c THE SUPEIUOR COURT OF FULTON COU
ST ATE OF GEORGIA
The CITY OF ATLANTA, a municipal corporation and political subdivision of the State of Georgia, acting by and through its Mayor and City Council,
Petitioner,
v.
FULTON COUNTY, a political subdivision of the State of Georgia acting by and through its duly elected Board of Commissioners,
Respondent.
DEPUTY CLERK SUPERIOR COURT FULTON COUNTY. GA
~LED IN OFF'n
I AUG 3 I 2015 .1
CIVIL ACTION FILE NO. 2015CV258507
Judge Tusan
FINAL ORDER ON PENDING MOTIONS
On August 24,2015, the COUlt held oral argument on all outstanding motions in the
above-referenced action, which include Respondent's motion to dismiss and the Patties' cross
motions for summary judgment. After consideration of the motions, briefs, all other materials on
file, and argument of counsel, the Court enters the following Order denying Respondent's
motion to dismiss and Respondent's motion for summary judgment and granting Petitioner's
motion for summary judgment. Because of the significant overlap in the issues raised by the
pending motions, the COUlt addresses them together below.
OVERVIEW
The Georgia General Assembly has delegated to municipalities the authority to annex
unincorporated territory contiguous to their boundaries pursuant to the conditions, restrictions,
and protections for property owners in O.C.G.A. § 36-36-1 et seq. Georgia's annexation statute
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allows owners of property abutting a municipality to petition that municipality for annexation of
their property. See generally O.C.G.A. § 36-36-21.
A 1979 local constitutional amendment (the" 1979 LCA") establishes the boundaries of
the Fulton Industrial District ("FID") and purports to prohibit any annexation or incorporation of
property within the FID. The 1979 LCA thus interferes with the City of Atlanta's ("Atlanta")
desire to have the property it owns inside the FID annexed into Atlanta's municipal limits as it
would otherwise be able to do pursuant to O.C.G.A. § 36-36-21. Pursuant to O.C.G.A. § 36-36-
6, Atlanta has notified Fulton County of its desire to annex the property, but has not yet finalized
the annexation through adoption of an ordinance by the City Council and approval of the
ordinance by the Mayor. In light of Fulton County's stated opposition to the annexation based
on the 1979 LCA, Atlanta has asked this Court to declare the 1979 LCA void and that
accordingly, any annexation within the FID area will be governed by and pursuant to Georgia's
annexation statute, as is true in the rest of Fulton County.
The Court finds that this dispute is appropriately resolved through this declaratory
judgment action. See Ga. Const. Art. 1, § 2, ~ 5 ("Legislative acts in violation of this
Constitution or the Constitution of the United States are void, and the judiciary shall so declare
them"); Higdon v. City a/Senoia, 273 Ga. 83,85 (2000). The Court also notes that the Georgia
Attorney General has been served with this action as required by O.C.G.A. § 9-4-7(c) and has
not intervened or otherwise entered an appearance.
MATERIAL FACTS
Based on a review of the record and argument of counsel, the Court finds that there are
no material facts in dispute in this action. The material facts are set forth below.
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I. Annexation of Atlanta's Property
Atlanta recently acquired property located within the FID (the "Parcel"). 1 The Parcel is
contiguous to Atlanta's current municipal boundaries.2 On March 17,2015, Atlanta Mayor
Kasim Reed notified the Atlanta City Council President that Atlanta wished to annex the Parcel.3
Later that day, the Clerk of the Atlanta City Council notified Fulton County Chairman John
Eaves of Atlanta's receipt and acceptance of the annexation request." On April 2, 2015, (then)
Fulton County Attorney R. David Ware sent Mayor Reed a letter confirming Fulton's position
that "Atlanta is legally prohibited from annexing" the Parcel. 5 The sole basis for Fulton's
position stated in Mr. Ware's letter was that such annexation is barred by the 1979 LCA.6
II. Legislative History of the Fulton Industrial District.
A. The 1977 Attempt to Create the Fulton Industrial District.
In 1977, the Georgia General Assembly passed legislation authorizing a referendum in
Fulton County to create the FID. See HR 10-58, Ga. L. 1977, p. 1569.7 The 1977 General
Assembly also passed another Act authorizing a separate referendum to repeal a 1937
constitutional amendment authorizing Fulton County to levy a tax for its schools within Atlanta.
See HR 8-58, Ga. L. 1977, p. 1567. Each of these proposed amendments was made contingent
on the voters' approval of the other, separate amendment. Jd. at 1567-68.
