DEPARTMENT OF TRANSPORTATION v. MIXON
S20G1410
In the Supreme Court of Georgia
Decided: October 5, 2021
PETERSON, Justice.
Thе Georgia Constitution provides that, as a general matter, “private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid.”
1. Background
Cathy Mixon sued the Georgia Department of Transportation (“GDOT,” or “the State“), bringing claims of nuisance and inverse condemnation based on alleged flooding on her property following a road-widening project. Mixon claims that GDOT‘s failure to maintain its storm water drainage systems has resulted in regular flooding, drainage, and erosion problems “within and around” her property. Her
The Court of Appeals granted GDOT‘s application for interlocutory appeal and then affirmed, holding in relevant part that the trial court did not err in ruling that sovereign immunity is waived for Mixon‘s claims for damages and injunctive relief. See Mixon, 355 Ga. App. at 465 (1), 467 (3). As to Mixon‘s inverse condemnation claim for damages, the Court of Appeals properly applied Georgia appellate precedent holding that the Just Compensation Provision waives sovereign immunity for damages claims premised on a taking or damaging of private property. See id. at 465 (1) (citing Ga. Dept. of Nat. Res. v. Center for a Sustainable Coast, 294 Ga. 593, 600 (2) (755 SE2d 184) (2014), and Bray v. Dept. of Transp., 324 Ga. App. 315, 317 (2) (750 SE2d 391) (2013)). GDOT also argued that sovereign immunity barred Mixon‘s claim for injunctive relief. But the Court of Appeals rejected that argument by merely referring back to its analysis as to
As we discussed in greater detail in Division 1, sovereign immunity does not apply to Mixon‘s claim for inverse condemnation arising out of a nuisance. Accordingly, the trial court did not err in refusing to apply the doctrine of sovereign immunity to dismiss Mixon‘s claim for injunctive relief.
Mixon, 355 Ga. App. at 467 (3).
We granted GDOT‘s petition for a writ of certiorari to address whether sоvereign immunity had been waived for Mixon‘s claim for injunctive relief. We affirm, although with different reasoning and a narrower holding.
2. Analysis
This case involves the interaction between two longstanding principles of Georgia law. The first principle, known as sovereign immunity, provides that the State cannot be subjected to any legal action without its express consent. See
We thus review the standard for waiver of sovereign immunity and our prior treatment of the Just Compensation Provision, particularly with respect to the extent to which that Provision acts as a waiver of sovereign immunity. We conclude that the Just Compensation Provision waives sovereign immunity for some claims of injunctive relief. We also recognize that textual changes to the Just Compensation Provision — with which this Court has not grappled previously — may limit the scope of that waiver for claims for injunctive relief, but not in a way that affects this case in its current posture.
(a) A constitutional provision may waive sovereign immunity by necessary implication, not merely by explicit language.
Article I, Section II, Paragraph IX of the Georgia Constitution states that, except as otherwise provided in that paragraph, “sovereign immunity extends to the state and all of its departments and agencies” and “can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.”
“The burden of demonstrating a waiver of sovereign immunity rests upon the party asserting it.” Ga. Dept. of Labor v. RTT Assocs., Inc., 299 Ga. 78, 81 (1) (786 SE2d 840) (2016). Implied waivers of sovereign immunity are generally disfavored. See Ga. Dept. of Corrections v. Couch, 295 Ga. 469, 473-474 (2) (759 SE2d 804) (2014); Colon v. Fulton County, 294 Ga. 93, 95 (1) (751 SE2d 307) (2013), overruled on other grounds by Rivera v. Washington, 298 Ga. 770, 778 n.7 (784 SE2d 775) (2016); Currid v. DeKalb State Court Probation Dept., 285 Ga. 184, 186-187 (674 SE2d 894) (2009). But we have recognized implied waivers when the implication necessarily arises. Seе id. at 95-96 (1) (sovereign immunity does not bar claims under whistleblower retaliation statute,
(b) The text and context of the Just Compensation Provision show that it waives sovereign immunity for certain claims for injunctive relief.
