At first glance, it seems simple: Georgia residents elect judges, except in cases where a seated judge resigns, dies, or is otherwise unable to perform his duties, the governor appoints judges.
Governor Brian Kemp – on announcing that Augusta Judicial Circuit Supreme Court Justice Michael N. Annis resigned on February 1, 2020 and upon the death of Richmond County’s Chief Justice William D. Jennings III on March 10th Jesse Stone appointed and Carletta Sims Brown to replace them.
But Kemp made both appointments after Annis ‘and Jennings’ last term expired on December 31st. Kemp and Georgia Attorney General Chris Carr had no comment when contacted by The Augusta Chronicle.
A May 14 statement from the Georgia Supreme Court may have eased concerns about the expired terms. The court ruled that Kemp was entitled to appoint a successor to Supreme Court Justice Kenneth Blackwell.
John Barrow, a former US official, and Elizabeth Beskin, a former state official, were about to run for Blackwell’s seat in the High Court and sued. They claimed that Georgia voters should have decided who would replace Blackwell. Blackwell was scheduled to vote last spring but instead announced his resignation, which should take effect six weeks before his term ends.
Secretary of State Brad Raffensperger removed Blackwell’s race from the vote, and the ensuing Barrow v Raffensperger case turned into legal controversy when the state Supreme Court ruled in favor of the governor’s appointment.
“This is the new dilemma in Georgia: judges,” said Mercer University School of Law Dean and former Georgia Secretary of State Cathy Cox.
The state’s Supreme Court ruled that Blackwell’s election was rightly removed from the vote as the governor had the power to appoint his successor, Cox said. The court ruled that the governor has the right to make the appointment if a judicial post becomes vacant before the term of office expires.
Many see in the ruling that the governor’s appointments outperform elections, Cox said.
“To put it mildly, it’s controversial,” she said.
The ruling isn’t a year old, but it has already produced strange results, such as Kemp’s appointment of Augusta judges after the term ends, Cox said. Perhaps just as strange was what happened at the Georgia Middle Judicial Circuit, she said.
In that case, Supreme Court Justice Kathy Palmer announced in early 2020 that she would be retiring at the end of her term on December 31, opening her seat for election. Tommy Smith jumped into the race, paid the qualification fee and fought until election day, and he won.
But then Smith got a call from the governor’s office, Cox said. The governor claimed his right to occupy the judge’s office regardless of the election.
The confusion began when Palmer, who was planning to end her term, learned that a Senate seat had been opened for election and resigned from her judge’s office. She couldn’t stay in the bank while running for another state bureau.
Hence Smith’s call from the governor. In the end, Kemp named Smith as his appointment, which couldn’t hurt other than that Smith’s appointment lasted two years. His election victory was on a four-year term, said Cox.
The Barrow Supreme Court majority, against Raffensperger, insisted that governor appointments should not be placed above the electorate’s right to vote. Whenever a judicial post becomes vacant, the governor can appoint the replacement, regardless of how much time remains in the tenure. The majority concluded that the previous judge’s term actually disappears when the judge leaves office.
This logic welcomes abuse, wrote the judge who led the dissent. This could mean that voters can never decide who sits on the bench, as judges can retire at any time and governors can choose their successors.
And what if the governor makes the appointment only after the term of office has expired, asked Judge Brenda Holbert Trammell in her contradiction.
In the Augusta area judges’ case, Kemp did just that.
Three days before Kemp’s appointments were announced, Augusta’s attorney Jack Long sent a letter of request to the Secretary of State. Annis’s term expired on December 31, and the date passed without an appointment by the governor. Raffensperger was obliged to fix a special election for Annis’ seat, Long wrote.
The Barrow vs. Raffensperger case is different from what happened in Augusta, Long told The Augusta Chronicle. The Supreme Court Justice Barrow wanted to replace was still serving his term when Kemp named his successor. But Annis’ term was already over, Long said.
“The question is,” What is a vacancy? “Long said. Georgia law states that the governor will be in default if he doesn’t fill a vacancy. The vacancy has ended, Long said.
Long believes that the precedent that should rule is the Kemp v. Gonzalez is on the state Supreme Court. In the October 8 statement, the court ruled that Kemp could not appoint anyone to succeed the District Attorney of the Western Judicial Circuit because the prosecutor’s term had expired. The governor cannot extend a term of office, the statement said.
The difference between the Barrow v. Raffensperger and Kemp v. Gonzalez cases is that the first involved a judge and the second a district attorney, although the state constitution provides for the same term of office to appoint governor for both.
“That’s what lawyers call splitting hairs,” said Cox, the former foreign secretary.
Whether Annis and Jennings’ successors should be appointed by the governor or by special election should be decided by a court sooner rather than later, Long said. If he’s right, every order and decision Stone and Brown make can be challenged. The long requested Raffensperger has scheduled a special election before legal action can be taken.
Raffensperger’s office had no comment last week when he was contacted by The Chronicle.