A lawsuit over the powers of the Fayette County Marshal’s Department will be heading back to a Fayette courtroom, thanks to a ruling by the Georgia Supreme Court May 8.

The court sent the case back to trial here to determine if the dozen-man marshal’s department was actually operating as a county police department in 1992, when a state law required a voter referendum before empowering a county police force.

However, the court ruled that the Fayette County Commission in 1989 did legally create a county police department, even though the officers retained the title of marshals and no announcement was made at the time by the county of the creation of such a force.

The only question to be decided now, the high court said, is whether the marshals were acting like a county police force in 1992, a key element in whether the sheriff or the county will win the lawsuit.

The commission in 1989 “intended to create within the [Fayette County Marshal’s Department] a county police force with full police powers,” the high court ruled.

According to the May 8 summary of the ruling, “[Fayette County Sheriff Randall] Johnson contends that there remain factual issues regarding whether Fayette County Marshal’s Department was in operation and existence as a county police force on Jan. 1, 1992. Construing the facts and inferences most favorably to Johnson, as the non-moving party, we agree.”

Johnson said Tuesday that he was pleased with the Supreme Court’s decision.

“I just want it to be over with,” Johnson said. “It wasn’t a working police department. (Commission Chairman Greg) Dunn started putting it in the paper to turn it into a county police force. We tried to tell him it wasn’t an operational police force.”

A message left for Dunn Monday was not returned by press time Tuesday afternoon.

The court’s ruling overturned the summary judgment granted in favor of the county by Senior Superior Court Judge William Ison last July.

The suit was initially filed in Fayette Superior Court by the commission after Sheriff Johnson refused to house a prisoner who was arrested for DUI by a county marshal in December 2003. Johnson claimed doing so would put him and the county at a risk for civil liability because the marshal’s office, he thought, was not an official police department.

It’s the second week in a row that the sheriff has come away with at least a partial win in the court in the current controversy with the commission.

Last week Judge Ison ruled the sheriff could make his own purchases apart from the county’s purchasing department system, a setback to the commission, which had sought to bring the sheriff’s department under the county purchasing rules. The judge did rule that the sheriff’s surplus property must be disposed of through the county system.

In the marshal’s case, Ison had ruled that there were no issues of fact to be determined at trial, but the Supreme Court’s majority decision indicated there are questions about whether the marshal’s department was active as a police force by a date established by the Georgia legislature.

The Supreme Court remanded the case back to Ison in a 6-1 decision that was published Monday morning.

The majority Supreme Court opinion indicated there is a legitimate question of fact as to whether the marshal’s department was acting as a police force before Jan. 1, 1992. Georgia law forbids counties from creating police departments after that date without first getting approval from voters in a referendum or ordinance.

The Supreme Court opinion noted that former County Manager Billy Beckett, who served from 1985 to 2000, and former County Commission Dan Lakly, who served from 1989 to 1992, said the marshal’s department was only authorized to monitor county property, assist with internal investigations involving county employees and enforce county ordinances.

“More specifically, both men stated in their affidavits that during the relevant time period FCMD marshals did not patrol traffic or operate radar devices, did not conduct criminal investigations other than in relation to violations of county ordinances, did not serve warrants or civil process, did not make felony arrests, with the possible exception of one involving a county employee, and the FCMD did not operate as a county police force,” wrote Justice Carol W. Hunstein in the majority opinion.

“This evidence authorizes an inference that the FCMD, although authorized to operate as a county police force on Jan. 1, 1992, was not in operation and existence as such police force as of Jan. 1, 1992. Accordingly, we find the trial court erred in granting summary judgment as to these factual issues,” Hunstein wrote.

The Supreme Court decision was not unanimous, with Justice Harold Melton voting in dissent. In his opinion, Melton wrote that Beckett and Lakly noted in their depositions that the marshal’s department carried out a number of police functions.

“Thus, they admit that the FCMD, despite their erroneous [legal] opinion otherwise, was both in existence and performing police functions during their tenure as county officials,” Melton wrote.

In a footnote, Melton added: “It would be illogical to conclude that a police force cannot be considered operational because it performed some police powers but not others.”

The Supreme Court agreed with Judge Ison’s decision to grant summary judgment on the basis that the marshal’s department was created in 1983 by the board of commissioners.

The full ruling by the Supreme Court is online at www.TheCitizen.com.