303 Ga. 449 FINAL COPY
S17A1878, S17X1879. CITY OF UNION POINT v. GREENE COUNTY et al.; and vice versa.
BOGGS, Justice.
This dispute between Greene County and the City of Union Point arises
out of the Service Delivery Strategy Act (“SDS Act”), OCGA § 36-70-20 et
seq., and calls into question the constitutionality of the evidentiary hearing
process provided by OCGA § 36-70-25.1 (d) (2). In its order entered at the end
of the hearing process, the trial court found that portion of the statute
unconstitutional, and further found that sovereign immunity barred all claims
and remedies except those provided for in the SDS Act itself. We affirm the trial
court’s ruling on sovereign immunity, but reverse its finding on the
constitutionality of OCGA § 36-70-25.1 (d) (2). We further find that the trial
court exceeded the bounds of the statutory process by going beyond the
remedies provided to order particular actions by the parties and by considering
matters not submitted to mediation. We therefore affirm in part, reverse in part, vacate the trial court’s order in part, and remand for entry of an appropriate
order.
The SDS Act was enacted in 1997.1 The General Assembly declared that
the Act is intended
to provide a flexible framework within which local governments in each county can develop a service delivery system that is both efficient and responsive to citizens in their county. The General Assembly recognizes that the unique characteristics of each county throughout the state preclude a mandated legislative outcome for the delivery of services in every county. The process provided by this article is intended to minimize inefficiencies resulting from duplication of services and competition between local governments and to provide a mechanism to resolve disputes over local government service delivery, funding equity, and land use. The local government service delivery process should result in the minimization of noncompatible municipal and county land use plans and in a simple, concise agreement describing which local governments will provide which service in specified areas within a county and how provision of such services will be funded.
OCGA § 36-70-20. The SDS Act prescribes a process for developing a local
government service agreement, OCGA § 36-70-21, its required components,
OCGA § 36-70-23, and criteria for its development, OCGA § 36-70-24.
The SDS Act was amended in 2000 to add OCGA § 36-70-25.1.2 This
1 See Ga. L. 1997, p. 1567, § 1. 2 See Ga. L. 2000, p. 1439, § 1.
2 statute provides a “mechanism to resolve disputes” between a county and its
municipalities, beginning with “some form of alternative dispute resolution”
under subsection (c), “the imposition of sanctions” by the limitation of funding
for “any local government or authority which is not included in a department
verified strategy or for any project which is inconsistent with such strategy”
pursuant to OCGA § 36-70-27, and mandatory mediation under subsection (d)
(1). If all these provisions fail to resolve a dispute, subsection (d) (2) provides:
If no service delivery strategy has been submitted for verification to the Department of Community Affairs at the conclusion of the mediation, any aggrieved party may petition the superior court and seek resolution of the items remaining in dispute. The visiting or senior judge shall conduct an evidentiary hearing or hearings as such judge deems necessary and render a decision with regard to the disputed items. In rendering the decision, the judge shall consider the required elements of a service delivery strategy with a goal of achieving the intent of this article as specified in Code Section 36-70-20. It shall be in the discretion of the judge to hold the sanctions specified in Code Section 36-70-27 against one or more of the parties in abeyance pending the disposition of the action. The court is authorized to utilize its contempt powers to obtain compliance with its decision relating to the disputed items under review. The judge shall be authorized to impose mediation costs and court costs against any party upon a finding of bad faith.
In October 1999, pursuant to the SDS Act, Greene County and five
municipalities within the County, including the City of Union Point, entered into
various intergovernmental agreements governing local services. These 3 agreements were incorporated into a service delivery strategy and filed with the
Georgia Department of Community Affairs.3 The service delivery strategy was
amended from time to time, most substantially in 2004.
The litigation before us began on October 21, 2015, when the City of
Union Point filed a “Complaint for TRO, Interlocutory and Permanent
Injunction,” alleging that Greene County had unilaterally discontinued police
and fire dispatch and communications services to the City’s police and fire
departments and had ignored attempts to resolve the issue. The trial court
entered a temporary restraining order directing the County to resume dispatch
and communications services. A month later, in response to a motion to dismiss,
the City amended its complaint to seek a declaratory judgment and mediation
under OCGA §§ 36-70-28 (c)4 and 36-70-25.1 (d). After the County filed a
3 The SDS Act itself, the parties, and the forms used to file the service delivery strategy with the Department of Community Affairs refer to the underlying agreements between the parties interchangeably as “service delivery agreements,” “service delivery arrangements,” “intergovernmental contracts,” and “intergovernmental agreements.” Each such agreement contained in the record here is styled “Intergovernmental Agreement.” 4 In the event that a county or an affected municipality located within the county refuses to review and revise, if necessary, a strategy in accordance with paragraphs (2) and (3) of subsection (b) of this Code section, then any of the parties may use the alternative dispute resolution and appeal procedures set forth in subsection (d) of Code Section 36-70-25.1.
