*1 Solicitor, McAuliffe, Hadaway, Hinson Charles Solicitor, Assistant for appellant.
Isaacs, Polonsky, Comolli, Comolli & John M. appellee.
Hall, Justice, dissenting. I dissent from the certiorari grant of and reversal of court judgments the trial and the Court of Appeals.
This is a routine search and seizure and for case this I reason find If I grant no reason for the of certiorari. had case, been a member the Court I Appeals of of have voted the dissenting judges with of that court ruling However, reverse of the trial as judge. a I Supreme Court, member of the find no matter of great (J) public concern Rule 36 gravity importance. or Supreme Rules of the Court the State Georgia, 1,1975. effective my December dissenting opinion Jones, Atlanta Coca-Cola Ga. Bottling Co. al.; 32526. POPE v. CITY OF ATLANTA et
vice versa. Justice. Presiding Undercofler, Mrs. Pope wishes to build tennis court on the rear portion of her residence which property borders on the City Chattahoochee River. of Atlanta issued a stop order claiming part work that at least tennis court was within 150 feet of the river the river’s floodplain she could not build court without violating (River Metropolitan River Act), Protection Act L.Ga. amended, p. 128, L. p. Pope Ga. 837. Mrs. brought suit in the federal district claiming statute was unconstitutional on federal grounds. That case was brought dismissed. She then this suit the state court asserting the state constitutional grounds that Act violated her state due process and eminent domain (Code I, § I Ann. Const., I, Art. Sec. Par.
rights, (Code § 2-301), I Ann. and was 2-101); I, Ill, Art. Sec. Par. powers exercise zoning an the state attempt Const., authorities, governing to local delegated (15)). (Code The trial II Ann. XI, IV, Art. Par Sec. the state due case No. 32525 court ruled our *2 by barred res grounds domain were process and eminent due process of the federal judicata by litigation in also court. The trial court held in the federal River Act was an unconstitutional case 32526 that the No. state, validly it but was by to zone attempt ordinance, Atlanta as a City zoning adopted by the trial court Accordingly, it could enforce. which Board Zoning a before the city hearing to hold ordered followed. We reverse appeals These Adjustments. grounds. both holding erred
1. The trial court
process
due
res
of the state
judicata
was
litigation
court
con-
Questions
grounds.
and eminent domain
matters
strictly
Constitution
struction of the State
this state. The construction of
for the
court of
highest
though
provisions,
similar
constitutional
state’s
is not
on this
authority,
binding
persuasive
Duncan,
Harris v.
of its own
construction
Constitution.1
692)
(67
(1951);
v.
Corp.
National Mtg.
SE2d
208 Ga.
(22
v.
Kennemer
Sutiles,
Ga. 768
SE2d
551) (1922).
(113
generally,
SE
State,
on the restrictive under its own may state be more constitution. 1215) (1975). Hass, 714, 719, n.4 (95 420 U. S. SC v. Oregon The doctrine of res prior involves litigation the same by parties on the same matter subject a court of competent jurisdiction as to all issues which were raised or which could have been raised. 110-501; Ann. Code Co., Price Ga. Industrial Realty 132 Ga. App. 556) (1974). Where state claims which "could have
been raised” in the federal
would
litigation
have been
pendent2 had they
court,
beén
to the federal
court,
applying
judicata statute,
its res
use
same rules that
the federal court
have used in
would
determining
whether
pendent
would
exercise
jurisdiction.
the federal court
retained
jurisdiction
pendent
state claims had
been
raised,
then a
subsequent
suit
state court would be
barred
if
judicata;
res
the federal court would have
from
its
exercising
pendent
jurisdiction over the
refrained
claims,
then the
suit in the state
subsequent
would not be
barred
In
judicata.3
doing,
so
we
jurisdiction
Pendent
relates to issues of which the
*3
federal
court would not
jurisdiction
have
if raised
independently of a federal claim. "Pendent
jurisdiction,
the sense of judicial power, exists whenever
there is a
claim
under
'arising
Constitution,
[the]
the
of
Laws
the
States,
United
made,
Treaties
or
made,
which shall be
under their Authority..U.
Const.,
Ill, 2,§
S.
