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Legislative lawyer says part of freeze ballot question 'is not legal'

MIKE OWEN

mowen@ledger-enquirer.com

A deputy legislative counsel says part of the referendum to 'thaw' the property tax assessment freeze is 'not legal.'
A deputy legislative counsel says part of the referendum to 'thaw' the property tax assessment freeze is 'not legal.'

A deputy counsel for the Georgia House of Representatives has told Rep. Richard Smith (R-Columbus) that, in his opinion, aspects of Mayor Teresa Tomlinson’s proposed referendum to “thaw” the property tax assessment freeze is “not legal,” according to an email sent to Smith.

Smith sent a copy of the referendum, which would be put on the ballot if it were passed by the General Assembly as a whole, to a legislative deputy counsel, seeking his opinion.

The deputy counsel, Richard Russkell, said putting three different things — sunsetting the freeze, creating a market-based system and creating a higher homestead exemption for new homebuyers — violates the “single subject rule,” which doesn’t allow different subjects to be part of a single ballot question.

“I have had a chance to review the thaw the freeze bill you sent me. It is very complex and well written by someone who knows what they are trying to do. However, and I need to remind you that it is a very close question, I believe the combining of the repeal of the local LCA with the adoptions of two new homestead exemptions violates the single subject matter rule and combining all three matters into one referendum dependent on the passage of all three propositions is not legal. It forces voters to perhaps change their votes on one or two of the items if they want to get the item that is important to them.”

Tomlinson said before she put the ballot question to the General Assembly, she sought opinions from attorney Chuck Palmer, with the Atlanta firm of Troutman Sanders. One of Palmer’s specialties is government and regulatory law. In the early 2000s, he worked for the city successfully defending the freeze against a court challenge.

Asked Friday about Russkell’s opinion, Palmer said he “respectfully disagrees” and added that combining the different matters into one question is not only legal, but would cause much more legal trouble if they were to be separated.

“Our view of that is that it does not (violate the single-subject rule),” Palmer said. “In fact it would be more of a concern if you were to split all this out. The single-subject rule, and there have been a variety of cases decided on this, those cases have concluded that the phrase ‘subject matter’ as it’s used in the constitution, is supposed to be given a very broad meaning.

“That it allows the General Assembly to include in one piece of legislation matters that have a logical or natural connection. In this particular instance, we’re dealing with the homestead tax and so all of those things are tied together.”

Palmer likened it to the old game show “The Price is Right,” where, at the end of the show a contestant would have a prize in hand, but would be given a chance to trade the prize in hand for whatever was behind Door No. 1, No. 2 of No. 3.

“You might get a new car or you might get a donkey,” Palmer said. “If you didn’t have this as one ballot question, then somebody would say, ‘Well, I’m willing to repeal the local constitutional amendment, but I want to know what I’m getting to replace it. You don’t want to guess and end up with a donkey.”

Tomlinson called the effort by Smith “back-room politics,” and vowed to do all she can to get the legislation through the General Assembly and onto the November ballot.

“This is just the type of back room political dealing we were afraid would be attempted to keep the citizens from voting on a tax system that fairly meets their needs today and in the future,” Tomlinson said. “We are doing everything we can to make sure this ballot question gets a fair assessment by the legislature and a fair assessment by the voters.”

Smith said Tomlinson is entitled to her opinion, and that he is only trying to make sure, “if we’re going to do this, we’re going to do it right.”

“If it’s done right, it could make it to the floor,” Smith said. “But if it isn’t done right, I will not support it.”

State Rep. Calvin Smyre (D-Columbus), the dean of the local delegation, said the delegation asked him to seek opinions from Legislative General Counsel Wayne Allen, Russkell’s boss, and state Attorney General Sam Olens, to bring to a delegation meeting next week. Smyre said he expects to get Allen’s opinion early next week and bring it to the entire local delegation then.

Smyre said the legislation hasn’t been written yet, and public notice has not been posted, so the legislation is still in the earliest of stages.

“It’s just a matter of waiting on an opinion,” Smyre said. “This is just a cautionary matter.”

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