Petition for Writ of Certiorari — Cruse v. Fayette County

e8- 1829 )[ Frees

7 MAY 3 1989

JOSEPH F. SPANIOL, JR,

No.

CLERK

In The

Supreme Court of the United States

October Term, 1988

+

JULIUS E. CRUSE,

Petitioner,

VS.

FAYETTE COUNTY,

Respondent.

e

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF GEORGIA

>

Tony H. Hicut

T. Ropert SPARKS

Attorneys for Petitioner

P. O. Box 724

4856 Jonesboro Road

Union City, Georgia 30291

(404) 964-0502

GA. BAR NO. 352800

GA. BAR NO. 669500

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether a rural property owner who has oper-

ated upon his own property since 1967 an outdoor com-

mercial amusement and recreational facility, that is, an

outdoor campground offering fishing, swimming, sun

bathing, waterslide, and overnight parking for recre-

ational vehicles to the public at large, and upon which he

has made large expenditures of money for improvements,

can be forced by subsequent amendments to the County

zoning regulations enacted in 1984, 1986 and 1988 to

discontinue his entire business which he has operated for

21 years as a campground under the then current County

zoning regulations.

2. Whether such a property owner is entitled to

compensation, pursuant to 42 U.S.C. 1983, and the Fifth

Amendment to the United States Constitution, for the

period in which he is denied aforesaid use of his property

for a taking of his property before the Courts finally

determine that the amendments aforesaid effect such a

taking of property, in accord with the decision of this

Court in First English Evangelical Lutheran Church of Glen-

dale v. County of Los Angeles, California, 482 U.S. 304, 96 L.

Ed. 2d 259, 107 S. Ct. 52, 2378 (1987) (hereinafter abbrevi-

ated as First Evangelical Church).

Petitioner respectfully requests this Court to consider

all subsidiary questions fairly included within aforesaid

two questions, pursuant to Rule 21 (1) (a) of the Rules of

this Court.

ii

PARTIES IN THE PROCEEDING

Both the Petitioner and the Respondent named in the

caption of this case are parties to the proceeding. Also

named as parties are officials of Respondent County:

Dennis Burkelbaugh, Chuck Watkins, Steve Black, Mike

Reid, Ron Martin and Perry Hiott as Cross-Defendants in

Petitioner’s counterclaim (R. 20 - R. 34) for damages and

punitive damages for a constitutional tort pursuant to 42

U.S.C. 1983 for the unlawful taking of his property, under

color of law.

ili

TABLE OF CONTENTS

Page

St Or i

eee ee BRE EAL EDIING, .................. ii

I iii

0 | iv

PETITION FOR WRIT OF CERTIORARI............ 1

I 2

CONSTITUTIONAL AND STATUTORY PROVI-

ee 3

HOW THE FEDERAL QUESTION WAS RAISED... 3

RPE BEERS COALOE................. 00000, 4

ARGUMENT: WHY CERTIORARI SHOULD BE

Ce yey hee wes tees eee tenon 9

A) SUMMARY OF ARGUMENT ................ 9

EE AE RES PAMUSUIMIEING .................06. 10

ee 12

iV

TABLE OF AUTHORITIES

Page

CASsEs:

Barker v. County of Forsyth, 248 Ga. 73, 281 S.E. 2d

Pan NSOOE. os ska bac eskis cen cee ae ereee nk es 11

First English Evangelical Church of Glendale v. County of

Los Angeles, California, 482 U.S. 304, 96 L. Ed. 2d

200, 107 S. Ct. 52, 2376 (967). ......... 2, 3, 4, 8, 9, 10

Martinez v. California, 444 U.S. 277, 62 L. Ed. 2d

481, 100 S. Ct. 553 (1980). (General holding:

State courts have concurrent jurisdiction of a

DOCtion 19a> a) oe eee a ee ae 7

Schulman v. Fulton County, et. al., 249 Ga. 852, 295

Aah Ge Sy ones skew ee cceke ee 11

STATUTES:

ee Wea SF OOP kas veces cae een eee 2

Ge a Tk 00505 ea ee ek eee vee ee. BD

CONSTITUTION:

Fifth Amendment, U.S. Constitution............. ae Se

Fourteenth Amendment, U.S. Constitution............ 7

No.

a

~

In The

Supreme Court of the United States

October Term, 1988

JULIUS E. CRUSE,

Petitioner,

VS.

