Georgia Court Hears Challenge to Gov’s Appeals Court Appointments

John J. Goger addresses Lita Sullivan's family before the reading of the sentance in the trail of James V. Sullivan. Photo by Zachary D. Porter on 3-14-06

According to the Daily Report, the attorney for a group challenging the governor’s authority to appoint three new judges to the Georgia Court of Appeals clashed with state’s attorneys this week, arguing for a Fulton County judge to step in and declare the appointments unconstitutional.

Wayne Kendall, who represents a half-dozen petitioners demanding that the judgeships be filled by elections, said that he in fact speaks for more than 6 million Georgia voters “who have had the right to vote taken away from them.”

Gov. Nathan Deal had already named Amanda Mercier, Nels Peterson and Brian Rickman to the judgeships, positions which had been created by the General Assembly earlier this year and were due to begin on January 1st. But a planned swearing-in ceremony slated for Tuesday has been postponed.

Before Superior Court Judge Goger, Kendall argued that the Georgia Constitution requires that newly created seats on the Court of Appeals must be filled by elections—unlike vacancies, which the governor may fill with his own selections.

Since the 1983 constitution, the General Assembly has created three new judgeships on the Court of Appeals, and all three were filled by gubernatorial appointment: one by Gov. Zell Miller in 1996, and two by Gov. Roy Barnes in 1999. Those appointments also violated the constitution, Kendall said. The relevant language of the 1983 Constitution states, “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.”

Senior Assistant Attorney General Russell Willard, representing the state along with Assistant AG Susan Haynes, first challenged the petitioners’ standing to challenge the appointments at all. He argued sovereign immunity, citing prior legal precedent barring actions seeking injunctive relief and declaratory relief against government agencies.

The outcome of the dispute awaits the ruling of Judge Goger.