*1 up as a been turned witness, knowledge had According limited to intensive including but not investigation,” result of “other for Appellant worked Revenue Service. by the Internal investigations testimony prior and the with Chambers closely identified and was history had a that Chambers counsel showed elicited defense fully yet determined. of which was not activities the extent criminal that when told, objection, also been jury The had in with the murder connection police to the station was called again hearing, probation it was for a he assumed kidnapping, See of character. activity and evidence indicating prior criminal 88) (1983). (2) (299 Therefore State, App. 15 Lehman v. 165 Ga. enumeration. find no merit this we All the Justices concur.
Judgment affirmed. February 16, 1984. Decided Lane, appellant. H. Michael Hicks, E. Assistant Slaton, Attorney, Richard R. District
Lewis Bowers, General, Attorney J. Michael Attorney, Michael J. District Davis, appellee. (two cases).
40161, 40162. CALDWELL v. BATEMAN et al. Justice. Gregory, filed a Georgia, of Labor of the State of Commissioner Court. He named the five members Superior Bibb Disclosure Commission as Campaign and Financial
the State the de- particulars He in a number of defendants. statutory authority during of their fendants had acted excess creating and that the Act campaign, of his election part. sought injunctive He Commission was unconstitutional attorney fees. The trial court found for declaratory relief as well as on others. plaintiff particulars on some of the and for defendants from further judgment enjoined The trial court’s the defendants period days, of 45 unless investigation, additional After charges brought. found and written cause was court, of its report in the trial the Commission issued a judgment of the findings. appeals The Labor Commissioner from the refusing to allow an trial court and from a later order of the trial court an attack amendment which undertook part reverse part, of the Commission. We affirm remand with instructions.
All the issues raised on relate to the Campaign Financial Disclosure Act. p. seq., amended; Ga. Laws 155 et. as OCGA etseq. etseq.). requires 40-3801 candidates office to make public disclosure of financial activities relating to the It campaign. creates the State Campaign and Financial gives Disclosure Commission and it certain *2 and duties. We must if determine the Commission in this case has authority duties; exceeded its appellant’s and whether First rights political Amendment of violated; association have been whether the provision appointment Act’s of two of the Com- by mission members officers of the legislature violates the con- requirement stitutional power; of of whether the trial court erred in not considering upon the attack the Commission Report; and whether attorney fees should have been awarded. Further, initially we must consider whether certain of the issues have become moot.
There was little dispute of fact the trial court. The record and transcript disclose that was a candidate for nomination the statewide Democratic Primary 1982 for election to succeed himself as Commissioner of Labor. parts He was elected. During of 1982 and 1983 the Commission investigation, conducted an issued subpoenaes, records, examined and public hearings held regarding appellant’s contributions, campaign expenses and activities. The investigation included inquiry into allegations employees that state of the Department of Labor contributed services to the campaign at the same they compensated time were by the State. Also investigated were allegations that campaign contributions had been coerced.1 Alleged discrepancies in campaign financing disclosure reports were investigated. The investigation and other activities were undertaken support written, the of a verified and without a finding of cause. There was considerable and news media interest in the activities of and given information out by the 20,1983, Commission. On June after the trial court’s May dated the Commission issued a critical detailed finding that appellant violated the Campaign Financial Dis- closure Act. The report was referred to the Attorney General.
1. The Commission members argue complained that all conduct ceased the filing of the June report, hence all relating issues thereto are now They moot. rely on the rule if “that the thing sought 1The trial court held the authority Commission investigate lacked coercion of parties contributions. The challenged have holding. not
146
injunction
denial
the
grant
takes
the
or
enjoined
place,
fact
be
1)
(241
Smith,
Ga.
SE2d
Adams v.
becomes moot.”
in this case.
(1978).
rule to the facts
apply
the Adams
decline
capable
repetition yet evading
Instead,
issues to be
we hold these
review,
doctrine of mootness.
subject
not
therefore
(1983).
(1) (298
480)
Moses,
v.
The chose contribution to disclosure loan, debt, by subscription, gift, forgiveness made “means of value,” money or or but to exclude deposit anything advance the requirement personal from the disclosure value of services un- (4) (Code Ann. compensation. less rendered for OCGA 21-5-3 § § 40-3803). employer We an interpret the Act mean that should by compensate employee personal services rendered the his candidate, compensation employee to a the amount of such would be be employer a from the for which disclosure would contribution employment If himself from required. employee an should absent no to candidate there would be personal order render services by employer. contribution employee, case, The in such a has personal rendered services compensation for those services. The employee has wrongfully withheld employer services owed to his accountable, which he be held but not under the Campaign and Financial Disclosure Act. applies same rationale when one personal who contributes employee of the State. It cannot be said that the State
has made a contribution to the employee candidate. The has simply rendered services to the compensation by candidate without wrongfully withholding services owed the State. There are remedies2 for such activities but they lie outside the scope of the Campaign and Financial Disclosure Act. The trial court erred in holding that statute vests the Commission to investigate allegations employees of state campaigning on state time.