4 second motion to dismiss on the grounds of sovereign immunity, standing, and
untimely request for mediation, the City again amended its complaint to assert
claims for breach of contract, mandamus, specific performance, injunction and
attorney fees, and attached a certified copy of the service delivery agreements
on file with the Georgia Department of Community Affairs.
On January 12, 2016, the trial court entered a consent order assigning the
dispute to mediation pursuant to OCGA § 36-70-25.1 (d) (1) (A), staying all
other proceedings in the case, directing the County to continue to provide
dispatch and communications services until the end of the mediation period, and
adding the City of Greensboro as a necessary party to the mediation under
OCGA § 36-70-25.1 (d) (1) (B). The dispute went to mediation, where the
parties reached agreement “in principle” on a number of issues, but were unable
to resolve the dispute regarding dispatch and communications services. At the
petition of the City, as provided for in the consent order, the trial court
proceeded to an evidentiary hearing under OCGA § 36-70-25.1 (d) (2).
After hearing two days of testimony and argument and receiving
approximately 1,750 pages of documentary evidence, the trial court issued a 46-
page “Final Order.” In that order, the trial court concluded that OCGA § 36-70-
5 25.1 (d) (2) is unconstitutional and void because it violates the separation of
powers clause of the Georgia Constitution.5 While finding that the rest of the
parties’ contentions therefore were moot, the trial court “for purposes of judicial
economy” nevertheless ruled on those issues. It found that sovereign immunity
barred “the claims not grounded in the relief provided under the SDS Act”
(emphasis in original), ruled with respect to pending motions and other
procedural issues, and then ruled on the parties’ numerous claims regarding the
funding of public services under the SDS Act.
In its order, the trial court made findings of fact regarding various services
provided by the County, the source of funding for those services, and whether
those services were provided to residents of the municipalities in the County or
to residents of unincorporated areas, or both. It then applied the relevant
statutory provisions to the facts and determined the legally permissible sources
of funding for those services. It found that certain services were in compliance
with the SDS Act, while others were not.6 It also found that the County had
5 “The legislative, judicial, and executive powers shall forever remain separate and distinct; and no person discharging the duties of one shall at the same time exercise the functions of either of the others except as herein provided.” Ga. Const. 1983, Art. I, Sec. II, Par. III. 6 The trial court found that “Greene County’s use of countywide funds for Greene County’s roads program is in compliance with the SDS Act.”
6 breached certain terms of the underlying agreements. While concluding in some
instances that the parties must enter into a joint agreement for service and
funding, the court also gave specific direction with regard to funding, requiring
that certain services be funded from particular sources, and enjoining the
funding of those services from other sources, as well as enjoining the collection
of fees until an agreement is reached, and directing that certain fees be refunded.
The City appeals from the trial court’s finding that OCGA § 36-70-25.1
(d) (2) is unconstitutional, its finding that sovereign immunity barred most of the
City’s claims, and its specific findings with respect to funding for road and
bridge maintenance. The County cross-appeals, contending that sovereign
immunity barred the trial court’s grant of injunctive relief, and further
contending that the trial court erred in its specific findings with respect to the
funding and delivery of emergency dispatch services, recreation and library
services, and the refund of certain grant matching funds.7
1. We first consider the trial court’s ruling on sovereign immunity. The
Georgia Constitution provides:
7 Lowndes County, the City of Valdosta, the City of Greensboro, the Georgia Municipal Association with the Mayor and Aldermen of the City of Savannah, and the Attorney General have filed briefs amici curiae. The Court appreciates their helpful and informative briefing.
7 Except as specifically provided in this Paragraph, sovereign immunity extends to the state and all of its departments and agencies. The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.
Ga. Const. Art. I, Sec. II, Par. IX (e). This Court has repeatedly ruled on the
scope of this provision. “The plain and unambiguous text of the 1991
constitutional amendment shows that only the General Assembly has the
authority to waive the State’s sovereign immunity.” (Citations omitted.) Ga.
