Jones v. Boone , 297 Ga. 437 ( 2015 )

In the Supreme Court of Georgia
Decided: June 29, 2015
S15A0521. JONES v. BOONE.
HUNSTEIN, Justice.
This is an appeal from a trial court’s order granting a writ of quo warranto
based on that court’s conclusion that appellant Ronny Jones was not appointed
as attorney for the City of Gordon, Georgia (the “City”), in accordance with the
City’s charter. The quo warranto action was initiated by appellee Joseph Boone,
who prior to May 21, 2014, had held the position of city attorney in Gordon for
35 years. For the reasons that follow, we affirm the order granting the writ of
quo warranto.
The relevant facts in this case are undisputed. Under the City’s charter,
legislative authority is vested in a city council, which is comprised of a mayor
and six council members. Charter of City of Gordon, § 2.10 (a). Except as
otherwise provided in the charter, the affirmative vote of at least four council
members is required for the adoption of any motion or resolution. Id. at § 3.15
(a). The mayor, who as a general rule presides over city council meetings, is
authorized to vote on matters brought before the city council only in those cases
where there is a tie vote, “except that [she] may vote in all elections for officers
who are elected by the city council and impeachment or removal proceedings
whether there is a tie or not.” Id. at § 3.22 (8). With regard to the appointment
of a city attorney, the charter expressly provides that the “city council shall
appoint a city attorney” who “shall serve at the pleasure of the city council.” Id.
at § 4.12.
At a May 21, 2014 Gordon City Council meeting presided over by Mayor
Mary Ann Whipple Lue, a motion was made to terminate Boone’s services for
the City as city attorney. The vote on the motion by the council members in
attendance was three to two in favor, with one abstention. In the absence of the
requisite four votes by council members, the mayor voted in favor of the motion,
resulting in a vote of four to two. After some discussion about the immediacy
of pending legal matters, Boone’s continuing legal and ethical obligations to the
City, and the necessity of transferring Boone’s files, a motion was made to
authorize Mayor Lue to appoint an interim city attorney. The vote on this
motion was again three to two in favor, with one abstention; the mayor again
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concluded that she was authorized to vote and cast her vote in favor of the
motion. The following day, Mayor Lue announced that she had appointed Jones
as the new city attorney.1
Boone subsequently sought leave to file a petition for writ of quo warranto
challenging the validity of Jones’ appointment. Boone specifically contended
Jones’ appointment by Mayor Lue was an ultra vires act because the mayor was
not authorized to vote on the May 21, 2014 motions pertaining to the office of
city attorney in the absence of a tie vote by city council members. See Charter
of the City of Gordon, § 3.22 (8). The trial court agreed, concluding that (1) the
“city attorney serves at the pleasure of the council pursuant to section 4.12 of the
City Charter;” (2) “the power exercised by the mayor to appoint [Jones] as city
attorney was not within the mayor’s powers;” and (3) Jones “is not the duly
1
The minutes of the Gordon City Council’s May 21, 2014 meeting reflect that
an initial motion was made “to terminate any and all contracts with the city attorney,
Joseph Boone,” and like the votes on the other related motions, the city council voted
three to two to terminate Boone’s contracts, causing Mayor Lue to cast her
affirmative vote. Boone then pointed out that he had no contract with the City, that
he served at the pleasure of the city council, and that a vote of at least four council
members would be required for his removal. Later in the meeting, an additional
motion was made “repeating” the council’s earlier motion to “terminate Attorney
Boone’s services with the city.” The vote on this motion by council members was
three to two in the affirmative with the mayor ultimately providing a fourth
affirmative vote.
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appointed attorney for the City of Gordon, Georgia.” Because it determined
Mayor Lue did not possess the power to appoint Jones as city attorney, the trial
court granted Boone’s petition for quo warranto.
1. Jones challenges the procedural posture of Boone’s petition for writ of
quo warranto, arguing both that Boone did not have standing to seek the writ
and that the trial court did not grant Boone the necessary leave to file his
petition. We find no merit in these contentions.
