Local Government
| Publication year | 2021 |
Local Government
Russell A. Britt
Kelsey L. Kicklighter
Jennifer D. Herzog
Nick Kinsley
Jacob Stalvey O'Neal
Russell A. Britt, Kelsey L. Kicklighter, Jennifer D. Herzog, Nick Kinsley, Jacob Stalvey O'Neal, Pearson K. Cunningham, and Philip E. Friduss
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This Article addresses selected opinions and legislation of interest to the local government laws issued during the Survey period of this publication.1
Perhaps the most remarkable development on sovereign immunity2 in recent years did not come from the courts but instead the voters. Attempting to address the issues raised and later decided in Lathrop v. Deal,3 the General Assembly has worked tirelessly to establish a waiver of sovereign immunity for claims seeking injunctive and declaratory relief.4 However, at least one bill failed to make it to the governor's desk5 and two other bills were vetoed by successive governors.6 Not giving up on their efforts, lawmakers were able to circumvent the governor during the 2020 legislative session by pushing through a constitutional amendment that put the question directly in voters' hands.7 House
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Resolution 1023, presented on the statewide ballot on November 3, 2020, was overwhelmingly approved with over 74% of the vote.8
With the adopted constitutional amendment in place, sovereign immunity is now waived for actions seeking declaratory relief for actions allegedly outside the scope of the government's legal authority or in violation of the Georgia or United States Constitution.9 Where a court awards declaratory relief under this expressed waiver, sovereign immunity is also waived for enjoining such acts and enforcing the judgment.10 But this limited waiver does not extend to damages, attorney's fees, or costs of litigation, unless specifically authorized by a later Act of the General Assembly.11 Notably, the scope of the constitutional waiver "shall apply to past, current, and prospective acts which occur on or after January 1, 2021."12 It, therefore, remains to be seen how appellate courts will apply this waiver to acts described as ongoing and continuous on or after January 1, 2021, yet first arose before this trigger date.
The Georgia Court of Appeals' holding in Ware v. Jackson13 is a good reminder that establishing a negligently performed ministerial act in the context of official immunity does not necessarily establish liability alone.14 The facts involved an inmate murdered by his cellmate while incarcerated in the Fulton County Jail.15 After his murder, it was discovered that the inmate should have been released from the jail three months prior to his death. As a result, the inmate's estate sued the sheriff and a sheriff's office employee who worked in the records department of the jail. The Fulton County Superior Court granted summary judgment
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to both defendants, concluding they were entitled to official immunity.16 Although the court of appeals affirmed the grant of official immunity to the sheriff, it reversed the finding that the records employee was entitled to such immunity.17 However, the court of appeals nonetheless affirmed the grant of summary judgment in favor of the records employee on different grounds.18
First, as to the sheriff, the court of appeals found that all of the claims against him were necessarily premised on the sheriffs decision to delegate authority related to the operation and oversight of the jail to his employees.19 Therefore, any acts or decisions made by the sheriff in this regard "would clearly call upon him to exercise personal deliberation and judgment based upon his experience and expertise."20 Such acts, therefore, were deemed discretionary, and absent evidence of actual malice, the sheriff was entitled to official immunity.21
As to the records employee, however, the court of appeals found that the trial court erred in granting her summary judgment on the basis of official immunity.22 It reasoned that once the records employee became aware of a discrepancy between a calendar and an inmate's record, "she had a ministerial duty to process the calendar in its entirety in order to ensure that every inmate's record, including [the subject inmate's], had been updated."23 The court of appeals nonetheless found that the failure to perform this ministerial duty was not the proximate cause of the inmate's injuries.24 It instead reasoned that the cellmate's "intervening criminal act broke the causal connection between [the records employee's] allegedly negligent conduct and [the inmate's] death."25 Absent causation, the plaintiff could not establish a prima facie case for negligence, and the records employee, therefore, was still entitled to summary judgment on the negligence-based claims.26
