Georgia Local Government Law: Court Resolution of County Government Disagreements - Paul Vignos

• Publication year: 1994

Georgia Local Government Law: Court Resolution of County Government Disagreementsby Paul Vignos^*

I. Introduction

County government regularly involves disagreements between county commissioners and other county officers. Solutions include arbitration,¹ mediation,² recalls,³ regular elections,⁴ and courtroom confrontations.⁵ Enough cases go through the courts to suggest a pattern of judicial resolution. In reviewing past decisions, one hopes to understand what the courts offer, how they work, why they decide as they do, and who they favor. At least, one hopes to reduce potential frustration over court battles that might be better resolved elsewhere.

II. Background Issues

A. The Role of History in Georgia County Government

Historical developments affect today's Georgia county governments as much as modern law making does. The county offices of sheriff, tax commissioner, probate judge, clerk of the superior court, treasurer, coroner, and surveyor are all as old as the state of Georgia. Each office has a role in administering the remote business of state government at the county level, but not all offices are constitutionally protected.⁶ Arguably, no county officer performing administrative duties should be constitutionally protected.⁷ Concern for the local balance of power combined with 200 years of history,⁸ however, prompted specific protection for the sheriff, tax collector, clerk of the court, and probate judge.⁹

When the subcommittee on local government organization met to consider changes for the Georgia Constitution of 1983, they based protection of county officers on three concerns: 1) political pressure by the county officers themselves;¹⁰ 2) balance of power within the county system;¹¹ and 3) guidance for the court system.¹² During protracted debates on whether the county officers needed constitutional protection from the governing authority, Representative Warren Evans plainly stated, "I don't want the county commissioners to control all of the officers in the county. I think there has to be some independence there."¹³ Mr. Merrill Greathouse, president of the Georgia Sheriff's Association and Sheriff of Upson County, argued for state-set minimum salaries rather than risk a compensation structure controlled by the county governing authority.¹⁴ The chairman finally concluded, "We have the sense of the committee by majority expression that we do not want the express power to delegate [control of county officer salaries to the county governing authority]."¹⁵ Constitutional protection was, therefore, a response to an evolving struggle between officers at the county level in which the governing authority was winning.

The struggle periodically reaches the Georgia Supreme Court, but generally the courts adopt a hands-off policy of deference to the county governing authority. A particularly difficult case involving deference to the county governing authority found its way to the supreme court in Grimsley v. Twiggs County}¹⁶ The case developed out of the clerk of the superior court's perceived need to hire temporary help for two weeks. The county governing authority disagreed. The clerk secured a letter from the superior court judge authorizing payment for the services and hired the help. The governing authority refused payment again. At the end of the court term, the clerk requested payment a third time, and the governing authority refused again.¹⁷

The problem raised was that the viability of the courts seemed to depend on the discretion of the county commissioners. The clerk attempted to fulfill her statutory duties within the judicial branch of government. The supreme court sided with the clerk.¹⁸ The court based its finding on the separation-of-power principle implemented in the general law authorizing county payment of court expenses "upon certification of the judge of superior court, and without further order."¹⁹ The supreme court proclaimed that the courts "stand between the people and tyranny. They protect the public from the heavy hand of governmental excess .... The inherent power of the court must be carefully preserved, but also cautiously used."²⁰

This cautionary language saved the case from breaking with an established line of cases holding that the separation-of-powers doctrine does not extend to the county level. Feagin v. Freeney²¹ is typical. Holding that it was not concerned with expediency, but only with legality, the supreme court affirmed a line of cases upholding delegations of legislative salary-fixing powers to administrative offices.²² Having first decided that delegation of quasi-legislative power does not violate the constitutional prohibition against legislative delegation per se, the court considered whether delegation of salary fixing powers triggered the constitutional separation-of-powers prohibition.²³ The immediate question before the court was whether the Bibb County Board of Commissioners could set the salary of a municipal court judge of Macon. The risk to avoid was the power of the county commissioners to reduce a salary to "such a small sum as will deprive the judge of an adequate salary and therefore in effect ... to practically abolish the court."²⁴ However, the court relied on the fact that inferior judges were not even paid until midway through the 19th century.²⁵ That historical fact, therefore, precluded any real risk that insufficient compensation would fail to attract officers and vanquish the courts in 1941.²⁶

