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Official Opinion 2009-2

Official Opinion 2009-2

January 13, 2009
To: 

Executive Director
Georgia Public Defenders Standards Council

Re: 

The General Assembly was authorized to place the GPDSC in the executive branch and a suit by GPDSC, whether by pro bono counsel or otherwise, against the State for so placing the GPDSC in the executive branch (or for any other reason) would be ultra vires and illegal.

You have requested my opinion on whether: (1) the General Assembly was authorized under the Georgia Constitution to move the Georgia Public Defender Standards Council (“GPDSC”) from the judicial branch of government to the executive branch; (2) the GPDSC can institute litigation in its own name against the State of Georgia or any other appropriate entity if it wishes to have the courts of this state determine whether the legislative act moving the GPDSC to the executive branch was a proper exercise of legislative authority under the Georgia Constitution; and (3) the GPDSC may engage pro bono counsel to initiate and pursue litigation to resolve whether the legislative act moving the GPDSC to the executive branch was a proper exercise of legislative authority under the Georgia Constitution.  It is my opinion that the General Assembly was authorized to place the GPDSC in the executive branch and that a suit by GPDSC, whether by pro bono counsel or otherwise, against the State for so placing the GPDSC in the executive branch (or for any other reason) would be ultra vires and illegal.

I will respond to each of your specific questions, in detail, below.

1. Was the General Assembly authorized under the Georgia Constitution to move the GPDSC from the judicial branch of government to the executive branch?

Your question is composed of at least two inquiries.  First, what power does the General Assembly have to organize government with respect to the GPDSC?  Second, does the nature of indigent defense constitutionally restrict the General Assembly from moving the GPDSC out of the judicial branch of state government?

Georgia law is clear that the General Assembly is free to legislate regarding the organization and function of government as long as its legislation does not violate the state or federal constitutions.  The Georgia Constitution expressly provides:  “The General Assembly shall have the power to make all laws not inconsistent with this Constitution, and not repugnant to the Constitution of the United States, which it shall deem necessary and proper for the welfare of the state.”   Ga. Const. art. III, § 6, ¶ 1.

“A marked difference between the State legislature and the United States Congress . . . is [ ] that the former can do all things not prohibited by the constitution, while the latter can exercise no power not delegated to it by the States in the Federal constitution.”   Plumb v. Christie, 103 Ga. 686, 694 (1898).  Thus, the courts have held that the General Assembly of Georgia has the power to organize government as it “is absolutely unrestricted in its power to legislate, so long as it does not undertake to enact measures prohibited by the State or Federal constitution.”   Id.; see Wilson v. Southerland, 258 Ga. 479, 480 (1988) (a court should look to statutes to determine which level of government has the duty to fund the prosecution and defense of criminal cases); see also Georgia v. Regents, 179 Ga. 210, 222-23 (1934) (state entities are a creation of the state); cf. Greer v. State, 233 Ga. 667, 669 (1975) (“The separation of powers principle is sufficiently flexible to permit practical arrangements in a complex government.”); Southern Ry. v. Melton, 133 Ga. 277, 282 (1909) (Georgia has recognized that “there are some matters which do not inherently and essentially appertain to one department of government rather than to another”).

The explicit language of the Georgia Constitution does not mention the GPDSC.[1] The GPDSC was created by the Georgia Indigent Defense Act of 2003. See O.C.G.A. §§ 17‑12‑1 through 17‑12‑128 (2003).   At no point since this state-level agency was created has there been an amendment to the constitution concerning the agency.  Therefore, there is no express language in the Georgia Constitution prohibiting the General Assembly from organizing the GPDSC in the branch of state government that the General Assembly deems appropriate.

The Georgia Constitution has included language concerning a criminal defendant’s right to counsel since 1798.  Michael Mears, A Brief History of the Georgia Indigent Defense Council 1 (2nd ed. 1998).   That constitutional provision states, “Every person charged with an offense against the laws of this state shall have the privilege and benefit of counsel.” Ga. Const. art. I, § 1, ¶ 14.  Because there is no provision for how indigent defense must be provided, or requiring that indigent defense be provided at the state level, the Georgia Constitution does not prohibit the General Assembly from assigning an agency that provides indigent defense to the branch of state government that the legislature believes proper.

