Delay v. Sutton, 818 S.E.2d 659, 304 Ga. 338 (2018)

Aug. 27, 2018 · Supreme Court of Georgia · S18A0765.
818 S.E.2d 659, 304 Ga. 338

DELAY et al.
v.
SUTTON, Commissioner.

S18A0765.

Supreme Court of Georgia.

Decided: August 27, 2018.

Angela Rene Fox, James Darren Summerville, Kurt Gregory Kastorf, THE SUMMERVILLE FIRM, LLC, 400 Colony Square, Suite 2000, 1201 Peachtree Street, NE, Atlanta, Georgia 30361, for Appellant.

Dwight L. Thomas, 2296 Henderson Mill Road, Suite 407, Atlanta, Georgia 30345, for Appellee.

MELTON, Presiding Justice.

**338This case concerns the constitutionality of the appointment process created by House Bill 597 (HB 597), a DeKalb County local law *660that delegates to private entities the power to appoint certain **339members of the DeKalb County Board of Ethics.1 Prior to the approval of HB 597 by DeKalb County voters in a 2015 referendum, appointments to the Board of Ethics had been made by the DeKalb County CEO and the County Commissioners. HB 597 changed this process by allowing four of the seven appointments to be made by private entities, and by eliminating the practice of allowing the CEO or County Commissioners to make such appointments.2 **340The new Board of Ethics was established on January 1, 2016, pursuant to HB 597. On March 9, 2016, Sharon Barnes Sutton, a sitting DeKalb County Commissioner with pending ethics complaints against her, filed an action for a writ of quo warranto3 to challenge the makeup of the Board, claiming that HB 597's delegation of power to private organizations to appoint four members of the Board of Ethics was unconstitutional.4 See HB 597, supra, at § 22A (h) (2) (B) (i), (ii), (v), and (vi). The trial court agreed with *661Sutton that the appointment process created by HB 597 was unconstitutional and granted the writ of quo warranto as to the four challenged Board members. The Board appeals from this ruling,5 and, for the reasons that follow, we affirm.

The Board argues that the trial court erred in granting the writ of quo warranto on the basis that the private organization appointment provisions of HB 597 ran afoul of Ga. Const. of 1983 Art. I, Sec. II, Pars. I and II. We disagree.

This Court has previously examined issues very similar to those presented in the instant case in Rogers v. Med. Ass'n of Ga., 244 Ga. 151, 259 S.E.2d 85 (1979). Rogers involved a state law that required the Governor to accept recommendations made by a private organization-the Medical Association of Georgia-to fill vacancies to the State Board of Medical Examiners. In concluding that the statute unconstitutionally delegated the power of appointment to a public office to a private organization, this Court explained:

Fundamental principles embodied in our constitution dictate that the people control their government. "All government, of right, originates with the people, is founded upon their will only, and is instituted solely for the good of the **341whole. Public officers are the trustees and servants of the people, and at all times, amenable to them." Code Ann. § 2-201.[6 ]"The people of this State have the inherent, sole and exclusive right of regulating their internal government and the police thereof ..." Code Ann. § 2-202.[7 ] This is accomplished through elected representatives to whom is delegated, subject to constitutional limitations, the power to regulate and administer public affairs, including the power to provide for the selection of public officers.
"The General Assembly shall have the power to make all laws consistent with this Constitution, and not repugnant to the Constitution of the United States, which they shall deem necessary and proper for the welfare of the State." Code Ann. § 2-1401.[8 ] These constitutional provisions mandate that public affairs shall be managed by public officials who are accountable to the people. As important as any other governmental power is the power to appoint public officials. They are the persons who control so much of our lives.... In our opinion, it is clear that the constitutional provisions cited above demand that the power to appoint public officers remain in the public domain. The General Assembly may, within constitutional limitations, establish qualifications for public office and designate a governmental appointing authority. But it cannot delegate the appointive power to a private organization. Such an organization, no matter how responsible, is not in the public domain and is not accountable to the people as our constitution requires .... This is violative of our Constitution.

(Emphasis supplied.) Id. at 153-154 (2), 259 S.E.2d 85.

As was the case with the appointed officials in Rogers, the appointed officials to the Board here wield government power. Also as was the case with the statute in Rogers, HB 597 delegates the power of appointment of officials to a public office with governmental *662powers to private organizations that are "not accountable to the people as our constitution requires." Id. at 154 (2), 259 S.E.2d 85. Specifically, four of the appointments to the Board are to be made by **342"the DeKalb Bar Association, cho[osing] [one member] from the attorney members of the association; ... the DeKalb County Chamber of Commerce, [choosing one] member [who] shall not be an attorney; ... Leadership DeKalb [choosing one member]; ... [and] the six major universities and colleges located within DeKalb County (Agnes Scott College, Columbia Theological Seminary, Emory University, Georgia State University, Mercer University, and Oglethorpe University), [collectively choosing one] member [who] shall not be an attorney." HB 597 § 22A (h) (2) (B) (i), (ii), (v), and (vi). As these private entities do not answer to the people as required by our Constitution, they are not authorized to wield the power to appoint public officials to the DeKalb County Board of Ethics.9 See Rogers, supra ; Ga. Const. of 1983 Art. I, Sec. II, Pars. I and II.10

Accordingly, the trial court correctly granted the writ of quo warranto as to the four challenged Board members appointed by private entities pursuant to HB 597, as these appointments were unconstitutional. See Rogers, supra.

Judgment affirmed.

Hines, C J., Benham, Hunstein, Nahmias, Blackwell, Boggs, and Peterson, JJ., concur.