2021 Georgia Code
Title 21 - Elections
Chapter 4 - Recall of Public Officers
§ 21-4-6. Review of Grounds for Recall Petition

1. Within four days after the date of submission of the application for a recall petition for verification, excluding Saturdays, Sundays, and legal holidays, the officer sought to be recalled may file a petition in the superior court of the county in which such officer is domiciled applying for a review of the sufficiency of the ground or grounds for the recall and the fact or facts upon which such ground or grounds are based as set forth in such recall application.
2. The superior court having jurisdiction of a case governed by this chapter shall be presided over by a superior court judge or senior judge.The superior court judge or senior judge who presides over the case shall be selected as set out in subsection (c) of this Code section.
3. Upon the filing of a sufficiency review petition under this Code section, the clerk of superior court having jurisdiction shall immediately notify the administrative judge for the judicial administrative district in which that county lies, or the district court administrator, who shall immediately notify the administrative judge of the institution of proceedings under this chapter.If the county in which the proceedings were instituted is not in the circuit of the administrative judge, the administrative judge shall select a superior court judge from within the district, but not from the circuit in which the proceeding was instituted, or a senior judge who is not a resident of the circuit in which the proceeding was instituted, to preside over the contest.
4. If the administrative judge is a member of the circuit in which the proceeding was filed, or if the other judges of the district are unable or are unwilling to preside over the proceeding, or if the other judges of the district are judges of the circuit in which the proceeding was filed, then the administrative judge shall select an administrative judge of an adjoining district to select a superior court judge from that district, or a superior court judge from the district in which the proceeding was filed, but not the circuit in which the proceeding was filed, or a senior judge who is not a resident of the circuit wherein the proceeding was filed.
5. After a judge has agreed to preside over the case, the administrative judge who selected the judge to hear the matter shall enter an order in the superior court of the county where the proceeding was filed appointing such judge, and such judge shall promptly begin presiding over such proceedings in such court and shall determine same as soon as practicable. Such judge shall be reimbursed for his actual expenses for food and lodging and shall receive the same mileage as any other state officials and employees. Senior judges shall be entitled to compensation and reimbursement as the law provides for senior judge service.
6. Such review shall be limited solely to a review of the legal sufficiency of the recall ground or grounds and the legal sufficiency of the alleged fact or facts upon which such ground or grounds are based as set forth in such recall application. The review of such alleged fact or facts shall include a determination of whether probable cause exists to believe that such alleged fact or facts are true. The burden shall be on the petition chairperson to prove that such probable cause exists. The judge shall consider such review petitions on an expedited basis. Discovery shall be permitted but shall not delay the consideration of the review petition by the judge. The judge may enter such orders as the judge deems necessary and appropriate to expedite any discovery and the consideration of the review petition.
7. During the pendency of the review by the superior court, all other recall proceedings shall be suspended. If a ruling of sufficiency is rendered by such judge, then recall proceedings shall continue in the manner provided for in this chapter. The time for circulating a recall petition after the review of the sufficiency petition shall begin from the date of the order of the superior court or the issuance of recall petition forms, whichever is later, notwithstanding the fact that recall petition forms were issued before the filing of the petition for review of the sufficiency of the recall application. Valid signatures obtained on a recall petition prior to the filing of a petition for review of the sufficiency of a recall application shall be counted. The officer sought to be recalled may file a discretionary appeal in the Supreme Court of Georgia within ten days after the date of an order finding a recall application sufficient, excluding Saturdays, Sundays, and legal holidays, and such court shall consider such appeal on an expedited basis. The filing of such appeal shall not operate to stay the recall proceedings. If a ruling of insufficiency is rendered by such judge, then a discretionary appeal may be filed in the Supreme Court of Georgia within ten days after the date of such ruling, excluding Saturdays, Sundays, and legal holidays, and such court shall consider such appeal on an expedited basis.

