657 F.2d 691 (5th Cir. 1981), 81-7363, Duncan v. Poythress

Docket Nº:81-7363.
Citation:657 F.2d 691
Party Name:Elizabeth B. DUNCAN, et al., Plaintiffs-Appellees, v. David B. POYTHRESS, et al., Defendants-Appellants.
Case Date:September 28, 1981
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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657 F.2d 691 (5th Cir. 1981)

Elizabeth B. DUNCAN, et al., Plaintiffs-Appellees,


David B. POYTHRESS, et al., Defendants-Appellants.

No. 81-7363.

Unit B

United States Court of Appeals, Fifth Circuit

September 28, 1981

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Michael J. Bowers, Senior Asst. Atty. Gen., Patrick W. McKee, Asst. Atty. Gen., Don A. Langham, 1st Asst. Atty. Gen., Hamilton Lokey, Atlanta, Ga., for defendants-appellants.

William F. Rucker, William B. Hollberg, Atlanta, Ga., for plaintiffs-appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before FRANK M. JOHNSON, Jr. and HATCHETT, Circuit Judges, and SCOTT [*], District Judge.

HATCHETT, Circuit Judge:

In this appeal we review a decision of the district court holding that Georgia's special election statute, Ga.Code § 34-1514, requires the selection of a successor for a resigning member of the Georgia Supreme Court by means of a popular election. The district court committed no abuse of discretion in refusing to abstain from hearing this section 1983 civil rights action. 42 U.S.C.

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§ 1983. We agree with its conclusion that the due process clause of the fourteenth amendment to the United States Constitution protects against the disenfranchisement of a state electorate in violation of state election law. We also concur in the district court's conclusion that Georgia Code section 34-1514 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. Bowles.


Several registered voters of Georgia brought this action in district court claiming that the refusal of state officials to call a special election to fill a position on the Georgia Supreme Court violated their constitutionally protected right to vote. The voters named as defendants George D. Busbee, the Governor of Georgia; Jesse G. Bowles, a former associate justice of the Georgia Supreme Court whose resignation triggered the events leading up to this suit; Hardy Gregory, Jr., an associate justice appointed by Governor Busbee to replace Justice Bowles on the supreme court; and David B. Poythress, the Georgia Secretary of State with responsibility for the calling of special elections for positions on the Georgia Supreme Court. 1 The Georgia Constitution provides for the popular election of justices on the state's highest court, Ga.Const. art. 6, § 2, P 3, and state law provides that "whenever any person elected to public office shall ... withdraw prior to taking office ... then (state officials) shall thereupon call a special ... election to fill such position." Ga.Code § 34-1514. 2

Justice Bowles held a term of office as an associate justice which ended on December 31, 1980. On November 4, 1980, he was re-elected to the Georgia Supreme Court for a six-year term to begin on January 1, 1981. On November 20, 1980, however, he wrote a letter of resignation to Governor Busbee stating that his resignation would be effective on December 31, 1980. The governor accepted this resignation by letter dated November 21, 1980.

On December 15, 1980, Justice Bowles took the oath of office for the new term of office scheduled to begin on the first day of 1981. On January 5, 1981, his first day in office during the new term, Justice Bowles sent a second letter of resignation to the governor. The governor accepted this resignation on the same day. Three days later, on January 8, the governor swore in Hardy Gregory, Jr., as a replacement for Justice Bowles on the Georgia Supreme Court.

The circumstances surrounding this unusual sequence of events have been described in great detail in the carefully written opinion of the district court. The record fully supports the district court's description of the attempts by Georgia officials to fill the judicial vacancy through executive appointment. The district court also described the efforts of the voters who brought this suit to assure the calling of a special election. We attach as an appendix that portion of the district court's opinion describing the underlying circumstances of this case. To address the points raised on appeal, however, we need focus only upon three of the district court's findings of fact. Though disputed on appeal by the Georgia officials, each of these findings is well supported by the record and is affirmed in this

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appeal for reasons discussed in the final portion of this opinion.

