O'KELLEY v. Cox

• Court: Georgia Supreme Court
• Writing for the Court: CARLEY, Justice.
• Citation: O'KELLEY v. Cox, 604 S.E.2d 773, 278 Ga. 572 (Ga. 2004)
• Decision Date: 26 October 2004
• Docket Number: No. S05A0236.,S05A0236.
• Parties: O'KELLEY et al. v. COX.

604 S.E.2d 773

278 Ga. 572

O'KELLEY et al. v. COX.

No. S05A0236.

Supreme Court of Georgia.

October 26, 2004.

Alston & Bird, John E. Stephenson Jr., Jeffrey J. Swart, Gerald R. Weber Jr., Elizabeth L. Littrell, Jack H. Senterfitt, Atlanta, for appellants.

Thurbert E. Baker, Attorney General Stefan E. Ritter, Assistant Attorney General for appellees.

Jewett & Clark, Robin F. Clark, Arnall, Golden Gregory, Scott C. Titshaw, Kilpatrick Stockton, Miles J. Alexander, Alexander S. Clay, Michael W. Tyler, Jill Warner, Atlanta, for amici curiae.

CARLEY, Justice.

In March of 2004, the General Assembly approved Senate Resolution 595, which submits to the voters of this state at the general election to be held on November 2 of this year a proposal to amend Article I of the 1983 Georgia Constitution by adding a new Section IV. On September 16, 2004, Appellants herein filed a complaint in the Superior Court of Fulton County seeking to enjoin Appellee from putting that proposed amendment on the November 2, 2004, General Election Ballot. On September 29, 2004, the trial court denied injunctive relief and dismissed the complaint. The notice of appeal was filed on September 30, 2004. We expedited the briefing schedule and heard oral argument on October 19, 2004. The issue presented in this appeal is not whether that amendment, if approved by the electorate, can itself withstand a constitutional attack based upon the so-called "single subject" rule of Art. X, Sec. I, Para. II or any other provision of the Georgia Constitution of 1983. Compare Goldrush II v. City of Marietta, 267 Ga. 683, 685(2)(a), 482 S.E.2d 347 (1997); Carter v. Burson, 230 Ga. 511, 518(3), 198 S.E.2d 151 (1973). The election has yet to be held, and the amendment thus remains only a proposal. The sole question raised by this case is whether the judiciary is authorized to interfere in the constitutional amendment process, and prevent the voters from expressing their approval or disapproval of the proposal which their elected representatives, by a two-thirds vote of each house of the General Assembly, have determined should be submitted to them. On this issue, Gaskins v. Dorsey, 150 Ga. 638, 104 S.E. 433 (1920), is applicable, controlling, and dispositive. Gaskins makes it clear that the courts of Georgia cannot encroach upon the legislative process, and do not have any authority to bar the general election on November 2, 2004 from proceeding exactly as it is presently scheduled.

The judiciary is vested with the power to determine the constitutionality of legislation, but at present there is simply no legislation which can be the subject of a constitutional attack. All that does exist is a resolution of the General Assembly proposing that the Georgia Constitution be amended so as to add a new Section IV to Article I.

Considering the steps necessarily taken in the course of legislation and submission of the proposed amendment to the people, an amendment to the constitution is in its formative stages until the electorate of the State have cast their ballots thereon in a general election. While the amendment is in such formative state and in the course of progression from the proposal to the general election and ratification, it is analogous to ordinary legislation by the General Assembly, which is in its formative state or state of progression from the time of the introduction of a bill in the legislature until it is finally passed by the requisite constitutional majority and has received the signature of the Governor. The judicial power will not be exerted, by writ of error or otherwise, to stay the course of legislation while it is in process of enactment. This applies both to ordinary legislation and the analogous course of an amendment to the constitution from the time of the introduction of the act proposing the amendment until the electors have acted. "It would be a stretch of power in the judiciary to restrain by its process, mesne or final, a law enacted by the General Assembly, in a formative state and before it became operative by the vote of the people to be affected thereby, which vote alone could consummate its validity, under the terms of the act itself." [Cits.]

Gaskins v. Dorsey, supra, 639-640. Accordingly, the amendment in question certainly can be challenged in the event that it is "enacted" by virtue of approval by the voters. See Carter v. Burson, supra. However, the judiciary does not have any jurisdiction to block further consideration of the proposed amendment at this formative stage in the legislative process. Gaskins v. Dorsey, supra. Compare Burchette v. State, 278 Ga. 1, 596 S.E.2d 162 (2004) (post-election challenge based upon form of the ballot).

