DeKalb County School District et al. v. Georgia State Board of Education et al. (S13Q0981)
Court Briefs
Video
Court Transcript
Cox: [:36]
Good morning. May it please the court, I’m Tom Cox and with me is my partner, Marquette O’brien, with the law firm Carlock Copeland & Stair. I’d like to reserve approximately 5 minutes of my time for reply, but I realize it’s my responsibility to keep up with that. We represent Dr. Eugene Walker, the plaintiff in the district court action below and an elected member of the DeKalb County Board of Education. He was suspended from that office by the Governor pusuant to OCGA Section 20-2-73 which I refer to here and in the briefs as the removal statute which is now before this court on a certified question from the district court to determine whether it violates the Georgia Constitution.
[1:22]
I know I share with the justices the memory of those law school essay exams where a factual or legal scenario is laid out and we are to identify and discuss all the relevant issues raised. The statute under consideration here today reminds me of one of those essay questions as it could well serve as an essay question I believe in course on Georgia education law. And the question would be this, “Review the board removal statute and identify each respect in which it may violate the Georgia constitution. And discuss”. This is what we have tried to do in our briefs. But, before discussing why the statute violates the Georgia Constitution, I want to identify those respects in which it does because each of those items applies to all of three (3) of our main legal arguments.
[2:18]
First, the statute permits the Governor to remove an entire elected school board without any finding or even a charge of individual wrong doing by any single board member. Second, the removal process is triggered only by the finding of a private organization completely unaccountable to the voters. Third, it sets no standard at all for the determination to be made by the state board and then the Governor whether and entire board should be suspended. It merely says if the board decides … the state board will decide whether to recommend the suspension. Fourth, it requires at that suspension stage the suspension of all board members or none at all, regardless of any individual board actions. Fifth, it sets a standard then for a board member to get his elected constitutional office back that is arbitrary or impossible to achieve and is based solely on whether the private accrediting agency finds that elected board member preferable to the Governor’s already appointed replacement. Sixth, it leaves it up to the Governor to make that decision on final removal. The Governor being the very person who has already decided to suspend and replace the board member. And lastly, and getting back to the original point, it puts the individual elected constitutional officer, that being an elected school board member, in the incredible position of being permanently removed from office without ever having even been charged with any individual wrong doing much less ever having been proven to have committed individual wrong doing.
[4:14]
Now, with those items laid out, let me turn to why it is, which of these under these three (3) categories, under which the law is unconstitutional. First, it violates the concept of local control of public education by elected local school boards. That is provided in Article 8, Section 5, Paragraph 2.
Justice Hines: [4:44]
Mr. Cox, What would you say are your two (2) or three (3) primary arguments? What is that … if you would just give your two (2) or three (3) primary arguments on these issues.
Cox:
That’s the first one, that it violates local control of public education by an elected school board. Second, …
Justice Nahmias: [5:00]
You’ve got to spell that out for me because local school board members unquestionably can be removed from office for felony convictions. Right, under article 2? They can be recalled. So, there are very things that can affect …
Cox:
Recall and felony convictions are provided in the constitution.
Justice Nahmias:
So, my question is, can you spell that out as to why this is not one of the permissible means of removing people from office. In particular, as I understand the state’s argument, they focus on the constitutional language that the general assembly can set additional qualifications.
Cox:
That was exactly going to be my second point. That this does not, under any reasonable definition of the word ‘qualifications’, meet such a standard. That what is a qualification … as much as the state argues, I think, in a very well crafted brief. But, I think it’s forced to make a circular argument. Says, why is this a qualification? Because we say it is. We say that this is a way to get rid of unqualified board members, this statute is. But, it doesn’t say how this statute conceivably sets a qualification. What is this qualification it sets? A qualification, for instance, is … you’re referring to, Justice Nahmias, about a conviction of a felony.
The statute …. certainly, the General Assembly does have the authority to set additional qualifications beyond residence which is what the constitution mentions. It does that under several code sections. 20-2-51 sets various requirements concerning not only residence but employment. 20-2-63 sets requirements regarding conflicts of interest. A board member cannot be elected if they already have a direct family member sitting on the board.
