O.C.G.A. § 15-1-9.2 (2019)

Annotations

Cross references. - Judges authorized to exercise power outside own court, Ga. Const. 1983, Art. VI, Sec. I, Para. III. Retired state court judges providing judicial assistance, § 15-7-25. Senior judges of superior courts, § 47-8-1 et seq. Requests for assistance of senior judges, Ga.

Unif. Sup. Ct. R. 18.2. Request for judicial assignment, Ga. Unif. Sup. Ct. R. 44.2. Code Commission notes. - Pursuant to Code Section 28-9-5, in 1990, paragraph (a)(3), as added by Ga. L. 1990, p. 920, § 1, was redesignated as paragraph (a)(4), since Ga. L. 1990, p. 497, § 1, also added a paragraph (a)(3). Editor’s notes. - Ga. L. 1995, p. 381, § 1, not codified by the General Assembly, provides that: ‘‘This Act shall be known and may be cited as the ‘Death Penalty Habeas Corpus Reform Act of 1995’ .’’ Law reviews. - For note on the 1995 amendment of this Code section, see 12 Ga. St. U.L. Rev. 18 (1995).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION AUTHORITY OF COURT DURATION OF APPOINTMENT OTHER General Consideration Code section permits appointment without apparent limitation. - O.C.G.A. § 15-1-9.1 permits the mutual appointment of judges by judges to sit in every judicial office in the state without apparent limitation. Dominguez v. Enterprise Leasing Co., 197 Ga. App. 664, 399 S.E.2d 269 (1990). Procedure on vacation of judgeship while habeas action pending. - Capital habeas corpus cases assigned to a superior court judge who vacates the judgeship while the habeas action is pending should be returned to the president of the Council of Superior Court Judges for reassignment. Potts v. Zant, 263 Ga. 634, 437 S.E.2d 325 (1993). Judge appointed to fill vacancy created by resignation. - Judgment entered by a judge, who was appointed by the chief county magistrate judge upon a request for ‘‘assistance’’ made by the superior court chief judge, was not void, even though the judge was appointed to fill a vacancy created by the resignation of a superior court judge, which vacancy should have been filled by the governor. Dominguez v. Enterprise Leasing Co., 197 Ga. App. 664, 399 S.E.2d 269 (1990). Effect of failure to object to appointment. - If there was no objection to the appointment of a magistrate sitting as a superior court judge prior to the commencement of the trial, the issue of whether the order of appointment complied with the statute was not preserved for appeal. Bennett v. Jones, 218 Ga. App. 714, 463 S.E.2d 158 (1995); Albright v. Peterson, 247 Ga. App. 203, 539 S.E.2d 919 (2000). Substitution of trial judge after death was proper. - Defendant failed to show any harm resulting from the substitution of the trial judge after the death of the original trial judge, and O.C.G.A.

§ 15-1-9.1(b)(2)(B) permitted the substitution by necessity. Collins v. State, 326 Ga. App. 181, 756 S.E.2d 269 (2014). Appellate review precluded. - Defendants’ failure to raise defendant’s O.C.G.A. § 15-1-9.1 claims prior to the trial precluded appellate review of issues relating to the appointment of the trial judge. Oliver v. State, 273 Ga. App. 754, 615 S.E.2d 846 (2005). Defendant was not entitled to a new trial merely because the order appointing the senior judge under O.C.G.A. § 15-1-9.1(b)(2) was defective as that issue was raised for the first time in the new trial motion which precluded appellate review. Williams v. State, 290 Ga. App. 829, 661 S.E.2d 563 (2008). Cited in Hornsby v. Odum, 198 Ga. App. 472, 402 S.E.2d 56 (1991); Moore v. American Suzuki Motor Corp., 203 Ga. App. 189, 416 S.E.2d 807 (1992); Hernandez v. Resolution Trust Corp., 210 Ga. App. 538, 436 S.E.2d 534 (1993); Lucas v. Lucas, 273 Ga. 240, 539 S.E.2d 807 (2000); Smith v. Guest Pond Club, Inc., 277 Ga. 143, 586 S.E.2d 623 (2003); Lewis v. McDougal, 276 Ga. 861, 583 S.E.2d 859 (2003); Fraser v. State, 283 Ga. App. 477, 642 S.E.2d 129 (2007). Authority of Court Authority of recused judge to select replacement. - Although a recused state court judge was without authority to select the judge’s own replacement, defendants waived any objection to the appointed judge sitting as trial judge since the parties stipulated to the qualification of the specially appointed judge to preside over the trial. State v. Evans, 187 Ga. App. 649, 371 S.E.2d 432 (1988), overruled on other grounds, 268 Ga. 75, 485 S.E.2d 491 (1997). Senior judge had authority to sign an order to conclude a matter the senior

