CAMDEN COUNTY v. SWEATT, JUDGE ( 2023 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: February 7, 2023
S22A0837. CAMDEN COUNTY v. SWEATT, et al.
MCMILLIAN, Justice.
Camden County (the “County”) appeals the superior court’s
denial of its “Petition for Writ of Prohibition and Other Relief”
concerning an order entered by Camden County Probate Judge
Robert C. Sweatt, Jr., setting a special election for a referendum on
whether resolutions authorizing the County’s purchase of land for a
rocket launch facility should be repealed (the “Referendum”). The
County asserts that the Referendum was not authorized under
Subsection (b) (2) of Article IX, Section II, Paragraph I of the Georgia
Constitution, which established home rule for counties in this state
(the “Home Rule Paragraph”)1 and that the results of the
1The full text of the Home Rule Paragraph is attached as Appendix I to
this opinion.
Referendum are a nullity. As a result, the County argues that the
superior court erred in denying its petition for writs of prohibition
and mandamus against Judge Sweatt and its petition for a judgment
declaring that the Referendum was not authorized under the
Constitution. We disagree and affirm for the reasons set forth
below.2
The facts are undisputed. Beginning in 2015, the Board of
Commissioners for Camden County, Georgia (the “Board”) began
making plans to build a commercial rocket launch facility (the
“spaceport”) in Camden County. On June 3, 2015, the Board
approved the County’s entry into an option agreement with Union
Carbide Corporation (the “Option Agreement”) for the purchase of
certain land on which to build the spaceport and later approved
amendments to the Option Agreement that apparently extended the
2 We are aided by helpful amicus curiae briefs filed by (1) Association
County Commissioners of Georgia and (2) Ben Goff, Jacqueline Eichhorn,
University of Georgia School of Law First Amendment Clinic, and the Georgia
First Amendment Foundation. We thank them for their assistance.
2
length of the option period. 3 However, citizen opposition to the
project arose over time, and on December 14, 2021, 4 a number of
registered electors in the County filed a petition under the Home
Rule Paragraph in the Probate Court of Camden County (the
“Electors’ Petition”), seeking a special election for a referendum on
the issue of whether the Board’s resolutions authorizing the Option
Agreement and its extensions (the “Resolutions”) should be
repealed.
The County filed a caveat to the Electors’ Petition alleging that
the petitioners failed to meet the requirements of the Home Rule
Paragraph because the filing contained a number of duplicate and
inconsistent voter signatures, which brought the number of electors
below the Home Rule Paragraph’s requirement for obtaining a
referendum. Judge Sweatt issued an order dismissing the caveat on
3 Although the amendments to the Option Agreement extending the
option period are not in the record on appeal, the parties do not contest that
the Option Agreement was extended several times.
4 That same day, two electors, James Goodman and Paul A. Harris, also
filed suit in the Superior Court of Camden County to prevent the County from
closing on the purchase of the land for the spaceport and obtained a temporary
restraining order to that effect. However, the superior court later denied
injunctive relief following an evidentiary hearing.
3
February 8, 2022 (the “Caveat Order”), determining that there is no
legal authority for filing an objection to a petition filed by electors
under the Home Rule Paragraph, and even if such authority existed,
the County’s caveat was not verified as required under Georgia law.
See OCGA § 15-9-88 (In probate court, “[a]ll objections or caveats to
an order sought shall be in writing and verified, setting forth the
grounds of such caveat.”).
That same day, February 8, 2022, Judge Sweatt also issued an
order granting the Electors’ Petition (the “Referendum Order”). The
order determined that (1) the required number of verified electors
had signed the petition; (2) the petition requested that the following
question be put to the County’s electors at a special election called
pursuant to the Home Rule Paragraph:
Shall the resolutions of the Board of Commissioners of
Camden County, Georgia authorizing the Option
Contract with Union Carbide Corporation and Camden
County’s right and option to purchase the property
described therein be repealed[;]
and (3) the petition satisfied the requirements of the Home Rule
Paragraph. Based on these findings, the order directed that a special
4
election on the question would be held on March 8, 2022. The County
did not attempt to appeal either the Referendum Order or the
Caveat Order.
However, prior to the special election, on February 24, 2022,
the County filed a “Petition for Writ of Prohibition and Other Relief”
in the Superior Court of Camden County against Judge Sweatt and
also named James Goodman and Paul A. Harris, who had been
among the electors to sign the Electors’ Petition, as interested
parties who may wish to intervene in the proceeding. The petition
sought writs of prohibition and mandamus against Judge Sweatt,
asserting that he had exceeded the probate court’s jurisdiction in
setting the special election. The petition also sought a declaratory
judgment that the Electors’ Petition was invalid, the Referendum
Order was a nullity, and the Referendum was unauthorized, along
with further declaratory relief to avoid consequences to the County
arising from the Referendum. Goodman and Harris successfully
5
moved to intervene in this action on February 25, 2022.5 An
expedited hearing was held on March 3, 2022, and the next day,
March 4, the superior court issued a written order6 summarily
denying the County’s petition.7 On March 8, 2022, the Referendum
was held, resulting in a vote in favor of repealing the Resolutions.
In considering the County’s appeal in this case, we will address
separately each form of relief sought in the County’s Petition: (1)
writ of mandamus; (2) declaratory judgment; and (3) writ of
prohibition.
1. Writ of Mandamus: The County petitioned the superior court
5 Goodman and Harris are hereinafter referred to collectively as the
“Intervenor-Appellees.”
6 This order also denied as moot a motion filed by the Intervenor-
Appellees seeking to dismiss the County’s petition.
7 On March 4, 2022, the same day the superior court issued its order, the
County filed an emergency motion in the Court of Appeals seeking to prevent
the probate court from certifying the results of the Referendum, and the Court
of Appeals transferred the matter to this Court several days later. We denied
the emergency motion on March 10, 2022. See Case No. S22M0759. On March
14, 2022, the County filed an application for Interlocutory Appeal, which we
dismissed on the ground that the County was entitled to a direct appeal from
the superior court’s order. See Case No. S22I0782. The County’s separate
direct appeal was docketed in this Court and orally argued by the parties on
October 6, 2022, at a special session held in Augusta, Georgia.
6
for a writ of mandamus pursuant to OCGA §§ 9-6-208 and 9-6-21, 9
asserting that it is entitled to such relief “because the constitutional
provision does not allow for a referendum in this circumstance.” The
County’s petition for mandamus sought a writ commanding Judge
Sweatt to “abandon his exercise of jurisdiction over the Petition;”
“refrain from canvassing the returns and declaring and certifying
the results of the March 8 election to the County”; “refrain from
certifying the results of the March 8 election to the Secretary of
State”; and “issue an order declaring the Petition invalid.”
