In the Supreme Court of Georgia



                                          Decided: October 6, 2014


           S14A0779. HEISKELL, COMR., et al. v. ROBERTS.


      NAHMIAS, Justice.

      Bruce Roberts filed suit against Walker County and its sole commissioner,

Bebe Heiskell (collectively, “Appellants”), claiming that the county underpaid

him for the 15 months that he served as judge of the State Court of Walker

County. Appellants denied any underpayment, denied Roberts’s request to pay

his legal fees in connection with the case, and filed counterclaims alleging

among other things that the county actually overpaid Roberts each month and

was entitled to reimbursement for the overpayments. On cross-motions for

summary judgment, the trial court granted Roberts’s mandamus claim and

ordered the county to pay him $78,878.55 in unpaid salary; dismissed

Appellants’ counterclaims as barred by judicial immunity; and ordered the

county to pay Roberts’s attorney fees.
      As explained below, the trial court erred in granting summary judgment

on the mandamus claim to Roberts instead of to Appellants, in dismissing

Appellants’ counterclaim for reimbursement, and in granting attorney fees to

Roberts based on these erroneous rulings. However, the trial court properly

dismissed Appellants’ other counterclaims based on judicial immunity and

correctly ruled that the county could be required to pay attorney fees to Roberts

under OCGA § 9-15-14 based on the dismissed counterclaims. Accordingly, we

affirm the trial court’s judgment in part and reverse it in part, and we remand the

case for the entry of a more limited attorney fees award and to allow Appellants

the opportunity to pursue their counterclaim for reimbursement.

      1.    In 2010, Judge C. Donald Peppers, Sr. of the State Court of Walker

County was reelected to a four-year term of office that started on January 1,

2011. Effective June 30, 2011, Judge Peppers retired after 26 years in office;

at the time he retired, he was allegedly making $172,102.80 per year, although

a portion of his salary was reimbursed by Catoosa County for his service as a

part-time judge in that neighboring county. On September 16, 2011, Governor

Nathan Deal announced that he would appoint Bruce Roberts to fill the vacancy.



                                        2
      On September 30, 2011, Roberts met with Bebe Heiskell, Walker

County’s sole commissioner. Heiskell informed Roberts that the base salary for

the state court judge position was $60,000 per year, see Ga. L. 1994, p.

3726, § 1, but she allegedly offered to pay him at the rate of $100,000 per year,

slightly more than the $94,000 that he was making in his previous job. Roberts

requested $110,000, but Heiskell declined, citing budget constraints. Roberts

was sworn into office on October 3, 2011. He stood for election in the next

nonpartisan general election in July 2012, but he lost, meaning that his term of

office would end on the last day of 2012. During the period following his

defeat, Roberts dismissed about 60 traffic cases. The county paid Roberts at an

annualized rate of $100,000 for the 15-month period that he held office.

      On October 25, 2012, Roberts filed a complaint for mandamus and other

relief against Commissioner Heiskell (in her official capacity) and Walker

County. Roberts sought to recover the difference between what he was being

paid and what Judge Peppers would have been paid for the same period based

on the provision of Article VI, Section VII, Paragraph V of the Georgia

Constitution of 1983 that says:      “An incumbent’s salary, allowance, or

supplement shall not be decreased during the incumbent’s term of office.”

                                       3
Roberts also asked for the county to provide him with legal representation, but

the county did not do so. Appellants filed an answer and counterclaims for

breach of contract, “intentional infliction of monetary damages,” and intentional

infliction of emotional distress, all based on Roberts’s dismissal of the traffic

cases. Appellants later added a counterclaim seeking reimbursement of all

salary paid to Roberts at an annualized rate greater than $60,000; the alleged

overpayments totaled about $50,000.

