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Posts Tagged ‘government’

Can You Even Do That? What Happens When a Judge is Sued and the Defense of Absolute Judicial Immunity is Raised

Posted on: February 6th, 2019

By: Jake Loken

It is a rare sight to see a judge being sued, so what happens when one is? The process is generally the same as any other lawsuit, but one important doctrine can get in the way: absolute judicial immunity.

The doctrine of absolute judicial immunity was recently discussed in McCullough v. Finley, 907 F.3d 1324 (11th Cir. 2018). In McCullough, residents of Alabama sued municipal judges, along with a mayor and two police chiefs. The residents alleged the judges had violated federal anti-peonage statutes, which prohibit forced labor by coercive means, and the law of false imprisonment by “unlawfully depriving them of their liberty for their failure to pay fines.”

In response, the judges asserted absolute judicial immunity, but the district court denied immunity. Normally, only final decisions can be appealed, but when a district court denies the defense of absolute judicial immunity, this denial may be immediately appealed as a “final decision.” The denial is a “final decision” because if the court would allow the defense of immunity to stand, then the case would end, as immunity would prevent the suit from moving forward against the judges.

In reviewing the denial of absolute judicial immunity, the Court worked through a four-factor analysis “to determine whether the nature and functions of the alleged acts [were] judicial.” The Court found that the judges’ acts were judicial as they involved sentencing the residents to jail time, which is a normal judicial function that occurred in court.

The Court also determined the judges did not act in the “‘clear absence of all jurisdiction,’” because “[a] judge acts in ‘clear absence of jurisdiction’ only if he lacked subject matter-jurisdiction.” The Court made it clear that only in “rare circumstance[s]” would immunity not apply.

When a judge is sued, the judge can raise the powerful defense of absolute judicial immunity. So to answer the question found in the title, “can you even do that?”—with “that” being sue a judge—yes, a judge can be sued, but absolute judicial immunity can stop the suit in its tracks.

If you have any questions about this case, absolute judicial immunity, or other types of immunity, please contact Jake Loken at [email protected].

Georgia Court of Appeals Concludes the Term “Affiliate” is Ambiguous

Posted on: February 4th, 2019

By: Jake Carroll

In Salinas v. Atlanta Gas Light Company,[1] the Georgia Court of Appeals’ recently examined whether Georgia Natural Gas (“GNG”) and Atlanta Gas Light Company (“AGLC”) were “affiliates.” Both AGLC and GNG were owned and controlled, either directly or through an intermediary, by a company named AGL Resources, Inc.

In Salinas, AGLC sought to dismiss Plaintiff’s claims and compel arbitration. In support of its argument, AGLC relied on a term in GNG’s service agreement that required the Plaintiff to arbitrate any disputes with GNG’s “affiliates.” However, since the term “affiliate” was not defined in GNG’s agreement, the Court of Appeals looked at how the term “affiliate” is defined in the Georgia Code, Black’s Law Dictionary, and other jurisdictions, and ultimately determined that the term is ambiguous. The Court of Appeals construed the agreement against GNG—the drafter of the contract—and as a result, AGLC could not demand arbitration of Plaintiff’s dispute.

While the Court of Appeals did not set-out a specific definition for “affiliate,” the Court’s analysis provides a couple of practice tips to anyone involved in drafting, reviewing, or enforcing contracts, including commercial agreements, government contracts, or insurance policies.

