COLLINS et al. v. MORRIS et al. (two cases)
S93A1311, S93A1341
Supreme Court of Georgia
January 24, 1994
263 Ga. 734 | 438 SE2d 896
CARLEY, Justice.
However, the Supreme Court in Doggett held that “consideration of prejudice is not limited to the specifically demonstrable.” Doggett, 112 SC at 2692. The Court held that the presumption of prejudice that arises from the passage of time strengthens with the length of the delay and may tilt the prejudice factor in a defendant‘s favor, although it may not alone carry a Sixth Amendment claim without regard to the other Barker criteria. Id. at 2692-2694. In Doggett, the Court concluded that a delay of eight and one-half years raised an inference of prejudice. We conclude, however, that the 27-month delay in this case is insufficient by itself to raise an inference of prejudice.
2. Balancing the foregoing factors, we conclude that the fact that Boseman suffered no impairment to his defense, the most important prejudice component of the speedy trial equation, and the fact that Boseman waited 27 months before asserting his right to a speedy trial lead to the conclusion that the trial court properly ruled that Boseman could not prevail on his claim that he was denied his constitutional right to a speedy trial.
Judgment affirmed. All the Justices concur.
DECIDED JANUARY 24, 1994.
David V. Weber, Clayton L. Jolly III, for appellant.
Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, Michael J. Bowers, Attorney General, for appellee.
S93A1311, S93A1341. COLLINS et al. v. MORRIS et al. (two cases). (438 SE2d 896)
CARLEY, Justice.
Appellants are the elected members of the Aragon City Council against whom, in October of 1992, appellees filed an application for a recall petition. Pursuant to
Subsequent to the ruling appealed in Case No. S93A1311, appellants brought a separate declaratory judgment action attacking the constitutionality of the Recall Act,
The identical enumerations of error have been filed in both cases. Accordingly, the two appeals have been consolidated for disposition in this single opinion.
1.
shall be limited solely to a review of the legal sufficiency of the recall ground or grounds and the legal sufficiency of the alleged fact or facts upon which such ground or grounds are based as set forth in such recall application; and the review of such alleged fact or facts shall be only for the determination of the legal sufficiency of such alleged fact or facts as to form and not as to truth and shall not include discovery or evidentiary hearings.
According to appellants’ enumeration of error, this provision of the Recall Act is unconstitutional, because the statutorily prescribed judicial
review of the “legal sufficiency” of a recall application impermissibly fails to satisfy minimum due process requirements by denying an elected official any meaningful opportunity for a hearing even when the evidence would demonstrate that the alleged factual grounds for recall are completely fabricated.
We recognize that “[a]n elected city official who is entitled to hold office under state law has a property interest in his office which can be taken from him only by procedures meeting the requirements of due process.” [Cit.] City of Ludowici v. Stapleton, 258 Ga. 868, 869 (1) (375 SE2d 855) (1989). “But it is also true that an official takes his office subject to the conditions imposed by the terms and nature of the political system in which he operates.” [Cit.] Eaves v. Harris, 258 Ga. 1, 3 (2) (a) (364 SE2d 854) (1988).
Recall is a procedure whereby it is the voters themselves who make the ultimate determination as to whether an official should re-
Appellants urge, however, that the recall “condition” provided in
the amount of due process required depends upon the circumstances at hand: ““(d)ue process,” unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.’ [Cit.] ‘(D)ue process is flexible and calls for such procedural protections as the particular situation demands.’ (Cit.)”
Eaves v. Harris, supra at 4 (2) (b).
Through enactment of
If one or more of the statutory grounds for recall set forth in
OCGA § 21-4-3 (7) (B) are alleged in the recall application, then the ground or grounds for recall are legally sufficient. To determine if the “fact or facts upon which such ground or grounds are based” are legally sufficient, a [superior] court should consider the following: 1) assuming the fact or facts to be true, [whether] they allege misconduct which constitutes a legally sufficient ground for recall according to the statutory definition of that term; 2) if so, [whether] the fact or facts are stated with “reasonable particularity[.]” [Cit.]
Once the recall application has been judicially determined to be legally sufficient as to both the stated ground and the alleged factual support, the recall petition can then circulate and, if a sufficient number of qualified voters sign the petition, a recall election will be held in accordance with
“The fundamental idea of due process is notice and an opportunity to be heard. [Cit.] Due process [does not guarantee] a particular form or method of state procedure. [Cit.]” Nix v. Long Mtn. Resources, 262 Ga. 506, 509 (3) (422 SE2d 195) (1992). Since “due process” is a flexible concept which calls for such procedural protection as the ““particular situation demands[,]“‘” (Eaves v. Harris, supra at 4 (2) (b)), a statute limiting the role of the judiciary in the “particular situation” of the recall of public officers to that of making merely an initial determination as to the legal sufficiency of the recall application and, if it is sufficient, allowing the electorate ultimately to decide if the officer will or will not be recalled is not unconstitutional. “We conclude, in sum, that the [recall] statute affords adequate due process protection to the public official....” Eaves v. Harris, supra at 4-5 (2) (b).
