*1 Decided June July 28, denied 1995. Reconsideration Harris, Joe Frank appellant. Bowers,
T. At- Joseph Campbell, Attorney, Michael J. District torney General, Attorney Susan Boleyn, V. Senior Assistant Gen- eral, Brooks, General, Attorney Marla-Deen Assistant for appellee. THE
S95A0488. MASSEY v. STATE.
Benham, Chief Justice. Appellant County Superior was convicted in of Fulton Court of robbery, imprisonment, armed false kidnapping, and appellant’s assault. The trial and who sen- appellant tenced after the hac jury guilty pro returned verdicts was a County vice magistrate Magistrate the Chief of Fulton to OCGA 15-1-9.1 court. to assist Prior to trial, ap- of commencement his trial as well as motion new pellant supe- contended that the elected to rior court to assist the of the court violated the Geor- gia constitutional be elected. denied,1 pre-trial Both the motion and the motion for trial were new appeal and this followed. presented The State the first evidence while victim was
using home, entered, the bathroom in appellant put a throat, knife to the took pocket. victim’s and from the victim’s $120 then tied the victim’s arms and him forced into the attic where appellant tied the victim’s feet with an extension cord. Later that evening, appellant tape returned and used duct reinforce the victim’s bindings. imprisoned, While the victim used a coat hanger scratch piece plywood the letter “M” on a in the attic. The next morning, appellant captivity. released the victim from The second victim testified that she entered after home he told her person that a she was there. into a went back room wearing only returned a shirt and carrying what woman be- lieved bodily to be a knife. He then her threatened harm unless performed she grabbed oral sex on him. She he resisted and her left pre-trial attorney denied the motion after both the assistant district rejected affirmatively opportunity trial counsel to have another portion appel decide the issue. A of the of Fulton Court denied the lant’s motion for trial that raised about new concerns of the preside. breast, inflicting injuries She kicked the left scars.
escaped. Investigating
drap-
executing
officers
a search warrant found
attic,
ery
plywood
along
cord and an extension cord
with a
plank with the letter “M” scratched on it. The State also tendered
photographs of scars on the
victim. The evi-
left breast
female
dence
conclude
was sufficient
to authorize a rational
trier
fact to
*2
beyond
guilty
was
a reasonable doubt of armed rob-
Jack-
bery,
imprisonment
kidnapping,
false
and
assault.
Virginia,
son v.
(99
560) (1979).
2781,
2. The
presided
appellant’s
who
over
trial was
(b) (2), (e),
nated to do so
to the terms of OCGA 15-1-9.1
§
(f) and,
consequence,
statutorily
ability
as a
was
vested with the
discharge
to
powers
authority
all duties and exercise all
of the
superior court.
(g).
magistrate
was also consti-
tutionally empowered
judicial power
superior
to exercise the
of the
VI,
I,
court.
Ga. Const.
Art.
Sec. Par. III.
contends
judgment of conviction is null and void because OCGA 15-1-9.1 vio-
requirement
superior
lates the constitutional
court
superior
elected since it authorizes
not elected to
court to sit
superior
judges.
court
superior
The Constitution
court and state
“[a]ll
court judges
nonpartisan
shall be elected on a
. . .”
basis.
1983 Ga.
Const.,
VI,
VII,
Art.
Sec.
Par. I. All the
of the
Court
position,
of Fulton
have been elected to that
or are recent
gubernatorial appointees
positions
to vacant
who will run for election
VI,
VII,
in
general
the next
election. See Ga. Const.
Art.
magistrate
Par. III. The
over
trial was not a
superior
elected,
judge
constitutionally required
court
who is
to be
and his
him
superior
to assist the
court did not make
a
superior
Rather,
court,
judge.
magistrate
court
he was a
of the
qualified
court,
requested by
to serve on the
who was
judicial power
supe-
court
time of need to exercise the
court,
request
rior
to which
magistrate
court assented. OCGA
(b) (2)
judiciary
appoint-
15-1-9.1
does not
to make
authorize
courts; instead,
permits
designated
ments to the benches of other
judicial
power
requesting
officer from one court to exercise the
requesting
court in limited circum-
court
an effort to assist the
magistrate
preside
stances. The
of the
to
over
statutory
trial cloaked
ity
and constitutional author-
judicial power
court,
to exercise the
but did
judge. Consequently,
magistrate’s
him
make
des-
preside
ignation
court did not violate the constitutional
be elected.2
preside
3. The
trial was
designated, by separate
orders,
also
over other matters
during specified periods
of time.
contends
that the cumulative effect of such orders was the unconstitutional
permanent, part-time superior
judgeship.
creation of a
disagree.
We
statutory
authority
A
does not have
or inherent
to create a
appointments
office and make indefinite
thereto. Cramer v.
