BARROW v. RAFFENSPERGER (Two Cases)

308 Ga. 660

• Court: Supreme Court of Georgia
• Decided: May 14, 2020
• Docket: S20A1029, S20A1031
• Status: Published

Opinion

308 Ga. 660 FINAL COPY

S20A1029. BARROW v. RAFFENSPERGER. S20A1031. BESKIN v. RAFFENSPERGER.

NAHMIAS, Presiding Justice.

These cases involve challenges to Secretary of State Brad

Raffensperger’s decision to cancel the election originally scheduled

for May 19, 2020, for the office of Justice of the Supreme Court of

Georgia held by Justice Keith R. Blackwell. Justice Blackwell’s

current term is set to end on December 31, 2020, and the next

standard six-year term for his office would begin on January 1,

2021.1 However, on February 26, Justice Blackwell submitted a

letter to Governor Brian P. Kemp resigning from his office effective

November 18, 2020. The Governor accepted Justice Blackwell’s

resignation and announced that he would appoint a successor to the

office. Justice Blackwell continues to serve as a full-fledged Justice

1 We recognize that on April 9, the election for various state and federal

offices scheduled for May 19 was postponed until June 9 due to the public health crisis resulting from COVID-19. For simplicity, we will continue to refer to the election at issue in these cases as the May 19 election. of this Court, and he plans to do so until November 18.

The Secretary canceled the May 19 election for the next term

of Justice Blackwell’s office on the ground that his resignation, once

it was accepted, created a vacancy that the Governor could fill by

appointment, and thus no election was legally required. The

appellants in these cases, John Barrow and Elizabeth A. Beskin, each

then tried to qualify for that election but were turned away by the

Secretary’s office. They each then filed a petition for mandamus in

the Fulton County Superior Court, seeking to compel the Secretary

to allow qualifying for, and ultimately to hold, the May 19 election

for the next term of Justice Blackwell’s office. Beskin also asserted

that the Secretary’s decision violated her federal constitutional

rights. The trial court denied the mandamus petitions and rejected

Beskin’s federal claims, agreeing with the Secretary that a current

vacancy was created in Justice Blackwell’s office when his

resignation was accepted by the Governor, which gave rise to the

Governor’s power to appoint a successor.

Barrow and Beskin appeal from the trial court’s orders. They both argue that the court should have granted their petitions

because there is no current vacancy in Justice Blackwell’s office that

the Governor can fill by appointment before the May 19 election and

because the Secretary has no discretion to cancel a statutorily

required election. Beskin also argues that she is entitled to relief

based on her federal claims.

As explained in detail below, we hold that while the trial court’s

reasoning was mistaken, its conclusion that the Secretary of State

could not be compelled by mandamus to hold the May 19 election for

Justice Blackwell’s office was correct. Under the Georgia

Constitution and this Court’s precedent, a vacancy in a public office

must exist before the Governor can fill that office by appointment,

and a vacancy exists only when the office is unoccupied by an

incumbent. Because Justice Blackwell continues to occupy his office,

the trial court erred in concluding that his office is presently vacant;

accordingly, the Governor’s appointment power has not yet arisen.

Unlike earlier Georgia Constitutions, however, our current

Constitution, which took effect in 1983, clearly provides that when an incumbent Justice vacates his office before the end of his term,

his existing term of office is eliminated, and the successor Justice

appointed by the Governor serves a new, shortened term that is

unrelated to the previous incumbent’s term. Consequently, even if

Justice Blackwell’s office is not vacant yet, if his accepted

resignation will undoubtedly create a vacancy in his office on

November 18, his term of office will go with him, and the next six-

year term of his office that would begin on January 1, 2021, will

never exist. The next election will be in 2022, for the next term of

the appointed Justice’s office; the May 19, 2020, election for the next

term of Justice Blackwell’s office will be legally meaningless (as well

as misleading to voters and the public); and the Secretary cannot be

compelled by mandamus to conduct a legally nugatory election.

These cases therefore turn on the question of whether Justice

Blackwell’s prospective resignation, accepted by the Governor, is

irrevocable, so that a vacancy in his office is inevitable by November

18. Barrow argues that Justice Blackwell could lawfully withdraw

his resignation before its effective date, whereas Beskin contends that the prospective resignation, having been accepted by the

Governor, is irrevocable. We conclude as a matter of Georgia law

that a Justice’s unequivocal, written resignation, once unequivocally

accepted, cannot be withdrawn, even with the consent of the

Governor. Accordingly, Justice Blackwell’s office will become vacant

no later than November 18, and the May 19 election for his office

would be an election to fill a future term that will never exist. The

trial court therefore properly denied Barrow’s and Beskin’s petitions

for a writ of mandamus requiring the Secretary to conduct that

legally nugatory election. Because Beskin’s federal claims are

derivative of her claim that the Secretary violated state election law,

those claims fail as well. In sum, although the trial court’s reasoning

was wrong, its ultimate judgments were right, and we therefore

affirm them. See Merchant Law Firm, P.C. v. Emerson, 301 Ga. 609,

614 (800 SE2d 557) (2017) (affirming a trial court’s dismissal of a

mandamus claim as “right for any reason”).

1. Stipulated facts and procedural history.

In the trial court, the parties stipulated to the following pertinent facts.2 Justice Blackwell originally took office on this

Court in July 2012 after his appointment to fill a vacancy. He was

then elected in May 2014 to serve a six-year term of office as a

Justice beginning on January 1, 2015, and ending on December 31,

2020. His office was initially scheduled for election in the

nonpartisan general election on May 19, 2020, for the six-year term

beginning on January 1, 2021, with candidates scheduled to qualify

for that election between March 2 and March 6, 2020.

On February 26, however, Justice Blackwell submitted a letter

to Governor Kemp tendering his “resignation from the Supreme

Court, effective November 18, 2020.” The Governor responded by

letter to Justice Blackwell dated the same day, saying: “I appreciate

you taking the time to apprise me of your resignation, effective

November 18, 2020. Your resignation as Justice of the Supreme

Court of Georgia is hereby accepted[.]” Justice Blackwell continues

2 We note that Justice Blackwell is not a party in either of these cases,

and while he was subpoenaed as a witness in the trial court, his testimony (like that of all the witnesses) was presented by stipulation. Thus, all of the evidentiary facts that the parties deemed pertinent are undisputed. to occupy his office as a Justice of this Court and to perform

the ordinary duties and functions pertaining to that office.

On March 1, the Governor notified the Secretary of State that

he intended to fill Justice Blackwell’s office (and some other offices)

by appointment. Following that notice, the Secretary decided to

cancel candidate qualifying for the May 19 election for Justice

Blackwell’s office and directed his staff to publicize that decision and

not to accept qualifying documents and fees for the election for that

office. Barrow and Beskin each then attempted to qualify for election

to Justice Blackwell’s office, but the Secretary’s staff refused to

accept their qualifying documents and fees. Later that week, Beskin

qualified as a candidate for election to the office currently held by

Justice Charles J. Bethel, which was also scheduled to take place on

May 19.

Barrow and Beskin each then filed a petition for mandamus

against the Secretary in Fulton County Superior Court, asking the

court to order the Secretary to reopen qualifying and hold the

election for Justice Blackwell’s office for the term beginning on January 1, 2021. In addition, Beskin sought injunctive relief under

42 USC § 1983 and attorney fees and litigation costs under 42 USC

§ 1988, claiming that the Secretary acted under color of state law to

violate her “right and privilege to qualify as a candidate for office

and to vote for the candidate of her choice” under the United States

Constitution.

After a joint hearing on the cases on March 13, the trial court

denied both mandamus petitions on March 16 in separate but

similar orders, concluding that pursuant to OCGA § 45-5-1 (a) (2),

Justice Blackwell’s office was vacated when the Governor accepted

his resignation, triggering the Governor’s appointment power and

rendering an election for the office for the term beginning on

January 1, 2021, no longer legally required. The court summarized

its analysis as follows:

This Court finds that, under the express language of the Georgia Constitution and OCGA § 45-5-1, a vacancy existed for Justice Blackwell’s seat as of February 26, 2020 and once Governor Kemp notified the Secretary of State of Governor Kemp’s decision to fill the seat via appointment, Secretary Raffensperger no longer was under a statutory legal duty to hold qualifications for Justice Blackwell’s seat.

The court also denied Beskin’s federal claims, concluding that she

failed to state a claim under 42 USC § 1983 because she did not

“show that her fundamental right to vote has been denied or violated

by the Governor’s lawful use of the appointment power in this case.”

The court “assume[d], without deciding, that Petitioner Beskin’s

claims are not moot.”

On March 18, Barrow filed an emergency motion in the Court

of Appeals asking for expedited consideration of an appeal from the

trial court’s order. The motion was transferred to this Court on

March 19 because the case involves an election contest within our

exclusive appellate jurisdiction. See Ga. Const. of 1983, Art. VI, Sec.

VI, Par. II (2). That same day, Beskin filed a similar emergency

motion in this Court. On March 23, we granted the emergency

motions in part, ordering expedited briefing.3 Barrow’s appeal was

3 Barrow’s and Beskin’s principal briefs were due on Thursday, March

26, the Secretary’s response briefs on Monday, March 30, and the reply briefs on Tuesday, March 31. One of the issues that we directed the parties to address was what remedies may be available that would alleviate the need to decide docketed in this Court on March 24, and Beskin’s on March 25. No

party requested oral arguments. Because the mandamus issues

raised in both cases are similar, we have consolidated the cases for

opinion.4

2. Jurisdictional issues.

Before we can address the merits of Barrow’s and Beskin’s

these cases on an extremely expedited basis, given initial representations that absentee ballots for the May 19 election were due to be mailed to voters no later than April 4. The Court expresses its appreciation to counsel for the parties for meeting those tight deadlines in the midst of the ongoing statewide judicial emergency caused by the COVID-19 pandemic. After reviewing the parties’ briefs, which included the Secretary’s explanation of legal and administrative issues regarding election planning, particularly during the COVID-19 crisis, and the Secretary’s and Beskin’s agreement that adequate relief could be provided if necessary by postponing the election for Justice Blackwell’s office to a date later this year, the Court issued an order on April 3 explaining that we had determined that adequate remedies could be provided to Barrow and Beskin in the event they prevailed, even after absentee ballots for the May 19 election were distributed, and thus that we would not issue an immediate opinion in these cases, although an opinion would be issued as soon as practicable. On April 9, we denied Barrow’s motion to reconsider that order and to issue an opinion without delay. Barrow also filed a supplemental brief on May 12, which we have considered. As all the parties recognize, these cases present important legal questions as to which this Court’s answers will create important precedent; the Court has accordingly worked as quickly as possible under current conditions to issue an opinion that gives those matters the complete and careful consideration they deserve. 4 Two amicus curiae briefs have been filed in support of Barrow — one

by the Advocacy for Action Fund and the other by Fair Fight Action, Inc., The Urban League of Greater Atlanta, Inc., and the Georgia NAACP. claims, we must resolve two jurisdictional arguments raised by the

Secretary: first, that Barrow and Beskin could appeal the trial

court’s orders only by filing and having this Court grant applications

for discretionary review pursuant to OCGA § 5-6-35 (a) (1); and

second, that Beskin’s case is moot because she has qualified as a

candidate in the May 19 election for Justice Bethel’s office. We

conclude that neither of those arguments has merit.

(a) An application for discretionary review is not required to appeal these cases.

Under OCGA § 5-6-35 (a) (1), an application for discretionary

review is required to appeal “decisions of the superior courts

reviewing decisions of . . . state . . . administrative agencies,” even

in cases involving the grant or denial of mandamus that would

otherwise be immediately appealable under OCGA § 5-6-34 (a) (7).

See Selke v. Carson, 295 Ga. 628, 629 (759 SE2d 853) (2014). We

have explained, however, that OCGA § 5-6-35 (a) (1) applies only to

administrative agency decisions that are “adjudicatory in nature, as

opposed to executive or legislative.” Wolfe v. Bd. of Regents of the Univ. Sys. of Ga., 300 Ga. 223, 227-228 (794 SE2d 85) (2016). The

Secretary argues that his office is a state administrative agency,

citing Handel v. Powell, 284 Ga. 550, 550, 552 (670 SE2d 62) (2008),

and that his decision to cancel the May 19 election for Justice

Blackwell’s office, and thus not to allow Barrow and Beskin to

qualify for that election, was adjudicatory in nature because it

involved “an assessment of the particular facts surrounding” the

election — in particular, that Justice Blackwell had resigned and

the Governor had accepted his resignation and intended to fill the

vacancy by appointment — rather than being “of general and future

effect.” Wolfe, 300 Ga. at 228.

This Court’s cases may not define with precision the

parameters of an “adjudicatory” administrative decision, but it is

clear to us that the decision at issue here was not adjudicatory in

nature. The Secretary’s decision to cancel the election for Justice

Blackwell’s office and to direct his staff not to accept qualifying

documents and fees for the canceled election was not made in the

context of a dispute involving any particular person or entity; there was no notice or opportunity to be heard about the issues, or any

apparent administrative procedure; there was no explanation

provided for the decision when it was made; and the decision was

general and prospective, affecting the upcoming qualifying period

and May 19 election for Justice Blackwell’s office for all potential

candidates and all Georgia voters. These cases are clearly

distinguished from the cases on which the Secretary relies. See

Wolfe, 300 Ga. at 227-228 (holding that the Board of Regents’s

decision to terminate Professor Wolfe was adjudicative in nature

because it “was not of general and future effect; rather, it was based

on an assessment of the particular facts surrounding a single

person’s past conduct, it involved an application of Board rules and

policies to that conduct, and it had the immediate and specific

consequence of terminating Wolfe’s contract to serve as a

professor”); Handel, 284 Ga. at 550-551 (involving an appeal brought

by discretionary application from the superior court’s reversal of the

Secretary of State’s decision, made after an evidentiary hearing and

ruling by an administrative law judge, that a particular candidate did not fulfill the residency qualification for the office for which he

had filed qualifying documents). Accordingly, Barrow and Beskin

were not required to file applications for discretionary review in

order to appeal their cases; their notices of appeal were sufficient.

