We also affirm the trial court's order rejecting Williams' request to conduct an in camera review of certain e-mails between various commissioners and the county attorney However, we further conclude that the trial court erred in considering the affidavits attached to the commissioners' answer to Williams' third amended complaint in reviewing the commissioners' motion for judgment on the pleadings, without properly converting the motion to one for summary judgment Therefore, we vacate that portion of the trial court's order granting the motion for judgment on the pleadings and remand the case to the trial court for further proceedings consistent with this opinion.
Judgment affirmed in part, vacated in part, and case remanded. The case Williams v. DeKalb County (Williams II) will be appealed to Georgia Supreme Court for the 2nd time.
Williams v. DeKalb County S19A1163 (March 13, 2020) stated that “a citizen-taxpayer has standing in equity to restrain public officers from performing acts which the law does not authorize. However, absent expenditures of public revenue or performance of a duty owed to the public [,] a citizen-taxpayer has no standing in equity unless [he or] she has special damages not shared by the general public.”
OCGA § 9-6-24 provides: "Where the question is one of public right and the object is to procure the enforcement of a public duty, no legal or special interest need be shown, but it shall be sufficient that a plaintiff is interested in having the laws executed and the duty in question enforced." Although this Code section is located in the article pertaining to mandamus, the principles in this section are not confined in their application to petitions for mandamus relief. See, e.g., SJN Props., LLC v. Fulton County Bd. of Assessors, 296 Ga. 793, 799 n.7 (770 SE2d 832) (2015) ("We note that we have previously held that OCGA § 9-6-24 and its predecessor statute confer standing to seek enforcement of public duties not only via mandamus but also by injunction.").
Why this case is important? Because many suits have not been able to successfully maneuver all the different criteria and conditions for a citizen to hold their elected officials accountable. Many attorneys lack knowledge in this area in most instances. The court addresses the nuance of government immunity and how citizens can petition their government in a lawsuit. Under Injunctive and Mandamus Reliefs it shall be sufficient that a citizen is interested in having the laws executed and the duty in question enforced. Taxpayer's standing to seek to enforce a public duty by way of a viable cause of action against a public officer in his or her individual capacity, citizens and taxpayers of counties and municipalities have such interest as will authorize them to maintain actions to enjoin the unlawful disbursement of the public funds of such counties or municipalities." See OCGA 9-5-1, OCGA 9-6-20, OCGA 9-6-24. In declaratory relief OCGA 9-4-2, OCGA 9-4-3. the failure of the petition to state a cause of action for declaratory relief shall not affect the right of the party to any other relief, legal or equitable, to which he may be entitled.
Williams v. Dekalb Cnty. S19A1163 (Ga. Mar. 13, 2020)
Juhan v. City of Lawrenceville, 251 Ga. 369, 306 S.E.2d 251 (Ga. 1983)
Williams v. Dekalb Cnty. S19A1163 (Ga. Mar. 13, 2020)
See, e.g., Lowrey v. McDuffie, 269 Ga. 202, 204 (1) (496 SE2d 727) (1998) (In a suit against the state revenue commissioner and a county tax commissioner, we held that "a taxpayer has standing to contest the legality of the expenditure of public funds of a municipality[.]"); Savage v. City of Atlanta, 242 Ga. 671, 671-672 (251 SE2d 268) (1978) (The plaintiff, as a taxpayer of the City of Atlanta, had standing to request that the City's commissioner of finance be enjoined from paying out public funds under the authority of certain ordinances.); Aiken v. Armistead, 186 Ga. 368, 380 (1) (198 SE2d) (1938) ("This court has many times held that citizens and taxpayers of counties and municipalities have such interest as will authorize them to maintain actions to enjoin the unlawful disbursement of the public funds of such counties or municipalities." (citations omitted)). We note that, to the extent that some of our taxpayer standing cases allowed equitable relief against state officials, they predate the constitutionalization of sovereign immunity and do not address, specifically, who may be sued and in what capacity.
