It's already the law in Georgia that the Georgia Constitution's Takings Clause waives whatever sovereign immunity the government may enjoy when it comes to monetary relief in a takings claim. See Ga. Dept. of Nat. Res. v. Center for a Sustainable Coast, 755 S.E.2d 184 (2014).
But it remained an open question whether the Georgia Constitution also allows property owners to seek injunctive relief for a taking (in this case, a claim of inverse condemnation). In Dep't of Transportation v. Mixon, No. S20G1410 (Oct. 5, 2021), the Georgia Supreme Court gave us an answer.
There, the DOT's road project allegedly caused flooding on Mixon's land. Mixon brought an inverse condemnation claim, seeking both just compensation and a permanent injunction to prevent future flooding and trespass. The trial court and the court of appeals rejected DOT's claim of immunity (based on the 2014 decision noted above). The Georgia Supreme Court granted DOT's request for discretionary review, because the 2014 case did not address whether injunctive relief may be sought. The Supreme Court concluded "the Just Compensation Provision waives sovereign immunity for some claims of injunctive relief." Slip op. at 6. What are those claims (some but not all)? Read on.
The court began by explaining that this isn't really a "waiver" of sovereign immunity situation, but more like what we'd call a "self-executing" provision. The Georgia Constitution itself requires compensation for takings, so in that sense there's no immunity to begin with. See slip op. at 9-10. OK, got it.
Second, the court noted that its precedents focused on the requirement of payment of compensation before the taking. See slip op. at 11 ("the notion that payment must be made (or at least offered) prior to a taking was part of that right"). And that, the court also noted, means that property owners "could obtain an injunction against government actors to stop a taking where compensation had not been provided." Slip op.at 12.
But that ability was subject to conditions: (1) the owner must have satisfied any prerequisites in the process to obtain compensation; and (2) the injunction only was good as long as the government had not satisfied its own obligations under that process. After running through the extensive (and often confusing) judicial history of Georgia law's treatment of injunctions in takings, damagings, and inverse cases, the court concluded:
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 preceding it, dating back to the previous century.
Slip op. at 24.
Because the Georgia Constitution continues to require providing compensation before taking or damaging private property, the court held that injunctions are available to stop a taking or damaging until such time as the government ponies up:
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.
Slip op. at 30-31. That will sure get their attention!
Having so concluded, the court held that some claims for injunctive relief in takings are not subject to injunctions (such as where there's no prepayment requirement, or the government has exercised eminent domain). But Mixon may seek an injunction because she asserted flooding caused by DOT's project, and "[t]here is no suggestion in the record that GDOT has afforded Mixon compensation for this alleged taking...[n]or is there any suggestion that GDOT has availed itself of legal process to exercise its eminent domain power over Mixon's property." Slip op. at 38.
So if property owners are entitled to just compensation, what good will also getting an injunction do? First, it will likely get the government's attention and force it to stop what might be an ongoing problem. Second, it might avoid situations like this where the government has been ordered to pay compensation for a taking, but simply chooses not to.
Sidebar: here's something we didn't know (yes, we know that's a long list). Even before the Georgia Constitution included a takings or just compensation provision, the Georgia Supreme Court applied the takings principle as a matter of common law. See slip op. at 10 (citing Parham v. Justices of Inferior Court of Decatur County, 9 Ga. 341, 349 (1851) (“It is not, therefore, necessary 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.”)).
Dep't of Transportation v. Mixon, No. S20G1410 (Ga. Oct. 5, 2021)
