IN THE SUPREME COURT OF THE STATE OF GEORGIA

Docket No. S14D1486

ANDREW BRANTLEY, Applicant,

v.

VERA JONES, and EFFINGHAM COUNTY BOARD OF ELECTIONS AND REGISTRATION,

Respondents.

CANDIDATE VERA JONES’ RESPONSE TO APPLICATION FOR DISCRETIONARY APPEAL

FROM THE SUPERIOR COURT OF EFFINGHAM COUNTY CASE NO. SU14-CV-046-P

Steven E. Scheer Georgia Bar No.: 629050

Craig A. Call Georgia Bar No.: 825753

SCHEER & MONTGOMERY, P.C. 8 East Liberty Street Savannah, GA 31401

(912) 233-1273

ATTORNEYS FOR CANDIDATE VERA JONES

[1]

IN THE SUPREME COURT FOR THE STATE OF GEORGIA

ANDREW BRANTLEY, ) Applicant, ) ) v. ) Docket No.: S14D1486 ) EFFINGHAM COUNTY BOARD OF ) ELECTIONS AND REGISTRATION, ) Respondent. )

CANDIDATE VERA JONES’ RESPONSE TO APPLICATION FOR DISCRETIONARY APPEAL

COMES NOW, Candidate Vera Jones, by and through the undersigned

Counsel, and pursuant to Rule 33 of the Supreme Court of Georgia, and files this

Response to Andrew Brantley’s Application for Discretionary Appeal, stating the

following:

I. INTRODUCTION

A. PARTIES TO THIS APPLICATION FOR DISCRETIONARY APPEAL.

For clarity, Candidate Vera Jones will first address the parties to this appeal

and the style of the case proposed by Applicant Andrew Brantley. Applicant

Brantley appealed a ruling of the Effingham County Superintendent of Elections,

the Effingham County Board of Elections and Registration (hereinafter “Board of

Elections”), which found Candidate Vera Jones qualified to run for the Effingham

County Board of Commissioner’s District 2 seat. Applicant Brantley filed the

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initial appeal with the Superior Court of Effingham County under O.C.G.A. § 21-

2-6(e).

In the initial appeal, Applicant Brantley listed the Board of Elections as a

“Respondent” and Vera Jones as “Candidate.” In the immediate application

however, Applicant Brantley omits Candidate Jones from the Application. The

Application contains allegations against both the Board of Elections and Candidate

Jones. Thus, Candidate Jones believes she may be a proper party to this appeal.

B. CANDIDATE JONES FACTUAL AND PROCEDURAL BACKGROUND.

Candidate Jones does not agree with the facts as set forth by Applicant

Brantley; the Application omits numerous and critical relevant facts regarding this

matter. This Application is a result of a properly entered Order from the Effingham

County Superior Court affirming the Board of Elections decision declaring

Candidate Jones qualified to run for the District 2 Commissioner seat in Effingham

County.

On March 14, 2014, Applicant Brantley filed a challenge to Jones’

candidacy for the District 2 seat, alleging she was “the holder of public funds

illegally” under the Constitution of the State of Georgia, Article II, Section 2,

Paragraph 3. The challenge further alleged Jones was the “holder…of public

money…who has refused or failed…to account for and pay over the same to the

proper officer…” Based on the allegations, Applicant Brantley claimed Candidate

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Jones was not qualified to run for the District 2 seat. The entirety of Applicant’s

claims is based upon a 2007 payment from Effingham County to DM Jones

Construction, Inc. (“DM Jones”). There is no dispute the monies were paid to DM

Jones, a corporation in good standing operated by Candidate Jones’ husband

Dennis Jones. No money was ever paid to Vera Jones.

In 2007, the Effingham County Finance Department issued a check to DM

Jones in the amount of $739,844.86.1 Applicant claims Effingham County

erroneously paid the money to DM Jones Construction Inc., the evidence,

including the attachments to the challenger’s complaint, clearly establish the

money was paid to the corporation and not to Vera Jones individually. The work

served to benefit the citizens and residents of Effingham County. It is also

undisputed fact Effingham County paid DM Jones, a duly existing corporate entity,

and not Vera Jones individually. Applicant’s allegations included the slogan “Pay

it Back, Vera” -- a knowingly false political “dirty trick.” Effingham County owed

DM Jones the money for work performed by DM Jones to the benefit of Effingham

County. In fact, DM Jones expended private money well in excess of the money

received from Effingham County to construct the subject infrastructure.

