In past years, the state’s judicial watchdog agency has removed dozens of wayward judges from the bench. Some committed criminal acts, and many engaged in unethical or inappropriate behavior — such as brandishing a gun in open court or having a tryst with a local public defender.
But because of a foul-up caused by legislation passed a year ago, the state Judicial Qualifications Commission now finds itself in a state of toothless limbo.
It began when state lawmakers, seeking more oversight of the agency, agreed to put a constitutional amendment on the ballot this past November. That amendment, approved by voters, abolishes the JQC as of June 30 and provides that a newly constituted commission be established the following day.
But lawmakers also passed legislation on the last day of the 2016 General Assembly that called for the JQC to be abolished on Dec. 31 — six months before it’s to be abolished by the constitutional amendment. This conflict has led to widespread confusion, with lawmakers scrambling to fix it.
So at least for now, it appears that the agency can take no formal disciplinary action against any judge who runs afoul of the code of judicial conduct. Or, if it does take action, the commission will likely find its authority being challenged in court.
“It’s always unfortunate when there’s a less than stable situation,” said Ron Carlson, a University of Georgia law professor. “Hopefully we’ll soon get some clarification as to who’s in charge.”
The problems occurred with the passage of House Bill 808. Supporters of the bill accused the JQC of not giving enough due process to judges being investigated for misconduct. These same lawmakers said the agency needed to be held more accountable for its actions.
Sen. Josh McKoon, R-Columbus, who opposed the legislation, said the agency didn't need to be changed.
“I thought the JQC was very effective,” he said. “I’d seen it work in my part of the state, in other parts of the state. For the amount of money that we appropriate for the JQC to operate, for them to have removed something like 60 judges in a four- or five-year period, that’s a pretty good return on investment.”
A final version of H.B. 808 was voted on the Senate floor after midnight on the last day of the 2016 legislative session, McKoon said.
“The House had amended it and sent it back to us,” he said. “We didn’t even have the House amendment printed and before us when we voted on it. So literally nobody knew or could have known what they were voting on. It was hurriedly drafted, so I’m not surprised there have been some nasty, unintended consequences.”
Credit: Bob Andres
Credit: Bob Andres
Rep. Wendell Willard, a Sandy Springs Republican and a chief sponsor of H.B. 808, agreed that the legislation has caused confusion.
“The bill was going back and forth between both chambers on the last day in the final hours,” he said. “There were things that were put in there that were questionable. Unfortunately, we just ran out of time.”
New legislation will be introduced soon after lawmakers return from taking next week off, said Willard, who chairs a key judiciary committee. One new fix, he said, will be to set up JQC hearing panels that decide whether a judge should be punished for misconduct. These new panels would be separate from the JQC panels that initiate investigations of that same judge.
The JQC continues to be a “valid, functioning agency,” Willard said. “We always knew we’d come back this session and address any potential problems in a thorough, explicit manner.”
In the meantime, appointments are being made for the new commission. Gov. Nathan Deal recently named prominent Athens attorney Ed Tolley to be the JQC's next chairman. Tolley has made a name for himself representing high-profile clients, including former University of Georgia athletes and coaches.
“I’m flattered the governor thought enough about me to ask me to do it,” Tolley said. “It’s an awful lot of responsibility.”
Tolley also serves on the prior version of the JQC, which he said continues to accept and screen complaints about judicial misconduct. But the agency is not expected to take formal action against any judge until the new board is confirmed by the Senate, he said.
“There’s been a lot of drama, but there shouldn’t be this type of drama,” Tolley said. “This is an essential element of state government and it’s an essential part of the judiciary. We need to get it back to where it needs to be.”
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