Dept. of Natural Resources v. Center for a Sustainable Coast, 294 Ga. 593, 599
(2) (755 SE2d 184) (2014).
In addressing this issue, we recognize that implied waivers of governmental immunity should not be favored, but also that this does not mean that the Legislature must use specific “magic words” such as “sovereign immunity is hereby waived” in order to create a specific statutory waiver of sovereign immunity.
(Citations and punctuation omitted.) Ga. Dept. of Corrections v. Couch, 295 Ga.
469, 473-474 (2) (759 SE2d 804) (2014).
(a) The only potential parties to an action under OCGA § 36-70-25.1 are
counties and affected municipalities. “Indeed, in order for the statute to have any
meaning at all here, it can only be interpreted as creating a waiver of sovereign
immunity.” Colon v. Fulton County, 294 Ga. 93, 96 (1) (751 SE2d 307) (2013),
8 overruled on other grounds, Rivera v. Washington, 298 Ga. 770, 778 (784 SE2d
775) (2016). “Because the General Assembly is presumed to intend something
by passage of an act, we must construe its provisions so as not to render it
meaningless.” (Citations and punctuation omitted.) Id.
But here, as the trial court correctly held, sovereign immunity is waived
only to the extent of the statute, which extends no further than the remedies
specifically authorized by the Act. Therefore, as discussed in Division 2, below,
the trial court may not exceed the scope of OCGA § 36-70-25.1 (d) (2) by
granting relief not provided therein for claims brought under the SDS Act. We
therefore affirm the trial court’s ruling that sovereign immunity does not bar
claims under OCGA § 36-70-25.1 (d) (2).
(b) Not all of the claims in the case below, however, arise under the SDS
Act. More specifically, the City asserted claims for breaches of existing
intergovernmental agreements (“IGAs”) with the County, seeking injunctive
relief to compel the County to abide by the IGAs. The SDS Act, however, does
not generally address the enforcement of existing IGAs, even if they originally
were made or are subject to revision under the terms of the Act. It provides no
remedy to a county or city aggrieved by the breach of an IGA; the only
9 provision of the Act that affects the enforcement of an existing agreement is the
provision of OCGA § 36-70-27 (a) (1) that state funds cannot be used for a
project inconsistent with a “department verified strategy” made under the Act.
There is no reason to conclude, therefore, that the SDS Act supersedes other
remedies available to a county or city for breach of an IGA.
Apart from the SDS Act, violations of IGAs generally may be addressed
by the courts as breaches of contract. See Chattanooga-Hamilton County Hosp.
Auth. v. Walker County, 702 Fed. Appx. 854, 856 (II) (B) (11th Cir. 2017). In
such cases, the General Assembly has provided an express constitutional waiver
of sovereign immunity: “The state’s defense of sovereign immunity is hereby
waived as to any action ex contractu for the breach of any written contract now
existing or hereafter entered into by the state or its departments and agencies.”
Ga. Const. Art. I, Sec. II, Par. IX (c). See State of Ga. Dept. of Corrections v.
Developers Surety and Indem. Co., 295 Ga. 741, 744 (763 SE2d 868) (2014);
see also City of Waycross v. Pierce County Bd. of Commrs., 300 Ga. 109, 113
(1) (793 SE2d 389) (2016); Upper Oconee Basin Water Auth. v. Jackson
County, 305 Ga. App. 409, 412 (1) (699 SE2d 605) (2010).
“Restitution, damages and specific performance are the three remedies for
10 breach of contract. [Cit.]” PMS Constr. Co. v. DeKalb County, 243 Ga. 870, 872
(2) (257 SE2d 285) (1979). Accordingly, to the extent that the City sought
injunctive relief in this case that is directed to the enforcement of existing IGAs
and would amount to a remedy of specific performance, such relief is within the
scope of the constitutional waiver of sovereign immunity for breach of contract
and may be considered on remand. To the extent, however, that the injunctive
relief sought by the City would do more than command the specific performance
of existing IGAs, it is not an appropriate remedy for breach of contract and does
not fall within the Constitution’s waiver of sovereign immunity. See Sustainable
Coast, supra, 294 Ga. at 596 (2) (injunctive relief); Olvera v. Univ. System of
Ga. Bd. of Regents, 298 Ga. 425, 427 (782 SE2d 436) (2016) (declaratory
judgment).