(Code 1981, §21-4-6, enacted by Ga. L. 1989, p. 1721, § 1; Ga. L. 1990, p. 1939, §§ 5, 6; Ga. L. 1991, p. 608, § 3; Ga. L. 1998, p. 1107, § 1.)

- Ga. L. 1990, p. 1939, § 8, not codified by the General Assembly, provides that the Act shall only apply to recall proceedings under Chapter 4 of Title 21 which are instituted on or after July 1, 1990.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, cases decided prior to the 1989 revision of this chapter are included in the annotations for this Code section.

- The recall "condition" provided in O.C.G.A. § 21-4-6(f) is not unconstitutional as denying an elected official an opportunity for a judicial hearing to determine the truth or falsity of the alleged facts upon which the recall application is based. Collins v. Morris, 263 Ga. 734, 438 S.E.2d 896 (1993).

Rules of evidence are applicable in a hearing to determine the sufficiency of a recall application. DeLong v. Welch, 272 Ga. 730, 533 S.E.2d 724 (2000).

- To determine if the "fact or facts upon which such ground or grounds are based" are legally sufficient, a court should consider the following: 1) assuming the fact or facts to be true, do they allege misconduct which constitutes a legally sufficient ground for recall according to the statutory definition of that term; 2) if so, are the fact or facts stated with "reasonable particularity." Brooks v. Branch, 262 Ga. 658, 424 S.E.2d 277 (1993).

Since the factual allegations were either a mere conclusion, lacking reasonable particularity, or failed to allege conduct which would constitute one of the statutory grounds for recall, they were legally insufficient to support grounds for recall. Brooks v. Branch, 262 Ga. 658, 424 S.E.2d 277 (1993).

- Because neither discovery nor an evidentiary hearing is permitted at the review stage of the recall proceedings, it is imperative that the application state with clarity and specificity the facts supporting the grounds for recall such that both the public and the official sought to be recalled are properly notified of the violation alleged to have been committed. The standard for determining the "legal sufficiency" of a factual allegation is whether it states "with reasonable particularity a ground for recall." Davis v. Shavers, 263 Ga. 785, 439 S.E.2d 650 (1994).

- Trial court did not err in applying the "reasonable grounds" definition of probable cause in determining whether there was probable cause to believe that the factual allegations in a recall application were true. DeLong v. Welch, 272 Ga. 730, 533 S.E.2d 724 (2000).

- Where a petition under the Recall Act of 1989, O.C.G.A. § 21-4-1 et seq., was filed against a county school board member, the allegations of the petition were nothing more than mere conclusions and failed to set out the alleged fact or facts upon which such ground or grounds are based. Hamlett v. Hubbard, 262 Ga. 279, 416 S.E.2d 732 (1992).

Conduct of a public official who participates in a closed meeting that is required by law to be open can become a "ground for recall" under the Recall Act, O.C.G.A. § 21-4-1 et seq., if the circumstances of that participation come within the definition of "grounds for recall." Steele v. Honea, 261 Ga. 644, 409 S.E.2d 652 (1991).

- Allegations made in recall petitions are not absolutely privileged, but are only conditionally privileged as "comments upon the acts of public men in their public capacity and with reference thereto." Davis v. Shavers, 225 Ga. App. 497, 484 S.E.2d 243 (1997), aff'd, 269 Ga. 75, 495 S.E.2d 23 (1998).

- Recall applications based on a violation of the Open Meetings Act, O.C.G.A. T. 50, Ch. 14 were not legally insufficient because they did not specify dates and places, did not positively allege that a quorum was present at the closed meeting, and that the violation was willful and knowing. Phillips v. Hawthorne, 269 Ga. 9, 494 S.E.2d 656 (1998).

RESEARCH REFERENCES

ALR.

- Sufficiency of particular charges as affecting enforceability of recall petition, 114 A.L.R.5th 1.

Sufficiency of technical and procedural aspects of recall petitions, 116 A.L.R.5th 1.