In the Supreme Court of Georgia

Decided: February 7, 2023

S22A0837. CAMDEN COUNTY v. SWEATT, et al.

 MCMILLIAN, Justice.

Camden County (the “County”) appeals the superior court’s 

denial of its “Petition for Writ of Prohibition and Other Relief” 

concerning an order entered by Camden County Probate Judge 

Robert C. Sweatt, Jr., setting a special election for a referendum on 

whether resolutions authorizing the County’s purchase of land for a 

rocket launch facility should be repealed (the “Referendum”). The 

County asserts that the Referendum was not authorized under 

Subsection (b) (2) of Article IX, Section II, Paragraph I of the Georgia 

Constitution, which established home rule for counties in this state 

(the “Home Rule Paragraph”)1 and that the results of the 

 1 The full text of the Home Rule Paragraph is attached as Appendix I to 

this opinion.
2

Referendum are a nullity. As a result, the County argues that the 

superior court erred in denying its petition for writs of prohibition 

and mandamus against Judge Sweatt and its petition for a judgment 

declaring that the Referendum was not authorized under the 

Constitution. We disagree and affirm for the reasons set forth 

below.2

The facts are undisputed. Beginning in 2015, the Board of 

Commissioners for Camden County, Georgia (the “Board”) began 

making plans to build a commercial rocket launch facility (the 

“spaceport”) in Camden County. On June 3, 2015, the Board 

approved the County’s entry into an option agreement with Union 

Carbide Corporation (the “Option Agreement”) for the purchase of 

certain land on which to build the spaceport and later approved 

amendments to the Option Agreement that apparently extended the 

 2 We are aided by helpful amicus curiae briefs filed by (1) Association 

County Commissioners of Georgia and (2) Ben Goff, Jacqueline Eichhorn, 

University of Georgia School of Law First Amendment Clinic, and the Georgia 

First Amendment Foundation. We thank them for their assistance.
3

length of the option period.3 However, citizen opposition to the 

project arose over time, and on December 14, 2021,4 a number of 

registered electors in the County filed a petition under the Home 

Rule Paragraph in the Probate Court of Camden County (the 

“Electors’ Petition”), seeking a special election for a referendum on 

the issue of whether the Board’s resolutions authorizing the Option 

Agreement and its extensions (the “Resolutions”) should be 

repealed. 

The County filed a caveat to the Electors’ Petition alleging that 

the petitioners failed to meet the requirements of the Home Rule 

Paragraph because the filing contained a number of duplicate and 

inconsistent voter signatures, which brought the number of electors 

below the Home Rule Paragraph’s requirement for obtaining a 

referendum. Judge Sweatt issued an order dismissing the caveat on 

 3 Although the amendments to the Option Agreement extending the 

option period are not in the record on appeal, the parties do not contest that 

the Option Agreement was extended several times.

4 That same day, two electors, James Goodman and Paul A. Harris, also 

filed suit in the Superior Court of Camden County to prevent the County from 

closing on the purchase of the land for the spaceport and obtained a temporary 

restraining order to that effect. However, the superior court later denied 

injunctive relief following an evidentiary hearing.
4

February 8, 2022 (the “Caveat Order”), determining that there is no 

legal authority for filing an objection to a petition filed by electors 

under the Home Rule Paragraph, and even if such authority existed, 

the County’s caveat was not verified as required under Georgia law. 

See OCGA § 15-9-88 (In probate court, “[a]ll objections or caveats to 

an order sought shall be in writing and verified, setting forth the 

grounds of such caveat.”).

That same day, February 8, 2022, Judge Sweatt also issued an 

order granting the Electors’ Petition (the “Referendum Order”). The 

order determined that (1) the required number of verified electors 

had signed the petition; (2) the petition requested that the following 

question be put to the County’s electors at a special election called 

pursuant to the Home Rule Paragraph: 

Shall the resolutions of the Board of Commissioners of 

Camden County, Georgia authorizing the Option 

Contract with Union Carbide Corporation and Camden 

County’s right and option to purchase the property 

described therein be repealed[;]

and (3) the petition satisfied the requirements of the Home Rule 

Paragraph. Based on these findings, the order directed that a special 
5

election on the question would be held on March 8, 2022. The County 

did not attempt to appeal either the Referendum Order or the 

Caveat Order.

However, prior to the special election, on February 24, 2022, 

the County filed a “Petition for Writ of Prohibition and Other Relief” 

in the Superior Court of Camden County against Judge Sweatt and 

also named James Goodman and Paul A. Harris, who had been 

among the electors to sign the Electors’ Petition, as interested 

parties who may wish to intervene in the proceeding. The petition 

sought writs of prohibition and mandamus against Judge Sweatt,

asserting that he had exceeded the probate court’s jurisdiction in 

setting the special election. The petition also sought a declaratory 

judgment that the Electors’ Petition was invalid, the Referendum 

Order was a nullity, and the Referendum was unauthorized, along 

with further declaratory relief to avoid consequences to the County 

arising from the Referendum. Goodman and Harris successfully 
6

moved to intervene in this action on February 25, 2022.5 An 

expedited hearing was held on March 3, 2022, and the next day, 

March 4, the superior court issued a written order6 summarily 

denying the County’s petition.7 On March 8, 2022, the Referendum

was held, resulting in a vote in favor of repealing the Resolutions.

In considering the County’s appeal in this case, we will address 

separately each form of relief sought in the County’s Petition: (1) 

writ of mandamus; (2) declaratory judgment; and (3) writ of 

prohibition.

1. Writ of Mandamus: The County petitioned the superior court 

 5 Goodman and Harris are hereinafter referred to collectively as the 

“Intervenor-Appellees.”

6 This order also denied as moot a motion filed by the IntervenorAppellees seeking to dismiss the County’s petition.

7 On March 4, 2022, the same day the superior court issued its order, the 

County filed an emergency motion in the Court of Appeals seeking to prevent 

the probate court from certifying the results of the Referendum, and the Court 

of Appeals transferred the matter to this Court several days later. We denied 

the emergency motion on March 10, 2022. See Case No. S22M0759. On March 

14, 2022, the County filed an application for Interlocutory Appeal, which we 

dismissed on the ground that the County was entitled to a direct appeal from 

the superior court’s order. See Case No. S22I0782. The County’s separate 

direct appeal was docketed in this Court and orally argued by the parties on 

October 6, 2022, at a special session held in Augusta, Georgia.
7

for a writ of mandamus pursuant to OCGA §§ 9-6-208 and 9-6-21,9

asserting that it is entitled to such relief “because the constitutional 

provision does not allow for a referendum in this circumstance.” The 

County’s petition for mandamus sought a writ commanding Judge 

Sweatt to “abandon his exercise of jurisdiction over the Petition;” 

“refrain from canvassing the returns and declaring and certifying 

the results of the March 8 election to the County”; “refrain from 

certifying the results of the March 8 election to the Secretary of 

State”; and “issue an order declaring the Petition invalid.”

