Gonzalez v. Kemp
| Decision Date | 02 July 2020 |
| Docket Number | CIVIL ACTION FILE NO. 1:20-CV-2118-MHC |
| Citation | 470 F.Supp.3d 1343 |
| Parties | Deborah GONZALEZ, April Boyer Brown, Linda Lloyd, Adam Shirley, and Andrea Wellnitz, Plaintiffs, v. Brian KEMP, Governor of the State of Georgia, and Brad Raffensperger, Secretary of State, State of Georgia, Defendants. |
| Court | U.S. District Court — Northern District of Georgia |
Bruce P. Brown, Bruce P. Brown Law, Atlanta, GA, for Plaintiffs.
Elizabeth T. Young, Miles Christian Skedsvold, Georgia Attorney General's Office, Atlanta, GA, for Defendants.
This case comes before the Court on a Motion for Preliminary Injunction filed by Plaintiffs Deborah Gonzalez ("Gonzalez"), April Boyer Brown ("Brown"), Linda Lloyd ("Lloyd"), Adam Shirley ("Shirley"), and Andrea Wellnitz ("Wellnitz") (collectively "Plaintiffs") [Doc. 5]. The Court has considered all of the briefs filed by the parties1 as well as oral argument held on June 25, 2020.
The Georgia Constitution provides for the creation of the office of district attorney for each judicial circuit in the State of Georgia, stating in pertinent part as follows:
There shall be a district attorney for each judicial circuit, who shall be elected circuit-wide for a term of four years. The successors of present and subsequent incumbents shall be elected by the electors of their respective circuits at the general election held immediately preceding the expiration of their respective terms. District attorneys shall serve until their successors are duly elected and qualified. Vacancies shall be filled by appointment of the Governor.
GA. CONST. art. VI, § VIII, ¶ I(a). With respect to the procedure for the filling of vacancies for the office of district attorney after a gubernatorial appointment, O.C.G.A. § 45-5-3.2(a) provides as follows:
In those instances where the Governor fills a vacancy in the office of district attorney pursuant to Article VI, Section VIII, Paragraph I(a) of the Constitution, the vacancy shall be filled by the Governor appointing a qualified individual to the office of district attorney who shall serve until January 1 of the year following the next state-wide general election which is more than six months after the date of the appointment of such individual, even if such period of time extends beyond the unexpired term of the prior district attorney.
On November 8, 2016, Ken Mauldin ("Mauldin") was elected to serve as the District Attorney for the Western Judicial Circuit in the State of Georgia for a four-year term beginning January 1, 2017, and continuing to December 31, 2020. Compl. [Doc. 1] ¶ 29. On July 11, 2019, Gonzalez announced her candidacy for the Western Judicial Circuit District Attorney position for the term beginning January 1, 2021. Id. ¶ 30. On July 31, 2019, Mauldin announced that he would not run for re-election for the next four-year term beginning January 1, 2021, but that he still intended to finish his current term as the Western Judicial Circuit District Attorney. Id. ¶ 31. However, on February 5, 2020, Mauldin announced his resignation as district attorney, to become effective on February 29, 2020. Id. ¶ 32.
After Mauldin announced his resignation, Defendant Governor Brian Kemp ("Governor Kemp") sought applications from those wishing to be considered for appointment to the vacancy caused by Mauldin's resignation, and set February 20, 2020, as the due date for submission of applications. Id. ¶ 33. Had Mauldin not resigned, the qualifying period for candidates for this district attorney position would have been between March 2-6, 2020. Id. ¶ 34. On March 6, 2020, Gonzalez attempted to qualify for the office of District Attorney for the Western Judicial Circuit, but she was notified by a representative of Defendant Secretary of State Brad Raffensperger ("Secretary Raffensperger") that there would be no election for this position. Id. ¶ 35. The Western Judicial Circuit District Attorney position remains vacant because Governor Kemp has not yet appointed a successor to Mauldin.3 Id. ¶ 36.
Gonzalez resides in the Western Judicial Circuit and is a former member of the Georgia General Assembly, where she served as a state representative for Georgia House District 117 from November 2017 until January 2019. Id. ¶ 15. She is also a registered voter of the State of Georgia and intended to vote in the election for the District Attorney for the Western Judicial Circuit. Id. Brown, Lloyd, Shirley, and Wellnitz are all residents and registered voters within the Western Judicial Circuit and intended to vote in the same election.4 Id. ¶¶ 16-19.
