Originally created 12/05/04

Use of retirees is meant to save money



In January 1998, the Augusta judicial circuit's chief judge signed a court order designating retiring Judge Bernard J. Mulherin Sr. as a permanent senior judge with "all necessary support."

By signing that order, Chief Judge William M. Fleming Jr. enabled the judge to work for as long as he wishes. It also allowed Senior Judge Mulherin to substantially increase his paycheck. He made $206,000 last year including his retirement pay, more than any other judge in the state.

In a time of state financial woes - with universities slashing programs, homicide evidence sitting unexamined at state crime labs and 45,000 children losing state health care benefits - an investigation by The Augusta Chronicle reveals that Georgia taxpayers pay millions every year, with little or no financial oversight, to retired judges working in Georgia courts.

The Chronicle's investigation discovered that, although other states pay a fraction of what Georgia taxpayers do for this service, there's rarely a correlation between the amount of time these judges work in various judicial circuits and the caseloads in those circuits.

Having retired judges fill in on the bench is not a new idea. Every state and the federal government make use of retired judges, calling them back to preside in emergencies when a sitting judge takes ill, has an extended leave or cannot preside over a case because of a conflict of interest. And retired judges help relieve caseload burdens when the growth in cases outpaces the creation of new judgeships.

The Georgia Council of Superior Court Judges touts the use of senior judges as a cost-saving measure. The practice helps courts manage unexpected increases in caseloads and keeps backlogs from developing or growing by increasing the number of judges available to hear cases. It also helps courts when senior judges take over emergency cases and those that must be completed within a restricted time.

But those aren't necessarily the reasons for calling in a senior judge in Georgia.

On Oct. 8 in Richmond County Superior Court, Judge Albert M. Pickett was scheduled to be on the bench in the morning and afternoon, but he took a vacation day. Senior Judge Mulherin replaced Judge Pickett at a cost to taxpayers of $467. Judges Carl C. Brown Jr. and Michael Annis had no scheduled hearings or trials that day, although they could have been researching or studying legal issues or preparing written rulings.

That example stunned Roger Wade, the president of the Georgia Public Policy Foundation, a watchdog organization.

"The logic that I always heard was that it was cheaper (to use senior judges than to create new judgeships). ... Now I don't know," Mr. Wade said.

Differing estimates

To determine how much the state was spending on senior judges, The Chronicle sought access to the judges' financial statements, which were submitted to the Council of Superior Court Judges. The council refused an Open Records Act request for the financial reports. Instead, it simply issued a statement saying that senior judges cost the state $2.4 million last year but that it would have cost $14 million if new judges had done the same work.

"I don't know of a justification for any branch of government ... to exclude scrutiny," said Republican state Sen. Charles Tanksley of Marietta, a lawyer and the chairman of the Senate's judicial committee. Every governmental expense should be open to examination, he said.

The state's division of audits, however, did provide access to the monthly expense statements submitted by the working senior judges during the past two fiscal years. The stack of documents - more than a foot tall - showed that the cost totaled more than $4.3 million for those two years.

Mr. Tanksley said he has heard that senior judges can make more money than regular judges.

"That may be a valid criticism," he said.

In fiscal year 2003, the top three earners among the senior judges split their time among various judicial circuits to relieve those with the highest caseloads. However, Senior Judge Mulherin spent the majority of his time, 83 percent, in the Augusta circuit, which has a below-average caseload. Senior Judge Levis A. McConnell Jr. spent less than half of his time working in his home circuit of Houston, and Senior Judge Tracy Moulton Jr., of Pataula, spent 64 percent of the time working in his home circuit.

Unlike sitting judges, who make a set salary, senior judges are paid by the day. That's how many of them manage to earn more than their colleagues.

In the Augusta circuit, Senior Judge Mulherin's 2003 earnings of $206,340, including retirement and county supplements, eclipsed that of the elected judges, who made $146,770 in salary and supplements from Richmond, Columbia and Burke counties.

In the Augusta circuit, Chief Judge Fleming sets the trial schedules, deciding which judge will preside over the Superior Courts in the three counties. In 22 weeks during the past two years, he assigned Senior Judge Mulherin to preside over weeks when trials are held.

On three of those trial weeks, when Senior Judge Mulherin was assigned to hold court in Columbia County or Burke County, he was the only judge assigned to preside over trials in any courtroom in the circuit.

That doesn't mean other judges weren't working. When judges are not presiding over trials and hearings, they research legal issues, keep up with developments in the law and prepare orders.

