under federal law, state officials sued in their official capacity are protected by Eleventh Amendment sovereign immunity
How later courts described this case
- under federal law, state officials sued in their official capacity are protected by Eleventh Amendment sovereign immunity
- holding the 1991 amendment effective January 1, 1991
- distinguishing between liability in state employee’s official capacity versus liability in personal capacity
- "Insofar as Durrence, the DOT employee sued here, may be sued for discretionary acts taken within the scope of his duties as an employee of the DOT, he is protected by official immunity.... [a]n action against a DOT employee for discretionary acts or omissions for which the employee is protected by official immunity must be brought as an action against the DOT."
Written by the judges who cited it.
The opinion
Hunt, Justice,
concurring.
1. The dissenters erroneously focus on whether the voter was deceived by the ballot language as to the effects of ratifying the new amendment and in speculating as to those effects. They assume that elimination of the insurance waiver embodied in the old amendment disadvantages citizens injured by state employees and that an in *55 formed voter would have voted against the new amendment. 2 The validity of that assumption is questionable given the disputes over the meaning of “insurance” under the old amendment, e.g., Logue v. Wright, 260 Ga. 206 ( 392 SE2d 235 ) (1990); Litterilla v. Hosp. Auth. of Fulton County, 262 Ga. 34 ( 413 SE2d 718 ) (1992), and the advantages which may be realized if a tort claims act is finally passed under the new amendment.
The proper focus of this court’s inquiry is whether the ballot language, even if deceptive as to the purpose of the amendment, prevented the voter from knowing which amendment he was voting for or against. Sears v. State, 232 Ga. 547 ( 208 SE2d 93 ) (1974); Burton v. Georgia, 953 F2d 1266 (11th Cir. 1992). There is no serious contention that the wording of this ballot was that misleading.
2.1 also write to comment on our previous opinions, which result, in Division 3 of this case, in holding that the DOT is a real party in interest. In Martin v. Dept. of Public Safety, 257 Ga. 300 ( 357 SE2d 569 ) (1987), and in Price v. Dept. of Transp., 257 Ga. 535 ( 361 SE2d 146 ) (1987), this court held the self-insurance fund provided by the state to cover its employees waived sovereign immunity under Art. I, Sec. II, Par. IX of the 1983 Constitution. That ruling was dependent on the language of the state self-insurance fund which purported to cover the liability of public officials in their personal and official capacities:
“This policy covers the following: PERSONAL INJURY, BODILY INJURY, SICKNESS, DISEASE OR DEATH AND PROPERTY DAMAGE caused by or resulting from error, omission or negligence in the performance of duties within the scope of an insured’s employment with a participating entity that has purchased coverage. . . . [Emphasis in original.] The Fund will pay on behalf of any insured, all sums which the insured shall become legally obligated to pay as damages, court costs and attorney fees, arising out of the performance of or failure to perform official duties in the insured’s capacity as an officer or employee and caused by the insured. The Fund will also pay on behalf of the insured all such sums within the policy limits arising out of the rendering of or failure to render services by any person for whose acts or failure to act such insured is legally responsible by. reason of the insured’s position.” [Emphasis supplied.]
*56 Martin v. Dept. of Public Safety, supra at pp. 302-303. Because the state had long been authorized to establish a state court of claims, but had not done so, we concluded that the legislature, in proposing the constitutional waiver and in authorizing the self-insurance fund, intended to provide compensation to citizens injured by public employees under all the circumstances set forth in the self-insurance program.
While suits against public employees in their personal capacities involve official immunity, suits against public employees in their official capacities are in reality suits against the state and, therefore, involve sovereign immunity. Price v. Dept. of Transp., supra, 257 Ga. at 537. Thus, it was the inclusion of self-insurance for public officials in their official capacities that resulted in the waiver of the sovereign immunity of the state under the constitutional amendment. As we held in Price v. Dept. of Transp., supra at p. 536, n. 2, the provision in the enabling legislation, OCGA § 45-9-5, attempting nevertheless to preserve immunity, was inconsistent with the constitution and ineffective.
The self-insurance fund at issue in Martin and Price also covered discretionary acts which otherwise would have been immune under principles of official immunity. Because insurance was provided that covered these acts, we held that the self-insurance fund also waived official immunity. With the waiver of sovereign and official immunity, the DOT was liable for the negligence of its employees under principles of respondeat superior. Martin v. Dept. of Public Safety, supra, 257 Ga. at 303.
It follows that because DOT is a real party in interest, venue is proper where the accident occurred under OCGA § 32-2-5.
To be an “informed” voter, one would have to read the various amendments, not just the ballot language. In all likelihood, few among the electorate choose to become so informed. Nevertheless, it remains an obligation which is, and should be, placed upon all of us as voters.