1 See Petition for Declaratory Judgment ("Petition") ~~ 1, 7; Answer and Defenses of Respondent Fulton County ("Answer") ~~ 1, 7. 2 See Petition ~ 7; Affidavit of Stewart T. Henderson, dated June 22, 2015 ~ 3. 3 See Petition ~ 44 and Ex. F; Answer ~ 44. 4 Petition at Ex. F. 5 See April 2, 2015 Letter from R. David Ware to Hon. Kasim Reed. 6 Jd. 7 This Court may take judicial notice of Acts of the General Assembly. O.C.G.A. § 24-2-220; Thompson v. Cheatham, 244 Ga. 117, 118 (1979).
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The voters approved the local constitutional amendment creating the FID at the 1978
general election. See Ga. L. 1979, p. 5263.8 However, the school tax levy repeal was rejected.
See Ga. L. 1979, p. 5245.9 Because each amendment was contingent on the passage of the other,
the 1977 amendments both failed as a matter of law following the November 1978 general
election.
B. The 1979 Fulton Industrial District Local Constitutional Amendment.
1. Passage in 1979.
The year after the two separate amendments failed at the ballot box, the General
Assembly revisited both topics - creation of the FID and repeal of Fulton's school tax within
Atlanta. But this time, the General Assembly combined the two previously separate amendments
into a single local constitutional amendment and a single referendum.
In 1979, the Georgia General Assembly passed the 1979 LCA legislation. See Ga. L.
1979, p. 1797. One portion of the 1979 LCA creates the FID and its boundaries, and prohibits
the annexation or incorporation of any portion of the FID. Ga. L. 1979, pp. 1798-99. The 1979
LCA provides that the "area [within the FID] shall not hereafter be included within the limits of
any municipal corporation as now exists or hereafter incorporated except by constitutional
amendment." ld. at 1799. This portion corresponds to HR 10-58 from 1977.
Another portion of the 1979 LCA corresponds to HR 8-58 from 1977. This second
provision prohibits Fulton County from levying any school taxes "within the boundaries of an
independent school system," i.e., in Atlanta, which had (and has) the only independent school
system within Fulton County. In contrast, as to the property within the FID, the 1979 LCA
8 This Court may take judicial notice of election results, including referendum outcomes. Lowe v. Weltner, 118 Ga. App. 635,638 (1968); Raines v. State, 96 Ga. App. 727, 729 (1957). 9 ld.
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4
expressly maintained the status quo: "The properties within [the FID] shall be subject to all taxes
for school purposes." Ga. L. 1979, p. 1799.
2. Attempts to Continue the 1979 LCA After 1983.
In 1983, Georgia replaced the 1976 Constitution with the 1983 Constitution, which
expressly forbade further local constitutional amendments. 1983 Constitution, Art. X, § I, ~ 1.
Article XI, § 1, ~ 4 of the 1983 Constitution provided that certain local amendments to the 1976
Constitution (including the 1979 LCA) would remain effective until July 1, 1987. Jd., Art. XI, §
1, ~ 4. See also Ga. Const. Appendix One.
During that four-year period, however, pre-existing local constitutional amendments
could be continued through readoption by local Act of the General Assembly. 10 Ifnot readopted
by local Act, however, those local constitutional amendments would be "repealed and ...
deleted" in 1987 by operation of Article XI of the 1983 Constitution. 1983 Constitution, Art. XI,
§ I, ~ 4. Article XI expressly prohibited any modifications or changes to any local constitutional
amendments that were continued. Jd. ("said amendments shall be repealed and shall be deleted
as a part of this Constitution unless any such amendment shall be specifically continued in force
and effect without amendment").
a. HB 85 in 1983.
In 1983, the Georgia General Assembly passed HB 85 to continue the LCA. Ga. L. 1983,
p.4077. As a local Act, HB 85 was subject to a constitutional public notice requirement. Ga.
Const. Art. III, § V, ~ IX. HB 85's public notice read:
Notice is hereby given that there will be introduced at the regular 1983 Session of the General Assembly of Georgia, a bill to continue in force and effect an amendment to the Constitution of Georgia that created in Fulton County a special
10 Or in some cases not relevant here, by local ordinance or resolution.
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5
district to be known as the Fulton County Industrial District, and for other purposes.
Ga. L. 1983, p. 4078.
Thus, the public notice for HB 85 did not make any reference to the portion of the 1979
LCA prohibiting Fulton County from levying school taxes in Atlanta - the proposal originally
passed by the 1977 General Assembly as HR 8-58.
b. SB 509 in 1986.
