FOURTH DIVISION MCFADDEN, P. J., WATKINS and PADGETT, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk's office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.gov/rules
May 27, 2026
In the Court of Appeals of Georgia
A26A0139. BANES et al. v. STATE OF GEORGIA.
PADGETT, Judge.
Appellants Marcello Banes and Stephanie R. Lindsey, who were elected
members of the Newton County Board of Commissioners, were suspended from
their positions pursuant to OCGA § 45-5-6 based on an indictment returned against
them in federal court. They filed separate petitions for declaratory and injunctive
relief, arguing that OCGA § 45-5-6 did not apply to their situations and that if the
statute did apply, it violated their due process and equal protection rights under the
federal and Georgia constitutions. The trial court rejected their arguments in a
consolidated final order, concluding that it was bound by our Supreme Court’s
decision in Eaves v. Harris, 258 Ga. 1 (364 SE2d 854) (1988) (rejecting county commissioner’s due process and equal protection challenges to OCGA § 45-5-6
following his suspension based on a federal indictment), and that, to the extent that
Eaves may have been based on an incorrect assumption about the statute’s
applicability to, and effect on, suspended officials under federal indictment, the
appellants’ due process and equal protection challenges still failed under the
rationale set out in Eaves.
Appellants filed a consolidated notice of appeal to the Supreme Court, seeking
to invoke the Supreme Court’s appellate jurisdiction over constitutional questions.
The Supreme Court transferred the appeal to this Court, noting that “[w]here a law
has been held to be constitutional as against the same attack being made, the case
requires merely an application of unquestioned and unambiguous constitutional
provisions and jurisdiction of the appeal is in the Court of Appeals.” Banes v. State of
Georgia, Case No. S25A1319 (Ga. July 11, 2025) (quoting Zarate-Martinez v.
Echemendia, 299 Ga. 301, 304 (788 SE2d 405) (2016) (punctuation omitted)).
1. Factual and Procedural Background
On June 11, 2024, Banes and Lindsey were indicted by a federal grand jury on
a variety of felony counts related to money laundering, false tax returns, and false
statements to a federal agent. According to the indictment, the charges stemmed
from the transfer of a certain tract of land by the Joint Development Authority of
2 Jasper County, Morgan County, Newton County, and Walton County (“the JDA”),
to a limited liability company (“the LLC”), which then sold the land to a company
with whom Lindsey, an attorney and licensed real estate broker, had a brokerage
agreement. Banes, who was Chair of the Newton County Board of Commissioners
and served as one of Newton County’s representatives on the JDA, facilitated the
brokerage agreement between the company and Lindsey. Under the agreement, once
the JDA — including Banes — voted to approve the sale to the LLC, thereby allowing
the company to close on its purchase of the land, the company paid Lindsey a
commission of $150,000. Without disclosure to the JDA or the company, and in
violation of law, Lindsey then passed $100,000 of the commission to Banes through
a newly-formed business entity they created.
Following the indictment, the Governor suspended Banes from office under
OCGA § 45-5-6, until the expiration of his term of office on December 31, 2024.1 In
November 2024, however, both Banes and Lindsey ran for seats on the Newton
County Board of Commissioners for the term beginning January 1, 2025, and won
1 The suspension followed the recommendation of a statutorily-required review commission, which found that the indictment related to and adversely affected the administration of the office of Chair of the Newton County Board of Commissioners, and that the rights and interests of the public were adversely affected thereby.
3 their respective elections. On March 7, 2025, Banes and Lindsey were suspended
from office pursuant to OCGA § 45-5-6, pending the final disposition of their
criminal case or until expiration of their terms of office, whichever occurred first.2
Banes and Lindsey petitioned for declaratory and injunctive relief, contending
that the Governor exceeded his statutory authority in re-suspending Banes and
suspending Lindsey, and that even if OCGA § 45-5-6 provided the Governor that
authority, their suspensions violated the Due Process and Equal Protection clauses
of the federal and Georgia constitutions. The trial court denied their petitions after
a hearing, and this appeal followed.
