Opinion 34

The Judicial Qualifications Commission has been requested to issue an opinion concerning whether or not a person whose vocation is that of a police officer may also serve as a Justice of the Peace. 

Canon 1 of the Code of Judicial Conduct provides in part:

A Judge should avoid impropriety and the appearance of impropriety in all his activities.

Rule 1.1 Complying With the Law

Judges shall respect and comply with the law.

Rule 1.2 Promoting Public Confidence in the Judiciary

(A) Judges shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary.

Rule 2.4 External Influences on Judicial Conduct

. . .  

(B) Judges shall not permit family, social, political, financial, or other interests or relationships to influence the judge’s judicial conduct or judgment.

(C) Judges shall not convey or enable others to convey the impression that any person or organization is in a position to influence the judge.

Rule 2.11(A) provides in part:

(A) Judges shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned. . . .

Canon 3 provides:

Judges Shall Regulate Their Extrajudicial Activities to Minimize the Risk of Conflict with Their Judicial Duties.

The Commission recognizes that among the foremost and primary duties of a Justice of the Peace is that of issuing arrest and search warrants and the holding of commitment (probable cause) hearings. Ga. Code Secs. 27-102, 27-303 and 27-401.

On the basis of the Fourth Amendment’s provisions pertaining both to the issuance of warrants and to unreasonable searches and seizures, the Supreme Court of the United States has required that when a warrant for arrest or search is issued, the person issuing it must be a neutral and detached magistrate, and must be severed and disengaged from activities of law enforcement. See Coolidge v. New Hampshire, 403 U.S. 443, 29 L.Ed. 2d 564; Shadwick v. Tampa, 407 U.S. 345, 32 L.Ed. 2d 783; Jackson v. State, Ga. App. (No. 57724, decided May 17, 1979). The same rule applies to those conducting probable cause or commitment hearings, Gerstein v. Pugh, 420 U.S. 103, 43 L.Ed. 2d 54.  A police officer is supervised and controlled by the police department for which he works, and could not serve as a neutral and detached magistrate with regard to the issuance of warrants or the holding of commitment hearings.’ In serving in the dual capacity of police officer and Justice of the Peace, he would not be “complying with the law,” would not be “promoting public confidence in the integrity and impartiality of the judiciary,” would “convey the impression that others are in a special position to influence him,” would “risk conflict with his judicial duties,” and his “impartiality might reasonably be questioned.”

In view of the requirements of the aforementioned Canons, the Commission concludes that one whose vocation is that of a police officer cannot serve as a Justice of the Peace, for it cannot be seriously maintained that he could act independently of the police and prosecution.

[Pertinent Code of Judicial Conduct provisions: Canons 1 and 3, Rules 1.2(B), 2.4(C), 2.11(A). Cross reference to other relevant opinions for review: #70, #101, #137, #151, #162, #172, #179.]

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