TERRINEE L. GUNDY v. JAMES BALLI ( 2022 )

FIRST DIVISION
BARNES, P. J.,
GOBEIL and MARKLE, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
January 19, 2022
In the Court of Appeals of Georgia
A21A1763. GUNDY v. BALLI et al.
MARKLE, Judge.
After the Judicial Qualifications Commission (JQC) filed ethics charges against
Judge Terrinee Gundy, she filed a petition for a writ of quo warranto against the JQC
and its individual members on the ground that the members had not been properly and
timely appointed.1 Following a hearing, the trial court denied the petition, finding that
the appointments were submitted to the Senate for confirmation, as required by
1
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.” As our Supreme Court has explained, “[q]uo warranto is an
extraordinary remedy which exists solely by virtue of statute.” (Citation and
punctuation omitted.) Richardson v. Phillips, 285 Ga. 385 (677 SE2d 117) (2009).
Prior to filing a petition for a writ of quo warranto, the petitioner must obtain leave
of court. Everetteze v. Clark, 286 Ga. 11, 12-13 (2) (685 SE2d 72) (2009); see also
OCGA § 9-6-60. Here, there is no dispute that Gundy has standing to bring the
petition, and that she requested and obtained leave of court to do so.
statute, when they were timely given to the secretary of the senate. Gundy now
appeals. For the reasons that follow, we affirm.
At issue is the process by which the senate confirms appointments to the JQC.
Under OCGA § 15-1-21 (g) (1),
[t]he names of the appointees required by this Code section shall be
submitted by the appointing authorities to the Senate no later than the
third Monday in January. Any member appointed to the commission
shall serve until the Senate confirms such appointee, and if an
individual’s name is not submitted by such deadline, he or she shall not
be eligible for confirmation.
(Emphasis supplied.). Because the issues raised on appeal involve the interpretation
of this statute, we apply a de novo review. Hill v. First Atlantic Bank, 323 Ga. App.
731, 732 (747 SE2d 892) (2013).
The facts are largely undisputed. In 2016, Georgia voters amended the state
constitution to alter the structure and power of the JQC after the General Assembly
expressed concern over the lack of oversight of the existing JQC while under the
auspices of the State Bar. Ga. Const. of 1983, Art. VI, Sec. VII, Par. VI (effective Jan.
1, 2017); OCGA § 15-1-21 (a) (2017); Gabriel L. Daniel, House Bill 808: Courts;
Judicial Qualifications Commission; Create, 10 J. Marshall L. J. 239, 244 (2017).
2
Under the new format, the JQC was divided into two panels: a seven-member
investigations panel, and a three-member hearing panel. OCGA § 15-1-21 (e) (1).
Unlike the previous composition of the JQC, members of these two panels would be
appointed by the governor, the president of the senate, the Supreme Court of Georgia,
and speaker of the house of representatives. OCGA § 15-1-21 (f) (3) (A), (4) (A). The
appointments were statutorily required to be confirmed by the Senate, and the
confirmation process mandated that the appointments be “submitted . . . to the
Senate” by the third Monday in January. OCGA § 15-1-21 (b), (g) (1). Failure to meet
this deadline made the appointee ineligible to serve on the JQC. OCGA § 15-1-21 (g)
(1).
The parties agree that this deadline in 2018 fell on January 15. That year, the
Senate was in session from January 8 through 11. On January 12, each of the
nominating entities notified the lieutenant governor, who also serves as the president
of the senate, of their appointments. Ga. Const. of 1983, Art. V, Sec. I, Par. III. That
same day, counsel to the lieutenant governor gave the secretary of the senate those
names, and the secretary of the senate time stamped each appointment when he
received it. On January 18, which was the next day the Senate was in session, the
3
secretary of the senate placed a memo with the names of the appointments on each
senator’s desk. In the memo, the secretary of the senate wrote:
Georgia law provides for Senate confirmation of appointments to the
Judicial Qualifications Commission. Pursuant to Senate Rule 3-3.1, I am
notifying the Senate that the Governor, Lt. Governor, Speaker of the
House of Representatives, and Supreme Court of Georgia have
submitted to the Senate the names of their appointments for
confirmation. The names of the appointees are attached for your review.
Pursuant to Senate rules, these appointments will be referred to the
Committee on Assignments. The Committee on Assignments will report
its recommendations on the appointments to the Senate after which the
Senate may proceed to consider confirmation.
