City of Atlanta v. McKinney

454 S.E.2d 517, 265 Ga. 161, 1995 WL 116312

• Court: Supreme Court of Georgia
• Decided: March 14, 1995
• Docket: S94A1610, S94X1612
• Status: Published

Opinions

Fletcher, Justice.

These appeals involve a challenge to City of Atlanta ordinances that prohibit discrimination on the basis of sexual orientation, establish a domestic partnership registry for jail visitation, and extend insurance and other employee benefits to domestic partners of city employees. The trial court ruled that the city exceeded its powers in enacting the domestic partnership ordinances, but dismissed the claims challenging the anti-discrimination laws. We hold that the city has the power to enact the anti-discrimination and registry ordinances, but exceeded its authority in extending employee benefits to persons who are not dependents under state law. We affirm in part and reverse in part the trial court’s grant of judgment on the pleadings to the plaintiffs in Case No. S94A1610 and affirm the grant of the city’s motion to dismiss in Case No. S94X1612.

The Atlanta City Council in 1986 amended its charter’s bill of rights and its code of ordinances to prohibit discrimination on the basis of sexual orientation. See Ordinances 86-0-0190 & 86-0-0308. The ordinances prohibit sexual orientation discrimination in city employment, artist selection, festival admission, Atlanta Civic Center exhibitors, licensed alcohol beverage establishments, and vehicles for hire. “Sexual orientation” is defined as “the state of being heterosexual, homosexual, or bisexual.”

In June 1993, the city council passed an ordinance providing for the establishment of a domestic partnership registry in the city’s business license office. Ordinance 93-0-0776 defines “domestic partners” as “two people of the opposite or same gender who live together in the mutual interdependence of a single home and have signed a Declaration of Domestic Partnership.” The declaration is a city form in which the partners “agree to be jointly responsible and obligated for the necessities of life for each other.” The ordinance extends visitation rights to city jails to domestic partners and their family. In August 1993, the city council adopted an ordinance that extended employee benefits to domestic partners.

The City of Atlanta recognizes domestic partners as a family relationship and not a marital relationship and shall provide sick leave, funeral leave, parental leave, health and dental benefits, and any other employee benefit available to a City employee in a comparable manner for a domestic partner, as defined herein, as for a spouse to the extent that the extension of such benefits does not conflict with existing laws of the State of Georgia.

Ordinance 93-0-1057, § 3.

State representative Billy McKinney, two city council members, a city taxpayer, a city employee, and a retired city employee filed a declaratory judgment action seeking to have the four ordinances declared invalid and unconstitutional and seeking damages. The city moved to dismiss the complaint for failure to state a claim. After a hearing, the trial court granted the plaintiffs a partial judgment on the pleadings under OCGA § 9-11-12 (c), declaring the domestic partnership ordinances ultra vires, void, and unconstitutional under the Georgia Municipal Home Rule Act and the Georgia Constitution, but dismissed the plaintiffs’ claims related to the anti-discrimination ordinances and damages. The city appeals the judgment invalidating the domestic partnership ordinances in Case No. S94A1610. McKinney appeals the dismissal of the claims challenging the anti-discrimination ordinances and seeking damages in Case No. S94X1612.

Case No. S94A1610. DOMESTIC PARTNERSHIP ORDINANCES 1

1. “Municipal corporations are creations of the state and possess only those powers that have been expressly or impliedly granted to them.” Porter v. City of Atlanta, 259 Ga. 526 (384 SE2d 631) (1989). The Municipal Home Rule Act of 1965 grants a city the legislative power to adopt ordinances “relating to its property, affairs, and local government for which no provision has been made by general law and which are not inconsistent with the Constitution.” OCGA § 36-35-3 (a) (1993). In determining the validity of an ordinance, this court must decide whether the city had the power to enact the ordinances and whether the exercise of its power is clearly reasonable. Porter, 259 Ga. at 526.

The city argues that the registry ordinance merely provides for an internal list of city residents and employees who have entered into written agreements similar to the one that this court upheld in Crooke v. Gilden, 262 Ga. 122 (414 SE2d 645) (1992), and grants domestic partners visitation rights to city jails. The ordinance states that it does not attempt to alter state laws regulating private or civil relationships.

