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JUDICIAL COUNCIL OF GEORGIA

General Session

Friday, December 8, 2017 10 a.m. – 12:00 p.m.

The Carter Center Cyprus Room

453 Freedom Parkway Atlanta, GA 30307

Judicial Council of Georgia General Session

The Carter Center

Cyprus Room 453 Freedom Parkway

Atlanta, GA 30307

Friday, December 8, 2017 10 a.m. – 12 noon

Lunch will be served immediately following the Council meeting

1. Preliminary Remarks and Introductions (Chief Justice P. Harris Hines, Est. Time – 5 Min.)

2. Approval of Minutes, October 20, 2017 (Action Item) TAB 1 (Chief Justice P. Harris Hines, Est. Time – 2 Min.)

3. Final Report: Court Reform Council TAB 2 (Judge Charles Bethel, Georgia Court of Appeals, Est. Time 15 Min.)

4. Preparing for the 2018 Legislative Session

(Rep. Wendell Willard and Mr. Tyler Mashburn, Est. Time – 20 Min.)

5. Judicial Council Committee Reports

A. Legislation Committee (Action Item) TAB 3 (Presiding Justice Harold D. Melton, Est. Time – 10 Min.)

B. Technology Committee TAB 4 (Presiding Justice Harold D. Melton, Est. Time – 5 Min.)

C. Misdemeanor Bail Reform Committee (Action Item) TAB 5 (Judge Wayne M. Purdom, Est. Time – 15 Min)

D. Strategic Plan Committee TAB 6 (Judge W. Allen Wigington, Est. Time – 15 Min.)

E. Judicial Workload Assessment Committee (Action Item) TAB 7 (Judge David Emerson, Est. Time – 5 Min.)

F. Education and Training Committee (Action Item) TAB 8 (Judge Brian M. Rickman, Est. time – 5 Min.)

6. Report from Judicial Council/AOC TAB 9 (Ms. Cynthia H. Clanton, Est. Time – 10 Min.)

7. Reports from Appellate Courts, Trial Court Councils & State Bar TAB 10 (Est. Time – 10 min.)

A. Supreme Court

B. Court of Appeals

C. Council of Superior Court Judges

D. Council of State Court Judges

E. Council of Juvenile Court Judges

F. Council of Probate Court Judges

G. Council of Magistrate Court Judges

H. Council of Municipal Court Judges

I. State Bar of Georgia

8. Reports from additional Judicial Branch Agencies TAB 11

A. Council of Accountability Court Judges

B. Institute of Continuing Judicial Education

C. Georgia Commission on Dispute Resolution

D. Council of Superior Court Clerks

E. Georgia Council of Court Administrators

9. Old/New Business (Chief Justice P. Harris Hines, Est. Time – 5 Min.)

10. Outgoing Members (Chief Justice P. Harris Hines, Est. – 5 Min.)

11. Concluding Remarks and Adjournment (Chief Justice P. Harris Hines, Est. Time – 5 Min.)

Judicial Council Meeting Calendar – 2018 Friday, February 23, 2018 10 a.m. – 2 p.m. Sloppy Floyd Building/Atlanta, GA Friday, April 27, 2018 12 p.m. – 5 p.m. UGA Conference Center/Athens, GA Wednesday, August 8, 2018 10 a.m. – 2 p.m. Hilton Marietta/Marietta, GA Friday, October 19, 2018 12 p.m. – 5 p.m. Middle Georgia College/Macon, GA Friday, December 7, 2018 10 a.m. – 2 p.m. Sloppy Floyd Building/Atlanta, GA

Judicial Council Members As of July, 2017

Supreme Court Chief Justice P. Harris Hines Chair, Judicial Council 507 State Judicial Building Atlanta, GA 30334 404-656-3475/F 657-9586 [email protected] Presiding Justice Harold D. Melton Vice-Chair, Judicial Council 501 State Judicial Building Atlanta, GA 30334 404-657-3472/F 651-8642 [email protected] Court of Appeals Chief Judge Stephen Dillard 47 Trinity Avenue, Suite 501 Atlanta, GA 30334 404-657-9405/F 657-8893 [email protected] Vice Chief Judge Christopher McFadden 47 Trinity Avenue, Suite 501 Atlanta, GA 30334 404-656-3450/ F 651-6187 [email protected] Superior Court Chief Judge Kathy S. Palmer President, CSCJ PO Box 350 Swainsboro, GA 30401 478-237-3260/F 237-0949 [email protected] Judge Stephen D. Kelley President-Elect, CSCJ Brunswick Judicial Circuit 701 H Street, Suite 201 Brunswick, GA 31520 912-554-7372/F 264-8145 [email protected] Judge Stephen Scarlett Brunswick Judicial Circuit, 1st JAD Glynn County Courthouse 701 H Street, Box 203 Brunswick, GA 31520 912-554-7356/F 554-7387 [email protected] Judge Stephen Goss Dougherty Judicial Circuit, 2nd JAD P.O. Box 1827 Albany, GA 31702 229-424-2683/F 431-2174 [email protected]

Judge Arthur Lee Smith Chattahoochee Judicial Circuit, 3rd JAD PO Box 1340 Columbus, GA 31902 706-653-4273/F 653-4569 [email protected] Chief Judge Courtney Lynn Johnson Stone Mountain Judicial Circuit, 4th JAD 7240 DeKalb County Courthouse 556 N. McDonough Street Decatur, GA 30030 404-371-2457/F 687-3511 [email protected] Chief Judge Gail S. Tusan Atlanta Judicial Circuit, 5th JAD T8955 Justice Center Tower 185 Central Avenue SW Atlanta, GA 30303 404-612-8520/F 302-8524 [email protected] Judge Brian Amero Flint Judicial Circuit, 6th JAD Henry County Courthouse One Courthouse Square McDonough, GA 30253 770-288-7901/F 288-7913 [email protected] Judge Jack Partain Conasauga Judicial Circuit, 7th JAD PO Box 732 Dalton, GA 30722 770-278-6713/F 278-6714 [email protected] Judge Donald W. Gillis Dublin Judicial Circuit, 8th JAD PO Box 2016 Dublin, GA 31040 478-275-7715/F 275-2984 [email protected] Judge Bonnie Chessher Oliver Northeastern Judicial Circuit, 9th JAD P.O. Box 409 Gainesville, GA 30503 770-297-2333/F 822-8662 [email protected] Judge Carl C. Brown Augusta Judicial Circuit, 10th JAD 735 James Brown Blvd., Suite 4203 Augusta, GA 30901 706-821-2347/F 721-4476 [email protected]

State Court Chief Judge Gregory Fowler President, CStCJ Chatham County 133 Montgomery Street, Room 430 Savannah, GA 31401 912-652-7565/F 652-7566 [email protected] Judge Nancy Bills President-Elect, CStCJ Rockdale County 922 Court Street Room 305 Conyers, GA 30012 770-278-7724/ F 918-6695 [email protected] Juvenile Court Judge James Whitfield President, CJCJ Cobb Circuit 32 Waddell Street Marietta, GA 30090 770-528-2428/F 528-2576 [email protected] Judge Philip Spivey President-Elect, CJCJ Ocmulgee Judicial Circuit P.O. Box 1810 Milledgeville, GA 31059 478-445-7060/F 445-7059 [email protected] Probate Court Judge Rooney Bowen III President, CPCJ Dooly County P.O. Box 304 Vienna, GA 31092 229-268-4217/F 268-6142 [email protected] Judge Sarah S. Harris President-Elect, CPCJ Bibb County P.O. Box 6518 Macon, GA 31208-6518 478-621-6494/F 621-6686 [email protected]

Magistrate Court Judge James M. Griner, Jr. President, CMCJ Screven County PO Box 64 Sylvania, GA 30467 912-564-7375/F 564-5618 [email protected] Judge Glenda Dowling First Vice-President, CMCJ Pierce County 3550 US Hwy 84, STE 2 Blackshear, GA 30045-6900 770-822-8081/F 822-8075 [email protected] Municipal Courts Judge LaTisha Dear Jackson President, CMuCJ Municipal Court of Stone Mountain 875 Main Street Stone Mountain, GA 30083 770-879-4981/F 879-4976 [email protected] Judge Matthew McCord President-Elect, CMuCJ Municipal Court of Stockbridge 4602 North Henry Blvd Stockbridge, GA 30281 770-389-7906/F 389-7969 [email protected] State Bar of Georgia Mr. Brian D. “Buck” Rogers President, State Bar of Georgia Two Alliance Center 2560 Lenox Road NE, Suite 1250 Atlanta, GA 30326 404-591-1800/F 574-6248 [email protected]

All email addresses follow this format: [email protected]

Administrative Office of the Courts

244 Washington St. SW, Suite 300 Atlanta, GA 30334

Cynthia H. Clanton, Director 404-656-5171

As of November, 2017

Director’s Office Budget Maleia Wilson 404-656-6404 Governmental and Trial Court Liaison Tracy Mason 404-463-0559 Tyler Mashburn Legislative Liaison 404-651-7616 Robert Aycock 404-463-1023 LaShawn Murphy 404-651-6325 James Rodatus 404-656-5453 Human Resources Stephanie Hines 404-657-7469 Jacqueline Booker 404-463-0638 General Counsel Jessica Farah 404-463-3805

Judicial Services Christopher Hansard Division Director 404-463-1871 Research and Data Analysis Carla Hardnett 404-232-1857 Matthew Bishop 404-656-0371 Shimike Dodson 404-656-2614 Jeffery Thorpe 404-656-6413 Callie Weir 404-463-6887 Court Professionals John Botero 404-463-3785 Bianca Bennett 404-463-6478 Angela Choice 404-463-6478 Herbert Gordon 404-653-5127 Tynesha Manuel 404-463-3785 Amber Richardson 404-232-1409

Communications, Children, Families & the Courts Michelle Barclay Division Director 404-657-9219 Jerry Bruce 404-656-5169 Patricia Buonodono 404-463-0044 Elaine Johnson 404-463-6383 Paula Myrick 404-463-6480 Bruce Shaw 404-463-6106 Ashley Stollar 404-656-6783 Financial Administration Drew Townsend CFO/Division Director 404-463-9016 Kim Burley 404-463-3816 Monte Harris 404-656-6691 Matthew Kloiber 404-463-5177 Janice Harkins 404-463-1907 Tanya Osby 404-463-0237

All email addresses follow this format: [email protected]

Tax Intercept Michael Cuccaro 404-656-7780 Information Technology Jorge Basto Division Director 404-657-9673 Willie Alcantara 404-519-9989 Bradley Allen 404-657-1770 Omar Chin 404-657-8180 Stephanie Cooper 404-227-2395 Christopher Cutts 470-733-9404 Angela He 404-651-8169 Christina Liu 404-651-8180 Tony Mazza 404-657-4006 Michael Neuren 404-657-4218 Juawon Osby 470- 747-9785 Wanda Paul 404-538-0849 Sterling Perry 470-446-3930 Kriste Pope 404-731-1358 Pete Tyo 404-731-1357

Georgia Judicial Exchange Tajsha Dekine 404-656-3479 Arnold Schoenberg 404-463-6343 Ji Zhang 470-733-8444

Directions to The Carter Center 453 Freedom Parkway Atlanta, Georgia 30307 From North of Atlanta 1. Take I-75 or I-85 South to Exit 248C, which says "Freedom Parkway, The Carter Center." 2. Continue on Freedom Parkway about 1.8 miles, following the signs to The Carter Center. 3. As you loop around The Carter Center, follow the signs to entrance # 3 (Executive Offices). From South of Atlanta & Hartsfield-Jackson Atlanta International Airport 1. Take I-75 or I-85 North to Exit 248C, which says "Freedom Parkway, The Carter Center." 2. Continue on Freedom Parkway about 1.8 miles, following the signs to The Carter Center. 3. As you loop around The Carter Center, follow the signs to entrance # 3 (Executive Offices). From West of Atlanta Follow the same directions as above or: 1. Begin on North Avenue. 2. Continue east (toward Decatur) on North Avenue until you come to N. Highland Avenue. You will see a neon art gallery, a gas station, and Manuel's Tavern at this intersection. 3. Turn right onto N. Highland Avenue. 4. Go to the next light at Freedom Parkway and turn right. 5. The Carter Center is on the left. Continue on Freedom Parkway to entrance # 3 (Executive Offices). From East of Atlanta 1. Take Ponce de Leon towards downtown (west) to N. Highland. 2. Turn left on N. Highland. 3. Continue to the second traffic light at Freedom Parkway and turn right. 4. The Carter Center is on the left. Continue on Freedom Parkway to entrance # 3 (Executive Offices).

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Anderson Conference Center Macon, GA October 20, 2017 ● 1:00 p.m.

Members Present Chief Justice P. Harris Hines, Chair Presiding Justice Harold D. Melton Judge Courtney Johnson Judge Nancy Bills Judge Rooney Bowen Judge Carl C. Brown Judge Albert Collier (for Judge Brian

Amero) Chief Judge Stephen L.A. Dillard Judge Glenda Dowling Judge Gregory Fowler Judge Donald W. Gillis Judge Stephen Goss Judge James M. Griner, Jr. Judge Sarah Harris Judge Stephen Kelley Judge Shawn LaGrua (for Judge Gail S.

Tusan) Judge Matthew McCord Vice-Chief Judge Christopher McFadden Judge Bonnie Chessher Oliver Judge Kathy S. Palmer Judge Jack Partain Mr. Brian Rogers

Judge LaTisha Dear Jackson Judge Stephen Scarlett Judge Arthur Lee Smith Judge Philip Spivey Judge James Whitfield Staff Present Ms. Cynthia Clanton, Director Mr. Brad Allen Ms. Michelle Barclay Mr. John Botero Mr. Christopher Hansard Ms. Stephanie Hines Mr. Tyler Mashburn Ms. Tracy Mason Mr. Tony Mazza Ms. LaShawn Murphy Mr. James Rodatus Ms. Tara Smith Ms. Ashley Stollar Mr. Drew Townsend Guests (Appended)

Call to Order and Welcome

The meeting of the Judicial Council of Georgia (Council) was called to order at 12:55

p.m. by Chief Justice Hines. He recognized State Bar of Georgia President Mr. Rogers and

administered the Council’s oath to him. The Chief Justice recognized those representatives

sitting in as designees for absent members1, as well as Representative Andy Welch and Macon

Mayhem Coach Kevin Kerr attending as special guests. Members and designees identified

themselves for the purposes of roll call, followed by staff and guests.

1 See Members Present

2

Adoption of Minutes – August 9, 2017

Chief Justice Hines directed the Council’s attention to the minutes of the August 9, 2017,

meeting. A motion to approve the minutes was offered by Judge Palmer, followed by a second

from Judge Bowen. No discussion was offered and the motion was approved without opposition.

Legislative Remarks

Representative Andy Welch spoke to the Council about the State budget, including the

process, revenues, obligations and upcoming priorities. He encouraged the Council to be

prepared when presenting budget requests to the legislature, for the best chance of success. Rep.

Welch thanked the Council for the opportunity to speak and noted it was his honor to be a

member of the Georgia Bar as well as the House of Representatives. Chief Justice Hines thanked

Rep. Welch for his work.

Committee Reports

Judicial Workload Assessment Committee. Judge Palmer presented for adoption the final

proposed civil and domestic relations filing forms authorized by Senate Bill 132 (included in the

materials). She noted that the Committee had solicited input from many stakeholders during this

process and the drafts had been reviewed extensively. Judge Palmer additionally asked that the

Committee be authorized to correct any typos or style errors in the proposed drafts. Chief Justice

Hines stated the request for a motion to vote on the civil and domestic filing and disposition

forms and to make any stylistic changes that may be needed. Judge Gillis made the motion, with

a second by Judge Kelley. The Council approved the forms as presented without opposition, with

the authorization to make any stylistic changes needed.

Strategic Planning Committee. Judge Wigington deferred to the written report and

advised that the formation of the subcommittee to update the Council’s Emergency Operations

Plan is almost complete.

Access, Fairness, Public Trust and Confidence Committee. Chief Justice Hines

introduced Ms. Karlise Grier as the new Executive Director of the Chief Justice’s Commission

on Professionalism; she continues to serve as a volunteer attorney to the Committee at this time.

Ms. Grier spoke to the Americans with Disabilities Act (ADA) Position Statement, which was

provided to the Council earlier this year as an informational item; the statement has been

approved by the Supreme Court and will be included in the ADA Handbook moving forward.

3

Education and Training Committee. Ms. Hines deferred to the written report and advised

that the Committee, chaired by Judge Brian Rickman, is on track to report its recommendations

to the Council at the December meeting.

Misdemeanor Bail Reform Committee. Judge Wayne Purdom provided a progress report

on the work of the Committee. The Committee will next meet on October 31 and has been asked

to provide a preliminary report to the Criminal Justice Reform Council on November 8.

Reports from the Judicial Council/AOC

Ms. Clanton reported on the recent work and activities of the agency, including

communications efforts and information-sharing regarding courthouse closures during Hurricane

Irma; the commencement of the time and motion study for superior and state courts, in

conjunction with the NCSC; the “Day on the Bench” events in the Piedmont and Middle Judicial

Circuits; the attention given to cybersecurity and the planned transition from the use of listservs

to the Intranet tool; and, the continued growth of the Tax Refund Intercept Program. Ms. Clanton

introduced two new staff members and closed her remarks by stating the agency’s continuing

commitment to serving the judiciary.

Reports from Appellate Courts and Trial Court Councils

Supreme Court. Chief Justice Hines referred members to the written report provided in

the materials. He spoke to the recent administration of the Bar Exam and recognized Mr. John

Sammon, Office of Bar Admissions, in the audience. The Chief Justice also announced that the

Supreme Court had recently joined Twitter, stating it is an important tool for communication.

Justice David Nahmias spoke further to the news and stated that the Court would be using it to

further reach and accessibility of public information.

Court of Appeals. Chief Judge Dillard welcomed the Supreme Court to Twitter and

commended the Court as a leader in transparency. He spoke to the nominations of Judge Tripp

Self, Judge Billy Ray and Judge Lisa Branch to the federal bench and stated that the Court is

preparing for these anticipated transitions.

Council of Superior Court Judges. Judge Palmer referred members to the written report

provided in the materials. She announced that Executive Director Sandy Lee would be retiring

and Shannon Weathers, General Counsel, would be serving as Interim Director effective

December 1.

4

Council of State Court Judges. Judge Fowler referred members to the written report

provided in the materials.

Council of Juvenile Court Judges. Judge Whitfield reported that the Council’s fall

seminar would be held next week in Athens, and the Business Meeting would include votes on

revised Uniform Rules, forms, and docketing guidelines. All are results of the juvenile code

rewrite of 2013.

Council of Probate Court Judges. Judge Bowen referred members to the written report

provided in the materials. He recognized Judge Danielle McRae for her work on the Council’s

new Traffic Certification Program.

Council of Magistrate Court Judges. Judge Griner referred members to the written report

provided in the materials.

Council of Municipal Court Judges. Judge Dear Jackson referred members to the written

report provided in the materials. She reported that the Council had approved its mentoring

program at the October Business Meeting.

State Bar of Georgia. Mr. Rogers was recognized to speak on behalf of the State Bar.

Council of Accountability Court Judges. Judge Goss reported on the recent activities of

the Council, including the success of the training conference held in Athens in September.

Georgia Commission on Dispute Resolution. Ms. Tracy Johnson referred members to the

written report provided in the materials.

Council of Superior Court Clerks. Ms. Tina Blankenship expressed appreciation for being

included in the process to draft the new civil and domestic relations filing forms. Mr. Mike

Holiman spoke to upcoming proposed revisions to the Jury Composition Rule.

Georgia Council of Court Administrators. Ms. Tracy Johnson noted that the Council is

celebrating its 20th anniversary this year and thanked the Judicial Council for its support. She

noted that the fall training conference would take place next week in Jekyll Island.

Old Business

No old business was offered.

New Business

No new business was offered.

Concluding Remarks

5

Chief Justice Hines thanked everyone for their work and reminded all that the next

Council meeting will be held on December 8, 2017, at 10 a.m.

Adjournment

Hearing no further business, Chief Justice Hines adjourned the meeting at 2:27 p.m.

Respectfully submitted:

______________________

Tracy Mason Assistant Director, Judicial Council/AOC For Cynthia H. Clanton, Director and Secretary

The above and foregoing minutes were approved on the _____ day of ___________________, 2017.

____________________________________

P. Harris Hines Chief Justice


Anderson Conference Center Macon, GA October 20, 2017 ● 1:00 p.m.