When Senior Judge Mulherin makes those trips to Columbia County or Burke County, it costs state taxpayers even more because he charges $128 per diem for leaving Augusta, in addition to the $467 daily compensation. Senior judges can collect per diem pay for any day worked outside the county where they live. The chief judge assigned Senior Judge Mulherin to preside in those counties 10 times in the past two years - more than any other judge except Judge Fleming.

Proponents say the use of senior judges should save taxpayers money because part-time judges don't need offices or full-time staffs, but in Augusta, Richmond County taxpayers provide Senior Judge Mulherin with an office, equipment and supplies and pay more than $33,000 a year for his secretary.

Mr. Tanksley, the state senator, said he didn't have enough information to determine whether Georgians are getting a good return on their investment in senior judges. However, taxpayers should expect sitting judges to use resources and management skills wisely to keep the cost for senior judges down, and taxpayers are entitled to an accurate accounting of a senior judge's time, he said.

Not all circuits make frequent use of senior judges. The Floyd circuit, with four judges, rarely needs a senior judge to keep up with the caseload, court administrator Phil Hart said. The judges fill in for one another when one is absent, he said. Senior judges have been needed only when regular judges have had to recuse themselves from specific cases, Mr. Hart said. In 2003, senior judges worked just 22 days in the circuit.

In some circuits, however, the use of senior judges can be crucial. In the Cherokee Judicial Circuit, which has the state's highest caseload and only three sitting judges, if one judge takes a vacation, falls ill or is tied up in a lengthy trial, the backlog of pending cases could crash the system.

But circuits such as Cherokee, which has an average of 3,521 cases per judge, aren't using senior judges the most. Instead, many of the circuits where senior judges work have comparatively low caseloads. For example, Stone Mountain Judicial Circuit Senior Judges Edward Wheeler and Joel Fryer worked more days than those in any other circuit reported, although Stone Mountain has 10 regular judges and a caseload of just more than the state average of 1,897. A single case can range from a misdemeanor offense or uncontested divorce to a death penalty or contentious divorce with child custody battles.

The Cherokee circuit judges have twice the caseload of the judges in the Augusta circuit. However, the Cherokee judges sought help from senior judges on only 25 days in fiscal 2003. In Augusta, Senior Judge Mulherin alone worked 150 days in that period.

The circuits with few judges are often hard-pressed, said Molly Perry, of the Council of Superior Court Judges. Cherokee is among those the council recommended for a new judgeship last year and this year. With a state budget crisis, legislators turned down new judgeships last year, and hopes are dim about this year's prospects for 10 requests, Ms. Perry said.

The order Judge Fleming signed Jan. 4, 1998, giving Senior Judge Mulherin a permanent appointment, says that because "the workload in the Augusta Judicial Circuit has substantially increased to the point that the present sitting judges need judicial assistance," Judge Mulherin, now a senior judge, would serve on the bench.

An examination by The Chronicle of the cases filed in Richmond, Columbia and Burke counties over the past decade, however, shows that the number of cases remained stable in 1996 and 1997, at about 9,300, and decreased steadily over the next few years to total 8,063 in 2000.

Since then, the number of total cases has grown to more than 13,000. In the Augusta circuit, four judges preside over criminal and civil cases, which average 1,555 cases per judge, and four judges preside over domestic cases, which average 1,741 per judge.

Because Senior Judge Mulherin is called in to preside almost exclusively over criminal and civil cases, the actual caseload for half of Augusta's circuit judges drops even further, to the lowest in the state.

If they're not handling the backlog of cases, what are senior judges doing? According to court records, judges' posted schedules and reporters' observation:

On Sept. 17 in Richmond County Superior Court, Senior Judge Mulherin presided over sentencing, arraignment and bond hearings in place of Judge Fleming. Judge Carl C. Brown Jr. had no hearings scheduled that day. Judge J. Carlisle Overstreet was assigned to Columbia County for the week, but there was no court in Columbia County that day or the day before.

Judge Pickett was assigned to preside over Richmond County trials for the week, but none was tried that day or the day before. Like Judge Brown, neither Judge Pickett nor Judge Overstreet had any scheduled court business, although they could have been doing other court-related work.

On Sept. 21, when Senior Judge Mulherin was back in Richmond County Superior Court for three hearings, Judge Pickett had nothing scheduled. Judge Overstreet had only two scheduled hearings, starting at 10 a.m., and Judge Brown had hearings scheduled only through 11:30 a.m.

