Department of Transportation v. City of Atlanta ( 1989 )

Weltner, Justice,

dissenting.

1. I dissent to Division 1 of the opinion. The trial court issued a temporary restraining order that prohibited highway construction, including a prohibition of work on properties not involved in the Parkway dispute. The issue involved in this case is a legal one, it should be resolved as a legal issue. The trial court should be capable of doing so without delay, and without the imposition of equitable restraints. Hence, there being no threat of irreparable damage, the exercise of equitable power was unnecessary and inappropriate.

Decided June 23, 1989. Michael J. Bowers, Attorney General, Roland F. Matson, Senior Assistant Attorney General, Charles M. Richards, Assistant Attorney General, Dow, Lohnes & Albertson, Terrence B. Adamson, Peter C. Canfield, for appellant. Richard N. Hubert, Jr., Marva Jones Brooks, for appellees. Edith Primm, amicus curiae.

2. I dissent also to Division 3 of the opinion, bearing in mind the circumstances of this case. The majority recognizes that a court may not compel mediation, and suggests that if either party determines that no issues can be resolved by mediation, then litigation must proceed. That determination already has been made, however, as is fully apparent from the Department’s appeal.

I am authorized to state that Chief Justice Marshall joins in this dissent, and that Justice Bell joins in its second division.