2021 Georgia Code
Title 15 - Courts
Chapter 10 - Magistrate Courts
Article 2 - Magistrates
§ 15-10-20. Number; Selection; Term; Filling Vacancies; Chief Magistrate; Bonds

1. Each magistrate court shall have a chief magistrate and may have one or more other magistrates. Such magistrates shall be the judges of the magistrate court and shall be known as magistrates of the county. Unless otherwise provided by local law, the number of magistrates in each county shall be fixed from time to time by majority vote of the judges of the superior court of the county, but no magistrate shall be removed from office during a term of office except for cause as provided by Code Sections 15-10-24 and 15-10-25. The number of magistrates authorized for the county shall be one magistrate until increased by the judges of superior court or by local law; but this subsection shall not operate to remove a magistrate from office during his or her term of office.
2. The term of office of any magistrate taking office on or after January 1, 1985, shall be for four years beginning on the first day of an odd-numbered year, except that in selecting magistrates to fill newly created positions or if otherwise necessary, a magistrate may be selected for a term of less than four years to expire on the last day of an even-numbered year.
3. Unless otherwise provided by local law, all magistrates taking office on or after January 1, 1985, shall be selected as provided in this subsection. The chief magistrate shall be elected by the voters of the county at the general election next preceding the expiration of the term of the incumbent chief magistrate, in a partisan election in the same manner as county officers are elected, for a term beginning on the first day of January following his or her election. His or her successors shall likewise be elected quadrennially thereafter for terms beginning on the first day of January following their election. Magistrates other than the chief magistrate shall be appointed by the chief magistrate with the consent of the judges of superior court. The term of a magistrate so appointed shall run concurrently with the term of the chief magistrate by whom he or she was appointed.
4. 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. If, however, a vacancy occurs which does not reduce the number of magistrates for the county below the number of magistrates authorized for the county, then such vacancy shall not be filled.
5. The General Assembly may by local law provide for the number of magistrates of a county, provide for a different method of selecting magistrates than that specified in subsection (d) of this Code section, and provide for a different method of filling vacancies than that specified in subsection (d) of this Code section.
6. The General Assembly may at any time provide by local law that the probate judge shall serve as chief magistrate or magistrate and provide for compensation of the probate judge in his or her capacity as chief magistrate or magistrate; and in such a case the chief magistrate or magistrate shall not be separately elected but shall be the probate judge.
7. Each magistrate taking office after July 1, 1985, shall before entering on the performance of his or her duties execute bond in the amount of $100,000.00 for the faithful performance of his or her duties. Each magistrate in office on July 1, 1985, shall execute such a bond not later than September 1, 1985. The amount of bond required of the magistrate or magistrates of any county may be increased by local law. Such bonds shall be subject to all provisions of Chapter 4 of Title 45 in the same manner as bonds of other county officials. The premiums due on such bonds shall be paid by the fiscal authority of the county out of county funds.

(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.

- 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.

- 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.

- 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).

- 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).

- 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).

- 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 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).

- 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.

- 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.

- 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.

- 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).

- 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).

- 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).

- 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.

- 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.

- 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.

- 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.

- 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.

- 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.