304 Ga. 338
FINAL COPY
S18A0765. DELAY et al. v. SUTTON.
MELTON, Presiding Justice.
This case concerns the constitutionality of the appointment process created
by House Bill 597 (HB 597), a DeKalb County local law that delegates to
private entities the power to appoint certain members of the DeKalb County
Board of Ethics.1 Prior to the approval of HB 597 by DeKalb
1
HB 597 § 22A (h) (2) states:
(A) The members of the Board of Ethics in office on the
effective date of this section shall serve until December 31, 2015,
and then their terms shall terminate. A new board shall be appointed
as provided in this paragraph to take office on January 1, 2016, and
to serve for the terms prescribed in this paragraph.
(B) Not later than December 31, 2015, the members of the
new Board of Ethics shall be selected as follows:
(i) One member shall be appointed by the DeKalb Bar
Association, chosen from the attorney members of the
association;
(ii) One member shall be appointed by the DeKalb
County Chamber of Commerce, which member shall not be
an attorney;
(iii) One member shall be appointed by a majority vote
of the DeKalb County legislative delegation;
(iv) One member shall be appointed by the judge of the
County voters in a 2015 referendum, appointments to the Board of Ethics had
been made by the DeKalb County CEO and the County Commissioners. HB 597
changed this process by allowing four of the seven appointments to be made by
private entities, and by eliminating the practice of allowing the CEO or County
Probate Court of DeKalb County;
(v) One member shall be appointed by Leadership
DeKalb;
(vi) One member shall be appointed by the six major
universities and colleges located within DeKalb County
(Agnes Scott College, Columbia Theological Seminary,
Emory University, Georgia State University, Mercer
University, and Oglethorpe University), which member shall
not be an attorney; and
(vii) One member shall be appointed by the chief judge
of the Superior Court of DeKalb County.
(C) The members shall each serve for terms of three years;
provided, however, that the initial terms of the first DeKalb County
Chamber of Commerce appointee, the first Leadership DeKalb
appointee, and the first DeKalb County legislative delegation
appointee shall be two years; and provided, further, that the initial
terms of the six major institutes of higher learning within DeKalb
County appointee and the judge of the Probate Court appointee
shall be one year.
(D) Successors to all members of the Board of Ethics and
future successors shall be appointed by the respective appointing
authorities not less than 30 days prior to the expiration of each such
member’s term of office, and such successors shall take office on
January 1 following such appointment and shall serve terms of three
years and until their respective successors are appointed and
qualified.
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Commissioners to make such appointments.2
The new Board of Ethics was established on January 1, 2016, pursuant to
HB 597. On March 9, 2016, Sharon Barnes Sutton, a sitting DeKalb County
Commissioner with pending ethics complaints against her, filed an action for a
writ of quo warranto3 to challenge the makeup of the Board, claiming that HB
2
Because the Board of Ethics could be tasked with investigating the CEO
or the County Commissioners with respect to potential ethics violations, HB 597
was crafted to eliminate the possibility that the very people being investigated
would be the same ones who were appointing the investigators. See HB 597 §
22A (h) (4) (“The Board of Ethics shall be completely independent and shall not
be subject to control or supervision by the Chief Executive, the Commission, or
any other official or employee or agency of the county government.”). As an
independent body, the Board also maintains certain governmental powers, such
as the power to issue subpoenas, assess economic penalties against anyone who
fails to comply with such subpoenas, and investigate and reprimand government
officials who violate the DeKalb County Code of Ethics. See HB 597 § 22A (j)
(6) and (k) (1). Those who violate the Code of Ethics or fail to follow an opinion
rendered by the Board may even be subject to prosecution by the DeKalb
County Solicitor-General and face up to six months in prison. HB 597 § 22A (k)
(1) (C). In addition, the Board is authorized to propose a budget that the
Commission “shall fund . . . as a priority” up to $300,000 and that the
Commission may fund in a higher amount, and the Board can spend that money
to hire its own staff and private investigator to assist in its investigations. HB
597 § 22A (h) (4).
3
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. It may be granted only after the application by some person either
claiming the office or interested therein.”). The parties do not dispute that Sutton
was qualified to seek a writ of quo warranto.
3
597’s delegation of power to private organizations to appoint four members of
the Board of Ethics was unconstitutional.4 See HB 597, supra, at § 22A (h) (2)
(B) (i), (ii), (v), and (vi). The trial court agreed with Sutton that the appointment
process created by HB 597 was unconstitutional and granted the writ of quo
warranto as to the four challenged Board members. The Board appeals from this
ruling,5 and, for the reasons that follow, we affirm.
The Board argues that the trial court erred in granting the writ of quo
warranto on the basis that the private organization appointment provisions of
HB 597 ran afoul of Ga. Const. of 1983, Art. I, Sec. II, Pars. I and II. We
disagree.
This Court has previously examined issues very similar to those presented
in the instant case in Rogers v. Med. Assn. of Ga., 244 Ga. 151 (
259 SE2d 85)
4
On November 5, 2015, Sutton previously filed a complaint for a writ of
prohibition, mandamus, declaratory judgment, and injunctive relief in an effort
to have the predecessor law to HB 597 declared unconstitutional and a “nullity”
in light of the old law’s repeal by HB 597. The quo warranto action was filed as
an amendment to this 2015 complaint. Sutton later dismissed her other claims,
leaving the quo warranto action as the only one relevant to the current appeal.
