Judges Charlie Bethel (left) and John Ellington, Georgia Court of Appeals With a 2-1 vote, the Georgia Court of Appeals has thrown out a $10.6 million verdict against the city of Albany, which was sued after a man was killed at a violence-plagued unlicensed nightclub the city had allowed to stay in business while prosecutors and police investigated criminal activity there. The majority opinion, authored by Judge Charlie Bethel, with the concurrence of recently appointed Judge Elizabeth Gobeil, said the city is protected by sovereign immunity. Presiding Judge John Ellington dissented, arguing that long-standing legal precedent makes clear that sovereign immunity does not protect a municipality for the maintenance of a “nuisance” that is “dangerous to life and health.” The ruling sets up another potential dive into the breadth of sovereign immunity for the Georgia Supreme Court, where a series of rulings in recent years has steadily narrowed the ability of plaintiffs to sue government entities or challenge statutes. “W e certainly believe Judge Ellington's dissent correctly explains the problem the majority's opinion creates with the current state of the law and will continue to pursue all avenues on appeal, including a petition for certiorari to the Georgia Supreme Court,” said Virgil Adams of Macon's Adams, Jordan & Herrington, who represents the plaintiffs with partners James Jordan and Caroline Herrington. On appeal, Albany was represented by a team of Freeman, Mathis & Gary attorneys Sun Choy, Jacob Daly and Wesley Jackson, Georgia Municipal Association Associate General Counsel Rusi Patel and Albany City Attorney C. Nathan Davis.   Choy and Daly said the majority opinion simply aligns with court precedent since a 1993 Georgia Supreme Court ruling shielding the city of Rome from liability for failing to dispatch emergency responders after several 911 calls, leading to a woman's suffering serious injury. That case was City of Rome v. Georgia, 426 S.E.2d 861. Choy said he was confident the ruling would survive challenge if accepted at the high court. “When we first heard about this judgment down in Albany, I was surprised it even went to a jury,” Choy said. “These are big public policy decisions that have already been made,” he said. “Under the broad nature of 'nuisance,' as applied by statute and common law, by definition the city would always have knowledge of crime being committed.” “[The plaintiffs] are really complaining that the city did not close Brick City down,” said Daly, referring to the nightclub. “The law is crystal clear: whether or not to yank their license is clearly a governmental function, and is constitutionally protected without a specific waiver of sovereign immunity. ”At the end of the day, it's all about policing decisions,” he said.   As far as holding a municipality responsible for a third party's actions, “there's not a single case allowing that,” said Choy. The case involved the 2010 Valentine's Day murder of 20-year-old LaSheldon Stanford at the now-defunct club, nominally a recording studio that was also the site of numerous reported crimes. A  raid uncovered evidence of alcohol sales, drugs and guns. Brick City did not have a license to serve alcohol. Albany code enforcement recommended that Brick City's occupancy license be pulled, but a hearing on this issue never happened because the local district attorney and police wanted to further investigate crime there. Two days after the license was reissued, Edwards said, a fight broke out and Stanford was shot six times and killed. The shooter, Shenard Smith, was convicted of murder and is serving a life sentence. Two weeks later, the city council revoked Brick City's license. Stanford's parents filed a nuisance and negligence complaint against Albany and Brick City Productions' owners, Daniel and Molly Loving, who never responded to the suit. After a trial before Dougherty County Superior Court Judge Willie Lockette, the jury awarded $15.2 million in damages, apportioning 70 percent of the liability — more than $10.6 million — to the city. The city filed a motion for judgment notwithstanding the verdict or for a new trial, which Lockette denied. The city appealed on multiple grounds, but the appellate panel never got beyond the sovereign immunity issue.   Bethel's majority opinion said that municipalities are granted sovereign immunity under the state's 1983 Constitution unless specifically waived by the Legislature, and that subsequent rulings have made clear that the courts “no longer have the authority to abrogate or modify the doctrine of sovereign immunity as they could when it was the product of the common law” instead of the Constitution. While there is legal precedent for municipalities being held liable for damages “caused from the operation or maintenance of a nuisance,” Bethel wrote, the “nuisance exception” the plaintiffs asserted “is not an exception at all, but a proper recognition that the Constitution itself requires just compensation for takings and cannot, therefore, be understood to afford immunity in such cases.” Georgia law provides a “narrow waiver” of sovereign immunity for “neglect to perform or for improper or unskillful performance of their ministerial duties,” but municipalities are still immune for acts that constitute a “governmental function.” “In the case before us, we conclude that the city was exercising a governmental function when it opted not to revoke the occupational tax certificate of Brick City,” Bethel wrote. Ellington said his fellow judges got it wrong. Citing the Court of Appeals' 1996 ruling in Hibbs v. City of Riverdale, 267 Ga. 337, Ellington wrote that while sovereign immunity protects a city from negligence claims arising from a governmental function, "it may be liable for damages it causes to a third party from the creation or maintenance of a nuisance.”    In this case, the “nuisance at issue is dangerous to life and health,” Ellington said. The majority's opinion “writes this longstanding and important exception to the protection of sovereign immunity out of Georgia law.” Daly, one of Albany's lawyers, said the majority opinion represented sound public policy. “In our brief we talked about the amount of the jury verdict in relation to the city of Albany's budget,” he said, noting that $10.6 million was more than 17 percent of the city's general fund budget for 2018.  “That could mean dire consequences for other city services,” he said. Allowing Ellington's interpretation to prevail could also threaten the solvency of hundreds of small municipalities around the state, said Daly.