A few comments on 2007 legislation in Georgia

Perhaps the General Assembly has lost its collective head, something long ago suspected. Anyway, its collective heart is in the right place as evidenced by its increased interest in incorporating ADR into legislative proposals, but it should consult some experts when it attempts to create new forms and applications of ADR.

In 2007, several bills made it to the governor's desk (and beyond) with the most screwed up notions of arbitration. The most notable has to be S.B.19, codified as OCGA 32-6-171(2)(c, d, & e). This is a procedure to resolve disputes over claims by the Department of Transportation that utility companies have caused damages or delay costs in the removal or relocation of utilities in the path of a project. It is called a "mediation," but it is clearly an adjudicative process by a "mediation board" that makes a final decision by majority on issues submitted. The Fulton County Superior Court gets to perform de novo reviews if a party seeks it within 30 days of being served the "final decision."

My favorite is H.B. 2, codified as OCGA 36-36-114 through 119. This is a procedure for the arbitration of annexation disputes between counties and municipal corporations. This is an entirely new arbitration scheme completely independent from the Georgia Arbitration Code. Putting aside some of the weak procedural elements for now, the weakest part of the scheme is the creation of the pool of arbitrators for the five-member (yes, five) arbitral panels. Actually, there are to be three pools, one of elected municipal officials, one of elected county officials, and one of "persons with masters degrees or higher in public administration or planning and who are currently employed by an institution of higher education in this state." As it turns out, a literal reading of the requirements for the last pool excludes most law faculty members in the state, many of which are otherwise experts in annexation, zoning, and county and municipal law problems. Seems a small thing, but the Department of Community Affairs, charged with administrating the scheme, and the Vinson Institute, charged with training the pools, had a really hard time putting this together. Rumor has it that at the initial training, the attorneys for the county and municipal associations couldn't agree on the meaning and application of the new law.