(b) Beskin’s case is not moot.

At the hearing held by the trial court, the Secretary argued

that Beskin’s claims were moot because she had qualified as a

candidate in the May 19 election for Justice Bethel’s office and thus

had availed herself of an adequate alternative remedy to the

mandamus relief that she was requesting. In response, Beskin

asserted that her case was not moot because, if the Secretary were

ordered to reopen qualifying for Justice Blackwell’s office, she could

withdraw from the election for Justice Bethel’s office and instead

qualify for election to Justice Blackwell’s office, noting that OCGA §

21-2-134 (a) (2) allows candidates in a general primary to “withdraw

as a candidate after qualifying but prior to the date of the general

. . . primary.” Beskin also argued that, in any event, the Secretary’s

actions violated her rights as a voter. The trial court concluded that Beskin was not entitled to relief on the merits, so it declined to

address the mootness issue.

On appeal, the Secretary points to OCGA § 21-2-136, which

says that a person cannot “be a candidate” for more than one office

as a Justice to be filled in the same election. Thus, he contends,

Beskin would not benefit from a judgment directing him to open

qualifying for a May 19 election for Justice Blackwell’s office,

because qualifying for the May 19 election for Justice Bethel’s office

has closed and, having “be[en] a candidate” for that office, OCGA §

21-2-136 would render her ineligible to qualify for Justice

Blackwell’s office in the same election. With respect to Beskin’s

claims as a voter, the Secretary argues that her petition alleged only

an injury on behalf of “all voters, including Beskin” for failing to

conduct the election for Justice Blackwell’s office and that she

therefore has not sufficiently alleged an injury or sought a remedy

for her mandamus claim relating to conducting the election as a

general matter.

We begin our analysis by noting that the trial court erred in deciding the merits of Beskin’s claims without first determining

whether her case was moot, because “mootness is an issue of

jurisdiction and thus must be determined before a court addresses

the merits of a claim.” Shelley v. Town of Tyrone, 302 Ga. 297, 308

(806 SE2d 535) (2017). A claim that is moot must be dismissed, not

adjudicated. See id. See also Scarbrough Group v. Worley, 290 Ga.

234, 236 (719 SE2d 430) (2011) (“We address first the issue of

mootness because the dismissal of a moot appeal is mandatory.”).

The trial court’s error on this point does not require us to vacate its

judgment as to Beskin, however, because her claims are not moot.

A case is moot “when it seeks to determine an issue which, if

resolved, cannot have any practical effect on the underlying

controversy, or when such resolution will determine only abstract

questions not arising upon existing facts or rights.” Pimper v. State

of Ga., 274 Ga. 624, 626 (555 SE2d 459) (2001) (footnotes omitted).

See also Randolph County v. Johnson, 282 Ga. 160, 160 (646 SE2d

261) (2007) (“An appeal becomes moot if the rights insisted upon

could not be enforced by a judicial determination.”). Moreover, when an alternative remedy exists that is as “complete and convenient as

mandamus, the extraordinary remedy [of mandamus] will not lie.”

Tobin v. Cobb County Bd. of Ed., 278 Ga. 663, 663 (604 SE2d 161)

(2004). The same is true as to injunctive relief. See id.

In Beskin’s case, however, we need not decide whether her

qualifying for the election for Justice Bethel’s office constituted an

adequate alternative remedy to her qualifying for the election for

Justice Blackwell’s office, or whether having qualified for the

election for Justice Bethel’s office, OCGA § 21-2-136 would preclude

her from withdrawing her candidacy for the May 19 election for

Justice Bethel’s office if a May 19 election were held for Justice

Blackwell’s office. That is because Beskin brought her claims both

as a potential candidate and as a voter. Whether or not she can run

for another office as a Justice, she has a right as a Georgia voter to

pursue a mandamus claim to enforce the Secretary’s duty to conduct

an election that is legally required, which is the duty she claims the

Secretary has with regard to the May 19 election for Justice

Blackwell’s office. She does not need to establish any special injury to bring that claim as a voter. See OCGA § 9-6-24 (“Where the

question is one of public right and the object is to procure the

enforcement of a public duty, no legal or special interest need be

shown, but it shall be sufficient that a plaintiff is interested in

having the laws executed and the duty in question enforced.”);

Manning v. Upshaw, 204 Ga. 324, 324 (49 SE2d 874) (1948) (“Where

a citizen, taxpayer, and voter files a petition for the writ of

mandamus against the mayor and councilmen of a municipality,

asserting that they are extending the terms of office and refusing to

call an election to elect their successors in violation of the [city

charter], and are predicating their position upon the provisions of

an act of the General Assembly . . . , the voter has such interest and

right, and sustains such injury to himself by the enforcement of the

terms of the act, as to authorize him to attack the act as being

unconstitutional.”).

Moreover, the Secretary’s argument that Beskin did not seek a

remedy relating to conducting the election as a general matter is not

supported by the record. In her petition, in addition to asking the trial court to order the Secretary to accept her own qualifying

documents and fees, Beskin asked the court to compel the Secretary

“to discharge all of his duties in connection with conducting an

election contest for Justice Blackwell’s seat as previously scheduled

for May 19, 2020, including conducting such election,” and she also

requested such “other and further relief as may be just and

equitable.”

Accordingly, resolving Beskin’s claims in her favor would have

a practical effect on this controversy — namely, it would lead to an

order requiring the Secretary to reopen qualifying and hold the May

19 election for Justice Blackwell’s office, and Beskin could vote in

that election whether or not she could also be a candidate in it. We

therefore can properly turn to addressing the merits of Barrow’s and

Beskin’s claims.

3. The system for selecting Supreme Court Justices established by the 1983 Georgia Constitution.

Judges in this state and around our nation have historically

been, and still are, selected to fill their offices in a wide variety of ways. See, e.g., U. S. Const., Art. II, Sec. 2 and Art. III, Sec. 1

(establishing the Supreme Court of the United States, with Justices

appointed by the President with the advice and consent of the

Senate, who hold office “during good Behaviour”); Ga. Const. of 1877,

Art. VI, Sec. II, Pars. I and IV (establishing a Supreme Court of

Georgia with three Justices, serving six-year terms, elected by the

General Assembly).5

Under Georgia’s current Constitution — the Constitution of

1983 — most judges in this state, including the Justices of the

Supreme Court, fill their offices in two different ways, for terms of

two different types. The pertinent constitutional provisions are

found in Section VII (“Selection, Term, Compensation, and

Discipline of Judges”) of Article VI (“Judicial Branch”).6

5 The National Center for State Courts has compiled a summary showing

the many different ways in which the 50 states and the District of Columbia currently select their judges. See http://judicialselection.us/ judicial_selection/ methods/selection_of_judges.cfm?state= (last visited May 5, 2020).

6 The discussion that follows will focus on Justices, but it applies as well

to judges of the Court of Appeals and to superior and state court judges (and draws on precedents involving those judges), except that the standard term of office for superior and state court judges is four rather than six years. See Ga. (a) Election to a standard six-year term.

Paragraph I (a) of our Constitution’s judicial selection section

says: “All Justices of the Supreme Court . . . shall be elected on a

nonpartisan basis for a term of six years. The terms of all judges

thus elected shall begin the next January 1 after their election.”

Thus, all Justices who are elected to fill their offices serve a standard

term of six years, beginning on January 1 of the year following their

election.

To implement this provision, a nonpartisan election for that

term must be held in the year at the end of which the incumbent

Justice’s existing term will expire. See OCGA § 21-2-9 (b) (“Justices

of the Supreme Court . . . shall be elected in the nonpartisan general

election next preceding the expiration of the term of office.”). The

election process includes qualifying candidates for the office, holding

the general election, and — if no candidate receives a majority of the

votes — holding a runoff election. As will be pertinent to the

Const. of 1983, Art. VI, Sec. VII, Par. I. Much but not all of the discussion also pertains to judges of other classes of court. discussion of dates in some of the cases and other materials

referenced below, the timing of these steps has changed over the

years.

When the 1983 Constitution was ratified and until 2012,

nonpartisan elections for Justices were held in conjunction with the

general election in early November of even-numbered years, with

qualifying held several months earlier. See Ga. L. 1983, pp. 1194,

1197; Ga. L. 2011, pp. 678, 680. In 2011, OCGA § 21-2-138 was

amended to make the nonpartisan general election coincide with the

general primary election, which typically occurs in May of each even-

numbered year (but occurs in July in the first such election after the

decennial census results are released); if needed, a runoff election is

held in conjunction with the runoff primary election. See Ga. L.

2011, p. 678, §§ 1, 3. See also OCGA §§ 21-2-150 (establishing the

date of general primary elections), 21-2-501 (a) (2) (establishing the

date of primary runoff elections). Qualifying for the nonpartisan

general election for Justice of the Supreme Court now takes place 11

weeks in advance of the election. See OCGA § 21-2-132 (c) (1) (establishing the dates for qualifying for the nonpartisan general

election for Justice of the Supreme Court). Under these statutes, this

year’s general nonpartisan election was scheduled for May 19, with

qualifying from March 2 to 6.7

(b) Appointment to an initial, individualized shorter term.

But all Justices do not initially take office by election for a six-

year term. Under Paragraph III of the Constitution’s judicial

selection section, when a vacancy arises in a Justice’s office, it is

filled not by election but rather by gubernatorial appointment. See

Ga. Const. of 1983, Art. VI, Sec. VII, Par. III (“Vacancies shall be

filled by appointment of the Governor except as otherwise provided

by law in the magistrate, probate, and juvenile courts. . . .”). This

Court recently held that the term “vacancy” as used in Paragraph

III means “a public office without an incumbent.” Clark v. Deal, 298

Ga. 893, 896 (785 SE2d 524) (2016). See also Pittman v. Ingram, 184

7 The post-2011 timetable can leave a much longer period between the

nonpartisan election (usually in May) and the beginning of the standard term of a Justice’s office for which the election is held (on the next January 1) – more than seven months if there is no runoff, as opposed to less than two months under the prior timetable, when Justices were elected in November. Ga. 255, 256-257 (190 SE 794) (1937) (explaining that an “‘office is

not vacant so long as it is supplied, in the manner provided by the

[C]onstitution or law, with an incumbent who is legally qualified to

exercise the powers and perform the duties which pertain to it’”

(citation and punctuation omitted)). OCGA § 45-5-1 establishes

several ways by which the public offices in Georgia may be vacated.8

8 OCGA § 45-5-1 says in full:

(a) All offices in the state shall be vacated: (1) By the death of the incumbent; (2) By resignation, when accepted; (3) By decision of a competent tribunal declaring the office vacant; (4) By voluntary act or misfortune of the incumbent whereby he is placed in any of the specified conditions of ineligibility to office; (5) By the incumbent ceasing to be a resident of the state or of the county, circuit, or district for which he was elected; (6) By failing to apply for and obtain commissions or certificates or by failing to qualify or give bond, or both, within the time prescribed by the laws and Constitution of Georgia; or (7) By abandoning the office or ceasing to perform its duties, or both. (b) Upon the occurrence of a vacancy in any office in the state, the officer or body authorized to fill the vacancy or call for an election to fill the vacancy shall do so without the necessity of a judicial determination of the occurrence of the vacancy. Before doing so, however, the officer or body shall give at least ten days’ notice to the person whose office has become vacant, except that such notice shall not be required in the case of a vacancy caused by death, final conviction of a felony, or written resignation. The decision of the officer or body to fill the vacancy or call an election The next paragraph in the Constitution — Paragraph IV — specifies

the term of office of a Justice who is appointed to fill a vacancy in an

otherwise elected judicial office:

Period of service of appointees. An appointee to an elective office shall serve until a successor is duly selected and qualified and until January 1 of the year following the next general election which is more than six months after such person’s appointment.

Ga. Const. of 1983, Art. VI, Sec. VII, Par. IV (emphasis in original).

Read together, Paragraphs III and IV make it clear that a

judge appointed to an elective office does not inherit and serve out

the remainder of his or her predecessor’s term of office; that

unexpired term, we have explained before, is “‘eliminate[d]’” when

the incumbent judge vacates the office. Heiskell v. Roberts, 295 Ga.

795, 799 (764 SE2d 368) (2014) (quoting Perdue v. Palmour, 278 Ga.

