The Judicial Qualifications Commission has reached a verbal agreement with the daughter of a Paulding County judge in which she will withdraw as the sole candidate in the race for her father’s seat, the JQC’s vice chairman said Friday.
As part of the agreement, which is expected to be announced Monday, Paulding County Superior Court Judge James Osborne would not seek re-election or reappointment to the post he has held since 2005, said JQC vice chairman S. Lester Tate III.
In return, Tate said the judicial disciplinary agency has agreed not to pursue ethics charges against Osborne or his daughter, Dallas attorney Elizabeth Osborne Williams. It also will not seek to bar her from seeking another judicial post at some future date, he said.
The JQC has jurisdiction over the state’s judges and judicial candidates. It can remove a judge from the bench, with the approval of the state Supreme Court.
Tate, a Cedartown attorney with Akin & Tate, told the Daily Report on Friday, “We certainly have been aware of the situation involving Judge Osborne and his daughter and are working now to try to resolve it in a manner that protects the public and the integrity of the judiciary.”
Williams could not be reached for comment Friday. Osborne sent word through his judicial assistant that he had no comment. Osborne’s lawyer, Cedartown attorney Michael McRae of McRae Stegall Peek Harman Smith & Manning, could not be reached.
The JQC weighed in after Osborne qualified March 3 to run for re-election, then withdrew a week later, after Williams signed up to run on the last day of qualifying. The maneuver left Williams as the sole candidate for her father’s seat in the nonpartisan race and, for most of the qualifying period, created the public impression that Osborne intended to run for re-election.
Williams on March 10 told the Daily Report that her father intends to retire from the bench at the end of the year and that they had discussed his retirement plans several weeks before state qualifying opened.
She also said that she and her father had discussed his decision to qualify for re-election despite his plan to retire before the new judicial term began as well as his intention to withdraw from the race.
“He just wanted to give me the best opportunity to serve in the position,” she explained.
Georgia State University legal ethics professor Clark Cunningham told the Daily Report on Friday that Osborne and Williams likely violated the state Code of Judicial Ethics and that the JQC has the authority both to disqualify Williams for her conduct as a candidate and to remove Osborne from his judicial post.
“Elizabeth Williams should recognize that, at this point, she should not take judicial office,” he said. He also suggested that Osborne should step down, explaining that father and daughter have “undermined public confidence in their ability to act with integrity.”
Cunningham, who directs the National Institute for Teaching Ethics & Professionalism, said the Code of Judicial Conduct mandates that judges “shall avoid impropriety and the appearance of impropriety in all their activities” and that “judges … shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”
“Either one of them could be disqualified for their conduct without having to prove that the conduct was actually improper and without having to prove that they intended to act improperly,” he said. “The test for the appearance of impropriety is whether the conduct would, in reasonable minds, create a perception that a judge’s ability to carry out his responsibilities with integrity is impaired.”
“The question is, ‘What is the perception that has been created by their conduct?’” he continued. “If the perception is that Elizabeth Williams has become a judge through trickery, then that undermines public confidence in the judiciary. Nobody has a right to be a judge. Being a judge is a privilege.”
Cunningham said that if Williams and Osborne knew when the judge filed to seek re-election that he did not intend to run, “I, as a reasonable person, have the perception that he acted dishonestly. He did not intend to run but wanted to create the impression that he intended to run. That was a dishonest thing to do. She capitalized on his dishonest act by waiting until the last minute to file qualifying papers so that she could run unopposed.
“There no question what the public perception is at this point. Had she filed at the beginning of the qualifying period, it would have immediately communicated that this was a contested race and caused people to wonder whether Judge Osborne seriously intended to run against his own daughter.”
As public outrage grew after Osborne withdrew his candidacy on Monday, state Rep. Chuck Efstration, R-Dacula, who is a lawyer, began pushing for an amendment to existing legislation that would address circumstances like the one in Paulding County.
Efstration said his proposal would allow the Secretary of State to reopen the qualifying period for a race if the incumbent withdraws or is disqualified after the qualifying period ends and there is only one other qualified candidate.
“In this circumstance, the election would be moved from the date of the primary election to the date of the general election,” he said of his proposal.
“Certainly, the situation in Paulding County brought this issue to my attention,” Efstration continued. “However, I believe this is good public policy for the state of Georgia. Incumbent elected officials should not be able to game the qualifying process in order to hand-pick an unopposed successor.”
Efstration acknowledged he’s facing a battle against time, given that Tuesday will be Day 39 of a 40-day session.
“It’s very late in the legislative session, [but] I would like to see passage this year,” he said.
New legislation cannot be considered after Day 30 of the session, so, Efstration had hoped to persuade a senator to tack the amendment onto a House bill dealing with election law that is already before the Senate. On March 13, he talked to Senate Judiciary Committee Chairman Josh McKoon, a civil litigator and Republican representing Columbus, about inserting the proposal into House Bill 742, which aims to create new superior court judgeships in the Coweta and Waycross circuits. McKoon declined.
“I’m not against the idea, but I don’t think there’s anything we can do to affect specifically the Paulding County situation,” McKoon said, referring to his doubts that the amendment, if passed, could apply retroactively.
McKoon also said he was worried the time crunch would prevent Efstration’s proposal from being fully vetted by lawmakers and that the proponents of HB 742, namely the Judicial Council of Georgia, would not be pleased if the bill were delayed because of changes.
Efstration said he is not deterred and is looking at other bills as possible vehicles for his amendment.
Common Cause of Georgia, a government watchdog organization, had called on Williams to withdraw from the race.
In a letter to Williams on Thursday, executive director William Perry called Williams’ actions and those of her father “not only unfair to the voters, but also to other potential candidates who may well have qualified had they known they would not face an incumbent judge in the election.”
The letter said that Common Cause would not object if Williams sought again to run for her father’s post if qualifying for the judgeship is reopened by the Georgia Secretary of State.
Perry said in an interview, “The bottom line for us is that it matters not whether she is a qualified candidate or would make a good judge. It’s just the simple fact that they denied the voters a choice.”
The Paulding County Bar Association also has been considering whether to issue a resolution that would reflect the bar’s concerns that Osborne’s and Williams’ gambit reflected poorly on the Paulding judiciary.
County bar president and Dallas lawyer Michael Mason told the Daily Report, “We have to respond in some way, and we are evaluating what we need to do,” he said. “The way it was handled doesn’t reflect well on the judiciary or the legal profession as a whole.”