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Unofficial Opinion U2002-1

Unofficial Opinion U2002-1

January 11, 2002
To: 

Representative, District 46

Re: 

The General Assembly's direct legislative command that an individual appointed to fill a newly created superior court judgeship shall receive the same salary supplement provided for the other judges of the circuit cannot be varied by a county ordinance or resolution.

You have asked for my opinion concerning the General Assembly’s recent amendment of O.C.G.A. § 15-6-2, so as to provide for an increase in the number of superior court judgeships in four specified multi-judge judicial circuits, one of which is the Atlanta Judicial Circuit. See 2001 Ga. Laws 1060-66. In providing for a new judge to be added to the Atlanta Judicial Circuit, increasing its number of judges from 18 to 19, section 26 of the amendment, as you correctly point out in your letter, states that:

The compensation, salary, and contingent expense allowance of said additional judge of the Atlanta Judicial Circuit shall be the same as that of the other judges of the superior court of the Atlanta Judicial Circuit. Any salary supplements heretofore enacted by the county of said circuit shall also be applicable to the additional judge provided for in this Act.

2001 Ga. Laws at 1066.

You have asked whether it would be possible for Fulton County, through its governing authorities, to provide by ordinance, resolution, or other county enactment for the payment of a lesser salary supplement from county funds for the newly appointed judge than that which it provides for the 18 incumbent judges. For the reasons which follow, it is my opinion that a political subdivision of the State cannot, by local ordinance, resolution or other enactment modify, alter or nullify the force of the general laws of its creator (i.e., an enactment of general law of state-wide application by the General Assembly).

It is axiomatic in Georgia, and is indeed the command of our State Constitution, that laws of a general nature shall have uniform operation throughout the state and preempt any local or special law on the matter. See GA. CONST. Art. III, Sec. VI, Par. IV. Looking then to see what the “general law” is, we commence with GA. CONST. Art. VI, Sec. VII, Par. V, entitled “Compensation and Allowances of Judges”:

All judges shall receive compensation and allowances as provided by law; county supplements are hereby continued and may be granted or changed by the General Assembly. County governing bodies which had the authority on June 30, 1983, to make county supplements shall continue to have such authority under this Constitution. An incumbent’s salary, allowance, or supplement shall not be decreased during the incumbent’s term of office.

Id. (Emphasis added.) The general law pertaining to the salary of judges is O.C.G.A. § 15-6-29, which provides in subsection (a) that the annual salary of the judges of the superior courts shall be as provided in Code section 45-7-4. Moving to O.C.G.A. § 45-7-4 (Supp. 2001), we find in paragraph (a)(20) an annual state salary base for each superior court judge of $99,862.00, which is subject to annual cost-of-living adjustments by the General Assembly in the General Appropriations Act. Immediately following this fixing of the base salary, O.C.G.A. § 45-7-4(a)(20) (Supp. 2001) further provides for the continuation of county salary supplements to superior court judges as follows:

Each superior court judge shall also receive any supplement paid to such judge by the county or counties of such judge’s judicial circuit as may be provided for by law.

The most recent local legislation respecting superior court judge salary supplements in the Atlanta Judicial Circuit would appear to be 1958 Ga. Laws 89-92 entitled “Fulton County Superior Court--Compensation of Judges.” The critical part of the enactment provides that:

[T]he Board of County Commissioners of Fulton County, or such other board or persons as may from time to time exercise the administrative power of Fulton County, shall pay to each of the judges of the Superior Court of Fulton County, in addition to the salaries paid by the State, not less than ten thousand dollars ($10,000.00) per annum; payable in equally monthly installments; and the amounts so paid are declared to be part of the court expenses of said county.

Id. (Emphasis added.) This local law enactment of the General Assembly is reflected in substantially the same verbiage in § 10-147 of the Fulton County Code of Laws. It is my understanding that based upon this underlying code provision Fulton County has in fact been paying a county funded salary supplement in the $30,000 range.

Subsection (c) of the already cited general state law pertaining to the salary of judges, O.C.G.A. § 15-6-29, provides the following with respect to the application of existing salary supplements where new superior court judgeships are created:

When a new superior court judgeship is created by law for any judicial circuit, the new superior court judge shall upon taking office become entitled to and receive from the county and counties comprising the circuit the same county salary supplement, if any, then in effect for the other judge or judges of the judicial circuit. Such salary supplement for such new judge shall be authorized by this subsection and no other legislation or local legislation shall be required in order to authorize such a salary supplement, but nothing in this Code section shall be construed to prohibit the enactment of local legislation relating to such salary supplements. A publication of notice of intention to introduce local legislation as provided for in Code Section 28-1-14 shall be required for any local legislation granting, changing the amount of, or removing a salary supplement; but no publication of notice of intention shall be required for a bill creating one or more new superior court judgeships.

(Emphasis added.) This same intent of incorporating all existing salary supplements to newly appointed judges is, of course, expressly contained in the 2001 amendment to O.C.G.A. § 15-6-2 which was cited at the outset of this opinion.

The only remaining question would seem to be whether the preemptive effect of general state law as reflected in O.C.G.A. § 15-6-29 and the 2001 amendment to O.C.G.A. § 15-6-2 could in any way be said to be impacted in favor of county prerogatives respecting salary supplements for superior court judges under the state constitutional provisions applicable to “Home Rule for Counties.” See GA. CONST. Art. IX, Sec. II, Par. I. Reference to this constitutional provision not only affords no exception to Fulton County, but to the contrary clearly establishes the preemptive effect of general law. Subsection (a) of the constitutional provision states that:

The governing authority of each county shall have legislative power to adopt clearly reasonable ordinances, resolutions or regulations relating to its property, affairs, and local government for which no provision has been made by general law and which is not inconsistent with this Constitution or any local law applicable thereto. Any such local law shall remain in force and effect until amended or appealed as provided in subparagraph (b). This, however, shall not restrict the authority of the General Assembly by general law to further define this power or to broaden, limit, or otherwise regulate the exercise thereof . . . .

Id. (Emphasis added.) Moreover, the power granted to counties to enact ordinances “for which no provision has been made by general law” expressly does not extend to “action affecting any court or the personnel thereof” or to “any other matters which the General Assembly by general law has preempted or may hereafter preempt . . . .”GA. CONST. Art. IX, Sec. II, Par. I(c)(7) and (c) (emphasis added). For all of the reasons stated, I think it clear that the general law provisions of the 2001 amendment to O.C.G.A. § 15-6-2 (requiring salary supplements “heretofore enacted by the county of said circuit shall also be applicable to the additional judge provided for in this Act”) plainly preempt any past or future inconsistent or contrary resolution, ordinance, or enactment of Fulton County.

Accordingly, it is my unofficial opinion that the General Assembly’s direct legislative command that an individual appointed to fill a newly created superior court judgeship for the Atlanta Judicial Circuit shall receive the same salary supplements which Fulton County has under previous enactments provided for the other judges of the circuit cannot be changed, varied or negated by a county ordinance or resolution calling for the payment of a lesser supplement to the newly appointed superior court judge.

Prepared by:

ALFRED L. EVANS, JR.
Senior Assistant Attorney General