Do we elect our judges in Georgia? That seems like a yes or no question, doesn’t it. But in the words of Coach Lee Corso, “Not so fast!” Why is that hard to answer? Because it depends.
You may have seen in the news a recently filed lawsuit challenging the Governor’s appointment of three newly created positions on the Georgia Court of Appeals. The basis of this challenge to the gubernatorial appointments is that the Georgia Constitution requires judges to be elected. The Georgia Constitutional provision the challengers are relying on states: “All justices of the Supreme Court and the judges of the Court of Appeals shall be elected on a nonpartisan basis for a term of six years.” While the Constitution does provide the governor with the power to appoint persons to vacancies “in certain circumstances,” those circumstances are limited in the Constitution to “death, resignation, or otherwise,” the suit said.
That language “shall be elected” seems pretty strong, doesn’t it? “Shall” has always been interpreted in legal parlance to be mandatory. No ifs, ands or buts. So the challengers seem to have a point, right? The exception to the mandatory election is only “death, resignation or otherwise.” It does not say in the case of a newly created position on the bench. Many Georgia voters may assume we elect our judges. But the truth is the Governor gets to appoint a vast majority of judges. For example, if a judge retires prior to the completion of his or her term, the Governor has the right to appoint that judge’s successor. Only if a judge completes his or her term of office until the next election will the voters of Georgia actually elect that judge’s successor. Are you wondering whether the judge in your county was elected or appointed? That information is readily available. And consider this: if the Governor appoints someone to fill a vacancy on the bench, then that person will run as an incumbent in the next election. As a practical matter, it is extremely difficult to beat an incumbent judge in Georgia. So the power of appointment by the Governor is pretty important.
Judge Goger, a Fulton County Superior Court judge, recently heard oral argument on the issue and just yesterday, issued his opinion that the appointments by Governor Deal were, in fact, constitutional. But hold all tickets. The challengers, who have now lost in the trial court, have vowed to take their case to the Georgia Supreme Court on appeal.
So stay tuned. I’ll be watching this case in the Georgia Supreme Court and will keep you posted. In the meantime, if you are actually faced with voting in an election for a judge and you are not sure who to vote for, consider reaching out to a lawyer you know to ask for his or her opinion. They are likely to know the lay of the land regarding judicial candidates.
Robin Frazer Clark pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others. Ms. Clark is the 50th President of the State Bar of Georgia and a Past President of Georgia Trial Lawyers Association and has practiced law in Georgia for 26 years. Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer. Robin Frazer Clark~Dedicated to the Constitution’s Promise of Justice for All.