Anderson v. Flake, S96A1979

• Court: Supreme Court of Georgia
• Writing for the Court: SEARS; At the hearing
• Citation: 267 Ga. 498,480 S.E.2d 10
• Parties: , 97 FCDR 206 ANDERSON v. FLAKE.
• Docket Number: No. S96A1979,S96A1979
• Decision Date: 21 January 1997

Page 10

480 S.E.2d 10 267 Ga. 498, 97 FCDR 206 ANDERSON
v.
FLAKE. No. S96A1979. Supreme Court of Georgia. Jan. 21, 1997.
Reconsideration Denied Feb. 14, 1997.

Page 11

[267 Ga. 502] J.M. Raffauf, Gerard John Lupa, Decatur, for Anderson.

Michael J. Bowers, Attorney General, John C. Jones, Senior Assistant Attorney General, Stacey L. Ferris-Smith, Assistant Attorney General, Atlanta, for Flake.

[267 Ga. 498] SEARS, Justice.

This appeal is brought from the trial court's dismissal of Petitioner's Information in the Nature of Quo Warranto ("the Petition"), challenging Respondent's eligibility to hold office as a Judge of the DeKalb County Superior Court. We find that the trial court erred (1) by failing to make the relevant inquiries in deciding Respondent's motion to dismiss, and (2) by basing its dismissal on the erroneous [267 Ga. 499] conclusion that the Petition failed on its face to raise any question of fact regarding Respondent's residential qualification to sit as an elected judge in DeKalb County. Therefore, we reverse.

In November 1996, Respondent Gail C. Flake was re-elected to the office of Judge of the Superior Court of DeKalb County. Shortly before the primary to that election contest, Petitioner Carla Anderson, a citizen of DeKalb County, filed a verified Quo Warranto Petition. ¹ In the Petition, Anderson asserted the following facts: (1) that beginning in 1993, Judge Flake owned an undivided one-half interest in property located in Newton County ("the Property"); (2) that Judge Flake and the Property's co-owner, Robert P. Jarvis, built a residence on the Property; (3) that thereafter, a homestead tax exemption was applied for in the names of both Judge Flake and Jarvis; ² and (4) that after the homestead tax exemption was applied for, Jarvis transferred his one-half interest in the Property to Judge Flake, making her the sole owner of the Property. The Petition correctly stated (1) that Georgia law allows a homestead tax exemption only for a taxpayer's permanent "legal residence and domicile," of which there can be only one, ³ and (2) that our State Constitution requires judges of the superior courts to reside in the geographic district in which they serve. ⁴ Based upon these facts and legal

Page 12

principles, the Petition reasoned that "[Judge] Flake cannot sit as a Judge in DeKalb County if she is a resident of Newton County," and alleged that Judge Flake's holding of office in DeKalb County violates Georgia's Constitution and laws.

In response to the Petition, Judge Flake filed a motion to dismiss, in which she asserted that because the Petition did not affirmatively state that she is a resident of Newton County, it failed to allege that her legal residence disqualified her from holding office in DeKalb County. Prior to the commencement of a hearing scheduled on the motion to dismiss, Anderson filed an amendment to the Petition, which stated that "[b]ased on information and belief Gail C. Flake is a resident of Newton County Georgia and is not qualified to hold office of Judge of Superior Court of DeKalb County." At the commencement of the hearing that followed, the trial court accepted the [267 Ga. 500] amendment as filed.

At the hearing, Judge Flake's counsel argued that the amendment to the Petition should be stricken because it was unverified, and also argued that the Petition failed to state a claim in quo warranto upon which the relief sought could be granted. ⁵ Anderson responded to the first of these arguments by disputing the necessity of verifying a petition in quo warranto, but nonetheless offered to verify the amendment in open court, if the trial court so desired. Anderson also argued that the Petition satisfactorily stated a claim in quo warranto. At the conclusion of the hearing, the trial court dismissed the Petition.

A written order subsequently was issued, which dismissed the Petition because, according to the trial court, it showed only that a homestead tax exemption was applied for by Jarvis, and raised no question regarding Judge Flake's residential qualification to hold office in DeKalb County. Also, contrary to the ruling in open court, the written order dismissed the amendment to the Petition because it was "hastily drawn, unverified, appeared to be an afterthought...