 8 Under OCGA § 9-6-20, 

[a]ll official duties should be faithfully performed, and whenever, 

from any cause, a defect of legal justice would ensue from a failure

to perform or from improper performance, the writ of mandamus 

may issue to compel a due performance if there is no other specific 

legal remedy for the legal rights; provided, however, that no writ 

of mandamus to compel the removal of a judge shall issue where 

no motion to recuse has been filed, if such motion is available, or 

where a motion to recuse has been denied after assignment to a 

separate judge for hearing. 9 OCGA § 9-6-21 (a) provides: 

Mandamus shall not lie as a private remedy between individuals 

to enforce private rights nor to a public officer who has an absolute 

discretion to act or not to act unless there is a gross abuse of such 

discretion. However, mandamus shall not be confined to the 

enforcement of mere ministerial duties.
8

This Court has described a writ of mandamus as

an extraordinary remedy to compel a public officer to 

perform a required duty when there is no other adequate 

legal remedy. It is a discretionary remedy that courts may 

grant only when the petitioner has a clear legal right to 

the relief sought or the public official has committed a 

gross abuse of discretion. In general, mandamus relief is 

not available to compel officials to follow a general course 

of conduct, perform a discretionary act, or undo a past act.

Gaddy v. Ga. Dept. of Revenue, 301 Ga. 552, 561-62 (3) (802 SE2d 

225) (2017) (citation omitted and emphasis supplied). See also 

R.A.F. v. Robinson, 286 Ga. 644, 646 (1) (690 SE2d 372) (2010) 

(“Mandamus can be used to compel an official to exercise his or her 

discretion, but not to direct the manner in which that discretion is 

exercised.” (citation and punctuation omitted)). Rather, “mandamus 

relief applies prospectively only. It will not lie to compel the undoing 

of acts already done and this is so even though the action taken was

clearly [in violation of the Georgia Constitution].” Atlanta 

Independent School System v. Lane, 266 Ga. 657, 660 (6) (469 SE2d 

22) (1996) (affirming denial of mandamus relief seeking repayment 

of amounts paid by city to school district under an agreement that 
9

violated the Georgia Constitution).

Under the Home Rule Paragraph, the probate court judge’s 

first responsibility upon receipt of a petition filed by electors for a 

special election is “[to] determine the validity of such petition.” Ga. 

Const. of 1983, Art. IX, Sec. II, Par. I (b) (2) (hereinafter 

“subparagraph (b) (2)”). If the judge determines that the petition is 

valid, “it shall be his duty to issue the call for an election for the 

purpose of submitting such amendment or repeal to the registered 

electors of the county for their approval or rejection” and to follow 

certain other procedures in conjunction with that election. Id.10 If 

the judge determines that the petition is invalid, “he shall cause to 

be published in explicit detail the reasons why such petition is not 

valid[.]” Id. Here, Judge Sweatt determined that the Electors’ 

Petition was valid and called the special election on February 8, 

2022. The special election took place on March 8, 2022, and Judge 

Sweatt thereafter certified the results. On appeal, the County 

 10 The County does not deny that Judge Sweatt has complied with the 

remaining requirements and procedures of subparagraph (b) (2) with regard to 

the election.
10

contends that the Superior Court should have issued a writ of 

mandamus to reverse the judge’s determination that the Electors’ 

Petition was valid. In other words, the County asks for a writ of 

mandamus commanding the judge to undo his determination and 

the acts that followed. Under these circumstances, we conclude that

the superior court properly denied the County’s petition for a writ of 

mandamus because it sought only to compel Judge Sweatt to undo 

actions he had already taken. 

2. Declaratory Judgment: The County contends that the 

superior court erred in denying the declaratory relief it sought11

 11 The County sought a declaratory judgment on the following issues: 

[t]hat the Petition is invalid under [the Home Rule Paragraph]; 

[t]hat the [Referendum Order] . . . is a nullity because it was issued 

beyond the Probate Court’s jurisdiction and in violation of the 

Constitution; [t]hat as a result of the nullity of the [Referendum 

Order], the March 8 [Referendum] is unauthorized and in 

contravention of the Constitution; [t]hat as a result, the County is 

not obligated to expend funds for an illegal election because it 

would violate Georgia law; [t]hat as a result, the repeal of the 

resolutions as would be effected by the [Referendum] will be 

invalid as “inconsistent” with the Constitution; [t]hat as a result, 

the status of the Option Contract would remain unaffected by the 

returns of the [Referendum] or any further action taken by the 

Honorable Judge Sweatt including, but not limited [to], Judge 

Sweatt’s further exercise of jurisdiction over the [Electors’] 

Petition in contravention to the writs petitioned for herein.
11

because the Electors’ Petition was not authorized under the Home 

Rule Paragraph.12

(a) Before we address the merits of the County’s argument, 

however, we first consider the Intervenor-Appellees’ assertion that 

the County is not authorized to pursue an action for declaratory

judgment because it became a party to the probate court proceedings

when it filed a caveat to the Elector’s Petition and then failed to 

 

(Citation and paragraph numbering omitted.)

12 Judge Sweatt argues on appeal that sovereign immunity bars a 

request for declaratory relief against him in his official capacity, citing 

GeorgiaCarry.Org, Inc. v. Bordeaux, 352 Ga. App. 399, 403 (3) (834 SE2d 896)

(2019) (concluding that the probate judge was a public employee of the State 

and could assert sovereign immunity when sued in his official capacity by 

entity in connection with issuing a gun carry license). However, sovereign 

immunity does not apply to lawsuits between political subdivisions of the State 

because “[n]either entity retains a superior authority over the other that would 

prevent it from being hailed into a court of law by the other.” City of College 

Park v. Clayton County, 306 Ga. 301, 311 (1) (b) (830 SE2d 179) (2019). 

Likewise, the County is not sovereign over Judge Sweatt, who was sued in his 

official capacity, nor is Judge Sweatt sovereign over the County. Rather, they 

stand on equal footing for purposes of sovereign immunity in this case because 

“a suit against a county officer in [his] official capacity is a suit against the 

county itself.” Layer v. Barrow County, 297 Ga. 871, 871 (1) (778 SE2d 156) 

(2015) (emphasis in original). See also Gilbert v. Richardson, 264 Ga. 744, 746

(4), n. 4 (452 SE2d 476) (1994). Thus, sovereign immunity does not apply to 

this lawsuit. See City of College Park, 306 Ga. at 311 (1) (b). Judge Sweatt does 

not otherwise argue that he was not the appropriate respondent in the 

County’s petition for declaratory judgment, so we express no opinion on that 

issue.
12

appeal the Referendum Order validating the petition. The 

Intervenor-Appellees contend that the County is barred “both as a 

matter of collateral estoppel and as a failure of a prerequisite to its 

substantive claims.” We disagree.

