ENOTAH JUDICIAL CIRCUIT
INTERNAL OPERATING PROCEDURES
FOR THE SUPERIOR COURTS
Pursuant to Uniform Superior Court Rule 1.2(C), the Internal Operating Procedures for the Superior Courts of the Enotah Judicial Circuit, adopted September 1, 1993, are hereby revised. These Procedures, identified as IOP, are to be correlated with the same numbered Uniform Superior Court Rule as well as any other applicable Uniform Superior Court Rule. Should there be any inconsistency with the matters herein addressed, and the Georgia Civil Practice Act or general laws of this State, or the Uniform Superior Court Rules or any directive of the Supreme Court of Georgia, such Act, law, Rule, or directive shall control.
U.S.C. Rule 1 - Juror Selection Excusal
The Superior Courts of this Circuit have adopted local rules pursuant to U.S.C.R. Rule 1 D), relating to the drawing of jurors by mechanical or electronic means and established guidelines governing excusal from jury duty as follows:
(A) Lumpkin County Jury Rule adopted April 24, 1998, recorded in Minute Book BPA26, page 186 et seq., of the records of the Clerk of the Superior Court of Lumpkin County.
(B) Towns County Jury Rule adopted May 1, 1998, recorded in Minute Book I-1, page 146 et seq., of the records of the Clerk of the Superior Court of Towns County.
(C) Union County Jury Rule adopted April 24, 1998, recorded in Minute Book 69, page 812 et seq., of the records of the Clerk of the Superior Court of Union County.
(D) White County Jury Rule adopted April 24, 1998, recorded in Minute Book CVM322, page 298 et seq., of the records of the Clerk of the Superior Court of White County.
U.S.C. Rule 5 - Discovery in Civil Actions
IOP 5.1 Standing Procedure Relating to the Use of Video Tape Evidence in Court Proceedings. Any party may present video taped evidence or a deposition for use in Court proceedings pending before this Court without prior leave of Court if said evidence or deposition is obtained in conformity with the provisions of this Procedure and otherwise meets the requirements of Georgia law.
IOP 5.2 The deposition may be scheduled by notice or agreement. If scheduled by notice, said notice shall be in conformity with the provisions of the Georgia Civil Practice Act.
IOP 5.3 The party obtaining the video deposition shall use equipment of sufficient quality and quantity to produce an accurate and trustworthy record and to record all voices participating in the deposition. Only one camera shall be used unless a mechanical failure necessitates the use of another camera.
IOP 5.4 In addition to utilizing the video tape equipment, such depositions shall be transcribed in the traditional method of stenographic transcription by one authorized to do so by law at the cost of the party obtaining the deposition.
IOP 5.5 With respect to the stenographic transcription, the original shall be filed in the office of the Clerk of this Court and copies made available to counsel on their order and at their cost.
IOP 5.6 The party taking the deposition by video or otherwise having a deposition video taped shall supply a person or persons to operate and monitor the video tape equipment during the entire deposition, who will not be participating in the actual interrogation process, and who shall take an oath or affirmation to accurately and in a trustworthy manner video tape the deposition and see that the original video tape is not altered or edited in any fashion until further order of this Court or by agreement of counsel for all parties. Such person or persons shall, on the date of the deposition, video tape all of the proceedings requested by either counsel.
IOP 5.7 An oath or affirmation shall be administered to the witness by a person authorized to do so by law.
IOP 5.8 The person operating the video camera shall adjust the camera and lighting upon the person being deposed so as to place the upper torso of the witness in the format of the camera and shall refrain from changing the angle, closeness of the view or lighting except upon the occurrence of one of the following conditions: (1) all attorneys of record agree on the record that a certain change by made; or, (2) that due to the witnesses reference to a chart, evidence or illustration, it becomes necessary to move the camera to depict the chart, evidence or other illustration; or, (3) that due to the natural movement, leaning or slumping of the person being deposed, it becomes necessary to move the camera slightly to maintain the picture.
IOP 5.9 The person operating the video camera shall not zoom in or out during a deposition except as is necessary to depict an item, illustration or other evidence being referred to by the witness. Thereafter the camera shall be returned to the witness in the same manner and distance as previously maintained. At all times the camera shall be on a tripod or similar devise and shall not be "hand-held" unless otherwise directed by Court Order or otherwise agreed upon by all attorneys.
IOP 5.10 If for any reason not fully agreed upon on the record there is an interruption of the continuous tape exposure for the purpose of off-the-record discussions, mechanical failure of the machine or other similar technical problems, it shall be the duty of the person recording the deposition stenographically to accurately record all discussions or statements during such occurrences.
IOP 5.11 If during the course of any deposition it becomes necessary or desirable to have an earlier question and/or answer or any other portion of the record of the deposition re-read, this shall not be accomplished by rewinding or exhibiting the video tape, unless counsel for all parties agree otherwise, but instead shall be accomplished by requesting the person recording the deposition stenographically to read from the stenographic record.
IOP 5.12 Objections except as to the form of the question or the responsiveness of the answer which might be raised during the deposition shall be reserved until brought before the Court on written motion. The party making an objection shall register it by saying only "objection to the question as leading" or "object to the responsiveness of the answer." Argument or prolonged statement of objections shall not be permitted.
IOP 5.13 In all instances where video depositions have been obtained and the written transcript thereof has been received prior to pretrial, any attorney of record shall present all objections in writing to the Court and all attorneys, by reference to the written transcript no later than ten (10) days prior to pretrial. All attorneys making response to said objections shall make response in writing within five (5) days prior to pretrial.
