This is in response to your letter of June 25, 2002, as supplemented by that of July 26, concerning the disparity of treatment Fulton County accords the recently appointed nineteenth superior court judge in relation to the other eighteen judges of the Atlanta Judicial Circuit. You have identified inequalities in staffing (e.g., law clerks, secretaries, court reporters, case managers and the like) as well as in the funding of a judge’s operating budget required for the proper maintenance of his office, including such items as office supplies, equipment repairs, postage, and printing. Specifically, you point out that while each of the eighteen other superior court judges of the circuit is provided with an office operating budget of $11,150, the most recently appointed judge does not receive any operating budget at all. Additionally, he is not provided a judicial assistant (secretary), staff, or senior attorney (i.e., law clerk), court reporter or case manager which each of the eighteen other judges is provided.

The opinion you request is a sequel to the unofficial opinion issued by this office earlier this year, 2002 Op. Att’y Gen. U2002-1, opining that Fulton County was not authorized to pay a smaller county salary supplement to the newly appointed judge than that which it was paying to each of the eighteen other judges of the Atlanta Judicial Circuit. At the direction of the Governor, the state initiated proceedings for mandamus, injunctive and declaratory relief in Fulton Superior Court. That court, through a judge sitting by designation, granted the mandamus and injunctive relief sought, enjoining Fulton County “from refusing to pay the nineteenth judge of the Atlanta Judicial Circuit the same salary supplement (presently set at $30,600), which the other judges of that Circuit receive.” State v. Fulton County, Civil Action No. 2002 CV 50759 (Fulton Sup. Ct. May 28, 2002) at 1-2.

For the reasons which follow, I reach the same conclusion respecting the county’s withholding from the nineteenth judgeship the incidental expenses (i.e., the staffing and office operating expenses) which are provided for all other judges to enable them to properly perform their official judicial responsibilities. There are two reasons for this conclusion. One is the interrelationship of applicable statutes; the other is the constitutional imperative of “equal protection.”

1. The Applicable Statutes

The focus of 2002 Op. Att’y Gen. U2002-1 was on the disparity in county salary supplements; however, the legislation on which the opinion and the Fulton Superior Court order relied is by its terms not limited to the salary supplement paid by the county. The 2001 legislation, which amended O.C.G.A. § 15-6-2 to provide for the additional judgeship, expressly provides that

[t]he compensation, salary, and contingent expense allowance of said additional judge of the Atlanta Judicial Circuit shall be the same as that of the other judges of the superior court of the Atlanta Judicial Circuit. Any salary supplements heretofore enacted by the county of said circuit shall also be applicable to the additional judge provided for in this Act.

2001 Ga. Laws 1060, 1065 § 26 (emphasis added). What is included in the term “contingent expenses” in the quoted provision is illustrated by O.C.G.A. § 15-6-24, which states that

[a]ny contingent expenses incurred in holding any session of the superior court, including lights, fuel, stationery, rent, publication of grand jury presentments when ordered published, and similar items, such as taking down testimony in felony cases, etc., shall be paid out of the county treasury of such county upon the certificate of the judge of the superior court and without further order.

Even if strictly construed, O.C.G.A. § 15-6-24 would clearly include, as contingent expenses, the operating budget (currently $11,150) and court reporter (current salary range $44, 266 to $62,856) which Fulton County provides for each of the other eighteen judges of the circuit. What is conclusive as to the county’s legal obligation to provide the same level of funding and services for the additional judge is the determination by the Supreme Court of Georgia that O.C.G.A. § 15-6-24 is to be construed expansively, not narrowly, and that the specific expenses enumerated are not words of limitation but, rather, illustrative of the sort of expenses, including all of the staffing and operational expenses here in question, which a county is legally obliged to provide to enable a superior court judge properly to carry out his or her constitutional judicial duties and responsibilities. See Grimsley v. Twiggs County, 249 Ga. 632 (1982). In affirming a grant of mandamus absolute requiring county commissioners to pay for temporary clerical help in the clerk’s office, the court, looking at the statute now codified as O.C.G.A. § 15-6-24, said:

We do not view [the statute] as a limitation upon the inherent power of the court, nor do we find it to be a grant of authority the court did not already possess. We rather find [the statute] to be legislative recognition of the power which the judicial branch must possess because of its constitutional nature as a separate and equal branch of government.

Id. at 634. Construing the term “contingent expense allowance” of the 2001 amendment of O.C.G.A. § 15-6-2 in pari materia with the expansive breadth of the term “contingent expenses” in defining a county’s legal support obligation under O.C.G.A. § 15-6-24, as called for by the Supreme Court of Georgia’s decision in Grimsley, it is my opinion that Fulton County’s support obligation extends to all of the operational and staffing expenses to which you have referred.

2. Equal Protection

Georgia’s constitutional and legislative design for the state’s superior court judges is one of statewide uniformity in jurisdiction, power, dignity, and qualifications, as well as in state-supplied salaries. GA. CONST. Art. VI, Sec. I, Par. V; Art. VI, Sec. VII, Par. II; O.C.G.A. § 45-7-4(a)(20). The sole subclassification authorized by the Constitution and laws of Georgia respecting salaries paid to superior court judges is that of a permissible county-wide classification based upon an individual county’s authorized payment of a salary supplement in addition to the uniform state salary determined by the General Assembly. GA. CONST. Art. VI, Sec. VII, Par. V; O.C.G.A. § 45-7-4(a)(20).

Georgia’s constitutional “equal protection” clause, GA. CONST. Art. I, Sec. I, Par. II, requires uniform treatment to all members who come within the same class. Citizens & Southern Nat’l Bank v. Mann, 234 Ga. 884, 887 (1975). The question of the reasonableness of Fulton County’s attempt to create its own subclassifications of previously seated and newly seated superior court judges in the Atlanta Judicial Circuit need not be reached because, as a threshold matter, Fulton County is wholly lacking in any constitutional or general law authority to carve out or create a new subclass of superior court judges on its own, whether for purposes of providing unequal salary supplements, unequal treatment in providing contingent expense allowances, or any other funding reasonably necessary to the proper operation and performance of the superior court judges in the judicial circuit in carrying out their constitutional and statutory duties.

However, even were one to assume that the county had any lawful authority at all to carve out a subclassification of superior court judges on its own, the exercise of that authority would still have to be reasonable. Reasonableness, in my opinion, is negated in this case in light of the unquestioned state policy, as expounded in the previously cited constitutional provisions and statutes of the state, providing for statewide uniformity of treatment (i.e., “equal” treatment) of all superior court judges in jurisdiction, power, dignity, and qualifications, as well as in salary and allowances, except for those differences which are themselves expressly permitted by the Constitution (e.g., the county’s payment of a local salary supplement). For these reasons, it is also my opinion that the disparity of county support for the expenses to which you refer in your request (staffing and operating budget) cannot constitutionally be the subject of discriminatory treatment respecting different judges of the same judicial circuit.

Accordingly, it is my unofficial opinion that Fulton County’s obligation to accord equal treatment to all superior court judges of the Atlanta Judicial Circuit, already judicially determined with respect to county salary supplements, is equally applicable to all county funded support services, including staffing (e.g., law clerks, secretaries, court reporters, case managers, and the like) and the operating budget required for a superior court judge properly to perform his or her constitutional and statutory duties.

Prepared by:

Senior Assistant Attorney General