Syfert Injury Law Firm

Your Trusted Partner in Personal Injury & Workers' Compensation

Call Now: 904-383-7448

2018 Georgia Code 21-4-6 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 21-4-6 Case Law from Google Scholar Amendments to OCGA 21-4-6

TITLE 21 ELECTIONS

Section 4. Recall of Public Officers, 21-4-1 through 21-4-21.

ARTICLE 15 MISCELLANEOUS OFFENSES

21-4-6. Review of grounds for recall petition.

  1. Within four days after the date of submission of the application for a recall petition for verification, excluding Saturdays, Sundays, and legal holidays, the officer sought to be recalled may file a petition in the superior court of the county in which such officer is domiciled applying for a review of the sufficiency of the ground or grounds for the recall and the fact or facts upon which such ground or grounds are based as set forth in such recall application.
  2. The superior court having jurisdiction of a case governed by this chapter shall be presided over by a superior court judge or senior judge.The superior court judge or senior judge who presides over the case shall be selected as set out in subsection (c) of this Code section.
  3. Upon the filing of a sufficiency review petition under this Code section, the clerk of superior court having jurisdiction shall immediately notify the administrative judge for the judicial administrative district in which that county lies, or the district court administrator, who shall immediately notify the administrative judge of the institution of proceedings under this chapter.If the county in which the proceedings were instituted is not in the circuit of the administrative judge, the administrative judge shall select a superior court judge from within the district, but not from the circuit in which the proceeding was instituted, or a senior judge who is not a resident of the circuit in which the proceeding was instituted, to preside over the contest.
  4. If the administrative judge is a member of the circuit in which the proceeding was filed, or if the other judges of the district are unable or are unwilling to preside over the proceeding, or if the other judges of the district are judges of the circuit in which the proceeding was filed, then the administrative judge shall select an administrative judge of an adjoining district to select a superior court judge from that district, or a superior court judge from the district in which the proceeding was filed, but not the circuit in which the proceeding was filed, or a senior judge who is not a resident of the circuit wherein the proceeding was filed.
  5. After a judge has agreed to preside over the case, the administrative judge who selected the judge to hear the matter shall enter an order in the superior court of the county where the proceeding was filed appointing such judge, and such judge shall promptly begin presiding over such proceedings in such court and shall determine same as soon as practicable. Such judge shall be reimbursed for his actual expenses for food and lodging and shall receive the same mileage as any other state officials and employees. Senior judges shall be entitled to compensation and reimbursement as the law provides for senior judge service.
  6. Such review shall be limited solely to a review of the legal sufficiency of the recall ground or grounds and the legal sufficiency of the alleged fact or facts upon which such ground or grounds are based as set forth in such recall application. The review of such alleged fact or facts shall include a determination of whether probable cause exists to believe that such alleged fact or facts are true. The burden shall be on the petition chairperson to prove that such probable cause exists. The judge shall consider such review petitions on an expedited basis. Discovery shall be permitted but shall not delay the consideration of the review petition by the judge. The judge may enter such orders as the judge deems necessary and appropriate to expedite any discovery and the consideration of the review petition.
  7. During the pendency of the review by the superior court, all other recall proceedings shall be suspended. If a ruling of sufficiency is rendered by such judge, then recall proceedings shall continue in the manner provided for in this chapter. The time for circulating a recall petition after the review of the sufficiency petition shall begin from the date of the order of the superior court or the issuance of recall petition forms, whichever is later, notwithstanding the fact that recall petition forms were issued before the filing of the petition for review of the sufficiency of the recall application. Valid signatures obtained on a recall petition prior to the filing of a petition for review of the sufficiency of a recall application shall be counted. The officer sought to be recalled may file a discretionary appeal in the Supreme Court of Georgia within ten days after the date of an order finding a recall application sufficient, excluding Saturdays, Sundays, and legal holidays, and such court shall consider such appeal on an expedited basis. The filing of such appeal shall not operate to stay the recall proceedings. If a ruling of insufficiency is rendered by such judge, then a discretionary appeal may be filed in the Supreme Court of Georgia within ten days after the date of such ruling, excluding Saturdays, Sundays, and legal holidays, and such court shall consider such appeal on an expedited basis.

(Code 1981, §21-4-6, enacted by Ga. L. 1989, p. 1721, § 1; Ga. L. 1990, p. 1939, §§ 5, 6; Ga. L. 1991, p. 608, § 3; Ga. L. 1998, p. 1107, § 1.)

Editor's notes.

