IN THE SUPERIOR COURT OF FULTON COUNTY STATE OF GEORGIA · PDF fileIN THE SUPERIOR COURT OF...

IN THE SUPERIOR COURT OF FULTON COUNTY STATE OF GEORGIA

JOHN CLARK, IVORY KENNETH DIOUS, FRANCYS ) JOHNSON, JR., HENRY C. FICKLIN and DARRYL A. ) MOMON ) ) Petitioners, )

) Civil Action No. v. ) ) NATHAN DEAL, in his Individual and Official ) ____________________ Capacity, as GOVERNOR of the STATE OF GEORGIA, ) AMANDA H. MERCIER; NELS S.D. PETERSON, ) and BRIAN M. RICKMAN ) )

Respondents. )

APPLICATION FOR TEMPORARY RESTRAINING ORDER AND INTERLOCUTORY INJUNCTION

COMES NOW Petitioners, JOHN CLARK, KENNETH DIOUS, FRANCYS

JOHNSON, JR., HENRY C. FICKLIN AND DARRYL A. MOMON, and file this

PETITIONERS’ APPLICATION FOR TEMPORARY RESTRAINING ORDER AND

INTERLOCUTORY INJUNCTION, stating as follows:

1.

On May 6, 2015, the Respondent, Governor NATHAN DEAL, signed into law House

Bill 279 (hereinafter referred to as “HB 279”). (See attached Exhibit “A”).

2. This new law created three (3) new Georgia Court of Appeals judgeships and called for

the new judgeships to be filled by appointment of the Governor. (HB 279 at Sections 1-2 and 1-

2A, Exhibit “A”, attached).

Fulton County Superior Court ***EFILED***BR

Date: 11/16/2015 2:56:05 PMCathelene Robinson, Clerk

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3.

Said bill, having been signed into law, is in conflict with the Georgia Constitution as

adopted in 1983 and is therefore unconstitutional per Art. VI. Sec. VII. Para. I, which provides

for election of Court of Appeals judges by the people of the State of Georgia.

4.

Recently, on October 29, 2015, Respondent, Governor NATHAN DEAL, appointed three

(3) individuals to assume the newly created positions on the Georgia Court of Appeals. (See

Exhibit “B”, attached).

5.

Petitioners, having no adequate remedy at law to prohibit the unconstitutional usurpation

of the right of the people to elect persons to hold the aforementioned judgeships, therefore apply

to this court for a temporary restraining order to restrain and enjoin the Respondent, Governor

NATHAN DEAL, from executing a commission for the newly created seats on the Georgia

Court of Appeals; for a temporary restraining order to prevent him from swearing-in the newly

appointed Court of Appeals court judges; and, from taking any other actions to implement HB

279.

6.

Petitioners have served notice of this APPLICATION FOR TEMPORARY

RESTRAINING ORDER AND INTERLOCUTORY INJUNCTION, as well as having served

the Petitioners’ PETITION FOR DECLARATORY AND INJUNCTIVE RELIEF on the

Respondent, Governor NATHAN DEAL, at his office located at 206 Washington Street, 111

State Capitol, Atlanta, Georgia 30334, by hand delivery.

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7.

Petitioners have also served notice of this APPLICATION FOR TEMPORARY



Respondents, AMANDA H. MERCIER, NELS S.D. PETERSON, and BRIAN M. RICKMAN

personally, as provided by law, and via email to their email address listed in the records of the

State Bar of Georgia membership directory.

8.

Petitioners have served notice of this APPLICATION FOR TEMPORARY



Attorney General of Georgia, Sam Olens, at his office located at 40 Capitol Square, SW Atlanta,

Ga 30334.

WHEREFORE, Petitioners pray for the following relief:

a) That this Court, as soon as is practicable, convene a hearing to inquire into whether

the Respondent should be temporarily restrained and enjoined from taking any further

action to implement House Bill 279, such as by issuing a commission to the aforesaid

three new Court of Appeals appointees or by administering the oath of office by

swearing them into office;

b) That this Court issue a Rule Nisi setting a hearing, within ten (10) days, as to why the

prayers of this Application should not be granted;

c) That this Court issue an Interlocutory Injunction enjoining Respondent, Governor

NATHAN DEAL from taking any further action to implement House Bill 279, such

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as by issuing a commission to the aforesaid three new Court of Appeals appointees or

by swearing them into office; and,

d) For such other and further relief as this court deems necessary and proper.

This 16th day of November, 2015.

Respectfully Submitted WAYNE B. KENDALL, P.C.

/s/Wayne B. Kendall Wayne B. Kendall

Attorney for Petitioners Georgia Bar No. 414076

155 Bradford Square Suite B Fayetteville, GA 30215 (770)778-8810 (770)716-2439 (fax)

IN THE SUPERIOR COURT OF FULTON COUNTY STATE OF GEORGIA JOHN CLARK, IVORY KENNETH DIOUS, FRANCYS ) JOHNSON, JR., HENRY C. FICKLIN and DARRYL A. ) MOMON ) ) Petitioners, )


Respondents. ) PETITIONERS’ BRIEF IN SUPPORT OF

APPLICATION FOR TEMPORARY RESTRAINING ORDER AND INTERLOCUTORY INJUNCTION

COMES NOW Petitioners, JOHN CLARK, KENNETH DIOUS, FRANCYS

JOHNSON, JR., HENRY C. FICKLIN AND DARRYL A. MOMON and file this

PETITIONERS’ BRIEF IN SUPPORT OF APPLICATION FOR TEMPORARY

RESTRAINING ORDER AND INTERLOCUTORY INJUNCTION, stating as follows:

I. FACTUAL AND LEGAL BACKGROUND

A. The Court of Appeals

Georgia has two levels of appellate courts, the Georgia Supreme Court and the Georgia

Court of Appeals. Court of Appeals judges are elected statewide on a nonpartisan basis for six-

year terms. Candidates for a judgeship on the court of appeals must have been admitted to

practice law for at least seven years before assuming office.

Under the current 1983 Constitution, the Court of Appeals it is a court of review and

exercises jurisdiction over appeals from superior, state, and juvenile courts in all cases not



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reserved to the Supreme Court of Georgia. These cases include civil claims for damages, child

custody cases, workers' compensation and other administrative law cases, and all criminal cases

other than capital felonies.

B. House Bill 279 – Changes to the Court of Appeals

On May, 6, 2015, Respondent, Governor NATHAN DEAL, signed into law House Bill

279 (hereinafter referred to as “HB 279”). (See attached Exhibit “A”). The bill became effective

upon his signing. Among other things, HB 279 amended two (2) statutory code sections

applicable to the Georgia Court of Appeals. Specifically, HB 279, at Section 1-2, amended code

section 15-3-1 to increase the number of judges authorized to serve on the Georgia Court of

Appeals from twelve (12) to fifteen (15).

Newly enacted HB 279 provides, at Section 1-2A, that code section 15-3-4 is to be

amended to insert a new subsection (b) which provides, in part, that the three (3) newly created

judgeships “shall be appointed by the Governor for a term beginning January 1, 2016, and

continuing through December 31, 2018, and until their successors are elected and qualified.”

In fulfillment of the appointment mandate contained in HB 279, Respondent, Governor

NATHAN DEAL, on October 29, 2015, announced that he had made three appointments to the

newly created Georgia Court Appeals judgeships. (See attached Exhibit “B”). Upon information

and belief, Respondent Deal has already issued, or is planning to issue, commissions to the newly

appointed Georgia Court of Appeals Judges, Amanda H. Mercier, Nels S.D. Peterson, and Brian

M. Rickman, for a term beginning on January 1, 2016.

C. The Georgia Constitution

The State of Georgia Constitution at Art. VI, Sec. VII, Para. I, mandatorily requires that:

“[a]ll Justices of the Supreme Court and the Judges of the Court of Appeals shall be elected on a

nonpartisan basis for a term of six years”.

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There is no provision in the Georgia Constitution which allows newly created judgeships

on the Georgia Court of Appeals to be filled by appointment of the Governor. There is no

provision in the Georgia Constitution which allows a seat not previously vacated by an

incumbent on the Georgia Court of Appeals to be filled by appointment of the Governor.

II. GOVERNOR DEAL DOES NOT HAVE THE CONSTITUTIONAL AUTHORITY TO APPOINT PERSONS TO NEWLY CREATED JUDGESHIPS. A. The Court Of Appeals Was Created By Constitutional Amendment Which

Provided For Election Of The Initial Judges By Popular Vote.

The Court of Appeals was established by a constitutional amendment in 1906. (See

attached Exhibit “C”). The history of the Court of Appeals indicates that when created it was the

intention of the Georgia General Assembly to only allow for the election of judges to the Court

of Appeals. On July 31, 1906, the Georgia General Assembly proposed a bill to submit to the

electorate for an Amendment to the State Constitution, "to provide for the establishment of a

Court of Appeals, and to define its powers and jurisdiction; . . . ." The bill provided that the

initial members of the court would be elected by popular vote. (See attached Exhibit “C”)1. This

proposed constitutional amendment was ratified by popular vote on November 6, 1906, and the

first three judges of the Court of Appeals were chosen by election of the voting electorate. What

is significant, however, is that the original proposal submitted to the Georgia General Assembly,

by the Georgia Bar, called for the three initial judges to be appointed by the Governor. This

proposal was changed in the House of Representatives to require the initial three judges to be

elected by popular vote.2

1 Sec. 3 of the bill provided that, after ratification, the Governor was authorized to call for a popular vote of the electorate at which time the three persons receiving the highest number of popular votes would be installed as the initial judges on the Court of Appeals. 2 Georgia Court of Appeals website at: http://www.gaappeals.us/history/index.php (last viewed Nov. 8, 2015).

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As originally submitted in the House of Representatives, the bill to create the Court of

Appeals, originally read, in part, as follows:

"The Court of Appeals shall, until otherwise provided by law, consist of three judges, of whom two shall constitute a quorum. It shall sit at the seat of government and at such other places as may be prescribed by law. The Governor shall, immediately on the taking effect of this amendment, appoint the judges of the Court of Appeals.” 3

1906 Journal of the House of Representatives, Wednesday, July 25, 1906, p. 467.

This version was amended in the House, as proposed by Rep. Talley of Bibb County, to

read that the judges of the Court of Appeals would be elected by the people.4 After further re-

amendment in the Senate, and adoption of the Senate amendments by the House, it was

ultimately passed by both houses of the General Assembly to read:

The Governor shall, immediately on the ratification of this amendment, call an election, to be held on Tuesday after the first Monday in November, Anno Domini nineteen hundred and six, at which the judges of the Court of Appeals shall be elected in the manner in which Justices of the Supreme Court are elected.” 5

1906 Journal of the House of Representatives, Tuesday, July 31, 1906, pp. 581 – 582. The legislative intent of the General Assembly was made clear by this change wherein the

choice of having the new judges selected by appointment of the Governor was rejected over the

preferred method of having them elected by the people. Nine years earlier, in 1897, the

legislature amended the 1877 Constitution to provide that Superior Court Judges were to be

elected by the people. (Ga. L. 1897 p. 16, §§1 and 2). Previously, it had provided that Superior

3 See Exhibit “I”, attached. 4 See Exhibit “I’, at p. 472. 5 See Exhibits “J” and Exhibit “C”, attached.

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Court Judges were to be elected by the General Assembly. (1877 Constitution, Art. VI, Sec. III,

Para. II).

In this manner, the decision of the legislature, in 1906, to provide that Court of Appeals

judges were to be elected by a vote of the people merely continued a trend in the tendency of the

General Assembly to provide for the selection of judges by popular vote of the electorate. This

practice continued as the court evolved over the next 90 years.

B. The First Nine Seats on the Court of Appeals Were Filled Initially By Election of the People

In 1916, ten (10) years after establishment of the Court of Appeals, the legislature

provided for amendment of the constitution to add three (3) additional seats on the Georgia Court

of Appeals. Again, the amendment which was passed by both houses of the General Assembly

on August 19, 1916, called for the three (3) new judges to be selected by popular vote in the

General Election occurring in November of that year. (See Exhibit “D”, Ga. L. 1916, p. 56, §2).

The 1916 constitutional amendment also provided that from thenceforth the number of Court of

Appeals judges could be increased by legislation passed by the General Assembly.

In 1960, by act of the General Assembly, the number of judges was increased from six to

seven. (See Exhibit “E”, Ga. L. 1960 p. 158, §1). In the following year, the General Assembly

by statute added two more judges. (See Exhibit “F”, Ga. L. 1961 p. 140, §1). The seventh, eighth

and ninth judgeships on the Court of Appeals, as well and the previous six were all filled initially

by election of the voters.

In 1996, the General Assembly passed legislation increasing the number of Court of

Appeals Court judgeships to ten (10) total. (See Exhibit “G”, Ga. L. 1996, p. 405, § 2). For the

first time in Georgia Court of Appeals history a person was appointed to fill a newly created

judgeship on the court. On March 27, 1999, the General Assembly added two (2) additional

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judgeships to the Court of Appeals bringing the total number to its present total of twelve (12)

judges. Like the previous legislation of 1996 it too provided for initial gubernatorial appointment

of persons to these seats on the court. (See Exhibit “H”, Ga. L. 1999, p. 10, § 3).

For the first 90 years of its now one hundred and nine year history, newly created

judgeships on the Court of Appeals were filled by election of the people thus establishing clear

historical and foundational precedent that the voice of the people was to reign supreme in the

selection of Court of Appeals judges. Nine (9) of the current 12 positions have been filled by

election of the state’s voters. Only in the last 19 years, since 1996, has the General Assembly

authorized initial appointment by the Governor for the last three (3) out of the twelve (12)

existing seats. Any contrary authorizations by the General Assembly are repugnant to the current

1983 constitution as well as previous constitutions of this state.

III. THE GEORGIA GENERAL ASSEMBLY DOES NOT HAVE THE AUTHORITY TO GRANT TO THE GOVERNOR THE POWER TO APPOINT PERSONS TO NEWLY CREATED JUDGESHIPS

The text of the current state constitution does not lend itself to an interpretation that the

Governor is granted the authority to appoint persons to newly created judgeships. Nor is there

any textual support for the proposition that the General Assembly can determine the method by

which newly created judgeships can be filled, as the Constitution itself states the manner in

which such a judgeship is to be filled, i.e. by election of the people. It explicitly states that

Judges of the Court of Appeals shall be elected on a nonpartisan basis for a term of six years.

Art. VI, Sec. VII, Para I.

