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Probate Court may continue jury trials

Dougherty County Probate Judge Nancy Stephenson

Dougherty County Probate Judge Nancy Stephenson

ALBANY, Ga. — What a difference a word can make, and a short one at that.

The Georgia Supreme Court has upheld the Dougherty County Probate Court’s grant of a woman’s request for a jury trial to determine the validity of her uncle’s latest will, in which he had replaced her with a friend and neighbor as the primary beneficiary of his estate.

The legal issue in Ellis v. Johnson et al. is whether, under state law, a Probate Court had the authority to grant a jury trial. Under Official Code of Georgia 15-9-120, a person has the right to a jury trial in a Probate Court if the court is in a county having a population of more than 96,000 persons according to the United States decennial census of 1990 or any future such census. According to the 2010 census, Dougherty County’s population had declined below that mark to 94,565 persons.

On March 4, 2011, Dougherty County Probate Court Judge Nancy Stephenson granted a request for a jury trial to Kendall Hash to determine the rightful beneficiary of her uncle’s estate. Shortly after that court hearing, the decision was appealed to the Georgia Supreme Court. The appeal argued, among other things, that the Dougherty County Probate Court no longer had the required population to legally order jury trials.

Stephenson argued that by having once qualified for the right during the specifically mentioned 1990 census, Dougherty was therefore qualified in the future, regardless of any population change.

In Tuesday’s decision, however, Justice David Nahmia wrote, “For more than 70 years, this court has held that when a statutory classification is based on a county’s having a specified population under a particular census or any future census, the use of the disjunctive ‘or’ creates the required elasticity, setting a starting population but then permitting counties to move into or fall out of the class based on the latest census.”

As part of the challenge, it was argued that the statute is an unconstitutional special law that does not apply uniformly to everyone because the language does not state that a county loses the authority to conduct jury trials if its population falls below the threshold.

“I was sort of hopeful, but I had an idea that (her approach) wouldn’t work,” Stephenson said.

While the Georgia Supreme Court found errors in the reasoning of the Dougherty County Probate Court, it affirmed its judgment in ruling that OCGA 15-9-120 (2) is a constitutional general law, rather than an unconstitutional special law under the right-for-any-reason doctrine. It should be noted, Stephenson said, that the Tuesday ruling is an interlocutory decision by the court and is subject to change under further challenge.

The Dougherty County Probate Court has the jurisdiction to hold jury trials until July 1, 2012 because the 2010 census does not become effective for purposes of 15-9-120 until that date.

Further, in response to the issue of decreasing county population, Gov. Nathan Deal recently signed into law HB 534, introduced by state Rep. Carol Fullerton, D-Albany. Known by some as “Nancy’s Law,” the new legislation takes effect on July 1, 2012 and will amend 15-9-120 to a lower threshold of 90,000 persons, keeping Dougherty County in the class and allowing the Probate Court to hold jury trials.

“It’s a little like (Isaac) Newton’s law of inertia,” Stephenson said, “This way everything stays the same, and that’s the way it should be.”