[7:06]
Justice Hines:
Mr. Cox, you argued that the qualifications, though, must be set out somewhere. There must be a finite qualification. And, if not, what would be one that might be permissible?
Cox:
Well, certainly a qualification that would be permissible would be one that required … let me come up with one that the General Assembly has not done. A qualification that school board members have a college degree. I think that would be considered a very reasonable qualification that the General Assembly could set. It hasn’t done that. What is the very nature? I think you … to get at this issue, you have to look at what is the definition of a qualification. What are the characteristics of a qualification? I would say a qualification, to be meaningful, it has to be objective, it has to be uniform, it has to be clear and knowable and it has to be applied on an individual basis.
What this statute does, it doesn’t meet any of those criteria. An individual board member can do absolutely nothing wrong. Can do, in effect, be the most conscientious, competent serving board member, conceivably. Yet, if this private accrediting agency says, oh we think the board … there are board governance issues with this board. Then, that board and every member of it is subject to this statute’s suspension under this statute.
Justice Benham: [8:47]
Are you combining, in this argument, local control and due process for the board members? Are you combining those in one argument here? If so, can we get separation here?
Cox:
What I’m talking about now is purely the question of what a qualification should be. But, again, the reason I laid out the seven items first is because each one of those relates to both why it’s unconstitutional under local control by elected board. Why it’s not really a qualification. And why it violates due process of individual board members.
Justice Nahmias: [9:20]
Assuming there is a qualification like, for example, residency. Is that just a limitation on when you start the office or do you need to maintain … can the General Assembly provide a removal process if your status changes? For example, you’re not an employee of the school board when you get elected, but then you take a job with the school board. Can they setup a removal process?
Cox:
Yes, certainly. Particularly if there is notice at the time the board member is elected … that maintaining residence is a qualification. That is the case. This particular statute, I just submit there is no way it can conceivably be deemed a qualification. We tried to come up with a suggestion in the brief of how that qualification might be described if it were one. And it had to do with … well, you have to sit on a board that doesn’t get put on probation by a private agency. But, you … that doesn’t necessarily apply if the state board doesn’t conclude that it’s grounds for your particular suspension, or if the Governor decides, after hearing, that you’d be a better board member than the board member he’s already replaced you with.
Again, if the court interprets the constitution to define qualification that broadly, then I think it’s basically reading out of the entire constitution any requirement of qualification. What would prevent, for instance, the General Assembly from passing a statute that said the Governor may replace all Supreme Court Justices if the American Bar Association files a report that criticizes your decisions on the grounds that they don’t comply with the public interest. The Governor’s only discretion is to suspend all of you or none of you. And you can only get your jobs back if you prove individually at a hearing that you would more likely satisfy … your service on this court would more likely satisfy the American Bar Association than would the person that the Governor has appointed to take your seat. That is precisely what is at stake here.
Justice Nahmias: [12:00]
Well, there would be one difference which is in the judicial article, article 6. There is an elaborate removal process to the judicial qualifications commission, interestingly named not the judicial removal commission, but the judicial qualifications commission. And so, arguably, where you have a very well defined textual removal process, the General Assembly’s limited. I was somewhat surprised by your answer that the General Assembly can setup qualifications and then setup a removal process for it as well. But, that’s kind of implicit in the idea they can set qualifications.
Cox: [12:39]
Well, certainly that issue doesn’t even have to be reached here. The question is this even a qualification. If it’s not qualification then … I don’t want to try to defend ground that really isn’t at issue. Certainly an argument can be made that the court …or that the General Assembly would not have that authority, but I’m not making that argument. I’m making the argument that the General Assembly is limited to establishing what is a real qualification.
Justice Melton: [13:10]
You’ve emphasized the private entity. You have not focused on the board of education too much. Does that make a difference that the board of education is the entity that’s actually holding the hearing?