Rights and Duties Created. Neither this ordinance nor the filing of a Declaration of Domestic Partnership shall create any legal rights or duties from one of the parties to the other, except those which specifically refer to Domestic Partnership. Nothing herein shall be construed to explicitly or implicitly create a marital relationship. This ordinance does not attempt to alter or affect the laws in the State of Georgia that regulate any private or civil relationships.

Ordinance 93-0-0776, § 2 (A).

Courts have a duty to construe a statute to sustain it if its language is susceptible to more than one construction. Mayor &c. of Hapeville v. Anderson, 246 Ga. 786 (272 SE2d 713) (1980). Following this rule, we construe the registry ordinance as creating only a registration system and not any legal rights. Under this construction, the ordinance is valid. First, the city possesses the power to grant visitation rights to the city jail to registered persons. The Atlanta City Charter gives the city the power to “operate, maintain, regulate, [and] control . . . corrective, detentional, penal and medical institutions, agencies and facilities.” Ga. L. 1973, pp. 2188, 2256. Second, the registry ordinance is a reasonable exercise of the city’s power. The registry is merely the mechanism by which the city can identify the residents and employees who may exercise their jail visitation rights because of their declaration as domestic partners. Because the registry and jail visitation law as construed is a reasonable ordinance related to the city’s affairs, we reverse the trial court’s grant of judgment on the pleadings concerning this ordinance.

2. The Georgia Constitution prohibits cities from enacting special laws relating to the rights or status of private persons. Ga. Const., Art. Ill, Sec. VI, Par. IV (c); see also id. (a) (prohibiting a city from enacting a local or special law for which provision has been made by general law). The home rule act also precludes cities from taking “any action affecting the private or civil law governing private or civil relationships, except as is incident to the exercise of an independent governmental power.” OCGA § 36-35-6 (b). Although the meaning of this provision is ambiguous, it indicates that the state does “ ‘not wish to give our cities the power to enact a distinctive law of contract.’ ” See Marshal House, Inc. v. Rent Review &c. Bd., 260 NE2d 200, 204 (Mass. 1970) (quoting Fordham, “Home Rule-AMA Model,” 44 Nat. Municipal Review, 137, 142). At a minimum, it means that cities in this state may not enact ordinances defining family relationships. The Georgia General Assembly has provided for the establishment of family relationships by general law. See, e.g., OCGA §§ 19-3-1 to 19-5-17 (1991); see also City of Bloomington v. Chuckney, 331 NE2d 780, 783 (Ind. App. 1975) (“a city should not be able to enact its own separate law of contracts or domestic relations since these areas are unsuited to less than statewide legislation”).

The Municipal Home Rule Act specifically grants cities the authority to provide insurance benefits for a city’s “employees, their dependents, and their survivors.” OCGA § 36-35-4 (a). The issue here is whether the city impermissibly expanded the definition of dependent to include domestic partners. Although the home rule act does not define the term “dependent,” other state statutes define a dependent either as a spouse, child, or one who relies on another for financial support. Compare OCGA § 20-2-886 (granting right to health insurance coverage to the spouse and dependent children of public school employees); OCGA § 45-18-8 (1990) (“spouse and dependent children” may be included in the health care coverage of state and other public employees), and OCGA § 34-9-13 (a) & (b) (1993) (under workers’ compensation statute a wife, husband, or child is “presumed to be the next of kin wholly dependent for support upon the deceased employee”) with OCGA § 48-7-26 (Supp. 1994) (adopting the Internal Revenue Code’s definition of dependent as an individual who receives half of his or her support from the taxpayer and is a member of the taxpayer’s household). Domestic partners do not meet any of these statutory definitions of dependent.

The powers of cities must be strictly construed, and any doubt concerning the existence of a particular power must be resolved against the municipality. City of Macon v. Walker, 204 Ga. 810, 812 (51 SE2d 633) (1949); City of Doraville v. Southern R. Co., 227 Ga. 504, 510 (181 SE2d 346) (1971). We conclude that the city exceeded its power to provide benefits to employees and their dependents by recognizing domestic partners as “a family relationship” and providing employee benefits to them “in a comparable manner . . . as for a spouse.” Accord Lilly v. City of Minneapolis, 527 NW2d 107 (Minn. Ct. App. 1995). Since it is beyond the city’s authority to define dependents inconsistent with state law, we affirm the trial court’s ruling invalidating the benefits ordinance as ultra vires under the home rule act and the Georgia Constitution.²

