Mitchell v. Wilkerson

Weltner, Justice,

dissenting.

1. Art. II, Sec. II, Par. IV of the Constitution of Georgia of 1983 provides as follows:

The General Assembly is hereby authorized to provide by general law for the recall of public officials who hold elective office. The procedures, grounds, and all other matters relative to such recall shall be provided for in such law.

The term “recall” is defined in Funk & Wagnalls Standard Dictionary as follows: “A system whereby officials may be removed from office by popular vote.” The constitution thus speaks, not of recall petitions, or recall elections, but of recall itself, that is, of removal from public office. We misread its plain language to intrude its requirement of grounds of “such recall” into the procedures (including those relating to recall petitions and recall elections) adopted by the General Assembly to assure a fair and orderly manner of recall.1

The “grounds” for “such recall” (i.e., the basis for removal from public office) as specified by the General Assembly, in accordance with the constitutional requirement, is the vote of a majority of electors in a recall election held upon the procedures prescribed by the Act.

2. “The people’s right to seek recall of its public officers is a substantial right not to be impeded on frivolous ground. ...” Howell v. *610Tidwell, 258 Ga. 246, 247 (368 SE2d 311) (1988).

3. The Constitution of Georgia of 1983, similarly with almost all of Georgia’s constitutions, assures to the people of this state the unfettered right to regulate their internal government.

All government, of right, originates with the people, is founded upon their will only, and is instituted solely for the good of the whole. Public officers are the trustees and servants of the people and are at all times amenable to them.

Art. I, Sec. II, Par. I.

The people of this state have the inherent right of regulating their internal government. Government is instituted for the protection, security, and benefit of the people; and at all times they have the right to alter or reform the same whenever the public good may require it.

Art. I, Sec. II, Par. II.

4. In Bartow County Bank v. Bd. of Tax Assessors, 251 Ga. 831, 833 (312 SE2d 102) (1984), we held:

It has long been the law in Georgia “that Acts of the Legislature are not only presumed to be constitutional, but that the authority of the Courts to declare them void, will never be resorted to, except in a clear and urgent case. . . .” Boston & Gunby v. Cummins, 16 Ga. 102, 105 (1854). Moreover, statutes are to be construed so as to be constitutional whenever possible. . . . This rule is related to the rule of construction that: “In all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly. . . .” OCGA § 1-3-1 (a). ... It follows that, because the General Assembly is presumed to intend all laws it enacts to be constitutional, the courts will choose a constitutional construction which realizes that intent.

Thus we are enjoined by long precedent to seek to uphold the constitutionality of acts of the General Assembly. And we are also enjoined to accord to remedial legislation a broad interpretation, sustaining whenever possible measures designed to remedy specified evils. This case concerns the right of the people to govern their own affairs, through public servants in whom they repose (and continue to repose) their confidence. Particularly in such a case should we follow these longstánding precepts of statutory interpretation.

5. Viewed in the light of these constitutional pronouncements, *611and of the high purposes of the recall provision, I suggest that the Act is clearly constitutional. The General Assembly has met every constitutional requirement — including the statutory specification of “grounds, and all other matters relative to such recall.”

Decided October 6, 1988 Reconsideration denied October 26, 1988. Mullins, Whalen & Shepherd, Andrew J. Whalen III, for Mitchell. Rod G. Meadows, Richard D. C. Schrade, Jr., Kendric E. Smith, for Wilkerson. Byrd & Anthony, Charles W. Byrd, Garland T. Byrd, for Folden, Rowe, Garner, Neely, Amos. Jerry Willis, D. Ray McKenzie, Jr., for Kennedy et al. Frank J. Jordan, Jr., Hatcher, Stubbs, Land, Hollis & Rothchild, Clay D. Land, for Parker et al.

I am authorized to state that Chief Justice Marshall joins in this dissent.

Part of these procedures is the requirement of OCGA § 21-4-5 (b)(1)(D), that the “specific reason or reasons advanced by the sponsors for support of the recall” be set out in the recall petition.