Legislators may resolve conflict over chief Superior Court judge job

John Allen decides not to retire after Frank Jordan questions new process

tchitwood@ledger-enquirer.comSeptember 29, 2012 

A spat over who's to be the next chief judge of the six-county Chattahoochee Judicial Circuit that includes Columbus may go to the Georgia General Assembly.

The dispute pits Superior Court Judge Frank Jordan Jr. against his five colleagues on the bench, particularly John Allen, the circuit's current chief judge, who had planned to retire from that position at the end of this year.

Because of the conflict, Allen has changed his mind, electing to stay on as chief judge until the issue can be clarified or otherwise resolved, possibly through amended legislation introduced in the 2013 General Assembly session.

Traditionally the Superior Court judge who has served the longest becomes the chief, and that puts Jordan next in line after Allen leaves the job. The chief judge receives no additional compensation, Allen said.

But in 2010, the circuit judges decided that every two years they would choose the chief judge through a secret-ballot vote, and this year everyone but Jordan voted for Gil McBride.

McBride is fourth in seniority, having taken office in 2009. By seniority, the current judges came to the bench in this order: Allen on Oct. 27, 1993; Jordan on July 14, 2000; Bobby Peters on Jan. 1, 2005; McBride on Jan. 1, 2009; William Rumer on Aug. 18, 2010; and Arthur Smith on Dec. 16, 2011.

McBride was elected to succeed Allen during a vote that was reported in the Ledger-Enquirer's "Chattahoochee Chatter" column on Aug. 22.

Jordan cited that article in a Sept. 14 letter to Georgia Attorney General Sam Olens, seeking an opinion on whether choosing a chief other than the most senior judge is against the law.

Jordan argued that local legislation creating a sixth judge for the circuit in 2000 cited seniority as the standard for choosing the chief judge:

"Specifically, the law states 'the judge of said circuit who is senior in point of continuous service as superior court judge shall be the chief judge. In the event that none of said judges shall be senior in point of continuous service as superior court judge, the judge who was first admitted to State Bar of Georgia shall be chief judge."

Under the circumstances of Allen's vacating the job and McBride's election to succeed him, the circuit could have had three possible chief judges: Allen, who was the senior judge but stepped aside; Jordan, who was next in seniority after Allen; and McBride, who by a legally questionable method was elected chief judge, Jordan wrote.

Backing Jordan in seeking Olens' opinion was Robert Wadkins, head of the circuit's public defender office.

"My sole reason for requesting an opinion on this matter is that we handle several thousand defendants charged with felonies each year," Wadkins wrote.

"The chief judge of the circuit is by law mandated to perform certain functions and appointments that cannot be delegated…. For example, the chief judge is mandated to act upon many jury matters from the grand jury on through the traverse juries. My concern on that score is whether these juries will be legally constituted and whether we will be forced to make demurrers and face ineffective assistance challenges caused by what appears to be a contravention of the law."

Wadkins' letter is dated Sept. 24. By then Olens already had responded to Jordan, in a Sept. 19 letter telling the judge the attorney general's office would not get involved in an "internal administrative procedure of a judicial branch entity."

But Olens went on to say the state Supreme Court has stated in its Uniform Superior Court Rules that court policies "in case of conflict shall yield to substantive law," and the substantive law regarding the selection of the chief judge is what the General Assembly passed in 2000.

"I think the attorney general's opinion speaks for itself," Jordan said Friday.

Jordan said the apparent conflict in the election procedure and the 2000 law is his sole objection: "My concern was with the validity of any action that a chief judge took who had not been properly elected or appointed or constituted," he said.

Allen has maintained that under the state's Uniform Superior Court Rules -- an administrative policy guide for the court system -- the circuit is free to adopt internal operating procedures such as a method of choosing the chief judge. The only requirement is that such procedures be filed for review with the Georgia Supreme Court.

The circuit filed its procedure in 2010 and got an OK from the high court in a letter dated April 29, 2010.

The Supreme Court is the ultimate authority on such matters, Allen said: "They are the source of last appeal."

But instead of letting the dispute play out, Allen chose to stay on as chief judge. In a letter to his colleagues -- dated Sept. 18, a day before Olens' response to Jordan and nearly a week before Wadkins wrote the attorney general -- Allen wrote: "I state, emphatically, that I defer only to an elective process for and to the role of Chief Judge! Under no circumstances do I abdicate, absent an elective process, my duty to act as Chief Judge. In such occasion I will serve until voted out of office."

Besides staying on as chief, he has contacted state legislators about changing the local legislation, amending it to say the senior judge in this circuit becomes chief judge unless the judges choose another selection process. That would affect no other state judicial circuit, he said.

Like Jordan, Wadkins said he is concerned only with the apparent conflict in the election procedure and the law. Changing the law to fit the procedure should allay his worries, he said.

Said Jordan: "I would agree that that would be the only way the statute could be changed."

The principal duties of the chief judge are administrative, particularly in scheduling judges and court sessions for the counties. Allen said he does that a year in advance for the circuit that besides Muscogee includes the counties of Chattahoochee, Harris, Marion, Talbot and Taylor.

McBride said Friday that he has no objections to Allen's staying on as chief until the conflict's resolved, and he believes any of the current judges would make a good chief judge. But he also believes the days of having just one tenured judge hold the position for the remainder of his or her career are gone.

With limited resources and increasing caseloads, courts today must maintain a focus on efficiency, he said.

"We've been very well served under the current system, but you're looking at a situation where the position is more administrative than it used to be," he said.

"There's certainly an aspect of dignity and prestige to the position, but there's a considerable amount of administrative work to it also. And that's why I really think the modern trend is to rotate it. We are decision-makers by trade, and I think that's certainly a decision we should be able to make, rather than just default to seniority or to some other arbitrary principle."

A set term of two years for the chief judge provides a "periodic accountability check" and allows the judge serving as chief to be relieved of the extra duties, he said.

"I think the day and age where you're sort of the last man standing and then you get it by default and then you hold it till they carry you out feet-first is pretty much gone," McBride said. "That's sort of a relic of a bygone age that I do not see coming back."

Staff writer Jim Mustian contributed to this report.

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