Miller v. Georgia Ports Authority

Carley, Justice,

dissenting.

The majority disregards our recent decision in Thomas v. Hosp. Auth. of Clarke County, 264 Ga. 40 (440 SE2d 195) (1994), misapprehends the nature of the Georgia Ports Authority (Authority), and incorrectly relies on the Georgia Tort Claims Act (GTCA). Therefore, I must respectfully dissent.

In determining the scope of the defense of sovereign immunity, this Court has narrowly defined “what constitutes the state or a political division thereof, distinguishing the state and its political subdivisions from instrumentalities created by the state to carry out various functions.” Thomas v. Hosp. Auth. of Clarke County, supra at 41 (1). In Thomas, this Court reaffirmed and relied on the principle that a state authority is neither the state nor a part of the state, but is a mere creature of the state. Thomas, supra at 42 (1). Under this narrow definition, the Authority is not properly afforded the defense of *590sovereign immunity since the Authority is not the state or a department of the state or an agency of the state, but an entity created by the state. See Scarlett v. Ga. Ports Auth., 223 Ga. 417, 418 (1) (156 SE2d 77) (1967); Intl. Longshoremen’s Assn. v. Ga. Ports Auth., 217 Ga. 712, 716 (1) (a) (124 SE2d 733) (1962); State Ports Auth. v. Arnall, 201 Ga. 713, 722 (1) (41 SE2d 246) (1947).

Decided April 16, 1996. Lester B. Johnson, Adams & Ellis, George L. Lewis, for appellants. Michael J. Bowers, Attorney General, Daniel M. Formby, Deputy Attorney General, John B. Ballard, Ray 0. Lerer, Senior Assistant Attorneys General, George S. Zier, Assistant Attorney General, Ranitz, Mahoney, Coolidge & Mahoney, Thomas J. Mahoney, Jr., *591Thomas J. Mahoney III, for appellee.

*590Because the Authority is not an agency or department of the state, “the nature of its function is irrelevant. . . .” Thomas, supra at 42 (1). As a mere instrumentality of the state, the Authority is not entitled to the protection of sovereign immunity. See Thomas, supra at 42 (1). Indeed, the Authority was established as a separate, self-sufficient entity, and the General Assembly is not required to appropriate any funds either to satisfy debts of the Authority or to pay any of the Authority’s costs of operation. State Ports Auth. v. Arnall, supra at 722 (1), 728 (2). Accordingly, any judgment against the Authority is not an obligation of the state, and extension of sovereign immunity to the Authority is not necessary to protect “the public purse.” See Thomas, supra at 43-44 (2). Similarly, extension of sovereign immunity to the Authority is not necessary to allow the state “to go about the business of governing without the harassment of lawsuits which would unnecessarily impede the process of governing.” Thomas, supra at 42 (2).

Reliance on the express inclusion of “authorities” in the GTCA, OCGA § 50-21-22 (5), is misplaced. The GTCA serves simply as a statutory waiver of the constitutional defense of sovereign immunity and does not purport to delineate those entities to which that defense is available. OCGA § 50-21-23. Thus, the GTCA affects only those entities to which sovereign immunity would otherwise apply and does not, therefore, furnish a guide for interpreting Art. I, Sec. II, Par. IX (e) of the 1983 Georgia Constitution.

It follows that, in my opinion, the judgment of the Court of Appeals should be reversed.

I am authorized to state that Justice Sears joins in this dissent.