Transcripts of meetings, 1977-1981, v. 6. Article VI

STATE OF GEORGIA SELECT COMMITTEE ON CONSTITUTIONAL REVISION
Transcripts of Meetings 1977-1981

~MITTEE MEMBERS:
)RGE BUSBEE OVERNOR HAIRMAN
L MILLER EUTENANT GOVERNOR
)MAs B. MURPHY PEAKER. HOUSE OF REPRESENTATIVES
!ERT H. JORDAN HIEF JUSTICE. SUPREME COURT
ELLEY QUILLIAN HIEF JUDGE. COURT OF APPEALS
HAEL J. BOWERS TTORNEY GENERAL
~CUS B. CALHOUN ENIOR JUDGE. SUPERIOR COURTS

SELECT COMMITTEE ON
CONSTITUTIONAL REVISION
ROOM 23H 47 TRINITY AVENUE ATLANTA. GEORGIA 30334
404/656-7158

COMMITTEES MEMBERS:
AL HOLLOWAY SENATE PRESIDENT PRO TEMPORE
JACK CONNELL SPEAKER PRO TEMPORE
ROY E. BARNES CHAIRMAN. SENATE JUDICIARY COMMITTEE
WAYNE SNOW, JR. CHAIRMAN. HOUSE JUDICIARY COMMITTEE
FRANK H. EDWARDS SPECIAL COUNSEL
J. ROBIN HARRIS EXECUTIVE DIRECTOR
MELVIN B. HILL.. JR. ASSISTANT EXECUTIVE DIRECTOR

MEETINGS HELD ON CONSTITUTIONAL REVISION

COMMITTEE TO REVISE ARTICLE VI

COMMITTEE

DATE

# OF PAGES

1977 Effort

Full Committee

July 11, 1977

34

Full Committee

August 5, 1977

174

Full Committee

September 9, 1977

134

Full Committee

September 23, 1977

76

Full Committee

October 7, 1977

149

Public Hearing

October 15, 1977

101

Includes draft of proposed new Judicial

Article considered at Public Hearing held

on October 15, 1977

Full Committee

October 24, 1977

49

1978 Effort

Full Committee

April 28, 1978

34

Full Committee

May 26, 1978

180

Full Committee

June 16, 1978

142

Full Committee

June 30, 1978

126

Full Committee

September 1, 1978

77

Full Committee

October 6, 1978

100

Public Hearing

November 2, 1978

80

Includes alternative drafts of proposed

new Judicial Article considered at Public

Hearings held on November 2, 1978 through

December 1, 1978

Public Hearing

November 9, 1978

77

Public Hearing

November 10, 1978

79

Public Hearing

November 17, 1978

88

Public Hearing

November 18, 1978

83

Public Hearing

November 30, 1978

51

Public Hearing

December 1, 1978

65

Full Committee

December 8, 1978

54

:OMMITTEE MEMBERS:
;EORGE BUSBEE GOVERNOR CHAIRMAN
ELL MILLER LIEUTENANT GOVERNOR
'HOMAS B. MURPHY SPEAKER. HOUSE OF REPRESENTATIVES
rOBERT H. JORDAN CHIEF JUSTICE. SUPREME COURT
. KELLEY QUILLIAN CHIEF JUDGE. COURT OF APPEALS
~ICHAEL J. BOWERS ATTORNEY GENERAL
~ARCUS B. CALHOUN SENIOR JUDGE. SUPERIOR COURTS

SELECT COMMITTEE ON
CONSTITUTIONAL REVISION
ROOM 23H 47 TRINITY AVENUE ATLANTA. GEORGIA 30334
404/656-715B

COMMITTEES MEMBERS:
AL HOLLOWAY SENATE PRESIDENT PRO TEMPORE
JACK CONNELL SPEAKER PRO TEMPORE
ROY E. BARNES CHAIRMAN. SENATE JUDICIARY COMMITTEE
WAYNE SNOW. JR. CHAIRMAN. HOUSE JUDICIARY COMMITTEE
FRANK H. EDWARDS SPECIAL COUNSEL
J. ROBIN HARRIS EXECUTIVE DIRECTOR
MELVIN B. HILL.. JR. ASSISTANT EXECUTIVE DIRECTOR

COMMITTEE

DATE

# OF PAGES

1980 Effort

Full Committee

June 27, 1980

102

Includes draft of proposed new Judicial

Article considered at meeting of Full

Committee held on June 27, 1980

Full Committee

August 8, 1980

226

Includes draft of proposed new Judicial

Article considered at meeting of Full

Committee held on August 8, 1980

Full Committee

August 22, 1980

123

Includes draft of proposed new Judicial

Article considered at meeting of Full

Committee held on August 22, 1980

Judicial Article

Conference

September 12, 1980

134

Includes draft of proposed new Judicial

Article considered at Judicial Article

Conference and includes other materials

distributed at Conference

Full Committee

October 3, 1980

151

Includes draft of proposed new Judicial

Article considered at meeting of Full Committee

held on October 3, 1980. Also includes:

-draft of proposed new Judicial Article as approved

at October 3 meeting;

-a summary of judicial administrative district

forums held at Judicial Article Conference;

-recommendations regarding proposed new Judicial

Article prepared by the American Bar Association

Committee on the Implementation of Standards of

Judicial Administration; and

-a copy of the final draft of the proposed new

Judicial Article and related materials.

STATE OF GEORGIA f,ETJECT Cm'L\UTTEE ON CONSTITUTIONAL ImVISION
SUnCOHHITTEE ON THE JUDICIARY Hearing - Room 133, State Capitol
Atlanta, Georgia ,iu]y Jl, 1977 10:00 olcl.0Ck, a.n. Presj ding Officer: '\lAYNE SNOH, ,JR.
RHANDENBlJRG & HASTY
SClENTlI'IC REPORTING 3715 COLONIAL TRAIL, DOUGLASYILLI::, CEORGIA 30135
942-0482 DEPOSITIONS - ARBITRATIONS - CONYI:NTIONS - CONFERENCES

PRO C E E DIN G S

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2 HR. SNOhT:

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There are certainly a majority of the memlJers of the

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Carom! ttee preseni.:. :r \vould like to start Of; t~he lefthand

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side and have every member of this Committee to introduce

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themselves to begin with.

7 MR. H. HARRIS:

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I'm Hansel Harris. I'm here for the Younger Lawyers

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Section of the State Bar.

10 r-m. EEAIRD:

,-,

t I 1,-: ..'0"...,

I'm ~alph Beaird, Dean of the University of Georgia

a:
."..........

MR.

S.-.:hool DROLET:

of

Law.

~

>-

Joseph Drol.et, Assistant District Attorney here in

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I) .~

Atlanta, prepresenting Lewis Slaton.

!',.

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16 ~ JllR. ESTES:

Ben Estes from Atlanta, representing the Chief Jus-

tice, \"ho j s on the hench this Jrinrning.

i
19 IIi HR. SUTBES:

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Dab Stubbs, from the State Law Department, represent-

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~)e Attorney General.

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PATTERS()N~
Ray Patterson, Dean 0f '2TT1nry Law SC~~l()(l].

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24 Ii HR. R. Hl"\RRIS:

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Robin Harris, l)usinessman from Decatur.

PAGE 3
-- ---------. - - 1
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I'm Wayne SIIOW and I have been selected h'l the select\,

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Conwlittee on C,'n~ti.tuLionaJ 'Revi".ion to chairm t-1,is 1'e--

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V1..SJ.J)i"l OJr.. the ~uaicial ~rtlle.

5 JUDGE CALHOUN:

6

1 ' m Mcucus Calhou'1. I'm the Chief ;Judge of the

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Superior Court uf t~e Southern sector of Georgia and I'm

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a memher: of the Select Cornmi tb:~e.

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f.~R. HODGKINS:

10

HaTty Hodgkins, with the Constitutional Rpvision Com-

mission.

eTUDGE BELT,:
I'm ,John Sammons Bell, Chief .Judge of the rourt of

Appeals. The Court of Appeals is vitally interested in

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the Judicial Article, of course. We have all of our judges involved in it. With me today are Judge elulian lVebh and Judge George T. Smi ill. For the benefi t of some of you, it was agreed to an earlier meeting that we could --members of t.he Select Cammi tt.eF.: would, of necessi t.y from time to time, have to have designated representatives. Judge Smith and Judge Webb will serve in that category for l:he Court I) f ,:'\ppeal s fr:-om tirneLotJme.
l'~O'RAN :

Charlotte Moran and I'm representing the Georgia

L~a'Jue of "i'iomen Votecs.

PAGE 4 HR. 3EXLEY:
lIm Harry Bexley, representing the ~FL-CIO.

4

And I'w ~ucy Williams, President of the Grand

Jun~rs Association.

hH'R. OVERBY:

I' ,11 Howa.:cd Overby. I'm Chainnan of t.he Senate cTudl-

I.)

r'~R SNOW:

1U

All eight. Now, several of you are designees and we

will point that out from time to t.ime. You lia\le been

des~.'Jnated by the person w1:v.> \-las originally o.ppointed.

C.hal"lcttp., yOl.l are a designee of the Pres ident of the

TJeague ,") Women Voters and you will be a permanent n,{;;;mbe.r

\) .~

<.,f thE" Comwittee. And let's see, ovid Davis hasn't

ill "
.,
[7 ~,
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arrived l has he? From the Chamber of Commerce, nkay FoJks, constitutional revision is something that for the
fi (teen years that T have been in the General Assembly of i

'I

Geor" la, has periodically leaked i tsel f into oor sChedUles!.

'.
Commencing in 1964, when Robin here was Chairman of the

Judici~ry Committee and in special session under the

Sandel's Adlninistration, INe tried for a period of scrae two

and a half months, I think it \',Tas, wi.th an expendi.ture of

some million and a half dollars in special session 1 to r~

25

vise the en tire COfistitutil)n of the Sta te. Well, most of

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PAGE 5
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you are familiar with what occurred then and the Federal

courts after our efforts decided that we were a malappor-

tioned General Assembly and that therefore anything that

we ~id would not be constitutional. We went ahead and

passed it and after that, of course, the Supreme Court

ruled that it was all right to put it on the ballot. But

at. that time, it was already too late to do it. So that

was an effort that was in vain.

Then Robin and the Judiciary Committee in 1969, I think it

was, we closed ourselves off in one of the Committee rooms
I
in the General Assembly. And during the special session, 1

the press immediately decided that that was the wrong way
I to approach the revision of the Constitution. We thought I we made a whole lot l)f progress because we didn I t have anyl

interruptions from anybody. But, nonetheless, we did passl

that in the House, but it did come under a great deal of

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criticism because of--this was the entire Constitution. I

som~ This past year, after

three years working on an

I

Article by Article revision of the Constitution, we were I I
successful in passing the 1977 ve:rsion of the constitutionl
I of the State of Georgia. This, of course, vIas wi thollt any

substantive changes and the Articles were arranged in the

order in whiC:b we felt they should come in the Constitu-

tion and different sections were revised and placed in

the sections that were approprjate or pertinent.
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So that bdngs us then to the task of what 've told the

people that we were going to do last year. And that \vas

to take each Article of the Constitution separately and

to seek to revise it in some substantive way in a manner

in which we, ~10pefully, ,.,ould be able to pre.sent some-

thin'] to the people in November that would be an improve-

ment ove:( TA1hat we presently have in the Cansti tution.

'Probably the primary difficulty with Georgia is that the

language is old and is not readily understandable bl C

lot of us. It's a very vArbose Constitut:ion. It is the

longest:

COilS t; tution

in

the

United

States,

havi ng

jn

.....
) l.

some four million words. The second Constitution to us

that rega:t:l) is the State of Alabama IS.

This Committee will be charged with the responsibil-

5.ty of detern,:ining ini.tially how ":e Vl:tnt to apP}'o,lch t'Y'

make, as such, or if we would like to retain any of the

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portions of the Constitution that are statutory law--if

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we wou] d lik.e to retain that and recommend statutes be

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re-enacted in the General Assembly, but to keep the Consti

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tution itself ~s simple as possible.

. That

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be

the

fl\."ttel.- that witl address us.

M I~II

Certainly, the people in my area and, I think, state-I

25

wide, have become very much concerned over the years by !

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PAGE 7

the number of canst; tutional aNenOll)ents that are const;;nt~

1y f;'1cing us on each bn11ots--amendmen ts that pp.l)ple,

3

simply and solely, do not underst.nnd. It is an i'\9<Jravc3_-

4

tion to the voters \"ho vote on things that. t:hey are not

5

overly familiar with. It's an aggravation to those of us

6

in the General Assembly, where we go to the polls and

7

vote on a matter that--the way it sometimes appears on

the ballot, it takes us some time to fully and competely

9!

comprehend what it was that we were debating at the ttme

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that this constitutional amendment passed. And this is

a truism.

I think we have a tremendous chal1enge here. As you

know, \Ale are one of three com.mittees that tllill be working

this year on constitutionaJ revision. Our section on the

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Elective Franchises is also being worked on by a separate committee. And the Loan and Scholarchip Sections of tbe Constitution are also beJng studied and are expected to be

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revised for submission to the people in November of next

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year.

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We will seek to have meeting that will be as conveni-I

21

ent as possible with members of this Committee. I am

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going to request, Marty, if you wil1--Marty Hodgkins is

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I the Executive Secretary to the Select Corrunittee and will i
be working with us along with the other two COTILrnittees

25

I~I-------

1
that will be working this year a.nd he w___i__l__l____b__e_____a____p___e__r__m____a__n__e___n__t.__ JI

PAGE 8

fixture fo sG\Teral years as each of the Articles come up

2

for review and for study and for recommendat.tons . So,

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Marty, if you will--if you will go through and explain thel

4 I;I:

pamphlet or the booklet that you have prepclred here for ii'

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this committee. I.et me suggest to you also, those of you

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who are member-R of the Committee, we do provide for compenr

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sation of you through le~islative funds and you will re- !

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ceive per diem as well as your mileage. Now, those of you

q

who are State employees, it's my understanding there that

10

you will receive mileage if you come to the Committee

meetings. But of course if you're already on the State

payroll, you will not receive any per diem. Is that cor-

rect, Marty?

HODGKINS:

1'i ~

That's right.

16 ~ MR. SNOW:

c

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17

<
a:

We will probably need to send around, too, a legal

jii

pad to get everybody's name who is on the Committe and

whom you are the designee of. I think we know, but you

might, if you are en employee of the State of Georgia,

designate and that would help us a little bit in our book-

keeping.

All right. Marty?

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24 MR. HODGKINS:

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~ _~_~ ~_H ~iibl,,~of~_1 L 25 __

you' 11 open your pamphlet. you' 11 see a

PAGE 9

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Contents there with seven or eight different tabs. At I

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Wayne's request, what we've done i~ brought--put together

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the four--three proposed judi clal Articles that '.alere pro-

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posed at different times and also the present Article as

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it reads after the editorial revision was approved last

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year. That's just for your inforrnation, perhaps to use

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for comparison or whatever as the Committee moves along.

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Tab F are some proposed Rules of Procedure for the Com-

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mittee.

\0 MR. SNmv:

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14 >...- MR.
VI
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15 l? (,

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17 "'"

We probably ought to get into that then. Go ahead and tell us the whole thing and then we'll star.t on the Rules.
HODGKINS:
These are just some real gA~eral rules that T draften based on some rules that have been used in othe t' states when they've been revising the Constitution. And finally,

18

Tah G is just a copy of the Resolution which created the

,

19

Select Committee on Constituion Revision, whi.ch Wayne just

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mentioned. Actually it's charged wit.h approving the rec-

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olTl'uendations that the different commi t.tees com(~ up with.

II

22 IMR. SNOW:

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23 ,I

I Thank you, Marty. Referring to Tab F, the suggested

24 1

Rules of Procedure, we have twenty Plerr,bers. Do :r: have a

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suggestion as to what we should have as a quorum to act? I

.__.__._. . .. . ..__._ J

MR. OVERBY:

PAGE 10
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Hr. Chairman, I move thF\t a quorum he set at twelve.

3 ~~R <:;NOW:

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Thp. mc,tion has been made that the qou:n.1Ill be set at

5

twelve. Is there a second to that?

6 r-m. REXLEV_

7

~; cond.

MoU_on jpade and seconded. Any discussion? If not,

10

those in falTo!:" say Aye. [A chorus of ayes.] Those

opposecl, n\). rNo response. J

cTlJDGE BELL:

It's understood~-Hr.. Chairman, it's understood that

includes mpn~ers or designees.

15 ~'> (VIR. SNO~l: <:> L>;.

. 16

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,

Yes, l.lh-huh [Brief pause.] Is there any objection

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to the chai.rman presiding at all meetings? [No response.]

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Or desi'lnatinlJ an Acting Ch"irman? [No reponse.] I SI.lPpose that would be'to designate someone to be able to be here in the event of my absence, so ,that: would be left open until cmy particular time. I'm sure everybody here is qui Le f,tmj liar with Robert:' s Rules of Order and if there I S n,l objectic'n, we will adopt and resal ve dny questions in that manner.
. _... J Now, number four is a majority vote of a quorum un- I

PAGE 11

1e8[; oLherwise specified shall prevail on any matter

2

brought before the Committee.

3 i JUDGE CAT.rWTm:

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I believe that we--

5 II MR. SNOW:

6 II

We superseded that in the Select Committee.

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JUDGE CALHOUN:

:I

Right. I believe that on the final adoption of the

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Article, it should be the majority of the who~e Committee.

10 l-'lR. SNOW:

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So this will only be on general matters that are

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brought u.p at each meeting. But on th~ final adoption on any substantive changes of any sort, that we would have a

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majori,ty ,of the entire Committee that would vote on it .

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Okay. Number five. "Unless specifcally permitted by the

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Chairman or by aflljority of the Committee, only members of

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the staff shall participate in any official discussion

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during meetings of the Committee. When appropriately recognized, any person testifying Cit a meeting 0f the Committee shall speak for a period of t.ime not to be in excess of five minutes. This period of time may be ~xtended by the Chairman or. by majority vote of the Conuni t.tee. " Is that agreeable with the Committee?

24 JUDGE BELL:

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25

Mr.

Chairman,

I

would

like

to

move

to

amend

the

I
firstJ

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PAGE 12
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sentence in five, after the word ConlIllittee to insert,

"or their official designee." That's in accord with the--

3 MR. SNOW:

That's correct. ~hat's in accord with the rules of

the Select Committee. Let me clarify that to this extent,

though. There are some who are specifically here ap-

pointed. They would not have designees as such. Such as

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--now, Chaclotte, you are a designee. \"1hat I' III saying is

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that you are a member of the Committee, but there would

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be no one other than you who would be able to vote on

matters coming before the whole commi.ttee. In other

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words, what we're saying there is you could not, yOUrSelf,1

appoint a designee. The same is true with you, Robin, anel

the same ;5 true with you, Boh. Now, you are a designee,]

1) ..

Joe. You are the one to represent the Prosecuting Attor- I

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neys.

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Now, the Deans of the Law Schools were either the

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Dean or their designee. So there would be one designee that you could appoint who would have thiR authority to vote in your stead.
Okay. Six. "Heetings of the Committee shall be at such times as agreed by the COIIDnittee or at the call of

23

the Chairman. Seven days' notice shall be given prior to

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any meeting of the Committee or subcomittee." Is that

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agreeable? [NO response.]

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PAGE 13
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"All meetings of the Co-rnittee (or any subcomrni ttee I

that may be created) shall be open to the public. Ade-

quate advance notice of all Conunittee rneeti.ngs shall be I
,"
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4

'J iven to the public." And, Marty; you will see to it thatl

5

there is public notice given on these matters?

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I 6 MR. HODGKINS:

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[Indicating affirmative response.)

8 !I HR. SNOW:
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Any objection?

[No response.)

Nu.rnber eight.

to

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,! Commi t tee members TUay, in case 0 f absence, des i gna te an altarnate to attend any meeting of the Cor~itte or subcomridttee that may be created. Such alternates m"ly vote on any matter brought before the Committee or subcommittee' --well, that's a 1ittle--that is a little contrary to \'1hat I said a minute ago. That i:-; not on matters of substantive nature. I think that just on matters that may come }H-:>[ore us at certain times, if yOll have a destgnee,--

If!

well, this does not apply again, to those who are indiv-

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idually appointed to the Commi ttee. T t ."ould only he the de1gT1t:es of those who are appointed to the Comroi ttee.

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"No Committee member shall vote by pro~:y.l: Any ques-

tions about ~ha~~ flO respGrS(~. ~

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T"':) '')("'' :~::- (\, -; cr-- ;.~::' t i f: uti n l~ ~~ll l-~ r t.L c J c~ t()

24

;)(' p'~c:~;cnb~a t,-, UV~ Select Co"n:':"_: t'c:.-C en CCf.,:,ti tut..1.oni11

Revision shall require a majority voteo_~~_~~_~_~i~eme::J

PAGE 14

bel'ship of the Committee.;; ''Ie! ve covered Lhat" Is there

any objection to that? [No response.]

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And the minutes of each Committee meeting shall be

recorded just as we are having a transcript of this me0t-

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int today.

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And then, twelve, "Nirlutes of each C()PU1littee meeting

7

will be distributed to each member (If the Cornmi ttee.

8

Minutes of each Co~nittee meeting shall be made avajlahle

9

to the public."

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11 ~ JUDGE CALHou~;r:
..o....

(lg}2;

Don't you think \"e I.Ju'jht to go back bj <~ight' and clarify it and really get-it where it's understandable

.... _.

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and not leave it in this condition.

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15 ~ JUDGE BELL:

..='""-.
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Why don't we just eliminate it?

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17 :;'i MR. SNO~v:

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Let's do eliminate eight.

II
19 MR. OVERBY:

20 II

Doesn't five really cover eight, Mr. Chairman?

IiII
21 HR. SNOW:

22

Yes, T think so.

23 II HR. OVERB...:

24 I 1\

I move that we strike eight in :i. ts entJ rety.

25 ~. JU~~_~_~~~~UN :

__._____ _

_

I second it.

PAGE 15

----I
I

2 MR. SNO\'\!;

3
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18

The motion's been Jllade and seconded t.hat eight be
stt:-uck in its entirety. Those in favor, say Aye. r.A

chorus of ayes.] Those opposed, no. [No response.] It

is struck.

The reason for pIecing in your folder the 1976 Bnd

1969 and 1964 proposed Constitutions, of course, is to

give us some glli.d~~lines. From the very outset, I have

i

I
been especially interested in the law student participa- I

tian in all of the Articles in fact, as well as the jUdi-!

cial Articles. And to be able to call upon these resourcer

which are really rather inexpensive to us as far as exper-I

tise is concerned. And to be able to utilize the--not

only the professors in the law school but also students

a", . that are interested in constitutional 1

And would hope

that they, too, could come through with some recommenda-

tion as to how this Article should be properly revised.

III

;Jow, the State Bar, through Judge Smith--and many of

20

us are on that Committee--have made recommendations and

21

they are making their recommendations on July 15th of this

22

--well, this month. And those Q n~c.)mmf.ndations thClt we

:: I
l25

will also have to study. Those recommendations are (lot yet public but they will be probably after the 15th. I've
ji~~_: _}~~~n_~e~inded that I don't think w_e__t_o_o__k__a__v_o__te___t_o____JI

PAGE 16

"',
,

11

I'Ii

adopt all the rules. So those of you who are in favor of

II

:2 II

the ru18s, say Aye. [A chorus of ayes.) Those opposed,

Ii

3 :[

no. [No response. J Okay.

I" i

4 II II

I I would like to at this time--Robin, you have been I

5 1i

through several of thesE constitutional matters. 'ilouid i

II

I

6 !I

you like to make a comment on your experiences relative

I I

"7 li

i
to cons ti tu tionrtl revision which have been rather frustra-\

8

,ting from t:Lme to tim?

I

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HR..

R.

HARRIS:

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10

No, thank you.

I

11 ",z,' MR. sumV':

i

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12 ..''".."""..' "z,
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If not, I think prohably, Ben, representing the Chief!
I
,Justice, would you like to make some comnlents?

~l- ~

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. l 14

>- MR..
~

ESTES:

:x:

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Well, I agree with Robin that it's been very frustra-j

",
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16 '"

ting through the years to get anything done. I think that

(;

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17 ';"c

everyone will agree, part3 cularly with Judicial Articles,

18 I'

that they are in bad need of revision.

I:
IiI
19 MR. R. HARRIS:

Ii

20 Ii

Let me revise--Iet me take you up on--there's one

II

I,

21

II I'

thing that J think that all of us, either individually or

I

Ii

\.i 22 I

collectively, are going to need to deterlnine at the outset

Ii

23 I'i'

And that is whether we want to try to produce a judicial

24

I i

Article that, in and of itself, is something in which we

:1
i'
t25

[1-------------------------------------

I

keep an eye on what's po1iti.ca1ly feasible.

PAGE 17
- - - - - - - 1,
And for my-

2

self, the--my participation will be on the basis of, hope-

3

:i
i:

fully producing an Article in which I can take some jus-

I!

4

tifiable pride and let Mr. Snow worry about his political

5

practicali.ties as it might move through the General Assem-

I

6

b1y.

I, 7

MR. SNOW~

8I

Well, that's a responsibility that you had at one

I

9I

time. That's why I said that this had been rather frus-

10

trating to you on more than one occasion. Back in 1964, I

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of course, there was the Governor's Commission on Consti- Itutional Revision and it made recommendations. And I think by the time the Judiciary Committee finished with those recommendations as well as when it. got to the floor of the House and t,he Senate and they fInished wi.th what the .Tt1diciary Committee had done, then it was hardly recognizable.

Ii 18 MR. R. HARRIS,

I

19 I

I would like to suggest that the membership be fur- 11

20

nished with copies of the recrrrunendations of the Commissio

21

in 1964 and the Commission in 1969. B~cause that which

22

ultimately traveled through both bodies was different to I

23

a degree from the recommendations of those two CommiBsions

24

And r think this is additional information that we might--

25 MR. SNOW:

PAGE 18
--------l
~ould you take care of that, please, Marty?

'2 r1R. !IODGKlt-JS:

3

[Indicating affirmative response,]

4r1R. SNOW~

l\11 rjght. I would--Judge Bell?

JUDGE BET..r.:

7

No, the only general observation I would have, I

II

8 II:,

don't thInk there I s a single person here that doesn't

r. II
I: ':I Ii

reali ze the ser1.ousness of h aVJ..ng a proper, good , work -

10

Able Judicial Article. There's probably no branch of

government that touches the lives of all the people as

much as the judiciary does--a most important function. We

should not be in a hurry to do it--to meet a time sche-

dule. i We should labor diligently but we should not feel

compelled to rush something through that may not be in

16 n~ C <t
17 ~

the best interests of the people of the State. I'd just like to suggest caution in our delibera!:i.ons as to time

18 Ii

elements or speed.

II

19 !I r.1R. SNOW:

11

20 II

Thank you, Judge.

Dean Patterson, would you have any

21 II :l

comments that you would like to make?

22 IIii MR. PATTERSON:

23 II i

Well, thank you, Mr. Chairman. I took note of your

I

i

24 i

comments earlier about wanting the input from the law stu-

l_~_~ ~~~ts 25 __

and the law faculties. And I assure you that we

PAGE 19
--------l
will cooperate in every way we can because we do think

2

that this is an extremely important endeavor and I hope

:3

that we will be of some help to you.

4 MR. SNOv.;:
If you would, too, sir, like to have additional copies

6

of some of these proposals that we've had before to carry

7 II

back with you today, Marty will arrange to have those.

IIIi 8 HR. PATTERSON:

9 II

Good.

10 MR. SNOW:

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11 ~

All right. Dean Beaird?

o

.l>....

12 : MR. BEAIRD:

(,\~~~J .~ ~~

First. Mr. Chai rman. I want to think you fo r 9 i v lng

"--

14 r.
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15 .:>
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16 .':".l. Cl Z
17 <l

me an opportunity to serve on this important committee. Y'le, at. the University iof Georgia Law School, have been vitally interested in constitutional revision for some time and we have a number of people on t.he faculty that

18

have made comments, oral and \'Ilritten, about the need for

19

revision in certain of these areas. And I plan to get

20

their input and bring it to this Committee for considera-

21

tion. I think it's important that we study all the prior

2',)-

proposals and I particularly appreciate receiving the Com-\

I

23

mission recommendations of the 1960's. I think that we

24

can only come up with a revision that we can all be proud

25

of if we understand what all the options and alternatives

- - - _..--_._._----- .---

PAGE 20

r--

------------------j

are. Fiut. I'm looking fon-lard to servinglnd I can assure

you that I'll see to it that all the people in Athens have

3

an input via my merllbership on the Committee.

4 , MR. SNOW:

5I

We wo~Ia appreciate that. We've had some prob12ms

6 II i

,,,ith some of the folks in Athens.

7

i) 1:

HR.

BEAIRD:

i:

8 !I

Yes, that's what I was referring to.

!'

1;

9 Ii

can't filter some of that for you.

I'll Bee if I

10 rm. SNOW:
z<.:.>
But of course what we were doing is precisely what
1
we are now--we're preporing to do now, is to make substan-'

tive revisions rather than--and we were not in an effort

to make suhstantive revisions hefore.

16 .~..
zo 17 ~

I think it's of ut.most importance--and that's the reason why there is a variety--I mean that complimentarily--of people on this Committee. We've tried to involve

18 if !: I:
19 q
iii
20
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21 ! Ii
22 IilI
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24 Ii
25 IL

the different segments as much as possible of--representa-

tive of the pecp1e of this State. And many of you, of

I

I

I

course, dre not lawyers. So tho t gives us some input from:

your at"eas and some understanding, hopefully, in your

areas in that you will be able to observe the manner in

which--and to participate in the manner in which this
II
',rticle ls hping revised so that there won't be any--we 11,

~_~~_~~_~~y, there will always be objectlons. Anytime

I
J

PAGE 21

you revise anything, you're going to have plenty of folks

2

that are going to be objectin~. But at least we will be

3

in a position to get as broad a coverage as possibJp from

4

different areas of our State so that no one can come in

5

and say, "Well, we di.dn' t have an oppox:tuni ty to partici-

pate. Now, hopefully, as we come into different sections

of the Ar.ticle, \,Are will from titae to time set public hear-

Ings at which time we will hear from anyone that wants to

be heard. We'll try to get out good publicity on those

10

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sections. This, of course, is where the Committee will just hear from others. We probably will arranye that
at any ():!C~ pa ct.i cular time. vh~ may qet in this posture toward the--during the Fall toward the deadline that the Selr::lct Committee has set, which is October 1st., wher<~ tVf> might deem it necessary to have Friday and Saturday Jueet-

18

ings which probably would be more convenient to Bome of

19

yOll, especially those of you who are on the bench, trying

20

not tn disrupt your schedules any more than absolutely

21

necessary

22

.Joe, do you have anything r1'OI [[ the Prosecuting I,ttor-'

n

neys that you woul~ like to say?

24 MR. DROLET:

2S

Not particularly from the Prosecutinc; ~ ttorneys, but

PAGE 22

one thing I've been somewhat curious

sort of scope in specific areas that

as possible, you know, to really clarify what the big

problem areas are. I'd sort of like to have an idea of

that in going through some of these other documents. Are

there three or four major areas that have been of particu-

7

.; "

lar concern over the years or are a particular problem

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now that we want to be aware of in revision? If there IS

9 Ii

any way we can get that out--

10 MR. SNOW:

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11 .oe.t..a-..:
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I thought that as soon as the committee from the State Bar, Judge Smith's Committee--as soon as their recommendations are made public or are approved, that a copy

"--

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of those will be sent to each member of this Committee. So that that would give us, then, those various revisions I which are here listed plus the Commissions' recommendations that we already voted to send out also--the 1964

18
I:

Commission and the 1969 Commission. And those reommenda-

19 II

tions as well as then having the recommendations from the

20 Ii

law schools on particular sections--I think it would be

21 III

very difficult to go back and say we have to have every--

II 22 :J

the entire Article at such and such a time, if there are

23 1\.
24 II
25 Ii lL

specific sections that some could work on, observing what had been done in the past and how that could be improved upon. And that, I think, is what we have in mind.
.. __

PAGE 23

2 MR. H. HARRIS:

3

I don't have anything specific to say other than I'm

4

just very delighted to be serving on the Committee and I

5

look forward to working with everybody. I think it's a

6

very great task to be taken on, but I think it's a very

7

worthy one because personally I was somewhat concerned

8

about the passage of the Constitution last year and I was

9

afraid that the people would think they had adopted a new

10

Constitution and let that one stay in for 25 more years

..,

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11 l-
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a..

I'm glad that a followup effort is being made immediately

\I,'-~---~-~r..- i., c'~

to make substantive changes. Thank you.
12 ~ MR. SNON:

14 >.l.-.,

What about the Attorney General's Office, Bob?

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IS ~ MR. STUBBS:

"IX

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16 ~

Well, the one comment I would have to make, Wayne.

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17 f:i

There have been two other groups that have done some work

in respect to judicial organization and reorganization,

18 Ii

19

one of them chaired by Robin which was 1976, wasn't it,

I

20 I

Robin?

21

Yes.

23 MR. STUBBS:

24

Struc~ The Governor's Commission on Reorganization and

might be of some assistance.j

. -------_.,.

-----,----

PAGE 24

Another was an ad hoc committee which functioned under

2

the direction of Judge Bell, now the Attorney General of

3

the United States, that while it was primarily directed

I

4 IIII

toward legislative changes, did have some comments that

",i
5

might be of some assistance to this group. The Attorney

General, as you know, has been muchly involved in this

7 !j

since we have participated in the other groups as well as

I

H Ii

with Judge Smith's Committee.

MR. SNOW:

III

Okay. How about the AFL-CIO?

BEXLEY:

Well, I appreciate the opportunity of being on this

Committee and I look forward with keen interest in revis-

ing those areas that I've been particularly interested in

)) .,

when Robin there was heading up the Committee. We were

'J

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16 '7"

interested in it and then even the committee before that,

/.,

:;:

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17 "(.;

several years ago when we had a lot of work on it, Judge,

Ix

when you were involved. Certainly we have a keen interest

)9

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in revising the Constitution--the judicial part of it.

I

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20

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MR.

SNOW:

,i

II

21
I!

Charlotte'~ the League of Women Voters?

22 I!i' MS. MORAN:
!i'I

:'1 II Ii

Of course we're delighted to have an opportunity to

II

24 II

get our teeth into the Judicial Article. And of course as

P

II 25 Ii ___

one of the very few non-lawyers here with a group that, I

_. ,, ,

. .__.J

PAGE 25

think, represents the great mass of voters out there.

2

We're primarily concerned with something in the Constitu-

3

tion that people can basically understand--not all of the

little details, but we would hope that we emerge with a

document that the voter and the citizen who is apt to en-

counter the courts will have some understanding of. We

want to keep things simple, direct. We hope we can work

that out.

MR. SNOW:

10

We hear an awful lot of discussion from time to time

about grand juries and some of them are not effective.

Some of them are ineffective in many areas, but one that
I
is, in my opinion, very effective and has had a great deal!

of input into legislation is the Fulton County Grand Jury

15 .-

Association. They have always expressed a tremendous in- i

:"",

16 'z"

terest in the laws that we have coming before us in the

w

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17

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General Assembly and, for that reason, I thought it would

lk !:

be appropriate to have that group represented on this

Ii
Committee. Ms. Williams, do you have any comment?

Well, I feel highly complimented that you included us. We have some 200 members who are vitally interested in this. And I can assure you I'm going to learn a lot

PAGE 26

much being given the opportunity to serve.

2 t-1R. SNOW:

!
I didn't--I probably just saved the best for last and!

i

i

4!
I

that's the Superior Court Judges--Marcus?

I

5 i JUDGE CALHOUN:

6

I wondered whether you were slighting the Superior

7i

Court. I agree with what Bob Stubbs said. Robin's a

R ,i

little modest. The committee that he chaired did a lot

9

I"i
II

of work and accomplished some things. We did get some

10

things passed through the legislature like the judicial-

administrative distrcts which I think is a great step for-

ward in the State, although the administrative judges

don't really have much authority. I think that those

recommendations ought to be made available. Somewhere

15 ,!J

down the line after you have all these matters in, it

.'"O".-J.

I

16 .z..

might be well to divide this subcommittee like Robin diVidf

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ex
'"

ed the Committee on Court Organization and Structure, that

IR !:

is, into subcommittees on Appellate Courts, Trial Courts

I: 19 Ii

and related matters or something of that nature. Now,

i"l

20

I, 'I

:1

some of the specific problems which we encounter are in

I'

21 ,I

the Superior Courts. Of course I'm from out in the coun~

I,I'

22 Ii
I!

try. Really, I'm from the metropolitian area of Thomas-

Ii

23 II

ville, Valdosta and Moultrie which is a pretty good sized

24 II

I area itself. In my circuit we do have smaller counties.

'I
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I
We have the smallest county in the State, ~c~~_~~~~_~~~_.~~J

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211
22 23 24 25

-, PAGE 27
._--.._._--------_._._-_.._--
by way of population--less than 2000 people. And of course we hold two terms of court there every year. And a lot of things we have involve REA. We can't hold court in Echols County if REA is involved because everybody in Echols County who has electricity is on REA. So these we have to move to another county. Many Superior Court Judges think we ought to have regional trial centers in this State. In an area like this with the modern roads and transportation, it's very easy for everyone in that area to get to Valdosta or Thomasville or someplace like that. With regional trial centers, we could operate two or three courts at the same time with the same jury makeup as we have in Fulton County. The Constitution says that every criminal case shall be tried in the county in which the crime was committed. So you're blocked right there. This is one thing which would be changed. We coul provide for regional trial centers. Another things I have for a long time advocated that we ought to go to six-member juries in this State. It's done in Florida; it's done I in a lot of other states. It cuts the jury cost in half. The Constitution says that the General Assemby may reduce the number of trial jurors to not less than five in all courts except the superior court. So you're blocked there You can't reduce the number of trial jurors. These are
. ~~~~_~~_ the practical problems which we~~-==.~ver~~~y ~~

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PAGE 28

the superior courts which we could change and which would

result in, I think, a substantial savings in time and

money without depriving the people of any right that they

have and which they're entitled to. I agree with Robin
for~ also. I think we ought to try to--we ought to try to
I
mulate and propose a Constitution which ~s a r~al Consti-

,;:,e can be proud ~)f and l(~t h'ayne 'lnd I

~
<1 ...mut

. gett~ng . l t t. nrou.gr.

I
I'

the General Assembly. I'm sure that Judge Smith's Commit-

tee, I know that Robin's Committee looked at the informa-

tion from other states. Perhaps we should have the staff

bring us some information about the Constitution of the

state that has the shortest Constitution. We've got the

longest; I don't know who's got the shortest. But maybe

we should look at that. It's my idea that the Constitu-

tion should lay down broad guidelines. It should secure

the basic rights to the people and then leave the rest to

the General Assembly. The General Assembly ought not to

be hamstrung to pass the laws that would be beneficial to

the people. So I would hope that we can do away with

three-fourths of the verbage in the first Judicial Arti-

cleo We have a special section on venue in divorce cases~

I don't see why that's necessary. Why not just venue the I

same in all cases? And this is some of the things that I

think we should address ourselves to.

MR. SNOW:

PAGE 29
------- ----1

Thank you, Marcus. Before I really get remiss and

get this thing into trouble at the very outset, I'd better!

4

hear something from the State Senate. Howard?

5 MR. OVERBY:

6

I'm glad you finally recognized the upper house. No,

7

I appreciate the opportunity of serving and I think I can

8

speak for our Committee on Judiciary in the Senate and

9

we are vitally interested in the Constitution and have

10

been. And I certainly vastly appreciate what Robin Harris

did. I think with an all-out effort on our part, I'd like

to share some of the opinions of Judge Calhoun, particu-

larly about the fact of cutting it down. There's a world

of material in our Constitution that would be better

covered by statute and I feel that with this Committee i

"'":)

16

co 7

~

I
working together--I'm proud of the membership of this Com-

0

L

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<
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mittee--and I feel that we can come up with something that

IH Ii

will do the job that we need to do for the citizens of

19 I;

this State.

I!

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MR. W 1'1'

~~:

II

21

Ii
II

I think that we've got to try to keep in mind as we I
I

22 \i

i go through this, throughout, that there are--maybe not in

23 IIIi

the Judicial Article as much as there are in some of the II

24 Ii

other Articles in this Constitution--but there is so much I

2S 11

~~atutory law that is written into the C~_~sti~ut_io~~_~urJ

2 3

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PAGE 30
objective should be to attempt to eliminate the statutory law in the Constitution. And then we could present--at
the same time we present the Judicial Article to the Gen- I
I eral Assembly, those statutes that should be enacted to
take care of those particular areas. Now, I'm talking no, in terms possibly of jurisdictional questions and things that should be left up, possibly, to the General Assembly, as they from time to time might arise. But when we get 1 into areas where it looks as if we've got real conflict, if it looks like we are endangering the Article or possibly its passage, then we should hopefully look at the standpoint of keeping the law the same as it may appear in the Constitution through statute. And then let it be argued back and forth in the regular channels of the Judiciary Committees before the House and before the Senate. But we've got too much verbage in the Constitution. We've got too much verbage in the Judicial Article now. I'm hopeful that one of the primary objectives of this Committee will be to eliminate such things from the Constitution of the State.
Are there any additional comments from anyone before we proceed to try to determine what kind of schedule that we're going to have with reference to our future meetings? Are there any questions, again, from the Deans of the Law School, especially as I hope to have your full participa-

tion in this matter.

PAGE 31
-----1

MR. BEAIRD:

Just delighted to be able to serve.

MR. SNOt'l1:

Now, I think it's going to take all of us some time

possibly to digest some of this material and possibly

through the month of July and it's a vacation month for a

lot of people too. So can we look to the month of August

as to when we will have the first meeting of the Committee

10

to actually go into or start into some of the substantive

sections of this Article? How about the first week of

August? Do any of you have a suggestion as to days that
I
would be--or the day that would be most convenient for yout

Is Monday okay?

t 5 .:> JUDGE CALHOUN:

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It's a very bad day for me.

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day.

I
Friday would be the best

18 I! MR. SNOW:
Ii

19 II

Is Friday a good day for most everyone?

20 Ii

Friday, the 5th of August?

I

21 Ii MR BEXLEY:

22 II

Ten o'clock?

How about

23 11 MRo SNOW:

I

24

I
I

Ten o'clock. And most of our meetings will be held

J I 25 ___.__ ~~_ ~h_i~__.~.~om unless we're going to have PUb_l_i_c_heax-.~n~~ :

PAGE 32

when we may need a larger space, either in the House Cham-

ber or in 341 upstairs. Marty, do you have comments that

you--

4 ii MR. HODGKINS:
I
Just if anyone does want to put in an expense voucher,

check with me after the meeting.

I

7 11 MR. SNOW:

8 Ii

I have the list here. Then we can go over that.

9 i:1

Those of you who are non-State, we will get your names and

10

your mileage. We'll need yourcmileage and those of you

z~
who are State and have had mileage today, then of course

we will need that mileage.

Do any of you--Marty, by the way, is available. He's

fulltime with the Select Committee on Constitutional Re-

vision and, Marty, will you give us your telephone number

16 i ~

as well as your address here. You're on the third floor?

"z

17 ~'"

He's presently operating out of the Legislative Services

II-:

Co~~ittee, but shortly there will be quarters that will be

14

set aside for Marty and his staff. Now, when will you be

20 ::

moving into those?

Ii

21 i!I' MR. HODGKINS:

!!

\1

II 22 ,I

This week.

,I

23

Ii
I,

MR.

SNOW:

Ii

24 Ii

This week? All right.

ii

25 Ii MR. HODGKINS:

U -- -- ... . _

Would you give that address?

PAGE 33
'.- --.-,-----, ,----,---'-1
The address is 7 Martin Luther King, Jr. Drive,

2

Room 551. Telephone number is 656-7158.

3 ; MR. SNOW:

i

4

!
I

Any material'~hat we have not mentioned here that

!

5

I
i

might be available--that you think might be available, if

I

6i

you'll call on Marty, he'll try to arrnage to have that

Ii

'") ;;
i""l

material for you.

8 I,!I MS. MORAN:

il

II

9

II
II

Mr. Chairman, what did we anticipate being the sche-

:i

10

dule after meeting on the 5th? One a week? Once every

Czl

11 ~

two weeks? We have two months, I believe.

.oa....

((.~.~ . -I12 : MR. SNOW:

.~'!J/ I

Yes, we are going to--at: that time probably divide

14 ~

things up into--like Marcus suggested--into some subcom-

'<"l
>:

IS ,~,

mittees that will be working. And then we will be meeting,

""

16

ro 7-

..0
7.

at least once every two weeks as a whole Committee.

\

17 ~ MS. MORAN:

18 I:i,

Thank you.

III'I,
1'1 MR. SNOW:

20 III,
Ii

I think that we should meet at least that often. And

21 !

then after the first couple of meetings I think we'll see

22

I
I

I

more the direction in which we're going and what time span

23 III'

is necessary. As I said, we may get to the situation

I

24

Whji
where we're meeting on Friday and Saturday, especially

25

we want to give some notice to the public and have their

_ . _ . _ - - - - - _ . _ - - - - - - - -

in put.

PAGE 34 ----------- - - - - -----------,
i
Certainly if we have some Saturday meetings, it I

2

will be of more opportunity for some members of the public

3

to be able to attend and appear. And they can't then say

,

I

4I

we didn't have meetings at a time that was convenient for

5I

them. They're going to say it anyway.

6I

All right, folks. If there's nothing else, then we

.., II
II

will stand adjourned until the 5th.

8

[Whereupon, the meeting was adjourned at 11:05 o'clock,

9

a.m. ]

10

C E R T I F I CAT E

I hereby certify, as the court reporter, that the

statements that appear in the proceedings were taken steno-

graphically by me, and thereafter reduced to typewriting by

me, and that this transcript is a true and accurate record to

the best of my ability.

18
19 IIIi
20 11
21
22
Ii
23 Ii
24
25 I
U_

.'.- -- --"-------._"'.

------- ----

'INDEX
Committee to Revise Article VI Full Committee Meeting Held on July 11, 1977

(Procedural)

FULL COMMITTEE MEETING, 7-11-77

.--

STATE OF GEORGIA
:LECT COMMITTEE ON CONSTITUTIONAL REVISION lMMITTEE ON THE JUDICIARY

laring -

Room 133, State Capitol Atlanta, Georgia August 5, 1977 10:00 o'clock, a.m.

Presiding Officer: WAYNE SNOW, JR.

PAGE 2

..
2 MR. SNOW:

PRO C E E DIN G S

3
II 4I 5I

I think it woulc1 a~]ain 1,(: appropriate since thisLS just our second meeting if we started on the left and-Dean Patteron, starting with you, sir, if you will intro-

6 II

duce yourself so that we'll refamiliarize ourselves with

7 Ii
II

one a.nother.

II

8 I DEAN PATTERON:

9

I am Ray Patterson, Dean of the Emory Law School.

II ."z..
t..oi..t..

Ray Phillips, sitting in for Cean Beaird. I'm the

12 ~

Associate Dean of the Universit v of Georgia School of Law.

@r~iMR. STUBBS:

14 ..>...-. :J: 15 .:>
":'>"
16 l~D MR.
o
z 17 ~

I'm Bob Stubbs from the State Law Department, Executive Assistant to the Attorney General. DROLE'I' :
J02 Drolet, sitting in for--designee for Lewis

18

Slaton, District Attorney,.

19 MR. HIGHT:

20

Tony Hight, ~epresentingthe Prosecuting Attorneys.

21 DEAN COLE:

22

John Cole, Dean pro tern at Mercer Law School.

23 IMR. H. HARRIS:

24

Hansel Harris.

I'm here for the Younger Lawyers Soc-

25 tion of the State Bar.

r MR. SNOI'l:

PAGE 3
- - - - - - - - - - - , - ---- -------------~----
;

2

All right, Robin?

II 3 MR. R. HARRIS: I

4

Robin Harris. businessman from Decatur.

5 MR. SNOW:

6

Senator?

7

OVERBY:

8

Howard Overby, State Senate, Chairman of the Judi-

9

ciary Committee.

10 M'{. DAVIS:

"z
II ~
...oII<
CL
~ 12 ~
~r~ MS. ! 14 .~ x.. 15 ~ "II< ~ 16 ~ MR. co z 17 ~

Ovid Davis, President of the State Chamber of Commerce. MORAN:
Charlotte Moran, representing the Georgia League of Women Voters. BEXLEY:
I'm Harry Bexley, Legal Counsel for the AFL-CIO.

]1{ JUDGE SMI'fH:

19

George T. Smith, Court of Appeals, sitting in for the

20

Chief Judge.

21 JUDGE CALHOUN:

22

I'm Marcus Calhoun, representing the Superior Court

23

Judges.

24 MS. WILLIAMS:

2.')

Lucy Williams, Fulton County Grand Jurors.

PAGE 4

I'm Albert Thompson, Chairman of the Special Judiciary of the House of Representatives.

8 ii
I
() II

10

CzJ 11 t-
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(@@)Jr ~ t.z=.. ~

14 >t'" :J:

IS ~

":'>"

... 16

III
Z

0z
'" 17 III

18

19

20

21

22

23

24

25

I'm Wayne Snow, Jr., Chairman of the House JUdiciary

Committee and designee Chairman of this Committee by the

Select CommitteG on Judicial Reform

revis:ic'n. All

right. I thought we would commence here today, if it

meets no objections, by going through the 1976 Constitu-
I
tion. As we do so, we can find the areas that we may havel
,
agreement on. We certainly will find those areas that we
I
have disagreement on. And in doing so, will be in a better

position to see where and what sections of Article VI needl further studying and where we need public hearings and

where we need better input. Now, if there are no objec-

tions to that procedure, then we will start with Paragraph

I of Section T of Article VI. Now, you have that before

you. It's also on this page, but we have the other pro-

posals that have been introduced in 1969 as well as 1964.

And we also have the proposal of the Governor's Commission

in 1964. Now, that's not included on this particular page

but we can make reference to that as far as language is

concerned as we actually get into the language p~rtions

hereof.
I
Now, I think the best way to do it is to start readin~
----'

it on a paragraph basis.

It's

really

not

_ PAGE 5 ..._- .._----------. I I
that long, as

2

such, as far as the Article is concerned. But I feel

3

relatively certain that we will run into many areas that

4

we're going to have some discussion about as well as some

5

debate and of course what we're going to finally wind up

I

6

with is something that we have a great deal of understand-iI

7

ing on, I'm sure.

8

All right. "Paragraph I. Courts Enumerated. The

9

judicial powers of this State shall be vested in a Supreme

10
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II I-
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12 ~
~~r~ ~ l 14 l:J: 15 ~ ":'>" 16 ~ o Z <l 17 ~

Court, a Court of Appeals, Superior Courts, Probate Courts Justices of the Peace, Noatries Public who are ex-officio Justices of the Peace, and such other Courts as have been or may be established by law."
Now, when we corne to this section and it being Parvgraph I, it directs OUT attention to what courts we should have enumerated in the Constitution of this St~te. Now, are there any comments about this particular paragraph?

18 rm. DROLET:

19

Wayne, I think the J.P. question comes up immediately

20

in here. a little further on. And I was waiting for some-

21

body else to hring it up.

22 MR. STUBBS:

23

Why spell out any other tha0 the Supreme Court?

24 MR. SNOI\l:

25

Well, we might go to the language then of 1964 and

PAGE (')

see how that correlates with Paragraph I here. Of course,

2

the courts of ordinary as appear here in 1969 would be

3

now the courts of probate. as well as in the--

4 JUDGE CALHOUN:

5

In reference to Mr. Stubbs suggestion, I think the

6

Constitution should guarantee to the people one general

7

trial court,. So it seems to me that we could eliminiate,

8

starting at the first comma on line three of the 1976 Con-

9

stitution and eliminate down to the first comma on line

10
II .~ z.. ar: ..0....
@ r12 u.'".. ;: .z.. U...

five. So you'd have in your Constitution, a Supreme Court, Court of Appeals, Superior Court or you could say, general trial court or whatever you wanted to call it-general trial court and such other Courts as may be

14 ..>..-..

established by law.

<l

J:

15 ~ MR. SNOW:

".'::.">.
16 .z..

Okay . ~re there comments on that suggestion?

0

Z

<l

17 ''"" MR. R. HARRIS:

18

I agree with Judge Calhoun.

19 JUDGE CALHOUN:

20

Well, you might, in order to placate the probate

21

judges, if they need placating, say probate courts which

22

may be a part of general trial courts. If you leave it in

23

here as it is now, I don't know whether you could make

24

them part of the Superior Court which is where they'd

25

generally be. Or maybe you could.

_ _ _ _ _ _- . J

MR. STUBBS:

PAGE 7
--------1
I

2

If you're going to spell out other courts in the Con-

3

stitution,-I think this is the root of what I was saying.

4

I have no disagreement with Judge Calhoun's suggestion,

5

but if you're going to spell out in your constitution,

6

Court of Appeals, your trial courts, courts of ordinary or

.,,

any other kind of courts, in your lead Article--lead

8

paragraph, just state in a Supreme Court and such courts

9

as established by this Constitution or which may be estab-

10

lished hereafter. It comes to the same thing.

"z
]] ~ MR. SNOW:

..o....
12 ~

I don't see any reason to keep them actually in this

@r!

first paragraph.

]4 ~ JUDGE CALHOUN:

':"z:

]5 ~

That's true. If you say, as established in this Con-

"'~"

]6 .~..

stitution and then put them in .

az

]7 ::; MR. STUBBS:

]8

I think--my remarks, Judge, as this: let's have as

]9

little in here as possible.

20 JUDGE CALHOUN:

21

I agree with that. I agree with that.

22 MR. SNOW:

23

All right. Then, after Superior Courts, and such

24 II

other courts as have been or may be established in this

WO~dS' ~ 25 Lonstnution or by law? Then, we'll strike the

__

r
2I
3I

PAGE 8
Probate Courts, Justices of the Peace, Notaries Public who are ex-officio Justics of the Peace. Now, is there any ob jection to striking that language in Paragraph I?

4 I' MR. THOHPSON: I

5I

Wayne, let me ask you this.

Has it been voted in

6

that we would have a unified court system and that we

7

wouls establish it?

8 MR. SNOW:

Yes. Now, we get into that in Paragraph II here.

10 MS. MORAN:

z"
II I-
.'.o"....
@;I

I
I
Could we please consider the suggestion that, in lieu
of Superior Courts, we use the phrase, general trial
courts? Unless that really would upset judges in the

! 14 I'<"l( :J:
15 01) MR.
'"~" 16 .Iz.I.I
0z
<l(
'" 17 al

superior courts. SNOW:
Yes . I think we'll get into that when we the section on Superior Courts and the Probate

get into Courts as

III

they appear later in the Constitution.

19 MS. MORAN:

20

Well, for consistency's sake, I think it's better.

21 MR. SNOW:

22

You mean, better than saying superior courts?

23 MS. MORAN:

24

Yes. I think--I'm looking at this from the point of

25 view of somebody picking up the Constitution for the first time.i

---, PAGE 9
-------------- - -- ------
And I think trial court is a lot more specific than super-II

2

ior court.

I

I

3 MR. SNOW:

4

I can see no objection to that, can you, Judge, as

I

5

far as the superior courts would be concerned?

6 JUDGE CALHOUN:

7

No.

8 MR. R. HARRIS:

9

The language in 1964 was trial courts of general jur-

10

isdiction known as superior courts.

"z

11 ~ MR. SNOW:

.o..

12 ~

@-- IU

Is there any objection to that?

JUDGE SMITH,

! 14 ...... <xC
.. 15 ~
":>
16 ~
co
Z
<C
17 :

If you don't use the words, superior courts in there, somebody's going to get it out that we're trying to do away with all superior courts as trial courts. I think Robin's suggestion was much better. Have that word,

18

superior courts tied in there someplace. Otherwise,

19

they'll say you're trying to do away with trial courts.

20

Or you'll never get it passed.

21 MS. MORAN:

22

But trial courts of general jurisdiction known as

23

superior courts, I think that's fine.

24 HR. SNOI'J:

25

Okay. That L. king the language of the 1964 revi- !

._-----_._._--_------!

sion. Yes, sir? 2 HR. ROBERTSON:

PAGE 1..0
--I
I
I
I

3

3.re you si'lying the you're deleting the

ill,

4

judges of the probate courts and the Justice of the Peace

5

Courts?

I
6 MR. SNmri:

7

From Paragraph I. But we will be keeping in the

II

R

language, and such other conrts as have been or may be

9

established in this Constitution or by law. In this

10

Article. okay. "The judicial powers of this State shall

CzI 11 ~
.'o."....
@;j

be vested in a Supreme Court, a Court of Ap~eals, trial courts of general jurisdiction known as superior courts, and such other courts as have been or may be established

! 14 ~ Oft %
15 .:> MR.
"'~"
16 .~.. D Z
17 :

in this Article or by law." Are there other comments?

STUBBS:

I

I

Wayne, I know one point that was raised in the Judi- I

cia1 Council's Committee working on this, was some restraift

18

--this may be a defensive comment--some restraint on the

19

General Assambly from unilaterally just creating courts

20 21 22 23 24 25
ll-

as it wanted to. And, if you'll recall, in the draft that the Judical Council has, which apparently has not been approved by the Council, there was a limitation on the unilateral power of the General Assembly to create courts. They would be created in conjunction with the Judiciary
and also involving the Executive, necessarily. An_d my ---l

PAGE 11

~
only comment along that line would be, either establish II
i

2

in this Constitution or pursuant thereto, if that concept \

3

is adopted, rather than spelling it out by law, leaving

4

the legislature independently free -to create additional

5

courts. I think one of the objections that has been in

6

the Governor's Commission on Judicial Processes in the

7

past has been the b~ffer of courts of general jurisdic-

8

tion created by the General AsseMbly without any real in-

9

put from the Judiciary itself. And if this is the juai-

10

cia 1 Article, that concern is manifested along the lines

.."z
11 t-

I've mentioned.

.o..

e);~i12 ~

ing anything.

MR. SNOW,

That's just a comment.

I'm not advocat-

! 14 .t.-.
:z:

All right. Dean?

".. 15 ~ DEAN PATTERSON: :)

16 .~..

I was wondering if that problem could be taken care

Q

Z
17 ::

of in the next section on unified judicial system? I

IS

think that would be the appropriate--

19 MR. STUBBS:

20

It could be. Well, in the draft of the Judicial

21

Council's Article, for example, it provided for the crea-

22

tion of courts, a specific provision in there which did

i

23

have a limitation. And obviously. that would qualify them'lI

24 MR. SNOW:

I

25

Are there further comments on Paragraph I?

I
I

J

PAGE 12

DEAN COLE:

2

I'm a little confused why in the section enumerating

3

courts, we've enumerated three and are referring to other

4

sections of the Constitution for others. If we want, say,

5

six constitutional courts--which I don't--I kind of agree

6

with Bob Stubbs original comments that we might want to

7

specify less--but I~m a little cbrifused why we're specify-

8

ing,three when there are other constitutional courts appar

q

ent1ybeing considered. Wouldn't it be more rational to

10

specify all the constitutional courts in this section 17

Czl

11 l- DEAN PATTERSON:

0;

0......

@!)r12 .u'".. .iz=.. U '"

I think the question there is whether you want these courts to be constitutional.courts .

14

I ~ DEAN

COLE:

'"
%
15 .:l
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~
16 Iz..I.I
zClI
17 ''""

I think so. But aren't we leaving them in now when we say, have or may be established in this Constitution or in this Article? I think that's a question we have to

18

face. But right now it seems to me we're--

19 DEAN PATTERSON:

20

Yes. It seems to me, though, the question's going to

21

be whether we're going to include these other courts in th

22

Artie Ie.

23 MR. SNOW:

24
25
u--

Well, I think what we're going to get into is how

we're going to define these other courts possibly in rela- I

.

-.-J

PAGE 13
--------1

tion to the trial courts--the superior courts. I wonder I

i

I

2

if we might not or could say, trial courts of general J ur-II

3

isdiction, not known as the superior court, but such as

4

the superior courts or--

5 MR. R. HARRIS:

6

Why don't we--after we get through with the other

7

courts and how they're going to be dealt with, you could

8

come back to this paragraph and either go the Stubbs route

9

or the method of putting them all in and make the decision

10

at that time.

"z

11 ~ MR. SNOI'l:

.o..

@._,.12 ~

All right. on this?

Do you think we just ought to pass then

14 .~.. MR. '~" :I:
15 ~
"'";:) 16 .~.. MR.
oz
~
17 ~

R. HARRIS:
Leave it like you've got it now and come back.
SNOW:
All right. We '11 go to Paragraph II, the Unified

18

,Judicial System. "For the purposes of administration, all

19

of the courts of the State shall be a part of one unified

20

judicial system. The administration of the unified judi-

21

cial system shall be as provided by law. As used herein,

22

administration does not inC~ude abolition or creation of

23

courts, selection of judges, or jurisdictional provisions

24

other than as otherwise authorized in this Constitution.

25

The administration provided herein shall only be performed

.

._ ...

.-J

PAGE 14

by the unified judicial system it self and shall not be

2

administered to or controlled by any other department of

3

" Goverr.m,~"t. ~nd, folks, let me assure you that this was

4

not an easily-passed constitutional amendment when it was

5

first--first came before the legislature. In fact, the

6

original unified judicial system, as it was proposed in1-

7

tial1y, included nothing more than the first two sen-

i

8

I tences. And the latter part of it was added as a compro-

I

9

mise to make sure that there was no abolition of courts orl

10
.."z
11 ~
@;;..o.... MR.

anything insofar as at that time. Now,
I I. STURBS:

this particular we're ready for

amendment was concernet
I comments on Paragraph

! 14 .~ .. :I:
1S .:>
"""::> 16 ~...
Q
Z 17 ~

Wayne, I know why you're looking at me. I might say by way of explanation that I was on Robin's Committee; I worked with Judge Bell's Committee and I was on the Judicial Council Committee. And it's only by long exposure to

18

this problem that I've got a big mouth. I'm not trying to

19

dominate anything here.

20 MR SNOW:

21

Go ahead.

22 MR. STUBBS:

23

The only comment that came out of--that I seem to--

24

that I recall with any specificity on this, was that

2S

rather, again, than providing for the administration of

PAGE 15
pr:v~~e---l the judicial system or the Judiciary by law, to

2

for it by the Constitution--to do more than give lip ser- I

3

vice to the Judicial Branch as a separate branch--to

4

I specify that its--the management of the judicial system

5

would be in the Judiciary, rather than as provided by law II

6

which leaves it in the legislature or the legislature and II

I

7

the concurrence of the governor.

I

8 MR. SNmv:

9

Is there any objection to the language as it appears

10

here?

"..z
11 j: DEAN
..o....
@;~

PATTERSON:
I think it us exactly what

would be helpful if Mr. this paragraph means.

Stubbs

could

tell

14 >- MR. STUBBS:

l;;

%

..15 .: "

Well, as Wayne pointed out--I don't know exactly what

:>

16 .~.. oz

it means, but as Wayne pointed out there was a tremendous

17 ~

concern that the creation of a unified judicial system

18

along with the parallel legislation was going to abolish

19

judgeships, abolish judicial circuits and generaly wreak

20

havoc with the judicial structure that previously existed.

21

And that's why the qualifying language was added to the

22

original Article proposed by Judge Hall's Commission at thd

i

23

time. It basically is providing for or it contemplated

24

I providing for a government, in an administrative way, of

25

I the Judiciary. And I think perhaps the way in which it ha~

i
_~_.J

PAGE 16 - - - - - - - - - - - - - - 1 .---------~-------

been implemented would be, perhaps again, the best explan-!

I

2

I
ation of what was intended because that there were enough i

people involved in the formulation of the legislation

creating the administrative office of the courts and the

5

Judicial Council, who were instrumental in getting the

amendment adopted as it is in the Constitution now. For

7

that purpose, Judge Calhoun has served as Chairman of the

8

Judicial Council, I believe. I know you've been a member

of it.

10 JUDGE CALHOUN:

Czl

@;;11 ... o.a....:..

Not Chairman, a member.

MR. STUBBS:

Bob Doss, who's sitting over in the corner, is the

l 14 ..x....

15 0:1

Cl a:

;:>

16

.~..
zo

MR.

17 :

Director of the Administrative Office of the Courts. If you want an exposition, I'd much prefer to defer to them. SNOW:
Judge, would you comment on it, please, sir?

18 JUDGE CALHOUN:

19

Well, of course it's been a dream of a lot of people

20

for a long time that'the courts ought to all be a part of

21

one system because everybody knows we have a very frag-

22

mented system of courts in this State. Of course they are

23

not a part of one system now, irrespective of what this

24

says. I think the way maybe to cure what we're talking

25

_ _ a_b_ ou_t _is_to_ _eli_m_in_at_e _ev_er_yt_hi_ ng_e_xc_ep_t _th_e _fi_rs_t _se_n_ - -----1

PAGE 17 rr------------------------------.~~--~.---!
tence of this paragraph. And Just say that all the courtsli

2

shall be a part of one unified judicial system, period. I

I

3

That's the way they ought to be. Well, you'll have to

I

i

4

provide for it later on in the Constitution. You'll have I

5

1:0 say here

-.qr8e with Bob Stubbs a hundred percent.

6

It ought to be done by the Judiciary and not by the Legis-

I

7

lative or by the Executive.

8 MR. OVERBY:

9

You know, we've got to pass this in the General

10

Assembly first.

Czl

11

~
o..II..<...

JUDGE

CALHOUN:

~~-/~~ 1~4 ! !;;

I understand that. And the people have got to pass it, too. I think we ought to--that this Committee ought to submit what they think would be best and if you have

:II:

15 ,)
~

to compromise when you get it before your Committee or

~

16 .~.. az

Wayne's Committee, I guess you'll just have to do that .

17 :

But I think we ought to do what we think's best.

18 MR. DROLET:

19

Well, the question I think that raises is who should

20

the judicial system be unified under--The Supreme Court or

21

some other judicial agency? I agree with Judge Calhoun

22

that the first sentence would seem to summarize it very

23

well.

24 JUDGE SMITH:

25

That's the question I raise--who's going to admini~~-=.J

it?

PAGE 18

- - - - - - _ . _ . ~ - - - - - - - - - - - - - - .

"------_._-----------------

I

2 MR. DROLET:

3 ii

Righ t.

I 4 II 1-1 R S NOW:

It leaves that absent.

5

I would not oppose the language being deleted in the

6

last two sentence, but r do think that probably those

7

first two sentences ought to be retained in this.

8 JUDGE SMITH:

I

9 II

I agree with you.

However you're going to leave the

to

control of the courts then.

"z

II

...
."o..'.

MR.

SNOW:

1M

~ 12 ~

Well, being in the legislature, Judge, I just kind

~r~

of feel partial to those kind of things.

!..14 ... MR. THOMPSON:

:z:

15 .:.

Judge, the problem is, who's going to make the deci-

":">'

16 ~ 1ozM

sion if you just leave it han~ing in the air?

17 ~ JUDGE CALHOUN:

18

Well, it would have to be handled somewhere further.

19

It's been proposed, you know, to have something akin to th

20

Board of Regents or a Judicial Council appointed by the

21

Supreme Courts or various other agencies which would do it~

22 MR. SNOW:

23 24
25
lL

Let's do this paragraph on this basis. Is there any
I objection to the retention of the first sentence of ParaI graph II? Now, I am under the impression that there is
-----!

PAGE 19
-----------l
I to the retention of the second sentence of Paragraph II.

2 JUDGE CALHOUN:

I

!

3

Yes.

!

4 MR. R. HARRIS:

I

5

As worded.

6 MR. SNOW:

7

As worded. All right. Let's phrase a question as

8

to the second sentence. Now, is there objection to the

9

deletion of the last two sentences of Paragraph II? If

10

there is no objection, then we will delete the last two

"z
II ...
.'2"..
~ 12 ~
~r~ MR.
..! 14 !;;
:II:
IS o!)
"'";:)
16 ~...
..czo
17 :

sentences. We will keep the second sentence for further study and the first sentence we will retain. HIGHT:
Wayne, on this sentence--and I'm just throwing it out--there is a possibility under thls when you start talk ing in terms of administration--and you could be talki.ng about going down to your local units of government on a

18

particular line to create your city courts. It looks like

19

this could, perhaps, pose problems to them in relation to

20

the abolishment of courts, you know, perhaps through the

21

administrative procedure that could abolish courts estab-

22

lished by law. It's just something to--for the Committee

23

to look at--how it will affect your local courts in rela-

24

tioD to that paragraph.

25 MR. SNOW:

PAGE 20

Howard, did you have--

2 ~R. OVERBY:

3

No. My only comment was that with striking that, I

4

don't think it would ever corne out of the Senate Judiciary

5

Committee. I can't speak for the two House Committees.

6 MR. THOMPSON:

-, III

I like the first two sentences in there. r'll tell

I

8

you one thing about the legislature. We have a fOIum set

9

up where people who have some input on what they want in

10

11 .Cz..l

II<

..0....

12 II<

0rU ;;:

.iz.=..
U

MR.

..14 .>.. :r 15 ~
..Cl
II<
::>
16 z... 1:1 .Z
17 II<

the way of courts can come. And we have to be a little responsive to what the public wants . And I think that any other setup that we have would not meet this criteria. SNOW:
Well, Marty. when we corne back the next time, we will of course show what has been retained in here and also what we have questions about and also what we have deleted So that we will be able to make reference back to each one

18

of these sections as we get further into it and we'll cer-

19

tainly have that information before us. I did not hear

20

objections as to the deletion of these last two sentences,

21

though. Okay. We will then go to Section II. Supreme

22

Court and the Court of Appeals.

23

I Do we have someone hwere from the Supreme Court now?

I

I

24 MR. HEWLETT:

I

25

!Indicating affirmative response.}

.

I
-.--.Ji

MR. SNOW:

PAGE 21 -----~--1

2

Yes. Good. Now, Paragraph I. Supreme Court and

I

I

3

Court of Appeals, Supreme court Justices; Quorum. "The !

4

Supreme Court shall consist of seven associates Justices,

5

who shall from time to time as they may deem proper, elect

6

one of their members as Chief Justice and one as Presiding

7

Justice. The Chief Justice so elected by the other Jus-

8

tice shall be the chief presiding and ~dministrative offi-

I

9

cer. of the court, and the Presiding Justice, elected in

10

like manners, shall perform all the duties devolving upon!

..zCI
11 j:
..0......
@ r12 !..:.! t:: ~ U '"

the Chief Justice, when he is absent or disqualified. A majority of the court shall constitute a quorum."
Are there comments on Paragraph I?

14 I.>.--. JUDGE CA.LHOUN: %

.. 15 ~ CI

Is it necessary to have all this language in there,

;:)

... 16 zIII

really, in the Constitution?

..0z
17 III MR. SNOW:

18

It would appear that in that particular sentence, you

19

could just say that the Supreme Court shall consist of

20

seven associate justics who shall elQct one of their mem-

21

bers as Chief Justice and provide something for the~ to

22

set up some of their own rules. Joe?

23 MR. DROLET:

24
25
LL

Again, this ties into Paragraph II above if we pre-
sume the Supreme Court is not going to change its function I .. ---!

--------------
with rega~d to a unified

PA(a~ 22
----""--"--" "---"-----""-"----"---"-----""---1
I
judicial system, I suppose it's

2

all right. But if they do have some function in the ad-

3
:1

ministration, then, you know, this would have to reflect

I'

4

whatever we've said above, assuming we change that. If

11

II

5

II
Ii

it was a unified judicial system under the Supreme Court,

6

that would have to be reflected here, I would think. But

7 II

we haven't decided.

II

8 MR. SNOW:

I

9I

On 3E, Supreme Court Justices--did you have some-

10

thing, Joe?

"'Z
11 ~ ~1R.
..o....
~ 12 ~
~.- ~ MR.

DROLET: No.
SNOW,

! 14 ...

What do you think about that language? That was pro-

'"<l(

J:

15 ~

posed by the Revision Commission in 1964.

"at
~

16 ~'" JUDGE SMITH:

o

'Z

<l(

17 ::;

Which one are you talking about, Wayne--Paragraph

18

2 (a) on 3E?

19 MR. SNOW:

20

No. I'm talking about Paragraph 1, Section 2.

21 MR. HIGHT:

22

Wayne, are you proposing to delete the last sentence

23

in relation to that on 3E or leaving 3E as it is?

24 MR. SNOW:

25
LL

Well, I just wanted you to comment on 3E and what you -------"I

PAGE 23
- - - - - - - - - - - - - - - .. _..----_. _._--_. _ ----_._._.... ... -_.__._-------,
thought about that language.

2 MR. HIGHT:

3

I think the language would be fine, particularly in

4

that last section. otherwise, if you didn't leave it as

5

it is, you could run into a situation perhaps of having

6

one-judge decisions of the Supreme Court down the line on

7

even some major issues. And 3E simplypreserves the fact

8

that you have a majority of the court rendering decisions

9

as a Supreme Court rather than having a single judge bur-

10

dened. I think it would be very important to leave that

language.

SNOW:

All right. Do we have some comments?

R. HARRIS:

That language is not currently in the Constitution?

You're proposing putting it in?

i

HIGHT:

I

I

18

Well, similar language is present.

I

19 MR. SNOW:

I

20

doesn'~ The present language just requires a majority,

21

it?

I

22 MR. HIGHT:

I

I

23

It requires a majority, which this would be.

I

24 JUDGE CALHOUN:
I

25
11-

It

just requires

a

majority

for

a

quorum,

not
.

for
.

a

I - 1I

PAGE 24

decision.

2 MR. HIGHT:

.'

That's true.

4 MR. STUBBS:

5

One thought, Wayne, that the General Assembly had, I

6

believe it was last year or the year before, when they mod

7

ified the habeas corpus proceedings, recognized the power

8

of the court, at least implicitly recognized it, to act in

9

a different way than a full-bench hearing by allowing one

10 Iz:l
.. II ~ '0.".'.
@ r12 .u".". j: .z.. V '" 14 >~ '~" :I: 15 ~ ".:":.">. 16 .z.. ) z 17 '.~",'
III
19

justice in effect to determine whether or not to allow a particular case to come up--somewhat patterned after the Supreme Court of the United States. It seems to me that if you lock it in every decision, even in--maybe I'm overly sensitive here, but habeas corpus come up like rain coming down in the tropics. And if they've got to have a full-bench decision in every habeas corpus application, you're hampering them, at least in that one particular . It's now fashionable to ask for certiorari in almost every case out of the Court of Appeals, just as a matter of

20

habit. And Lord only knows what we're going to get in the

21

future.

22 MR. SNOW:

23

Well, with the case load that we've got right now,

24

I would like to see the courts by their own rules be able

25

to presecribe this. Don't you think so, George?

PAGE 25

JUDGE SMITH:

2

Yes I sir.

3 MR. SNOI'l:

4

All right. Is there any objection to the language in

5

Paragraph 1 of 3E in the first two sentences and the dele-

6

tion of the last sentence? Do I hear any objections?

7 JUDGE CALHOUN:

8

What are we doing--substituting the 1964 language

9

now?

10 MR. SNOW:

"z

11 l-
...II<
o

We're putting the 1964 language in ther,row'

@;i DEAN COLE: There would be no constitutional quorum requirement?

! 14 .I.-.

Is thi

~ :J:

15 ~MR. SNOW:

"II<
::l
16 .~.. az

That's correct .

~
17 ::: DEAN PATTERSON:

18

Question--is there any reason for limiting the number

19

of justices by the Constitution?

20 MR. SNOI'l:

21

Well, the only reason that I personally coul~ think

22

of, is a situation where you're trying to just put a lot I

I

23

of folks on the bench. There could be a legislature at

24

I some time or--that would be prone to do it. I'm not in-

25

clined to think that the mood of the present General Assem-II

PAGE 26

bly would be such as to increase the quota.

2 MR. R. HARRIS:

3

You mean, court-packing?

4

MR. SNm'l:

5

Well, that's what we call it.

6 JUDGE SMITH:

7

Well, the court of Appeals--the Constitutior: allows

8

the General Assembly to add any number they want.

I 9 MR. R. HARRIS:

10

Currently.

.."z
11 ~ JUDGE SMITH:

..o....

@ r ~12 ~

Yes,

MR. SNOW,

currently.

14 ..>....

You can't ever tell what we might do to that one

<C

:I:

15 ~

when we get to it, Judge.

"or:
;)

16 .~.. .JUDGE SMITH: co

Z

<C

17 :

It suits me. I have no objection to loading them

18

down. But I think when you do that, you're going to have

19

to give the courts, then, some latitude to pass their own

20

rules and regulations as to how to handle appeals. Other-

21

wise, you're going to blow us out the top.

22 MR. SNOW:

n

That's what we're trying to do here in deleting this

24

las t sen ten c e .

25 JUDGE SMI'l'H:

I ---~

I realize what you're doing.

PAGE 27
.., ._---- .' -- .---..--.--
That just adds strengt~

2

to it is what I was--

I

3 DEAN PATTERSON:

I

4

No, I simply raised the question about the number of

S

justices. I don't have any strong reason one way or an-

6

other.

7 MR. R. HARRIS:

8

I think from the Supreme Court's standpoint the

9

better route to travel is to lock in the number.

10 MR. SNOW:

..CzI
11 i=
.o..
1M
12 ..
@r~~

Have you had any occasion to hear any of the justices discuss the number or the--or the arnount--the number being locked into the Constitution?

..14 .>..- MR. HEWLETT:

<xl

.". 15 0) :::lI

No, I sure haven't.

16 I~D MR. STUBBS:

oz

<l

17 :

Wayne, for whatever it's worth, when the Judicial

18

Council Working Committee, not the Judicial Council's de-

19

eision, but the Committee that was working on a draft, we

20

did get input through Bill Gunter--Judge Gunter who was on

21

the Committee--that they liked the seven. Now, Judge

22

Smith's comment about the Court of Appeals--siuce the ori-

23

entation was to--if there be an expansion of jurisdiction, I

24

it be at the expense--work expense--of the Court ,)f APpeal~.

2S

That that eourt was made flexible for that purpose, but

I

I

-------------------~_._---

PAGE 28

with something other than the exclusive decision of

2

the General Assembly On how many members. It would re-

3

quire judicial participation in that decision. So that if

4

the court wanted more members, the legislature would have

5

to concur. If the legislature wanted less, the court

6

would have to concur. In other words, it would not be a

7

unilateral decision.

8 ,JUDGE SMITH:

9

But I think the legislature could have the last word

10

regardless of--

..zCI
II j: MR.
@;;..o....

STUBBS: Well, certainly, by passing
it to the people as an amendment

a resolution and submit to the constitution.

..14 .~.. MR. SNOW:

:J:

..IS ~
":;)

Charlotte, do you have any comments on this?

16 ;... MS. MORAN:

Q

Z 17 ~

Well, I think, you know, I try to view this from the

18

point of view of all those poor little eighth graders that

19

have got to study the Georgia Constitution. I think it's

20

--it's for clarity to have at least the Supreme Court as

21

fixed number. I can certainly see the advantages to

22

having the Court of Appeals a more flexible number to deali

I

23

I
with the increasing case loads, but I think a lid on the I

24

Supreme Court number would be appreciated.

I

25 MR. SNOW:

I

...

Ji

How about you, Lucy? 2 MS. WILLIAMS:

PAGE 29 --------------------l
I

3

I don't feel knowledgeable enough to comment on that.

4 MR. SNOW:

5

All right. We want all you folks, now, who are--you

6

know, we've got a number of lawyers on this thing and we

7

certainly want to have some input--anything that y'all

8

have on any portions here.

9 MR. DAVIS:

10

Mr. Chairman, I certaihly agree that ~e ought to nail

.."z
II .-

a lid on the number of Supreme Court Justices .

..o....

~ 12 ~ MR. SNOW:

~r~

Okay. Then, again, let me ask the question I asked

! 14 ...-.

a moment ago, is there any objection to taking or tenta-

%

.15 ~
"~

tively adopting the 1964 language as appears on 3E with

16 .~..

the deletion of the last sentence of that paragraph?

"z

17 : DEAN COLE:

18

I'm a little concerned about no quorum requirement.

19

I believe in a court controlling their own docket, but it

20

I
seems to me that allowing the Supreme Court to decide that

21

two justices is enough for a quorum, not the decision, is

22

giving them power that the people might not want to give

23

them. I would suggest that a majority of the court shall

24

constitute a quorum, period, would be possible.

25 JUDGE SlU1'H:

I
--------~

--.----P-A-GE-30- l

I agree with him.

I

2 1'1R. BEXLEY:

I

I

Certainly so.

I
4 MR. SNOW:
I

5

Then we'll delete only the last portion of the last

II
5 e n ten c e beg i ' 1 n i n 9 wit h 1- hew 0 r d, but, and end i n 9 wit h the

I

7

word, CJse. and retain, "A majority of the Court shall cant

8 ,I

stitute a quorum." Any obiuctions to that?

I
i

9 :rUDGE SHITH:

I

I

to

I That means, then, that less than a--means that Jess

Czl 11 ~
o..IX....

than four could bring about a decision of the case, does- II

@;i nit it'? MR. R. HARRIS:

I

! 14 .~ ..

Which is the way it currently is.

I
I

:I:

15 ~ JUDGE SMITH:

Cl IX
:>

16 .~..

Uh-uh .

Q

Z 17 ~ DEAN COLE:

18

That's in the Constitution now.

19 .JUDGE SMITH:

20

It takes four to render a decision.

21 DEAN COLE:

22

It takes four to render, but it doesn't take four

23

votes to--in other words, it could be a--

24 MR. SNOI'l:

25

The present Constitution provides that, "A majority I

I
------J

PAGE 31

of the court shall constitute a quorum." Period. 2 DEAN COLE:

~
I
I

3

That's only to legally do business.

4 JUDGE SMITH:

5

Well, how are we going to be sure, then, that--four

6

could sit and one could write an opinion and the other--

7

you could wind up, then, with an opinion with less than

8

the majority of the court.

9 MR. R. HARRIS:

10

Which you can today.

zCJ
11 to DEAN COLE:
'o.."....

e-~12 :

Well, that's better than not having a quorum require-
mont.

... 14 )0 JUDGE SMITH: to

~
:r

15 ~ CJ

I haven't seen one like that, but I certainly think

'";:)
16 ~
az

that--certainly think it ought to be a majority of any

17 :

court to render an opinion on appeals.

18 MR. R. HARRIS:

19

I don't disagree with the concept, but it hasn't

20

posed a problem in 125 years. Why add it now?

21 JUDGE SMITH:

22

Because so many problems arise even though we're 125

23

year sol d

M MS. WILLIAMS:

25

We've got a lot of problems we didn't have 125 years

ago. 2 JUDGE S1UTH:

--, PAGE 32
- - - - - - - - - ------------ _ --_ .. ...._--

3I

I just don't want to leave any gap to where either of

4 II

those appellate courts with less than a majority couId

II

5

render a decision.

6 MR. BEXLEY:

7

I'm in whole hog agreement.

8 JUDGE SHITH:

9

I can see where a man with a death sentence could be

10

with less than a majority of the court to render a deci-

11 ."z..
..o
A-
12 ~ MR

sion .
BEXLEY:

e - ~. Three people.

14 .>.. MR. HIGHT:

'~"

:t

." 15 ~ ::;)

That's the point I was making earlier.

16 ~... JUDGE SMITH:
zo

~

17 :

Yeah. But I didn't know it was going to raise its

18

head again was the reason I kept quiet then.

19 DEAN PATTERSON:

20

But isn't it really established law that an appellate

21

court renders a decision only by majority--in other words,

22

has that problem ever arisen in any court in the country?

23 ,JUDGE SHITH:

24
25 lL..--

I don't think it's ever been questioned before, to

tell you the truth.

..--J

PAGE 33 ".-------------------------- ---------------------------1
I
DEAN PATTERSON:

2

You know, it seems to me we've got to have some con-

3

fidence in the men who are on the court.

4 JUDGE SMITH:

5

You've got to have what in them?

6 DEAN PATTERSON:

7

Some confidence in them.

8 JUDGE SHITH:

9

But don't put all your life in their hands. I'm up

10

there and we're human just like everybody else.

zCJ
11 ~R. HIGHT:

..o....

~ 12 ~

That 3E that you have stricken before is exactly--if

~r~ ! 14 ..-..c..

~/ou look at it again, that's exactly what~u're talkin~ about .

:J:

..15 ~ JUDGE SMITH: CJ

:;)

16 .~.. a-zc

Does anybody know of any provision anywhere in statu-

17 :

tory law that requires a majority of the court to render

18

a decision? Does anybody?

19 DEAN COLE:

20

I think it's only a majority of the sitting court--

21

majority of the quorum.

22 MR. R. HARRIS:

23

Well, maybe ih the existing rules of the court. I'm

24

not familiar with them.

25 JUDGE SMITH:

_____________-1I

But let's

not

depend on rules.

PAGE 34
-~----~-------~ ~ ~ - - - ~ - - - ~ - ~ - - - - I
though. Rules can be i

2

changed.

3 MR. SNOH:

4

Well, the present Constitution provides that a major-

5

ity of the court shall constitute a quorum.

JUDGE SMITH:

7

Yeah. But that's just to sit.

8 ,JUDGE CALHOUN:

9

Why don't we just adopt the 1964? There's nothing

10

really wrong with it that I can see. They're doing it any

"z

11 ..
'.o."....

way.

@;~

l<1R.

STUBBS: What

are

you

going

to

do,

though,

with

the

myriad

of

14 ..~.... :<zl:
15 ~
"'"::> 16 ~o
z
17 :

motions that are made--we're getting them now that--based upon novels to the Supreme Court. We're getting--we're having to answer them on behalf of the State. Are you going to require the whole court to sit down and go throug

18

that garbage? I mean, on applications for jurisdiction.

19 JUDGE CALHOUN:

20

I don't think you have to do that. I think one jus-

21

tice can circulate it and get three other signatures just

22

by saying--without going en bank. I believe that could be

23

done; probablY is being done.

24 HR. STUBBS:

25

\'Ie 11 ~ the way --the ~;l' ;~_ - _J ~:i.n,:r Ui j , ':Lo"''lh, Judge, to I

~

PAGE 35

"--,:

the court at the last minute and they can't find them.

I

2 JUDGE SMITH:

3

This deals with jurisdiction, though, doesnt, Bob?

4 MR. STUBB;;:

5

I Yes, sir. As to whether or not the court should

I

take

6

the case.

I
7 JUDGE SMITH:

8

I That's a little bit different than a final adjudica-

9

tion.

10 MR. STUBBS:

"z
11 I-
@;;'..o"....

Oh, I have no quarrel with that. If the jurisdictional portions of the Constitution are going to allow the courts to--some latitude in acceptinG or not accepting a

! 14 I-

case. But the present Constitution says they'll take

'"
:I:
15 .:
"'";:)

habeas. Well, y'all don!t get them in the Court of APpeal~.

16 ~... oz

Or at least not many of them, if any .

17 : JUDGE SMITH:

18

We don't get any habeas corpus.

19 MR.. STPBBS:

20

But they come up--they're printed on everything from

21

toilet paper to letter wrappers o~ whatpver.

22 JUDGE SMITH:

!
I

I

23

I Of course, we get bond applications all the time now.

24

i
They come in therew-here some guy's in jail and the judge I

25

denied him and they made application and it comes to oneJ

judge up there.

PAGE 36
--------------- -1
And one judge can--we take the position

2

up there that one judge can pass upon it, but we don't--

3

we let three pass upon it~-the whole panel pass upon it.

4

That's kind of--

5 MR. STUBBS:

6

I guess this really--if there's going to be a devil's

7

advocate, it ought to be somebody from the court arguing

8

in behalf:of them. But it just seems to me that the na-

9

ture of the applications now to the court are so diverse

I

10

that there ought to be some decision on making power in tht

"z
11 l-
Io....l.t.
e;~

!
court less than a majority of the court to dispose of a
lot of the questions that are presented, not in a case
which--in which they accept jurisdiction or which they're

l 14 ...

mandated by the Constitution to take it, perhaps. But

'~"

:I:

15 0:1

certainly in all of these motions that are filed with

"lit
::I

16 .~oz..

them. There's hundreds of them, like y'all get too .

~

17 : JUDGE CALHOUN:

18

Well, how about just adding, in any case before the

19

court. because until they accept it, it's not before the

20

court; isn't that correct? Just add to this the words, in

21

any case before the court.

22 DEAN COLE:

23

We-I, unless we change the habeas jurisdiction, that

24

25

PAGE: 37 - - n--------------------------~-----------~-~--'-"---"-'~-I
attack--if I understand Mr. Stubbs, we should be attacking I

!

2

the discretionary jurisdiction. Once the court has the I

I

3

case, as you're indicating, it ought to be, it seems to I

4

me, a majority of justices. But the real problem, it seemr

5

to me, we're addressing is this constitutional jurisdic- I

6

tion which forces the court to take cases.

I

7 JUDGE CALHOUN:

8

Well, wny don't we just--Mr. Chairman, in order to

9

bring this to a head, I move that we eliminate the last

to
"z
11 j:
@;;oat "OM

part of this sentence and the last sentence says, "A majority of the court shall constitute a auorum." Period. We leave that as it is and we make a note to require in another part--an appropriate part--that a majority of the

14 !......

court be required to make the decision in any case which

:<rl

15 ~

they've accepted and are considering.

"at
::l

16 I~II MR. SNOW:

Czl

<l

17 ::

You've heard the motion.

18 MR. BEXLEY:

19

You mean a quorum of the seven?

20 JUDGE CALHOUN:

21

That's right. A majority of the seven, yes.

22 MR. SNOW:

23

You've heard the motion. Is there a second to that?

24 MR. BEXLEY:

25
u--

I'll second it.

.

~.

~ MR. SNOW:

PAGE 38

~ ~ - - ~ - - - - - ~ - - -~

.. - - - - ~ - _

~I

2

Motion made and seconded. All those in favor, indi-

3

cate by raising your right hand. [A show of hands.]

I!

4 II

Those opposed? [One hand raised.] It passes. All right.

II

5

We'll proceed with Paragraph II

6

Now, Paragraph II and Paragraph III are new constitu-

7

tional amendments that have passed in recent years. Para-

8
9
10
..Czl
II Ill: ..0....
12 Ill:
@ r .U.. j: z ~ u '" .14 )'<x"l 15 ~ "II: :;) 16 I.z.I.I Q Z <l 17 Ill: III
18
19
20

graph II. Court to Designate Judges to Preside, When. II "When one or more of the Justices of the Supreme Court are,
I disqualified from deciding any case by interest or other-
wise. the qualified Justices shall designate a judge or judges of the Superior Court to preside in said case. provided, that if all the justices are d1squalified, they or a majority of them shall, despite their disqualification, select seven judges of the Superior Courts to preside in the case, but they shall make such selections by lot and in open court from not less than twelve names of such Superior Court judges."
We really don't need all that much language in there, do we?

21 JUDGE SMITH:

22

Why can't you just say that disqualified justices

23

shall select any judge or judges to preside in such cases,

24

period. Then if they're all di~qualified, they can all

25

follow the same rule.

MR. SNOW:

PAGE 39
1

2

And put a perio~ after the wor~J casp. And the,

I

3

provided, and all the rest of it, delete it. Dops that

I

4

sound all right to everybody? Howard?

5 MR. OVERBY:

6

I'd just raise the question, "are disqualified by

7

deciding any case by interest or otherwise," What is the,

8

or otherwise--just plain doesn't want to act on it?

9 JUDGE SpaTH:

10

He may have a brother to bring the case before the

.."z
11 ~

court like I had the first day I sat. That's somethin~

o......

@;-.- i12 ~

you disqualify for, other than an interest in it.

MR. OVERBY,

! 14

Well, Judge, wouldn't it be an interest?

~

'x~"

".IS ~ JUDGE SMITH: ~

16 ~

Yeah. It's an interest. But that's not an interest

oz

~

17 ~

in the case the way this means right here. tve' re talk-

18

ing about monetary.

19 MR. STUBBS:

20

Why not let the court provide by rule for the rePlacel

21

roent of any judge who's disqualified, period. Because thel

22

it'ti
Canon of Judicial Ethics governs disqualifications and

23

quite flexible.

I

24 JUDGE SMITH:

I
I

I

25

II
But he "shall designate a judge jodges of the Super-

lL-

.-J

2 ~--

ior Court to preside in said case," period.

PAGE 40
That leaves

upl it pretty ~ide open, doesn't it, Bob? And they can set

3 II

their own rules how they're going to do it.

"

i

I4 MR. H. HARRIS:

I

I

5

Do we need to aelete the word, qualified Justices

:

in the first sentence?

7 MR. R. HARRIS:

8

Yes, you would-in order to cover the maximum.

9 MR. SNOW:

10

All right. Deletion of the word, qualified, in the

"z
11 ~
...oOf.
I>.

first snntence.

12 ~ JUDGE SMITH:

@rl

Because if all seven of them are disqualified, who's

! 14 ~ 'x<"I
15 ~ MR.
"Of.
:::l
16 .~.. a Z
<I
17 ~

going to select? R. HARRIS:
Well, by eliminating the everything that's provided in

word, qualified, you cover that proviso. And then you

18

don't need the proviso.

19 MR. SNOW:

20

Okay. Those in favor of the deletion after the word,

21

case--or is there any objection':to deleting it? If none,

22

then we have deleted it and retained the first sentence

23

with the exception of the word, qualified.

24 DEAN COLE:

25
.

One question . There is no procedure in Georgia--this

.

---l

PAGE 41

---------------------.,
I

is a question of ignorance--that disqualifies a Supreme I

I

2

Court Justice, is there, other than he or herself disqualit

3

fying themselves? Is that correct?

I

4 JUDGE CALHOUN:

5

I don't know. I think the Canons of Ethics would pro

6

vide for that. I think you could make a motion to do it.

7

There's no procedure.

8 DEAN COLE:

9

Yes. The attorney could. But the court itself does

10

not sit to disqualify a brother Justice?

zCI

11 i= JUDGE SMITH:

'..o"....

~ 12 ~

No, I don't think so.

~-~

that motion.

They might have to pass on

..14 >- DEAN COLE: ~

<l(
:z:

IS ~

I'm only concerned from a constitutional law view-

"'~"
16 .~.. az

point that an attorney might read that to say that there

<l(

17 ::

was some constitutional right of disqualification since

18

it says, are disqualified, rather--when one or more Jus-

19

tices of the Supreme Court disqualifies themselves. It

20

sounds--it reads as if there is some constitutional pro-

21

cedure for disqualification. It would be too clumsy to

22

say, when one or more of the Justices of the Supreme Court

23

24 JUDGE SMITH:

25
lL

--disqualifies and decides he can't do it?

I ji

DEAN COLE:

PAGE 42
----------------- ------------

2

Excuse me?

3 I ,JUDGE SMITH:

4 II

Just say, one or more of the JUstices of the Supreme

5

Court disqualify from"deciding any case by interest or

6

otherwise"?

7 DEAN COLE:

8

That would be moving toward that, yeah--taking it

9

out of the objective. Disqualified themselves from de-

10

ciding.

Czl

11 ~ JUDGE CALHOUN:

..o....

(~~~)}~i

I don't see any objection to leaving it like it is. There might be some provision or something could arise at

14 ~ I'x<"l
15 ~
Cl at ::>
16 ~ oz
17 ~

some future time--of course I don't think it could arise with the present Supreme Court--where somebody could be disqualified and wouldn't disqualify himself. I think you ought to have .that right to attempt to show why he is dis-

18

qualified.

19 MR. SNOW:

I

20

Okay. We will proceed to Paragraph III. Paragraph

21

II, we've taken out the word, qualified, and have removed

22

all the language after the word, case, in a tentative

23

basis. Now, Paragraph III. Terms of Office. N9W, can't

24

we combine this later section so that we have terms of

25

offices for both the Justices of the Supreme Court and the

PAGE 43
------------l

judges of the Court of Appeals? Put them in the same oarQ+

I
I

2

graph? All right_. 'I'8rms of Office. "The .Tustices afore-"

3

said shall hold their offices for six years, and until

4

their successors are qualified. They shall be elected by

5

the people at the same time and in the same manner as mem-

(,

bers of the General Assembly. In case of any vacancy

7

which causes an unexpired term, the same shall be filled

8

by executive appointment, and the person appointed by the

9

Governor shall hold his office until the next regular

I

I

10

I election, and until his successor for the balance of the

"z
11 I0< .I0.L.
.12 .u.. iz= ~
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~r '"

unexpired term shall have heen elected and qualified. Thel
I
I returns of such elections shall be made to the Secre~ary
of State, who shall certify the result to the Governor,

14 >I-

and commission shall issue accordingly."

':"z:

15 0) JUDGE CALHOUN:

"0<
;:)

16 .lzD..

There are some sentiments for raising that term from

.13
Z 17 a>

six to eight years.

18 MR. STUBBS:

19

That was in the 1964 version, wasn't it, Judge?

20 JUDGE CALHOUN:

21

I don't really know.

22 MR. STUBBS:

i

23

~rovided that the General Assembly shall fix the

I

24

term at not less than six years. That is a check and bal-I

25

anee.

I I
------------------------'

PAGE 44 -------------------------------------_.--
MR. R. HARRIS:

2

Now, I personally have no quarrel with an eight-year

3 II,

term, but I don't believe I'd want to Bob's route and say

II

4 I'II

the General Assembly can fix it at not less than six year

5

because then you could have a situation where the General

6

Assembly's pressured from time to time to change the term

7

of office. I just think it ought to be--

8 HR. THOMPSON:

That would give us the authority to make lifetime

10
"z
11 ~MR.
.o.....
@;~

appointments, wouldn't it? R. HARRIS:
It would. They would neither use it or abuse therefore, there's not much need to put it in.

it and
I
I
1

14 ~MS. NI LL lAMS:

'<"l

x
15 .)

What's the sentiment for the eight years?

I

":'">

16 I~II JUDGE CALHOUN:

\ i

zco

<l

17 :

Well, of course, I guess just--it takes--George T.

18

I could probably tell you better than I. It takes a certainl

19

amount of time, I'm sure, for a fellow to get acclimated I

20

and really get efficient in his operation and longer

21

terms are desirable. I think this whole thing should be

22

done--I think we should go to a non-partisan election. I I

23

I
think we should go to .--really Missouri Plan-type Where!

24

a jUdge who's once qualified and--he has to face the

I

25

people, but he doesn't run against anothe~_opponen~_:~~j

PAGE 45

put it on the ballot, "Should Judge Calhoun be retained in

2

office?" And then if he's--of course if he's defeated,

3

you go through the selection process again. If you do

4

that, then a six-year term would be all right. But this

5

is sort of a compromise between a lifetime appointment fori

6

a Federal Judge and a shorter appointment for a State

7

Judge.

8 DEAN PATTERSON:

Yes. This--I think this paragraph does raise a

10

fundamental question about the election of judges. should

..Czl
11 ;:

we consider that problem now? I was reading the article

..o....

~ 12 ~

you sent us on the Kentucky Constitution about the Judi-

~r~ ! 14 ......

cial Nomination Commission. It seems to me that we ought seriously to consider whether or not electoral process is

:J:

..15 0) Cl

the best process for the retention of judges.

::l

,

16 ~III JUDGE SMITH:

Q

Z

17 :

I'm in favor of it. I think they ought to be elected1

18 JUDGE CALHOUN:

19

I Well, I think the people ought to have some voice in

20

it certainly. But you do run into situations and we have

21

run into them in Georgia as recent as the last election

22

where a judge--a Superi~r Court Judge had opposition from

23

what I considered to be an unscrupulous and unprincipled

I

24

I
fellow who ran some of the most scurrilous newspaper ads I

I

!

25

that you ever saw. The--fortunately, the people defeat~

PAGg 46

this man and returned the judge to office. But the judge 1

2

is really at a disadvantage. If he answers this kind of

3

thing, he violates the Code of Judical Ethics. And if he

4

doesn't answer it, the people say, "\"1ell, it must be true.

5
6I
7I
8 Ii

So he really is at a disadvantaqe. So with the plan that they have in a number of states, the people have a chance to throw out a bad judge at regular intervals. And if he's a bad judge, then he should be thrown out. But it

<)

does prevent some guy vlho might decide, "I'm going to run

10

against this judge. I know I can't beat him, but I can

"z

1I ~ Ill: ...0 0..

get my name in the paper and I can get myself a lot of pub

@ r ... 12

Ill: U

z.i=..

U

'"I

licity and it will help my law practice just to get the publicity."

14 ~ JUDGE SMITH~

'"x<C{

15 .:

Marcus, that happens to everybody in public office .

Ill:
"...:3 16 az
z
17 'c"o

I don't car0 whpth~r you're a judge or somebody else. You can't keep this other fellow from running against you and

1

18

calling you all the names in the books. I know that. I'vel

19

been in all of them. I know.

20 JUDGE CALHOUN:

21

But if you're a county commissioner, you can answer

22

him back. But if you're ~ judge, you cannot answer him

D

back and abide by the Code of Judicial Ethics.

24 ,JUDGE SMITH:

25

There I s a way you can qet it answered.

PAGE 47

MS. WILLIAMS:

I

2

Well, a judge makes a lot of enemies, though, by

I

3

decisions.

I

4 JUDGE SMITH:

5

That's certainly true.

6 JUDGE CALHOUN:

7

That's certainly true.

8 MS. MORAN:

9

Well, I would like to second Dean Patterson's 8Ug-

10
I.'
..Z
11 ;:: o
"-
1M
@;i 14 ..~.... J: ..IS .) I.' :> 16 ~ 1ozM 17 ~

gestion we really seriously consider--because I think there is a broad divergence of opinion on this. The organization that I represent favors the appointment of judges by a nominating commission with, then, a voter review coming along periodically. And I think that system combines both--the best of both possible--that from the voter's point of view, voting on judges is essentially, for the most part, at the level of the Supreme Court and

18

the Court of Appeals, they don't know anything about these

19

candidates. They don't know anything about these men who

20

are dealing with decision that aren't at the level of the

21

general trial courts. I think they would be ~lad to be

22

relieved of having to vote for Supreme Court and Court of

23

Appeals Judges.

24 MR. SNO\-J:

25
LL.-

Of course that's not true at all on the Superior

,

_

PAGE 48

Court, though.

2 MS. MORAN:

3

No. That's quite a different matter.

4 MR. SNOW:
But you're quite correct as far as the appellate

courts are concerned. As far as the general knowledge of

who is sitting on the bench of the lay people, they don't

know. Let's have some other comments on that.

OVERBY:

Mr. Chairman, I have some feelings and, of course,

I'm rather enthused about the Missouri Plan. But I don't

think that we can adopt it yet. I hate it for the judges

constantly to be having to be out making the race. And

yet I think they're still answerable to the people. I

think the better situation would be--and of course I think it might move around eventually to the Missouri Plan--I

feel that we ought to extend it--and I feel this the same as the other courts. I think we ought to make the term eight years. and for the purpose of getting it out on the

--now, on the Supreme Court, I'd like to make a motion

that the term be increased from six years to eight years. 22 MR. DAVIS:

23

I second that motion.

24 MR. SNOW:

25

The motion~s been made that the term for the Supreme I

-----.--J

PAGE 49

court be increased from six to eight years. Are there

2

comments relative to that~ Justice Hill, we're glad to

3

have you with us.

4 JUSTICE HILL:

5

Thank you, Mr. Chairman.

6 MR. SNOW:

7

We're in an area that is of some concern to you.

8 DEAN" COLE :

9

Of some interest, at least. I'm a little confused

10
zCI
11 I..ro..r-.:.
e~~1 ! 14 .I.-. "":J: 15 ~ rCrI: ~ 16 .~.. Q Z 17 :";"

about where we are in the process. I missed the meeting last month. I may be out of line, but I would think that this decisibn--the Missouri Plan or a Modified Missouri Plan--is something that is definitely catching on. The t1end is toward that. Whether or not we want it in Georgia, it seems to me we need to study that problem. And I'm not sure if we're deciding now on some kind of final stance or if we're--

18 MR. SNOW:

19

No. Everything we're really doing right now is still

20

tentative. We are making some decisions which, I suppose,

21

are going to create reactions. So we--but we, as far as

22

what we are doing, of course, the next time we come back,

23

we will have in front of us, then, the changes that we

24

have made. And then additional commBnts will be taken on

25

them.

I
_ _ _ _ _ _ _ _1

DEAH COLE:

PAGE ~;o
. - - - - -...- -..----.---.------ -"l

2

Well, in that case my feeling would be that we should

3

leave this open for study.

4

MR. S'~OW:

5

Well, it may be an area where we need a subcommittee,

6

possiblY, working on this particular subject matter as to

7

Ii
whether or not we're going to the Missouri Plan or to try

8

to include it in the--there is a motion relative to, thOUg~,

9

the terms or the length of the term. So that wouldn't

10

~

Z

11 l-

.o.0..t...

~~r12

ot.
.U..

t.z=.. MR .
u

'"

14 >l'-"c :I:

15 ~

~
at
;:)

16 z'"

Q

z-c

17

ot.
III

1"1 f{

make any difference as there was a motion and terms? DROLET:
Well, I think any mise moving toward the years, It would be the

to the Missouri Plan or not. So a second that it be eight-year
increase in the term is a comproMissouri Plan. If we made it ten same.

18

'L'nat was my fc('lin'! '")f' t:hq '\')tion, 'lr. Chairman.

19 J,~ R. 1:\ EX L L Y :

20

~'lr. Cilairman, I don't have any objection, per se, on

II

an eight-year or ten-year office. But how many Judges

22

have been elected that we now have--are they ~ll appointed

23

naw--abaut r.inety percent?

24 1-1 R S NOW:

25

Over ninety percent of the judges and justices are-- I

__......J

PAGE 51
---------------------1

JUDGE SMITH:

I

2

I wasn't appointed; I ran.

I

3 MR. R. HARRIS:

I

4

Well, just addressing the length of terms, how many

5

sitting Supreme Court Justices have ever been defeated in

6

an election?

7 JUDGE SMITH:

8

Two in the history of the State.

9 MR. R. HARRIS:

10

And that was what--right in 1930?

"z
11 ~ JUDGE SMI'rH:

..o.....

@;~

One was in 1885 or 1886 and the other was about 1916 or 1917.

14 .~.. MR. THOMPSON: %

15 o!)

Don't we have a compulsory retirement age?

"'":::>

16 I~II HR. SNOW:

az
17 :

seventy.

18 MR. THOMPSON:

19

Well, would putting an eight-year term in there e1im-

20

inate people who are over sixty-two years of age from

21

being considered?