IOP 5.14 In instances where video depositions are obtained after pretrial but before trial, any attorney of record shall present all objections in writing to the Court and all attorneys, by reference to the written transcript no later than ten (10) days prior to trial. All attorneys of record who wish to make response shall do so in writing within five (5) days of their receipt of the written objections. Failure to object pursuant to these Rules (without good cause shown) will result in the Court considering the objections as waived.
IOP 5.15 In the event it becomes necessary for the Court to make an advance ruling on any aspect of a video deposition or other video presentation, the party expecting to offer said evidence shall be responsible for bringing all equipment necessary for the Court to view the evidence being offered without delay and disruption to the Court.
IOP 5.16 Any party presenting video taped evidence in a Court proceeding shall have available proper equipment and a properly trained operator to conveniently arrange for the Court to both view and hear any segment of tape on which the Court might have to rule without the necessity of removing the jury from the courtroom should the Court choose to do so. (REV.5/99)
IOP 5.17 Smoking will not be permitted during a deposition due to possible interference with the visual representation.
IOP 5.18 In the event either party were to present a video deposition or other evidence by video in a Court proceeding, it shall be the responsibility of the person offering the video tape to provide sufficient equipment and an operator thereof who is not otherwise participating in the proceedings to assure the Court that the attorneys, jury and Court can conveniently see the presentation. It shall be the financial and logistical responsibility of the party offering the video tape to present the same promptly without unreasonable disruption or delay of the Court proceedings.
IOP 5.19 The party obtaining video depositions shall bear the cost of obtaining and presenting said video and said costs shall not be taxed as court costs.
IOP 5.20 The party obtaining a video deposition or other video presentation shall upon reasonable request make available an opportunity for all attorneys to view said video deposition.
IOP 5.21 In the event any party's attorney should desire to obtain a duplicate copy of a video tape presentation, the attorney requesting such copy shall bear the expense of it but shall not use it for any purpose not connected to the litigation in question unless authorized by the party taking the deposition.
IOP 5.22 No reference to the cost of utilization of video tape shall be made by any party or attorney in the presence of a jury considering the case in question.
IOP 5.23 In the event any party has retained a video crew to either obtain or present video evidence and another party should decide to use the services of the same video crew during the same case, the cost for the additional use by another party shall be a matter of independent agreement between the video crew and the party desiring to also utilize their services. In the event more than one party utilizes video tape evidence, those parties are encouraged to avoid duplication of equipment and operators which might delay or encumber Court proceedings.
IOP 5.24 Any party wishing to obtain, utilize or present evidence by video tape other than in the form of a deposition may do so in general conformity with these guidelines and as further provided herein. Video evidence whether in the form of showing the scene of an occurrence, the working mechanics of equipment, the day in the life of an injured victim or countless other subjects may, under appropriate circumstances, aid the pursuit of justice. The Court recognizes that in instances where a deposition is not involved, a party may both conserve the Court's time and a jury's time by appropriate editing provided a proper foundation for the admissibility of the edited evidence is established under Georgia law.
IOP 5.25 A party choosing to present video tape evidence which is not a deposition shall meet the requirements of Georgia law to establish its admissibility in similar fashion to that required for the admissibility of any other pictorial representation.
IOP 5.26 In the event a party chooses to present edited video tape evidence other than a deposition, said party shall maintain an unedited version of said evidence.
IOP 5.27 This Court may from time to time amend this Procedure as experience and circumstances dictate or where appropriate enter a special Order relating to particular circumstances.
U.S.C. Rule 6 - Motions in Civil Actions
IOP 6 Standing Order Relating to the Issuance and Signing of a Rule Nisi by the Clerk of Court. Pursuant to O.C.G.A. §15-6-61(a) (3), each Clerk of Superior Court in the Enotah Judicial Circuit is hereby authorized to issue and sign any order in the nature of a Rule Nisi in which no injunctive or extraordinary relief is granted, as well as to issue and sign any other order which by Statute such Clerks are authorized to sign, including the approval of an affidavit for issuance of summons of garnishment. The Clerk shall forward a copy of a Clerk issued rule nisi to the Judge to whom the case is assigned.
U.S.C. Rule 10 - Trials
IOP 10.1 Seats within the Bar. Except by permission of the Court, only members of the Bar, officers of the Court, parties, and jurors actually engaged in the trial shall use the seats within the bar of the Court. Any such permission must be requested and granted prior to trial and shall not be requested in the presence of the jury. It shall be the duty of the Sheriff's Department and Bailiffs to see that this Rule is enforced without special Order of the Court.
IOP 10.2 Retention of Court Reporter's Notes and Exhibits. In civil cases in which no appeal is filed, after the time for appeal has expired, and in the event of appeal, thirty (30) days after final disposition of the appeal, the Court Reporter shall notify the parties that all documents and physical evidence admitted at trial should be picked up and returned to the interested parties. If said materials have not been removed from the Court Reporter's possession at the end of the twentieth (20th) day after due notification, the Court Reporter may request the Court to issue an Order directing the destruction of such material.
IOP 10.3 Interpreters
(A) Interpreters for Deaf Jurors and Litigants. It shall be the policy of the Enotah Judicial Circuit to provide persons who are deaf or hard of hearing with effective communication in all programs and services of the courts, including, but not limited to participating as jurors, parties, witnesses, and spectators. When a court has received notice that the provision of interpreting services is required to ensure effective participation by an individual who is deaf or hard of hearing, the court will secure, at its expense, the services of a qualified interpreter(s). A party shall provide notice of the need for hearing impaired interpreting services to the assigned judge at the pretrial conference or not later than ten (10) days prior to trial.
