Articles Posted in Government & Administrative Law

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The Stuttering Foundation, Inc. (“Foundation”) leased office space in a commercial development in Glynn County owned by Lucas Properties Holdings III, LLC (“Lucas”). In 2015, Lucas filed an application for rezoning of the property to construct an addition to the rear of one of the existing buildings in the development, the building in which the Foundation leased its office. It also sought approval of a site plan for the proposed construction. Both were approved in March 2016. For various reasons, the Foundation opposed the new development and filed a petition for judicial review of the rezoning application and Site Plan, or in the alternative, for mandamus reversing the County’s approval. Both the County and Lucas filed a motion to dismiss the complaint on its merits. The trial court entered an order granting the County’s motion to dismiss, concluding that the Foundation lacked standing to raise its objections to the rezoning. The Georgia Supreme Court agreed with the trial court that the Foundation demonstrated no right to contest the rezoning decision. Lucas’s motion to dismiss was a nullity and therefore vacated. View "The Stuttering Foundation of America, Inc. v. Glynn County" on Justia Law

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In 2006, Kenneth Berzett pled guilty to child molestation, and in 2009, the Sexual Offender Registration Review Board classified him as a sexually dangerous predator. Berzett petitioned the superior court for judicial review of his classification, and he simultaneously filed a petition for declaratory judgment, alleging that OCGA 42-1-14 was unconstitutional. Furthermore, he sought injunctive relief against enforcement or application of the electronic monitoring requirement required by the statute. As to the petition for judicial review, the superior court affirmed the Board’s classification of Berzett and denied his request for relief, and Berzett did not appeal the superior court’s decision. Meanwhile, the Board filed a motion to dismiss the declaratory judgment action. After the final decision on the petition for judicial review, the Board asserted in a supplement to its motion to dismiss that Berzett’s request for declaratory judgment had become moot because there was no longer an active controversy between Berzett and the Board, any ruling on the constitutionality of OCGA 42-1-14 would have no practical effect on Berzett, and he no longer faced uncertainty as to any future undirected action. Although the superior court dismissed one of Berzett’s constitutional claims, it denied the Board’s motion to dismiss as to all other claims, deciding that, inter alia, those claims were not moot and a petition for declaratory judgment was a proper vehicle for raising them. On subsequent cross-motions for summary judgment, the superior court granted summary judgment to the Board on one constitutional claim but granted summary judgment to Berzett on all of his other constitutional claims. The superior court held that Berzett was not subject to the electronic monitoring obligations imposed on sexually dangerous predators and issued a writ of prohibition against the Board and its officers and agents that prohibited them from requiring Berzett to wear or pay for GPS monitoring pursuant to the statute. The Board appealed, and the Supreme Court reversed and remanded for dismissal, finding the trial court erred in deciding the constitutional arguments because there was no justiciable controversy, and the relief requested by Berzett would have no effect on the Board’s already-final and completed act of the risk of classification of Berzett or on any other right or responsibility of the Board towards him. View "Sexual Offender Registration Review Board v. Berzett" on Justia Law

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This case concerned OCGA 36-11-1 and a split of opinions in two controlling case law precedents decided by the Georgia court of Appeals. In In re Estate of Leonard, 783 SEd2 470 (2016), Joe Leonard, Jr. allegedly sustained injuries while riding as a passenger aboard a Whitfield County Transit Services bus. Leonard hired a lawyer; his lawyer sent a letter to Robert Smalley, an attorney in Dalton, Georgia. Although Smalley was engaged in private practice, he also served as the County Attorney for Whitfield County, a position to which he was appointed prior to his receipt of Leonard’s letter. In that letter, Leonard’s lawyer referred to the injuries that Leonard allegedly sustained in January, and he asked that Smalley accept the letter as a presentment of Leonard’s claim against the County. The County ultimately moved for summary judgment under OCGA 36-11-1 claiming that Leonard never properly presented his claim, and as such, was barred. The County acknowledged the letter Leonard’s lawyer sent to Smalley, but argued that was not a proper presentment because Smalley was not an in-house county attorney. The Georgia Court of Appeals said in Coweta County v. Cooper, 733 SE2d 348) (2012), that presentment may properly be made to the county attorney, but only if the county attorney is employed by the county in house. In this case, the Court of Appeals distinguished between inside and outside county attorneys, holding that presentment to an outside county attorney was not a proper presentment. The Georgia Supreme Court granted a petition for a writ of certiorari to review the decision in Leonard, and reversed, holding that presentment to the county attorney (inside or outside) was presentment for the purposes of OCGA 36-11-1. View "Croy v. Whitfield County" on Justia Law

