The legal field, much like the medical field, is considered one of the most important and prestigious fields to work in, because, like the medical field, lawyers and judges hold the lives of others in their hands. Judicial decisions can end a man’s life, take a mother’s children away, and deprive the average citizen of their freedom and property. A principle inherent to the American legal system is that an independent and fair judiciary will interpret and apply the laws of the land.[1] “Judges stand at the pinnacle of the justice system, and each judge…represents the face of justice.”[2] Professor McKoski describes the role of judges as gatekeepers to confidence in the justice system: “Confidence in the administration of justice is synonymous with confidence in judges. This all-important confidence is undermined by any conduct which diminishes society’s belief in, or respect for…judges.”[3] The Georgia Constitution and the Georgia Code of Judicial Conduct (“the Code”) requires that judges be held to a higher standard of conduct than the general public. Georgia’s Code of Judicial Conduct provides, in part, that because judges “are a highly visible symbol of government,” they “should aspire to conduct themselves with the dignity accorded their esteemed positions.”[4]
While lawyers are viewed as functional elements in the administration of justice, judges are generally equated with the idea of justice itself.[5] Judges, being highly regarded by society, bear the burden of maintaining the appearance of propriety at all times, both in their private and professional lives. Failure to do so can lead to ethical sanctions, discipline, and loss of confidence of the public. Federal law also provides that a judge may be criminally sanctioned for violations of the established penal code.[6] The threat of ethical sanctions and criminal prosecution were established as a means of deterrence against judicial misconduct, and to remind the public that judges can be held accountable for their actions in the same manner as a layperson.[7] The Court in Cone v. Cone said, “A judge increases his stature by…the extent to which he squares his conduct with approved moral and professional standards. The public has a right to expect that of him….”[8]
In Georgia, a complaint of judicial misconduct may be filed with the Georgia Judicial Qualifications Commission (“Commission”).[9] The Commission is tasked with investigating complaints of judicial misconduct and making disciplinary recommendations to the Supreme Court of Georgia. Additionally, Georgia’s prosecuting attorneys provide the Commission with notification when a judge is indicted on felony charges.[10] Upon notification, the Commission automatically begins an investigation into the judge’s behavior both professionally and personally.[11] If the Commission finds that the “indictment relates to, and adversely affects the administration of the office of the indicted judge, and that the rights and interest of the public are adversely affected thereby” the Commission will suspend the judge immediately and indefinitely, pending the outcome of the criminal case.[12]
Conversely, there appears to be no requirement that the Commission must forward allegations of criminal wrongdoing lodged against a judge, to the appropriate prosecutor’s office for additional follow-up. Instead, it appears that criminal allegations received by the Commission may be resolved alongside the ethical complaint by way of judicial sanction or other disciplinary (non-penal) action. There are instances where the complaint received by the Commission included allegations of both ethical and criminal violations. In some instances, the judge in question has agreed, per a recommendation from the Commission to resign from the bench. His or her resignation has effectively resolved the entire complaint, including any criminal allegations. No additional court documents were recorded to indicate an indictment or additional court action regarding the alleged criminal aspects of the complaint.[13]
The one-sided nature of this reporting scheme has the potential to undermine the public confidence in the impartiality of the criminal justice system if criminal conduct is treated only as a matter of judicial misconduct.[14] It should not be sufficient to dispose of a complaint of alleged criminal conduct based solely on the ethical sanctions imposed on the judge by the Commission.
This Comment addresses the possible flaws in the judicial disciplinary process: the Commission’s discretionary power to review and resolve judicial complaints that include allegations of criminal behavior; the absence of a mandatory reporting requirement; and a lack of transparency in the Commission’s processes. These possible flaws may lead to loss of public confidence. Section one of the Comment reviews the Georgia Judicial Qualification’s Commission and its goals and boundaries in the judicial disciplinary process. In section two, the Comment discusses the criminal justice system and the idea that the law deals with all persons impartially. Section three discusses the processes followed by the Commission to explore where the breakdown in the process occurs. Finally, this Comment suggests ways to bridge the gap between investigation for possible ethical violations and investigations for possible criminal conduct in cases in which allegations against a judge includes both ethical and criminal breaches.