8 Under OCGA § 9-6-20,
[a]ll official duties should be faithfully performed, and whenever,
from any cause, a defect of legal justice would ensue from a failure
to perform or from improper performance, the writ of mandamus
may issue to compel a due performance if there is no other specific
legal remedy for the legal rights; provided, however, that no writ
of mandamus to compel the removal of a judge shall issue where
no motion to recuse has been filed, if such motion is available, or
where a motion to recuse has been denied after assignment to a
separate judge for hearing.
9 OCGA § 9-6-21 (a) provides:
Mandamus shall not lie as a private remedy between individuals
to enforce private rights nor to a public officer who has an absolute
discretion to act or not to act unless there is a gross abuse of such
discretion. However, mandamus shall not be confined to the
enforcement of mere ministerial duties.
7
This Court has described a writ of mandamus as
an extraordinary remedy to compel a public officer to
perform a required duty when there is no other adequate
legal remedy. It is a discretionary remedy that courts may
grant only when the petitioner has a clear legal right to
the relief sought or the public official has committed a
gross abuse of discretion. In general, mandamus relief is
not available to compel officials to follow a general course
of conduct, perform a discretionary act, or undo a past act.
Gaddy v. Ga. Dept. of Revenue, 301 Ga. 552, 561-62 (3) (802 SE2d
225) (2017) (citation omitted and emphasis supplied). See also
R.A.F. v. Robinson, 286 Ga. 644, 646 (1) (690 SE2d 372) (2010)
(“Mandamus can be used to compel an official to exercise his or her
discretion, but not to direct the manner in which that discretion is
exercised.” (citation and punctuation omitted)). Rather, “mandamus
relief applies prospectively only. It will not lie to compel the undoing
of acts already done and this is so even though the action taken was
clearly [in violation of the Georgia Constitution].” Atlanta
Independent School System v. Lane, 266 Ga. 657, 660 (6) (469 SE2d
22) (1996) (affirming denial of mandamus relief seeking repayment
of amounts paid by city to school district under an agreement that
8
violated the Georgia Constitution).
Under the Home Rule Paragraph, the probate court judge’s
first responsibility upon receipt of a petition filed by electors for a
special election is “[to] determine the validity of such petition.” Ga.
Const. of 1983, Art. IX, Sec. II, Par. I (b) (2) (hereinafter
“subparagraph (b) (2)”). If the judge determines that the petition is
valid, “it shall be his duty to issue the call for an election for the
purpose of submitting such amendment or repeal to the registered
electors of the county for their approval or rejection” and to follow
certain other procedures in conjunction with that election. Id. 10 If
the judge determines that the petition is invalid, “he shall cause to
be published in explicit detail the reasons why such petition is not
valid[.]” Id. Here, Judge Sweatt determined that the Electors’
Petition was valid and called the special election on February 8,
2022. The special election took place on March 8, 2022, and Judge
Sweatt thereafter certified the results. On appeal, the County
10 The County does not deny that Judge Sweatt has complied with the
remaining requirements and procedures of subparagraph (b) (2) with regard to
the election.
9
contends that the Superior Court should have issued a writ of
mandamus to reverse the judge’s determination that the Electors’
Petition was valid. In other words, the County asks for a writ of
mandamus commanding the judge to undo his determination and
the acts that followed. Under these circumstances, we conclude that
the superior court properly denied the County’s petition for a writ of
mandamus because it sought only to compel Judge Sweatt to undo
actions he had already taken.
2. Declaratory Judgment: The County contends that the
superior court erred in denying the declaratory relief it sought11
11 The County sought a declaratory judgment on the following issues:
[t]hat the Petition is invalid under [the Home Rule Paragraph];
[t]hat the [Referendum Order] . . . is a nullity because it was issued
beyond the Probate Court’s jurisdiction and in violation of the
Constitution; [t]hat as a result of the nullity of the [Referendum
Order], the March 8 [Referendum] is unauthorized and in
contravention of the Constitution; [t]hat as a result, the County is
not obligated to expend funds for an illegal election because it
would violate Georgia law; [t]hat as a result, the repeal of the
resolutions as would be effected by the [Referendum] will be
invalid as “inconsistent” with the Constitution; [t]hat as a result,
the status of the Option Contract would remain unaffected by the
returns of the [Referendum] or any further action taken by the
Honorable Judge Sweatt including, but not limited [to], Judge
Sweatt’s further exercise of jurisdiction over the [Electors’]
Petition in contravention to the writs petitioned for herein.
10
because the Electors’ Petition was not authorized under the Home
Rule Paragraph. 12
(a) Before we address the merits of the County’s argument,
however, we first consider the Intervenor-Appellees’ assertion that
the County is not authorized to pursue an action for declaratory
judgment because it became a party to the probate court proceedings
when it filed a caveat to the Elector’s Petition and then failed to
(Citation and paragraph numbering omitted.)
12 Judge Sweatt argues on appeal that sovereign immunity bars a
request for declaratory relief against him in his official capacity, citing
GeorgiaCarry.Org, Inc. v. Bordeaux, 352 Ga. App. 399, 403 (3) (834 SE2d 896)
(2019) (concluding that the probate judge was a public employee of the State
and could assert sovereign immunity when sued in his official capacity by
entity in connection with issuing a gun carry license). However, sovereign
immunity does not apply to lawsuits between political subdivisions of the State
because “[n]either entity retains a superior authority over the other that would
prevent it from being hailed into a court of law by the other.” City of College
Park v. Clayton County, 306 Ga. 301, 311 (1) (b) (830 SE2d 179) (2019).
Likewise, the County is not sovereign over Judge Sweatt, who was sued in his
official capacity, nor is Judge Sweatt sovereign over the County. Rather, they
stand on equal footing for purposes of sovereign immunity in this case because
“a suit against a county officer in [his] official capacity is a suit against the
county itself.” Layer v. Barrow County, 297 Ga. 871, 871 (1) (778 SE2d 156)
(2015) (emphasis in original). See also Gilbert v. Richardson, 264 Ga. 744, 746
(4), n. 4 (452 SE2d 476) (1994). Thus, sovereign immunity does not apply to
this lawsuit. See City of College Park, 306 Ga. at 311 (1) (b). Judge Sweatt does
not otherwise argue that he was not the appropriate respondent in the
County’s petition for declaratory judgment, so we express no opinion on that
issue.
11
appeal the Referendum Order validating the petition. The
Intervenor-Appellees contend that the County is barred “both as a
matter of collateral estoppel and as a failure of a prerequisite to its
substantive claims.” We disagree.