2. Next, we address the trial court’s holding that the dispute resolution
process prescribed by OCGA § 36-70-25.1 (d) (2) is unconstitutional. In so
doing, we are mindful that “the General Assembly is presumed to enact laws
with full knowledge of the condition of the law and with reference to it, and the
courts will not presume that the legislature intended to enact an unconstitutional
law.” (Citation and punctuation omitted.) Ga. State Licensing Bd. for
11 Residential and General Contractors v. Allen, 286 Ga. 811, 817 (2) (692 SE2d
343) (2010). And
[i]n analyzing whether the statute violates the separation of powers doctrine of our state constitution we note at the outset the presumption that acts of the legislature are constitutional, and our duty to construe an act as constitutional where possible. We also note that while our state constitution’s doctrine of separation of powers declares that the three branches of government shall be separate and distinct, the doctrine does not mean a separation in all respects.
(Citations and footnotes omitted.) Ga. Dept. of Human Resources v. Word, 265
Ga. 461, 463 (1) (458 SE2d 110) (1995).
In its order, the trial court relied entirely upon this Court’s decision in
Turner County v. City of Ashburn, 293 Ga. 739 (749 SE2d 685) (2013), holding
that the dispute resolution process included in the Local Option Sales Tax
(“LOST”) Act, former OCGA § 48-8-89 (d) (4), violated the separation of
powers doctrine by authorizing “judicial resolution of the allocation and
distribution of tax proceeds, an exclusively legislative power.” Id. at 745. The
prescribed process for resolution of a local option sales tax dispute under former
OCGA § 48-8-89 (d) provided for a negotiated allocation of LOST proceeds
between a county and its qualified municipalities, followed by nonbinding
arbitration. If that process failed to produce an agreement, any party could
12 petition the superior court for a resolution under former OCGA § 48-8-89 (d)
(4). To this point, as the trial court observed in its order, the two statutory
procedures are remarkably similar. Once the superior court is reached, however,
the process in the statutory provision before us is significantly different.
The former statute provided that, if the parties could not agree on the
distribution of sales tax proceeds, they were to “submit their written best and
final offer specifying the distribution of the tax proceeds” to the superior court.
The superior court would then “render a decision based on the requirements and
intent” of the statute and certain non-exclusive criteria listed therein. The court
would then prepare a “distribution certificate,” a document ordinarily created by
agreement of the parties receiving the tax proceeds, and file that certificate with
the Commissioner of Revenue.8 Former OCGA § 48-8-89 (d) (4) (D).
In analyzing this process, this Court observed that the authority to impose
taxation is a legislative function of the state or local government, and that the
decision to renew an existing tax or allow it to expire is a purely legislative issue
8 Former OCGA § 48-8-89 (b) provided that the distribution certificate “shall be executed in behalf of each respective governing authority . . . shall encompass all respective political subdivisions, shall be filed with the commissioner, and shall specify by percentage that portion of the remaining proceeds of the tax available for distribution which each such political subdivision shall receive. . . .”
13 left solely to the elected legislative body’s discretion. Turner, supra, 293 Ga. at
743. Moreover, the question of distribution of the proceeds of a tax is also
exclusively a legislative decision and cannot be decided by the judiciary unless
there is a manifest abuse of power. Id. at 744. Finally, we explained:
It follows that issues relating to how tax revenues should be
allocated are also left solely to legislative discretion and are not
matters for determination by the courts so long as there is no
manifest abuse of power or failure to abide by constitutional or
legislative directives regarding the purposes for which the revenues
may be spent.
Id. at 745-746.
Applying these principles, this Court concluded that former OCGA § 48-
8-89 (d) (4) authorized the superior court to go beyond a factual determination
of matters in dispute and to allocate tax proceeds based upon its own weighing
of an indefinite number of factors, substituting its judgment for that of the
parties. Id. at 747. The decision addressed in Turner is therefore a legislative
one, beyond the scope of judicial power, and “effectively grants judicial
resolution of the allocation and distribution of tax proceeds, a process that we
14 deem to be a clear violation of the separation of powers doctrine.” Id. at 749.
In contrast, the referral to the superior court under OCGA § 36-70-25.1
(d) (2) contains important distinctions from the one disapproved in Turner. After
an evidentiary hearing, the trial court renders a decision “with regard to the
disputed items,” and “shall consider the required elements of a service delivery
strategy with a goal of achieving the intent of this article as specified in Code
Section 36-70-20.” The latter Code section is a general statement of legislative
intent that the process prescribed by the SDS Act as a whole “should result . .