(B) Other Interpreters. Notice of the need for other court provided interpreting services shall be provided to the assigned judge by the parties at the pretrial conference or not later than ten (10) days prior to trial.
U.S.C. Rule 24 - Domestic Relations
IOP 24 Non-Custodial Parent Visitation Schedule. The following visitation schedule may be incorporated by reference in any domestic relations temporary order or permanent decree, and may be referred to as the "Standard Visitation Schedule:"
"The parties are encouraged to be liberal with visitation. The non-custodial parent shall have the right to visit with the minor child(ren) of the parties as follows and at such other times as the parties may agree:
(A) If the father is the non-custodial parent, the first and third weekend of each month from 6:00 p.m., on the first and third Friday to 6:00 p.m., on the following Sunday, but not to conflict with provisions (C) through (F) below, PROVIDED, however, that the child(ren) shall be with the mother on Mother's Day and with the father on Father's Day from 6:00 p.m., on the preceding Saturday until 6:00 p.m., on Sunday of such day.
(B) If the mother is the non-custodial parent, the second and fourth weekend of each month from 6:00 p.m., on the second and fourth Friday to 6:00 p.m., on the following Sunday, but not to conflict with the provisions (C) through (F) below, PROVIDED, however, that the child(ren) shall be with the mother on Mother's Day and with the father on Father's Day from 6:00 p.m., on the preceding Saturday until 6:00 p.m., on Sunday of such day.
(C) Two weeks of summer visitation in each year, with the non-custodial parent to give written notice to the custodial parent prior to May 1st as to the dates of the weeks chosen for summer visitation.
(D) In even-numbered years, the parties' minor child(ren) shall be with the non-custodial parent five days before Christmas, beginning at 6:00 p.m., December 20 and ending at 2:00 p.m., on Christmas Day, and shall be with the custodial parent five days after Christmas, beginning 2:00 p.m., on Christmas Day and ending at 6:00 p.m., December 30. In odd-numbered years, this schedule shall be reversed.
(E) In even-numbered years, the child(ren) shall be with the non-custodial parent for Easter from 6:00 p.m., on the Saturday preceding Easter to 6:00 p.m., Easter Sunday, and shall be with the custodial parent for Thanksgiving, from 6:00 p.m., the Wednesday preceding Thanksgiving to 6:00 p.m., Thanksgiving Day. In odd-numbered years, this visitation schedule for Easter and Thanksgiving shall be reversed.
(F) Each parent shall have at least two hours with the child(ren) on each child's birthday and on that parent's birthday. If the parties cannot agree on the time(s) for such visitation, then the parent who does not have the child(ren) with him or her on the birthday in question (whether as the custodial parent or under other visitation provisions) shall be entitled to visit with the child(ren) from 6:00 p.m., to 8:00 p.m.
The non-custodial parent shall pick said minor child(ren) up from the residence of the custodial parent and return said child(ren) to the residence of the custodial parent."
U.S.C. Rule 29 - Appointment of Counsel for Indigent
IOP 29 The Enotah Judicial Circuit Plan for Indigent Representation and Defense, Compensation and Forms, attached hereto as Exhibit "A," is adopted as a Local Rule of this Court and incorporated herein by reference as if the same were set out herein in its entirety.
U.S.C. Rule 36 - Filing and Processing
IOP 36.1 Adoption Petitions. A copy of a Petition for Adoption and each exhibit thereto shall be submitted to the Court with each request for the entry of an Order fixing the date upon which the Petition for Adoption is to be considered.
IOP 36.2 Land Line Cases. In all cases involving a disputed boundary line and in which there is an issue as to the location of the land line, the plaintiff shall within sixty (60) days of the filing of the suit have prepared and serve on the opposing parties a plat prepared by a registered land surveyor portraying clearly and with legal sufficiency the boundary line claimed by the plaintiff. Two copies of this plat should be provided to the opposing parties and within sixty (60) days of receiving same, the opposing parties should have superimposed on these two copies, with one to be returned to plaintiff's counsel, the boundary line claimed by defendant(s) marked clearly with legal sufficiency in a different color ink. (REV.5/99)
IOP 36.3 Mediation.
(1) DEFINITION: Mediation is defined as "...a process in which a neutral facilitates settlement discussions between the parties." Alternate Dispute Resolution Rules, I Definitions. The purpose is to open up lines of communication and to explore all possibilities of settlement in order to resolve the dispute. The role of the mediator is to help the parties analyze the issues and general alternatives for a mutually agreeable and voluntary settlement. The role of the parties is to recognize that people in dispute can come to the table to negotiate in good faith to try to resolve their differences. The mediation session is informal and confidential. The mediator has no decision making power. Any agreement reached will be by mutual consent of the parties. If an agreement is reached during mediation and the parties have retained counsel, but counsel is not present, the agreement is subject to the approval of the attorneys of record (i.e., it is a provisional contract). If the attorneys are present or the parties are acting as their own counsel, any agreement reached during the mediation is considered a contract and is binding under contract principles.
(2) REFERRAL TO MEDIATION: Cases will be referred to mediation on a case by case basis. Any party through counsel may request that a case be referred to mediation. Cases will be screened by the judge or the mediation office to determine whether the case is appropriate for mediation. If the case is to be referred, the referring judge will enter an Order referring the case to mediation. The original Order will be filed with the Clerk of Court with copies sent to all attorneys of record and the mediation coordinator. Compliance with the mandating Order does not require settlement.
(3) TIMING OF REFERRAL TO MEDIATION: The timing of the referral will be determined on a case by case basis. All mediation sessions will be concluded prior to final hearing or trial date. Once the case is referred, the mediation coordinator will contact the parties to arrange the scheduling of the session. Timely discovery may continue through mediation. The scheduling of a case for mediation shall not remove the case from assignment to a judge, interfere with discovery, nor serve to postpone scheduled motions before the Court. The Court may refer the matter to mediation before any hearings are conducted.
