Kemp v. Gonzalez

310 Ga. 104
FINAL COPY


              S21Q0068. KEMP et al. v. GONZALEZ et al.

         MELTON, Chief Justice.

         This election case comes before us based on the following

certified question submitted to this Court by the United States

Court of Appeals for the Eleventh Circuit:

         Does OCGA § 45-5-3.2 conflict with Georgia Constitution
         Article VI, Section VIII, Paragraph I (a) (or any other
         provision) of the Georgia Constitution?

For the reasons that follow, we conclude that the answer to the

question is “yes” to the extent that OCGA § 45-5-3.2 authorizes a

district attorney appointed by the Governor to serve beyond the

remainder of the unexpired four-year term of the prior district

attorney without an election as required by Article VI, Section VIII,

Paragraph I (a) of the Georgia Constitution of 1983 (“Paragraph I

(a)”).

         1. The facts are not in dispute. On March 6, 2020, Deborah

Gonzalez attempted to qualify for the November 3, 2020 general
election for the office of district attorney for the Western Judicial

Circuit after Ken Mauldin resigned from the office effective

February 29. The Georgia Secretary of State determined that

Gonzalez could not qualify for the November 2020 election for

district attorney because, under OCGA § 45-5-3.2 (a), there would

not be an election for that position until November 2022 — the state-

wide general election immediately prior to the expiration of the

Governor’s future appointee’s term. See OCGA § 45-5-3.2 (a) (Where

the Governor fills a vacancy in the office of district attorney, the

appointee “shall serve until January 1 of the year following the next

state-wide general election which is more than six months after the

date of the appointment of such individual, even if such period of

time extends beyond the unexpired term of the prior district

attorney.”). Though the vacancy began more than six months before

the scheduled November 2020 election, the Governor did not make




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an appointment in time to maintain that scheduled election

pursuant to the provisions of the statute.1

     On May 18, 2020, Gonzalez and four other registered voters2

sued the Governor and the Secretary of State in the United States

District Court for the Northern District of Georgia. Gonzalez alleged

that OCGA § 45-5-3.2 (a) violates Paragraph I (a). A week later,

Gonzalez filed a motion for preliminary injunction, asking the

district court to require the Governor and the Secretary of State to

move forward with the November 2020 election for the Western

Judicial Circuit district attorney. The district court granted the

request, finding that Gonzalez likely would succeed on her federal

due process claim because OCGA § 45-5-3.2 (a) conflicts with

Paragraph I (a) and is therefore unconstitutional under Georgia law.

See Duncan v. Poythress, 657 F2d 691, 704 (5th Cir. 1981) (“It is




     1
       According to Gonzalez’s brief, the Governor still has not made an
appointment to fill the vacancy.

     2
       The other registered voters are April Boyer Brown, Adam Shirley,
Andrea Wellnitz, and Linda Lloyd. For ease of reference, Gonzalez and the
other registered voters will be referred to collectively as “Gonzalez.”
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fundamentally unfair and constitutionally impermissible for public

officials to disenfranchise voters in violation of state law so that they

may fill the seats of government through the power of appointment.

. . . [S]uch action violates the due process guarantees of the

fourteenth amendment [of the United States Constitution].”). In

July, the Governor and the Secretary of State appealed to the

Eleventh Circuit, which certified the above-referenced question to

this Court.

     2. In evaluating whether OCGA § 45-5-3.2 (a) violates the

Georgia Constitution,

     we recognize at the outset that all presumptions are in
     favor of the constitutionality of an Act of the legislature
     and that before an Act of the legislature can be declared
     unconstitutional, the conflict between it and the
     fundamental law must be clear and palpable and this
     Court must be clearly satisfied of its unconstitutionality.
     Moreover . . . statutes are presumed to be constitutional
     until the contrary appears.

(Citation and punctuation omitted.) JIG Real Estate v. Countrywide

Home Loans, 289 Ga. 488, 490 (2) (712 SE2d 820) (2011).




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     With these principles in mind, our analysis begins with the text

of Paragraph I (a), which states:

          There shall be a district attorney for each judicial
     circuit, who shall be elected circuit-wide for a term of four
     years. The successors of present and subsequent
     incumbents shall be elected by the electors of their
     respective circuits at the general election held
     immediately preceding the expiration of their respective
     terms. District attorneys shall serve until their successors
     are duly elected and qualified. Vacancies shall be filled by
     appointment of the Governor.

