O.C.G.A.
O.C.G.A.

O.C.G.A. § 21-2-523 (2019)

Jurisdiction and pretrial procedures; notification; selection and compensation of judge

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)
Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.
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(a) A contest case governed by this article shall be tried and determined by the superior court of the county where the defendant resides, except that a municipal contest case shall be tried and determined by

the superior court of the county where the city hall is located. A contest case challenging the eligibility of the two defendants declared as eligible to compete with each other in a run-off primary or election shall be tried and determined by the superior court of the county where the defendant who received the highest number of votes resides. (b) The superior court having jurisdiction of a contest case governed by this article shall be presided over by a superior court judge or senior judge. The superior court judge or senior judge who presides over the contest shall be selected as set out in subsection (c) of this Code section. (c) Upon the filing of a contest petition, the clerk of the superior court having jurisdiction shall immediately notify the administrative judge for the judicial administrative district in which that county lies, or the district court administrator, who shall immediately notify the administrative judge, of the institution of proceedings under this article. If the county in which the proceedings were instituted is not in the circuit of the administrative judge, the administrative judge shall select a superior court judge from within the district, but not from the circuit in which the proceeding was instituted, or a senior judge not a resident of the circuit in which the proceeding was instituted, to preside over the contest. (d) If the administrative judge is a member of the circuit in which the proceeding was filed, or if the other judges of the district are unable or are unwilling to preside over the proceeding, or if the other judges of the district are judges of the circuit in which the proceeding was filed, then the administrative judge shall select an administrative judge of an adjoining district to select a superior court judge from that district, or a superior court judge from the district in which the proceeding was filed, but not the circuit in which the proceeding was filed, or a senior judge who is not a resident of the circuit wherein the proceeding was filed. (e) After a judge has agreed to preside over the case, the administrative judge who selected the judge to hear the matter shall enter an order in the superior court of the county where the proceeding was filed appointing such judge, and such judge shall promptly begin presiding over such proceedings in such court and shall determine same as soon as practicable. Such judge shall be reimbursed for his or her actual expenses for food and lodging and shall receive the same mileage as any other state officials and employees. Senior judges shall be entitled to compensation and reimbursement as the law provides for senior judge service.

History

Code 1933, § 34-1704, enacted by Ga. L.

1964, Ex. Sess., p. 26, § 1; Ga. L. 1969, p. 329, § 1; Ga. L. 1977, p. 175, § 1; Ga. L.

ELECTIONS & PRIMARIES

1991, p. 608, § 2; Ga. L. 1998, p. 295, § 1.

Annotations

Cross references. Mileage and actual travel expenses for state officials, § 50-19-7.

Law reviews. For article, “The Civil Jurisdiction of State and Magistrate Courts,” see 24 Ga. St. B. J. 29 (1987).

JUDICIAL DECISIONS Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Code 1933, §§ 342801, 34-2802, 34-2803, 34-3001 and Code Section 21-3-424 are included in the annotations for this Code section. Who was proper presiding judge. - Under O.C.G.A. § 21-2-523, a superior court judge or a senior superior court judge had to be selected to preside over the dismissal of the election contest action. Williams v. Heard, 302 Ga. 114, 805 S.E.2d 1, 2017 Ga. LEXIS 773 (2017). Protest filed prior to declaration of results. - Although technically incorrect, a protest may be lodged prior to the governing authority’s declaring the results of the election where such a handling affords the parties substantial justice. Garnto v. Wheeler, 235 Ga. 405, 219 S.E.2d 721, 1975 Ga. LEXIS 895 (1975). Time limit for filing petition. - The requirement that a petition to contest shall be filed within five days after the results of the election are certified by the election official means in effect “not later than” that date. Whittington v. Mathis, 253 Ga. 653, 324 S.E.2d 727, 1985 Ga. LEXIS 511 (1985). Failure to comply with five-day limit. - Where the contestants failed to comply with the five-day limit, the trial court lacked jurisdiction to decide the merits of the contest. Mayor & Council v. Hall, 261 Ga. 681, 410 S.E.2d 105, 1991 Ga. LEXIS 940 (1991). Agent of court fails to follow procedure. - The right to contest the results of

