2020 Georgia Code
Title 15 - Courts
Chapter 1 - General Provisions
§ 15-1-9.1. Requesting Judicial Assistance From Other Courts

1. As used in this Code section, the term:
   1. "Administrative judge" means a superior court judge or senior judge of the superior court elected within an administrative district as provided by Code Section 15-5-4.
   2. "Chief judge" means the judge most senior in time of service or, if applicable, the judge to whom the administrative duties of a court have been assigned.
   3. "Judge" includes Justices, judges, senior judges, magistrates, and every other such judicial officer of whatever name existing or created.
   4. "Part-time judge" means a judge who serves on a continuing or periodic basis but who is permitted by law to devote time to some other profession or occupation and whose compensation for that reason is less than that of a full-time judge.
2. 1. If assistance is needed from a judge outside of the county, a superior court judge of this state or the chief judge of a class of courts other than an appellate court may make a request for judicial assistance in the court served by said requesting judge to the administrative judge of the judicial administrative district in which said requesting judge's court is located, if any of the following circumstances arises:
      1. A judge of the requesting court is disqualified for any cause from presiding in any matter pending before the court;
      2. A judge of the requesting court is unable to preside because of disability, illness, or absence;
      3. A judge of the requesting court is unable to preside because such judge is performing ordered military duty as such term is defined in Code Section 38-2-279; or
      4. A majority of the judges of the requesting court determines that the business of the court requires the temporary assistance of an additional judge or additional judges.
   2. If assistance is needed from a judge from the same county, the chief judge of any court within such county of this state may make a written request for assistance to the chief judge of any other court within such county, a senior judge of the superior court, a retired judge, or a judge emeritus of any court within the county. The request by the chief judge may be made if any of the following circumstances arises:
      1. A judge of the requesting court is disqualified for any cause from presiding in any matter pending before the court;
      2. A judge of the requesting court is unable to preside because of disability, illness, or absence;
      3. A judge of the requesting court is unable to preside because such judge is performing ordered military duty as such term is defined in Code Section 38-2-279;
      4. A majority of the judges of the requesting court determines that the business of the court requires the temporary assistance of an additional judge or additional judges; or
      5. A majority of the judges of the requesting court determines that the business of the court requires the permanent assistance of an additional judge or additional judges. If the requesting court is a state or superior court, the assisting judge or assisting judges may hear and decide matters otherwise in the exclusive jurisdiction of the state or superior court without regard to time, type of case, or limitations contained in the rules of such state or superior court; provided, however, that a chief magistrate or magistrate may serve as a permanent assisting judge only in counties having a population of 180,000 or more according to the United States decennial census of 1990 or any future such census.
   3. When a petition for habeas corpus is filed challenging for the first time state court proceedings resulting in a death sentence, the clerk of the superior court acting on behalf of the chief judge shall make a request for judicial assistance to the president of The Council of Superior Court Judges of Georgia. Within 30 days of receipt of a request for judicial assistance, the president of The Council of Superior Court Judges of Georgia shall, under guidelines promulgated by the executive committee of said council, assign the case to a judge of a circuit other than the circuit in which the conviction and sentence were imposed.
   4. In petitions under this article challenging for a second or subsequent time a state court proceeding resulting in a death sentence, the chief judge of the court where the petition is filed may make a request for judicial assistance to the president of The Council of Superior Court Judges of Georgia upon certifying that the business of the court will be impaired unless assistance is obtained. Within 30 days of receipt of a request for judicial assistance, the president of The Council of Superior Court Judges of Georgia shall, under guidelines promulgated by the executive committee of said council, assign the case to a judge of a circuit other than the circuit in which the conviction and sentence were imposed.
3. A chief judge of a requesting court or assisting court shall be presumed to act with the consent of all judges of the court.However, if a judge of a court shall insist, all judges of that court shall vote upon whether to ratify the action taken by the chief judge under this Code section.
4. 1. If the chief judge is unable because of disability, illness, or absence to make a request for assistance, a majority of the judges of the court may make such a request for him.If a court is served by only one judge who, himself, is unable to make a request because of disability, illness, or absence, or when the judge or judges of the court fail to procure assistance in the event of the absence, illness, disability, or disqualification of one of the judges, and it is satisfactorily made to appear to the Governor that any regular or special term of any court will not be held or continued in session because of such failure to procure assistance, the Governor shall request the administrative judge of the judicial administrative district within which district the court in need of assistance lies to assign another judge to hold the regular or special term of such court.However, no judge shall be named or assigned to hold court when the time fixed by law for holding the term of court conflicts with the holding of any regular or special term already called by him in his own court.
   2. If a vacancy shall occur in the judicial office for which the Governor has had to request assistance from the administrative judge of the judicial administrative district in a situation wherein the conditions exist as provided in paragraph (1) of this subsection, the Governor may appoint a judge of a court of record as an interim judge to fill temporarily such vacancy until the vacancy is permanently filled as provided by law.
5. The administrative judge of the district receiving a request for assistance shall designate a judge to preside as requested.The designated judge may consent to preside in the requesting court provided he is otherwise qualified to serve as a judge in the requesting court.The qualifications of residency within a particular political or geographic subdivision of the state shall not apply to a designated judge.The designation shall be made in writing and delivered to the judge requesting assistance.
6. The written designation shall identify the court in need of assistance, the county where located, the time period covered, the specific case or cases for which assistance is sought if applicable, and the reason that assistance is needed.The written designation shall be filed and recorded on the minutes of the clerk of the court requesting assistance. Any amendment to the designation shall be written, filed, and recorded as is the original designation.
7. A judge rendering assistance in accordance with this Code section shall discharge all the duties and shall exercise all of the powers and authority of a judge of the court in which he is presiding.
8. The governing authority responsible for funding the operation of the requesting court shall bear the expenses of the judge rendering assistance in accordance with this Code section, except that such judges presiding in the appellate or superior courts in accordance with this Code section shall be compensated by state funds appropriated or otherwise available for the operation of these courts.
9. Senior judges of the superior courts, senior judges appointed pursuant to Code Section 15-1-9.3, part-time judges, and retired judges or judges emeritus of the state courts shall receive the amount of compensation and payment for expenses as provided by Code Section 15-1-9.2. All other judges rendering assistance in accordance with this Code section shall be entitled to actual travel and lodging expenses but shall not be entitled to any additional compensation for this assistance.
10. The court reporter, support personnel, facilities, equipment, and supplies necessary to perform the duties requested shall be provided to any judge rendering assistance in accordance with this Code section by the requesting court, unless otherwise agreed.
11. In the event that the judge requesting assistance is a superior court judge other than a chief judge, then a copy of the assignment shall also be filed with the chief judge of the court to be assisted.
12. As an alternative to the other provisions of this Code section, any judge other than a superior court judge may, under the circumstances described in subparagraph (b)(1)(B) or (b)(1)(C) of this Code section, request judicial assistance from any other judge who is not a superior court judge and who is otherwise qualified; and the judge so requested may agree to so serve.When one judge serves in the court of another pursuant to this subsection, a written designation by the requesting judge shall be filed and recorded on the minutes in the same general manner as provided for in subsection (f) of this Code section and the provisions of subsection (h) of this Code section shall apply with respect to the payment of expenses.The provisions of this subsection are supplementary to the provisions of the other subsections of this Code section.
13. This Code section shall be supplementary to other laws relating to the authorization of replacement judges.
14. Notwithstanding the provisions of this Code section, a senior judge shall not be assigned, designated, or preside in any criminal case involving a capital offense for which the death penalty may be imposed once the state has filed a notice of its intention to seek the death penalty; provided, however, that a senior judge may be assigned, designated, or preside in such a case if the judge had previously been assigned or designated and presided over such case while serving as an elected superior court judge prior to attaining senior judge status.

