Petition for Writ of Certiorari — Robinson v. Georgia Department of Transportation

No. | OCT 19 1992

DEEICE OF THE CLERK

In The

Supreme Court of the Urfited States

October Term, 1992

”

HATTIE E. ROBINSON AND LAMAR GLOVER,

Petitioners,

vs.

GEORGIA DEPARTMENT OF TRANSPORTATION,

Respondents.

.

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

¢

PETITION FOR A WRIT OF CERTIORARI

*

JerFREY O. BRAMLETT*

P. RicHARD GAME

BONDURANT, MIxson & ELMORE

39th Floor IBM Tower

1201 West Peachtree Street, N.W.

Atlanta, Georgia 30309

(404) 881-4100

Counsel for Petitioners

*Counsel of Record

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

OR CALL COLLECT (402) 342-2831

| A

QUESTION PRESENTED

Does the Eleventh Amendment immunize Georgia’s

politically autonomous, fiscally independent Department

of Transportation from suit by Georgia citizens over fed-

eral constitutional claims in federal court?

il

TABLE OF CONTENTS

Page

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CONSTITUTIONAL PROVISION INVOLVED....... 2

SIATEMGINS GW TUR COND. sco vivesevcvansatann 2

REASONS FOR GRANTING THE WRIT ........... 10

I. The Constitutional Issue Is Important........ 10

Il. The Court of Appeals’ Decision Conflicts in

Principle with the Fifth Circuit’s Application of

Eleventh Amendment Doctrine to State-Cre-

ated Entities with Fiscal Independence....... 12

CURL LLASIOIEN 60 as 6st ice cake oohnaen eee ees 14

APPENDIX -

Appendix I — Judgment of United States Court of

Appeals for the Eleventh Circuit entered July

Bly BOO hic 6 vv 0s0860s 00008 eee App. 1

Appendix II — Robinson v. Georgia Department of

Transportation, 966 F.2d 637 (11th Cir. 1992) ..App. 3

Appendix III - Order of the District Court entered

ply 11, 2998 oss écenecting eee eee App. 11

Appendix IV — Order of the District Court entered

jerwanty 3, TFA. «2s eiackcexavsdeceny eee een App. 15

Appendix V — October 19, 1978 Internal Memoran-

dum of GDOT Employee James D. Mathis Re:

Possiite Cemnmiery Tie: ou. 6 sees Gana tenes App. 17

Appendix VI — Pertinent Georgia Constitutional

Provisions arid statutes .. 2... ccs ccccuwesses App. 20

iii

TABLE OF AUTHORITIES

Page

Cases

Atascadero State Hospital v. Scanlon, 473 U.S. 234

SS AS A ey ere ee eee ee eee 11

Birdine v. Moreland, 579 F.Supp. 412 (N.D. Ga.

Et na i heey HK RGR AASAA ADEA KARR ARES OM 8

Chisholm v. Georgia, 2 Dall. 419, 1 L.Ed. 440 (1793) .... 10

Florida Dept. of Health & Rehab. Servs. v. Florida

Nursing Home Ass‘n., 450 U.S. 147 (1981).......... 10

Hans v. Louisiana, 134 U.S. 1 (1890) ....... 9, 10, 11, 12

McDonald v. Board of Mississippi Levee Comm'rs, 832

EG oe ak bk 4s Wn oe 804 v8 6o 12, 13

Papasan v. Allain, 478 U.S. 265 (1986)................ 11

Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989)..... 11

Robinson v. Department of Trans. (Robinson I), 185

ioe. ADD. Se7, 304 5.6.26 SOE (1968)................ 8

Robinson v. Department of Trans. (Robinson II), 195

Ga. App. 594, 394 5.6.20 590 (1990). ............... 8

Walker v. Georgia Power Co., 177 Ga. App. 493, 339

RY ee ee 3

CONSTITUTIONS

re 5

ee oa anak ae wens sstwe be eeeauee 3

iv

TABLE OF AUTHORITIES - Continued

Page

STATUTES

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ak ee FE eS Se ne re er ee 4

ata ce Te ee Perr arr ere sre 7

ee Pe errr er rer rr ere ee 7

CA Aoi Se BIS 6s whwaees suc eckeSaaatteks savas 7

OTHER AUTHORITIES

Amar, Of Sovereignty And Federalism, 96 Yale L.]J.

gy Ne Pe rrr rer fe Ter ree 11

Fletcher, A Historical Interpretation Of The Eleventh

Amendment: A Narrow Construction Of An Affir-

mative Grant Of Jurisdiction Rather Than A Prohi-

bition Against Jurisdiction, 35 Stan. L. Rev. 1033

(RE ds GAwenecu luc news Cha ceknn cs ches une eee takes: 11

Gibbons, The Eleventh Amendment And State Sover-

eign Immunity: A Reinterpretation, 83 Colum. L.

eg RR eee or ee eer eer TT er 11

Nowack, The Scope Of Congressional Power To Cre-

ate Causes Of Action Against State Governments

And The History Of The Eleventh And Fourteenth

Amendments, 75 Colum. L. Rev. 1413 (1975) ....... 11

Tribe, Intergovernmental Immunities In Litigation,

Taxation, And Regulation: Separation Of Powers

Issues And Controversies About Federalism, 89

eee | Pe ree eee 12

|

*

In The

Supreme Court of the United States

October Term, 1992

+

HATTIE E. ROBINSON AND LAMAR GLOVER,

Petitioners,

VS.

GEORGIA DEPARTMENT OF TRANSPORTATION,

Respondents.

¢

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

4

PETITION FOR A WRIT OF CERTIORARI

¢

Petitioners Hattie E. Robinson and Lamar Glover

respectfully petition for a writ of certiorari to review the

decision of the United States Court of Appeals for the

Eleventh Circuit in this case.

+

OPINIONS BELOW

The Judgment of the Court of Appeals is reprinted as

Appendix I. The opinion of the Court of Appeals is

reported at 966 F.2d 637 and is reprinted as Appendix II

1

a

to this Petition. The Order of the District Court is

reprinted as Appendix III.

JURISDICTION

The judgment of the Court of Appeals was entered

on July 20, 1992. The jurisdiction of this Court rests on 28

U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

This case involves the Eleventh Amendment to the

United States Constitution which provides:

The judicial power of the United States shall not

be construed to extend to any suit in law or

equity, commenced or prosecuted against one of

the United States by citizens of another state, or

by citizens or subjects of any foreign state.

¢

STATEMENT OF THE CASE

1. Statement of the Facts

Gilbert Cemetery lies south of downtown Atlanta at

‘he present-day intersection of I-75 and Cleveland Ave-

aue. In the mid-1800’s, the owner of the surrounding land

(J.S. Gilbert) set aside a one acre plot as a burial site for

his slaves. Thereafter, as slavery ended in Georgia (and

the custom of racially segregated burial grounds contin-

ued), black families from the surrounding community

continued to bury their dead in Gilbert Cemetery. Burials

continued there into the 1950’s.

Mrs. Robinson and Mr. Glover are citizens and resi-

dents of the State of Georgia and of the United States.

Mrs. Robinson’s grandmother (Hattie Blake), grandfather

(Rev. James Blake), and aunt (Pearl Blake Walker) are

buried in Gilbert Cemetery. Mr. Glover’s grandfather

(Dave Glover) and brother (Young Glover) are buried in

Gilbert Cemetery. Under Georgia law, Mrs. Robinson and

Mr. Glover owned rights of easement in the real property

where Gilbert Cemetery lay. These burial easements are

compensable interests in real property under Georgia

law.}

The Georgia Department of Transportation (“GDOT”)

is a public entity under the control of the State Transpor-

tation Board, a body created by the Georgia Constitu-

tion.* The Transportation Board is by design politically

1 Walker v. Georgia Power Co., 177 Ga. App. 493, 339 S.E.2d

728 (1986).