Guest List Mr. Doug Ashworth, Institute of Continuing Judicial Education Mr. Joe Baden, Third Judicial Administrative District Ms. Tee Barnes, Supreme Court of Georgia Mr. Tracy J. BeMent, Tenth Judicial Administrative District Ms. Tina Blankenship, Council of Superior Court Clerks Mr. Bob Bray, Council of State Court Judges Mr. Steve Ferrell, Ninth Judicial Administrative District Ms. Karlise Grier, Chief Justice’s Commission on Professionalism & JC/AOC volunteer attorney Ms. Christine Butcher Hayes, State Bar of Georgia Trooper Dexter Harden, Georgia State Patrol Mr. Kevin Holder, Council of Probate Court Judges Mr. Mike Holiman, Council of Superior Court Clerks Judge Joyette Holmes, Council of Magistrate Court Judges Mr. Eric John, Council of Juvenile Court Judges Ms. Tracy Johnson, Georgia Commission on Dispute Resolution Ms. Cheryl Karounos, Georgia Public Defender Council Mr. Kevin Kerr, Guest Judge Danielle McRae, Council of Probate Court Judges Mr. Charles Miller, Council of Superior Court Judges Ms. Tia Milton, Supreme Court of Georgia Mr. David Mixon, Second Judicial Administrative District Mr. Jay Neal, Criminal Justice Coordinating Council Ms. Debra Nesbit, Association County Commissioners of Georgia Ms. Jody Overcash, Seventh Judicial Administrative District Judge Wayne Purdom, State Court of DeKalb County Mr. Bob Reiss, Guest Ms. Sharon Reiss, Council of Magistrate Court Judges Mr. John Sammon, Office of Bar Admissions Mr. Will Simmons, Sixth Judicial Administrative District Mr. Robert Smith, Prosecuting Attorneys’ Council of Georgia Ms. Nydia Tisdale, citizen journalist Mr. Shannon Weathers, Council of Superior Court Judges Representative Andy Welch, Georgia House of Representatives Judge W. Allen Wigington, Council of Magistrate Court Judges

FINAL REPORT Submitted to Governor Nathan Deal

November 20, 2017

Final Report: Court Reform Council ii

Members of the Court Reform Council

Hon. Christopher M. Carr – Attorney General of Georgia, Chairman of the Court Reform Council Hon. Charlie Bethel – Judge, Court of Appeals of the State of Georgia Hon. Trent Brown – Judge, Superior Court of the Ocmulgee Judicial Circuit Dennis T. Cathey – Member, Cathey & Strain, LLC Hon. Christian Coomer – Majority Whip, Georgia House of Representatives Hon. Bill Cowsert – Majority Leader, Georgia State Senate Chris Cummiskey – Executive Vice President of External Affairs, Georgia Power Hon. Asha Jackson - Judge, Superior Court of the Stone Mountain Judicial Circuit Hon. Michael Malihi – Chief Judge, Office of the State Administrative Hearings Carey Miller – Executive Counsel (Incoming), Office of Governor Nathan Deal Hon. Mary Margaret Oliver - Georgia House of Representatives Hon. Nels Peterson – Justice, Supreme Court of Georgia David Werner – Executive Counsel (Outgoing), Office of Governor Nathan Deal

Final Report: Court Reform Council iii

TABLE OF CONTENTS

Court Reform Council .......................................................................................................................................... 2

Introduction ......................................................................................................................................................... 2

Administrative Procedure Act Subcommittee .................................................................................................... 4

Introduction ......................................................................................................................................................... 4

Summary ............................................................................................................................................................. 5

Final Decision Authority ..................................................................................................................................... 6

Enforcement Authority ...................................................................................................................................... 11

Filing Hearing Requests Under the APA .......................................................................................................... 13

Statewide Business Court Subcommittee.......................................................................................................... 16

Introduction ....................................................................................................................................................... 16

Summary ........................................................................................................................................................... 17

Background of the Business Court Concept ..................................................................................................... 19

Proposing a Statewide Business Court in Georgia ............................................................................................ 21

Sovereign Immunity Subcommittee .................................................................................................................. 26

Introduction ....................................................................................................................................................... 26

History of Sovereign Immunity in Georgia....................................................................................................... 27

1991 Constitutional Amendment ...................................................................................................................... 28

Sustainable Coast and Other Recent Decisions ................................................................................................ 29

Lathrop v. Deal ................................................................................................................................................. 30

Potential Paths Forward .................................................................................................................................... 32

Constitutional Amendment ............................................................................................................................ 32

Legislation ..................................................................................................................................................... 32

Combination Approach.................................................................................................................................. 36

No Action ...................................................................................................................................................... 36

Other Potential Issues and Actions.................................................................................................................... 37

Final Report: Court Reform Council 2

COURT REFORM COUNCIL INTRODUCTION On March 30, 2017, Governor Deal signed an Executive Order establishing the Court Reform Council to “review current practices and procedures within the judicial court system and the administrative law hearing system and make recommendations to improve efficiencies and achieve best practices for the administration of justice” by December 1, 2017.

Attorney General Chris Carr was appointed Chairman of the Council.

During its first meeting, the Court Reform Council agreed to establish the following three subcommittees to carry out the charge Governor Deal outlined in his Executive Order:

• The Administrative Procedure Act o Chaired by The Honorable Michael Malihi, Chief Judge, Office of the State Administrative

Hearings • Statewide Business Court

o Chaired by Carey Miller (Incoming) and David Werner (Outgoing), Executive Counsel to Governor Nathan Deal

• Sovereign Immunity o Chaired by The Honorable Chris Carr, Attorney General of Georgia

The Court Reform Council met on May 23, 2017; July 17, 2017; September 25, 2017; and November 15, 2017, and the subcommittees met regularly during this time frame as well. This report, divided by subcommittee, contains the findings and recommendations of the Court Reform Council. The Court Reform Council respectfully submits this final report to Governor Deal for his consideration.


ADMINISTRATIVE

PROCEDURE ACT

SUBCOMMITTEE


ADMINISTRATIVE PROCEDURE ACT SUBCOMMITTEE INTRODUCTION

Members of the Administrative Procedure Act Subcommittee

Hon. Michael Malihi Chief Judge, Office of State Administrative Hearings (Chair) Hon. Charlie Bethel Judge, Georgia Court of Appeals

Hon. Christopher M. Carr Attorney General of Georgia

Hon. Bill Cowsert Majority Leader, Georgia House of Representatives

Carey Miller Executive Counsel (Incoming), Office of Governor Nathan Deal Hon. Mary Margaret Oliver Georgia House of Representatives

Hon. Nels Peterson Justice, Supreme Court of Georgia

David Werner Executive Counsel (Outgoing), Office of Governor Nathan Deal The Administrative Procedure Act Subcommittee (“Subcommittee”) was created to review current practices and procedures within Georgia’s administrative law hearing system. Through this comprehensive review, the Subcommittee has made recommendations to improve efficiencies and achieve best practices for the administration of justice. The Subcommittee held two public meetings on June 22 and August 11, 2017.

The Subcommittee heard from a number of individuals with various insights into the intricacies of administrative law, including Fulton County Superior Court Judge Shawn LaGrua; Jessica Gabel Cino, Associate Dean for Academic Affairs and Associate Professor of Law at Georgia State University College of Law; Judge Ronit Walker of the Georgia Office of State Administrative Hearings; and Judge John B. Gatto of the U.S. Occupational Safety and Health Review Commission. In addition, the Subcommittee reviewed statistical caseload data provided by the Georgia Office of State Administrative Hearings.

The Subcommittee also accounted for national trends in administrative law, having reviewed the most recent version of the Model State Administrative Procedure Act. Additionally, the Subcommittee reviewed feedback provided by the chief administrative law judges from Florida and North Carolina; a former administrative law judge who has written extensively on final decision authority; and the executive director of a comprehensive study on central administrative law panels throughout the United States.

The Subcommittee’s recommendations have been informed by its review and consideration of this information.


ADMINISTRATIVE PROCEDURE ACT SUBCOMMITTEE SUMMARY Final Decision Authority Existing Law: All decisions issued by the Office of State Administrative Hearings (“OSAH”) are initial

decisions, unless an agency provides by rule that OSAH may enter final decisions. “Initial decisions” are subject to agency review, while “final decisions” are reviewed by superior courts.

Reform Option: Provide the authority to issue final decisions for all contested cases. Exceptions shall be

made for cases referred by agencies that are (i) responsible for licensing and supervising professionals; and (ii) were constitutionally created or are headed by constitutional officers.

Enforcement Authority Existing Law: When a subpoena is disobeyed, a party may seek enforcement through the superior court

of the county where the contested case is being heard.

In cases where an individual disobeys a lawful order, refuses to testify, or commits similar misconduct, the administrative law judge (“ALJ”) may certify the facts to the superior court where the offense was committed. The superior court, in turn, takes “appropriate action,” which may include making a finding of contempt.

Reform Options: (A) Provide the power to enforce subpoenas when individuals do not appear for administrative proceedings (through fines).

(B) Provide the authority to sanction parties (e.g., through fines) for such actions as

disobeying lawful orders, refusing to testify, filing pleadings that contain frivolous arguments, or other similar misconduct.

Filing Hearing Requests Under the Administrative Procedure Act Existing Law: There is no set deadline by which agencies must refer contested cases for hearings before

OSAH’s ALJs. Reform Option: Establish that agencies must refer contested cases within a reasonable time period after

the hearing request is filed. If the agency does not refer the case by the deadline, parties will be allowed to file hearing requests directly with OSAH.


ADMINISTRATIVE PROCEDURE ACT SUBCOMMITTEE FINAL DECISION AUTHORITY Existing Law Under the Administrative Procedure Act (“APA”), all decisions issued by the Office of State Administrative Hearings (“OSAH”) are treated as initial decisions, unless an agency provides by rule that OSAH may enter final decisions in all or certain classes of cases. O.C.G.A. § 50-13-41(d), (e)(3). An “initial decision” is subject to additional review by the agency, either by request of the party or on order of the agency. O.C.G.A. § 50-13-17(a). A “final decision,” in contrast, is subject to immediate judicial review by a superior court. O.C.G.A. § 50-13-19. Reform Option

1. Modify the APA to provide the authority to issue final decisions for all contested cases. Exceptions shall be made for cases referred by agencies that are

(i) responsible for licensing and supervising professionals, and which are comprised of members

selected by the governor for their expertise in their respective fields; and

(ii) were constitutionally created or are headed by constitutional officers.

Suggested Exceptions to Final Decisions (i.e., keep as Initial)

Professional Licensing Boards Division Professional Standards Commission Real Estate Appraisers Board and Real Estate Commission Department of Insurance State Personnel Board Secretary of State, Elections Division Secretary of State, Commissioner of Securities Peace Officer Standards and Training Council Composite Medical Board Board of Medical Examiners Office of the Governor


Advantages to Reform Option

• Efficiency: Finality removes an unnecessary level of review, thereby promoting judicial economy. o May lead to faster proceedings (30-60 days reduction in process). o Reduces the burden on taxpayers. o Reduces overall litigation costs for parties.

• Impartiality: Finality strengthens the appearance of impartiality, as an agency can no longer overturn

decisions issued by an impartial body.

• Precedent of Final Decisions for Other Agencies: Multiple agencies with significant caseloads already refer cases to OSAH for the issuance of final decisions, including:

o Department of Driver Services/Department of Public Safety (DDS/DPS) (12,923 cases referred to OSAH in FY17).

o Department of Human Services (DHS), Office of Child Support Services (8,847 cases referred to OSAH in FY17).

o DHS, Office of the Inspector General (1,530 cases referred to OSAH in FY17). o DHS, Child Abuse Registry (1,331 cases referred to OSAH in FY17).


CASE REFERRALS FOR FY17, BY TYPE OF DECISION

PROJECTED IMPACT OF REFORM OPTION (using FY17 case referral numbers)


CASE REFERRALS FOR FY17, BY TYPE OF DECISION

•

Case Description Final/Initial Count (FY2017)Dep't of Driver Servs.-Dep't of Public Safety Final 12,924DHS, Child Support Servs. Final 8,847DHS, Office of the Inspector General Final 1,530DHS, Child Abuse Registry Final 1,331Tollway Authority Final 1,005Tax Tribunal Final 987Dep't of Education Final 144Board of Natural Resources Final 66DHS, Division of Family and Children Servs. Initial 12,880Dep't of Community Health Initial 626Dep't of Behav. Health & Dev. Disab. Initial 243Dep't of Early Care and Learning Initial 227Dep't of Labor Initial 180Professional Licensing Boards Division Initial 81Professional Standards Commission Initial 38Care Management Organizations Initial 34Real Estate Appraisers Board-Real Estate Commission Initial 11Dep't of Insurance Initial 13Dep't of Transportation Initial 9State Personnel Board Initial 8Sec. of State, Elections Division Initial 8Dep't of Public Health Initial 7Mediations Initial 7Secretary of State, Commissioner of Securities Initial 6Gov't Transparency and Campaign Finance Commission Initial 6DHS, Vocational Rehabilitation Agency Initial 5Peace Officer Standards and Training Council Initial 5Composite Medical Board Initial 5Student Finance Authority Initial 4Dep't of Juv. Justice Initial 2Public Retirement Systems Initial 1Office of Consumer Protection Initial 0Dep't of Revenue Initial 0Board of Medical Examiners Initial 0DHS, Division of Aging Servs. Initial 0County and Municipal Probation Advisory Council Initial 0Dep't of Economic Development Initial 0Office of the Governor Initial 0State Properties Commission Initial 0

Final: 26,834Initial: 14,406

Total: 41,240

Case types highlighted in red represent the exceptions to finality, as proposed in the Reform Option


• Recent Legislation: Within the past five years, the General Assembly has explicitly provided ALJs

with final-decision authority. o For Tax Tribunal cases: See O.C.G.A. §§ 50-13A-10, 50-13-16(g), 50-13-17; 2012 Ga. Laws

318 (H.B. 100). o For Child Abuse Registry cases: See O.C.G.A. § 49-5-183; 2015 Ga. Laws 552 (S.B. 138).

• Nationwide Trend: Observers of trends in administrative law have reported a nationwide evolution in

central review panels being given the authority to issue final decisions.1 o North Carolina: ALJs “shall make a final decision or order” in contested cases. See N.C. Gen.

Stat. § 150B-34(a). o Florida: The state’s APA does not allow for finality in all matters. See Fla. Stat. § 120.50 et

seq. However, other statutes allow for finality in multiple case types, including child support establishment, workers’ compensation, and special education. See Fla. Stat. §§ 409.2563, 440.25, 1003.57.

o Louisiana: Apart from certain enumerated exceptions, “the administrative law judge shall issue the final decision or order.” See La. Rev. Stat. § 49.992(B)(2).

o South Carolina: ALJs have the authority to issue final orders, with the exception of cases for the Public Service Commission, Consolidated Procurement Code, Department of Employment and Workforce, and the Workers’ Compensation Commission. See S.C. Code Ann. §§ 1-23-600, 1-23-610.

• Model State APA: The 2010 Model State Administrative Procedure Act does not provide that ALJs shall issue final decisions.2 However, the 2010 version has generally fallen out of favor.

o No states have adopted the 2010 version of the Model. o The 2010 Model’s stance on finality was opposed by both the National Conference of the

Administrative Law Judiciary and the American Bar Association. Disadvantages to Reform Option

• Agencies: ALJs issuing more final decisions could reduce agencies’ authority over decisions directly affecting them.

o Agencies are staffed with experts in respective fields.

1 Based on a phone conference on August 2, 2017, with OSAH staff and the following individuals: the Honorable Robert S. Cohen, chief judge of the Florida Division of Administrative Hearings; the Honorable Julian Mann III, chief judge of the North Carolina Office of Administrative Hearings; Larry Craddock, who previously served as an ALJ in Texas and penned a 2013 law review article titled “Final Decision Authority and the Central Panel ALJ”; and Malcolm C. Rich, executive director of Chicago Appleseed Fund for Justice who is spearheading a comprehensive study on central ALJ panels. 2 The relevant portion of the 2010 Model State APA states as follows: “If the administrative law judge is delegated final decisional authority, the administrative law judge shall issue a final order. If the administrative law judge is not delegated final decisional authority, the administrative law judge shall issue to the agency head a recommended order in the contested case.” Model State Admin. Proced. Act § 606 (2010). The Model State APA is drafted by the National Conference of Commissioners on Uniform State Laws.


ADMINISTRATIVE PROCEDURE ACT SUBCOMMITTEE ENFORCEMENT AUTHORITY Existing Law The APA gives an agency representative or ALJ the authority to “sign and issue subpoenas.” O.C.G.A. § 50-13-13(a)(6). When a subpoena is disobeyed, a party may seek enforcement through the superior court of the county where the contested case is being heard. O.C.G.A. § 50-13-13(a)(7). Also pursuant to the APA, an ALJ has the power to take action when a party (1) disobeys or resists a lawful order of process; (2) does not produce materials as ordered; (3) refuses to appear after having been subpoenaed; (4) refuses to take the oath to testify; and (5) refuses to testify after taking the oath. O.C.G.A. § 50-13-13(b). The ALJ may then certify the facts to the superior court where the offense was committed “for appropriate action, including a finding of contempt.” Id. Reform Options

1. Modify the APA to provide the power to enforce subpoenas when parties do not appear (through the imposition of fines that can be enforced by a superior court, if necessary).

2. Modify the APA to provide the authority to sanction parties (e.g., through the imposition of fines that can be enforced by a superior court, if necessary) for such actions as disobeying/resisting lawful orders of process; failing to produce material as ordered; refusing to appear after having been subpoenaed; filing frivolous pleadings; and refusing to take the oath to testify.3

Advantages to Reform Options

• Efficiency: Allowing for imposition of sanctions lessens the need for parties to seek action in superior courts while their case is ongoing.

o Reduces the amount of time needed for parties to enforce subpoenas in proceedings, as they do not need to go before a superior court.

o Discourages parties from issuing subpoenas to individuals they know or suspect will not appear (and thereby manufacturing grounds for a continuance).

• Curbing Improper Pleadings: ALJs may sanction attorneys or parties who submit pleadings for an improper purpose, or pleadings that contain frivolous arguments or arguments that have no evidentiary support. See, e.g., Fed. R. Civ. P. 11.

3 Enforcement authority should be limited to OSAH ALJs only, as opposed to both OSAH ALJs and agency representatives. OSAH ALJs are trained judicial officers who act as neutral third parties in disputes involving agencies. Accordingly, they are the more appropriate parties to impartially wield enforcement power that will directly affect an agency’s position in a contested case.


• Precedent in State Law: The State Board of Workers’ Compensation has authority by statute to

impose and collect fines. See O.C.G.A. §§ 34-9-18, 34-9-60.4

Disadvantages to Reform Options

• Efficiency: Superior courts may not face a high volume of requests for actions on sanctions or subpoenas.

4 Regarding civil penalties:

(a) Any person who willfully fails to file any form or report required by the board, fails to follow any order or directive of the board or any of its members or administrative law judges, or violates any rule or regulation of the board shall be assessed a civil penalty of not less than $100.00 nor more than $1,000.00 per violation.

(b) Any person who knowingly and intentionally makes any false or misleading statement or representation for the purpose of facilitating the obtaining or denying of any benefit or payment under this chapter may be assessed a civil penalty of not less than $1,000.00 nor more than $10,000.00 per violation.

(c) In addition to the penalty and assessed fees as defined in subsection (b) of Code Section 34-9-126, the board may assess a civil penalty of not less than $500.00 nor more than $5,000.00 per violation for the violation by any person of Code Section 34-9-121 or subsection (a) of Code Section 34-9-126.

(d) Any penalty assessed under subsections (a), (b), and (c) of this Code section shall be final unless within ten days of the date of the assessment the person fined files a written request with the board for a hearing on the matter.

(e) Any person, firm, or corporation who is assessed a civil penalty pursuant to this Code section may also be

assessed the cost of collection. The cost of collection may also include reasonable attorneys' fees.

(f) All penalties and costs assessed under this Code section shall be tendered and made payable to the State Board of Workers' Compensation. All such penalties shall be deposited in the general fund of the state treasury.

O.C.G.A. § 34-9-18. Regarding subpoenas:

. . . Article 2 of Chapter 13 of Title 24 shall govern the issuance and enforcement of subpoenas pursuant to this Code section, except that the board, any member of the board, or any administrative law judge shall carry out the functions of the court and the executive director shall carry out the functions of the clerk of the court. The board shall not, however, have the power to order imprisonment as a means of enforcing a subpoena. The board shall have the power to issue writs of fieri facias in order to collect fines imposed pursuant to this Code section and such writs may be enforced in the same manner as a similar writ issued by a superior court.

O.C.G.A. § 34-9-60(a).


ADMINISTRATIVE PROCEDURE ACT SUBCOMMITTEE FILING HEARING REQUESTS UNDER THE APA Existing Law Certain agencies that receive requests for a hearing in a contested case will refer the case to OSAH. O.C.G.A. § 50-13-41(a)(1); GA. COMP. R. & REGS. 616-1-2-.03. However, under the current APA, there is no set deadline by which agencies must make these referrals. Reform Option

1. Establish that agencies must refer contested cases within a reasonable time period after the hearing request is filed. If the agency does not refer the case by the deadline, parties will be allowed to file hearing requests directly with OSAH.

Advantages to Reform Option

• Efficiency: Deadlines and/or direct filing with OSAH would improve the overall flow of cases from agency to ALJ.

o Reduces any lag time between a party’s request for a hearing and OSAH’s docketing of the case. o Gives parties certainty as to when their cases will be received and docketed by OSAH for a

hearing.

• State/Federal Requirements: Filing deadlines would assist the State in meeting state and federal statutory deadlines for certain decisions.

Disadvantages to Reform Option

• Setting Deadlines: Agencies may find it difficult to meet a set deadline, depending on the type of case. o Agencies often attempt settling cases with party before submitting case to OSAH. o Agencies reaching settlements have to wait for boards/commissions to convene to approve them;

meetings often months apart.


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STATEWIDE

BUSINESS COURT

SUBCOMMITTEE


STATEWIDE BUSINESS COURT SUBCOMMITTEE INTRODUCTION

Members of the Business Court Subcommittee Carey Miller Executive Counsel (Incoming), Office of Governor Nathan Deal (Chair, Incoming) David Werner Executive Counsel (Outgoing), Office of Governor Nathan Deal (Chair, Outgoing) Hon. Charlie Bethel Judge, Georgia Court of Appeals Hon. Trent Brown Judge, Superior Court of the Ocmulgee Circuit Hon. Christopher M. Carr Attorney General of Georgia Dennis T. Cathey, Esq. Member, Cathey & Strain, LLC Hon. Christian Coomer Majority Whip, Georgia House of Representatives Chris Cummiskey, Esq. Executive V.P. of External Affairs, Georgia Power Hon. Asha Jackson Judge, Superior Court of the Stone Mountain Judicial Circuit The Business Court Subcommittee (“Subcommittee”) was created to evaluate the feasibility and efficacy of a statewide Business or Complex Litigation Court. The Subcommittee held two public meetings on July 13 and November 1, 2017, along with another discussion on September 25, 2017. The Subcommittee heard from a number of individuals with experience practicing in business courts, including local practitioners who have litigated cases in such courts: Fulton County Superior Court Chief Business Case Division Judge John Goger; former State Bar President Bill Barwick, who was involved in the formation of that Fulton Court Division; representatives of the Georgia Trial Lawyers Association; Georgians for Lawsuit Reform; as well as the Chief Business Court Judge of the North Carolina Business Court, James Gale, who provided an overview of North Carolina’s court which has been in place since the mid-1990s. In addition, the Subcommittee was provided and reviewed written materials published by the American Bar Association and others concerning the structure and experience of business courts in other states. The Subcommittee benefitted greatly from these materials, and from hearing directly from those with experience in business courts. Our recommendations have been informed by our review and consideration of this information.


