MARCELLO BANES v. STATE OF GEORGIA

FOURTH DIVISION
MCFADDEN, P. J.,
WATKINS and PADGETT, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk's office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.gov/rules

May 27, 2026

In the Court of Appeals of Georgia

A26A0139. BANES et al. v. STATE OF GEORGIA.

PADGETT, Judge.

Appellants Marcello Banes and Stephanie R. Lindsey, who were elected

members of the Newton County Board of Commissioners, were suspended from

their positions pursuant to OCGA § 45-5-6 based on an indictment returned against

them in federal court. They filed separate petitions for declaratory and injunctive

relief, arguing that OCGA § 45-5-6 did not apply to their situations and that if the

statute did apply, it violated their due process and equal protection rights under the

federal and Georgia constitutions. The trial court rejected their arguments in a

consolidated final order, concluding that it was bound by our Supreme Court’s

decision in Eaves v. Harris, 258 Ga. 1 (364 SE2d 854) (1988) (rejecting county
commissioner’s due process and equal protection challenges to OCGA § 45-5-6

following his suspension based on a federal indictment), and that, to the extent that

Eaves may have been based on an incorrect assumption about the statute’s

applicability to, and effect on, suspended officials under federal indictment, the

appellants’ due process and equal protection challenges still failed under the

rationale set out in Eaves.

Appellants filed a consolidated notice of appeal to the Supreme Court, seeking

to invoke the Supreme Court’s appellate jurisdiction over constitutional questions.

The Supreme Court transferred the appeal to this Court, noting that “[w]here a law

has been held to be constitutional as against the same attack being made, the case

requires merely an application of unquestioned and unambiguous constitutional

provisions and jurisdiction of the appeal is in the Court of Appeals.” Banes v. State of

Georgia, Case No. S25A1319 (Ga. July 11, 2025) (quoting Zarate-Martinez v.

Echemendia, 299 Ga. 301, 304 (788 SE2d 405) (2016) (punctuation omitted)).

1. Factual and Procedural Background

On June 11, 2024, Banes and Lindsey were indicted by a federal grand jury on

a variety of felony counts related to money laundering, false tax returns, and false

statements to a federal agent. According to the indictment, the charges stemmed

from the transfer of a certain tract of land by the Joint Development Authority of

2
Jasper County, Morgan County, Newton County, and Walton County (“the JDA”),

to a limited liability company (“the LLC”), which then sold the land to a company

with whom Lindsey, an attorney and licensed real estate broker, had a brokerage

agreement. Banes, who was Chair of the Newton County Board of Commissioners

and served as one of Newton County’s representatives on the JDA, facilitated the

brokerage agreement between the company and Lindsey. Under the agreement, once

the JDA — including Banes — voted to approve the sale to the LLC, thereby allowing

the company to close on its purchase of the land, the company paid Lindsey a

commission of $150,000. Without disclosure to the JDA or the company, and in

violation of law, Lindsey then passed $100,000 of the commission to Banes through

a newly-formed business entity they created.

Following the indictment, the Governor suspended Banes from office under

OCGA § 45-5-6, until the expiration of his term of office on December 31, 2024.1 In

November 2024, however, both Banes and Lindsey ran for seats on the Newton

County Board of Commissioners for the term beginning January 1, 2025, and won

1
The suspension followed the recommendation of a statutorily-required
review commission, which found that the indictment related to and adversely
affected the administration of the office of Chair of the Newton County Board of
Commissioners, and that the rights and interests of the public were adversely affected
thereby.

3
their respective elections. On March 7, 2025, Banes and Lindsey were suspended

from office pursuant to OCGA § 45-5-6, pending the final disposition of their

criminal case or until expiration of their terms of office, whichever occurred first.2

Banes and Lindsey petitioned for declaratory and injunctive relief, contending

that the Governor exceeded his statutory authority in re-suspending Banes and

suspending Lindsey, and that even if OCGA § 45-5-6 provided the Governor that

authority, their suspensions violated the Due Process and Equal Protection clauses

of the federal and Georgia constitutions. The trial court denied their petitions after

a hearing, and this appeal followed.