As to collateral estoppel, and assuming without deciding that
the Electors’ Petition is an “action” to which the doctrine of collateral
estoppel applies, the doctrine does not bar the County because the
County was never a party to the probate court proceedings. “The
doctrine of collateral estoppel precludes the re-adjudication of an
issue that has previously been litigated and adjudicated on the
merits in another action between the same parties or their privies.” 13
Copelan v. Copelan, 294 Ga. 840, 841 (755 SE2d 739) (2014) (citation
and punctuation omitted; emphasis supplied). See also Pike County
v. Callaway-Ingram, 292 Ga. 828, 832 (2) (742 SE2d 471) (2013).
13 “A privy is generally defined as one who is represented at trial and
who is in law so connected with a party to the judgment as to have such an
identity of interest that the party to the judgment represented the same legal
right.” Lilly v. Heard, 295 Ga. 399, 404 (2) (c) (761 SE2d 46) (2014) (citation
and punctuation omitted). The Intervenor-Appellees do not contend that any
party involved in the probate court proceedings was the County’s privy.
12
Therefore, the claims of an individual or entity who was not a party
to, and whose interests were not represented in, the prior action will
not be barred by collateral estoppel. See In re T.M.G., 275 Ga. 543,
544 (570 SE2d 327) (2002) (foster parents’ claim for adoption of child
not barred because they were not a party to earlier adoption
proceeding with different prospective parents, nor were their
interests represented by the parties to that proceeding).
This Court has defined the term “party to an action” to include
“all who are directly interested in the subject matter, and who have
a right to make [a] defense, control the pleadings, examine and
cross-examine witnesses, and appeal from the judgment.” State Bar
of Ga. v. Beazley, 256 Ga. 561, 563 (1) (b) (350 SE2d 422) (1986)
(citations omitted).14 See also Smith v. Gettinger, 3 Ga. 140, 142
(1847) (plaintiff was not a party to a prior attachment action
rendered in favor of defendant against a third party where he “had
14 Although this definition arose in the context of res judicata, we see no
reason why the same definition would not apply equally for the doctrine of
collateral estoppel. See Butler v. Turner, 274 Ga. 566, 568 (1) (555 SE2d 427)
(2001) (both res judicata and “[t]he related doctrine of collateral estoppel . . .
require[ ] the identity of the parties or their privies in both actions”).
13
no power, in his own right, to make a defense against [the
attachment], to adduce testimony, to examine witnesses, to control
the proceedings, or to enter an appeal”).
The County did not become a party to the probate court
proceedings. As Judge Sweatt determined, even though the County
filed a caveat opposing the Elector’s Petition, it had no right to make
a defense to the petition. The Home Rule Paragraph makes no
provision authorizing a county, or any other party, to file a caveat,
or any other form of opposition, to an elector’s petition in the probate
court. Instead, the Home Rule Paragraph provides that elections
called by the probate judge under that paragraph “shall be held
under the same laws and rules and regulations as govern special
elections, except as otherwise provided herein.” Ga. Const. of 1983,
Art. IX, Sec. II, Par. I (b) (2). OCGA § 21-2-540 (a) (1) provides that
every . . . special election shall be held and conducted in
all respects in accordance with the provisions of this
chapter relating to general primaries and general
elections; and the provisions of this chapter relating to
general primaries and general elections shall apply
thereto insofar as practicable and as not inconsistent with
any other provisions of this chapter.
14
And those special election “laws and rules and regulations” make
clear that the County was not a party to the probate court
proceedings.
With respect to challenging an election, the statute governing
contests to elections provides in pertinent part: “[T]he approval or
disapproval of any question submitted to electors at an election may
be contested by . . . any aggrieved elector who was entitled to vote .
. . for or against such question.” OCGA § 21-2-521. The statute thus
limits the right to contest elections to “electors.” Because the County
is not an elector, it would not be authorized to contest the outcome
of the special election under the Election Code. Moreover, we could
not locate, and the Intervenor-Appellees do not point out, any
authority in the Election Code, OCGA § 21-2-1 et seq., or otherwise
that would allow the County to file a caveat or any other objection
before an election and contest an application to submit a question to
the electorate under the Home Rule Paragraph. Where there is no
authority for a county to participate in the petitioning for a special
15
election under the Home Rule Paragraph, the County cannot be said
to have a “direct interest” in the probate court proceedings in this
case.
The conclusion that the County was not a party to the probate
court proceedings also answers the Intervenor-Appellees’ assertion
that the County had to appeal the Referendum Order before seeking
a declaratory judgment. Because the County was not a party to the
probate court proceedings, it had no right to appeal the Referendum
Order. See State v. Cash, 298 Ga. 90, 93 (1) (b) (779 SE2d 603) (2015)
(“[T]he Appellate Practice Act, see OCGA §§ 5-6-30 to 5-6-51 . . .
grants the right of appeal only to either party in any civil case and
the defendant in any criminal proceeding.” (citation and
punctuation omitted)). Cf. Davis v. Deutsche Bank Nat. Trust Co.,
285 Ga. 22, 24 (673 SE2d 221) (2009) (trial court’s ruling disposing
of appellant’s motion to intervene entered contemporaneously with
a ruling granting summary judgment to one of the parties to the suit
“does not make [appellant] a party to the suit, and does not confer
standing on her to appeal the grant of partial summary judgment to
16
one of the parties”).15 And we could locate no authority authorizing
15 To the extent that the Appellee-Intervenors also argue that the County
nevertheless should have moved to intervene in the probate court proceedings,
the Appellee-Intervenors do not cite, nor could we find, legal authority under
which the County would have been permitted to take such action. In Georgia,
non-party intervention in court proceedings is governed by OCGA § 9-11-24 of
Georgia’s Civil Practice Act (“CPA”). However, application of the CPA is limited
to “actions of a civil nature whether cognizable as cases at law or in equity,”
OCGA § 9-11-1 (emphasis supplied), or special statutory proceedings as
prescribed in OCGA § 9-11-81. Georgia law governing probate court
proceedings provides for intervention only in civil cases. See OCGA § 15-9-122
(“Unless provided to the contrary [under the law], the general laws and rules
of practice, pleading, procedure, and evidence that are applicable to the
superior courts of this state shall be applicable to and govern in civil cases in
the probate courts.” (emphasis supplied)); U. Probate Court R. 2.7 (B) (allowing
parties to intervene “in civil cases before Article 6 Probate Courts” (emphasis
supplied)). While the CPA does not define “actions of a civil nature,” it provides
that “‘[c]ivil action’ means an action founded on private rights, arising either
from contract or tort,” OCGA § 9-2-1, and the Georgia Code defines “civil case”
in the context of probate courts as “those civil matters” that meet certain
conditions. OCGA § 15-9-120 (1).
