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IN RE: Formal Advisory Opinion 242
JQC Formal Advisory Opinion 242
The Judicial Qualifications Commission's (“Commission”) Hearing Panel respectfully submits the attached Formal Advisory Opinion (Exhibit A) to the Court pursuant to Commission Rule 28(B)(4). The Commission's Investigative Panel, invoking Commission Rule 28(B)(1), requested that the Hearing Panel issue a formal advisory opinion. The Hearing Panel made a preliminary determination that a proposed formal advisory opinion should be drafted on the issue presented by the Investigative Panel. The Hearing Panel subsequently authored and then published a proposed Formal Advisory Opinion 242 on the websites of the Commission, the Administrative Office of the Courts, and the State Bar of Georgia on 6 March 2018. Consistent with Commission Rule 28(B)(3), the Hearing Panel invited public comments on proposed Formal Advisory Opinion 242 through 23 March 2018. After due consideration of those comments, the Hearing Panel made minor changes to the proposed formal advisory opinion.
The Hearing Panel now files Formal Advisory Opinion 242 with the Court and will also publish it on the websites listed above. The Hearing Panel or any person “aggrieved” by Formal Advisory Opinion 242 has twenty days from the date of this filing to petition the Court for discretionary review.1 Commission Rule 28(B)(4). The Court may also review the opinion sua sponte. Id.
With this explanation, the Hearing Panel respectfully submits Formal Advisory Opinion 242 to the Court.
This 15 day of May, 2018.
Hon. Robert C.I. McBurney Presiding Officer Judicial Qualifications Commission Hearing Panel
JUDICIAL QUALIFICATIONS COMMISSION STATE OF GEORGIA
FORMAL ADVISORY OPINION No. 242
Pursuant to Rule 28(B) of the Rules of the Judicial Qualifications Commission (JQC), the Investigative Panel of the JQC has requested that the Hearing Panel of the JQC issue an opinion on whether the Code of Judicial Conduct, which governs both judges and judicial candidates (as defined in the Code and discussed below), applies to conduct by a non-judge before that person becomes a judicial candidate. This question appears not have been addressed in any earlier JQC Advisory Opinion. For the reasons set forth below, the Hearing Panel concludes that such conduct is not governed by the Code.
It is alleged that a candidate for judicial office in Georgia has engaged in conduct arguably violative of the Code. However, it appears that the alleged misconduct occurred before the individual became a judicial candidate. A complaint concerning this conduct has been presented to the Investigative Panel.
The Code of Judicial Conduct applies to “[a]nyone ․ who performs a judicial function under the Constitution and laws of Georgia” as well as to “any person who is a judicial candidate for any such office.” Application, Code of Judicial Conduct. A “judicial candidate” is any person “seeking selection for or retention in judicial office by election or appointment.” Terminology, Code of Judicial Conduct. One becomes such a candidate as soon as one
(i) appoints or forms a campaign committee, (ii) makes a public announcement of candidacy, (iii) declares, files or qualifies as a candidate with the election or appointment authority, or (iv) authorizes solicitation or acceptance of contributions or support.
Id. Once the Code is applicable to an individual, that individual must immediately comply with all of the Code's provision (except for Rules 3.8 and 3.1(B) – (F)). Application, Section C.
What this examination of the Code makes clear is that someone who is not yet a judicial candidate -- and not already a judge -- is not governed by the provisions of the Code. Consequently, the Investigative Panel is without jurisdiction to consider complaints that are limited to allegations of misconduct that occurred before a non-judge became a judicial candidate.1 While such allegations may well be fodder for campaign material, they do not fall within the Commission's purview.
JUDICIAL QUALIFICATIONS COMMISSION
To: The Supreme Court of Georgia
From: The Investigative Panel of the Judicial Qualifications Commission
Date: September 24, 2018
Re: Proposed Amendments to the Georgia Code of Judicial Conduct (the “Code”) and the Rules of the Georgia Judicial Qualifications Commission
Pursuant to Judicial Qualifications Commission Rule 3.E (1)(b), the Investigative Panel of the Commission has “the duty and authority to ․ propose amendments to the Georgia Code of Judicial Conduct and these [Commission] Rules, subject to review and adoption by the Supreme Court.” After several revisions and a public comment period, the Investigative Panel now proposes amendments addressing three issues: (1) jurisdiction over judges elect, (2) jurisdiction over the prior misconduct of judges and judicial candidates, and (3) which provisions of the Code should apply to judicial candidates.
