This is in response to your request for an opinion on whether the Oconee County Board of Commissioners may employ an attorney to prosecute misdemeanor traffic cases and other cases within the jurisdiction of the Oconee County Probate Court. Your request indicates that the probate court does not presently have an attorney to prosecute misdemeanor traffic offenses and other offenses within the jurisdiction of the court. Your request also indicates that the court has not requested the assistance of the district attorney pursuant to O.C.G.A. § 40‑13‑21. For the reasons stated below, it is my opinion that, in a misdemeanor traffic case before the Oconee County Probate Court where the probate judge either has not requested the assistance of the district attorney or has requested assistance but the district attorney has refused to conduct the trial or to designate a member of his or her staff to conduct the trial, the board of commissioners would be free to provide an attorney to prosecute the case. It is also my opinion that, in a case under the jurisdiction of the probate court other than a misdemeanor traffic case, the board of commissioners would be free to provide an attorney to prosecute the case.

Code section 40‑13‑21(c) states that:

In any traffic misdemeanor trial, a judge of the probate court, upon his or her own motion, may request the assistance of the district attorney of the circuit in which the court is located or solicitor-general of the state court of the county to conduct the trial on behalf of the state. If, for any reason, the district attorney or solicitor-general is unable to assist, the district attorney or solicitor-general may designate a member of his or her staff to conduct the trial on behalf of the state.

Thus, in a particular misdemeanor traffic case before a probate judge, the judge has the discretionary authority to request that the district attorney or solicitor-general conduct the trial.[1] The responsibility of the district attorney in this regard is discretionary as well. See 1991 Op. Att’y Gen. U91‑6. For example, the district attorney could agree to conduct the trial, could designate a member of his or her staff to conduct the trial, or could refuse the request altogether.

PREEMPTION

As your request involves the interplay between a proposed county action and state law, the issue of preemption must be addressed. In Franklin County v. Fieldale Farms Corp., 270 Ga. 272, 274 (1998), the court stated that “state law may preempt local law expressly, by implication, or by conflict.” The court noted that “[g]enerally preemption is based on legislative intent.” Id. at 273.

Since O.C.G.A. § 40‑13‑21(c) is completely discretionary on both probate judges and district attorneys, it cannot be said either that the Code section constitutes an express preemption of the field or that it is such a part of a comprehensive statutory scheme that it constitutes an implied preemption. If the General Assembly wanted to preempt the field when it enacted this statute, it could have easily done so by stating that a probate judge, if he or she desired a prosecuting attorney for a particular misdemeanor traffic case, must request the assistance of the district attorney and that the district attorney, if so requested by the probate judge, must conduct the trial for the misdemeanor traffic case.

Concerning preemption by conflict, Article III, Section VI, Paragraph IV(a) of the Georgia Constitution provides that:

Laws of a general nature shall have uniform operation throughout this state and no local or special law shall be enacted in any case for which provision has been made by an existing general law, except that the General Assembly may by general law authorize local governments by local ordinance or resolution to exercise police powers which do not conflict with general laws.

There is no applicable provision of general law, in O.C.G.A. § 40‑13‑21(c) or otherwise, which addresses the situation of providing an attorney to prosecute a particular misdemeanor traffic case before a probate court when the probate judge either does not request the assistance of the district attorney or requests assistance but the district attorney refuses to conduct the trial or to designate a staff member for that purpose. Additionally, O.C.G.A. § 40‑13‑21(c) is directed not to county governing authorities but to individual probate judges and district attorneys. Therefore, there would appear to be no conflict between that Code section and a local resolution or other decision of a county governing authority providing an attorney to prosecute a particular misdemeanor traffic case before a probate judge when the judge either has not requested the assistance of the district attorney or has requested assistance but the district attorney has refused.