(4) EXEMPTION: A party may request by written motion within fifteen (15) days after the case is referred to mediation, to be exempt from mediation if: (a) the issue to be considered has been previously mediated; (b) the issue presents a question of law only; (c) other good cause is shown before the judge to whom the case is assigned; or, (d) the issues have been referred by consent order of the Court to a private provider of mediation services.
(5) APPOINTMENT OF MEDIATORS: The mediation coordinator will assign the mediator to each case that is referred. Mediators will be assigned on a rotational basis. Any party may move to disqualify a mediator for good cause. The motion for disqualification of a mediator should be presented to the mediation coordinator who will then present the motion to the judge to whom the case is assigned.
(6) QUALIFICATIONS OF MEDIATORS: The qualifications for certification as a mediator are established by the Supreme Court of Georgia Alternative Dispute Resolution Rules and the Uniform Rules for A.D.R. Programs. Mediators must also comply with all rules of the Ninth Judicial District A.D.R. Program.
(7) COMPENSATION OF MEDIATORS: Mediators will be compensated at the rate established by the judge to which the case is assigned. Unless otherwise Ordered, the compensation rate shall be $75.00 for the first two hours of the session and $50.00 for each additional hour. The parties shall pay the mediator directly at the beginning of each session. All requests for fee waiver or fee reduction are to be made to the mediation coordinator prior to the mediation session.
(8) IMMUNITY: Immunity for mediators is governed by the applicable provisions of the Uniform Rules for Alternative Dispute Resolution (hereafter Uniform Rules).
(9) CONFIDENTIALITY: Confidentiality for the mediation process is governed by the applicable provisions of the Uniform Rules.
(10) APPEARANCE: The presence of parties at all mediation conferences is required unless the Court finds that a party is a nonresident or is incapacitated. The requirement that a party appear at a mediation session is satisfied if at least one of the following persons are physically present (a) the party; (b) the party's attorney who must have full authority to settle without further consultation; or, (c) a representative of the insurance carrier for any insured party who must have full authority to settle without further consultation.
(11) SANCTIONS FOR FAILING TO APPEAR WITHOUT GOOD CAUSE: If a party fails to appear at a duly noticed mediation session without good cause, the mediation coordinator shall notify the judge to whom the case is assigned. Failure to appear may subject a party to citation for contempt and to the imposition of sanctions permitted by law.
(12) COMMUNICATION WITH PARTIES: The only ex parte communication outside of the mediation conference shall be for the purpose of verifying appointment times and locations and to answer questions about the mediation process and procedures.
(13) COMMUNICATION WITH THE COURT: Communications between the mediation office and the Court and between mediators and the Court are governed by the applicable provisions of the Uniform Rules.
(14) COMPLETION OF MEDIATION: Mediation will be completed prior to any scheduled final trial date. If no final trial date is scheduled, the mediation will be completed within forty-five (45) days of the date of the Order referring the case to mediation, or by the date for completion of mediation contained in the referral Order, whichever is later.
(15) ROLE OF COUNSEL: Attorneys are not required to attend mediation conferences, but are allowed and encouraged to do so. The mediator shall at all times be in control of the mediation and the procedures to be followed during the mediation. Counsel shall be permitted to communicate privately with their clients at any time. Counsel's presence at the mediation is a matter to be decided by the attorney and the client, unless otherwise Ordered by the Court. If counsel of record is not present, any agreement reached is subject to such counsel's review and approval.
(16) COURT CONFLICTS: For the purpose of conflicts, as contemplated under the Uniform Rules of Superior Courts, the mediation procedure shall be construed as being a non-jury proceeding and counsel and the parties may rely upon said designation in resolving any scheduling conflicts.
SO ORDERED this _____ day of __________, 1999.
HUGH W. STONE, Chief Judge
Enotah Judicial Circuit
DAVID E. BARRETT, Judge
Enotah Judicial Circuit
INTERNAL OPERATING PROCEDURE 29
SECTION 1. PREAMBLE
WHEREAS, the Georgia Criminal Justice Act (O.C.G.A. §17-12-1 et seq.), provides that all Courts of this state having jurisdiction of proceedings of a criminal nature shall, by rule of court, provide for the representation of indigent persons in criminal proceedings in such Court; and
WHEREAS, the Official Code of Georgia Chapter 11, Juvenile Proceedings, Parental Rights, requires the appointment of legal counsel in a juvenile proceeding for any needy party; and
WHEREAS, it is desirable to adopt uniform procedures for the Courts of the counties comprising the Enotah Judicial Circuit.
NOW, THEREFORE, pursuant to the Georgia Criminal Justice Act and Chapter 11 of the Official Code of Georgia, the within rules are hereby adopted to govern the procedure for providing counsel for needy parties in proceedings in the Juvenile Courts and for indigents in criminal proceedings in the Superior and other Courts in the counties of the Enotah Judicial Circuit, to-wit: Lumpkin, Towns, Union and White Counties.
SECTION 2. INDIGENT REPRESENTATION AND DEFENSE
Application. As provided by the Georgia Criminal Justice Act, these rules shall govern the representation of indigent persons in criminal proceedings in the courts of the counties of the Enotah Judicial Circuit. Additionally, these rules shall govern the representation of needy parties in any juvenile matter in the Juvenile Courts of the counties of the Enotah Judicial Circuit. As used herein, a "concerned court" shall be the Superior and all other Courts of the municipalities and counties of the Enotah Judicial Circuit having, or anticipated as having, with respect to alleged violations of local ordinances or state law, jurisdiction over a proceeding in which an indigent person is a party or over the detention of an indigent person or jurisdiction over a matter involving a juvenile proceeding.
