Gwendolyn Keyes Fleming, District Attorney for the Stone Mountain Judicial Circuit, filed a petition for mandamus and prohibition against the DeKalb County Magistrate Court1 and selected magistrate judges collectively, “DCMC” on July 2, 2007, challenging DCMC’s alleged policy of finding hearsay evidence alone insufficient to establish probable cause at preliminary hearings.2 The Rockdale County superior court judge to whom the action was assigned held a hearing on October 9, 2007 and entered an order on January 8, 2008, finding that “at a preliminary hearing a magistrate judge does not have the discretion to refuse to admit hearsay evidence or to require evidence in addition to hearsay evidence, if such hearsay evidence by itself establishes probable cause.” The order directed that a final judgment be entered as to this finding pursuant to OCGA § 9-11-54 b, but the issue of a remedy was held in abeyance for six months to allow DCMC to pursue a new policy in voluntary compliance with the order. DCMC’s notice of appeal from this order was filed on January 31, 2008.3 The dismissal of charges by a magistrate judge at a preliminary hearing is not subject to challenge by the State.4 See OCGA § 5-7-1 et seq. authorizing appeal and certiorari by State in criminal cases only under specified circumstances; State v. Ware , 282 Ga. 676, 677 653 SE2d 21 2007 statute must be strictly construed against State. Here, the State, in the person of the District Attorney, has attempted to avoid this restriction by attacking the alleged DCMC policy resulting in such dismissals through the device of a writ of mandamus and prohibition. See Howard v. Lane , 276 Ga. 688, 689 581 SE2d 1 2003. However, as the underlying subject matter concerns rulings allegedly made in criminal prosecutions, and from which the State has no ability to appeal, the trial court erred by considering the petition for mandamus and prohibition, id., and its ruling thereon must be reversed.5
Any attempt to recast Fleming’s action as one for a declaratory judgment is belied by the substance of the pleadings. Rather than merely seeking guidance regarding the proper evidentiary standards for preliminary hearings, Fleming sought an order prohibiting DCMC from applying its hearsay evidentiary rule and mandating that the interpretation of the rule set forth by Fleming be used. As stated by Fleming in her brief to this Court, “the essence of this litigation . . . is a demand that the DCMC relinquish the power to function during a preliminary hearing as a mini trial court.” This is not a declaratory judgment action. Compare OCGA § 9-4-1 purpose of Declaratory Judgment Act is “to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations” with OCGA § 9-6-20 mandamus may issue to compel performance and OCGA § 9-6-40 prohibition may issue to restrain subordinate court from exceeding its jurisdiction.
