Mandamus Denied: Referendum Dispute May Have Larger Implications
Daily Report – August 08, 2022 at 03:01 PM
Cedra Mayfield
“The bill is directory and not mandatory,” wrote Fulton County Superior Court Judge Thomas A. Cox Jr.
What You Need to Know
- Judge denies writ of mandamus filed against city of College Park, mayor and councilmembers.
- College Park resident sought relief after councilmembers removed Homestead Exemption referendum from Nov. 8, 2022 election.
- Trial court determined there is no penalty or sanction incorporated into disputed House Bill 1417.
A Fulton County resident’s attempt to force the city of College Park to place a homestead exemption referendum on its Nov. 8 general election ballot has failed.
Fulton County Superior Court Judge Thomas A. Cox Jr. has denied an emergency petition for writ of mandamus filed on behalf of resident Shirley Robinson against the city of College Park, Mayor Bianca Motley Broom, City Councilmen Ambrose Clay and Ken Allen and Election Superintendent Shavala Ames.
The ruling that’s “disappointed” petitioner counsel and “pleased” respondents may have larger implications about the discretion afforded to municipal governments that exercise “Home Rule” under Georgia law.
‘Revised’ Exemption
At issue is a debate over the implementation of HB 1417. Signed into law by Gov. Brian Kemp in April, the bill “provided a homestead exemption from the city of College Park ad valorem taxes for municipal purposes in the amount of the full assessed value of the homestead for residents of that city who are 65 years of age or older [and] … to provide for a referendum” on that homestead exception.
But a move by College Park City Council members effectively excluded the referendum, as written, from the November election cycle, prompting Robinson’s lawsuit.
“On or about July 11, 2022, at a meeting of the College Park City Council, ‘Councilman Clay moved to approve a resolution to call the November 8, 2022, election without the Homestead Tax Exemption; and to add the revised Homestead Tax Exemption to the next available election,’” Robinson’s complaint alleged. “The resolution was ‘seconded by Councilman Allen; … Mayor Motley Broom voted yes and motion [sic] carried.’”
Bianca Motley Broom, mayor of College Park, Georgia. (Courtesy photo)
In a video released by the city, Mayor Motley Broom addressed the referendum removal. She said, “The homestead tax exemption bill passed by the Georgia legislature for the city of College Park did not include language that reflected the intent of mayor and council.”
Rather than providing relief to the city’s “most financially vulnerable seniors and people with disabilities who might otherwise lose their homes because of unpaid property taxes,” the mayor said the bill provided “significant financial benefit to individuals who are not economically disadvantaged, unnecessarily increased loss of tax revenue for the city and omitted the intended exemption for disabled residents,” instead.
“We want all citizens and constituents of College Park to know that, even if the bill had been approved by the voters in November 2022 as initially planned, the homestead tax exemption was set to take effect for the 2023 tax year,” Motley Broom said in the video. “That goal is still attainable.”
‘Not Mandatory’
Judge Thomas A. Cox Jr., Fulton County Superior Court. Atlanta. (Courtesy photo)
With time ticking down to get the homestead exemption referendum on the Nov. 8 general election ballot by an Aug. 8 deadline, both sides convened for an emergency hearing before Fulton County Superior Court Judge Thomas A. Cox Jr. on Aug. 5.
Following the Zoom proceeding, Cox issued an order denying the petitioner’s request for writ of mandamus after determining the language of HB 1417 didn’t incorporate a penalty or sanction.
“The Act uses the word ‘shall’ no fewer than five times in prescribing the Referendum, its substance, its date, and the procedures to be followed in conducting it,” Cox wrote. “The Defendant’s, however, pointed to Charles H. Wesley Educ. Found., Inc. v. State Election Bd … to show that when a statute does not contain a penalty of sanction, any ‘shall’ contained therein is directory, not mandatory. Here, it is very clear that there is no penalty or sanction incorporated into the Bill.”
Cox expressed concern with language included in the bill that stated, “If the Act is not so approved or if the election is not conducted as provided in this section, Section 1 of this Act shall not become effective, and this Act shall be automatically repealed on the first day of January immediately following that election date.”