Representation by court-appointed counsel shall be provided for any indigent person, as hereinafter defined, who is charged with state law or local ordinance violation; who is a needy party, as hereafter defined, to a juvenile proceeding; or, for whom the Sixth Amendment to the Constitution of the United States, as interpreted by the Supreme Court, requires the appointment of counsel; or, for whom in a case in which a person faces loss of liberty, requires the appointment of counsel.
Time of Appointment. Counsel shall be appointed for every eligible person in custody within seventy-two (72) hours of arrest, detention or application for appointment of counsel. Counsel shall make contact with the person promptly after actual notice of appointment. A person released from custody within seventy-two (72) hours who has not made application for appointed counsel or has not been appointed counsel shall be notified at least ten (10) days prior to the next critical stage of the proceedings against him/her of the right to receive court-appointed counsel and the procedure to be followed to have eligibility determined and counsel appointed.
The Chief Judge of this Circuit, or his designee, or the Juvenile Judges of this Circuit, shall be the appointing authorities and they shall determine initial eligibility and appoint attorneys for indigent or needy parties as follows: At the time of detention, the Sheriff or appropriate probation or intake officer, as a part of booking or detention procedure, shall provide each person taken into detention an Application for Appointment of Counsel and Certificate of Financial Resources, Form Rule 29-01 (attached) and a Court-Appointed Attorney Information Sheet (attached). Upon request the Sheriff or appropriate probation or intake officer will assist the defendant in completing the form. The Sheriff and intake officer shall forward completed forms to the Clerk of Court who shall transmit the same to the Chief Judge, or his designee, or the appropriate Juvenile Judge, for determination of initial eligibility and appointment.
Any judicial officer conducting a first appearance, commitment, detention, or any other hearing or trial, shall determine if an unrepresented defendant or person entitled to counsel seeks appointed counsel, and if so, provide and assist such defendant in the completion and submission of a request for appointed counsel on the appropriate forms. Probation or intake officer completed forms shall be provided by the officer to the hearing judge. The judicial officer shall determine eligibility and appoint counsel, if appropriate. If such judicial officer appoints counsel to represent the defendant at the first appearance commitment, detention, or any other hearing or trial, an information copy of the application and appointment order shall be furnished the Clerk, who shall forward the same to the Chief Judge. If counsel is not appointed, the action of the judicial officer shall be noted on the application and the application and any Order thereon shall be forwarded to the Chief Judge.
Upon the Clerk of Court giving notice of arraignment, calendar call, pretrial conference, or trial, the notice given the defendant by the Clerk of Court shall contain the following information: "You have the right to be represented by an attorney. You may be eligible for the appointment of an attorney to represent you, if you are indigent. If you do not have an attorney and believe you are indigent, at your court appearance scheduled by this notice, ask the Judge to determine if you are eligible for an appointed attorney."
The application of any applicant found ineligible for appointment of an attorney by the designee of the Chief Judge of the Circuit shall be forwarded by the designee to the Chief Judge within three (3) working days. The Chief Judge shall review said denied application and determine the then eligibility of the applicant for appointed counsel.
The original application for appointment of counsel and original order of appointment/denial shall be forwarded by the Chief Judge, or his designee, Juvenile Judge or other judicial officer to the Clerk of the appropriate Superior or other Court for filing. The appointing authority shall distribute copies of such order as follows:
(1) Superior, Probate, Municipal or Magistrate Court case: Applicant; District Attorney; Sheriff; Chief Judge of Superior Courts of Circuit; concerned Probation Officer; and if appointed, the appointed attorney.
(2) Juvenile Court case: Applicant; Department of Juvenile Justice (DJJ) or Department of Family and Children Services (DFCS) and SAAG concerned; Chief Judge of Superior Courts of Circuit; and if appointed, the appointed attorney.
In order to ensure the confidentiality of proceedings, Juvenile Judges will not delegate approval authority for any Juvenile Court appointments, except to another Juvenile Court Judge.
The original order determining that a person or a party to a juvenile proceeding is entitled to appointed counsel and/or appointed guardian-ad-litem, and containing the assignment of counsel, shall be filed with the Clerk of such Court and shall remain a part of the permanent record in said case. The appointed counsel shall receive a copy of the order of appointment.
Self-Representation. Upon inquiry, or being otherwise informed, if a defendant or other person entitled is without counsel, the judge presiding in the concerned court shall determine and make a finding as to whether or not the case should proceed with or without counsel for such person. If the defendant or other person entitled expressly states he/she does not desire representation but desires to proceed pro se, the presiding judge shall conduct a hearing to determine if said person is capable of making that election. If said person is found capable and expressly maintains his/her desire for no representation after being informed of his/her right to counsel and the risks of proceeding without counsel, no attorney shall be appointed. However, the Court may appoint an attorney to advise the self-represented person on matters of procedure, evidence and substantive law.
Counsel and guardians-ad-litem shall be provided for juveniles in those cases where counsel or guardians-ad-litem are expressly required by the Juvenile Code of Georgia as now or hereinafter enacted and in all other cases where substantial justice requires.
Indigency. In determining indigency, the court shall consider all material facts relating to the ability to pay for legal services and the proper form and authentication thereof. The presiding judge shall consider the financial eligibility guidelines established by the Circuit Tripartite Governing Committee, and the current guidelines established by the Supreme Court of Georgia and/or the Georgia Indigent Defense Council for the operation of local indigent defense programs, as well as such factors as income, property owned, expenses, outstanding obligations, and the number and ages of dependents.