Like sovereign immunity, the principle that private property may not be appropriated by the government without compensation also was a longstanding part of the common law. We applied this principle even before it was explicitly included in the Georgia Constitution. See Parham v. Justices of Inferior Court of Decatur County, 9 Ga. 341, 349 (1851) (“It is not, therefore, necessаry to go to the Federal Constitution for [the principle]. It came to us with the Common Law — it is part and parcel of our social polity — it is inherent in ours, as well as every other free government. At Common Law, the Legislature can compel the use of private property, but not arbitrarily. It treats with the citizen, as owner, for the purchase, and whilst he cannot withhold it upon offer of compensation, they cannot seize it without such tender.“); Young v. McKenzie, 3 Ga. 31, 44 (1847) (“[The federal Takings Clause, see
Early on, some key concepts based on this principle began to emerge in our case law applying the common law right — i.e., even before the Just Compensation Provision entered the Georgia Constitution in 1861. See
Second, private landowners could obtain an injunction against government actors to stop a taking where compensation had not been provided. See Parham, 9 Ga. at 344-355 (motion for injunction as to unenclosed lands should have been granted given that statutory scheme made no provision for compensating owner upon taking of such lands). But we allowed such claims with the caveat that injunctions could be obtained only if the landowners had satisfied whatever requirements the law placed on them to obtain compensation through established procedures. See id. at 355-358 (motion for injunction as to enclosed lands properly denied on basis that landowner had not made application pursuant to statutory requirements). Similarly, such an injunction would issue only pending government satisfaction of its obligations under such procedure. See Young, 3 Ga. at 45 (“The landholder stands upon all his rights, and may enforce them by all legal remedies, until he is divested of his title for the use of the public in the manner prescribed by the Act of Incorporation.” (emphasis supplied)). Relatedly, we held that the government did not have the power to take private property through a procedure that did not provide for compensation — in such a case, it was not exercising its power of eminent domain at all, and thus could be liable for damages. See Parham, 9 Ga. at 354-355; see also Markham v. Brown, 37 Ga. 277, 281-283 (1867) (county justices who took possession of plaintiff‘s land for smallpox hospital can be liable in trespass given that they acted under a statute that did not provide for compensation).3
Since the Just Compensation Provision first entered the Georgia Constitution in 1861, it has undergone frequent textual changes, but for its first century of existence had always provided that a government еntity generally must pay just compensation before taking private property. See
Beginning in 1960, Georgians approved more significant textual changes to the Just Compensation Provision that limited the circumstances in which payment before taking or damaging is constitutionally required, while retaining the default prepayment requirement. A 1960 constitutional amendment preserved the previous language — “Private property shall not be taken, or damaged, for public purposes, without just and adequate compensation being first paid” — but also included a new exception to the prepayment requirement:
[W]hen private property is taken or damagеd for public road and street purposes by the State and the counties and municipalities of the State, just and adequate compensation therefor need not be paid until the same has been finally fixed and determined as provided by law, but
such just and adequate compensation shall then be paid in preference to all other obligations except bonded indebtedness.
Ga. Laws 1960, p. 1225; see also Ga. Laws 1961, p. 755. This change was carried over into the 1976 Constitution. See
Notwithstanding these changes, it is fair to say that the default constitutional requirement that compensation must be paid prior to a taking remained in the Just Compensation Provision throughout. And as early as 1881, we held that the Just Compensation Provision waived governmental immunity for some claims for monetary relief. See City of Atlanta v. Green, 67 Ga. 386, 387-389 (1) (1881). In Green, we construed the 1877 version of the Just Compensation Provision, which required the payment of compensation not only before private property was “taken” for public purposes, but also before it was “damaged.”
