Heiskell v. Roberts

• Decision Date: 06 October 2014
• Docket Number: No. S14A0779.,S14A0779.
• Citation: 295 Ga. 795,764 S.E.2d 368
• Court: Georgia Supreme Court
• Parties: HEISKELL, Comr., et al. v. ROBERTS.

295 Ga. 795

764 S.E.2d 368

HEISKELL, Comr., et al.

v.ROBERTS.

No. S14A0779.

Supreme Court of Georgia.

Oct. 6, 2014.

William D. Cunningham, Benjamin T. Bradford, Donald Fredrick Oliver, LaFayette, GA, for Appellants.

Archibald A. Farrar Jr., Farrar & Corbin, P.C., Summerville, for Appellee.

James F. Grubiak, G. Joseph Scheuer, Atlanta, GA, amici curiae.

Opinion

NAHMIAS, Justice.

Bruce Roberts filed suit against Walker County and its sole commissioner, Bebe Heiskell (collectively, “Appellants”), claiming that the county underpaid him for the 15 months that he served as judge of the State Court of Walker County. Appellants denied any underpayment, denied Roberts's request to pay his legal fees in connection with the case, and filed counterclaims alleging among other things that the county actually overpaid Roberts each month and was entitled to reimbursement for the overpayments. On cross-motions for summary judgment, the trial court granted Roberts's mandamus claim and ordered the county to pay him $78,878.55 in unpaid salary; dismissed Appellants' counterclaims as barred by judicial immunity; and ordered the county to pay Roberts's attorney fees.

As explained below, the trial court erred in granting summary judgment on the mandamus claim to Roberts instead of to Appellants, in dismissing Appellants' counterclaim for reimbursement, and in granting attorney fees to Roberts based on these erroneous rulings. However, the trial court properly dismissed Appellants' other counterclaims based on judicial immunity and correctly ruled that the county could be required to pay attorney fees to Roberts under OCGA § 9–15–14 based on the dismissed counterclaims. Accordingly, we affirm the trial court's judgment in part and reverse it in part, and we remand the case for the entry of a more limited attorney fees award and to allow Appellants the opportunity to pursue their counterclaim for reimbursement.

1. In 2010, Judge C. Donald Peppers, Sr., of the State Court of Walker County was reelected to a four-year term of office that started on January 1, 2011. Effective June 30, 2011, Judge Peppers retired after 26 years in office; at the time he retired, he was allegedly making $172,102.80 per year, although a portion of his salary was reimbursed by Catoosa County for his service as a part-time judge in that neighboring county. On September 16, 2011, Governor Nathan Deal announced that he would appoint Bruce Roberts to fill the vacancy.

On September 30, 2011, Roberts met with Bebe Heiskell, Walker County's sole commissioner. Heiskell informed Roberts that the base salary for the state court judge position was $60,000 per year, see Ga. L.1994, p. 3726, § 1, but she allegedly offered to pay him at the rate of $100,000 per year, slightly more than the $94,000 that he was making in his previous job. Roberts requested $110,000, but Heiskell declined, citing budget constraints. Roberts was sworn into office on October 3, 2011. He stood for election in the next nonpartisan general election in July 2012, but he lost, meaning that his term of office would end on the last day of 2012. During the period following his defeat, Roberts dismissed about 60 traffic cases. The county paid Roberts at an annualized rate of $100,000 for the 15–month period that he held office.

On October 25, 2012, Roberts filed a complaint for mandamus and other relief against Commissioner Heiskell (in her official capacity) and Walker County. Roberts sought to recover the difference between what he was being paid and what Judge Peppers would have been paid for the same period based on the provision of Article VI, Section VII, Paragraph V of the Georgia Constitution of 1983 that says: “An incumbent's salary, allowance, or supplement shall not be decreased during the incumbent's term of office.” Roberts also asked for the county to provide him with legal representation, but the county did not do so. Appellants filed an answer and counterclaims for breach of contract, “intentional infliction of monetary damages,” and intentional infliction of emotional distress, all based on Roberts's dismissal of the traffic cases. Appellants later added a counterclaim seeking reimbursement of all salary paid to Roberts at an annualized rate greater than $60,000; the alleged overpayments totaled about $50,000.

