions or
occurrences and if any question of law or fact common to all of them will arise
in the action.” (Emphasis supplied.) OCGA § 9-11-20 (a). The statutory use of
the singular to describe an action which includes permissively joined claims
and/or parties does not support the conclusion that the use of “action” in the
constitutional text should be understood to relate only to the claim against the
State.
10 Because of our holding here, we need not address arguments as to the

interlocutory injunction beyond vacating the order granting relief because the
matter should never have been reached. We need not also address the other
arguments raised by the Plaintiffs or the Defendants, including whether the
Plaintiffs may still bring a separate action against the District Attorney in her
individual capacity.
28

315 Ga. 893
FINAL COPY

S22A1243, S22A1244. THE STATE et al. v. SASS GROUP, LLC et
al.

BETHEL, Justice.

The doctrine of sovereign immunity, as enshrined in our

Constitution, bars suits against the State and its employees in their

official capacities unless a statute or the Constitution itself

specifically waives that immunity. See Ga. Const. of 1983, Art. I,

Sec. II, Par. IX (e). The doctrine’s history in Georgia is long and

sometimes winding.1 Here, we are called upon to examine the newest

chapter in this history.

1 See, e.g., Gilbert v. Richardson, 264 Ga. 744, 745 (1) (452 SE2d 476)

(1994) (noting that Georgia adopted “[t]he common law doctrine of sovereign
immunity” in 1784); Intl. Bus. Machines Corp. v. Evans, 265 Ga. 215, 216 (1)
(453 SE2d 706) (1995) (holding that sovereign immunity does not bar suits
seeking injunctive relief to curtail alleged illegal or ultra vires acts of
government entities), overruled by Ga. Dept. of Nat. Res. v. Center for a
Sustainable Coast, Inc., 294 Ga. 593, 596-603 (2) (755 SE2d 184) (2014)
(holding that sovereign immunity barred injunctive relief against the State
and overruling Evans); Olvera v. Univ. System of Ga.’s Bd. of Regents, 298 Ga.
425, 426-428 (782 SE2d 436) (2016) (declaratory judgment action against state
agency barred by sovereign immunity); Lathrop v. Deal, 301 Ga. 408, 440 (III)
(C) (801 SE2d 867) (2017) (extending sovereign immunity to suits against the
State for declaratory and injunctive relief).
In November 2020, the people of Georgia, through the results

of a ballot question posed in the general election, amended our

Constitution to allow for a specific waiver of sovereign immunity.

See Ga. L. 2020, p. 917, § 1. See also Ga. L. 2021, p. 362A (setting

forth referendum results). This new waiver allows citizens to sue the

State (and, in provisions unrelated to this appeal, to sue local

governments) for declaratory relief. See Ga. Const. of 1983, Art. I,

Sec. II, Par. V (b) (“Paragraph V”). To the extent that citizens obtain

a favorable ruling on their claim for declaratory relief, they may

then also seek injunctive relief to “enforce [the court’s] judgment.”

See id. at Par. V (b) (1). To take advantage of this new waiver of the

doctrine of sovereign immunity, however, the Constitution provides

that such actions must be brought “exclusively” against the State.

See id. at Par. V (b) (2) When a plaintiff’s suit violates this

exclusivity provision, the Constitution requires the suit to be

dismissed. See id.