LOVELL v. RAFFENSPERGER

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
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official text of the opinion.

In the Supreme Court of Georgia

Decided: January 17, 2024

S23A0887. LOVELL v. RAFFENSPERGER et al.
S23A1151. TULLOS et al. v. RAFFENSPERGER et al.

LAGRUA, Justice.

Appellant Kristen Lovell filed a complaint in the Superior

Court of Columbia County against Brad Raffensperger, in his official

capacity as the Secretary of State of Georgia (the “Secretary”), the

Columbia County Board of Elections, Ann Cushman, Wanda Duffie,

Nancy Gay, Jarthurlynn Hosley, Jamese Walker, and Larry

Wiggins. Appellants Lori Tullos and Virginia McFaddin filed a

complaint in the Superior Court of Morgan County against the

Secretary, the Morgan County Board of Elections and Registration,

Jennifer Doran, Dr. James Woodard, Barry Broadmax, Tim Carter,

Mary Kay Clyburn, and Kirby Hayes. In their respective complaints,

Appellants sought declaratory and injunctive relief. The superior
courts dismissed the actions, concluding in part that they were

barred by sovereign immunity because Appellants failed to name the

proper defendants as required by Article I, Section II, Paragraph V

of the Georgia Constitution (“Paragraph V”). We have consolidated

these appeals for the purpose of issuing an opinion. Because the

complaints were not brought exclusively against the State and in

the name of the State of Georgia or exclusively against and in the

name of the relevant local governments, we affirm the trial courts’

dismissal of these actions.

1. Procedural Background

(a) Case No. S23A0887

On September 30, 2022, in the Superior Court of Columbia

County, Lovell filed pro se a verified complaint for declaratory

judgment and injunctive relief against the Secretary and the

Columbia County Board of Elections (the “Columbia County Board”)

“as listed” in the complaint’s caption, which lists six people who are

alleged to be members of the Columbia County Board (collectively

the “Columbia County Defendants”). While the complaint expressly

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identified the Secretary as having been sued in his official capacity,

it did not expressly identify the capacities in which Cushman,

Duffie, Gay, Hosley, Walker, and Wiggins have been sued, i.e.,

whether they have been sued in their official or individual

capacities.

Following a hearing, the trial court granted the motions to

dismiss filed by the Columbia County Defendants, concluding in

part that Lovell failed to comply with Paragraph V. Lovell timely

appealed to this Court.1

(b) Case No. S23A1151

On October 11, 2022, in the Superior Court of Morgan County,

Tullos and McFaddin filed pro se their verified complaint for

declaratory judgment and injunctive relief against the Secretary

1 Lovell did not cause the transcript to be prepared and filed. See OCGA

§ 5-6-42 (“Where there is a transcript of evidence and proceedings to be
included in the record on appeal, the appellant shall cause the transcript to be
prepared and filed as provided by Code Section 5-6-41.”). Lovell, as the
appellant, bears the burden of showing error below. In the dismissal order, the
trial court found that Lovell “allege[d] the waiver of sovereign immunity is
housed in [Paragraph V (b) (1)].” «Id. 2» In accordance with the presumption
of the regularity of court proceedings, we must assume in the absence of the
transcript that there was sufficient competent evidence to support this finding
of the trial court. See Reed v. Reed, 295 Ga. 574, 578 (2) (761 SE2d 326) (2014).

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and the Morgan County Board of Elections and Registration (the

“Morgan County Board”), “as listed” in the complaint’s caption,

which lists six people who are alleged to be officers and/or members

of the Morgan County Board (collectively the “Morgan County

Defendants”). While the complaint expressly identified the

Secretary as having been sued in his official capacity, it did not

expressly identify the capacities in which Doran, Woodard,

Broadmax, Carter, Clyburn, and Hayes have been sued, i.e.,

whether they have been sued in their official or individual

capacities.

After the Morgan County Defendants filed their motions to

dismiss, Tullos and McFaddin filed responses, asserting that

Paragraph V (b) (1) waives sovereign immunity for actions seeking

declaratory relief from acts of the State. «R1 395, 440» The trial

court granted the motions to dismiss, concluding in part that Tullos

and McFaddin failed to comply with Paragraph V. «Order 3-4»

Tullos and McFaddin timely appealed to this Court.

2. Analysis

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 Appellants contend that the superior courts erred by

concluding that Paragraph V barred their claims. We disagree.

(a) “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.” State v. SASS Grp., LLC, 315 Ga. 893, 904 (II) (d)

(885 SE2d 761) (2023) (quoting Par. V (b) (1)). See also Kuhlman v.

State, 317 Ga. 232, 235 (2) (892 SE2d 753) (2023). When plaintiffs

“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 action

filed pursuant to [Paragraph V].” SASS Grp., 315 Ga. at 897 (II)

(citation and punctuation omitted).

Here, because Appellants relied, at least partially, on

Paragraph V’s waiver of sovereign immunity in pursuing their

actions, Appellants filed their actions pursuant to Paragraph V. See

SASS Grp., 315 Ga. at 897 (II) (a).

But in order to take advantage of Paragraph V’s limited waiver

of sovereign immunity, a plaintiff must comply with the provisions

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of Paragraph V (b) (2), meaning that the action

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.

SASS Grp., 315 Ga. at 897 (II) (punctuation omitted). In SASS

Group, we concluded that a plaintiff availing himself of the limited

waiver provided by Paragraph V “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.” 2 Id. at 903 (II) (c).

