Local Government Law
| Jurisdiction | Georgia,United States |
| Publication year | 2020 |
| Citation | Vol. 71 No. 1 |
Local Government Law
Russell A. Britt
Michael C. Pruett
Jennifer D. Herzog
Brittanie Browning
Jacob Stalvey O'Neal
Pearson Cunningham
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Another banner year for local governments. A gubernatorial veto preserves, for now, the Georgia Supreme Court's decision in Lathrop v.
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Deal2 that held sovereign immunity bars declaratory and injunctive relief claims against the state, including challenges to constitutionality under the state constitution.3 In the world of tax, some clarification on appraisal methodologies feature alongside cases notable for their unique procedural postures. A Georgia Supreme Court decision4 fleshes out what is required for a "meaningful" hearing to be afforded under zoning procedures law. Last year's developments in the Open Meetings5 and open Records Acts6 continue to bear fruit, and statutory construction comes front and center to this year's developments in Whistleblower Act7 case law.
This survey period recognizably did not include a decision on sovereign immunity8 with more implications than the Lathrop v. Deal9 decision discussed in last year's article;10 however, interesting developments on the issue continue to arise. In City of Albany v. Stanford,11 the Georgia Court of Appeals addressed whether a city is entitled to sovereign immunity from a nuisance that purportedly endangers life.12 The facts involved the City of Albany continuing to re-issue an occupational tax certificate to a business to operate a recording studio and entertainment facility, despite knowledge of allegations that the business was operating a night club and serving alcohol without a permit. The city also had knowledge of multiple police raids on the establishment, which uncovered evidence of alcohol sales,
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weapons, and drugs. The plaintiffs, as the co-administrators of a murder victim's estate, alleged that the dangerous conditions in and around the business establishment, of which the city was aware, resulted in a nuisance and the shooting death of the murder victim.13
The city argued it was entitled to sovereign immunity, while the plaintiff contended that such immunity "[did] not apply because cities have always been responsible for damages caused by nuisances maintained by the city that endanger life."14 The court of appeals, however, determined that there was no "[nuisance] 'exception' applicable to the facts of this case."15 First, although a "nuisance exception" to sovereign immunity is available in cases involving a taking of property, such "exception" does not apply in this case "where the 'damage' is injury to a person or loss of life."16
Second, the city did not waive its sovereign immunity under the Official Code of Georgia Annotated section 36-33-l(b),17 as the plaintiffs suggested.18 Section 36-33-1(b) "provides a narrow waiver of a municipal corporation's sovereign immunity '[f]or neglect to perform or [for] improper or unskillful performance of their ministerial duties[.]'"19 In the context of this code section, "ministerial functions" for which a municipality may be liable involve "the exercise of some private franchise, or some franchise conferred upon the municipality by law which it may exercise for the private profit or convenience of the municipality or for the convenience of its citizens alone, in which the general public has no interest."20 Conversely, municipalities are entitled to assert sovereign immunity for "governmental functions," which are "of a purely public nature, intended for the benefit of the public at large, without pretense of private gain to the municipality."21 Applied to the facts of this case, and without deciding whether the issuance of an occupational tax certificate is "ministerial," the court of appeals determined that "the decision of when and whether to revoke an occupational tax certificate is a governmental function because it is the
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exercise of the city's police power, which is inherently discretionary."22 Accordingly, the court of appeals held that the city was entitled to sovereign immunity and reversed the trial court's denial of the city's motion for judgment notwithstanding the verdict.23
The dissent, however, opined that "the majority's opinion applies an inapplicable line of precedent and thereby writes this longstanding and important [nuisance] exception to the protection of sovereign immunity out of Georgia law."24 The dissent pointed to precedent holding that a municipality may be liable for damages it causes to a third party from the creation or maintenance of a nuisance—regardless of whether the municipality was performing a governmental function.25 The dissent further pointed to the Georgia Supreme Court's holding in City of Thomasville v. Shank,26 where the supreme court held that "'a municipality is liable for creating or maintaining a nuisance which constitutes either a danger to life and health or a taking of property.'"27 The dissent agreed with the majority's conclusion that cases involving the taking of property without just and adequate compensation do not apply to this case; however, cases involving a nuisance that is dangerous to life and health do apply.28