With regard to federal constitutional rights, Gideon v. Wainwright, 372 U.S. 335 (1963), extended the right to appointed counsel to the state courts under the Due Process Clause of the Fourteenth Amendment, “thus placing an obligation on state or local governments to furnish indigent defendants with counsel in criminal trials.”   State Indigent Defense Commissions: Prepared by the Spangenberg Group for the Bar Information Program Upon the Request of the Indigent Defense Advisory Group of the American Bar Association Standing Committee on Legal Aid and Indigent Defendants 1 (2006) (hereinafter “ABA Report”); see Gideon v. Wainwright, 372 U.S. at 344-45 (1963); see also Bibb County v. Hancock, 211 Ga. 429, 435 (1955).   Similar to the lack of specific requirements regarding how this right is accomplished under the state constitution, neither the United States Supreme Court nor any federal courts have ruled that state government must establish and fund the right to counsel; instead, the duty to provide counsel may be discharged either by state government, local government, or some combination of both.   ABA Report, at 1.  Thus, the United States Constitution places no restrictions on the General Assembly regarding which branch of government houses the agency it creates to provide indigent criminal defense.[2]

Because neither the Georgia Constitution nor the United States Constitution prohibits the General Assembly from moving the GPDSC out of the judicial branch of state government, the next inquiry is whether the nature of indigent defense constitutionally requires the General Assembly to put the GPDSC in the judicial branch.

The American Bar Association, which looked at the question of the structure of a statewide indigent defense system, has found nothing about the nature of criminal indigent defense that requires a state-level agency providing such services to be housed in the judicial branch of state government.   ABA Report, at 17; see id. at app. A.  Instead, one of the report’s initial observations is that each state which decides to create a statewide system of indigent criminal defense must determine where in government is the best location for the agency. Id. at 17. According to the ABA Report, 42 states have agencies or commissions with authority over indigent defense.  Of those, 25 are housed in the executive branch and 17 are housed in the judicial branch.[3]   Id. at 17; id. at app. A.  The report states that, “[g]enerally, experience shows that there is no clear advantage to location in the judicial or executive branch.”[4]   Id. at 17.   “The most important role of a successful state oversight body or commission is to insulate the defense function by providing a measure of independence to the indigent defense system from political and judicial influence.”   Id. at i.  According to the ABA Report, the focus should not be on whether the agency is housed under the executive or judicial branch for purposes of submitting budgets and of administrating its operations, but should be on creating an independent agency. Id. at 17.

Although the GPDSC is assigned to the executive branch by recent legislation, it is noteworthy that it has remained an independent agency under both the original and amended versions of the law.[5]   See O.C.G.A. § 17-12-1 (2007) (stating the GPDSC is an “independent agency within the executive branch”); O.C.G.A. § 17-12-1 (2003) (stating the GPDSC is an “independent agency within the judicial branch”).

Given that the ABA Report found nothing inherently judicial in the provision of indigent criminal defense, the question remains whether Georgia law provides particular constitutional restrictions requiring indigent criminal defense to be provided by the judicial branch of government.  According to the Georgia Constitution, the judicial power of the state is vested in the courts. Ga. Const. art. VI, § 1, ¶ 1.  The judicial power encompasses the ability to declare what law is, to apply it to past transactions and to existing cases, to expound on and judicially administer it, as well as to interpret and enforce it in the context of litigation.  Thompson v. Talmadge, 201 Ga. 867, 874 (1947).  As a part of this ability, courts have the inherent power to carry out the duty to administer justice.   Sacandy v. Walther, 262 Ga. 11, 12 (1992) (quoting Wallace v. Wallace, 225 Ga. 102, 111 (1969)); see Grimsley v. TwiggsCounty, 249 Ga. 632, 633-34 (1982) (holding court has inherent power to require payment of public funds for the judicial purpose of employing personnel in clerk’s office).

This inherent judicial power arises from the doctrine of separation of powers and of equality of the branches of government.    Grimsley v. TwiggsCounty, 249 Ga. 632, 633-34 (1982). “[T]he courts themselves are not intended to be the beneficiaries of the inherent power.”   Id.  at 634.  “[T]he inherent power of the courts is a power in the public interest.  It must never be an instrument for judicial glorification nor should it be the subject of power struggles between the branches.” Id.  The Georgia Supreme Court explained, “The inherent power is not a sword but a shield.”   McCorkle v. Judges of Superior Court, 260 Ga. 315, 316 (1990).  The Supreme Court has also cautioned that “the inherent power does not give the judicial branch the right to invade the province of another branch of government.” Id.

