*1 Freder- Malik Abdullah name of J. those violations. practice persons law hereby entitled from the rolls of is removed ick Georgia. Bar duties under reminded ofhis Frederick is in the State of (c). Rule 4-219 the Justices concur.
Disbarred. All 25, 2004.
Decided October Chap- Bar, III, K. Gene Counsel State P. General Smith William Georgia. Bar, for State Bar of man, State General Counsel Assistant et al. v. COX. O’KELLEY S05A0236.
(604 SE2d CARLEY, Justice. Assembly approved Reso- Senate 2004, the
In March of
General
this state at the
595,
to the voters of
which submits
lution
year proposal to amend
2 of this
a
held on November
election to be
by adding
Georgia
new Section IV.
a
the 1983
Constitution
Article I of
complaint
Appellants
September
a
in the
16, 2004,
herein filed
On
Superior
enjoin Appellee
County seeking
from
of Fulton
Court
putting
2, 2004, General
on the November
September 29, 2004,
court denied
the trial
Election Ballot. On
appeal
complaint.
injunctive
The notice of
dismissed the
relief and
briefing
expedited
September 30,
schedule
2004. We
filed on
was
presented
argument
19,
The issue
on October
2004.
heard oral
and
approved
appeal
amendment,
if
is not whether
this
upon
attack based
electorate,
withstand a constitutional
can itself
any
“single subject”
X,
I,
II or
other
rule ofArt.
Sec. Par.
the so-called
Compare
Georgia
provision
II
Goldrush
of 1983.
of the
Constitution
347) (1997);
(2) (a) (482
City
SE2d
Marietta,
(3) (198
The
Burson, Carter v.
only
yet
remains
held,
the amendment thus
to be
and
election has
judi-
question
proposal.
raised
this case whether
The sole
ciary
interfere in the constitutional
is authorized to
approval
expressing
process,
prevent
their
the voters from
representatives,
proposal
disapproval
their elected
Assembly,
deter-
have
each house of the General
vote of
two-thirds
Dorsey,
issue,
this
Gaskins
to them. On
mined should be submitted
controlling,
applicable,
433) (1920),
tutionality legislation, present simply but at there is no subject which can be the of a constitutional attack. All that does exist Assembly proposing is a resolution General that the *2 Constitution be amended so as to add a new Section toIV Article I.
Considering steps necessarily taken in the course of legislation proposed and submission of the amendment to people, an amendment to the constitution is in its stages formative until the electorate of the State have cast their ballots thereon in a election. While amend- progres- ment inis such formative state in the course of proposal sion from the election and ratifica- analogous ordinary legislation by tion, it is the General Assembly, progres- which is in its formative state or state of sion from the time of the introduction of a bill in the legislature finally passed by requisite until it is consti- signature tutional and has received the of the judicial power by Governor. The exerted, will not be writ of stay otherwise, error or the course of it while is process applies ordinary leg- in of enactment. This both to analogous islation and the course of an amendment to the constitution from the time of the introduction of the act proposing the amendment until the electors have acted. “It power judiciary by would be a stretch of in the to restrain its process, by final, mesne or a law enacted the General As- sembly, operative in a formative state and it before became by people thereby, the vote of the to be affected which vote validity, alone could consummate its under the terms of the act [Cits.] itself.” Dorsey, supra
Gaskins v.
at 639-640.
the amendment in
question certainly
challenged
can be
in the event that it is “enacted”
approval by
supra.
virtue of
Burson,
voters. See Carter v.
judiciary
jurisdiction
any
However, the
does not have
to block further
proposed
stage
consideration of the
amendment at this formative
legislative process.
Dorsey, supra. Compare
Gaskins v.
Mead v.
