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Two facts became crystal clear this week during oral arguments before the full 11th U.S. Circuit Court of Appeals: Judge Frank M. Hull believes Georgia county sheriffs are agents of the state. Judge Rosemary Barkett does not. She thinks sheriffs are agents of their respective counties. It’s a critical distinction, because state agents-and not those from a county-are entitled to 11th Amendment immunity from civil rights suits. Hull and Barkett staked out their positions early and often as the 11-member court reviewed two cases in which plaintiffs blamed sheriffs for being beaten by a deputy and being falsely arrested. Facing each other from opposite sides of the upside-down “V” where the judges sit, Hull and Barkett turned the argument into a verbal tennis match, exchanging facts and points of law through the unfortunate lawyers standing at the podium. Several times the judges interrupted each other. LAWYER WAITS FOR VOLLEY Stepping up to the podium after watching the judges clash in the first sheriff case, lawyer Bruce R. Millar told the court he probably wouldn’t need his carefully prepared notes and waited for the next volley-which came from Hull. While Hull and Barkett dominated the discussion, the other 11th Circuit judges weighed in with their ideas. But there were stretches when they just watched and listened to Hull and Barkett, along with the nearly full courtroom that had gathered for one of the court’s rare en banc sessions. Full court arguments are held when the judges reconsider rulings made by three-judge panels; sometimes they result in a new court precedent. That’s what Hull urged in two panel opinions from the sheriff cases, so it wasn’t surprising that she was so passionate about them. In March, she wrote the panel opinion in the case about Willie Santonio Manders, who sued Sheriff Winston Peterson of Clinch County. Manders claimed one of Peterson’s deputies repeatedly struck him across the head, neck and face while in the county jail. Hull wrote that a district judge correctly followed 11th Circuit precedent in finding the sheriff was an agent of the county. But she added that the court needed to re-examine its precedent because, among other things, the Georgia Constitution and code give counties no control over sheriff’s qualifications, minimum salary or law enforcement powers or training. Judge Susan H. Black and Senior District Judge Kenneth L. Ryskamp joined Hull’s decision. Manders v. Lee, No. 01-13606 (11th Cir. March 14, 2002). A month later, Hull, Barkett and 11th Circuit Senior Judge Phyllis A. Kravitch decided that Clayton County was not entitled to 11th Amendment immunity in a suit by Brian L. Grech. He claimed that the Clayton sheriff allowed expired criminal warrants to remain on a computer database, a mistake that led to Grech’s 1998 arrest on an expired 1985 warrant for missing a DUI court date. While she joined the per curiam opinion, Hull repeated her doubts about the precedent. Grech v. Clayton County, No. 01-13151 (11th Cir. April 19, 2002). Hull presumably asked the full 11th Circuit to rehear the cases en banc, and the court in August reported that the majority of the judges had agreed to hear the cases again, leading to Wednesday’s arguments. WHO CONTROLS THE SHERIFFS? Representing the Clinch County sheriff, Richard K. Strickland, of Brunswick’s Whelchel, Brown, Readdick & Bumgartner, went first. He soon was interrupted by Hull, who was sitting to his right. To decide who are state policymakers and who are county policymakers, she said, “We have to look at who has control over the sheriffs.” A few moments later, Hull answered her own question: “In fact, the county has no control whatsoever.” From Strickland’s left came Barkett, interrupting Hull only to say, “Maybe I should wait until Judge Hull finishes.” But Hull deferred, releasing Barkett to interrogate Strickland. Barkett told Strickland that in order to answer the state-county question, one has to look at state law, the state constitution and the makeup of political subdivisions. Gesticulating to make her points, Barkett knocked her microphone off its stand and eventually had to borrow Black’s. Hull tried to head off Barkett’s argument, saying that counties had no law enforcement power, but Barkett pressed on. Where in the Georgia Constitution does one find sheriffs, Barkett asked Strickland. They’re county officers, he said, but case law reveals that to