Cox:
Well, it … I submit that it should not. But, to the extent that there is some action required, other than … we don’t content that there is some action required other than a private accrediting agency putting a school district on probation in order to trigger the statute. But at that point, what is it that the state board is hearing? Is it hearing, under the statute, whether any individuals have committed wrong doing?
Justice Melton:
So, the issue at that point is not whether there is a private entity or not. Your issue, at that point, is whether there are standards.
Cox:
Well, I believe it is unconstitutional to delegate that kind of authority to a private entity to even trigger the statute. The fact that no board member …
Justice Nahmias:
We have auditing. We have agencies who get audited by private accounting firms, non governmental accounting firms. And, you’re saying, so an accounting firm … you can’t have a law that says that if an accounting firm identifies fraud, that triggers some process where state entities then decide what the result of that process is.
Cox:
Yes, I can say that an accounting entity that finds fraud cannot trigger a process that the first step of which is to remove all of the board members of a particular entity. That if it finds fraud as to a particular person, which this statute does not require, nor was it found that there was any individual wrong doing. That’s not what this statute says. It says, if … that if it just comes up with a status that says where putting you on probation, that all the board members are subject to …
Justice Nahmias:
But, if it were individualized then it would be OK. If a private entity triggered, found information, there was a statute that says, If a private accounting firm shows that someone is committing fraud then this process will be commenced.
Cox:
As a hypothetical matter, I don’t know the answer to that. But, I think it’s possible. Yes.
Justice Nahmias:
Well, and on the individual question, while the entire board is removed up front potentially, assuming various things are found. No one is actually removed from office until they have an individualized opportunity for a hearing. So, I’m not quite sure … I mean … you seem to have to overcome a second hurdle which is whether a temporary removal from office on kind of a group is a violation of something.
Cox:
Well, the permanent … the supposed temporary removal effectively is a removal. These board members get their very modest individual compensation, but they cannot vote on any action. They are replaced on the board …
Justice Nahmias
Temporarily. And then they can apply for reinstatement.
Cox:
They can apply for removal [reinstatement], and the standard they have to meet at that point, again, has nothing to do with whether they have committed any individual wrong doing.
Justice Benham: [16;25]
Well, help me with this portion. What we’re trying to do is provide some kind of stability. There’s a presumption of constitutionality of statutes in this instance. What would an affirmance … of this procedure … what impact would that have on constitutional offices in this state. Could this same format be used to remove any constitutional officer in this state?
Cox:
Well, in the absence of a specific constitutional prohibition on that, I think would be the state’s argument. I don’t want to state their position for them. But, yes, I think other constitutional officers, the General Assembly could pass a statute about the Governor, about … other constitutional officers and say we’re going to … the Governor is a bad example, because at least there, there would be a single individual that would be targeted, but here the removal … what the board member has to prove under this statute. If it’s faithfully applied by the Governor, it’s not that the board member is a competent board member. It’s not that the board member did no wrong. It’s that the board member is more likely to please SACS, the accrediting agency, than is the person that the Governor has already appointed to replace them. Now, if that’s the standard …
Justice Melton:
What’s the actual language in the test?
Cox:
The actual language is, that the reinstatement hearing …
Justice Melton:
Is more likely than not to improve the ability of the local school system …
Cox:
Whether the Governor … this is the only relevant evidence … evidence relevant relative to whether the local board of education member, singular, continued service on the local board is more likely than not to improve the ability of the local system to retain or reattain its accreditation. Again, nothing to do with whether that board member has committed any wrong doing.
Justice Nahmias:
You don’t think that the loss of accreditation by a school system is potentially wrong doing. If a school board intentionally tried to lose the accreditation of their district through malfeasance, purposely tried to do it. You’d say that’s not wrong doing because it’s a private agency and accreditation doesn’t matter?
Cox:
Are you saying if an entire board did that?
Justice Nahmias:
Yeah, an entire board purposely sets out to do it.
Cox:
First, state law doesn’t require any school system to be accredited.
