Merry v. Williams

• Decision Date: 05 February 2007
• Docket Number: No. S06A1690.,S06A1690.
• Citation: 642 S.E.2d 46,281 Ga. 571
• Parties: MERRY v. WILLIAMS et al.
• Court: Georgia Supreme Court

281 Ga. 571

642 S.E.2d 46

MERRY v. WILLIAMS et al.

No. S06A1690.

Supreme Court of Georgia.

February 5, 2007.

Joseph Raymond Neal, Jr., Augusta, for Appellant.

Stephen E. Shepard, Shepard, Plunkett, Hamilton & Boudreaux, Charles H.S. Lyons III, Emory Freddie Sanders Sr., Capers, Dunbar, Sanders & Bruckner, Benjamin Allen, Benjamin Allen & Associates, PC, John B. Long, Tucker, Everitt, Long, Brewton & Lanier, David E. Hudson, Hull, Towill, Norman, Barrett & Salley, Augusta, for Appellee.

CARLEY, Justice.

The act consolidating the City of Augusta and Richmond County governments (Consolidation Act), as amended, provides for a commission which shall consist of a mayor and ten commissioners. Ga. L. 1997, pp. 4690, 4691; Ga. L. 1995, pp. 3648, 3650, § 1. "Seven members of the [Commission] shall constitute a quorum for the transaction of ordinary business, and an affirmative vote of at least six members shall be required for the [Commission] to take action." Ga. L. 1995, pp. 3648, 3663, § 6. "The [Mayor] shall be a member of the [Commission]. Except as otherwise provided ..., the [Mayor] shall have the right to vote only to make or break a tie vote on any matter." Ga. L. 1995, pp. 3648, 3658, § 2(b). The Mayor Pro Tempore shall be elected at the Commission's first meeting in January of each year. Ga. L. 1995, pp. 3648, 3662, § 4(b).

On January 3, 2005, Commissioner Marion Williams was elected to the office of Mayor Pro Tempore. In the next election on January 3, 2006, he received four "yes" votes and five "no" votes. Williams himself abstained, thereby preventing a potential sixth negative vote from the Mayor. In a second election at the same meeting, Commissioner Andy Cheek received five "yes" votes and four "no" votes. Williams again abstained, this time preventing Cheek from receiving a potential sixth affirmative vote from the Mayor. Subsequent nominations on January 17 for Williams, Cheek, and Commissioner Don Grantham similarly failed by votes of five to four. Bradford Merry, a citizen and taxpayer of Augusta-Richmond County, filed this petition for writ of mandamus and for declaratory judgment against the Commission, the Mayor, and each commissioner (Defendants), and for writ of quo warranto against Williams. See OCGA § 9-6-24; League of Women Voters of Atlanta-Fulton County v. City of Atlanta, 245 Ga. 301, 303-304(1), 264 S.E.2d 859 (1980); Head v. Browning, 215 Ga. 263, 266-267(2), 109 S.E.2d 798 (1959); Kidd v. Nelson, 213 Ga. 417(1), 99 S.E.2d 123 (1957). Grantham filed a counterclaim and cross-claim for declaratory judgment. After a hearing, the trial court denied mandamus and quo warranto relief, dismissed the petition for declaratory judgment, and denied all other claims. Merry appeals from this order.

1. During the pendency of this appeal, Defendants submitted a certified copy of the minutes of the Commission meeting held on January 2, 2007. Those minutes show that Commissioner Betty Beard was elected Mayor Pro Tempore for 2007. Defendants urge that this election has rendered moot those enumerations which relate to the denial of mandamus and quo warranto relief. As for mandamus, Merry sought to compel Defendants to hold a new election for Mayor Pro Tempore for 2006 and to require all commissioners to vote either affirmatively or negatively and not to abstain. Because the year 2006 ended and Defendants performed the public duty of electing a new Mayor Pro Tempore for 2007, Merry's prayer that mandamus be issued compelling them to perform that public duty is moot. Baez v. Miller, 266 Ga. 211, 465 S.E.2d 671 (1996). Merry petitioned for writ of quo warranto on the ground that Williams was improperly holding over in the office of Mayor Pro Tempore. Since a new Mayor Pro Tempore has been elected and Williams is no longer holding over, the issue of quo warranto is also moot. Bruce v. Maxwell, 270 Ga. 883, 515 S.E.2d 149 (1999). However, Defendants concede that the appeal is not moot with respect to the remaining claims for declaratory judgment and attorney's fees.

