Georgia Public Defenders Standards Council
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
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?
“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
The explicit language of the Georgia Constitution does not mention the GPDSC. 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
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.
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.
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. 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
This inherent judicial power arises from the doctrine of separation of powers and of equality of the branches of government. Grimsley v.
With regard to criminal defendants who are indigent, the courts of
Prior to the creation of the state-level independent agency, trial courts were authorized to appoint counsel. See Sacandy v. Walther, 262
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
government. See Bynum v. State, 289
Further, “[a]lthough a legislative act may not conflict with or limit an inherent power, it may assist in its exercise.” Grimsley v.
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
In considering the Council’s inquiry, I note that the question regarding suing the State of
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.
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
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.”
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.
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.”
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.
DEBRAE C. KENNEDY
Assistant Attorney General
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).
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.
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
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.”
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
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
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.
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.”
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).
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.