Superior Court Jurisdiction in Property Tax Appeals

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  Is there Superior Court Jurisdiction in Property Tax Appeals to Binding Arbitration Under O.C.G.A. Section 48-5-311(f)? by Jon M. Ripans, Esq., Appraiser, Arbitrator/Mediator Georgia County Property Tax Hearing Officer Expert Witness
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  • 1. DR Currents A Publication of the Dispute Resolution Section of the State Bar of Georgia Summer 2012From the Chairby Hal GrayI hope that all of our Section members have circled become deeply familiar with the process. The Arbitration August 10 on their calendars and are planning on Institute provides aspiring arbitrators an excellent attending the Sixth Annual Arbitration Institute at the opportunity to see what arbitration really is, while atBar Center. As in the past, this Institute is co-sponsored by the same time providing “old war horse” arbitratorsthe State Bar DR Section and ICLE. information on current topics and techniques to improve their own arbitration practices. I urge both groups to attend Institute Co-Chairs Robbie Dokson and John Allgood our Institute in August, and I deeply thank Robbie andhave done an excellent job of finding “new” speakers John for all of their hard work and dedicated service to thefor the program - included are out-of-state and first-time Section.speakers Professor Tom Stipanowich of the Strauss Instituteat Pepperdine University, Neil Currie of the American I wish all of our members a most enjoyable rest-of-the-Arbitration Association and Doug Shontz of The RAND summer!Corporation. Robbie and John have likewise assembled My best regards.a first-rate group from the Atlanta area, including bothretired U.S. 11th Circuit Court Judge Stan Birch and Fulton County Senior Judge Phil Etheridge. Hal The Institute will address several current “hot topics” Hal Gray is the Managing Partner of Ragsdale, Beals, Seigler,(if anything related to arbitration can truly be called a Patterson & Gray, LLP. A graduate of the Emory University“hot topic”) such as consumer arbitration, e-discovery School of Law, he has practiced construction law and commercial and real estate litigation in Atlanta for over thirty years. He hasissues and class-action waivers. We’ll receive a report been a member of the AAA Mediation and its various Arbitrationregarding the first Atlanta International Arbitration Society Panels for twenty-five years and regularly works as a mediatorConference that was held in January as well as the future and arbitrator in construction and commercial disputes. Halof international arbitration in Atlanta. Additionally, currently serves as the Chair of the State Bar Dispute Resolutionethics/disclosure considerations will be addressed, as will Section and the Boards of Directors of the Construction Lawarbitration clause drafting, best and worst practices in and Dispute Resolution Sections of the Atlanta Bar. He is aarbitration and advocates’ and arbitrators’ views of each Fellow of the College of Commercial Arbitrators and a memberother - all-in-all, a little something for everybody. of the Georgia Arbitrators’ Forum and the Georgia Academy of Mediators and Arbitrators. Many people ask me “How can I become anArbitrator?” I tell them that one of the first steps is to Contents Neutrals: Pioneers of a New Frontier.......................................................................................................... 3 Is There Superior Court Jurisdiction in Property Tax Appeals to Binding Arbritration Under O.G.C.A. Section 48-5-311(F)?........................................................................................................ 4 Mediating Criminal Cases in Georgia.......................................................................................................... 6 Gender Bias in Mediation............................................................................................................................ 8 Manage Conflict; Don’t Just Wait to Resolve Disputes............................................................................. 11
  • 2. Neutrals: Pioneers of a New FrontierBy Bob Berlin & Carolyn L. RainesW hat is it that pushes us into new frontiers? Many of our courts are struggling with the ability to Curiosity? Of course! Like the mountain that efficiently move cases through the processes. Supreme loomed in front of us, the depth of the ocean Court of Georgia Chief Justice Carol Hunstein haswith its ebb and flow, the vastness of space where planets indicated that our judicial system is nearing a crisis. “… inand stars light the way, we have an innate curiosity to ask, recent years, the erosion of budgets in the face of growingwhat’s there and beyond? Is there a curiosity for “what’s caseloads has put us perilously close to being unable tonext” in the conflict resolution arena? You bet! You can be fulfill our constitutional mandates.” .a pioneer into a new frontier. There are answers, one we are calling a parallel justice Few of us are aware