Local Government Law - R. Perry Sentell, Jr.
| Publication year | 1997 |
Local Government Lawby R. Perry Sentell, Jr.*
The world of local government is a place of remarkable occurrences:
At the meeting of the governing authority, the chambers were overflowing, passions were palpable, and the media descended in droves. The vote was taken on the re-zoning petition. The council's vote was evenly split. The newly elected Mayor would have to break the tie. He announced to all that he did not know how he should vote. He then proceeded to toss a coin into the air, explaining that if it was "heads," he would vote "yes," and if it was "tails," he would vote "no." As if in slow motion, the coin descended—and the Mayor voted "yes."!1
The law applicable to local governments, both decisional and statutory, is no less remarkable.2
I. Municipalities
A. Annexation
The Georgia General Assembly provides two basic methods of municipal annexation: (a) by enacting individual local statutes; and (b) by authorizing municipalities themselves to effect the procedure.3 The latter method includes three systems,4 each of which expressly limits the municipal annexation power to "contiguous" territory.5 Whether annexation by local statute is likewise limited was, prior to this survey period, an unresolved issue.6
The Georgia Supreme Court finally provided the answer in City of Fort Oglethorpe v. Boger,1 a challenge to a local statute annexing land "not adjacent or contiguous to an existing municipal boundary."8 Reversing the trial judge, the supreme court declared the legislature's annexation power both "plenary," and "limited only by the federal and state constitutions."9 Accordingly, the court held the non-contiguous property validly within the municipality.10
B. Officers and Employees
Litigation of the survey period focused upon municipal officers and employees from a number of intriguing perspectives. Few perspectives are more intriguing than the historic writ of quo warranto,11 the action featured in Hornsby v. Campbell.12 The contest turned upon whether the appointment-retention office of city solicitor13 constituted an "elective" position which the holder automatically vacated upon qualifying as a candidate for county district attorney.14 Although retention elections subject the incumbent only to a yes-or-no popular vote, the supreme court declared the solicitor a "municipal elected official" subject to the vacation prescription.15
Equally extraordinary, the writ of mandamus constituted the disgruntled employee's remedy of choice in Byrd v. City of Atlanta.16 That employee, whose dismissal had been modified to suspension, sought an order for the award of back pay.17 On grounds that petitioner could have challenged the board's omission of back pay by writ of certiorari,
"an adequate legal remedy,"18 the supreme court held mandamus unavailable.19
To complete the high intrigue cycle, City of Buchanan v. Pope20 encompassed an official's plea of municipal estoppel.21 There the court of appeals was able to reconcile the municipal "refusal to reappoint" its long-time police chief with the municipal police manual's protection against "dismissal."22 The former power derived from the municipal charter so that even in the event of conflict it would prevail over the provisions of the manual.23 To the former chief's argument that the city had previously failed to abide by its charter, the court declared any such failures "ultra vires."24 "[TJhere can be no [municipal] estoppel," the court explained to the chief, "where the act is ultra vires."25
Yet another police officer's dismissal yielded the contest in City of Atlanta v. Houston.26 The case climaxed the trial judge's efforts to clarify the municipal civil service board's actions in overturning the dismissal and ordering a suspension.27 Specifically, the judge ordered members of the 1992 board to reconvene in 1995 and explain their decisions.28 Reversing that order, the court expressly concurred with the city's position that "the superior court erred as a matter of law by ordering the reconstitution of the former Board thereby impermissibly bestowing upon ordinary citizens authority that could only be granted to them by the charter, code of ordinances, and mayoral appointment."29
Few aspects of municipal employment attract more litigation than workers' compensation.30 In Autry v. Mayor of Savannah,31 the court of appeals reviewed an assessment of attorney fees for the municipality's refusal to pay for an injured employee's physical therapy.32 Emphasizing the standard as one of "reasonable grounds,"33 the court noted evidence that the prescribed therapy was unlikely to effect a cure or give relief.34 Accordingly, "the finding of the board that the City's defense was made without reasonable grounds is without evidence to support it."35
C. Elections