STATEWIDE BUSINESS COURT SUBCOMMITTEE SUMMARY The Business Court Subcommittee of the Court Reform Council recommends the constitutional creation of a statewide business court in Georgia. The Georgia Business Court would provide specialized expertise for the adjudication of complex cases, ultimately enhancing litigation of complex matters by providing judicial resources specifically tailored to such cases. Throughout the course of its work, the Business Court Subcommittee has considered the following general framework as it relates to the establishment and practice of a Georgia Business Court. Creation and Structure of the Georgia Business Court

The Subcommittee recommends this Georgia Business Court (GBC) be established with statewide jurisdiction. Cases could be filed in the superior or state court of any judicial circuit but would be transferred and removed to the GBC based on the jurisdictional requirements discussed herein. Technology and videoconferencing may be used to facilitate remote participation for some matters, such as pre-trial hearings, to reduce travel costs. If, however, a case goes to a jury trial in the GBC, the venue would be subject to current Constitutional requirements and the trial would be held in the filing location. Transfer/Removal

Litigants seeking to transfer or remove to the GBC would be subject to some temporal limit on when a removal petition could be filed. A party opposing transfer to the GBC may file a petition in opposition seeking to remand a case to the superior or state court in which it was filed. A GBC judge would rule on the issue of proper subject matter for removal/remand to/from the GBC. Subject Matter Jurisdiction and Appealability

The Business Court Subcommittee proposes limiting the subject matter jurisdiction of the GBC to the following topics:

• Actions brought pursuant to or governed by the Georgia Business Corporation Code, Uniform Partnership Act, Uniform Limited Partnership Act, Revised Uniform Limited Partnership Act, or Limited Liability Company act;

• The Uniform Commercial Code; • Securities; • Antitrust; • Intellectual property; • Actions arising out of or rooted in E-commerce that meet an amount-in-controversy requirement; • Cybersecurity; • Biotechnology; • The Georgia International Arbitration Act; • Professional malpractice claims with a duty arising out of a business dispute that do not involve personal

injury, subject to an amount in controversy requirement; and, • Contract or business tort cases, subject to an amount in controversy requirement.


The Committee proposes that decisions of the GBC would be appealable to the Georgia Court of Appeals, consistent with recent statutory changes to the jurisdiction of Georgia’s appellate courts. Judicial Selection and Qualification

Given the purpose of the Business Court—providing judicial resources tailored to the unique needs of complex litigation—the Subcommittee proposes that judges in the GBC be appointed, rather than elected, and have a demonstrable track record of experience in complex litigation practice. An ideal candidate would have at least 15 years of practice in business and/or other complex litigation. Given the experiential requirements of such judges, longer terms of office for the judges may also be necessary.


STATEWIDE BUSINESS COURT SUBCOMMITTEE BACKGROUND OF THE BUSINESS COURT CONCEPT The Overall Value and Benefit of a Statewide Business Court

Specialized courts dealing with complex business matters have been in the United States in one form or another as far back as the formation of the Delaware Court of Chancery in 1792 and, in recent years, businesses have associated the increasing complexity of litigation with the need for specialized business courts. Businesses report an increasing lack of predictability of outcome and time required to resolve matters, often due in part to increasing complexity of cases along with increasing time demands on judges. More recently, legislatures have increasingly turned to business courts for these complex business matters—now present in many states. Delaware remains the “‘godfather’ of business courts” with its Chancery Court, which developed as “the original” business court because corporate governance cases “generally raise the kinds of questions with which equity deals: the duty of disclosure, the duty of good faith, and the like.”5 But all business courts offer the distinct advantages of any specialized court:

(1) Certainty and predictability of outcome – judicial expertise gives business interests the security that their complex business issues will be heard in front of a judge who has substantial familiarity with complex business issues like fiduciary duties, disclosure issues, and duty of care.

(2) Because of the specialized nature of the courts and the lawyers who practice before it, complex issues can be expedited.

(3) Specialization, generally, leads to consistent case management and lower costs, with more efficient outcomes.

The creation of a statewide business court in Georgia would promote all these advantages and make Georgia a more attractive and competitive venue for business.

An Overview of Business Courts in Other Jurisdictions

The attached Survey of State Business Courts provides a non-exhaustive survey of subject matters that have been assigned to business courts in other states. Some states, such as New York, focus almost exclusively on commercial matters, for example, even taking jurisdiction over legal malpractice claims only insofar as they arise out of misrepresentation in commercial matters.6 Other states, like North Carolina, have sought to use the business court as a venue for developing expertise in other areas in addition to commercial and corporate law, like antitrust law and intellectual property disputes.7 South Carolina has also adopted a comprehensive statewide business court, recognizing the need for certainty for new business investment.8

5 Anne Tucker Nees, Making a Case for Business Courts: A Survey of and Proposed Framework to Evaluate Business Courts, 24 GA. ST. U. L. REV. 477, 480-81 (2007). 6 Appendix at ix-x. 7 Id. at iii-iv. 8 Id. at xi.


The Metro Atlanta Business Case Division

In its recommendation for a statewide business court, the Subcommittee also considered the success of the Fulton County Superior Court Business Case Division (now known as the Metro Atlanta Business Case Division). The Subcommittee reviewed documents and heard from a number of practitioners and judges familiar with the establishment and operation of the Business Case Division, which was authorized by the Supreme Court in 2005 pursuant to Atlanta Judicial Circuit Rule 1004.9 The Business Case Division was established as a “pilot program” under Article VI, SectionI, Paragraph X of the Georgia Constitution. Currently, the Fulton County Superior Court and the Gwinnett State and Superior Courts have adopted Rule 1004. Cases involving any of the following are eligible to be transferred to the Metro Atlanta Business Case Division: securities, the Uniform Commercial Code, the law governing corporations and other business organizations, and contract and business tort cases and other complex litigation in which the amount in controversy exceeds $1 million. Cases are assigned to the Business Case Division by either (a) joint request; (b) motion by a party; or (c) request by the assigned state or superior court judge. A committee of the Business Case Division determines whether a case should be transferred to the Division. The Division is partially funded through a $1,000 transfer fee.10 Since its inception, the Metro Atlanta Business Case Division has handled nearly 240 cases. The Division is known for its efficient disposition of matters and accessibility of its judges and staff. The Division utilizes case management conferences in the first 30 days after a case is assigned and promptly decides motions and discovery disputes.11 In 2015 and 2016, the average time for disposition of motions was 16 days.12 Cases assigned to the Business Case Division are also resolved between 50-60%faster than similar, complex cases on the regular docket. Moreover, surveys of practitioners in the Business Case Division reflect high levels of satisfaction by over 80% of those surveyed.13

9 Atl. Jud. Cir. R. 1004. 10 Id. 11 Metro Atl. Bus. Ct. Report, 4 (2016). 12 Id. at 6. 13 Rocco Testani, Testimony to Ga. Bus. Ct. Subcommittee, Nov. 1 2017.


STATEWIDE BUSINESS COURT SUBCOMMITTEE PROPOSING A STATEWIDE BUSINESS COURT IN GEORGIA Constitutional Considerations Article VI of the Georgia Constitution sets forth the classes and duties of Georgia’s various courts – magistrate courts, probate courts, juvenile courts, state courts, superior courts, Court of Appeals, and Supreme Court. Amending Article VI would therefore be required to formally establish a Business Court in the Georgia judiciary. Article VI, Section I, Paragraph X, however, also contains an “[a]uthorization for pilot projects” that grants the General Assembly the power to enact pilot projects of limited duration to establish different courts. It is possible that the Business Court could be enacted as a limited-duration pilot project pursuant to Article VI, Section I, Paragraph X. As a practical matter, the General Assembly’s pilot-project authority requires a two-thirds majority in each house, so a proper constitutional amendment would not require significantly more political effort and could provide more stability for the long-term success of the Business Court. The following paragraphs in Article VI will likely be affected and need to be amended to create constitutional authority for the proposed Business Court: Section I, Paragraph I – “Business Court” to be added to the list of “classes of courts.” Section I, Paragraph IV – “Business Court” could be added to the list of courts that may grant new trials, but even absent amendment, a newly created Business Court should be captured within the catch-all “other courts of record” language in that paragraph. Section I, Paragraph V – In order to provide time for legislation and rules to be enacted, add “The provisions of this Paragraph, as they relate to the Business Court, shall be effected by law within 24 months of the effective date of this Amendment.” Section II, New Paragraph IX – This section covers venue in Georgia. It should be amended to add a new paragraph covering the shifting venue proposal for the Business Court. E.g., “All cases properly before the Business Court may have all pre-trial proceedings in the County prescribed by legislation and rules relating to the Business Court. Trial in Business Court cases will be in the county otherwise required by this Section.” Section III, Paragraph I – Amend this section to add the Business Court to a class of court of limited jurisdiction. * The amendment could either note the Business Court’s jurisdiction will be established “as provided by law” to allow the General Assembly to create jurisdiction, or jurisdictional constraints could be set forth in a new detailed Paragraph II. * To the extent the proposal will be for Business Court decisions to be binding on other lower Georgia courts, the following paragraph would need to be added: “The decisions of the Business Court insofar as not in conflict with those of the Court of Appeals or Supreme Court shall bind all courts except the Court of Appeals and Supreme Court as precedents.”


* To the extent the proposal would reflect that the Business Court can certify questions to the Supreme Court, add a paragraph setting forth that authority: “The Business Court may certify a question to the Supreme Court for instruction, to which it shall then be bound.” Section VII, Paragraph I – Section VII will need to be amended to reflect the selection of Business Court judges (Paragraph I), the minimum qualifications for Business Court judges (Paragraph II), and if vacancies will be filled by some method other than appointment by the Governor, set forth that method (Paragraph III). Creation and Structure Recommendation- The Subcommittee recommends this Georgia Business Court (GBC) be established with statewide jurisdiction. Cases could be filed in the superior or state court of any judicial circuit but would be transferred and removed to the GBC discussed herein. Technology and videoconferencing may be used to facilitate remote participation for these matters to reduce travel costs. If, however, a case goes to a jury trial in the GBC, the venue would be subject to current constitutional requirements and the trial would be held in the filing location. Option 1: A business court with statewide jurisdiction based in Atlanta, similar to Georgia’s statewide appellate courts. Option 2: A business court with statewide jurisdiction based in various regions of the state, similar to Georgia’s federal courts. Analysis: The benefit of having a business court based in one location would likely limit the general expense of managing the court’s operations. Precedent exists for establishing a court of statewide jurisdiction in one central location. As noted above, video technology would be available for pre-trial matters to further limit expense, and any necessary jury trial would be held in the original filing location. The benefit of having the business court located in multiple regions across the state would be ease of access for parties located outside of the metro-Atlanta area, this model would closely resemble Georgia’s federal court model. Business court geographic organizational structures differ amongst other states. Florida, for example, has three business courts, each of which are located in different state trial court circuits.14 North Carolina, on the other hand, has four regional business court locations that have equal jurisdictional reach.15 Finally, states like Delaware have statewide jurisdiction in one central location, via the Delaware Court of Chancery.16 Transfer/Removal Recommendation: Litigants seeking to transfer or remove to the GBC would be subject to some temporal limit on when a removal petition could be filed. A party opposing transfer to the GBC may file a petition in opposition seeking to remand a case to the superior or state court in which it was filed. A GBC judge would rule on the issue of proper subject matter for removal/remand to/from the GBC. Options for Implementation: The Subcommittee considered several procedural options for transferring/removing a case to the GBC. First, litigants seeking to transfer or remove their case to the GBC could file a petition to do so with the GBC, notifying the superior or state court in which the case was filed. A

14 Appendix v-vi. 15 Id. iii-iv 16 Supra n. 1 at 479-82


party opposing removal would then be able to petition the GBC to remand the case. The Subcommittee also discussed at length the ability to partition trial when necessary. For instance, if an ancillary issue of fact arose that could be adjudicated fairly quickly by a state or superior court, perhaps the Court could send that single issue to trial with a judge in the original filing location. However, when the central or dispositive issue is due for trial, the GBC judge’s familiarity with the matter may make it necessary for that judge to preside over the case in the proper venue. Finally, an additional consideration is the remand of cases back to a state or superior court once issues necessitating the transfer of the case to the GBC are resolved. The Subcommittee found merit to the various options but has chosen to defer to the will of the General Assembly on these matters of implementation. Subject Matter Jurisdiction and Appeal Subject matter jurisdictional formats vary throughout the states. A common model, such as New York’s Commercial Division, requires a specific jurisdictional amount in controversy and provides a defined list of subject matter jurisdictional parameters.17 A defined, objective model such as this would provide for easier predictability but likely less flexibility to account for varying factual scenarios that may arise in the business context. Another format, the complex business model used by New Jersey, requires some form of business, technology, or commercial dispute while additionally requiring the satisfaction of “complexity” standards according to a list of factors that are decided by a judge.18 This format is more subjective, providing judges greater discretion in managing the dockets while possibly reducing predictability for litigants. The Subcommittee recommends a mixture of North Carolina’s and Georgia’s Fulton County business courts. North Carolina’s model combines the objectivity and predictability of a defined list of parameters with the subjectivity and flexibility in determining “complexity” standards.19 Additionally, the Subcommittee proposes an amount in controversy requirement as another jurisdictional gatekeeper for the GBC. Recommendation: The Business Court Subcommittee proposes limiting the subject matter jurisdiction of the GBC to the following topics:

• Actions brought pursuant to or governed by the Georgia Business Corporation Code, Uniform Partnership Act, Uniform Limited Partnership Act, Revised Uniform Limited Partnership Act, or Limited Liability Company Act;

• The Uniform Commercial Code; • Securities; • Antitrust; • Intellectual property; • Actions arising out of or rooted in E-commerce that meet an amount-in-controversy requirement; • Cybersecurity; • Biotechnology; • The Georgia International Arbitration Act; • Professional malpractice claims with a duty arising out of a business dispute that do not involve personal

injury, subject to an amount in controversy requirement; and, • Contract or business tort cases subject to an amount in controversy requirement.

17 Appendix at ix. 18 Appendix at ix. 19 Appendix iii-iv.


The Subcommittee proposes that decisions of the GBC would be appealable to the Georgia Court of Appeals, consistent with recent statutory changes to the jurisdiction of Georgia’s appellate courts. Options Regarding Amount in Controversy: The Subcommittee considered at length the need for an amount-in-controversy requirement for certain subject matters. In doing so, the Subcommittee reviewed various state business court amount-in-controversy requirements which ranged from as little as $15,000 to as high as $1 million. As such, the Subcommittee wishes to defer on selecting a specific amount but acknowledge the need of an amount-in-controversy for certain topics. Judicial Selection and Qualification Recommendation: Given the purpose of the Business Court—providing judicial resources tailored to the unique needs of complex litigation—the Subcommittee proposes that judges in the GBC be appointed, rather than elected, and have a demonstrable track record of experience in complex litigation practice. An ideal candidate would have at least 15 years of practice in business and/or other complex litigation. Given the experiential requirements of such judges, longer terms of office for the judges may also be necessary.


SOVEREIGN IMMUNITY

SUBCOMMITTEE


SOVEREIGN IMMUNITY SUBCOMMITTEE INTRODUCTION

Members of the Sovereign Immunity Subcommittee

Hon. Christopher M. Carr Attorney General of Georgia (Chair)

Hon. Trent Brown Judge, Superior Court of the Ocmulgee Judicial Circuit

Dennis T. Cathey, Esq. Member, Cathey & Strain, LLC

Hon. Christian Coomer Majority Whip, Georgia House of Representatives

Hon. Bill Cowsert Majority Leader, Georgia State Senate

Hon. Asha Jackson Judge, Superior Court of the Stone Mountain Judicial Circuit

Carey Miller Executive Counsel (Incoming), Office of Governor Nathan Deal Hon. Mary Margaret Oliver Georgia House of Representatives

David Werner Executive Counsel (Outgoing), Office of Governor Nathan Deal

The Sovereign Immunity Subcommittee was formed to examine the effect of the State’s sovereign immunity—a constitutional doctrine—on the availability of certain types of lawsuits in Georgia. Discussion of sovereign immunity has become increasingly prevalent in the wake of (among other things): (1) Georgia Department of Natural Resources v. Center for a Sustainable Coast, Inc., a Georgia Supreme Court case decided in 2014; (2) House Bill 59, legislation pertaining to sovereign immunity, passed in 2015 but vetoed in 2016 (2016 Ga. Laws 380A); and (3) Lathrop v. Deal, another sovereign immunity case pending before the Georgia Supreme Court in 2016 (before the creation of this Subcommittee) and decided in 2017.

The Subcommittee identified two primary goals for its work as part of the Council:

(1) Identify issues related to the State’s sovereign immunity that should be reviewed to “achieve best practices for the administration of justice” as set forth in the Governor’s Executive Order. A common theme discussed among Subcommittee members was that “the administration of justice” may be served by seeking clarity and certainty as it pertains to the scope of the State’s sovereign immunity, and as to the availability of certain types of legal remedies against the State.

(2) Offer the Governor a range of potential options for actions that he, the General Assembly, and/or the people of Georgia could undertake related to the State’s sovereign immunity.


SOVEREIGN IMMUNITY SUBCOMMITTEE

HISTORY OF SOVEREIGN IMMUNITY IN GEORGIA To better understand the context of the Subcommittee’s discussions, as well as its ultimate recommendations, some background on Georgia’s sovereign immunity doctrine is necessary.

The doctrine of sovereign immunity traditionally embodies the proposition that the State “[can]not, without its own express consent, be subjected to an action of any kind.”20 Although sovereign immunity is commonly understood to protect primarily the “public purse,” the doctrine at common law also barred suits against the State that did not seek money damages, such as those for injunctive or other equitable relief.21

Sovereign immunity existed as a common-law doctrine in Georgia for almost 200 years—from 1784 until 1974. In 1974, the people of Georgia ratified an amendment to their Constitution, elevating sovereign immunity from a common-law doctrine to a constitutional doctrine.22 That amendment “provided that sovereign immunity was expressly reserved and could only be waived by our Constitution or legislature,” and because of it, “the courts no longer had the authority to abrogate or modify the doctrine, as they had when sovereign immunity was a product of the common law rather than constitutional law.”23

When the 1983 Georgia Constitution was later ratified, the provision on sovereign immunity was revised so that “the State had the power to waive sovereign immunity for damages claims for which liability insurance existed, up to the extent of any insurance coverage.”24 This represented a shift from the 1974 amendment, which expressly reserved waiver of sovereign immunity to the legislature.25

20 Lathrop v. Deal, 301 Ga. 408, 412 (2017) (quoting Peeples v. Byrd, 98 Ga. 688, 693-94 (1896)). 21 See Lathrop, 301 Ga. at 412-13. 22 See Ga. Dep’t of Nat. Res. v. Ctr. for a Sustainable Coast, Inc., 294 Ga. 593, 597 (2014). 23 Id. 24 Id. at 598. 25 See id.


SOVEREIGN IMMUNITY SUBCOMMITTEE 1991 CONSTITUTIONAL AMENDMENT In 1991, a new sovereign immunity amendment was ratified, thus amending the 1983 Constitution.

The 1991 Amendment did four main things: it (1) enabled the General Assembly to pass a waiver of the State’s sovereign immunity through a state Tort Claims Act (Art. I, Sec. II, Para. IX(a)); (2) waived the State’s sovereign immunity for suits against the State for breach of written contract (Art. I, Sec. II, Para. IX(c)); (3) constitutionalized the traditional common-law doctrine of official immunity (Art. I, Sec. II, Para. IX(d)); and (4) revised the constitutional doctrine of state sovereign immunity (Art. I, Sec. II, Para. IX(e)).26

Article I, Section II, Paragraph IX(e) sets the parameters of the State’s sovereign immunity:

(e) Except as specifically provided in this Paragraph, sovereign immunity extends to the state and all of its departments and agencies. The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.

Thus, the 1991 Amendment—the most recent constitutional treatment of sovereign immunity—“restored to the legislature the exclusive power to waive sovereign immunity.”27

26 See 1983 GA. CONST. Art. I, Sec. II, Para. IX(a)-(e) (amended 1991). 27 Sustainable Coast, 294 Ga. at 598.


SOVEREIGN IMMUNITY SUBCOMMITTEE SUSTAINABLE COAST AND OTHER RECENT DECISIONS

In 2014, the Georgia Supreme Court decided Sustainable Coast. The Court held that “the plain language of Paragraph IX(e) explicitly bars suits against the State or its officers and employees sued in their official capacities, until and unless sovereign immunity has been waived by the General Assembly,” and that “exceptions” to sovereign immunity were not permitted—even for “suits seeking injunctive relief to restrain an illegal act.”28

Cases following Sustainable Coast further established the contours of the State’s sovereign immunity under Paragraph IX(e). For example, in Olvera v. University System of Georgia’s Board of Regents (2016), the Georgia Supreme Court held that sovereign immunity bars suits for declaratory relief against the State or its departments or agencies.29 And in TDGA, LLC v. CBIRA, LLC (2016), the Court “concluded that sovereign immunity extends as well to conventional quiet title actions.”30

Although the Georgia Supreme Court decided cases examining the effect of sovereign immunity on suits for declaratory and injunctive relief against the State for alleged statutory and common-law violations, it did not have “occasion to consider whether the doctrine of sovereign immunity extends to claims for injunctive or declaratory relief that rest upon constitutional grounds.”31

28 Id. at 599 (overruling Int’l Bus. Machines Corp. v. Evans, 265 Ga. 215, 216 (1995)). 29 Olvera v. Univ. Sys. of Ga.’s Bd. of Regents, 298 Ga. 425, 428 n.4 (2016). 30 See Lathrop, 301 Ga. at 425 n.19 (citing TDGA, LLC v. CBIRA, LLC, 298 Ga. 510, 511-12 (2016)). The Court held, however, that “in rem actions for quiet title . . . are not barred by sovereign immunity.” TDGA, 298 Ga. at 510.

It is also worth noting that during the 2015-2016 legislative sessions, the General Assembly passed House Bill 59, a legislative waiver to the State’s sovereign immunity for a number of types of suits, including but not limited to suits for injunctive and declaratory relief. See http://www.legis.ga.gov/legislation/en-US/Display/20152016/HB/59.

Governor Deal vetoed H.B. 59 on May 3, 2016, noting that “HB 59 creates a blanket waiver of sovereign immunity, with limited exceptions, as to claims seeking a declaratory judgment or injunctive relief against the state and local governments” and that “the waiver of sovereign immunity contained [in HB 59] is not sufficiently limited.” See https://gov.georgia.gov/press-releases/2016-05-03/deal-issues-2016-veto-statements. 31 Lathrop, 301 Ga. at 408-09 (emphasis added).


SOVEREIGN IMMUNITY SUBCOMMITTEE LATHROP V. DEAL

In early 2017, the Georgia Supreme Court was “confronted squarely with that question” in Lathrop v. Deal.32 In that case, three physicians sued State officials for declaratory and injunctive relief, alleging that House Bill 954—which “concerns medical procedures for the termination of pregnancies”—violated their patients’ rights under the Georgia Constitution.33

Faced with the question of whether sovereign immunity, as set forth in Paragraph IX(e) of the Georgia Constitution, prohibited a suit for injunctive or declaratory relief premised on alleged constitutional violations, the Court held that “the doctrine of sovereign immunity extends generally to suits against the State, its departments and agencies, and its officers in their official capacities for injunctive and declaratory relief from official acts that are alleged to be unconstitutional.”34

The Court thus confirmed that sovereign immunity in Georgia is a constitutional doctrine that generally bars suits against the State—even for alleged constitutional violations—absent an express waiver by the General Assembly.