2. OCGA § 45-5-6 and Eaves

OCGA § 45-5-6 provides, in relevant part:

(b) Upon indictment for a felony by a grand jury of this state or by the
United States, which felony indictment relates to the performance or
activities of the office of any public official, the Attorney General or
district attorney shall transmit a certified copy of the indictment to the
Governor who shall, subject to subsection (e) of this Code section,
appoint a review commission. Except as provided in this subsection, the

2
The March 2025 suspension again was based on the recommendation of a
review commission, which found that the indictment related to and adversely
affected the administration of the office of the Newton County District 3
Commissioner (the seat held by Lindsey) and the office of Chair of the Newton
County Board of Commissioners, and that the rights and interests of the public were
adversely affected thereby.
4
commission shall be composed of the Attorney General and two public
officials who hold the same office as the individual indicted. ...

(c) Unless a longer period of time is granted by the Governor, the
commission shall make a written report to the Governor within 14 days.
If the commission determines that the indictment relates to and
adversely affects the administration of the office of the indicted public
official and that the rights and interests of the public are adversely
affected thereby, the commission shall recommend that the public
official be suspended from office. If, and only if, the commission
recommends suspension, then the Governor shall review the findings
and recommendations of the commission and may suspend the public
officer from office immediately and without further action pending the
final disposition of the case or until the expiration of his or her term of
office, whichever occurs first. During the term of office to which such
officer was elected and in which the indictment occurred, if a nolle
prosequi is entered, if the public official is acquitted, or if after
conviction the conviction is later overturned as a result of any direct
appeal or application for a writ of certiorari, the public official shall be
immediately reinstated to the office from which he or she was
suspended. While a public official is suspended under this Code section,
the public official shall not be entitled to receive the compensation from
his or her office. If the public official is reinstated to office, he or she
shall be entitled to receive any compensation withheld under the
provisions of this Code section. For the purposes of back compensation
only, reinstatement may occur after the expiration of the public official’s
term of office.
….

5
(i) If a public official who is suspended from office under the provisions
of this Code section is not first tried at the next regular or special term
following the indictment, the suspension shall be terminated and the
public official shall be reinstated to office. The public official shall not
be reinstated under this subsection if he or she is not so tried based on
a continuance granted upon a motion made only by the defendant.

OCGA § 45-5-6(b), (c), and (i).3

In Eaves, the Supreme Court considered a similar, if not identical, due process

challenge to OCGA § 45-5-6 as appellants present here. There, Fulton County

Commissioner Eaves had been indicted by a federal grand jury on charges related to

taking bribes from a federal agent posing as a developer who was seeking zoning

changes. Eaves, 258 Ga. at 1. Eaves sought to enjoin the Governor from proceeding

under OCGA § 45-5-6, arguing that the statute deprived him of due process and

equal protection and violated the separation of powers. Id.

While recognizing that a public official has a constitutional right to hold the

office to which he was duly elected and that he cannot be deprived of that right by

state action without due process of law, the Court nonetheless rejected Eaves’ due

process challenge, explaining that, in Georgia, a public official “takes his office

3
Originally enacted in 1984 to authorize the suspension of certain public
officials who were indicted for felonies under state law, OCGA § 45-5-6 was amended
in 1986 to encompass federal felony indictments. See Eaves, 258 Ga. at 1.
6
subject to the conditions imposed by the terms and nature of the political system in

which he operates,” and his right to hold elective office is “dependent upon his not

being indicted for a felony.” Eaves, 258 Ga. at 3(2)(a). As the Court held, OCGA §

45-5-6 “is not unfair; it bears a rational relationship to a compelling state interest—

that of insuring the public’s confidence in government.” Id. As the Supreme Court

explained:

The suspension of an indictee is of limited duration and exacts no loss
of compensation. Thus, the act’s measures intrude upon the
constitutional rights of the public official only so far as is minimally
necessary to maintain the public objectives. If the matter is resolved
favorably to the official, he is fully restored to his former status. OCGA
§ 45-5-6(c). Balancing the public good against the indicted public
official’s right to hold office results in the conclusion that this law does
not offend traditional notions of fair play and justice. In short, the
statute does not on this score violate [the indicted official’s] right to due
process.

Id. at 3–4(2)(a) (citation modified).