2 Ga. Const. art. 4, § 4, J1 provides:

(a) There shall be a State Transportation Board

composed of as many members as there are congres-

sional districts in the state. The member of the board

from each congressional district shall be elected by a

majority vote of the members of the House of Repre-

sentatives and Senate whose respective districts are

embraced or partly embraced within such congres-

sional district meeting in caucus. The members of the

board in office on June 30, 1983, shall serve out the

remainder of their respective terms. The General

inde’. 2ndent of the executive and legislative branches of

the State of Georgia.* The Board is composed by state

constitutional mandate of local representatives from each

of Georgia’s ten federal congressional districts.

The Board selects GDOT’s Commissioner, who auton-

omously runs GDOT. He reports to the Board, not to the

governor nor to the legislature.4 The Commissioner exer-

cises power to choose and pay to GDOT employees with-

out regard to state pay scales or state government

constraints.5 The Commissioner exercises the power of

eminent domain free from supervision by the executive

or legislative branches of the State. GDOT has the

authority to sue and be sued in its own name.” GDOT has

the authority to acquire, hold and dispose of property in

its own name.®

Assembly shall provide by law the procedure for the

election of members and for filling vacancies on the

board. Members shall serve for terms of five years

and until their successors are elected and qualified.

(b) The State Transportation Board shall select a

commissioner of transportation, who shall be the

chief executive officer of the Department of Transpor-

tation and who shall have such powers and duties as

provided by law.

3 The Georgia Constitution classifies the Transportation

Board among “Constitutional Boards and Commissions,” inde-

pendent agencies outside the ambit of direct execution or legis-

lative control. Ga. Const. art. 4.

4 O.C.G.A. § 32-2-41(a).

5 O.C.G.A. § 32-2-41(b)(1).

6 O.C.G.A. § 32-2-41(a).

7 O.C.G.A. § 32-2-5.

8 O.C.G.A. § 32-2-2(a)(8).

GDOT operates on funds earmarked by Georgia’s

Constitution for highway purposes and insulated by con-

stitutional fiat from the legislative appropriations process

or executive control.? These funds are under the exclusive

control and supervision of GDOT.1°

In 1981, GDOT took the tract of real property con-

taining Gilbert Cemetery by power of eminent domain. In

the process, GDOT took the easements of Mrs. Robinson

and Mr. Glover. It offered them no compensation for the

° Ga. Const. art. 3, § 9, 6(b) is reprinted in full in Appendix

VI. It provides in pertinent part:

(b) An amount equal to all money derived from motor fuel

taxes received by the state . . . is hereby appropriated for the

fiscal year beginning July 1, of each year following, for all

activities incident to providing and maintaining an adequate

system of public roads and bridges in this state, as authorized

by laws enacted by the General Assembly of Georgia, and for

grants to counties by law authorizing road construction and

maintenance, as provided by law authorizing such grants. Said

sum is hereby appropriated for, and shall be available for, the

aforesaid purposes regardless of whether the General Assembly

enacts a general appropriations Act; and said sum need not be

specifically stated in any general appropriations Act passed by

the General Assembly in order to be available for such pur-

poses. .. . The expenditure of such funds shall be subject to all

the rules, regulations, and restrictions imposed on the expendi-

ture of appropriations by provisions of the Constitution and

laws of this state, unless such provisions are in conflict with the

provisions of this paragraph. . . . [T]he proceeds of the tax

hereby appropriated shall not be subject to budgetary reduc-

tion. In the event of invasion of this state by land, sea, or air or

in case of a major catastrophe so proclaimed by the Governor,

said funds may be utilized for defense or relief purposes on the

executive order of the Governor.

10 O.C.G.A. § 32-2-2(a)(2).

takings. To this day, GDOT has paid no compensation for

these takings.

The real property records of Fulton County have

disclosed the existence and location of Gilbert Cemetery

since at least 1932. When GDOT began planning the

project to expand I-75 into the tract containing Gilbert

Cemetery in the late 1970’s, it discovered the Cemetery’s

existence and its implications. Appendix V, an internal

GDOT memo dated October 19, 1978, contains a lawyer’s

title opinion on the tract stating, in pertinent part:

the title and rights acquired by [a condemnor]

will necessarily be subject to rights of burial

easement in and to that portion of property

acquired, with the rights of ingress and egress to

and from the graves of the parties buried therein

by the relatives of said parties. The public

records do not disclose the names of persons

buried in this cemetery, and we are not

informed as to whether or not the graves are

sufficiently marked to identify the people

therein. Field investigation will be necessary,

therefore, to determine the names of the

unknown heirs-at-law, who would be necessary

parties to any condemnation proceedings. . . .

On November 14, 1978, GDOT conducted a public

environmental impact hearing on the highway expansion

project. At this hearing, Rev. John V. Sorrow testified:

There is a cemetery at Cleveland Avenue and

I-75 North, and it has been covered over. It was

black people in times past, I think. They have

covered over to where you don’t know it, but

there is some graves still there.

On March 26, 1981, GDOT ignored the Cemetery and

the rights of burial easement owners when it filed a

i

condemnation petition to take the Gilbert Cemetery tract.

The petition did not disclose the fact that Gilbert Ceme-

tery lay in the path of the highway expansion. GDOT did

not name any burial easement owner as a condemnee.

GDOT made no effort to identify or to serve these con-

demnees with process in its condemnation action. These

omissions, each of which violates Georgia law governing

GDOT’s exercise of eminent domain power,!! effectively

excluded Mrs. Robinson and Mr. Glover from participa-

tion in the state court condemnation proceeding in which

compensation owed to the owners of interests in the real

property was fixed and paid.

Toward the end of 1981, GDOT construction crews

began work on the highway expansion project at Gilbert

Cemetery. Mrs. Robinson and Mr. Glover and other

affected parties discovered the presence of GDOT bull-

dozers on their loved ones’ graves and immediately

objected. In response to these objections, GDOT notified

the Fulton County Superior Court, for the first time, that

Gilbert Cemetery lay in the path of the highway expan-

sion.

These events triggered an equity proceeding in Ful-

ton Superior Court balancing GDOT’s interests in ongo-

ing highway expansion with the aggregate interests of

11 Georgia requires condemnors to disclose in their con-

demnation petitions “[t]he property or interests to be taken or

damaged,” (O.C.G.A. § 32-3-5(a)(2)) “[d]Jescriptions of the per-

sons or classes of unknown persons whose rights therein are to

be excluded or otherwise affected,” (O.C.G.A. § 32-3-5(a)(4))

and “[s]uch other facts as are necessary for a full understanding

of the cause.” O.C.G.A. § 32-3-5(a)(5).

burial easement owners. This equity proceeding resulted

in a court-approved landscaping plan involving a blue

granite statue of Jesus scrutinized by federal district court

and modified on Establishment Clause grounds.

GDOT’s dispute over monetary compensation with

other individual property owners holding interests in the

tract containing Gilbert Cemetery proceeded to trial and

jury verdict on June 1, 1983. Neither Mrs. Robinson nor

Mr. Glover was ever joined as a party in that action.

Neither was ever served with process by GDOT. Accord-

ingly, burial easement owners, including Mrs. Robinson

and Mr. Glover, did not participate in the Fulton Superior

Court trial over compensation to individual property

owners who suffered a taking.

2. The Decision of the District Court

In April 1984, Mrs. Robinson and Mr. Glover brought

this action seeking enforcement of their federal constitu-

tional right to compensation for the taking of their pri-

vate property. On September 17, 1984, the trial court

stayed this case to permit an exhaustion of state law

remedies.

For six years, Mrs. Robinson and Mr. Glover pursued

state law claims for the uncompensated taking in Georgia

courts. Their efforts were unavailing.'* Neither Mrs. Rob-

inson nor Mr. Glover ever received a hearing on the

12 Birdine v. Moreland, 579 F.Supp. 412 (N.D. Ga. 1983).

13 Robinson v. Department of Transp. (Robinson I), 185 Ga.

App. 597, 364 S.E.2d 884 (1988); Robinson v. Department of Transp.