As to collateral estoppel, and assuming without deciding that 

the Electors’ Petition is an “action” to which the doctrine of collateral 

estoppel applies, the doctrine does not bar the County because the 

County was never a party to the probate court proceedings. “The 

doctrine of collateral estoppel precludes the re-adjudication of an 

issue that has previously been litigated and adjudicated on the 

merits in another action between the same parties or their privies.”13

Copelan v. Copelan, 294 Ga. 840, 841 (755 SE2d 739) (2014) (citation 

and punctuation omitted; emphasis supplied). See also Pike County 

v. Callaway-Ingram, 292 Ga. 828, 832 (2) (742 SE2d 471) (2013). 

 13 “A privy is generally defined as one who is represented at trial and 

who is in law so connected with a party to the judgment as to have such an 

identity of interest that the party to the judgment represented the same legal 

right.” Lilly v. Heard, 295 Ga. 399, 404 (2) (c) (761 SE2d 46) (2014) (citation 

and punctuation omitted). The Intervenor-Appellees do not contend that any 

party involved in the probate court proceedings was the County’s privy. 
13

Therefore, the claims of an individual or entity who was not a party 

to, and whose interests were not represented in, the prior action will 

not be barred by collateral estoppel. See In re T.M.G., 275 Ga. 543, 

544 (570 SE2d 327) (2002) (foster parents’ claim for adoption of child 

not barred because they were not a party to earlier adoption 

proceeding with different prospective parents, nor were their 

interests represented by the parties to that proceeding). 

This Court has defined the term “party to an action” to include 

“all who are directly interested in the subject matter, and who have 

a right to make [a] defense, control the pleadings, examine and 

cross-examine witnesses, and appeal from the judgment.” State Bar 

of Ga. v. Beazley, 256 Ga. 561, 563 (1) (b) (350 SE2d 422) (1986)

(citations omitted).14 See also Smith v. Gettinger, 3 Ga. 140, 142 

(1847) (plaintiff was not a party to a prior attachment action 

rendered in favor of defendant against a third party where he “had 

 14 Although this definition arose in the context of res judicata, we see no 

reason why the same definition would not apply equally for the doctrine of 

collateral estoppel. See Butler v. Turner, 274 Ga. 566, 568 (1) (555 SE2d 427) 

(2001) (both res judicata and “[t]he related doctrine of collateral estoppel . . . 

require[ ] the identity of the parties or their privies in both actions”).
14

no power, in his own right, to make a defense against [the 

attachment], to adduce testimony, to examine witnesses, to control 

the proceedings, or to enter an appeal”).

The County did not become a party to the probate court 

proceedings. As Judge Sweatt determined, even though the County 

filed a caveat opposing the Elector’s Petition, it had no right to make 

a defense to the petition. The Home Rule Paragraph makes no 

provision authorizing a county, or any other party, to file a caveat,

or any other form of opposition, to an elector’s petition in the probate 

court. Instead, the Home Rule Paragraph provides that elections 

called by the probate judge under that paragraph “shall be held 

under the same laws and rules and regulations as govern special 

elections, except as otherwise provided herein.” Ga. Const. of 1983,

Art. IX, Sec. II, Par. I (b) (2). OCGA § 21-2-540 (a) (1) provides that 

every . . . special election shall be held and conducted in 

all respects in accordance with the provisions of this 

chapter relating to general primaries and general 

elections; and the provisions of this chapter relating to 

general primaries and general elections shall apply 

thereto insofar as practicable and as not inconsistent with 

any other provisions of this chapter.
15

And those special election “laws and rules and regulations” make 

clear that the County was not a party to the probate court 

proceedings. 

With respect to challenging an election, the statute governing 

contests to elections provides in pertinent part: “[T]he approval or 

disapproval of any question submitted to electors at an election may 

be contested by . . . any aggrieved elector who was entitled to vote . 

. . for or against such question.” OCGA § 21-2-521. The statute thus 

limits the right to contest elections to “electors.” Because the County 

is not an elector, it would not be authorized to contest the outcome 

of the special election under the Election Code. Moreover, we could 

not locate, and the Intervenor-Appellees do not point out, any 

authority in the Election Code, OCGA § 21-2-1 et seq., or otherwise 

that would allow the County to file a caveat or any other objection

before an election and contest an application to submit a question to 

the electorate under the Home Rule Paragraph. Where there is no 

authority for a county to participate in the petitioning for a special 
16

election under the Home Rule Paragraph, the County cannot be said 

to have a “direct interest” in the probate court proceedings in this 

case. 

The conclusion that the County was not a party to the probate 

court proceedings also answers the Intervenor-Appellees’ assertion 

that the County had to appeal the Referendum Order before seeking 

a declaratory judgment. Because the County was not a party to the 

probate court proceedings, it had no right to appeal the Referendum 

Order. See State v. Cash, 298 Ga. 90, 93 (1) (b) (779 SE2d 603) (2015) 

(“[T]he Appellate Practice Act, see OCGA §§ 5-6-30 to 5-6-51 . . .

grants the right of appeal only to either party in any civil case and 

the defendant in any criminal proceeding.” (citation and 

punctuation omitted)). Cf. Davis v. Deutsche Bank Nat. Trust Co., 

285 Ga. 22, 24 (673 SE2d 221) (2009) (trial court’s ruling disposing 

of appellant’s motion to intervene entered contemporaneously with 

a ruling granting summary judgment to one of the parties to the suit

“does not make [appellant] a party to the suit, and does not confer 

standing on her to appeal the grant of partial summary judgment to 
17

one of the parties”).15 And we could locate no authority authorizing 

 15 To the extent that the Appellee-Intervenors also argue that the County 

nevertheless should have moved to intervene in the probate court proceedings, 

the Appellee-Intervenors do not cite, nor could we find, legal authority under 

which the County would have been permitted to take such action. In Georgia, 

non-party intervention in court proceedings is governed by OCGA § 9-11-24 of 

Georgia’s Civil Practice Act (“CPA”). However, application of the CPA is limited 

to “actions of a civil nature whether cognizable as cases at law or in equity,” 

OCGA § 9-11-1 (emphasis supplied), or special statutory proceedings as 

prescribed in OCGA § 9-11-81. Georgia law governing probate court 

proceedings provides for intervention only in civil cases. See OCGA § 15-9-122 

(“Unless provided to the contrary [under the law], the general laws and rules 

of practice, pleading, procedure, and evidence that are applicable to the 

superior courts of this state shall be applicable to and govern in civil cases in 

the probate courts.” (emphasis supplied)); U. Probate Court R. 2.7 (B) (allowing 

parties to intervene “in civil cases before Article 6 Probate Courts” (emphasis 

supplied)). While the CPA does not define “actions of a civil nature,” it provides 

that “‘[c]ivil action’ means an action founded on private rights, arising either 

from contract or tort,” OCGA § 9-2-1, and the Georgia Code defines “civil case” 

in the context of probate courts as “those civil matters” that meet certain 

conditions. OCGA § 15-9-120 (1).