I. The Georgia Judicial Qualifications Commission
The Judicial Qualifications Commission (“Commission”) was created in 1972 by Constitutional Amendment, in part, for the purpose of hearing and investigating complaints of ethical misconduct made against Georgia judges.[15] The Commission is also authorized to issue Advisory Opinions interpreting proper judicial conduct, as established by The Code of Judicial Conduct and the Georgia Constitution (the “Code).[16] The Commission consists of a board of seven members; two judges, selected by the Supreme Court of Georgia; three lawyers, each with a minimum of ten years of legal experience, appointed by the State Bar of Georgia; and two citizens (not State Bar admitted) who are appointed by the Governor.[17] The Commission’s jurisdiction extends over all active Georgia judges or state officers exercising judicial authority, excluding coroners.[18] The overall purpose of the Commission is not to punish judges, but instead, to protect the judicial system and the public from further acts by judges that are detrimental to the fair administration of justice.[19]
Complaints of judicial misconduct can be filed by anyone.[20] This includes laypersons, lawyers, other judges, and even people having appeared before the judge for any reason.[21] However, the complaint must be based on allegations of violation of one or more of the Canons of The Code of Judicial Conduct.[22] The Commission is not authorized to hear legal matters.[23] Complaints that directly relate to a ruling on the merits of a case or procedural rulings are dismissed as facially insufficient and outside of the Commissions’ jurisdiction.[24]
Upon receiving a complaint, or other information intimating that a judge has committed “willful misconduct”[25] in office, or conduct prejudicial to the administration of justice which brings the judicial office into disrepute,”[26] the Commission assigns the complaint a docket number and the board reviews the complaint. Upon completion of its initial review, the board decides if the complaint has merit.[27] The standard of proof used is clear and convincing evidence. [28] The Commission resolves questions of evidentiary competence and admissibility under the Rules of Evidence as applicable in civil claims.[29] If the complaint is facially meritorious, the Commission sends the complaint to the judge against whom the complaint is filed.[30] The judge can respond to the complaint via an informal letter directly to the Commission.[31] Depending on the response of the judge,[32] the Commission may reprimand or informally sanction the judge[33] or continue to investigate the complaint. Upon completing the investigation, the Commission can dismiss the complaint for lack of merit or go forward by issuing a Notice of Formal Proceedings to the judge.[34] During the formal proceedings the judge can be represented by a lawyer, evidence is collected, and the complainant is usually called to testify under oath.[35]
When reviewing complaints filed against judges, the Commission is tasked with determining whether there is sufficient evidence that the alleged conduct violated one or more of the Canons or any criminal statutes.[36] If the Commission determines there is insufficient evidence that a violation of the Canons occurred, the complaint is dismissed.[37] If sufficient evidence of a violation does exist, the Commission will proceed with its investigation and begin formal proceedings against the judge. [38]
However, before a formal hearing occurs, Rule 4(d) of the Rules of the Commission allows one or more of its members to hold a private, confidential, conference with the judge at issue “to make informal recommendations to the judge concerning the subject matter of the inquiry and a satisfactory disposition thereof.”[39] Rule 4(f) also allows the Commission to consider recommendations of disposition from the judge at issue.[40] Upon completing the hearing the Commission makes a disciplinary recommendation to the Georgia Supreme Court.[41] If there is sufficient evidence of the criminal conduct as alleged in the complaint, the Commission can recommend that the appropriate prosecutorial office pursue criminal proceedings.[42] Once all recommendations have been made, the Commission considers the complaint closed, the judge receives a Notice of Disposition, and the Commission publishes a copy of the Disposition on its website.[43]
Once a resolution to the complaint has been reached, the Commission publishes the sanctions or disciplinary measures taken against the judge.[44] But all proceedings of the Commission, including, but not limited to investigations, conferences, correspondence, and other document acquired in relation to the complaint remain confidential.[45] Therefore, the publication of the complaint Disposition does not include notes from the investigation nor the disposition of criminal allegations included in the initial complaint. These omissions leave the complaining party without closure regarding the criminal allegations. Expeditious disposal of misconduct complaints helps preserve the integrity of the judicial system. In cases where the initial complaint includes allegations of criminal activities, however, a speedy disposition that does not adequately and transparently address allegations of criminal conduct can result in a perceived disruption of justice.[46]
