Clark v. Deal

• Decision Date: 26 April 2016
• Docket Number: Nos. S16A0559,S16X0560.,s. S16A0559
• Citation: 298 Ga. 893,785 S.E.2d 524
• Parties: CLARK et al. v. DEAL Deal v. Clark et al.
• Court: Georgia Supreme Court

298 Ga. 893

785 S.E.2d 524

CLARK et al.

v.DEAL

Deal

v.Clark et al.

Nos. S16A0559

S16X0560.

Supreme Court of Georgia.

April 26, 2016.

Wayne B. Kendall, Fayetteville, for appellants.

Samuel S. Olens, Atty. Gen., Dennis R. Dunn, Deputy Atty. Gen., Russell David Willard, Sr. Asst. Atty. Gen., Susan Rose Haynes, Asst. Atty. Gen., for appellees.

MELTON

, Justice.

In this action, John Clark, Ivory Kenneth Dious, Francys Johnson, Jr., Henry C. Ficklin, and Darryl A. Momon (collectively referred to as “Clark”) contend that Amanda H. Mercier, Nels S.D. Peterson, and Brian M. Rickman have no right to hold office as judges on our Court of Appeals.¹ Specifically, Clark contends that these new judges were improperly appointed by Governor Nathan Deal. For the reasons set forth below, we affirm the trial court's denial of Clark's petition for a writ of quo warranto.

1. The underlying facts of this case are not disputed. Effective on January 1, 2016, Act No. 138 (House Bill 279 or the “Act”) established three new seats on the Court of Appeals, amending OCGA § 15–3–1(a)

to provide for a total of 15 judges. In addition, OCGA § 15–3–4 was amended to add subsection (b), which provides in relevant part: “The additional judgeships created in 2015 shall be appointed by the Governor for a term beginning January 1, 2016, and continuing through December 31, 2018, and until their successors are elected and qualified.” Pursuant to the Act, Governor Deal appointed Mercier, Peterson, and Rickman to the new positions. A short time after the Governor announced the appointments, but before the announced appointees took office, Clark filed a petition to challenge the appointments in the Superior Court of Fulton County, naming as defendants the Governor in his official capacity, Mercier, Peterson, and Rickman. Clark argued that the gubernatorial appointment of Court of Appeals judges to newly created seats violated the Georgia Constitution, maintaining that new judges are required to be chosen by general election. Accordingly, Clark requested the following: (1) a declaratory judgment that the appointment provision of the Act is unconstitutional; (2) an injunction and temporary restraining order against the Governor to stop him from commissioning or administering the oath of office to the new judges; and (3) a writ of quo warranto against Mercier, Peterson, and Rickman.

The trial court denied Clark's petition on the merits. After considering the Georgia Constitution, related statutory authority, and the history of judicial appointments to the Court of Appeals, the trial court held that the 1983 Georgia Constitution permits the Governor to fill newly created seats on the Court of Appeals by appointment. Clark then appealed, and, in addition, filed an emergency motion for supersedeas, again to prevent the Governor from administering the oath of office to the appointees. This Court denied the emergency motion on December 18, 2015. The Governor also filed a cross-appeal, contending that the trial court erred in its determination that sovereign immunity did not protect him from the injunction and declaratory judgment action brought against him. The new Court of Appeals judges took office on January 1, 2016.

2. Initially, we must determine what part, if any, of Clark's action remains viable. Because the new judges have already taken office, those portions of Clark's action relating to the issuance of a declaratory judgment, injunctive relief, and a temporary restraining order against the Governor are now moot, as the very action which Clark sought to stop has already occurred. “[I]f the thing sought to be enjoined in fact takes place, the grant or denial of the injunction becomes moot.” (Citations and punctuation omitted.) Board of Commrs. of Richmond County v. Cooper, 259 Ga. 785, 387 S.E.2d 138 (1990)

. A case is moot when its resolution would amount to the determination of an abstract question not arising upon existing facts or rights. See Chastain v. Baker, 255 Ga. 432, 339 S.E.2d 241 (1986)

. Based on this same reasoning, the Governor's cross-appeal is moot as well. The Governor was never prevented from swearing in and commissioning the new judges, and, therefore, there is no longer any reason to consider whether Clark's unsuccessful attempt to enjoin and obtain a declaratory judgment against the Governor was barred by sovereign immunity. So, the only remaining part of this action which remains viable is Clark's petition for a writ of quo warranto, which became ripe at the time that the new judges assumed office. Accordingly, this opinion addresses only that portion of the underlying suit.

3. Throughout this litigation, Clark has contended that OCGA § 15–3–4(b)

is unconstitutional because the Georgia Constitution requires that Court of Appeals judges who fill newly created seats must be selected by a general nonpartisan election. The Constitution, itself, belies this claim in Article VI, which address the judicial branch of government.

