Atlanta Humane Soc. v. Mills
| Decision Date | 03 June 2005 |
| Docket Number | No. A03A2480.,No. A03A2481.,A03A2480.,A03A2481. |
| Citation | 274 Ga. App. 159,618 S.E.2d 18 |
| Parties | ATLANTA HUMANE SOCIETY et al. v. MILLS. Mills v. Atlanta Humane Society et al. |
| Court | Georgia Court of Appeals |
Edward L. Greenblatt, James V. Zito, Lipshutz, Greenblatt & King, Atlanta, for appellants.
Alan I. Begner, Robert M. Adelson, Katherine K. Wood, Begner & Begner, P.C., Atlanta, for appellee.
James Stark, Stacy S. Levy, Decatur, amici curiae.
This is the second appearance of this appeal before this court. The Atlanta Humane Society (AHS) and its director, Bill Garrett, sued Kathi Mills for allegedly defamatory statements made on an internet bulletin board. In Atlanta Humane Society v. Mills, 264 Ga.App. 597, 591 S.E.2d 423 (2003), we relied on our recent decision in Harkins v. Atlanta Humane Society, 264 Ga.App. 356, 590 S.E.2d 737 (2003), to reverse the trial court's judgment on the basis of the strategic lawsuits against public participation (SLAPP) statute, OCGA § 9-11-11.1(b). The Georgia Supreme Court granted certiorari and consolidated both cases for appeal.
In Atlanta Humane Society v. Harkins, 278 Ga. 451, 603 S.E.2d 289 (2004), the Supreme Court affirmed in part and reversed and remanded in part with direction. With respect to the SLAPP issue, the court agreed with us that the trial court could dismiss a claim on a determination that the claim was falsely verified under OCGA § 9-11-11.1(b), but found that evidentiary issues remained for resolution and remanded on that basis. Id. at 456, 603 S.E.2d 289. The court also noted that with respect to Mills, "the remaining enumerations of error regarding the trial court's summary judgment rulings may render the anti-SLAPP issue moot." Id. at 456, 603 S.E.2d 289.
Adopting the approach suggested by the Supreme Court, we affirm the judgment of the trial court in Case No. A03A2480 insofar as it granted summary judgment in favor of Mills on AHS's claims and declared Garrett a limited-purpose public figure, but we reverse the trial court's determination that disputed issues of fact remained with regard to the alleged defamation of Garrett. We do not reach the anti-SLAPP issue, and we therefore dismiss Mills's appeal in Case No. A03A2481 as moot.1
The underlying facts are not in dispute. In November 2001, WSB Television aired a "Whistle Blower 2" series investigating AHS. The series severely criticized AHS's management of Fulton County animal control, particularly its euthanasia policies, its failure to place animals for adoption, and its failure to assist in investigating animal cruelty cases. Garrett was interviewed as part of the series.2
Mills operated an internet animal rescue website known as Kitty Village. After the television series aired, Mills participated in an internet message board discussion of the programs. During that discussion, she made inflammatory statements about AHS and Garrett, including referring to Garrett as "Mr. Kill," stating that he "was not worthy to lick the dog or cat poop off our shoes" and that he was "evil." She relied upon the program's accusations to speculate that AHS policy with regard to euthanasia, adoption, and cruelty investigations was calculated to "maximize profits," and stated that she was withdrawing support for another humane organization led by Garrett "until they get a leader who does not delight in slaughtering pets for fun and profit."
AHS and Garrett filed this action, and Mills answered. Mills moved for summary judgment and also filed a motion to dismiss the complaint as an improperly verified SLAPP (Strategic Lawsuit Against Public Participation) under OCGA § 9-11-11.1. AHS and Garrett moved for partial summary judgment on the issue of liability. The trial court entered a lengthy and detailed order analyzing the parties' contentions and granting partial summary judgment in favor of Mills. While declining to dismiss the action as a SLAPP, the trial court held that AHS as a quasi-governmental entity was barred from bringing a defamation action. The trial court also ruled that Garrett is a limited-purpose public figure who must prove both actual malice and compliance with the retraction statute, OCGA § 51-5-11(a), in order to recover in a defamation action but found that genuine issues of material fact remained with respect to Garrett's claim against Mills. All parties appealed from the trial court's order.