Notably, this text closely resembles constitutional language that set

the term of office for elected superior court judges under the 1877

Constitution (as amended in 1898), which this Court interpreted in

Hooper v. Almand, 196 Ga. 52, 57-58 (1) (25 SE2d 778) (1943). In

Hooper, an incumbent judge died shortly before the end of his four-

year term, and this Court determined that a judge appointed to fill

the vacancy could not serve for longer than the unexpired term of

the deceased judge without an election for a successor taking place.

See id. at 59-61 (1). At the time that Hooper was decided, Article VI,

Section III, Paragraph I of the 1877 Constitution provided for at

least one superior court judge in each circuit “whose term of office

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shall be four years, and until his successor is qualified.”

(Punctuation omitted; emphasis supplied.) Id. at 57 (1). Paragraph

II of Section III stated in pertinent part:

     The successors to the present and subsequent incumbents
     shall be elected by the electors entitled to vote for
     members of the General Assembly of the whole State, at
     the general election held for such members, next preceding
     the expiration of their respective terms. . . .

(Emphasis supplied.) Id.

     The same pertinent constitutional language also existed at

that time with respect to the selection of solicitors-general, whose

duties later became those of district attorneys. See Copland v.

Wohlwender, 197 Ga. 782, 784 (2) (30 SE2d 462) (1944) (interpreting

Article VI, Section XI, Paragraph I of the Georgia Constitution of

1877, which stated in relevant part, “There shall be a solicitor-

general for each judicial circuit, whose official term (except to fill a

vacancy) shall be four years. The successors of present and

subsequent incumbents shall be elected by the electors of the whole

State . . . at the general election held next preceding the expiration

of their respective terms.”).

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     This Court interpreted the constitutional text at issue in

Hooper as follows:

     The words “next preceding the expiration of their
     respective terms” are obliged to refer to the four years for
     which the judges are elected, and not to an election next
     preceding the expiration of the four years plus an
     indefinite period which would run until their successors
     were qualified. The terms referred to here mean the four-
     year terms. To give the phrase any other rendition would
     be to hold that the constitution has fixed no definite time
     for the election of judges for full terms.

Hooper, supra, 196 Ga. at 57-58 (1). We also held that “[t]he words

‘until his successor is qualified[ ]’ found in the constitution . . . mean

a successor elected by the people.” Id. at 59 (1).

     Similarly, this Court concluded in Copland that

     [t]he general policy of the law of this State is that the
     office of solicitor-general is an elective office; an
     appointment made by the executive shall be for such
     period of time only as is necessary to fill the office until
     the people can legally elect a solicitor-general. . . . We
     think that the language, “next preceding the expiration of
     their respective terms,” was intended to designate the
     election at which solicitors-general should be elected for
     the full term of four years, and was not intended to
     designate the general election at which a successor should
     be elected in case of a vacancy.

197 Ga. at 786 (2) and 789 (5).

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     Thus, both Hooper and Copland determined that when this

language is used in our Constitution, the timing of the election for a

successor to an office is tied to the specific term for the office as

measured by the Constitution. And, although the constitutional

language analyzed in Hooper setting the terms for judges appointed

to elective offices was materially changed in the 1983 Constitution,

see Barrow v. Raffensperger, 308 Ga. 660, 672-673 (3) (c) (842 SE2d

884) (2020) (discussing Ga. Const. of 1983, Art. VI, Sec. VII, Par. IV),

the constitutional language applicable to the terms of district

attorneys under the 1983 Constitution is consistent with the

language of prior versions of the Georgia Constitution that set fixed

terms of office for elected judges and solicitors-general. Thus, Hooper

and Copland are controlling in this case. See Elliott v. State, 305 Ga.

179, 184-187 (II) (B) (824 SE2d 265) (2019) (constitutional language

that has received consistent and definitive construction and is then

readopted into new Constitution is presumed to carry same meaning

as that prior construction).




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     As was the case for elected superior court judges and solicitors-

general under the materially same constitutional language at issue

in Hooper and Copland, Article VI, Section VIII, Paragraph I (a) of

our 1983 Constitution relating to district attorneys first fixes a four-

year term for the office of district attorney in each judicial circuit.