Furthermore, with respect to Eaves’ challenge to the statute’s alleged failure

to provide adequate procedural due process by not providing him the opportunity to

contest the merits of the indictment before the review commission, the Court

likewise emphasized the “temporary nature of the act’s provisions and the resulting

lesser standard of procedural due process required.” Eaves, 258 Ga. at 4(2)(b). Viewed

7
through that lens, the Court cited the temporary loss of official authority, with no

categorical loss of pay,4 and the procedural guardrail within OCGA § 45-5-6(i),

protecting a suspended official from “prosecutorial foot-dragging” by terminating

the suspension and restoring official authority if the official is not promptly tried. Id.

“Even more important” to the Court, however, was the procedural protection of the

indictment itself, “as the triggering device,” that depended on a properly constituted

grand jury finding that probable cause existed to believe the official had committed a

felony. Id. Finally, the Court noted that before suspension can occur, the review

commission comprised of the official’s peers is required to find that the charge relates

to and adversely affects the administration of the office and that the rights and

interests of the public are adversely affected thereby. See id. All of these

considerations — as measured against the “lesser standard of procedural due process

4
Under the version of OCGA § 45-5-6 in effect at the time of the Court’s
decision in Eaves, the public official continued to receive compensation from his or
her public office “until initial conviction by the trial court.” See Ga. L. 1986, p. 602,
§ 2. The General Assembly amended the statute, effective 2022, to provide that
suspension is without pay and that if the official is reinstated, he or she shall be
entitled to any compensation withheld under the statute; for purposes of “back
compensation only,” the statute provides that “reinstatement may occur after the
expiration of the public official’s term of office.” Ga. L. 2022, Act 869, § 1. Thus,
where final disposition of the criminal case does not result in conviction, under
OCGA § 45-5-6(c), the suspension concludes and the official is entitled to back
compensation, even if the official’s term of office expired while the criminal case was
pending.

8
required” given the temporary nature of the suspension — led the Court to conclude

that “the statute affords adequate due process protection to the public official

pending resolution of the indictment.” Id. at 4–5(2)(b).5

With respect to equal protection, the decision in Eaves suggests that Eaves

claimed he was being treated differently than other elected officials in violation of his

equal protection rights. See id. at 5(4). However, the Court determined that the state

had “a rational basis for treating those public officials laboring under a felony

indictment as a separate class[,]” and consequently found no violation of equal

protection. Id.

3. Banes’ and Lindsey’s Statutory and Constitutional Challenges

Here, Banes and Lindsey claim that the trial court erred in construing OCGA

§ 45-5-6 to authorize a first or second suspension based on an indictment returned

before the public official’s term of office began and in a manner they contend violates

the separation of powers. They also argue that the trial court erred in rejecting their

5
The Court also rejected Eaves’ claim that the Governor’s discretionary
authority under the statute deprived him of due process and violated separation of
powers. The Court recognized that the Governor’s authority was adequately
constrained in a manner that satisfied due process by “the requirement that a body
largely composed of the public official’s peers find his suspension warranted.” Eaves,
258 Ga. at 5(2)(c). The Court further found that the Governor’s authority and
discretion under the statute did not amount to “an improper delegation of the power
to legislate” to the executive branch. See id. at 5(3).
9
due process and equal protection challenges under the federal and Georgia

constitutions. These questions — the trial court’s interpretation of OCGA § 45-5-6

and its holdings regarding the statute’s constitutionality — are questions of law that

we review de novo. See Lue v. Eady, 297 Ga. 321, 326(2)(a) (773 SE2d 679) (2015)

(“The interpretation of statutes … presents a question of law for the court.”); Rhodes

v. State, 283 Ga. 361, 362 (659 SE2d 370) (2008) (“The constitutionality of a statute

presents a question of law.”).

a. Scope of Suspension Authority Under OCGA § 45-5-6

Banes and Lindsey argue that the trial court erred in construing OCGA § 45-

5-6 “to authorize suspensions based on indictments returned before the current term

or before the official assumed office,” and “to authorize serial suspensions based

upon the same pre-election indictment after the prior-term suspension” expired.

They further argue that the trial court’s interpretation of the statute violates

constitutional separation of powers by permitting the Governor to disqualify

individuals from seeking or holding office when the qualifications and eligibility for

such has been determined otherwise by the legislature. We disagree.

