*1 The evidence was sufficient to authorize a rational trier of fact to appellant guilty robbery beyond find murder and armed a reason- doubt. Jackson v. 443 U. Virginia, able S. 307 61 LE2d 2. assuming, arguendo, Even that the trial court erred by admit- as similar transaction ting evidence the fact that shots were fired issue, into Janice Miller’s home five days before the crimes in in that the State failed preponderance evidence to prove offense, was the of this appellant perpetrator independent we never- theless conclude based on the overwhelming evidence of appellant’s guilt highly it is probable error did not contribute to the judgment we find beyond error, reasonable doubt that if 869) any, State, was harmless. Johnson v. (1976). carefully
3. We have reviewed appellant’s remaining enumera- tions and find no reversible error in the trial rulings regard- court’s the admission of three ing other instances of similar transaction evi- dence or of a photograph of one of the similar transaction victims.
Judgment All the Justices concur. affirmed. February 9, 1998.
Decided Steven E. Phillips, for appellant. Howard, Hart,
Paul L. Attorney, District Bettieanne C. Juliette Scales, Baker, W. Assistant Attorneys, District Thurbert E. Attorney General, Smith, General, Paula K. Attorney Senior Assistant Jayson General, Phillips, Assistant Attorney appellee.
S97G1113. DAVIS et al. v. SHAVERS. Justice.
Carley,
Appellants filed recall
certain
applications against
officials of the
City of Fort Oglethorpe,
including Glenn Shavers. When those offi-
sought
cials
of the legal sufficiency
review
of the applica-
tions, a
insufficient,
trial court found them to
and this
Shavers,
Court affirmed. Davis v.
judgment
upon
Shavers,
errors in the
Davis v.
based
granted
App., supra at 500-502 We
certiorari to determine
conditionally
or abso-
abso-
in a recall
statements
whether
lutely privileged.
not
Because
hold that such statements are
we
Appeals.
lutely
judgment
privileged,
affirm the
of the Court of
we
*2
regarding public figures
general rule,
are not
statements
As a
(9)
absolutely privileged.
§ 51-5-7
and New YorkTimes
Under OCGA
(84
686) (1964), pub
710, 11
a
Sullivan,
procedure hint nature. of a contrary, policy it is the of this state to restrict the rule of privilege in lim- absolute the law libel to “narrow well-defined Lamb, its.” Fedderwitz v. Accordingly, recognize importance while we that criticism of the plays offices, conduct of officials the administration of their that, we conclude consistent with New York Times Co. Appellants protection privi- supra, are entitled to the of a conditional 1964). (Cal. 41 Cal. Ferguson, Rptr. Kramer v. only. lege Therefore, Court of cor- Appeals Ray, supra. also Gunsul v. resolved this issue. rectly J, concur, Fletcher, P. except All the Justices
Judgment affirmed. who dissents. Justice, dissenting. Presiding
Fletcher, only file a recall have application that voters who By holding unnecessarily has eroded the majority privilege, conditional much less lead petition, individuals will of recall. Few action for effort, face the libel they may possibility recall when chilling have a opinion Because the court’s will their participation. already the recall statute suffi- provides political speech effect I allegations, elected officials from false safeguards protect cient dissent. seeking The Recall Act of 1989 outlines
1. reg- To initiate the electors who are process, recall of officials.1 in the district file an for a istered voters official’s must election The superintendent.2 with the recall, of the a brief statement include a statement *3 based, and an the by the are affidavit grounds facts on which that each the person signing application and circulator chairperson If superin- the facts are true.3 the election alleged is an elector and is sufficient and the legally determines that the application tendent electors, the official certifies the are signers qualified forms, notifies the targeted public recall petition issues official for circulation.4 officially has been issued officer that recall the may challenge application by seeking officer then The public the grounds in court.5 The court reviews both superior review they are factual basis to determine whether for recall and First, for recall must to grounds correspond sufficient.6 the legally discretionary not include reasons set forth in the statute the reasonable Second, allegations the factual must be stated with acts.7 1 21-4-21. See OCGA 21-4-1 to §§ 21-4-5. § OCGA (b). OCGA 21-4-5 § (f)-(i). § OCGA 21-4-5 (a). OCGA 21-4-6 (f); Collins v. see Branch, “Grounds for recall” See Brooks v. means: (A) office, has, holding public conducted himself or her- That the official while adversely to and affects the administration of his or self in a manner which relates rights adversely public; and affects the and interests of the her office and (B) That the official: (i) office; act acts of malfeasance while in Has committed an or
particularity allega- Third, and be more than mere conclusions.8 the specify statutory ground must conduct that would constitute a tions for recall.9 imperative application clarity
“[I]t
that the
is
state with
supporting
specificity the facts
the
for recall
such that
sought
properly
the
and the official
to be recalled are
both
notified
alleged
to have been committed.”10
violation
Although
superior
evidentiary hearing
the
court does not hold an
allegations,
or determine the truth of the factual
its review is often
the
violated
retirement
decisive.