Release on bail shall not preclude a person from being indigent nor shall it be necessary that a person be destitute or a pauper to be indigent.
Regardless of the prima facie eligibility on the basis of income, a person who has sufficient assets that are easily converted to cash by sale or mortgage may not be qualified for representation if it would not impose a substantial financial hardship to convert them to cash.
For purposes of juvenile matters, a needy person is one who at the time of requesting counsel is unable without undue financial hardship to provide for full payment of legal counsel and all other necessary expenses for representation.
In the event an accused person is discovered to have been ineligible at the time of the appointment of an attorney, the court shall be notified. The court may discharge the appointed attorney and refer the matter to the private bar. The attorney shall be paid for the time spent on the case and recoupment sought from the ineligible person.
Counsel may be appointed for any accused person who is unable to obtain counsel due to special circumstances such as emergency, hardship, or documented refusal of the case by members of the private bar because of financial inability to pay for counsel.
Regardless of eligibility for appointment of counsel, counsel will be appointed for any person confined in jail for more than thirty (30) days, for whom counsel has not been appointed or retained. Counsel so appointed shall contact their client face to face within seven (7) work days of such appointment and shall promptly file an application to reduce or set bail for their client to or in an appropriate amount.
The Courts have the inherent responsibility to appoint counsel regardless of indigency.
Indigency Hearing and Appointment. At arraignment or trial or other hearing, the presiding judge upon finding that a defendant or other person entitled to counsel is incapable of expressly waiving counsel or states his/her desire for counsel and that he/she is financially unable to retain same, the presiding judge may conduct a hearing to determine indigency of the defendant or other person entitled. Otherwise, the determination shall be made based on the facts contained in an Application for Appointment of Counsel and Certificate of Financial Resources in substantially the form prescribed by Rule 29, Uniform Rules for Superior Courts, attached hereto as Form 29-01. If a hearing is conducted, the presiding judge shall place such person under oath and inform him/her of the material factors relating to his/her or another's ability to pay for legal services. The judge shall then proceed with the hearing in open court, of if a juvenile matter, in chambers, in the presence of the district attorney, solicitor, sheriff, or such other person representing the state, to determine if such person is entitled to appointed counsel. Upon conclusion of the hearing or review of an Application, the presiding judge shall make a finding as to whether or not such person is entitled to appointed counsel.
If such a person is found to be entitled to appointed counsel, the presiding judge shall assign counsel by entering an order upon an approved form.
All pre-arraignment or pre-detention hearing applications for representation shall be forwarded to the Chief Judge of the Circuit, or his designee, or the assigned Juvenile Judge, as appropriate, for determination of indigency/eligibility. Applications at arraignment, trial or other hearings shall be determined by the presiding judge.
Assignment of Counsel. Upon a determination of indigency, the Chief Judge, or his designee, assigned Juvenile Judge or presiding Judge will assign attorneys on an equitable basis from the roster of attorneys practicing in the Enotah Judicial Circuit where the criminal case or juvenile matter is pending, or in accordance with any contractual arrangement entered into by the Circuit Tripartite Governing Committee or any county governing body, provided such contractual arrangement has been approved by the Superior Court Judges of this Circuit. The roster of attorneys shall be amended from time to time so that it fairly represents all attorneys practicing in the Enotah Judicial Circuit as well as those from other circuits who will provide such representation and particularly those attorneys in the county where the criminal case or juvenile matter is pending.
At any stage including appeal or post-conviction proceeding, the court may for good cause assign a substitute attorney.
Ordinarily only one attorney will be assigned to any case or juvenile matter. However, more than one attorney may be assigned in a capital felony case for the representation of one defendant. Further, if in a criminal case wherein two or more defendants are jointly indicted if the interests of the defendants conflict, or in juvenile matters, if the interest of two or more parties conflict, separate counsel shall be provided for each of the defendants or parties having conflicting interests.
The appointment of attorneys and the assignment of cases should be as follows: (a) appointments of private attorneys shall be made on an impartial and equitable basis; (b) the cases shall be distributed among the attorneys to ensure balanced workloads through a rotation system; (c) more difficult or complex cases shall be assigned to attorneys with sufficient levels of experience and competence to afford adequate representation; (d) less experienced attorneys should be assigned cases which are within their capabilities, but should be given the opportunity to expand their experience under supervision; and (e) cases in which the death penalty is sought shall be assigned only to attorneys of sufficient experience, skill and competence to render effective assistance of counsel to defendants in such cases. The American Bar Association "Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases" may be referred to as a suggestion for the determination of the experience, skill and competence of attorneys in death penalty cases.
Competency to Defend. No person may be assigned the primary responsibility of representing an indigent person or a person entitled to representation in a juvenile matter unless he/she is authorized to practice law in this state and is otherwise competent to counsel and defend the person whom he/she is appointed to represent. Competence shall be determined by the concerned court at the first court proceeding after the assignment of counsel. Counsel may be assigned as co-counsel with experienced lead counsel to develop the skills necessary to provide competent representation to indigents.
Standards of Performance. Standards of attorney performance and conduct shall include, but not be limited to the following:
(A) A panel member should make contact with the defendant as soon as possible (but not later than seven (7) work days) after the assignment;
(B) A panel member should actively represent his/her client at every stage of the criminal proceeding, including appeal, unless the defendant raises the issue of ineffective assistance of counsel and in that event, appointed counsel shall immediately contact the assigned Judge and in writing explain the particulars of such claim.