A second local bill to continue the 1979 LCA, SB 509, was introduced and passed three
years later, in 1986. Ga. L. 1986, p. 4438. The title and the public notice used for SB 509 were
different than those for HB 85, with the notable inclusion of express reference to school taxation.
But this reference to school taxation did not match the content of the 1979 LCA. The title of SB
509 read as follows:
To continue in force and effect as a part of the Constitution of the State of Georgia that constitutional amendment (Ga. L. 1979, p. 1797), which relates to the establishing of the Fulton County Industrial District and prohibits the board of commissioners from levying any tax for education purposes within the district; to provide the authority for this Act; to repeal conflicting laws; and for other purposes.
Jd. (emphasis added).
The public notice for SB 509 read:
Notice is given that there will be introduced at the regular 1986 session of the General Assembly of Georgia a bill to continue in force and effect as a part of the Constitution of Georgia that constitutional amendment (Ga. L. 1979, p. 1797) which relates to the establishing of the Fulton County Industrial District and prohibit the Board of Commissioners from levying any tax for education purposes within the district and to levy taxes in support of such services; to provide the authority for this Act; to repeal conflicting laws; and for other purposes.
Jd., p. 4439 (emphasis added).
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As the underlined language above makes clear, the title and public notice of SB 509 are
inconsistent with the 1979 LCA's text. The 1979 LCA expressly directed, not prohibited, a tax
for education purposes within the district, i.e., the FID - "The properties within [the FID] shall
be subject to all taxes for school purposes." Ga. L. 1979, p. 1799.
CONCLUSIONS OF LAW
I. The 1979 LCA Is Void Ab Initio.
Georgia's Single Subject Rule prohibits combining unrelated measures in the same
legislative act, constitutional amendment, or referendum. Cady v. Jardine, 185 Ga. 9, 10(1937)
(citing to Alt. III, § 7, ~ 8 of the 1877 Constitution, and observing that it "first appeared in our
Constitution of 1798"). The current Georgia Constitution contains two expressions of the Single
Subject Rule - one for legislation, and one for amendments. See Ga. Const. 1983, Art. III, Sec.
V, Par. III and Art. X, Sec. I, Par. II, respectively. The Supreme COUlt has emphasized that the
Constitution's two iterations of the Single Subject Rule ask the same question:
The test of whether an Act or a constitutional amendment violates the multiple subject matter rule is whether all of the parts of the Act or of the constitutional amendment are germane to the accomplishment of a single objective. If so, it does not violate the rule; otherwise, it does.
Carter v. Burson, 230 Ga. 511, 519 (1973) (citation omitted).
The Georgia Supreme Court condemned combining unrelated legislative propositions in a
single referendum in Rea v. City of La Fayette, 130 Ga. 771,772-73 (1908). More recently, the
Supreme Court held that the Single Subject Rule permits consolidation of issues in a referendum
only if "the initial question was whether something should be done and the additional questions
were merely incidental to the accomplishment of it." Wall v. Board of Elections of Chatham
County, 242 Ga. 566, 569-70 (1978).
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This COUIi concludes that the 1979 LCA violated Georgia's Single Subject Rule. The
1979 LCA addressed two separate and unrelated subjects, each the subject of its own previously
attempted constitutional amendment - the creation of the FID and Fulton County's levy of a
school tax within Atlanta. Although the 1979 LCA's plain text requires that conclusion, this
holding finds further support from the 1983 Constitution itself, the practical effects of the two
provisions, and the 1979 LCA's legislative history. See, e.g., Ga. Const. Appendix One; HR 8-
58 and HR 10-58, discussed supra; Ga. L. 1979, pp. 5245,5263.
There is no necessary or logical relationship between (a) the establishment and protection
of the FID and (b) Fulton's levy of school taxes within Atlanta. Here, each amendment stands
on its own, and neither has any effect on the operation or success of the other. Neither subject
can fairly be said to be "a necessary incident" or otherwise important to the accomplishment of
the other. Wall, 242 Ga. at 570.
The two proposals the General Assembly combined into the 1979 amendment, i.e., the
school tax repeal and the establishment of the FID, do not advance a single objective. Neither is
germane to the other or has any legal or practical effect on the other. If the language repealing
the school tax were removed from the text of the 1979 LCA, there would be no effect on the
creation of the FID, Equally, were all of the language relating to the FID removed from the 1979
LCA, there would be no effect on the repeal of the school tax throughout Atlanta. The
combination of the two proposals in a single amendment is a plain violation of the test imposed
by Carter. Carter, 230 Ga. at 519.