- Ga. L. 1990, p. 1939, § 8, not codified by the General Assembly, provides that the Act shall only apply to recall proceedings under Chapter 4 of Title 21 which are instituted on or after July 1, 1990.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the provisions, cases decided prior to the 1989 revision of this chapter are included in the annotations for this Code section.

Constitutionality of procedure for review of recall petition.

- The recall "condition" provided in O.C.G.A. § 21-4-6(f) is not unconstitutional as denying an elected official an opportunity for a judicial hearing to determine the truth or falsity of the alleged facts upon which the recall application is based. Collins v. Morris, 263 Ga. 734, 438 S.E.2d 896 (1993).

Rules of evidence are applicable in a hearing to determine the sufficiency of a recall application. DeLong v. Welch, 272 Ga. 730, 533 S.E.2d 724 (2000).

Determining sufficiency of factual allegations.

- To determine if the "fact or facts upon which such ground or grounds are based" are legally sufficient, a court should consider the following: 1) assuming the fact or facts to be true, do they allege misconduct which constitutes a legally sufficient ground for recall according to the statutory definition of that term; 2) if so, are the fact or facts stated with "reasonable particularity." Brooks v. Branch, 262 Ga. 658, 424 S.E.2d 277 (1993).

Since the factual allegations were either a mere conclusion, lacking reasonable particularity, or failed to allege conduct which would constitute one of the statutory grounds for recall, they were legally insufficient to support grounds for recall. Brooks v. Branch, 262 Ga. 658, 424 S.E.2d 277 (1993).

Determining sufficiency.

- Because neither discovery nor an evidentiary hearing is permitted at the review stage of the recall proceedings, it is imperative that the application state with clarity and specificity the facts supporting the grounds for recall such that both the public and the official sought to be recalled are properly notified of the violation alleged to have been committed. The standard for determining the "legal sufficiency" of a factual allegation is whether it states "with reasonable particularity a ground for recall." Davis v. Shavers, 263 Ga. 785, 439 S.E.2d 650 (1994).

Application of "reasonable grounds", definition of probable cause.

- Trial court did not err in applying the "reasonable grounds" definition of probable cause in determining whether there was probable cause to believe that the factual allegations in a recall application were true. DeLong v. Welch, 272 Ga. 730, 533 S.E.2d 724 (2000).

Mere conclusions legally insufficient.

- Where a petition under the Recall Act of 1989, O.C.G.A. § 21-4-1 et seq., was filed against a county school board member, the allegations of the petition were nothing more than mere conclusions and failed to set out the alleged fact or facts upon which such ground or grounds are based. Hamlett v. Hubbard, 262 Ga. 279, 416 S.E.2d 732 (1992).

Conduct of a public official who participates in a closed meeting that is required by law to be open can become a "ground for recall" under the Recall Act, O.C.G.A. § 21-4-1 et seq., if the circumstances of that participation come within the definition of "grounds for recall." Steele v. Honea, 261 Ga. 644, 409 S.E.2d 652 (1991).

Privilege.

- Allegations made in recall petitions are not absolutely privileged, but are only conditionally privileged as "comments upon the acts of public men in their public capacity and with reference thereto." Davis v. Shavers, 225 Ga. App. 497, 484 S.E.2d 243 (1997), aff'd, 269 Ga. 75, 495 S.E.2d 23 (1998).

Applications were not legally insufficient.

- Recall applications based on a violation of the Open Meetings Act, O.C.G.A. Ch. 14, T. 50, were not legally insufficient because they did not specify dates and places, did not positively allege that a quorum was present at the closed meeting, and that the violation was willful and knowing. Phillips v. Hawthorne, 269 Ga. 9, 494 S.E.2d 656 (1998).

RESEARCH REFERENCES

ALR.

- Sufficiency of particular charges as affecting enforceability of recall petition, 114 A.L.R.5th 1.

Sufficiency of technical and procedural aspects of recall petitions, 116 A.L.R.5th 1.

Cases Citing O.C.G.A. § 21-4-6

Total Results: 10  |  Sort by: Relevance  |  Newest First

Copy

Collins v. Morris, 438 S.E.2d 896 (Ga. 1994).

