(Code 1981, §15-10-20, enacted by Ga. L. 1983, p. 884, § 2-1; Ga. L. 1984, p. 22, § 15; Ga. L. 1984, p. 442, § 1; Ga. L. 1984, p. 1096, § 2; Ga. L. 1985, p. 149, § 15; Ga. L. 1985, p. 636, § 1; Ga. L. 1994, p. 607, § 2; Ga. L. 1996, p. 1231, § 3; Ga. L. 2019, p. 658, § 2/HB 257.)
The 2019 amendment, effective July 1, 2019, inserted "or her" near the end of the last sentence of subsection (a); deleted the former first sentence of subsection (b), which read: "The term of office of any magistrate taking office prior to January 1, 1985, shall expire on December 31, 1984, except that this subsection shall not operate to shorten any term of office in violation of Article VI, Section X, Paragraph II of the Constitution."; deleted former subsection (c); redesignated former subsections (d) through (h) as present subsections (c) through (g), respectively; inserted "or she" throughout present subsection (c); in present subsection (e), substituted "subsection (d)" for "subsections (c) and" in the middle and substituted "subsection (d)" for "subsection (e)" near the end; in present subsection (g), in the first sentence, twice inserted "or her" and substituted "$100,000.00" for "$25,000.00"; and deleted former subsection (i), relating to removal of judge of the superior courts of this state and powers and duties of special judge of the magistrate court.
Cross references.- Certain officials to become magistrates by operation of law, § 15-10-120.
Disqualification of judge or chief magistrate, Uniform Rules for the Magistrate Courts, Rules 4.2 and 4.3.
Editor's notes.- Ga. L. 1983, p. 884, § 7-4, not codified by the General Assembly, provides: "With respect to each officer other than a probate judge who becomes a magistrate on July 1, 1983, pursuant to Article VI, Section X, Paragraph II of the Constitution, the position or office in which such officer was formerly serving shall be abolished for all purposes immediately upon the expiration of the term of the incumbent; and no person shall be selected to fill such office thereafter. This section shall not operate to shorten the term which any such officer will serve as magistrate pursuant to said paragraph of the Constitution and shall not operate to prevent any such officer from thereafter being selected as a magistrate."
JUDICIAL DECISIONS
Editor's notes.
- In light of the similarities of the statutory provisions, decisions under former Civil Code 1895, § 4072 and Civil Code 1910, §§ 4658 and 6524 are included in the annotations for this Code section. Many of the following decisions were rendered under former Code Section 15-10-57 or predecessors thereof, relating to procedure when justices of the peace are disqualified.
Constitutionality.
- As the constitution permits selection and terms of offices of magistrate judges to be varied by local law, the provisions of O.C.G.A. §§ 15-10-20,15-10-23,15-10-100, and15-10-105 are not unconstitutional. In re Magistrate Court, 262 Ga. 334, 418 S.E.2d 42 (1992).
Constitutional jurisdictional requirements.
- Requirement of Ga. Const. 1983, Art. VI, Sec. III, Para. I, that "magistrate . . . courts shall have uniform jurisdiction as provided by law" relates to jurisdiction rather than to the method of selection and terms of office of magistrates. State v. Boatright, 256 Ga. 23, 342 S.E.2d 674 (1986).
If justice of the peace is disqualified, another justice of the peace may preside in that justice's district. Simpkins & Co. v. Hester, 3 Ga. App. 160, 59 S.E. 322 (1907) (decided under former Civil Code 1895, § 4072).
Hearing must be at regular place of holding court. McClatchey v. Bryan, 144 Ga. 292, 86 S.E. 1085 (1915) (decided under former Civil Code 1910, § 6524).
Effect of judgment of unauthorized justice of the peace.
- Judgment rendered by a justice of the peace unauthorized to preside in the district where it was rendered is a nullity and of no effect. Simpkins & Co. v. Hester, 3 Ga. App. 160, 59 S.E. 322 (1907) (decided under former Civil Code 1895, § 4072).
Disqualification after appeal.
- Justice of the peace of the same district may preside where the justice of the peace who tried the case is disqualified, after an appeal from the justice's judgment has been entered. Harrison v. Perry, 90 Ga. 206, 15 S.E. 742 (1892) (decided under former law).
If justice of the peace presides in another's court, the justice's authority will be presumed in the absence of proof to the contrary. Carter & Ford v. Griffin, 113 Ga. 633, 38 S.E. 946 (1901) (decided under former Civil Code 1895, § 4072).
Justice of the peace related to a party may issue execution to foreclose landlord's lien. Savage v. Oliver, 110 Ga. 636, 36 S.E. 54 (1900) (decided under former Civil Code 1895, § 4072).
Mandamus to compel calling of election.
- Mandamus will lie to compel justice of the peace to call election on application of citizens. Killorin v. Mitchell, 141 Ga. 524, 81 S.E. 443 (1914) (decided under former Code 1910, § 4658).
Office of assistant magistrate not created.
- In a defendant's prosecution on charges of possession of marijuana with intent to distribute and possession of cocaine with intent to distribute, a search warrant issued by an assistant magistrate at the magistrate's direction was invalid because the assistant magistrate could not be considered a de facto officer as no such office had been created by the county commissioners or by the superior court judges under O.C.G.A. § 15-10-20(a). Beck v. State, 283 Ga. 352, 658 S.E.2d 577 (2008).
