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The Georgia Judicial Qualifications Commission has resorted to secrecy as it defends its right to publicly rebuke a judicial candidate. At issue is the JQC’s defense of a federal suit that challenges the commission’s right to referee judicial campaigns. George M. Weaver filed the suit shortly before he lost a bid to unseat Georgia Supreme Court Justice Leah J. Sears in a 1998 election. The JQC has said it was obligated to inform the public just six days before the election that Weaver’s ads were “false and misleading.” But the commission insists that it should be able to keep secret some of the contents of the proceedings that led it to make the public reprimand. Several other questions have arisen regarding the JQC’s reprimand of Weaver, which carries no formal disciplinary weight. The JQC publicly reprimanded Weaver for a “false and misleading” ad that said Sears “stands for” same-sex marriage. But court filings indicate that two of the three people on the JQC committee that took the action didn’t know Sears’ position on same-sex marriage, while the third thought she supported it. In addition, two JQC members who dealt with the Weaver matter previously had contributed to Sears’ campaign. Citing the JQC’s secrecy rule, attorney James C. Rawls has secured a federal protective order sealing JQC files in the Weaver suit from public view. Included under the order are court briefs, motions, depositions and orders filed in connection with the federal case, Weaver v. Bonner, No. 1:98-CV-2011 (N.D. Ga., April 24, 2000). The JQC’s secrecy rule bars from public disclosure all complaints, investigations of alleged judicial misconduct, JQC correspondence, communications, and minutes, except to a judge who is the focus of an inquiry. Previously, the JQC also barred those who filed complaints from ever discussing them. A January revision of the rules allows those who file complaints to discuss them after the JQC completes its investigation. Violators face charges of criminal contempt. Rawls, a First Amendment attorney with Atlanta-based Powell, Goldstein, Frazer & Murphy, who is defending the JQC committee, says he’s just following the JQC’s rules. In an unrelated suit, the American Civil Liberties Union is challenging the JQC’s secrecy rule, known as Rule 20, in U.S. District Court. In that suit the plaintiff had to be listed as “John Doe” to avoid a possible criminal contempt citation for going public with a JQC complaint. Rawls says he requested the protective order from U.S. District Judge Willis B. Hunt Jr. after Weaver “requested virtually every complaint about falsehood or fraud or lying or deception that the JQC had ever in its history looked at. � That is what would be under seal — complaints involving folks not parties to this case and actions taken that are not the subject of this case.” In 1998, Weaver challenged Sears, the Georgia Supreme Court’s first female African-American justice. Weaver is a former assistant state attorney general who, during Michael Bowers’ administration, wrote the appellate briefs defending Georgia’s sodomy law in Hardwick v. Bowers. He created campaign ads describing Sears as a “judicial extremist.” His ads claimed that Sears supported same-sex marriages, questioned the constitutionality of laws prohibiting sex with children under age 14, and called the electric chair “silly.” At the height of that campaign, the JQC committee rebuked Weaver in a public statement that accused him of circulating “false, misleading and deceptive” campaign ads. Weaver lost the election. Weaver sued the JQC committee members who had issued the rebuke, claiming they had violated his constitutional right to free speech. They “deliberately undertook to destroy the candidate’s political campaign and may well have damaged his business reputation and livelihood in the process,” he claimed in the suit. Weaver’s attorney, David J. Myers of Chicago-based Lord, Bissell & Brook, says Weaver’s legal team didn’t object to closing parts of the court record. “We needed to know the history of previous complaints and whether they demonstrated any pattern of bias or not,” he says. To do so, they were willing to abide by the JQC’s secrecy rule, he says. Among the complaints not made public were three other confidential cease-and-desist orders that the JQC elections committee issued during the 1998 primary campaign, according to court records. But JQC lawyers noted in court filings, “It was not necessary to release any � public statement during 1998 except for the release concerning Plaintiff Weaver.” Gerald Weber, legal director of the American Civil Liberties Union of Georgia, says he was surprised to hear that some court records in the Weaver case have been sealed. The ACLU filed a “friend of the court” brief on Weaver’s behalf, accusing the JQC elections committee of “government paternalism” and noting that the case “involves the most fundamental form of criticism — the right to run in an election and speak one’s mind.” “The Judicial Qualifications Commission is not a Star Chamber proceeding,” Weber says. “People have a legitimate interest in whether judges are doing their jobs properly, and the public has a right to that information with certain very narrow restrictions. “I don’t believe that there’s any rationale for putting this sort of information under seal when the JQC has already meted out its discipline, and the question before the court is whether they have done so properly.” Last year, the ACLU challenged