Judge schedules emergency hearing in Gwinnett cityhood lawsuit

A sign located at the intersection of Pine Road and Braselton Highway in Gwinnett reflects the sentiment of some residents who are against the proposed City of Mulberry in Gwinnett. Monday, April 22, 2024.
(Miguel Martinez / AJC)

Credit: Miguel Martinez

Credit: Miguel Martinez

A sign located at the intersection of Pine Road and Braselton Highway in Gwinnett reflects the sentiment of some residents who are against the proposed City of Mulberry in Gwinnett. Monday, April 22, 2024. (Miguel Martinez / AJC)

A Gwinnett County Superior Court judge has scheduled an emergency hearing for Thursday in a Gwinnett man’s lawsuit to have the proposed city of Mulberry struck from the May 21 election ballot.

Voters within a 26-square-mile area of the county are being asked whether to incorporate by approving the proposed city’s charter. The new city would provide planning and zoning, code enforcement and storm water services. The charter says the city could not levy property taxes without voter approval in a subsequent referendum.

Stephen Hughes, a retiree within the boundaries of the proposed city, sued last month on the grounds that the proposed charter is unconstitutional. The lawsuit argues that limiting a city council’s power to tax and provide additional services infringes on the city’s home rule powers.

Hughes sued the Gwinnett County elections supervisor and the elections board, which had placed the question on this month’s ballot. Early voting began April 29.

Citizens for Mulberry, a special interest committee campaigning for the new city, has hired a lawyer and is joining the case, said State House Majority Leader Chuck Efstration, who would live in the new city and is leading the charge for it.

If incorporated, the new city would have about 41,000 residents. It would be Gwinnett’s largest city by land area and its second largest by population.

Judge Tadia Whitner will hear Hughes’ request for a judgement, injunction or mandate Thursday at 1:30 p.m., according to an order issued Tuesday.

“The voters are being misled about the charter for the proposed City of Mulberry,” the emergency motion states. “The very features of the proposed city being touted to the voters — like the restrictions on taxation — are the same features that are inarguably unconstitutional according to Supreme Court of Georgia precedent and the plain text of the Georgia Constitution. The voters are being sold a bill of goods, and only this Court can stop a fraud from being perpetrated.”

Efstration and state Sen. Clint Dixon, R-Buford, sponsored the legislation to propose the city as a way to give residents more control over the area’s growth after a developer pitched a 700-unit apartment complex in the area.

“This lawsuit is nothing more than a last, desperate attempt to stop Mulberry’s creation by denying voters the right to weigh in,” Efstration said. “There is no case law the opponents of Mulberry can cite to support their position under Georgia’s current constitution.”

Pro-cityhood groups have accused Hughes of being funded by developers. Hughes’ attorney, Allen Lightcap, said the lawsuit’s funding is subject to attorney-client privilege and irrelevant to the issue of the ballot question’s constitutionality.

“Unfortunately, it’s just a distraction and a sideshow away from the case,” Lightcap said.