Here, the Electors’ Petition was not based on the violation of any private
right; rather, it was based on the home rule power conferred on counties under
the Home Rule Paragraph and the concomitant power conferred on the
electorate to amend or repeal an ordinance, resolution, or regulation adopted
by a county’s governing authority. Moreover, the Home Rule Paragraph
describes the process by which the electorate may seek to amend or repeal
certain “local acts or ordinances, resolutions, or regulations” and does not refer
to the procedures set out under the CPA. Ga. Const. of 1983, Art. IX, Sec. 2,
Par. I (b) (2). And although OCGA § 9-11-81 provides that the CPA’s provision
governing intervention, OCGA § 9-11-24, also applies to all special statutory
proceedings in this state, the Home Rule Paragraph cannot be classified as
establishing a “special statutory proceeding” as it arises under the Georgia
Constitution, not the Georgia Code. Thus, we see no reason to characterize the
Electors’ Petition as a civil action or a special statutory proceeding in which
intervention under the CPA would apply.
17
the County to appeal the Caveat Order. Although the Appellate
Practice Act provides for direct appeals from “[a]ll judgments or
orders sustaining motions to dismiss a caveat to the probate of a
will,” OCGA § 5-6-34 (9), no similar provision exists for judgments
or orders denying caveats under any other circumstances.
Accordingly, we conclude that because the County was not a
party to the probate court proceedings, its claim for declaratory
relief is not barred by either collateral estoppel or its failure to take
further direct action with regard to those proceedings. See
Callaway-Ingram, 292 Ga. at 832 (2) (prior litigation “did not, and
could not, conclude the claims” of defendant, because she was not a
party to the prior case).
(b) We turn now to the County’s argument that it is entitled to
declaratory relief because the special election procedures under the
Home Rule Paragraph do not apply to the Resolutions in this case.
To begin, we briefly review the history of home rule in Georgia.
In 1965, the Georgia legislature first established home rule for local
governments, by enacting the Municipal Home Rule Act of 1965,
18
OCGA § 36-35-3 (b), and simultaneously proposing an amendment
to the Georgia Constitution to provide home rule for counties, which
was ratified by the state’s voters in 1966. See R. Perry Sentell, Jr.,
The Georgia Home Rule System, 50 Mercer L. Rev. 99, 105-06 (II)
(A) (1998).16 Prior to that time, the General Assembly exercised
plenary power over local government. See id. (“Few jurisdictions
equaled Georgia’s adamant resistance to the home rule movement.
The state’s historic devotion to legislative supremacy held strong for
many [decades].”). As this Court has previously found and as
discussed further below, the system of “home rule” for counties
established under the Home Rule Paragraph confers “two
‘legislating’ powers” to Georgia counties. Bd. of Commrs. of Miller
County v. Callan, 290 Ga. 327, 328 (1) (a) (720 SE2d 608) (2012),
quoting Sentell, 50 Mercer L. Rev. at 133 (III) (A) (4). “At the first
16 This disparity is explained by the fact that the Georgia Constitution
previously had been amended to allow for the passage of municipal home rule
legislation, but the Constitution contained no such provision for counties.
Therefore, the legislature’s only option was to propose a constitutional
amendment in order to establish home rule for counties. See Sentell, 50 Mercer
L. Rev. at 110 (II) (B) (2).
19
tier, the [county’s] governing authority is empowered to adopt
measures for its . . . county that do not rise to the level of affecting
state legislation.” Id. (citation and punctuation omitted). See also
Ga. Const. of 1983, Art. IX, Sec. II, Par. I (a) (permitting counties “to
adopt clearly reasonable ordinances, resolutions, or regulations
relating to its property, affairs, and local government for which no
provision has been made by general law and which is not
inconsistent with this Constitution or any local law applicable
thereto”) (hereinafter “subparagraph (a)”). “However, the second-
tier delegation constitutes the system’s most extensive grant of local
legislating power; it comprises, no less, the essence of Georgia’s
home rule complex.” Callan, 290 Ga. at 329 (1) (a) (cleaned up); see
also Ga. Const. of 1983, Art. IX, Sec. II, Par. I (b). Under
subparagraph (b), “counties are empowered to change existing state
law,” Callan, 290 Ga. at 329 (1) (a) (cleaned up), under two separate
procedures. Under the first of these procedures, the County may
amend or repeal “the local acts applicable to its governing authority”
by a resolution or ordinance adopted by its governing authority in a
20
two-vote procedure. Ga. Const. of 1983, Art. IX, Sec. II, Par. I (b) (1)
(hereinafter “subparagraph (b) 1”). The second of these procedures
allows the electorate to petition for a special election to amend or
repeal “such local acts or ordinances, resolutions, or regulations
adopted pursuant to subparagraph (a).” See Ga. Const. of 1983, Art.
IX, Sec. II, Par. I (b) (2).
It is the second of these procedures and the scope of the power
given to the electorate, which is at issue in this appeal – that is,
whether the use of the referendum procedure is limited to the
amendment or repeal of local acts applicable to a county’s governing
authority, as the County contends, or whether it also allows a
county’s electorate to seek a referendum on the amendment or
repeal of measures that are adopted by a county’s governing
authority pursuant to subparagraph (a), like the Resolutions
authorizing the County to enter into and extend the Option
Agreement here. All parties agree that the referendum procedure
allows the electorate to amend local acts applicable to the County’s
governing authority under the second-tier delegation of authority,
21
but the County argues that the referendum procedure is limited to
such local acts and that the referendum called here to overturn the
Resolutions adopted by the County was unauthorized. Cf. Kemp v.
City of Claxton, 269 Ga. 173, 175-76 (1) (496 SE2d 712) (1998)
(holding that the petition procedure under Municipal Home Rule Act
“applies only to amendments to municipal charters”).
In analyzing this issue, we begin with the text of the Home
Rule Paragraph. In conferring the first-tier delegation of legislative
power to counties, that provision reads:
The governing authority of each county shall have
legislative power to adopt clearly reasonable ordinances,
resolutions, or regulations relating to its property, affairs,
and local government for which no provision has been
made by general law and which is not inconsistent with
this Constitution or any local law applicable thereto. Any
such local law shall remain in force and effect until
amended or repealed as provided in subparagraph (b).
Ga. Const. of 1983, Art. IX, Sec. II, Par. I (a).17 There is no dispute
that subparagraph (a) authorized the Board to pass the Resolutions
approving the Option Agreement and its extensions, which relate to
Subparagraph (a) also delineates the powers remaining to the General
17
Assembly in light of this delegation.
22
property and the affairs of the County.
Our focus, however, is on the constitutional text addressing the
second-tier delegation of legislative power, which states, in relevant
part:
Except as provided in subparagraph (c),[18] a county may,
as an incident of its home rule power, amend or repeal the
local acts applicable to its governing authority by
following either of the procedures hereinafter set forth:
(1) Such local acts may be amended or repealed by a
resolution or ordinance duly adopted at two regular
consecutive meetings of the county governing authority
not less than seven nor more than 60 days apart. . . .