2. OCGA § 45-5-6 and Eaves
OCGA § 45-5-6 provides, in relevant part:
(b) Upon indictment for a felony by a grand jury of this state or by the United States, which felony indictment relates to the performance or activities of the office of any public official, the Attorney General or district attorney shall transmit a certified copy of the indictment to the Governor who shall, subject to subsection (e) of this Code section, appoint a review commission. Except as provided in this subsection, the
2 The March 2025 suspension again was based on the recommendation of a review commission, which found that the indictment related to and adversely affected the administration of the office of the Newton County District 3 Commissioner (the seat held by Lindsey) and the office of Chair of the Newton County Board of Commissioners, and that the rights and interests of the public were adversely affected thereby. 4 commission shall be composed of the Attorney General and two public officials who hold the same office as the individual indicted. ...
(c) Unless a longer period of time is granted by the Governor, the commission shall make a written report to the Governor within 14 days. If the commission determines that the indictment relates to and adversely affects the administration of the office of the indicted public official and that the rights and interests of the public are adversely affected thereby, the commission shall recommend that the public official be suspended from office. If, and only if, the commission recommends suspension, then the Governor shall review the findings and recommendations of the commission and may suspend the public officer from office immediately and without further action pending the final disposition of the case or until the expiration of his or her term of office, whichever occurs first. During the term of office to which such officer was elected and in which the indictment occurred, if a nolle prosequi is entered, if the public official is acquitted, or if after conviction the conviction is later overturned as a result of any direct appeal or application for a writ of certiorari, the public official shall be immediately reinstated to the office from which he or she was suspended. While a public official is suspended under this Code section, the public official shall not be entitled to receive the compensation from his or her office. If the public official is reinstated to office, he or she shall be entitled to receive any compensation withheld under the provisions of this Code section. For the purposes of back compensation only, reinstatement may occur after the expiration of the public official’s term of office. ….
5 (i) If a public official who is suspended from office under the provisions of this Code section is not first tried at the next regular or special term following the indictment, the suspension shall be terminated and the public official shall be reinstated to office. The public official shall not be reinstated under this subsection if he or she is not so tried based on a continuance granted upon a motion made only by the defendant.
OCGA § 45-5-6(b), (c), and (i).3
In Eaves, the Supreme Court considered a similar, if not identical, due process
challenge to OCGA § 45-5-6 as appellants present here. There, Fulton County
Commissioner Eaves had been indicted by a federal grand jury on charges related to
taking bribes from a federal agent posing as a developer who was seeking zoning
changes. Eaves, 258 Ga. at 1. Eaves sought to enjoin the Governor from proceeding
under OCGA § 45-5-6, arguing that the statute deprived him of due process and
equal protection and violated the separation of powers. Id.
While recognizing that a public official has a constitutional right to hold the
office to which he was duly elected and that he cannot be deprived of that right by
state action without due process of law, the Court nonetheless rejected Eaves’ due
process challenge, explaining that, in Georgia, a public official “takes his office
3 Originally enacted in 1984 to authorize the suspension of certain public officials who were indicted for felonies under state law, OCGA § 45-5-6 was amended in 1986 to encompass federal felony indictments. See Eaves, 258 Ga. at 1. 6 subject to the conditions imposed by the terms and nature of the political system in
which he operates,” and his right to hold elective office is “dependent upon his not
being indicted for a felony.” Eaves, 258 Ga. at 3(2)(a). As the Court held, OCGA §
45-5-6 “is not unfair; it bears a rational relationship to a compelling state interest—
that of insuring the public’s confidence in government.” Id. As the Supreme Court
explained:
The suspension of an indictee is of limited duration and exacts no loss of compensation. Thus, the act’s measures intrude upon the constitutional rights of the public official only so far as is minimally necessary to maintain the public objectives. If the matter is resolved favorably to the official, he is fully restored to his former status. OCGA § 45-5-6(c). Balancing the public good against the indicted public official’s right to hold office results in the conclusion that this law does not offend traditional notions of fair play and justice. In short, the statute does not on this score violate [the indicted official’s] right to due process.
Id. at 3–4(2)(a) (citation modified).