See Lathrop v. Deal , 301 Ga. at 434 (III) (C) (“[A]s we have explained at some length, the doctrine of sovereign immunity usually poses no bar to suits in which state officers are sued in their individual capacities for official acts that are alleged to be unconstitutional.” (emphasis supplied)); see also Peacock v. Georgia Municipal Assn., Inc., 247 Ga. 740, 743 (3) (279 SE2d 434) (1981) (“In a suit to enjoin the expenditure of public funds, the entity or official appropriating the funds is an indispensable party.”)
A suit may be maintained against officers or agents personally, because, while claiming to act officially, they have committed or they threaten to commit wrong or injury to the person or property of plaintiff, either without right and authority or contrary to the statute under which they purport to act.”
The Injunction relief is sought under O.C.G.A. § 9-5-1. See Peacock v. Ga. Municipal Assn, 247 Ga. 740, 279 S.E.2d 434 (Ga. 1981) (constitutional attack); Lowry v. McDuffie, 269
Ga. 202, 204 (1), 496 S.E.2d 727 (1998)(constitutional attack); Savage v. City of Atlanta, 242 Ga. 671, 671-672, 251 S.E.2d 268 (1978) (constitutional attack); King v. Herron, 241 Ga. 5, 243 S.E.2d 36 (Ga. 1978) (ultra-vires without authority); and League of Women Voters v. Atlanta, 245 Ga. 301, 264 S.E.2d 859 (Ga. 1980) ultra vires beyond the scope of authority).
a citizen-taxpayer has standing in equity to restrain public officers from performing acts which the law does not authorize. However, absent expenditures of public revenue or performance of a duty owed to the public[,] a citizen-taxpayer has no standing in equity unless [he or] she has special damages not shared by the general public. (i) Citizen standing. Williams, as a citizen of DeKalb County, generally has standing pursuant to OCGA § 9-6- 24 to bring a claim seeking to require a public official to perform the public duties that the General Assembly has conferred upon that official. See Moseley *16 v. Sentence Review Panel, 280 Ga. 646 16 12 (1) (631 SE2d 704
(ii) Taxpayer standing. Under Georgia law, Williams’ status as a taxpayer generally affords him standing to seek to enjoin the unlawful expenditure of public funds. But Williams’ taxpayer status is not dispositive of whether he has pled a proper claim for injunctive relief as this case now stands. Williams must also demonstrate that the injunctive relief he seeks from the parties he has sued is capable of being provided by those parties and would actually prevent the act he seeks to prevent. After all, Williams is not simply suing the members of the county governing authority in their individual capacities, he is suing them for specific, allegedly unconstitutional acts done in their official capacities . See Lathrop v. Deal , 301 Ga. 408, 434 (III) (C), 801 S.E.2d 867 (2017). ("[A]s we have explained at some length, the doctrine of sovereign immunity usually poses no bar to suits in which state officers are sued in their individual capacities for official acts that are alleged to be unconstitutional."). And, given that the purpose of an injunction is to restrain "a threatened ... act of a private individual ... which is illegal or contrary to equity and good conscience and for which no adequate remedy is provided at law[,]" OCGA § 9-5-1, Williams must show that the person he has sued is the one committing the act at issue, which, in this case, is the allegedly unlawful expenditure of public funds for a salary increase. See Lathrop , 301 Ga. at 434 (III) (C), 801 S.E.2d 867 ("[A]s we have explained at some length, the doctrine of sovereign immunity usually poses no bar to suits in which state officers are sued in their individual capacities for official acts that are alleged to be unconstitutional." (emphasis supplied)); see also Peacock v. Georgia Municipal Assn., Inc ., 247 Ga. 740, 743 (3), 279 S.E.2d 434 (1981) ("In a suit to enjoin the expenditure of public funds, the entity or official appropriating the funds is an indispensable party.").