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In Melton v. McCarthan,27 the Georgia Court of Appeals addressed another fact pattern involving an inmate being attacked by a cellmate, but the issue of causation was not reached.28 In this case, the inmate yelled for assistance while holding the attacking cellmate.29 A deputy responded to the scene, secured the cellmate, and moved him out of the cell. The deputy, however, failed to complete a report of the incident. During a subsequent shift, the deputy left for the day and a sergeant arrived to find the cellmate out of his assigned cell. Having no knowledge of the earlier altercation, the sergeant ordered the cellmate back to his assigned cell, and soon after, the cellmate attacked and injured the inmate. The inmate proceeded to file suit against both the deputy and sergeant.30
The Fulton County State Court denied both officials' summary judgment motions.31 On appeal, the deputy argued that the trial court erred in finding he was not entitled to official immunity, claiming "his duty to create an incident report was not triggered because he had to use discretion to determine whether the incident threatened any person's safety or threatened the orderly control and security of the facility."32 The court of appeals disagreed, holding that, while the policy did not define what constitutes "physical harm or an incident threatening a person's safety or the orderly control and security of the facility," the evidence showed that any fight required an incident report be created.33 The deputy, therefore, "had a ministerial duty to create a report of the initial incident prior to the end of his shift and was not entitled to official immunity[.]"34
On the other hand, the court of appeals reversed the denial of official immunity for the sergeant.35 The plaintiff argued that a policy requiring certain staff to review earlier events and advise employees of possible noteworthy events or possible hazards from prior shifts imposed an affirmative duty to investigate events from prior shifts.36 The court of appeals rejected this argument, holding that the evidence did not support such reading of the policy and ruling that the sergeant's lack of
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knowledge of the subject incident "preclude[d] a finding that he had a duty to inform himself or staff."37 Without any such knowledge, there was no evidence that the sergeant breached a ministerial duty, and he was, therefore, entitled to official immunity.38 Accordingly, the court of appeals reversed the trial court's denial of summary judgment as to the sergeant.39
Although official immunity is generally a threshold question of law,40 it sometimes requires factual findings by the jury to be decided. Patel v. Lanier County,41 involved a written policy of the Lanier County Sheriff's Office that arguably created a ministerial duty not to leave detainees alone in vehicles during transport.42 The sheriff's deputy defendant did not deny the existence of the policy or that it created a ministerial duty; he instead argued that the policy did not apply to the transport of pretrial detainees like the plaintiff.43
The Eleventh Circuit Court of Appeals held that the text of the policy favored it applying to all detainees, but oral testimony gleaned in discovery supported the contention that the policy did not apply to pretrial detainees.44 While the United States District Court for the Middle District of Georgia granted the deputy official immunity on summary judgment, the plaintiff argued that the testimonial evidence contradicting the text of the policy, at most, created a factual question for the jury. The court of appeals agreed. It, therefore, held, "[o]n remand . . . a jury should determine—in light of the written policy and the testimonial evidence—whether [the deputy's] conduct was governed by a 'specific, simple, absolute, and definite duty' not to leave detainees like [the plaintiff] unattended during transport."45
In Hardigree v. Lofton,46 the Eleventh Circuit examined what constitutes "actual malice" or "intent to injure" in order to overcome an officer's otherwise entitlement to official immunity for discretionary functions under Georgia law.47 The facts involved a police officer's entry
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into the plaintiff's house and use of force on the plaintiff in connection with a criminal drug investigation.48 It was undisputed that such police functions are discretionary, so the only question was whether the police officer acted with actual malice or intent to cause injury.49
In the summary judgement record, several facts supported the plaintiff's allegations of actual malice.50 Most notably, the police officer testified that he did not have probable cause to enter the house, but he did so anyway. This finding highlights how courts sometimes rely on the lack of probable or arguable probable cause in the context of federal law claims to support a finding of actual malice related to official immunity and state law claims.51 With a lack of probable cause to enter...
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