99) (2004) (post-election challenge
Sheffield,
Reliance on
It will be [Cheney] Dorsey, supra Gaskins v. the case of between might [Cheney] case, it while in the The election case. Assembly, had in action the General the basis of become legislative way enactment.... become a no Cheney, supra Cheney Ragan, Gaskins, did Thus, unlike not at 743. powers. separation principle In its implicate constitutional enjoin refusing very the election as to order well-reasoned noted amendment, trial court in this case constitutional follows: as judicial every intervention cited . . . where election case process upheld, was com- authorized or
was plete. illegality arose from which the or ordinance law fact, A was, in a law. passed upon Until the voters. until
does not become law speculative. entirely It can have no time, its effects are irregularity any fails, until ratified. If detrimental effect impropriety is moot. An unsuc- in the amendment any unsuccess- *3 no different than other amendment is cessful upon proposed legislation. and If the amendment is voted ful passes, through post may challenged election mea- it be in existence But, there is a law or amendment until sures. may nothing upon to act and not [c] the ourts have legislative process. the . . . Insofar as in the intervene validity declaratory ruling of the on the a Plaintiffs seek [judiciary] proposed no to the has amendment questions declaratory judgment in the abstract. [s] on issue votes, whether the General time as the electorate Until such ripe Assembly properly for resolution is not a matter acted by the courts. they argument fallacy Appellants’ is their insistence that
The proposed participate legal right in an election wherein a not to have a judicial scrutiny may in the not withstand amendment constitutional rights passed. However, are limited to those available their event is legisla- opposed proposed any to other citizen of this state who to pro- campaign against They enactment of the to tion. are entitled they they effort, posed and, unsuccessful in that if are amendment any arguably constitutionality bring challenge may meri- on to its a right the however, have no to invoke time, basis. At this torious judiciary power of the enjoin adoption enactment of or of a proposed amendment, and designated
constitutional when state offi- proposed determine cials how constitutional amendment voters, submission, be submitted being will such process, be enjoined. will not Sanders, Wilson (1) (151 (1966). concur, Hunstein, J., Judgment All the except Justices affirmed. Sears, J., Benham, J., specially,
who concurs and P. dissent. and who HUNSTEIN, Justice, concurring specially. proposed
Contending that at issue in this case Georgia violates the being Constitution’s Rule and is presented through affirmatively to the voters misleading ballot lan- guage, appellants ask this Court to overrule trial court’s refusal enjoin appellee placing from on proposed amendment November ballot. Relying “general rule” that courts of elections, will not equity interfere in matters of affirms majority court, asserting the trial any judiciary “the does not have jurisdiction to block of further consideration amend- (Emphasis ment.” supplied.) Majority p. 573. dissent Opinion, recognize would an to the rule in exception those rare cases may where be damaged by “entering voting citizens booth being confronted with a ballot that proposes amending measure multiple ways,” the constitution in (footnote omitted), Dissenting p. Opinion, thus would remand the case to the court to trial determine whether violates the Rule. I agree with the principle
While separation powers limits the judiciary’s involvement in matters elections, Georgia law recognizes exceptions case Cheney Ragan, enjoin rule that courts of will not equity an election. “One these where exceptions rights taxpayers the constitutional citizens and are to be sought invaded make an attempt inapplicable unconstitutional *4 Marbut v. law operative through the means of an election. [Cits.]” Hollingshead, (1931). 538 cited The cases Marbut the Court in support ruling principle its were based on the confusion, bring subject “that such election about and would citizens taxpayers damages, to and cause a of suits.” Id. also multiplicity See Dutton, Bergman under 101) (1948) (“ ‘if law, of an guise the election which is unauthorized the really person citizen property imperiled, equity ”). the is will interfere’ I realize that none of the cases that an recognize exception enjoin proposed attempt general a constitu- to involved an rule have jurisdiction election over Court has But this tional amendment. (2), thus we have the VI, VI, II cases, Sec. Par. Art. justice.” complete jurisdiction equity OCGA§ 23-1-7. “to do under our purely exception general] say to be seems rule is without [the that “To gravity Cheney, supra of a arbitrary.” the while at 741. proposing Constitution to our State an amendment ballot measure weigh necessarily in whether intervention the decision on must equity agree required, an that such the I cannot with jurisdiction. outside our intervention is judiciary position principle agree that the the dissent’s
