Johnson v. Randolph County

• Decision Date: 20 November 2009
• Docket Number: No. A09A1468.,A09A1468.
• Citation: 687 S.E.2d 223,301 Ga. App. 265
• Parties: JOHNSON v. RANDOLPH COUNTY et al.
• Court: Georgia Court of Appeals

687 S.E.2d 223

301 Ga. App. 265

JOHNSON v. RANDOLPH COUNTY et al.

No. A09A1468.

Court of Appeals of Georgia.

November 20, 2009.

Maurice L. King, Jr., Albany, for appellant.

Chambless, Higdon, Richardson, Katz & Griggs, Mary M. Katz, Jason D. Lewis, Macon; Perry & Walters, Franklin T. Coleman IV, Albany, for appellees.

PHIPPS, Judge.

Edward Johnson sued Randolph County (the "County"), the Board of Elections of Randolph County (the "BOE"), and board members in their official and individual capacities (the "Board Members"), alleging that they had violated his rights under the United States and Georgia Constitutions and conspired to commit fraud against him by attempting to have his name removed from the ballot in an election for county commissioner. The alleged attempt did not succeed, Johnson's name remained on the ballot, and he was elected. In this appeal, Johnson contends that the trial court erred in: (1) denying his motion for entry of default judgment; (2) granting summary judgment to the defendants; and (3) failing to compel discovery concerning how the Board Members voted in the election. For reasons that follow, we find no error and affirm.

The evidence, viewed in the light most favorable to Johnson,¹ showed the following. Johnson served on the Randolph County Board of Commissioners. In June 2006, in connection with a bid for re-election, Johnson submitted a nomination petition and supporting documentation to the election superintendent, who accepted the petition and documents. Johnson's name was placed on the ballot for the general election. Subsequently, the BOE assumed the role of election superintendent. By letter dated October 25, 2006, the BOE informed Johnson that it was challenging his petition for lack of a required notarization.² Pursuant to OCGA § 21-2-6(b), the BOE scheduled a hearing on its challenge to occur a few days before the November 7 election.

Johnson, who is African-American, believed that the BOE challenged his petition because of his race and his association with a particular local politician.³ In his pleadings and deposition testimony, Johnson alleged that the community had a history of racial strife. He also pointed to the timing of the challenge, which had occurred shortly before the election though his petition had been accepted by the election superintendent months before. And he pointed to the BOE's failure to examine the petition of his white competitor. Johnson also claimed that an unofficial group of citizens within the community, which included all of the individual defendants, had an agenda to keep minority candidates out of office.⁴

On October 31, 2006, Johnson filed suit to prevent the BOE from holding a hearing on the challenge to his petition and removing his name from the ballot. He also sought damages pursuant to 42 USC § 1983 for alleged violations of his rights to vote and to freedom of speech and association, his substantive and procedural due process rights, and his right to equal protection of the law under the United States Constitution. He sought damages for alleged violations of these rights under the Georgia Constitution, as well. And he sought damages for the defendants' alleged conspiracy to commit fraud against him in violation of Georgia law.

On November 2, the court granted Johnson's request for injunctive relief. The election went forward, and Johnson was re-elected. Johnson subsequently sought entry of a default judgment on his remaining claims, which the court denied. The defendants moved for summary judgment, arguing, among other things, that they were immune from suit under federal and state law. The court granted their motion for summary judgment.

1. Johnson contends that he was entitled to entry of a default judgment on his claims under 42 USC § 1983 for violations of his rights under the United States Constitution, on his claims for violations of his rights under the Georgia Constitution, and on his claim for fraud under Georgia law, because the defendants did not timely answer his petition. "Under OCGA § 9-11-55(a), a default exists when an answer is not filed within 30 days after service of the summons and complaint."⁵ The defendants filed an answer within 30 days after service of the summons and petition. Johnson contends that their answer was void because the trial court previously had been divested of jurisdiction over the case when the defendants filed a notice of appeal of the court's order granting Johnson's request for injunctive relief.⁶ But a "notice of appeal supersedes only the judgment appealed; it does not deprive the trial court of jurisdiction as to other matters in the same case not affecting the judgment on appeal."⁷ The judgment from which the defendants appealed addressed only Johnson's request for injunctive relief, preventing the defendants from holding a hearing on Johnson's qualifications based on a finding that Johnson would suffer immediate and irreparable harm if his name was removed from the ballot. The judgment did not address the merits of Johnson's claims for damages based on the defendants' alleged violations of his constitutional rights or their alleged acts of fraud against him. Because those claims were distinct from the injunction appealed, they remained within the trial court's jurisdiction.⁸ Thus, the defendants' answer to those claims was valid and timely, and the court did not err in finding that the defendants were not in default.

2. Johnson contends that the evidence revealed genuine issues of material fact precluding the grant of summary judgment on his various claims.

[T]o prevail at summary judgment the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff's claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial.⁹

We review a grant of summary judgment de novo to determine whether there is a genuine issue of material fact.¹⁰

(a) Claims Brought Under 42 U.S.C. § 1983. Under 42 U.S.C. § 1983, a plaintiff may obtain money damages for violations of his rights under the United States Constitution and federal laws caused by actions taken under color of law. The statute creates no substantive rights, but provides a remedy for the violation of federal rights found elsewhere.¹¹

(i) A local government such as the County

may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.¹²

This rule also applies to local government officials sued in their official capacities.¹³ A plaintiff must prove that the governmental entity or officials worked a constitutional deprivation upon him "pursuant to an impermissible or corrupt policy which is intentional and deliberate."¹⁴

Johnson has pointed to no evidence creating a question of fact on this element of his § 1983 claim. His general allegations that the community had a history of racial strife and that a group of citizens had an agenda to prevent minorities from holding office do not demonstrate an intentional and deliberate policy or custom of the County that led the BOE and its Board Members to challenge his nomination petition or to treat his petition differently from other petitions.¹⁵ The court did not err in granting summary judgment on Johnson's § 1983 claims to the County, the BOE, or the Board Members in their official capacities.¹⁶

(ii) The Board Members assert that they have qualified immunity from the § 1983 claims brought against them in their individual capacities. Qualified immunity protects officials performing discretionary functions from individual claims brought pursuant to 42 U.S.C. § 1983, if their conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."¹⁷ The test for determining entitlement to qualified immunity "is applied by considering the objective reasonableness of the official's actions (irrespective of his subjective beliefs) in light of legal rules which were clearly established at the time the action was taken."¹⁸ The unlawfulness of the action must be apparent to a reasonable official.¹⁹

The Board Members contend that Georgia election law directed their actions. OCGA § 21-2-170(d) required each sheet of Johnson's petition to contain "on the bottom or back thereof the affidavit of the circulator of such sheet, which affidavit must be subscribed and sworn to by such circulator before a notary public." And OCGA § 21-2-171 required the BOE to examine Johnson's petition for compliance with OCGA § 21-2-170 and to "disregard any pages or signatures that [were] not in conformance with the provisions of that Code section,"²⁰ including pages not properly notarized.²¹ OCGA § 21-2-171 further authorized the BOE to summon and interrogate Johnson concerning his petition, to summon and interrogate other witnesses with knowledge relevant to the examination of the petition, and to subpoena any record relevant to the examination.²² And OCGA § 21-2-171 specified: "If the petition fails to comply with the law, it shall be denied."²³ The record reveals that Johnson's petition did not comply with OCGA § 21-2-170 because it lacked the necessary notarization, rendering it facially defective. Given this defect, OCGA § 21-2-171 required the BOE...