FAYETTE COUNTY,

Respondent.

,

7

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF GEORGIA

,

—

JULIUS E. CRUSE petitions this Court for a Writ of

Certiorari to review the judgment of the Supreme Court

of Georgia entered in the case of Cruse v. Fayette County

(Appeal No. 46425, Supreme Court of Georgia) on the 8th

day of February, 1989, affirming without opinion, pur-

suant to Rule 59 of said Court, the judgment of the

Superior Court of Fayette County entered on September

21, 1988.

The aforesaid judgment of the lower Court (1)

enjoined Petitioner from continuing his operation of an

outdoor commercial amusement and recreational facility

on 38 '/2 acres of real estate owned by Petitioner on which

he had operated such a facility since 1967, and (2) denied

Petitioner’s counterclaim for a Constitutional tort, a tak-

ing of his property without compensation pursuant to 42

U.S.C.A. 1983, without a hearing and without a jury trial,

which Petitioner had demanded.

Both the Superior Court and the Georgia Supreme

Court ignored and failed to address the principle of law

established by this Court’s decision in First English Evan-

gelical Lutheran Church of Glendale v. County of Los Angeles,

California, 482 U.S. 304, 96 L. Ed. 2d 250, 107 S. Ct. 52,

2378 (1987), holding that where a regulation takes all use

of a property, the property owner is entitled, under the

just compensation clause of the Fifth Amendment, to

compensation for the period before the Courts finally

determine that the regulation effects a taking of property,

although said decision was cited to both Courts.

>

_

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. 1257 (3), Petitioner having at all times asserted a

deprivation of his rights secured by the United States

Constitution, more particularly the Fifth Amendment

thereto and having filed a counterclaim for damages and

punitive damages against the Respondent County and

certain of its officials for taking his property under color

of law without paying him compensation in violation ot

the Fifth Amendment to the United States Constitution,

and in violation of 42 U.S.C.A. 1983.

s

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Fifth Amendment To The United States Constitution

“No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases arising

in the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor

shall any person be subject for the same offense to be

twice put in jeopardy of life or limb; nor shall he be

compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or

property, without due process of law; nor shall private

property be taken for public use, without just compensa-

tion.” (Emphasis added.)

Statute: 42 U.S.C. 1983

“Every person who, under color of any statute, ordi-

nance, regulation, custom or usage, of any State or

Territory, subjects, or causes to be subjected, any

citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights,

privileges or immunities secured by the Constitution

and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceed-

ing for redress. For purposes of this section, any Act

of Congress applicable exclusively to the District of

Columbia, shall be considered to be a statute of the

District of Columbia.”

a

bd

HOW THE FEDERAL QUESTION WAS RAISED

A) IN THE SUPERIOR COURT

In the Superior (trial) Court, Petitioner directly raised

the federal question in his counterclaim against Respon-

dent and certain of its officials seeking compensation and

punitive damages pursuant to 42 U.S.C.A. 1983 and citing

First Evangelical Church, supra. The trial court ruled that

Petitioner had not made out a case, at a non-jury hearing

in which the counterclaim had been expressly reserved

for a later hearing, and without hearing evidence on the

1983 claim. The trial Court did not discuss the principle

of First Evangelical Church, supra, in its Order (See R. 69

or Appendix 1, Page 2).

B) IN THE SUPREME COURT OF GEORGIA

On appeal to the Supreme Court of Georgia, Peti-

tioner’s enumeration of error No. 5 alleged error in the

trial Court’s invalidating the 1983 action, and also cited

First Evangelical Church, supra. As stated previously, the

Georgia Supreme Court merely affirmed without opinion.

The federal question was clearly presented to both

Georgia Courts. but was not discussed by either Court.

7 ~

—

STATEMENT OF THE CASE

As concisely as can be stated in this complex case in

which Certiorari is sought in the cuimination of years of

controversy and a previous litigation between Respon-

dent and Petitioner, the owner of Camper’s Paradise, a 38

'/2 acre rural tract of land in Respondent County utilized

as an outdoor commercial amusement and recreational

facility since 1967. The property was utilized as a camp-

ground affording camping facilities for recreational vehi-

cles, and initially a golf driving range, pony rides, go-cart

track and swimming lake (since phased out), and

replaced with a waterslide, fishing lake and beach (T.

89-93).!