I. The Commission has jurisdiction over judges elect.
Several Commissioners and others have posed questions as to the Commission's jurisdiction, including the extent to which the Commission may discipline judges elect, that is, those individuals who are duly elected or appointed to office but have not yet officially assumed office. The Code explicitly gives the Commission jurisdiction to discipline judicial candidates and sitting judges for misconduct. (See Code, Preamble ¶ 3; Application ¶ 1.) It does not, however, clearly speak to judges elect who are no longer judicial candidates but not yet sitting judges.
The Investigative Panel proposes amending the Code and Rules to explicitly make judges elect subject to the Commission's jurisdiction. Such amendments prevent anomalous situations where a judge elect commits misconduct that would typically constitute grounds for discipline or removal, but the Commission could not formally act on that misconduct until the judge elect formally assumed office. For example, if a judge elect were to start making speeches for political organizations or publicly endorsing other candidates for public office in violation of Rule 4.1 (A), it is uncertain that the Commission has the power to act until the individual assumes judicial office because the Code and Rules only speak to judges and judicial candidates. Likewise, a judge elect could commit a felony and remain beyond the Commission's authority until assuming office. Amending the Code and Rules to specify that judges elect remain subject to the Code as “judicial candidates” removes that uncertainty.1
The Supreme Court could make this amendment with the addition of a sentence in the Code and Rules noting that judges elect are still “judicial candidates” subject to the Code. This addition could be made in the definition of judicial candidate, which is identical in the Terminology sections of the Code and Rules.2
Terminology (Page 3 in Rules and Page 7 in the Code)
“Judicial candidate” is a person, including an incumbent judge, seeking selection for or retention in judicial office by election or appointment. A person becomes a candidate for judicial office as soon as he or she: (i) appoints or forms a campaign committee, (ii) makes a public announcement of candidacy, (iii) declares, files or qualifies as a candidate with the election or appointment authority, or (iv) authorizes solicitation or acceptance of contributions or support. A person who is announced as the appointee to fill a judicial position by the Governor or other appointing authority, or who is certified as elected to a judicial position, continues to be a judicial candidate until he or she is sworn into office. The term “judicial candidate” has the same meaning when applied to a judge seeking election or appointment to non judicial office.
Finally, the Investigative Panel proposes deleting the last sentence from the definition. That sentence is a vestige of the old Code and is unnecessary given Rule 4.5's new “resign-to-run provision.” That provision now specifically addresses judges who are seeking election or appointment to non-judicial office.
II. The Commission has jurisdiction over the prior misconduct of judges to the extent it implicates the judge's current integrity, impartiality, and competence. The Commission has no jurisdiction over the prior misconduct of judicial candidates.
The Code and the Commission's Rules are at odds regarding jurisdiction over misconduct that occurs before an individual becomes a judge or judicial candidate.3 The Code provides for jurisdiction over “allegations of misconduct occurring during the individual's service as a judge, judicial candidate, or an officer of a judicial system.” (Code Application, Part D.) The Commission's Rules, on the other hand, provide for jurisdiction over “allegations that misconduct occurred before or during service as a judge or judicial candidate.” (Rule 2.B (2).)
The Investigative Panel proposes amending the Code, Application Section, Part D, adding a new commentary to Rule 1.2 of the Code, and deleting the words “before or” from Commission Rule 2.B (2), to reflect its jurisdiction over certain misconduct that occurred before an individual becomes a judge and its lack of jurisdiction over the prior misconduct of judicial candidates:
D. Ongoing Disciplinary Authority
In addition to the foregoing, the appropriate authority for judicial discipline shall have continuing jurisdiction over individuals to whom this Code is applicable regarding allegations of misconduct occurring during the individual's service as a judge, judicial candidate, or an officer of a judicial system, that violations of the Code occurred during the individual's service as a judge or judicial candidate or allegations that the individual engaged in conduct prior to service as a judge that impairs the individual's current ability to carry out judicial responsibilities with integrity, impartiality, and competence, if a complaint is filed no later than one year following that service. See Rule 1.2, Commentary .