Importantly, however, the Lathrop Court “recognize[d] the availability of other means by which aggrieved citizens may obtain relief from unconstitutional acts, including prospective relief from the threatened enforcement of unconstitutional laws.”35 The Court emphasized that immunity would generally bar “retrospective relief—monetary damages and other relief for wrongs already done and injuries already sustained”—against state officers and employees in their individual capacities.36 But the Court noted that plaintiffs may be able to obtain relief by suing state officers “in their individual capacities” because the doctrine of official immunity37 (as opposed to sovereign immunity) “generally is no bar to claims against state officers in their individual capacities for injunctive and declaratory relief from the enforcement of laws that are alleged to be unconstitutional, so long as the injunctive and declaratory relief is only prospective in nature.”38

Lathrop v. Deal, which was decided while this Subcommittee was already engaged in its work for the Court Reform Council, confirmed the breadth and strength of the State’s sovereign immunity under the 1991 Amendment. But it also left open a potential avenue for litigants to seek prospective declaratory or injunctive relief from the enforcement of allegedly unconstitutional laws—so long as the litigants sought relief against

32 Id. at 408-09. 33 Id. at 409; see O.C.G.A. § 31-9B-2. 34 Lathrop, 301 Ga. at 409 (emphasis added) 35 Id. 36 Id. at 434. 37 In Georgia, official immunity, like sovereign immunity, is a constitutional doctrine. However, official immunity—unlike sovereign immunity—applies to state officers and employees individually, and not to state departments and agencies. Official immunity is set forth in Article I, Section II, Paragraph IX(d) of the 1983 Constitution (amended 1991):

“(d) Except as specifically provided by the General Assembly in a State Tort Claims Act, all officers and employees of the state or its departments and agencies may be subject to suit and may be liable for injuries and damages caused by the negligent performance of, or negligent failure to perform, their ministerial functions and may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions. Except as provided in this subparagraph, officers and employees of the state or its departments and agencies shall not be subject to suit or liability, and no judgment shall be entered against them, for the performance or nonperformance of their official functions. The provisions of this subparagraph shall not be waived.”

38 Lathrop, 301 Ga. at 434-35 (emphasis added).


state officers and employees in their individual capacities and not in their official capacities.39 Even so, questions remain about the availability, practicality, and viability of the type of individual suits described in Lathrop, and whether immunities (such as sovereign or official) could still bar such actions.40

39 Suits against State officers or employees in their official capacities are treated as suits against the State and are therefore barred by sovereign immunity. See id. at 424 (“In Sustainable Coast, we reaffirmed that the doctrine of sovereign immunity bars suits against the State, its departments and agencies, and its officers in their official capacities for injunctive relief.”). 40 For example, the Court “recognize[d] the availability of other means by which aggrieved citizens may obtain relief”—but if such relief is not, in fact, available, it is not clear how aggrieved citizens could obtain relief from “the threatened enforcement of unconstitutional laws.” See Lathrop, 301 Ga. at 409 (emphasis added).


SOVEREIGN IMMUNITY SUBCOMMITTEE POTENTIAL PATHS FORWARD The Subcommittee offers the following potential paths forward for Governor Deal’s consideration.

• Constitutional Amendment

• Legislation

• A Combination Approach

• No Action

Constitutional Amendment

To the extent there is a desire to modify Georgia’s constitutional doctrine of sovereign immunity, one obvious path would be modifying the Georgia Constitution—and in particular, the 1991 Amendment pertaining to sovereign immunity.41 Although amending the Constitution is a direct means of addressing sovereign immunity, it is not the most efficient.

First, the Subcommittee did not identify a desire to re-work the 1991 Amendment, and many members acknowledged that changing even a few words or phrases in the Amendment could have far-reaching and unforeseen consequences.

Second, achieving consensus on a proposed Amendment—let alone securing ratification of the Amendment42 —would be a complex and difficult endeavor.

For those reasons, the Subcommittee acknowledges that changes may be made to Georgia’s sovereign immunity doctrine via constitutional amendment, but does not view that option as preferred.

Legislation

Another way to modify the State’s sovereign immunity is by legislation. That is because the Georgia Constitution gives the General Assembly the power to waive “[t]he sovereign immunity of the state and its departments and agencies” by legislation, so long as the “Act of the General Assembly . . . specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” GA. CONST. Art. I, Sec. II, Para. IX(e). Addressing the State’s sovereign immunity through legislation is the option that garnered the most interest and support from the diverse stakeholders represented on the Subcommittee. 41 As the Georgia Supreme Court has repeatedly acknowledged, the two ways to effectuate a waiver of the State’s sovereign immunity are by legislative waiver or by the text of the Georgia Constitution itself waiving the State’s sovereign immunity. See, e.g., id. at 444 (“The constitutional doctrine of sovereign immunity bars any suit against the State to which it has not given its consent . . . If the consent of the State is to be found, it must be found in the constitution itself or the statutory law.”). 42 There are two ways to propose an amendment to the Georgia Constitution: (1) through a proposal submitted by the General Assembly or (2) by a constitutional convention. See GA. CONST. Art. X, Sec. I, Para. I.

For the General Assembly to propose an amendment, the proposal must originate as a resolution by either the House or Senate, and two-thirds of each chamber must approve the proposal. GA. CONST. Art. X, Sec. I, Para. II. To amend the Constitution via a Constitutional Convention, two-thirds of the House and two-thirds of the Senate must call for a convention. GA. CONST. Art. X, Sec. I, Para. IV. At the convention, the representatives vote on whether to propose the amendment to the people of Georgia. Id.

If the proposed amendment passes through either method, then the State must hold a popular vote on the proposed amendment. See GA. CONST. Art. X, Sec. I, Para. II. A proposed amendment becomes ratified if it receives a majority vote. Id.


Why a Legislative Solution?

Unlike the constitutional amendment option, passing legislation does not require ratification. Equally important, the framers of the Georgia Constitution (and the drafters of the 1991 Amendment) expressly contemplated legislative waiver and Paragraph IX(e) permits the General Assembly to waive the State’s sovereign immunity.

What Would a Legislative Solution Accomplish?

The Subcommittee spent time exploring, and expressed enthusiasm for, a potential legislative option that addresses an issue left open in Lathrop: the viability of suits against state officers or employees in their individual (as opposed to official) capacities for injunctive and declaratory relief from the enforcement of allegedly unconstitutional laws.43

Given the Lathrop Court’s affirmation of the strength of the State’s sovereign immunity, and in light of the questions remaining in the wake of that decision, the Subcommittee focused attention on the possibility of passing a narrow and limited waiver of the State’s sovereign immunity pursuant to Article I, Section II, Paragraph IX(e) of the Constitution. That limited waiver would in effect “replace” the possibility of individual suits against state officers and employees for the purpose of seeking to enjoin enforcement of allegedly unconstitutional laws in the future, or for seeking prospective declaratory relief as to such laws.

Why Replace Individual Capacity Suits With A Narrow Waiver of State Sovereign Immunity?

The Subcommittee identified a number of reasons why it would be preferable to be able to sue the State (as opposed to state officers or employees in their individual capacities) to obtain “prospective relief from the threatened enforcement of unconstitutional laws.”44 The reasons include:

• Unwillingness to subject state officers and employees to suits individually for the enforcement of allegedly unconstitutional laws, because state officers and employees have no authority to enforce laws apart from their employment with the State.

• Concern that officers and employees subjected to individual-capacity suits—even if only for prospective injunctive and declaratory relief—could suffer personal consequences, including financial ramifications.

• Concern that subjecting officers and employees to individual-capacity suits could deter otherwise qualified and interested Georgians from entering public service.

• Concern that individual-capacity suits are less convenient for plaintiffs than a suit against the State, given (for example) personnel changes that may occur in a given office over time, and that such suits may not “run” to an officer’s or employee’s successor.45

43 There is also some question about whether these types of individual-capacity suits could, in some circumstances, be barred by state sovereign immunity. To that end, the Lathrop court noted that “the doctrine of sovereign immunity at common law was broad enough to bar some suits against public officers in their individual capacities, although only to the extent that the State itself could be said to be the real party in interest.” Lathrop, 301 Ga. At 413-14. 44 Id. at 409. 45 See, e.g., id. at 444 n.32 (acknowledging plaintiffs’ concerns about individual-capacity suits against state officers and employees).


How Would A Legislative Solution Work?

1. Pass a narrow legislative waiver of the State’s sovereign immunity that mirrors the type of suit contemplated against individual state officers and employees in Lathrop.

The proposed waiver would not create a private right of action, but would simply make clear that the State’s sovereign immunity does not bar suits against the State for prospective injunctive or declaratory relief to prevent enforcement of allegedly unconstitutional laws.

To ensure that the proposed waiver does not abrogate any of the other protections outlined in the Georgia Constitution, we recommend framing the legislative waiver in the negative (for example: “Sovereign immunity shall not bar….”). We also recommend that the legislative waiver explicitly state that waiver of the State’s sovereign immunity in this narrow context does not extend to (and thus sovereign immunity would still bar) any actions against the State for monetary relief and actions against the State seeking relief for past alleged wrongs. It should also include caveat language that makes clear that the waiver does not create a new private right of action or disturb any other prerequisites to or limitations on relief, including but not limited to jurisdictional requirements, standing, statutory notice to the Attorney General, exhaustion of administrative remedies in the APA and elsewhere, and existence of adequate remedies at law.

Although such a waiver would be narrow in scope, its passage would meaningfully change the status quo by permitting certain suits for injunctive and declaratory relief against the State that are otherwise barred under the constitutional doctrine of sovereign immunity. Most importantly, it would provide procedural certainty for citizens seeking injunctive or declaratory relief with respect to an allegedly unconstitutional law.

2. Concurrently pass legislation prohibiting suits against state officers or employees in their individual capacities for “official acts that are alleged to be unconstitutional . . . including prospective relief from the threatened enforcement of unconstitutional laws.”46

This aspect of a potential legislative solution would help to ensure that state officers and employees not be sued in their individual capacities for the type of suit that the proposed legislative waiver would permit against the State. Passing a narrow legislative waiver for certain types of suits against the State would not serve its full purpose (as outlined above) if the General Assembly did not prevent the same type of suits against individual state officers and employees.

The Georgia Tort Claims Act—itself a legislative waiver of the State’s sovereign immunity—provides helpful language as an example. See O.C.G.A. § 50-21-25(b) (“A person bringing an action against the state under the provisions of this article must name as a party defendant only the state government entity for which the state officer or employee was acting and shall not name the state officer or employee individually.”). Similar language could be used as part of this proposed legislative package.

3. As part of the same legislation, include substitution of a State department or agency for officers and employees sued in their individual capacities.

The Subcommittee also recommends that any proposed legislation include a substitution provision that, by operation of law, substitutes the relevant state entity as the defendant if a plaintiff names as a defendant a state officer or employee in his or her individual capacity (notwithstanding the legislative direction against suing state officers or employees for these types of cases). The Georgia Tort Claims Act is also a helpful example on this point. It states: “In the event that the state officer or employee is individually named for an act or omission

46 See, e.g., id. at 409.


for which the state is liable under this article, the state government entity for which the state officer or employee was acting must be substituted as the party defendant.” O.C.G.A. § 50-21-25(b). Passing similar language would ensure that any legislative waiver permitting certain types of suits against the State would in fact result in suits against the State and not against individual officers and employees.

4. Ensure that the legislation contains other key features.

Any proposed legislation should ensure that persons or entities seeking to avail themselves of the proposed waiver of the State’s sovereign immunity otherwise have legal standing to file suit against the State. In other words, the passage of a narrow waiver of the State’s sovereign immunity does not—and should not be construed to—confer legal standing on a party if that party has not suffered a cognizable injury or otherwise met the requirements for legal standing under applicable state and federal law.

The Subcommittee also discussed and favored including a jurisdictional ante litem notice (or a notice of intent to sue)—which requires a plaintiff to notify the State of its intent to sue before filing an action—similar to the one contained in the Georgia Tort Claims Act. Requiring such a notice would create a uniform process for filing this type of suit against the State, thus standardizing the process for plaintiffs and ensuring that the State is placed on notice of forthcoming suits. It could also give the State an opportunity to resolve claims prior to suit.

Finally, other considerations should be made if proposed legislation is drafted. For example, the Subcommittee recommends:

• Ensuring that any waiver of the State’s sovereign immunity for injunctive relief regarding allegedly unconstitutional statutes does not expand other waivers.

• Encouraging the General Assembly to include express statutory language to make clear its intent to waive the State’s sovereign immunity in any intended legislative waiver, and by contrast to include statutory language in other statutes disclaiming its intent to waive the State’s sovereign immunity when that is the General Assembly’s intent. This could be helpful for any later judicial review.

• Ensuring that any legislation considers the effect of—and aims to prevent—claim-splitting without application of preclusive effects.

• Clarify that any waiver affects only the State’s sovereign immunity in Georgia courts and does not waive any immunity with respect to actions brought in courts of the United States.

The Subcommittee also recognizes that, as with any proposed path forward, there are potential drawbacks to a legislative solution as well. For example, the Department of Administrative Services (DOAS) does not insure the defense of cases for declaratory or injunctive relief against the State. Thus, cost of defense should be considered as it pertains to any waiver of the State’s sovereign immunity for injunctive or declaratory relief. Similarly, we recommend considering whether suits for prospective declaratory or injunctive relief for which the State waives sovereign immunity should be eligible for awards of attorneys’ fees or other costs against the State.


Combination Approach

The options set forth in this report do not need to be considered or implemented in isolation. To that end, another approach to addressing state sovereign immunity would be to adopt some combination of the options explored in this report.

No Action

The Subcommittee discussed whether to include “no action” as a potential path forward. Taking no action is a more viable path because the Lathrop decision has provided more clarity about the scope of the State’s sovereign immunity, but as explained above, uncertainties remain about the availability of other types of suits in the wake of that decision. Although no Subcommittee members endorsed “no action” as a preferred recommendation, many members agreed that the Subcommittee should acknowledge that taking no action is one viable option among many. For that reason, a “no action” option is included here.


SOVEREIGN IMMUNITY SUBCOMMITTEE OTHER POTENTIAL ISSUES AND ACTIONS Conventional Quiet Title Actions

One member of the public who attended a Subcommittee meeting explained that sovereign immunity bars conventional quiet title actions for tax deeds under O.C.G.A. § 23-3-44, whereas “quiet title against the world” generally is not barred by sovereign immunity.47 Because “quiet title against the world” is a more complicated and expensive legal process that is not always necessary for conventional actions, a request was made to consider passing a legislative waiver of the State’s sovereign immunity within O.C.G.A. § 23-3-44 (“Removing cloud on title caused by equity of redemption following tax sale”).

Sovereign Immunity for Municipalities

The Subcommittee also discussed whether political subdivisions of the State—such as counties or municipalities—enjoy the same sovereign immunity as the State when sued for declaratory or injunctive relief.48 To that end, the Subcommittee discussed whether any legislative proposal should expressly delineate which political subdivisions of the State were included in any waiver of immunity.

The Subcommittee ultimately acknowledged, however, that the sovereign immunity enjoyed by counties and municipalities is derived from different portions of the Georgia Constitution and Georgia Code. The Georgia Constitution treats counties as a part of the State; counties are therefore protected by sovereign immunity.49 By contrast, municipalities receive immunity only as provided for by the General Assembly.50

Given these potential differences, the Subcommittee concluded that the best course for any proposed legislative waiver would be to refer only to the State, and not to delineate other political subdivisions. At the same time, the Subcommittee recommends considering the potential effect of a legislative waiver on counties and municipalities, and further considering whether those effects may warrant additional legislative action now or in the future.

Conduct vs. Acts

In explaining that constitutional official immunity may not bar certain types of claims against state officers or employees in their individual capacities, the Georgia Supreme Court in Lathrop explained that “official immunity generally is no bar to claims against state officers in their individual capacities for injunctive and declaratory relief from the enforcement of laws that are alleged to be unconstitutional, so long as the injunctive and declaratory relief is only prospective in nature.”51

There was some discussion among Subcommittee members about whether any proposed legislative waiver of the State’s sovereign immunity should extend beyond prospective injunctive and declaratory relief pertaining to allegedly unconstitutional laws to also waive sovereign immunity with respect to claims alleging

47 See, e.g., TDGA, LLC v. CBIRA, LLC, 298 Ga. 510, 510 (2016). 48 An example is whether counties or cities may validly assert sovereign immunity if a citizen sues for prospective injunctive or declaratory relief for an allegedly unconstitutional law or ordinance. 49 See GA. CONST. Art. I, Sec. II, Para. IX(e); Columbus Consol. Gov’t v. Woody, 342 Ga. App. 233, 233 (2017) (“Sovereign immunity extends to the county and can only be waived by a legislative act of the General Assembly specifically providing for the waiver and its extent.”). 50 See GA. CONST. Art. IX, Sec. II, Para. IX; see, e.g., O.C.G.A. § 36-33-1. 51 Lathrop, 301 Ga. at 434-35 (emphasis added).


unconstitutional conduct (beyond the enforcement of allegedly unconstitutional laws). The Subcommittee agreed that although this question may be worthy of examination in the future, it is not central to the legislative option proposed in this Report. Indeed, there was some concern that extending a proposed waiver of the State’s sovereign immunity beyond the narrow context discussed here could result in the same overbreadth issue that may have led to the demise of H.B. 59. See 2016 Veto Statement, supra n. 30 (“[T]he waiver of sovereign immunity contained therein is not sufficiently limited”).

Executive Orders and Other Actions Not Covered By O.C.G.A. § 50-13-10

Also raised was whether the General Assembly should consider passing a legislative waiver of the State’s sovereign immunity to permit suits challenging the constitutionality of Executive actions and orders. Although this suggestion falls outside the scope of the Lathrop paradigm—insofar as it extends beyond challenges to laws—it aligns with the idea that citizens may want additional and viable legal avenues to challenge the constitutionality of government acts and actions. In considering this possibility, we recommend evaluating the need (if any) for legislative waivers to Executive actions and orders not already covered by O.C.G.A. § 50-13-10(a), which allows for declaratory judgments pertaining to the “validity of any rule, waiver, or variance” in certain contexts. Additionally, the key aspects and limitations mentioned above in Subsection 4 should also be considered.

17 LC 43 0646

H. B. 571- 1 -

House Bill 571

By: Representatives Watson of the 172nd, Maxwell of the 17th, Battles of the 15th, Greene of

the 151st, and Corbett of the 174th

A BILL TO BE ENTITLED

AN ACT

To amend Chapter 25 of Title 47 of the Official Code of Georgia Annotated, relating to the1

Magistrates Retirement Fund, so as to provide that a member in arrears for dues payments2

for a period of 90 days shall be suspended from the fund and must apply for reinstatement;3

to provide for elections for designated survivor's benefits; to provide that certain retired4

members may become employed in a certain position and continue to receive benefits; to5

provide for related matters; to provide conditions for an effective date and automatic repeal;6

to repeal conflicting laws; and for other purposes.7

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:8

SECTION 1.9

Chapter 25 of Title 47 of the Official Code of Georgia Annotated, relating to the Magistrates10

Retirement Fund, is amended in Article 3, relating to membership, by adding a new Code11

section to read as follows:12

"47-25-43.13

(a) A member who is in arrears for the dues payment required by Code Section 47-25-4114

for a period of 90 days shall become a suspended member on the ninetieth day of such15

arrearage.16

(b) A suspended member may apply for reinstatement as an active member only during17

the 30 day period beginning with his or her next full term of office, and such member shall18

not receive service credit for the period of time during which he or she was a suspended19

member."20

SECTION 2.21

Said chapter is further amended in Article 5, relating to benefits, by adding a new Code22

section to read as follows:23

17 LC 43 0646

H. B. 571- 2 -

"47-25-82.1.24

(a) In lieu of receiving the retirement benefits provided for in Code Sections 47-25-81 and25

47-25-82, upon application for retirement, a member may elect in writing on a form to be26

prescribed by the board to receive:27

(1) A 100 percent joint life annuity payable during the lives of a member and his or her28

designated survivor; or29

(2) A joint and survivor annuity that shall provide for 50 percent of the monthly30

retirement benefit amount that is paid to the member to be paid to his or her designated31

survivor following such member's death.32

(b) The amount of the retirement benefit payable under this Code section shall be:33

(1) Based on the member's age upon retirement;34

(2) Based on the age of the member's designated survivor upon the member's retirement;35

and36

(3) Computed so as to be actuarially equivalent to the total retirement benefit amount37

which would have been paid to the member under Code Sections 47-25-81 and 47-25-82.38

Such actuarial equivalent shall be computed on actuarial tables to be adopted by the39

board.40

(c)(1) A designated survivor shall be a person with whom the member has a familial41

relationship through blood, marriage, or adoption.42

(2) If a member is married at the time of such election, his or her spouse shall be the43

designated survivor unless another person is so designated with the written agreement of44

such spouse.45

(d) If a member makes an election provided in subsection (a) of this Code section in his46

or her application for retirement, after approval of the application for retirement, the47

following provisions shall apply:48

(1)(A) If a member's designated survivor predeceases such member, he or she may, in49

writing on forms prescribed by the board and subject to approval by the board, revoke50

such election and thereafter receive during the member's lifetime a monthly retirement51

benefit commencing on the date the board approves such revocation, but not for any52

period prior to such approval.53

(B) Such monthly retirement benefit amount shall be equal to the maximum monthly54

benefit which would have been payable to such member had he or she not made such55

election.56

(2)(A) If there is entered a final judgment of divorce between a member and a57

designated survivor, such member may, in writing on forms prescribed by the board and58

subject to approval by the board, revoke such election and thereafter receive during the59

17 LC 43 0646

H. B. 571- 3 -

member's lifetime a monthly retirement benefit commencing on the date the board60

approves such revocation, but not for any period prior to such approval.61

(B) Such monthly retirement benefit amount shall be equal to the maximum monthly62

benefit which would have been payable to such member had he or she not made such63

election."64

SECTION 3.65

Said chapter is further amended in Article 5, relating to benefits, by revising Code Section66

47-25-86, relating to suspension of benefits if retired member becomes employed as full-time67

or part-time magistrate, as follows:68

"47-25-86.69

(a) If a retired member becomes employed as a full-time or part-time magistrate or chief70

magistrate, his or her retirement benefits shall be suspended during the period of time he71

or she holds such position, and upon cessation of such service, his or her prior retirement72

allowance shall be resumed.73

(b) If a retired member becomes employed as a chief magistrate, he or she may elect again74

to become a contributing member of the retirement system and be governed by the75

retirement provisions of this chapter."76

SECTION 4.77

This Act shall become effective on July 1, 2018, only if it is determined to have been78

concurrently funded as provided in Chapter 20 of Title 47 of the Official Code of Georgia79

Annotated, the "Public Retirement Systems Standards Law"; otherwise, this Act shall not80

become effective and shall be automatically repealed in its entirety on July 1, 2018, as81

required by subsection (a) of Code Section 47-20-50.82

SECTION 5.83

All laws and parts of laws in conflict with this Act are repealed. 84

DRAFT LC 29 7649

A BILL TO BE ENTITLED

AN ACT

1 To amend Code Section 19-6-15 of the Official Code of Georgia Annotated, relating to child

2 support in final verdict or decree, guidelines for determining amount of award, continuation

3 of duty to provide support, and duration of support, so as to clarify and revise a definition;

4 to clarify the process of calculating child support when there is more than one child for

5 whom support is being determined; to provide for related matters; to provide an effective

6 date; to repeal conflicting laws; and for other purposes.

