Opposition — Miree v. DeKalb County

IN THE

Supreme Court of the United

Supreme Court, U.

FILED

9. a

NOV 96 1976

—

RODAK, JR., CLERK

OctToBER TERM, 1976

No. 76-607

MIREEB

v.

DEKALB CouNTY, GEORGIA

No. 76-659

PHILLIPS

Vv.

DeKats County, GEORGIA

No. 76-722

FIELDS

v.

DeKaLs Counry, GEORGIA

No. 76-700

FIREMAN’S FUND

v.

DEKALB CouNTY, GEORGIA

On Petition for a Writ of Certiorari to the Uniied States

Court of Appeals for the Fifth Circuit

RESPONSE OF DEKALB COUNTY, GEORGIA TO

PETITIONS FOR WRIT OF CERTIORARI

WENDELL K. WILLARD

Harvey, WimLLarD & ELLIOTT

125 Trinity Place

Decatur, Georgia 30030

MEADE Burns

F. Cray BusH

LonG, WEINBERG, ANSLEY & WHEELER

3000 Equitable Building

Atlanta, Georgia 30303

Of Counsel for Defendants,

DeKalb County, Georgia

Press or Brnow S. Adams Pauvrivc, Inc., Wasuincron, D. C.

TABLE OF CONTENTS

Page

TE, Keveweas, QCUSUMVATIOND 2... cc cccccccccccccccccees 1

ls Es oe ee coe SCENE Nees eEeesecoenees 2

ITT. STATEMENT OF THE CASE ..........cccccccccccecs q

IV. ArGuMENT AND CrraTION oF AUTHORITY .......... 4

A. Under the Constitution and Statutes of Georgia

Respondent Is Immune from Suit in the Pres-

N65 ch 66 6Ss oh bnSdechesccodonecs 4

B. Petitioners’ Complaints Fail To State a Claim

or Cause of Action Upon the Theories of Negli-

ES GH TNE wc kc secvocensvaceceseces 6

C. Petitioners’ Complaints Fail To State a Claim

or Cause of Action Upon the Theory that Peti-

tioners Are Third Party Intended Beneficiaries

to the Federal Grant Agreements ........... 6

1. Review of Georgia Authority ........... 7

2. Review of Federal Authority ........... 8

V. Reasons ror DENYING THE PETITIONS FoR A WRIT OF

EE Cun n cancun sddddswaredbeteseceaceces 11

TABLE OF CITATIONS

CaSsEs :

Backus v. Chilivis, Commissioner, 236 Ga. 500, 224 S.E.

ot ee ee eee ceed ace sadnhees 7,8

Rosdail v. Western Aviation Company, Inc., 297 F.

A OE OU A, Bon. vc oc cece pssacicoece 11

City of Inglewood v. City of Los Angeles, 451 F.2d 948

ed ees inn. ade eednebedegs 10-11

Commonwealth of Pennsylvania v. National Associa-

tion cf Flood Insurers, 378 F.Supp. 1339 (M.D.

Beh PED SoceVesdcccceesscvbscdseccsstcccesees 9

Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26

CRU £6006 0S0bouc 5 6p0s c6enseperessoeecceses 10

Crowder v. Department of State Parks, 228 Ga. 436,

EE SEE obo ce neeeeuccnscensaecces 5

ii Table of Citations Continued

Page

Deal v. Chemical Construction Company, 99 Ga. App.

