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Archive for the ‘Government Law’ Category

Sovereign Immunity Finally Bars $10.6 Million Judgment Against City of Albany

Posted on: April 30th, 2019

By: Wes Jackson

Following up on our recent blog post highlighting the Georgia Court of Appeals’ decision to reverse a $10.6 million trial verdict against the City of Albany on sovereign immunity grounds, we are pleased to announce that the Georgia Supreme Court has declined to review the Court of Appeals’ decision. The Supreme Court’s decision marks an important win for local governments in Georgia. Freeman Mathis & Gary attorneys Sun Choy, Jake Daly, and Wes Jackson represented the City as appellate counsel.

The wrongful death case concerned the murder of a young man at an illegal night club in Albany, Georgia. The administrators of the man’s estate argued at a trial that the illegal club was essentially a “nuisance” the City of Albany had created or maintained by declining to shutter the club when it had prior opportunities to do so. After trial, a jury awarded the plaintiffs $15,200,000 in damages, apportioning 70% of the liability to the City. The jury only apportioned 10% of the liability to the owners and operators of Brick City, 13% to the actual murderer, and 1% each to seven participants in the brawl.

In reversing, the Court of Appeals concluded that plaintiffs cannot circumvent sovereign immunity by simply alleging that the City’s discretionary conduct amounted to the maintenance of a “nuisance.” The Court of Appeals’ decision is available at City of Albany v. Stanford, 347 Ga. App. 95, 815 S.E.2d 322 (2018). The Georgia Supreme Court’s decision to deny plaintiffs’ petition for certiorari makes the Court of Appeals’ decision final.

The case marks an important win for municipalities in Georgia by reinforcing the scope of their defense of sovereign immunity.

For additional questions about this matter or sovereign immunity under Georgia law, please contact Sun Choy ([email protected]), Jake Daly ([email protected]), or Wes Jackson ([email protected]).

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].