Davis v. Shavers

• Decision Date: 26 January 1998
• Docket Number: No. S97G1113,S97G1113
• Parties: DAVIS et al. v. SHAVERS.
• Court: Georgia Supreme Court

Page 23

495 S.E.2d 23

269 Ga. 75

DAVIS et al. v. SHAVERS.

No. S97G1113.

Supreme Court of Georgia.

Jan. 26, 1998.

Reconsideration Denied Feb. 23, 1998.

R. Leslie Waycaster, Jr., Jeffrey Jerome Dean, Waycaster, Morris, Johnson & Dean, Dalton, for James Travis Davis.

John O. Wiggins, Wiggins Law Firm, Ringgold, for Glenn Shavers.

Gerald Richard Weber, Jr., American Civil Liberties Union, Atlanta, for Amicus Appellant.

CARLEY, Justice.

Appellants filed recall applications against certain officials of the City of Fort Oglethorpe, including Glenn Shavers. When those officials sought judicial review of the legal sufficiency of the applications, a trial court found them to be legally insufficient, and this court affirmed. Davis v. Shavers, 263 Ga. 785, 439 S.E.2d 650 (1994). Shavers then brought suit for libel based upon statements made in the recall application against him. A jury returned verdicts against Appellants and the trial court entered judgment on those verdicts. The Court of Appeals held that allegations in a recall application against an elected official are only conditionally, and not absolutely, privileged. Davis v. Shavers, 225 Ga.App. 497, 498-500(1), 484 S.E.2d 243 (1997). However, the Court of Appeals reversed the lower court's judgment based upon errors in the jury charge. Davis v. Shavers, 225 Ga.App., supra at 500-502(3), 484 S.E.2d 243. We granted certiorari to determine whether statements in a recall application are conditionally or absolutely privileged. Because we hold that such statements are not absolutely privileged, we affirm the judgment of the Court of Appeals.

As a general rule, statements regarding public figures are not absolutely privileged. Under OCGA § 51-5-7(9) and New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), a public official or a candidate for public office may recover on his libel claim, so long as he demonstrates, by clear and convincing evidence, that the statements complained of were made with actual malice. Gardner v. Boatright, 216 Ga.App. 755, 455 S.E.2d 847 (1995); Collins v. Cox Enterprises, Inc., 215 Ga.App. 679, 452 S.E.2d 226 (1994); Thibadeau v. Crane, 131 Ga.App. 591, 593-594(3), 206 S.E.2d 609 (1974).

Appellants contend that both public policy and OCGA § 51-5-8 require that statements in recall applications be absolutely privileged. Under OCGA § 51-5-8, "[a]ll charges, allegations, and averments contained in regular pleadings filed in a court of competent jurisdiction, which are pertinent and material to the relief sought," are absolutely privileged. The Court of Appeals has stated that the privilege established by OCGA § 51-5-8 generally includes " 'official court documents' and acts of 'legal process.' [Cits.]" Williams v. Stepler, 227 Ga.App. 591, 595(3), 490 S.E.2d 167 (1997). However, the Recall Act provides for only limited judicial review of the legal sufficiency of the recall application, and prohibits discovery or evidentiary hearings and any determination of the truth of the statements in the application. OCGA § 21-4-6(f). The reasons for these strict limitations is "that the electorate, rather than the judiciary, ... determine[s] the ultimate truth or falsity of the allegations of misconduct...." Collins v. Morris, 263 Ga. 734, 737(1), 438 S.E.2d 896 (1994). Thus, the recall procedure is not a "judicial" or even "official" procedure, but is political in nature, and the issue to be determined is of a political character. Gunsul v. Ray, 6 Cal.App.2d 528, 45 P.2d 248, 249 (1935). Furthermore, public policy does not support an interpretation of OCGA § 51-5-8 which leaves public officials with no remedy for allegedly libelous statements made with actual malice in the context of a procedure having only the slightest hint of a judicial nature. To the contrary it is the policy of this state to restrict the rule of absolute privilege in the law of libel to "narrow and well-defined limits." Fedderwitz v. Lamb, 195 Ga. 691, 697, 25 S.E.2d 414 (1943). Accordingly, while we recognize the importance that criticism of the conduct of public officials plays in the administration of their offices, we conclude that, consistent with New York Times Co. v. Sullivan, supra, Appellants are entitled to the protection of a conditional privilege only. Kramer v. Ferguson, 230 Cal.App.2d 237, 41 Cal.Rptr. 61, 64 (1964). See also Gunsul v. Ray, supra. Therefore, the Court of Appeals correctly resolved this issue.