413, 108 8.B.2d 746 (1959) .....ccesscccccccsecs

Decatur County v. Prayton, Howton and Wood Con-

tracting Company, 163 Ga. 929, 137 S.E. 247 (1927) 7

Edelman y. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39

L100. Sd OBB (IGTE) .. .cccscvvesccncscescuunennen 9

Employees v. Department of Public Health and Wel-

fare, 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251

+ Pee ee 8-9

German Alliance Insurance Company v. Home Water

Supply Co., 226 U.S. 220, 33 S.Ct. 32, 57 L.Ed. 195

RO 9

Hancock County v. Williams, 230 Ga. 723, 198 S.E.2d

GED (BOTS) 2. vcccscessesenccstsccuunnneeenenee 7

Harlib v. Lynn, 511 F.2d 51 (7th Cir. 1975) ......... 9

Intracoastal Transportation, Ine. v. Decatur County,

Georgia, 482 F.2d 361 (5th Cir. 1973) ........... 8

Lee v. Petty, 183 Ga. App. 201, 210 S.K.2d 383 (1974) . 7

Lobianco v. Valley Forge Military Academy, 224 F.,

Supp. 395 (E.D. Pa. 1963), affirmed 331 F.2d 851

(See Civ. BOGE) .occcccceccsceseunensenueee 9-10

McCord v. Dixie Aviation Corp., 450 F.2d 1129 (10th

Ole. 2099) 00 ccccncencsscenes enue anne 11

MeWhirter Material Handling Company, Ince. v. Geor-

gia Paper Stock Company, Inc., 118 Ga. App. 582,

3164 B.S GES (IOGR) .oo0cn00s0ecdecnuneees 7

Miree v. United States, 526 F.2d 679 (5th Cir. 1976) .. 3

Miree v. United States, 538 F.2d 643 (5th Cir. 1976) .. 3

Moody v. MeDaniel, 190 F. Supp. 24 (N.D. Miss. 1960) 12

Morrison v. Jack Richards Aircraft Company, 328 F.

Supp. 660 (WE. Clie. BOVE) os ecsnnvcsuesauuee 11

Moungey v. Brandt, 250 F. Supp. 445 (W.D. Wis. 1966) 11

Parden v. Terminal Railway Company, 377 U.S. 184,

84 S.Ct. 1207, 12 L.Ed.2d 233 (1964) ............ 8

Polansky v. Transworld Airlines, Inc., 523 F.2d 332

(Sed Ole. BGR) «oc cccccccvenceseeeunnneeee 11

Purser v. Dodge County, 188 Ga. 250, 3 S.B.2d 574

(10GB) .....«+0000000005000n0un nanan 7

Red Star Towing & Transportation Company v. De-

partment of Transportation of State of New Jer-

sey, 423 F.2d 104 (3rd Cir. 1970) ............05. s

Table of Citations Continued iil

Page

Revels v. Tift County, 235 Ga. 333, 219 S.E.2d 445

CCC iee beer cecesescecccccccoscses 5

Rogers v. Ray Gardner Flying Service, Inc., 435 F.2d

TE chick cGn ess eccnccncece recess 8,11

Sheley v. Board of Publie Education, 233 Ga. 487, 212

eee cence ebeecececcecescces 5

Simmons v. Western Assurance Company, 205 F.2d 815

Eee ccc 5e ccc ebteceececccccss 10

Stanturf v. Sipes, 224 F. Supp. 883 (W.D. Mo. 1963),

affirmed 335 F.2d 224 (8th Cir. 1964) ...........

Troup County Electric Membership Corporation v.

Gicorgia Power Company, 229 Ga. 348, 191 S.E.2d

es cece ccccececces 5

United States v. Orleans, — U.S. —, 96 S.Ct. 1971,

EEE 10, 12

Williams v. Georgia Power Company, 233 Ga. 517, 212

EEE EE SE Pe 5, 7

Williamson Towing Company v. Illinois, 534 F.2d 758

Nn cc ccccscccoce s

MISCELLANEOUS:

Ga. Code Annotated Section 2-3710 ................. 4

Ga. Code Annotated Section 23-1502 ................ 4

Restatement of Contracts Section 145 ............... 8,9

IN THE

Supreme Court of the United States

October TERM, 1976

No. 76-607

MIREE

V.

DeKaLB CouNTY, GEORGIA

No. 76-659

PHILLIPS

V.

DeKatp Counry, GEORGIA

No. 76-722

FIeLps

v.

DeKALB County, GEORGIA

No. 76-700

FIREMAN’sS FUND

v.

DeKALB County, GEORGIA

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

RESPONSE OF DEKALB COUNTY, GEORGIA TO

PETITIONS FOR WRIT OF CERTIORARI

I.

INITIAL OBSERVATIONS

Respondent, DEKALB COUNTY, GEORGLA, files

this Brief in response to four (4) Petitions for a Writ

of Certiorari: George Henson Miree, et al v. DeKalb

County, Number 76-607, (hereinafter ‘*‘Miree’’ Ap-

peal); Judith Ann Phillips v. DeKalb County, Civil

Action Number 76-659 (hereinafter ‘‘ Phillips’? Ap-

peal) ; William Michael Fields vy. DeKalb County, Civil

Action Number 76-722, (hereinafter ‘‘ Fields’? Ap-

peal); and Fireman’s Fund Insurance Company v.

