¶1In the Supreme Court of Georgia
¶2 Decided: December 14, 2021
¶3 S21A1123. FLOYD v. STONE.
¶4 BOGGS, Presiding Justice.
¶5 Appellant Maureen O. Floyd seeks permission to file an
¶6information in the nature of quo warranto against appellee Superior
¶7Court Judge Jesse C. Stone of the Augusta Judicial Circuit, with the
¶8goal of having him removed from office. Relying on Paragraph
¶9VIII (a) of Article V, Section II of the Georgia Constitution, Floyd
¶10contends that Judge Stone’s appointment was illegal, because the
¶11Governor did not “promptly” appoint him to fill the vacancy on the
¶12superior court created by the accepted resignation of his
¶13predecessor, Judge Michael N. Annis. See Ga. Const. of 1983, Art.
¶14V, Sec. II, Par. VIII (a) (“When any public office shall become vacant
¶15by death, resignation, or otherwise, the Governor shall promptly fill
¶16such vacancy unless otherwise provided by this Constitution or by law . . . .” (emphasis added)). The trial court granted Judge Stone’s
¶17motion to dismiss for failure to state a claim in quo warranto and
¶18denied Floyd leave to file an information against Judge Stone, in
¶19part because Floyd failed to show that removal from office through
¶20a proceeding in quo warranto is the proper remedy for an
¶21appointment that is not made promptly. We affirm the trial court’s
¶22judgment on that basis.
¶23 1. The facts are undisputed. At the May 2016 nonpartisan
¶24general election, Judge Annis was re-elected to a standard four-year
¶25term of office as a superior court judge beginning January 1, 2017.
¶26On December 11, 2019, Judge Annis submitted a letter to Governor
¶27Brian P. Kemp tendering his resignation, effective February 1, 2020.
¶28On December 20, 2019, Governor Kemp sent Judge Annis a letter
¶29accepting his resignation and noting the effective date. Soon after
¶30Governor Kemp accepted Judge Annis’ resignation, the Judicial
¶31Nominating Commission (“JNC”) began seeking candidates to fill
¶32the seat. On February 1, 2020, the office formerly held by Judge
¶33Annis became vacant. On February 17, 2020, the JNC sent Governor
¶34 2 Kemp a list of four potential appointees, which included Judge
¶35Stone. On February 22, 2021, more than a year after Judge Annis
¶36left office, Governor Kemp appointed Judge Stone to the office for an
¶37initial term ending December 31, 2022.1
¶38 On March 5, 2021, Floyd filed a petition for leave to file an
¶39information in the nature of quo warranto, which alleged that it was
¶40“filed within thirty (30) days after the swearing in” of Judge Stone.
¶41See OCGA § 9-6-60 (“The writ of quo warranto may issue to inquire
¶42into the right of any person to any public office the duties of which
¶43he is in fact discharging. . . .”). On March 31, Judge Stone filed a
¶44motion to dismiss the petition for failure to state a claim in quo
¶45warranto or, in the alternative, to deny Floyd leave to file an
¶46 1 Because the vacancy arose less than six months before the May 2020 nonpartisan general election for judges (which was postponed until June due to the COVID-19 pandemic), Judge Stone’s term will end, and he will face election, at the same time as had the Governor appointed him earlier. See Ga. Const. of 1983, Art. VI, Sec. VII, Par. IV (“An appointee to an elective office shall serve until a successor is duly selected and qualified and until January 1 of the year following the next general election which is more than six months after such person’s appointment.”); Barrow v. Raffensperger, 308 Ga. 660, 660 n.1, 676 & n.15 (842 SE2d 884) (2020). 3 information against him. Floyd amended her petition on April 15
¶47and April 28, and on April 29, the trial court held a hearing.
¶48 On May 6, 2021, the trial court entered an order granting
¶49Judge Stone’s motion to dismiss and denying Floyd permission to
¶50file an information. The court explicitly rejected Floyd’s argument
¶51that Judge Stone’s appointment was illegal because it was not made
¶52“promptly” as required by the Georgia Constitution, noting that
¶53Floyd cited no legal authority for her conclusion that the Governor’s
¶54appointment was not prompt. The court also noted that Floyd failed
¶55to cite any authority supporting her conclusion that removal from
¶56office by way of a quo warranto proceeding is a proper remedy for an
¶57unprompt appointment.
