In re Judicial Qualifications Comm'n Formal Advisory Op. No. 241, S15Z1597

301 Ga. 54

799 S.E.2d 781

IN RE JUDICIAL QUALIFICATIONS COMMISSION FORMAL ADVISORY OPINION NO. 241.

S15Z1597

Supreme Court of Georgia.

Decided: May 1, 2017

Michael Brian Terry, Jeremy D. Farris, BONDURANT, MIXSON & ELMORE, LLP, 1201 West Peachtree Street, N.W., Suite 3900, Atlanta, Georgia 30309-3417, for Appellant.

Norman S. Fletcher, Lee Barrett Carter, BRINSON ASKEW BERRY SEIGLER RICHARDSON & DAVIS, LLP, P.O. Box 5007, Rome, Georgia 30161, for Appellee.

John B. Long, TUCKER LONG, P.C., P.O. BOX 2426, Augusta, Georgia 30903-2426, for Amicus Appellee.

Robert E. Turner, Houston County Magistrate Court, 89 Cohen Walker Drive, Warner Robins, Georgia 31088, Wayne M. Purdom, STATE COURT OF DEKALB COUNTY, 556 North McDonough Street, Room 807, DeKalb Courthouse, Decatur, Georgia 30030, Charles S. Wynne, STATE COURT OF HALL COUNTY HALL COUNTY COURTHOUSE, P.O. Box 1435, Gainesville, Georgia 30503-0000, for Other Party.

Per Curiam.

In July 2014, the Council of State Court Judges (hereinafter, "the Council") filed an amicus brief in the then-pending matter of Sentinel Offender Services, LLC v. Glover , 296 Ga. 315, 766 S.E.2d 456 (2014).¹ That same month, plaintiffs' counsel in Sentinel submitted a request to the Judicial Qualifications Commission (hereinafter, "the Commission") for an opinion as to whether the Georgia Code of Judicial Conduct prohibited the Council from submitting amicus briefs to the Georgia Supreme Court in a pending case involving private litigants. Thereafter, the Commission rendered Formal Advisory Opinion No. 241.² Relying on portions of former³ Canons 1,⁴ 2 (A),⁵ and 2 (B) ⁶ of the Code of Judicial Conduct, the Commission opined that the "filing [of] Amicus Curiae Briefs by judges, councils of judges or any other organization of judges in cases pending in any trial or appellate court would be improper and prohibited by the Georgia Code of Judicial Conduct."

The Council petitioned this Court pursuant to Commission Rules 22 (b) and (d), seeking a review of Formal Advisory Opinion No. 241. This Court granted the petition, questioning whether Georgia law and the Code of Judicial Conduct permitted either individual judges, or groups or councils of judges, to file amicus curiae briefs in pending cases.

The parties filed briefs on the merits, and the Commission also filed a motion to dismiss,⁷ contending that this Court was without authority to review the Commission's formal advisory opinions. We heard oral argument on November 2, 2015. Having carefully considered the arguments of both parties, we conclude that the Code of Judicial Conduct permits judges' associations to submit amicus briefs in pending litigation. We further conclude that, while individual judges are not absolutely barred from filing amicus briefs in pending litigation, they may only do so on rare occasion and with great caution. Accordingly, pursuant to Rule 22 (b), we direct the Commission to reconsider Opinion No. 241 in a manner consistent with the opinion of this Court.

1. First, we address the Commission's motion to dismiss, which avers that this Court lacks the authority to review the Commission's advisory opinions. For the same reasons as explained by this Court in In re Judicial Qualifications Commission Formal Advisory Opinion No. 239 , 300 Ga. 291, 292-299, 794 S.E.2d 631 (2016) (establishing this Court's authority to review advisory opinions from the Judicial Qualifications Commission), that motion is denied.⁸

2. Concerning Formal Advisory Opinion No. 241, the Council argues that the Commission lacks authority to issue the opinion as it attempts to regulate the Council's institutional conduct and is unrelated to judicial discipline. We agree.