(Robinson II), 195 Ga. App. 594, 394 S.E.2d 590 (1990).

en

merits of their claims to compensation in the courts of

Georgia. Neither property owner has ever been paid one

penny of compensation.

On August 3, 1990, Mrs. Robinson and Mr. Glover

returned to federal district court and moved to lift the

stay on this action. Over GDOT’s opposition, the trial

court granted this request.'4 Then, on July 11, 1991, on

the motion of GDOT, the trial court dismissed this action

on the theory that Eleventh Amendment immunity barred

suit.!5

3. The Decision of the Court of Appeals

On July 20, 1992, an Eleventh Circuit panel issued its

decision affirming dismissal on Eleventh Amendment

grounds. Bound by Hans v. Louisiana and its progeny

extending Eleventh Amendment immunity to suits by

citizens against their home states, the panel examined

GDOT’s “function and character as determined by state

law.” The panel concluded that, despite Georgia’s consti-

tutional scheme segregating GDOT’s funds from the gen-

eral treasury of Georgia, motor fuel taxes are “state

funds” which render GDOT “dependent on the State for

its funds.” 966 F.2d at 640. The panel opinion was silent

on the Eleventh Amendment implications of GDOT’s

autonomy from control by either the executive or the

legislative branch of Georgia government.

e

14 The trial court’s order of January 3, 1991 lifting the stay is

attached as Appendix IV.

1S Appendix III.

10

REASONS FOR GRANTING THE WRIT

I. The Constitutional Issue Is Important.

The plain language of the Eleventh Amendment pre-

sents no barrier to suits by Georgia citizens to vindicate

their federal constitutional against their home state.

There is no threat to Georgia sovereignty comparable to

that perceived from Chisholm v. Georgia, 2 Dall. 419, 1

L.Ed. 440 (1793), in haling the state before a jury of its

citizens empanelled by a federal court sitting in Georgia.

The barrier arises, instead, from an elastic, extra-textual

reading of the Eleventh Amendment originating with

Hans v. Louisiana, 134 U.S. 1 (1890). The struggle to define

the contours of this nebulous expansion of Eleventh

Amendment immunity has created a far more severe

burden on the federal judiciary - and far less predic-

tability in applying Eleventh Amendment limits on fed-

eral jurisdiction - than Hans and its progeny ever

resolved.

The members of this Court have written eloquently

on the problems created by Hans.'© The commentators

16 In 1981, Justice Stevens concurred in Florida Dept. of

Health & Rehab. Servs. v. Florida Nursing Home Ass‘n., 450 U.S.

147, 151-55 (1981). He wrote at that time that “the adverse

consequences of adhering to an arguably erroneous precedent

[flowing from Hans v. Louisiana] are far less serious than the

consequences of further unravelling the doctrine of stare

decisis.” 450 U.S. at 155. Four years later, Justice Stevens opined:

[T]he Court has not felt constrained by stare decisis in

its expansion of the protective mantle of sovereign

immunity . . . and additional study has made it abun-

dantly clear that not only Edelman, but Hans v. Louisi-

ana, 134 U.S. 1 (1890), as well, can properly be

characterized as ‘egregiously incorrect.’ 450 U.S. at

11

agree.!” This case presents the Court with an appropriate

opportunity to rectify forthrightly the muddle created by

153. I am now persuaded that a fresh examination of

the Court’s Eleventh Amendment jurisprudence will

produce benefits that far outweigh ‘the consequences

of further unravelling the doctrine of stare decisis’ in

this area of the law.

Atascadero State Hospital v. Scanlon, 473 U.S. 234, 304 (1985)

(Stevens, J. dissenting).

Justice Stevens has hardly been alone on the Court in crit-

icizing the Eleventh Amendment jurisprudence arising from

Hans v. Louisiana. E.g., Atascadero State Hospital v. Scanlon, 473

U.S. at 301-02 (Brennan, J., dissenting) (Hans “rested on miscon-

ceived history and misguided logic”; “[t]he doctrine that has

thus been created is pernicious.”); Papasan v. Allain, 478 U.S.

265, 293 (1986) (Blackmun, J., concurring in part and dissenting

in part) (“Petitioners claim that [the State defendant] breached

legal obligations placed on it by federal law. I agree with Justice

Brennan that the Eleventh Amendment was never intended to

bar such suits.”); Pennsylvania v. Union Gas Co., 491 U.S. 1, 44-45

(1989) (Scalia, J., concurring in part, dissenting in part)

(“[I]nstead of cleaning up the allegedly muddled Eleventh

Amendment jurisprudence produced by Hans, the Court leaves

that in place, and adds to the clutter the astounding principle

that Article III limitations can be overcome by simply exercising

Article I powers.”); 491 U.S. at 57 (O’Connor, J., dissenting) (“a

faithful interpretation of the Eleventh Amendment embodies a

concept of state sovereignty which limits the power of Congress

to abrogate States’ immunity when acting pursuant to the Com-

merce Clause. But that view does not command a majority of the

Court.”).

7 See Fletcher, A Historical Interpretation Of The Eleventh

Amendment: A Narrow Construction Of An Affirmative Grant Of

Jurisdiction Rather Than A Prohibition Against Jurisdiction, 35

Stan. L. Rev. 1033 (1983); Gibbons, The Eleventh Amendment And

State Sovereign Immunity: A Reinterpretation, 83 Colum. L. Rev.

1889 (1983); Amar, Of Sovereignty And Federalism, 96 Yale L.]J.

1425 (1987); Nowack, The Scope Of Congressional Power To Create

re

12

Hans. Petitioners urge the Court to seize this opportunity

to correct an “egregiously incorrect” decision that has

diverted federal judicial resources from the merits resolu-

tion of disputes to chronic tinkering over the parameters

of a doctrine lacking textual support in the Eleventh

Amendment.

II. The Court of Appeals’ Decision Conflicts in Princi-

ple with the Fifth Circuit’s Application of Eleventh

Amendment Doctrine to State-Created Entities with

Fiscal Independence.

In GDOT, Georgia has created a fiscally independent,

politically autonomous public creature with the awesome

power of eminent domain. GDOT is not accountable to

the legislative branch of Georgia government. GDOT is

not accountable to the governor or to the executive

branch of state government. GDOT operates on a consti-

tutionally-earmarked stream of revenue insulated from

legislative or executive control. Its money is segregated

from the general operating funds of the State of Georgia.

Yet GDOT, according to the decision below, is an arm of

the State for Eleventh Amendment purposes.

This erroneous determination conflicts in principle

with McDonald v. Board of Mississippi Levee Comm'rs, 832

F.2d 901 (5th Cir. 1987). In McDonald, the Fifth Circuit

considered and rejected Eleventh Amendment immunity

Causes Of Action Against State Governments And The History Of

The Eleventh And Fourteenth Amendments, 75 Colum. L. Rev. 1413

(1975); Tribe, Intergovernmental Immunities In Litigation, Taxation,

And Regulation: Separation Of Powers Issues And Controversies

About Federalism, 89 Harv. L. Rev. 682 (1976).

13

for Mississippi’s Board of Levee Commissioners. Like

Georgia’s Transportation Board, Mississippi’s Board is

created and removed from the legislature’s control by

state constitutional mandate.1® Like GDOT, the Missis-

sippi Levee Board has the capacity to satisfy judgments

from funds segregated from the state treasury, although

the source of funds is an acreage tax fixed and collected

by the Board under authority granted by legislative

enactment.!? Like GDOT, the Mississippi Levee Board

enjoys power to sue and be sued and to hold and use

property in its own name.?° Like GDOT, the Mississippi

Levee Board is not under supervisory control of any state

official, although the Levee Board (unlike GDOT) oper-

ates under a state constitutional mandate to submit

annual reports to the governor.