The process of filling the office of municipal council gave rise to two contests during the period under scrutiny. In Maye v. Pundt,36 the attack went to ballot preparation.37 In response, the supreme court held that the challenger possessed no statutory right to have his nickname placed on the ballot.38 Such matters, the court asserted, "are best left to the discretion of the General Assembly."39 Additionally, the court refused to void the election for the superintendent's failure to prepare a sample ballot.40 That "irregularity," the court held, was insufficient "to change or place in doubt the result of the election."41
The second contest, City of East Point v. League of Women Voters,42 featured disagreement over filling a council vacancy. Under the municipal charter, the term of the office was four years and, if the vacancy occurred during the last two years, it was to be filled by appointment.43 The court held that later general statutes had changed the office term to five years, with the result that more than two years remained in the term at the time of the vacancy's occurrence.44
Accordingly, the charter required a special election for the unexpired term.45
D. Regulation
The municipality must ever be mindful of the illusive line between regulation and taxation, and of the general prohibition against employing the latter to accomplish the former.46 That prohibition operated in Sexton v. City of Jonesboro47 to invalidate a municipal "occupation tax" on practicing law.48 As structured, the measure required registration and fee payment at the beginning of each year, thus operating as a "precondition on the practice of law."49 Additionally, the measure imposed punishment not upon delinquency of payment, but upon the delinquent's attempt to conduct business.50 Both those features convinced the supreme court that the "tax ordinance" operated "effectively as a precondition or license for engaging in the practice of law, rendering it a regulatory fee."51
Frequently, regulatory litigation pivots on procedural points. In Soerries v. City of Columbus,52 the court of appeals rejected a challenge to the municipal revocation of an alcoholic beverage license.53 Reviewing the challenger's attacks upon both ordinance and proceedings, the court emphasized that plaintiff's "exclusive mechanism [for challenging] the Council's revocation of his liquor license was by filing a petition for certiorari."54 In contrast, in City of Albany v. Oxford Solid Waste Landfill, Inc. ,55 the supreme court rejected the procedural argument.56 There the court approved a mandamus ordering issuance of a land disturbance permit.57 Refuting the municipal contention that an adequate legal remedy existed, the court deemed it "obvious that [requiring plaintiff] to pursue an administrative appeal before the City's Planning Commission would be a futile act."58
Substantively, municipal regulation continued its focus of recent years upon adult entertainment establishments.59 Secret Desires Lingerie, Inc. v. City of Atlanta60 featured an ordinance purporting to regulate lingerie modeling studios.61 Assuming the ordinance's impetus to be pernicious secondary effects of such studios, the supreme court sought municipal evidence of those effects.62 That search, the court announced, was in vain: "The City is unable to point to any evidence . . . that it considered specific studies of the pernicious secondary effects of lingerie modeling studios before enacting the ordinance."63 Accordingly, the court declared the measure unconstitutional.64
The municipality enjoyed more success in Goldrush II v. City of Marietta,65 defending its 1995 ordinance prohibiting any one establishment from obtaining both a liquor license and an adult entertainment license.66 Establishments previously possessing both licenses presented the court with broad constitutional challenges. In an extensive opinion, the Chief Justice first declared free from federal infirmity Georgia's 1994 amendment to its constitution expressly delegating expansive regulatory authority over alcohol and nudity.67 Then focusing upon the ordinance itself,68 the court reviewed preamble statements,69 meeting tran- scripts,70 and executed affidavits.71 The court deemed this evidence sufficient to confirm the city's "predominate goal of combatting pernicious secondary effects,"72 and to establish the ordinance as "content-neutral."73 Proceeding to its familiar "tripartite test" for restrictions upon expression,74 the court held the ordinance to "pass constitutional muster" as "a proper exercise of the city's police power."75 Finally, the court considered previous license holders' claims to vested property rights. Although challengers held vested rights in licenses annually issued them,76 the court delineated, they possessed no "legitimate claim of entitlement to continued reissuance of their annual licenses,"77 and thus no "protectable property interest in their renewal."78
E. Property
Historically, municipalities obtain much property through the process of dedication. On occasion, the elements of that process, and their ramifications, become crucial both to city and citizen. Teague v. City of Canton79...
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