The majority acknowledged the holding in Shank, but determined that it was later clarified in Georgia Department of Natural Resources v. Center for a Sustainable Coast, Inc.29 by the Georgia Supreme Court.30 According to the majority, the supreme court in Sustainable Coast held that "the 'nuisance exception' recognized in Shank was not an exception at all, but instead, a proper recognition that the Constitution itself requires just compensation for takings and cannot, therefore, be understood to afford immunity in such cases."31 And "such an 'exception' for cases triggering application of the eminent domain clause of the Constitution does not apply here in this case where the 'damage' is injury to a person or loss of life."32
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Concurring fully and specially, the concurrence noted, although a municipality cannot assert sovereign immunity in defending against a private nuisance claim, the court was unaware of any precedent holding a municipality liable for a private nuisance "where the alleged nuisance resulted in personal injury to a member of the public, as opposed to the owner or occupier of the property."33 And "given the rationale for the [nuisance] exception—that the government may not unreasonably interfere with private property rights—[the concurrence saw] no basis for extending the exception to include claims [resulting in personal injury to a member of the public]."34 Moreover, to the extent the plaintiff attempted to assert a public nuisance claim, the concurrence noted that there was no precedent extending the "nuisance exception" to sovereign immunity for such a claim.35 The concurrence therefore agreed that the city was entitled to sovereign immunity.36
The majority opinion provided a significant victory to the city by reversing a $10,640,000 judgment.37 More importantly, the physical precedent decision38 provides persuasive authority for limiting the "nuisance exception" to sovereign immunity for municipalities going forward.
In Fulton County School District. v. Jenkins,39 the Georgia Court of Appeals reaffirmed the limitation on school districts' waiver of sovereign immunity for incidents involving a school bus.40 The allegations in the complaint involved a bus driver failing to ensure a special needs student exited the bus at school. As a result, the student allegedly remained on the bus while parked in the school's transportation-system parking lot for the evening, unwittingly locked inside the bus by the driver.41
The school district moved to dismiss the complaint, arguing it was entitled to sovereign immunity. The plaintiff argued that sovereign
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immunity was waived by O.C.G.A. § 20-2-1090,42 which requires school districts to have insurance policies covering school children, and O.C.G.A. § 33-24-5l(b),43 which expressly provides a waiver of sovereign immunity for injuries arising from the operation and use of a government entity's motor vehicle. 44 The trial court concluded that O.C.G.A. § 20-2-1090 waived the school district's sovereign immunity for the plaintiff's claims. 45
The court of appeals reversed, noting that its earlier decision in Rawls v. Bulloch County School District46 foreclosed the argument that O.C.G.A. § 20-2-1090 somehow waived a school district's sovereign immunity.47 The court's holding relied on the fact that O.C.G.A. § 20-2-1090 does not provide express language waiving sovereign immunity or the extent of such waiver.48
The court of appeals contrasted O.C.G.A. § 33-24-51,49 which does provide an express waiver of sovereign immunity and the extent of the waiver.50 However, the court of appeals held that O.C.G.A. § 33-24-51 did not apply to this case because, as in Rawls, there was no vehicular accident as contemplated by O.C.G.A. § 33-24-51.51 Thus, the court of appeals reversed the trial court's denial of the school district's motion to dismiss.52
During the survey period, the Georgia Court of Appeals addressed on multiple occasions the requirement of a written contract in order to waive a local government's sovereign immunity for breach of contract claims. In Browning v. Rabun County Board of Commissioners,53 the wife of a deceased county employee brought a breach of contract claim after she was denied proceeds from an optional life insurance policy.54 The record did not contain an enrollment form signed by the deceased for the election of coverage under the optional policy.55 And even though
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there was a summary of benefits that purported to show the deceased was enrolled in the optional policy, the court of appeals held that the summary of benefits was...
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