The failure of those proposals when put to the voters separately in the general election of
1978, followed by the General Assembly's decision to combine the two proposals into a single
ballot is precisely the type of "log-rolling" the Single Subject Rule was designed to prevent. See
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8
Rea, 130 Ga. at 772-73. Voters - whether supportive of one proposal, both, or neither - were
stripped of their right to evaluate the unrelated proposals independently and vote accordingly,
which Rea and its progeny held unconstitutional.
Therefore, this Court holds that the 1979 LCA was unconstitutional and void ab initio for
having violated the Single Subject Rule.
II. The Legislation to Continue the 1979 LCA was Void, and the 1979 LCA was Thus Repealed by Article XI of the 1983 Constitution.
Even if the 1979 LCA had been validly enacted, the 1983 Constitution required that all
local constitutional amendments had to be continued by local act of the General Assembly I I or
else the amendments would be repealed as of July 1, 1987. See Art. XI, § I, ~ IV. While the
Georgia General Assembly passed two separate pieces of legislation to continue the 1979 LCA,
the Court finds and holds that neither satisfied Georgia's constitutional requirements.
Accordingly, the 1979 LCA was effectively "repealed and ... deleted" as of July 1, 1987. Id.
A. The First Attempt - the 1983 Attempted Readoption
In 1983, the Georgia General Assembly passed HB 85 to continue the 1979 LCA. See
1983 Ga. Laws, p. 4077. However, HB 85's public notice was invalid. 12 The public notice for
HB 85 read:
Notice is hereby given that there will be introduced at the regular 1983 Session of the General Assembly of Georgia, a bill to continue in force and effect an amendment to the Constitution of Georgia that created in Fulton County a special district to be known as the Fulton County Industrial District, and for other purposes.
Ga. L. 1983, p. 4078.
II Or in some cases not relevant here, by local ordinance or resolution. 12 As HB 85 was a local act, the Constitution required public notice prior to its passage. See Art. III, § V ~ IX.
1349620.1 9
That notice was invalid because it only addressed one of the two provisions of the LCA-
the creation of the FID - without referencing the separate prohibition against Fulton levying
school taxes within an independent school system, i. e., in Atlanta. As the Supreme Court
explained in 1972:
Where the notice of intention to apply for local legislation specifically details the matters to be included in the Act, but omits a material provision of the proposed Act, the notice does not meet the requirements of the Constitution.
DeKalb County v. Atlanta Gas Light Co., 228 Ga. 512, 514 (1972) (invalidating local act for
failing to reference provision striking earlier exception to taxation power). See also Smith v.
Abercrombie, 235 Ga. 741, 743 (1975) ("once specific matters are mentioned in the notice,
matters foreign to those subjects may not constitutionally appear in the bill"); Brown v. Clower,
225 Ga. 165, 166 (1969) (superseded by statute on unrelated grounds, see Oasis Goodtime
Emporium I, Inc. v. City of Doraville, 773 S.E.2d 728, 734-35 (Ga. June 15,2015)).
Further, the Supreme Court has held that if a bill's title references a specific geographic
area, but the substance of the bill deals with another area not mentioned in the title, then the title
is per se invalid. See Adams v. City of Cornelia, 206 Ga. 687, 690-91 (1950); Schneider v. City
of Folkston, 207 Ga. 434,435 (1950). As the underlying purposes of the notice and title
requirements are essentially the same, and thus must be similarly applied, HB 85's public
notice's failure to make any mention of a material provision affecting the entire City of Atlanta
renders that public notice invalid. See, e.g., Brown, 225 Ga. at 166. The Court finds that the
school tax provision was a material provision of the 1979 LCA separate and independent from
the establishment of the FID. In addition to the reasons given above, the ballot language
provided for in the 1979 LeA presented two separate amendments to the electors in a single
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ballot question: whether FID should be created, and whether the Fulton County school tax within
Atlanta should be ended. See Ga. L. 1979, p. 1800.
B. The Second Attempt - the 1986 Attempted Readoption.
The 1986 General Assembly introduced and passed a second local bill - SB 509 - to try
to continue the 1979 LCA. See Ga. L. 1986, p. 4438.
