Video of oral arguments in LOST GA Supreme Court case

Here’s the Georgia Supreme Court’s own video of S13A0992 Turner County v. City of Ashburn et al. Walter Elliott Tuesday, June 4, 2013. It starts with the attorney for Turner County, Walter Elliott (who is also Lowndes County Attorney) apparently arguing that the courts shouldn’t intervene because only legislative bodies should decide on taxes. The judges didn’t seem to understand his argument.

One judge wondered how disputes would be settled then. Elliott said the local elected bodies would decide or the tax wouldn’t be levied. Another judge pointed out that legislative bodies could delegate administrative functions. Later the same judge asked how to distinguish this case from a child custody case as far as criteria and a court being able to decide. Elliott claimed that was a judicial function, but allocating tax dollars was not. The judges didn’t seem to be buying the city attorney’s argument later, either.

Funny how the Supreme Court of Georgia videos its sessions, but the Lowndes County Commission does not.

Here’s the subject of the case:

In this dispute between the governments of Turner County and three cities over how Local Option Sales Tax (LOST) proceeds should be distributed, the county is appealing a superior court ruling which picked the cities’ plan for distribution over the county’s.

GA Supreme Court’s written summary of these arguments ( Dave Miller, WALB, 3:48 PM EDT 4 June 2013):

ARGUMENTS: Attorneys for the county argue the superior court erred in denying the motion to dismiss the case because the “2010 amendment violates the separation of powers clause of the Georgia Constitution by conferring upon the judicial branch the legislative function of determining the benefit of the tax.”

The statute unconstitutionally “confers upon the judicial branch ‘the legislative discretion’ of allocating the proceeds of the tax between (a) the county for the benefit of all county property taxpayers and (b) the cities for the sole benefit of city property taxpayers,” the county’s attorneys argue in briefs. The statute is also unconstitutional because it: “empowers a city to cause a tax to be imposed beyond the territorial jurisdiction of the city in violation of the due process clauses” of the Constitution; “empowers a city to require a county to levy a tax for county purposes in contradiction of the board of commissioners’ exclusive jurisdiction over the levying of taxes for county purposes;” and “limits the power of the judiciary by restricting the decision of the assigned judge to adopting the best and final offer of one of the parties.”

Under the amended statute, neither the levy of the tax nor the allocation requires the approval of the board of commissioners of the county. Rather, the mayor and city council can cause the tax to be levied, and the judge has the power and authority to allocate the proceeds, the attorneys argue. They contend the judge erred by adopting the cities’ best and final offer because he based his order on a consultant’s report and failed to include mandatory findings of fact in the order. And the judge was wrong to preclude the presentation of evidence by witnesses, the attorneys argue, ordering the submission of consultant reports and limiting the hearing to argument by the parties’ attorneys.

Tommy Coleman Attorneys for the cities argue the trial judge made the correct ruling in upholding the constitutionality of the statute. The 2010 amended statute made the judge the arbitrator but does not vest in him the power to determine the distribution of the tax. “It specifies that the parties, through negotiation, arbitration and through their respective best and final offers, shall determine the distribution of the tax, and the arbitrator has nothing to do with that process,” they argue in briefs. “It is only where the parties submit best and final offers which reflect their disagreement that a judicial function comes into play.

The arbitrator had before him what essentially were two offers, each specifying how the proceeds were to be divided.” He then selected the offer which he determined best satisfied the criteria laid out in the statute. The county has misunderstood the nature of this tax, the cities argue. “It is not a county tax,” their attorneys argue. “It is a district tax, thus the power granted to the city is to initiate a district tax, not to compel a county to implement tax for county purposes which the county may thereafter not repeal.”

Before the legislature amended the statute, if parties did not agree, the tax lapsed. “It thus often developed that a party whose need for the tax might be less than the other parties’ imposed its will on the others by threatening to allow the tax to lapse, thus compelling the other parties to give in so as to preserve a much needed source of revenue,” the cities’ lawyers contend. “This was the evil which the 2010 amendment sought to cure.” The county now complains that this has violated “some right it somehow had to have control over LOST,” the attorneys argue. “It seems to believe that complete authority over taxation is vested in counties and that the General Assembly cannot divest them of this authority.” They also argue that the judge did provide findings of fact, as the statute requires, by determining “that the best and final offer of the plaintiffs the City of Ashburn, Georgia, the City of Rebecca, Georgia, and the City of Sycamore, Georgia more closely comports with the requirements and intent” of the amended statute than the county’s offer.

Finally, there is nothing in the record supporting the county’s contention that the judge precluded the production of evidence or limited the hearing to attorneys’ arguments. The county “made no motions, obtained no orders of the arbitrator, and made no effort whatsoever at the hearing to present witnesses or evidence,” the cities’ lawyers contend.

Attorneys for Appellant (County): Walter Elliott, James Elliott

Attorneys for Appellees (Cities): Franklin Coleman, III, R. Kelly Raulerson, James Davis