City of Mulberry Charter...plot twist
Constitutional or Unconstitutional? The story continues...
Although many of us in Gwinnett may not be personally affected by the new City of Mulberry Charter, we are following this through the legal system to determine if “city charters” are unconstitutional. This case is the first of its kind to be challenged through the courts and may set an historic precedent going forward. To catch up on this full story, please see previous GAP posts (parts 1 and 2).
PLOT TWIST…2nd court case filed!
In a recent news release:
Current candidate for the election for Mulberry City Council District 4 and Mulberry resident, Harris J. Roth, filed a new declaratory judgment lawsuit on September 29, 2024, challenging Senate Bill 333 and the City of Mulberry. The lawsuit names Gwinnett County as the defendant, and it seeks a judicial declaration under the Declaratory Judgment Act that SB 333 and the City of Mulberry are unconstitutional.
Gwinnett County was served with the lawsuit on September 30, 2024. Mr. Roth plans on getting the Court's direction on the fate of SB 333 during his campaign, and therefore will file to get an emergency hearing before the November 5, 2024, election.
Mr. Roth's lawsuit states:
"Petitioner Harris J. Roth brings this declaratory judgment lawsuit to end the storm cloud of uncertainty caused by the clear, irreconcilable unconstitutionality of Senate Bill 333 (2024) (“SB 333”). Petitioner did not want to have to bring this lawsuit, but he feels compelled to do so as a duly authorized candidate for the city council election for the City of Mulberry (“Mulberry’) and a conscientious Mulberry and Gwinnett County taxpayer. This uncertainty must end. As candidate for the Mulberry city council election, Petitioner clearly has standing, and this case presents a live, justiciable controversy."
Mr. Roth faces palpable and ongoing uncertainty regarding his campaign for Mulberry city council and the expenditure of his own money and his campaign contributors’ money. Is SB 333 legally void? Is Petitioner wasting the money of the citizens who contribute to his campaign? Is he wasting his time and the time of his volunteers on a city election campaign for a city that legally does not exist? Only the Superior Court of Gwinnett County can answer Petitioner's uncertainty.
Further Mr. Roth's new lawsuit states that:
"Petitioner had been following the case of Stephen Hughes v. Gwinnett County et al., CAFN 24-A-05098-7, in the Superior Court of Gwinnett County before the Honorable Judge Tadia Whitner. Petitioner was disappointed that that case did not reach the merits of SB 333’s unconstitutionality and was dismissed on the alleged lack of standing. Petitioner decided that as a candidate for Mulberry city council that he would surely have standing to bring this case and get a decision on the merits."
Previously, the Honorable Judge Tadia Whitner dismissed Mulberry resident and taxpayer Stephen Hughes' lawsuit seeking to invalidate SB 333 and the City of Mulberry in a written order signed September 20, 2024. That lawsuit was styled as Stephen Hughes v. Gwinnett County v. Rbert Michael Coker and Citizens for Mulberry, Inc., Gwinnett Superior Court, Civil Action File Number 24-A-05098-7. Judge Whitner found that Stephen Hughes did not have standing to challenge SB 333, and therefore avoided making a ruling on the merits of the case. Therefore, because the Court sidestepped a merits decision, the storm cloud of uncertainty remains over the challenged provisions of the Mulberry charter.
Mr. Hughes also filed a notice of appeal in Hughes v. Gwinnett County et al. on September 26, 2024, and he has appealed his case to the Supreme Court of Georgia. He will seek an expedited ruling on his case.
As discussed previously, SB 333 is a local law that created the City of Mulberry out of unincorporated Gwinnett County.
SB 333 created a city that by its very charter cannot collect property ad valorem tax. This is strictly and explicitly prohibited according to binding precedent of the Supreme Court of Georgia in Peacock v. Georgia Municipal Association. Further it conflicts with the Official Code of Georgia Annotated in Title 48, which gives all cities the ability to impose property taxes for their development authority and teacher retirement. As Peacock instructs, the General Assembly can only regulate a city's constitutional authority to tax through general law, not local law. SB 333 is plainly a local law, so its restrictions on taxation will be struck down once a court gets to the merits of the Act.
Additionally, SB 333 unconstitutionally forces the City of Mulberry to affirmatively exercise some of its Home Rule supplementary powers---zoning, storm water collection, and code enforcement. This cannot be done because it limits the discretion our Constitution grants all cities to choose what services to provide. Furthermore, the Georgia Constitution explicitly states that the General Assembly can only regulate and act upon a city's Home Rule powers through general law, not local law. Again, SB 333 is plainly a local law introduced by Senator Clint Dixon. These provisions will be struck down as well.
Mr. Roth did not know he was going to have to file this lawsuit when he became a candidate. But because months of litigation have not ended the cloud of uncertainty over Mulberry and SB 333 Mr. Roth felt compelled to intervene.
Mr. Roth is one of the few people on Earth who unquestionably has standing to test SB 333's constitutionality as he is presently a candidate for Mulberry City Council. Mr. Roth cares deeply about the Georgia Constitution, and he wants to be able to answer voters when they ask him what will happen to the Mulberry charter's restrictions on taxation and the city's discretion. He does not want to ask for public contributions from political donors if the City of Mulberry is a legal nullity. Only this lawsuit can answer these important questions.