Reliance on Cheney v. Ragan, 151 Ga. 735, 108 S.E. 30 (1921) as authority for a contrary holding is misplaced, because it did not involve an attack on a proposed constitutional amendment.

It will be readily seen that there is a fundamental difference between the case of Gaskins v. Dorsey, supra and the [Cheney] case. The election in the [Cheney] case, while it might become the basis of action by the General Assembly, had in no way become a part of the legislative enactment....

Cheney v. Ragan, supra at 743, 108 S.E. 30. Thus, Cheney, unlike Gaskins, did not implicate the constitutional principle of separation of powers. In its very well-reasoned order refusing to enjoin the election as to the proposed constitutional amendment, the trial court in this case noted as follows:

In every election case cited ... where judicial intervention was authorized or upheld, the legislative process was complete. The law or ordinance from which the illegality arose was, in fact, a law. A proposed constitutional amendment does not become law until passed upon by the voters. Until that time, its effects are entirely speculative. It can have no detrimental effect until ratified. If it fails, any irregularity or impropriety in the amendment process is moot. An unsuccessful amendment is no different than any other unsuccessful proposed legislation. If the amendment is voted upon and passes, it may be challenged through post election measures. But, until there is a law or amendment in existence the [c]ourts have nothing upon which to act and may not intervene in the legislative process.... Insofar as the Plaintiffs seek a declaratory ruling on the validity of the proposed amendment the [judiciary] has no authority to issue declaratory judgment[s] on questions in the abstract. Until such time as the electorate votes, whether the General Assembly acted properly is not a matter ripe for resolution by the courts.

The fallacy in Appellants' argument is their insistence that they have a legal right not to participate in an election wherein a proposed constitutional amendment may not withstand judicial scrutiny in the event it is passed. However, their rights are limited to those available to any other citizen of this state who is opposed to proposed legislation. They are entitled to campaign against enactment of the proposed amendment and, if they are unsuccessful in that effort, they may bring a challenge to its constitutionality on any arguably meritorious basis. At this time, however, they have no right to invoke the power of the judiciary

to enjoin enactment of legislation or adoption of a proposed constitutional amendment, and when designated state officials determine how a proposed constitutional amendment will be submitted to the voters, such submission, being a part of the legislative process, will not be enjoined.

Wilson v. Sanders, 222 Ga. 681(1), 151 S.E.2d 703 (1966).

Judgment affirmed.

All the Justices concur, except HUNSTEIN, J., who concurs specially, and SEARS, P.J., and BENHAM, J., who dissent.

HUNSTEIN, Judge, concurring specially.

Contending that the proposed amendment at issue in this case violates the Georgia Constitution's Single Subject Rule and is being presented to the voters through affirmatively misleading ballot language, appellants ask this Court to overrule the trial court's refusal to enjoin appellee from placing the proposed amendment on the November 2 ballot. Relying upon the "general rule" that courts of equity will not interfere in matters of elections, the majority affirms the trial court, asserting that "the judiciary does not have any jurisdiction to block further consideration of the proposed amendment." (Emphasis supplied.) Majority Opinion, p. 3. The dissent would recognize an exception to the general rule in those rare cases where Georgia citizens may be damaged by "entering the voting booth and being confronted with a ballot measure that proposes amending the constitution in multiple ways," (footnote omitted), Dissenting Opinion, p. 7, and thus would remand the case to the trial court to determine whether the proposed amendment violates the Single Subject Rule.

While I agree with the majority that the constitutional principle of separation of powers limits the judiciary's involvement in matters of elections, Georgia case law recognizes exceptions to the general rule that courts of equity will not enjoin an election. Cheney v. Ragan, 151 Ga. 735, 741, 108 S.E. 30 (1921). "One of these exceptions is where the constitutional rights of citizens and taxpayers are sought to be invaded by an attempt to make an unconstitutional or inapplicable law operative through the means of an election. [Cits.]" Marbut v. Hollingshead, 172 Ga. 531, 538, 158 S.E. 28 (1931). The cases cited by the Marbut Court in support of its ruling were based on the principle "that such election would bring about confusion, subject citizens and taxpayers to damages, and cause a multiplicity of suits." Id. See also Bergman v. Dutton, 203 Ga. 672, 680, 48 S.E.2d 101 (1948) ("`if under the guise of an election which is really unauthorized by law, the property or person of the citizen is imperiled, equity will interfere'"). I realize that none of the cases that...