7 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

8 SECTION 1.

9 Code Section 19-6-15 of the Official Code of Georgia Annotated, relating to child support

10 in final verdict or decree, guidelines for determining amount of award, continuation of duty

11 to provide support, and duration of support, is amended by revising paragraph (11) of

12 subsection (a) as follows:

13 "(11) 'Final child support order amount' means the presumptive amount of child support

14 adjusted by any deviations."

15 SECTION 2.

16 Said Code section is further amended by revising paragraphs (9) and (11) of subsection (b)

17 as follows:

18 "(9) Any benefits which the child receives under Title II of the federal Social Security

19 Act shall be applied against the final child support order amount. The final child support

20 amount for each parent shall be entered on the child support worksheet, together with the

21 information from each of the utilized schedules;"

22 "(11) In a split parenting case, there shall be a separate calculation and final child support

23 order for each parent; and"

- 1 -

Proposal - Child Support Commission

DRAFT LC 29 7649

24 SECTION 3.

25 Said Code section is further amended by revising paragraph (12) of subsection (b) as follows:

26 "(12) When there is more than one child for whom support is being determined, the court

27 shall establish the amount of support and the duration of such support in accordance with

28 subsection (e) of this Code section. When, within two years of a final order being

29 entered, there is a likelihood that a child will become ineligible to receive support, the

30 court may allow for the use of separate worksheets. Separate worksheets shall be utilized

31 for such determination and show the full amount of support to be paid for all such

32 children and the adjusted amount of support to be paid as each child becomes ineligible

33 to receive support during such two-year period. Such worksheets shall be attached to the

34 final child support order. Such order shall specify the date upon which the changed

35 support payments shall begin. Such order shall contain findings as required by law. A

36 final order entered pursuant to this paragraph shall not preclude a petition for

37 modification."

38 SECTION 4.

39 Said Code section is further amended by revising paragraph (3) of subsection (f) and

40 subparagraph (f)(4)(B) as follows:

41 "(3) Social Security benefits.

42 (A) Benefits received under Title II of the federal Social Security Act by a child on the

43 obligor's account shall be counted as child support payments and shall be applied

44 against the final child support order amount to be paid by the obligor for the child.

45 (B) After calculating the obligor's monthly gross income, including the countable

46 social security benefits as specified in division (1)(A)(xiii) of this subsection, and after

47 calculating the amount of child support, if the presumptive amount of child support, as

48 increased or decreased by deviations, is greater than the social security benefits paid on

49 behalf of the child on the obligor's account, the obligor shall be required to pay the

50 amount exceeding the social security benefit as part of the final child support order in

51 the case.

52 (C) After calculating the obligor's monthly gross income, including the countable

53 social security benefits as specified in division (1)(A)(xiii) of this subsection, and after

54 calculating the amount of child support, if the presumptive amount of child support, as

55 increased or decreased by deviations, is equal to or less than the social security benefits

56 paid to the nonparent custodian or custodial parent on behalf of the child on the

57 obligor's account, the child support responsibility of that parent shall have been met and

58 no further child support shall be paid.

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DRAFT LC 29 7649

59 (D) Any benefit amounts under Title II of the federal Social Security Act as determined

60 by the Social Security Administration sent to the nonparent custodian or custodial

61 parent by the Social Security Administration for the child's benefit which are greater

62 than the final child support order amount shall be retained by the nonparent custodian

63 or custodial parent for the child's benefit and shall not be used as a reason for

64 decreasing the final child support order amount or reducing arrearages."

65 "(B) Modification. When cases with established orders are reviewed for modification

66 and a parent fails to produce reliable evidence of income, such as tax returns for prior

67 years, check stubs, or other information for determining current ability to pay child

68 support or ability to pay child support in prior years, and the court or jury has no other

69 reliable evidence of such parent's income or income potential, the court or jury may

70 increase the child support of the parent failing or refusing to produce evidence of

71 income by an increment of at least 10 percent per year of such parent's gross income

72 for each year since the final child support order was entered or last modified and shall

73 calculate the basic child support obligation using the increased amount as such parent's

74 gross income."

75 SECTION 5.

76 Said Code section is further amended by revising the introductory language of subsection (h),

77 subparagraph (h)(1)(F), subdivision (h)(2)(B)(iii), and paragraph (3) of subsection (h) as

78 follows:

79 "(h) Adjusted support obligation. The child support obligation table does not include the

80 cost of the parent's work related child care costs, health insurance premiums, or uninsured

81 health care expenses. The additional expenses for the child's health insurance premiums

82 and work related child care costs shall be included in the calculations to determine child

83 support. A nonparent custodian's expenses for work related child care costs and health

84 insurance premiums shall be taken into account when establishing a final child support

85 order."

86 "(F)(i) The total amount of work related child care costs shall be divided between the

87 parents pro rata to determine the presumptive amount of child support and shall be

88 included in the worksheet and the final child support order.

89 (ii) In situations in which work related child care costs may be variable, the court or

90 jury may, in its discretion, remove work related child care costs from the calculation

91 of support, and divide the work related child care costs pro rata, to be paid within a

92 time specified in the final child support order. If a parent or nonparent custodian fails

93 to comply with the final child support order:

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DRAFT LC 29 7649

94 (I) The other parent or nonparent custodian may enforce payment of the work

95 related child care costs by any means permitted by law; or

96 (II) Child support services shall pursue enforcement when such unpaid costs have

97 been reduced to a judgment in a sum certain."

98 "(iii) Eligibility for or enrollment of the child in Medicaid or the PeachCare for Kids

99 Program shall not satisfy the requirement that the final child support order provide for

100 the child's health care needs. Health coverage through the PeachCare for Kids

101 Program and or Medicaid shall not prevent a court from ordering either or both

102 parents to obtain other health insurance.

103 (3) Uninsured health care expenses.

104 (A) The child's uninsured health care expenses shall be the financial responsibility of

105 both parents. The final child support order shall include provisions for payment of the

106 uninsured health care expenses; provided, however, that the uninsured health care

107 expenses shall not be used for the purpose of calculating the amount of child support.

108 The parents shall divide the uninsured health care expenses pro rata, unless otherwise

109 specifically ordered by the court.

110 (B) If a parent fails to pay his or her pro rata share of the child's uninsured health care

111 expenses, as specified in the final child support order, within a reasonable time after

112 receipt of evidence documenting the uninsured portion of the expense:

113 (i) The other parent or the nonparent custodian may enforce payment of the expense

114 by any means permitted by law; or

115 (ii) Child support services shall pursue enforcement of payment of such unpaid

116 expenses only if the unpaid expenses have been reduced to a judgment in a sum

117 certain amount."

118 SECTION 6.

119 Said Code section is further amended by revising subparagraphs (i)(1)(D) and (i)(2)(J) as

120 follows:

121 "(D) If the circumstances which supported the deviation cease to exist, the final child

122 support order may be modified as set forth in subsection (k) of this Code section to

123 eliminate the deviation."

124 "(J) Extraordinary expenses. The child support obligation table includes average

125 child rearing expenditures for families given the parents' combined adjusted income and

126 number of children. Extraordinary expenses are in excess of average amounts

127 estimated in the child support obligation table and are highly variable among families.

128 Extraordinary expenses shall be considered on a case-by-case basis in the calculation

129 of support and may form the basis for deviation from the presumptive amount of child

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DRAFT LC 29 7649

130 support so that the actual amount of the such expense is considered in the calculation

131 of the final child support order for only those families actually incurring the expense.

132 Extraordinary expenses shall be prorated between the parents by assigning or deducting

133 credit for actual payments for extraordinary expenses."

134 SECTION 7.

135 This Act shall become effective upon its approval by the Governor or upon its becoming law

136 without such approval.

137 SECTION 8.

138 All laws and parts of laws in conflict with this Act are repealed.

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Judicial Workload Assessment Committee Filing of post-judgment actions (O.C.G.A. § 15-6-77 & 15-6-61) - Proposal

O.C.G.A. § 15-6-77

e) Costs in civil cases:

• (1) As used in this subsection, the term "civil cases" shall include all actions, cases, proceedings, motions, or filings civil in nature, including but not limited to actions for divorce, domestic relations actions, modifications on closed civil cases, adoptions, condemnation actions, and actions for the validation and confirmation of revenue bonds. Any postjudgment proceeding filed more than 30 days after judgment or dismissal in an action shall be considered as a new case for the purposes of this Code section and shall be given a new case number by the clerk of superior court.

• (2) Except as provided in paragraphs (3) and (4) of this subsection, the total sum for all services rendered by the clerk of the superior court through entry of judgment in civil cases shall be $58.00. Such sum shall not be required if the party desiring to file such case or proceeding is unable, because of indigence, to pay such sum and such party files with the clerk an affidavit to such effect, as provided by law. Nothing contained in this subsection shall be deemed to require advance payment of such sum by the state, its agencies, or political subdivisions.

• (3) In all cases involving condemnations or the validation and confirmation of revenue bonds, the following additional sums shall be charged at the conclusion of the action:

o (A) Validation and confirmation of revenue bonds pursuant to Code Section 36-82-79, first 500 bonds, each................$ 1.00

All bonds over 500, each................................… .50 (B) Recording on final record, per page. .................. 1.50

O.C.G.A. § 15-6-61

§ 15-6-61. Duties of clerks generally; computerized record-keeping system • (a) It is the duty of a clerk of superior court:

o (1) To keep the clerk's office and all things belonging thereto at the county site and at the courthouse or at such other place or places as authorized by law;

o (2) To attend to the needs of the court through the performance of the duties of the clerk required and enumerated by law, or as defined in court order, or rules;

o (3) To issue and sign every summons, writ, execution, process, order, or other paper under authority of the court and attach seals thereto when necessary. The clerk shall be authorized to issue and sign under authority of

the court any order to show cause in any pending litigation and any other order in the nature of a rule nisi, where no injunctive or extraordinary relief is granted;

o (4) To keep in the clerk's office the following: ▪ (A) An automated civil case management system which shall contain

separate case number entries for all civil actions filed in the office of the clerk, including complaints, proceedings, Uniform Interstate Family Support Act actions, domestic relations, contempt actions, motions and modifications on closed civil actions, any postjudgment proceeding filed more than 30 days after judgment or dismissal in an action, and all other actions civil in nature except adoptions;

▪ (B) An automated criminal case management system which shall contain a summary record of all criminal indictments in which true bills are rendered and all criminal accusations filed in the office of clerk of superior court. The criminal case management system shall contain entries of other matters of a criminal nature filed with the clerk, including quasi-civil proceedings and entries of cases which are ordered dead docketed at the discretion of the presiding judge and which shall be called only at the judge's pleasure. When a case is thus dead docketed, all witnesses who may have been subpoenaed therein shall be released from further attendance until resubpoenaed; and

▪ (C) A docket, file, series of files, book or series of books, microfilm records, or electronic data base for recording all deeds, liens, executions, lis pendens, maps and plats, and all other documents concerning or evidencing title to real or personal property. When any other law of this state refers to a general execution docket, lis pendens docket, or attachment docket, such other law shall be deemed to refer to the docket or other record or records provided for in this subparagraph, regardless of the format used to store such docket;

— A Bench Card for Judges —

Judicial Council of Georgia • Standing Committee on Legislation

November 1, 2017

FELONY PROBATION:Georgia and U.S. Constitutional Law

This bench card is designed to provide judges with guidance on the relevant legal principles regarding felony probation. It focuses in particular on how to address the situation of indigent defendants and probationers and contains information about recent changes to Georgia law and S.B. 174 (2017) such as the new Behavioral Incentive Date and the new provisions on early termination for proba-tioners under sentence for a qualified offense.

KEY CONSIDERATIONS

SETTING FINES AND FEES IN FELONY PROBATION CASES

CONSTITUTIONAL REQUIREMENTS BEFOREIMPOSING OR REVOKING PROBATION

• Before being placed on probation, a defendant is entitled to the assistance of counsel absent a proper waiver. Alabama v. Shelton, 535 U.S. 654, 658 (2002).

• When revoking probation, a court must find that the pro-bationer has willfully violated probation conditions. Failure to comply is not willful if the probationer lacks notice of a con-dition. Douglas v. Buder, 412 U.S. 430, 432 (1973) (per curiam).

• Failure to comply is not willful if the probationer lacks the ability to comply. Bearden v. Georgia, 461 U.S. 660, 672-73 (1983). A probationer may not be imprisoned for failing to pay fines, fees, or restitution if the court has not inquired into the reasons for failure to pay. If the failure to pay is not willful, the court must consider alternate measures of punishment other than imprisonment. Id.

• In revocation proceedings, the probationer must be informed of the right to request counsel. Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973). If counsel is denied, the reasons must be stated in the record. Id.

• There is no categorical Sixth Amendment right to appoint-ment of counsel in probation revocation proceedings, only a more limited due process right, determined on a case-by-case basis where fundamental fairness requires it. Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973).

• In determining whether due process demands the appoint-ment of counsel, the court should consider whether “the pro-bationer makes such a request based on a timely and colorable claim (i) that he has not committed the alleged violation of

the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the rea-sons are complex or otherwise difficult to develop or present.” The court “also should consider, especially in doubtful cases, whether the probationer appears to be capable of speaking effectively for himself.” Gagnon v. Scarpelli, 411 U.S. 778, 790- 791 (1973).

GEORGIA LAW REGARDING INDIGENT DEFENDANTS AND DEFENDANTS WITH A “SIGNIFICANT FINANCIAL HARDSHIP”

• Prior to or subsequent to sentencing, if the defendant is un-able to pay or demonstrates a significant financial hardship, the court must:

o Waive the fine, surcharges, or fees;o Reduce the fine, surcharges, or fees to an amount that the

defendant can pay; and/oro Convert the fine, surcharges, or fees to community service.

O.C.G.A. § 42-8-34(e)(3)(B).

• Notably, Georgia law now defines significant financial hard-ship as occurring where there is a reasonable probability that the defendant will be unable to satisfy his or her financial obligations for two or more consecutive months. O.C.G.A. § 42-8-34(e)(3)(iii). A significant financial hardship is presumed where the defendant:

o Has a developmental disability under O.C.G.A. § 37-1-1;o Is totally and permanently disabled under

O.C.G.A. § 49-4-80;o Earns less than 100% of the Federal Poverty Guidelines;o Has been released from confinement within the past 12

months and was incarcerated for more than 30 days before release.

SETTING FINES, FEES, AND RESTITUTION O.C.G.A. §§ 17-14-10(a), 17-14-7, 42-8-34(e)(1)

If fines, restitution, or probation supervision fees are imposed, the amount should be adjusted to the defendant’s circumstances, including:• The defendant’s financial resources and income;• The defendant’s financial obligations and dependents;• The length of the defendant’s probation sentence;• The goals of deterrence, retribution, and rehabilitation;• Any other factor the court deems appropriate to consider. If restitution is imposed, the court must consider, in addition to the above factors, the amount of damages and any restitution previously made. If the amount of restitution is contested, the

court must hold a hearing at which the burden is on the State to establish the amount of the victim’s loss, and the burden is on the defendant to establish hardships justifying a reduction in the restitution amount.

CONVERTING FINES & FEES TO COMMUNITY SERVICEO.C.G.A. §§ 17-10-1(d), 42-8-34(e)(2)

The court may convert fines, surcharges, or probation supervi-sion fees to community service. The number of service hours is determined by dividing the fine, surcharges, or fees by an appropriate hourly wage set by the court, which may be higher than minimum wage.

FELONY PROBATION, BEHAVIORAL INCENTIVE DATE* O.C.G.A. § 17-1-7(a)(1)(B)

A behavioral incentive date (BID) is required for all newly sentenced felony probationers who are sentenced to a straight probated sentence and who have no prior felony convictions.• BID must not exceed three years from the date the sentence is imposed.• The Department of Community Supervision (DCS) shall provide the court with an order to terminate supervision within 60 days of the BID if the following conditions are met:

o No arrests for anything other than non-serious traffic offenses;

o The probationer has been compliant with all of his or her probation conditions; and

o Has paid all restitution owed.

• If the above conditions are met the court may execute the order if the court feels it would be in the best interests of justice and the welfare of society to do so. • The prosecuting attorney may request a hearing within 30 days of the order being issued. • This provision does not apply to probationers on a split sentence.• A successfully completed first offender act sentence, O.C.G.A. § 42-8-60, or conditional discharge sentence, O.C.G.A. § 16-13-2 does not count as a prior felony conviction.

PROBATION OFFICER REPORTS AND PETITIONS FOR EARLY TERMINATION FOR PROBATIONERS WHO HAVE BEEN COMPLIANT FOR THREE (3) YEARS*

O.C.G.A. § 42-8-37(c)(1-3)Probation officers must issue a report on probationers who have been sentenced to three or more years of probation. The report shall state whether the probationer has had any new arrests for anything other than a non-serious traffic of-fense, has been compliant with all of his or her probation con-ditions, and the status of the probationer’s payments towards restitution, fines, and fees.

These reports shall be issued after three years of probation, and then annually thereafter. Each report shall be submit-ted to the sentencing court along with the probation officer’s recommendation as to whether early termination of probation is appropriate.

For probationers on probation for a qualified offense, DCS shall file a petition to terminate probation if, after serving three years on probation, the probationer has:• No new arrests for anything other than a non-serious traffic offense;• Paid all restitution owed; and • Has not had his or her probation revoked during this period.When presented with this petition, the court shall take what-ever action it determines would be for the best interest of justice and the welfare of society.

This procedure is intended to be retroactive and applied to any probationer under the supervision of DCS.

PROBATION AND PAROLE CONDITIONS* O.C.G.A. § 42-9-42(D)(1)

Any person who is paroled shall be released on such terms and conditions as the board shall prescribe, and if he or she is serving a split sentence, the board’s conditions shall include all of the terms of probation imposed by the sentencing court.

PAROLE COMMUTATION* O.C.G.A. § 42-9-52When a parolee or conditional releasee is serving a split sentence for a qualified offense, the board shall review such case after such parolee or conditional release has successfully completed 12 consecutive months of parole supervision to

consider commutation of such sentence. If commuted, this would put the supervision of the offender under the court’s control sooner.

QUALIFIED OFFENSES• Burglary in the second degree• Possession of tools for the commission of crime;• Criminal damage to property in the second degree• Interference with government property;• Arson in the third degree;• Burning of woodlands, brush, fields, or other lands in violation of O.C.G.A. § 16-7-63 when the punishment is as set forth in paragraph (2) of subsection (c) of Code Section 16-7-63(c)(2);• Theft and financial transaction card offenses under $25,000;• Theft by shoplifting• Refund fraud;

• Conversion of payments for real property improvements;• Entering an automobile or other motor vehicle with intent to commit theft or felony;• Livestock theft;• Forgery;• Printing, executing, or negotiating checks, drafts, orders, or debit card sales drafts knowing information thereon to be in error, fictitious, or assigned to another account;• Failing to pay for natural products or chattels;• Purchasing, possessing, manufacturing, delivering, distributing, administering,

selling, or possessing with the intent to dis-tribute controlled substances, marijuana, counterfeit substances, or flunitrazepam;• Unlawfully manufacturing, delivering, distributing, selling, or possessing with the intent to distribute noncontrolled substances;• Possession of substances containing ephedrine or pseudoephedrine or sales of products containing those ingredients in violation of O.C.G.A. § 16-13-30.3(b)(3);• Violation of Article 3 of Chapter 13 of Title 16 when the punishment is as set O.C.G.A. § 16-13-79(b).

*Indicates laws passed in 2017 as part of the Criminal Justice Reform Council’s Legislative Package

244 Washington Street SW • Suite 300 • Atlanta, GA 30334

404-656-5171 • www.georgiacourts.gov

Judicial Council of Georgia Administrative Office of the Courts

Chief Justice P. Harris Hines Cynthia H. Clanton Chair Director

Memorandum

TO: Chief Justice P. Harris Hines, Chair, Judicial Council of Georgia

Presiding Justice Harold D. Melton, Vice-Chair, Judicial Council of Georgia

Justice Michael P. Boggs, Chair, Criminal Justice Reform Council of Georgia

Members of the Judicial Council of Georgia

Members of the Criminal Justice Reform Council of Georgia

FROM: Judge Wayne Purdom, Chair, Ad Hoc Committee on Misdemeanor Bail Reform

CC: Cynthia H. Clanton, Director, Judicial Council/Administrative Office of the

Courts

RE: Initial Misdemeanor Bail Reform Findings and Recommendations

DATE: 11/7/2017

The Judicial Council’s Ad Hoc Committee on Misdemeanor Bail Reform is pleased to present its

initial findings and recommendations on misdemeanor bail reform. Contained in our proposal

are several measures designed to reduce the number of arrestees held in jails on misdemeanor

charges simply because of an inability to pay.

Several of the recommendations may require legislative action, but others are best enacted

through changes to court rules. After receiving feedback on these initial findings and

recommendations, the committee will meet to further refine its drafts of possible statutory and

rule changes in support of its recommendations.

The committee will deliver a verbal report to the Criminal Justice Reform Council on November

8th and to the Judicial Council on December 8th. The committee will then deliver a final report

prior to the committee’s sunset date of January 31st, 2018.

Please note that this report does not reflect an official position of the Judicial Council at this

time.

http://www.georgiacourts.gov/



Judicial Council

Ad Hoc Committee on Misdemeanor Bail Reform

Initial Findings and Recommendations1

Ability-to-Pay Determination

Recommendation: Make explicit the requirement to consider financial circumstances of defendant in setting bail.

Recommendation: Provide for an expedited financial ability-to-pay determination for purposes of bail only.

Discussion: When a defendant is arrested upon a warrant and a monetary surety,

property, or cash bond is required, an inquiry as to the person’s financial ability to post

the required bond should be made within 24 hours of arrest. In cases in which a

warrantless arrest is made a financial inquiry should be made within 48 hours of arrest or

24 hours of issuance of a post-arrest warrant, a written order determining probable cause,

or other charging document, whichever time is less. Most courts use a post-arrest warrant

to reflect the finding of probable cause of a specific offense that is required to be

determined within 48 hours under. The court could authorize a court-annexed

administrative review, such as through pre-trial services, to undertake such review.