Feagin v. Freeney continues to be good law as well as Grimsley v. Twiggs County, but the cautionary character of Grimsley has taken precedence over the court-as-protector language.²⁷ In Cramer v. County of Spalding.²⁸ the supreme court recently affirmed the court's historical position of a cautionary, hands-off approach to county government.²⁹ The disagreement at issue was between the county commissioners and the judge of the State Court of Spalding County.³⁰

The judge, misunderstanding Grimsley to authorize hiring and firing of court staff at his own discretion, appointed an additional judge and assistant solicitor to deal with an unusually heavy demand for speedy DUI trials.³¹ The county commissioners at first refused to honor the judge's order for temporary help in the crisis. They condoned the temporary positions only after losing their initial legal challenge and learning from their legal counsel that the court was statutorily empowered to make the necessary expenditures.³² When the crisis was over and the judge attempted to make the positions permanent, however, the commissioners returned to court with a stronger case and won. Regardless of the judge's perceived needs, the supreme court held that he had usurped powers beyond his authority.³³ Citing Grimsley, the court noted that the inherent powers of the court must be exercised with caution when interfering with county government, and it also noted that inherent powers do not authorize indefinite appointments and expenditures that are otherwise matters delegated for decision by the general assembly to the governing authority of each county.³⁴

Judicial caution follows from an understanding that Georgia counties are essentially creatures of the state.³⁵ They deliver the day-to-day services that are planned, conceived, and defined by the general assembly. The counties administer general acts to the extent they apply to local unincorporated communities. As the primary conduit for delivery of state services and mandates, the county system began simply as a structure for the administration of state sovereignty³⁶ and for the apportionment of local representation in state government.³⁷

Initially, the administrative arm of the state ended in the hands of inferior court judges. Eventually, the general assembly removed the administrative duties of inferior judges and vested them in executive agents.³⁸ County governing authorities³⁹ were thus established on a county-by-county basis in local acts passed by the general assembly.⁴⁰ Their power was strictly limited by law,⁴¹ and they were generally called commissioners of roads and revenues in recognition of their two most important priorities: 1) maintenance of the road system basic to transportation and communication; and 2) supervision of the state tax system which was, until the twentieth century, primarily a land tax system dependent on local appraisals, assessments, and collections. In 1968, as their role expanded, the term "commissioners of roads and revenues" was simplified statewide to the more general term "commissioners."⁴² At approximately the same time, the centralized general assembly was placing such a burden on the county structure that it seemed logical to adopt some form of home rule.

B. The Home Rule Movement

Home rule is both a political and a legal concept. As a political concept, it stands for local autonomy based on theories of government efficiency. As a legal concept, it stands for the method by which power is allocated between state and local governmental agencies to achieve the political goal of local autonomy. There are two general models for home rule: 1) Constitutional home rule, "imperium in imperio" (a state within a state);⁴³ and 2) legislative home rule.⁴⁴

Georgia's relatively recent adoption of home rule combines features of both general models ⁴⁵ A 1966 amendment to the Georgia Constitution grants broad, self-executing powers to counties;⁴⁶ but they are subject to prior general law and subsequent modification by the general assembly.⁴⁷ For example, Georgia counties have exclusive zoning powers to regulate land use⁴⁸ subject only to procedural requirements approved by the general assembly.⁴⁹ However, Georgia counties may not regulate the quality of manufactured homes by inspection ordinances. That privilege is preempted by a general law setting statewide standards for the manufactured homes industry.⁵⁰ Despite the constitutional form, Georgia's concept of home rule is therefore in line with the national trend toward...