Distinctions between GDOT and the Mississippi

Levee Board can certainly be drawn, but the conflict in

principle between the Fifth Circuit’s decision in McDonald

and the Eleventh Circuit’s decision here presents a need

for exercise of this Court’s supervisory powers over this

fundamental question of federal court jurisdiction. If the

Court is not inclined to tackle directly the mischief of

Hans, it should at least provide guidance to those who

must reconcile McDonald with the result here.

18 832 F.2d at 906.

a Id.

20 832 F.2d at 908.

14

CONCLUSION

For the foregoing reasons, this Petition for a Writ of

Certiorari should be granted.

Respectfully submitted,

JEFFREY O. BRAMLETT

P. RicHARD GAME

BONDURANT, MIxson & ELMORE

39th Floor IBM Tower

1201 West Peachtree Street, N.W.

Atlanta, Georgia 30309

(404) 881-4100

Counsel for Petitioners

October 19, 1992

App. 1

APPENDIX I

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 91-8731

D.C. Docket No. 1:84-cv-768-MHS

HATTIE E. ROBINSON,

LAMAR GLOVER,

Plaintiffs-Appellants,

versus

GEORGIA DEPARTMENT OF

TRANSPORTATION,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Georgia

(Filed July 20, 1992)

Before TJOFLAT, Chief Judge, ANDERSON, Circuit

Judge, and MORGAN, Senior Circuit Judge.

JUDGMENT

This cause came to be heard on the transcript of the

record from the United States District Court for the

Northern District of Georgia, and was argued by counsel;

CC

App. 2

ON CONSIDERATION WHEREOF, it is now hereby

ordered and adjudged by this Court that the order of the

District Court appealed from in this cause be and the

same is hereby AFFIRMED;

iT IS FURTHER ORDERED THAT plaintiffs-appel-

lants pay to defendant-appellee, the costs on appeal to be

taxed by the Clerk of this Court.

Entered: July 20, 1992

For the Court: Miguel J. Cortez, Clerk

By: David Maland

Deputy Clerk

ISSUED AS MANDATE: AUG 25 1992

App. 3

APPENDIX II

Hattie E. ROBINSON, Lamar Glover,

Plaintiffs-Appellants,

V.

GEORGIA DEPARTMENT OF TRANSPORTATION,

Defendant-Appellee.

No. 91-8731.

United States Court of Appeals,

Eleventh Circuit.

July 20, 1992.

Appeal from the United States District Court for the

Northern District of Georgia.

Before TJOFLAT, Chief Judge, ANDERSON, Circuit

Judge, and MORGAN, Senior Circuit Judge.

ANDERSON, Circuit Judge:

INTRODUCTION

Appellants, Hattie E. Robinson and Lamar Glover

(hereinafter referred to collectively as “appellants”),

sought relief under 42 U.S.C. § 1983 against appellee, the

Georgia Department of Transportation (“GDOT”), for

inverse condemnation of property that was an ancestral

cemetery. GDOT moved to dismiss on the ground that

appellants’ suit was barred under the Eleventh Amend-

ment. The district court granted the motion, and this

appeal ensued.

App. 4

FACTS

In the late 1970’s, GDOT began work on a project to

expand I-75. Part of the land to be used for this project

extended over an old burial site. Appellants are heirs-at-

law of persons buried in the cemetery. Appellants

brought suit under § 1983 for violation of the Fifth and

Fourteenth Amendments for a taking of their property for

public use without payment of compensation.

PROCEDURAL HISTORY

Appellants filed this action on April 18, 1984. GDOT

answered on May 11, 1984. On September 17, 1984, the

trial court stayed the federal proceedings pending pro-

ceedings in state court involving the property. See Robin-

son v. Dep't of Transp., 185 Ga.App. 597, 364 S.E.2d 884

(1988) (“Robinson I”); Robinson v. Dep’t of Transp., 195

Ga.App. 594, 394 S.E.2d 590 (1990) (“Robinson II”). Fol-

lowing the disposition by the state court, appellants

moved to lift the stay on August 3, 1990. On January 3,

1991, the district court lifted the stay and permitted

appellants to supplement the comprlaiz On January 30,

1991, GDOT moved to dismiss. On Ji'y 11, 1991, the

district court granted appellee’s motion o dismiss. In its

order, the district court dismissed because GDOT is

immune under the Eleventh Amendment.

DISCUSSION

A. Eleventh Amendment Immunity

The Eleventh Amendment bars suit in federal court

against a State. The immunity provided by the Eleventh

ee

App. 5

Amendment applies to States and state officials but not to

municipal corporations, counties, or other political subdi-

visions of the State. Mt. Healthy City School Dist. Bd. of

Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50

L.Ed.2d 471 (1977).

We must determine whether GDOT is an “arm of the

State” for Eleventh Amendment purposes. In Fouche v.

Jekyll Island-State Park Auth., 713 F.2d 1518, 1520 (11th

Cir.1983), this court stated:

Whether [an entity] is an arm of the state pro-

tected by the Eleventh Amendment “turns on its

function and character as determined by state

law.” Sessions v. Rusk State Hospital, 648 F.2d

1066, 1069 (5th Cir.1981). Factors that bear on

this determination include the definition of

“state” and “political subdivision,” the state’s

degree of control over the entity, and the fiscal

autonomy of the entity. See Mt. Healthy, supra,

429 U.S. at 280, 97 S.Ct. at 572; United Carolina

Bank v. Board of Regents, 665 F.2d 553 (5th

Cir.1982).

See also Harden v. Adams, 760 F.2d 1158, 1163 (11th Cir.),

cert. denied, 474 U.S. 1007, 106 S.Ct. 530, 88 L.Ed.2d 462

(1985).

1. Definition of State and Political Subdivision

Although Georgia law does not define “State” and

“political subdivision,” see Fouche, 713 F.2d at 1520, some

of the provisions of the Georgia code relating to GDOT

are helpful in determining whether it enjoys Eleventh

Amendment protection. For instance, O.C.G.A.

§ 32-2-2(a)(2) states that GDOT “shall be the state agency

App. 6

to receive and shall have control and supervision of all!

funds appropriated for public road work.” In addition,

O.C.G.A. § 32-2-2(a)(7) states that “[t]he department shall

be the proper agency of the state to discharge all duties

imposed on the state by any act of Congress allotting

federal funds to be expended for public road and other

transportation purposes in this state.”

GDOT cites State Highway Dep't v. Parker, 75 Ga.App.

237, 43 S.E.2d 172 (1947), for the proposition that GDOT

is a state agency. The court in Parker stated the following:

[T]he state highway department is a part of the

sovereign state, an agent or servant of the state,

and it can not be sued without the express con-

sent of the sovereign. We think that there can be

no doubt that the acts of the state highway

department are the acts of the state of Georgia.

43 S.E.2d at 174. Appellants counter that the court in

Parker likened the State Highway Department (the prede-

cessor to GDOT) to a county. Therefore, appellants argue

that if GDOT is like a county, it enjoys no Eleventh

Amendment immunity. See Mt. Healthy, supra, 429 U.S. at

280, 97 S.Ct. at 572 (Eleventh Amendment immunity does

not extend to counties). The analogy of GDOT to a county

in Parker, however, is not dispositive. The Parker court, in

comparing the state highway department to a county, was

discussing the ability of the state highway department to

be sued in the Georgia courts. The state highway depart-

ment, like counties, can be sued in Georgia state courts

only where the State has given its consent. Thus, the

Parker court was not using the county comparison in

order to reach the conclusion that the state highway

department is a political subdivision like counties. In fact,

App. 7

in Huggins v. Georgia Dep't of Transp., 165 Ga.App. 178, 300

S.E.2d 195 (1983) (holding that GDOT, as a state agency,

does not come within the ambit of statutory provision

applying to municipal corporations, counties, or other

political subdivisions of the State), the court expressly

rejected the notion that GDOT is a county, a municipal

corporation, or any other political subdivision of the

State.

