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Released Opinions

October 4, 2010

The Supreme Court of Georgia released opinions in 24 cases this morning, four of which are civil.  A brief summary of each civil case is below along with a summary of the opinion from the Court.

S09G1946. ULTRA TELECOM, INC., et al. v. STATE of GEORGIAS09G1948. ALLSTAR, INC., et al. v. STATE of GEORGIA

This case stems from the attempted condemnation of a number of different gaming machines by the State, after allegations that the gaming machines that used money as payouts.  After a trial, the trial court issued a 76-page order, finding that four of the eleven categories of machines were gambling devices, but that seven of the eleven categories of machines were not.

The Court of Appeals (Ellington, Andrews, and Adams), in a unanimous decision, partially affirmed and partially reversed the trial court, finding that all of the machines were gambling devices.  The opinion explains how Georgia law prohibits gambling machines, but not those which are for bona fide amusement purposes only.  Part of the determination of whether a machine is for gambling or amusement has to do with the payouts dispensed by the machine, including a five-dollar maximum.  After a detailed discussion of the statutes, the Court of Appeals found that the seven types of machines the trial court found were not gambling devices were just that, and upheld the trial court’s determination that the four categories were gambling devices as well.

The Supreme Court unanimously granted certiorari to review the following issue:

  1. Whether the machines at issue meet the definition in OCGA § 16-12-35 for machines designed for bona fide amusement purposes.

Appellants argued that the machines in question meet the definition of a lawful coin operated amusement games.  In response, the Cobb County District Attorney responded that the machines do not meet the appropriate definition and were properly seized.  Appellants filed asupplemental brief to discuss the standard of review and argue about the “safe harbor” definition.

The Supreme Court heard oral argument on June 7, 2010.

On October 4, 2010, the Supreme Court reversed the trial court in a 4-3 decision.  Writing for the majority, Chief Justice Hunstein found that the definition of “single play” from the Court of Appeals was incorrect, in light of legislative action to define the term.  The majority found the trial court’s definition was the correct definition of the term and consistent with the legislature’s addition of a definition.  The majority also addressed the level of skill required by the games, and found that the machines met the definition of amusement purposes, making the machines not subject to condemnation.

Writing in dissent, Justice Melton, joined by Justices Hines and Nahmias, would have found the machines were gambling devices because they allowed for accumulated point totals.


This case is an election contest stemming from the election for District 6 of the Board of Commissioners for the City of Griffin.  Rodney McCord lost the runoff election on December 1, 2009 by 25 votes and subsequently challenged the election.  McCord called 32 voters to the stand, with at least 25 testifying that they did not have one of the “excuses” listed in the Georgia statute related to voting absentee ballots by mail, and yet had voted absentee by mail.  The County defended on the basis of the “no excuse” absentee voting created by O.C.G.A. 21-2-380(b) in 2005.  The trial court invalidated the election and ordered a new runoff election be held on February 16, 2010.  The County Board of Elections and the winning candidate appealed to the Georgia Supreme Court.

The Board of Elections and winning candidate argue that the trial court misinterpreted the absentee ballot statute by finding that an excuse was required to vote absentee by mail.  McCord responded that the trial court correctly interpreted the absentee voting statute, because a voter still must have an excuse, but does not have to state it.

This case is being decided without oral argument.

On October 4, 2010, the Supreme Court unanimously reversed the trial court.  Writing for the unanimous Court, Justice Nahmias explained the history of absentee voting by mail in Georgia, then walked through the necessary canons of statutory construction to interpret the absentee ballot statute.  The Court found the list of reasons to vote an absentee ballot in subsection (a) was an older provision that was “eroded to nothingness” by subsequent legislative enactments, and thus that no voter who is voting an absentee ballot by mail is required to give any reason for requesting that ballot.

S10A1113. GASSES v. CITY of RIVERDALE et al.

This is an appeal of a Clayton County trial court ruling regarding who should cut the grass of a particular piece of property.  The City of Riverdale adopted an ordinance requiring individuals to maintain their property and limiting grass and weeds in a right of way to less than six inches.  The City informed the Gasses that they would have to cut the grass on the right of way on or adjacent to their 10 acres.  Mr. Gasses attempted to cut the grass, but was injured when his mower rolled over.  Mrs. Gasses was then cited for failure to maintain the right of way.

The Gasses challenged the fine and the constitutionality of the ordinance, and the trial court found the ordinance was constitutional.

The Gasses’ brief continues their argument that the ordinance is an unconstitutional exercise of Riverdale’s police powers, and violates both the due process and equal protection rights of the Gasses.  The City responded that the ordinance is reasonable, does not impose involuntary servitude on anyone, and does not restrict the due process or equal protection rights of the Gasses.

The Supreme Court heard oral argument on the case on June 7, 2010.  After oral argument the City and the Gasses filed letter briefs addressing a request from Chief Justice Hunstein.

On October 4, 2010, the Supreme Court unanimously affirmed the trial court’s decision upholding the ordinance.  Writing for the Court, Justice Benham explained that rational basis review applied, and there was no violation of due process or equal protection from the statute requiring that grass be cut.


This case began as a challenge to SB 31, legislation from 2009 that allowed Georgia Power to change the way it bills customers for its new nuclear plant construction, but has become a question of whether the trial court had authority to resolve the questions before it without a hearing along with the substantive claims.  After a number of filings, the trial court granted a motion for summary judgment for the state, finding that the Fulton County Taxpayers Foundation lacked standing to pursue the claims they included in their complaint.  The Foundation appealed.

The Fulton County Taxpayers Foundation argues in its brief that the trial court improperly granted relief to the state without holding a hearing, as required by the Uniform Superior Court Rules, and then argue their substantive objections to SB 31.  Intervenor Georgia Power responds that the Foundation did have notice and an opportunity to be heard, but still lacks standing.  Georgia Power then briefly addresses the substantive claims from the Foundation.  TheState of Georgia similarly responds that the Foundation lacks standing to contest the Public Service Commission’s decision to certify the expansion of Plant Vogtle, and that the claims raised by the Foundation are frivolous.  The Foundation filed a reply brief reasserting its positions.

This case is being decided without oral argument.

On October 4, 2010, the Supreme Court unanimously affirmed the trial court decision.  Writing for the Court, Presiding Justice Carley found that a hearing was held allowing for argument on the motion for summary judgment.  The Court further found that the Foundation had an available administrative remedy of intervention at the PSC proceeding and therefore lacked standing to challenge the actions of the PSC in the trial court.  The Court declined to rule on the constitutional questions related to SB 31 because those had not been ruled on by the trial court.


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