¶58 Floyd filed a timely notice of appeal, which was properly
¶59directed to this Court based on our “exclusive appellate jurisdiction
¶60in . . . [a]ll cases involving the construction . . . of the Constitution of
¶61the State of Georgia.” Ga. Const. of 1983, Art. VI, Sec. VI, Par. II (1).
¶62The case was orally argued on September 23, 2021.
¶63 4 2. Floyd contends that the trial court erred in granting
¶64Judge Stone’s motion to dismiss and in denying Floyd permission to
¶65file an information in the nature of quo warranto. We disagree.
¶66 Floyd’s argument that Judge Stone should be removed from
¶67office through a proceeding in quo warranto has three steps. First,
¶68she contends that the promptness requirement, which appears in
¶69the article of the Constitution that pertains to the executive branch,
¶70see Ga. Const. of 1983, Art. V, Sec. II, Par. VIII (a), applies to judicial
¶71vacancies, even though the judicial branch article has its own
¶72provision addressing the filling of judicial vacancies that does not
¶73include the same or even a similar promptness requirement. See
¶74Perdue v. Palmour, 278 Ga. 217, 219 (600 SE2d 370) (2004) (noting
¶75that Article V, Section II, Paragraph VIII (a) “is not a part of judicial
¶76Article VI of the State Constitution, but rather is found in Article V,
¶77which addresses the executive branch”). Cf. Ga. Const. of 1983, Art.
¶78VI, Sec. VII, Par. III (“Vacancies shall be filled by appointment of
¶79the Governor except as otherwise provided by law in the magistrate,
¶80probate, and juvenile courts. . . .”). Second, Floyd contends that
¶81 5 Governor Kemp did not act “promptly” in filling the office formerly
¶82held by Judge Annis, because the Governor waited a little more than
¶83a year to appoint Judge Stone. Third, Floyd contends that the proper
¶84remedy for a lack of promptness in filling a judicial vacancy is to
¶85remove from office the person who was appointed unpromptly. Our
¶86analysis begins and ends with the third step of Floyd’s argument.
¶87 It is “‘the general rule that remedies should be tailored to the
¶88injury suffered from the constitutional violation and should not
¶89unnecessarily infringe on competing interests.’” Schoicket v. State,
¶90___ Ga. ___ (___ SE2d ___) (Case No. S21A0840, decided Nov. 2,
¶912021, slip op. at 16-17) (citation omitted). The injury that flows from
¶92the lack of a prompt appointment is prolongation of the period of
¶93time during which there is a vacancy in the office. But as the trial
¶94court observed at the hearing, removing Judge Stone – whom Floyd
¶95does not contend is in any way personally ineligible to hold the office
¶96– would simply create another vacancy in the office, which the
¶97Governor would then be required to fill by appointment. See Ga.
¶98Const. of 1983, Art. VI, Sec. VII, Par. III. See also Barrow v.
¶99 6 Raffensperger, 308 Ga. 660, 669-670 (842 SE2d 884) (2020)
¶100(construing this provision); Charles H. Wesley Educ. Foundation,
¶101Inc. v. State Election Bd., 282 Ga. 707, 709 (654 SE2d 127) (2007)
¶102(noting that requirement that public official perform particular act
¶103within specific period of time, without more, does not divest official
¶104of authority to perform act after time has run). The effect of imposing
¶105such a remedy would be to further prolong the amount of time that
¶106the office was vacant. A remedy that aggravates the injury flowing
¶107from a constitutional violation is not a remedy that is tailored to the
¶108injury. Indeed, Floyd cites no authority, from Georgia or elsewhere,
¶109for the use of quo warranto to remove an officeholder under such
¶110circumstances.
¶111 Thus, pretermitting whether Article V, Section II, Paragraph
¶112VIII (a)’s requirement that the Governor promptly fill vacancies
¶113extends to judicial vacancies, and pretermitting whether the delay
¶114of a little more than a year in the appointment of Judge Stone
¶115violated that requirement, the proper remedy for that constitutional
¶116violation would not be to remove Judge Stone from office.
¶117 7 Accordingly, we affirm the trial court’s judgment granting Judge
¶118Stone’s motion to dismiss and denying Floyd permission to file an
¶119information in the nature of quo warranto.
¶120 Judgment affirmed. All the Justices concur, except Bethel, J., not participating.
¶121 8