Furthermore, with respect to Eaves’ challenge to the statute’s alleged failure
to provide adequate procedural due process by not providing him the opportunity to
contest the merits of the indictment before the review commission, the Court
likewise emphasized the “temporary nature of the act’s provisions and the resulting
lesser standard of procedural due process required.” Eaves, 258 Ga. at 4(2)(b). Viewed
7 through that lens, the Court cited the temporary loss of official authority, with no
categorical loss of pay,4 and the procedural guardrail within OCGA § 45-5-6(i),
protecting a suspended official from “prosecutorial foot-dragging” by terminating
the suspension and restoring official authority if the official is not promptly tried. Id.
“Even more important” to the Court, however, was the procedural protection of the
indictment itself, “as the triggering device,” that depended on a properly constituted
grand jury finding that probable cause existed to believe the official had committed a
felony. Id. Finally, the Court noted that before suspension can occur, the review
commission comprised of the official’s peers is required to find that the charge relates
to and adversely affects the administration of the office and that the rights and
interests of the public are adversely affected thereby. See id. All of these
considerations — as measured against the “lesser standard of procedural due process
4 Under the version of OCGA § 45-5-6 in effect at the time of the Court’s decision in Eaves, the public official continued to receive compensation from his or her public office “until initial conviction by the trial court.” See Ga. L. 1986, p. 602, § 2. The General Assembly amended the statute, effective 2022, to provide that suspension is without pay and that if the official is reinstated, he or she shall be entitled to any compensation withheld under the statute; for purposes of “back compensation only,” the statute provides that “reinstatement may occur after the expiration of the public official’s term of office.” Ga. L. 2022, Act 869, § 1. Thus, where final disposition of the criminal case does not result in conviction, under OCGA § 45-5-6(c), the suspension concludes and the official is entitled to back compensation, even if the official’s term of office expired while the criminal case was pending.
8 required” given the temporary nature of the suspension — led the Court to conclude
that “the statute affords adequate due process protection to the public official
pending resolution of the indictment.” Id. at 4–5(2)(b).5
With respect to equal protection, the decision in Eaves suggests that Eaves
claimed he was being treated differently than other elected officials in violation of his
equal protection rights. See id. at 5(4). However, the Court determined that the state
had “a rational basis for treating those public officials laboring under a felony
indictment as a separate class[,]” and consequently found no violation of equal
protection. Id.
3. Banes’ and Lindsey’s Statutory and Constitutional Challenges
Here, Banes and Lindsey claim that the trial court erred in construing OCGA
§ 45-5-6 to authorize a first or second suspension based on an indictment returned
before the public official’s term of office began and in a manner they contend violates
the separation of powers. They also argue that the trial court erred in rejecting their
5 The Court also rejected Eaves’ claim that the Governor’s discretionary authority under the statute deprived him of due process and violated separation of powers. The Court recognized that the Governor’s authority was adequately constrained in a manner that satisfied due process by “the requirement that a body largely composed of the public official’s peers find his suspension warranted.” Eaves, 258 Ga. at 5(2)(c). The Court further found that the Governor’s authority and discretion under the statute did not amount to “an improper delegation of the power to legislate” to the executive branch. See id. at 5(3). 9 due process and equal protection challenges under the federal and Georgia
constitutions. These questions — the trial court’s interpretation of OCGA § 45-5-6
and its holdings regarding the statute’s constitutionality — are questions of law that
we review de novo. See Lue v. Eady, 297 Ga. 321, 326(2)(a) (773 SE2d 679) (2015)
(“The interpretation of statutes … presents a question of law for the court.”); Rhodes
v. State, 283 Ga. 361, 362 (659 SE2d 370) (2008) (“The constitutionality of a statute
presents a question of law.”).
a. Scope of Suspension Authority Under OCGA § 45-5-6
Banes and Lindsey argue that the trial court erred in construing OCGA § 45-
5-6 “to authorize suspensions based on indictments returned before the current term
or before the official assumed office,” and “to authorize serial suspensions based
upon the same pre-election indictment after the prior-term suspension” expired.
They further argue that the trial court’s interpretation of the statute violates
constitutional separation of powers by permitting the Governor to disqualify
individuals from seeking or holding office when the qualifications and eligibility for
such has been determined otherwise by the legislature. We disagree.
