Georgia domestic cases, such as divorces, child custody and child support proceedings, legitimation actions, and family violence matters, normally fall within the jurisdiction of the State’s superior courts.(1) And where child custody is at issue, judges rather than juries always make the determinations.(2) Problematically though, superior court judges do not always preside over domestic matters in superior court cases. In answer to the crushing caseload often faced by relatively few superior court judges, Georgia law has created a mechanism for the use of judges from lower courts to preside over superior court matters when needed. This article explores the law governing designation of domestic cases to lower level judges and its implications.

The authority for designating lower level judges to serve in superior court actions derives from a provision in the Georgia Constitution, which states in relevant part:

"Provided the judge is otherwise qualified, a judge may exercise judicial power in any court upon the request and with the consent of the judges of that court and of the judge's own court under rules prescribed by law. The term 'judge,' as used in this article, shall include Justices, judges, senior judges, magistrates, and every other such judicial office of whatever name existing or created."(3)

Statutory law further specifies that a superior court judge may make a request for assistance either a) from a judge outside of the county, under designated circumstances which include i) the requesting judge’s disqualification, disability, illness, absence, or military duty, or ii) a determination of need for temporary additional assistance by a majority of the county’s superior court judges, or b) from a judge in the same county under the same temporary circumstances applying to inter-county requests, or under a determination of a majority of the county’s superior court judges that permanent additional assistance is needed.(4) For permanent designations, the statute further provides that “[i]f 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.”(5)

Requests for judicial assistance are made in writing and typically specify the time period and scope of matters for which judicial assistance is needed.(6) The “administrative judge” of the district receiving a request for assistance must designate a judge to preside as requested, through a written designation delivered to the requesting judge.(7) For requested inter-county assistance only, the written designation must “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.”(8) For orders for intra-county designations, no specific language is required, and any document including a request from an authorized judge of the requesting court asking for intra-county assistance will suffice.(9)

A party to a domestic action unfortunately cannot insist that the assigned superior court judge, rather than a designated lower court judge, hear any portion of the case or ultimately try the matter. Under governing law, a party can only challenge the authority of a magistrate judge or other non-superior court judge, to preside over a superior court case, on grounds that the non-superior court judge is not qualified to sit as a superior court judge or has not been properly designated to hear the case.(10) To assert either ground on appeal, however, the appellant must have raised an objection to the appointment of the lower court judge prior to the commencement of the trial or hearing which resulted in the appealable ruling.(11)

The qualification requirement for judicial assistance highlights perhaps the most troubling aspect of judicial designations. A superior court judge must be a) at least 30-years-old, b) a Georgia citizen for at least 3 years, and c) an attorney in good standing who has practiced law for at least 7 years.(12) In contrast, a magistrate judge in part must a) be at least 25-years-old, b) remain a resident of the county during his or her term of office, and c) have a high school diploma or GED.(13) Those reduced qualifications apply for magistrates because magistrate court jurisdiction is limited to non-family law, lesser civil and criminal proceedings, where the litigants stand to lose substantially less liberty or property than in proceedings occurring in higher courts.(14) Although only a lawyer-magistrate properly can be designated to preside over domestic cases in superior courts, a magistrate’s (or any other non-superior court judge’s) relative inexperience trying domestic cases and lack of knowledge of the governing law in the domestic forum can create major problems for family litigants. Not only can inconsistent and wildly inadequate rulings result from those shortcomings, but the designated judge’s exercise of discretion and judgment – no matter how woefully deficient in reality – will receive the same deference on appeal afforded to superior court judges, and will remain insulated from reversal to the same extent that a superior court judge’s ruling would.

(1) Ga. Const., Art. VI, Sec. III, Par. IV.

(2) See generally O.C.G.A. § 19-9-3(a); and Hargrett v. Hargrett, 245 Ga. 574, 266 S.E.2d 187 (1980).

(3) Ga. Const., Art. VI, Sec. I, Par. III.

(4) O.C.G.A. § 15-1-9.1(b).

(5) O.C.G.A. § 15-1-9.1(b)(2)(E).

(6) See, e.g., Seibert v. State, 294 Ga. App. 202, 205-206(1), 670 S.E.2d 109 (2008).

(7) O.C.G.A. § 15-1-9.1(e).

(8) Lewis v. McDougal, 276 Ga. 861, 861-862(1), 583 S.E.2d 859 (2003).

(9) Id.

(10) See generally Ga. Const., Art. VI, Sec. III, Par. IV; Lucas v. Lucas, 273 Ga. 240, 241-242(3), 539 S.E.2d 807 (2000); Troncone v. Troncone, 261 Ga. 662, 663, 409 S.E.2d 516 (1991); and Seibert, supra, 294 Ga.App. at 205-206(1).

(11) Troncone, supra, 261 Ga. at 663(3); Bennett v. Jones, 218 Ga.App. 714, 715(1), 463 S.E.2d 158 (1995).

(12) O.C.G.A. § 15-6-4(a).

(13) O.C.G.A. § 15-10-22(a).

(14) O.C.G.A. § 15-10-2.

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