Holy Cow This Is Going To Be So Fun

Michael, I appreciate the ambition and the zeal to get elected judge, but having now done my own legal research and consulted with both judges and lawyers on the matter, I do not believe you are eligible. Likewise, I suspect someone will probably challenge you.

As I know you are aware, the relevant statute is O.C.G.A. § 15-6-4, which states, “No person shall be judge of the superior courts unless, at the time of his election, he has attained the age of 30 years, has been a citizen of the state for three years, has practiced law for seven years, and has been duly reinstated to the practice of law in the event of his disbarment therefrom.”

Likewise, as the United States Supreme Court noted in Caminetti v. U.S., 242 U.S. 470 (1917), the plain meaning of a statute is the starting point for interpreting a statute. The Court held that “[i]t is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain… the sole function of the courts is to enforce it according to its terms.” Likewise, the Court noted that “the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion.”

In this case, there is a three part rule:

1. You must be at least 30 years old.
2. You must be a citizen of the state for three years.
3. You must have practiced law for seven years.

You have met the first.

I assume you have met the second.

That leaves the third. Again, based on the plain meaning, you must have practiced law for seven years. A year is a 365 day period, save leap years. For purposes of this, we can presume the common meaning of year instead of a leap year.

365 x 7 = 2555 days.

Now, as to your argument, I think it falls on its face. You talk about words in and not in the various code sections relating to service. The word I assume you mean is “at least.” The legislators must be citizens for “at least” two years. The Governor must be a “citizen of the United States for 15 years and a legal resident of the state six years preceding the election.”

The statute for your qualifications does not say “at least” 7 years or 7 years “preceding the election.” I think that is generally irrelevant because of the plain language of the statute saying you must practice law for seven years.

For the reasons below, I believe you do not meet the statutory qualifications for the position of Superior Court Judge and are therefore ineligible to be on the ballot.

(I note by the way, that this is my well researched and not legally binding opinion, but I think I’m right. This should not, however, be considered legal advice.)


First, the statute restricting Superior Court Judges to seven years of legal practice was enacted prior to the constitutional provisions relating to the General Assembly and Governor. That the later constitutional provisions sharpened the language on time periods under qualifications does not mean that the common meaning of “seven years” somehow can have a looser interpretation.

Next, you cite Gazan v. Heery, 187 S.E. 371, 183 Ga. 30 (1936). You note “It’s a rather long case but is still the law today and is an important part of the discussion.”

In Gazan, the facts are crucially important. Petitioner Garzan filed a quo warranto against Respondent Heery claiming Respondent was ineligible to serve as Chief Judge of the municipal court of Savannah. A 1915 law required

That there shall be a chief judge and two associate judges of said court, and each of the three judges of said court shall have all the power, authority, and jurisdiction that a justice of the peace now has under the laws of Georgia. Any attorney at law who is a resident of Chatham County, and who has practiced law continuously for one or more years, shall be eligible to hold office as associate judge of said court, but in addition to the foregoing qualifications, the chief judge of said court must have practiced law for five years or more. No such judge or chief judge shall hold any other public office of honor, trust, or profit or practice as an attorney or counsellor at law, but each judge of said court shall devote his whole time and capacity, so far as public interests demand, to the duties of his particular office as prescribed by law.

Respondent was admitted to the bar of Georgia in 1920 and became an associate judge of the municipal court in 1923. The law required, at that point, that he give up the practice of attorney. Respondent served in that position for ten years before being appointed by the Chatham County Board of Commissioners to the position of Chief Judge in 1935.

Petitioner argued that because Respondent had only served as a lawyer for three years, instead of five, before becoming a judge, Respondent could not be Chief Judge. The Court recognized that the plain meaning should govern, but determined that

An exception to the general rule just stated is presented by the use of words the meaning of which in general acceptation is apparently obvious, and yet the purpose of the legislature would be defeated were the words employed construed literally.

Garzan at 39.

In this case, the Court noted that the 1915 law used the phrase “practiced law” and the Court determined it would be an absurd result to say that a person who has, as his sole occupation for ten years, served a judge, had not been engaged in “the practice of law” and somehow lacked experience.1

The purpose of section 6 of the statute creating the municipal court of Savannah was not to place an arbitrary and technical barrier against a person who might possess in reality the knowledge, training, experience, and soundness of judgment such as would qualify him to fill the office of chief judge of the municipal court. Words limiting the right of a person to hold office are to be given a liberal construction in favor of those seeking to hold office, in order that the public may have the benefit ochoice from all those who are in fact and in law qualified. Judges all “practice” law.

Id. at 42.

