Fulton County Chief Magistrate Judge Cassandra Kirk (left) and Fulton County Clerk of Superior and Magistrate Court Cathelene "Tina" Robinson.

A judge on Friday declined to throw out Fulton County Chief Magistrate Judge Cassandra Kirk's lawsuit against court clerk Cathelene "Tina" Robinson in a fight over the handling of Magistrate Court duties.

Lawyers for Robinson, the elected Fulton County Superior Court clerk—who was appointed to handle magistrate court duties by the county commission in 2016, with Kirk's approval and support—had filed a motion on the pleadings asking the judge to declare that some or all of Kirk's dozen demands were unreasonable and unenforceable.

The mandamus petition Kirk filed in November accused Robinson of ignoring her written directions concerning the assignment of clerical staff and the creation of a separate budget and demanded that she remove "Superior Court Clerk" logos and references from all magistrate court clerk's office signage, among other things. 

Holland & Knight partner Robert Highsmith Jr. pointed to Kirk's demands that Robinson not assign any of her staff who usually handle magistrate court matters to any other duties and that she respond to any of Kirk's queries within one business day as unreasonable and unsupported by the law delineating Robinson's duties.

Another demand, that Robinson clear any interaction with the media about the magistrate court clerk's office with Kirk, is an absurd infringement on the Robinson's ability to do her job, said Highsmith, who represents Robinson with firm colleague Jake Evans.

"I've never seen it to be illegal for one elected official to say another elected official can't engage with the media," Highsmith said.

Kirk's arguments have centered on a provision of state law relating to a chief magistrate's authority to appoint a clerk, who then serves "at the pleasure" of that judge.

But Robinson, an elected clerk in her own right, was assigned the job under another section relating to the appointment of superior court clerks to handle magistrate court duties, Highsmith said.

As an elected constitutional officer, Robinson's ministerial duties are defined by statute, and Kirk has no authority to expand or abridge them. Kirk's demands, Highsmith said, involve Robinson's discretionary authority to do her job as she sees fit. 

Under Kirk's reasoning, Highsmith said, Kirk could make any demand of Robinson, including ordering the clerk to pick up her laundry. 

Highsmith said Kirk's argument that she has no other avenue to address her concerns is also incorrect.

"The Fulton County Board of Commissioners decided they wanted an elected constitutional officer to serve" as magistrate court clerk, he said.

If Kirk is dissatisfied, "her remedy is to go before the Board of Commissioners," Highsmith added.

Further, said Highsmith, if there is political or voter dissatisfaction with Robinson's performance, "the voters can turn her out."

Kirk's attorney, Bondurant Mixson & Elmore partner John Raines IV,  said the case involved a simple matter of Kirk's statutory authority, which makes clear that the duties of the magistrate court clerk "shall be as assigned" by the chief magistrate.

There is no exception made for clerks appointed by the county commission or for those who also serve as superior court clerks, Raines said.

Raines pointed to a sentence in Robinson's answer to the petition in which she stated that she "refused to concede to the unfounded and unlawful demands" Kirk had made as evidence that she had violated the statute's requirements, he said.

The argument that Kirk could make frivolous or illegal demands "is not what's going on here," Raines said. 

The case "is not some petty office squabble," said Raines. "It's a fundamental dispute about what the statute means."

The case has been assigned to Cobb County Senior Judge G. Grant Brantley, who declined to grant Robinson's motion on the pleadings and set a tentative date of April 17 for a hearing on the mandamus petition.  

Before he left the bench, Brantley offered an observation: "The public would be well served if you could talk and work this out," he said. 

Present for the hearing was the executive director of the Council of Superior Court Clerks, Michael Holiman, who said his agency is likely to intervene as an interested party. 

Holiman said there about 40 superior clerks in Georgia who also serve as magistrate clerks and he has never seen a mandamus action used in such a manner.

"They're supposed to compel a public official to do their job, not how to do it," he said.