(b) Today, we answer the question of whether Paragraph V

forecloses the option of naming as a defendant a state actor in his or

2 We note that it is difficult to discern from the complaints whether
Appellants sued the Columbia County Board and the Morgan County Board as
separate state entities, its members in their individual capacities, or both, see
City of Atlanta v. Harbor Grove Apartments, LLC, 308 Ga. App. 57, 58 (1) (706
SE2d 722) (2011) (“[I]n general, plaintiffs have a duty to make plain who they
are suing and to do so well before trial.” (citation and punctuation omitted)),
but we need not untangle these knots today because, as explained below,
Appellants’ failure to name the State of Georgia (or the relevant local
government) is fatal to their actions regardless of the capacities in which the
above defendants are sued.

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her official capacity, as opposed to naming the State of Georgia (or

naming as a defendant a local government actor in his or her official

capacity, as opposed to naming the local government itself). In

analyzing this question, we begin with the text of Paragraph V (b)

(2), which provides:

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.

(Emphasis supplied). The first two sentences of Paragraph V (b) (2)

address the form of how such actions shall be brought pursuant to

this Paragraph, i.e., “exclusively against” the state or local

government and “in the name of” the State of Georgia or local

government, and the final sentence does not; it sets forth the

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consequence for failing to comply with the previous two sentences,

i.e., the action shall be dismissed.

In determining the meaning of the phrase “in the name of,”

[w]e generally apply the ordinary signification to words in
construing a constitutional provision. This means we
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,
as an ordinary speaker of the English language would.

Camden County v. Sweatt, 315 Ga. 498, 509 (2) (b) (883 SE2d 827)

(2023) (citation and punctuation omitted). “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.” SASS Grp., 315 Ga. at 897-898

(II) (a) (citation and punctuation omitted). Because Paragraph V (b)

(2) was adopted in November of 2020, we consider “the ordinary

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

Georgia.” SASS Grp., 315 Ga. at 898 (II) (a).

The doctrine of sovereign immunity has been “understood to

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apply not only when the State was sued eo nomine,[3] but also in

suits against its departments, agencies, and officers in their official

capacities.” Lathrop v. Deal, 301 Ga. 408, 413 (II) (A) (801 SE2d 867)

(2017). See also Cameron v. Lang, 274 Ga. 122, 126 (3) (549 SE2d

341) (2001) (“Suits against public employees in their official

capacities are in reality suits against the state.” (citation and

punctuation omitted)). See also McBrayer v. Scarbrough, 317 Ga.

387, 392 (2) (a) (893 SE2d 660) (2023) (“[S]tyling a claim against a

county officer in his official capacity is simply a way of pleading a

claim against the county itself.” (citation and punctuation omitted)).

But Paragraph V (b) (2) provides not just that the action must be

brought “against” the State or local government, but that it must be

brought “in the name of” the State of Georgia or local government.

There are several statutes which use the phrase, “in the name of,”

to refer to the names of parties in a civil action. See, e.g., OCGA § 9-

3 “Latin for ‘[b]y or in that name.’ Black’s Law Dictionary at 652 (10th

ed. 2014).” Lathrop v. Deal, 301 Ga. 408, 413 (II) (A) n.11 (801 SE2d 867)
(2017).

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2-21 (a)4 (“An action for a tort shall, in general, be brought in the

name of the person whose legal right has been affected.”); OCGA §

9-11-17 (a)5 (“Every action shall be prosecuted in the name of the

real party in interest.”); OCGA § 9-11-25 (d) (1)6 (“When a public

officer is a party to an action in his official capacity and during its

pendency dies, resigns, or otherwise ceases to hold office, the action

does not abate, and his successor is automatically substituted as a

party. Proceedings following the substitution shall be in the name of

the substituted party. . .”); OCGA § 9-16-3 (a)7 (“A civil forfeiture

proceeding shall be filed by a state attorney in the name of the State

of Georgia in any superior court of this state. . .”). Because this

statutory context existed at the time of Paragraph V’s adoption, it is

an indicator that the phrase “in the name of” in Paragraph V has a

similar meaning. See Ga. Motor Trucking Assn. v. Ga. Dept. of

4 OCGA § 9-2-21 was last amended in 1999. See Ga. L. 1999, p. 296, § 24.
5 OCGA § 9-11-17 was amended in 2020. See Ga. L. 2020, Act 508, § 2-7,

eff. Jan. 1, 2021.
6 OCGA § 9-11-25 was enacted in 1966. See Ga. L. 1966, p. 609, § 25.
7 OCGA § 9-16-3 was enacted in 2015. See Ga. L. 2015, Act 98, § 1-1, eff.

July 1, 2015.

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Revenue, 301 Ga. 354, 364-367 (2) (B) (801 SE2d 9) (2017)

(determining original public meaning of constitutional phrase in the

light of statutory context at the time of constitutional adoption). The

phrase “in the name of the State of Georgia” in Paragraph V (b) (2)

means what it says: actions filed pursuant to Paragraph V must

name as a defendant only the State of Georgia (or the relevant local

government) or the action shall be dismissed.

Here, Appellants named as defendants the Secretary, not the

State of Georgia, and their local boards of election and their board

members, not the relevant counties. Because these actions were not

brought exclusively against the State and in the name of the State

of Georgia or exclusively against the counties and in the name of

such counties, the trial courts were correct to conclude that

Appellants failed to comply with Paragraph V (b) (2) and their

actions were subject to dismissal. Accordingly, we affirm the

superior courts’ dismissal of these actions.

Judgments affirmed. All the Justices concur.

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