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County against its own Probate Court Judge Robert C. Sweatt, Jr., who vetted a petition-driven referendum in March that repealed the county’s decision to buy land for its proposed commercial spaceport.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 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.
FROM THE GEORGIA CONSTITUTION: HOME RULE FOR COUNTIES AND MUNICIPALITIES
Paragraph I. Home rule for counties. (a) The governing authority of each county shall have legislative power to adopt clearly reasonable ordinances, resolutions, or regulations relating to its property, affairs, and local government for which no provision has been made by general law and which is not inconsistent with this Constitution or any local law applicable thereto. Any such local law shall remain in force and effect until amended or repealed as provided in subparagraph (b). This, however, shall not restrict the authority of the General Assembly by general law to further define this power or to broaden, limit, or otherwise regulate the exercise thereof. The General Assembly shall not pass any local law to repeal, modify, or supersede any action taken by a county governing authority under this section except as authorized under subparagraph (c) hereof.
(b) Except as provided in subparagraph (c), a county may, as an incident of its home rule power, amend or repeal the local acts applicable to its governing authority by following either of the procedures hereinafter set forth:
(1) Such local acts may be amended or repealed by a resolution or ordinance duly adopted at two regular consecutive meetings of the county governing authority not less than seven nor more than 60 days apart. A notice containing a synopsis of the proposed amendment or repeal shall be published in the official county organ once a week for three weeks within a period of 60 days immediately preceding its final adoption. Such notice shall state that a copy of the proposed amendment or repeal is on file in the office of the clerk of the superior court of the county for the purpose of examination and inspection by the public. The clerk of the superior court shall furnish anyone, upon written request, a copy of the proposed amendment or repeal. No amendment or repeal hereunder shall be valid to change or repeal an amendment adopted pursuant to a referendum as provided in (2) of this subparagraph or to change or repeal a local act of the General Assembly ratified in a referendum by the electors of such county unless at least 12 months have elapsed after such referendum. No amendment hereunder shall be valid if inconsistent with any provision of this Constitution or if provision has been made therefor by general law.
(2) Amendments to or repeals of such local acts or ordinances, resolutions, or regulations adopted pursuant to subparagraph (a) hereof may be initiated by a petition filed with the judge of the probate court of the county containing, in cases of counties with a population of 5,000 or less, the signatures of at least 25 percent of the electors registered to vote in the last general election; in cases of counties with a population of more than 5,000 but not more than 50,000, at least 20 percent of the electors registered to vote in the last general election; and, in cases of a county with a population of more than 50,000, at least 10 percent of the electors registered to vote in the last general election, which petition shall specifically set forth the exact language of the proposed amendment or repeal. The judge of the probate court shall determine the validity of such petition within 60 days of its being filed with the judge of the probate court. In the event the judge of the probate court determines that such petition is valid, it shall be his duty to issue the call for an election for the purpose of submitting such amendment or repeal to the registered electors of the county for their approval or rejection. Such call shall be issued not less than ten nor more than 60 days after the date of the filing of the petition. He shall set the date of such election for a day not less than 60 nor more than 90 days after the date of such filing. The judge of the probate court shall cause a notice of the date of said election to be published in the official organ of the county once a week for three weeks immediately preceding such date. Said notice shall also contain a synopsis of the proposed amendment or repeal and shall state that a copy thereof is on file in the office of the judge of the probate court of the county for the purpose of examination and inspection by the public. The judge of the probate court shall furnish anyone, upon written request, a copy of the proposed amendment or repeal. If more than one-half of the votes cast on such question are for approval of the amendment or repeal, it shall become of full force and effect; otherwise, it shall be void and of no force and effect. The expense of such election shall be borne by the county, and it shall be the duty of the judge of the probate court to hold and conduct such election. Such election shall be held under the same laws and rules and regulations as govern special elections, except as otherwise provided herein. It shall be the duty of the judge of the probate court to canvass the returns and declare and certify the result of the election. It shall be his further duty to certify the result thereof to the Secretary of State in accordance with the provisions of subparagraph (g) of this Paragraph. A referendum on any such amendment or repeal shall not be held more often than once each year. No amendment hereunder shall be valid if inconsistent with any provision of this Constitution or if provision has been made therefor by general law.
In the event that the judge of the probate court determines that such petition was not valid, he shall cause to be published in explicit detail the reasons why such petition is not valid; provided, however, that, in any proceeding in which the validity of the petition is at issue, the tribunal considering such issue shall not be limited by the reasons assigned. Such publication shall be in the official organ of the county in the week immediately following the date on which such petition is declared to be not valid.