(Code 1981, §15-1-9.1, enacted by Ga. L. 1983, p. 961, § 1; Ga. L. 1984, p. 22, § 15; Ga. L. 1985, p. 245, § 1; Ga. L. 1988, p. 1958, § 1; Ga. L. 1990, p. 8, § 15; Ga. L. 1990, p. 343, § 1; Ga. L. 1990, p. 497, § 1; Ga. L. 1990, p. 920, § 1; Ga. L. 1995, p. 381, § 7; Ga. L. 1996, p. 1231, § 1; Ga. L. 1998, p. 268, § 1; Ga. L. 2000, p. 421, § 1; Ga. L. 2008, p. 540, § 1/SB 11; Ga. L. 2008, p. 846, § 1/HB 1245.)

- 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. S. Ct. R. 18.2.

Request for judicial assignment, Ga. Unif. S. Ct. R. 44.2.

- 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).

- 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'."

- For note on the 1995 amendment of this Code section, see 12 Ga. St. U.L. Rev. 18 (1995).

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).

- 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).

- 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).

- 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).

- 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).

- 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), overruled in part by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020).

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 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).

- 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 minutes 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, F. Supp. 2d (N.D. Ga. Dec. 22, 2005).

- 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).

- 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).

- 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).

- 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).

- 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).

- 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).

- 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.

- 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.

- 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.

- 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.

- 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.