The title and the public notice used for SB 509 were different than those for HB 85 in
1983. SB 509, unlike HB 85, expressly acknowledged that the 1979 LCA addressed school taxes
in addition to establishing the FID. The title of SB 509 read as follows:
To continue in force and effect as a part of the Constitution of the State of Georgia that constitutional amendment (Ga. L. 1979, p. 1797), which relates to the establishing of the Fulton County Industrial District and prohibits the board of commissioners from levying any tax for education purposes within the district; to provide the authority for this Act; to repeal conflicting laws; and for other purposes.
Id. (emphasis added).
The public notice for SB 509 read:
Notice is given that there will be introduced at the regular 1986 session of the General Assembly of Georgia a bill to continue in force and effect as a part of the Constitution of Georgia that constitutional amendment (Ga. L. 1979, p. 1797) which relates to the establishing of the Fulton County Industrial District and prohibit the Board of Commissioners from levying any tax for education purposes within the district and to levy taxes in support of such services; to provide the authority for this Act; to repeal conflicting laws; and for other purposes.
Id., p. 4439 (emphasis added).
As the underlined language above makes clear, while the title and the public notice of SB
509 reference school taxes, they incorrectly describe the legislation and the 1979 LCA. In direct
contrast to the title, text, and public notice of SB 509, the 1979 LCA expressly directed a tax for
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education purposes within the district, i.e., the FID - "The properties within [the FID] shall be
subject to all taxes for school purposes." Ga. L. 1979, p. 1799.
The Georgia Constitution prohibits legislation whose titles do not accurately convey the
subject matter of the bill. Article III, Section V, Paragraph III provides "No bill shall pass which
refers to more than one subject matter or contains matter different from what is expressed in the
title thereof." See Art. III, § V, ~ III "One subject matter expressed"; Fortson v. Weeks, 232 Ga.
472,474 (1974) (quoting Prothro & Kendall v. Orr, 12 Ga. 36 (1852).
Legislation with incorrect titles is invalid. See Sherman Concrete Pipe Co. v. Chinn, 283
Ga. 468, 469-70 (2008); Nelson v. S. Guaranty Ins. Co., 221 Ga. 804, 807-08 (1966); Carsello v.
State, 220 Ga. 90, 93-94 (1964); Bray v. City of East Point, 203 Ga. 315 (1948).
The title and public notice of SB 509 are thus, at best, incomplete according to the rule
from Atlanta Gas Light Co., which requires inclusion of all of the "material provision[ s] of the
proposed Act." 228 Ga. at 514. See also Stepp v. Lance, 233 Ga. 358,359 (1974). Further, both
the notice and the title are misleading and inadequate because they incorrectly state that the 1979
LCA prohibits the Fulton Commission from levying taxes in support of education purposes
within the FID when it in fact does the opposite. The notice and the title of SB 509 also omit any
mention of Atlanta, which was the geographic limit of the school tax provision, not the FID.
That omission itself invalidates SB 509. See Adams, 206 Ga. at 690; Schneider, 207 Ga. at 435.
Accordingly, the Court holds that the 1979 LCA was not validly continued by either HB
85 or SB 509, and was thus "repealed ... and deleted" by Article XI as of July 1, 1987.
CONCLUSION
For the foregoing reasons, the 1979 LCA violated the Single Subject Rule and related
constitutional provisions during the 1979 LCA' s initial passage. Further, both attempts by the
1349620.1 12
General Assembly to continue the 1979 LCA by local act were constitutionally defective and
failed as a matter of law to continue the 1979 LCA past the sunset date established by Article XI.
Accordingly, whether void ab initio or repealed by the 1983 Constitution, the 1979 LCA is of no
force or effect and thus does not prohibit annexation, Accordingly, Atlanta may annex in
aCCOrdaI1Ce with and subject to the restrictions and protections of property owners contained in
O.C.G.A. § 36-36-1 et seq. Any defenses raised by Respondent not otherwise discussed in this
Order are denied. Each party shall bear its own fees and expenses in connection with this matter.
IT IS SO ORDERED, this 31 st day of August, 20~5. .. ;;/ ~ ./
-# d,' ~
Prepared by: Emmet 1. Bondurant Georgia Bar No. 066900 David G.H. Brackett Georgia Bar No. 068353 [email protected] Robert L. Ashe III Georgia Bar No. 208077 [email protected]
BONDURANT, MIXSON & ELMORE, LLP
1201 W. Peachtree Street, NW Suite 3900 Atlanta, GA 30309 Telephone (404) 881-4100 Facsimile (404) 881-4111 Attorneys for the City of Atlanta
cc: Cheryl Ringer, Esq. Kaye Burwell, Esq. Marvin Harkins, Esq.
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