“The use of the words ‘or if’ indicate that the City of College Park failing to include this language came into the contemplation of the legislators when drafting this Bill,” Cox wrote. “The only way to square the plain language of the act with the use of both ‘shall’ and ‘or if’ is to find that the Bill is directory and not mandatory.”
‘In Time’ for 2023
Lucas W. Andrews, trial attorney with Poole Huffman in Tucker
(Courtesy photo)
Word of the denial didn’t sit well with plaintiff counsel Lucas W. Andrews, a trial attorney with Poole Huffman in Tucker.
“I’m very disappointed for my client, Shirley Robinson, and those who, like her, are going to have to find a way to get by without the Homestead Exemption living on fixed income in these difficult, inflationary times,” he said Monday.
Meanwhile, Motley Broom welcomed the news.
“I am pleased this matter has been settled by the court in the City’s favor. We are now able to focus on achieving the goal we’ve been working toward: homestead tax relief for our most vulnerable seniors and disabled residents,” Motley Broom said. “ We look forward to working with our local delegation to get this issue on the ballot in time for the 2023 tax year as originally intended.”
Winston Denmark of Fincher Denmark. (Courtesy photo)
Atlanta Attorneys Winston Denmark, Paul Dzikowski and T. Orlando Pearson of Fincher Denmark represented the respondents in getting the petitioner’s mandamus action dismissed, but did not provide a comment when reached Monday.
In the respondents’ motion for dismissal, the trio of litigators argued that under Georgia’s law of “Home Rule” for municipalities, the city of College Park didn’t need approval from the state government to remove the referendum from the Nov. 8 ballot.
“Georgia law provides for Home Rule, i.e., municipal governing authorities possess legislative power that is consistent with Georgia law and city charters, which shall remain in effect until amended or repealed,” read a footnote in the respondent brief.
Respondent counsel argued that, because Home Rule is “the delegation of the General Assembly’s legislative to the municipal governing authority,” including the mayor and council, that the electorate or citizens “cannot directly exercise general legislative power by compelling referendums on all legislation.”
“Because the Charter affords discretionary authority to the Mayor and Council to conduct referendums, Petitioner cannot utilize mandamus to usurp this delegation of discretionary legislative authority,” the brief read. “Indeed, the above-captioned petition patently runs afoul of Home Rule and, thus, mandamus relief is not available.”
What You Need to Know
- Judge denies writ of mandamus filed against city of College Park, mayor and councilmembers.
- College Park resident sought relief after councilmembers removed Homestead Exemption referendum from Nov. 8, 2022 election.
- Trial court determined there is no penalty or sanction incorporated into disputed House Bill 1417.
A Fulton County resident’s attempt to force the city of College Park to place a homestead exemption referendum on its Nov. 8 general election ballot has failed.
Fulton County Superior Court Judge Thomas A. Cox Jr. has denied an emergency petition for writ of mandamus filed on behalf of resident Shirley Robinson against the city of College Park, Mayor Bianca Motley Broom, City Councilmen Ambrose Clay and Ken Allen and Election Superintendent Shavala Ames.
The ruling that’s “disappointed” petitioner counsel and “pleased” respondents may have larger implications about the discretion afforded to municipal governments that exercise “Home Rule” under Georgia law.
‘Revised’ Exemption
At issue is a debate over the implementation of HB 1417. Signed into law by Gov. Brian Kemp in April, the bill “provided a homestead exemption from the city of College Park ad valorem taxes for municipal purposes in the amount of the full assessed value of the homestead for residents of that city who are 65 years of age or older [and] … to provide for a referendum” on that homestead exception.
But a move by College Park City Council members effectively excluded the referendum, as written, from the November election cycle, prompting Robinson’s lawsuit.
“On or about July 11, 2022, at a meeting of the College Park City Council, ‘Councilman Clay moved to approve a resolution to call the November 8, 2022, election without the Homestead Tax Exemption; and to add the revised Homestead Tax Exemption to the next available election,’” Robinson’s complaint alleged. “The resolution was ‘seconded by Councilman Allen; … Mayor Motley Broom voted yes and motion [sic] carried.’”
Bianca Motley Broom, mayor of College Park, Georgia. (Courtesy photo)
In a video released by the city, Mayor Motley Broom addressed the referendum removal. She said, “The homestead tax exemption bill passed by the Georgia legislature for the city of College Park did not include language that reflected the intent of mayor and council.”
