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Unofficial Opinion 94-12

Unofficial Opinion 94-12

September 1, 1994
To: 

Senior Judge
State Court of DeKalb County

Re: 

A replacement probate judge appointed in good faith pursuant to O.C.G.A. § 15-9-13(a) may be designated pursuant to O.C.G.A. § 15-1-9.1 to assist temporarily a state court for a specified duration, assuming that individual meets the statutory qualifications of O.C.G.A. § 15-7-21(a)(1).

You have asked whether O.C.G.A. § 15-1-9.1 authorizes the assignment of a replacement probate judge appointed pursuant to O.C.G.A. § 15-9-13(a) to hear cases in the state court, assuming that person meets the statutory qualifications for state court judges as set forth in O.C.G.A. § 15-7-21(a)(1).

The statute authorizing judicial assistance from other courts, O.C.G.A. § 15-1-9.1, is extremely broad and authorizes a request for assistance by the chief judge of any court to the chief judge of any other court in this state. Once it is determined that there is a need for temporary assistance, the statute authorizes the chief judge to request assistance from any court of this state under certain terms to be included in the request for assistance. Your inquiry, endorsed by all judges in your circuit, specifies that the DeKalb State Court cannot continue to function at its high level of efficiency without assistance from other courts, and that you intend to comply with all of the procedural requirements of O.C.G.A. § 15-1-9.1 in making a request for assistance.

This office previously addressed the need for temporary assistance in Op. Att'y Gen. U89-7. The situation presented supports a need for temporary assistance based on the prior opinion of this office and O.C.G.A. § 15-1-9.1(b)(2)(C).

Official Code of Georgia Annotated § 15-1-9.1(f) outlines the procedures that must be followed in requesting assistance. See also Cramer v. Spalding County, 261 Ga. 570, 573 (1991) (O.C.G.A. § 15-1-9.1 does not give the requesting chief judge the power "to order the indefinite appointment of an additional judge") (emphasis in original); Adams v. Payne, 219 Ga. 638, 641 (1964) (a proper written and filed request is "an indispensable prerequisite to clothe [the designated judge] with jurisdiction [and] power to act in th[e] case").

The first issue is whether probate judges are included within the intent of O.C.G.A § 15-1-9.1 so that the state court may direct its request to the probate court. Official Code of Georgia Annotated § 15-1-9.1(e) provides once a written request for assistance has been made, the chief judge of the court receiving the request for assistance must designate a "judge" to preside as requested. The 1983 Constitution, Art. VI, Sec. I, Para. III, details a "judge" as including "[j]ustices, judges, senior judges, magistrates, and every other such judicial office of whatever name existing or created." Correspondingly, Art. VI, Sec. I, Para. I specifically vests the judicial power of the state in the probate courts. See also Moore v. American Suzuki Motor Corp., 203 Ga. App. 189 (1992) (Constitution defines the term "judge" for purposes of O.C.G.A. § 15-1-9.1(e)). Accordingly, probate courts are within the parameters of courts available to provide judicial assistance.

The closer question concerns the second issue: whether the designation of replacement probate judges, as outlined in your inquiry, is authorized under O.C.G.A. § 15-9-13(a). That Code Section provides:

Whenever a judge of the probate court is disqualified to act in any case or because of sickness, absence, or any other reason is unable to act in any case, the judge of the probate court may appoint an attorney at law who is a member of the State Bar of Georgia to exercise the jurisdiction of the probate court. If the judge of the probate court does not so appoint, the judge of the city or state court, as the case may be, shall exercise all the jurisdiction of the judge of the probate court in the case. If, however, the inability of the probate judge to act arises from any unlawful act or the accusation of an unlawful act on the part of the probate judge, the probate judge may not appoint an attorney and only another judge shall exercise the jurisdiction of the probate court.

Official Code of Georgia Annotated § 15-9-13(a) authorizes a probate court to appoint a replacement where the probate judge is unable to act "in any case." In turn, that replacement appointment could arguably be called upon by the state courts for assistance, consistent with the foregoing analysis. See also Rule 2.2 of the Uniform Rules of Probate Court (the term "judge" includes "any of the several active judges of the probate courts of Georgia, and any other person who may at the time be performing a judicial function of the probate court of this state in accordance with the law").

Implementation of the proposed assistance plan, however, turns on whether such replacement appointment may be made when the inability to act is not related to a specific probate court case or probate cases within a particular time frame, but, rather, concerns unavailability during a particular time frame unrelated to a probate case or cases. Your query indicates that a judge of the probate court would declare himself to be absent and unable to act for a specified time frame, perhaps from 5:00 p.m. until 9:00 a.m. on Monday through Thursday. The probate judge would then appoint an authorized replacement for this time frame. Under your proposal, the judges of the state court would then designate this replacement judge to assist the state court in its authorized business, primarily dispossessory cases.

Official Code of Georgia Annotated § 15-9-13 is broadly written and I believe it is not unreasonable to find the authority of the probate court to designate a replacement appointment for a particular time frame unrelated to particular probate cases, but only if the replacement appointment is made in good faith. This conclusion is consistent with Rule 3 of the Uniform Rules of Probate Court which provides that an appointment is to be made by written order and shall specify the cases "or time period covered." Indeed, Rule 3 goes further to observe "if the appointment was for an indefinite period, the judge shall enter and record an order terminating the appointment when he resumes his jurisdiction." Compare Cramer v. Spalding County, supra (rejecting indefinite appointments in the context of requests for judicial assistance). Consistent with prior analysis, an appointed replacement may provide assistance to the state court.

Therefore, it is my unofficial opinion that a replacement probate judge appointed in good faith may provide assistance to the state courts so long as that individual satisfies the qualifications of judges of the state courts under O.C.G.A. § 15-7-21(a)(1), and the request for assistance complies with the terms specified by O.C.G.A. § 15-1-9.1(f). Whether this arrangement is a good policy decision is a decision that must rest with the courts involved and the judgment of the individual members of the judiciary.

Prepared by:

KEVIN H. HUDSON
Assistant Attorney General