GRAVITT et al.
Reconsideration denied July 29, 2015 -- Cert. applied for.
[Copyrighted Material Omitted]
Open Meetings Act. Forsyth Superior Court. Before Judge Adamson, Senior Judge.
Miles Patterson Hansford Tallant, Kevin J. Tallant, Lauren C. Giles, for appellants.
Samuel S. Olens, Attorney General, Dennis R. Dunn, Deputy Attorney General, Russell D. Willard, Senior Assistant Attorney General, Jennifer Colangelo, Assistant Attorney General, for appellee.
ANDREWS, Presiding Judge. Miller, J., concurs specially. Branch, J., concurs in Divisions 2, 4, 5 and 6, and in the judgment.
Andrews, Presiding Judge.
Samuel S. Olens, Attorney General of the State of Georgia, brought a civil action in the Forsyth County Superior Court pursuant to OCGA § 50-14-5 of the Open Meetings Act (OMA) (OCGA § 50-14-1 et seq.) seeking to enforce the OMA. The action against the City of Cumming and the City's mayor, H. Ford Gravitt, individually, alleged negligent violations of the OMA by refusal to allow a member of the public to attend and videotape a meeting of the City Council, and sought the imposition of civil penalties and the award of attorney fees pursuant to the OMA. The trial court: (1) denied the defendants' motion to dismiss the action on the basis of sovereign and official immunity, and (2) granted summary judgment in favor of the attorney general, ruling that the defendants violated the OMA, and imposing civil penalties and attorney fees against the defendants pursuant to the OMA. The City and Gravitt appeal. For the following reasons, we affirm in part, reverse in part, and remand.
On April 17, 2012, Mayor Gravitt convened a scheduled meeting of the Cumming City Council, and a member of the public, Nydia Tisdale, was in attendance at the meeting with a camera she was using to videotape the meeting. After the meeting was convened, it is undisputed that Gravitt announced that videotaping the meeting was prohibited, and, at Gravitt's direction, the City's chief of police removed Tisdale's camera, and the tripod on which it was mounted, from the meeting area and prevented Tisdale from videotaping the meeting with the camera. According to Gravitt, he did not order that Tisdale be removed from the meeting, and she was not removed from the meeting. A City police officer testified that, at the mayor's direction, the camera and tripod were moved to the rear of the meeting area, at which point Tisdale left the meeting and appeared to make a cell phone call, and that Tisdale then returned to the meeting and started using a different handheld video camera to record the meeting. The officer said that, without further direction from Gravitt, he approached Tisdale and reminded her that the mayor had asked her not to record the meeting, but that he took no action to stop Tisdale from recording the meeting with the second camera, and that she appeared to continue recording. The City's chief of police stated that Tisdale initially resisted the removal of her video camera and tripod by shouting at the mayor, and that, because of
this resistance, he asked her to step outside the meeting so he could explain the removal to her without disturbing the meeting. According to the chief of police, when he moved Tisdale's camera to the rear of the room, Tisdale ceased her resistance; that he no longer felt it was necessary at that point to explain the removal to Tisdale outside the meeting; that no one physically touched Tisdale; and that neither he nor anyone else required that Tisdale leave the meeting. Tisdale provided an affidavit in which she testified that Mayor Gravitt ignored her protests that his order to remove her video camera violated the OMA; that the chief of police and his deputy " then forcibly and physically removed both me and my video camera from the auditorium's meeting area" while Gravitt watched and made no attempt to stop the officers. Tisdale further stated in her affidavit:
[A]fter being forcibly removed from the meeting, I was able to return and observed the remainder of the meeting ... [but while doing so] I attempted to photograph and take short film clips (without sound) of the meeting using [another] camera. I did so from the front row of the meeting auditorium and in direct view of Mayor Gravitt as he continued to conduct the meeting. Yet, I was ordered to stop this recording before the meeting ended by [a City police officer]. Mayor Gravitt observed this order, but did not insist that I be permitted to continue recording the meeting on my camera.
It is undisputed that the OMA provided for the City Council meeting to be " open to the public" ; that " [t]he public at all times shall be afforded access to meetings declared open to the public" ; and that " [v]isual and sound recording during open meetings shall be permitted." OCGA § 50-14-1 (a), (b), (c). The OMA further provided pursuant to OCGA § 50-14-5 (a):
The superior courts of this state shall have jurisdiction to enforce compliance with the provisions of this chapter ... [and that,] [i]n addition to any action that may be brought by any person, firm, corporation, or other entity, the Attorney General shall have authority to bring enforcement actions, either civil or criminal, in his or her discretion as may be appropriate to enforce compliance with this chapter.