2. State's Degree of Control and Fiscal Autonomy

As this court stated in Fouche, “[t]he Eleventh

Amendment protects the sovereignty of the state by pro-

hibiting suits when recovery would be paid from state

funds.” 713 F.2d at 1521 (citing Edelman v. Jordan, 415 U.S.

651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974)). In Harden v.

Adams, 760 F.2d 1158, 1163 (11th Cir.1985), this court

stated that “[w]here the budget of an entity is submitted

to the state for approval, this suggests that the entity is an

agency of the state.” In this case, appellants argue that

GDOT is financially independent from the State because

the statute provides that GDOT “shall be the state agency

to receive and shall have control and supervision of all

funds appropriated for public road work by the state and

activities incident thereto from the net proceeds of motor

fuel tax as provided in Article III, Section IX, Paragraph

VI(b) of the Constitution of Georgia and any other funds

appropriated or provided for by law for such purposes.”

O.C.G.A. § 32-2-2(a)(2). Thus, appellants argue that

GDOT receives the motor fuel tax as provided in the

App. 8

Georgia Constitution without the intervention of the leg-

islature and can spend the funds in its discretion without

any legislative approval.

While GDOT appears to be fiscally autonomous from

the state legislature in the sense that it can spend all the

dedicated funds in its discretion, it does not appear from

the statute that GDOT raises any funds on its own. In

Fouche, this court discussed the ability of the Jekyll

Island-State Park Authority to raise funds. The fact that

the Park Authority could raise funds on its own cut

against finding that it was an arm of the State. 713 F.2d at

1520. This factor is significant in this case. Because GDOT

does not issue bonds or have any mechanism of raising

its own revenues, it remains dependent on the State for

its funds. This fact lends support for the conclusion that

GDOT is an arm of the State.

In addition, in Fouche, despite the fact that the Park

Authority had received no funds from the State for the

period covering the claims at issue, the court concluded

that because any judgment would be paid out of current

state funds, the Eleventh Amendment protected the Park

Authority. 713 F.2d at 1521. In this case, any recovery

would be paid out of state funds because GDOT’s source

of revenue is from the motor fuel tax specified in the

Georgia Constitution. The fact that GDOT can allocate its

funds in its own discretion and without intervention by

the state legislature does not change the fact that these

funds are state funds.

For the foregoing reasons, we conclude that GDOT is

an arm of the State.

App. 9

B. Waiver of Eleventh Amendment Immunity

The Eleventh Amendment bars suits against a State

for alleged deprivations of civil liberties unless the State

has waived its immunity or “unless Congress has exer-

cised its undoubted power under § 5 of the Fourteenth

Amendment to override that immunity.” Will v. Michigan

Dep't of State Police, 491 U.S. 58, 109 S.Ct. 2304, 2309, 105

L.Ed.2d 45 (1989); see also Welch v. Texas Dep't of Highways

and Public Transp., 483 U.S. 468, 107 S.Ct. 2941, 97 L.Ed.2d

389 (1987) (plurality opinion). In Quern v. Jordan, 440 U.S.

332, 341, 99 S.Ct. 1139, 1145, 59 L.Ed.2d 358 (1979), the

Court concluded that Congress, in passing § 1983, did not

intend to override the immunity guaranteed to the States

by the Eleventh Amendment. Thus, GDOT’s Eleventh

Amendment immunity has not been overridden by Con-

gress.

We turn next to appeilants’ argument that Georgia

has waived its immunity in this case. In Atascadero State

Hospital v. Scanlon, 473 U.S. 234, 238 n. 1, 105 S.Ct. 3142,

3145 n. 1, 87 L.Ed.2d 171 (1985), the Supreme Court held

that a State waives its Eleventh Amendment immunity

only if there is “an unequivocal indication that the State

intends to consent to federal jurisdiction that otherwise

would be barred by the Eleventh Amendment.” Appel-

lants argue that GDOT has waived sovereign immunity

because it has consented to suit in state court. See

O.C.G.A. § 32-2-5(a); Ga. Const., Art. I, Sec. 3, J 1(a)

(“private property shall not be taken or damaged for

public purposes without just and adequate compensation

being first paid.”). Appellee counters that the Georgia

Constitution expressly reserves the State’s immunity in

App. 10

federal court! and that, in any event, a waiver in state

court does not constitute a waiver in federal court. See

Atascadero, 105 S.Ct. at 3146 (“Although a State’s general

waiver of sovereign immunity may subject it to suit in

state court, it is not enough to waive the immunity guar-

anteed by the Eleventh Amendment.”). Thus, it is clear in

this case that the State has not waived its immunity.

CONCLUSION?

For the foregoing reasons, the Eleventh Amendment

bars appellants’ § 1983 claim against GDOT. Accordingly,

the judgment of the district court is

AFFIRMED.$

1 See Georgia Const. Art. I, Sec. 2, | 9 which provides:

Sovereign immunity extends to the state and all of its

departments and agencies. .. . No waiver of sovereign

immunity shall be construed as a waiver of any

immunity provided to the state or its departments

and agencies by the United States Constitution.

2 The pending motions concerning supplemental briefs are

granted. The supplemental briefs of both parties have been filed

and considered.

3 Appellants’ other arguments on appeal have no merit and

warrant no discussion.

_—

pale, pels SAA ck el Mie

App. 11

APPENDIX III

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

HATTIE E. ROBINSON and

LAMAR GLOVER,

Plaintiffs CIVIL ACTION

1:84-CV-768-MHS

V.

GEORGIA DEPARTMENT

OF TRANSPORTATION,

Defendant

ORDER

Presently before the Court is defendant’s motion to

dismiss plaintiff’s inverse condemnation claims. For the

reasons stated below, the Court will grant defendant's

motion.

Defendant Georgia Department of Transportation

(“GDOT”) moves to dismiss plaintiffs’ complaint on the

grounds that all claims asserted against it pursuant to 42

U.S.C. § 1983 are barred by sovereign immunity. GDOT

argues that because it is undisputedly an agency of the

State of Georgia, it is entitled to immunity under the

Eleventh Amendment to the United States Constitution.

Recent decisions by the United States Supreme Court

compel the Court to agree with defendant’s reasoning

and dismiss the § 1983 claims.

In Will v. Michigan Department of State Police, 109 S.Ct.

2304 (1989), the Supreme Court held that neither a state

App. 12

nor its officials are “persons” within the meaning of

§ 1983.

Section 1983 provides a federal forum for many

deprivations of civil liberties, but does not pro-

vide a federal forum for litigants who seek a

remedy against a State for alleged deprivations

of civil liberties. The Eleventh Amendment bars

such suits unless the State has waived its immu-

nity . . . or unless Congress has exercised its

undoubted authority under § 5 of the Four-

teenth Amendment to override that immunity.

Id. at 2309 (citations omitted). Plaintiff argues that cou-

pled with the overriding effect of the just compensation

clauses of the Fifth Amendment to the federal constitu-

tion and Georgia’s corresponding state constitutional pro-

vision, Georgia’s express acknowledgement of its

responsibility for inverse condemnation claims supports

a finding of waiver. Waiver of sovereign immunity in

state court, however, does not constitute waiver of the

bar in a federal forum. See Atascadero State Hospital v.

Scanlon, 473 U.S. 234, 241 (1985). Without express provi-

sion to the contrary by the State, the mere existence of the

Fifth Amendment takings clause does not constitute a

waiver of Georgia’s Eleventh Amendment Immunity. Id.

Accordingly, the Court GRANTS defendant’s motion

to dismiss plaintiff’s § 1983 claims.

