Georgia State Capitol Building (John Disney/Daily Report)
New legislation intended to redesign the state Judicial Qualifications Commission for the second time in a year is “a huge improvement” over the current law, which took effect Jan. 1, said a Georgia State University professor of law and ethics.
The new bill (HB 126), introduced Wednesday by House Judiciary Committee Chairman Wendell Willard, R-Sandy Springs, strengthens due-process procedures for a reincarnated judicial watchdog agency now controlled by the Legislature, said Clark Cunningham, who also directs the National Institute for Teaching Ethics and Professionalism. Cunningham said the current law gave the Legislature “more control over the Judicial Qualifications Commission than is the case in any other state in the country.”
“That was certainly a concern to me as an academic,” he said, citing possible “political interference” if the watchdog agency were to continue to be dominated by legislative appointees. “Any state wants its Judicial Qualifications Commission to be as insulated as possible from political influence and pressure.”
The new bill dramatically reconfigures the JQC, expanding its membership from seven to 10 commissioners and splitting it into two panels: one to investigate judicial ethical infractions and a second to adjudicate them. The new bill does retain provisions that took effect Jan. 1 that for the first time in the JQC’s history gives the speaker of the House and the president of the Senate (who is also the state’s lieutenant governor) authority to appoint two members each. The new legislation designates that the four legislative appointees would serve on the proposed new investigative panel.
The proposed second panel would adjudicate ethics charges recommended against judges by the investigative body. The new bill would for the first time give the state Supreme Court significant new authority to influence the JQC’s disciplinary recommendations by doubling its total appointments from two to four. It also would give the Supreme Court the same number of appointments as the General Assembly. In addition, the governor would appoint a member of the investigative panel but would no longer appoint the agency chairman—a task the new bill delegates to JQC members.
Cunningham said that dividing the watchdog agency into an investigative panel and a separate hearing panel is in keeping with best practices recommended by the American Bar Association that have been adopted by a majority of states across the country.
The new bill would eliminate a number of new confidentiality provisions in the current law. Those provisions had thrown a blanket of secrecy not only over JQC investigations but also over formal ethics charges levied against judges accused of violating the state Code of Judicial Conduct, including the ethics proceedings at which those charges were adjudicated, and virtually all records associated with disciplinary recommendations. The new bill also proposes to subject the JQC, with some exceptions, to the state’s open meetings law.
Willard told the Daily Report on Thursday that the new bill was influenced in part by conversations he has had with Georgia Supreme Court Justice David Nahmias, the high court’s liaison to the JQC. Nahmias last year convened an ad-hoc committee to study legislative changes to the current law and the operating rules of the JQC abolished by constitutional amendment on Dec. 31. Cunningham is a member of that committee, although he emphasized that his comments about the new bill were made independent of his work for it.
Willard said that he and fellow legislators originally considered giving the Supreme Court authority to name all three members of the proposed hearing panel. But he said Nahmias suggested that while the court was comfortable naming a judge and an active member of the State Bar of Georgia to the panel, it would prefer to defer the appointment of a proposed lay member of the panel to someone else. Willard said legislators decided to give that authority to the governor.
Willard said the new legislation is an acknowledgement that the current law—passed after midnight in the waning minutes of the 2016 legislative session—was not intended to be “the final product.” Instead, he said, some form of enabling legislation was needed in order to help secure passage of the constitutional amendment abolishing the JQC as an independent constitutional agency. But, he explained, “If the constitutional amendment did pass, we knew there would need to be a lot of thought put into the structure of the [new] JQC.”,