In a decision issued Tuesday morning, the Supreme Court of Georgia upheld the right of Gov. Nathan Deal to appoint three new judges - including two from North Georgia - to the Georgia Court of Appeals.
Five citizens, including the head of the Georgia NAACP, had appealed a ruling last December by a Fulton County judge who denied their petition to declare unconstitutional a 2015 statute that allowed the governor to appoint the three new judges. The citizens argued that under the state Constitution, the new judgeships should be filled by a statewide election.
In Tuesday's decision, the high court ruled the 2015 statute is constitutional. The 6-1 decision was written by Justice Harold Melton.
The main question, according to the majority, is whether a newly-created position on the Court of Appeals qualifies as a “vacancy” under the Constitution.
"Both the appropriate rules of construction and the historical record indicate that it does," the majority opinion read.
House Bill 279, enacted last year, increased the number of judges on the Court of Appeals from 12 to 15. A new subsection of Georgia Code section 15-3-4 states that the newly created judgeships “shall be appointed by the Governor for a term beginning January 1, 2016, and continuing through December 31, 2018, and until their successors are elected and qualified.”
On Oct. 29, 2015, the governor announced he was appointing Brian Rickman, a district attorney from Tiger, Nels Peterson, a vice chancellor from metro Atlanta, and Amanda Mercier, a superior court judge from Blue Ridge, to fill the three new judgeships.
On Nov. 16, 2015, five citizens – John Clark, Athens attorney Ivory Kenneth Dious, Georgia NAACP President Francys Johnson, Jr., Henry C. Ficklin and Darryl A. Momon – filed a petition in the Fulton County Superior Court seeking a “declaratory judgment” that declared the statute unconstitutional. They also sought an injunction to prevent the governor from appointing the three new judges. The five citizens’ main argument on appeal was that Court of Appeals judges who fill newly created seats must be selected by a general nonpartisan election.
Justice Robert Benham in his dissent wrote:
"I have not been able to bring my mind to concur with my associates in the judgment rendered in this cause. This is to me a source of sincere regret. I esteem it a personal misfortune. I have labored to see this question in the light in which they view it, but have been unable to attain to the same conviction. With profound respect for them, and sincere distrust of the justness of my own conclusions, I am constrained to dissent.” (This is a quote from an 1846 dissent by a Georgia Supreme Court Justice in the case of Tuttle v. Walton.)
Justice Benham wrote in his nine-page dissent that the Georgia Constitution of 1983 “unequivocally states that justices of the Georgia Supreme Court and judges of the Georgia Court of Appeals ‘shall be elected.’” While the Constitution also states that “vacancies” can be filled by the governor, “historically, in this state, a vacancy is an event ‘which causes an unexpired term.’
“I believe that the legislation allowing these gubernatorial appointments is unconstitutional and I believe the people of Georgia have been deprived of their constitutional right to elect the appellate judges who ultimately have the last say over their issues and disputes.”
