Gundy v. Balli

• Decision Date: 19 January 2022
• Docket Number: A21A1763
• Citation: 868 S.E.2d 296,362 Ga.App. 304
• Parties: GUNDY v. BALLI et al.
• Court: Georgia Court of Appeals

362 Ga.App. 304

868 S.E.2d 296

GUNDY

v.BALLI et al.

A21A1763

Court of Appeals of Georgia.

January 19, 2022

James Gabriel Banks, David Christopher Hanson, Atlanta, for Appellant.

William D. Barwick, Charles Prescott Boring, Courtney Leigh Mays, for Appellee.

Markle, Judge.

After the Judicial Qualifications Commission (JQC) filed ethics charges against Judge Terrinee Gundy, she filed a petition for a writ of quo warranto against the JQC and its individual members on the ground that the members had not been properly and timely appointed.¹

Following a hearing, the trial court denied the petition, finding that the appointments were submitted to the Senate for confirmation, as required by statute, when they were timely given to the secretary of the senate. Gundy now appeals. For the reasons that follow, we affirm.

At issue is the process by which the senate confirms appointments to the JQC. Under OCGA § 15-1-21 (g) (1),

[t]he names of the appointees required by this Code section shall be submitted by the appointing authorities to the Senate no later than the third Monday in January. Any member appointed to the commission shall serve until the Senate confirms such appointee, and if an individual's name is not submitted by such deadline, he or she shall not be eligible for confirmation.

(Emphasis supplied.). Because the issues raised on appeal involve the interpretation of this statute, we apply a de novo review. Hill v. First Atlantic Bank , 323 Ga. App. 731, 732, 747 S.E.2d 892 (2013).

The facts are largely undisputed. In 2016, Georgia voters amended the state constitution to alter the structure and power of the JQC after the General Assembly expressed concern over the lack of oversight of the existing JQC while under the auspices of the State Bar. Ga. Const. of 1983, Art. VI, Sec. VII, Par. VI (effective Jan. 1, 2017); OCGA § 15-1-21 (a) (2017); Gabriel L. Daniel, House Bill 808: Courts; Judicial Qualifications Commission; Create , 10 J. Marshall L. J. 239, 244 (2017). Under the new format, the JQC was divided into two panels: a seven-member investigations panel, and a three-member hearing panel. OCGA § 15-1-21 (e) (1). Unlike the previous composition of the JQC, members of these two panels would be appointed by the governor, the president of the senate, the Supreme Court of Georgia, and speaker of the house of representatives. OCGA § 15-1-21 (f) (3) (A), (4) (A). The appointments were statutorily required to be confirmed by the Senate, and the confirmation process mandated that the appointments be "submitted ... to the Senate" by the third Monday in January. OCGA § 15-1-21 (b), (g) (1). Failure to meet this deadline made the appointee ineligible to serve on the JQC. OCGA § 15-1-21 (g) (1).

The parties agree that this deadline in 2018 fell on January 15. That year, the Senate was in session from January 8 through 11. On January 12, each of the nominating entities notified the lieutenant governor, who also serves as the president of the senate, of their appointments. Ga. Const. of 1983, Art. V, Sec. I, Par. III. That same day, counsel to the lieutenant governor gave the secretary of the senate those names, and the secretary of the senate time stamped each appointment when he received it. On January 18, which was the next day the Senate was in session, the secretary of the senate placed a memo with the names of the appointments on each senator's desk. In the memo, the secretary of the senate wrote:

Georgia law provides for Senate confirmation of appointments to the Judicial Qualifications Commission. Pursuant to Senate Rule 3-3.1, I am notifying the Senate that the Governor, Lt. Governor, Speaker of the House of Representatives, and Supreme Court of Georgia have submitted to the Senate the names of their appointments for confirmation. The names of the appointees are attached for your review. Pursuant to Senate rules, these appointments will be referred to the Committee on Assignments. The Committee on Assignments will report its recommendations on the appointments to the Senate after which the Senate may proceed to consider confirmation.

The Senate Journal for January 18 contains a copy of the memo and the letters of appointment from each of the nominating entities.² Ga. Const. of 1983, Art. III, Sec. V, Par. I. The president of the senate referred the appointments to the committee on assignments, as set out in the Senate rules, and ultimately, each appointee was confirmed.