I in with involving proposed may enjoin amend- election proposal very the the violates where in those rare situations ment appropriate light injunction Subject Single Rule. An process, consequences as discussed the democratic election to serious presented by proposal are with a dissent, voters that are created when the particular Nevertheless, I constitutional flaw. with join in which the of the manner the dissent because cannot with dispose us. of the case before dissent would proposed the ballot for the here is on amendment at issue The voting general already begun; has 2004. Advanced scheduled November election polls open precinct the will in less than one week constitutionality proposed will be cast. Yet the final votes enjoin appellants been addressed. to has never seek amendment appellants’ complaint did not reach heard The trial court that proposed amendment violates issue whether Rule, make that initial determination. it for this Court to nor is proposes trial court with direction remand the case to the dissent challenge. appellants’ But as matters stand that it reach the merits left before the November now, there is not sufficient time arguments parties present and the trial court their election for the upon law. It difficult issue of constitutional and rule this to research would legislative, — government three branches of our be a disservice all proposed passed amendment; executive, present proposed obligation amendment on the which has judiciary, at election; and the both ballot for the November constitutionality appellate levels, assess the which must the trial and — matter be resolved to insist that this importantly, it be a disservice to Most would in less than one week. right to cast their vote for or have the the citizens of who currently against that has not on the ballot by any in this State. court declared unconstitutional been damage agree do sustain when the the dissent that voters I with measure that violates to vote for a ballot are called necessarily must suffer that the democratic Rule and *5 as a result. But voters and the democratic also suffer when compel complex time constraints the swift resolution of constitu- rulings only tional issues. Such rushed can serve to undermine the public’s legitimacy accuracy judicial process. faith in the of the present
Therefore, under the case, circumstances in this where legal proposed there has been no determination that the amendment Single Subject Rule, violates the I believe better serves the law and Georgia the citizens of to allow the amendment to remain on November election ballot. Should the amend- approved by majority Georgia ment be 2, ofthe voters of on November any damage may alleged the voters have sustained violation may by post-election of the Rule be ameliorated judicial constitutionality. review of the amendment’s It is for this join majority’s opinion judgment only. reason that I in Presiding dissenting. Justice, SEARS, Georgia protects right Constitution the individual’s to vote by prohibiting seeking as his conscience dictates the state from to process. prohibitions influence the electoral These constitutional are republic; impossible essential to our democratic them, without it is represent expression peo- ensure that election results a true ple’s among prohibition against will. Chief these is the ballot mea- multiple ways. sures that would amend our Constitution in Such protect Georgia impermissible measures are intended to “tying arrangements” voters from that would amend the state constitution Today, majority stealth. of this Court holds that the courts of this power complaints state have no to hear the ofcitizens who assert multiple ways. a ballot measure seeks to amend the constitution in doing, majority duty protect Georgia so fails its voters from coercion and fraud. Because I cannot decision, countenance such a I must dissent. Georgia approved
In March
House and Senate
Senate
proposes amending
Georgia
Resolution
Constitution
(“the Proposed Amendment”).
approved by
If
voters in the
Proposed
election, the
Amendment will add a new Section IV to
Appellants
enjoin
Article I of the Constitution.
