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An ongoing battle between a former judicial candidate and the Georgia Judicial Qualifications Commission broaches a broader question. Should judges be elected? “There is a greater question raised by this case,” U.S. District Judge Willis B. Hunt Jr. reflected from the bench Wednesday after hearing arguments from attorneys representing the JQC and George M. Weaver. “What do you do about judicial elections in the long haul? � That question ultimately has to be addressed.” Georgia Supreme Court Justice Leah J. Sears defeated Weaver, a partner in the Atlanta firm of Hollberg, Weaver & Kytle, in 1998. During the election campaign, the JQC accused Weaver of circulating “false, misleading, and deceptive” campaign ads. The rebuke was released to a dozen media outlets just six days before the 1998 primary. One Weaver television advertisement singled out by the JQC said: “What does Justice Leah Sears stand for? Same-sex marriage. She’s questioned the constitutionality of laws prohibiting sex with children under 14. And she calls the electric chair silly.” Weaver promptly sued, in Weaver v. Blackstock, No. 1:98-cv-2011 (N.D. Ga., July 16, 1998), claiming that the JQC was interfering in the political campaign and was treading on his right to free speech. On Wednesday lawyers for Weaver and four JQC members named in the former candidate’s suit argued opposing motions for summary judgment before Hunt. David Myers, an attorney with Lord, Bissell & Brook in Atlanta, argued that the JQC’s public rebuke had cost Weaver the election. “Mr. Weaver had the misfortune to be at the intersection of several different influences,” Myers said. He said the JQC doesn’t like judicial elections and is overly sensitive to controversy. And he claimed the JQC wanted to shield Sears. The JQC’s intent “was to get involved in the election and affect results,” Myers claimed. “We’re talking about a government agency’s deliberate purpose and intention to affect an election.” But the JQC’s attorney, James C. Rawls, a partner with Atlanta-based Powell, Goldstein, Frazer & Murphy, said truth was the real issue. “The most important principle of law before this court is this: there is no constitutional right to lie.” A lie, Rawls argued, is not protected speech. “A liar is in the same First Amendment class as a pornographer,” he said. But Myers argued that Weaver neither lied nor misled the public in his campaign advertisements attacking Sears. “Nothing he ever said was false,” he insisted. “For him to be pilloried throughout this is a disgrace.” When deposed, JQC members of the special committee on judicial election campaign intervention swore they didn’t know Sears’ position on same-sex marriages, Myers said. They had no specific knowledge of any of her opinions, he said. Then how did JQC members know the Weaver ads were false? he asked. Weaver’s creation of controversy was the issue, Myers insisted. If the JQC found it necessary to question publicly Weaver’s political tactics, Myers suggested the committee should have withheld public comment until after the July 1998 election to avoid influencing voters. Replied Hunt: “How could you be informing the electorate if you did it post-election?” Myers also claimed that judges on the JQC were governed by “a club mentality” that led them to intervene on behalf of fellow judges who were under political attack. Rawls confirmed that the JQC’s decision to rebuke Weaver publicly during the campaign and publicize it to the media “was part of an experiment to see if we can do something about lies that attack the integrity of the judicial system.” The JQC has no real authority, Rawls said. “All the JQC can do is speak. � And only after it gives a warning and a fair warning at that.” Before it issued its rebuke, the JQC sent Weaver a private warning asking him to modify a campaign flier that attacked Sears. Weaver did alter the flier but then produced a television ad that was, Rawls said, “much worse.” The JQC found itself with no other alternative than to go public, Rawls argued. “They could only tell the public. They cannot and did not discipline him. They cannot and did not fine him. They cannot and did not disbar him.” RIGHT TO EXPRESS OPINIONS The judges, he argued, had just as much right as Weaver to express their individual and collective opinions. “In the marketplace of ideas, the public has a right to hear it,” Rawls said. “Government speech is allowed,” and Weaver’s lawsuit is “an attempt to muzzle the JQC,” he asserted. Judicial elections are, or should be, different from other political campaigns, Rawls said, and the JQC has the responsibility of “upholding the impartiality and integrity of the judiciary.” “Lawyers and judges can be held to a higher standard,” he said.

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