This case involves a declaratory judgment action brought by Gwendolyn Keyes Fleming, the former District Attorney of the Stone Mountain Judicial Circuit the “District Attorney”,1 against Winston P. Bethel, Chief Judge, and the other judges of the Magistrate Court of DeKalb County “MCDC”.2 The District Attorney asserts that declaratory judgment relief is needed to enable her to ascertain the proper evidentiary standards in preliminary hearings in the MCDC, alleging that she faced uncertainty and insecurity as to her ability to rely on hearsay evidence alone as a basis on which to establish probable cause in order to have a case bound over to an appropriate court. On the parties’ cross-motions for summary judgment, the trial court granted the District Attorney’s motion and entered a declaratory judgment in favor of the District Attorney. The MCDC appeals, arguing that i the underlying action for declaratory judgment is procedurally improper under OCGA § 9-4-2 a and b, ii the MCDC has discretion to exclude hearsay evidence at preliminary hearings, and iii noncompliance with a declaratory judgment does not constitute a basis for bringing a complaint to the Judicial Qualifications Commission “JQC”. This case is of great significance to the extent that if decided wrongly, it would negatively impact the expedient resolution of cases and the public safety of all Georgia citizens in the context of the criminal justice system. To that end, we find a declaratory judgment regarding the proper evidentiary standards in preliminary hearings is authorized and necessary in this case, and further, that magistrate judges are required to admit and weigh hearsay evidence in preliminary hearings. We thus affirm the trial court’s order on these grounds. Regarding the trial court’s ruling on JQC complaints, however, we conclude that such ruling was an erroneous advisory opinion; therefore, we reverse that portion of the declaratory judgment. This Court’s review of the grant or denial of summary judgment is de novo in order to determine whether any genuine issue of material fact exists for resolution by a jury. To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law pursuant to OCGA § 9-11-56 c. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. The burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. Punctuation and footnotes omitted. McCullough v. Reyes , 287 Ga. App. 483, 484 651 SE2d 810 2007.
So viewed, the evidence shows that the genesis of the instant action dates back to 2007, when the District Attorney filed a petition for mandamus and writ of prohibition against the MCDC and against Chief Judge Bethel and certain magistrate judges in their individual capacities, seeking an order requiring the MCDC to admit and consider hearsay evidence at preliminary hearings to determine whether to bind over the defendant for grand jury indictment. The trial court ruled that “a magistrate judge does not have the discretion to refuse to admit hearsay or to require evidence in addition to hearsay evidence, if such hearsay by itself establishes probable cause to bind over charges against a defendant.”