Cited 23 times | Published | Supreme Court of Georgia | Jan 24, 1994 | 263 Ga. 734, 94 Fulton County D. Rep. 319

...King Askew, Gammon & Anderson, Joseph N. Anderson, for appellees. CARLEY, Justice. Appellants are the elected members of the Aragon City Council against whom, in October of 1992, appellees filed an application for a recall petition. Pursuant to OCGA § 21-4-6 (a), appellants sought judicial review of appellees' application and, after conducting a hearing in accordance with OCGA § 21-4-6 (f), the superior court found the recall petition to be legally insufficient....
...The superior court upheld the constitutionality of the Act and, in Case No. S93A1341, appellants appeal from that ruling. The identical enumerations of error have been filed in both cases. Accordingly, the two appeals have been consolidated for disposition in this single opinion. 1. OCGA § 21-4-6 (f) provides that judicial review of an application for a recall petition shall be limited solely to a review of the legal sufficiency of the recall ground or grounds and the legal sufficiency of the alleged fact or facts upon which such gr...
...ht...." Howell v. Tidwell, 258 Ga. 246, 247 (1) (368 SE2d 311) (1988). Accordingly, appellants took office subject to the condition that they could be recalled by the electorate. Appellants urge, however, that the recall "condition" provided in OCGA § 21-4-6 (f) is unconstitutional because it denies an elected official an opportunity for a judicial hearing to determine the truth or falsity of the alleged facts upon which the recall application is based....
...ith a fixed content unrelated to time, place and circumstances.' [Cit.] `(D)ue process is flexible and calls for such procedural protections as the particular situation demands.' (Cit.)" Eaves v. Harris, supra at 4 (2) (b). Through enactment of OCGA § 21-4-6 (f), the General Assembly has provided that an elected official is entitled to judicial review of the recall application to determine whether a statutorily specified ground for recall has been indeed stated and whether the supporting allega...
...n elected official takes office subject to the possibility of being recalled by the electorate in the future, and that an elected official is statutorily entitled to judicial scrutiny only of the legal sufficiency of the recall application. See OCGA § 21-4-6 (f)....
Copy

City of Tybee Island v. Godinho, 511 S.E.2d 517 (Ga. 1999).

Cited 20 times | Published | Supreme Court of Georgia | Feb 8, 1999 | 270 Ga. 567, 99 Fulton County D. Rep. 544

Copy

Steele v. Honea, 409 S.E.2d 652 (Ga. 1991).

Cited 17 times | Published | Supreme Court of Georgia | Nov 1, 1991 | 261 Ga. 644, 19 Media L. Rep. (BNA) 1605

...These meetings were closed to the public in violation of Chapter 14 of Title 50 of [OCGA] requiring open and public meetings. The commissioners filed a complaint in superior court seeking review of the sufficiency of the recall applications under OCGA § 21-4-6....
...Following the hearing, the court granted the commissioners' request for a permanent injunction based upon its determination that the petitions were insufficient under the provisions of the Recall Act. We granted discretionary review of the trial court's orders pursuant to OCGA § 21-4-6(e), and asked that the parties address this question: Whether a claimed violation of the Open Meetings Act is a ground for recall of a public officer under the 1989 Recall Act (OCGA § 21-4-3(7))....
...set out in Division 1(a), above. Hence, our initial inquiry is answered in the affirmative. 3. (a) Turning to the factual circumstances of this case, the provisions of the Recall Act in effect at the time of the superior court's ruling (former OCGA § 21-4-6(d)) provided: The judge shall schedule an evidentiary hearing on an expedited basis.......
...nt. The portion of the Act which defines legal sufficiency appears only to define the term as it applies to the review of the application to be conducted by the election superintendent. [2] I note that the 1991 amendment to the Act basically returns § 21-4-6 of the Act to the language and procedure contained in that portion of the Act when it was originally enacted in 1989....
Copy

Davis v. Shavers, 495 S.E.2d 23 (Ga. 1998).

Cited 15 times | Published | Supreme Court of Georgia | Jan 26, 1998 | 269 Ga. 75, 98 Fulton County D. Rep. 329

...591, 595(3), 490 S.E.2d 167 (1997). However, the Recall Act provides for only limited judicial review of the legal sufficiency of the recall application, and prohibits discovery or evidentiary hearings and any determination of the truth of the statements in the application. OCGA § 21-4-6(f)....
...ive judicial review, the persons who prepare and sign the applications are entitled to absolute immunity under OCGA § 51-5-8. NOTES [1] See OCGA §§ 21-4-1 to 21-4-21. [2] OCGA § 21-4-5. [3] OCGA § 21-4-5(b). [4] OCGA § 21-4-5(f)—(i). [5] OCGA § 21-4-6(a). [6] OCGA § 21-4-6(f); see Collins v....
...246, 368 S.E.2d 311 (1988) (affirming trial court's grant of summary judgment to public officials based on multiple signatures of common authorship and the resultant false affidavit). [12] Davis v. Shavers, 263 Ga. at 786-87, 439 S.E.2d 650. [13] OCGA § 21-4-6(g)....
Copy

Brooks v. Branch, 424 S.E.2d 277 (Ga. 1993).