Roberts filed a motion for summary judgment, and Appellants filed a cross-motion for partial summary judgment. After a hearing, the trial court entered an order on October 30, 2013, granting Roberts's mandamus claim and directing Commissioner Heiskell to pay him $78,878.55 from county funds for “salary due and unpaid,” dismissing Appellants' counterclaims as barred by judicial immunity, and requiring Appellants to pay Roberts's attorney fees based in part on Gwinnett County v. Yates, 265 Ga. 504, 458 S.E.2d 791 (1995), and in part on OCGA § 9–15–14.¹ The court also dismissed Walker County as a defendant with respect to Roberts's mandamus claim, but left the county as a defendant on Roberts's claim for attorney fees based on Appellants' counterclaims. Appellants filed a timely notice of appeal.²

2. Citing cases involving magistrate judges, the trial court held that Roberts was entitled to the same compensation that Judge Peppers was receiving because Roberts was appointed to the “unexpired term” of Judge Peppers that began on January 1, 2011, and ended on December 31, 2014. In the trial court's view, Roberts's appointment allowed him to serve the portion of Judge Peppers's four-year term that ran from the date that Roberts was sworn in, October 3, 2011, through the end of 2012, with the requirement that he run in and win the July 2012 election in order to serve the portion of Judge Peppers's term that ran from January 1, 2013, through the end of 2014. That is not, however, the scheme that the 1983 Georgia Constitution established for the terms of office for judges appointed to fill vacancies on our appellate, superior, and state courts.

This case is controlled by several provisions of Section VII (“Selection, Term, Compensation, and Discipline of Judges”) of Article VI (“Judicial Branch”) of the 1983 Constitution. Paragraph I of the section says:

All superior court and state court judges shall be elected on a nonpartisan basis for a term of four years. All Justices of the Supreme Court and the Judges of the Court of Appeals shall be elected on a nonpartisan basis for a term of six years. The terms of all judges thus elected shall begin the next January 1 after their election....

Paragraph III says that vacancies in these judicial offices will be filled by gubernatorial appointment, and Paragraph IV then says that such an appointee “shall serve until a successor is duly selected and qualified and until January 1 of the year following the next general election which is more than six months after such person's appointment.”

The effect of these provisions is to create an entirely new and shortened initial term of office for the appointed judge. Unlike persons appointed to fill vacancies in most other public offices, appointees to state, superior, and appellate judgeships do not serve out the “unexpired term” of their predecessors.³ Rather, these judicial appointees must be elected before being entitled to serve a full four- or six-year term, although they are given at least six months to serve before they have to stand for election. As this Court explained in Perdue v. Palmour, 278 Ga. 217, 600 S.E.2d 370 (2004) :

“The Constitution does not provide uniformly for the term of an appointee when a vacancy is filled [on these courts].... The appointee's term will be at least approximately eight months (to the next January 1), and not less than six months before he is required to run for a full term. Thus, on one side of the coin, someone appointed to fill a vacancy occurring at the beginning of a six-year term will not be immune from voter consideration for that entire period; he would have to run in the next general election. On the other side of the coin, someone appointed between June and November of a general election year would not have to run immediately and would have a little over two years to demonstrate his qualifications as a judge.... This is a practical balance between democracy and stability.”

Id. at 220, 600 S.E.2d 370 (citation omitted).⁴

Thus, there is no longer such a thing as an appointment to serve out the “unexpired term” of an appellate, superior, or state court judge. See Palmour, 278 Ga. at 221, 600 S.E.2d 370 (Carley, J., concurring) (“[U]nlike the prior constitutional provisions ..., Art. VI, Sec. VII, Par. IV of the Georgia Constitution of 1983 eliminates the unexpired term of the vacant office....”). For an appointed state court judge, the “definite extent of time [his] elective office may be held,” Lee v. City of Villa Rica, 264 Ga. 606, 609, 449 S.E.2d 295 (1994) (defining “term of office” in this way), is not determined at all by his predecessor's term of office, and indeed cannot be determined until he is appointed and assumes the office.

Like the trial court, Roberts relies on cases involving the salaries of magistrate judges who were appointed to fill vacancies. See Pike County v. Callaway–Ingram, 292 Ga. 828, 742 S.E.2d 471 (2013) ; Lee v. Peach County Bd. of Comrs., 269 Ga. 380, 497 S.E.2d 562 (1998). This reliance is misplaced. The same Article and Section of the 1983 Constitution that abolished the old system for the selection and terms of office of appellate, superior, and state court judges explicitly preserved the then-existing system for “[a]ll other judges ... until otherwise provided by local law” and authorized the filling of “[v]acancies ... in the magistrate, probate, and juvenile courts” by methods other than gubernatorial appointment if “otherwise provided by law.” Art. VI, Sec. VII, Par. I and III. “[T]o implement certain changes required by Article VI of the [1983] Constitution,” Ga. L.1983, p. 884, § 1–1, the General Assembly enacted a law concerning...