See, e.g., Lowry v. McDuffie , 269 Ga. 202, 204 (1), 496 S.E.2d 727 (1998) (In a suit against the state revenue commissioner and a county tax commissioner, we held that "a taxpayer has standing to contest the legality of the expenditure of public funds of a municipality[.]"); Savage v. City of Atlanta , 242 Ga. 671, 671-672, 251 S.E.2d 268 (1978) (The plaintiff, as a taxpayer of the City of Atlanta, had standing to request that the City’s commissioner of finance be enjoined from paying out public funds under the authority of certain ordinances.); Aiken v. Armistead , 186 Ga. 368, 380 (1), 198 S.E. 237 (1938) ("This court has many times held that citizens and taxpayers of counties and municipalities have such interest as will authorize them to maintain actions to enjoin the unlawful disbursement of the public funds of such counties or municipalities." (citations omitted)). We note that, to the extent that some of our taxpayer standing cases allowed equitable relief against state officials, they predate the constitutionalization of sovereign immunity and do not address, specifically, who may be sued and in what capacity. See Lathrop v. Deal , 301 Ga. 408, 425-444 (III) 801 S.E.2d 867 (2017). We recognize that our case law has been imprecise in setting forth the parameters of taxpayer standing as it has evolved over the years. But to the extent that these cases simply confirm a taxpayer’s standing to seek to enforce a public duty by way of a viable cause of action against a public officer in his or her individual capacity, they remain good law. See SJN Props., 296 Ga. at 799 n.7, 770 S.E.2d 832 ("Insofar as these and similar cases permitted the prosecution of injunction actions against state officials, they now stand abrogated by [Georgia Dept. of Natural Resources v. Sustainable Coast, 294 Ga. 593, 603 (2), 755 S.E.2d 184 (2014) ]; however, to the extent these cases simply confirmed a taxpayer’s standing to seek to enforce a public duty by way of some viable cause of action, they remain good law."); Sustainable Coast , 294 Ga. at 603 (2), 755 S.E.2d 184 ("Our decision today does not mean that citizens aggrieved by the unlawful conduct of public officers are without recourse. It means only that they must seek relief against such officers in their individual capacities.").
(1) All cases in which the constitutionality of a law,
the ordinance, or constitutional provision has been drawn in question; and (2) All cases of election contest.
The Injunction relief is sought under O.C.G.A. §
9-5-1. See Peacock v. Ga. Municipal Assn, 247 Ga. 740, 279 S.E.2d 434
(Ga. 1981) (constitutional attack); Lowry v. McDuffie, 269 Ga. 202, 204
(1), 496 S.E.2d 727 (1998)(constitutional attack); Savage v. City of
Atlanta, 242 Ga. 671, 671-672, 251 S.E.2d 268 (1978) (constitutional
attack); King v. Herron, 241 Ga. 5, 243 S.E.2d 36 (Ga. 1978) (ultra-vires
without authority); City Council of Augusta v. Mangelly, 243 Ga. 358, 254 S.E.2d 315 (Ga. 1979) (constitutional
attack of statute local option sales tax); Shadix v. Carroll County, 274
Ga. 560, 554
S.E.2d 465 (Ga. 2001) (SPLOST statute interpretation ambiguous / injunction) and League of Women Voters v. Atlanta, 245 Ga. 301, 264 S.E.2d 859 (Ga. 1980)
ultra vires beyond the scope of authority). These
cases enjoined government officials where there were no declaratory or
mandamus, personal rights, harm, injury, or damages made against Defendants. In
the League of Women
Voters v. Atlanta, 245
Ga. 301the Supreme Court has said:
We hold that
the plaintiffs have standing to bring this suit. In this state, it is
established that a citizen and taxpayer of a municipality, without the
necessity for showing any special injury, has standing to sue to prevent
officials of the municipal corporation from taking actions or performing
acts which they have no authority to do
Chernowski v. State 330
Ga. App. 702 (Ga. Ct. App. 2015)
Chernowski failed to raise this issue below and may not raise it for the first time on appeal.
See Bynum v. State, 315 Ga.App. at 395–96(3), 726 S.E.2d 428 (“Absent an abuse of discretion, the decision of the trial court must be affirmed. Significantly, there is no ruling of the trial court to review for abuse of discretion, as [appellant]
failed to raise this issue below.
As a result, he may not raise this issue for the first time on appeal.”); Butler v. State, 277 Ga. App. at 64(5),
625 S.E.2d 458 (same).
Wilson v. State 302 Ga. App. 433 (Ga. Ct. App. 2010)
the trial court is the final arbiter of all factual disputes raised by the evidence. If evidence supports the trial court's findings, we must affirm.
