Georgia Uniform Superior Court Rule 43.6: a Solution in Search of a Problem

JurisdictionGeorgia,United States
Publication year2023
CitationVol. 74 No. 2

Georgia Uniform Superior Court Rule 43.6: A Solution in Search of a Problem

Robert V. Rodatus

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Georgia Uniform Superior Court Rule 43.6: A Solution in Search of a Problem

Judge Robert V. Rodatus*

"I made my bones when you were going out with cheerleaders."1

On February 11, 2021, the Supreme Court of Georgia approved Uniform Superior Court Rule 43.62 (Rule) relating to mandatory continuing education requirements for assisting superior court judges.3 The amended rule provides:

A judge appointed as an assisting superior court judge from another class of court pursuant to OCGA § 15-1-9.1 and who sits as a superior court judge for more than 15 days during a calendar year, or handles a final hearing or bench or jury trial as a superior court judge, shall attend superior court specific judicial education programs or training (the "training") totaling a minimum of 12 hours per calendar year.
The training shall focus on the specific subject matters to be adjudicated by the assisting superior court judge. It shall be the responsibility of the chief superior court judge for each circuit issuing appointments under OCGA § 15-1-9.1 to (a) provide and/or approve the training to the assisting superior court judge, and (b) ensure that all assisting superior court judges in the circuit comply with this rule. This training requirement is in addition to any other mandatory continuing education requirement the judge may have from his or her respective court. Completion of this training requirement shall be

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reported to and verified by the Institute of Continuing Judicial Education.4

Uniform Superior Court Rule 43.6 presents a hurdle for superior court judges seeking judicial assistance, and for senior judges—retired judges with at least ten years of experience on the bench—being able to assist them. Heretofore, there have been no continuing education requirements for senior judges. There still is not by statute, only by court rules. Although this Article addresses the application of this new Rule to senior judges, some of the reasoning would apply to assistance by active judges from other classes of courts.

I. Rule Conflicts with Statute

The Rule conflicts with the statute it seeks to incorporate, section 15-1-9.1 of the Official Code of Georgia Annotated.5 The Georgia Code provides: "The rules of the respective courts, legally adopted and not in conflict with the Constitution of the United States or of this state, or the laws thereof, are binding and must be observed."6

For example, a local rule cannot take precedence over a statute. "However, if the application of the local court rule contravenes a statute, the local rule must yield to the statute. Local court rules 'may control the flow of business, the hearing of cases, etc., but may not contravene the substantive framework of the CPA.'"7

The only requirements of O.C.G.A. § 15-1-9.1 are that a judge requested to serve in superior court is defined as follows: "Justices, judges, senior judges, magistrates, and every other such judicial officer of whatever name existing or created."8 Section 15-1-9.3 of the O.C.G.A9 specifies the requirements for a state court or juvenile court judge to be certified as a senior judge:

Any state court or juvenile court judge, whether or not said judge is a member of the retirement fund created by Chapter 23 of Title 47, who ceases holding office as a judge and who has at least ten years in any combination of service as judge of a state court or juvenile court at the time of ceasing to hold office and who is not eligible for appointment to

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the office of senior judge under any other law of this state may be appointed as a senior judge as provided in this Code section.10

There is no continuing educational requirement in either statute. There is no provision to add a requirement by rule. Obviously, the senior judge must meet the requirements of a superior court judge as set out in the Code.11 Further, the requirements to become a senior judge—ten years of service in one or combination of courts—would meet the requirements to be a superior court judge.12

No individual shall be judge of the superior courts unless, at the time of his or her election, he or she has attained the age of 30 years, has been a citizen of the state for three years, has practiced law for seven years, and is a member in good standing with the State Bar of Georgia and has been duly reinstated to the practice of law in the event of his or her disbarment therefrom.13

There are other statutes that mandate the promulgation of certain rules. For example, the statute enacting the current Judicial Qualifications Commission (JQC) provides: "The investigative panel shall promulgate rules for the commission's governance which comport with due process and are not otherwise provided by the Georgia Constitution or this Code section."14 The designation statute has been amended to delineate what type of case a senior judge may hear:

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

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