The development of the property since 1967 as a

campground was with the approval and knowledge of

then County Engineer Strother (T. 163). Petitioner was

also granted business licenses by Respondent to operate a

campground in 1979 and 1985 (T. 38). He developed

additional campsites for tents and self-contained recre-

ational vehicles, and provided water, electricity and sew-

age connections for campsite purposes (T. 89-93).

Petitioner’s property was zoned under the C-4 (10)

Zoning Ordinance of 1960 for “outdoor amusement enter-

prises.” In 1971, a Comprehensive Zoning Ordinance was

enacted that abolished C-4 Zoning (O.T. 31-32). Then

November 13, 1980, a rezoning ordinance was ado}

which did not include a C-4 designation under «

cial districts; however, in AR (agricultural res

“outdoor commercial amusement and recreat

“

ties” were permitted (O.T. 216). Petitio:

1 The record in the instant case is den

(T-page). A previous Petition for Equitabl:

Respondent, in 1985, against Petitioner seeking a:

restrain him from continuing his operation of (

dise was decided adversely to him, and said

affirmed without opinion by the Supreme Court

The record of that litigation was ordered combined

made a part of the record in the instant case. Refere:

prior case (No. 44164, Supreme Court of Georgia

denoted by O.T. or O.R. (for old transcript of old re

appropriate, with page numbers added.

continued to expand and add to the number of campsites,

with water, sewage, and electric hookups (O.T. 163-171).

In 1984, Respondent amended the 1980 zoning ordi-

nance which deleted from AR Zoning the “outdoor com-

mercial amusement and recreational activities” (Pl. Exh.

37, O.T. 219). This resulted from complaints about Peti-

tioner placing hookups for recreational vehicles where

they would be visible from the highway (O.T. 123).

Respondent then sent letters to Petitioner stating that he

would be allowed to maintain all existing buildings and

structures on the property prior to the 1980 ordinance

and continue to operate as an “outdoor amusement facil-

ity” without any further expansion (O.T. 226-228, Dft. Exh

ro eS

In September, 1984 and July, 1985, Petitioner was

served with “Stop Work Orders” from Respondent’s Plan-

ning and Zoning Department to the effect that his prop-

erty was zoned AR and that an outdoor commercial

recreational facility was not a permitted use (P1. Exh. 6,

O.T. 188).

Respondent then filed a Petition for Equitable Relief,

as stated in footnote 1, seeking to restrain Petitioner for

continuing his business at Camper’s Paradise (O.R. 3).

After hearing, the trial Court on April 26, 1986 ruled that

the 1984 Amendment was void because of faulty adver-

tising and non-posting of property and allowed Respon-

dent 60 days within which to re-enact the 1984

Amendment (R. 108). This was done on July 3, 1986 (R.

128). The trial Court entered an Order on September 26,

1986, allowing no further evidence by Petitioner and

holding that the 1984 Amendment was now constitutional

(O.R. 108, 157, 168).

Petitioner’s appeal of this Order resulted in the Geor-

gia Supreme Court’s affirmance without opinion of the

trial Court’s Order.

This brings us to the Order which is the subject of

this Application for Certiorari. On August 4, 1987,

Respondent filed a Petition for Equitable Relief, alleging

that Petitioner was operating his campground as an ille-

gal nonconforming use and requested the issuance of an

injunction to restrain Petitioner from continuance of such

use (R. 7-10).

Whereupon, Petitioner filed his Response and Cross-

Complaint. In the latter, he joined with the Respondent

four members of the Board of Commissioners, the Direc-

tor of Planning and Zoning and the Zoning Administra-

tor of the Respondent County in an action for damages

for conspiracy to and depriving him under color of law of

his rights to his property, in violation of the Fifth and

Fourteenth Amendments to the United States Constitu-

tion and of 42 U.S.C. 1983, seeking punitive damages and

a declaratory judgment that he has a vested right to

develop his property pursuant to the 1980 Comprehen-

sive Zoning Ordinance for outdoor commercial recre-

ational facilities (R. 23-24). Martinez v. California, 444 U.S.

277, 62 L. Ed. 2d 481, 100 S. Ct. 553 (1980). (General

holding: State courts have concurrent jurisdiction of a

Section 1983 claim.)

On August 17, 1988, the trial Court was reminded by

letter brief that “all issues as to any counterclaim or

involving jury issues were postponed (at the last appear-

ance in Court) until after the hearing on August 23.”