The second sentence of Paragraph I (a) then ensures that the

successors of any presently serving and subsequent incumbent

district attorneys (whether the incumbent was elected or appointed)

“shall be elected by the electors of their respective circuits at the

general election held immediately preceding the expiration of their

respective terms.” (Emphasis supplied.) Id. And the third sentence

confirms that all district attorneys (again, whether elected or

appointed) serve only “until their successors are duly elected and

qualified” in the election held pursuant to the second sentence.

(Emphasis supplied.) Id. A “successor” cannot be a district attorney

who was merely appointed. Thus, the first three sentences of

Paragraph I (a) create fixed four-year terms of office held by district

attorneys with a quadrennial election that is required to take place

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for the successors to those district attorneys at the end of each four-

year term. See Hooper, supra, 196 Ga. at 57-58 (1) (Where the

Georgia Constitution of 1877 established that successors to superior

court judges would be chosen at the election “next preceding the

expiration of their respective [four-year] terms,” the constitutional

language referred to “the four years for which the judges are

elected.”); Copland, supra, 197 Ga. at 789 (5). See also Mitchell v.

Pittman, 184 Ga. 877, 886 (194 SE 369) (1937) (Georgia Constitution

of 1877 fixed four-year terms for elected judges until a successor was

chosen according to “the regular method . . . [of] election by the

people” (citation and punctuation omitted)).

     The final sentence of Paragraph I (a) says simply, “Vacancies

shall be filled by appointment of the Governor.” It does not say that

appointments to fill vacancies do anything to change the existing,

fixed, four-year term of office held by the district attorney who

vacated the office before the end of that term. We therefore do not

construe this language to change the fixed four-year term for district

attorneys as established in the other three sentences of Paragraph I

                                  10
(a). See Hooper, supra, 196 Ga. at 63 (1) (“Since, under the plain and

unambiguous provision of paragraph 2 of section 3 of article 6 of the

[1877] constitution, the successors to the present incumbents

(referring to judges of the superior courts) shall be elected by the

people at the general election next preceding the expiration of their

terms, the immediately subsequent paragraph which deals with

filling vacancies should not be so construed as to nullify the

provision of paragraph 2, unless the entire language of the latter

paragraph, together with the context, so requires it.”). Indeed, under

Paragraph I (a), an appointee to a vacant district attorney office

becomes the present “incumbent” for that office who is then replaced

by a “successor” who is “duly elected.” See Hooper, supra, 196 Ga. at

63 (1). See also Lee v. Peach County Bd. of Commrs., 269 Ga. 380,

381 (497 SE2d 562) (1998) (As used in the Georgia Constitution of

1983, the term “incumbent is defined . . . as one ‘who is in present

possession of an office and it is not limited, qualified or restricted by

the method by which one attained office.’” (punctuation omitted)).




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     Accordingly, when the Governor’s appointee fills a vacancy in

an office of district attorney, he or she steps only into the remainder

of the unexpired fixed four-year term for the office. Because the four-

year term runs with the office, and not the individual in the office,

the appointee would not begin a new term by being appointed, but

would serve out the remainder of the existing term as the new

“incumbent” until his or her successor (who could be the incumbent)

is elected at the general election immediately preceding the

expiration of that existing term. See Shackelford v. West, 138 Ga.

159, 162 (74 SE 1079) (1912) (“There is a patent difference between

a vacancy in an office and the expiration of the term of the

incumbent, whose tenure is for a definite term and until his

successor shall qualify.”). See also Copland, supra, 197 Ga. at 789

(5) (With respect to four-year terms for elected solicitors-general

under the 1877 Constitution, the phrase “‘next preceding the

expiration of their respective terms[ ]’ was intended to designate the

election at which solicitors-general should be elected for the full




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term of four years” after a vacancy appointment during the existing

four-year term.).

     Although there is no provision in Paragraph I (a) that allows

for exceptions to the fixed four-year terms for district attorneys or

the requirement for successor elections to be held on a quadrennial

basis, OCGA § 45-5-3.2 (a) states:

     In those instances where the Governor fills a vacancy in
     the office of district attorney pursuant to Article VI,
     Section VIII, Paragraph I (a) of the Constitution, the
     vacancy shall be filled by the Governor appointing a
     qualified individual to the office of district attorney who
     shall serve until January 1 of the year following the next
     state-wide general election which is more than six months
     after the date of the appointment of such individual, even
     if such period of time extends beyond the unexpired term
     of the prior district attorney.

