Justices question procedure, merit of Camden’s spaceport case

The Georgia Supreme Court heard oral arguments Thursday in a case that could help decide not only the future of Spaceport Camden but also the future of citizen-driven referenda and the meaning of “home rule” in Georgia.

The case pits Camden County against its own Probate Court Judge Robert C. Sweatt, Jr., who vetted a petition-driven referendum in March that repealed the county’s decision to buy land for its proposed commercial spaceport.

The referendum passed by a nearly 3-1 margin, with a 17% of active voters turning out to cast a ballot in the single-issue special election.  The county then appealed the election’s validity to the Georgia Supreme Court.

Spaceport Camden promoters, including the county commission and county administrator, praise it as an economic boon for the area that will attract jobs and tourism from the burgeoning space industry. The county has spent more than 7 years and $11 million on its spaceport plan. Opponents highlight the risk of flying rockets over nearby Cumberland Island, a national seashore beloved by visitors and residents alike.

First up: Camden

Camden claims the March 8 referendum was invalid “because the county Home Rule provision in the Constitution did not authorize it,” attorney Pearson Cunningham of Atlanta-based Hall Booth Smith told the nine justices Thursday at the court’s special session in Augusta. “The County home rule provision in the Constitution authorizes a referendum to amend or appeal to very specific classes of local laws. The first are the local acts passed by the General Assembly.”

Before Thompson could get to the second class of laws, the justices began quizzing him on the steps the county took to challenge the vote, raising the possibility they would rule on procedure rather than merit.

In its initial pleadings, the county requested either a writ of prohibition or a writ of mandamus, procedures to force a government actor to stop or start doing something. With the referendum now over, the justices questioned what these writs could force the judge to do.

“What is it that you want the writ of prohibition to prohibit the judge from doing?” asked Presiding Justice Nels Peterson. “Hasn’t the judge already done the thing that you wanted the writ of prohibition to prohibit him from doing?”

The same principle applies to the request for a writ of mandamus, said Judge Carla Wong McMillian.

“What authority do you have for the idea that a probate judge can do anything to unwind an election once it’s occurred?” Peterson asked. When Cunningham replied “I don’t think we’re trying to unwind the election,” Peterson shot back, “Of course you are.”

The justices also questioned whether the right defendants had been named, suggesting that the Secretary of State and the Camden County voters may have been appropriate defendants.

More than 15 of Cunningham’s allotted 20 minutes elapsed before the justices quizzed him on the merits of the case. At issue is which actions of the county are subject to a petition-driven referendum. The county reads the constitution to mean that repeals can take place by referendum on two types of actions: so-called “local acts” passed by the General Assembly or an amendment to a local act the county commission makes by resolution, ordinance or regulation.

The county supported its position with a parallel decision in the 1998 case of Kemp v. City of Claxton, in which that city passed a resolution to close certain rail crossings. Local business owners sought a petition and referendum to reverse the decision. The Georgia Supreme Court ruled against them.

While the situation is similar to that of Camden, it’s not the same. Camden is a county and Claxton is a city, Peterson pointed out.

“Kemp decided with a meaning of a statute,” he said. “This is a different legal provision. You don’t have to overrule Kemp to go a different direction in this case.”

Next: Judge Sweatt and intervenors

With Cunningham’s time up, Attorney Philip Thompson of Savannah’s Ellis Painter firm gave the first 15 minutes of oral arguments for the appellees.

“The Georgia constitution plainly gives the county electorates the right to initiate the repeal of county resolutions by filing a petition with the probate court,” he began.

As with Cunningham, the justices began their questions almost immediately, turning within a few minutes to the Kemp decision.

“Kemp said you can’t do what you did if you’re a city,” Peterson said and Thompson agreed. “Under virtually identical language, can we rule for you without overruling Kemp? How can the same words mean A and simultaneously not A?

Thompson argued that the difference between a city, governed by statute and a county, governed by the constitution, was key.

“By focusing on this Court’s precedent establishing that constitutional interpretation is a bit of a different exercise than statutory interpretation,” he said.

Justice Andrew Pinson jumped in with a solution.

“Isn’t the answer that Kemp is addressing a different statute?” he said. “And yes, if we reached a conclusion that you interpret these same words a different way, those decisions are in serious tension. But Kemp is not binding, because it is interpreting a different provision. So we can deal with Kemp another day. You can read the tea leaves, but it’s a a different provision.”

Thompson ended by repeating that the plain language of the constitution favored the referendum.

“The proposition (is) that the Georgia constitution says what it says, again, the right to repeal a county ordinance is explicit. The obligation of the probate court judge to assess that validity is explicit. And the county wants the court to determine that the Constitution does not mean what it says.”

Attorney Kellye Moore appeared next, representing Judge Sweatt. She pointed to what she believed were procedural errors in the case, including the use of the writs of mandamus and prohibition. Moore emphasized that lower courts hadn’t rendered a decision based on the constitutional arguments in the current case.

“The remedy would have to be an appeal of the decision of the probate judge certifying the validity of the petition; there would have to be an appeal to the Superior Court,” she said.

Court watchers

Court spokeswoman Kathleen Joyner said the court decisions are typically issued in about six months.

Camden County Administrator and Spaceport Camden Project Lead Steve Howard attended the oral arguments in Augusta, sitting in the last row rather than in the row reserved for Camden County. After the proceedings, he declined to comment on them.

Howard is in salary negotiations with Citrus County, Florida, for the administrator position there. He declined to comment on those negotiations. A spokeswoman for Citrus County said, “The negotiating team hopes to have something to present to the full Board at their regular meeting on Oct. 18, 2022.”

Another row in the gallery was reserved for a group called “Protect Cumberland Island.” Among those seated there was Megan Desrosiers, the executive director of the nonprofit coastal advocacy group One Hundred Miles, which aided in the collection of signatures for the petition.

“After watching the justices question both sides and really just kind of fire in on both sides really quickly, I have confidence probably for the first time in this whole saga for the last eight years that finally there’s an authority that is looking out for the best interests of the voters of the people in Camden County and for the Constitution of the State of Georgia,” she said. “Now that we’ve gotten this decision out of Camden County, I have confidence after today that the right decision will be made.”

Based on the questioning, some onlookers believe that decision will be in favor of the voters.

“I heard from others it did not go well for Camden County and will likely be decided on the issues of mootness and standing, rather than the merits,” wrote attorney Clare Norins in an email. Norins is the Director of the First Amendment Clinic at the University of Georgia School of Law. She wrote a friend of the court brief in support of Intervenors James Goodman and Paul Harris but was unable to attend the oral arguments.

Even if the court were to rule in favor of the county, it’s unclear if the property purchase would proceed. Union Carbide, which owns the 4,000 acres where the launch facility is planned, indicated in July it no longer wants to sell to the county. Camden is suing Union Carbide to force the sale. Union Carbide has filed a motion to dismiss, citing not only the referendum but also the county’s failure to complete necessary documentation, an omission that can’t be remedied by the decision in the Supreme Court case. The county’s response is due by Nov. 1.