We acknowledged this case law in our 1883 decision in Moore v. Atlanta, 70 Ga. 611 (1883), which addressed whether the Just Compensation Provision waived governmental immunity for a claim of injunctive relief. But Moore, which involved a claim for an injunction against a street grading project performed on public property with only indirect effects on private property that could be compensated by money damages, distinguished Chambers as involving an impending seizure of private property. See Moore, 70 Ga. at 615-616 (4). And instead of engaging with the text of the Just Compensation Provision to answer the question of whether governmental immunity precluded a claim for injunctive relief, the Moore opinion provided equitable reasons for distinguishing the claim for money damages at issue in Green: although it was fair tо pay an individual landowner for his damages, permitting an injunction
These post-Moore cases allowing injunctive relief largely did not grapple explicitly with the question of governmental immunity. But shortly before ratification of the 1974 constitutional amendment conferring constitutional status on sovereign immunity, we squarely rejected arguments that governmental immunity bars claims for injunctive relief in the inverse condemnation context, while attempting to make sense of apparent inconsistencies in our case law. In Baranan v. Fulton County, 232 Ga. 852, 856 (209 SE2d 188) (1974), we held that a trial court had erred in concluding that a county can never be enjoined from maintaining a continuing nuisance. Recognizing that “it may not be possible to reconcile all that has been said in the numerous cases dealing with injuries to private property by public bodies,” we attempted to draw a
distinction between two lines of cases. In one line of cases, including Moore, we held that “extensive public improvements will not be enjoined because consequential damages have not been paid to property owners[.]” Baranan, 232 Ga. at 855. In the other line of cases, this Court held that a court may enjoin “a public improvement [that] has the effect of creating a continuing nuisance on private proрerty[.]” Id. at 855.
In Baranan, the plaintiff brought a claim for injunctive relief against drainage-system changes that allegedly created a continuing nuisance by increasing the flow of surface water on private property. See id. at 853. Based on the categorization of prior case law, we rejected the defendant county‘s invocation of immunity, which was based on a statute that provided that “[a] county is not liable to suit for any cause of action unless made so by statute.” Id. at 856 (citing
In those cases examined by Baranan in which injunctive relief was disallowed, there had not been a taking of private property at all, nor even a trespass that damaged private property, and so injunction of government action was not available. See Moore, 70 Ga. at 615-616 (holding the grading of the city‘s streets and sidewalks, аlthough inconvenient to the adjacent landowner, was not a taking because “the city is grading its own sidewalks” and “it is upon its own soil“); Brown v. Atlanta Ry. & Power Co., 113 Ga. 462, 476 (4) (39 SE 71) (1901) (trial court‘s refusal to enjoin the running of streetcars in front of plaintiff‘s property was “in effect a finding that it would not be damaged“); Fleming, 130 Ga. at 390 (no injunction where grading of street allegedly left plaintiff‘s
By contrast, the inverse condemnation cases in which injunctive relief was available involved encroachments on private land such that they could amount to a trespass. See Butler, 74 Ga. at 574 (discharge of sewage on plaintiff‘s land); City of Atlanta v. Warnock, 91 Ga. 210, 214 (18 SE 135) (1892) (evidence that sewer manholes in street adjacent to plaintiff‘s property emitted large amount of poisonous gаses); City of Atlanta v. Williams, 218 Ga. 379, 379-380 (128 SE2d 41) (1962) (evidence that county‘s installation of catch basins and sewer drains near plaintiff‘s property caused filthy water to collect on property). In considering today the cases sorted by Baranan, we do not necessarily agree that each case was rightly decided or that Baranan‘s categorization of them was perfect.7 But we need not conclude either of those things to recognize the continuing viability of the broad distinction we identified in Baranan.
What is important is that, as of the time Baranan was decided, this Court had held that the Just Compensation Provision‘s language -- “[p]rivate property shall not be taken, or damaged, for public purposes, without just and adequate compensation being first paid” -- waived sovereign immunity for inverse condemnation claims for injunctive relief to stop a government encroachment on private land that amounted to a trespass, until the property is condemned. And that holding was largely consistent with the body of case law prеceding it, dating back to the previous century. See, e.g., Butler, 74 Ga. at 575-576 (2). It is of no matter that the earliest cases largely involved outright acquisition of private property, as opposed to a physical invasion that merely damaged the property, given that those early cases predated the 1877 change to the Just Compensation Provision that applied a prepayment requirement to both “taking” and “damaging.” See Brown, 167 Ga. at 424 (“Even then it would be a nice question as to whether such an appropriation should not more properly be termed a ‘damaging’ than a ‘taking.’ In either event compensation would have to be paid, and that is the material thing in such a matter.“).