(Emphasis supplied.)3 By its plain terms, OCGA § 45-5-3.2 (a) allows

a district attorney who is appointed by the Governor within six


     3
      OCGA § 45-5-3.2 states in its remaining subsections:
           (b) A special election shall be held on the same date as the
     state-wide November general election which is first held following
     the date of the vacancy which is more than six months after the
     appointment of an individual to fill the vacancy and shall be held
     in conjunction with such general election.
           (c) It shall be the duty of the Secretary of State to call and
     conduct the special election required by subsection (b) of this Code
     section in accordance with the applicable provisions of Chapter 2
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months of a general election to remain in office “beyond the

unexpired term of the prior district attorney.” This conflicts directly

with the mandate of Paragraph I (a), because the appointee’s tenure

in office would circumvent the constitutional requirement that the

successor district attorney be chosen in the general election

preceding the expiration of the fixed four-year term that the

appointee incumbent fills. The General Assembly does not have the

authority to extend the terms of appointed district attorneys in this

way. See Morris v. Glover, 121 Ga. 751, 754 (49 SE 789) (1905)

(“[W]here an office is created or guarded by express constitutional

provision, its scope [cannot] be enlarged or lessened by statute, nor

can the office be filled in any manner other than that prescribed by

the constitution.”). OCGA § 45-5-3.2 (a) is therefore unconstitutional




     of Title 21, the “Georgia Election Code.” Any individual elected at
     such special election pursuant to subsection (b) of this Code section
     shall possess the qualifications to seek and hold such office as
     provided by law.
            (d) The individual elected in the special election conducted
     pursuant to subsection (b) of this Code section shall begin a new
     four-year term of office on January 1 immediately following such
     special election.
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to the extent that it allows appointed district attorneys to serve

“beyond the unexpired term of the prior district attorney.”4

      Our recent decision in Barrow, supra, does not require a

different result. The constitutional provision at issue there



      4
        We do not address today the General Assembly’s authority to regulate
the length of service of an appointed district attorney within the fixed four-
year term of his or her office. From 1984 until OCGA § 45-5-3.2 was enacted in
2018, former OCGA § 45-5-3 provided, in relevant part, that if a district
attorney vacancy occurred at any time during the final 27 months of a term of
office, “the Governor shall appoint a person to fill such vacancy for the
remainder of the unexpired term of office[,]” but if the vacancy occurred earlier
in the term, “the Governor shall appoint a person to fill such vacancy until such
vacancy is filled for the unexpired term of office at a special election . . . [that]
shall be held on the same date as the general election which is first held
following the date of the vacancy[.]” (Emphasis supplied.).
       Under OCGA § 45-5-3.2 (a) and (b), if a district attorney appointment is
made more than six months before the expiration of a predecessor’s term, a
special election is held in conjunction with the “November general election
which is first held following the date of the vacancy which is more than six
months after the appointment of [the] individual to fill the vacancy.”
Subsection (d) of OCGA § 45-5-3.2 goes on to state that “[t]he individual elected
in the special election . . . shall begin a new four-year term of office on January
1 immediately following such special election.” Thus, where an appointment
occurs more than six months before the expiration of the predecessor district
attorney’s four-year term, and where the special election for a successor would
coincide with the general election that is constitutionally required to take place
immediately preceding the expiration of that predecessor’s term, there would
appear to be no conflict with Paragraph I (a).
       But that is a different question than the General Assembly’s authority
to require, as former OCGA § 45-5-3 (a) (2) did, a special election to take place
before the general election immediately preceding the expiration of the four-
year term. We hold today only that, to the extent that OCGA § 45-5-3.2 allows
an appointed district attorney to serve for a term that extends beyond the fixed
four-year term of his or her predecessor, the statute is unconstitutional.
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specifically directs that judges who are appointed to elective office

“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.” (Emphasis

supplied.) Ga. Const. of 1983, Art. VI, Sec. VII, Par. IV. Based on

this specific constitutional language relating to the period of service

for appointed judges, which was different from that in prior

Constitutions (like the one Hooper had construed), we concluded

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 . . . is eliminated when the
       incumbent judge vacates the office. . . . Instead, an
       appointed judge has an entirely new and shortened initial
       term of office, . . . 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.