of the origin of the acronym ADR. system, which will free up our judicial system and keep itWe are quick to say Alternative Dispute Resolution. The moving like a well-oiled machine. Two of the processesoriginal word was discontinued in favor of Alternative that can be employed are, most likely, somewhat familiarto invite the legal/court system to entertain, use and, to you; i.e. Arbitration and Mediation. Less familiar arehopefully, incorporate the named processes as additional the hybrids: Med-Arb (Mediation and, if some issue(s)offerings. The original word was and is returning to the remain unresolved, submit those to Arbitration.); Arb-Medparlance. It is Appropriate Dispute Resolution. (Arbitrate the irresolvable and mediate the balance.) Let’s consider the words Appropriate (Adj. suitable There are other processes that have great potentialor fitting for a particular purpose, person, occasion.) and as well; i.e. Private Judging, Summary Jury Trials, Mini-Alternative (Adj. affording a choice of two or more things, Trials, Game Theory and many others. Let’s look at a fewpropositions, or courses of action.) case examples. Take a personal injury case. Question: Who had the red light? Both parties are pointing their finger at With the public demanding better and more affordable the other. An Arbitrator or Petit Panel (3 arbiters) hearsservices, should we respond with alternative processes each party’s case and makes a decision as to ‘who had thethat are more appropriate for the conflict and/or conflicted red light.’ Once that determination is made, the parties areparties? Let’s take the sage advice of Professor Frank E. then able to make a more definitive decision as to a nextA. Sander, Harvard Law School, “Let’s fit the forum to the step, if any.fuss; not the fuss to the forum!” 2 DR Currents
  • 3. Another example is the Domestic Relations case where As president of The New Decision Management Associates, Inc.parties have settled (in mediation) all issues except the Berlin has primary responsibility for Mediation, Negotiation, anddivision of personal property. An arbitrator can be called Arbitration services as well as Lead Trainer. He has experienceupon to listen to each party tell what they want and why, in handling in excess of 4200 civil and family law mediations since 1968. He is a graduate of the Walter F. George School ofmake an award (decision) and the issue is resolved. Law, Mercer University, receiving the LLB (J.D.) in 1963 and And the options don’t end there! Let’s list a few others was a senior partner in the law firm of Berlin and Hodges, P.C.(and, be aware, this is a partial list): for 39 years. He served as a Municipal Court Judge for 25 years. Bob served in the Georgia House of Representatives. His is an Different Arbitration Processes (Binding, Non- approved Mediator for the United States Postal Service, EEOC,Binding, High/Low, Baseball, Night Baseball); Silver and the FBI. Berlin presently serves on the Advisory CommitteeBullet Mediation; Conciliation; Neutral Evaluation; and, of the Training & Credentialing Committee of the Georgiathe tried and true ‘flip of the coin’ to name a few. Most of Commission on Dispute Resolution.the aforementioned processes guarantee confidentiality,efficiency and are economically advantageous. Many of As CEO of The New Decision Management Associates, Inc.the processes outcomes can, if needed, be submitted to the Raines is responsible for the operations, management and Co- Trainer. A graduate of Middle Georgia College she is a registeredcourts for enforcement without running the risk of appeal Mediator with the Georgia Office of Dispute Resolution, and hasand review. mediated large group conflicts on a national level. She comes All of this speaks to efficiency, economy and lots of to The New DMA from the non-profit sector with expertise incareer opportunities for neutrals. corporate management, institutional performance assessment, fund development, and behavior analysis. She currently serves on Who is available to perform these functions? Many the Citizen’s Panel Review Board for the Bibb County Juvenilefully trained and qualified Neutrals (Arbitrators, Mediators Court.and Case Evaluators, etc.) want and, in fact, are eagerto contribute. They left mediation or arbitration training (Endnotes) 1. 2012 STATE OF THE JUDICIARY ADDRESS THE HONORABLEthinking, “I can make a difference in this world. This is CHIEF JUSTICE CAROL HUNSTEIN Supreme Court of Georgia ,fulfilling my purpose in life.” Now’s the time to fulfill your House Chambers, Georgia State Capitolpurpose by becoming a true pioneer in our progress towardhelping the world become a more peaceful place. Dispute Resolution Executive Committee Herbert H. Gray III, chair Phil Armstrong, At-Large Taylor Tapley Daly, vice chair Bobby Glenn, At-Large Joan Grafstein, secretary/treasurer John Hinchey, At-Large Adam Sutton, DR Currents Editor Larry Christensen, At-Large John Sherrill, immediate past chair Ray Chadwick, At-LargeSummer 2012 3