Because O.C.G.A. § 40‑13‑21(c) does not constitute an express or implied preemption and there would seem to be no preemption by conflict, that Code section would not be a bar to a county governing authority providing a prosecuting attorney for the probate court in a misdemeanor traffic case where the probate judge either has not requested the assistance of the district attorney or has requested assistance but the district attorney has refused. Of course, a case under the jurisdiction of a probate court other than a misdemeanor traffic case would not be affected by O.C.G.A. § 40‑13‑21(c), and that Code section would not be a bar to a county governing authority providing a prosecuting attorney under that circumstance.

POWER OF A COUNTY TO PROVIDE AN ATTORNEY TO

PROSECUTE A CASE BEFORE THE PROBATE COURT

While O.C.G.A. § 40‑13‑21(c) may not be a bar to a county providing a prosecuting attorney for the probate court under the conditions set forth above, the inquiry does not end there. In Stephenson v. Board of Commissioners, 261 Ga. 399, 400 (1991), the court stated that “neither the counties of this state nor their officers have the power to do any act, make any contract, or incur any liability not expressly authorized by a legislative grant of power or necessarily implied from an express legislative grant of power.” However, the court found that “the legislature has granted the board the implicit and exclusive power to employ counsel for county officers.” Id.

In Templeman v. Jeffries, 172 Ga. 895, 898 (1931), the issue was whether “the board of commissioners of Fulton County, in the absence of express legislative authority, [has] implied power to appoint a county attorney[.]” The court found that “[f]rom the general powers conferred upon the commissioners of Fulton County . . . and by general laws to which no specific reference has been made, the commissioners are by clear implication authorized to employ counsel to defend suits brought against the county in civil matters.” Id. at 899. The court stated that:

Furthermore, we are of the opinion that the board of county commissioners of Fulton County has the implied authority to employ counsel to advise it in the discharge of its duties, in the preparation of the innumerable orders which it must pass, in the making of various contracts which it must execute in behalf of the county, and in other transactions in which the county engages. Without the aid of competent legal advice it would be difficult, if not impossible, for the county commissioners to discharge their various duties in a proper and satisfactory manner. Having reached the conclusion that the county commissioners are authorized by clear implication to employ counsel [f]or the county, we see no good reason why such authority should be confined in its exercise to cases or occasions requiring the employment of counsel. This would necessitate various contracts of employment, or various appointments of counsel, to meet the oft-recurring necessities of the county. A regular county attorney could render better service than attorneys occasionally employed in the legal business of the county. The appointment of a regular county attorney to represent the county and to advise the commissioners in the discharge of the various matters in which the county engages could be secured more cheaply than by the employment of counsel pro hac vice. So we are of the opinion that the county commissioners of Fulton County acted within the scope of their authority when they appointed Mr. Shelton to the position of county attorney for Fulton County.

Id. at 900‑01.

In addition, Article IX, Section II, Paragraph I(a) of the Georgia Constitution states that the “governing authority of each county shall have legislative power to adopt clearly reasonable ordinances, resolutions, or regulations relating to its property, affairs, and local government for which no provision has been made by general law and which is not inconsistent with this Constitution or any local law applicable thereto.”[2] In Board of Commissioners v. Guthrie, 273 Ga. 1, 3 (2000), the court noted that “[a] county may enact regulations to protect the health, safety, and general welfare of the public under its police powers.”

From the above, it is clear that a county governing authority has the implied power not only to retain counsel for individual cases but also to hire a regular county attorney. A county governing authority also has the authority to adopt resolutions relating to its property, affairs, and local government for which no provision has been made by general law, as well as the authority to enact regulations to protect the health, safety, and general welfare of the public pursuant to its police powers. Moreover, in State Bar of Georgia Formal Advisory Opinion No. 86‑3 (86‑R3), the Georgia Supreme Court noted that “[t]he county attorney is, however, authorized to prosecute violations of county ordinances on behalf of the county. When he or she is acting in such a capacity the duty to the county is similar to that of a solicitor to the state.” If a county can retain counsel for individual cases and hire a regular county attorney who may act as a prosecutor for violations of county ordinances, it follows that a county should also be able, with certain exceptions, to provide an attorney to prosecute a case in the probate court.[3]