Rule 1.2 Promoting Public Confidence in the Judiciary
 On rare occasions, violations of the Code may be based on conduct occurring before the individual became a judge. For example, a judge may commit a serious crime before becoming a judge that is not discovered until after the judge takes office. That prior crime may undermine the judge's current integrity, impartiality, or competence such that it impairs the judge's ability to carry out official duties in conformance with the Code. In general, however, a judge's prior conduct will not serve as the basis for a violation of the Code. For example, most judges practiced law before assuming judicial office. Although full-time judges are generally prohibited from practicing law under Rule 3.10, that prior conduct is obviously not a basis for a violation of the Code because it does not affect the judge's current compliance with the Code. Likewise, a judge may have committed a minor crime, years prior to taking office, that indicates no current inability to comply with the Code. In sum, an individual's actions prior to becoming a judge may constitute a violation of the Code only to the extent that prior acts reflect on the judge's current integrity, impartiality, or competence.
Commission Rule 2.B (2)
(2) Former Judges, The Commission has continuing jurisdiction over former judges regarding allegations that misconduct occurred before or during service as a judge or judicial candidate if a complaint is made within one year following service as a judge or judicial candidate.
The proposed amendments clarify two points with respect to Commission jurisdiction. First, the addition of the commentary clarifies what types of conduct—prior to a judge assuming the bench—the Commission may look to as a potential violation of the Code. Prior misconduct that implicates the judge's current abilities should be subject to Commission jurisdiction. Minor or youthful indiscretions should not.
Second, the amendment to Part D's language illustrates a key distinction between the prior misconduct of judges as opposed to the prior misconduct of judicial candidates. The Commission has a duty to investigate the relevant misconduct of judges or former judges whether it occurred before or during the individual's judgeship. In fact, the Constitution explicitly gives the Commission this duty in cases involving the indictment of a judge, regardless of when the conduct underlying the indictment occurred. (GA. CONST. Art. VI, § VII. Para. VII.) Likewise, the Commission has a public interest in addressing the campaign misconduct of judicial candidates or former judicial candidates. However, Commission jurisdiction over the misconduct of a judicial candidate that occurs prior to his or her candidacy, if the candidate never becomes a judge, is another matter. That issue is properly suited for the voters to consider during a judicial campaign, and likely fodder for the candidate's opposition and the press. Thus, Part D's amendment shows that the Commission has jurisdiction over misconduct that occurred during service as a judge or judicial candidate, but the Commission only has jurisdiction over the prior misconduct of judges. This amendment protects the Commission's interest in an ethical judiciary while keeping the Commission out of unnecessary political issues.
III. Judicial candidates should be subject to the same Code provisions as judges pro tempore.
In looking at the Commission's jurisdiction with respect to judges elect, the question arose as to what provisions of the Code apply to judicial candidates as opposed to judges. The Code's application provides that “[a]nyone, whether or not a lawyer, who performs judicial functions under the Constitution and laws of Georgia, including an associate judge, senior judge, special master, magistrate, or municipal judge, or any person who is a judicial candidate for any such office, is a judge for the purpose of this Code.” On the other hand, only Canon 4 of the Code—governing political activity and campaign conduct—explicitly mentions its application to judicial candidates. These two provisions appear at odds because the application section instructs the Commission to treat judicial candidates as “judges” under the Code while only Canon 4 explicitly applies to judicial candidates.