. in a simple, concise agreement describing which local government will provide
which service in specified areas within a county and how provision of such
services will be funded.” OCGA § 36-70-25.1 does not authorize the trial court
to implement, in its own discretion, these broad, aspirational goals. Rather, the
General Assembly provided criteria which “shall be met” in developing the
service delivery strategy, including those specifically prescribed in OCGA § 36-
70-24 (3) (A) with respect to the matters in dispute here. That subsection
provides that a service delivery strategy
shall ensure that the cost of any service which a county provides primarily for the benefit of the unincorporated area of the county shall be borne by the unincorporated area residents, individuals, and property owners who receive the service. Further, when the county
15 and one or more municipalities jointly fund a county-wide service, the county share of such funding shall be borne by the unincorporated residents, individuals, and property owners that receive the service.
These criteria are limited and specific, unlike the non-exclusive and open-ended
criteria disapproved in Turner. And after the trial court makes its findings, in
direct contrast to the procedure held unconstitutional in Turner, the court is not
instructed to craft an agreement or to file an agreement with any department of
the state. Instead, the local government entities continue their negotiation and
preparation of a service delivery strategy and related agreements. The trial
court’s power is limited to the abeyance or allowance of sanctions, its contempt
authority, or the imposition of costs upon a finding of bad faith. OCGA § 36-70-
25.1 (d) (2).
As Turner acknowledges:
We recognize the basic principle embodied in the separation of powers doctrine that the legislature cannot delegate legislative power to the courts. This does not mean, however, that the legislature is forbidden from conferring power on the courts to ascertain whether the statutory requirements . . . have been satisfied in particular cases. Delegation to a court of power to ascertain a state of facts under which a statute is applicable is not an unlawful delegation of legislative power to the judiciary.
(Punctuation omitted.) Harrell v. Courson, 234 Ga. 350, 352 (216 SE2d 105)
16 (1975), cited in Turner, supra, 293 Ga. at 745. OCGA § 36-70-25.1 does not
authorize the court to substitute its judgment for that of the county and
municipalities with regard to the creation of a service delivery agreement, nor
to adopt one party’s interpretation to the exclusion of another, and enter that in
the form of a final agreement. It therefore does not usurp legislative or taxing
functions, as forbidden in Turner. The court is directed only to receive the
parties’ evidence and resolve disputed issues of fact regarding the services
provided and the funding of such services, and to determine whether such
services and funding comply with the provisions of the law. This process does
not amount to an unconstitutional violation of the separation of powers doctrine.
Moreover, OCGA § 36-70-25.1 (d) (2), unlike the provision disapproved
in Turner, does not permit the trial court to direct that the parties enter into a
particular agreement. It therefore does not invade the province of the legislative
branch by imposing a tax or allocating the proceeds of that tax, as forbidden by
Turner. The responsibility remains with the parties to enter into and implement
a service agreement that complies with the law. See OCGA § 36-70-25.1 (f).
None of the trial court’s actions go beyond those powers generally inherent in
the judiciary. See Ga. Const. 1983, Art. VI, Sec. I, Par. IV (“Each court may
17 exercise such powers as necessary in aid of its jurisdiction or to protect or
effectuate its judgments[.]”); Cobb County v. Wilson, 259 Ga. 685, 686 (2) (b)
(386 SE2d 128) (1989) (trial court authorized to use contempt powers to compel
county to comply with zoning code).
However, as the City concedes, the trial court is not authorized to grant
relief pursuant to OCGA § 36-70-25.1 beyond the scope of the remedies made
available in that Code section. In its order, the trial court enjoined the County
from collecting and expending revenues derived from special tax districts with
respect to fire protection, library, and recreation services; enjoined the County
from funding animal control, building inspection, and planning and zoning
services with county revenues from the incorporated areas of the county;
permanently enjoined the County from imposing fees on the City of Union Point
for emergency dispatch services; and ordered the County to refund certain taxes
collected if no agreement was reached. In so doing, the trial court improperly
directed or enjoined particular funding for services; this exceeded the scope of
the remedies provided for by the SDS Act. But the fact that the trial court
exceeded the limited boundaries of the statutory process does not render the
statute itself unconstitutional. Rather, those portions of the trial court’s order
18 that grant relief exceeding the authority granted under the statute must be
vacated, and the case returned to the trial court for further proceedings in
conformity with this opinion.
3. The parties have appealed and cross-appealed from certain specific
findings entered by the trial court.