Consideration of financial ability to post a monetary bond should not be limited to

situations where the defendant meets a general indigency standard; the standard would be

the ability to promptly meet the financial bond requirements of the initial bond set by the

court. This determination would not be controlling on a latter finding of indigency.

In the event that a jurisdiction opts to expedite the first appearance timeline, a court

would have the option to combine proceedings, such as the conduct of the first

appearance hearing, the determination of indigency for provision of counsel. The

committee will also recommend to the appropriate Uniform Rules committees that the

topics covered in the first appearance hearing should include a review of the financial

capacity of the Defendant to post any existing bond if the Defendant has not previously

been heard on that issue.

1 This report does not reflect an official position of the Judicial Council at this time. The next meeting of the Judicial

Council will be held on December 8th, 2017




Citations in Lieu of Arrest

Recommendation: Increase the use of citations issued by police officers. State, Magistrate, Probate and Municipal courts should all have the same citation authority.

Discussion: Many low-level misdemeanor offenses may not necessitate the setting of a

monetary bail. It is suggested that the certain offenses are released initially without

monetary condition other than an unsecured bond: municipal, county, and state authority

ordinances, offenses without incarceration as a penalty, offenses which may be

prosecuted with a citation in magistrate court (deposit account fraud, etc.). There are

slight variants in the citation authority of magistrate, probate and municipal courts. To

avoid confusion in the field, it would be preferable if the citation authority was the same.

Recommendation: Create statutory authorization for a singular Uniform Misdemeanor Complaint & Summons form through the Uniform Rule process with limited conditions to be authorized as conditions of release.

Discussion: In order to minimize the need for bail, more charges could be citations

instead of arrests. The first step is to authorize citations authorized for one class of court

to be permitted in other classes of court with concurrent jurisdiction. In particular, in

some jurisdictions, solicitor-generals prefer to prosecute citation-possible cases in state

court with other misdemeanors.

The committee recommends the establishment a set of offenses for which defendants are

to be released on non-monetary bonds (not secured or cash). For citations, at least those

issued by police officers, State, Magistrate, Probate and Municipal courts should all have

the same citation authority and all should exclude domestic violence criminal trespass as

defined by O.C.G.A. § 19-13-1 from being eligible for citation in lieu of arrest. Any

arrestees processed on these offenses or any municipal ordinance for which an arrest is

authorized would be released on non-monetary bail.

New Jersey conditions associated with summons would be model – things like do not

return to scene of alleged offense [e.g. store with shoplifting], no contact with victims

named in the citation without further order of court, etc. In light of court tendency for

excessive conditions, these conditions would need to be carefully limited. A uniform

citation or summons form may be adopted for such prosecutions by uniform rule pursuant

to Article 6, Section 9, Paragraph 1 of the Georgia Constitution.




Alternatives to Monetary Bond

Recommendation: Providing for certain arrestees to be released on an initial non-monetary bail (those arrested for a citationable offense, any municipal ordinance or any offense for which no jail time is permitted).

Discussion: The Committee recommends greater opportunities for non-monetary release

on low-level offenses. For example, in the event that law enforcement arrests an

individual on an offense that otherwise would be a citation as well as any municipal

ordinance violations or any offense for which no jail time is permitted by statute, the

court should release such individuals on a non-monetary bond.

In dealing with repeat offenders, it is presumed that should the defendant re-offend while

the existing charges are pending the proper remedy is to revoke the initial bond in

accordance with the procedure outlined in Hood v. Carstens, 267 Ga. 579 (1997).

Pursuant to O.C.G.A. § 17-6-13, only the initial bond is a matter of right and second or

subsequent bond could be revoked if another offense occurs while the defendant is

released subject to a hearing on the revocation of the bond. The right to revoke the initial

bond upon the commission of a subsequent penal offense could be spelled out in

legislation if necessary.

Recommendation: Permit local courts the option to authorize unsecured bonds on bail schedules for other misdemeanors.

Discussion: Local courts should have the option to authorize unsecured bonds on bail

schedules for other misdemeanors.

While a judge reviewing a case on an individual basis should have a broad authority to

release on an unsecured bond, certain misdemeanors are inappropriate to release on an

unsecured bond with no review of the circumstances of the particular case by a judge.

The Committee recommends that the following offenses be restricted from release on an

unsecured bond through a bail schedule: offenses involving an act of domestic violence,

any offense excluded from release upon citation under Code Section 40-13-53(b), or

violations of Code Sections 16-10-24 (obstruction), 52-7-12 (boating under the

influence).

Recommendation: Allow for greater use of posting driver’s license as collateral.

Discussion: Current law permits the sheriff to allow a person to post their driver’s

license as collateral for bail only after being detained for five days and only for amounts

up to $1,000. Allowing the use of a driver’s license as collateral earlier and for a greater

amount adds another resource for release.




Recommendation: Require that bonding agents accept bonds (below $2,500) regardless of amount.

Discussion: Professional bondsmen often decline bonds below $1,000. For many

defendants, pretrial release or detention will depend on whether a commercial surety

posts their bond. Some bail bond agents will not post bail for defendants with low money

bail amounts because it is less lucrative for the bail bond company than posting bail for

defendants with high cash bonds. The effect of those incentives may be that defendants

with lower bond amounts – typically defendants a court perceives to present lower

pretrial risk – remain detained because they cannot pay a cash bond and commercial

sureties do not view them as worthwhile clients.

Individualizing Bail Determinations

Recommendation: Allow for the setting of bond by any of judge of a court of inquiry.

Discussion: While any court of inquiry should have the ability to set bond per two

attorney general opinions which the committee feels are correct (see Atty. Gen. Op.

U88-14; U97-19), in practice the reality is that many magistrate courts do not feel they

have the authority to issue bonds on municipal cases or the municipal judges feel that

they do not.

Recommendation: Allow for the release of individuals with bail restricted offenses by any judge of a court of inquiry.

Discussion: Current law only allows elected judges to release individuals with bail

restricted offenses. Appointed judges and those sitting by designation are not currently

authorized.

Recommendation: Create a statutory presumption of release on the least restrictive conditions for misdemeanors (with certain limitations).

Discussion: At the heart of the bail reform is the concept of the intended use of bail.

Generally, bail is for two purposes – to ensure the defendant’s return to court and to

prevent any additional crimes pending the disposition of their case. Statutory language

supports that a misdemeanor defendant is entitled to an initial bond. In the caselaw there

is some support for the proposition that a monetary bond the defendant cannot post is

excessive bail. In practice, the working presumption in many courts is that absent a

special showing a defendant is only released if he can post a “standard bond.” A statutory

presumption of release further clarifies the current paradigm with respect to

misdemeanors by assuming that pretrial release is the desired outcome with pretrial




detention only being necessary if the court determines that the defendant is unlikely to

return to court or that public safety or the administration of justice is threatened.

Recommendation: Eliminate a bail schedule for family violence offenses.

Discussion: Elimination of use of a bail schedule for acts of family violence would

require case-by-case review of such offenses to ensure greater safety of the alleged

victim. In all family violence cases as defined by O.C.G.A. § 19-13-1, including family

violence criminal trespass, bond would be set on a case-by- case basis under the

standards set forth in O.C.G.A. § 17-6-1(f)(3), and the “judge shall give particular

consideration to the exigencies of the case at hand and shall impose any specific

conditions as he or she may deem necessary.”

Effective Pretrial Release

Recommendation: (Re)Establish statutory authority for pretrial release programs.

Discussion: Currently, state law only specifically authorizes pretrial release programs

when electronic monitors are used. Uniform Superior Court Rule 27 permits the creation

of pretrial programs. Additional authority may be needed to establish these programs

locally and allow for cities or counties to contract for such services.

Recommendation: Authorize and provide funding for pilot programs for release by risk assessment.

Discussion: Funding is needed for pilot programs for risk assessment and pre-trial

services in at least 3 counties of different size and demographics starting with a risk

assessment measure previously validated in another state. Private grant funds are also

likely to be available for such programs. Include legislative authorization for regulation

of rules for the program and validation of instrument(s) under some form of Supreme

Court supervision or approval.

Use of a risk assessment tool requires oversight to provide standards for validation (an

adequate statistical showing that it accomplishes what it purports to do specific to the

Georgia environment); further, that it is race neutral or closer to race neutral than existing

practices. Finally, the process of validation and monitoring needs to be transparent to

protect public confidence in the system. From testimony before the committee, it appears

that the largest project of pretrial risk assessment in Georgia uses a unique instrument that

has not been validated, although the program apparently wishes to switch to an

instrument that has been validated in another state.

It is the committee’s recommendation that a body or process to fulfill these goals be

authorized to be created under the authority of the Supreme Court. There has been




controversy in the past over the permissible scope of the Uniform Rule authority (see

Russell v. Russell, 257 Ga. 177, 356 S.E.2d 884 (1987); Edwards v. State, 281 Ga. 108,

111, 636 S.E.2d 508, 510 (2006)), in the absence of legislative authorization. The exact

process or body should be developed after consultation with the Supreme Court. The

Pretrial Justice Institute and stakeholders may provide some guidance on governance and

parameters of such pilot projects.

Recommendation: Develop a statewide judicial inquiry system.

Discussion: Efforts such as risk assessment are predicated on access to not only accurate

criminal history but also certain court information. Development of a statewide judicial

inquiry system is therefore a necessity. Such information could be used to automate a

risk assessment tool. Funding is needed to support the creation of this tool.

Recommendation: Establish a uniform definition of failure to appear and a specific procedure for notation and correction in criminal histories.

Discussion: The use of “failure to appear” is a key factor in pretrial risk assessments,

whether it is considered case by case or in a formal evidence-based risk assessment

scoring. Information from other states as well as the experience of judges on this

committee suggests that records on failure to appear notations are problematic. It is

necessary to create an appropriate data definition for failure to appear notations on

criminal records. Notation in the criminal record should be restricted to instances of “no

shows” in which an appearance in a court proceeding in front of a judge was required

and, ultimately, which is not corrected by the trial court based on any later showing of the

reason for non-appearance. There should be an ability for the court to direct the removal

of the failure to appear notation upon finding that there was providential cause and then

forward a correction withdrawing the reported failure to appear without time limitation.

Further, the court should have the discretion to make a finding of non-wilfulness on an

FTA to be part of the defendant’s criminal record where it determines that the failure to

appear was due to excusable neglect or was not willful, and the defendant voluntarily

appears before the court within 180 days of the missed court appearance. Particularly if

the courts may rely on such data in the future for formal pretrial risk assessment scoring,

better quality assurance of this data is needed. Existing validated risk assessments only

exclude FTAs due to providential cause (like being in jail somewhere else). That

information needs to be retained as a separate available data point.




Recommendation: Promote greater use of court appearance notifications through the use of electronic reminders and plain language notices.

Discussion: Many of the instances of failure to appear are likely due to individuals

forgetting their court date. Funding is needed to allow local jurisdictions to implement

and evaluate the use of electronic court reminders. The Administrative Office of the

Courts should develop statewide contract rates and terms for such notices that local

courts could utilize. Studies show that Failure to Appear, or FTA, rates can be decreased

substantially by reminder notices and pretrial incarceration after missing a court date is a

burden on local governments as well as causing the same harm as other pretrial

incarceration. In particular, there is a Georgia study that shows that adoption of citations

without arrest alone increases FTA, but together with a court reminder a better FTA rate

than arrest with no reminder can be obtained.

The use of plain language in notices has been proven to be more effective than

complicated legalese. Similarly, such notices should also plainly describe the

consequences of failing to appear for court.

Recommendation: Request for courts to be exempt from “opt in” requirement for text messages.

Discussion: Recommend a request to the FTC or Georgia representatives in Congress that

court approved electronic notices, texts and email, (including by court contracted private

vendors) for court appearances and jury service be exempted by FTC from opt-in

requirement and financial penalties in a manner similar to medical appointments. Compare

47 CFR 64.1200(a)(2) … “other than a call made with the prior express written consent of

the called party or the prior express consent of the called party when the call is made by or

on behalf of a tax-exempt nonprofit organization, or a call that delivers a "health care"

message made by, or on behalf of, a ‘covered entity’ or its ‘business associate,’ . . .

.”[emphasis added]. Courts themselves are probably exempt from these provisions, since

they are not commercial entities, but electronic notices are most economically conveyed by

private vendors who are commercial entities who consider themselves subject to opt-in

regulations and liable for penalties for non-compliance.

Best Practices

Recommendation: Update Uniform Superior Court Rules on pretrial release to allow for additional local options.

Discussion: As an alternative to cash bail based and based on efforts in Kentucky,

individuals may be given bail credit for each day incarcerated that can be used to reduce a

set bail amount. Such effort would allow for $X/day credit up to maximum of $. A

suggested cap is 15 days and $1,500. A court could have to also develop list of “bail

credit eligible” charges. Require any pre-trial programs to also note possible substance




abuse and/or mental health to screen for possible referral to local accountability court

programs.

Alternately, bail schedules could vary in other ways based on the length of incarceration.

E.g., certain provisions could kick in automatically after 24 hours.

Recommendation: Establish a statewide repository of bond schedules.

Discussion: In an effort to be transparent and to minimize wide variation of bail amounts

throughout the state a central repository of bond schedules should be developed. The

committee suggests revising uniform rules to require filing a copy of all bond schedules

from around the state with the Supreme Court.

Recommendation: Institute a system of data collection and reporting to determine the effectiveness of the pretrial detention practices.

Discussion: With misdemeanor prosecutions largely funded on a local level in 159

counties, widespread use of risk assessment, even as a voluntary input used by judges,

cannot be widespread without automation of the process and access to data. Manually

creating a risk assessment score from raw GCIC reports is very labor intensive. Data

gathered from around the state should be used to better inform policymakers and judges

on the use of bail and pretrial detention. Data collection should include:

Failure to Appear rates for misdemeanant defendants awaiting arraignment

Number/rate of misdemeanor bond forfeitures (i.e., for FTAs)

Recidivism rates for misdemeanant defendants awaiting disposition

Local jail data analysis of misdemeanant defendants in jail who cannot make bond (how

long and the bond amounts)

Criminal database reforms should consider how data elements may need to be used in

automated programs calculating risk assessment scores.

Recommendation: Develop a bench card for judges that outlines alternatives to monetary bail.

Discussion: This bench card should describe the alternatives to cash bail including, but

not limited to: allowing the posting of one’s driver license as collateral, posting of surety

bonds (cash, property, etc.), own recognizance bonds, electronic monitoring, and pretrial

release and supervision.

Recommendation: Encourage the use of best practices for pretrial release.

Discussion: Best practices for pretrial release and supervision programs include: o Use of evidence-based supervision practices

o Use of validated pre-trial risk assessment




o Notice to defendant of court date at release

o Follow-up notice of court dates (phone, text, letter, etc.)

o Use of plain language in notices when possible, including a clear warning of

consequences for non-appearance

o Sharing of data/information on programs

o Establishment of training and protocols

o Tracking of key benchmarks

o Expedited review of initial bond/financial decision

o Earlier access to indigent defense

Another best practice is a timely review of the first initial evidentiary financial review of

the appropriate constraints on monetary bonds by the anticipated trial court or a judge of

another court specifically designated by the trial court. For instance, if the case was

expected to be tried in the superior court, the superior court might wish to designate a

particular magistrate to conduct a second financial review with appointed counsel

available.

Recommendation: Promote judicial education on any adopted reforms and national research on pretrial incarceration effects.

Discussion: Efforts should be made to provide educational outreach to judges and court

staff throughout the state on bail and pretrial release efforts.






Memorandum

TO: Judicial Council of Georgia

FROM: Chief Judge W. Allen Wigington, Chair

RE: Strategic Plan Standing Committee Report

DATE: November 28, 2017

The Strategic Plan Standing Committee met on November 8, 2017 for a working session.

The Committee received updates on Strategic Plan key initiatives 3, 4, 5, 6, and 9.

The Committee discussed the progress of the formation of the Sub-Committee on Emergency

Preparedness and Continuity of Judicial Operations. A copy of the recent order establishing the

Sub-Committee is attached.

As part of key initiative 3 (Encourage ongoing use of CourTools measures to promote access and

fairness in the courts), surveys have been distributed to nearly 400 individuals who participated in

the prior statewide Access and Fairness survey to determine what changes courts have implemented

since the survey. Another survey has been distributed to individuals who previously took CourTools

trainings to determine if, as a result of the trainings, those courts have implemented CourTools

measures. The survey will help determine if future trainings should be conducted or if another

approach to increasing awareness of CourTools is needed. A summary of the survey results is

expected in January 2018.

The Committee was presented with the recommendations on best practices in training and education

for trial court judges from the Judicial Council Standing Committee on Education and Training as

part of key initiative 6 (Promote effective multi-disciplinary judicial education practices across

multiple councils and groups). The Committee suggested one revision to the recommendations

relating to juvenile court judge training.

The next scheduled meeting of the Committee is January 23, 2018 at the State Bar of Georgia. A

summary of the status of all key initiatives is attached.

Attachments






Judicial Council Strategic Plan Standing Committee

Sub-Committee on Emergency Preparedness and Continuity of Judicial Operations

As part of the ongoing work of the Judicial Council Strategic Plan Standing Committee, I hereby

establish the Sub-Committee on Emergency Preparedness and Continuity of Judicial Operations

to update the Judicial Council Emergency Operations Plan previously created in 2005.

The following members are hereby appointed to the Sub-Committee:

Judge Sara Doyle, Court of Appeals of Georgia, Chair

Justice Keith Blackwell, Supreme Court of Georgia

Judge Samuel Ozburn, Alcovy Judicial Circuit

Judge Tadia Whitner, Gwinnett County Juvenile Court

Judge Eric Brewton, Cobb County State Court

Chief Judge Melanie Bell, Newton County Probate Court

Judge Greg Douds, Cherokee County Magistrate Court

Judge LaTisha Dear Jackson, Stone Mountain Municipal Court

Michael Terry, State Bar of Georgia

Sub-Committee members who are not members of the Strategic Plan Standing Committee will

serve as advisory members of the Strategic Plan Standing Committee. Advisory members may be

heard but shall not be entitled to vote.

The Sub-Committee on Emergency Preparedness and Continuity of Judicial Operations will exist

from the date of this order until March 31, 2019.

So decided this 27th day of November, 2017.

____________________________________________

Chief Judge W. Allen Wigington, Magistrate Court of Pickens County

Chair, Strategic Plan Standing Committee






Judicial Council Strategic Plan Standing Committee

Strategic Plan Update

Last updated November 28, 2017

Initiative Update

Initiative 1 -

Promote public

accessibility

and

transparency in

the courts

Meetings, events, and classes are being livestreamed and recorded as

available.

A panel on public accessibility and transparency in the courts took place on

August 9, 2017.

(https://livestream.com/accounts/15641258/events/7642160/videos/1610521

46)

The inaugural Judge Lovett and Chief Justice Hines Awards for Excellence

in Juvenile Justice and Child Advocacy were livestreamed.

(https://twitter.com/J4C_law/status/873261799763824640 and

https://livestream.com/accounts/7043450)

Initiative 2 -

Promote the

use of

technology as

an effective

communication

tool

Statewide content is being posted on a regular basis on Facebook and

twitter. The Georgia Courts Journal is now available electronically. Below

are some examples of content:

A second Twitter Town Hall has been conducted with two appellate judges

leading the discussion along with other Georgia judges as part of Law Day.

(https://storify.com/ashleystollar/askgajudges-lawday-edition)

The Republic of Georgia on-going teaching and learning exchange with four

Georgia Judges is highlighted in the Georgia Courts Journal.

(http://journal.georgiacourts.gov/article/judges-state-georgia-visit-republic-

georgia)

Initiative 3 -

Encourage

ongoing use of

CourTools

measures to

promote access

Surveys have been distributed to nearly 400 individuals who participated in

a prior statewide Access and Fairness survey to determine what changes

courts have implemented.

Surveys have also been distributed to individuals who previously took

CourTools trainings to determine if, as a result of the trainings, those courts

have implemented CourTools measures. The survey will help determine if


https://livestream.com/accounts/15641258/events/7642160/videos/161052146

https://livestream.com/accounts/15641258/events/7642160/videos/161052146

https://twitter.com/J4C_law/status/873261799763824640

https://livestream.com/accounts/7043450

https://storify.com/ashleystollar/askgajudges-lawday-edition

http://journal.georgiacourts.gov/article/judges-state-georgia-visit-republic-georgia

http://journal.georgiacourts.gov/article/judges-state-georgia-visit-republic-georgia



and fairness in

the courts

future trainings should be conducted or if another approach to increasing

awareness of CourTools is needed.

A summary of the survey results is expected in January 2018.

Initiative 4 -

Encourage

Legislative

branch

communication

s and initiatives

of mutual

interest

Regular communications with Executive and Legislative branch partners is

increasing as the legislative session nears. AOC legislative staff are

communicating with court councils on a regular basis in support of their

legislative and budget initiatives and to share information in advance of the

legislative session.

The AOC will continue to communicate with all councils throughout the

legislative session via daily meeting notes, twice-weekly legislative reports,

weekly teleconferences, and a legislative tracking website.

Initiative 5 -

Modernize

court

information

collection and

workload

assessment to

accurately

reflect the work

of the courts

The Judicial Council adopted the Georgia Court Guide to Statistical

Reporting at its August 9, 2017 meeting. The Guide will serve as the

official, approved way for Georgia courts to report their caseload.

Research is working to improve the availability of caseload data and make it

more interactive. The goal is to move towards a click-based interface that

will allow users to create reports and compare county caseloads.

Initiative 6 -

Promote

effective multi-

disciplinary

judicial

education

practices across

multiple

councils and

groups

Recommendations on best practices in training and education for trial court

judges are being created by the Judicial Council Standing Committee on

Education and Training. The recommendations seek to advance and support

efforts made by the Institute of Continuing Judicial Education.

Initiative 7 -

Enhance the

professional

and ethical

image of the

judiciary in the

community

Georgia judges who “ride the circuit” have been profiled in the Georgia

Courts Journal. (http://journal.georgiacourts.gov/article/riding-pine-judge-

raymond-george)

A Law Day coloring contest has been held. Award ceremonies honoring the

winners of the contest have taken place.

(http://journal.georgiacourts.gov/article/law-day-coloring-contest)


http://journal.georgiacourts.gov/article/riding-pine-judge-raymond-george

http://journal.georgiacourts.gov/article/riding-pine-judge-raymond-george

http://journal.georgiacourts.gov/article/law-day-coloring-contest



Initiative 8 -

Monitor and

share trends

and best

practices of

interest to the

judiciary

AOC staff are identifying emerging topics and trends impacting the courts

and will offer best practices or recommendations for addressing such trends.

