Law Commons^™

Cooperative Federalism And Healthcare Reform: The Medicare Part D 'Clawback' Example, Elizabeth Weeks Leonard

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This symposium article recounts recent litigation by several states over a provision of the Medicare Modernization Act Part D prescription drug benefit: The clawback, which requires states to pay the a potentially substantial portion of new federal program. I then examine the unique federalism implications of the clawback for ongoing state and federal health reform initiatives.

In spring 2006, several states petitioned the United States Supreme Court for original jurisdiction to hear a challenge to one provision of the new Medicare Part D prescription drug law. The federal government, while taking over prescription drug coverage for dually eligible beneficiaries, required …

The Status Of Administrative Agencies Under The Georgia Constitution, David E. Shipley

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This Article discusses the place of administrative agencies under the Georgia Constitution. The rules of the Georgia Supreme Court on these issues, like the comparable rulings from the U.S. Supreme Court, make excellent reading for anyone interested in Georgia law, government, politics, and history. Most of the decisions surveyed in this Article are correct, but not necessarily for the reasons given by the Georgia Supreme Court. Some of the opinions offer comprehensive treatises on sections of the Georgia Constitution and aspects of administrative law, while others reach conclusions without much explanation. Some results are at odds with prior decisions that …

Local Government Liability Litigation: Numerical Nuances, R. Perry Sentell Jr.

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Georgia local government law not only encompasses a forbidding substantive expanse; it occupies a dominating presence before the Georgia appellate courts. Those courts are called to resolve all manner of litigation erupting from citizen exposure to government at its first level. The controversies feature issues both recurring and unique; they represent nothing less than the essence of law in daily life. An annual effort to chronicle those controversies over a good number of years reveals two (among many) distinct facets. First, local government liability has consistently dwarfed all other litigated issues; and second, this pervading characteristic emits no signs of …

The County Spending Power: An Abbreviated Audit Of The Account, R. Perry Sentell Jr.

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In Georgia the spending power of the county enjoys a distinctive history. The subject can by no means be relegated to history alone, however, for it currently stands as one of the most perplexing issues in local government law. That further developments in dealing with the issue may occur, indeed unquestionably will occur, does not detract from the account itself.

Defamation In Georgia Local Government Law: A Brief History, R. Perry Sentell Jr.

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Whether it be contact between local government officers themselves, or between officer and citizen, or between officer and news media, or between media and government itself, the potential for defamatory publications is awesome. Historically, therefore, in the defamation law of any state, a considerable number of the cases typically arise out of the local government process. Indeed, no less a case than New York Times v. Sullivan itself is but modern confirmation of a traditional setting for defamation controversy. Georgia local government law likewise contains its share of defamation disagreements. At an early date, many of the state's common law …

Local Government Law And Liquor Licensing: A Sobering Vignette, R. Perry Sentell Jr.

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An earlier effort in this Review [8 Ga. L. Rev. 614 (1974)] sought to probe the general topic of local government power and its exercise in Georgia. Although perhaps not the most exciting of subjects, the exercise of power assumes pivotal practical prominence for both the local government and the citizen. It was somewhat surprising, therefore, to find few settled legal guidelines for approaching the issue and to discover that power problems frequently must be litigated in a jusicial vacuum. Although a great deal of the earlier effort remains fairly accurate, subsequent developments quickly dated the treatment of local government …

Workers' Compensation In Georgia Municipal Law, R. Perry Sentell Jr.

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For the last sixty years, workers' compensation has constituted a distinct subject of administration in Georgia municipal government and, consequently, a distinct subject of controversy in Georgia municipal law. Of course, many of the problems, issues, and solutions ar ethe same, whether the covered employment be municipal or private in nature. Still, municipal law possesses its own quagmires, quandaries, and conundrums; some of those peculiarities can yield unique questions regarding workers' compensation. Whether general or unique, the appellate courts have rendered a number of decisions on the subject, and those decisions make for yet another compact chapter in Georgia municipal …

Georgia Local Government Officers: Rights For Their Wrongs, R. Perry Sentell Jr.

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Responsibility for damage caused by the misconduct of local government officers and employees has long been a concern of the law and of legal observers. According to most accounts, Anglo-American law historically has responded with two diverse rules: immunity for the governments, and liability for the official; both, however, are only points of departure. Although both rules are well established, each carries its own qualifications and the precise relationship between the two is a matter of some controversy.

A Note On The Georgia Contracts Code, Julian B. Mcdonnell

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Among all of these codes, the present Code of Georgia enjoys a distinguished pedigree. It traces its origins and many of its provisions to the original Georgia Code of 1860. The story of that original Georgia Code has been largely lost to history, undoubtedly because it arrived simultaneously with the Civil War. For its time, the Georgia Code of 1860 was a remarkable legal document. Previous codifications in Anglo-American jurisdictions had been limited to reducing statutory materials to systematic written form or establishing new procedural systems. The Georgia Code of 1860 was the first codification of the substantive areas of …

The Omen Of "Openness" In Local Government Law, R. Perry Sentell Jr.