"It is our opinion that the jurisdiction of the Commission should be construed as encompassing only persons who are clearly intended to be within its jurisdiction." Matter of Inquiry Concerning a Judge No. 1419 , 259 Ga. 831, 831, 388 S.E.2d 683 (1990). Further,

[a]lthough the Commission possesses the authority to impose discipline to enforce the standards of judicial conduct, nothing in the Constitution vests the Commission with the authority to set those standards in the first instance, to render authoritative and binding interpretations of the standards, or to offer any interpretation of the standards other than in the context of a particular disciplinary proceeding. To the contrary, the Constitution itself identifies in general terms the conduct for which judges may be disciplined, see Art. VI, Sec. VII, Par. VII, and the authority to prescribe more particularized standards for judicial conduct belongs to this Court as an incident of the judicial power, see Judicial Qualifications Comm. v. Lowenstein , 252 Ga. 432, 314 S.E.2d 107 (1984), an authority that we have exercised by our adoption of the Code of Judicial Conduct.

Formal Advisory Opinion No. 239 , supra at (1) (b).

The Georgia Constitution vests the Commission with the power "to discipline, remove, and cause involuntary retirement of judges,"

Ga. Const. of 1983, Art. VI, Sec. VII, Par. VI, and charges the Commission to review both voluntary and involuntary disciplinary actions for "any judge" serving in Georgia, see generally id. at Par. VII. The Application section of the Code of Judicial Conduct explains that the Code applies to "[a]nyone, whether or not a lawyer, who is an officer of a judicial system performing judicial functions," and further provides that the Commission retains jurisdiction over "individuals to whom [the] Code is applicable" for one year after their term of service expires.⁹ Accordingly, based upon the plain language of our Constitution and the Code of Judicial Conduct, the scope of the Commission's authority is limited to reviewing alleged improper actions of individuals performing judicial functions and potentially imposing disciplinary action for the same.

Here, the Council is not an individual judge. It did not perform a judicial function by submitting an amicus brief to this Court for consideration and the Council is not facing a potential disciplinary action based upon these activities; instead, the Council is a constitutionally-created body¹⁰ which was established in order "to effectuate the constitutional and statutory responsibilities conferred upon it by law and to further the improvement of the state courts, the quality and expertise of the judges thereof, and the administration of justice." OCGA § 15-7-26 (b). The filing of amicus briefs by the Council may fulfill these purposes and is part of the long tradition of judicial organizations, including the Conference of Chief Justices, filing amicus briefs in State and Federal courts around the country.¹¹ Therefore, the Commission does not have the authority to regulate the Council's conduct as an institution. Accord Mass. Comm. On Judicial Ethics Op. No. 2002-10, 2002 WL 34696420, at *2 (Sept. 30, 2002) (hereinafter "Mass CJE Op."); Utah Judicial Ethics Informal Op. 98-17, 1998 WL 35387318, at *1 (Dec. 14, 1998).

3. Though the request submitted by plaintiffs' counsel in the Sentinel matter only asked whether a judicial council could file an amicus brief in pending litigation, the Commission extended its interpretation of the Code of Judicial Conduct in FAO No. 241 to absolutely bar individual judges from filing amicus briefs. However, in coming to this conclusion, the Commission did not look beyond the general provisions of Canons 1 and 2. Reviewing the Code of Judicial Conduct in its entirety, we conclude that, while individual judges are generally prohibited from filing amicus briefs, they may, on a rare occasion and while exercising extreme caution, file such briefs in pending matters.

Generally, the Code of Judicial Conduct prohibits full-time judges from filing individual amicus briefs. For instance, former Canon 5 (F) (now Rule 3.10) states that a full-time judge "shall not practice law, unless allowed by law."¹² Even more pertinent is former Canon 3 (B) (9) (now Rule 2.10 (A)), which stated:

Judges shall not, while a proceeding is pending or impending in any court , make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any non-public comment that might substantially interfere with a fair trial or hearing.... This subsection does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court. This Section does not apply to proceedings in which the judge is a litigant in a personal capacity.

(Emphasis added.)¹³ The phrase "in any court" indicates that a judge is not only prohibited from commenting on cases pending in his or her own court, but is also precluded from commenting on matters pending in other courts. Thus, a judge who uses an amicus brief to publicly express his or her view on how a pending case should be decided will generally violate this canon. See Mass. CJE Op., 2002 WL 34696420, at *1. See also Opinion of the Alabama Judicial Inquiry Commission (May 9, 1997) ("Insofar as the [proposed amicus brief of an individual judge] would become a part of the public record when filed, it could be considered a public comment about a pending proceeding prohibited by [the equivalent of Rule 2.10 (A) ]"). Though, we note that statements made prior to the commencement of an action may be permissible. See Mass. CJE Op., 2002 WL 34696420, at *1.

Furthermore, though judicial...