The Board of Elections scheduled a hearing on Petitioner’s challenge for

April 4, 2014. Applicant and Candidate Jones appeared at said hearing, both

1 The payment was for water and sewer infrastructure located within two subdivisions, South Effingham Plantation and Buckingham Plantation.

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represented by Counsel. Prior to the hearing’s commencement, the Board of

Elections addressed substantive and procedural matters raised by both parties.

Applicant’s Counsel raised issues regarding procedure and the subpoenaing of

witnesses. The Board of Elections offered Applicant a continuance to further

address such matters; however Applicant elected to continue with the scheduled

hearing. Candidate Jones’ counsel raised issues as to the involvement of

Applicant’s counsel, and the viability of Applicant’s stated challenge. The Board

of Elections found the issue of Petitioner’s counsel’s involvement is better suited

for consideration by the State Bar of Georgia and denied Candidate Jones’ Motion

to Disqualify Applicant’s Counsel. The Board then considered the merits of

Candidate Jones’ Motion to Dismiss the filed challenge. All parties stipulated2 the

only issue was whether Vera Jones was the holder of public monies illegally or

unaccounted for.

On a 3-1 vote,3 the Board of Elections voted to dismiss the challenge filed

against Jones, and affirmed her qualification as a candidate for the District 2 seat.

The Board drafted and entered a final decision on April 14, 2014. On April 24,

2014, Applicant filed its appeal to the Superior Court of Effingham County. The

Superior Court held a hearing on May 15, 2014, and allowed the Parties to submit

2 Hearing Transcript, pp. 58-59, ll. 9-25, 1-16; April 4, 2014. (Attached as Exhibit A.) 3 Board member Herbert Jones recused himself prior to any proceedings due to a “business relationship with one of the involved.”

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legal briefs. On May 22, 2014, the Superior Court entered its Order affirming the

decision of the Board of Elections. After review of the record, the Superior Court

found in relevant part:

“Rather, other evidence in the Superintendent’s record

indicates that the money was properly paid. A letter from R. Jonathan Hart, attorney, to Effingham County Board of Commissioners, is contained in the record in which Mr. Hart provides an analysis of the monies paid to D.M. Construction together with the rights of Effingham County. On page seven of his letter to Effingham County, Mr. Hart indicated that the developer had been paid, to date, approximately ninety-six percent of the costs it incurred under a Water and Sewer Agreement entered into with the county. This appears to fall into line with the March 18, 2014 letter from then county attorney, Eric Gotwalt, who indicated that there was no question as to the amount owed, only the timing of the payment which the Court interprets as whether or not Effingham County should have paid the entire amount at once or through payments. In reviewing the record, nothing has been shown which supports the Petitioner’s

claim that any public funds are being unlawfully held by the Candidate; and when you analyze the qualification paperwork and materials provided, the Board was authorized to find that the Candidate had affirmatively established her qualifications as a candidate for District 2 Commissioner.

Turning to issues of legal error, the petitioner alleges that the Election Superintendent failed to provide findings of fact and conclusions of law in its final written decision and failed to follow proper procedure when it considered and granted the Candidate’s motion to dismiss. Under Georgia statute, the

Superintendent, upon receiving a filed challenge, is required to notify the candidate in writing of the challenge and set a hearing on the matter and inform the parties of the date, time and place of the hearing. O.C.G.A. §21-2-6(c). The record shows that these steps were followed in the present matter. All other rules and procedures are within the sound discretion of the Board. In reviewing the record, both sides were given an opportunity to be

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heard and to present evidence. In considering the motion to dismiss, particularly in light of there being no evidence to support Petitioner’s claim that any money was being unlawfully held, the Court finds that the Board was within its discretion to consider and grant the motion to dismiss; and in doing so, did not violate any legal rights of the Petitioner.”