2. Merry contends that the trial court erred in failing to grant his petition for declaratory judgment as requested. The trial court dismissed it on the ground that an actual case or controversy does not exist and that declaratory relief would be advisory. Specifically, the trial court stated that the Mayor has the duty to determine how an abstention will be counted, that a commissioner may then challenge his ruling, and that the Commission will make the final decision, but that none of these actions has been taken. However, the trial court cites only general portions of the Commission's Rules of Procedure, which do not specifically provide for such actions. Furthermore, the Mayor, in announcing the votes in the unsuccessful 2006 elections for Mayor Pro Tempore, necessarily determined that Williams' abstention is not to be counted either affirmatively or negatively. Although some commissioners agreed with the Mayor's treatment of the abstentions, some disagreed, but the Commission repeatedly acquiesced in the Mayor's vote counts. The actions of Defendants indicate that the dispute over the method of counting abstentions was an actual controversy ripe for adjudication, Defendants have not made any showing that such controversy has ended, and Merry remains opposed to the Mayor's method of counting votes.

This case does not merely concern the internal operating procedures of the Commission, but rather involves interpretation of the voting requirements in the Consolidation Act and the Rules of Procedure, which is a proper subject for judicial review. League of Women Voters of Atlanta-Fulton County v. City of Atlanta, supra at 302-303(1), 264 S.E.2d 859. See also Harrison v. Arogeti, 228 Ga. 55, 183 S.E.2d 761 (1971); Aliotta v. Gilreath, 226 Ga. 263, 264(2), 174 S.E.2d 403 (1970). Compare Stuckey v. Richardson, 188 Ga.App. 147, 149(2), 372 S.E.2d 458 (1988). "The parties appear to be in hopeless conflict as to the meaning of the charter provisions ..., and as to the actions which they may legally take under the charter, and the case was a proper one for declaratory judgment." Aliotta v. Gilreath, supra at 264(1), 174 S.E.2d 403. See also Rock v. Head, 254 Ga.App. 382, 562 S.E.2d 768 (2002); Cobb County v. Jones, 179 Ga.App. 240, 345 S.E.2d 917 (1986). Furthermore, although the particular dispute regarding the 2006 election is over, we cannot conclude that the more general issue of the appropriate method for counting abstentions is moot. See Vollrath v. Collins, 272 Ga. 601(1), 533 S.E.2d 57 (2000). Accordingly, consistent with Defendants' position with respect to mootness, we hold that the claim for declaratory judgment survives and is not moot. See Cleland v. Gwinnett County, 226 Ga.App. 636, 639, 487 S.E.2d 434 (1997). The construction of charter provisions, ordinances, or regulations presents questions of law. City of Buchanan v. Pope, 222 Ga.App. 716, 717, 476 S.E.2d 53 (1996). Thus, we decline to remand this case to the trial court for determination of such questions, and instead turn to the merits of the declaratory judgment action. See Cramer v. Spalding County, 261 Ga. 570, 572-575(2)-(5), 409 S.E.2d 30 (1991).

3. Merry urges that the six-vote requirement in the Consolidation Act should be interpreted as consistent with the common law rule, which requires only a simple majority of a quorum. However, charter and other statutory provisions frequently depart from the common law rule, primarily by requiring a majority or designated percentage of the whole council or all members, or by using similar language. Reynolds, Voting Requirements in Municipal Governing Bodies: Minority Rule or Legislative Stalemate?, 27 Urb. Law. 87, 93(III), 101(IV) (1995). See also OCGA § 1-3-1(d)(5) (the number of officers required to execute a joint authority may be "otherwise declared"); Aliotta v. Gilreath, supra at 265(2), 174 S.E.2d 403; Anno., 43 ALR2d 698, §§ 4-7. The departure from the common law is even more clear where, as here, the charter requires the affirmative vote of a specific minimum number of commissioners. Merrill v. City of Lowell, 236 Mass. 463, 128 N.E. 862, 863 (1920). "[W]e cannot ignore the plain meaning of the charter provision which requires an affirmative vote by [six] commissioners. [Cit.]" Eastgate Theatre v. Bd. of County Commissioners of Washington County, 37 Or.App. 745, 588 P.2d 640, 642, fn. 5 (Or.App.1978).

The legislature, in creating the [Commission] ..., did not leave the question of the manner in which the [C]ommission should exercise its powers to the uncertainties of judicial construction, but expressly limited the authority of the [C]ommission to take official action .... Applying the plain language of [the Consolidation Act], it means that ... [t]he disposition of ... a proposition must ... be deferred until ... a vote can be taken which will result in at least [six] votes being cast on one side of the proposition or the other.

Harrison v. Arogeti, supra at 58(1), 183 S.E.2d 761 (construing an act requiring "the affirmative vote of at least three members of the commission, or two members and the chairman"). See also Roberts v. Dancer, 20 Ga.App. 752, 93 S.E. 297 (1917).

4. Merry complains of the Commission's practice of allowing commissioners who abstain for any reason to be counted as voting neither in the affirmative nor in the negative. He describes such practice as unconstitutionally contrary to public policy, and argues that the Consolidation Act and the Rules of Procedure cannot be construed to authorize the practice, and thereby to frustrate the Commission's governing ability and thwart majority rule.

The Consolidation Act is the governing local act or charter enacted by the General Assembly, and the Rules of Procedure are adopted by the Commission to guide its proceedings. The Commission may exercise those powers which are vested in the governing authorities of counties as well as municipalities....