DeKalb County Tax Commissioner Irvin Johnson and attorney Susannah Scott participated in a candidate forum for the tax commissioner’s position at New Life Church on May 16. They’ll face off in a July 26 runoff election. MARK NIESSE / MARK.NIESSE@AJC.COM.

DeKalb election lawsuit will cost taxpayer money

The public will bear some — and possibly all — of the legal costs stemming from a lawsuit filed by DeKalb County Tax Commissioner Irvin Johnson, who argues that he should be labeled as the incumbent on ballots in this year’s elections.

DeKalb’s government will pay an outside attorney $300 per hour to fight the suit, and the county also may be required to pay the same rate for a lawyer to represent Johnson in his official role as head of the tax office.

No attorney fees have been billed to the county yet, but the costs could quickly add up. For example, an eight-hour workday for both attorneys could cost taxpayers a total of $4,800.

Johnson, who will face attorney Susannah Scott in a July 26 runoff election for tax commissioner, filed suit days before Tuesday’s primary election. Johnson, the chief deputy in the tax office who took over its top job when his predecessor retired last year, said his lawsuit is needed to clarify conflicting statutes over elections and succession.

He said a law that required a special election for tax commissioner is unconstitutional. The law led to the unusual situation where the tax commissioner’s race appeared on Tuesday’s ballot twice — once for a special election to fill the last few months of the current four-year-term, and again for the Democratic primary for the next four-year term that starts Jan.1

“It’s about more than incumbency,” Johnson said. “The citizens have to have a clear understanding of when elections should transpire. … The citizens will be best served by getting this resolved.”

Scott said if the lawsuit was important, Johnson should have made his legal claims before early voting began May 2.

“I am concerned about the cost to taxpayers because that could lead to a significant outlay that taxpayers are footing the bill on,” she said.

Johnson’s lawsuit sought to delay Tuesday’s special election, but a judge didn’t take action on the case. Johnson received the most votes in Tuesday’s elections, followed by ScottFormer DeKalb Commissioner Stan Watson finished in third place.

Johnson’s attorney, Samuel Woodhouse, said the issues raised in the lawsuit still need to be resolved, and Johnson should be listed as the incumbent in upcoming elections.

A 1982 Georgia law states that the tax commissioner’s chief deputy fills the remainder of the term — without the need for a special election — when a vacancy occurs. Former DeKalb Tax Commissioner Claudia Lawson stopped down at the end of last year.

But another state law — passed specifically for DeKalb County in 2008 after Tax Commissioner Tom Scott died in 2006 — requires a special election. That law says an interim tax commissioner shouldn’t be designated as the incumbent on the ballot.

Woodhouse said the more recent statute is invalid because it violates requirements in the Georgia Constitution that laws should be generally applied across the state and not single out an individual — in this case, the DeKalb tax commissioner.

“I just know that the 2008 law, whatever the reason was for it being passed, is outrageously unconstitutional and it only applies to the DeKalb tax commissioner’s office,” Woodhouse said.

An attorney representing the defendant, DeKalb County, filed a motion to dismiss the lawsuit, saying the county is entitled to sovereign immunity. The motion also contends the suit should have been filed in a more timely manner, among other arguments. The attorney, R. David Ware, declined to comment.

Woodhouse said he believes the county government should pay his legal fees, and a judge should consider the payment issue. County attorneys can’t represent both the plaintiff, the tax commissioner, and the defendant, DeKalb’s government, he said.

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