Pursuant to this authority, Attorney General Olens brought the present civil enforcement action against the City of Cumming and Mayor Gravitt, individually, alleging that the defendants violated the OMA by prohibiting Tisdale from videotaping the City Council meeting and by removing Tisdale from the meeting. The enforcement action sought the imposition of civil penalties for negligent violation of the terms of the OMA (OCGA § 50-14-6) as well as the award of attorney fees on the basis that the actions taken in violation of the OMA were without substantial justification. OCGA § 50-14-5 (b).
1. We find no merit to the City's contention that it was entitled to assert sovereign immunity to bar the OMA enforcement action brought by the attorney general on behalf of the State of Georgia.
" Sovereign immunity applies to municipalities, unless the General Assembly waives it by law. Ga. Const. of 1983, Art. IX, Sec. II, Par. IX." Godfrey v. Ga. Interlocal Risk Mgmt. Agency, 290 Ga. 211, 214 (719 S.E.2d 412) (2011); City of Atlanta v. Mitcham, 296 Ga. 576, 577 (769 S.E.2d 320) (2015); CSX Transp. v. City of Garden City, 277 Ga. 248, 249 (588 S.E.2d 688) (2003) (" [T]he legislature has the authority to enact a law that specifically waives a municipality's sovereign immunity." ). For example, in the context of tort liability, OCGA § 36-33-1 (a) provides a narrow waiver of a municipality's sovereign immunity by the purchase of liability insurance. CSX Transp., 277 Ga. at 249-250; Godfrey, 290 Ga. at 214. Moreover, OCGA § 36-33-1 (b) also provides a limited waiver of sovereign immunity as follows: " Municipal corporations shall not be liable for failure to perform or for errors in performing their legislative or judicial powers. For neglect to perform or
improper or unskillful performance of their ministerial duties, they shall be liable." As currently set forth in OCGA § 36-33-1 (b), " [t]his provision has for more than a century been interpreted to mean that municipal corporations are immune from liability for acts taken in performance of a governmental function but may be liable for the negligent performance of their ministerial duties." Mitcham, 296 Ga. at 577-578. Because the acts at issue in this case were taken in the course of conducting a City Council meeting, they were acts of a public nature taken in the performance of a governmental function, and, in the absence of a specific waiver of immunity, the City would ordinarily be entitled to assert the bar of sovereign immunity. Nevertheless, we find that, because the City derives its sovereign immunity from the State, the City had no immunity that it could assert to bar an OMA enforcement action brought by the State.
As a municipal corporation, the City of Cumming " is a political division of the State, and is a public corporation, having for its object the administration of a portion of the power of government delegated to it [by the State] for such purpose." Spence v. Rowell, 213 Ga. 145, 148 (97 S.E.2d 350) (1957). A municipality " is held to be a portion of the sovereign power of the State" ( Penick v. Foster, 129 Ga. 217, 221 (58 S.E. 773) (1907)), and " in its public character acts as an agency of the State" while exercising governmental functions within its jurisdiction. Hiers v. City of Barwick, 262 Ga. 129, 131 (414 S.E.2d 647) (1992) (citation and punctuation omitted), abrogation on other grounds recognized by City of Thomaston v. Bridges, 264 Ga. 4 (439 S.E.2d 906) (1994); Mitcham, 296 Ga. at 579 (while performing governmental duties, municipal corporation exercises powers pertaining to its " delegated sovereignty." ). Accordingly, " [t]he [sovereign] immunity of a municipality is derivative from the State," and may be asserted when the municipality " undertake[s] to perform for the State duties which the State itself might perform, but which have been delegated to the municipality." Hiers, 262 Ga. at 131. Sovereign immunity as applied to a municipality pursuant to the Georgia Constitution (Ga. Const. of 1983, Art. IX, Sec. II, Par. IX) is not direct or inherent in the municipality, but derives from the State's delegated sovereignty. Hiers, 262 Ga. at 131; Mitcham, 296 Ga. at 579. It follows that " it would be illogical to allow a municipality sued by the state to assert its [sovereign] immunity against the very source of that immunity." 18 McQuillin, The Law of Municipal Corporations, § 53:71 (3d ed.); State v. City of Bowling Green, 38 Ohio St.2d 281, 313 N.E.2d 409, 411-412 (Ohio 1974) (because municipal immunity derives from the state, and arises when performing governmental function as agent for the state, this prevents municipality from asserting immunity when sued by the state); Bd. of Ed. of Prince George's County v. Town of Riverdale, 320 Md. 384, 578 A.2d 207, 210 (Md.App. 1990) (same). In the present action, the attorney general, acting on behalf of the State of Georgia, brought a civil action against the City of Cumming to enforce the OMA. We conclude that the City was not entitled to claim that the sovereign immunity it derived from the State barred the State's OMA enforcement action. This is not a judicially created waiver of the City's sovereign ...