22 MR. STUBBS:

23

It's not compulsory retirement. It's that they must

24

retire at seventy unless they're incapacitated if they

25

want to get the benefit of the retirement--of the appel- I

--l

PAGE 52 ------------------------------- ---------l

late judges retirement act. They can stay on until ninety~

I

2

but they would lose the benefit of the appellate court

I

3 'I

judges retirement act.

I'

I

I4 MR. SNOW:

S II

Which we substantially increased so they would take

6 Ii

it.

I
7 MR. STUBBS:

That's right. There have been no takers thus far--I

man, no refusers. So in effect it becomes retirement age.

10 MR. THOMPSON:

"z
11 l-
...oot.
"-
@;I

I was just thinking a man, say, sixty-four years old if it was an eight-year term, he couldn't run for a full term then and comply with the retirement provision.

14 ~ MR. l'~" %
15 ~
CI ot.
;)
16 .~.. 13 Z <l
17 ~

STUBBS: That was determined in a Superior Court case that
that was incapacity. And he became eligible for retirement at age seventy, even though he did not otherwise have

18

the amount of time that would have been required. Because

19

to do otherwise, would have been unconstitutional in re-

20

stricting one's right to hold office on the basis of upper

21

age limit.

22 MR. SNOW:

23

Well, there is a motion and a second that the term of

24

office be extended from six years to eight years. Is

25

there further discussion? Those of you who favor that

PAGE 53
- - - I ------.--------~--
motion, will signi fy by raising your right hand. [A show

2

of hands.J Eleven. Those opposed? [No response.] Okay.

3 MR. 'fHOMPSON:

4

Mr. Chairman, I would like it clearly understood that

5

this doesn't foreclose the Committee's consideration of

6

non-election.

7 MR. SNOvl:

8

No. Marty, if you could, too, rearrange this para-

9

graph so that this will come at the end of the two courts.

10 CzJ
11 i=
..'o"....
@;~

So that it will be terms of--watt a minute now. The eight years would ee different as far as the Court of Appeals. This is eight years for the Court of Appeals and the Supreme Court?

14 >- JUDGE SMITH:
t;

x~

IS .)

I voted that assuming that was going to take place.

" 16

...'";;;)
~

MR.

OVERBY:

lz:I
~
17 :

That was the sense of my motion.

18 MR. SNOW:

19

Okay. I think that was the intent. Since there's no

20

objection it will be for both. Marty, at the end of the

21

Court of Appeals, if we could rearrange that paragraph so

22

that it will be terms of office of Supreme Courts Justices !

23

and Courts of Appeals Judges. Okay. Now, we are on page

24

sixty of our worksheet on Paragraph IV, Jurisdiction of

25

Supreme Court.

I
-------_---!

PAGE 54

JUDGE CALHOUN:

2

What are we doing with the rest of this? I don't

3

think we ought to leave the rest of this like it is.

4

"They shall be elected by the people at the same time and

5

in the same manner as members of the General Assembly."

6

There have been instances in this state and other states

7

where competent qualified judges have been defeated be-

8

cause of a presidential candidate--people voting a straigh

9
to
CzI 11 i=
'..o"....
@;i ! 14 .l.-. :I: 15 ol) "'";:) 16 .~.. oz 17 ~
18
19
20

ticket. Of course the General Assembly took care of that. You can't do that anymore, ~ut they still zun as Democrats and Republicans. And that should not be. Some states they've not gone to the Missouri Plan, but they've gone to separate elections so the judge runs in a non-partisan election. A judge is not competent under the Rules of Judicial Ethics to take part in politics or his party politics. He can't even support the Democratic Party. I was surprised the find that it would be a violation of judi~ial ethics for me to make a donation to Jimmy carter. So you're restricting them from being in politics, yet you're making them run as a Democrat or Republican. So

21

that certainly should be deleted.

22 MR. SNOW:

23

l\Jl riqht. It was not my intent that this particular

24

section go in as having been adopted other than the fact

25

becau~ that we did express an opinion as to six to eight

PAGE 55
-1 I think that the whole area of the Missouri Plan as well

2

as non-partisan elections of judges. Those two different !

3

sUbject matters should be more fully discussed and we've I

,

4

got legislation that has been introduced in the past by

5

many candidates that we can have brought to our attention.

6

So we're not really adoptinq--we're keeping it in there

7

other than the fact that terms of office shall now be for

8

both the Supreme Court and the Court of Appeals. And when

9

we take up the question of the Missouri Plan for this

10

section or the non-partisan elections--and we'll have

zCI

11 j:

copies of those proposals at the next election.

II<

.2..

~ 12 ~ JUDGE CALHOUN:

(@)-- ~

Okay. Before we leave Paragraph III, Mr. Chairman,

14 .~~..

I move we delete in its entirety, sentence two .

~:z:

15 .:. MS. WILLIAMS:

"II<
;;)

16 .~..

I second that .

10

Z

~

17 : MR. SNOW:

18

The motion has been made and seconded that sentence

19

two be deleted in its entirety. Are there comments rela-

20

tive to--

21 MR. THOMPSON:

22

Let me ask a question. Does that mean special elec-

23

tions just for judges?

24 JUDGE CALHOUN:

25
LL-

I No. What actually happens, you just put it on the --1

--------bottom of the ballot in a special place.

PAGE 56
You know, in

2

Georgia, we list Democrats on one side and Republicans in

the other. In Florida, they just have it at the bottom on

4

a judicial ballot. Not as Democrats or Republicans, just

5

as man to man.

6 MR. THOMPSON:

7

Well, deleting that, does that require that type of

thing? Would that require that?
II 9 JUDGE CALHOUN:

10

No, it would not. It wouldn't have in the Constitu-

Czl 11 ...
'..o"....

tion that we'd have to run in the same manner as the Gen-

12 '"

eral Assembly which is in a Democrat-Republican election.

@ r l MR. R. HARRIS:

14 ..>...-.

I wonder, Marcus, if we ought not to leave in the,

<C %
15 ~

should be elected by the people at the same time, and then

":':">

16 .~..

eliminate, in the same manner as?

III

Z

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17 : JUDGE CALHOUN:

18

That's okay.

19 MR. SNm'1:

20

So just eliminate, and in the same manner?

21 JUDGE CALHOUN:

22

Right. 1 accept that amendment.

23 I\1R. SNOW:

24

And this would leave it open for legislation that

25

would provide for non-partisan election.

PAGE 57

JUDGE CALHOUN:

2

I accept the amendment, Mr. Chairman.

3 MR. SNOW:

4

Okay. Those in favor, say aye. [A chorus of ayes.]

5

Those opposed, say no. [No response.]

6 MR. H. HARRIS:

7

Mr. Chairman, before we get off this number, I think

8

one of the main criticisms of the existing Constituion, of

9

course, is verbage. I think that the last sentence the reo

10 Czl
11 ;::
'o..."....
@;~

I would imagine that similar sentences are found in numerous places throughout the Constitution. The Secretary of state has certain duties. I wonder if it's necessary that that be thrown in at the tail end of that paragraph?

14

...>-
I-
:r

JUDGE

CALHOUN:

15 .:.
Cor:l

Just say somewhere that he should certify all elec-

;;)

16 .~..
az

tions .

17 :MR. H. HARRIS:

18

II
Right. And not say for each constitutional office or

19

each judge or--we could probably eliminate that sentence i1

20

numerous places in the Constitution.

21 MR. SNOW:

22

I think that's--that's good. Marty, in working with

23

the Elective Article--

24 MR. HODGKINS:

25

I was just going to say that what they _re_co_m_m_en_de_d_i_s ...JII

just a final phrase.

PAGE 58

,...

I don't have the language here with

2

me. But something to the effect that all returns shall be

3

provided to the Secretary of State.

4 MR. SNOW:

5

All right. Now, we find ourselves in this posture,

6

though. Now, if, say, that particular Article were de-

7

feated in the November election. And the Judicial Articlel

8

passed and we didn't have a provision in there, is there '

9

something in the Elective Article now that would take care

10

of that or cover it at the present? [Brief pause.] Let'sl

Cl :It
II ~
e ; ;'o.."....

just direct that this be looked at and a provision be found either in this Article, or if a provision is in the present Article that would cover it. otherwise, we do

! 14 .~..

not need it in here.

<C :It

15 ~ MR. H. HARRIS:

":'"I
16 .~..

Just as a matter of consistency, under Section X, The

Q

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17 :

Attorney General, it talks about his election but it

18

doesn't provide that sentence. And yet--

19 MR. STUBBS:

20

Well, that's provided, though, in the Executive

21

Article, for his election. The State House officers are

22

covered in there.

23 MR. SNOW:

24

Judge, do you have any comments on--

25 JUSTICE HILL:

PAGE 5~)
~-----~--l
-au may have noticed from time to time--if this ha:, I

2

cady been covered, please stop me and I ' l l shut up real

3

quick. You may have noti ced frol;~ t;~!ae to time, nn the

4

ballot, that you have voted for the s~me judge twice.

5

This is because of the language which says, in the case of

6

a vacancy, the same shall be filled by Fxecutive appoint-

7

ment. The person appointed by the Governor shall hold hisl

8
9
10
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11 i= II: .0A.-.
12 II:
@ r .U.. j: .z.. ~ 14 .>..'<"II :I: 15 oll Cl ~ 16 .Iz.D. I:) Z <II 17 II: ID

office until the next regular election. All right. Therer
::::~s~h::r:::r:h:s':S:a:::C:e::se::h::eO:n:::b:::~:l:::Im
and the governor makes an appointment, that appointment is
until the next regular election, which is the first Tuesda
in November. But the term of the incumbent was until
January 1. So this man, then, who's been appointed by thel
I Governor--Judge Smith is a perfect example--runs for one I
term from November 2nd or 3rd or 4th until January 1st.
I And then, pays another qualifying fee and runs for a--pre-

18

sently a six-year term, January 1st of 19-whatnot for six

19

years. And, frankly, I think it's confusing to the voters

20

to have the same name on there twice. I think it's un-

21

necessary and I think, although it add some language, if

22

it were--if the language were added, and shall hold his

23

office until December 3~t or January 1st following the

24

next regular election.

25 JUDGE CALHOUN:

PAGE 60

Why not, till the expiration of his term?

2 JUSTICE HILL:

3

That conceivably could do it, yes.

4 MR. R. HARRIS:

5

Well, if you could do it that way. it could bu a iive

6

year appointment.

7 '1 ,JUDGE CALHOUN:

II

8 I'

Well, that's true.

9 I 1-1R. R. HARRIS:

10
..,
z
11 j:
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12 ~
@)r !MR.

You'd have to do it like Justice Hill said, January 1st next after the next General Election thing like that.
SNOW,

till or some-

14 !........

Until the first day of January following the next

%

15 ~

regular election?

"II:
~

16 I~II JUDGE CALHOUN:

.oz.

17 :

Right.

18 MR. SNOW:

19

Is there any objection to that?

20 JUDGE SMIT":

21

Until January 1st following the--

22 MR. SNOW:

23

--next regular election.

24 JUDGE SHITH:

25

\HII that do it?

.

I
- - . - JI

PAGE 61

JUSTICE HILL:

2

I believe so.

3 MR. OVERBY:

4

Read that language again, Wayne.

5 MR. SNOW:

6

Until the first day of January following the next

7

regular election.

8 MR. OVERBY:

9

I believe that will do it.

10 DEAN COLE:

As long as we don't change the election date in the next fifty years. SNOW:

That's not very likely. Okay. Now, are there any other language changes in Paragraph III? Let me remind

you, too, that we will have this matter of the Missouri

Plan as well as--concerning this particular section--as

18

well as the selection process for judges. All right. Is

19

there anything else in Paragraph III? We go to Paragraph

20

IV, Juris--Judge Hill, let me explain. What we are

21

actually doing is going through different sections to see

22

where we've got different problems or difficulties and

23

then, where we do have, we will be coming back to them.

24

But we are taking them as we come to them at this time. I

25

2
3 \1 II
4 5
6
7
8 9
10
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@ r12 .u'.". j: v~ '" 14 t>-'" :J: 15 ,:) ":'":l ... 16 zIII 0z 17 'a"l 18
19
20
21
22 23 24
25

meeting.

PAGE 62
---l
I
I

Paragraph IV, Jurisdiction of Supreme Court. "'The
I

Supreme Court shall have no original jurisdiction but Shalt
I

be a court alone for the trial and correction of errors ofl
I
law from the superior courts and the city courts of Atlant1

I

and Savannah, as existed on August 16, 1916, and such

I

other"--now that's very lengthy. We get into the meat of

it, r think, over here on page sixty-one. 1\nd what I'm

saying is it's lengthy because we've got business in h2re

about Atlanta and Savannah. Now, we can surely come up

with language where we don't have to include all these

\

gen~ city courts and things of that sort. We can make some

eral references. But actually, the jurisdiction as it now

is contained in--which is pertient to the Supreme Court,

I think, starts on page sixty-one where we say ... "the Con-

stitution of the State of Georgia or of the United States,

or of treaties between the United States and foreign

governments; in all cases in which the constitutionality

of any law of the state of Georgia or of the .United States

is drawn in question; and, until otherwise provided by law,

in all cases respecting title to land; in all equity cases;

in all cases which involve the validity of"--now, just

getting with that one phrase right there, "until otherwise

provide1 by law," there have been decisions or it's been

construed that that r~ally doesn't mean anything. So I

I

J

2

3

4

5

6

7

8

9

10

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16

III
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13

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18

19

20

21

22

23

24

25
LL

PAGE 63

just wanted to call that to the attention of those of you I

who might wonder if these other things could be changed ati

any t i 1'1 e . C; 0 1 II i n a 11 cas e s whi r h i 11 V 0 ] v e t h e va 1 i d i tv l) f I
Of i')r the construction of wills; i'1 all cases of convict1.on

a capital felony; in all habeas corpus cases; in all cases

involving extraordinary remedies; in all divorce and ali-

mony cases, and in all cases certified to it by the Court

of hppeals for its determination. It shall also be compe-

tent for the Supreme Court to require by certiorari or by

otherwise any casa to be certifi~d to the Supreme Court

frOM the Court of A~peals for review and determination

with the same power and authority as if the case had been

carried by write of error to the Supreme Court. Any case

carried to the Supreme Court or to the Court of Appeals,

which belongs to the class of which the other court has

iurisdiction, shall, until otherwise provided by law, be

transferred to the other court under such rules as tlic

Supreme Court may prescribe, and the cases so transferred

shall be heard and determined by the court which has jurisdiction thereof. The General Assembly may provide for

carrying cases or certain classes of cases to the Supreme
I
Court and the Court of Appeals from the trial courts otheri
wise than by write or error, and may prescribe conditions

as to the viewed by

right of a party litigant to have his case the Supreme Court or Court of A~peals." I

I re-
II
have
-J

PAGE 64

serious questions as to whether or not that has not also

2

been con~trued as our not having the power in the General

3

Assembly to do that. "The Supreme Court shall also have

4

jurisdiction of and shall decide cases transferred to it

5

by the Court of Appeals because of an equal division be-.

6

tween L~le judges of that Court when sitting as a body for

7

the determination of casas."

8

Now, I'm sure they don't want to get rid of any of

9

these. The question is, how many more things are we

10

going to give to the Supreme Court? Is that right, Judge?

zCl

11 ;:: JUSTICE HILL:

'o.."....

@;~

I think the basic premise may be a hundred and eighty degrees in the other direction, Mr. Chairman.

14 ..)..0.. MR. S N m-v :

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15 ol>

All right, folks. Let's--

"'";:)

16 ~MR. R. HARRIS:

Q z

17 ~

How did you hold that that didn't mean what it said,

18

Mr. Hill?

19 JUSTICE HILL:

W

We did not.

21 JUDGE CALHOUN:

n

They did?

23 MR. SNOW:

M

You weren't on the bench at that time.

25 JUSTICE HILL:

lL-

J

PAGE 65

If we re having reference to the most recent opinion

2

regarding armed robbery, kidnapping and rape, at the last

session the General Assembly enacted legislation saying

4

that those cases involving armed robbery, kidnapping and

5

rape would go to the Court of Appeals. And those cases

6

involving state revenue, constitutional questions of muni-

7

cipal ordinances and election contests would come to the

8

Supreme Court directly. I think th&t a fair reading of

9

this provision does not authorize legislation which adds

10
Czl 11 ..
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@);~i ..! 14 .z.. 15 011 Cl II< ::I 16 ~ 1M Q Z 17 ::
18

to the jurisdiction of the Supreme Court. And that is to say, that the legislation adding municipal constitutional questions, election contests and State revenue could not circumvent, under the Constitution, the Court of Appeals. The Collins case so held. Then the question or severability arose on that legislation. Because it was one bill, the question of whether or not the other sentence of the bill was constitutional. The Court did not reach that question because of the Cofer decision by the United State

19

Supreme Court. It was unnecessary, really to reach the

20

question of severability because it then appeared that

21

those cases were not capital felonies any longer under

22

Georgia law.

n MR. R. HARRIS:

24

So, it's possible that the phrase, "and until other-

25

wise provided by law," could mean something?

PAGE 66

JUSTICE HILL:

2

Very definitely.

3 JUDGE SMITH:

4

What could it mean?

S JUDGE CALHOUN:

6

It could mean they could transfer to you--to the

7

Court of Appeals .. "repecting title to land, equity, con-

8

struction of wills" . and so forth.

9 JUDGE SMITH:

10

Well, I think it ought to be both ways then.

i~
11 JUSTICE HILL:

@r I12 =u

Well, you'd have to take that to the General Assembly

JUDGE SMITH,

I
14 ~
i
15 :" ::l
16 ~ MR. oz
17 ~

That's what I said. I think the General Assembly ought to have the right to do it both ways. R. HARRIS:
Well, of course right here, I guess, is where we sort

18

of are going to get into a little different--

19 MR. SNOW:

20

We've got problems with this section. Robin, I want

21

you to be Chairman of a subcommittee. You don't practice

22

law anymore so you don't have to go before either court.

23

I think you'd be the logical person to do it. Well, I'll

24

discuss with you, too, as to who will serve on that sub--

2S

we'll appoint the members of it before the end of this

PAGE 67

meeting today. So I see no reason for us to go any fur-

2

ther into the jurisdiction unless there are any particu-

3

lar comments that you would like to address to Robin and

4

to those of you who will be on the subcommittee.

5 MR. R. HARRIS:

6

Mr. Snow, before you make it final. I'm prejudiced

7

in this area. And I'm not sure that would be--I'm not

8

sure I would be an appropriate person to be chairman. I

9

do have strong feelings. I feel like the Supreme Court

10
"z
II lll< .o..
@;I1M

really--I believe it ought to be a court that you can reach only by writ except in certain cases such as capital felony in which the death penalty is imposed. And I just --I just don't believe I would be the proper person to be

l 14 l;;

chairman. I think it ought to be chaf':J\~.,ed by someone who

:~r

15 ~

hasn't arrived at a strong feeling on the subject.

"ll<
::l

16 I~D MR. SNOH:

oz

~

17 ~

You personally prefer not, then, to--

18 MR. R. HARRIS:

19

I think anything that the Committee came back with

20

would be suspect based on my own prejudices.

21 MR. SNOW;

22

1\11 right. I think probably, 'then, this is an area

23

where--let's do it this way. This is a good place where

24

we can probably get some good input from our law schools.

25

If the three deans of the law schools will serve as a sub-

,

-'

PAGE 68

committee on this subject matter to elect one of your nUM-

ber as chairman of it and seek to have some report back

to us relative to the jurisdiction of the two courts for

the consumption of the entire Committ8e at the--possibly

at the next meeting or whenever you can get the repnrt

back. This is, I would say, the most controverisal area

7

that we will bo taking up in the Judicial Articlo. Okay.

8

Is that agree~ble with you folks to help us in this re-

9

spect?

10 DEAN PArTERSON:

"z

\1 ~
'.oa"...

[Indicating affirmative response.]

~t~~ r~12 .'~".. DEAN PHILLIPS: [Indicating affirmative response.]

14 ~ JUDGE SMITlI: :z:

IS ~
"'=">

Is this committee going to hear from other people or

16 ~c:

are they just going to decide it themselves?

Z

<l

17 ::;!'lR. SNOW:

18

We will be hearing from others--you mean, as to--

19 JUDGE SMITH:

20

That special committee?

21 MR. SNOW:

22

I would think that they would appreciate any input

\

23 24 25

SUbcom~J that they can have from any of you.

I

DEAN PATTERSON:

All the help we can get and I would view the

PAGE 69

mittee as simply bringing a report back to the full Com-

2

mittee for the full Committee to work with. I view this

3

as taking the paragrap~ on jurisdiction of the Supreme

4

Court; doing some work on it so the Committee can better

5

understand what's involved.

6 MR. SNOW:

7

You will have the previous recommendations that have

8

been made relative to this section. You also have the

9

recommendations that have been presented to us today by

10
..,

the Court of Appeals and I'm sure that the Supreme Court

Z

II I-

will be having some recommendations.

o0<

lL

12 ~ : DEA~.l PATTERSON:

@r!

I would not view the subcommittee as making recorn-

... 14 >I-
:z:
15 ..,

mendations to the Committee, but merely a report setting out all the options.

0<

:::>

16 .~.. JUDGE SMITH:

Q

Z

17 ~

You're not going to come back and recommend what you

think this Committee should adopt?

19 DEAN PATTERSON:

20

NO.

21 JUDGE SMITH:

22

You're not going to be like a legislative subcommit-

23

tee?

M DEAN PATTERSON:

25
LL

No. I don't think that would be for us to do -that.
._ _~---------------------------.---.--.------ _ - ..__.....I

PAGE 70

JUI.JGE SHITll:

2

Just wanted to get th0 ground rules, Mr. Chairman.

I 3 ME. S NOv\! ;

4 I:

We jus~ want good language.

s IMR. OVERBY:

6

Mr. Chairman, who's re~resentirs Mercer now since Ed

Wilson resigned?

8

I
IDEAN COLE:

9 II

1 am. John Cole.

10 MR. SNOIj:

All righL Let's see now. Would this, Cases, How

Disposed of--w0uld that come under the purview of that sub

COintni.ttee too? Well, this ~ncludes both courts here, 50 let's just 'jL' on throu('Y, t;l'i,c; now. This 1S Paragraph V

How Dispo5er~ of. "The S'.lpreme Court :Ind the Court of
i App~als shall dispose ot ev~ry case at the term Ear which I

18

it, is entere,j on the court's ilocket for ltearin'J, as pro'-

19

at'lI videil by 1'al.dyraph VIII ..,\': this i\ri:icle dnd Sectiol!, or

20

the next tenn. If th,: ]llaintiff ir, error shull not be prei

21

I pal-ec, l'U pcc.:;pcute the case "c thE: term for u1\ich i t is so

,,;nt-ered fo;- 'lPariner, un]'~:33 prl'venJ;cd 'Iy Drovirjcnt.i,'l'l

!

I
I
I cause, i t _;!l,d1 be stric':"li [rom the d:)cke', In(l U1C jll(Lr-

24

t ,,' men t be low"",,, 11 s ta nd a ff ',mo 'J. No ,H j t

error s ha 11. I

25

b e d i s J'i iss e d b 0 C '1 use I,) f de 1 i:'c y i n t ran S Tl,i 5 '3 i (: n ,) f t 11 t:l b i I I I

____-....---J

PAGE 71 . --------------- ---_. --_.__ ._--- -- "!
of exceptions and the copy of the ~ecord, or either of

2

them, resulting from the default of the clerk or other

3

cause, unless it shall appear that the plaintiff in error

4

or his counsel caused such delay. Noth~ng herei~ shall be

5

construed to excuse the clerk fa! any omission of duty or

6

to relieve him of any liability resulting therefoe{r~lm'vV.i"

7

Don't we have a lot of statutory law in this section

8

or--

9 JUDGE CALHOUN:

10

I think so. I think we can eliminate the whole

"z
11 l-
..Io..<..

section and just say that--dispose of and make rule:> as

12 ~
@r;

the disposition of the Cdses. .to make their own rules

The ~ourts themselves ou9ht\
I

14 .~:z..: MR. STUBBS:

i
i I

15 .:.
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16 .~..

'fhe original was in there to make sure they made deicisions, if you

I
I

I:l
Z

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17 : JUDGE SrlITH:

18

Let's don't delete that says we've got to get them

(1:"('

19

out by the term in which they're heard ~ the next term.

20

Let's leave that in there.

21 MR. SNOW:

22

That would be the entire first sentence.

23 JUDGE SMITH:

24

Well, you might want to cut it down some, Mr. Chair-

25

man, but I certainly want to say that Hot later than the ;

_______...1

rr----"--"-------- -------next texm"in which they're heard.

PAGE 72
Let's keep that in

there. Way back yonder we experienced the problems

3

there, you know, where they didn't have any provision and

4

they didn't get them out. They just lay there and lay

5

there and lay there. Let's have a deadline on thew.

II

That's my thinking. We don't have to have eleven months,

7I

but I think we need a deadline.

R III .JUnGE CAL!10UN:

q \1

Or they stand affirmed.

10 JUDGE SMITH:

.."z
11 ~

That's right .

..o....

12 ~ MR. HIGHT:

@r~

You know, there's been a lot of discussion in the

14 >~ '%'""
.. 15 .:I
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16 ~... oz
17 ~'"

past in relation to whether the couet had to actually write an opinion in relation to a particular case. And this might be the appropriate sect.ion to either make sure they could handle that particular provision by not having

18

to write numerous opinions over and over again on the same

19

point and perhaps cutting down some on their workload in

20

that particular fashion.

21 JUDGE SMITH:

22

I don't know whether this is the place of now, but I

23

wanted to get into that somewhere along this line. Be-

24

cause there are just so many decisions that come up there

25

that, you know, just say affirmed or denied and let it go. I

___________ ---.J

PAGE 73
---------------------l

Becuase it's just the same thing being rehashed over and I
I

2

i

over again. Workmen's comp laws--we're rehashing the

I

I

3

same stuff we've been rehashing.

4 MR. R. HARRIS:

5

Custody cases.

6 JUDGE SIUTH:

7

I Custody cases. Many of the criminal cases, particu-

8

larly misdemeanor appeals. It's just over and over again.1

9 MR. R. HARRIS:

I

I

10

The Supreme Court writes six pages of facts and then

~

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11 ~
.2.. 12 ~

says the lower court didn't abuse its discretion and it's affirmed.

~ ~ ..-

JUDGE SMITH,

14 !...

That's right .

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:r

.. 15 ol) MR. SNOW; CI

::>

... 16

III
Z

We could--

Q

Z

17 : MR. R. HARRIS:

18

I think this would be an appropriate place to put it.

19 MR. SNOW:

20

Well, What about, at the end or at the next term and

21

then say the Supreme Court and the Court of Appeals shall

22

establish the rules for--of procedure and dispostion of

23

cases"

24 JUDOE SMITH,

!

25

Wo u 1 d t hat co va r i t s 0 far as wr i tin g an. 0 p ~~_~~~~~~J

.,:,;;.".

PAGE 74

concerned?

2 ,JUSTICE HILL:

3\

Pa",agraph VII down there, Mr. Chairman, might alreildy

"

4

.. prOVl L~.e basically what you're looking for in that regard.

5

~m. STUBBS:

If you knock out some of the other language. AS long

as you tie it to a writ of error or some particular type

of proceeding, you inhibit the court pven in its rule

I . I
l)

making.

10

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z

11 l-

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12 I<

~

@ri

S NO\'I :
Well) with that. on the top

l~t's establish so~ething here before we pr.ocee Is there any objection to deleting the languag
of ~age sixty-two beginning with the words,

... 14 >Ix~
15 .0.),

"If the pL!intiff in error," and the rt..'st of that para'Jrap' , retainlnq the first sentence? Hansel, do you see anything

I< :::l
16 ~... Q
Z
~

there?

17 :MR. H. HARRIS:

18

No. I'~ delete the whole thing. You could even sim-

19

plify the first sentence and just say, no later than the

20

next term of court, period.

21 MR. SNOW:

22

That's the term for which it is entered on the

court's docket for hearina or no later than the next term?

24 MI'. H. HARRIS:

25

th~n Just say, shall he decided no later

the next tcrJ

----------- - ---------

___. .

..

.

....J

PAGE 75

after the ter~ it's entered.

2 HR. DROLE'T;

3

C) r as provide~ in Paragraph VIII of thie ~rticle--

4

section.

5 JUDGE SMITH:

6

You've ~ot to use that, when it's entered O~ t~e

7

docket as a base to work from.

8 MR. SNOW:

9

If we can qet cia of it other than the first sentencet

10

we've made a lot of progress as far as verbage.

I

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.. II ~ MR. R. HAHRIS: o...

!

~@~Iat
~ 14!
..~
'"

Let me ask you something, George T. Looking at Paragraph VI, which on the surface appears to be duplicatinn, can a case be argued or is every case argued at the

%

15 ~
Cl

term on which it's entered?

~
16 C~D JUDGE Sf-11TH:

..CzI

17 :

Unless they've got some excuse for providential

18

cause or something like that. The court has that--nnly

19

the court can do that.

20 MR. R. HARRIS:

21

So if Paragraph VI was left in, then it conceivably--

22

it would be withheld for--until the end of the third term

23

following the docketing. Is that--

24 JUDGE SMITH:

25

No. The next term after it's argued.

_ _ _ _ _- - lI

JUDGE CALHOUN:

PAGE 76
---~--~----_._-----------~-,
i

But if it's argued at the second term, this would be

3

the third term.

4 MR. R. HARRIS:

5

I know. If it's argued at the second term, then

6

under VI, it wouldn't have to be decided until the third

7

term.

8 ,JUDGE SMI'i'H:

9

That's t.rue.

10 MR.
"z
11 at-:
..o....
12 !':"!
@rl

R. HAP-RIS: All I'm saying is if we ~ant the court to rule within
two--within the time frame of no later than the term after the case is docketed, you would have to eliminate VI alto-

14 'x>t.".--.

gether.

15 0) ,ll: DGE S~lI TIl :

"a:
:>

16 .~.. .oz..

The reason that was in there, you see, because right

17 :

above that, it said, "If the plaintiff In error shall not

18

be prepared to prosecute the case at the term for which it

19

is so entered for hearing," we're striking that. But the

20

way that was, that meant that you had to get it the term

21

it was enetered. So you could never continue forward the

22

second term. Well, you could the third time if there was

23

providential cause and continued it one term for a hearing

24

It could possibly go three terms. yes.

2S MR. R. HARRIS:

PAGE 77 ..,...,-------------------------------------
Well, should it be provided that it could, I guess,

2

is the next question.

3 MR. H. HARIUS:

4

Judge Smith, wouldn't the only circumstance under

5

which it would go three terms be due to the appellant~s

6

action of delaying it?

7 JUDGE SMITH:

8

Yes. It has to be a providential cause. He couldn't

9

can takel just willingly do it. It would have to be a--you

10

it from me, it has to be a darn good cause.or he doesn't i

..CzJ
11 i=
0.l.L.
.12 .u.. .iz=..
@ r U...

get it continued. Nothing short of dying by one or the other of them can you get it continued hardly, but--that's a pretty good reason to continue it, but that's almost whal

14 t.>o.-. ~:r
..15 0:> CJ
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16 Iz..I.I
..Q
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17 lIll

you have to do. JUDGE CALHOUN:
You have a conflict in the though, don't you?

two provisions here,

18 JUDGE SMITH:

19

You do. You really do.

20 MR. R. HARRIS:

21

You have one paragraph saying you have to do it in

22

this time frame and the next paragraph saying you can do

23

in a different time frame.

24 JUDGE SMITH:

25
lL

That's right. That's exactly right.

, - - . . Ji

/viR. OVERBY:

PAGE 78
------------------------

2

Mr. Chairman, why couldn't we strike Paragraph VI?

3 II MR. SNOW: II

4 II

Is that your motion 'f

S ['IR. ClVERBY:

6

I move that we strike it.

7 HR. DROLET:

I

I

8

I second it.

9 MR.
10
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11 ..
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p~
~~r~- ~ .14 >MR. '<:"sI:I ..15 ~ "::> 16 ~... oz <{ 17 ~

SNO~v:

I

vi A motion has been moved and seconded that Paragraph

I

be struck. If there's no objection, it is struck. Now, \
\

we can get back to this business of writing decisions.

I

Now, is there--

R. HARRIS:

Now, in Paragraph VII--the language of Paragraph VII

is already included in the paragraph on page 3E that was

earlier adopted. So Paragraph VIlis no longer needed,

18

here. "Th8 Court sh~ll hav~ power to hear and determine

19

cases when sitting as a body under such regulations as may

20

be prescribed by its'rules." Which is exactly the same

21

thing except it leaves out the word, Supreme.

22 JUDGE SMITH:

23

Yes. No reason to have it.

24 MR. SNOH:

25

Okay. We can delete that.

PAGE 79

MR. R. HARRIS:

2

That doesn't do away with the question, but it does

3

away with the language.

4 MR. SNO~v:

5

Is there objection to deleting it since it's already

6

in Paragraph I? Now, let's make sure and check just that

7

this same language is in the Court of Appeals also.

8

Marty, will you make a note of that? Anything further?

9

Judge HilJ asked a question relative to, "as provided by

10

Paragraph VIrI of this Article and Section.

zCJ

11 .;,: .JUDGE SllITH:

.oA..,..

@ r12 uu:: ;: z ~ MR. '"

SNO\l'l:

I

don't

see any

application

to

it.

... 14 >I:r

I've been redding it and tryl1g to find the (;orrelil

15 .:I
.C,J

tion, but-

:;)

16 .~.. ,JUDGE CALHOL ~J ;

oz

17 ::

I

.i t-

18 .JUDGE Sl"'lITE:

19

You could strike it as far as Faragraph VIII of this

20

Article and Section. I don't see where that has any--any

21

application to it anywhere.

22 DEAN PHILLIPS:

23

I~ would appear that it'~ duplic~tcd on page slxty-

24

25

Gn th0 docket of the Gext term; stand fnT h2arinq.

_ _ _ _ _ _ _ _-.1

PAGE i10

ME. :::NOW:

2

Well, let's delete it because we're fixing to delete

.3 ,.

n: a s t ')." t: nat, t 0 C', are n ' t \" e ?

;1

4 lHI. r:. H A!' P T S :

5

Tt's po.;~sible.

6

Mn. SN0\'l:

7

n,ny objection to deleting, "as provided by Paragraph

8

VIII of this ~rticle and Section"? [No response.]

9

'lone,

l1.

. 1S

deleted.

All right.

Now, there is no reason

10

to read ~ll of this relative to Paragr~ph VIII. But, now,

"z

11 ..

the --

.'o~ .".

12 ~ JUDGE SMITH:

@r!

I nrrhe terms of the Judqes of the Court of A~peals shal~

.14 )0'<"l( :r: 15 .:
" 16 :~'>" 1-1;;:. oz <l( 17 :::

be for six years and until their succ~s~ors are qUalified.~

Are you guing to take care of that in one joint--

I

SNON:

We're taking care of that in the other one.

18 f;lR.. STUBBS:

19

Wayne, we've got a number of ?rovisions that are

~o

applicable to both courts. We set out in Paragraph I, the

21

Supreme Court; in Paragraph II, the Court of Appeals and

22

then all the common provisions. And it might straighten

23

out a mishmash we've get n~w. Well, jurisdiction would

24

have to be provided for. But I mean, as a matter of clari

25

ficatio~wken we get the next batch of papers to look at.

MR. SNOW:

--P-A--G--E -81----l

2

So actually all of that down through the Supreme

3

Court has already been taken care of. Then we set into

4

the question there of jurisdiction. The jurisdiction is

5

going to be--there will be several recommendations made byi

6

I the subcommittee that is dealing with that. Now, we get

7

on into some other language on page sixty-three, down at--

8

how about these--this area here on certifying questions

9

and that will be a jurisdictional matter, too.

10 DEAN COLE:

"z
11 ~
.."o.."..

The last few sentences goes to the proviso when it is

12 ~""

struck, that is, when something goes on the docket.

@ r tRO SNOW:

14 .>.-.

All right. That starts with the word, "all writs of

':<"zC:

is .~.'

15 01)

error in the Supreme Court 'G.f- the Court of Appeals."

""~"

16 ~UDGE SMITH:

oz

<C

17 :

Can't all that he taken care of by rules of the court

18

or by statutory?

19 R. R. HARRIS:

20

It ought to be.

21 R. SNOtv:

22

Okay. What kind of language shall we put in there?

23

Can we--Marty, will you get us some language on that?

I

24 .R. HODGKINS:

25

..J You're saying where it begins, "All writs of error.. "

PAGE 82

MR. SNOI'J:

2

Yes. That: will be--the language will be that, "The

3 II

Supreme Court and the Court of Appeals of Georgia shall

I'

4I

promulgate their rules as to procedure, period."

I
.5 ciUDGE SMITH:

6

For the receiving and filing of appeals. Or prOCCduJ

,

i

7

That's all right.

,I

8 MR. SNOW:

I
I

9

I
That would be one of those areas where we'll have a i

I

10
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11 ~
'..o"....
12 ~

I new paragraph after the initial, Supreme Court and Court

of APP8als. governing both. Is there any objection to

I

that?

@ r i DEAN COLE:

14 )-
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X
IS ~
'":">
16 .~.. D Z <II
17 ~

Is that confused with that 3E sentence we talked about, "The Court shall have power to hear and determine cases when sitting as a body under such regulations as ma- be prescribed by its regulations." You don't think

18

that covers it in enough detail this rulemaking? TBrief

19

pause. ] r would think we could do it all in one sentence

20

giving that power.

21 MR. SNOW:

22

Wha t do you think?

23 JUSTICE HILL:

24

I would think probably so. But t:hat particular

2S

language does not include the Court of Appeals. I beliaveJ

PAGI~ 83
So that you would need comparable language a~-":~~-~-~-::~~~l

2

of Appeals at an appropriate point.

I

I

3 DEAN COLE:

I

I

4

The Court of Appeals would be making their own rUles?1

I

5

Is that not a change from--no. I'm sorry. So thi s would I

6

spell out both Supreme Court and Court of Appeals more

I

7

specifically what they can do.

8 MR. SNOW:

9

Under their own rules. Now, when we get into the

10
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11 i=
o......
12 .. ~
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areas where you folks are going to come back to us with the jurisdiction, then of course there will be--you will have to spell out something there as to powers of the different courts.

14 .>..... DEAN PHILLIPS:

<C

It

..15 o:l
"::>

What we're moving toward. Mr. Chairman, is almost

16 .~..

exactly the same hierarchy breakdown as in the Federal

Q

Z

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17 :

rules because you first started off with the Rules of

18

Civil Procedure. Then you had the Supreme Court rules and

19

then you inserted, lastly really, in the sequence, the

20

appellate rules. And this is exactly wh~t we're talking

21

about right here. He've got our Civil Pr (<-.

22

'Jot t~he Supreme Court rules. W0 ' re ~eally talklng About

23

three separate rulGs.

24 MR. SNOH:

25

Are there further comments7

PAGE b4

MR. STUBBS:

2

One comment that came up in the committee relati~e

3 Ii

to recommendations to the JUdicial Council was to have

I

I

4

some element in the Judicial Branch which would particiPCltt

S

in the rulemaking power of each court. One, to assumre

II

6

uniformity and, two, to provide some sort of consistency. 1

7

Now, how far that recommendation or view is going to go

I,

I

8 II

and whether or not the Supreme Court would admit of any-

9 ,I

body having any standing to participate in their rulemak-

10
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11 ~ Ill. ...0 Do.
12 Ill.
9 r !..t. t= ~ ~
14 > ~ 'x<"l
15 o!) MR.
.".Ill.
:>
16 .z.. D Z <I
17 Ill. lD

ing or the Court of appeals or any other court. But the idea was that all rules of procedure throughout the judicial system ought to have--be consistent with each other to the extent that the nature of the court and its jurisdiction permitted. I don't know quite how--
R. HARRIS:
You're hitting the situation that the DeKalb Superior court, the Cobb Superior Court, the Clayton Superior Court

18

and the Fulton Superior Court all have different rules for

19

their courts.

20 MR. STUBBS:

21

That's exactly right.

22 MR. STUBBS:

Even different judges within the. same court have Jjf-

24

ferent rules.

2S JUSTICE HILL:

PAGE 85 --I

May I supplement that?

I once did some work on the

I
I

!

2

appellate court rules mamy years ago and found that the I

\

3

i margin at the top of the page in the court of Appeals had

i

4

to be an inch and a quarter. And the margin in the supremr

5

Court had to be an inch and a half. Now, there's no rea- Ii

6

son for that kind of difference. Moreover, I think that I

7

there are--part of the problems that the appellate courts

8

have and that the lawyers have, is that the laws and rules

9

applicable to the appellate courts are in different places

10
I.'l Z
11 j:
"..0.."..
@ r12 !.".:".! .zj.:. U '" 14 >~ '" :r 15 ~ ..I.'l "";;) 16 .z.. Q Z 17 "CD"
18

One, part of the rules are in Title 8l--some of them.

I

~nd Many of them are in Title 6 of the Code on appeal.
others are in Ti tIe 24, the Rules of the Court. And' 1

I
1

think this is why sometimes a lawyer will be complying wit

I part of the laws and rules and not another part, because

I he simply doesn't realize that there are other areas that I I

he needs to look to. My comment basically is that uni-

I

formity amongst the courts, I think, is desirable and uni-

formity of location is also, I think, highly des1rable.

19 MS. MORAN:

20

May I please request that we also make it very clear

21

that the courts do determine their own rules and procedure.

22

So that, again, the average citizen picking up the Consti-

23

tution knows that the courts determine their procedural

24

rules and not the Governor or the General Assembly. I

25

think that language should be especially clear.

PAGE 86

HR. SNm'l:

2

Okay.

II 3 ,rUDGE SMITH:

4.

Mr. Chairman, how much of this--this number VIII arc

5

we striking now?

6

MR. ShIO~'l:

7I

Number VIII, we have started--

I

I 8 JUDGE SMITH:

9 II

I know the first page, "The terms of the Judges of

10
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II ~
'o.."....
12 ~ MR.
@r~

the Court of Appeals shall be for six years and until their successors are qualified." That's stricken.
SNOW:
Okay. Now, we just avoid any discussion of the jur-

14 >.~.-. %
.. 15 ~
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16 ~
:z::
17 ::ri

isdiction altogether. Then we ",'ent down to the bcttom of the page-;--page sixty-three.--beginning ",ith, "All writs of error ..... and have struck the rest of that--af that paragraph.

18 MR. DROLET:

19

Including the portion on page sixty-four?

20 JUDGE SMITH:

21

That portion on sixty-four, "The laws relating to the

22

Supreme Court as to qualifications and salaries of Judges,'

23

I don't~why the paragraph couldn't say, the qualifications

24

of the judges of the Supreme Court and the Court of APpealj

25

I shall be as follows, and just cover both of them. Because

--.J

they are the same.

2 MR. SNOW;

3

Yes. Yes, that would--

4 gUDGE SMITH;

PAGE 87 -------------------------,
I
I
i
I
I

5

That phrase, "so far as they can be made to apply,"

6

what do you mean by that?

7 DEAN COLE:

i

8

We don't need all that language in there.

II

9 JUDGE SMI'fH:

I

10

That's right. We may need that, "The decisjons of the l

zC)

11 ...
.'o0".-.

Supreme Court shall h\ind the Court of Appeals as precede-

~ .- i ~

12 ~

cents." We may need that.

MR. R. HARRIS,

14 !.....

That, and the last paragraph possibly .

<l %

15 .: JUDGE SI'!2.'I'H:

C)
'";:) 16 .~..
Q

Yes . And that might be the place where you ~ie in

Z <l
17 :

there whether or not you're going to have a majority of

18

the court, per se, to render a rlecision. He 'jot-_ in that

19

argument before you got here, Harold, about nowhere in the

20

Constitution does it provide how many judges ar~

21

to render an opinion. I just think i'~ 01J91:t to

22

And that might be the place we could tie tha~

23

in right there.

24 MR. SNOvJ:

25

Okay. Then--

I I
i
i
-_---!

------------MR. R. HARRIS:

PAGE 88

2

You have to be careful how you do it with respect to

3

the Court of Appeals. Barause the majority of the Court

4

e, () f J\. J':P e d 1 s ~;.ll
.'

b e f i v '2

But yO\! decide' the cases in

5

groups of three.

6

JUDGE SMITH~

7

But the way we do it now is if there's any dissent or

8

division, it goes to the whole court.

9 MR. R. HARRIS:

10
..,
z II >-
..'o"....

Yes, I kno\<J. But if you put in here that the Court of Appeals has to decido every case by majority, you Play

12 :

be blockin0 yourself into a. five-man gronp every time.

@r~'TUDGE SNIT!!:

14 >>.x.--.
15 .:J MR.
":'":l
16 .~.. Q Z
17 :

Well, it would hLlve to be a five-man group every lime R. HARRIS:
If you're going to say every case has' got to be decided by a majority of the court of Appeals.

18 ,JUDGE SHITH:

19

1: want the same thing as--the same rule applied to

20

the majority of the Supreme Court, if you're going to put

21

it in there, to apply to us too--for what cases we have to

22

handled as applied to the Supreme Court. But I think the

23

majority of our court ought to have to stand.

24 MR. R. HARRIS:

2S

I'm talking about every case now. You're talking

____ ----.J

every case now.

PAGE 89
~--------~------l
And you're saying ~very case in the court!

2

of Appeals ought to be deicded by five people.

I

3 JUDGE SMITH:

i

4

That's right. Unless if they--a majority of five hasl

5

got to--

I

6 MR. STUBBS:

I

I

7

But you don't go en bank. Judge. unless you've got a

8

dissent in your panel.

9 JUDGE SHITH:

10
CzI 11 I-
r@r:;..o0..<...
~ 14! .I.-. ~ % 15 .:l CI "":::> 16 .~.. Q Z ~ 17 :

But the point I'm making is you would have to make exception to the fact that--about the division. MR. R. HARRIS:
That's what I'm trying to say. You don't want to lock yourself arbitrarily-JUDGE SMITH:
No . But the division won't operate. I see what you're talking about. Because a division of threc--if

18

unanimous. that's the law of the case as far as the Court

19

of Appeals is concerned. But if one of them dissents,

20

then it goes to the entire court. and which shall take fiV~

21

to four. We still hold that.

I

,

,

22

MR. R. HARRIS:

"
I

I

23

I I understand that. But you want to be careful not to

24

eliminate--

i

25 JUDGE SNITH:

I

-------------------

PAGE 90

I agree with you--not to eliminate the division.

2

You're right there.

3

MR. SNOW:

4

OkiiY. 'tie are down to the last sentence of Paragrar,h

5

VI I l i n t 1, a t sec 0 n d par a 9 rap h . Then, we have another sen-

6

tence ~fter that before we get into IX.

7

"The decisions of the Supreme Court shall bind the

I

8

Coure of Appeals as precedents. The Court of Appeals shal

9I

have power to hear and determine cases when sitting in a

10

body, except as may be otherwise provided by the General

.Cl
Z
II
.'o.."...

Assembly." ~oV\' , that language is--we're agreeabl~ that

Q ..-12 ~

tha t should s telY in.

i'TUOTleE HUT.,

14 ~ !;;
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15 q
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16 .~.. D Z <l
17 ::0;
18

Hr. C!1airman, it's different from the language I understand you have adapted with respect to the Supreme Court, very slightly. My understanding is that the language you adopted would say, "The Court shall have the power to hear and determine cases when sitting as a body under

19

such regulations as may be prescribed by its rules." This

20

says, "The Court of Appeals shall have power to hear and

21

determine cases when sitting in a body, except as may be

22

otherwise provided by the General Assembly." Well J I

23

think they ought to be consistent.

24

MR. H I GHT :

25

_

_

Fo _

ur-C __

make __

s them ___

consis ___

tent. __

_

_ I f

_we_m_ak_ e

_ the_s_ am_ e

-

.

.

-JI

change we made earlier. 2 DEAN COLE:

PAGE 91
----------l
I

3

Four-C looks like a pretty good substitute.

4 MR. SNOW:

5

Okay. "The Court may adopt such rules of practice in

6

cases before it and the manner of hearing and determining

7

cases as are not inconsistent with the rules of the Su-

8

preme Court."

9 JUDGE SMITH:

10

Well, that would make it appear that the Supreme

..CzI
II ;

Court could set rules for the Court of Appeals.

@;iJUDGEo... CALHOUN:

Not really. It just says you can have any rule you

! 14 I..-.

want as long as it's not inconsistent with theirs.

0(
:r

..15 ~ JUDGE SMITH: CI

:>

16 ~... az

That's just like saying you never cross your wife as

0(

17 :

long as you agree with her.

18 MR. R. HARRIS:

19

Well, you could have more rules than they have.

20 JUDGE SMITH:

21

I know what it says--what it means. It doesn't--but

I

22

I think it also--if you construe it th0 way I just did, it I

I

23

doesn't mean--the Supreme Court hasn't ever tried to do

I

24

what I think they could do under that if they ~anted to.

I
I

25

But I think it does mean that they could.

I
-----l

,J US'i'ICE HILL:

PAGE 92 ------------------------------ -------

2

now abo~t, "is not inconsistent with rules applicable

to the ,<;upre::112 ('ourt," a" opposed to rule ;) f th(; Supr:::me

Court. Does that satisfy your objection,

,_:TJDC-;E S~lI'rH:

6

7

8

clith Lie rt;les apP.licable to the Supr,~me Court.

9 ~JR. STU'lBS:

10
"z
11 ~M1{.
2...
@J~12 ~

Whose rules are applicable to the Supreme Court? H. HARRIE~ :
(ve 1 1 , I would presume i t would get in the area of certiocni. The Supreme Court would adopt those rules

... 14 >f-
~ :J:
15 ol
"a:
~
16 .~.. oz - 17 ~

under which iq would take writs from the Court of It \<lould be saying then that. the Court of Appeals couldn I t adopt a rule inconsistent as to those writs with those applicable to the Supreme Court.

18 IJUDGE SHI'J'H:

19

Well, you see, the two courts have already agreed that

20

we agree on the certiorari procedure. The two courts

21

agree that--we're on record as agreeing as to how that

22

shall operate. Isn't that right, Harold? AS I recall, the

23

rule says that--in fact I think each court has a com~ittee

24

now to work on dra~ing up the new rules fur writs of cer-

25

tiorari.

I
I

-

-

-

-

-

-

-

-

-

-

-

-

----------

I --------'

PAGE 93

JUSTICE HILL:

2

Must have been before my time.

3 IJUDGE SMITH:

4

To tighten them up.

5 MR. THOMPSON:

6

Ms. Ch a~. rman, ~. .f t h ey couId n ' t agree, don' t you t h~' nk I

7

the Supreme Court ought to have the say-so? Someone would

8

have to make a kcision.

9 UDGE SMITH:

10

I think if anything differs with regard to the

z~ 11 ..
..IoI..<..

Supreme Court, sure.

r@Jrl . 12 MR II< THO,r.iPSON:

,1 .
Il-{!t.t'(..( jt ;;:1

~ 14!.....

t can't conceive of the Supreme Court~n~ normal
rules which regula~,the Court of Appeals except in matters

:~r

15 .:)
~

that the two of them are concerned.

II<

~

16 ~ID JUDGE SMITH:

Dz

~

17 ~

I agree with you. So, why make it possible under the

18

Constitution?

19 JUDGE CALHOUN:

20

Mr. Chairman, I hate to bring up this question, but

21

there is a proposal in some state for the court ~ystem that

22

we do away with any--in case there W0S any disa~ment be- I

23

I tween the two appellate courts. This is called a rotating

24

iI
court system where all judges have the aawe qualifications

25

and they rotate. They serve on the Supreme Court for thre:J

PAGE 94
-~.._----_._---~ .._---_..- - - - - _ . - -1 I
years; you go down to the trial court for three years and
you come up to the Court of Appeals for three years. Thi c;

3

would eliminate all this--if there ever way any disagree-

4

ment, T would say this might eliminate it.

5 MR. R. HARRIS:

6

T think Justice Hill's suggestion--

7 JU~GE SMITH:

8

Yes. I can't see anything wronq with Harold's sug-

9

gest.ion frankly. I can't see a thing wrong with it.

10 MR.
"Z
11 .a.ot..r-..:
12 ~
@r!

HIGHT: If you want to make it eonsi~~ent,you could actually
take the same language in 3E and then just tack it on that last little section there and it would read the same exeep

14 .t>.-.-

for that one word.

:I:

15 oi) .TUDGE SMITH:

"ar:
:;)

16 ~...

I think Harold's is a little better because it says

Q

Z 17 ::;

as long as it's not inconsistent with the Supreme Court's

18

rule.

19 MR. HIGHT:

20

What I'm saying is just using the language, "The

21

Court shall have power to hear and determine cases when

22

sitting as a body under such regulations as may be pre-

scribed by its rules." Ins tea d 0 f us i n.9 t his 0 the r I a n 9 u-

24

age, this would be identical to the Supreme Court languuje.

I

25

Then use Harold's language in relation to as are not in- I

_._---J

PAGE 95 --- - 1
consistent with the rules of the Supreme Court.

2 MR. R. HARRIS;

3

I think there's merit in making the language the same

4

basically.

5 JUDGE SMITH:

6

Yes. I see what you mean.

7 MR. R. HARRIS;

8

This one says, "The Court may adopt such rules of

9

practice ... " and the other one says, "The Court shall

I

10

function under such rules as it adopts," so--

I

"z
11 :;; JUDGE SMITH:

I

..o....

12 .. ~

trOUblt Of course I can't see how you can get into any

@rl

with certiorari because the Supreme Court sets up its own

14 ..>.....

rules the way it's going to take the case on certiorari

%

.. 15 ~
"::I

and we can't have a thing in the world to do with it.

16 .~.. MR R. HARRIS;

Q

Z

17 :

That's how I conld see--

18 JUDGE SMITH:

19

~l e h a ve a b sol ute 1 y not h i n 9 to do 'Ii i t 1\ ~l C e r t 1. 0 r a r i.

20

case. The Supreme Court sets its own rules &nd teillua

21

how to dispose of it before it even gets to U5.

22

h3ve no control over that. Do you have any objections,

23

Hdrold, to putting it the saln'." 't!(~y--the sarllc langu3Je?

24 JUSTICE HIL.J;

25

It looks all right to me.

,,
I ___. _ - 1

PAGE 96

JUDGr:; SMITH:

2

Do you think t~hat's all right, Harold?

3 JUSTICE 9ILL:

4

It looks okay to me.

5 JUDGE SMITH:

6

T can't see anything wrong with it.

!AR. SNOW:

8

?-I.l1 right, now. We agreed then on the--with the rule

9

applicable to the Supreme Court; is that right? On 4C--

10
'z"
11 ~
"0.o..'..
12 ~ Mh.
@ri

that lan']uage? "Not inconsistent with the ruless z;able to the Supreme Court." F. HARRI3:
Let me raise a questioll. If the language is

applinot con-

14 >I~

tinued as it's proposed on 4C--ifwe use the 3E language
,

:a::

I

15 ~
"'"::I

with respect to the Court of Appeals) wOl11dn't you elimina~, e

.. 16 .oz~..

your di\"ision set-up?

17 ~JeDGE SMITH:

18

That's exactly what w knew you were going to raise.

19

You've aot to take care of that. We don't sit ~ a body

20

except when there's dissent. I think you're going to have

21

to leave the body out and say, when sitting.

22 MR. R. l-IARRIS:

23

Well, that or just go back to the language as current-

24

ly in 4C and change the, of, to applicable to and let it

25

go.

JUDGE SMI'I'H:

PAGE 97
1

2

I like that better. I like that better and that

3

\/ill t~ke care of that situation so we don't have to worry

4

about sitting as a body, because we don't sit as a body.

5

We sit as a panel.

6 JUDGE CALHOUN:

7

If the rules require the Supreme Court to sit as a

8

body and these are the rules applicable to them, wouldn't

9

that prohibit the Court of Appeals from sitting as a panel

10 MR. R. HARRIS:

"z
11 ;:
...oII<
Go

I
I I don't think so. The law requires them to sit as a

@_.-12 ~

body, I presume.

;JUDGE SMITH,

I don't kno,,!.

I

14 .:.>..r.-.
..15 .:l ":::> 16 .~..
Q
Z 17 :

II No This says .. "before it and the manner of hearing

and determining cases .. " Well, it describes the manner

I

I of hearing and determining cases, they've got to sit as a

body. How did you say put it, Harold?

18 MR. R. HARRIS:

I

19

I

"Not inconsistent with the rule~ applicable to the

I
I

20

Supreme Court.

I

21 JUDGE CALHOUN:

22

They don't have a rule which requires them tu sit as

23

a bo dy.

M JUSTICE HILL:

25

That's true. The requirement is going to be in the

---------_._--

_. - - - - -, - - - - - - - - - - - - - - _..

PAGE 98
-- ------------_._--_._-------

Constit~tion, I take it.

2 JU1JGE SMITH:

3

That's right. Wi~h the rules--with the rules appli

4

cable to the Supreme C0urt?

5 MR. DROLET:

Couldn't we just strike, in 3E, sitting as a body? "~he ('ourt shall have power to hear and determine cases

under such regulations as may be presCribed by its rules"?

Just get rid of that, sitting as a body, if we don't w.::tnt

10
"z
11 ~ MR.
o.l.L.
@r~12 ~""

that sittiny-as-a-body language in? R. HARRIS:
You know, that might cover the--if you leave out, "when sitting as a body," on the Sup reme Court, that mig 11 t

14 .>..-
'x"

cover the affirmance without opinion problem, too.

15 .:. JUDGE SMITH:

":">"

16 ~...

That's right .

Q

Z

17 :MR. SNOW:

18

Is there any objection to deleting, "when sitting as

19

a body," from the language in Paragraph 1 of 3E?

20 MR. DROLET:

21

They make their own rules, period.

22 JUDGE SMITH:

23

I'm pretty sure that's the reason why, "sitting as a

24

body," was left out of the 4C, because of that sitting-as-

25

a-body thing. "The Court may adopt such rules of practice

PAGE 99
determin~l in Cdses before it and the manne" of hearing and

2

I ing cases as are not inconsistent with the rules appli~

3

cable to the Supreme Court." I just don't see how you can

4

beat that. And as along as the Supreme Court members and

5

the Court of Appeals members agree to that language, y'all

6

ought to let it go.

7 MR. SNOW:

8

I can't disagree with that.

9 DEAN PHILLIPS:

10
\:I Z
11 I-
@;;a..o..<.. 14 .I~.-. ~:r 15 ~ "a< :::> 16 .~.. Q Z 0( 17 ::

Just one possible inconsistency. I think it doesn't change what we've been talking about. This last change t~at we agreed on, apparently, on 3E speaks in terms of, "under such regulations)" whereas we then go back to 4C and we talk about the rules. I think for consistency's sake, we should probably--I would just suggest that we speak in terms of the rules. That's what we're talking about, and not regulations.

18 JUDGE SMITH:

19

I think that's a good observation.

20 DEAN PHILLIPS:

21

These would be, you know, nominated and referred to

22

as rules and not the regulations of the court.

23 JUDGE SMI'l'H:

24

"When sitting as a hody under such rules as it may

25

prescribe."

I
_ _ _ _ _--3

~;~N PHIUIPS,

2 II

RIgnt.

3 I JUDGE SMITH:

!

4i

Harold, what do you think about that:'

PAGE 100

5 ,TUSTICE HILI,:

6

[Indicating affirmative response.]

7

j\~ F . S N 0'i'J :

8

9

10

.."z
11 I-

...0....

12 u

@2- II.

.jZ.:.

/1)

u
'"

14 I.>.--. %
.15 ~
"~
16 ...zIII
.az
17 <Xl

18

Have you got that, Marty? "The court- shall have pO'",e~

to he3r and determine cases under such rules as it may

I
I

prescribe. A majority of the court shall constitute a

i
I

quorum." Then on 4C, "The Court may adopt such rulc3 of

practice in cases before it and the mannerof hearing and

determining cases as are not inconsistent with the rules

tJ applicable to the Supreme Court.~ That's on 4C. All
right, now. Let's get back over here to sixty-four and

last paragraph in Paragraph VIII . Does that need to stay \ I
in there? "In the event of an equal division of judges on \

any case when the Court is sitting as a body, the case

19

shall be immediately transferred to the Suprer,le Court."

20 Hi:\.. R. HARRIS:

21

Let's talk about that practically. Is there any par-

22

t :.c11ar J:eason why that should take place? Is there any

23

reason whv the Court of :I,ppeals couldn' t pn~scribe in j ts

24

rules that if they had tbat situation, they would transfer

25

it? If they do tha~, then the Supremp. court doesn't have

--------_._----------------

take it, do they?

PAGE

101
-----1 I
i

2 JUSTICE HILL:

3

Under the present situation, they could certify the

I

I

4

question which they were divided upon. Under the exi s tingj

5

situation--under the existing jurisdictional line-up.

I Thel

6

only time under the present members of the Court of

I

7

Appeals that you would have that is when one or three

8

judges of the Court of Appeals are disqualified. Do you

9

have authority to appoint a Superior Court Judge in lieu

10

of a disqualified member of your Court?

"z

1J :;; JUDGE SHI'I'H:

.o.....

12 ~
@)~

I don't kno~ whether we do or the Supreme Court does
i L.

14 .~.. JUSTICE HILL:

<xf.

15 .:>
":':">

But there is a provision--

16 l~D JUDGE SMITH:

oz

<f.

17 ~

There is a p.lovision where in ~ase one of us disqual

18

ifies, that you c~n do that. Now, that's a disgu21ifica-

19

tion. But if there's a vacancy, you can't do it. There's

20

a difference between th~ two. The one disqualified--there s

21

a provision made for appointinry someone to fill that. But

if ~here's a vacancy, there is no provision for anybody to II

23

fill the vacancy. So you could hit a place where there's I

24

a vacancy, you see. And we've had that. And we had a

I

2S
lL-

deadlock on a case--four to four--vheretherl'.' was _-,=--=-~~n9yj
_

[1------------

II

ar,d no Frovision.

PAGE lU2
One of th~ other judges changed to keep

, II

the

from tying up in ,:i knot. I happened to be 0:1

3 :1

:osins side is the r.ei:U.ion T ('c'm",mber

t,) we:'..1. Put

Ii:i
4 II

that's a problem. ,\There thcre'~; a vacancy is one thing.

:1

Ii

1 it's a disqualification, il's another.

6 II!:. ,} US'T' ICE HL.,j:

7 Ii

Maybe the solution is t~ take care of the problem

II

8 /1

of the v clcancy.

9 :ru DGr. ~; !>II T 1-1 :

10

Yes. Yes.

"z
II ~. MR. H. HARRIS;

.'oa"...

(@).- ~12 ~

Is there any reason, then, not to leave this

J"DG" SMI'T'l-i:

------ 14 >-

Not if yon take car0 of the vacancy ~roblem, there's

I-

'x<"f.

.. 15 ~ "

not. Because there's provision to appoint so~eone if they

::>

16 .~..

disqualify .

13

Z

<f.

17 ~ MH. Sl\lOW:

18

The motion's been made that we leave it in. Is there

19

any second?

20 DEAN PH I I,LIPS :

21

Second.

22 ME. SNo\ij:

I

23

Motion nade and seconded. All in favor, say aye.

I

24

[A chrouB uf ayes.] Opposed? (No response.] Motion

I

I

25

carried.

1

--.J

~I JUDGL SMITH:

PAGE 1 G3

2

Frankly the only time i t Wi) ~"11 <1 take p.ldCt?

3I II
4

C1 VJ.CdIlCY 1) e c a use t h f~:/ d d i P 1j ,) n t ,:1

other-

6

,)kay. "The rJer::lsions of t!H? Sup:r:e:iie ::D'Jrt Sili.ill

7

8 Ii

l"ave that in.

II9 ,1 U D Gt; S MIT Ii :

10
uz II ; t1 F
...oII:
CL
12 ~
er~ ... 14 )0I~ :r 15 u at :> 16 ;... o Z <l 17 ~

:Jkav. That takc& care of that paragraph. from the Juvelli,le C(~u~t~
{:,;f c/'r(jr, and witllf)ut the n('.:;cs~,itJ~ of c... J1oti(Jn f\~r DC'.

a n d. .

Now you yo GD into,

be I:hc

19

the Distr.i.ct l'.tt.ornc:y of the juJ.i::::idl circuit Wit.i,i:, ",hich

20

t :. c"' j .. of e n 1. 1 e c c;; u r t D r e o u r t s are lot; ate d t. C .(."f', ~ 1." c~ sen t the

21

Ju~enilc cour~ on sueD appeals.

22

23

b to' a~; no wp r 0 v ide d b Y 1 a w tor apr e z LS J 0 r D ~-: 11: a y 1) e 'n ere -

24

after b2

25

~'"J ~. a;; J b u t

PAGE 1 CJ '1

of such Jill of exceptions ~;,) as to Llfforrl oPI)Ortuni ty foy

2

We don't need all that language.

3

JLDGL CALI-IOlJr\~:

4

,.~ ~. C h air man, T I,1 eve t h d. t we r e[ c: r c, r tab l e a nyc.. G n -

5

si.,},::ratl.'.)f! ,-:of this paragraph until viC ']":1: into the t:.ja.l

6

C0urt3 h~Gause I'm hopEful that th~ ~uv~nile courts will

7

be c'l. JJdrt of tile Superior C:CUlt'; under uu!: :tecommenda1;.iorl.

8 ;"1 T:. SNO\<J:

9

10

..,

z

11 Ia-:

..0....

@ r12

a:
.u..

j:
.z..

U

'"

14 .>..-
'<"l
:r
15 .:.

"a:
:>

... 16

ID
Z

Q

Z

17

a<:l
ID

Lha.': has previausly b~en done

thi c, fie .1-'::1. Yo 1).. a r. cl-

;.JLert

n d;: 0 war d ,.,r 0 u 1 c1 w 0 r K. ',I i t 11 y () U (J: I t L a t , too. II ),'1
relative t~ tte trial cou:tts--all the inferla~
I
I rCC~}~-rl; erld.~Jt ~.on~~l as to ~~,he .'3ect. .ions on the \]'u:;-

tice of De~c~ and the Na~ary Publics, BY officio, the

Probate Cuurt dnd the Superior Court as to how it shou10

18

L (' :l r r Ct fi <.1 e d .

19

20

21

.~;'J.;~.:.' C7\Lj:,)U:~:

22

1\ 11 t j. q l1 t . ~~ l r ..

;

24

~oint Qut--Mr. Chairman, rn;:\. y

TJ 0 in t 0 U t 1-.. 11 Ct 's.

I

25

interrelationship betweer, the two ccmmittess

I,

------------_._- -~

PAGE :05

1

t }; ci. t t. 1: 0. r e

I

2

TIodific~tion nf ~hs trial 2curt sys:em, It aifects

3

~ 11 (, iJ r jl e IL a r. e ': 0 'J l' t ~ d t' i. s die t ion w hi C' h j) J e :., G 1: t J j c; a y s fro 11\

4

5

6

y(;'} ,',;',VC: ,;11, d.f'r)'-',.ll r,om th,, f'.t:ooatc c,,)uri: tr:, tHe sllp,::rior

7

8

9

then I S~!]:'}-'()se wit.hout--uniess some pre1visic.,1 "'('ri' made"

10

Czl 11 i=
.'0."....

1 rl t '" CO,;) i: wit hun t: - -

@ r12 .u'.". M~. i.z=.. U '"

R.

iU\T:?RIS:

I

14 ~MR. , S N ()\~ :

III ~
%

15 ,)

\:I

16

.';".;.)
.z..

But: I would antici.pate

0z



17

0<
'"

sians of the 3uperi0 court

that the and they

~~. ': i ..!

'c 1 -

recoJl'n('ndct+-ionS40\LLd wOl,ld g0 :.1nc"" simila

18

name. It would be the probate divisi~n ot th~ superiar

19

c')urt o:r--whic'r1 1t,;2 might halTI~ tc ]rJjust some nf U',e ld:19-

20

uage.

21 JtJs'rrCE IrILL: 22

23

I'J'llTber <.>[ cases bQinc; t.r-ied in the su.;"cricL ('OU 1.' 1.. , l,,'hatever

24

it may be, you also aEfect the jur~saicti0n of ~h~ ~opel-

25

1 a ': (~ C 0 u r t s a 3 t o t h" n 11 mb e r 0 f the c a 0, esc: C :0 in", t ) t 11 ,?

PAGE 10')

------------------------------- - ------ _.-- ---------- ----l

I

I

d})p(~la':e G(-,urLs from the "superior courts."

"L.

.M1~' 'R. lIARFT:3:

1

3I

4I

wit~ making a report which

yOLl charg<Jd i

I

propose to bring

I

5

in more than one form. Then you charged this com-

I

I mittee \.lith ;"aking a r.?!'ort and \'ILell l};f:: t\,U have C'JalAsc{~fJ

7

-",auld be the time T think to address

8

Cern:,:; .

I
Hill's con-
I

9 MR.
10

Alber~

I
Cdn you ~nd Howard work with Marcus and RObinl

1z3 11 l-
.l.ol..<..

on that'?

12 !':"! MR. OVERBY:

ell

Ufo:; glad to.

-I I I
I
I

14 >-

I-

':<z"l::

15 -=

fIndicating affirm~tive respuns0.J

"'::">

16 .~.. HR. SNOW:
az

<l:

17 :

Charlotte, how about you serving on that committee,

18

teo?

19 MS. r1C'RA:'l:

20

Okay.

21 i'm. Sl'-JOhT:

22

Har.sel , IT'.aybe you :) ugh t to serv E; ();l that. c:cmmi t tee:

.:.~

also.

24

MR. H. !IA~RIS:

25

[Indicating affirmative respopse.]

MR. SNOW:

PAGE 187
----------------------- --1
I

2

I guess y'all are getting hungry, aren't you? Do

I

i

3

you want to go on a little longer or--and COlLe b3Ck this

4

5

6

7

8 9

10

"z
11 j:
'0.."....
@ r12 !.'.":.! j: .z.. U '"

14 .>..
'"
:I:
15 .:.

"'::">

16

...III
Z

0z
17 ''""

18

19

afternoon or--I mean, not come back this afternoon? Or

~o to lunch now? You see, now, we've just disposed of

I

several sections. We've got the superior courts and the

I
State Court of Claims--we'll mention that briefly. But

I
then when we get to probate courts, we don't do anything
I

on that today because we've got a committee that will

I

I
come back on that--jurisdiction, Justices of the Peace--

I
we ~on't do anything on that because they will have rec-

o~mendations there. Notaries Public--they will have a
d."~ recommendation on that. Then we h've Section IV here
iag with uniformity provided for, "Exrcept ,1S oth(~rwise proiI
I
vided ... II That's a relatively new constitutional amend-

ment. I guess we've got the Attorney General dn~ District
./ Attorneys. The Attorney General has no business being in

,I this section anyway. You don I t need to be in this Article

do you?

I

20 MR. STUBBS:

21

It would be nice to be there.

22 MR. R. HARRIS:

23

Well, they'd rather be in here than nowhere.

24 MR. S NOW:

25
ll-

tvell, they I re in the Executive.

I
I
~

MR. STUBBS:

--------.------

PAGE 108
, -- .. --.. - - - - -..- - - - - - . - -.. --1

2

There are advantages to being in the Judiciary, too.

3 J '.' [,G~: ell.. LHOUN :

4

Shou:d the District Attorneys be there: I knc"" ce~-

5

t(Jin pecple who say they 3hould not be.

6 l'1R. WIGHT:

7

The Piose~uting Attorneys viewpoint is that" they shou d

8

becaus e-

9

JUDGE CALi10UN:

10
III Z
11 ....
o..'."... 12 ~ 1.m.
@r;
14 >.... HF ':oz"C:
15 .:
"Itt
;)
16 ~ Q z
17 ~

I understand it's the defense attorneys vi~wpoint

\

that they should not.

I

THOMPSON:

I

I thoroughly agree with that.

I

HIGHT:

I

Attor~ Well, this is--if you're talking about District

neys working with the superior court judges as being in

that particular area as rl superior court judge on a cir-

18

cuit basis. It's tied into the whole criterid and this is

19

the point I'm ra1sing. We can come up and just show you

20

all the way down the line why they're there. I think it's

21

the Sdme thing that Bob and: talked abou~ 82xlier.

22

'"1 the j.Udges

23

cd--I t_;;i:, ;>,-lr1:::.

24

).:" 1. r ~1

i ' r~ q Ij '.)' :

25 HR. SNOh':
LL

; ,E t hum b ,:;.! j 1: (;t

I
_ ________J

PAGE 109

Seeing as how we've got several different svctions,

2

I think it would b~--it is time that we probably rested on

3

this for awhile and let's just 'JO to. lunch and come bi3:ck

4

at two o'clock and we'll stay until thre8-thirty. Is

5

that all right with everybody?

6

[Whereupon, there followed a brief recess for lunch.]

7 MR. SNOW:

8
9
10
"z
11 i=
@;;.o.I..I..: ! 14 .~.. <If :r 15 ~ "II: ~ 16 .~.. 13 Z <If 17 ::
18
19
20
21
22
23
24
25 ll-

All right, now. Let's start on page sixty-eight.

And this will be more or less just for the information herJ

of the subcommittee that will be dealing with the other

I

courts. The state Court of Claims, of course, is a new

constitutional amendment that was passed some three ye3rs

ago. We have never implemented this by any legislation.

Let me suggest that one reason--and I may be one of the

hold-ups on this--is because that we llave had fewer claims

in the last three or four years than had been presented .

This was a result, primarily, af at one time so many claims

coming through the legislature and tying us up. It really was an ordeal. Now, many of our agencies and departments

are now self-insured or are carrying insurance, such as the

Highway Department. And that's just been in the last three
numbe~ or four years. So that has substantially reduced the
of claims that we had. And it was just a s~mple matter of

economic:>, looking at the fewer claims and the possible
cost of setting up this court. I'm no_t 8Uggesti~_~~at~

PAGE 110
----------------- ---------------------___ _---1
I
should not continue to have a:State Court of Cla~ms provj-!

I

2

slon in the Constitution. I think we should. But 1 thinkl

3

probably, tou, just the first sentence and possibly the

Ii

4

l~st sentence or something relative to sovereign immunity I

5

would be all that would be necessary i.n it. And just thatl

I

i

6

I the General Assembly may or is authorized--or may estab-

7

authart 1ish a State Court of Claims, rather than is hereby

8

ized.

I
9 MR. STUBBS:

I

10

t\Te II, you know, the cost of premiums is getting so

I

"z
11 ...
..'o"....
@;i

I
bad that most of the departments are going to be hitting \
y'a11 like mad for money. The insurance people that i~Bured the Board of Regents will no longer do it. We've

14 ..~.... %
15 ,)
"'::">
16 ~... Q Z
17 :

had to work on a self-insurance plan for them which cost a ~reat wad of money initially. And the Regents have it, but the other departments which can't carry reserves like that are going to have a real problem. It may, in the Ion

18

run, be less expensive to provide this. But in any event,

19

Wayne, I would hope that you put in something about sover-

20

eign immunity is reaffirmed until such time as the Court

21

of Claims is set up.

22 MR. SNOW:

23

Well, I'm real concerned as to what our appellate

24

courts might do on that subject.

25 MR. STUBBS:

rr---------------------

-'"-----P-A-G-E---1-1--1----1

Well, we knew what they did wiLh the Board of Regentst

2

authored by our illustr6us mern~er here. We're really

3

on the contract situation.

4 MR. SNOi1;

5

well, I was talking to Harold ahout it a little ear-

6

lier. His line of thinking is not along the same lines

7

that I would be thinking on.

8 MR. STUBBS: I

9

Well, I've heard Harold before he went on the bench ,-

IO

and I think I know which way he's going.

.".z
11 j: MR. SNOW;

I

..o....

@ -12 ~

I was just throwing that out.

!MR. R. HARRIS,

I

!... 14 t:r
.15 .: " :;)
16 .~.. MR. oz 17 :

Do we tence5? THOMPSON;
well,

need any more than the first and the you've got ~our sovereign immunities

last sen-
e~pecially

18

reserved. That's in the last sentence.

19 MR. 51'UBBS;

20

Yes. I'd like to see that.

21 MR. R. HARRIS;

22

Do we need the middle two sentences?

23 ME.. SNON:

24

No. I don~t think--because I think if you're just

25

authorized to do it, you can set it up in that Kay.

I

______________________-.-J

PAGE 112

MP. F. HARFIS:

2

~uthoriz~ the appeal and whatever.

3 EH. SNOVJ:

4

Well, okay. Now, the probate court will be h~ndled

5

by th~ s~bcumreittee.

6 JUeGE SMITH:

7

-y.n,,,C did you jecid<.. to do with that, \iay!!'i.:?

()

W0'rc not making aLi decisions ciyht now. Tlli s more;

10
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11 i=
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12 ~
e/~lJ'-

or less is a direction ':0 the subcommittee. Okay. have a luorum now. We'll do something abo~t it. your ple6sure on it?
?. HARR.1 [, :

..14 >~ x
15 0)
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17 ~

We} 1, :~ f wed 011 ' t n e (' (i t 11 e IT, I s u'J Sf est wee 1 i min i1 t e the mi J. '.: 1 L: t: ',y 'J sen ten c e sail d k e e p the fir s t a n d 1 a st.
Sec::lnd.

18 t-i R S NO \v :

19

Motion made and seconded. Those in favor, say aye.

20

fA chorus vf ayes.] Urposed, no. [No response.] Now, on

21

t~e Probate Court, that will come under the gen"'[al Y",~'<;r:l-

22

mendations of the sub~ommittLe. The D~raq~aph II on juris

23

dictiol\--the ,Tustices c:: the Peace wi 11 come under tile pur

24

view of the subcummittee. :'aragrap:l III on page se.Vt;nty-

25

two also comes under the subcommittee. TJc)'ta:r.i.es F'llbll C j

they come under the subcommittee.

PAGE 113
I
And we're down to Uoi-

2

formity of Courts. I would think that, too, would--since

3

that would be--this primarily is concerned with the

4

superior courts and the inferior courts, isn't, John?

5

Judge Hill mentioned--before he left, he called to my atte -

6

tion this business, except state courts, here. There is

7

a Uniformity Act for state Courts now and these exceptions

8

--1 think the subcommittee might consider the uniformity

9

of all courts including even the city courts.

10 MR. THOMPSO;:J:

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11 t-
l..ol..I..:.
12 ~
@F~

If we do a job, wouldn't Wp really come back and recommend the abolition of State Courts and city courts, basically, and the Small Claims Courts?

14 .l.:. MR. R. HARRIS:

x~

15 ~

We could. That's a possibility.

"llI:
::>

16 I~D JUDGE S!-nTH:

az

~

17 :

And have just one trial court?

18 JUDGE CALHOUN:

19

It

would

be

more

like

a

merger

than an

abolition,

.,.
.L

20

think.

21 MR. R. HARRIS:

22

If it's going to basically stay like it is, then I'm

n

not sure I woulrl agree with Harold because my recollection

24

of that Uniform State Court Act didn't really m",ke them

25

uniform.

--------------
IvlR. THOMPSON;

PAGE 114

2

Just changed the name and made them all State Courts.

3 , ~Li. R H A RR 1: S ;

4

It just changed everybody's name to Stat~ Court of

5

b:_ank county an.:! left the jurisdiction of the Civil Court

of Fulton, the State Court of DeKalb, which have no more

7

jurisdictions than other State Courts. So I'm not--

8 JUDGE CALHOUN;

9

That's true.

10 MR. SNOW;

11 ...
'.o"..
1M
@;i ! 14 !i; x
15 01) MR.
":'>"
16 ~ 1M Cl Z <II
17 :

Well, that--you're right. And this right here was-up until that time, they were all--most of them were known as city courts and they were referred to in all decisions and cases ilS city courts.
R. HARRIS;
I think the ultimate decision on that is also going to hinge on what the committee decides to du with the

18

recomm~ndati0n comes back with respect to trial courts.

19 MP. SNOW:

20

1\11 rL<Jht.

21 MR. THOMPSON:

22

I cdn't see abolishing all'the other courts and leav-

23

ing these ~itting out there like a bump. I think i f W(~ do

24

~ job, we're going to come back with one court with provi-

25

sions pe:r:haps.

MR. HIGHT:

-----------P-A-G--E--1--1-5----l

2

You've got. r 1--not roa1 prob1.m, but. prob1e. I,

3

in relation to--of course these are financed by the

I

4

counties basically from fines or otherwise. It otherwise I

5

could very well come into the state courts and be put in I

6

the superior coutts. Plus the fact that a lot of your

7

counties do not have them. ~hey've got them in certain.

8

areas, as you know.

9 MR. SNOW:

10
CzJ 11 ..
..'o."...
@;:I 14 !..... ~ :J: 15 0) CJ :'>" 16 .~.. Q Z ~ 17 ~
18

Well, in the areas that you've having, though--and

I'm sure the subcommittee will take this in consideration I
partiou~ --is that that would be solely a division in those

I

lar areas of the superior court. And as to the financing ,

I

of them--as to whether the State should assume the re-

I

I
sponsibility on them or what the jUdges of that particulari
I
court or what the probate courts should make for a period

of years will be matter that will address itself to that

subcommj,ttee.

19

On the top of page seventy-three--Bob, y'all are

20

rather sure that you think your office ought to remain in

21

two sections of the Constitution?

22 MR. STUBBS:

i

I

23

J

!
The Attorney General has indicated to me he would ]ik~

I

24

to, sUbject to the pleasure _of the General Assembly and th~

I

25

people, to remain in both Articles. I mentioned to Robin

J
j

____________-..J

PAGE 116 ------------- ------------------------1
I in the break that there are some peri~eral advantages to

2

us in being in both places. We've been in the court of ;

3

representing the General Assembly--a member of--or commit-!

4

tee in the General Assembly in one case. We relied on

I
I

5

provisions in the Constitution that weren't clearly

I

6

spelled out to justify that type of representation. I ltIe I ve

I

7

done the same thing with respect to representation of

8

judges. There's no question but what that could be spelle

9

out by law. This strengthens the hand of the Attorney

10

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11 ~

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at:
.!.:.!

MR.

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14 >~ '."( :I:
15 0)

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::>
16 '.Z".. MR . 0 Z .(
17 at: CD

General to be somewhat unique among the rest of the State House officers. SNOW:
All right. Why do we need to put his election and his term in this section of in this Article when it's already in the Executive Article? STUBBS:
There's really no reason. I mean, you could make a

18

brief against including the Attorney General in the Judi-

19

ciall\rticle. We've always taken the position that we're

20

an officer of the court. The Attorney General is an offi-

21

cer of the court. He is also an Executive Officer in the

22

sense that he runs the Department of Law; represents or is

23

a member of some thirty-five or forty Executive Branch

24

I
boards, none of whi~h representation conflicts with his Jin

25

dependent status as a Judicial Officer. \"1e 've found in

----

PAGE 117 "-------"--------------l
that division, certainly, I think a little more strength

2

and independence of activity than would be the case if

3

you were nothing more than the Commissioner of Insurance.

4 MR. SNOW:

5

Is there any objection to taking out Paragraph I on

6

page-seventy-three under Section X?

7 MR. R. HARRIS:

8

Let's just face up to it. The--and Mr. Bolton is a

9

very dear friend of mine. I've got nothing against Mr.

10

Bolton, per se. I wanted to ask--the Attorney General is

CzI 11 j:
'~."..'
@r~12 !'":!'

an Executive Officer of the State and it's specified there and I just think h~ and his duties ought to be in the Executive Article.

14 ..>...-. MR. STUBBS:

:I:

15 .:.

You run into several problems right there. I don't

CI

:'">'

16 .~..

want to turn this into a dialogue, but we're, for example,

oz

17 ~

specifically named as counsel for the Judicial Qualifica-

18

tions Commission unless you--by its rules, not by the Con-

19

stitution, which was considered to be compatible~with the

20

fact that he was both an Executive and Judicial Officer

21

without offending separation of powers. And you oet lnto

22

some--that type of concerns, can a member of the Executive

23

Branch provide representation for the Judiciarv unless you

24

spell it out some way.

25 .JUDGE CALHOUN:

__"

I "_---.J

PAGEl18
Well, you don't spell it out here, do Y:~-BOb?--~:~l I

2

just say, "There shall be an Attorney General." You don't III

3

say what duties he has in reqard to the Judiciary.

I
I
4 MR. STUBBS:

5

You don't in this one, no. But by putting him in the

Judicial Article, you give him a stature as a JUdicial

7

Officer, whicll he would not otherwise have. And there may

8

be a question that's already been raised in one court as

9

to whetner the District Attorney is a JUdicial Officer or

10

not--a case down in Augusta. I assume that that could be

covered even if you put him over in the 'Executive Branch.

CALHOUN:

I was go~ng to say, why couldn't you put him--where-

ever you put him, say that he shall do these things. Just

like you provide in the--of course you provide in the

JUdicial Article some duties for the Governor in relati0n

to the Judiciary.

18 MR. STUBBS:

19

So long as it's spelled out. They're not spelled out

20

now. That's my point, Judge. And we have taken implicit

21

powers from the inclusion in the Judicial Article.

22 MR. SNOW:

23

Well, do I hear a motion?

24 MR. R. HARRIS:

2S

Do we need it?

MR. SNOW:

PAGE 119
_---~---l

2

That this entire section be removed?

3 MR. R. HARRIS:

4

And put over in the Executive Article which, as I

5

understand--

6 MR. SNOW:

7

It's already there.

8 MR. STUBBS:

9

The duties are not.

10 MR. SNOW:

.."z
11 ...
..o....
e;~

Oh, the duties are not. The motion has been made that Section X be--as far as the duties are concerned--be transferred.

14 ..>....- MR. R. HARRIS:

<l

%

..15 .:.
"::lI

Well, the whole thing be deleted from this Article.

16 I~II MR. SNOW:

Qz

<l

17 :

And the duties be placed in the Executive Department.

18

Now, the question that comes to my mind there, is of

19

course we're only working on three Articles at this time.

20 MR. K. liAHRIS:

21

But you thought of that when you passed this Consti-

I

22

tution in 1976. And you provided that if a whole Article i

i

23

is going to be rewritten and necessarily you have to take

24

I something out of that Article and do something to another

25

Article, that it will all be voted on at the same time.

II

_ _ _ ...

-.J

You handled tnat already.

2 MR. SNOW:

3

Yes.

I 4 JUUGE CALHOUN:

I remember that.

Okay.

PAGE 120
-------- --- --.----------.- -----1
I
I
I

5

If we're going to do that, I think we should add some

6

additional dutles to him--to represent members of the Judi

7

ciary in cases arising from their official duties or some-

8

thing of that nature.

9 MI{. STUBBS:

\,

I

10

As ~ matter of fact, the legislature calls on us

!"z
11 to-

fairly common.

'o."..

~..: ,JUDGE CALH:::~t.

I I
I
I

Okay.

!

14 ~MR. R. HARRIS: !;;

I



%
15 ~

serVice] Of course it says, "and to perform such other

"~ '" 16 .~..

as shall be required of him by law.~

Q

Z

17 : ~JR. THOHPSON:

18

But, Mr. Chairman, Robin uidn't get a second, I don't

19

be lieve.

20 MR. SNml:

21

No. Is there a second to Robin's motion?

22 Dt,AN lJ.l\TTERSOI\!:

23

1 S E' con d i t .

24 MR. SNOvl:

25

Motion made and seconded. Is there further di5-

PAGE 121

cussion.

2 MR. STUBBS;

3

NoW, if you're go.ing to rewrite the duties-again,

4

this goes back--Mr. Bolton, as Attorney General and to somt.

5

extpnt, Mr. Cook before and certainly when Governor Arnall

6

was Attorney General, had taken the view that they had

7

common law powers that justified their acting other than

8

when required by the Governor. The Governor might not

9

require you to do something that damn well needs doing.

10

In fact

z\:I

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>- MR.

~

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15 ~

III:
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III

And the couple of years ago was very explicit in that respect. It's not made dependent upon the Governor's action . THOMPSON:
Mr. Chairman, I'd like to make a substitute motion, if I could. It looks like we have strong divergent views on this. I'd like to move that we postpone further con-

]8

sideration of that Article until the next meeting.

]9 MR. SNOW:

20

Is there a second to that?

2] MR. R. HARRI S ;

22

I don't object to it.

23 MR. ,I. nA RR IS;

24

Second.

25 MR. SNnW;

I
I
_ _ _._---1

Ayl right.

Motion made and seconded.

PAGE 122
All tho~~-::--l

2

I favor, 5;iY aye. [A chorus of ayes.] Those opposed, no.

3

[No response.] All right. We'll postpone it. In the

4

meantime, Bob, you might prepare some language--

5 MR. STUBBS:

6

I'll prepare a paragraph, if I may, which I think

7

would be suitable if it were transferred to another Artiel

8 MR. SNOW:

9

All right. District Attorneys, Number; term of offie

10
"z
11 I-
"o...."..
@;I 14 I.~...-.. % 15 olI "'";) 16 .~.. azo 17

vacancies. "There shall be a district attorney for each judicial circuit, whose official term (except to full a vacancy) shall be four years. The successors of present and subsequent incumbents shall be elected by the electors of the circuit wherein the district attorney is to serve, who are qualified to vote for members of the General Assem bly, at the general election held next preceding the expiration of their respective terms. Every vacancy occa-

18

sioned by death, resignation, or other cause shall be fill d

19

by appointment of the Governor, until the first day of

20

January after the general election held next after the ex-

21

piration of 30 days from the time such vacancy occurs, at

22

which election a successor for the unexpired term shall be

23

elected.

24 JUDGE SMITH:

25

~ That's just the provision we stated this morning we

__ _ .., PAGE 123
. . . - - - - - - - - - - - - - - - - - - - - - - - - -.-- -._--'....- .. -.- ----_.. _-- _. ... ..
i.
should put in the judges' section right there.

2 MR. R. HARRIS:

3

That's right.

4 MR. SNOW:

5

Have you got that language or can you check that

6

language with what we put in on the judge's section?

7 MR. HODGKINS:

8

[Indicating affirmative response.]

9 MR. SNOW:

10
..1z:1
11 j:
@;;.o..... ! 14 ...... ~ :I: ..15 ~ "~ 16 ~... Czl 17 :

Any comments on Paragraph I? [No response.] Paragraph II . "It shall be the duty of the district attorney to represent the State in all cases in the superior court of his circuit and in all cases taken up from the superior courts of his circuit to the Supreme Court, and Court of Appeals and to perform such other services as shall be required of him by law."
Any comments on that paragraph?

18 MR. STUBBS:

19

You've got an inconsistency that for most district

20

attorneys doesn't cause any problem. But with one or two,

21

it's given the Attorney General some difficulty. Because

22

under the Attorney General's duty, to represent that State

23

in the Supreme Court in all capital felonies. And then in

24

the DA's provision, that he shall represent his circuit--

25

represent in all cases taken up from the courts in his cirl

cuit to the Supreme Court.

- - - - - - - - - - - - - - - - _._--_ _.. ----. In most instances, we have bee

2

able to accommodate both provisions by having the distrct

3

attorney with the Attorney General in ~apital felonies.

4

One or two DA's, they raise holy hell that it's their caSe

5

and we"-'e got no business in it. We have not been able to

6

resolve that with any great satisfaction. We construe the

7

law that where one's specifically spelled out, it takes

8

prefer~nce over the one which is generully provided for.

9

But on0 DA--and Tony knows who he is--he doesn't think

10

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II t-

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Do.
9 r12 u ;: .zj.:. HR . u '" I 14 l0t:(

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15 ~

I:l at
~
16 .IZD..

1:1

Z

~

17

at
ID

much of the Attorney General's office. So i t ' s just 'c' running sore. And I would like that clarified for future DA's and Attorneys General, if possible. HIGHT:
I think the viewpoint of the other district attorneys around the State On a capital case--I know whdt you're t~lking abo~t--is where one DA essentially writes a brief and, as we constru,~d it, I think in the .7\tlant:l "ffice for

18

a number of years, is that we file as the person that tria

19

the case, a briaf on snelling out the viewpoints in rela-

20

tion to the capital case from the district attorney's pain

21

of view and the Attorney General was an assistant or aide

22

to the Court in relation to it. Two briefs in fact really

23

should be filed. The DA should file his brief because he

24

is most familiar with the facts of the case.

2S MR. STUBBS:

-

, . - - - J

PAGE 125
_ ...... -_._------- "
I don't want to make this any bone of contention, butl

2

the statute specifically directs the Attorney General to

3

take cases to the U. S. Supreme Court. And, as most of

4

you know, almost every capital case goes to the Supreme

5

Court. If we get into a disagreement at our Supreme Court

6

level, our position, we feel, has to prevail because'thatl~

7

the one we have to argue in the Supreme Court of the

8

I. united States. As I say, in most instances, this creates

9

no problem at all. In one or two, it's been a very aWkwarf

10

situation. Whatever the pleasure of the commission and

"z

e -I11 i= '2.".. 12 ~

the General Assembly is, is suitable to us. I just think that we should be able to remove this possible i~ritation.

JUDGB CALHOUN,

14 ..>....

Could you just put in, the district attorneys except

~ :z:

15 .:l

capital felonies? He would have no duty to do it; that

"'"::;) 16 .~..
az

would not prevent him from doing it .

~
17 ::I MR. S1'UBBS:

18

That would suit me fine. I don't know how they'd

19

fee I abo uti t .

20 MR. HIGHT;

21

I think it's something that we would have to look at

22

because we sort of feel--realize that the problem involved

23

here. But in many, many instances, as a very practical

24

matter, the rUling of the court--what the , court~ decides

25

actually determines what--if he takes the Attorney General s

viewpoint or anybody else,

the

Court

PAGE 126
---- ------------------------- -l
!
actu~lly makes the

2

decision that has to be uphelrl by the U. S. Supreme Court.

3

So we see it basically as only a problem, perhaps between

4

a DA's as maybe talking too loud in a given situation than

5

he should. but that the--what's going tu have to be carrie

6

would have to be the Georgia Court's decision. 'They're th

7

one that make' that decision as to how they want to base

8

it:, whet_her the--you've got two particular contrary point

9

l f view or not.

10 JUDGE CALHOUN:

..CI
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11 i=

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..12 u... j: %... U
@ r '"I 14 >to '<"C

J:

." 15 ~MR. ::>

... 16 OIl %

D

%

17

<crC:
'"

Well, what would be wrong with just relieving the district attorney of the constitutional responsibility to represent the State in capital felonies, but leave him tha option to do so. HIGHT:
For this reason. I think from a very real reason, JUdge. The fact that as the trier of the case to the

18

Court, and here I'm speaking in part against the interests

19

of some district attorneys--the trier of the case that

20

actually tries it and is familiar with the facts, should

21

be saddled with the responsibility of making some type of

22

presentation to the appellate court for them to decide. It

23

makes--it could v~ry well make a difference in a very impor-

24

tant case by the trier of the case having to submit it--a

25

particular brief on this particu:ar point. 1 think your

PAGE 127
hec~use---l appellate court. would--or should feel that way

2

this would help them, not necessarily if they had two viewt

3

points, make it implicit that the district attorney has I

I

I

4

the responsibility of submitting these briefs.

5 MR. R. HARRIS;

6

Are you saying it takes the duty out of the--off the

7

Attorney General as a constitutional requirement? That's

8

basically what you're saying.

9 MR. DROLET:

10
III Z
II ~
'..o"....
12 ~
@r! ! 14 t:z;: 15 .:. ..~ ~ 16 ~ MR. Q Z 17 ::

As far as representing the State in the Georgia Su~ preme Court on capital crimes. ~nd when it goes to the Supreme Court of the United States, they have to represent the State's position in the Supreme Court of Georgia' position, which of course, that leads to the conclusion that they are judicial in nature, too. STUBBS;
Right now, for example, with Lewis Slaton and with

18

Randy Peek, they do their own briefing and we're just alon

19

on the case. With most of the other DA's, we du Rll tho

20

briefing and everything else on capital cases.

21 MR. HIGHT:

22

As I see, though, the way we now have i t with the tWQ

23

doing it, you've got--you've got some very good matters

24

coming out of the Attorney General's office that you would

25

lose that way. And the appell a te cour ts lose uul e s s :: hey

PAGE 128
L~,o~l say we don't want::o cl0 tt21.t, h0Cu.l1SC we e SA it a.' "

2

Tt's two pecpl.e working to assist the court on a very lm- I

3

po r t a I, t e a ~:: e .

I

4 JUDCE CALHOUN:

5

vJell, if you want to leave it in the Constitution,

6

how about going hack to Paragraph II, Section X, and just

7

say, "and in conjunction ,dth the distrLct attorney to

8

~epres8nt the State in all capitRI cases," and make it

9

joint.

10 !JEAN PATTERSON:

CzI 11 ...
.'.o"....'

Woul~ it be too radical to suggest that the Attorney

12 ~'"'

General's office has a supervi~ory power--

@ r l MH. SjUBBS:

14 ..>..-..

Yes .

x~

15 ~ JUDGE: SMITH:

";'":)'

16 ~...

That would be worse than what you've got .

Cl

Z

17 g~; MR. STUBBS:

18

That would be very difficult. We've been able to

19

jawbone it with, basically, only one or two DA's that we

20

have that i~'s a problem with. What I guess I'm hunting

21

for, is utopia.

22 f>\E. HIGHT:

23

We think, from a very real point of view, that we've

24

been able to give the appellate courts some more assistanc

25

in those cases than we would otherwise.

~ ._..

PAGE 1.:.'9

JUDGE SMITH:

2

I think you have a good point there. It's hard to

3

pick up a case and represent a case before appel13te court!

4

when you weren't actually involved in it at the trial

I

5

court. That's most difficult. I tried that only one timel

6

and I was as lost as--1 was lost. So when I realized how

7

lost I was, I filed a brief and didn't appear for argument

8 MR. STUBBS:

9

I don't disagree with that at all, Judge. In fact

10

I think that--

Czl

11 ~ JUDGE SMITH:

..o....

Q-IMR. 12 ~

I know.
STUBBS,

You're just trying to find an answer.

14 .~~.. ~:r
15 ~
"lIl:
;;)
16 .o~z.. ~
17 ::

In fact, you make the trial lawyer try his case bette if he knows he's got to defend it on appeal. I think what I'm trying to resolve is what appears to be a no-man's land of who's responsible. And it's fine if we can work

18

it out as we've done wi~h Lewis' offic0--Lewis Slaton.

19

But if we don't, then we've just got 2 running sorei it's

20

an irritation. But I don't know quite how to resolve it.

21 MR. HIGHT:

22

Well, we sort of see it as--what it really seems is

23

some of the DA's take the point of view that there should

24

only be--be one hrief and that represents it. We take the

25

viewpoing that the Attorney General has got a responsibil-

_.----------------------

--, PAGE 130 --

I

ity in those cases, particula.rly from the point of law

!

I

2

invol d. to make sur. that the Georgia laws are protectedl

3

nt that particular level and thnt controls the case. By I

I

4

the same token, the district attorney has a responsibility

5

to make sure that case, when it comes up, that the appro-

6

priate safeguards-~from the trier of the facts. I think

7

dS the ju1icial system continues with an assistant pro-

8

vided--and it gets better--that you eliminate a lot of the

9

problems that we have had in the past.

10 MR. SNOW:

..zCJ
11 ...
.o..
12 ~ MR.
@rl ! 14 ..:..r..
:: 15 olI MR. ~
16 .~.. D Z <l
17 :

Are there any suggestions as to-DROLET:
well, R bin suggested deleting it under Article X as far ~s a mandatory thing. That would solve-STUBBS:
That would leave it strictly, then, for a district attorney to request the Attorney General to assist--or the

18

court would ask for an amicus brief.

19 MR. DROLET:

20

That way it would be more optional.

21 MR. STUBBS:

22

And that way it would be optional with--it would not

23

be present ill every case. We may be quibbling about some-

24

thing that isn't going to amount to a row of pins anyhow.

25

Because if a capital felony is redefined by the JUriSdi~

PAGE 131 --------_._---..,
tional Subcommittee to mean those in which the death pen-

2

alty is in fact imposed. You're talking about twenty or

3

thirty cases a year at the most.

4 JUDGE CALHOUN:

5

That's already happened, hasn't it? The Supreme

6

Court's already defined it.

7 MR. DROLET:

8

In that Collins case.

9 MR. STUBBS:

10

The Collins case says unless the death penalty is

zCI

@;;11 .o......:...

imposed, it doesn't go to the Supreme Court .

JUDGE SMITH:

Yes. We've got all that now.

! 14 ...... ME. STUBBS:
:J:

15 ol)

You've got theM now. Since there are no longer capi-

.C:I

;;;)

16 .~..
oz
17 :

tal felonies in the Supreme Court, so the DA's will ~e doing it all in front of you anyhow.

18 JUDGE SMITH:

19

We're meting out some fine justice.

20 MR. STUBBS:

21

So if it were eliminated, as Robin has suggested,

22

then we're in the position of insiting requests uS \~'e do

23

in a lot of cases already in the Court of Appeals. or of

24

being there when the Court asks for an amicus brief.

2S MR. SNOW:

woulo you do this?

W~uld

y'all

work

PAGE 132

-.~._- . - . - . - - - - - - -...-

'~--1

together in conjunc- I

2

tion to try tu get up som~ language 011 that that might

alleviate tile problems ,vni .,1 you "2 'j<Jt now?

4

t,t) ~,.. (:e}.1 L(le (on{3tr~l.1ction

5

6

7

t In 'J 'j 1.. L <2 t T' E' J- e d r e s t: i l l ,1 l o t ,) f ,.} t ,1 t 1.1 t e s t h d t:

8

:3ay sc,licitor general.

9

10
zCI 11 l-
lo..l..<..
12 ~'" ~1l-\..
@ri

But they would be that tim~. HIGHT:
ThAt ~n~ cured by

legal under thAt Constitution at law last year, General Bill 45.

14 ~ I'<:z"C:
IS ~
"ll<
::>
16 .~.. o Z <C
17 :

SNOW: Pa!~a':Traph III, then I is out. Paragraph I of Section
XIT, Salaries of Justices, Judges, and District Attorneys. "The ~ustices of the Supreme Court, the Judges of the

18

Court of Appeals, the Judges of the Superior Courts, and

19

the District Attorneys shall receive such compensation and

20

allowan~es as provided by law. The General Assemblv may

21

authorize any county to supplement the compensation and

22

allowances of a judge ... " if we stop there where it says,

23

as provided by law, would it be--it would not make it i1-

24

legal for the General Assembly to pass legislation to alIa

2S

it to be done. Why does i t need to be in the Constitution

PAGE 133

--the remainder of that?

2 MR. STUBBS:

3

You need to ask some of the judges out of Fulton

4

County.

5 MR. THOMPSON:

6

You mean the second sentence, Wayne? We'd De sure,

7

now, that the General Assembly next year would go back to

8

that and enact legislation ~hich would permit this. If

9

they didn't then we would be decreasing the salaries of

10

a whole lot of superior courts judges.

'z"

11 ~ MR. SNm.;r:

e-- i..o.... 12 :

Well, if they are presently receiving supplements--

MR. THNIPSON,

! 14

There'd be no basis for--

I;;
lI:

15 ~ JUDGE SMITH:

.'.".or:
;;)
16 z...

You couldn't lop it out because the basis upon which

Q

Z

17

or:
'"

they ~ave the salary, there's no way you can divest them

18

of it.

19 MR. R. HARRIS:

20

Such compensation allowances as now or may hereafter

21

be provided by law.

22 JUDGE SMITH:

23

Yes. That's it. That will cover it.

24 MR. SNOW:

25

Or may hereafter be provided by law.

PAGE ]34

R. THOi'1PSON:

2

But you still don't havd a law that does that now.

3

R. HARRIS:

4

Sure. Every supplement that's paid by a circuit or

5

a county and a circuit is a result of a local act.

6 R. DROLET:

7

Do you consider that, as provided by law?

:L t.he question. HIGHT:

That's

10

You've also got--on the salary provisions, you've

..CzI
II ...

got some language too check in relation to this.

@;io... MK DROLET:



There's at least a chance that that would eliminate

! 14 ...

a lot cf supplements .

'~"

%

.. 15 4 MR. THOMPSON; CI

~
16 .~..
za

I wouldn't to interfere with the county supplements

~

17 :::

established now. I have no objection to changing the

18

language as long as it does not--does not do that.

19 MR. SNOt'J:

20

Well, let's see now. In the next sentence, "The

21

General Assembly may authorize any county to supplement

22

tne compensation and allowances of a judge of the Superior

23

Court and District Attorney of the Judicial Circuit in

24

which such county lies out of county funds ... "

25 MR. DROLET:

PAGE 135
I think that's different from the -~i:~:--~:-n-t-e-n-~-e-,--l

2

which would of course be under State funds as provided by

3

law in general act.

4 MR. STUBBS:

5

Mr. Calhoun, I want you to knew how vigorously the

6

district attorneys' representatives are defending county

7

supplements to judges.

8 MR. R. HARRIS:

9

And district attorneys.

to MR. STUBBS:

"z

11 ..
ot..i.l

And district attorneys.

12 ~ JUDGE CALHOUN:

@ll

Is there anywhere else in the Constitution that woul~ ,

..14 .>.-.

prohibit the legislature from"doiny that?

~

:I:

15 ~JUDGE SMITH:

"til
~

16 ~...
oz

Well, let's go one other further . Is there any other

~

17 ::

place that would allow you to spend county tax money to

18

supplement the salary jf this was stri~ken?

19 MR. SNOW:

W

Well, let's go through the second sentence there and

21

after funds, worry about these other provisions here. Now,

22

that--"Provided, ""Pro~ided, however, where such compensatio~

23

and allowances are, on the effective date of this Constitu-

24

tion, being supplemented out of county funds under exist-

25

ing laws, such laws shall remain in force until altered by

PAGE 136

the General hssewbly; Provided.

2

of County Commissioners of Richmond County, 01' the JuJJ8

3

of the Probate Court, or such other board or person as may

4

from tim;:> t.> time have ciiar') of the fiscal t'\ffairs of sai

5

~o~ntYJ shall witho~t further legislative action continue

6

to s~pplement from said County's treasury the compensation

7

a;~d al.lowan':'0s of the ,r,.'dqe of ~~'lp'2rior Court 8f the cir-

8

('ui t

f'\ J;;: ..1 L

said ':'UUllty of nichrnond is a pilrt, by

9

the sum of Two Thousand ($2,000) Dollars uel annum, which

10
11 .'z.". ..'o"....
@ r ;12 ~'"

.

14 >-

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15 ~

"'";;)
16 .~..
za
17 ~

'ar. ()f '1,9 :';tate treasury ..