With regard to criminal defendants who are indigent, the courts of Georgia have the duty to ensure that indigent defendants receive counsel as constitutionally required. See Wilson v. Southerland, 258 Ga. at 480 (courts have “the duty to ensure that crimes are speedily and efficiently prosecuted and that indigent defendants are effectively defended”); Bibb County v. Hancock, 211 Ga. 429, 436 (1955) (indigent defendants have a constitutional right to counsel in criminal cases, and a legislative enactment made the bills of attorneys providing that representation into expenses of court as defined under the Georgia Constitution, so that the court was able to use its inherent authority to require the county to pay these attorney bills).  Nothing about the inherent authority of the courts to carry out the duty to administer justice requires that counsel for indigent criminal defendants be employed by the judicial branch of government or be part of a statewide indigent defense system.

Prior to the creation of the state-level independent agency, trial courts were authorized to appoint counsel. See Sacandy v. Walther, 262 Ga. at 12; BibbCounty v. Hancock, 211 Ga. at 436.   However, these attorneys were neither employed by nor paid by the judicial branch of state government; they were either unpaid or paid primarily with county funds.  See Sacandy, 262 Ga. at 12 (holding unenforceable the portion of the statute that required attorneys to provide services to indigent criminal defendants without being paid); Hancock, 211 Ga. at 432-40 (holding the county was required to pay for indigent defense based on a statutory requirement); see also id. at 432-33 (noting that, prior to the Constitution of 1877, appointed counsel was not entitled to be paid for its services by public monies because no statute authorized such payment).

The legislation creating the GPDSC removed the responsibility for appointing counsel from the courts and placed it with the independent agency. See Bynum v. State, 289 Ga. App. 636, 637 (2008); Odum v. State, 283 Ga. App. 291, 292 (2007).  The act also provided state monies to fund a significant portion of indigent defense services. See O.C.G.A. §§ 17‑12‑25 through 17‑12‑36.  Although the courts may well have the inherent authority to ensure that counsel is provided to a particular defendant, this judicial function has not ever required that the services be provided by the judicial branch of government; such services can be provided by an attorney in private practice, by a lawyer with a non-profit organization, or by an attorney employed by the

government.[6]   See Bynum v. State, 289 Ga. App. at 636-38 (2008) (trial court lacks the authority to appoint counsel because the GPDSC has that authority, but noting that the trial court retains the ability to act on a mandamus action claiming the agency failed to fulfill its duties).

Further, “[a]lthough a legislative act may not conflict with or limit an inherent power, it may assist in its exercise.” Grimsley v. Twiggs County, 249 Ga. at 634.  Assuming arguendo that courts have inherent authority regarding indigent defense, the act creating the GPDSC ensures the orderly function of the courts by providing a statewide system to administer indigent defense. See Hancock, 211 Ga. at 432-35 (holding as constitutional legislation that authorized payment to attorneys providing services to indigent criminal defendants).  Based on the foregoing, the nature of indigent defense does not constitutionally restrict the General Assembly from moving the GPDSC out of the judicial branch of state government.    Therefore, because there is no constitutional requirement that the GPDSC be in the judicial branch of government, it is my official opinion that the General Assembly was authorized to move the GPDSC from the judicial branch of government to the executive branch.

2. Can the GPDSC institute litigation in its own name against the State of Georgia or any other appropriate entity if it wishes to have the courts of this state determine whether the legislative act moving the GPDSC to the executive branch was a proper exercise of legislative authority under the Georgia Constitution?

Again, this inquiry has two parts.  First, does the GPDSC itself have the authority to initiate litigation against the State or against another state entity?  Second, if it does not, will the Attorney General institute this litigation on its behalf?

The authority of an agency, or of the individuals composing the same, to bring suit on behalf of the public depends upon the terms of the act creating the agency and defining its limits and powers. Woodward v. Westmoreland, 124 Ga. 529, 530 (1905).  This means the GPDSC may not sue or be sued except as provided by law.  Id.; see 1976 Op. Att’y Gen. 76-93.  There is no statute which authorizes the GPDSC to initiate an action against the State of Georgia or any part of state government.   See O.C.G.A. §§ 17-12-1 through 17-12-80.  “[T]he Department of Law is vested with complete and exclusive authority and jurisdiction in all matters of law relating to all agencies of the Executive Branch of the State Government.  This authority is exclusive, complete and unequivocal.”  1976 Op. Att’y Gen. 76-93 at 173; Ga. Const. art. V, § 3, ¶ 4; O.C.G.A. § 45‑15‑34.  It is within the discretion of the Attorney General to decide whether to bring such a suit.   “Thus such action may be initiated only by the Attorney General in the name of the state.”   Id. at 171-72 (emphasis added).  See also Perdue v. Baker, 277 Ga. 1 (2003); 1984 Op. Att’y Gen. 84-48; 1995 Op. Att’y Gen. 95-1.