Applicant then secured a Certificate of Immediate Review, although

unnecessarily as O.C.G.A. § 21-2-6 provides for appeals pursuant to law, and

O.C.G.A. § 5-6-35(a)(1) provides for discretionary appellate procedure to review

local and administrative agency actions. Nonetheless, Applicant filed the

application within thirty days of the Superior Court Order, and Candidate Vera

Jones responds accordingly.

II. STANDARD OF REVIEW FOR SUPERIOR COURT

O.C.G.A. § 21-2-6(e) provides after a decision on a challenge heard by a

superintendent of elections an appeal may be had to the superior court of the

county in which the candidate resides. The appeal does not act as an automatic stay

of the superintendent’s decision. The superintendent must then transmit the entire

record of the challenge and any proceedings held thereon to the superior court for

review. The superior court’s review is confined to the record, and does not involve

a jury. Furthermore, the superior court does not have the authority to review the

record and alter any findings of fact supported by any evidence. Handel v. Powell,

284 Ga. 550, 552, 670 S.E.2d 62 (2008).

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The superior court may reverse or modify the Board’s decision only if

“substantial rights of the appellant have been prejudiced because the findings,

inferences, conclusions, or decisions of the superintendent are: (1) In violation of

the Constitution or laws of this state; (2) In excess of the statutory authority of the

superintendent; (3) Made upon unlawful procedures; (4) Affected by other error of

law; (5) Clearly erroneous in view of the reliable, probative, and substantial

evidence on the whole record; or (6) Arbitrary or capricious or characterized by an

abuse of discretion or a clearly unwarranted exercise of discretion.” Id.

III. STANDARD TO GRANT APPLICATION FOR REVIEW

Under Rule 34 of the Supreme Court of Georgia, applications for

discretionary review under O.C.G.A. § 5-6-35 should only be granted4 when (1)

reversible error appears to exist; (2) the establishment of a precedent is desirable;

(3) further development of the common law, particularly in divorce cases, is

desirable; or (4) the application is for leave to appeal a judgment and decree of

divorce that is final under OCGA § 5-6-34 (a) (1) and timely under OCGA § 5-6-

35 (d) and is determined to have possible merit.

The Applicant bears the burden to demonstrate granting the discretionary

appeal is appropriate.5 The only criteria potentially applicable to this matter are 1

4 Applicant failed to address the standard for granting discretionary review. 5 Harper v. Harper, 259 Ga. 246, 246, 378 S.E.2d 673 (1989).

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and 2. Criterion 3 is inapplicable as the law relative to this matter is statutory and

constitutional. Criterion 4 is inapplicable as this is not a divorce action.

Additionally, actions of local and administrative agencies are subject to

discretionary appeal procedures under O.C.G.A. § 5-6-35(a), specifically because

it permits appellate courts an avenue for expeditious review of superior court

decisions which are themselves a review of matters already decided by another

tribunal.6 This further affords appellate courts the opportunity to decline review of

such matters without the necessity of rendering a full blown opinion.7

IV. ARGUMENT and CITATION OF AUTHORITY

Although Applicant’s application does not clearly state or identify the

specific bases which it contends are sufficient grounds to grant the application,

Candidate Jones will attempt to respond to what appear to be the main points.8

Applicant contends Candidate Jones can, and should be, considered a holder of

public funds. Applicant also contends Candidate Jones did not carry her burden of

proof before the tribunals below. Applicant further decries the Board of Election’s

decision to accept and consider a Motion to Dismiss filed by Candidate Jones. As

6 Citizens & Southern Nat’l Bank v. Rayle et al., 246 Ga. 727, 730, 273 S.E.2d 139 (1980). 7 Tri-State Bldg. & Supply, Inc. v. Reid, 251 Ga. 38, 39, 302 S.E.2d 566 (1983). 8 Throughout the proceedings and in the Application, Applicant refers to “fraud” or

“fraudulent writings” in reference to an invoice submitted to Effingham County on

behalf of DM Jones. However, Applicant has not at any stage of the proceedings even begun to state or show how the submitted invoice is purportedly fraudulent, offering zero evidence to support the obviously feeble claim.

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will be shown below, none of these bases, nor any other, are sufficient grounds for

the Application to be granted.