      Roberts filed a motion for summary judgment, and Appellants filed a

cross-motion for partial summary judgment. After a hearing, the trial court

entered an order on October 30, 2013, granting Roberts’s mandamus claim and

directing Commissioner Heiskell to pay him $78,878.55 from county funds for

“salary due and unpaid,” dismissing Appellants’ counterclaims as barred by

judicial immunity, and requiring Appellants to pay Roberts’s attorney fees based

in part on Gwinnett County v. Yates, 265 Ga. 504 (458 SE2d 791) (1995), and

in part on OCGA § 9-15-14.1 The court also dismissed Walker County as a

defendant with respect to Roberts’s mandamus claim, but left the county as a



      1
          The amount of attorney fees has not yet been determined.

                                               4
defendant on Roberts’s claim for attorney fees based on Appellants’

counterclaims. Appellants filed a timely notice of appeal.2

       2.      Citing cases involving magistrate judges, the trial court held that

Roberts was entitled to the same compensation that Judge Peppers was receiving

because Roberts was appointed to the “unexpired term” of Judge Peppers that

began on January 1, 2011, and ended on December 31, 2014. In the trial court’s

view, Roberts’s appointment allowed him to serve the portion of Judge

Peppers’s four-year term that ran from the date that Roberts was sworn in,

October 3, 2011, through the end of 2012, with the requirement that he run in

and win the July 2012 election in order to serve the portion of Judge Peppers’s

term that ran from January 1, 2013, through the end of 2014. That is not,

however, the scheme that the 1983 Georgia Constitution established for the

terms of office for judges appointed to fill vacancies on our appellate, superior,

and state courts.


       2
          On February 17, 2014, Roberts filed a motion to dismiss the appeal on the ground that
Appellants were required to file an application for discretionary appeal and failed to do so, citing
OCGA § 5-6-35 (a) (10), which requires the filing of an application for “[a]ppeals from awards of
attorney’s fees or expenses of litigation under Code Section 9-15-14.” On March 10, we denied the
motion based on OCGA § 5-6-34 (d), which permits Appellants to challenge the attorney fees rulings
without filing an application as part of their direct appeal of the mandamus order authorized by
OCGA § 5-6-34 (a) (7). See Stancil v. Gwinnett County, 259 Ga. 507, 508 (384 SE2d 666) (1989).

                                                 5
       This case is controlled by several provisions of Section VII (“Selection,

Term, Compensation, and Discipline of Judges”) of Article VI (“Judicial

Branch”) of the 1983 Constitution. Paragraph I of the section says:

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

Paragraph III says that vacancies in these judicial offices will be filled by

gubernatorial appointment, and Paragraph IV then says that such an appointee

“shall serve until a successor is duly selected and qualified and until January 1

of the year following the next general election which is more than six months

after such person’s appointment.”

       The effect of these provisions is to create an entirely new and shortened

initial term of office for the appointed judge. Unlike persons appointed to fill

vacancies in most other public offices, appointees to state, superior, and

appellate judgeships do not serve out the “unexpired term” of their

predecessors.3 Rather, these judicial appointees must be elected before being

       3
          Thus, in contrast to the provisions of the Judicial Branch Article, the Executive Branch
Article says:

                                                6
entitled to serve a full four- or six-year term, although they are given at least six

months to serve before they have to stand for election. As this Court explained

in Perdue v. Palmour, 278 Ga. 217 (600 SE2d 370) (2004):

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

Id. at 220 (citation omitted).4


        When any public office shall become vacant by death, resignation, or otherwise, the
        Governor shall promptly fill such vacancy unless otherwise provided by this
        Constitution or by law; and persons so appointed shall serve for the unexpired term
        unless otherwise provided by this Constitution or by law.

Art. V, Sec. II, Par. VIII (a) (emphasis added). See also Par. VIII (b) (providing that in case of death
or withdrawal of the winner of an election for Secretary of State, Attorney General, State School
Superintendent, Commissioner of Insurance, Commissioner of Agriculture, or Commissioner of
Labor, the incoming Governor shall appoint, with Senate confirmation, a replacement to serve until
the next general election and until a successor has been elected and qualified to serve out “the
balance of the unexpired term” (emphasis added)).
        4
         We note that the “at least approximately eight months” calculation in Palmour was based
on general elections for these judges being held in November, as they were in 2004. These judges
are now elected in the nonpartisan general election held jointly with the partisan general primary

                                                   7
       Thus, there is no longer such a thing as an appointment to serve out the

“unexpired term” of an appellate, superior, or state court judge. See id. at 221

(Carley, J., concurring) (“[U]nlike the prior constitutional provisions . . . , Art.

