Floyd v. Stone ( 2021 )

In the Supreme Court of Georgia
Decided: December 14, 2021
S21A1123. FLOYD v. STONE.
BOGGS, Presiding Justice.
Appellant Maureen O. Floyd seeks permission to file an
information in the nature of quo warranto against appellee Superior
Court Judge Jesse C. Stone of the Augusta Judicial Circuit, with the
goal of having him removed from office. Relying on Paragraph
VIII (a) of Article V, Section II of the Georgia Constitution, Floyd
contends that Judge Stone’s appointment was illegal, because the
Governor did not “promptly” appoint him to fill the vacancy on the
superior court created by the accepted resignation of his
predecessor, Judge Michael N. Annis. 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 . . . .” (emphasis added)). The trial court granted Judge Stone’s
motion to dismiss for failure to state a claim in quo warranto and
denied Floyd leave to file an information against Judge Stone, in
part because Floyd failed to show that removal from office through
a proceeding in quo warranto is the proper remedy for an
appointment that is not made promptly. We affirm the trial court’s
judgment on that basis.
1. The facts are undisputed. At the May 2016 nonpartisan
general election, Judge Annis was re-elected to a standard four-year
term of office as a superior court judge beginning January 1, 2017.
On December 11, 2019, Judge Annis submitted a letter to Governor
Brian P. Kemp tendering his resignation, effective February 1, 2020.
On December 20, 2019, Governor Kemp sent Judge Annis a letter
accepting his resignation and noting the effective date. Soon after
Governor Kemp accepted Judge Annis’ resignation, the Judicial
Nominating Commission (“JNC”) began seeking candidates to fill
the seat. On February 1, 2020, the office formerly held by Judge
Annis became vacant. On February 17, 2020, the JNC sent Governor
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Kemp a list of four potential appointees, which included Judge
Stone. On February 22, 2021, more than a year after Judge Annis
left office, Governor Kemp appointed Judge Stone to the office for an
initial term ending December 31, 2022.1
On March 5, 2021, Floyd filed a petition for leave to file an
information in the nature of quo warranto, which alleged that it was
“filed within thirty (30) days after the swearing in” of Judge Stone.
See OCGA § 9-6-60 (“The writ of quo warranto may issue to inquire
into the right of any person to any public office the duties of which
he is in fact discharging. . . .”). On March 31, Judge Stone filed a
motion to dismiss the petition for failure to state a claim in quo
warranto or, in the alternative, to deny Floyd leave to file an
1 Because the vacancy arose less than six months before the May 2020
nonpartisan general election for judges (which was postponed until June due
to the COVID-19 pandemic), Judge Stone’s term will end, and he will face
election, at the same time as had the Governor appointed him earlier. See Ga.
Const. of 1983, Art. VI, Sec. VII, Par. IV (“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.”); Barrow v. Raffensperger, 308 Ga. 660, 660
n.1, 676 & n.15 (842 SE2d 884) (2020).
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information against him. Floyd amended her petition on April 15
and April 28, and on April 29, the trial court held a hearing.
On May 6, 2021, the trial court entered an order granting
Judge Stone’s motion to dismiss and denying Floyd permission to
file an information. The court explicitly rejected Floyd’s argument
that Judge Stone’s appointment was illegal because it was not made
“promptly” as required by the Georgia Constitution, noting that
Floyd cited no legal authority for her conclusion that the Governor’s
appointment was not prompt. The court also noted that Floyd failed
to cite any authority supporting her conclusion that removal from
office by way of a quo warranto proceeding is a proper remedy for an
unprompt appointment.
Floyd filed a timely notice of appeal, which was properly
directed to this Court based on our “exclusive appellate jurisdiction
in . . . [a]ll cases involving the construction . . . of the Constitution of
the State of Georgia.” Ga. Const. of 1983, Art. VI, Sec. VI, Par. II (1).
The case was orally argued on September 23, 2021.
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2. Floyd contends that the trial court erred in granting
Judge Stone’s motion to dismiss and in denying Floyd permission to
file an information in the nature of quo warranto. We disagree.
Floyd’s argument that Judge Stone should be removed from
office through a proceeding in quo warranto has three steps. First,
she contends that the promptness requirement, which appears in
the article of the Constitution that pertains to the executive branch,
see Ga. Const. of 1983, Art. V, Sec. II, Par. VIII (a), applies to judicial
vacancies, even though the judicial branch article has its own
provision addressing the filling of judicial vacancies that does not
include the same or even a similar promptness requirement. See
Perdue v. Palmour, 278 Ga. 217, 219 (600 SE2d 370) (2004) (noting
that Article V, Section II, Paragraph VIII (a) “is not a part of judicial
Article VI of the State Constitution, but rather is found in Article V,
which addresses the executive branch”). Cf. 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. . . .”). Second, Floyd contends that
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Governor Kemp did not act “promptly” in filling the office formerly
held by Judge Annis, because the Governor waited a little more than
a year to appoint Judge Stone. Third, Floyd contends that the proper
remedy for a lack of promptness in filling a judicial vacancy is to
remove from office the person who was appointed unpromptly. Our
analysis begins and ends with the third step of Floyd’s argument.
It is “‘the general rule that remedies should be tailored to the
injury suffered from the constitutional violation and should not
unnecessarily infringe on competing interests.’” Schoicket v. State,
___ Ga. ___ (___ SE2d ___) (Case No. S21A0840, decided Nov. 2,
2021, slip op. at 16-17) (citation omitted). The injury that flows from
the lack of a prompt appointment is prolongation of the period of
time during which there is a vacancy in the office. But as the trial
court observed at the hearing, removing Judge Stone – whom Floyd
does not contend is in any way personally ineligible to hold the office
– would simply create another vacancy in the office, which the
Governor would then be required to fill by appointment. See Ga.
Const. of 1983, Art. VI, Sec. VII, Par. III. See also Barrow v.
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Raffensperger, 308 Ga. 660, 669-670 (842 SE2d 884) (2020)
(construing this provision); Charles H. Wesley Educ. Foundation,
Inc. v. State Election Bd., 282 Ga. 707, 709 (654 SE2d 127) (2007)
(noting that requirement that public official perform particular act
within specific period of time, without more, does not divest official
of authority to perform act after time has run). The effect of imposing
such a remedy would be to further prolong the amount of time that
the office was vacant. A remedy that aggravates the injury flowing
from a constitutional violation is not a remedy that is tailored to the
injury. Indeed, Floyd cites no authority, from Georgia or elsewhere,
for the use of quo warranto to remove an officeholder under such
circumstances.
Thus, pretermitting whether Article V, Section II, Paragraph
VIII (a)’s requirement that the Governor promptly fill vacancies
extends to judicial vacancies, and pretermitting whether the delay
of a little more than a year in the appointment of Judge Stone
violated that requirement, the proper remedy for that constitutional
violation would not be to remove Judge Stone from office.
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Accordingly, we affirm the trial court’s judgment granting Judge
Stone’s motion to dismiss and denying Floyd permission to file an
information in the nature of quo warranto.
Judgment affirmed. All the Justices concur, except Bethel, J.,
not participating.
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