2.
“Under both [the doctrine of res judicata and that of estoppel by judgment], in order for the former decision to be conclusive, it must have been based, not merely on technical grounds, but at least in part on the merits where under the pleadings they were or could have been involved. [Cits.]” [Cits.]
This statutory scheme is not such as would afford office holders a viable res judicata defense against submission of a revised application for a recall petition. Since judicial review is statutorily limited to a determination of the legal sufficiency of the form of the application for a recall petition, any previous judicial determination as to the legal insufficiency of the form of an application for a recall petition would not give rise to the assertion of a viable res judicata defense against submission of a subsequent revised application for a recall petition. See generally Smith v. Davis, 222 Ga. 839 (152 SE2d 870) (1967). A former adjudication merely as to form rather than on the merits does not operate as res judicata. Goldstein v. Ga. R. &c. Co., 31 Ga. App. 688 (2) (121 SE 846) (1924). Res judicata does not attach to a judicial ruling which “points out a defect in form rather than a defect in substance. [Cit.]” Westbrook v. Griffin, 27 Ga. App. 290 (1) (108 SE 123) (1921). Under the statutory recall scheme enacted by the legislature, it is only the provisions of
Judgment affirmed. All the Justices concur, except Benham and Hunstein, JJ., who concur in part and dissent in part.
BENHAM, Justice, concurring in part and dissenting in part.
I respectfully dissent from Division 1 of the majority opinion because I believe the Recall Act unconstitutionally deprives an elected official of the official‘s property right in the office without due process of law.
I concur fully in the majority‘s statements that an elected official has a property interest in the office that can be taken away only by procedures meeting the requirements of due process, that an elected official takes office subject to the possibility of being recalled by the electorate in the future, and that an elected official is statutorily entitled to judicial scrutiny only of the legal sufficiency of the recall application. See
The requirements of due process are satisfied if a citizen has reasonable notice and opportunity to be heard to present a claim or defense. Hancock v. Bd. of Tax Assessors, 226 Ga. 570 (176 SE2d 102) (1970); Murphy v. Murphy, 214 Ga. 602 (2) (106 SE2d 280) (1958); City of Macon v. Benson, 175 Ga. 502, 508 (166 SE 26) (1932). See also Nix v. Long Mtn. Resources, 262 Ga. 506 (3) (422. SE2d 195) (1992); Keenan v. Hardison, 245 Ga. 599 (2) (266 SE2d 205) (1980). The Georgia Recall Act provides an elected official with adequate notice of the transpiring events by requiring the election superintendent to notify the targeted elected official that an application for recall has been officially issued for circulation (
The grounds for recall are statutorily required to be repeatedly put before the electorate: the “brief statement” of the facts upon which the recall is based must be read by or to each signer of the recall petition.
None of the above States which provide for recall elections requires a judicial determination of the truth of the allegations contained in the application for recall. But each State does extend to the beleaguered elected official an opportunity to be heard — the opportunity to present his side of the story to the electorate and justify the conduct which is serving as the basis for taking his office from him. Georgia‘s statute does not provide the means by which an official may be heard on the issue.
I recognize that we have adopted the U. S. Supreme Court‘s statement that “due process is flexible and calls for such procedural protections as the particular situation demands.” Matthews v. Eldridge, 424 U. S. 319, 334-335 (96 SC 893, 47 LE2d 18) (1976), cited in Eaves v. Harris, 258 Ga. 1 (2) (b) (364 SE2d 854) (1988). In Eaves, we endorsed a flexible standard of due process after emphasizing that a suspension from office pursuant to
It is the responsibility of the judiciary, under our system of “checks and balances,” to ensure that the procedure of recall enacted by the General Assembly affords the elected official due process of law. See City of Ludowici v. Stapleton, 258 Ga. 868 (375 SE2d 855) (1989). After examining our statutory scheme, I find it sadly lacking a fundamental ingredient — due process of law. On that basis, I conclude that the statute is unconstitutional and that the judgment of the trial court finding it constitutional (Case No. S93A1341) should be reversed.
I am authorized to state that Justice Hunstein joins in this opinion.
DECIDED JANUARY 24, 1994.
James R. Crawford, Michael D. McRae, for appellants.
Brinson, Askew, Berry, Seigler, Richardson & Davis, C. King Askew, Gammon & Anderson, Joseph N. Anderson, for appellees.