Whipple v. City of Cordele

• Decision Date: 17 March 1998
• Docket Number: No. A97A2254.,A97A2254.
• Citation: 499 S.E.2d 113,231 Ga. App. 274
• Parties: WHIPPLE v. CITY OF CORDELE et al.
• Court: Georgia Court of Appeals

499 S.E.2d 113

231 Ga. App. 274

WHIPPLE v. CITY OF CORDELE et al.

No. A97A2254.

Court of Appeals of Georgia.

March 17, 1998.

Almand & Wiggins, O. Hale Almand, Eastman, Debra Csikos-Vandrasik, Warner Robins, for appellant.

Roberts, Roberts & Ingram, Guy V. Roberts, Jr., Cordele, for appellees.

SMITH, Judge.

Barbara Whipple brought suit against the City of Cordele and against the Chairman of the City Commission and three other commissioners in their official and individual capacities, seeking a declaration that a local ordinance prohibiting the stabling of horses within the city limits was invalid and unenforceable. She also sought damages pursuant to 42 USC § 1983 for the violation of her federally secured rights and for the taking of her property without just compensation in violation of her rights under the Fifth and Fourteenth Amendments to the U.S. Constitution and the Georgia Constitution. The trial court granted the defendants' motion for summary judgment, and this appeal ensued. We agree with the trial court that Whipple has no claim against these defendants under § 1983 and that Whipple's other claims for damages must fail because she failed to comply with the ante litem notice requirement in OCGA § 36-33-5. We therefore affirm the judgment below. The record shows that in 1993, Whipple built at her residence in the city a facility for stabling several horses. Before doing so, she checked with the city attorney, who informed her that no city ordinance prohibited keeping horses within the city limits, and that only the county Health Department would be involved in regulating the activity. In reliance upon this information, Whipple had the barn constructed and expended additional funds on its maintenance and upkeep. She stabled three horses, moving them from other facilities she had been using.

In October 1994, the city adopted an ordinance that prohibited the keeping of horses in residential areas of the city. The ordinance provides, in pertinent part, as follows: "It shall be unlawful for any person to keep... horses ... temporarily or permanently in the City, except for temporary purposes of licensed sales in non-residential areas, such as but not limited to auction sales.... Nothing in this section shall prohibit a show, carnival, fair or circus licensed by the City for one to six days from displaying or using any such animals in entertainment programs." The effective date of the ordinance was April 1, 1995. After that date, the ordinance was enforced against Whipple and she was forced to move her horses. Whipple brought this action in February 1996.

1. It is our duty to inquire on our own motion into the issue of this Court's jurisdiction. Thibadeau v. Hendon, 221 Ga. App. 258, 471 S.E.2d 52 (1996). In this case, our concern is that the complaint appears to challenge the constitutionality of the ordinance in issue. The complaint alleged it sought "declaratory and injunctive relief" and damages to redress the denial of constitutional rights, the taking of her property without just compensation, inverse condemnation, retroactive application of the ordinance in violation of vested rights, and passage of a general law for application to a specific individual. Although the complaint prayed for a declaration that the ordinance was "invalid, illegal and unenforceable," Whipple on appeal appears to concede that the ordinance is valid as a general law; her contention is that it is invalid as applied to her. The trial court did not rule on the constitutional issue, and Whipple does not enumerate as error the trial court's ruling that the ordinance is valid. We therefore conclude that this appeal is not within the exclusive appellate jurisdiction of the Supreme Court, Ga. Const. of 1983, Art. VI, Sec. VI, Par. II, and we address the merits of Whipple's appeal. See Raskin v. Wallace, 215 Ga.App. 603, 604(1), 451 S.E.2d 485 (1994).

2. As the trial court noted, several valid reasons exist for finding that Whipple's various claims must fail. With the exception of Whipple's claim under 42 USC § 1983, her claims for damages against the city required her to comply with OCGA § 36-33-5(a) by giving ante litem notice within six months after the effective date of the ordinance.¹ OCGA § 36-33-5(b). It is undisputed that no such notice was given, and the trial court properly found that her claims against the city, other than her claim under § 1983, were therefore barred.

3. The city and its officials asserted the defenses of sovereign and official immunity. We agree with the trial court that this, too, bars Whipple's recovery on all but her § 1983 claim. See Davis v. City of Roswell, 250 Ga. 8, 9(1), 295 S.E.2d 317 (1982) (municipality is " person" within meaning of § 1983; supremacy clause of Constitution prevents use of state immunity defense to action under § 1983). Whipple argues that the defendants' actions in enacting the ordinance were administrative rather than legislative because the legislation was "aimed at her specifically." But the record includes no evidence of this allegation or any other support for this argument. Moreover, even if the record were to include evidence showing that the motives of the city commission were suspect when they enacted this ordinance, the U.S. Supreme Court has recently held that local legislators are entitled to absolute immunity in performing their legislative functions, regardless of their motives. Bogan v. Scott-Harris, ___ U.S. ___, 118 S.Ct. 966, ___ L.Ed.2d____ (1998).

4. Whipple contends the trial court erred in determining that her action is not maintainable under 42 USC § 1983. We do not agree. "In order to pursue an action of this nature, a plaintiff must show (1) that he has been deprived of a right secured by the constitution and laws of the United States, and that (2) the defendant acted under color of state law." (Citation and punctuation omitted.) Patterson v. Butler, 200 Ga.App. 657, 661(2)(e), 409 S.E.2d 531 (1991).

Keeping horses is not a fundamental right, and those who do so do not comprise a suspect class. See City of Lilburn v. Sanchez, 268 Ga. 520, 522(2), 491 S.E.2d 353 (1997). The ordinance is therefore examined under the rational basis test, and it is a valid exercise of the city's police power if any plausible or arguable reason supports it. Id. Even if questions exist regarding the wisdom of the ordinance, they are not for the courts but for the city's legislative body to decide. Id. Here, as in Sanchez, the ordinance obviously serves a legitimate public purpose. See id.; Thombley v. Hightower, 52 Ga.App. 716, 720-721, 184 S.E. 331 (1936); Thorpe v. Mayor, etc., of Savannah, 13 Ga.App. 767, 79 S.E. 949 (1913).

Notwithstanding Whipple's unsupported argument to the contrary, retroactive application of such an enactment under a valid exercise of the city's police power would not violate any constitutional prohibition against retroactive statutes unless Whipple had a vested right to keep horses in the city. See Recycle & Recover v. Ga. Bd. of Nat. Resources, 266 Ga. 253, 254(2), 466 S.E.2d 197 (1996). "In the exercise of the police power, the General Assembly is authorized to place restrictions upon land use in order to protect and preserve the natural resources, environment, and vital areas of this state.... An enactment under the police power does not ordinarily violate any constitutional prohibition against retroactive statutes. Nevertheless, our Constitution forbids passage...