dissenting.
Because I find that the majority opinion ignores the legislature’s stated intent in enacting legislation to create the Georgia Lottery Corporation (GLC), and is directly contrary to longstanding precedent of this Court, I respectfully dissent to Division 1.
The majority posits that Miller v. Ga. Ports Auth., 266 Ga. 586 (470 SE2d 426) (1996) and Youngblood v. Gwinnett Rockdale Newton Community Svc. Bd., 273 Ga. 715 (545 SE2d 875) (2001) control the outcome of this case and demand a finding that the GLC, as an instrumentality of the state, is entitled to the defense of sovereign immunity. In both Miller and Youngblood, it was determined that the Georgia Ports Authority and a county community service board, respectively, were created as agencies of the state and functioned in that capacity, and therefore, were entitled to assert a defense of sovereign immunity under Art. I, Sec. II, Par. IX (e) of the Georgia Constitution (sovereign immunity granted to the “state and its departments and agencies”). In making that determination, we examined the law creating those entities and the public purpose for which they were created. When we apply the same analysis to GLC, the opposite holds true. GLC was designated by our General Assembly as an instrumentality of the State, “and not a state agency,” OCGA § 50-27-4, which is to function as an “entrepreneurial enterprise,” OCGA § 50-27-2 (2), and is not to be dependent on the state treasury, OCGA § 50-27-32 (c).
Our decision in Thomas v. Hosp. Auth. of Clarke County, 264 Ga. 40 (440 SE2d 195) (1994), is more closely analogous. There we looked at the functions that the hospital authority carried out to determine whether, as an instrumentality of the state, it was entitled to sovereign immunity under Art. I, Sec. II, Par. IX (e) of our Constitution. We concluded that those functions “are simply not those functions which the doctrine of sovereign immunity was designed to protect,” Thomas, supra at 42, nor would application of the doctrine *94be necessary to protect the public purse. The same applies here.
Decided November 21, 2011. Merolla & Gold, Angelo T. Merolla, for appellants. Samuel S. Olens, Attorney General, R. O. Lerer, Deputy Attorney General, William W. Banks, Jr., Shereen M. Walls, Senior Assistant Attorneys General, Troutman Sanders, Bradley J. Harrison, for appellee.The majority places great emphasis on the language of the 1991 amendment to Art. I, Sec. II, Par. IX of the Georgia Constitution, suggesting that the subsections of that provision “be read together to interpret meaning.” This, however, does not bolster its position that GLC is entitled to sovereign immunity. As relevant to our discussion, subsection (a) authorized legislation to provide for waiver of sovereign immunity by enactment of a Georgia Tort Claims Act (GTCA), and subsection (e) grants sovereign immunity to the state and its departments and agencies. In 1992, pursuant to the authority granted in subsection (a), the legislature enacted the GTCA, OCGA § 50-21-20 et seq., which provides a waiver of sovereign immunity for the torts of state officers and employees, including “instrumentalities” of the state, while acting within the scope of their official duties. In the same year, the legislature created the GLC under the authority of the Georgia Lottery for Education Act, OCGA § 50-27-1 et seq., specifying that the GLC is “not a state agency.” OCGA § 50-27-4. Thus, with full knowledge of the 1991 amendment, the legislature intentionally included instrumentalities of the state under the GTCA, while it exempted the GLC as a state agency for constitutional protection under subsection (e). The question posed to the parties on certiorari was limited to “whether GLC was entitled to assert sovereign immunity as a bar to a suit raising claims outside the GTCA.” (Emphasis supplied.) Thus, the provisions of the GTCA do not control our decision, and the majority incorrectly bolsters its position by relying on the more expansive language of that Act.
For the foregoing reasons, I would answer the first question posed on certiorari in the affirmative. Thus, I would hold that the Court of Appeals erred in finding that GLC was entitled to assert sovereign immunity as a bar to a suit raising claims arising outside the GTCA.
I am authorized to state that Presiding Justice Carley and Justice Benham join this dissent.