In what can only be described as a jaw-dropping, scorching opinion, issued on December 20, 2023, the Georgia Supreme Court soundly rebuked the Georgia Attorney General’s Office for lack of integrity in negotiations with the Federal Defender Program regarding when the AG’s office would resume executions of death-sentenced inmates.
In State v. Fed. Def. Program, Inc., S22A1099, 2022 WL 17813458 (Ga. Dec. 20, 2022) made the following agreement, in writing via email, with the Federal Defender Program:
“Our office will not pursue an execution warrant from the District Attorney in the below defined cases before: 1) the final COVID19 judicial emergency order entered by the Chief Justice of the Supreme Court of Georgia expires; 2) the Georgia Department of Corrections lifts its suspension of legal visitation, and normal visitation resumes; and [3)] a vaccination against COVID19 is readily available to all members of the public.
Burton’s e-mail further stated that the “agreement applie[d] only to death-sentenced prisoners whose petition for rehearing or rehearing en banc was denied by the Eleventh Circuit while the State of Georgia remained under judicial emergency order” and that, with one named exception,4 the Attorney General’s office agreed “not [to] pursue an execution warrant of any prisoner … before a total of at least six months after the time the above-three conditions [we]re met.” Burton’s e-mail concluded by stating that the agreement was “made with the understanding that the District Attorney maintain[ed] the sole authority to obtain an execution warrant.””
Despite this agreement, the AG’s office scheduled the execution of a death-sentenced inmate for the week of May 17-May 24, 2022 prior to the three agreed-upon conditions having been met first. The Federal Defender Program immediately filed a Motion for an Interlocutory Injunction of the execution and a lawsuit against the AG’s office for breach of contract. Rather than dispute there was an actual, valid agreement entered into by the attorneys for both parties, the AG’s office argued it was immune to suit for breach of contract based on sovereign immunity. At the hearing on May 16, 2022, the trial court orally denied the State’s motion to dismiss based on sovereign immunity, after concluding that the Agreement constituted a valid written contract, and orally granted the Appellees’ motion for a temporary restraining order and an interlocutory injunction. The AG’s office then appealed to the Georgia Supreme Court, making the same sovereign immunity argument they had made at the trial court level.
The Georgia Supreme Court flatly rejected all of the AG’s office’s arguments and held:
“we conclude as a matter of law that the Appellees’ action ex contractu was not barred by sovereign immunity and reject the State’s arguments that (1) as a matter of general principles of contract, e-mails cannot create a written contract sufficient to waive sovereign immunity; (2) the Georgia
Uniform Electronic Transactions Act (“GUETA”), see OCGA § 10-12-1 et seq.
, does not apply to the Agreement; (3) the Agreement did not include a written signature; (4) the Agreement failed to specify parties who are able to contract because Burton did not have the authority to contract on behalf of the Attorney General’s office and the Federal Defender
was not a party to the Agreement; (5) the Agreement is not supported by adequate consideration; and (6) the terms of the Agreement are too vague to be enforceable.”
First, it is striking the the AG’s office for the State of Georgia argued the clear agreement reached with counsel for the Federal Defender Program was not really an agreement because it was in an email. This can only be seen for what it was: a bad faith attempt to weasel out of a bona fide agreement made between counsel. It just flabbergasts me that any lawyer would attempt to argue this, but especially the AG’s office, the State’s Chief Law Enforcer. On top of this ridiculous argument, the AG’s office then argued they can’t be sued for breach of contract due to sovereign immunity. This means they weren’t arguing with the merits of the claim of breach of contract, just that you can’t sue us for breaching the contract. Truly mind-boggling. And disappointing. Lawyers as officers of the court owe a duty of candor to the court and have a duty to avoid conduct that undermines the integrity of the adjudicative process. RULE 3.3 CANDOR TOWARD THE TRIBUNAL, Georgia Rules of Professional Conduct. Further, lawyers, as officers of the Court, owe a duty of candor, mutual respect and professionalism to their adversaries. The Georgia Chief Justice’s Committee on Professionalism has in its Lawyers Creed a duty of “fairness, integrity and civility” to opposing counsel. The trial court that initially ruled against the AG’s office specifically found that “this public interest is implicated even more when the State is a party to the contract, because if [the State] cannot be trusted to honor [its] agreements in these circumstances, it will substantially undermine the public’s confidence in its government….” State v. Fed. Def. Program, Inc., S22A1099, 2022 WL 17813458, at *19 (Ga. Dec. 20, 2022)
“Cannot be trusted to honor its agreements.” This is what the trial court believed the AG’s office had done. You may be thinking: How could you ever trust them again on anything else?
But what is truly remarkable about this scathing Georgia Supreme Court opinion is not that the Court flatly rejected every single argument the AG’s office made in an attempt to get out of what it had agreed to, it is the concurring opinion of Justice Charles Bethel. I would do a disservice to Justice Bethel’s concurrence if I simply parcelled out little quotations for you to read, so I will post it here in its entirety, because it really captures the essence of what we believe in a just society, as member of the honorable profession of law, as protectors of the Rule of Law, and as, supposedly, honest and truthful advocates. It makes it clear that when an attorney agrees to do something on behalf of his or her client, the attorney will be held to honor that agreement, and no crossing of the fingers behind one’s back, and no “wink-wink” as you make a promise, will undo the agreement or “get you out of” something you had freely agreed to do before. Thank you Justice Bethel for this concise expose on the professionalism of the legal profession and the duty of candor we owe to each other, the court and the public. Here is Justice Bethel’s concurrence in its entirety.
Bethel, J., concurring.
Wisdom, Justice, and Moderation.
Those words are engraved upon the Great Seal of the State of Georgia
and are recited when we pledge allegiance to the flag of the State of Georgia
They symbolize the three pillars upon which sound government and our State Constitution rest.
With those principles in mind, I highlight a few facts apparent from the record in this case which are, of course, included in the broader recitation of the record found in the opinion of the Court. An Assistant Attorney General and her supervisor, a Deputy Attorney General, both clearly and unambiguously agreed to a course of conduct related to the function of the Department of Law over which they had supervisory authority. The State now wishes not to follow that agreed-upon course of conduct. This litigation follows.
The Office of the Attorney General should have mooted this case before it was filed by simply fulfilling the promises its attorneys made – even if the State later had reservations about the binding effect of the words of its Deputy Attorney General and Assistant Attorney General. Instead, the State elected to attempt to avoid honoring the agreement they made.
“Inside every cynical person, there is a disappointed idealist,” a comedian once said. But his words are, of course, no laughing matter. Cynicism is an infectious and contagious thing that eats at the fibers of the fabric which hold together human society. Government is often an accidental vector of our society’s cynicism. It really should avoid being an intentional one.
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.
I am authorized to state that Chief Justice Boggs
, Justice Ellington
, Justice McMillian
, Justice LaGrua
, and Justice Colvin
join in this concurrence.
Robin Frazer Clark is a trial lawyer who pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others. Ms. Clark is the 50th President of the State Bar of Georgia, a Past President of Georgia Trial Lawyers Association, a Past President of the Lawyers Club of Atlanta and has practiced law in Georgia for 34 years. She is a member of the International Society of Barristers and of the American Board of Trial Advocates. Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer. Ms. Clark is the co-host of the podcast “See You In Court,” sponsored by the Georgia Civil Justice Foundation. Ms. Clark has tried over 75 jury trials and argued in Georgia Appellate Courts over 45 times.
Robin Frazer Clark ~ Dedicated to the Constitution’s Promise of Justice for All.