We begin by acknowledging the important rules of construction that guide our
interpretation of OCGA § 45-5-6. As we discern its meaning, we presume that “the
General Assembly meant what it said and said what it meant. To that end, we must
10 afford the statutory text its plain and ordinary meaning, and we must view the
statutory text in the context in which it appears, and we must read the statutory text
in its most natural and reasonable way[.]” Deal v. Coleman, 294 Ga. 170, 172(1)(a)
(751 SE2d 337) (2013) (citation modified). “We also must seek to effectuate the intent
of the Georgia legislature[,]” such that “in construing language in any one part of a
statute,” we must “consider the entire scheme of the statute and attempt to gather
the legislative intent from the statute as a whole.” Lyman v. Cellchem Int’l, 300 Ga.
475, 477 (796 SE2d 255) (2017) (punctuation omitted). And where the “statutory
language is clear and does not lead to an unreasonable or absurd result, it is the sole
evidence of the ultimate legislative intent.” Lumpkin County v. Ga. Insurers Insolvency
Pool, 292 Ga. 76, 78(2) (734 SE2d 880) (2012) (citation modified). See also S. States
Chem. v. Tampa Tank & Welding, 316 Ga. 701, 714(2) (888 SE2d 553) (2023) (“It is
the duty of the court to consider the results and consequences of any proposed
construction and not so construe a statute as will result in unreasonable or absurd
consequences not contemplated by the legislature.” (citation modified)).
Here, the plain language of the statute mandates suspension of an official upon
a felony indictment by a state or federal grand jury and a determination by the review
commission that the indictment “relates to and adversely affects the administration
of the office of the indicted official and that the rights and interests of the public are
11 adversely affected thereby.” See OCGA § 45-5-6(b) and (c) (emphasis supplied).
Under the straightforward language of the statute, it matters not when the conduct
at the heart of the indictment occurred — whether before or after election or re-
election — in order to authorize suspension; so long as the conduct relates to and
adversely affects the administration of the office that the indicted official now holds,
the statute authorizes the Governor to suspend the official. Nor does it matter,
according to the plain language of the statute and the legislative intent it evinces, that
Banes’ prior suspension had terminated due to expiration of his previous term of
office. Here, both the indictment itself and the recommendations underlying Banes’
and Lindsey’s suspensions demonstrate that their alleged unlawful conduct was
carried out by virtue of and in dispensation with the administration of the office of a
member of the Newton County Board of Commissioners and that commission’s
representation on the JDA. Both Banes’ and Lindsey’s alleged conspiracy to commit,
and participation in, money laundering directly related to and adversely affected the
administration of the Commission offices they held and the public interest. As such,
when both assumed office on January 1, 2025, OCGA § 45-5-6 authorized their
suspensions, pending final disposition of their criminal cases or expiration of their
terms of office. See OCGA § 45-5-6(c).
12 Notwithstanding the plain language of the statute, Banes and Lindsey argue
that this reading of the statute somehow nullifies or renders meaningless two other
provisions within the statute. More specifically, they first argue that this
interpretation nullifies the sentence in subsection (c) providing that reinstatement to
office shall occur if certain dispositions6 of the criminal proceeding happen “[d]uring
the term of office to which such officer was elected and in which the indictment
occurred[.]” However, by its plain terms and as the trial court correctly held, the
provision relates only to reinstatement on the occurrence of specified events. It does
not establish limits on otherwise prescribed suspension authority, and there is
nothing inconsistent between the scope of the statute’s suspension authority and this
“reinstatement” provision. Appellants’ argument otherwise is without merit.
They similarly argue that a second suspension of Banes based on the same
indictment upon which his first suspension was predicated renders meaningless
subsection (c)’s broad and fundamental provision that a suspension is effective
“pending the final disposition of the case or until expiration of [the public official’s]
term of office, whichever occurs first.” See OCGA § 45-5-6(c). This argument is
6 The particular dispositions that trigger application of this “reinstatement” sentence are “if a nolle prosequi is entered, if the public official is acquitted, or if after conviction the conviction is later overturned as a result of any direct appeal or application for a writ of certiorari.” OCGA § 45-5-6(c). 13 belied by the facts and is likewise without merit. Banes’ first suspension terminated
at the conclusion of his then-existing term of office on December 31, 2024. His
subsequent term began January 1, 2025, and he was not suspended until March 7,
2025; he held public office in the intervening time period. There is nothing about his
second suspension that rendered meaningless the statute’s directive that his first
suspension terminated at the expiration of his preceding term of office.
