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Next Week at the Court – November 9, 2009

November 6, 2009

The Supreme Court returns on Monday for its first day of oral argument in the month of November, and the first day of oral argument in nearly three weeks.  Monday and Tuesday mark the only oral argument days in Atlanta scheduled for this month.  The Court will sit in Dahlonega later this month for a special sitting.

On Monday at the 10:00 am sitting, the Court will consider one civil constitutional case:

S09A2016. Dekalb County v. Perdue et al.

This case relates to the incorporation of the City of Dunwoody and litigation against Governor Perdue and the state revenue commissioner.  Georgia law allows voters in 159 “special districts” (which match the state’s counties) to approve a one percent “Homestead Option and Sales Use Tax” (HOST) for the area, which replaces revenue lost due to “additional homestead exemptions.”  DeKalb County voters approved a HOST in 1997, along with additional exemptions on their property taxes paid for with the HOST revenue.  After an amendment to the HOST Act in 2007, the city of Dunwoody incorporated and became the only city in the state eligible for payment of HOST funds.  DeKalb County, represented by former Governor Roy Barnes, sued Governor Perdue, alleging that the amendments were unconstitutional and could not take effect without a referendum.  The trial court ruled against the County and it appealed, arguing that the trial court’s findings of fact were incorrect and that voters must approve changes in the HOST Act.  The state argued that the HOST Act imposes taxes for special tax districts, not counties, and does not create a non-uniform tax classification.

On Monday at the 2:00 pm sitting, the Court will consider one election contest and one civil constitutional question:

S09A2056. Davis v. Dunn

This case stems from a race for judge in Cobb County in November 2008.  Joan Davis lost to the incumbent, Tain Kell, by almost 25,000 votes.  Davis sued, alleginging counting errors, and the trial court dismissed her case, finding that Davis failed to “allege or prove a factual basis for her belief that a counting error occurred.”  The trial court also awarded Kell his attorneys’ fees.

Davis appealed, and as an elections case, the case went to the Supreme Court of Georgia.  Davis argues that the court made a number of errors, particularly that the trial court did not allow her to go through with the discovery process.  Kell argued that Davis had the burden to state the facts underlying her claims instead of just making a blanket statement.

S09A1935. East Georgia Land and Development Company, LLC v. Baker, Judge et al.

This case involves a county ordinance and the construction of a landfill in Newton County.  In 1997, a developer attempted to construct a landfill in the County.  The County responded by refusing to issue the necessary letter, claiming a 1985 zoning ordinance prohibited the construction of a landfill.  But the County could not locate the original of the new zoning ordinance that was adopted at the meeting.  The Probate Judge filed a petition with the superior court in the county under OCGA 24-8-1, which allows a court to establish copies of lost records as originals.  The trial court established the copy as a public record, and the developer appealed to the Supreme Court, claiming that the Lost Records Act violates the separation of powers by giving the judicial branch power to create legislation.

On Tuesday at the 10:00 am sitting, the Court will consider three criminal cases.  The Court will not hold a 2:00 pm sitting on Tuesday.

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