A. CANDIDATE VERA JONES IS NOT THE HOLDER OF PUBLIC FUNDS.

Candidate Jones’ Motion to Dismiss filed with the Board of Elections

showed the legal authorities relied upon by the Petitioner are wholly inapplicable

to Jones individually and as a candidate. Assuming arguendo the legal authorities

do apply to Candidate Jones (which is denied), she went above and beyond by

establishing the money was not being unlawfully held.

i. The Legal Authorities Relied Upon by Applicant do not Apply to Candidate Vera Jones.

The viability of Applicant’s underlying challenge hinges first upon whether

Candidate Jones is a “holder” of public funds. The plain and simple answer is no.

The “holders” referred to in the constitutional provision and Georgia statute relied

upon by Petitioner are persons acting in an official capacity and collecting money

on behalf of a governmental entity. For example, a tax commissioner who collects

taxes on behalf of a county.9 Applicant’s claim Candidate Jones is a “holder” of

public funds is completely devoid of any justifiable basis either in fact or law. The

Application for Discretionary Appeal should be denied.

9 See Weems v. Glenn, 199 Ga. 388, 390, 34 S.E.2d 511 (1945), explaining, State ex rel. Lennard v. Frazier, 48 Ga. 137 (1873) (an execution issued by the Comptroller General establishes a default against the tax collector, and the officer is presumed to be the holder of public money unaccounted for).

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ii. The Money at Issue is not Being Unlawfully Held.

Even if Candidate Jones were a “holder” of public funds (which is denied),

there is likewise no basis in fact or law showing the money at issue is being

unlawfully held. For money to be unlawfully held as alleged by Applicant, the

holder must have collected such money on behalf of a governmental entity, then

fail to pay over the balance owed to such entity. Again, the authorities relied upon

have absolutely no application to Candidate Jones.

Above all else, DM Jones received payment from Effingham County as a

corporate debt, Candidate Jones received nothing individually. As Candidate

Jones’ Motion to Dismiss10 explained, Effingham County’s failure to perform its

obligations under two separate Water/Sewer Agreements forced DM Jones to

construct the water sewer infrastructure at its own, up-front cost. The actual cost to

DM Jones far exceeded the money received, and Effingham County values the

infrastructure at over 1.5 million dollars. Secondly, Candidate Jones did not collect

the money at issue in an official capacity on behalf of Effingham County. In fact,

she individually never received nor possessed a dime of the money at issue. Lastly,

two separate attorneys hired by Effingham County to investigate the matter arrived

at the same ultimate conclusion; the County owed the money to DM Jones.

10 Attached as Exhibit B.

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The Superior Court also found the record evidence supported this

conclusion, “In reviewing the record, nothing has been shown which supports the

Petitioner’s claim that any public funds are being unlawfully held by the

Candidate…” With the inability to establish before first the Board of Elections, and

then second before the Effingham County Superior Court, Applicant should not be

afforded yet another opportunity to advance the completely meritless, frivolous,

and frankly sanctionable claim Candidate Jones is the holder of public funds. The

Application for Discretionary Appeal should be denied.

B. THE BURDEN OF PROOF AS STATED BY APPLICANT IS INCORRECT.

Also like the stance before the Superior Court, Applicant contends

Candidate Jones has the burden to prove she is qualified for the District 2 seat upon

Applicant filing the challenge with the Board of Elections. Applicant cited to the

case of Haynes v. Wells, 273 Ga. 106 (2000), as support for its contention.

However as Candidate Jones pointed out to the Superior Court, and it again agreed,

Applicant’s reliance on the Haynes case for its stated contention is misplaced.

The Haynes case involves a candidate who ran in an election but was

subsequently disqualified based on inadequate qualification paperwork. While the

Haynes decision did place the burden on Haynes to affirmatively establish his

qualification for office, the burden referenced in the decision was only that of

filing proper qualification paperwork.

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As the Honorable F. Gates Peed from the Effingham County Superior Court

explained, “…the holding in Haynes establishes a burden on the candidate to

establish all statutory qualifications, it does not place the burden on a candidate to

defend an illegitimate challenge.” (Emphasis added.) Applicant misreads and

misinterprets the actual holding of Haynes. Furthermore, reading the Haynes

decision in toto reveals the proper context in which this Court found Haynes was

required to affirmatively establish his qualifications for office.