Under OCGA § 9-6-60,
[t]he 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. It may be granted only after the application by some
person either claiming the office or interested therein.
See Milton v. Mitchell, 139 Ga. 614, 617 (77 SE 821) (1913). See also White
v. Miller, 235 Ga. 192, 192-193 (219 SE2d 123) (1975) (interested citizen and
taxpayer may institute quo warranto proceedings to inquire into right of person
to hold public office the duties of which he is discharging); Walker v. Hamilton,
209 Ga. 735, 736-737 (76 SE2d 12) (1953) (“[T]o maintain such proceedings
to test the title to public office, one must have some interest in the office. While
a claimant to the office has such an interest, it is not essential that one be a
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claimant, but is sufficient if he be a resident or a taxpayer of the municipality
where the office in question is that of mayor of such municipality.”). Boone had
standing to seek the writ because he claimed the office of city attorney based on
the absence of an affirmative vote by four council members to terminate his
services as city attorney.2 See Milton, supra, 139 Ga. at 617.
Not only did Boone have standing to seek a writ of quo warranto, but in
filing his petition he followed a procedure specifically approved by this Court.
Both parties concede that a petition for quo warranto may be filed only by leave
of court. See OCGA § 9-6-60; Richardson v. Phillips, 285 Ga. 385, 385 (677
SE2d 117) (2009). The record demonstrates that Boone filed an “Application
for Leave of Court to File an Information in the Nature of a Quo Warranto” in
the trial court, which, in turn, issued a rule nisi signed by its clerk of superior
court granting Boone leave to file a petition for quo warranto and ordering a
show cause hearing for a date certain. Compare Milton, 139 Ga. at 618-619(“when the proceedings are instituted for the usurpation of an office claimed by
the relator as a matter of right, it has been held to be immaterial whether he
2
The propriety of the vote on the motion to terminate Boone’s services is not
an issue in this quo warranto action, see OCGA § 9-6-60, and therefore, we do not
address that issue in this opinion.
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proceeds in the first instance by the rule nisi or asks leave to file the
information”); Walker, 209 Ga. at 738 (“[I]n all cases of applications to file an
information in the nature of a quo warranto the judge to whom it is presented is
authorized to issue a rule to show cause why it should not be granted, and upon
a return of the rule to hear and consider evidence relevant to the matter
involved.”). The order granting leave was not improper because it was signed
by the clerk of court, see OCGA § 15-6-61 (a) (3) (authorizing clerk of superior
court to sign orders at the direction of a superior court judge), and Jones’
contrary arguments aside, we find no authority mandating that the same judge
who grants leave to file a petition for quo warranto must preside over the
hearing to determine whether the petition should be granted.
2. Jones contends the trial court erred by holding that the mayor was
without authority to appoint Jones as city attorney. His argument, made in
multiple parts, is that although the City’s charter specifically provides that the
city council shall appoint a city attorney, the council voted at its May 21, 2014
meeting to delegate this power of appointment to the mayor. The vote on the
motion to delegate was three to two in the affirmative, just short of the four
votes required for adoption. One council member abstained from voting,
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however, leaving it, Jones argues, within the discretion of the mayor to count the
abstention vote as a negative vote, thereby creating a tie and authorizing the
mayor to cast her vote to give herself the power to appoint a city attorney. See
Charter of the City of Gordon § 3.22 (8). This argument raises several concerns,
including whether under the City’s charter the council could delegate to the
mayor a power specifically conferred upon it by the charter, and whether in
doing so, the mayor was authorized to cast the deciding vote to transfer such
power to herself. We need not consider these issues, however, because we find
no authority permitting the mayor to count the council member’s abstention
from voting as a negative vote, thereby creating a tie.
As stated, the City’s charter provides that “[e]xcept as otherwise provided
in this charter, the affirmative vote of four (4) council members shall be required
for the adoption of any ordinance, resolution, or motion.” Charter of the City
of Gordon, § 3.15 (a). We previously have considered, in a case involving very
similar language, the issue of how a commission or council, whose charter
unambiguously requires an affirmative vote of a specified majority of its
members, can treat an abstention from voting. See Merry v. Williams, 281 Ga.