Cited in Taylor v. Public Convalescent Serv., 245 Ga. 805, 267 S.E.2d 242 (1980); Dudley v. Rowland, 271 Ga. 176, 517 S.E.2d 326 (1999).
OPINIONS OF THE ATTORNEY GENERAL
Editor's notes.
- In light of the similarity of the statutory provisions, opinions under former Code 1933, §§ 24-408 and 24-1008 and former Code Section 15-10-6 or predecessors thereof, relating to filling of vacancies in office of justice of the peace, are included in the annotations for this Code section.
Effect of certification under former Georgia Justice Courts Training Council Act.- Justice of the peace who was certified under the former Georgia Justice Courts Training Council Act as of July 1, 1983, became a magistrate on that date. 1983 Op. Att'y Gen. No. 83-53.
Justice of the peace in office on June 30, 1983, who was not certified under the former Georgia Justice Courts Training Council Act as of that date, did not become a magistrate of the successor court on July 1, 1983. 1983 Op. Att'y Gen. No. 83-53.
If a justice of the peace position is vacant on June 30, 1983, it may not be filled. 1983 Op. Att'y Gen. No. 83-53.
Term of office.- Magistrate assuming office on July 1, 1983, by virtue of the magistrate's previous position serves a term as magistrate identical to the original term of the magistrate's former judicial office. 1983 Op. Att'y Gen. No. 83-59.
Resignation procedures.- Chief magistrates should submit their resignations to the judges of the superior court and magistrates should submit their resignations to the chief magistrate. 1983 Op. Att'y Gen. No. 83-53.
If no one is elected in special election, the offices of justice of the peace and constable must be filled by election rather than appointment. 1969 Op. Att'y Gen. No. 69-59 (decided under former Code 1933, § 24-408).
Call another election if vacancy not filled.- If an election has been legally ordered to fill a vacancy in the office of justice of the peace, and none is bona fide held at the time and place designated, such vacancy would have to be filled by another special election called by the ordinary (now probate judge) rather than by appointment by the ordinary. 1968 Op. Att'y Gen. No. 68-508 (decided under former Code 1933, § 24-408).
It is the duty of the probate judge to fill vacancies in office of justice of the peace when an election does not fill the vacancy. 1945-47 Op. Att'y Gen. p. 78; 1957 Op. Att'y Gen. p. 54 (decided under former Code 1933, § 24-408).
Acts of justice of the peace holding over valid.- Generally, the acts of a de facto officer are valid and if the term of a justice of the peace has expired and no one has been duly elected and commissioned to fill the office, the official acts of the justice whose term has expired would be those of a de facto officer. 1948-49 Op. Att'y Gen. p. 479 (decided under former Code 1933, § 24-408).
Duty to ascertain if justice of the peace refuses to act.- Justice of the peace, when presented with an action stating that the other justice of the peace refuses to serve, should satisfy oneself by taking the matter up with the justice of the peace in the adjoining district and actually ascertain if the justice refuses to act in the matter. 1950-51 Op. Att'y Gen. p. 20 (decided under former Code 1933, §§ 24-408 and 24-1008).
State court judge may not simultaneously hold the office of chief magistrate. 1983 Op. Att'y Gen. No. U83-36.
Sitting magistrate may be a candidate for chief magistrate but would be required to resign the former magistrate position before assuming the new office. 1983 Op. Att'y Gen. No. 83-59.
Probate judge as chief magistrate.- If the General Assembly has so provided by local law, the probate judge is to serve as the chief magistrate. If there is no such local law, with the consent of the probate judge, the superior court may appoint the probate judge as chief magistrate until January 1, 1985. 1983 Op. Att'y Gen. No. 83-59.
Probate judge may be chief magistrate.
- General law does not prohibit the probate judge from being separately elected and simultaneously holding the office of chief magistrate even if there is no specific authorization by local Act under subsection (g) (now subsection (f)) of O.C.G.A. § 15-10-20. 1984 Op. Att'y Gen. No. 84-26.
Justice of the peace as chief magistrate.
- Certified justice of the peace is eligible to be appointed chief magistrate pursuant to O.C.G.A. § 15-10-120 but a noncertified justice of the peace is eligible for appointment only if the requirements of O.C.G.A. § 15-10-22 have been met. 1983 Op. Att'y Gen. No. 83-59.
Chief magistrate seeking election to city council.- Since the office of member of the City Council of Lincolnton began more than 30 days prior to the expiration of the candidate's office as Chief Magistrate for Lincoln County and since there was no specific authorization by law permitting a person to hold the offices of magistrate and city councilmember simultaneously, the candidate's office as Chief Magistrate for Lincoln County would be declared vacant by operation of law pursuant to Ga. Const. 1983, Art. II, Sec. II, Par. V, upon the candidate qualifying to seek the office of member of the City Council of Lincolnton. 1985 Op. Att'y Gen. No. U85-41.
Resignation of probate judge as chief magistrate.- When the probate judge also serves as chief magistrate by operation of law, the office holder may not resign as chief magistrate while continuing to hold the office of probate judge. 1985 Op. Att'y Gen. No. U85-46.