Spalding
(3) (a) (409
County,
the
when taken
and,
court was limited in duration to certain
even
did not amount to an indefinite
judicially-created judicial position. Compare
Spalding
Cramer v.
_
_
County, supra. Compare
(Fla.
Wild,
v.
also Dozier
S2d
2 During
hearing
portion
the
appel
of
motion
in
for new trial
which
lant
claimed that
violated the constitutional
elected,
defense counsel
informed the court that he also contended that
the
by
legislative
statute was an
procedures
unconstitutional
effort
the
branch to control
the
of
judicial branch,
thereby violating
separation
powers
I,
II,
the
the
doctrine of Art.
Par.
Ill of the
hearing,
State Constitution.
In the order entered
after
the trial court stated
specifically
denying
it was
Grounds One and Two of
motion for new trial.
grounds
Neither of those
asserted that OCGA 15-1-9.1 was an
unconstitutional
violation of
separation
powers
pass
doctrine. We decline this attack on the constitutional
ity
clearly appear
point
properly
15-1-9.1 as it
does not
was
raised
the trial
State,
distinctly passed
(177
the trial court. Tant v.
court and
on
4.
ap-
The order
to which the
pellant’s
power
authority
trial clothed the
14-18,
Appellant’s
court for June
1993.
trial commenced
on June
but did not conclude until June 29 because a one-week
granted
continuance was
mid-trial.
now contends his con-
viction was void because the magistrate assisted the
beyond
specified
the time
in the
reviewing
order. After
transcript,
granted
trial
we conclude that
the continuance was
at
behest and that
will not now be heard to com-
State,
(3) (440
of a result he induced.3 Crozier v.
plain
assault was over-inclusive.
See
208 Ga.
574) (1993). Appellant’s
SE2d
object
charge
failure to
at the
charge conference or when objections
were
or to reserve his
right
object
appeal, procedurally
on motion for
new trial
on
bars
review of this enumeration. Golden v.
appellate
Fletcher, Justice, Presiding concurring specially. agree
I Court of Fulton did violate either Constitution or the statute when it as- signed part-time Magistrate Benjamin W. to serve a su- Spaulding perior days for 58 in 1992 and 119 I 1993. write case, presentation appellant sought 30-day In the middle of the State’s of its continu *4 ground surprise: kidnapping ance on the the State’s evidence established that the occurred 19th, despite averring kidnapping on the 18th the indictment the that had occurred prepared charge. had an alibi defense to meet the indictment’s See Caldwell v. morning Ga. The next defense counsel might re-present to withdraw his motion for continuance order that he it completion hearing proffer of the State’s case. After from the State on the rest of its evi dence, waiting the trial court determined that there would be no benefit until the to State looking closed its case to decide the motion for continuance. Defense counsel reiterated was continuance, willingness grant up for a and the trial court stated its a continuance for to a week. While the trial court believed that defense counsel had withdrawn his motion for con leaving sponte, tinuance the trial court to act sua we conclude that defense counsel did not only time, withdraw his motion but wished to assert it at another and that the trial court timing unnecessary deemed the of the motion to resolution of the merits.
separately point problems majority opinion’s out with the reason- ing superior unhealthy and the court’s designation reliance on the statute. In majority opinion
1. Division addresses whether the des- ignation Massey’s criminal trial superior superior court violates the constitutional judges court designation elected. It concludes that a under OCGA appointment; therefore, 15-1-9.1 is not an a magistrate is not a su- perior I judge. Although agree court that designating magistrate preside in superior court does not make the an unelected superior judge, begs question. court that conclusion question county’s practice repeatedly whether a nating part-time magistrates to serve as judges cre- has permanent ated part-time superior judges who are not account- public able through to the process. the electoral I do not foreclose the possibility county’s that the of continually method designating magis- trates to serve on court bench could result an indefi- permanent nite or de facto that violates both the consti- tution I agree statute. majority, however, assignment here, orders taken did not have the cu- mulative effect of indefinitely appointing a magistrate as a court judge.
Instead, the number assisted, of orders issued and length of time Spaulding order, served under each and total days number of he served on the court bench demonstrate that he served on periodic, permanent, rather than basis. Spaulding assisted days for 58 in 1992 and for 119 in 1993. To obtain help his for matters other hearings, than bond the chief judge issued ten assignment orders to assist five eighteen 1992 and orders eight assist judges in Only requested one order Spaulding’s help for many as ten days. Twenty consecutive orders sought his help day. for a Because Spaulding’s service did not amount per- to a manent, part-time judgeship, to the bench did not violate the constitutional mandate of elected court judges.