Cited 8 times | Published | Supreme Court of Georgia | Jan 8, 1993 | 262 Ga. 658, 93 Fulton County D. Rep. 159

...as it pertains to the dismissal of Rick Tomberlin. The legal sufficiency of the applications was certified by the Lowndes County Board of Elections, OCGA § 21-4-5, and the appellees sought and obtained review in Lowndes County Superior Court, OCGA § 21-4-6. The superior court found the grounds for recall set forth in the application insufficient, and enjoined the Lowndes County elections superintendent from issuing recall petitions to the appellants. We affirm the superior court's decision. 1. OCGA § 21-4-6 (f) ("subsection (f)") sets forth the procedure for review of a recall application by a superior court: [1] Such review shall be limited solely to a review of the legal sufficiency of the recall ground or grounds and the legal sufficiency o...
...at 280, lacking reasonable particularity, or fails to allege conduct which would constitute one of the statutory grounds for recall. Therefore, the facts alleged in support of grounds for recall asserted are insufficient. 5. The appellants also contend that OCGA § 21-4-6 (f) denies both sides of a recall controversy the opportunity to present factual information necessary to the trial court's decision-making, in violation of constitutional due process guarantees....
...J., Benham, Fletcher and Hunstein, JJ., concur. NOTES [1] Subsection (f) was added when the Recall Act was amended in 1991. Before that amendment, a superior court reviewing the legal sufficiency of a recall application was required to hold an evidentiary hearing (former OCGA § 21-4-6 (d))....
Copy

Davis v. Shavers, 439 S.E.2d 650 (Ga. 1994).

Cited 7 times | Published | Supreme Court of Georgia | Feb 7, 1994 | 263 Ga. 785, 94 Fulton County D. Rep. 482

...S93A1616, S93A1617 and S93A1618. Appellants sought the recall of two City Councilmen and the Mayor of Fort Oglethorpe, the appellees in these cases. Appellees thereafter sought judicial review of the legal sufficiency of the applications pursuant to OCGA § 21-4-6 (a). Following the procedures of OCGA § 21-4-6 (f), the trial court found, in each case, that the recall application was legally insufficient, and enjoined the election superintendent from issuing recall petition forms. Additionally, the trial court denied appellees' motions to declare portions of OCGA §§ 21-4-3 and 21-4-6 unconstitutional....
...S93A1616 through S93A1618, appellants appeal the trial court's finding that the recall applications were legally insufficient. *786 In Case Nos. S93X1734, S93X1735 and S93X1736, the appellees cross-appeal the trial court's determination that OCGA §§ 21-4-3 and 21-4-6 withstand the constitutional challenges made....
...egation failed to state why this vote constituted either malfeasance or misconduct. Because we conclude that the trial court's findings are not clearly erroneous, Steele v. Honea, 261 Ga. 644, 646 (409 SE2d 652) (1991), they are affirmed. Under OCGA § 21-4-6 (f), the trial court is required to review the legal sufficiency of the grounds for recall and the alleged facts upon which the grounds are based "as set forth in such recall application." Because neither discovery nor an evidentiary hearin...
...her an act of misconduct or malfeasance. Therefore, the trial court did not err in finding the application legally insufficient. Case Nos. S93X1734, S93X1735 and S93X1736 4. Cross-appellants, the City officials sought to be recalled, argue that OCGA § 21-4-6 (f) denies them due process by prohibiting a full and meaningful hearing to determine the truth of the allegations made in the recall application. This issue has been decided adversely to them in Collins v. Morris, 263 Ga. 734 (438 SE2d 896) (1994). 5. Cross-appellants also argue that OCGA § 21-4-6 (g) violates principles of equal protection in that it allows a voter whose application for recall has been determined to be legally insufficient to file an application for discretionary review to this court, but does not provide the same m...
Copy

Hamlett v. Hubbard, 416 S.E.2d 732 (Ga. 1992).