Justice Nahmias:
I understand that, but …
Cox:
Second, if there was … if that required a proof that the individual board member set out to do that and did it, that would be a very different situation than we have here. Again, you’re asking me to defend a position that is certainly far beyond anything this statute … at least it would be particularized. If there were five (5) board members that were trying to do that and three(3) …
Justice Nahmias
Well, it is particularized as you just read on the back end, the permanent removal. Not on the front end, but on the back end. The permanent removal is more likely than not that that individual board member will more likely create accreditation problems.
Cox: [19:40]
Yes. But, this is an elected constitutional official.
Justice Nahmias:
That’s a different argument you’re shifting to. What’s the problem with that standard?
Cox:
The problem with the standard is that it sets out a requirement for hanging on to a board position that has absolutely nothing to do with that individual’s … even impact in that accreditation decision in the first place. It’s totally irrelevant then.
Justice Benham:
In the thirty (30) seconds you’ve got left you’ve got two cases from this court, Gwinnett County vs Cox and Robert vs Deal. What do they require us to do since those are recent decisions from this court?
Cox:
What do those particular decisions require you to do? They require, I believe, for you to conclude and answer the certified questions that this statute violates the Georgia Constitution in all three (3) of the respects that I have laid out. That it infringes on the voter’s right to chose an elected public board and it infringes on the guarantee of an elected public board. It does not set any qualifications for that board membership … under any reasonable definition of that word. And it clearly violates due process under any reasonable definition of due process. Thank you.
Ritter: [21:10]
Thank you, Madam Chief Justice, Justices. May it please the court, again it is my honor today to be in front of the court representing the Governor as well as the State Board of Education. This is an unusual case in the sense that …
Justice
You have two (2) sub sections of it, you’re going to address those with specificity I’m going to assume.
Ritter:
I will do so your honor. It is unusual because we have the certified questions. We’re travelling on a record developed in federal court as well as an administrative record, which I could not find on file with this court and may need to supplement with that. But, it was certainly filed below which would show the extensive process provided to appellant Walker in this case. The questions in this case first ask generally whether OCGA 20-2-73 somehow violates the constitution. Then, specifically asks whether it removes management and control of a local board of education and secondly whether it exceeds the General Assembly’s authority to pass legislation governing the qualifications of members.
[22:19]
Let me take up that second issue first. Mindful that this court, in addressing these questions, is going to be specific in answering the questions that have been asked.
Justice Blackwell:
Before we get into the constitutional questions, can you tell me in code section 20-2-73a1, who is an eligible member?
Ritter:
Undefined in the statute, the Governor found in a foot note which is found in the record as an exhibit to the amended complaint, which I believe is … I don’t have the document number written down … but … nineteen (19) I think. The Governor found that an ‘eligible member’ was a member who was on the board at the time the conduct that led to the potential loss of accreditation arose. There were nine (9), in general, board members on the DeKalb County Board of Education. Six (6) of those members were present at that time. Three (3) of them subsequently were replaced after the dates of the accreditation issues with SACS arose. Because of that, those three (3) members were found not to be eligible. There certainly was an issue and I don’t know that the statute answers this. Nor do I know that it’s really a question before this court, but I will say, there certainly was an issue whether it was appropriate to determine whether those were eligible members or not. And, the question really came down to what does this word eligible in the statute mean. To give it some meaning, it was determined that that must mean the members who were subject to leading to the potential loss of accreditation.
Justice Nahmias:
… the meaning in Section C that it … the code applies to all board of education members regardless of when they were elected or appointed.
Ritter:
I think that’s … that would be for ones in subsection C that are already presumed to have been suspended. So, they wouldn’t have been eligible in the first place. You’ll note …
Justice Nahmias:
That’s not what it … it says this code section applies to all board members regardless of when they were elected or appointed.