1 Plaintiffs suggest that to the extent that the Court finds

Will a bar to this case against GDOT, its was a narrow 5-4

decision and, “with all due respect, wrongly decided.” The

Court’s possible agreement with plaintiffs’ assessment of the

limitation Will places on civil rights actions, however, does not

empower the Court to ignore clearly established precedent.

App. 13

IT IS SO ORDERED, this 10th day of July, 1991.

/s/ Marvin H. Shoob

Marvin H. Shoob, Judge

United States District Court

Northern District of Georgia

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

Hattie E. Robinson and :

Lamar Glover, JUDGMENT IN A

Plaintiff, : CIVIL CASE

V Case Number:

1:84-cv-768-MHS

Georgia Department of

Transportation,

Defendant,

oO eee

| DECISION BY COURT. This action came for consider-

ation before the Court. The issues have been considered

and a decision has been rendered, having granted defen-

dant’s motion to dismiss,

IT IS ORDERED AND ADJUDGED that the plaintiffs,

Hattie E. Robinson and Lamar Glover, take nothing, that

the action be dismissed, and that the defendant, Georgia

Department of Transportation, recover from the plaintiffs

it’s cost of action.

App. 14

Date: July 11, 1991

LUTHER D. THOMAS, Clerk

/s/ Kevin Moeggenberg

Deputy Clerk

Filed and Entered

in the Clerk’s Office

July 11, 1991

LUTHER D. THOMAS, Clerk

By: /s/ Kevin Moeggenberg

Deputy Clerk

App. 15

APPENDIX IV

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

HATTIE E. ROBINSON and

LAMAR GLOVER,

Plaintiffs CIVIL ACTION

id 1:84-cv-768-MHS

GEORGIA DEPARTMENT

OF TRANSPORTATION,

Defendant

ORDER

(Filed Jan. 3, 1991)

Presently before the Court is defendant’s motion to

lift the stay entered by this Court on September 17, 1984,

and to supplement their complaint. Defendant contends

that plaintiffs have failed to show good cause for the

reopening of this action. While the road of this litigation

has been long and arduous, plaintiffs are entitled to a

resolution of their claims on the merits. The Court will

not penalize plaintiffs, as defendant requests, for their

inability to obtain relief in state court. Accordingly, the

Court GRANTS plaintiffs’ motion to lift the stay of this

action and GRANTS plaintiffs’ request to supplement

their complaint.

App. 16

IT IS SO ORDERED, this 3rd day of January, 1991.

/s/ Marvin H. Shoob

Marvin H. Shoob, Judge

United States District Court

Northern District of Georgia

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App. 20

APPENDIX VI

Ga. Const. art. 3, § 9, J 6(b)

An amount equal to all money derived

from motor fuel taxes received by the state

in each of the immediately preceding fiscal

years, less the amount of refunds, rebates,

and collection costs authorized by law, is

hereby appropriated for the fiscal year

beginning July 1, of each year following, for

all activities incident to providing and

maintaining an adequate system of public

roads and bridges in this state, as autho-

rized by laws enacted by the General

Assembly of Georgia, and for grants to

counties by law authorizing road construc-

tion and maintenance, as provided by law

authorizing such grants. Said sum is hereby

appropriated for, and shall be available for,

the aforesaid purposes regardless of

whether the General Assembly enacts a gen-

eral appropriations Act; and said sum need

not be specifically stated in any general

appropriations Act passed by the General

Assembly in order to be available for such

purposes. However, this shall not preclude

the General Assembly from appropriating

for such purposes an amount greater than

the sum specified above for such purposes.

The expenditure of such funds shall be sub-

ject to all the rules, regulations, and restric-

tions imposed on the expenditure of

appropriations by provisions of the Consti-

tution and laws of this state, unless such

provisions are in conflict with the provi-

sions of this paragraph. And provided,

however, that the proceeds of the tax hereby

App. 21

appropriated shall not be subject to bud-

getary reduction. In the event of invasion of

this state by land, sea, or air or in case of a

major catastrophe so proclaimed by the

Governor, said funds may be utilized for

defense or relief purposes on the executive

order of the Governor.

Ga. Const. art. 4,§ 4,71

(a) There shall be a State Transporta-

tion Board composed of as many members

as there are congressional districts in the

state. The member of the board from each

congressional district shall be elected by a

majority vote of the members of the House

of Representatives and Senate whose

respective districts are embraced or partly

embraced within such congressional district

meeting in caucus. The members of the

board in office on June 30, 1983, shall serve

out the remainder of their respective terms.

The General Assembly shall provide by law

the procedure for the election of members

and for filling vacancies on the board. Mem-

bers shall serve for terms of five years and

until their successors are elected and quali-

fied.

(b) The State Transportation Board

shall select a commissioner of transporta-

tion, who shall be the chief executive officer

of the Department of Transportation and

who shall have such powers and duties as

provided by law.

aE. e

App. 22

O.C.G.A. § 32-2-2. Powers and duties of department

generally.

(a) The powers and duties of the depart-

ment, unless otherwise expressly limited by law,

shall include but not be limited to the following:

(1) The department shall plan, desig-

nate, improve, manage, control, construct,

and maintain a state highway system and

shall have control of and responsibility for

all construction, maintenance, or any other

work upon the state highway system and all

other work which may be designated to be

done by the department by this title or any

other law. However, on those portions of

the state highway system lying within the

corporate limits of any municipality, the

department shall be required to provide

only substantial maintenance activities and

operations, including but not limited to

reconstruction and major resurfacing, recon-

struction of bridges, erection and mainte-

nance of official department signs, painting

of striping and pavement delineators, fur-

nishing of guardrails and bridge rails, and

other major maintenance activities; and, fur-

thermore, the department may by contract

authorize and require any rapid transit

authority created by the General Assembly

to plan, design, and construct, at no cost to

the department and subject to the depart-

ment’s review and approval of design and

construction, segments of the state highway

System necessary to replace those portions

of the system which the rapid transit

authority and the department agree must be

relocated in order to avoid conflicts

App. 23

between the rapid transit authority’s facili-

ties and the state highway system;

(2) Except for appropriations to autho-

rize the issuance of general obligation debt

for public road work, or to pay such debt,

the department shall be the state agency to

receive and shall have control and supervi-

sion of all funds appropriated for public

road work by the state and activities inci-

dent thereto from the net proceeds of motor

fuel tax, as provided in Article III, Section

IX, Paragraph VI(b) of the Constitution of

Georgia and any other funds appropriated

or provided for by law for such purposes or

for performing other functions of the

department. If the Generai Assembly fails to

appropriate all of the net proceeds of the

motor fuel tax to the department, to the

State of Georgia General Obligation Debt

Sinking Fund, and to counties for public

road work and activities incident thereto,

any such unappropriated part of such

funds, exclusive of those proceeds required

by law to be provided as grants to counties

for the construction and maintenance of

county roads, shall be made available to the

department by the director of the Fiscal

Division of the Department of Administra-

tive Services, notwithstanding any provi-

sions to the contrary in Part 1 of Article 4 of

Chapter 12 of Title 45, the “Budget Act”;

(3) The department shall provide for

~ surveys, plans, maps, specifications, and

other things necessary in designating,

(i

App. 24

supervising, locating, abandoning, relocat-

ing, improving, constructing, or maintain-

ing the state highway system or any part

thereof, or any activities incident thereto, or

in doing such other work on public roads as

the department may be given responsibility

for or control of by law;