In considering the Council’s inquiry, I note that the question regarding suing the State of Georgia or another entity of state government is similar to the 1976 request by the Georgia Real Estate Commission to Attorney General Arthur K. Bolton regarding whether the Commission could sue the Secretary of State and the Joint Secretary of the State Examining Boards. See 1976 Op. Att’y Gen. 76-93.  That opinion looked at several factors in deciding whether it was appropriate to bring inter-governmental litigation.  The first of these factors was the “undesirable precedent for the settling of future disputes between state agencies and officials.” Id. at 172.  Another factor was the concern that the citizens of Georgia would “suffer from a decline in state services because large numbers of state officials and employees [would] be expending their time and energies on needless internecine litigation.”   Id.  A third major concern was the ethical problem of the Attorney General acting as counsel for both the Plaintiff and the Defendant.[7]Id.

The sound conclusion reached in 1976 Op. Att’y Gen. 76-93 is that the best interests of the State would not be served by having one state government entity sue another.[8]  Id.  I fully concur in that conclusion and I believe that it is not in the best interest of the State under the circumstances presented here for the Attorney General to institute litigation in which the GPDSC sues another entity of state government to return the agency to the judicial branch.[9]

3. May the GPDSC engage pro bono counsel to initiate and pursue litigation to resolve whether the legislative act moving the GPDSC to the executive branch was a proper exercise of legislative authority under the Georgia Constitution?

This question also poses a two-part inquiry.   The first part is whether the GPDSC is authorized to utilize counsel other than the Attorney General to initiate and pursue litigation.  The second is whether this analysis would differ if the outside counsel provided the services at no cost.

According to the Georgia Constitution, “[t]he Attorney General shall act as the legal advisor of the executive department . . . .” Ga. Const. art. V, § 3, ¶ 4.   “[I]t is clear that it is the duty of the Attorney General to represent the executive branch agencies and it necessarily follows that executive branch agencies must obtain their legal advice and representation through the Attorney General.” 1984 Op. Att’y Gen. 84-48.  Thus, an agency may not “provide itself legal advice or representation other than through the Attorney General of Georgia.”   Id.; see 1995 Op. Att’y Gen. 95-1 (emphasizing that no attorney-client privilege exists except with the Attorney General).

The second inquiry is whether this analysis changes if the counsel provides its services without cost.   Again, the Georgia Real Estate Commission made a similar inquiry to the Attorney General in 1976.  See 1976 Op. Att’y Gen. 76-93.  The Commission asked if it was authorized to accept, without cost to the Commission, the services of outside counsel.   Id. at 173.  Georgia law provides that “[t]he Attorney General, upon the request of any . . . agency of any branch of the government of the state . . . is authorized to select and employ private counsel to perform legal services for such . . . agency of any branch of the government of the state or any instrumentality thereof.”[10]    O.C.G.A. § 45-15-4.  The Commission looked at the wording of the statute that allows the Attorney General to utilize Special Assistant Attorneys General and argued the statute’s use of the term “employ” did not preclude the agency from utilizing the services of outside counsel of its choice, so long as the services were rendered without cost to the agency. 1976 Op. Att’y Gen. 76-93.

In the 1976 opinion, Attorney General Bolton disagreed with the Commission, finding that the law provided unequivocally that the Attorney General and his office “shall have complete and exclusive authority as to legal matters pertaining to state agencies, leav[ing] little doubt but that the legislative intent was that private counsel should represent state agencies only on those rare occasions when the Attorney General deem[ed] such representation to be necessary.” Id.; see O.C.G.A. § 45-15-4; O.C.G.A. § 45-15-14; O.C.G.A. § 45-15-34.   Further, this office did not view the use of the term “employ” to indicate a willingness on the part of the General Assembly to authorize a state agency to be represented by private counsel of its choice who offer to do so at no expense to the agency, but as a recognition by the drafters of the statute that private attorneys generally do not volunteer their services to state agencies. 1976 Op. Att’y Gen. 76-93.  “Moreover, even if [an agency] could accept volunteered legal services, which it clearly may not do, the [agency] would nonetheless not be authorized to initiate litigation in its name without the concurrence of the Attorney General.” Id. (citing Woodward v. Westmoreland, 124 Ga. 529 (1905) and Ramsey v. Hamilton, 181 Ga. 365 (1935)).  I wholeheartedly agree with the reasoning of these authorities on this issue, and it is my official opinion that the GPDSC cannot utilize outside counsel to initiate and pursue litigation, regardless of whether such counsel is paid.

