The vote by leaders of the State Bar of Georgia illustrated just how closely split the legal community is over a proposed constitutional amendment that would give the Legislature control over the state’s judicial watchdog agency.
55-48.
That was the recent vote by the State Bar's Board of Governors against funding a last-minute media campaign against Amendment 3.
Those who argued against such a campaign warned fellow attorneys that if they did engage in a public fight, there could be legislative blow-back. The General Assembly's power and its interest in the Judicial Qualifications Commission was evidenced by lawmakers' vote earlier this year to abolish the JQC and reconstitute it. The tiny agency has been an independent and very aggressive enforcer of the rules governing judges' behavior, having removed more than 60 judges in the past seven years. Amendment 3 would enable the Legislature to rein in that power.
“We need to be pragmatic about this,” said Albany attorney Ken Hodges, treasurer of the State Bar. “Joe Citizen doesn’t care about a resolution by the Board of Governors, but the Legislature does, and we don’t need to (tick) them off.”
Later Hodges repeated his warning. “If we’re throwing fireballs at the Legislature, clearly they’re not going to give us a seat a the table.”
The other side, however, said confronting power was at the core of what the legal profession does. Lawyers are not cowards, they argued.
“You have to stand up … against bullies,” said Atlanta attorney Seth Kirschenbaum, who sponsored the failed resolution to launch a late-in-the-game campaign against Amendment 3.
The State Bar and commission members received virtually no notice from legislators that they planned a proposed constitutional amendment to strip the JQC of its independence. The law that will take effect if voters approve Amendment 3 next Tuesday will take away the Bar Association's three JQC appointments. All three would go to the speaker of the House and the lieutenant governor. Additionally, one of the two appointments the governor now has also would go to the Legislature. The Georgia Supreme Court would continue to name two commissioners.
At a meeting at Callaway Gardens Oct. 21, Kirschenbaum pointed out that other groups were not worried about legislative retaliation and were publicly opposing the amendment. these include the Georgia First Amendment Foundation, the Southern Center for Human Rights, the Georgia NAACP.
“Journalists came out against this amendment because they thought it was a threat to our justice system,” Kirschenbaum said at the Board of Governors meeting last month. “They were concerned about the politicization.”
So why won’t the State Bar do something, he asked?
The board voted to stay out of the debate, although it said individual members should continue to voice their opinions in their communities. That way, some argued, the Bar may still have a say if the 2017 Legislature revisits the law, assuming voters approve the amendment on Tuesday.
“We need to have good relationships with the Legislature,” said Cartersville attorney Lester Tate, a past chairman of the JQC and a past president of the State Bar. “But good relationships aren’t one side doing what the other side tells them they have to do. Good relationships aren’t built on threats and fear of retaliation. There are members of the Georgia Legislature who, in my view, started the attack.”
The Georgia Association of Criminal Defense Lawyers disagreed with what the Bar had decided and went public in opposition to Amendment 3, calling it a "threat to the freedoms and constitutional rights of all Georgians."
"We believe there should be a strong body to act as a watchdog over the judiciary," said Bob Rubin, president of the defense lawyers organization. "When you make this agency political, it spells the death knell for the agency being independent."
For 40 years, the Georgia Constitution has provided for a JQC shielded from politics. For years it operated in obscurity.
But it has been noticed in the recent past. In the past seven years, the JQC secured resignations or removed more than five dozen judges, some for egregious behavior on the bench, sexual harassment or, in some cases, committing crimes. One of those who resigned and promised to never again serve as a judge, Johnnie Caldwell, was elected to the state Legislature two years later and is one of sponsors the legislation to change the JQC.
There has been some tension in the past two years between Speaker David Ralston, R-Blue Ridge, and the State Bar as the organization considered a pending complaint against Ralston. On Wednesday, the Bar and Ralston's lawyers filed paperwork showing they had reached an agreement. Ralston is accepting a minor reprimand and admitting that he inadvertently violated two State Bar rules, and the Bar is dismissing the more serious charges that he misused client funds and intermingled clients' money with his own.
State Rep. Christian Coomer, R-Cartersville, said he had not seen any problems between the Legislature and the Bar. Ralston’s office said the speaker was not available to talk about the JQC and referred questions to Coomer, an attorney.
"There are always members of either organization that can be lightning rods for a particular issue," said Coomer, who served on a House study committee looking into reforms. "You can look and see who the Bar appointees have been."
Coomer said there is a "lack of leadership" at the JQC, which has been without an executive director since mid-August.
Earlier this week, Ralston told an Albany television station the Bar should not have any appointments to the JQC because only elected officials should decide the make up of the commission.
"What better accountability for people who have to face the voters every two years? Lawyers don't run for election to anything," Ralston said.
Some claim legislators have pushed to change the Georgia Constitution only because of complaints from their judge friends.
"Judges who have complaints are going to approach their legislators about intervening on their behalf," said state Sen. Josh McKoon, R-Columbus, who opposed the legislation.
House Judiciary Committee Chairman Wendell Willard, sponsor of the JQC bills, specifically blames Tate, whom the Bar appointed. Tate resigned less than two weeks after the final legislative votes and cited meddling by other branches of government in even the most ordinary of JQC business.
In comments to WABE on the amendment, Willard contended that the commission’s problems date to the “personal agenda Lester Tate had when he served on the JQC. The last thing we’re trying to do is politicize it.”
Tate laughed when told Willard blamed him and asked rhetorically: “Is Wendell Willard saying he is willing to rip the commission out of the Constitution solely as a means to get at me? I haven’t done anything that’s any different from any of the other (JQC) chairs who have served. Plus, I was only one of seven members.”
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