“Frankenstein” was back before the Georgia Supreme Court Wednesday. It’s a monster case worth enough money for lawyers to keep bringing it back to life.
Atlanta and Fulton County have been fighting for years over who has the right to tax a 1.4-acre lot in an industrial park on the western side of the city that has far greater importance than the boarded-up bank building that sits there. City leaders have decided to use the land as a test case, according to the lawyer who argued for them last time the matter was decided by the high court two years ago and again Wednesday, Robert Ashe III of Bondurant, Mixson & Elmore. If Atlanta can establish the right to annex that one piece of land, it could theoretically annex—and tax—the entire industrial park. So millions of tax dollars annually forever are riding on the question.
Fulton County Deputy Attorney Kaye Burwell told the court Wednesday that the Georgia General Assembly gave the county the right to tax the land with the creation of the Fulton County Industrial District tax zone in 1979.
But Ashe countered that the constitutional amendment the county cites for its right to the property was invalid the day it passed because it combined different pieces of legislation. He likened it to the infamous monster made from stitched-together body parts.
“It’s a Frankenstein,” Ashe said.
Two years ago, it looked like Ashe and the city had lost. The Supreme Court issued a unanimous opinion holding that the city of Atlanta was never on solid legal ground in seeking a declaratory judgment on its right to annex land that was part of the Fulton County Industrial District tax zone. Justice Keith Blackwell wrote that the trial court—Fulton County Superior Court Judge Gail Tusan—should have dismissed the city’s lawsuit. Instead, Tusan granted the city’s request to declare void the state legislation that created the county’s industrial tax zone in 1979. The high court’s decision returned the case to Tusan for dismissal.
“We are glad that the case has concluded and thank the Supreme Court for their work,” County Attorney Patrise Perkins-Hooker said at the time.
But the dispute wasn’t dead after all.
The city released a statement noting Blackwell took issue with the city for inquiring whether the proposed annexation would be lawful before taking action. “The Supreme Court expressed no view as to the merits of the city’s ultimate legal position that the (Fulton Industrial District) legislation is invalid. In light of this ruling, the City will evaluate its options going forward within the FID,” the city said.
In 2017, the city annexed the disputed land. In response, Fulton County sued in Fulton County Superior Court, challenging the annexation based on the 1979 local constitutional amendment. The county lost and appealed, bringing the case back to the Supreme Court.
Wednesday’s oral arguments included debate on the validity of different versions of—and amendments to—the state constitution over the past 40 years, and a long discussion of the “single subject rule” for legislation. That interested brand new Justice Charlie Bethel, who served as Gov. Nathan Deal’s floor leader in the Georgia Senate until Deal put Bethel on the bench—first in 2017 on the Court of Appeals and this month on the Supreme Court.
“The single subject rule is determined by how far away from the issue you stand, is it not?” Bethel asked Ashe.
Ashe answered that the legislation in question had unrelated measures tacked on. That’s where he brought up Frankenstein.
Ashe finished his argument with time left on the clock, saying, “I’m going to reserve the rest of my time for the next time I’m here.”
The current incarnation of the case is Fulton County v. City of Atlanta, No. S181156.