filed suit to
arguing (among
things)
Proposed
election,
other
that the
Amend-
Paragraph
Georgia
X,
ment violates
I,
Article
Section
II of the
(“the Single Subject Rule”). Appellee
Constitution
filed a motion to
granted
ground
dismiss, which the trial court
on the sole
that Gaskins
relief until after the
Dorsey1 deprived
grant any
it of
ratify
Proposed
electorate votes on whether to
Amendment. As
A subject distinct and and it has at least two to more than one relates germane separate purposes to each other.3 are not which Subject purpose Single clear: it is intended to Rule’s prevent the Constitution in that seek to amend ballot initiatives scope single multiple ways measure. Faced with such of a within subjects different measure, confronted with several voters are points they may yet opposing view,but for hold sincere about which only precedent they may clear, makes cast one vote. As our which placing Georgia’s voters in that not countenance Constitution will dilemma. support compelled, in to a measure
No
should be
order
voter
wholly
one
favors,
he
to vote also for a
different
which
his
proposition
against
judgment disapproves, or,
in order to vote
against
defeat, to
also
which he desires to
vote
judg-
approval of his
commends itself to the
the one which
compelled,
all,
if he votes at
there is
ment. When he
something
thus
closely
ballot is cast.4
akin to coercion when his
every proposed
beyond
that
it is
refute
presented
own,
be
to the voters on its
to our Constitution must
“
merits,
‘without, on the one
or fail on its own
must either succeed
perhaps
receiving any
more
hand,
popular
adventitious aid from another and
carry
having
hand,
or,
the burden
on the other
[measure],
”5
popular
supporting
In this
meritorious and
measure.’
a less
imposition
operates
prevent
regard,
or
Rule
“to
prevent
public,
choice, and to
to afford voters freedom of
deceit of
—
‘jockeying’
‘hodge-podge legislation,’
‘logrolling,’
is,
Const.,
X,
I,
Art.
Sec. Par. II.
Law,
Subject,
Embracing
34.
Than One
16 AmJur2d Constitutional
§
Amendments
More
City
Burson,
(1973), quoting
Rea
230 Ga.
518-519
See Carter
Lafayette,
4 Carter,
Rea,
quoting
This Court has Rule to: requirement (1) general propositions may or more two not be single (2) requirement measure; combined in a ballot single-subject legislation.7 Thus, have held that a we ballot may approve improving measure not ask voters bonds both for repairing infrastructure, schools and for since voters who favor school improvement approve repairs, would be forced to also infrastructure support repairs.8 Combining even if separate subjects did not such these two “contrary
in one measure would be freedom [the] expression voters, of choice on the and the fair and free public judgment, prevail which should in all elections.” Elections permitted by on such measures “should not be the courts.”10 Notably, adversely impacts a violation ofthe Rule Georgia’s regardless voters of whether the ballot measure at issue instance, succeeds or fails. either those voters torn who are divergent opinions regarding subjects between various contained multiple-subject amendment measure will encounter the unconsti- tutionally being coercive dilemma of forced to choose between their deeply-held regarding subject equally convictions one and their regarding subjects sincere views one or more other contained in the *7 proposal. very against Subject Single This is the evil which the Rule is aimed. Subject Single protect
Furthermore,
the
Rule serves to
the
integrity
orderly
of both our State Constitution and the
democratic
processes
by the
set forth
Constitution for its own amendment. The
requires
permitted
Rule
that
be
un-
voters
to cast votes that are
by
“tying arrange-
tainted
the coercive effects of unconstitutional
among
subjects
ments”
several different
within a
amendment
appearing
separate
questions
measure
on a ballot.
When
distinct
submitting
measure,
are combined into one ballot
the method of
patently
yet,
measure to
it creates
voters is
unconstitutional. Worse
palpable
expression
people
risk
true
that “no
of will of the
can
6
Law,
Embracing
Subject,
Amendments
More Than One
16AmJur2d Constitutional
34.§
7
Carter,
519; Rea,
777;
Clark,
313,
(71
See
9 Id. 10Id.
580 process.11 the election through be obtained” controlled that this case is by holding errs Clearly, 2. Gaskins v. the question never addressed This Court has Dorsey.12 Single relief is available for violations pre-election of whether approval of a ballot Assembly’s due to the General Subject Rule As a multi-subject constitutional amendment.13 proposing measure rule, attempt to interfere with the we will not our Constitution. function, amending the context of even within Dorsey, Gaskins v. jurisdiction have no generally we held that courts validity of a to consider and the language ballot legislature approves the time the
between
During
of a
vote.