Let us consider, hypothetically, a complaint is properly filed with the Commission against a judge, alleging several violations of Canon 2A (“judges shall respect and comply with the law”), Canon 3B (“judges should be faithful to the law”) of the Canons of Judicial Conduct (“Canons”), violation of GA. CODE ANN. §16-10-1 (violation of oath of office by public officer),[47] and violation of GA CODE ANN. §16-8-4 (theft by conversion).[48] According to the hypothetical complainant, the judge improperly sentenced the defendant to prison in violation of his due process rights, ordered solitary confinement for an indefinite amount of time, and denied the defendant any outside activity time. The defendant claims the solitude led to severe depression, from which, even upon release he has not recovered from. The complaint further alleges that the judge received cash payments directly from the complainant which should have properly been turned over to the Department of Probation; that no payments were turned over to the Department of Probation; and that the judge instead converted the payments into what the complainant called his “slush fund”. Assume further that the complainant claims the judge often bragged that the so-called “slush fund” was “paying off” the judge’s new car. The Commission instigates a review of the allegations and finds sufficient evidence to proceed with a full investigation. The judge is served, per policy, with a Notice of Formal Proceedings. During the investigation phase, but prior to holding a formal hearing, a delegate of the Commission meets with the judge and advises the judge that voluntary resignation would be resolve the entire complaint. The hypothetical judge agrees to resign and provides the Commission, the Georgia Supreme Court, and the Georgia Governor with a formal letter of resignation. The letter indicates the judge will resign from his current position at the end of the current term (which is six months in the future), he will not attempt to run for re-election, and he will not preside over any cases for the remaining six months of his appointment. All interested parties accept the resignation and the matter is considered closed.
The complaint was handled efficiently and expeditiously and resulted in removing an allegedly unfit judge from the bench. However, the question begs to be asked, was justice best served by this resolution? By simply agreeing to resign, at a date of his choosing, the judge effectively avoided the criminal element of the complaint (violation of GA CODE ANN. §16-10-1 and GA CODE ANN. §16-8-4) any fines or restitution and/or a one to five year prison sentence.
Also consider, as an example of the Commission’s ability to circumvent the criminal justice system through judicial discipline, In re An Inquiry Concerning a Judge Oliver Harris Doss, Jr.[49] Judge Oliver Harris Doss, Jr. presided as a judge of the Superior Court of the Appalachian Judicial Circuit by appointment from then Governor Sonny Perdue. On November 9, 2009, the Commission filed formal charges against Judge Doss for numerous legal and ethical violations.[50] The formal charges included twelve counts alleging, among other things, intemperance on the bench, sexual assault, assault, misappropriation of funds, failure to be courteous, and patient to lawyers, court personnel, and litigants.[51] The formal charges included twelve counts alleging, among other things, intemperance on the bench, sexual assault, assault, misappropriation of funds, failure to be courteous, and patient to lawyers, court personnel, and litigants.[52] Specifically, the judge was accused of throwing papers and pens at court personnel; paying unauthorized “bonuses” to his court personnel; touching a Georgia state employee in a threatening and insulting manner; appropriating computers owned by the State of Georgia for the personal use of himself, his wife, and his son; and several violations of the Judicial Code of Conduct.[53]