How. that is just ... ",~tD(l

t'iH' Ge!\8ral Assembly tu increase such COn;;JeLSc' '~iun and a 11 0 v.' a n ,-: e s fro 'U the C0 U ~l t Y t rea S 11 r )' a s a t a v e pro v ide d . "

18 Mh. R. HAREIS:

19

Basic;l.lly tbe ::;up~,r'it)r Court .Judge ;n Richmond County

20

has a constitutional right to $2000 more than any other

21

Superior Court Judge. Because all other supplements, con-

22

GeivabJy, C(ll.l~:: },"~ wij)e(l (,ut by the General Assembly.

24

I'd like to hear the story behind that.

25 MR. R. I!l\RRIE,:

PAGE 137
-~ I t ' . probably very intere.ting, but I move th.t .e

2

stri~e, "Provided, further, that the Board of County

I

3

Commissioners ... " and the rest of it.

4

~.1R. SNOW:

5

Those in favor, say aye. [A chorus of ayes.] 'I'hose

6

opposed, 'no. [No response.]

7 JUDGE CALHOUN:

8

That would leave In, "out of c:ollnty funds"--the first

9

sentence down to the semi-colon, right?

10 MR. R. HARRIS:

III
..Z
11 i=
o...
12 := MR.
@r! 14 .~.z.... 15 ~ III '":;) 16 .~.. az 17 :

Well, I didn't move to strike that other.
SNOT07:
Yes. "Provided, however, where such compensation and allowances are,on the effective date of this Constitution, being supplemented out of county funds ~nder existing laws such lawR shall ... " we can probably handle that up here, "as now or may hereinafter." We could put that in up here

18

in the first sentence--the language that Robin suggested

19

a moment ago, "now or may hereinafter be provided by law."

20

And that would take care, I think, of that provision.

21 MR. THOMPSON:

,

22

jl Wayne, I'm still not sure of this. When you say, as

23

provided by law, you're talking about the General Assembly

24

of the State of Georgia. At least that's the question I'v

25

I got according to this. I don't know whether that extends

PAGE 138 rr-----------------------------------------------------------,
to municipalities or counties or what have you. It may, i

2

but I'm not q~ite sure

3 ~'tR. R. H}\P-RIS:

4

Well, any superior cuurt judge's supplement or any

5

district court judge--any distLict attorney's supplement

6

~as got ~o come as a result of an act of the General

7

Assembly.

8 :1 R. S NOh' :

9

They all do.

10 JTJDGE CALHOUN:

.."%
II i=

That's true, but--

@;;o...... FtR.

R.

HARRIS:
Oh, a

county may

have,

within

its

own

prerogatives,

..14 ~ t;

pay more, but--

:E
15 ~ JUDGE C,l\LHOUN:

~

;:)
16 .~..

I think Judge Smith raised a very pertinent question .

Qz

17 :

Is there any other place in the Constitution where county

18

funds are duthorized--where the county is authorized to

19

spend funds for this purpose because there are very strict

20

limitations on what you can do with tax money.

21 MR. R. HARRIS:

22

Well, I don't think there was any discussion, really,

23

about eliminatinq the sentence that says ~he General Assem

M

bly may authorize any county to--

25 JUDGE CALHOUN:

PAGE 139

Okay. We leave that in. That'll take care of it.

l

2 JUDGE SMI'fH:

3

" The GEne r a .1 P'll Y aut h a r i zed nyc (\ u n t y t ('I sup I' 1 e 111 C11 t

4

the compensation and allowances of a judge of the Superior

5

Court and District ~ttorney of the Judicial Circuit in

6

which such county lies out of county funds"? Leave that

7

one in?

8 JUDGE CALHOUN:

9

Righ t. That tak~s care of it. Omit the rest.

10 MR. S N" vI :

1:z.7: 11 ;::
'~."..

So we're going to omit everythina after General Assem

@-IDE~N 12 '"

bly?
PHILLIPS,

! 14 .t.o.
:z:

Right.

15 ~ JUDGE SMITH:

~

;:)

16 .~..

No. No

Q
:z:
17 :MR. R. HARRIS:

18

No. after, county funds.

19 MR. SNOW:

20

Okay. Very good. Paragraph TI--

21 MR. HODGKINS:

22

Mr. Chairman, does that mean where that colo~ is now,

23

t hat wi 1], j U 3 t bee 011\ e .) per i ad'?

24 MR. SNOv/:

25

That's a perind. That's riLlht.

PAGE 14 a

MR. HIGHT:

2

paragraph II can be deleted.

3 !'I! r:. S N0 I'.' :

4

I Par~qraph II, Power to Abolish OY Reinstate Fees of

I

5

District Attorneys. Take that out totally. It's no lOnget

6

qerman~. Section XIII, QUdlifjcaticn~ of Justi~es and

I

7

Judges. " .'J c per son s h a 11 be a Jus t. j ceo f t 11 e Sup rem e

8

Court, a Judge of the court of Appeals, ~r a Judge of

9

Surerior Courts, unless, at the time or hjs election, he

10

Cl

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11 i=

II

12

0I.'".I.
U

@ r ii: .j%.:. U '"

14 > I'~" %

15 ob

"II
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16 .'%.". MR

&:I

%-c

17

II
'"

shall have attained the age of thirty years, and shall have been a citizen of the State three years, and have practiced law for seven years. No person shall be Attarney General unless at the time of his election he shall h a v e a t t cd ned the a 9 .~ 0 f t went y -. f i v 8 'lEe a i: S . " Is t~hi::; con s i ;.; 't., ' I, t , 'J \'1 '" i t h pro vis i, 0 n s i n - -
S'I'UBBS ,
I don't think so. I think it's inconsistent with

18

19 l-1R. SNOV1:

20

Is it thirty years in the Executive hrticle1

21 l'I.R. STUBBS:

22

I believe it is. And it's teG~ ye~rs & citizen, ~oc,

23

I believe. of the United States.

24 MR. S N () hi :

25

Well, why don't we delete this section totally from

PAGE 141
.,.-------------------------------_._---
the--

2 MR. STUBBS;

3

The only qualification that I would put there is the

4

requirement that he be a member of the Bar and has prac-

5

ticed. What I might do, if this is suitable wlth you, is

6

in the new draft of the Article, put in one on qualifica-

7

tiOl1s. So that if it be lifted bodily out and put in the

8

other one, it would be complete.

9 MR. SNOI1:

10
.."z
11 ~
o......
12 ~
@rl

And if we keep this one in here, it would be consistenc with what's in the Executive Branch. Okay. I'hen, "No person shall be .. " Let me ask you abou;:. up here, 5s there any problem with the first two sentences--or the

14 t>o-

first sentence? Relative to qualifications for the Suprem

~

%

15 ~

Court, Court of Appeals, Superior Court Judges?

lit
";:)
16 ~ DEAN PHILLIPS:

zQ

17 :

Mr. Chairman, one question. Sinc~ we are talking

18

about constitutional language ... "have practiced law for

19

seven years." Now, it's possible for a person to have

20

been a citizen of the State under this language for only

21

three years and have practed law in Istanbul for faux

22

Is thdt ~hat you intend? It says, practiced law.

23 JUDGE CALHOUN:

24
25
lL-

that's what it says. I agree with you. should have been 2 citizen of the State.

it
I
~I

PAGE

_ _ - - - _ _ ..-._ ..

__ .. .... .. -...

2

That's ~hy I broached the question about the fact

3

that th~ person you're talking about in these qualifica-

4

tiol,s really dO'_"5n' +: hClVc' to practice L .... w in this State.

5 MR. H. HAR~IS:

6

Twellty-tive Yl~ars .:.3 just OLlt of school. IIow could

7

he have practiced law for seven years?

8 ~~R. STUBBS:

9

Well, tl.i8 was written back when Y0U could read law

10

in front of a roaring--well, you still can.

"z
11 ~ DEAN PHILLIPS;

.o.....

12 ~

But ill those days you--the earliest things were geare

@/i

to twenty-one years, too, which now would have to be

..14 >l-

reckol.e<l La eighteen ~lnder our own law.

<C %

15 "DEAN COLE:

"Ill:
:;;l
16 ~... o Z <C
17 ~

Mr. Chairman, Oli page fourteen-B is language that, 1 think, ~oes to what you're saying. It says, "shall have

18

been a citizen of and practiced law in the State of Georgi

19

[er seven years .. "

20 JUDGE CALHOUN:

21

Mr. Chairman, 1 move we delete the word, three, on th

22

next to the last line and say, "have been a citizen of the

23

state for ten ynars, ~nd ti)~ll have practiced law for sever

24

years." This is as to judges now on pages seventy-five.

25 MR. SNOW:

PAGE 143

Motion made. Is there a second?

2 DEAN PHILLIPS:

3

Second.

4 MR. 5 NOVi' :

5

Those in favor, say aye. [A chorus of ayes.] Those

6

opposed, no. [No response.] So, that changes the three

7

to ten.

8 DEAN PATTERSON:

9

Do we mean p~acticed law in the State of Georgia for

10

seven years? Is that what we mean? Practiced l3w in the

11 f"z
o...

State of Georgia for seven years? Is that what we mean?

@ - ~12 :: DEAN PHILLIPS: I think we should say that.

14 )0 JUDGE CALHOUN:

$

J:

15 .:t

Okay. All right. Do that.

"m
;)

16 .~.. MR. R. HARRIS:
zco

17 :

Let me pose you a question.

I live in Georgia--I1m

18

born in Georgia. And I move--my family moves me at age

19

twelve. And I practiced law--and grow up and go to law

20

school and practice law in Utah for seven years. And then

21

I move back to Georgia. Can't I run for the superior

22

court judge?

n DEAN PATTERON:

24

Under this language, you can.

25 MR. STUBBS:

Do you want to put Ln, "next precedi~g

PAGE 144
l his apPoint--

2

ment or election"?

3 MR. R. HARRIS;

4

T have been a citizen for ten years anu r practiced

5

law fo~- E;even.

6 .MR. S'.!'UBBS:

7

Well, I did that in Alahama and neve~ lived there.

8

I me~n, I had an official domicile there, member of the

9

Bar; never practiced th~re, but would have been eligible

10 CzI
@j);111 .I..o...-:.. MR.

to run for something. But if you want to make fication, you mean next preceding lection or R. HARRIS:
What is the intention of ~udge C3lhoun?

it a qualiappointment

..14 ~ J'JDGE CA.LHOUN: I-

z:

15 ~

Well, you can say, "shall have practiced law in

"..:
:;)

16 .~..

Georgia for seven years next precedirig his election."

oz

17 :

That would take care ot it.

18 HR. SNO!'l:

19

Is there a second to that motion?

20 ,-1:(1. STUBBS:

21

5~(;ond i t .

23

':'l,os(> in favor, say 2Lye. [A chorus of ayes.] "t'rac-

24

t{cl~d law l:1 Ge'Jrgia for Sf" ,'~:l years next precedinq hi s

25

election."

~1R. STUBBS:

2

Appointment or election.

PAGE 145

4

I think--t"3~'~ ~lready passp~ an~ i t ' s too lat~ to

5

comment on it, but th~t sounds like a pretty stiff re-

6

quirement, especially for a superior court judge, to have

7

been a citizen ten years and have practiced law in Georgia

8

A let ~)f penIle ,'~e--as the Llst example

9

he may leave the State and come back and be verv qualified

10
"z
11 j:
..oa..t..
12 at
@r;~ ! 14 ..x.... IS ~ HR. "at ;;) 16 ~... oz 17 :

--hi9nly quali fled people. Born altd .r aised in Georgia and maybe practic~d law in another Sta~e and been llere three or four vears. I would think there'd be no reason to b~r them from the possibility of becoming a superior ~ourt judge in the Constitution .
SNOi1 :
I could see where in my section it could F'ose some problems where we have people who actually live in Georgia

18

on Lookout Mountain, Georgia in fact, who practice law in

19

Chattanooga. But they're residents of tbe State of Georgi.

20 MR. STUBBS:

21

But all of them are also admittpd in Georgia, toe,

22

aren't they, Wayne?

23 ~JE S NO hT :

24

Well, some of them are but some of them never practic

25

in the State.

PAGE 146

DEAN PATTERSON:

2

What about t~e lawyers who spend eight years in

3

Washington practicirg law?

4 MR. SNOW:

5

Well, that's their business. Tbat wouldn't--that

6

would be different, wouldn't it? If they go to Washington,

7

isn't there a differenue in the citizenship? They don't

8

really become--

9 MR. CROLET:

10

You couldn't say they were practicing law for seven

.."z
11 ~

years .

@);io... MR SNOW:



Well, now they'd be working for the ~overnment ther~.

! 14
!;;
%

They wouldn't be practicinry law at all.

"..15 OMR. R. HARRIS: ;;)

16 17

:.z~o..

Marcus, look at the provision on fourteen-A, which may be sort of a compromise, ~ther than the years. Under

18

this, then, he would only have had to--had he--I would of

19

course favor changing the ten to seven. But at that point,

20

then, as long as he had seven years of the practice of

21

law, conceivably, some of it could have been out of the

22

State since he would only hava to have been a resident of

23

the circuit for three years next preceding his selection.

24

,JUDGE CALHOUN:

25

That section seems to cover it all right with me.

PAGE 147

MR. SNOW:

2

Griffin Bell, if he stays up there as Attorney Gener-

3

a1 for eight years, then he would not be--yes. he would.

4

He's practiced law in Georgia for seven years.

5 MR. S'l'UBBS:

6

Not next preceding his election.

7 MR. SNOW:

8

That's right.

9 JUDGE ClILHOUN:

10

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11 j:
.0.....
..12 !..;.! MR. j: .z.. U
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14 >-

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17

<C


Well, if you take this fouteen-A, you'd have to come back--well, if you tak8 fourteen-A, that would cover it .
Well, I think if you've got somebody who's lived and been a citizen of this State for ten years, dnd if he's practiced law for seven years, before he's going to get elected, he's going to have to spend a little time around in his judicial circuit.

18 ,TUDGE SMI'rH:

19

I'm not in favor of making it too easy. It's kind

20

of like the family. Whenever the Papa dies and leaves

21

everything, the ones away from home raise as much sand as

22

the ones that stayed home and looked after the sick Mama

23

and P~pa, you know. And I think the fellow that stays at

24

home and practices law here ought to have a little advan-

25

tage over somebody who decided he just wanted to come back

and set up stop at his own pleasure.

PAGE 148
------1

2 MR. SHOH:

3

Hell, ~l)at's another point, t.oa. Now, with someone

4

like Griffin B~ll with the reputation he will have accum-

5

latel in eight year up there, should he have the right to

6

come back and run fer judge immediately and probably beat

7

somebody that--

8 MR. R. HAB.RIS:

9

I'm not sure Griffin's soing to do that.

10 MR. SNOW:

1:1

..Z
11 j:

\.\1e1l, T'm just usin r] him as an example.

~...: i SMIT:~u .o.. JUDGE

have to use the rj dieulous to illustrate the

! 14

practical sometime.

Ii;

~

:I:

IS ~ MR. STUBBS:

"'::">

16 ~.az..

Unless yOL: raise jUdges'.salaries, he wouldn't be

~

17 :

intere:::ted.

18 MR. q. H.'\RRIS:

19

What about taking what Marcus has put and also adding

20

another safeguard, which is not currently--go back to what

21

;le had said. "Shall have been a citizen of the State ten

22

years and have practiced law for seven years."

23 MR. SNlHv:

24

He said "law in Georgia fOJ: seven years."

25 MR. R. HARRIS:

PAGE 149

I know. That comes next. " ... and have practiced law

2

for seven years and shall have been a resident of the

3

territory comprising the circuit in which he is elected

4

or appointed for the three years next preceding his elec-

5

tion or appointment."

6 MR. SNOIl:

7

Okay. How does that sound to yoa?

8 MR. R. HARRIS:

9

That also keeps me from going down there and setting

10

up shop and runnill'J against Marcus, without that in therE>.

I!I

Z

.11

j:
'o"

JUDGE

1M

12 :
er~

Hr. Chairman, give it to us again. going to word that?

~ow, how are you

14 .~.. MR ~ :II:
15 ~
I!I
'::">
16 ~ 1M Q Z ~
17 :

Okay. "He sha 11 have a t~ tained the age 0 f th: r ty year and shall have been a citizen of the State ten years and have practiced law for seven years"--

18 MR. R. HARRIS:

19

" ... and any judge of the superior court shall have been

20

a resident of the territory comprising the circuit in whic

21

he is elected or appointed for the three years next pre-

22

ceding his election or appointment."

23 MR. SNOI<l:

24

" ... and any judge of the superior cour~ shall have

25

been a resident of the territory comprising the circuit in

PAGE 150

which he is elected appointed for three years next pre-

2

ceding his election or appointment." Okay. 'Phose in

3

favor, 53.1 aye. fA chorus of ayes.) Those oppos0d, no.

4

[NO respcrir;e.f Okay. That's adopted. f,11 right. No j_'. r

5

son shall be a dist-ict attorney, unless at the time of

6

his election l:(~ shall hav<.. httained twc'lty-five years ()f

7

age, shall ha~e been a citizen of the State for three year,

8

and sh211 huve practiced law for three years next precedin

9

his electi':>n." I'm skipping Attorney Gener~l because

10

"z
11 ...

.'2"..

~) ... 12

III
!:!

zt=

...u~ ,~I P.

14 >-
!;;
z
15 "
..~
;:)
16 ~MF,.
oz
17 ~

Bob's going to come ~p with some othpr language. that probably has nc business being in this--what DA's say about this?
The only big change they'd want would be the years practicG to fiue years practice. STUBBS:
Why not make a realistic age in there too?

Because do the
three

18 MR. DROLET:

19

Yes. Twenty-five is a little unrealistic.

20 MR. S N 0 vl :

21

Y0u've ha1 a couple of circuits within the last ten

22

years that 1 know of where yon only had one person to run

23

und that ~as below the age of thirty up in Dalton, Georgia)

24

is one that I'm thinking of.

25 MR. DROLET:

PAGE 151

Yes. The DA there's under thirty.

2

MR. SNo~r;r:

3

~ell, the prohlem there is that you didn't have any-

4

one else running for it six years ago.

5 MR. HIGHT:

6

I think the problem really solved itself. Really

7

the five years was thought to be the least he should have

8

been in practice. We're running into a bit of ~ problem.

9

REally, somebody could go to, let's say, service for three

10

CzI 11 ~
I0....I..:

12 II: U

@ r ;;:

.~z..

U

14

'"I
>-

I-

'~"

:I:

15 olI

CI
16 .zI::.I.: MR.
0z

'" 17 ~ III

~r four years; have qualified as he left and come back and he's ready to go out as a district attorney, really without the basic qualifications for that parti::ular position . The same thing in relation to a citizen for ten years. Some rcalisti6 viewpoiLt to get somebody here-that's here settled and--
SNm<1:
We could add th~t sa~e language 3t the end of that

18

relative to next preceding his election of appointment.

19 MR. OLSEN:

20

We've got some circuits we had trouLle filling. We

21

have some DA's that would not have been in offi~e now--

22

Catula Circuit, Houston.

23 MR. DROLET:

24

That's where the five really is--cha~gi~g three to

25

PAGE lti2

~m. H-::GlJT:

2

Being ncitizen should be upgraded to some other

3

lar~uaY2.

4 ,JUDGE CALHOUN:

5

Why can't you adopt the samE thing you have on

6

superior courts except lower the age from thirty to

7

twenty-five or fro~ thirty to twenty-eight.

8 tcJ". HIGfIT:

9

That's really better than the seven years.

10 JU::)GE CALI:OUN:

"z
II j: II .2..

And he ought to be a resident of the circuit for at

a.2j least three years also. MR. STUBBS:

! 14 IOA

He'd have his residency even though he was in the

%
IS ol

military.

"a:
::>
16 .~.. MR. SNOW:

z~

17 :

Let's take them one dt a time. The motion's been

18

made that his age requirement be twenty-eight. Is there

19

d second to that?

20 HR. DROLET:

21

Second.

22 MR. SNO\{:

23

Those in favor, say aye. r~ chorus of ayes.] Tho s.'

24

opposed, no. [No response.] And shall have been a resi-

25

dent of the State for five years. The motion is that it

PAGE 153

be five years instead of three.

2 MR. STUBBS:

3

Been a resident or a citizen?

4 HR. SNOH:

5

That's citizen. Those in--second?

6 JUDGE CALHOUN:

7

Second.

8 MR. SNOW:

9

Those in favor, say aye. [A chorus of ayes.] Those

10 1z:1:
11 j: Ill: 2 III
12 ~
@);-IMR.

opposed, no. [No response.] It's adopted. practice law for three years? Five years. that it be five years. Is there a second? DROLET:

And shall The moT.ion

havE is

! 14 t; C %
15 .:I MR. ~
:)
16 ~ III Qz:
17 a

Second.
SNOW:
Those in favor, Adopted.

say aye.

[A chorus of ayes.]

18 JUDGE CALHOUN:

19

All right. Now, Mr. Chairman, I move that we add

20

another provision. "He shall have been a resiJent of the

21

circuit in which he is appo1nted or elected for a period

22

of at least thre(~ Y8a1:'S r1"xl: pr'?cedin'J his elef"'tion."

23 MR. SNOW:

24

Is there ~ scconrl to that?

25 HR. H I GWI' :

PAGE 154

Wt'iVe Liid some p:rob:'ems in the past--fill:L!lg that .-\n

2

the past. We'l.-e pl:obably get.ting away frUll' it now ''lith

3

mcr2 peop:~ coming out.

4 <'lJDGE CA.LHOUli:
5

6

in the last few years.

7 MF. R. HARRIS:

8

!!,)\tl abot't chanqing that thre8 to boJo7

9 MI{. ~3NOH:

10

Shall hav'2 been--okaj.

"z
11 ~ JCDGE CALHOU!-!:
.2..
@);':j". eNOW, VBe,

Do you agree to that?

14 ~I
c
Z
15 .:>
""~' 16 ~...
aoz
17
18
19
20
21
22 23
24
25

" ... shall have been a I esident of til territory comprising the circuit in which he is cipcted or appointed for the two years next preceding his e 1 e c t i(;l1 of appointH\ent." That is ~dopt~d if there is no objection.
Paragraph II, Emritus Justices and Judges. "Chief Justices Emeritus and Justices Emeritus af the Supreme Court; Judges Emeritus of the Court o~ Appeals; and Judges Emeritus of the Superior Ceurts shall be eligible to preside in or over the Supreme Court of Georgia, the Court of Appeals of Georgia and the Supetior Courts of this State. The General Assembly shall prescribe the method or manner in which they may be called upon for temporary service."

MR. STUBBS:

----------- ------P-A-G-E---1-5-5---l

2

We've now got a new title for--we still have Judges j

3

Emeritus, but we've got Senior Judges, too, who ~ce the

I
I

4

old Judges. They're the llew Judges Emeriti. They're not

5

really retired.

6 UDGE CALHOUN:

7

Didn't the Act change it to all superior courts?

8 R. HIGHT:

I
I

9

That's the way I understood it, and made them all

I

!

10

Senior Judges.

"z
11 ~R. STUBBS:

..o.....

12 ~
@r~R' SNOT1\7 :

Even the old ones?

! 14 ...... ~ :J:

We did that by statute .

.".15 ~UDGE CALHOUN: ;:)

... 16 zIII

Did it do that to the Court of Appeals and Supreme

.Q
Z
~
17 CD

Court also?

18 R. HIGHT:

19

No, not for them.

20 R. DROLET:

I.

I

21

So you just change Judges Emeritus to Senior Judges?

22 R. SNOW:

23

Any objection to this section?

24 R. R. HARRIS:

25

Well, I presume you' re changin~ JUdge~~me~~u~J

PAGE 156
- - - - - - - - - - - - - - - -----------, - - ---~-------------------- -----------------

the Superior Courts to Senior Judges 0f the Superior

I

i

2

Court.

3

:'-~K. SNOiv:

4

Right. All right. Senior Judges has been insertec.

5

Any objection to that paragraph--Paragraph II? Hearing

none, it is adopted.

7

Paragraph III, Disciplin~, Removal, and Involuntary

8

Retirement. "Judicial Qualifications Commission. There

9

shall be a Judicial Qualificatio~s Commission. It shall

10

consist of seven members, as follows: two judges"--is

Czl

11 l..o..-..

there any necessity for us to spell out what it shall con-

12 at
~rl~

5ist of? Why can't we say, it shall be as provided by law
1
and have a statute to say who is on it?

! 14 ,JUDGE CALliOUN: l-

'~:z":

15 ~

Well, of course I'm sure this General Assembly

Cl

at

~

16 ~...

wouldn't 6.0 it . Some General Assembly might appoint seven

ell

Z

<l

17 :

representatives.

18 MR. STUBBS:

19

They couldn't do that without violation of separation

20

of powers.

21 MR. SNOW:

I

I

22

"It shall of seven members, as follows: two judges ofl

23

any court of recor, each selected by the Supreme Court;

24

three members of the State Bar, who shall have practiced

25
U-

law in this State for at least ten years and who shall be
-

2 3 4 S 6 7 8 9
10 Czl
11 i=
"0....'.. 12 u"'
@ r ii: j: .z.. U... 14 ..>:..z..-: 15 .: ""'::::t ... 16 zIII III Z 17 "a>' 18 19 20 21 22 23 24 2S

PAGE 157
------------------- ---------1
elected by the Board of Governors of the State Bar; and !

two citizens, neither of whom shall be a member of the

State Bar, who shall be appointed by the Governor. The

members in office on the effective date of this Constitu-

tion shall serve out the remainder of their respective

terms and until their successors are elected or appointed

and have qualified. Thereafter, all members shall serve

for terms of four years each and until their successors

are elected or appointed and have qualified. Whenever any

member ceases to hold the office or to possess the qualifi

cations which entitled him to be appointed a member, his

membership shall terminate, and the appointing authority

shall select his successor for the unexpired term. No

memher of the Commission shall receive any compensation

for his services but shall be allowed his neces~ary ex-

penses for travel, board and lodging incurred in the per-

formance of his duties. No member of the Commission excep

the Judges shall hold any other public office or be eligi-

ble for appointment to a State judicial office so long as

he is a member of the Commission. No member shall hold

office in any political party or organization. No act of the Commission shall be valid unless concurred in by a

majority of its members. The Commission shall select one

of

-'\C~ '1~)"Crs to serve as chairMan."

After we go through and say who the membership should

PAGE 1 ':i8

be made up of, the rest of that is totally statutory. 2 "::UDGE SMITH:

3

Yes. I was going to suggest that too. Nhy can't we

4

provide that by statute?

5 MR. STUBBS:

6

It's provided for now by rules. The Supreme Court

7

has issued rules for the operation of the Judicial Quali-

8

fications Commission.

9 JUDGE Sf-UTH:

10

"z

11

l-
'..0"....

MR.

@r12 .u'.". .tz=.. U '" I 14 >l'~"

%

15 ~

.."'"::)
16 .z..

0z

~
17 'c"o

What's wrong with, provided by statute? SNOW:
Well, this is an area here, Marty, where I think we can get up a--we can have the membership and the fact that there is a Qualifications Commission established in the constitution. And we need a companion statute here to take care of the statutory language. Do you see any objection to that, Judge?

18 MR. R. HARRIS:

19

Why not just vest in the Supreme Court--

20 MR. g. HARRIS:

21

--the power to make the rules?

22 MR. R. HARRIS:

23

--the power to make the rules?

24 MR. STUBBS:

25
lL-

We've already done that. "The Supreme Court shall

.__..._ _....

.

PAGE 159

prescribe rules governing privilege, confidentiality. , and!I

2

practice and procedure in all proceedings brought hereunder. "

3

We've done 1t. Tnose rules were adopted about late ]973

4

or 1974.

5 MR. SNOW:

I

6

Why not just use the last paragraph and the first

!

7

two sentences--three sentences?

8 JUDGE CALHOUN:

I

I

\,

9

Well, of course section (b) on page seventy-seven

i

10

does afford some protection to sittinq judges, I guess,

Czl

11 i=
.'2"..'

and it puts in the Constitution the grounds for which they

@ r IMR. 12 Ill: !::!

can be removed. STUBBS;

14 ..)..-.. :~z:
15 .:

Subsection (b) is necessary to establish the jurisdiction of the commission, too.

Cl

Ill:

16

...;:)
~

JUDGE

SMI'I'H:

zQ
~
17 ~

Shouldn't we use some constitutional provisions to

18

protect the judge?

19 MR. R. HARRIS:

20

Tn an area like this, while I like to shorten the

21

orOb~ langua in the Constitutinn, I dnn't really have any

22

lem with leaving all of this in simply because it deals in

23

an area of judges. And the judges are the ones who say

24

what the law is. And I believe, in this particUlar in-

25

stance, the public might be better served by havina all of

PAGE 160

this spelled out in the Constitution.

2 MR. BEXLEY:

3

You could legislate them out of office, too, without

4

this.

5 MR. SNOW:

6

You're rGferring to Procedure and Grounds here,

7

I aren't you? The language over here in this Paragraph III \

8

that--is it agreeable with everyone to leave the procedure:

I,

I and Grounds in'? And then, the last paragraph--that para-

!

10

I
graph before the last paragraph really gives it under the

..,

z

11 ..

rules of the Supreme Court anyway. Because they can do it

'o.l".L.

12

rr:
.~..

in their

.z
~

JUDGE

SMITH:

u

~J '"I

.14 >-

No.

discretion. It just says

the

Supreme

Court

shall

pass

the

'x"

15 ...),

rules that govern you--any rules or any removals .

'":)
16 I~D ME. SNO"IV:

"z
17 ~

Well, maybe that should stay in there too--all of (b)

18 HR. S'rUBBS:

19

The Judicial Qualifications Commission asked me to

20

bring this up. I haven't cleared this with the DA's over

21

here. His comment was, if the district attorneys and the

22

Attorney General are aoing to remain in the Judicial Arti-

23

cIe, should not they be subject to the Judlcial Qualifica-

24

tions Commission for discipline and removal? The only pro-

25

--.JI vision now for removal for the Attorney Ge_~era~" ~s upon

PAGE 161

---------------------------------1

I
disability or providential cause and it's temporary. And I

i

I

2

the only general provision for the Executive officers--andl

I

I

3

this would reach only the Attorney General at the moment--j

4

would be for a physical problem for a period of six months

5

And the only toerh way to remove any of these people is by

6

impeachment. I throw it out. I don't offer any alterna-

7

tives. I just--he asked that I raise the question. Be-

8

cause by their own judgment, they incorporated Justices

9

of the Peace. They brought in JP's as part of the Judi-

10

ciary under their disciplinary power.

IzII

11 ~ JUDGE CALHOUN:

o...

1M

~~r'J. v

12 ~

O _~ ...

I think they ought ~o be in if they stay in the Judicial Article. I certainly do.

. I
...... 14 )0 MR DRULE'l':

~

:I:

15 .:I
III

There's been legislation to do that in several constit

II<

:::>

i

16 ~
1cMo

tutional amendments--to try and create that kind of thing I

Z

~
17 ::;

in the last few years. There's at ]past a certain senti-

18

ment for that. Would we want to change that to--

19 JUDGE CALHOUN:

20

j' Well, we'd just have to add in (b) the words, Attor-

21

ney General or district attorney, where it says, "A justic

I

22

or jUdrrE' of any court of this State . . .

23 MR. STUBBS:

24

Well, I can report one sentiment that was given me by

25

thp Attorney ~eneral. "I'm an elected offi.cial .

PAGE J.62 - - - - - - - - - - - - - - - - - - - ------------------------------- ----------------- -------)
want to be SUb18Ct to removal by people appointed by the !

2

State Bar." That is a comment.

I

3 JUDGE CALHOUN:

4

I u~derstanJ that. Gut of course I'~m an electeJ

5

otficial 2nd so is Judge Smi~h.

6 MR. STPBBS:

7

8

,Ju dqc ~;)[!i th i. s e lee t.ed from the same cons tit. uency EL: I: he

9

~tt0rney General. I t ' s far less likeJy for a Judge of the i

10
CzI 11 I-
'0.."....
~r ... 12 III ~ ;: .z.. u '" 14 l>I:'z": 15 ~ ":':"> 16 I.z.I.I 0z 17 ''"" MR.

Court of Appeals or the Supleme rou~t tG t h i n 9 '3 in 0 f f i (' ': t hat wo u 1_. d 9 ,-. t p 8 0 P 1 e 11". dud t. I'll In t.h a n i t '",ould be for il .single depctrtr'1ent. head. ! ~hink people in the L l! 9' i s 1 a t L\ r e ,,'10 U 1 d a 9 n~ e wi L 11 me (, n t h It _
Superior Court ,Judge::; are more vulnerable than any of us .
~)r.rUBBS:

18

More invulnerable.

19 JUDGE SMITH,

20

No. Superior Court Judges are mOr vulnerable than

21

any of us to that kind of stuff.

22 :'1[<. R. HARRIS:

23

S~nce I don't halieve the AttorneY ~eneral belongs

24

here in the first place, I would--I would agree that the

25
1.1-

District Attorney ought to be included. I think the

-- ..

.__..

.

--'

PAGE 163
District Attorney ought to sta~-~n th:~~d;-:~~~~~~-icle~a~1

I

2

an arm of the court. And I think the District Attorney

3

oughL to be in0luded in the--

4 MR. DFOLET:

5

For consistency~ if nothing else. That would solve

6

that problem.

7 MR.

8

Well, if Tile inclnde them, thell there should

9

representing them. They would want a member on the Board.

10 MR. DPOI.E'I':

~ z 11 ...
.'o"..

I
I'd like to have some input if this was the group thaJ

@ .- ~JUnGE 'W

12 ~

was to appoint district attorneys.
CMna,

I
I

14 .t.. :z:

nob, if the Attorney General stays in the Judicial

15 0)
~

Article, that would make him subject: to rules of che

'~"

16 .~..
czo

Supreme Court, doesn't it?

17 : MR. STflBBS:

18

He is already as a member of the Bar.

19 JUDGE SllITH:

20

T'm talking about they' could rule and regulate him

21

morc stringently than they do.

22 MR. STUBBS:

23
24
25
lL-

That's correct. As you well know, we are regulated

rather strenuously right now by them.
repeal our opinions.
.

'Ehay constClrl tly

..

"_''''_'.

JUDGE SHITH:

._--_

PAGE 164
.

2

Well, that wasn't the regulation I was speaking of

3

and you know it.

4 MR. STUBBS:

5

No. I might say in that connection, Judge, the

6

judges on the Supxeme Court and on the Courts of Appeals

7

have wanted the Attorney General in the Judicial Article

8

because he was their agent in the Legislature, as Robin

9

anJ Wayne well know, on many issues in the past.

10 JUDGE CALHOUN:

Czl 11 l-
9 ; ;..oll..<..

\'7ell 1'.: made a mot.ion, !-lr. Chairman, tllat. we put them in. I'd say that we put the DA in, period--that we put the Attorney General in if he stays in this Article. I

! 14 I..-. <l :J:
15 : MR.

suppose
SNotrJ:

there's

some

question--

ll<
::>

16 .~.. III

The motion has been made.

Z

<l

17 : DEAN PATTERSON:

Is there a second to that?

18

Second it.

19 MR. SNOW:

20

Those in favor, say aye; those opposed, no. [A

21

chorus of ayes.] All right. We'll put him in. Do we

22

add two new members into the Board?

23 MR. STUBBS:

24

Rather than add two new members, could you reduce the

25

__ members of the Bar to two with a district attorney to be
_ - - ...... ......

PAGE 165
a ve r p poi n ted by the Go nor? As ,~--:~~~~:~-~o~-~--------------------l

2 MR. R. HARRIS:

3

That was my very thought, too.

4 MR. SNOW:

5

All right. Is there any objection to reducing the

6

members of th8 Bar to two, with a DA to be appointed by

7

the Governor?

8 MR. HIGHT:

9

Wouldn't it really be more consistent to have the

10

district attorney appointed by the Supreme Court?

"z
11 ~ MR. SNOW:

..o....

12 ~

Your two judges are selected by the Supreme Court.

@r!MR. R. HARRIS:

! 14

Yes. I think the attorney ought to be appointed by

!;;

~:z:

15 o!

the Supreme Court.

"01:
:>

16 ~ MR. SNOW:

az

~

17 :

Okay. One district attorney, then, be appointed by--

18 II

s~lected by the Supreme Court. Any oblections? If none,

19

we--

20 MR. R. XARRIS:

21

You have to make two other minor changes, like no

22

member of the Commission except the judges shall- hold any

23

other public office. You'll have to put DA in there. You

24

can do all those administratively, I'm sure.

25 MR. SNOW:
Ll-

.-1I

All right.

PAGE 166
- ---- -.-----.-. - -- ------l
What kind of situation are we going to

2

wind up with here in Venue?

3 HR. STUBBS:

4

May I make a suggestion on that? "Venue shall be

5

determined hy law." ~his business of locking it into the

6

Constitution--

7 MR. SNON:

8

--has sure created problems.

9 MR. STUBBS:

10

It create8 problems like crazy.

"z
11 ~ MR. DROLET:

o......

e~)FIMR' 12 ~

I second the motion.
SNOvl:

! 14 ......

The motion has been made that venue be as provided by

<xII

15 ol>

law.

":':">

16 l~D MR. R. HARRIS:

zQ

<II

17 ::

I second the motion.

18 MR. SNOW:

19

Those in favor, say aye; those, opposed, no. [A

I

20

chorus of aye",.] All right.

I.

21 JUDGE SMITIJ:

22 23
24
25
lL...

L can sel:: a raft_ of hilJf;, i-f '''lI '."

c,ln ~j("(~.1 r.=tft of bill,:: ::t:t in by ]egislclt::.>rs v,:10 nave ,l

con s t 1 t_ u P. n t who' s m 0'_ deb c c au s (~ the ve n u e v'" S S 11 C han d S 11 C 11

a wa:,/ d',ij 1"'3 \',anted to change it.

.

_

MR. SNOW:

P-A-G--E--1--6-7----l

2

Well, let's keep it from being retroactive in any

3

particular case. "Venue shall be as provided by law pro-

4

vided however"--

5 JUDGE SMITH:

6

Well, it can't be retroactive.

7 MR. R. HARRIS:

8

Well, all right. Why not put--why not consider if I

9

this would be proper. That "Venue shall be as provided byl"

10

law, but until changed shall be as specified in the consti+

"z

11 .2..

tuion of 1945."

I

~ 12 JUDGE SMITH:

@r~

right. All

14 ..>.... MR . R. HARRIS:

~:z:

15 o=t

Or some appropriate language.

"::>

16 l~D JUDGE SMITH:

Qz

~
17 :

I agree with Bob. Locking it in the Constitution

18

you in a mess of trouble.

19 MR. STUBBS:

20

We don't have the flexibility in criminal cases, for

21

example, JUdge, now. We can bankrupt a county with no

22

problem at all. I think we've got to have some sort of

n

flexibility.

24 MR. S NO \'1 :

25

All right. Is there any objection to having, "as pro

J

PAGE 168

----------1

vioed

law"?

I
of course we've already voted on the other[
I
I

2

one. We voted favorably toward that--but to amend that so

3

~hat it shall remain as contained in the Constitution of

4

1976 until changed or words to ~hat effect

5 MR. R. HARRIS:

6

with an affirmative duty on the General Assembly to

7

make any chan0e as against an affirmative rluty to co~e

8

ha~~ an~ soe11 out all venue.

9 MP. BEXr,'; y :

10
"z
11 i= MR.
'..0"....
.. 12 .u..
i.z=..
U
~J '" .14 >:'~z": ...15 0 ":> 16 .z.. ....Q Z ~ 17

Second.

I t ' s ~:econded. Those in favor, say aye. [A chorus

of ayes.]

Those opposed, no . [Nc response.] Adopted.
itl "The right of tri~ by jury, (c>xcept where

thi~ ln~ is otherwi'-:.e p,nvided in

"onstituion, Ahall remain

violate, but the General Asse~bly may prescribe any number,

not less than five, to constitute a trial, or traverse

18

jury, except in the superior court." Why don't we just

19

put a period after trial or traverse jury?

1

20 MR. DROLET:

I

21

So moved.

I I

i

22 MR. STUBBS:

23

Sec on (1.

I

I

~~r~_u_s_S_i~:"l ~_~o 24 MR. BEXLEY:

25
LL

You're

going

t

o __

_h_e_-3._r_a_

_l_o__t _o__f

_r

tol s__

h L_l_i__ d

-._--. --P-A. -G-E---1--6-9------l

2

I Hell, that ;;j1J just allc,'.\ it to De changed by law.

3

You'd still have not l~ss than five.

4 JUDGE SMITH:

5

I think you should add in tnere, "except in capital

6

felonies."

8

Except in capital felony cases. Yes. You'r8 right.

9 JUDGE SNITH:

10

T have no compunction about civil cases with five

.."z
11 ~
....o....
12 u
@ r i;: i= ~ MR. u ."

jurors or six man's life on
SNC1vl:

juroros, but capital felonies, that's a the line. Let's 'Jive him twelve of them.

14 >t;-;

Is there 8ny objection to that? Okay.

~

:I:

.".15 "MR. s'rUBES: :;)

16 .~.. az

Can I throw a thought in? I don't know whether it

<II

17 ::

belongs in this one now, or not. You know one issue that

18

has been raised with the General Assembly, I know, since

19

197] or 1972, has been circuit-wide jury. And a couple of

20

bills have even been offered for. sta~e-wide juries, either

21

trial or grand jury.

22 .JUDGE CALHOUN:

n

Well, with your venU6, you take care of that if you

24

l~ave it like i t is. It requires a county jury, of course,

25

to be tried in a rounty, which you've just eliminated, un-

. _ - - - - - - - - _ .-.. - - - . - - - _... _.-.- .
less it's sumewhere else in the Constitution.

PAGE 170

2 MR. STUBBS:

3

You may have solved the problem.

4 JUDGE CALHOUN:

5

I think that on the right of trial by jury, you might

6

say, ~shal1 remain inviolate in criminal cases and on de-

7

mand in civil cases.~ We have a lot of cases--it's that

8 9 10
Czl
11 :t
a - .o..... ~12 ~

way in divorce cases now nf course. I don't know what the

I' cunstitutional prolTision is, but it s,;re would help you in

I

making up a court calendar if you knew whether you

I

goinS to have to ha.ve a jur:y trial or not. If the guy

didn't make the demand, you could set it up on a non-jury

calendar in civil cases.

14 ..>...-. LTUDGE SHITH:

%

15 ~

How did you say that ggain, Marcus?

Cl
'~"
16 ~JUDGE CALHOUN:

az

17 :

I'd say it should always, without a

re~uest,

in crim-

18

inal cases. We certainly should preserve the right of

19

trial by JUTV. But in civil cases, only on demand.

20 JUDGE SMITH:

I'

21

I agree with that.

I

I

22 MR. SNOW:

I
I

23

I
I don't see anything wrong with that. In criminal

I

24

cases, and on demand in civil cases. Any objection to thatl

25

language?

. . .- . - - - . - -

..

....._....-

I I
. _ . . . 1I

JUDGE SMITH:

2

Shall remain inviolate-~

PAGE 171
------l
I
I I

3 MR. SNOW:

I

4

--in criminal cases, and on demand in civil cases.

5

Okay. Adopted, then. Over on the next page, Selection of

6

Jurors. "The General Assembly shall provide by law for

7

the selection of the most experiences, intelligent and

8

upright men to serve as grand jurors, and intelligent and

9

upright men to serve as traverse jurors." What are in-

10

telligent and, upright men?

CzI

11

;::
III

JUDGE

Sr-tITH:

.2..

12 III

Why don't you just say, "The General Assembly shall

@rl

provide by law for the selection of jurors." and just let

14 !......

the rest be statutory .

<:zC:

15 ~ MR. HARRIS:

CI

III

;:)

16 .~..

Shall provide by law for the selection of persons to

Q

Z

=<C
17

serve as grand~and traverse jurors.

18 MR. STUBBS:

19

We can't decide that anymore anyhow. The Federal

20

courts are deciding it for us.

21 JUDGE SMITH:

22

That's right. We can't decide if they're experienced~

23

intelligent or upright.

24

MR. SNO~l :

I

I

25
IL-

A_I__l _r_J._"9_h_t_.__p_e_r_s_o_n_s_-_t_o__s_e_r_v_e_a s q~~n d an d_~_r_ave~s e~

PAGE 172
jurors, period. For the selection of t~e~ost eXP:ie~~::-~1

2

persons. okay. Any objection?

3

I Paragraph III. "It shall be the duty of the Generall

I

4

Assembly by general laws to prescribe the manner of fixing

5

compensation of jurors in all counties in this State."

6

Well, now, can't we take that out and just say up there in

7

the very top, "and to rpovide for their compensation"?

8 JUDGE CALHOUN:

9

That's all right.

10 MR. SNOW:

Iz:'

@)r11 12

i=

.'0.."... .~..

DEAN

Okay. PATTERSON:

.iz=.. .u..

You deleted the rest of that?

I

14 ..>....- MR. SNOW:

:I:

15 ~

What courts may be abolished? "All courts not

I:'

16 :.'z;".).

specifically mentioned by name"--that would be a matter

0z
17 lIll

that will ad~ress us later.

18 JUDGE CALHOUN:

19

Why have it in there? It doesn't have to be in there

20

You've got the power anyway provided in the Constitution.

21

v!hy ';11l. it to their attention that they'v(~ got the power?

22 HR. SNchv:

P_~_. :an_~o_~~a~~ n~,_v_a_Y_._J 23

vie don't have--the Supreme Court Cost; Pauper Oath.

24

Y

25 u-M_R_'_S_'_:_:_B_:_:_:_'_t_T_l_e_'"_c_1.__t_h_a_t_J_"_l1_C_h_8__'

Th_e y

a

Can do that by rule.

PAGE 173 ---------------"1
i

2 MR. SNC/vJ:

3

,:;J<:ay, folks. We--when do you want to meet again?

4

Friday about three weeks from now? How about the first

5

week of Sept.ember.

6 MR. STUBBS:

7

You've got a Labor Day weekend on the second. You're

8

probably going to have a lot of ppople taking off then.

9

SNOW:

10
z~
11 ~ MR.
.2..
12 III ~
@rl 14 ~I MR. :I: 15 ~ "III ~ 16 ~... MR. oz 17 :::

The whale week? STUBBS:
Well, no, on Friday. You said Day coming the following Monday. SNOW:
What about the 9th? STUHHS:
Ten o'clock again?

Priday.

With Labor

18 MR. SNOW:

19

Ten 0' clock.

W JUDGE CALHOUN:

21

And you will expect a subcommittee report at that

22

time?

23 MR. SNOt\':

24
25
Il-

I would not want to be in a position to rush the sub-

committees. We woulrl like to have at least a preliminary

__.

.__.._ __.

--.J

2
3
4
5
6
7
8
9
10 CzI
11 ;::
@J);;'..o.".... 14 ..!.... <l :I: 15 4 '"" ;:) 16 .~.. Q Z <l 17 :
18
19
20
21
22
23
24
25

report.

PAGE l7/t ---------------- --. -----------------1
If it could be finalized, that would be fine.

But we're not in that big a hurry. These two subject

areas there are very important and so important that such time as is necessary. probably as soon as we get those

in, we'll be better off because we're' going to have oppor

tunities to he heard before the entire Committee on those

recommendations. The meeting is adjourned.

[Whereupon, the hearing was adjourned at 3:30 o'clock,
tIJ. m . ]
C E R T I FIe ATE

I hereby certify, as the court re?orter, that the

statements that appear in the proceedings were taken

stenographically by me, and thereafter reduced to type-

writing by me, and that this transcript is a true and

accurate record to the best of my ability.

~~./l7~
C~ DARLENE F. MCMURRY,
l'~~"my r"L'i~, Georgia, Slale-at!M1i
l:",'';'''s /."'),, 3, 1980

, 'INDEX
Committee to Revise Article VI Full Committee Meeting Held on Aug. 5, 1977

FULL COMMITTEE MEETING, 8-5-77

Proceedings. pp. 2-4

Section I: Judicial Power

Paragraph I:

Judicial Power of. the 'State. pp. 5-13

Paragraph II:

Unified Judicial System. pp. 13-20

Paragraph III:

Judges; exercise of power outside own court; scope of term "judge". pp. 154-156

Paragraph V:

Uniformity of jurisdiction, powers, etc. pp~ 112-115

Section II: Venue. pp. 166-168

Section IV: Superior Courts

Paragraph I:

Jurisdiction of Superior Cour~~. pp. 104-106

Section V: Court of Appeals

Paragraph I:

Composition of, Court of Appeals; Chief Judge. pp. 80-81

Paragraph II:

Panels as prescribed.pp. 87-90

Paragraph III:

Jurisdiction of Court of Appeals; decisions binding. pp. 81-87, 103-104

Paragraph IV:

Certification of question to Supreme Court. pp. 90-100

Paragraph V:

Equal division of court. pp. 100-103

Section VI: Supreme Court

Paragraph I:

Composition of Supreme Court; Chief Justice; Presiding Justice; quorum; substitute judges. pp. 21-42

Paragraph II:

Exclusive appellate jurisdiction of Supreme Court. pp. 53, 6i-70

Section VII: Selection, Term, Compensation, and Discipline of Judges

Paragraph I:

Election; term of office. pp. 42-61, 86

Paragraph II:

QualificatiOns. pp. 140-154

Full Committee Meeting 8-5-77 Page 2
Paragraph V: Compensation and allowances of judges. pp. 132-140 Paragraphs VI: Judicial Qualifications Commission; power; composition,
VII: Discipline, removal, and involuntary retirement of judges, and
VIII: Due process; review by Supreme Court. pp. 156-165
SECTION VIII: DISTRICT ATTORNEYS Paragraph I: District attorneys; vacancies; qualifications; compensation;
duties; immunity. pp. 108, 122-140, 160-164
SECTION IX: GENERAL PROVISIONS Paragraph II: Disposition of cases. pp. 70-80
ARTICLE I: BILL OF RIGHTS SECTION I: RIGHTS OF PERSONS Paragraph XI: Right to trial by jury; number of jurors; selection and
compensation of jurors. pp. 168-172
SECTION II: ORIGIN AND STRUCTURE OF GOVERNMENT Paragraph IX: Sovereign immunity of the State from suit. pp. 109-115
ARTICLE V: EXECUTIVE BRANCH SECTION III: OTHER ELECTED EXECUTIVE OFFICERS Paragraph IV: Attorney General; duties. pp. 107, 115-122, 160-164

STATE OF GEORGIA
SELECT COMMITTEE ON CONSTITUTIONAL REVISION SUBCOMMITTEE ON THE JUDICIARY
Hearing - Room 133, State Capitol Atlanta, Georgia September 9, 1977 10:00 o'clock, a.m. Presiding Officer; WAYNE SNOW, JR.

------'1
I

,
1

BRANDENBURG & HASTY
S( :ILNTIHC REPORTING 3715 COLONIAL TKAIL, /.)OUGLASVILLE, CEURCIA 30135
942-0482 DEPOSITIONS - ARBITRAl IONS - CONVi:NTlONS - CONFERENCb

_ _ _ _~

,

. _ , __

.. _..

JI

j',\(;L 2

PRO C E E DIN G S

MR. SNOW:

J I,

All right, folks, I think we will commence the meet-

II

,1 !!II

ing. A quorum is present. First of all, let me comment

IiI!:i
'i

about some of the tentative things that we agreed on at ouXj

Iii

() II

initial meeting that you have received copies of. There

,i

7!

are certain phases of it that are going to give us some

problems from just a technical standpoint. But I 1 ve asked

Marty and Terry McKenzie and Cindy with the Legislative

Counsel's Office to work on this. Let me just give an

example--say, on Judicial Qualifications Commission, in

that area we took one of the members away from the State

Bar. Well, we've got to define who it is we take away.

So that will have to be in there. So they're really tech-

nical problems and we'll let them work on the language and

bring that back before the whole committee.

There were two subcommittees that were appointed at

the last meeting and I will proceed by requesting the sub-

committees to make a progress report. Dean Ray Phillips

is representing Dean Beaird here and, Dean, I understand

y'all have met--Dean Patterson and the members of your Com-I I
mittee. Let's see, Dean Cole is not here, is he?

23 DEAN PHILLIPS;

24

No, sir.

25 MR. SNOW:

PAc;E 3

All right. Would you make a report then--a progress

2

report of your committee and then we will have questions

Ji

possibly and some discussion on that.

4

i I

DEAN

PHILLIPS:

I

') II

Thank you, Mr. Chairman.

The subcommittee appointed

" II

by you was able to hold its first meeting on Tuesday of

7

this week. Unfortunately, Dean Cole from Mercer was not

able to attend but Dean Ray Patterson, Ralph Beaird, the

person named to chair the Committee, and I met with Mr.

10
"z
II ....
'o.<".1.-
]2 ~
@r~~
14 ..>....-. :r 1'\ ~
"':">
16 ~
;:;
z 17 ~

McKenzie, Mr. Hodgkins and others on Tuesday. The subcommittee agreed at that particular time to ask the staff members and others with available information to furnish us particularly with statistics for the recent past, showing in fact what the Supreme Court's case load looked like in numbers and categories of cases coming to them under the existing law as well as the Court of Appeals. It was agreed by the members of the Committee that drafts would

IX

be prepared; merged into a single draft to present to this

19

Committee. The timing was based, in almost total part, on

20

the submission of the requested statistics. As I think,

21

certainly the Chairman and other members of our sUbcommitt~e

22

are aware, we received this morning a mass of information

containing, I believe, what we were seeking by way of sta-

In addition, we received the documentl
i I
prepared and others back in 1973. We i

'1

II

will--I'm sure I state Dean Beaird's position and the

\1

II ")

"

other members of the committee--absorb this information as

II

;: ':

quickly as possible. Dean Beaird asked me to a.a.kedme-to,

4

advise you and the members of this Committee that every

~

effort would be made to have a draft in the hands of the

h

members within ten days to two weeks.

: MR. SNOW:
I

I

When do y'all propose--when did you say you were

;!

9 ii I:

going to meet again?

10 DEAN PHILLIPS:

We have not set a date but we have an understanding

of individual work that proposed language will be drafted.

We would hope that that will be done within the week for

circulation within the Committee and from that a meeting

would be called and a final draft from the subcommittee

would be prepared. We would certainly shoot according to

Dean Beaird's expectations and I believe this was concurred!

18

in by Dean Patterson at the time, within a two-week period

19

now that we have the statistics we requested.

20 !MR. SNOW:

21 IiI

Are there any questions from any members of the Com-

I

mittee? Judge?

II

23 'IIJUDGE NICHOLS:

.'1 Ii

Let me ask one question. Dean, did you get a copy of

L__:_ _ _ 'I
25

:~~~:~ ~~:~_ ~_~~~ ~~_~t I to all of you?

One of our interns
-- -~..._-!

n---..--..-.-----.- -.

PAGE 5

Ii

has been working over there and did an excellent job on

2 I!

the Supreme Court only, now, about the caseload. And I

.~ !I i

had that--

4 il DEAN PHILLIPS'

'I

'I

5 !I

Is this the report dated September 1977, Judge?

,) I:1i JUDGE NICHOLS:

7 I'I

Yes, that's it.

x IIIi DEAN PHILLIPS:
q

~)
'il

Yes, sir, it is included.

10 JUDGE NICHOLS:

"z

11 ~

I just wanted to be sure that you had it.

o

0..

0='" ~12 ~DEAN PHILLIPS: Yes, sir.

14 ~I MR. SNOW:

<l :I:

15 ~

Any other comments or questions?

"tit
:>

1(, '~" JUDGE SMITH:

Q
z

<l
17 ~

Did you get everything from the Court of Appeals that

1k Ii

you asked for?

]4 I'Ii DEAN PHILLIPS:

20 Ii

Yes, sir.

II
21 II loIR. SNOW:
II

Well, we'll proceed into another area where we should

:: II

have some very interesting comments and questions. Marcus,~

PACE 6
Yes, sir. The subcommittee on trial courts met last week--a week ago today--and we were instructed by the Chairman to submit proposals, plural, not a single proposal. And we had read or studied in some depth the sYStems in Kentucky, North Carolina, Florida and Illinois, all of whom have in recent years revised their systems. We submitted two plan.--we studied two plans and you have before you a draft of the two separate plans. One, which I call number one, follows more closely the Illinois plan than it does the other states in that it creates only one court. This plan proposes to have only one trial court in the State of Georgia. If enacted or adopted, it would abolish every trial court with the exception of the Superior Court. The Superior Court would be divided, essentially, into three divisions: Judge of the Superior Court, who would have the jurisdiction essentially that they now have 11 Associate judges of the Superior Court, which would take in the jurisdiction of the Probate Judges, the State Court Judges and Judges on that level and Magistrates of the Superior Court, which would take in Justices of the Peace, Municipal courts and all courts on that level. I think one beauty of the plan or one asset it has, that it would create in each county only one place in which a lawsuit could be filed. In my own county of Thomas, I think there are probably ten places that you can go to file a lawsuit.

r-"'--

I

In this plan, there would be only one. Now, the plan does

I1

I believe, protect all existing officeholders because it

I

I.
3 :1

provides that all State Court Judges, all Probate Judges

Ii

4

I!
II

and Judges on this level would become Associate Judges of

5 'I

the Superior Court. And all Justices of the Peace and so

6I

forth would become Magistrates of the Superior Court. It

i

provides that they would be--have, for the time being, the

8

same jurisdiction they now have. They would be compensate~

9

in the same manner and from the same source they are now !

\0
"z
11 ... O' o... ~
12 ~
(~ '-:~._'"r2/~ -~I 14 .>..~ :r 15 .:> 'o"X ~ 16 ~... Q Z <l: 17 ~

compensated, but that the General Assembly by law could

change the method of their compensation. The plan, insofa~
!

as Superior Court Judges are concerned, institutes the

I

I
MIssouri Plan which means of course that a Judge who wishes!

I

to succeed himself must so certify and run on his record I

Insofar as the Associate Judges of the Superior Court are

concerned, they would run in a non-partisan election, that

is, they would submit themselves to the Board but they

\8

would not run as Democrats or Republicans. They would be

19

in a separate place on the ballot.

20

The jurisdiction--we give the duties and the responsi-

21

bilities of the Associate Judges and the Magistrates, we I

say, would be set by the Judicial Councilor the Supreme

23

Court. Now, we haven't gone into-~the subcommittee on

24

trial courts--the make-up of the Judicial Councilor who

would be the administrative head because that would be a
!---_.__._---- ---'-- --- -_ ._--_ ....-

r
II
,I
2 II II
.\ I:

--that's the function of the total Committee. The other plan, the--it is really similar with the exception that you have two tiers and the district court would occupy the

,+

same level that the Associate Judges of the Superior Court

occupy in plan one. They would serve on a district-wide

I
H ,"
'J 1\
i
10

basis; the district would be the same as the circuit.
plan would leave the circuits as they are now and would pr9-
I
vide of course that they could be changed by law. I be-
lieve plan--it says that the number of judges and so forth
could be changed by the legislature upon certification by

the Supreme Court. A number of states have this plan now. i

I know Florida does and the Supreme Court cannot create a

new judgeship; the legislature caftnot create a new judge-

ship without the recommendation of the Supreme Court and

IS ~
C>
cr. ::>
}i' .~.. o Z <l
17 ::::

they do not have to create it if the Supreme Court recommends it. It takes the approval of both bodies to create a new judgeship. Briefly, that's the report that we made.

IK II

We have it in detail; we can go over it in detail. Our

i 19
20 I:1i

committee did not take any vote on expressing a preference.
i I personally prefer the first plan because I think if you'~e
I

21 11 I

you're going to unify the courts, we ought to really unify

') I'\I iI

them. And I don't--I think that the system such as they

\1

23 II
Ii

have in Illinois is working well there according to, I be-

II 24 \1

lieve some material that all of you have--a report by one

" IL_:fthe_jUd9~._. ~_~_~~_~~se __

since it was originally adopted

1--------------

PAGE 9

I

in Illinois, I believe in 1964, they've changed it so that ~

I

it no longer has any Associate Judges. All of the judges
2 II

3 Ii

are Superior court Judges. And I would think that even-

,I

4 Ii

tually that t s what would happen in Georgia. But for a

5 II

transitional vehicle, it seems to me that the plan one is

a workable thing and one which has a reaonsable chance of

: II

I

being adopted.

8 II MR. SNOW:

9 Ii

Can you give us some idea as to how your Committee

\0

felt about the two plans?

I0:zl:

II ~ JUDGE CALHOUN:

.oQ...

j2 ~
(~ @): . _~

We didn't take a vote on it but we're all here, I believe. We could take one now.

14 ~ MR. SNOW:

~
:I:
IS ~
":'>" 16 .~..
Q
Z 17 :;;

Would you? I would kind of like for you to make a recommendation, if you would, as to which plan we might ought to proceed with as such. And then of course anyonet~

I

lIS

that's got suggestions about this--

19 JUDGE CALHOUN:

20 I

Robin's here, Ms. Moran--Hansel Harris isnlt. Does

It

21

he have a representative or do we have one here? We have

n II

two missing.

23 IMR. R. HARRIS:

We should have done that.

24 II
l_ 2<;

I think of those persons who expressed an opinion at
the meeting, Judge Calhoun, my recollection is that the
.. __-.-1

PAGE 10

rr-~-

"II

sentiment was towards the one--the single-tiered plan.

ii

II

2 II JUDGE CALHOUN:

'i

'I

-' Ii

What was your feeling Ms. Moran?

4 MS. MORAN:

5

I think tend to favor the two-tiered plan for a num-

b Ii

ber of reasons which mayor may not be valid.

I

7 IIII JUDGE CALHOUN:

!:

8

We can poll them by telephone.

10
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... II >eor--: o.
12 ~
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well, why don't we--I do think we need to get into it , on an individual section by section basis. So, in doing this, Marcus, I think I'll just let you go through and take: each section and we will have comments on each section of

14 >-
>-

it.

'<"l

:I:

15 .) MR. STUBBS:

"or:

:>

16 ~...

Are we going to discuss--

zo

17 ~ MR. SNOW:

IH

Yes, Bob, let's take your matter up first. You've

19

got to leave.

MR. STUBBS:

21

I might say, if I could, Mr. Chairman, that the pre-

liminary report made to the Judicial Council tracks pretty

23

much plan one. That was made by Judge Smith's Committee--

24

one trial court.

,
.-1

PAGE 11
2r~--w~.-m:::1:1::~:y~:.~:::m::.::: t::: :::O:::::::O:O::::~

3 IiI~

Am I correct on that?

'I4 MR. R. HARRIS,

5 II

Yes, sir.

f> I11i MR. SNOW:

7I

All right. Bob?

8 II MR.
9 II
10
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STUBBS:

,

i
I was asked at the last meeting to submit alternative~

I

for the inclusion of the Attorney General either in the

Executive Artilce or in the Judicial Article. And you havJ

a draft of the two of them with some comments that might

explain, or at least clarify my thinking on the matter

--- 14!...... :r IS .,.),
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that's included. Much of it, as the commentary indicates, is already the provision in the Constitution, although in the duties section, there is an inclusion as constitutional language what is largely spread through the statute~.

Iii

I recognize that this is normally contra to the desired

19

language of a Constitution that it be as limited as poss-

20

ible and I may be more of an advocate than an objective

21

analyse of this thing. But it seems to me that if the

22

Attorney General has the the position that has developed

over the years of substantial independence from domination

ir--Ii
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18
19
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21
22 II
23
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I'ACF 12
in language in the Constitution. Many of you here--many of you I know in the General Assembly over a period of years--recall when the Attorney General was essentially the creature of the Governor. The Governor made most of the appointments; pretty much dic\tated the manner in which the office was operated. So I don't know what would be desirable. I might also say that, in connection with the relative location in either an Executive or JUdicial Article, that depending upon the way in which the office is described, it really is sort of inconsequential. The concern, if you place the Attorney General in the Executive Article, is that he would be regarded as the Governor's man and might lose some of the independence that has developed over the past few years. Historically, the Attorney General from 1777 until 1945, was in therudicial Article. strangely enough, Governor Arnall who had just shortly before been Attorney General moved it or was instrumental in having it moved in the 1945 Constitution to the Executive Article, or at least parts of the role of office. Now, the two drafts that I have with the commentary, Paragraph I, the Term of Office, is essentially that which is now in the Constitution. There might be some changes of style depending upon which Article this provision was included in. Paragraph II is, in part, in the constltut_ion--in substantial part incorporated from the

PAGE 13

.2

Concstitution the independence from the Executive of the

3 !j:i

Attorney General. If the Attorney General is made sub-

4 I'II

ject to Executive regulation and investigations are con-

II

::. Ii

ducted at the whim of the Executive with little or no re-

()

straint anywhere. Under the present procedure where the

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18

restraint--the power is given to the Attorney General but the General Assembly may regulate by statute and by appropriation an adequate check or a check--I consider it adequate--exists to restrain the Attorney General from a witch hunt or any type of individual sally of his own. I don't know that I need to belabor the content of that be cause I've set it out and explained where it comes from. I think as honestly as I can say, none of it is newly made up
Paragraph III, the qualification provision, which again could be applicable no matter which Article the office is placed in, has been slightly modified to make it

jl)

comport with the qualifications of a Justice or Judge

20

rather than the earlier--the younger age which now attains

21

which would for practical purposes be almost impossible to

221

attain in any event.

23 I'

Paragraph IV is the additional paragraph that would

25IL_~n theJUdicia:~rticle~iCh, 24 I

be added in the event the Attorney General were retained as I understood, was the

PAGE 14
I will of the committee or at least the sense of the Commit-

2I

tee, that if he be a judicial officer that he be subject

3

to the discipline provided for judicial officers. And so

4

that Paragraph IV would provide for it, but at the same

S

time retain the power of the General Assembly through im-

b Ii

peachment and the power of The General Assembly to provide

i\

otherwise for removal. I might say that up until this I i

8

last Constitution was added, the only legislative provisio~s

9

for removal other than by impeachment of an officer in the

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Executive, were in the case of the Attorney Genera1--a

legislation I might add which was proposed by the Attorney

General.

I

I

That is, Mr. Chairman, a rather rough summary--explan~-

!
tion. I would merely again indicate the preference of the

present Attorney General that as much flexibility be pre-

served for him as possible. As I indicated last time, we

have some problems with separation of powers. If you move

18

the Attorney General into the Executive branch of govern-

19

ment, this would possibly restrain his capacity to work in

20

behalf of the courts as opposed to before the courts, and

21

could equally restrain his capacity to be of significant

22

service in the General Assembly.

23 iMR. SNOW:

24

All right. Does the Attorney General then have any

Article?

I
i

I

__" .

.-1'

r----------------------.---------- ----- ------._- ---
II MR. STUBBS:

PAGE 15

2

He has read these and approves them and prefers the

I

3I

Judicial Article.

I:

!i 4 MR. SNOW:

i

:) I

Are there questions?

I
(, II MR. HIGHT:

II

I've got one comment, Wayne. We've been looking at

II

S IIIi

it from a very practical point of view and I think the

q II

Attorney General falls in a bit of the same situation as

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your district attorneys and of course you'll have the solicitors in the same position--is every--I've had four calls this last week in relation to a district attorney not presenting a case to a grand jury because of some particular individual had called the Governor; gone through several provisions to attach a district attorney because
~!vl'
he didn't present a case the she took a warrant out for to the grand jury. The reason he didn't is because we

Ib
II

had evidence of the fact that she had given permission

19

for an individual to actually remove certain articles from

20

an area. We had attacks on the district attorney, for

i

21

example, you got Hinson McAuliffe involved in a pornograph~I

n

matter here in Atlanta. And people who would be very much

23

against Hinson McAuliffe as a prosector doing anything in

24

this particular area, that would like to spend a lot of

.25

money to remove Hinson McAuliffe if they could from this

----- _. -- .j

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- - --------~-~----~~-- -----~ -~

~ ~--~~--- ~

PAGE 16

particular office. The Attorney General is going to have

2

the same problem in this particular regard. I can see

J

hundreds and thousands of cases or complaints being made

4

in both these offices in that particular area. And I

5

think that we're in a position perhaps that we're subject

to abuse that a judge would never be sUbject to under the

7

same Article. Because he doesn't initiate cases. Ee's in

a different situation. You're talking about the quality

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24
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of the person in relation to what he does, not exactly what he does in relation to his particular job, that you
hear complaints about. And I think the Committee should look very seriously if you want to provide a method as the Attorney General had at one time, to remove him from offic~
I
if he is incapacitated and disabled. Perhaps an alterna- !
tive source, rather than having the Qualifications Committ~e
!
just deluged with complaints--and they'll get them all the
time--it just looks to me like this--I understand what
I,
Judge Calhoun said before, but I think we're talking about
!
a little bit of a different ballgame because the prosecutorl and the Attorney General has to initiate a lot of cases.
Every criminal case we've got in the court system is becauSe the prosecutor has initiated or the Attorney General
Is involved as a combatant on the other side. And you're
talking about a situation that perhaps should not be allowed to come about in a Judicial Qualifications Commission.

11

-_ ..... .. _-~-------, _,._-------~--------

---,--~_._-._-_ .._--_._----._---_._._--

11

Perhaps if impeachment is not the

I,I'

alternative,

PAGE 17
~ ~-----'l
there ought!

2 Ii

to be a more palatable alternative than just have a series

II

3 /1

of complaints filed for the Committee to have to look at.

I'

4 !I MR. SUTBBS:

5 II

Tony, your comments, though, go more to the workload

6I

of the Judicial Qualifications Commission than anything

7

else?

HIGHT:

I think so as well as I don't think the prosecutors

10
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have any problem about we've got somebody that's not quali4 fied or has a problem, and we've had some problems as you know of having some forms of removal. But we don't think that--we're going to be talking about a--just a massive

14 .>.-.

caseload, complaints filed, investigations going on all

':"x:

15 ~

over the State on just about every case.

"'::">

1() m~MR. STUBBS:

Q

Z

17 ~

Well, I can't speak for the district attorneys and I

III

wouldn't presume to. As far as the Attorney General is

19

concerned, he says, "I'm an elected officer and any way

20

that the people in the Constitution or by law want to pro-

21

vide for examination of the way I do my business, that's

22

fine." And that's why we incorporated in this draft not

23 II

only the provisions now attaining for temporary removal

I

lI__ 24 I
25

based upon physical disability or something that might be

~~~vide~

for

that,

but

to

embrace

the

same

sort of

!
standard!

.

.----J

PAGE 18

of objective beha~ior that we expect out of judges.

SNOW:

Now, let me ask this question. Now, if we fail to

say anything, like for the DA's, about the Qualifications

Commission and have nothing in the Constitution about that

we would then not be in a position where we would prohibit

i,
II

-, Ii

by law to set up a Qualifications Commission for the DA's?

II

K

I
i:

MR.

HIGHT:

:1

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No, as a matter of fact, in several cases--I'll give

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you an example of one where the district attorney was indieted down in Albany and tried and convicted. He was removed from office from the particular position by the judge--the fact that he was simply disqualified to represent that particular area. And the--we could have it. But I'm just saying we're going to have--you're going to talk about the man who's going to lead every criminal case,!
I
you're going to have complaints filed in just about every i

18

case.

I

19 MR. SNOW:

I

I I

I

20

Of course, on the other hand, it might be an excellentl

I

21

opportunity to improve the distr~ct attorney's office

I

22

throughout the state.

23 MR. HIGHT:

PAGE 19

You have nowl in the Constitution unless I'm mistaken~ a specific provision that authorizes the General ASSemblY-~

I know for Executive officers--to provide for the suspen-

sion of duty of any Executive officer and, at one time,

there were provisions for the suspension of Comptroller

General and the Revenue Commissioner. At the present time

the only one directl~ designated by statute is the Attorne~

i

General.

I

HIGHT:

The thing really--we don't have any problem with

being, you know 1 judged in this area as to somebody's that's disqualified or has a problem. What we're saying

is that you're going to have--I think a lot of baseless

cases are brought against judges, you know 1 just about everything in this particular point. That's going to be

multiplied by district attorneys because we are--have a

lot of different responsibilities; initiating cases for

Iii
II

the pub1ic.-

JUDGE CALHOUN:

20

Aren't we getting ahead of ourselves anyway? We're

2J

talking about the Attorney General l aren't we?

22 MR. STUBBS:

23

Right. There's no thought on my mind to reach that

24

issue--whether the DA's ought to be under the Qualifica-

"~

~_~~~~ ~_o_~:~~~iO~_~~ ~~=_. i

__

__

I t 's

a

question

of

whether

or no~
______- - 1

the Attorney General should be and he's certainly amenable!

2 I

to that.

I
3 (JUDGE CALHOUN:

4

Well, I disagree with Tony and say that when the time

5 iIIi

comes, I would say that the DA' s ought to be subject to

II
II

b Ii

the same rules and regulations. But we're not talking

11

"

7

about them now.

i MR. SNOW:

I
1

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Are there any further quest~ons of Bob relative to

11

10

this section? Charlotte?

'l-":

11 ~ MS. MORAN:

..o....

'"

Was any thought given, when you considered the posi-

tion of the Attorney General in the Executive Article--

was any thought given to making that an appointed position

rather than elective?

STUBBS:

Well, you're asking--obviously I have a very biased

1~ I

position on that and the Attorney General does too.

19 MS. MORAN:

20

Yes. But I wonder if we could have some information

21

as to how many other states have appointed--

22 MR. STUBBS:

23 i
24 I
csL

Well, we've had--from other states you've got all
sorts of varietites of appointed--some are appointed as in
Tennessee by the Supreme Court. In other states, by the
........... _J

l' AGE 21

Governor.

2 MR. SNOW:

It has really been a mess in Tennessee the way
3 II

4I

they've had it up there.

5 :MR. STUBBS:
i !

That's right.
6 II

7

,I
I! MS.

MORAN:

They've had a very difficult time.

R I'

well, I would appreciate some information as to the

il

9 II

various methods of--

10 MR. STUBBS:

The general position of the National Association of

Attorneys General is that the Attorney General be elected

and be as close to being a fourth estate, if you will, as

possible. Because the role that he ideally would play

would be substantially independent of any branch of the

government and more in the nature--and I use that term

rather inartfully of being an ombudsman. IS IMS. MORAN:

:: I
21 I
I 1)
I,I
23 III'

well, of course that certainly is a very valid argument. On the other hand, from the point of view of the voter, from the point of view of opening up this position to a variety of individuals seeking it, I just wondered about the opportunities there.

24 IIMR. STUBBS:

II

25

,~I -------

Historically,

there

have

been

only

about--since

1868
_-J

when the office was reconstituted--as I recall there have

only been about three who were elected upon their initial

entry in the office. Almost every other one of them was

appointed.

'i MS. MORAN:

6

So it is essentially in Georgia an appointed office

anyway?
I
,i
8 I MR. STUBBS:

9

It has become that essentially. Certainly, Mr.

10 Ii 12
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Bolton was appointed; Mr. Cook was appointed; Judge Head was appointed; Governor Arnall was appointed; Mr. Camp-I've got you back to about 1930. I think Judge-MORAN:
We have a situation somewhat similar, then, to some higher courts. STUBBS:
Very, very similar to the Supreme Court in that re-

11S

spect. I don't recall an Attorney General's ever having

19

II II

been defeated in an election when he stood.

20 MS. MORAN:

21

Then is there any other of the states which now have

22

the election of Attorney General with the question on the

23

ballot as to whether he or she. would be retained?

I

MR. STUBBS:

25

I'm not aware of it. A Missouri plan type of thing?

,F~~:N'AMi i~l-a-n- ssour

__ _---------_ .. ... ------,~._-_ ~--_

..

.. -

type.

PAGE 23
---~ ~ --- ~--~ ----- --------- ~1

I
3 IIi MR. STUBBS:

!I

4 IIIi

I'm not aware of it.

iI MR. HIGHT:

61

There one state--in the State of New Jersey where the I

7

Governor actually appoints the Attorney General by coming

I

I

in every time he's elected, he appoints them--sort of a

9
1'1

at spoils system. What you do is you lose ot of the contin

\0

uity that you have in the Attorney General's office by

"z

11 l-

subsequent election.

oI>:

a..

~~~ iJUDGE l" SMIT::at would be worse than spoils; that would be a rott

14 ~

system.

':1

J:

\5 .:> MR. STUBBS:

"'~"

16 ~... o

Well, as a matter of fact, though, they've got a

Z

<I

17 ~

pretty good Attorney General up there. One of the differ-

I~

ences I think you would run in to--and we've got some real

19

polictical scientists up there--would be--the way that the

20

Georgia set-up is is that the Attorney General administers

no programs; theoretically exercises no policy direction

22

as the Attorney General legal officer. He does it in any

I

number of ways, either through the strength of personality

I 24

or by reason of assignment, either by the Constitution or

i

2:i ~I__~~~~~_ sta tutes to Boards and Commissions allover the place.

PAGE 24

But as the Attorney General, a legal officer, he's supposed
!

2

to be that. And in these other states the Attorney Genera

3

is head of a Department of Justice such as Hyland up in

4

New Jersey. And he's got investigators up the gum-stump;

5

he administers consumer protection, organized crime. They i

have about seven hundred, eight hundred people and lawyers

and they're under his jurisdiction. They also--I think

8

major crimes are prosecuted under the jurisdiction of the

Attorney General in New Jersey. And most states which

10

have these great big programs where the office is highly

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11 ....
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politicized are in the business of making policy. Perhaps! ,i
they should be more responsive to the Governor, who is the i
,
principal policymaker in the Executive Branch.

14 >- JUDGE NICHOLS: I-

~x

15 .)

New Jersey also has statewide grand jury system. I

Ci

III

J

H. ~

think that ties in with that, but the Attorney General

o

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initiates it.

18 MR. R. HARRIS:

19

While I would have no objection to the Commissioner

20
Ii

of Agriculture and several other offices appointed by the

n!

Governor instead of being elected, I feel rather strongly

22' I

that the Attorney General, even though the way it function~
I
I
it's effectively an appointed office, but once the appoint,

t~ .p~ointed 24 "I

ment i s made he is independent from the Governor and not

25 L _ n b j e c t b . i n : r __

two years later or four yearoj

PAGE 25
of independence that I think the

1 can see that there is a problem, though, on the

part of the average voter who really has very little infor~

matio to go on when it comes to knowing how to vote on

this particular candidate. And it is, as we seem to hear,

an appointed-type position and why not, in fact, make it

one? That's the only question I'm posing. How is the

IU

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voeter supposed to be able to judge this particular per-
!
I
son--on what basis? And if 1 recall the races for Attorney~ General here in Georgia, it's one of those forgotten positions. And I'd be interested in seeing some ~tatistics as to how many votes are case for Attorney General STUBBS:
SUbstantially the same number as were cast for Secretary of State last time.

Ix \IMS. MORAN:

I jiJ Ii
il
2U i

This problem with these administrative-type offices is certainly one I would like to look at. 1 would be in-

21

terested in having some information as to varieties of

selecting Attorneys General.

.'1

I
IMR.

HODGKINS:

24 II :1 'I i
~, ~ __~

I think in most states, though, it is elected. And
~:_~: _~~._~h_~~~~~~_ wi_~~_~hort ballots, usually the Gove~_~~_r~

PAGE 26

r-----and --t-h: Attorney General are almost always elected.
Ii

2 I MR. SNOW:
I

3

il i:

Marty, would you check in on that statistics so as

4 Iil

to find out in the fifty states as to how many are elected l

Ii

-5 IIIi

or appointed. I would just comment that the Attorney Gen-
I

,I

eral's office is one that I would personally feel should

7

be an elected office. Now, I've always felt like someone

8

like the Superintendent of State Schools ought to be

I
i
answerable to the Governor who has to run on a platform of '

10
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education every four years and that he should have a superj i
intendent in there that would back up his program. But we're not in that particular Article. But there are certain~ areas where we have elected officials that I think they should be--personally that I think that they should be appointed. Joe? DROLET:
Wayne, I think there's some confusion here. We keep

18

referring to our Supreme Court Judges and the Attorney

19

General as being appointed. And I think there's a whole

20

lot of difference between the way they are appointed and

21 \1

someone who is appointed and serves at the pleasure of the

22 \

appointing party. The initial appointment is all we have,

!

23 1\

so really we've got almost a Missouri Plan in effect now.

24 I J UDGE SMITH:

i

_ - __ 25 l_~

Yo~ ca~_bet .,hen t~~Governor appoints th~t_he's g~t:J

PAGE 27

a blank resignation in his drawer because he's not going

2

to let him investigate him while he's in there when he

II

appoints him, 1 guarantee you that.

Ii

4 I MR. STUBBS: I I

5
i

1 can't answer whether Mr. Bolton has a blank resig-

6

nation or not.

I

7 I MR. SNOW:

II

11 I

I wouldn't think so.

I

I

<) I MR. STUBBS:

10

1 don't think he did, though. I don't think Mr.

"z

II llol<

Bolton had submitted a blank resignation.

Q.

12 ~JUDGE SMITH:

@r~~

He wasn't appointed by the Governor,

either.

14 ~ MR. STUBBS:

':~z":

15 0:>

He was appointed by Carl.

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~

16 l~D MR. SNOW:

Q
z

~
17 f:i

Governor Sanders.

18 JUDGE SMITH:

19

Yes. But he was appointed and couldn't be fired by

20

Carl, either.

21 MR. STUBBS:

22

That's correct.

23 JUDGE SMITH:

24

That's what I mean. It's at the pleasure of the

I

25

Governor.

That's what I'm talking about.

I
I have no objec1

____J

PACG~ 28

tion to that. I'm talking about is where the Governor can, I
appoint and unappoint at his pleasure. That's what I'm

talking about.

MR. STUBBS:

5

I wouldn't want that.

JUDGE NICHOLS:

To answer your question. I don't think--the Missouri

1\

Plan is applicable only to Judges. That was th~ purpose

!:

" II

of establishing it. I don't think it would apply to

10

Attorneys General.

"z.
11 ~ MS. MORAN: o
Q.

p :::
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T realize that. But it's a system which could, theoretically be used for other officials.

"-::

I

14 ~JUDGE NICHOLS:

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15 .:.
"IX
;;)

It's your idea that it ought to be.

16 'oz~" MS. MORAN:

<I
17 ~

No. I am exploring this whole business for my own

I 18

benefit. I'm sorry to take up the time but it did see. to

j l) 1,
20 II

me that there was an assumption made that we were going to
I
continue with an elected Attorney General which is certain~
i

21 II

ly--

n \IJUDGE NICHOLS:

.;31\ 1
\
24 I
"I

Well, I'm against the Missouri plan per ee. I'm for non-partisan elections and ballots. I don't believe in running against yourself.

- - - - - - - - - - -'- - - rJ~~~~-~-~~~~-:--

PACI<: 29
--- ----------1
I

2I

Di you say you're against the Missouri Plan, period?

3 I JUDGE NICHOLS:

4 II

Period.

I

5 I JUDGE SMITH:

i

I

I

bI

Well, the Court of Appeals and the Supreme Court agre~

I

I

7 !i

on one thing then, don't they?

Ii

IiH JUDGE NICHOLS:

9 II

Well, I don't know. I haven't heard from the Court

10

of Appeals. Are you speaking for them?

"z

II ~ JUDGE SMITH:

o
CL w,

t""",k4h"

Q._-12 ~

We agree ,w.tJ..h you.

iMR. SNOW,

We're against it per se, too.

14 .~.. '" :I: 15 .!J
"Of.
:>
16 .~.. oz 17 ~

Bob, are you moving that we retain the Attorney General's office in the Judicial Article and that we excludethe Attorney General's office from the Executive Article?

18 II MR. STUBBS:

19

I would so move and would also move the--I, II, III

20

and IV as a proposal for the consideration of the Committe~.

IMR. 21

R. HARRIS:

22

I second the motion.

23 MR. SNOW:

Those in favor of that

of ayes.[ Those opposed,

1':\(;1<: 30

no. [No response.]

2 JUDGE SMITH:

3

That's this proposal that you just submitted a while

4

ago; isn't that right, Bob?

'i MR. STUBBS:

Yes, sir.

7 MR. SNOW:

Now, the motion that we just passed was solely to

9

retain the Attorney General in the Judicial Article, not

10

necessarily the language here.

"z

II :; MR. R. HARRIS:

o.".".

12 ~
@r~

No. We moved that too. motion.

He included that in his

14 ~I MR. SNOW:

'<"l
l:

,-'
IX :;>
16 .~.. oz 17 g

No. His motion was, and that the proposals be submitted to the Committee for their study and for their consideration. That's my understanding. Motion made and

18

seconded. And therefore, this will be excluded from the

19

Executive Article and included in the Judicial Article.

20 Ii
Ii

Now, we will--before we get into the trial courts, would

,I

21 II
II

you like to proceed with the language in this particular

ii'

12 II

section and see if we want to tentatively adopt this lang-

L__ :_t_a_t~_ s_h_a_l_l_~~ e_~_~~ted ~3 !i III
24 I ii
2S

uage? If so, we .will commence with paragraph I. Election;

Term of Office. "There shall be an Attorney General of

t_h_iS __

Who

by the people at the sa___.m.. e J

PAGE 31

[-----~~~--~;r-:~~--~ameterm and in the same manner as the

l,

I

Gove:nor, and as otherwise provided in this Constitution

3I

for the election of executive officers."

ii

4 II

Is there any objection to that language? Joe?

II 5 MR. DROLET,

6 II

Would this restrict the Attorney General to the ex-

,I

7 I'

tent that the Governor is restricted to a number of terms?

H IIII MR. STUBBS;

9 II

It's never been before.

10 MR.

CzI

Il I-

'0"

Q.

~

~@"-12 .'~".. MR.

;:

/-- z

~

:.
_.. --" ./

~

14 >I~ :J:
15 .:. MR.
":'>"
J(, 'z" ~ 0z ~
17 ~ MR.

DROLET: Same language?
STUBBS: This is essentially the same language
now. DROLET:
I guess there's no problem then. STUBBS:

that's

there

Ib
/I

Because there is an affirmative restraint against the

" 19

Governor. The Governor shall not succeed himself.

20 DEAN PATTERSON:

21

!
I'

22

II
I

1; 2.3 !i

Would it be satisfactory just to say that he shall be elected as provided in this Constitution for the election of said office? Does it add anything to say that he

24

shall be elected at the same time and in the same manner

as the Governor?

________ ---J

PACE 32

MR. SNOW:

2

I think most of the interpretation on that--and I may

3

--I stand corrected--but would be that when you say in the

same manner, that means a partisan election. The term

5

would be for a term of four years and of course the time

h

would be the General Election. Is that the interpretation

7

that y'all place upon "in the same manner"?

MR. R. HARRIS:

I think that what Ray's saying is if elsewhere in the

10

Constitution it's provided that Executive officers shall

11 .... o~
o.
w
12 :
@)--~

be elected for four years and so forth and so on, that it'~
I
unnecessary language at this point. I believe that's the
gist of what you're saying.

14 :..:. DEAN PATTERSON:

:J:

15 .:>

Yes, that's basically--it's not to change the sub-

"co:

::>

II> ~...

stance of it--simplify it .

o

Z

~

17 ::'i MR. SNOW:

lb

Bob, can you see an objection to deleting some of

19

that?

20 MR. STUBBS:

21

No objection. I'm not wedded to the language at all.

iI 22

MR

SNOW:

23 1\

"There shall be an Attorney General of this State sho

24 \

shall be elected by the people as otherwise provided in

25

this Constitution for the election of Executive officers."

:r

And delete the rest of that.

PAGE 33
--.,. - .'. ------_.._-_.-._.. ' Is there any objection to

that deletion? [No response.] No objection; then it is

deleted.

4 I JUDGE NICHOLS:

We're just taking out the surplusage.

6 IIIMR. SNOW:

7 !I

Okay. Paragraph II, Duties. "The Attorney General

I

shall be the Chief Legal Officer of the State of Georgia.
II

<) II

He sha-l provide legal representation to the State of

10

Georgia, its agencies, authorities, boards, commissions,

and departments, and the officers thereof in connection

with official acts in any civil litigation in any court,

and he shall represent the state of Georgia is all proceed-

ings before the Supreme Court of the United States. He

shall give his advice, whenrequested by the Governor or

an executive officer of the State of Georgia, upon any

question of law, the resolution of which is necessary to

18

the proper performance of the duties of the Governor or

19

such executive officer. He shall also perform such other

services as shall be required of him by this Constitution

or by law. Notwithstanding any other assignment of duties

by this Constitution or by law, the Attorney General shall

nonetheless be an officer of each Court of this State and

empowered to perform any service and to exercise any right

associated therwith.

I
I
The Attorney General is authorized toi
____ -"""-"-1

provide such legal assistance to the General Assembly as

2

may be required by law."

3

Are there comments or suggestions or questions on

4

Paragraph II as to duties? How does this differ from the

~

present?

6 MR. STUBBS:

7

The present specifies that--well, there's one provi-

Ii

sion in the Executive Article that he shall--the Governor

1.1

may command the advice of the executive officers. The

10

Constitution then provides that he shall represent the

"z

11 ;:

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,)
j~

.v'.".

(@); ;: .z.. .V..

state in capital felonies, in certain litigation when directed by the Governor and perform such other duties as the General Assembly shall provide

14 :;;- MR. SNOW:

<II
:r
IS .)

That's in the Executive Article now?

"'::">

16

CD
.Z..

MR.

STUBBS:

0

Z

<II

17 'C"D

No, the latter part is in the Judicial Article.

The

lIS
I
I
I 19
20

Executive Article establishes the duty to advise the Governor and that's repeated in the Judicial Article along with the representation in capital felonies and certain

21 II

litigation when directed by the Governor.

22 JUDGE NICHOLS:

23

I

24

I
II

t_II
25

In other words, what this is doing, Bob, is transferring what's under the Executive over to the--along with what's already in the--

PAGE 35

a direction or consent by the Governor. Because the

Governor might very well not consent to it and then it

would effectually no longer function.

SNOW:

Is there any objection to this language? [No response.

Hearing no objection, it will be tentatively adopted.

Paragraph III, Qualification. "No person shall be

10

eligible for the office of Attorney General unless he shall

have been a citizen of the united States for ten years,

shall have resided in this State for six years next pre-

ceding his election or appointment, shall have practiced

..>.....

law for seven years, and shall be at least thirty years of

:r

15 ~

age when elected or appointed."

C>

'"::J

16 ~

Is there any objection to that language?

oz
17 ~JUDGE CALHOUN:

II;

Is there any reason for saying he has to practice

19

seven years, six of which will in the--and live in the

20

State six? Suppose he--

21 MR. STUBBS:

22

No particular reason.

23 JUDGE CALHOUN:

24

Suppose he lived in the State the first six years of

25

his life and then practiced in Tennessee just before he

11---

II

was appointed?

Ii

2

I'
:1 MR.

R.

HARRIS:

I'Al~L36

No. He--it says they "shall have resided in this

4

State for six years next preceding his election or appoint~

"

ment . "

:i h MR. STUBBS:

7

The only change that was made from what's now in the

constitution is as to the qualifying age. I believe it's

9

twenty-four or twenty-five now.

to DEAN PATTERON:

"'z
\1 I-
...oIll:
"-
J2 ~ MR.
@("~!

Would
STUBBS:
If he

domiciled be a better word than resided? resides, he's got to be here; if he's domiciled

14

,.
I..-.

here, he doesn't have to be here.

%

15 .:> DEAN PATTERON:

"Ill:
:>

16 ~ o.~ z

Well, I'm--again I'm thinking about a situation where

17 ~

you have people who are temporarily out of the State--re-

Hi
I 19 I

siding out of the State for a good and valid reason. And yet that's a Georgian who is actually domiciled in the

20 II

state and considers the STate to be his home.

II 21 JUDGE CALHOUN:

I

22 I

In the armed services.

I

23 \DEAN PATTERSON:
I

I 24

In the armed services.

l~R._ 25

STUBBS:

PAGE 37

Or in the Congress.

2 MR. SNOW:

3

Well, welve got a number of folks in Washington

4

right now.

5 MR. STUBBS:

6

I think we were worried about this last time with the

7

judges.

8 DEAN PATTERSON:

9

You know, it just seems to me that domiciled could

\0

be interpreted to cover that situation without permitting

a non-Gergian to--

STUBBS:

Itls not a frivolous question. Because, you know, in

South Carolina they--this is precisely the problem theylve

run into. Now, he was domiciled in South Carolina but not

a resident. And they held him disqualified after held been,

elected Governor or nominated by his party.

SNOW:

Well, do you have a motion to--

20 DEAN PATTERSON: I would move that the word be changed to domi- !

2J

ciled.

22 MR. SNOW:

23

The motion has been made that "resided" be stricken

24

and the--"domiciled" be aubstituted in line three of Para-!

graph III.

Ii--
II MR. STUBBS:

PAGE 38

2 Ii

I guess that should have been--that should be "been

II

3 :1

domiciled."

Ii

II 1 MR. SNOW:

il

5 Ii

Is there objection to that? [No response.] If none,

6 ;i

then the chanue is made.

!

SMITH:

Should we add "practiced law for seven years next pre

ceding his election"? Suppose he practiced law, then was

10

president of a corporation for fifteen years; practiced

'z"
11 ...
.'oa"....

law for seven years after he got out of law school? Would

~ 12 ~

that make any difference?

~r~MR' SNOW:

! 14 ...

I think we still--

1,. .>

'~x" ':>JUDGE

SMITH:

":':"> 16 ."z.".

Of course he might have been a judge. Maybe we'd

0z

~
17 ''""

better leave it alone.

SNOW:

19

Or he might have been in an appointed position in

20

Washington.

I 21 MR. STUBBS:

I
22 I

This is anomoly now because the law prohibits the

23

Attorney General from practicing law while in office and

he's been in office tWelve years, so he hasn't practiced

25

for twelve years.

- - - - - - - ----~-----_.

PAGE 39

JUDGE CALHOUN:

2

I don't know. What's he doing when he goes over

3

there before the Supreme Court? What do you call that?

I

4 MR. STUBBS:

I
I

i

5

Well, he can do that because the Constitution mandate,I

I

6

that.

!

I

I

7 JUDGE NICHOLS:

I

We held in the Clinkscale case that judging is not

9

practicing law. Of course I dissented on that.

10 DEAN PATTERON:

"z
II I-
oa."o.".:
12 ~

Could you substitute there--say "shall have been a member of the State Bar in good standing"?

@ r I MRO STUBBS:

14 !.....

" next preceding election"?



:r

15 .:. MR. SNOW:

"ot
:J

16 C.z.D.

It's been suggested that the language in line four

0

Z

<l

17

ot w

might be changed to substitute thereto "shall have been a

Ib

member of the state Bar in good standing next preceding

19

his election."

2\) MR. LUNSFORD:

21

Mr. Chairman, is it possible to make a comment if

you're not a member of the Committee?

I MR SNOW:

24

We welcome all the help we can get.

25 MR. LUNSFORD:

-- it. Ir~~- ---~-~ea n Patteroon,

[JAGE 40
my unde r. tanding 0 f the ru 1 e. 0 f

2 II

the State Bar that you can be a member of the State Bar

3 Ii'Ii

but never have actually practiced.

:\

4

Ii
'i

MR.

R.

HARRIS:

5 I,I

That is correct. You can be an inactive member of

II

6 Ii

the State Bar. That's what I am.

I

il

7

il
I,

MR.

LUNSFORD:

I'

I'

I

!I

8 Ii

The only reason I point that out is do we want to be

II

9 III

in a position of having an Attorney General who's never

10

actually practiced. Seven years--the requirement of seven !

II ...
.'.o"....
e~~

years of actual practice at least requires that he practice or have been in actual practice for seven years in some time since he graduated from law school.

14 ..>....-DEAN PATTERSON:

~
:r

15 .:>

Well, you could say "an active member of the State

":'>"

16 ~...

Bar."

oz

<{

17 ~MR. R. HARRIS:

IH

I could maintain an active status if I wanted to. So

19

I really like "~o practice law" better.

20 IDEAN PATTERSON:

21

Well, I'm not wedded to this.

This is just a sugges-

22

tion to deal with the problem.

I,

23 IIMR. SNON,

24 II
25 II
lL

Any further comments? Did you move this as a motion, [

i

Dean?
.~_~_ ------.-----.---.-----.--.------.-

I

_.

.J!

l'AGE4l

I don't think I did

.3 I JUDGE CALHOUN:

4

well, I'll make a motion that the change "have been

5 II

domiciled in this State for six years," that it be tenta-

6 II

tively adopted.

\1

II 7 MR. SNOW:

8 Ii

I think we've adopted that. We haven't--is it agree-

<) II

able to retaining the language "shall have practiced law

10
"z
11 ,.
.'oa"....
e);~i ! 14 .... V> 0( :I: .. 15 .:. "::> 16 ~ o Z 0( 17 ~

for seven years" just as it appears? If no objection, then we adopt that. That's tentatively adopted and we'll go to Paragraph IV.
Paragraph IV, Discipline, Removal and Involuntary Retirement . "In addition to any other. provision of this Constitution relating to the disability of Executive Officers, or to any law enated by the G~neral Assembly, pursuant to this Constitution and ot inconsistent therewith,

18 Ii

relating to the suspension of constitutional officers and

19

department heads, the Attorney General shall be subject to

::'0
21 I 1
n II
II 23 i
Ii

the same provisions for discipline, removal, and involun-
tary retirement as Justices of the Supreme Court of GeOrgi~."
Any comments on that lnaguage? Any objection to its tentative adoption? If no objection, it is tentatively adopted. Okay. All right, Marcus, we are ready to get

25

back wih you.

PAGE 42

MORAN:

Excuse me, Mr. Chairman. May I ask if up here under

Paragraph I, the sentence or phrase "as otherwise provided

in this Constitution for the election of executive

officers," does that take care of the situation involving

a vacancy for the position?

STUBBS:

The provision for Executive officers--vacancies in

Exeuctive office is in the Executive Article.

10 MS. MORAN:

"z
11 ....
o..'"....
@;i

Yes, but if, for instance, say there were, God forbid,j
I
a death in office, then is it clear in this section that
an Attorney General would be appointed?

14

; ....

MR.

STUBBS:

'x"

1S .:.

I think the provision empowering the Governor to fill

":'>"

16 .~..

vacancies reaches not merely executive officers but all

oz

0(

17 g

officers for whom no other provision of succession is pro-

18

vided. For example, it reaches judicial officers.

19 MS. MORAN:

20

You feel that it's not necessary to have a paragraph

to indicate how a vacancy should--

JUDGE NICHOLS:

23

This section, as written, would only come into play

24

after the Governor had appointed somebody. Then he runs

for election at the same time as the Governor. But if he i
._- .._..._j

PAGE 43

dies in office, the Governor under the other section of

2

the Constitution, fills the vacancy.

MS. MORAN:

4

I just wanted to be sure that this was clear--whether

5

or not it might be necessary to write it into this

6

section.

I
7 Ii MR. SNOW:

S III

Okay.

I'

9 II MR. MCKENZIE:

10

~

"z
11 to< ..o....
12 ~

(~ @r~~I .. 14 .~.. MR.

:J:
1') .:l

"0<
;;)

16 o~CD MR.
z
<l
17 :

Before Mr. Stubbs leaves, I think we should point out i

there are other places in the Constitution where the Attor,

I
!
ney General is mentioned that would need to be corrected t~

i

do what y'all have just done.

I
i

STUBBS:

I

Yes.

MCKENZIE:

He's listed as an executive officer in other places

18

in the Constitution.

19 MR. STUBBS:

20

Under the--that is preserved--one of them in particu-

21

lar is preserved, though. That's on the 290l.A provision

22

on removal, is specifically spelled out there. The only

24
25
U-

other place I think it is spelled out is the one that I

made reference to and that would have to be corrected in

this context. Oh, he's mentioned on the Bond Commission

--

_

IT" -.--------.-'..

PAt;]:': 44

and the constitutional Revision Commission and two or three
11

2I

other places. But I don't think that's relevant to this

I

3 I:

one. But you're right. There would have to be a couple

I:

4 il.

of--

II

s II! MR. SNOW:

f, II:iI

All right.

Let me suggest that, Marty, you and Terry

Ii:,

i;

and Cindy check all the various Articles wherever the

II,[

s Ii

Attorney General might be mentioned to correlate that to

'I

II ':}

what we have done here and to eliminate references where

10

it is necessary, where he might be referred to as an

(@,

.."z
11 ...

executive officer

.o".-.

l' ~OEA' PATTERSON:

~~r~
l 14 ... '" :I:
..IS .,. " :;)
16 ~'" MR.
oz 17 ~

Mr. Chairman, could I suggest once the Committee has decided upon the substance of all these Articles, that a committee be assigned to mate the language? SNOW:
Yes, sir, and I can assure you that you will be a

18

member of that Committee too. We will utilize the exper-

19

tise of the law schools in that. That's primarily one of

20

the reasons why we're making tentative approval of these

21

different sections. We'll still have to go through and

22
23 I

look at the language and make sure that--because that's on~
i
thing that we are as interested in doing in the Constitu-

24 ,I
2S [

~_~_~_~_~ M~_C_U~~_ tion as anything else--is cleaning up the language.

I

A_ll

__

I you have polled some of your sub-

..

.. _ _ - - 1

PAGE 45

committee members who are not present here today and I

think you have a report on that.

3 " JUDGE CALHOUN: I I

4

Yes, sir.

I asked Marty to try to reach the three

5

members who met with us last Friday but are not here today

6I

--Senator Howard Overby, Representative Albert Thompson,

7

Mr. Hansel Harris, who's representing the Younger Lawyers.

8

And they were: only able to reach Senator Overby and Mr.

9

Harris and both of them say that they favor a one-tiered

10
"z
11 ..
.'o0"..-
12 ~
@r!

court system. Representative Thompson, as I recall--I don't recall that he expressed any preference. 1 was amiss in not asking last week but do you remember if he expressed any preferenceJ

14 .~.I. MR. R HARRIS:

~:r

IS ~

I don't recall it.

"'";)

II, C~D JuDGE CALHOUN:

oz

<l

17 ~

With that count, I would say that of the six-member

Hi

subcommittee, the vote would be four for plan one--would

19

be myself, Robin Harris, Senator Overby and Mr. Hansel

20

Harris; one against--Ms. Moran or one for plan two which

21

MS. Moran said she favors and one unknown or one absten-

22

tion--Mr. Thompson.

23 MR. SNOW:

24

All right. Before you commence, let me ask--we've

25

got some coffee out in the anteroom and there's some water

_ ~.

--l

1',\GE 46
~------~-::-.---WOUld--;-:u-~~~eto get some coffee or a drink of

2 Ii!i

water before we get started into the trial courts?

i

3 Ii

[Whereupon, there followed a brief recess off the record.'

4 JUDGE CALHOUN:

5

Mr. Chairman, with your permissions we'll take up

,

I

alternative one, which is the one-tiered system. The first

7

paragraph has to do with jurisdiction and of course as

R

pointed out, this will all be pulled together. We just

')

put Section III, assuming that the Supreme Court would be

10

Section I and the Court of Appeals would be Section II.

"z
I I t-
'a.o"...
(~, ~ 12
er~

We say that "All original jurisdiction shall be vested in
I
i
the Superior Courts. There shall be no other trial court.,
I
Shall we do like you did--any objection to that?

14 I.>.--. MR. SNOW:

<l

:J:

15 .:.

Yes.

CJ

'::">

16 ~CD JUDGE CALHOUN:

oz

<l

17 ~

Any objection to the tentative adoption of this--

18 MR. DROLET:

19

Judge, is it necessary to say that there's shall be

W.

no other trial court?

21 !JUDGE CALHOUN:

22

Well, I feel like it might be necessary because it

23

could be that somewhere down the line somebody would deCid~,

24

I "Well, we ought to have a county court in Echols County so

2S

let us create us one."

_____JI

~ M;~-~ROLE-~-:-------__---------.- ------.--

PAGE 47

2 II

This would preclude the possibility of creating

II .> I,

another one?

4 II JUDGE CALHOUN:

5 II

Otherwise legislation could create one like that.

6 II

Yes, sir?

7 MR. OLSEN:

8

Judge Calhoun, could that be interpreted as prohibit-

9

ing giving lower ranking judicial officers such as your

10
..,

magistrates the right to try certain cases?

z

II ~JUDGE CALHOUN:

..o....

~F~ ~~ ~ 12
! 14 .l.-.

No, I don't think so because the Constitution provides for that--I mean this Article provides for that--to be a part of the Superior Court.

~

%

15 ~

All right. If there's no objection we'll go on to

"Of.
::>

16 .az~..

Paragraph II, Judicial Circuits "The State shall be

~

17 ::

divided into Judicial Circuits consisting of one or mo~e

18

counties. The number and composition of the Judicial Cir-

J9

cuirts shall be as provided by law.

20

"The Judicial Circuits existing on the effective date

21

of this Article shall continue to exist until modified or

22

abolished by law."

23

At the present time we have 42 jUdicial circuits.

24

That's what we would have until they are changed. If

25

they're never changed, of course they would always remain

.

.

.

..

.

..J

r the same. i,

-- ~ --~------~~~~.--

PAGE 48
I would hope that they would be changed to

II

2 Ii
!I

some extent. Are there any objections to this paragraph?

I,

All right. If there are none--

4 MR. SNOW:

5

Just a minute--Terry?

!l MR. MCKENZIE:

Aren't all the judicial circuits now created by law?

R IIii

Do you really need this language?

II
II!'
9 JUDGE CALHOUN:

10

Well, 1--

z"

i J ~JUDGE SMITH:

.0C.L.

12

IX U

~@tJt~ ~

>z=

~

-----

~
14 >-

~

~

x

I think you've got to give the legislative authority
to be able to either change them or abolish them; otherwis~,
you'd freeze everything as is.

15 .:>JUDGE CALHOUN:

."..IX
:::>
16 .z..

Which--are you saying take out sentence--paragraph

0z



17

IX
'"

two--"The number ~~hall be asprovid~d by law"?

18 MR. SNOW:

19

No, the second sentence, I think.

20 MR. MCKENZIE:

21

"The number and composition shall be as provided by

22

law." And Judicial Circuits existing--they're existing

23

now.

24 JUDGE CALHOUN:

25
LL-

Right.

Well, that may be surplusage.

~___

.. ~ - - - - - - - - - - - -

~-

You could just!

_ .~

J

PAGE 49

take out that they would continue until modified because

::

I think they would by law continue until modified.

3 ,I MR SNOW: \1

"

4 II

Why not just say that ~~he State shall be divided into

I,

. Ii

Judicial Circuits consisting of one or more counties as

)

I' !I'

6

provided by law"?

