ATLANTA, GA (WALB) - Two women are appealing a superior court ruling dismissing their petition to have a member of the Baker County Board of Education removed from office, in the case of:
LILLY ET AL. V. HEARD (S14A0433)
Here is a summary of the facts of the case-
In May 2012, Sharon Heard filedan application to run as a candidate for the Baker County Board of Education.In June 2012, Mendell Cowart, a voter and taxpayer in Baker County, challengedHeard's qualifications, alleging she did not reside in Baker County and was notregistered to vote in Baker County.
On June 18, the County Board of Electionsand Registration held a hearing on Cowart's challenge, during which Cowartargued that "a candidate has to be a registered voter in the county for a yearto be qualified."
The Board determined that Heard transferred her voter'sregistration to Baker County on April 30, 2012. At the hearing's conclusion,the Board entered its decision, finding that Heard had been a resident of BakerCounty for 12 months prior to the election as required by Official Code ofGeorgia § 45-2-1. The Board also found that she was a registered voter at thetime she qualified to run and there was no requirement that she be a registeredvoter for the full 12-month period of residency.
Cowart was told she couldappeal the Board's decision to the Baker County Superior Court within 10 daysof the decision, but she never filed an appeal. On Nov. 6, 2012, Heard waselected to the school board and currently serves as its chair.
On July 10,2013 – more than seven months after Heard took office – two other voters,Nettie Lilly and Janet Anderson – filed a "Verified Complaint: Writ of QuoWarranto, Petition for Writ of Prohibition, Temporary Restraining Order,Injunction and/or Declaratory Relief" that sought to have Heard removed fromher office on the school board. They argued Heard had not met the residencyrequirements to run for the office and that she had therefore been ineligibleto seek the office.
Heard filed a Motion to Dismiss their complaint, arguing itcontained the same grounds for Heard's removal that Cowart had raisedpreviously and that had been heard, considered and decided by the board ofelections almost a year earlier. At the hearing on Heard's Motion to Dismiss,the attorney for Lilly and Anderson presented an amended complaint, allegingthat they had an additional reason for removing Heard from office which wasthat she remained unqualified to serve "as Heard does not reside in theDistrict that she represents." Following the hearing, the judge ruled inHeard's favor and granted her Motion to Dismiss. Lilly and Anderson now appealto the state Supreme Court.
ARGUMENTS: The attorney for Lilly andAnderson argues the trial court erred in dismissing their case. Official Codeof Georgia § 45-2-1 "requires that a person be a resident of the county for 12months and also be a qualified voter entitled to vote in that county," theattorney argues in briefs. "In this case, Appellants [i.e. Lilly and Anderson]alleged that Heard did not meet either of these qualifications." The attorneyalso argues that the petition for a Writ of Quo Warranto, which in Latin means"by what authority," is the proper method to challenge an office holder'seligibility to hold office. Another Georgia statute states that: "The writ ofquo warranto may issue to inquire into the right of any person to any publicoffice the duties of which he is in fact discharging."
The trial court alsoerred in granting the Motion to Dismiss even though an amendment had been filedto the complaint. "Since Heard is not a resident of the district that shepurports to represent, the seat that Heard currently occupies is vacant as amatter of law." Finally, the trial court erred in determining there was"privity" – or a relationship or connection – between Lilly and Anderson, andCowart who challenged Heard before them. There is "no evidence in the record toestablish that Appellants have any connection with the individuals whochallenged the Appellee [i.e. Heard] prior to the election in a pro se mannerwithout the benefit of counsel," the attorney argues.
Heard'sattorney argues the trial court did not err in granting her Motion to Dismissthe case. The trial court correctly determined that the amended petition arosefrom the same facts and circumstances that had already been decided in June2012. The court cases cited by Lilly's attorney are different from the factsand circumstances contained in this case and do not apply. Also, while "underordinary circumstances," a petition for a Writ of Quo Warranto is a propervehicle for a voter and taxpayer to contest an elected official'squalifications to hold office, "the facts and procedural history that areunique to this case are not ordinary and are clearly distinguishable from the factsand procedural history contained in the litany of cases cited by thePetitioners," Heard's attorney argues in briefs. "In Heard's case, the verysame allegations challenging Heard's residency being raised by the Petitionersto the trial court were previously heard by the Board on June 18, 2012 anddecided on June 21, 2012" in response to Cowart's complaint. And a "quowarranto proceeding cannot be utilized as a device to rehash the same factualallegations from the very same set of facts that were previously adjudicated…."
The trial court also did not err when it granted Heard's Motion to Dismiss eventhough an amendment to the complaint had been filed. The amended petition didnot in fact add a new claim, but instead argued the same facts and circumstancesthat had already been decided by the elections board.
Finally, the trial courtdid not err in determining that there was a connection between Lilly, Andersonand Cowart. Cowart was a voter and taxpayer who challenged Heard'squalifications for the benefit of all Baker County voters and taxpayers just asLilly and Anderson did. "An elected official should simply not be forced torepeatedly defend against the same claims alleging the same facts and samecircumstances, and there should be finality…," Heard's attorney contends.
Attorney forAppellants (Lilly): Maurice Luther King, Jr.
Attorney for Appellee(Heard): Lawton Heard, Jr.