Georgia’s judges and its judicial organizations are prohibited from filing friend-of-the-court briefs in pending cases, under an opinion issued Wednesday by the state’s Judicial Qualifications Commission.
The rules governing judges are designed to make sure that the state has neutral judges who give every case a fair hearing, said Lester Tate, an attorney who is a member of the commission.
When judges weigh in on a case, Tate said, “it certainly looks like judges telling their brethren this is what we judges want,” Tate said. “I think it has the potential to undermine public confidence in the judiciary if the judges collectively or singularly are taking positions.”
The request for the commission's opinion came after the state's Council of State Court Judges in July weighed in on a significant case before the Georgia Supreme Court challenging some practices of private probation companies. Many courts across Georgia use private companies to supervise people placed on probation for misdemeanor offenses.
The State Court Judges’ brief, written by former State Supreme Court Chief Justice Leah Ward Sears, disagreed with a ruling by Superior Court Judge Daniel Craig of Augusta, which held that a large private probation company was operating outside the law. The judges urged the Supreme Court to reverse Craig’s ruling.
Craig’s order, the judges argued, “has had a chilling effect on sheriffs and State Court judges in counties that use private probation service providers.”
While the Judicial Qualifications Commission’s opinion did not mention the brief by the Council of State Court Judges, it said filing a friend-of-the court brief is “improper and prohibited by the Georgia Code of Judicial Conduct.”
Director Ronnie Joe Lane, who is a former Superior Court Judge, said the commission had never issued an opinion about whether or not such briefs are appropriate from judges or judicial organizations.
“The commission just felt like it was not proper to do that and that they [judges] needed to stay out of it,” Lane said.
Tate emphasized that the opinion was meant to clarify the commission’s view of such actions and was not meant as a criticism of any particular party.
Sears, the former chief justice who wrote the brief for the State Court Judges, said Wednesday that she disagreed with the commission’s opinion.
Sears said the judges were not wading into a private dispute.
“The judges were trying to make a comment on what could be a major problem in the public sphere because they know very well how private probation services impact their courts and the communities in which they serve. They are uniquely qualified to have views on that.”
Augusta attorney Jack Long, who is challenging private probation in the case before the Supreme Court, had requested the commission opinion and said he was pleased.
He and other critics argue that private probation companies are operating illegally and abusing low-income defendants. The Supreme Court is scheduled to hear oral arguments in the case later this month.
“The Supreme Court of Georgia,” he said, “will have to make the decision without the influence of any judges.”
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