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Unofficial Opinion 2008-1

Unofficial Opinion 2008-1

February 21, 2008
To: 

Representative, District 120

Re: 

A probate judge serving in a county with a population of over 96,000, where jury trials are authorized in the probate court, must have been both admitted to the practice of law and be a member of the Georgia Bar for seven years prior to his or her election.

You have asked whether O.C.G.A. § 15‑9‑4, which applies to counties with a population of more than 96,000 persons and where jury trials may be held in the probate court, requires that an individual serving as a probate judge must be a member of the State Bar of Georgia.  The answer to your question is yes.  It is my opinion that a probate judge serving in such a county must have been both admitted to the practice of law and be a member of the GeorgiaBar for seven years prior to his or her election.

The Georgia Constitution provides that there shall be a judge of the probate court in each of the State’s 159 counties.  Ga. Const. Art. IX, Sec. I, Para. III (a).   As a county constitutional officer, a probate judge is elected by the qualified voters of the county and serves a four year term.  Id.  The probate judge, as with other county constitutional officers, “shall have such qualifications, powers, and duties as provided by general law.”  Id.; see also Ga. Const. Art. VI, Sec. VII, Para. II (c) (“Probate and magistrate judges shall have such qualifications as provided by law.”)  Additionally, as an officer and judge within the judicial branch, a probate judge must be a resident of the county from which he or she is elected and the General Assembly is specifically authorized to provide for additional qualifications such as minimum residency requirements.  Ga. Const. Art. VI, Sec. I, Paras. I, II; Art. VI, Sec.VII, Para. II (d), (e).

In exercising its constitutional authority, the General Assembly has enacted a number of statutes addressed to the qualifications necessary to hold the office of probate judge.  Basic eligibility requirements provide that no person shall be eligible to offer for election to or hold the office of judge of the probate court unless the person:

(A) Is a citizen of the United States;

(B) Is a resident of the county in which the person seeks the office of judge of the probate court for at least two years prior to qualifying for election to the office and remains a resident of such county during the term of office; [1]

(C) Is a registered voter;

(D) Has attained the age of 25 years prior to the date of qualifying for election to the office, but this subparagraph shall not apply to any person who was holding the office of judge of the probate court on July 1, 1981;

(E) Has obtained a high school diploma or its recognized equivalent; and

(F) Has not been convicted of a felony offense or any offense involving moral turpitude contrary to the laws of this state, any other state, or the United States.

O.C.G.A. § 15‑9‑2(a)(1).  Probate judges must also complete a training and certification program within one year of taking office and continue any mandated training throughout their terms of office.  O.C.G.A. § 15‑9‑1.1.  The failure to meet and maintain the necessary training and certification requirements may result in a probate judge being removed from office.  O.C.G.A. § 15‑9‑1.1(d).  A probate judge may also not serve as an executor, administrator, guardian, or other agent of a fiduciary nature in his or her own court and is restricted on the type of law and cases that he or she may handle where the underlying matters relate to cases that have been or may be within the probate judge’s own court’s jurisdiction.  O.C.G.A. §§ 15‑9‑2(b); 15‑9‑3.

In addition to these requirements and restrictions, the General Assembly has also provided for additional qualifications for probate judges serving in counties with (1) a population of more 96,000 persons under the 1990 or any future decennial U.S. Census and (2) where the probate court is authorized by law to provide for jury trials.  O.C.G.A. §§ 15‑9‑4, 15‑9‑120 through 15‑9‑127.  In those circumstances, the probate judge must have attained the age of 30 at the time of election and have “been admitted to practice law for seven years preceding election.”  O.C.G.A. § 15‑9‑4(b). [2]  Probate judges elected under these provisions are also prohibited from engaging in the private practice of the law.  O.C.G.A. § 15‑9‑4(a).

Your question is what is meant by the statutory requirement that a probate judge in such counties shall have “been admitted to practice law for seven years preceding election.”  You have asked whether this means that the individual must be and have been for seven years a member of the State Bar of Georgia or whether membership in another state’s Bar would be sufficient to satisfy this “practice requirement.”  The Supreme Court of Georgia has on at least three separate occasions addressed similar language establishing a “practice requirement” for judicial branch officers, and has interpreted this type of language to mean a continuing membership in good standing in the State Bar of Georgia for the specified period of time.   The Court has specifically rejected the idea that service in another state’s Bar would satisfy such a practice requirement.

In Wallace v. Wallace, 225 Ga. 102 (1969), a candidate for the office of district attorney (solicitor general at that time) was disqualified because he did not meet the practice requirement for that office contained then both in the Constitution of 1945 and in former Ga. Code Ann. § 24‑2901.  The candidate, in fact, had not become a member of the State Bar until “right before” he entered the race for solicitor general, notwithstanding that he had been admitted to the practice of law in May 1963, seven months before the formal creation of the Bar itself.  Wallace, 225 Ga. at 104-05.  The constitutional qualifications for this office at that time contained a requirement that the person elected “‘shall have practiced law for three years next preceding his election.’”  Wallace, 225 Ga. at 104 (quoting   Ga. Const. of 1945, Art. VI, Sec. XIII, Para. I).  This requirement was also reiterated in the underlying solicitor general qualifications statute, which provided that the candidate must have “’been duly admitted and licensed to practice law in the superior courts for at least three years.’”  Wallace, 225 Ga.  at 104 (quoting   former Ga. Code Ann. § 24‑2901; 1964 Ga. Laws 362, 363).  The Supreme Court held that the statutory language had to be interpreted in light of the constitutional practice mandate, which contemplated an actual and lawful practice of law to meet this requirement.  Id.  The only way this requirement could be met, the Court concluded, was for the candidate to have been an actual member of the GeorgiaBar in good standing for the three years preceding his election.  Id.  Therefore, the candidate’s failure to join and remain a member in good standing of the State Bar rendered him ineligible for office.  Id.