an election through the expedited procedure of former subsection (c) of O.C.G.A. § 21-3-424 is not waived by the clerk of court’s failure to follow the procedure outlined in former subsection (f). Stuckey v. Storms, 265 Ga. 491, 458 S.E.2d 344, 1995 Ga. LEXIS 516 (1995) (decided under former § 21-3-424). Holding of election is generally a political matter not ordinarily cognizable in a court of equity. Committee for New Cobb County Revenue v. Brown, 228 Ga. 364, 185 S.E.2d 534, 1971 Ga. LEXIS 567 (1971). Jurisdiction of an ordinary (now superintendent) to determine contest arising out of election of constable is limited, and the ordinary has no power other than that expressly conferred by statute, and in such a proceeding the ordinary does not act in a judicial or quasi-judicial capacity; consequently the ordinary’s sole authority and jurisdiction is to determine whether the person filing the contest or the one who was declared elected received the greater number of legal votes, and, in case the contestant received it, to declare the contestant duly elected. Thompson v. Stone, 205 Ga. 243, 53 S.E.2d 458, 1949 Ga. LEXIS 356 (1949) (decided under former Code 1933, §§ 34-2801, 34-2802, 342803, 34-3001).

OPINIONS OF THE ATTORNEY GENERAL Jurisdiction over challenge of one holding office of sheriff. - Jurisdiction to hear a case seeking to challenge the

qualifications of a person to hold the office of sheriff rests with the superior courts. 1980 Op. Att’y Gen. No. U80-1.

RESEARCH REFERENCES Am. Jur. 2d. 26 Am. Jur. 2d, Elections, § 396 et seq.

C.J.S. 29 C.J.S., Elections, § 444 et seq.

Notes of Decisions
Cited in 6 cases (1 in the last 5 years), 1983–2021 · leading case: Williams v. Heard, 805 S.E.2d 1 (Ga. 2017).
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Williams v. Heard, 805 S.E.2d 1 (Ga. 2017). · cites it 14× “We further conclude that because the trial judge did not meet the requirements of OCGA § 21-2-523 (b) to preside over this action, upon remand, a judge meeting such requirements must be selected to preside over entry of the dismissal.”
Rhonda J. Martin v. Fulton Cnty. Bd. of Reg. & Elections, 307 Ga. 193 (Ga. 2019). · cites it 4× “Petitioners did not object to that timeline, which set the trial date 7 The case was reassigned in accordance with OCGA § 21-2-523 (d), which provides that “[i]f the administrative judge is a member of the circuit in which the [election contest] proceeding was filed” — which was…”
Littlejohn v. Cleland, 308 S.E.2d 186 (Ga. 1983). · cites it 4× “The Fulton Superior Court then contacted the senior judge of the Stone Mountain Judicial Circuit, the adjacent circuit, to preside over the matter pursuant to OCGA § 21-2-523 (Code Ann. § 34-1704). Since the senior judge was unable to hear the matter at the time scheduled, the…”
Schmitz v. Barron, Dir., 863 S.E.2d 121 (Ga. 2021). · cites it 2× “As Schmitz rightly points out, in Swain, the party who was not served was listed as a District pursuant to OCGA § 21-2-523. We caution superior courts that, like parties, the clerk, and the sheriff, they too have a duty under the Election Code to see that election contests are…”
Hilliard v. Baldwin, 710 S.E.2d 143 (Ga. 2011). · cites it 2× “See OCGA § 21-2-523 (c)-(e). The record appendix contains the transcripts of evidentiary hearings conducted on September 30, October 22, and December 28, 2010, and the trial court’s final judgment refers to a fourth hearing having been held on September 2.”
Williams v. Heard (Ga. 2017). · cites it 12× “We further conclude that because the trial judge did not meet the requirements of OCGA § 21-2-523 (b) to preside over this action, upon remand, a judge meeting such requirements must be selected to preside over entry of the dismissal.”
Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.