We begin by acknowledging the important rules of construction that guide our

interpretation of OCGA § 45-5-6. As we discern its meaning, we presume that “the

General Assembly meant what it said and said what it meant. To that end, we must

10
afford the statutory text its plain and ordinary meaning, and we must view the

statutory text in the context in which it appears, and we must read the statutory text

in its most natural and reasonable way[.]” Deal v. Coleman, 294 Ga. 170, 172(1)(a)

(751 SE2d 337) (2013) (citation modified). “We also must seek to effectuate the intent

of the Georgia legislature[,]” such that “in construing language in any one part of a

statute,” we must “consider the entire scheme of the statute and attempt to gather

the legislative intent from the statute as a whole.” Lyman v. Cellchem Int’l, 300 Ga.

475, 477 (796 SE2d 255) (2017) (punctuation omitted). And where the “statutory

language is clear and does not lead to an unreasonable or absurd result, it is the sole

evidence of the ultimate legislative intent.” Lumpkin County v. Ga. Insurers Insolvency

Pool, 292 Ga. 76, 78(2) (734 SE2d 880) (2012) (citation modified). See also S. States

Chem. v. Tampa Tank & Welding, 316 Ga. 701, 714(2) (888 SE2d 553) (2023) (“It is

the duty of the court to consider the results and consequences of any proposed

construction and not so construe a statute as will result in unreasonable or absurd

consequences not contemplated by the legislature.” (citation modified)).

Here, the plain language of the statute mandates suspension of an official upon

a felony indictment by a state or federal grand jury and a determination by the review

commission that the indictment “relates to and adversely affects the administration

of the office of the indicted official and that the rights and interests of the public are

11
adversely affected thereby.” See OCGA § 45-5-6(b) and (c) (emphasis supplied).

Under the straightforward language of the statute, it matters not when the conduct

at the heart of the indictment occurred — whether before or after election or re-

election — in order to authorize suspension; so long as the conduct relates to and

adversely affects the administration of the office that the indicted official now holds,

the statute authorizes the Governor to suspend the official. Nor does it matter,

according to the plain language of the statute and the legislative intent it evinces, that

Banes’ prior suspension had terminated due to expiration of his previous term of

office. Here, both the indictment itself and the recommendations underlying Banes’

and Lindsey’s suspensions demonstrate that their alleged unlawful conduct was

carried out by virtue of and in dispensation with the administration of the office of a

member of the Newton County Board of Commissioners and that commission’s

representation on the JDA. Both Banes’ and Lindsey’s alleged conspiracy to commit,

and participation in, money laundering directly related to and adversely affected the

administration of the Commission offices they held and the public interest. As such,

when both assumed office on January 1, 2025, OCGA § 45-5-6 authorized their

suspensions, pending final disposition of their criminal cases or expiration of their

terms of office. See OCGA § 45-5-6(c).

12
Notwithstanding the plain language of the statute, Banes and Lindsey argue

that this reading of the statute somehow nullifies or renders meaningless two other

provisions within the statute. More specifically, they first argue that this

interpretation nullifies the sentence in subsection (c) providing that reinstatement to

office shall occur if certain dispositions6 of the criminal proceeding happen “[d]uring

the term of office to which such officer was elected and in which the indictment

occurred[.]” However, by its plain terms and as the trial court correctly held, the

provision relates only to reinstatement on the occurrence of specified events. It does

not establish limits on otherwise prescribed suspension authority, and there is

nothing inconsistent between the scope of the statute’s suspension authority and this

“reinstatement” provision. Appellants’ argument otherwise is without merit.

They similarly argue that a second suspension of Banes based on the same

indictment upon which his first suspension was predicated renders meaningless

subsection (c)’s broad and fundamental provision that a suspension is effective

“pending the final disposition of the case or until expiration of [the public official’s]

term of office, whichever occurs first.” See OCGA § 45-5-6(c). This argument is

6
The particular dispositions that trigger application of this “reinstatement”
sentence are “if a nolle prosequi is entered, if the public official is acquitted, or if
after conviction the conviction is later overturned as a result of any direct appeal or
application for a writ of certiorari.” OCGA § 45-5-6(c).
13
belied by the facts and is likewise without merit. Banes’ first suspension terminated

at the conclusion of his then-existing term of office on December 31, 2024. His

subsequent term began January 1, 2025, and he was not suspended until March 7,

2025; he held public office in the intervening time period. There is nothing about his

second suspension that rendered meaningless the statute’s directive that his first

suspension terminated at the expiration of his preceding term of office.

