Barrow v. Beskin

• Decision Date: 14 May 2020
• Docket Number: S20A1029,S20A1031
• Citation: Barrow v. Beskin, 308 Ga. 660, 842 S.E.2d 884 (Ga. 2020)
• Parties: BARROW v. RAFFENSPERGER. Beskin v. Raffensperger.
• Court: Georgia Supreme Court

308 Ga. 660

842 S.E.2d 884

BARROW

v.RAFFENSPERGER.

Beskin

v.Raffensperger.

S20A1029

S20A1031

Supreme Court of Georgia.

Decided: May 14, 2020

Pope McGlamry KilpatrickMorrison Norwood, Wade H. Tomlinson III, Charles W. Byrd, George "Buddy" Darden, Michael J. Moore, Michael P. Morrill, Elizabeth S. White ; Akin & Tate, S. Lester Tate III ; for appellant.

Christopher M. Carr, Attorney General, Russell D. Willard, Senior Assistant Attorney General, Elizabeth T. Young, Elizabeth A. Penland, Bryan K. Webb, Assistant Attorneys General, Andrew A. Pinson, Solicitor-General, for appellee.

Krevolin Horst, Joyce G. Lewis, Adam M. Sparks ; Hanrahan Freitag Family Law, Monica J. Hanrahan, amici curiae.

Nahmias, Presiding Justice.

These cases involve challenges to Secretary of State Brad Raffensperger's decision to cancel the election originally scheduled for May 19, 2020, for the office of Justice of the Supreme Court of Georgia held by Justice Keith R. Blackwell.Justice Blackwell's current term is set to end on December 31, 2020, and the next standard six-year term for his office would begin on January 1, 2021.¹However, on February 26, Justice Blackwell submitted a letter to Governor Brian P. Kemp resigning from his office effective November 18, 2020.The Governor accepted Justice Blackwell's resignation and announced that he would appoint a successor to the office.Justice Blackwell continues to serve as a full-fledged Justice of this Court, and he plans to do so until November 18.

The Secretary canceled the May 19 election for the next term of Justice Blackwell's office on the ground that his resignation, once it was accepted, created a vacancy that the Governor could fill by appointment, and thus no election was legally required.The appellants in these cases, John Barrow and Elizabeth A. Beskin, each then tried to qualify for that election but were turned away by the Secretary's office.They each then filed a petition for mandamus in the Fulton County Superior Court, seeking to compel the Secretary to allow qualifying for, and ultimately to hold, the May 19 election for the next term of Justice Blackwell's office.Beskin also asserted that the Secretary's decision violated her federal constitutional rights.The trial court denied the mandamus petitions and rejected Beskin's federal claims, agreeing with the Secretary that a current vacancy was created in Justice Blackwell's office when his resignation was accepted by the Governor, which gave rise to the Governor's power to appoint a successor.

Barrow and Beskin appeal from the trial court's orders.They both argue that the court should have granted their petitions because there is no current vacancy in Justice Blackwell's office that the Governor can fill by appointment before the May 19 election and because the Secretary has no discretion to cancel a statutorily required election.Beskin also argues that she is entitled to relief based on her federal claims.

As explained in detail below, we hold that while the trial court's reasoning was mistaken, its conclusion that the Secretary of State could not be compelled by mandamus to hold the May 19 election for Justice Blackwell's office was correct.Under the Georgia Constitution and this Court's precedent, a vacancy in a public office must exist before the Governor can fill that office by appointment, and a vacancy exists only when the office is unoccupied by an incumbent.Because Justice Blackwell continues to occupy his office, the trial court erred in concluding that his office is presently vacant; accordingly, the Governor's appointment power has not yet arisen.

Unlike earlier Georgia Constitutions, however, our current Constitution, which took effect in 1983, clearly provides that when an incumbent Justice vacates his office before the end of his term, his existing term of office is eliminated, and the successor Justice appointed by the Governor serves a new, shortened term that is unrelated to the previous incumbent's term.Consequently, even if Justice Blackwell's office is not vacant yet, if his accepted resignation will undoubtedly create a vacancy in his office on November 18, his term of office will go with him, and the next six-year term of his office that would begin on January 1, 2021, will never exist.The next election will be in 2022, for the next term of the appointed Justice's office; the May 19, 2020, election for the next term of Justice Blackwell's office will be legally meaningless (as well as misleading to voters and the public); and the Secretary cannot be compelled by mandamus to conduct a legally nugatory election.

