Local Government Law
| Publication year | 2014 |
Local Government Law
Kirk Fjelstul
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This Article reviews Georgia appellate decisions presenting new or instructive issues related to local government law during the survey period from June 1, 2013 to May 31, 2014.1
Overruling IBM v. Georgia Department of Administrative Services2 and setting new precedent, the Georgia Supreme Court in Georgia Department of Natural Resources v. Center for a Sustainable Coast, Inc.3 held that sovereign immunity is a bar to injunctive-relief claims at common law.4 The plaintiff, Center for a Sustainable Coast, Inc. (the Center), sought declaratory and injunctive relief, contending that the Shore Protection Act (the Act)5 did not authorize the Georgia Department of Natural Resources (DNR) and its officials to issue "Letters of Permission" (LOPs) for land-alteration activities along the coast.6 The
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supreme court granted certiorari from Center for a Sustainable Coast, Inc. v. Georgia Department of Natural Resources7 in part to consider whether the Georgia Court of Appeals "erred by finding that sovereign immunity was no bar to injunctive relief at common law."8
The court of appeals had ruled that the trial court improperly relied on sovereign immunity to dismiss the injunctive-relief claims.9 The court reasoned that sovereign immunity was not available for injunctive-relief claims based on ultra vires or illegal conduct.10 The court of appeals relied on IBM and concluded that "a governmental entity cannot cloak itself in sovereign immunity while performing illegal acts to the detriment of its citizens."11
The supreme court in IBM recognized a legal fiction by creating an exception to sovereign immunity for injunctive-relief claims concerning acts conducted outside of the scope of lawful authority.12 Sovereign immunity barred injunctive claims if the asserted acts were legal, but the immunity exception allowed the claims to proceed if the asserted acts were not legal.13 Immunity exceptions, as interpreted in IBM, are often used by courts to avoid the harsh consequences of immunity that result from acts conducted outside the scope of authority.14 An exception is different than a waiver in that an immunity waiver is expressly authorized by the Constitution of the State of Georgia,15 but it can only be applied by the Georgia General Assembly.16 The court in IBM reasoned that it could create common law judicial exceptions that were not considered waivers.17
The supreme court in Georgia Department of Natural Resources reversed the holding of the court of appeals and overruled IBM, concluding that the IBM analysis was "unsound."18 The court reasoned that the 1991 amendment to the constitution19 was clear and did not leave flexibility for judicial exceptions to immunity.20 The 1991
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amendment extended immunity to the state and its departments and agencies, which "can only be waived by an Act of the General Assembly."21 In IBM, the court had minimized the 1991 amendment, contending that it was simply intended to change the insurance waiver of immunity.22
The court in IBM also incorrectly contended that there is at least one other example of a similar judicial exception: nuisance claims.23 The court in Georgia Department of Natural Resources concluded that there is no such judicially-created immunity exception.24 Instead, immunity is simply not applicable to nuisance claims because the constitution requires just compensation for takings.25 Finally, the court concluded that the court in IBM wrongly used precedent that either predated the constitutional ratification of immunity in 1974 or failed to consider the impact of that ratification.26
Although the court in Georgia Department of Natural Resources concluded that sovereign immunity bars injunctive-relief claims against the state and its officers in their official capacities, it noted that relief may be available against the officers in their individual capacities.27 Injunctive relief would also be permitted if there is a specific waiver by act of the General Assembly, which the court concluded did not exist in the present case.28
It should be noted that this case, while initiated against a state agency rather than a local government, does have local government application. Counties are political subdivisions of the state, and as such, the 1991 amendment, which formed the basis of the court's decision, applies to counties as well as the state.29
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The court of appeals in Kautz v. Powell30 interpreted the express and supplementary powers contained in the City of Snellville's charter as it addressed the mayor's authority to terminate the city attorney's employment.31 Section 3.12 of the charter32 expressly authorized the mayor to appoint the city attorney but was silent about the authority to terminate.33 The mayor contended in her complaint that the express authority in the charter to hire carried the implicit authority to terminate.34