Given the textual changes to the Just Compensation Provision that followed, particularly in 1960, 1978, and 1983, we must bear in mind that we cannot apply uncritically our decisions interpreting old versions of a constitutional prоvision to new language. See Stratacos v. State, 293 Ga. 401, 408 (2) (b) n.10 (748 SE2d 828) (2013) (“[I]t is always risky for courts to rely on a precedent interpreting a statute or other legal text without first examining whether the legal text on which the precedent was based has been revised and then considering the effect of any such change.“); cf. Elliott v. State, 305 Ga. 179, 184-187 (II) (B) (824 SE2d 265) (2019) (a constitutional provision that is readopted without material change into a new constitution and that has received a consistent and definitive construction is presumed to carry forward that consistent construction). But such decisions construing prior versions of a provision often provide important context, particularly if the pertinent language is similar, in understanding
For this reason, it is significant that in November 1974, just one month after Baranan was decided, the voters of Georgia enshrined the then-existing law of sovereign immunity into the state Constitution by way of an amendment. See Lathrop, 301 Ga. at 420 (II) (B). The 1974 amendment was then carried forward into the Constitution of 1976. See id. (citing
(c) We reject the State‘s attempts to undermine our prior precedent.
The State does not explicitly ask us to overrule Baranan.9 The State does point to the line of decisions that suggested that the Just Compensation Provision did not permit injunctions preventing the Stаte from constructing public improvements, at least where no private property was actually taken. See, e.g., Moore, 70 Ga. at 613-616 (4). But, as Baranan explained, those pre-Baranan cases that remain good law fall into the category in which no property was taken or even physically damaged, such that injunctive relief was not available.10 And the two post-Baranan cases relied on by the State clearly fall into the category of cases distinguished by Baranan itself as not involving a taking or physical damage. See Evans v. Just Open Government, 242 Ga. 834, 836-837, 839-840 (5) (251 SE2d 546) (1979) (reversing grant of injunction enjoining construction of
The State also argues that the language of the Just Compensation Provision is insufficiently specific as to the remedy that it provides to waive the State‘s sovereign immunity for a claim for injunctive relief. And the State contends that its “ability ... to take private property evaporates if landowners can enjoin the State from taking or damaging that property in the first place.” But the State is wrong; it is the right the Just Compensation Provision affords landowners that would be illusory if governments were wholly immune from injunctive relief. The Just Compensation Provision by its plain text -- at the time we construed it in Baranan, as well as today -- imposes on the State an obligation, albeit with exceptions that have increased over time, to pay just and adequate compensation before taking or damaging private property. If the State could claim sovereign immunity from a suit for injunctive relief against a continuing nuisance that damages private property, then the State‘s obligation to provide just compensation prior to doing the damage where the Constitution expressly requires as much would itself be hollow. And as explained above, we have previously made it clear through our decisions that a constitutional provision may waive sovereign immunity by necessary implication, not only by explicit language contained in the text of the Constitution. Therefore, the Just Compensation Provision waives sovereign immunity for a claim for injunctive relief where a requirement of prepayment applies and the compensation has not been paid.11
By the same token, where a government agency allegedly takes or damages private property without condemning any portion of, or interest in, the property at all, the Just Compensation Provision also effects a waiver of sovereign immunity for injunctive relief. Where the government wrongly insists that it has not taken or damaged anyone‘s property and thus owes no compensation, it is not exercising its eminent domain power as laid out in the Georgia Constitution and related statutory provisions at all. Rather, it is violating the Constitution‘s Just Compensation Provision. See Markham, 37 Ga. at 281-283; see also McFarland, 224 Ga. at 619 (1) (alleged continuing trespass and nuisance resulting from a county‘s divergence of surface water onto the plaintiff‘s property “would be a continuing nuisance authorizing a court of equity to restrain it and to require the defendants to cease and desist
This understanding of the Just Compensation Provision‘s interaction with the doctrine of sovereign immunity may also be consistent with a recent amendment to the Georgia Constitution not at issue here. That amendment provides:
Sovereign immunity is hereby waived for actions in the superior court seeking declaratory relief from acts of the state 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.