Therefore, in a traffic misdemeanor case where a probate judge either has not requested the assistance of the district attorney or has requested assistance but the district attorney has refused to conduct the trial or to designate a member of his or her staff to conduct the trial, it is my opinion that, unless otherwise provided by a local law passed by the General Assembly for the specific county, the county governing authority would be free to provide an attorney to prosecute the case.[4] It is also my opinion that, in a case under the jurisdiction of a probate court other than a misdemeanor traffic case, the county governing authority would be free, unless otherwise provided by a local law passed by the General Assembly for the specific county, to provide an attorney to prosecute the case.

CONCLUSION

Having examined the local laws enacted for Oconee County by the General Assembly and having found nothing that would prohibit the proposed action of the Oconee County Board of Commissioners, it is my opinion that, in a misdemeanor traffic case before the Oconee County Probate Court where the probate judge either has not requested the assistance of the district attorney or has requested assistance but the district attorney has refused to conduct the trial or to designate a member of his or her staff to conduct the trial, the Oconee Board of Commissioners would be free to provide an attorney to prosecute the case. It is also my opinion that, in a case under the jurisdiction of the probate court other than a misdemeanor traffic case, the board of commissioners would be free to provide an attorney to prosecute the case.

Prepared by:

KYLE A. PEARSON

Assistant Attorney General


[1] Although O.C.G.A. § 40‑13‑21(c) provides that a probate judge may request the assistance of either the district attorney or the solicitor-general, O.C.G.A. § 40‑13‑21(b) states that a probate court only has jurisdiction to try misdemeanor traffic cases in counties “in which there is no city, county, or state court.” In Fausnaugh v. State, 244 Ga. App. 263, 264‑65 (2000), the court found that when a state court exists, the probate court’s jurisdiction over misdemeanor traffic cases is lost by operation of law. In a county with a state court, then, it does not appear that a probate judge could request the solicitor-general of the state court to conduct a particular trial in a misdemeanor traffic case, as the existence of the state court would deprive the probate court of jurisdiction to try the misdemeanor traffic case. Based on this, and on my understanding that Oconee County does not have a state court, the analysis of O.C.G.A. § 40‑13‑21 undertaken herein does not further include the role of the solicitor-general in this context.

[2] As previously set forth, there is no applicable provision of general law which addresses the situation of providing an attorney to prosecute a particular misdemeanor traffic case before a probate judge when the judge either does not request the assistance of the district attorney or requests assistance but the district attorney refuses to conduct the trial or to designate a staff member for that purpose.

[3] O.C.G.A. § 15‑18‑66(b)(9), which deals with the duties of the solicitors-general, states that they may “request and utilize the assistance of any solicitor-general, assistant solicitor-general, district attorney, assistant district attorney, or other attorney employed by an agency of this state or its political subdivisions or authorities in the prosecution of any criminal or civil action.” This Code section plainly contemplates the existence of prosecuting attorneys other than district attorneys, solicitors-general, and their respective assistants.

[4] In 1999 Op. Att’y Gen. U99‑6, the issue was whether a probate judge “may employ an attorney to prosecute criminal cases subject to the jurisdiction of the probate court if the county government is unwilling to employ a prosecuting attorney.” I concluded that a probate judge may not employ such a prosecuting attorney. Id. Among other things, I discussed O.C.G.A. § 40‑13‑21(c), and noted that a “probate judge may request, on a case by case basis, the district attorney . . . to conduct a criminal trial of certain types of cases.” Id. I also stated that “[i]n the alternative, a local government . . . may otherwise provide for the probate court to have a prosecuting attorney.” Although not essential to the conclusion reached in that opinion, these statements are consistent with the result reached herein. Indeed, if a probate judge does not request the assistance of the district attorney for a particular misdemeanor traffic case (or if the judge requests assistance but the district attorney refuses), then in the alternative the county governing authority may generally provide a prosecutor.