McCorkle v. Judges of Superior Court

392 S.E.2d 707, 260 Ga. 315

• Court: Supreme Court of Georgia
• Decided: June 21, 1990
• Docket: S90A0134
• Status: Published

Opinions

Clarke, Chief Justice.

This is an appeal from an order issued jointly by all of the judges of the Superior Court of Chatham County directing the Commissioners of Chatham County (“Commissioners”) to continue funding for two clerical positions in the Superior Court. For the reasons that follow, we dismiss the appeal.

In August 1989, the four judges of the Superior Court of Chat-ham County jointly issued an order to show cause why the Commissioners should not be required to continue funding for two clerical positions of the Superior Court. The Commissioners responded by filing a motion to recuse, and an affidavit and memorandum of law regarding county budget cuts. The Commissioners also requested a jury trial. Without holding an evidentiary hearing, the en banc Superior Court denied the motion to recuse and issued an order requiring the Board to continue funding the two clerical positions. The order contains extensive findings of fact, including the determination that the clerical positions are essential or necessary for the continued operation of the court. The Commissioners appeal, asserting that the judges should have granted the motion to recuse, should have followed the procedure for mandamus, and should have afforded them a jury trial. They also assert that the Superior Court incorrectly decided that there is a “compelling need” for the two positions.

In Grimsley v. Twiggs County, 249 Ga. 632 (292 SE2d 675) (1982), we acknowledged that the judiciary, as an independent and co-equal branch of government, must possess power that is concomitant with its duty to the public. See also Miree v. United States, 242 Ga. 126, 132 (249 SE2d 573) (1978). (“Our powers are equal to our duties.”) That power includes the “. . . ‘inherent power to determine and compel payment of those sums of money which are reasonable and necessary to carry out its mandated responsibilities. . . .’ ” Grimsley, supra at 633, quoting Commonwealth v. Tate, 274 A2d 193, 197 (Pa. 1971). We again speak a word of caution that the inherent power does not give the judicial branch the right to invade the province of another branch of government. As a principle flowing from the separation of powers doctrine, it arms the judicial branch with authority to prevent another branch from invading its province. The inherent power is not a sword but a shield.

The real issue in this case, however, is not the existence or nature of the court’s inherent power, but rather, the procedure by which that power may be exercised. Fortunately, this court is not writing on a blank tablet with regard to the proper procedure for the court to protect its functions. OCGA § 15-6-24 constitutes “legislative recognition of the power which the judicial branch must possess ...” and functions as a “procedural rule which identifies a remedy.” Grimsley, supra at 634. The statute states:

Any contingent expenses incurred in holding any session of the superior court, including lights, fuel, stationery, rent, publication of grand jury presentments when ordered published, and similar items, such as taking down testimony in felony cases, etc. shall be paid out of the county treasury of such county upon the certificate of the judge of the superior court and without further order.

(Emphasis supplied.) OCGA § 15-6-24. Thus, a superior court judge need not issue an order to show cause or any other order before making administrative decisions about the basic needs of the court as to equipment, facilities or supporting personnel. All that is necessary is to issue a certificate approving the expense. Such certificates, which may approve on-going expenses or payment for services rendered, represent the judge’s or judges’ administrative decision. In making that decision, the judge or judges must be guided by the public interest and a spirit of cooperation among the branches of government. Grimsley, supra. However, the certificates are not a judgment in a case. They are not supported by a record or findings of fact. As such they are not reviewable by appeal. In so holding we specifically overrule any suggestion to the contrary found in Walden v. Smith, 203 Ga. 207 (45 SE2d 660) (1947).

This does not mean that certificates approving expense are unreviewable. We have often reviewed matters involving the expense of courts through an appeal from a mandamus action filed by the party to whom the money was due. See, e.g., Grimsley, supra; Bibb County v. Hancock, 211 Ga. 429 (86 SE2d 511) (1955); and Walden v. Smith, supra. Review may also be available through the filing by the county of a protest to the certificate. Such protest shall state the grounds for objection so as to frame the issue of whether the court had exceeded the limits of its inherent power. The protest should be treated as being in the nature of an action in equity, tried without a jury. If a motion to recuse is filed, the matter would be heard by a judge from another circuit in the same judicial administrative district designated by the administrative judge of the district.

To preserve the orderly conduct of the business of the court and governing authority of the county, any such protest in this case must be filed within 30 days of the return of the remittitur. In future cases, the protest must be filed within 30 days of service of the court’s certificate.

Finally, we construe the “order” issued by the Superior Court of Chatham County as a certificate under OCGA § 15-6-24. As such, it is not directly appealable. This appeal is therefore dismissed without prejudice to the county’s right to file a protest.

Appeal dismissed.

All the Justices concur.