We thus conclude, as the trial court correctly did, that Banes’ and Lindsey’s
proposed reading of the statute — one in which the state’s ability to safeguard its
compelling interest in protecting the public interest and ensuring the public’s
confidence in government is dependent on the vagaries of when an indictment (that
has been determined to relate to and adversely affect the administration of the office)
may fall within an election cycle — would lead to “an unreasonable and absurd
result.” We decline to adopt an interpretation of the statute that would allow such an
absurd and arbitrary result, in contravention of clear legislative intent as evidenced
by the plain language of the statute. See S. States Chem., 316 Ga. at 714(2).
In a related textual argument, Banes and Lindsey claim that because the
legislature, under OCGA §§ 45-2-1 and 21-2-8, has “exhaustively delineated who
may not qualify to seek or hold county office, namely, persons finally convicted and
sentenced of a felony involving moral turpitude or certain election offenses,” the trial
14 court’s interpretation of OCGA § 45-5-6 that sanctioned disqualification of “a mere
indicted candidate” violated constitutional separation of powers. We disagree.
First, as the trial court appropriately concluded, because OCGA § 45-5-6
provides only for suspension pending final disposition of felony criminal cases
involving administration of the office of the public official or expiration of the
official’s term of office, and the statute does not declare ineligibility or effectuate
removal from office, “statutory qualifications to run or hold office are not
implicated,” and appellants’ separation of powers argument is unpersuasive.
Moreover, in enacting OCGA § 45-5-6, the General Assembly was well within its
constitutional purview to establish other qualifications for office. See Ga. Const. Art.
II, Sec. II, Para. III. See also Eaves, 258 Ga. at 5–6(3) and (5) (rejecting arguments
that OCGA § 45-5-6 represented an improper delegation of the power to legislate and
was pre-empted by constitutional provisions disqualifying certain persons for public
office). Appellants’ claim that the statute violates constitutional separation of powers
is thus without merit.
b. Constitutional Challenges
Banes and Lindsey claim that the trial court erred in concluding that the
Supreme Court’s decision in Eaves foreclosed their due process and equal protection
challenges to OCGA § 45-5-6, and further claim that the statute deprives them of
15 their due process and equal protection rights under the federal and state
constitutions. Based upon the rationale set forth in Eaves and application of the
familiar rational basis test, we disagree that the statute violates either due process or
equal protection under the federal or state constitutions.7
In addition to the direction Eaves provides, we are guided in our determination
of whether OCGA § 45-5-6 comports with due process and equal protection by long-
standing canons of construction. We must recognize that “[d]uly enacted statutes
enjoy a presumption of constitutionality, and the party challenging the statute bears
the burden to show that the statute manifestly infringes upon a constitutional
provision[.]” Williams v. Regency Hosp. Co., LLC, 322 Ga. 452, 455(2) (920 SE2d 131)
(2025) (punctuation omitted). Moreover, “[u]nder the canon of constitutional
doubt, if a statute is susceptible of more than one meaning, one of which is
constitutional and the other not, we interpret the statute as being consistent with the
Constitution.” Sons of Confederate Veterans v. Henry County Bd. of Commrs., 315 Ga.
39, 64(2)(d) (880 SE2d 168) (2022).
7 We generally have treated due process and equal protection rights under our state and federal constitutions as coextensive and evaluated challenges under each constitution together. See, e.g., State v. Holland, 308 Ga. 412, 413 n.3 (841 SE2d 723) (2020). We do so here, as neither appellants nor the State argues that either of the state constitutional provisions at issue is substantively different from the parallel federal provisions. 16 Furthermore, where — as here — a statute does not proceed along suspect
lines or infringe upon fundamental constitutional rights, “equal protection and due
process concerns are satisfied if the statute bears a reasonable relation to a proper
legislative purpose and is neither arbitrary nor discriminatory.” See State v. Holland,
308 Ga. 412, 414(1) (841 SE2d 723) (2020) (punctuation omitted). See also Williams,
322 Ga. at 455(2) (statutory classification not implicating a suspect class or
fundamental rights “must be upheld against equal protection challenge if there is any
reasonably conceivable state of facts that could provide a rational basis for the
classification” (punctuation omitted)). Thus, the questions before us are whether
Banes and Lindsey have met their burden of showing: (1) that their suspensions
under OCGA § 45-5-6 are not rationally related to the General Assembly’s objective
of protecting the public’s rights, interests, and confidence in government, see
Williams, 322 Ga. at 455(2); Eaves, 258 Ga. at 3(2)(a); OCGA § 45-5-6(c); and (2)
that there is no rational basis for the alleged different treatment they maintain they
are afforded under the statute, see Holland, 308 Ga. at 415–16(2).
