Kemp v. Gonzalez

310 Ga. 104

849 S.E.2d 667

KEMP et al.

v.GONZALEZ et al.

S21Q0068

Supreme Court of Georgia.

Decided: October 8, 2020

Elizabeth T. Young, Russell David Willard, Senior Assistant Attorney General, Andrew Alan Pinson, Solicitor-General, Christopher M. Carr, Attorney General, Miles Christian Skedsvold, Assistant Attorney General, Bryan Keith Webb, Department of Law, 40 Capitol Square, SW, Atlanta, Georgia 30334-0819, Attorneys for the Appellant.

Bruce Perrin Brown, Bruce P. Brown Law LLC, 1123 Zonolite Road, Suite 6, Atlanta, Georgia 30306, Attorneys for the Appellee.

Melton, Chief Justice.

This election case comes before us based on the following certified question submitted to this Court by the United States Court of Appeals for the Eleventh Circuit:

Does OCGA § 45-5-3.2 conflict with Georgia Constitution Article VI, Section VIII, Paragraph I (a) (or any other provision) of the Georgia Constitution?

For the reasons that follow, we conclude that the answer to the question is "yes" to the extent that OCGA § 45-5-3.2 authorizes a district attorney appointed by the Governor to serve beyond the remainder of the unexpired four-year term of the prior district attorney without an election as required by Article VI, Section VIII, Paragraph I (a) of the Georgia Constitution of 1983 ("Paragraph I (a)").

1. The facts are not in dispute. On March 6, 2020, Deborah Gonzalez attempted to qualify for the November 3, 2020 general election for the office of district attorney for the Western Judicial Circuit after Ken Mauldin resigned from the office effective February 29. The Georgia Secretary of State determined that Gonzalez could not qualify for the November 2020 election for district attorney because, under OCGA § 45-5-3.2 (a), there would not be an election for that position until November 2022 – the state-wide general election immediately prior to the expiration of the Governor's future appointee's term. See OCGA § 45-5-3.2 (a) (Where the Governor fills a vacancy in the office of district attorney, the appointee "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"). Though the vacancy began more than six months before the scheduled November 2020 election, the Governor did not make an appointment in time to maintain that scheduled election pursuant to the provisions of the statute.¹

On May 18, 2020, Gonzalez and four other registered voters² sued the Governor and the Secretary of State in the United States District Court for the Northern District of Georgia. Gonzalez alleged that OCGA § 45-5-3.2 (a) violates Paragraph I (a). A week later, Gonzalez filed a motion for preliminary injunction, asking the district court to require the Governor and the Secretary of State to move forward with the November 2020 election for the Western Judicial Circuit district attorney. The district court granted the request, finding that Gonzalez likely would succeed on her federal due process claim because OCGA § 45-5-3.2 (a) conflicts with Paragraph I (a) and is therefore unconstitutional under Georgia law. See Duncan v. Poythress , 657 F.2d 691, 704 (5th Cir. 1981) ("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.... [S]uch action violates the due process guarantees of the fourteenth amendment [of the United States Constitution]."). In July, the Governor and the Secretary of State appealed to the Eleventh Circuit, which certified the above-referenced question to this Court.

2. In evaluating whether OCGA § 45-5-3.2 (a) violates the Georgia Constitution,

we recognize at the outset that all presumptions are in favor of the constitutionality of an Act of the legislature and that before an Act of the legislature can be declared unconstitutional, the conflict between it and the fundamental law must be clear and palpable and this Court must be clearly satisfied of its unconstitutionality. Moreover ... statutes are presumed to be constitutional until the contrary appears[.]

(Citation and punctuation omitted.) JIG Real Estate, LLC v. Countrywide Home Loans, Inc. , 289 Ga. 488, 490 (2), 712 S.E.2d 820 (2011).

With these principles in mind, our analysis begins with the text of Paragraph I (a), which states:

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.