Judge Doss was notified of the Commission’s investigation into his courtroom behavior prior to the formal charges being filed by the Commission. According to a news article written by Tom Crawford of the Georgia Report, in an effort to head off the coming charges and subsequent trial before the Commission, Judge Doss submitted a letter of resignation to Governor Purdue on November 6, 2009.[54] Mr. Crawford claims that according to Judge Doss’ letter to Governor Purdue, Judge Doss was informed that the pending charges against him could be avoided if he resigned from the bench by November 7, 2009. Although records indicate the Commission filed formal charges against Judge Doss two days after he submitted his letter of resignation, the Commission did not post a final disposition to the charges on their website.[55] Additionally, there is no evidence that a criminal investigation ensued or that any criminal charges were filed against Judge Doss. [56] In fact, there is no evidence suggesting that, beyond Judge Doss’ voluntary resignation, there have been any consequences for the actions alleged by the Commission. Currently, Judge Doss is still licensed to practice law in Georgia and the Georgia Bar shows he is an active member in good standing.[57] Additionally, the Bar shows no history of public discipline on file for Judge Doss.[58]
The Rules of the Judicial Qualifications Commission (“The Rules”) do not specifically require allegations of criminal behavior be forwarded to the appropriate prosecutor’s office. However, the Rules also do not explicitly prohibit the Commission from forwarding a request for further investigation to the appropriate criminal justice department. It appears that the Commission can effectively close the criminal aspect of the complaint by recommending and enforcing a disciplinary action on the ethical complaint. The result does not measure up to the underlying principles of the criminal justice system or those of the Canons of Judicial Conduct.
“Judges shall participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe such standards of conduct so that the integrity and independence of the judiciary may be preserved;”[59] and “Judges…shall act at all times in a manner that promotes public confidence in the integrity…of the judiciary.”[60]
As Justice Hunstein noted, [t]he effect of the failure of a judge to uphold the law… must seriously impair the public’s confidence not only in the legal profession but in the entire judicial system.”[61]
II. The Criminal Justice System and Judicial Discipline
The Code of Judicial Conduct establishes ethical standards of conduct for judges.[62] The Code is Utilitarian in nature, in that it is forward looking and seeks to deter future instances of unethical behavior rather than to punish a judge for a previous breach.[63] With this in mind, one can infer that the need to investigate and prosecute (when appropriate) a judge for criminal conduct is ground in the same utilitarian principles.
The Doctrine of Utilitarianism is an ethical doctrine that says an individual’s conduct should be directed towards promoting the greatest happiness of the greatest number of persons.[64] Utilitarianism broadly refers to theories that social benefits can be realized through punishment.[65] The theory applies punishment to an individual when a social harm[66] has occurred. The punishment is applied in an effort to ensure the harm will not be repeated by way of general deterrence,[67] individual deterrence,[68] and reform.[69] The primary goal is to reduce an individual’s harm to the greater mass (society) while encouraging a higher standard of ethical behavior from that individual through acceptable means of punishment.
By fostering internal peace and security, and facilitating cooperation, general compliance improves the quality of social life for all the members of the community. When individuals relax this self-restraint and transgress the rules, they threaten to thwart the general valuable order by inviting imitators to follow their example. Consistent with this principle, punishment is warranted to strip those who break the rules from the advantage they gain over the rest of the community.[70]
When applying the utilitarian theory to the alleged criminal conduct of a judge, to be effective, a judge must be punished in the same way, if not perhaps even more stringently, than a layperson. This is evident when comparing the societal impact of a crime committed by a judge, versus the impact of the same crime committed by a layperson. While the criminal complaint itself doesn’t change, the level of impact upon society assuredly does change. The level of esteem afforded a judge (or any similarly situated public official, such as a Congressional Representative, lawyer, police officer, or doctor) results in a higher perceived societal impact, ultimately resulting in public distrust of the judiciary. Thereby making the need for punishment more acute to ensure public trust has been sufficiently assuaged.
However, the issue at hand is not how severely a judge should be punished for criminal behavior, but rather the importance of ensuring that complaints which include criminal allegations are not closed, without the same due diligence that is normally invested into investigating criminal complaints of the general society. The issue, more plainly put, is ensuring that the law is applied equally to all men, including judges.
