Judge Will Rule Monday on Bid to Force Election for Resigning Justice's Seat
Lawyers for two Georgia Supreme Court hopefuls said Secretary of State Brad Raffensperger had no authority to cancel an election for the seat of Justice Keith Blackwell in order to let the governor choose his replacement.
March 13, 2020 at 03:07 PM
4 minute read
A Fulton County judge said she'll decide Monday morning whether to order the secretary of state to allow candidates to run for a seat on the Georgia Supreme Court that will be vacant in November.
Lawyers representing two would-be candidates for the seat argued that Gov. Brian Kemp and Secretary of State Brad Raffensperger "illegally manipulated" the system to deny voters the right to select a replacement for Justice Keith Blackwell, who last month announced he will step down effective Nov. 18.
Former Congressman John Barrow and attorney Beth Beskin claim they were denied the right to seek office when Raffensperger refused to let them qualify to run for the seat, saying in a letter to Barrow that Raffensperger thought it was "prudent" to cancel the election because Kemp was going to appoint Blackwell's successor.
Lawyers for Barrow and Beskin subpoenaed Blackwell, Raffensperger, Kemp's executive counsel David Dove and the head of the state Judicial Nominating Commission to appear at Friday's hearing, but they did not appear, instead submitting stipulated statements to the court.
The judicial hopefuls have filed mandamus petitions asking Fulton County Superior Court Judge Emily Richardson to order Raffensperger to reopen qualifications, which ended last Friday.
Beskin's lawyer, Cary Ichter, and Barrow's attorney, Lester Tate, said Blackwell's resignation letter and stipulation proved the justice continues to serve and fulfill all his duties, and will continue to do so until he leaves in November.
"The seat is not now and has not been vacant," said Ichter, and the governor has no authority to halt an election to fill a seat that is already occupied.
"The vacancy is not effective until the resignation is effective," he said.
Blackwell's stipulation made clear that he is still hearing cases, authoring opinions and drawing a state paycheck, Ichter said.
"That is not a description of the activities of someone who has vacated their position," Ichter said.
"The only inference is that there's been a systemic manipulation of the Georgia Constitution," said Barrow's attorney, Lester Tate.
Deeming Blackwell's letter announcing his intention to resign six weeks before his term would expire in November in no way creates a vacancy the governor can fill instead of the voters, Tate said.
"This case involves a twisting of words to thwart the plain meaning of the word 'vacancy,'" he said.
Raffensperger is represented by the state Law Department, and Senior Assistant Attorney General Russ Willard said the decision to bar the petitioners' from qualifying was clearly within the secretary of state's authority.
"They may not like the way the secretary of state has exercised his discretion," Willard said.
"The fact that Justice Blackwell's letter of resignation has been accepted by the governor is what created the vacancy," he said.
There is no mention in the Constitution as to a required timeframe for the announcement of a judicial resignation to constitute a vacancy the governor can fill, Willard said.
"A vacancy is created by a resignation when it is accepted, not when it is tendered," he said.
The statute regarding such appointments "is troublesome on one level, because the voters expected to vote on May 19," Willard said.
"But what they gloss over is that there is a vacancy here," he said, pointing to case law he said backed up his definition of "vacancy" in judicial elections.
The appointment process was authorized by the 1983 Georgia Constitution, Willard said.
Protestations that the people are being denied their right to vote are misplaced, he said.
"The people had their say in 1983," Willard said.
Richardson said she would consider the arguments and briefs over the weekend and is well aware that any ruling will go before the Georgia Court of Appeals.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllFederal Judge Rejects Call to Reopen Voter Registration in Ga. After Hurricane Helene
4 minute readGeorgia Removed From Lawsuit Challenging Student Loan Forgiveness; Case Transferred to Missouri
Fulton Judge Considers Whether to Clarify 2 New Ga. Election Certification Rules
5 minute readTrending Stories
Who Got The Work
Attorneys from Quinn Emanuel Urquhart & Sullivan and Irell & Manella have stepped in to defend Foresight Diagnostics in a pending trade secrets lawsuit. The action, which is sealed, was filed Aug. 29 in California Northern District Court by Richards, Layton & Finger and Wilmer Cutler Pickering Hale and Dorr. The case, assigned to U.S. District Judge Eumi K. Lee, is 5:24-cv-06117, Roche Molecular Systems, Inc. et al v. Foresight Diagnostics Inc. et al.
Who Got The Work
David A. Robinson, John F. Wood and Brendan H. Connors from Holland & Knight and attorneys from Proskauer Rose have entered appearances for Scientific Drilling International, S. Westley Shedd, Pamela Pierce and other defendants, respectively, in a pending shareholder lawsuit. The suit was filed Aug. 29 in California Central District Court by Umhofer, Mitchell & King on behalf of Matthew D. Van Steenwyk and Gretchen M. Van Steenwyk-Marsh. The suit accuses the controlling shareholder of Scientific Drilling of self-dealing. The case, assigned to U.S. District Judge Fernando L. Aenlle-Rocha, is 2:24-cv-07401, Matthew D. Van Steenwyk et al v. Kedrin E. Van Steenwyk et al.
Who Got The Work
Constangy, Brooks, Smith & Prophete partners Laura A. Balson and Ashley L. Orler have entered appearances for Avfuel Corporation in a pending data breach class action. The case, filed Aug. 30 in Michigan Eastern District Court by Kopelowitz Ostrow PA, centers on a 2024 cyberattack that allegedly exposed the personally identifying and private data of 'potentially billions of individuals.' The case, assigned to U.S. District Judge Mark A. Goldsmith, is 2:24-cv-12274, Clark III v. Avfuel Corporation.
Who Got The Work
Stephanie Lamerce of Duane Morris has entered an appearance for MillerKnoll, the Michigan-based furniture company formerly known as Herman Miller, in a pending website accessibility class action. The complaint, filed Aug. 30 in New York Eastern District Court by Stein Saks, contends that the defendant's website is inaccessible to screen readers and denies full access to blind and visually-impaired individuals. The case, assigned to U.S. Magistrate Judge Cheryl L. Pollak, is 1:24-cv-06106, Hernandez v. Millerknoll, Inc.
Who Got The Work
General Motors has turned to attorney Nancy D. Green of Ricci Tyrrell Johnson & Grey to defend a pending breach-of-warranty lawsuit. The case, for claims under the Magnuson-Moss Warranty Act, was filed Aug. 30 in Pennsylvania Eastern District Court by the Lemon Law Group Partners on behalf of the purchaser of a new 2022 GMC Sierra 1500 vehicle. The case, assigned to U.S. District Judge Jeffrey L. Schmehl, is 5:24-cv-04595, Fey v General Motors LLC.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250