i. Due Process
With respect to due process, we conclude that the trial court correctly applied
the rationale of Eaves in determining that Banes’ and Lindsey’s March 2025
suspensions are of limited duration and therefore do not deprive them of due process.
17 As a beginning point, we reiterate the Supreme Court’s bedrock holding in Eaves that
OCGA § 45-5-6 “is not unfair; it bears a rational relationship to a compelling state
interest—that of insuring the public’s confidence in government.” Eaves, 258 Ga. at
3(2)(a). In light of subsection (c)’s provision that Banes’ and Linsdey’s suspensions
exist only until final disposition of their cases or expiration of their terms of office,
their suspensions are, in fact, temporary and of “limited duration.” Id. (explaining
that a public employee’s suspension “pending disposition of the criminal charges
thus safeguards the public interest by removing the employee from a position where
he or she might repeat the alleged misconduct and thereby impede the lawful
functioning of the [public office] and destroy public confidence in the [public
office]”).8 Additionally, while the statute now provides for back compensation rather
8 We recognize that in an inapposite footnote, the Eaves decision referenced OCGA § 45-5-6(i) — a subsection not applicable to public officials who are the subject of a federal indictment, Hill v. Kemp, 366 Ga. App. 19, 23–25(1) (880 SE2d 590) (2022) (holding that for purposes of mandamus, subsection (i) related to “term of court” did not confer a clear legal right on an official indicted on federal charges) — as support for the temporary nature of the suspension. See Eaves, 258 Ga. at 3(2)(a) n.1 (also incorrectly referring to subsection (i) as “OCGA § 45-5-6(d)(2), (i)”). That reference by the Court does not affect the plain language of subsection (c) establishing that the suspension is temporary, lasting only through final disposition of the criminal case or expiration of the term of office. Nor do we find that the content of subsection (i) was essential to the Court’s holding that OCGA § 45-5-6 does not deprive a public official under federal indictment of his or her right to procedural due process.
18 than a suspension with pay, so long as an indicted official is not convicted, he or she
will not suffer a loss of compensation following final disposition of the criminal case.
See OCGA § 45-5-6(c).9 Thus, OCGA § 45-5-6 “intrude[s] upon the constitutional
rights” of Banes and Lindsey “only so far as is minimally necessary to maintain the
public objective[,]” and thus comports with due process. Eaves, 258 Ga. at 3(2)(a).10
9 Specifically, the subsection provides: “If the public official is reinstated to office, he or she shall be entitled to receive any compensation withheld … . For the purpose of back compensation only, reinstatement may occur after the expiration of the … term of office.” We decline to interpret this subsection in a manner that limits the bases for “reinstatement” to the non-exhaustive and temporally-limited list of events set out in the preceding sentence (e.g., “if a nolle prosequi is entered, if the public official is acquitted”) and to subsection (i) (providing that if a state indictee “is not first tried at the next regular or special term following the indictment, the suspension shall be terminated and the public official shall be reinstated”). Indeed, there are other events that necessarily would result in termination of a suspension and a concomitant re-occupation of the office, such as an acquittal that occurred during a term of office that began after the indictment had been returned (that is, assuming no superseding indictment had been returned during the term of office). See Eaves, 258 Ga. at 3–4(2)(a) (“If the matter is resolved favorably to the official, he is fully restored to his former status.” (citing OCGA § 45-5-6 (c)). Moreover, we find that a suspension without pay and provisions for back compensation are rationally related to the State’s compelling interest in ensuring the public’s confidence in government.