  1. Define Your Terms: The Salinas Court may not have had to address the meaning of “affiliates” if the Agreement had defined the term. But, since the term was not defined, the Court looked elsewhere, including other jurisdictions, the Georgia Code, and the dictionary to determine its meaning. Including a definitions section is an easy way to set out the agreed-upon meaning of a term throughout a contract, and should not be overlooked.
  2. Be Explicit: If there is a certain sibling or parent corporation that should be a beneficiary of a contract, consider listing the specific “affiliates” to which the contract or agreement should apply.
  3. Check Your State’s Code: The Court noted that the term “affiliate” is defined over 20 times in the Georgia Code, and the definitions vary. For example, in the context of financial institutions, an affiliate is an entity that controls the election of a majority of directors, trustees of a financial institution, or an entity that owns or controls 50 percent or more of the financial institution. O.C.G.A. § 7-1-4 (1). In Georgia’s Corporations Act, the definition of affiliate is broader: “a person that directly, or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a specified person.” O.C.G.A. § 14-2-1110 (1).[2] Depending on the type of corporate entity, “affiliate” may not include every entity in a corporate structure, and certain rules regarding ownership and control may be relevant.

If you need help with this issue, or any other commercial law questions, Jake Carroll practices construction and commercial law, is licensed to practice in Georgia and Florida, and is a member of Freeman Mathis & Gary’s Construction Law and Tort and Catastrophic Loss practice groups. He represents corporations and manufacturers in a wide range of litigation and corporate matters involving breach of contract, business torts, and products liability claims. He can be reached at [email protected].

[1] 347 Ga. App. 480; 819 S.E.2d 903 (2018).
[2] See also O.C.G.A. § 18-2-71 (1) (B) (“Affiliate” has multiple definitions, including “[a] corporation 20 percent or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote by the debtor or a person who directly or indirectly owns, controls, or holds with power to vote 20 percent or more of the outstanding voting securities of the debtor[.] …”).

Who Can Lobby?

Posted on: January 8th, 2018

By: Allan J. Hayes

Most businesses are subject to federal, state and local laws and regulations. The business value at stake from legislative and government regulatory intervention is huge: about 30 percent of earnings for companies in most industries, according to a 2010 study by McKinsey & Company, and higher still in the banking sector, where the figure tops 50 percent. Participation in the political and public policy processes is vital to most businesses. This participation is generally referred to as lobbying.

Can anyone lobby? Well, yes. The Encyclopedia Britannica defines lobbying as “any attempt by individuals or private interest groups to influence the decisions of government.” The United States Constitution provides for lobbying in the First Amendment by protecting the right of individuals “to petition the government for the redress of grievances.”

If anyone can do it, why does FMG have professional registered lobbyists? Lobbying involves more than persuading legislators. Professional lobbyists research and analyze legislation or regulatory proposals, attend legislative hearings, and educate government officials and corporate officers on important issues. It is a full-time job that requires a specialist to properly execute. Our experienced professionals represent our client’s interests before government so our clients can concentrate on effectively running their business.

Also, the federal government and most states regulate lobbying. Lobbyists working to influence the federal government are regulated by the Lobbying Disclosure Act of 1995, as amended. According to the National Conference of State Legislatures, there are more than 50 versions of lobbying laws in states and territories. In Georgia for instance, Georgia Code §21-5-70 and §21-5-71 defines a lobbyist as one who receives more than $250.00 per year to “promote or oppose the passage of any legislation by the General Assembly, or any committee of either chamber or a joint committee thereof, or the approval or veto of legislation by the Governor.” The statutes further regulate expenditures by lobbyists for entertainment, meals and gifts as well as disclosure of and the amounts spent on such activities. These regulatory burdens can be significant for the part-time or occasional lobbyist.

When I did research on lobbying in Georgia in the early 1990s for the book Politics in Georgia by Dr. Arnold Fleischman and Dr. Carol Pierannunzi, of UGA and KSU respectively, there were 1059 lobbyists registered.  In 2016 there were 1085 registered lobbyists, even though the ethics laws had been strengthened three times, the number has not fluctuated much in 25 years. For good reason, businesses and associations have continued to trust professional lobbyists to represent their interests at the Capitol.

For more information, please contact Allan Hayes at [email protected].

 

The Entrepreneurs Parole Visa – Full Steam Ahead – For Now

Posted on: December 4th, 2017

By: Kenneth S. Levine

On 12/1/2017 a Federal Judge ruled that the Department of Homeland Security did not have legal cause to delay the enactment of a visa program for foreign entrepreneurs. The program, referred to as the “International Entrepreneur Rule,” was supposed to have gone into effect on 07/17/2017.