Ritter:
I understand. But, your honor, Justice Nahmias, we take the whole statute in para materia, and if you look at A1 and A2. A1 applies post April 20th, 2011. That only contains the word ‘eligible’. A2 applied to April 20th, 2011 and before, so … and that doesn’t contain that qualification of eligible, because everybody would have been eligible in that instance. When you get down to C, you can see that only one that have been suspended would be subject to that reinstatement provision in C. So, that would be all of those board members. I would agree, the statute could be clearer. But, I think if you read it as a whole, A, eligible meaning that it applied to the SACS provisions as interpreted by the Governor. And B, C taking in all of those individuals that would be governed by that procedure are consistent with the way Governor read the statute.
[25:20]
I’m going to the word ‘qualifications’. There are two (2) issues that Dr. Walker raises regarding qualifications. First, he says that there is, in fact, no qualification contained at all in this statute in the sense that he doesn’t claim that the suspension, potential removal of these members, is a qualification. And he says that it’s undefined in that regard.
Let me point out, as I think following on Justice Nahmias’ questions. First of all, Subpart A, basis this qualification on the potential loss of an accreditation by an accrediting body. Being a member of a board that led to that potential loss of accreditation is a qualification. But it is only a suspension in that case. The impact on Dr. Walker and others in that situation is de minimis because they are only suspended with pay with a rapid full due process hearing. In fact, in this case, they’re given somewhat of a double due process because there was a full contested hearing below just for the suspension which was held in front of the state board of education. And then, after that full hearing in which they were able to call of their witnesses, cross examine witnesses, had an independent officer who heard the evidence. With a recommendation to the Governor who then affirmed what the state board recommended. They would still be entitled to individual process after the fact before they are formally removed from office.
[27:00]
That potential reinstatement or formal removal from office has extensive process. But, without getting into the due process issue, as Justice Nahmias pointed out, it plainly turns on the qualification issue of whether their actions caused the school district to potentially lose accreditation. That conduct is a type of qualification. The General Assembly, by having the power to determine who is qualified, has the power to determine who is entitled to hold office.
Justice Nahmias:
And setup a removal process that’s not listed in the constitution?
Ritter:
That’s true because it says that they may establish qualifications as provided by law.
Justice Nahmias:
Let me ask you two (2) questions on that. One is, in the education article, there are four (4) offices that are created. The state school board, the state school Superintendent, the board of regents and the local school boards. Two (2) of them expressly give the General Assembly the authority to create qualifications and removal from office, the two appointed offices. The State School Superintendent and the local school boards just say qualifications. What are the words … and … why have the words ‘and removal’ in those other two provisions, if you say you don’t need them, qualifications implies the ability to create a removal procedure.
Ritter:
Well, I’m certainly mindful of that issue. But, I can tell your honor, as yourself pointed out, there are other places where the constitution describes qualifications as an aspect of removal.
Justice Nahmias: [28:42]
But those are … like the JQC, but that is in a provision entitled removal and talks expressly about the removal authority of the JQC.
Ritter:
That is true. But, none the less, just because they specified in one place the word ‘removal’ does not mean, obviously, that they were limiting the ability to remove in other places. For example,
Justice Nahmias:
Well then what does the word … doesn’t that render the words ‘and removal from office’ in two of the four provisions of article 8 superfluous? If qualifications includes removal, then why do two of the four provisions back to back, 1-2-3-4, two of them say and removal … qualification removal, two of them say qualifications. You say the words removal are nothing.
Ritter:
I can tell you, your honor, I think there are instances where there are superfluous words in the constitution as you’re aware. And, while I’d like to not read those words ‘and removal’ out of existence, the reality is they do not have existence in other places in the constitution. For example, and we take the case Eves Vs Harris, which is the primary case controlling in this situation. That case, in fact, passed on whether this power to set additional qualifications for office encompass the idea that you could suspend as here. That case involved article 2, to start with, it involved the felony conviction. But, Article 2 only refers to felony convictions. And, in Eves they were addressing suspension before conviction. Very similar process to what occurred in this case because in Eves the suspension occurred with pay so there was a de minimis impact on any due process right or property right in that. And the court said at the end of that decision, that same provision of the constitution, Georgia Constitution Article 2 – Section 2 – Paragraph 3 also provides that the legislature may establish other qualifications for office. And thereby, furnishes authority for this action. That’s the Eves decision at page 6.
