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Opinion 70

The Judicial Qualifications Commission has been requested to issue an opinion concerning whether or not a magistrate can serve as a constable in the same court in which he presides as the Magistrate.

O.C.G.A. § 15-10-105(d) clearly authorizes a magistrate to also serve as clerk in the court in which he presides, but O.C.G.A. § 15-10-100, which deals with the appointment of constables, contains no such authorization. As a matter of fact, the statutes rather clearly contemplate a constable other than the presiding Magistrate. A somewhat comparable situation was dealt with in Opinion No. 34, where the Commission concluded that a police officer should not serve as a Justice of the Peace because his “impartiality might reasonably be questioned.” A magistrate serving in his own court has overtones of the same problem in that his involvement as constable with execution of the processes of the court denies to him the appearance of detachment and impartiality which is essential to the proper discharge of his judicial duties as Magistrate of the Court. For that reason, the Commission has concluded that a magistrate should not serve as constable in the court in which he is presiding.

[Pertinent Code of Judicial Conduct provisions: Canons 1, 3, Rules 1.2(B), 2.4(B), 2.11(A). Cross reference to other relevant opinions for review: #21, #34, #101, #137, #151, #162, #172, #179.]

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