Art. VI, Sec. VII, Par. I. does provide that

[a]ll superior court and state court judges shall be elected on a nonpartisan basis for a term of four years. All Justices of the Supreme Court and the Judges of the Court of Appeals shall be elected on a nonpartisan basis for a term of six years. The terms of all judges thus elected shall begin the next January 1 after their election. All other judges shall continue to be selected in the manner and for the term they were selected on June 30, 1983, until otherwise provided by local law.

Likewise, OCGA § 21–2–9(b)

provides that Court of Appeals judges “shall be elected in the nonpartisan general election next preceding the expiration of the term of office.” However, Art. VI, Sec. VII, Par. III expressly states that “[v]acancies shall be filled by appointment of the Governor except as otherwise provided by law in the magistrate, probate, and juvenile courts.” (Emphasis supplied.) Therefore, the Constitution clearly allows the Governor to appoint new judges when there is a vacancy on the Court of Appeals. The only remaining question, then, is whether a newly created position on the Court of Appeals qualifies as a “vacancy” under Art. VI, Sec. VII, Par. III. Both the appropriate rules of construction and the historical record indicate that it does.²

(a) In reviewing the propriety of OCGA § 15–3–4(b)

, it must be remembered that “all presumptions are in favor of the constitutionality of [a statute].” (Citation and punctuation omitted.) JIG Real Estate, LLC v. Countrywide Home Loans, Inc., 289 Ga. 488, 490(2), 712 S.E.2d 820 (2011). Furthermore, we must “presume that the words used in the Constitution bear their ordinary meanings at the time those words were included. See Warren v. State, 294 Ga. 589, 590, 755 S.E.2d 171 (2014).” Savage v. State, 297 Ga. 627, 635(4)(b), 774 S.E.2d 624 (2015). “ ‘Constitutions, like statutes, are properly to be expounded in the light of conditions existing at the time of their adoption.’ [Cit.]” Clarke v. Johnson, 199 Ga. 163, 166, 33 S.E.2d 425 (1945).

At the time that the Governor was given the power to appoint appellate judges to fill vacancies in the 1983 Constitution, Black's Law Dictionary stated that “vacancy,” when applied to official positions, meant, “in its ordinary and popular sense, that an office is unoccupied, and that there is no incumbent who has a lawful right to continue therein until the happening of a future event, though the word is sometimes used with reference to an office temporarily filled.” Black's Law Dictionary 1388 (5th ed.1979). As noted by the trial court, a standard dictionary likewise defined “vacancy” as follows: “1. The condition of being vacant or unoccupied. 2. An empty or unoccupied space. 3. A position, an office, or a place of accommodation that is unfilled or unoccupied.” The American Heritage Dictionary of the English Language 1969 (3d ed.1979). Our own cases, both before and after the ratification of the 1983 Constitution, give the term “ vacant” a similar definition. See Pittman v. Ingram, 184 Ga. 255, 256–257, 190 S.E. 794 (1937)

(“office is not vacant so long as it is supplied, in the manner provided by the constitution or law, with an incumbent who is legally qualified to exercise the powers and perform the duties which pertain to it”) (Citation and punctuation omitted.); Parkerson v. Hart, 200 Ga. 660, 664, 38 S.E.2d 397 (1946) (“[w]hen there is no one to fill the office, a vacancy exists”) (Citation punctuation omitted.); Garcia v. Miller, 261 Ga. 531(2), 408 S.E.2d 97 (1991) (office is not vacant so long as it is filled by an incumbent who is legally qualified to exercise the powers and perform the duties which pertain to it).

Therefore, the ordinary meaning of the term vacancy is, in essence, a public office without an incumbent. The newly created positions on the Court of Appeals certainly fit this definition. See also 63C AmJur2d Public Officers & Employees § 111

(“[A] newly created office, which is not filled by the tribunal which created it, becomes vacant on the instant of its creation, and remains so until it is filled by an incumbent. The term ‘vacancy’ thus applies to an existing office without an incumbent, though it has never been filled.”); Throop, A Treatise on the Law Relating to Public Officers and Sureties in Official Bonds § 431 (1892) (“An existing office without an incumbent is vacant, whether it be a new or an old office.”). Accordingly, the constitutionality of OCGA § 15–3–4(b) is supported by this ordinary definition and plain meaning.

Nonetheless, Clark contends that we should look to OCGA § 45–5–1³

to determine the meaning of “vacancy.” Clark argues that only the limited number of situations listed in that statute may be properly considered a vacancy, and a newly created position is not contained in this list. Clark's argument is misplaced for several reasons. First, it rests on the false premise that the list contained in OCGA § 45–5–1

may provide the sole definition of a...