I'I,
7 i JUDGE CALHOUN:

1\

I think that would be all right. So that the section

<}

would read as the Chairman just said: "The State shall be

10
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14 .>..-
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15 .:>
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16 z ~ 0z
17 Il< al

divided into Judicial Circuits consisting of one or more counties as provided by law," period. Then everything els~ would come out.
All right. Any objection to the tentative adoption as changed? [No response.]
All right. Paragraph Three, the number of Judges. "Each Judicial Circuit shall have one Superior Court with such number of Judges, Associate Judges and Magistrates as

Iii

may be provided by law."

J9
20
21 I
22 i
23 II I 24 ! 2') ~_~

Any objection to this paragraph? [No response.] All I ,
right. We'll go on to four, the term of office. "The termr of office of Judges of the Superior Court shall be six year~
and until his successor is duly selected and qualified,
provided all Judges of the Superior Court holding office on!
the effective date of this Article shall remain in office
.~:~..th~_~:rm_to which they were elected."

PAGE 50

rr------ .--.---.-----.-... ----- .. -- -.----.--

II

IIi'

As you know, at the present time the Constitution

2 II

provides for a four-year term with the exception of Judges I

II

II

3'

of the Atlanta Circuit who have eight-year terms. This

'-I

would raise everybody up to six and lower the Atlanta Cir-

cuit to six, provided of course that a man that had just

been elected for eight years, that he would serve that

term and his next term would be six years.

~ MR. SNOW:

9 I,Ii

Did y' all check the Fulton County Circuit?

10 JUDGE CALHOUN:

"z

11 ..
'o0."...

Well, one or two Judges over there have told me they

12 ~
(~ '---~- r~ 1~4:.

think they ought to be--if the time was raised to six they think they ought to be the same. But I'm sure that the majority of the Judges would oppose any change

~

:J:

IS .:>

Are there any objections to that?

'6 :"':"> ~[Q MR. R. HARRIS:

<:I

Z

01:

17 ~

They all ought to be the same.

lR II JUDGE CALHOUN:

19 II

All right. "The number of Superior Court Judges in

.'0 I
II
21 11
I'I
n II

each district"--this may be in the same category as what we just eliminated. "The number of Superior Court Judges in each district existing on the effective date of this

:~::e::ec:~::~r::Yc;:;:e 1 I 23

ii"

Article shall continue, and the General Assembly shall

:: I. _

C:::i::::::o: 0:u:::::: ::u:: thE

f

PAGE 51

Judges in any Judicial Circuit." Well, this is a change

2

of course because at the present time the General Assembly

3

can do it without any certification of necessity. Is

4

there any objection to this new language which would be a

I

5I

change? All right. We'll go on to the next. Yes, sir?

6 III' MR. DR0 LET:

II

7 Ii

It refers to district there in the first line. Is

II

8I

that the same a-:; circui t?

9

MR.
I'

R.

HARRIS:

10

It ought to be circuit.

"z
11 ~JUDGE CALEOUN:

..o....

12 ~

It should be circuit.

er~ IMS. MORAN,

14 ~~

I
Excuse me. Could this paragraph be--giving the numbe~

t-

~

:l:

15 .:.

of Superior Court Judges in each district or circuit--

"tt:

~

16 .~..

should that in fact go up in Paragraph Three?

oz

17 ~JUDGE CALHOUN:

Hi
II 19 II

Possibly. I think this would be up to the Committee
i
which Wayne's going to appoint. Ms. Moran suggests puttin~

20 I

this last sentence in Paragraph Three since it does relate

"I

to the number of Judges rather than the term of office.

"11

Yes, sir?

: __ t t: 23 IDEAN PATTERSON:

I
e :r:::e_ ~_.

t~

U::eo:r~::~m_: f t~:::~:: ~:.I 0::::d

hU :: ::::

i SJ

r-

Ii

Ii

about the use of his or her or a successor.

'I
II

i2 JUDGE CALHOUN:

.'

I thil\~: you're right .

MR. SNOW:

Let's go ahead and make that change now as far as

()

this paragraph.

'JUDGE CALHOUN:

:~

All right. We're moving the last sentence in Para-

-,
II
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10

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i i ;::

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graph Four up into Paragraph Three since it realtes to the number of Judges rather than the term of office.
All right. And then Paragraph Four, line two, we're changing "his" to "a"--until a successor. As the Dean points out we do have at least one female Superior Court Judge in the State and we'll probably have others.
All right. Paragraph Five, chief judge--"In each Judicial Circuit having only one Judge, he shall be the Chief Judge. And those Circuits having"--should be--"Cm

lIS
I'

those Circuits having two or more Judges, the Superior

19

Court Judges therein by majority vote shall select bi-

20 ,II

21

II"I
!'II

I

22 !I

II

annually a Chief Judge. In the event a Chief Judge is not selected within 60 days, the Supreme Court (Chief Justice of the Supreme Court) shall designate a Chief Judge. The

23 Ii

Chief Judge shall exercise in the administration of his

L24

circuit such authority and perform such duties as may be

25

prescribed by the Judicial Council." Any comments or--

PACE53

I MR. R. HARRIS:

2

r would--I think we put in Supreme Court and Chief

I

3 ,I

Justice alternatively, but I, on thinking about it really

I'I,

4i

believe it should be the Supreme Court as against the

II

II
5 It

Chief Justice, with all due respect to Chief Justice

I!

6 I!

Nichols. You might have a situation where a Chief Justice

Ii

'7 ji

would not act and I think the whole court would.

d

!i

H 1\ JUDGE CALHOUN:

I,

I~

9 II

All right.

The Chief Justice is nodding so we'll

10

take that out and say the Supreme Court. Yes, Tony?

~,
z
II ~MR. HIGHT:

.o0....
~ 12 ~
(~f~~

r just had a question in relation to--of course I was present when this thing was considered by the subcom-

,-:::_-

I

14 >~

mittee. But is there anything that ties in the present

'"

:I:

15 .:>

administrative districts which actually work with the

"':">

1t> .~..

Superior Court in this particular section?

oz

17 ~JUDGE CALHOUN:

18

Not unless --we assume that the Judicial Council

19

would delegate this to Marty; they could do that. We have ,

I

20

an Administrative Judge now who is sort of a ivory creatureiI,

21

who has a lot of responsibility and who doesn't have any

22

authority. So--or we might add "or by law," and the legis~

23

lature could put that responsibility on the Administrative

24

Judge which tye've done already.

25 MR. SNOW:

w-
II 2 III,
!i
-'
1

PACt: 54
Why can't we remove the first sentence completely and i just have the second sentence mention that in those circuits having two or more judges--if you've just got one judge in the circuit, he's going to be the Chief Judge any~

~

way.

;, Ii JUDGE CALHOUN:
:1
That's right.

Judge Ben Blanks who's a judge in a

one-judge circuit was telling me--said, "I've got more

'I

responsibility and autbority than you have." I am the

10
"z
II ,-
'o."".'-.
@}--12 .u'".. z~ ~MR.

Chief Judge in a your circuit you There's a lot to MCKENZIE:

three-judge circuit. are a judge. Up here what he says really.

He says, I am the

"Down in Judge."

~-----

14 >-
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15
J"'"
16 ~... o Z <l 17 ~

That has always been provided for generally in the local laws or the laws creating the circuit. But in 1976 you passed a general law making it uniform statewide. It was in the bill that created the Superior Court Judges'

l~
I

retirement system.

19 IJUDGE CALHOUN:

20

What was in there--that you elect the Chief Judge?

21 ,IMR. MCKENZIE:

22 I,II

Someone senior in service.

1\

23 I\IJUDGE CALHOUN:

24 II

That's right. Is that the general law now?

1:

_.. ~._".,

.JI

f1r-----------------------

PAGE 55
- -_ ...'._._--- .,-_. .. .... i

That's the general law now as it applies in every

2 11

circuit.

3 ,iIJUDGE CALHOUN:

4 II

Well, I think we can eliminate that sentence.

II

5 /IMR. SNOW:

!'II

() II

Sentence number one will be eliminated if there's no

\1

7 Ii

objection, and then begin the second sentence with "In

8 I!Ii

t h ose C1. rCUl.. ts "

9 II JUDGE CALHOUN:

10
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11 l-
or:
o .l1....
'~ ~ 12
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! 14 I..-. J: 15 ,)
"or:
;:)
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Czl 17 ~

Right. That will be the first sentence. All right. Now, Tony raised the question of whether or not this would eliminate the administrative districts. We could add--you might create a conflict if you add "by the Judicial Councilor by law." We could just eliminate Judicial Counoil and "may be prescribed by law" because the only authority the Judicial Council would have would be what the law gives them, right?

IS IMR SNOW:

It) i

That's right.

20 IIMR. R. HARRIS:

21 II

Well, but then you get the problem of delegation--

I
23 II
:1

could the General Assembly delegate anything to the Judicial Council unless it was authorized to do that. I'm not

24 I11

a Constitution lawyer.

" [M~._ SNOW,__

_

PAGE 56

IY-' 'I
'I
II
I,
I,
2 II

Terry, now this conflicts with the general statute that we had passed, does it not?

II
3 "MR. MCKENZIE:

4

That's right.

5 I MR. SNOW:

The general law presently gives--the Chief Judge is

"

the Senior Judge, the one who has--

)1

R MR. MCKENZIE:

,I

9 I,I

Senior in service.

10 JUDGE CALHOUN;

We've had instances I know of where the Senior Judge
,
will not act--does not act. In my area, it says the senio~

Judge shall call--you know--call a meeting to elect the

Administrative Judge. The Sanior Judge where I live never

)5 ~

would do anything--prompted; called--never would do anythin~.

":'>"

16 .~..

So I think thi3 is a good provision .

Q

Z

<i
17 ~MR. SNOW:

Iii II

This would be a section, if we adopt this, Marty, tha1

Ii

19 II

we would need some legislation, Terry, to change the pre"

20 II

sent statutory law to conform with this if the Constitution!

II
21 II

is adopted in November.

22 II JUDGE CALHOUN:

I'm sorry.

Go ahead.

I .:'3

prescrib~d Suppose we change this last sentence--"may be

I M '

'I
by law," and provide that the General Assembly may delegatei

~25

~e_ li.ty~othe respons i hi

Jod i ci a1 CounciL

..

2[DE~: ---_._---------_._-_._- -_._-----_..--- - -----PATTERSON:

PAGE 57

I was noticing the "his" again and it seems to me

3 II

there are two ways to get it out. Say "The Chief Judge

4I

shall exercise in the administration of the circuit," or

you can say "The Chief Judges shall exercise in the admin-
I
istration of their circuits."

7 JUDGE CALHOUN:

8

I like "the" better.

I

9 I MS. NONIDEZ:

10

Excuse me. Do you intend that the Chief Judge be

11

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~

selected every six months; is that correct?

o

IL

~~

12 ~ JUDGE CALHOUN:

f~t~c~i\ )c'"'w)_

~
I

Should be every two years.

14 >- MR. R. HARRIS: >'" :r

15

Biennial, I be~eve, would be a better--biennial.

.":'>"
16 ~JUDGE CALHOUN:

oz 17 ~

The change would be "In those Circuits having two or

more Judges, the Superior Court Judges therein by majority

19

vote shall select biennially a Chief Judge. In the event

20

a Chief Judge is not selected within 60 days, the Supreme

21

Court (Chief Justice of the Supreme Court) shall designate

22

a Chief Judge. The Chief Judge shall exercise in the ad-

23

ministration of the circuit such authority and perform such:

i

,. ,I

duties as may be prescribed by law, provided that the

i

2S

~_~~~~~ra~_~_:~emb~:_

ma~__ de::~_ate

this

responsibility

to the i
---- -----~

PAGE 58

Judicial Council."

SNOW:

3

Now, why is that needed in there, provided the

General Assembly may delegate this?

JUDGE CALHOUN:

Well, because the General Constitution put a prohibi-

7

tion against the General Assembly delegating.

MR. SNOW:

Okay.

10 ., JUDGE CALHOUN:

z

II ...
...IoX
0.

All right. This is the one that--

~

12 ~IX MR. SNOW:

~r~~

Go ahead. Cindy?

14

I
~MS.

NONIDEZ:

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IS .:.
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This "sixty days," period.

Ih C~D JUDGE CALHOUN:

oz
17 ~

Sixty days from what?

Sixty days from what?

I~ IIMS. NONIDEZ:

19 I

In other words, I think we need something there. I

W 1\

don't think it's specified.

21 IJUUGE CALHOUN,

I12

Paragraph Six. elections.

"All Superior Court Judges

~3

holding office on the effective date of this Article who

24

wish to succeed themselves shall not less than six months

25
LL-...

before the general election pr~~eeding the expiration of

._

__._..~._-.J

2 3 4 5 6
10
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12 ~
(~~ @'r,c.-.~ ,.I~ ~ 14 >l~ r 15 .:. "0< :> 16 .~.. oz - 17 ~ 18 19 20 21 22 23 24 25

PAGg 59
--------------------------------------- -------l
his term of office, file with the office of the Secretary I

1

of State a declaration of candidacy to succeed himself.

i

I

The Secretary of State shall not less than sixty days be- I

fore the election certify the Judge's candid~cy to -he

proper election officials. The names of the Judges seekin,

reelection shall be submitted to the electors, separately

and without party designation, on the sole question of

whether each Judge shall be retained in office. The re-
I tention election shall be conducated at general elections I
in the appropriate judicial circuit. The affirmative vote II'

of a majority of the elctors voting on the question sh~ll

elect the Judge to a new term of office commencing on the

first day of January of the next year. In the event that

a Judge receives less than an affirmative vote of a major-

ity of electors voting on the question, the office shall

be vacant as of the first day of January of the year fol-

lowing the general election."

Now, this is the so-called Missouri Plan. It's

lifted almost verbatim from the Illinois Constitution.

And I know that the Chief Justice has said that he opposes

this and the court of Appeals opposes it. I think it's a

good provision. As we know, there are very few Judges

defeated. Some are. I think history shows that few are

defeated on--even on Missour Plan--not many, probably

almost as many as are defeated on the regular thing that

w--------------

-_..-_ -"'-1

II

we have now. We recently had, in South Georgia, a Super-

2 ,I

ior Court Judge who had opposition from a lawyer who ran

I'

3 i,

what I consider to be a very scurrilous campaign against

the Judge with all types of false accusations that were

5

placed in the newspaper; spent a lot of money on it. The

Judge is in this position. He could not reply under the

7

judicial ethics. He couldn't call this fellow what he was.

i

HI

And it was sort of considered beneath his dignity to

9

answer these things. Of course the people in that circuit

10
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11 ~
'o"
:>.
~
j2 ~
@r~ 14 >~ ~ :r 15 .:. ":'>" 16 ~ oz I7 ~
18
19

realized what was going on and elected this Judge--reelect~

ed. But he went through a real harrowing two or three

months. Now, everybody I know has said, "Well, if you've

got a bad Judge, somebody can run against him and remove

him." But it's pretty hard to get somebody to run against

a Judge. A lawyer might take a chance. I don't know

what's happened to this man I was talking about, but I

i

heard sometime--several years ago--it's been longer than

I
i

j

i

that--a long time ago--somebody said that they were talking

i
about running against a Judge--a lawyer--and word got to

20

the Judge and he sent word back to the lawyer that "If you

21 I , ~ III 23 II
II
L " II
25

run, you'd better damn sure win or you better find another

place to practice law." Now, I don't think many things

I like that exist, but that does sort of chill a guy's ambi- I
I
I

i tion to be Judge. So people sometimes would not have an

opportunity to vote against a Judge who might be a bad

I

- - - - ------- ------------------------------------ - --------- --- ------

_____________JI

rr----------------------------- .- -- -- .

!'ACE 61

Ii

Judge. This way, of course the people would have that

:' I:!i

opportunity. If he's bad enough, he'd be removed. If he

:1

,~ !iII

was good enough, he'd be retained. And he wouldn't have

I

'I Ii

the expense of really getting out and campaigning. But

!i

5 IiiI

at any rate, that's the reason I think that this is better

!I

() i II

than having elections open because I agree with the Chief

7 II

Justice and Judge Smith that a Judge should be subject to

il

II

H

the voters. It seems to me like this is a reasonable way

IIIi,
9

to do that. So with that, I guess, campaign SPeech, I'll

10

be glad to hear from anyone in opposition to it. Comment?

"z

II ~JUDGE NICHOLS:

o

G. w

~ 12 ~

Well, I'll just say this, Marcus. I'm familiar with

~r~

that particular case you're talking about--about the sucr-

14 ~ !;;

rilous attack made on the Judge. And I'd have to say

0(

J:

15 ~

that the Judge was exonerated and it was his choice if he

"a:

:J

16 ~ ow

wanted to make it public that he had been exonerated. And

Z

4

17 ~

he said nothing about it. Now, if he'd had-~it's not the

IR

privilege of the State or the Qualifications Commission or

19

anybody else. That's a secret. But if he wants to make

20

it public, he can do it. It wasn't necessary for him to

21

make it public because nobody ran against him. Now, if he

22 1\
1
I
i
24

had had opposition on a nonTartisan ballot, I would think he would have been in just as fine a shape--in as good a shape because he could have made--used that as ammunition--[

resounrl~d in his favor and against his opposition.

But the thing about the Missouri Plan to me is that

someone that's in office, he doesn't know--hc's running

against himself actually and he can be zeroed in on by

5

somebody. We've had example of it that it's a great dis-

advantage to the incumbent. And I don't care myself. But

i'm just saying the word "Missouri Plan" has grown int0 a

great thing everywhere except Missouri. It doesn't even

work in Missouri except in two counties. They don't even

lU
"l.

like it in Missouri. I talked to the Chief Justice back last month ab~ut it's sort of a farce out there. Ynu know,

a lot of the states have picked it up and said, "Well, we

want the Missouri Plan."

But they tell me--and not only him, his predecessor

L' CI
-)
16 .~.. o Z <t
17 ~

in office--so it's not--the bipartisan ballot, if you're going to have an election--that's the way to have it . It's fair to everybody. And that's to say I have no--I'm

18 II 19 II

20 II

ii

~I

d
1\

not ~arried to the idea, but it just--it's sort of a misnomer, this business about the Missouri Plan being the ideal situation. I could live with it. I have no objection, Marcus.

) 1 il.\JUDGE SMITH:

nI
I 24 I.
1 1
25 1'1 .
lL_

Mr. Chairman, the way I feel about the Missouri Plan is that you're running against yourself and you don't know what you're running against. Because if you've got an
---------------

P.\c;E 63

ll------------------------------ -----

I!

opponent out there, you know what he's going to be throw-

II

Ii,

ing at you. But whenever you're just running on your own

II
; ,I

record--what you and I call a good record, the other

I!

Ii

4 il

fellow doesn't. The fellow that loses a case up here, he

ii

I,

5 Ii

doesn't think my record's very good. And that' what I'm

h 1I1i

running against--people who are dissatisfied on opinions

II
held against them. And the Governor gets to make another

: I:

appointment. I can see where the Governor could get mad

9 II'I

at a man on a court he can pass the word around this State

10

and they could vote him out of office so fast, he wouldn't

..,

z II ...

know what's up.

'o."".'-.

(0, ..~~ i JUDGE NICHOLS:

\~J1~4 !......

And he doesn't know about it. All this campaign is going on and he doesn't know about it

x<l
15 ~ JUDGE SMITH:

Cl
'~"
16 ~

That's right. You're running against yourself and

:z=:

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17 g'i

you don't know what you're running against.

18 JUDGE NICHOLS:

19

Well, that's essentially what my objection is.

.~o MR. SNOW:

I want to venture this comment on this section. And

22

that is that probably there's more fire in this particular

23

paragraph as far as creating opposition to the Article then!

24

any other section that we will cover. Now, I differ with

25

the Court of Appeals and the Supreme Court to the extent

------------------ ---

l' :\1: I" 64

that I think the Missouri Plan or the so-called plan would

be much better for them than it would be for the Superior Courts. Because in the Superior Courts we know much bette~

4

the Judges because they're closer to the people than what

the Supreme Court and the Court of appeals would be. The

()

--and I'm not trying to hurt the feelings of the Supreme

Court and the Court of Appeals--but the folks in the State

of Georgia just don't know--don't know the Judges on the

appellate courts. But they do know their local Judges and

\0

if you--the opponents of any changes in the Judicial

Article or Constitution will work on this $ection more thnn

anythiny else. But I personally have no objection to it

staying in dS far as this Co~mittee is concern~d because

I ,know that we've got still the Judiciary Committee to go

\) ...:,.

throug11 and I want something in here that they can work on .

'_"c>

16 ~ MR. R. HARRIS:

oz

<t

17 :

Well, let me ask you this question.

The next best

IH I

thing would be nonpartisan elections.

19 MR. SNOW:

2() II I

Yeah, but we've got that provision in here, haven't

I

II

21 II
11
!I

we? And we've also added the six-year term.

il , ) MR. R. HARRIS:

il

")';.,'

Ii
I:
,1

Ii

If the Judiciary Committee undertakes to take this

I!

24 II

out, which they undoubtedly will, would they--

Ii

I,I'
2S ~~R. SNOW:

---------
Now, I didn't say that.

PAGE 65

2 I4tR. HARRIS:

I

Would they be amenable to inserting a nonpartisan

4I

election or should the draft come from here as a nonparti-

5

san election?

I
61 JUDGE CALHOUN:

-, II

As an alternative maybe?

8 !MRo SNOW:

9 II

I would like for the draft to come from here as an

10

alternative possibly.

"z

1] ~JUDGE CALHOUN:

0......

@r~12 .u'.".

Do you recokon that--

j:

~JUDGE NICHOLS:
u

'"

14 ..x>..-..

That would assure the nonpartisan.

15 .:.JUDGE CALHOUN:

"'::">

16 .zI.D.

Well, I don't know. Maybe--

Q

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17 ~JUDGE NICHOLS:

18

Well" I don't mean .it would assure it.

19 JUDGE CALHOUN:

20 I

Maybe it would be better if it was the Committee's

21 II

idea rather than ours.

22 MR. SNOW:

23 I I
24
25

Well, the nonpartisan election idea is something that

I have been very interested in personally for several years!

now and feel like that that's what we ought to have in this;i

..

-1

State.

JUDGE NICHOLS:

J

Mr. Chairman, don't you think--having been in the

legislature, you and Robin, as long as you have and some

others--that the legislature would come nearer--the Gener-

h

al Assembly--buying nonpartisan ballots than they would

the Missouri Plan?

MR. SNOW:

I think they'll buy the nonpartisan ballots.

to JUDGE NICHOLS:

"z

Ii ...
".a:
"-

And I

(@j}....J2

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with you.

.'"..
z

~ MR. SNOW:

think that's what you have in mind and I

agree

14 >-
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1') .~
"IX
..:>
]6 ~ oz
17 :":;

You've still got some areas of the state where the representatives think feel like the. Judges ought to be very much involved in the local politics too because they've always been so involved in the local politics.

18 I

But they're really not supposed to be involved in it at

19

all anymore.

20 [JUDGE SMITH:

21 I

It's kind of hard not to get involved, though.

MR. SNOW:

23
1

Well, when you're running on the party ticket, you're i

24 \,

involved.

25 ~J~~_GE. __CA~HO~_~_~

.

._.

__ J

I' .V;r: 67

\1----------------------------- -

IilI

All right. Well, then with the assurance from the

2 II'

Chairman of the Judiciary Committee of the House that this

jI

probably won't survive, would there be any objection to

i:

II

4 Ii
II

tentatively submitting it to or tentatively adopting it.

5 1\ DEAN PATTERSON:

6 II

I move that it be tentatively adopted.

I'

7 II JUDGE CALHOUN:

8

II
I,II

Do I hear a second to this motion?

Ii

9 II DEAN PHILLIPS:

10

Second.

CALHOUN:

Further discussion? [No response.] All right. As

many in favor of tentatively adopting it, raise your--

BEXLEY:

I think we're all concerned about trying to get this

section passed and I think if you leave those controversia1

issues in there, you're going to give them more fire to

probably kill some other things that we would probably

want. And I think we had better consider cleaning it up

20

before it gets there rather than--I know how the horsetrad~

21

ing goes in som~f these Committees.

!

" II MR. SNOW,

23 III'
24 I[
::::ti:e:::::t ::9:::1:.:0:, "Il_

I'm going to agree with Harry on this because I think

::i:n::~:;:ye~:i::

~:r:O:::

I'AGf<~ 68

whether we take it out in Committee or not, it's going to

be in the minds of a lot of folks--"Well, we have adopted

the Missouri Plan." I'd rather for us to go to the nori-

partisan.

~ MR. BEXLEY:

(\

It would hit the State--it would go statwide before

"

-"/"' ..f ,:,:;'i', i

7

f~04~ht that we had adopted the Missouri Plan.

K ,TUDGE SMITH:

They would leave the word "tentative" complete ly out. '

MR. \0

BEXLEY:

,-"

2,

II .... cs; o

And I think we can pass a nonpartisan election this

<1. w

12 ~
(~Oi)lr""~ ~

time because I think the time is right out there. In my travels around, I've gotten no objection to it--nonpartisan

_/

14 >-

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election.

01

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IS ~JUDGE CALHOUN:

I (, "'~""
wo
Z 'l:
17 ~

All right. Any further discussion? [No response.] All right. As many as favor this plan, let it be known by I

1K II

raising their right hands.

19 IIMR. DROLET:

" 20 Ii I

As written?

21 tIUDGE CALHOUN:

)) IIii

As written. [A show of hands.] Okay. Opposition?

23 'II I Ii
24 11

[A show of hands.] All right. It's six to five decision against.

" iIMR. SNOW,_ .

.._

PAGE 69
fi------------;-::ve -;:--~~s p~~c~ that a provision be placed in

2 III

there for nonpartisan election of .1udges.

_\ ii JUDGE NICHOLS:

!i

-l il

I second.

II

i'

IiS MR. BEXLEY:

h :IIi

So move.

:1

7 I JUDGE CALHOUN:

il

8 :'1I

All right.

This would provide that Judges shall run

9

II

at the same time as other State officers but the names

I

10
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II ..
'lo.1"...
J 2 ~MR.
@j~~~

would be submitted to be elected on secret: ballot without party designation. We have in here somewhere-SNOW:
Now, that doesn't mean necessarily a separate ballot,

.~--

.. 14 >-

does it? It can he on a--

~z

15 .:.JUDGE CALHOUN:

":'>"

If, .~.. o

--a separate place on the ballot. All right. In

Z

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17 ~

Paragraph Six we will just substitute nonpartisan. All

1k Ii
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J9 !
I
20

right. Paragraph Seven is vacancies.
"All vacancies in the office of the Judge of the
i
Superior Court shall be filled by appointment by the Gover-, i
nor from a list presented to him by the Judicial Nominating'

Commission. A person appointed six months or more prior to

the next general election shall serve until the first day

24

of January of the year following such general election. A

,!
25 1 ~~_r_s~_n__~pp_o_int~~~~_~_~~~__~_~aD~ncy less than six month~ _

prior to the next general election shall serve until the

2

first day of January of the year following the second

general election following such appointment."

Now, we put this.in here because under the previous

provision, there was a six months notification required.

I believe at the present time if he's appointed sixty days

--less than sixty days before the general election, does

he serve until the second general election? Terry?

I l' JUDGE SMITH:

10

I don't--

"z:
I i ~ MR. MCKENZIE:
o
Q

1 -I a:

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If he's appointed within the period then, yes, he just continues to serve the remainder of the term.

~-_/

I

14 ~JUDGE CALHOUN:


r

15 .:.

Well--

":'>"
J() ~ JUDGE SMITH:

o z

17 :

Mr. Chairman, I don't know whether this is the place

IX II
Ii
19 1\
20 !\
L'I
21 II 22 Ii'IIl ...' Iili

to do it or not, but if it isn't let's be sure we do it.

Let's put it where the poor fellow doesn't have to pay two

qualifying fees and run in two elections--all in six

months of each other like I did last year.

That's

just

,
un-:

believable. I had to pay two qualifying fees and run three

times

24 .IMR. SNOW:
II

2~ L.~~

This is supposed to eliminate that.

. ....--1

-- !I~- ----------------------~------- ---------~-----
II JUDGE SMITH:

2 ,'II

That's what I hope i t Wl'.11

l'AC;E 71

.I I!MR. MCKENZIE,

:1

.III'
4

The problem with this would be in the case where a

person--where the vacancy occurred within sixty days of

the end of the term hecause under this language then he

would be--he'd serve on past the end of the term.

SMITH:

This is six months rather than sixty days.

10 HR. MCKENZIE:

"A person appointed six months or more prior to the

next election shall service until the first day of January

A person appointed to fill a vac~ncy less than six

14 )_
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months .. " Okay. So that less than six months is the last six months of the term. He'll serve until the first day of January the year following his second general election. He could get a real long run there.

II ]H JUDGE CALHOUN:

19 !I
I
20 II

That's true. But then he'd have to run in the next general election. This is--I see your problem.

21 MR. BEXLEY:

221

He could serVE four years and six months, couldn't

I
23 I

he?

I 24 JUDGE CALHOUN,
I
2) :~---------------N-o--.----H-e~--w--o--u-l-d,~-s-e--r-v--e--- two years and six months but he'd

I'
have to run--what we're trying to eliminate is that a man
who--auppose the term does expire on December 31st and

somebody's appointed on September 1st .

.; :' JUDGE 3MI TH :
That's exactly what happened to me and I had to pay

I'

another qualifying fee in November and I was on the ballot

in two places in November.

Ii ',MR. HIGHT:

But this eliminates that because it says that when he

lU

appoints you, you serve past--

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oau.,.

12 ~

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That's what 1--1 want to be sure it does
HIGHT:
Yes, it does. That covers that problem.

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15 .:>JUDGE SMITH:

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I think it does too but I just wanted to

oz

17 ~"

did.

cover that. be sure it

I Ih MR DROLET:

19 I
I
II

It more than covers it.

2U I!MR. OLSEN:

II

II 21 II

For consistency's sake, the Committee adopted in Sec- I

1,1
y) 1.
!i ~ j Iili

tion II of the Judicial Article some similar language that they might want to look at dealing with the Supreme Court

24 Ii

and the Court of Appeals.

2<, IpUDGE CALHOUN:
L ' ~_,_

w-----

III

That took care of the question that Judge Smith

, I"I

raised. 1 remember that.

~

II

II 3 MR. R. HARRIS:

Ij

-, Ii

Well, basically what--as I read this it was left the

:'1I

s

;1
Ii

same, with the same language. You're doing away with the

Ii
6

concept of a six-year term sitting out there every s~x

Ii

7 II

years that could be conceivably filled by three persons

I'

1,\
H

during a six-year period and are substituting a six-year

,jIl l) II

term that follows the person because the appointment, if

II

10

made more than six months prior to the next general elec-

l:l Z
il le>: ."o.-.
12 ~
(~);~~

tion, the person conceivably would run and be elected to a six-year term is made less than--and has nothing to do with the term of the person being replaced. And I like it

,-----

14 >-
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It eliminates the need of a person to run for the unexpi red term and then--which may be a year away or two years away--and then run again two years later. So I like the concept. If it's workable, I think it's good.

DEAN PATTERSON:

I
19 ,I q
20 II II
21 I,

One problem that might raise if you have a Judge appointed for a vacancy less than six months prior to the election and others qualified to run in that election--

n \ MR. DROLET:
I

23

II
,

That eliminates that election.

I'I
24 JUDGE CALHCUl'1;

.:" I

That's tt"~lC.

lL-~

------------- ---------- ---

DFl\N PATTERSON':
2
~(
I

_, problel"l WL1Cb should be taken care of.

4

Well, now what this is written on, this is written on

--based on the idea that there will be pactisan elections.

This woula work if we had partisan elections. If we gr:

K
:1
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10

tQ the nonpartisan, it won't work. You're right. Be-cause you'd be running in November then--the only time you'd be running. See, you run in the primaries now in July which would cover this situation.

PATTERSON:

Ye3, I~-this is just a problem that can be taken care

of with the language, I would think.

SNOW:

15 .:>
,~

Wl'y should a Governor--if it's less than six months,

J() '~"".
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why should there be--why should the vacancy be filled?

.Z..
17 ~ MR. BEXLEY:

This is the point I raised with the Judge here.

20

Well, that's a good point.

21

It seems to create sort of a hybrid term of office--

that circuit that hasn't

_ - _ _._-_ ~--_

.._---_._- ..

.._-_._-_. _ - - _.. _._ .

Ii

got but one Judge.

I 2 MR. SNOW,

PAGE 75

Well, there probably would be no problem in borrowing

some Judges temporarily from the other circuits, would

S

there?

6 JUDGE SMITH:

7

I don't think we ought to put anything in the Consti-

8

tution that would possibly leave a vacancy for any length

9

of time. I don't think we ought to put a--

10 MR. SNOW:

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11 ..
ro..<....

Well, you're only talking about six--a possibility of

12 :

six months there.

~) _.~ ~ ~~ JUDGE SMITH,

~

14 ~

Yeah, but six months is a long time not to have a

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15

resident Superior Court Judge.

.CI
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I () ~ JUDGE CALHOUN:

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17 ~

What do the present election laws provide if--of

18 19
20 II

course we don't have arty non~artisan elections now. How ft,>
soon to you have to submit to the secretary of State the
nominees of the party? How far in advance of the general

21

election? Thirty days?

1

"I JUDGE SMITH:

23 I

I'm rrying to remember when I had to--

24 MR. R. HARRIS:

is held, which

is generally the Tuesday after the First MOnday, it's

three weeks after the primary and that's always in Septem-

il

il

3!

ber, so the general election's in November. So about a

month and a half.

" ! JUDGE SMITH;

I think you have to file with the Secretary of State

7

by the first of October. Because hp. has to get the names

on the ballot and has ~o print up the ballot. r don't re-

'I

member when I had to file but I think it was around the

10

first of October--about forty-five days before the election

II ,.
.Io..X...

or something like that.

@r~12 ~ JUDGE CALHOUN: All right.

Well--

14 >- MR. BEXLEY: ~

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I think you're opening up here--to hold this thing

''::"">

if) .~..

open for six months then you're going to have an emeritus

o

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17 ::;

serving some time there because the Governor's going tc

give that man eighteen months if he could.

JUDGE CALHOUN:

All right. What--well, we could change this. Just

keep the first sentence. "All vacancies in the office ...

2.3
~4 j'
i
2S il

shall be filled by appointment by the Governor from a list presented to him by the Judicial Nominating Commission. A person appointe0 shall serve until the first day of January of the year following the next general election."

[1---II MR. DROLET:

I'A(~E 77

2!

That would solve that.

I
3 ,i MR. BEXLEY:

I"I

4 I'I,

I think that would solve it all.

il

i 5 JUDGE CALHOUN:

II

6 I'I'

If he's appointed--if he's appointed two weeks before i

i

the general election, he wouldn't be able to qualify. He'sl
I

just be out. He'd just be sort of a caretaker Judge.

IU DEAN PATTERSON:

Couldn't you put a provison in here--"But the Judge

shall Be permitted to qualify for the election regardless

of qualifying deadlines"?

CALHOUN:

We could do that. The Secretary of State might do a

little screaming because of the ballot--the logistics of

getting. it out. Well, the change would just be the first

18
19 II
il
20 I
:'21

two sentences. And this would take care of the thing that George raised, that suppose he was appointed to fill an unexpired term of a Judge which says if you--I believe the present law sa~ if you're appointed. you can serve until the next general election, period.

23 IIJUDGE SMITH:

II 24 II

That's right.

25 tUDGE_~~~~_~~:_:

,

_

Which means that there's a period in there from

2

November 2nd to January 1st that's sort of in limbo. This

3

would take care of that.

-l JUDGE SMITH: i U II Let me ask one oth~r question. Mr. Chairman.

I know

we have the Judicial Nominating Commission now. But sup-

7

pose twenty years from now we wanted to change that. cou19

II

,

Ii i

you say "From a list presented to him as provided by law"?

9

Rather than putting the Judicial Nominating Commission in

10

the Constitution?

CI

Z

'1 ~ JUDGE CALHOUN:

o

Q.

12 :'"

Well.

@r~

tution and

some people we--I think

think it the plan

ought is to

to be in the Consti- i put it in the Consti~

14 .>..-.

tution somewhere down the line.

~

1:

15 .:>

now. It's not even statutory.

"
:>

16 ~ MR. SNOW:

oz

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17 :;;

It's not statutory or--

It's by Executive

Order

~: Ii DEAN PATTERSON:

1i~

I think it wou1d,desirab1e for that to be in here.
~o iIMR. R. HARRIS: I'

~221 I
I
II

Back to that appointment thing just a minute. what's the problem in allowing them--the person appointed to fill

23 II
I'II

a vacancy to serve for the remainder of that term of

II 24

office even if it's five years or three years or whatever?

2~ __ ".__ . \lIlJ~UDG~E S.M ,,_~ITH:

_.

.--J

l'_\GE 79
The idea of taking away from the people the ri~ht to vote for the person that's filling an elective office. A man could die even before he went into office--before he took office. You would be appointing him for a full sixyear term--four-year term.

I

7I

What happens--I think I know this and I can't rememberr

u ,I
o II

it--but if a person dies three or four days before the

9 II

general election--a Judge?

10 .., JUDGE CALHOUN:

z

11 ...
'o.0".-.

Well, under the present plan the parties select some-

@);:jMRO body as a nominee. HIGHT:

--_/

I

14 .>..-
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Otherwise you'd have a special election

15 '.:.,>MR. SNOW:

:'>"
16 .~..

That's right But that's in a partisan election.

~
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17 ~MR. HIGHT:

IH II
19 I

It would be in a partisan but it could also--just like' you'd have in a municipality in nonpartisan--the same way.

20

If you've got a nonpartisan--a person running on the balloti

!

21 Ii

now, they'd run right along with the others. And you'd

22
I

just change it; they'd run in the general election.

I

23 IDEAN PAT'l'ERSON:

24
25 I ll

What about the idea of appointing a successor to fill

the--for the term of office?

-----

------ -- --------

PAW-; 30

CALHOUN;

2

Well, as Judge Smith pointed out, you're taking the

people's cho~ce away from thp.m. They elect a Judge to the

4

Court of Appeals now for six years and he takes office on

5

January 1st and dies on February 1st and the Governor

6

appoints somebody for six years.

7 DEAN PATTERSON:

But how often does that happen? And does it h~ppen

f.J

often enough so that that's likely to constitute--

10 JUDGE SMITH:

'z:J

.. II ... eo..x.

Well, the retirement system is mandatory at seventy-

~r~ ,~,

12

Of.
..U....

z

~ MR.

nine. HIGHT:

It could happen a lot.

14 .>..x~ 15 .:.
"Of.
:>
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17 ~

Judge smith has also raised another question about, you know, if it says "as provided by law," you've got something that's going to create a legal entity under the law. What you've got here--just a Judicial Nominating

lR

Committee is simply spelled out. It doesn't necessarily

19

provide a legal entity--could be or could not be.

m MR. R. HARRIS:

11 'I

Well, it's going to have to, otherwise, elsewhere be

II

22

Ii
III

placed in the Article, which I think it should be.

Ii

23 tl JUDGE CALHOUN:

!'IIi

24 I'
II

Well, is there any motion that we amend this to pro-

25 lIIL.

vide that they serve the remainder of the un--the remainde~i
,
--'._..- -_._----'

PAGE 81

of the term of the judge whose place he takes?

2 MR. R. HARRIS:

J

I move it.

4 DEAN PATTERSON:

5

I second.

6 II JUDGE CALHOUN:

I

7 ,I

All right.

You've heard this motion that we change

1\

8

ii
IiI

where it now reads "shall serve tintil the first day of Jari4

9 II

uary of the year following the next general election" to

10

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12

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"shall serve the remainder of the term of the person whom he replaces," or words to that effect. As many as favor this motion, raise your right hand. [A show of hands.l All right. Any opposing? [A show of hands.l Four in

14 >!:;

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IS .:.

"IX
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16 zIII w

0

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17

oX
ro

favor; six against. All right. That motion is lost.
Then if there's no further objection, paragrai Seven as
t changed will be adopted.
Paragraph Eight, compensation--

Ik MR. 'SNOW:

I')

Let's make sure we know what the change in there.

II

W 'II

It's really in the second stentence. A It person al!pointed

II

i

21

shall serve until the first day of January of the year

n

following such general election." And the last sentence

23 I'

goes out?

24 I JUDGE CALHOUN:

25

III
ll

~_~ ,

R~9ht

Paragraph Eight is compensation.

"Judges of

rr-----
Ii
2 !i

PAGE 82
of the Superior Courts shall be paid adequate compensation as fixed by the General Assembly which shall not be reduced

3

during their term. Judges salaries and necessary expenses

shall be paid out of the State Treasury. Judges of the

s

Superior Courts may receive such supplement to their com-

pensation from their respective counties or circuits as

may be provided by law." Any objections? Yes, sir. 8 MR. HIGHT:

This is the same language that's already been adopted

to

previously just in general that applies to everybody in an

II ,-
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earlier section.

0-

w

@"=~~12 ~MR. OLSEN: And adopted at the last meeting.

14

I
.~.. MR.

DROLET:

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IS ~
Cl

All Judges, DA's, Justice of the Supreme Court.

'~"

CD

16 !ozJUDGE CALHOUN:

<l

17 ~

All right.

18 IMR. BEXLEY:

i
19 !i
20 IilI
II
i 21

Is there any way they could do anything of the salaries of some of our Superior Court Judges out in some these circuits? They're not too well paid.

\MR. SNOW:

I
I

Now, you'll have to renumber all the rest of the

24 I

II ..... paragraphs.
25 JUDGE CALHOUN:

-----_._-_ ---------_._-- -- .._._~-

. ... ~.~

-----~._- ~------~

,--_.

PAGE 83
You mean you don't think this is necessary in here

then. Does the preceding Article provide that they may

i

3 i!

be supplemented?

"

,I il MR. OLSEN: I,l

s Ii,

Yes, it does.

It's Section X ~nd it provides

6 II

that "The General Assembly may authorize any county to

1\

I,I'

supplement the compensation and allowances 0f a judge of

HI

the Superior Court and District Attorney of the Judicial

9I

Circuit in which such county lies out of county funds . "

10

That's in the material--the amendments that were made at

"z
11 .... oIl<
",

the last full Committee meeting.

12 ~.JUDr;E CALHOUN:

(~@--)/)."/-

~
I

Where is that?

14 .>...-MR. OLSEN:

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15 .:>

It's on page six of what's called attachment one.

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16 .~.. o

It's part of Section X, Salaries of Justices, Judges and

Z

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17 ~

District Attorneys. It's a uniform provision for all of

IS

the court officers.

19 JUDGE CALHOUN:

20

All right. The motion then is to delete it here as

21

being unnecessary? Is there any objectionto that?

22 JUDGE SMITH:

i

23 I,

I don't know whether--I haven't found what he's refer-!

: ~R'~::::: ~__._~ . ..,.

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['

_. __ _,--------- ... -'--'~'----------'--'-

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It's on seventy-two.

PAGE 84

2 II JUDGE CALHOUN,

.3 I'j

Seventy-five really it starts, doesn't it?

4 i MR. SNOW:

5

I was thinking it was seventy--oh, it's here on

I

6

Compensation and Allowances of Justices, Judges and Distriqt

ii

7 IIII

Attorneys. It's on page seventy-four if you've got your

8

previous copy that we were working from the last time. It

y

says "The Justices of the Supreme Court, the Judges of the

10
11 ".z..
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14 ..>....<xl
15 .:.
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16 '.z".. 0 Z <l
17 'C"D

court of Appeals, the Judges of the Superior Courts and the District Attorneys shall receive such compensation and allowances as now or may hereafter by provided by law." And then it goes on to say "The general Assembly may
~t~t{;~'.i.L any county to supplement the compensation and
allowance of a judge of the Superior Court and District Attorney of the Judicial Circuit in which such county lies out of county funds .. "

18 JUDGE CALHOUN:

19

This proposal that we have is a little different in

20

that it provides that "shall not be reduced during their

21

term" of office and it also provides that Judges shall have:I

..->1 ~

salaries and necessary expenses. It also says that they

23

shall be paid adequate compensation. Now, I don't know

24

where that--

25 t~~~~-~:~---~~-

PAGE 85

. ~ ~----~-~--:hin~--:-~:~- we--by general definition in the C~:S:-i=---)
i

2

tution, though, compensation and allowances have been put

J I,

in there to include expenses. And we try to make that

Ii

4 II

language uniform throughout the new Cons--the 1976 Consti-

;1

Ii

~ :,

tution. And it is uniform in that--in the--all the

II

6 Ii

Articles of the new Constituion.

7 IIII JUDGE CALHOUN: ,!

Well, ! have a--

NICHOLS:

10

They couldn't reduce the salary anyway unless it

CI Z

J] Ia< ..o....

specifically said it could. And it's not set in the Con-

J2 ~
@r~

stitution. You can't reduce any officer's salary during the term--elected official's.

. 14 .>..-MR SNOW:

~ :z:

15 .:.

I move that Paragraph Eight be eliminated.

"a<
:>

16 l~D MR. R. HARRIS:

oz

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17 ~

Second.

I 18 MR SNOW:

I 19

And the subsequent paragraphs be renumbered.

I

W IJunGE CALHOUN,

21 'I

Any objection to that? All right. Motion carried.

22 IIDEAN PATTERSON:

23

Excuse me. Back on Paragraph Seven again. It's not

24

clear but it occurred to me that by the deletions the

25

second sentence probably should be changed. Because you

PAGE 86

~~-----Si~~lY ~ave it-:A-~~-;son apPointed-:-;~-months o~--~o~e

II

II

2 Ii

prior to the next"--

ii 3 "JUDGE CAI,HOUN:

4

We did that.

il

> Ii MR. SNOW:

\)

We deleted "six months or more prior to the next

general election."
11
8 JUDGE CALHOUN:

l)

10

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o...

I (~_~?'J"J.~

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15 .:>

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18

19

20

21

11

Paragraph Nine. "Associate Judges of the Superior
Courts shall perform such duties as may be specified by
law. The General Assembly may provide the Judicial Coun-
cil the authority to specify the duties of the Associate
Judges." This is what we talked about before that it
I
would be up to the General Assembly but they could delegat~
I
it. Any objection to that?
All right. Then it says "All Judges of the Probate
Courts, Juvenile Courts, State Courts, the Civil and Crim-
inal Courts of Chatham, DeKalb and Fulton counties in ex-
i
istence on the effective date of thie Article shall become I
Associate Judges of the Superior Courts in their respectiv,
counties and circuits. Such Judges shll exercise the same
jurisdiction and shall be compensated in the same amount

and from the same source as now compensated. Provided,

f

however,

that

the

General

lit') Assembly by ~ may

change

the

and the amount and method of

r-their compensation."

2

Now, this list here may not be all inclusive but the

idea is to take in all state Courts and Probate Courts and

Juvenile Courts and courts on that level. Marty just

pointed out to me that they have a Magistrate's court in

Richmond County which really is a sort of a state Court.

This would be a logistics problem. We'd have to pUllout

of the present statutory law all these courts and include

them here because that would be the purpose of it.

lU MR.
"z
II ...
'o."".-.
I2 ~
@F-~

SNOW: Terry, we've had a massive number of Small Claims
Courts that have been set up in the last two years. Would this come under the State Courts?

14 ~MR. MCKENZIE:

~ :r

15 .:.

No. No.

~

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16 m~ JUDGE CAI,HOUN:

oz

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17 ~

As of now, we've made them Magistrates.

18 IMR. MCKENZIE:

I.

19

We've got a couple of State Courts that have Small

20

Claims Divisions, too, in addition to these. Therf! are

21 Ii

about sixty-four regular Small Claims Courts, about

22

fifty-four or fifty-five State Courts and a couple of

23

those have Small Claims Divisions in them, some with a

24

separate Judge. So that's going to b~ a logistics problem

Magistr~tes rather than Associate Judges. That's only iI

2

matter of picking out where everybody is now .

.3 DEAN PATTERSON;
Are you talking about courts of original jnrisdiction

other than Superior Courts?

6 iJUDGE CALHOUN:

T think that Justice of the Peace also is

a court of original jurisdiction. UndE'l- the ConstitutLJf\

he has jurisdiction up to 1wo hundred dollctrs. So I think

10

we just have to name there.

".~
! 1 ~DFAN PATT'F;RSON:

o

0..

~

oJ: U

I was wondering if there was some general language--

"-

~.
z
~JUDGE CALHOUN:
~

I understand what you're saying. No, sir, I don't

IS .:>
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16 .~.. Q
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17 ;:;

believe you can just say courts of original jurisdiction. The idea is to bring under the--into one court--consolidate all these courts into one court and to provide that until

18

the General Assembly does act that they would continue to

j9

perform the same functions they now perform but they'd J ust;!

1

I

I

20

--they'd be called by a different name. Like we'd change

all the--the City Court of Thomas County to the State Courtl

of Thomas County by one general act. Is there any objec"

tioD to the tentative adoption of this provision?

rr-- - ---- ---- -------- --------- ---.

il Ii

Like this Probate Court, are we not giving the status of

2 II il

Probate Judges, Associate Judges, Superior Court Judg~s--

.\ I.,I

they're not lawyers, you know.

I,

,j Ii JUDGE CALHOUN:

I!

) IIII

That's true.

That's true.

But they would continue

o 'II

to perform the functions they now perform unless the le9is~

iI

lature designated otherwise. I think it's necessary that

,I

I:

"i

we make some effort to protect the people who have been

9 IIII

elected by their electors.

10 MR. BEXLEY:

<.'

! I .Z.. 0-.

I agree with that. But, I mean, down the road are

o0.

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we putting the non-Iawyers--giving them the prestige of being a Superior Court Judge?

14 ~JUDGE CALHOUN:

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15 .:.

Right. We are doing that and I don't think that's

~

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... 16 zIZl

necessarily bad. We're also providing that they'll always

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be able to offer for this job no matter if the qualifica-

18

tions are later changed dnd the legislature say in order

19
I
20 .1
II .) I I'I,
II
22 II
23 I,
!

to be an Associate Judge you have to be an attorney with so many years experience. A Probate Judge who's ~ot an attorney would still be eligible to run for this job. It would be up to him to get himself elected, of course, but he would not be eliminated. But that's further on down

24

the line.

25 I~~_~_._~~~_L~Y :

Yes, it does.
._

What is the ultimate goal of putting all these under

2

one umbrella?

,TUDGE CALHOUN:

Of course the ultimate goal is to have one court

system which is manned by qulaified people. That's the

ultimate goal. But you've got to do it in steps. I don't i

7

think you can do it just by one fell swoop. You just have

to putyour trust in--which I do--in the General Assembly !
to provide for that later on and this does give them the

10
,z-' 11 ~MR.
o.Q...
12 ~
@ri 14 ~ f~ :r. IS.:> ":'>" 16 .~.. o Z <l 17 ~

authority to do so. SNOW:
Through the course of the past many years, the jurisdiction of the Probate Court in many counties has been changed by law or by constitutional amendment in those counties. And there has been a great effort in many of the counties in Georgia to upgrade the Probate Courts and the qualifications of those courts. And ultimately it

18

would be thought that this would be the end result--that

19

in many counties, the Probate Court could even be elimin-

20

ated wh~re it's not--it's a very small county. But that

21 !,

would again be a matter that would address itself to the

22 II 'I I' i

General Assembly and local legislation in those counties.

MR. BEXLEY:

24

Well, you made mention of the Magistrates. Would theyi

be included as Associates too?

rr-.-.-.-.---------.-------.---------.-----~-

I,i JUDGE CALHOUN:

!

2

Well, that's provided further on.

I'.\.CE 91
They'd be Magis-

trates--be called Magistrates. That's provided further on

in the section.

All right. Is there any objection--any further dis-

cussion. All right. It's unanimously adopted.

The next paragraph: "All Clerks and other office per-

sonne1 of such courts shall become Deputy Clerks of the

10
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Super10 Courts of their respective counties and shall be compensated in the same amount and from the same source as now compensated. Provided, however, that the amount and method of their compensation may be changed as provided by law ...
Many Probate Judges have clerks and some Small Claims Court Judges have clerks and some Juvenile Courts of course' have clerks. The idea here is to consolidate all the clerks offices into one office so that all suits would be

filed in one clerk's office and be handled under one

system. And we've provided they'd still be compensated
I
from the same source theY'r~now =ompensated until the legis~
I
lature does something about it.

This may create some problems where they're compen-

sated by the Judges themselves, I think in some cases. And he might terminate those people. But at any rat.e, I oidn't

I.:; t Iii>' r e :1 n y - - i '3 there

IT--
I: II:I
2
II
3 !" i

J'ALL~ 92
any objection to th~_s provision? [No response.J All right. We'll go onto the next one. "All persons
who become Associates Judges of the Superior Court under

4

the provisions of this Article by reason of their holding

5

office as judges of other courts prior to the effective

(,

date of this Article, shall always be eligible to serve as

7

Associate Judges of the Superior Court of their respective

11

circuits regardless of education or professional qualifica~

-)

tions." This is the grandfather clause which gives these

lO

people the opportunity to offer and, if elected, to sp.rve

...,

z

i 1 ~ JUDGE NICHOLS:

oa.....

j2 ~
~~S~~,r~~~

Marcus, let me ask you on that question: Areen't we just really perpetuating a bad situation. The trouble

---

14 >-

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now is in the counties--if you read that letter I passed around--and that is duplicated allover Georgia. District Attorneys are just swamped and inundated with pleas for motions for commitment hearings. Now, in these counties

where you've got an illiterate Justice of the Peace that

doesn't--some of them can't even read and write. And I'm

not speaking derogatively of them. I'm just telling it

like it is. I blanked out the names in that letter so you

wouldn't know what county we're talking about. But they

can't hold a commitment hearing. What you need a Magis-

ti
25

trate for is to be able to handle commitment hearings, all
~~e-t:ti~:__~~d pre_~~~di_ct~e~~ hearings where you can--and

rr- .---.-------- --._--... -----

PAGE 93

il

set the bonds and bails. That's what you need. We've got

2I

JP's now. And the reason they can't function is because

they're not qualified. And we say in here--and I know the

problem you're up against--the ideal situation as I see it,!
,i
which we can't get, but I want to go on record as having

said this. I have advocated this for years and I know

what a difficult time it is. The ideal situation on the

unified court system--and the only way that it's ever

going to work--is to have all your Judges including your

10

municipal courts judges--this business of revenue-raising

courts--with your Magistrates--they could try your traffic

cases--and all funds--revenues--should go into the State

Treasury. And the State ought to pay everyone of them.

You'd do away with parttime Judges. That's one of our

biggest headaches--parttime Judges, practicing law and

being a judge at the same time. But I say that's down the

line. But we've got immediate problems facing us now that

Ii'!

with the tremendous amount of criminal business particu-

19

larly that we have in this State and growing by leaps and

20

bounds, without a Magistrate--a qualified Magistrate--in

every county in this State, to hold preliminary hearings,

commitment hearings and pass on the bails and bonds and

23
I 24

advise defendants of theirrights--no~, you can't just pick up somebody out here in the road that's a Justice of

l __. 25 I

~~e

~:~:_~_:nd

P~~__h~:_~~._ an~_~~ ve

him

a

Code--a

1933

Code--
___ .----.J

PAGE 94

[,TI

Ii '~

and say this is it now. You're--and besides they're

working. They have to make a living. They don't have tim~ I

3

to do this. But to face this thing head-on, we've got to

make some provision and the people are entitled to it--

we've got to make some provisions to provide for people who

are arrested, just as pointed out in this letter. A

-;

brother or sister can go out and swear out a warrant with-

out any reason at all. There may be nothing in it to jus-

<)

tify it. But that fellow can go to jail and stay until

10

the next grand~ jury meets and not have an opportunity to

be heard. Why--because you haven't got a qualified man

to pass on his bail and the Judges--the Circuit Judges

don't have time. They're traveling allover the circuit.

So that's why we ought to meet this thing head-on. I know

IS .:>
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17 ~
IS I
19 I
I
20 I

it's going to step on a lot of toes and I know that Justices of the Peace get rid of lots of--they have in the past--lots of trash that we keep from going into the courts. But the Magistrate can do that. But in order to have somebody competent to pass on this, you're going to have to have somebody knowledgeable in the law as Magis-

trates and to get that, you're going to have to pay for

:: II
I,[

them. It's just like anything else.

I: 23 DEAN PATTERSON:

24 I

Mr. Chairman, I move that we amend this provision to

t2~ II

r~qUir_e _~ha_~_~~_=__~~_~~~.=~~e_ Judges be required to be membe~~

PAGE 95

of the State Bar in good standing

.2 JUDGE CAT.HOUN:

,

3 Id

You've heard this motion.

4 Ii

motion?

Ii
II
Ii 5 MR. BEXLEY;

6 II

Second it.

I 7 JUDGE CALHOUN:

Is there a second to this

8

All right. Let me say that the Chief Justice is

9 II

right, that we would perpetuate a bad situation in some

10

cases for as long as this particular individual lives or

"z
J I ....
...o0:
Q.

could be elected.

@ ..-12 :

that--

i'TUDGE NICHOLS,

But the General Assembly could provide

14 >.... '"
:r
15 ~
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16 ~
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Well, what l'm thinking is ti 11 the end of the next term--grandf.thered in till the end of their term. Then the legislature could pass some qualifications for these offices. Then they could run if they're qualified. That'

I lH I 19

what I'm saying--that we've got to have a stop-off somewhere where you're going--if you're ever going to get any

20 \1

qualified people. Then they would have an opportunity if

21 II

they're in office now, during the interim, to qualify

22

themseJves if they could. But most of them work at a

23

cotton mill at night--youknow that, the JP's, in order to

24

make a living. They've got a family and they don't know

25

anymore about the law than a pig does Sunday.

, lr-- -------------

PAGE 96

J I JUDGE CAT... HOUN:

I

2 II

Well, the idea al>out this is that if the General

i!!I
3

Assembly makes the job attracti~e enough so--and if they

set qualifications--say, the General Assembly says that in I

order to ee a Magistrate you've got to be a lawyer or

you've got to be something else. And if the General Assem

bly makes the job attracti~e enough that you could get

somebody to run for it who has these qualifications, you

should be able to convince the people that he is the one

10

and the ~ndesirable person would be eliminated. But I

"z

11 ..
'oQ."...

think it would work out that way and I think thal maybB

@\ i12

we should try to see what's possible--

Jr ~JUDGE NICHOLS:

..14 .~... J"":
15 .:.
":'>"
16 .~.. oz
17 ~""

Marcus, let me just say this in furtherance of my argument about this which you're well aware of, I know. Butfhese people that are picked up on these warrants, they're entitled to a commitment hearing--a commitment

18

hearing within seventy-two hours. And if they don't get

19

it--of course we haven't had a deluge of them saying it--

20

but you've got to turn them out if you can't give them a

21

hearing. And if they know that--and most of them don't

22

fortunately and they languish there in the Bastille until

they can get a grand jury or a commital hearing or until

overburdened

And that's why--
I _ _ _ _ _ _ _ _ _ _ _ - 1

PAGE 97
----1
I
we're permitting the law to be violated by not furnishing I

I

2

them with it. Because they're entitled to a commital

I

3

it'j hearing and there's nobody to give it to them. Unless

4

a Superior court Judge.

5 JUDGE CALHOUN:

6

All right, sir. Any further discussion of this?

7

Yes, sir?

8 MR. ROBERTS:

I

9
10
"z
11 ...
..'o"....
@;~ ..! 14 ...... :z: 15 .: "'::"> 16 ~ ..o Z 17 :

I can understand the JUdge's point here and I under- !

stand it very clearly--what he said here. But I know

I I

I

down--of course this is just individuals--I know some

I

I counties are handled in this particular way because I've

been associated in several meetings--probably in the

i

twenties--seminars that Justices of the Peace have held ov,r

the State of Georgia and I'm sure he's right. And of

I

i

course I can see his point. But down in Clayton County

i

I

I

where I live, we don't have this situation. Of course in I

18

a lot of counties you have it. We've been trying for more

19

than two years to get mandatory education for the Justices

20

of the Peace in the State of Georgia which will eliminate

21

these people who are not qualified to hold the office. I

22

think the legislature's going to have to provide that for

23

us, which we have a bill now.

24 JUDGE NICHOLS:

25

Well, I'm glad to hear you say that.

- I~-~-

IV;}

PAC}:: 98

a Superior Court Judge and I has to appoint Justices of

2

the Peace ex-officio, you know, you had a Justice of a

3 I:I:

Peace and then one that's elected and then the grand jury

"

Ii

4 'I

appoints and an ex-officio Justice of the Peace. Now,

II

5 il
I:

in Rome we don't have that problem because we've got--the

6

I"I
III'

fellows that are appointed are qualified. I saw to it

il

7i

that they're qualified. But you--in other counties--well,

II

R 'I

that letter that I passed around here, I get them all the

I'

C) II

time and that's a problem allover this State. of course

10
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11 ...
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12 ~
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there are exceptions in the counties--in certain counties. But the vast majority of the counties do not have a qualified Magistrate that can hold a commital hearing and advise the defendants of their right. And they're entitled

14 .>..-

to a hearing under the law within seventy-two hours. If

'C"

:z:

15 ~

you don't give it to them, you've got to turn them loose,

"'=">

16 .~..

if they make the motion

o

Z

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17 ~ MR. HIGHT:

18

I was going to say in one area--of course throughout

19

the State we've got a lot of counties where we don't even

20

have a lawyer present in the county. You've got two sides

21

to the issue. What I think Judge Calhoun is saying is that

22

what he proposes, in fact, accomplishes the result but overl

23

a longer period of time to provide people these particular II

24

services. In many counties you would not have those peoPlej

25

present o~_~_n~~~~_d~_-=-h_~~~~~=h~t could perform that S~~~~_ice~_._J

PAGE 99

They're not there now. Where there's not a lawyer in

2

that particular county and this is not just one county but

3

a number of counties throughout the State of Georgia.

4 JUDGE NICHOLS:

5

But, Tony, you could have one in the district--cer-

6

tainly, one of these ten Judicial Districts.

7

8

Of course in the Article that we're talking about

9

right now, the Associate Judge is not Magistrate.

10
II
12
@t~

JUDGE NICHOLS:

"z

I-
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Well,

u'."..

Judges.

Iz-
~JUDGE CALHOUN:

we're

talking

about

making

them

Associatet

... 14 >I :z:
15 ~
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IH

No. Not Justices of the Peace. They would be Magistrates. That's another section but we're going to discuss that in a minute and the motion is all Associate Judges of the Superior Court be attorneys and members of th~ Bar. Now this would eliminate the Probate Judges who

19

are not members of the Bar and some Juvenile Judges who are!

I

20

not members of the Bar, although under the law, they have

21

i
to be replaced by members of the Bar. And I'm sure there's!

22

no state Court Judges who are not now members of the Bar.

23

The main persons affected would be those Probate Judges

Probst, how many

!'\(;E 100

JUDGE PROBST:

2

Yes, sir. Out of the 159 counties, there are between

3

nine and twelve Probate Judges who are attorneys.

4 JUDGE CALHOUN:

5

So there are 150 who are not?

() JUDGE PROBST:

7

Yes, sir.

JUDGF. CALHOUN:

You see that political problem you're creating?

10 MR. SNOW:

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1I l-
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12 :
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Well, you've got a problem in some of the counties where you will not have a member of the Bar who would be able to run for Probate Judge.

14 ~JUDGE CALHOUN:

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15 ~

All right. Yes, sir?

.":'>"
16 ~ JUDGE PROBST:

"z 17 ~'"

~nder the language that says--this is in the fourth

lis
I 19
I 20

line--it says "Such Judges shall exercise the same jurisdiction and shall be compensated in the same amount and from the same source as now compensated." Under the same

21

jurisdiction language, are you representing or contemplat-

22

ing that this can be changed on a couty by county basis

23

or a district--judicial circuit by circuit basis so that,

24

for example, in Fulton County where the Probate Judge and

the Juvenile Court Judges, State Court Judges are all

:

_

-J

~

PACE 101

attorneys, that if there you could combine the Superior

::

court into one Superior court with divisions?'

3 MR. SNOW:

~

They would be part of the division and they would be

)

able to serve and in the Superior Court if they were

needed. I mean--

JUDGE PROBST:

I'm focusing on the same jurisdiction and what I'm

9

saying is under that same jurisdiction languate, if this

10
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12 ~
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went into effect, I would be the one who would hear the Probate--the cases that are now the Probate cases. The State Court Judge, Juvenile Court Judge, other Superior court Judges, they don't--they would not hear original

14 >l--

cases concerning Probate. Are you saying that in one

~
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15 ~

county or in one circuit, the legislature could change that!

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if they wanted to?

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17 :MR. SNOW:

Hi I

That's right.

19 !JUDGE PROBST:

I
20 i

So that any Judge of the Superior Court, whether he

21 Ii

was a regular Judge or an Associate Judge, could hear Pro-

22
I
23 I
I
I

bate matters. On the other--conversely, I could hear misdemeanors, felonies or whatever. And that could be done

24 , I o n a circuit by circuit basis?

25 I!MR. SNOW:

,

-------------------_.----------------_._----.

Cert.ainly.

JUDGE SMITH:

And what you're saying--

4 MR. BEXLEY:

What you're saying in essence then, a non-lawyer

could have--could be a Superior court Judge out there. I

don't want some of these people out here serving in some

~

of those capacities, judging me or any of my clients that

,

Ii <) ~ i

I represent because I don't think some of them would be

10

qualified.

"z

II ~ JUDGE PROBST:

o

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Well, that's why--that's the ~oint of my question is that I think the ones that are attorneys--that's what I

14 .>..-
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17 ~

wanted to say is could it be done on a county-by-county of . circuit-by-circout basis so that in counties where the Judge meets the qualifications of a Superior Court Judge, he could do the same work.

JH

Let me just interrupt one more time. Let me say this~
j
If you take out the word there "shall always"--just shall
be eligible to serve as Associate Judges. Always means--
that sort of gives--where the legislature might not do any~
thing ahol1t it, always is a long time. I understand what
you're trying to do and to get it passed, you've got to do

JUDGE CALHOUN:

All-right. That suggestion would be line three of

Paragraph Three--strike out "always." Jus t say t' s hall be

4

eligible to serve regardless of educational or profes-

~

sional qualifications." And of course the General Assembly

h

can change the qualifications. But we have a motion now

II

7 i'

that it be deleted and be substituted that all pe~sons--

I!:i

8 II MR. SNOW:

I

') IIII
II

Read the next paragraph.

10 JUDGE CALHOUN:

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11 ~
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"The General Assemhly by law may increase or decrease the number of Associate Judges of the Superior Courts in the circuits of this State and may prescribe the qualifi-

14 .>..'<
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16 ''~"" ~ <z> 0(
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cations for such Judges not inconsistent with the provision~
I
of this Article." Which I take to mean that they can say
that hereafter you'v~ qot to b~ a lawyer j but if you're
already one, you can still run. ~nd that would be the

grandfath~r clause. But it's been--motlon's been made by

Dean Patteronthat we delete that and say that--provide in

the Constitution that you have to be a member of the Bdr

8nd it's been seconded. Now, we

22

pretty fully so as many as favor

t !~.ink J
th;lt all

Associat~ Judges as of the effective date of tl,e f"onstitu-

tion--of the Article must be lawyers. Is t.hat i t or 211

.)

I w ':, 11 J d t 0, Q h a v e any b (J j (! c t: ion t o t . h ~ 9 ran d fat her

.'

C]dns'~

ii

TJ th~ end of thpir term; IS that it, now? Of courSE!

,)

this

the grandfather clause. The grandfather clause,

as I take it, goes on and makes you eligible as long as

you can yet elected.

0 i DEAN PATTERSON:

III
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W"ll, I think it's desirable to rpquire that all Associ<lte ~'uGges will be :nemh~rs of the State Bar in gOl)d staudi.n']. Ano if--and I think it's important that that provision be in the Constitution.

--

14 .>.. -JUDGE CALHOUN:

~

I

15 .:.

Is yOU! motion, then, that they, with exception of

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16 ~ w '1": <l
17 ~

those now servlng, that all AssociatA Judges in the futur p , must be members of the State Bar?

IH I' DEAN PATTERSON:

19

Yes.

m I JUDGE CALHOUN: I,

\1
21 I'I,

That changes it considerably. All right. Does

II

22

:Iii II

one unde r stand what Dean Patterson is sugges ting lI.o~'1?

IIMR. 23

BEXr.E Y :

Ii
24 II
II
t_ 2." ij

Well, I thought that was his original motion when I seconded it. Under th~ grandfather clause you would serve

p:\ta.: 105 you were then serving, but--

as the Dean now expresses it, you would serve

:i

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!iii

out the term that you are now serving and you would also

c) I!:i

be eligible for re-election.

I,

() II"ii'' JUDGE NICHOLS:

I'

7 II

Unless the law is changed.

Ii

II

II'I
ii MR. BEXLEY:

y II

Oh, and no one else. I see.

10 JUDGE CALHOUN:

11 ".z..

And it would require the the legislature take some

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action to provide these qualifications.

;::

~JUDGE NICHOLS:

~

14 ."><..'l. r

It's flagging it, in other words.

15 .:>JUDGE CALHOUN:

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Which does protect all existing officeholders. As

0.z..
17 'c"o

many as favor it, please raise your hands. [A show of

1&

hands. ] Any opposition? It seems to be unanimous. All

'I

19

right.

20 MR. SNOW:

21

Have you got that language as to the way it will now

22

read?

23 IJUDGE CALHOUN:

24

No, I haven't.

25 L~~ODGKINS:

__ _- - - - - .._. ._._-- _.- ._-_..

1'AI.:E 106

Mr. Chairman, can we just get with Dean Patterson

2

afterwards?

3 MR. SNOW:

All right. If you would. Let them get with Dean

Patterson afterwards. ii () I,: JUDGE CALHOUN:

That will be tentative.

But you understand the sense of it 15--

MR. BEXLEY:

It's going to be redrafted. 10 JUDGE CALHOUN:

11 ....
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12 ~
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We had a provision that everyone other than Judges now holding office in the future must be members of the State Bar in good standing.

14 ~I MR. SNOW:

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17 ::;

~tdt language will be av.ilabl~ to us 'at the next meeting. We'll take that up first to see the proposed language.

lIS IIJUDGE CALHOUN:

19

All right.

20 IMR. LUNSFORD:

21 II lJ III,
I!:i

Mr. Chairman, if I could just make one point. The language now reads and it would appear that someone who'd

be a Probate Judge CQuld come in under the grandfather

clause and possibly be able to run for the position that

l'.-\(;E 107

capacity of a State Court Judge changing jurisdiction. If

I could just mention that possibility and suggest that tha~

3

possibility be excluded when the language is redrafted.

;

4 !i

Is my point clear?

II

Ii5 JUDGE CALHOUN,

6 II

I understand. All right. We come to--I have a note

II

7 IiIi

here that we didn't include in here nonpartisan elections.

I

8

But that provision would go next--be the same provision

I

i

9I

that we suggested for Superior Court Judges, that they be

10
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8,-112 ~ 14 .~.. ~ :r 15 .) CI '"::> 16 ~ <z:> <l 17 ~

elected in nonpartisan elections without party designation and "The term of office shall be four years and until a successor is duly selected and qualified, provided that all Associate Judges holding office on the effective date of this Article shall remain in office for the term'to whic~ they were elected."
And I don't know of anybody who has other than a fcur-, year term but there might be. Yes, sir.?

lis MR. R. HARRIS:

19

Thc--I would like to at least preface that provision

20

with the phrase "until otherwise provided by law." The--

as far as being elected and I have some concerns about con

vcrting the now-appointed Juvenile Court Judge to an

23

elected status, which is what that would do. I'm inclined

to think that the Judges of the Superior Court are honestly

person to be the Juvenile

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Court Judge because of the nature of that job than the electorate in a wide-open election. And I would like to-I can in my own mind envision that somewhere down the road, that perhaps Associate Judges either would be made Superior court Judges with divisions or that Associate Judges would be selected in a manner other than electioDs. So if we're going to add--and I was really going to keep

1\
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to

quiet becuuse I knew we had left out this provision about them being elected--but since it's going to be put in, I'd like to preface it with "until othe'""wis,' provided by law,"

II ...
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and to make dn exception with respect to th~ Juvenile Courti Judges,

l-7,
~ ,lUDGE CALHOUN:

Well, I have no objection to that or to leaving out

15 ~

elections altogether, just leaving it up to the General

"a.

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16 ~ ow

Assembly as to how they'll be selected.

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17 "a.'MR. SNOW:

IH II 19 'I
I

Well, the provisions are already there as to how they're now selected. So unless we say something about it, that would continue in effect.

21 I!JUDGE CALHOUN:

22 I
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13 II
24 ii
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25

All right. Well, that's not in there. I had a note to put it in there so it will just be out. We'll say they'll be for four years until a successor is selected and qualified, provided that the one holding office shall

in office for the term for which they were elected.

And Juvenile Judges are appointed for six years. So the

wording would be as it is in the draft which you have be-

t:

4 Ii

fore you now. In the last sentence--I mean the last para-

5 IIi

graph, just change hhis" to "a" successor.

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thing else, now.

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7 II MR. BEXLEY:

We do have som~-

H II

And it would be on a nonpartisan basis.

II
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9 Ii!i JUDGE CALHOUN:

II

10

Is there any objection to that? All right. It

,] '"
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stands adopted.

.u'".. JUDGE PROBST:

Now, we--yes, sir?

gn-(;' you get all the Judges up to the--once you get

.>.-

them all attorney and so forth--up to the qualifications

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15 .:.

of the S~perior Court Judges, is there any reason then

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for the one to be four years and one to be six years?

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17 ~ JUDGE CAT.. HOUW:

r don't think so. I think we do exactly what they've

done in Illinois, which is take them all in as Judges when

we reach that point.

PROBST:

Well, then would you say "until otherwise provided by

23

law the term of office for Associate Judges shall be four

I'A(;E 110

We could do that although we had up here earlier that I

'2

you know, we provided they could change it.

3 ,! JrTDGE PROBST:
I didn't--the way I understood it, once you are an

)

Associatp Judge, you stayed an Associate Judge even though

(J

your jurisdiction wasn't changed.

.MR. SNOW:

Well, I think when we say down here in this last

paragraph shall be ~or four years, though, that we're

10

putting it in there.

'"7"

; 1 ~MR. R. HARRIS:

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YQIJ're locking it in.

Why don't we just say as provided by law?

15 ':>MF. R. HARRIS:

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Or "Unti 1 ot"herwise provided by law, the term of

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17 :

office for Associate Judges shall be four years."

IH IIJUDGE CALHOUN:

19 I'Ii II

All right. That's okay. Now, we come to Magistrates.,

20 II ii

"Each Superior Court Circu;"t shall have the number of

Ii:I

21 II

magistrates as provided by law.

) 1 1! !'

"Magistrates shall perform such duties as may be

assigned them by the Chief Judge of the Circuit and by law.:

24

The General Assembly may provide the Judicial Council

the authority to specify the duties of magistrates."

objection to this? [No response. J All right.

"The term of office of magistrates of the Superior

Courts shall be four years and until his successor is duly

selected and qualified, provided that magistrates holding

office on the effective of this Article shallremain in

office for the term to which they were"--we say "elected."

We probably should say "selected." I don' t know.

8 MR. SNOW:

()

Selected would be better for some of them.

10 JUDGE CALHOUN:

,-,

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We have the same provisions here that "All Judge of Small Claims Court, all Justices of the Peace, all Judges of Municipal Courts, all Magistrates of any Court in exis-

14 >-
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tence on the effective date of this Article shall become magistrates of the Superior Court in their respective circuits. Such magistrates shall exercise the same jurisdicti.on and shall be compensated in the same amount and by
!
the same source as now compensated. Provided, however, th~t

19 II

the General Assembly may by law change the jurisdiction

20

of such courts, and the amount and method of their compen-

21

sation.

22
II 23 II
,
24
I
2'; I,
II

"All persons who become magistrates of the Superior Court under the provisions of thie A~ti~le by reason of their holding office as a Judge or Magistrate of other courts prior to the effective date of this Article, shall

I'AGL 11::'

always be eligible to serve as magistrates of the Superio~

Court in their respective circuits regardless of education-

al or professional qualifications." And we'd take out

..j

always as we did before

~

"All Clerks and other office personnel of such courts

6

shall ~ecome Deputy Clerks of the Superior Courts of their

7

respective counties and shall be compensated in the same

!:

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amount and from the sarnp source as now compensated. Pro-

1;id0d, 1Jow<~ver, that the amount. and method of their cc-m-

10

pensation may be changed as providea hy ~&W.

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"The General Assembly by law may increase or decrease the number Qf magistrates of SuperiQ;::" ('ourts in t.he circuits or counties of this state and may prescribe the qoalifi~ations of such magistrates, not inconsistent with the provision of this Article."
It's really the Sdm8 as the other was with the Proba te; ,Tuven i Ie and so forth. Yes, sir?

Ik jIMR. OLSEN:

19 Ii

Judge Calhoun, i t ' s my understanding that i t ' s th~

ii

20 II
:1

sense 0:" this one to--fJr all the Judges othHl than the

21

"Ii Ii

St.ate Court, Probate, Juvenile Judges?

IIJUDGE :II'
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CAT,lInUN:

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Right.

24 IIMR. OT,SF,N:

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Could I suggest there ~re some courts that are going

I'ACE 113

drop out. If you want to include them, you probably

should say "All Judges or Magistrates of any Court not

named in Paragraph Ten of this Article."

CALHOUN:

Well, there are some, we found out, that probably

ought to corne under the Associate Judges. There are two

or three Judges that I know that are in Muscogee County and

they have a Magistrate's Court that has jurisdiction up

to $2,000, I believe in all case, and handles jury trials.

10 MR. OLSEN:

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DeKalb County has one something similar to that.
UGE CALHOUN:

I think this would be a matter of logistics and you

14 .>..

could name them in Article Ten. 'I'he suggestion is that

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we Bay "All Judges or Magistrates of any court not named

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above."

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17 ;:;MR. OLSEN:

IH II

"In Paragraph Ten of this Art~ole."

19 I JUDGE CALHOUN:

I .'0

Right.

21 IIMR. BEXLEY:

) II

Would the qualifications of these in the future be

23

required to be members of the Bar?

General Assembly and this is

a position where, I think, laypeople can serve, at least

2

for the time being.

I" :
!
3 DElI.N PATTERS,yN:

\

I

Mr. Chairman, in that connection, would it be well to

,: I

amend the last paragraph there to say that "The General

Assembly shall prescribe educational and professional

qualifications of magistrates." That would be really a

~
I"

mandate to the General Assembly.

I

I

Ii JUDGE SMITH:

10

Direct them to do it, not leave it up to them

.z"

II ~ JUDGE CALHOUN:

0.0..

12 u'"

All right. Just change the word "may" to "shall" in

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that next to the last sentence.

14 ~ DEAN PATTERSON:,

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15 ~
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Yes. And educational--I would take out "the" and

... It) zll>

I would say "e~ucational and professional qualifications

0

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of magistrates."

18 , .JUDGE CAI,HOUN:

19
20 II 21 II
22 Ii
II
23
~4 I'II
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II

All right. As the Dean suggested, it would be HThe General Assembly by law may increase or decrease the magis trates~--I guess it should be "the number of the magistrates of Superior Courts in the circuits or counties of this State and shall prescribe educational and professional qualifications of such magistrates, nut inconsistent with the provision of this Article." All right. And let'

I'.-\GE 115

At the top of the page we

2

say "All Judges and Magistrates of courts not named in

3 Ii

Article Ten" --"paragraph Ten. II Which would be nine now, I

think. This is at the top of page four. "All Judges and

Magistrates of courts not named in Paragraph Ten shall

become magistrates of the Superior Court." All right.

Yes, sir?

ROBERTS:

Judge Calhoun, is this the man's going to be elected

10

for four years?

<z3

II ~JUDGE CALHOUN:

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DO we provide it in here?

z

~MR. R. HARRIS:

'"

I believe we do.

14 .).-.

No .

'"

. J:
15 "~MR ROBERTS:

:':">

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I notice back over on page three of the Judicial De-



17 ~

partment that the magistrates will be elected for four

IH

years.

19

I
IJUDGE

CALHOUN:

20

We say it "shall be four years and until a successor

21 I

is duly selected and qualified "

22 IMR. ROBERTS:

I

They'll still be on an elected basis?

24 !JUDGE CALHOUN:

25
1_ _

Right. It says that his term shall be four years

~.
and until a successor is 4uly selected and qualified.

2

All right. Was there any objection to this paragraph as

3

changed? [No response.] All right. It stands approved.

Paragraph Eleven says--Abolition of certain Courts.

:)

"On the effective date of this Article all courts 0f this

state except the Supreme Court and the Court of Appeals

.., I

and the Superior Courts, shall cease to exist. That the

General assembly by law shall provide for the jurisdic-

'.}

tion to transfer and complete all pending cases and en-

10
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force all prior orders and judgments of such abolished courts and for the transfer of all recods of and property held by the Courts abolished hereby."
I guess the last sentence is sort of a housekeeping

14 >-
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one.

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X

15 .:. MR. R. HARRIS:

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Terry, do we havo any Probate Judges still function-

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17 ~

ing as Chief Executive of a county? Last time I heard

II'!

there were two.

19 MR. MCKENZIE:

I
I

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There may still be those two.

II

21 II JUDGE SMITH:

!I

22

I think it's down to one because I think the last

\I1I 23 II
II
24 il
1'1

county ~p in the Northeast corner changed not too long ago,: and put County Commissioners. I think there's only one

2S Il

left.

MR. R. HARRIS:

2I

Is there any need to put a--any sort of provision in

3 ,I

here that "Nothing in thi~ Article shall affect the power

4 IIIi

of a ~robate Judge functioning as the Chief E~ecutive of

I

a county," or as a fiscal officer.

6 ,I JUDGE CALUOUN:

7 II

Would this last section here do that--give t~e Gener-

1\ Ii

al Assembly power to do tnat? There's nothing wrong with

II

9 !I

adding that provision in here. Do you suggest we do that?

10
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o0....
12 ~
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We can do it right here .
R. HARRIS:
Let me ask Terry--if Terry determines or it's deterinea by ce"nse! that it s needed to be put in, say the

14 ~~

sentence ought to be put in. If it's deter~ined it's not

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15 .:.

necessary, leave it out

"a:

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16

lD
~ MR.

f.lCKENZIE:

17

0az:
"'

That may already be taken care of in the Article on

18

counties.

19 MR. SNOW:

20

Check that out for us, Terry. Check it out and if

21

we do need language, make that suggestion at the n0xt

22

meeting.

23 MR. HIGHT:

24

Wayne, couldn't you also--since your net effect is to

2sll'_' ...... 1ncrease t h e qualifications of thp Probate Judges--the net

I'A(;E 118

~~--:f~e:t II

that he would not only. fur the time being. be fi11-

2 il
ii

ing the same qualifications but if he had additional quali~

il

3 ii

fications as a Judge, couldn't you run into a conflict of

"

separation of th~ various branches of government for hG's

5

the Head Executive Officer and also sitting as a Judge in

matters of general juri~di~tion?

!JUDGE CALHOUN:

Poesibly. Of course you have that conflict right

now.

10 MR.
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HIGHT: But you
tion. R. HARRIS:

would

have

it more

with

of jl1risdic-

14 :.-
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You haven't incre~sen the jurisdiction by this.

15 ':>MR. HIGHT:

"'";;)

10 i oz

Not at this stage. But I'm saying down the road.

17 ~MR. SNOW:

IH
I 19 ,I

By that time they will ha~ made some changes or we'll send it to the Supreme Court and let them decide.

20 IIJUDGE CALHOUN'

I 21

All right.

Mr. Chairman, since we have tentatively

22 I

adopted plan one or one . report, I don't guess we don't

23
I

need to go into the ~wo-tiered proposition.

24 \MR. SNOW:

L____ 25

Hr. MundY'_ _

__

PAGE 119

MR. MUNDY:

2

I just want to ask one question about something that'~

3,

already adopted. But you provide for the bringing of all

4 IIII

the records and Deputy Clerks of these other courts, to

5

the Superior Court Clerk's Office. What I want to know is

I

6

where are you going to provide for the Superior Court

Clerk? Is it going to be in the Judicial Article or is

it going to be in the Counties Article?

MR. SNOW:

10

He's in the Judicial Article.

"z

I I :;;:MR. MUNDY:

.o.....

~ 12 ~

Well, I didn't see it.

~r~~MR. R. HARRIS:

Maybe I don't--

! 14 ...

Well, this is only dealing with the trial courts at

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15 .:.

this stage.

"'::">

J(, C~D MR. MUNDY:

a

Z


17 ~

Okay. Thank you.

liS MR. MCKENZIE:

19

I might point out something along that same line.

20

What you did here to start with was create one Superior

21

Court in each circuit, not in each county. So what's going:

22

to happen to the--where you've got eight counties in the

23

circuit and you've got eight clerks, who's going to be the

24

clerk of the new circuit?

25 JUDGE CALHOUN:

"At,E 120

Well, that's a problem we'll have to deal with whBn

we come to it. We may let them elect a Chief Clerk. But

at any rate, that is true. This would--rather than have

eight courts, you'd have one court--circuit.

MR. HIGHT:

Along the same lines--I think Terry and I are looking

7

at the same feature--there's no provision as you now have

in the Constitution--it may be left out on purpose--that

court wuuld be held in the counties or in each individual

10
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1\ tIlt: o l>.
12 :
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county--just that court will be held anywhere in the circuit. And both on the State Court level or any level, it's not specified any counties where you've still got your jury problem. So I think along the same lines as

14 >-
t;;

Terry. We've made the statement county-wide or circuit-

<l T
15 ..:.

wide court system without any provision that there will be

":':">

16 ~

an individual county.

w

o

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17 ~ JUDGE CAI,HOUN:

III

That's true.

\9 MR. SNOW:

20

But as long as we've got the provision there "as pro-

21

vided by law," we'll be much better off with that provision

11

than we will pinpointing something in the Constitution

that would require us to--or to say that we could never go

L__ _~~_~ ~h_~_~e~_p~~_~_~~~_s_e ~ !
25

to a regional jury, say, in some circuits where many of the

JUdges

__

circuits have expressed a

l'.-\GE 121

desire to have a situation like this.

2 MR. HIGHT:

Well, this could have been deliberate.
Ii

4 II JUDGE CALHOUN:
II

5 II

rt was.

II

II 6 JUDGE SMITH:

I!

7 Ii !!

Well, you'd better have it explained to th~ people

i

that they're going to have court over there as ~oposed to

:I

the county in which their courthouse is sitting or you

I

10
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II :; MR. o
. I"~ "
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won't get thirteen votes for this thing SNOW:
Well, I think the way it's drawn there, that's exactl~ the way it will be--to continue to have court in that county. But at times in the future when those folks get together through local legislation and decide that they've got an archaic-type system and they don't have enough people to maintain a cou~t in a county, then they need to

,

IH

be doing something. And this would give them the authorit~

I

19

to do it.

20 IMS. MORAN:

We don't have any--that I can find--any provision for

the election or selection of magistrates. Are they to be

selected on a nonpartisan hasis until otherwise provided?

x think that selection will be as they presently are
_____..J

fT-_- .- - - - - - - -... - . - - - - - -..-.--.....---- .

II

selected until otherwise changed by law--by general lc:.w.

Ii 2 MS. MORAN:

'I
!I

3

I'm concerned about subsequent elections on a parti-

san or nonpartisan basis. Do we need something in there?

We do have something in there for Judges.
5 II,
o "II JUDGE CALHOUN:

! don't see any~
!

7 'i

Well, there are some people who think the magistrates

i

K

ought to be appointed by the Judge. I think that would be

.t) IIi

up to the General Assembly really. We didn't--I person-

10

ally didn't Jock it into the Constitution becaus~ I think

11 I-
'o.<".1.-
]2 :
@r~

really that the constitution ought to be just broad, general principle~ and I think Judges should be elected but magistrates should not necessarily.

14 ~I MR. SNOW:

'! :J:
15 .:>
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Q
Z '!
17 ~

Let me point out one thing to the members of this Committee too You may have different folks that would tell you "Well, we like the Probate Court because thay're

18

in the Constitution," or "We're a JP and we're in the Con-

19

stitution," or things of that sort. We're not really

20

affecting the individuals that hold any of those offices

21

right now. But--and we're dealing only with the Constitu-

tion, not the statutory laws of the State. And it came to

our attpntion last year, quite dramatically in 1976 when

we were working on this, that the lobbyist here for the

r------------------------------- ---------- -

II

Consti tu tion did not provide for the Sheriff:; in the State I

2 'IIi

of Georgia in any way whatsoever. Well, the only reason

3 Ii_

that it didn't--because we didn't make any sUbstantive

i; II

4 il

changes--is because the Sheriffs are not mentioned any-

s dI'

where in the Constitution of the State of Georgia. So

Ii

b Ii

those that would say, "Well, you're abolishing a court or

Ii

7 II
"II,

a name or this or that or something else," it's--and they

S

I'
II

will he abolished in the Constitution--but there are pro-

I

I

visions here that will allow for further names to be done

10

by law, just as the sheriffs of the State were established

"'Z
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by law, just as your County Commissioners of the State of Georgia were established by law. They are not necessarily constitutional officers derived their power from what was

14 .>..-.

initially the Probate Courts which ran the county and it

'<"l

1:

15 .:>

was all established by law

"'"::J

III

I(l ~MS. MORAN:

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<l

'" 17 III

I do not see any sentence here, h~ever, that says

Iii

that the selection or election of magistrates shall be

I

\

19

I
determined by law. And I'm just wond/ering whether we need!

20

that in Paragraph Ten?

2J MR. SNOW:

I thought we provided that they shall be as pre-

23

sently--

24 jMR. HIGHT:

l25

~~~~~_~_:a s__no_~_~ov_~s ion at all.

PAW'. 124

II-~-

II MR. SNOW:

ii

~ II

W~ll, if there's no provision that says they can be--

3 IIii

if it duesn't say anything else, then they can be selected

by law. It's not prohibited.

MS. MORAN:

()

Okay.

!MR. DROLET:

S

One little inconsistency in here In Paragraph Three

'I

and Parag~aph Four. In Paragraph Three, we say the numLer ,

10
.11 "....z.. 0
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14 >-
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of Superior court Judges may be provided by law. Then in the next paragraph we have that language about the number of Superior Court Judges shall "continue, and the General Assembly upon certification of necesssity by the Supreme Court" may change the number and it would seem to, you know, conflict slightly
Is it the General Assembly or the General Assembly with certification by the Supreme Court? We retained bath

IH

languages.

I
19 I MR. R. HARRIS:

20 I
I

21 I I
II ""), Ii i':

23 I:
"

II ~-t

:1

25

II Ii

lI'L_

I guess I'm the one that's the cause of the require-
ment that the Supreme Court certify the necessity for addi
tional Judges of the Superior Court on the theory that if
we are indeed working towards a unified judicial system
I
that the Supreme Cour~ should have the right to--not create;I
Judges but basically keep the General Assembly from willyi _._--_._--~....-...

PAGE 125

[
, IiI,I'
I:

ni1ly creating Judges.
DROLET:
Right. We've got two provisions.

4 IIMR. R. HARRIS:

II

5

I think it ought to be cleaned up and the first sen-

I

I

6

tence--that sentence is four is being moved up to three

7

and I would think Marty cou1d--

I
H iMR. SNOW;

"As may be provided in this Article and by law."

10 MR. DROLET:

MR. II ."oot.-"e.
12 :
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14 ~ MR.
~ r
15 ~
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So which way is it?
SNOW:
"As may be provided in this Article."
DROLET:
We moved that sentence up so now we've got it there. The General Assembly basically sets the number of Judges And then it says the General Assembly, with the certifica-

Iii

tion of the Supreme Court sets the number of Superior

19

Court Judges.

W MR. R. HARRIS:

21

All you have to do is say "Each.juditial cirsuit shall!

22

have one Superior Court}" period. Then pick up the other

23 i

sentence "The number of Superior Court Judges in each

24

circuit existing shall continue, and the General Assembly!

25

L_____s_h__a_l_l__h_a_v_e__t_h_e__a__u_t_h_o_r_i_t_y__u_p_o_n

certification by

the

_Supr

eme
J

PAGE 126

fI

court, to change "

I

SNOW;
2 \1 MR.

~3 ")\

That's all we need.

ii

!i 4 MR. ROBERTS:

ii

5 Ii

Could I get the feeling of this Committee whether

Ii

h ii II

they recommend that the Judges be--well, Magistrates be

il

I!

7

::
Ii

elected or selected? How does this Committee feel about

II

11
II

that?

9 IIII MR. SNOW;

10

My feeling is the General Assembly ought to decide

"z

11 t-

that.

@;r'...oIl< l1. ROBERTS:
In other words, this first version, then, would be

14 .t~.-. ( %
15 ~MR.
CI
'~"
16 ~ <z>
17 ~

selection. SNOW:
I think it'would hav~ 'to be based bpon what th~ individual needs of the various circuits or the counti0s ~~y

18

be, just as it is right now. There are some counties that

19
20 I I
I 21 1 I
22\
23

have no--well, that have got very sophisticated Magistrate' Courts, such as the JP Court, I think, in DeKalb County and that's all been done by local constitutional amendment and by local legilation in those counties. I really don't think we can pinpoint it in the Constitution. If we

24

started doing that, we would be affectins ~ome of these

their system.

PAGE~ 127
2Il~'-:O-:E-;T:'see-~h.POint.

,

II
!I JDGE

CAr~HOUN:

4 il

All right, Mr. Chairman.

That's the end of our

S

sectiDn.

6 MR. SNOW:

7

All right. I guess folks are getting ready for us

to adjourn for lunch or adjourn for the day. We need to

9

decide what--when we--when do y'all think you'll have the

10

appellate court? Dow long will it take you, Ray?

"z

11 ~ DEAN PHILLIPS:

o...

~

12 ~

I would say approximately two weeks. We would have

@t~~

the working papers ready for thp. members to consider.

14 ~MR. SNOW:

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15 .:.
"IX
~
16 ~
o~
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All right, now. Two or three week--we've got to do one thing now. We've got to get notice out to--Marty, pass that letter our from the Georgia Municipal Associa-

18

tion, too, please. This was rec~ived to day and this is

19

for your information to read that over. I think at our

20

next meeting--and we might be able to do it on Friday. If

21

we could meet as a Committee on Friday morning and then--

22

and we talked about this earlier--having a Saturday meetin~

23

as a public hearing. We need to get notices to the

24

Georgia Municipal Association, to the Justice of the Peace

25

Association, the Probate Judges Association and other to

rr---
2 II

PACE 1?-9
have their response to what we have done and get this information out to them so that we will not run into the

3

situation where we've got folks to say they have never had

4

the opportunity to be heard or they didn't know what was

5

happending to them. So I definitely think we need to have

6

an announceo public hearing with notice to these various

7

groups groups throughout the State which are affected to

I:l
ii
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II 9 Ii
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12 :
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give them the opportunity to be heard on what we have done with each of these sections tentatively. And I'd like to know your pleasure on this--your suggestions if you think--the reason I suggested Saturday is because a lot of time people say, qWell, when you meet during the week, we don't have a chance to get away. We can't be there." We can more than likely handle the matter by having our. own meeting Friday morning and Friday afternoon having a public hearing. But I do not want to cut anybody short on being heard. I want them to be heard at

\~

length and as long as they want to--or as many different

19

groups. I'm not saying we're going to let anybody get up

20

there and filibuster. But-we're not going to do that--but

as many divergent groups as want to be heard, I think that

we should afford them that opportunity. So what is your

pleasure about meeting the latter part of Septembe~ or the

first of October?

PAC;E 129

Can you--can the Committee meet and finally adopt a

2

proposal in the morning and then have a public hearing on

3 :1

it that afternoon?

Ii

il4 MR. SNOW:

Things may be changed in the morning.

sI

Well, we're not actually going to be adopting--at

the next meeting, that morning meeting, we'll be hearing

11

7 III'

from the appellate courts.

II

8 !i

thing yet.

II II q MR. R. HARRIS:

We have not established any-

10
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II ~, t< ...0 Q.
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I'm suggesting, would it be subject to criticism hy not having the public hearing at a point following the tim~, a document has been completed by this Committee that the persons who might want to be heard could study. That's all I'm saying SNOW:
Well, we have the tentative adoption of this section which of course would affect these particular courts and

Jk

it would--I thought that we would go ahead and send them

19

copies of what we've tentatively agreed upon as it relates

20

to them.

21 MR. R. HARRIS:

2,').

You may have lawyers wanting to--depending on what

comes out of the appellate court committee, you may have

24

lawyers other than affected judges who would have a s~y-so

25

or would \"1 a 11 t to have a say as to, sheul d . they be changiri'g

l'AGE 130

n

i'
i" l

'lny ".f t;',e ~lpp.~llate jurisdictions.

2 IIIIMR. SNOW:

',i

Well, why don't we then plan maybe to meet 09 Friday,

the 30t.' of 'c:his month, just to !lave- the report of the

appellate--De,:ll?

I wi11 I.e out of town on the 30th. I don't know that

Ii

that's a re~son you shouldn't have it. I would prefer that

'/ Ii

you ']C> ahe;;,l ;}!id have thE' meeting.

10 MR. SNOW:

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II t"-', 0 0. ~
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S~nce '!,ll're on that subcommitt,~,." though,I'd ID-," very much [(>1 YlJU to be at that meeting. y'all are 'JuinS! to have to Il:e,t either n~xt WE',k or t.:he folJowing.

14 .>.-.

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ought to give Y0U three weeks on it. When is our Selec~ ~~11. w~ were talking about Octoher--the enJ of

Iii
II

(ctober, \'if')~~H' t we?

II 19

I'
MR.

HODGKINS:

20 :ill

OCtob81 1st i& the p:oposed date.

Ii
II
21 Ii JUDGE ~MITh;

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You nle"jl that's the Daddy Committpt-< of- if aU?

23 ii MF. ',NOW:
11

24

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w'" 1 1, 1 j '1 S t - - h a v (-,' t h.~ 0 t h p r two g r () ~1 P S, are t h.~ Y

pretty well en agreement?

"

..

}'C\C;E131

row.

is having a public hearing tOffi0r-

Are they going to wind their up tomorrow?

MR. HODGKINS:

Hopefully tomorrow or the end of the month.

MR. SNOW:

well, those other two don't hav~ the problems I'hat

to

we've got, though.

"z

... II

.... otit:

MR.

HODGKINS:

Q.

12 ~
(~\ ~ ~J-~ c..,wwo

Retirement and Scholarship Article is also running a littl~ late, Mr. Chairman.

14 .>... MR. SNOW:

'"

J:

15 .:>
":'>"

\'1hen de they anticipate having a report. ready J do you

J6 .~..

oz

17 ~ l'IR. HODGKINS:

I think prubably thay--

MR. SNOW:

will they be ready October 1st?

MR. HODGKINS:

No. P~ohably the end of October.

MR. SNOW:

24

The Governor hasn't decided thell. He hasn't set that

II~
ii MR.

HODGKINS:

i

2 II

There h1S been nu meeting yet.

!

MR. SNOW:

l'A(a: 132

4

Wall, then it shouldn't be set then until w~'ve got--

S MR. HODGKINS:

/)

That W-iS the suggested deadline.

7

/-IF. SNOW:

~

Well, is there another date, Dean, hesides Friday

q

that--are you yoing to be gone that whole week o--

10 DEAN PATTERSON:

.C)

!I

!
~

.'0Q"...

~ 0'._12 .~'.". MR.

(~,V &j-~ --

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~

SNOW:

I will be leaving on It seems like Friday

that Thursday, september 29th for most of the members of

14 ,.... ~ :r

15 .:>

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this Committee here is the most opportune time, is that
correct? That's what we de~ded in the beginning . Well,
you're going to be meeting with them anyway and they're
I
going to make their report so I don't--we'll miss yoa but-4

Ih II
19
\1
2U

I wish we could actually have it before that time. I'd like--this public hearing is something we're going to have to hav~.

21 MR. DROLET:

How about the 23rd? Ii 23 III MR. R. HARRIS:

.'4 Ii i I" I

The 23rd is two weeks.

I'.-\.GE 133

Will that give y'all enough time?

2 DEAN PHILLIPS:

3

You set the date. I'll take the message back to

4

Garcia.

~ MR. SNOW:

Okay. The 23rd then. Let's meet on the 23rd.

7 JUDGE CALHOUN:

8 II

September 23rd?

Ii

9 II MR. SNO\'T:

10

That's right. And then tentatively for Saturday,

Czl
11 t

October lst--if y'a11 could s~~ that date aside to b~ here I

o
0w

12 :

for a public hearing.

(~ ~r~ ~ ~MR. HODGKINS,

14 > ~ ~ x
15 ~
":'>"
16 I~D HR. oz
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17 ~

Mr. Chairman, I'm not sure that gives enough time to disperse the finaJ-SNOW:
Okay. Well, we'd better make that on the 8th then,

18

hadn't we and we'll discuss that further on the 23rd. But

19
20 21
22
23
24 I
i
25 III l

at least you can kind of be setting it aside at this time

for October 8th, public hearing in Room 341 and we'll

have to make arrangements fcr th~ Capitol to be open and

this room to be open up there. Do any of you have any

comments about this Satu~day .vusiness? Do you think that

it would m~ke any difference? Could we have it any other

day of the week? I really think that it would give--folks

~_

.- -

J

PAGE 134

who really wanted to be here and they wouldn't have any

2

excuse saying they had something else to do during the wee~.

All right. Then we will stand adjourned until Friday the

4

23rd. at 10:00 o'clock, if that's agreeable with every-

5

body.

(Whereupon, the meeting was adjourned at 12:45 o'clock,

7

p.m. ]

C E R T I FIe ATE

I hereby certify, as the court reporter, that the state-

10 ments that appear in the proceedings were taken stenographically

"z

11 ~by me, and thereafter reduced to typewriting by me, and there-

(~a/ , ~~a.oa... 12 ~after reduced to typewriting by me, and that this transcript is

c..,._

true and accurate record to the best of my ability.

14 .>..-
'x" IS .:.
"'~" 16 .~..
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17 ~

:o~
DARLENE F.

(7, /71 clJ~,.-
MCMURRY, CCR

~

t~ ,".',.)' Puc!:.;.:, CtJ,r'_ii~, State at La,g~ ."\',,'" t;,::"':; ;,,''.', 3, 1980

IH

19

20

21

23 IIII
24 II
'I
Ii
2S II
lL----- -----------------' -----------------.-----.--- ----

.

.

..J

'INDEX
Committee to Revise Article VI Full Committee Meeting Held on Sept. 9, 1977

FULL COMMITTEE MEETING, 9-9-77

Proceedings. pp. 2-3

Section I: Judicial Power

Paragraphs I:

Judicial Power of the State, and

II:

Unified judicial system. pp. 92-10~, 124

Paragraph VI:

Judicial circuits; courts in 'each county; court sessions. pp. 47-50, 110-116, 121-124

Paragraph VII:

Judicial circuits, courts, and judgeships; law changed. pp. 50-58, 116-127

Section III: Classes of Courts of Limited Jurisdiction

Paragraph I:

Jurisdiction of classes of courts of limited jurisdiction. pp. 86-92

Section IV: Superior Courts

Paragraph I:

Jurisdiction of superior courts. pp. 6-11, 45-47

Sections'y': Court of Appeals, and VI: Supreme Court Report on: deferred. pp. 3-5

Section VII: Selection, Term, Compensation, and Discipline of Judges.

Paragraph I:

Election; term of office. pp. 58-69, 107-110

Paragraphs III: Vacancies, and

IV: Period of service of 'appointees. pp. 69-81, 85-86

Paragraph V:

Compensation and allowances of judges. pp. 81-85

Section VIII: District Attorneys

Paragraph I:

District Attorneys; vacancies; qualifications; compensation; duties; i~unity. pp. 17-22

j'

Full Committee Meeting 9-9-77 Page 2

ARTICLE V: EXECUTIVE BRANCH

Section III: Other Elected Executive Officers

Paragraph IV:

Attorney General; duties. pp. 11-44

STATE OF GEORGIA
SELECT COMMITTEE ON CONSTITUTIONAL REVISION SUBCOMMITTEE ON THE JUDICIARY Hearing - R~om 133, State r.apitol
Atlanta, Georgia September 23, 1977 10:00 o'clock, aem. PRESIDING OFFICER: Wayne Snow, Jr.
BRANDENBURG & HASTY
SCIENTIFIC REPORTING 3715 COLONIAL TKAIL. DOUGLASVILLE, GEOKGlr\ 30135
942-0482 DEPOSITIONS- ARBITRATIONS - CONVI~NTJ()NS - CONFERENCES
---- -- '--------------_.~-------------------------------------------

PRO C E E DIN G S

2 MR. SNOW:

3

I would like now to go through with each one of

4

you and get any suggestions from you as to persons we

5

should directly notify of the public hearing at such date

that we're 9Cl)!ft9 to have it. Bob, would you have some

suggestions?

STUBBS:

')

I would think the County Commissioners and Municipal

\0

Association mainly because one of the consid~rations

that's been brought up has to do with financing. I would

think they would have some interest in that.

SNOW:

Of course the Superior Court Judges Association--we

can gat ~ome of them out of the way--and the Probate

"IX

::>

... j(,

III
Z

Judges Association, Superior Court Clerks, state--let's

0

7

4.
I, ''""

see, the State Court Clerks, do they have an association?

IH II MR STUBBS:

J9 Ii

The Judge and Solicitors. There's a County Attorneys

20 II

Association that might be interested.

il

2J IMR. R. HARRIS:

! ) )

The State Bar.

i
23 !MR. STUBBS:

:

24 I

They have a representative here.

25 iIMR. H. HARRIS:
I
L

P.-\GE 3

You can notify the Board of Governors of the State

Bar and that can be done through the State Bar Headquar-

terse

4 I"''IIi MR. SNOW:
I.
" Ii

Okay.

Dean--Dean Cole, do you-~

II

h

II DEAN COLE:
I.

ii

i'

7 !:

I can't think of any others.

j!
8 IIIi MR. SNOW:

:1

l) 1,[

Joe?

I(J MR. DROLET:

Actually if there could be a mailing to all members

of the STate Bar, I think that would include judges,

DA's and a vast number of--

SNOW:

One other thinq that we will do also--we will send

out to the Press Association for a release in all the

county weekly newspapers the week before this so that

IH I

any other person that might be interested other than the

i 19

associations. Marty, if you'll get with me on that and

II

?O !i

we could talk to Milo and also with the House and the

21 IIIi

Senate personnel on that and they can make that kind of

22 IIIi

a joint effort to make sure that's sent out to everybody.

I:

2.~ "
il

Are there any--I don't know that we need to go on

24

iI, !

around except unless any of you have any specific persons

II
25 Ii

that you think should be--should be notified.

L !i _..._.

,. '' ., , ,-- ..

..

._.__ .

!':\ (, L ..

DEAN PATTERSON:

The League of Women Vo1:ers.

3 MR. SNOW:

,1

Well, the League has a representative on the Commit-

S

tee. We will expect those of you who do represent differ-

I,

ent groups to let your groups know that we are having the

7

public hearing. Any other suggestions?

;~ JUDGE SMITH:

,

<J I
!!

In sending out notices, Mr. Chairman, seriously

\0

don't you think it might be well to give ~hem a time

"z

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limitation on how long they're going to be able to pre-

"

'"

sent to this Committee and let them know that when they

come in? Otherwise we might get--

SNOW:

\ S .:.

Well, I think that would be wise--no more than a

"a:

:J

II, .'7.":.

ten-minute presentation by any group. Of course if they

0z

. '" 1 .~ ' <Xl

should have--should request additional time, if they

It)

let us know how much it is, we can use our discretion on

II

II 1'o!

1
i'

that part of it. And then of course anyone that just

20 I!

shows up and wants to be heard, we will--by Committee

21

rules we can decide how much time that we will give any

22

other individual to make any comments they might want to

,I

23

make.

24

Marty, would you--are there any other suggestions of

~~

anyone we should notify? Marty, if you will, give us some

.,..--------- -- - -- --------- ---------- - ------- -------
report on the work that you've been doing as far as the

work that we've already done and the local constitution-

al amendments.

,1 i MR. HOOKINS :

5

Cindy Nonediz and I--from the Legislative Counsel's

Office--have been trying to draw all these together and

we have identified, I guess, about twenty-five or thirty.

And we need to see what further is done in the way of

Committee aotion before we can actually finish drawing

!()

them up and makinq sure that we have all of them. So we

"z
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really don't have anything formal to report at this time. There are several that--

"-

zI-
~MR.

SNOW:

~

>-

What is the idea here--to have a provision in this

I-

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Article that would continue these constitutional amendments

".'::".:>.
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or--

CJ

Z

~

Ii ~MR. HODGKINS:

I think that's one way you could do it--is just to

continue them all. Another way is that for those that

can be repealed by virtue of the language being broader

21

and qranting more authority, perhaps--

') MR. SNOW:

23

That would be the preferable way, to be able to in-

24

elude them as the--either the Magistrates or as Associate

Judges of the Superior Court. That is what you have refer-

lL___________

___ _ _

_ __ __ --- - --------------- --- - - - - - - - -----

ence to there, on the special courts that have been created? Now, the posture we will be in when this Articl~

is concluded, that we will no longer have this type con-

,~ ii

stitutional amendment in the future. That I s one of the

efforts I think we're trying to accomplish here--to avoid

that kind of situation. Anything further, Marty?

-: ~ MR. HODGKINS:

No, sir.

<) iIMR. SNOW:

IU

Terry, would you give us a report as to some work

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that you're doing on the trial courts sections or do you

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have--

MCKENZIE:

14 >-

What we plan to do is give each member of our staff

!;.

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a copy of what welve done: have each member review it for

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If, az>
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technical problems that may be there. And we hope to give,

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you a report on that as 800n as possible.

18 IIMR SNOW:

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Would you give us some idea as to--some detail or as

20 II I,II

to areas that you're particularly concerned with so that

I~R. 21 ,I

we caft be thinking in those areas too.

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MCKENZIE:

I.

23 Ii
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Well, to an extent, the effect on retirement systems

24

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because you could have several retirement systems.

2)

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SNOW:

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That's the retirement systems that are for the

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Superior Court Clerks, the--

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J I,' MR. MCKENZIE:

II

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--Probate Judges. There are several that might be

'i II.i

affected by what you do, things of that nature.

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6 I MR. SNOW:

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Can we not more or less continue those by just put-

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ting that in that section where we say that these courts

II

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will oontinue until changed by law and just add retire-

10

ment systems in that too?

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Possibly so. But we want to make sure we understand the effects of that. Another example would be the selec-

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tion of jurors. Now, you have a jury box in the county; you're going to a circuit-wide court without a superior court in the county. So what are the effects of that-jury seleotion, for instance. There are any number of

IK

issues that we've spotted already that we want to take a

19

look at.

20 MR. SNOW:

21

All right. Are there any specific questions that

n

any of the members of the Committee might have of either

23

Marty of or Terry at this time? [No response.] All right,.

24
LI
25

Next on our agenda then, Dean Beaird and the subcommittee
deal=~:_:::~~e~ppell~~~_~~ur~.~~:iSdiction. If you

PAGE 8

would give us your comments, sir, and a report as to

2

your activities.

DEAN BEAIRD:

Mr. Chairman, as you know, the subcommittee consists i

of the Deans of the three accredited law schools in the

State--Dean Patterson of Emory, Dean Cole of Mercer and

myself. We have met formerly on one occasion since our

prQcess began. We discussed the issues involved and and

q

the subject over the telephone a number of times. We've

10
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also asked the staff to prepare some drafts for us to provide us with information. They've been very cooperative. I think it appropriate in prentinq <this for the Committee's discussion to go back and give a little

14 >-

history aftd more or less lay a foundation to let you

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know the kinds Qf things that our oommittee considered in:

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reaching its conclusions.

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I think we all know that the first sixty-five years

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in this State's history there essentially was no process

19 I

by which the decision of a COqrt of general jurisdiction

20 !\

could be appealed. We had no appellate courts in Georgia

II

21 II

for about sixty-five or seventy years. The Supreme Court

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was established in 1845, the Court of Appeals in 1907.

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As of now, the appellate jurisdiction of the two appellat~

24 III'

courts is spelled out in the Constitution. The jurisdic- I

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tion of the Supreme Court includes suoh oases a$ those

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PA(iE 9
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volving divorce and alimony, et cetera. The jurisdict.ion i

II

4 III,,IIi 5 IIIIIi

of the Court of Appeals includes other cases appealed from the courts of general jurisdiction.
Now, essentially in Georgia at this moment, we

6 II

have--Bob Stubbs has characterized in this paper that he

7i il

prepared back in 1973 as a parallel appellate system.

ii I1"i,

We have two appellate courts. DecisiOns of oertain types

9 II !i

may be appealed to specified appellate courts depending

10

on the Constitution. Back in 1971--and we have later

statistics but to give the Committee an idea of the case

load--in 1911 the Court of Appeals issued 697 opinions

and the Supreme Court, 417. I might add that both of

those are substantially higher than the Supreme Court of

15 .:>

the United States. Now, in reviewing the appellate jutis~

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diction in the Constitution, the Committee had to address

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certain basic questions. One was, should there be a

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right of appeal from decisions of the courts of general

19

jurisdiction. And if so, should it be a matter of right

20

in certain oourts or should it be a matter of discretion.

Also we had to look and see what we considered to be the

21

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22

purpose of the appellate funotion. Does the appellate

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function simply serve the purpose of correcting errors or i

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grows and develops under our common law system.

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Now, in Bob' 8 'paper t which proved . very helpful to

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this Committee, it's noted that perception of appellate

4I

functions usually determines the appellate structures.

5

In other words, once you determine what you want the

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appellate function to do--what purpose it's to serve,

! IIilI,

then the structure more or less flows automatically from

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that. And in his paper he noted that, as I've indicated

II

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earlier, that there are several functions that appellate i

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courts provide, several functions that they serve. Not only do they simply correct the errors of the lower courts, but provide a broader-based judqment for critical
issues. But under the commort law system as we all know,
I
the law does grow and the law changes And the jUdiciary! I
is the mechanism which gives vitality to the common law system in those areas that the legislature basn't address~ ed.

18

Now, essentially there are three basic appellate

I 19

structures. One is a unitary structure in which you have

20 I

a single appellate court and all appeals from oourt. of

21 II

general jurisdiction will be taken to that specifio court.1 ,

There are certain advantages and there are also certain

22 II

23

disadvantages to this system. One advantage is that it

"l _ ~_WOUld _~n~:~~~ o~-=he_cOu~~_. might_~u~~ ta~e_~~ 24 I'II

avoids bypass appeals. There are also disadvantages that

the size_

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moment, if I may, Mr. Chairman, to read a comment or two from Professor Stubb's paper about this. It says: "The obvious advantage of such a single appellate court is to avoid bypass appeals or the second appeal which a writ of certiorari, if granted, provides in fact. It would expedite the final appellate decision in the case and ~~Y thus earlier put an end to the litigation. Disadvantages would be the size of the court inevitably neoessary to handle the workload of a jurisdiction recognizing appeal as a matter of right, cumbersomeness of a large court inenbank proceedings and the downplaying of the educational role of the appellate court. 1t
Now, the second kind of appellate system is the twostage system. This basioally is where you have--the comm~n form is where you have appeals as a matter of right to a first-tier appellate court. Then you have review to the highest court in the State, that review being limited i to a certain nmnber of--limited basically to large issues taken to the highest court by way of writ of certiorari with very limited original appellate jurisdiction in that court. Certainly--the advantages of course is that it-such a system clearly serves the law development, the educational function, et ce~era of the appellate function.! Certain disadvantages of course is it creates a disparate workload between the appellate courts. But there are

r'--- ------------- ---------

PAGE 12

II

advantages and disadvantaqes to any of the systems we

2 Ii

can think of.

II

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The third system of course is the parallel, system

4 I:ii

which is essentially what we have in Georgia t.oday.

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That is, we have two appellate courts. One has jurisdic-

(, :IiiIi

tion over certain types of oases J another has jurisdic-

I:

tion over other types. 'l'he Supremem Court of course may

by writ bring cases from the Court of Appeals to the

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Supreme Court. But essentially it is a parallel system.

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Now, our committee--and we realize, Mr. Chairman, that we have a difficult, delicate "task here and maybe that's the reason the three Deans were selected to do this job--we reached certain recommendations which we think

14 .>..-

accord with the recommendations of those groups which

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have studied this issue in recent years and which we

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think is necessary--what we perceive to be the appropri-

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ate appellate function in Georgia. We think that we

18

should have the two-stage system and incorporate that

19

into the Constitution--the two-stage method of appellate

20

review.

21 I

Now, at this point we think that there should be

22 1\

appeal as a matter of ri9ht to the first appellate level

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in the State. We particularly think and aqree with the

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studies of former Federal Judge Sidney Smith, who reviewe~

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PAGE 13

in the Constitution, Robin Harris, a member of this

Committee, who has submitted a recommendation and the
Governor's Commission in 1911. we think that--we agree

with those recommendations that we should have a two-

stage, two-tier appellate system in our State and thereby

the Constitution should be changed to reflect that.

We also think- that the original--that the direct

jurisdiction, appellate jurisdiction, of the Supreme

Court should be severely limited. As a matter of fact,
i
our own personal view is that it should be discretionary-J

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the eammittee. -Now, ift".makinq.the statement bebelievet~at

I

there is unanimity among, all the people that have looked i

at this question with respect to certain things. One

thing is that there's no reason in the world why the

Court of Appeals shouldn't have equity jurisdiction--

appellate jurisdiction. By the same token there's no

reason in the world why ~a8es involving land titles or

alimony should be appealed directly to the Supreme Court.

And that seems to be the general view of all the groups

that have looked at the question.

Our subcommittee thinks that appellate review of the: I
Supreme Court should be, in large measure, discretionary.

There's some question as to whether or not in the case

of death ~nalties there should be direct review from the i
I
.:uperior Courts--courts of general jurisdiction. But in i
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any even~ our first recommendation is that we adopt the

two-tier system in the Constitution: jurisdiction of the

Supreme Court be primarily discretionary as established
I
by rule. It's method of operation shouldn't be constrain~d
any more than necessary in terms of the Con.titution it- i

self. The actual operation and function as between the

two courts to be as a matter of rule. Concerning the--we:

think that, as a pragmatic matter--and I must say in

making this report that we rely heavily upon the work of

the Governor's Commission in 1971, the Judicial Council

C~ittee chaired by jUdge Sidney Smith, the recommenda-

tions of Robin Harris, who has been through this I under-

stand several times betore--we think that, if necessary,

that the original appellate jurisdiction of the Supreme

Court should go no further. If our recommendation of

almost exclusively discretionary review is not supported

by this Committee--in its political judqment is not one

that will fly when it reachea th6 leqlslature and the

people, we think that these cases should be--those that I

could be taken on direct appeal to the Supreme Court ShOUl~

I

be limited to these--and I'll just read them:

cases in-

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volving the sentence of death, cases in which any law,

regulation or ordinance or its application has been de-

c1ared to be invalid as being repugnant to the Constitu-

tion of the United States or of this State or repugnant

PAGE 15

to treaties or laws of the United states, civil cases in

2

which the State of Georgia or one of its agencies or

3

officers is the appellant, all election contest cases,

4

cases involving extraordinary remedies. Basically that's

5

it.

6

Now, I'll ask my colleagues on the committee to make

whatever comments that they may h.ve. But I hope that I

have reported accurately what 1 perceived to the consen-

sus of the subcommittee. The essential element is to

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chanqe the Constitution to provide for a two-stage appellate procedure rather than a parallel system and limit, to the extent possible, the Supreme Court's function--appellate funotion--to large cases, significant
I
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cases, cases in whioh the decision will serve the purpose, of developing the law That would of necessity reduce the caseload; may of necessity require an increase in the Court of Appeals--Judges of the Court of Appeals--and so

1ti,

forth. But that essentially is the report of the commit-

19

tee, Mr. Chairman.

20

Ray, would you like to comment, or John?

21 DEAN PATTERSON:

22

NO, I think that the chairman of the committee has

23

accurately covered the subject and I don't have any fur-

24 IIIII,

ther comments.

25 ~~~AN co:~_:

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I agree. Let me ask you folks if y'all were in aqreemen~?

4

There seemed to be some question as to the Supreme Court

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having specific areas, though, where it would be written i

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in such as the case of a death sentence. You indicated

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that possibly there--that there was some disagreement

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among the committee members as to whether any particular

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itemization should be placed in there as far as jurisdic-

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tion is conoerned. Is that--

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Well, basically it's the view of the committee that jurisdiction of the Suprema. Court be purely discretionary

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However, in talking with people, reading reports, listen-

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ing carefully to comments that there may be a necessity

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to provide for direct appeal in death cases. But we

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think that basically there should be one appeal as a

matter of right. The Court of Appeals--
18 11

II 19 MR. SNOW:

20 II

Did you take into consideration the reduction of the

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caseload that would result to the Supreme Court because

n II II

of this or if they went solely on the basis of certiorari?

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:3 IDEAN BEAIRD:

24 I

It would reduce it probably by half.

2~ ~MR._ ~~O~

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Did you consider the possibility if that recommendation were adopted of reducing the number of Superior Court Judges or Justices--I mean Supreme Court--and in-
the number of Court of Appeals Judges?

didn't discuss it. I noted in one recommendation

that there was a recommendation that the Supreme Court be

reduced to five judges. Our committee did not deal with

that.

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would address itself to whatever decision probably would

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be made.

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As I say, we think that revisions of the Constitution

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will almost inevitably flow--I mean, we could write for

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an hour upon all the material that we have. Onee the

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basic decision are made--

19 MR. SNOW:

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And you want, then, the members of the Committee to

21 II

address questions to you relative to it or to make state-

I

menta in general, then, relative to your recommendations

here and get some idea as to what language editorially

I

~EANBEAIRD: II 24 I
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should be placed into the--

... __

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PAGI'~ 18

I think weld like to have the benefit of discussion

2

regarding the first essential recommendation that the

3

Constitution reflect a two-stage appellate process.

I
"+ i MR. SNOW:

5

All right. I think basically then we should go

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around the room and start with Robin and get his comments

on it and any question he might have on the problem. It

seems like they have already reviewed some of your pre-

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vious recommendations.

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Well, I'm in basic agreement with what the committee

reports. I would be one of those that would have some

doubt as to whether the right of appeal in the death cases!

I

should be eliminated as original jurisdiction for the

i

supreme Court. I really think that's where those cases

need to go, not necessarily that the Court of Appeals--

that the Supreme Court would make a wiser or better deci-

\11 I'

sion than the Court of Appeals. aut from a psychological

I:1:

19 I,iI

standpoint of having the highest court review cases where

20 Ii

capital punishment is imposed.

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21 iIMR. SNOW:

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Any other areas you think should be included?

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23 I~R. R. HARRIS:

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No.

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I'm--of course I'm already on record on more than

4 II

one occasion--of course with Robin's committee, with

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3udge Smith's oommittee and, unfortunately, memorialized

in print in the report for the Governor's Commission

6 \1

some years ago. One point I am concerned about, though,
7 II

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is the rather rote acoeptance of the right of appeal in

ii

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all cases coming to the Court of Appeals assuming we

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adopt a two-tier system.

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That bothers me. STUBBS:

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One of the concerns whioh I found some years ago and Bob Doss did a statistioal study whioh is probably more

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somplete than mine was cases suoh was Workmen's Compensa-

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tion which have already been reviewed at least once or

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twice and sometimes more. We have a prooe4ding in--the

II

lawyers know--in Probate matters--the way yOu proceed de

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novo; go from the Court of Ordinary into--or Probate

"I

Court into Superior Court. In a number of other proceed-

22 II

ings that have their genesis in administrative type

23 II

actions where you've got one, two, sometimes three admin-

::4 II

istrative stages--for example, election contests where the

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Circuit, talking about statistics that the Fifth Circuit

had made among the Judges that they came up with about

3

twenty-seven or thirty percent of all cases which the

Judges reviewed, they deemed utterly frivolous without

any merit. There was no basis of appeal but appeal of

right was there and somebody appealed them. I haven't

heard any statistics from our Supreme Court or Court of

Appeals but I imagine informally that the Jus~ices and the

Judges have an idea about how a certain number of cases

10

they see that are just totally frivolous and with no

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merit whatsoever. So I don't know exactly what kind of procedure ought to be installed but I think there neeqs to be some way that certain types of cases--once they've been reviewed by--like a Workmen's Comp cases, you can appeal to the Superior Court level. But beyond that it ought to be an appeal with leave of the Court of Appeals. There are just too many appeals now because they're too

IH 'I

easy to have.

1911MR. SNOW:

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I doubt if the Chief Justice wants to even comment

II

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21 Ii

on this.

" IIJUSTICE NICHOLS.

.23 IIII

Well, first of all, let me say this. I'm on record

and have been advocating for years that we ought to--that

2')
ii.

the Supreme Court ought to be a cert court. And I'm still!

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I

of that opinion and I want to oommend this committee for

2

their recommendation. I would say this, I would agree

3

with Robin that certainly from a poltioal standpoint at

4

the present time, I'd like to see it be a disoretionary

-"

oourt--oert court. But oertainly with the death cases,

II

oonstitutional questions, eleotion codes, revenue oases--

7

we're going to qet them anyhow. with those and maybe

1\

extraordinary remedies--with those speoial types of

9

oases, I think the Supreme Court--if it had those oases

10

and with the other cases as a matter of discretion--I--

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as I say, personally, I would like to see, as the commit-

te has reoommended, that it be a discretionary court. But

certainly with the death penalty cases and your election

oontests, as I've enumerated, and tax cases, revenue

oases, which are ultimately going to wind up with us

anyhow, it would be judicially economical, I think, to

have them come direot to the Supreme Court. But with

Jb

those few exceptions, I do think that the Supreme Court

II

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would be a cert court really compared to what we have now.

I 20

We're the most glorified divorce eourt in America at the

21

present time. But I would think--and in order to do that

22 II

of course you've got to have more bodies. Now, who's got

23 I;

to have more bodies? Your appellate court's got to have

24 11

more bodies. You've 'lot to hsve more judqes when you do

t2) ._.~~a_~_~.ecaus~~~l_.=~~__~~~.=~s_.~~.a~_~ave a cert court have

intermediate appellate courts. Some of them have as many

2

as sixty-four judges. But that's the way you're going to

have to operate if you're going to have a cert oourt.

4

And I have always advocated that even when I was on the

5

Court of Appeals. And when I was a Superior Court Judge.

n

It's not anything new and I think that the most efficient

court, in my opinion in America, is the California

Supreme Court, certainly one of the finest. And that's

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the sort of court that they have. And I think that--

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they're not the only one--but I think that the cert courts and your Supreme Court--your court of last resort-~ ought to be certainly some type of a cert court--discretionary.

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14 ~I MR. SNOW:

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Judqe Marion Pope is representing JUdge Calhoun

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today who had to be absent. Marion, would you have some

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17 ''""

comments that you would like to make?

18 JUDGE POPE:

19

Well, very briefly, Mr. Chairman, the Judicial Coun-

20 I
II

cil in reviewing Judge Smith's proposals will meet tomor-

21

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row morning at 9:00 o'clock. Being chairman of the sub-

)) II
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oommittee, we're going over all of it. We expect to vote

:'1.

23 !i

on it tomorrow. Judge Webb and Justice Jordan are on the

I! 24 :1

subcommittee to present proposals on the Supreme Court an~

I

2."

the Court of Appeals. I have them here and they I re not diis-

by the Dean. I probably

should withhold any judgment on my part until such time

as we take it up before the Judicial Council. It's not

too different.. I won't take the time trying to go into

it. But we expect to give to you and your Select Commit-

tee our findings for whatever they may be worth as

suggestions to the Committee on the Judicial Article.
,
IBut I say that if you y this long enough--often enough,i

finally it will be adopted. I think it's good and I

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think it's what ought to be done. There's some problems rather apparent like the appeal as a matter or right, the number of judges on the appellate court, things of that nature--the workload is a real problem, I can see. But I think the Supreme Court ought to be confined probably to discretionary matters except probably death cases. And I think they should hear death cases, constitutional questions, election contests and--of course Judge Webb

IS

and Justice Jordan's committee said all cases involving

application of a treaty to which the United STates is a

20

party. I don't know if we have any of those. I feel

21

pretty qood about the recommendations but I probably

22

should reserve any further comment until such time--

23 MR. SNOW:

I 24

Marion, would you--as y' all have some recommendations;,

'I

25 I

would you make them available to Marty where he can get

L_________ _

-- -~- -- ._------------_.------ .-.

all the members of this Committee a copy of the recommen-,

dations?

JUDGE POPE:

4,

Absolutely. Absolutely. Immediately after we take

S

them up tomorrow.

',) MR. SNOW:

And we'd also further appreciate very much of

course y'all--the Judicial Council's appearance at the

'I

pUblic hearing when we have it for any oomments they

10

would like to make on the overall situation

..,

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! I ~ JUDGE POPE:

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We expect to have that to you in plenty of time for you to go over it.

,

I

14 .>..- MR. SNOW:

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15 .)

Very good. Ray, do you have any further comments?

CI
:':">

I () ~ DEAN PHILLIPS:

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My comments have been shared by Dean Beaird since

IH

I was really sittinq in for him and we discussed it and

19

I think the position has been clearly stated.

20 MR. SNOW:

21 Ii:I

All right. Howard?

22 IIIi MR. OVERBY:

II '" I'Ii
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Mr. Chairman, I find--

Ii :,1 MR. SNOW:
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How do you think the Senate will feel?

_ _ __ [~;.~._~~;:- .. ..

_._

_ . ~ ~..

.

PAGE 29
---- ~1

2 II

I find myself subetantially in agreement with the

3 II!

report of the subcommittee and I particularly emhrace

the remarks of the Chief Justice. I think for certain

the death penalty and the other cases should be in the

Supreme Court. I'm also conoerned and agree with the

thought that's been expressed about--that one review,

particularly in domestic relations cases and Workmen's

Compensation cases, that there should be one review.

10

Certainly we want everybody to have their day in court.

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But I think one review, particUlarly in the domestic relations cases, should terminate it and I feel the same way as far as the Workmen's Compensation cases.

14 >- MR. SNOW: to ~ :r
15 ~
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Okay.

Lucy?

16 '~" MS. WILLIAMS:

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~

17 ~

I couldn't agree more with Mr. Stubbs. I think

I 18

this appeal, appeal, appeal--there ought to be a cut-off

19
I,

place. I agree completely with what his views are and

20 I'

ail the other experts.

21 I MR. SNOW:
I,

II 22 'I

All right. Are you saying that you do think, though

23 il

that the death penalty--

I

24 MS. WILLIAMS:

25

The death penalty by all means, but--were you being

1',\(; i< 30

facetious by saying divorce cases go to the Supreme

.2

Court

.3 ,JUSTICE NICHOLS:

I was being facetious, yes, because--
'> II,' MR. OVERBY: !, Correct.

i l-1S. WILLIAMS:

x

That really is ridiculous, I think.

9 MR. SNOl'l :

10

Okay. Charlotte?

MORAN:

As one who's long been confused by the present para-

llel structure, I'm delighted to hear the report of the

subcommittee. I think the two-stage system is much more

understandable. And I certainly would favor the death-

sentence cases and cases involving the constitutional

questions being reserved for the Supreme Court. I am

18 II

also going to anxiously await the arguments of those who

19 II

wish to retain the present system. I'm curious to know

Ii:1
20

what they are going to be.

'I I[MR. SNOW:

22 IIii

Well, you may hear them right soon.

23 I\JUDGE SMITH:

'\ .)4 \I

She's not going to have to wait long, l-1r. Chairman.

I

-,~-,li ~_~~_~~~____ -.--- -------------------------------------- ----.---.-

I do strongly support the recommendations of the

subcommi ttee.

SNOW:

You feel like elections and death penalty and con-

stitutional questions and things of that sort--

MORAN:

Elections, I don't know, but certainly cases involv-

ing oonstitutional questions and the death penalty, yes.

SNOW:

10

All right, George.

SMITH:

Mr. Chairman, Lucy, you're not going to cut out

appeals just because you make the Supreme Court a cert

court. That won't stop appeals from going on up because

they can go to certiorari to the Court of Appeals

straight on up to the Supreme Court. So you're not going

to stop any steps insofar as stopping appeals is concerned!.

Iii

Of course the Court of Appeals agrees basically with what

I')

the grounds for jurisdiction are at the present time.

20

Justice Jordan and Judge Webb have agreed basically on

!

II

21 II

what we have at the present time. Now, the reason 1,--1

22

I!
!I

have--I fail to see how the judicial system of the State

II

Ii'I 23 II

will be improved by making the Supreme Court just a cert

24 Ii

Court. I don't understand that because everybody that

II

25

L_ brings a case to the Court of Appeals "

- _ _ - - - - - - - _ . _ - - _ --~_. ----._--- - --_.~ --- _...----------_.----

..

-_.-'- .. -~_._--

..

still has

the

right

to go to the Supreme Court on a writ of certiorari. So

2

what has been improved by putting the case through the

Court of Appeals when they still go to Supreme Court on

cert when they can go straightbo the Supreme Court and

5

yo can get it over to start with.

/) JUSTICE NICHOLS:

Because it's discretionary.

II JUDGE SM ITH :

That's right, Mr. Chief Justice. It's discretionary

\0

is right. But--

"z II ~ MR. SNOW:
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Let me request, Mr. Chief Justice, that you wait

until he finishes his comments and then you will have

your response.

\5 .:> JUDGE SMITH:

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16 ~

It'g nothing to be gained from that standpoint ba-

az

~

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cause I don't know the percentage of the cases that we

IX

get now but--or it seems like more motions for rehearing

II

come through than original cases whenever we start hand-

:: I

I
inq them down and this wi1l--certainly will continue. Be-t

II

!

IiII
21

cua$e I can't conceive of anybody that has a constitution-i

22 II
23 II 24
25 IIII J __

a1 question to come up before the Court of Appeals that
they're not going to file a writ of certiorari. Well, the, i I
Supreme Court is going to have to con$ider and do research!
on that case just like they had originally to decide

, 11----:::t:::.::c::ta:-::e::::t~ot:0::r:: :e::OWth~~::e:o::

.3 Ii

cite but they still have the cases before them and

4 Ii

they're going to have to do some research right on. So

5

what would be gained by that I don't understand. Consti-

tutional questions--they're going to appeal them. The

death penalty, they're going to appeal. Anytime that an

ordinance is involved, they're going to appeal them. Any'

time a legislative act is interpreted, they're going to

10
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appeal them. Capital felonies are going to be appealed. Election contests are going to be appealed. Habea corpu8ithe only thing I can see that possibly wuld not be appealed. I'm not saying they should be taken out but that's the only thing I could see that possibly would not be appealed on certiorari are habeas corpus. Divorce and alimony cases--there won't a single one that will ever come through that won't go up on appeal. Now, the case-

18

load at the present time, 'for the. first time in the

19

history of this STate, an appellate court judge would hav~

20

over two hundred cases assigned to him to~ite opinions

on this year. we've already hit two undred and on in the i

Court of Appeals this year. I don't know what the

23

Supreme court's going to hit this year. Theirs is going

24

to be increased, I know, comparably to ours. So--I mean i

l25

i

perc~ntage-wise.

I
They have roughly, well probably sixty :

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percent of the case load that we have. And by cutting down and making them an appellate court only--I mean by right only with a very limited jurisdiction for direct

appeal, you've just thrown a tremendous loads on the

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Court of Appeals which means you're going to have to in-

I

II
crease your Court of Appeals by several judges. You're

7

going to have to increase--that means legislative is

going to--legislative budget is going to have to be in-

,) I'
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creased to pay these sorry judges everybody cusses out

10

now. And you're not going to solve one problem just by

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making the court--Supreme Court--a cert court.

IoX

Q.

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@;~MR' I like the situation like it is now basically. SNOW:

I --frankly:,

14 >-

Do you see any reason why matters such as divorce

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and land line disputes, though, should stay as exclusive

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jurisdiction in the Supreme Court?

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~JUDGE

SMITH:

Well, from the standpoint that the Supreme Court can

handle them. If you put them down to the Court of APpealsl

it would just overload the court so they can't handle thed. !
The Supreme Court's handling its load now as good as we

are. And another thing, I agree with whoever it was now

that was talking one hundred percent. On all Workmen's

Comp cases, they ought to stop at the Superior Court than

--------------------------- -

PAGE 35

three judges. You've had the single administative judge.

You've had the Board's hearing and then the Superior Court!

judge' has heard it. And I think it ought to come from

4

there as a matter of discretion to the appellate court

6 I,

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rather than direct. I frankly think all administrative law:
!
cases ought to come up as a matter of discretion. BeCAuse:
the Board has heard it; the Superior Court judge has
I
heard it; you've had two court hearings there. So I think;
they should come up. I also think insofar as application
for writ of certiorari, I think they ought to be able to
go stright to the--once we've rendered an opinion in the
Court of Appeals, I think the application for a writ of !
certiorari should go straight to the Supreme Court withoutl
having to file with us amotion for rehearing before they
oan go on appeal up there. That never stops them. They
just do that automatically to get up there. I made a
little research. Out of whatever nine times 177 is--
that's right at 1700 cases--out of 1700 cases last year

19

there wasn't a single motion for rehearing granted by the

20

Court of Appeals. There was twenty-three cases--whenever

21

we get one back and they complain about it and we feel llk~

22

they have A point, what we do, we would vacate the jUdgmen~

23

and rewrite it. And that was done twenty-seven times out

24

of 1700 cases last year. So why should you go through

L __ 25

~~~t e_~~~~~_~h~t_~~~t _~~~e_~ __~h~ __~ourt of Appeals thA= _

muoh more work to do and doesn't take a thing off the

2

Supreme Court.

3

SNOW:

1

Mr. Chief Justice, did you have any comments?

~ JUSTICE NICHOLS:

()

Oh, well, I was going to take my turn but since you

called on me, I would say this--

.MR. SNOW:

I <)

I would pre1ier to have a response now.

10 JUSTICE NICHOLS:

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Ail right. What I was going to say about the differ-:
ence that it would make. I think that a court of last re-!
I
sort ought to have time to handle impact cases--cases of

14 .>~.-.

great statewide impact on the entire citi.enry of th~

~ x

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State. I think they ought to have time to study those

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16 .~..

cases. We are now not able to give the in-depth study to

o

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17 ::;

ca.ses of importance that we ought to give. We're making

Ii'!

jUdgment; we're not writing opinions. We are making judg-

19

menta in cases for lack of time. Now, to answer my good

20

friend Judge Smith's question about, wouldn't help by

21

transferring the cases. Well, it would do this. I have--

22 Ii
II
23 II
24 I
2~ I L_

I advocated last year and with no success that we have a Criminal Court Division on the Court of Appeals. Now, the reason I did that--and it's obvious to me; there's just noi argument against it. The way the Court of Appeals is set

5 6 7
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at the present time, you have three divisions. If one of any of those three panels--if a judge on any panel dis~ agrees, then it goes to the full complement of nine judges. That envelopes the whole court to review that one case. My suggestion was in order to have a stability i in the criminal law--and that's more important, I think, than anything is stability 80 that the lawyers will know what the law is representing these criminal cases. You've got three divisions: they're divided up. One division will come out exactly with a completely diverse opinion, opposite opinion on the came case. You've got three divisions. Then there has to be a cert to come up to the' court for the Supreme Court to review that and get it straightened out. My proposition wa.--and I made this at the Bar Association, not last summer, but June last year--and which I proposed a three-judge Criminal Division on the Court of Appeals. I know they are overworked.i There's no question about that. They are overworked just,
I like we are. But what would this do? This would do this.l
I
I propose that two--a majority of a division of Criminal Court--of that division--could put a case out without the: necessity of bringing in all of the nine judges. They could put out the case and that would be the ned of it. And it would reduce--then you'd have some stability in your criminal law. You wouldn't have another division

deciding exactly opposite on the same state of facts and

2

law. You'd have that stability and you wouldn't be

.3

tying up all nine jUdges. Now, whether or not--I know

'' II

i

-1

that Ultimately the Supreme Court--I mean the Court of

5

Appeals is going to have to have some more judges.

f>

There's no doubt about that. And one--I notice one of

7

the recommendations of the subcommittee by JUdge Webb and:

8

I don't want to denigrate Judge Webb any way--but I think!

I

9

that's absolutely ridiculous that the Supreme Court--I

10

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mean the Court of Appeals be put in this Constitution that it can't have more than nine judges. Now, he wants to restrict it to nine judqes. Well, I thought the whole, purpose of revisinq the jUdicial artiole was to eliminate and obviate the necessity of having to coming back here every two or three years and having to do the same thing over. Well, what are you going to do with the caseloads growin9 from time to time everyday if you don't have--

18

leave a leeway where you can increase judges. That to me

19

is the most ridiculous thing I've read about that whole

20 \

thing.

21 !IJUDGE SMITH:

n II

It all depends, Mr. Chairman, on which side of the

23 I

fence you're on, how ridiculous it is.

24 ,I JUSTICE NICHOLS:

I25

I was saying this when I was on the Court of Appeals,:

PACE 39
I r---~Ud9~-~Ve sta~:~--~~- position all the way through. Now,

2

on your Comp cases, I agree with you about that. I think

3 il

those Comp cAses when they--they've had a review. It goe~

4 i!

to the Director: then it goes to the full Board and then

I!

I

they've got a right to appeal to the Superior Court Judge.:

: II

I think that ought to be the end of it. In order to

II

7 II

appeal to the Court of Appeals, it ought to be discretionl

II

8 il

ary.

9 II MR. SNOW:

to

All right. Bob, first: Dean Patterson, then Dean

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Beaird.

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@ r I12 : MR. STUBBS: I'm not getting in that one but it seemed to me as I

14 ;...

heard the comments about the room that there was some

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variations of opinion as to that which should be spelled

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out in the Constitution, assuming the preference for a

a

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17 ~

two-tier system, that which should be spelled out as

IH

within the original appellate jurisdiction of the Supreme

19

Court. I noticed in one of the recent cases--and I know

20

Judge Nichols will correct me if I'm in error on it--that

21

the court construed that it had the authority, by rule, toiI

22

bring up cases from the Court of Appeals. And it indicate~

23

which oases--which categories of cases it might do. For

24

purposes of language in the Constitution, it might well be

25

that that could be--that assertion of authority by the

court could be provided for by specifying those to which

there was agreement as, for example, cases in which the

death penalty was imposed and then in such other cases as

the court may by rule provide for review. I just throw

S

i
I,

that out as a compromise.

6 , JUDGE SMITH:

I

~'1ho makes those rules, Bob?

11 MR. STUBBS:

9

The Supreme Court.

10 JUDGE SMITH:

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Of course we have nothing to do with it.

'o"

Q.

~
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In the Collins case the Court of Appeals didn't have

14 .~...

anything to do with it

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15 .:> JUDGE SMITH:

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16 ~

I'm not talking about the case; I'm talking about

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the rules.

iii II MR. SNOW:

1') I,

Okay. Let's hear what Dean Patterson has to say.

I
20 I DEAN PATTERSON: 'I

II,.

21

There's one observation I'd like to make. Comments

22

were made--I kept hearing the phrase "appeal as a matter

of right. 1I And I think that maybe we should give some

.'4

thought to the implication of saying that every li.tigant

who has a case tried in Superior Court, as a matter of

... __ .. _- ~---_._-~~-------_._------_._-------~------_._-_

I':\GE 41

I II

right can go up to the--an appellate court. And the

ji

2

point of my remarks is that perhaps we ought to discuss

3

the matter of some discretionary authority on the part of

the court of Appeals in terms of what appeals--cases it

will not hear. What are the implications of this? If yo~

say in the Constitution that every citizen who litigates

as a matter of right can appeal, you place ,a tremendous

burden on the lawyers because every lawyer is geing to

feel that he has no choice but to go ahead and make an

10
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appeal and in many instances you're going to have frivolous appeals. So I just call that to the attention of the! Committee. I also think that to say that every litigant i has an appeal as a matter of right, you are by implicatio~ saying that you don't have much confidence in our Superior Courts. And I think the presumption should be the the Superior Courts are excellent courts of general jurisdiction and every citizen does have a fair trial. And

18

it's only when someone can present evidenoe of some kind

19

of significant error that there should be an appeal as a

20

matter of right.

21 MR. SNOW:

22

What you're suggesting then that possibly by rule

I 23
24 II

the Court of Appeals could also determine which cases it will hear directly.and whioh cases will come on certiorarf.

25 t~AN__ ~~TTERSON:

I'At; I' 42

Yes. Yes, I think so.

2 MR. SNOW:

3I

All right. Dean?

4 OEANBEAIRD:

')

I have several comments that grow out of comments

6

that have been made around the table. Also I have some

7

additional information that I should have presented at

8

the outset and didn't. It has to do with the case10ad

9

of the Supreme Court and I'm looking for the oaseload

10
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12 ~
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of the Court of Appeals because I think this Committee ought to have it--this information for last year. Last year the Supreme Court did appellate work on a total of 1471 cases. They issued 749 opinions last year. The figures that I gave a moment ago were 1971 figures. I
think it's interesting to note that we didn't have a
single treaty construction case in the Supreme Court last year. We did have fourteen death cases. There were 222

18

capital felony cases. There were 55 divorce cases, nine

19

change of alimony cases, fourteen original alimony cases,

II
20 II

twenty-two changed child custody cases, thirteen original

21 II

child custody cases--a1l in the Supreme Court.

I ) '

i

.1

There were--in the Court of Appea1s--1646 cases

I 23

i,'

II
24 II

docketed in 1976 and 1197 in 1977 for the first seven and a half months. And it might be helpful to--

[I

25 II JUDGE SMITH:

L

. .__ .- . _-" -

PA.GE43
I ~----;~-C~-~Udge was assigned 177 cases last year for opinion

2

and we've already reached two hundred and some this year

3

that have already been assigned to us.

il4 DEAN BEAIRD:

'I

SI

There's no question but that the caseload is terrific

6 i!Il

in both courts.

II

7 IIJUDGE SMITH:

!,

Ii
8 I!

And that's opinions only, Dean.

I

That has nothing to

') 1'1

do with motion for rehearing, interlocutory appeals.

10 DEAN BEAIRD:

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11 i=

It's a heavy caseload in both courts.

.'o."....

~< ~UDGE .~ ~ 12 -

doubt about that. SMITH:

There's no

14 .>..

I think I've had thirty-four or thirty-six interlocu-'

~

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tory appeals assigned me this year already.

":'">

16 Y:>EAN BEAIRD:

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J 7 :;;

I think some comments with regard to appeal as a

Ih I

matter of right. I think we all know that for many, many

I

19 I
I,II

years--Bob could correct me if I'm wrong on this--as a

20 I

matter of due process, it has never been held by the

21

United States Supreme Court that the Fourteenth Amendment I

requires as a matter of due process appeal from original

23

decisions. Although to read the cases carefully, it wou1d i

24 ,I

not be a total surprise if the court at some point in time;

~ 25 ~_i~ in_~~rta_i_n_ci_r_cumstan_~e_s__op~_o~~_ap_~~~~ ~~__~__ ma:t~~__~: :

~--------
1 II
2 II
II II
3 il

I'AC;E 44
constitutional right. So we had this in mind first. Secondly, there are ways that appellate courts can
reduce caseloads by getting rid of frivolous cases. Now,

of course just going through the operation of using the

techniques that I'm going to mention will take some time.

But I know the--in the Federal system, the Oourts of

Appeals-~the circuit had adopted a summary calen~ar to

8

include oral arguments in certain kinds of cases; dismiss i

9

appeals without opinions and simply affirm through the

10

process of cost assessment they've been able to reduce

the caseload somewhat. Party that brings a frivolous

appea~-assignment of the costs and so forth--this has an

effect. These are techniques that have been used not

only in the Federal system but in the administrative pro-

ceedings as weil. One point that's been mentioned with

respect to the right of appeal from Superior Court deci-

sions to the Court of Appeals--in many of these areas

18

the Superior Court Judges do not publish their opinions.

I

19 I

They do not have a reporter system for opinions of the

i

20

Superior Court unlike in the Federal system. The Distric~

I'

21
II

Court Judges' opinions are published in the Federal Supple-

22

ment. In many of these areas I think it's important--

\

23 i

although the administrative tribunal may publish their

24

opinions and you may have a reporter system there--it's

25

something we should consider that the first place in our

Courts of Appeals level. And that may be a reason why

we should accept as a matter of right appeal from the

Superior Court. Of course also, without denigrating at

all the quality of the Superior Court Judges of the STate

--they're very high quality--in several instances the

people probably feel that they should have the judgement

of three judges rather than one, in issues of the type

that we've taken up. Of course you can argue back and

10
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forth about that. One of the real arguments, I think, in favor of discretionary jurisdiction of the Supreme Court but at the same time having many of the cases brought to the Court of Appeals, is that on large issues that I'm sure the Chief Justice would acknowledge that it helps the Supreme Court in having the judgment of the Court of Appeals on large matters. You get a crystallization of the issues; you qet a judgment brought to bear on the issue that's important. Of course this kind of stance

19

would require the enlargement of the Court of Appeals.

20 II

Personally and I'm sure that the Committee would think

il
21

that that's a small price to pay for a kind of system of

I
22 i

justice that we want to aspire to in this State. But

I 23 I
24 II

those are just some comments, Jr. Chairman, that I jotted down as you went around the room.

2~

III IIMR.

SNOW:

II

I'ACE 46

Dean Cole?

COLE:

I wanted to respond, Mr. Chairman, to JUdge Smith

directly because I agree with ~verything that he said. I

don't think we're saying anything different. There was an:

(1

expression of concern around the table about the number

of appeals and the endless variety of appeals. It's a

question that we're all concerned with, I think. But I

think the two-tier system as the Committee's suggesting,

10

has nothing to do--! think Judge Smith's absolutely right

-~ith cutting down the number of appeals. That is a

separate issue. If we want to cut down who can appeal,

we can do it. But the question we're addressing here is

the--what I consider historical accident in Georgia which

15 ."

makes the Supreme Court of the State and, as I say, un-

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like any other state I know, but there may be some other

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ex
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states--the Supreme Court of this State is the court for

IH

correction of errors. That's simple error, not writing ani

19

opinion on a big issue of law or an important issue of

20

II

21

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11
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II
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23 II II
24 :1
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law. It's simply correcting errors "in case8""~and now I'm citing the Constitution--"respecting titles to land, divorce ~nd alimony, habeas corpus and all equi~y cases; in all cases involving the validity of or the construction of wills." These are cases which are not, by their nature of pressing importance in every case. And so it seems to

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me that what we have in Georgia is a situation where the Supreme Court should be called another appellate court, appellate court one and appellate court two. My view is that a Supreme Court should sit with discretionary jurisdiction to hear cases that they think are important, that they have the time to write an informed opinion on and to leave the business of correcting simple error to an appellate court. And I think what we're talking about, then, is a very confusing system in Georgi~ and I would agree with the woman to the right of Judge Smith--I don't know her name--who said "I have yet to heaJt an argument why we should have two appellate court system~ with different names in Georgia." And it seems to me if we want to retain that system that we ought to consider changing the name of the Supreme Court to another kind of appellate court. Because right now with the Supreme Court spending so much time on simple correction of errors in these fairly standardized kinds of cases, we do not: have' ,a Supreme Court who is hovering over the entire court system, writing informed opinions in major kinds of cases. So I guess I address the question to Judge Smith, other than agreeing with you that there will I be no reduction in the number of appeals in the system, what is the argument that we ought to have the Supre~e
~~~r=~~~ t_h_e_S_t_a_t_~__d_ea_~i_n:_.~_~~~.~_~~~~e--correctingerrors

I' AC I'; 48

I 11

in these rather ordinary areas of alimony and divorce and

I,I'

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so on.

II 3 !' JUDGE SMITH:

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4 !I

I never have seen a man appeal a case who thought

ii

5 I!II

his errors he outlined was ordinary, to start with.

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(,

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!, DEAN

COLE:

Ordinary in the sense of ordinary litigation. The

litigants of course think everything is extraordinary.
i
9 I! JUDGE SMITH:

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Yeah, but every client I ever represented thought his case was much more than just an ordinary case. And
he didn't denominate it as ordinary. And we're dealing with semantics when you're talking about what ordinary errors are and what errors of any consequence are. That was the idea--the ori9inal idea in putting the--putting in' the Constitution what the Supreme Court should handle. Because it was considered that these areas were of supreme:
!
importance to the people of the State. And that's why

19

they were assigned that authority. When they were origin-I

20

ally put there, the idea of conserving the home--domestic i

i

21

relations questions went to the Supreme Court because thatl

Y) "--

was the very heart of the land, they thought here--our

i,I'

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forefathers did--conserving the home. And it was impor-

24

tant that the Supreme Court be the court in which errors

i

~5

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II

were corrected becauseyou're preserving the very foundatioh ___ - li

I r--~-the -founding stones of the nation. That was one of the

2 II

reasons for it. But I don't see any reason that idea

II
3

should change although the times have changed and the

II

4 II

ways have changed. The Constitution--we kind of laughed

5 III, I

at treaties but that was kind of important at one time

II

and you never know when something like that's going to

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come up. There's another rea80n why you don't know when

Ii,

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it's coming up. And the Supreme Court as it is now--you

III'

9 II

say hovers. They're hovering over everything in the

10

State because anything that comes up they have a right to

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accept it or reject it if they want to.

12 "~" DEAN COLE:

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You're saying that this list is a list of more impor-i

.14 ~ t-

tant areas?

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15 .:>JUDGE SMITH:

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That's right. They're a list of more important

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things to the State and to the citizens of the State.

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That's why they were on the list to start with. Our

III IIiI!I

founding fathers thought they were very important. So

20 ,I

important that the Supreme Court shoUld pass upon them.

r21 II

That's why they bypassed us to start with.

22 R SNOW:

23 II

I think at the time, though, we have to concede that

24 II

they were--land-line cases were far more important then

2S II,

than what they are now.

~-"---------"---------"--------"---------- "-"- """

n-- -.----------------- -
1 Ii JUDGE SMITH:

2 II

Obviously you've never tried a land-line case re-

II

3 II

cently.

.-1 1 MR. SNOW:

Well, I have--I don't even consider them. That was I

one of the first thinqs I ever got involved in. I decided

7

then I never would do another one.

8 i JUDGE SMITH:

That doesn't keep them from being important, though.

10 MR. SNOW:

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I want to calIon Jim Miller, too, who represents Judge Sidney Smith for his comments and ask him if he has anything to say.

14 >MR. MILLER:

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Well, I'd like to ask you whether you think that the

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proposal of the Committee is politically feasible?

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17 ~MR. OVERBY:

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19 IMR. SNOW:

I didn't qet the question.

20

If the proposal of the Committee is politioally

I

21 i

feasible. I think we'll have to go around and get some

I

I

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vote on the Committee and I propose to do that shortly to

1.1 II

see what they would like to--whether they want the two-

.'4 !I

tier system. I'm fixing to do that 8S soon as we hear

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- . - - - - - . - - - -. ----..~.-.----.-- ..---------.---.----.-------..

PACES1
l

I just couldn't give you a direct an~wer to that. I

2

think that we're going to h.ve--of course the!e recommend-'

ations are still going back to the S~lect Committee and

then they're going to the JudiQiary Committees of the

5

House and the Senate. And I'm sure that there will be a

b

lot of further comment. We're going to have public hear-

7I

ings to get additional re.ction before it ever goes to the

i

8 Ii

Select Committee. Well, ~he people in the legislature are!

<) iI

largely responsive to wha~ these different groups--and

10

especially these different ~sBociatiQns. The impact that

they're going to have as ~o how we'r~ impacting them--we

are political animals in ~e legislature. We're going to

do more or less what the folks baok in our areas, if

they're interested in it, say to do. The problem with the

SUbject matter is that YOUr attorneys and your special

interest groups themse1ve, are the ones that we're going

to be hearing from. The problem that I see as a 1egis1a-

tor is the people who are r_al1y affected--and that is the

19

folks that I'm supposed to represent--are not really

20

directly interested in what we're doing right here. And

21

it's awfully hard to get th~m interested in it until

22

they're directly involved in court somewhere. And that's

just an honest opinion aPQut it. \~at we have to do is

24

to try to have the politi~al courage to do what we think

~s

is best for those folks w~thout regard to what is best for

-------~---~~-----------------~ ------~--~--------

any special interest groups in this State. And that in-

2

eludes any group that is here represented on this Commit- i

tee. I venture to say that many times we do not act

with that degree of regard to the folks back home. But

that--I really prefer your comments right now. I didn't

intend to make any

.., i MR. MILLER:

I think the crucial issue is whether the Committee

~i

is willing to recommend that the Court of Appeals be en-

IU

larged beyond its present size. That's certainly a

possible route to take and I take it that Chief Justice

Nichols is in favor of that. I think that it's inevitabl~
:
that enlarging the Court of Appeals beyond its present
,
size would have a deleterious effect on its quality. It'~

15 .:.

difficult enough now to find nine gentlemen of high

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16 z

quality as lawyers who are willing to serve on the State

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17 ''""

Court of Appeals. Obviously none of those gentlemen

18

serve there for money. It doesn't pay very much. They

19

can all make more money as lawyers. And we're lucky to

20 ,

have a Court of Appeals with the excellent lawyers on it

,I
Ii

21 I'

that we have now. If we have to enlarge that court to

22 II

fifteen, eighteen, sixty-four lawyers, I doubt that we're

I

23 I

going to have lawyers of the quality that we presently

24 I

have. So I see the crucial question as being the caseloa~

I

I

2<;

of the Court of Appeals in this whole issue. If you

I

PAGE S3

adopt the proposals that this subcommittee is recommend-

2

ing, I think that you'll have a sy~tem that is much more

rational and .Y8tem~tic than the system you have now.

4

Those are obvious virtues. It will have the disadvantage,'

I

5I

thou9h, that will r~uire a Court of Appeals of far

I

greater size t~an tpe size we have now. And I think that

'7

mean_ you'll ~ave a Court of Appeals of lower quality. r iI

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thin~ that th. proposals of this subcommittee might be feasible or d.~irable if they were coupled with some proppsals that would lessen the caseload of the Court of Appeals. And significantly lessen it, not eliminating Wor~en'8 Comp$nsation appeals Which are an administrative appeal. They're just simply not a significant part of tpe Court of Appeals' caseload. If the Court of Appeals has the aut~ority to change the nature of an appeal in this State; to simplify it; put it into a form that would take less of the Court of Appeals' time, I

18

thin~ although that might not lessen the actual number

19

of cases that went to the Court of Appeals, it might

20

significantly lessen the amount of time that the Court

21

of Appeals haa to spend on each cas~. And so I think

22

that if any proposals similar to th.t made by the subcom-

23

mittee is adopted, it has to be coupled with some other

L ~s_~e l'r~Sal stand~~ow'-' 24

proposals dealing with the nature of the appeals that go

25

-t-o tile Court of APpealso_ But__

__

PAGE 54

it would I think dome close to destroying the Court of

Appeals as an institution of quality--the quality that it

presently has.

4 MR. SNOW:

Thank you, Jim. Any questions anyone would like to

ask him?

JUSTICE NICHOLS:

XI

Let me just respond to that by saying that I agree

I

i

with him about the quality of judges you're going to get

10
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if they don't raise the pay. That applies to any court-- ' Superior Court, Supreme Court of Court of Appeals. That's what I've been hollering about for the last nine months. tf you don't raise the compensation you're going to get--you get what you pay for, in other words. That's i --that's--but if you pay enough, you're going to be able to get enou9h judges if it's sixty-four or 664. It's a question of compensation.

18 MR. SNOW:

J9

I think we're going to address that problem in Jan-

10 ,

uary.

I

.?I !JUSTICE NICHOLS:

" II

What we 0re talking about now is the caseload and it 0,

23 Ii

not going to decrease 7 it's going to increase.

24 DEAN BEAIRD:

I:
25 ~-

Let me just say, Mr. Chairman, that as far as the

p.-\ca: 55

subcommittee is concerned, we addressed this problem and '

reflected on it from the point of view that we wanted to

ascertain, looking at the systems in other States: look-

ing at the Federal system: read~ng the literature in this

area, what would be the best judicial that this State

could have. And that was the view we took to try to

determine our recommendations. We realize that there may

have to be a number of recommendations, many of which

would have to~riginate within the legislature. But from

10

the point of view of a high quality judicial system, we

..,

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contemplated people being willing to take the steps

necessary to guarantee the quality of the Court of

Appeals, the quality of the Supreme Court.

SNOW:

I generally believe we're going to have to do this--

and that is that I would think if this is adopted that we

would have to reduce or should reduce the Justices of the

III

Supreme Court by at least two members. Not firing anybody:

II'

19 I

--1 don't think we would do that. But through attrition

20 IiI

after the next two vacancies or so, then they would not be:

!I

21 II

reappointed or could not--the first two vacancies, poss-

" !I

ibly. And leave it open as to the mmebership or the

Ii

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23 i

number of Court of A~peals Judges that we would have.

II

24 IlJUSTICE NICHOLS:

I[
2S I~I ____

_ I_=~Sj~S~_~~:_~~_~_~ ~~y~~i~=~~~a~_=~~ Court of

r-- ---------------- -

II

Appeals was increased, I think, from six to--this was back;

Ii

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in 1950--to seven. And then sometime after that, during

I

I

Vandiver's administration, it was increased to nine

4

judges. Now, that's been twenty, twenty-five years ago.

5

Lawyers have increased in this State from that time from

tl

about 3000 to 10,000. The population of Georgia back at

that time was about three million. We have five million

8

people in Georgia now. Now, that's--that has a bearing

9

on what we're talking about.

10 JUDGE SMITH:

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12 :
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Mr. Chairman, you made a statement a moment ago about:I the legislature would have to pass upon this finally and you'd have to use your discretion as to what was best for

14 >-

your constituents because they really didn't know about

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it--wasn't concerned about it. I'd like to just throw

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out this question without asking anybody to answer it--

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just think about it. How would the citizen that you're

III 11

talking about--who knows nothing about the court system

II

II

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19 I'

and is not going to learn; I don't care how simple you

20 il

make it--how would he be any better off today if we had

I

II
:~ II

the two-tier system than what we've got today? I'm not asking anybody to answer it. I'm just throwing out the

Ii 23 I,

question and ask you to think about it. How would you be

24 \I1I

any better nft if we had the two-tier system?

II

25 ~~R. __S~~:_: _

PAGE 57

r-~

1I

I'm not sure that that is the--well, the question

I

II
2

that we're addressing is the entire Article, not neces-

i

3

sarily this section of it of course, and is to try to

4

simplify the Constitution of the State, to bring it up

S

to date, to avoid in the future having as many constitu-

h

tional amendments as we do to various Articles of the

7

Constitution as now required and which we are submitting

R IIIi

to the people of this State questions to be voted upon

Ii

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that they do not understand frequently that should be left)

10 ..,

with their elected representative to vote on in the--

z

I 1 ~JUDGE SMITH:

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A two-tier court is not going to simplify the Constitution.

14 >...MR. SNOW: J:

15 .~.,

Well, I'm not addressing--I said I wasn't addressing

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just that one particular portion of this Article. I

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think that we've got serious problems in the courts, the

IH

tJail courts as well as the, apprently in the appellate , -'v'

lY

courts, because there is some disagreement between the two

20

bodies as we apparently see.

21 DGE SMITH:

22

That's why we're up there. If there wasn't disagree-

23

ment, we wouldn't be there.

24 SNOW:
25 li _~. ~

All right~.

Bo~ __b-?-------------~---

PACI'; 5B

MR. STUBBS: With respect to the comments made about right of

3

appeal, I think that we should listen very carefully to

4

Jim Miller's comments about so describing the manner in

which cases go to the Court of Appeals--that we can leave

a manageable court, at the same time perhaps responding

7

to what may well be determined to be a constitutional

right for an appellate review. There's no magic in

') II

principle whether we call it an appeal, a writ of error

:1

10

or writ of certiorari or writ of eucharemus or whatever.

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And if we leave it in some measure to the scriveners here i
to set up a means by which cases go to the appellate stage without calling it an appeal as a matter of right

14 >-

or something that would kind of lock us into some sort

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of mandatory response at the appellate level, I think we

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may respond to one of the discerned problems

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17 ~MR. SNOW:

I~ "

All right. Dean?

19 DEAN COLE:

I agree with Bob' comments but I'm confused about th~

raising the specter of an enlarged appellate court and

the diminution of quality and tying that to the adoption

of a two-tier system. It seems to me, again, the twotier system doesn't have anything to do, in my view, with i

They will be

PACE 59

constant under both systems. The question is, where do

those appeals qo? At the present time we have nine

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judges and seven Supreme Court--sixteen who handle the load--and I think--I agree with the Chief Justice that the time is coming when that~s not goinq to be adequate. It seems to me we're reaily asking the question, to which court are we going to add those justices? Under the current system we're going to have to add them to both courts because the Supreme Court handles a great volume of what I call ordinary cases and Judge Smith took exoep- ' ticn to that. But it's not, it seems to me, a case in which we're going to have to enlarge the Court of Appeals by great numbers just making the switch to the two-tier system. I think the separate question, which should be kept distinct, is how many appeals do we want, which is what Bob Stubbs was commenting on, and other people, do we want a way to cut off some of these appeals as a matter of right. I don't see that as integrally connected with

1'1

a two-tier system where the Supreme Court is allowed the

2U

freedom to have the time to look deeply into various caseSi.

i

I

21 MR. SNOW:

22

We need to be in a situation where we can eliminate

23

a lot of these frivolous cases being reported--or written

1

24 II

opinions, not reported but written opinions. Joe?

25 I~I ~~._~~~~~_T~

~_

One of the problems I have conceptually with the

situation we have now is that it doesn't to have any rela-'

3

tion to logic. We really have two separate courts deal-

ing with correction of error, calling one the Supreme

s

Court and one the Court of Appeals. We're just saying

some cases go here and some cases go there and we shift

, Ii

it from time to time. Primarily that seems to be what we

have. If that's what we really want, then I wauld think

we would want a unified, one-level, unitary system as

10
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described and call it Division A and Division B. And say capital cases go here and divorces go here. That's really where we are right now except we have seven in one place and three panels of three in the other. That doesn't seem; to me as a concept to be logical. That's where 1--if we're going to start from a clean slate, let's either go with a unitary system and make it a logical one or have a two-tier system with one review level and then one cert

18

level.

191 MR. SNOW:

.'0 I,

It would appear to me like, on this subject of the

divorce--you know originally when it was put in the Consti~

tution for the Supreme Court to handle those, it was a

23

very important thing. It's still important to the parties

24

that are involved. But prior to that time all divorces

in the state had been granted by the legislature and

there were not that many divorces in Georgia. It was

definitely against public policy of the State. And it's

far more common now and it would seem to me that it would

be a subject matter that should address itself that that

should be a matter of certiorari to one of the appellate

courts and not just as a matter of right to be able to

take a divorce case to the court. If there's an impor-

tant issue in that particular case and the court wanted to

grant certiorari, then it should have that privilege of

10

doing so. But I think that we ought to be inundated with I

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11 ~

this particular subject matter.

.oQ...

12 ~MS. MORAN:

~< ~ ....

Mr. Chairman, I would like to second your statement

14 ~

because I'm particularly interested in the question of

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15 .~

family matters as they come before the courts and it seems

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to me that it tends to somehow lower the status of the

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Supreme Court if in fact they're listed in the Constitu-

Ix II,I

tion as being the court which hears divorce cases. 1--1

19 II

just don't think that's an appropriate place for divorce

I:

20 I"i
II

cases, child support, child custody cases to appear. I'm

il!I
21 I,

concerned too about the matter of appeals. And I would

il

II

22
II

hope that we can draft our recommendations so that it will

23 II

be clear to the average reader of the Constitution, who

Ii

24 l\

is probably not a lawyer, that certain appeals in certain

~1

II .') I,I'

cases are spelled out so that a person would be able to

"

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ii

pick up the Constitution and know that such and such a

Ii

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2 II

case there is a right to appeal to the Court of Appeals

!

Ii

3

or a right of certiorari..

.+ MR. SNOW:

Fine. Dean Patterson has got to leave. I would

'1

like--I think we've pretty well, from the discussion as

we went around the table, got the idea of how folks felt

on the matter of the two-tiered court--appellate court

9 '! III'

system. I would like before he leaves, though, to take

10

a vote on that for the record. And that is, those of you

\z'
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who do favor a two-tiered court system, I'd appreciate

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12 :
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your raising your right hands. [A show of hands.l Ten. All right. Those opposed?

14 ~JUDGE SMITH:

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[Raising his hand.l

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17 ~

All right. Now, those in favor of retaining direct

IH

appeals on the death penalty cases in the Supreme Court,

19

raise your right hand.

20 IMR. STUBBS:

II
21 I!
I 22 MR. SNOW:

You're talking about where death is imposed?

23\

Where death is imposed. (A show of hands.] Twelve.

,.II

Those opposed? [No response.) All right. Those who

t2) II

would retain revenue and tax matters--well, first, those

_ - - - - - _ .__ ... ~---------------_

..

1 Ii

who would retain any matter dealing with constitutional

, Ii

questions, both the Federal Constitution and State Consti1

3

tution, retaining that in the Supreme Court, raise your

!:

i: 4 "Ii

right hands.

II

:, !IMR. R. HARRIS:

[A show of hands.)

Those opposed?

I!

h Ii
II

Mr. Chairman, I'm not opposed to the--to them going

to the Supreme Court directly. I am opposed to spelling
7i

H II

out any more things in the Constitution. I would support

II

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II

the idea that the--the language or the Constitution pro-

to

vide that in those cases other than where the death pen- i

"z
alty was imposed, that the Supreme Court by rule desig-

nated would go directly to them on appeal. I would suppo~t

that and let the Court make that decision. If we're

going--if we're going to have a separate and unified

IS .:>

court system, we've got to give to that system certain

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discretionarY pewers. And I wouldn't leave it to the

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17 '"<Xl

General Assembly in this instance but to the court. Now,

Iii

that's the reason--when you go beyond death penalty, I

19

will vote negatively on putting in the Constitution any-

I

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I

- Ii

thing that says these cases shall go to the Supreme Court.,

21 Ii DEAN BEA.IRD:

n 'IIII!

I like to, if I may, Mr. Chairman, also associate

23

myself with the remarks of Mr. Harris to this extent. I

n

I"i
!1

changes from year to year, from decade to decade, from

,I

II

2

III'
Ii

century to century. And we shouldn't attempt to crystal-

:;

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lize in the Constitution attitudes of today necessarily

because they'll change. I think thati! we have a system

5I

whereby the Supreme Court can take cases of significance

that deal with large issues and so forth, we're protectin~:
the citizens. They will ultimately get the best judgments!
I
that would be afforded under a quality judicial system.

'J

I think it's a real mistake--now, when you look at the

10

statistics, forty-eight--

,

L
,. II ~ MR. SNOW: o".

12 :
(~~~ .?"\JL)~~'~~ ~~

Excuse me, just a moment, Dean Beaird. Dean Patter-
son, I primarily was interested in your staying to vote
I

.14 > I-

on the two-tier business and I appreciate your doing that.!

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I understand that you do have to leave.

"et
:>
j b ~ DEAN PATTERSON:

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17 ~

Let me second Mr. Harris' remarks.

1S JUSTICE NICHOLS:

It}

I do too.

IMR. ~()

SNOW:

21

Well, I'm sorry to interrupt you, Dean Beaird. I

'1 II
ii

just wanted to--

n I! DEAN BEAIRD:

1

I

.>t I

I think it&s important to make clear that by not

:1

II

~:-' I'

putting this specifically in the Constitution as original

II

app~llate jurisdiction of the Supreme Court does not mean

th,it the Suprme Court won't take a look at it. They may

very well look at all of these cases, I don't know. But

4 IIIiIi

I think we have to reserve a great deal of discretion. I

5 Ii

think the fewer cases that we can--situations that we can

Ii

6 Ii

specify directly in the Constitution, the less likely we

j!

7 II 1,1

are ten years from now or twenty-five years from now, to

Ii

I

be going through this same process.

9 il DEAN COLE: il

10

May I make a short comment? Mr. Harris' comments

were based, as I understood him, on the notion that the

Supreme Court would have the power to distribute this

jurisdiction.

HARRIS:

15 ~

To designate that, as of now, all constitutional

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16 ~

questions will come directly to the Supreme Court.

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17 ~ DEAN COLE:

I 18

They do not have that power at the present time,

)9

right? That would be another change?

II

~o MR. R. HARRIS:

21

This--my proposal would be to specify death penalty

cases where it's imposed and grant to the Supreme Court

the right by rule to designate other classes of cases in

which it will have original jurisdiction until the rule's

changed. That's what I would propose.

PAGE 66

DEAN COLE:

2

So the Supreme Court would then have the power to

3i

set up appellate jurisdiction for themselves and the

r

4I

appellate court?

5 MR. R. HARRIS:

6 Ii

Well, they could take from the Court of ApPeals

those classes of cases that they designated that should
7I

8 II

come to them directly.

II

9 II DEAN COLE:

10
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o.l>...
~ 12 ~
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I agree also with Mr. Harris. SNOW:
All right. Well then, we'll have to take another vote. This is where on constitutional questions involving the interpretation of the State Constitution or the Federal Constitution, that it be included in thie Article that they go on direct appeal to the Supreme Court. And those of you who favor--

18 DEAN COLE:

19

Mr. Chairman, dould I ask a question there? The way

20

you stated it is all questions pertaining to the donstitu

21

tional issues. Now, I think that stated that way, that

i I

I

22

to me would be almost every criminal case would go directt

I

23

ly to the Supreme Court. I understood--our committee hadl

I

24

talked about the situation where the lower--the trial I

25

court had found something repugnant to the Constitution

------------------------

---------

rr--------------
and that case--

PAGE 61

2 MR. SNOW:

That's what I intended. It just came out wrong.

~hose of you who favor is, in an interpretation where a

5

constitutional question has been raised and is interprete1

i

6

in the lower courts where that would be included in the

7

Constitution, would those of you who favor that say aye--

8

raise your right hand. [A show of hands.] Seven. Those

9

opposed? [A show of hands.] Seven to three. So that

10

will be in the Article. ~hose of you who feel that the

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~ 12 ~
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matters dealing with revenue and taxation in the State should go on direct appeal to the Supreme Court of the STate will raise your right hands. [A sho~ of hands.]

14 I.>.--. JUSTICE NICHOLS:

1:

15 ~

Could I qualify my vote at this time? When it is

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16 .~..

politically--I see this as one reason that this might get

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17 ::;

through. I would qo--I would be opposed to it because

18

we're going to get it anyhow but I'm making this--I'm

19

agreeing with this because I think it will have a better

20

chance politically to get through the legislature.

21 MR. SNOW:

22

You think when we get it in the Judiciary Committee,

23

it's going to go'in there anyway?

24 JUSTICE NICHOLS:

25

Well, that's what I'm saying. I just--but I would

PAGE 68

prefer to vote the other way.

2 MR. SNOW:

~11 right. Then the vote was only two. Those

<+ i

opposed to it, raise your right hand. [A show of hands.]

I

5I

Eight. All riqht. That will be deleted.

oI

W@ had @l@ction matt@r.--anythinq conc@rninq @l@c-

7I

tions where there's an appeal to be included directly to

8

the Supreme Court. Those in favor of that, raise your

right hands. [A show of hands.l You're qualifying that

10

again?

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11 ;:J'USTICE NICHOLS:

'lo.1"...

~ 12 ~

Let me again say this. Elections--a lot of times

~r~ 14 .~.

they need to Be dealt with immediately because they want
i
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to have another election There's a time element involvedl.

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15 .:.

For that reason, I would say that that would expedite it

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16

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by coming direct up there. Of course we could, by rule as

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we were talking about, after it went to the lower court,

18

could take it up anyhow if we saw it was granted but if

19

it went directly--and I'm thinking of time, the saving of

20

time and money and accommodation of those involved that I

[I

21 I

would vote for it.

22 MR. SNOW:

23
I24

[~ Those in favor of this will raise your right hands. show of hands.l Two. Those opposed? [A show of

25 ~ __ hands.J __Eiq~t~Any other~mat~~r~hat--does any memb@r of

PAl;}:; 69
r--the ~omr:itte~ move~~~:-~-:~~~~~~attersbe presented

2I

directly to the Supreme Court?

\ I: MR. STUBBS:

:1

,~

,I
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II

Would Robin's comment be appropriate for inclusion

II

5 II

at this time? As to any other matters for the Court by

o II I:

rule to specify that it could bring them up within its

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original appellate jurisdiction.

H I! MR. SNOW:
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Those that would favor--

10 DEAN BEAIRD:

That is by rule rather than individual, certiorari

situations?

R. HARRIS:

By rule as to a class of cases.

15 .:>MR. SNOW:

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16 z

Those that would favor that by rule by olass of case$,

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17 "en

direct appeal to the Supreme Court, will raise your right

]X

hands. [A show of hands.] Eight. Those opposed? fA

19

show of hands. ) Two. Any other motions? That oarried

20 I

eight to two.

I

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All right. Now--

22 JUDGE SMITH:

23

There are some other motions I'd like to make, but

24

obviously it would be nine to one so--

25 MR. SNOW:
------~------------~-----~--------------

- - - - - - _ . _ - - - - - - . _ . _-_ .. ~~._ _-~--_._.~-----_.-

..

- - - .. .. -

PAGE 70

II

We might be put on notice.

Ii
.2 II JUDGE SMITH:

II

You're put on notice by it going just like it is

basically. I think you know that already.

5 MR. SNOW:
All right. Now, how about the--where do we stand

right now as far as the language posture is concerned?

.Ill

Have y'all prepared any alternatives to be available?

I

Y II MR. HODGKINS:

10

At this moment, no.

11

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BEAIRD:

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l~e prefer, Mr. Chairman, in light of the discussion I today to come back with a draft which incorporates the

14 >-

decisions made here today. There is one area that probab~

.~...

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ly still remains for discussion and that's that area

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dealing with appeal as a matter of right, whether or not

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the Court of Appeals should have some discretionary

IH

power. I would--I think that the Committee should look

19

at that and try to get some data on that to see what the

impact of that might be. If it's appropriate to reserve

that until--

SNO~l:
I think it wuld be appropriate. Terry, can you and i

Marty and Cindy kind of check into the--some of the other I
I
I
jurisdictions around the country and see the limitations
-, ..;

I'At~E 71

that have been put upon the right of appeal to the Court

2

of Appeals as well as the Supreme Court and--especially

in matters of divorce and some of these other heavily-

appealed cases that we've got, if that's being done any-

where by oertiorari.

MR. MCKENZIE:

7

In working with the committee, I read that jurisdic-

tion provisions of forty-five state Constitutions that I

10

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had and in two of them the provisions simply says that the
!
jurisdiction of all appellate courts shall be as provided by rule in the Supreme Court. In seventeen of the forty-
five the jurisdiction is spelled out. But in about half of those, there was only one appellate court in the State. So it said simply that all cases shall be appealed. And in twenty-siX of the forty-five states, the provision simply says the jurisdiction of the Supreme Court and Court of Appeals shall simply be as provided by law.

18 DEAN BEAIRD:

19

It would be helpful to us--to the subcommittee--to

20

consider that and try to figure what the impact of all

21

the options might be and report back if there's any

22

questions. That is, if you don't feel like you have to

23

make this decision today.

24 SNOW:

25

No, we don't have to make it today and r would

----~-----~---

PAGE 72
- - - - - ~ _ . ~ . _ - , . _ - - - ~ - _ . _ - - ~ ~ - - - - - - - - -~ - --_.-
I r--~appreciate it if you would further look into that. In

2I

light of that, Marty, I'm inclined to think that we

II

.~ i"

should possibly postpone the public hearing. We want a

"

draft of what we're going to do.

5 I MF.. HODGKINS:

() I

If we could do that and pull together what we're--

7 IMR, SNOW:

8

How about on Friday, the 7th? Could we have another

meeting of this whole Committee? And at that time we'll

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corne up with--have a tentative draft of our recommendation~ subject of course to the public hearing we're going to have. And then, after that, we will take our final vote on it but these are tentative matters that we're still talking about. Is that--does anyone disagree with that? Marty, give me some idea now how the other two commissions! are coming along. When are we expecting to go before the Select Committee?

IH IMR HODGKINS:

19

I don't think a date's been set for that. The

20

Elective Franchise has pretty much completed their work.

21

We have one more meeting, I think, the 29th, next Thursday

22

when they'll vote finally.

The Retirement and Scholarship Committee is meeting

I

24,

next Wednesday to review proposed language on the Scholar-i

ll!
II
25

~~~~_~~~_~_~~~_~~_=~_=_~_=ti:le ~nd-=h~_~'_~-=_~_:~~~_~~_e~_~_~=~~i~J i'

PAGE 73

1 , - --possibly scheduled a hearing for sometime in October--

2I

the 12th or 13th.

.I 3 I! MR. SNOW:

4 I.I,

Well, without delaying it too much, maybe we could

5I

take some of the tentative proposals that we've already

6 II

made, especially on the trial courts--I think that's

1 II
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10
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where we're going to get most of our reaction as far as the public is concerned. I know Judge Stan~ey is here with the Probate Courts and, JUdge, we are going to have a public hearing on all the recommendations. They're all just tentative right now and you will be advised of those and sent copies of that before the public hearing. But maybe if we can send out and--just some idea of what we'vel done here today--the whole thing just so we won't be prolonging this thing too much. The ideal situation would to have the--this Committee meet again on the 7th and then of course still go ahead with the public hearing

18

on the 8th, if it wasn't for the conflict. Maybe the

19

fol1owinq--

20 MR. HODGKINS:

21

I think the only prob1em--it might be difficult to

22

get out in that length of time all the information--

23 MR. SNOW:

24

I'm not suggesting that we have the--as a result of

25

the meeting of the 7th. I'm suggesting that we take what

PAGE 74

we've already done on a tentative basis as well as

general language on what we did here today and put that

3

together and mail that out to some of the folks who would

4

be especially interested in it and notify them of the

public hearing on the matter. And suggest that these are

tentative suggestions. Then we will have our meeting

again on the 7th. But we'll already have sent this infor,

mation out to agree on some draft tentatively again.

')

Because we certainly don't want to have a final agreement:

10

before we have a public hearing. That would be a little

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anticlimatic, I think. I think we would be subjecting

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ourselves to a great deal of criticism and justifiably so .; I

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Can you do that, Marty?

. 14 .>..- MR HODGKINS:

~

1:

15 ~

[Indicating affirmative response.]

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If you and Terry will get together on some language

18

relative to the appellate court jurisdiction in light of

19

what we've said here today. Of course that will be

20

tentative language also. And just include that in the

21

draft--that's the only--maybe some of these other places

'J I

where we've got a question or two, we can just put it in there that there i. a subcommittee continuinq to work on

2~ I

the rules of the appellate courts as concerns their taking!

" L_- o~ appeals or_ap~ea~_... a_l1Illt:~or riqht._~wish that,

PACE 75
I r-----:-~~~~s--:~:- ne:~-~a~:~~ay agreeable with folks or would

2 II

you prefer to have an evening meeting? Do you think an

III
3 II

evening meeting would be better, Joe?

Ii

<\ II MR. DROLET:

II
I do. I don't think people like to come to hear-
)I

h

ings on Saturdays.

I,

I

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7 I MR. SNOW:

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I think probably this Committee's action will gener- ,

9 II

ate somewhat more interest from some groups than what

10
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some of the other two have done. And I certainly think we need to give everybody--let's have it on Saturday, the 15th, the following Saturday at 10:00 o'clock in Room 341 here at the State Capitol building. As soon as the public hearing is over, I think maybe the following week on the following Friday, that we can meet here. Now, this is a very important meeting, the final meeting that we have because we will have to go and we've got to have-~

18

what do our rules call for?

I

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folks on that day?

II '0 MR. HOllGKINS:

21

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Majority.

n II MR. SNOW:

We've got to have how many

23 II

Just a majority?

L. the:~ti~e_~::it~~e. 24 II MR. HODGKINS:

2S

__--,'1a jority..Of

Mr. Chairman.

Ir~~: SNOW:

2 II
I:I'

Okay. A majority of the entire Committee has got

,I

I'

to vote on the final draft. Folks, thank you so much and

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I appreciate the diligence that you've shown.

5

(Whereupon, the hearing was adjourned at 12:05 o'clock,

. am. ]

C E R T I F I CAT E

I!

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8 Ii ,I

I hereby certify, as the court reporter, that the

I'
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9 Ii statements that appear in the proceedings were taken steno-

10 graphically by me, and thereafter reduced to typewriting by "-z:
iJ :;:me, and that this transcript is a true and accurate record to o "~ "
~ 12 ~ot the best of my ability.
~~t"~~

-

14 .>..-

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DARLENE F. MCMURRY,

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20 I,II

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III

23

24 I

"I

INDEX Committee to Revise Article VI Full Committee Meeting Held on Sept. 23, 1977

FULL COMMITTEE MEETING, 9-23-77

Proceedings. pp. 2-4
Section IV: Superior Courts Paragraph I: Jurisdiclton of superior courts. pp. 6-7
Sections'y': Court of Appeals, and VI: Supreme Court (Jurisdiction), pp. 7-71 (Two-tier appellate system recommended)

ARTICLE XI: MISCELLANEOUS PROVISIONS

Section I: Miscellaneous Provisions

Paragraph I":

Continuation of certain constitutional amendments for a period of four years. pp. 5-6

(Local constitutional amendments affecting Article VI)

STATE OF GEORGIA

l

SELECT COMMITTEE ON CONSTITUTIONAL REVISION SUBCOMMITTEE ON THE JUDICIARY
Room 133, State Capitol Atlanta, Georgia October 7, 1977 10:00 o'clock, a.m.
PRESIDING OFFICER: Wayne Snow, Jr.

BRANDENBURG & HASTY
SCIENT/HC REPORTING 3715 COLONIAL TRAIL, DOUGLASVILLE, CEORGIA 30135
942-0482 DEPOSITIONS - ARBITRATIONS - CONVENTIONS - CONFERENCE"

.

.__

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PAGE 2

I think we might as well get started. First of all,

4 If

Marty, if you will, give us your report on the mandatory

Ii

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appeals.

IIii

6 III MR. HODGKINS:

And, for the record, there is a quorum present.

1 believe at the last meeting the question arose as

7 '[

8 II IIIi

to how many states have a mandatory appeal such as Georgia

9 II

does. Right now, there are at least twenty-nine states

10
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that do have a mandatory right of appeal from final judgment of the trial court in both civil and criminal cases. Wayne noticed on the list of states that do have a mandatory appeal that all but Virginia of the thirteen original

14 >-
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colonies have that for whatever reason.

z'I

15 .:0 MR. R. HAR.RIS:

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You mean absolute as against mandatory?

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1 7 i;iMR. SNOW:

I 18

Absolute right of appeal, yes, not mandatory.

lY I MR. HODGKINS:

20 II i

There are a majority of states that do have that pro-

21

vision. I have no idea whether itls cunstitutional or

22

statutory.

2J i,ltMR. R. HARRIS:

24

Twelve of the original thirteen?

"ll~~._:~~~~~_:s~__ _

._ _.

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Right.

PAGE 3

2 II MR. SNOW:

II

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All right. Everyone should have the proposed draft

:1

4 II

of Article VI. Anyone that does not have that? This is

I"i

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the latest draft. The proposed, tentative draft of Articl

5 Ii

6 II

VI, which is the latest draft that was mailed to everyone

7 IIIIII

last week. Have you changed that some since--

II

II 8 MR. HODGKINS:

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No, it's the same one.

10 MR. SNOW:

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All right. In Section I, you will note the last sentence of that section. "The administration of this system shall be as provided by law." As you know, we have re-

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cently passed legislation. We have the Judicial Council of Georgia. Last year or year before last, we set up ten administrative offi~es of the courts throughout the State . This is already legislation. This portion of the system

IX

is already established and then, of course, anything that

Ilj

ueeded to be added to it later co~ld be done by general or

20

local laws in some area--or by general law, in this in9tanc~

21

as far as the unified judicial system would be concerned.

22

Are there any comments relative to Paragraph 27

23 JUSTICE HILL:
: Lcommi::~~c:_::::::: :~:a::d;t:::m::t:heI~::::~~u~~e_:~~:hJ

PAGE 4

supervision of the Supreme Court,~ in that sentence. Be-

2

cause in order to have a unified system, rather than it be

sole ly as provided by law and then t:,e law theoretically

.\

could be anything it chose to be . If the administration

of the system be under the supervision of the Supreme

Court as provided by law, then there would be a kind of a

pyramid effect which otherwise might be missing.

II I MR. SNOW: I Are there other comments on--

10 JUDGE SMITH:

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Wouldn't the supremem Court have the last shot at it anyhow irrespective of whether you put it in there or not, whether or not it was right or wrong?

1--l >...I.-MR SNOW:

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Yes. I th i nk we get into the area here 0 f t h e J. ea 1 ou~Iy

"IX
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16 ~ wo z
17 [:i

between the different branches of government to some ex-
tent. And f~om strictly a political standpoint, I don't

1i< )1
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19 II

believe that the legislature would be prone to want to su render all of its prerogatives as far as providing for the

I 20

make-up of the system itself.

I

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!JUSTICE HILL:

I just--

I JJ
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I don't propose that it should. I simply propose there be some limitations on the--what may be provided by law.

':'i !IJUDGE SMITH:

II

_

------------- ------- --------------- -- ------~------------~

r- - - - - - - - - - - - - - -A veto power is what it amounts to.

PAGE 5

2 I: JUSTICE HILI.:

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I wouldn't think so, necessarily. I don't think

10 JUDGE SMITH:

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I think politically you've got the best chance to let

12 :

the legislature--

@riMR. R. HARRIS:

14 .).-.
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Mr. Chairman.

15 .:. MR. SNOW:

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16 .~..

All right, Robin

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17 ~MR. R. HARRIS:

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Suppose you--I see the merit in what Justice Hill is

19

I,
saying. Suppose we look at the first sentence of Paragraph!

20

2 and say, "For the purposes 0 f admi nis tra tion, all 0 f the iI

21

courts of the State shall be a part of one unifi~d jUdicia~

22

system under the supervision of the Supreme Court. The

23

administration of this system shall be as provided by law.

24

That doesn't detract from the express power of the General

administered.
, ------------ -----'

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Ii MR. DHOLET:

!I

2i

Could you repeat that language'?

PAGE G

3 I MR. SNOW: It would be under the supervision of the Supreme

Court after the word "system." Strike the period.

n MR. R. HARRIS:

7

That might accomplish both purposes. It designates,

k I'

as rightly it should, if we're goin9 to have a Suprern~

,) Ii

Court that the Supreme Court. is--

10 MR. SNOW;

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Albert, what do you think?

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Yes, I want to know, what do you envision as being

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the increase in the set-up of the Supreme Court if it takes over these administrative duties. I think it's rather obvious that as it is right now, they don't have the manpower, the time or anything else of that nature to

18

fund this particular function. Wouldn't this mean a tre-

19

mendous increase in staff and also the obligations of, say

20

the Chief Justice?

21 i!I MR R. HARRIS:

2211

I don't envision that. I think the administration of

23 11
24 \1
lLi1
25

the system bt'ling as provided by law would keep that from
occurring because I hope that would mean a continuation of
~~_~~~~_:~_w_~~~ad~inistra ti ve of i ce s of the courts an~~_~-,

PAGE 7

L. forth but as now in place.

2

THOMPSON:

I mean that's as I see it.

I 3 '~1I

I would think that that would be mandating to some

4 II

extent that the Chief Justice is going to assume a chief

II

5

administrative position and that, as such, he is going to

6 II

have to spend a great deal of his time administering the

7

system. Now, maybe the administrative districts would be

under--maybe that would be part of what he's doing. But

he would not be able to do what he--

10 MR. R. HARRIS:

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16 l~D MR.

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Well, hopefully, at some point in the future, as I see it, the Supreme Court would have a greater involvement in the overall administration of justice and seeing that it's properly carried out and a lessening of the current burdens with respect to appeals. THOMPSON:
I have no objection to it, Robin. But I think if we

Iii

put the language in there, I think we ought to put it in

19

there with full realization that what we are doing is beef

20

ing up or building up another hierarchy because that's

21

what it will eventually be.

22 MR. R. HARRIS:

23

I t could.

24 JUSTICE HILL:

2S

Well, I think this is true. And the problem is

I

__________~

.J

PAGE B
w--whether or not you're going to have a diversified system

with islands virtually unconnected or whether you're going

: II

to have some sort of unified system with some means of

communication and--

5 MR. THOHPSON:

h

Well, as I said, I have no objection to it. But 1

7

think we're g01ng to have to face that this is what we're

doing and keep this in consideration when we're putting

'}

languaye in.

10 JUSTICE HILL:

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11 0-
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12 :
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That is part of the process certainly. I do not visualize any increase in staff. The present staff of the Judicial Council would continue to function as the staff

14 .>.-.

in performing these services

'"

l:

15 .:. MR. SNOW:

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16 .~..
oz

Well, it is established by law.

17 :::i

think about i t'j'

Howard, what to you

18

OVERBY:

19

I just have some reluctance as to whether the General

20

Assembly will buy it. But I have no particular argument

21

against it myself.

22 MR. SNOW:

23

Do we have any comments from--Joe?

24 MR. DROLET:

-----------------
the Supreme court

--------, PAGE 9
- - ------- --~- ------~--- - - - - - - - - - - - - - - - - - - - - - - -
if we're going to have a Supreme Court. I

2

And I don't think the language that Robin has suggested

I

3

really takes anything away from the General ~ssembly as

I

4

far as the administrative operations that exist now. It

5

seems logical that the Supreme Court should have some

6

supervisory function.

7 MR. SNOW:

8

I'm not sure that it takes away anything from what

9

I
II

10

the General Assembly has now. I'm not real sure that it I i
II
adds any--if you just left it at the end of "system"--if

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you've got a unified jUdicial system and you have a suprem~

I

Court, the Supreme Court ultimately is the one that's

I

i

going to have to make the determinations on different

- 14!

things anyway whether you've got it in there or don't have

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it in there.

16 ~ MR. DROLET:

oz

~

17 :

I don't think it's that clear without saying it. I

18 II

see the same problem that Justice Hill was raising about

19 I'

the sort of islands of disconnected authority in regard to

20

the administration of the judicial system.

21 JUDG~ SMITH:

22

What islands to we have now, Joe, that--that this

23

language added to this would clear up?

24 MR. DROLET:

I

I

25

Well, I think ultimately the supervision of the a d mJ..n-1i

--------

JUDGE SMITH:

That would have to be as provided by law regardless

of what language we put in here.

MR. DROLET:

Right. I think that would sort of just tie it in so

that there would be some sort of handle for the Supreme

10

Court to have an overview of what is going on with these

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other groups being created--perpetuated. I'm a little bit afraid that they can set up their own bailiwicks a little bit away from the judicial system as it exists--the

14 >I'<"{

Supreme Court, Court of Appeals, Superior Courts.

X

15 .:. JUSTICE HILL:
":':">

16 .~.. oz

Let me make one further observation and then I'll

<{

17 ~

shut up. It's been my observation that certain govern-

18

mental processes have the tendency, not only in Georgia

19

but in other states and the Federal government, is that

20

when there is a problem, you create a new agency or de-

21

partment commission or something, it seems to me that only

22
23 24
25 I~

rarely when the problem is recognized does government ~eek to solve that problem by saying to an existing department or agency, board, bureau or commission: "You solve it." It _a_l_W~a__y_s_-_-_t__h_e_s_o_l_u_t_ion is to create a new island and

-~~-------~---------

PAGE 11

that's what I'm trying to avoid in the judicial branch--th

2

constant creation of new groups to solve whatever new

3

problems may arise.

4 I' DEAN PATTERSON:

5

Mr. Chairman, it seems to me that there is not much

6

disagreement from the discussion I've heard about the

7

concept. And it appears to me that this language is mere-

ly clarifying the concept to remove possibly ambiguity andl

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not changing anything substantive.

10 MR. SNOW:

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11 l-
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You're talking about the addition

~ 12 ~

the supervision of the Supreme Court"?

~ ~ -,.- DEll' PATTERSON:

! 14 I-

Yes.

'x"

15 ~ MR. SNOW:

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16 .~..
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Do I hear a motion?

17 ::; MR. R. HARRIS:

of the words,

"unde~ i I

18

I move it.

19 MR. DROLET:

20

Second.

21 MR. SNOW:

22

Motion made and seconded that the additional language

23

be added "under the supervision of the Supreme Court" at I

24

the end of the first sentence under Paragraph 2. Those

I

25

who--is there further discussion on the motion?

I _ _-.J

rr------------- -------- -----._ _--_ .. .. .. _--~-._--~_

.. _.-._--------~

_-,---~-~---,._-----~._~--

I JUDGE SMITH:

PAGE 12

2I

I want to make one statement, Mr. Chairman. I think

II

3

11
':

in preparing this document, now, we'd better realize that

4 III'

every time you put something that has the appearance that

I'II

5 II

you're taking power away from the legislature, it's just

II
6 Ii

another red flag. And the more red flags you have waving,

7

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the less chance you got of getting it through. And this

Ii

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is just another red flag. With that comment, I have

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nother further to say.

II

10 MR. SNOW:

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Those of you who favor the motion will indicate by raising your right hand. (A show of hands.] Eight. Those opposed? [A show of hands.] Eight to two. All righ t .
Going into Section 2, the only question that I know that we've got in Paragraph 1 of Section 2, other than what new questions may be raised, would be whether or not

18

we have seven Justices or reduce that to five in view of

19

what action we took the other day. So I think it would be

20

better to go on through this entire section before we re-

,

21

address that particular section. Other than that question,

22

are there any other comments relative to Paragraph l?

23

All right. Paragraph 2--

24 MR. R. HARRIS:

25

There's something left out.

~

------- -- - ------ ---------------- ------------------------- ---

PAGE 13

JUliiTICE HILL:

2

Mr. Chairman, as I read it, the Justice who is dis-

3

qualified may be the one who's appointing the replacement.

4 MR. R. HARRIS:

5

That's--that was the--

6 DEAN PATTERSON:

7

Should that be the Chief Justice?

8 MR. Snow;

9

The--

10 MR.
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R. HARRIS:
Of course the Chief Justice might be the one disqualified. The thing--I know in Kentucky, they've provided that in this instance the Governor makes that designation of those--of the judges to serve. I don't raise-I simply throw thatout. I have no--1 would suggest that perhaps the remaining justices shall designate a judge or judges of the Superior Court.

18 JUSTICE HILL:

19

May I--what about "may"? Because a lot of time it's

20

really unnecessary. It comes out six to nothing and rather

21

than "of the Superior Court," I would delete those words

22

so that it would authorize us to appoint someone from the I

I

I

23

Court of Appeals to sit on a particular case; whereas this i

24

presently limits it to Superior Court Judges. I would

I

25

change the word "preside" to "participate" in the case and II

~_~

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.

.----J

PAGE 11

IT--'---'--"~~-'----'--

-------. ------ -j

II

just tighten it up by--instead of "one or more." just say I

"when a Justice of the supreme Court is disqualified. the
2 I

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remaining Justices may designate a judge or judges to

i,

III
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participate in the case. II

i!

MR. SNOW:

Y'all turn to page eight. Section--under Section 9.

Paragraph 2.

MR. THOMPSON:

9

That applies to Emeritus Judges; it does not apply to

10

currently sitting Judges.

" 11 Ez MR. R. HARRIS:

o......

I like Mr. HilliS proposal.
~ ~ 12

~ ~MR. -

OVERBY,

14 ;~

Justice Hill, would you rephrase

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please, sir?

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16 '~" JUSTICE HILL:

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17 r0:1;

Yes, sir.

Just since there were

your language again. several possible

18

changes to be made, I would propose that the words "one or

19

more of the" be deleted. So that it would read "When a

20

Justice of the Supreme Court is disqualified from deciding

21

any cilse"--I think you could almost omit "by interest or

22
23
t24 II
25

otherwise"--"the remaining Justices ~ay designate a judges

or judges to participate"--perhaps it would be better to

say "designate a judge"--if you've got two, then you do

tw_o_-_-_"_m_~_d_e_S_i_g_na te

a

judge

to

participate

in

said

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case

PAGE 15
-------------------------"l

MR. THOMPSON:

I

I

2

You also said, add the Court of Appeals, I think.

I

3 JUSTICE HILL:

I

I

4

Well, it covers that by deleting the words "of the I

5

Superior Court." That would, I think, permit the apPoint-I

I

6

ment from the Court of Appeals. Or we could add--say "of I

7

the Superior Court or of the Court of Appeals."

I

8 MR. R. HARRIS:

9

The shorter the better.

10 MR. SNOW:

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.. 11 lI>: .o..

Would there ever be a situation where all the Jus-

12 :

tices would be disqualified?

Q"-!JUSTICE HILL'

14 )01
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19

The one instance where I think that happened in the

history of the State was on the judges' pay raise and not I
I
only were no Supreme Court Justices eligible to participat~,

there were not judges in the State that would not be dis- I

I

quali fie d. And the court simply said that under those

I

unique circumstances they could go ahead and decide the

20

case. I don't really recall what the outcome was.

21 IMR STUBBS:

I

22

Why even limit i t to a judge? You allow practitioner~

i

23

to serve as judges pro tem in other circumstances. Con-

24

ceivably, you could have a case the magnitude of which

25

would suggest to the court the most distinguished _p_ra_c_ti_- --.-J:

,;po1nted. r---:~:er-1n=n:re. :1-n~

PAGE 16
-----------l
For example, Mr. RObin!

2 II

Harris, who is not a judge.

I
I

3! MR. THOMPSON:

I

:i

4 II

You'd put most distinguished practitioner?

5 II MR. STUBBS:

II

t> i I

Well, I wouldn't want to put that in there--"shall

designate a replacement to participate in said case."

JUSTICE HILL:

9

That would be fine.

10 DEAN COLE:

Actually you could read the language as it stands,

designate a judge to participate as being anyone.

SNOW:

I think we ought to keep the word Judge in there.

That would not limit it. The language would read under

the motion-~that was a motion, wasn't it, Robin?

R. HARRIS:

18

If he didn't make it as one, I will.

19 MR. SNOW:

20

Okay .'When'a Justice of the Supreme Court is dis-

21

qualified from deciding any case by interest or otherwise" -

22 MR. R. HARRIS:

23

Just disqualified from deciding any case.

24 MR. SNOW:

25

Okay. "--deciding any case, the remaining Justices I

.

........J

shall designate a Judge"--

PAGE 17
~'~-----------------l

2 MR. R. HARRIS:

3 I',

May.

I

I 4 MR. SNOW:

May designate a Judge.

5

Well, that's the reason I'm reading it over, to make

6

s~r~ we've got it right. "--may designate a Judge to

7

preside in said case."

8 MR. R. HARRI S :

9

To participate.

10 MR. SNOW:

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"When a Justice of the Supreme Court is disqualified from deciding any case, the remaining Justice may designate a Judge to participate in said case." Or "Justices."

! 14 ...
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Those of you who favor--or is there a second to the mo-

15 .:>

tion?

"0:
:>

16 ~... MR. DROLET:
.oz.

17 ~

Second.

18 MR. SNOW:

19
20 21 22 23
24
25
u

Those of you who favor the motion will indicate by raising your right hand. [A show of hands.) Ten. Those opposed? [No response.] OT\:ay. Allrigbt. Under Terms of Office has been added, in parentheses down at the bottom o~ that unless there is other questions on a different section of it: "Every vacancy caused by death, resignation
GOV-~ or other cause shall be filled by appointment by the
_

r--------- ----------- -------- --

PAGE 18

II

ernor, until the first day of January following the next

2 II

general election." You recall we did have considerable

.3 II

discussion about that when it came up before that that's

the language that we suggest. There may be some improve-

5

ments that you can make upon it, but we need to clarlify

it as much as possible.
II MR. R. HARRIS:

Is that now--that same sentence appears above except

it also specifies that it will be the General Election

10
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held next after the expiration of thirty days from the time such--

@r~ . 1~1 :u:<MR SNOW: This is an alternative means here.

14 ~ MR. STUBBS:

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15 .:.

We want to avoid what happened to Judge Smith is, I

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16 .~..

think, what we're after

o

z
17 ~ JUSTICE HILL:

18

Mr. Chairman, do you need the word or the prefix "un"

19

in front of the word "expired" in the fourth to the last

20

line in that paragraph?

21 MR. R. HARRIS:

22

Ye s

23 MR. SNOW:

24

All right. What is y'all sentiment?

25 _MR. R. HARI.IS:

---------~

PAGE 19
------------------------------------------------------ ---l
My inclination is to go with the--with the thirty-day

2

provision in order to avoid--well, of course if a vacancy

3

was created by death, resignation or other caU8e within

4

that thirty-day period, the Governor could just wait until

5

after the General Election to fill it.

6 JUSTICE HILL:

7

That's what we discussed before.

8 MR. R. HARRIS:

9

I think, based on that, that probably the one in

10

parenthese would be--assuming that a Governor would have

some smarts.

SNOW:

Marty.

HODGKINS:

Mr. Chairman, the question I would have here is what

would happen if, say, someone wasn't running for office or

died and there were two o~ three people running for that

18

office; the incumbent did not seek re-election. There was I

19

an election held and beforethe election was held, he died I

20

and there was an appointment made. So someone would

21

eseentially then have a two-year term but then that--you'd

22

already have candidates for that particular office. It's

23

kind of a remote circumstance, but--

24 MR. R. HARRIS:

25

Well, if you went with the

r------ _._._._._ -------------------------------~-- ----------------

.. _-_.

wouldn't be a problem because the filling of

PAGE 20 the vacancy

2I

would only last until the next January.

I

3 11 MR. SNOW:

4

Is there agreement that we can go with the underlined

section? Any--

() JUSTICE HILL:

il

S move.

I!

8

II
'i MR.

SNOW:

II

9

II
II

All right.

Those in favor, say aye.

[A chorus of

10

ayes.)

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11 i= DEAN COLE:

e ; ;"."o.".

One question, Mr. Chairman. I'm confused, but if someone resigns or dies within thirty days of the next

..! 14 ... '" :r 15 .:.
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election, there wouldn't presumably be time to get can-

didates--crank up any kind of election at that time; is

that right? So the--it says in the parentheses that "Ever1

vacancy . shall be filled . by the Governor, until the

I

i

18

first day of January following the next general election."

19

There may not be anybody obviously elected at that time.

20

Would the Governor's appointee just remain?

21 JUDGE SMITH:

22

He'd remain until the next January after the next

23

General Eelection.

M JUSTICE HILL:

25

That raises some problems. Couldn't--depending on

I

--~

PAGE 21
--------l

what you do, couldn't you kind of leave this one open

I

2

until you agree about what you're going to do about non-

3

partisan elections? Because I think that right now, as

4

an impact on this, is that--

5 MR. SNOW:

6

I don't think that we'll be really bringing that back

7

up again unless somebody's got a question on that. We've

8

already tentatively adopted the non-partisan elections.

9 JUSTICE HILL:

10
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Okay. What you--what you have presently and will not have then, is that basically on the general election ballot, you've got to have gone through a primary. The primary was back in August. So the first stage really is kind of beside the point. But with a non-partisan situation, which possibly--I'm not sure how it's contemplated, whether that would be the time of the primary or the time of the general election--you might not even have

18

the election at the time of the vacancy occurring. So

19

thirty days might be time for somebody to get something

20

funded up and go, really.

21 MR. R. HARRIS:

I

22

But if we go with the underlined langu.~e, i t seems 1

I

23

to me that if--if we had occasion for our appellate

I

24

courts to construe language, they would probably approach

I

I

25

it on a reasonable basis.

I
And the--let's assume the situa-i

----~

PAGE 22
- - - " - - ---"- -------- -------------------------------------- --1
tion where a person dies five days before a general elec-

2

tion. First, if the Governor did not fill the spot until

I

3

after the general election and there were no other candid- I

4

ates running--if he didn't fill it until after the general

5

election, then that person would remain in office until th

6

next general election. If the Governor, on the other hand,

i

7

elected to fill it for that five-day period, that man woul

8
9 II
10
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18
19

hold office until January 1st next succeeding because he was appointed before the general election. But on that January 1st, there would be another vacancy in that office because a "vacancy caused by death, resignation or other cause," therefore at that point the Governor would simply --if he liked the decisions rendered in that two-months interval by that Judge--could reappoint him and it would still last for that same period of time. So the more I think about it, the more I'm inclined to believe that that broad language in the parentheses part underlined would give the framework to cover about every eventuality that would come along.

20 MR. THOMPSON:

21

Robin, that l.nguage up there "until their successors

22

are qualified," that means that he would serve even after

23

the first of January if no one had been elected and quali-

M

fied to serve?

25 MR. R. HARRIS:

PAGE 23

Could be. But I think our courts are capable of

2

reasonably construing this language--collectively anyway.

3 MR. STUBBS I

4

The comment relative to non-partisan elections

5

doesn't apply to the Supreme Court. That's tied into

Superior Court Judges, isn't it? Supreme Court and Court

7

of Appeals--we don't say anything about non-partisan ~lec-

8

tions for them.

9 JUSTICE HILL:

10

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17 ~ MS.

Nor is there any provision to the contrary, as I read it. STUBBS:
Yes, that's right. So presumably it would be how-
ever provided by the General Assembly. But you had raised I
the question about non-partisan elections and there's nothing that relates to Court of Appeals or Supreme Court . MORAN:

18

Mr. Chairman, this bring up a point that I've been

19

concerned with. I think Paragraph 3 is remarkably vague,

20

maybe deliberately on whether or not we are going to pro-

21

pose a system of non-partisan election for the Supreme

22

Court and Court of Appeals. If they are elected by the

23

people a t the SAmlli time as the members of the Ge rie ral

24

Assembly, that's claar. Bdt in what manner, is not clear

,

25

unless we have a provision "as provided by law on a non- II

~

PAGE 24

partisan basis."

2 MR. SNOW:

3

Well, I think we should--

MS. MORAN:

5

Paragraph 6--do we want that language similar to

Paragraph 3 in Section l?

7 I MR. SNOW:

I

8I

Well, we had purposely left out--it was--it's in the

g Ii

old Constitution that they shall be elected by the people

I

10 11 12
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at the same time and in the same manner as the members of General Assembly. We left out" in the same manner" eo we could provide for non-partisan elections. MORAN:
Would it be helpful to indicate that it would be on a non-partiaan basis? SNOW:
Well, we could say that they shall be elected by the

Hi

people at the same time as members of the General Assembly

19

in a non-~artisan basis--

20 MS. MORAN:

21

--as provided by law.

22 MR. SNOW:
I All r igh t . lsi t agreeable that we add tha t language I
: l :nd::~~.:hi_~~~ ~::r:.:0:::"::::::~:":::~:":_r::i:::.;~:":~J

PAGE 25

---------_._--~-~----------------- - - - - - - - - - - - - - - - - - - - _ . ---------~~_.
provide for non-partisan elections in these situations.

l

I

2

Okay. There's no objection to that 50 we add that langu-

3

age "on a non-partisan basis as provided by law" after the

4

words "General Assembly" in the fourth line of Paragraph

5

3.

6 DEAN COLE:

7

Mr. Chairman, going back to the parentheses, I didn't

8

like Mr. Harris' scenario so much that the Justice could

9

be appointed and be kind of on-the-grid for two or three

10
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months and have to be reappointed and have to worry about that. It seems to me that the intent would be spelled out "Until the first day of January following the next general election in which the vacancy is filled." It seems to me that's what we're--a better approach rather than allowing an appointment that may be just two or three months. And in other words, the appointment would stay in the office until his successor was elected at the next general--

18

possible election. It seems to be that's a little tighter

19

especially where a change in the governorship occurs. It

20

might create some problems.

21 MR. DROLET:

22

Yes, you could have a change concurrently with the

23

January 1st.

24 MR. SNOW:

25

J "Until the first day of January followinq the next

PAGE 26

r,Il general election in which his successor i s"-e--l-e-c--t-e-d--.""" --~------"----~--------__-""

_.---._-~-----"-----------"------"---_.

I 2 MR. STUBBS:

Ii

3

We've been worried about what the General Assembly

4 I:1,

might do; we ought to worry a little bit about what the

'I

I
5i
I
I

Governor might do. While he can't actually veto a resol~-

6

tion of the General Assembly relative to a constitutional

amendment proposal, he can be real political and I think

we ought to be careful about eliminating too many--or im-

posing too many limitations on the Governor as a check

10

and balance in the processes of government.

z"
II ~ MR. SNOW:

.....0
0..
@~ r12 .u.. .iz=.. :;:

Of course we've got a--that's a very good point and
,
I'm not throwing off on the Court of Appeals of the suprem1

14 .>..-
'"
l:
.. 15 .)
".:.>.
16 .z..
..z0
17 '"

Court in any way because occasionally they do have someone
I
elected. But most of them are appointed and to just say
that these people who are appointed, even though they
stand election every six years or eight years, whatever

18

the case may be, is--they really are not that close to the

19

general public. Now, it's true. But your legislature is.