(C) A panel member should represent his/her client vigorously within the bounds of the law and ethical conduct;
(D) A panel member should at all times perform his/her role as counsel independently; and
(E) A panel member should responsibly manage and account for his/her time in rendering services under the program.
Expert Witness Compensation. The court utilizes forms for expert witness compensation: Petition for Witness Fees (Form 29-18), Order for Payment of Witness Fees (Form 29-19), and, Petition for Compensation in Excess of Basic Limits (Form 29-20).
Expert witness fees and expenses must be authorized by prior Petition and Order authorizing fees and expenses in a sum certain. If an expert witness's fees will exceed the basic limit set forth in the authorization order, submit a Petition for Compensation in Excess of Basic Limits prior to exceeding the limits authorized through the attorney for whom the witness works. Prior approval is necessary in order to ensure the expert will be paid. Attach a letter to the application setting forth data in support of the request to exceed basic limits.
Verify all Petitions seeking expert witness payment before a notary public. Attach an Order for Payment of Witness Fees to the Petition. The hiring attorney shall submit the completed forms to the appointing judge for approval/denial. The appointing judge shall return the petition with the order of approval/denial to the hiring attorney for disposition as provided herein for orders for payment of appointed attorney fees.
Petition and Order for Payment of Fees and Expenses. Upon completion of the case or matter, assigned counsel shall file a petition (with a copy of his/her order of appointment attached), for attorney's fees upon an approved form. The approved form shall state the itemization of time spent in preparation and investigation out of court, for time spent in trial or in other court appearances, and for expenses incurred in representation. Assigned counsel shall attach a time record sheet supporting the petition statements, except for petitions seeking only the payment of the minimum fee. Billing shall be in increments of one-tenth (0.1) of an hour. All petitions for payment shall be under oath. All petitions shall be submitted to the judge who presided over the trial of the case or entered sentence. Interim billing for services in protracted cases is authorized. Counsel may be reimbursed for actual reasonable expenses incurred. All expenses shall be itemized and shall be subject to the limitations hereinafter provided. Counsel shall not include an allocated part of general office overhead such as rent, telephone service, secretarial help, or items of a personal nature.
Upon receipt of the petition for payment the presiding judge shall review the petition, and if in order, shall promptly sign an order on an approved form directing the county governing authorities to pay to the appointed counsel the sum set out in the order. Orders for payment of fees shall be prepared by the petitioning attorney leaving the payment amount blank. Orders for payment of fees in juvenile cases shall be prepared using only the initials of the juvenile(s) involved in the proceedings.
Upon signing of the order for payment, the presiding judge shall return the order and petition, along with any attachments, to the appointed counsel who shall then file the same with the Clerk of the appropriate court and forward a filed copy of the payment order thereon to the county governing authorities for payment. In no case shall an attorney present a request for payment to the county governing authorities without the order for payment first being signed by the presiding judge and filed with the Clerk of the appropriate court. The presiding judge shall forward a copy of the order for payment to the Chief Judge of the Superior Court of this Circuit.
Compensation. The following rates of compensation are set with the knowledge that they are less than full and adequate, but yet more than nominal, and that such fees are being paid out of public funds for semi-charitable purposes.
(A) BASIC RATES OF COMPENSATION. Assigned counsel shall be compensated without prior court approval as follows:
(1) Counsel shall receive as a minimum fee for representation in either a felony, misdemeanor or juvenile case the sum of Fifty ($50.00) Dollars; except, when a number of cases are handled in the same proceeding for the same defendant the minimum fee shall be paid only once. The attorney shall receive the $50 minimum fee in such cases or shall be paid the hourly rate, whichever is greater, but shall not receive the minimum fee and the hourly rate.
(2) If the time spent exceeds the minimum herein stated, appointed counsel shall for services rendered prior to May 1, 1999, be compensated at the rate of Thirty-Five ($35.00) Dollars per hour for time spent in preparation and investigation of the case or matter, and at the rate of Forty-Five ($45.00) Dollars per hour for time spent in trial or other court appearance, subject to the limitations and provisions hereinafter stated. For services rendered on or after May 1, 1999, counsel shall be compensated at the rate of Forty-Five ($45.00) Dollars per hour for time spent in preparation and investigation of the case or matter, and at the rate of Sixty ($60.00) Dollars per hour for time spent in trial or other court appearance, subject to the limitations and provisions hereinafter stated. Counsel shall be compensated in death penalty cases at the rate of Fifty-Five ($55.00) Dollars per hour for time spent in preparation and investigation of the case or matter and at the rate of Sixty-Five ($65.00) Dollars per hour for time spent in trial or other court appearance, subject to the limitations and provisions hereinafter stated or as specified in the appointing order.
Regardless of the number of cases or matters to which an attorney may be appointed, payment shall be made only once for each hour or expense and counsel shall not include the same time or expense item on two or more petitions for payment. For example, if counsel spends two hours in court appearance handling several charges against several defendants, the two hours so spent shall be apportioned among all the petitions for payment so that the total payment for said cases shall not exceed two hours.
(3) Fees for compensation for a death penalty felony case shall be fixed as provided in Rule 29.9, Uniform Superior Court Rules.
(B) MAXIMUM COMPENSATION, MAXIMUM EXPENSES, AND EXTRAORDINARY CIRCUMSTANCES. The compensation to be paid to an appointed counsel for any misdemeanor or any juvenile equivalent or unruly charge shall not, without prior approval, exceed the sum of One Thousand ($1,000.00) Dollars and for any non-death penalty felony case or any juvenile equivalent, deprivation or guardian-ad-litem or attorney for proceeding shall not, without prior approval, exceed the sum of Two Thousand Five Hundred ($2,500.00) Dollars for any one case or matter. Reimbursement for expenses in any case or matter, unless prior approval is obtained, shall be limited to the sum of One Hundred Seventy-Five ($175.00) Dollars.