We thus conclude, as the trial court correctly did, that Banes’ and Lindsey’s

proposed reading of the statute — one in which the state’s ability to safeguard its

compelling interest in protecting the public interest and ensuring the public’s

confidence in government is dependent on the vagaries of when an indictment (that

has been determined to relate to and adversely affect the administration of the office)

may fall within an election cycle — would lead to “an unreasonable and absurd

result.” We decline to adopt an interpretation of the statute that would allow such an

absurd and arbitrary result, in contravention of clear legislative intent as evidenced

by the plain language of the statute. See S. States Chem., 316 Ga. at 714(2).

In a related textual argument, Banes and Lindsey claim that because the

legislature, under OCGA §§ 45-2-1 and 21-2-8, has “exhaustively delineated who

may not qualify to seek or hold county office, namely, persons finally convicted and

sentenced of a felony involving moral turpitude or certain election offenses,” the trial

14
court’s interpretation of OCGA § 45-5-6 that sanctioned disqualification of “a mere

indicted candidate” violated constitutional separation of powers. We disagree.

First, as the trial court appropriately concluded, because OCGA § 45-5-6

provides only for suspension pending final disposition of felony criminal cases

involving administration of the office of the public official or expiration of the

official’s term of office, and the statute does not declare ineligibility or effectuate

removal from office, “statutory qualifications to run or hold office are not

implicated,” and appellants’ separation of powers argument is unpersuasive.

Moreover, in enacting OCGA § 45-5-6, the General Assembly was well within its

constitutional purview to establish other qualifications for office. See Ga. Const. Art.

II, Sec. II, Para. III. See also Eaves, 258 Ga. at 5–6(3) and (5) (rejecting arguments

that OCGA § 45-5-6 represented an improper delegation of the power to legislate and

was pre-empted by constitutional provisions disqualifying certain persons for public

office). Appellants’ claim that the statute violates constitutional separation of powers

is thus without merit.

b. Constitutional Challenges

Banes and Lindsey claim that the trial court erred in concluding that the

Supreme Court’s decision in Eaves foreclosed their due process and equal protection

challenges to OCGA § 45-5-6, and further claim that the statute deprives them of

15
their due process and equal protection rights under the federal and state

constitutions. Based upon the rationale set forth in Eaves and application of the

familiar rational basis test, we disagree that the statute violates either due process or

equal protection under the federal or state constitutions.7

In addition to the direction Eaves provides, we are guided in our determination

of whether OCGA § 45-5-6 comports with due process and equal protection by long-

standing canons of construction. We must recognize that “[d]uly enacted statutes

enjoy a presumption of constitutionality, and the party challenging the statute bears

the burden to show that the statute manifestly infringes upon a constitutional

provision[.]” Williams v. Regency Hosp. Co., LLC, 322 Ga. 452, 455(2) (920 SE2d 131)

(2025) (punctuation omitted). Moreover, “[u]nder the canon of constitutional

doubt, if a statute is susceptible of more than one meaning, one of which is

constitutional and the other not, we interpret the statute as being consistent with the

Constitution.” Sons of Confederate Veterans v. Henry County Bd. of Commrs., 315 Ga.

39, 64(2)(d) (880 SE2d 168) (2022).

7
We generally have treated due process and equal protection rights under our
state and federal constitutions as coextensive and evaluated challenges under each
constitution together. See, e.g., State v. Holland, 308 Ga. 412, 413 n.3 (841 SE2d 723)
(2020). We do so here, as neither appellants nor the State argues that either of the
state constitutional provisions at issue is substantively different from the parallel
federal provisions.
16
Furthermore, where — as here — a statute does not proceed along suspect

lines or infringe upon fundamental constitutional rights, “equal protection and due

process concerns are satisfied if the statute bears a reasonable relation to a proper

legislative purpose and is neither arbitrary nor discriminatory.” See State v. Holland,

