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Archive for the ‘Government Law’ Category

Georgia General Assembly Passes Waiving Sovereign Immunity for Certain Claims

Posted on: April 11th, 2019

By: William J. Linkous, III

For the second time in recent years the Georgia General Assembly has passed legislation waiving sovereign immunity for certain claims against the State, and against local governments. In 2016, then-Governor Deal vetoed a bill that waived sovereign immunity in specific circumstances on the grounds the waiver was too broad. This year, the General Assembly enacted HB 311, sponsored by Rep. Andy Welch (R-McDonough). The bill must be signed by Governor Kemp within 40 days for it to become law.

HB 311 contains an initial section waiving sovereign immunity for claims seeking declaratory or injunctive relief to remedy an injury in fact caused to an aggrieved person by the state, a state governmental entity, or an officer or employee in his or her official capacity in violation of a state statute, the Georgia Constitution, or the United States Constitution. The bill provides a list of exceptions to the waiver, including claims for monetary relief, attorneys’ fees, or expenses of litigation except as provided in O.C.G.A. § 9-15-14, claims brought in federal court, and claims brought by inmates in penal institutions.

The more interesting provisions of the bill for local government attorneys and officials are the provisions that apply to counties, municipalities, and consolidated governments. The bill would add new provisions found in O.C.G.A. §§ 36-80-50 to 36-80-56 which would waive sovereign immunity as to any claim brought by an aggrieved person in the superior courts of Georgia against counties, municipalities, and consolidated governments or entities relating thereto, or against an officer or employee thereof in his or her official capacity seeking declaratory or injunctive relief in certain circumstances. Those circumstances include (1) challenges to local ordinances, rules, and policies under the U.S. or Georgia constitutions, state statutes, or rules or regulations; (2) remedies to injuries in fact, or imminent threats thereof, of an aggrieved person of a local government, officer, or employee acting without lawful authority, beyond the scope of official power, or in violation of the U.S. or Georgia constitutions, state statutes, rules or regulations, or local ordinances other than zoning ordinances; and (3) remedies to injuries when the injury is related to the award of a proposed agreement with a local government or an officer of employee thereof.  Under category (3), suit must be filed within 10 days from the date that the award is made public.

The provisions relating to local governments also provide a similar list of exceptions to the waiver list for the state. The bill provides that it shall be narrowly construed and shall not alter or amend any other immunities nor any other requirements for filing suit. The bill contains provisions limiting liability for officers and employees in their individual capacities and discouraging suit against employees individually, and it will be interesting to see how those provisions interact with official immunity if the bill is signed into law. The bill also contains a provision prohibiting such suits until 30 days after notice is mailed to the local government providing notice of the claim. If the bill becomes law, this 30-day provision may be a stumbling block to litigants who wish to proceed immediately to a temporary restraining order upon an injunctive relief or declaratory judgment claim. Moreover, such suits cannot be filed later than 90 days after providing the notice. The bill also provides for waiver of sovereign immunity for claims of breach of contract by local governments.

The bill also provides for waiver in quiet title actions and also provides for immediate appeals for judgments, orders, or rulings denying or refusing to grant immunity to one or more parties based upon sovereign, official, qualified, or any other immunity.  However, only one immediate appeal is allowed.

It will be interesting to see whether the bill is signed into law, and if so the implications it will have on local government litigation.

If you have any questions or would like more information, please contact William Linkous at [email protected].

McKinney Due Process Analysis Alive and Well in the Eleventh Circuit

Posted on: April 9th, 2019

By: Dana Maine

This will be a short blog: “The question before us is whether a litigant in this Circuit has a substantive-due-process claim under the Due Process Clause of the Fourteenth Amendment when the alleged conduct is the unlawful application of a land-use ordinance. The answer to that question is a resounding ‘no’ – an answer that this Court delivered in McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994), 24 years ago and has affirmed ever since.”  Hillcrest Property, LLP v. Pasco County, 915 F.3d 1292 (11th Cir. 2019).  The opinion is a good read for land use practitioners in all circuits.

As for people interested in Georgia law, note that the Georgia Supreme Court has followed the legislative vs. administrative/adjudicative distinction from the federal law in the 2017 trilogy of land use cases – City of Cumming v. Flowers, 300 Ga. 820 (2017), Schumacher v. City of Roswell, 301 Ga. 635 (2017), Diversified Holdings, LLP v. City of Suwanee, 302 Ga. 597 (2017).

For assistance with this or any other local government matter, please contact Dana Maine, [email protected], or any other member of our National Government Practice Group, a list of which can be found on our website – www.fmglaw.com.

