Local Government Litigation: Some Pivotal Principles - R. Perry Sentell, Jr.

• Publication year: 2003

SPECIAL CONTRIBUTION

Local Government Litigation: Some Pivotal Principlesby R. Perry Sentell, Jr.^*

I. Introduction

The legal sage, Oliver Wendell Holmes, Jr., once observed that "[f]acts do not often exactly repeat themselves in practice; but cases with comparatively small variations from each other do."¹ Although Holmes employed the observation in a specific litigation context,² his obviously possesses a broader relevance. At other junctures as well, that is to say, law's continuity bears emphasis as a fundamental feature of complete juridical synthesis.

This notion may initially appear unpersuasive in particular settings. In the pervasive realm oflocal government law, for example, novel issues continually confront the appellate courts with daunting questions of first impression. In that sphere, and peculiarly so, the tensions are intensely personal. There, the community's increasingly encroaching collectivism threatens the individual's perceptively receding uniqueness in matters unparalleled at other governmental levels. The conflicts are further fueled, moreover, by the sheer numbers of overlapping entities in the local government complex, each advancing its own jurisdictional cause. The nature of the beast, therefore, seemingly bodes discouragingly for any semblance of a recurring legal "order."

The appearance is, however, somewhat deceiving. For in local government litigation as well, it turns out, what goes around comes around. Even there, the present frequently, and undeniably, reflects the past. Particular principles work themselves into the evolving legal corpus; they assume pivotal status as analytical points of departure. They are the principles of "go to" significance when foundational conflicts arise; they are the principles that must be applied, distinguished, rejected, or ignored in moving to resolution.

The phenomenon periodically manifests itself to a degree deserving attention from those who appreciate case law's historical component. This brief account seeks to provide illustrative focus. It assembles a small assortment of modern instances in which Georgia's appellate courts retreat to the past to craft for the future. Thereby, the instances reconfirm the enduring nature of "pivotal" legal principles. Although by no means unfolding a "seamless web," the episodes do portray local government litigation's pulsating character of continuity.

II. Vignettes of Continuity

As indicated, the epochs of illustration are scattered throughout the corpus of Georgia local government law. Aside from the point in emphasis, they possess little else in common. Each, however, represents a tile in the mosaic here under scrutiny—a mosaic of litigational continuity. Each selected principle requires a briefsketch ofboth origin and modern sighting.

A. Reapportionment and Local Government

1. Background. By 1964 the United States Supreme Court had virtually completed evolution of its "one person, one vote" requirement for both Congress and state legislatures.³ Three more years elapsed, however, before the Court considered the principle's applicability to local governments.⁴ Even then, moreover, the Court rendered three decisions in rapid-fire succession, expressly refusing to declare applicability⁵ and postponing the inevitable by yet one additional year.⁶ The Supreme Court thus approached local government reapportionment via a reversal of the normal order: It first declared exceptions and only later adopted the requirement.⁷

Perhaps the most interesting of the exceptions emerged from the Court's 1967 decision in Sailors v. Kent County Board of Education,⁸ involving the membership of a Michigan county school board.⁹ The challenged system featured a procedure under which the people ofeach unequally populated county district elected their district's school board. Subsequently, delegates from the district boards met biennially to elect a county school board. Plaintiffs alleged that the second election (by the delegates from the unequal districts) constituted discrimination and violated the one person, one vote requirement.¹⁰ A divided three-judge district court dismissed plaintiffs' action,¹¹ and the Supreme Court affirmed the dismissal.¹²

The Court's opinion initially struck the note of a conditional assumption.¹³ Even assuming the equal-population mandate's applicability to elective local officials,¹⁴ the Court denied the precept's relevance to an appointive process.¹⁵ That point augured pivotal to the case, for "[t]he Michigan system for selecting members of the county school board is basically appointive rather than elective."¹⁶ Secondly, the Court deemed the appointive process completely appropriate for "administrative" officials.¹⁷ That point likewise proved decisive, for the county school board "performs essentially administrative functions; and while they are important, they are not legislative in the classical sense."¹⁸ Accordingly, the Court concluded, "[s]ince the choice of members of the county school board did not involve an election and since none was required for these nonlegislative offices, the principle of 'one man, one vote' has no relevancy."¹⁹