Initiative 9 -

Assist the

judiciary in

business

continuity and

leadership

succession

planning

A Sub-Committee on Emergency Preparedness and Continuity of Judicial

Operations has been created. The Sub-Committee will update and modernize

the Judicial Council Emergency Operations Plan previously created in 2005.


244 Washington Street SW • Suite 300 • Atlanta, GA 30334 404-656-5171 • www.georgiacourts.gov



Memorandum

TO: Judicial Council Members FROM: Judge David Emerson

Chair, Standing Committee on Judicial Workload Assessment RE: Policy on the Submission of Caseload Reports by Trial Courts DATE: November 20, 2017

On November 3, 2017, the Standing Committee on Judicial Workload Assessment (the "Committee") met to discuss the Trial Court Caseload Reporting Policy. The Committee voted in favor of the attached Policy and is seeking Council approval. Georgia’s caseload reporting has improved in recent years, and the Committee wishes to place structure around the overall reporting process to ensure statutory deadlines are met. The new requirement to submit an annual report to the legislature is by October 1 of each year. The Committee believes that a statewide policy is needed to ensure compliance. The attached policy contains four main parts:

1. Section 1 contains the reasons for establishing the policy and its overall goals. 2. Sections 2.1 and 2.2 contain the process for initiating, collecting, and monitoring

caseload reporting, including certain deadlines for reporting. 3. Section 2.3 contains the process for making corrections and late submissions to caseload

data. 4. Section 2.4 contains requirements for AOC to publish caseload data on certain dates.

The Committee believes this policy will further improve the caseload collection process by making known the requirements of the Council to all Georgia courts and the AOC. If approved, this policy will apply to the annual data collection of Georgia’s approximate 1,093 trial courts. The Committee recommends adoption of the attached policy by the Council.


Policy on the Submission of Caseload Reports by Trial Courts

Section 1 – Policy

1.1 – Introduction

This policy governs the Judicial Council’s annual collection of caseload data from all trial courts. The intent of this policy is to ensure that the Administrative Office of the Courts (AOC) accurately and efficiently collects caseload reports for all trial courts, aggregates and publishes those reports, and adheres to statutory and uniform rule requirements for court data collection, transmission, and publication. 1.2 – Policy Statements

1. All trial courts will annually submit to the AOC their caseload reports as defined by the Standing Committee on Judicial Workload Assessment in consultation with each individual court council.

2. The Judicial Council will annually review and approve the data required of all trial courts.

3. All caseload reports submitted to the AOC will comply with applicable statutory and

uniform rule requirements. Section 2 – Caseload Reporting

2.1 – Initiation

1. For each class of trial court, the AOC will electronically notify all relevant parties no later than December 1 of the preceding year, of the caseload reporting information necessary to timely complete their reports.

2. Relevant parties will include but will not be limited to clerks of court, chief judges, district

court administrators, and council executive directors.

3. Clerks of court are the source of truth for all caseload reports and all data are to be submitted by them except under extenuating circumstances as defined below.

2.2 – Collection and Monitoring

1. Caseload data will be collected by the AOC via an online tool. All caseload reports must be made in the AOC caseload portal by registered users. Alternative means of caseload reporting are not permitted, but the AOC will provide email and phone support to all courts requesting help.

2. Other than the initiation, the AOC will provide at least two notices of caseload reporting requirements to all relevant parties, though parties need not be further contacted once a report has been received.

3. The AOC will, as staffing permits, provide individual follow up to all courts submitting caseload reports.

4. All trial courts will submit final caseload reports no later than March 15 of each year. 2.3 – Corrections and Late Submissions

1. Corrections to caseload reports and late caseload report submissions are required to follow

the procedure below. 2. Within 30 business days of March 15 of the reporting period, corrections and late

submissions may be made by submitting a request to the AOC. The request must include the data to be corrected and an allowance that the AOC may enter the data into the online tool instead of the clerk.

3. Caseload report corrections and late submissions requested after 30 business days following

March 15 must be accompanied by written approval from the chief judge and are subject to approval by the AOC after consultation with the Chair of the Standing Committee on Judicial Workload Assessment.

4. Caseload reports from previous years are not permitted unless requested in writing by the

clerk of court and chief judge and are subject to approval by the Standing Committee on Judicial Workload Assessment after investigation by the AOC.

2.4 – Publication and Legislative Reporting

1. Caseload reports will be published by the AOC no later than June 1 of each year.

2. The AOC will include in its annual report a summary of all caseload data received during

the year along with any relevant analysis.

3. The AOC will provide caseload data to other state agencies as required by law and uniform rule.




Memorandum TO: Judicial Council of Georgia FROM: Judge Brian Rickman, Chair RE: Judicial Council Standing Committee on Education and Training

Recommendations DATE: November 27, 2017

The Judicial Council Standing Committee on Education and Training (Committee) met September 21, 2017 to discuss Strategic Plan Key Initiative #6: promote effective multi-disciplinary judicial education practices across multiple councils and groups. A Supreme Court Order (Order) dated September 1, 2016 charges the Committee with making recommendations of best practices in training and education of trial court judges to the Judicial Council.

The Order also allowed for the appointment of advisory members. Doug Ashworth, Institute of Continuing Judicial Education Executive Director; Ms. Elena Kaplan, President of the State Bar designee; Ms. Tangela King, Institute for Continuing Legal Education Executive Director; Ms. Yolanda Lewis, President of Georgia Council of Court Administrators; and Judge Russell “Rusty” Smith, Mountain Circuit were appointed as advisory members. At a recent Committee meeting, Mr. Ashworth presented evidence of cross-training and interdisciplinary training opportunities between classes of courts offered January 1 – August 31, 2017. These efforts directly align with Key Initiative #6.

At the September 21 meeting, the Committee identified five recommendations which seek to advance or support efforts made by the Institute of Continuing Judicial Education to offer best practices in training and education of trial court judges. The Committee presents the following for consideration.

Recommendations:

Request for ICJE to advertise on its website common course offerings, e.g. ethics, judicial writing, evidence, and use of court interpreters so judges from any class of court can participate, based on space availability.


The National Judicial College (NJC) is the leading provider of judicial education for judges. Each court council should explore and consider making available a select number of scholarships available for judges to participate in training offered by NJC. Funding for the scholarships may be secured from council dues or state appropriations.

It is recommended that ICJE create a library of knowledge where judges can review and research information on specific topics in the event of one’s inability to attend an in-person training event.

That the Council of Juvenile Court Judges review the current provisions of the juvenile code that mandate that judges and associate juvenile court judges exercising juvenile court jurisdiction receive 12 hours of continuing judicial education a year as established by the Council of Juvenile Court Judges in conjunction with the Institute of Continuing Judicial Education.

JCSCET supports ICJE’s Fiscal Year 2019 Enhancement Request for an Electronic Media Curriculum Project Coordinator. This enhancement request has been unanimously approved by the ICJE Board of Trustees; the Judicial Council Budget Committee; and, the full Judicial Council.

Upon confirmation and adoption of these recommendations, the Committee believes it has satisfied the terms of its mission. Further, since the creation of the Judicial Council Standing Committee on Education and Training (JCSCET), four members of JCSCET – including the Chair; representatives of the educational apparatuses representing the Superior Courts; the Juvenile Courts; and the Magistrate Courts have been added to the ICJE Board of Trustees. These additions to the ICJE Board of Trustees creates direct links that will facilitate and communicate the needs of the trial court judges’ education and training councils.




Memorandum TO: Judicial Council of Georgia FROM: Michelle Barclay, Division Director RE: AOC’s Communications, Children, Families, and the Courts Division DATE: December 8, 2017 The Communications, Children, Families and the Courts Division of the AOC serves as the hub for all communications and provides staff for the Supreme Court of Georgia Committee on Justice for Children, chaired by Justice David Nahmias; the Georgia Commission on Child Support, chaired by Judge Michael Key; and the Access, Fairness, Public Trust and Confidence Committee of the Judicial Council, co-chaired by Justice Robert Benham and Justice Carol Hunstein, of which Justice Britt Grant and Justice Michael Boggs are now both committee members; as well as grant funded work related to children and families. This Division also assists with general grant research for courts in partnership with the legal staff in the Director’s Division. Staff also serves as a liaison to the Georgia Commission on Family Violence (GCFV), chaired by Holly Tuchman, and the Council of Accountability Court Judges with Judge Stephen S. Goss as its current Chair. Following is a brief synopsis of the work.

Committee on Justice for Children (J4C): Former Juvenile Court Judge Jerry Bruce is the program attorney for the J4C. The federal grant funding for J4C work has been fully restored after a drastic but temporary reduction in late 2016 due to the lack of a federal budget. Grant funding for 2017 has begun which will last until December 30th, 2018. Funding beyond that date is uncertain. The priorities for now include:

The Court Process Reporting System provides a daily snapshot of data relating to every child in foster care, allowing judges, attorneys, and CASAs to stay up-to-date on every factor related to the child’s permanency plan. The system also allows for uploading and e-filing of court orders, which are then sent to DFCS


every day, allowing for improvement of outcomes when the State seeks federal reimbursement for a portion of foster care expenses.

The Cold Case Project, jointly managed by J4C and the Office of the Child Advocate, identifies foster care cases which are not moving toward permanency and convenes a series of permanency round-table meetings to brainstorm solutions to permanency roadblocks.

The Peer Review Project, also jointly managed by J4C and the Office of the Child Advocate, sends child welfare law experts to view dependency proceedings in juvenile courts around the State. The Peer Reviewers evaluate hearing quality and attorney function using a national best-practice model. Each court receives a written evaluation with recommendations, and regional trainings are offered for attorneys to address issues revealed during the reviews.

The Court Improvement Initiative is a twice-yearly meeting group composed of

leading juvenile court judges and their stakeholders. J4C reviews the best-practice model with each jurisdiction individually, and at the meetings each jurisdiction reports on its efforts to implement best practices. Each meeting includes a session for judges at which data for each jurisdiction are reviewed and moderated discussions are held on best-practice implementation in light of needs revealed by the data.

J4C also sponsors two awards for child welfare attorneys and one for DFCS case managers to highlight the importance of this work. The next awards will be given at the State Bar annual meeting in June 2018.

A Georgia Child Welfare Law Specialist meeting was held on Oct 12-13, 2017; attended by over 40 GA attorneys who have become CWLS certified.

J4C and OCA sponsored a statewide Summit that took place November 27-29,

2017. It was attended by judges, attorneys, DFCS case managers and supervisors, CASAs, service providers, and other stakeholders.

J4C provides expertise on a wide range of juvenile court topics at state and national conferences.

The next meeting will be on December 14, 2017. See: j4c.georgiacourts.gov

Communications: Improving communication can improve justice in all Georgia courts through collaboration and innovation, so it continues as a priority under the Judicial


Council Strategic Plan. Staff works daily to promote and even generate positive content about Georgia’s judicial branch, all courts, and judges. Our aim with this content continues to instill faith in our state’s system of justice and the rule of law. Daily and periodic tasks within Communications include writing the JC/AOC Annual Report-https://jcaocannual.report/, publishing the Georgia Courts Journal http://journal.georgiacourts.gov/; maintaining the Georgia Courts Directory-http://georgiacourts.knack.com/gcd2/, assisting with drafting and distribution of press releases; updating Judicial Council materials; providing substantive content for our Facebook/Twitter pages and the JC/AOC website (https://www.facebook.com/GACourts; https://twitter.com/Gacourts) and http://georgiacourts.gov; taking photos and drafting daily messages for events and communications. A Day on the Bench event to celebrate Constitution Day was held in the Piedmont Judicial Circuit. A new Day on the Bench to celebrate Bill of Rights Day is planned for December 15 in the Middle Judicial Circuit which will be broadcast and archived on our livestream channel, https://livestream.com/accounts/15641258.

Child Support Commission: The Commission staff works collaboratively with Georgia’s Department of Human Services in several areas, including supporting the Parental Accountability Courts (PAC) and general support for the process and the law surrounding child support. We continue to support and train PAC coordinators on use of the database that will give us statistical evidence of the efficacy of those courts. We have now provided our Research Department with relevant information from the database to undertake a study of the effectiveness of the Parental Accountability Courts. When completed, we will share the results with DCSS and the PAC Subcommittee of the CACJ. The Commission met on October 10, 2017 and has approved a proposed bill to correct one provision that passed last legislative session that requires the use of multiple worksheets in families with more than one child; this was not proposed by the Commission but changed pre-filing; the Commission seeks to reinstate its original language and intent. Courts, attorneys, mediators and the public are using the new online calculator; the only issue continues to be internet connectivity within the courthouses around the state. Commission staff is training users on the new calculator, and has videos available on its website for use by self-represented litigants. We have a series of training sessions planned, at least one per judicial district, which began in with five trainings in November 2017 and will continue through May 2018. Staff trained DCSS Managers on November 29, 2017. The Commission is ready to begin preparation for its quadrennial federal guidelines review in 2018, and has also elected to retire the Excel child support calculators on September 30, 2018. http://csc.georgiacourts.gov.

Access, Fairness, and Public Trust and Confidence Committee (AFPTCC): The AFPTCC continues to work on a variety of projects designed to strengthen the public’s trust and confidence in the judicial system. Contract attorney, Karlise Grier, has recently accepted a new job as Executive of Georgia Supreme Court's Chief Justice's Commission on Professionalism. Interviews to hire a new contract attorney to staff the AFPTCC are underway.


Attorney Talley Wells has prepared drafts of the companion guide and a bench card to assist judges facing mental illness in the courtroom for the Americans with Disabilities Act Court Handbook. These drafts are in the final stage of preparation for printing.

Georgia State University Law Intern, Timur Selimovic who is also a fellow with the University’s Center for Access to Justice, continues on with AFPTCC. He is continuing to work toward gathering information for a tool kit for Georgia judges that will provide information on a variety of self-help service delivery models.

Under the leadership of Justice Carol W. Hunstein and Judge Sara Doyle, the AFPTCC has just successfully wrapped up the 2017 Annual Conference of the National Association of Women Judges (NAWJ). The theme for the conference is Access to Justice: Past, Present and Future. Conference pictures are posted here: https://twitter.com/hashtag/NAWJATL

AFPTCC continues discussions with the Council of Municipal Court Judges (CMunCJ); the Georgia Municipal Association and ICJE’s on continued trainings. http://afptc.georgiacourts.gov/

Family Violence Grants: In addition to serving as liaison to the GCFV as mentioned previously, the staff in this division works with multiple state partners on to address family violence case improvement. A Criminal Justice Coordinating Council (CJCC) Violence Against Women Act (VAWA) grant was used to bring a national Domestic Violence training to Georgia's judges from October 22-25, 2017. Staff also provides limited support to the state funded civil legal services grants for victims of domestic violence. We are in the process of preparing the final report on the federal Office of Violence Against Women grant that helps fund the DeKalb County DV Court; that court has received the grant on its own behalf going forward.

JUDGE’S GUIDE TO MENTAL ILLNESS IN THE COURTROOM

Categories of Observation: Do you see something in one of the following areas that does not make sense in the court context?

Courtroom Observations:Examples of how behaviors in the observational areas can indicate that the individual may have a mental illness:

Appearance: Age, hygiene, attire, ticks/twitches

Looks older/younger than the listed date of birth

Wears inappropriate attire (e.g. multiple layers of clothing in the summertime)

Trembles or shakes, is unable to sit or stand still *Please be mindful that other disabilities may also impact appearance

Cognition: Understanding/appreciation of situation, memory, concentration

Does not understand where s/he is

Seems confused or disoriented

Has gaps in memory of events

Answers questions inappropriately *Please be mindful that other disabilities may also impact cognition and memory.

Attitude: Cooperativeness, appropriate participation in court proceeding

Stays distant from attorney or bench

Acts belligerently or disrespectfully

Is not attentive to court proceedings *Please be mindful that other disabilities may impact attitude and behavior.

Affect/Mood: Eye contact, outbursts of emotion/indifference

Does not make eye contact with judge or court staff

Appears sad/depressed, or too high‐spirited

Switches emotions abruptly

Seems indifferent to severity of proceedings

Appearance of responding to voices (or other stimuli)

Lack of emotional response *Please be mindful that other disabilities may also impact affect/mood

Speech: Pace, continuity, vocabulary (Note: Can this be explained by discomfort with English language?)

Speaks too quickly or too slowly

Misses words

Uses vocabulary inconsistent with level of education

Stutters or has long pauses in speech *Please be mindful that other disabilities may also impact speech **Special care may be necessary if a language interpreter is being used.

Thought Patterns and Logic: Rationality, tempo, grasp of reality

Seems to respond to voices/visions

Expresses racing thoughts that may not be connected to each other

Expresses unusual ideas *The Judge’s Criminal Justice/Mental Health Leadership Initiative provided the content and format for this Bench Card. Additional information

can be found in the 2017 Handbook for Georgia Court Officials on Accessibility for Individuals with Disabilities and in the Companion Guide for

Mental Health and Developmental Disabilities.

When Mental Illness Appears to be a Factor, Consider:

Prevalence: Serious Mental Illness: 4% of all adults in the United States have a serious mental illness.

Any Mental Illness: 17.9% of all adults in the United States have a mental illness.* *2015 Data from National Institute of Mental Health https://www.nimh.nih.gov/

Contextualizing observations: While these categories of observation are provided to alert judges that an individual

may have a mental illness that requires judicial action and/or attention by a mental health professional, they are not definitive

signs of mental illness. Certain contextual elements are important to remember:

Appearing in court is an anxiety‐provoking experience for most people.

Individuals may not be prepared to navigate a system as complex and demanding as the justice

system.

Individuals may exhibit skills that have allowed them to survive in their communities but are poor

fits for interacting with the court (e.g. toughness, argumentativeness, silence).

JUDICIAL INTERACTIONS

Courtroom Situations: Examples of commonly observed scenarios

Immediate Responses:Recommendations for immediate situation management

When a mental illness is affecting a person’s courtroom participation

Speak slowly and clearly

Avoid jargon

Explain what’s happening

Write instructions down if dates/addresses are involved

Treat the individual with the respect you would give other adults

If appropriate, use principles of Motivational Interviewing. (developed by Drs. William Miller and Stephen Rollnick). ‐Express empathy ‐Point out discrepancies between goals and current behavior ‐Roll with resistance ‐Support self‐efficacy

Loss of Reality: When the person appears confused or disoriented

Ground person in the here and now (based on LOSS Model developed by Paul Lilley)

Loss of Hope: When the person appears sad, desperate

As appropriate, instill hope in positive end result.

To the extent possible, establish a personal connection.

Loss of Control: When the person appears angry, irritable

Listen, defuse, deflect

Ask the person about why s/he is upset

Avoid threats and confrontation

Loss of Perspective: When person appears anxious, panicky

Seek to understand

Reassure and calm person

Deflect concerns

Before Interacting with a Court Participant, Consider:

How the courtroom environment is affecting the defendant:

O Are there noises or distractions in the courtroom that are negatively affecting the court participant?

O Is there a family member or defense attorney who can help calm the person?

Safety for yourself, the court staff, and the individual.

What is being asked and said in open court and how this may affect future proceedings.

While Interacting with a Court Participant Consider:

When Taking Action, Consider:

Have the person approach the bench: Would this de‐escalate the situation or create a safety risk?

Re‐calling the case later in the session/calendar: Could this help the court participant calm down?

Determining whether to proceed: Is a fitness or competency evaluation appropriate?

Entering orders:

O Does the person have the capacity to understand the order?

Bond conditions/sentences in criminal cases:

O What effect will bond/conditions have on regularity of treatment?

O What effect will time in jail have on mental health, access to medication, benefits maintenance, etc.?

O How will bond/conditions/time in jail affect the defendant’s access to a primary caregiver?

Requesting mental health information: What exactly do you need to make the decision facing you?

Making a referral to a mental health service provider or other services.

Council of Superior Court Judges of Georgia Suite 104, 18 Capitol Square, Atlanta, Georgia 30334

(404) 656-4964 Fax (404) 651-8626

Council of Superior Court Judges Report to Judicial Council December 2017 The Council of Superior Court Judges will hold its annual meeting and winter training seminar in Athens, Georgia, January 16-19, 2018. Approximately 250 judges and senior judges are expected to participate. The educational seminar will include such topics as issues and sanctions on motions for discovery; evidentiary issues in complex divorce cases; budget, staffing, and human resource issues in accountability courts; probation best practices for release; business and employment law; jury charges, instructions, and verdict forms for divorce and child support; training for senior judges to assist with accountability courts; criminal evidentiary issues such as those involving multiple defendants, child molestation, and parameters for forensic interviews; appeals involving workers’ compensation and employment issues; rules for interviewing a child to determine parental alienation; ethical issues and boundaries for accountability courts; sovereign citizens; considering Daubert motions; the opioid epidemic; reports from the Court Reform Council and State Bar of Georgia; an update on procedural rules of the Judicial Qualifications Commission; ethical obligations outside the courtroom; awarding attorneys’ fees; and court security and judicial emergency operations. Three Superior Court Judges recently announced retirements. Judge Wade Crumbley of the Flint Judicial Circuit; Judge Albert Collier of the Clayton Judicial Circuit; and Judge Frank Jordan of the Chattahoochee Judicial Circuit will all retire effective January 1, 2018. They join two other judges, Judge Freddy Mullis of the Oconee Judicial Circuit, who also retires effective January 1, 2018, and Judge Tom Baxley of the Pataula Judicial Circuit, who has already retired effective November 1, 2017. The Governor will appoint all five replacements, as well as the new judgeship approved for the Northeastern Judicial Circuit that becomes effective January 1, 2018. Superior Courts now have 116 accountability courts, with more planned to begin throughout the current fiscal year. Currently, accountability courts are operating in 48 of 49 circuits. By the end of FY 2018, accountability courts will be operational in all 49 judicial circuits. CSCJ is sad to acknowledge the death of former Superior Court Judge Michael C. Clark of the Gwinnett Judicial Circuit. Former Judge Clark retired in March 2014 to return to the practice of law. He passed away on November 2, 2017.