Among the issues to be decided at the hearing was “the

application of the grandfather provision relative to oper-

ating an outdoor commercial recreational facility” since

prior judicial admissions by Respondent had established

such fact (R. 71-73, See Court’s Order, R. 65).

Thereafter, as scheduled on August 23, 1988, a hear-

ing was held without a jury. On September 21, 1988, the

trial Court entered the Order which is the subject of this

Application for Certiorari. (See App. 1.)

The complete Order is appended to this Application,

Rule (1) (k), as Appendix 1.

The portions of said Order which Petitioner contends

are erroneous are:

(a) The finding of fact that Petitioner was operating

an “overnight vehicular park”, without having been

authorized to do so, either prior to April of 1986 or

subsequent to April of 1986 (R. 68).

(b) The granting of a permanent injunction against

Petitioner’s use of that property in violation of the

amended zoning ordinance of August 28, 1986 (R. 66).

(c) The finding that Petitioner’s use of this land as

an overnight park for vehicles has been from its inception

an illegal nonconforming use and still remains so (R. 68).

(d) The finding that Petitioner’s counterclaim alleg-

ing a Constitutional tort under 42 U.S.C.A. is denied

because the Petitioner has failed to make a case on the

counterclaim, in a non-jury hearing with no evidence on

the merits of the counterclaim and ignoring First Evangeli-

cal Church, supra (R. 69). This was ordered after the pre-

vious Order postponing issues on the counterclaim.

(e) The denial of Petitioner’s requested declaratory

judgment that he has a vested right of overnight camp-

ing, against the weight of the evidence and the pleadings

of both parties (R. 69).

(f) The Court’s direction to Petitioner to remove

from his property all vehicles within 30 days from the

date of the Order, or any affirmance of the Order, and the

direction to the Respondent County to impound on the

31st day all such vehicles (R. 70).

Petitioner appealed this Order to the Supreme Court

of Georgia, which again simply affirmed without opinion

on February 8, 1989. (See App. 2.)

On February 23, 1989, the Georgia Supreme Court

granted Petitioner’s motion for stay of its mandate for 90

days after February 8, 1989. (See App. 3.)

y

al

ARGUMENT: WHY CERTIORARI

SHOULD BE GRANTED

A) SUMMARY OF ARGUMENT

In this case, a citizen has been deprived of the busi-

ness use of his property, after 21 years of similar opera-

tion, by the enactment of new zoning regulations, and

such deprivation has been affirmed by the Georgia

Courts. Petitioner respectfully insists that a decision by

this Court, the highest in the United States, would have

great influence, not only in this case, but in similar cases

which may arise in the future in any State of this country.

The First Evangelical Church, supra, case has generated

widespread interest and discussion, and a decision in the

10

instant case would clarify some questions that have been

posed by that earlier decision.

b) PRINCIPLE ARGUMENT

When this Court’s decision in First Evangelical Church

was initially rendered, widespread interest nationwide

was aroused by it. The ruling was widely discussed by (1)

the news media, (2) legal scholars, and (3) municipal and

county officials charged with controlling the use of land

through zoning ordinances. The focus of such discussion

was whether that decision would have the effect of inhi-

biting local or State officials from effectively controlling

land use through zoning or other ordinances because of

their fear of being personally sued for damages or com-

pensation by some aggrieved landowner whose property

rights were abridged by such local laws. This case pre-

sents a classic illustration of how a property owner can

have the use of his property stripped away from him,

without compensation or other legal resources. It is

important enough to merit consideration by this Honor-

able Court, which would be informative to the rest of this

country.

The record in this case is replete with subsidiary

questions fairly comprised within the two questions pre-

sented. For example, the ruling of the trial Court goes

outside the pleadings of both parties, and finds Petitioner

is operating a mobile home park. Respondent in his injunc-

tive action did not so allege. Instead, Respondent alleged

Petitioner was operating an outdoor commercial amuse-

ment and recreational facility (R. 3, T. 38). Other wit-

nesses for Respondent established that fact (T. 122, 127; T.