application alleged
In the recall effort that led to this libel
that
city
council member A. Glenn Shavers
action,
example,
amending
the Code of Ethics for Government Service in
system
ordinance
resolution rather than
ordinance
voting
salary
Despite
in
an advance
to another council member.
allegations,
specificity
of these
we affirmed the trial
find
court’s
ings
legally
concluding
insufficient,
that the recáll
they
why
notify
alleged might
failed to
the facts
con
stitute an act of
in
malfeasance or misconduct
office.12
superior
plays
reviewing
Thus, the
court
a critical role in
petitions
prevent
based on bare
or
pleading.
language
procedure,
superior
notice
treats the
In the
of civil
court
challenge
official’s
as a
and,
motion to dismiss
assuming
alleged
true,
the facts
are
determines whether
ground
only
sufficient as matter of law to state a
after the
for recall. It is
superior
court rules that the
sufficient
sponsors may
circulate the recall
This
petition.13
distinguishes
procedure
review
this state’s
from the
appellate
only
other states where
courts have found
a conditional or
violated,
(ii)
office;
Has
his or her oath of
(iii)
office;
Has committed an act
of misconduct
(iv)
guilty
perform
prescribed
law;
Is
failure to
duties
or
(v)
misused, converted,
willfully
misappropriated,
authority,
Has
or
without
public property
or
funds entrusted to or associated with the elective office to
appointed.
which the official has been elected or
*4
8
(416
732) (1992).
Hubbard,
279,
Hamlett v.
279-280
SE2d
9
Branch,
Brooks v.
79 privilege petition.14 qualified for electors who privilege public policy,15 underlying principle for a is 2. Since the requires grant privilege an absolute or conditional the decision to privi- balancing competing Weighing interests. favor of the lege society’s is interest in a free and full discussion of this case grant performance public opposing office; of officials in their personal privilege of a professional reputation. is the interest of officials constitutionally based in Since recall is Georgia, public policy providing meaningful process.16 favors Georgia guarantee
Both the United States and Constitutions speech.17 right A to criticize officials for their con- free citizen’s right. duct in office an essential element of this constitutional independence Those who won our believed . . . that duty; political a fun- discussion is a damental and that this should be principle government. They of the American rec- ognized the risks to which all human institutions are sub- ject. merely But knew that order cannot be secured through punishment infraction; it fear of for its that is haz- discourage thought, hope imagination; that ardous to repression; repression hate; fear hate menaces stable in proposed breeds that breeds safety
government; path that the of lies freely supposed grievances opportunity to discuss fitting remedy remedies; for evil coun- good Recognizing tyrannies sels is ones. . . the occasional . governing majorities, they so of amended the Constitution speech assembly guaranteed.18 that free should be Permitting against actions individuals involved in the recall libel chilling process of constitu- will have effect on the exercise this “ speech. tional to free Whatever is added to the field of libel is ”19 Although majority opinion taken from the field of free debate.’ acknowledges importance officials, elected it criticism of recognition by granting only undermines this to the statements in a recall a conditional
application. requirement that mal- “The 14 Court, See, e.g., Rural Elec. Ass’n v. District Concerned Members Intermountain (Colo. (Cal. Wilson, 1986); 1935); Ray, P P2d v. P2d 248 State v. 241 713 923 Gunsul 45 (Wash. 1925). 970 691, Lamb, See Fedderwitz v. Const., II, II, See Ga. Art. Sec. Para. IV. Const, I, I; I, U. S. amend. Ga. Const. Art. Sec. Para. V. (Bran 1095) (1927) 357, 641, Whitney California, SC 71 LE v. 274 U. S. déis, J., concurring). 686) (1964) 11 LE2d Co. v. 376 U. S. New York Times (D.C. denied, Patterson, Cir.), (quoting Sweeney U. S. 678 F2d cert. (1942)). *5 proved provides protection
ice critically at an evanescent for the be best certainly up
to discuss affairs and does not measure sturdy safeguard to the have said press, speak only embodied in the First Amendment.”20As we
previously, government, they “if critics of be for libel or citizens or being prosecuted slander,
