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Opinion 29

An opinion has been requested of the Commission as to whether a Justice of the Peace should resign his office in order to run for Solicitor of a State Court.

We think this question should be answered in the affirmative in view of Canon 7(A)(3) which provides that:

A judge should resign his office when he becomes a candidate either in a party primary or in a general election for a non-judicial office. . . .

A Justice of the Peace is a judicial officer. A Solicitor is a non-judicial officer.

The Commission has also been asked for its opinion as to whether, notwithstanding the requirement of Canon 7(A)(3) and the Justice of the Peace’s resignation pursuant thereto, he would be permitted or required to perform the duties of Justice of the Peace until his successor is appointed and qualified.

In the foregoing connection, our attention has been called to the decision in Bates v. Bigby, 123 Ga. 727, 51 S. E. 717, as well as the provisions of Code Sec. 89-9907.

In the Bates case, the court held that:

A notary public and ex-officio justice of the peace, although his resignation is tendered to and accepted by the Governor, continues in office, under the statute of this State, until his successor is appointed and qualified.

Code 89-9907 provides in part:

Any . . . justice of the peace, who shall be charged . . with willfully refusing or failing to preside in or hold his court at regular terms thereof or when it is his duty under the law to do so shall be punished as for a misdemeanor and shall be removed from office.

While the decision in Bates holds that it would be permissible for a Justice of the Peace who has resigned to continue to act until his successor is appointed and qualified, it is the Commission’s opinion that in view of the requirements of Canon 7(A)(3) the Justice of the Peace who has resigned pursuant thereto to run for a non-judicial office should not continue to act in such capacity, nor would his failure to do so constitute a violation of Code Sec. 89-9907.

[Pertinent Code of Judicial Conduct provisions: Canons 1, 7(A)(1). Cross reference to other relevant opinions for review: #26, #39, #118.]

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