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Unofficial Opinion U2002-3

Unofficial Opinion U2002-3

February 22, 2002
To: 

Representative

Re: 

The additional eligibility requirements applicable to the office of judge of the probate court in counties having a population of 96,000 persons or more according to the most recent decennial census apply to all candidates for the office, including incumbents, as of the first election following the effective date of the applicable census except for those incumbents who held the office on July 1, 1994, and remained continually in office; these, and only these, incumbents are “grandfathered in” and may continue in office and seek reelection so long as they are otherwise qualified.

I have received a letter from Legislative Counsel requesting on your behalf my opinion on the additional eligibility requirements O.C.G.A. § 15‑9‑4(b) places upon the office of judge of the probate court in counties which have a population of more than 96,000 persons according to the most recent decennial census.

The basic eligibility requirements to serve as probate court judge require that a person seeking election to the office shall, among other things, be a citizen, a two-year resident of the county, possessed of a high school education or its equivalent, and have obtained the age of 25 years prior to the date of qualifying for election to the office. See O.C.G.A. § 15‑9‑2.  They do not impose any requirement to be admitted to the practice of law.  Id.  The higher eligibility requirements applicable to the election of probate court judges in counties having a population of 96,000 or more persons requires the candidate, at the time of the election and in addition to all of the other qualifications required by law, to have attained the age of 30 years and been admitted to the practice of law for seven years preceding the election.  O.C.G.A. § 15-9-4(b). You ask whether incumbent probate judges in the six counties which have had population increases placing them in the 96,000 population classification under the 2000 decennial census will have to meet the higher qualification standards in order to offer for election after July 1, 2002, the effective date of the 2000 census under O.C.G.A. § 1‑3‑1(d)(2)(D).

The operative statute, O.C.G.A. § 15-9-4(b), clearly ties the time of the imposition of the additional and higher eligibility requirements to the time of the next election.  It provides:

Except as otherwise provided by subsection (c) of this Code section, in any county of this state having a population of more than 96,000 persons according to the United States decennial census of 1990 or any future such census and in which the probate court of such county meets the definition of a probate court as provided by Article 6 of this chapter, no person shall be judge of the probate court unless at the time of election, in addition to the qualifications required by law, he or she has attained the age of 30 years and has been admitted to practice law for seven years preceding election.

Looking at this Code provision in isolation, it might seem reasonable to conclude that the enhanced eligibility requirement for the office of judge of the probate court in the affected counties applies to all elections after  the effective date of the decennial census, regardless of whether the candidate is an incumbent.  However, in construing one provision of a statute, the entire statute must be considered, particularly where, as here, the operative provision itself commences with the words “except as otherwise provided by subsection (c) of this Code section . . . .”  Subsection (c) creates an exception to the application of the enhanced eligibility requirements for the population classification in question, but in doing so at the same time carefully limits that exception from the higher qualifications of subsection (b) to persons holding office on July 1, 1994:

A judge of the probate court holding such office on July 1, 1994, shall continue to hold such office and shall be allowed to seek reelection for such office.”

O.C.G.A. § 15‑9‑4(c).  Under this exception to the higher population classification requisite of attaining 30 years of age and being admitted to practice law for seven years preceding the election, an incumbent who held office on July 1, 1994, would be eligible to seek reelection notwithstanding the higher eligibility requirements imposed by O.C.G.A. § 15‑9‑4(b); however, this statutory limitation of the exception to the higher qualification requirements for incumbent probate judges who held office on July 1, 1994, negates any like exception for incumbents not holding office as of that date.  This follows both from the general legal maxim inclusio unius est exclusio alterius and, in this instance, by virtue of the direct statutory command that “except as otherwise provided in subsection (c)” the higher eligibility requirements apply.

I do not overlook Legislative Counsel’s reference to the applicability of the population classification being tied by O.C.G.A. § 15‑9‑4(b) to the “definition of a probate court as provided in Article 6.”  Article 6 of Title 15 deals with probate court jury trials and appeals.  Although “probate court” is defined in Article 6 in essentially the same language used to set out the higher eligibility requirements in O.C.G.A. § 15‑9‑4(b), the real purpose is to establish which probate courts can conduct jury trials.  O.C.G.A. §§ 15‑9‑120(2) and 15‑9‑121.  These Article 6 jury trial provisions do not directly relate to the qualifications mandated by O.C.G.A. § 15‑9‑4; rather, through their jury trial provisions, they provide an apparent reason why the legislature thought that the eligibility requirements for counties in this population classification should be higher, namely the conduct of jury trials in these probate courts and the desirability of having a judge possessed of the legal training and experience which results from admission to the practice of law for seven years.  Reading the statutory scheme as a whole, the intent of the legislature seems clear, and the only incumbents exempted from the higher eligibility requirements of O.C.G.A. § 15‑9‑4(b) are those who held office on July 1, 1994.

Therefore, it is my unofficial opinion that the additional eligibility requirements applicable to the office of judge of the probate court in counties having a population of 96,000 persons or more according to the most recent decennial census apply to all candidates for the office, including incumbents, as of the first election following the effective date of the applicable census except for those incumbents who held the office on July 1, 1994, and remained continually in office; these, and only these, incumbents are “grandfathered in” and may continue in office and seek reelection so long as they are otherwise qualified.

Prepared by:

ALFRED L. EVANS, JR

Senior Assistant Attorney General