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Unofficial Opinion 95-6

Unofficial Opinion 95-6

February 23, 1995
To: 

Judge of the Probate Court
of Clinch County

Re: 

A state court judge who establishes residency outside of the county from which the judge is elected vacates this office as a matter of law.

You have requested my opinion as to whether a state court judge would vacate his or her office if the judge establishes residency outside of the county from which the judge is elected. It is my unofficial opinion that a state court judge would, as a matter of law, vacate his or her office under these circumstances.

Under Ga. Const. 1983, Art. VI, Sec. VII, Para. II(d), the state Constitution provides as one of the qualifications of being a judge, including a state court judge, that, "All judges shall reside in the geographical area in which they are selected to serve." The General Assembly reiterates this requirement in O.C.G.A. § 15-7-21(a)(1) which states that, except where no one who has properly qualified to run for this office, "[E]ach judge of the state court shall be a resident of the geographic area in which he is selected to serve." In this instance, "residency" should be interpreted to mean that place where a person intends to make their permanent domicile and home. See O.C.G.A. § 21-2-217(a)(1).

Giving these words their ordinary and common meaning, as required by O.C.G.A. § 1-3-1(b), it is the clear mandate of the statute that a state court judge shall maintain his or her residence in the county of their court. If the judge does not continue this residency requirement while holding office, then the office would become vacant by operation of law under O.C.G.A. § 45-5-1(a)(5) which provides, "All offices in the state shall be vacated . . . By the incumbent ceasing to be a resident of the state or of the county, circuit, or district for which he was elected." See also 1971 Op. Att'y Gen. U71-7.

This conclusion is mandated under the current law, as opposed to the conclusions under previous versions of O.C.G.A. § 45-5-1, i.e., Ga. Code Ann. § 89-501(5), which provided:

All offices in the State shall be vacated . . . By the incumbent ceasing to be a resident of the State, or of the county, circuit, or district for which he was elected. In the first case, the office shall be vacated immediately; in the latter cases, from the time the fact is judicially ascertained.

(Emphasis added); Smith v. Ouzts, 214 Ga. 144, 148-49 (1958). Under this previous version of the statute, when the incumbent failed to remain a resident of the area from which he was elected, but still remained a resident of the state itself, then the office did not automatically become vacant. Instead a judicial determination of the loss of residency was required before the office could be declared vacant. Id.; see also Long v. Carter, 39 Ga. App. 508 (1929); Chandler v. Strong, 233 Ga. 143 (1974).

However, the General Assembly in 1986 removed the highlighted portion of the above-quoted statute, thereby eliminating the provision that there must be a judicial determination of a loss of residency prior to the vacating of a public office. 1986 Ga. Laws 996, 996-97. In comparing the previous and revised provisions of the statutes in question, a clear legislative intent is demonstrated to eliminate the requirement of a judicial hearing prior to determining a state office was vacated when the incumbent failed to meet the constitutional and statutory residency requirement. O.C.G.A. § 1-3-1(a). As such, under the present statute, a failure of the incumbent to maintain residency, when it is required by law, results in an automatic vacating of the office by operation of law.

Therefore, it is my unofficial opinion that a state court judge must continue to maintain residency in the county from which he or she is elected in order to retain his or her office. If the state court judge fails to do so, then the office becomes vacant as a matter of law.

Prepared by:

DENNIS R. DUNN
Senior Assistant Attorney General