CopyCited 2 times | Published | Supreme Court of Georgia | Jan 28, 2025 | 320 Ga. 733
...enough votes were cast in the wrong districts to call the election re-
sults into doubt. But as Nelson contends, the 2011 map never be-
came effective, because none of the filings with the Secretary of
State and clerk of the superior court required by OCGA §
36-35-5 to
make the charter amendment effective have been made....
...powers do not become effective “until a copy of the amendment or
revision . . . has been filed with the Secretary of State and in the
office of the clerk of the superior court of the county of the legal situs
of the municipal corporation.” OCGA §
36-35-5....
...That ordinance must be “duly adopted at
two regular consecutive meetings of the municipal governing au-
thority,” OCGA §
36-35-3 (b) (1), and the city must publish notice of
the proposed amendment beforehand, see id. And finally, at issue
here, OCGA §
36-35-5 requires certain filings to be made to make
the amendment effective....
...provided in this chapter, has been filed with the Secretary
8
of State and in the office of the clerk of the superior court
of the county of the legal situs of the municipal corpora-
tion.
OCGA §
36-35-5.
Under the plain language of OCGA §
36-35-5, an amendment
or revision of a charter made pursuant to a city’s home rule powers
is not effective until a copy of the charter amendment or revision
(among other things) has been filed with the Secretary of State and
the superior court clerk....
...So we conclude
that an amendment or revision of a charter made pursuant to a city’s
home rule powers is not effective until a copy of the amendment or
revision has been filed with the Secretary of State and the superior
court clerk.
The trial court erred by treating OCGA §
36-35-5 as “directory”
11
rather than mandatory because failing to file a copy of the amend-
ment did not “prejudice ....
...This is good enough, the Board says, and in
support, it relies on Jackson v. Fraternal Order of Police Atlanta
Lodge No. 8,
234 Ga. 906 (218 SE2d 633) (1975). In Jackson, we up-
held a city’s charter amendment where the city had already operated
3 The trial court also concluded that applying OCGA §
36-35-5 to “inval-
idate” the 2011 map would “violat[e]” the constitutional mandate of “one per-
son, one vote.” The trial court’s order offers no basis for that statement in the
law or the record of this case, and it is not clear what role, if any, it played in
the trial court’s analysis....
...een competing plausible
interpretations of a statutory text, resting on the reasonable presumption that
[the legislature] did not intend the alternative which raises serious constitu-
tional doubts.”) (citation and punctuation omitted), which OCGA §
36-35-5 is
not, so any such argument would fail....
...sites, nonetheless requires actual compliance as to all matters of
substance,” and that “minor discrepancies in format or phraseology
are acceptable, but the omission of substantive elements is not”) (ci-
tations and punctuation omitted). But as we just discussed, OCGA
§
36-35-5 does not impose a duty or command the doing of anything;
it simply identifies conditions that must be satisfied before a charter
amendment becomes effective, and it denies permission to treat such
an amendment as effective in the absence of those conditions....
...a municipal charter amendment is recorded in the published laws of
the State.4 In any event, making no filings of any kind could hardly
be considered “substantial compliance” with a statutory require-
ment that consists entirely of making filings, see OCGA §
36-35-5.
Because the conditions set by OCGA §
36-35-5 for making the
charter amendment here effective were not satisfied, the 2011 elec-
tion map for the City of Waycross was not effective at the time of the
2023 election at issue.5 And with that premise gone, Strickland’s
challenge fails. The challenge relied on the assumption that the 2011
4 The statute requires the Secretary to “provide for the publication and
distribution of all such amendments and revisions at least annually,” see
OCGA §
36-35-5, and an affidavit from a member of the Secretary’s office con-
firms that municipal charter amendments are published in the Official Code
of Georgia Annotated, under Local and Special Laws, once they are filed with
that office.
5 Nothing in this decision should be read to preclude the City from mak-
ing the filings required by OCGA §
36-35-5 to make the 2011 map effective.
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map was in effect and thus should have been used for the 2023 elec-
tion....