DeKalb County, Civil Action File Number 176-700,

(hereinafter ‘‘Fireman’s Fund’’ Appeal).

Respondent would point out that the enclosed Brief

will contain its response to all four (4) of the above-

noted Petitions. This inclusive response will create ob-

vious problems with four (4) separate records and

positions, which the Respondent will attempt to mini-

mize by as few references to the separate records and

contentions as possible.

II.

FACTUAL SETTING

The Petitions presently before this Court arise out

of events which occurred on or about February 26,

1973. Each of the actions presently on Petition before

this Court, were instituted, from November, 1973, to

May, 1974, in the United States District Court for the

Northern District of Georgia, Atlanta Division, against

Respondent herein and the United States. Each of the

Petitions alleged diversity of citizenship jurisdiction,

as it related to Respondent DeKalb County, Georgia.

Moreover, each of the Complaints alleged that Re-

spondent was liable to Petitioners under the theories

of negligence, nuisance, and breach of Federal Grant

Agreements to which the Petitioners were alleged third

party intended beneficiaries.

3

The Respondent, concurrently with the filing of re-

sponsive pleadings, filed Motions to Dismiss each of the

subject actions, upon the theory that Dekalb County,

Georgia, was immune from suit in these actions under

the Constitution and Laws of the State of Georgia. The

Honorable William C. O’Kelley, United States District

Judge, granted the Respondent’s Motions to Dismiss in

unreported Orders dated June 27, 1974, and September

24, 1974. District Judge, O’Kelley held that under

Georgia Law, DeKalb County, Georgia, was immune

from suit in the present actions. Thus, the governmen-

tal immunity of the County precluded the present aec-

tions under the theories of nuisance, negligence, and

contractual beneficiaries.

The present Petitioners, appealed the entry of judg-

ment, to the United States Court of Appeals for the

Fifth Cireuit. The initial panel of Circuit Judges God-

bold, Dyer and Morgan, held in Miree v. United States,

526 F.2d 679 (5th Cir. 1976), that DeKalb County,

Georgia was immune from suit under the Petitioner’s

theories of negligence and nuisanee. However, that

panel split over the issue of the rights of the Petitioners

as intended beneficiaries of the Federal Grant Agree-

ments in issue. A re-hearing en bane was granted, and

in Miree v. United States, 538 F.2d 643 (5th Cir. 1976),

the majority of the Court adopted the previous dissent

of Cireuit Judge Dyer. The effect of these opinions

was that the rulings of District Judge O’ Kelley, and the

judgment entered thereon, dismissing the Respondent

from the present actions, was affirmed.

4

Il,

STATEMENT OF THE CASE

The Respondent does question many of the ‘‘facts”’

listed in the various Petitions, as lacking support in the

record before this Court, or the record that was before

the Fifth Cireuit. The Respondent will not burden this

Court or utilize its limited pagination resources, by

ealling this Court’s attention to numerous conclusory

allegations and unwarranted deductions of fact set

forth in the various petitions. The Respondent adopts

as its factual statement, the factual recitations con-

tained within the twe (2) Orders of District Judge

William C. O’Kelley, and the factual background set

forth by Cireuit Judge Morgan, in the panel opinion

reported at 526 F.2d 679, at 681.

IV.

ARGUMENT AND CITATION OF AUTHORITY

A.

Under the Constitution and Statutes of Georgia, Respondent

Is Immune from Suit in the Present Actions

In Georgia, the governmental immunity of DeKalb

County, Georgia, has its basis both in the Georgia Con-

stitution; Georgia Code Annotated Seetion 2-3710,

(Georgia Laws 1973, p. 1489; ratified by electorate, 1974

General Election), and in the statutory law, Georgia

Code Annotated Section 23-1502. The latter Code See-

tion states, clearly and precisely, as follows:

‘‘A County is not liable to suit for any cause of

action unless made so by statute.”’