308 Ga. 412, 414(1) (841 SE2d 723) (2020) (punctuation omitted). See also Williams,

322 Ga. at 455(2) (statutory classification not implicating a suspect class or

fundamental rights “must be upheld against equal protection challenge if there is any

reasonably conceivable state of facts that could provide a rational basis for the

classification” (punctuation omitted)). Thus, the questions before us are whether

Banes and Lindsey have met their burden of showing: (1) that their suspensions

under OCGA § 45-5-6 are not rationally related to the General Assembly’s objective

of protecting the public’s rights, interests, and confidence in government, see

Williams, 322 Ga. at 455(2); Eaves, 258 Ga. at 3(2)(a); OCGA § 45-5-6(c); and (2)

that there is no rational basis for the alleged different treatment they maintain they

are afforded under the statute, see Holland, 308 Ga. at 415–16(2).

i. Due Process

With respect to due process, we conclude that the trial court correctly applied

the rationale of Eaves in determining that Banes’ and Lindsey’s March 2025

suspensions are of limited duration and therefore do not deprive them of due process.

17
As a beginning point, we reiterate the Supreme Court’s bedrock holding in Eaves that

OCGA § 45-5-6 “is not unfair; it bears a rational relationship to a compelling state

interest—that of insuring the public’s confidence in government.” Eaves, 258 Ga. at

3(2)(a). In light of subsection (c)’s provision that Banes’ and Linsdey’s suspensions

exist only until final disposition of their cases or expiration of their terms of office,

their suspensions are, in fact, temporary and of “limited duration.” Id. (explaining

that a public employee’s suspension “pending disposition of the criminal charges

thus safeguards the public interest by removing the employee from a position where

he or she might repeat the alleged misconduct and thereby impede the lawful

functioning of the [public office] and destroy public confidence in the [public

office]”).8 Additionally, while the statute now provides for back compensation rather

8
We recognize that in an inapposite footnote, the Eaves decision referenced
OCGA § 45-5-6(i) — a subsection not applicable to public officials who are the
subject of a federal indictment, Hill v. Kemp, 366 Ga. App. 19, 23–25(1) (880 SE2d
590) (2022) (holding that for purposes of mandamus, subsection (i) related to “term
of court” did not confer a clear legal right on an official indicted on federal charges)
— as support for the temporary nature of the suspension. See Eaves, 258 Ga. at
3(2)(a) n.1 (also incorrectly referring to subsection (i) as “OCGA § 45-5-6(d)(2),
(i)”). That reference by the Court does not affect the plain language of subsection
(c) establishing that the suspension is temporary, lasting only through final
disposition of the criminal case or expiration of the term of office. Nor do we find
that the content of subsection (i) was essential to the Court’s holding that OCGA §
45-5-6 does not deprive a public official under federal indictment of his or her right
to procedural due process.

18
than a suspension with pay, so long as an indicted official is not convicted, he or she

will not suffer a loss of compensation following final disposition of the criminal case.

See OCGA § 45-5-6(c).9 Thus, OCGA § 45-5-6 “intrude[s] upon the constitutional

rights” of Banes and Lindsey “only so far as is minimally necessary to maintain the

public objective[,]” and thus comports with due process. Eaves, 258 Ga. at 3(2)(a).10

9
Specifically, the subsection provides: “If the public official is reinstated to
office, he or she shall be entitled to receive any compensation withheld … . For the
purpose of back compensation only, reinstatement may occur after the expiration of
the … term of office.” We decline to interpret this subsection in a manner that limits
the bases for “reinstatement” to the non-exhaustive and temporally-limited list of
events set out in the preceding sentence (e.g., “if a nolle prosequi is entered, if the
public official is acquitted”) and to subsection (i) (providing that if a state indictee
“is not first tried at the next regular or special term following the indictment, the
suspension shall be terminated and the public official shall be reinstated”). Indeed,
there are other events that necessarily would result in termination of a suspension
and a concomitant re-occupation of the office, such as an acquittal that occurred
during a term of office that began after the indictment had been returned (that is,
assuming no superseding indictment had been returned during the term of office).
See Eaves, 258 Ga. at 3–4(2)(a) (“If the matter is resolved favorably to the official, he
is fully restored to his former status.” (citing OCGA § 45-5-6 (c)). Moreover, we find
that a suspension without pay and provisions for back compensation are rationally
related to the State’s compelling interest in ensuring the public’s confidence in
government.