 

Split in the Circuits May Force SCOTUS to Revisit Kingsley

Posted on: March 14th, 2019

By: Ali Sabzevari 

In Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), the Supreme Court held that a pretrial detainee may prevail on a § 1983 excessive force claim if he or she shows that the force used was objectively unreasonable, regardless of whether the officer had a subjective intent to cause the detainee harm. In reaching this decision, the Court granted more protection to pretrial detainees under the Fourteenth Amendment’s Due Process Clause than is given to convicted prisoners under the Eighth Amendment, which still requires proof of a subjective intent to cause harm before there is a constitutional violation. This make sense because a pretrial detainee is innocent until proven guilty, and so the detainee cannot be subjected to any form of punishment. On the other hand, it is well-settled that a convicted prisoner may be punished so long as the punishment is not “cruel and unusual” under the Eighth Amendment.

Recently, we have seen an uptick in cases whereby pretrial detainees are contending that the holding in Kingsley applies to any and all § 1983 claims, not just those founded on allegations of excessive force. But this is not the holding in Kingsley. Nevertheless, the Ninth Circuit in Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) applied such an interpretation, opening the door for this creative argument. Other circuits, such as the Eleventh Circuit, have denied such an extension despite recent opportunities to do so. Johnson v. Bessemer, 741 F. App’x 694, 699 n.5 (11th Cir. 2018).

The fact remains that the Supreme Court has not ruled on whether to extend this objective reasonableness standard of review to cases of pretrial detainees which do not involve the use of excessive force, e.g., cases challenging medical treatment or conditions of confinement. The current circuit split could mean that the issue might be back in front of the Supreme Court at any time.

If you have any questions or would like more information, please contact Ali Sabzevari at [email protected].

 

Phony Fakes Fall (Allegedly)

Posted on: February 15th, 2019

By: Kevin Stone

The fictional Mike Moffitt famously called Jerry Seinfeld a phony. The reasons remain unknown. A non-fictional New Jersey man, however, appears to be a bona fide phony. Surveillance video of a company breakroom appears to capture the man throwing ice on the floor and then gently laying down next to it. He then filed an insurance claim for the ambulance ride and hospital treatment that followed the “fall.” Unlike the fall, the filing of the claim may actually harm him, as he was arrested for filing a false claim.

This incident is a great reminder to maintain surveillance cameras where appropriate. Cases often come down to the credibility of the plaintiff. But cameras don’t lie.

If you have any questions or would like more information, please contact Kevin Stone at (770) 303-8643 or [email protected].

Can Governments be Liable for Mass Shootings under the Constitution?

Posted on: February 11th, 2019

By: Phil Savrin

The recent tragedies of mass shootings have spawned litigation over the civil liabilities of state governments for failing to protect members of the public from harm, particularly when there were advance warning signs that police departments overlooked or ignored. To evaluate whether States can be liable under the Constitution for such conduct we need to reach back 30 years to a decision by the Supreme Court called DeShaney. In that case, county officials had allowed an abused child to remain in a household despite knowledge of mistreatment, after which the boy was left permanently disfigured. In considering a civil rights claim brought on his behalf under the due process clause, the Supreme Court reasoned that the Constitution places limitations on the government’s ability to act and does not affirmatively require it to provide services that benefit the public. It is up to the individuals States to allocate resources to provide for public safety, in other words, as opposed to an obligation mandated by the Due Process Clause. That said, the Supreme Court reasoned that it is only when the State takes some action that puts a person in peril that the Constitution imposes “some corresponding duty to assume some responsibility for his safety and general well-being.”

Cases applying DeShaney’s reasoning are often heart-wrenching, as they tend to involve very egregious injuries that could have been avoided had law enforcement officers acted on knowledge they possessed. The most extreme example applying DeShaney can be found in the Supreme Court’s 2005 decision in Town of Castle Rock, where police officers refused the desperate pleas of a citizen to arrest her estranged husband who had violated a restraining order, resulting in the father’s murder of the couple’s three daughters. These harms could have been avoided had the State acted to intercede, yet it is only when the State by its conduct affirmatively puts the person in danger that the State has a constitutional obligation to protect that individual from harm.

Which brings us to the question of mass shootings such as the incidents at the Pulse nightclub in 2016 where a gunman killed 49 people or the high school in Florida in 2018 where a student opened fire killing 17 persons. In lawsuits that followed, allegations were made that government officials either ignored warnings or intentionally failed to act, thereby violating the constitutional rights of the victims. In both circumstances, however, the federal courts applied DeShaney to conclude that without danger created affirmatively by the State’s conduct, there is no constitutional right to protection where the harm begins and ends with the actions of a private citizen.

The absence of a constitutional claim in these circumstances does not, of course, mean that there can be no remedy of any sort. What these cases hold instead is that any such remedy exists by reference to state law as the federal Constitution is a bulwark against governmental interference in the public arena and is not a guarantor of safety for the citizenry.

If you have any questions or would like more information, please contact Phil Savrin at [email protected].