(2) Amendments to or repeals of such local acts or
ordinances, resolutions, or regulations adopted
pursuant to subparagraph (a) hereof may be initiated
by a petition filed with the judge of the probate court of
the county. . . .
Ga. Const. of 1983, Art. IX, Sec. II, Par. I (b) (emphasis supplied).
In determining the meaning of this language,
Subparagraph (c) of the Home Rule Paragraph contains a list of
18
matters excluded from the legislative powers granted in subparagraphs (a) and
(b), none of which are applicable in this case, and further excludes “any other
matters which the General Assembly by general law has preempted or may
hereafter preempt, but such matters shall be the subject of general law or the
subject of local acts of the General Assembly to the extent that the enactment
of such local acts is otherwise permitted under this Constitution.” Ga. Const.
of 1983, Art. IX, Sec. II, Par. I (c).
23
[w]e generally apply the ordinary signification to words in
construing a constitutional provision. This means we
afford the constitutional text its plain and ordinary
meaning, view the text in the context in which it appears,
and read the text in its most natural and reasonable way,
as an ordinary speaker of the English language would.
McInerney v. McInerney, 313 Ga. 462, 464 (2) (870 SE2d 721) (2022)
(citations and punctuation omitted). See also Olevik v. State, 302 Ga.
228, 235-36 (2) (c) (i) (806 SE2d 505) (2017) (constitutional text is
interpreted “according to the original public meaning of its text,” for
which we consider the text’s “plain and ordinary meaning” (citation
and punctuation omitted)). In other words, we look “for the meaning
the people understood a provision to have at the time they enacted
it.” Olevik, 302 Ga. at 235 (2) (c) (i). “And although the text is always
our starting point . . . (and often our ending point, as well), the
broader context in which that text was enacted may also be a critical
consideration.” Id. at 236 (2) (c) (i). Moreover, constitutional
interpretation differs from statutory interpretation in that “[o]ur
objective focus is even more important when we interpret the
Constitution. Unlike ordinary legislation, the people – not merely
24
elected legislators – are the ‘makers’ of the Georgia Constitution.”
Id. at 238 (2) (c) (i).
In addition, “[i]t is a basic rule of construction that a statute
[or constitutional provision] should be construed to make all its
parts harmonize and to give a sensible and intelligent effect to each
part, as it is not presumed that the [drafters] intended that any part
would be without meaning.” McIver v. State, 314 Ga. 109, 120 (2) (b)
(875 SE2d 810) (2022) (citation and punctuation omitted). See also
McInerney, 313 Ga. at 465 (2) (“[T]his Court must construe the
Georgia Constitution to make its parts harmonize and to give
sensible meaning to each of them.” (citation and punctuation
omitted)); Brown v. Liberty County, 271 Ga. 634, 635 (522 SE2d 466)
(1999) (same). And it is well settled that in interpreting statutory
text, “courts generally should avoid a construction that makes some
language mere surplusage.” Middleton v. State, 309 Ga. 337, 342 (3)
(846 SE2d 73) (2020) (citation and punctuation omitted). This
“canon of statutory construction applies with at least equal force in
the constitutional context.” Garcia-Jarquin v. State, 314 Ga. 555,
25
564 (878 SE2d 200) (2022) (Bethel, J., concurring). See also Gwinnett
County School District v. Cox, 289 Ga. 265, 271 (2) (c) (710 SE2d 773)
(2011) (“Established rules of constitutional construction prohibit us
from any interpretation that would render a word superfluous or
meaningless.”).
Applying these rules of construction to the text of the Home
Rule Paragraph, we recognize that the introductory text of
subparagraph (b) grants a county the authority to amend or repeal
“the local acts applicable to its governing authority” by two different
processes. Subparagraph (b) (1) outlines the procedure by which a
county’s governing authority may amend or repeal “such local acts.”
At the time the Home Rule Paragraph was ratified in 1966, the term
“such” was defined to mean “[o]f this kind having [a] particular
quality or character specified . . . . [S]uch represents the object as
already particularized . . . and is a descriptive or relevant word,
referring to the last antecedent.” Black’s Law Dictionary, p. 1600
(4th ed. 1951). Thus, “such local acts” clearly refers to “the local acts
applicable to its governing authority” as set out in the introductory
26
text. But subparagraph (b) (2) sets out the procedure by which a
county’s electorate may seek a referendum on the amendment or
repeal of “such local acts or ordinances, resolutions, or regulations
adopted pursuant to subparagraph (a).” (Emphasis supplied.)
This language in subparagraph (b) (2) plainly grants repeal
and amendment powers to the electorate for “ordinances,
resolutions, or regulations adopted pursuant to subparagraph (a)” in
addition to “such local acts” as referred to in the introductory text
and subparagraph (b) (1). Both subparagraphs (b) (1) and (2) refer
to “such local acts” and thus are consistent with the introductory
text; subparagraph (b) (1) addresses only the governing authority’s
power to amend or repeal such local acts through a two-vote
procedure. Subparagraph (b) (2), on the other hand, describes in
detail a special election/referendum process to amend or repeal such
local acts, as well as county ordinances, resolutions, and regulations
adopted by the county’s governing authority under the first-tier
27
delegation in subparagraph (a). 19 To read subparagraphs (b) (1) and
(2) as granting strictly coextensive powers, as the County urges us
to do, would require us to ignore the phrase “or ordinances,
resolutions, or regulations adopted pursuant to subparagraph (a)” in
the text of subparagraph (b) (2), a reading that would violate well-
established tenets of constitutional interpretation that generally
require each part of the text be given a sensible reading and not be
rendered superfluous. 20 See McIver, 314 Ga. at 119-20 (2) (b);
Middleton, 309 Ga. at 342 (3); McInerney, 313 Ga. at 464 (2).
We are unpersuaded by the County’s warnings about the
potential consequences of allowing the electorate to amend or repeal
19 Notably, subparagraph (b) (2) does not use the term “such” when
referring to “ordinances, resolutions, or regulations,” which is in contrast to its
use of the term “such local acts,” thereby supporting that the “ordinances,
resolutions, or regulations” referred to are of a different kind than “such local
acts.”
20 The County also argues that “ordinances, resolutions, or regulations”
in subparagraph (b) (2) may refer to law passed under the two-vote process in
subparagraph (b) (1), but that argument likewise ignores critical language in
subparagraph (b) (2), which references “ordinances, resolutions, or regulations
adopted pursuant to subparagraph (a),” and not that law adopted pursuant to
subparagraph (b) (1). Ga. Const. of 1983, Art. IX, Sec. II, Par. I (b) (2) (emphasis
supplied).
