OEDEL: Border war report

September 15, 2013 

With the Syrian crisis abating, local attention turned to another skirmish, this one in the long-simmering border dispute between Monroe and Bibb counties. Thankfully, this local battle was conducted politely, if intensely, pursuant to the rule of law at Georgia’s Supreme Court. No chemical weapons were in evidence except maybe dueling lawn fertilizers. In essence, the counties are vying for title of greenest grass near Bass Pro Shops.

At legal issue was whether a Fulton County judge could order Georgia’s Secretary of State Brian Kemp to accept a surveyor’s line that Kemp determined was not the “true” line between the counties. Statutes require him to make a determination after a surveyor appointed by the governor proposes a line conforming to the legislature’s formal direction.

Georgia’s Solicitor General Nels Peterson for Kemp argued that Kemp had discretion as a constitutional officer pursuant to his statutory political duty to set the true line, and that if he could not fairly do so, it was within his discretion to determine that the surveyor’s proposed line was not true to the legislative direction.

When probed by Justices Keith Blackwell and Harold Melton about the limits of that discretion, Peterson allowed that the secretary could be overseen by courts if the secretary grossly abused his discretion in performing his statutory duties.

Peterson insisted, though, that Kemp didn’t abuse that discretion by appointing someone to help him sort through the evidence, then rejecting the helper’s recommendation because of facial problems with the proposed line. Nor was it an abuse, Peterson argued, to decline to set a line that Kemp wasn’t convinced was true to the legislative direction, or to close the evidence after repeated attempts to carefully examine the surveyor about his proposal.

Charles Cork for Bibb County then added details about why Kemp’s doubts were sensible. For instance, the surveyor’s proposed line would have left an island of Bibb in Monroe, which would violate a contemporaneous constitutional provision that Georgia’s counties be contiguous.

Moreover, the legislature declared that the line should go to a point at “Waller’s or Torrentine’s ferry.” Waller’s ferry was probably the more northerly one, but the surveyor pegged his proposed line to Torrentine’s ferry. Cork explained the basic rule that when two options are given in a property description that are inconsistent, the interpreter is legally supposed to adopt the first one listed -- in this case, Waller’s rather than Torrentine’s ferry.

Tish McDonald, a lawyer for Monroe County, was then subjected to withering questioning from Justices Blackwell and Melton about why a judge should be allowed to tell the secretary of state to adopt a line that the secretary didn’t find to be true to the legislative direction.

I wouldn’t have wanted to defend that position, and McDonald didn’t seem to like that position either, retreating and scrambling repeatedly in the course of the questioning.

Monroe’s lawyers were finally cornered by a line of careful questioning by Justice Blackwell about why the statutes guiding the secretary of state shouldn’t logically mean that the secretary had already complied by “determining” that the one proposed line in evidence wasn’t true.

It’s dicey to predict a result from oral argument, especially with a majority of the bench remaining silent, as was the case here.

Still, the look and feel of the proceedings suggested to me that the court may well vacate the judge’s order for Kemp to impose a line that Kemp didn’t find to be true to the legislative direction.

But don’t take my word for it. Afterward, I asked Monroe County Commission Chairman Mike Bilderback if he’d now consider asking Kemp to reopen the proceedings instead of waiting on the Supreme Court to see if it will uphold the Fulton judge’s shaky order to Secretary Kemp -- curiously issued without Bibb having been “invited to the party,” as Bibb lawyer Virgil Adams put it. Bilderback said that it sounded offhand as if reopening the proceedings now might be a fine idea. If Bilderback had thought the argument went well for Monroe, that wouldn’t have been his answer.

David Oedel teaches constitutional law at Mercer’s law school.

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