Art.
and the
relationship
between that claim and the state claim
permits the conclusion that
the entire action before the
court comprises but one constitutional
'case.’ The federal
claim must have substance
sufficient
to confer subject
matter
jurisdiction
on the court. Levering & Garrigues
Morrin,
Co. v.
conclude most have been left for likely and would predominate” to the federal been resolution had state Gibbs, 383 U. of America v. S. United Mine Workers court. Therefore, important now these state courts, not our res apply before the state we will issues are litigation. judicata statute to bar emphasize that che rule announced here applies We is, pendent jurisdiction, to federal where the only jurisdiction court would not independently because a acquires jurisdiction only the state but question Also, the court is involved. must question purposes judicata that the of the res underlying convinced by advanced rather than defeated not applying rule are a attempts enjoin public body the rule. Here the suit under alleged from a statute to be unconstitutional acting The governs under the State Constitution. statute matter importance. The not been great public issue had decided judicata applied the res bar is by the courts. again defendant will be sued on the same issue likely similarly another In that person plaintiff. situated must suffer the event both courts and defendant here, same as procedural hearings requirements until delay, again ripe well as the attendant the issue is A for decision. decision now further preclude an public early interest will be served litigation. Judicial decision. defendant will be harmed. result. economy will
Because the granted summary judgment trial court in favor of the Atlanta and the state on the res City of decide due ground, process did not the state Therefore, eminent domain on the issues merits. in case No. .32525 is reversed and the case proceedings. remanded to trial court for further 2. The trial the River court erred Act holding *4 (1933)], 586, 77 LE we assume that SC applicable not have been of res doctrine Mine subsequent state suit.” United Workers of any in 724. in Gibbs, supra, p. (Emphasis America origi- nal.) an to exercise attempt by zoning
constituted the state powers delegated by Georgia Constitution to the local Const., XI, IV, governing authorities. 1976 Art. Sec. Par. (Code (15)). Ann.§ II The it validly state contends Const., enacted the River Act under its police power. 1976 2-1403). (Code Ill, VIII, Ill § Art. Sec. Par. Ann.
The zoning power granted county to and municipal Constitution, in governments is defined the Georgia supra, power as "the to within their provide respective jurisdictions for zoning districting political or of such subdivisions for various uses and other or different uses districts; prohibited such zones regulate or to the use for which said zones and districts may apart; set and to regulate plans development improvements and Anderson, real estate therein.” See American Law of 1.13; § Zoning, AmJur2d and Zoning Planning, The same paragraph of the Constitution also provides: "Except provided as otherwise in this as to and Paragraph planning zoning, contained nothing within operate shall Paragraph prohibit General Assembly from enacting general laws relative to the above matters or subject prohibit the General Assembly by general law from or regulating, restricting limiting powers,...” the exercise of the above Some "(6) powers included Storm water sewage (7) disposal systems. Development, collection and storage, purification treatment and distribution of water.” precluded acting The state is thus not from these areas law. by general purposes of the River Act are set out Section "(a) Ga. L. 128 at p. pp. 130-131. General
Assembly supplies finds that of clean adequate drinking great metropolitan water constitute the life-blood of the are, therefore, of this areas State essential State; health, progress welfare economic streams development adjacent major certain metropolitan requires special regulation provide areas protection adequate jrablic supplies; water siltation and urban such supplies; runoff threaten water plain development unnecessarily exposes that flood life and property by flooding increasing to loss while flood *5 [sic]; development that over-intensive area for other
risks and frequency increases streams major to adjacent in inter- public it is flooding; such severity of of possible loss damage future flood avoid to est protect and pollution erosion control life, to metropolitan in certain streams major of quality water areas.
"(b) a flexible provide of this Act is to purpose in subdivisions whereby political method practical police power utilize the of metropolitan may certain areas in with a consistently the State accordance of public supplies water comprehensive plan protect prevent and to such and of the area political subdivisions erosion, siltation and damage, floods and flood to control streams adjacent major intensity development provide and to for purposes, such areas for such in such for stream corridors comprehensive planning areas.” the River Act does not constitute
We conclude in the Georgia the definition set out zoning within above, but instead falls within Constitution and quoted act, the local along the reserved of the state to with powers authorities, system, to the water regard with governing Therefore, the River Act. purpose in the as is set out and the ruling trial court erred otherwise case No. 32526 is reversed. concur, except reversed. All the Justices
Judgments Hall, J., who dissents Division from Argued July Decided —Rehearing
October denied 9, 1977.