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In the realm of government, the goal of publicity translates into "openness," and its proponents have long cited James Madison: "A popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy, or perhaps both." In recent times, openness in government--and the quest for it--have experienced a resounding revival of interest. The result is yet another of those intriguing domains where basic traditional sentiments merge with intense modern reforms. Governments at all levels have felt the impact of that revival, an impact produced by diverse developments in various contexts. Three …

Local Government "Home Rule": A Place To Stop?, R. Perry Sentell Jr.

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In November 1977, the Supreme Court of Georgia rendered a decision in City of Atlanta v. Myers which invalidated a municipal ordinance requiring that police officers and firefighters be residents of the municipality. The public media, in its discussion of the decision, primariily pointed out the residency requirement, the policy behind it, and its advantages and disadvantages to the cause of good government--all important matters. As frequently happens, however, even more crucial considerations in the case may have gone unheralded. From the legal perspective, that is, the importance of the decision and its implications may considerably transcend the factual context …

Extraterritorial Power In Georgia Municipal Law, R. Perry Sentell Jr.

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The image of municipal power carries with it the accompanying concept of limitations on that power. One of the seemingly most natural of such limitations is that pertaining to territory. If a municipality is an incorporated entity, composed of precisely described physical boundaries, then its operational existence would normally be presumed to take place within those boundaries. The municipality's power to function outside its limits would thus appear not only unnecessary but foreign to the corporate conception. The problem with such neatness, of course, is its unworldliness. The truism is that neither man nor municipality is an island and that …

Remembering Recall In Local Government Law, R. Perry Sentell Jr.

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Inherent in a system of representative government is the thesis that if those who "represent" do not fulfill the promise or expectation, those who are "represented" must possess the leverage of a remedy. The most obvious of such remedies, of course, is resort to the ballot box at the conclusion of the representative's term of office. The extent to which more drastic remedies are desirable is a provokinig point of perplexity, for few have yet satisfactorily resolved the conundrum of how much pure democracy stability in government can accommodate. The procedure of recall is undeniably one of the more drastic …

"Reference Statutes"--Borrow Now And Pay Later?, R. Perry Sentell Jr.

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In 1923, the General Assembly of Nod enacted the "Statute of Paul" (so designated because of the sponsoring legislator, Paul Perfect), which empowered municipalities of Nod (called "sleepy hollows") to issue licenses to individuals wishing to engage in legitimate private enterprises. One provision of the Paul Statute directed that applicants for such licenses "must make application in the mode prescribed by Code Section 23-112, dealing with county licesning [sic] of pickle processors" (popularly known as the "Peter Pickle Statute"). In 1923, Code Section 23-112 required that an applicant for a pickle processing license submit his application to county licensing authorities …

Selected Oddities In Georgia Municipal Law, R. Perry Sentell Jr.

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Generally speaking, practitioners, jurists, professors, legislators, and students desire certainty in the law. For those interested in the law of municipal corporations in Georgia, however, that search for certainty is frequently frustrating, if not impossible. In his Article, Professor Sentell points to a number of Georgia constitutional and statutory rules which, when read with the interpretations of these provisions by the Georgia courts, generate uncertainty and confusion for one confronted with a question in municipal corporation law. The discussion begins with a look at the definitional uncertainty of what is a municipal corporation under Georgia law, turns next to an …

Personal Liability Of State Officials Under State And Federal Law, Charles R. Mcmanis

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The common law rule of governmental immunity made governments immune from suit and held public officials personally liable for the torts they committed in the performance of their duties. In recent years, however, the law of tort liability has moved toward the increased immunity of governmental officials and employees and the increased liability of governmental units. In this Article Professor McManis first outlines the notion of sovereign immunity, following with an analysis of the nature and the scope of the immunity afforded governmental official sunder federal and state law, with a particular emphasis on the law of Georgia. The author …

Municipal Annexation In Georgia: The Contiguity Conundrum, R. Perry Sentell Jr.

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The Georgia law of municipal annexation possesses a rich history both statutory and decisional. Strangely subdued in this history, however, is the concept of contiguity. Although this term has been stated and defined by the legislature, the concept has historically provoked little controversy, and the courts have stayed away from it with fervor. Recently, this has changed. The purpose here, therefore, is to mark what may well be the origin of a new chapter in the Georgia law of municipal annexation.

Reasoning By Riddle: The Power To Prohibit In Georgia Local Government Law, R. Perry Sentell Jr.

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One of the most significant and potentially objectionable powers exercised by any level of government is the power to regulate or prohibit the trades and occupations of its citizens. Of course, the only avenue for contesting the validity of such regulations is through the courts, at which time the basic tension of the individual’s right to earn a living vs. the government’s power to control his business comes quickly to the forefront. In his Article, Professor Sentell, dealing strictly with the power of Georgia local governments, points out that the Georgia courts have confounded the area by inconsistent consideration of …

Discretion In Georgia Local Government Law, R. Perry Sentell Jr.