VI, Sec. VII, Par. IV of the Georgia Constitution of 1983 eliminates the

unexpired term of the vacant office . . . .”). For an appointed state court judge,

the “definite extent of time [his] elective office may be held,” Lee v. City of

Villa Rica, 264 Ga. 606, 609 (449 SE2d 295) (1995) (defining “term of office”

in this way), is not determined at all by his predecessor’s term of office, and

indeed cannot be determined until he is appointed and assumes the office.

       Like the trial court, Roberts relies on cases involving the salaries of

magistrate judges who were appointed to fill vacancies. See Pike County v.

Callaway-Ingram, 292 Ga. 828 (742 SE2d 471) (2013); Lee v. Peach County

Bd. of Comrs., 269 Ga. 380 (497 SE2d 562) (1998). This reliance is misplaced.

The same Article and Section of the 1983 Constitution that abolished the old

system for the selection and terms of office of appellate, superior, and state court

judges explicitly preserved the then-existing system for “[a]ll other judges . . .



earlier in even-numbered years – on July 31 of 2012, for example. See OCGA § 21-2-138.

                                             8
until otherwise provided by local law” and authorized the filling of “[v]acancies

. . . in the magistrate, probate, and juvenile courts” by methods other than

gubernatorial appointment if “otherwise provided by law.” Art. VI, Sec. VII,

Par. I and III. “[T]o implement certain changes required by Article VI of the

[1983] Constitution,” Ga. L. 1983, p. 884, § 1-1, the General Assembly enacted

a law concerning magistrate courts that contained the following provision:

      Unless otherwise provided by local law, a vacancy in the office of
      chief magistrate shall be filled by an appointment by majority vote
      of the judges of superior court for the remainder of the unexpired
      term; and a vacancy in the office of any other magistrate shall be
      filled by an appointment by the chief magistrate with the consent of
      the judges of superior court for the remainder of the unexpired
      term. . . .

Id., § 2-1, at pp. 888-889 (codified at OCGA § 15-10-20 (e)) (emphasis added).

At the same session, the General Assembly passed a law concerning state courts

that contained the following provision:

      In the event of a vacancy in the office of judge of the state court for
      any reason except the expiration of the term of office, the Governor
      shall appoint a qualified person who shall serve as provided in
      Paragraphs III and IV of Section VII of Article VI of the
      Constitution.

Ga. L. 1983, p. 1419, § 2, at p. 1422 (codified as amended at OCGA § 15-7-23)

(emphasis added). Unlike the statute concerning magistrate court judges, the

                                        9
statute concerning state court judges does not refer to “the remainder of the

unexpired term,” because under the 1983 Constitution, that concept no longer

has any application to judges appointed to fill vacancies on state courts.

      Accordingly, as a state court appointee, Roberts’s initial (and, as it turned

out, only) “period of service,” Palmour, 278 Ga. at 219, was from his swearing

in on October 3, 2011, through December 31, 2012. Had Roberts won the

election in July 2012, he would have served a new, full, four-year term as a state

court judge starting on January 1, 2013, and continuing through December 31,

2016; he would not have served only through the end of 2014, which is when

Judge Peppers’s four-year term that started on January 1, 2011, would have

ended had he not retired. In short, Roberts did not become the incumbent

serving Judge Peppers’s term of office; he served his own, 15-month-long term.

And it is undisputed that Roberts was paid the same salary for the entire 15

months. Thus, there was no violation of the provision in Article VI, Section

VII, Paragraph V that prevents an incumbent judge’s salary from being

decreased during his term of office, and we therefore reverse the trial court’s

grant of summary judgment to Roberts and its denial of summary judgment to

Appellants on the mandamus claim.

                                       10
      3.    Appellants contend that the trial court erred in ruling that their

counterclaims were barred by judicial immunity. Judges are “immune from

liability in civil actions for acts performed in their judicial capacity.” Earl v.

Mills, 275 Ga. 503, 504 (570 SE2d 282) (2002). This doctrine of judicial

immunity, which the Supreme Court of the United States has said “is as old as

the law,” is essential to the impartial administration of justice. Randall v.

Brigham, 74 U.S. (7 Wall.) 523, 536 (19 LE 285) (1869). See also Calhoun v.

