Johnson v. Fayette County

HUNSTEIN, Presiding Justice.

The Fayette County Marshal’s Department (“FCMD”) was created in 1983 when the County, acting through its Board of Commissioners, adopted Section 2-4 of the Fayette County Code of Ordinances. In August 2003, the Fayette County Sheriff, appellant Randall Johnson, notified the Board that he would no longer jail persons detained by FCMD marshals based on his belief that the Department was not an authorized county police force. After attempts to resolve the dispute proved unsuccessful, Fayette County filed suit seeking injunctive and declaratory relief, contending that the FCMD is a county police force and that the Sheriff was acting illegally by not accepting prisoners arrested by FCMD marshals. The trial court granted summary judgment to Fayette County, finding that on January 1, 1992 the FCMD was an established, operational, and functional county law enforcement agency with full arrest powers. Johnson appeals from that order, and for the reasons that follow, we affirm in part and reverse in part.

1. OCGA § 36-8-1 (b) grants to each county the power to create a county police force. Pursuant to this authority, prior to 1992 any county could create a county police force by electing or appointing a county police force. Ga. L. 1914, p. 142, § 1. See OCGA § 36-8-1 (a). The General Assembly amended OCGA§ 36-8-1 in 1992, however, to require voter approval of a resolution or ordinance creating a county police force before it can become effective. Ga. L. 1992, p. 324, § 1; OCGA § 36-8-1 (b) (1). OCGA § 36-8-1 (c) includes a “grandfather” clause rendering the referendum requirement of subsection (b) (1) inapplicable “to any county which has created a county police force prior to January 1, 1992, which county police force remains in existence and operational.” Id. at (c).

Johnson contends that the FCMD is not a valid county police force because there was no referendum approving its creation. The County asserts that no referendum was required because the FCMD is a county police force created prior to January 1,1992. To prevail on summary judgment, therefore, Fayette County was required to demonstrate that there was no genuine issue of material fact and that the undisputed facts established that the FCMD is a county police force created prior to January 1, 1992, which remains in existence and operational. OCGA§ 36-8-1 (c). See OCGA§ 9-11-56; Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

It is undisputed that the County, acting by and through its Board of Commissioners and pursuant to the authority of OCGA § 36-8-1, established the FCMD in 1983. At that time, a FCMD marshal was responsible for the enforcement of the laws and ordinances of the county, including but not limited to, county zoning, environmental, and business ordinances. In 1989, the Board adopted Resolution No. 89-07, which by its express language expanded the duties of the previously established FCMD by granting to it the powers of county police generally, including the power of arrest and the power to execute and return warrants and processes, as well as “all the powers of the Sheriff as peace officers in Fayette County.”

The plain language of this resolution, which tracks the language in OCGA § 36-8-5 (general powers of county police), demonstrates that by its adoption the Board intended to create within the FCMD a county police force with full police powers. Although Johnson presented evidence that one Board member may have possessed a contrary intent, he points to no language or ambiguity in the resolution in support of an alternative construction. Where the language of a statute, or as in this case, an ordinance, is clear and does not lead to an unreasonable or absurd result, “ ‘it is the sole evidence of the ultimate legislative intent.’ ” (Footnote omitted.) Ray v. Barber, 273 Ga. 856 (1) (548 SE2d 283) (2001). See Risser v. Thomasville, 248 Ga. 866 (286 SE2d 727) (1982) (applying rules of statutory construction to municipal ordinances). We therefore affirm the grant of summary judgment on the issue of whether the FCMD is a county police force created prior to January 1, 1992.

2. Johnson contends that there remain factual issues regarding whether the FCMD was in operation and existence as a county police force on January 1, 1992. Construing the facts and inferences most favorably to Johnson, as the non-moving party, we agree. See Lau’s Corp., supra, 261 Ga. at 491.

In opposition to the County’s summary judgment motion, Johnson relied on the affidavit testimony of Billy Beckett, the county administrator from 1985 through 2000, and Daniel Lakly, a Fayette County Commissioner from January 1989 until December 1992, both of whom averred that during their tenure the FCMD was only authorized to monitor county property, assist with internal investigations involving county employees, and enforce county ordinances. More specifically, both men stated in their affidavits that during the relevant time period FCMD marshals did not patrol traffic or operate radar devices, did not conduct criminal investigations other than in relation to violations of county ordinances, did not serve warrants or civil process, did not make felony arrests, with the possible exception of one involving a county employee, and the FCMD did not operate as a county police force. This evidence authorizes an inference that the FCMD, although authorized to operate as a county police force on January 1, 1992, was not in operation and existence as such police force as of January 1, 1992. Accordingly, we find the trial court erred in granting summary judgment as to these factual issues.

Judgment affirmed in part and reversed in part.

All the Justices concur, except Melton, J., who concurs in part and dissents in part.