Bass Pro Shops creates border war in Georgia

by Hannah Dankbar and Gary Taylor

Kemp v Monroe County
Georgia Supreme Court, November 5, 2015

At issue is the current boundary between Bibb County and Monroe County, Georgia.  Not coincidentally, the final determination of the boundary line will determine which county is entitled to the roughly $1.3 million in tax revenue generated by a Bass Pro Shops retail store and nearby homes. Monroe County supports a survey that puts the line a few hundred feet south of where Bibb thinks it is.

The dispute over the county boundary line began in 2005. The Governor sent a land surveyor to identify the boundary line according to state statute. The survey took place in 2008 and in 2009 the final report was submitted to Georgia’s Secretary of State per state statute. Bibb County filed exceptions to the survey (which would have put Bass Pro Shops in Monroe County) and Monroe County defended the survey. The Secretary of State assigned the hearing to the Special Assistant Administrative Law Judge in 2011, who accepted the survey. The Secretary of State then held oral arguments of his own and visited the site.  The Secretary chose to reject the survey, which left the boundary line undetermined.

Monroe County petitioned for mandamus, which the trial court granted  The trial court directed the Secretary to accept the survey and establish the boundary. The Secretary and Bibb County appealed asking: (1) whether the actions of an official under OCGA §36-3-20 et seq. may be subject to a writ of mandamus; and (2) if the mandamus is permissible, whether the Court erred in granting the mandamus petition and ordering the Secretary to record the survey.  During this time the Secretary informed all parties of his intent to hold a separate hearing and accept new evidence. Monroe County objected and the trial court ordered the Secretary to not hold the hearing, calling it a “gross abuse of discretion.”

The Supreme Court reversed the decision of the trial court. Counties do not have a right to a “particular process by which the Secretary is to receive evidence and reach a decision, as these matters fall within the Secretary’s discretion.” A court cannot “preclude the Secretary from allowing the record to be reopened and new evidence developed.” There is no statute constraining the Secretary of State to a particular process, including re-opening evidence. The trial court’s conclusion that it is unfair to hold an additional hearing presents a question for the legislature, not the court. The court is only allowed to determine if the Secretary’s actions are arbitrary or capricious; no such finding was made.

The trial court’s order was reversed and remanded. If either party wants to challenge the Secretary’s final decision they must show that the Secretary acted arbitrarily and capriciously or grossly abused his discretion.





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