that
proclaims
popular
the results
Secretary of State
the Gaskins
reasons,
in its
interval,
decision
an amendment
still
yet signed
that
is not
or
analogous
stages,
formative
Governor,
yet
to the amendment
is not
challenge
and a
vetoed
if
in this case
appellants
is clear
ripe
review.14
substance,
Amendment’s
challenge
Proposed
seeking
were
violate
application
principles
its
would
alleging (for example)
Gaskins
preclude
decision would
equal protection,
due
Amendment
judicial
Proposed
approved
review until after the
was
and became law.
electorate
Gaskins, however,
scrutiny
does not withstand
reasoning
ballot
initia-
against
argument
that a constitutional
explained
Rule. As
in Division
our
Single
tive violates
designed
protect
Rule is
precedent
is clear that
entering
voting
being
from
booth and
con-
Georgia’s citizens
the constitu-
proposes amending
fronted with a ballot measure that
amendment mea-
multiple ways.15
multiple-subject
tion in
When a
ballot,
participate
the electorate is forced to
in a
appears
sure
on the
11Rea,
This distinction has been courts of “Generally, pre-election challenges other states. to the substantive validity ripe of referendum measures are not for pre-election challenges court, determination while validity form or facial constitutional are state’s of referendum measures ripe judicial scrutiny.”17 recently As stated another
appellate
court:
eferring
[D]
[of
measure]
review a ballot
until after an elec-
primarily applies
challenge
tion
when the
is to the substance
preclude
rule, however,
of the measure. The
pre-election
does not
challenge
review when the
is based
proposal
provision governing
a claim the
violates a
proposal
the manner or form in which the
must be
“
presence
considered
.
.
‘[T]he
voters.
.
of an
Notre Dame L. Rev.
2004).
[17]
City
Gordon &
Memphis Shelby County
Magleby,
315-316
Pre-Election Judicial Review Initiatives and
(1989).
Elections
Comm.,
invalid on the same propositions numerous valid money from the others, frustrate some voters and ballot. It will confuse invalid, coming the measure ultimate decision an measure, the tends to in favor of the voters have voted after procedure.’ ”... use of the initiative legitimate the denigrate by post-election cured a defect could not be Such of to determine possible relief because it is not approved been changes would have the separate as had been submitted the voters amendments.18 review to permit pre-election states also
A
number of other
large
initiatives,
including allegations
in ballot
procedural
address
defects
in a
measure.19
subjects
are contained
multiple
for a number of reasons.
persuasive
these cases is
logic
of
whether
the ballot
First,
dispute
concerning
this
juncture,
at
specific.
Rule is concrete and
Single Subject
language violates
by waiting until after the
improved
The record in this case will not be
Furthermore,
appellants’ complaint.
merits of
election to consider the
usurp
legislative
not
appellants’
consideration
of
claim will
function,
enactment of Senate Resolution
Assembly’s
as the General
dispute
at issue in this
complete;
is final and
595
language
and related ballot
has
authorizing
nothing
legislature
there is
left for the
to do.
this
been enacted and
Rule is in the Constitution
the fact that
regard,
very significant.
rules is
Because
Assembly’s
rather
than the General
Constitution,
readily by
of our
it should be invoked
part
the Rule is
intrude
courts,
doing
so
as
so does not
long
function.20
18
222,
Open Primary
Shelley,
App.4th
(2004) (discuss
v.
121 Cal.
228
for
Californians
Jones,
(Cal. 1999)) (emphasis supplied).
ing
quoting
P2d 1089
Senate
v.