the JQC’s secrecy rule, which Weber says led the JQC to revise it. The case was originally filed on behalf of “John Doe,” a jury foreman in a 1995 Carroll County murder trial of a 14-year-old African-American teenager. The pseudonym was necessary, according to the complaint, because the JQC’s secrecy rule then placed a permanent gag order on anyone who filed a formal complaint with the commission. John Doe v. Custer, No. 1:99-CV-3222 (N.D.. Ga., Dec. 19, 1999.) Doe complained that the 72-year-old trial judge fell asleep frequently during the trial. After the jury convicted the youth of voluntary manslaughter, the judge alluded to facts in his sentencing that were never presented during the trial, according to Doe. Weber says that after the ACLU sued, “The Georgia Judicial Qualifications Commission wisely realized the time had come to change this rule.” The new rule adopted by the Georgia Supreme Court “imposes secrecy only during the adjudication process before the JQC,” he says. Once an investigation is complete, anyone who complained is no longer silenced by what was once a perpetual gag order, he says. “If the JQC itself is to be subject to scrutiny from the public, people have to be able to talk about whether they are satisfied with the results of a JQC investigation,” Weber says. “The JQC shouldn’t be a secret society. � This rule sort of put a cloak over the process by which judges are investigated.” And he noted, by sealing part of the court record in the Weaver case, “The JQC would be defeating the purpose of the changes adopted by the Georgia Supreme Court, if they were to extend the investigation process into litigation about what they’ve done.” LACK OF INFORMATION CLAIMED What has apparently surfaced in some depositions taken during the Weaver case is testimony that members of the JQC’s elections committee could not say with certainty that Weaver’s statements about Sears were patently false or misleading, according to court briefs that remain public. But those depositions are not publicly available, Rawls said in response to a written request by The Daily Report to review them. “We have concluded that, unless and until Judge Hunt breaks the seal on the depositions which are filed with the District Court, they are private matters,” he wrote. According to one court brief filed on Weaver’s behalf, Fulton County Superior Court Judge Alice D. Bonner, the senior judge on the JQC’s elections committee, “apparently agrees, at least some of the time, with Weaver’s television ad statement that Sears supports same-sex marriage, though she inexplicably voted to condemn Weaver for it.” The brief quotes Bonner as saying that Sears “might believe that the Legislature should” legalize same-sex marriages. “That’s what I interpret, I guess from some of her writings,” Bonner is quoted as saying. “Not that she would require it, but it would be all right with her or she would support it or whatever.” In an opposing brief, JQC lawyers claim that Bonner’s quote, although accurate, “is presented in a misleading manner as it is pulled out of context and omits portions crucial to its understanding.” According to the Weaver brief, two other committee members — Ocilla businessman Charles A. Harris and Earle B. May Jr., the JQC’s then-director, testified in their depositions that they did not know what Sears meant in statements she had made about same-sex marriages. Two members of the committee that rebuked Weaver and Rawls were also contributors to the Sears campaign, the JQC members acknowledge in their responses to Weaver’s interrogatories. Committee member and JQC Chairman John E. James, a Macon lawyer, contributed $100 to Sears’ campaign in 1997. Rawls contributed $50 in 1997, and Rawls’ law firm — to which JQC member Jerry B. Blackstock also belongs — had contributed $1,000 to the Sears campaign, $500 of it the month that the committee first sent Weaver a cease-and-desist order. Blackstock was originally named in the suit but was dismissed because he had no role in the elections committee’s deliberations. Bonner contributed to Sears’ 1992 campaign for Fulton Superior Court. Rawls declined to address whether it was appropriate for him or his firm to contribute to Sears’ campaign and then be involved in a JQC action against her opponent. “It is not an ethical issue they have raised, and I am not going to comment on one.” But one JQC court brief notes that Rawls was not a member of the JQC committee, had no vote, and had contributed to Sears’ campaign before Weaver had even qualified. That brief also states that Bonner donated money to judicial candidates from her own campaign funds in 1992 and “does not consider herself a ‘fan or friend’ of Justice Sears.” James, according to the brief, contributed money to Sears at the request of his law partner before she had any opposition “and did not remember making the contribution.” But Myers says, “At a minimum, it looked bad, and I think the wisest course for both the JQC and for its attorneys is to disqualify themselves if they have supported in a tangible way any judge that has come before them in any proceeding. “We don’t know how deeply Mr. Rawls’ ideological support for Justice Sears goes and how deeply Powell, Goldstein’s goes. � It seems a pretty easy thing to say if you’re going to be deciding between challengers and incumbents or making any kind of a disciplinary decision about a sitting judge, you should have no political ties or contributions to that judge.”

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