1. We first consider AHS's appeal of the trial court's determination that as a governmental entity it cannot maintain a suit for defamation. The record shows that for approximately 20 years, Fulton County has delegated most if not all of its statutory duties with regard to animal control to AHS. Pursuant to the contract between AHS and the county, which was to remain in effect from year to year unless cancelled by either party, AHS took over the county animal control facility and was delegated to act as the agent of the Fulton County Board of Health and Health Department with respect to public health regulations. These duties included rabies control and the capture and impoundment of animals, issuing dog licenses and collecting license and impoundment fees, and enforcing leash laws, with AHS employees appointed as deputies authorized to issue citations and make arrests.3 In return, AHS received payments from the county to make up the difference between its expenditures and the income AHS received from fee collections. AHS agreed to indemnify and hold the county harmless.
In Cox Enterprises v. Carroll City/County Hosp. Auth., 247 Ga. 39, 273 S.E.2d 841 (1981), the Georgia Supreme Court considered the circumstances under which an entity may be considered a "governmental entity" and thus prohibited from suing for defamation:
We start from the seldom used but well founded rule: Governments and governmental entities cannot maintain an action for libel. Criticism of government is at the very center of the constitutionally protected area of free discussion. No case has been found allowing a government to recover for libel. For good reason, no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence.
(Citations, punctuation and footnote omitted.) Id. at 40, 273 S.E.2d 841. Both parties agree that this decision controls, but they interpret it differently.
In determining whether the Carroll City/County Hospital Authority was a governmental entity, the Supreme Court considered
[f]actors tending to establish the Authority's governmental nature .... [these] include that it is a creature of statute; that it is defined as a "public body corporate and politic"...; that its Board is appointed by the governing body of the relevant political subdivision or subdivisions; that it is tax exempt; that it is deemed to exercise public and essential governmental functions; that it may exercise the power of eminent domain; that [it] receives tax revenues; and that the governing bodies of the relevant political subdivisions have a role in determining the disposition of its property upon dissolution.
(Emphasis in original.) Cox Enterprises, supra at 44, 273 S.E.2d 841. AHS argues that this is a list of requirements to identify all governmental entities, and that failure to meet them demands a finding that it is not a governmental entity for purposes of the rule against defamation actions. We disagree. The language cited by AHS is the Supreme Court's examination of the specific facts applicable to the Carroll City/County Hospital Authority and "tending to establish the Authority's governmental nature." Id. It is not an ironclad list of requirements for each and every case of government delegation of its functions to a private body. In fact, in Cox the hospital authority in question did not fulfill all of the items listed by the Supreme Court, but the court nevertheless determined that it was a governmental entity because it was "merely the way the government has chosen to do its business in this instance." Id. at 45, 273 S.E.2d 841.
In this case, the contract between AHS and the county states in the clearest possible language that AHS will take over virtually all the county's statutory duties with regard to animal control, including deputized law enforcement functions, and will be paid from public funds for so doing. Moreover, in connection with WSB Television's investigation for its series, the Attorney General determined that AHS was subject to the Open Records Act and directed that it produce its records regarding "the public services or functions it performs on behalf of Fulton County." Whether an entity was subject to open records requirements is another factor in Cox tending to establish its governmental nature. Id. at 45, 273 S.E.2d 841.
As the trial court so aptly observed, the AHS
receives in excess of $2,000,000.00 annually in public funds from Fulton County to carry out the County's animal control functions.... Indeed, as the contract between Atlanta Humane Society and Fulton County so clearly and plainly sets forth, Fulton County has even deputized employees of Atlanta Humane Society to assist in carrying out these laws and enforcing governmental regulations. If plaintiff Atlanta Humane Society were not subject to the same types of criticism that governmental entities would be subject to in the performance of these functions, it would frustrate the ability of the general public to complain and otherwise effectuate necessary and desirable change when those services fall below standards which the public demands.
(Footnotes omitted.) We agree with the trial court and affirm the grant of summary judgment against AHS with respect to its claims against Mills.
2. Garrett contends the trial court erred in determining that Garrett is a limited-purpose public figure. We disagree.
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