Notwithstanding, Candidate Jones did affirmatively establish she was

qualified for the District 2 seat. As is shown in the record, Candidate Jones

submitted her properly completed “Declaration of Candidacy and Affidavit” to the

Board of Elections on March 3, 2014, affirmatively swearing she is eligible and

qualified to hold the District 2 seat. Upon the filing and initial review by the Board

of Elections, Candidate Jones was declared qualified as a candidate.

Apparently Applicant believes Candidate Jones must establish her

qualifications in the forum and format most desirable to Applicant. Again however,

Applicant completely ignores the fact the Board of Elections is permitted by law to

create and follow its own rules and procedures. The contents of Candidate Jones’

Motion to Dismiss, and the argument presented by her Counsel at the April 4,

2014, hearing are by far clear and convincing evidence Candidate Jones is

qualified for the District 2 seat. The “burden of proof” violation presented by

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Applicant is completely baseless in fact or law. The Application for Discretionary

Appeal should be denied.

C. THE BOARD OF ELECTIONS PROPERLY CONSIDERED CANDIDATE JONES’

FILED MOTION TO DISMISS. Applicant repeatedly refers to the motion to dismiss filed by Candidate Jones

with the Board of Elections as “untimely.” Applicant also took this same posture

before the Superior Court below. As Candidate Jones pointed out to the Superior

Court, and the Superior Court agreed in its Order, the rules and procedures

employed by the Board of Elections when faced with a qualifications challenge are

within its sound discretion.11

Neither in the Application nor in the record does Applicant provide any legal

authority establishing the Motion to Dismiss was “untimely.” To the contrary,

Candidate Jones provided the local legislation and proper statutory references

establishing the Board of Elections may create and follow its own procedures for

candidate qualification contests. Applicant continues to ignore the clear law on this

point and the same should not be a basis for granting the Application. The

Application for Discretionary Appeal should be denied.

11 See Effingham County Superior Court Order, page 3: “…the Court finds that the

Board was within its discretion to consider and grant the motion to dismiss…”

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V. CONCLUSION

The Application filed by Andrew Brantley does not meet any applicable

criteria for granting an application for discretionary appeal under O.C.G.A. § 5-6-

35(a)(1). Applicant has not shown reversible error or the need for establishing

precedent. The actions by the Effingham County Board of Elections and

Effingham County Superior Court were appropriate and just. There is clear legal

authority in existence to determine the issues on their merits. Candidate Vera

Jones’ is without a doubt in fact or law not the holder of public funds as contended

by Applicant, the burden of proof stated by Applicant is incorrect, and her Motion

to Dismiss was appropriate and accepted by the Board of Elections. Based on

Georgia statutory and well established case law, and the foregoing arguments, the

Application for Discretionary Appeal should be denied.

Respectfully Submitted, this 27th day of June, 2014.

/s/ Steve Scheer Steven E. Scheer

Georgia Bar No.: 629050 Craig A. Call Georgia Bar No.: 825753 Attorneys for Candidate Vera Jones

SCHEER & MONTGOMERY, P.C. 8 East Liberty Street Savannah, GA 31401 (912) 233-1273 (912) 233-6584 facsimile

CERTIFICATE OF SERVICE

This is to certify that I have this day served counsel for all parties in the foregoing matter by electronic mail, hand delivery, and/or by placing a copy in the United States Mail with proper postage affixed addressed to the following:

Warren Ratchford 1571 Highway 21 South

Springfield, Georgia 31329 wratchford@werlaw.com

Richard Rafter P.O. Box 176

Springfield, Georgia 31329 Rick@rafterlawfirm.com

Thomas L. Cole

Cole, Fleming & Clark, P.C. 337 Commercial Drive, Suite 500

Savannah, Georgia 31406 Tom@Cole-law.com

This 27th day of June, 2014. /s/ Steve Scheer

Steven E. Scheer Georgia Bar No.: 629050

Exhibit “A”

Transcript of Proceedings

Before the Effingham

County Board of Elections

April 4, 2014

Exhibit “B”

Candidate Vera Jones

Filed Motion to Dismiss

with Exhibits