The Court continued and clarified this interpretation of a constitutional and statutory “practice requirement” provision again in its decision in Whitmer v. Thurman, 241 Ga. 569 (1978), decided under the Constitution of 1976 and again interpreting the “practice requirement” for district attorneys.  Once again a candidate for the office of district attorney had challenged the “practice requirement,” which under the Constitution of 1976 mandated that

[n]o person shall be a district attorney, unless at the time of his election he shall have attained twenty-five years of age, shall have been a citizen of the State for three years, and shall have practiced law for three years next preceding his election.

Ga. Const. of 1976, Art. VI, Sec. XIII, Para. I (former Ga. Code Ann. § 2‑4201); Whitmer, 241 Ga. at 569‑70 (citing   former Ga. Code Ann. § 24‑2901) (“‘No person is eligible to the office of district attorney … who has not been duly admitted and licensed to practice law in the superior courts for at least three years.’”)   The Court rejected the challenger’s claim that prior practice as a member of the State Bar of California should be counted towards his meeting the Georgia “practice requirement.”  Whitmer, 241 Ga. at 570.  In doing so, the Court reaffirmed its holding in Wallace v. Wallace, 225 Ga. 102, and stated:

It is clear that the intent of the legislature when it imposed this practice requirement was to insure that the individuals who were elected to the office of district attorney would be experienced in the practice of law before the courts in which they would be required to perform their functions as district attorneys.  It would be contrary to this intent to allow individuals who have not been licensed to practice before our superior courts to include their practice time in other states as partial satisfaction of Code §§ 2‑4201 and 24-2901, the three-year practice requirement.

Whitmer, 241 Ga. at 571.  The Court concluded, “We affirm the trial court’s holding that the specific language in Code § 24-2901 requiring admission to practice ‘in the superior courts’ means the Superior Courts of Georgia and does not include practice in courts of similar jurisdiction in others states.” Id.

In Littlejohn v. Cleland, 251 Ga. 597 (1983), the Court had a third opportunity to address a similar “practice requirement” provision under the Constitution of 1976, this time as it applied to candidates for the Supreme Court itself.  The constitutional qualifications at issue there provided that

[n]o person shall be a Justice of the Supreme Court, a Judge of the Court of Appeals, or a Judge of Superior Courts, unless, at the time of his election, he shall have attained the age of thirty years, and shall have been a citizen of the State three years, and have practiced law for seven years.

Ga. Const. of 1976, Art. VI, Sec. XIII, Para I (former Ga. Code Ann. § 2‑4201); Littlejohn, 251 Ga. at 597.  Again, the Court concluded:

Since a person may not practice law unless he or she is a member of the State Bar, a person cannot qualify for an office requiring law practice unless he or she is a member of the State Bar.

Littlejohn, 251 Ga. at 597‑98.  Given that the challenger in Littlejohn was not and had never been a member of the State Bar of Georgia, the individual was held not to meet the constitutional “practice requirement” necessary to seek or serve in that position.  Id. at 598.[3]

All three of these decisions of the Supreme Court interpret requirements that a candidate for office must have “practiced law” for some period of time preceding his election.  This is the same type of requirement that is established for probate judges in the applicable counties subject to O.C.G.A. § 15‑9‑4(b).  In these three opinions the Supreme Court has repeatedly held that this type of requirement means both that the candidate seeking office under such a requirement must be a member of the State Bar of Georgia and that the candidate must have been a practicing member of the State Bar of Georgia for the time period prescribed by law.  Such a conclusion in this instance is also consistent with the policy purposes of the General Assembly, as outlined in Whitmer, 241 Ga. 569, that the General Assembly may reasonably require that judicial officers have practiced law in the courts in which they seek to serve.

Therefore, it is my opinion that a probate judge serving in a county subject to the requirements of O.C.G.A. § 15‑9‑4 must have been admitted to the practice of law and be a member of the Georgia Bar for seven years prior to his or her election. 

Prepared by:

DENNIS R. DUNN

Deputy Attorney General



[1] An exception to the two-year residency requirement of O.C.G.A. § 15‑9‑2(a)(1)(B) is provided for chief deputy clerks in counties with a population of over 550,000 where the chief deputy clerk has  served in that position for more than two years.  In that case, under O.C.G.A. § 15‑9‑2(c), the chief deputy clerk is eligible to fill a vacancy in the balance of the unexpired term of the incumbent in accordance with the provisions of O.C.G.A.§ 15‑9‑11.1.

[2] These requirements applied to individuals qualifying to run for the office of probate judge at elections held after June 30, 2000, and did not apply to incumbent probate judges in office at the time of the passage of this statute unless and until the judge sought to qualify for re-election.  O.C.G.A. § 15-9-4(c); 2002 Op. Att’y Gen. U2002-3; see also 1978 Op. Att’y Gen. 78-20 (This practice requirement must be met at the time the person is actually elected to the office in question.)

[3] Courts of other states have reached the same conclusion in addressing practice requirements, following and citing Littlejohn v. Cleland with approval.  SeeState ex rel. Haught v. Donnahoe, 321 S.E.2d 677, 681 n.5 (W. Va. 1984); Abrams v. Lamone, 919 A.2d 1223, 1261-63 n.54 (Md. 2005).