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Wednesday, January 30, 2013 - 1:28pm

Judge, Ga. Secretary of State Clash

A long-running border dispute between two Middle Georgia counties has ballooned into a power struggle between the judiciary and the state.

Monroe County wants Georgia Secretary of State Brian Kemp to enforce a controversial border giving them a stretch of valuable land that neighboring Bibb County also claims.

Kemp's year-old position is that—due to various accidents of history—there is no legal border between the two counties for him to enforce.

Now Fulton Superior Court Judge Kelly Lee is ordering Kemp to do what Monroe County wants, invoking a legal concept known as “mandamus,” which essentially holds that courts can force government officials to perform their basic functions.

The application of mandamus to this situation is a bit of a stretch, said Mercer University law professor David Oedell.

"For ministerial actions, like delivering a paper that’s already signed and executed by the proper officer, a judge can order somebody to deliver the paper," Oedell said, citing the U.S. Supreme Court precedent Marbury v. Madison. "But for discretionary matters, [judges] don’t get the same right."

Kemp is appealing Judge Lee's decision, and Oedell expects a higher court will rule in Kemp's favor.

"He’s a constitutional officer who has discretion under the statutes of Georgia to try to work out these disputes between the counties," Oedell said. "Now [Judge Lee] is just telling him essentially how to do his job, and she is really stepping into it, it seems to me."

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