217, 221 (600 SE2d 370) (2004) (Carley, J., concurring)). See also

to fill the vacancy shall be subject to an appeal to the superior court; and nothing in this subsection shall affect any right of any person to seek a judicial determination of the eligibility of any person holding office in the state. The provisions of this subsection shall apply both to vacancies occurring under this Code section and to vacancies occurring under other laws of this state. Palmour, 278 Ga. at 218 (describing the operation of these

constitutional provisions as “clear and unambiguous”). Instead, an

appointed judge has an “entirely new and shortened initial term of

office,” Heiskell, 295 Ga. at 798, the length of which depends on the

date the judge was appointed, the date he or she takes office, and

the date of the next nonpartisan general election. See id. (explaining

that the term of an appointed state court judge “is not determined

at all by his predecessor’s term of office, and indeed cannot be

determined until he is appointed and assumes the office”).9

If the nonpartisan general election is in May, the

individualized term of an appointed Justice may be as short as 14

9 Barrow argues that when a Justice’s office is vacated, the Justice’s term

of office does not end but rather continues until the date that an appointee fills the office. That argument is incorrect under the Constitution and our precedents, as Palmour illustrates. There, the trial court ordered a county election superintendent to conduct scheduled elections for state court judge and solicitor-general after the Governor had accepted the incumbents’ resignations and announced his intent to fill the offices by appointment. See 278 Ga. at 217-218. This Court reversed that order because the offices at issue were vacated before the incumbents’ terms of office ended; we did not consider whether the Governor had actually appointed anyone to fill the vacancies at issue, because it is the incumbent’s vacating the office that eliminates the incumbent’s term of office, not the appointment of a successor. See id. at 219- 221. months (if the appointment comes just over six months before the

next election and the Justice takes office immediately) or as long as

28 months.10 In any event, our Constitution and statutes ensure that

the initial term of an appointed Justice will always be much shorter

than the standard six-year term of an elected Justice.

(c) The two ways of selecting Justices have equal constitutional status and work in tandem.

Barrow, the amici, and the dissent argue that the Governor’s

power to appoint judges is an exception to the general rule that

Justices are to be elected, and we did once describe it that way. See

Clark, 298 Ga. at 895 n.2. That is true, but only in a broad sense: to

continue in office for more than a couple years, every Justice must

win election to one or more standard six-year terms, and over time

Justices of this Court have served many more elected, six-year terms

than appointed, shorter terms. But the second way by which

Justices (and other judges) initially take and hold their offices — by

10 When the nonpartisan general elections were held in November, the

initial term of an appointed judge would be shorter – at least eight months and not more than 22 months. See Palmour, 278 Ga. at 220. gubernatorial appointment — is not some sort of constitutionally

inferior alternative to the election mechanism of Paragraph I. The

constitutional provisions actually work in tandem: Paragraph I

requires an election for a standard six-year term for a Justice,

whenever such a term will actually exist; when a Justice’s office is

vacated before the end of his or her term, Paragraph III says that

the Governor appoints a Justice to fill the office, and Paragraph IV

says that the appointed Justice will serve a different, shorter term,

at the end of which there will be an election if the Justice wishes to

continue serving.

To be crystal clear, given the dissent’s assertions that we are

giving appointments precedence over elections: the 1983

Constitution does not exempt appointed Justices from elections, but

it does say expressly and specifically when an appointed Justice

must face election. To put this point in statutory terms, as noted

earlier, OCGA § 21-2-9 (b) says that Justices “shall be elected in the

nonpartisan general election next preceding the expiration of the

term of office.” When an incumbent Justice vacates his or her office before his or her term ends, the date of “expiration of the term of

office” changes from December 31 of the year in which the prior

incumbent’s term would have ended to December 31 of the year in

which the appointed Justice’s term will end as calculated based on

Paragraph IV.

We cannot ignore the import of Paragraph IV’s definition of the

initial period of service for judges appointed to elective office,

because it was a significant change from prior Georgia

Constitutions, under which an appointed judge simply served out all

or part of the unexpired term of the prior incumbent. See Heiskell,

295 Ga. at 799 (explaining that “‘[u]nlike the prior constitutional

provisions . . . , Art. VI, Sec. VII, Par. IV of the Georgia Constitution

of 1983 eliminates the unexpired term of the vacant office,’” so “there

is no longer such a thing as an appointment to serve out the

‘unexpired term’ of an appellate, superior, or state court judge”

(citations omitted)); Hooper v. Almand, 196 Ga. 52, 58-62 (25 SE2d

778) (1943) (describing and applying the prior constitutional

scheme). See also Palmour, 278 Ga. at 220 (discussing Hooper’s “obsolescence”). When constitutional language is substantively

changed, we must give that change effect. See, e.g., Clark, 298 Ga.

at 898-899 (explaining that because later Constitutions omitted the

provision in a 1906 constitutional amendment requiring newly

created Court of Appeals judgeships to be initially filled by election,

the later Constitutions indicated that such judgeships may be filled

by appointment). See also Ga. Dept. of Natural Resources v. Center

for a Sustainable Coast, 294 Ga. 593, 599 (755 SE2d 184) (2014)

(overruling precedent that minimized the effect of a major change in

constitutional language regarding sovereign immunity).

That this change in our constitutional system of selecting

Justices was significant is further demonstrated by the fact that the

serve-out-the-existing-term way of determining the initial term of

appointed officials remains applicable to most other appointed

public officials in Georgia and indeed to the subset of judges who

serve in offices that are always appointed rather than elected. See

Ga. Const. of 1983, Art. V, Sec. II, Par. VIII (a) (“When any public

office shall become vacant by death, resignation, or otherwise, the Governor shall promptly fill such vacancy unless otherwise provided

by this Constitution or by law; and persons so appointed shall serve

for the unexpired term unless otherwise provided by this

Constitution or by law.”); Heiskell, 295 Ga. at 799 (“The same Article

and Section of the 1983 Constitution that abolished the old system

for the selection and terms of office of appellate, superior, and state

court judges explicitly preserved the then-existing system for ‘(a)ll

other judges . . . until otherwise provided by local law’ and

authorized the filling of ‘(v)acancies . . . in the magistrate, probate,

and juvenile courts’ by methods other than gubernatorial

appointment if ‘otherwise provided by law.’” (quoting Ga. Const. of

1983, Art. VI, Sec. VII, Pars. I and III)). We have explained that the

specific language of Paragraphs III and IV of the judicial selection

section in Article VI prevails over more general provisions relating

to the Governor’s authority to fill vacancies in Article V. See

Palmour, 278 Ga. at 219.11

11 Notably, the two Georgia cases relied on by the dissent for the proposition that Paragraphs III and IV are inferior to Paragraph I and that We have also explained that Paragraph IV represents “a

practical balance between democracy and stability”:

[O]n one side of the coin, someone appointed to fill a vacancy occurring at the beginning of a six-year term will not be immune from voter consideration for that entire period; he would have to run in the next general election. On the other side of the coin, someone appointed between June and November of a general election year [when the nonpartisan general election was held in November] would not have to run immediately and would have a

“the appointment process is for emergency situations” were decided under the pre-1983 judicial selection system that did not include Paragraph IV. See Mitchell v. Pittman, 184 Ga. 877, 885 (194 SE 369) (1937) (opinion of Russell, C. J., for an equally divided Court); Stephens v. Reid, 189 Ga. 372, 379 (6 SE2d 728) (1939). The only post-1983 case that the dissent cites, Brooks v. State Bd. of Elections, 848 FSupp. 1548, 1577 (S.D. Ga. 1994), is a curious choice for the dissent’s argument. In that case, the federal district court recognized that under the 1983 Constitution, elections and appointments co-exist, with elections occurring when the judge’s term of office is expiring: “The Georgia judicial electoral system involves aspects of both election and appointment. The vast majority of judges in this state have reached the bench via appointment. All judges and justices are subject to challenge in open elections at the expiration of their term of office.” Id. at 1557 (emphasis added). The court further recognized that “[i]n [the 1983] Constitution, the people of the State of Georgia significantly increased the breadth of the Governor’s authority to appoint.” Id. at 1567. And ultimately, the court refused to approve a proposed settlement agreement which would have replaced contested elections entirely with a new system of judicial appointments and retention elections that “would violate Georgia statutory and constitutional law” and would, “through the coercive and injunctive powers of this Court as opposed to the normal legislative and political processes, effectively amend the 1983 Georgia Constitution.” Id. at 1577. Similarly, this Court has no legitimate authority to effectively amend our current Constitution by judicial opinion by limiting the Governor’s power to fill vacancies in judicial offices as stated in Paragraph III or by altering the term of service of the judges so appointed as stated in Paragraph IV. little over two years to demonstrate his qualifications as a judge . . . .

Palmour, 278 Ga. at 220 (citation and punctuation omitted).

Directly contrary to Barrow’s and the dissent’s argument, this Court

has held that this approach

was not intended to, nor does it in fact, disenfranchise voters. It is not in conflict with the mandate in [Paragraph I] that superior court and state court judges [and appellate judges] are to be elected on a nonpartisan basis for a four-year [or six-year] term. As its drafters envisioned, the six month provision gives the voters the right to select the holders of elective office, yet affords the appointee a sufficient opportunity to demonstrate the merit, or lack thereof, of the appointee’s service.

Id. at 220-221. The people of Georgia endorsed this new approach

when they ratified the 1983 Constitution. And in fact, the

appointment mechanism for initial service of Justices provided in

Paragraphs III and IV has been the norm, not the exception, in the

more than 35 years that we have lived under this Constitution: of

the 18 Justices who first took office during that time, all but one —

Justice John J. Ellington — was initially appointed by a Governor

to fill a vacancy and served an initial term not of six years, but rather a shorter term calculated under Paragraph IV.

(d) The effect of a vacancy on an election for a Justice’s office.

As just explained, when an incumbent Justice vacates his or

her office before the end of his or her term, the incumbent’s

unexpired term disappears with the incumbent, along with any

hypothetical future terms associated with that incumbent. The

Governor then has the duty to fill the vacancy by appointment; the

appointed Justice’s term of office will be individualized and much

shorter than the standard six-year term, calculated based on when

he or she is appointed and fills the office; and the next election will

be for a standard six-year term for the appointed Justice’s office, not

the prior incumbent’s office. In short, when an incumbent Justice

vacates office, any election to fill the next term of that Justice’s office

becomes nugatory, as there will be no such term of office for the

candidate who wins the election to serve. Such elections are

routinely not held, although we often do not even realize that has

happened.

This point may be illustrated by considering several scenarios, in all of which we will assume that incumbent Justice A was elected

(or re-elected) in the May 2014 election to fill a standard six-year

term running from January 1, 2015, until December 31, 2020, so

that an election for the next term of his office would be planned for

May 2020. First, assume that Justice A resigned shortly into his

term, say in August 2015, and Justice B was promptly appointed

and filled the vacant office that same month. Because Justice B was

appointed more than six months before the next general election in

May 2016, her initial term would continue only until December 31,

2016, and the election for the next term of the incumbent’s office

(now Justice B’s office), which would be for a standard six-year term,

would be held in May 2016. In this scenario, it seems obvious and

uncontroversial that no election should be held four years later, in

May 2020, to fill the next term of Justice A’s office; by then, that seat

would have long been filled by Justice B and then by whoever won

the election for Justice B’s office.12

12 This type of scenario actually occurred recently. In May 2018, Justice

Britt C. Grant, who had taken office by appointment in January 2017, was Next, assume that Justice A — again elected in May 2014 to a

six-year term expiring in December 2020 — did not vacate his office

until August 2019, and the Governor appointed Justice B in

September 2019. The next election more than six months after the

appointment would be the May 2020 election. Justice B’s initial term

would therefore continue until December 31, 2020, and the election

for a six-year term of her office would be held in May 2020. In this

scenario, the election for Justice B’s office would be on the same date

as the election that would have been held for the next term in Justice

A’s office. But again, it seems obvious that only the election for the

next term in the current incumbent’s office (Justice B’s office) would

actually be held.13

elected to her first standard six-year term, which would run from January 1, 2018 until December 31, 2023. But Justice Grant resigned her office less than a year into that term, when she was confirmed as a federal appellate judge; Justice Sarah H. Warren was appointed to fill the vacancy in August 2018. The election for a standard six-year term of Justice Warren’s office is on May 19, 2020 (now postponed to June 9). It would be absurd to think there will be an election in May 2023 for the next term of former Justice Grant’s office. 13 This type of scenario has occurred on several occasions. For example,

Chief Justice Leah Ward Sears resigned in June 2009; her term otherwise would have ended on December 31, 2010, with an election to fill the next term in her office in November 2010. Now-Presiding Justice David E. Nahmias was Finally, assume that Justice A resigned in April 2020, after the

March 2 to 6 period for candidates to qualify for the May 19 election

to fill the next term of his office. The election again would not need

to be held. Justice A’s term of office would be eliminated when his

office was vacated, and the term of the Justice appointed by the

Governor to fill the vacancy would continue until January 1 of 2023,

the year following the nonpartisan general election at least six

months after the appointment — the 2022 election.14 The May 19,

2020 election for the next term of Justice A’s office — a term that

would never exist — would properly be canceled, even if one or more

appointed to fill that office in August 2009; because that was more than six months before the November 2010 election, his initial term also ended December 31, 2010, so an election was held in November 2010 for the next, standard six-year term of his office. There was no election for the next term of Chief Justice Sears’s office. Similarly, Chief Justice Hugh P. Thompson resigned in January 2017; his term otherwise would have ended on December 31, 2018, with an election to fill the next term in his office in May 2018. Justice Michael P. Boggs was appointed to fill the vacancy. Because Justice Boggs’s appointment was more than six months before the May 2018 election, his initial term also ended on December 31, 2018, and an election was held in May 2018 for the next, standard six-year term of his office. There was no election held for the next term of Chief Justice Thompson’s office. 14 The 2022 election would be in July rather than May, assuming that is

the first general election after the 2020 census results are released. candidates had already qualified for that election.15 See Hornsby v.