Exuding its "exceptions before the rule" approach to local government reapportionment, the Supreme Court's treatment of Sailors—both its omissions and commissions—raised intriguing points for ponder. The "omissions," from several perspectives, counseled caution in hasty appraisal. For instance, the Court in Sailors did not impose the equal population requirement generally upon local governments. Nor did the Court expressly declare the requirement applicable to "elective" local government officials. Nor did the Court permit a state's evasion of the mandate by selecting local "legislative" officials via an "appointive" process. Nor did the Court tender more than the sketchiest rationale for distinguishing "elective" and "appointive" local offices. Nor did the Court proffer even an analytical hint for classifying "legislative" and "administrative" functions. As for its "commissions," the Court in Sailors seized upon two primary facets of modification.²⁰ First, it approved employment of an "appointment" process for selecting an "administrative" local government official.²¹ Second, the Court worked an exemption of that "appointed" "administrative" official from the "one person, one vote" requirement.²² With Sailors, therefore, the Supreme Court crafted an "exception" of indefinite dimensions, an uncertain previous restraint upon the Court's subsequently declared "rule" of local government reapportionment.

2. Recent Sighting. Over the years following the United States Supreme Court's initial confrontations with local government apportionment, the issue received virtually no attention from the Georgia courts.²³ This fact, of course, constituted no cause for inordinate surprise. With federal rights and responsibilities commonly considered consigned to the federal judiciary, the matter of legislative representation was not one ordinarily anticipated for state court dispensation.

Rare occasions, nevertheless, provoked tantalizing reflections. In 1976 the Georgia Supreme Court considered the case of Rich v. State,²⁴ a multi-faceted constitutional challenge to a state authority established to promote low income housing.²⁵ The creating statute provided for a membership consisting of four state officials and two public appoint-ees.²⁶ That membership afforded lesser populated areas and businesses disproportionate representation, plaintiff charged, urging a violation of "one person, one vote."²⁷ In response, a unanimous supreme court disposed of plaintiff's position with a single sentence: "It is clear from Sailors v. Board of Education . . . that the one-man, one-vote mandate of the Constitution applies only to elected officials, and is thus inappropriate where, as here, members ofa clearly administrative authority are appointed."²⁸ In this fashion, therefore, focusing both upon the entity's "administrative" nature and its "appointive" selection, the court brought the Sailors exception into play. What the federal courts had evolved for local governments, the Georgia court thus extended to the state authority.

Aside from the most minimal of blips, Georgia's judicial radar screen thereafter remained clear. Local government apportionment savored of the distant past, the matter had received settled resolution, and the issue remained at rest.

Not so. Bursting onto the modern scene, Ramsbottom Co. v. Bass/Zebulon Roads Neighborhood Ass'n²⁹ unsealed local government apportionment history. The case brought to litigation the method employed for selecting members ofa municipal-county joint planning and zoning commission.³⁰ A joint municipal-county ordinance created the commission as a body of five county residents, three of whom must be city residents as well.³¹ Further, "[t]he City and County governing bodies alternate[d] appointing a Commission member for a five-year term, with one position turning over each year."³² Challengers maintained that the process disproportionately favored the municipality, and the trial judge declared the ordinance in violation of "one person, one vote."³³ The Georgia Supreme Court granted discretionary appeal.³⁴

A unanimous supreme court reversed the trial court's decision.³⁵ In an opinion of analytical contrasts, the court stamped its imprimatur upon the legacy ofSailors. on the one hand, the court posited, the "true nature" of the challenged selection process was "definitely appointive."³⁶ Just as in Sailors, the zoning commission's membership "'is not determined, directly or indirectly, through an election in which the residents of the county participate.'"³⁷ on the other hand, the court paid far less deference to Sailors's additional point of emphasis, i.e., limiting the "appointment" process to officials who perform "essentially administrative functions."³⁸ In justification of the deviation, the court explained that plaintiffs in Ramsbottom ...