Latest ruling in Bibb-Monroe border dispute goes Bibb’s way

Telegraph staffMarch 10, 2014 


Suzanne Gray's dog, Maggie, takes a sniff of the marker left behind by surveyor Terry Scarborough as he tried to map a new location for the Monroe-Bibb County line in the Providence subdivision in this 2011 file photo.


A Georgia Supreme Court ruling Monday handed Bibb County a win in its border dispute with Monroe County -- for now.

The justices reversed a lower court decision in the long-running dispute between the two counties.

In a unanimous decision, the court sent the case back to Fulton County Superior Court “for further proceedings consistent with this opinion.”

In its 22-page opinion, the court said Superior Court Judge Kelly A. Lee erred in two ways: in dictating the result of a review process by ordering the secretary of state to record a survey by Terry M. Scarborough, and in denying Bibb County’s motion to intervene in the case.

The dispute affects everything from where children go to school to which county gets millions of dollars in property tax revenue.

“That’s a huge win for us, basically on both fronts,” said Virgil Adams, Bibb County’s former attorney who is still handling the case for the Macon-Bibb County consolidated government.

The ruling reverses Lee’s order that would have required Secretary of State Brian Kemp not only to set the border, but to use a survey that Kemp had previously rejected as inaccurate, Adams said. Now, Kemp is still tasked with setting the line, but he isn’t required to make an essentially predetermined decision.

The other issue involves a hearing of which Bibb County didn’t receive notice, and in which it didn’t participate.

Bibb County filed an emergency motion the morning after the hearing, seeking to intervene, which Lee denied, Adams said.

“The (Supreme) Court, clearly, today stated unequivocally that was an abuse of discretion by the (trial) court in not allowing Bibb County to intervene in that hearing.”

The Supreme Court’s move Monday means that Bibb County must be a part of the border-setting process, Adams said.

It will be up to the secretary of state to set the line, and Bibb County will wait for direction from Kemp’s office to inform any further moves, Adams said.

Michael Bilderback, chairman of the Monroe County Commission, said his side of the case will await further developments too, but that the Supreme Court’s ruling makes it unclear what those might be.

“We don’t really have a next step, other than to see what Judge Lee does, since it’s been remanded back down to her court,” he said. “I honestly don’t know what direction she’s going to be able to go in, because on the one hand they say she has the ability to use mandamus in this situation to force (Kemp) to make a decision, but on the other hand they’re telling her that she erred in requiring him to use that particular survey” by Scarborough.

From Monday’s ruling, Bilderback said, justices appear to dislike burdening taxpayers with the cost of a new survey. But that leaves him wondering what basis can be used, if Kemp’s not required to use the existing study, he said.

“I don’t know which way you go with that,” Bilderback said. “It is puzzling.”

It’s been a full decade since a Monroe County grand jury said action needed to be taken to determine the border, Bilderback said. The Monroe-Bibb dispute has gone on since then.

In such battles, after a surveyor marks out a boundary line, there is an appeal process if one county challenges the results: The secretary of state determines “from the law and evidence the true boundary line.”

In 2009, Scarborough filed his survey and plat with the secretary of state. It put Monroe County into a bit of land now taxed by Bibb, including the parking lot of the Bass Pro Shops complex and some nearby neighborhoods. Bibb County challenged those results. Adams argued in part that the initial point for the boundary should be an area on the Ocmulgee River called Waller’s Ferry rather than an area called Turrentine’s Ferry, as Scarborough’s survey denoted.

An administrative law judge heard the challenge and recommended that Kemp approve the survey.

After reviewing the evidence and hearing arguments, Kemp rejected the survey, though, finding there was inconclusive evidence on the location of Waller’s or Turrentine’s Ferry, that the survey would alter Crawford County’s boundary line as well, and that the survey would leave an “island” of Bibb County entirely surrounded by Monroe County. Kemp did not establish a definitive boundary line, though.

Monroe County later filed a petition for a “writ of mandamus,” which is issued to force a government officer to perform mandatory duties. Lee issued the writ, compelling Kemp to establish a definitive border. Lee also required Kemp to adopt Scarborough’s boundary line.

Bibb County had not been notified of Monroe County’s petition for the court order, but one day after the hearing on the petition, it filed an emergency motion to intervene in the case, which Lee denied.

Bibb County and the secretary of state appealed to the state Supreme Court.

In it, the high court said that while Kemp may be required by state law to resolve the dispute by deciding where the boundary lies, he is not required to pick a particular boundary.

“The courts will not direct a public official by mandamus as to what manner he will exercise the discretion vested in him, but they may compel the officer to exercise his discretion,” the ruling says. “It is not proper either to prescribe how that action is taken or to preordain its result.

“In this instance, the secretary has a mandatory duty to consider the relevant law and evidence and to render some decision identifying the boundary line.” But “the trial court erred in dictating the result of the review process by directing the secretary to record the Scarborough survey.”

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