Monday, July 14, 2008

Powell and the Law

The frenizied howling over Secretary of State Karen Handel's rejection of Democratic PSC candidate Jim Powell continues.

For some of the firebreathers, the rhetoric has moved beyond comparisons to infamous Florida Secretary of State Katherine Harris to an affinity with third world dictators.

Fueling some of the anger is the apparent weirdness of the situation. So, let's take a layman's look at what the law says and if it answers three of the more popular inquiries.

Why would Handel submit the case to an Administrative Law Judge if she was just going to reject the decision?

Simply put, because the law requires it. O.C.G.A. 21-2-5 states "Upon his or her own motion or upon a challenge being filed, the Secretary of State shall notify the candidate in writing that his or her qualifications are being challenged and the reasons therefor and shall advise the candidate that he or she is requesting a hearing on the matter before an administrative law judge of the Office of State Administrative Hearings pursuant to Article 2 of Chapter 13 of Title 50 and shall inform the candidate of the date, time, and place of the hearing when such information becomes available. The administrative law judge shall report his or her findings to the Secretary of State."

Now here is where it gets weird. The law also allows the Secretary to modify or completely reject the Administrative Law Judge's finding. O.C.G.A. 50-13-41(e)(1) states "A reviewing agency shall have a period of 30 days following the entry of the decision of the administrative law judge in which to reject or modify such decision." In this case the "reviewing agency" is the Secretary herself. As strange as it sounds, she doesn't have to abide by anything the ALJ says.

So why have the Administrative hearing at all?

Because that particular hearing is the last place where evidence can be entered into the record. An ALJ has the power to subpoena, call and question witnesses. The hearing is the record of all evidence in the case. Following the hearing, that record is only item reviewed. No further evidence can be entered.

So what's next?

As we saw today, Powell exercised his right to petition the court for a stay. Once again, we return to O.C.G.A. 21-2-5: "The elector filing the challenge or the candidate challenged shall have the right to appeal the decision of the Secretary of State by filing a petition in the Superior Court of Fulton County within ten days after the entry of the final decision by the Secretary of State." Powell was granted the stay and now has the right to a review. There is no jury. There is no one present unless the judge wants them. The judge only reviews the record from the hearing. Critically for Powell, the judge is not allowed to contradict the Secretary of State's determination of the weight of the evidence. In fact, the judge is only allowed to either affirm the decision or remand for further review unless there has been a pretty drastic violation. A reversal is allowed only if the "substantial rights of the appellant have been prejudiced because the findings, inferences, conclusions, or decisions of the Secretary of State are: In violation of the Constitution or laws of this state; In excess of the statutory authority of the Secretary of State; Made upon unlawful procedures; Affected by other error of law; Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or Arbitrary or capricious or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion."

Clearly tests 1-4 are not applicable. Test 5 (erroneous view of evidence) is where the Powell case lies and that's going to be a tough row to hoe.

So, the bottom line is what Secretary Handel did could be labelled partisan, even dirty, but based on the evidence so far it certainly was within procedure. And given the fairly high standard for reversal, Powell's chances of remaining on the ballot seem to be slim.


Pokerista said...

2 things:

1. All administrative adjudications are generally reviewed under the "arbitrary and capricious" standard. Even though all that other stuff is in there, that's almost always what those who choose to appeal the decision of an administrative body have to argue.

2. I think Powell might be able to argue that Handel made an erroneous interpretation of the law by deciding that the homestead exemption rule trumps the other statute that indicates where the candidate receives mail, pays utilities and taxes, etc. also govern residency determinations. There is no discretion generally afforded to questions of statutory interpretation. That is uniquely within the purview of the courts to decide. If Handel is arguing that one statute trumps the other, and Powell is arguing that they need to be read to be complimentary rather than contradictory, that is probably a de novo issue for the court to decide.

All of this subject to the proviso that I haven't taken administrative law since 1998 and I only attended 5 whole classes even then (though I did get a B+) so, y'know, I may be misremembering. But I think he's got two grounds to appeal and only one of them requires abuse of discretion. The other requires clear error of law.

griftdrift said...

I actually have some experience with this system albeit with another department and I am pretty positive the Administrative Hearing is the only place where it's de nova. The court is really restricted in how it can review these decisions. So I don't think error in the law will hold.

Oh and even the most flexible judge is loathe to reverse in a situation like this. It would set huge precedent. The more likely scenario is a remand with a gentle nudge to the agency to reconsider.

griftdrift said...

Oh and as I mentioned before there is no argument. I don't even think the parties submit briefs but I could be wrong about that. If memory serves, it is absolutely the record from the hearing and nothing else. That's why they hearing is so critical.

Pokerista said...

From Pruitt Corp. v. Ga. Dept. of Community Health, decided by the Ga. Supreme Court in January:

"Judicial review of an administrative decision requires the court to determine that the findings of fact are supported by 'any evidence' and to examine the soundness of the conclusions of law that are based upon the findings of fact."

"The court is statutorily required to examine the soundness of the conclusions of law drawn from the findings of fact supported by any evidence, and is authorized to reverse or modify the agency decision upon a determination that the agency's application of the law to the facts is erroneous."

Also O.C.G.A. 50-13-19(h) provides:

"The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings are...clearly erroneous."

So, sounds like the facts get deference but interpretations of law to apply them to the facts of the case are reviewable for clear error.