28
ordinances, resolutions, or regulations. The County urges that the
Secretary of State may be compelled to publish all such amendments
under subparagraph (g)21 of the Home Rule Paragraph; but that
subparagraph on its face applies only to local acts, which, as
discussed above, are distinct from ordinances, resolutions, or
regulations. The County also warns that allowing the electorate to
amend or repeal acts of a county’s governing authority could lead to
a perpetual cycle of the same act being passed by the county and
repealed by the electorate. But there is little evidence that such a
parade of horribles would occur, given that a county’s governing
authority, which is comprised of elected officials, would be unlikely
to routinely disregard the will of the electorate and given that
That subparagraph provides:
21
No amendment or revision of any local act made pursuant to
subparagraph (b) of this section shall become effective until a copy
of such amendment or revision, a copy of the required notice of
publication, and an affidavit of a duly authorized representative of
the newspaper in which such notice was published to the effect
that said notice has been published as provided in said
subparagraph has been filed with the Secretary of State. The
Secretary of State shall provide for the publication and
distribution of all such amendments and revisions at least
annually.
Ga. Const. of 1983, Art. IX, Sec. II, Par. I (g) (emphasis supplied).
29
subparagraph (b) (2) provides that “[a] referendum on any such
amendment or repeal shall not be held more often than once each
year.” In any event, even if such a scenario were to occur, we are
bound to apply the plain meaning of the constitutional provision.
We conclude, therefore, giving effect to all parts of the text, that
the Home Rule Paragraph authorized the County’s electorate to
petition for the repeal of the Resolutions and that Judge Sweatt was
authorized to consider the Electors’ Petition to determine whether it
met the requirements under that provision for obtaining a
referendum on the issue.
We recognize that our holding here is in tension with Kemp,
269 Ga. at 175-76 (1), in which we construed the statutory home rule
provisions applicable to municipalities under the Municipal Home
Rule Act. That act contains a provision somewhat similar to
subparagraph (b) of the Home Rule Paragraph and states that “a
municipal corporation may, as an incident of its home rule power,
amend its charter by following either [of two] procedures.” OCGA §
36-35-3 (b). One of the prescribed procedures provides that
30
[a]mendments to charters or amendments to or repeals of
ordinances, resolutions, or regulations adopted pursuant
to subsection (a) of this Code section may be initiated by
a petition, filed with the governing authority of the
municipal corporation . . . .
OCGA § 36-35-3 (b) (2) (A).
In Kemp, we determined that in granting a writ of mandamus
to compel consideration of a petition to repeal a city ordinance under
the Municipal Home Rule Act, the trial court had erroneously relied
upon “the reference to ‘amendments to or repeals of ordinances,
resolutions, or regulations,’ found in OCGA § 36-35-3 (b) (2) (A).”
Kemp, 269 Ga. at 176 (1). Reasoning that “the very concept of home
rule suggests that the provisions of (b) (2) apply only to charter
amendments,” the Court determined that because “[a]ll of OCGA §
36-35-3 (b) is prefaced by a statement that what follows are the
methods by which a municipal corporation may ‘amend its charter,’”
the introductory language showed “that the petition and referendum
provision is intended to be available only when the proposed
amendment is intended to affect a city charter.” Id. Accordingly, the
Court reversed the grant of mandamus, holding “[a]s we must
31
strictly construe the grant of legislative power to the governing
authority, [the Court] must reject plaintiffs’ argument that the
electorate can directly exercise such general legislative power,” and
that “[t]he petition procedure of OCGA § 36-35-3 (b) (2) applies only
to amendments to municipal charters.” Id.
Because, here, we are construing a completely separate legal
provision, the holding in Kemp does not control our decision in this
case,22 and we need not consider at this time whether Kemp should
be overruled in light of today’s ruling. Nevertheless, we note that in
reaching the holding in Kemp, this Court dismissed some of the
canons of construction we apply in this case, stating, instead, that
“the spirit and intent of the legislation prevails over a literal reading
of the language,” and “[t]he legislative intent will be effectuated
22 Moreover, because Kemp was decided in 1998, more than 30 years after
the ratification of the Home Rule Paragraph in 1966 and more than 15 years
after the 1982 ratification of the current Georgia Constitution, in which that
provision was carried forward, Kemp’s interpretation of the similar language
of the Municipal Home Rule Act forms no part of the legal context in which the
Home Rule Paragraph was adopted. Cf. Olevik, 302 Ga. at 228 (2017) (part of
the broader context in which we consider constitutional text is “the body of pre-
enactment decisions of this Court interpreting the meaning of . . . text that the
framers of our Constitution subsequently chose to use”).
32
even if some language must be eliminated.” Kemp, 269 Ga. at 175-
76 (1).
Accordingly, we affirm the superior court’s denial of the
County’s petition for declaratory relief.
3. Writ of Prohibition: The County also sought a writ of
prohibition against Judge Sweatt on the grounds that he lacked
authority and jurisdiction to call for the special election. See OCGA
§§ 9-6-40,23 9-6-41,24 and 9-6-42.25
A writ of prohibition seeks “to prevent a tribunal possessing
judicial powers from exercising jurisdiction over matters not within
23 OCGA § 9-6-40 provides:
The writ of prohibition is the counterpart of mandamus, to restrain
subordinate courts and inferior judicial tribunals from exceeding
their jurisdiction where no other legal remedy or relief is given.
The granting or refusal thereof is governed by the same principles
of right, necessity, and justice as apply to mandamus; provided,
however, that no writ of prohibition to compel the removal of a
judge shall issue where no motion to recuse has been filed, if such
motion is available, or where a motion to recuse has been denied
after assignment to a separate judge for hearing.
24 Under OCGA § 9-6-41, a “writ of prohibition may be granted at any
time, on proper showing made.”
25 “The writ of prohibition will not lie to the duly inaugurated Governor,
but it lies to all other executive or military officers when acting as a judicial or
quasi-judicial tribunal.” OCGA § 9-6-42.
33
its cognizance, or from exceeding its jurisdiction in matters of which
it has cognizance.” Stokes v. Edwards, 272 Ga. 98, 98-99 (526 SE2d
853) (2000) (citation and punctuation omitted). Therefore, this
remedy “is available only where the court sought to be restrained
lacks subject-matter jurisdiction or acts in excess of its jurisdiction
[.]” Id. at 99. See also Ray v. Jolles, 280 Ga. 452, 453-54 (629 SE2d
250) (2006) (affirming denial of writ of prohibition where probate
court had subject matter jurisdiction and acted within its authority).
The County argues that Judge Sweatt exceeded his jurisdiction
in addressing the Electors’ Petition because the Resolutions were
not subject to amendment or repeal under the special election
process set out in the Home Rule Paragraph. That argument is
unavailing, however, because, as discussed in Division 2 (b), we
conclude that the Home Rule Paragraph authorized Camden County
electors to pursue a referendum seeking repeal of the Resolutions in
this case. Accordingly, Judge Sweatt acted within the probate court’s
subject-matter jurisdiction and the authority granted under the
Home Rule Paragraph in calling for the Referendum, and the
34
superior court was correct in denying the County’s petition for a writ
of prohibition.