On 7/10/2017 the current presidential administration announced a delay in the program until March 2018. As FMG predicted back in July 2017, litigation immediately ensued, and the Federal Court did in fact determine that the rule delay was unlawful because it failed to comply with the APA (Administrative Procedures Act).

The Court’s decision mandates that the U.S. Citizenship and Immigration Services must immediately begin accepting applications under this program. Applicants may be “paroled” (i.e., admitted) into the U.S. to run their own business if they can show at least $250,000 of investment capital from established, reputable investors.

It is anticipated that the current presidential administration will seek to enact a complete withdrawal of the program through the APA’s formal rule making process. While a complete withdrawal would likely take 1-2 years, it is unknown whether the current administration will be able to legally halt the program through the judicial appeals process. Accordingly, FMG Immigration Attorneys urge those interested in applying for the program to do so promptly.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Kenneth S. Levine of the law firm of Freeman, Mathis & Gary, LLP at (770-551-2700) or [email protected].

Let’s Go to the Replay: Effective Use of Video Footage to Defend Constitutional Claims

Posted on: September 27th, 2016

By: Andrew Treese and Kevin Stone

The 1989 premier of COPS, and more significantly the Rodney King incident in 1991, marked the beginning of a new era in law enforcement: the era of “policing on video.”  Technological advances, combined with lower prices and the availability of state and federal grants, spurred law enforcement agencies across the country to equip patrol cars with dash-cam systems.  More recently, the advent of portable digital recorders has prompted departments across the country to deploy body-cams — and in at least one case, the FBI obtained drone-mounted footage of a law-enforcement shooting incident.  Occasionally our clients ask whether this trend is helpful to the defense of civil claims.  The answer?  Yes.  Here’s why:

Our goal in defending excessive force claims is not only to obtain a win for the defense, but to do so as quickly as possible – preferably on a motion to dismiss or for summary judgment.  Without video, excessive force claims often boil down to a “he said / she said” dispute between police officers and suspects. Unfortunately, the presence of conflicting testimony can bar summary judgment, even where the plaintiff’s testimony seems to lack facial credibility, so long as the testimony creates a “genuine dispute” as to material facts in the case.

Fortunately, not all disputes are genuine.  Several years ago, our law partners Phil Savrin and Sun Choy won Scott v. Harris in the United States Supreme Court.  Scott is the principal case addressing the constitutionality of the use of force in police pursuits.  Equally as important, however, is the portion of the opinion that addressed summary judgment in cases involving incidents recorded on video. In no uncertain terms, the Court explained, “At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts. … When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment. … Respondent’s version of events is so utterly discredited by the record that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape.”

Since it was issued, Scott has been cited for this principle nearly 2,500 times.  The result is that dash-cam, body-cam, surveillance, and bystander video footage, which are becoming increasingly more prevalent, may provide defendants with a pathway to summary judgment that would not have been available otherwise.  Notably, video is not always a “silver bullet” to obtaining summary judgment.  Key events may take place out of the frame of the camera, audio tracks might not capture key statements or comments, or a court could simply decide that summary judgment is inappropriate based on the facts as depicted in the video.  Dashcam video may also fail to fairly show what the defendant officer would have seen from his position.  Even body-cam video may not fairly depict the officer’s perspective if the video is slowed, paused, and/or viewed numerous times.  Officers, after all, get one chance to watch events unfold at full speed.  Video footage can, however, eliminate disputes about what happened, allowing the court to focus on the legal analysis, rather than parse through each party’s version of the event.

The importance of securing relevant video footage as soon as possible after an incident occurs cannot be understated – not only to permit early case evaluation and avoid spoliation arguments, but to maximize the odds of obtaining summary judgment if suit is filed.  To this end, some states — including Georgia — have begun implementing mandatory retention periods for police video recordings, a topic we will address in a future blog.