ContractsProf Blog

Editor: Jeremy Telman
Oklahoma City University
School of Law

Tuesday, December 27, 2022

Contracts and the Death Penalty in Georgia

Georgia Supreme Court SealLast week, the Georgia Supreme Court provided evidence (if readers of the blog needed any) that contracts can be a life or death matter.  The case, Georgia v. Federal Defender Program, began when a death row prisoner, Virgil Delano Presnell, Jr., filed a breach of contract claim against the state, for failure to abide by a promise made by the state and its attorney general relating to the suspension of execution proceedings during the COVID pandemic. 

Specifically, the agreement, communicated in an e-mail, stated:

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.

The Attorney General's office promised not to pursue an execution warrant until six months after the three above-named conditions were met.  And then, one-year later, the state issued an execution order for Mr. Presnell, whose case was indisputably subject to the e-mail referenced above, before two of the three conditions had been met.  

Georgia argued that the e-mail agreement could not be enforced against it without violating sovereign immunity, but the trial court found that the e-mail itself constituted a waiver of sovereign immunity.  Georgia's Supreme Court agreed.  Its discussion might serve as a useful teaching vehicle for those who want to cover electronic signatures.  

The Supreme Court first established that the was no per se rule that Georgia could not waive its sovereign immunity in an e-mail.  Next, there was the trickier issue of whether Georgia had agreed to be bound by electronic signatures in this case, as required under the Georgia Uniform Electronic Transactions Act (GUETA).  The court looked at the context of the parties' interactions and concluded that the state had consented to be bound by electronic means, satisfying GUETA.  The state tried to contend that, in contracts involving the state, certain formal requirements must be met, and the state must explicitly state that it is agreeing to be bound in electronic form.  The Supreme Court found nothing in the statute creating special rules for contracts involving the state.  The only requirement is that the agreement at issue be a "transaction," as defined in GUETA, which this undoubtedly was. "Transaction" is defined to include agreements involving state entities.  

Gergia state flag
Georgia next argued that even if it could waive its immunity by e-mail and even if it had agreed to be bound by electronic form, the e-mail in question was not signed.   The Supreme Court did not buy it.  GUETA provides broad guidelines for what constitutes a signature.  Here, where an agent of the attorney general with proper authority manually typed her name into an e-mail from her government account, she signed on behalf of Georgia, and Georgia was bound.  Another agent of the state confirmed and thus ratified the agreement. 

Going down swinging, Georgia argued that the agreement was unenforceable because it lacked consideration.  The Supreme Court noted that the consideration requirement is easily met.  Here, plaintiffs agreed to be bound by the e-mail in exchange for giving up their efforts for a more complete resolution through legislation addressing all of the issues surrounding the challenges related to capital defense during COVID. 

The Supreme Court wasted little time dismissing Georgia's argument, raised for the first time on appeal, that the argument was unenforceable because vague.  There were other arguments relating to injunctive relief, but there the state fared no better than it had with its contractual claims.

Georgia state sealIt took the majority no less than 87 pages to address all of Georgia's arguments for why it should not be bound by its electronic agreement with the plaintiffs.  In a short concurrence, six Justices noted the state motto: "Wisdom, Justice, Moderation."  The state's conduct in this matter, the concurring Justices noted, could breed cynicism.  "Government is often an accidental vector of our society’s cynicism," the concurrence noted.  "It really should avoid being an intentional one." 

"[T]he State should keep its promises," the concurrence continues, "because The People of Georgia, who are the very source of the State’s sovereignty, are owed a government that honors its commitments."  The Justices regretted that anybody in state government thought it appropriate to ask that the government be excused from doing so. 

It's a peach of an opinion and a dandy concurrence.

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Because of its compelling facts, this would be a great case to teach in Contracts, especially when teaching the statute of frauds and U.E.T.A. The consideration argument is indeed thin on the description above because the State did not seem to bargain for the plaintiffs' "agreement to be bound," but i think a promissory estoppel argument would be on firmer ground, at least to a court sympathetic to the need to avoid "injustice.'

Posted by: Sidney DeLong | Dec 27, 2022 11:16:56 AM