Robert M. Mack Crawford v. James Balli ( 2020 )

FIFTH DIVISION
BARNES, P. J.,
REESE, P. J. and MARKLE, J.
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.
Please refer to the Supreme Court of Georgia Judicial
Emergency Order of March 14, 2020 for further
information at (https://www.gaappeals.us/rules).
June 3, 2020
In the Court of Appeals of Georgia
A20A0124. CRAWFORD v. BALLI et al.
MARKLE, Judge.
After the Judicial Qualifications Commission (JQC) filed ethics charges against
superior court Judge Robert M. “Mack” Crawford, he filed a petition for a writ of quo
warranto and for temporary and permanent injunctions against the JQC and its
individual members, contending that the members of the JQC had not been properly
appointed under OCGA § 15-1-21 (g) (1) because their names were not submitted to
the Senate by the statutory deadline.1 The trial court denied the petition, finding that
1
Judge Crawford resigned his position effective March 2020 as part of a plea
deal in which he agreed not to run for re-election or apply for or serve as a judge
while on probation. This Court ordered the parties to submit supplemental briefing
on whether his resignation and plea deal rendered his quo warranto case moot or
otherwise affected his standing to bring his claim. In his supplemental brief, Crawford
concedes that his claims are moot if the JQC lacks jurisdiction to investigate or
discipline him. However, in its response brief, the JQC explains that it retains
(1) Crawford failed to obtain leave of court to file the petition for quo warranto and
therefore it was procedurally deficient; (2) the petition failed on the merits because
the record showed that the JQC members had been appointed properly; and (3) the
request for injunctive relief was moot. Crawford now appeals, arguing that the trial
court erred by (1) finding the petition procedurally deficient because he had obtained
a rule nisi hearing, which was sufficient to obtain leave of court; and (2) denying the
petition on the merits because the only evidence it could consider was the Senate
Journal and no presumption of regularity applied to the confirmation process.
Because we conclude that Crawford’s quo warranto petition could not be considered
on its merits due to his failure to obtain leave of court prior to filing it, we vacate the
trial court’s order and remand the case with instructions to dismiss it on this basis.
We review questions of statutory interpretation de novo. Hill v. First Atlantic
Bank, 323 Ga. App. 731, 732 (747 SE2d 892) (2013).
The underlying facts of this case are largely undisputed. In 2016, Georgia
voters amended the state constitution to alter the structure and power of the JQC. Ga.
jurisdiction to investigate and discipline Crawford even after his resignation. See
Application D of the Code of Judicial Conduct; see also Rule 2 (B) & Rule 2
Comment. (2) of the Final Rules of the JQC (2018). As such, we agree that this
appeal is not moot, and Crawford retains standing to challenge the JQC members’
appointments.
2
Const., Art. VI, Sec. VII, Par. VI; OCGA § 15-1-21 (a) (2017). As is relevant to this
appeal, under the new format, the JQC was divided into two panels: an investigations
panel and a hearing panel. OCGA § 15-1-21 (e) (1). The governor, president of the
senate, Supreme Court, and speaker of the house each appointed members to one of
these two panels, OCGA § 15-1-21 (f) (3) (A), (4) (A), and these appointments
required senate confirmation, OCGA § 15-1-21 (b).
The statute further mandates that the appointments be submitted to the senate
before the third Monday in January,2 which the parties agree was January 15. OCGA
§ 15-1-21 (g) (1). Failure to meet this deadline results in the appointee being
ineligible. Id.
2
Under OCGA § 15-1-21 (g) (1):
The 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.).
3
The senate was not in session on January 15, and when it returned to session
on January 18, the secretary of the senate delivered a memo to all senators to notify
them that the names for the JQC appointees had been submitted and would be referred
to the Committee on Assignments consistent with Senate Rule 3-3.1. The Senate
Journal for January 18, which is the official record of senate proceedings, contains
the secretary’s memo and the letters of appointment.3 Ga. Const. Art. III, Sec. V, Par.
1. Ultimately, each appointee was confirmed by the senate.
After Crawford was investigated and charged with ethics violations, he filed
the instant petition for quo warranto challenging the appointment of the JQC
members. Specifically, he alleged that the appointments were not submitted to the
senate for confirmation before the January 15 deadline, as required by OCGA § 15-1-
21 (g) (1), and therefore the appointments were void.
The trial court issued a rule nisi, setting the hearing date the following month,
and granting a temporary restraining order. That order, however, was rescinded prior
to the hearing date because it granted a restraining order without a hearing. Nothing
in the initial rule nisi gave Crawford leave to file the quo warranto.
3
The date on each of those letters precedes the deadline.
4
Following a hearing, the trial court denied the petition both for the failure to
obtain leave of court prior to filing the petition and on the merits. This appeal
followed.
1. Leave of Court
Crawford argues that he obtained a rule nisi, which was sufficient to meet the
procedural requirement that the petitioner obtain leave of court prior to filing a
petition for quo warranto. Alternatively, he contends that we should remand for the
trial court to dismiss the petition without prejudice if we were to conclude that the
failure to obtain leave is dispositive. We conclude that obtaining leave of court is a
threshold requirement, and, accordingly, we vacate the trial court’s order and remand
the case.