It does, however, provide that the Governor has the power to appoint persons to vacancies

in certain circumstances. These circumstances are circumscribed by the Georgia Constitution to

only allow for appointments in case of "death, resignation, or otherwise", for the

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"unexpired term" of a person whose vacancy is being filled. Art. V, Sec. II, Para. VIII. Also, Art.

VI, Sec. VII, Para. III, contained in the judicial article, simply states that a vacant judgeship

position shall be filled by appointment of the Governor. No statute or constitutional provision

provides that newly created judgeships are vacant in the constitutional sense, ab initio.

Prior to HB 279, O.C.G.A. §15-3-4 provided, in relevant part, as follows: The Judges of

the Court of Appeals shall be elected at the general primary in each even-numbered year in the

manner in which Justices of the Supreme Court are elected.6 This code section merely

implements the Constitution at Art. VI, Sec. VII, Para. I, which states:

Paragraph I. Election; term of office. All superior court and state court judges shall be elected on a nonpartisan basis for a term of four years. All Justices of the Supreme Court and the Judges of the Court of Appeals shall be elected on a nonpartisan basis for a term of six years. The terms of all judges thus elected shall begin the next January 1 after their election. All other judges shall continue to be selected in the manner and for the term they were selected on June 30, 1983, until otherwise provided by local law. HB 279, at Section 1-2A, defies the Constitution in so much as it adds an additional

subsection (b), to be codified as O.C.G.A. 15-3-4(b), authorizing the Governor to appoint

6 The full text of that code section, as amended in 2014, provides:

The Judges of the Court of Appeals shall be elected at the general primary in each even-numbered year in the manner in which Justices of the Supreme Court are elected. The election of the Judges shall be as follows: (1) Successors to the Judges serving in judgeships which existed prior to 1999 shall be elected as follows: (A) Successors to any Judges whose terms expired at the end of 1998 shall be elected at the general

election in 2004 and each sixth year thereafter; (B) Successors to any Judges whose terms expire at the end of 2000 shall be elected at the general

election in 2000 and each sixth year thereafter; (C) Successors to any Judges whose terms expire at the end of 2002 shall be elected at the general

election in 2002 and each sixth year thereafter; and (D) Successors to any Judges whose terms expire at the end of 2004 shall be elected at the general

election in 2004 and each sixth year thereafter; and (2) Successors to the two Judges serving in the judgeships created in 1999 shall be elected at the 2000 general election and each sixth year thereafter.

The terms of the Judges shall begin on January 1 following their election and, except as provided above,

shall continue for six years and until their successors are qualified. They shall be commissioned accordingly by the Governor.

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persons to the Court of Appeals to fill the newly minted positions created in the bill, instead of

providing that these persons be elected to the position by the voters.7 Subsection (b), as enacted,

is repugnant to the 1983 Constitution of Georgia and is therefore unconstitutional.

IV. CONCLUSION

For all of the above stated reasons, HB 279, at Section 1-2A, calling for the Governor to

appoint persons to the newly created seats on the Georgia Court of Appeals, is unconstitutional

and in conflict with the mandate of the Georgia Constitution that Judges of the Court of Appeals

shall be elected in a nonpartisan election. Further, the historical precedent underlying the

creation and evolution of the Georgia Court of Appeals indicate that the Constitutions of the

State of Georgia have for the first 90 years of its existence allowed for populating newly created

seats on the Court of Appeals by popular election of the voters.



/s/Wayne B. Kendall Attorney for Petitioners Georgia Bar No. 414076


7 Subsection (b) states: “(b) The additional judgeships created in 2015 shall be appointed by the Governor for a term beginning January 1, 2016, and continuing through December 31, 2018, and until their successors are elected and qualified. Their successors shall be elected in the manner provided by law for the election of Judges of the Court of Appeals at the nonpartisan judicial election in 2018, for a term of six years beginning on January 1, 2019, and until their successors are elected and qualified. Future successors shall be elected at the nonpartisan judicial election each sixth year after such election for terms of six years and until their successors are elected and qualified. They shall take office on the first day of January following the date of the election."



Respondents. )

CERTIFICATE OF ATTORNEY

The undersigned hereby certifies to the Court that he is the attorney of record for the

Petitioners in the above styled action and that this certification is given pursuant to O.C.G.A. 9-

11-65(b). The attorney further certifies that he has hand delivered a copy of the attached

documents to the Respondent, Governor NATHAN DEAL, at his office located at 206

Washington Street, 111 State Capitol, Atlanta, Georgia 30334; and that he has hand delivered a

copy to the Attorney General of the State of Georgia, at his office located at his office located at

40 Capitol Square, SW, Atlanta, Ga 30334.

Further, the below listed attorney certifies that he has emailed a copy to Respondents,

AMANDA H. MERCIER, NELS S.D. PETERSON and BRIAN M. RICKMAN at the email

address listed in the records of the State Bar of Georgia membership directory.

Even if notice had not been given, no notice is necessary in this case as the newly

appointed court of appeals judges will not be able to take office until January 1, 2016.




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Respondents. )

PETITION FOR DECLARATORY JUDGMENT, INJUNCTIVE RELIEF, AND IN THE ALTERNATIVE

FOR WRIT OF QUO WARRANTO COMES NOW Petitioners, JOHN CLARK, KENNETH DIOUS, FRANCYS

JOHNSON, JR., HENRY C. FICKLIN AND DARRYL A. MOMON, above named, and file this

Petition pursuant to O.C.G.A. §9-4-2 et. seq., for a Declaratory Judgment, and pursuant to

O.C.G.A. §9-11-65 et seq. for a temporary restraining order, and interlocutory and perpetual

injunction, to enforce provisions of the Georgia Constitution that require judges for the Georgia

Court of Appeals to be selected by a nonpartisan election of the voters in the State of Georgia, or

in the alternative, for Writ of Quo Warranto pursuant to O.C.G.A. §9-6-60 et seq., by showing

the following:

The Parties.

1.

JOHN CLARK is a lawyer, who is licensed to practice law in the State of Georgia. He



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has been admitted to the practice of law for more than seven years in the State of Georgia. He is

a resident of the State of Georgia and is a registered voter in the State of Georgia. He is

otherwise qualified to stand for election for a seat on the Georgia Court of Appeals. As a lawyer

qualified to seek the office of Court of Appeals judge, Petitioner JOHN CLARK has a special

interest in the office.

2.

IVORY KENNETH DIOUS is a lawyer, who is licensed to practice law in the State of

Georgia. He has been admitted to the practice of law for more than seven years in the State of

Georgia. He is a resident of the State of Georgia and is a registered voter in the State of Georgia.

He is otherwise qualified to stand for election for a seat on the Georgia Court of Appeals. As a

lawyer qualified to seek the office of Court of Appeals judge, Petitioner IVORY KENNETH

DIOUS has a special interest in the office.

3.

HENRY C. FICKLIN is a citizen of the State of Georgia. He is a registered voter and a

taxpayer within the State of Georgia and otherwise has standing to bring this action.

4.

FRANCYS JOHNSON, JR. is a lawyer, who is licensed to practice law in the State of

Georgia. He is a resident of the State of Georgia and is a registered voter and a taxpayer in the

State of Georgia and otherwise has standing to bring this action.

5.

DARRYL A. MOMON is a citizen of the State of Georgia. He is a registered voter and a

taxpayer within the State of Georgia and otherwise has standing to bring this action.

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6.

Respondent NATHAN DEAL is currently the GOVERNOR of the STATE OF

GEORGIA. He is sued in his individual and official capacity and may be served with process

and summons at his office located at 206 Washington Street, 111 State Capitol, Atlanta, Georgia

30334.

7.

AMANDA H. MERCIER, NELS S.D. PETERSON, and BRIAN M. RICKMAN are

individuals who have been appointed by the Respondent, Governor NATHAN DEAL, to hold

the three newly created seats on the Georgia Court of Appeals. They are sued in their individual

capacities.

Jurisdiction and Venue.

8.

Jurisdiction of this case is proper in this Court as the Superior Courts have authority to

exercise the powers of a court of equity. O.C.G.A. §15-6-8(2) and GA Const. Art. VI, Sec. IV,

Para. I.

9.

Venue is proper in Fulton County, the seat of state government. Ga. Dep't of Human

Servs. v. Dougherty Cnty., 330 Ga.App. 581, 768 S.E.2d 771, (2015); Accord, Hoffman v.

Department of Corrections, 218 Ga.App. 363, 460 S.E.2d 882, (1995).

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Factual and Legal Background

10.

On May, 6, 2015, Respondent, NATHAN DEAL, signed into law House Bill 279

(hereinafter referred to as “HB 279”). The bill became effective upon his signing.

11.

Among other things, HB 279 amended various statutory code sections applicable to the

Georgia Court of Appeals.

12.

Specifically, HB 279, at Section 2-1, amended code section 15-3-1 to increase the

number of judges authorized to serve on the Georgia Court of Appeals from twelve (12) to

fifteen (15).

13.

In Section 1-2A, it also provided that code section 15-3-4 was to be amended to insert a

new subsection (b) which provides, in part, that the newly created judgeships “shall be appointed

by the Governor for a term beginning January 1, 2016, and continuing through December 31,

2018, and until their successors are elected and qualified”.

14.

In fulfillment of the appointment mandate contained in HB 279, on October 29, 2015,

Respondent, Governor NATHAN DEAL announced that he had made three appointments to the

newly created Georgia Court Appeals judgeships. (See attached Exhibit “A”).

15.

The State of Georgia Constitution at Art. VI, Sec. VII, Para I, mandatorily requires that:

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All Justices of the Supreme Court and the Judges of the Court of Appeals shall be

elected on a nonpartisan basis for a term of six years.

16.

Upon information and belief, Respondent, Governor NATHAN DEAL has already

issued, or is planning to issue, commissions to the newly appointed Georgia Court of Appeals

judges, AMANDA H. MERCIER, NELS S.D. PETERSON, and BRIAN M. RICKMAN, for a

term beginning on January 16, 2016.

17.

There is no provision in the Georgia Constitution which allows newly created judgeships

on the Georgia Court of Appeals to be filled by appointment of the Governor.

18.

There is no provision in the Georgia Constitution which allows a non-vacant seat on the

Georgia Court of Appeals to be filled by appointment of the Governor.

COUNT ONE

REQUEST FOR DECLARATORY JUDGMENT

19.

Petitioners hereby incorporate by reference paragraphs 1 - 18, as if stated fully herein.

20.

Respondent, Governor NATHAN DEAL, does not have the power under the Georgia

Constitution to appoint persons to fill newly created judgeships on the Georgia Court of Appeals.

Constitutionally, they must be filled in a nonpartisan election by the electorate. 1983

Constitution Art. VI, Sec. VII, Para. I.

6

21.

Under the principle of judicial review, this court must declare Section 1-2A of HB 279,

which grants the Governor the power to appoint persons to the newly created judgeships on the

Georgia Court of Appeals, unconstitutional.

COUNT TWO

REQUEST FOR ISSUANCE OF A TEMPORARY RESTRAINING ORDER INTERLOCUTORY AND A PERPETUAL INJUNCTION

22.

Petitioner hereby incorporates by reference paragraphs 1 - 21, as if stated fully herein.

23.

There is an urgent need for this court to act in restraining the aforementioned judicial

appointees from taking office.

24.

Irreparable harm for which the petitioners have no adequate remedy at law will occur

should the aforementioned judicial appointees be sworn into office, embark upon their duties as

appellate court judges and then it be later determined that their commission by appointment was

unlawful.

25.

Respondent, Governor NATHAN DEAL, should be temporarily restrained and ultimately

perpetually enjoined from appointing persons to fill the newly created positions on the Georgia

Court of Appeals for lack of constitutional authority to do so.

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COUNT THREE

REQUEST FOR WRIT OF QUO WARRANTO

26.

Petitioner hereby incorporates by reference paragraphs 1 - 25, as if stated fully herein.

27.

To the extent the newly appointed Georgia Court of Appeals judges, AMANDA H.

MERCIER, NELS S.D. PETERSON and BRIAN M. RICKMAN have already been

commissioned to hold office, this is a Petition for Writ of Quo Warranto, pursuant to O.C.G.A.

9-6-60, et seq.

28.

Respondent, Governor NATHAN DEAL, having no authority under the Constitution of

the State of Georgia to issue said commissions, the aforesaid newly appointed Court of Appeals

judges have no lawful right to assume said judgeships.

WHEREFORE, Petitioners pray:

a) That this Petition, the attached application for Temporary Restraining Order,

along with Summons and a Rule Nisi be served upon and issued to the

Respondents forthwith setting this matter for a hearing as expeditiously as the

ends of justice require, but not more than ten (10) days from the date of filing this

Petition.

b) That upon a hearing, the Court issue a declaratory judgment declaring that Section

1-2A of HB 279 is unconstitutional;

c) That the court issue a Temporary Restraining Order and an Interlocutory

8

Injunction prohibiting the issuance of any commissions or the swearing in by the

Respondent, Governor, NATHAN DEAL, of the newly created Court of Appeals

judges; and,

d) If necessary, and if the facts so indicate that Respondents AMANDA H.

MERCIER, NELS S.D. PETERSON, and BRIAN M. RICKMAN have already

been commissioned to hold office on the Georgia Court of Appeals that the court

issue a Writ of Quo Warranto; and

e) For such other and further relief as the court deems necessary and proper.