Little, 106 Ga. 336, 339 (32 SE 86) (1998) (describing the doctrine of judicial

immunity as “firmly fixed in the jurisprudence of both England and the United

States”). Judicial immunity is overcome in only two situations:

      First, a judge is not immune from liability for nonjudicial actions,
      i.e., actions not taken in the judge’s judicial capacity. Second, a
      judge is not immune for actions, though judicial in nature, taken in
      the complete absence of all jurisdiction.

Mireles v. Waco, 502 U.S. 9, 11-12 (112 SCt 286, 116 LE2d 9) (1991) (citations

omitted). Accord Wilson v. Moore, 275 Ga. App. 493, 494 (621 SE2d 507)

(2005). See also In re Morales, 282 Ga. 471, 472 (651 SE2d 84) (2007) (citing

Mireles and noting “the well settled law that judges acting within their judicial

capacity are immune from suit for money damages”).


                                       11
            (a)   Appellants’ counterclaims against Roberts for breach of

contract, “intentional infliction of monetary damages,” and intentional infliction

of emotional distress were based on his dismissal of about 60 traffic cases after

his defeat in the July 2012 general election. The trial court correctly concluded

that Roberts was exercising a judicial function when he dismissed the traffic

cases, because adjudication of such cases is a function normally performed by

a judge. See Mireles, 502 U.S. at 12-13. Moreover, Appellants do not dispute

that the State Court of Walker County has subject matter jurisdiction over traffic

cases such as the ones that Roberts dismissed, much less claim that he acted in

the “complete absence of all jurisdiction” over such cases. Id. at 12.

      Appellants’ argument that judicial immunity applies only to “claims”

brought against a judge and not to “counterclaims” brought against a judge is

baseless. A “counterclaim” is simply the way that a defendant brings a “claim”

against the plaintiff in an existing lawsuit. OCGA § 9-11-13 (a), (b). Such

claims do not avoid immunity defenses because they are labeled

“counterclaims.” See OCGA § 9-11-13 (d); Dept. of Human Resources v.

Money, 222 Ga. App. 149, 149 (473 SE2d 200) (1996) (applying sovereign

immunity to counterclaims). See also Hudson View II Assocs. v. Miller, 664

                                       12
NYS2d 223, 224 (N.Y. Sup. Ct. 1997) (applying judicial immunity to

counterclaims); Walton v. Watts (In re Swift), 185 B.R. 963, 970 (Bankr. N.D.

Ga. 1995) (applying quasi-judicial immunity to counterclaims). Accordingly,

the trial court properly dismissed the counterclaims based on Roberts’s handling

of traffic cases as barred by judicial immunity.

            (b)   Appellants’    counterclaim to      recover   alleged   salary

overpayments to Roberts is a different matter.         The trial court did not

specifically address this counterclaim in its order, but receiving an incorrectly

calculated paycheck plainly is not a judicial function. See Forrester v. White,

484 U.S. 219, 227-229 (108 SCt 538, 98 LE2d 555) (1988) (discussing the

distinction “between truly judicial acts, for which immunity is appropriate, and

acts that simply happen to have been done by judges,” and explaining that it is

“the nature of the function performed, not the identity of the actor who

performed it,” that informs the immunity analysis). See also Maddox v. Hayes,

278 Ga. 141, 142 (598 SE2d 505) (2004). Thus, judicial immunity did not bar




                                       13
Appellants’ counterclaim for reimbursement, and we therefore reverse the

dismissal of that counterclaim.5

       4.      In light of the above holdings, the trial court’s award of attorney

fees to Roberts must be limited.

               (a)     The trial court ordered Appellants to pay Roberts’s reasonable

attorney fees resulting from the mandamus action pursuant to Gwinnett County

v. Yates, 265 Ga. 504 (458 SE2d 791) (1995), in which this Court held:

       [W]here . . . an official, acting in his official capacity, is required to
       hire outside counsel to assert a legal position the local government
       attorney cannot (because of a conflict in representing the local
       government) or will not assert, and the official is successful in
       asserting his or her position, the local government must pay the
       official’s attorney fees. This is not because of any bad faith or
       improper conduct on the part of the local government . . . . Rather,