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At issue in this case was the meaning of the term “motor fuel taxes” as used in the Georgia Constitution, Article III, Sec. IX, Par. IV(b). A trucking industry association and three individual motor carriers challenged local sales and use taxes on motor fuels, the revenues of which were not used solely for public roads and bridges. They argued that these taxes fell within the meaning of “motor fuel taxes” under the Motor Fuel Provision and, therefore, the revenues from these taxes (or an amount equal to that revenue) had to be allocated to the maintenance and construction of public roads and bridges. The Georgia Supreme Court affirmed the dismissal of the plaintiffs’ complaint because the history and context of the Motor Fuel Provision revealed that “motor fuel taxes” were limited to per-gallon taxes on distributors of motor fuel, and did not include sales and use taxes imposed on retail sales of motor fuels. View "Georgia Motor Trucking Assn. v. Georgia Dept. of Rev." on Justia Law

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This case involved challenges to the City of Atlanta’s attempted annexation of five areas. Shortly after the Governor approved HB 514 on April 26, 2016, Atlanta received petitions for annexation from five unincorporated areas of Fulton County contiguous to Atlanta. Emelyn Mays and five other individuals (collectively, “Mays”), who represented each of the proposed annexation areas as residents or property owners, filed a petition for declaratory judgment challenging the annexations. The trial court held an evidentiary hearing, and shortly thereafter issued an order granting Mays’s request declaring the annexations null and void on the ground that they were untimely under the terms of HB 514 and thus the Communities were part of South Fulton. In reaching this conclusion, the court expressly rejected Atlanta’s contention that HB 514 unconstitutionally conflicted with the general laws governing annexation by municipalities by preventing Atlanta’s annexation of the Communities as of July 1, 2016. Atlanta appealed to the Georgia Supreme Court. The Supreme Court found the trial court correctly held that the annexations were invalid because at the time they would have become effective, the areas in question were already part of the newly incorporated City of South Fulton and thus ineligible for annexation by Atlanta. Accordingly, the Court affirmed. View "City of Atlanta v. Mays" on Justia Law

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Following the suicide death of her 14-year-old daughter, Appellee Laura Lane Maia sued the mayor and city council of the City of Richmond Hill (collectively, “the City”) and Douglas Sahlberg, individually and in his capacity as an officer with the Richmond Hill Police Department (collectively “Appellants”), alleging wrongful death and associated claims. Appellee’s daughter, Sydney Sanders, attempted suicide by cutting herself in the neck, chest, and abdomen, and she was subsequently taken to the hospital for medical treatment. Officers with the Richmond Hill Police Department (“RHPD”), including Officer Sahlberg, responded to the hospital to investigate, and Sanders’s injuries were photographed by the officers. Sahlberg accessed those photographs on his work computer and showed them to his daughter, K.S., who was a classmate of Sanders; shortly thereafter, K.S. was seen using her cell phone to show the images to other classmates. Sanders was distraught and mortified to discover that the photographs had been shared. In her complaint, Appellee averred (inter alia): that Salhberg had a duty to keep the injury photographs confidential; that he had breached that duty; that Sahlberg should have known that the publication of the photographs created a reasonable apprehension that Sanders would further harm herself; and that Sanders’s death was caused by Sahlberg’s negligent conduct. Appellants moved for summary judgment, asserting that Appellee could not demonstrate causation because, under Georgia law, suicide was generally an independent act which breaks the chain of causation from the events preceding the death. The trial court denied the motion with a one-page order and granted a certificate of immediate review. A divided Court of Appeals affirmed, concluding that, because “Sanders’s suicide was a reasonably foreseeable consequence of Sahlberg’s negligent conduct, [Sanders’s] act of suicide was not an intervening act that would preclude Sahlberg’s breach of duty from constituting the proximate cause of that injury.” The Supreme Court concluded Appellee could not demonstrate proximate cause and therefore reversed the Court of Appeals. View "City of Richmond Hill v. Maia" on Justia Law