First, the district court found that Justice Bowles intended to vacate both the term he was then serving and the upcoming term to which he had been elected when he delivered his first letter of resignation on November 20, 1980. The court stated that the contention of the Georgia officials that Justice Bowles intended to resign only from his current term is "neither logical nor, when viewed in light of all the evidence, credible." In reaching this conclusion, the district court emphasized that

(w)hile it is unusual for any public official who intends to continue holding office to submit a letter of resignation, it is extremely odd, as the defendants concede, for a resignation allegedly applicable only to that official's current term to be effective on the day that term would naturally expire as a matter of law. On the other hand, an official who intends to give up his office altogether might very well make his resignation effective on the last day of his present term since that is a logical and convenient termination date.

The district court also noted that Justice Bowles took no steps to correct the widespread public impression that he would be leaving office forever on the last day of 1980. Justice Bowles never asked the governor to halt the search for his successor begun by the state's Judicial Nominating Commission in early December. As the district court stated:

(A)lthough the defendants testified that on the morning of January 5, 1981, Justice Bowles had not yet decided to resign, Governor Busbee had no knowledge of his imminent resignation, and Hardy Gregory had not had contact with the Governor since his December interview, Justice Bowles called Gregory, his replacement, that morning to discuss the transition.

Second, the district court found that the Georgia officials understood and responded to Justice Bowles's November resignation letter as a decision to leave the court permanently on the last day of his current term. The governor did not accept this resignation letter in the belief that it represented just a one-day resignation. Instead, the governor, Justice Bowles, Charles Tidwell (the governor's executive counsel in charge of judicial nominations), and the members of the Georgia Judicial Nominating Commission, all acted with the intention and expectation of replacing Justice Bowles through executive appointment. As noted by the district court:

The Governor, Justice Bowles, and Charles Tidwell considered and discussed the timing of the justice's impending resignation at meetings in the Fall of 1980. With the aid of the Governor's office, Bowles timed his resignation expressly to assist the Commission and the Governor in choosing his successor. The Governor's office initiated the Commission's search for Bowles' replacement, interviewed candidates, and apparently chose his successor before Bowles' second resignation was tendered on January 5, 1981. After the plaintiffs initiated their efforts, Busbee and Tidwell familiarized themselves with and discussed the special election statute at a meeting on November 24, 1980. The Governor subsequently stated at his December 4, 1980, press conference that he did not favor a special election to fill Justice Bowles' seat on the Supreme Court because of the cost involved and the probable low voter turnout ....

Third, the district court found that Justice Bowles did not intend to rescind his resignation by taking the oath of office for the upcoming term on December 15, 1980, and by briefly entering upon the duties of that office on January 5, 1981. Very little evidence was presented to indicate that Justice Bowles intended to rescind his earlier withdrawal, or that the governor consented to that rescission. In view of the ongoing search for Justice Bowles's successor, the district court found that his "taking the oath of office for his new term is more logically seen as an effort to ensure the appointment of his successor than as a genuine reconsideration of his decision to leave the court."

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In sum, the district court found that on November 20, 1980, Justice Bowles intended to resign permanently from the Georgia Supreme Court as of the last day of the term he was then serving. On November 21, 1980, the governor accepted this permanent resignation. The district court further found that throughout the following weeks there was no change in Bowles's intention to leave the court, or in the Governor's intention to select his successor.

Shortly after Justice Bowles sent his second resignation letter and Hardy Gregory was sworn in as his successor, several voters brought this action seeking the following equitable relief: a declaration that the refusal of Georgia officials to call a special election violated their rights of suffrage under the state and federal constitutions; an order requiring the calling of a special election so that the Georgia electorate could choose a successor for Justice Bowles; an order enjoining Justice Gregory from further service on the Georgia Supreme Court; and an order enjoining Justice Gregory from running in the requested special election as an incumbent. The voters sought damages in the amount of one dollar each as nominal...

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