Several of the Petitioners have suggested that Geor-

gia Code Annotated Section 23-1502, is uneonstitutional

in its application to the facts at bar. Respondent calls

5

this Court’s attention to the Trial Court records of each

of the subject actions, where a brief review of same will

evidence a lack of proper foundation for several of the

Constitutional attacks in this Court. Even if the at-

tack possesses sufficient foundation, the Supreme Court

of Georgia in numerous recent decisions has shown that

governmental immunity has existed in Georgia, since

1784, and that the doctrine violates neither the Georgia

nor the Federal Constitutions. Crowder vy. Department

of State Parks, 228 Ga. 436, 185 S.K.2d 908 (1971) ;

Williams v. Georgia Power Company, 233 Ga, 517, 212

S.E.2d 348 (1975); Revels v. Tift County, 235 Ga, 333,

219 S.K.2d 445 (1975). Moreover, the Supreme Court

of Georgia has held that the recent constitutionalization

of the governmental immunity doetrine in Georgia de-

mands that the immunity rule is no longer open to judi-

cial abrogation. Sheley v. Board of Public Education,

233 Ga. 487, 212 S.E.2d 627 (1975); Revels v. Tift

County, 235 Ga, 333, 219 S.K.2d 445 (1975).

Further, reference is made in several petitions that

the distinction between county and municipal immun-

ity under Georgia Law is violative of Constitutional

requirements. Kven if this argument had been prop-

erly raised in the Trial Court, which Respondent con-

tends is not the case, this argument would find little

support. The Supreme Court of Georgia, as recently as

1972, unanimously held in Troup County Electric Mem-

bership Corporation v. Georgia Power Company, 229

Ga. 348, 191 S.E.2d 33 (1972), that under Georgia Law,

counties are ‘‘arms of the State’’ bearing the State’s

burdens within their localities. On the other hand,

municipalities, as legislative creatures, can select from

the various powers and duties available, and reject

those liabilities which will either be inapplicable for the

6

particular location or simply unwanted by the incorpor-

ators. The distinctive features and liabilities of each

are rational and embedded in the law of Georgia. It

should be noted that District Judge O’Kelley’s opinion,

as well as that of Circuit Judge Morgan, which was sub-

sequently adopted by the en bane Court, referred to and

approved this legal distinction.

Petitioners’ Complaints Fail To State a Claim or Cause of

Action Upon the Theories of Negligence and Nuisance

Respondent will not burden this Court with exten-

sive written argument on the Petitoners’ theories of

negligence and nuisance. Suffice it to say that District

Judge O'Kelly and the entire Fifth Cireuit Court of

Appeals, including Cireuit Judges Morgan and Hill

from Georgia, have held that the Respondent is not

liable under either of Petitioners’ theories. These

opinions are clearly supported by Georgia Law and re-

quire no further written argument to this point.

Cc.

Petitioners’ Complaints Fail To State a Claim or Cause of Ac-

tion Upon the Theory that Petitioners Are Third Party

Intended Beneficiaries to the Federal Grant Agreements

Respondent DeKalb County, Georgia, has consis-

tently argued that under the application of either

Georgia Law or Federal Law, it is not liable to the

Petitioners. The Petitioners’ assertions that the ma-

jority of the Fifth Cireuit Court of Appeals reviewed

only Federal Law is incorrect. Judge Dyer’s dissent,

which was subsequently adopted, specifically noted that

if Georgia Law was applied, the result would be the

same. 526 F.2d, at p. 686 (footnote 1).

.

— ym *

7

L

Review Of Georgia Authority

In reviewing Georgia law, Respondent would again

call this Court’s attention to the previously discussed

‘Jonstitutional and statutory governmental immunity

of this entity. Respondent takes strong issue with the

suggestions contained in several petitions and the dis-

sent of Judge Morgan, wherein it is suggested that

Georgia Law would permit the present actions to pro-

ceed under the theory of an intended third party bene-

ficiary. In Georgia, the imunity rule is unavailable to

a county being sued by a contracting party for a breach

of a valid contract. Decatur County v. Prayton, How-

ton and Wood Contracting Company, 163 Ga. 929, 137

S.E. 247 (1927). The present action does not involve

contracting parties, but, on the contrary, involves

strangers to the contract. With the addition of these

strangers to the contract as alleged third party intended

beneficiaries, the immunity and non-liability of the

county is re-imposed. Purser v. Dodge County, 188 Ga.

250, 3 S.E.2d 574 (1939); Backus v. Chilivis, Commis-

sioner, 236 Ga, 500, 224 8.16.2d 370 (1976) ; Lee v. Pet-

fy, 138 Ga. App. 201, 210 8..2d 383 (1974) ; McWhirter

Material Handling Company, Inc. v. Georgia Paper

Stock Company, Ine., 118 Ga. App. 582, 164 8.l.2d 852

(1968), and Williams v. Georgia Power, 233 Ga, 517,

212 S.E.2d 348 (1975), [Supreme Court of Georgia

re-consideration of the issues presented in Hancock

County v. Williams, 230 Ga. 723, 198 S.E.2d 659 (1973),

cited by dissent and Petitioners].

