End the war now

February 10, 2013 

The war, the border war, that is. Monroe County and Bibb County have had an uncertain border since an early survey from the 1820s was lost. It’s an issue that a Monroe County grand jury was asked to dredge up a few years ago, leading to a boundary review by Georgia’s Secretary of State Brian Kemp.

After Kemp declined to adopt the line Monroe wants, the county mounted two lawsuits to force Kemp to adopt its preferred boundary.

Why did Monroe push? The border-area property has become more valuable. Bibb invested millions of dollars helping Bass Pro Shops situate near that border in 2005. Monroe seeks to move the border south to collect more property taxes from Bass Pro and other border properties. Monroe Commission chairman Mike Bilderback, who for years advanced the litigation as commissioner before losing that seat, apparently changed his mind during his subsequent campaign for chair. During his later, winning campaign, Bilderback said Monroe’s huge litigation costs -- more than $2 million so far and counting -- may not be worth the prize. If Monroe did get to tax Bass Pro, Monroe would also need to reimburse Bibb for millions more in infrastructure costs.

The latest skirmish in the border war favored Monroe, but probably just temporarily. On January 23, a recently-elected Fulton County Superior Court judge, Kelly A. Lee, ruled for Monroe in a proceeding to which Bibb was not invited and did not attend. Lee ordered Kemp to accept a survey done by Terry Scarborough, Bilderback’s first cousin, once removed.

Kemp was understandably reluctant to adopt Scarborough’s proposed line, not just because Scarborough was Bilderback’s cousin, but because Scarborough repeatedly refused to submit to any questioning by Kemp or Bibb about his proposed change.

Judge Lee is politically adept to have gotten elected despite two DUI’s and limited legal experience. But being politically adept didn’t save her from being legally inept. In her amazingly brazen ruling telling a constitutional officer elected statewide precisely how to perform his job of settling thorny, longstanding disputes among political subdivisions, Lee fatally undercut her own decision. She acknowledged that Georgia law requires Kemp, as Georgia’s Secretary of State, not the courts, to weigh “the law and evidence,” and then decide if possible “the true boundary line in dispute between the respective counties.”

In other words, Lee acknowledged that Kemp was required to decide border disputes in a “discretionary,” not “ministerial” way, which means Kemp was required to use some thoughtful judgment in the process of settling such a difficult matter. Even Lee admitted that “the law gives the Secretary of State a great deal of leeway in how he will hear protests or exceptions.”

Lee’s ruling is astounding because every U.S. law student is taught on Day 1 of Constitutional Law about a far more famous dispute that was proposed also to be resolved through the “mandamus” procedure, by which a court might tell an official like a secretary of state what to do.

In that celebrated 1803 case of Marbury v. Madison, U.S. Chief Justice John Marshall explained that mandamus is appropriate only when there’s no meaningful discretion left for an official. In that setting, it was whether an appointment duly signed by the U.S. secretary of state should be delivered to the appointee, William Marbury.

Marshall made clear in his historic decision that the courts have no business substituting their own discretionary judgments for the discretionary judgments of constitutional officers like a secretary of state. In today’s terms, any such overly activist judge would be said to be violating the separation of powers.

It’s legally irrelevant whether Secretary Kemp exercised wise discretion in rejecting the shaky, undefended survey of Bilderback’s cousin. What matters is whether Kemp’s decision was discretionary, not some rote, ministerial stamp. Legally, Kemp’s decision was obviously discretionary.

If Monroe doesn’t settle now, Georgia’s Supreme Court will probably reverse Lee’s facially silly decision and open the door for Bibb to recover its legal costs. Monroe’s opportunistic charade has gone on long enough. End it now.

David Oedel teaches constitutional law at Mercer.

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