  • 4. Is There Superior Court Jurisdictionin Property Tax Appeals to BindingArbritration Under O.G.C.A. Section48-5-311(F)?By Jon M. RipansU nder current Georgia law, property tax assessments superior court of the county where the land lies can be appealed in one of four ways. One is rather than the court itself. The court itself has directly to Superior Court with the approval of the no jurisdiction of the matter, but the judge of thatcounty Board of Tax Assessors. This appeal route clearly court has jurisdiction, but only an administrativevests the Superior Court with jurisdiction over the appeal. jurisdiction to appoint the third arbitrator. *554The three other methods remain at the administrative level. The person holding the office of judge is the oneThey are appeal to: 1) Board of Equalization, 2) County designated to do the appointing, not the courtHearing Officer, or 3) to Binding Arbitration. itself acting through the judge. No judicial power is conferred.2 Of those three, the latter has caused some confusionover filing fees, Superior Court settlement calendars, The second reason is that O.C.G.A. Section 48-5-judicial confirmation or other disposition of the arbitration 311(f) provides that upon receiving a demand for appeal toaward, and, most recently, Sheriff’s service of process binding arbitration, the board of tax assessors shall have tenfees. There are a number of reasons to believe that appeals days to provide the taxpayer with 1) an acknowledgementof property tax assessments to binding arbitration do not of the demand for binding arbitration and 2) notice thatconfer any jurisdiction to the Superior Court. the taxpayer shall have 45 days to provide a certified appraisal and “a confirmation of the amount of the filing First, O.C.G.A. Section 48-5-311(f), which governs fees, if any, required under Code Section 15-6-77 andproperty tax assessment notices appealed to binding notice that within 45 days the taxpayer shall pay to thearbitration, provides: clerk of the superior court the fees.” Superior Court civil If the parties cannot agree on the single arbitrator, action filing fees have been part of O.C.G.A. Section 15- the arbitrator shall be chosen by the chief judge 6-77 for years and no reasonable person would expect that of the superior court of the circuit in which the the Georgia Legislature is going to do away with them property is located.1 any time soon, particularly not during a time of state and In Board of Tax Assessors of Muscogee County v. local budget crises. So, why did the Legislature includeHeard, 118 Ga. App. 550 (1968), the Georgia Court of the phrase “if any” in O.C.G.A. Section 48-5-311(f)? If itAppeals considered the appointment of a third arbitrator were meant to be the typical superior court filing fees, theunder Code Section 92-6912, “relating to the arbitration of Legislature would have simply referenced the code sectiondisputes between the taxpayer and boards of tax assessors.” that contains the filing fee, as it has in so many other codeThat statute provided that once the taxpayer and the board of sections.3 Instead, it referred to O.C.G.A. Section 15-6-77tax assessors named their respective arbitrators, then the third with the conditional phrase “if any,” and that code sectionarbitrator “shall be named by the judge of the superior court makes no specific provision for filing fees for bindingof the county wherein the property lies” if neutrals selected arbitration of property tax appeals. The assignment ofby the parties cannot agree on a third arbitrator. The Court of a civil action file number can simply be viewed as anAppeals ruled that the appointment of the third arbitrator by administrative mandate to make sure the whole file does notthe judge of the Superior Court does not empower the judge get lost in a adjudicate any other matters, such as the qualifications The third reason is that O.C.G.A. Section 48-5-311(f)of any arbitrators, because the appointment of the third does not provide for service of process by the Clerk ofarbitrator itself does not confer any jurisdiction upon the Superior Court. Instead, the statute speaks of the boardSuperior Court. The Court of Appeals wrote: of tax assessors 1) certifying papers to the Clerk of It will be noted that the appointment of the third Superior Court and 2) simultaneously serving all papers arbitrator must be made by the judge of the and information certified to the clerk upon “the taxpayer 4 DR Currents