“Quo warranto is an extraordinary remedy which exists solely by virtue of
statute.” (Citation and punctuation omitted.) Richardson v. Phillips, 285 Ga. 385, 385
(677 SE2d 117) (2009). OCGA § 9-6-60 provides, “[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.” As our Supreme Court has noted, the
statute explicitly requires that “[a] petition for quo warranto may be filed only by
5
leave of court.” (Citations omitted; emphasis supplied.) Everetteze v. Clark, 286 Ga.
11, 12-13 (2) (685 SE2d 72) (2009); see also OCGA § 9-6-60.4
“When we consider the meaning of a statute, we must presume that the General
Assembly meant what it said and said what it meant.” (Citation and punctuation
omitted.) Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013). We are
not permitted to disregard statutory language.5 Georgia-Pacific Consumer Products,
LP v. Ratner, 345 Ga. App. 434, 440 (1) (a) (812 SE2d 120) (2018). Indeed, “[w]here
the language of a statute is plain and unambiguous, judicial construction is not only
unnecessary but forbidden.” Six Flags Over Georgia v. Kull, 276 Ga. 210, 211 (576
SE2d 880) (2003).
Therefore, under the plain language of the statute, seeking leave of court is a
threshold statutory requirement in an action for quo warranto. Everetteze, 286 Ga. at
4
The parties do not dispute that a quo warranto was the appropriate action by
which to challenge the appointment of the JQC members.
5
As a result, we cannot accept the appellees’ concession at oral argument that
they are no longer arguing about the failure to obtain leave to file the petition. To do
so would effectively have this Court disregard the unambiguous statutory language.
Instead, the proper place to address the necessity of this threshold requirement is in
the General Assembly.
6
12-13 (2). Indeed, our Supreme Court has recognized this requirement for decades.6
Jones v. Boone, 297 Ga. 437, 439 (1) (774 SE2d 668) (2015) (party filed an
application for leave to file a quo warranto, after which the trial court issued a rule
nisi granting leave to file a petition for quo warranto); Richardson, 285 Ga. at 386
(noting that there was no evidence in the record that the petitioner obtained leave of
court to file the petition for quo warranto). Where a plaintiff fails to seek leave to file
prior to filing a petition for quo warranto, our Supreme Court has directed that the
petition must be dismissed. Everetteze, 286 Ga. at 13 (2).
Crawford relies on Walker v. Hamilton, 209 Ga. 735, 738 (76 SE2d 12) (1953),
to support his argument that the trial court effectively granted leave when it issued
6
See, e.g., Anderson v. Flake, 267 Ga. 498, 499 n. 1 (480 SE2d 10) (1997)
(petitioner complied with the requirement to obtain leave to file a petition); Gary v.
Ogletree, 219 Ga. 791, 791-792 (136 SE2d 373) (1964) (plaintiff filed application for
leave to file, which was granted, and a rule nisi was issued); Hicks v. Liner, 205 Ga.
232 (52 SE2d 846) (1949) (petitioner filed for leave to file a quo warranto and trial
court issued an order setting a hearing); Shaw v. De Vane, 169 Ga. 702 (151 S.E. 347)
(1930) (petitioner filed application for leave to file quo warranto and trial court
granted leave and required respondents to show cause); McWilliams v. Jacobs, 128
Ga. 375 (57 S.E. 509) (1907) (“the relators have no authority of law to file any petition
connected with the matter in the superior court without first getting leave of the
judge.”) (citations omitted); Harris v. Pounds, 66 Ga. 123, 125-126 (1-3) (1880) (“the
usual practice in quo warranto cases is to present to the court a petition, verified by
affidavit, for leave to file the information; whereupon a rule nisi to show cause to the
contrary is issued.”).
7
the rule nisi. But Walker does not support his argument because, in that case, the
petitioner did seek leave of the court to file the quo warranto petition.7 Moreover, the
holding in Walker expressly contemplated that the rule nisi would issue after the
application for leave to file the petition, unlike the procedural posture here.8
We therefore conclude that Crawford’s petition failed, not on the merits, but
because he did not seek leave to file the petition, as required by the plain language of
the quo warranto statute. OCGA § 9-6-60. Accordingly, as our Supreme Court
precedent dictates, we must vacate the trial court’s order, and remand the case with
instructions to dismiss the petition without prejudice for failure to obtain leave.
7
Crawford’s citation to Rogers v. Medical Association of Georgia, 244 Ga.
151, 152-153 (1) (259 SE2d 85) (1979), is likewise unpersuasive. In that case, the
court construed the complaint as a petition for quo warranto and found the plaintiffs
had standing, but the Court did not reach the requirement of seeking leave of court.
8
In his reply brief, Crawford cites to a another quote from Walker: “Superior
courts of this State, on an application for leave to file an information in the nature of
a quo warranto may, where the facts set forth in the accompanying information are
positively verified, grant the leave to file ex parte or issue a rule nisi calling upon the
respondent to show cause why the information should not be filed against him.”
(Emphasis supplied.) 209 Ga. at 735-736. But this reliance is unfounded. First, the
quote appears in the syllabus and not the body of the opinion. Second, the quote
actually says upon application, the court can grant it or issue rule nisi - it does not say
that rule nisi is a substitute for application for leave.
8
2. In light of our conclusion in Division 1, we need not address Crawford’s
remaining arguments on appeal regarding the merits of his petition.
Judgment vacated and case remanded with direction. Barnes, P. J., and Reese,
P. J., concur.
9