2. Similarly, the assignment orders did not violate designa tion statute. OCGA 15-1-9.1 the chief any may make a request written chief other court within county when a majority of the requesting court’s judges determines the court’s business assistance of an judge.4 additional The term “temporary assistance” help means for a limited time. We have held that it does not mean (b) (2) (C) (1994).
637 interpret “tempo judge.5 I would now the indefinite rary prohibit assignment orders to also a succession of assistance” Ap appointment.6 plyi that, taken amounts to an indefinite sufficiently ng definition, the orders were limited this court’s scope temporary the stat in time and to constitute assistance under ute. Nevertheless, the state’s courts have abused provide The statute was a mechanism for
nation statute. courts to receive enacted disqualified, judicial dis- assistance when a is abled, ill, absent, or or when a court’s business positions help.7 part-time full- It was never intended to convert judgeships magistrates court bench. time As or to elevate by shortage been, has it difficult as the crisis caused statutory justify circumventing does not guards placed the constitutional and safe- on the state’s courts. past years, increasing
In the number of two this court has seen an appeals part-time magistrates presided. from trials in which have appeals problems These illustrate the when without sufficient experience felony training assigned preside or are over exclusively domestic trials which our State Constitution reserves superior courts.8 especially potential
I am troubled conflict created when attorneys, practicing including part-time magistrates, assigned are judges.9 Assembly conflicts, serve as To avoid these the General has prohibited superior ticing prac- judges from court and full-time state court practice part-time judges magis- and restricted the and out that a
law10 points Qualifications trates.11 The Judicial Commission practices “occupies very position law sensitive with refer- ence to the Code of Judicial Conduct.”12This dual role makes it more appearance impropriety pro- difficult for to avoid the public impartiality judiciary, mote confidence as the 5 Spalding County, See Cramer v. Ga. 572 261 6 1995). Wild,_S2d_(Fla. v. See Dozier 7 (b). See OCGA 15-1-9.1 8 VI, IV, See Ga. Const. of Art. Par. I. 9 See, (1989) e.g., Advisory Op. inappropriate (concluding Formal 86-2 presides represent who issues criminal warrants or over criminal trials to criminal de exclusively); Op. regularly fendants see also Judicial Comm. No. 200 Qualifications lawyer (noting judge). the inherent conflict between the role of 15-6-5; (b). See OCGA 15-7-21 §§ (b) (prohibiting part-time practicing See from OCGA 15-7-21 state court any they jurisdiction); their own court or in matter where have exercised OCGA 15-10-22 (b) (prohibiting magistrates attorneys practicing appear who are from in their own court or ing they jurisdiction); matter where have exercised see also Court and Bar Rules, Conduct, Application p. (describing of the Code of restrictions on the Judicial 13-17 practice by part-time judges). of law Op. Judicial Comm. No. 31 Qualifications many opinions subject commission’s illustrate.13 problems Because of consequences these and the serious con- felony trials, nected with and domestic counties need to curb their practice designating part-time magistrates to sit as minimum, judges. assigning At courts should refrain from part-time magistrates felony and domestic trials. Rather, magistrates’ courts should restrict work to presiding hearings over bond and other non-jury proceedings. *6 July Decided July 28,
Reconsideration denied Scholar, Ronald J. appellant. Slaton,
Lewis R. Attorney, Hibbert, District Henry A. Carl P. Greenberg, Assistant Attorneys, appellee. District
S95A0497, S95X0499. GEORGIA DEPARTMENT OF MEDICAL ASSISTANCE v. COLUMBIA al.; CONVALESCENT CENTER et
and vice versa. Justice.
Sears, appeal This cross-appeal involve the constitutionality of two 9-2-60, statutes. One is OCGA provides which if no written order is taken in years, an action for five the action “shall automati cally (the stand dismissed” statute”). “automatic dismissal The other 9-10-2, is OCGA which provides that certain judicial actions taken cases which party the state is unless, are void among other things, the Attorney General was given five written notice of the hearing or trial that (the resulted in action “state notice Op. 19, 31, 45, See Judicial 48, 53, 59, 69, 87, 88, 91, 107, Qualifications Comm. Nos. 109, 121, 134, 137, 142, 151, 154, 155, 157, 175, 177, 180, 183, and 185. Section 9-2-60 in full as follows: (a) purposes section, For the of this Code an order of continuance will be deemed an “proceedings” include, order and the word shall be held to but shall not to, appeal be limited an special from an award of assessors or a master a condem- proceeding. nation (b) Any proceeding action or other filed in of the courts of this state in which period years no written order is taken automatically for a of five shall stand against dismissed with party plaintiff. costs to be taxed (c) When section, an action is plaintiff dismissed under this Code if the recom- mences the following action within six months the dismissal then the renewed action footing, shall limitation, stand original the same as to action.