Founding Father, James Madison, expressed this sentiment when he said the law should not grant some people “peculiar exemptions.”[71] Later, President Andrew Jackson voiced a similar opinion in his December 1865 State of the Union Address, where he said, “there is no room for favored classes or monopolies,” for “the principle of our Government is that of equal laws,” which “accord, equal and exact justice to all men, special privileges to none.” [72] Indeed, Section One of the Equal Protection Clause, which, although written to address racial discrimination within the legal system, was none the less hailed as “the great Democratic principle of equality before the law” by at least one newspaper of the time.[73] Representative Thaddeus Stevens of Pennsylvania commented that,
[T]he same laws must and shall apply to every mortal . . . the same law which punishes one man shall punish any other for the same offense . . . the law which gives a verdict to one man shall render the same verdict to another . . . .[74]
In addition to the utility of enforcing the law impartially, it is also important to consider the relationship between the alleged victim (or, more accurately, the public as a victim of the judge’s actions) and the judge at issue. Author George Fletcher believes that criminal offenses create an imbalance between the offender and the victim.[75] He wrote, “[c]riminal conduct establishes the supremacy of the criminal over the victim.”[76] This cannot be truer, than when the alleged offender is a member of the esteemed judiciary. Particularly when the type and amount of power society vests in a judge is considered. As a layperson, to find oneself the victim of an alleged crime by a judge must surely feel like falling into an abyss; for whom will ever defy or seek to punish the person who himself doles out the punishment? If it is true that “[t]he single overriding rationale behind our system of judicial discipline is the preservation of public confidence in the integrity and independence of the judiciary,”[77] then it stands to reason that a judge accused of criminal conduct must be held to the same legal standard as any layperson. When allegations of criminal conduct are asserted, a judge must not be immune from criminal investigation and where appropriate, prosecution.
Consider, In the Matter of J. Kenneth Royal, the State Bar of Georgia brought disciplinary actions against attorney Royal for mishandling trust accounts and client funds. [78] Royal drafted a will on behalf of a client who then named him executor of her estate upon her demise.[79] At that time, Royal failed to advise the client of the conflict of interest regarding drafting a will for which he was both the drafter and the executor.[80] Upon the client’s death, Royal was named executor of the will and he appointed himself as the attorney for the estate.[81] As executor of the estate, Royal comingled funds, failed to keep accurate records, refused to provide financial statements to the client’s heirs, and continued to pay himself as both executor of the will and attorney for the estate.[82] Upon review of the complaint, the State Bar of Georgia recommended Royal be disbarred for his actions. The Review Panel, after consideration of the record, agreed with the State Bar and Royal was disbarred. [83] However, no criminal charges appear to have been filed against Royal for any of his actions. Although the attorney was disbarred, was justice sufficiently served where criminal charges did not result from the allegations of criminal conduct?
It is important to note the possibility that investigations of criminal complaints are being funneled through to the local District Attorney’s office. However, according to Rule 20(a), the proceedings of the Commission; including the actual filing of the complaint, investigation(s), conferences between the judge and the Commission, and all other papers and documents are kept confidential.[84] Upon resolution of the complaint – whether the charges are dismissed or a sanction is recommended – the Commission posts the final disposition of the complaint for public view on its’ website. [85] The confidentiality of the proceedings puts alleged victims and subsequently the public in the position of having no closure to the criminal component of their complaint. Even assuming the criminal component is forwarded to the appropriate District Attorney’s office, the lack of transparency, gives the impression that no action has been taken on the criminal complaint. Again, the victim is left without closure.
