Alabama Advisory Opinions September 12, 2013: AGO 2013-069 (September 12, 2013)

Advisory Opinion Text

Honorable Steven L. Reed

Montgomery County Judge of Probate

Post Office Box 223

Montgomery, Alabama 36101

Probate Judges - Electors -Attorneys - Temporary Judges - Montgomery County

For purposes of Act 2009-459, "qualified elector" means a registered voter of Montgomery County. Act 2009-459 does not require that qualified electors appointed to the position of temporary judge of probate be licensed to practice law in Alabama. Act 2009-459 permits the appointment of classified service employees and the Chief Probate Clerk who are licensed to practice law in Alabama to the position of temporary judge of probate regardless of their voter registration status.

Dear Mr. Reed:

This opinion of the Attorney General is issued in response to your request.

QUESTIONS

For purposes of Act 2002--291 and Act 2009-459, what is the definition of "qualified elector?"

Must a "qualified elector" appointed as a temporary judge of probate pursuant to Act 2002-291 and 2009-459 be a licensed attorney?

Is an employee of the Montgomery County Probate Court eligible to serve as a temporary judge of probate if the employee is not a licensed attorney?

FACTS AND ANALYSIS

Act 2002-291, in pertinent part, states as follows:

The Judge of Probate of Montgomery County may appoint from the qualified electors of Montgomery County one or more temporary judges of probate to serve contemporaneously with him or her when the elected judge of probate finds that the temporary appointments are necessary because of calendar congestion, complexity of issues, the prospects of an unduly long trial, or caseload management. No temporary appointment shall be for a term longer than 90 days. A temporary judge of probate shall be bonded and may be appointed for as many successive 90-day periods or fractions thereof as might be necessary, but shall not serve more than 100 days during any fiscal year.

2002 Ala. Acts No. 2002-291, 604.

The Legislature enacted Act 2009-459, which amended Act 2002-291, and provided an additional option for the Judge of Probate to appoint temporary judges of probate. The relevant portion of Act 2009-459 states as follows:

The Judge of Probate of Montgomery County may appoint from the qualified electors of Montgomery County one or more temporary judges of probate to serve contemporaneously with him or her when the elected judge of probate finds that the temporary appointments are necessary because of calendar congestion, complexity of issues, the prospects of an unduly long trial, or caseload management. No temporary appointment shall be for a term longer than 90 days. A temporary judge of probate shall be bonded and may be appointed for as many successive 90-day periods or fractions thereof as might be necessary, but shall not serve more than 100 days during any fiscal year. The Judge of Probate of Montgomery County may appoint a classified service employee of the court, or the unclassified service employee holding the position of Chief Probate Clerk, if the employee is licensed to practice law in this state, to be a temporary judge of probate.

2009 Ala. Acts No. 2009-459, 802-802 (emphasis added).

As to your first question, the term "qualified elector" is not defined in either Act 2002-291 or 2009-459. This Office, however, has previously observed that "[t]he term qualified elector is used throughout the Alabama Code and has generally been held, interpreted, or inferred to mean that the person must be a registered voter in the applicable county or precinct." Opinion to Honorable Walker Hobbie, Jr., Judge of Probate, Montgomery County, dated July 8, 1997, A.G. No. 97-00219. Accordingly, for purposes of Act 2002-291 and Act 2009-459, the term "qualified elector" means a registered voter of Montgomery County.

As to your second and third questions, under the established rules of statutory construction, words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used, a court is bound to interpret that language to mean exactly what it says. Ex parte Cove Properties, Inc., 796 So.2d 331, 333-34 (Ala. 2000). Applying this principle to Act 2009-459, the requirement to be "licensed to practice law in this state" only applies to classified service employees and the Chief Probate Clerk. The Judge of Probate may, therefore, appoint any registered voter of Montgomery County to the position of temporary judge of probate irrespective of the appointee's status as a licensed attorney. If licensed to practice law in Alabama, however, both classified service employees and the Chief Probate Clerk are eligible for appointment to the position of temporary judge of probate regardless of their voter registration status.

CONCLUSION

For purposes of Act 2009-459, "qualified elector" means a registered voter of Montgomery County.

Act 2009-459 does not require that qualified electors appointed to the position of temporary judge of probate be licensed to practice law in Alabama.

Act 2009-459 permits the appointment of classified service employees and the Chief Probate Clerk who are licensed to practice law in Alabama to the position of temporary judge of probate regardless of their voter registration status.

I hope this opinion answers your questions. If this Office can be of further assistance, please contact Ben Baxley of my staff.

Sincerely,

LUTHER STRANGE Attorney General.

BRENDA F. SMITH Chief, Opinions Division.