The Senate Journal for January 18 contains a copy of the memo and the letters of
appointment from each of the nominating entities.2 Ga. Const. of 1983, Art. III, Sec.
V, Par. I. The president of the senate referred the appointments to the committee on
assignments, as set out in the Senate rules, and ultimately, each appointee was
confirmed.
2
Most of the appointees began serving their terms while the Senate was not in
session and therefore did not need to be confirmed until the next legislative session.
OCGA § 15-1-21 (g) (3).
4
In 2019, the JQC investigations panel brought formal charges against Judge
Gundy. Gundy then filed a petition for a writ of quo warranto, challenging these
appointments on the ground that delivering the names to the secretary of the senate
did not constitute “submitted . . . to the Senate” under the statute. See OCGA § 15-1-
21. She argued that this phrase referred to the time when the senators actually
received the names, and the sole evidence of when that occurred was found in the
Senate Journal.3 Gundy further argued that, because the Journal showed the names
were given to the senators on January 18, after the deadline of the third Monday in
January, the members were ineligible to serve on the JQC.
The trial court set the case for a bench trial. When Gundy appeared, she agreed
to proceed with a bench trial to the extent that the petition raised only questions of
law, but she also stated that she was not waiving her right to a jury trial on the factual
issues. Gundy then presented her only evidence, which consisted of the Senate
Journal entries from January 18, 2018. Counsel for the JQC and its members
3
Gundy initially sought injunctive relief and attorney fees, but withdrew those
counts. Additionally, she originally named all of the JQC members individually, then
later dismissed the individuals who were no longer members of either panel. She also
challenged the 2019 reappointment of two members. Because she makes the same
arguments regarding the timing of the 2019 appointments, we focus our discussion
on the 2018 process.
5
confirmed that they intended to call David Cook, the secretary of the senate, to testify.
At a subsequent hearing, Cook testified over Gundy’s objection, explaining the
procedure for how he received the names on January 12. Cook testified that it was
customary for the secretary of the senate to receive appointments on the Senate’s
behalf for distribution to the senators; he would time stamp the appointments when
he received them; and he would write a memo to the senators to maintain a paper
record and place the memo on the senators’ desks the next day the Senate was in
session.
The trial court denied the petition for a writ of quo warranto, finding that the
JQC members were properly appointed because the names were timely submitted to
the Senate when they were given to the secretary of the senate on January 12, and that
the phrase “submitted . . . to the Senate” in OCGA § 15-1-21 (g) (1) did not mean
delivered to the individual senators.
Gundy now appeals from the denial of her petition, arguing that the trial court
misinterpreted the statute when it found that delivering the names to the secretary of
the senate satisfied OCGA § 15-1-21 (g) (1), and erred by considering any evidence
other than the Senate Journal to determine when the names were submitted. She
6
further contends that the trial court erred by deciding disputed issues of fact without
a jury trial. We do not find these arguments persuasive.
The question before us involves one of statutory construction. When we are
tasked with determining the meaning of a statute,
[o]ur interpretation and application of statutory language is guided by
the following principles: A statute draws its meaning, of course, from its
text. Under our well-established rules of statutory construction, we
presume that the General Assembly meant what it said and said what it
meant. To that end, we must afford the statutory text its plain and
ordinary meaning, we must view the statutory text in the context in
which it appears, and we must read the statutory text in its most natural
and reasonable way, as an ordinary speaker of the English language
would. Though we may review the text of the provision in question and
its context within the larger legal framework to discern the intent of the
legislature in enacting it, where the statutory text is clear and
unambiguous, we attribute to the statute its plain meaning, and our
search for statutory meaning ends. But when the language of a statute or
regulation is not obvious on its face, we should employ other tools of
construction to interpret it and resolve its meaning. Those rules require
that we give due weight and meaning to all of the words of the statute,
and we are not authorized to disregard any of the words of the statute in
question unless the failure to do so would lead to an absurdity
manifestly not intended by the legislature.
7
(Citations and punctuation omitted.) PTI Royston v. Eubanks, 360 Ga. App. 263, 266-
267 (1) (861 SE2d 115) (2021); see also DeKalb County Bd. of Tax Assessors v. Astor
Atl, 349 Ga. App. 867, 869 (826 SE2d 685) (2019). Moreover, the “common and
customary usages of the words” are important and “include the usual and customary
meaning of terms as used in a legal context.” (Citations and punctuation omitted.)