These cases therefore turn on the question of whether Justice Blackwell's prospective resignation, accepted by the Governor, is irrevocable, so that a vacancy in his office is inevitable by November 18.Barrow argues that Justice Blackwell could lawfully withdraw his resignation before its effective date, whereas Beskin contends that the prospective resignation, having been accepted by the Governor, is irrevocable.We conclude as a matter of Georgia law that a Justice's unequivocal, written resignation, once unequivocally accepted, cannot be withdrawn, even with the consent of the Governor.Accordingly, Justice Blackwell's office will become vacant no later than November 18, and the May 19 election for his office would be an election to fill a future term that will never exist.The trial court therefore properly denied Barrow's and Beskin's petitions for a writ of mandamus requiring the Secretary to conduct that legally nugatory election.Because Beskin's federal claims are derivative of her claim that the Secretary violated state election law, those claims fail as well.In sum, although the trial court's reasoning was wrong, its ultimate judgments were right, and we therefore affirm them.SeeMerchant Law Firm, P.C. v. Emerson , 301 Ga. 609, 614, 800 S.E.2d 557(2017)(affirming a trial court's dismissal of a mandamus claim as "right for any reason").

1.Stipulated facts and procedural hyistory.

In the trial court, the parties stipulated to the following pertinent facts.²Justice Blackwell originally took office on this Court in July 2012 after his appointment to fill a vacancy.He was then elected in May 2014 to serve a six-year term of office as a Justice beginning on January 1, 2015, and ending on December 31, 2020.His office was initially scheduled for election in the nonpartisan general election on May 19, 2020, for the six-year term beginning on January 1, 2021, with candidates scheduled to qualify for that election between March 2 and March 6, 2020.

On February 26, however, Justice Blackwell submitted a letter to Governor Kemp tendering his "resignation from the Supreme Court, effective November 18, 2020."The Governor responded by letter to Justice Blackwell dated the same day, saying: "I appreciate you taking the time to apprise me of your resignation, effective November 18, 2020.Your resignation as Justice of the Supreme Court of Georgia is hereby accepted[.]"Justice Blackwell continues to occupy his office as a Justice of this Court and to perform the ordinary duties and functions pertaining to that office.

On March 1, the Governor notified the Secretary of State that he intended to fill Justice Blackwell's office (and some other offices) by appointment.Following that notice, the Secretary decided to cancel candidate qualifying for the May 19 election for Justice Blackwell's office and directed his staff to publicize that decision and not to accept qualifying documents and fees for the election for that office.Barrow and Beskin each then attempted to qualify for election to Justice Blackwell's office, but the Secretary's staff refused to accept their qualifying documents and fees.Later that week, Beskin qualified as a candidate for election to the office currently held by Justice Charles J. Bethel, which was also scheduled to take place on May 19.

Barrow and Beskin each then filed a petition for mandamus against the Secretary in Fulton County Superior Court, asking the court to order the Secretary to reopen qualifying and hold the election for Justice Blackwell's office for the term beginning on January 1, 2021.In addition, Beskin sought injunctive relief under 42 USC § 1983 and attorney fees and litigation costs under 42 USC § 1988, claiming that the Secretary acted under color of state law to violate her "right and privilege to qualify as a candidate for office and to vote for the candidate of her choice" under the United States Constitution.

After a joint hearing on the cases on March 13, the trial court denied both mandamus petitions on March 16 in separate but similar orders, concluding that pursuant to OCGA § 45-5-1 (a)(2), Justice Blackwell's office was vacated when the Governor accepted his resignation, triggering the Governor's appointment power and rendering an election for the office for the term beginning on January 1, 2021, no longer legally required.The court summarized its analysis as follows:

This Court finds that, under the express language of the Georgia ConstitutionandOCGA § 45-5-1, a vacancy existed for Justice Blackwell's seat as of February 26, 2020 and once Governor Kemp notified the Secretary of State of Governor Kemp's decision to fill the seat via appointment, Secretary Raffensperger no longer was under a statutory legal duty to hold qualifications for Justice Blackwell's seat.

The court also denied Beskin's federal claims, concluding that she failed to state a claim under 42 USC § 1983 because she did not "show that her fundamental right to vote has been denied or violated by the Governor's lawful use of the appointment power in this case."The court"assume[d], without deciding, that Petitioner Beskin's claims are not moot."

On March 18, Barrow filed an emergency motion in the Court of Appeals asking for expedited consideration of an appeal from the trial court's order.The motion was transferred to this Court on March 19 because the case...