20

We catch your flak all the time and it takes us a long

21

time to come aroubd to doing some things occa~ionally.

22

But it generally is responsive to what the majority of the \

23
24

MR.

folks in the
R. HARRIS:

State

feel

like

they

need or--at

the

JI time.

25 _____ .

'~_E_v_e"ry vacancy caused by death, resignation or other

PAGE 27 - - - - - - - - - - - - - - - _ . _ - - - _ . _ - - - - - - - - - _ . _..._---~
cause shall be filled by appointment by the Governor,

2

until the first day of January following the general elec-

3

tion in which a successor is elected," and leave out the

4

"next."

5 MR. THOMPSON:

6

The only thing, Robin, that doesn't give any mandate

7

that a person be elected at the nearest general election.

8

Yeah, he could stay in office presumably because there are

9

no guidelines saying that someone must be elected at the

10

nearest general election.

"z

11 ~JUSTICE HILL:

o...

w

12 ~

I suspect someone would run against him and that

~ ~"~ ... ~

would force him to run. What you're suggesting is that

! 14 I..-. :z: 15 ~
"'"::l
16 .~..
oz 17 ~MR.

he might just sit and not qualify to run, but then anybody else that would qualify to run would get that seat, it seems to me
THOMPSON:

18

I can't imagine them not really having an election

19

at the next one, but this does not mandate it. And I

20

think that what we're trying to do is tie it down so that

21

it would be mandated.

I

22 DEAN COLE:

I

23

That--I agree with that, but I think next--in a w~y

24

YOUJI
it's stronger the way Mr. Harris said it because when

25

____sa~__ ~~__next general election in w~~c_~~succ_:ss~_~_=~

_

PAGE 28

rr----- -~~-e c ted-,-~::-~~ ha-:~~~ f ~~~:~~~-l i k ~-~ha t~:e :~::-P-~~-~l-S-~----:

!

2

Like whereas if you take out the "next", you just assume

3I

following the general ~lection. The assumption will be

4

the nearest one. Maybe "nearest" is a better word.

5 HR. R. HARRIS:

6

I think the matter, then, could be addressed by the

7

General Assembly as to when elections would be held for

these kinds of vacancies. And the General Assembly could

9

address whether there should have to be an election if the

10

vacancy was created forty-five days, thirty day, fifteen

\1 ....
.'lo"L..
12 ~ MR.
@r~

days or sixty THOMPSON:
You know

days prior to the there's practical

next general election. matters in when a person

14 .>...-

can be added to the thing. I'm thinking about printing

'x<

IS .:.
":':">

the ballots now. How--

16 .~.. MR. R. HARRIS:
oz

17 ~

well, that's why I think it would be a matter that

18

would address itself to the legislature who could take

19

into account all of these things in promoting the legis la-

20

tion that says when--what the day--time is when this elec-

21

tion must be held.

22 MR. THOMPSON:

23

You know the language as it was in the parentheses

24

without the addition to it, I think, would really provide

2S

for the thing--in the next general election. And that

PAGE 29
becau~e YOu-~-~~ mean. the next possihle general election

2

ready have laws setting up when the printing must be done I

3

and other things of this nature. And if it's too late at ',I

the time the person resigns or dies to comply with that,

5

it would automatically go over into the next general elec-

6

tion wherein he could follow the law as provided.

7 MR. R. HARRIS:

8

I'm not sure if you tie it down in the Constitution

9

as just the next general election--I'm not sure that the

10

Constitution would take into account how long it takes to

Czl 11 ...
'o."..
12 :
@r~

print a ballot. It would just almost mandate that at the next general election, there must be an election. I really like the Dean's suggestion.

14 ..>...-. DEAN COLE:

<C

:I:

15 ,)

It may solve some.of the problem to say in which--or

Cl

'::">

16 .~..

the ganeral election in which his successor maY--a succes-

o

Z

<C

17 :

Bor may be elected. That might solve the problem. In

other words, if he may be--if there's time to get on the

19

ballot, then--

20 MR. THOMPSON:

21

What about "can be elected" instead of may?

22 MR. SNOW:

23

" . in which a successor can be elected." Leave out

24

the word "next." Is that a motion?

:;s llOEAN COLE:

_
_ - - - - ._-----_._---~ ..

PAGE 30

So move.

2 MR. SNOW:

.3

Se cond?

4 MR. R. HARRI S :

5

Second.

6 "JUDGE SMITH:

7

How would that read, Mr. Chairman?

8 MR. SNOW:

9 II

All right. "Every vacancy caused by death, resigna-

10

tion or other cause shall be filled by appointment by the

z\:l II ...
.'lo1"...
e);~j

Governor, until the first day of January following the general election in which a successor can be elected." Those in favor, will raise your right hands. [A show of

! 14 ...

hands. ] Nine. Those opposed? [No response.]

'z"

IS ~ JUDGE SMITH:

:"'>"

... 16 zII>

Mr. Chairman, that next to the last sentence:

0z

17

IX
'"

vacancy caused by death " that's out; right?

"Every

18 MR. SNOW:

19

Yes, uh-huh. This is a substitute sentence. All

20

right.

21 DEAN PATTERSON:

22

Mr. Chairman, I've got a question. I notice that the

23

vacancies in the Superior Court be filled by appointment

24

by the Governor has to come from a--has to come from a

25

list provided by the JUdicial Nominating Commission but

-----_.._ . _ - -
not the vacancies in the appellate courts.

PAGE 31
Was that by

2

design?

3 I MR. SNOW:
II
No.

Where is that Section?

: II DEAN PATTERSON:

6

Under the Superior Courts, page 3, seven.

7 MR. SNOW:
I I Let--I think it's the--has been our intent throughout

here that this would be done for all the courts--Supreme

10

Court, Court of Appeals and the Superior Courts; am I

"z

II ..
'o"

correct?

@;r"EAN PATTERSON: That was my impression.

14 .~.. MR. SNOW:

:r

15 .)

All right.

"'~"

16 I~II MR. STUBBS:

oz

17 ~

Has anybody raised the question--and I don't want

18

to sound like the Governor's man--but on the Nominating

19

Commissions that we're using now, about half those people

20

are not responsible to anybody. And if you commit the

21

Governor to appoint from that list, you're in effect allow1

I

I

22

ing non-responsible--I mean non-responsible to an elector- i

23

ate--people in effect to control who's going to sit on the

24

bench. And you're diminishing, it seems to me, the Gover-

25

nor's power in the check and balance situation. If he

J

PAGE 32

have done, that's one thing.

Governor Maddox did also.

MR. STUBBS:

I wasn't aware that Governor Maddox did it. But you

mandate him; you lock him in.

MR. SNOW:

Let me suggest this. "For the purposes of adminis-

"z
II I-
e ; i'o.."....

tration, all of the Courts shall be a part of one unified judicial system under the supervision of the Supreme Court. The administration of this system shall be as provided by law." I see no reason, if we fail to put this in

14 ;
I-

there, as to why the General Assembly cannot pass legisla-

~

J:

15 .:>

tion for the Judicial Qualifications Commission for the

"'J"

o 1() ~ z

appointment.

<l(

17 ::iMR. R. HARRIS:

18

I don't think so. I don't--I believe a Governor--a

19

mean Governor could take the position that you don't have

20

the authority--you can't bind him by legislation to that

21

kind of appointment if he's not bound by the Constitution

22

to follow it.

23 JUDGE SMITH:

24

I go along with the idea of letting the Governor do

25

the appointing. We've just about taken everything else

---------- ----------~.

PAGE 33
- ~--------- - - - - - - - - - - - - - - - --1
he's got away from him; leave him something.
I
2 MR. THOMPSON:

3

Wayne, I was just wondering. I don't know from my ow9

4

personal experience but how many bad appointments have we

5

known Governors to make in the last twenty or thirty years

6

with or without a nominating commission.

7 JUDGE SMITH:

8

I'll tell you this. Every man that wanted to get the

9

appointment and didn't get it would guarnatee you it was

10

bad.

"z
11 ~MR.
.lo.L.
12 ~
@F~

THOMPSON:
hnd 1 think that with the people electing judges, they'll possibly make more mistakes than the Governor

..14 >

would



J:

.. 15 o)MR. SNOW: "

~

16 ~ ~z

What is your pleasure on that? What do you think

17 ~

about it, Robin? Do you think it ought to just be left to

18

the Governor if he wants to follow the recommendation?

19 R. R. HARRIS:

W

I have real mixed emotions about it.

21 EAN COLE:

22

It seems to me they ought to be the same.

23 R. R. HARRIS:

24

Whichever way, it ought to be the same. I personally i

25

i

like to concept of the Judicial Nominating Commission.

iI

--------I

- - - - - ~~ ~-~~~--- ----~-~~--

--~~

PAGE 34 - 1 --~~-~-~----~--~~~---~-~

2

How's that commission selected--appointed by the

3 iI,

Gove rnor?

II

II 4 MR. STUBBS:

II

SI

Some of them are $elected by virtue of--it's the

b

I II

past president of the Bar--

7

II
I

MR.

R.

HARRIS:

'I

8
I

--the current president, the president-elect.-

'I

II <) MR. STUBBS:

10
11 ".z.. '0."".-.
12 'v" MR.
@r ~ t: ~ U '"
14 .>..~ :I:
15 .:.
":'>" 16 .zC.D.
0z
17 C'"D

--two members appointed by the Governor who are not lawyers and-SNOW:
Well, turn over there to it right now and let me just call your attention to this. Now, we initially put in there "from a listed presented to him by the Judicial Nominating Commission." Well, we've got in parentheses "(as provided by law)." You see, there is no official

IS

Judicial Nominating Commission as such. We have never

19

passed this constitutional amendment.

20 MR. R. HARRIS:

It's created by Governor's Proclamation.

22 MR. SNOW:

23

It's not a matter of law. So that's why we have

24

added this. Because there is no such animal under the law

25

as the Judicial Nominating Commission.

DEAN PATTERSON:

PAGE 35
- - - .. - - - - - - - - - - - - - - - - - - 1 --~-_._-_.----_---------~_._----~-
i

::

Mr. Chairman, it seem. to me that since the theory

3

under which we are proceeding here is that judges shall

4

be elected, that to require the Governor to appoint from

I

5

a list is not really a restriction on the Governor's power I

()

because those person put on the board are going to be sub-

;;

7

jected to the electorate anyway.

8 MR. THOMPSON:

9

Which is a very wise body of people-.-the electorate.

10 DEAN PATTERSON:

"z

11 I-
..'o"....

But, you know, this is the way the Committee has

9"- ~MR. ~ 12 ~

chosen to go. R. HARRIS:

l 14 I..-.

Well, I would move that the same language that is

:<z:l

15 .:.

applicable to the Superior Courts be added to the appell-

'"::">

16 o';

ate.

Z

<l
17 ~ MR. SNOW:

Is there a second to that motion?

19 JUSTICE HILL:

20

Second.

21 MR. SNOW:

22

Those of you who favor the motion, indicate by rais-

23

ing your right hand. (A show of hands.] Nine.

24 JUSTICE HILL:

25

Would it be simpler to put it in Section 11

MR. SNOW:

PAGE 36
1
I

I would think so. It could be put in one place for

all the courts. Let's make it Paragraph 3 of section 1.

JUSTICE HILL:

On the more pressing problem, Mr. Chairman, what

would it do to perhaps get a little bit vague and say--

strike the words in the Paragraph 7 on page 3, "from a

list presented to him" and inset the words "after review"?

So that as some systems presently are used, the Governor

10

11 .Cz..l
.'.0."....
9 r12 u'" ~ .~z.. :;:

14 .>..-

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15 olI

Cl

:'>"

16

<Xl
~ MR.

17

0zcr:
<Xl

still maintains the power but he does so only after the Judicial Nominating Commission has had their interviews and makes recommendations. Then it kind of becomes a certain amount of political pressure on appointment of someone who received approval of that Commission, but not essentially so. SNOW:
Okay. What would you--what was the language that you

18

suggested?

19 JUSTICE HILL:

W

Just say "after review by the Judicial Nominating

21

Commission ;,' I don't necessarily advocate that. I simply

22

propose it as a method of deciding how strong that languagJ

I

23

ought to be.

24 MR. SNOW: I

25

Well, " . after review of a list presented _t__o____h__i_m____b___y__"JJ-

-------- ----- ----- ------------------

PAGE 37
l I think we'd have to say "by a Nominating Commission as I

2

I provided by law." And--because there would be no--there

.3

is no Judicial Nominating Commission presently in the cOdej

4

It would authorize, then, a creation of a Nominating Com- \

5

mission.

6 MR. HODGKINS:

7

You don't really want that frozen in the Consti tution1

8 MR. SNOW:

9

No, I--

I

10 DEAN COLE:

I

"z

II ..
o'"

The body, you mean? It seems to me it would become

""

J2 :
@rl

a constitutional body if it was A8 we have it: " . by a Judicial Nominating Commission as provided by law. " In

.14 ~ '" :I: 15 o!>
":'">
16 ~
Q
Z <l
17 ~MR.

other words, you're taking out the Govern6r's mandate and putting it in the legislature--is that my understanding-the creation and development of that body? R. HARRIS:

J8

That's--how it's set up; who's on it.

19 DEAN COLE:

20

But it would seem to me it would have to be created

21

by constitutional language before the Governor--

22 DEAN PHILLIPS:

23

Mr. Chairman, may I call your attention to Paragraph

24

3 of Section 9 where we again state in our earlier draft

25

i~~S of the JUdicial Qualifications Commission. speaking

PAGE 3B
11- -~~-the m:~~:~~:iP ~~t~:S ~Od;: ~~:-::-~O~-talki:q ahout

2i

the same--

3 ',MR. STUBBS:

II"
4 !:
IiI

That's a different one, Ray.

S IilI DEAN PHILLIPS:

"

Differeont one.

MR. STUBBS:

Yes. That's qualifications as a disciplinary thing.

And it exists under the present Constitution. The Nomin-

10

ating Commission exists by Executive Order.

Iz.?

11 ~ DEAN PHILLIPS:

.a0...

@r-. .-_.12 .u'.".

By Executive Order only.

;:

z

~ MR. STUBBS:

14 >...-

Yes. sir.

':C

:J:

15 ~ DEAN PHILLIPS:

"~ '"

16 .Iz.I.I

If we have the Qualifications Commission, then it

<>

Z

4.
17 '"III

seems that we do need to decide the question, again, of

18

consistency. If we've got a Qualification Commission and

19

it has served a useful purpose; it is embodied as it is

20

now, do we want to do the same thing?

21 MR. STUBBS:

22

Use the same Commission or just a similar composition

23 DEAN PHILLIPS:

24

Similar composition. Because that composition ~ooks

25

pretty much the same as what we do now have by Executiv~

"------

------------

PAGE 39 --~------------------ -----------i

I

Order--members of the Bar, appointees of the Governor--

I

2 MR. STUBBS:

They're quite different. There are two members of

I

I

4

the Bar and then two citizens at large who are not I lawyers~

I

5

But the Judicial Qualifications Commission has got judges

6

on it too.

I

7 DEAN PHILLIPS:

8

Right.

9 MR. SNOW:

10

We could say " after review of recommendations from

"z

11 ....
'..o"....

a Nominating Commission as established by law." Or "cre-

@ r12 .'u"..

ated by law. "

5iz= DEAN COLE:

'"

..14 .>..-.

" for that purpose. ,.



%

15 .)MR. SNOW:

:"'>"

16 .~..

But it would still just only require the Governor to

Q

Z 17 ::;

review their recommendations.

18 DEAN PHILLIPS:

19

" after a review of a list "

20 MR. SNOW:

21

Well, " after a review of the recommendations ... "

22

I don't know that you--

I23 MR.

R.

HARRIS:
Well,

if

you're

not

going

to

hamstring

the

Governor,

!

24

25

then there's no sense in putting it in the Consti tution in iI

----

____________________--J

~~---

the first place.

PAGE 40

:: , DEAN PATTERSON:

I
I

3I I

Yes, I think it would be better to go ahead and re-

..\ \1

quire the Governor because I can't see that--

II

'i II JUDGE SMITH:

II

() iiil

The Governor may not like that.

7 :1 MR. R. HARRIS:

I,

~ I!ii

I think the initial question that we mayor may not

II":1
l)

have already addressed is, shall we tie the Governot' s

10

hands.

lz!J
11 ~ MR. THOMPSON:

"0..-.

12 u'"

You know, there's been a bill in the General Assembly

@r ~ .iz=.. :;:

every year for the last six, seven or eight years to do

14 >~

just exactly this and it's never passed--never gotten ,out

'"

:J:

15 .:>

of committee

":'>"

16

CD
~DEAN

COLE:

Q

Z

17 '""'

To set up this kind of commission?

18 MR. THOMPSON:

19

[Indicating affirmative response.) It's been in my

20

committee. One of them has, sometime or other.

21 DEAN PATTERSON:

Of course it seems to me, Mr. Chairman, that one of

the things we're trying to accomplish here is to take the

: L_::_:_~_i:._:_S_:_:_:_. :_~P_n_: ~ ~ _i:_:__:_

::::_i_:_:_n_m:_:_:_C_:_:_O_:_:_SS_fo_i_:_' :_,u_dq_: : _

PAGE 41
--------------------------------l
And, while it may not possible to take politics out of thel

2

judicial system completely, it certainly is within our

i

.3 II

power, I think, to recommend that the politics be mini-

I
i

I

4

mized as much as possible. It seems to me that by requir- I

5

ing the Governor to make appointments from candidates rec-

6

ommended by Judicial Nominating Commission, we may take a

7

lot of heat off the Governor. Because I suspect that

8

every time a vacancy opens up, there are a good many can-

9

didates--

10 JUDGE SMITH:

Iz:>

11 l-

The Governor wants that heat, Dean.

@;r'lo..l..<.. THOMPSON: And he has by Executive Order right now done exactly

14 ~

what you're talking about, which takes the heat off him if

I-

'"

:t

.15 .:. ":>

he wishes to take it off him. He can issue an Executive

16 .~..

Order doing so

o

z

17 ~ DEAN PATTERSON:

18

Well, it seems to me the fact that we've had--what,

19

the last three governors who have chosen this route means

20

that the governors tend to like it.

21 MR. R. HARRIS:

22

Let me ask you this. Suppose " shall be filled by

23

appointment by the Governor from a list presented to him

24

by the Judicial Nominating Commission as may be provided

25

by law." Now--

J

rr----- ---- - ----- --------~-.-.
II MR. MCKENZIE:

PAGE 42

--~---_._.--_.

__ .-_~--_.~

--1
I

2 'I

\

The only problem with that is what happens if the

1

[

i

3 ii

General Assembly just doesn't create one?

4 MR. R. HARRIS:

5

Then the Governor has the absolute right of appoint-

ment like he does now. He can do it by--by an Executive

7

Order-created Judicial Nominating Commission but it doeS-ll

8

and the General Assembly may not act. But there might

9 come a time when there i. a Governor in office who'e judi- I

10
"z
11 l-
.'o"".".
@;~

cial appointments, absent a statutory Judicial Nominating I
::m:::::::~ :::tb:h:: ::::a::o::a:np:::te:::a:: :::.Ge:::- II
in that event, the Governor would be bound by it.

14 .~.. MS. MORAN: -<

I I

:EO
15 0)

I'm wondering if it isn't rather naive of us to assum~

"'"::)

I

16 ~
1:1
Z
-< 17 ::;

tha~ that a Governor who is especially interested in making an I
appointment of a particular individual would see to it

18

that name appears on the list anyway?

19 MR. R. HARRIS:

I

20

I I think that there are some indications in the past

21

that this might have been the case.

22 DEAN PATTERSON:

23

I t is possible.

24 MR. STUBBS:

25

Anybody can take a recommendation to the Commission

rr-----------

II

including the Governor.

PAGE 43

2 JUDGE SMITH:

J

And I think his recommendation would receive top

Ii

4 'I

priority, as a practical matter. You can also--if you

put it into the Constitution, you can also put it in the

6

position where the legislature can blackmail the Governor,

7

too. I think you would-have more harm by puetting it in

8

there than leaving it out.

9 MR. R. HARRIS:

10
..,
z

You may be right

11 :;:DEAN COLE:

o......

~ 12 ~

You mean the whole clause?

,,- ~~ @)

~MR. 14!

R. HARRIS,

.......
J:

Just say "shall be filled by appointment by the

I

I,

... 15 .0.), ;;)

Gove rnor" --

16 ~JUDGE SMITH:

I
I
I
I

o

z

17 ~

I just hate to see the Constitution creating commis-

,

18

I
sions and committees. I just hate to do it. Besides that,l

19

I think the Governor ought to have his right to appoint.

20 MR. STUBBS:

21

Well, you're transferring ano~her fight which l~

22

utterly irrelevant to the Constitution. And that'~;)e'

I

23

tween the silk stocking law firms and the small law firns. I

I

24

You're transferring that either to the legislature or to I

25

the Constitution. Just as a practical matter, nine out of i

___-.-J

r
2 II

PAGE 44
te-':-of t~~ :~~bers ~~ th~Nominating commi:;i~n-~-~~~~-::~~

of the Atlanta Bar. And that turns--creates some sour

i

3 :1

stomachs around the State.

II 4 MR. THOMPSON,

5 II

Thatls one of the reasons itls never passed out of

6 II Ii

committee because lawyers in small towns and poor lawyers

7 II

feel that they have less chance, that only Bar-related

Ii

H IIIi

people will get the appointment from the Commission.

II

II 9 MR. SNOW:

to

All right. Do 1 hear a motion?

"z
. 11 ~ MS.
.o..
12 ~
@r~

MORAN: Again, lid like to see--in spite of our cynicism on
this, I personally favor the retention of this Judicial

14 I.>.-.

Nominations--

<l :I:
15 ~.., DEAN PATTERSON:

'::">
16 ~ Q z
<l
17 ~

I
I second that. 1--1 think that despite all practical4
I
ities involved, this does represent a step forward.

18 MR. SNOW:

19

Motion made and seconded that Paragraph 7 as it

20

appears on page three be inclusive of the Court of Appeals

21

and the Supreme Court and become Paragraph 3 of Section I

22

and that it read that: "All vacancies in the office of

23

the Judges of the Court of Appeals--Supreme Court, Court

24

I
of Appeals and Superior Courts shall be filled by apPOint]

25

ment by the Governor from a list presented to him by a

----

-------------- --------

PAGE 45 ------ ---------------------- - - - - - - - - - - - - - ,

JUdicial Nominating Commission as may be provided by law"?1
I
! DEAN COLE:

I--if comments are in order, Mr. Chairman, I think

that "may be" should be stricken. It seems to me if it's

constitutional language, we shouldn't just be saying, they

may do it and they may not do it--that it's either some-

7

thing we want or not, but not something that the legis la-

8

ture--they already have the power, I suppose, don't they

9

to create legislation calling for this commission?

10 MR. R. HARRIS:

CzI 11 l-
Io..I..<..
.. ~ 12 ~
~_ _~

Well, they--I think they could pass a bill today but it wouldn't--I don't think the Governor would have to be bound by it.

.14 >- MR. SNOW:

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15 .:>

It's always been in the form of a constitutional

CI II<
;:)

16 .~..

amendment when it's been introduced

oz

17 : DEAN COLE:

18

Well, my main point is that when you say in the Con-

19

stitution--you set up a body and then say, it mayor may

20

not come into existence, it kind of--there's something

21

sloppy about that; I don't know. Mr. Harris' political

22

analysis, I think, was correct but it seems to me better

23

to say "as provided by law."

24 MR. SNOW:

25

Okay. Terry, you've got--

PAGE 46

~:~.-:c~~~z::~t's ._-----.-._-----

2

exactly what you're doing with that language.

I
3 If

What happens if the General Assembly just days, "No, we're

II
-+ 11

not going to create it"? And the Governor is then bound

I

5

to make an a~pointment from a list that's not going to

6

exist. Do you prohibit him, then, from appointing?

7 [IDEAN COLE:
I

8I I

Well, if you take out the "may be", I would read the

9 II

sentence to say that there is a constitutional commission,

10
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II ~MR.
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14 >~ '<"l :I:
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the Judicial Nominating Commission. Its parameters are-MCKENZIE:
Only as provided by law. What happens if the General Assembly, like they have since 1971, just says, "No, we're not going to pass it"? DROLET:
I think if we put in the language we're talking about now, we're just eavding the question of whose policitics

18

is going to determine recommendations. Right now, it's the

19

Governor's and either you leave it in the Governor or we

20

ought to go ahead and say who this Judicial Nominating

21

Commission is in the Constitution.

22 MR. SNOW:

23

All right. Let's take a vote on--we can resolve one

24

question right now. Let's see if we can resolve this.

25

Those of you who are in favor of retaining a provision

PAGE 47
-.----.------.---. "-~--"----- . ,----.-----.- --------.-----.-.------ ---'1

relative to the appointment by a Judicial Nominating Com- I !

2

mission in the Constitution will raise your right hand.

i

3

[A show of hands.] Four. Those opposed? [A show of

I
i

4

hands. ) Four to seven, okay.

I

5 MR. DROLET:

I

I

6

I Now, I would not be opposed to having that language

7

in there if we knew who thio Judicial Nominating commiooio1

8

was and it was provided in here. In other words, that

I

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might be a difference. Because then we would have some

I

10

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certainty as to who it was we were voting for. OVERBY:
Mr. Chairman, I explain my vote by saying I don't believe the General Assembly would adopt it, period . SNOW:
All right. Well, we have deleted it. I f someone would like to have some language drawn up pinpointing exactly what would be in it and would like to present that

Us

at the final meeting after our public hearing, of course,

19

we will take that up at that time. But as of now, then

20

this has been deleted.

21 MR. R. HARRIS:

22

The only other suggestion I'd like to make, Mr. Chair-

23

man, is that the appointment with respect to Judges of

24

the Superior Court and for how long they are appointed be

25

changed to conform to the language which was chosen for

j

_-.-I

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i
.2 I MR. THOMPSON:

.3 II

I second that motion.

,i
4 II MR. OVERBY:

PAGE 4a

SI

Is that for the eight-year term?

I

6 !!I MR. R.HARRlS:

i:

7 Ii

No. This is for the--following the general election

i[

8 II,i

in which a successor would be elected.

Ii

9 II MR. SNOW:

10

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All right. Those in favor say aye. (A chorus of ayes.] All right. That language shall be in conformity then. Have you got that, Marty? HODGKINS:

14 >-
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[Indicating affirmative response.)

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15 ~DEAN COLE:

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16

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So we're looking at Paragraph 7, then it would read:

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17 '"ID

"All vacancies in the office of the Judge of the Superior

18

Court shall be filled by appointment by the Governor . "

19

and then everything else--then period, I guess, right?

20

And then "A person appointed " okay.

21 MR. R. HARRIS:

22

I Or you could make it--just copy the same language out

23

of Paragraph 3, Section 2, either way Marty wants to do it.

24 MR. SNOW:

25

All right. Let's go back to the first page, then, and

PAGE 49 -- - --- ------------------------l
I Are there any comments on Paragraph

2

41 There have been no further suggestions made since our I

3

last meeting.

4 MR. STUBBS:

5

May I ask a question, Mr. Chairman? At the bottom of

6

the page, and continuing onto the top of the next page,

7

"in all cases where the Supreme Court has prescribed by

8

rule that it shall have jurisdiction . " are we limiting--

9

does that mean only those cases which are already in the

10
11 ".z.. cr: .l0.L.
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Court of Appeals that it may bring up or does it relate to a matter that--for example, considered by the Judicial Council's Committee, a situation where a trial judge refuses to act for some reason or other and leaves a case in limbo and we had thrown in in one of the committees there a proposal that the Supreme Court have power to issue such writs and take such other action as may be necessary to prevent a failure of justice.

II'S MR. R. HARRIS:

19

Now, what this is intended to mean is that the Supreme

20

Court can issue a rule and say that until further notice,

21

the Supreme Court shall have original jurisdiction to hear

22

appeals in divorce and alimony cases.

23 24

J' R. STUBBS: I Could it also issue a rule saying that in any case

25

when a trial court refuses to rule after x number of days

r

-al-i~i~.nt ~~;.~: ::~:n - ---_._-----.----- -

.. ~._._-----

---~--_._-_._---_.

-.-

PAGE 50

file with the Supreme Court

to

2 Ii

bring the matter to the jurisdiction of the Supreme Court?

.3 ':HR. R. HARRIS:

4

ii
I.

I don't see why with that language, the Supreme Court

I

5 II

wouldn't have b:oad enough power to issue whatever rules

I'I,

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it chose.

II
Ii MR. STUBBS:

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I But that would not be negated by the beginning line,

I,

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"shall have no original jurisdiction"? In fact, they don,J.
I

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It's not original. You're reviewing the inactivity of

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the trial judge.

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12 ~MR. SNOW:

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Well, I think you can also go back to Paragraph 2

14 >I-

where we've added the language "under the supervision of

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the Supreme Court." In a unified judicial system, they'd be able to move on that, Bob.

0z

17 ~MR. STUBBS:

18

Okay, I'm happy.

19 f>1R. SNOW:

20

That's my personal opinion, but I think they would.

21 MR. STUBBS:

22

I think they would too.

n DEAN PHILLIPS:

24

Bob, what about that next paragraph under which you're

2S

reading because you've got a clause there--

------------- ------ -------------------------

MR. STUBBS:

PAGE 51
------,
I I

2

Yeah, writ of prohibition.

\

3 DEAN PHILLIPS:

I

4

I No.--well, writ of prohibition as well as those hhat

5

are specifically named~' But you've got that broad languagl

6

"such other writs as may be necessary."

!

7 MR. STUBBS:

8

Well, I'm still worried, though, Ray, or was worried

9

I about "shall have no original jurisdiction." For exa.ple.

10

I we've had a number of cases in this State where the trial

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11 >-
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JUSi judge, for reasons best known to himself and his maker,
doesn't want to do anything. And we can in one unholy mess because there is presently no procedure or at least it has

14 .>..-

not been tested, to go direct to the Supreme Court for a

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writ of frustration or something like that to make the

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16 17

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trial SNOW:

court

do

something.

It; " I'

Are you satisfied?

MR. STUBBS:

20

Yes, sir.

21 MR. SNOW:

I

22

All right. Other comments on Paragraph 51

23 JUSTICE HILL:

I

24

Mr. Chairman, while I'm thinking about it, we've pro-J

25

vided forthe Governor to fill a vacan_~~~n t~_~up_reme

_

U-...-_ _

PAGE 52

Court and on the Superior Court but. in scanning this

2

thing real fast. I can't findrhen any vacancies on the

3

Court of Appeals will be filled.

4 MR. SNOW:

5

We took all of that and added i t together initially.

6 JUSTICE HILL:

7 I
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10
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18

May I direct myself to your inquiry on Paragraph 4. In the third lines, it provides ~in all cases imposing a sentence of death." We frequently have habeas corpus cases arising after a death sentence has been imposed in that same matter. Now, in order that heabeas corpus cases involving the death penalty would be treated the same way as the appeal from the imposition of the death penalty itself, I would recommend that that word "imposing" be changed to "in which a sentence of death" and then add, "has been imposed." And that would take care of both the conviction and sentence of death penalty and the habeas corpus involving that same death penalty.

19 MR. DROLET:

20

So move.

21 MR. STUBBS:

22

with his usual clarity, Justice Hill has broadened

23

the jurisdiction of the Supreme Court.

MR. SNOW:

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I

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';5

______~ ... in

all

cases

in

which

a

sentence

of death is im- i ------~-----~

PAGE 53

posed." Any objection to that?

2 MR. DROLET:

3

So move.

I'

I

4 II MR. SNOW:

I

I

5

" .. has been imposed. "

I
I

6 DEAN COLE:

I

I

7

We're talking there about direct--the language doesn',

8

really read that way.

9 JUSTICE HILL:

10

I This language would make it capable of interpretation I

zCJ 11 ~
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impos~d that habeas corpus in which a death penalty has been

12 ~

would be within the jurisdiction of the Supreme Court.

@ r iom COLE;

14 .~ ~.. %
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Well, what I was th~--as.I read the language, it doesn't necessarily mean a lawyer couldn't appeal to the Court of Appeals unless we cover that elsewhere I t only says the Supreme Court has appellate jurisdiction but you

18

can appeal twice, can't you?

19 JUSTICE HILL:

20

Well, I think this language here that says the

21

Court of Appeals has jurisdiction--what?

22 MR. R. HARRIS:

23

" in all cases except those in which jurisdiction

M

has been conferred."

25 DEAN COLE:

PAGE 54

Th'!t's right. 2 MR. SNOW:

3

Any further comments on Para9raph 4?

HILL:

In the second page, the second full paragraph, do you

want to say: "The Court of Appeals shall exercise general

appellate jurisdiction in all cases arising from the

H i!

Superior Court or a State Court of Claims"? I notice that

I'

9 II

down with respect to the State Court of Claims there was

10

some open question. It occurs to me t~at that additional

II ".z.. '..0"....

language here might resolve that problem that you had with

(@8)r12 .'u.".

respect to the Court of Claims provision.

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SNOW:

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Well, as we--y~u know we've never implemented the Court of Claims as such . That's what I mentioned a minute ago when we were talking about "as may be provided by law," that I know we did pass that constitutional amendment for

18

the Court of Claims several years ago and we have never set

19

up anything on it.

W MR. R. HARRIS:

21

I'm pretty dense. I don't really understand what Jus-

22

tice Hill's comment was on that Court of Claims situation.

23 JUSTICE HILL:

24

The Court of Claims provision on page, beginning on

25

page five but up on page six, has a se n te nee under ~ iIl~__~_~j

PAGE 55

in parentheses which I understood to mean that it was stil

2

under consideration or for possible alternative or some-

3I

thing of that type, which said that: ."The General Assembl

I'

4 '1

shall provide by law for appeals from a judgment of the

5

Court of Claims " It also said then with respect to jur

6

trials. Now, in the Supreme Court jurisdiction, it is

7

stated that the Supreme Court "shall exercise appellate

8

jurisdiction of appeals from the Superior Court in all

9

cases . " There is no reference to either the Superior

10
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11 ~
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Court or to the Court of Claims with respect to the

appellate jurisdiction of the Court of Appeals. And I was

simply observing that perhaps it would make unnec-ssary

the language that, on page whatever-it-was--six, if on

I

"Th~ page two, the second full paragraph, it were to read:

Court of Appeals shall exercise general appellate jUriSdic~
!
tion in all cases arising from the Superior Court or State I

Court of Claims except those in which . " and so on.

I
I

18 MR. STUBBS:

19

Why put anything in it and strike the last sentence

20

in section 4. That was the legislature couldn't then

21

amend the Constitution by statute.

22 JUSTICE HILL:

!

I

23

That might accomplish the same situation.

24 MR. STUBBS:

I

25

I Because one of the proposals, as you know, does not

-----~

PAGE S6

create a separate court but rather just has this has this

2

as an element of the jurisdiction of the Superior Court--

3

one of the legislative proposals. And it may well be that

4

no Court of Claims as such is created. And the whole

5

theory of this is that we have a unitary trial system in

6

any event.

,
I

jMR. SNOW:

SI

Is there a motion then to strike the parentheses

I

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!

language on page six under the Court of Claims?

10 MR. STUBBS:

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Certainly, I would make that motion, Mr. Chairman, as to the appeals portiqn. Well, you can strike it all because the legislature's authorized elsewhere to provide

14 ~ !;;

for the trials. I would move to strike.

:<r
15 "MR. SNOW:

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16 ~;::

Those in favor of striking, say aye. [A chorus of

Z

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17 ~

aye s . ) Those opposed? [No response.} Okay. It's struck.

18

All right. Anything further on Paragraph 4?

19 DEAN COLE:

20

Mr. Chairman, I'm still confused about my previous

21

point. The--it says: "The Court of Appeals shall exer-

22

cise general appellate jurisdiction in all cases except

I

23

those in which jurisdiction has been conferred by this con-I

24

stitution upon the Supreme Court . " The paragraph above 1

~_ s~ ~ the~owe 25 __ _ tha say __" The S up reme _c_o ur_t_s hal h a_ve

r to isje

--------------------
writs of habeas corpus . "

PAGE 57
--------------:
It's not an intention to take

2

all habeas to the Supreme Court, is it--only the death

3

penalty cases? It seems to me unless there, in jurisdic-

4

tion, is a difference between, you know, appellate juris-

5i

diction and general and, you know, oriq--not original

6
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appellate--what's the word, Bob? You know, exclusive
appellate jurisdiction, I guess is what I'm saying. And I
the way this reads to me, it could be construed to say that the Court of Appeals has appellate jurisdiction in all
I
cases except habeas corpus, for example, and I don't think I
we intend that. When we're talking about appellate juris- I diction, again, many systems would have an appeal to the appellate court and then appeal to the Supreme Court where you say the Supreme Court has appellate jurisdiction. But that doesn't mean that the appellate court doesn't have jurisdiction also. And it seems to me we have to clean up the language so we mean what we say or we say what we mean and that 1s that in those areas in that first paragraph

19

where the Supreme Court has exclusive appellate jurisdic-

20

tion, the appellate court has none. But in an area like

21

habeas corpus, we're not intending because the Supreme

22

Court can issue them that the appellate court can't.

23 MR. STUBBS:

24

No. But aren't we talking about a writ of habeas

25

corpus here as remedial rather than as an action that was

,.. f:t PAGE 58 ..~: i-:i~ te d- ~Y'~:f~n~~-nto<-p~-::tion e~Whe;: th:-COu: t,

2

example, in a testimony case or to remove him from deten- I

3

tion in another circuit. It's a sort of a--supplementary !

4

to the authority of the court rather than the original

5

action brought by a prisoner himself.

(1 DEAN COLE:

7

Reading the last phrase to qualify that?

8 MR. STUBBS:

9

Yes. To relate it strictly to the proper exercise of

10
..,

the Supreme Court's jurisdiction

11

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DEAN

COLE:

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SNOW:

I

think if it's read that way,

it would be okay.

14 .>..-

Okay. Joe?

'<x"l

15 ~ MR. DROLET:

16

".'~".. .z..

Wayne, I think that could be clarified if--there arp.

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17 ''""

two paragraphs that are different. The first full para-

18

graph on that page with regard to the Supreme Court's

19

power to exercise its jurisdiction and then two paragraphs

20

down is the corresponding paragraph in regard to the Court

21

of Appeals and they read differently. I think if they

22

read the same, probably the better language being the one I

23
24

"J under the Court of Appeals--"issue all writs as may be

II

necessary to the proper exercise of its jurisdiction ...

25

If the one under the Supreme Court read the same way, I

--------------

PAGE 59
r r - - - - . - - - - - - . - .~..... - - - - - - - - - - - - . - - - . - - . - - --.- ----..- - - - . - - - --..- - - - - - - -.. - - - - - - - - - - . - . - - - . - - - . -
think it would clarify that.

2 DEAN COLE:

3

I think--I agree with that.

4 MR. STUBBS:

5

Make that motion.

6 MR. DROLET:

7

I so move.

8 MR. STUBBS:

9

I second it.

10 MR. HODGKINS:

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11 ....
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Can we just say Supreme DROLET:
Yes. Combine them into

Court and Court of Appeals? one~-"shall have authority to

! 14 .......

issue all writs as may be necessary to the proper exercise

%

15 ~

of its jurisdiction .. "

"ll<
:>

16 I~D MR. SNOW:

oz

17 ~

Okay.

18 IJUDGE SMITH:

I

19

All right. Let me throw in a question there. What

I

20

direction areyou going to have about the way you're going i

21

to send injunctions, quo warranto and mandamus? Which one I

i

22

of the courts is going to take--you have no directions as

I

23

to where it's going to go?

I

24 MR. STUBBS:

I

25

_

_I

_th_in_k,_J_ud_ge_,

_th_is_i_s

_in_--w_h_er_e

_yo_ur

_c_ou_rt_h_as

_a_l-.

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~------::a~-y-got a
case.
I 2 JUDGE SMI'rH:

PAGE 60

31

Oh, you're talking about in order to enforce sornethi

4

that we want done? Not from the outside?

5 MR. STUBBS:

Righ t. That's correct.

7 MR. DROLET:

8

In other words, make it like the--combine it so the

9

whole things reads like the Court of Appeals paragraph.

10

~ou can issue whatever writs are necessary to--

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11 ~ JUDGE SMI'l'U:

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I wanted to be sure I understood what you meant by that.

14 .>..- BEAN COLE:

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Would it help to clarify it by taking that first full paragraph on that page and making it the last paragraph in

Z <l:
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that section or that paragraph?

18 MR. DROLET:

19

That might be a little better place for it.

20 JUSTICE HILL:

21

Referring to Paragraph 4, the first paragraph we're

22

talking about Supreme Court jurisdiction. The second para-!

I

23

graph we're talking about the Court of Appeals jurisdic-

24

tion. The third would be certified questions. The fourth

25

would say the two courts have power to is sue wri ts to en-.J

force their jurisdiction.

PAGE 61
-I I I

2 MR. SNOW:

I Okay. We remove, then, the second and third para-
I'

4I

graphs, page two.

5 MR. R. HARRIS I

6

Second and fourth. And move them down to where they

7

would be the last. Combine them and put them where they'r

8

last.

9 IJUDGE SMITH:

10
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16 .~. MR.
oz 17 ~

You're going to combine paragraphs two and four and they're going to say the Supreme Court and the Court of Appeals shall hav~ the power to issue all writs that may be necessary for the proper exercise of its jurisdiction? DROLET:
Right R. HARRIS:
Of their respective jurisdictions.

18 MR. SNOW:

19

All right. Are there any comm~nts on that or any

20

objections to it? Have you got that, Marty?

21 MR. HODGKINS:

22

[Indicating affirmative response.]

23 R. SNOW:

i

24

I Okay. Any further comments on the paragraph? Goiny I

I

25

to Paragraph 5.

i _ _ _ _ _ _- - 1

PAGE 62

MR. STUBBS:

2

Why do we need that, Mr. Chairman?

3 ii MR. SNOW:

Ii

4 11 !

I think we commented on that before, that it would

I

I'

5 Ii

still be good to have it in the Constitution just to make I

() 11

sure that they did dispose of it.

:1

II 7 JUDGE SMI'l'H:

8 II

No'~, what do you mean by "dispose"?

I
we'v~ Do you mean

II
9 I,
II

got to have the opinion written and out by the term in

I
~

10
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which it is filed or hear it?

z

II ~ MR. SNOW:

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12 ~
@r~

No. It means that you're going to have to do something on that case, doesn't it?

14 ~ JUSTI CE HILL:

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Mr. Chairman, the language is difficult for us for

'";;) 16 .~..
Q

this reason . We presently, although if this were adopted

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17 g

we'd have to do some adjustin9~-we're dealing with seman-

18

tics--we presently can consider that a case in entered on

19

our docket the day the record is received. And we can

20

have the record received the last day of the term. Now,

21

this language, then, would mean that that case would have

22

to be decided that day. And that's the reason the present

23

Constitution has "or at the next term." Now, if this

24

language were to be adopted, we'd have to hold things

which were received and not docket them until we would be --~

PAGE 63 -----------------------.,
them into the next term and I think that be-

comes some kind of gamesmanship which I would prefer to

3

avoid.

i

I

4 I MR. R. HARRIS:

I

sI

I thought our original discussion on this left it

i

6i

basically left it at the term at which docketed or the

7

next term. I thought we had done that.

8 MR. SNOW:

9

" Or at the next term." Let'. put "or at the next

10

term." Dean?

CzI

11 ~ DEAN PATTERSON:

o

I>-

9- ~JUSTICE 12 ~
~~

Is this a little too restrictive?
HILL,

14 )~-1 :r

It's presently in the Constitution and we're living

15 ~

with it. I don't object to it.

CI

'::">
16 ~III JUDGE SMITH:

0z:1

<l
17 ~

Don'.t make it anymore liberal, but we need what

,.','ve got.

19 MR. SNOW:

20

If we didn't have anything in there, we could get a

21

lazy court up there sometimes.

22 JUDGE SMITH:

23

Well, it would tend to make you lazy. Let's keep

24

what we've got.

25 JUSTICE HILL:

_ . ._JI

PAGE 64

The hard questions would tend to be postponed until

2

last or we just wouldn't docket it and that's just subter-

3 III,

fuge.

il

'I4

SNOW:

MR.

5 II

All right.

Ii

Iib

DEAN PATTERSO~:

Let's keep that.

7

Okay.

II

R II MR. R. HARRIS:

I'll go along with the Judges on this one.

<j
II

It reads "or at the next term" in the present Consti-

10

tution.

"z
11 ~ MR.
.o.....
~ 12 ~
~r~MR' 14 .~.. ~ :t:
15 .)MS.
":'>" 16 .~..
o
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17 ~

SNOW: " . or at the next term." We'll add that language.
SNOW: All right. How about Paragraph 61
MORAN: Mr. Chairman, I think I would suggest just for the
sake of organization and consistency that the Court of

18

Appeals paragraph really ought to come under--come next

19

after Paragraph 1 or Paragraph 2. Because in Paragraph 3

20

they talk about both courts and, as it is now, you have to

21

godown to Paragraph 6 to see details of what--

22 MR. R. HARRIS:

23

I think that's a very good point.

24 MR. SNOW:

25

Okay. Well, let's shift it.

MR. OVERBY:

PAGE 65
- - - ------ --- --------.--- - - ----__------------_---1 ,
!

2

Where would you transfer Paragraph 61

.3 MR. R. HARRIS:

4

Make it new Paragraph 3.

5 MS. MORAN:

6

New Paragraph 3.

I

i

7 JUSTICE HILL:

I

8

I For symmetry, would you just want to make Paragraph 2

9

a part of Paragraph 1. Eliminate paragraph number two and

10

make this paragraph number two.

"z

11 ~ MS. MORAN:

o......

@ r12 .u'.". tZ ~ MR. u v>

That DROLET:

would

be

fine.

14 >tv:z>:

That's even better.

15 o!) MS. MORAN:

CI

'":::>

16 .~..

So present Paragraph 2 becomes part of Paragraph 1

oz

17 ~

and Paragraph 6 will become Paragraph 2.

18 MR. SNOW:

19

Paragraph 6 then becomes Paragraph 2. Is there any

20

objection to that? Present Paragraph 2 becomes a part of

21

Paragraph 1.

22 DEAN COLE:

i

23

Mr. Chairman, I'm confused on a previous discussion.

I

24

We put a Paragraph 3 in Section 1 which applies to all

I

25

courts? Is that how we resolved that?

_ _ - - - - - - - - - - - - - - - - - - - -.

.-

I
_ --.Ji

PAGE 66

No, we voted that one down.

I'

l Ii

So we do not have any--let's see, we did cover the

5 I!

provision for vacancies, didn't we?

() \1 MR. SNOW:
I:

7 i)
[I

Yes.

I'II
~ IIiI DEAN COLE:

y

'!I:
II

Aud--but how about this disqualification?

Has that

10

been covered for the appellate court or did we leave that

II "..z...
0......

general, dowll to its rUles of practice and so forth?

@;12 ~'" MR. ~ >.z.=. U

SNOW:

NO,

we--have

we

got

that

clear?

'"I 14 >- DEAN PATTERSON:
l-
..:I:

Dean?

15 .:>

Would you want to change the italicized portion of

"a:
:>

16

CD
.Z..

Paragraph 1 and make it conform with what is now Paragraph

z0
17 'a"l

2? You have "Court of Appeals." Just have Paragraph 1

18

say "Supreme Court"? Do you see what I mean?

19 MR. STUBBS:

W

You mean in the title?

21 DEAN PATTERSON:

22

In the title, yes.

23 MR. SNOW:

24

Uh-huh. The "Supreme Court" and mark out "Justices"

25

and "Quorum"?

PAGE 67

- - - - , - - - - - - - - - , -------------------- --------------

I

DEAN PATTERSON:

I

I

2

Yeah. Because then that would--see, your title to

I

3

Paragraph 2 is automatically knocked out when you add thatl

I

4

Paragraph 1.

I

5 MS. MORAN:

II

6

Do we need--also need a sentence relating to situati01s

I,

7

in which a Judge of the Court of Appaals is disqualified?

8

Is that a problem?

9 MR. R. HARRIS:

10

[Indicating negative response.}

"z

11 ~ MR. SNOW:

..o....

~ 12 ~

All right.

~ ~ , , - OEA' COLE,

Any further comments?

! 14 .~..

I'm still confused about the last question.

x<l

15 ~MS. MORAN:

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16 ~
j;

It turns out to be not a question.

Z

<l

17 ::'iDEAN COLE:

Are we--

18

Are we going to leave it the appellate court can make

19

any rules they want when a Judge is disqualified?

20 MR. R. HARRIS:

21

Well, the Court of Appeals--there's no provision now

22

for the replacement, as I understanti it, of a Court of

23

Appeals Judge who's disqualified. You sit in three panels

24

and they just take one from the other panel.

2S JUDGE SMITH:

---------"---~

------------------- -------

PAGE 68
--------------- ------- - ------------------- --1

And the only time that you're concerned about is when!

2

fOUr!
we have an equal division on the court where it's only

3

and four. We had that to happen recently where it was

j

4

four and four. But the difference is, it says that if a

5

vacancy occurs or a disqualification--there's a difference

6

between the two. If there's a vacancy, it automatically

7

goes to the Supreme Court because it's four and four. But

8

if there's a disqualification, then we appoint somebody to

9

take the place.

to DEAN COLE:

Czl

.11 l'o"

You do now'l

12 ~ JUDGE SMITH:

@F~

Yeah.

14 >- DEAN COLE: :l:-;

:E

15 ~

I see.

"'~" 16 ~... MR. SNOW:

Q

Z

17 g~

All right.

No further questions.

We go to Section 3,

18

Superior Courts, Paragraph 1, Paragraph 2, Paragraph 3--

19 MR. OLSEN:

20

Mr. Chairman, Paragraph 1. You provide--that last

21

sentence still bothers me. You've got in here the provi-

sion that you could create a Court of Claims that could be

23

separate. And then you have in Superior Courts, that last

PAGE 69

MR. R. HARRIS:

2

Well, when we got to the Court of Claims, I was going

3 I,

to suggest that we alter that language to say that the

I

4I

General Assembly may create within the Superior Courts a--

5 MR. OLSEN:

6

Within the Superior Courts jurisdiction in herft?

7

Okay.

8 MR. R. HARRIS:

9

That's what I had in mind to do.

10 MR. OLSEN:

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11 ~
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0-
12 ~
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I'm still wondering if that's something that could be held to prohibit the Magistrates from hearing and determining traffic casesas a trial court.

. 14 .>~,.MR R. HARRIS:

<l :J:

15 0)

You mean just leave out the sentence?

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16 l~D MR. OLSEN:

Q
z

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17 ~

Yes, sir.

18 MR. R. HARRIS:

19

Weil, if you leave it out then the legislature's

20

going to be able to ereate new trial courts.

21 MR. OLSEN:

22

Could you say the Superior Court shall have exclusive,

23

original--original and exclusive jurisdiction in all cases?

24 MR. SNOW:

25

Your Magistrates are going to be part of the Superior I

--- ----------

--

-.J

PAGE 70

court. "Each Superior Court circuit shall have the number

of Magistrates as provided by law.

3

"Magistrates shall perform such duties as may be

4

assigned by the Chief Judge of the circuit and by law."

5

So they're really a part of the Superior Court. Your

6

Municipal Courts would be a--the Magistrates of those

7

courts would oontinue in their present function until

they're changed as it may be provided by law.

9 MR. R. HARRIS:

10

I don't see--except with respect to the Court of

"z

11 ato-:

Claims, I don't see any problem.

err'...o l>. 12 ao:

OLSBN: Okay.

14 ~MR.
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15 .:l
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16 .~.. o Z <l
17 ~

SNOW: ! think we've got to have that one sentence in there
if we don't, we'll be creating, just like we have every
session, another Small Claims Court or--all with different

18

jurisdictions.

19

Okay. Anything on Paragraph 21 Paragraph 3--now, I'm

20

going through these things only if I have some motations

21

marked by them, so anytime that we come to some that you

22

have a question on, then--

23 UDGE SMITH:

24

Well, in Paragraph 3 you've got another red flag

25

----------------------------- ----------- -------- ---. ------ -

PAGE 71
-------------,

seriously, is going to agree with the suprame Court certi-I

2

fying the necessity of cha~9ing the Superior Court Judges

3 I,

in the judicial circuit. I just wanted to call your

I'

4I

attention to that other flag you're going to have waving.

5

You also get the Supreme Court involved--you're talking

about getting the courts out of politics, if that doesn't

7

get you in politics, there ain't no way. Just a comment,

8

that's all.

9 II MR. R. HARRIS:

10
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11 l-
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~
12 ~
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If we're going to have a unified judicial system under the aegis of the supreme Court, then I think the Supreme Court's got to have at least some restraining power over the General Assembly in the willy-nilly addi-

14 I.>.--. z

tion of Superior court Judges. Of course they don't do it

15 ,:)

willy-nilly now, but--

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;;)

16 I~II MR. SNOW:

az

17 :

I think we do it much better than what we have done

18

it in the past, but still I think we are prone to get the

19

element of too much local political pressure sometimes.

20 MR. R. HARRIS:

21

I think this follows the--to me, it follows the con-

22

cept of a separate but equal branch of government.

23 JUDGE SMITH:

24

But since when do you think it ain't going to put

25

pressure on the Judges of the Supreme Court? It's just

i

___________________________..-J

PAGE 72

going to shift it.

2 IIMR. R. HARRIS:

3I

I' ve never been able to talk to them.

\1

4 II

you could do that.

I didn't know

!JUDGE SMITH:

6

Yeah, but they haven't ever been before where a

I

7 II

judge's appointment depended on their recommendation.

II

8 !,I

That overcomes a lot of timidity.

i:

IIMR. l)

STUBBS:

10
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11 ~
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12 ~
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Well, as a practical matter, though, I think, Judge, right now that the administrative office of the court and the Judicial Council make the recommendation to the Governot, not to the General Assembly. And the Governor has pretty much followed that recommendation and I think has varied from it only casually. And he will not approve an additional judge or circuit--I don't know-SNOW:

18

The only time we've varied from it lately has been

19

lack of funds.

20 MR. s'rUBBS:

21

Well, he's been lucky. He hasn't money. He could

say that. But I think you could still use the same princi-

pIe even if the money were available--if it has not been

24

recommended by the Judicial Council.

25 UDGE SMITH:

PAGE 73

Let's don't kid ourselves. They recommend who he

2

wants and if I were he, I'd be in the same shape. I'd see

3

to it the man got recommended I wanted to put on there.

4

And this is going to happen to the Supreme Court.

5

STUBBS:

6

No, no. We're not talking about the individual.

7

It's whether or not to add additional judges to that cir-

8

cuit.

II 9 JUDGE SflITH:

10

Same situation, really.

"z

11 :;; MR. STUBBS:
..o.....

12 ~
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I think what this is is just putting into effect, as Robin described it, that the Supreme Court is the head of

14 .>..~ %
15 .:>
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16 ~
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17 ~

the Judiciary and that the General ~ssembly and the Supremo Court shall be partners in this decision. Actually the Governor's implicitly a part of it, too because he would have to approve or veto.

IX HR. SNOW:

19

The question's been raised. Let's vote on whether to I

I

20

keep certification of necessity in the Supreme Crurt. ThoJe

I

I

21

of you who would favor doing that will raise your right

iI

22

hands. (A show of hands.) SE:ven. Those opposed? (A

23

show of hands.] It stay in there. Marty called my atten-

24

tion to Paragraph 5 on page two up there "Cases; How Dis-

25

posed of." In trying to keep som~ clarity of language, he

_ _ _--l

PAGE 74 r---

suggest:; that we have it just "Disposal of Cases" period,
I

2 II

rather than "Cases; How Disposed Of." Any objections to

3 II

that?

I!II

4 \1 MR. R. HARRIS: il

II

5 :1

I give you total literary license to make those kind

Ii

() II

of changes, Mr. Chairman.

7 II MR. SNOW:

g ii Ii

All right.

Ii

Ii9 MR. R. HARRIS:

Paragraph 4, Term of Office.

10

On the third line down, holding office, that "of"

(~\

11 I-
.'oa."... 12 ~MR.

~r ~

should be "on~ " HODGKINS'
That'. been brnught

to my attention.

14 .~.. MR. SNOW:

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15 ~

Any other comments on Paragraph 41

":'"J

16 C~D JUDGE SMITH:

oz

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17 ~

Did we say something about changing that from six to

If!

eight years for Superior Court Judges?

19 MR. R. HARRIS:

20

No, four.

21 JUDGE SMITH:

I
22

I Well, I know it's presently four but I thought someone!

i

23

brought up the subject of changing it to eight years.

24 MR. SNOW:

25

We may have discussed it.

I

I But we discussed keeping--

____.

._........J

PAGE 75

__. - - - - - -.. ~~~~. _._~._.

-~----I

or not increasing the Superior Courts more than six years. i

,

2

All right. Now, in Paragraph 5, you see that that ha1

3

been marked through and we did that because we were won- I

I

4

dering if it were necessary.

I

i

5 MR. THOMPSON:

6

I noticed that you wiped that out but back on over

7

further, you were talking about Magistrates a moment ago

8

and the Magistrate would have the duty as prescribed by

9

the Chief Judge of the circuit.

10 MR. SNOW:

"z
@;;.. 11 ~ 'o."..

The reason, though, we marked it out, Albert, is because we set up in our retirement system--and in our present general law--we have got provisions and we name the

14 .~~.. :z:

Chief Judge in the that. And we've already got it estab-

15 ~

lished that there is a Chief Judge.

":':">

16 I~D MR. THOMPSON:

oz

17 ~

I didn't know that. How does that work? And I'm not

18

being funny. Because we've got a situation with three

19

Judges down there and there's no Chief. Nobody's deciding

20

anything.

21 MR. SNOW:

22

We provide in there--Terry, do you want to explain howl

I

23

that works in there? We had different references at one I

24

time to Senior Judges and Chief Judges and than we clari- I

i

25

fied it in the--in the last Retirement Bill we had that

_ _ _ - - - - - - _ . _ - - - - - _.._-~.. _-_._--- - - - - - - .~-_.

_~-~

.._.

PAGE 76
-- ~---------- ------ ----------------- ------ -- ---------,
they would all be known as Chief Judges; is that correct?
2 MR. MCKENZIE:

That's right.

MR. THOMPSON:

Maybe we ought to call them something else because T

think you need--in a multi-judge circuit, you need some-

body down there who can--I wasn't at the last meeting and

I have to apologize for that--I think you need somebody

who can call the shots.

10 MR. SNOW:

lz?
11 I-
.'o"..
~;!MR'

Terry, will you-MCKENZIE:
That's provided for by general law now.

14 ~ MR. STUBBS:

'"
%

IS .:>
l?
:'>"

But it's not in the Constitution.

16 .~. MR. MCKENZIE:

oz

17 g

It's not in the Constitution.

What you originally

18

had--everytime when they added more than one judge to a

19

circuit, the bill adding that judge would provide for a--

20

either a Senior Judge or a Chief Judge. Well, when we

21

created the new Superior Court Judges Retirement System,

22

I we called what had been Judges Emeritus and what were re-

23

tired Judges under the new system, Senior Judges. And

I

24

since some of the Judges.under the local bills had beenJI

25

called Senior Judges, we changed the name of all of them t

Chief Judge, provided that ~he

person

PAGE 77
---------- ----- ---- ----~
I
senior in service

2

in each circuit would be the Chief JUdge.

3 MR. R. HARRIS:

4

I'm not sure that's so good.

5 MR. STUBBS:

6

Except it doesn't work that way ~ecau~e you've got--

7

still got a lot of local bills where local circuits--

MCKENZIE:

You had a general bill-later in point of time.

10 MR.
Czl II l-
Io..I....:
12 ~
@Jr~

STUBBS: But the--Robin's and my circuit, for example, igno~es
that. The Senior Judge sometimes is th~ administrative judge. Some-~I mean the Chief Judge. In Fulton County,

14 I.>.--. 0( :I:
15 ol>
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16 ~... Q Z 0(
17 :

for example, he's about the fifth or sixth in seniority. Judge Dean is senior in our circuit yet Clarence Peeler is the Chief Judge. In Fulton, I believe JUdge Shaw is the senior one "in service and Sam McKenzie is--but they've

IH

both got a specific statute that they're following, ignor-

19

lng the general statute unless the general statute made

20

exception for it. But I think Mr. Thompson's point is that

21

we're assigning duties to a Chief Judge under the Consti-

22

tution and there's no such animal under the Constitution.

23

It's the same issue that we were raising with the Nominat-

24

ing Commission.

25 MR. SNOW:
lL-

------

PAGE 78

All right.

2 DEAN PATTERSON:

.\

Let me make sure I understand the situation now . Is

4

it a fact that we have Chief Judges in the various cir-

5

cuits?

6 MR. THOMPSON:

7

Not effectively.

8 MR. R. HARRIS:

9

You are supposed to have.

10 DEAN PATTERSON:

"z
\l ,-
@ ..'o"....
~r~M12Ri .

All right. Could you si~ply solve this problem by designating duties of a Chief Judge in the Constitution? R. HARRIS:

! 14 ...... :r

Mr. Chairman, I thought we had--I don't recall voting

15 ~

Paragraph 5 out. I thought we voted it in.

":'>"

16 I~II MR. SNOW:

Q

Z

17 ~

Well, we did. Until--your Chairman had a little

18

meeting and we discussed this from the standpoint that we

19

already had general law covering it. If it was already in

20

the law, why put it in the Constitution?

21 MR. R. HARRIS:

22

To cover Albert Thompson's situation. To cover the

23

situation in DeKalb. To cover the situation in Fulton,

24

none of which follow the general law.

I

25 UDGE SMITH:

J

PAGE 79
0::-1 ------- ---K:~-:-~-u-~~-~':-:-i-n-:i. the Co.sti tUtio.- "-=-k~--th~~

2

ply more than--

3 ,I MR. R. HARRIS:

I I

4

Because this says that if they don't elect a Chief

I

5
I

Judge within sixty days, the Supreme Court shall designate

6

one.

7 MR. STUBBS:

8

Which is certainly consistent with the designation

9

of the Supreme Court as the supervisory authority for the

10

administration.

"z
11 ~ DEAN PATTERSON:

..o....

~ 12 ~

The constitutional provision would override general

9"-~ law.

14 >-MR. R. HARRIS:

~

'"

%

.. 15 011 "

Judges are prone to ignore statutory law.

:J

16 .~..

them will not ignore constitutional provision .

Q

Z

17 :MR. SNOW:

Most of

18

Now, in our Retirement Bill it provides that the

19

Senior Judge shall be the Chief Judge.

20 MR. MCKENZIE:

21

The one senior in service.

22 MR. SNOW:

23

Senior in service.

M R. MCKENZIE:

25

No, too, you've got to remember, too, that since then

.

--.--J

PAGE 80

you've also created the district administrative judges.

2

And one of the districts if Fulton County. So--

3 HR. SNOW:

4

The reason it was marked out is that we wanted to

5

discuss that here today.

6 MR. OVERBY:

7

Mr. Chairman, I raised the point at the time when we

8

had this--when we were adopting this, why we--like we have

9

two in Gainesville and in the Northeastern Circuit, each

10

one could vote for themselves and you'd never resolve it.

11 "~z

This is why I think the language--

.o..

@ -- ~12 ~MR. R. HARRIS: What about the Supreme Court being put iu there?

14 .I>.-. MR. SNOW:

<l

:r

15 ~

Well, is there any objection to leaving it in?

"r:r:
::>

16 3MR. OVERBY:

oz
<l
17 ~

I move it be left in.

18 MS. MORAN:

19

Second.

20 MR. SNOW:

21

All right. Let's go on to Paragraph 6.

22 MR. OLSEN:

23

You've created the Judicial Council and not specified

24

anything abo~t it.

25 MR. BEXLEY: -------- -----

PAGE 81 -----.---- _._---- _----------------l
What about this Judicial Council? How did that come I

2

to play in all of this?

3 MR. SNOW:

4

Well, wait a minute. What have we done here now?

5 MR. BEXLEY:

6

Paragraph 5 mentions it.

7 MR. R. HARRIS:

8

" as may be prescribed by law, provided that the

9

General Assembly may delegate this authority to the Judi-

10

cial Council," which is fine.

IzII
11 ~MR. SNOW:

..o....

@ ..-12: ~

" as may be prescribed by law." may be prescribed by la.....

Let's just say qas

14 ..>....-JUDGE SMITH:

%

15 ~

Leave that last sentence out?

"cr:
~

16 C~D MR. SNOW:

oz

17 :

Uh-huh.

18 JUDGE SMITH:

19

Last line, excuse me.

20 MR. SNOW:

21

We don't want to create anything in the Constitution

22

we don't have to. All right. How about Paragraph 6? For

23

the record, let me say there's no objection to deleting

24

the last line of Paragraph 51

25 MR. R. HARRIS:

_ - - - . - - - -_ ...

- - _ . .._~._---------_.

- -....

Yeah, I have an objection.

PAGE 82

2 MR. SNOW:

3

One objection. Paragraph 6--

4 MR. R. HARRIS:

5

I think it ought to say "provided that the General

Assembly may delegate this authority as may be provided

by law."

8 JUDGE SMITH:

9

Well, would that provided--

10 MR. R. HARRIS:

Czl 11 t-
9 ; ;...otl< 0.

No. No, I think not. Because you're vesting it in the Chief Judge and you're saying he shall perform such duties as may be prescribed by law--he shall. You're not

l 14 ...

giving the authority to the General Assembly to vest it in

'"

:I:

15 ~

something else like a Judicial Council.

Cl

II:

:>

16 ~.. MR SNOW:

az



17 ~

" as may be"--

18 MR. R. HARRIS:

19

And all I'm saying--"provided the General Assembly may

20

delegate this"--"provided that the General ASsembly may

21

delegate this authority", period.

22 UDGE SMITH:

23

Don't you imagine the Chief Judge is going to scream

24

like a shot pig if they start to try to delegate that to

25

the Juditial Council?

._----------_._-_.__.. _-_.-

MR. BEXLEY:

PAGE 83
- - - - - - - - - - - - - - - - - - - ------~

2

There's no way that they're going to do that.

3 JUDGE SMITH:

4

The Chief Judge ain't going to stand for that.

5

You're just creating a monster there.

6 MR. BEXLEY:

7

You sure are.

8 MR. SNOW:

9

Okay. Those of you who prefer to have it "as may be

10
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prescribed by law," will raise your right hand. [A show of hands.l Those opposed. [A show of hands.l All right. That's six to t:wo.
Paragraph 6.

14 .~.. MR. OLSEN:

<I(

:J:

15 0)

Wayne, Is it--in Paragraph 6, the language there is

"or:

;:)

16 ~ zo1M

different from the election language in the Supreme Court

...:

17 :::

and the Court of Appeals. I think the intention was to

18

conform the language. Well, okay, this one provides just

19

for non-partisan elections. The Supreme Court and Court

20

of Appeals will be elected at the same time as members of

21

the General Assembly. It doesn't state the--under Para-

22

graph 6, I think probably the General Assembly could pro-

23

vide for a July election of Judges or June election or

24

May.

25 DEAN PATTERSON:

I
._--~

---- -----

PAGE 84
---------------------------- ---------------i

What about the term? Is there a two-year or a four- i

2

year term?

3 I,MR. SNOW:

I

4I

All right.

We should have in there Hat the same time

5

as members of the General Assembly." Not in the same

6

manner, but at the same time.

7 MR. R. HARRIS:

8

Just let it read basically like the appellate courts.

9

SNOW:

10

Okay.

"z

II ~DEAN PATTERSON:

..o....

~ 12 ~

Now, the General Assembly is for only two years.

~-~R. SNOW:

! 14 ... '" :I: 15 ,!)
"'";:)
16 C~D MR. oz
17 :

But that would be the time of the election. The purpose of this is just to designate when. THOMPSON:
Somebody from the General Assembly is elected at every

18

general election.

19 DEAN PATTERSON:

20

Okay. That was the question I had because you have

21

six-year terms here.

22 R. R. HARRIS:

23

Wait just a minute.

24 R. THOMPSON:

25

The general election's every two years so--

. . - - - - - - - - - - - - - - - - - - - - ~ . _ - - - - -~- -----~
MR. R. HARRIS:

PAGE 85

2

No, hold it now. We may be trapping ourselves on

3

something here.

4 MR. SNOW:

5

Are you talking about our new amendment?

6 MR. THOMPSON:

7

The constitutional amendment?

8 MR. R. HARRIS:

9

Yes.

10 MR. THOMPSON:

~

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II ....
Iol<

It ain't going to pass.

"-

~ J1 JUSTICE HILL:

~r~
! 14 .......

You'd have an inconsistency here with a six-year at the same that members of the General Assembly--

:~r

15 ol) MR. R. HARRIS:

":'>"
16 ~...

Yes, you would.

Q

Z

~

17 :DEAN COLE:

term

11)

How about at the general election as provided by law?

19 MR. SNOW:

20

At the general election.

21 JUDGE SHITH:

22

"All Judges of the Superior Court shall be elected on

23

a nonpartisan basis at the general election"?

24 DEAN PATTERSON:

25

" . at a general election."

------.---.--------. ---- ----------------.-------- --------P-A--G-E---8-6-----1

MR. SNOW:
I

2

at u ...... the same time as the general election. h

i

3 MR. THOMPSON:

I

4 II

" . be elected in the general election." They're

II

5 II

part of the general election.

6 I DEAN PATTERSON:

7I

Wha t about saying "in a general election"?

8 HR. OLSEN:

q

You need to conform Paragraph 3.

10 JUDGE SMITH:

..z"
11 ...
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a~r'

SNOW,

What have we finally come up with, Mr. Chairman? "They shall be elected by the people-~"

14 .>..- JUDGE SMITH:

'"

:I:

..15 ~
";:)

"All Judges of the Superior Court--"

16 l~D MR. SNOW:

oz

17 :

--"at a general election."

18 JUDGE SMITH:

19

Where does that go?

20 MR. SNOW:

21

Well, it goes in Paragraph 3, for one, and it would

22

go also over here in Paragraph 6. Paragraph 3 of page one

and--"at a general election on a nonpartisan basis as pro-

24

vided by law." All right, Terry?

25 MR. MCKENZIE:

PAGE 87

Robin brought up a very inte~esting point there. If

2

the General Assembly four-~ear term passes, will there be

3

a general election every other year?

4 MR. R. HARRIS:

5

Sure. Sure. You've got--the Governor's elected one

6

time and then in off years, you've got Congresspersons.

7 MR. MCKENZIE:

8

That amendment provides that the Congresspersons be

9

elected in the years the Governor's not elected?

10 MR. SNOW:

No, that wouldn't make any difference. If you had--

MCKENZIE:

Oh, yes.

SNOW:

~ . at a general election.~ Okay. That takes care of that.

HODGKINS:

18

Is that reading, "shall be elected by the people at a

19

general election"?

20 MR. SNOW:

21

" . at a general election on a nonpartisan basis as

22

provided by law.~

23 MR. THOMPSON:

24

Didn't we make our discussion on appointment apply

25

also to Superior Court Judges?

PAGE 88

MR. SNOW:

2

Yes

3 JUDGE SMITH:

4

We got Superior Court, Supreme Court and Court of

5

Appeals.

{) MR. SNOW:

7

Okay. Paragraph 8. This is a new section. "Unless

otherwise provided by law, the Superior Courts shall sit

9

in each county not less than twice a year." This is some-

10
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@;~

thing else that we added since we met because it was--it left it somewhat vague as to--you know, the Superior Courts are now Superior Courts of counties also. So that this would require the Superior Courts to sit in the counties.

l 14 ...

Otherwise, it would be in the circuit

'<

:I:

.. 15 ...:,lMR. THOMPSON:

:>

16 .~..
zo

Could this be interpreted as meaning that they could

17 :

meet more than the two times a year if they wished?

18 MR. SNOW:

19

" not less than twice a year," yes.

20 JUSTICE HILL:

21

That seems to me may be a question that maybe subject

22

to interpretation that it may be provided by law that they

23

can meet less than twice a year. And I would add to that

24 25

the question, is it--would it be feasible to make that three times a year?

J

PAGE 89

MR. THOMPSON:

2

Mr. Chairman, you know, my problem is this: we've

3

run into some legislation that we have tried to do on

4

speedy trials and that kind of thing so that a person waul

5

be given a trial within a reasonable period of time. And

6

we've got circuits now that meet maybe once a year, maybe

7

twice a year and there's no way to get general legislation I

8

that's going to provide for speedy trial and a few other

9

things with them meeting at those lengthy intervals. And

10

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17

<
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18

I'm wondering since we're really creating something here I
that's going to be more or less circuit-wide--well, we may be getting into administrative districts really. Of cours this may not be the way to provide for it, but to provide in those small counties which don't normally have more than one or two times a year, that court can be held in those cases if it's necessary to be done rather than having to wait for the regular term of the court. I don't quite know how to put this, but it does create a problem

19

in some small jurisdictions.

20 MR. SNOW:

21

Well, they do it. They hold it--r know in our cir-

22

cult we have several weeks of courts but they're only re-

23

required to meet twice or have calendars set two times

24

during the year. But see, we've got four counties in the

25

circuit. So that the courts are staying--the judge is

PAGE 90

staying right busy in all that.
2

3

Mr. Chairman, there's one circuit that has eight

4

counties in the State and I know if you tried to meet more

5

than twice a year in each one of those counties under the

6

present system, it would be almost impossible. Those

I

II ,I

particular Judges travel constantly.

8 IIII MR. SNOW:

9 II

You see, we left an opening here, "unless otherwise

10

provided by law." There would be some areas where you

zCJ 11 ....
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could increase in--of course I think we could do that now --increase the terms of courts by general law. We couldn't decrease it any less than two terms--well, maybe

! 14 !;;

even--that would allow us to do that even.



%

15 .:JUDGE SMITH:

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16 z
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Let me throw something else in here while we're

17 '"CD

thinking. Under present law, the Juvenile Courts have no

18

term times. Can that be taken care of legislatively or

19

should that be--or would this unified court system take car

20

of that or what are you going to have in the Juvenile Court

21

system?

22 MR. SNOW:

23

" .. unless otherwise provided by law." Because we'd

24

be operating under whatever the law in right now.as concern

25

the Juvenile Court.

JUDGE SMITH:

PAGE 91 ------------ ---- -------------------------------------i

2

I think we ought to have term time for the Juvenile

3

Court system.

4 MR. PERRIN:

5

Mr. Chairman, I don't believe term time would work

6

in Juvenile Court because you've got statutory require-

7

ments for instance, that you -have 'a disposition to carry

8

the child as a contingent for ten days. Well, that's been

9

held to--if you don't have that, it's an

10

sal of the case. It's been applied strictly. So if you

Czl 11 ;
@;;..'o"....'.

only--if you had a limited number of terms, the Judge couldn't possibly, without saying a number of sessions--as a practical matter, what they do in the juvenile cases is

14 !......

if tne Superior Court's carrying them they transfer that

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16 .~.. Q

case to the county in which he id sitting at the present time and do not hear it in the adjacent county

Z
~

17 :JUDGE SMITH:

18

Which means three years later, you could appeal from

19

that Judge's decision back there.

20 MR. PERRIN:

21

Very possibly. But I'm just talking to the practical

22

reality of what they're having to do because they've got

23

to hear those cases within ten days and if they've got

24

three cases in Fayette County--

25 JUDGE SMITH:
U-

_

I

------'

PAGE 92
------------------------1
I I realize that but I'm faced with a situation right

2

now where a fellow waited about three years before he

I

3 II

wanted to appeal from what the Judge said down there and

i

4

he says, "There's no term time involved so I can appeal."

In that case you coul have some six years from now bc-

6

cause there's no term time.

7 MR. PERRIN:

8

But you've got a statute that requires them to hear

9

it within ten days.

10 JUDGE SMITH:

CzI 11 ...
@;;'.o."....

Oh, yes. But he could appeal from that hearing anytime he wanted to. He don't have to wait. He can do it six years from now it he wants to because there's no term

! 14 ...

time

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:I:

IS .:tMR. PERRIN:

CI

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... 16 zIII

Oh, I see what you're referring to

I:)

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17 :MR. SNOW:

18

well, I think that address itself, though, to general

19

law.

20 JUDGE SMITH:

21

Well, it might. That's the reason I brought it up.

22

It may address itself to the legislature but it's some-

23

thing that ought to be looked into because--there may not

24

be an answer to it but it certainly puts a--some--

25 R. SNOW:

-- ---------------- -------- -- ----------P--A-G--E----9--3---l

Well, I think he's raised a good question there,

I

2

Terry, that we might look into and act on if they've got \

3

a situation where they waited--how many years?

4 JUDGE SMITH:

5

Oh, it wasn't that long. But it was several months. II

6

expect-~ It waa way past any reesonable time that you would

I
7 MR. SNOW:

8

There should be a reasonable limitation put upon

9

appeals from the juvenile court. We can just pass a gen-

10

eral act on that.

I.?

Z

II ~ JUDGE SMI TH :

..o....

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Something like that. Because we have nothing to go by now. It's just open-ended.

14

...~JUSTICE
~

HILL:

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15 ,)

Mr. Chairman, would it clarify the thought that these

"'":::l

16 ~ Q

should not be provided by law that it would be less than

z
17 ~

twice a year? Delete the language "unless otherwise pro-

18

vided by law" where it appears and add at the end of that

19

sentence comma "or more often as provided by law."

20 MR. OLSEN:

21

That would be--you'd have to have local--you'd have

22

to have law to allow them to sit more often.

23 JUSTICE HILL

24
25

J Well, you presently do in terms of Fulton Superior
Court, which are every two months or set by statute.

-

PAGE 94
------ --------- -----l ~-----------~------~---~----~-----~-~-----~-~

MR. SNO~'1:

\

2

We had to pass a statute reducing ours from three to I

two terms. All right. Did we get that straightened out? I'
!
Paragraph 8, "The Superior Court shall sit in each county I

not less than twice a year-unless longer terms are prOVidel

by law."
~
I MR. R. HARRIS:

Period. "The Superior Court shall sit in each county

not less than twice a year."

\0 MR. SNOW:

'z"

~,

11 ~
iIo."l.l".:
12

If we want to do it, we can do it anyway by general law. Okay.

~r~MR. THOMPSON:

! 14 ~ '" %

Paragraph 9, Mr. Chairman.

" . 15 .:. MR SNOW: Ill:

:)

16 .~.. Q

Paragraph 9 is also new--has been added since we met .

Z

<l

17 : MR. THOMPSON:

18

Let me co~ment on something. There are several place

19

in this document where we put language like "exercise the

20

same powers and duties and shall be compensated from the

21

same source as now compensated." I think of this as being

22

a basic document and when you put language in there where

23

you have to go somewhere else to find out what you're talk

24

ing about, I think you're defeating the purpose of a basic

25

document. If we're going to do this, this Article is goin

PAGE 95 ----------------------1
to be--in the Constitution, then we ought to spell out how

2

these people are being compensated. I don't quite know

3

how to do it and it's going to take a little work to do it

4

But since this is a basic document, I don't think that you

5

ought to have to go anywhere else to find out what we're

6

talking about.

7 DEAN PATTERSON I

8

Could you solve that problem simply by saying: "Each

9

county shall have a clerk of the Superior Court," and the

10 1z:1
11 ....
'..o"....'
e~~~

drop down and say, "the number of clerks of the Superior Court, the powers and duties of such clerks, the amound and method of their compensation, and the number of office personn.l shall be as provided be law"?

14 ~ MR. SNOW:

'~"

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15 .:.
1:1

And leave out that second sentence.

...'"'::;)

16

~ DEAN
az

PATTERSON:

"l

17 ~

And "Provided, however, that."

18 MR. SNOW:

19

"Provided, however, that the number of clerks--"

20 DEAN PATTERSON:

21

No. No, just start "The number of clerks .. "

22 MR. SNOW:

23

~The number of clerks of the Superior Court, the

24

powers and duties of such clerks, the amount and method of

25
U-

t_h_e_i__r _c_o_m_p__e _n_s_a_t_1_o_n_,_a_n_d_t_h_e_n_u_m_b_e~_O_f_~ f f i ce pe r s on_n_e_l_ ~

shall be as provided by law."

PAGE 96 --l

2 ~1S. MORAN:

3

There also remains the problem of how the Superior

4

Court Clerks are to be selected. Presently they are

5

elected but if we left this Paragraph 9 as it stands, it's

6

not clear. Should they, in fact, be elected--

I

7 MR. SNOW:

I

8

All right. Say: "The number of Clerks of the

super-I

9

ior Court, the election of such Clerks--"

10 MR. HODGKINS:

"z

11 t.oo.-:.

How about number and selection?

@..~ ~ MR. SNOW, The number and .election?

Okay.

..14 >- JUDGE SMITH: t-

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15 .:.
"0:
:>

How does that read, Mr. Chairman?

16 C~D MR. SNOW:

Q
z
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17 ~

"Provided, however, that the number and selection of

I

18

CIe rks of the Superior Court, the powers and duties of suc1

19

Clerks, the amount and method of their compensation, and

20

the number of office personnel shall be as provided by

21

law. "

22 MR. THOMPSON:

23

Then you strike out the whole sentence preceding that?

24 MR. SNOW:

25

Uh-huh. All right.

PAGE 97

MR. DROLET:

2

We're concerned about the last part--the number of

3

office personnel. Like in Fulton Superior Court wh~re

4

there's loads of people and I tnink--would they have to go

5

to the General Assembly to hire somebody to carry files

6

around?

7 MR. SNOW:

8

You presently have legislation concerning your office

9

of the Clerk of the Superior Court in Fulton County. That

10
"z
11 ~ MR.
o...
e ; i1M 14 !...... :~z: 15 .: ":">" 16 ~ o1M Z ~ 17 ~

is provided by law and-DROLET:
Yes, it creates the Clerk and the Clerk can hire whoever they want and in as many numbers as they want. That Clerk can do whatever they want. They can hire fifty people or thirty people or whatevor they've got money for. This says "the number of office personnel sha-l be provide by law." Thattaeans before they can hire another clerk,

18

they'd have to get a local bill passed.

19 MR. R. HARRIS:

20

Right now they've got to work it out with the County

21

Commission, I would presume, to get it in the budget.

22 MR. DROLET:

23

To get it paid for, right. So essentially you could

24

have a need; have a County Commission with loads of money,

25

.-J saying "Go ahead and hire five people to type all this

---------------------

PAGE 98

stuff," and not be able to do it because the number of

2

office personnel would be constitutional. I jus t don't

3

think we need to say that.

Ii

4 DEAN COLE:

5

Doesn't the same thing go for the amount and method

6

of compensation? Is that really constitutional language

7

or--

8 MR. SNOW:

9

trie1!, we presently provide "a compensation bill for

10

the Clerks of the Court.

DROLET:

Yes, for the Clerks themselves. That's what I mean.

It's going to be prpvided by law anyway and so why does it

need to be in the Constitution?

SNOW:

I think we should--to be consistent with the rest of

the Constitution--should probably put after compensation,

18

"compensation and allowances." That would take are of--

19

would that kind of take care of retirement systems?

20 P.. MCKENZIE:

21

Of course you don't really need this at all because

22

the state Constitution is a limitation on the power of the

23

General Assembly. You don't need to give them the powor to

24

provide by law. They've got it unless you restrict it.in

25

the Constitution. So you could just not even have it in.

PAGE 99
- - - - - _ _ - - - - - - - - 1 ---------~------------
The only reason that we suggested putting this in was be-

2

cause you're going to a circuit-wide court. So if you

3

want a Clerk in each county, you need to say that just to

4

protect them there. And just leave out all the rest of

5

it.

6 MR. DROLET:

7

Where would you stop, Terry, after powers and

8

duties"?

I9 MR. MCKENZIE:

10

not--just the first sentence there.

SNOW:

Just say "have a Clerk of the Superior Court."

MCKENZIE:

Because all that other stuff is provided by law now.

And Clerks aren't even mentioned in the Constitution now.

OLSEN:

They were only brought in here because you started

18

mentioning Clerk of other courts becoming Deputy Clerks.

19

So the Deputy would become constitutional and the Clerk

20

was not.

21 MR. R. HARRIS:

22

Would the--and I know politically it's probably neces1

23

sary to put it in there. "Each County shall have a Clerk I

24

Ii
of the Superior Court.~ Does that preclude the same per-

25

son serving as the Clerk of the Superior Court of more tha1

county? 2 MR. THOMPSON:

--"---------""- ------P-A--G-E--10-0----l
I

3

Yeah.

4 MR. BEXLEY:

5

It would.

6 MR. SNOW l

7

We could say "Each county shall have a Clerk of the

8

Superior court unless otherwise provided by law"?

9 DEAN PATTERSON:

10

Does each county have a Clerk now?

"z
11 ~MR. R. HARRIS:
..o....
@;IHRO Yes. MCKENZIE:

! 14 ......

That's handled under the general law by the residency

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15 .:

requirements to run.

1:1 oK

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16 ~MS. MORAN:

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17 :

It's this problem of election, I think, that is

18

rather a touchy one. I'm sure that the Superior Court

19

Clerks are very jealous of their positions as elected

20

officers and--

21 MR. R. HARRIS:

22

Well, as I understand it, they're only covered now by

23

general law which provides for a Clerk of the Superior

24

Court and provides that they be elected and provides--I

25

don't know whether it has residency requirements as far as

- - - - - - - - - - - - - - - - - - - - - ---- -_._---~----

PAGJ;~ 101

the number of years but, at least at the time they're

2

elected, they have to be a resident of the county, I

3

think.

4 MR. MCKENZIE:

5

They're considered county officers so there is a

6

residency.

7 MR. OLSEN:

8

Wayne, we discussed this, I think, at the lunch

9

after one of the last meetings and I think ended up with

10
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14 )IM ~ :J:
15 0)
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17 'C"D

this language in here about the Clerks. On page five, we talk about rights, basically, of the Clerks of the other courts. Could it be resolved, taking--could we not take the Clerks of the Superior Court, Paragraph 9, out in its
i entirety by removing that underlined paragraph and simply I
providing that the General Assembly shall provide by law for the rights and whatever-personnel of the other courts. The General Assembly is going to have to deal

18

with some of these people in the retirement rights and

19

things that they've already developed and built up.

20

There's not just, like the Clerks of Fulton State Court.

21

They may have--I don't know if they have law clerks in

22

the civil court. But they may have some other miscellane-

23

ous personnel whose rights would have to be dealt with.

24 JUSTICE HILL:

25

Am I correct that at the present time the job

~-----~~curit~-:;-:-:~pe-~~o~-~~:r-~

------------------ .. ---------.-_._~ "

PAGE 102
-_ - _. .._----~---~.-

Clerk is purely statutory:

2 MR. R. HARRIS:

3

That is correct.

4 JUSTICE HILL:

5

Then, how would it be to say here: "r~ach county shal

have a Clerk of the Superior Court who shall have the

powers and duties and shall be chosen and compensated as

provided by law." Which actually would increase their job

security to a certain extent by making it a constitutional

10

position, but would not change their duties with respect

"z

II l-
."o~.'.

to the statutory enactments at all and would leave them

12 ~

subject to statutory change as they presently are.

@riMR. R. HARRIS:

14 >l'" :J:

How did you phrase that once aga1n?

15 ol)JUSTICE HILL:

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16 .~..

"Each county shall have a Clerk of the Superior Court

o

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17 ~

who shall exercise the powers and duties and be chosen and

18

compensated as provided by law."

19 DEAN COLE:

20

I would agree with that change. It does what needs

21
"\
23 II
24l'

to be done except again, I don't know whether compensation I

I

needs to be--compen.ation is going to have to be provided I

by law. Is there a reason that that should be in?" shall exercise the powers and duties as provided by law."

jI

25

Tha~~~~s to me to do the same thing.

_

DEAN PATTERSON:

PAGE 103

--------, .. ~--_.---~ ~-_.~

~---~-~ ._~-

. . ----_._._.~

~---~----~-_._~~

I

2

" whose powers and duties shall be as provided by

3 II

law. "

4 II MR. SNOW:

5 'I

"Each county shall have a Clerk of the Superior

I

6

Court whose powers and duties shall be as provided by law. jl

7

Is there--

8 MS. MORAN:

9

Method of selection?

10 MR. SNOW:

I

~

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11 ~

" whose powers, duties and selection--"

'o."..

~ 12 DEAN COLE:

~r~ ! 14 ~ '" :I: 15 .:.
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16 I~II MS.
o z
17 ~

That's implied, isn't it, that the legislature has
constit the power? Did you want to make it election in the
tution?
I
MORAN:
No, no. I think this is one of those administrative

115

officials that ought not to be on the ballot. But it's

19

going to be very difficult to change it.

20 MR. SNOW:

21

" whose powers, duties and method of selection

22

shall be as provided by law." Any other--any objection to

23

that language? If not, we shall move forward.

24

All right. Paragraph 10, Associate Judges.