988
of California
See
Initiative 801, City Memphis Shelby Opponents, (S.C. 1992); Expressway 415 SE2d Coalition County Council, Comm., City (Utah 1961); supra; 363 P2d Elections Dixon Provo Seattle, (Wash. 1980); City Bldg. Burnell v. & Constr. Trades Council v. 620 P2d Seattle (W. 2001). Morgantown, Va. 558 SE2d 313-314 Rudd, Subject, (1957). 42 Minn. L. Rev. 389 See No Law Shall Embrace More Than One
Moreover, the factual controversy over whether the General Assembly complied with procedural requirements of the Constitution when enacting Senate Resolution 595 must be deter- mined before the election because it is necessary to assess whether the General Assembly properly invoked the electoral process with regard to Resolution 595.21 If the General acted Assembly improperly by authorizing a multiple-subject amendment proposal, then it acted beyond scope of its power and any related enact- ments would be facially invalid.
Finally, and most importantly, if the Single Subject Rule has in fact been violated and permitted forward, the election is go *10 injured electorate will be when confronted with the unconstitutional dilemma of a multiple-subject amendment measure on their ballots. This, above, explained as is altogether inconsistent the precepts with of our Georgia Constitution and the only way protect voters from this unconstitutional harm is with pre-election relief.
Accordingly, appellants’ claim that the language approved by the General in Assembly Senate Resolution 595 violates Subject Rule ripe for review at this time and that our courts have jurisdiction to consider the claim. It follows that the trial court erred by dismissing appellants’ complaint.
3. “This pass court will never upon the constitutionality of an act Assembly General it clearly appears unless in the record that point directly was and properly made in the court below and distinctly passed on the trial judge.”22 The record in this matter shows that the trial court did not rule upon whether the Proposed Amendment violated the Single Subject Rule, as set out in our State Constitution. It follows that this matter should be remanded to the trial court for such ruling, and the majority by holding errs otherwise. 4. Senate Resolution 595 many concerns issues about which — our citizens have strong personal views but those issues are in no way part of the in dispute appeal. this appeal This is concerned solely procedures with the followed the legislature in enacting Resolu- tion 595.1 question whether this distinction is lost on the majority. passionate public
Times of
frequently
debate
require
judi-
ciary’s steadying influence in order to ensure adherence to constitutionafly-
prescribed processes
procedures.
especially
This is
true with
regard
procedures
for
our
amending
state constitution and the
protections
constitutional
guaranteed
to the voters of this state.
Today, majority of this Court fails to
uphold
prohibition against
the legislature’s
enactment of ballot measures
314; City Memphis,
See
I authorized to state am dissent. 2004. October
Decided Stephenson, Jeffrey Jr., Swart, Bird, J. Gerald & John E. Alston appellants. Littrell, Weber,Jr., Senterfitt, L. Jack H. R. Elizabeth Attorney General, Ritter, Baker, E. Assistant Thurbert E. Stefan appellee. Attorney General, for Gregory, Clark, Clark, Arnall, F. Golden & Scott Jewett & Robin Kilpatrick Stockton, Alexander, Titshaw, Miles J. Alexander S. C. Clay, Tyler, Warner, amici curiae. Michael W. Jill THE STATE.
S04A0958. WALLACEv. Chief Justice. Fletcher, appeal appearance In the earlier This is the second of this case. *11 appeal, for malice this Court reversed Jermeal Wallace’s conviction burden-shifting jury charges murder unconstitutional on because of re-sentencing. intent The Court remanded for re-trial or and malice.1 prison remand, to life in On the trial court sentenced Wallace contending felony appeals, murder. that the unconsti- Wallace now felony jury charge tutional on intent also affected the murder count. jury charge felony Because the on intent did not affect murder count, we affirm. proceedings fully in the
The evidence and in this case are set out prior appeal. was convicted of malice murder and two counts Wallace felony murder for the victim. After this Court’s death conviction, reversal of the malice murder the trial court sentenced felony murder counts. Wallace to concurrent sentences on both sentencing only proper,2 and, therefore, However, count on one was must be one sentence vacated. State, 579) (2002). SE2d Wallace State, Malcolm v. 371-372