INDEX OF EXHIBITS

EXHIBIT “A” House Bill 279 as Enacted and Signed Into Law by Governor Nathan Deal on May 6, 2015

EXHIBIT “B” Governor Nathan Deal’s Announcement of Three (3)

Appointments to the Georgia Court Of Appeals on October 29, 2015

EXHIBIT “C” Ga. L. 1906, p. 24

EXHIBIT “D” Ga. L. 1916, p. 56

EXHIBIT “E” Ga. L. 1960, p. 158

EXHIBIT “F” Ga. L. 1961, p. 140

EXHIBIT “G” Ga. L. 1996, p. 405

EXHIBIT “H” Ga. L. 1999, p. 10

EXHIBIT “I” 1906 Journal of the House of Representatives, Wednesday, July 25, 1906

EXHIBIT “J” 1906 Journal of the House of Representatives, Tuesday, July

31, 1906

. EXHIBIT "A"

15 HB279/AP

House Bill 279 (AS PASSED HOUSE AND SENA TE)

By: Representatives Powell of the 17151, Abrams of the &9th, Fleming of the 12lst, Oliver of

the 82"ct, Willard of the 51", and others

A BILL TO BE ENTITLED

AN ACT

EXHIBIT"A"

To amend Title 15, Article 2 of Chapter 12 of Title 17, and Code Section 45-7-4 of the

2 Official Code of Georgia Annotated, relating to courts, public defenders, and annual salaries

3 of certain state officials, respectively, so as to provide daily expense allowances to Supreme

4 Court Justices and Court of Appeals Judges in certain circumstances; to increase the number

5 of Court of Appeals Judges; to change provisions relating to a quorum; to provide for the

6 Judges' appointment and election; to change provisions relating to the compensation of

7 superior court judges, district attorneys, circuit public defenders, Supreme Court Justices, and

8 Court of Appeals Judges; to provide for accountability court salary supplements for judicial

9 officers serving in circuits with drug court, mental health court, and veterans court divisions;

1 O to change provisions relating to county salary supplements for superior court judges, district

11 attorneys, and circuit public defenders; to provide for a fourth judge of the superior courts

12 of the Western Judicial Circuit; to provide for the appointment of such additional judge by

13 the Governor; to provide for the election of successors to the judge initially appointed; to

14 prescribe the powers of such judge; to prescribe the compensation, salary, and expense

15 allowance of such judge to be paid by the State of Georgia and the counties comprising said

16 circuit; to provide for the selection of a chief judge; to authorize the judges of such circuit

17 to divide and allocate the work and duties thereof; to provide for the manner of impaneling

18 jurors; to provide for an additional court reporter for such circuit; to authorize the governing

19 authority of the counties that comprise the Western Judicial Circuit to provide facilities,

20 office space, supplies, equipment, and personnel for such judges; to declare inherent

21 authority; to create the Judicial, District Attorney, and Circuit Public Defender Compensation

22 Commission; to provide for the purpose, membership, terms, chairperson, other officers,

23 committees, staffing, and funding for the commission; to provide for meetings and members'

24 expenses; to provide forthe duties, powers, reporting, and responsibilities of the commission;

25 to provide for automatic repeal of the commission; to provide for related matters; to provide

26 for a contingent effective date and effective dates; to repeal conflicting laws; and for other

27 purposes.

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61 (B) Successors to any Judges whose terms expire at the end of2000 shall be elected

62 at the general election in 2000 and each sixth year thereafter;

63 (C) Successors to any Judges whose terms expire at the end of2002 shall be elected

64 at the general election in 2002 and each sixth year thereafter; and

65 (D) Successors to any Judges whose terms expire at the end of2004 shall be elected

66 at the general election in 2004 and each sixth year thereafter; and

67 (2) Successors to the two Judges serving in the judgeships created in 1999 shall be

68 elected at the 2000 general election and each sixth year thereafter.

69 The terms of the Judges shall begin on January 1 following their election and, except as

70 provided above, shall continue for six years and until their successors are qualified. They

71 shall be commissioned accordingly by the Governor.

72 (b) The additional judgeships created in 2015 shall be appointed by the Governor for a

73 tenn beginning January 1. 2016. and continuing through December 31. 20 18. and until their

74 successors are elected and qualified. Their successors shall be elected in the manner

75 provided by law for the election of Judges of the Court of Appeals at the nonpartisan

76 judicial election in 2018. for a tenn of six years beginning on January 1. 2019. and until

77 their successors are elected and qualified. Future successors shall be elected at the

78 nonpartisan judicial election each sixth year after such election for terms of six years and

79 until their successors are elected and qualified. They shall take office on the first day of

80 January following the date of the election."

81 SECTION I-2B.

82 Said title is further amended by adding a new paragraph to subsection (b) of Code Section

83 15-3-5, relating to oath of Judges and compensation, to read as follows:

84 "(3) If a Judge resides 50 miles or more from the judicial building in Atlanta. such Judge

85 shall also receive the same daily expense allowance as members of the General Assembly

86 receive. as set forth in Code Section 28-1-8. for not more than 30 days during each term

87 of court. Such days shall be utilized only when official court business is being

88 conducted. All allowances provided for in this paragraph shall be paid upon the

89 submission of proper vouchers."

90 SECTION 1-3.

91 Said title is further amended by revising subsections (a) and (b) of Code Section 15-6-29,

92 relating to the salary of superior court judges, as follows:

93 "(a) The annual salary of the judges of the superior courts shall be as provided in Code

94 Section 45-7-4 and may be as provided in Code Section 15-6-29.1. The annual salary

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95 provided by Code Section 45-7-4 shall be paid by The Council of Superior Court Judges

96 of Georgia in 12 equal monthly installments.

97 (b) The annual salary so fixed shall be the total compensation to be paid by the state to the

98 superior court judges and shalJ be in lieu of any and all other amounts to be paid from The

99 Council of Superior Court Judges of Georgia, except as provided in Code Sections

100 15-6-29.1. 15-6-30~and 15-6-32."

101 SECTION 1-4.

I 02 Said title is further amended by adding a new Code section to read as follows:

103 6 }5-6-29.1.

104 (a) Whenever a circuit has implemented a drug court division. mental health court

105 division. or veterans court division. then on and after January 1. 2016. the state shall pay

106 each superior court judge in such circuit an annual accountability court supplement of

107 $6.000.00. Such supplement shall be paid from state funds by The Council of Superior

I 08 Court Judges of Georgia in egual monthly installments as regular compensation.

I 09 Cb) When a local law provides for a salary to be paid based on a percentage of. total

110 compensation for. or similar mathematical relationship to a superior court judge's salary.

111 the accountability court salary supplement paid pursuant to this Code section shall not be

112 included in the calculation of compensation to be paid by a county. municipality, or

113 conso.lidated government.

114 (c) Notwithstanding subsection ( c) of Code Section 15-6-29, on and afterJanuary 1. 2016,

115 no county or counties comprising the circuit shall increase an aggregate county salary

116 supplement paid to a superior court judge, if such supplement is $50.000.00 or more.a

117 SECTION 1-5.

118 Said title is further amended by revising Code Section 15-18-10, relating to compensation

119 of district attorneys, as follows:

120 "15-18-10.

121 (a) Each district attorney shall receive an annual salary from state funds as prescribed by

122 law. Such salary shall be paid as provided in Code Section Sections 15-18-10.1 and

123 15-18-19.

124 (b) The county or counties comprising the judicial circuit may supplement the salary of

125 the district attorney in such amount as is or may be authorized by local Act or in such

126 amount as may be determined by the governing authority of such county or counties,

127 whichever is greater.

128 (c) AH fees, fines, fo1feitn1es, costs, and commissions fo1metly allowed disttict attorneys

129 fo1 theit selY ices ll:S district Mtt>me:y 01 as solicitor of any othet comt shali become the

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130 p1opc1ty of the county in which the scniecs of the d:istiiet attorney we1c 1C11dc1ed. The

131 clerk of court shall collect any such fees, fines, forfeitures, costs, and emoluments and

132 remit the same to the county treasury by the fifteenth day of each month.

133 ( d) No district attorney receiving an annual salary under this Code section shall engage in

134 the private practice oflaw.n

135 SECTION 1-6.

136 Said title is further amended by adding a new Code section to read as follows:

137 H15-18-10.1.

138 (a) Whenever a circuit has implemented a drug court division. mental health court

139 division. or veterans court division. then on and after Januazy 1. 2016. the state shall pay

140 the district attorney in such circuit an annual accountability court supplement of$6.000.00.

141 Such supplement shall be paid from state funds by the Prosecuting Attorneys' Council of

142 the State of Georgia in equal monthly installments as regular compensation.

143 Cb) Notwithstanding Code Sections 15-18-14 and 15-18-14.2. the accountability court

144 salary supplement paid pursuant to this Code section shall not be included in any

145 calculation of compensation paid to assistant district attorneys or victim assistance

146 coordinators that is measured as a percentage of a district attorney's salary.

147 (c) When a local law provides for a salazy to be paid based on a percentage of. total

148 compensation for. or similar mathematical relationship to a district attorney's salary. the

149 accountability court salary supplement paid pursuant to this Code section shall not be

150 included in the calculation of compensation to be paid by a county. municipality. or

151 consolidated government.

152 (d) Notwithstanding subsection (b) of Code Section 15-18-10 and Code Section 15-18-19.

153 on or after January 1. 2016. no county or counties comprising the circuit shall increase an

154 aggregate county salary supplement paid to the district attorney or a state-paid position

l 55 appointed pursuant to this article. if such supplement is $50.000.00 or more.H

156 SECTION 1-7.

157 Article 2 of Chapter 12 of Title 17 of the Official Code of Georgia Annotated, relating to

158 public defenders, is amended by revising subsection (a) of Code Section 17-12-25, relating

159 to the salary of the public defender, as follows:

160 n (a) Each circuit public defender shall receive an annual salary of $87 ,593 .58 $99.526. 00,

161 and cost-of-living adjustments may be given by the General Assembly in the General

162 Appropriations Act by a percentage not to exceed the average percentage of the general

163 increase in salary as may from time to time be granted to employees of the executive,

164 judicial, and legislative branches of government; provided, however, that any increase for

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165 such circuit public defender shall not include within-grade step increases for which

166 classified employees as defined by Code Section 45-20-2 are eligible. Any increase

167 granted pursuant to this subsection shall become effective at the same time that funds are

168 made available for the increase for such employees. The Office of Planning and Budget

169 shall calculate the average percentage increase. Each circuit public defender may also be

170 entitled to an accountability court salary supplement as set forth in Code Section

171 17-12-25.1.n

172 SECTION 1-8.

173 Said article is further amended by adding a new Code section to read as follows:

174 *17-12-25.1.

175 Ca) Whenever a circuit has implemented a drug court division. mental health court

176 division. or veterans court division. then on and after January ], 2016. the state shall pay

177 the circuit public defender in such circuit an annual accountability court supplement of

178 $6.000.00. Such supplement shall be paid from state funds by the Georgia Public Defender

179 Standards Council in equal monthly installments as regular compensation.

180 (b) Notwithstanding Code Sections 17-12-27 and 17-12-28. the accountability court salary

181 supplement paid pursuant to this Code section shall not be included in any calculation of

182 compensation paid to assistant circuit public defenders or investigators that is measured as

183 a percentage of a circuit public defender's salary.

184 (c) When a local law provides for a salary to be paid based on a percentage of. total

185 compensation for. or similar mathematical relationship to a circuit public defender's salary.

186 the accountability court salary supplement paid pursuant to this Code section shall not be

187 included in the calculation of compensation to be paid by a county. municipality. or

188 consolidated government.

189 (d) Notwithstanding subsection (bl of Code Section 17-12-25 and Code Section 17-12-30.

190 on and after January 1. 2016. no county or counties comprising the circuit shall increase

191 an aggregate county salary supplement paid to the circuit public defender or a state-paid

192 position appointed pursuant to this article. if such supplement is $50.000.00 or more. 0

193 SECTION 1-9.

194 Code Section 45-7-4 of the Official Code of Georgia Annotated, relating to annual salaries

195 of certain state officials and cost-of-living adjustments, is amended by revising paragraphs

196 (18) through (21) of subsection (a) as follows:

197 n(1 8) Each Justice of the Supreme Court. . . . . . . . . . . . . . . . . . . . . . . . . . 175.600.00

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139,418.00

15

198 ( 19) Each Judge of the Court of Appeals

HB 279/AP

174,500.00

138,556.00

199 (20) Each superior court judge . . ........ . ..... . ............ .. .. 126,265.00

99,862.00

200 Each supCiio1 comt judge shall also receive any supplement paid to such

201 judge by the comity 01 counties of such judge's judicial citcuit as may be

202 piovided fot by law. Each supeii01 court judge shall also receive

203 1ei:tnbmse:ment of travel expenses as p1ovided by law.

204 (21) Each district attorney .... . ........... ... . : . . . . . . . . . . . . . . . . 120.072.00

107,905.00

205 Each disti ict attotney shall also receive any supplement paid to Melt disti iet

206 att0111ey by the county 01 counties of such disti iet attOtney'sjudicial citcuit

207 as may be p1ovided for by lcm. Each district atto1ney shall also 1eceive

208 reirnbttrsement of travel expel'l:ses as provided by hrn."

209 PART II

210 SECTION 2-2.

21 1 Code Section 15-6-2 of the Official Code of Georgia Annotated, relating to the number of

212 judges of superior courts, is amended by revising paragraph (42) as follows:

213 "(42) Western Circuit. ....... ........ ......... . ...................... ~ 1"

214 SECTION 2-2.

215 One additional judge of the superior courts is added to the Western Judicial Circuit, thereby

216 increasing to four the number of judges of said circuit.

217 SECTION 2-3.

218 Saidadditionaljudge shall be appointed by the Governor fora tenn beginning April 1, 2016,

219 and continuing through December 31, 2018, and until his or her successor is elected and

220 qualified. His or her successor shall be elected in the manner provided by law for the

22 1 election of judges of the superior courts of this state at the nonpartisan judicial election in

222 2018, for a term of four years beginning on January 1, 2019, and until his or her successor

223 is elected and qualified. Future successors shall be elected at the nonpartisan judicial

224 election each four years after such election for terms of four years and until their successors

225 are elected and qualified. They shall take office on the first day ofJanuary following the date

226 of the election.

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227 SECTION 2-4.

228 The additional judge of the superior courts of the Western Judicial Circuit shall have and

229 may exercise all powers, duties, dignity, jurisdiction, privileges, and immunities of the

230 present judges of the superior courts of this state. Any of the judges of the Western Judicial

231 Circuit may preside over any cause, whether in their own or in other circuits, and perform

232 any official act as judge thereof, including sitting on appellate courts as provided by law.

233 SECTION 2-5.

234 The qualifications of such additional judge and his or her successors shall be the same as are

23 5 now provided by law for all other superior court judges, and his or her compensation, salary,

236 and expense allowance from the State of Georgia and from the counties comprising the

237 Western Judicial Circuit shall be the same as are now provided by law for the other superior

238 court judges of such circuit. The provisions, if any, enacted for the supplementation by the

239 counties of such circuit of the salary of the judges of the superior courts of the Western

240 Judicial Circuit shall also be applicable to the additional judge provided for by this Act.

241 SECTION 2-6.

242 All writs and processes in the superior courts of the Western Judicial Circuit shall be

243 returnable to the terms of such superior courts as they are now fJXed and provided by law,

244 or as they may hereafter be fixed or determined by law, and all tenns of such courts shall be

245 held in the same manner as though there were but one judge, it being the intent and purpose

246 of this Act to provide four judges equal in jurisdiction and authority to attend and perform

24 7 the functions, powers, and duties of the judges of such superior courts and to direct and

248 conduct all hearings and trials in such courts.

