Gwinnett County sued the state of Georgia again over the new city of Mulberry, this time saying Gov. Brian Kemp signed an unconstitutional law requiring the county to pay some of the city’s expenses.
Senate Bill 138, which Kemp signed May 14, also strips Gwinnett County and officials of the “local governing body” from legal immunity “in all matters” for a year if a judge finds Gwinnett in violation of the new law.
The bill was narrowly written to apply solely to Gwinnett County.
State Sen. Clint Dixon, a Buford Republican whose district includes Mulberry, sponsored the bill. Democrats complained that Gwinnett County and Mulberry should be left to the usual process of negotiating an intergovernmental agreement without the involvement of the full Legislature.
Under the Georgia Constitution, sovereign immunity exempts governments from certain lawsuits to protect taxpayers from costly verdicts. In the state constitution, governmental immunity also exempts government officials and employees from certain lawsuits to protect taxpayers and address liability concerns that might otherwise discourage people from public service.
Gwinnett County’s lawsuit, filed in Fulton County Superior Court, asks a judge to invalidate the bill.
“I am committed to building a stronger, more prosperous future for all residents of Gwinnett County,” Nicole Love Hendrickson, chairwoman of the county commission, said in a statement. “This commitment includes a responsibility to ensure that all of Gwinnett County’s residents and taxpayers, including those who live in Mulberry, are not unfairly burdened with costly, unworkable mandates.
“Further, this new law potentially removes the benefit of sovereign immunity from all Gwinnett County taxpayers, setting a dangerous precedent for other counties across the state of Georgia.”
County officials have said suspension of sovereign and governmental immunities would open Gwinnett to “unlimited” and “incalculable” liability.
If the bill stands and a court ruling against Gwinnett triggers those provisions, the county will immediately reallocate a “substantial” amount of taxpayer funding to a reserve account for legal costs, the lawsuit says.
The Association County Commissioners of Georgia sent Kemp a letter in April expressing concerns about the bill, which he had not yet signed. The organization’s executive director, Dave Wills, said in the letter he was unaware of any other law that has ever eliminated a local government’s sovereign immunity for all claims.
“The county would be exposed to lawsuits and liability for matters wholly unrelated to the dispute between the county and municipality,” Wills said.
A spokesperson for Georgia Attorney General Chris Carr said in an email: “We will be defending SB 138 as enacted by the General Assembly and signed by Governor Kemp.”
Mulberry Mayor Michael Coker said he hoped to work with the county outside of court.
“We have great respect for Gwinnett County and recognize that Mulberry is still very much a part of the Gwinnett community,” he said in an email. “We are ready and willing to sit down with Chairwoman Love Hendrickson to have a conversation and to work toward resolving any of her concerns related to the bill and the transition of services.”
Mulberry was incorporated Jan. 1, kicking off a two-year transition period for city services. The new city contains about 41,000 residents across 26 square miles of northeastern Gwinnett.
The city charter, which voters approved last year, says Mulberry will provide stormwater, zoning and code enforcement services. The city will not establish a police department.
SB 138 requires Gwinnett County to calculate the cost of policing Mulberry based on time spent patrolling and investigating crimes and refund the city any police tax revenue from within its boundaries that exceeds that cost.
The lawsuit says that provision is unconstitutional because other taxpayers in Gwinnett’s police district will effectively be taxed at a higher rate to pay for administrative overhead, insurance, training, infrastructure and other police costs.
Although Mulberry will provide stormwater services, Gwinnett County — under SB 138 — might be required to permanently maintain dams and large detention ponds within the city, according to the lawsuit.
That would include the dam at Duncan Lake, where state-mandated inspections cost about $50,000 per year, and a rehabilitation project would cost about $1.5 million, county spokesperson Deborah Tuff said. The maintenance of detention ponds near Hamilton Mill Parkway and Hog Mountain Road are also at issue, Tuff said.
SB 138 also excuses Mulberry from paying Gwinnett County for administering its cityhood referendum and first city council election last year, although the city charter states Mulberry will reimburse the county. Both elections cost Gwinnett nearly $82,000 combined, Tuff said.
Gwinnett County last year sued the state over the creation of Mulberry, claiming the city’s charter was unconstitutional because it dictated which services the city would provide and prohibited a municipal property tax without a separate referendum. That lawsuit was dismissed.
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