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Cherokee County’s chief magistrate judge is fighting to keep his seat on the bench in a case that may clarify the limits of the Georgia Judicial Qualifications Commission’s authority. Charles T. Robertson II, who became a judge in 2001, appeared before a seven-member panel of the JQC at the Georgia Supreme Court last week to argue that two military convictions, both more than 20 years old, don’t disqualify him from being a judge. At issue is whether the JQC has jurisdiction to discipline a judge for crimes committed before he became a judge. While serving in the U.S. Army during his early 20s, Robertson was twice court-martialed and convicted of crimes. In 1979, he was convicted of the unauthorized sale of military property — one tracker infrared guided missile and a test set guided missile remote control component, valued at $4,741. He was sentenced to a partial forfeiture of pay for six months and a reduction in rank to the lowest class of enlisted private. Then in 1980, he pleaded guilty to possession and sale of methamphetamines. He was sentenced to a forfeiture of all pay and allowances and was issued a bad conduct discharge from the military. After leaving the military, Robertson eventually went to college, graduating from Kennesaw State University in 1990, and Atlanta’s John Marshall Law School in 1993. He ran his own general practice firm in Cherokee County until 1998, when he merged with a local real estate firm to form Walker & Robertson. He ran a hotly contested campaign for the county’s chief magistrate post and won, becoming a judge in 2001. The JQC, represented at the Aug. 4 hearing by former Georgia Attorney General Michael J. Bowers and T. Joshua R. Archer, both Balch & Bingham partners, argued that Robertson should be removed from the bench because the convictions are equivalent to felonies and crimes of moral turpitude. Convicted felons and those guilty of moral turpitude may not be judges under Georgia law, they argued. Robertson was represented by David J. Myers, a former Georgia attorney now practicing with Filicetti Law Office in Boise, Idaho, and retired Georgia Court of Appeals Presiding Judge Marion T. Pope Jr. Pope did not speak during the hearing, but Myers argued that his client’s convictions aren’t felonies. The heart of Myers’ argument, however, was that the JQC doesn’t have jurisdiction in the case because the behavior in question took place before Robertson became a judge. “To my knowledge … this is the first time this commission … has ever considered disciplining or removing a judge based on conduct that occurred before he became a judge,” Myers said in his opening arguments, adding, “You don’t have jurisdiction over a judge just because he’s a judge.” Cheryl Fisher Custer, executive director of the JQC, said that she’s not aware of formal charges — other than those against Robertson — filed by the JQC for behavior that occurred before a person was a judicial candidate or judge. But, she noted, most JQC proceedings never reach the formal charges stage, and are handled on a confidential basis. The jurisdictional question means that a decision about Robertson’s fate on the bench — however it is decided — will, by necessity, outline the scope of the JQC’s authority in a way never before addressed, at least at the formal charges stage. The JQC panel, which heard about two hours of arguments, will make its recommendation sometime in September to the Georgia Supreme Court on whether Robertson should be removed from the bench, according to Custer. The state Supreme Court does not have to follow that recommendation, and its decision is final. JUDGE DID NOT TESTIFY Robertson, wearing a brass name tag on the lapel of his suit that identified him as a Cherokee judge, sat quietly between his lawyers throughout the two-hour hearing. His wife and three school-age children also attended the hearing, sitting directly behind him. He did not testify. But Myers, Bowers and Archer found plenty to spar about. They butted heads over whether Robertson’s convictions rise to the level of felonies, which would disqualify him from office. The military has its own system of justice and does not designate crimes as felonies or misdemeanors. Bowers called no witnesses and offered as evidence only a set of stipulations — Robertson’s two military convictions, and the maximum allowable punishment for each. Bowers argued that the maximum penalties — a year’s confinement at hard labor for the methamphetamine conviction, and five years’ confinement at hard labor for selling the missile devices without property authority — indicated that they were equivalent to felonies in the civilian justice system. Even though Robertson didn’t get the maximum penalty in either case, he argued, the issue was the maximum penalty that could have been imposed. Myers argued that the convictions weren’t felonies. To bolster that argument, he cited election eligibility statutes that say a convicted felon may run for public office if the felony is more than 10 years old, and if the candidates’ civil and political rights — such as voting and jury service — have been restored. He argued that Robertson proved he never lost his civil and political rights — and therefore isn’t a felon — when he petitioned the Georgia Board of Pardons and Paroles to restore those rights, and the board “took no action,” Myers said. Myers called Walton C. Davis, assistant director of the clemency division for the board, to testify. But Davis said the board denied Robertson’s request, and told him he could reapply in November 2004. ELECTION FOE AIRED CONVICTIONS Myers also argued that his client wasn’t a felon because Cherokee County’s elections commission allowed Robertson to run for judicial office even after a political opponent made his military convictions known. Myers’ troubles on the bench began shortly after he was elected. A Cherokee County retiree filed suit alleging Robertson wasn’t eligible to hold public office because of his military convictions. The suit was dismissed because it was filed in the wrong forum. At the time, Robertson said he was the victim of a vendetta by plaintiffs’ lawyer Luann Evans. Evans left her law firm when it signed a merger with Robertson’s firm because she didn’t want to practice with him. Robertson said the effort to unseat him was part of a vicious election campaign in which he was accused of being a Russian spy, arms dealer and Vietnam deserter. Though the latter charge was printed on supermarket bulletin boards, Robertson said that the Vietnam War was over by the time he joined the military. CONSTITUTIONAL QUESTION One of the most contentious issues centered around the Georgia Constitution. In his opening argument, Myers cited Georgia Constitution, Article VI, Section 7, Paragraph 7, which addresses discipline, removal and involuntary retirement of judges. In pertinent part, the provision says: “Any judge may be removed, suspended, or otherwise disciplined for willful misconduct in office, or for willful and persistent failure to perform the duties of office, or for habitual intemperance, or for conviction of a crime involving moral turpitude, or for conduct prejudicial to the administration of justice which brings the judicial office into disrepute.” Myers argued that the entire paragraph applies only to behavior that occurs when a judge is in office — which would mean that the JQC has no jurisdiction over behavior that occurs before a judge takes office. Bowers responded in his closing argument by parsing the language of Art. VI. “Note there is no restriction of that conduct [moral turpitude] having occurred in office,” he said, pointing out that other provisions in Article VI are followed by specific references to judicial office. Bowers cited a case from the highest military court. Reading from that case, he said, “An offense for which a dishonorable discharge is imposable might properly be considered a felony.” Myers, clearly riled, stood to make his own closing argument. “Here’s an honest but not necessarily artful response to Mr. Bowers’ central thesis, which is brand new in this case,” he said. “Wow.” Using Bowers’ interpretation of Article VI, he asked, “Every judge with a felony or moral turpitude conviction is unfit for office? That’s outrageous.” He also argued that despite the wording of Article VI, the provision is not referring to the time a crime was committed but rather provides a definition of the offense. As an example, he noted Article VI’s “habitual intemperance” language. There’s no mention in that phrase that a judge must be in office when the behavior occurs, he said. So under the JQC’s interpretation, all judges who are recovering alcoholics should be removed from the bench, he said. He also argued that JQC Rule 15, which discusses suspending a judge who’s indicted for a felony, only applies to convictions that occur while the judge is in office. JQC Canons 1 and 2, he said, also discuss conduct in office by a sitting judge. “You don’t have jurisdiction over a judge just because he’s a judge,” Myers said. In an interview after the hearing, Robertson said he’s disclosed his convictions and argued that they’re not felonies many times before — to get into law school, to take the bar exam, and to be qualified to run for judicial office. And each time, he said, he’s prevailed. When he applied to take the bar, for example, the Board to Determine Fitness of Bar Applicants initially deemed his drug conviction a felony, and said he needed a pardon. The board later decided that it wasn’t a felony and approved his certification. Hulett H. “Bucky” Askew, director of the Office of Bar Admissions, has said that he can’t reconstruct the board’s reasoning because Robertson’s file was destroyed long ago, per office policy. But, Askew added, a handful of convicted felons have been admitted to practice law locally in the past decade or so, if they first proved they were rehabilitated or pardoned. Robertson said that given his success proving he’s not a felon in other arenas, he’s confident that he’ll prevail with the JQC. “I’ve remained a law student. I’ve remained a lawyer. I’ve remained a judge. And whatever happens here, I’ll remain a husband and father.”

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