Judgment affirmed. All the Justices concur.
35
Appendix I
Home rule for counties
(a) The governing authority of each county shall
have legislative power to adopt clearly reasonable
ordinances, resolutions, or regulations relating to its
property, affairs, and local government for which no
provision has been made by general law and which is not
inconsistent with this Constitution or any local law
applicable thereto. Any such local law shall remain in
force and effect until amended or repealed as provided in
subparagraph (b). This, however, shall not restrict the
authority of the General Assembly by general law to
further define this power or to broaden, limit, or
otherwise regulate the exercise thereof. The General
Assembly shall not pass any local law to repeal, modify,
or supersede any action taken by a county governing
authority under this section except as authorized under
subparagraph (c) hereof.
(b) Except as provided in subparagraph (c), a county
may, as an incident of its home rule power, amend or
repeal the local acts applicable to its governing authority
by following either of the procedures hereinafter set forth:
(1) Such local acts may be amended or repealed by a
resolution or ordinance duly adopted at two regular
consecutive meetings of the county governing authority
not less than seven nor more than 60 days apart. A notice
containing a synopsis of the proposed amendment or
repeal shall be published in the official county organ once
a week for three weeks within a period of 60 days
immediately preceding its final adoption. Such notice
shall state that a copy of the proposed amendment or
repeal is on file in the office of the clerk of the superior
court of the county for the purpose of examination and
36
inspection by the public. The clerk of the superior court
shall furnish anyone, upon written request, a copy of the
proposed amendment or repeal. No amendment or repeal
hereunder shall be valid to change or repeal an
amendment adopted pursuant to a referendum as
provided in (2) of this subparagraph or to change or repeal
a local act of the General Assembly ratified in a
referendum by the electors of such county unless at least
12 months have elapsed after such referendum. No
amendment hereunder shall be valid if inconsistent with
any provision of this Constitution or if provision has been
made therefor by general law.
(2) Amendments to or repeals of such local acts or
ordinances, resolutions, or regulations adopted pursuant
to subparagraph (a) hereof may be initiated by a petition
filed with the judge of the probate court of the county
containing, in cases of counties with a population of 5,000
or less, the signatures of at least 25 percent of the electors
registered to vote in the last general election; in cases of
counties with a population of more than 5,000 but not
more than 50,000, at least 20 percent of the electors
registered to vote in the last general election; and, in cases
of a county with a population of more than 50,000, at least
10 percent of the electors registered to vote in the last
general election, which petition shall specifically set forth
the exact language of the proposed amendment or repeal.
The judge of the probate court shall determine the
validity of such petition within 60 days of its being filed
with the judge of the probate court. In the event the judge
of the probate court determines that such petition is valid,
it shall be his duty to issue the call for an election for the
purpose of submitting such amendment or repeal to the
registered electors of the county for their approval or
rejection. Such call shall be issued not less than ten nor
more than 60 days after the date of the filing of the
37
petition. He shall set the date of such election for a day
not less than 60 nor more than 90 days after the date of
such filing. The judge of the probate court shall cause a
notice of the date of said election to be published in the
official organ of the county once a week for three weeks
immediately preceding such date. Said notice shall also
contain a synopsis of the proposed amendment or repeal
and shall state that a copy thereof is on file in the office of
the judge of the probate court of the county for the
purpose of examination and inspection by the public. The
judge of the probate court shall furnish anyone, upon
written request, a copy of the proposed amendment or
repeal. If more than one-half of the votes cast on such
question are for approval of the amendment or repeal, it
shall become of full force and effect; otherwise, it shall be
void and of no force and effect. The expense of such
election shall be borne by the county, and it shall be the
duty of the judge of the probate court to hold and conduct
such election. Such election shall be held under the same
laws and rules and regulations as govern special
elections, except as otherwise provided herein. It shall be
the duty of the judge of the probate court to canvass the
returns and declare and certify the result of the election.
It shall be his further duty to certify the result thereof to
the Secretary of State in accordance with the provisions
of subparagraph (g) of this Paragraph. A referendum on
any such amendment or repeal shall not be held more
often than once each year. No amendment hereunder
shall be valid if inconsistent with any provision of this
Constitution or if provision has been made therefor by
general law.
In the event that the judge of the probate court
determines that such petition was not valid, he shall
cause to be published in explicit detail the reasons why
such petition is not valid; provided, however, that, in any
38
proceeding in which the validity of the petition is at issue,
the tribunal considering such issue shall not be limited by
the reasons assigned. Such publication shall be in the
official organ of the county in the week immediately
following the date on which such petition is declared to be
not valid.
(c) The power granted to counties in subparagraphs
(a) and (b) above shall not be construed to extend to the
following matters or any other matters which the General
Assembly by general law has preempted or may hereafter
preempt, but such matters shall be the subject of general
law or the subject of local acts of the General Assembly to
the extent that the enactment of such local acts is
otherwise permitted under this Constitution:
(1) Action affecting any elective county office, the
salaries thereof, or the personnel thereof, except the
personnel subject to the jurisdiction of the county
governing authority.
(2) Action affecting the composition, form, procedure
for election or appointment, compensation, and expenses
and allowances in the nature of compensation of the
county governing authority.
(3) Action defining any criminal offense or providing
for criminal punishment.
(4) Action adopting any form of taxation beyond that
authorized by law or by this Constitution.
(5) Action extending the power of regulation over
any business activity regulated by the Georgia Public
Service Commission beyond that authorized by local or
general law or by this Constitution.
(6) Action affecting the exercise of the power of
eminent domain.
(7) Action affecting any court or the personnel
thereof.
(8) Action affecting any public school system.
39
(d) The power granted in subparagraphs (a) and (b)
of this Paragraph shall not include the power to take 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.
(e) Nothing in subparagraphs (a), (b), (c), or (d) shall
affect the provisions of subparagraph (f) of this
Paragraph.
(f) The governing authority of each county is
authorized to fix the salary, compensation, and expenses
of those employed by such governing authority and to
establish and maintain retirement or pension systems,
insurance, workers' compensation, and hospitalization
benefits for said employees.
(g) No amendment or revision of any local act made
pursuant to subparagraph (b) of this section shall become
effective until a copy of such amendment or revision, a
copy of the required notice of publication, and an affidavit
of a duly authorized representative of the newspaper in
which such notice was published to the effect that said
notice has been published as provided in said
subparagraph has been filed with the Secretary of State.
The Secretary of State shall provide for the publication
and distribution of all such amendments and revisions at
least annually.