Rather than providing relief to the city’s “most financially vulnerable seniors and people with disabilities who might otherwise lose their homes because of unpaid property taxes,” the mayor said the bill provided “significant financial benefit to individuals who are not economically disadvantaged, unnecessarily increased loss of tax revenue for the city and omitted the intended exemption for disabled residents,” instead.
“We want all citizens and constituents of College Park to know that, even if the bill had been approved by the voters in November 2022 as initially planned, the homestead tax exemption was set to take effect for the 2023 tax year,” Motley Broom said in the video. “That goal is still attainable.”
‘Not Mandatory’
Judge Thomas A. Cox Jr., Fulton County Superior Court. Atlanta.
(Courtesy photo)
With time ticking down to get the homestead exemption referendum on the Nov. 8 general election ballot by an Aug. 8 deadline, both sides convened for an emergency hearing before Fulton County Superior Court Judge Thomas A. Cox Jr. on Aug. 5.
Following the Zoom proceeding, Cox issued an order denying the petitioner’s request for writ of mandamus after determining the language of HB 1417 didn’t incorporate a penalty or sanction.
“The Act uses the word ‘shall’ no fewer than five times in prescribing the Referendum, its substance, its date, and the procedures to be followed in conducting it,” Cox wrote. “The Defendant’s, however, pointed to Charles H. Wesley Educ. Found., Inc. v. State Election Bd … to show that when a statute does not contain a penalty of sanction, any ‘shall’ contained therein is directory, not mandatory. Here, it is very clear that there is no penalty or sanction incorporated into the Bill.”
Cox expressed concern with language included in the bill that stated, “If the Act is not so approved or if the election is not conducted as provided in this section, Section 1 of this Act shall not become effective, and this Act shall be automatically repealed on the first day of January immediately following that election date.”
“The use of the words ‘or if’ indicate that the City of College Park failing to include this language came into the contemplation of the legislators when drafting this Bill,” Cox wrote. “The only way to square the plain language of the act with the use of both ‘shall’ and ‘or if’ is to find that the Bill is directory and not mandatory.”
‘In Time’ for 2023
Lucas W. Andrews, trial attorney with Poole Huffman in Tucker.
(Courtesy photo)
Word of the denial didn’t sit well with plaintiff counsel Lucas W. Andrews, a trial attorney with Poole Huffman in Tucker.
“I’m very disappointed for my client, Shirley Robinson, and those who, like her, are going to have to find a way to get by without the Homestead Exemption living on fixed income in these difficult, inflationary times,” he said Monday.
Meanwhile, Motley Broom welcomed the news.
“I am pleased this matter has been settled by the court in the City’s favor. We are now able to focus on achieving the goal we’ve been working toward: homestead tax relief for our most vulnerable seniors and disabled residents,” Motley Broom said. “ We look forward to working with our local delegation to get this issue on the ballot in time for the 2023 tax year as originally intended.”
Winston Denmark of Fincher Denmark. (Courtesy photo)
Atlanta attorneys Winston Denmark, Paul Dzikowski and T. Orlando Pearson of Fincher Denmark represented the respondents in getting the petitioner’s mandamus action dismissed, but did not provide a comment when reached Monday.
In the respondents’ motion for dismissal, the trio of litigators argued that under Georgia’s law of “Home Rule” for municipalities, the city of College Park didn’t need approval from the state government to remove the referendum from the Nov. 8 ballot.
“Georgia law provides for Home Rule, i.e., municipal governing authorities possess legislative power that is consistent with Georgia law and city charters, which shall remain in effect until amended or repealed,” read a footnote in the respondent brief.
Respondent counsel argued that, because Home Rule is “the delegation of the General Assembly’s legislative to the municipal governing authority,” including the mayor and council, that the electorate or citizens “cannot directly exercise general legislative power by compelling referendums on all legislation.”
“Because the Charter affords discretionary authority to the Mayor and Council to conduct referendums, Petitioner cannot utilize mandamus to usurp this delegation of discretionary legislative authority,” the brief read. “Indeed, the above-captioned petition patently runs afoul of Home Rule and, thus, mandamus relief is not available.”