Authority of Court (Cont’d) judge had earlier presided over, even though the senior judge had been authorized by the chief judge of the circuit ‘‘to preside’’ on four specific days prior to the date the senior judge signed the order. Morris v. Clark, 189 Ga. App. 228, 375 S.E.2d 616 (1989). Validity of designation. - O.C.G.A. § 15-1-9.1 does not require that the designation of a judge be made by the chief judge of the requesting court and the fact that a designation was not filed in the court minutes until the day after commencement of a trial did not violate the authority of the designated judge such that the entire proceeding would be rendered void. Marsh v. Resolution Trust Corp., 211 Ga. App. 216, 439 S.E.2d 75 (1993). Order designating magistrate judge to assist the Superior Court of Fulton County was valid since: (1) the order explicitly provided the length of service; (2) the order designated the scope of the magistrate judge’s duties such as assisting with the routine matters that would normally appear before the presiding judge, and other matters arising therefrom; and (3) the order cloaked the magistrate judge with all the authority and powers exercised by the Fulton County Superior Court judges regularly presiding in the Atlanta Judicial Circuit. Giles v. State, 257 Ga. App. 65, 570 S.E.2d 375 (2002). Magistrate presiding over petitioner’s trial for rape and kidnapping with bodily harm was not tainted by fact that the trial court designated the magistrate to preside over the trial; the designation involved an intra-county designation and intra-county designations were not required to comply with O.C.G.A. § 15-1-9.1(f ) in order for the magistrate to validly preside over a trial. Lewis v. McDougal, 276 Ga. 861, 583 S.E.2d 859 (2003). Georgia Supreme Court’s overruling of Hicks v. State, 231 Ga. App. 552, 499 S.E.2d 341 (1998) to the extent the decision held that an intra-county designation order had to comply with O.C.G.A. § 15-1-9.1(f ), the Georgia appellate courts’ rejection of the contention that the failure to file the designation on the min-

utes of the court prior to the commencement of the proceedings voided the proceedings, and defendant’s failure to challenge the designation of the trial court to preside over defendant’s trial until after the trial occurred meant that the validity of the trial court’s presiding over the trial could not be reviewed on appeal, and, thus, could not be a ground for reversal. Cammer v. State, 263 Ga. App. 277, 587 S.E.2d 656 (2003). There was no error in a magistrate presiding over the defendant’s trial as O.C.G.A. § 15-1-9.1(f ) applied only when a request for magistrate judges to assist trial court judges was for a judge outside the county. Salgado v. State, 268 Ga. App. 18, 601 S.E.2d 417 (2004). O.C.G.A. § 15-1-9.1(b)(2) requires only that one judge of the requesting court be unable to preside over the case because the plaintiff presented no evidence to show that this requirement was not met, the judge held proper jurisdiction to preside over the plaintiff ’s case and was immune from the plaintiff ’s lawsuit. Bush v. Reeves, No. 1:05-CV-1315-TWT, 2005 U.S. Dist. LEXIS 38050 (N.D. Ga. Dec. 22, 2005). Authority of superior court judge to reconsider and revoke order of designated judge. - Superior court judge had the authority to reconsider and revoke a pretrial bond that was set by another judge who was presiding in the superior court judge’s place by designation; the designated judge should not have granted the bond to the defendant after expressly finding that the defendant was likely to intimidate witnesses or otherwise interfere with the administration of justice. Rooney v. State, 217 Ga. App. 850, 459 S.E.2d 601 (1995). Magistrate judge had authority to issue permanent restraining order. - Defendant’s stalking convictions, based on violations of a permanent restraining order (PRO), were not invalid on grounds the PRO was issued by a magistrate judge, as the chief judge of superior court, as authorized by O.C.G.A. § 15-1-9.1(b)(2), had requested magistrates to assist the superior court by hearing petitions under the Georgia Stalking Statute, O.C.G.A. § 16-5-94. Seibert v. State, 294 Ga. App. 202, 670 S.E.2d 109 (2008).