So, the fact that there was a provision for removal involved in the Eves case that would have been post conviction, did not prevent the word qualifications for also allowing for suspension and potential removal even before conviction. Eves has already established this principal, and I note that in holding that, Eves also answers the appellant’s question whether this is a qualification at all. Because, an action that happens by a third party, outside of the realm of the governmental offices, can lead to a disqualification from office. And, that can arise while one is holding office. I think Eves cannot be interpreted otherwise since it says so much as that.
Justice Melton
How clear are the standards by which the board members will be judged under the statute?
Ritter:
Justice Melton, I’m not sure how to answer that question. How clear? They are clear enough. But, they’re … we could always have more process.
Justice Melton:
Do they have to be more specific than saying whether they violated the standards of this private entity?
Ritter:
No, they do not. They are adequate to say that if they have, as it says here, led to a potential loss of accreditation. That’s specific enough.
Justice Blackwell
Counsel, what do you say to Dr. Walker’s argument that to amount to a qualification, it has to be something that’s personal and individualized?
Ritter:
Well, let me start by pointing out that Dr. Walker’s argument about qualifications makes, and frankly about the whole statute, makes an assumption that is incorrect. It’s the difference between malfeasance and misfeasance. They are assuming, and in fact counsel said, that there had to be some proof of wrong doing. That is incorrect. The statute is not punitive in nature. The statute is about protecting the schools and the children in those schools. So, the answer to that question is, if there is some sort of conduct, even if it’s merely negligent conduct, that would lead to the potential loss of accreditation, that is sufficient. To lead to that, it doesn’t have to be proof of wrongful conduct on the part of the school board member.
Justice Blackwell:
Does it have to be personal or individualized negligent conduct?
Ritter:
Well, I think in this case, we would expect that it would have to be personal in the reinstatement proceeding. In the suspension proceeding, which is a summary proceeding when this issue first arises, it’s an emergency type proceeding. It’s not particularized because the evidence about particularization hasn’t necessarily been gathered yet. I speak in the general theoretical case because in this specific case, the SACS report was somewhat detailed and I think there were certainly grounds in this very lengthy, twelve (12) plus hour hearing about particularized conduct by different individuals. However, the statute does provide for the initial part of the hearing to be against all of the school board members. But the idea that it violates due process to do that is incorrect. Because that impact on whatever property right they have is de minimis and they have a right to a particularized hearing about their own conduct. In fact, it’s not in the record, but I will state in my place, that there are hearings right now scheduled administratively for many of these individuals. They will start on the 13th of June and I think the continue on consecutive days. Each one is having a separate hearing.
Justice Melton:
Does it matter if SACS standards are not fair standards, or if SACS has acted inappropriately? Is that subject to what can be heard?
Ritter:
I think that if the evidence that SACS relied on was not evidence of individual conduct at the reinstatement proceedings, the ones that are coming up, then of course, there might be a right to reinstatement in that instance.
Justice Melton:
I’m talking systematically, not just in this case. If the statute relies so heavily on SACS, what if somewhere down the road SACS acts inappropriately or uses criteria that shouldn’t be applied. What’s the safeguard there?
Ritter:
Well, I can tell you that we need to start with the obvious fact that SACS is not the only accrediting body. They chose to have SACS in this case. If SACS were proven to act in a way that were inappropriate, then they could chose to go to another accrediting body.
Justice Melton:
Is that subject to what can be heard at the hearing?
