Ellis v. Johnson

• Decision Date: 29 May 2012
• Docket Number: No. S12A0315.,S12A0315.
• Citation: 12 FCDR 1758,728 S.E.2d 200,291 Ga. 127
• Parties: ELLIS v. JOHNSON et al.
• Court: Georgia Supreme Court

291 Ga. 127
728 S.E.2d 200
12 FCDR 1758

ELLIS
v.
JOHNSON et al.

No. S12A0315.

Supreme Court of Georgia.

May 29, 2012.

[728 S.E.2d 201]

George P. Donaldson, III, Richard W. Fields, Perry & Walters, LLP, Albany, for appellant.

Kermit S. Dorough, Jr., Kermit S. Dorough, Jr., LLC, Albany, Jesse G. Bowles, III, Attorney at Law, Cuthbert, for appellee.

NAHMIAS, Justice.

[291 Ga. 127]Appellant Donna Ellis appeals from the probate court's ruling that OCGA § 15–9–120(2) is not a special law in violation of Article III, Section VI, Paragraph IV(a) of the 1983 Georgia Constitution. We affirm.

1. On June 22, 2009, Appellant filed a petition in the Probate Court of Dougherty County to probate a will of Hubert Johnson executed on May 28, 2009. Appellant is the primary beneficiary under [291 Ga. 128]that will, in which the testator describes her as a “friend and neighbor.” On July 22, 2009, Appellee Henry Johnson, the decedent's son and sole heir, filed a caveat. On October 16, 2009, Appellee Kendall Hash, the decedent's great niece, moved to intervene on the ground that the decedent had named her the primary beneficiary in a June 30, 2008, will. On February 10, 2011, the probate court granted Hash's motion to intervene.

The following day, Hash filed a demand for jury trial under OCGA § 15–9–121(a), which grants the right to a jury trial in a “probate court” that meets the requirements set forth in OCGA § 15–9–120(2). At that time, “[p]robate court” was defined in § 15–9–120(2) as

a probate court of a county having a population of more than 96,000 persons according to the United States decennial census of 1990 or any future such census in which the judge thereof has been admitted to the practice of law for at least seven years.¹

Appellant objected to Hash's jury demand on the ground that it was untimely, but on March 4, 2011, the probate court granted the demand.

However, the probate court later asked the parties to address whether it continued to have jurisdiction to hold jury trials in light of the 2010 decennial census, which showed that Dougherty County's population had dropped below 96,000 (to 94,565). In response, Appellant argued that § 15–9–120(2) does permit the probate court to continue to hold jury trials even though Dougherty County has fallen below the population threshold but, because it does so, the statute is an unconstitutional special law. The probate court also construed § 15–9–120(2) to say that once a county in which a probate court is located attains the population threshold set by the statute, the probate court will continue to have jurisdiction to hold jury trials even if the county's population drops below the

[728 S.E.2d 202]

threshold in a future decennial census. But so construed, the probate court ruled, § 15–9–120(2) is still not an unconstitutional special law.

[291 Ga. 129]After the probate court certified the case for immediate review, we granted Appellant's application for interlocutory appeal.

2. Appellant suggests that the constitutional issue she raises is moot because of OCGA § 1–3–1(d)(2)(D), which provides that the 2010 decennial census will not become effective for purposes of § 15–9–120(2) until July 1, 2012.² However, Appellant's complaint is that § 15–9–120(2) is a special law, a contention which, if true, would mean that § 15–9–120(2) was never a valid law, regardless of what counties may come within its terms when the 2010 census takes effect. See City of Atlanta v. Gower, 216 Ga. 368, 372, 116 S.E.2d 738 (1960). If appellant is correct that the statute is unconstitutional, then the Dougherty County Probate Court could not hold jury trials in any case, including this one, before or after July 1, 2012. Thus, the constitutional issue presented is not moot, and we will proceed to consider it on the merits. See Scarbrough Group v. Worley, 290 Ga. 234, 236, 719 S.E.2d 430 (2011).

3. Appellant argues that OCGA § 15–9–120(2) is an unconstitutional “special law.” Article III, Section VI, Paragraph IV(a) of the 1983 Georgia Constitution provides that:

Laws of a general nature shall have uniform operation throughout this state and no local or special law shall be enacted in any case for which provision has been made by an existing general law, except that the General Assembly may by general law authorize local governments by local ordinance or resolution to exercise police powers which do not conflict with general laws.

We have explained that a statute that defines its applicability by the population of counties or other governmental units, like OCGA § 15–9–120(2), must meet three requirements to be considered a constitutional general law rather than an unconstitutional special law:

1. The statute “must not only be open to let in counties later falling within the class, but must be open to let out a county that by increase or decrease according to the last census ceases to have the required population, so as not to freeze a county within the original population restriction.”

[291 Ga. 130]2. The population classification “must not be so hedged about and restricted as to apply to only one county, so that others coming within the class provided cannot also come within the purview of the statute.”

3. “[T]he classification by population must have some reasonable relation to the subject matter of the statute and a legitimate ground for differentiation.”

Dougherty County v. Bush, 227 Ga. 137, 138, 179 S.E.2d 343 (1971) (citations omitted).

The latter two requirements are not seriously contested in this case. OCGA § 15–9–120(2) is not so hedged and restricted as to apply to only one county. To the contrary, its population threshold applied to Georgia's 10 largest counties under the 1990 census, and it will apply to 27 counties when the 2010 census takes effect. Compare City of Atlanta v. Gower, 216 Ga. at 372, 116 S.E.2d 738. And the parties agree that the statute has a rational basis. As the probate court explained, § 15–9–120(2) eliminates the two-tiered lower court procedure (a probate court ruling followed by a de novo appeal to the superior court) “in those counties which are most heavily populated and consequently,...