The Fayette County Marshal’s Department “FCMD” was created in 1983 when the county, acting through its Board of Commissioners, adopted Section 2-4 of the Fayette County Code of Ordinances. In August 2003, the Fayette County Sheriff, appellant Richard Johnson, notified the Board that he would no longer jail persons detained by FCMD marshals based on his belief that the Department was not an authorized county police force. After attempts to resolve the dispute proved unsuccessful, Fayette County filed suit seeking injunctive and declaratory relief, contending that the FCMD is a county police force and that the Sheriff was acting illegally by not accepting prisoners arrested by FCMD marshals. The trial court granted summary judgment to Fayette County, finding that on January 1, 1992 the FCMD was an established, operational, and functional county law enforcement agency with full arrest powers. Johnson appeals from that order, and for the reasons that follow, we affirm in part and reverse in part. 1. OCGA § 36-8-1 b grants to each county the power to create a county police force. Pursuant to this authority, prior to 1992 any county could create a county police force by electing or appointing a county police force. Ga. L. 1914, p. 142 § 1. See OCGA § 36-8-1 a. The General Assembly amended OCGA § 36-8-1 in 1992, however, to require voter approval of a resolution or ordinance creating a county police force before it can become effective. Ga. L. 1992, p. 324 § 1; OCGA § 36-8-1 b 1. OCGA § 36-8-1 c includes a “grandfather” clause rendering the referendum requirement of subsection b 1 inapplicable “to any county which has created a county police force prior to January 1, 1992, which county police force remains in existence and operational.” Id. at c.
Johnson contends that the FCMD is not a valid county police force because there was no referendum approving its creation. The County asserts that no referendum was required because the FCMD is a county police force created prior to January 1, 1992. To prevail on summary judgment, therefore, Fayette County was required to demonstrate that there was no genuine issue of material fact and that the undisputed facts established that the FCMD is a county police force created prior to January 1, 1992, which remains in existence and operational. OCGA § 36-87-1 c. See OCGA § 9-11-56; Lau ‘ s Corp. v. Haskins , 261 Ga. 491 405 SE2d 474 1991.