Part of that last passage sounds like it gives Michael a plausible case, but an examination of the facts in Garzan obliterate that plausible case. The Court notes that in 1915 there was no legal definition of the practice of law. Quoting Boykin v. Hopkins, 174 Ga. 511, the Court noted,

no statute was passed in this State, which undertook to define the practice of law, prior to the above act of August 7, 1931; and to determine what constituted the practice of law prior to the passage of that act we must look to the general law of force in this State at that time.

Id. at 36.

In fact, the situation at hand is quite different. What it meant to practice law in 1915 or even 1931 when the definition was first codified.

For today’s purposes, the practice of law is codified at § 15-19-50, which defines the practice of law as:

(1) Representing litigants in court and preparing pleadings and other papers incident to any action or special proceedings in any court or other judicial body;

(2) Conveyancing;

(3) The preparation of legal instruments of all kinds whereby a legal right is secured;

(4) The rendering of opinions as to the validity or invalidity of titles to real or personal property;

(5) The giving of any legal advice; and

(6) Any action taken for others in any matter connected with the law.

Now, you would no doubt note that you have done these things under the Third Year Practice act. As your friend David Farnham said in the comments

Michael did practice law as a third year law student beginning in May 2001. He worked on cases pro bono for indigents who could not afford lawyers and he handled all types of cases, including civil rights, consumer rights, contract disputes, post conviction work, etc. He was supervised by licensed attorneys.

Between that and the definition of the practice of law, it sounds quite compelling, except for O.C.G.A. § 15-19-51, which says it is “unlawful for any person other than a duly licensed attorney at law . . . to render or furnish legal services or advice.”

Go back to Garzan for a minute. In that case, the Court noted that Respondent had been, from 1921 to 1935 giving legal advice and it was only in 1931 that the “practice of law” was codified to mean practice by an attorney. So, for ten years, Respondent had done what amounted to the practice of law by giving legal advice in the form of judicial opinions, until the legislature defined the practice of law to be something attorneys, not judges, do.

Likewise, under the Third Year Practice, Rule 91 of the Rules of the Supreme Court of Georgia, a third year student, under supervision, “may assist in proceedings within this state as if admitted and licensed to practice law in this state.” [Emphasis added]

If we’re to by your argument that “[w]ords, whether included or excluded by the legislature in a statute, have always been held to be very significant by our courts” then we should, no doubt, consider the words “may assist” and “as if” pretty darn significant in the Third Year Practice rules.

But the key, of course, and the real determining factor, comes down to the Rules Governing Admission to the Practice of Law in Georgia. In order to be eligible to practice law, a person must, in order:

1. Have been awarded a bachelor’s degree.
2. Have been awarded a JD or LLB.
3. File an application for Certificate of Fitness to Practice Law.
4. Received that certificate.
5. Filed a bar exam application.
6. Taken and passed the bar exam application
7. Take and passed the MPRE.

So, to emphasize, in order to be admitted to practice law in the State of Georgia, you must have graduated from law school; therefore, the third year practice is meaningless.

We begin then with the year 2002, your graduation date. From there, we must look to your admission to the bar, a necessary precursor to practicing law under the laws of the State of Georgia. That was October 30, 2002.

The law says you must practice for seven years before becoming a Superior Court Judge1.

In common usage, if you are born on June 3, 1975, as I was, and you have your birthday on June 3, 1981, you are, for purposes of common sense and logic, 6 years old on June 30, 1981. You do not have your seventh birthday party until the seventh anniversary of your birth in 1982.

It is nonsensical in the common understanding of the phrase “seven years” to say six years plus a few days somehow equals seven years.

Based on the foregoing, you are ineligible to run for the Superior Court and should be disqualified.


  1. There was an ancillary issue involved in the reasoning behind the statute. The municipal court in Savannah was designed to replace a corrupt system of justices of the peace. The legislature in 1915 determined that real attorneys were the best way to clean up the system because the law was their occupation, not a part time job.

  2. I am ignoring the issue of you being appointed as a judge in the Recorder Court of DeKalb County because it is not relevant to the discussion. The Recorder Court has limited jurisdiction and will not handle any criminal felony cases, child custody matters, property disputes, or divorce matters, all of which are exclusive to the Superior Courts of the State of Georgia. While I understand that you think this adds to your experience, it does not add to the statutory qualifications necessary to become a Superior Court Judge.

21 comments

  1. Bill Simon says:

    Cogito, ergo sum. Habeas corpus. Whereuntofore. Hereuntofore. Whereas. Magna Carta. Trial de novo.

    Or, to put it quite succinctly, in a non-personal way since I do not have anything against Mr. Rothenberg, I’d say his eligibility to run for this judge position is “Alpha Michael Foxtrot.”