Barnes, 2002 U.S. Dist. LEXIS 27508, at *2-4, 9-10 (N.D. Ga. 2002)

(finding no violation of Georgia election law in the cancellation of an

election for the next term of office of a superior court judge, because

the judge vacated his office by accepted resignation before the

qualifying period and before the election, even though the Governor

did not appoint a judge to fill that office until after the qualifying

period ended).16

15 This type of scenario also has recently occurred. In 2012, Chief Justice

George H. Carley resigned effective on a date after the qualifying period for the election that would otherwise have been held for the next term of his office. (He had tendered his prospective resignation and it was accepted by the Governor before qualifying.) The election for his office was not held. Instead, the Governor promptly appointed Justice Blackwell to fill the vacancy, and Justice Blackwell’s initial term continued until January 1 of the year following the next nonpartisan general election in 2014, when there was an election for Justice Blackwell’s office (not Chief Justice Carley’s office). Similarly, Justice Robert Benham resigned his office effective March 1, 2020, just before the qualifying period for the May 19 election that otherwise would have been held for the next term of his office. That election was canceled, and the Governor appointed Justice Carla Wong McMillian to fill the vacancy. 16 The statements of the Georgia Constitution’s drafters and the specific

situations they thought they were addressing are not controlling as to the original public meaning of the constitutional text ultimately ratified by the people of Georgia. See Olevik v. State, 302 Ga. 228, 238-239 (806 SE2d 505) (2017). Because judicial elections were in November when the 1983 Constitution was being drafted, the period in which a post-election vacancy could arise was much shorter than it is today, see footnote 7 above, so it is not (e) The Secretary of State generally may be compelled by mandamus to conduct a legally required election, but not when the election will be legally nugatory. The mandamus statute, OCGA § 9-6-20, says in pertinent part:

All official duties should be faithfully performed, and whenever, from any cause, a defect of legal justice would ensue from a failure to perform or from improper performance, the writ of mandamus may issue to compel a due performance if there is no other specific legal remedy for the legal rights . . . .

The Secretary of State has the official duty to conduct certain

elections required by the Constitution and statutes, including

elections for Justices of the Supreme Court. See Ga. Const. of 1983,

Art. V, Sec. III, Par. III and Art. VI, Sec. VII, Par. I; OCGA §§ 21-2-

surprising that the drafters may not have discussed the situation we face in these cases. But it is worth noting that in discussing the changes that would be effectuated by the addition of Paragraph IV, the drafters of the 1983 Constitution contemplated, among other things, that a pending election might be rendered nugatory by the appointment of a judge to fill a vacancy within six months of the election for the next term of his predecessor’s office: DEAN PATTERSON: One problem that might raise if you have a Judge appointed for a vacancy less than six months prior to the election and others qualified to run in that election— MR. DROLET: That eliminates that election. Select Committee on Constitutional Revisions, 1977-1981, Transcripts of Meetings, Committee to Revise Art. VI, Vol. I, meeting of Sept. 9, 1977, p. 73. (emphasis added). We do not place much reliance on this comment, however, because such passing comments of an individual drafter do not control the meaning of the constitutional text; indeed, such comments may be taken entirely out of context — as is the comment quoted in footnote 28 of the dissent. 9 (b), 21-2-50. As demonstrated above, however, a vacancy in an

incumbent Justice’s office eliminates the need under the

Constitution and statutes for an election for the next term of that

Justice’s office. Thus, when such a vacancy arises, the Secretary has

no legal duty to conduct such an election and cannot be compelled

by mandamus to do so. See Palmour, 278 Ga. at 221 (reversing the

superior court’s order directing the county election superintendent

to conduct the elections for the next terms of office for a state court

judge and a solicitor-general who resigned just before the qualifying

period). As noted above, Secretaries of State appear to have

routinely not conducted elections for the next term of office of

resigning Justices — including the election for the next term of Chief

Justice Carley’s office, for which qualifying would have begun before

his resignation became effective. As the Secretary has conceded in

his brief here, however, he cannot lawfully cancel an election (or

qualifying for an election) for the next term of an incumbent

Justice’s office simply because a vacancy in the Justice’s office is

expected or even highly likely to occur. That is because if the election were canceled and the vacancy turned out not to occur, then there

would be no one elected to serve in the next standard term of that

office.

But if a vacancy in an incumbent Justice’s office will inevitably

occur before the Justice’s term of office expires, the Secretary cannot

be compelled by mandamus to conduct an election for the next term

of that Justice’s office. An election has legal meaning only if the

candidate who wins will be entitled to take the office for which the

election is conducted. As discussed above, under our Constitution, if

an incumbent Justice’s office becomes vacant before his or her

existing term ends, that term and any future term associated with

that Justice is eliminated, so an election to fill such a term will, in

legal effect, be nugatory. And OCGA § 9-6-26 says that “[m]andamus

will not be granted when it is manifest that the writ would, for any

cause, be nugatory or fruitless[.]” See, e.g., Halpern Properties v.

Newton County Bd. of Equalization, 245 Ga. 728, 728 (267 SE2d 26)

(1980) (upholding the denial of mandamus to compel a member of a

tax equalization board to indicate his vote on a tax assessment as required by law, because the other two members had voted to

approve the tax assessment so requiring the errant member to

indicate his vote would be “a futile exercise”).

It might be argued that holding an election for the non-existent

next term of a Justice who vacated his office, even if its result would

be legally meaningless, could produce some political or other

abstract benefit for the candidate who wins, such as influencing the

Governor to appoint the winning candidate to fill the vacancy or

increasing the candidate’s name recognition for a future election.

There would be more obvious practical detriment from holding such

an election, including the costs to taxpayers and the burden on

election officials of conducting a legally meaningless election, and

the likelihood that voters and the public would be misled into

believing that the election’s result would have the legally binding

result that elections normally have.

But these policy considerations are beside the point, because

mandamus is concerned with the legal effect of compelling official

conduct. Thus, in Halpern Properties, this Court did not consider whether a vote by the errant board member might have had some

sort of political or other extra-legal effect on that member, on the

votes of his fellow members, or on the public; instead, because the

valid votes of the two members meant as a matter of law that the

tax assessment was approved, the vote of the remaining member,

notwithstanding his failure to fulfill his legal duty to indicate it, was

legally nugatory and could not be compelled by mandamus.

This principle has been stated with greater clarity by other

courts that follow the common-law principles of mandamus. In Hall

v. Staunton, 47 SE 265 (W. Va. 1904), for example, the West Virginia

Supreme Court explained that in determining whether mandamus

would be “unavailing, fruitless, and nugatory,” the question is, “Will

the mandamus avail any useful legal purpose for [the petitioner]?”

because “[a] mere abstract right, unattended by any substantial

benefit to the [petitioner], will not be enforced by mandamus.” Id. at

265-266 (citation and punctuation omitted; emphasis added). In

subsequent cases, that court has applied this rule to situations

where the petitioner sought to compel actions involving elections that would have no effect on the legal consequence of the election:

The personal satisfaction to a candidate of knowing he received a certain number of votes, or that a certain ballot was counted for him, is not a substantial right. It is mere abstract right. For the vindication of such a right mandamus does not lie. . . . It is settled in this State, and generally, we think, that mandamus will not lie when the thing or things sought would be unnecessary, fruitless, unavailing or nugatory; that the court will not compel the doing of a vain thing simply to enforce a mere abstract right unattended by any substantial benefits to the relator. Hall v. Staunton, [supra]. This principle was applied in Ice v. Board of Canvassers [of Marion County, 64 SE2d 331, 331 (W. Va. 1908)], an election case, like this, where we held that mandamus would not lie to enforce such a mere abstract right in order to satisfy the pride or ambition of the petitioner.

Hatfield v. Logan County Court, 167 SE 618, 619 (W. Va. 1933)

(citations and punctuation omitted). Cf. Mahoney v. Bd. of

Supervisors of Elections of Queen Anne’s County, 108 A2d 143, 147

(Md. Ct. App. 1954) (explaining that “this Court has consistently

held that a writ of mandamus should not be issued to demand an

abstract right which would be unaccompanied by any substantial

benefit,” but that mandamus could lie to compel the counting of

ballots that could change the result of an election). Neither Barrow nor Beskin cites any contrary authority.17

For these reasons, mandamus cannot be granted to compel the

Secretary of State to conduct an election to fill the future term of

office of a Justice whose office will definitely be vacated before his

existing term of office ends, thereby eliminating the future term.

4. These cases turn on whether Justice Blackwell’s prospective resignation, once accepted by the Governor, may be withdrawn, and we conclude that Georgia law does not allow such a withdrawal. (a) Justice Blackwell’s office is not yet vacant. The application of the legal principles set forth in the previous

17 The dissent cites one other West Virginia case, State ex rel. Revercomb

v. Sizemore, 22 SE2d 296 (W. Va. 1942), but that decision did not purport to change the principle that a grant of mandamus must have a legal effect, not merely an abstract or political benefit, to not be nugatory; the case turned on what sort of pleading was required in the context of a statewide election with recounts pending in several counties. See id. at 298-299. The dissent also suggests that the winner of an election has a property interest in the office to which he or she has been elected, which cannot be taken without due process, citing Collins v. Morris, 263 Ga. 734 (438 SE2d 896) (1994), and similar cases. As Collins explains, however, a property interest inheres only in “an elected . . . official who is entitled to hold office under state law.” 263 Ga. at 735 (citation and punctuation omitted; emphasis added). See also Eaves v. Harris, 258 Ga. 1, 3 (364 SE2d 854) (1988) (“‘[A]n official takes his office subject to the conditions imposed by the terms and nature of the political system in which he operates.’” (citation omitted)). The cases the dissent cites all involved efforts to remove elected officials who had already taken office, not any question about the validity of their elections. And as we have explained, under our State’s current Constitution, an election for the next term of a Justice who has vacated his office is an election for a term of office that will never legally exist; our law creates no entitlement to fill or hold office for such a non-existent term, and thus creates no property interest in the “winner” of such an election. division to the stipulated facts of these cases is straightforward in

all but one respect. After serving an initial term of office of about 18

months after his appointment in July 2012, Justice Blackwell was

elected in May 2014 to a standard six-year term of office beginning

on January 1, 2015, and ending on December 31, 2020. The next

election for his office would be the nonpartisan general election on

May 19, 2020, with candidate qualifying beginning on March 2 and

ending on March 6; that election would fill the next standard term

in Justice Blackwell’s office, which would start on January 1, 2021,

and end on December 31, 2026.

On February 26, 2020, however, Justice Blackwell formally

tendered his unequivocal, written resignation from the Supreme

Court, effective November 18, 2020, and on the same day, the

Governor unequivocally accepted that resignation effective

November 18. Justice Blackwell is continuing to serve as a Justice,

performing all the duties and functions pertaining to that office. In

the trial court, the Secretary relied on OCGA § 45-5-1 (a) (2) to argue

that Justice Blackwell’s office immediately became “vacated” when his resignation letter was accepted by the Governor; the trial court

agreed and ultimately denied Barrow’s and Beskin’s mandamus

petitions on that ground. But the Secretary does not repeat his

immediate-vacancy argument on appeal, as that argument is clearly

incorrect given this Court’s interpretation of the term “vacancy” as

used in Paragraph III of the judicial selection section of the 1983

Constitution. Justice Blackwell’s office is conspicuously not “without

an incumbent,” Clark, 298 Ga. at 896, but instead “‘is supplied, in

the manner provided by the constitution or law, with an incumbent

who is legally qualified to exercise the powers and perform the

duties which pertain to it.’” Pittman, 184 Ga. at 256-257 (citation

omitted). See also Carey Canada, Inc. v. Hinely, 181 Ga. App. 364,

365 (352 SE2d 398) (1986) (holding that a state court judge lawfully

continued to serve in that office when he entered the order at issue,

notwithstanding his resignation effective the next day, when he

would take office as an elected superior court judge), reversed on

other grounds, 257 Ga. 150 (356 SE2d 202) (1987).

OCGA § 45-5-1 could not alter the meaning of the constitutional term “vacancy” as used in Paragraph III, see Clark,

298 Ga. at 897, and the Secretary now acknowledges that the statute

sets forth how an office can be vacated (e.g., “by resignation, when

accepted”) but not necessarily when the vacancy arises (which the

Secretary now contends will be when Justice Blackwell’s

resignation, accepted by the Governor, becomes effective on

November 18).18 Likewise, it is clear that the Governor’s

appointment of a Justice to fill a vacancy cannot become effective

until the office is actually vacated. See OCGA § 45-5-1 (b) (“Upon the

occurrence of a vacancy in any office in the state, the officer or body

authorized to fill the vacancy or call for an election to fill the vacancy

shall do so without the necessity of a judicial determination of the

18 In concluding that Justice Blackwell’s office was already vacant, the

trial court found “persuasive” an unofficial Attorney General opinion issued in 1999 that said, “[W]ith the offer and acceptance of the resignation . . . , the incumbent’s office has become vacant as a matter of law . . . notwithstanding the fact that the incumbent will continue to lawfully, physically occupy the office and exercise its duties and responsibilities until [the effective date of the resignation].” 1999 Op. Atty. Gen. U99-8, 1999 WL 1027240, at *1. That conclusion was poorly reasoned and is inconsistent with our holding in Clark, although the opinion’s conclusion that “[o]nce [a] resignation is accepted, even if the effective date of the resignation is in the future, it is final and cannot be withdrawn,” id., is in line with our holding below. occurrence of the vacancy. . . .” (emphasis added)); Patten v. Miller,

190 Ga. 123, 142 (8 SE2d 757) (1940) (“There must be a vacancy

before the power or duty of filling it arises.”).