(Punctuation omitted; emphasis supplied.) Barrow, supra, 308 Ga.

at 671 (3) (b). We went on to emphasize that we could not

       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

                                    16
     simply served out all or part of the unexpired term of the
     prior incumbent. . . . When constitutional language is
     substantively changed, we must give that change effect. .
     . . 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.

(Emphasis in original.) Id. at 672-673 (3) (c).

     In this case, there is no language in the constitutional provision

relating to the terms for district attorneys that would allow for

appointed district attorneys to serve beyond the remainder of the

unexpired terms of their predecessors, and we cannot rewrite the

Constitution to insert such language. See Barrow, supra, 308 Ga. at

692 (Melton, C. J., concurring) (The people of Georgia “have the

power to seek amendment to [the Georgia Constitution]. 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.”). Thus, Barrow is

not controlling here.




                                  17
     Nor is the result in this case affected by the language of Article

V, Section II, Paragraph VIII of the 1983 Constitution relating to

the Governor’s general appointment power to fill vacancies in public

offices. That constitutional provision states:

    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.

(Emphasis supplied.) This Article V provision establishes a default

rule that the Governor’s appointees to vacant offices serve out the

remainder of the unexpired terms of their predecessors, but that

default rule can be changed by other provisions of the Constitution

or by the General Assembly. As explained above, the specific

constitutional provision relating to the appointment of district

attorneys to vacant offices does not allow for appointments that

extend beyond the remainder of the unexpired four-year term of the

appointed district attorney’s predecessor, and the constitutional

provision allowing for the appointment of judges for a time period


                                  18
that may extend beyond the remainder of the unexpired terms of

their predecessors does not apply to district attorneys. See Ga.

Const. of 1983, Art. VI, Sec. VII, Par. IV and Art. VI, Sec. VIII, Par.

I (a). The parties point to no other constitutional provision that

would allow the Governor to appoint district attorneys to serve

beyond the existing term of their predecessors without an election

for a successor taking place. Thus, the only question that remains is

whether appointees to district attorney’s offices may serve beyond

the unexpired terms of the prior district attorneys as “otherwise

provided by” the law of OCGA § 45-5-3.2 (a).

     The answer to that question is no, because the General

Assembly does not have the authority to “otherwise provide by law”

that which is prohibited by specific provisions of the Georgia

Constitution. See Morris, supra, 121 Ga. at 754. See also Pittman v.

Ingram, 184 Ga. 255, 256 (190 SE 794) (1937) (The “provisions of the

constitution . . . rank above all legislative or executive powers in

relation to the subject to which they refer.”). Indeed, as we explained

in Barrow, where specific provisions in the Constitution establish

                                  19
the parameters of service and succession for a government office, we

apply those specific provisions rather than rely on the provisions

relating to the Governor’s general appointment power. See 308 Ga.

at 673 (3) (c) (“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.”). And, in this instance, a

statute granting an appointed district attorney a term that would

exceed the fixed limit specifically set by Paragraph I (a) would

impermissibly enlarge by statute the scope of “an office [that] is

created or guarded by express constitutional provision.” Morris,

supra, 121 Ga. at 754. Because Paragraph I (a) fixes a four-year term

for district attorneys that a vacancy appointee simply steps into

until a successor can be duly elected in the general election before

that term expires, OCGA § 45-5-3.2 (a) cannot operate to change the

length of that fixed term. To the extent that OCGA § 45-5-3.2

provides otherwise, it is violative of the Georgia Constitution and

may not be enforced.

                                 20
    Certified question answered. All the Justices concur, except
Warren, J., not participating.



                    Decided October 8, 2020.

      Certified question from the United States Court of Appeals
for the Eleventh Circuit.
      Christopher M. Carr, Attorney General, Russell D. Willard,
Senior Assistant Attorney General, Elizabeth T. Young, Miles C.
Skedsvold, Bryan K. Webb, Assistant Attorneys General, Andrew A.
Pinson, Solicitor-General, for appellants.
      Bruce P. Brown, for appellees.




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