Pokerista said...

Oops, meant to link the case I cited.

Here it is.

griftdrift said...

Clear error can be ruled on but clear is a pretty high standard and I don't think its here.

And "substantial rights" is a very high threshold. I'd love to read the opinion on that reverse.

Pokerista said...

All Powell needs to do to show prejudice is show that he's been disqualified from being on the ballot. That won't be a hard hurdle to top. The right to participate in the election and be eligible to win the nomination is pretty clearly a substantial right.

Clear error may be tough, but if the court thinks Handel's interpretation of the statutes is clearly wrong, that's enough to overturn her decision. And then it becomes an appellate problem.

griftdrift said...

The ability to run is only a substantial right if you clearly qualify under the residency requirement. That is the crux of the issue.

The statute clearly states homestead exemption defines residency. It also states the ALJ AND the SOS have the opportunity to consider other evidence but the other statute also clearly states the judge cannot consider what weight the SOS gave to said evidence.

My reading of test 5 is the only way the judge can reverse on evidence is if its obvious the SOS clearly ignored relevant evidence.

Also, from my experience, as rare as what Handel did is, reversal by the Superior court is much much rarer.

Lucid Idiocy said...

Why didn't they tell him about it?

I'll call tomorrow and see if I can find out. Really good coverage on this issue here, by the way.

griftdrift said...

Thanks Travis. I'll leave the legwork to you real reporters. Maybe. ;)

Anonymous said...

So what turned you into a Handel shill? The issue of what she may or may not be permitted to do with the outer limits of her authority is interesting at some level, but really not that important outside the circumstances of particular cases.

The real issue is this - combine this with her bizarre reopening of only Republican qualifying in Senate District 13, and you see a new Secretary of State who is brazening engaging in partisan political activity in an office that has traditionally been relatively (an appropriately) free of partisanship. Both decisions break with longstanding precedence regarding how the matters are handled, and both just happen to benefit Handel's political party (yes, there is another Democrat running for the PSC, but Powell appears to be the much stronger candidate).

Before you respond with "well, she plays hardball, and Democrats should have too," I will say that (thanks to the Bush II Administration) we see the damage that can happen when elected officials decide to employ their discretion for partisan purposes. At some point, there has to be a line drawn regarding the application of official discretion and the law, or the country becomes a third world dictatorship that happens to elect its dictators every four years or so.

That's not good. Just ask former Alabama Gov. Don Siegelman.

griftdrift said...

Well, I'd say that qualifies as one of the firebreathers I mentioned before.


Maybe you missed the part where I said it could be considered dirty? Or did you even bother to get that far before the spleen venting began?

I may need bodyguards if I go to Manuels tomorrow.

Anonymous said...

Legal issues aside, this all stinks of partisan politics.

Brass tacks of the matter are this: The GOP knows that neither Bubba nor Pam stand a good chance of beating Powell straight up in the GE. Indech is a much softer opponent for whomever comes out of the GOP primary. It serves the GOP (and the investor owned utilities) to keep Powell out of the GE at all costs. I don't think that the initial residency challenge was all Bob Indech. I would venture to speculate that someone from the GOP put a bug into his ear about it.

Chris said...


In numerous prior cases in previous years, ALJ's determined that candidates had homestead exemptions out of the districts but that they lived in the district (as they did with Powell). Back then, Democrat Cathy Cox was Secretary of State and she ruled exclusively for the Republican candidates when the judge's ruling was that they should be qualified -- even when one candidate (Roger Williams) was at the time he qualified (post a redistricting) representing a different district.

That's right. In order to run for re-election in District 4, Roger Williams changed his residency to a rental house he owned in District 4. The problem was he currently represented District 3 on a different map and the District 4 house wasn't even in District 3. So he told a court "This is where I've always lived" even though he wouldn't be eligible to represent the seat he was in if that was true. The judge still sided for him, as they often do, with an attitude of "let the voters decide".

So as you can see, cherry picking one thing or another in these opinions is not how it should be done. A friend of mine challenged Cecillia Hailey's residency. Here are some of the findings of fact: Cecillia wasn't registered in the district until April, 2008 and signed an affidavit on January 30, 2008 saying she lived at a house outside the district in order to vote absentee in the Presidential election. But the judge said let the voters decide.

Clearly if you read the law, there's just as much reason to boot Cecillia based on that evidence as the homestead stuff...however it is in the GOP's interest to keep Cecillia alive as long as possible and hopefully into the General Election.

Handel released opinions in four cases yesterday:

Gross, HD 80, sided with the court (good for the GOP)

Hailey, HD 81, sided with the court (good for the GOP)

Erickson, SD 36, sided against the court (good for the GOP because if Nan Orrock only has one African American opponent it is more likely she'll lose in a majority black primary, if she has two a runoff is more likely where it is easier for her to win. Nan is one of the Dems strongest voices).

Powell, PSC, sided against the court (good for the GOP).

Combine that with the precedent busting ruling on Senate District 13's special Republican primary and you can see a pattern developing that is not good.

griftdrift said...

Ahhhhh there's Chris with that straitjacket.

Chris I don't disagree. Is no one noticing that I mentioned it was partisan (twice) and dirty?

But it's still legal.

Here's the beauty of the system. Some might be wondering why a constitutional officer has such unfettered power with no check? Well there is a check! Political consequences! Make it an issue next election and make Handel pay.