Here, the Electors’ Petition was not based on the violation of any private 

right; rather, it was based on the home rule power conferred on counties under 

the Home Rule Paragraph and the concomitant power conferred on the 

electorate to amend or repeal an ordinance, resolution, or regulation adopted 

by a county’s governing authority. Moreover, the Home Rule Paragraph 

describes the process by which the electorate may seek to amend or repeal 

certain “local acts or ordinances, resolutions, or regulations” and does not refer 

to the procedures set out under the CPA. Ga. Const. of 1983, Art. IX, Sec. 2, 

Par. I (b) (2). And although OCGA § 9-11-81 provides that the CPA’s provision 

governing intervention, OCGA § 9-11-24, also applies to all special statutory

proceedings in this state, the Home Rule Paragraph cannot be classified as 

establishing a “special statutory proceeding” as it arises under the Georgia 

Constitution, not the Georgia Code. Thus, we see no reason to characterize the 

Electors’ Petition as a civil action or a special statutory proceeding in which 

intervention under the CPA would apply.
18

the County to appeal the Caveat Order. Although the Appellate 

Practice Act provides for direct appeals from “[a]ll judgments or 

orders sustaining motions to dismiss a caveat to the probate of a 

will,” OCGA § 5-6-34 (9), no similar provision exists for judgments 

or orders denying caveats under any other circumstances.

Accordingly, we conclude that because the County was not a 

party to the probate court proceedings, its claim for declaratory 

relief is not barred by either collateral estoppel or its failure to take 

further direct action with regard to those proceedings. See 

Callaway-Ingram, 292 Ga. at 832 (2) (prior litigation “did not, and 

could not, conclude the claims” of defendant, because she was not a 

party to the prior case).

(b) We turn now to the County’s argument that it is entitled to 

declaratory relief because the special election procedures under the 

Home Rule Paragraph do not apply to the Resolutions in this case. 

To begin, we briefly review the history of home rule in Georgia. 

In 1965, the Georgia legislature first established home rule for local 

governments, by enacting the Municipal Home Rule Act of 1965, 
19

OCGA § 36-35-3 (b), and simultaneously proposing an amendment 

to the Georgia Constitution to provide home rule for counties, which

was ratified by the state’s voters in 1966. See R. Perry Sentell, Jr., 

The Georgia Home Rule System, 50 Mercer L. Rev. 99, 105-06 (II) 

(A) (1998).16 Prior to that time, the General Assembly exercised

plenary power over local government. See id. (“Few jurisdictions 

equaled Georgia’s adamant resistance to the home rule movement. 

The state’s historic devotion to legislative supremacy held strong for 

many [decades].”). As this Court has previously found and as 

discussed further below, the system of “home rule” for counties 

established under the Home Rule Paragraph confers “two 

‘legislating’ powers” to Georgia counties. Bd. of Commrs. of Miller 

County v. Callan, 290 Ga. 327, 328 (1) (a) (720 SE2d 608) (2012), 

quoting Sentell, 50 Mercer L. Rev. at 133 (III) (A) (4). “At the first 

 16 This disparity is explained by the fact that the Georgia Constitution 

previously had been amended to allow for the passage of municipal home rule 

legislation, but the Constitution contained no such provision for counties. 

Therefore, the legislature’s only option was to propose a constitutional 

amendment in order to establish home rule for counties. See Sentell, 50 Mercer 

L. Rev. at 110 (II) (B) (2).
20

tier, the [county’s] governing authority is empowered to adopt 

measures for its . . . county that do not rise to the level of affecting 

state legislation.” Id. (citation and punctuation omitted). See also 

Ga. Const. of 1983, Art. IX, Sec. II, Par. I (a) (permitting counties “to 

adopt clearly reasonable ordinances, resolutions, or regulations 

relating to its property, affairs, and local government for which no 

provision has been made by general law and which is not 

inconsistent with this Constitution or any local law applicable 

thereto”) (hereinafter “subparagraph (a)”). “However, the secondtier delegation constitutes the system’s most extensive grant of local 

legislating power; it comprises, no less, the essence of Georgia’s 

home rule complex.” Callan, 290 Ga. at 329 (1) (a) (cleaned up); see 

also Ga. Const. of 1983, Art. IX, Sec. II, Par. I (b). Under 

subparagraph (b), “counties are empowered to change existing state 

law,” Callan, 290 Ga. at 329 (1) (a) (cleaned up), under two separate 

procedures. Under the first of these procedures, the County may 

amend or repeal “the local acts applicable to its governing authority”

by a resolution or ordinance adopted by its governing authority in a 
21

two-vote procedure. Ga. Const. of 1983, Art. IX, Sec. II, Par. I (b) (1)

(hereinafter “subparagraph (b) 1”). The second of these procedures 

allows the electorate to petition for a special election to amend or 

repeal “such local acts or ordinances, resolutions, or regulations 

adopted pursuant to subparagraph (a).” See Ga. Const. of 1983, Art. 

IX, Sec. II, Par. I (b) (2). 

It is the second of these procedures and the scope of the power 

given to the electorate, which is at issue in this appeal – that is,

whether the use of the referendum procedure is limited to the

amendment or repeal of local acts applicable to a county’s governing 

authority, as the County contends, or whether it also allows a 

county’s electorate to seek a referendum on the amendment or 

repeal of measures that are adopted by a county’s governing 

authority pursuant to subparagraph (a), like the Resolutions 

authorizing the County to enter into and extend the Option 

Agreement here. All parties agree that the referendum procedure 

allows the electorate to amend local acts applicable to the County’s 

governing authority under the second-tier delegation of authority, 
22

but the County argues that the referendum procedure is limited to 

such local acts and that the referendum called here to overturn the 

Resolutions adopted by the County was unauthorized. Cf. Kemp v. 

City of Claxton, 269 Ga. 173, 175-76 (1) (496 SE2d 712) (1998)

(holding that the petition procedure under Municipal Home Rule Act 

“applies only to amendments to municipal charters”). 

In analyzing this issue, we begin with the text of the Home 

Rule Paragraph. In conferring the first-tier delegation of legislative 

power to counties, that provision reads:

The governing authority of each county shall have 

legislative power to adopt clearly reasonable ordinances, 

resolutions, or regulations relating to its property, affairs, 

and local government for which no provision has been 

made by general law and which is not inconsistent with 

this Constitution or any local law applicable thereto. Any 

such local law shall remain in force and effect until 

amended or repealed as provided in subparagraph (b).

Ga. Const. of 1983, Art. IX, Sec. II, Par. I (a).17 There is no dispute 

that subparagraph (a) authorized the Board to pass the Resolutions 

approving the Option Agreement and its extensions, which relate to 

 17 Subparagraph (a) also delineates the powers remaining to the General 

Assembly in light of this delegation.
23

property and the affairs of the County.

Our focus, however, is on the constitutional text addressing the 

second-tier delegation of legislative power, which states, in relevant 

part:

Except as provided in subparagraph (c),[18] a county may, 

as an incident of its home rule power, amend or repeal the 

local acts applicable to its governing authority by 

following either of the procedures hereinafter set forth:

(1) Such local acts may be amended or repealed by a 

resolution or ordinance duly adopted at two regular 

consecutive meetings of the county governing authority 

not less than seven nor more than 60 days apart. . . .