In 2019, the JQC investigations panel brought formal charges against Judge Gundy. Gundy then filed a petition for a writ of quo warranto, challenging these appointments on the ground that delivering the names to the secretary of the senate did not constitute "submitted ... to the Senate" under the statute. See OCGA § 15-1-21. She argued that this phrase referred to the time when the senators actually received the names, and the sole evidence of when that occurred was found in the Senate Journal.³ Gundy further argued that, because the Journal showed the names were given to the senators on January 18, after the deadline of the third Monday in January, the members were ineligible to serve on the JQC.

The trial court set the case for a bench trial. When Gundy appeared, she agreed to proceed with a bench trial to the extent that the petition raised only questions of law, but she also stated that she was not waiving her right to a jury trial on the factual issues. Gundy then presented her only evidence, which consisted of the Senate Journal entries from January 18, 2018. Counsel for the JQC and its members confirmed that they intended to call David Cook, the secretary of the senate, to testify. At a subsequent hearing, Cook testified over Gundy's objection, explaining the procedure for how he received the names on January 12. Cook testified that it was customary for the secretary of the senate to receive appointments on the Senate's behalf for distribution to the senators; he would time stamp the appointments when he received them; and he would write a memo to the senators to maintain a paper record and place the memo on the senators’ desks the next day the Senate was in session.

The trial court denied the petition for a writ of quo warranto, finding that the JQC members were properly appointed because the names were timely submitted to the Senate when they were given to the secretary of the senate on January 12, and that the phrase "submitted ... to the Senate" in OCGA § 15-1-21 (g) (1) did not mean delivered to the individual senators.

Gundy now appeals from the denial of her petition, arguing that the trial court misinterpreted the statute when it found that delivering the names to the secretary of the senate satisfied OCGA § 15-1-21 (g) (1), and erred by considering any evidence other than the Senate Journal to determine when the names were submitted. She further contends that the trial court erred by deciding disputed issues of fact without a jury trial. We do not find these arguments persuasive.

The question before us involves one of statutory construction. When we are tasked with determining the meaning of a statute,

[o]ur interpretation and application of statutory language is guided by the following principles: A statute draws its meaning, of course, from its text. Under our well-established rules of statutory construction, we presume that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would. Though we may review the text of the provision in question and its context within the larger legal framework to discern the intent of the legislature in enacting it, where the statutory text is clear and unambiguous, we attribute to the statute its plain meaning, and our search for statutory meaning ends. But when the language of a statute or regulation is not obvious on its face, we should employ other tools of construction to interpret it and resolve its meaning. Those rules require that we give due weight and meaning to all of the words of the statute, and we are not authorized to disregard any of the words of the statute in question unless the failure to do so would lead to an absurdity manifestly not intended by the legislature.

(Citations and punctuation omitted.) PTI Royston v. Eubanks , 360 Ga. App. 263, 266-267 (1), 861 S.E.2d 115 (2021) ; see also DeKalb County Bd. of Tax Assessors v. Astor Atl , 349 Ga. App. 867, 869, 826 S.E.2d 685 (2019). Moreover, the "common and customary usages of the words" are important and "include the usual and customary meaning of terms as used in a legal context." (Citations and punctuation omitted.) Fed. Deposit Ins. Corp. v. Loudermilk , 305 Ga. 558, 562 (1), 826 S.E.2d 116 (2019) ; see also OCGA § 1-3-1 (b) (words in statutes are given their ordinary significance); Smith v. Northside Hosp. , 302 Ga. 517, 521 (1), 807 S.E.2d 909 (2017) ; Institute for Justice v. Reilly , 351 Ga. App. 317, 319 (1), 830 S.E.2d 793 (2019) (physical precedent only). When we consider the meaning of the statutory text, "we may look to other provisions of the same statute, the structure and history of the whole statute, and the other law—constitutional, statutory, and common law alike—that forms the legal background of the statutory provision in question." (Citation and punctuation omitted.) Loudermilk , 305 Ga. at 562 (1), 826 S.E.2d 116.

With these standards in mind, we turn to the questions before us: (a) what is required to "submit" the appointees’ names to the Senate; (b) what evidence may the court consider to determine if the submission was timely; and (c) was the trial court required to provide a jury trial on these issues. We consider each in turn and note that, as the party seeking a writ of quo warranto, Gundy bears the burden of showing that she was...