Therefore, to summarize the foregoing, it is my official opinion that the General Assembly was authorized to place the GPDSC in the executive branch and that a suit by GPDSC, whether by pro bono counsel or otherwise, against the State for so placing the GPDSC in the executive branch (or for any other reason) would be ultra vires and illegal.

Prepared by:

DEBRAE C. KENNEDY

Assistant Attorney General



[1]There is no entity that provides criminal defense services mentioned in the Georgia Constitution.  The entities that represent the state in criminal prosecutions, both at the trial level and the appellate level, are enumerated in the Constitution.  The district attorneys are in the judicial branch of government, while the Attorney General is located in the executive branch of government.  See Ga. Const. art. V, § 3, ¶ 4 (the Attorney General shall represent the state in appeals of capital cases and in certain prosecutions); Ga. Const. art. VI, § 8, ¶ 1 (district attorneys shall represent the state in most criminal prosecutions and appeals).

[2]Indeed, it is questionable whether the federal government would have any authority to interfere in a state’s organization of its own form of government.  U.S. Const. art. IV, § 4; U.S. Const. amend. X.

[3]The references to these agencies used in this opinion have been updated to reflect the GPDSC’s move to the executive branch, because at the time that the report’s information was gathered Georgia’s agency was part of the judicial branch of government.  See id. at 17.

[4]When analyzing the different structures adopted by various states, the report found that “[s]ome believe housing the agency within the judicial branch can be beneficial as the chief justice and other members of the bench will be more inclined to help advocate for adequate defense resources.  However, this is not always the case, particularly if indigent defense is part of the judiciary’s budget, and advocating for increased indigent defense funding means less funding for clerks, judges, and court facilities.” Id. at 17.

[5]Although the GPDSC, an independent agency, may be housed in one branch of government or another, that label does not determine the function of the agency.  The GPDSC engages in rulemaking, which is quasi-legislative; it acts in a quasi-executive manner when it enforces its standards; and its actions are quasi-judicial when it hears evidence regarding an employment matter related to a Circuit Public Defender.  Cf. Wilson v. Southerland, 258 Ga. at 480 (although a district attorney is in the judicial branch of state government, the operation of the office is not a judicial function); Pearle Optical v. State Bd. of Exam’rs in Optometry, 219 Ga. 364, 374-75 (1963) (rulemaking is a quasi-legislative function of administrative agencies).

[6]The court’s inherent authority to ensure the orderly functioning of courts is also not synonymous with the courts having inherent power to exercise general supervisory control over the prosecution or defense in a criminal case.  See Ga. Pub. Defender Standards Council v. State, 284 Ga. App. 660, 663-65 (2007) (the trial court lacked jurisdiction to order the GPDSC, an independent agency, to expend funds for a trial transcript); Darden v. Ravan, 232 Ga. 756, 756-59 (1974) (the trial court lacked jurisdiction to exercise general supervisory control over the district attorney).

[7]The opinion also considered the role of Special Assistant Attorneys General, which are private attorneys that the Attorney General may appoint to perform legal services for the State.  Id.; see O.C.G.A. § 45‑15‑4. The opinion noted that “[t]he appointee, however, is an appointee of the Attorney General and in providing legal services the appointee would be authorized to perform such services as the Attorney General determined appropriate.” 1976 Op. Att’y Gen. 76-171.

[8]The Attorney General in the 1976 Op. Att’y Gen. 76-93 opinion specifically stated that he did not “mean to imply . . . that a situation could never exist where the Attorney General should sanction a suit of this type.”  However, “the Law Department acts as legal advisor for the entire Executive Branch of the State Government.  . . . [T[hat fact indicates that a proper role of the Law Department is to advise units of the Executive Branch whose interests may be in conflict as to proper statutory interpretations as they affect their legal rights, and thus avoid inter-governmental litigation.”   Id. at 172.

[9]Further, it should be noted that the United States Supreme Court has held that a state legislature cannot be sued to decide the constitutionality of a statute.  See Supreme Court of Virginia v. Consumers Union of the United States, 446 U.S. 719, 731-32 (1980); see also Scott v. Taylor, 405 F.3d 1251, 1252-57 (11th Cir. 2005) (relying on Supreme Court of Virginia v. Consumers Union of the United States to hold that members of the Georgia General Assembly were entitled to absolute legislative immunity).

[10]Although this Code section authorizes the Attorney General to employ private counsel, it does not require that he do so. See 1976 Op. Att’y Gen. 76-93.