10 To the extent the Court in Eaves also cited the utility of the indictment itself and, to a lesser degree, subsection (i)’s protection against “prosecutorial foot- dragging,” and the review commission’s required finding that the criminal charge “affect … job performance” in its procedural due process analysis, again, we do not find that the protection afforded by subsection (i) was essential to the Court’s holding on the issue and its inapplicability to federal indictees does not strip the statute of its rational basis. Moreover, as we discuss, infra, the Speedy Trial Act, 18 USC § 3161, provides the same or greater temporal protection to federal indictees. 19 ii. Equal Protection
Banes and Lindsey argue OCGA § 45-5-6 deprives them of equal protection
because reinstatement under OCGA § 45-5-6(i), which is applicable to officials under
state indictment, “denies [the] federally indicted official any statutory avenue to
reinstatement.” That is, they argue that because subsection (i) provides for
reinstatement if a suspended official, with certain exceptions, “is not first tried at the
next regular or special term” and federal courts do not have defined terms of court,
federal indictees have no path to reinstatement. We disagree that the presence of
subsection (i) without a corresponding subsection applicable to officials under
federal indictment violates equal protection because there are reasonably conceivable
facts providing a rational basis for the distinction.
Here, the facts providing that rational basis are found both in the plain
language of the statute itself and in the federal Speedy Trial Act, 18 USC § 3161 et
seq. First, as the trial court correctly noted, under subsection (c), any suspension —
whether based on a federal or state indictment — expires upon final disposition of
the criminal case and thus, the official is no longer suspended from his or her office.
Secondly, again as the trial court properly observed, federal criminal cases are
subject to the Speedy Trial Act, which requires that a charged individual’s trial
commence within 70 days of the date of the indictment, with certain periods being
20 excluded from the computation of those 70 days. See 18 USC § 3161(c)(1) and (h). If
the federal indictee is not brought to trial within the time prescribed, the indictment
“shall be dismissed on motion of the defendant[,]” and such dismissal may be with
prejudice (at which time an indicted official’s suspension from office would expire,
by operation of OCGA § 45-5-6(c)). See 18 USC § 3162(a)(2). State criminal cases,
on the other hand, are subject to “terms of court” of varying lengths, depending on
the judicial circuit and/or county in which the case is pending. See, e.g., OCGA § 15-
6-3(3) and (4)(a) (identifying terms of court of varying lengths of time, from
approximately two months to seven-and-one-half months). We thus conclude that
the copious variations in superior court terms of court, the more straightforward and
self-executing constraints of the Speedy Trial Act, and the similar policy-based
protection (against being slow-walked by the prosecution) that both the Speedy Trial
Act and subsection (i) provide, more than establish a rational basis for the statute’s
differentiation between officials indicted in state court and those indicted in federal
court. We therefore hold that the statute does not violate Banes’ or Lindsey’s equal
protection rights.11
11 We also agree with the trial court’s supplemental holding that because Banes and Lindsey requested and received extensions of time in their federal criminal cases that far exceeded both the 70-day limit within the Speedy Trial Act and what would have been an applicable or comparable term of court had they been indicted in state court, the facts of their case placed them beyond the potential reinstatement period 21 4. In light of our holdings above, we need not address Banes’ and Lindsey’s
contention that the trial court erred in concluding that the discretionary petition for
review permitted under OCGA § 45-5-6(f ) “cures constitutional defects.”
5. We note that in their reply brief, Banes and Lindsey make arguments neither
enumerated as error nor argued in their opening brief. As such, we do not consider
those arguments. See Perez v. Atlanta Check Cashers, 302 Ga. App. 864, 867 n.3 (692
SE2d 670) (2010) (explaining that party may not use reply brief to expand
enumerations of error).
In closing, based on the foregoing, we hold that OCGA § 45-5-6 authorized the
Governor to suspend Banes and Lindsey in March 2025 based upon their federal
indictment, and that those suspensions did not violate either individual’s due process
or equal protection rights under the federal or Georgia constitutions.
Judgment affirmed. McFadden, P. J., and Watkins, J., concur.
of subsection (i) and they thus lacked standing to assert an equal protection claim on the unavailability of subsection (i). 22