Notably, this text closely resembles constitutional language that set the term of office for elected superior court judges under the 1877 Constitution (as amended in 1898), which this Court interpreted in Hooper v. Almand , 196 Ga. 52, 57-58 (1), 25 S.E.2d 778 (1943). In Hooper , an incumbent judge died shortly before the end of his four-year term, and this Court determined that a judge appointed to fill the vacancy could not serve for longer than the unexpired term of the deceased judge without an election for a successor taking place. See id. at 59-61 (1), 25 S.E.2d 778. At the time that Hooper was decided, Article VI, Section III, Paragraph I of the 1877 Constitution provided for at least one superior court judge in each circuit "whose term of office shall be four years , and until his successor is qualified." (Punctuation omitted; emphasis supplied.)

Id. at 57 (1), 25 S.E.2d 778. Paragraph II of Section III stated in pertinent part:

The successors to the present and subsequent incumbents shall be elected by the electors entitled to vote for members of the General Assembly of the whole State, at the general election held for such members, next preceding the expiration of their respective terms ....

(Emphasis supplied.) Id.

The same pertinent constitutional language also existed at that time with respect to the selection of solicitors general, whose duties later became those of district attorneys. See Copland v. Wohlwender , 197 Ga. 782, 784 (2), 30 S.E.2d 462 (1944) (interpreting Article VI, Section XI, Paragraph I of the Georgia Constitution of 1877, which stated in relevant part, "There shall be a solicitor-general for each judicial circuit, whose official term (except to fill a vacancy) shall be four years. The successors of present and subsequent incumbents shall be elected by the electors of the whole State ... at the general election held next preceding the expiration of their respective terms.")

This Court interpreted the constitutional text at issue in Hooper as follows:

The words "next preceding the expiration of their respective terms" are obliged to refer to the four years for which the judges are elected, and not to an election next preceding the expiration of the four years plus an indefinite period which would run until their successors were qualified. The terms referred to here mean the four-year terms. To give the phrase any other rendition would be to hold that the constitution has fixed no definite time for the election of judges for full terms.

(Punctuation omitted.) Hooper , supra, 196 Ga. at 57-58 (1), 25 S.E.2d 778. We also held that "[t]he words ‘until his successor is qualified[ ]’ found in the constitution ... mean a successor elected by the people." (Citation omitted.) Id. at 59 (1), 25 S.E.2d 778.

Similarly, this Court concluded in Copland that

[t]he general policy of the law of this State is that the office of solicitor-general is an elective office; an appointment made by the executive shall be for such period of time only as is necessary to fill the office until the people can legally elect a solicitor-general.... We think that the language, ‘next preceding the expiration of their respective terms,’ was intended to designate the election at which solicitors-general should be elected for the full term of four years, and was not intended to designate the general election at which a successor should be elected in case of a vacancy.

197 Ga. at 786 (2) and 789 (5), 30 S.E.2d 462.

Thus, both Hooper and Copland determined that when this language is used in our Constitution, the timing of the election for a successor to an office is tied to the specific term for the office as measured by the Constitution. And, although the constitutional language analyzed in Hooper setting the terms for judges appointed to elective offices was materially changed in the 1983 Constitution, see Barrow v. Raffensperger , 308 Ga. 660, 672-673 (3) (c), 842 S.E.2d 884 (2020) (discussing Ga. Const. of 1983, Art. VI, Sec. VII, Par. IV ), the constitutional language applicable to the terms of district attorneys under the 1983 Constitution is consistent with the language of prior versions of the Georgia Constitution that set fixed terms of office for elected judges and solicitors general. Thus, Hooper and Copland are controlling in this case. See Elliott v. State , 305 Ga. 179, 184-187 (II) (B), 824 S.E.2d 265 (2019) (constitutional language that has received consistent and definitive construction and is then readopted into new constitution is presumed to carry same meaning as that prior construction).

As was the case for elected superior court judges and solicitors general under the materially same constitutional language at issue in Hooper and Copland , Article VI, Section VIII, Paragraph I (a) of our 1983 Constitution relating to district attorneys first fixes a four-year term for the office of district attorney in each judicial circuit. The second sentence of Paragraph I (a) then ensures that the successors of any presently...