Delay v. Sutton, 304 Ga. 338

In 2015 DeKalb County voters approved HB 597, which reconstituted the DeKalb County Board of Ethics effective Jan. 1, 2016, and changed the appointment process for its seven members.
Under HB 597, four of seven appointments were allocated to private or non-governmental organizations (DeKalb Bar Association; DeKalb County Chamber of Commerce; Leadership DeKalb; and a collective of six colleges/universities); the others were appointed by public officials/judges.
Sharon Barnes Sutton, a sitting county commissioner with pending ethics complaints, filed for a writ of quo warranto challenging the constitutionality of delegating appointment power to private entities.
The trial court granted the writ as to the four members appointed by private entities, holding those appointments unconstitutional.
The Board of Ethics appealed; the Georgia Supreme Court affirmed, concluding the delegation violated the state constitution because appointment of public officers cannot be vested in private, nonaccountable organizations.

Issue	Plaintiff's Argument (Sutton)	Defendant's Argument (Board)	Held
Whether HB 597 unconstitutionally delegates appointment power to private entities	Delegation to private organizations to appoint Board members violates Ga. Const. art. I, § II (people must control government); private groups aren’t accountable to the people	HB 597’s scheme was lawful; local referendum approval and practical concerns (avoid conflicts of interest) justify the appointments	The delegation is unconstitutional; appointments by private entities invalidated
Whether Board members exercise governmental power justifying constitutional limits on appointment	Board has investigatory, subpoena, penalty, budgetary, and prosecutorial consequences, so it wields governmental power	Board argued independence from county officials and public approval of HB 597 justified the structure	Court held Board exercises governmental power, so appointments must be made by public authorities accountable to the people
Whether voter approval in a local referendum cures any constitutional defect	Sutton argued referendum cannot cure a statutory delegation that violates the state constitution	Board argued local voter approval validated the local law	Court held referendum approval does not cure a law that conflicts with the state constitution

Rogers v. Med. Ass'n of Ga., 244 Ga. 151, 259 S.E.2d 85 (Ga. 1979) (invalidating statutory delegation of appointment power to a private organization because appointees exercise public authority and the appointive power must remain in the public domain)
Smith v. City Council of Augusta, 203 Ga. 511, 47 S.E.2d 582 (Ga. 1948) (holding that popular referendum approval cannot validate a legislative act that conflicts with the state constitution)