Ritter:
Well, … at the second hearing, I certainly think that SACS’ arbitrary conduct is something that can be heard. And I think that the … if the school board were to hear about the dis accreditation, based on arbitrary and inappropriate conduct by SACS, it would not recommend suspension of the entire board to the Governor. This is not a statute that calls for potential loss of accreditation in ipso facto then the Governor suspends the members. Rather, there is a hearing in front of the state school board. They then make a recommendation. Which is independent and goes to the Governor and the governor, then, adopts or rejects that recommendation. So, if you’re concern, Justice Melton, is about whether SACS acts inappropriately in some manner in its dis accreditation. A potential dis accreditation in the early stages. That can be rejected by the state school board and it can be rejected by the governor. That is as to the initial suspension. And, if it acts inappropriately as to individual members, then each one of those individual members can raise their concerns about that or present contrary evidence at this full APA style hearing that is subsequently held should they wish to be reinstated.
Justice Hines
You’re arguing that due process has already been met because the hearing takes place quickly. Is that the …
Ritter:
No … my argument is … first of all, we have to break the due process issue down into the separate things that the statute does. For our purposes to day, the suspension and then potential reinstatement. And Justice Nahmias, I think unentionally, referred to the first part as initial removal. It’s not … suspension with pay. That’s quibbling perhaps, but I’ll point there’s different due process issues for each one of those.
As to the suspension issue, due process is met because they are entitled to have some sort of hearing before suspension. They have notice and an opportunity to be heard. And the issue arises based on the qualifications issue based on subpart A1. And the injury to their property right is de minimis as in fact Eves held and Mathews Vs Eldridge and other cases because suspension with pay does not require extensive process. However, for reinstatement, we have a much more elaborate process that I think is plainly satisfactory as procedural due process and that is that you have the right to an APA proceeding where you have the right to call all your witnesses in front of a disinterested administrative law judge. In fact, chief judge Max Woods is hearing these cases. And then you have a right to a decision on that right and the right to appeal that decision. So, there is in fact extensive process that is provided for the reinstatement issue.
In this specific case, and I’m mindful that you have certified questions which ??? broader than the specific facts. But in this specific case, I think you would see based on the citations that I have provided in the brief and the full record of this voluminous hearing that they probably had adequate process for this entire case presented on the front end.
Justice Nahmias:
Can you go back for a moment to the removal issue. In the judicial article, that’s the only other place in the constitution I saw that the General Assembly can provide for additional qualifications of all judges in Georgia. Now there is a JQC process for removal and judges can be impeached. But, it seems like by your argument, the General Assembly could, for example, the hypothetical Mr. Cox said, the ABA said they don’t like the opinions of the court, the Chamber of Commerce says the opinions of this court are bad for business in Georgia and will create an actual harm. So they set up a process where … the exact same process for removal based on the standard of judges are not deciding cases in a way that more likely than not will be good for economic development in Georgia. Why would that not pass the test under your approach?
Ritter:
Well, first of all, let me point out that you have seen it in the judicial section of the code. But, again, returning to Eves, if we look at Article 2, which involves local legislatures that not only had the felony conviction back in 1988, but also had qualifications as provided by law. And they found that to be allowing removal. But, coming over to the specific question about whether this parade of horrors could arise if the General Assembly is given to much authority, I can tell you that it is the practice of this court and the law in this state that the General Assembly is given great deference and authority which I think is beyond the pale of being able to be questioned.
That doesn’t mean, however, it can act arbitrarily or they can act without any reasonable basis. It’s long been the law that you cannot, even when you’ve been given broad ??? authority to act, to act irrationally or without due process.
Justice Nahmias:
What would be rational about saying the decisions of court … just like the decisions of school board members that hurt school children’s accreditation and the economic … there’s a lot in the record about the economic situation of a county if the school board losses accreditation. The decisions of a court that hurt economic development in Georgia as determined by pick some agency and therefore, the General Assembly in its wisdom, it wouldn’t be irrational to say you can remove judges who decide things that way.
Madam Justice
Mr. Ritter, you can answer that question and then your time is up.
Ritter:
The specific answer to that question is, it is the General Assembly’s authority to make that decision to decide that if you agree it is rational for them to do that, then I would suggest that if they have the powers to decide qualifications as decided by law that indeed would fall within their authority. Thank you your honor.
“Extremism in defense of liberty is no vice. Moderation in pursuit of justice is no virtue.”