CopyCited 1 times | Published | Supreme Court of Georgia | Oct 8, 2020 | 310 Ga. 104
...v. GONZALEZ et al.
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....
...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 ap...
...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)....
...cretary 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....
...[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
unc...
...existing
four-year term.).
Although there is no provision in Paragraph I (a) that allows
for exceptions to the fixed four-year terms for district attorneys or
the requirement for successor elections to be held on a quadrennial
basis, OCGA §
45-5-3.2 (a) states:
In those instances where the Governor fills a vacancy in
the office of district attorney pursuant to Article VI,
Section VIII, Paragraph I (a) of the Constitution, the
vacancy shall be filled by the Govern...
...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.
(Emphasis supplied.)3 By its plain terms, OCGA §
45-5-3.2 (a) allows
a district attorney who is appointed by the Governor within six
3
OCGA §
45-5-3.2 states in its remaining subsections:
(b) A special election shall be held on the same date as the
state-wide November general election which is first held following
the date of the vacancy which is more than six month...
...751, 754 (49 SE 789) (1905)
(“[W]here an office is created or guarded by express constitutional
provision, its scope [cannot] be enlarged or lessened by statute, nor
can the office be filled in any manner other than that prescribed by
the constitution.”). OCGA §
45-5-3.2 (a) is therefore unconstitutional
of Title 21, the “Georgia Election Code.” Any individual elected at
such special election pursuant to subsection (b) of this Code section
shall possess the qualifications to seek an...
...The constitutional provision at issue there
4
We do not address today the General Assembly’s authority to regulate
the length of service of an appointed district attorney within the fixed four-
year term of his or her office. From 1984 until OCGA §
45-5-3.2 was enacted in
2018, former OCGA §
45-5-3 provided, in relevant part, that if a district
attorney vacancy occurred at any time during the final 27 months of a term of
office, “the Governor shall appoint a person to fill such vacancy fo...
...til such
vacancy is filled for the unexpired term of office at a special election . . . [that]
shall be held on the same date as the general election which is first held
following the date of the vacancy[.]” (Emphasis supplied.).
Under OCGA §
45-5-3.2 (a) and (b), if a district attorney appointment is
made more than six months before the expiration of a predecessor’s term, a
special election is held in conjunction with the “November general election
which is first held following the date of the vacancy which is more than six
months after the appointment of [the] individual to fill the vacancy.”
Subsection (d) of OCGA §
45-5-3.2 goes on to state that “[t]he individual elected
in the special election ....
...neral Assembly’s authority
to require, as former OCGA §
45-5-3 (a) (2) did, a special election to take place
before the general election immediately preceding the expiration of the four-
year term. We hold today only that, to the extent that OCGA §
45-5-3.2 allows
an appointed district attorney to serve for a term that extends beyond the fixed
four-year term of his or her predecessor, the statute is unconstitutional.
15
specifically directs that judg...
...lection
for a successor taking place. Thus, the only question that remains is
whether appointees to district attorney’s offices may serve beyond
the unexpired terms of the prior district attorneys as “otherwise
provided by” the law of OCGA §
45-5-3.2 (a).
The answer to that question is no, because the General
Assembly does not have the authority to “otherwise provide by law”
that which is prohibited by specific provisions of the Georgia
Constitution....
...sion.” Morris,
supra,
121 Ga. at 754. Because Paragraph I (a) fixes a four-year term
for district attorneys that a vacancy appointee simply steps into
until a successor can be duly elected in the general election before
that term expires, OCGA §
45-5-3.2 (a) cannot operate to change the
length of that fixed term. To the extent that OCGA §
45-5-3.2
provides otherwise, it is violative of the Georgia Constitution and
may not be enforced.
20
Certified question answered....