10
To the extent the Court in Eaves also cited the utility of the indictment itself
and, to a lesser degree, subsection (i)’s protection against “prosecutorial foot-
dragging,” and the review commission’s required finding that the criminal charge
“affect … job performance” in its procedural due process analysis, again, we do not
find that the protection afforded by subsection (i) was essential to the Court’s holding
on the issue and its inapplicability to federal indictees does not strip the statute of its
rational basis. Moreover, as we discuss, infra, the Speedy Trial Act, 18 USC § 3161,
provides the same or greater temporal protection to federal indictees.
19
ii. Equal Protection

Banes and Lindsey argue OCGA § 45-5-6 deprives them of equal protection

because reinstatement under OCGA § 45-5-6(i), which is applicable to officials under

state indictment, “denies [the] federally indicted official any statutory avenue to

reinstatement.” That is, they argue that because subsection (i) provides for

reinstatement if a suspended official, with certain exceptions, “is not first tried at the

next regular or special term” and federal courts do not have defined terms of court,

federal indictees have no path to reinstatement. We disagree that the presence of

subsection (i) without a corresponding subsection applicable to officials under

federal indictment violates equal protection because there are reasonably conceivable

facts providing a rational basis for the distinction.

Here, the facts providing that rational basis are found both in the plain

language of the statute itself and in the federal Speedy Trial Act, 18 USC § 3161 et

seq. First, as the trial court correctly noted, under subsection (c), any suspension —

whether based on a federal or state indictment — expires upon final disposition of

the criminal case and thus, the official is no longer suspended from his or her office.

Secondly, again as the trial court properly observed, federal criminal cases are

subject to the Speedy Trial Act, which requires that a charged individual’s trial

commence within 70 days of the date of the indictment, with certain periods being

20
excluded from the computation of those 70 days. See 18 USC § 3161(c)(1) and (h). If

the federal indictee is not brought to trial within the time prescribed, the indictment

“shall be dismissed on motion of the defendant[,]” and such dismissal may be with

prejudice (at which time an indicted official’s suspension from office would expire,

by operation of OCGA § 45-5-6(c)). See 18 USC § 3162(a)(2). State criminal cases,

on the other hand, are subject to “terms of court” of varying lengths, depending on

the judicial circuit and/or county in which the case is pending. See, e.g., OCGA § 15-

6-3(3) and (4)(a) (identifying terms of court of varying lengths of time, from

approximately two months to seven-and-one-half months). We thus conclude that

the copious variations in superior court terms of court, the more straightforward and

self-executing constraints of the Speedy Trial Act, and the similar policy-based

protection (against being slow-walked by the prosecution) that both the Speedy Trial

Act and subsection (i) provide, more than establish a rational basis for the statute’s

differentiation between officials indicted in state court and those indicted in federal

court. We therefore hold that the statute does not violate Banes’ or Lindsey’s equal

protection rights.11

11
We also agree with the trial court’s supplemental holding that because Banes
and Lindsey requested and received extensions of time in their federal criminal cases
that far exceeded both the 70-day limit within the Speedy Trial Act and what would
have been an applicable or comparable term of court had they been indicted in state
court, the facts of their case placed them beyond the potential reinstatement period
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4. In light of our holdings above, we need not address Banes’ and Lindsey’s

contention that the trial court erred in concluding that the discretionary petition for

review permitted under OCGA § 45-5-6(f ) “cures constitutional defects.”

5. We note that in their reply brief, Banes and Lindsey make arguments neither

enumerated as error nor argued in their opening brief. As such, we do not consider

those arguments. See Perez v. Atlanta Check Cashers, 302 Ga. App. 864, 867 n.3 (692

SE2d 670) (2010) (explaining that party may not use reply brief to expand

enumerations of error).

In closing, based on the foregoing, we hold that OCGA § 45-5-6 authorized the

Governor to suspend Banes and Lindsey in March 2025 based upon their federal

indictment, and that those suspensions did not violate either individual’s due process

or equal protection rights under the federal or Georgia constitutions.

Judgment affirmed. McFadden, P. J., and Watkins, J., concur.

of subsection (i) and they thus lacked standing to assert an equal protection claim on
the unavailability of subsection (i).
22