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Unofficial Opinion 2000-9

Unofficial Opinion 2000-9

September 13, 2000
To: 

Chief Judge
Mountain Judicial Circuit

Re: 

A senior superior court judge, who is not being appointed in his senior judge capacity pursuant to O.C.G.A. § 15-1-9.1, may be appointed to serve as a part-time state-funded juvenile court judge and, so long as the hours worked annually do not exceed 1040 hours, there is no effect on the senior judges retirement.

You have asked what effect it would have on a senior superior court judge’s retirement if he or she were appointed to a new state-funded juvenile court judgeship. You have cited within the context of your letter H.B. 182, enacted by the General Assembly at 2000 Ga. Laws 1094, and 1991 Op. Att’y Gen. 91-9. It is my opinion that under certain circumstances, a senior superior court judge may be appointed to serve as a part-time juvenile court judge without affecting his or her retirement benefits

House Bill 182, codified at O.C.G.A. § 15-11-18, is part of the statutory scheme primarily set forth in H.B. 1112, enacted at 2000 Ga. Laws 20, which reorganizes Chapter 11 of Title 15 regarding juvenile proceedings. O.C.G.A. § 15-11-18 creates the juvenile court, qualifications for judges, terms and compensation for judges and other administrative matters. Also provided in H.B. 182 is the opportunity for state-funded juvenile court judge positions, both full-time and part-time. Particularly pertinent to your inquiry is the provision that, if a superior court judge assumes the duties of the juvenile court judge, no state funds will be made available for the position. O.C.G.A. § 15-11-18(b) and (d)(1)(A).

Therefore, a senior superior court judge, if appointed as such to handle juvenile court matters pursuant to O.C.G.A. § 15-1-9.1, could not be compensated with any state funds otherwise available under O.C.G.A. § 15-11-18. If, however, an individual (who in this case is a senior superior court judge) is appointed in his or her capacity as an attorney and qualifies under O.C.G.A. § 15-11-18(e), then the state funds would be available. The final part of your request to be addressed is the effect of the appointment on any retirement benefits of the senior superior court judge. You have noted that 1991 Op. Att’y Gen. 91-9 addresses this issue, but you also note that many of the provisions applicable to that opinion have been repealed. Specifically, O.C.G.A. § 47-8-66 and O.C.G.A. § 47-9-60 were repealed in 1994 and 1998, respectively. 1994 Ga. Laws 722, § 2; 1998 Ga. Laws 513, § 2. Therefore, the bases for that opinion are no longer applicable, and O.C.G.A. § 47-23-109 and O.C.G.A. § 47-23-110 now provide the framework for this current analysis. Consequently, due to these changes in the statutory sections, 1991 Op. Att’y Gen. 91-9 is effectively withdrawn. O.C.G.A. § 47-23-110(a), which covers senior superior court judges, provides for cessation of retirement benefits if the retired senior superior court judge takes a state position except with the General Assembly. However, O.C.G.A. § 47-23-109(b) allows a senior judge on retirement to accept a part-time state position without the cessation of state retirement benefits if the amount of time worked in the part-time position does not exceed 1040 hours.

The question of the limitations imposed by O.C.G.A. § 47-23-109(b) on part-time work of a senior judge has been recently addressed in 2000 Op. Att’y Gen. U00-8, a copy of which is enclosed. That opinion holds that so long as the part-time employment does not exceed 1040 hours annually there is no cessation of retirement benefits.

Therefore, it is my unofficial opinion that a senior superior court judge, who is not being appointed in his senior judge capacity pursuant to O.C.G.A. § 15-1-9.1, may be appointed to serve as a part-time state-funded juvenile court judge and, so long as the hours worked annually do not exceed 1040 hours, there is no effect on the senior judge’s retirement.

Prepared by:

CAROL A. CALLAWAY
Senior Assistant Attorney General