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The initial question in evaluating the ability of a municipal corporation to control the affairs of its citizens is the existence of an allocation of power from the state sovereign. Once such power is found, Georgia courts traditionally view any activity within the scope of that power as a privilege of citizenship in a municipal corporation, controlled at the generally unrestricted discretion of the local government. But when and how do such privileges become rights? With an overview of the typical positions taken by Georgia courts on the power of local governments to control the affairs of their citizens, Professor …

Unconstitutionality In Georgia: Problems Of Nothing, R. Perry Sentell Jr.

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Professor Sentell's Article examines the apparently well-established principle in Georgia that an unconstitutional statute is an absolute nullity. Against the backdrop of City of Atlanta v. Gower, Professor Sentell first focuses on the developmen of-the-void-from-inception doctrine and then reviews its application in Georgia. Finally, he concludes that this principle has had a substantial impact upon constitutional and legislative law in this state.

Local Legislation In Georgia: The Notice Requirement, R. Perry Sentell Jr.

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Professor Sentell's commentary concerns Georgia's efforts to curb potential abuses of local or special legislation by requiring notice of such legislation to the affected locality. After examining the ineffectiveness of the notice requirement under Georgia's Constitution of 1877, Professor Sentell focuses upon various aspects of the notice requirement under the Constitution of 1945, and concludes that despite its rather erratic history in Georgia, the notice requirement reasonably serves its purpose as a compromise between the extremes of unrestricted special legislation and no special legislation.

Federalizing Through The Franchise: The Supreme Court And Local Government, R. Perry Sentell Jr.

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Decisionmaking at the local government level has been significantly affected by both national legislation and federal court decisions seeking to protect the right to vote. Indeed, Professor Sentell feels that the Supreme Court, through decisions invalidating restrictions on the franchise, has involved itself to an unparalleled degree in heretofore purely local affairs. In examining these decisions, the author queries if legitimate voting regulations may be now imposed by local governments. In so doing he focuses upon the Court's equal protection analysis of extraordinary majority vote requirements and elections restricted to certain segments of the electorate and upon the expansive judicial …

Municipal Annexation In Georgia: Nay-Sayers Beward (Plantation Pipe Line Co. V. City Of Bremen), R. Perry Sentell Jr.

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In the Fall 1967 issue of the Georgia Law Review, there appeared a somewhat ambitious effort to survey the law of municipal annexation in Georgia. That rather stuffy treatment at least served to demonstrate the existence of a history on the subject dating from the beginning of time in this State. It also purported to make one or two daring thrusts at formulating principles then apparently settled and at identifying legal points around which further evolution might be anticipated.

Some apparently believed that these thrusts were more negative than daring and that they reflected an approach which was basically …

The Legislative Process In Georgia Local Government Law, R. Perry Sentell Jr.

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What our city fathers do as legislators and how they do it impinges upon the daily lives of most of us. Those involved in the production of municipal law and those affected by it will find this study of legislative procedure at the local level of great interest and help. Here is a solid piece of research which will stand for a long time to come.

Georgia Municipal Tort Liability: Ante Litem Notice, R. Perry Sentell Jr.

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Time and again the Georgia courts have spoken on the meaning of various phrases in the notice-of-claim statute, or, as they popularly refer to it, the "ante litem notice" statute. During the last three or four years, the judiciary's activity has been particularly concentrated. Grappling with questions of first impression, changing approaches to interpretation, or confirming prior positions, their decisions must now be understood as a part of the statute itself. What follows is simply a brief effort to summarize this recent judicial activity, hopefully in an orderly fashion. If the traveler is thereby aided in updating his map, the …

Local Government And Contracts That Bind, R. Perry Sentell Jr.

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To paraphrase a modern slogan, in local government law "little goes right if the contract's too tight." For the layman who bargains in good faith with a municipality or county, the introduction to this principle can be a jolt. TO be told that his contract was not a contract, because it would have unduly bound the local government, must prompt serious doubts in his mind about the law commanding this result. To be told that he is legally presumed to know this must confirm his suspicions. But the principle is a well-established one, existing in most jurisdictions from early times. …

Avery V. Midland County: Reapportionment And Local Government Revisited, R. Perry Sentell Jr.

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Earlier in the pages of this Review the judicial application of the "one-man-one-vote" standard to local government is discussed in detail. As noted, the United States Supreme Court did not completely evolve this standard for state legislatures until June, 1964. Since that time, the state courts and the lower federal courts have been inundated with litigation raising the question of the basic applicability of the standard to local governments in this country, as well as a host of accompanying inquiries. This litigation and the courts' reactions to it were extensively traced. At the close of its term, however, the Court …

The Law Of Municipal Annexation In Georgia: Evolution Of A Concept?, R. Perry Sentell Jr.

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The time has come to think seriously and in detail about municipal annexation. The effort here, then, represents a return to basics. The justification for it rests on the point that Georgia does indeed possess a rich history in annexation law. What of this history? How has it dictated the law's development? What are the methods of annexation presently available to municipalities in Georgia? Upon what authority are these methods bottomed, and what are the possible limitation upon their effectiveness? Is the point at which the law has now arrived the culmination of evolving a deliberate concept or simply the …