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Released Opinions

September 12, 2011

The Supreme Court of Georgia released opinions in 27 cases this morning, four of which are civil. Although the Court gave notice on Friday that it would issue a decision in, LLC et al. v. Walker ( S11G0417), it removed that case from its decision list this morning and is apparently considering the case further. A brief summary of each case and the opinion issued by the Court is below.

S11A0760. City of Statesboro et al. v. Dabbs et al.S11X0761. Dabbs et al. v. City of Statesboro et al.

This case involves a dispute over whether the City of Statesboro followed the Open Meetings Act requirements of Georgia law. The city manager for Statesboro admitted that the city conducted special meetings on April 1 and April 19, 2010 about its fiscal year 2011 budget without properly posting a notice or agenda. In spite of the lack of notice, the city conducted official business at the special meetings. After plaintiffs sued, the trial court found the city in violation, awarded attorneys’ fees to plaintiffs, and enjoined the city from conducting any further meetings in violation of the Open Meetings Act.

The City appealed, claiming the trial court erred in awarding attorneys’ fees and also erred in providing injunctive relief without a proper request from plaintiffs. Plaintiffs appealed, claiming the trial court erred by not awarding the full amount of attorneys’ fees sought. The Supreme Court has jurisdiction over the appeal because it involves a grant of injunctive relief.

The City filed its principal brief and plaintiffs responded. Plaintiffs also filed their cross-appeal principal brief and the City responded.

The Supreme Court heard oral argument on the case on May 16, 2011.

On September 12, 2011, the Supreme Court unanimously affirmed the decision of the trial court. Writing for the Court, Justice Melton explained that the Open Records Act allows the award of attorneys’ fees, even without ante litem notice, and that no evidence exists that the trial court abused its discretion regarding the amount of the award.

S11A1102. Wilcox et al. v. Fenn et al.

This case challenges the constitutionality of a state law shielding local government employees from personal liability while on official business. The case began with a car wreck, caused by a police vehicle colliding with Wilcox’s car on I-16. Wilcox was severely injured and his son was killed. Wilcox sued the police officers in their individual capacities and the trial court granted the officers’ motion for summary judgment, finding they were protected by official immunity. The trial court also denied Wilcox’s motion for partial summary judgment, finding that O.C.G.A. § 36-92-3 was constitutional.

Wilcox appealed and the Supreme Court has jurisdiction due to the constitutional issue. Wilcox argued in his principal brief that the section is unconstitutional because it is not part of the State Tort Claims Act. The officers responded, arguing that the General Assembly had authority to provide immunity for local government officials and exercised that authority in O.C.G.A. § 36-92-3. Wilcox filed a reply brief.

The case was heard by the Court on June 13, 2011.

On September 12, 2011, the Supreme Court unanimously affirmed the decision of the trial court. Writing for the Court, Justice Melton found the statute was constitutional, explaining that the legislature had constitutional authority to enact immunity for local government officials.

S11A1252 Grady v. Unified Government of Athens-Clarke County

This case involves a challenge to a noise ordinance in Athens, Georgia. Grady is a student at the University of Georgia and held a party celebrating his acceptance into law school. At 3:30 am, an Athens police officer issued a citation because she could hear the music clearly more than 100 feet away from Grady’s apartment. The general fine is $144 for a first offense, but the municipal court fined Grady $350. He petitioned for review by the Superior Court, which upheld the municipal court ruling, and Grady appealed to the Supreme Court of Georgia.

Grady argues in his brief that the ordinance is unconstitutional as a violation of free speech. The ordinance limits speech that is not harmful and there were no complaints about the music, according to Grady. “The prohibitions of the Ordinance extend far beyond speech that causes a disruption of the community or invasion of the rights of others, and encompass speech which may be completely welcome and completely in character with the community.”

Athens argues that the Superior Court properly dismissed Grady’s petition because he failed to prove legal error. The municipal court found the ordinance was narrowly tailored and has existed in some form since 1918, according to Athens.

Both sides apparently dispute the volume level in downtown Athens at 3:30 am, with Grady claiming it is “not a sheep meadow,” while the city government describes it as a “ghost town.”

Grady filed a supplemental brief, and Athens responded. The Association of County Commissioners of Georgia also filed an amicus brief in support of Athens-Clarke County.

The Court heard oral argument on the case on July 12, 2011.

On September 12, 2011, the Supreme Court unanimously affirmed the decision of the trial court. Writing for the Court, Justice Nahmias explained that the ordinance regulates constitutionally protected speech, but does not discriminate based on content. However, Grady only invoked the Georgia free speech clause and the Court next reviewed the history of the differences in the First Amendment and the Georgia free speech provision, expressing some uncertainty why the Georgia free speech clause provides additional protections. The Court concluded, regardless of whether greater protections exist, the Athens noise ordinance was appropriate and was the “least restrictive means of protecting the comfort and repose of citizens in downtown Athens.”

S11G0660. O’Brien v. Bruscato

This case has criminal law origins, but involves questions regarding medical malpractice. Victor Bruscato was under the care of a psychiatrist when he killed his mother in 2002. Victor’s father brought a medical malpractice action against the psychiatrist as guardian for his son, claiming that the decision to suddenly stop Victor’s medication for a period of six weeks was a violation of the standard of care. The trial court granted summary judgment to the psychiatrist, finding that the malpractice claims were barred by the “impact rule” or on public policy grounds. Bruscato appealed.

The Court of Appeals splintered in its 4-3 decision reversing the trial court’s decision (Ellington, Miller, Barnes, Phipps concurring; Johnson concurring in part; Doyle concurring specially in part and dissenting in part; Andrews dissenting). The majority found the medal malpractice statute’s provision for “any injury” is not limited by the “impact rule.” The majority also found that the public policy concerns of a defendant profiting from his crime do not apply because Victor has not been convicted of murder even though he has been found incompetent to stand trial. Judge Doyle concurred with the majority’s decision on the “impact rule,” but dissented on the public policy decision of the majority. Judge Andrews dissented from both holdings of the majority, saying this is the first decision in which a resurgence of psychosis amounts to a physical injury sufficient for Victor to claim emotional distress.

Dr. O’Brien petitioned for a writ of certiorari, and Bruscato responded.

On April 26, 2011, the Supreme Court granted the petition for certiorari in a 4-3 vote (Benham, Thompson, and Hines dissenting) to consider the following issue:

  1. Whether the Court of Appeals properly ruled that Bruscato’s claim for damages is not barred by Georgia public policy?

Dr. O’Brien filed his principal brief, and Bruscato responded. Dr. O’Brien filed asupplemental brief and Bruscato responded to that brief as well.

The case was heard on July 18, 2011.

On September 12, 2011, the Supreme Court unanimously affirmed the Court of Appeals decision. Writing for the Court, Justice Melton explained that the public policy issues were correctly examined and determined by the Court of Appeals. There is a question of fact remaining whether Bruscato knowingly killed his mother, and this is key to determining whether he is profiting off a knowing act.


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