Georgia Department of Law, from the office of Samuel S. Olens, Attorney General

Unofficial Opinion 2014-2

August 28, 2014
To: 

Representative, District 14

Re: 

A member of the Georgia General Assembly may not serve as a municipal court judge.

You have asked whether there is any constitutional or statutory impediment to a member of the General Assembly serving as a municipal court judge.  For the reasons explained below, it is my opinion that a legislator may not simultaneously serve in the General Assembly and as a municipal court judge.

Municipal Courts

Under the Georgia Constitution, the judicial power of the state is vested in its magistrate, probate, juvenile, state, and superior courts, as well as in the appellate courts.  Ga. Const. Art. VI, Sec. I, Para. 1.  As a part of that same constitutional provision, the General Assembly is given the authority to establish municipal courts which have jurisdiction over ordinance violations and “such other jurisdiction as provided by law.”  Id.  Therefore, the scope of a municipal court’s jurisdiction and its structure are defined within a city’s charter as well as through general state law because municipal courts may be granted the authority “by law” to try state offenses.  Id.

The General Assembly has exercised this authority through the passage of a number of general law provisions establishing municipal courts and their jurisdiction.  O.C.G.A. §§ 36‑32‑1 through 36‑32‑13.  The law permits each city, unless otherwise altered by local law, “to establish and maintain a municipal court having jurisdiction over the violation of municipal ordinances and over such other matters as are by general law made subject to the jurisdiction of the municipal courts.”  O.C.G.A. § 36‑32‑1(a).  Recognizing that such local courts have been called by a variety of names in Georgia law, the General Assembly further provided:

Any reference in this Code or in any local law to a corporate court, police court, recorder’s court, mayor’s court, or any such court known by any other name which has jurisdiction over the violation of municipal offenses shall be deemed to mean a municipal court.

Id.  The use of those names for the various courts was stricken from all general and local laws and in their place the terms “municipal court” or “municipal courts” was to be substituted.  Id.  The local law creating a city may also permit the local governing authority to appoint municipal judges.  O.C.G.A. §§ 36‑32‑1(d), 36‑32‑2(a).  As of June 30, 2011, such appointed judges must be licensed to practice law in Georgia and be active members in good standing with the State Bar.  O.C.G.A. § 36‑32‑1.1.[1]

Municipal courts are, by general law, given the same power and authority as magistrates in relation to criminal cases, which includes (1) the issuance of arrest and search warrants, (2) the trial of ordinance violations, (3) the granting of bail unless that power is exclusively reserved to another court, and (4) the trial and sentencing of matters involved with the issuing of bad checks.  See O.C.G.A. §§ 36‑32‑3, 15‑10‑2.  In addition to this, municipal courts are given the authority to try and dispose of cases involving possession of one ounce or less of marijuana, transactions in drug object cases as identified under O.C.G.A. § 16‑13‑32, misdemeanor offenses of operating or authorizing the operation of a vehicle without proper insurance or the operation of a motor vehicle without a certificate of emission inspection, misdemeanor theft by shoplifting, and furnishing alcoholic beverages to or possession of alcoholic beverages by persons under 21 years of age.  O.C.G.A. §§ 36‑32‑6, 36‑32‑6.1, 36‑32‑7, 36‑32‑8, 36‑32‑9, and 36‑32‑10.  See also 2005 Op. Att’y Gen. 2005-4 (a municipal court has broad enforcement powers in relation to enforcing the state’s “traffic laws”).

Where there is no state court in the county with jurisdiction to try and dispose of criminal trespass cases, municipal courts may do so for offenses occurring within the city limits.  O.C.G.A. § 36‑32‑10.1(a).  In handling each of these matters, a municipal court is limited in its sentencing to any specific provisions contained in the city charter.  Otherwise “[e]ach municipal court of this state . . . shall be authorized to impose any punishment up to the maximums specified by general law, including the maximums specified in” the laws dealing with Municipal Home Rule powers which includes the ordering of confinement for up to 6 months or the imposition of a $1,000 fine.  O.C.G.A. §§ 36‑32‑1(c), 36‑35‑6(a)(2)(B) and 36‑35‑6(a)(2)(B).  See also 1999 Op. Att’y Gen. U99-11 (general state law regarding the home rule powers of cities limits the penalties that may be imposed by a municipal court).

The General Assembly

I have previously noted in relation to another question regarding a member of the General Assembly serving in a county position that:

The legislative power of the State is vested in the General Assembly.  Ga. Const. Art. III, Sec. I, Para. I.  The General Assembly comprises two chambers, the House of Representatives and the Senate.  Ga. Const. Art. III, Sec. II, Para. I.  The members of each of these chambers are elected from individual districts.  Id.  The legislature is authorized to make all laws of the state, consistent with the provisions of the Constitution.  Ga. Const. Art. III, Sec. VI . . . .