be “just a geographic designation,” Strickland said. But the county has the authority to raise the sheriff’s salary, Barkett added. That’s true, Strickland said, but the state government dictates the minimum salary for the sheriff. Can the governor remove a sheriff? Barkett asked. Not by himself, Strickland said, but a committee made up of two sheriffs and the state attorney general could remove a sheriff. “This control issue is confusing to me,” Barkett said, “Isn’t the question who do [the sheriffs] set policy for?” Strickland said if the county has no control over sheriffs, it has no say in what policy the sheriffs should enforce. Chief Judge J.L. Edmondson then broke in to remind Strickland that he already was two minutes over his allotted 15 minutes and that he would get an additional few minutes on rebuttal. Representing Manders, Theodore H. Lackland of Atlanta’s Lackland & Associates, stood and soon had to face Hull. Isn’t it true, she asked, that the state Department of Human Resources inspects the jail and that state law controls how sheriffs are to be removed? Barkett tried to interrupt, but Hull refused: “This time, I’ll get one more question in.” She pointed to McMillian v. Monroe County, 520 U.S. 781, a 1997 U.S. Supreme Court decision holding 5-4 that Alabama sheriffs represent the state when exercising law enforcement authority. “How do I get around Supreme Court precedent?” Hull asked. Later she told Lackland, “Law enforcement powers are state laws,” not county laws. Judge Charles R. Wilson, sitting next to Hull, suggested the 11th Circuit certify a question to the Georgia Supreme Court and ask it to answer the question. Barkett sounded as if she already knew how the state high court would rule. “Has the Georgia Supreme Court ever called the sheriff a state officer?” she asked. Lackland said he was not aware of such a case. “But it has called him a county officer,” Barkett added. Hull, who, as a Fulton Superior Court judge must have grown very familiar with the Georgia high court rulings, responded with a confident smile. “The Georgia Supreme Court has been very liberal with regard to sovereign immunity,” she said, seeming to mean the court has granted the state a lot of immunity. At the end of the argument, Edmondson thanked the lawyers and said, “I expect to hear a lot more from Judges Hull and Black.” THREE OTHER CASES Rounding out the four-hour session were three other cases: A dispute between Internet service providers and telephone carriers over millions of dollars in interconnection fees; a debate over civil rights plaintiffs’ ability to amend their original complaints; and a First Amendment challenge over how much the Atlanta airport may charge newspaper companies to place newsracks in the terminals. BellSouth Telecommunications v. MCImetro Access Transmission Services, No. 00-12809 (11th Cir. arg’d Oct. 15, 2002); Wagner v. Daewoo Heavy Industries America, No. 01-11998 (11th Cir. arg’d Oct. 15, 2002); Atlanta Journal and Constitution v. City of Atlanta Department of Aviation, No. 00-14413 (11th Cir. arg’d Oct. 15, 2002). The newspaper case started as a dispute between airport officials and publishers before the 1996 Olympics, when the city intended to rent to media outlets newsracks purchased by the Coca-Cola Co. which would feature Coke ads prominently on every coin-operated box. A federal judge struck down the requirement as a violation of the First Amendment’s press freedoms. At issue on Wednesday was whether the airport now could charge publishers more than what it costs to maintain the newsracks in the terminals. In particular, the court considered whether one of its 1991 decisions, Sentinel Communications v. Watts, 936 F.2d 1189, precluded a city from charging a revenue-generating fee for the sale of newspapers from newsracks. Representing the city, William H. Boice of Kilpatrick Stockton said the fees needed only to be “reasonable” and not discriminate against publications on the basis of viewpoint. Representing the Journal-Constitution and The New York Times, Peter C. Canfield of Dow, Lohnes & Albertson said the airport’s fees were not reasonable and said U.S. Supreme Court cases warned against such fees as leading to government censorship of the press. When Black suggested setting aside the Sentinel precedent, USA Today‘s lawyer, James C. Rawls of Powell, Goldstein, Frazer & Murphy, said that was his “nightmare.”

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