“Pinky Swear” Binds State

The Georgia Supreme Court has held that the State is contractually obligated to honor a commitment to waive sovereign immunity

After an order was issued setting the execution of Virgil Delano Presnell, Jr., the Federal Defender Program, Inc., (“Federal Defender”) filed a breach of contract action against the State of Georgia and Christopher M. Carr in his official capacity as Attorney General (collectively, the “State”) alleging that the State breached a contract governing the resumption of the execution of death sentences in Georgia after the COVID-19 pandemic. The State contends that the trial court erred in denying its motion to dismiss based on sovereign immunity and in granting the Appellees’ emergency motion for a temporary restraining order and an interlocutory injunction. As explained below, we conclude that an e-mail exchange between a deputy attorney general and certain capital defense attorneys, including an attorney employed by the Federal Defender, constituted a written contract sufficient to waive sovereign immunity in this matter, and we in turn conclude that the trial court did not abuse its discretion in weighing the equities in granting the Appellees’ motion for injunctive relief. Accordingly, we affirm.

From the thoughtful and impassioned concurrence of Justice Bethel

Though it may prove inconvenient, uncomfortable, or undesirable to the State, when both a Deputy and an Assistant Attorney General are on record agreeing that the State will do or not do something, absent a showing that those lawyers were engaged in an illegal or unethical endeavor or that honoring the agreement will incur an unauthorized cost to the State, everyone should be able to count on the State to honor its word. Not because it entered a contract that waived sovereign immunity. Not because the party asking the State to do as it said it would was sufficiently copied on an electronic communication message or was a third-party beneficiary. Not because the author of a message followed the correct electronic “pinky swear” that is necessary to transform a statement into a binding commitment. Rather, the State should keep its promises because The People of Georgia, who are the very source of the State’s sovereignty, are owed a government that honors its commitments.

In a society governed by the rule of law, courts must entertain lawfully filed cases and vindicate rights of parties, as defined by the law. And if the law allowed the State to avoid fulfilling the promises it made here, this Court would be bound to allow that. For the reasons explained in the opinion of the Court, however, the law thankfully does not allow that avoidance here. It’s a shame anyone thought it appropriate to ask.

The oral argument is linked here.

Murderpedia reports that the death penalty at issue here was originally  imposed in 1976. (Mike Frisch)