Fed. Deposit Ins. Corp. v. Loudermilk, 305 Ga. 558, 562 (1) (826 SE2d 116) (2019);
see also OCGA § 1-3-1 (b) (words in statutes are given their ordinary significance);
Smith v. Northside Hosp., 302 Ga. 517, 521 (1) (807 SE2d 909) (2017); Institute for
Justice v. Reilly, 351 Ga. App. 317, 319 (1) (830 SE2d 793) (2019) (physical
precedent only). When we consider the meaning of the statutory text, “we may look
to other provisions of the same statute, the structure and history of the whole statute,
and the other law—constitutional, statutory, and common law alike—that forms the
legal background of the statutory provision in question.” (Citation and punctuation
omitted.) Loudermilk, 305 Ga. at 562 (1).
With these standards in mind, we turn to the questions before us: (a) what is
required to “submit” the appointees’ names to the Senate; (b) what evidence may the
court consider to determine if the submission was timely; and (c) was the trial court
required to provide a jury trial on these issues. We consider each in turn and note that,
8
as the party seeking a writ of quo warranto, Gundy bears the burden of showing that
she was entitled to relief. Anderson v. Poythress, 246 Ga. 435 (1) (271 SE2d 834)
(1980); Grimsley v. Morgan, 178 Ga. 40, 43 (172 SE 49) (1933).
a. Submission to the Senate.
The statute uses the words “submitted by the appointing authorities to the
Senate.” OCGA § 15-1-21 (g). Nothing in the statute, however, specifies what steps
are necessary to constitute submission or to whom the names must be given. Upon
review, we agree with the trial court that giving the names to the secretary of the
senate, as one of the Senate officers, amounted to submission to the Senate.
The “Senate,” as defined by our state Constitution, consists of the individual
senators who are members of the Senate. Ga. Const. of 1983, Art. III, Sec. I, Par. 1;
Art. III, Sec. II, Par. I (a). The Constitution also provides for two officers of the
Senate who are not members of that body: the president of the senate and the
secretary of the senate. Ga. Const. of 1983, Art III, Sec. III, Par. I (a); Art. III, Sec.
III, Par. III; see also Institute for Justice, 351 Ga. App. at 324 (McFadden, J.,
dissenting).
The term “submit” is commonly defined as “to deliver formally.” Merriam-
webster.com/dictionary/submit (last visited December 30, 2021). When we consider
9
this definition in the context of the statute before us, we presume that the legislature
“meant what it said and said what it meant.” DeKalb County Bd. of Tax Assessors,
349 Ga. App. at 869. If the legislature had intended the statute to require placing the
names before the individual members of the Senate to constitute submission, it could
have said so by using the language “senators” or “members.” See Truist Bank v.
Stark, 359 Ga. App. 116, 119 (1) (854 SE2d 784) (2021) (“If the General Assembly
desired to include [a specific reference to another statute], it would have done so.”)
(citation omitted). But it did not. By using the general term “Senate” instead of the
specific term “senators,” the legislature indicated that it did not require the individual
members of the Senate to receive the names in order to constitute “submission” to the
Senate.
This reading of the plain language is consistent with well-settled case law, as
well as the Senate’s own internal rules. See, e.g., Horrigan v. Rivers, 183 Ga. 141,
(187 SE 836, 839) (1936) (addressing term “General Assembly” as the whole body
and not its individual members); compare Cartledge v. City Council of Augusta, 189
Ga. 267, 269-270 (1) (5 SE2d 661) (1939) (the Constitution requires the General
Assembly to publish amendments in the paper, without specifying who is responsible
for ensuring that happens). Gundy’s interpretation of the relevant statute, under which
10
“submission” would require the delivery of a copy of the appointment to every
senator, is contrary to the very language of the statute.
Additionally, our state Constitution provides that the Senate shall determine
its own procedural rules. Ga. Const. of 1983, Art. III, Sec. IV, Par. IV. Here, the
Senate rules set forth the following process of confirming appointments:
Upon receiving the name of any person whose appointment to public
office requires Senate confirmation, the President of the Senate shall
refer such appointments to the Committee on Assignments. Such referral
shall be made no later than the legislative day after receipt. The
Committee on Assignments shall consider such appointments and may
refer such appointments to one or more standing committees and shall
instruct the Secretary of the Senate to notify the Senate that the names
of such appointees have been received. . . . The Secretary of the Senate
shall make the names of appointees submitted to the Senate for
confirmation available for review by any Senator. . . .