(2) Amendments to or repeals of such local acts or 

ordinances, resolutions, or regulations adopted 

pursuant to subparagraph (a) hereof may be initiated 

by a petition filed with the judge of the probate court of 

the county. . . .

Ga. Const. of 1983, Art. IX, Sec. II, Par. I (b) (emphasis supplied).

In determining the meaning of this language,

 18 Subparagraph (c) of the Home Rule Paragraph contains a list of 

matters excluded from the legislative powers granted in subparagraphs (a) and 

(b), none of which are applicable in this case, and further excludes “any other 

matters which the General Assembly by general law has preempted or may 

hereafter preempt, but such matters shall be the subject of general law or the 

subject of local acts of the General Assembly to the extent that the enactment 

of such local acts is otherwise permitted under this Constitution.” Ga. Const. 

of 1983, Art. IX, Sec. II, Par. I (c).
24

[w]e generally apply the ordinary signification to words in 

construing a constitutional provision. This means we 

afford the constitutional text its plain and ordinary 

meaning, view the text in the context in which it appears, 

and read the text in its most natural and reasonable way, 

as an ordinary speaker of the English language would.

McInerney v. McInerney, 313 Ga. 462, 464 (2) (870 SE2d 721) (2022) 

(citations and punctuation omitted). See also Olevik v. State, 302 Ga. 

228, 235-36 (2) (c) (i) (806 SE2d 505) (2017) (constitutional text is 

interpreted “according to the original public meaning of its text,” for 

which we consider the text’s “plain and ordinary meaning” (citation 

and punctuation omitted)). In other words, we look “for the meaning 

the people understood a provision to have at the time they enacted 

it.” Olevik, 302 Ga. at 235 (2) (c) (i). “And although the text is always 

our starting point . . . (and often our ending point, as well), the 

broader context in which that text was enacted may also be a critical 

consideration.” Id. at 236 (2) (c) (i). Moreover, constitutional 

interpretation differs from statutory interpretation in that “[o]ur 

objective focus is even more important when we interpret the 

Constitution. Unlike ordinary legislation, the people – not merely 
25

elected legislators – are the ‘makers’ of the Georgia Constitution.” 

Id. at 238 (2) (c) (i).

In addition, “[i]t is a basic rule of construction that a statute 

[or constitutional provision] should be construed to make all its 

parts harmonize and to give a sensible and intelligent effect to each 

part, as it is not presumed that the [drafters] intended that any part 

would be without meaning.” McIver v. State, 314 Ga. 109, 120 (2) (b) 

(875 SE2d 810) (2022) (citation and punctuation omitted). See also 

McInerney, 313 Ga. at 465 (2) (“[T]his Court must construe the 

Georgia Constitution to make its parts harmonize and to give 

sensible meaning to each of them.” (citation and punctuation 

omitted)); Brown v. Liberty County, 271 Ga. 634, 635 (522 SE2d 466) 

(1999) (same). And it is well settled that in interpreting statutory

text, “courts generally should avoid a construction that makes some 

language mere surplusage.” Middleton v. State, 309 Ga. 337, 342 (3) 

(846 SE2d 73) (2020) (citation and punctuation omitted). This

“canon of statutory construction applies with at least equal force in 

the constitutional context.” Garcia-Jarquin v. State, 314 Ga. 555, 
26

564 (878 SE2d 200) (2022) (Bethel, J., concurring). See also Gwinnett 

County School District v. Cox, 289 Ga. 265, 271 (2) (c) (710 SE2d 773) 

(2011) (“Established rules of constitutional construction prohibit us 

from any interpretation that would render a word superfluous or 

meaningless.”).

Applying these rules of construction to the text of the Home 

Rule Paragraph, we recognize that the introductory text of 

subparagraph (b) grants a county the authority to amend or repeal

“the local acts applicable to its governing authority” by two different 

processes. Subparagraph (b) (1) outlines the procedure by which a 

county’s governing authority may amend or repeal “such local acts.”

At the time the Home Rule Paragraph was ratified in 1966, the term 

“such” was defined to mean “[o]f this kind having [a] particular 

quality or character specified . . . . [S]uch represents the object as 

already particularized . . . and is a descriptive or relevant word, 

referring to the last antecedent.” Black’s Law Dictionary, p. 1600

(4th ed. 1951). Thus, “such local acts” clearly refers to “the local acts 

applicable to its governing authority” as set out in the introductory 
27

text. But subparagraph (b) (2) sets out the procedure by which a 

county’s electorate may seek a referendum on the amendment or 

repeal of “such local acts or ordinances, resolutions, or regulations 

adopted pursuant to subparagraph (a).” (Emphasis supplied.)

This language in subparagraph (b) (2) plainly grants repeal 

and amendment powers to the electorate for “ordinances, 

resolutions, or regulations adopted pursuant to subparagraph (a)” in 

addition to “such local acts” as referred to in the introductory text 

and subparagraph (b) (1). Both subparagraphs (b) (1) and (2) refer 

to “such local acts” and thus are consistent with the introductory 

text; subparagraph (b) (1) addresses only the governing authority’s 

power to amend or repeal such local acts through a two-vote 

procedure. Subparagraph (b) (2), on the other hand, describes in 

detail a special election/referendum process to amend or repeal such 

local acts, as well as county ordinances, resolutions, and regulations

adopted by the county’s governing authority under the first-tier 
28

delegation in subparagraph (a).19 To read subparagraphs (b) (1) and 

(2) as granting strictly coextensive powers, as the County urges us 

to do, would require us to ignore the phrase “or ordinances, 

resolutions, or regulations adopted pursuant to subparagraph (a)” in 

the text of subparagraph (b) (2), a reading that would violate wellestablished tenets of constitutional interpretation that generally

require each part of the text be given a sensible reading and not be 

rendered superfluous.20 See McIver, 314 Ga. at 119-20 (2) (b); 

Middleton, 309 Ga. at 342 (3); McInerney, 313 Ga. at 464 (2).

We are unpersuaded by the County’s warnings about the 

potential consequences of allowing the electorate to amend or repeal 

 19 Notably, subparagraph (b) (2) does not use the term “such” when 

referring to “ordinances, resolutions, or regulations,” which is in contrast to its 

use of the term “such local acts,” thereby supporting that the “ordinances, 

resolutions, or regulations” referred to are of a different kind than “such local 

acts.”