(Punctuation and footnote omitted.) Hubbard v. State, 301
Ga. App. 388 ( 687 SE2d 589) (2009). Wilson's claim is
procedurally barred
because he failed
to raise these claims before the trial court. If "the issue of trial
counsel's effectiveness has been raised
. . . any claims of
ineffective assistance by trial counsel not raised at that time are
waived." (Punctuation omitted.)
Smith v. State, 282
Ga. App. 339, 344 (4) ( 638 SE2d 791) (2006).
11 The State claims
that Wilson did not raise any grounds of ineffective assistance of counsel
before the trial court, and this Court should, therefore, decline to review
this enumeration of error. However,
Wilson's pro se motion to withdraw
his guilty plea raised the issue of ineffective
assistance of counsel, which motion was incorporated by appellate counsel into
her motion to withdraw guilty plea. Accordingly, we find that Wilson raised the issue of
ineffective assistance of counsel before the trial court
Narey v. Dean, 32 F.3d 1521 11th Cir. 1994)
It is true that "appellate courts generally will not
consider an issue or theory that was not raised
in the district court." FDIC
v. Verex Assurance, Inc., 3 F.3d 391, 395 (11th Cir. 1993). At the least, the
proper resolution of this issue is now beyond any doubt. We therefore choose to
exercise our discretion to consider this issue. See United States v. Southern Fabricating Co., 764 F.2d 780, 781 (11th Cir. 1985) (observing that "[t]he
decision whether to consider" an argument raised for the first time on appeal "is left to the
appellate court's discretion").
Hall v. Georgia No. 15-13414 April 29, 2016
"[T]he law is by now well settled
in this Circuit that a legal claim or argument that has not been briefed before
the court is deemed abandoned and its merits will not be addressed."
Access Now, Inc. v. Sw. Airlines Co., 385F.3d
1324, 1330 (11th Cir. 2004). Additionally,
arguments raised for the first time on appeal, that were not presented in the
district court, are deemed waived. Narey v. Dean, 32 F.3d 1521, 1526 (11th
Cir. 1994). However, we
have identified five exceptions to the general rule that we will not consider
an argument made for the first time on appeal. Id. at 1526-27. These
exceptions include: (1)
whether the issue involves a pure question of law, and refusal to consider it
would result in a miscarriage of justice; (2) whether the appellant raises an objection to an order
that he had no opportunity to raise at the district court level; (3) whether the interest of
substantial justice is at stake;(4) whether the proper resolution is beyond any doubt; and (5) where the issue presents significant
questions of general impact or of great public concern. Id.
To the extent that Hall seeks to raise a claim of error, pursuant to Fed. R. Civ. P. 60(b)(3) for "fraud on the court," such a claim is waived by Hall's failure to raise this issue before the district court. See Narey, 32 F.3d at
1526-27. Hall does not allege that any of the
exceptions to this rule apply, and none are evident. See id.
Additionally,
because Hall fails to argue
that the reasons for the district court's dismissal of his claims - lack of subject-matter
jurisdiction and failure
to state a claim upon which relief could be granted - were erroneous, any
such arguments are abandoned on appeal. See Access Now, 385 F.3d at
2. DeKalb County BOC Compensation Allegations
3. DeKalb County BOC Compensation Supreme Court Appeal
4. Case Timeline Williams v. DeKalb County et al. S19A1163
5. DeKalb County BOC Compensation Brief filed before the Supreme Court Williams v. DeKalb County S19A1163
6. DeKalb County BOC Compensation Oral Argument video before the Supreme Court Williams v. DeKalb County S19A1163
7. Press Release Supreme Court Williams v. DeKalb County S19A1163
8. Supreme Court Williams v. DeKalb County S19A1163 Opinion
9. Supreme Court Google Scholar Williams v. DeKalb County S19A1163 Opinion
12. Court of Appeals Williams v. DeKalb County A20A0157 Opinion Court Cost Waiver Affidavit Denial
13. Judge Gregory Adams recused himself after Motion to Recuse was filed on June 19, 2020 New Judge Assigned
14. Brian P. Kemp v. Keshia Lance Bottoms. and members of the City Council. (Injunction to stop the Face Mask Ordinance Requirement) July 2020
15. Judge Courtney L. Johnson voluntarily recuses herself on July 27, 2020 without an appearance or explanation.
17. GMA - Plaintiff’ claim for civil penalties against the commissioners individually for violating the Open Meetings Act.