Plaintiffs filed this lawsuit under 42 U.S.C. § 1983 and O.C.G.A. § 9-6-20 on May 18, 2020. The Complaint: (1) alleges a violation of the First and Fourteenth Amendment's fundamental rights to vote and candidacy because O.C.G.A. § 45-5-3.2 violates Article VI, Section VIII, Paragraph I(a) of the Georgia Constitution (Count I); (2) alleges a violation of the First Amendment's fundamental right to speech and association (Count II); and (3) seeks a petition for writ of mandamus directing Secretary Raffensperger to conduct an election for District Attorney for the Western Judicial Circuit for a term beginning on January 1, 2021 (Count III). Id. ¶¶ 39-65. Plaintiffs seek a preliminary injunction that would order Secretary Raffensperger to conduct the election for District Attorney for the Western Judicial Circuit on the same date as the 2020 general election currently set for November 3, 2020, and "to withhold application of any portion of O.C.G.A. § 45-5-3.2 in conflict with the Court's order." Pls.’ Mot. for Prelim. Inj. at 1-2.
In order to obtain a preliminary injunction, a plaintiff must demonstrate: (1) a substantial likelihood of success on the merits; (2) that irreparable injury will be suffered if the relief is not granted; (3) that the threatened injury outweighs the harm the relief would inflict on the non-movant; and (4) that granting the relief would not be adverse to the public interest. Scott v. Roberts, 612 F.3d 1279, 1290 (11th Cir. 2010) ; Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1225-26 (11th Cir. 2005). A preliminary injunction is an extraordinary remedy which a court should grant only when the movant clearly carries the burden of persuasion as to each of the four prerequisites. Four Seasons Hotels & Resorts, B.V. v. Consorcio Barr, S.A., 320 F.3d 1205, 1210 (11th Cir. 2003). The decision whether to grant preliminary injunctive relief is within the broad discretion of the district court. Democratic Party of Ga., Inc. v. Crittenden, 347 F. Supp. 3d 1324, 1339 (N.D. Ga. 2018).
In Count I, Plaintiffs claim that failing to hold an election for the Western Judicial Circuit District Attorney position for the term beginning January 1, 2021, pursuant to O.C.G.A. § 45-5-3.2 violates the Due Process Clause of the Fourteenth Amendment because it violates Article VI, Section VIII, Paragraph I(a) of the Georgia Constitution. Br. in Supp. of Pls.’ Mot. for Prelim. Inj. ( ) [Doc. 5-1] at 11-17. Plaintiffs rely on Duncan, 657 F.2d 691,6 for the proposition that failing to hold the election disenfranchises Plaintiffs "in violation of state law." Id. at 16.
In Duncan, the United States Court of Appeals for the former Fifth Circuit considered a Georgia statute that required a special election to fill a position when a candidate who was elected to public office withdrew after the election but prior to taking office. Duncan, 657 F.2d at 693 (citing former Ga. Code § 34-1514). On November 4, 1980, Jesse Bowles was elected to a six-year term as associate justice of the Supreme Court of Georgia, but resigned his position after the election and the Governor appointed his replacement. Id. at 693-95. The court indicated that the sufficiency of the plaintiffs’ complaint "turn[ed] on whether the state officials violated the Georgia special election statute, Ga. Code § 34-1514, and if so, whether this constituted a deprivation of federally protected rights." Id. at 700. The court answered in the affirmative:
If the Georgia officials denied the Georgia electorate the right granted by state statute to choose a replacement for Justice Bowles, then we are faced with "patent and fundamental unfairness" in the electoral process.... It is fundamentally unfair and constitutionally impermissible for public officials to disenfranchise voters in violation of state law so that they may fill the seats of government through the power of appointment. We therefore hold that such action violates the due process clause of the fourteenth amendment.
Critical to this determination was the court's holding that Georgia officials violated a state statute providing for the manner of filling a vacancy once an elected official withdrew from office. See id. at 708 (emphasis added) ("[W]e hold that the due process clause of the fourteenth amendment affords protection against the disenfranchisement of a state electorate in violation of state election law."). There is no dispute in this case that Secretary Raffensperger has complied with O.C.G.A. § 45-5-3.2. Duncan did not explicitly address whether there is a violation of federal due process if Georgia state election officials comply with a presumptively valid state election statute which then is found to violate the state constitution. Moreover, neither party has provided a case directly on point and analogous to the issue at hand.
Nevertheless, the Court finds it appropriate to apply Duncan’s holding here. The intuitive reading of Duncan’s use of "state law" suggests that the Fourteenth Amendment is violated when a state elections official violates either a state statute or a provision of a state's constitution. The Georgia Constitution itself indicates that it is the supreme law of the state: "Legislative acts in violation...
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