  • 5. and the taxpayer’s attorney of record, if any, or employee InstItute of ContInuIng LegaL eduCatIon In georgIawith a copy of the certification along with any other papers Friday • august 10, 2012specified by the person seeking arbitration along with the 6th ANNUALcivil action file number assigned to the appeal.” The fourth reason is that conferring jurisdiction ARBITRATIONupon the Superior Court raises a host of inconveniencesfor taxpayers, tax assessors, county attorneys, taxpayer INSTITUTE 6 CLE Hours includingattorneys, judges, staff attorneys, sheriffs, and others in 1 Ethics Hour • 1 Professionalism Hour • 3 Trial Practice Hoursconnection with service of process, settlement calendars,and possibly judicial confirmation. Co-sponsored by: statE Bar OF gEOrgia hEadquartErs dispute resolution 104 Marietta Street NW • Atlanta, Georgia 30303 So, why did the Legislature involve the chief judge section, for dirECTioNs PlEAsE VisiT HT TP://w w state bar of georgiaof the Superior Court at all if the parties could not agree To make hotel room reservations, call: Embassy Suites phone: 1-800-Hilton • The Glenn phone: 404-521-2250 Hilton Garden Inn phone: 404-577-2001 • The Omni phone: 800-843-6664upon a property tax arbitrator? My guess, based upon the Ask for the State Bar of Georgia’s negotiated corporate rate.nature of the dispute and the predecessor statutes, is that Duplicate registrations may result in thrEE ways tO rEgistEr: check the ICLE schedule on the web at www.iclega.orgthe Legislature wanted the authority to appoint the property Mail: ICLE • P.O. Box 1885 • Athens, GA 30603-1885 (make check payable to ICLE) Fax: 706-354-4190 (credit card payment must accompany fax to be processed) multiple charges to your account. A $15 administrative fee will apply to refundstax arbitrator to be vested in someone who would be Online: (credit card payment only) required because of duplicate registrations. © 2012 Institute of Continuing Legal Education in Georgia Questions? Call ICLE Atlanta Area: 770-466-0886 • Athens Area: 706–369–5664 • Toll Free: 1–800–422–0893perceived as sufficiently neutral, would not be so detached arBitratiON iNstitutE • August 10, 2012 • 8017as to appear not to be local (such as the Department of NAME ____________________________________________________ GEORGIA BAR # ____________________Revenue), would carry some authority, and would not be FIRM/COMPANY ____________________________________________ vEMAIL __________________________________________________ OFFICE PHONE (________) ___________ (for registration confirmation and email notificationseen as imposing requirements and obligations that were of seminars, no postcard or brochures will be sent) MAILING ADDRESS __________________________________________ ZIP + 4 ________- ______not meant to apply, such as by having the Georgia Real STREET ADDRESS (for UPS) ___________________________________ ZIP + 4 ________- ______ CITY ________________________________ STATE ________________ EarLy rEgistratiON FEE: $165Estate Commission and Appraisers Board be responsible q i am sight impaired under the ada, and i will contact iCLE immediately to make arrangements. ON-sitE rEgistratiON FEE: $185for appointing Certified General Real Property Appraisers q q q I am unable to attend. Please send written materials and bill me for the cost of materials only. Sorry, no phone orders! I have enclosed a check for the early registration fee received 48 hours before the seminar. I authorize ICLE to charge the early registration fee to my q MASTERCARD q VISA q AMERICAN EXPRESS*and Certified General Residential Appraisers as arbitrators.4 Account # / Credit Card Verification Number: A three-digit number usually located on the back of your credit card; *AmEx is four-digits on the front of the card. Expiration Date: Signature:Copyright 2012 by Jon M. Ripans. All Rights Reserved.A longer version of this article can be found at www.valuationmatters.netand at AGENDA The registration fee for all seminars held at the State Bar of Georgia has been reduced by ICLE in recognition of the Bar’s service to Georgia attorneys. Jon M. Ripans is a Certified General Real Presiding: Robert N. Dokson, Program Co-Chair, Ellis Funk, P.C., Atlanta John F. Allgood, Program Co-Chair, Ford Harrison, LLP, Atlanta Property Appraiser, Member of the State Bar 7:45 REGISTRATIOn AnD COnTInEnTAL BREAkFAST 10:45 THE ARBITRATIOn CLAUSE: MORE THAn An of Georgia, Registered Neutral (Arbitration and (All attendees must check in upon arrival. A jacket or sweater is recommended.) AFTERTHOUGHT (OR IT SHOULD BE!) Moderator: Patrick G. Jones, Henning Mediation & Arbitration Service Inc.; Friend, Hudak & Harris LLP, General Mediation) with the Georgia Office of 8:20 OPEnInG REMARkS Herbert H. “Hal” Gray, III, Chair, Dispute Resolution Atlanta Panelists: Dispute Resolution, Secretary to the Property Section, State Bar of Georgia; Ragsdale Beals Seigler Patterson & Gray, Atlanta Patricia G. Butler, Assistant General Counsel, Turner Broadcasting System, Inc., Atlanta Tax Subcommittee of the Real Property Law 8:25 WELCOME AnD PROGRAM OVERVIEW Douglas Shontz, The RAND Corporation, Arlington, VA A study of corporate counsel’s attitudes and Robert N. Dokson perceptions of commercial arbitration. Section of the State Bar of Georgia, and a John F. Allgood 11:45 LUnCH (Included in registration fee) Georgia property tax arbitrator and Georgia 8:30 IS ARBITRATIOn BROkEn AS A FAIR FORUM FOR THE LITTLE GUY? 12:15 BEST AnD WORST PRACTICES In ARBITRATIOn:property tax County Hearing Officer. Jon also serves as a COnSIDERInG THE ARBITRATIOn FAIRnESS SEASOnED ADVOCATES’ VIEWS On ARBITRATORS AnD
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