(4) The department shall reimburse

the Department of Law for expenses

incurred when the Attorney General of

Georgia assigns any assistant attorney gen-

eral or any deputy assistant attorney gen-

eral to perform specific legal services in

connection with the validation of any bonds

as authorized by Code Section 45-15-16 or

in connection with contract lawsuits and the

acquisition of rights of way for any project

on the state highway system constructed or

to be constructed by the department and

when such services are designated by the

Attorney General to include specific items

of legal services involving the trial or prepa-

ration for trial of individual condemnation

cases, contract lawsuits, and related matters

on such project or projects, or a group or

series of condemnation cases, contract law-

suits and related matters in connection with

a specific project or projects; provided, how-

ever, that no such reimbursement shall be

made until the Attorney General has sub-

mitted a statement of the expenses of such

legal services to the department, which

statement shall include the name of the

assistant attorney general performing such

services, the items of legal services per-

formed and the cost thereof, and, further,

that no reimbursement shall be made for the

App. 25

expenses of legal services for contract law-

suits unless such services had the advance

approval of the commissioner;

(5) The department shall have the

authority to negotiate, let, and enter into

contracts with the Georgia Highway

Authority, the State Tollway Authority, any

person, any state agency, or any county or

municipality of the state for the construc-

tion or maintenance of any public road or

any other mode of transportation or for the

benefit of or pertaining to the department

or its employees in such manner and subject

to such express limitations as may be pro-

vided by law;

(6) The department shall have the

authority to negotiate and enter into recip-

rocal agreements and contracts with other

states or agencies or subdivisions thereof

concerning public roads and other modes of

transportation and activities incident

thereto;

(7) The department shall be the proper

agency of the state to discharge all duties

imposed on the state by any act of Congress

allotting federal funds to be expended for

public road and other transportation pur-

poses in this state. The department shall

have the authority to accept and use federal

funds; to enter into any contracts or agree-

ments with the United States or its agencies

or subdivisions relating to the planning,

financing, construction, improvement, oper-

ation, and maintenance of any public road

or other mode or system of transportation;

and to do all things necessary, proper, or

App. 26

expedient to achieve compliance with the

provisions and requirements of all applica-

ble federal-aid acts and programs. Nothing

in this title is intended to conflict with any

federal law; and, in case of such conflict,

such portion as may be in conflict with such

federal law is declared of no effect to the

extent of the conflict;

(8) The department shall have the

authority to exercise the right and power of

eminent domain and to purchase, exchange,

sell, lease, or otherwise acquire or dispose

of any property or any rights or interests

therein for public road and other transpor-

tation purposes or for any activities incident

thereto, subject to such express limitations

as are provided by law;

(9) The department and its authorized

agents and employees shall have the

authority to enter upon any lands in the

state for the purpose of making such sur-

veys, soundings, drillings, and examina-

tions as the department may deem

necessary or desirable to accomplish the

purposes of this title; and such entry shall

not be deemed a trespass, nor shall it be

deemed an entry which would constitute a

taking in a condemnation proceeding, pro-

vided that reasonable notice is given the

owner or occupant of the property to be

entered and that such entry shall be done in

a reasonable manner with as little inconve-

nience as possible to the owner or occupant

of the property.

(10) In locating, relocating, construct-

ing, improving, or maintaining any road on

App. 27

the state highway system, the department

shall have the authority to control or limit

access thereto, including the authority to

close off or regulate access from any part of

any public road on a county road system or

municipal street system to the extent neces-

sary in the public interest;

(11) The department shall have the

authority to construct and to perform sub-

stantial maintenance of public roads within

the boundaries of state parks and on main

access roads leading into such parks;

(12) (A) The department shall have

the authority to formulate, promulgate, and

enforce rules and regulations setting mini-

mum safety standards for bridges on fed-

eral-aid public roads and to inspect and

close any bridge on any such public road

which does not comply with the minimum

standards set by the department and which

the department determines is unsafe for

public travel. No new bridge shall be con-

structed on any such public road without

there first having been obtained a permit for

its construction from the department, such

permit to be issued only where the pro-

posed bridge will meet the minimum stan-

dards set by the department.

(B) The department may inspect

and determine the maximum load, weight,

and other vehicular dimensions which can

be safely transported over each bridge on

the state highway system and may post on

each such bridge a legible notice showing

such maximum safe limits. It shall be

unlawful for any person to haul, drive, or

App. 28

bring onto any bridge any vehicle, load, or

weight which in any manner exceeds the

maximum limits so ascertained and posted

on such bridge;

(13) The department shall have the

authority to establish, maintain, and operate

ferries as part of a public road and to autho-

rize and issue permits for any state agency,

any county or municipality, or any private

person to establish, maintain, and operate

ferries as part of a public road whenever, in

the discretion of the department, such fer-

ries are reasonably necessary and in the best

interest of the public. All such ferries shall

be operated subject to such rules and regu-

lations as the department may adopt to pro-

tect the public interest, and the

authorization of any such ferry may be

revoked whenever, in the discretion of the

department, its continued operation is no

longer necessary or in the best interest of

the public;

(14) The department shall have those

duties and powers in regard to programs

relating to the Metropolitan Atlanta Rapid

Transit Authority established by subsection

(i) of Section 8 of an Act approved March

10, 1965 (Ga.L. 1965, p. 2243), particularly as

amended by Section 5 of an Act approved

March 16, 1971 (Ga.L. 1971, p. 2092);

(15) The department shall have the

authority and duty relating to the inspec-

tion for violations of motor vehicle licensing

and fuel tax registration requirements and

the department shall report violations of

ii

App. 29

said requirements to the revenue commis-

sioner;

(16) (A) All state aircraft required for

the proper conduct of the business of the

several administrative departments, boards,

bureaus, commissions, authorities, offices or

other agencies of Georgia and authorized

agents of the General Assembly, or either

branch thereof, and department owned air-

fields and their appurtenances shall be man-

aged and maintained by the department.

The cost for the use of such state aircraft

shall be charged by the department to the

using agency. The amount of such charge

shall be determined by the department. The

department shall be authorized to dispose

of any state aircraft and apply the proceeds

derived therefrom to the purchase of

replacement aircraft when the director of

the Office of Planning and Budget shall

authorize such actions, notwithstanding any

other provisions of law to the contrary.

(B) The department shall have all

those powers and duties formerly set forth

in Code Section 50-19-23, which statute

relates to the maintenance and operation of

state aircraft, supervision of their pilots,

and similar matters.

(C) No department, board,

bureau, commission, authority, office, or

other agency of Georgia shall be authorized

to expend state funds to purchase, lease,

rent, charter, maintain, or repair state air-

craft to be used in connection with state

App. 30

business or to employ a person whose offi-

cial duties consist of piloting state aircraft

except the Department of Transportation.

(D) The Department of Adminis-

trative Services shall purchase all aircraft

for the department in the same manner as

other state purchases.

(E) Anything in this title to the

contrary notwithstanding, the State Forestry

Commission, the Department of Natural

Resources, and the Department of Public

Safety may, with the approval of the com-

missioner of transportation, expend state

funds to purchase, lease, rent, charter, main-

tain, or repair special purpose aircraft nec-

essary to conduct the particular business of

said agencies and may employ persons

whose official duties consist of piloting said

aircraft;

(17) (A) Subject to general appro-

priations for such purposes, the department

is authorized to plan for and establish a

long-term policy in regard to the establish-

ment, development, and maintenance of

aviation and aviation facilities in the state;

to promote and encourage the use of avia-

tion facilities of the state for air commerce

in the state, between the state and other

states, and between the state and foreign

countries; to cooperate with, counsel, and

advise pclitical subdivisions of the state and

other departments, boards, bureaus, com-

missions, agencies, or establishments

whether federal, state, local, public, or pri-

vate for the purpose of promoting and

obtaining coordination in the planning for

App. 31

and in the establishment, development, con-

struction, maintenance, and protection of a

system of air routes, airports, landing fields,

and other aviation facilities in the state.