(a) The City appeals from the trial court’s findings with regard to the
funding of road and bridge maintenance. But OCGA § 36-70-25.1 (d) (2)
provides that “any aggrieved party may petition the superior court and seek
resolution of the items remaining in dispute” after the parties fail to agree to a
service delivery strategy in the mandatory mediation provided by subsection (d)
(1). A party is not authorized by the statute to introduce items that were never
in dispute at the mediation into its petition to superior court. As the County
observes, the mediator’s report contains no mention of road and bridge
maintenance, nor did the parties expressly note that issue in the consent order
to mediation. The judicial resolution of this issue was not authorized under the
statute until the parties have complied with the two-step process prescribed by
the statute and first submitted the question of road and bridge maintenance
funding to mediation. This portion of the trial court’s order therefore exceeded
19 the scope of OCGA § 36-70-25.1 (d) (2), and it must be reversed.
(b) In its cross-appeal, the County contends the trial court erred in
permanently enjoining the County from imposing fees on the City for
emergency dispatch services and in mandating the use of a particular technology
for delivering those services. As noted above, we agree that the trial court’s
remedies in the process prescribed by OCGA § 36-70-25.1 (d) (2) are limited to
those authorized therein. With respect to its decision under the Act, therefore,
after making findings of fact and applying the statutory criteria to the facts as
authorized by the statute, the trial court could employ only those remedies
provided for by the statute. It had no authority to issue a permanent injunction
as to the funding or the method of providing those services. Moreover, the trial
court was not authorized to fashion a remedy of its own for the dispute between
the County and City regarding the funding of these services; it could only find
the relevant facts and apply the law to those facts. It is then authorized to use
only the remedies enumerated in OCGA § 36-70-25.1 (d) (2) “to obtain
compliance” from the parties in reaching a service delivery agreement: hold
statutory sanctions in abeyance (or allow them), employ its contempt powers,
and assess costs against a party acting in bad faith. We therefore reverse the trial
20 court’s order with respect to emergency dispatch services, and we remand for
entry of an order consistent with this opinion.9
(c) The County also contends in its cross-appeal that the trial court erred
in its decision with regard to the funding of recreation and library services. In
its order, the trial court found that the County had unilaterally cancelled the
previously existing agreement with respect to those services. It further found
that the County by resolution created new special districts for those services,
“coterminous with the geographic boundary of Greene County, Georgia,”
authorized the County to levy taxes within that district, and did levy such taxes
upon county residents, including those within municipalities. After first noting
that the parties had failed to enter “a written agreement” with respect to these
services, the trial court concluded that the County breached the terms of the
current service delivery strategy agreement, and that its unilateral creation of
taxing districts was “not in compliance with the SDS Act. OCGA § 36-70-24
(3).” It then directed that, until the parties officially adopt a new agreement,
9 We note that, in reaching its decision on this question, the trial court relied in part on OCGA § 46-5-120 et seq., the “Georgia Emergency Telephone Number 9-1-1 Service Act of 1977.” While it cited this Act, however, the court’s order recites that its ruling was made under the provisions of OCGA § 36-70-25.1 (d) (2), and we review the order only with respect to that Code section and do not decide or rule upon any other claims that may exist upon remand, such as the breach of contract claims discussed in Division 1 (b), supra.
21 “recreation and library services have been and must remain jointly-funded
services.” It further directed that the County fund its share of the services
“through formation of a special service district consisting of only the
unincorporated area of the County.” Finally, it declared that “[t]he County may
not subsidize its portion of the cost for such services with any tax, fee or
assessment levied in any city.”
The County first complains that the trial court exceeded its authority under
the Act by finding it in breach of contract and by imposing declaratory and
injunctive relief. As we have noted above, the trial court was not authorized to
impose a remedy not provided by OCGA § 36-70-25.1 (d) (2) for claims
brought under the Act. It had no authority under the Act to fashion a different
remedy or enjoin the parties as to the funding or the method of provision of
those services.10
The County also complains that the parties agreed in mediation to the
changes in recreation and library funding, as memorialized in the mediator’s
report, and that its creation of the special districts and certain actions taken by
the parties to alter the existing funding mechanisms were “steps consistent with
10 This does not, however, foreclose other remedies upon remand, as discussed in Division 1 (b), above.
22 effectuating that agreement following mediation.” Although the parties reached
a specific and detailed agreement in mediation with regard to these services, the
trial court was correct in concluding that an agreement was never reduced to a
service delivery strategy or approved under OCGA § 36-70-25. Nevertheless,
in the dispute resolution process provided by OCGA § 36-70-25.1 (d) (2), the
trial court is limited to the actions and remedies outlined in that Code section,
and it was not authorized to adopt any agreement made “in principle” or
partially performed by the parties outside the framework of the statute, as that
would again run afoul of the limitations described in Turner, as noted above.