There are specific qualifications for a person to serve in the General Assembly, including the provision that “[n]o person holding any civil appointment or office having any emolument annexed thereto under the United States, this state, or any other state shall have a seat in either house.”  Ga. Const. Art. III, Sec. II, Para. IV (b).  An emolument of office is “[a]ny advantage, profit, or gain received as a result of one’s employment or holding of office.”  Black’s Law Dictionary 563 (8th ed. 2004).  Emoluments may include retirement benefits and even the accrual of annual and sick leave credits to be used in relation to calculating retirement benefits.  Amerson v. Bd. of Trustees of the Ret. Sys. of Georgia, 257 Ga. 579, 581 (1987).

2009 Op. Att’y Gen. U2009‑2 (footnote omitted). [2]  The law also provides that “[n]o elected county or municipal official shall be eligible to serve as a member of the General Assembly.”  O.C.G.A. § 28‑1‑13 (emphasis added).  However, there is no prohibition on appointed local government officials serving in the legislature.[3]  Cf. 1997 Op. Att’y Gen. U97‑11 (legislator may serve on a local city-county planning commission); 1991 Op. Att’y Gen U91‑4 and 1984 Op. Att’y Gen. U84‑34 (legislator may serve as a city or county attorney)[4].

Separation of Powers

In the same 2009 opinion noted above, I addressed the State’s doctrine of the “separation of powers” of the three branches of government, stating:

The Constitution of Georgia provides that

[t]he legislative, judicial, and executive powers shall forever remain separate and distinct; and no person discharging the duties of one shall at the same time exercise the functions of either of the others except as herein provided.

Ga. Const. Art. I, Sec. II, Para. III.  “This provision distinguishes our state Constitution from the federal Constitution, which has no express provision ‘prohibit[ing] the officials of one branch of government from exercising the functions of the other branches.’”  Sentence Review Panel v. Moseley, 284 Ga. 128, 129 (2008).

In addressing the application of the separation of powers doctrine, it is evident that under the plain language of the Constitution any analysis of whether the doctrine has been violated must look both at the legal designation of the branch of government to which a particular position is assigned as a matter of law and at the underlying duties and responsibilities that are being performed.

2009 Op. Att’y Gen. U2009‑2.  As noted below, these principles have been applied in analyzing questions regarding the State’s “separation of powers” doctrine, even where one of the offices involved may ostensibly be considered a local, not state, office.

This office has previously opined that a member of the General Assembly may not serve as a judge pro tem of the Recorder’s Court of Chatham County because that office had been given the “authority to adjudicate state offenses,” such as accepting “guilty and nolo contendere pleas in cases involving misdemeanor offenses against the laws of the state,” and was therefore an office that “would appear to be an office in which state judicial powers are discharged.”  1983 Op. Att’y Gen. U83‑58.  The Attorney General concluded there that such service in both the General Assembly and as a judge exercising this kind of state judicial authority was a violation of the “separation of powers” provision of the State’s Constitution.  Id.

As noted above, “recorder’s courts” are now “municipal courts.”  O.C.G.A. § 36‑32‑1(a).  Under general state law, municipal courts have been authorized to exercise state judicial powers in relation to a wide variety of criminal laws (e.g., O.C.G.A. §§ 16‑13‑30, 16‑13‑32, 40‑6‑10, 12‑9‑55, 16‑8‑14, 3‑3‑23, 16‑7‑21, 32‑6‑51, 40‑6‑248.1) and to impose penalties and fines for those offenses.  See O.C.G.A. §§ 36‑32‑1, 36‑32‑3, 36‑32‑4, 36‑32‑5, 36‑32‑6, 36‑32‑6.1, 36‑32‑7, 36‑32‑8, 36‑32‑9, 36‑32‑10, 36‑32‑10.1, 36‑32‑10.2, 36‑32‑10.3.  Such courts are “adjudicating state offenses” and discharging “state judicial powers.”  Therefore, notwithstanding that the office is a local office, the exercise of those powers is still a state law function and it would be a violation of the “separation of powers” doctrine for that to be undertaken by a member of the General Assembly.

This conclusion is consistent with decisions of the Georgia Supreme Court and Court of Appeals.  In Brown v. Scott, 266 Ga. 44 (1995), the court held that a juvenile intake officer was performing state judicial functions.  Given that, a county police officer, who was exercising executive powers, could not also act as an intake officer because that violated the constitutional separation of powers requirement.  Scott at 46.  The court concluded that “one cannot exercise both executive and judicial functions,” citing Vaughn v. State, 160 Ga. App. 283 (1981)[5], and Hawkins v. State, 130 Ga. App. 426 (1973)[6], in explaining its holding.

Defendants assert that the separation of powers doctrine set forth in our Constitution cannot be applied in this case because they are not officers of the State.  This assertion misses the mark.  Defendants have assumed the duties and obligations of State officers.  They are officers of the State.  As the Court of Appeals noted in Hawkins v. State [130 Ga. App. at 428]:  “While separation of powers may not always obtain within a political subdivision such as a municipality [Cit.], we are dealing here not with municipal but with state judicial functions.”  Thus, the separation of powers doctrine is applicable.

Scott, 266 Ga. at 46.

