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Unofficial Opinion 92-16

Unofficial Opinion 92-16

October 16, 1992
To: 

Administrative Judge

Re: 

The term "judge" as used in O.C.G.A. § 15-1-9.1(a)(3) does not include administrative law judges or other quasi-judicial officers not within the judicial branch of government.

This is in response to your letter of September 14, 1992, requesting my unofficial opinion as to whether the term "judge" as used in O.C.G.A. § 15-1-9.1(a)(3) includes quasi-judicial officers not in the judicial branch of government, specifically administrative law judges of the State Board of Worker's Compensation.  It is my unofficial opinion that the above code section does not include quasi-judicial officers who are not a part of the judicial branch of government. Thus, administrative law judges of the State Board of Worker's Compensation may not be assigned as acting superior court judges.

Code Section 15-1-9.1 derives from article VI, section I, paragraph III, of the Constitution of the State of Georgia which provides that qualified judges may exercise judicial power in any court upon the request and with the [*2]  consent of the judges of that court and of the judge's own court.  The Constitutional provision also defines the term "judge" to include Justices, judges, senior judges, magistrates, and every other such judicial office of whatever name existing or created.  Under the Constitution, judicial power is vested exclusively in the following classes of courts: magistrate courts, probate courts, juvenile courts, state courts, superior courts, the Court of Appeals and the Supreme Court.  Ga. Const. of 1983, art. VI, sec. I, par. I.  These courts are created by the Constitution while the quasi-judicial power exercised by administrative agencies is established by the General Assembly.

Thus, judges as defined by the Constitution may exercise judicial power in the above-enumerated classes of courts.  Administrative agencies are not named and therefore presumably not included in the above class because they are not "courts." An administrative agency is a governmental authority, as opposed to a court or legislative body, which affects the rights of private parties through either adjudication or rulemaking.  Bentley v. Chastain, 242 Ga. 348, 350, 249 S.E.2d 38 (1978).

Therefore it is my [*3]  unofficial opinion that the term "judge" as used in O.C.G.A. § 15-1-9.1(a)(3) does not include administrative law judges or other quasi-judicial officers not within the judicial branch of government.

Issued this 16th Day of October, 1992.

MICHAEL J. BOWERS