at the risk of government open criticize at all.”21The need for and few will free justifies concerning performance grant- debate of elected officials ing immunity persons absolute to who seek the recall of a offi- cial for in misconduct office. ability necessary
Moreover, the to file a defamation action is not protect alleged Georgia appli- to official from false facts in a recall many states, cation in this state. Unlike General Assem- bly already provided punishment persons has for the who make allegations. requires false The recall statute both the chairperson sign stating circulator to affidavit that the facts on person A which the of recall are based are true.22 signs may prosecuted who a false affidavit for false swear- ing, punishable by up imprison- $1,000 a crime a fine to a term of years.23 any person gives addition, ment of one receives In to five who or money signing application, compels a recall induces or person application, signs person’s another to another signs name to the the prescribed punishments or his or her name more than once to guilty legislature Thus, of a misdemeanor.24 has allegations.25
that should deter false provides immunity allegations 3. OCGA 51-5-8 in absolute pleadings: court charges, allegations, regular
All in averments contained pleadings competent jurisdiction, filed a court of which pertinent sought, are and material to the relief whether privileged. not, sufficient to obtain it or However charges, allegations, false and malicious such and aver- be, ments shall not be deemed libelous. appellate
The decisions in this state have not limited this absolute (Black, J., concurring). New York Times Co. v. 376 U. S. Enterprises City/County Auth., Hospital Cox v. Carroll (b) (1) (E) (i). (b) (1) (E) (ii). 24 OCGA § 21-4-20. generally Piper Willhite, Privileges Liability: M. Defamation Law: from Distin guishing Quasi-judicial Proceedings Proceedings Preliminary from Are Which to Judicial (1994) Hearings, 541, 552-556, (proposing privilege 47 Okla. L. Rev. an absolute quasi-judicial proceedings provides when communication is made under oath because “oath statements”). safeguard potentially defamatory from false and pleadings, privilege rather have extended it to to formal court but quasi-judicial pro- allegations in official documents allegations applied protect ceedings.26 Thus, the has been filings protective prepared counsel, and with affidavits, orders in the state employment agency.27 quasi-judicial proceedings, parties in other
Like immu- lead recall efforts are entitled to absolute the individuals who nity under oath in recall for factual made *6 merely process challenged superior is not that are court. The majority opinion political procedure, In characterizes it. its as the by judicial stages, process review. the recall is dominated initial Before leaders of recall petitions, efforts even circulate recall legal sufficiency application. Thus, of their court must rule on the ultimately falsity of the alle- the voters determine the truth or while ability gations make that decision set out in the result, the recall is both subject is controlled political the courts. As judicial in nature: recall elected officials voters judicial scrutiny.28 at Given that the courts are involved to close beginning applica- process, allegations in
of the recall the recall subject oath, to sub- tions are made under and the persons are and prepare appli- review, stantive cations who immunity
are entitled to absolute under OCGA 51-5-8. January 26, 1998 Decided February 23,1998. Reconsideration denied Waycaster, Waycaster, Dean, Jr., & R. Leslie Johnson Jef- frey appellants. Dean, for J. Wiggins, appellee.
Wiggins Firm, O. for Law John Amy Bird, Graves, Kent, Daniel A. R. Wolver- Alston & Judson Manheimer, Weber,Jr., ton, R. amici curiae. Hollie G. Gerald Goodson, (1997); App. Stepler, Rivers v. See Williams v. 227 Ga. 843) (1988) ((373 hearing (testimony presided App. at FCC over 188 Ga. judge). administrative law 914) (1896) (affidavits Key, Conley made in a SE (affida 477) (1987) ¡Print-Atlanta, App. proceeding); Watkins v. Laser warrant); Stepler, App. (protective support at 595 order of arrest Williams v. vit Airlines, action); judge by attorney custody prepared Land v. Delta in child 188) (1978) Security Agency (employer’s Employment and from statements to Labor). Georgia Department Mack, Proposal Legislative The Use and Abuse of Recall: A See Elizabeth E. Reform, 617, 632, Recall 67 Neb. L. Rev.