25 MR. HODGKINS:

~~~_~ ~_~

~

PAGE 104

-----------------------------------------------------------.- ------- ---------------- ---------l

I

Mr. Chairman, did we strike the rest of that para-

I

2

graph?

3 .i MR. SNOW:

4

Yes, the rest of that paragraph--that's my under-

I

5 I!

standing--is stricken.

II

6 II

That new language is on page five as to the Clerks

I

7I

and the office personnel.

!MR. 8

DROLET:

II

9 I!

Wayne, we've got the same'thing here that Albert

10

Thompson raised, I believe. " ... be compensated in the

~

Czl 11 ...
'.o."....
12 ~

same amount and from the same source as now compensated"-this kind of thing?

~--~MR' SNON:

14 .~..

Well, again, I think we can--

'0"(
:J:
15 ~DEAN COLE:

":'>" 16 ~...
oz
0(

It seems to me to be superfluous since the next sen-

17 :

tence says provided that they can change it.

18

SNOW:

19

And "All clerks of the courts other than the Superior

20

Court shall become Deputy Clerks of the Superior Courts of

21

their respective circuits. Provided, however,the number

22

of Deputy Clerks, the powers and duties of such Deputy

23

Clerks, the amount and method of their compensation, the

24

number of office personnel to be employed, may be changed

25

by la\.,."

PAGE 105

Of course one thing that we sought to do with that

additional, even though it's superfluous, language is to

assure these folks that are presently holding these jobs

that they're not going to be out here running around

saying, "Don't vote for that new Consti tution." And they I

6

can be a rather difficult force to cope with when you've

i
I

7

got them in all of the counties of the State and have occa1

8

sion to meet with these jurors every two terms.

i

9

I think it does the same thing if we cut it out. Of

10

course--

..<z!l
II I- MR. R. HARRIS:

.o.....

@;~

There is a comfort factor in having it in there the standpoint of those persons to whom it applies.

! 14 I- DEAN PATTERSON:

'"

:E:

.. 15 0) "

Are we still talking about Paragraph 10?

~

16 ~... MR. R. HARRIS:

Q

Z

17 ~

I think we're back over to--

from

18

MR. SNO~'l:

19

We're on Paragraph 10, but we're over on the substi-

20

tute language on that which is also on Paragraph 5 for the

21

--for the first paragraph of page four.

22

At the top of page four, we've got marked through the

23

language up there relative to clerks and office personnel

24

and have in parentheses on page five some language.

25 MR. R. HARRIS:

-----------------------

PAGE 106

What you've done is take the two separate provisions

2I

with respect to those people who would be Clerks of Magis-

I

3 :1

trate's Courts and Clerks of State Courts and combined

I":

4 !I

them all into one instead of treating them separately.

I
5 I MS. MORAN:

6

Mr. Chairman, could we have a separate paragraph,

7

probably following Associate Judges and Magistrates,

8I

titled Clerks of the Court? And this would then encompass

9 II

--could encompass the Superior Court Clerks and Deputy

10
.., 11 .z..
II:
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12 II: U
@r ~ ;: z ~ MR. u '"
14 .>..-
<x
15 o..l>,
II<
:>
16 .'z"..
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~
17 ~ MS.

Clerks and so forth? And it seems to be this is a better editorial revision if we go along in the essential form of the Paragraph 9 for both. SNOW:
What our intent here, of course, is that we are not affecting anyone right now or their compensation or their rights under retirement or anything. HORAN:

18

Yes, I think that's the general theory. I think--

19 MR. SNOt"l:

20

But I think what we want to be able to do also is

21

that in the future that there could be one Clerk of each

22

circuit, that he would have deupties assigned or what

23

might be needed within that circuit to look after the oourt

24

records in any individual county. But that should be based

25

on what the needs of that particular circuit might be.

PAGE 107
-_. -- -~-_ .. -_._._-----_.- ~_._----,

MS. MORAN:

2

Yes, I understand that. As this now reads, we have

3

a paragraph dealing with court clerks--one, two--in four

4

places throughout. ,And certainly, just for editorial

5

clarity, that should be, I think, one paragraph and could

6

probably be handled that way.to pro~ect the persons pre-

7

sently in office.

8 MR. R. HARRIS:

9I
10
"z
11 :;; MS.
o.l.L.
12 ~
@r~

You've got no problem with that? You just want to

I

I
put it all where you can look under Clerks and read it all~

MORAN:

Yes, right. And we would, instead of having it

titled as in Paragraph 9, Superior Court Clerks, I would

14 .>~ .-. J:
15 o!)
"'~" 16 ~...
13
Z 17 ::;

just suggest we have a title of Clerks of the Courts. Because I really want to come back and throw out another problem for us to consider and that is for the Juvenile courts.

18 MR. SNOW:

19

Well, the Juvenile Courts under this would be a divi-

20

sion of the Superior Court.

21 MS. MORAN:

22

Well, I realize that but I have some reservations as

23

to the appropriateness of making the Juvenile Court Judge

24

an elective position unless there are some very carefully

25

spelled-out qualifications. And that's a whole

gory. 2 MR. DROLET:

PAGE 108
~. ~-'------~~'--'--~ - I
\

3

Wayne, if the only clerk we're having is the superior

j

4 II

I Court Clerk, why couldn't we, after the line that we have

5 I!

about each county having"a clerk of the Superior Court

I

Ii 6 I'I.

whose powers and duties and selection shall be as provided I

I

I

7I

by law," then throw in that language, "All clerks and othei

8

office personnel of any other courts shall become Deputy I

I

9 II

Clerks of the Superior Courts," or something like that?

\

10 MR. SNOW:

I
I

"z

I

11 ~

That would take care of it.

@;i'o.".. MR DROLET:



In that one section adn then not mention them any-

! 14 ~ '<x"l

where else.

15 ~ MR. SNOW:

":':">
16 ~... o

Let's take that language about all clerks of the

Z

<l
17 ::;

courts other than Superior Courts and place it over here

18

in Paragraph 9 on page three after we have provided that

19

"Each county shall have a Clerk of the Superior Court .. "

20

And then to editorially change it to try to comply with

21

what I gather is the consensus of the Committee as to what

22

the duties should be.

n MR. R. HARRIS:

24

On that page five the "and such Deputy Clerks shall

25

I
retain the same number of office pe_~~~onnel as emPlOyed"-~

PAGE 109

and I understand the rationale or need behind it but

2

couldn't you have a situation in a county where that it

3

has a state Court and a diminishing papulation and dimin-

4

ishing duties and no need three years from now or five

5

years from now or ten to have that same number of office

6

personnel. And simply let it--"and such Deputy Clerks may

7

retain the same number of office personnel." If you've

8

got to leave it in there, I don't want to lock in fourteen

9

people in an office handling six cases a year.

10 MR. THOMPSON:

"z
11 ..
'.o."..
12 ~
@rl 14 !.. '" :z: 15 o)MR. ":'>" 16 ~ 'oz" 17 :MR.

Mr. Chairman, under the Clerks? or not. Can't the body he wants?
R. HARRIS:
I would think THOMPSON:

what are we trying to They're going to have Clerk of the Superior
so.

do--protect peop1 that protection Court fire any-

18

Or should we try to go to that extent?

19 MR. SNOW:

20

I don't really think we need to go to all.the--to the

21

full language that we~ve got here.

22 MR. THOMPSON:

23

Just provide for a Clerk and of course you've got to

24

give them supporting personnel and forget about it after

25

that.

I
----------~

t-!R. SNOW:

2

We can cut that language.

3 MR. DROLET:

PAGE 110
------l --------------~---
I
I
I

4

Do we have to have a proviso? Something that prOVidej

5

that no diminution of compensation, power or duties shall I

b

be affected by this change? Maybe that's a short way to

7

get that in there without saying all this staff about how

8

it won't be changed provided that it can't be changed,

9

that the effect of this change is not to diminish any--

10 MR.
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11 l-
..oo....t
12 ~
@r~MR' 14 .I~.-. r 15 .:>MR. "ot ;:) 16 .lzD.. 0z '" 17 <Xl

THOMPSON: I just hate to see that go in this particular docu-
ment because-DROLET:
Well, I do too. THOMPSON:
--it only applies for the transition period. As a practical matter, the Clerk of Court can't go in there and

18

start firing folks. He's still got the same obligations

19

and maybe some more. But I think that it will take care

20

of itself really.

21 MR. DROLET:

22

Well, I think--I thought the concern was that the

23

Clerks themselves would be upset that this might be--cause

24

them to lose their jobs or money or so forth. I agree it

25

shouldn't be in the Constitution if you can get by the

rr---'-------- -------------------- ---
political problem.

PAGE III
, ,- ,--- -- ,-- -.---- ------'--'---------1

2 MR. THOMPSON:

3

I just think that the simple language that each

4

county should have a clerk of the court--of the Superior

5

Court would really be sufficient. Because small counties

6

only have that one official. Many of them just have a

7

Clerk of the Court without a secretary. The larger

8

counties have a massive set-up which of course they're

9

going to have to continue to do their work. And as long

10
z~ 11 i=
.."o...'.. ~ 12 "~'
~rl ! 14 .~.. <C % 15 ~ ~ "~' 16 ~ Qz <C 17 ~

as you protect the Clerk of the Superior Court, I really don't think it's necessary to go any further than that in the protection of rights. Now, we're abolishing some other courts. But the small counties don't have those courts. For instance, we're abolishing Municipal Courts, State Courts and whatever-have-you. Some of them do have clerks. And I don't know how to protect those people. We can't protect them if we're abolishing the courts that they

18

belong to anyway. And in large counties, it doesn't make

19

any difference. So they can--if they could do that much

20

campaigning in a small county against this, they can run

21

for office and get elected.

22 MR. SNOW:

23

All right. Let's see. We'll try to get up some lan-

24

guage on that to present after the public hearing next

25

Saturday.

---------- -----------------------_.---------------------
MR. HODGKINS:

PAGE 112

2

Couldn't we just say something similar to the--

3 MR. R. HARRI S :

Similar to what you've done in the Superior Courts.

5 MR. SNOW:

6

What we did in the Superior Courts, yes.

7 DEAN PATTERSON:

8

Yes. I thought we added the sentence to Parag~aph

9

9 under Superior Court Clerks.

10 MR. R. HARRIS:

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11 ...
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lL

In fact that same language, we used Deputy Clerks

@}.2I who were former clerks. MR SNOW:

14 ..~.... :J:
15 olI
"'";:) 16 .~..
az 17 g

Okay. Let's--there are two other areas that I think we need to take up before we adjourn today. Actually as far as our public hearing next Saturday is concerned, I think we have covered most of the areas that will be of

18

basic interest to the public. But I think we need to take

19

up, before we do adjourn today, the State Court of Claims.

20

There's been some question about that. I don't think

21

there's any actual question now about the abolition of

22

certain courts since we are abolishing them. And I think

23

we also need to leave this business of the number of Court

24

of Appeals Judges and the Supreme Court Justices open unti

25

after the public hearing.

-----------------

PAGE 113

All right. The Court of Claims--State Court of

2

Claims. Robin, did you have some--anything further you

3

wanted to suggest on that--that this become actually a

4

part of, from an editorial standpoint, that we make this

5

a division also of the Superior Court?

fi MR. R. HARRIS:

7

What I was--"The General Assembly is hereby author-

8

ized to" give original jurisdiction to the Superior

9

Court ~to try and dispose of cases involving claims for

10
CzI 11 ~
.Io..I...I
@;~ ! 14 t; % 15 0:1 CI III ::> 16 .~. MR. Q Z 17 :

injury or damage" and so forth "against the State of Georgia, its agencies " In other words, on the--gi~ing the General Assembly the same right it has now, that is, to do away with the sovereign immunity of the State, but not by the creation of a Court of Claims but by simply giv ing it to the Superior Court on the-THOMPSON:
Robin, when we were talking about the Supreme Court

18

of Claims on that commission we worked on sometime ago,

19

weren't we talking about--

20 MR. R. HARRIS:

21

We were thinking of taking those ten administrative

22

districts and the Chief Judge of those administrative dis-

23

tricts and creating and calling those the ten State Courts

24

of Claims.

25 MR. THOMPSON:

l PAGE 114
What I was talking about was the additional load.

2

See, we're creating now a new cause of action and there I

.3 II

might be come circuits that couldn't stand up under the

"

4

load. Would that be automatically creating new judgeships I

5

or something of this type?

I

I

6 MR. R. HARRIS:

i

I

7

Well, if you do away with the soveriegn immunity by

8

I statute, I think you may have to consider the--the addi-

9

tion of judges in some areas. Now, I don't know whether

I

10
..,

that you would know it in advance. It might be only after

..z
11 ...

experience as to the number of such cases that might be

o......

@-- HI~L' 12 ~

filed

iJUSTICE

14 .~~.. <C %
.. 15 ~ " :::>
16 ~
Q
Z <C
17 ~

How many compensation resolutions was the House passing in anyone session from anyone circuit. I dobut that the number from anyone judicial circuit was that substantial.

18 MR. R. HARRIS:

19

No, Harold, but a lot of people never got around to

20

filing those. And you would--with the litigious Bar we

21

have today, I think you'd find that an awful lot, once the

22

jurisdiction immunity is waived, you're going to find a

23

whole flood of lawsuits.

24 HR. SNOW:

25

Well,r would personally oppose removing that provisio

PAGE 115 -~-------------_ .. _ - - - - - - - - - - - - - - - - - - - - - - - - - - - !
that we've got in here. "Nothing contained herein shall

2

constitute a waiver of the immunity of the State from

3

suit . "

4 MR. R. HARRIS:

5

All I'm saying is just eliminate State Court of

6

Claims and just put a--put as a section: "The General

7

Assembly is hereby authorized to give original jurisdic-

8

tion to the Superior Court to try and dispose of cases in-

9

volving claims for injury or damage, except the taking" .

10

and 80 forth "against the State of Georgia." Nothing--

lz.7

@;rII .... Io..l..l..:

I'm not-AN COLE:

What's the purpose of that language--that whole line?

14 ..~.....

Unless they want to give it up, it would go to the Superio

:I:

15 .:t

Court, wouldn't it, if they waive their sovereign immun-

CI

Ill:

:)

16 .~..

ity, that would be a court of general jurisdiction

Q

Z

17 l:!iMR. R. HARRIS:

18

It would have to, if this was passed; that's right.

19 DEAN COLE:

20

And you wouldn't need any of this, would you? You

21

wouldn't need it.

22 MR. THOMPSON:

23

Robin, wasn't there some language that we discussed

24

at some time which had to do with even though we're waiving

25

sovereignty, placed a limitation on the amount of damages

PAGE 116
that coul~~e gotten fromth~-s-~~-:-~~--a POl~-::ca-;-~:~-~~~J

2

sion?

3 I MR. R. HARRIS: I'

4

Yes.

And I think you could do that in the legisla-

5

tion, vesting in what was now the Court of Claims the--or

6

giving to the public the right to sue.

7 MR. THOMPSON:

8

Well, my thought was we're going to have to be care-

9

ful how we create that because it's--if we do it in such

10
"z
11 ~ MR. 2
1M
12 ~
@rl

a way that sovereignty's gone without limitations-R. HARRIS:
Oh, I wouldn't--I assume this is basically taken from the existing constitutional provision with respect

14 ..>...-. <II %
".. 15 ol) ::>
16 ~ a1zM
<II
17 ~

to state Court of Claims. And my suggestion was not to do anything except eliminate the state Court of Claims as a separate court, keeping the same language and the same reservations and the right to reserve as now contained in

18

the Constitution, in this paragraph.

19 JUSTICE HILL:

W

Would you want to add the words "and directed" after

21

the word "authroized"?

22 MR. R. HARRIS:

23

No, I wouldn't. I'd let Mr. Thompson and Mr. Snow

24

bat that one back and forth between their committees for a

25

few years too.

PAGE 117

DEAN PATTERSON:

2

Mr. Chairman, doesn't John have a good point when he

.3

says that if we leave this out, there's nothing in this

4

Article which prohibits the General Assembly?

5 MR. R. HARRIS:

6

No. Without something in here, the General Assembly,

7

I don't think, has the right to waive the immunity.

8 DEAN PATTERSON:

9

You don't think so?

10 MR. R. HARRIS:

11 ".z..
'o."..

No.

12 ~DEAN PATTERSON:

@r~

Okay.

That's my question.

14 .~..JU-DGE SMJ;J,Ji: %

15 ~
."'::">

I agree with you there.

16 ~JUSTICE HILL:

Q
z
17 ~

The only waivers you've got right now are those

18

created by the General Assembly. You authorize the High-

19

way Department to be sued. That's a waiver of sovereign

20

immunity.

21 MR. R. HARRIS:

22

Are you saying we never needed a provision for a

23

State Court of Claims in the first place?

24 JUSTICE HILI.. :

25

We may have needed a provision for a State Court of

PAGE 118

~---,

i

Claims as a separate entity as such as opposed to the

i

2

Superior Court and you may have needed provisions to--or

3

may have wanted provisions when proposing such a State

4

Court of Claims--limits on damages and whether or not

5

there'd be jury trials and a few of the subsidiary ques-

6

tions so that if the public voted on the State Court of

Claims, it wouldn't be in the dark about those provisions.

But I think, without question, that the General Assembly

could provide that any State agency can be sued. And that

10

would be a waiver of sovereign immunity.

"z
11 ~DEAN COLE:

..o....

@;~

And if you want it to go to the Superior Court anywa y ,\ that's where it would go.

14 :..:. MR. R. HARRIS:

~
:r

IS ~

Basically you're saying we don't need that paragraph

"co

::>

16 .~..

and the General Assemhly could do what it authorizes the

o

Z

~

17 :

General Assembly to do anyway?

18 JUSTICE HILL:

19

Yes. If you're going to put it in the Superior Court

20

as opposed to creating a separate Court of Claims, which

21

the present amendment would do and this language would do,

22

Robin.

23 MR. R. HARRIS:

24

Okay.

25 R. DROLET:

~J

PAGE 119
-----------------
With no language, everything would go to the Superior

2

Court and there'd be no restriction on it if the General

3

Assembly would grant it.

4 JUDGE SMITH:

5

I move we strike it.

6 MR. R. HARRIS:

7

section 4, Paragraph l--on the basia of the adviQe

~

of the Justice of the Supreme Court, I would second the

9

motion.

10 MR. SNOW:

III

Z

1l l-

Well, if you--

@;iMR. R....oll< HARRIS:

But I'd like to let that appear in the record. I

! 14

don I t know.

I-

':<"rl

15 .:MR. SNOW:

"or:
::>

16 .~.. o

If we should adopt or strike it, since it's presently

Z

<l
17 ~

in the Constitution and it specifically does not waive our

18

sovereign immunity in the present Constitution, would the

19

Court then be in a position where they can say, well, the

20

General--or the public, by passing the new document, has

21

voiced itself to such an extent that there should be no

22

sovereign immunity anymore and therefore there is none?

23 JUSTICE n ILL:

24

I don't think so. But I'm not sure that the reserva-

25

tion to which you refer really has the breadth that might !
LL-________________ -l

PAGE 120
-------l at first blush appear. F0 r-e-: a:~::--th i s a:::-:~: n t- as

2

presently written, gives jurisdiction to the State Court

3

of Claims of suits against the State of Georgia and its

4

agencies or political subdivisions. It then preserves the

5

immupity of the State, but does not preserve the immunity

6

of the agencies or political subdivisions. And therefore

7

the reservation, as I read it, accomplishes less than at

8

first blush might seem.

9 MR. SNOW:

10
CzJ 11 ~MR.
..o....
12 ~
@r!

Maybe we'd better add something to it. R. HARRIS:
Mr. Chairman, there's a motion made and we strike Section 4.

seconded

that

14 .~.I. MR . SNOW:

:I:

15 .:.
CJ

Motion made and--okay--made and seconded to strike

'";;)

16 ~
::)

Section 4. Those of you,would'f'~or striking it, raise

z

17 ~

your right hand. tA show of hands.1 Okay. Those opposed?

18

(NO response.] That's eight to nothing. That's one way

19

to cut down on the verbage in the Constitution.

20

All right. I don't think we've got anything that's

21

bothering us as far as the Uniformity of the Courts provi-

22

sion.

23 MR. R. HARRIS:

24

One thing that's bothering Ms. Moran and me--

25 MR. SNOW:

All right.

PAGE 121
_._------------,

2 MR. R. HARRIS:

3

--both of us would like to see in those counties that

4

have created Juvenile Courts, a retentioft of the selection

5

of Juvenile Court Judges by the Superior Court Judges of

6

those affected counties, as against having them elected.

7

We seem to feel, rightly or wrongly, that Juvenile Court

8

Judges ought to be selectively selected by Superior Court

9

Judges from persons who have some kind of feeling or affin

10

ity or--by nature or by training to look at and handle and

"z

11 ...
..'o"....

dispose of juvenile court cases.

j2 ~

rect, Ms. Moran?

@);=~IMS. MORAN:

Is that basically cor-

! 14 ......

Absolutely, Thank you

:I:

15 .:. MR. SNO~l :

CI at ::>

16 .~..

Do we have any Juvenile Judges now that are elected?

Q

Z

17 :MR. R. HARRIS:

18

No.

19 MS. MORAN:

20

We would under the provisions of the Article as it is

21

presently written.

22 MR. THOMPSON:

23

Mr. Chairman, isn't it true that in most jurisdic-

24

tions in the State right now, the Juvenile Court function

25

is handled by the Superior Court Judge?

---~

MR. R. HARRIS:

PAGE 122
-- ------------- ---------- ---I
i

2

Yes, sir.


3 !1R. THOMPSON:
I

4

And isn't it only eight or ten counties in the whole I

5

S ta te--

6 I MR. PERRIN: Mr. Chairman, I can answer that.
7 II

1I I
There are fort Y- fiV

counties that have separate Juvenile Courts, either part- I

I

:I

time or fulltime or - the state Court Judge serges the

10
"z
11 ...
'..o"....
12 ~
@r~

I
Juvenile Court in six counties. In the rest of the counties, the Superior Court Judge serves as Juvenile Court Judge except that he may appoint referees and there are twenty-five referees in the State.

14 ~JUDGE SMITH:

'"

%

15 ~

You said forty-five counties have separate Juvenile

"'::">

16 .~..

Courts?

oz

17 :MR. PERRIN:

18

Either a fulltime Juvenile Court Judge or a parttime

19

Juvenile Court Judge or six of those forty-five counties,

20

a State Court JUdge also holds the Juvenile Court Judgeship.

21 MR. THOMPSON:

22

Well, now, the State Court Judges are elected?

23 t-1R. PERRIN:

24

That's correct. Except they only hold that judgeship

25

by virtue of appintment by the Superior Court Judge so even

-------- -------------- ----

PAGE 123
though the same person :~l~:-tw~-:~Siti-:'~S, it's s till a~

2

appointed position in those six counties.

3 MS. MORAN:

4

In the thirty-nine counties then, the Superior Court-

5 MR. PERRIN:

6

In all the remainder--145 minus 159--

7 MS. MORAN:

8

Yes. Well, that is the forty-five minus the six--

9 I MR. PERRIN:

10

--full or parttime Juvenile Court Judge appointed by

"z

II I-

the Superior Court Judge.

@;i.'o"..' MR SNOW:



I thought we took care of that by "selected" rather

! 14 I..-.

than--where do we mandate that the Juvenile Judge had to

:<zC:

15 .:.

be elected?

"'"';:) 16 .~.. MR. THOMPSON:

Q

Z

<C
17 ~

They would have to be--Associate Superior Court Judge .

18

That's the only provision, I believe, we have.

19 JUSTICE HILL:

20

It seems to me it's in the middle of page four, Mr.

21

Chairman, in the last provision in the middle paragraph

22

or paragraph just above the middle .. "any person selected 1

23

or appointed as an Associate Judge shall have practiced la,

24

for three years." In the next paragraph you say he shall

25

be "duly selected and qualified," as opposed to elected

and qualified.

PAGE 12 4
--.-.--------- --l
!
I

2 MR. THOMPSON:

3

What I was trying to say is I don't see how we can

4

set up a system of electing or selecting Juvenile Court

5

Judges when we are unable to get any real uniformity in

6

the state that pertains to that position. We don't have

7

anything uniform now. I don't see any way that we can get

8

anything uniform because of the diversity of the differ-

9

ence--

10 MR. R. HARRIS:

"z

11 ~

Maybe if--

@;i'.o.".. MR THOMPSON:



--in requirements within each of the judicial cir-

! 14 .~.. %
15 ~
:"':">
16 ~
oz
17 ~

cuits. And Fulton County--your needs are vastly different from the needs in Echols County. And we just can't get general legislation that would apply to both of them and be consistent.

18 MR. R. HARRIS:

19

Do you think if--since this does not say-~mandate

20

that they have to be elected, that they would continue to

21

be selected as they are now?

MR. THOMPSON:

23

I've got a problem with that, Robin. If you just put

24

"selected" in there, that could wash over .not only the

25

Juvenile Court system--does not specify Juvenile Court __--lI

PAGE 125
---------------------------------------------1
I
duties--it could wash over on all the rest of it. And you!

2

might the sitution where all of the Associate Superior

3

Court Judges are being selected rather than elected.

4 MR. R. HARRIS:

5

That would not bother me.

6 MR. THOMPSON:

7

It might bother me some. I'm not quite ready for

8

that.

9 MR. R. HARRIS:

10
..,

But the General Assembly would have to be the one to

..z
11 ...

make the change

r@r2i.o.. HS MORAN:

~ 14!..:..r..



The implication, as I see it, in Paragraph 10 is that it is possible that the Probate Court or Associate Judge

15 .~.,

and the--pr the Probate Division Judge and the division

'"::> 16 .~..
Q
Z
17 :::;

handling what it did in the county before the State Court could possibly be appointed by your Superior Court.

18 MR. RM HARRIS:

19

If the General Assembly so provides.

20 MS. MORAN:

21

Yes. And I think Paragraph 10 just opens up a lot

22

of possibilities that perhaps we can narrow down or leave.

23

But as I said earlier that I am very much concerned about

24

an appropriate method of selection especially for Judges

25

handling the Juvenile Division.

PAGE 126

MR. R.

2

3

only thing basically we're doing to Juvenile court JUdges

4

in this is reducing the term from six years to four years.

5

And changing their names and not changing the method of

6

selection. Is that a fair statement?

7 DEAN COLE:

8

But you're leaving it open to have them elected at

9 II

the General Assembly so that--

10 MR. R. HARRIS:

"z
11 .c~o.o.:
@~rEAN

But they could do that now. COLE:
I thought maybe you wanted to close that.

14 ~MR.
~x
15 ~
"co:
:;)
16 .~.. oz 17 ~

R. HARRIS: No, I don't want to close the door. I just don't
want to mandate in here that they have to be elected. If the General Assembly decides to have them elected, that's

18

the General Assembly's business.

19 DEAN PATTERSON:

20

Yes. It says "any person selected or appointed."

21 MR. R. HARRIS:

22

Sorry I raised the point.

23 MR. PERRIN:

24

M~. Chairman, you may have already THIS, BUT I have

25

one question. There are a number of employees of the

PAGE 127
_ .. - - - - _.._---- - - - - -
courts whose--who I'm not sure are covered here. For in-

2

stance, there are seventeen counties in the Juvenile

3

Courts that have a number of employees--Probation. Officers

4

Intake Officers. Fulton County, I believe, and DeKalb

5

County have counterparts in the adult system. There are

6

court reporters. There are all these persons to be assume

7

by the--on the State payroll and you're talking about

8

millions of dollars, I suppose.

9 MR. R. HARRIS:

10
Czl
11 ~ MR.
o......
12 ~
@rl

We--none .ould be assumed on the State Payroll. PERRIN:
Well, if you abolish the courts, aren't all those positions to be abolished and where will the workload be

14 ..>...-.

assumed?

:<rII

15 ~ MR. SNOW:

"at
;;)

16 .~..

Those positions are presently provided for somewkere

o

Z

<II

17 ~

in the general law.

18 MR. PERRIN:

19

That's true. But they're provided for as employees

20

of the Juvenile Court or as employees of other courts.

21

And if you abolish the court, will you not be abolishing

22

the position.

23 MR. THOMPSON:

24

They then become employees of the Superior Court.

25 MR. PERRIN:

PAGE 128

That's true if it's provided for by law, I guess.

2

But there are other employee out here in these other

3

courts we don't mention--we do mention the Deputy Clerks.

II 4 MR. THOMPSON:

5

Didn't we write out the Deputy Clerk? What I mean is

6'

I thought we were taking out of this document, you know,

7

Deputy Clerks and things and just providing for a Superior

8

Clerk Court in each county.

9 MR. OLSEN:

10
"z
11 ...
'o."..
1M
@;i

Right. by the same--that was what I raised earlier about that was the problem with Deputy Clerks. We only originally preserved them and didn't preserve all these other associated positions that were parts of another

14 ..~.... <l :J:
15 ~MR.
"'":;) 16 .'z"..
D Z <l
17 a'">

court SNOW:
I think we need some general provision in here just if it does nothing else, it just simply says "All personnel

18

the "retirement systems, the duties and other things shall

19

be continued until otherwise--or for all the courts that

20

we've affected until otherwise provided by law," as a

21

catchall for all of them, not even to mention it in each of

22

these sections but at the very end over here, where we've

23

got out--

24 JUDGE SMITH:

25

A halfway grandfather clause.

_

_J .

MR. SNOW:

PAGE 129 -------------- -- .... _._--_._---- - ----.--_._.._--- --__-------------___---1

2

Yes.

3 I JUSTICE HILL:

4

Just put i~ in the abolition of certain courts para-

5

graph and deal with personnel.

6 MR. SNOW:

7

Just deal with the personnel here, that nothing here-

8

in would be construed or to--

9 JUDGE SMITH:

10
..,
z 11 ..
@;;'o.l".L.

That's the only trouble with reformation. When we start reforming, we always keep everything we've got and just overreform on top of what we've already got. And that's what we've done right here. Typical reformation.

! 14 ......

when we start reforming, we just reform on top of it. We

15 ."~:."r,

don't bother anything that's there.

~ '"
16 I~II MR. SNOW:

oz 17 :

Well, we're only--the courts have still got to functio

18

They've still got to have the personnel. We're not--

19 JUDGE SMITH:

20

But, Mr. Chairman, we know--

21 MR. SNOW:

22

But we're not writing it into the Constitution that

23

they shall be constitutionally continued.

24 UDGE SMITH:

25
lL...

I But we know this. If it's left up to the legislature, _

-~_._-

- - - - ~ - - - -

.. -~~------_.~.~.~_

~

PAGE 130
---~-~---~'---'-'-"-"----l

by the time all the pressure gets put on by all the folks II

2

everywhere, you're going to have everybody you've got

3I

here plus whoever you need to hire to put it in. You're

Ii

4I

not going to do a thing in the world to clear up the con-

5

glomerated situation you've got. Is that what you want?

6 I MR. DROLET:

7

But we'll never get it pa-sed to get out there in the

8

first place if we don't.

9 JUDGE SMITH:

10

But what's the difference in having it covered up one

Czl

11 ...
'o.."....

place or the other?

12 ~ MR SNOW:

@r~

Well, there's no doubt but what this document leaves

14 .>..~x
15 ~
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16 ~ oz
17 :

a lot of leeway in the future to make some very great stri. des in the judicial system of this State and--so much on a regional-type basis or a district-wide basis and a circuit-wide bases; whereas, now you are tied into--

18 JUDGE SMITH:

19

I'd still like to have the people administer it.

20 MR. SNOW:

21

Well, we're improving on that, George.

22 JUDGE SMITH:

23

I think so.

24 MR. SNOW:

25
11-

All right.
_

parenthe.e~ Let'. go' to page .even to the

PAGE 131

under Section 7 at the end of Paragraph 1. That is an

2

alternate--the same alternate that we had discussed ear-

3

lier.

4 MR. R. HARRIS:

5

I think it ought to be--read the same as those

6

appointments for the judicial section.

7 MR. SNOW:

8

Let's just make the same language.

9 MR. DROLET:

10

I thought also in that Section we discussed a six-

"z
11 ;::
..'o"....
@;:I

year term similar to the Superior Court Judges' terms, which the district attorneys obviously are very interested in. For instance, the Superior Court is on a six-year

! 14 ~ '"

and the DA's in those Superior Courts on a six-year too.

:J:

15 ~ MR. SNOW:

"'::">
16 .~..
oz

Well, I think some circuits are maybe better off

17 :

being stuck with some of the jUdges they've got than what

18

they would for six years with the DA.

19 DEAN PATTERSON:

20

I can see some merit in keeping the terms different.

21

You tend to have very, very close cooperation between the

22

district attorney and the judges.

23 MR. SNOW:

24
25
LL

That is not true in a lot of circuits. Well, what do

y_O_U_f_e_e._l_-_-_h_O_W_d_O_._y_O_U__f_e_e_l_a_b_o_u__t _i_t_?

~

MR. DROLET:

PAGE 132
-----------------------------~I

2

Well, the DA's obviously prefer a six-year term.

3 II,I

Don't see any difference between that Clnd the Superior

4

il
'i

Court Judges as to why one would be six and the Other

5

four. It makes it a little bit less political and--if it

6

does it for the Superior Court Judges, it does it for a

7

DA. 50--

8 JUDGE SMITH:

9

I agree with Joe on that.

10 MR. SNOW:

Czl 11 ...
..'o"....
@;i

What do--what's the feelings of the Committee on that What would your recommendation be? Those in favor of a s ix-year term indica te by rais ing your right hand. [A

14 .~..

show of hands.] Five. Those opposed? [A show of hands.]

~:z:

15 .:>

Okay. Change that from four to six.

Cl

:'>"

16 .~..

All right. Let's go to page eight

III

Z

17 ~ MR. MCKENZIE:

18

Before you go on from the district attorneysi you've

19

got a little bit of conflict between what y'all just deci-

20

ded and the duties, and that's the State Court Solicitors.

21

You haven't mentioned them anywhere, but you said awhile

22

ago to continue all the personnel. And then down here

23

under duties of the district attorneys, it says it's the

24

25

PAGE 133

MR. THOMPSON:

2

I think we have to fact it. We're going to have to

wipe out all the Solicitors of State Courts. I hate to

4

put it as bluntly as that, but if we're going to have only

5

one trail court, then we're going to have one trial court

6

and the district attorney. If we don't do it that way,

7

we aren't being consistent in what we say we're doing.

8

I want to protect those folks as much as anyone else does,

9

but you can't create something new--as new as what we're

10

trying to do with one trial court--and not break a few

CzI

II I-
o..0..<..

eggs.

12 o~r: JUDGE SMITH:

@r~

That's what I

tried to say awhile ago.

The State

14 ~

Court Solicitors are going to be really kicking up a

':"r:

15 o!)

storm.

"0<
;;)

16 .~. MR. OLSEN:
az

17 :

There are only five fulltime State Court Solicitors

18

in the State out of sixty-two State Courts. In two cir-

19

cuirts, the DA is the sole prosecutor for both Superior

20

and STate Courts. The rest of them are parttimers and in

21

some circuits, it's very difficult to get anyone to serve.

22

It's sort of looked on as pro bono work. You know, when

23

they're making $5000 a year more or less as 60rt of a re-

24

tainer to come over there and handle guiltY pleas in

25

traffic cases.

PAGE 134
--------- ---~~------------- ------------.--------- - ----- ----------- ---. ----- --I

JUDGE SMITH:

I

2

I served with years at the very astounding salary of

3

$150 a month in Grady County, Georgia. You don't retire i

I

4

early with that.

I I

i

5 MR. R. HARRIS:

i

6

I think Mr. Thompson's observation is correct. I

7

mean if you're going to have a unified court, then you're

8

going to have the Superior Court handle--all cases be

9

within--under the Superior Court, then the district attor-

10

ney is the appropriate person.

zCJ

11 ~MR. SNOW:

o......

~ 12 ~

And we have provided assistance for the district

~)~

attorney's office and they can also be added by local

..! 14 ~

legislation--additional assistance.

~

:I:

.. 15 ~MR. THOMPSON: CJ

:>

16 .~.. oz

The larger the county gets, the less the Solicitor is

~

17 :

going to be able to influence the vote anyway.

18 MR. SNOW:

19

All right. We can keep that in the back of our minds

20

and discuss it possibly further at a later time. Let's

21

see. Page--Paragraph 3 on page nine--yes?

22 JUSTICE HILL:

23

Excuse me. I had a question with respect to Paragraph

~

2 on page eight, Mr. Chairman.

25 R. SNOW:

Paragraph--I'm sorry.

PAGE 135 --------
Paragraph 2 on page eight was

2

my next area.

3 JUSTICE HILL:

4

Reazly, the position of Chief Justice Emeritus, Jus-

5

tices Emeritus, Judges Emeritus--all your emeritus posi-

6

tions are in the process of being phased out. I don't kno

7

the numbers but they're relatively few judges and justices

8

emeritus today.

9 MR. R. HARRIS:

10

What are they called when they retire?

CzI

11 ~JUSTICE HILL:
o......

~ 12 ~

I'm not really sure that you need any provision in

(@)F~

your Constitution today--maybe I'm wrong. Maybe there are

14 ..~....

more emeritus positions than I'm familiar with. But since

:J:

15 ~
"'~"
16 I~II
Q

you're trimming it UPi cutting it down, you've got some people today who are retired from the Superior Court bench

Z 17 ~

pursuant to the State Employees Retirement System, but not

18

under what was formerly called the Superior Court Judges

19

Emeritus. Maybe you don't even need Paragraph 2.

20 MR. THOMPSON:

21

Can we protect the rights that were created under the

22

old Emeritus Act and leave this language out?

23 JUSTICE HILL:

24

I would think that the due process and equal protection

25

would take care of that.

MR. SNOW:

PAGE 136
----"--------------""-"--"- ""----------1

2

This language really only provides that they can pre-

3

side and if you didn't have it in there at all, of course

4

if any court by their rule wanted them to be able to pre.

5

side or by general law provided for it, they could,

6

couldn't they?

7 MR. R. HARRIS:

8

I should think so.

9 MR. SNOW:

10 Czl
11 l-
...oll<
""
@;~

Those in favor of taking i t out, say aye. [A chorus of ayes.) Those opposed, no. [No re sponse . ) All right.
The last section that I have is on page nine, Paragra h 3.

14 ~MR. R. HARRIS:

~

:I:

15 .:
Cl ll<

I like that Paragraph 3 better than the Paragraph 3

~

16 ~
o

that starts on page eight and goes to the bottom of page

Z

~
17 ~

nine.

18 DEAN COLE:

19

Is that replacing the whole thing right there?

20 MR. SNOW:

21

That's what you made comment on earlier that you

22

thought this was such an important provision that--and the

23

activity itself was so important that it ought to be

24

spelled out fully?

25 MR. R. HARRIS:

PAGE 137

I'm saying I like the short ~aragraph 3 hetter than

2

the long Paragraph 3.

3 MR. SNOW:

4

Yeah, but you had earlier said you wanted it all set

5

out in there. All right. Are you moving, Robin, that we

6

adopt the alternate--

7 MR. R. HARRIS:

8

Underlined Paragraph 3, on page nine

9 MR. SNOW:

10
..,
z 11 i=
'o."..
e}~rEAN

--language that is the underlined Paragraph 3 on page nine? Is there a second to that motion? PATTERSON:
I second.

. 14 ..>...-. MR SNOW:

%

15 ...),

All right. Is there further discussion on it? All

:':">

16 .~..

right, Joe?

oz

17 ~ MR. DROLET:

18

I think the existing language has a lot more protec-

19

tions and procedural safeguards and so forth. Paragraph 3

20

just leaves it wide open as to what might be in there. I

21

agree with Robin's original idea that this is something

22

very important. The original language, I think, is more

23

complete.

24 MR. SNOW:

25

There was a comment--I thought Robin had made it orig-

PAGE 138 - - - - - - - - _ . _ - ...__.._ - - - - - - . ----------_ .. - -- --' - - inally--when we had this Paragraph 3 up that this was such

2

an im--a vital section, that it was dealing with a removal

3

of a judge and so important that it should be spelled out

4

fUlly.

5 MR. R. HARRIS:

6

It may have been Chief Justice Nichols.

7 MS. MORAN:

8

With the adoption of the new paragraph 3, would that

9

indicate the abolition of the Judicial Qualifications Com-

10

mission?

SNOW:

No. Well, yes, as it's spelled out here. MORAN:

I realize that it would give that authority to the

General Assembly. Is it implied that the General Assembly

is about to wipe out the Judicial Qualifications Commission

SNOW:

18

No. I would think that probably--

19 MR. R. HARRIS:

20

they "shall provide a method."

21 MR. SNOW:

22

Let me suggest on something like this. This is

23

actually--what Robin is saying, to try to cut down the

24

verbage simply would mean that we have got statutory law

25

written into the Constitution.

All right.

b~ There should

--------

PAGE 139

accompanying the Constitution a new statutory law which

2

would provide this procedure. I think we've already--I

3

don't know whether we've got that now because it is so

4

written into the Constitution.

5 MR. OLSEN:

6

There's no statute on it.

7 MR. SNOW:

8

There's no statute on it. So there should be a

statute drawn to be effective upon the passage of this COft

10

stitution going into the detail as to the--yes?

..,

z

11 ~ MR. DROLET:

..o....

@;~

One 6 the thihgi that warri.s me a"little bit is some of the legislation that has been proposed, you know,

14 ~ I'~" %
.. 15 ~ " ::l
16 ~
iz':i
~
17 :

c~lling for widely different groups of people who will be doing the disciplining and the cutting up and forcing retirement and so forth. I sort of hate to leave that up to something that varies so much from year to year by action

18

of the General Assembly, not that I don't have great faith l

19

in the General Assembly. But it seems that if we come up

20

with what is a good formula, it will provide a procedure

21

and at the same time provide procedural protections for

22

Justices, Judges, DA's and so forth. I think we ought to

23

be a little bit specific.

24 MR. SNOW:

25

Well, what I suggest is that if it's taken out, there

PAGE 140
be an accompanying Piec~~of:"giSlation90~:~to :~::~ml

2

degree of detail to be passed correspondently with the

3

time of the effective date of the new Constitution.

4 MR. OLSEN:

5

Under the language, you know, that you propose, the

6

General Assembly could allow--could permit the Governor to

7

remove the Judges. It could permit varying groups. The

8

removal now is vested exclusively in the Supreme Court, th

Judicial Qualifications Commission being basically an in-

10

vestigative body.

"z

11 ~ JUSTICE HILL:

@;;..o....

Mr. Chairman, I applaud the ~revity of the paragraph. I think that that, of course, is consistent with other

14 .!. '" :I: 15 J)
"at
:>
16 ~ Q z
17 :

fine work that the Commission has done. At the expense of opening up another can or worms, what would be the view that the General Assembly shall provide subject to the approval of the Supreme Court a method or that the Supreme

18

Court shall provide subject to the approval of the General

19

Assembly. I care not particularly which way, but eliminate

20

the concern which has been expressed by some that to have

21

it subject to being changed every two years or every year,

22

really, is a little bit too loose.

23 MR. R. HARRIS:

24

Personally, I've got no problem vesting the authority

25

in the Supreme Court--personally.

MR. BEXLEY:

PAGE 141 ---------------------------- ----------------------l
I

2

I agree with what Justice Hill says because every

I

two years we get a difference of opinion on some Judge

4 II

in some area that there's going to be a bill in the hopper

5

to change different methods were we'll get rid of him in

6

the legislature.

7 MR. DROLET:

8

That's what we've had for the last two years. There

9

have been a number of bills because ofcertain judges which

10

might not have been good bills.

"z
\1 ~MR.
e ; ;.oa....

R. HARRIS: well, I've
Assembly to the

got no problem just changing "supreme Court shall provide

the General a method by

..14 ~ I-

which a Justice, Judge." or so forth. I have not problem

0(
:r

.. 15 ~
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J6 .~.. o z 0(

with that personally. I think that's where it ought to vest anyway .

17 : MR. OLSEN:

18

well. do you want vest the Supreme Court with the

19

removal power or the exclusive power of selecting the

20

method? There's a question there. I tend to lean toward

21

the Supreme Court having the power to remove because we're

22

dealing with elected constitutional officers, but then

23

allowing the Supreme Court to determine the--to develop the

24

investigative body~-to set out the standards in the consti-I

25
LL-

tution by which the Supreme Court may remove the persons !

-------------

I

r-- --~~ ~he- - ---------.----- -._.-

--. .- - - - - . - - -

PAGE 142
---l

present Article does but then leaving to the suprem,

2 II

court by rule to to provide for an investigating body.

I

3

I
I,

MS.

MORAN:

Ii

4 'I

May I have a point of information, please? The pro-

I
5I

vision, I believe we now have in the State Constitution,

I
provision for a Judicial Qualifications Commission, has

: II

there been satisfaction with that? Has it not been imple-

HI

mented? I think there were some of Us who really worked

hard to see that thatamendment was passed.

IO MR.
..,
II ~
'o.."....
12 ~
@r!

SNOW: It has--there have been several Judges, I understand,
that were censured and suggestions have been made to them under this provision. There are no Judges that I know of

14 >I~ x
IS ..:.>,
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16 .~.. oz -c(
17 ::i

removed from office because of it. But they have been active and they have--a lot of times it just takes the suggestion that we are hearing complaints and "You'd better shape up." And I believe that, really, that was one of our

18

arguments when we tried to pass this, that that would be

19

all that was necessary in most cases to really get the

20

courts going and where we had some intemperate Judges--com-

21

plaints and comment on that, that they'd better sober up.

22 MS. MORAN:

23

I, too, feel--I heartily support the brevity of Para-

24

graph 3, but I really would like to see some provision for

25 l _ retaining the Judicial Qualifications Commission.

~

.- .-----PA-G-E-1-4-3--l
MR. SNOW:

2

All right. Let me do it on this basis first. Those

3

of you who would favor Paragraph 3 as it appears in paren-

4

theses at the bottom of page nine, indicate by raising

5

your right hand.

6 MR. R. HARRIS:

7

Could you--I would favor it--on reflection after

8

Justice Hill, I would favor it by saying the Supreme Court

9

shall provide.

I

10 MR.
"z
II ...
.'o"..
@-- ~12 ~

SNO~'l:
Vesting it in the Supreme Court. would be in favor of that, raise your show of hands. 1

Those of you who right hands. [A

14 ..>..-.. JUDGE SMITH:

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I'm not quite sure what you're wanting us to decide.

16 ;... Q

Let's go back and see what we're deciding

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17 ::iMR. SNOW:

18

Well, we are not really making a--I was just trying

19

to see where you stood on it.

20 JUDGE SMITH:

21

But I don't know what I'm standing on.

22 MR. SNOW:

23

All right. The alternatives before us at this time,

24 25

".J of course, would be Paragraph 3, as it appears, which is
the present language as it appesrs in_the. con::U tution

~JU~GE SMITH:

PAGE 144
----------------l

I

2

That would be in preference to Paragraph 3 as is?

I

3 IMR. SNOW:
Iii

I
I

4

As is. Or, as Robin has suggested, that the General

5

Assembly be removed and the Supreme Court have this author-,

ity. Or the Supreme Court select the method. All of you

who would like to leave it like it is, raise your right

hands.

DROLET:

10

Starting on page eight?

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II ~MR. SNOW:

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The language as it starts on page eight down through the bottom of page nine, those that would be favorable to

! 14 ...

leaving it as it is, raise your right hands. [A show of

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hands. J One, two, three. All right. Those opposed'to

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leaving it like it is

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17 :MR. R. HARRIS:

18

I would rather have that than nothing.

19 MR. BEXLEY:

20

With Paragraph 3? I don't want Paragraph 3. I'm

21

opposed to that.

22 MR. SNOTN:

I'm talking about Paragraph 3 as it presently appears

24

in the Constitution, the whole thing. There's an alterna-

25

tive Paragraph 3. Those in favor of Paragraph 3 as it now

PAGE 145

is in the present Constitution, raise your right hands

2

again. [A show of hands.) One, two, three, four, five,

3

okay. Those opposed?

4 MR. R. HARRIS:

5

I'm not opposed, 1--

6 I MR. SNOW:

7

All right. Those who would prefer the alternative

8

then, raise your hand. This would be where the Supreme

9

Court did it, all right. [A show of hands.l One, two.

10 MR. BEXLEY:

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Well, I don't know.

12 ~DEAN COLE:

I'm still traddling it.

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I'm on the fence too.

14 .>..-MR. R. HARRIS:

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Then, the vote goes to leave the long one in.

16 I~D MR. SNOW:

ezll
17 :

well, leave it in there. Of course this is again

18

tentative. We've got the public hearing next Saturday.

19

So--

20 MR. !~CKENZIE:

21

Wayne, May I ask a question on Justice Hill's sugges-

22

23

tion on putting personnel and matters in that paragraph on

24

the abolition of courts. Would that also include the Clerk

25

of Courts and all that language? Would we bring all that I

---.J

r-- - ----------------~------into that last section?

PAGE 146

2 MR. SNO\'J:

3

I think so. I think we can include it all.

4 JUSTICE HILL:

5

May I mention one other thing since you apparently

6

are preserving. at least temporarily. Paragrah 3 as is.

7 II

That I would prefer to see a comma in paragraph (b) at the

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top of page nine after District Attorneys. It presently is at least capable of the presumption that the District Attorneys could be removed ih accordance with the provisions of the paragraph. but that the others wouldn't. And then down there, about twelve lines under that. at the lefthand margin. it provides that the Commission may order a hearing concerning the removal or retirement of a justice or a judge. but does not provide for ordering a hearing with respect to a district attorney or Attorney General. And perhaps just striking justice or judge from that,

18

would permit the holding of hearings with respect to the

19

Attorney General and district attorney.

20 MR. SNOW:

21

Okay. I think we can just strike justice or judge,

22

can't we?

23 MR. OLSEN:

24

You need to do that also on the last line of that

25

same paragraph.

----------------------- ----------------

PAGE 147

MR. R. HARRIS:

2

well, you need to beef up the next paragraph with

3

respect to "Upon an order for removal, the justice or judg

4

shall thereby be removed from office " If you're going

5

to remove a district attorney, you need to--

6 MR. SNOW:

7

Well, the reason we've messed up on this thing is tha

8

we have actually--we added district attorney to this.

9

That was something new in this proposal. District attor-

10

neys were not included or are not included in the present

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Constitution.
R. HARRIS:

Okay.

And you need to provide again that the district attor-

14 .~~x..

ney who is a member of the Commission shall not partici-

15 .:>

pate in any proceedings involving his own removal. You

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16 .~..

just have to clean it up all the way through

zco

17 :MR. SNOW:

18

Okay. All right. Next saturday morning, notices

19

have already been sent out that we will have a public hear-

20

ing on this Article. Also the various--well, an outline

21

of some of the work we have done here has been sent to the

22

press and also to folks who are interested--who we think

23

would be interested. If you've got any other suggestions

24

as to people we might send information to, then of course

25

that would be well worth our while bo do that. But we will

---------- ----

- -,- - - - -PA--G-E-- -14-8---l

be meeting in Room 341 next Saturday at 10:00 o'clock.

2

That's October 15th. I appreciate your being here.

I

3 MR. DROLET:

I

\:

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4

Have we scheduled a meeting after that one?

5 MR. SNOW:

6

We will--I think we'd better wait and schedule--we1re

7

going to be at that meeting. If we don't have lengthy

8

testimony, then I was thinking that we would go ahead and

meet briefly after that. We certainly will decide on a

10
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meeting. DROLET:
I'm going to be why I was curious.

out of

town

that Saturday.

That's

14 .>..-DEAN COLE:

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We scheduled one tentatively for the 21st.

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16 I~II MR. R. HARRIS:

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It was tentatively scheduled for that and I wanted to

18

say I will not be here on the 21st. I'm going to be in

19

Chicago the 19th, 20th and 21st.

20 R. BEXLEY:

21

I'm going to be out of pocket that week too.

22 R. SNOW:

23

How about the 24th? That's on Monday. I've got an-

24

other meeting that morning. I just want as many folks here

25

as possible because we're down to the nitty-gritty now and

PAGE 149

especially after the public hearing. Okay, 1:00 o'clock,

2

October 24th.

3

[Whereupon, the above entitled proceedings were adjourned

4

at 1:15 o'clock, p.m.]

5

C E R T I F I CAT E

6

I hereby certify, as the court reporter, that the

7 statements that appear in the proceedings were taken steno-

H graphically by me, and thereafter reduced to typewriting by me,
I
9 II and that this transcript is a true and accurate record to the

10 best of my ability.
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DARLENE F. AKINS, CCR
N"lary Public, Georgia, Stale III large
:.\/ c ' ,,,",j,,,,),, Expires Aug, 3, 1980

18

19

20

21

22

23

24

25

------------_._-_._----~

, 'INDEX
Committee to Revise Article VI Full Committee Meeting Held on Oct. 7, 1977

FULL COMMITTEE MEETING, 10-7-77

Proceedings. p. 2

Section~: Judicial Power

Paragraph I:

Judicial power of the State. pp. 121-130

Paragraph II:

Unified judicial system. pp. 3-12

Paragraphs III:

Judges,. exercise of power outside own court; scope of term "judge" ,

VI:

Judicial circuits; courts in each county; court sessions, and

VII:

Judicial circuits, courts, and judgeships, law changed.

pp. 88-112, 135-136

(See also, Article IX, Section I, Paragraph III) .

Paragraph VIII: Transfer of cases. pp. 48-61

Section III: Classes of Courts of Limited Jurisdiction

Paragraph I:

Jurisdiction of classes of courts of limited jurisdiction. pp. 121-130

Section IV: Superior Courts

Paragraph I:

Jurisdiction of superior courts. pp. 68-74

Section V: Court of Appeals

Paragraphs II:

Panels as prescribed, and

V:

Equal division of court. pp. 67-68

Paragraph III:

Jurisdiction of Court of Appeals. pp. 54-61

Section VI: Supreme Court

Paragraph I:

Composition of Supreme Court; Chief Justice; Presiding Justice; quorum; substitute judges. pp. 12-17

Paragraphs II:

Exclusive appellate jurisdiction of Supreme Court,

III:

General appellate jurisdiction of Supreme Court, and

V:

Review of cases in Court of Appeals. pp. 48-61

Full Committee Meeting
1Q...7... 77
Page 2

Section VII: Selection, Term, Compensation, and Discipline of Judges

Paragraph I:

Election; term of office. pp. 74-87

Paragraphs III: Vacancies, and

IV: Period of service of appointees. pp. 17-48

Paragraph VII:

Discipline, removal, and involuntary retirement of judges. pp. 136-147

Section VIII: Paragraph I:

District Attorneys
District Attorneys; vacancies; qualifications; compensation; duties; immunity. pp. 130-134, 146

Section IX: General Provisions

Paragraph II:

Disposition of cases. pp. 61-64

ARTICLE I: BILL OF RIGHTS

Section II: Origin and Structure of Government

Paragraph IX:

Sovereign immunity of the State from suit. pp. 112-120 (State Court of Claims discussed)

Transcript of the Proceedings of the Public Hearing of the Subcommittee on the Judiciary, Select Committee for Constitutional Revision, held ,in Room 341, State Capitol, Atlanta, Georgia, Saturday, October 15, 1977, commencing at 10:00 o'clock, a.m.
BRANDENBURG & HASTY
SCIENTIFIC REPORTING 3715 COLONIAL TRAIL, DOUGLASVILLE, GEORGIA 30135
942-0482 DEPOSITIONS - ARBITRATIONS - CONVENTIONS - CONFERENCES

I NDE X

2 Judge Floyd E. Propst, Probate Court,

Fulton County

3

Herbert A. Rivers, Solicitor, State

4

Court, Cobb County

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19

Joe Mundy, President, Superior Court Clerks Association of Georgia
Judge J. Oscar Mitchell, State Court, DeKa1b County
Judge Calvin M. Simpson, President, Probate Judges Association of Georgia
Judge J. Taylor Phillips, State Court, Bibb County
Judge Grady C. Pittard, State Court, Clarke County
Judge Clyde Henley, Superior Court of DeKalb County
JI-f.hl..d.rl'" .
Judge E. T. He~on, Superior Court of DeKa1b County
Judge C. Winfred Smith, State Court, Hall County
Judge Kenneth B. Followill, State Court, Muscogee County
Hinson McAuliffe, Solicitor, State Court of Fulton County

20 John R. Thompson, Solicitor, State Court of DeKa1b County

JUdge Jack Bryan Smith, State Court,

22

DeKalb County

I '3 James E. Venable, Esquire

': ~_LanSing G. Wils~n

PAGE 2
6 8 9 12 14 19
25
42
45
47
57 62 67
71 74
78

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Judge Dorothy Beasley, State

82

Court, Fulton County

Lois A. Bailey, Justice of the Peace,

91

Clayton County

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I think we can proceed. Those of you who would want to leave with the Committee any written remarks, we will of course accept those and will appreciate receiving them. 1 1 m Wayne Snow, Jr., Chairman of the Committee to revise the Judicial Article of the Constitution, authorized by the Select Committee for Constitutional Revision.
We have a commission that has been working the latter part of the Summer through the first of the Fallon the Judicial Article. We have come forth with certain tentative recommendations. The Committee, of course, subsequent to this public hearing will continue its de1iberations and we hope to take into consideration--we \'1i11 take into consideration certainly the remarks that we hear today after we continue these deliberations.
We of course are interested and concerned that we corne forth with a document that will be in the best interests of the people of this State. That is the primary purpose of it. If it totally is a continuation of a great. deal of the verbage that we have had in the past, if it does not have the effect of improving the judicial system, then of course we have wasted our efforts thus far. And I think that we all join in--most of us who have an interest in the Judiciary--in hopefully desiring to improve the

l'A\a,; 4
11
jUdicial system in this State. Ultimately, that is the

goal of the various recommendations that have been made.

It will be, of course, the goal of the commission to sub-

mit to the General Assembly a document that we, as a com-

mission believe best exemplifies what would be in the

best interests of our State.

With that, I also would like to have the members of

the commission who are present, beginning with you, Judge

Smith, to stand and to introduce yourself to the members

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of the public who are gathered here, and your titles.

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George T. Smith, Judge, Court of Appeals, represent-

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ing the Court of Appeals on the Committee.

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14 ~MR. H. HARRIS:

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I'm Hensel Harris. I'm here on behalf of the

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Younger Lawyer's Section of the State Bar of Georgia.

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II ~MR. THOMPSON:

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I'm Albert Thompson from MUSCOge~ounty. And I'm

19

Chairman of the Special Judiciary Committee of the House

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of Representatives.

~ 1 \ir-m. R. HARRIS:

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Robin Harris, a businessman from Decatur.

2.3 !JUS'fICE HILL:
24

J .\,1.,1'. 5

DEAN PHILLIPS:

Ray Phillips, representing the University of Georgia

-'

School of Law.

,i DEAN COLE:

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John Cole, representing Mercer University, School

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of Law.

MR~BEXLEY:

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Harry Bexley, Legal Counsel, AFL-CIO.

') MS. 110RAN:

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Charlotte Horan, Georgia League of Nomen Voeters.

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Lucy williams, representing the Fulton County Grand

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Jurors.

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All right. I think that's all the members of the

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commission. I will ask those of you who wish to be

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heard--we'll call your names. Some of you have indicated

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that you wish to be--yes, sir?

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1'1 i JUDGE SHOR'l':

Mr. Chairman, I'm Jack Short, President of the Trial

2I

Judges and Solicitors of State Court. We have numerous

members here. Some of them would like to speak. ,:3 I MR. SNOhl' :

All right, sir. Well, we will--have they signed the

list?

JUDGE SHORT:

Yes, sir.

3 MR SI~O'\':

All right, fine. All right. hIe will begin with Hr.

Floyd E. Propst with the Probate Court of Fulton County.

If you will, please, sir, come forward and speak from

the mike. And state your name and position, too, please,

for the record.

'.1 WDGE PROPST:

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Representative Snow, other members of the Committee,

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ladies and gentlemen, my name is Floyd Propst and I'm

Judge of the Probate Court of Fulton County. I would

like to read into the record a brief letter which I have

delivered this morning and addressed to Representative

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Snow.

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"Dear Representative Snow: I am in favor of a one-

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tier system of trial courts, and in general I think the

tentative draft summarized in your memorandum dated Septemj

ber 30, 1977, is a step in the right direction. However,

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I am concerned about the portion of Paragraph 10 of your

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summary which states tha~ Associate Judges shall retain

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their present jurisidction and compensation unless changed

by law.

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First, with respect to jurisdiction, I believe that

one of the main goals which shou~d be accomplished by uni-

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fication is to give the probate courts equitable as well

as legal jurisdiction, and to extend the scope of this

jurisdiction to allow the court to dispose of all related

aspects of matters which come before it. For example,

the probate court should be allowed to construe weills

as well as probate them.

"Second, as to compensation, I believe that any judge

of the probate court, state court or juvenile court who

meets the statutory qualifications required of a regular

superior court jUdge should receive the same compensation

and status as a regular superior court judge. This is

simply an application of the concept that persons should

receive equal pay for equal work. In our efforts toward

court unification, we should try to learn from previous

experiences in other states. Judge Cil1iam C. Calvin of

Illinois has written as follows concerning the efforts

toward court unification in his state:

A significant improvement made in 1970 lies in

the classification of judges. Some friction

between Associate Judges and Circuit Judges was

apparent on a sort of 'caste' system after the

1964 Article went into effect. Old attitudes

were hard to change. Hhatever the cause, the

1970 constitution eliminated the distinction be-

tween the former Associate Judges and Circuit

Judges and all are now Circuit Judges with the

same jurisdiction."

I would like to make one brief comment that's not in

the latter. With respect to the Probate Court, the ten-

tative draft basically says things stay the same until

(;

provided otherwise by law. It is obvious, however, t~at

the purpose of the new Article is not to allow things to

stay the same, but give the legislature power to make

changes. I suggest that rather than having this two-

IU

step process, first, of sweeping away by constitutional

structure and then, secondly, allowing the legislature to

put a new structure in its place, that it would be far

better simply to go ahead and provide in the Constitution

in general terms what the new organizational structure

would be. Thank you very much.

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At any time any members of the commission would like

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to ask any questions of any of the speakers, then of course indicate that you--your desire therein and we will allow such.
All right. Mr. Herbert Rivers, Solicitor, Cobb County

.:3 f\1R. RIVERS:

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Mr. Snow, members of the Committee, I think that

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you have created a monster. It is a giant bureaucracy--

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what you've done. The objective will not be accomplished

to be subject only to the Supreme Court--Justice Hill.

If everyone retains their powers, how is it different

from what we have now. If it's not good now; it's not

good then.

And if you give all the power to the DA to handle

our court, there will be no checks and balances. For exam-

ple, in Albany, a DA is serving time because he took

bribes. What is there was a Solicitor there to watch

out for him--to act as a check and balance?

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Financially, for me it would be great because you

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would have to pay me for the rest of my time. I don't

ming that. But, like I said, you've created a monster

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in my opinion. Thank you

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Are there any questions? All right. Mr. Joe

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Mundy, Superior Court Clerks Association of Clayton

County. Joe?

I'} MR. MUNDY:

Mr. Chairman, ladies and gentlemen, I have a state-

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ment that I would like to read with your permission.

2

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MR.

SNOt'l:

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Yes, sir

. 4 IvtR. HUNDY:

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Mr. Chairman, on behalf of all the Clerks of the

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Superior Courts of this State, I want to thank you and your committee for allowing me to respond to the new proposed Article VI to ti1e Georgia Constitution.
The Clerks of the Superior Courts of Georgia, who are in daily contact with the people they serve, are perhaps, more aware than anyone else in Georgia, that a need exists for revision of our Judicial System.
Any revision of our current Judicial System should provide a means by which those citizens, whom the system is designed to serve, can be served effectively and efficiently without confusion, delays and excessive costs.
It is hopted that any changes in our system will inelude these thoughts among the primary objectives.
I invite your attention to the summary sheet of the proposed Article VI sent out by the Chairman's office, dated September 30, 1977.
Section 2, Paragraph 3, which proposes to increase terms of Judges of Supreme and Court of Appeals to eight years. We are opposed to this increase and feel that the people should have an opportunity to vote for their publie servants at least every four years.
Section 3, Paragraph 5, which proposes tp cjamge tje: terms of Superior Court Judges to six years. We are opposed to that for the same reason.
Section 3, Paragraph 9, we urge that the first line

j':\\.[', 11

in this paragraph be changed to read as follows:

Paragraph 9. Provides for a Superior Court Clerk in

3

each county and that they shall be selected by the elec-

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tors of their respective counties to four year terms.

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In Section 3, Paragraph 10 and 11, in implementing

the plan to integrate personnel from other courts, we

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urge that you do not restrict the authority of Superior

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Court Clerks to appoint his deputies.

Mr. Chairman, I think, in looking over the Article

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that was handed to me this morning, I may be a little bit

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off.

SNO\'l:

Yes, we made some changes since ~1e initial--

MUNDY:

I think this last Section 3, Paragraphs 10 and 11

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that I refer to really is now Paragraph 12 in your new--

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Yes, sir.

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Thank you.

Thank you very much, sir.

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I think some of your objections, too, especially in Paragraph 9 were met by this revision hereto.

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Thank you, sir.

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Judge Marsh, did you wish to be heard?

i JUDGE MARSH:

At this time, I decline.

:) ! l1R. SNOW:

Hr. Hitchell?

. JUDGE HITCHELL:

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Yes, sir. Mr. Chairman, members of this Committee

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and thanks to the news media. Had it not been for the

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news media, I and many others would have known nothing of

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this proposal at this time had it not appeared in the

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Atlanta Journal under a bouquet of roses.

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Well, if the press had been at more of our meetings,

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everybody would have heard more about it.

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~JUDGE

MITCHELL:

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I am informed that the press is represented at this

18

meeting. I hope so anyway.

IY

It says that they are wanting to make the courts

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more responsible to the people. Who are they? Is it some!

21

hierarchy who wants to set themselves up in a position to

dominate the court system of this State and to take away

.' 3

from the people their right to elect those who will judge

24

~~em. This proposal sets up an appointed judicial system.:

Is that more responsive to the people? I have been a

1[----- -- ..---.. - _..-. . .-.. - ---_ .

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judge of this State for thirty-seven years and I should

have some knowledge to the practical application of the

judicial system affecting the citizens of my county and

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my State.

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I say this thing shows us the flower but hides from

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proposal, is the power to destroy. The Supreme Court

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would have the authori ty to say how many Superior Court

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Judges you should have. Does this give them the authori t

10

to say how few? This proposal, if it ever gets to the

people, would be presented in a bouquet of roses some-

thing like this: Do you favor judicial reform? I have

seen too many of these bedsheets that have been submitted!

to the people in the form of constitutional amendments

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and, as I instructed my jury this week, don't look at the

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bedsheet; look under the bed.

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I say, and I'm calling upon you now, take the lamb's

cloak off this proposal and look to the lion. With this

proposal would affect every hamlet in Georgia down to the

Recorder's Court, the Traffic Courts of our system. I

say to this Committee that it is now time to nip this

proposal in the bud and to keep it from growing any thorns.

And let the judicial system of this State stay, and con-

tinue to be responsive to the people of your electorate.

Thank you.

MR. SNOW:

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Thank you.

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JUDGE

SIMPSON:

Judge Simpson?

4

Mr. Chairman, and Mr. Executive Director, ladies

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and gentlemen of the Select Committee, first of all, I

11

want to tell you I'm representing the Probate Judges'

Association for the State of Georgia.

I want to thank you for the privilege of appearing

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before tilis body to express to you the feelings of, by

far, the vast majority of the Probate JUdges in Georgia

concering revision of the Judicial Article.

First, let me express to the Committee and the sub-

commmittees our gratitude and appreciation to each of you:

for the many hours of work you have given unselfishly

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toward this Article. We realize how difficult it is to

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write an Article such as this or even a general statute

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that will best serve the entire State with such a variance

in each county or each judicial circuit. Yet this is whab

we must consider.

To remain on the positive side, I want to emphasize

that the Probate Judges of this State are not strictly

II anti. 11 Ne are not a negative group, even though some-

times we are accused of being such. We, as a group, have

assisted in drafting, passage and implmentation of pro-

gressive legislation in fields of elections, mental health,

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alcoholism, administration of estates and other area. But after reviewing the draft marked "Final," and
dated October 3, 1977--and I'm hoping that that's the one that you have--and the three others that I've seen, I feel I must relay to you the feelings expressed by the Probate Judges, specifically concerning your Probate Courts.
First, to maintain an effective, accessible, peopleoriented court system, there must be a Probate Court with limited original jurisdiction in each county.
Some areas in this State have as many as eight counties in their respective judicial circuits. Some of these counties have as few as two or three lawyers, and a few eitn none.
With the Probate Judges becoming Associate JUdges of the Superior Court of that circuit, and with the new qualifications added, what would happen in that county if no attorney wanted the job? The chances are the other people that become Associate Judges under this proposal would not be attorneys either. Who would perform their duties? Your answer--the Superior Courts. Well, he's in regular session in Superior Court in another county. Your answer --continue the case. Well, our objective in this revisio~ of the judicial system is to create uniformity and make the courts more accessible to the people. But in reality

J'AI,E 16

we are going to further frustrate and confuse the average

citizen. You are going to cause delays in getting his

case heard, or having his day in court.

Two, with no Probate Judge in that county and the

Superior Court Judge two or three counties up tile road,

who does Mr. Citizen see concerning the many everyday

problems that arise such as mental health, alcoholism,

marriages, wills and estates, birth records? Who does

he go to?

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Three, by becoming Associate Judges of the Superior

Courts, we assume we will be under the supervision of the

Superior Court Judge. If that be the case, how much of

his time will be taken away from the courtroom presiding?

Will it necessitate more Superior Court JUdges in these

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circuits? Or will we be adding more work to an ovenvorked

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Judge? You and I both know that it's going to take a

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great number of new judges to fulfill this revision,

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which means vast sums of money.

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we be strengthening our court system or will we be in the'

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future creating a level of bureaucracy that will complete+

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ly ignore Mr. Citizen? This should be considered care-

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fully. Mr. Chairman, I am firmly convinced, the day we

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ignore or exclude people, is the day our judicial system

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fails. And that is exactly what we will be doing if this

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present revision is adopted. Five, we are being told that this proposal will not
hurt us that are in office. We will simply be having our names changed. Is having your court abolished, all original jurisdiction transferred to the Superior Court, your retirement system completely destroyed, the personnel employed by you under the jurisdiction of another official, which can and will happen--is this changing our name?
I am not concerned about me. I am concerned about my children and your children and generations to come. I'm concerned about destroying the court that is accessible daily, to every citizen. Not once a month, not every three or six months, but daily. Again, we are taking the courts away from the people, and not bringing it closer to them.
Six, Has any serious study been given to the cost of implementing this proposal? Has any true figure been determined? We don't want to make the mistake that some have made and had to stop trying some cases due to lack of, funds.
Seven, this is one area that is strictly personal with us and that is our retirement system. with no Probate Judge in a county, and another person performing the duty of the Probate Judge, and he not being a member of the Probate Judges Retirement System, will we be entitled

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to receive the revenue from that county that we are now receiving towards our retirement system? I doubt it. l'Ii th this occurring throughout the State, who will assume the responsibility for the presently retired Judges of Probate Court? Who will assume the responsibility of those that will retire in the near future? The State.? I doubt it. In other words, our system that some of our people have given their time and effort to for twenty years establishing a sound system, with no cost to the State, will be down the drain, and the remaining Judges forgotten.
Lastly, I do not want to leave with you the impression that we think our court is perfect. It is not. Yet within our group, with the cooperation of the Center for Continuing Education at the University of Georgia, we are having each year the best training session we think of any group in this State. Coupled with this, and our seeking of additional jurisdiction, we believe we can be a part of, and assistance in, relieving some of the burden from the Superior Court. To this end we offer our service.
~1r. Chairman, thank you again for the privilege of appearing before you. The remarks I have made reflects only our concern for our judiciary system and service to the people of our State.
Thank you very much.

f1- ----- -- --- --------------- -- --- --- ---- ----- ---_.--------. _. -

PACt; 19

MR. SNOW:

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Thank you, JUdge. Judge Phillips?

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Mr. Chairman, members of the Committee and other

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talk. But I have certain thoughts that I'd like to leave

with you this morning, if I could.

I have about five points I want to make and they'll

be relatively brief. I'm Taylor Phillips and I'm Judge

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of the State Court of Bibb County, Georgia, which is in
Macon, Georgia; observed in the legislature for some terms and also in the Senate, if it's still considered in the legislature. And I know a lot of you up here -and you have!
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a choire that's very arduous. In fact, I remember Judge Hill when he wasn't anything but an Assistant Attorney General. And he was a good one too.
Let me say simply several things to you this morning.!

We have a right working court in Macon in the State Court

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and in fact our Probate Judge was on vacation this week

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and, as such, I became Acting Judge of the Probate Court.

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So during the week, I tried one $100,000 automobile colli-:

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sion suit up in my court; one contract case that was very complicated; married one very pregnant girl to somebody else and sent three people'to the asylum for evaluation. And did certain other little things that were right numer-

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ous as far as court work is concerned. I tell you this simply to say that I don't mind any of it. I've enjoyed my service as Judge of the State Court of Bibb County and I think that, number one, we have to look in this particular piece of constitutional revision and I sat on the Constitional Revision Commission in 1964 and I know what they go through. And we had the same identical thing, almost, up then that is here now. And it never got out of the Commi ttee--this part of it.
Judges generally--you've got to look at a need. Do we have a real need for a revision, period, as judges. If those who aren't working would simply go to work, it seems to me that we would not have any need whatsoever. Now, I realize that there are differences in jurisdiction that are confusing to lawyers and perhaps there should be some equalization of jurisdiction. For instance, my court is unlimited in jurisdiction in personal injury cases. We try everything. We try 80% of the damage suits that are tried in the county there. As a result, a lot of the lawyers think I'm fairly adept at this. So they file their suits there and it takes that work away from the Superior Court and allows them to handle that tremendous workload they have of criminal cases that address themselves to the Superior Courts. So my first point is simpl that if some of the judges simply go to work, we would not:

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have any real need for any revision unless it was one of an equalization, perhaps, of jurisdiction of some of the courts and some other things that perhaps some other
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speakers may say and I don't want to take up time on that. Let me say this, as the reason for the present system
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of our judiciary. And whether that reason has run its course, I don't know. I don't think so. I think there's a reason and a need for courts where judges don't make as much money as Superior Court Judges because their job is not as arduous. I think there are reasons for judges who handle certain things and become adept in them where they can specialize in them like a doctor does and become very proficient in what they are doing. For instance, most State Court Judges have misdemeanor jurisdiction and that takes a tremendous workload off the Superior Courts. But you treat a misdemeanor-type case much differently than you do a felony- case. You've got a speedier court. You've got a lot of different reasons that you treat it the way you do. And there's a great validity for keeping separate courts, in my view, in the State of GEorgia. And much more so than it is to amalgamize them. I know a lot of people feel like we ought to amalgarnize all the colleges, you know, they don't want to have any black colleges. Well, there's a great validity, in my view-I'm a Methodist and we support a black college and we be-

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l'AGE 22
lieve it's good. We believe it serves a need in our State and in our community and we believe that the separateness of our courts serve a very definite need because you're going to become adept and proficient in what you're doing. Probate Judge--I'll tell you now. Even though I serve as Judge of Probate Court, there's no way , I could keep up with the volume of stuff that they have unless I went to their seminars and attended the things that they attend and become proficient in them. I go to mine--those we have in the State Court.
I might say this too~-that there's a validity perhap~ in a two-tier system of courts. This is something maybe you'll want to consider. I don't know. And I'm not goin~ to talk about that at any length except to say that there might be some validity in having the Superior Court and other courts inferior--I hate to use that wo~d--to the Superior Court, but still inferior in jurisdiction. But having more than one in that second tier. But this is something that you would have to address yourselves to and not me.
The basic philosophy that I feel is running throughout this--and I'm going to close with this one thought. The basic philosophy is this: When I was in the General Assembly, Arthur Bolton was one of the finest people I knew up here and had the privilege of serving with.

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Arthur was particularly interested in home rule and I guess he did more for home rule in this State than anybody else--any one man anyway. A lot of us worked on it and helped for it because we wanted to keep the government close to the people--want to keep things down on the level that we can have some control over them and some say-so over them. Home rule was the thing and I think this is the issue right here. We're either going to keep the rule of our Judiciary on the local level or we're going to abdicate our rights and send it on up to Atlanta and let it be run by a few select people. And I'm just not one of those people that believes that justice is going to be achieved for people if it's run from Atlanta or from Washington. I believe tile closest you can keep judges to the people themselves where they will have a direct responsibility and a direct input into what's going on, you will achieve substantial justice. And I would implore this Committee--this commission to seriously look into what you're going to do. I'm not going into the cost features; that's already been mentioned and some other things that I did intend to talk about. But I simply say to all of you that--go very carefully into what you're going to do to a very good system right now and keep one thing in mind--that if it's not broke; don't fix it. And I'm not real sure that our judicial system is

1'.'\(;1', 24

II

broke right now. lie might have some little things wrong.

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But let's change the little things instead of making

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some sweeping revision. This is the same thing we do

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with the Insurance Code, with the Health Code and every-

thing else. Instead of just correcting the things that

are wrong, we make a sweeping revision of everything and

nobody knows that you've done. Uniform Commercial Code

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is a typical example. Most of you who are lawyers know

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what we've had to deal with in that. In any event, gen-

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t1emen and members of the commission, I want to thank you'

very much for this opportunity to appear before you. I

will get something in writing to the commission so you'll

have it because my Solicitor wants to have something to

say. He was out of town today and couldn't come. I've

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got to go back for a wedding this afternoon. I'm going to stay as long as I can. Thank all of you. very much for your careful and judicial consideration of this Article.

11\ I MR. SNOW:

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Thank you very much, Taylor. All right. Dean

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Patterson has joined the commission too from Emory Univer~

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sity, who's also a member of the commission. Dean?

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21 I: DEAN PATTERSON:

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SNON:

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All right. Judge Pittard of the State Court of

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Clarke County.

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Mr. Chairman, members of the commission, I want to

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express my appreciation for the opportunity to be here.

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Like Judge Mitchell said, I found out about this hearing

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purely by accident and did receive yesterday in the mail

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a sununary--

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Let me make a clarification on this. We have--every

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meeting that we've had of this commission has been an ope~

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meeting. I think at the first meeting that we had, we had one reporter that came in; sat for five or ten minutes. Of course we recognize that what we are doing is

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not of tremendous interest to the press sometimes. But we really have not had the coverage that we should have had and we certainly were available for that coverage. And we've tried, otherwise, to get information out to

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various groups of interest. I do think that I owe you--

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this commission that our deliberations have not been

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better publicized.

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Well, Mr. Snow, I said that for the purpose of explaining to you and the commission, I have not had time

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PALE 26
sent rather elan extemporaneous remarks. And at the outset, I want also to say that I'm not against unification of our Bar. I really am for simplification. But I don't believe that this proposed constitutional amendment which you have here is going to accomplish a desirable purpose in the right way. It is desirable to accomplish the purpose but I don't believe that this is going to do it.
I will put my man-hours of study on courts in the Southeast--and I have not gone beyond the Southeast--and the effect of those in Georgia now, up with those of any member of this cornmission--any person in this room since 1964. I believe it was that year when will Ed Smith was President of the State Bar of Georgia. I began, because fo something that he said, to look into this matter. I do not claim to be an expert. But I believe that what you are proposing we adopt in Georgia will, as someone has said, create something of a monster. My reasons for this are several and can't all be expressed here today.
But one of the things that you've emphasized here is that this entire court system will be under the Suprem~
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Court. Now, I have nothing against members of the Supreme Court. I have nothing against the court itself. I think we have a good Supreme Court. But it's not the court and its members today of which I'm afraid. It's the court as it may be in the future constituted of which I

1''\(,10; 27

the majority and habitually--it looks like perpetually--

are going to be selected by whomever happens to occupy the

Governor's chair, that is, originally. And it is very

seldom that any judge in Georgia has ever--is ever de-

feated. Someone comes along to beat that judge--I think

that all of you can name or number, on one hand, perhaps

certainly on two hands, the numbers of judges incumbent

10

who have been defeated in an election in ele last thirty

to forty years, that is, of these courts--the Supreme

Courts, the Court of Appeals, the Superior Courts. I'll

even take it down further than that and say it's just geni

erally not done.

Most of our ~udges under the system you're talking

about would probably continue to be originally appointed

by whomever occupies the Governor's chair. They will not

be defeated in .an elec!::tion. It's just not done and we

just ought to recognize that when we start out. We talk

about nonpartisan elections. I'm very much for them. I

have tried very studiously for eleven years now to avoid

any type of political endorsements or any type of politi-

cal activity on behalf of any other candidate. And the

only thing I know that it has gotten me is a studious

effort on the part of those with whom I would try to deal

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PAGE 28 who are themselves elected officials in trying to avoid me and \..,ha t I have proposed to them. The main reason is that most of us who are elected officials are concerned--and I think wrongly--about who was scratching our backs when we were running. And if we don't participate in politics, as we are charged not to do by our Canon of Ethics, then we have to suffer the consequences and we do suffer the consequences. I can truthfully say that I have not endorsed, or attempted to endorse,or openly supported any candidate since I've become Judge. And I have written letters to Governors and asked them for audiences; I've written letters to Governors and asked them to consider matters and I have been told that, "Well, you' didn't support me." And I have been told that is so many words, as a matter of fact. "Therefore, I don't feel that I have any necessity of considering what you say." 'rhis is a one-sided street which we're traveling on. I'm very much in favor of nonpartisan elections. Whatever else comes out of the next General Assembly, I hope that will be one of them. I hope you'll make it such that elected officials with whom you have to deal, whether they be county commissioners or General Assembly members, Governors or whoever they are, will play that thing as it should be and recognize that one is nonpartisan. I see Superior Court Judges riding around with "Elect Jimmy

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Carter" stickers on their bumpers and still there after a year and a half or a year or so of carrying them around. And I see those people treated kindly when it comes to political activity and backscratching and it makes me wonder whether we are, in fact being fair to our judges. But I think that one of the main things about what you have here, 'if I read the mood of the people right, not only in my section but allover the State, people with whom I have ta1ked--and many of you know I have worked on this thing of court reform and judicial reform in some small way. Mr. Chairman, I've sent you information and I've sent others information. I've asked for support for this very type of thing you're trying to do. But the main thing is you are concentrating power here in Superior Court Judges.
Now, gentlemen, those of you who are Superior Court Judges, whether you like it or not--and this doesn't appl~ on an individual basis--the people are afraid of you already. And they don't want you to have more power. They want you to have less power. They want Judges of the State Court to have less power sometimes, but they are particularly afraid of Superior Court Judges. hnd I think that when you tell the people that you're going to give more power to Superior Court Judges--the inferred power is~ here at 1east--that they may, as you have put it in your

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language "select or appoint" the Associate JUdges. You have put it in here--or have inferred it--that they may select or appoint the Magistrates and these are the people who will be working under them. And when you give them that power or when you don't forbid them that power in the Constitution, you set them up as a single tier court to try the cases that come into this State. I think that the people are going to be wary of this. And I think that, rather than improve our system of--our judicial system, that is going to set it back. Because if this one is defeated, it will be a long time, in my judgment, before the people will be willing to approve another one.
Now, we have several reasons other than that. This type of amendment that you are proposing to the Judicial Article takes the power away from the people to select the judges. I'm a great believer in Mr. Jefferson's philosophy. Mr. Jefferson always contended that when you make the officers who serve the people close to them-when you give the people the opportunity to select their own, as he said at one time--and I can't quote him exactly--but when you divide the State into parishes or counties and the counties into wards or districts, then-and let each person in those wards and in those districts feel that he has someone who is going to represent his interests, then you're going to get close to the people

l'Al,Y 31

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and make them stronger and make our system of government

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stronger. I believe that very firmly. So when you start

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concentrating power, you're going away from principles

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Now, I have had the unfortunate experience while I 'v~

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been Judge of the State Court to also have to make a liv-

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ing practicing law. I certainly don't make a living for

10

myself, my wife, my five children, by practicing--I mean

by being a State Court Judge on a parttirne basis. I be-

lieve very firmly that we must have full time courts in

every county in Georgia. I believe those courts must be

sup~orted by the State, rather than by the counties. You

do not accomplish that in this proposed amendment. As a

practicing at~orney, I have learned that I can go into a

circuit which does not have a State Court and try misde-

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meanors and I could represent a misdemeanor client in those

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counties very effectively by going in and very quietly

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placing on the record a demand for trial under Section

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27-1901 of our Code--trial within two terms. That will

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sit there and, at the conclusion of the next term--which

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meanor after misdemeanor in these counties by doing it.

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And you're going to make it even more possible under \vha t you're doing here. Because the district attorneys do not --and this is not just ignoring the case on their part-but they actually do not have time to prepare and try the misdemeanor cases in these counties. And I don't care how many Judges of the Superior Court that you have, you're not in my judgment going to get enough, because of our reluctance to support the judiciary as evidenced by point six-tenths percent of our total State budget going to support the judiciary. I see no reason to think that you members of the General Assembly are going to change that, Hr. Chairman. And because of that reluctance of the State to support the jUdiciary, we're not going to have so many Judges of the Superior Court that we can expect these misdemeanors to be tried. And if we had a second tier--and if I may respectfully suggest that that tier might include domestic relations--a constitutional amendment might be presented and I think would be approved by the people, to take divorces and--out of the Superior Courts and place them in a second-tier of trial courts. And many of the Judges of the State Courts would object to that, I'm sure. But now that we have the so-called no fault divorces, there's no compelling reason that I can think why divorces should be relegated or restricted to the Superior Courts and even to the Supreme Court.

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But I'll tell you that I don't believe that the misdemeanors are going to be tried. I was very severely castigated by a member of the Court of Appeals and I haven't read his dissenting opinion because I was advised not to in view of my heart condition. But because I had the audacity, among other things, to tell my jurors that if we could stop crime on the juvenile level, that we would stop a lot of the misdemeanors from happening, and in my opinion if we could stop the misdemeanors from happening, we could stop a lot of the felons--or the felonies from happening. I believe that. I believe it very sincerely. What I think you're doing it putting all of these into a level of trial which has, so far, not been effective in the State of Georgia and disposing of them, except in those cases where we have a separate court ready, willing and able to try. Clarke County, unfortunately being parttime, we might be ready and we might be willing, but we're not able because of the fact that because of the pecuniary differences in pay that we have to spend so much
time practicing law, that it's very difficult for us. Anq
I don't feel any judge should ever be put on that spot to make a determination as to where we're going to let our income stop and our duty to the county or the State begin.
Now, it's going to be popular, under your amendment,

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to abolish this level of support. You haven't provided for continuation beyond present term of any of your socalled Associate Judges of the Superior Court. And since they are all supported on the local level, it's going to be popular among the county commissioners to abolish the support. And when the support is abolished, ~len the Associate Judge is abolished. ~ihen the Associate Judge is abolished, you're going to compound your error because of the fact that more work is going to be dumped on the Superior Court Judges which you feel can do this.
Now, I mention to you--and I hope I don't exceed my time, Hr. Chairman--but I mentioned to you that I have studied the constitutional provisions in surrounding States and, except for Georgia which I consider really has a good one if it were enforced, and one of ~le main things that needs to be enforced is the constitutional provision for uniformity. And God knows, the General Assembly of this State has not itself, followed the constitional provision for uniformity that we not only have had, but have had for year and year and years, not only in the present Constitution, but in those before it. And: we've got a hodgepodge and a mishmash of courts allover this state; they're not uniform; they're not simplified and you don't know from county to county what you're running into

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A few years ago I, along with members of the State Trial Judges Association and Solicitors Association--I had the privilege of helping to write a bill which was adopted by the General Assembly to, at least, make our State Courts uniform in many respects. I feel, in that incident, it was the only exception in our Constitution for the so-called city courts of Savannah, Atlanta and others of like nature which might he created. But you've got--there's no need for me to bring it to your attention specifically--you've got it so that the County Commissioners in 1975 condemned this practice of lack of uniformity and asked you to establish some uniformity. But they didn't ask you to go as far as you are prepared to go with this. I think that the worst system of courts that we have in the surrounding states is Tennessee. Next, I would say South Carolina, chiefly because the fact is that the General Assembly of South Carolina domin~ ates and dictates who the Superior Court Judges are going to be. And under your proposed amendment, Hr. Chairman, this could happen in Georgia. And they have had one terrific fight, as I'm sure many of your are aware, in South Carolina because of the proposed changes or the recent changes that they have made or propose to make. Frankly, I haven't read the last account. SO therefore, I don't know whether they're still under controversy or

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not. But, nevertheless the last time I ready it, it \vas still in controversy in South Carolina. Hembers of the General Assembly were jealous of their prerogatives. Many of the Superior Court Judges in South Carolina were former members of the General Assembly and well they might be because their colleagues elected them. liTe don't want anything in Georgia like that. You say nonpartisan election, but you don't say who's going to do the electing.
Then next, I think, is Alabama and Alabama has more or less recently changed ti~eirs. And next after that is Florida. And Florida has a one that's somewhat close to the one you have, where they have County Court Judges and they have Superior Court Judges and that's it as far as trial courts as concerned. County Court Judges there see~ to be similar to what you want to establish in the form of Magistrates in Georgia. I think that the best, by far, is in North Carolina. Let me say that I'va talked with judges and lawyers and laymen in these various states and I have heard their complaints; I've listened to their praise of their system and I don't believe that there's any system in the Southeast that's any better than that of North Carolina, which is a three-tier system, composed --and they created a Court of Appeals when they amended their Constitution back in the 60's. And they want from their old system into tl1e new system on a gradual basis

rather than just chopping off here as this seems to do, to

me, and becoming effective, as you've put in here, upon

3

the adoption of the amendment ,according to its terms and

provisions. They've worked it out in such a way that the

Superior Court is the chief trial court; the next leve is :

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what they call the District Court and has no overlapping

jurisdiction with the Superior Court at all. And under

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pose, rather, in your amendment. But I believe, as I recall--and I have talked about this thing so many times I can't remember what's my own idea sometime and what I got from somebody else--but, as I recall, in North Carolina when it comes to appointing Magistrates, they're nominated by one group and approved or selected from the list of nominees by another authority. And I wouls suggest if you're going to have ~1agistrates and if, perhaps we could talk you into a--some more levels of uniform courts throughout this State--that maybe Magistrates ough~ to be nominated by the Superior Court Clerks and then named by the Superior Court Judges, but be under the authority of the District Court, if you follow the North Carolina system, or the State Court, if you should adopt the second tier of trial courts in Georgia. But none of these jurisdictions overlap. And you can do that just as

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PAGE 38
easily as you can have Associate Judges. You can do it just as easily as you can have Superior Court Judges as the supreme authority in the trial courts. They have what they call a General Court of Justice in North Carolina and all courts are members of that. including the Supreme Court, their newly-created Court of Appeals and their trial courts on all three levels.
~'Je now have, as I said, uniformity in our Consti tu" tion. It's been long ignored and I think that if we would just proceed with what we already have, and the General Assembly itself, would toe the line and see that there are no special courts created unless they're uniform, that we can do this
Now, one or two last things that I would like to mention. One is that I have given up my law practice, by and large, in order to be a Judge of the State Court. I didn't do it intentionally. I was encouraged by 90% or more of the Bar of Athens at that time to be a candidate for Judge of the State Court. I defeated--well, the incumbent defeated himself. It was not my doings. And I i
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did it because I was asked to do it, not because I had any great desire to be judge of that court. But it was time to make a change. People believed that. And people--a sufficient number of people showed it by the fact that they voted for me. I'm not bragging by that, but I'm

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saying that for this reason, a lot of people in Clarke

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County and that area feel that, once you get to be a

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judge, that you no longer practice law. My law practice

declined by leaps and bounds. I stuck with it, thinking

5

that maybe things would improve and, again, I'm not

bragging, but I paid the taxes on more money last year

than a Superior Court Judge, but there have been years

when I didn't. And my practice, when I became Judge of

the State Court of Clarke County or, then, the City Court

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of Athens, was sufficient and comparable or better to

that of a Superior Court Judge.

So I want to get away from this thing of parttiming

activity. I hope that maybe the General Assembly will

pass a local bill this time to create a fulltime court in

our county where I can make a decision either to re-estab

lish my law practice or go to a full time judgeship. But

the point is that there are judges sitting out here now

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who have earned certain retirement rights; there are cer-

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tain solicitors out here now who have earned certain re-

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tirement rights, and under this constitutional amendment

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which you are about to propose, these will be wiped out.

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God knows we've got durn little retirement as it is under

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the General Judges and Solicitors Retirement Act. He're

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nowhere near the Superior Court Judges. I can serve for

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twenty years as judge of this court and retire on $523 a

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month. And that's certainly not anything comparable with

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that of other retireMent systems in this state. The

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General Assembly has been unwilling--the State Courts have

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been, pardon the expression, somewhat like a bastard child

at a family reunion and we're going to have more of it

under your proposed amendment.

Another thing--I think that if you do work out a more

equitable system than that which you're proposing, that

there ought to be, for those who have made sacrifices--and

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I feel that I have but I'm not ta~king solely about rny-

self or for myself when I say this--there ought to be some

type of grandfather clause in there so those Hho entered

into a judgeship or a solicitorship with the right to

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practice law and do stay \-li th this thing and do earn the

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right to retirement. And then enter into tile practice of

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or judge and tileir retirement. Those who enter into it

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knowing full well that they are going to be restricted, I

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don't include. jut I do feel that those who have earned

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this right to retirement have vested rights which neithet

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the General Assembly nor this commission nor the people of:

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Georgia have a right to take away from them.

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Thank you, Judge. Let me make just one statement relative to retirement and some of thes~ other facets that

you made reference to. We certainly have, throughout

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our deliberations been very much concerned about any re-

tirement system that is presently in existence in this

State and certainly are not in any way seeking to change

anyone's rights under the retirement system and certainly

can promote legislation to continue and to allow anyone

to continue to participate in any retirement system re-

gardless of what the name might be changed to. We're not

affecting any retirement system here.

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Judge Short?

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Mr. Chairman, there's three or four people have already spoken from our association and I believe Judge

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Smith would like to, and I think, as far all from our--there's more names on your SNOW:
I've got several other names, Jack.

as I know, list.

that'$

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That's correct. I pass at this time.

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Well, I'm going to go through the list and those

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that do want to come forward, though, do so.

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That'll be fine.

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Let's see. The Chief Judge of the State Court of

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Fulton County?

3 JUDGE CAMP:

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I pass, Mr. Chairman.

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Bil1--Judge Alexander?

JUDGE ALEXANDER:

I pass, Mr. Chairman.

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All right. Judge Henley?

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Yes, sir.

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Superior Court.

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Mr. Chairman, members of the Committee and fellow

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Judges, I probably am the only Superior Court Judge or

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maybe the only one--I think there's one other--that's opposed to this unification. In August of this year I had the pleasure of attending a seminar in Sea Island where we heard from a Judge of the Superior Court of 111inois--ti1e State of Illinois. I don't think they call them County or Circuit Judges. And he turned me a little cold on unified court systems. I think Justice Hill was there that day. This man, under their unified court

t' .\c; iL 43
I r~--:~stem. was placed in the position of being sent around

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the State at various times by the Super Judges, as he

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called them--whoever ran the unified court system--and

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if they had a sudden dislike for this man, they could sen~

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him--he referred to as South Chicago, which is a bad place

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to be, and leave him there for some months.

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Now, as the only Republican Superior Court Judge in

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C~orgia, I'm frightened of this bill. I went to the seminar. They wouldn't even let me in the cocktail party.

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And what's so bad, I dolt drink. ~hey weren't afraid of me drinking up their booze. This is a dangerous system and I've heard in this room today some of the thought that appeal to me. If something's not broken, why make an effort to repair it? I just don't understand this.
Now, I'm in my second term as a Republican. I call myself sort of a Republicrat because I think more like a Democrat than I do the Rebpulicans. And I agree that maybe our system needs some changes in it. Justice Hill

19

just ruled on a case that I was reversed in and it made a

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lot of sense. I liked his dissenting opinion when he

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said that there are problems in the courts and the people

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are a little dissatisified with some of the actions of

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the courts. And that particular case was one of ti1e rea-

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sons that the people are dissatisfied. And I appreciate

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your agreeing with my stand in that case. We need some

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PAGE 44 revisions, but to unify the courts and set up a super court to control all the other judges, seems like we're really putting ourselves in the position of setting up a dictatorship to control everything. Now, I kind of got amused when some fellow spoke a moment ago and he said, "You know very seldom do we ever see a Judge that gets in that gets opposition." Have you ever heard of DeKalb County, sir? Everybody gets opposition every time. Now, if we abolish all these courts, I want to tell you that in every county in this State, every Superior Court Judge will have opposition. Because the Probate Judges, the State Court Judges, the Magistrates--all of them have a following and they will be vying for the Superior Court Judgeship, each and everyone of them. Which I don't blame them; we have got a pretty good job. We only work ten or twelve hours a day and it's not all that bad. And some of us--we don't have to practice law. We'd like' to but they won't let us. So to answer that question about Superior Court JUdges who have no opposition. They will have opposition under this bill.
Everything else has been said, I think, that I'm opposed to and there's not any sense in me taking up any more time. But I'd like for you to take a good strong look--all the members of the Committee--at the unified-so-called--court system of Illinois and talk to some of

l'A(;E 45

the Judges who are in that State before you finally get

your final draft of this constitutional amendment. I

think it'll open some eyes that need opening. Thank you

very much.

SNOW:

Thank you, JUdge. All right.

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I pass, Your Honor.

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Judge Belcher?

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All right, sir. Judge Hendon?

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Mr. Chairman Snow, members of the Committee, inter-

ested Judges and interested members of the public and the

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press. I might say to you also, Hr. Chairman, I received! my first copy of the notice of the proposed revision of this Article of the Constitution on "vednesday of this week. Now, whether that's my fault or someone else's fault is relatively unimportant at this stage, except to say to you, that is as a matter of fact the first real notice that I had.
Now, mostly what I have to say has already been said. But my position is, of course, that I am unalter-

ably opposed to this particular piece of legislation. I

think that this Committee needs first to look at whether

there is, in fact, a real need for the revision of the

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Constitution insofar as the judicial system itself is concerned. I am reminded of a remark that was made by one of our former Governors. We were talking about an improvement of the penal system in this State. He said, "The only way we're going to improve the penal system in this State is to get a better class of inmates." NmIT, it may be that we need to get a better class of judges who are in fact administering our laws in our court system. It may be well that the legislature should look to a means and method to secure this. My only interest in this bill if of course as yours is--to obtain a method whereby the law can be speedily, justly and fairly administered to the public. I do not see in this proposal where any of those needs are met. The best way for justice to be administered is promptly, by competent courts The system that we have in the State today breaks down certain specific areas to be administered by courts. And the people who are concerned in those particular areas can get, and do obtain, fairly prompt, qualified adjudica~
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tion of their problems. This bill would destroy all of that. Something was !
alluded to about Superior Court Judges wanting more power!. Well, in our particular circuit, the Stone Mountain Judicial Circuit, we have all the jurisdiction that we can digest. And in that particular circuit we are assisted

P.-\GE 47

by one of the most able State Court Judges in the State,

along with his associates. We have an excellent Probate

Court system. We have an excellent f-1agistrate' s system.

I do not perceive how this body believes that unification

--combining all these courts under one head--can improve

the administration of justice. Now, I am not so naive

that I cannot look through and perceive what the overall

objective of this particular piece of legislation is.

In my considered judgment, it is to centralize the

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control of the courts in an autonomous body and destroy the independence of the lower courts throughout the State. And in effect, take away justice from the people. Any change that should be made, should be made with a view to returning the courts to the people and to enforce and retain justice administered by peers of the people.
I endorse wholeheartedly the position stated most eloquently by JUdge Mitchell and by Judge Taylor Phillips

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Thank you for your time.

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Thank you, Judge.

JI Ii JUDGE CARLISLE:

All right.

Judge Carlisle?

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Pass.

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All right, sir. Judge Smith from Hall County?

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f\lr. Chairman and ladies and gentlemen of the commission, my name is C. Winfred Smith and I am the Judge of the State Court of Hall County. And so as there \.,7ill be no question as to what my position is, and for the lady that's taking this down on the record, I want it known for the record that I'm unequivocally and unalterably opposed to the proposed legislation that is now to amend the Constitution of this State in all phases.
My position is--and I'm talking off the cuff. I've got a few notes here, but I don't have a written note. I could write you an epistle, but I don't think you'd have time to read it. And I would like to state this at this tirne--that the State Courts has a place in this State . They have served well through the years. Now, I agree with one of the previous speakers and I have always been a strong proponent that whether you have a court that tried dogs or whether you have the highest appellate court, that you should have a full time Judge and a fulltime Solicitor that operates. And I feel that any time that a parttime Solicitor, which mine happen to be, but I'm a fulltime Judge, but under our retirement--I know we got into it but I'm just going to bring this out, just briefly. If I retired today at 65, I would draw $543 and couldn't practice law. But Judge Pittard, a parttime one over there, could do it and he could still practice law.

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1'A(;1-; 49
That's the difference and the distinction. I agree with Judge Taylor from Bibb County and I do
not ca~t any aspersions or try to bring any personalities whatsoever into any Judge. But if some of the Judges would get off their rear end and go to work, like he said, we would not have the problems that we have. I'm not casting any aspersions on any of the courts in my county. There are four counties in my circuit--in the Northeaster* JUdicial Circuit--we have two Superior Court Judges and last year in Hall County, I closed 7,000 misdemeanor cases in Hall County alone. And the four counties together, with two together, did not close that many altogether. In several cases we're unlimited. We're one of the few constitutional courts that is left in the State of Georgia. I have tried cases worth ten million dollars --malpractice cases. Next time the case might be running a red light just unintentionally. This is what's happen-, ing.
In this bill as I very cursory made a cursory observationof it this morning--first opportunity I had to see: it. I do not actually see--it may be in there--just exactly what an Associate Superior Court Judge is. Now, you know, if you have a multi-county or multi-court Superior Court Judges, they all have the same jurisdiction. They all have the same jurisdiction. No one can

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tell anybody else what to do. You have a Senior Judge and he can do all the administrative work. vIe 11, this looks like what this is trying to do is set up a bureQUcracy within the judiciary itself. In other words, the silk stocking boys, the blue ribbon boys and the bO\'l-tie boys that are sitting in their office and can't even find the handle to the courtllouse is sitting back trying to tell us that's involved, in the trial work how to operate the courts of this State. And yet we can, today, sit right here and discuss Hashington all we ",;ant to. But thank God we've got this process that we have here now that we can get up and express ourselves before you ladieS and gentlemen and you, Hr. Chairman, as one of the processed of giving our ideas about this thing.
I agree here with my very good friend, JUdge Mitchell from DeKalb. Yes, for years and years I've opposed the way we put these constitutional amendments on the ballot. Why--as they say, a Philadelphia lawyer or a firm of them from Washington with Clark Clifford and all the rest of tllem couldn't even tell what was in that amendment if they looked at it. And I'm not casting any aspersions again. But why put all the authority in the Supreme Court of the State of Georgia when this is administrative we're talking about, ladies and gentlemen of the jury and Mr. Chairman. This is administrative. They re

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PACE: 51
running over all these Judges over our shoulders when they ought to be deciding the cases that's being carried up for review and spend on the law. This is my opinion and I don't apologize for it. I'm emphatic about it and I believe they ought to spend more time settling the cases for review than they do at administratively and that's what it's talking about. And I just get amused every time I hear it. And I've been here this morning and I've listened to previous speakers. I've been to certain seminars with my brother lawyers and judges and solicitors. And, you know, it's just amazing. Even in the legal profession, we can't even agree on what the proper wrod is, Mr. Chairman. vfuether it ought to be uniform, unified or simplified court system. You know, that's amazing. We don't even know what we're doing but yet we're going to amend a Constitution, purportedly here~ that is going to last for some years to corne. You know, it's amazing . The Constitution of the United States--andi I maybe off on a figure, one or two because my son, he graduate summa cum laude but I just graduate oh Lawdy. And I may not be able to add two and two, but I'll say ths --that I cannot see doing away with the State Courts. We have a place. He ought to be put on a fu11time basis-every JUdge. The State ought to pick up the tab and also the Solicitors ought to be. I think there's a conflict

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of interest, Judge Pittard, when you represent anybody in my court because you're an elected official by--and you're representing the State. And when you come to Hall County and represent a defendant before me in my court, you're representing the other side and yet you're an elected official of the State. And I don't say that to cast any aspersions. But we're looking here and it says Associate JUdges. But it doesn't say what an Associate Judge is. As my good friend down in Bibb County says, you've got to be the Ordinary part of the time; you've got to be the Judge of the State Court part of the time and if some of the Judges of the Superior Court decide they don't want to try some criminal case, they'll reduce it to a misdemeanor and enter an order and send it down to you. And say, "1 1 m sorry. I don't want to try it."
But this is what we've got to think about because we --the United States Constitution has only been amended some--what is i t--twenty-seven or eight times? h'hat is this ERA, ladies? Is this about the 28th Amendment? Twenty-seventh or twenty-eighth Amendment in over 200 years. How many times has the Constitution of 1945 of the State of Georgia been amended? Some nine hundred and something times since that time in less--in about thirtytwo or thirty-three years. If \'le' re going to do something:, let's get something thatis going to carry through from now:

PAG.E 53

on without having to, every time the legislature meets,

come in with some type of constitutional amendment. As

they say, that they put the flower out there on the ballot,

but the voter ,_ can't even smell it when he goes in to

vote because he doesn't understand it. And I feel very

strong that we should keep the State Courts. Uniformity

and election by the people--we should be the trailblazers~

We should be the protectors of the people of this State.

We should lead the way as far as elections are concerned !

and the freedoms of this country. vfuy, this business of

--I'm not afraid of any of you. If any of you move to

Hall County and want to run against me next year for the

State Court of Hall County, I'll tell you now you'd bettet I
get some good running britches and shoes. I don't mind

running against any of you. And anybody that wants to,

the water's very fine up there. But the very idea here

of running fourteen elections here to see how many you're

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going to have. Are you going to get more "yes" or "no"

19

votes? And then if I get more II no " votes, we're going to

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have to have another one to see who's going to get electe4.

And maybe between there, if we're running out, the Governdr

may want to appoint somebody on an interim until we can

get somebody in there to hold it. vfuat's going to happen

to the business if they say "no" during the primary and

the general election? This is not in here. I think it's

very ,."rong. I think this here is something that we should

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look it. I realize, gentlemen, that I've expounded pro-

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bably a little longer than I should have. But I realize

4

each and everyone of your position on this Committee.

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I think that you will be fair in this. But I think one

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of the fairest things you can do is leave it off the

ballot on November General Election in 1978 until this

thing is certainly perfected in the right way. I'm sure

-ef course it's hard to rebut something. All we've heard

III

up here this morning is rebuttal. \'7e haven't heard a

single proponent of this bill speak today. And, you know,

it's sort of hard to speak, you know, just against some-

thing when you don't have something really other than the

document itself. But I haven't seen a single proponent

stick his head up or her head this morning for this par-

ticular piece of legislation. Mr. Chairman and members

of this commission, I think this says something to you.

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If this is.a public meeting, which you say it is, and I

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concur and agree wholeheartedly, then there should be some

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proponents here speaking for it. It's just like--and

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we've got two Justices here and I hope they will agree

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with my interpretation of the law. I did get reversed;

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I just talked to Judge Smith about it, in the present cas~.

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But I hope ~~ey agree on this. That, you know in certaini

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traffic cases, that if you do Dot have a witness present ;

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for the prosecution, that then that is supposed to be

taken into consideration and the trial judge should take

cognizance that -the absence of that witness would be more

favorable to the defendant than to the prosecution for

the State or for the City. And if we don't have any pro-

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ponents here today, then something is "lrong. I think you

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should consider that if we had some llere, that they would

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be more favorable to us than for them.

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Ne just haven't said anything yet. We're listening

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to those who are opposed at this time.

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Well, you're on the Committee.

I thought you were

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supposed to listen to both sides and not be a proponent

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I'm not being a proponent.

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I'm not trying to be facetious, Mr. Chairman.

SNOW:

I understand totally. I just wanted to clarify the

fact that many have been working on the document before

you. And of course it does represent what we are tenta-

tively proposing so we would stand as proponents of the

tentative draft. I'm listening to you folks to try to

corne up with additional language.

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JUDGE GEORGE T. SMITH:
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Not everybody necessarily would on this Committee,

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Mr. Chairman.

JUDGE NINFRED SMITH:

I'm fixing to stop And I'm fixing to sit down very

briefly. But I think this, and I would like to disagree

just a little bit and respectfully submit, Judge Pittard,

that you might have talked to all these people in the

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other states around and you may like the North Carolina

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or Alabama system. But I like the Georgia system that we

havenm"l and until we get something that's improved

better than \"le've got now, I'd rather stay in the status

quo and not even attempt to change it. We might need

some new parts and we might need a little oil in the

machine, but I'll tell you now that ,...e don't need a whole

new machine, Hr. Chairman and members of this Committee.

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I think very definitely that we should retain what we have now. And I am for one thing, and that is to make each State Court Judge a fulltime Judge and a State Court Coli~ citor a complete, fulltime Solicitor. If I had one last thing, and this is--that if I had one suggestion, it would be to--it would be this--that I would be in favor of a statewide traffic court, which ,",ould relieve the State Courts of traffic and let them take care of the more serious misdemeanors. This would be the only difference

that I would see. Other than that, I would have no sug-

2

gestion except to leave it like it is. Thank you, 1>1r.

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Chairman and members of this Committee for listening to

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me expound on this subject.

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Thank you, Judge. Judge Followill?

7 Iili JUDGE FOLLOv~ILL:

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Ladies and gentlemen of the Committee, !~r. Chairman

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and all others who are kind enough to sit here and listen

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to these remarks, I'm Ken Followill from the State Court

of Muscogee County, Judge of the Court. And although

most of my predecessors up here have stated that they're

opposed to the bill in one form or the other. Let me

say that I'm opposed too, Mr. Chairman, but I'm alterably

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opposed. I haven't had enough time, like many of the

rest of the people here have not, to really scrutinize

the bill or even the summary which I only received last

Thursday. But I didn't really intend to make any remarks

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up here. I came to audit because I thought by listening

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I could get a better understanding. And I must say that

21

it's been worthwhile so far.

22

I'd like to make just a couple of comments, if you

will allow me to, though. ~ihen 1--1 not only speak now

as a Judge, but as a former Solicitor of the Court. And

something that I don't think has been pointed out quite

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PACE 58
in this fashion, is this. We've been talking about responsibi1ity and responsiveness to the people. I think it would be a mistake to abolish the office of prosecutor for the misdemeanor offenses in this State. And I'm not speaking for the State Court Judges nor the State Court Solicitors nor for the District Attorneys. But I can just imagine what a burden it would be upon the elected district attorney to have to put up with the administrative details that go along with handling not only' the felony cases but the misdemeanor cases and, in. our jurisdiction, the appeals from Recorder's Court. It's difficult to have a phone conversation that the big town Solicitor has that usually starts out like this on the other end: "Kenneth"--because they always you by your first name, you know--"You don't know me but and the other thirty-four members of my family voted for you. And we have this brother-in-law or we have this yardman or we have this neighbor"--aIid then they proceed to tell you what they want you to do about it. And they don't want to speak to the Solicitor. They want to speak to the guy they voted for or didn't vote for. If the district attor~ ney had to get all these calls and fool with all these things, he wouldn't have time to attend to the proper duties of his office.
Now, that's just a small thing perhaps. Bu~ I think i
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1'Al.1<.. 59

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thing--I wonder.if the Committee considered this. Should the District Attorney be included in the Judicial Article? l'fuen I was Solicitor--and again, pardon the personal expression--but I thought of myself as a judicial officer. I think he has changed over the years and I think that th$ prosecuting function is an Executive function and I believe it's so stated in the united States Constitution that the Attorney General and the united States Attorney are members of the Justice Department, which is an Executive Department. Perhaps I'm wrong. But do they belong in the Judicial Article? On the other hand, the Sheriff, we regard as probably an Executive officer, but most of his duties are spelled out in the Code of Georgia as having to do with the courts--execution of . the writsof the court and orders of the criminal courts and so forth. Does he perhaps belong in the Judicial Article? I don't : know. I don't have the answer to that.
I don't want to echo what the other people have said, but I do feel that, unless I misinterpret this, in the multi-county circuits where'you have a very large urban county and the others are more or less rural, are you not afraid that perhaps this will lead. to a concentratio of power in the more populous county in each one

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}'Ai;b 60
of these circuits if there are not sufficient members of the Bar to qualify to act as Associate Superior Court Judges, for instance, in these other counties? tvou1d it not possibly 1ea~ to a concentration of the judiciary in the larger county? And again, where judges must be responsive to the law, they have a certain responsibility to be responsive to the people. That's not very good terminology but Solicitors of course must listen to the people. District attorneys decide what they ought to do. Now, the Judges themselves, while they're not trying to run any popularity contest still need to understand how a particular person should be sentenced in a county other than the one in which they reside because sentencing responsibilities do vary, I think, between urban counties and rural counties. l'iThat is the proper punishment to give this defendant to deter him from committing this type of offense in this other county. And I think that we need to prevent the concentration of the judiciary in the larger counties.
I fear also there's going to be a loss of judicial talent by doing away with the State Courts. The parttime judges, unless they're given adequate compensation and retirement to become full time judges, are simply going to resign their jobs and not offer for election. And this again could lead to a concentration in the larger countie~

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wide constitutional amendment, the reason we have these

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various courts that are provided for by the General Assem-+

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bly, such as the State Courts, is because the need arose

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somewhere along the line for another forum. Ostensibly, I think the State Court were created--many of them were back in the 1880's and '90's--was to take some of the burden off the Superior Court Judges in the circuit and generally speaking, there's only one judge per circuit. I think probably a better reason was that oftimes tilat particular judge would be at loggerheads with the citizens--certain of the citizens in the circuit and, more particularly, certain of the attorneys of the circuit and this would give them another judge that they could file their suits in. And if you looked back over the Georgia laws over the years, you've seen where the State Courts have abolished or county courts have been abolished, other types of so-called inferior tribunals--that's the terminology used~ lower courts, if you will--but they've been recreated as other forums perhaps. The point is this. I think we ought to leave it up to the local citizenry to determine what needs its circuit has for the various type of courts and not try to do it all at once to establish uniformity in the courts. I think the wisdom

PACt. 62

of the local citizens, guided by local Bar associations,

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would probably do a much better job of realigning the

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court systems where there might be overlapping functions

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than to do it in this manner. I thank you for your

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patience.

!, MR. SNOW:

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Tllank you very much, Ken. All right. :Hinson

McAuliffe, the State Solicitor of the State Court of

Fulton County.

itl HR. HCAULIFFE:

Mr. Chairman, members of the Committee, on Thursday ,

--and I got my notice of this a day ahead of what some of

the others did, I took my little booklet showing the

officials of the State of Georgia and just by way of

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taking one circuit--I happened to select the Griffin

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Circuit. And under the proposals of this Judicial Articl~,

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what we would end up with if it was to become effective,

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we would have Andrew Whalen and Ben Miller in the Superior Court Judges. l~e would have Claude Goza, who is the Juvenile Court Justice of the counties down there and John Goddard, who is the State Court Judge of Spalding County as Associate Judges and four Probate Court Judges as Associate Judges. We would have R. J. Adams, who is the Small Claims Court Judge of Pike County as Magistrate.
We would have John o. Clements, who is the Small Claims

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R. Davis, who's the Small Claims Court Judge of Upson County as a Magistrate of the Superior Court. And then, possibly, a hundred other Magistrates of the Superior Court, taking into consideration the fact that, as I read it, this Judicial Article would make all Justices of the Peace, Magistrates of the Superior Court.
As I go through this Article, I corne to the conclusion that, even though it might not be desirable to name Justices of the Peace as Magistrates of the Superior Court in many ,.,rays, that this as I see it, is about all that this Article does. It changes some names of courts and it changes the title of certain public officials who hold offices in those courts. There's one other thing it does, however. And that is that it removes from office--effectively removes from office, the Solicitors of the various State Courts. Now, those of us who have been in law enforcement--and I have been in law enforcement longer than I care to think about it because it means that I'm getting on up pretty well in age--but I've been in law enforcement for twenty-seven years now. And I know of no man in law enforcement who is dedicated to law enforcement who does not feel that overlapping enforcement agencies are the best and most positive way of seeing that the lav{ is enforced. By way of example, if you

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have--and this is not nice and I understand this and I am not casting aspersions on anybody--but if you have, for example, a Sheriff of a county who is subject to taking bribes, it's a darn good thing that you might have a Police Chief who also can enforce the law in that county. As was pointed out, I think, by Mr. Rivers earlier, you have a situation or have had a situation in the State of Georgia where a district attorney was doing that very thing. And what situation \'lould you have had if you had had a district attorney, for example, who \'las subject to taking bribes and not prosecuting any people in the racketeering business. And most racketeering crimes are misdemeanors. And I aM particularly happy, as a Solicito~ and one charged with prosecuting persons for misdemeanors; that the district attorney has concurrent jurisdiction in my county. And if I do not prosecute persons who engage in misdemeanor offenses, that he has got the right, the authority, the duty and the responsibility to do so.
And so what I am saying, in effect, is that it is, in my opinion, a very good thing to have in every jurisdiction at least two prosecutors who could be effective in the area of prosecuting people engaged in the rackets and the racket business. Now, as I say, in this Judicial Article, it provides that the Associate Judges shall retain ~~eir present jurisdiction unless changed by law.

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Now, the truth about the matter is, under the Constitution of the State of Georgia as it now exists, the General Assembly can change those jurisdictions if they care to do so. And for that reason, as I see it, this Judicial Article is not necessary. But, as someone else pointed out, the main thing that we need in ele State of Georgia, in my opinion, is not unification, hut it is uniformity. We have a situation in the State of Georgia, for example, that an attorney in Atlanta, Georgia, was hired to defend somebody in Newton County or hi~ed to defend somebody charged with a traffic offense, for example, in Spalding County, he wouldn't know where to go. He wouldn't know even what court to go to many times because in all counties in the State of Georgia, they're handled in so many different courts. For example, in some cases, they're handled in Probate Courts; in some cases, they're handled by I4agistrates ,,,,hich are already set up by la"l; in some cases, they're handled in the State Courts. And the lawyers are confused and not knowing many times even what court to go to to represent their clients.
Now, there was another thing in here under this Judi~ cial Article that required the Superior Court to hold court at least twice each year in every county in Georgia. Can you imagine what a situation this would create if, for example, there was some steps taken toward uniformity

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and misdemeanor cases or traffic cases were not tried or not capable of being tried but twice each year in some of the counties of Georgia?
And so I--e1at's the reason that I say, and have fel t for years and year and years, that ~"hat we need in the State of Georgia more than unification of the courts is uniformity of the courts. And the only way that I know of that that can be achieved is for the General Assembly, in the absence of a constitutional amendment or with a constitutional amendment, to set up a two-tier court system, preferably in my opinion a two-tier court system --one Superior Court, the other the State Court and prescribe the jurisdiction for those courts and provide that in the state Courts if one--if the county cannot provide for a State Court of their own, that they be set up on a circuit system just as the Superior Courts are. And I think that this, in the final analysis, is the best way for us to effect change in the judicial system of the State of Georgia.
It is my opinion that we need uniformity instead of unification. It is my opinion that unification takes away the responsiveness of the courts to the people because it puts it in one central head. It is also my opinion that uniformity guarantees a more perfect representation of the: people. So I would leave you with this thought primarily.

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That above everything else that we need in this State in the way of judicial reform, it is uniformity and not unification. Thank you.

4 I HR. SNOl'l:

Thank you, Hinson. All right. Solicitor John

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Thompson of the State Court of DeKalb.

" MR. THOHPSON:

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Mr. Chairman, may I address my remarks from the floor?

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Hr. Chairman, ladies and gentlemen, the Revision Coromi ttee

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I'm John Thompson, Solicitor of State Court of DeKalb County. Unfortunately, the proposal addresses itself to me and my loyal and faithful employees in a personal nature. I regret this. I am unalterably opposed to any revision that would abolish my job and my employees' jobs.
Ne--my employees heard about this meetinq this morning by the grapevine. And naturally, it put them in a complete state of panic. As I said, it's personal and I regret it. Hy employees came--my employees and all em-

ployees of the State Court of DeKalb County are under the

':1

State Employees Retirement System. I have employees who i

") ., have dedicated themselves to serving the people of DeKalb

23

County. They've made a career out of their jobs. Out of!

a clear blue sky, tlley think not only are they going to

lose their jobs, but they'll lose any pension rights they

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may have. One employee has sixteen years on her pension. She is not vested. If she loses her job, she loses her pension rights. Perhaps something may be considered along the lines to consider these matters.
The pension doesn't address itself to me in as im?ortant a nature as it does to my employees because I am reaching the age of retirement. But it seems unjust and unfair to have--and I have eighteen--loyal and dedicated employees and be hit out of a clear blue sky with a loss of pension rights and a loss of their jobs. My people are dedicated. They gave up any other personal careers they may have to come into my office and to serve the people of DeKalb County.. Apparently the present system works fairly well in DeKalb County. Because we have very. little opposition to any of the officeholders there. The people must be satisfied. We must be doing a creditable job.
As I understand the proposal, it will make State Court JUdges, Associate Judges. My information discloses that most of the State Court Judges, or the majority of them, are parttime. If you bring them in as Associate Judges, ,.,i3:1 you require them to serve full time and receive parttime compensation? I do not believe, in my considered opinion, that any individual will serve fulltime and be compensated parttirne. The legislature in its

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wisdom in my considered opinion, a few years ago created

what I would have--all evidence would indicate to me a

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monstrosity. I do not believe that that monstrosity has

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been corrected at this time. As I understand the proposed

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bill, we would create another monstrosity in the judicial

11

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system. It would be top-heavy; it would be unwieldy; it

would be impractical and it would be um'1orkable.

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I had the occasion yesterday to visit the little

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County of Pickens, which perhaps has a population of ten

to

to fifteen thousand. They had just completed the Septem-

ber term of the Superior Court. They extended that term

one week. They did not reach all of the cases on the

cftlendar. I talked to some of the people that would have:

to wait six more months until the March term before they

can get their cases on the calendars and tried. Most of

the distinction addressed itself to cases of minor impor-

tance. But to these people, they were of paramount im-

'-

portance. Some of the people said, "They disposed of the

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rich people's cases, but they didn't reach mine." Some

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of the defendants said, "I'm innocent and I want to be

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tried. And I have to wait six more months. But they

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disposed of the more so-called important cases." Pickens

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County does not have a State Court and they only meet

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twice a year. It appears to me it is of paramount impor-

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tance that we keep justice down on the local level where

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PAGE 70
people can come into court and dispose of their disputes in a reasonably period of time. Where the average man can have speedy access, not only to the courts, but speedy redress to justice in a short period of time. In my considered opinion, the present system does give the average man speedy access to the courts, speedy redress to justice. I do not believe, under the proposal, that the man on the street can get justice as speedily as, I believe, is desired. I adopt, almost en toto, the argument of Mr. Hinson McAuliffe. I think he made a good presentation--and some of the other proposals
I think this is a matter, ladies and gentlemen, that, deserves serious consideration. I will be the first to admit there is grounds for improvement in most everything that I am familiar with. If I might be so presumptuous as to make a suggestion, would you consider giving the people speedy access to the courts, speedy redress to justice by considering perhaps a circuit state court or a circuit solicitor where people could receive speedy access. In talking to people on the street, unfortunatel~, they are not satisfied with our system--most all forms of: government. They say we can't talk to any of our elected officials. I hear this everyday--everday. "I can't talk to my elected official." They're upset; they're angry. Some of them are downright belligerent because they think,

.PAGE 71

they can't receive justice. They can't talk to anyone.

2

My court this year will handle approximately sixteen

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thousand cases. I submit to you, the Superior Court Witil all of the important cases they have--will they have ~~e i time to deal with the minor infractions of the law and th~ minor disputes? One man told me in Pickens County: "My tools were stolen. This is the way I make my living. The District Attorney has to hold them for evidence. I have no money to buy anymore tools. rfuat am I going to do?"
I am unaHterabrJ.:,y opposed to certain provisions of your proposal. I think you're denying the people their just rights and--I hate to repeat--speedy access to the court and speedy redress to justice. I thank you for your time and I hope that whatever comes out will be the best for all citizens of Georgia. Thank you, ladies and gentlemen.

MR. SNOW:

19

Thank you, sir. Judge Smith, State Court of DeKalb '

20

County.

21 JUDGE JACK SMITH:

:22

Mr. Chairman, ladies and gentlemen of the commission.

,

23

fellow Judges and Solicitors, my name is Jack Bryan Smith.

The reason I give you all three names is to distinguish

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we have a-plenty. When we heard in DeKalb County of this

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meeting, Judge Carlisle and I agreed that Judge Hitchell

3 III,

should be our spokesman and I endorse every word that he

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said. I agree with practically every word that has been

stated this morning from this podium. And I agree with

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Judge Taylor Phillips. I agree with Judge Smith from

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Gainesville. I agree with Judge Henley irom DeKalb County,

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tile Superior Court Judge who is a Republican, who says

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that he \'lould like to see the judges elected in the Gen-

10

eral Election without party affiliation. I believe that

part of this bill is good. Host of the rest of it I am

opposed to, but I shall address myself only to one part

of the bill. And that one part is the part that deals

with taking State Court Judges, Solicitors and Probate

Judges out of the elective process.

Ever since I have been in public office, which will

be twenty-one years as of November 1st, I have heard over,

IX

and over from all directions, that tilis position and that,

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19

positions should be taken out of politics. But no one

20 II
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ever defines what politics is. Now, politics to me means i

21

taking the elective process away from the people and

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giving that power to an individual to appoint rather than,

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to elect. Now, if taking people out of elective position~

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and putting them in appointive positions means "taking

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people out of politics," then I'll have to point out--I

PAGE 73

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submit to you that Adolph Hitler is

the one man who most

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effectively took politics out of his country completely.

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And we all know the holocaust that followed as a result

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of this.

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Now, I cannot give the direct quote, but I can quote

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substantially a provision in the Declaration of Indepen-

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dence. Now, among the protests enumerated by Thomas

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Jefferson, James Madison and the other composers of the

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Declaration of Independence was just one thing that means,

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the most to me as a judge. And that was that King George

III of England is appointing his judges to sit in trial

on us Americans. Now, the constitutional amendment that

we have under consideration seeks to remove State 50lici-

tors, State Court Judges and Probate JUdges from the

elective process and, ostensibly, from what I've been

able to gather, to be appointed by the Superior Court

Judges. Everyone say that's fine. They'll get them out

of politics and we'll still have a say-so by electing the

19 Ii

Superior Court Judges. But now if we continue towards

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that 1984 showdown that George Orwell has predicted, what I ;

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is to prevent another commission from taking the Superior

Court Judges out of politics by having them appointed by

the Court of Appeals Judges? What is to prevent another

commission from taking the Court of Appeals Judges out of

by the Supreme Cour~

Judges. And still yet when another commission sits, gen-

tlemen, what is to prevent a judgemaker, a kingmaker or

a supreme appointer, whether it is our Governor or

whether it is a Federal appointee for this purpose, to

appoint all our Supreme Court Judges in this State? ~fuen

that happens, gentlemen, we will have made--we will have

completed the full cycle from 1976 to 1984 and back to

1976. Now, I don't care to go back to 1976 personally,

gentlemen, because I don't care to cross the Delaware

10

River and I don't care to spend the winter at Valley

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Forge. Thank you very much.

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SNOW:

All right.

Let's see.

Judge Munford of the State

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Court of DeKalb County?

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Yes, I see that.

191 MR. MUNFORD:

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I pass.

Did you want to be heard?

21 MR. SNOtv:

22

You pass. All right. James R. Venable.

23 'IIMR. VENABLE:

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Mr. Chairman, members of this Committee, ladies and !
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gentlemen, it's deemed an honor to speak to you here. I'm

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a country, ordinary lawyer. Been practicing in this State for forty-seven years. I've had the privilege and honor of appearing in many states of this great country in court--both civil and criminal cases there. And I find none that's equal to the system--the judicial system of this great State. There's one exception--the State of Louisiana, which adopted and followed the old French, Napoleonic laws. There is quite a difference there but it's very simple.
The State of North Carolina is one exception. There! we find--in our jUdicial system there, we have roving judges there that he comes back to home base about--a little over four years. He is directed by the Supreme Court there and he's sent out over the State there to judicial circuits, which works rather a hardship on the judge as well as his family. I'm opposed to that system.
This--I adopt the views of most of these speakers here that this is a bad or will be a bad piece of legisla~ tion to be adopted by the people if they arise to adopt it there. This whole system was promulgated and hatched out of the Metro Planning--Metro Government System there that was hatched out, breeded and financed by the Rockefellers there in Chicago, Illinois, called 1313 ~~tro Government. And it infiltrated and penetrated the universities of this great nation and into the political hands

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of the legislatures throughout thie country until we're trying to become a Hitler in this great country today. And sponsored and promulgated by the United Nations--the Hetro Planning System there to unify and to centralize power in the hands of the few there. The only way that the people can keep control of this great nation and judiT cial system as well as the executive and the legislature is by the ballot box. No other system has ever equalled that of America. You can adopt all of these laws there. And there is pending in the United States Congress the most damnable piece of law that we're about to adopt there. 'rha t is giving me the right to cri tici ze any race ~ color or creed called the Genocide Convention there. It's 83 countries of this great world has adopted this system there; hatched out in order to prohibit the people having a voice in their government there. This type of legislation--our system here--the State Courts and the Superior Courts and the Probate Courts of this great State have done a wonderful job there. They are to be commended there. They have a system equal tc none have I found in this great nation. But yet this hydra-headed monster, United Nationa, and this centralized power--poli~ tical power--they want to put it in the -hands of a few. For many years, I opposed it--the incorporation of tile Georgia Dar which puts it in a central power. A few over

PAl~E 77

here in the Supreme Court there.

I'm against it there. I think--and used to, when they'd

disbar a lawyer, they'd have to file a petition in the

county where he was domiciled and where he had friends

and where he had some standing. And yet for a lawyer to

be disbarred, it comes right here out of a central power

there. I'm against that type there. And I want to commend

these judges and these other speakers here for your term ;

here. I see no change in this great judicial system.

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I urge you to stay by your system which we have had for

many centuries and it might be some i~rovement as far--
"
and we did it or thought we improved the practice of law

by adopting the Federal System of Uniform Practice,

which have f~illed every courthouse and put documents

there in every courthouse and I think we ought to have

never adopted this what we call Practice and Pleadings

Uniform System there. For this Uniform Code is the damn-

IH

ablest thing that ever was perpetrated on the people of

19

this great State there. And I urge you members of this

1.0

council there to kill this bill there and I urge your

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legislators and your representatives to defeat this piece!

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of legislation if it's attempted to be passed by the

23 I!

Georgia legislation. I want to thank you.

24 MR. SNOW:

Thank you, Mr. Venable. Mr. Lansing Wilson? Let

me comment that after Mr. Wilson, there is one--Dorothy

2

Beasley, do you want to be heard too?

3 JUDGE BEASLEY:

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[Indicating affirmative response.]

S MR. S1'10Y1:

Okay. Fine. That will be our last speaker unless

there's someone else that--what was your name, please?

K MS. BAILEY:

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Mr. Chairman, my name is Lois A. Bailey, B-a-i-I-e-y ~

III MR. SNON:

All right, sir.

vlILSON:

It's Lansing Wilson. I'll identify myself and my

address is 5292 Mimosa Drive in Stone Mountain, Georgia.

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I'm a private citizen. I have been before some of you-before tribunals, both in civil and, I suppose it's criminal--misdemeanors--situations. I've read only very little of this and obviously understand none of it. But I address myself to this record, which I hope may go before elected officials. I'm one of this public. I'm one of these people. I'm one of the four million people that live in this area. We already know there's not such thing as justice in the State of Georgia. We know it. I would refer myself to one clause--only one clause that I understand and \\rith \\7hich I have some experience--personal

experience--and also I have one example. The requirement

that an attorney be a judge. The fundamental basic

3

reason for the corruption and immorality which pervades

4

every court system that I have been exposed to, which are

both Fulton County and DeKalb County. I have observed

some of these but I have examples in both these areas.

This ties everything in under--and I may have the name

8

correct or incorrect, Mr. Nicholson, who is, I understand,

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a Justice of the Supreme Court of the State of Georgia

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and the Georgia State Bar Association. I address myself to both elected legislators whom I
hope will see this record. We-SNOW:

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Let me say this, Mr. Wilson, we would like for you to address yourself to the issues, though, that we're facing here. I hope that you would avoid any personalities that you may have been involved with in the past. I! don't think that would be pertinent to what we would be doing. We would like to know what you think about the document before you or what we are doing with it.

" !I MR. WILSON:

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I understand that that is what you would like or

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what you would prefer that I do that. You would prefer

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that no documented, actual example go into the record be-

cause you don't want to have to face that. I understand

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that you want--

" II MR. SNOi\7:

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NO, sir. Any statements that you want to make about

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what we've got here, we would welcome that.

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WILSON:

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It is about what you have here. Because of the

7

requirement that a Judge, Recorder, Justice, whatever

you term them, must have prior experience as an attorney.

This is an evil thing that is preventing justice in the

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State of C~orgia. It should be--the prohibition should be the opposite direction. It should be that anyone who practices law should not be permitted to be a Judge or a Justice of the court of whatever you call it. Because it may be on a subconscious level, I cannot determine--it: appears to us in the street that it is on a level of what we think of as a conspiracy. We are untutored. But we sincerely believe that there is no such thing as justice

18

now and elected officials come along now to propose to pro-

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mulgate additional legislation and additional laws at the

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time when some individuals in the State have finally been

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able to fine out at least how to approach the various levels of the court of law. And what it appears to us--

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this legislation appears to us is that, okay, we almost

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got to the point where we might accidentally have gotten

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some justice. Now, they're qoing to change the name of

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the game on us--which we just about found out how to find out which courtroom to get into before--I'm giving exampl~s --before our case was dismissed with prejudice by our own attorney without our knowledge, which plea for dismissal actually had a forged signature on it. I give that as an example.
Naturally, I'm not able to be educated enough to-or specific about clause by clause by clause, but what I'm trying to do is to get in one conversation to state to you elected officials here, who hold the--during the off-period ;when the legislature is not in session and the decision is made long before you every go onto the floor of the legislature that if you think in terms of repeal and abolish--one gentleman here did refer to the Declaration of Independence of the United States. That is the document which created this great nation. The Constitution of the United States is supposed to be ~~e surrounding, confining of all branches of government. v'Je'i
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as individuals, are beginning to find out that there is a reason that we were taught in school to memorize the Gettysbyrg Address, to memorzie this, to memorize that, to memorize the other. But the ap?earance of the Declara~ tion of Indenpendence is always put on a reproduction of a scroll, written out in script so that we would not read the first paragraph that says that when government ceases

to serve the people, it is time to abolish the government.

And I'm not calling--I make a distinction. I say abolish

the government. I quote the Declaration of Independence.

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do not say anything about we support overthrow. And my

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statement is applicable to elected officials today re-

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gardless of 't'lhat considerations--and I may have been too

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obtuse or didn't make the application. But I am one of

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the people of the street and I knm'l what we are thinking

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in terms of. And if there is an elected official who has political ambitions--and I'm trying to use term~-career goals, is the term used if they are a bureaucrat. Very shortly, I offer something for free. If someone will run, their campaign based on "I will go to my position and represent my constituents and I will vote yes only to repeals and only to abolitions. And I will across the board adamantly vote no on additional laws, additional

JH

legislation. II That person will have a lifetime career

19

and the love of his constituency greater than Senator

20

Richard B. Russell had. And, to my knowledge, there is

21

no man elected to office who was greater loved by his

constituency to date. Thank you.

II 23 MR. SNON':

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Thank you.

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25 ll~UDGE BEASLEY:

Judge Beasley?

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Mr. Chairman, members of the commission, ladies and gentlemen, I just want to mention one other thing a lot
I
of people have talked about not knowing what was going on with the commission. I would just suggest in the future you might make known to the State Bar and also to the Judicial Council and administrative office of the courts that have organs of their own, as well as the District Attorneys Association. I believe the Clerks do toO.
~~at you're proposing and copies of the drafts and they perhaps can distribute them or at least advise their! members by way of the State Bar News and so forth of the upcoming meetings. And I think that that might be a better organ than the general press. Before I address the draft that is before you, I think that if this draft is not presented to the General Assembly this year, there are three things, however, that ought to be addressed to them if you don't do a total revision.
One is the current provision in the Constitution in which we have ex de.licto default requiring a jury trial. That, at least in my experience in my court is a farcical I kind of operation where there is only one side represente4. It is not required in ex post facto 'cases but it is requitted ex delicto cases so that you have a body of citizens coming in for jury duty who have decided for them by opera~ tion of law that there is liability and they will deter-

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l'A,;.G 84
mine only damages. However, there is no one on the other side. Consequently, they are sitting there being told
in many instances what the verdict should be and what the
amount of damages should be. I think that that's a travesty of justice and a great expense and that certainly should be considered. It is presently in Section 3307 under the Georgia Code Annotated, Title II. Then in Article VI, Section 4, Paragraph number 7 and carried forward in the CPA Section 65. Certainly, I think if nothing else is done this year, there should be a division of those things out of the general area of the court structure that includes family matters. And there should be a sepa+ rate family court for divorces, for non-support and abandonment and for juvenile court matters. The situation now is, here I am the State Court Judge and I get before me as misdemeanors, many, many cases of non-suppor~ and abandonment. Those things often arise out of the failure of a husband to provide the support that's been required by the Superior Court. Now, why should I take into .account those things and why should it not be in one! court--that is, the Superior Court. I also get b~fore me the garnishment of wages involving non-support out of decisions that have been rendered by the Superior Court or where there is no decree at all. And there was no court proceeding involving the family before. And, as

PAGE 85

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you know, many of these situations are involving the juveniles and runaways and things like that. It seems to me that a great deal of progress would be made if there were a separate family court in Georgia to handle all these matters in one court, not in two separate courts that now have no communication with one another involving the very same problems. And I think it's very, very confusing to the general public and to those who are involved to have to go to three different judges and thre~
I
different courts and not have the record before them. The third thing that ought to be accomplsihed this
year, if nothing else, is uniformity of the courts themselves. That is, that we have all State Courts in the State are the same--have the same type of jurisdiction. The jurisdiction of our court is ludicruos, in my opinion, to a great extent. We can try contract cases that involve hundreds of thousands of dollars and yet we cannot try a case that involves fifteen dollars worth of person-
I
al injury. We cannot try any equity cases and yet we can apply equitable principles.
Now, let me--if nothing else is accomplished this year, I think those things should be addressed. Perhaps we're trying to do too much in one fell swoop by revising the entire Judicial Article at once \dthout giving consideration to these substantive matters ~~at have

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developed over the years by legislation in the Constitution as we have amended it from year to year .
Now, I'd like to address a few comments to the draft that is before us. I think, first and foremost, that, should this go into effect, we need simultaneously effective acts of the Assembly. Otherwise, there will be many areas of vacuum whevever the Constitution--the new constitutional revisions provides that the manner shall be provided by law, which I think is appropriate language and appropriate istuation to take for the Constitution. But when it says "as provided by law," there ..till be a vacuum
I
if it goes into effect with Acts of the General Assembly going into effect at the same time.
Secondly, I see that the draft provides for seven Supreme Court Justices and it very much limits their jurisdiction. I would just question whether we would need tol have seven if they have such limited jurisdiction. I think of course with regard to the present Superior court,:
I
there would have to be a grandfather clause. Thirdly, I question whether the General Assembly can
relinquish control over the number of Superior Court JUdge~ I
by first requiring a certificate of necessity by the Supreme Court. I wonder if that's not non-delegable legislation. In Paragraph 3--rather in Paragraph 6 of Section 3, it provides for nonpartisan elections. But it I

r------- -~ --------

l'AGE B7

II

J.s not clear whether this applies only to Superior Court

2 II

Judges as Superior Court Judges or whether it applies also

3i

to Associate Judges, who are Superior Court Judges but

I

4 II

called Associates. And whether it applies to Hagistrates.~

II

5 Ii

I think certainly that it should apply to all of these

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three types of judges ir we're going to have three types. I

II

7 il1,1,1

All of them should be elected; none of them should be

I:

H II

appointed.

II

Y II

Also I address my remarks to the four-year term that

II

lU

we would provide for Associate Jodges. It should be six '

years. Six years is not too long a period of time when

you elect a judge in so that he can spend those six years

or at least five of them attending to the business of the

people rather than being cDncerned with their time cam-

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paigning. I think also that the question of compensation

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16

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is relevant here because if a judge has to run every four

0

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years, under the present compensation system which will

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not change radically, the persons who are most qualified

19

will not be able to afford to run knowing that they will

if)

21

22

23

24

I
II

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I,
ii

IIL____

have to be putting a lot of money out again within three or four years. And I say that situation will not change redically. I ran across a situation the other day in my research where a judge of the--Judge Russell of the Supreme Court of Georgia quoted an opinion from 1911, which I can't remember the exact words but said, in our opinion4-

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l'AGE 88
and this was from the 1911 quote which he was adopting. It's his opinion in 1963 stating that as far as the court was concerned, it didn't see too much of a difference between a note and a draft in these particular circurnstance~ because, to judges, they all looked the same~ And with their low compensation, the only thing that mattered was whether the bank would accept their signature for a loan. And that situation existed clearly in 1911 and I don't think it will change much by 2011.
Also there is no provision for the Solicitor General and I want to state that I am in total agreement with that and note that--I noticed that as I was reviewing the proposal. I believe that you should not make the State Court Judges and others Associate Judges of the Superior Court if the only change is going to be adminis-! trative. And under your draft now, that is the only change. There would not be a change of jurisdiction at all. It would just provide for a duplication of effort, a top-heavy administrat~ve organization that would provid~ in my opinion no prgress, but only greater money going into administrative personnel. The Superior Court's types of, cases are different than those that .are handled
I
in the State Courts, at least with regard to misdemeanors~ small claims and so forth. And there's no reason to adop~ a uniform-type of procedure for all of those cases when

2

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the differences cannot be reconciled and I don't see that a reconciliation of the specific procedures would achieve anything other than a greater expenditure of money and the need for more personnel which our State certainly cannot afford.
I believe also that if there are to be separate courts, which I think there should be, that there should be clear lines of jurisdiction--no overlapping jurisdiction like we have now, which only allows for a great confusion to the public and allows for judge-shopping and court-shopping by attorneys and allows for a lot of confusion as to who has jurisdiction. A great deal of time in many, many cases that go to the Court of Appeals And the Supreme Court are involved with jurisdiction. And that's totally unnecessary. And should you provide some progress this year by amendment to the Constitution, it should be in that direction.
I think also that there should be specialization of courts. -Because that's the kind of world we're living in.: We have moved away in every other area of 1ife--medicine, science, business, teaching--to specialization. Because our world is so complex. In order to provide the very best service to the people, I think that we should providei p~op1e who are best qualified who can spend their time going to seminars on probate, if that's what they're goifi~

PACt', 90

to hear, seminars on juvenile problems and domestic rela-

2

tions if that's what they're going to hear. But to make

3

every judge a generalist, I think is asking too much and

4

does not provide the best service to the people. So I

would agree that there should be a second-tier of courts

--of specialized courts which we now have, but they shou14

be uniform throughout the State.

I notice also that in section 6, Paragraph 2, it

'I Iiii

does not seem to provide that the Attorney General will

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any longer represent the State in all capital felony a~peals. I question whether that is wise. Also with regard to Hagistrates, Section 3, Paragraph 11, I wonder if there is not a conflict l~tween allowing the Chief Judge to designate what his duties should be and the later pro- vision that jurisdiction shall be as provided by law
~rr. Chairman, I think that if this present proposal is adopted, we would be setting back the judiciary of

18

Georgia two hundred years to what existed before our

1<)

country was founded. We need, not simplification that

20

this very admirably tries to do, but we rather need--we

21

rather need simplification and not a unified system, that

22

is, we need uniformity and I would have to agree with

23 II

those who have brought that to the attention of the com-

24 \

mission. Thank you.

'1

2slb SNOW:

1'--'---'--"'--'-----_.--.---'-"'--.------------.-.--. .--.------..-.

I

Thank you, Dorothy. Ms. Bailey?

PAGE 91

2 MS. BAILEY:

3 \i

Mr. Chairman, distinguished members of this Commit-

II

'I

tee, my name is Lois A Bailey. I am a Justice of the

: II

Peace in Clayton County, Georgia, District 1446. Mr.

Ii

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Chairman, I do not come here today with any prepared

ji

i

statement nor do I come here with malice aforethought

against this Committee. I simply come to you this minute

to speak to you from my heart and from some five years

to

experience in the lower courts, known as the Justice of

the Peace Courts in Clayton County, Georgia.

I am one of approximately 1000 Justices of the Peace

in the State of C..eorgia. I do have a law degree. I am

not a practicing attorney. And in the past five years, I

have accumulated hundreds and hundreds of hours or train-

ing for this office. I know the people in my district and

I know the people on the grass roots level in my county.

Ii) Ii

I am presently serving as the Secretary of the Georgia

19 II

Association of Justices of the Peace and Constables. I

I,I'

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am not speaking for our State Association, simply in be-

i

21

half of my own opinion.

22

I am nearing the age of retirement. So I do not

23

stand here and talk to you in my own ~ecuniary interests.

24
25 l __

I do not sustain myself or my family on the monetary value gained from this office. Nhen I was in law school, :

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I learned that the Justice of the Peace Court was in fact the first court that we have any knowledge of, that even the founders of our qreat country, this United States-some of them were Justices of the Peace. I know this court to be the people's court. And you distinguished people sitting here today probably have no idea of the needs of the mass of the little people--the poor people, the uneducated people, both black and white who used the
I
courts known as the Justice of the Peace Courts of Georgi~. These people do have problems. They break the law. They need a place to go that they can air their grievances without having to take the money that they need for rent, the money that they might need to buy food, the money they might need to buy clothing and hire an attorney to defend them in a higher court.
I've listened this morning to State Court Judges and many other people and I agree with everything that they have said. I do not imply--I do not intend to imply that i
i attorneys should not be paid or compensated for their ser4 vice. But 1 am saying to you, Hr. Chairman, that I do not see any difference in the word "Magistrate" and Justice of the Peace. I see my good friend and my State Court Judge, Judge Alvin Foster sitting here today. And I have talked to him and Judge Harold Banke many, many times and I've asked them the difference in a Magistrate

rr------- --- ------- ----- ----- --------- -------

PAGE 93

I
I

system court and a Justice of the Peace Court. And I've

~I

always had the answer come back to me, "The difference is

I!
a black robe." So you see I've found that you have used
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the word, Mr. Chairman, Magistrate, in this proposal. I

II

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do not see the terms Justice of the Peace Courts. No

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matter how you look at it, I have found that Magistrates

ii

7 i!

usually end up being appointed, Justice of the Peace be-

II

ing elected by the people.

I ask this Committee this morning if you intend to

10

do and submit to the people of Georgia a proposals that

is beneficial to all people, to the rich, to the poor, to

black and white and other colors of this great State, thati

you reconsider this and allow--and make provisions for

the Justice of the Peace Courts. And in addition to that,

that you seek the ways and the means to make it a better

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court system rather than giving it a title of Magistrate

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and perhaps taking away the 'right of thr grass roots

people to have their court. You see, in five years, I've

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encountered people of all levels of life in my court, financially and otherwise. And I know the hurts and the moans and the groans of the mass of this country--of this United States. And if you do not support this legislature that we have, l\1r. Chairman, nO\'1 pending for mandatorYi education requirements for anyone holding the office of
~~~~~c~ __~~__~~~__p~~ce, w~e_ther __~~~ in the end elect to hav~