The court reasoned, however, that the plain and unambiguous language in section 2.16 of the charter35 vested all power with the city council that was not expressly delegated elsewhere.36 Section 2.16 provides, "Except as otherwise provided by law or this [c]harter, the city council shall be vested with all the powers of government of this city."37 It is not allowable, therefore, for the court to construe unambiguous language in favor of additional implicit authority.38 Since there is no express authority for the mayor to terminate the city attorney's employment, the court upheld the trial court's ruling that the mayor did not have authority to terminate the city attorney.39
The dissent argued that the majority ignored the longstanding rule that where an official's tenure is not prescribed by law, the power to terminate is incident to the power to appoint.40 The majority responded that it was not construing or interpreting the charter because the charter in Kautz was unambiguous.41 The majority further pointed out that the language in Bailey v. Dobbs42 relied on by the dissent was mere dicta in that the charter in that case gave the city manager the
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express power to appoint and remove employees, and the court did not use implicit power as an argument in support of its decision.43
A. Bibb County v. Monroe County
The case of Bibb County v. Monroe County44 reminds us about the limits of mandamus in matters that are legislative or political in nature. Sections 36-3-20 to -27 of the Official Code of Georgia Annotated (O.C.G.A.)45 establish the process for resolving jurisdictional boundary disputes between counties.46 By the time the case reached the Georgia Supreme Court, the boundary dispute had been through a nearly ten-year process. It followed the administrative process set out in O.C.G.A. §§ 36-3-20 to -27. A grand jury made a presentment of the dispute, and the governor appointed a surveyor. The surveyor prepared and filed a survey and plat with the secretary of state, recommending final boundary lines. Bibb County filed exceptions to the survey and Monroe County responded with a defense.47
The secretary of state referred the dispute to the Office of State Administrative Hearings, and after a three-day hearing, the administrative law judge (ALJ) recommended the acceptance of the survey and plat. The secretary of state heard additional arguments and visited the disputed area. The secretary of state then rejected the survey and left the boundary undetermined.48
Monroe County filed an action for judicial review in superior court against the secretary of state, but that action was dismissed as non-reviewable and was not appealed.49 Once the action was dismissed, Monroe County filed a mandamus action. The trial court granted the mandamus petition after a hearing and ordered the secretary of state to record the survey filed by the appointed surveyor, thereby recognizing the final boundary as the one prepared by the surveyor.50
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It is the secretary of state's duty to ascertain the boundary line: "Upon the hearing, the Secretary of State shall determine from the law and evidence the true boundary line in dispute between the respective counties."51 Bibb County and the secretary of state contended on appeal that the nature of establishing county boundary lines is purely political and is not reviewable by mandamus.52
Mandamus is a remedy for government failure to perform a clear duty, but a writ of mandamus is only available if two elements are met: (1) no other adequate remedy is available, and (2) there is a clear legal right to the relief.53 The court addressed both elements at length.
(1) No Adequate Remedy. If there is another avenue for pursuing relief that is "equally convenient, complete and beneficial," mandamus is not available as a remedy.54 The secretary of state contended that, because Monroe County could secure another grand jury presentment, a remedy other than mandamus was available.55 The court disagreed and reasoned that starting the process over could not be considered equally convenient, complete, and beneficial.56 The process had already taken nearly ten years and cost substantial sums.57 The court concluded that mandamus was available because it was the only "practicable" method for obtaining relief.58
(2) Clear Legal Right. A clear legal right to relief compels performance of a "public duty that an official or agency is required by law to perform."59 A clear legal right exists "either where the official or agency fails entirely to act or where, in taking such required action, the official or agency commits a gross abuse of discretion."60 Where the law vests the agency or official with discretion to perform an action, mandamus is not available because there is not a clear legal right to performance of the act.61 Even if mandamus is available to compel some action, it cannot be used to "prescribe how that action is taken or to...
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