The above-noted decisions also hold that for a par-

ticular stranger to a contract to have standing to en-

force the contract, it must be clearly manifested in the

8

contract that it was made for his intended benefit.

Moreover, the mere fact that the third party might

benefit from performance of the agreement is not suffi-

cient. Backus v. Chilivis, Commissioner, supra, The

Petitioners, as members of the public, were incidental

to the contract formation, incidental to the contract

execution and incidental to the contracting parties.

Therefore, under Georgia Law, the Petitioners would

not have sufficient standing to enforce the contract, even

if the county’s governmental immunity were improper-

ly questioned. It is to be noted that the Georgia ap-

proach is consistent with and applicable of the Restate-

ment of Contracts, Section 145.

2.

Review Of Federal Authority

Moving to a review of Federal Law, Respondent con-

tends that its governmental immunity, created under

Georgia Law, is equally applicable to any review of

Federal authorities. The governmental immunity of a

state or a political subdivision thereof, is not waived by

its entry into a Federal area or its subjection to Federal

‘‘Overlordship’’, Intracoastal Transportation, Inc. v.

Decatur County, Georgia, 482 F.2d 361 (5th Cir. 1973) ;

Red Star Towing & Transportation Company v. De-

partment of Transportation of State of New Jersey,

423 F.2d 104 (3rd Cir. 1970); Rogers v. Ray Gardner

Flying Service, Inc., 435 F.2d 1389 (5th Cir. 1970) ;

Williamson Towing Company v. Illinois, 534 F.2d 758

(7th Cir. 1976). Any suggested reliance upon the de-

cision in Parden v. Terminal Railway Company, 377

U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964), and its

short-lived progeny, would be and is misplaced. See

Employees v. Department of Public Health and Wel-

9

fare, 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973),

and Edelman vy. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39

L.Ed.2d 662 (1974).

Respondent would further contend that the Peti-

tioners have not established, nor can they establish that

they were intended beneficiaries to the Federal Grant

Agreements in issue. The Restatement of Contracts,

Section 145, noted previously, provides, as follows:

‘‘A promisor bound to the United States or to a

state or municipality by contract to do an act or

render a service to some or all the members of the —

publie is subject to no duty under the contract to

such members to give compensation for injurious

consequences of performing or attempting to per-

form it, or failing to do so, unless,

(a) An intention is manifested in the contract, as

interpreted in light of the circumstances, surround-

ing its formation, that the promisor shall ecompen-

sate members of the publie for such injurious con-

sequences ...”’

The Restatement rule was clearly fashioned upon

decisions such as this Court’s decision in German Alli-

ance Insurance Company v. Home Water Supply Co.,

226 U.S. 220, 33 S.Ct. 32, 57 L. Ed. 195 (1912), which

required that the contract disclose a ‘‘direct’’ benefit

to the third party, in order for that third party to have

standing to enforce the contract. Numerous Federal

Court decisions support this approach. Harlib v. Lynn,

511 F.2d 51 (7th Cir. 1975) ; Commonwealth of Penn-

sylvania v. National Association of Flood Insurers,

378 F. Supp. 1339 (M.D. Pa. 1974) ; Stanturf v. Sipes,

224 F. Supp. 883 (W.D. Mo 1963), affirmed 335 F.2d

224 (8th Cir. 1964) ; Lobianco v. Valley Forge Military

Academy, 224 F. Supp. 395 (E.D. Pa. 1963), affirmed

10

331 F.2d 851 (3rd Cir. 1964), (as well as the decisions

cited by Cireuit Judge Dyer). This approach is very

consistent with this Court’s recent decision in United

States v. Orleans, — U.S. —, 96 S.Ct. 1971, 48 L.Ed.

2d 390 (1976), wherein this Court unanimously held

that the grantor of federal funds did not subject itself

to ‘“‘eountless unidentifiable classes of beneficiaries,”’

id, 48 L. Ed. 2d, at p. 399. Certainly, if the grantor is

not liable to ‘‘countless unidentifiable classes of bene-

ficiaries,’’ the grantee of said funds, who itself is

cloaked with unwaived governmental immunity,

equally is not liable.