The presiding judge may approve the payment of such additional compensation or expense in excess of the limitations stated herein as the presiding judge may determine and find necessary to provide for compensation for protracted or complex representation. Request for approval of compensation or expense in excess of the limits stated herein shall be by petition on an approved form to the presiding judge in advance of the expenditure of such time and/or expenses.
Upon presentation of the petition requesting permission for additional compensation or expense in excess of the limits stated herein, the presiding judge shall conduct an ex parte inquiry to determine if such additional time and/or expenses are reasonably needed to provide the defendant or party to a juvenile proceeding adequate and sufficient representation. If reasonably convinced that such additional compensation and/or expense is required, the court shall sign an order on an approved form, which form shall set out the maximum compensation for time spent or expenses to be reimbursed as shall be allowed.
In the absence of prior written approval, only in rare situations where substantial injustice to the appointed counsel would result, shall the presiding judge order payment of compensation or expense in excess of the limits herein stated in the absence of prior written approval.
Payment. Upon receipt of the petition for payment and order thereon, the county governing authorities shall pay the attorney the amount so determined from public funds available for the operation of the courts in such county.
Records. Appointed counsel shall keep appropriate records respecting each indigent or needy person whom he represents.
Forms. The Clerks of the Superior and Juvenile Courts of the Enotah Judicial Circuit shall maintain a supply of all approved forms which shall be furnished upon request to any applicant, to the presiding judge of any concerned court, or any appointed counsel. The approved forms are as follows:
Form 29-01 - Application for
Appointment of Counsel and Certificate of Financial Resources (Superior Court)
Form 29-02(A)- Application for Appointment of Counsel and Certificate of Financial Resources (Juvenile Court-DJJ)
Form 29-02(B)- Application for Appointment of Counsel and Certificate of Financial Resources (Juvenile Court-DFCS)
Form 29-03 - Superior Court Appointment of Counsel
Form 29-04(A)- Juvenile Court Appointment of Counsel-DJJ
Form 29-04(B)- Juvenile Court Appointment of Counsel-DFCS
Form 29-05 - Appointment of Guardian Ad Litem
Form 29-06 - Appointment of Attorney for Guardian Ad Litem
Form 29-07 - Denial of Appointment of Counsel (Superior Court)
Form 29-08 - Denial of Appointment of Counsel (In School and/or Living at Home, Parent(s) Responsibility)
Form 29-09 - Denial of Appointment of Counsel (Juvenile Court)
Form 29-10 - Order Defendant to Provide Own Representation
Form 29-11 - Petition and Order for Compensation in Excess of Basic Limits
Form 29-12 - Superior Court Petition for Attorney Fees
Form 29-13 - Superior Court Order for Payment of Attorney Fees
Form 29-14 - Juvenile Court Petition for Attorney Fees
Form 29-15 - Juvenile Court Order for Payment of Attorney Fees
Form 29-16 - Guardian Ad Litem/Attorney for Guardian Ad Litem Petition for Fees
Form 29-17 - Guardian Ad Litem/Attorney for Guardian Ad Litem Order for Payment of Fees
Form 29-18 - Expert Witness Petition and Order for Compensation in Excess of Basic Limits
Form 29-19 - Petition for Expert Witness Fees
Form 29-20 - Order for Payment of Expert Witness Fees
All approved forms shall have inconspicuously printed or typed
thereon the date the forms were adopted. The forms approved shall be those
attached to these rules with the designation (Approved - May, 1999). All
approved forms may be retyped, reproduced, and additional information may be
provided on said forms, provided however, that the caption of the form, title of
the form, and approved wording shall not be omitted. The presiding judge may
decline to sign an order for payment until the petition for payment and/or the
order of appointment are on approved forms.
Tripartite Governing Committee. With the consent of the governing authorities of the counties within the judicial circuit, there is hereby established a Tripartite Governing Committee to be composed of one member appointed by majority of the Chairpersons or Sole Commissioners of the counties of this Circuit; one member appointed by the Chief Judge of the Circuit to represent the court; and one member appointed by the President of the Enotah Circuit Bar Association to represent the Bar Association. The appointed representatives shall not be judges, prosecutors, or public or contract defenders. The Committee member appointed by the Chief Judge of the Circuit shall be appointed for an initial term of one year. The Committee member appointed by the President of the Enotah Circuit Bar Association shall be appointed for an initial term of two years. The Committee member appointed by the Chairpersons or Sole Commissioners shall be appointed for an initial term of three years. Following the initial terms of office, all succeeding members of each local Indigent Defense Program shall be appointed for terms of office of three years each and shall serve until their respective successors are duly appointed and qualified. The initial members of the Committee shall take office within thirty days of the effective date of their appointment and shall serve until their respective terms of office expire. A member may be appointed to succeed himself or herself as a member of the Committee. The Committee shall promulgate and/or approve any amendments to this Operating Procedure Rule in conformity with the Guidelines of the Georgia Indigent Defense Council for the operation of local Indigent Defense Programs as the same now or hereafter exists. Recommended changes to this Rule or further operating guidelines and procedures shall be submitted to the judges of the Superior Courts of this Circuit for inclusion in this Operating Procedure.
Severability. If any procedure or portion of a procedure herein adopted shall conflict with any provision of law now or hereinafter enacted, said procedure or portion of procedure shall stand amended so as not to conflict with said law but all procedures not in conflict therewith shall remain in full force and effect.