Senate Rules 3-3.1 (a). This is exactly what occurred here: The president of the senate
received the names; forwarded them to the secretary of the senate; and the secretary
of the senate notified the senators that the names had been received. The instruction
in Rule 3-3.31 that the secretary of the senate notify the senators that the
appointments had been received would be redundant and unnecessary if the names
could only be submitted by giving them to the individual senators.
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Moreover, the customary usage of the phrase “submitted . . . to the Senate” is
consistent with the acts taken here. The secretary of the senate is tasked with a variety
of acts on behalf of the Senate as an institution. For example, the secretary of the
senate is responsible for organizing the Senate under Rule 1-1.5 (c); receiving any
ethics complaints filed under Rule 1-4.11 (a) (2), (3); distributing rules and bills to
the senators, as set out in Rules 1-4.12, 4-2.10; receiving the filings of any bills to be
introduced, as provided in Rule 3-1.2 (f); and notifying the senators when a message
has been received, pursuant to Rule 4-2.2 (b). Moreover, in his testimony, the
secretary of the senate stated that it was customary for him to receive the
appointments on behalf of the Senate and then draft a memo to all the senators with
the information. Thus, in a number of contexts, the secretary of the senate is charged
with receiving information on behalf of the Senate as an institution and disseminating
it to the individual senators.
Indeed, even our Supreme Court has recognized the increased role an officer
can occupy and has held that the legislature may refer ministerial duties to certain
officers in order to perform its constitutionally mandated functions. See Pearle
Optical of Monroeville v. Ga. State Bd. of Examiners in Optometry, 219 Ga. 364, 375
(4) (133 SE2d 374) (1963) (“while it is necessary that a law, when it comes from the
12
lawmaking power, shall be complete, still there are many matters as to methods or
details which the Legislature may refer to some designated ministerial officer or
board. The Constitutional prohibition, therefore, does not deny to the lawmaking
body the necessary resources of flexibility and practicality, which will enable it to
perform its function[.]”) (citations and punctuation omitted).4
Finally, we adhere to the well-settled principle that courts should presume
public officials, such as senators, acted in accordance with their statutory duties and
read the statute in a manner that renders their conduct proper. See Wood v. Arnall,
189 Ga. 362, 370 (1) (6 SE2d 722) (1939) (consistent with presumption of validity,
construing statute in a way that rendered conduct constitutional); see also Selph v.
Williams, 284 Ga. 349, 352 (667 SE2d 40) (2008) (“there is a presumption of
4
The statutes providing for the clerk of the Supreme Court of Georgia also
support this interpretation: The clerk is a officer of the court, but not a member, and
is authorized to keep the minutes of the court and certify records on behalf of the
court. OCGA §§ 15-2-20; 15-2-43 (3), (4). Numerous other statutes provide that
materials be submitted to the specific government officer such as Secretary of State,
Commissioner of Agriculture, and Commissioner of Insurance, but there is no dispute
that the materials are properly submitted when delivered to staff members in those
offices. See, e.g., OCGA § 21-2-132 (c) (1) (candidates file a notice of candidacy “in
the office of the Secretary of State.”); Bell v. Raffensberger, 311 Ga. 616 (858 SE2d
48, 49) (2021); OCGA § 10-4-148 (submitting reports to the Commissioner of
Agriculture); OCGA § 33-40-4 (b), (c) (submissions to the Insurance Commissioner);
OCGA § 48-5-273 (submissions to the Tax Commissioner).
13
regularity that requires the courts to presume that public officers have properly
discharged their official duties.”). When we apply that presumption here, we note that
none of the senators expressed concern that the appointments were untimely, nor has
the Senate since amended its rules to address the manner in which appointments are
delivered. Doctors Hosp. of Augusta v. Dept. of Community Health, 356 Ga. App.
428, 432 (1) (a) (847 SE2d 614) (2020) (“The General Assembly’s acquiescence to
a rule is evidence that the rule came within its intent as expressed by the Code[.]”)
(citation and punctuation omitted); cf. Owens v. State, 353 Ga. App. 848, 851 (1) (840
SE2d 70) (2020) (General Assembly had not amended statute after recent court
decisions interpreting it, thus supporting court’s interpretation).