Magistrate had authority to accept guilty plea, but superior court judge could set aside sentence. - Although a magistrate who was appointed to preside at a county drug court pursuant to O.C.G.A. § 15-1-9.1(b)(2) had authority to accept a defendant’s guilty plea to marijuana possession, the superior court judge had the power to set aside the sentence, which was not reduced to writing, pursuant to O.C.G.A. § 17-7-93(b), and give notice of intent to impose a harsher sentence. Surh v. State, 303 Ga. App. 380, 693 S.E.2d 501, cert. denied, No. S10C1274, 2010 Ga. LEXIS 705 (Ga. 2010). Appointment not improper. - Because defendant’s claim that a trial judge was not properly appointed under O.C.G.A. § 15-1-9.1(b)(2) was first raised on a motion for new trial, the motion was thus untimely; in any event, the judge’s previous appointments by separate orders to preside over other superior court matters for specified periods of time did not render the judge a de facto superior court judge in violation of the constitutional requirement that all superior court judges be elected, Ga. Const. 1983, Art. VI, Sec. VII, Para. I, and thus defendant failed to establish that counsel’s failure to object to the allegedly improper appointment of the judge was ineffective assistance. Moreland v. State, 279 Ga. 641, 619 S.E.2d 626 (2005). It was proper under O.C.G.A. § 15-1-9.1(b)(2) for the chief judge of the magistrate court to appoint one of the magistrates to hear superior court cases after the chief judge of the superior court made a written request for judicial assistance. Dorsey v. State, 291 Ga. App. 706, 662 S.E.2d 800 (2008). Duration of Appointment Request for assistance was temporary. - Trial court erred in ruling on the constitutionality of O.C.G.A. § 15-1-9.1(b)(2)(D) as the intra-county request for judicial assistance was for temporary assistance pursuant to § 15-1-9.1(b)(2)(C) since the judicial order setting forth the request and response for judicial assistance was of limited duration and was subject to termination at any time, upon receipt of 30 days’ notice from

the superior, state, or juvenile court announcing that court’s withdrawal. Earl v. Mills, 278 Ga. 128, 598 S.E.2d 480 (2004). Indefinite appointment of assistant judges or district attorney. - State court judge does not have the authority to order the indefinite appointment of assistant judges or solicitors (now district attorneys) whose positions are not authorized by local law or to finance those positions through a court-created fund comprised of moneys withheld from the county treasury. Cramer v. Spalding County, 261 Ga. 570, 409 S.E.2d 30 (1991). Order appointing judge held invalid. - Trial court correctly granted the defendant’s motion to suppress evidence seized from the defendant’s computer because the order appointing a visiting judge to sign the warrant for the search failed to specify either the scope or length of the assisting judge’s service, violating the standards required under O.C.G.A. § 15-1-9.1(f ), and rendering the warrant null. State v. Kelley, 302 Ga. App. 850, 691 S.E.2d 890 (2010). Request for intra-county judicial assistance not permanent. - Superior, state, and juvenile courts did not take improper permanent action by renewing an order requesting intra-county judicial assistance, which made the order span two terms of court. Earl v. Mills, 278 Ga. 128, 598 S.E.2d 480 (2004). Other Separate court not created. - Intra-county request for judicial assistance under O.C.G.A. § 15-1-9.1(b)(2)(C) did not create a separate court, but was a constitutionally-permitted request for intra-county judicial assistance since the request and response set out the matters to be handled by the two juvenile court judges, who had agreed to assist the superior court; accordingly, the intra-county request and response were neither an unconstitutional creation of a class of court in violation of Ga. Const. 1983, Art. VI, Sec. I, Para. I, nor an unconstitutional usurpation of legislative authority by members of the judiciary in violation of Ga. Const. 1983, Art. VI, Sec. I, Para. VII. Earl v. Mills, 278 Ga. 128, 598 S.E.2d 480 (2004).

OPINIONS OF THE ATTORNEY GENERAL Part-time judges of magistrate court and part-time referees of juvenile court. - Both part-time judges of the magistrate court and part-time referees of the juvenile court may be assigned to hear cases in the superior court so long as they meet the qualifications of judges of the superior court as provided in O.C.G.A. § 15-6-4. 1989 Op. Att’y Gen. No. U89-7. ‘‘Judge’’ does not include administrative law judges. - 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. 1992 Op. Att’y Gen. No. U92-16. Assistance to state courts by replacement probate judge. - Replacement probate judge appointed in good faith pursuant to O.C.G.A. § 15-9-13(a) may provide assistance to 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 subsection (f ) of O.C.G.A. § 15-1-9.1. 1994 Op. Att’y Gen. No. U94-12. Appointment of superior court judge on retirement. - Senior superior court judge, who is not being appointed in that senior judge capacity pursuant to O.C.G.A. § 15-1-9.1, may be appointed to serve as a part-time state-funded juvenile court judge and, so long as the hours worked annually do not exceed 1040 hours, there is no effect on the senior judge’s retirement. 2000 Op. Atty. Gen. No. U2000-9. Authority to set and amend bonds. - Once the clerk of the superior court properly files an indictment or once a valid accusation is entered, the superior court has exclusive jurisdiction over the case, including all bond issues, unless the court invokes the court’s authority to delegate jurisdiction to the magistrate court under subsection (e) of O.C.G.A. § 15-1-9.1 or O.C.G.A. § 17-6-1. 1997 Op. Att’y Gen. No. 97-19.