       5
          Other than holding that the reimbursement counterclaim is not barred by judicial immunity,
we express no opinion on the merits of the claim. We note, however, that the claim may depend at
least in part on whether the annualized $40,000 supplement paid to Roberts above the $60,000 base
salary established by local law was properly approved and documented in a budget or other county
ordinance. OCGA § 15-7-22 says, “Judges of the state courts shall be compensated from county
funds as provided by local law. . . .,” which for Walker County says that “[t]he judge of said state
court shall receive a salary of $60,000.00 per annum,” Ga. L. 1994, p. 3726, § 1. OCGA § 15-7-22
also says, “The county governing authority is authorized to supplement the compensation thus fixed
to be paid to the judges of the state court of that county,” but even in a county with a sole
commissioner form of government, ordinances must be put in writing and filed in the official records
of the commissioner in order to be effective. See Mortgage Alliance Corp. v. Pickens County, 294
Ga. 212, 217-218 (751 SE2d 51) (2013). Moreover, the county cannot be estopped from seeking
reimbursement based on any commitments that Commissioner Heiskell may have made to Roberts
in the exercise of an unconferred power. See City of Baldwin v. Woodard & Curran, Inc., 293 Ga.
19, 27-29 (743 SE2d 381) (2013); Maddox, 278 Ga. at 142.

                                                14
      attorney fees in this instance are simply an expense of government
      operation.

Id. at 508-509. As Yates says, the official’s entitlement to attorney fees depends

on his success in asserting his position in court. See Board of Comrs. of

Dougherty County v. Saba, 278 Ga. 176, 179 (598 SE2d 437) (2004). Because

we hold in Division 2 above that the trial court erred in granting summary

judgment on the mandamus claim to Roberts instead of to Appellants, Roberts

has not prevailed on that claim, and we therefore reverse the attorney fees award

based on Yates.

            (b)   The trial court also ordered Appellants to pay Roberts’s

reasonable attorney fees incurred in defending against Appellants’

counterclaims. This award was based on OCGA § 9-15-14, “which authorizes

a trial court to award ‘reasonable and necessary’ attorney fees and litigation

costs in civil cases against a party that has engaged in abusive litigation.”

Williams v. Becker, 294 Ga. 411, 413 (754 SE2d 11) (2014). OCGA § 9-15-14

(a) requires an assessment of attorney fees and litigation expenses against any

party that has “asserted a claim . . . with respect to which there existed such a




                                       15
complete absence of any justiciable issue of law or fact that it could not be

reasonably believed that a court would accept [the claim].”

      The trial court concluded that Appellants’ counterclaims fit this

description. We agree that the counterclaims for breach of contract, “intentional

infliction of monetary damages” (whatever that is), and intentional infliction of

emotional distress based on Roberts’s dismissal of the traffic cases were totally

lacking in legal justification because they were unquestionably barred by

judicial immunity. However, as discussed in Division 3 (b) above, the trial

court erred in dismissing Appellants’ counterclaim for reimbursement of alleged

salary overpayments to Roberts. It follows that the court erred in awarding

Roberts attorney fees incurred in defending against that counterclaim, and we

therefore reverse the award made under § 9-15-14 to the extent that it was based

on the reimbursement counterclaim. See Hardman v. Hardman, Case No.

S14A1187 (decided Sept. 22, 2014), 2014 WL 4667538, at *6. On remand, the

trial court should enter an award based solely on Roberts’s reasonable attorney

fees and litigation expenses incurred in defending against the other three

counterclaims. See id.



                                       16
            (c)   Finally, Appellants argue that the trial court erred in failing

to dismiss the county as a defendant with respect to Roberts’s claim for attorney

fees under OCGA § 9-15-14 because the county was not a proper defendant as

to his mandamus claim, as the trial court held. However, § 9-15-14 (a) requires

a trial court to award reasonable attorney fees to “any party against whom

another party has asserted a claim” that is so completely lacking in legal or

factual substance that it could not reasonably be believed that a court would

accept the claim. The statute does not exclude frivolous claims asserted by a

party that believes it should not have been named in the lawsuit, and Appellants

have pointed us to no authority supporting such an exception. Indeed, with

respect to the counterclaims it brought, the county was acting as a plaintiff, not

a defendant. Accordingly, the trial court did not err in dismissing the county as

a defendant only with respect to Roberts’ s mandamus claim, leaving the county

as a defendant on his claim for attorney fees based on the groundless

counterclaims that the county elected to file.

      Judgment affirmed in part and reversed in part, and case remanded with

direction. All the Justices concur.



                                       17