Essentially, Gundy asks us to invalidate the very actions of the Senate itself and
not the statute that the Senate passed. We are loath to do so.5 See Murphy v. ACLU
of Ga., 258 Ga. 637, 638 (5) (373 SE2d 364) (1988) (“In ordinary circumstances, the
internal operating procedures of the General Assembly will not be subjected to
5
Even if we agreed that submission to the secretary of the senate was not what
the statute intended, it is clearly what the senate rules contemplate, and the Senate
rules operate regardless of whether they are consistent with the statute. Coggin v.
Davey, 233 Ga. 407, 411 (II) (211 SE2d 708) (1975); see also Institute for Justice,
351 Ga. App. at 320 (1) (recognizing that the legislature, as a co-equal branch of
government, had the authority to pass its own rules).
14
judicial review.”); Stegall v. Southwest Ga. Regional Housing Auth., 197 Ga. 571,
582 (30 SE2d 196) (1944) (“It is a grave matter for this court to set aside an act of the
co-ordinate legislative department[.]”). Accordingly, we conclude that the trial court
properly found that delivering the names to the secretary of the senate satisfies the
“submitted . . . to the Senate” language in OCGA § 15-1-21 (g).
b. Evidence properly before the court.
We next turn to whether the trial court’s consideration was limited to the
information in the Senate Journal, or if it was authorized to consider the testimony
from the secretary of the senate to determine if the appointments were timely. We
conclude that the trial court was not limited to the evidence in the Senate Journal to
make this determination.
The Georgia Constitution provides that the Senate Journal is “the sole, official
record” of the proceedings before the Senate. Ga. Const. of 1983, Art. III, Sec. V, Par.
I. Nevertheless, our courts have never held that it is the sole evidence of the Senate’s
actions. Cf. Carswell v. Wright, 133 Ga. 714 (6) (66 SE 905) (1910) (“The
Constitution does not require that the title of the bill be entered on the House journal,
but only that the House shall keep a journal of its proceedings. . . . [I]t is only
necessary that the [J]ournal indicate by appropriate terms or description the general
15
nature of the measure, so as to identify it as having been proceeded with in
compliance with the Constitutional requirements.”). More importantly, a party cannot
use the Journal to invalidate a Senate action. See Williams v. MacFeeley, 186 Ga.
145, 149-152 (3) (197 SE 225) (1938); see also Capitol Distrib. Co. v. Redwine, 206
Ga. 477, 485-486 (1) (57 SE2d 578) (1950).
As our Supreme Court explained almost a century ago,
it is at best a matter of delicacy for the courts to go into the details of
legislative procedure, critically examining the methods of a co-ordinate
department of the government, and declaring that its members have
failed or refused to obey Constitutional directions or commands as to the
manner in which they should perform their duties, because of the entry,
or the absence of an entry, on the journal kept by some clerk or
subordinate employee.
Williams, 186 Ga. at 149-150 (3). Given this admonition, we are unwilling to limit
the evidence in this case to the Senate Journal entries, and thus conclude that the trial
court properly considered the secretary of the senate’s testimony. See also Murphy,
258 Ga. at 638 (5) (declining to consider whether there had been violations of the
legislature’s internal rules).
c. Right to a jury trial.
16
Finally, Gundy contends that the trial court erred by conducting a bench trial
on her petition when it considered factual issues surrounding her appointment. We
disagree.
Under OCGA § 9-6-65, a jury must decide factual disputes raised by a petition
for a writ of quo warranto. In contrast, purely legal questions can be decided by the
trial court. OCGA § 9-6-64 (a). Here, Gundy at first acquiesced to a bench trial, but
later clarified that, to the extent there were factual disputes, the trial court was not
authorized to decide those. Pretermitting whether she waived a jury trial, we conclude
that the facts were not in dispute; rather, the dispute centered on whether those facts
were consistent with the statutory requirements. As the construction of a statute is a
legal question, the trial court was authorized to decide the issues without a jury. See
Jones v. Boone, 297 Ga. 437, 441-442 (3) (774 SE2d 668) (2015); see also OCGA §
9-6-64 (a).
For the foregoing reasons, we conclude that Gundy has not met her burden to
show that the appointments to the JQC were not properly submitted to the Senate.6
The evidence showed that the president of the senate received the names and gave
6
For these same reasons, we conclude that the 2019 appointments were timely
submitted.
17
them to the secretary of the senate before the applicable deadline. Accordingly, we
affirm the trial court’s denial of the petition for a writ of quo warranto.
Judgment affirmed. Barnes, P. J., and Gobeil, J., concur.
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