20 The County also argues that “ordinances, resolutions, or regulations” 

in subparagraph (b) (2) may refer to law passed under the two-vote process in 

subparagraph (b) (1), but that argument likewise ignores critical language in 

subparagraph (b) (2), which references “ordinances, resolutions, or regulations 

adopted pursuant to subparagraph (a),” and not that law adopted pursuant to 

subparagraph (b) (1). Ga. Const. of 1983, Art. IX, Sec. II, Par. I (b) (2) (emphasis 

supplied).
29

ordinances, resolutions, or regulations. The County urges that the 

Secretary of State may be compelled to publish all such amendments 

under subparagraph (g)21 of the Home Rule Paragraph; but that 

subparagraph on its face applies only to local acts, which, as 

discussed above, are distinct from ordinances, resolutions, or 

regulations. The County also warns that allowing the electorate to 

amend or repeal acts of a county’s governing authority could lead to 

a perpetual cycle of the same act being passed by the county and 

repealed by the electorate. But there is little evidence that such a 

parade of horribles would occur, given that a county’s governing 

authority, which is comprised of elected officials, would be unlikely

to routinely disregard the will of the electorate and given that 

 21 That subparagraph provides: 

No amendment or revision of any local act made pursuant to 

subparagraph (b) of this section shall become effective until a copy 

of such amendment or revision, a copy of the required notice of 

publication, and an affidavit of a duly authorized representative of 

the newspaper in which such notice was published to the effect 

that said notice has been published as provided in said 

subparagraph has been filed with the Secretary of State. The 

Secretary of State shall provide for the publication and 

distribution of all such amendments and revisions at least 

annually.

Ga. Const. of 1983, Art. IX, Sec. II, Par. I (g) (emphasis supplied).
30

subparagraph (b) (2) provides that “[a] referendum on any such 

amendment or repeal shall not be held more often than once each 

year.” In any event, even if such a scenario were to occur, we are 

bound to apply the plain meaning of the constitutional provision.

We conclude, therefore, giving effect to all parts of the text, that

the Home Rule Paragraph authorized the County’s electorate to 

petition for the repeal of the Resolutions and that Judge Sweatt was 

authorized to consider the Electors’ Petition to determine whether it 

met the requirements under that provision for obtaining a 

referendum on the issue. 

We recognize that our holding here is in tension with Kemp, 

269 Ga. at 175-76 (1), in which we construed the statutory home rule 

provisions applicable to municipalities under the Municipal Home 

Rule Act. That act contains a provision somewhat similar to 

subparagraph (b) of the Home Rule Paragraph and states that “a 

municipal corporation may, as an incident of its home rule power, 

amend its charter by following either [of two] procedures.” OCGA § 

36-35-3 (b). One of the prescribed procedures provides that 
31

[a]mendments to charters or amendments to or repeals of 

ordinances, resolutions, or regulations adopted pursuant 

to subsection (a) of this Code section may be initiated by 

a petition, filed with the governing authority of the 

municipal corporation . . . .

OCGA § 36-35-3 (b) (2) (A). 

In Kemp, we determined that in granting a writ of mandamus 

to compel consideration of a petition to repeal a city ordinance under 

the Municipal Home Rule Act, the trial court had erroneously relied 

upon “the reference to ‘amendments to or repeals of ordinances, 

resolutions, or regulations,’ found in OCGA § 36-35-3 (b) (2) (A).” 

Kemp, 269 Ga. at 176 (1). Reasoning that “the very concept of home 

rule suggests that the provisions of (b) (2) apply only to charter 

amendments,” the Court determined that because “[a]ll of OCGA § 

36-35-3 (b) is prefaced by a statement that what follows are the 

methods by which a municipal corporation may ‘amend its charter,’” 

the introductory language showed “that the petition and referendum 

provision is intended to be available only when the proposed 

amendment is intended to affect a city charter.” Id. Accordingly, the 

Court reversed the grant of mandamus, holding “[a]s we must 
32

strictly construe the grant of legislative power to the governing 

authority, [the Court] must reject plaintiffs’ argument that the 

electorate can directly exercise such general legislative power,” and 

that “[t]he petition procedure of OCGA § 36-35-3 (b) (2) applies only 

to amendments to municipal charters.” Id.

Because, here, we are construing a completely separate legal 

provision, the holding in Kemp does not control our decision in this 

case,22 and we need not consider at this time whether Kemp should 

be overruled in light of today’s ruling. Nevertheless, we note that in 

reaching the holding in Kemp, this Court dismissed some of the 

canons of construction we apply in this case, stating, instead, that 

“the spirit and intent of the legislation prevails over a literal reading 

of the language,” and “[t]he legislative intent will be effectuated 

 22 Moreover, because Kemp was decided in 1998, more than 30 years after 

the ratification of the Home Rule Paragraph in 1966 and more than 15 years 

after the 1982 ratification of the current Georgia Constitution, in which that 

provision was carried forward, Kemp’s interpretation of the similar language 

of the Municipal Home Rule Act forms no part of the legal context in which the 

Home Rule Paragraph was adopted. Cf. Olevik, 302 Ga. at 228 (2017) (part of 

the broader context in which we consider constitutional text is “the body of preenactment decisions of this Court interpreting the meaning of . . . text that the 

framers of our Constitution subsequently chose to use”).
33

even if some language must be eliminated.” Kemp, 269 Ga. at 175-

76 (1). 

Accordingly, we affirm the superior court’s denial of the 

County’s petition for declaratory relief.

3. Writ of Prohibition: The County also sought a writ of 

prohibition against Judge Sweatt on the grounds that he lacked 

authority and jurisdiction to call for the special election. See OCGA

§§ 9-6-40,23 9-6-41,24 and 9-6-42.25

A writ of prohibition seeks “to prevent a tribunal possessing 

judicial powers from exercising jurisdiction over matters not within 

 23 OCGA § 9-6-40 provides:

The writ of prohibition is the counterpart of mandamus, to restrain 

subordinate courts and inferior judicial tribunals from exceeding 

their jurisdiction where no other legal remedy or relief is given. 

The granting or refusal thereof is governed by the same principles 

of right, necessity, and justice as apply to mandamus; provided, 

however, that no writ of prohibition to compel the removal of a 

judge shall issue where no motion to recuse has been filed, if such 

motion is available, or where a motion to recuse has been denied 

after assignment to a separate judge for hearing.

24 Under OCGA § 9-6-41, a “writ of prohibition may be granted at any 

time, on proper showing made.”

25 “The writ of prohibition will not lie to the duly inaugurated Governor, 

but it lies to all other executive or military officers when acting as a judicial or 

quasi-judicial tribunal.” OCGA § 9-6-42.
34

its cognizance, or from exceeding its jurisdiction in matters of which 

it has cognizance.” Stokes v. Edwards, 272 Ga. 98, 98-99 (526 SE2d 

853) (2000) (citation and punctuation omitted). Therefore, this 

remedy “is available only where the court sought to be restrained 

lacks subject-matter jurisdiction or acts in excess of its jurisdiction 

[.]” Id. at 99. See also Ray v. Jolles, 280 Ga. 452, 453-54 (629 SE2d 

250) (2006) (affirming denial of writ of prohibition where probate 

court had subject matter jurisdiction and acted within its authority). 

The County argues that Judge Sweatt exceeded his jurisdiction 

in addressing the Electors’ Petition because the Resolutions were 

not subject to amendment or repeal under the special election

process set out in the Home Rule Paragraph. That argument is 

unavailing, however, because, as discussed in Division 2 (b), we 

conclude that the Home Rule Paragraph authorized Camden County 

electors to pursue a referendum seeking repeal of the Resolutions in 

this case. Accordingly, Judge Sweatt acted within the probate court’s 

subject-matter jurisdiction and the authority granted under the 

Home Rule Paragraph in calling for the Referendum, and the 
35

superior court was correct in denying the County’s petition for a writ 

of prohibition.