So the question becomes whether Justice Blackwell’s office will

actually be vacated before the end of his existing term, and that

indeed is the question on which these cases turn. Under the

principles discussed above, if Justice Blackwell’s office will

inevitably be vacated on or before November 18, then the Secretary’s

decision to cancel the May 19 election for the next term of Justice

Blackwell’s office is not subject to reversal by mandamus.19 If the

office is vacated before December 31, 2020, Justice Blackwell’s

current term will go with him. The Governor will then have the duty

to appoint a Justice to fill the office, and the appointed Justice’s term

of office will not be measured by Justice Blackwell’s current or

future terms, but rather will start on the day the new Justice takes

office and will continue until January 1 of the year following the next

19We say “on or before,” because it is always possible that Justice Blackwell’s office could be vacated in one of the other ways enumerated in OCGA § 45-5-1 (a). nonpartisan general election at least six months later — meaning

that it will end on December 31, 2022. So an election held on May

19, 2020 for a term of office that will never come to exist would be

legally nugatory, and the Secretary could not be compelled by

mandamus to conduct it.

On the other hand, however, if Justice Blackwell’s resignation,

notwithstanding its acceptance by the Governor, could be lawfully

withdrawn before Justice Blackwell actually vacates his office, then

no matter how likely it may be that the resignation becomes effective

on November 18, there would be no certainty that his office would

be vacant before December 31 — that is, there would be a chance

that he might complete his existing term — and the Secretary would

be required to conduct a nonpartisan election this year to fill the

next standard term in the office beginning on January 1, 2021.

Thus, these cases boil down to whether, under Georgia law, a

Justice’s “prospective” resignation, tendered unequivocally in

writing but effective only as of a future date, may be withdrawn after

the Governor has formally and unequivocally accepted it as effective on that same date. This Court has not directly addressed this

question before, but for the several reasons that follow, we conclude

that such a resignation cannot be lawfully revoked, even if both the

Justice and the Governor consent to its purported withdrawal before

its effective date.

(b) All existing Georgia law indicates that a Justice’s resignation, once accepted, cannot be lawfully withdrawn.20

The common law of England as of 1776 forms the backdrop of

Georgia law. See Lathrop v. Deal, 301 Ga. 408, 411-412 & n.9 (801

SE2d 867) (2017) (“In 1784, our General Assembly adopted the

statutes and common law of England as of May 14, 1776, except to

the extent that they were displaced by our own constitutional or

statutory law. That adoption . . . remains in force today. See OCGA

§ 1-1-10 (c) (1).” (citation omitted)). At common law, both an official’s

tendering of his resignation and its acceptance by the proper

authority was required to effectuate the resignation, because

20We note that the following discussion deals only with elected and appointed public officials, not all public employees and particularly not those persons whose work for a government is based on a contract. holding public office

was regarded as a burden which the appointee was bound, in the interest of the community and of good government, to bear. And from this it followed of course that, after an office was conferred and assumed, it could not be laid down without the consent of the appointing power.

Edwards v. United States, 103 U.S. 471, 473-474 (26 LE 314) (1880).

See also Floyd R. Mechem, Treatise on the Law of Public Offices and

Officers § 414 (1890) (“At common law, the resignation of a public

officer was not complete, so far as the public is concerned, until it

was duly accepted by the proper authorities.”) (“Mechem”).21 Georgia

codified this common-law rule on resignations 160 years ago, see Ga.

Code of 1860, § 131 (2), and it has remained in our statutes ever

since; as noted above, it is currently found in OCGA § 45-5-1 (a) (2),

which says that “[a]ll offices in the state shall be vacated . . . [b]y

resignation, when accepted[.]”

21A refusal to accept a tendered resignation would not necessarily preclude a vacancy in the official’s office until the end of his term. The official could abandon his office or cease to perform its duties, which is a distinct means of creating a vacancy under Georgia law. See OCGA § 45-5-1 (a) (7); Parkerson v. Hart, 200 Ga. 660, 663-664 (38 SE2d 397) (1946) (applying a previous version of this statutory provision). When a resignation is intended to take effect immediately

upon its acceptance and the two acts closely coincide, no issue of

withdrawal arises. But resignations and their acceptance may also

be prospective — i.e., effective as of a specific future date — which

has long been common practice in Georgia and beyond. See, e.g.,

Carey Canada, Inc., 181 Ga. App. at 365; Hornsby, 2002 U. S. Dist.

LEXIS 27508, at *2. See also Duncan v. Poythress, 657 F2d 691, 693-

695 (5th Cir. Unit B 1981) (analyzing whether a Justice’s

resignation, which was tendered and accepted effective as of the last

day of the term he was serving and the day before the term to which

he had been elected just before tendering the resignation, was

intended to resign from both terms or only the ongoing one). Cf.

Partain v. Maddox, 227 Ga. 623, 625, 632-633 (182 SE2d 450) (1971)

(holding that an undated letter of resignation demanded by the

Governor before the official’s appointment to a term of office was

invalid). This leads to the question of whether a prospective

resignation, once accepted, may be lawfully withdrawn before the

officer actually vacates his office. We have found no expression of the common-law rule on

resignations that mentions the prerogative of an official to withdraw

his resignation after its acceptance, either unilaterally or with the

consent of the accepting authority. Nor has withdrawal ever been

included in or alluded to by the text of the Georgia statute on

vacancies. OCGA § 45-5-1 (a) (2) says simply that a “resignation,

when accepted,” is sufficient to vacate an office.

There is Georgia precedent for the proposition that a public

official may withdraw his resignation before it is properly accepted,

because the resignation cannot be effective before that point. See

Henry County Bd. of Registrars v. Farmer, 213 Ga. App. 522, 522

(444 SE2d 877) (1994). But that case does not suggest that the result

might be the same after a resignation is accepted. And the only

decision of this Court that appears to touch on this issue indicates

that an accepted resignation by a Justice would be irrevocable. In

Smith v. Miller, 261 Ga. 560 (407 SE2d 727) (1991), the Court noted,

with a citation to OCGA § 45-5-1 (a), that it had temporarily

enjoined the Governor from accepting the resignations of the appellants (a Justice and a Court of Appeals judge), apparently to

prevent the merits of their appeal from becoming moot. See id. at

560 & n.1, 564 n.3. Such an injunction would have been unnecessary

if the resignations could be withdrawn even after acceptance.22

Because there is no indication in Georgia law, or in the old

English common law that undergirds our law, that a public official’s

accepted resignation may be withdrawn, the burden is on Barrow

and Beskin to demonstrate why we should adopt such a doctrine.23

22 We note that in Duncan, the federal appellate court said the following

in the course of discussing the district court’s extensive findings of fact regarding whether Justice Bowles’s November 1980 accepted resignation was intended to vacate both his existing term of office and the next term to which he had just been elected, which began on January 1, 1981: [T]he district court found that Justice Bowles did not intend to rescind his resignation by taking the oath of office for the upcoming term on December 15, 1980, and by briefly entering upon the duties of that office on January 5, 1981. Very little evidence was presented to indicate that Justice Bowles intended to rescind his earlier withdrawal, or that the governor consented to that rescission. 657 F2d at 694. This discussion pertained to Justice Bowles’s subjective intent when he submitted his resignation in November. See id. at 695. To the extent the quoted passage could be read to suggest that Georgia law permits rescission of an accepted resignation, the court cited no legal authority for that proposition, from Georgia or anywhere else, and in any event the federal court’s unsupported view of our State’s law has no precedential effect. See footnote 27 below. 23 In our expedited briefing order, we specifically directed the parties to

address the withdrawal issue. Beskin does not seek to do that; instead, in her principal brief, she

argues that a Justice’s resignation, accepted by the Governor,

cannot be withdrawn. And Barrow offers little support for the

contrary position, arguing primarily that we need not decide this

issue because Justice Blackwell’s accepted resignation has not yet

taken effect. But as demonstrated above, whether his accepted

resignation definitely will or merely may create a vacancy in his

office before his current term ends is the issue upon which these

cases turn.

(c) The law of other jurisdictions is not consistent, but the better- reasoned cases do not allow accepted resignations to be withdrawn.

We have also looked beyond Georgia law to see if there is a

consensus view across the country that could convince us that

accepted resignations may be withdrawn. There is not. We note first

that some states have abandoned the common-law resignation rule

by allowing public officials to resign unilaterally, without the need

for acceptance. See, e.g., Meeker v. Reed, 232 P 760, 762 (Cal. Ct.

App. 1924); State ex rel. Ryan v. Murphy, 97 P 391, 394 (Nev. 1908). In most (but not all) of those states, the official also may unilaterally

withdraw a prospective resignation before it takes effect. See, e.g.,

Murphy, 97 P at 395-396; People v. Porter, 6 Cal. 26, 28 (1856).

Compare People v. Kerner, 167 NE2d 555, 558 (Ill. 1960) (reasoning

that because a resignation need not be accepted to take effect, it is

irrevocable when tendered, even if it will not take effect until a

future date). The law of these states sheds little light on the law of

a state like ours that adheres to the basic common-law resignation

rule.

Looking then to the states that continue to follow the common-

law rule with respect to resignations creating a vacancy only upon

proper acceptance, some courts allow prospective resignations to be

withdrawn by mutual consent of the official and the accepting

authority. See, e.g., Saunders v. O’Bannon, 87 SW 1105, 1106 (Ky.

1905); State ex rel. Van Buskirk v. Boecker, 56 Mo. 17, 18-19 (Mo.

1874); Biddle v. Willard, 10 Ind. 62, 66-67 (Ind. 1857). But these

opinions do not appear to be rooted in the English common law; we

have found in none of them a common-law case cited in support of the holding (one of the leading cases of this sort, Biddle, cites no law

at all for its holding).24 And even in these states, the authority to

withdraw an accepted resignation is limited: if an appointee to the

office that is expected to be vacated has been named, the appointee

is said to have acquired “intervening rights” that preclude the

resigning official and the accepting authority from thereafter

agreeing to withdraw the resignation. See, e.g., Saunders, 87 SW at

1106; Boecker, 56 Mo. at 18-19; Biddle, 10 Ind. at 67. See also

Mechem, supra, at § 133 (“A prospective appointment to fill an

anticipated vacancy in a public office . . . is, in the absence of express

law forbidding it, a legal appointment, and vests title to the office in

the appointee.”).

Many states that still follow the common-law rule requiring

resignations to be accepted have followed a different path. Their

24 The language on withdrawal of resignations that the dissent quotes

from § 417 of Mechem’s treatise is simply a quotation from Biddle, which as noted, cites no authority. Unlike the propositions for which we have cited that treatise, Mechem does not purport to be reciting the common-law rule on this point. Moreover, Mechem goes on in the same section to say, much more equivocally, “So certainly an accepted resignation can not be withdrawn, unless, perhaps, in those cases where the power to accept and the power to fill the vacancy are in the same officer or board.” courts hold that a public official’s resignation, once accepted, is

irrevocable, regardless of whether the resignation is immediate or

prospective. See, e.g., Fitzpatrick v. Welch, 527 P2d 313, 314-315

(Idaho 1974); Warner v. Selectmen of Amherst, 95 NE2d 180, 183

(Mass. 1950); Rogers v. Carleton, 110 P2d 908, 909 (Okla. 1941);

Murray v. State, 89 SW 101, 102 (Tenn. 1905). See also Rider v. City

of Batesville, 245 SW2d 822, 823-824 (Ark. 1952) (“Although there

is authority to the contrary, the preferable rule is stated in 67 C.J.S.,

Officers, § 55 f., as follows: ‘If an acceptance is regarded as essential

in order to render a resignation effective, an unconditional

resignation to take effect at a future date may not be withdrawn

after it has been accepted.’”).

We find the reasoning of these decisions more consistent with

the common-law resignation rule and far more persuasive than the

reasoning of the contrary decisions. As discussed above, the

common-law rule was based on the principle that a public official

had a duty to serve until properly relieved of that duty by the

acceptance of his resignation. Indeed, at common law, if an officer refused to perform his duties, he was subject to penalties. See

Edwards, 103 U.S. at 473, 476. Accordingly, certainty about when a

tendered resignation would become effective was important to

inform the official when he could leave office without liability, and

the rule adopted was that the resignation was effective upon its

proper acceptance. See id. at 476. Indeed, one of the leading cases

for the proposition that a prospective resignation may be withdrawn

by mutual consent acknowledged that “where the common-law rule

is held to prevail, the right to withdraw after there has been an

acceptance of the resignation has been denied.” Murphy, 97 P at 393.

In addition, these courts have recognized that

[i]f . . . any . . . public officer were to be permitted once to indicate his lack of desire to hold an office and tender a resignation to be effective at some date in the future and then withdraw it, then logically he or any other person could do so a second, third, and fourth time ad infinitum. Such conduct could be destructive of the orderly conduct of governmental affairs, [and] the ability of an appointing authority to seek out and secure qualified persons to fill the purported vacancy[.]