We also affirm the trial court's order rejecting Williams' request to conduct an in camera review of certain e-mails between various commissioners and the county attorney However, we further conclude that the trial court erred in considering the affidavits attached to the commissioners' answer to Williams' third amended complaint in reviewing the commissioners' motion for judgment on the pleadings, without properly converting the motion to one for summary judgment Therefore, we vacate that portion of the trial court's order granting the motion for judgment on the pleadings and remand the case to the trial court for further proceedings consistent with this opinion.
Judgment affirmed in part, vacated in part, and case remanded. The case Williams v. DeKalb County (Williams II) will be appealed to Georgia Supreme Court for the 2nd time.
Lawsuit challenging DeKalb commission’s pay raise vote gets new life AJC Mar 16 2020
Citizen activist wants county to give back pay raise he says was illegal WSBTV Mar 17 2020
Citizen activist’s pay raise fight heard by Georgia Supreme Court WSBTV Feb 10, 2020
Georgia Supreme Court rules on cases Albany Herald from staff reports May 14, 2020
Judge recuses himself from DeKalb commission pay raise lawsuit AJC July 2, 2020
The Supreme Court overturned the ruling of the DeKalb County trial court Judge Gregory Adams.
The Supreme Court of Georgia partially ruled in favor of Dr. Ed Williams who sued the DeKalb County Board of Commissioners for raising members’ salaries by 60 percent. In the lawsuit, Dr. Williams claimed in part that the board violated the Georgia Open Meetings Act by not giving proper notice of its intent to pass the pay increase.
In August 2018, Dr. Williams sued the county and the others, claiming the board violated the Open Meetings Act, subjecting the board members to civil and criminal penalties.
He also claimed that the Georgia Constitution and the DeKalb County Organizational Act prohibited them from having that power to increase their salaries.
Dr. Williams, alleged despite the commissioners having knowledge that there would be a vote to increase their pay, the item did not appear on the board’s pre-published agenda for the Feb. 27 meeting. At the meeting, the board then voted 6-1 to pass the increase, raising commissioners’ salaries from $40,530.55 to $65,000.
The DeKalb Superior Court judge Adams dismissed the case with prejudice and Dr. Williams appealed the case directly to the Georgia Supreme Court.
In the 7-1 decision, the Supreme Court found that “the trial court erred in dismissing Williams’ claim for civil penalties against the commissioners individually for violating the Open Meetings Act,” and it reversed that portion of the trial court’s order.
In the majority opinion, the high court vacated the portion of the trial court’s order dismissing Williams’ claim for injunctive relief against Thurmond, the Supreme Court of Georgia also stated, “We reverse that portion of the court’s order dismissing Williams’ claim against the commissioners for civil penalties under the Open Meetings Act, and we remand the case to the trial court.”
The Court also stated, “[W]e conclude that Williams had standing to request that a civil penalty be imposed against the commissioners under [Georgia Code] § 50-14-6 and to receive any penalty paid,” the opinion says. Therefore, “the trial court erred in dismissing Williams’ claim for civil penalties against the commissioners individually for violating the Open Meetings Act,”
“We conclude that Williams’ complaint sufficiently alleges that the commissioners acted with actual malice in intentionally violating the agenda requirements of the Act – a criminal act…”
The commissioners should do the right thing and pay back the people’s money
Participation in an unlawfully closed meeting may be grounds for recall from office. See Steele v. Honea, 261 Ga. 644, 409 S.E.2d 652 (1991)
Village of North Atlanta v. Cook, 219 Ga. 316, 319-320 (1) (133 SE2d 585) (1963)
Supreme Court opinion- ROMAN CATHOLIC DIOCESE OF BROOKLYN,
NEW YORK v. ANDREW M. CUOMO,
GOVERNOR OF NEW YORK
https://www.supremecourt.gov/opinions/20pdf/20a87_4g15.pdf
An employer who fires an individual merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964. July 17, 2020
https://www.scotusblog.com/case-files/cases/bostock-v-clayton-county-georgia/
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