249 SECTION 2-7.

250 The chief judge shall be selected by majority vote of the judges of the superior courts of the

251 Western Judicial Circuit. In the event of a tie vote, the judge nominated for the position most

252 senior in point of service shall be the chief judge for the ensuing term. The term of the chief

253 judge shall be for two years, or until the person serving as chief judge resigns the position

254 or leave the court, whichever time is shorter. The chief judge shall be eligible to succeed

255 himself or herself for one additional term.

256 SECTION 2-8.

257 Upon and after qualification of the additional judge of the superior courts of the Western

258 Judicial Circuit, the four judges of such circuit may adopt, promulgate, amend, and enforce

259 such rules of practice and procedure in consonance with the Constitution and laws of the

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15 HB279/AP

260 State of Georgia as they deem suitable and proper for the effective transaction of the business

261 of the court; and, in transacting the business of the court and in performing their duties and

262 responsibilities, they shall share, divide, and allocate the work and duties to be perfonned by

263 each. In the event of a disagreement among the judges in respect hereof, the decision of the

264 chief judge shall be controlling. The four judges of the superior courts of the Western

265 Judicial Circuit shall have and are clothed with full power, authority, and discretion to

266 determine from time to time and term to term the manner of calling the dockets, fixing the

267 calendars, and order of business in such courts. They may assign to one of such judges the

268 hearing of trials by jury for a term and the hearing of all other matters not requiring a trial

269 by jury to the other judges, and they may rotate such order of business at the next term. They

270 may conduct trials by jury at the same time in the same county or otherwise within such

271 circuit, or they may hear chambers business and motion business at the same time at any

272 place within such circuit. They may provide in all respects for holding the superior courts

273 of such circuit so as to facilitate the hearing and determination of all the business of such

274 courts at any time pending and ready for trial or hearing. In all such matters relating to the

275 fixing, arranging for, and disposing of the business of such courts and making appointments

276 as authorized by law where the judges thereof cannot agree or shall differ, the opinion or

277 order of the chief judge as provided for in this Act shall control.

278 SECTION 2-9.

279 The drawing and impaneling of all jurors, whether grand, petit, or special, may be by any of

280 the judges of the superior courts of such circuit; and they, or any one of them, shall have full

281 power and authority to draw and impanel jurors for service in such courts so as to have jurors

282 for the trial of cases before any of such judges separately or before each of them at the same

283 time.

284 SECTION 2-10.

285 The four judges of the superior courts of the Western Judicial Circuit shall be authorized and

286 empowered to appoint an additional court reporter for such circuit, whose compensation shall

287 be as now or hereafter provided by Jaw.

288 SECTION 2-11.

289 All writs, processes, orders, subpoenas, and any other official paper issuing out of the

290 superior courts of the Western Judicial Circuit may bear teste in the name of any judge of the

291 Western Judicial Circuit and, when issued by and in the name of any judge of such circuit,

292 shall be fully valid and may be heard and determined before the same or any other judge of

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15 HB279/AP

293 such circuit. Any judge of such circuit may preside over any case therein and perfonn any

294 official act as judge thereof.

295 SECTION 2-12.

296 Upon request of any judge of the circuit, the governing authorities of the counties comprising

297 the Western Judicial Circuit shall be authorized to furnish the judges of such circuit with

298 suitable courtrooms and facilities, office space, telephones, furniture, office equipment,

299 supplies, and such personnel as may be considered necessary by the court to the proper

300 function of the court. All of the expenditures authorized in this Act are declared to be an

301 expense of the court and payable out of the county treasury as such.

302 SECTION 2-13.

303 Nothing in this part shall be deemed to limit or restrict the inherent powers, duties, and

304 responsibilities of superior court judges provided by the Constitution and statutes of the State

305 of Georgia.

306 PART ID

307 SECTION 3-1.

308 Title 15 of the Official Code of Georgia Annotated, relating to courts, is amended by revising

309 Chapter 22, currently designated as reserved, as follows:

310 "CHAPTER 22

311 15-22-1.

312 (a) There is created the Judicial. District Attorney. and Circuit Public Defender

313 Compensation Commission for the purpose of conducting periodic comprehensive reviews

314 of all aspects of compensation paid to justices. judges. district attorneys. and circuit public

315 defenders.

316 (b) As used in this chapter. the term 'commission' means the Judicial. District Attorney.

317 and Circuit Public Defender Compensation Commission.

318 15-22-2.

319 (a) The commission shall consist of five members. The Governor shall appoint two citizen

320 members, one of whom shall have experience in executive compensation who is not an

321 attorney. The Chief Justice of the Supreme Court shall appoint one member who shall be

322 currently serving or be retired from serving as a judge or justice in this state. The

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323 Lieutenant Governor and the Speaker of the House of Representatives shall each appoint

324 one member, neither of whom shall be attorneys. The chairperson of the Senate

325 Appropriations Committee and the chairoerson of the House Committee on Appropriations

326 shall serve as ex officio nonvoting members of the commission.

327 (bl Each member of the commission shall be appointed to serve for a term of four years

328 or until his or her successor is duly appointed. A member may be appointed to succeed

329 himself or herself on the commission. If a member of the commission is an elected or

330 appointed official, the member shall be removed from the commission ifthe member no

331 longer serves as such elected or aruiointed official.

332 (c) Vacancies on the commission shall be filled by appointment in the same manner as the

333 original aruiointment. An aruiointment to fill a vacancy, other than by expiration of a term

3 34 of office, shall be for the balance of the unexpired term.

335 (d) The Governor shall designate the chairperson of the commission. The commission

336 may elect other officers as it deems necessary. The chairperson of the commission may

337 designate and aruioint committees from among the membership of the commission as well

338 as appoint other persons to perform such functions as he or she may determine to be

339 necessary as relevant to and consistent with this chapter. The chairperson shall only vote

340 to break a tie.

341 (e) The commission shall be attached for administrative purposes only to the Criminal

342 Justice Coordinating Commission. The Criminal Justice Coordinating Commission shall

343 provide staff support for the commission and shall use any funds specifically aruiropriated

344 to it to support the work of the commission.

345 15-22-3.

346 (a) The commission may conduct meetings at such places and times as it deems necessary

347 or convenient to enable it to exercise fully and effectively its powers, perform its duties.

348 and accomplish the objectives and purposes of this chapter. The commission shall hold

349 meetings at the call of the chairperson. The commission shall meet not less than twice

350 every year.

351 (b) A quorum for transacting business shall be a majority of the members of the

352 commission.

353 (c) Any legislative members of the commission shall receive the allowances provided for

354 in Code Section 28-1-8. Citizen members shall receive a daily expense allowance in the

355 amount specified in subsection (b) of Code Section 45-7-21 as well as the mileage or

3 56 transportation allowance authorized for state employees. Members of the commission who

357 are state officials, other than legislative members, or state employees shall receive no

358 compensation for their services on the commission, but they shall be reimbursed for

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15 HB279/AP

359 expenses incurred by them in the performance of their duties as members of the

360 commission in the same manner as they are reimbursed for expenses in their capacities as

361 state officials or state employees. The funds necessary for the reimbursement of the

362 expenses of state officials. other than legislative members. and state employees shall come

363 from funds appropriated to or otherwise available to theirrespective departments. All other

364 funds necessary to cany out this subsection shall come from funds appropriated to the

365 Senate and the House of Representatives.

366 15-22-4.

367 (a) The commission shall have the following duties:

368 (1) To review the conditions. needs. issues. and problems related to the efficient use of

369 resources and caseload balance of the justice system in this state and the compensation

370 paid to justices. judges. district attorneys. and circuit public defenders: issue a report on

371 the same to the executive counsel of the Governor. the Office of Planning and Budget,

372 and the chairpersons of the House Committee on Appropriations. the Senate

373 Appropriations Committee. the House Committee on Judiciaiy. and the Senate Judiciary

374 Committee; and recommend any action or proposed legislation which the commission

375 deems necessary or appropriate. Nothing contained in the commission's report shall be

376 considered to authorize or require a change in any law without action by the General

377 Assembly. The commission shall issue its first report on or before December 15. 2015.

3 78 its second report on or before December 15. 2016. and thereafter at least eveiy two years;

379 and

380 (2) To evaluate and consider:

381 CA) Whether the compensation structure of this state is adequate to ensure that the most

382 highly qualified attorneys in this state. drawn from diverse life and professional

383 experiences. are not deterred from serving or continuing to serve in the state judiciary.

384 as district attorneys. and as circuit public defenders and do not become demoralized

385 during service because of compensation levels:

386 (B) The compensation paid as a county supplement to judges. district attorneys. circuit

387 public defenders. and other staff associated with the courts;

388 (C) The caseload demands of judicial officers, prosecuting attorneys. and public

389 defenders and the allocation of such officials. including staffing resources and

390 jurisdictional structure:

391 (D) The skill and experience required of the particular judgeships or attorney positions

392 at issue:

393 (E) The time required of the particular judgeships or attorney positions at issue;

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15 HB 279/AP

394 (F) The value of compensable service performed by justices and judges. district

395 attorneys. and circuit public defenders as determined by reference to compensation in

396 other states and the federal government;

397 (G) The value of comparable service performed in the private sector. including private

398 judging. arbitration, and mediation, based on the responsibility and discretion required

399 in the particular judgeship at issue and the demand for those services in the private

400 sector;

40 I (H) The compensation of attorneys in the private sector:

402 (I) The Consumer Price Index and changes in such index;

403 (]) The overall compensation presently received by other public officials and

404 employees: and

405 CK) Any other factors that are normally or traditionally taken into consideration in the

406 determination of compensation.

407 Cb) The commission shall have the following powers:

408 (1) To make findings. conclusions. and recommendations as to the proper salary and

409 benefits for all justices and judges. district attorneys. and circuit public defenders of this

410 state;

411 (2) To make findings. conclusions. and recommendations as to the efficient use of

412 resources and caseload balance of the justice system in this state;

413 (3) To request and receive data from and review the records of appropriate state

414 agencies. local governments, and courts to the greatest extent allowed by state and federal

415 law:

416 (4) To accept public or private grants. devises. and bequests:

417 (5) To authorize entering into contracts or agreements through the commission's

418 chairperson necessary or incidental to the performance of its duties;

419 (6) To establish rules and procedures for conducting the business of the commission: and

420 (7) To conduct studies. hold public meetings. collect data. or take any other action the

421 commission deems necessary to fulfill its responsibilities.

422 (c) The commission shall be authorized to retain the services of attorneys. consultants.

423 subject matter experts. economists. budget analysts. data analysts. statisticians. and other

424 individuals or organizations as determined appropriate by the commission.

425 15-22-5.

426 This chapter shall be repealed effective June 30. 2020. unless continued in effect by the

427 General Assembly prior to that date."

H.B. 279 - 13 -

428

429

15

PART IV

SECTION 4-1.

HB279/AP

430 (a) Except as provided in subsections (b) and (c) of this section, this Act shall become

431 effective upon its approval by the Governor orupon its becoming law without such approval.

432 (b)(l) Part I of this Act shall become effective only if funds are appropriated for

4 3 3 purposes of Part I of this Act in an appropriations Act enacted at the 2015 regular session

434 of the General Assembly.

435 (2) If funds are so appropriated, then Part I of this Act shall become effective on July 1,

436 2015, for purposes of making the initial appointments of the Court of Appeals Judges

437 created by Part I of this Act, and for all other purposes, Part I of this Act shall become

438 effective on January 1, 2016.

439 (3) If funds are not so appropriated, then Part I of this Act shall not become effective and

440 shall stand repealed on July 1, 2015.

441 ( c )( 1) For purposes of making the initial appointments of the judge to fill the superior

442 court judgeship created by Part II of this Act, Part II of this Act shall become effective

443 upon its approval by the Governor or its becoming law without such approval.

444 (2) For all other purposes, Part II of this Act shall become effective on April 1, 2016.

445 SECTION 4-2.

446 All laws and parts of laws in conflict with this Act are repealed.

H.B. 279 - 14 -

EXHIBIT "B"

Governor Nathan Deal Office of the Governor EXHIBIT "B"

Home » Press Releases » Deal announces Court of Appeals appointments

Deal announces Court of Appeals appointments October 29, 2015

Gov. Nathan Deal today announced the appointment of the Honorable Amanda H. Mercier, the Honorable Nels S.D. Peterson and the Honorable Brian M. Rickman to

the Georgia Court of Appeals. These new judgeships were created by the passage

of HB 279 during the 2015 legislative session. The terms of the new judges will

begin Jan. 1, 2016, and will continue through Dec. 31, 2018.

Amanda H. Mercier Mercier currently serves as a superior court judge within the Appalachian Judicial

Circuit. She earned a bachelor's degree from the University of Georgia and a law

degree from Syracuse University College of Law. She and her husband, Joseph,

have one child and reside in Blue Ridge.

Nels S.D. Peterson Peterson currently serves as vice chancellor for legal affairs and secretary to the

Board of Regents. He previously worked at the Georgia Department of Law and

established Georgia's first Solicitor General Office where he served as solicitor general. He was also the deputy executive counsel and executive counsel for Gov.

Sonny Perdue. Peterson earned a bachelor's degree in Political Science from Kennesaw State University and a law degree from Harvard Law School. He and his wife, Jennifer, have two children and reside in Marietta.

Brian M. Rickman Rickman currently serves as district attorney of the Mountain Judicial Circuit, where he was previously an assistant district attorney. He is an adjunct professor

and serves on the board of trustees at Piedmont College. Rickman earned a

bachelor's degree from Piedmont College and a law degree from the University of Georgia School of Law. He and his wife, Maggie, have two children and reside in

Tiger.

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EXHIBIT "C"

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EXHIBIT "C"

ACTS AND RESOLUTIONS OF THE GENERAL ASSEMBLY OF THE STATE OF GEORGIA. 1906.

PART I--PUBLIC LAWS. TITLE ID. AMENDMENTS TO CONSTITUTION.

1906 Vol. 1 - Page: 24

Sequential Number: 012

Short Title: COURT OF APPEALS, ESTABLISHMENT OF. Law Number: No. 373.

Full Title: An Act to amend paragraph one of section one of article six of the Constitution of this State, and paragraph five of section two of said article, and to add to said section two a paragraph to be known as paragraph nine, so as to provide for the establishment of a Court of Appeals and to define its powers and jurisdiction; to define the jurisdiction of the Supreme Court, and for other purposes.