Fitzpatrick, 527 P2d at 314-315. See also Murray, 89 SW at 102

(“[P]ublic interest requires that vacillation of purpose on the part of the person resigning should not be encouraged, and the discretion of

the accepting tribunal, when once exercised, should not be

reconsidered.”).25

(d) Conclusion.

After surveying this broader legal landscape, we see no

compelling reason to judicially imply into Georgia law a right for a

public official to withdraw an accepted resignation that has never

been expressed in the common law, our resignation statute, or our

case law. The decisions in other jurisdictions that reject withdrawal

of accepted resignations appear to us better reasoned and more

consistent with the basic common-law resignation rule. That is

enough to decide this issue, although we also recognize that the

contrary view can produce serious practical problems, with little real

benefit, as illustrated by the situation before us.

If Justice Blackwell’s resignation, despite its acceptance by the

25 In attempted rebuttal of this point, the dissent quotes the Nevada

Supreme Court’s discussion in Murphy of the “public policy” regarding withdrawal of resignations. But that is the view of a court that leaves resignation wholly in the discretion of the public official, rejecting the common- law rule requiring resignations to be accepted. Governor, could be withdrawn before Justice Blackwell actually

leaves his office on November 18, it would require that the May 19

election for his office be conducted — only to have the result of that

election rendered legally meaningless if the resignation occurs as

planned. Indeed, Justice Blackwell could have simply waited,

allowed the May 19 election for the next term of his office to go

forward (with or without him as a candidate), and then tendered his

resignation on November 18, had it promptly accepted by the

Governor, and departed his office that same day. If that had

happened, as discussed in Division 3 above, there would be no doubt

that Justice Blackwell’s office was vacant on November 18, that his

term of office expiring on December 31 was eliminated, that the

Governor was empowered to appoint a successor whose initial term

of office would run until January 1, 2023, and that whoever won the

May 19 election would have won nothing of legal value, as he or she

would have no term of office to fill.

By tendering his prospective resignation before the qualifying

period for the election (and having it accepted by the Governor), Justice Blackwell put the Secretary of State, potential candidates,

voters, and the public on notice that his office will be vacated at a

time that will make the election legally meaningless; by so doing, he

also precluded criticism that he was basing the timing of his

resignation on who won or lost the election. The beneficial

consequences of the approach taken by Justice Blackwell would be

unavailable under a doctrine that allowed withdrawal of accepted

resignations. Instead, an accepted prospective resignation effective

after the election date would produce uncertainty about whether the

election would have any legal effect and accusations that the

resignation was announced to deter some or all candidates from

qualifying for the election.

Judicially creating a withdrawal-by-mutual-consent doctrine

would also shift more power over resignations to the Governor, who

would effectively be able to decide whether an official who has

second thoughts about resigning is allowed to remain in office. Our

opinions cannot give Governors more authority over resignations

than is constitutionally and statutorily prescribed. See, e.g., Partain, 227 Ga. at 632; Patten, 190 Ga. at 142-143.

Indeed, even the courts that allow withdrawal of an accepted

resignation by mutual consent appear to agree uniformly that the

opportunity for such withdrawal ends when an appointee to the

office to be vacated is named, so our adopting a similar withdrawal-

by-mutual-consent doctrine would empower the Governor by

allowing him to decide when that opportunity ends. A ruling of this

sort would have us hold that the Secretary could be commanded by

mandamus to conduct the May 19 election for the next standard

term of Justice Blackwell’s office — but only until the Governor

names an appointee to fill the vacancy in that office that is expected

to occur on November 18 based on Justice Blackwell’s accepted

resignation, at which point the resignation would become

irrevocable. If we issued such a judgment, Governor Kemp could

then promptly name an appointee, at which point the election would

become nugatory and the Secretary could again cancel it. Placing

this additional power in the hands of the Governor is not something

that either Barrow or Beskin seeks, and we see no good reason to do so.26

For all of these reasons, we will follow the direction in which

all of Georgia’s existing legal authorities point and the better-

reasoned cases from other jurisdictions support. We hold that after

a Justice’s unequivocal resignation from office is unequivocally

accepted by the Governor, it cannot be lawfully withdrawn,

regardless of whether the accepted resignation has an immediate or

26 This is not to say that the Governor is precluded in any way from going

ahead with the process of selecting and appointing the person who will fill Justice Blackwell’s office after it is vacated on November 18. As Barrow and Beskin correctly argue and the Secretary acknowledges, however, such an appointment would not become effective and the appointee could not fill the office until the vacancy actually exists. See Murphy v. Pearson, 284 Ga. 296, 297 (667 SE2d 83) (2008) (“As a general rule, an appointing authority may make a prospective appointment, that is, an appointment that fills a prospective vacancy before the vacancy occurs.”). See also Mechem, supra, § 133 (“A prospective appointment to fill an anticipated vacancy in a public office, made by the person or body which, as then constituted, is empowered to fill the vacancy when it arises, is, in the absence of express law forbidding it, a legal appointment . . . . Thus where a public officer resigns his office to take effect at a future day, and his resignation is accepted, the appointing power being, as then organized, authorized to fill the vacancy when it shall occur, may appoint a successor, the appointment to take effect when the resignation becomes operative.” (emphasis omitted)). Indeed, as discussed above, the rule that a prospective resignation, once accepted, is irrevocable allows appointing authorities like the Governor to go ahead with the process of appointing a successor so that the vacancy may be filled when or shortly after it occurs, and with persons interested in the appointment having confidence that the vacancy will actually arise. prospective effective date.

5. Beskin’s federal claims also fail.

To be entitled to relief under 42 USC § 1983, a plaintiff must

show that she has been deprived of a right secured by the

Constitution and laws of the United States, and that the defendant

acted under color of state law. See Poss v. Moreland, 253 Ga. 730,

731 (324 SE2d 456) (1985). As Beskin acknowledges, her federal

claims are wholly derivative of the state-law issues underlying her

mandamus claim. State law governs whether and how state judicial

officers are elected, see Williams-Yulee v. Fla. Bar, 575 U.S. 433, 437

(135 SCt 1656, 191 LE2d 570) (2015), and the federal due process

right she asserts protects against “the disenfranchisement of a state

electorate in violation of state election law.” Duncan, 657 F2d at 708

(emphasis added). Accordingly, because we have concluded that the

Secretary did not violate Georgia election law by canceling the May

19 election for Justice Blackwell’s office, Beskin has failed to state a

claim under 42 USC § 1983. See Duncan, 657 F2d at 697-698 (“The

district court recognized that if the Georgia courts should interpret the state’s election laws in a manner that validated the appointment

of Justice Bowles’s successor, then no reason would exist for the

federal courts to decide whether an illegal denial of a special election

violates the United States Constitution.”). See also Hornsby, 2002

U.S. Dist. LEXIS 27508, at *9-10. And because Beskin is not the

“prevailing party” in her case, she is not entitled to litigation costs

and attorney fees under 42 USC § 1988 (b).27

27 Barrow, Beskin, and the amici suggest that claims like the ones brought in these cases may also be pursued in the federal courts. That may be, but as to the interpretation of the Georgia Constitution and Georgia election law, the decisions of this Court are conclusive, and the federal courts are bound by them. See Mullaney v. Wilbur, 421 U.S. 684, 691 (95 SCt 1881, 44 LE2d 508) (1975) (“This Court . . . repeatedly has held that state courts are the ultimate expositors of state law . . . and that we are bound by their constructions except in extreme circumstances[.]”). See also Riley v. Kennedy, 553 U.S. 406, 425 (128 SCt 1970, 170 LE2d 837) (2008) (quoting Mullaney in the context of an election law issue for the proposition that “[a] State’s highest court is unquestionably ‘the ultimate exposito(r) of state law’”); In re Cassell, 688 F3d 1291, 1292 (11th Cir. 2012) (“[T]he Georgia Supreme Court . . . is the one true and final arbiter of Georgia law.”); Elliott v. State, 305 Ga. 179, 202 (824 SE2d 265) (2019) (“It is the role of this Court, not the United States Supreme Court, other states’ courts, or courts of foreign countries, to construe the meaning of the Georgia Constitution in the light of its particular language, history, and context.”). As a judge of the United States Court of Appeals for the Eleventh Circuit once explained in arguing that a state law question should be certified to this Court: From our perspective, state law is what the state supreme court says it is, and a state supreme court’s pronouncements on the subject are binding on every state and federal judge. By contrast, when we write to a state law issue, we write in faint and disappearing ink: what we write does not bind any state court 6. Conclusion.

Barrow, Beskin, and the amici complain about aspects of our

State’s constitutional system for selecting Supreme Court Justices

as we have construed and applied that law in this opinion and our

prior precedents. They (and the dissent) condemn in particular the

idea that a Justice can resign late in his term of office, resulting in

his successor being selected by gubernatorial appointment rather

than election. But as shown above, under our current constitutional

system, elections for the next term of an incumbent Justice’s office

are not made meaningless only by a late-in-term resignation, but

rather by a vacancy arising at any time during an incumbent’s term.

It also should be recognized that this is the first time in the

more than three decades that we have lived under our current

Constitution that an incumbent Justice’s office will be vacated after

the time an election would have been held for the next term of his

judge, and even as to the federal judges in this Circuit, once the state supreme court speaks the effect of anything we have written vanishes like the proverbial bat in daylight, only faster. Sultenfuss v. Snow, 35 F3d 1494, 1504 (11th Cir. 1994) (Carnes, J., dissenting). office, which is the same number of times that an incumbent Justice

(Carol W. Hunstein) has completed a term so that the election for

the next term of her office was not eliminated. Only occasionally

have Justices resigned in the final year of their terms; more common

are resignations earlier in terms, resulting in elections for standard

terms of the appointed successors’ offices at the same time as the

elections would have been held for the resigned Justices’ next terms.

As is true of all judicial selection procedures, there are

reasonable arguments against Georgia’s system, but also good

arguments for it. Those policy arguments are beside the point,

however, with regard to how these cases should be decided, because

that debate was resolved by the people of Georgia when they ratified

their Constitution with this new system in 1983. This Court has no

authority to alter that resolution because of the parties’ (or our own)

policy preferences. The same conclusion pertains here as in Palmour

and Clark:

[T]his case is not resolved by a subjective opinion of how extensive the power of the [G]overnor should be in regard to appointments to elective office. It is determined by the unambiguous mandate of the constitution as ratified by the voters of Georgia. It is about implementing the last expression of the sovereign will of the people, in this case, the Governor’s power to fill vacancies under Article VI, Section VII, Paragraph III of the 1983 Georgia Constitution.

Clark, 298 Ga. at 899 (quoting Palmour, 278 Ga. at 221)

(punctuation omitted). See also State v. Able, 321 Ga. App. 632, 636

(742 SE2d 149) (2013) (“Suffice it to say, it is not the role of a judge

to ‘interpret’ constitutional or statutory provisions through the

prism of his or her own personal policy preferences.”). To the extent

that the judicial selection system is subject to the possibility of

manipulation by the relevant officials (as almost all government

systems are), the checks against such machinations come in forms

other than courts altering the Constitution by judicial fiat, including

the selection of Justices with integrity, the political risks to

Governors who make poor appointments, and of course the ultimate

authority of the people of Georgia to change the Constitution that

governs them.

For the reasons discussed above, the trial court reached the right result in denying Barrow’s and Beskin’s petitions for

mandamus and Beskin’s federal claims, and those judgments are

therefore affirmed.

Judgment affirmed. Melton, C. J., Warren, J., and Judges Richard M. Cowart, Sarah F. Wall, and Timothy R. Walmsley concur. Judges Scott L. Ballard and Brenda Holbert Trammell dissent. Blackwell, Boggs, Peterson, Bethel, Ellington, and McMillian, JJ., not participating. MELTON, Chief Justice, concurring.

Although I concur fully in everything that is said in the

majority opinion, I write separately to emphasize that this case is

not about this Court’s choice between elections and appointments.

To the contrary, this case is about applying the language of Georgia’s

Constitution and corresponding statutory law to determine whether

Governor Kemp may appoint a new Justice to this Court following a

vacancy in Justice Blackwell’s office or whether an election must be

held. Because the merits of appointments and elections have already

been weighed by the people of Georgia when they ratified the

Georgia Constitution of 1983 and by the General Assembly when it

enacted laws regulating the orderly transition of Justices onto and

off of the Supreme Court of Georgia, our job as judges is limited to

applying the law the people of Georgia and their elected

representatives have provided to us.

Doing so, it becomes clear that, by mandate of constitutional

and statutory law as outlined in the majority opinion, the Governor

has the authority to appoint a new Justice to the Court based on the facts presented in this case. Justice Blackwell’s written letter of

resignation has been both tendered to Governor Kemp and accepted

by him. We have held today that, under Georgia law, this makes

Justice Blackwell’s resignation bilaterally irrevocable, ensuring

that, on November 18, 2020, Justice Blackwell’s office will, in fact

and certainty, become vacant. And, at the instant that Justice

Blackwell vacates his office, the terms of office particularly

associated with Justice Blackwell — his current one based on his

2014 election and any future terms — cease to exist. After November

18, 2020, there can be no elected successor to Justice Blackwell’s

next term of office because that term will have vanished.