Respondent would further contend that even if this

Court were to determine that the Petitioners were third

party intended beneficiaries of the Federal Grant

Agreements in issue, then the rights of the Petitioners

are no greater than the rights of the contracting par-

ties. The only remedies in the Grant Agreements in

issue are the termination of funds by the grantor and

possible enforcement of performance obligations. It is

elementary law that a third party can have no greater

rights than those held by the contracting parties. Deal

v. Chemical Construction Company, 99 Ga. App. 413,

108 S.E. 2d 746 (1959); Simmons v. Western Assur-

ance Company, 205 F.2d 815 (5th Cir. 1953), Thus, the

rights accorded the contracting parties are not suffici-

ent basis for the maintenance of the present death,

personal injury and property damage actions.

Moreover, no private cause of action should be im-

plied from either the silent Grant Agreements or the

silent enabling legislation. Cort v. Ash, 422 U.S. 66, 95

S.Ct. 2080, 45 L. Ed. 2d 26 (1975). Petitioners’ asser-

tion of the applicability of the decision in City of

11

Inglewood v. City of Los Angeles, 451 F.2d 948 (9th

Cir. 1972), is clearly misplaced, as that case was a class

action in the nature of an eminent domain or ‘‘taking”’

action, as it related to noise problems, and applying

those principles to the facts at bar would be inappro-

priate. As for particular decisions in the aviation area

which did not create private causes of action, see

Moungey v. Brandt, 250 F. Supp. 445 (W.D. Wis.

1966); Rosdail v. Western Aviation Company, Inc.,

297 F. Supp. 681 (D. Colo. 1969) ; Moody v. McDaniel,

190 F. Supp. 24 (N.D. Miss. 1960); Morrison v. Jack

Richards Aircraft Company, 328 F. Supp. 580 (W.D.

Okla. 1971); Rogers v. Ray Gardner Flying Service,

Tnc., 435 F. 2d 1389 (5th Cir. 1970); MeCord v. Dirié

Aviation Corp., 450 F.2d 1129 (10th Cir. 1971) ; Polan-

sky v. Transworld Airlines, Inc., 523 F.2d 332 (3rd

Cir. 1975). (as well as the decisions cited by Circuit

Judge Dyer).

V.

REASONS FOR DENYING THE PETITIONS FOR A

WRIT OF CERTIORARI

Respondent DE.AALB COUNTY, GEORGIA, after

briefly acquainting this Court with its position on the

legal issues raised by the several Petitions pending be-

fore this Court, hereby sets forth its reasons why the

Petitions should be denied:

1,

First and foremost, the opinion and judgment of the

Honorable William C. O’Kelley, United States District

Judge, Northern District of Georgia, Atlanta Division

and of the United States Court of Appeals for the

Fifth Circuit, are correct, as a matter of law.

12

2.

The opinion and judgment of District Judge

O’Kelly and of the Fifth Circuit Court of Appeals, is

clearly consistent with and supported by numerous

Supreme Court of Georgia and Court of Appeals of

Georgia decisions, cited in the earlier portions of this

Brief. Moreover, each particular legal issue raised in

the subject Petitions has been recently reviewed by

the Appellate Courts of Georgia and adjudged against

Petitioners’ position herein.

3.

The opinion and judgment of District Judge

O’Kelley and of the Fifth Cireuit Court of Appeals is

clearly consistent with and supported by a multitude

of decisions of this Court and other Federal Courts,

several of which have been previously cited in this

Brief.

4,

Respondent further contends that with this Court’s

recent unanimous decision in l/nited States v. Orleans,

— U.S. — 96 8S. Ct. 1971, 48 L. Ed. 2d 390 (1976), the

issues that could be brought before this Court in the

subject Petitions, are resolved and, therefore, are with-

out significance.

D.

Respondent lastly contends that no significant or

unique questions surrounding either the Federal Con-

stitution or Constitution of Georgia are properly

brought before this Court or are properly before this

13

Court, requiring any substantative resolution by this

Court.

WENDELL K. WILLARD

Harvey, WILLARD & ELLiorr

125 Trinity Place

Decatur, Georgia 30030

MraApE Burns

F. Cray BusH

Lone, WEINBERG, ANSLEY & WHEELER

3000 Equitable Building

Atlanta, Georgia 30303

Of Counsel for Defendants,

DeKalb County, Georgia