Cited 7 times | Published | Supreme Court of Georgia | May 28, 1992 | 262 Ga. 279, 92 Fulton County D. Rep. 758

...WELTNER, Presiding Justice. A petition under the Recall Act of 1989 as amended (OCGA § 21-4-1 et seq.) was filed against a county school board member. Factual background The trial court reviewed the sufficiency of the petition as provided in OCGA § 21-4-6, as amended, and held that the allegations of the petition were "insufficient to justify the holding of a recall election." We granted discretionary review. Pleading requirement 1. OCGA § 21-4-6 (f), as amended, provides for judicial review: Such review shall be limited solely to a review of the legal sufficiency of the recall ground or grounds and the legal sufficiency of the alleged fact or facts upon which such ground or grounds...
...have been devoted to the benefit of Meriwether County; nor to what end. 5. (a) The allegations (a) through (c) are nothing more than conclusions. [3] They fail to set out "the alleged fact or facts upon which such ground or grounds are based" (OCGA § 21-4-6 (f))....
Copy

DeLong v. Welch, 533 S.E.2d 724 (Ga. 2000).

Cited 3 times | Published | Supreme Court of Georgia | Sep 11, 2000 | 272 Ga. 730, 2000 Fulton County D. Rep. 3537

...Larkins, Jr., Brian V. Patterson, Atlanta, for appellees. HUNSTEIN, Justice. Appellant Edward DeLong filed an application for a recall petition seeking to recall appellee Bobby Welch, a member of the Rabun County Board of Commissioners. Pursuant to OCGA § 21-4-6, Welch sought judicial review of DeLong's application and, after conducting a hearing, the superior court found insufficient probable cause to support the recall application. We granted DeLong's application for discretionary appeal to consider whether the probable cause standard applied by the trial court in reviewing the sufficiency of the recall application is the standard prescribed by OCGA § 21-4-6(f). Because we find the trial court applied the correct probable cause standard, we affirm. OCGA § 21-4-6(f), as amended in 1998, sets forth the appropriate procedure for review of a recall application....
...able and proper inquiry." See State v. *726 Stephens, 252 Ga. 181, 182, 311 S.E.2d 823 (1984). DeLong correctly does not argue that the trial court erred in applying the "reasonable grounds" standard of probable cause in this recall proceeding. OCGA § 21-4-6(f) was amended in 1998 to provide for judicial review of the factual allegations of a recall application and for the first time imposed the burden on a petition chairperson to prove that probable cause exists to believe that the alleged facts are true....
...ong's recall application were true. DeLong argues, however, that the trial court improperly expanded the probable cause standard by allowing Welch to present counter-evidence and preventing DeLong from presenting hearsay testimony. We disagree. OCGA § 21-4-6(f) expressly provides to the parties a right to timely discovery. If OCGA § 21-4-6(f) were interpreted to deny the subject of a recall petition the right to present evidence at the sufficiency hearing, as argued by DeLong, this discovery provision would be rendered meaningless....
Copy

Phillips v. Hawthorne, 269 Ga. 9 (Ga. 1998).

Cited 1 times | Published | Supreme Court of Georgia | Jan 26, 1998 | 494 S.E.2d 656, 98 Fulton County D. Rep. 325

...tment. Appellant sought the recall of appellees David Hawthorne, Mayor of Auburn, and Ray McCully and Judy Doss, Auburn City Councilpersons. Appellees thereafter initiated judicial review of the legal sufficiency of the applications pursuant to OCGA § 21-4-6 (a). Following the procedures of OCGA § 21-4-6 (f), the superior court found in each case that the facts upon which the grounds for the recall applications were based were legally insufficient.1 We granted appellant’s application for discretionary appeal to consider whether the superi...
...egations. Finding that the superior court’s decision was based on an inappropriately restrictive reading of our opinion in Davis v. Shavers, 263 Ga. 785 (439 SE2d 650) (1994) which has led the court to a clearly erroneous result, we reverse. OCGA § 21-4-6 (f) sets forth the procedure for review of a recall application by a superior court: Such review shall be limited solely to a review of the legal sufficiency of the recall ground or grounds and the legal sufficiency of the alleged fact or...
Copy

George v. Baker, 265 Ga. 858 (Ga. 1995).

Published | Supreme Court of Georgia | Nov 13, 1995 | 463 S.E.2d 124

...George, 265 Ga. 573 (458 SE2d 830) (1995) (affirming that portion of the trial court’s order). See Collins v. Morris, 263 Ga. 734, 737 (438 SE2d 896) (1994) (following a judicial determination that a prior application was legally insufficient under OCGA § 21-4-6 “there is no statutory provision proscribing the filing of an additional application” ) (emphasis supplied). OCGA §§ 21-4-3 (7.1) and 21-4-11 (a). See Hunter, 265 Ga....