SECTION 1. Be it enacted by the General Assembly, That paragraph one of section one of article six of the Constitution of this State be amended so that it shall read as follows:

"The judicial powers of this State shall be vested in a Supreme Court, a Court of Appeals, superior courts, courts of ordinary, justices of the peace, commissioned notaries public, and such other courts as have been or may be established by law." [Sidenote: Judicial department.]

SEC. 2. Be it further enacted, That paragraph five of section two of article six of the Constitution of this State be amended so that it shall read as follows:

"The Supreme Court shall have no original jurisdiction, but shall be a court alone for the trial and correction of errors in law and equity from the superior courts in all civil cases, whether legal or equitable, originating therein, or carried thereto from the court of ordinary, and in all cases of conviction of a capital felony, and

Page:25

for the determination of questions certified to it by the Court of Appeals; and shall sit at the seat of government at such times in each year as are or may be prescribed by law, for the trial and determination of writs of error from the superior courts and of questions certified to it as aforesaid. The provisions of this paragraph shall become effective on the first day of January, Anno Domini nineteen hundred and seven, but shall not affect cases

which on that date are pending in the Supreme Court, except that cases then pending therein of the kind of which the Court of Appeals has jurisdiction may be transferred by the Supreme Court to the Court of Appeals. Any case thereafter carried to the Supreme Court which is of the class of which the Court of Appeals has jurisdiction may be transferred to the Court of Appeals, under such rules as the Supreme Court may prescribe, until otherwise provided by law; and the Court of Appeals shall try the cases so transferred." [Sidenote: Supreme Court jurisdiction.]

SEC. 3. Be it further enacted, That the Constitution of this State be amended by adding to section two of article six a paragraph to be known as paragraph nine, which shall read as follows:

"The Court of Appeals shall, until otherwise provided by law, consist of three judges, of whom two shall constitute a quorum. It shall sit at the seat of government and at such other places as may be prescribed by law. The Governor shall, immediately on the ratification of this amendment, call an election, to be held on Tuesday after the first Monday in November, Anno Domini nineteen hundred and six, at which the judges of the Court of Appeals shall be elected in the manner in which Justices of the Supreme Court are elected. The returns of said election shall be made to the Secretary of State, and the Secretary of State shall canvass the returns and declare the three persons receiving the greatest number of votes to be elected. The terms of office of the judges then elected shall begin on the first day of January, Anno Domini nineteen hundred and seven, and shall continue respectively two, four and six years and until their successors are qualified. The persons so elected shall, among themselves, determine by lot which of the terms each shall have, and they shall be commissioned accordingly by the Governor. All terms of the judges of the Court of Appeals after the expiration of the terms aforesaid (except unexpired terms) shall continue six years and until their successors are qualified. The times and manner of all other elections, and the mode of filling a vacancy which causes an unexpired term, shall be the same as are or may be provided for by the laws relating to the election and appointment

Page:26

of Justices of the Supreme Court. The Court of Appeals shall have jurisdiction for the trial and correction of errors in law and equity from the superior courts in all cases in which such jurisdiction is not conferred by this Constitution on the Supreme Court, and from the city courts of Atlanta and Savannah, and such other like courts as have been or may be hereafter established in other cities, and in such other cases as may hereafter be prescribed by law, except that where, in a case pending in the Court of Appeals, a question is raised as to the construction of a provision of the Constitution of this State or of the United States, or as to the constitutionality of an Act of the General Assembly of this State, and a decision of the question is necessary to the determination of the case, the Court of Appeals shall so certify to the Supreme Court, and thereupon a transcript of the record shall be transmitted to the Supreme Court, which, after having afforded to the parties an opportunity to be heard thereon, shall instruct the Court of Appeals on the question so certified, and the Court of Appeals shall be bound by the instruction so given. But if by reason of an equal division of opinion among the Justices of the Supreme Court no such instruction is given, the Court of Appeals may decide the question. The Court of Appeals may at any time certify to the Supreme Court any other question of law concerning which it desires the instruction of the Supreme Court for proper decision; and thereupon the Supreme Court shall give its instruction on the question certified to it, which shall be

binding on the Court of Appeals in such case. The manner of certifying questions to the Supreme Court by the Court of Appeals, and the subsequent proceedings in regard to the same in the Supreme Court, shall be as the Supreme Court shall by its rules prescribe, until otherwise provided by law. No affirmance of the judgment of the court below, in cases pending in the Court of Appeals, shall result from delay in disposing of questions certified by the Court of Appeals to the Supreme Court. All writs of error in the Court of Appeals when received by its clerk during a term of the court and before the docket of the term is by order of the court closed, shall be entered thereon, and when received at any other time shall be entered on the docket of the next term, and they shall stand for hearing at the term for which they are so entered, under such rules as the court may prescribe, until otherwise provided by law. The Court of Appeals shall appoint a clerk and a sheriff of the court. The reporter of the Supreme Court shall be reporter of the Court of Appeals, until otherwise provided by law. The first term of the Court of Appeals shall be held on the

Page:27

first Monday in January, Anno Domini nineteen hundred and seven. The laws relating to the Supreme Court, as to qualifications and salaries of the judges, the designation of other judges to preside when members of the court are disqualified, the powers, duties, salaries, fees and terms of officers, the mode of carrying cases to the court, the powers, practice, procedure, times of sitting and costs of the court, the publication of reports of cases decided therein, and in all other respects, except as otherwise provided in this Constitution, and until otherwise provided by law, shall apply to the Court of Appeals, so far as they can be made to apply. The decisions of the Supreme Court shall bind the Court of Appeals as precedents." [Sidenote: Court of Appeals, judges of.] [Sidenote: Jurisdiction.] [Sidenote: Officers.]

SEC. 4. Be it further enacted, That wherever the above proposed amendment to the Constitution shall be agreed to by two-thirds of the members elected to each of the two houses of the General Assembly, and the same has been entered on their journals, with the ayes and nays taken thereon, the Governor shall, and he is hereby authorized and instructed to cause said amendment to be published in at least two newspapers in each congressional district in this State for the period of two months next preceding the time of holding the next general election. [Sidenote: Advertisement of proposed amendment]

SEC. 5. Be it further enacted, That the above proposed amendment shall be submitted for ratification or rejection to the electors of this State at the next general election to be held after publication, as provided in the fourth section of this Act, in the several election districts of this State, at which election every person shall be qualified to vote who is entitled to vote for members of the General Assembly. All persons voting at said election in favor of adopting the proposed amendment to the Constitution shall have written or printed on their ballots the words, "For Court of Appeals Amendment," and all persons opposed to the adoption of said amendment shall have written or printed on their ballots the words, "Against Court of Appeals Amendment." [Sidenote: Ratification]

SEC. 6. Be it further enacted, That the Governor be, and he is, hereby authorized and directed to provide for the submission of the amendment proposed in the first, second and third sections of this Act to a vote of the people as required by the Constitution of this State in paragraph I of section I of article

13, and by this Act, and if ratified the Governor shall, when he [Illegible Text] such ratification from the Secretary of State, to whom the returns shall be referred in the manner as in cases of elections for members of the General Assembly to count and ascertain the results, issue his proclamation for one insertion in one of the daily papers

Page:28

of this State, announcing such result and declaring the amendment ratified. [Sidenote: Announcement of result]

SEC. 7. Be it further enacted, That all laws and parts of laws in conflict with this Act be, and the same are, hereby repealed.

Approval Date: Approved July 31, 1906.

EXHIBIT "D"

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Act/Resolution 35of81

EXHIBIT "D"

ACTS AND RESOLUTIONS OF THE GENERAL ASSEMBLY OF THE STATE OF GEORGIA 1916

PART 1.--PUBLIC LAWS TITLE IV. COURTS.

1916 Vol. 1 - Page: 56


Short Title: COURT OF APPEALS; JUDGES AND CONDUCT OF BUSINESS. Law Number: No. 572.

Full Title: An Act to prescribe the number of Judges of the Court of Appeals ofthis State, to provide for the election of such judges, to prescribe regulations for conducting the business of said court, and for other purposes.

Section 1. Be it enacted by the General Assembly, That from and after the first day of January, anno domini nineteen hundred and seventeen, the Court of Appeals of this State shall consist of six judges, of whom three shall be the judges constituting the court at the time of the approval of this Act, and their successors in office; and three shall be elected as hereinafter prescribed. The judges shall elect one of their number as Chief Judge, in such manner and for such time as may be prescribed by rule or order of the court. The court shall sit in divisions of three judges each, but two judges shall constitute a quorum of a division. The

Page:57

assignment of judges to each division shall be made by the Chief Judge, and the personnel of the divisions shall from time to time be changed in accordance with rules prescribed by the court. The division of which the Chief Judge is a member shall be known as the first division, and he shall be its presiding judge. He shall designate the presiding judge of the second division, and shall, under rules prescribed by the court, distribute the cases between the divisions in such manner as to equalize their work as far as practicable; and all criminal cases shall be assigned to one division. Each division shall hear and determine, independently of the other, the cases assigned to it. [Sidenote: Sixjudges.] [Sidenote: Chief Judge.] [Sidenote: Two divisions.]

Sec. 2. Be it further enacted by the authority aforesaid, That the three additional judges of the Court of

Appeals provided for in this Act shall be elected at the general State election to be held on Tuesday after the first Monday in November, 1916, in the manner in which justices of the Supreme Court are elected. The terms of the judges so elected shall begin on the first day of January, anno domini nineteen hundred and seventeen, and shall continue respectively two, four, and six years, and until their successors are qualified. The persons so elected shall determine by lot which of the terms each shall have, and they shall be commissioned accordingly by the Governor. All terms of the judges of the Court of Appeals after the expiration of the terms aforesaid (except unexpired terms) shall continue six years and until their successors are qualified. [Si denote: Election of judges.] [Sidenote: Terms of office.]

Sec. 3. Be it further enacted by the authority aforesaid, That all laws now of force relating to the Court of Appeals shall, so far as may be practicable and with such modifications as necessarily result from this Act, apply to said court after its reorganization hereunder. [Sidenote: Laws applicable.]

Sec. 4. Be it further enacted by the authority aforesaid, That all laws and parts of laws in conflict with this Act be and the same are hereby repealed.

Approval Date: Approved August 19, 1916.

EXHIBIT "E"

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Act/Resolution 2 of 2

EXHIBIT "E"


[missing title]

1960 Vol. 1 - Page: 158


Short Title: COURT OF APPEALS -- ADDITIONAL JUDGE. Intent: Code§§ 24-3501, 24-3502 Amended. Law Number: No. 515 Origin: (House Bill No. 1075).

Full Title: An Act to amend Code section 24-3501, as amended by an Act approved March 8, 1945 (Ga. L. 1945, p. 232, 234), and Code section 24-3502, so as to increase the number of judges from six to seven; to provide that the court shall sit in two divisions, one composed of three judges and the other composed of four judges; to provide when all members of the court shall sit as one court; to provide for the election of the seventh judge; to repeal conflicting laws; and for other purposes.

Be it enacted by the General Assembly of Georgia:

Section 1. Code section 24-3501, as amended by an Act approved March 8, 1945 (Ga. L. 1945, p. 232-234),

Page: 159

relating to the number of Judges on the Court of Appeals is hereby amended by striking said section in its entirety and inserting in lieu thereof a new section to read:

"24-3501. The Court of Appeals shall consist of seven Judges, who shall elect one of their number as Chief Judge, in such manner and for such time as may be prescribed by rule or order of the Court. The Court shall sit in two divisions, one composed of three Judges and the other of four Judges. Two Judges shall constitute a quorum of the three Judge division and three Judges shall constitute a quorum of the four Judge division. The assignment of Judges to each division shall be made by the Chief Judge, and the personnel of the divisions shall from time to time be changed in accordance with rules prescribed by the Court. The Chief Judge shall be the presiding Judge of the first division. He shall designate the Presiding Judge of the second division, and shall under rules prescribed by the Court,

distribute the cases between the divisions in such manner as to equalize their work as far as practicable; and all criminal cases shall be assigned to one division. Each division shall hear and determine, independently of the other, the cases assigned to it, except that all members of the Court, sitting as one court, shall pass on and determine each case in which there is a dissent in the division to which the case was originally assigned. In all cases which involve one or more questions which in the opinion of the majority of the Judges of the division to which a case is assigned should be passed upon by all the members of the Court, sitting as one court, the questions may be presented to all the members of the Court, sitting as one court, and if a majority of all the members of the Court, sitting as one court, decide that the question or questions involved should in their judgment and discretion be decided by all the members of the Court, sitting as one court, the case shall be passed upon by all the members of the Court, sitting as one court, provided that a majority of the Judges passing upon the case concur in the judgment. In neither class of cases shall there be oral argument except before the division to which the cases are originally assigned. [Sidenote: Code§ 24-3501 amended.)

Page: 160

"It being among the purposes of this section to avoid and reconcile conflicts between the decisions of the two divisions and to secure more authoritative decisions, it is hereby provided that when the two divisions sitting as one court, composed of both divisions, the Court as thus constituted may by the concurrence of as many as five Judges overrule any previous decision by either division alone in the same manner as now prescribed for the Supreme Court; and as precedent, a decision by such entire, Court, with only a majority concurring shall take precedence over a decision by either division not concurred in by all the Judges of such division. A decision concurred in by all the Judges shall not be overruled or materially modified except with the concurrence of all the Judges. Cases previously decided unanimously by the Court composed of six Judges shall not be overruled or materially modified except with the concurrence of seven Judges.

"When all the members of the Court are sitting together as one court four Judges shall be necessary to constitute a quorum, but in all cases decided by such Court as a whole by less than seven Judges, the concurrence of at least four shall be essential to the rendition of a judgment.

"The tenue of the Judge first commissioned as the seventh Judge of the Court of Appeals shall continue until December 31, 1960 and until his successor is qualified; that his successor shall be elected at the general State election to be held on the Tuesday after the first Monday in November, 1960 for a term of six years and until his successor is qualified."

Section 2. That Code section 24-3502 relating to the election of Judges on the Court of Appeals is hereby amended by striking said section in its entirety and inserting in lieu thereof a new section to read: [Sidenote: Code§ 24-3502 amended.]

"Two Judges of the Court of Appeals shall be elected at each general State election to be held on Tuesday after the first Monday in November of the even numbered

Page: 161

years, in the manner in which Justices of the Supreme Court are elected; except that three Judges shall be elected at the general State election to be held in 1960 and thereafter at each six year interval. The terms of the Judges so elected shall begin on January 1 following their election and shall continue for six years and until their successors are qualified. They shall be commissioned accordingly by the Governor."

Section 3. All laws or parts of laws in conflict with this Act are hereby repealed.