3. Appellant complained that proceeded with its investigation without him affording process requirements due provided the Act. The trial court agreed but declined to enter Instead, an immediate injunction. trial court allowed an ad- days ditional 45 for the Commission to complete its investigation and then to cease or bring charges formal process. and afford due hold the trial court erred failing grant injunction. immediate record discloses the Commission subpoenaed witnesses, public held hearings at which interrogated, witnesses were and ultimately issued a report, but all the while refused to allow a request by the Commissioner participate by hearings witnesses, cross-examining making objections and presenting evi- dence.
The Act provides Commission shall not initiate (1) upon or, unless based complaint a written verified (2) based a finding cause the Commission. OCGA 40-3810). 21-5-12 Neither requirement was met provides case. The Act for the preliminary Commission to make a investigation of a written and thereafter either dismiss the or summon the hearing. violator to a OCGA § (10) (Code (f) The hearing is to be conduct- *4 ed according to the Georgia Administrative Procedure Act. OCGA (Code Chapter 50-13 Ann. 3A-101 seq.). requires et The latter Act § notice, one a holding hearing counsel, to afford right right present evidence, power of subpoena, and other elements of due process with an opportunity judicial for final procedures review. The 2 also, Regulations State Personnel Board Rules and Section 3.500. See OCGA § (CodeAnn. 40-2006); (Code 89-972); OCGA 45-11-10 18 USC 595. § § §
148
Before
investigation.”
a
“preliminary
case went far
process
due
proceed,
here
of the sort held
public hearing
It
to allow the
violator.
was error
given
must be
days
45
its
for an additional
Commission to continue
process.
due
affording
rights of
issue its
without first
and to
particularly a
hearings,
of
Appellant points
4.
conduct
31,1983,
rights
his
under the
violating
as
conducted March
hearing
Buckley
v.
political
free
associations.
Amendment
to be
First
659) (1976).
(96
He contends the
Valeo,
1
46 LE2d
424 U. S.
SC
disorderly as to violate
was so
atmosphere
hearing
at the March 31
543)
(85
Texas,
1628, 14
SC
LE2d
process.
due
Estes v.
The trial court found instance, likely the defendants’ isolated and not to recur because of require orderly hearings. present of their understanding no injunction these issued. We find error. findings Based on no members, provides five one of whom 5. The Representatives appointed Speaker is of the House (b) (Code by the Lieutenant Governor.3 OCGA 21-5-11 another 40-3809). Act violates the Appellant contends powers permitting these constitutional doctrine of appoint members a legislative of the branch to members Commission, “The which is a creature of the executive branch. legislative, powers and executive shall forever remain judicial one, separate distinct, person no the duties discharging others, shall, time, same functions of of the at the exercise the either I, II, except provided.” as herein Art. Sec. Par. Constitution IV Ann. § (212 Ga., 681 SE2d v. 233 Ga.
Appellant Murphy cites State 836) (212 (1975); 839) (1975); 667 SE2d of Ga., Greer State 233 Ga. v. (208 85) (1974). Ga., In each and, Fuller v. State of Ga. 581 and on persons legislature served both of these cases same authority. is dual service. Here there no executive board or prohibit person from simultaneous plain words of the Constitution one than branch. ly discharging the duties functions more However, by a member of the appointment we the mere hold that branch, to an commission legislative non-legislator of a executive as points serves President Commissioner out the Lieutenant Governor Senate, legislative of the hence member of the branch. is a *5 discharge against not a simultaneous duties functions which powers our constitutional doctrine of is directed. Subsequent filing 6. notice to the court, the trial moved to amend his to raise an against during attack of the Commission rendered 45-day investigation permitted by extension of the the lower court’s sought party order. He also declined to add a defendant. The trial court holding merits, to consider the motion on its that it lacked jurisdiction pending appeal. because of the We remand for a con- light opinion. sideration of the motion in On remand the prayer attorney trial court shall take further consideration of the for holding, light fees view of our and in of the result reached after remand and resolution of the aforesaid motion.
Judgment part, part affirmed reversed and remanded for except further All concur, Hill, consideration. J., Justices C. Bell, J., who dissent. February 1984.
Decided appellant. Erion, Exum, Wootan, Erion, Mathis & Charles T. Attorney George Schingler, Bowers, General, Michael J. P. Attorney appellees. General, Assistant dissenting. Justice, Chief Hill, my exception I view, dissent 2. In Division from “contributions” under the act for “the value of performed by persons compensation who serve without from voluntary (emphasis supplied) sources and on a basis” does not regular job paid. include time taken from one’s is which one employee compensated, being services, value of these for which the employee, employer. is a “contribution” if not the appears I also dissent to Division insofar as it to sanction an appellant’s amendment after the trial court has finally disposed of the case. POWELL, GOLDSTEIN,
40220. & HAMILTON v. FRAZER
MURPHY et al. Justice. Weltner, granted general certiorari to determine whether or not damages malpractice legal for mental distress be recovered