In more illustrative language, one might think of Justice

Blackwell’s term as his carrying the torch handed to him on the day

he took office at this Court. When Justice Blackwell vacates his

office on November 18, 2020, he will not be handing that torch to a

successor Justice, either elected or appointed. Instead, Justice

Blackwell will be handing that torch to the Governor, at which time

it will be immediately extinguished. No one, even if elected to do so at a prior time, could carry Justice Blackwell’s torch after he vacates

office, because that torch is neither burning nor extant. Instead, by

appointment, the Governor must light a wholly new torch and hand

it to a new Justice. This is simply the manner in which the law works

when we apply the relevant constitutional provisions ratified by the

people of Georgia to the facts of this case.

While I recognize that this matter has prompted a great deal

of public debate regarding the merits and demerits of judicial

appointments and elections (and will likely continue to do so), the

existing law which this Court must apply to the present controversy

is clear: the Governor has the constitutional authority to appoint a

new Justice to this Court in response to the vacancy created by

Justice Blackwell’s resignation. The genius of our democracy is that,

to the extent the people of Georgia now second-guess the system of

elections and appointments they ratified in the 1983 Constitution,

they have the power to seek amendment to that foundational

document. But it is not the job of judges to usurp that power by

rewriting constitutional provisions ratified by the people, or by rewriting laws enacted by the people’s democratically elected

representatives.

I am authorized to state that Justice Warren and Judges

Cowart and Walmsley join in this concurrence. TRAMMELL, Judge, dissenting.

I agree with much of the majority opinion. I agree that this

Court has jurisdiction over this election contest. I also agree that

there is not currently a vacancy on the Court that would authorize

a gubernatorial appointment for Justice Blackwell’s seat. The

majority is correct regarding the Governor’s duty to appoint an

individual to fill a vacancy on this Court and the effect of any such

appointment. However, because an appointment is unlawful in this

circumstance, I must respectfully dissent.

We must reconcile two constitutional provisions. One

guarantees the rights of the voters to determine the next Justice of

the Supreme Court of Georgia. The other grants to the Governor the

right to fill vacancies in such office by appointment. In most

circumstances, the determination is fairly obvious. In this one,

however, there is a direct conflict between the constitutional

provisions requiring election and those providing for

appointment. The majority gives the greater weight to the

provisions allowing appointment. Because I feel that this denies the people the right to elect their Justice as provided by the

Constitution, I cannot agree with the majority position.

The majority asserts, without disagreement, that the

appointment process for vacancies and elections have equal

constitutional status and work in tandem. However, the majority

misses a major point. The power of appointment is an exception to

the general rule requiring that Justices be elected. Appointment is,

in fact, “constitutionally inferior.” The majority seems to indicate

that the provisions regarding appointment prevail over the more

general provisions regarding election. That is contrary to both the

Constitution and prior case authority.

OCGA § 21-2-9 (b): Justices of the Supreme Court, . . . shall be elected in the nonpartisan general election next preceding the expiration of the term of office. (emphasis added).

Ga. Const. of 1983, Art. VI, Sec. VII, Par. I: . . . All Justices of the Supreme Court and the Judges of the Court of Appeals shall be elected on a nonpartisan basis for a term of six years. The terms of all judges thus elected shall begin the next January 1 after their election. . . . (emphasis added). Without question, the constitutional provisions mandate elections

be held. Prior cases from this Court support this view. They stress

the importance of elections in the selection of Justices and

specifically hold that the appointment process is for emergency

situations.

This power of executive appointment is for an emergency, and can be exercised only in case of a vacancy. It can not be exercised to be effective while a duly commissioned incumbent is in office. Mitchell v. Pittman, 184 Ga. 877, 885 (194 SE 369) (1937).

The constitutional design to fill the offices of judges of the superior courts by vote of the qualified electors must be carried in mind. It is distinctive from executive function, and manifests a policy to select the judges by the electorate. This object should also be borne in mind. Id. at 884.

It is well known to all of us that the primary object to be secured by the amendment of 1896 was to withdraw the elective power of the Justices from the General Assembly of the State and to lodge it with the sovereign people, and to increase the number of judges. Stephens v. Reid, 189 Ga. 372, 379 (6 SE2d 728) (1939).

Additionally, the Court finds that certain provisions contained in the consent decree would violate Georgia statutory and constitutional law. A retention election system, such as the one set forth in the consent decree, cannot satisfy the present Georgia constitutional requirement that judges be elected. Brooks v. State Bd. of Elections, 848 FSupp. 1548, 1577 (S.D. Ga. 1994).

The majority views the reference to Brooks by this dissent as

curious, but it is undisputed that the Brooks Court recognized and

enforced the right of the people of Georgia, consistent with the

Constitution, to vote for their judiciary. Even while recognizing the

majority of judges were elected, and rarely beaten in elections, the

potential for that election had to be preserved.

In reality, however, few incumbents are actually challenged in contested elections, and, of the few incumbents who are challenged, even fewer are defeated at the polls. Nevertheless, under the current system, qualified individuals can run against incumbent judges or justices in open elections and when that occurs, the voters choose who will serve them directly; the candidate having a majority of the votes in the election or the highest number of votes in a run-off wins.

Brooks, 848 FSupp.

The people of the State of Georgia have, both individually and through their elected representatives, developed, codified, and ratified the current system of electing judges. Under the current system, the people have reserved for themselves the right, and the corresponding responsibility, to vote directly for their judicial candidates. See GA. CONST. Art. 6, § 7, ¶ 1 (1983); O.C.G.A. § 21-2-138 (1993). It is true that under the current system there are relatively few contested judicial elections, but there is always the potential for one. Within this potential lies the power of choice. By removing this potential, the consent decree would remove from the people the power of direct choice and place that power in the Governor and the Judicial Nominating Committee. This potential is worthy of protection and indeed must be protected under the current Georgia Constitution at least until such time that the Georgia system is legally changed, declared unconstitutional or held to be violative of federal law.

Id. at 1567.

Interestingly, the majority acknowledges that appointment

was an “exception” to the general policy of elections just a few short

years ago. Clark v. Deal, 298 Ga. 893, 896 n.2 (785 SE2d 524) (2016).

Elections for Supreme Court Justices have been guaranteed since

the 1896 amendments to the 1877 Georgia Constitution, and the

right to judicial elections was restated in the 1945, 1976 and 1983

Constitutions. In each of those Constitutions, the Governor was

provided a power of appointment for vacancies. However, this is the

first time that the Governor’s power of appointment is now being

held to be superior to the people’s right to vote. That is ostensibly

due to the language of the timing of the election for the vacated seat. Justice Blackwell submitted his resignation on February 26,

2020. It was accepted by the Governor on the same date. Justice

Blackwell indicated that his resignation would not be effective until

November 18, 2020. We all agree that there is not a vacancy in that

office authorizing an appointment by the Governor, and will not be

until November 18, the date on which Justice Blackwell has

indicated that he will vacate his current position. Under ordinary

circumstances, it is without question that the appointee to that seat

would have the right to remain in the seat without facing the voters

at a general election at least six months after appointment. That is

the balance between “democracy and stability” referenced in Perdue

v. Palmour, 278 Ga. 217, 221 (600 SE2d 370) (2004), and Heiskell v.

Roberts, 295 Ga. 795, 799 (764 SE2d 368) (2014), which quoted the

Transcript of the Select Committee on Constitutional Revision and

brings to light the intent of the drafters of our current state

The difference that requires consideration presently is that

Justice Blackwell’s resignation will not become effective prior to the regularly scheduled election of May 19 (now June 9). He intends to

continue in his office through November 18, some nine months after

his announced resignation, and six months after the regularly

scheduled election for his replacement. The majority would cancel

the scheduled election to allow the Governor to make an

appointment that cannot be made until after the scheduled election.

Why? The majority says that the winner would not be permitted to

take office because of the anticipated appointment, so the election

need not be held. For the first time since the enactment of this

constitutional provision, the majority is ruling that the appointment

power of the Governor trumps the voting power of the public. Let me

be clear. This ruling means that even were the election to go forward

and a winner be declared, the appointee defeats the electee.

Each of the constitutional provisions should be construed

together to determine the appropriate outcome in this

circumstance. While perhaps not subordinate (though the time of

service for the appointment is well less than an election), the provisions providing the right of appointment are not superior to the

right of the electorate.

Established rules of constitutional construction prohibit us from any interpretation that would render a word superfluous or meaningless. Gwinnett County School Dist. v. Cox, 289 Ga. 265, 271 (710 SE2d 773) (2011) (citing Blum v. Schrader, 281 Ga. 238, 241 (637 SE2d 396) (2006)).

The various provisions of the Constitution are not to be interpreted

as contradictory, but rather are to be construed in harmony with one

another. See Lucas v. Woodward, 240 Ga. 770, 774 (243 SE2d 28)

(1978). Interpretation must not be literal or restricted if it will defeat

the intention of the people. “It has been said that the letter of the

law is its body; the spirit, its soul; and the construction of the former

should never be so rigid and technical as to destroy the latter.” Dyer

v. Dyer, 194 SE 278, 280 (N.C. 1937), quoted in Stephens, 189 Ga. at

380.

The majority seems to argue that appointment is the norm,

and therefore, the specific right of the Governor to appoint should

take precedence over the general election requirements. The majority notes that all but one of the 18 Justices who took office

after the enactment of this constitutional provision were initially

appointed by the Governor, the sole exception being Justice John

J. Ellington. However, under the majority opinion, had something

happened to Justice Carol W. Hunstein prior to December 31 of

Justice Ellington’s election year (such as death, resignation, or

abandonment of her office), even though he was the only candidate

in the race, even though the voters elected him in a state-wide race,

and even though he had been declared the winner, Justice

Ellington would not be a Justice on this Court. The majority

opinion holds that the appointment provision would take

precedence over the voting public, and the Governor’s appointment

would take the seat. That cannot be the intention of the drafters of

our Constitution and was never envisioned nor mentioned by those

serving on the Select Committee on Constitutional Revision.28

28 In fact, in an interesting note in the Select Committee on Constitutional Revision, 1977-1981, Transcripts of Meetings, Committee to Revise Art. VI, Vol. I, meeting of Oct. 7, 1977, pp. 32-33, in discussing the Judicial Nominating Committee and who should make appointments thereto, The concern by the Committee was how to provide for

retention after appointment without requiring Justices to

immediately run for election. The concern was the time between

appointment and election, not a time period after election as set

forth in Heiskell, 295 Ga. at 798-799.

Thus, on one side of the coin, someone appointed to fill a vacancy occurring at the beginning of a six-year term will not be immune from voter consideration for that entire period; he would have to run in the next general election. On the other side of the coin, someone appointed between June and November of a general election year would not have to run immediately and would have a little over two years to demonstrate his qualifications as a judge. . . . This is a practical balance between democracy and stability.

(citation and punctuation omitted; emphasis added). (At the time of

that decision, the elections for Justices were in November, not at the

time of the primary as now.) Further review of the transcript reveals

Judge Smith said, “I go along with the idea of letting the Governor do the appointing. We’ve just about taken everything else he’s got away from him; leave him something.” So far from believing they had increased the authority of the Governor, at least this committee member believed it had been decreased. the reasons for the six months provision in the vacancy. While it is

true that the transcript language is not binding on the Court, it does

shed light on the meaning for the enactment, which this Court is

attempting to discern.

“We interpret a constitutional provision according to the original public meaning of its text, which is simply shorthand for the meaning the people understood a provision to have at the time they enacted it.” Elliott v. State, 305 Ga. 179, 189 (824 SE2d 265) (2019) (citation omitted).

Original public meaning is an interpretive principle that we apply to each of our [C]onstitutions. . . . “[T]he Constitution, like every other instrument made by men, is to be construed in the sense in which it was understood by the makers of it at the time when they made it. To deny this is to insist that a fraud shall be perpetrated upon those makers or upon some of them.” Id. at 182 (citation, punctuation and emphasis omitted).

The real issues were the payment of qualifying fees and

having to run in more than one election. The September

appointment and the subsequent election referenced in the

transcript and in the majority note, was a date that, at the time,

was before, not after, the date of the regularly scheduled election. This is also clear from the language that after appointment “you

serve past [the election]”:

JUDGE SMITH: Mr. Chairman, I don’t know whether this is the place to do it or not, but if it isn’t let’s be sure we do it. Let’s put it where the poor fellow doesn’t have to pay two qualifying fees and run in two elections — all in six months of each other like I did last year. That’s just unbelievable. I had to pay two qualifying fees and run three times. JUDGE SNOW: This is supposed to eliminate that.

...

JUDGE CALHOUN: No. He would serve two years and six months but he’d have to run — what we’re trying to eliminate is that a man who — [s]uppose the term does expire on December 31st and somebody’s appointed on September 1st. JUDGE SMITH: That’s exactly what happened to me and I had to pay another qualifying fee in November and I was on the ballot in two places in November. MR. HIGHT: But this eliminates that because it says that when he appoints you, you serve past —

DEAN PATTERSON: One problem that might raise if you have a Judge appointed for a vacancy less than six months prior to the election and others qualified to run in that election — MR. DROLET: That eliminates that election.

... MR. HARRIS: As I recall, if you take six months after November, you get into May. Generally qualifying for primaries are up until May, closed in June. MR. HODGKINS: I think another reason why we did it was people who take over terms sometimes have to qualify both for the remainder of the term and the new term and you’ve got a double qualifying fee and that type thing. CHAIRMAN SNOW: This would prevent them from having to have two — run in two different elections at the time.