    Yes, even though the latter is a non sequiter to the former. Generally speaking. Sotto voce, so to speak.

  2. Doug Deal says:

    Erick, the one weakness in your argument is

    Likewise, under the Third Year Practice, Rule 91 of the Rules of the Supreme Court of Georgia, a third year student, under supervision, “may assist in proceedings within this state as if admitted and licensed to practice law in this state.” [Emphasis added]

    The meat of the rule does not state “…as if practicing law…”, thereby distancing and separating the third year student from being in practice, it says “…as if licensed…” which is much more inclusionary.

    If the third year PRACTICE rule entitles one to the rights and privileges that comes with having a license (with appropriate supervision), one has to ask what does the license entitle you to. The license itself entitles you to practice law. Thus, it entitles the third year law student to the same (with supervision).

    I do not think this is settled law, and it should be challenged. If the legislature wanted it to be 7 years from the date of admittance to the bar, they should have said such, in so many words.

    I am not an attorney, but I play one on TVblogs.

  3. LymanHall says:

    I agree that seven years means seven years, but…
    I have one question about this analysis relating to the statutory definition of practicing law. Since “judging” tasks are not included in the code section, what happens to someone who practices law for 5 years, becomes a State Court Judge, and later (well after the 7 years), seeks to become a Superior Court judge. Has she only “practiced law” for 5 years since her time as a State Court judge would not be “practicing law” under the statutory definition? Surely the State Court judge in this hypo shouldn’t be excluded.
    Also, the purpose of the statutory definition of law practice is more defensive than offensive. Its purpose is to exclude certain tasks as the unauthorized practice of law, not to exhaustively enumerate all lawyering tasks.
    This is also not a legal opinion (I don’t want to ilegally practice law!)

  4. Erick says:

    Doug, not quite.

    In Georgia, one must be (a) admitted and (b) licensed to practice law.

    Therefore “as if admitted and licensed to practice law” means pretty clearly there is a recognition that the person cannot actually practice law, but can, in fact, work in a legal apprenticeship.

  5. DoubleDawg3 says:

    Very well written, Erick. Thank you for taking the time to put all that information together for us. While I wish Mr. Rothenberg the best, as I stated yesterday I too believe he’s going to be ineligible.

    I specifically seem to remember an oldGA Professional Responsibility BarBri lecture – Charles Adams was the lecturer, I believe – harping away that even if you were “practicing” under 3rd year practice, your work was still being supervised by a licensed attorney and in reality, it was the attorney that was putting his/her name on the product. Thus, until you pass the bar exam and complete the other requirements you mentioned, you are not an actual “attorney.”

  6. Rogue109 says:

    Simply outstanding presentation, Erick! On the flip side, all Michael seems capable of doing is (1) telling us about all his conflicts and vacations which keep him from giving us an idea of his massive “research” and (2) telling us that “the legal argument is rather lengthy.”

    His goose is cooked. And I agree with Bill Simon that his status is now “Alpha Michael Foxtrot.” Adios, dude!

    Maybe the Chief Judge of the Recorder’s Court of DeKalb County will note that one of her part-time Judges can’t seem to interpret nor comprehend codified law and take that into consideration in permitting him to take the bench in future.

  7. Taft Republican says:

    My God. This is why NO lawyer should be permitted to be a judge. And why Dick The Butcher was right.

  8. Doug Deal says:

    Erick,

    The state of Georgia also already recognizes the third year practice rule for attornies in determining their experience for pay purposes.

    You are also comparing two different provisions. One sets up the general case, and another is an exception to the general case. If the third year law student was not indeed practicing law, there would be absoultely no reason to have the exception for third year students. Unless of course it is the practice of government to promulgate regulation, police and statute that have null effect.

  9. Dave Bearse says:

    It’s another law that generates attorney fees and uses judicial resources without accomplishing anything productive. What’d you expect from a law written by lawyer-citizens of the General Assembly?

  10. Groseclose says:

    Great analysis Erick.

    I would assume Mr. Rothenberg completed his third year practice in Texas, where he apparently graduated from law school. Therefore, would it be relevant whether Texas considered third year pracitce “practic[ing] law”? Not an expert on conflict of laws, but I think it might be relevant since practicing law IN GEORGIA is not a requirement under this particular statute, in contrast to the DA qualification statute.

  11. BStallings says:

    I’ve been reading these postings for the last few days and Im just amazed. I am not a lawyer, as I suspect most of you aren’t. I dont know the candidate. So I asked some lawyer friends of mine who practice in that area. To a person, they said Rothenberg is an outstanding lawyer, very bright, respected by both sides. One of my friends was actually in his court a few times. They say he runs a tough efficient court.