Judgment affirmed. All the Justices concur.
36

Appendix I

Home rule for counties

(a) The governing authority of each county shall 

have legislative power to adopt clearly reasonable 

ordinances, resolutions, or regulations relating to its 

property, affairs, and local government for which no 

provision has been made by general law and which is not 

inconsistent with this Constitution or any local law 

applicable thereto. Any such local law shall remain in 

force and effect until amended or repealed as provided in 

subparagraph (b). This, however, shall not restrict the 

authority of the General Assembly by general law to 

further define this power or to broaden, limit, or 

otherwise regulate the exercise thereof. The General 

Assembly shall not pass any local law to repeal, modify, 

or supersede any action taken by a county governing 

authority under this section except as authorized under 

subparagraph (c) hereof.

(b) Except as provided in subparagraph (c), a county 

may, as an incident of its home rule power, amend or 

repeal the local acts applicable to its governing authority 

by following either of the procedures hereinafter set forth:

(1) Such local acts may be amended or repealed by a 

resolution or ordinance duly adopted at two regular 

consecutive meetings of the county governing authority 

not less than seven nor more than 60 days apart. A notice 

containing a synopsis of the proposed amendment or 

repeal shall be published in the official county organ once 

a week for three weeks within a period of 60 days 

immediately preceding its final adoption. Such notice 

shall state that a copy of the proposed amendment or 

repeal is on file in the office of the clerk of the superior 

court of the county for the purpose of examination and 
37

inspection by the public. The clerk of the superior court 

shall furnish anyone, upon written request, a copy of the 

proposed amendment or repeal. No amendment or repeal 

hereunder shall be valid to change or repeal an 

amendment adopted pursuant to a referendum as 

provided in (2) of this subparagraph or to change or repeal 

a local act of the General Assembly ratified in a 

referendum by the electors of such county unless at least 

12 months have elapsed after such referendum. No 

amendment hereunder shall be valid if inconsistent with 

any provision of this Constitution or if provision has been 

made therefor by general law.

(2) Amendments to or repeals of such local acts or 

ordinances, resolutions, or regulations adopted pursuant 

to subparagraph (a) hereof may be initiated by a petition 

filed with the judge of the probate court of the county 

containing, in cases of counties with a population of 5,000 

or less, the signatures of at least 25 percent of the electors 

registered to vote in the last general election; in cases of 

counties with a population of more than 5,000 but not 

more than 50,000, at least 20 percent of the electors 

registered to vote in the last general election; and, in cases 

of a county with a population of more than 50,000, at least 

10 percent of the electors registered to vote in the last 

general election, which petition shall specifically set forth 

the exact language of the proposed amendment or repeal. 

The judge of the probate court shall determine the 

validity of such petition within 60 days of its being filed 

with the judge of the probate court. In the event the judge 

of the probate court determines that such petition is valid, 

it shall be his duty to issue the call for an election for the 

purpose of submitting such amendment or repeal to the 

registered electors of the county for their approval or 

rejection. Such call shall be issued not less than ten nor 

more than 60 days after the date of the filing of the 
38

petition. He shall set the date of such election for a day 

not less than 60 nor more than 90 days after the date of 

such filing. The judge of the probate court shall cause a 

notice of the date of said election to be published in the 

official organ of the county once a week for three weeks 

immediately preceding such date. Said notice shall also 

contain a synopsis of the proposed amendment or repeal 

and shall state that a copy thereof is on file in the office of 

the judge of the probate court of the county for the 

purpose of examination and inspection by the public. The 

judge of the probate court shall furnish anyone, upon 

written request, a copy of the proposed amendment or 

repeal. If more than one-half of the votes cast on such 

question are for approval of the amendment or repeal, it 

shall become of full force and effect; otherwise, it shall be 

void and of no force and effect. The expense of such 

election shall be borne by the county, and it shall be the 

duty of the judge of the probate court to hold and conduct 

such election. Such election shall be held under the same 

laws and rules and regulations as govern special 

elections, except as otherwise provided herein. It shall be 

the duty of the judge of the probate court to canvass the 

returns and declare and certify the result of the election. 

It shall be his further duty to certify the result thereof to 

the Secretary of State in accordance with the provisions 

of subparagraph (g) of this Paragraph. A referendum on 

any such amendment or repeal shall not be held more 

often than once each year. No amendment hereunder 

shall be valid if inconsistent with any provision of this 

Constitution or if provision has been made therefor by 

general law.

In the event that the judge of the probate court 

determines that such petition was not valid, he shall 

cause to be published in explicit detail the reasons why 

such petition is not valid; provided, however, that, in any 
39

proceeding in which the validity of the petition is at issue,

the tribunal considering such issue shall not be limited by 

the reasons assigned. Such publication shall be in the 

official organ of the county in the week immediately 

following the date on which such petition is declared to be 

not valid.

(c) The power granted to counties in subparagraphs 

(a) and (b) above shall not be construed to extend to the 

following matters or any other matters which the General 

Assembly by general law has preempted or may hereafter 

preempt, but such matters shall be the subject of general 

law or the subject of local acts of the General Assembly to 

the extent that the enactment of such local acts is 

otherwise permitted under this Constitution:

(1) Action affecting any elective county office, the 

salaries thereof, or the personnel thereof, except the 

personnel subject to the jurisdiction of the county 

governing authority.

(2) Action affecting the composition, form, procedure 

for election or appointment, compensation, and expenses 

and allowances in the nature of compensation of the 

county governing authority.

(3) Action defining any criminal offense or providing 

for criminal punishment.

(4) Action adopting any form of taxation beyond that 

authorized by law or by this Constitution.

(5) Action extending the power of regulation over 

any business activity regulated by the Georgia Public 

Service Commission beyond that authorized by local or 

general law or by this Constitution.

(6) Action affecting the exercise of the power of 

eminent domain.

(7) Action affecting any court or the personnel 

thereof.

(8) Action affecting any public school system.
40

(d) The power granted in subparagraphs (a) and (b) 

of this Paragraph shall not include the power to take any 

action affecting the private or civil law governing private 

or civil relationships, except as is incident to the exercise 

of an independent governmental power.

(e) Nothing in subparagraphs (a), (b), (c), or (d) shall 

affect the provisions of subparagraph (f) of this 

Paragraph.

(f) The governing authority of each county is 

authorized to fix the salary, compensation, and expenses 

of those employed by such governing authority and to 

establish and maintain retirement or pension systems, 

insurance, workers' compensation, and hospitalization 

benefits for said employees.

(g) No amendment or revision of any local act made 

pursuant to subparagraph (b) of this section shall become 

effective until a copy of such amendment or revision, a 

copy of the required notice of publication, and an affidavit 

of a duly authorized representative of the newspaper in 

which such notice was published to the effect that said 

notice has been published as provided in said 

subparagraph has been filed with the Secretary of State. 

The Secretary of State shall provide for the publication 

and distribution of all such amendments and revisions at 

least annually.