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During the 2015 General Session, the legislature amended certain statutes governing Certificates of Public Necessity and Convenience (“CPNCs,” also known as taxi medallions) and created new provisions authorizing (and regulating) ride-sharing programs throughout the state. Appellants, taxicab drivers who operated in the City of Atlanta and owned CPNCs, filed suit claiming that the Act resulted in an unconstitutional taking and inverse condemnation of their CPNCs. The State moved to dismiss, arguing, among other things, that Appellants failed to state legally cognizable claims. The trial court agreed and granted the motion. Finding no reversible error, the Georgia Supreme Court affirmed the trial court. View "Abramyan v. Georgia" on Justia Law

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Appellee M7VEN Supportive Housing and Development Group (“M7”) failed to pay taxes on two properties in Carroll County, and, consequently, the Tax Commissioner conducted a tax sale. The properties were purchased by Appellant DLT List, LLC (“DLT”), for a total of $110,000, and the tax sale resulted in excess funds of approximately $105,000. The Commissioner notified M7, DLT, and others of excess funds, and, M7 filed a certificate of authorization seeking to receive the excess funds. Though there were no other claims made on the funds, the Commissioner did not release the funds. Appellee Design Acquisition, LLC, as a lienholder against M7, redeemed the properties from DLT, and DLT issued quitclaim deeds of redemption to M7. Design Acquisition filed a declaratory judgment action claiming entitlement to the excess funds, and the Commissioner filed an equitable interpleader action for the purpose of distributing the excess funds. The two actions were consolidated. The trial court determined that, because M7 was the only entity to have made a claim for the excess funds or to have had a recorded interest in the properties at the time of the tax sale, the Commissioner should have timely released the excess funds to M7. DLT and Design Acquisition appealed, arguing that Design Acquisition had first priority to the excess funds as the redeeming creditor. The Court of Appeals overruled the controlling case law in this matter, applied OCGA 48-4-5 (a) to the question of excess funds and determined that Design Acquisition had no claim to the excess funds because it was not a lienholder at the time of the tax sale. The Georgia Supreme Court granted certiorari to consider whether a redeeming creditor after a tax sale has a first priority claim on excess tax-sale funds. Though the Court disagreed with the rationale employed by the Court of Appeals, the Supreme Court nevertheless affirmed its decision. View "DLT List, LLC v. M7VEN Supportive Housing & Development Group" on Justia Law

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After the Merle and Lesia Long and their business Water Park Properties, LLC dismissed their most recent lawsuit against the City of Helen with prejudice, the trial court awarded more than $17,000 to the City for attorney fees and litigation expenses pursuant to OCGA 9-15-14. The Longs and Water Park appealed, contending that the award of fees and expenses was improper because those fees and expenses actually were borne by the City’s insurer, not the City itself. Finding no reversible error, the Supreme Court affirmed the award. View "Long v. City of Helen" on Justia Law

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Oscar Blalock sought access to records held by the City of Lovejoy under the Georgia Open Records Act. After failing to receive those records, or any response from the City, Blalock filed a mandamus action seeking to compel compliance with the Act. The trial court dismissed Blalock’s petition, finding that mandamus was unavailable because the Act’s civil penalties provision affords Blalock a remedy “as complete and convenient as mandamus.” Although the Supreme Court did not agree with the trial court’s conclusion regarding the remedial adequacy of civil penalties, that did not save Blalock’s claim: because the Act provided its own cause of action for enforcement in OCGA 50-18-73 (a), that provision was plainly a “complete and convenient” alternative to mandamus. View "Blalock v. Cartwright" on Justia Law