Judgment affirmed.

All the Justices concur, except FLETCHER, P.J., who dissents.

FLETCHER, Presiding Justice, dissenting.

By holding that voters who file a recall application have only a conditional privilege, the majority has unnecessarily eroded the right of recall. Few individuals will sign a recall petition, much less lead a recall effort, when they may face the possibility of a libel action for their participation. Because the court's opinion will have a chilling effect on political speech and the recall statute already provides sufficient safeguards to protect elected officials from false allegations, I dissent.

1. The Recall Act of 1989 outlines the procedure for seeking recall of public officials. ¹ To initiate the process, electors who are registered voters in the official's district file an application for a recall petition with the election superintendent. ² The application must include a statement of the grounds for recall, a brief statement of the facts on which the grounds are based, and an affidavit by the chairperson and circulator that each person signing the application is an elector and the facts alleged are true. ³ If the election superintendent determines that the application is legally sufficient and the signers are qualified electors, the official certifies the application, issues official recall petition forms, and notifies the targeted public officer that a recall petition has been officially issued for circulation. ⁴

The public officer may then challenge the application by seeking judicial review in superior court. ⁵ The court reviews both the grounds for recall and their factual basis to determine whether they are legally sufficient. ⁶ First, the grounds for recall must correspond to the reasons set forth in the statute and may not include discretionary acts. ⁷ Second, the factual allegations must be stated with reasonable particularity and be more than mere conclusions. ⁸ Third, the allegations must specify conduct that would constitute a statutory ground for recall. ⁹ "[I]t is imperative that the application state with clarity and specificity the facts supporting the grounds for recall such that both the public and the official sought to be recalled are properly notified of the violation alleged to have been committed." ¹⁰

Although the superior court does not hold an evidentiary hearing or determine the truth of the factual allegations, its review is often decisive. ¹¹ In the recall effort that led to this libel action, for example, the application alleged that city council member A. Glenn Shavers violated the Code of Ethics for Government Service in amending the retirement system ordinance by resolution rather than by ordinance and in voting an advance salary to another council member. Despite the specificity of these allegations, we affirmed the trial court's findings that the recall applications were legally insufficient, concluding that they failed to notify the public why the facts alleged might constitute an act of malfeasance or misconduct in office. ¹²

Thus, the superior court plays a critical role in reviewing the application to prevent recall petitions based on bare allegations or notice pleading. In the language of civil procedure, the superior court treats the public official's challenge as a motion to dismiss and, assuming the facts alleged are true, determines whether they are sufficient as a matter of law to state a ground for recall. It is only after the superior court rules that the application is legally sufficient that the sponsors may circulate the recall petition. ¹³ This judicial review distinguishes this state's procedure from the procedure in other states where appellate courts have found only a conditional or qualified privilege for electors who sign a recall petition. ¹⁴

2. Since the underlying principle for a privilege is public policy, ¹⁵ the decision to grant an absolute or conditional privilege requires a balancing of the competing interests. Weighing in favor of the privilege in this case is society's interest in a free and full discussion of the performance of public officials in their office; opposing the grant of a privilege is the interest of public officials in their personal and professional reputation. Since recall is constitutionally based in Georgia, public policy favors providing a meaningful process. ¹⁶

Both the United States and Georgia Constitutions guarantee free speech. ¹⁷ A citizen's right to criticize public officials for their conduct in office is an essential element of this constitutional right.

Those who won our independence believed ... that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.... Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed. ¹⁸

Permitting libel actions against individuals involved in the recall process will have a chilling effect on the exercise of this...