III. Bridging the Gap
There are two separate entities charged with addressing societal misconduct; The Judicial Qualifications Commission addresses breaches of judicial ethics and the criminal justice system addresses breaches of criminal law. The issues as mentioned above, occur when information sharing between the two systems is one sided or so opaque as to appear one sided. The Commission is notified when a judge is indicted on a felony criminal charge(s).[86] However, nothing requires reciprocity on the part of the Commission. There does not appear to be a mechanism by which the District Attorney’s office is alerted to allegations of criminal wrongdoing, when the allegations are made as part of an ethical complaint to the Commission. And, if such a mechanism exits, it is clouded by the confidentiality that is required in Rule 20(a) of the Rules.[87] In many instances, it appears that criminal allegations are disposed of alongside whatever (if any) sanctions are imposed on the judge for the ethical violation(s). This inference is validly drawn based on the lack of evidence of any court proceedings beyond the ethical complaint.
To maintain both the appearance of fairness and judicial propriety, the public (and the complainant) are entitled to an investigation into allegations of criminal wrongdoing and notice that an investigation has or is occurring. It is not enough to simply sanction or remove a judge from office, any more than it is acceptable to ignore a layperson that steals or breaks into a neighbor’s house. While the argument can be made that sanctions up to and including disbarment remove the “bad seed” from the bench, it may not be enough to restore the confidence of the public. In a society where criminalization is rampant, the public needs to see that those charged with enforcing the laws are also responsible to and subject to those same laws. As Mr. Goti noted, “punishment restores the balance between the victim and the perpetrator.”[88]
Fixing the lack of reciprocity can be relatively simple. A legislature statute requiring:
“Any complaint received by the Judicial Qualifications Commission, which includes allegation(s) of criminal wrongdoing or conduct on the part of an active member of the Georgia judiciary, shall be forwarded to the Attorney General’s office for investigation and any further actions as deemed appropriate by said office. The investigation by the Attorney General’s office will be conducted in conjunction with any complaint of ethical misconduct by the accused judge. Said investigation will not impugn upon, nor disrupt the Commission from completing its own investigation in the normal course. Any findings derived from the Attorney General’s investigation will bear no weight upon the investigation of the Commission, except as noted in Rule 15(a) of the Rules of the Judicial Qualifications Commission. Additionally, any fines, penalties, or imprisonment deriving from the criminal allegations will be in addition to any sanctions or disciplinary actions recommended by the Commission and accepted by the Georgia Supreme Court.”
The Commission can also choose to adopt a rule, stating (similar to above) that:
The Commission will, upon receipt of a complaint alleging criminal conduct or wrongdoing, on the part of an active member of the Georgia judiciary, notify the Attorney General of said complaint, forwarding all information surrounding said complaint to the Attorney General’s office for further investigation and prosecution as deemed appropriate by the Attorney General.
The Rule should also expressly state that the forwarding of a complaint of alleged criminal conduct does not impugn upon the Commission’s ability to act in the manner authorized by the Georgia Constitution, and all criminal charges brought by the Attorney General, will be in addition to any charges brought by the Commission for violation of the Code of Judicial Conduct. Any and all criminal sanctions or disciplinary actions instituted by the Attorney General would be in addition any sanctions or disciplinary actions deemed appropriate by the Commission. Neither institute shall hold sway nor dominion over the other, nor shall either institute intentionally withhold information or interfere with the investigation of the other.
In the alternative, the Commission can adopt a rule nullifying the complete confidentiality of the complaint process. The Rule should deal with the issue of transparency by requiring the Commission to notify the complainant of the disposition of the ethical complaint, and provide the name of the District Attorney’s office to whom the criminal complaint has been forwarded for additional investigation. If the investigation yields fruitful substance, and criminal charges are filed, the complainant/victim, should be notified of the progress of the investigation and plans for trial. Alternately, the complainant should be advised when the District Attorney chooses not to proceed with criminal charges. By improving transparency in the process, the victim is able to develop a sense of redemption and closure to the alleged violation.
To avoid both a separation of powers issue and frivolous complaints, it is important that criminal allegations are forwarded by the Commission either to the United States District Attorney or a special prosecutor from outside of the local jurisdiction to investigate and, when necessary, adjudicate the criminal complaint. A special prosecutor or a United States District Attorney provides an unbiased third party to the adjudication process, thereby ensuring the continuation of an independent judiciary free from fear of frivolous prosecution.