    OK – so you may not agree with his legal reasoning on this issue. First, he doesn’t owe us on this blog a damn thing. Second, I am all for free speech, healthy debating etc but personally attacking a guy is simply juvenile. Real honest differences of opinion are lowered when it gets personal and people take glee in tearing someone down.

    Its great that we debate an issue like the law, which has many sides to it. Everyone is allowed to put forth their view and until a court says so, we shouldnt jump all over people. All that does is marginalize the importance of a blog like this.

    my 2 cents.

  12. Rogue109 says:

    BStallings:

    To a person, they said Rothenberg is an outstanding lawyer, very bright, respected by both sides. One of my friends was actually in his court a few times. They say he runs a tough efficient court.

    So what? That’s nice and all, but do those facts excuse the possibility of an illegal candidacy?

    I am all for free speech, healthy debating etc but personally attacking a guy is simply juvenile.

    That’s good to know. We’ll keep this in mind in case someone starts to personally attack him. Since that isn’t the case here, and because you can’t point to any personal attacks, I’m sure you aren’t talking about any PP posts.

    Its great that we debate an issue like the law, which has many sides to it. Everyone is allowed to put forth their view and until a court says so, we shouldnt jump all over people.

    Geez, guy. If Michael can’t handle some comments on a blog, you really think he’ll be boffo on the Superior Court bench?

  13. Erick says:

    If the third year law student was not indeed practicing law, there would be absoultely no reason to have the exception for third year students.

    Doug, the state does not consider third year law students to be practicing law.

    In fact, the legislature found that, well, according to O.C.G.A. § 15-18-22:

    With the increasing docket in criminal matters, it is in the public interest to provide legal assistance to district attorneys and, in connection therewith, to utilize the services of third-year law students and staff instructors in criminal proceedings as a form of legal intern training which will promote the efficiency of criminal proceedings.

    The statute is very clear that it is “legal intern training” and not the “practice of law.”

    In fact:

    (a) It only applies to third year students helping prosecuting attorneys in criminal proceedings;

    (b) The law student cannot go to court with a district attorney “physically present”; and

    (c) The law student is not allowed to sign any legal documents.

    The fact that the law student cannot sign legal documents is a pretty good indicator that the law student is not, in fact, practicing law, but is, instead, going through legal intern training.

  14. Doug Deal says:

    Erick,

    Courts usually apply the most liberal interpretation to election qualification laws because voters can always vote against someone who is in doubt, but they have no options if the candidate is excluded.

    Under this type of review, if there is any doubt as to the clarity of the legislative intent, they will choose the path that results in the least punitive (for lack of a better word) remedy.

    I may be misremembering this, but what an intern doctor does is still called practicing medicine (some programs now call interns “first year residents”.)

    You may very well be right, in the end, but it if far from a certainty, which is the point that I am making.

    Your arguments create a legal limbo for third year law students. In you view, they are nothing more than a legal secretary, which is a role that any schmuck can fulfill with no law school at all. If that is the case, why have any provision in law at all?

    You have the advantage of not travelling and can do more research , but I will file my brief on Monday.

  15. DoubleDawg3 says:

    BStallings – I couldn’t agree more. I’ve already traveled down that road though and received the same response from Rogue that you’ve received tonight.

    Nothing personal, but there are some people on here ( hint, hint) that very much remind me of people I went to law school with, in that they have to have something to say about everything…to jump at the chance to give a “cute” little response whenever they have the chance to attempt to show that they are a little more witty than you are. Honestly I don’t get it, I suppose there’s just different types of people in this world.

    That’s the problem with blogs like this…the people that are the most hardcore seem to be the ones that love to criticize and bring people down – they’re mostly complete cynics, at the worst extreme. I always get a laugh at how wrong they often are in the long run….I seem to recall, very, very clearly all the attacks on Chip Rogers back in the day – look at what a great legislator and leader he is today (arguably our state’s best).

  16. DoubleDawg3 says:

    Mr. Simon,

    To answer your question…I’d suggest that most 5th year paralegals know far more about the legal process and procedures and black letter law than a 3rd year law student. Assuming that the paralegal is working at a reputable law firm.

    It’s likely that the 3rd year law student has higher overall intellectual capability to grasp the overall concept and thought process, but the paralegal is likely much more versed in the law due to the practical experience.

    At least that’s been my experience.

  17. DoubleDawg3 says:

    Actually I take that back…it SHOULD be the case that the 3rd year law student has “higher overall intellectual capability”…but given the fact that the ABA continues to accredit law school after law school, and those schools admit anyone willing to pay $35,000+ in tuition each year, I’m not sure that’s actually true anymore.

    Plus, I’ve seen some damn good paralegals that would make great attorneys if they wanted to.

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