We therefore reverse the trial court’s order with respect to recreation and
library services, and we remand for further proceedings consistent with this
opinion.
Judgments affirmed in part, reversed in part, and vacated in part and cases
remanded with direction. All the Justices concur, except Melton, P. J., Benham
and Hunstein, JJ., who concur in part and dissent in part.
PETERSON, Justice, concurring.
I join the majority’s conclusion in Division 2 that the Service Delivery
23 Strategy Act (the “Act”) does not violate the separation of powers doctrine. I
write separately to observe that the precise source of that doctrine as applied to
local governments is less than entirely clear.
As both the majority and dissent discuss, this Court has previously
considered a separation of powers challenge similar to the one at issue here —
where a statute provided for a judicial resolution of a dispute between a county
government and a municipality. See Turner County v. City of Ashburn, 293 Ga.
739 (749 SE2d 685) (2013). In Turner County, this Court held that the dispute
resolution process included in the Local Option Sales Tax Act, former OCGA
§ 48-8-89 (d) (4), violated the “separation of powers doctrine of the Georgia
Constitution of 1983, Art. I, Sec. II, Par. III.” See Turner County, 293 Ga. at
742-749. But Turner County failed to acknowledge that we have long held that
Art. I, Sec. II, Par. III of the Georgia Constitution (the “Separation of Powers
Clause”) is inapplicable to counties and cities, and instead applies only to state
government.
In 1910, this Court interpreted the Separation of Powers Clause in the
1877 Constitution (identical to our current version except for minor punctuation
changes) and concluded that it relates to “[s]tate legislative, judicial, and
executive powers, and has no relation to municipal offices, created by the
24 legislature, in the discharge of strictly municipal functions.” Ford v. Mayor &
Council of Brunswick, 134 Ga. 820, 821 (68 SE 733) (1910). We have since
applied that holding to our current 1983 Constitution; in Building Authority of
Fulton County v. State, we cited Ford and again concluded that the Clause
applies only to the state, not to cities or counties. “Nor could it, since a county
commission is both the executive and legislative branch.” 253 Ga. 242, 247 (5)
(321 SE2d 97) (1984). Applying this precedent, we similarly rejected a claim
in 2003 that a city was controlling a municipal court’s daily activities in
violation of the Separation of Powers Clause. See Ward v. City of Cairo, 276
Ga. 391, 392-393 (1) (583 SE2d 821) (2003).
I do not know how to reconcile our holding in Turner County with our
holdings in Ford, Building Auth. of Fulton County, and Ward. And we did not
attempt to do so in Turner County; there, we cited only Ward, did not
acknowledge its holding regarding the scope of the Separation of Powers
Clause, and simply distinguished it as factually different. Turner County, 293
Ga. at 748.
Superior court judges exercise the state’s judicial power, and thus are
subject to the Separation of Powers Clause even under Ford and its progeny. But
if the Separation of Powers Clause applies only to the exercise of state powers,
25 it’s difficult to see how that Clause is implicated by allegations — like those
here — that a superior court judge is simultaneously exercising state judicial
power and local legislative power.
At the same time, it’s possible that separation-of-powers principles are
found in more than simply the Separation of Powers Clause; like the United
States Constitution (which lacks such a Clause), they may also arise from the
nature and structure of the Georgia Constitution. Whether they do, and how such
principles might apply to local governments (which have their own very
complicated article of the Georgia Constitution), is not a question we must
answer today. The majority opinion properly concludes that the power the Act
calls judges to exercise is merely judicial power, and thus does not contravene
the separation of powers. I agree.
I am authorized to state that Justice Blackwell joins in this concurrence.
BENHAM, Justice, concurring in part and dissenting in part.
I concur with Division 1 of the majority’s opinion addressing the
sovereign immunity issue raised in this appeal. I dissent, however, with respect
to Divisions 2 and 3, and would hold that OCGA § 36-70-25.1 is
unconstitutional because it improperly delegates purely legislative issues to the
trial court for judicial resolution.
