Perdue v. Palmour

600 S.E.2d 370, 278 Ga. 217, 2004 Fulton County D. Rep. 2410, 2004 Ga. LEXIS 554
CourtSupreme Court of Georgia
DecidedJuly 13, 2004
DocketS04A1700
StatusPublished
Cited by8 cases

This text of 600 S.E.2d 370 (Perdue v. Palmour) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Perdue v. Palmour, 600 S.E.2d 370, 278 Ga. 217, 2004 Fulton County D. Rep. 2410, 2004 Ga. LEXIS 554 (Ga. 2004).

Opinions

Hines, Justice.

This is an election contest in which George E. “Sonny” Perdue III, in his official capacity as Governor of the State of Georgia, appeals from an order of the Superior Court of Chattooga County directing Jon Payne, Election Superintendent of Chattooga County, to proceed with the July 20, 2004 primary election and the November 2, 2004 general election for the offices of Judge of the State Court of Chattooga County and Solicitor-General of Chattooga County. Inasmuch as the primary was less than a month away, this Court agreed to give expedited review of the appeal.1 For the reasons which follow, we reverse.

The salient facts are undisputed.2 On April 23, 2004, Carlton Vines submitted his resignation as Judge of the State Court of Chattooga County, and on April 26, 2004, he qualified for the office of Solicitor-General of Chattooga County. He was unopposed. Albert C. Palmour, after “vacating” his position as the county’s solicitor-general on April 23,2004, qualified to run for the office of Judge of the State Court of Chattooga County.3 Eddie Hurley and Samuel Finster also qualified to run for the state court judgeship.

After the period for qualifying ended and the candidates had begun campaigning for the offices for which they had qualified, Superintendent Payne, through his attorney of record, received oral [218]*218notice from Governor Perdue’s executive counsel that the governor had received and accepted the resignations of Vines and Palmour, that the governor intended to fill by appointment the vacancies created by the resignations, and that the appointees would serve for the current unexpired terms and until January 1, 2007. Payne met with the candidates and informed them of the governor’s intention to fill the offices by appointment, and that in light of the governor’s decision, he was cancelling the elections for the offices of judge of the state court and solicitor-general and refunding the qualifying fees. Prior to formal cancellation of the election process and reimbursement of the fees, on May 12, Palmour filed a “Complaint for Inter-pleader and Declaratory Judgment”4 protesting Payne’s proposed cancellation of the upcoming primary and general elections for the offices at issue.5 On May 17, the Superior Court of Chattooga County issued an order temporarily enjoining and prohibiting any official from returning the qualifying fees to the four candidates for state court and solicitor-general and directing that the officials in charge of the July 20 primary election proceed with the printing of the ballots containing the names of such candidates. On June 10, the superior court entered an amended order requiring that the July 20 and November 2 elections proceed.

The superior court erred in its ruling. The matter is resolved by the clear and unambiguous provisions of state statutes and the 1983 Georgia Constitution. A state office is deemed vacated by resignation, when accepted. OCGA § 45-5-1 (a) (2). As to judicial vacancies in general, 1983 Ga. Const., Art. VI, Sec. VII, Par. Ill provides that such vacancies “shall be filled by appointment of the Governor except as otherwise provided by law in the magistrate, probate, and juvenile courts.” The governor’s authority to appoint in the specific situations of vacancies in the office of judge of the state court and the office of solicitor-general of the state court is also addressed by statute. See OCGA §§ 15-7-23; 15-18-60 (b). The parties agree that Governor Perdue has the right to appoint successors to the two vacant offices. The issue is the term of the appointments.

The superior court cites, inter alia, 1983 Ga. Const., Art. V, Sec. II, Par. VIII (a) which states:

When any public office shall become vacant by death, resignation, or otherwise, the Governor shall promptly fill such [219]*219vacancy 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.

This provision is not a part of judicial Article VI of the State Constitution, but rather is found in Article V, which addresses the executive branch. JudicialArticle VI of the 1983 Georgia Constitution expressly provides for the period of service of appointees to an elective office:

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.

1983 Ga. Const., Art. VI, Sec. VII, Par. IV. This “six month provision” mandates that if the appointment is made within six months of the next general election, the appointee will remain in office beyond the time of the unexpired term and until the first of the year following the next general election and until a successor is duly selected and qualified. The governor asserts that the appointments in this case will necessarily occur within six months of the upcoming general election.6 The next general election applicable to the present case will not occur until 2006.7 Therefore, assuming a successor is duly selected and qualified, the governor’s appointees would serve until January 1, 2007.

The superior court found that application of the six month provision would render null and void the language in 1983 Ga. Const., Art. V, Sec. II, Par. VIII (a) that the appointee “shall serve for the unexpired term” as well as the requirement under 1983 Ga. Const., Art. VI, Sec. VII, Par. I that “[a] 11 superior court and state court judges shall be elected on a nonpartisan basis for a term of four years.” But, even assuming arguendo, the applicability of 1983 Ga. Const., Art. V, Sec. II, Par. VIII (a), such analysis plainly overlooks the additional express language in that constitutional provision that the appointee is to serve for the unexpired term “unless otherwise provided by this Constitution or by law.” The 1983 Georgia Constitution clearly mandates “otherwise” by the inclusion of the six month provision.

Citing Hooper v. Almand, 196 Ga. 52 (25 SE2d 778) (1943), the superior court concluded that “appointments should be utilized to fill vacancies only until a general election can be held” and that the [220]*220“Governor’s power of appointment should not override the people’s right to vote.” However, the superior court’s reliance on Hooper v. Almand to find that the extent of the appointments can be only for the remainder of the unexpired term is misplaced. The decision in Hooper v. Almand was premised upon a very different constitutional requirement, Ga. Const, of 1877, as amended, Art. VI, Sec. Ill, Par. Ill, and predated by 40 years the six month provision in the 1983 Georgia Constitution.8 The obsolescence of Hooper v. Almand in light of the six month provision has been recognized in recent decisions by the United States District Court.9

The six month provision was made a part of the State Constitution to address precisely the situation in this case.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Floyd v. Stone
867 S.E.2d 92 (Supreme Court of Georgia, 2021)
BARROW v. RAFFENSPERGER (Two Cases)
308 Ga. 660 (Supreme Court of Georgia, 2020)
Clark v. Deal (And Vice Versa)
785 S.E.2d 524 (Supreme Court of Georgia, 2016)
HEISKELL Et Al. v. ROBERTS
764 S.E.2d 368 (Supreme Court of Georgia, 2014)
Perdue v. Palmour
600 S.E.2d 370 (Supreme Court of Georgia, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
600 S.E.2d 370, 278 Ga. 217, 2004 Fulton County D. Rep. 2410, 2004 Ga. LEXIS 554, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perdue-v-palmour-ga-2004.