Ga. Const. of 1983, Art. IX, Sec. II, Par. I
41

BETHEL, Justice, concurring dubitante. 

I am satisfied that the Court has carefully, faithfully, and 

accurately applied the proper tools and framework to determine the 

meaning of the petition and referendum provisions of subparagraph 

(b) (2) of the Home Rule Paragraph in our Constitution. 

Nevertheless, I am thoroughly uncertain that the meaning we thus 

discern is what the people intended when they included the Home 

Rule Paragraph in the Constitution. My uneasiness is compounded 

by the fact that the structure of the paragraph itself is decidedly 

unhelpful. Moreover, I have concerns about the burden this 

interpretation will place on Georgia’s counties and, in due time, 

municipalities. But, in our system of limited government, our duty 

is to hold parties to the language they use and not to save them from 

it. Thus, my concurrence is given albeit with significant doubt and 

discomfort. 

As explained in the opinion of the Court, the Home Rule 

Paragraph was crafted by the General Assembly and incorporated 

into the State Constitution by a vote of the people to give certain 
42

legislative powers to counties so that the counties would have 

greater power to manage their own affairs. The General Assembly 

made a nearly identical provision for Georgia’s municipalities 

through statutory measures. See OCGA § 36-35-3. Both 

constitutional home rule for counties and statutory home rule for 

municipalities include a virtually identical petition and referendum 

mechanism that is the focus of the case before us. Our first effort at 

interpreting this language in the context of the municipal home rule 

statute led us to a conclusion opposite of the one we reach today. See 

generally Kemp v. City of Claxton, 269 Ga. 173 (496 SE2d 712) 

(1998). The absence of any discernable effort to change the rule after 

its articulation in Kemp leads me to believe that the rule articulated 

there may be the rule desired by, or at least acceptable to, the people 

and their legislative representatives. 

Moreover, as the majority notes, these home rule measures 

were adopted against the backdrop of a state legislature with a 

reputation for being stridently opposed to implementing home rule

provisions. See R. Perry Sentell, Jr., The Georgia Home Rule System, 
43

50 Mercer L. Rev. 99, 105-106 (II) (A) (1998). The interpretation we 

provide today, however, seems to open a very broad path to extensive 

efforts outside the control of the General Assembly to tinker with 

the day to day operational decisions of local governments that seems 

at odds with what we might have expected to be a limited 

experiment in home rule. Instead, Georgia appears to have chosen 

to allow for petition and referendum challenges to virtually every 

decision of local governments. This would constitute a giant leap 

toward what nears a direct democracy model for local government. 

Of course, it is not inconceivable to imagine that the legislature’s 

hostility to home rule was really rooted in a distrust of local elected 

officials rather than an aversion to ceding any of the legislature’s 

own power to the counties. If that was the case, then allowing home 

rule with a strong check from the local citizenry via the petition and 

referendum process may not seem so odd. But the lack of 

contemporaneous evidence of that understanding makes that 

explanation seem unlikely to me.

To say that the constitutional Home Rule Paragraph has 
44

drafting problems is kind. The structure of subparagraph (b) also 

adds to my doubt about our resolution of the question before us. It 

is quite confounding that the initial text of subparagraph (b) 

indicates that the subparagraph will provide for the methods of 

amending or repealing “the local acts applicable to its governing 

authority” only to have the provisions of (b) (2) provide for the ability 

to amend or repeal a much broader and materially different set of 

actions by the local government. Additional concern is generated by 

the provisions of subparagraph (g), which provides that an 

“amendment or revision of any local act made pursuant to 

subparagraph (b)” will not be effective until certain filings are made 

with the Secretary of State and requires that the Secretary of State 

subsequently provide for at least annual publication and 

distribution of the amendment or revision. (Emphasis supplied.) Ga. 

Const. of 1983, Art. IX, Sec. II, Par. I (b). This subparagraph can 

only be reasonably understood to apply to changes to local acts 

applicable to the governing authority of the county. It makes no 

allowance for referenda related to operational decisions. But 
45

subparagraph (b) (2), which encompasses more than “local acts,” 

requires the probate judge to certify the results of the election on the 

referendum “to the Secretary of State in accordance with the 

provisions of subparagraph (g)[.]” Ga. Const. of 1983, Art. IX, Sec. 

II, Par. I (b). The majority acknowledges that subparagraph (g) “on 

its face applies only to local acts, which as discussed above, are 

distinct from ordinances, resolutions, or regulations.” But what, 

exactly, the Secretary of State is supposed to do with that 

certification when it does not relate to local acts applicable to the 

governing authority remains an open question. I will not delve 

further into the tangle. I only note that the clumsiness of the 

structure casts doubt on the true meaning of the text.26

 26 As a former member of both a city council and the General Assembly, 

I appreciate the challenges of the drafting process and the many ways 

confusing language and structure can make their way into language ultimately 

adopted by a legislative body. The structure we find here, however, should 

serve as an encouragement to all those involved in the drafting process to 

continually look at the document as a whole to ensure clarity. Regrettably, 

what we are left with in subparagraph (b) is the equivalent of a provision that 

indicates it will provide travel directions to Atlanta, only to include directions 

to Darien, Dalton, Hahira, and Hiawassee, as well. The reader is left to wonder 

whether the error was in the description of the contents or in the contents 

themselves.
46

The next chapter in this story could be challenging. Our 

reading of the language here, of course, signals a looming stare 

decisis analysis for our holding in Kemp. Whatever the result of that 

analysis may be, our holding here will, I expect, usher in a frightful 

season for local governments in Georgia. While getting 10-25% of 

registered voters (depending on population) to sign a petition to force 

a referendum should not be described as “easy,” it will undoubtedly 

prove more realistic for those who are concerned about matters 

related to local alcohol ordinances, zoning ordinances and decisions, 

taxation rates, and budgeting decisions than it might be to collect 

sufficient signatures to challenge the structural “governing 

authority” questions otherwise found in subparagraph (b). I worry 

that a considerable minority group or groups within a community 

will be empowered to regularly subject their local community to the 

expense of a series of referenda as a means of either protest or in an 

attempt to thwart the will of a fatigued majority in a low turnout 
47

election.27 I hope I am wrong.

Nevertheless, despite my doubts, I am compelled to concur. But 

it is not because the Court reaches the outcome I prefer. And it is 

not because I believe my concerns will prove to be unfounded. 

Rather, I concur because we exercise only judicial power and that 

power is limited. Here, that power extends to a determination of the 

meaning and impact of words the people ratified as the framework 

by which they consent to be governed. The interpretation the Court 

reaches is not beyond critique. Indeed, the confusing nature of the 

operative language might afford many readings. But, the Court has 

reached the most plausible reading that gives the greatest effect to 

the language in the document. All competing readings I have 

identified have greater challenges and deficiencies than the one we 

reach today. So, I concur, dubitante.

I am authorized to state that Chief Justice Boggs joins in this 

concurrence. 

 27 How hard will it be to collect signatures on a petition to repeal the 

adoption of a resolution increasing or merely setting the millage rate?