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PAGt, 94
it as Hagistrate or some other title, I believe this Committee will have failed the great people--the mass of people of the State of Georgia.
I would to God that you members culd find yourselves on the level of most of the people of Georgia. Then you, would certainly look and you would seek the means and the ways to provide this court and sustain this court. I'm not speaking in behalf--because I'm a Justice of the Peace primarily. It's for the people of this State that I speak to you and ask you this day to help us to upgrade it. I think it's one of the most wonderful offices of the State of Georgia. And I ran for this office because the people came to me and asked me to run. Because' ineed we did have one, and I did replace him, who was not fair to the people. But he is no longer there. The will of the people spoke and another person was elected. He ask that you keep this an elective position and go back and re-read and rewrite and put into this system help that would help us as a state organization to provide for t1tis court in this new system of judicial unification. that you're proposing. I've heard the word "uniformity" uRed. I concur with that. I think the justice system should be conforming from county to county. It would cer+ tainly mean that our good State Court Judges and Superior! Court Judges throughout--and all attorneys would know what
I

l' At, r~ 95
\1----- t~-e~~:ct-f-~::one county to another. \Ale do not have thi~.

2I

We have not received any assistance. We are seeking help!
I

3I

from the legislature and we ask help from this Committee

4I

to help us sustain and provide the lower gross-roots cour~s

5i

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system for the people of the State of Georgia. Thank you!

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very much.

7 \\ MR. SNm'i':

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Thank you very much, Ms. Bailey. Is there anyone else that would like to be heard? If not, let me especia~-
i
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ly thank you for your' attendance and certainly your atten; tiveness and your contribution that you have made to us. We certainly called the meeting primarily for the purpose of hearing your comments as it affects you and as the

14 ..>...-..

total Article--as your comment with respect to the total



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Article. I don't think that this commission is trying to

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do anything other than to provide some type of document

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as a Judicial Article that can be responsive again to the

Ii)

needs of the people of this State, but that we can be

19

responsive through legislation as those needs arise. And

20

we should have those courts that are necessary in every

circuit of this State to meet those needs. Now, there's not \ one on this commission that is not cognizant of tha~i
i
factor, that we want the judiciary of the State of Georgi~
to be responsive to the needs as they exist in any circui~

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the people--the personnel will be available in each and every circuit to meet those needs, whether they be financed on a local basis or whether it be by the law of this State that they be compensated from the State Treasury. But we do have problems. And I think there's

b

differences that we have seen here today as to your ideas

as to how the judiciary should function. Hopefully, we

can use those suggestions and be better equipped to come

up with a document that, hopefully, many of you will feel

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more comfortable with than what you apparently do with what you have thus far seen. Eill? ALEXANDER:
Mr. Chairman, is it appropriate to entertain any

14 >I-

questions on this?

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15 ~ MR. SNOl'1:

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16 .2..

Yes, if you've got them

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17 ~ JUDGE ALEXAlm~F.:

18

I wonder if you or some member of the Committee would

19
20
21
22
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' 23 I 24 II
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comment on the abolition of some of the lower courts? For example, Paragraph 12 provides that: "On the effective date of this Article all courts of this State except the Supreme Court and the Court of Appeals and the Superior Courts, shall cease to exist."
Hhat provisions have been made or do you intend to make for transferring powers--

PACE 95

lr-----. I

t~--e:~:ct -f-~:~- .~~~. county to another. Ne do not have thi~.

"
We have not received any assistance. We are seeking help I ! I
from the legislature and we ask help from this Committee

to help us sustain and provide the lower gross-roots cour~s
i
system for the people of the State of Georgia. Thank you!

very much.

SNOl'1:

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Thank you very much, Ms. Bailey. Is there anyone
else that would like to be heard? If not, let me especiaJ;I-
i
ly thank you for your attendance and certainly your a tten'i

tiveness and your contribution that you have made to us.

We certainly called the meeting primarily for the purpose

of hearing your comments as it affects you and as the

total Article--as your comment with respect to the total

Article. I don't think that this commission is trying to

do anything other than to provide some type of document

as a Judicial Article that can be responsive again to the

needs of the people of this State, but that we can be

responsive through legislation as those needs arise. And

we should have those courts that are necessary in every

circuit of this State to meet those needs. Now, there's

not \ one on this commission that is not cognizant of tha~ I I
factor, that we want the judiciary of the State of Georgi~

to

be

responsive

to

the

needs

as

they

exist

in

any

i circuitj

of t~~~_ ~~~~_=__~~ .i_~_~~~..._:~~~~~~_~_ this _~:~~e_. And that i

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PAGE 96
the people--the personnel will be available in each and every circuit to meet those needs, whether they be financed on a local basis or whether it be by the law of

4I

this State that they be compensated from the State Trea-

s

sury. But we do have problems. And I think there's

.. ..;:.. '

differences that we have seen here today as to your ideas

as to how the judiciary should function. Hopefully, we

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can use those suggestions and be better equipped to come I

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up with a document that, hopefully, many of you will feel

10

more comfortable with than what you apparently do with

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what you have thus far seen. Bill?

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12 ~ JUDGE ALEXANDER:
2
Mr. Chairman, is it appropriate to entertain any

14 >~

questions on this?

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Yes, if you've got them.

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17 ~ JUDGE ALEXAlmeF.:

18

I wonder if you or some member of the Committee would

19

comment on the abolition of some of the lower courts?

20

For example, Paragraph 12 provides that: "On the effec-

21

tive date of this Article all courts of this State except

22

the Supreme Court and the Court of Appeals and the Super-

23
2~
ll_II:1
2~

ior Courts, shall cease to exist." What provisions have been made or do you intend to
make for transferring powers--

~ M~~~~~~;

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Well, let me suggest there was a comment made re1a-

II

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tive to legislation that would be concurrent with the

4 il

adoption of the new Constitution and we certainly would

5 [I

propose to have such legislation that would be passed at

I

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the same time if the Constitution were to be ratified by

7 I,

the people, that would go into effect. For most of your

I

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courts or a large number of ~hem, there's already law on

II

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the books that would continue as the law of this State

]U

that would not be affected by this Constitution. It's

simply a restriction and we would like to be in a position

to be able to be more flexible in some instances to meet

certain needs. But there would be concurrent legislation!

that would be passed, certainly on retirement and things I

IS .:.

of that sort. Because people do have vested rights.

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16 ~ JUDGE ALEXANDER:
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What's bothering me is that you talk about abo1ishin~

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certain courts and I don't see anything in here to indicate

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what other courts would handle the function that's now being carried out.

21 MR. SNOW:

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These courts would all become Associate Courts and would continue in existence. The Constitution itself

24 I,i ': I i:
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would continue them until such time as they should be

.

changed
. _ .. .

by

law.
_

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provide

that

in

the

draft

itself.

JUDGE ALEXANDER:

2

That's the State Court, the Probate eourt--

MR. SNOW:

The State Court, the Probate Court, the Juvenile

Court.

JUDGE ALEXANDER:

7

vfuat about those other courts that are not listed

~n there?
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10

Well, we have got a mkter list of atl of those

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" courts, too, Bill, that we're going to take up on the

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21st when we meet again. They have--we have a slew of

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courts--Small Claims Courts have been passed in the last

14 >-
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three of four sessions of the legislature. I would think

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of those courts would be grandfathered in until

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there are some changes made by law.

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17 ~ JUDGE ALEXANDER:

One more thing. Can you tell me what is the antici-: I
!
pated effective date of this?

SNOW:

We haven't really anticipated that yet. We're going!

))
to--we're meeting again on the 21st. All right. Joe

23 !'II

Mundy?

24 \1 t-1R. MUNDY:

25 II

Mr. Chairman, are you planning to have any other

j ~-------- - - ~-Ommi ~~~e~~:~in~s like this in any other parts of the

2 II

State?

I,

iI MR. SHO\\l:

4 Ii

I think it would be wise for us to do so. I think

5 Ii

we'll take that up on the 21st. We'll see what progress I

I> II

we can make at that time and certainly we will be meeting

,

"

at 1:00 o'clock on the 21st and any of you who would like

to attend that meeting, please feel free to sit in on

them and we'll be very happy to have you.

III A VOICE:

Please take cognizance of what some of the speakers

said and notify the Bar and the Judges' Associations so

we'll know when the meetings happen. If it hadn't been

for Judge Hi tchell, no one would have knovm that I kno\"

of. We weren't sent out any notices of the meeting.

SNm-J:

All right, sir. We have really tried to keep most

folks--I just don't know where we--

The Judicial Council didn't tell us about it, let me say that. Or the Superior Court Judges' Association didn't know anything about it.

Well, you see on the commission--we've had several of these groups that have been represented on the com-

1'.'\1;1'; 100

mission and these associations were supposed to have been

notified. Albert?

TIIOHPSON:

Mr. Chairman, I would suggest that ,,,e do exactly

what the young lady said and that is to notify each of

these statewide associations and that would resolve that.

" IIHR. SNOH: I I
is

Marty says that they have been notified of this

q Ii

meeting. but they have not been notified of previous

10

meetings.

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When did you notify you notify them, though? Nas it in time to notify their members?

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14 ~1R. HODGKINS:

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The notices were sent out about two weeks ago.

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Mr. Chairman, is our next meeting the date of

~R'IH

October 21st or the 24th?

19

SHON:

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The 24th. I'm sorry. It's October 24th at 1:00

I 21 I

o'clock in Room l42-B on the first floor. We are now

11
I,
~3 II 24 I'I,IIIi
,I
25 ~-

adjourned. [Whereupon, the above-entitled proceedings were adjourned. at 1:30 o'clock, p.m.]

l'.-\c;.t; 101 C E R T I FIe ATE I hereby certify, as the court reporter, that the statements that appear in the proceedings were taken steno4 graphically by me, and thereafter reduced to typewriting by mej and that this transcript is a true and accurate record to the I h best of my ability.

IU

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DARLENE F. AKINS, CCR

INDEX Committee to Revise Article VI Public Hearing Held on Oct. 15, 1977

PUBLIC HEARINGS ON ARTICLE VI, 10-15-77 (State Capitol)

Proceedings. pp. 3-6

Representations on: Probate Courts, Superior Courts, Solicitors, Justices of the Peace, State Courts, other.

Judge Propst, Probate Court of Fulton County. pp. 6-8 Judge Simpson, Probate Judges Association. pp. 14-18 Mr. Rivers, Solicitor, Cobb County. pp. 8-9 Mr. Mundy, Superior Court Clerks' Association. pp. 9-11 Judge Mitchell, State Court, DeKalb County. pp. 12-13 Judge Phillips, State Court, Bibb County. pp. 19-24 Judge Pittard, State Court, Clarke County. pp. 25-40 Judge J. Smith, State Court, DeKalb County. pp. 47-56, 71-74 Judge Henley, Superior Court of DeKalb County. pp. 42-45 Judge Henson, Superior Court of DeKalb County.pp. 45-47 Judge C. Smith, State Court, Hall County. pp. 56-57 Judge Followill, State Court, MuscogeeCounty. pp. 57-62 Hinson McAuliffe, Solicitor, State Court of Fulton County. pp. 62-67 John Thompson, Solicitor, State Court of DeKalb County. pp. 67-71 James E. Venable. pp. 74-77 Lansing Wilson. pp. 78-82 Judge Beasley, State Court, Fulton County. pp. 82-91 Lois A. Bailey, Justice of the Peace, Clayton County. pp. 91-95

Section~: Judicial Power

Paragraph I:

Judicial power of the State, and

Section!: Transition, pp. 96-98 (Abolition of certain courts)


Draft of Proposed New Judicial Article Considered at Public Hearing of Committee to
Revise Article VI Held on October 15, 1977

)MMITTEE MEMBERS:
EORGE BUSBEE GOVERNOR CHAIRMAN
ELL MILLER LIEUTENANT GOVERNOR
-lOMAS B. MURPHY SPEAKER, HOUSE OF REPRESENTATIVES
.E. NICHOLS CHIEF JUSTICE, SUPREME COURT
'HN SAMMONS BELL CHIEF JUDGE, COURT OF APPEALS
RTHUR K. BOLTON ATTORNEY GENERAL
ARCUS B. CALHOUN CHIEF JUDGE, SECOND JUDICIAL CIRCUIT

SELECT COMMITTEE
ON
CONSTITUTIONAL REVISION
ROOM 881 7 MARTIN LUTHER KING, JR., DRIVE
ATLANTA, GEORGIA 3033" "0"/686-7188

COMMITTEE MI:MBERS, AL HOLLOWAY
SENATE PRESIDENT PRO TEMPORE JACK CONNELL
SPEAKER PRO TEMPORE
HOWARD T. OVERBY CHAIRMAN, SENATE JUDICIARY COMMITTEE
WAYNE SNOW, JR. CHAIRMAN, HOUSE JUDICIARY COMMITTEE
FRANK H, EDWARDS SPECIAL COUNSEL
L. I\ilARTIN HODGKINS EXECUTIVE DIRECTOR

TO: ALL MEMBERS, COMMITTEE TO REVISE JUDICIAL ARTICLE
FROM: Marty HOdgkin~
SUBJECT: Proposed Draft of Article VI
DATE: October 11, 1977

Enclosed please find a copy of the proposed draft to revise Article VI which was adopted by the Committee at its meeting on Friday, October 7.
As you are aware, the Committee has scheduled a public hearing to receive testimony or comments on the proposed language from interested individuals or groups. This hearing will be held Saturday, October 15, at 10:00 a.m. in Room 341, State Capitol.
If you require further information or assistance, please do not hesitate to contact this office.

CC: Mr. Charles Tidwell Mr. Terry McKenzie Dr. Cindy Nonidez Mrs. Pat OlNea1 Mrs. Jean Pressley

ARTICLE VI
JUDICIARY
SECTION 1. Courts Enumerated
Paragraph 1. Courts Enumerated. The judicial powers of this State shall be vested in a Supreme Court, a Court of Appeals, and the Superior Courts.
Paragraph 2. Unified Judicial System. For the purposes of administration, all of the courts of the State shall be a part of one unified judicial system under the supervision of the Supreme Court. The administration of this system shall be as provided by law.
SECTION 2. Supreme Court and Court of Appeals
Paragraph 1. Supreme Court. The Supreme Court shall consist of (seven) justices who shall from time to time, as they deem proper, elect one of their members as Chief Justice, and one as Presiding Justice. The Court shall have power to hear and determine cases when sitting as a body under such rules as it may prescribe. A majority of the Court shall constitute a quorum. When a Justice of the Supreme Court is disqualified from deciding any case, the remaining Justices may designate a judge to participate in said case.
Paragraph 2. Court of Appeals. The Court of Appeals shall consist of such number of Judges as may now or hereafter be provided by law. The Court may from time to time elect one of their members as Chief Judge and such .number of Presiding Judges as may be prescribed by its rules. The Court may adopt such rules of practice in cases before it and the manner of hearing and determining cases as are not inconsistent with the rules applicable to the Supreme Court. The decisions of the Supreme Court shall bind the Court of Appeals as precedents.
Paragraph 3. Terms of Office. The Justices of the Supreme Court and Judges of the Court of Appeals shall hold their offices for eight years, and until their successors are qualified. They shall be elected by the people at a general election on a nonpartisan basis as provided by law. Every vacancy caused by death, resignation or other cause shall be filled by appointment by the Governor, until the first day of January following the general election in which a successor can be elected.
Paragraph 4. Jurisdiction of Supreme Court and Court of Appeals. The Supreme Court shall have no original jurisdiction, but shall exercise appellate jurisdiction of appeals from the Superior Court in all cases in which a sentence of death has been imposed; in all cases in which a law has been declared unconstitutional; in all cases from the Court of Appeals as a result of an equal division between the Judges of that Court when sitting as a body for the determination of cases; in all cases where the Supreme Court has prescribed by rule that it shall have jurisdiction; and any case the Supreme Court may require by writ of certiorari to be certified to the Supreme Court from the Court of Appeals for review and determination of a question of law.
The Court of Appeals shall exercise general appellate jurisdiction in all cases except those in which jurisdiction has been conferred by this Constitution upon the Supreme Court, or cases where the Supreme Court by rule has prescribed that the Supreme Court shall have jurisdiction.
The Court of Appeals may certify a question to the Supreme Court for instruction, provided that the Court of Appeals shall be bound by any instruction given by the Supreme Court.
The Supreme Court and Court of Appeals shall have the power to issue all writs as may be necessary to the proper exercise of their respective jurisdiction and shall have the authority to hear and determine the same.
Paragraph 5. Disposal of Cases. The Supreme Court and Court of Appeals shall dispose of every case at the term for which it is entered on the court's docket for hearing or at the next term.

SECTION 3. Superior Courts
Paragraph 1. Jurisdiction. All original jurisdiction shall be vested in the Superior Courts. There shall be no other trial court.
Paragraph 2. Judicial Circuits. The State shall be divided into judicial circuits consisting of one or more counties as provided by law.
Paragraph 3. Number of Judges. Each judicial circuit shall have one Superior Court.
The General Assembly shall have the authority upon certification of necessity by the Supreme Court to change the number of Superior Court Judges in any judicial circuit.
Paragraph 4. Term of Office. The term of office of Judges of the Superior Court shall be six years and until a successor is duly selected and qualified, provided that all Judges of the Superior Court holding office on the effective date of this Article shall remain in office for the term to which they were elected.
Paragraph 5. Chief Judge. In those circuits having two or more Judges, the Superior Court Judges therein by majority vote shall select biennually a Chief Judge. In the event that a Chief Judge is not selected within 60 days, the Supreme Court shall designate a Chief Judge. The Chief Judge shall exercise in the administration of the circuit such authority and perform such duties as may be prescribed by law.
Paragraph 6. Elections. All judges of the Superior Court shall be elected by the people at a general election on a nonpartisan basis as provided by law.
Paragraph 7. Vacancies. All vacancies in the office of the Judge of the Superior Court shall be filled by appointment by the Governor. A person appointed shall serve until the first day of January of the year following the general election in which a successor can be elected.
Paragraph 8. Sessions. The Superior Courts shall sit in each county not less than twice a year.
Paragraph 9. Superior Court Clerks. Each county shall have a Clerk of the Superior Court.
Paragraph 10. Associate Judges. The Associate Judges of the Superior Courts shall perform such duties as may be provided by law.
All Judges of the Probate Courts, Juvenile Courts, and State Courts in existence on the effective date of this Article shall become Associate Judges of the Superior Courts in their respective circuits. Such Associate Judges shall exercise the same jurisdiction and shall be compensated in the same amount and from the same source as now compensated. Provided, however, that the General Assembly by law may change the jurisdiction of such Associate Judges, and the amount and method of their compensation.
All persons who become Associate Judges of the Superior Court under the provisions of this Article by reason of their holding office as judges of other courts prior to the effective date of this Article shall be eligible to serve as Associate Judges of the Superior Court of their respective circuits regardless of educational or professional qualifications.
The General Assembly by law may increase or decrease the number of AssQciate Judges of the Superior Courts in the circuits of this State and may prescribe the qualifications for such judges not inconsistent with the provisions of this Article, provided that following the effective date of this Article, any person selected or appointed as an Associate Judge shall have practiced law for three years.
Unless otherwise provided by law, the term of office for each Associate Judge shall be four years and until a successor is duly selected and qualified, provided that all Associate Judges holding office on the effective date of this Article shall remain in office for the term to which they were selected.
Paragraph 11. Magistrates. Each Superior Court circuit shall have the number of Magistrates as provided by law.

Magistrates shall perform such duties as may be assigned by the Chief Judge of the circuit and by law.
Unless otherwise provided by law, the term of office for each Magistrate of the Superior Courts shall be four years and until a successor is duly selected and qualified, provided that Magistrates holding office on the effective date of this Article shall remain in office for the term to which they were selected.
All Judges and Magistrates of courts not named in Paragraph Ten, Section Three of this Article shall become Magistrates of the Superior Courts in their respective circuits. Such Magistrates shall exercise the same jurisdiction and shall be compensated in the same amount and by the same source as now compensated. Provided, however, that the General Assembly may by law change the jurisdiction of such Magistrates and the amount and method of their compensation.
All persons who become Magistrates of the Superior Court under the provisions of this Article by reason of their holding office as a Judge or Magistrate of other courts prior to the effective date of this Article, shall be eligible to serve as Magistrates of the Superior Courts in their respective circuits regardless of educational or professional qualifications.
The General Assembly by law may increase or decrease the number of Magistrates of the Superior Courts in the circuits or counties of this State and may prescribe the educational and professional qualifications of such Magistrates, not inconsistent with the provisions of this Article.
Paragraph 12. Abolition of Certain Courts. On the effective date of this Article all courts of this State except the Supreme Court and the Court of Appeals and the Superior Courts, shall cease to exist. The General Assembly by law shall provide for the jurisdiction to transfer and complete all pending cases and enforce all prior orders and judgments of such abolished courts and for the transfer of all records and property held by the courts hereby abolished. Provided, however, that any Probate Judge of any county that serves as the administrative officer of a county as of the effective date of this Article shall continue to exercise such authority unless otherwise provided by law.
On the effective date of this Article, all Clerks of courts other than Superior Courts shall become Deputy Clerks of the Superior Court of their respective circuits. All Superior Court Clerks and all Superior Court Deputy Clerks shall, on the effective date of this Article, exercise the same powers and duties and shall be compensated in the same amount and from the same source as now compensated and shall retain all retirement benefits and the method of funding such retirement benefits and shall retain the same number of employees; provided, however, that the number of Superior Court Clerks and Superior Court Deputy Clerks, the powers and duties of such Clerks and Deputy Clerks, the amount and method of their compensation, the retirement benefits and method of funding such retirement benefits, and the number of employees of such Clerks and Deputy Clerks may be changed by law.
SECTION 4 - Uniformity of Courts
Paragraph 1. Uniformity Provided For. Except as otherwise provided in this Constitution, the jurisdiction, powers, proceedings, and practice of all courts or officers invested with judicial powers of the same grade or class, so far as regulated by law, and the force and effect of the process, judgment and decree, by such courts, severally, shall be uniform. This uniformity must be established by the General Assembly.
SECTION 5 - Attorney General
Paragraph 1. Election; Term of Office. There shall be an Attorney General of this State who shall be elected by the people, and as otherwise provided in this Constitution for the election of executive officers.
Paragraph 2. Duties. The Attorney General shall be the chief legal officer of the State of Georgi~ shall provide legal representation to the State of Georgia, its agencies, authorities, boards, commissions, and departments, and the officers thereof in connection with official acts in any civil litigation in any court, and he shall represent the State of Georgia in criminal cases when required
-3-

by the Governor and in all proceedings before the Supreme Court of the United States. He shall give his advice, when requested by the Governor or an executive officer of the State of Georgia, upon any question of law, the resolution of which is necessary to the proper performance of the duties of the Governor or such executive officer. He shall also perform such other services as shall be required of him by this Constitution or by law. Notwithstanding any other assignment of duties by this Constitution or by law, the Attorney General shall nonetheless be an officer of each Court of this State and empowered to perform any service and to exercise any right associated therewith. The Attorney General is authoized to provide such legal assistance to the General Assembly as may be required by law.
Paragraph 3. Qualifications. No person shall be eligible to hold the office of Attorney General unless he shall have been a citizen of the United States for ten years, shall have been domiciled in this State for six years next preceding his election or appointment, shall have practiced law for seven years, and shall be at least thirty years of age when elected or appointed.
Paragraph 4. Discipline, Removal, and Involuntary Retirement. In addition to any other provision of this Constitution relating to the disability of Executive Officers, or to any law enacted by the General Assembly, pursuant to this Constitution and not inconsistent therewith, relating to the suspension of Constitutional officers and department heads, the Attorney General shall be subject to the same provisions for discipline, removal, and involuntary retirement as Justices of the Supreme Court of Georgia.
SBCTION 6 - District Attorneys
Paragraph 1. Number, Term of Office,and Vancancies. There shall be a District .Attorney for each judicial circuit, whose term shall be six years. The successors of present and subsequent incumbents shall be elected by the electors of the circuit wherein the district attorney is to serve, who are qualified to vote for members of the General Assembly, at the general election held next preceding the expiration of their respective terms. All vacancies in the office of District Attorney shall be filled by appointment by the Governor. A person appointed shall serve until the first day of January of the year following the general election in which a successor can be elected.
Paragraph 2. Duties. It shall be the duty of the District Attorney to represent the State in all cases in the Superior Court of his circuit and in all cases taken up from the Superior Court of his circuit to the Supreme Court and Court of Appeals, and to perform such other services as shall be required of him by law.
SECTION 7 - Salaries of Justices, Judges, and District Attorneys
Paragraph 1. Compensation and Allowances of Justices, Judges and District Attorneys. The Justices of the Supreme Court, the Judges of the Court of Appeals, the Judges of the Superior Courts, and the District Attorneys shall receive such compensation and allowances as provided by law. The General Assembly may authorize any county to supplement the compensation and allowances of a Judge of the Superior Court and District Attorney of the Judicial Circuit in which such county lies out of the county funds.
SECTION 8 - Qualifications of Justices, Judges, Etc.
Paragraph 1. Age, Citizenship, and Practice of Law. No person shall be a Justice of the Supreme Court, a Judge of the Court of Appeals, or a Judge of Superior Courts, unless, at the time of his election, he shall have attained the age of thirty years, and shall have been a citizen of the State ten years, and have practiced law for seven years, and any Judge of Superior Court shall have been a resident of the territory comprising the circuit for which he has been elected for the three years next preceding his election or appointment. No person shall be a District Attorney, unless at the time of his election he shall have attained twenty-eight years of age, shall have been a citizen of the State for five years, and shall have practiced law for five years next preceding his election, and shall have been a resident of the territory comprising the circuit to which he is elected or appointed for the two years next preceding his election.
Paragraph 2. Discipline, Removal, and Involuntary Retirement. There shall be a Judicial Qualifications Commission. It shall consist of seven members, as follows: (i) two judges of any court of record, each selected by the Supreme Court; (ii) two members of the State Bar, who shall have practiced law in this State
-4-

for at least ten years and who shall be elected by the Board of Governors of the State Bar: (iii) two citizens, neither of whom shall be a member of the State Bar, who shall be appointed by the Governor: and (iv) one District Attorney selected by the Supreme Court. The members in office on the effective date of this Article shall serve out the remainder of their respective terms and until their successors are elected or appointed and have qualified. Thereafter, all members shall serve for terms of four years each and until their successors are elected or appointed and have qualified. Whenever any member ceases to hold the office or to possess the qualifications which entitled him to be appointed a member, his membership shall terminate, and the appointing authority shall select his successor for the unexpired term. No member of the Commission shall receive any compensation for his services but shall be allowed his necessary expenses for travel, board and lodging incurred in the performance of his duties. No member of the Commission except the Judges and District Attorney shall hold any other public office or be e1ibib1e for appointment to a State judicial office so long as he is a.member of the Commission. No member shall hold office in any political party or organization. No act of the Commission shall be valid unless concurred in by a majority of its members. The Commission shall select one of its members to serve as chairman.
A Justice or Judge of any court of this State, the Attorney General, and any District Attorney, in accordance with the procedure prescribed in this Paragraph, may be removed or otherwise disciplined for willful misconduct in office, or willful and persistent failure to perform his duties, or habitual intemperance: or for conduct prejudicial to the administration of justice which brings the judicial office into disrepute; or he may be retired for disability seriously interfering with the performance of his duties, which is, or is likely to become, of a permanent character. The Commission may, after such investigation as it deems necessary, order a hearing to be held before it concerning the removal or retirement of any official subject to the provisions of this Paragraph, or the Commission may in its discretion request the Supreme Court to appoint a special master to hear and take evidence in the matter and to report thereon to the Commission. If, after hearing, or after considering the record and report of the master, the Commission finds a good cause therefor, it shall recommend to the Supreme Court the removal, other discipline, or retirement, as the case may be, of any official subject to the provisions of this Paragraph.
The Supreme Court shall review the record of the proceedings on the law and facts, and in its discretion may permit the introduction of additional evidence and shall order removal, other discipline, or retirement, as it finds just and proper, or wholly reject the recommendation. Upon an order for retirement, such official shall thereby be retired with the same rights and privileges as if he retired pursuant to statute. Upon an order for removal, such official shall thereby be removed from office, and his compensation and allowances shall cease from the date of the order.
The Supreme Court shall prescribe rules governing privilege, confidentiality, and practice and procedure in all proceedings brought hereunder. An official who is subject to the provisions of this Paragraph and who is a member of the Commission or Supreme Court shall not participate in any proceedings involving his own removal, other discipline or retirement.
SECTION 9 - Venue
Paragraph 1. Venue Provided. Venue shall be provided by law.
SECTION 10 - Jury Trial
Paragraph 1. Right of Trial by Jury. The right of trial by jury, except where it is otherwise provided in this Constitution, shall remain inviolate, in criminal cases and on demand in civil cases, but the General Assembly may prescribe any number, not less than five, to constitute a trial, or traverse jury, except in capital felony cases.
Paragraph 2. Selection of Jurors. The General Assembly shall provide by law for the selection and compensation of persons to serve as grand jurors and traverse jurors.
-5-

STATE OF GEORGIA
SELECT COMMITTEE ON CONSTITUTIONAL REVISION SUBCOMMITTEE ON THE JUDICIARY Hearing - Room 133, State Capitol
Atlanta, Georgia October 24, 1977 1:00 o'clocK, p.m. PRESIDING OFFICER: Wayne Snow, Jr.
~---------------------------J
BRANDENBURG & HASTY
SCIENTIfiC REPORTING I
3715 COLONIAL TRAIL. DOUGLASVILLE, GEORGIA 30135 942-0482
DEPOSITIONS - ARBITRATIONS - CONVENTIONS - CONFERENCE\

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PRO C EEDINGS

1'AG1<.; 2

2 \1 MR. SNOW:

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.1 think most of you~ were at the public hearing.

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Chief Justice, you were not there, were yOU?

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5 Ii JUSTICE NICHOLS:

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Harold Hill was there.

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You missed a, very interesting gathering.

II 'J JUSTICE NICHOLS:

I read the remarks. I'm sorry I wasn't there to

hear it.

MR. SNOW:

I won't comment any further about the hearing other

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than to say that it was interesting. Marty, you have

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passed out some information?

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You have two things. One is--the one-page sheet is

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that portion of the Article V, Executive Article that deals with the Attorney General. And, as I remember, the Committee voted to place the Attorney General in the Judi~ cial Article and remove him from the Executive Article. And this just points out areas where he's mentioned in Article V and some areas where the Committee might want to see if they still want the Attorney General subject to some of the different paragraphs contained in Section III

,-----.__

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of Article v.

'J I MR. R. HARRIS:

PACE 3

It seems like we retained the question of his elec-

tion pursuant to that paragraph.

MR. HODGKINS:

Yeah. In the--

MR. SNOW:

My understanding was that Bob brought over the

language that incorporated both the Executive and the

Judicial Article.

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He did. And the only thing we would need to keep is him in ~How Elected~ in Paragraph I, Section III.

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Because we do provide: "There shall be an Attorney General of this State who shall be elected by the people as otherwise provided in this Constitution for the election of Executive Officers.~ So we'd have to leave him

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in Paragraph I and, I think, delete him from the remain-

19

ing paragraphs.

20
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We've taken care of the Qualifications separately.

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It's interesting that under the present law the Attorney

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General doesn't have to be a lawyer.

23 MR. MCKENZIE:

24
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I think in the present section there is a proviso that he has to quali--practice law.

PA.GE 4

R. HARRIS;

Yes, there is.

3 MR. HODGKINS:

But this way there was the question of just cons011-

dating it all into one Article.

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Okay.

So all we will retain in the Executive

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Article is the fact that he will be elected in that

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Paragraph I. The rest of it will be repealed. All right.

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Marty, I think we tentatively have already adopted that. So we would not need to tentatively vote on it. And your other list, Marty? HODGKINS:
We had a small subcommittee consisting of Mr. Harris and Mr. Drolet and Dean Patterson Dean Patterson and Mr. Drolet got together last Friday and reviewed the local constitutional amendments that had been adopted

18 'I
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over the years regarding--generally regarding the Judiciary. And with Cindy Nonediz' help and with Terry McKen-

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zie's help, we were able to draw all these together and they met and talked about the different amendments that have been adopted. And if you'll look below each descrip~ tion, there is a recommendation that was discussed and in~ formally adopted at that time. This is a report to the Committee as to what members of that subcommittee felt

should be done with the individual Articles. In some

cases they suggested just repeal of them; in some cases

they suggested repeal and perhaps have pending legisla-

tion to create whatever had been repealed so that there

wouldn't be a gap or we didn't delete a court or someI
thing of that sort. And some places they recommend simpl,

just to continue the amendment as it really is related to:

I think, in most cases Article IX, which deals with local

government powers. Do we need to go over these one by

to

one or--

SNOW:

I think that we will need to go through them one by

one after we have actually adopted the entire document.

But I don't think we necessarily need to do that right

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now. Do you have anything else right now, HODGKINS:
tlndicating negative response.]

Marty?

MR. SNat.,,:

All right. Let me--yes, Joe?

MR. DROLET:

One more comment on part of the problem that arose
,1
that we really hadn't thought about before. Number nine-

teen would be an example of one where clerks are created

constitutionally here or Deputy Clerks and their courts

would be repealed, like the Small Claims Court of Troup

PAGE 6

County, if they have a clerk, like I say, it's a problem

2

because in the general language we've already adopted, we,

3

say that all Deputy Clerks and everyone would continue

4

and serve in the same capacity and yet we might be elim-

5

inating the court in which they are serving. So it may

6

not be necessary to do something with the general document

7

to take that into consideration. That plus the one that

Robin was raising as to pending local constitutional

amendments--the ones that are on the--there's six of them!

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here. Ones that were passed during this last session which would go on the ballot in 1978. And then of bourse there may be some more passed this cOming session which would further--

14 ~ MR. SNOW:


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Well, of course there is nothing that points up the fact of the need for a new Judicial Article more than these local constitutional amendments that have created

18

diverse courts throughout the State. And there is a slew

19

of them that are being introduced every session of the

20

legislature for Small Claims Courts and other courts that

21

are--all of which have different jurisdiction according

22

to the various jurisdictions that they're in, which pro-

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23

bably brings us to the point where we now have got to mak,

24
L_ 25

some determination as to what direction this commission is going in and 85 to what we should do. If we should

2 3 4 5 6 7 8 9 10
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PAGE 7
- - - - - - - _ . _ - - - - - - - - - - _ . _ - - - - - - - - - - - - - - - - - - - - - - - - - - - _ .. -
finalize the recommendations at this time or if we feel

confident enough in what we have done to feel that it

should be submitted to ~e Select Committee in its pre-

sent form. We are very rapidly running out of time.

I have, in observing the past few weeks, and of

course receiving a considerable amount of correspondence

from are~ throughout the State and folks who are directly

affected by the Judicial Article, have found that there

is a great deal of concern in many areas. Most of the

concern, of course, 'as illustrated by the public hearing

last Saturday stems fro. the personal effect that this

Article will have on the individual courts. There is

tremendous concern in the State Courts especially. There

is a large amount of concern in the Probate Courts. I
hav~oted that primarily this comes from the smaller

counties where the real concern is, I think, that many of

the other probate courts recognize that the new Judicial

Article wQuld probably, in the not too distant future,

upgrade the probate oourt. I think w.'ve all had in mind

that all of the Courts--the state Courts as well as the

probate courts would definitely be upgraded in certain

areas of the State, such as my own area, for instanoe,

where in the circuit we have four counties, but we only
I
have one State Court in the County of Walker. Well, ther1

I is within that circuit a great need for a oourt to be

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2
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18 19 20 21 22
23
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PAGE 8
handling misdemeanor cases in Catoosa County, which is one of the more rapid growing counties of the State. Hopefully, the State Courts in the future could service the circuit, that they would be fulltime judges and that we would not have parttime judges as we presently have in most of the state Courts.
There is great concern, not to the extent that it exists in the probate courts or in the state Court, by the municipal courts of the state. I think that probably there is not as great a concern on their part as there would be on the others because the General Assembly, through its power to create through its charters, can-in effect what occurs as far as the judges of those courts are concerned. But there is--and again in the areas of some of these courts that have been created-these special courts. They have of course become somewhat special interest courts. They are concerned about their own positions, as to how they're to be affected by the Judicial Article.
We all recognize that there is also a great deal of concern between our Supreme Court and the Court of Appeal and that there is not agreement between those two courts as to the provisions and the recommendations that we are making as a commission.
I have to look at the whole thing on the basis of

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20
21
22
23

PAGE 9
what our recommendation will do or what effect they will have as they are presented to the General Assembly. I would be politically foolish to suggest that if you have your probate courts in 159 counties that are concerned about the recommendations of the commission. And if you have the various state Court Judges in the various circuits and the counties in which they exist, if they are opposed to the efforts of the commission. And in the few counties where they do exist, your Solicitors and your city courts or your State Courts who are definitely abolished by this Artcle: as we have tentatively--and I think it is very important to continue to reiterate that every suggestion thus far made by this commission has beeJ
I
done on a tentative basis--that we have not presented any; final draft to anyone at this time. But the letters that. I have received indicate that some folks concisder the draft that they did receive, as the final draft. And, as we are all aware who are on the commission, this isn't the case at all. In fact we specifically were not going to finalize any draft until after we had had the public hearing and then made a determination as to how many other hearings) if any, we ought to have.
What I am getting at now is this. We are one of three commission~that have been established this year to work on different Articles of the Constitution. There
__ . _ - - - - - - - _.._-----_.. ------------_. ._------_.-

PAGE 10
Ir----are three Articles that are being studied. The other two:

2

commissions have completed their work. To say the least,

3 II

the task that they had was nothing compared to the task

il
4 i:
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I
that this commission has been faced with, largely because l

5

Ii
I,II

thi~ is one of the major, it not the major, Articles of

'I

6 II II

the Constitution--well, with the three major Articles--

7 Ii

the Executive, the Legislative and the Judiciary. The

I[

1.'\

i'"Ii

Select Committee has set its goal at trying to revise eacb

Ii

9 I!i'

Article of the Constitution in a framework of at least

to

four years or, at the most, six years.

AS I stated, this is a major Article of the Constitu~

tion. I don't want any recommendations that this commis-

sion might make offhandedly or any statements that might

be made by me or others to anyone that might in any way

jeopardize the task that is before the Select Committee,

and that is, to present over a period of years new

Articles of the Constitution that can do precisely and

H5

exactly what was intended to be done--what the people in-

19

tended to be done when they ratified the new Constitution

20

of last year. Primarily that is, that they wanted a docu

21

ment that would be readable, that would be understandable

23 II
:t

and that would cut out a tremendous armount of varbage, that would be responsive to the needs of the people of this State.
So that brings us to the posture that we're in and

PACE 11
~--------~~:~---i-~~~ ~-:-~-~~e---~:-~u ty~ ;--~~ a t posture is that we really:

) \'

don't have to rush into something. I don't want us rush-'

3I

ing into something that we might have difficulty passing

4I

in this General Assembly if it were presented this year.

si

There are areas that we have that are of, as we are each

6i

well aware, primary concern and they are of personal con-

7 II

cern to the people who are going to be affected. We had

I[

8 II

at thepublic hearing several folkds who came for.th, and

I l)

they said we don't know how you're going to affect us by

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2S

this. We would prefer for you to be able to tell us exactly how we are going to be affected.
well, North Carolina, when they passed their new Judicial Articles, they did it over a period of some six to eight years and they had different parts of it that were going into effect at various times. And those persons that were then holding positions in the court system --the clerks and others--they knew where they stood when the Article passed. They knew how long they could stay in that particular position. They knew when there would be new qualifications for that particular officeholder.
I can appreciate concern when it is offered from people from the standpoint where "We think we ought to know how you are going to affect us." We're in a difficu~,t position when we can't really tell them how we're going to affect them and over what period of time. I'm rea!ly

PAGE 12
_._-----_. _'_-_.-..
r-------~U9~-:~-:~-~g---t-h-::--~~~-:--commission continue its work

2

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25

through this session of the legislature and into the Summer and go into more detail into certain aspects: have some additional hearings throughout the State: get additional suggestions. The courts that are to be affected have certain groups within those courts to make additional recommendations to us as to how they would like to see their Article. And then let us act on those recommen dations in view of what we have now as a tentative draft.
i
I
I personally am inclined to think, without consider-, able further study, that we would have tremendous difficulty in presenting this to the legislature with favorable passage, possibly with amendments on it which--some things can well be amended, But to pass a Judicial Article in this session of the legislature that I personally could not be happy with with the interests that I have in constitutional revision and have had for the p~st two years, would be a very great disappointment to me, Just to say that we passed something is not what I envision as good legislation or as good Constitution. I would like to continue the commission. I would like to be able to go to the Select Committee: advise them that we do not feel that the time has been sufficient and we've got to keep in mind that these other Articles--the Executive Article, the Legislative Article--the Articles

1',\GE 13

dealing with local government, which will also be of con-1

2

troversial or could be a controversial Article of the

3

Constitution. These~folks and others--some of us probab-!

I

4

ly working on some of them--would have considerable morel

I

5

time to deal with the subject matter than what we have ha~

I

6

in just bringing it up since this Summer through this

7

Fall. We've got many things of controversy in this

session of the legislature coming up. I would not want

to imperil the passage of this constitutional amendment

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or other legislation that might come before us with con-
troversy that can very well split the Bar of this State,
certainly that can split the courts of this state. I would prefer for us to have something that the courts
can live with, that they can understand fully as to how they would be affected by it and especially not--I'm not! referring now to our Supreme Court or Court of Appeals
i
1 1 m talking about the lower courts--the grass root courts! I
of this State which can have tremendous impact upon the

19

Representative or the Senator in that local area.

20

Now, I'm going to go around the room and 1 1 m going

21

to ask--Howard?

I 22 SEN. OVERBY:

23

I'd like, for the purpose of getting it to discussion,

24

I share with the remarks that have been made by our

chairman. Hels done a terrific job. This is a far-reach,

PAGE 14

i1

ing and very important thing. And I'd be less than
II

i- ,I

eeing frank and candid if I didn't state that, in its

II

II 3 I, i~

present form, I think the possibility of this being passed

4 Ii

by the General Assembly is practically nil. To say that

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a ground 8"'e11--

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SNO\'1:

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The more letters I get, the more that I realize that~

II'i

6 III SEN. OVERBY:

II

'-) II

To say that a ground swell has developed is putting

10

it lightly. And without going into all of the different

things, part of which the Chairman has already stated,

in view of the importance of this and the far-reaching

effects, due to the fact that great numbers of the people

concerned, whether it he their own fault or whether it be

the fault of us for not8~fficiently pUblicizing it--I

won't debate that. But I'd like to make a motion that

the Committee be continued and that we continue to work

towards the goal that we've set and that no legislation

19

be introduced at this forthcoming session, which I think-

20 lolR. SNOW:

21 II[

May I hold your motion in abeyance until we have

22 II

gone around the room and heard the comments?

23 SEN. OVERBY:

24 \I,I'

,y es,.s'J.r. Yes, s i r. I was J. ust g01..ng to do l.t to

25 lL ....__.~_:~_.i_t 0 ~~__i:__~~d~~ _~.~ ~~ ~~_~~~~__ ~_~_~' ~~_~':_. _

PAGE 15

MR. SNOW:

2

Robin, would you comment, please, sir?

3 MR. R. HARRIS:

4

Mr. Chairman, revision of the JUdicial Article has

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been something I've been closely attuned to since 1962.
,
I sat with you through the extended extra session in 1964! that George T. kept us at; served on the 1969 Constitution Revision Commission. It's my considered judgment there is no way to pass an Article of the magnitude of this one without having it first introduced in the first r year of a legislative session giving the appropriate House and Senate Committees that year in which to do those things that legislative committees do--having pUb1i hearings and this sort of thing--and taking it up then as an already reasonably well-studied matter to the second session 1978 is an election year. I'm well aware of the political implications of that. I would

have to agree that--it would be my opinion that it would

19

be an exercise in futility to introduce any Article pro-

20

posing the changes that this one would propose in 1978.

21

Of course I thoroughly enjoy the meetings with all

22

of you ladies and gentlemen, and would be just delighted

23

to continue for another year. I think it's the--but in

24

doing this, I would hope--I thought that Judge Beasley

25

made sOme very excellent remarks. I thought that Hinson I

McAuliffe brought out a couple of things that personally

I had not really thought through in depth prior to that

time. I thought his was a non-passionate, reasoned state~

ment. And I would hope that in--if the Select Committee

determines to continue this Committee that we might re-

look at the concept' of the two-tier trial system. That

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may well be what Georgia needs in view of the great disparity in the populations in the various counties to get two things--justice for the people as rapidly as possible and the correct handling of matters where they begin at the lower level as was so evidenced by the letter that the Chief Justice has from the Assistant Solicitor from somewhere in the state. I would--Itm not totally comfortable with--that we have in fact thought through everything. And all that would be needed to defeat any effort is for someone to uncover an area that we have not given consideration to and had overloOked. Because the

18 Ii
Ij 19 I

result of that would be to make everything else suspect. So I agree with you.

I !\) ! MR. SNOW:

21

Dean?

22 DEJ\N PATTERSON:

23

Mr. Chairman, I certainly respect the political acu-

24
25 l _,

men present in the three gentlemen who've spoken. And I certainly don't have any basis for disagreeing with them.

PAGE 17

So I concur in their remarks. One thing that has occur-

2

red to me is that one of the things the Committee should

3I I

attempt to do perhaps is to make a list of the v.rious

4 II

groups that would be affected by changes in the Constitu-

5 II

tion and to consider the consequences of any changes we

,

I

6 ,I

are recommending on those groups. And the Committee might !

7 IIII

.- also consider, as it gets along--further along in deliber

I / at ions what I call an educational campaign.

I 9 MR. SNOW:

llJ

You mean, where we have somebody who's a proponent

rather than everybody being opposed?

PATTERSON:

Right. And perhaps having members of the Committee

go out and talk to various groups and explain to them

what we are doing and what in fact the changes we are

proposing would be. Because one of the things that im-

pressed me about the public hearing was that T. got the

It>

feeling that not many of these persons at the public hear

19

ing had read the document and were really aware of what

20

it contained, that they had heard of a particular effect

of the proposed change and it affected them adversely.

22

So the whole thing was no good. So that's the suggestion!

I would have.

24 !MR. SNOW:

[I 2)

Thank you, sir. Dean?

l------_.- .---_._-- - ... ----.. ------------_.._-- _.._--- --------_._--- -_.

__ J

FAGE: 18

DEAN COLE:

2

Mr. Chairman, I'll agree with the speakers. I

3

think, while I found 90\ of the comments at the public

4

hearing irrelevant and misplaced, I think there was a

5

core fo comment that certainly made me stop and think

6

about the relative merits of uniformity versus unifica-

7

tion, for example, and the one-tier, two-tier system.

And I agree completely with your comment that in an under+

taking of this magnitude, to try to put something together

in four months is a mistake.

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.. 11 ~ MR. SNOW: .o..

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DEAN
I

COLE:

Well,

the

beauty of

it

is

we

have

time.

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And especially with a powerful lobby against unification, we should take more time and I--it seems to me that there is room for negotiation with the groups who were so upset with us. They--it seemed to me that they

18

made some good points and they were willing to listen.

19

It's kind of strange to say to the people who sat through

20

the hearing--that they're willing to listen. But I

21

sensed that if we could Come back with some negotiation--

22

23
\1

24 Ii

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25

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as you say, stUdy groups from those specific interests or i
1
I
who could come to something, that it would be in the bet-
ter interests of the State than a very quick move to
unification. And one thing that occurred to me, listen-
__. _i

PAGE 19

ing to the comments was a kind of a two-tier step, begin-

2

ning with uniformity and moving, at a later date, to a

3

more unified system. So I would agree with a slowdown.

4

I think it's a good idea.

5 MR. SNOW:

aoe?

DROLET:

I have a few comments, Mr. Chairman. Number one, I

feel a little bit like a doctor trying to force medicine

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down an unwilling patient--a patient that doesn't know he's sick. It would seem that what we're trying to do is put sort of an ideal system the way we all conceive it in place of what we presently have which is a somewhat disjointed, mishmash, fragmented sort of system, but one which works.
Because of that, there doesn't seem to be any ground~ swell or clamor to change the system. Despite the fact that it isn't ideal, it works and nobody is crying out that it must be changed immediately. ~ow, given that, and given the nature of the General Assembly, 1 would agree with Senator Overby and your own assessment. 'rhis,
I
at this point, would not have any chance of passing in the! G~neral Assembly. Because I don't know of anybody that's really for it and is out working for it. And we know that;
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PAGE 20
located in virtually every county of this state. 'fhe only
reservation r have in not doing something with it is, in
the future, I'm not sure there's going to be a different climate. Like many a change made toward an ideal system, we're going to step on somebody's toes or eliminate some-, one's job or create a fear of change which has been raised on the position. So that is the only reservation I have to not doing something now. Next year--! think as,
,!
with Robin's experience, I see that over the years, there!

10

will continue to be opposition.

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'l'hank NICHOLS:

you,

Joe.

Mr. Chief Justice?

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Mr. Chairman, let me say at the beginning, I have

15 .:>

felt all along that we were rushing this pretty much and

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the Judicial Article, as you've stated, is very much an

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integral part of the Constitution. And we should give

18

plenty of time to not repeat what we've done in the past

19
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20
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21
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11
23 II,I

and just go ahead and spend the taxpayers' money and not do much about it. The purpose of it, as I understand, is to obviate the necessity of meeting every so often to revise the Constitution. We want to get somewhat of a per-
I
manent document. And I think we certainly need more time~

24
25 l __

Right in line with that, let me say this. I've had three

letters. That's all I've had and one telephone call.

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.

._._ - _0_---'-- " ._ ._,,_, . .... .._,._.

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call I had was from

Judge

Elmo

PAGE Holt J

21 who

2

is, I think, the President of the Superior Court Judges

3 II

Councilor whatever that is. And he told me that he

4I

wanted to go on record and wanted me to say this--and I

I

5l

told him that I would since Marcus Calhoun is not here.

6

This would have been his job. If he had been here, I'd

7

have delegated it to him, being a Superior Court Judge.

8

But I have the highest regard for Elmo Holt and, as I do

9

of all Superior Court Judges. But he said they are not

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opposed to the unified court system nor the one-tier system. But they do feel like that they have not had enough time to study it and enough opportunity to have more input into it. And I would have to agree with him. I think that that's probably true.
The other letters I've had. Th$re was one from Winfred Smith, who's a State Court Judge up in Hall County. And he is unalterably opposed to the whole concept. After having said that, ! had one other letter

19

that! read here the last time we were here, from an

20

Assistant District Attorney about having Magistrates or

21

somebody to issue warrants and have pre-trial hearings

22

and that sort of thing. We are certainly lagging way be-

23

hind in that. But I again say that we need more time if

24

we're going to change the Constitution in a whole new

25

Judicial Article. We certainly should have more time and,

__ -.JI

1--------

PAGE 22

I

study to put into it. And I'm delighted with your remark

2I

that you recommend that we don't even present it at this

3I

time. I would go further and say this, that it seems lik$

,1 I

the lower courts or the inferior courts, getting away for

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the moment, from the Supreme court and the Court of Appeals--our little differences, I think can be worked out--but you've got your probate court, your State court, your juvenile courts and they're all concerned with this. I would suggest--and I think you suggested the same thing during the interr when we continue this--that we ought to have each one of those groups ought to be represented at some sort of a forum where they can get together maybe and work out their own problems about this thing and decide what is best to be done. And try to get some sort of a uniformity about it. ~Wh$ther or not it can be done, I don't know. But I want us all to bear this in mind. I wasn't at the public hearing. l' m sorry I couldn't be there. But I had Justice Hill repre-! senting me there and he told me about what was going on

20

and of course I read the comments. You're going to get

21

people at--only at those sort of hearings who are opposed

22
23
II
24 I'
L_ _II
25

to us. They come up to be against. They're the "aginers~" They're not the ones that's going to be for it. They wan~ to come up and protest. But I want us all to remember this one thing, and I'll close with this. And that is

PAGE 23
Ii-------~ha:-~~:-:::~tsbe 1-:~--::~he-~-eOPle. They don't be long

2

to the judqes. They donlt belong to the lawyers and they!

3

donlt belong to anyone except the publi~ at large. And

4

when welre trying to work out what is best for the pub-

5

lic, let's bear that in mind. Not whether it's going to

6

affect this particular judge or that particular clerk of

court. We tried, I thought--whoever is drawing this has

tried to take care of that in some other capacity. I

know

there

are

objections

that

the

Associate

Judges

don't

I I

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have six-year terms. Associate Judges going from this court to that court to Superior Court and they don't know what their jurisdiction is. And there are a lot of things to be worked out. But the main thing is that we want to always remember that, as I said a minute ago, you're never going to get anybody to agree--everybody to agree with a plan, no matter what it is. But we're ttyIng to do what is best for the administration of justice

and for Mr. John Q. Public at large. And the courts

19

belong to Mr. John Q. Public, amen--and Ms. Public.

20 MR. SNOW:

21

Thank you, Judge.

22 MR. SUTBBS:

23

Well, as a crossword puzzle devotee, I never could

24

keep straight Aries and Eros. One is discord and one's

25

love. And 1 1 m not sure exactly how my comments fit. But

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PAGE 24
if they get too far out, I do have an appointment out at Ray's Law School so my egghead status is legitimate. I certainly can't comment on your observations, Mr. Chairma , as to the political realities. I think you're well-known to be well-versed in those. I would say this, though, by way of introduction. That one of the great concerns about
!
the legislature being the author of constitutional amendments or Constitutions itself is that it becomes so subject to political persuasion one way or the other and perhaps represents compromise rather than what the people might prefer to have if they themselves were making the jUdgment. I know what's happened_in our own conventions when we've undertaken to use the constitutional convention method. And I don't suggest it's any better. In
W''f)4.L.
fact I expect it may be W~Qee. But what we're doing in effect is just ratifying what commentators say about the legislature being the author of the Constitution. They're writing another law, rather than a Constitution. Not only that, it seems to me that the legislature over the last year expended a great deal of energy and effort in selling to the people of Georgia that we were writing a Constitution--one of 1976--that was to be merely a vehicle for amendment. And that pursuant to the adoption and reliance upon those representations, the Select Com-
mittee was created for the purpose of moving along at an I .I

--

__ ___ __ .. --_... -..

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_~_.

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~I--- ----- e~~editiouS rate this revision,

rather

PAGE; 25
than having it

2 11

done through the lengthy political processes of the Gen-

3

eral Assembly. And that for a commission or a Committee, I

such as we are, to be delegated to come up with a recom-

mendation to the Select Committee and, in effect, say

"We can't agree," seems that we are remiss in the charge

that we have and maybe the General Assembly or the Select r Committee as its agent may not be responding to what it

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represented that it was going to do. And Lord knows
i,
there were enough reservations about the 1976 Constitutio4
to begin with iflt were not going to be the vehicle for
change. I'm not sure at all that, as Judge Nichols has men-
tioned, that the objectors., that we have now won't be here three or four years from now, perhaps more vocal. The first judicial modernization or reform commission I worked on was in 1967. And all we heard were noes. And if it hadn't been--Robin was then Chairman of House Judy
and very skillfully got those modernizations through in
the juvenile court area. And our juvenile courts are pro ,
bably as up-to-date as those in any jurisdiction. But wei I
had strength in the legislature and in the management of the bill that was prepared. Rut lots of objections.
And they're still objecting. I went down in behalf of this commission to the Judges Conference in Jekyl a few

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PAGE 26
weeks ago and it was my creature and everything that was wrong with it was my fault. I didn't blame y'all. I just pointed out that I couldn't have thought all of thes~I things up by myself. But the same people, incidentally, that were yapping down there were yapping in 1967. And they'll be around four years from now.
,
I would also like to suggest that if we go to a time~, table such as Robin referred to, the earliest opportunity that the electorate will vote on this provision will be in 1980, which is somewhat farther behind than was suggested by the Select Committee in its timetable. ;.nd if we defer action on a major portion of the Constitution such as the Judicial Article, it's likely to have an effect on every other piece of constitutional amendment that's coming along.
I realize that a lot of study is desirable and I cer tainly couldn't quarrel with the concept of giving this one tha most careful attention. I don't know about y'all but, as I think I've mentioned once before, this is the fourth one of these things I've been on for the last two and a half years. And I have heard relatively new introduced since Robin's commission convened that would persuade me to a view that what has been proposed thus far doesn't represent perhaps the best r.easoned thinking across the country with the judicial reform movements.

2

3

4

5

6

7

8

9

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PAGE 27
That's a personal judgment I may be grossly in error on. Finally, I think that if this commission--Committee
goes ahead and makes a submission to tha Select Co~mittee it has the capacity and certainly the political judgment to defer submission to the legislature yet we would have performed the charge that's given to us. Further, if they be of a mind to send it to the General Assembly, the General Assembly would then, even though this be a busy session, still have the opportunity to get the benefit of!
I
,
the type of input that influences legislative judgments, which we are getting now in these letters that people are writing to us, but are letters and ideas which I'm sure we were all aware of before we ever met here. I've been hearing the probate judges talk for several years about objecting to this organization and state court judges andi juvenile court judges and JP's been hollering ever since we've had them. "Don't do anything to us." So I'm not sure there's going to be any novel notions. And I would like to throw out in my last comment--which all of the~e are too long--is that it may well be that we can divide this Article that we've worked on and send portions of it to the Select Committee. Now, that may not be desirable because it might diminish the value of the rest of it. But there are, basically as I recall, only one or two

\r---

Ii

-

II
II

group--the unitary system, the relative jurisdiction at the appellate level and, perhaps, the voting scheme for

3 !I

the selection of judicial officers. I don't know that

4 Ii

that's a workable idea. My own feeling is that the

5

II
I'I

Select Committee gave us something to do. Ne've done it

(, Ii

or just short of a formal vote and we ought to turn it

iIi

7 I,II I'

over to them with whatever qualifications we want to give I

:1

i;

I,

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to them.

II1I
q HR. SNmv;

I,

10

Your comment~ are noted. .Tim?

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II ~MR. MILLER:

o
ll.
~

12 :

I agree with you, Mr.

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~ 0._.0 i-SUbmiSSion.

\,---/1) I

---'

14 >- MR. SNOW:

t;;

~ :J:
15 ~

Any other comments?

"or:
::J
1tJ ~MR.
o
2:
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17 ~

MILLER:
No,

sir.

Chairman,

that we

should

defer

Iii MR. SNOW:

19

Dean Beaird?

2U DEAN BEAIRD:

I

21

First, I think we all agree that the Judicial Articl~

22

needs to be revised---the one that we have presently in

23 I

the Constitution. We made a genuine effort to come up

I
with an Article that would be at least a better sUbstitut~

than the one we presently have. However, we shouldn't go

PA(;'E 29

,11------::a:~:e~::::1:::::~s:-tp:::::~:Od:::tm:::l:h:::: convinced,

can devel-+

i'

3

op as a committee. Now, I've been at several of the

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19

20

21

meetings and Ray Phillips has represented me at others.

I really don't feel as though I have a complete understan4-
\
ing of everything that we're attempting to do here. And

I think that's what some of the people that are commenting

i

on the proposed Article are saying to us. Some of the

i

comments, I'm sure, at pure emotion iand we need to devel,
I I
op some kind of mechanism to separate the real substantiv~

comments--those that have well-meaning and substance
i
I
rather than Just emotion. I think it would be appropriate !
for us to continue studying this. Hopefully, we can get

the people who are affected by this proposal to give us

written comments, analyzing this proposed Article and

telling us in what way we can improve or what way it

affects them adversely and so forth, so that this Com-

mittee is put in a position of making real judgments on

the comments. If, after this process is completed, we

determine that it's simply vested interests trying to pro~

text those interests and this is the best we can do.

22

This is the Judicial Article that would improve the qual-

23

ity of justice in the State, then I think we should go

24

with it and be prepared to fight in the legislature for

25

it through a--I don't want to use the term, but I will--

11---------------- ------------------------------------------------

PAGE 30

II

an affirmative action program to convince the people

1.

around the State that this is what they ought to accept.

I

3

But for right now, I would defer to the political judg-

!

4

ments of those who are best equipped to make them. I

5

think we ought to keep working on this a while and when

the political climate's right, to have something that we

can go to the wall with.

H. HARRIS:

I would agree with Dean Beaird. I know I, for one,

10

haven't had in my own mind sufficient time to properly

reflect on the revised Judicial Article. I thlnk one of the problems we've got here is there's going to be a nece~s-

ity of a great amount of legislation probably to enact

whatever we're-talking about passing as a new proposed

JUdicial Article and a lot of further study has got to be

done to make sure we haven't created problems by this

l~
I
I 19 20 il
21 II
22 il
23
24
l25

proposed JUdicial Article that, you know, two years from now, we suddenly may have a new Constitution and yet be left with a glaring gap somewhere that is not covered.
I would propose, I think, that we probably continue stUdying the matter. I don't think we should simply try to prepare something and recommend something just for the sake of needing something to meet a time deadline. I think, for that reason, I'd rather have more time to re-
flecton i~_to_...ak~_~~ what we' repr~pos_ing_is:he best

__._--------_.- -----_._-- -- ----- ~----_._._--_._-----------_._-_.

- ..-- ----

-----------.---

l:-'AGE 31

I,I

proposal that we could come up with.

2 MR. SNO\1:
I ,I

3I
I

This is primarily the reason that the Select Committee !

4 II

has given several years for the total revision. And car-

S Ii

tainly with this being an Article of major magnitude , tha~

h II

it should not be rushed into. Senator?

I

I
7 SEN. OVERBY:

I stated my remarks. At the proper time, I'd like

to renew my motion.

10 MR.

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SNatv: All right, sir. Charlotte?
HORAN: For a number of years I have studied or tried to
keep track of efforts at constitutional revision in otherl states around the country. And I think, if we look at it; realistically, the rejection or the approval of a new constitutional Article is accomplished on the basis of

18

the work of the JP'sand the county clerks and the county

19

employees and the sort of persons that we heard from at

20

the hearing. And I think, while I am appalled at the mis

21

understanding of our efforts *nd the superficiality of

y)

their analyses of what we were trying to do, I'm certain- I

23

ly--it was quite what I expected. I, early on , assumed

24

that whatever we were doing would not be ready, would not

be acceptable and I certainly feel that it would be of

PAGE 32

course desirable to continue the work of this Committee.

otherwise I don't see that any other Judicial Article

will ever get off the ground, particularly in view of

what we heard the other day. But specifically I was

among the minority of those who favor a two-tier system

and I really would like us to look at that again very

carefully. 1 think that there is in that a nucleus of

an acceptable plan. I still am--I think we need to work

out this business of the conflict between unification and

10

uniformity--the conflict existing between those and the

obvious disparities in the various needs of our judicial

system here in Georgia. When you have the differences

that we have between our large urban areas and our very

rural areas, how ve can come up ~ith a syst~m that has

some structure that can be called uniform and yet meet

our diverse needs, is something we need to look into.

And then I wonder whether we couldn't perhaps, as Mr.

18

Stubbs suggested, consider submission of a section by

I

19

section revision in some areas. I'm specifically referrinF

20

I
to a family court because I think here ~gain, in some partF

I

21

of Georgia, that is one of the biggest needs of the

I

22

people. We need some better organization when it comes to'l

I

23

the handling of family and juvenile problems that come be-

24

fore the court. ~nd I'd like us to look at that and see

what positive suggestions we could make. I certainly hope
_"J

n------ --.- - - - - - - - - - - - - - - - - - - . - - .--- ".'-""'''-'''''''- _ --
the Committee continues.

PAGE 33 _- .

2 MR. SNOW:

3

The Committee's going to continue.

, 4 MS. MORAN:

5I

But I think it's going to have to do it over a long

6 \!

term instead of a short term.

\1
7 II MR. SNOt~:
Ii

8I

Lucy?

I
9 I fitS. WILLIAfl1S:

10

I think excellent comments have been made, pro and

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con, but 1 1 m inclined to believe that we should hold off

(~) .-IMR' 12 :
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and not rush into anything right now. SNOW:

14 ..>..-..

Judge?

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15 ,) JUDGE SMITH:

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16 .z..

Being an old legislative animal, I look at this from

0

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two ways. You don't stand any more chance of passing

18

this-~and you know that better than I do--in the January

19

Session of the legislature this year than we do flying to i

I

20

the moon without a rocket. They're just not going to pas~

21

I
it because the legislature doesn't understand what it is.

22

And till the legislature understan~what it is, I guaran-

23

tee you won't pass it. And until we come up with some

24
I
lL_ :'')

kind of proposed, in writing, way that this new Constitution is going to be implemented-~what's it's going to do

PAGE 34

~-- ---- -----------.--.--.---- ---------------------------.-. with the people that are in office now--how they're going

2

to be taken care of, and until they see it in writing,

3 II

you're not going to sell it three years from now. We

4 II

have got to show them, when this new Constitution is put

'I

5

into effect, how they're going to be taken care of or

I

6 I!
II

what's going to happen in some kind of proposed recommend~

7 Li

cd legislation. Whether or not that gets through the

II

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legislature--that has nothing to do with it. Because as

9I
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Charlotte said a moment ago, the courthouse people in thi$ state will decide whether this Constitution is passed or defeated. And if they aren't for it, you're not going tol
I
pass it. I don't care if you pass it through the legis1a ture, you're not going to pass it. Because if the courthouse people--if you've never been in a small county on Election Day and helped hold elections and been around it you don't know who passes a constitutional amendment in this State. It's the clerks and the sheriff and the jus-

18

tices of the peace and the ordinary that pass the consti-

19

tutional amendment in this State or they defeat it. And

20

if they want to defeat one, it won't pass. You can get

21

your bottom dollar on that. So we've got to come--not on y

22

come up with what we're going to recommend. We've got to

come up with the way that we think it's going to be im-

plemented--somebody has--and you've got to do that before

you can sell these people on it throughout the state.

l'AI,}E 35

Now, I know that what was said there last Saturday--a lot

2

of it was irrelevant and misplaced. But it's not irrele-

vant and misplaced when thpy put it on the leginlators'

ears. Because it's going to be placed right firmly in

their brains and they ain't going to pass it. That's llll

there is to it. And we've just got to come up with a

suggested, recommended way to implement it once it's ever'
i
passed by'this Committee. And I don't see any reason why;

we should shift it to the big Committee. t'1e 'rc jus t

to

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passing the buck. what are we g05ng to do--shift it to the big Committee and tell them W0. think it can be passed or we don't think it can be? The place to stop it and recommend it be continued is in this Committee right here' because the responsibility was placed upon our shoulders to decide what whould be done about it. And I think we're just pas*ing the buck to pass it on up to the larger Committee. And I am completely in accord with the Chairman

Ii'
II} II
20 I I I
21 II

~~~ go~in that this thing should be continued until ~e not only have it to the point that we think it should be put to the people, but we should have a recommended way in which it should be implemented once it's pass~d. And

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I'm with them.

23
MR. SNO',i:

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Harry?

BEXLEY:

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21

Well, I agree wit~ the pros and cons on both sirles. On account of I'm not practicing law--maybe I should be--. I'm not d judge, so I can sit on this side over here and look at John Q. Public. I think that's, as the Chief Justice put it, real clear that the John Q. Public is
{JU>
going to be the ul tima te one that ~ the say anywa.y. Inasmuch as we have created all these lower courts out here--t\:ds traffic court, this city court, this criminal court--we have them in every area of the State and every one of those people have an axe to grind. They've got their own little domain that we have created by legislation. Now, in my own opinion, the only way we're ever going to get the type of judicial reform that we really need is going to be a two-tier system of courts. Charlotte, I have to agree with you on that. And then we can get uniformity and that's the only way we're going to get it. Because as you said--and I agree with each one of you--the courthouse people control this State still. They're going to--we don't like to think it, but they still do. And unless we can come up with a proposal that, would put two tiers of courts in this State--unlform courts--I think ten years from now, we'll be doing the same thing we're doing here. And I strongly recommend that we look into the possibility of studying more indepth of a two-tier system to better suit the people here

n--------------- '._- .-_._. -'.",._-----'-'-._--"------ -'.-....-' .---------, .---

P.\GE 37

HIi

wi th the fami ly courts and the small cases. Probably we

2 I'I,
II

need some quick justice like that--inexpensive justice

II

-) ii
Ii

is where we need it. So I concur with you, Wayne, that

4 il

we should study it more and I second the motion.

5 IIII!' MR. SNOH:

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The motion has been made and seconded that thiR

I'II

commission continue in its efforts on through the year

'I

~ Ii'

1978, that the Chairman report back to the Select Commit-I

\1

9 II

tee that we do feel that the Judicial Article is such

10

that it needs continued study, that we have not had the

time to fully come up with a document that we feel com-

fortable in presenting to the General Assembly or to the

people of Georgia in 1978, and that our report be post-

r>--

poned until sometime in 1978 so that the General Assembly:

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in 1979 can be presented with the recommendations of this

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commission. That is the motion, I understand.

z
17 t'i"t. SEN. OVERBY:

Ix

That's the motion.

19 MR. SNOhl:

20

It has been seconded. Those in favor of the motion

21

wil indicate by raising your right hand. fA show of

22

hands.] Twelve. Those opposed? [One hand. I One

opposed.

24 i .JUDGE S!U TIl :

[I 25 l1_._

hOW_~~_~~_~~_~n BOb, ....y..o._.'.l.._.. know

feeling now, don't you?

~-!:R. STURns:

PAGE 38

2 II

Hell, I con't want to be an obstructionist. I just

3I

think we ought to turn it over to them.

II 4 I' ~1P.. SNOv.l: !i

~

I would certainly express my disappointment that we

()

were unable to Come up with something in a very short

7

period of time. But I tell you, it's one of the most

l~

frustrating things in the world in the legislature--and

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19

George T. and Howard and Robin know that you stand through hearings and you extensively study a particular matter for some time and then you get on the floor of the, legi~lature and some of the questions that are asked you, you feel like are so insignificant and so immaterial,
"1~
which ~ are, but those Representatives and Senators asking those questions have not been involved as much as you have in that proposed committee room where you just sit anc you talk and everybody agreed with one another or disagreed to come up with some conclusion. And it's--manr
I
times it's like trying to rehash on the floor or on a oneT

20

to-one basis the hours that we put in in this Committee

21

when we hash it out. Some of those folks want to have

22
23
24
25 I
II

that same type of information and I think we're going to have to go forth throughout the State in several areas as a commission to hear from people and also to be like we were not the other day. And that's--we just didn't have

PAGE 39

any pros that were there. The "anti" did show up. But

2

we're going to have to be presenting ourselves and give

3

the reasons for it out in the boondocks. I've even heard

4

several folks who've come up, who've written me and they

5
I,iI

said, "We don't like the Missouri Plan." If you recall
i

6

those things I said the first time it was presented--that,

\1

I

i

7I

if that's in there, we'll never pass this document and

8 II

we didn't ever put it in there. But there are some folks:

9 II

that think it's tgere.

10

Now, I would like to do one thing. What I want--

CJ
II .~.. IX

we're not going to set another date for a meeting of this

.00...

12

IX U

commission at this time. Because I think, first of all,

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the report has to go back to the subcommittee

.. 14 >- DEAN COLE:

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15 .:>
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Mr. Chairman, I'd like to make a statement. It

16

ID
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seems to me there are two--we've had two favlors of com-

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17

IX
'"

ments around the table and, in my mind, they're distinct.

tH

And I, for one, would like to go on record as opposing

19
20 21
22
23 I
24 II
I,
1 25 II

one in favor of the other. It seems to me that some of

the speakers were very concerned with comin9 ~p with a I

.1

~

j'

feasible document. And I think Bob stubbs ~eloqucntly

stated the proposition that that's not our goal. My vote

for continuing the process is in terms of feeling, as I
believe is shared by many of us, that we have not yet ~~
_ to what we consider is the best possible document and

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PACE 40 have not yet sorted out all the varieties of effect that this might have on the State and the courthouse personnel But it bothers me somewhat if we are going forward in the spirit of coming up with something that will pass the Georgia legislature. It seems to me that our function is greater than that. There is education--educational value
in suggesting reform in a state even if a legislature does not in fact buy it. And because it begins a--the ball rolling down that maybe ten years from now, something happens. So I would just say shortly that it seems

to me that, as we go forward, I would prefer to go forward

with the notion that we are still grappling with the basid

issues to come up with a document that we consider, as a

>-
I-

Committee, the best for the people of the State. And not

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15 ~

move into a next stage of deliberations thinking that,

"IX
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16 .~..
oz

well, now we've got to do something that's "feasible."

17 : MR. SNO~l :

18

No, I support you totally in that assessment. Be-

19
I 20
21 22

cause there is enough politics that will get into it when

I

it does get into the legislature. I want to, when we cornel

I

I

up with a finalized document, it will be something that

I I

I

each member of this commission can stand behind and will

23

be supporting at that time. But not necessarily somethin~

24
I
I
I
25 I IL_

that will just please someone in the political field. ~o, I totally agree with that. Are there any other com-

[

2I

3

Ii
I

I

4I !

5

I
I

6

I
II

7I

PAGE 41 ments right now? I would like to do one thing. And that is, Mr. Chief Justice, if you would appoint three members, of the court--Supreme Courti [speaking to Judge Smith) if you will ask the Chief Judge to appoint three members of your court, for the six of them to be able to get togethe from time to time before we meet again to see if we can come up with some way to resolve any differences that are

8

between your two courts. In view of that also, Marty, I

<) II
10
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12 ~
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would like for us to contact the Georgia Municipal Association for some input. If the Justices of the Peace--I
:
think they've got two distinct, different oreganizations,'
I
each fighting one another. But if we can get some input
from them along with the State Court Judges Association,
Trial Judge and Solicitors. And get me some names there
and if it's agreeable with the commission, I will ask
them to get together to come up with some recommendations'
to come back to this commission.

18 MR. STUBBS:

19

There's a City and County Attorneys Association, too

20

you might want to contact.

21 MR. SNOW:

22

Okay. Bob, do you know of anybody else--Bob Doss?

23 I MR. DOS S :

24 I

Well, you might want to include the Superior Court

:S L_J_UdgeS_~n_~he~e,-~aY~~ ~_ey~rev ry_c:c~rned about it.

PACE 42

All right. well, somehow we--I think I'd rather have them on another level. I think we can get two different committees here to come up with some recommendations.

Are the juvenile court judges included in--

Let me clarify one thing with all of you right now

10

on one subject. I keep hearing, well, we don't want

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judges not elected. Other than the juvenile judge, it has--I gather that it is the opinion of the majority of 'us that our judges should still be elected rather than

.. 14 >-

being appointed. Do I read any of you wrong on that?

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But that the juvenile judge should be--continue to be

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16 .~..

appointed

o

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17 :Z.1R. R. HARRIS:

18

It depends on what level "judge" you're referring to.

19

I think--

20 'MR. SNOW:
21

i
I
I I'm referring to the State Court Judges, the S uperl.or,I

22

Court Judges and that level. I'm not referring to Magis- i

trates.

24 IMF. R. HARRIS:

25 !I
~

Okay.

,
J

-----_..- - _.._-----_.__._-_._._.._._-_ MR. SNOt-1:

_.. _--_.. - ..

PAGE 43

2

Or the folks we have put in the category of Magis-

trates. So the State Court Judges that were appearing

before us' were convinced that they were going to be

appointed and I think that was a misconception that they

had.

MR. STUBBS:

The juvenile court judges have a lot of unhappiness ;

with the draft. And they have an organization of their

10

own that works under--with Bob's office.

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SNOW: Well, I would like to be in a position to give that
assurance--that the State Court Judges, the commission feels that they should continue to be elected. That on that ~rial level, if there are other courts that are being created that would be similar to State courts that are now electec, that they should be elected. The juvenile

IH

court, however, would continue to be similar to what it

Ii}

is now and would be appointed by the Superior Court Judges

20

of the circuit or the Chief Judge. I think in some area

21

the Chief Judge appoints them and in others, the majority

of the court. In our circuit, I think the Chief Judge

: t23 I

appoints.

co: ~:~;d~Oo:n~h::g;:;~:: v~;~::t::n::~:::~::t::nSt:::t

PAGE. 44

~ ---------~ere some --~~-.~:~- problems that may have arisen Saturday

2 II'I,I

that were actually misconcJptions on the part of those

II Ii

who were testifying.

4 !I JUDGE SMITH:

5

!'II
I

We have the probate jUdges taken care of on the COffi-j

II

() :I,I

mittee, don't you"l

II 7 :1 MR. SNOW:

I:

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Well, the probate judges would be in the one--should;

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be in the trial--Superior and Trial Court Judges.

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H. HARRIS: Mr. Chairman, I think one thing we ought to give
some thought to, at that Saturday hearing I think we hear~ an awful lot of noise about the short notice or lack of notice and I think probably a lot of that was blown out of proportion. That presents what, you know, we might call a cheap shot at somebody who wants to take it for the act of the Committee. And I think something that

18

ought to be considered in the future, when we get down to

19

coming up with a proposed draft of something, even if it

20

may be somewhat burdensome, but at least to insure that

21

we're getting the proposals out with a notice when a

22
1,I\
nI

hearing will be to--it might be necessary to end it to every Superior Court Judge and every state Court Judge anJ

Ii 2\ 25 I~i-

every Juvenile Court JUdge. But at least if you did that: and did it a week or two ahead of time, you're not going

PAGB 45

to have them come up the afternoon before or the morning

2

of, and say, "Well, I heard about it at a cocktail party

3

last night. Otherwise, I never would have even known

4

about it." And r know I've run into two or three jUdges

5

that have said--

6 MR. SNOW:

7

All right. All these particular associations need

x I,ii

to he noti fied.

9 IIMR. H. HARRIS:

10

Possibly even so far as the individual judge. I'm

not so sure the associations are getting the word out.

For what reason, I don't know but--

SNm']:

Well, the ones that we've received letters from,

Marty, we've got a list of them here and every time we'll

send those folks who have made inquiries. I would like

to further say, Prentiss, to you and to Dick, now, when

18

we have meetings on Saturday, we have to go to them and

I think the press ought to be there also. And don't thin~ :

20

because you weren't there, we didn't raise hell with you

21

because you weren't. We told them that one of the reason~

they didn't know anything about any of these meetings tha~

you all never showed up to any that we had.

24

COLE:

2S

~r. Chairman, before we go, I want to get clear about

L'AGE 46

answer. We say in Paragraph 10, that any person selected or appointed as an Associate Judge and I think that's some of the problem. Now, is it our position that the state Court and the Probate Court will continue to be elected?

10

15 ~

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... 16

III
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18

19

20

21

22
:3

24

25

I think that when we call them Associate JUdges that: we will say that the Associate Judges of the Superior Courts shall be elected, other than the juvenile court judge. Now, we will not say that there shall be a probatr divtsion in each county or that there shall be a State Court in each county. Because that needs to be left up to the general law as to how we're going to set that up. And we possibly can come up with some legislation this
,
I
next year on a basis whereby we go ahead with the legisla~ i
tion to be introduced simultaneously to set them up. They may not go into effect for eight years but to really let folks know how they're going to be affected and when they're going to be affected by it. And I think that's where we're failing somewhat here. I like what North Carolina did and they did it over eight or ten years. And so, your courts do stay as they are for a while, but then that--the probate court eight years from now in every

PAGE 47

county would become an associate court with certain quali

2

fications of the person holding it or it would be a cir-

3

cuitwide court with a fulltime person to handle the dutie,

4

of probate. Taking into consideration the additional

5

legislation for whatever the probate court is now doing

6

outside the judicial field, let somebody else take that

7

responsibility over, such as issuing permits to hold a

8

gun and things of that sort.

9 JUSTICE NICHOLS:

to
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or:
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18

Let me say this right in line with that. In Alabama: Hal Heflin, when he was Chief Ju*tice over there as all of you know if you followed the courts, he did a tremendous job over there reforming the whole ~udicial Article of the State of Alabama. He was the spearhead that did it. But it's beginning to--they're beginning to realize over there now that they moved a little too fast on it and that's some of the kickbacks that they're getting as a result of that. They didn't make proper--didn't take

19
20
21
22 23 24
L_ 2') I

into consideration every aspect of it or what happened.
And that's going to happen with anybody whenever you do-if you wait a long time. Because you're--thc lons~r you wait and work on it. the fewer bugs you're going to have.
But you're going to have some bugs when and if we ever do put it into effect. But Alabama did theirs very hurtiedly
I
and they're now reaping the ~hi~lwinds, so to speak, as a

PAGE 48
I-------------~-::~~~--:-;~:~----~--~as_:_~-~:~:~- to some of the--well, one of

2

the state Court Senators, Bo Cole, who worked with the

Chief Justice. I had lunch with him here the other day.

And he was his righthand man on getting this thing put

through over there in Al\ama. And he was telling me--
1\
said, "Don't go at it too has tily. II And if any- -and by

the way, he's a migh~good man if we need any help on it.!
I
MR. SNOW:

I was just fixing to say. Let's get that down--Bo

10

Cole from Alabama and also they've got a real good fello~i

:

--I've heard him once before--from North Carolina. I'll

get with you on that, Marty. And at the next meeting, I

think we have of the commission, I think it might be good

..>..-

to bring in someone from either Alabama or North Carolina


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15 .:.

and let them tell us how they did this thing.

C>

16 .~:':.">. JUSTICE NICHOLS:

oz
17 ::;

You let me know when you're going to have your next

18

meeting in advance and I'll get Bo Cole over here.

19 HR. SNOW:

20

Would you take care of that, Marty? All right. Any

21

further comments? Suggestions? If not, we stand ad-

22

journed.

23

'Whereupon, the above-entitled proceedings were adjourned

24 at 2:20 o'c-ock, p.m.)

PAGE; 49

C E R T I F I CAT E

..,

I hereby certify, as the court reporter, that the

3

statements that appear in the proceedings were taken steno-

4

graphically by me, and thereafter reduced to typewriting by

5

me, and that this transcript is a true and accurate record to I

6

the best of my ability.

7I

H I'
9 II
to
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11 i= Ill: ...0 Go.
12 Ill:
@ r .U.. j: u~ '" 14 .>..'<"l % 15 ,) "Ill: ;;) 16 .z'.". III Z <l '" 17 Ill:
18

DARLENE F. AKINS, CCR
Notary P"i:Jlic, Georgia. SIal. al large My (ommi".:Jn Expire5 Aug. 3, 1980

19

20

21

22

23

24

25

1" " "INDEX
Committee to Revise Article VI Full Committee Meeting Held on Oct. 24, 1977

Proceedings. p. 2

FULL COMMITTEE MEETING, 10-24-77

ARTICLE V: EXECUTIVE BRANCH

Section III: Other Elected Executive Officers

Paragraph I:

Other elected executive officers, how elected (special reference to Attorney General) pp. 2-4

ARTICLE XI: MISCELLANEOUS PROVISIONS

Section~: Miscellaneous. Provisions

Paragraph IV:

Continuation of certain Constitutional amendments for a period of four years (as they relate to Article VI). pp. 4-8

Chairman's review of Committee performance and comments. pp. 8-48