dissenting.
Because I believe that mandamus was an appropriate remedy in this case, I respectfully dissent.
Here, the trial court found as a matter of fact that magistrate court judges had adopted a court-wide policy dictating that “probable cause to bind over a defendant to superior court cannot be established solely on hearsay evidence.” This policy apparently was enacted to bind magistrate judges on all criminal cases coming before that court, thereby preventing these magistrate judges from exercising their discretion, as required by law, to determine whether hearsay evidence established probable cause at a preliminary hearing. Because the rule at the crux of this case was universally applicable to all cases, it cannot be maintained that the District Attorney was merely attempting to circumvent the requirements of OCGA § 5-7-1. Here, the District Attorney is asserting the rights of the State against the magistrate court judges, themselves. This is not the type of situation encompassed by OCGA § 5-7-1.
It is, however, the type of situation which should be subject to a mandamus action.
*463Decided September 22, 2008 Reconsideration denied October 27, 2008. Howard W. Indermark, for appellants. Gwendolyn Keyes Fleming, District Attorney, Barbara B. Conroy, Leonora Grant, Assistant District Attorneys, for appellee. Gerard B. Kleinrock, Tommy K. Floyd, District Attorney, Lalaine A. Briones, Assistant District Attorney, Charles C. Olson, amici curiae.Generally, mandamus is not an available remedy to require a judicial officer to perform a judicial function in a manner different from the way the judicial officer has performed it because mandamus is not available if there is another specific legal remedy (OCGA § 9-6-20), and a right of judicial review of the act of a judicial officer is a legal remedy. [Cit.]
Zepp v. Brannen, 283 Ga. 395, 396, n. 1 (658 SE2d 567) (2008). In this case, however, there is no appealable order by the magistrate court judges for review, only a general policy adopted by the court governing the conduct of its judges. As a result, mandamus is appropriate to review the efficacy of the magistrate court’s rule. See Titelman v. Stedman, 277 Ga. 460 (591 SE2d 774) (2003). Moreover, by adopting an all-encompassing rule, the magistrate court has refused to properly exercise its discretion in considering hearsay testimony as an appropriate basis for determining probable cause. Mandamus is an appropriate remedy to compel the performance of an official duty, including the exercise of discretion. See, e.g., Common Cause of Montana v. Argenbright, 276 Mont. 382, 392 (2) (917 P2d 425) (1996) (“[MJandamus may issue to require the exercise of permissible discretion, .. . although the manner in which the discretionary act is to be performed is not to be directed by the Court. [Cit.]”); Thomas v. Hollis, 232 SC 330 (102 SE2d 110, 114) (1958) (“[MJandamus may be used to compel an administrative agency to act by exercising its judgment or discretion.”). Therefore, the District Attorney properly filed a mandamus action against the magistrate court judges to compel them to exercise their discretion to consider whether hearsay evidence, standing alone, may establish probable cause.