11

133, 134, 135, 139; T. 143, 144, 147). Petitioner testified to

the same use of his property (T. 163-167, 171). Finally,

Respondent’s own evidence shows that Petitioner’s use

would be recommended for approval provided he agreed

that he would not expand, not utilize any RV sites closer

than 300 feet to the road (along the southern boundary of

his property), would limit the stay of vehicles to six

months, not intrude into the flood plain of a creek that

abuts his property for 500 feet, etc. (T. 72, 73). Obviously,

Petitioner could not afford to abandon 800 feet of a 38 1/2

acre lot which he had developed at great expense to

himself. Thus, an issue exists as to the sufficiency of the

evidence to support the trial Court’s Order.

Another subsidiary issue exists as to whether Peti-

tioner acquired a vested interest in the use of his property

by such use over many years, with the knowledge of

Respondent’s officials. See Barker v. County of Forsyth, 248

Ga. 73, 281 S.E. 2d 549 (1981) and Shulman v. Fulton

County, 249 Ga. 852, 195 S.E. 2d 103, both dealing with the

vesting of rights where applicants for a permit have

incurred substantial expenses in developing their busi-

ness use of property.

Finally, the record shows that Petitioner’s property,

called Camper’s Paradise, was the only such facility oper-

ating in Respondent County (O.T. 40) and that the 1984

zoning change was to allow the County authorities to

control its continued development by requiring the

owner (Petitioner) to apply for additional zoning mod-

ifications or changes (O.T. 56, 53). Thus, the issue of

specific “spot zoning” is another subsidiary issue.

12

We will not go further in setting out such subsidiary

issues, as conciseness is required by this Court’s Rules.

a

_

CONCLUSION

Petitioner prays that Certiorari be granted to review

aforesaid issues, which are important to State Courts

across the country who may confront 1983 actions against

governing officials and legal governmental entities for

the taking without compensation of the use of property

under color of law.

Respectfully submitted,

Tony H. Hicut

J. Ropert Sparks

Attorneys for Petitioner

Georgia Bar No. 352800

Georgia Bar No. 669500

P. O. Box 724

4856 Jonesboro Road

Union City, Georgia 30291

(404) 964-0502

App. 1

APPENDIX

(1.) Order of Superior Court for which Review by Certiorari

is sought.

IN THE SUPERIOR COURT FOR THE

COUNTY OF FAYETTE

STATE OF GEORGIA

FAYETTE COUNTY, : CIVIL ACTION FILE

Plaintiff ° NO. 87V-706

V.

JULIUS E. CRUSE,

Defendant

ORDER

Plaintiff, Fayette County instituted an action for an

injunction against the defendent, Julius E. Cruse, seeking

to enjoin the defendant from operating an outdoor recre-

ational vehicle park known as “Camper’s Paradise”. The

defendant counterclaimed alleging a constitutional tort

under 42 U.S.C.A. Section 1983 and further sought a

declaratory judgment seeking to have this Court declare

that he has a vested right for use of this facility for

overnight camping. A hearing was held on August 23,

1988. The Court finds as follows:

The issue before the Court is whether or not the

present zoning which has been adopted by Fayette

County, since the order of this Court in April of 1986 in

civil action file number 85V-117, confirmed by the

Supreme Court of the State of Georgia, prohibits the use

to which the defendant has put this property. The Court

finds that it does.

App. 2

Based upon the facts, this Court finds that the defen-

dant’s property was rezoned properly and legally posted

with the notice required by Georgia Law after April of

1986, and that thereafter there was no constitutional

attack or legal attacks of any kind by the defendant on

that change. That thereby establishes the 1986 amend-

ment to the Fayette County Zoning Law as the legal use

and legal restrictions upon which this defendant can use

and which improvements he can place and which busi-

nesses he can operate on the property in Fayette County

under the A-R zoning.

The Court further finds, that the defendant does

allow overnight vehicular parking, and that some of the

structures appear to have improvements that would

appear to be permanent or semi-permanent dwellings,

and that there are approximately 75 to 100 vehicles and/

or camping type trailers or vehicles within the defen-

dant’s property at any given time. The Court further

finds that pursuant to its Order of April, 1986 the defen-

dant has never been authorized to operate an overnight

vehicular park by the zoning authorities of Fayette

County or any permitted use permit has been issued

either prior to April of 1986 or subsequent to April of

1986.

Therefore, the Court concludes that the defendant’s

use of this land as an overnight park for vehicles has

from its inception been an illegal non-conforming use and

still remains an illegal non-conforming use.