571 (4) (642 SE2d 46) (2007). We recognized in Merry that the requirement of
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a specific number of affirmative votes exhibits a legislative intent that
abstentions not be counted with the majority of votes cast and concluded that the
inclusion of such a requirement within the act consolidating the governments of
the City of Augusta and Richmond County prohibited the commission from
counting an abstention as an affirmative vote. See id. at 576-577. We further
determined, under the rules of procedure applicable to the commission in that
case, that abstentions could not be counted as negative votes. Id. at 576.
Here, Jones argues that Mayor Lue had the authority to treat an abstention
as a negative vote. He, however, cites no act, law, charter provision, or rule of
procedure granting either the mayor or the city council such authority. A mayor,
like the municipality which he or she serves, has no inherent power but can only
exercise that power delegated by the legislature. See generally H.G. Brown
Family, L.P. v. City of Villa Rica, 278 Ga. 819 (1) (607 SE2d 883) (2005) (“A
municipality has no inherent power; it may only exercise power to the extent it
has been delegated authority by the state.”); see also OCGA § 36-35-3 (a)
(delegation of legislative power is to the municipality’s governing authority, that
is, the mayor and council). Moreover, the City’s charter, which sets forth the
sole power conferred by the City upon the mayor with regard to her right to vote
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on council matters, is silent as to how to treat an abstention, and unlike in
Merry, there has been no evidence presented or suggestion made that the
council has adopted any rules of procedure which might govern the handling of
an abstention in this circumstance. To the extent that Robert’s Rules of Order
may do so, we acknowledged in Merry that according to Robert’s Rules,
“‘[a]lthough it is the duty of every member who has an opinion on a question to
express it by his vote, he can abstain, since he cannot be compelled to vote.’
Robert’s Rules of Order Newly Revised (10th Ed.), p. 394, 1. 6-9. The clear
implication from that provision is that an abstention is not to be counted as a
vote. [Cit.]” Merry, 281 Ga. at 576. See also Roberts Rules, Ch. III, § 44 (“to
‘abstain’ means not to vote at all”).
Accordingly, in the absence of any clear statutory, charter provision, or
rule of procedure authorizing the mayor to treat an abstention as an actual vote
by a council member, either in the affirmative or negative, we hold that the
council member’s abstention from voting on the May 21, 2014 motion to
delegate to the mayor the power to appoint a city attorney was, in fact, no vote
at all. Therefore, there was no tie vote on the motion and Mayor Lue was not
authorized to cast a vote in its favor. The sole authority to appoint a city
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attorney thus remained in the city council, see Charter of the City of Gordon, §
4.12,3 and Jones’ appointment as city attorney by the mayor was invalid.4
3. Finally, we find no error in the trial court’s failure to hold a jury trial.
Although a jury trial is required in a quo warranto proceeding where there are
factual questions at issue, see OCGA § 9-6-65, a jury trial is not required where
the only issues concern questions of law. See City of College Park v. Wyatt,
282 Ga. 479 (2) (651 SE2d 686) (2007); Hornsby v. Campbell, 267 Ga. 511 (4)
(480 SE2d 189) (1997); see also OCGA § 9-6-64 (a) (where application for writ
of quo warranto involves only questions of law, case may be determined by
judge of the superior court). In this case, Boone’s application alleged that
Mayor Lue was without authority under the City’s charter to appoint Jones as
city attorney and, as evidenced by the hearing transcript, the facts related to
Jones’ appointment were not in dispute. Accordingly, the only issues before the
trial court involved the interpretation of the charter’s voting requirements and
procedures which were questions of law. See Merry, 281 Ga. at 573.
Judgment affirmed. All the Justices concur.
3
Lue v. Eady, S15A0117, slip. op. at 14 (decided June 15, 2015).
No evidence has been presented suggesting that the council at any time has
4
moved or voted on a motion to appoint Jones as city attorney.
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