Duncan v. Poythress

Citation515 F. Supp. 327
Decision Date28 April 1981
Docket NumberCiv. A. No. 81-199 A.
PartiesElizabeth B. DUNCAN, et al. v. David B. POYTHRESS, et al.
CourtU.S. District Court — Northern District of Georgia

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Kathleen Kessler, William F. Rucker, William B. Hollberg, Atlanta, Ga., for plaintiffs.

Arthur K. Bolton, Atty. Gen., Michael J. Bowers, Senior Asst. Atty. Gen., Atlanta, Ga., for defendants.

ORDER

RICHARD C. FREEMAN, District Judge.

Plaintiffs bring this civil rights action, 42 U.S.C. § 1983, alleging violations of the equal protection and due process clauses of the Fourteenth Amendment of the United States Constitution, in that they were denied the right to vote for Associate Justice of the Supreme Court of Georgia in a special election. They contend that defendants Governor George D. Busbee and former Associate Justice Jesse G. Bowles of the Supreme Court of Georgia manipulated the events surrounding Justice Bowles' resignation from the court to permit the Governor to appoint Bowles' successor. Plaintiffs also assert a pendant state claim of fraud. This court has jurisdiction pursuant to 28 U.S.C. § 1343.

Plaintiffs seek both declaratory and injunctive relief and damages. Plaintiffs ask that this court order that a special election be held to fill Justice Bowles' unexpired term on the Supreme Court, and that Justice Gregory, currently serving Justice Bowles' term, be enjoined from further serving that term and from running as an incumbent in the special election. Plaintiffs seek one million dollars in exemplary damages from defendants Bowles and Busbee to be paid into the state treasury to help finance the election. In addition, plaintiffs ask for one dollar each in compensatory damages for violation of their constitutional rights, and for attorney's fees and costs.

On February 26, 1981, the court accelerated trial on the merits with plaintiff's request for preliminary injunctive relief, and the case was tried to the court on March 26 and 27, 1981. Rule 65(a)(2), Fed.R.Civ.P. The following order shall serve as the court's findings of fact and conclusions of law. Rule 52(a), Fed.R.Civ.P.

I. STATEMENT OF THE FACTS

The Constitution of the State of Georgia provides for the popular election of state Supreme Court justices to six-year terms. If a vacancy occurs during an unexpired term,1 however, the Governor appoints a successor.

The Justices ... shall hold their offices for six years, and until their successors are qualified. They shall be elected by the people at the same time and the same manner as members of the General Assembly. In case of any vacancy which causes an unexpired term, the same shall be filled by executive appointment, and the person appointed by the Governor shall hold his office until the next regular election, and until his successor for the balance of the unexpired term shall have been elected and qualified. The returns of such elections shall be made to the Secretary of State, who shall certify the result to the Governor, and commission shall issue accordingly.

Ga.Code § 2-3103. The election law of Georgia also provides that whenever a person elected to a public office withdraws before taking office, the vacancy is to be filled by a special election called by the Secretary of State.

Whenever any primary or election shall fail to fill a particular nomination or office and such failure cannot be cured by a run-off primary or election, or whenever any person elected to public office shall die or withdraw prior to taking office, or whenever any person elected to public office shall fail validly to take that office, then the authority, with whom the candidates for such nomination or office filed their notice of candidacy, shall thereupon call a special primary or election to fill such position.

Ga.Code § 34-1514. The plaintiffs predicate their constitutional claims on these provisions, contending that a special election should have been called to elect a new justice to the court after November 20, 1980, when Justice Bowles resigned his seat effective December 31, 1980. The facts from which this claim arose are set out in full below.

Plaintiffs are registered voters in Fulton County and DeKalb County, Georgia. Defendants are George D. Busbee, Governor of the State of Georgia; Jesse G. Bowles, former Associate Justice of the Supreme Court of Georgia; Hardy Gregory, Jr., Associate Justice of the Supreme Court of Georgia; and David B. Poythress, Secretary of State, State of Georgia. Defendants Gregory and Poythress were joined as defendants in this action solely for the purpose of affording plaintiffs complete relief.

On April 25, 1977, Jesse G. Bowles was appointed by Governor Busbee as an Associate Justice of the Supreme Court of Georgia. Justice Bowles was subsequently elected, on November 7, 1978, to fill a term of office as an Associate Justice until December 31, 1980. The justice encountered personal problems during his tenure on the court, however. Family arrangements required that the justice commute from Cuthbert in southern Georgia to Atlanta on a weekly basis, and the necessity and expense of supporting two homes caused financial and marital strain. The problems became so acute that, in October 1979, the justice met with Governor Busbee to discuss the possibility of resigning from the court. The Governor urged Justice Bowles to continue on the court at that time, and the justice agreed.

On June 11, 1980, Justice Bowles qualified to run in the Democratic primary for election to a full term on the court. Unfortunately, the justice's personal situation continued to deteriorate throughout 1980, and he continued seriously to consider resigning from the court. On August 5, 1980, Justice Bowles was nominated in the Democratic Party primary for election to the office of Associate Justice of the Supreme Court of Georgia.