Ga. Const. of 1983, Art. IX, Sec. II, Par. I
40
BETHEL, Justice, concurring dubitante.
I am satisfied that the Court has carefully, faithfully, and
accurately applied the proper tools and framework to determine the
meaning of the petition and referendum provisions of subparagraph
(b) (2) of the Home Rule Paragraph in our Constitution.
Nevertheless, I am thoroughly uncertain that the meaning we thus
discern is what the people intended when they included the Home
Rule Paragraph in the Constitution. My uneasiness is compounded
by the fact that the structure of the paragraph itself is decidedly
unhelpful. Moreover, I have concerns about the burden this
interpretation will place on Georgia’s counties and, in due time,
municipalities. But, in our system of limited government, our duty
is to hold parties to the language they use and not to save them from
it. Thus, my concurrence is given albeit with significant doubt and
discomfort.
As explained in the opinion of the Court, the Home Rule
Paragraph was crafted by the General Assembly and incorporated
into the State Constitution by a vote of the people to give certain
41
legislative powers to counties so that the counties would have
greater power to manage their own affairs. The General Assembly
made a nearly identical provision for Georgia’s municipalities
through statutory measures. See OCGA § 36-35-3. Both
constitutional home rule for counties and statutory home rule for
municipalities include a virtually identical petition and referendum
mechanism that is the focus of the case before us. Our first effort at
interpreting this language in the context of the municipal home rule
statute led us to a conclusion opposite of the one we reach today. See
generally Kemp v. City of Claxton, 269 Ga. 173 (496 SE2d 712)
(1998). The absence of any discernable effort to change the rule after
its articulation in Kemp leads me to believe that the rule articulated
there may be the rule desired by, or at least acceptable to, the people
and their legislative representatives.
Moreover, as the majority notes, these home rule measures
were adopted against the backdrop of a state legislature with a
reputation for being stridently opposed to implementing home rule
provisions. See R. Perry Sentell, Jr., The Georgia Home Rule System,
42
50 Mercer L. Rev. 99, 105-106 (II) (A) (1998). The interpretation we
provide today, however, seems to open a very broad path to extensive
efforts outside the control of the General Assembly to tinker with
the day to day operational decisions of local governments that seems
at odds with what we might have expected to be a limited
experiment in home rule. Instead, Georgia appears to have chosen
to allow for petition and referendum challenges to virtually every
decision of local governments. This would constitute a giant leap
toward what nears a direct democracy model for local government.
Of course, it is not inconceivable to imagine that the legislature’s
hostility to home rule was really rooted in a distrust of local elected
officials rather than an aversion to ceding any of the legislature’s
own power to the counties. If that was the case, then allowing home
rule with a strong check from the local citizenry via the petition and
referendum process may not seem so odd. But the lack of
contemporaneous evidence of that understanding makes that
explanation seem unlikely to me.
To say that the constitutional Home Rule Paragraph has
43
drafting problems is kind. The structure of subparagraph (b) also
adds to my doubt about our resolution of the question before us. It
is quite confounding that the initial text of subparagraph (b)
indicates that the subparagraph will provide for the methods of
amending or repealing “the local acts applicable to its governing
authority” only to have the provisions of (b) (2) provide for the ability
to amend or repeal a much broader and materially different set of
actions by the local government. Additional concern is generated by
the provisions of subparagraph (g), which provides that an
“amendment or revision of any local act made pursuant to
subparagraph (b)” will not be effective until certain filings are made
with the Secretary of State and requires that the Secretary of State
subsequently provide for at least annual publication and
distribution of the amendment or revision. (Emphasis supplied.) Ga.
Const. of 1983, Art. IX, Sec. II, Par. I (b). This subparagraph can
only be reasonably understood to apply to changes to local acts
applicable to the governing authority of the county. It makes no
allowance for referenda related to operational decisions. But
44
subparagraph (b) (2), which encompasses more than “local acts,”
requires the probate judge to certify the results of the election on the
referendum “to the Secretary of State in accordance with the
provisions of subparagraph (g)[.]” Ga. Const. of 1983, Art. IX, Sec.
II, Par. I (b). The majority acknowledges that subparagraph (g) “on
its face applies only to local acts, which as discussed above, are
distinct from ordinances, resolutions, or regulations.” But what,
exactly, the Secretary of State is supposed to do with that
certification when it does not relate to local acts applicable to the
governing authority remains an open question. I will not delve
further into the tangle. I only note that the clumsiness of the
structure casts doubt on the true meaning of the text. 26
26As a former member of both a city council and the General Assembly,
I appreciate the challenges of the drafting process and the many ways
confusing language and structure can make their way into language ultimately
adopted by a legislative body. The structure we find here, however, should
serve as an encouragement to all those involved in the drafting process to
continually look at the document as a whole to ensure clarity. Regrettably,
what we are left with in subparagraph (b) is the equivalent of a provision that
indicates it will provide travel directions to Atlanta, only to include directions
to Darien, Dalton, Hahira, and Hiawassee, as well. The reader is left to wonder
whether the error was in the description of the contents or in the contents
themselves.
45
The next chapter in this story could be challenging. Our
reading of the language here, of course, signals a looming stare
decisis analysis for our holding in Kemp. Whatever the result of that
analysis may be, our holding here will, I expect, usher in a frightful
season for local governments in Georgia. While getting 10-25% of
registered voters (depending on population) to sign a petition to force
a referendum should not be described as “easy,” it will undoubtedly
prove more realistic for those who are concerned about matters
related to local alcohol ordinances, zoning ordinances and decisions,
taxation rates, and budgeting decisions than it might be to collect
sufficient signatures to challenge the structural “governing
authority” questions otherwise found in subparagraph (b). I worry
that a considerable minority group or groups within a community
will be empowered to regularly subject their local community to the
expense of a series of referenda as a means of either protest or in an
attempt to thwart the will of a fatigued majority in a low turnout
46
election. 27 I hope I am wrong.
Nevertheless, despite my doubts, I am compelled to concur. But
it is not because the Court reaches the outcome I prefer. And it is
not because I believe my concerns will prove to be unfounded.
Rather, I concur because we exercise only judicial power and that
power is limited. Here, that power extends to a determination of the
meaning and impact of words the people ratified as the framework
by which they consent to be governed. The interpretation the Court
reaches is not beyond critique. Indeed, the confusing nature of the
operative language might afford many readings. But, the Court has
reached the most plausible reading that gives the greatest effect to
the language in the document. All competing readings I have
identified have greater challenges and deficiencies than the one we
reach today. So, I concur, dubitante.
I am authorized to state that Chief Justice Boggs joins in this
concurrence.
27 How hard will it be to collect signatures on a petition to repeal the
adoption of a resolution increasing or merely setting the millage rate?
47