Furthermore, properly determining what Code sections apply to judges as opposed to judicial candidates is of great practical importance. For example, Canon 3 prohibits “judges” from acting as arbitrators or mediators for compensation or from practicing law. Prohibiting judicial candidates from such activities would impose an undue financial hardship on many and is inconsistent with how this Commission has enforced and interpreted the Code. On the other hand, only applying Canon 4 to judicial candidates leaves too much misconduct beyond the purview of the Code. For example, a judicial candidate who wins an election should not trade on the prestige of his or her future judicial office for private gain. If only Canon 4 applied to judicial candidates, this may be permissible conduct. (See Rule 1.1 (requiring judges to act in a manner that promotes the public confidence in the independence, integrity, and impartiality of the judiciary); Rule 1.3 (prohibiting judges from lending the prestige of their office to advance the private interests of the judge or others).)
The Investigative Panel proposes applying the same Code provisions to judicial candidates as judges pro tempore. This strikes a proper balance between upholding the integrity of the judiciary and ensuring that judicial candidates are not unduly burdened by the full Code. The Code's application provides that judges pro tempore are not required to comply with the following rules of the Code,
• Rule 3.4 [extra-judicial appointments],
• Rule 3.8 [fiduciary activities],
• Rule 3.9 [arbitration and mediation],
• Rule 3.10 [practice of law],
• Rule 3.11 [financial activities], and
• Rule 3.15 (A)(1) [annual financial reporting of quasi-judicial and extra-judicial compensation].
Exempting judicial candidates from these strictures of Canon 3 ensures that candidates do not face undue hardship when seeking judicial office by allowing them to practice law, serve in extra-judicial roles, and serve as mediators or arbitrators for pay among other things, in other words, to engage in business related to the practice of law. At the same time, Canons 1 and 2, which protect the impartiality and integrity of the judiciary, remain in force. Accordingly, the Investigative Panel proposes adding a sentence to the end of the definition of judicial candidate specifying that such candidates are subject to the same Code provisions as judges pro tempore.
Terminology (Page 3 in Rules and Page 7 in the Code)
“Judicial candidate” is a person, including an incumbent judge, seeking selection for or retention in judicial office by election or appointment. A person becomes a candidate for judicial office as soon as he or she: (i) appoints or forms a campaign committee, (ii) makes a public announcement of candidacy, (iii) declares, files or qualifies as a candidate with the election or appointment authority, or (iv) authorizes solicitation or acceptance of contributions or support. A person who is announced as the appointee to fill a judicial position by the Governor or other appointing authority, or who is certified as elected to a judicial position, continues to be a judicial candidate until he or she is sworn into office. The term “judicial candidate has the same moaning when applied to a judge seeking election or appointment to non judicial office. Judicial candidates who do not currently hold judicial office are subject to the same Code provisions as judges pro tempore.
Additionally, the Investigative Panel proposes adding a second paragraph to the commentary section under the definition of judges pro tempore to reference the change above.
 These Rules contemplate ․ infrequent periods of time,
 Judicial candidates who do not currently hold judicial office are subject to the same Code provisions as judges pro tempore. See Terminology Section, definition of judicial candidate.
For these reasons, the Investigative Panel respectfully requests that the Supreme Court consider and adopt these proposed amendments to the Georgia Code of Judicial Conduct and the Rules of the Georgia Judicial Qualifications Commission.
1. The Hearing Panel does not intend to seek discretionary review from the Court at this time.
1. This Opinion does not address the specific facts that gave rise to the complaint to the Investigative Panel. They are, appropriately, not known to the Hearing Panel. It is for the Investigative Panel to determine whether the individual in question, now purportedly a judicial candidate, was a judicial candidate, as defined by the Code, when the complained-of behavior occurred.
1. “Judicial Candidates” refers to both candidates and judges elect for the remainder of this proposal.
2. Text that appears unaltered is the text presently, underlined text is a proposed addition, stricken text is a proposed deletion.
3. The Commission's Hearing Panel recently issued proposed Formal Advisory Opinion 242, which found that the Code did not apply to the pre-candidacy conduct of an individual who was not otherwise a judge because that person was not a judicial candidate or exercising a judicial function at the time.
Response sent, thank you
Decided: June 11, 2018
Court: Supreme Court of Georgia.
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