(d) Exceptions to the requirement of prior payment found in the Just Compensation Provision may limit the scope of its waiver of sovereign immunity, but not in a way relevant here.
As noted above, amendments to the Just Compensation Provision in recent decades have created new exceptions to the requirement that a private landowner receive just compensation before his land is taken or damaged for public use. Under the current Constitutiоn, these exceptions include appropriations “for public road or street purposes, or for public transportation purposes, or for any other public purposes as determined by the General Assembly.”
But we need not decide here to what extent these textual changes may limit the breadth of the waiver of immunity found in the Just Compensation Provision. The State did not argue below that its actions in this case constitute a taking “for public road or street purposes, оr for public transportation purposes, or for any other public purposes as determined by the General Assembly,” such that the prepayment requirement does not apply, so that question is not before us. Indeed, as discussed above, where a government entity denies that it is taking or damaging property at all, it is not purporting to exercise its eminent domain power and cannot claim that it is taking or damaging property for any particular purpose. Here, the State in its answer to Mixon‘s complaint denied that it “committed an inverse condemnation,” denied that the road construction it undertook caused the alleged storm runoff, and denied that it had taken Mixon‘s property without providing just and adequate compensation. The record does not contain any indication that the State has deviated from that position as the case has procеeded before the trial court and on appeal. Indeed, the State continued to maintain before the Court of Appeals that it had not caused the flooding by failing to maintain the roadway. Thus, at least in this procedural posture, the State cannot contend that Mixon‘s property has been “taken or damaged by the state ... for public road or street purposes, or for public transportation purposes, or for any other public purposes as determined by the General Assembly[.]”
(e) Sovereign immunity does not bar Mixon‘s claim for injunctive relief.
The Court of Appeals reasoned that because the Just Compensation Provision waives sovereign immunity for damages claims premised on a taking or damaging of private property, it necessarily also waives sovereign immunity for Mixon‘s claim for injunctive relief. As discussed above, this conclusion is overbroаd: some claims for injunctive relief premised on a taking or damaging of private property may indeed be barred by sovereign immunity. In particular, where no prepayment requirement applies, or the State has properly availed itself of the legal process for exercising its power of eminent domain, sovereign immunity may well bar injunctive relief.
But on the record before us, we cannot conclude that Mixon‘s claim for injunctive relief is so barred. Based on claims that GDOT‘S failure to maintain its storm water drainage systems have resulted in regular flooding on her property, Mixon alleges that GDOT has taken her property for public purposes without just and adequate compensation. There is no suggestion in the record that GDOT has afforded Mixon compensation for this alleged taking; indeed, her complaint seeks money damages. Nor is there any suggestion that GDOT has аvailed itself of legal process to exercise its eminent domain power over Mixon‘s property.
As did the Court of Appeals, we caution that we are not holding that Mixon actually is entitled to obtain injunctive relief. See Mixon, 355 Ga. App. at 467 (3). A waiver of sovereign immunity says nothing about whether a claim is viable on the merits. Although Mixon seeks a permanent injunction “in order to prevent future nuisance and continual trespass from being inflicted upon” her property, her complaint contains no allegation that her damages claim does not provide her an adequate remedy for such a tort. And counsel for Mixon acknowledged at oral argument that money could make his client whole, while arguing that she was not limited to that remedy. “[T]he extraordinary remedy of injunction does not lie in favor of one who has an adequate remedy at law.” Ledbetter v. Callaway, 211 Ga. 607, 610 (87 SE2d 317) (1955); see also
Judgment affirmed. All the Justices concur, except Boggs, P.J., not participating.