Pass v. Athens Hous. Auth., A23A0344, 2023 WL 4194714 (Ga. Ct. App. June 27, 2023)
Viewing the instant appeal through the multifaceted lens created by our courts, we turn first to the legislation creating the entity and the public purposes for which the entity was created. Kyle, 290 Ga. at 90-91 (1), 718 S.E.2d 801; Campbell, 355 Ga. App. at 642 (2), 845 S.E.2d 384. In 1937, the General Assembly passed the Housing Authorities Law, OCGA § 8-3-1 et seq. The General Assembly provided that a housing authority “shall constitute a public body corporate and politic ….” OCGA § 8-3-4.
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We turn now to a more detailed examination of the housing authority’s “purpose, function, and management” and whether it is “indelibly intertwined” with the State. Kyle, 290 Ga. at 91 (1), 718 S.E.2d 801. The Housing Authorities Law, which is essentially enabling legislation, provides that housing authorities may not transact business and have no legal power absent the invocation of local authority. As OCGA § 8-3-4 provides, housing authorities cannot exercise their power “until or unless the governing body of the city or the county … shall declare … [a] need for an authority to function in such city or county.” The “governing body” of a housing authority is, in the case of a municipality or a county, each respective entity’s commission/commissioners or associated legislative body. OCGA § 8-3-3 (9). Housing authority commissioners are appointed by the mayor. OCGA §§ 8-3-50 (a) (1) & (2), 8-3-51 (a) & (e). The commissioners or other local governing body determines whether it is advisable for the housing authority to exercise any power of eminent domain. OCGA § 8-3-10. Housing authorities must file annual reports of their activities with, in the case of a city or county housing authority, for example, the city or county clerk or similar officer. OCGA §§ 8-3-3 (5), 8-3-9.
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Based upon the foregoing, we must now determine whether the Housing Authority is an instrumentality, department, or agency of the State.
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Our review of the enabling legislation and the latest evolutions of our Supreme Court and Court of Appeals case law shows that, while the Housing Authorities Law certainly has the statewide purpose of creating local authorities to benefit citizens with affordable, safe housing and to reduce public safety expenditures, the Housing Authority itself, in terms of its purpose, function, and management, is not “indelibly intertwined” with the State.
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Here, the record does not show that the Housing Authority is so indelibly intertwined with the State as to invoke the protection of State sovereign immunity. “[I]t stands to reason that the doctrine of [sovereign immunity] would be inapplicable to a lawsuit in which there is no sovereignty to protect.”