This explanation by the court distinguishes the taking of an action based upon the exercise of state judicial authority from an action which involves only a decision or action based solely upon authority provided for under a city’s charter.  For example, in Ward v. City of Cairo¸ 276 Ga. 391 (2003), a municipal court judge challenged the city’s oversight of his handling of a private probation contract, claiming that it violated the “separation of powers” doctrine by permitting the city’s executive and legislative branches to interfere in the municipal court’s judicial functions.  Ward at 391‑92.  In rejecting this claim, the court explained that the situation in Ward dealt only with the exercise of municipal, not state, powers.  Id.  This was contrasted with Brown v. Scott, which did implicate the constitutional “separation of powers” doctrine, because the issue there “‘[related] to State legislative, judicial and executive powers, and has no relation to municipal offices, created by the legislature in the discharge of strictly municipal functions.’ [quoting Ford v. Mayor and Council of Brunswick, 134 Ga. 820, 821 (1910).]”  Ward at 392‑93, quoting Building Auth. of Fulton County v. State, 253 Ga. 242, 247 (1984).  See also Tendler v. Thompson, 256 Ga. 633, 634 (1987) (Act requiring disclosure by county commissioners of personal interests in a zoning matter did not violate the separation of powers doctrine.); 1983 Op. Att’y Gen. U83‑55 (a city councilman may also serve as a magistrate).

Conclusion

Therefore, while the “separation of powers” doctrine does not apply where the issues relate solely to municipal officials utilizing municipal powers, it does apply where it concerns a municipal court judge exercising state judicial powers.  Because of that, the exercise of those state judicial powers by a legislator would be a violation of the constitutional prohibition against a member of one branch exercising the powers of another branch of government.  Therefore, it is my opinion that a member of the Georgia General Assembly may not serve as a municipal court judge.

Prepared by:

Dennis R. Dunn

Deputy Attorney General




[1] Judges serving prior to that date are not required to meet those qualifications, provided that the judge meets the training requirements set out in the law.  O.C.G.A. §§ 36‑32‑1.1, 36‑32‑27.

 

[2] As in the 2009 opinion, there is no indication in your current inquiry that this provision is applicable or whether there are any emoluments attached to this office that may be implicated in relation to Ga. Const. Art. III, Sec. II, Para. IV (b).  If this was an issue “that question could be raised and decided by either chamber of the General Assembly, both of which are empowered to be the ‘judge of the election, returns and qualifications of its members.’  Ga. Const. Art. III, Sec. IV, Para. VII; 1975 Op. Att’y Gen. 75‑109 (House of Representatives may determine whether one of its members who was a federal civil servant was qualified to serve).”  See 2009 Op. Att’y Gen. U2009‑2, n.3.

 

[3] “Pursuant to the principle of statutory construction, ‘Expressum facit cessare tacitum’ (if some things are expressly mentioned, the inference is stronger that those omitted were intended to be excluded) and its companion, the venerable principle, ‘Expressio unius est exclusio alterius’ (‘The express mention of one thing implies the exclusion of another’), the list of actions in [a statute] is presumed to exclude actions not specifically listed . . . , and the omission of [additional actions] from [the statute] is regarded by the courts as deliberate.”  2010 Op. Att’y Gen. U2010‑3.

 

[4] The 1991 opinion correctly reiterated that there is no per se conflict in a member of the General Assembly simultaneously serving as a city attorney.  See 1984 Op. Att’y Gen. U84-34.  However, the opinion also concluded that there was no conflict thereafter if the legislator, in his capacity as city attorney, also served as the solicitor and prosecutor of the municipal court.  The critical question here is whether the solicitor of the municipal court prosecutes violations of state law, as opposed to violations of municipal ordinances only.  If the former, as explained in this opinion, then the exercise of state judicial powers by a member of the legislative branch does create an impermissible conflict.  This is true regardless of whether those powers are exercised in the role of a judge or as a prosecutor.  Therefore, to the extent that 1991 Op. Att’y Gen. U91‑4 concludes otherwise, that portion of the opinion is withdrawn and the opinion itself is modified in accordance with the law as outlined herein.

[5] In Vaughn, a justice of the peace (who would now be considered a municipal judge) also served as a deputy sheriff when he issued a search warrant.  Vaughn, 160 Ga. App. at 283-84.  In addition to concluding he was not a neutral and detached magistrate, the Court of Appeals found a violation of the “separation of powers” doctrine because he was exercising both executive and judicial functions at the time of the issuance of the warrant.  Id. at 284.  See also Buttrum v. Black, 721 F. Supp. 1268, 1295-96 (N.D. Ga. 1989), aff’d, 908 F.2d 695 (11th Cir.), cert. denied, 459 U.S. 1156 (1990) (A justice of the peace cannot be a neutral and detached magistrate if he is also serving in an executive position as a deputy sheriff.)

 

[6] In Hawkins, a justice of the peace and magistrate issuing a search warrant was also a lieutenant in the local county police force.  Hawkins, 130 Ga. App. at 427.  In concluding he was not a neutral and detached magistrate, the Court of Appeals also held that this violated the “separation of powers” doctrine because the magistrate was engaging in a state, not municipal, judicial function and, therefore, exercising both executive and judicial functions simultaneously.  Id. at 428.