(B) Subject to general appropria-

tions for such purposes, the department is

authorized to construct or to contract with

any state agency, political subdivision,

authority, or person for the construction of

airports and of facilities and appurtenances

incident to their operation. The authority

and limitations of Article 4 of this chapter

pertaining to department contracts and sub-

contracts for construction of public roads

shall likewise apply to such airport con-

struction contracts; provided, however, that

such a contract when negotiated with a

political subdivision shall not be subject to

the limitation of subparagraph (d)(1)(A) of

Code Section 32-2-61 pertaining to the aver-

age bid price for the 60 day period preced-

ing the making of the contract. Article 1 of

Chapter 3 and Chapter 7 of this title shall

apply to the acquisition or disposition of

land or interests therein for such airport

construction.

(C) Subject to general appropria-

tions for such purposes, the department is

authorized to establish air markers at

appropriate locations throughout the state

to facilitate air navigation within the state.

Said markers shall consist of painting on

appropriately located roofs of buildings the

names of towns or cities within which such

buildings are located, such names to be

painted in sufficient size to be legible under

aN

App. 32

good visibility conditions from a height of

at least 3,000 feet. The department is autho-

rized to obtain roof releases from the

owners of buildings upon which air

markers are to be painted or otherwise to

obtain permission from such owners to use

such roofs for such purposes and to pay the

owners reasonable and nominal rentals

therefore if such payment is necessary in

order to obtain the appropriate permission

for the use of such roofs for such purposes.

(D) Subject to general appropria-

tions for such purposes, the department is

authorized to maintain or to control for the

maintenance of department owned or

department leased airports, their facilities,

and appurtenances incident to their opera-

tion. The authority and limitations of Arti-

cle 4 of this chapter pertaining to contracts

and subcontracts for maintenance of public

roads shall likewise apply to such contracts

for the maintenance of such department

owned or department leased airports, pro-

vided that such a contract when negotiated

with a political subdivision shall not be sub-

ject to the limitation of subparagraph

(d)(1)(A) of Code Section 32-2-61 pertaining

to the average bid price for the 60 day

period preceding the making of the con-

tract;

(18) (A) Subject to general appro-

priations and any provisions of Chapter 5 of

this title to the contrary notwithstanding,

the department is authorized within the

limitations provided in subparagraph (B) of

this paragraph to provide to municipalities,

App. 33

counties, authorities, and state agencies

financial support by contract for clearing,

dredging, or maintaining free from obstruc-

tions and for the widening, deepening, and

improvement of the ports, seaports, or har-

bors of this state. (B)(i) Municipalities,

counties, authorities, or state agencies may,

by formal resolution, apply to the depart-

ment for financial assistance provided by

this paragraph.

(ii) The department shall review

the proposal and, if satisfied that the pro-

posal is in accordance with the purposes of

this paragraph, may enter into a contract for

expenditure of funds.

(iii) The time of payment and any

conditions concerning such funds shall be

set forth in the contract.

(C) In addition to subparagraph

(A) of this paragraph and subject to general

appropriations for such purposes, the

department with its own forces or by con-

tract may clear, dredge, or maintain free

from obstruction and may widen, deepen,

and improve ports, seaports, or harbors of

this state; and

(19) Code Sections 32-3-1 and 32-6-115

notwithstanding, the department may by

contract grant to any rapid transit authority

created by the General Assembly, under

such terms and conditions as the depart-

ment may deem appropriate, the right to

occupy or traverse a portion of the right of

way of any road on the state highway sys-

tem by or with its mass transportation facil-

ities. Furthermore, the department may by

App. 34

contract lease to the rapid transit authority,

under such terms and conditions as the

department may deem appropriate, the

right to occupy, operate, maintain, or tra-

verse by or with its mass transportation

facilities any parking facility constructed by

the department. Notwithstanding Code Sec-

tion 48-2-17, all net revenue derived from

the lease shall be utilized by the department

to offset the cost of constructing any park-

ing facility. Regardless of any financial

expenditures by the rapid transit authority,

no right of use or lease granted under this

paragraph shall merge into or become a

property interest of the rapid transit author-

ity. Upon the transfer of the title of the mass

transportation facilities to private owner-

ship or upon the operation of the rapid

transportation facilities for the financial

gain of private persons, such rights granted

by the department shall automatically ter-

minate and all rapid transportation facilities

shall be removed from the rights of way of

the state highway system.

(b) In addition to the powers

specifically delegated to it in this title, the

department shall have the authority to per-

form all acts which are necessary, proper, or

incidental to the efficient operation and

- development of the department and of the

state highway system and of other modes

and systems of transportation; and this title

shall be liberally construed to that end. Any

power vested by law in the department but

not implemented by specific provisions for

the exercise thereof may be executed and

App. 35

carried out by the department in a reason-

able manner pursuant to such rules, regula-

tions, and procedures as the department

may adopt and subject to such limitations as

may be provided by law.

O.C.G.A. § 32-2-41. Powers, duties, and authority of

Commissioner.

(a) As the chief executive officer of the

department, the commissioner shall have direct

and full control of the department. He shall

possess, exercise, and perform all the duties,

powers, and authority which may be vested in

the department by law, except those duties,

powers, and authority which are expressly

reserved by law to the board. When the board is

not in regular or called session, the commis-

sioner shall perform, exercise, and possess all

duties, powers, and authority of the board

except:

(1) Approval of the advertising of

non-negotiated construction contracts;

(2) Approval of authority lease agree-

ments;

(3) Confirmation or rejection of the

recommendation for appointment of the fol-

lowing department officers: the deputy

commissioner; the state highway engineer;

the treasurer and the assistant treasurer of

the department; and

(4) Approval of long-range plans and

programs of the department.

The commissioner shall also have the authority

to exercise the power of eminent domain and to

, }

App. 36

execute all contracts, authority lease agree-

ments, and all other functions except those that

cannot legally be delegated to him by the board.

(b) (1) The commissioner shall have the

authority to employ, discharge, promote, super-

vise, and determine the compensation of such

personnel as he may deem necessary or useful

to the effective operation and administration of

the department except that the commissioner

shall not employ a person who is related within

the second degree of consanguinity to the com-

missioner or any member of the board, provided

that such prohibition shall not be applied so as

to terminate the employment of persons

employed before said prohibited relationship

was created by the subsequent election of a

board member or appointment of a commis-

sioner. The commissioner shall also have the

authority to create, staff, abolish, and regulate

such organizational elements as may be deemed

necessary or proper for the efficient operation of

the department.

(2) The power granted to the commis-

sioner in paragraph (1) of this subsection shall

be subject to and limited by Article I of Chapter

20 of Title 45 establishing a merit system for

department employees, to the extent that the

same or any amendments thereto are now or

may be hereafter applicable to department per-

sonnel.

O.C.G.A. § 32-2-5. Actions by or against department.

(a) The department shall have the author-

ity to bring actions; and it may be sued in such

actions as are permitted by law. In addition, the

ieee

App. 37

department may adjust and make settlement of

any and all claims presented to it under oath.

(b) All actions brought ex contractu by or

against the department shall be brought in a

county where any part of the work is to be or

has been performed. All other actions by or

against the department shall be brought in the

county in which the cause of action arose. Ser-

vice upon the department shall be sufficient by

serving a second original process issued from

the county where the action is filed upon the

commissioner personally or by leaving a copy of

the same in the office of the commissioner in the

Department of Transportation Building, Atlanta,

Georgia.

O.C.G.A. § 32-3-5. Contents of condemnation petition.

(a) The petition referred to in Code Section

32-3-4 shall set forth:

(1) The facts showing the right to con-

demn;

(2) The property or interests to be

taken or damaged;

(3) The names and residences of the

persons whose property or interests are to be

taken or otherwise affected, so far as known;

(4) Descriptions of the persons or

classes of unknown persons whose rights

therein are to be excluded or otherwise affected;

(5) Such other facts as are necessary

for a full understanding of the cause; and

App. 38

(6) A prayer for the judgment of the

court in accordance with Code Section 32-3-13

or 32-3-19.

(b) If any of the persons referred to in the

petition are, so far as may be known, minors or

under disability, that fact shall be stated.