Appeals Court Rules That Slain Court Reporter’s Family Can Sue Sheriff
The Georgia Court of Appeals has ruled that the family of the county court reporter killed in the March 11, 2005, courthouse shootings may sue the Fulton County sheriff for negligence.
In a nine-page opinion released Thursday, the three-judge appellate panel overturned a lower court finding that Fulton County Sheriff Myron E. Freeman is a county employee. Instead, he is “an elected constitutional county officer,” the appellate panel found, noting that Georgia’s Constitution “has made the sheriff independent from the county, notwithstanding the sheriff’s designation as a county officer.”
The distinction could be critical in the litigation against Freeman.
Fulton County staff lawyers defending Freeman have argued that the sheriff couldn’t be sued by the family of slain court reporter Julie Ann Brandau because such litigation is barred by the federal Workers Compensation Act, which generally bars all claims by an injured employee against a co-employee or employer.
The appellate ruling by Judge Herbert E. Phipps (who authored the opinion), Presiding Judge Edward H. Johnson and Chief Judge Anne Elizabeth Barnes will allow Brandau’s daughter and sole heir, Christina E. Scholte, and her estate’s executrix, Gertrude Brandau, to seek a monetary judgment from a jury rather than have their remedies limited to potentially far smaller workers’ compensation benefits.
Andrew M. Scherffius III, who represents the Brandau family, couldn’t be reached for comment Friday.
Senior Fulton County attorney R. David Ware, one of the county attorneys defending Freeman, also could not be reached for comment.
Brandau and Judge Rowland W. Barnes (no relation to Court of Appeals Judge Anne Elizabeth Barnes) were gunned down in Barnes’ courtroom during a civil hearing. The suspect in the slayings, Brian G. Nichols, was a rape defendant in a trial before Barnes. Nichols, who was in the sheriff’s custody, allegedly overpowered a deputy, took her gun and then shot Brandau, Barnes, sheriff’s deputy Hoyt Teasley, and later that day, federal agent David Wilhelm. Nichols’ trial for those slayings is slated to resume July 10.
The shootings have generated civil litigation against the county sheriff by the families of the four slaying victims and Barnes’ former case managers Susan R. Christy and Gina Clarke, who were among those held hostage in the judge’s chambers just prior to the shootings. Deputy Cynthia Hall, who was badly injured when Nichols escaped from her custody, also has sued the sheriff.
Brandau’s daughter has sued Freeman and eight deputies, claiming that their negligence led to the slayings.
Scherffius, the Brandau estate’s attorney, also has argued that Brandau was not acting as a county employee the day she was killed because she was performing independent contract work commissioned by a lawyer in private practice. County court reporters may be retained by private parties to transcribe hearings in civil matters. Payment for those private transcripts supplements a court reporter’s county salary.
Last year, DeKalb County State Court Judge J. Antonio DelCampo concluded that Brandau and Freeman were county employees. DelCampo also rejected arguments that Brandau was a contract worker, deciding that although she had been paid as a contractor to transcribe the hearing, she was a county employee because she received a county salary for her time spent at the courthouse during regular working hours.
DelCampo relied on a 2006 opinion by the state appellate court in a companion case brought by Judge Barnes’ widow, Claudia Barnes. In that earlier decision, a different appellate panel found that while Freeman was a county employee, the judge was an elected official.
Judge Anne Elizabeth Barnes wrote the opinion and was the only jurist to serve on both panels. Judges Debra Bernes and Gary B. Andrews also deliberated on the Claudia Barnes appeal.
In Thursday’s ruling, the appellate panel drew a technical distinction between the 2006 ruling in the Barnes litigation and its current stance in the Brandau case. The 2006 appellate ruling “did not directly address whether Freeman was a Fulton County employee,” Phipps wrote in his opinion. The earlier appellate panel had found that Freeman was not a state employee “for workers’ compensation purposes.” Wrote Phipps: “Inclusion in the civil service system does not necessarily establish employee status for workers’ compensation purposes.”
Thursday’s appellate opinion also found that local legislation “does not define elected officers as county employees. … Nor does the Fulton County Code’s civil service article define elected officers as county employees for workers’ compensation purposes. In fact, the only definition of ‘county employee’ found in that article specifically excludes ‘elected officials.’ Further, Georgia courts previously have held that public officers subject to civil service rules were not eligible for workers’ compensation benefits.”
That ruling will allow the Brandau suit to go forward.
The state appellate panel didn’t address directly another issue that could be pivotal in the litigation. DelCampo had ruled that the sheriff could be sued because he “owed a unique duty to protect superior court judges and their staffs, including court reporters, and that he could be held liable for breaching that duty,” regardless of workers’ compensation strictures.
The panel affirmed the lower court judgment only, rather than the reasoning behind it, stating, “We need not decide whether the trial court correctly ruled.”
The appellate panel also declined to address whether Brandau was a county employee or an independent contractor while she was transcribing the hearing when she was killed. “Because we conclude that Freeman was not a county employee, we do not reach this issue,” the opinion stated.
The case is Freeman V. Brandau, No. A08A0339; Brandau v. Freeman, No. A08A0340.