5
The appellants include Clara Delay, in her official capacity as
Chairperson of the DeKalb County Board of Ethics, and the DeKalb County
Board of Ethics. For ease of reference the appellants are referred to collectively
as the “Board” or the “Board of Ethics.”
4
(1979). Rogers involved a state law that required the Governor to accept
recommendations made by a private organization — the Medical Association
of Georgia — to fill vacancies on the State Board of Medical Examiners. In
concluding that the statute unconstitutionally delegated the power of
appointment to a public office to a private organization, this Court explained:
Fundamental principles embodied in our constitution dictate that the
people control their government. “All government, of right,
originates with the people, is founded upon their will only, and is
instituted solely for the good of the whole. Public officers are the
trustees and servants of the people, and at all times, amenable to
them.” Code Ann. § 2-201.[6] “The people of this State have the
inherent, sole and exclusive right of regulating their internal
government and the police thereof. . . .” Code Ann. § 2-202.[7] This
is accomplished through elected representatives to whom is
delegated, subject to constitutional limitations, the power to
regulate and administer public affairs, including the power to
provide for the selection of public officers.
“The General Assembly shall have the power to make all laws
consistent with this Constitution, and not repugnant to the
Constitution of the United States, which they shall deem necessary
and proper for the welfare of the State.” Code Ann. § 2-1401.[8]
These constitutional provisions mandate that public affairs shall be
6
It is worth noting that Rogers was decided in 1979, and the quoted
language referenced in the opinion now appears in Ga. Const. of 1983, Art. I,
Sec. II, Par. I.
7
See Ga. Const. of 1983, Art. I, Sec. II, Par. II (“The people of this state
have the inherent right of regulating their internal government.”).
8
Ga. Const. of 1983, Art. III, Sec. VI, Par. I (virtually identical language).
5
managed by public officials who are accountable to the people. As
important as any other governmental power is the power to appoint
public officials. They are the persons who control so much of our
lives. . . . In our opinion, it is clear that the constitutional provisions
cited above demand that the power to appoint public officers remain
in the public domain. The General Assembly may, within
constitutional limitations, establish qualifications for public office
and designate a governmental appointing authority. But it cannot
delegate the appointive power to a private organization. Such an
organization, no matter how responsible, is not in the public domain
and is not accountable to the people as our constitution requires
. . . . This is violative of our Constitution.
(Emphasis supplied.) Id. at 153-154 (2).
As was the case with the appointed officials in Rogers, the appointed
officials to the Board here wield government power. Also as was the case with
the statute in Rogers, HB 597 delegates the power of appointment of officials
to a public office with governmental powers to private organizations that are
“not accountable to the people as our constitution requires.” Id. at 154 (2).
Specifically, four of the appointments to the Board are to be made by
the DeKalb Bar Association, cho[osing] [one member] from the
attorney members of the association; . . . the DeKalb County
Chamber of Commerce, [choosing one] member [who] shall not be
an attorney; . . . Leadership DeKalb [choosing one member]; . . .
[and] the six major universities and colleges located within DeKalb
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County (Agnes Scott College, Columbia Theological Seminary,
Emory University, Georgia State University, Mercer University,
and Oglethorpe University), [collectively choosing one] member
[who] shall not be an attorney.
HB 597 § 22A (h) (2) (B) (i), (ii), (v), and (vi). As these private entities do not
answer to the people as required by our Constitution, they are not authorized to
wield the power to appoint public officials to the DeKalb County Board of
Ethics.9 See Rogers, supra; Ga. Const. of 1983 Art. I, Sec. II, Pars. I and II.10
9
Irrespective of the fact that Georgia State is a public university, as an
actual entity, the university itself has no independent legal existence and only
participates in the appointment process as one member of a larger group that
includes private entities that make a collective decision as to the appointment of
one Board member. HB 597 § 22A (h) (2) (B) (vi).
10
The fact that the people of DeKalb County approved HB 597 in a local
referendum does not cure the constitutional infirmity created by the appointment
process described in the local law:
This court has been repeatedly required to hold unconstitutional and
invalid legislative acts which have been approved by the people
affected in a referendum. Sellers v. Cox, 127 Ga. 246 (
56 SE 284)
[(1906)]; Green v. Hutchinson, 128 Ga. 379 (
57 SE 353) [(1907)];
Pickering v. Campbell, 146 Ga. 636 (
92 SE 74) [(1917)]; Foster v.
College Park, 155 Ga. 174 (
117 SE 84) [(1923)]. . . . If the people
of this State desire to modify the Constitution so as to enable the
courts to uphold legislative acts which have been approved in a
referendum, although they do not conform to the requirements of
the present Constitution, this can be done in a legal and
constitutional manner by amending the Constitution to that effect.
7
Accordingly, the trial court correctly granted the writ of quo warranto as
to the four challenged Board members appointed by private entities pursuant to
HB 597, as these appointments were unconstitutional. See Rogers, supra.
Judgment affirmed. Hines, C. J., Benham, Hunstein, Nahmias, Blackwell,
Boggs, and Peterson, JJ., concur.
Smith v. City Council of Augusta, 203 Ga. 511, 518 (2) (
47 SE2d 582) (1948).
8
Decided August 27, 2018.
House Bill 597; constitutional question. DeKalb Superior Court. Before
Judge Jackson.
The Summerville Firm, J. Darren Summerville, Angela R. Fox, Kurt G.
Kastorf, for appellants.
Dwight L. Thomas, for appellee.
9