In early August 1980, Bowles attempted to discuss the potential effects of his withdrawal from the race with someone at the Democratic Party headquarters. Receiving no useful information there, Bowles sought out Charles Tidwell, the Governor's executive counsel in charge of judicial nominations, to explore the statutory provision, party rules, and prior practices regarding resignations from the court. The two men discussed the mechanics by which a substitute nominee would be chosen in the time periods preceding the general election as specified by statute. See Ga.Code § 34-1003. Tidwell told Bowles that the Governor would have some influence in the selection process, but would not be able to control it. Bowles asked Tidwell to review the election laws to determine the effect of his resignation.

In September 1980, Justice Bowles informed Tidwell that he was intending to resign. Bowles, Tidwell, and Busbee met on September 24 to discuss the justice's resignation. The three men discussed the possible procedural and political ramifications of various resignation dates. The three men testified that they were not aware of and did not discuss at that time the provision in the Georgia Code providing for a special election when an official elected at a general election withdraws before taking office. Ga.Code § 34-1514. Justice Bowles left the meeting with the Governor and Mr. Tidwell stating that he would not resign at that time.

Justice Bowles was reelected to office on November 4, 1980. Nevertheless, he continued to deliberate as to whether, when, and how he should resign. Charles Tidwell knew that the Judicial Nominating Commission2 (Commission), which screens applicants for appointment to the state court benches, would be meeting on December 11 and 12, 1980, to discuss candidates for appointment to the soon-to-be-vacant seat of George T. Smith on the Georgia Court of Appeals.3 The Commission met infrequently, only at the Governor's request, and needed at least three weeks to distribute notices of a particular vacancy so that applicants would have a chance to respond and be considered at the next meeting. Aware of the Commission's time schedule and hoping to avoid duplicative effort by the Commission, Tidwell called Justice Bowles in an attempt to coordinate the Smith and Bowles resignations. Mr. Tidwell informed the justice that the last possible day to resign and trigger the nominating process for his seat would be November 20, 1980.

Justice Bowles wrote a letter of resignation dated November 20, 1980, and delivered it to Mr. Tidwell on that date. The letter did not include an effective date, however. The two men discussed the omission, Mr. Tidwell advising the justice that the effective date was his decision. Justice Bowles then included the words "effective December 31, 1980" on the letter. Plaintiffs' Exhibit A. Mr. Tidwell informed the Commission that day to begin seeking and screening candidates for Justice Bowles' seat. The resignation was accepted by Governor Busbee by letter dated November 21, 1980.4 Plaintiffs' Exhibit C.

Sometime prior to November 21, 1980, Justice Bowles had asked Charles Webb, administrative aide to the Chief Justice, to prepare a press release on his resignation, but to hold the release until notified by Justice Bowles. The justice wanted a release prepared to be sent to county weekly publications around Cuthbert, Georgia, where he planned to return to practice law. The press release was prepared on Supreme Court stationary and stated that Justice Bowles "has resigned to return to the private practice of law at Cuthbert," and that he had written Governor Busbee asking "that his resignation be made effective as of Dec. 31." Plaintiffs' Exhibit M. The story of the resignation had by this time been reported in the press, and Mr. Webb called the justice to suggest that the statement be released. The justice agreed. Mr. Webb read him the text of the statement over the phone, and it was dated and distributed on November 21, 1980.5

Chief Justice Undercofler also released a short statement on November 21,...

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9 cases
  • Bachur v. Democratic Nat. Party
    • United States
    • U.S. District Court — District of Maryland
    • July 29, 1987
    ...right to participate in the electoral process once a State has chosen to select its public officials by popular vote. Duncan v. Poythress, 515 F.Supp. 327, 336 (N.D.Ga.), aff'd, 657 F.2d 691 (5th Cir. 1981), cert. granted, 455 U.S. 937, 102 S.Ct. 1426, 71 L.Ed.2d 647, cert. dismissed, 459 U......
  • Barrow v. Beskin
    • United States
    • Georgia Supreme Court
    • May 14, 2020
    ...avoidance of an election disenfranchises voters and is violative of the constitutional provision requiring elections. Duncan v. Poythress , 515 F. Supp. 327 (N.D. Ga. 1981), aff'd 657 F.2d 691, found that the violation of that right entitled the deprived voters to sue for that deprivation:I......
  • Duncan v. Poythress
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • September 28, 1981
    ...mandates the calling of a special election under the circumstances of this case. We therefore affirm the decision of the district court, 515 F.Supp. 327, to order the calling of a special election to fill the vacancy on the Georgia Supreme Court created by the resignation of Justice Jesse G......
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    • United States
    • U.S. District Court — District of Columbia
    • September 18, 2012
    ...(“mere election irregularities rarely rise to the level of a federal constitutional violation.”); cf. Duncan v. Poythress, 515 F.Supp. 327, 336–37 (N.D.Ga.1981) (federal courts “are neither empowered nor equipped to supervise the administration of local elections”). Because Plaintiff has no......
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