Approval Date: Approved March 3, 1960.

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EXHIBIT "F"

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EXHIBIT "F"



1961Vol.1 - Page: 140


Short Title: COURT OF APPEALS -- ADDITIONAL JUDGES. Intent: Code§§ 24-3501 -- 24-3502 Amended. Law Number: No. 148 Origin: (House Bill No. 80).

Full Title: An Act to amend Code section 24-3501, as amended, particularly by an Act approved March 8, 1945 (Ga. L. 1945, p. 232), an Act approved March 3, 1960 (Ga. L. 1960, p. 158), and Code section 24-3502, as amended by an Act approved March 3, 1960 (Ga. L. 1960, p. 158), so as to increase the number of judges from seven to nine; to provide that the court shall sit in three divisions, composed of three judges in each division; to provide when all members of the court shall sit as one court; to provide for the election of the eighth and ninth judges; to repeal conflicting laws; and for other purposes.


Section 1. Code section 24-3501, as amended, particularly by an Act approved March 8, 1945 (Ga. L. 1945, p. 232), an Act approved March 3, 1960 (Ga. L. 1960, p. 158), relating to the number of Judges on the Court of Appeals, is hereby amended by striking said section in its entirety and inserting in lieu thereof a new section, to read:

"24-3501. The Court of Appeals shall consist of nine Judges, who shall elect one of their number as Chief Judge, in such manner and for such time as may be prescribed by rule or order of the Court. The Court shall sit in three divisions, composed of three Judges in each division. Two Judges shall constitute a quorum of a division. The assignment of Judges to each division shall be made by the Chief Judge, and the personnel of the divisions shall from time to time be changed in accordance with rules prescribed by the Court. The Chief Judge shall be the Presiding Judge of the first division. He shall designate the Presiding Judges of the second and third divisions, and shall, under rules prescribed

Page: 141

by the Court, distribute the cases among the divisions in such manner as to equalize their work as far as practicable; and all criminal cases shall be assigned to one division. Each division shall hear and determine, independently of the others, the cases assigned to it, except that all members of the Court, sitting as one court, shall pass on and determine each case in which there is a dissent in the division to which the case was originally assigned. In all cases which involve one or more questions which in the opinion of the majority of the Judges of the division to which a case is assigned should be passed upon by all the members of the Court, sitting as one court, the questions may be presented to all the members of the Court, sitting as one court, and if a majority of all the members of the Court, sitting as one court, decide that the question or questions involved should in their judgment and discretion be decided by all the members of the Court, sitting as one court, the case shall be passed upon by all the members of the Court, sitting as one court, provided that a majority of the Judges passing upon the case concur in the judgment. In neither class of cases shall there be oral argument except before the division to which the cases are originally assigned. [Sidenote: Code§ 24-3501 amended.)

"It being among the purposes of this section to avoid and reconcile conflicts among the decisions of the three divisions and to secure more authoritative decisions, it is hereby provided that when the three divisions sitting as one court, composed of all three divisions, the Court as thus constituted may by the concurrence of as many as five Judges overrule any previous decision by any division alone in the same manner as now prescribed for the Supreme Court; and, as precedent, a decision by such entire Court, with only a majority concurring shall take precedence over a decision by any division. A decision concurred in by all the Judges shall not be overruled or materially modified except with the concurrence of all the Judges.

"When all the members of the Court are sitting together as one court five Judges shall be necessary to

Page: 142

constitute a quorum, but in all cases decided by such Court as a whole by less than nine Judges, the concurrence of at least five shall be essential to the rendition of a judgment.

"The tenure of the Judges first commissioned as the eighth and ninth Judges of the Court of Appeals shall continue until December 31, 1962, and until their successors are qualified; that their successors shall be elected at the general State election to be held on Tuesday after the first Monday in November, 1962, for a term of six years and until their successors are qualified."

Section 2. That Code section 24-3502, as amended by an Act approved March 3, 1960 (Ga L. 1960, p. 158), relating to the election of Judges on the Court of Appeals, is hereby amended by striking said section in its entirety and inserting in lieu thereof a new section, to read:

"Two Judges of the Court of Appeals shall be elected at each general State election to be held on Tuesday after the first Monday in November of the even numbered years, in the manner in which Justices of the Supreme Court are elected; except that three Judges shall be elected at the general State election to be held in 1960 and thereafter at each six-year interval, and that four Judges shall be elected at the general State election to be held in 1962 and thereafter at each six-year interval. The terms of the Judges so elected shall begin

on January 1 following their election, and shall continue for six years and until their successors are qualified. They shall be commissioned accordingly by the Governor." [Sidenote: Code§ 24-3502 amended.]

Section 3. All laws and parts of laws in conflict with this Act are hereby repealed.


EXHIBIT "F"

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EXHIBIT "F"



1961Vol.1 -- Page: 140


Short Title: COURT OF APPEALS -- ADDITIONAL JUDGES. Intent: Code§§ 24-3501 -- 24-3502 Amended. Law Number: No. 148 Origin: (House Bill No. 80).

Full Title: An Act to amend Code section 24-3501, as amended, particularly by an Act approved March 8, 1945 (Ga. L. 1945, p. 232), an Act approved March 3, 1960 (Ga. L. 1960, p. 158), and Code section 24-3502, as amended by an Act approved March 3, 1960 (Ga. L. 1960, p. 158), so as to increase the number of judges from seven to nine; to provide that the court shall sit in three divisions, composed of three judges in each division; to provide when all members of the court shall sit as one court; to provide for the election of the eighth and ninth judges; to repeal conflicting laws; and for other purposes.


Section 1. Code section 24-3501, as amended, particularly by an Act approved March 8, 1945 (Ga. L. 1945, p. 232), an Act approved March 3, 1960 (Ga. L. 1960, p. 158), relating to the number of Judges on the Court of Appeals, is hereby amended by striking said section in its entirety and inserting in lieu thereof a new section, to read:

"24-3501. The Court of Appeals shall consist of nine Judges, who shall elect one of their number as Chief Judge, in such manner and for such time as may be prescribed by rule or order of the Court. The Court shall sit in three divisions, composed of three Judges in each division. Two Judges shall constitute a quorum of a division. The assignment of Judges to each division shall be made by the Chief Judge, and the personnel of the divisions shall from time to time be changed in accordance with rules prescribed by the Court. The Chief Judge shall be the Presiding Judge of the first division. He shall designate the Presiding Judges of the second and third divisions, and shall, under rules prescribed

Page: 141

by the Court, distribute the cases among the divisions in such manner as to equalize their work as far as practicable; and all criminal cases shall be assigned to one division. Each division shall hear and determine, independently of the others, the cases assigned to it, except that all members of the Court, sitting as one court, shall pass on and determine each case in which there is a dissent in the division to which the case was originally assigned. In all cases which involve one or more questions which in the opinion of the majority of the Judges of the division to which a case is assigned should be passed upon by all the members of the Court, sitting as one court, the questions may be presented to all the members of the Court, sitting as one court, and if a majority of all the members of the Court, sitting as one court, decide that the question or questions involved should in their judgment and discretion be decided by all the members of the Court, sitting as one court, the case shall be passed upon by all the members of the Court, sitting as one court, provided that a majority of the Judges passing upon the case concur in the judgment. In neither class of cases shall there be oral argument except before the division to which the cases are originally assigned. [Sidenote: Code§ 24-3501 amended.]

"It being among the purposes of this section to avoid and reconcile conflicts among the decisions of the three divisions and to secure more authoritative decisions, it is hereby provided that when the three divisions sitting as one court, composed of all three divisions, the Court as thus constituted may by the concurrence of as many as five Judges overrule any previous decision by any division alone in the same manner as now prescribed for the Supreme Court; and, as precedent, a decision by such entire Court, with only a majority concurring shall take precedence over a decision by any division. A decision concurred in by all the Judges shall not be overruled or materially modified except with the concurrence of all the Judges.

"When all the members of the Court are sitting together as one court five Judges shall be necessary to

Page: 142

constitute a quorum, but in all cases decided by such Court as a whole by less than nine Judges, the concurrence of at least five shall be essential to the rendition of a judgment.

"The tenure of the Judges first commissioned as the eighth and ninth Judges of the Court of Appeals shall continue until December 31, 1962, and until their successors are qualified; that their successors shall be elected at the general State election to be held on Tuesday after the first Monday in November, 1962, for a term of six years and until their successors are qualified."

Section 2. That Code section 24-3502, as amended by an Act approved March 3, 1960 (Ga. L. 1960, p. 158), relating to the election of Judges on the Court of Appeals, is hereby amended by striking said section in its entirety and inserting in lieu thereof a new section, to read:

"Two Judges of the Court of Appeals shall be elected at each general State election to be held on Tuesday after the first Monday in November of the even numbered years, in the manner in which Justices of the Supreme Court are elected; except that three Judges shall be elected at the general State election to be held in 1960 and thereafter at each six-year interval, and that four Judges shall be elected at the general State election to be held in 1962 and thereafter at each six-year interval. The terms of the Judges so elected shall begin

on January 1 following their election, and shall continue for six years and until their successors are qualified. They shall be commissioned accordingly by the Governor. 11

[Sidenote: Code § 24-3502 amended.]

Section 3. All laws and parts of laws in conflict with this Act are hereby repealed.


EXHIBIT "G"

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EXHIBIT "G"


[missing title]

1996 Vol. 1 - Page: 405


Short Title: COURTS -- COURT OF APPEALS; NUMBER OF JUDGES; MANNER OF HEARING AND DECIDING CASES; MANNER OF OVERRULING DECISIONS; QUORUM; ELECTION AND TERM OF OFFICE; SUPERIOR COURTS; LOCAL SALARY SUPPLEMENTS FOR JUDGES IN NEWLY CREATED SUPERIOR COURT ruDGESHIPS; NO PUBLICATION OF INTENT TO INTRODUCE LOCAL LEGISLATION REQUIRED FOR BILL CREATING NEW SUPERIOR COURT JUDGESHIP. Intent: Code Sections 15-3-1, 15-3-4, and 15-6-29 Amended. Law Number: No. 738 Origin: (Senate Bill No. 750). Type: AN ACT

Full Title: To amend Chapter 3 of Title 15 of the Official Code of Georgia Annotated, relating to the Court of Appeals, so as to increase the membership of the Court of Appeals; to provide for the manner in which cases are heard; to provide for the manner in which decisions can be overruled; to specify what constitutes a quorum; to provide for election and term of office; to amend Code Section 15-6-29 of the Official Code of Georgia Annotated, relating to compensation of superior court judges, so as to provide that when a new judgeship is created, the new judge shall receive the same local salary supplement paid to the incumbent judge or judges of the circuit; to provide that no publication of a notice of intention to introduce local legislation shall be required for any bill creating one or more new judgeships; to provide for related matters; to provide an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

Chapter 3 of Title 15 of the Official Code of Georgia Annotated, relating to the Court of Appeals, is amended by striking in its entirety Code Section 15-3-1, relating to the composition and division of the Court of Appeals, and inserting in lieu thereof a new Code Section 15-3-1 to read as follows:

"15-3-1.

(a) Composition. The Court of Appeals shall consist often Judges who shall elect one of

their number as Chief Judge, in such manner and for such time as may be prescribed by rule or order of the court.

(b) Divisions. The court shall sit in three divisions composed of three Judges in each division. Two Judges shall constitute a quorum of a division. The assignment of Judges to each division shall be made by the Chief Judge, and the personnel of the divisions shall from time to time be changed in accordance with rules prescribed by the court. The Chief Judge shall designate the Presiding Judges of the three divisions and

Page:406

shall, under rules prescribed by the court, distribute the cases among the divisions in such manner as to equalize their work as far as practicable.

( c) How cases heard.

• (1) Each division shall hear and determine, independently of the others, the cases assigned to it, except that the division next in line in rotation and a seventh Judge shall participate in the determination of each case in which there is a dissent in the division to which the case was originally assigned.

• (2) In all cases which involve one or more questions which, in the opinion of the majority of the Judges of the division or of the two divisions plus a seventh Judge to which a case is assigned, should be passed upon by all the members of the court, the questions may be presented to all the members of the court; and if a majority of all the members of the court decide that the question or questions involved should, in their judgment and discretion, be decided by all the members of the court, the case shall be passed upon by all the members of the court, provided that a majority of the Judges passing upon the case concur in the judgment.

• (3) In neither class of cases referred to in this subsection shall there be oral argument except before the division to which the cases are originally assigned.

( d) How decision overruled. It being among the purposes of this Code section to avoid and reconcile conflicts among the decisions made by less than all of the Judges on the court and to secure more authoritative decisions, it is provided that when two divisions plus a seventh Judge sit as one court the court may, by the concurrence of a majority, overrule any previous decision in the same manner as prescribed for the Supreme Court. As precedent, a decision by such court with a majority concurring shall take precedence over a decision by any division or two divisions plus a seventh Judge. A decision concurred in by all the Judges shall not be overruled or materially modified except with the concurrence of all the Judges.

( e) Quorum. When all the members of the court are sitting together as one court, six Judges shall be necessary to constitute a quorum. In all cases decided by such court as a whole by less than ten Judges, the concurrence of at least five shall be essential to the rendition of a judgment.

(f) Oral arguments. The Court of Appeals may hear oral arguments at places other than the seat of government. Reasonable notice shall be given of such hearings.

(g) Assistance of other judges; procedure. Whenever the court unanimously determines that the business of the court requires the temporary

Page:407

assistance of an additional judge or additional judges or one additional panel, the court may request the assistance of senior appellate judges as provided in Chapter 3A of this title or senior superior court judges as provided in Article 8 of Chapter 10 of Title 47. The Judge whose case assignment is transferred to the additional judge shall not vote on the case."

SECTION2.

Said chapter is further amended by striking in its entirety Code Section 15-3-4, relating to the election and term of office of Judges of the Court of Appeals, and inserting in lieu thereof a new Code Section 15-3-4 to read as follows:

"15-3-4.

Two Judges of the Court of Appeals shall be elected at each general state election to be held on Tuesday after the first Monday in November of the even-numbered years in the manner in which Justices of the Supreme Court are elected; except that three Judges shall be elected at the general state election to be held in 1960 and thereafter at each six-year interval, that four Judges shall be elected at the general state election to be held in 1962 and thereafter at each six-year interval, and that one Judge appointed by the Governor on or after July 1, 1996, shall serve until January 1, 1999, and an initial successor to the Judge appointed by the Governor on or after July 1, 1996, shall be duly elected and qualified at the general state election to be held in 1998. Such successor shall serve until January 1, 2001, and a successor to that Judge shall be duly elected and qualified at the general state election to be held in 2000. Thereafter, successors to such Judge shall be elected and qualified at each six-year interval. The terms of the Judges shall begin on January 1 following their election and, except as provided above, shall continue for six years and until their successors are qualified. They shall be commissioned accordingly by the Governor."