Case No. S94X1612. ANTI-DISCRIMINATION LAWS

3. Under its police power, a city may enact ordinances to protect the health, safety and general welfare of the public. H & H Operations v. City of Peachtree City, 248 Ga. 500, 501 (283 SE2d 867) (1981). Numerous states have upheld municipal ordinances that prohibit discrimination as a proper exercise of a municipality’s police power. See, e.g., Hutchinson Human Relations Comm. v. Midland Credit Mgmt., 517 P2d 158, 162 (Kan. 1973). Similarly, the City of Atlanta has the authority to enact anti-discrimination laws under its general police power. This power enables the city to prohibit discrimination on the basis of race, color, national origin, religion, sex, and sexual orientation as part of its regulation of city employment, events, and vendors.

Besides a municipality’s general police powers, state law grants cities power related to the administration of municipal government. See OCGA § 36-34-2. This grant of authority does “not define the means by which the cities would and could manage their affairs” or “prohibit municipal governing authorities from choosing how such powers shall be exercised.” Sadler v. Nijem, 251 Ga. 375, 378 (306 SE2d 257) (1983). Included among those powers is authority for cities “to define, regulate, and alter the powers, duties, qualifications, compensation, and tenure of all municipal . . . employees.” OCGA § 36-34-2 (2). This provision provides additional authority for a city to enact equal employment opportunity laws prohibiting discrimination in city government. The challenged ordinances do not purport to regulate private employers or public employers other than the City of Atlanta.

In his dissent Justice Carley argues that state law preempts the city’s attempt to prohibit discrimination on the basis of sexual orientation. He cites no state law that reserves to the state the right to determine which classifications of people are protected from discrimination or prevents municipalities from enacting laws against discrimination. To the contrary, the equal protection clause to the Georgia Constitution states that “[n]o person shall be denied the equal protection of the laws.” See Ga. Const., Art. I, Sec. I, Par. I. The legislative history of that provision shows that committees drafting the Constitution chose not to specify classes of persons entitled to equal protection in favor of a more general prohibition against discrimination. See Grissom v. Gleason, 262 Ga. 374, 377, n. 3 (418 SE2d 27) (1992); id. at 382-383 & n. 6 (Sears, J., concurring specially). Moreover, the Georgia Fair Employment Practices Act of 1978 expressly permits local governments to pass laws prohibiting discrimination in public employment. See OCGA § 45-19-21 (act shall not be construed to exclude local or federal laws on the same subject matter).

The dissent’s argument that anti-discrimination law is “diluted by expansion of the number of protected classes” is similarly without a basis in law or fact. Individuals can be subjected to more than one type of irrational discrimination which the government is at liberty to prohibit. The ordinances do not require any special treatment of the specified classes; they just forbid differential treatment.

Because the anti-discrimination ordinances extend only to the city’s policies governing its employees and property and to those businesses that state law leaves to the city to regulate, we conclude that they are reasonable laws related to the city’s affairs and local government. Therefore, we affirm the trial court’s granting of the motion to dismiss the claims.

4. There is no merit to McKinney’s claims for money damages against the city, mayor, or city council members for passing and approving the challenged legislation. See OCGA § 36-33-1 (b); see also Gilbert v. Richardson, 264 Ga. 744 (452 SE2d 476) (1994) (state officers and employees shall not be subject to suit or liability for performing official functions, unless they perform ministerial acts negligently or perform ministerial or discretionary acts with malice or an intent to injure). Accordingly, we also affirm the trial court’s dismissal of all damages claims.

Judgment affirmed in part and reversed in part in Case No. S94A1610.

All the Justices concur, except Carley and Thompson, JJ., who dissent as to Division 1, and Hunt, C. J., Sears and Hun-stein, JJ., who dissent as to Division 2. Judgment affirmed in Case No. S94X1612. All the Justices concur, except Carley, J., who dis- seats as to Division 3.

1 Since the trial court based its orders on the pleadings alone and there are no disputed issues of fact in these appeals, the validity of the challenged ordinances is a question of law that this court reviews de novo.

2 We do not address whether a municipal corporation could enter into a contract with an insurance company providing for group accident and health coverage for domestic partners. See 1994 Op. Atty. Gen. 94-14.