Therefore, the plaintiff's complaint for injunction is

hereby granted and a permanent injunction against the

defendant’s use of that property that violates any portion

App. 3

of Section 6-14 of the Zoning Ordinance of Fayette

County as it was amended as of August 28, 1986.

Further, the defendant’s counterclaim alleging any

constitutional tort of 42 U.S.C.A. Section 1983 is hereby

denied as the defendant has failed to make a case on the

counterclaim on the 1983 action. This is based upon the

fact that the defendant had sought a change prior to 1986

to community-commercial (C-C) zoning and this was

denied by the Board of Commissioners of Fayette County

and that denial was unappealed. Thereafter in 1986, the

Fayette County Board of Commissioners changed the

zoning on defendant’s property and the defendant hav-

ing the right to institute a constitutional attack at that

time failed to do so and can not now raise any constitu-

tional issues for the first time either on an appeal or in

any ancillary or collateral proceeding. The Court further

notes that while this action is separate from the original

case in Civil Action File Number 85V-117 the same sub-

ject matter is dealt with and exactly the same parties.

Therefore, the record in Civil Action File Number 85V-117

is hereby incorporated into the record of this case.

As earlier noted, the defendant has filed a declara-

tory judgment action seeking to have this Court declare

that he has a vested right for use of overnight camping.

As this Court has previously noted into the record, the

use of this defendant of that property for camping vehi-

cles, or overnight parking of any type of vehicles has, and

still is an illegal non-conforming use, and it has been so

since its inception, continues to be today, and such an

illegal non-conforming use cannot form the basis of a

vested right under Georgia law. This Court therefore,

denies the defendant’s relief on the declaratory judgment

and the counterclaim.

App. 4

The defendant is directed that either thirty days from

the date of this judgment or thirty days from the date of a

final decision by the final Appellate Court is returned to

this Court all vehicles shall be removed from the defen-

dant’s property. If, on the thirty-first day, either from the

date of this Order or from the date that this Order is

finally affirmed, if it is so affirmed, if there are any

vehicles at all of a camping nature on this property, the

County is directed to take wreckers or whatever vehicles

that are deemed appropriate, and remove said vehicles

and bring them to the County impound lot either on

County owned property or leased by the County for that

purpose and impound those vehicles until further Order

of this Court.

SO ORDERED this 21 day of Sept., 1988.

/s/ Ben J. Miller

BEN J. MILLER, Judge

Griffin Judicial Circuit

Fayette Superior Court

Order prepared by

R. Mark Mahler

Assistant County Attorney

Fayette County

100 Habersham Drive

P.O. Box 849

Fayetteville, Georgia 30214

(404) 461-2223

Consented to as to form:

/s/ Tony H. Hight by RMM

TONY H. HIGHT

App. 5

App. 2. Order of Supreme Court of Georgia affirming without

opinion lower Court’s Order of September 21, 1988.

In the Supreme Court of Georgia

Decided: Feb. 8, 1989

46425. CRUSE v. FAYETTE COUNTY.

Judgment affirmed without opinion pursuant to Rule

59 of this court.

All the Justices concur.

App. 6

App. 3. Order of Supreme Court of Georgia staying mandate

pending Application for Certiorari to this Court.

SUPREME COURT OF GEORGIA

ATLANTA, FEB. 23, 1989

The Honorable Supreme Court met pursuant to

adjournment.

BY: Gregory J.

The following direction was given:

JULIUS E. CRUSE V. FAYETTE COUNTY

Upon consideration of the motion for a stay of this

court’s remittitur in order that an appeal or an applica-

tion for certiorari may be filed in the Supreme Court of

the United States to obtain a review of this court’s judg-

ment rendered in this case on 2-8-89 such motion is

hereby granted, subject to the following conditions:

(1) The clerk of this court is directed to withhold

the transmittal of such remittitur to the trial court for

ninety days from the date of this court’s judgment.

(2) The clerk of this court is directed to transmit

such remittitur to the trial court not later than the ninety-

fifth day from the date of this court’s judgment, provided

that the clerk shall continue to withhold the transmittal of

such remittitur if the clerk is notified in writing that an

appeal or application for certiorari has been timely filed

in the Supreme Court of the United States. Upon the

timely filing of such appeal or application in the Supreme

\pp

Court of the United States, the clerk is

hold the transmittal of such remittitur

}

disposition of the case by tl

.

sS/ Hardy Gregory ]r

tico | 1 . ]

JUSTICE Hardy (,regory I