• SECTION3.

Code Section 15-6-29 of the Official Code of Georgia Annotated, relating to compensation of superior court judges, is amended by adding at its end a new subsection ( c) to read as follows:

"(c) When a new superior court judgeship is created by law for any judicial circuit, the new superior court judge shall upon taking office become entitled to and shall receive from the county or counties comprising the circuit the same county salary supplement, if any, then in effect for the other judge or judges of the judicial circuit. Such salary supplement for such new judge shall be authorized by this subsection and no other legislation or local legislation shall be required in order to authorize such salary supplement, but nothing in this Code section shall be construed to prohibit the enactment of local legislation relating to

Page:408

such salary supplements. A publication of notice of intention to introduce local legislation as provided for in Code Section 28-1- 14 shall be required for any local legislation granting, changing the amount of, or removing a salary supplement; but no publication of notice of intention shall be required for a bill creating one or more new superior court judgeships."

SECTION 4.

This Act shall become effective on July 1, 1996.

SECTIONS.

All laws and parts of laws in conflict with this Act are repealed.

NOTICE OF INTENTION TO INTRODUCE LOCAL LEGISLATION

Notice is given that there will be introduced at the regular 1996 session of the General Assembly of Georgia a bill to provide for a tenth judge of the superior court of the Stone Mountain Judicial Circuit of Georgia; to provide for the appointment of the first such additional judge by the governor; to prescribed the qualifications, compensation, salary, county supplement and expense allowance of said judge; to authorize the governing authority of any county which comprises the Stone Mountain Judicial Circuit to provide facilities, office space, supplies, equipment, and personnel for said judges; and for other purposes.

This 1st day of February, 1996.

Senator Mary Margaret Oliver 42nd District GEORGIA, FULTON COUNTY

Personally appeared before me, the undersigned authority, duly authorized to administer oaths, Mary Margaret Oliver, who, on oath, deposes and says that she is Senator from the 42nd District, and that the attached copy of Notice of Intention to Introduce Local Legislation was published in the DecaturDeKalb News/Era, which is the officialorgan of DeKalb County, on the following date: February 8, 1996.

Isl Mary Margaret Oliver Senator, 42nd District Sworn to and subscribed before me, this 22nd day of February, 1996. Isl Connie F. Smith Notary Public, Clayton County, Georgia My Commission Expires Dec. 6, 1997 (SEAL)

Approval Date: Approved April 2, 1996.

EXHIBIT "H"

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Act/Resolution 2 of 2

EXHIBIT "H"

ACTS AND RESOLUTIONS OF THE GENERAL ASSEMBLY OF THE STATE OF GEORGIA 1999 Volume One

[missing title]

1999 Vol. 1 -- Page: 10


Short Title: COURTS -- COURT OF APPEALS; NUMBER OF JUDGES; DIVISIONS; QUORUM; ELECTIONS; TERMS; APPOINTMENT. Intent: Code Sections 15-3-1and15-3-4 Amended. Law Number: No. 18 Origin: (Senate Bill No. 59). Type: AN ACT

To amend Title 15 of the Official Code of Georgia Annotated, relating to courts, so as to change the number of Judges of the Court of Appeals; to

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provide that the court shall sit in divisions; to specify the number of Judges which shall constitute a quorum; to provide for the election and term of office of Judges; to provide for the initial appointment of additional judges; to provide for related matters; to provide an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

Title 15 of the Official Code of Georgia Annotated, relating to courts, is amended by striking Code Section 15-3-1, relating to the composition and division of the Court of Appeals, and inserting in lieu thereof a new Code Section 15-3-1 to read as follows:

"15-3-1.

• (a) Composition. The Court of Appeals shall consist of 12 Judges who shall elect one of their number as Chief Judge, in such manner and for such time as may be prescribed by rule or order of the court.

• (b) Divisions. The court shall sit in divisions composed of three Judges in each division. Two Judges shall constitute a quorum of a division. The assignment of Judges to each division shall be made by the Chief Judge, and the personnel of the divisions shall from time to time be changed in accordance with rules prescribed by the court. The Chief Judge shall designate the Presiding Judges of the divisions and shall, under rules prescribed by the court, distribute the cases among the divisions in such manner as to equalize their work as far as practicable.

• (c) How cases heard.

o (1) Each division shall hear and determine, independently of the others, the cases assigned to it, except that the division next in line in rotation and a seventh Judge shall participate in the determination of each case in which there is a dissent in the division to which the case was originally assigned.

o (2) In all cases which involve one or more questions which, in the opinion of the majority of the Judges of the division or of the two divisions plus a seventh Judge to which a case is assigned, should be passed upon by all the members of the court, the questions may be presented to all the members of the court; and if a majority of all the members of the court decide that the question or questions involved should, in their judgment and discretion, be decided by all the members of the court, the case shall be passed upon by all the members of the court, provided that a majority of the Judges passing upon the case concur in the judgment.

o (3) In neither class of cases referred to in this subsection shall there be oral argument except before the division to which the cases are originally assigned.

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• ( d) How decision overruled. It being among the purposes of this Code section to avoid and reconcile conflicts among the decisions made by less than all of the Judges on the court and to secure more authoritative decisions, it is provided that when two divisions plus a seventh Judge sit as one court the court may, by the concurrence of a majority, overrule any previous decision in the same manner as prescribed for the Supreme Court. As precedent, a decision by such court with a majority concurring shall take precedence over a decision by any division or two divisions plus a seventh Judge. A decision concurred in by all the Judges shall not be overruled or materially modified except with the concurrence of all the Judges.

• ( e) Quorum. When all the members of the court are sitting together as one court, seven Judges shall be necessary to constitute a quorum. In all cases decided by such court as a whole by less than 12 Judges, the concurrence of at least seven shall be

essential to the rendition of a judgment.

• (f) Oral arguments. The Court of Appeals may hear oral arguments at places other than the seat of government. Reasonable notice shall be given of such hearings.

• (g) Assistance· of other judges; procedure. Whenever the court unanimously determines that the business of the court requires the temporary assistance of an additional judge or additional judges or one additional panel, the court may request the assistance of senior appellate judges as provided in Chapter 3A of this title or senior superior court judges as provided in Code Section 47-23-101. The Judge whose case assignment is transferred to the additional judge shall not vote on the case."

SECTION2.

Said title is further amended by striking Code Section 15-3-4, relating to the election and term of office of Judges of the Court of Appeals, and inserting in lieu thereof a new Code Section 15-3-4 to read as follows:

"15-3-4.

The Judges of the Court of Appeals shall be elected at the general state election to be held on Tuesday after the first Monday in November of the even-numbered years in the manner in which Justices of the Supreme Court are elected. The election of the Judges shall be as follows:

• (1) Successors to the Judges serving in judgeships which existed prior to 1999 shall be elected as follows:

o (A) Successors to any Judges whose terms expired at the end of 1998 shall be elected at the general election in 2004 and each sixth year thereafter;

o (B) Successors to any Judges whose terms expire at the end of 2000 shall be elected at the general election in 2000 and each sixth year thereafter;

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o (C) Successors to any Judges whose terms expire at the end of 2002 shall be elected at the general election in 2002 and each sixth year thereafter; and

o (D) Successors to any Judges whose terms expire at the end of 2004 shall be elected at the general election in 2004 and each sixth year thereafter; and

• (2) Successors to the two judges serving in the judgeships created in 1999 shall be elected at the 2000 general election and each sixth year thereafter.

The terms of the Judges shall begin on January 1 following their election and, except as provided above, shall continue for six years and until their successors are qualified. They

shall be commissioned accordingly by the Governor."

SECTION 3.

The initial judges to serve in the two judgeships created by this Act shall be appointed by the Governor for terms to expire at the end of 2000.

SECTION 4.

This Act shall become effective July 1, 1999.

SECTIONS.

All laws and parts of laws in conflict with this Act are repealed.


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EXHIBIT “I”

Terry, Way, Wilson of Sumter, Thorne, West, Wise, Trammell, Whitley, · Woodliff, Ward, Wilcox, \Vootten, Walker of Monroe, Williams of Laurens, Wright of Floyd, Walker of Wash'gton, Williams of Madison, Wright of Richmond, Waters, Wilson of Gwinnett, Mr. Speaker.

Those absent were Messrs.-

Adams of Elbert,

On motion of Mr. Kelly of Glascock, the reading of the Journal of yesterday's proceedings was dispensed with.

The following bill, which was made the special order for this morning, was read the third time and put upon its passage, to wit:

By Mr. Perry of Hall-

A bill to amend paragraph I, section I, paragraph 5, section 2, and to add a new paragraph to article 6, section 2, to be known as paragraph 9 of the Constitution, so as to provide for the creation of a Court of Appeals, and for other purposes.

The following substitute was offered by Mr. Slaton of Fulton, to wit:

A BILL

To be· entitled an Act to amend paragraph I of section I

of article 6 of the Constitution of this State, and paragraph 5 of section 2 of said article, and to add to said section 2 a paragraph to be known as paragraph 9, so as to provide for the establishment of a Court of Appeals, and to define its powers and jurisdiction; to de-

so h j

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EXHIBIT "I"

JOURNAL OF THE HOUSE.

fine the jurisdiction of the Supreme Court, and for other purposes.

SECTION I. Be it enacted by the General Assembly, That paragraph I of section I of article 6 of the Constitution of this State be amended so that it shall read as follows:

"The judicial powers of this State shall be vested in a Supreme Court, a Court of Appeals, superior courts, courts of ordinary, justices of the peace, commissioned notaries public, and such other courts as have been or may be established by law."

SEC. 2. Be it further enacted, That paragraph 5 of section 2 of article 6 of the Constitution of this State be amended so that it shall read as follows:

"The Supreme Court shall have no original jurisdiction, but shall be a court alone for the trial and correction of errors from the superior courts in all civil cases, whether legal or equitable, originating therein, and in all cases of felony, and for the determination of questions certified to it by the Court of Appeals; and shall sit at the seat of government at such times in each year as are or may be prescribed by law, for the trial and determination of writs of error from the superior courts and of questions certified to it as aforesaid. The provisions of this paragraph shall become effectiYe on the first clay of January, Anno Domini nineteen hundred and seven, but shall not affect cases which, on that date, are pending in the Supreme Court, except that cases then pending therein of the kind of which the Court of Appeals has jurisdiction may be transferred by the Supreme Court to the Court of Appeals. Any case thereafter carried to the Supreme Court which is of the class of which the Court of .\ppeals has jurisdiction may be transferred to the Court of Appeals, under such rules

\VEDNESDAY, JULY 25, 1906.

as the Supreme Court may prescribe, until otherwise provided by law; and the Court of Appeals shall try the cases so transferred."

SEC. 3. Be it further enacted, That the Constitution of this State be amended by adding to section 2 of article 6 a paragraph to be known as praagraph 9, which shall read as follows :

"The Court of Appeals shall, until otherwise provided by law, consist of three judges, of whom two shall constitute a quorum. It shall sit at the seat of government and at such other places as may be prescribed by law. The Governor shall, immediately on the taking effect of this amendment, appoint the judges of the Court of Appeals. 'I'he terms of the judges so appointed shall begin on the first day of January, Anno Domini nineteen hundred and seven, and shall be respectively two years, four years, and six years. The persons so appointed shall, among themselves, determine by lot which of the terms each shall have, and they shall be commissioned accordingly. All terms after the expiration of said terms (except unexpired terms) shall be for six years each, and the successors of said judges shall be elected by the people. The times and manner of such elections, and the mode of filling a vacancy which causes an unexpired term, shall be the same as :are or may be provided for by the laws relating to the election and appointment of Justices of the Supreme Court. The Court of -Appeals shall have jurisdiction for the trial and correction of errors from the superior courts in all cases in which such jurisdiction is not conferred by this Constitution on the Supreme Court, and from the city courts of Atlanta and Savannah, and such other like courts .as have been or may be hereafter established in other cities, except that where, in a case pending in the Court of Appeals, a question is raised as to the construction of a pro-

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JouRNAL OF THE HOUSE.

· vision of the Constitution of this State, or of the United States, or as to the constitutionality of an Act of the General Assembly of this State, and a decision of the question is necessary to the detennination of the case, the Court of Appeals shall so certify to the Supreme Court, and thereupon a transcript of the record shall be transmitted to the Supreme Court, which, after having afforded to the parties an opportunity to be heard thereon, shall instruct the Court of Appeals on the question so certified, and the Court of Appeals shall be bound by the instruction so given. But if by reason of an equal division of opinion among the Justices of the Supreme Court, no such instruction is given, the Com:t of Appeals. may decide the question. The Court of Appeals may at any time certify to the Supreme Court any other questions of law concerning which it desires the instruction of the Supreme Court for proper decision ; and thereupon the Supreme Court may give its instruction on the questions certified to it, which shall be bindit1g on the Court of Appeals in such case. The manner of certifying questions to the Supreme Court by the Court of Appeals, and the subsequent proceedings in regard to the same in the Supreme Court, shall be as the Supreme Court shall by its mies prescribe, until otherwise provided by law. Xo affirmance of the judgment of the court below, in cases pending in the Court of Appeals, shall result from delay in disposing of questions certified by the Court of Appeals to the Supreme Court. All writs of error in the Court of Appeals, when received by its clerk during a term of the court, and before the docket of the term is by order of the court closed, shall be entered thereon, and when received at any other time shall be entered on the docket of the next term, and they shall stand for hearing at the term for which they are so entered, under such rules as the court may prescribe, until

\VtDNESDAY, }ULY 25, 1906.

otherwise provided by law. The Court of Appeals shall appoint a clerk and a sheriff of the court. The reporter of the Supreme Court shall be reporter of the Court of Appeals, until otherwise provided by law. The first term of the Court of Appeals shall be held on the first Monday in January, Anno Domini nineteen hundred and seven. The laws relating to the Supreme Court, as to qualifica

-tions and salaries of the judges, the designation of other judges to preside when members of the court are disquali

. fied, the powers, duties, salaries, fees and term of officers, the mode of carrying cases to the court, the p01.vers, practice, procedure. times of sitting, and costs of the court, the publication of reports of cases decided therein, and in all other respects, except as otherwise provided in this Constitution, and until otherwise provided by law, shall apply to the Court of Appeals, so far as they can be made to apply. The decisions of the Supreme Court shall bind the Cotlrt of Appeals as precedents."