All the discussions, and the language quoted in prior Supreme

Court cases, refer to the period between June and November, not

afterward. November, at the time, was the month of election. There

was no discussion of an appointment usurping the results of an

election, and the conversations consistently upheld the sanctity of

elections:

BOB STUBBS: I don’t think there’s any purpose on the part of anybody on the Committee to remove Judges from elections, I think we’re all in accord on that. Select Committee on Constitutional Revision, 1977-1981, Transcripts of Meetings, Committee to Revise Art. VI, Vol. II, meeting of Nov. 9, 1978, p. 47.

JUDGE CALHOUN: I agree with you that judges ought to be elected and they will be elected under this. That’s what we are trying to do. Select Committee on Constitutional Revision, 1977-1981, Transcripts of Meetings, Committee to Revise Art. VI, Vol. III, meeting of June 27, 1980, p. 83.

In this case, there is a scheduled election prior to the date of

Justice Blackwell’s exit from office, during a period in which there

is no lawful vacancy allowing appointment. A “successor” to Justice

Blackwell would be elected by the voters in that election, who is

constitutionally mandated (see “shall” language) to take office on the

following January 1, before any appointment could be made.

There are no other cases in the State (or elsewhere) wherein a

gubernatorial appointment has been made after an election has been

held for the office. There have been those who have qualified for the

race and been advised they could not run. See Hornsby v. Barnes,

2002 U. S. Dist. LEXIS 27508 (N.D. Ga. 2002). There are those that

resigned a prior office to run for a race and were advised that an

appointment would be made. See Perdue, 278 Ga. at 217. In all of

those cases, the right of the Governor to make an appointment was

upheld, but these were all pre-election. The majority seems to think that this is a distinction without

a difference. In the majority view, qualifying is all part of the

election “process” which is secondary to the appointment power.

However, the process does not equate to the election itself.

There has not been another case where an intervening election

would be voided by an anticipated gubernatorial appointment. The

majority opines that it is a foregone conclusion that the Governor’s

appointment would take precedence over any election that would be

held. (The fact that the resignation was made prior to the election

does not change the fact that there will be no vacancy until after the

scheduled election since Justice Blackwell is not leaving his office

until November, which is when a vacancy, by law, will be

established.)

Based on the ruling that the appointment authority is absolute,

the majority makes the final two determinations:

1. Mandamus should not issue because whoever was elected would not be entitled to take the office; and

2. Since Justice Blackwell has no right to withdraw his resignation, even with the consent of the Governor, there is no need to hold the election for this office.

The majority first determines that unless there was a

possibility of a withdrawal of the resignation, then mandamus

cannot be granted because to do so would be a nugatory act. In

support, cases from other jurisdictions are cited which denied

mandamus for (mostly) voting recounts when the expected or alleged

count would not affect the election results. The majority does note

that there may be some political or other benefit from holding the

election, but the cost and the danger of misleading the public into

believing that their vote would make a difference were factors

weighing against that benefit. (In this instance the primary has

been postponed, and a general election is upcoming, so the cost is

questionable.) But in the same types of cases, mandamus may be

appropriate as the West Virginia Supreme Court held in State ex rel.

Revercomb v. Sizemore, 22 SE2d 296 (W. Va. 1942):

Respondents assert that without an allegation or a showing that the result of the election will be changed to the extent that relator will be deprived of the nomination sought that it would be a vain and futile thing to award the writ. We have held many times that such a showing is necessary. This principle is firmly established by the cases cited, however, in each instance a county or district office was involved. We must recognize the futility, if not the impossibility, of attempting to make an allegation of the nature insisted upon by respondents where a state- wide election is involved, especially where, as in this case, the petition shows that recounts are pending in several counties. The distinction between a state-wide election and a county or district election must be recognized because it would be useless to insist upon an allegation which goes merely to the form and not to the substance of the matters sought to be established. Where fifty-five counties are involved and recounts pending, as in this case, how could relator successfully urge that he will lose the nomination unless he is given the relief sought by his petition? For the reasons assigned the writ, as prayed for, is awarded.

Id. at 298-299 (citations omitted). This is a case wherein mandamus

is appropriate.

The Secretary of State has conceded that he cannot cancel an

election based on an expected or highly likely vacancy in the

office. Since there is no vacancy, previous declarations of this Court

appear to indicate that an election is required.

The office under consideration in Stephens v. Reid was that of Chief Justice of the Supreme Court of Georgia. This court said: “As we have pointed out, if no vacancy exists in the office of Chief Justice and the Associate Justices of this court, they are elected by the people at the same time and in the same manner as the Governor and the statehouse officers are elected.”

Copland v. Wohlwender, 197 Ga. 782, 788 (30 SE2d 462) (1944)

(emphasis added).

It, therefore, appears that the law requires an election if there

is no vacancy. And in this instance, we have all agreed there is no

vacancy, and will not be until Justice Blackwell vacates his office.

A further consideration is that avoidance of an election

disenfranchises voters and is violative of the constitutional provision

requiring elections. Duncan v. Poythress, 515 FSupp. 327 (N.D. Ga.

1981), aff’d 657 F2d 691, found that the violation of that right

entitled the deprived voters to sue for that deprivation:

In this case, the plaintiffs contend that the defendants manipulated events to deprive them of their right, granted by the Constitution and laws of the state of Georgia, to vote to fill a vacancy on the Georgia Supreme Court. This court can conceive of no more fundamental flaw in the electoral process than the deprivation of the right to vote altogether. We conclude that, when evaluated in light of the appropriate legal standard, the plaintiffs’ allegations state a claim for relief under section 1983.

Id. at 337. But in determining whether the election would be a “nugatory

act,” the majority stresses that the question is whether the grant of

mandamus will “avail any useful legal purpose for [the

petitioner]?” And the answer in this case is yes. If the election were

held, prior decisions of this Court provide that there is a property

interest in the seat to which one has been elected which cannot be

taken without due process. Collins v. Morris, 263 Ga. 734, 735 (438

SE2d 896) (1994). See also Northway v. Allen, 291 Ga. 227, 230 (728

SE2d 624) (2012); City of Ludowici v. Stapleton, 258 Ga. 868, 869

(375 SE2d 855) (1989). In Eaves v. Harris, 258 Ga. 1, 3 (364 SE2d

854) (1988), the official was held to have a constitutional right to

hold the public office to which he had been duly elected, and that he

could not be deprived of that right without due process.

When we harmonize the constitutional requirements and

review the case authority, it appears that elections are required

when there is no vacancy, and elected officials have a constitutional

right to hold the office to which they have been elected. Therefore, it

follows that the holding of an election would not be a nugatory act, and that the appointment power must bow, after election, to the

right of the voters to elect a successor to the office.

Consider the stark realities of what happens if the election of

the people is denied in this instance.

A. A sitting judge determines he will not run again at the end of his term. An election is held, and a successor elected. The judge dies before the end of the term. The Governor then appoints a replacement, and the election is in essence voided. (This is what would have happened to Justice Ellington had Justice Hunstein not been in such great mental and physical health!)

B. The incumbent runs for election, loses, and then resigns, only to be re-appointed by the Governor.

C. The incumbent does not stand for election, an election is held, the incumbent does not like the result of the election and resigns to avoid the taking of the office by the elected official.

D. What would keep anyone from doing this in any time frame, effectively preventing any justice from being elected? Could one upon date of election say they were resigning on December 30, four years later, and effectively prevent any election being held?

E. What is the result if something happens and the Governor does not make an appointment? Again, while improbable, we are discussing the possibilities of this potential appointment, and not the probabilities. If the Governor did not appoint prior to December 31, when the Constitution mandates that an elected official shall take office, what happens?

F. We have numerous persons that have qualified and are running for judgeships in the election presently scheduled for June 9. Should we have all of them wishing, hoping and praying for the health and safety of the jurist they hope to replace?

None of the cases that have been decided by this Court requires

a different result. There is no case decided by this Court that allows

an appointment to void a regularly scheduled and held election. All

of the cases have been pre-election, even though some have been

after the qualifying period. It is clear from these scenarios that no

appointment should take priority over a regularly scheduled election

by the people.

As an additional matter, I further disagree with the

determination by the majority that the resignation of Justice

Blackwell could not be rescinded by mutual agreement of the

Governor and the Justice. We all agree that the resignation has been

tendered and accepted and that it cannot be unilaterally

withdrawn. However, while not binding or dispositive, language in Duncan seems to indicate that it could be withdrawn by mutual

consent: “Other than the acts specified, the defendants presented no

evidence that Bowles intended to rescind his earlier withdrawal by

taking the oath of office, or that the Governor consented to that

rescission.” 515 FSupp. at 341.

Other states have also held that a prospective resignation such

as the one here can be withdrawn at any time before it is accepted,

and, after it is accepted, it may be withdrawn with the consent of

the authority, excepting where no new rights have intervened. See,

e.g., Civil Service Bd. v. Carter, 363 S2d 858, 859 (Fla. Ct. App.

1978); State ex rel. Conley v. Thompson, 130 SE 456, 459 (W. Va.

1925); State ex rel. Ryan v. Murphy, 97 P. 391, 394 (Nev. 1908); State

ex rel. Van Buskirk v. Boecker, 56 Mo. 17, 21 (Mo. 1874); Biddle v.

Willard, 10 Ind. 62, 66-67 (Ind. 1857).

Mechem is quoted several times by the majority, but both that

treatise and Throop on Public Officials hold the same:

§ 417. Withdrawal of Resignation.—“A prospective resignation,” it is said, “may, in point of law, amount but to a notice of intention to resign at a future day, or a proposition to so resign; and, for the reason, that it is not accompanied by a giving up of the office—possession is still retained and may not necessarily be surrendered till the expiration of the legal term of the office, because the officer may recall his resignation—may withdraw his proposition to resign. He certainly can do this at any time before it is accepted; and after it is accepted, he may make the withdrawal by the consent of the authority accepting, where no new rights have intervened.”

Floyd R. Mechem, Treatise on the Law of Public Offices and

Officers, § 417 (1890) (emphasis added).

Interestingly, the majority also quotes that a prospective

appointment to fill an anticipated vacancy is a legal appointment

and vests title to the office. How are more rights afforded a

potential appointee than a duly elected Justice with due process

rights to the office to which he has been elected?

The majority bases part of its rationale for determining that

this resignation cannot be revoked on the case of Smith v. Miller,

261 Ga. 560 (407 SE2d 727) (1991). However, that case involved

retirement benefits of Judges and/or Justices that had reached the

age of 75. Judge Banke was 75 two days after the petition was

filed, and had he not submitted his resignation, and lost the court action, he would have lost his retirement benefits. The parties

agreed to an order preventing the Governor from accepting the

resignation while the matter was pending, because otherwise, the

issue would have been moot for Judge Banke. That agreement left

open Judge Banke’s ability to withdraw the resignation. There is

no question that a resignation could be withdrawn prior to

acceptance, but after acceptance, it could, at best, only be

withdrawn by mutual agreement. That action just guarded against

a need for mutual agreement.

The majority, citing Fitzpatrick v. Welch, 527 P2d 313, 314-

315 (Idaho 1974), expresses the fear that allowing withdrawals of

resignations would be destructive to the orderly conduct of

governmental affairs and the ability of an appointing authority to

seek out and secure qualified persons to fill the purported

vacancy. However, as stated by the Nevada Supreme Court:

[There is no] force of the argument that the same question of public policy is involved in the withdrawal of a prospective resignation as would exist in the case of an immediate resignation. In the latter case a vacancy is at once created in the office resigned. In the former case there is no present surrender of the office. The public is only interested in having the office filled by some competent person. If before the vacancy actually exists, the officer, who has been duly elected or appointed, elects to rescind his prospective resignation, it is not clearly apparent where the public is liable to suffer any injury.

Murphy, 97 P at 395.

Our contract law allows mutual modification and

rescissions. See Hanham v. Access Mgmt. Group L.P., 305 Ga. 414,

417 (825 SE2d 217) (2019); Pope v. Thompson, 157 Ga. 891, 891

(122 SE 604) (1924); Crop Production Services v. Moye, 345 Ga.

App. 228, 232 (812 SE2d 565) (2018); OCGA § 13-5-7. Accordingly,

there seems to be no reason why, at the very least, the resignation

could not be mutually rescinded. However, whether such

rescission is allowable or not, is not in my opinion determinative.

I am a judge that was initially appointed by Governor Deal

(in a very wise and discerning move, I might add). I am not against

gubernatorial appointments. However, in this instance, when the

resignation will not result in a vacancy in the office until

(originally) almost six months after the election, I cannot in good conscience agree that the election should be cancelled and the will

of the people thrust aside as “fruitless and nugatory.” I respectfully

dissent.

I am authorized to state that Judge Ballard joins in this

DECIDED MAY 14, 2020. Election contest. Fulton Superior Court. Before Judge Richardson. Pope McGlamry Kilpatrick Morrison & Norwood, Wade H. Tomlinson III, Charles W. Byrd, George “Buddy” Darden, Michael J. Moore, Michael P. Morrill, Elizabeth S. White; Akin & Tate, S. Lester Tate III; for appellant. Christopher M. Carr, Attorney General, Russell D. Willard, Senior Assistant Attorney General, Elizabeth T. Young, Elizabeth A. Penland, Bryan K. Webb, Assistant Attorneys General, Andrew A. Pinson, Solicitor-General, for appellee. Krevolin Horst, Joyce G. Lewis, Adam M. Sparks; Hanrahan Freitag Family Law, Monica J. Hanrahan, amici curiae.