November Rolleston, Jr., Bolton, Moretón Arthur K. Attorney General, Patricia T. Barmeyer, Assistant Attorney General, appellant. Mathews, Witt,
Ferrin Ralph Y. H. Carole Mary Bolton, General, Cooney, Attorney Arthur K. Patricia T. General, Barmeyer, Attorney appellees. Assistant Smith, Jr., Bassett, Furman William R. M. Harvey amicus curiae. Koenig, dissenting.
Hall, Justice,
I
from
1 on the
application
dissent
Division
(and
principles
judicata.
impliedly
has
appellant’s
her state
correctly)
rejected
argument
and federal theories of relief constitute different causes of
action.
Mrs.
is
the same
Pope
seeking
relitigate
Since
cause
she
"A
of action
is barred
Code Ann.
110-501:
judgment of a court of
shall be
competent
jurisdiction
privies
conclusive between the same
and their
parties
issue,
to all
matters
or which under the rules of law
put
*6
put in
might have been
issue
the cause wherein the
rendered,
judgment was
until
such
shall be
reversed
1
or set aside.”
can
opinion
Division
court’s
only be understood as an
to this
unprecedented
exception
general
preclusion.1
claim
rule of
case law.
contrary
existing
is also
This decision
Dasher,
v.
669
236 Ga.
e.g., Chilivis
(1861).
(1976);
Our cases
Searcy,
binding decisis, effect stare a decision a federal by while 1The possibility plaintiff pendent that a will lose her failing claims present them to federal court has been noted Res Degnan, commentators. Federalized Judicata, (1976); 85 Yale L. J. Annot., ALR3d Note, Problems Parallel State Remedies, Federal Harv. L. Rev. 523-524 2 The court’s rule will give only collateral estoppel effect to federal court when judgments the test of Division 1 is met. Res claim preclusion § under Code Ann. also, is broader. See Restatement, Judgments, entitled only would be same issue
court on the only parties binds which judicata, effect of binding I rule in Division But do not believe the privies.3 and their I believe effect, and moreover desired 1 will have the the new rule against if the policies pre- it did even dominate.
The rule in Division if applies only there has been a prior federal suit in plaintiff which the present failed to ground for relief under state law. What says rule is in such a case the state court inquire as to whether the federal court would have abstained had the issue been If presented. the state court concludes that the federal court abstained, would have we will treat the case if the court had in fact abstained. What does this accomplish?
Under general res judicata principles the plaintiff must present all If grounds for relief or lose them. he does not present decision; them there is no plaintiff is simply barred from bringing a second suit. he does present them, the federal court will abstain on issues which are suitable abstention, the very same issues with which Division is concerned. Once the federal court abstains, plaintiff may litigate these issues in state court, for they are issues which put could *7 issue in previous the case. Code Ann. 110-501. In other if words, plaintiffs we force present to all of their cases to courts, (so the federal we can accomplish the same result far as the policy of state court encouraging decisions on concerned) state law is as the rule in Division without the sacrificing policies behind law. existing practical One effect of this new rule is to save those cases, such as Mrs. Pope’s, where the plaintiff has simply neglected to all present grounds for relief to the federal forum.4 Insofar as the rule plaintiffs relieves from the mistakes of lawyers their it is directly contrary persuasive be merely decision would federal cases. other authority law and state federal five Pope presented Mrs. City of Pope court. See the federal relief to 1976). (N.D. There is no Ga. Atlanta, FSupp. Pope Mrs. principle. the choice behind policy any other than relief of deserving more is no plaintiff. course,
Of the further goes rule and encourages plaintiffs to of withhold some their relief from grounds for the federal court. We should not this. the encourage claim is we have no decision court federal on whether should refrain from hearing the issue. The of question whether the federal court should abstain is a procedure of federal court question a discretionary decision This judge. one of which should be left for is the federal courts issue are the experts on federal decide, proce- to, dure.
