HB 531: Appeal and error; certain appellate procedures regarding the denial of sovereign and any other immunity available to the state or a city or county in this state; provide

The Senate Committee on Judiciary offered the following

substitute to HB 531:

A BILL TO BE ENTITLED

AN ACT

To amend Chapter 33 of Title 36 of the Official Code of Georgia Annotated, relating to liability of municipal corporations for acts or omissions, so as to provide that when a municipal corporation is participating in a joint undertaking and another local government participating in such joint undertaking acquires liability insurance the sovereign immunity of the other participating local government is not waived; to extend the period of the notice for a cause of action against a municipality; to provide that tort and nuisance liability of any consolidated government shall follow the law and rules of tort liability applicable to counties; to provide limitations on the amounts and types of damages and interest recoverable; to provide a short title; to revise provisions relating to waiver of immunity by purchase of liability insurance; to amend Chapter 80 of Title 36 of the Official Code of Georgia Annotated, relating to general provisions applicable to counties, municipal corporations, and other governmental entities, so as to waive sovereign and governmental immunities for local governments and their officials and employees for a violation of the prohibition on immigration sanctuary policies; to amend Code Section 42-1-11.5 of the Official Code of Georgia Annotated, relating to compliance with immigration detainer notices, so as to provide for immunity waivers; to provide for related matters; to provide for an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

PART I

SECTION 1-1.

This part shall be known and may be cited as the "Municipal Sovereign Immunity Act."

SECTION 1-2.

Chapter 33 of Title 36 of the Official Code of Georgia Annotated, relating to liability of municipal corporations for acts or omissions, is amended by revising subsection (b) of Code Section 36-33-5, relating to written demand prerequisite to action for injury to person or property, time for presenting claim and for consideration by governing authority, suspension of limitations, statement of specific amount of monetary damages sought, and service of claim on city officials, as follows:

"(b) Within six 12 months of the happening of the event upon which a claim against a municipal corporation is predicated, the person, firm, or corporation having the claim shall present the claim in writing to the governing authority of the municipal corporation for adjustment, stating the time, place, and extent of the injury, as nearly as practicable, and the negligence which caused the injury. No action shall be entertained by the courts against the municipal corporation until the cause of action therein has first been presented to the governing authority for adjustment."

SECTION 1-3.

Said chapter is further amended by adding a new Code section to read as follows:

"36-33-7.

(a) It is the specific intent of the General Assembly that municipal tort claims shall be subject to the limitations provided in this Code section. In any civil action or claim for damages brought under the provisions of this chapter, no claimant shall recover a sum exceeding $3 million from any single municipality because of loss arising from a single occurrence; and any single municipality's aggregate liability per occurrence shall not exceed $5 million. The existence of these caps on liability shall not be disclosed or suggested to the jury during the trial of any action brought under this chapter.

(b) No award for damages under this chapter shall include punitive or exemplary damages.

(c) Trial of tort claims against the municipality under this chapter shall be conducted by a judge with a jury; provided, however, that the parties may agree that the same be tried by a judge without a jury.

(d) This Code section shall not be construed as a new waiver of immunity as required by Article IX, Section II, Paragraph IX of the Constitution of the State of Georgia. Any such new waiver must be pled and proven by the claimant as provided by law."

SECTION 1-3A.

Said chapter is further amended by revising Code Section 36-33-1, relating to immunity from liability for damages, waiver of immunity by purchase of liability insurance, and liability for acts or omissions generally, as follows:

"36-33-1.

(a) Pursuant to Article IX, Section II, Paragraph IX of the Constitution of the State of Georgia, the General Assembly, except as provided in this Code section and in Chapter 92 of this title, declares it is the public policy of the State of Georgia that there is no waiver of the sovereign immunity of municipal corporations of the state and such municipal corporations shall be immune from liability for damages. A municipal corporation shall not waive its immunity by the purchase of liability insurance, except as provided in Code Section 33-24-51 or 36-92-2, or unless the policy of insurance issued covers an occurrence for which the defense of sovereign immunity is available, and then only to the extent of the limits of such insurance policy. This subsection shall not be construed to affect any litigation pending on July 1, 1986. In addition to the waivers of a municipal corporation's immunity as provided by Code Sections 33-24-51 and 36-92-2, a municipal corporation shall waive its immunity by the purchase of liability insurance if the policy of insurance covers an occurrence and then only to the extent of the limits of the insurance policy. It shall be against public policy, void, and unenforceable for a contract for liability insurance to attempt to avoid the effect of this waiver of immunity, or any other waiver of a municipal corporation's immunity. Among other things, the duty to pay damages on behalf of a municipality must be determined under the policy of insurance without consideration of whether immunity would otherwise exist for those damages.

(b) Municipal corporations shall not be liable for failure to perform or for errors in performing their legislative or judicial powers. For neglect to perform or improper or unskillful performance of their ministerial duties, they shall be liable."

PART II

SECTION 2-1.

Chapter 80 of Title 36 of the Official Code of Georgia Annotated, relating to general provisions applicable to counties, municipal corporations, and other governmental entities, is amended by adding a new subsection to Code Section 36-80-23, relating to prohibition on immigration sanctuary policies by local governmental entities, and certification of compliance, to read as follows:

"(f) In the event that a local governing body acts in violation of this Code section, the sovereign immunity of such local governing body and the governmental immunity of all local officials and employees of such local governing body is waived in all matters arising from or resulting in the violation of this Code section."

SECTION 2-2.

Code Section 42-1-11.5 of the Official Code of Georgia Annotated, relating to compliance with immigration detainer notices, is amended by revising said Code section as follows:

"42-1-11.5.

(a) As used in this Code section, the term:

(1) 'Custodial authority' means the commissioner if a person is in physical custody at a penal institution, the sheriff if a person is in physical custody at a county jail, the warden if a person is in physical custody at a county correctional institution, and the chief of police if a person is in physical custody at a municipal detention facility.

(2) 'Immigration detainer notice' means documentation issued by the federal government requesting that a custodial authority maintain temporary custody of an illegal alien as such term is defined in Code Section 42-4-14, including a United States Department of Homeland Security Form I-247 document or a similar successor form.

(b) Any custodial authority who has custody of a person who is subject to an immigration detainer notice shall:

(1) Comply with, honor, and fulfill any request made in the immigration detainer notice; and

(2) Inform the person identified in the immigration detainer notice that the person is being held pursuant to such notice.

(c) In the event that a custodial authority acts in violation of this Code section, the sovereign and other governmental immunities of such custodial authority are waived in all matters arising from or resulting in the violation of this Code section."

PART III

SECTION 3-1.

This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 3-2.

All laws and parts of laws in conflict with this Act are repealed.