Judge Fleming said he requests Senior Judge Mulherin's assistance when one of the sitting judges is on vacation or disqualified, or at the convenience of parties involved in a legal matter. He acknowledged that one of the other sitting judges could do the same.

'They need to do more'

State Rep. Mary Margaret Oliver, D-Atlanta, the chairwoman of the House Judiciary Committee, said maybe Georgia should look at changing how senior judges are called to work.

Georgia taxpayers are paying retired superior court judges more - 200 percent more - than several other similar-size states.

"Wow. It certainly sends up a red flag. We're cutting budgets all over the place," said Georgia Rep. Sue Burmeister, R-Augusta.

She and her colleagues should start asking some hard questions before signing off on the next judiciary budget, Mrs. Burmeister said. Other legislators contacted by The Chronicle agreed.

"If they still have money to throw around, maybe we need to cut their budget some more," Sen. Eric Johnson, R-Savannah, said of the judiciary branch.

There has been a concern among legislators that Georgia judges aren't handling caseloads efficiently, Mr. Johnson said.

"We believe they can do more, and as we tighten budgets, they need to do more," he said.

Although the General Assembly lacks line-item veto power over any budget submitted by the judicial branch of government, it can force fiscal discipline by reducing the total amount of money, said Mr. Johnson, a member of the Senate's Finance and Appropriations committees.

Georgia differs from the other states in that requests for senior judges in those states are funneled through a central state agency. In Georgia, the chief judge in any of the state's 47 judicial circuits can, with a stroke of a pen, recall a senior judge for a day or for years.

In North Carolina - a state with a population similar to Georgia's - where requests for judicial assistance go through the state's administrative office of courts, the program cost $697,246, compared with Georgia's $2.4 million price tag for the past fiscal year.

Mr. Wade, of the Georgia Public Policy Foundation, said he had assumed that the requests in Georgia also went through a central agency. That it's not done that way raises serious questions, he said.

In North Carolina, for example, retired judges who help out are called emergency judges, said Beryle Talton of the Administrative Office of the Courts. The sitting trial judges call her office when they need assistance.

Other elected judges are used before an emergency judge is called on, Ms. Talton said. Usually, emergency judges are used only for a few days at a time, and only occasionally for a full week, she said.

In Virginia and Michigan, which also have comparable populations, taxpayers paid even less than those in North Carolina for the services of retired judges: $626,800 in Virginia and $631,272 in Michigan. In all three states, the requests for assistance go through administrative court offices.

Georgia also differs from other states in that it has no statewide policy or guideline on the use of senior judges. Each judicial circuit has its own way of doing things.

Gov. Sonny Perdue declined to comment on this subject, referring questions to the chief justice of the Georgia Supreme Court because the judiciary is an independent branch of government, his spokesman said.

Georgia Supreme Court Chief Justice Norman S. Fletcher also declined to comment, saying through a spokesman that he feared any comment might affect his ability to preside over cases that might challenge senior judgeships. The matters of state law and budget, the spokesman quoted him as saying, are for the General Assembly.

Another on the way

Soon, the Augusta Judicial Circuit will have another senior judge.

Judge Pickett is set to retire Jan. 1. The Columbia County Commission already has agreed to provide office space for him and to pay his secretary's salary of about $40,000, commission Chairman Ron Cross said.

Because Judge Pickett lives in Augusta, he would be able to collect nearly $600 from Georgia taxpayers for each day he drives to his new Columbia County Courthouse office, should he choose to charge the way Senior Judge Mulherin has.

Judge Pickett will already have at least one case to handle after his retirement. Judge Fleming assigned him the Ronald Burke death penalty case after Judge Pickett announced his plans to retire.

Judge Fleming also recently assigned him to criminal trials in Richmond County the week of Jan. 10, 10 days after his retirement.

State Sen. Casey Cagle, R-Gainesville, the chairman of the Finance Committee, said it's time for the Legislature to start asking questions about the use of senior judges, and to get the right answers. They certainly need to address the issues with the judicial branch, he said.

"It is a matter for the General Assembly," he said.

Mrs. Burmeister agreed.

"There have been questions raised ... that the judicial system in the state seems to be increasingly running without checks and balances," she said. "We get to the point, is this saying our (state) judges are relying on senior judges when they could be more productive?"

Reach Sandy Hodson at (706) 823-3226 or sandy.hodson@augustachronicle.com.