Lawsuit challenges constitutionality of city of Mableton

May 16—Five city of Mableton residents have sued the nascent city in Cobb Superior Court, alleging the legislation which enabled the creation of the city is unconstitutional.

The suit was filed Monday by Mableton residents Deidre White, Ronnie Blue, Judy King, Tanya Leake and Robert Swarthout. It challenges the constitutionality of House Bill 839, calling the law "unconstitutional and fatally defective."

Mableton was enabled by HB 839, which passed the state legislature and was signed by Gov. Brian Kemp last year. The city was created after a slim majority of Mableton voters approved incorporation in last November's referendum.

The lawsuit alleges the bill is unconstitutional because it created both the city and community improvement districts.

Georgia's CIDs are special districts which fund infrastructure improvements within their borders by levying an additional tax on commercial property owners. Cobb has three of them — Cumberland, Town Center and Gateway Marietta.

HB 839, the suit alleges, violates the state constitution's single subject rule because it "creates legally separate units of local government in one act."

The bill is also unconstitutional, the plaintiffs argue, because the ballot question posed to voters included both the creation of the city and the CIDs.

That violates legal precedent from a 1908 Georgia case, the suit says, by not "providing the opportunity for the electors to address the propositions separately."

The state constitution, the suit adds, lays out a method for creating CIDs that allows them to be included in a city charter, but HB 839 didn't follow that method.

"Had HB 839 simply authorized Mableton to create CIDs, it would have passed legal muster," the suit says. "But that is not what the bill does. Instead, it improperly creates CIDs in the same bill that creates the city, as is patently recited in the text (under the caption 'Creation', no less), and in the ballot question's language ('creating community improvement districts')."

The suit asks the court for a declaratory judgment ruling that HB 839, and thus, the city, is void.

The five residents released a joint statement after filing suit.

"The Plaintiffs are bringing this lawsuit to stand up for the Georgia Constitution and protect freedom of choice for voters, as enshrined in Georgia's Single Subject Rule and the caselaw cited in the Complaint. The Plaintiffs look forward to making their case in Court," the statement reads.

Series of headwinds

The five residents are being represented by Allen Lightcap, an Atlanta-based attorney and former assistant attorney general. Lightcap previously filed three separate suits challenging the constitutionality of the proposed cities of East Cobb, Lost Mountain and Vinings, ahead of the May 2022 referendums on those proposals.

At the time, Cobb Superior Court Judge Robert Leonard declined to rule on the merits of the arguments before the referendums. When those three cityhood proposals were rejected by voters, the lawsuits became moot.

Monday's suit is the latest opposition the city has faced.

In the leadup to last November's election, a group of anti-cityhood residents formed Preserve South Cobb to campaign against incorporation.

After the referendum passed, the group rebranded as De-Annexation from Mableton. The group shifted its efforts, asking state legislators to de-annex areas of the city which voted against incorporation.

De-annexation supporters came up short during this year's legislative session, when Cobb lawmakers couldn't reach an agreement on de-annexing parts of the city.

The group later endorsed candidates friendly to their cause in the mayor and City Council races. Their preferred mayoral candidate lost, but two of their candidates were elected to the six-member council.

Last month, the group began a GoFundMe campaign to support a legal challenge. As of Tuesday afternoon, the fundraiser had collected $18,310 from 140 donations.

Christie Lynn, the leader of De-Annexation from Mableton, told the MDJ last month her group would "exhaust every option we can to not be part of the city," including litigation.

'Unfortunate'

The new city is already taking its first steps. Elections for mayor and City Council were held this spring. The mayor and council held its first transitional meeting last week, where it formally adopted HB 839 as the city charter, appointed three interim staff (a city attorney, city clerk and financial consultant), and authorized discussions with Cobb County on collecting tax revenues.

The suit, acknowledging the city's fledgling state, asks the court to allow time for the city of Mableton to get organized before it must respond to the suit.

Mableton Mayor Michael Owens said it's "unfortunate that the city is now just taking steps and moving us forward ... and we're being sued."

"Taxpayers are ultimately going to be responsible for having to defend the city in a lawsuit that I as mayor, nor the council, nor the city, had anything to do with," Owens said. "The constitutionality of the bill that was created is obviously something that was done in the Georgia (General) Assembly and was reviewed, and voted on, and ultimately signed by the governor."

HB 839 was spearheaded by former state Rep. Erica Thomas, a Democrat who then represented Mableton. Thomas did not seek reelection in 2022.

Reached for comment, Thomas said she was on vacation and wished to comment next week, before hanging up the phone.

A spokesperson for Kemp said the governor's office does not comment on pending or active litigation.

The bill was co-sponsored by four other Cobb lawmakers — Rep. Teri Anulewicz, D-Smyrna; then-Rep. Matt Dollar, R-east Cobb; Rep. Ginny Ehrhart, R-west Cobb, and then-Rep. Ed Setzler, R-Acworth.

Anulewicz told the MDJ that Thomas "was not very amenable to any conversations having to do with changing that enabling legislation."

The people that could have made changes to the bill, she said, were Thomas and the chairs of the House and Senate committees that reviewed it.

"And none of them wanted any changes," Anulewicz said. "There was only so much that could be done."

Anulewicz isn't sure if the lawsuit has merit.

To her knowledge, nobody raised the single subject rule as a problem during the 2022 session.

But Anulewicz said she heard that detail could be targeted in litigation during this year's session. Rep. David Wilkerson, D-Powder Springs, previously told the MDJ the same thing.

Owens said he believes the council will need to call a special meeting to consider its legal options.

Owens and Anulewicz both said the timing was unfortunate.

"I know some smart lawyer types are involved with this," Anulewicz said. "It would have been nice if they filed (suit) earlier."