Council of State Court Judges Impartial Courts Judicial Excellence Accessible and Efficient Justice

244 Washington Street, S.W.

Suite 300 Atlanta, GA 30334

404-651-6204 FAX 404-463-5173

Report of the Council of State Court Judges

Judicial Council Meeting December 8, 2017

State Court judges have completed the time and motion study of their work from October 16 – November 12. The National Center for State Courts and the Administrative Office of the Courts facilitated this time study on the work of the state and superior courts. The data was collected and reported by our courts with over 86% of the state court judges participating in this study. The last study was conducted in 2000 and the report was published in 2001. Since that time, many changes have occurred in our state courts on the way caseloads are processed. Also, more case categories have been added to allow analysis of more complex civil cases and criminal accountability court programs. State Court judges have been working hard with the Judicial Council Ad Hoc Committee on Misdemeanor Pretrial Release and Bail Reform. DeKalb County State Court Chief Judge Wayne Purdom, who chairs the Judicial Council Ad Hoc Committee on Misdemeanor Pretrial Release and Bail Programs, made a presentation at the November meeting of the Criminal Justice Reform Council. At this meeting the Ad Hoc Committee presented its report and recommendations. The Criminal Justice Reform Council has approved a request by the Council of State Court Judges to include in its report a provision that would permit state court judges and solicitor generals to amend the statute on first offender consideration to permit petitions for retroactive consideration of misdemeanor first offender status by defendants convicted of their first misdemeanor offense. The amended statute would allow these petitions to be heard in the state court from which the case was disposed.

On Friday, November 17th, the recipients of the Judicial Council art contest awards from the Savannah area were honored with a ceremony by Chief Judge Greg Fowler in the courtroom of the State Court of Chatham County.

The Council wishes to extend its congratulations to Judge Janis C. Gordon of the State Court of DeKalb County as this year’s recipient of the prestigious Ogden Doremus / Kent Lawrence Award. This award is given to a state court judge who has achieved the highest level of respect from his or her peers as a judge; recognized for their judicial ethics and professionalism on the bench and their involvement in their communities. Fulton County State Court Judge Jane Morrison has been appointed to the Judicial Council Standing Committee on Court Reporting Matters.

Staff Bob Bray Executive Director

Executive Committee

Judge H. Gregory Fowler President (Chatham) Judge Nancy Bills President Elect (Rockdale) Judge Joseph C. Iannazzone Secretary (Gwinnett) Judge T. Russell McClelland Treasurer (Forsyth) Judge Richard A. Slaby Immediate Past President (Richmond District 1 Judge Gregory V. Sapp (Chatham) District 2 Judge R. Violet Bennett (Wayne) District 3 Judge John K. Edwards, Jr. (Lowndes) District 4 Judge Jason T. Harper (Henry) District 5 Judge Alan W. Thrower (Baldwin) District 6 Judge John G. Breakfield (Hall) District 7 Judge Wesley B. Tailor (Fulton) District 8 Judge Allen Dee Morris (Cherokee)

The Council just concluded its Fall Training Conference at St. Simons Island, Georgia. Some of the courses presented were on: Criminal Case Law Update; DDS Updates, The Judge’s Role in Voir Dire; Access to the Courts; Case Exchange; Evidence; and What Judges Need to Know About Legal Malpractice. Respectfully submitted,

H. Gregory Fowler Judge H. Gregory Fowler President, Council of State Court Judges

244 Washington Street SW • Suite 300 • Atlanta, GA 30334 Phone: 404-656-5171 • Fax: 404-651-6449

Council of Probate Court Judges of Georgia

Judge Rooney Bowen, III President (Dooly)

Judge Sarah Harris

President Elect (Macon-Bibb))

Judge T. J. Hudson First Vice President (Treutlen)

Judge Darin McCoy

Secretary-Treasurer (Evans)

Judge Alice W. Padgett Immediate Past President (Columbia)

The following is a summary of activities and current initiatives by the Council of Probate Court Judges: Judge Tammy S. Brown Congratulations are in order for Barrow County Probate Judge Tammy Brown, who was recently sworn-in as the COAG vice president. In the previous year, Judge Brown served in the role of secretary-treasurer. Judge Brown is an active member of our Council and we are overjoyed that she will continue to serve as our Council’s representative on the COAG Board of Directors Judge Pinkie T. Toomer We are proud to recognize Fulton County Probate Judge Pinkie Toomer, who was recently inducted into the Gate City Bar Association’s Hall of Fame. Along with Judge Toomer, the late-Judge Willie Lovett, Jr. of the Fulton County Juvenile Court was inducted posthumously. Judge Toomer is one of the founding members of the Gate City Bar Association and a past recipient of the Judge Thelma Cumming Moore Legacy Award. Upcoming Events Probate Judges’ Day at the Capitol will be held on January 22, 2018. The COAG Legislative-Leadership Conference will be held January 23-25, 2018 at the Georgia Tech Hotel and Conference Center and COAG Day at the Capitol will be held on January 25, 2018. Finally, our Spring Conference will be held March 19-22, 2018 at the King and Prince Hotel in St. Simons. Season’s Greetings Last but not least, the Christmas season is upon us and during this time, we are each reminded of those things that we hold so dear: our faith, our family and the multitude of blessings that have been bestowed on us each day. On behalf of our Council, I would like to wish all of our colleagues in the judiciary a Merry Christmas, a Happy New Year and I hope that you each return back in the coming year rested and resolute to continue in the service of those who we have been entrusted to serve. Respectfully submitted,

Judge Rooney Bowen, III President, Council of Probate Court Judges of Georgia

Report to Judicial Council of Georgia December 8, 2017

Council of Magistrate Court Judges

244 Washington St., S.W., Suite 300, Atlanta, GA 30334-5900 (404) 656-5171 • Fax (404) 651-6449

Georgiamagistratecouncil.com President Judge James M. Griner, Jr Screven County 1st Vice-President Judge Glenda Dowling Pierce County 2nd Vice-President Judge Joyette Holmes Cobb County Secretary Judge Berryl A. Anderson DeKalb County Treasurer Judge Mary Kathryn Moss Chatham County Immediate Past President Judge Kristina Hammer Blum Gwinnett County District One Judge Michael Barker Judge Jennifer Lewis District Two Judge Beth Carter Judge Bryan Cavenaugh District Three Judge Angela Sammons Judge James Thurman District Four Judge Phinia Aten Judge Curtis Miller District Five Judge James Altman Judge J. Jessy Lall District Six Judge Marcia Callaway-Ingram Judge Betsey Kidwell District Seven Judge Jennifer Inmon Judge Haynes Townsend District Eight Judge Mike Greene Judge Connie Holt District Nine Judge Bill Brogdon Judge Gene Cantrell District Ten Judge Deborah L. Green Judge Jason Troaino Members- at- Large Judge Alex Atwood Judge Wanda Dallas

Report to the Judicial Council of Georgia December 08, 2017

The following is an update of the activities of the Council of Magistrate Judges: Members of the Legislative Committee are currently working with members of the Towing and Recovery Association of Georgia and the Georgia Department of Revenue, at the request of Chairman Wendell Willard, to rewrite the Abandoned Motor Vehicle Statute. The current version of the proposed legislation has been submitted to the Judicial Council for review, but it is currently a work in progress. One of the goals of the group is uniformity throughout the state, to include statutory forms approved by the Judicial Council. Upcoming Events: The annual Chief Magistrate Update Course will be held on February 5-6 at the GA Tech Global Learning Center in Atlanta. Prior to the start of the conference, Magistrates from across the state will gather at the Capitol for Magistrate Day at the Capitol. A 40 hour Basic Criminal Certification for new judges will be held in Athens February 25 – March 02.

Executive Director Sharon Reiss


404.656.2613 • www.gaaccountabilitycourts.org

Council of Accountability Court Judges

Report to Judicial Council

December 2017

In the time since the Council of Accountability Court Judges (CACJ) last reported to the Judicial

Council the CACJ has held meetings of the Executive, Standards & Certification, Training and

Funding Committees. The CACJ is pleased to report the following Council activities and

accomplishments:

The Veterans Treatment Court Subcommittee, primarily staffed by Chief Certification Officer Mr.

Josh Becker, has successful worked to draft recommended State Standards to guide the further

development of Georgia’s Veterans Treatment Courts. These standards are in accordance with

O.C.G.A. § 15-1-17. Further still, the Council body has approved the recommended standards as of

November 2017. All Veterans Treatment Courts will begin to pursue certification beginning in

December 2017.

The CACJ Training Committee met on October 20th to begin to plan the FY19 Training Calendar

and 2018 Statewide Accountability Courts Training Conference. It is anticipated that the 2018

Conference will include dual tracks to encompass basic training sessions for implementation courts,

as well as advanced courses for existing courts. Additionally, the Training Committee with the

support of the Institute of Continuing Judicial Education, is in the process of implementing a New

Judges Training specific to Accountability Courts for FY19. This new training is anticipated to be

offered in July 2018.

The CACJ Funding Committee met November 3rd to review FY18 Accountability Court

Supplemental Grant Applications. In total the CACJ received fifty-seven (57) applications for

funding totaling $2,467,837.00; the CACJ was able to award $1,001,980.00. Within the fifty-seven

(57) applications for funding, fifty-fifty (55) applications were for exiting Accountability Courts and

two (2) were for new courts. The two new implementation courts awarded funding are the Rockdale

County Family Treatment and the Oconee Judicial Circuit Adult Felony Drug Court. Beginning

January 1, 2018 every circuit within the State will have an established Accountability Court.

The CACJ continues to work closely with the Administrative Office of the Courts, and the Criminal

Justice Coordinating Council, to develop the Accountability Courts of Georgia under the guidance

and expertise of Judges. The CACJ is looking forward to another successful year in 2018.

Taylor Jones

Executive Director Judge Stephen S. Goss

Executive Committee Chair

Dougherty Judicial Circuit

Council of Accountability Court Judges

SURVEY ON DELIVERY METHODS FOR CONTINUING JUDICIAL EDUCATION

COMPILED BY:

INSTITUTE OF CONTINUING JUDICIAL EDUCATION THE UNIVERSITY OF

GEORGIA

1150 SOUTH MILLEDGE AVENUE ATHENS, GA

30602‐5025

September 5, 2017


Origination This survey was commissioned by the Judicial Council Standing Committee on

Education and Training (“JCSCET”).

Purpose To solicit feedback from ICJE constituents on preferred delivery methods regarding

continuing judicial education (“CJE”).

Methodology/Survey Categories The four CJE delivery method categories used in the survey are CJE delivery methods used by the National Association of State Judicial Educators’ (“NASJE”) Curriculum Design Materials.

The survey instrument was created by ICJE staff, utilizing Events Air software.

The survey link was disseminated to all ICJE constituents on Monday, August 21, 2017 at

8:00 am EST. A reminder email message was sent Monday, August 28, 2017. The survey link was active for ten (10) business days, closing on Friday, September 1, 2017, at 5:00 pm EST.

Survey Results

Survey results are being distributed to the ICJE Board of Trustees; the leadership of all ICJE constituency groups; JCSCET members; and the Judicial Council of Georgia.

Survey Response Rate

The survey was distributed to 2,087 ICJE Constituents. 887 constituents completed the survey, representing a 42.50% response rate.


COPY OF SURVEY INSTRUMENT

A hard copy of the survey instrument follows this cover page.

**Reminder: If you have not already submitted your responses to this survey,

please do so by Friday, September 1, 2017. We greatly appreciate your

feedback.**

YOUR FEEDBACK IS IMPORTANT - PLEASE COMPLETE THE ATTACHED SURVEY BY

FRIDAY, SEPTEMEBER 1, 2017 AT 5:00 PM

To: All ICJE Constituency Groups

Fr: Douglas Ashworth, ICJE Executive Director

Re: Survey On Judicial Training Delivery Methods

Greetings from the Institute of Continuing Judicial Education (ICJE). Since

assuming the position of ICJE Executive Director on January 1, 2017, I have been

privileged to meet many of you, and I look forward to meeting and working with

all ICJE constituency groups.

I am writing to solicit your feedback about the delivery method(s) you prefer

regarding continuing judicial educational training. PLEASE TAKE A FEW MOMENTS

TO COMPLETE THE SURVEY LINKED HERE JCSCET Survey BY FRIDAY, SEPTEMBER 1,

2017.

This survey is being sent to you on behalf of the Judicial Council Standing

Committee on Education and Training (JCSCET), in order to solicit feedback on

preferred delivery methods.

PLEASE NOTE: (1) The leadership of the educational apparatus for each ICJE

constituency group has been informed about the dissemination of this survey;

and, (2) The survey results will be shared with the ICJE Board of Trustees, the

leadership of each of ICJE constituency groups; and JCSCET members.

Any questions or assistance with this process may be directed to the ICJE

staff at [email protected] or 706-369-5813.

[SURVEY – ESTIMATED TIME TO COMPLETE = 5 MINUTES]

PURPOSE: The purpose of this survey is to solicit your feedback about the delivery method(s) you prefer regarding continuing judicial educational training. SURVEY CATEGORIES: The four items listed in this survey are based upon the CJE delivery methods outlined in the National Association of State Judicial Educators’ (“NASJE”) Curriculum Design materials. SURVEY RESULTS: The survey results will be shared with the ICJE Board of Trustees, the leadership of each of ICJE constituency groups, and JCSCET members. INSTRUCTIONS: Numerically score each option, with 1 being low and 5 being high, for your opinion regarding each of the delivery methods of continuing judicial education programming listed below. **This survey may only be submitted one time per constituent.**

(Question 1) LIVE IN-PERSON SEMINARS AS CJE DELIVERY METHOD (Standard ICJE Seminars,

face-to-face interaction, survey-topical coverage per class-of-court, delivery over 2-3 days, plenary and/or breakout sessions).

1 - Ο (Lowest) 2 - Ο 3 - Ο 4 - Ο 5 - Ο (Highest)

(Question 2) LIVE ELECTRONIC/ONLINE BASED SEMINARS AS CJE DELIVERY METHOD

(Synchronous communication – online communication in real time. Example: A chat room, people's comments to each other are relayed immediately, enabling a real-time discourse. Online conferencing with the benefit of voice over Internet protocol (VOIP) tools enabling real-time conversations to take place online. Designed either for topical consumption per class-of-court, or common topics common to multiple classes of courts).

1 - Ο (Lowest) 2 - Ο 3 - Ο 4 - Ο 5 - Ο (Highest)

(Question 3) NON-LIVE ELECTRONIC/ONLINE BASED SEMINARS AS CJE DELIVERY METHOD (Asynchronous communication - the relay of online information with a time lag. Examples:

Discussion forum; Readings; Videos; Self-Assessments. By communicating with a time lag, students are able to respond in detail to a question or topic that they might have answered incompletely in a real-time conversation. Designed either for topical consumption per class-of-court, or common topics common to multiple classes of courts). 1 - Ο (Lowest)

2 - Ο 3 - Ο 4 - Ο 5 - Ο (Highest)

(Question 4) NON-LIVE & SELF-STUDY PRODUCTS AS CJE DELIVERY METHOD (If offered for

CJE credit by individual participants, as well as implementing an advanced-approval process in accord with Training Council guidance. Designed either for topical consumption per class-of-court, or common topics common to multiple classes of courts). 1 - Ο (Lowest)

2 - Ο 3 - Ο 4 - Ο 5 - Ο (Highest)

- END OF SURVEY INSTRUMENT -

SURVEY RESULTS


SUMMARY

A majority of respondents prefer Live/In-Person seminars as a CJE delivery method.

The order of preference is:

(1) Live/In-Person;

(2) Non-Live/Self-Study; (3) Live Electronic (Synchronous);

(4) Non-Live Electronic (Asynchronous).

14 EDUCATIONAL APPARATUSES

• Council of Superior Court Judges’ MCJE Committee • Superior Court Clerks’ Training Council • State Court Judges’ Education Committee • State Court Judges NJO Committee • ICJE (Institute of Continuing Judicial Education) • CCLC (Commission on Continuing Lawyer Comp) • Probate Courts Training Council • Magistrate Courts Training Council • Council of Magistrate Court Clerks • Education and Certification Committee of the Council

of Juvenile Court Judges • Georgia Association of Juvenile Court Clerks Executive

Committee • Georgia Municipal Courts Training Council • Georgia Municipal Court Clerks Council • Training Committee of the Council of Accountability

Courts Judges

13 CONSTITUENT GROUPS SERVED BY ICJE

• Superior Court Judges • Superior Court Clerks • State Court Judges • Superior / State Court Staff Attnys/Law Clerks • Probate Court Judges • Probate Court Clerks • Magistrate Court Judges • Magistrate Court Clerks • Juvenile Court Judges • Juvenile Court Clerks • Municipal Court Judges • Municipal Court Clerks • Council Of Accountability Courts Judges

ICJE POINTS OF CONTACT

Douglas Ashworth, Executive Director

706-369-5793, [email protected]

Susan Nunnally, Administrative Specialist


Missy Tolbert, Event Coordinator


Tiffany Sargent, Event Coordinator


Briana Kelly, Event Planner


Laura Kathryne Hogan, Event Planner


GEORGIA COMMISSION ON DISPUTE RESOLUTION

244 WASHINGTON STREET, S.W., SUITE 300, ATLANTA, GEORGIA 30334-5900

404-463-3808; www.godr.org

The following is an update on the initiatives and activities for the Commission on

Dispute Resolution:

Carroll County ADR Program

Ms. Rita D. Carroll is the new Program Director for the Carroll County Mediation Center. Rita worked as a Child Support Agent from 1987 to 1993 in the Coweta

Judicial Circuit. In 1993, she became the Supervisor of the Douglasville Child

Support Office. After graduation from GSU College of Law in 2001, Ms. Carroll

served as a Special Assistant Attorney General covering Paulding, Polk, and

Haralson Counties. Since 2006, she has maintained a private practice focusing

primarily on Family Law and Bankruptcy.

The former director, Ms. Elmira Barrow, recently retired having served the

program for 21 years.

October 15-17 Proclaimed Dispute Resolution Week

Governor Nathan Deal signed a proclamation recognizing October 15-21, 2017

as Dispute Resolution Week in Georgia. Dispute Resolution Week supports the

education of judges, members of the Bar, and the public in finding durable

solutions to resolve disputes outside of a courtroom by utilizing mediation,

arbitration, and other restorative processes. The week is intended to empower

individuals, families, communities, organizations, and businesses to find

common ground through collaborative problem solving.

The Georgia Commission on Dispute Resolution, State Bar of Georgia Dispute

Resolution Section, and Georgia Office of Dispute Resolution are pleased to

promote these values and advocate for champions in the field of dispute

resolution.

Retiring Members

The Commission recognized retiring members Hon. J. Carlisle Overstreet and Mr.

Hubert J. Bell, Jr., for their service. Judge Overstreet served from 2009-2017, and

Mr. Bell served from 2010-2017. The Commission is grateful for their long-

standing commitment and dedication to the Commission, Office, and ADR

community.

Upcoming Commission Meeting Date

The next Commission meeting date is January 31, at 2:00 p.m. in Room #1 of the

State Bar of Georgia. Meeting information, as well as previous minutes, are

posted on the GODR website at www.godr.org.

Chair

Hon. Charles E. Auslander III

Executive Director

Tracy B. Johnson

Commission Members

Justice Keith R. Blackwell

Justice Britt C. Grant

Emily S. Bair, Esq.

Hon. Jane C. Barwick

Hubert J. Bell, Jr., Esq.

Raymond C. Chadwick, Jr., Esq.

Mary Donovan, Esq.

Hon. C. Andrew Fuller

Melissa C. Heard, M.S.S.W.

Timothy Hedeen, Ph.D.

Hon. Stefani R. Lacour

Hon. Amanda H. Mercier

Patrick J. O’Connor, Esq.

Hon. J. Carlisle Overstreet

Rep. Jay Powell, Esq.

Edith B. Primm, Esq.

Vjollca Prroni Young

http://www.godr.org/

December 2017

Report to Judicial Council

The Council has several programs and discussions that are ongoing this fall. Recent activity and discussions:

• All superior and state court clerks and their vendors have been made aware of the new civil forms that become effective January 1, 2018.

• Local Orders initiating civil eFiling mandates now in DeKalb State Court (limited case types), Fulton Magistrate, Fulton State, Fulton Superior, Houston Superior, Houston State, and the Ocmulgee Circuit;

• Funding challenges on implementing criminal eFiling;

• Civil e-Filing;

• 175 Total Courts

• 128 Superior Courts

• 49 State Courts

• 127 Counties

• Criminal e-Filing;

• 3 Courts are open as of 11/20/17

Thank you for the opportunity to update you on our work.

Tina Blankenship President Council of Superior Court Clerks & Clerk of Superior Court Webster County

Mike Holiman Executive Director Council of Superior Court Clerks 1231 Collier Road, NW Suite J Atlanta, GA 30318

GEORGIA COUNCIL OF COURT ADMINISTRATORS

244 WASHINGTON STREET, S.W., SUITE 300, ATLANTA, GEORGIA 30334-5900

WWW.GCCAONLINE.ORG

The following is an update on activities for the Georgia Council of Court

Administrators:

Fall Conference Highlights

The Georgia Council of Court Administrators celebrates its 20th anniversary at

this year’s fall conference held October 23-25 in Jekyll Island. The theme of the

conference was Legendary Leadership. It featured speakers on leadership and

visioning with several discussions on those leaders who helped create and

shape the Council into the organization it is today. Past presidents were

recognized and honored for their service and dedication. There were over a

hundred members in attendance at the conference which made it the most

well-attended conference to date.

On October 24, Hon. Charles E. Auslander III, Athens-Clarke County State Court

Judge and Chair of the Commission on Dispute Resolution administered the

oath of office to the new officers and board members.

Award of Merit

New this year was the Award of Merit which recognizes a member whose

“work reflects a dedication to the ideals embodied in GCCA and its purpose.”

Catoosa County Juvenile Court Administrator Tammy Hardin received this

year’s award for her nearly twenty years of service to Catoosa County and the

Lookout Mountain Judicial Circuit. Ms. Hardin joined GCCA in 1998 and earned

several certificates in judicial administration from GCCA and Michigan State

University. She is currently completing her Certified Court Manager Certificate

with the Institute for Court Management and the National Center or State

Courts. Judge McCracken Poston wrote in his nomination that Ms. Hardin

“handles the daily responsibilities of court administration with integrity and

fairness.” For all these and her other efforts to serve the citizens of Catoosa

County, GCCA presented Tammy Hardin with the 2018 Award of Merit.

Program of the Year

GCCA’s program of the year award was presented to the Georgia Supreme Court

Committee on Justice for Children Court Process Reporting System (CPRS),

CPRS provides daily information on the lives of children in foster care to

juvenile court judges, attorneys and court-appointed special advocates. The

system is founded upon a data-sharing partnership between the Judicial

Council’s Administrative Office of the Courts and the Division of Family and

Children Services. Not only does the system help children by providing up-to-

date information to decisionmakers, it allows DFCS to claim millions in federal

reimbursement dollars for state foster care costs.

President

Tracy B. Johnson

President-Elect

Jeff West

Vice President

Stephanie Hines

Immediate Past President

Yolanda L. Lewis

Treasurer

Lynn Ansley

Secretary

Colin Slay

Board Members:

Christopher Hansard

Joshua Weeks

Kimberly Ciccaglione

Laura Murphree

Robin Rooks

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