The result of Division is to our state require courts to answer a hypothetical question of federal if procedure: plaintiff had presented his entire case court, court, would that in the of exercise its sound discretion, refused decide the issues now presented? question This is not easy one, an at least one state court has refused to Martin v. consider it. (Tex. 1970). Co., Phillips Petroleum 455 SW2d Moreover, the issue is entirely foreign to the areas competence of judges. state court Thus has majority a created difficult collateral which requires issue our courts to rules become familiar with and apply fed- eral court procedure as a preliminary step deciding a whether to hear case. This adds the burden on our courts. preclusion supported by
Claim is not only policy of reducing unnecessary litigation. primary policy behind the principle is to promote justice by avoiding expense, uncertainty unnecessary delay caused by repeated defendants lawsuits the same cause Repeated unjustly action. suits harass can used defendants, deny justice Yet may altogether. court approves procedure by which a plaintiff can bring *8 indication of a choice save to the state constitutional issues for state court. Rather it these appears that issues were not even thought of until lost in she federal court. court, failing start federal choosing to suits
two Even issues to forum. law state important present relitigation, refuse to allow will our courts in cases where the difficult question litigate be able to will plaintiffs This have abstained. court the federal of whether procedural com- appeals.The additional provoke will for harassing tool case will created this plexity burden on our unnecessary defendants, totally as a as well courts. a federal who choose plaintiffs should require
We
to that court.
for relief
all their
present
forum to
arguably appropriate
are
which
present
issues are
question
can decide
abstention,
federal court
issue
dispose
This
abstain.5
it should
whether
con-
Difficult
our courts.
burdening
without
courts.
to state
still be referred
stitutional
claims will
disagreeing with Division
another reason for
There is
a matter of
a federal
is
The
and effect of
scope
full faith and
give
are
required
State courts
federal law.
courts,
requires
and this
federal
judgments
credit
least
the same
at
judgments
federal
give
we
of our own
give judgments
effect as we would
preclusive
165, 167,
Gottlieb, 305 U. S.
1738;
Stoll v.
USC
courts.
(1882);
Palmer,
Degnan,
187 (5th 1971). 1286, 1311-1316 Cir. United Mine Work Gibbs, America v. 383 U. S. 725, n. 12 ers (1966). The federal courts have been quite insistent on the issue of claim preclusion by adjudication former in federal See, court. e.g., Southwest v. Airlines Co. Texas Interna Airlines, tional supra; International Assn. of Machinists (5th v. Nix, 1975); &c. 512 F2d 125 Cir. Woods Explora tion and Production Co. v. America, Aluminium Co. of in supra. rule federal court is that a judgment for the particular defendant on a cause of action establishes his to do right what done. Applied case, was the rule means that the of Atlanta the City right has to restrain Pope. Mrs.
A
in Mrs.
the
Pope’s
decision
favor
trial court on
by
remand would
federal
effectively nullify the
judgment,
and thus
it full faith and credit. The rule
deny
announced
in Division 1 is
contrary
statutory requirement
that
give
we
federal
the same effect as state
judgments
and amounts to a denial
full faith and credit
judgments,
both suits.
party prevails
even where the same
by
it is
that
few cases
state
Finally,
noting
worth
the
closely
courts which are
to this
point
contrary
are
(Utah 1974),
Texas,
In
v.
This review the certiorari decision of Ga., in Clark v. State Ga. Appeals App. Court of Appeals The Court of affirmed the Georgia, of a tort suit the State of against dismissal *10 Resources, its director and board of Natural Department of state sovereign immunity. on the In 1974 amendment was ratified a constitutional Claims. the establishment of a State Court of authorizing held that virtue of Ann. 2-3401. This court has Code this amendment the doctrine of state adoption status and immunity now has constitutional sovereign Azizi v. Bd. or modified this court. abrogated cannot be 627) (212 487, 488 SE2d U. of Ga.,233 Ga. Regents of (1975). contends that the amendment was petitioner with more than one ratified because dealt illegally of Ga., v. State matter. We See Sears subject disagree. 93) (208 (5) Clark, 136 SE2d Hammond v. Ga. (71 313, Ga. SE also contends the amendment petitioner did not language ratified because the ballot illegally
was the doctrine adopting inform the electorate that were Sears, immunity. disagree. of state We sovereign 554-556; Aldredge, McLennon v. 223 Ga. supra, 682) (1968). concur, except All the Justices Judgment affirmed. Jordan, J., only who concurs in the Nichols, J., Hill, J., C. who dissent.
Argued September Decided October
Rehearing denied November