Ste. 4. Be it further enacted, That whenever the above proposed amendment to the Constitution shall be agreed to by two-thirds of the members elected to each of the two houses of the General Assembly, and the same has been entered on their Journals, '''ith the yeas and nays taken thereon, the Governor shall, and he is hereby authorized and instructed, to cause said amendment to be published in at least two newspapers in each congressional district in this State for the period of two months next preceding- the time of holding the next general election.

Ste. 5. Be it further enacted, That the above proposed amendment shall be submitted for ratification or rejection to the electors of this State at the next general election to be held after publication, as provided in the fourth section of this Act, in the several election districts. of this State, at which election every person shall be qualified to

470 JOURNAL OF THE HOUSE ..

vote who is entitled to vote for members of the General Assembly. All persons voting at said election in favor of adopting the proposed amendment to the Constitution shall have written or printed on their ballot the words, "For Court of Appeals amendment," and all persons opposed to the adoption of said amendment shall have written or printed on their ballots the words "Against <:;ourt of Appeals amendment."

SEc. 6. Be it further enacted, That the Governor he, and he is, hereby authorized and directed to provide for the submission of the amendment proposed in the first, second and third sections of this Act to a vote of the people as required by the Constitution of this State in paragraph I of section I of article 13, and by this Act, and if ratified, the Governor shall when he ascertains such ratification from the Secretary of State, to whom the returns shall be referred in the manner as in cases of elections for members of the General Assembly to co~nt and ascertain the results, issue his proclamation for one insertion in one of the daily papers of this State, announcing such results and declaring the amendment ratified.

SEC. 7. Be it further enacted, That all laws and parts of laws in conflict with this Act be, and the same are, hereby repealed.

On motion of Mr. Felder, the Speaker resolved the House into a Committee of the Whole for a considera-,, . tion of the bill, and designated as chairman Mr. Knight of Berrien.

After a consideration of the bill the committee arose and through its chairman reported the bill back to the House with the recommendation that debate on the bill be extended.

WEDNESDAY, JULY 25, Igo6. 471

The' House again went into the Committee of the Whole, and Mr. Knight took the chair.

After further consideration of the bill the committee arose, and reported the same back to the House with the recommendation that it do pass by substitute as amended.

Mr. Knight moved that the time of the session be extended until the bill could be disposed of, which motion prevailed.

The following amendments, which were offered to the substitute, were lost, to wit:

By Mr. Alexander of DeKalb-

To amend by striking out sections I, 2 and 3, and substituting therefor the following: "Be it enacted, That article 6, section r, paragraph 5 of the Constitution, be amended by adding the following ·words : 'But if the General Assembly shall create any other appellate court it shall have power to define what cases shall be reviewed by the superior court, and what cases by such other court. But the General Assembly shall never empower any court to correct errors of fact or review the finding of a jury, and the Supreme Court shall never exercise such power.' "

The following amendments were offered and adopted, to wit:

By Mr. Felder of Bibb-

To amend section 3 of the substitute as follows: "Strike all of said section beginning with the words 'The Governor.' in the fifth line of said section, down to and including the words 'the people,' in line eleven, and insert

472 JOURNAL OF THE HOUSE.

in lieu thereof the following words : 'The said judges shall be elected by the pe.ople, and shall hold their office for six years and until their successors are elected and qualified. The first election under this amendment shall be held on the first Tuesday after the first Monday in November, 1906, and the Governor shall immediately upon the taking effect of this amendment call said election, and it shall be held in the same manner as elections for judges of the Supreme Court are now held. The returns of said special election shall be made to the Secretary of the State and canvassed by said officer, and the Governor shall issue commissions to those persons declared elected by said Secretary of State. The terms of office of the judges so elected at said special election shall begin on the first day of January, Anno Domini, 1907.'" ·

Also, to amend by striking the word "such," before "election." in line twelve, and inserting in lieu thereof the words "all other."

By Mr. Hall of Bibb-

To amend section 2 by inserting in line four of said section, after the word "errors," in said line, the following words, to wit: "in law and equity."

Also to amend by inserting in line five, after the word ·"therein," the words "or carried thereto from the court of ordinary."

Also to amend by inserting in line five, after the word "of," the following words: "convictions of a capital."

By Mr. Kelly of Glascock-

To amend section 3 by inserting after the word "errors," in line fifteen, the words "in law and equity."

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' WEDNESDAY, JULY 25, 1906. 473

Also tci amend section 3 by inserting after the word "cities," in line seventeen, and before the word "except," in line eighteen, the words "and in such other cases as may hereafter be prescribed by law."

By Mr. Nowell of Walton-

To amend by striking the word "may," in line twentynine, section 3, ~nd inserting the word "shall."

The report of the committee, which was favorable to the passage of the bill by substitute, was agreed to as amended.

On passage of the bill the ayes and nays were ordered, and the vote was as follows :

Those voting in the affirmative were Messrs.-

Adams of Elbert, Christopher, Adams of Wilkinson. Clark, Almand, Clements, Anderson of Bulloch, Clifton, Anderson of Chatham, Connor, Arnold, Conley, Ashley, Cook, Bacon, Barksdale, Beall of Paulding, Beauchamp, Bell of Fulton, Blackbum, Booker, Bowden, Boykin, Branch, Brinson, Buchanan of Ware, Bush, Callaway, Calvin,

Covington, Cureton, Davis of Bibb, Davis of Burke, Donalson, Daugharty, Duckett, Duggan, Dunbar, Edwards, Felder, Flanders, Flynt, Fraser, Fussell,

Galloway, George, Graham, Green, G1 ovenstein, Hall, Harrell, Harris, Hill, Hines, Holder of Jackson, Horn, Humber, Jackson of Jones, Jackson of Muscogee, Jenkins, Johnson of Baker, Johnson of Crawford, Kelly, Kendrick, King, Knight of Berrien,

474 JouRNAL of' THE Hous:e.

Knight of Polk, Nolan, Seymour, Land, Nowell, Simmons, Lane, Orr, Singletary, Lawrence, Owen, Smith of Calhoun, Leigh, Parker, Smith of Greene, Little. Perry, Smith of McDuffie, Longino, Persons, Smith of Tattnall, Longley, Powell, Steed, Lumpkin Prescott, Stovall, McElmurray, Procto~, Swilling, McMichael, Rainey of Terrell, Taylor, McMullan, Ramsey of Jefferson, Terry, McRee, Ramsey of Murray, Thorne, Mann of Catoosa, Revill, ·Walker of Wash'gton, Martin, Richardson, Waters, Matthews, Roper, Way, Maxwell, Rogers, Whitley, Mayson, Rose, Wilcox, Milikin, Rountree of Emanuel, Williams of Laurens, Mitchell of Taylor, Rountree of Thoma!<. Williams of Madison, Mitchell of Thomas, Rucker, Wilson of Sumter, Mizell, Rudicil, Wise, Mobley, Russell, Wootten, Moore of Cherokee, Saffold, Wright of Floyd, Moore of Columbia, Shultz, Wright of Richmond, Mooty, Sears, Mr. Speaker.

Those voting in the negative were Messrs.-

Akin. Alexander,

Corn, Trammell,

Those not voting were Messrs.-

Alford, Black, Buchannon of Early, Butts, Derrick, Griffin, Hardman, Hayes, Holder of Floyd,

Hutcheson, Reaves, Lewis, Scruggs, McClure, ·Spence, Mann of Dougherty, Sutton, Mitcham, Ward, Nix, Walker of Monroe\ Overstreet, West, Porter, vVilson of Gwinnett, Rainey of Schley, Woodliff,

\VEDNESDAY, }ULY 25, lgOO. 475

The verification of the roll-call was dispensed with by unanimous consent.

On passage of the bill the ayes were 144, nays 4.

The bill having received the requisite constitutional majority was passed by substitute as amended.

The following message was received from the Senate through Mr. N orthen, the Secretary thereof:

Mr. Speaker:

The Senate has passed by the requisite constitutional majority the following Senate bills, to wit:

A bill to amend Act establishing a system of public schools in Fort Gaines.

A bill to create a new judicial circuit.

A bill to fix the salaries of the Commissioner of Agriculture and Commissioner of Pensions.

A bill to provide for the entering of all executions on general execution docket.

A bill to amend section 1351 of the Code.

A bill to amend paragraph 4, section 2, article 5 of the Constitution.

A bill to provide that all criminal cases shalt be called in the order in which they appear on docket.

A bill to amend Act incorporating the city of Cordele.

The Senate has also passed by the requisite constitutional majority the following bills of the House, to wit:

EXHIBIT “J”

TUESDAY, JULY 31, 1906. 581

Smith of Calhoun, Smith of Greene, Smith of McDuffie, Smith of Tattnall, Spen~e, Steed, Stovall, Sutton, Swilling, Taylor, Terry,

Thorne, Williams of Laurens, Trammell, Williams of Madison, Ward, Wilson of Gwinnett, • Walker of Monroe, "Wilson of Sumter, WalkerofWash'gton, Wise, \Vaters, \V oodliff, Way, Wootten, West, Wright of Floyd, Whitley, Wright of Richmond, Wilcox, Mr. Speaker.

The Journal of yesterday's proceedings was read and confirmed.

The following resolution was read and ref erred to the Committee on Rules, to wit:

By Mr. Kelly of Glascock-

A resolution fixing the sessions of the House.

By unanimous consent the following bill was taken up for the purpose of agreeing to the Senate amendments, to wit:

By Mr. Perry of Hall-

A bill to amend paragraph I, section I, article 6 of the Constitution, and paragraph 5, section 2, article 6, and to add to said section a paragraph to be known as paragraph 9, so as to create a Court of Appeals.

The Senate proposed to amend as follows:

To amend section 3 by striking all of the words from and including the words, "The said judges shall be elected," etc., to and including the words "Anno Domini· 1907,'' and substituting the following words: "The Governor shall imrnedia,tely on the ratification of this amend-

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ment call an election, to be held on Tuesday after the first Monday in November, A. D. 1906, at which the judges of the Court of Appeals shall be elected in the manner in which justices of the Supreme Court are elected. The returns of said election shall be made to the Secretary of State. The terms of office of the judges then elected shall begin on the first day of January, A. D. 1907, and shall continue respectively two, four and six years and until their successors are qualified. The persons so elected shall, among themselves, determine by lot which · of the terms each shall have, and they shall be commissioned accordingly by the Governor. All terms of the judges of the Court of Appeals after the expiration of the terms aforesaid (except unexpired terms), shall continue si.x years and until their successors are qualified."

The following amendment offered by the House to the Senate amendment was adopted, to wit:

To amend the Senate amendment by adding after the words "Secretary of State," in line 5 of said amendment the following words, to wit: "And the Secretary of State shall canvass the returns and declare the three persons receiving the greatest number of votes to be elected."

On the adoption of the Senate amendment as amended the ayes and nays were ordered, and on taking the ballot viva voce, the vote was as follows:

Those voting in the affirmative were Messrs.-

Adams of Elbert, ·Adams of Wilkinson, Alexander, Almand,

Arnold, Ashley, Bacon, Barksdale,

Beall of Paulding, Beauchamp, Bell of Fulton, Black,

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Tu~SDAY, JuLY 31, 19o6. 583

Blackbum, Humber, Proctor, Bowden, Hutcheson, Rainey of Schley, Boykin, Jackson of Jones, Ramsey of Jefferson, . Branch, Jackson of Muscogee, Ramsey of Murray, Buchanan of Ware, Jenkins, Reaves, Buchannon of Early, Kelly, Richardson, Bush, Kendrick, Roper, Callaway, King, Rogers, Calvin, Knight of Berrien, Rose, Christopher, Knight of Polk, Rountree of Emanuel, Clark, Land, Rucker, Clements, Lane, Rudicil, Clifton, Lawrence, Shultz, Connor, Leigh, Scruggs, Conley, Lewis, Sears, Cook, Little, Seymour, Corn, Longino, Simmons, Covington, Longley, Smith of Calhoutt, Cureton, Lumpkin Smith of Greene, Davis of Bibb, McE!murray, Smith of McDuffie, • Davis of Burke, Mc Michael, Smith of Tattnall, Derrick, McMullan, Spence, Daugharty, McRee, Stovall, Duckett, Martin, Sutton, Duggan, Matthews, Swilling, Dunbar, Mayson, Taylor, Edwards, Milikir>- Terry, Felder, Mitcham, Thorne, Flanders, Mitchell of Taylor, vv·ard, Flynt, Mitchell of Thomas, Walker of Monroe, Fraser, Mizell, Walker of Wash'gton, Fussell, Mobley, Waters, Galloway, Moore of Cherokee, Way, Graham, Moore of Columbia, West, Green, Mooty, Whitley, Grovenstein, Nix, Wilcox, Hall, Nolan, Williams of Laurens, Hardman, Nowell, Williams of Madison, Harrell, Overstreet, Wilson of Gwinnett, Harris, Owen, Wise, Hayes, Parker, Woodliff, Hill, Perry, Wootten, Hines, Persons, Wright of Floyd, Holder of Jackson, Porter, Wright of Richmond, Horn, Prescott, Mr. Speaker.

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T~ose voting in the negative were Messrs.-

Akin,

Those not voting were Messrs.-

Alford, Holder of Floyd, Rainey of Terrell, Anderson of Bulloch, Johnson of Baker, Revill, Anderson of Chatham, Johnson of Crawford, Rountree of Thomas, Booker, McClure, Russell, Brinson, Mann of Catoosa, Saffold, Butts, Mann of Dougherty, Singletary, Donalson, Maxwell, Steed, George, Orr, Trammell, Griffin, Powell, Wilson of Sumter,

By unanimous consent the verification of the roll-call was dispensed with:

On the adoption of the amendment as amended the ayes were 147, nays 1.

The amendment was therefore adopted as amended.

The following Senate bill, which was made the special order for this morning, was read the third time and put upon its passage, to wit:

By Mr. Wilcox of the r 5th district-

A bill to amend an Act amendatory of paragraph 2,

section I, article II, of the Constitution approved July 19, 1904, by striking the words "forty-five," in line 7 of section I, and substituting in lieu thereof the words, "forty-six," and for other purposes.

The following substitute which · was offered by the committee was adopted, to wit:

The substitute for Senate bill No. 157:

IN THE SUPERIOR COURT OF FULTON COUNTY STATE OF GEORGIA · PDF fileIN THE SUPERIOR COURT OF...

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