26 The majority characterizes the issue posed in this case as one involving
the evidentiary hearing process set forth in OCGA § 36-70-25.1. What is, in my
opinion, unconstitutional is not the evidentiary hearing process set forth in the
statute but the judicial resolution it authorizes.
The majority opinion points to some obvious differences between the
judicial resolution statute involved in this case and the one included in the Local
Option Sales Tax (“LOST”) Act involved in Turner County v. City of Ashburn,
293 Ga. 739 (749 SE2d 685) (2013), which this Court deemed to be
unconstitutional. The judicial resolution statute formerly included in the LOST
Act (former OCGA § 48-8-89 (d) (4) (D)) provided that if the parties did not
arrive at an agreement for allocating LOST proceeds after engaging in
nonbinding arbitration, then any party could petition the superior court for a
resolution. Pursuant to this former statute, each party submitted to the trial court
its best and final offer, the trial court adopted the offer of one of the parties, and
the trial court then prepared a tax distribution certificate for the parties and
submitted it to the Commissioner of Revenue. Id. As noted by the majority,
this Court concluded that the judicial resolution procedure set forth in former
OCGA § 48-8-89 (d) (4) (D) improperly invaded the legislative function that is
reserved to the elected legislative body. Granted, the judicial resolution
27 procedure authorized by the Service Delivery Strategy Act (“SDS Act”) does
not authorize a trial court judge to choose between one or the other of the
parties’ proposed solutions to a dispute, and it does not authorize a judge to
submit to the Department of Community Affairs a service delivery strategy as
the parties are required to do pursuant to the terms of the Act. Practically
speaking, however, I see little difference between the authority of the former
LOST Act to pick a sales tax solution proposed by one of the parties and the
authority of the SDS Act to “render a decision” with respect to items remaining
in dispute between governmental entities who are required to reach an
agreement for a service delivery strategy.
OCGA § 36-70-25.1 authorizes a trial court judge “to utilize its contempt
powers to obtain compliance with its decision relating to the disputed items
under review.” In this case, those items include not simply whether the County
must provide emergency dispatch services under the communications system it
has developed to Union Point and at what cost; they also include animal control,
building inspection, planning and zoning, roads maintenance, recreation,
libraries, and fire protection. From the record, it appears the parties reached an
agreement at mediation as to the service delivery strategy regarding some of
these items but that agreement apparently fell apart. The issues in dispute
28 involve not simply a resolution of how Union Point should pay for these
services, but whether the County will enter into contracts to provide these
services to Union Point at all. These issues have not been resolved between the
parties, and no service delivery strategy has been agreed upon with respect to
these governmental services. What decision is the trial court authorized to
render, then, if not a decision as to, for example, “[a]n assignment of which
local government or authority, pursuant to the requirements of this article, will
provide each service, [etc.],” or the “source of funding for each service,” or “the
mechanisms to be utilized to facilitate the implementation of the services and
funding responsibilities” as set forth in OCGA § 36-70-23? These are
legislative and even political decisions that are outside the purview of the
judiciary to decide. As I see it, the judicial resolution clause of OCGA § 36-70-
25.1 runs afoul of the separation of powers doctrine espoused by the State’s
Constitution. See Ga. Const. of 1983, Art. I, Sec. II, Par. III.
I am authorized to state that Presiding Justice Melton and Justice Hunstein
join in this dissent.
29 Decided March 15, 2018 — Reconsideration
denied March 29, 2018.
OCGA § 36-70-25.1 (d) (2); constitutional question. Greene Superior
Court. Before Judge Flanders, Senior Judge.
Smith, Welch, Webb & White, Andrew (Andy) J. Welch III, Warren M.
Tillery, Brandon F. Palmer; Lambert, Reitman and Abney, M. Joseph Reitman,
Jr., for appellants.
Jarrard & Davis, Angela E. Davis, Christopher J. Hamilton, Kenneth P.
Robin, for appellees.
Larry W. Ramsey, Jr., Kelly J. L. Pridgen, G. Joseph Scheuer; Elliott,
Blackburn & Gooding, Walter G. Elliott II, James L. Elliott, William G. Elliott
II; Rusi C. Patel; Fleming & Nelson, Barry A. Fleming, F. Adam Nelson;
Coleman Talley, George T. Talley, Edward F. Preston, Timothy M. Tanner;
Christopher M. Carr, Attorney General, W. Wright Banks, Jr., Senior Assistant
Attorney General, Julie A. Jacobs, Sarah L. Crile, Assistant Attorneys General,
amici curiae.