IV. Conclusion
Judges are not above the law. They are, in fact, an arbiter of facts and law for the resolution of disputes.[89] They are highly visible symbols of government under the law, and they are held - and expected to hold themselves - to a higher standard of ethical bearing and professionalism than a layperson.[90] The public looks to judges to be symbols of equality and justice.
It is because judges know the law, and are expected to administer the law equally and fairly, that it is even more heinous when a judge is accused of criminal conduct. Worse than a judge committing a crime, is the feeling that judges won’t be held accountable for those alleged crimes. For some, the utilitarian outcome of removing a judge from office is enough to satisfy the societal feeling of being wronged and to deter whomever takes his seat from acting in the same manner. But for others, those that believe a judge should truly be held to a higher standard of conduct, and as such, should face the same punishment as the average person, it is not enough to gloss over criminal allegations with the equivalent of a slap on the wrist. For those people, justice is not served until and unless the judge has “faced the firing squad” of the prosecutor’s office in the same manner any other person charged with a criminal offense would be. For those persons, there needs to be some protection in place ensuring that criminal allegations won’t get swept under the rug and dismissed or resolved along with the resolution of an ethical complaint. For while it is true that not every citizen has an ethical standard they must live by, it is also true that every citizen does in fact have a set of laws that govern all who fall under its sovereignty. After all, we are a nation of laws and not one of man.
[1] Georgia Code of Judicial Conduct, Preamble (hereinafter Code)(2014).
[2]In re Sloop, 946 So. 2d 1046, 1049 (Fla. 2006).
[3] Raymond McKoski, Judicial Discipline and the Appearance of Impropriety: What the Public Sees is What the Judge Gets. 94 Minn. L. Rev. 1914, 1963 (June 2010).
[4]Id.
[5] David Cleveland & Jason Masimore, The Ermine and Woolsack: Disciplinary Proceedings Involving Judges, Attorney-Magistrates, and Other Judicial Figures, 14 Geo. J. Legal Ethics 1037 (2001).
[6] 18 USCS §242 (1996).
[7]In re Brooks, 264 Ga. 583, 584 (1994). (“The primary purpose of a disciplinary action is to protect the public from attorneys who are not qualified to practice law due to incompetence or unprofessional conduct.”).
[8]Cone v. Cone, 68 So.2d. 886, 888 (Fla. 1953).
[9]Brian R. Pitney, Note, Unlocking the Chamber Doors: Limiting Confidentiality in Proceedings Before the Virginia Judicial Inquiry and Review Commission, 26 U. Rich. L. Rev. 367, 368 (1992) (noting judicial conduct organizations serve a three-fold purpose: enforcing the Code of Judicial Conduct; maintaining public confidence in the judiciary; and protecting judges from frivolous and unwarranted allegations).
[10]See In re Peterman, JQC Docket No. 2013-38, pg. 1, ¶ 2 (Ga. 2013). (On March 8, 2013 the judge entered into a Consent Order of suspension, pending the resolution of the criminal charges which led to her arrest on March 4, 2013.)
[11] Rule 15(a). See also In re Peterman, JQC Docket No. 2013-38.
[12]In re Peterman, JQC Docket No. 2013-38. (The suspension will last either until the criminal case has been resolved, or 30 days if the court trying the criminal charge has not moved forward with the criminal prosecution, unless the delay is in response to a continuance requested by the judge or his counsel.)
[13]See, e.g., In re Fowler, 696 S.E.2d 644 (Ga. 2010) (charging judge with misappropriating funds, was disbarred for Canon violations but no apparent criminal indictment or accusation ensued.) available athttp://www.gajqc.com/news.cfm.; In re Porteous, Order and Public Remand (5th Circuit Judicial Council September 10. 2008) (judge allegedly charged with several counts of perjury and financial fraud, the judge was publicly reprimanded and suspended from actively accepting cases for 2 years, however, no criminal indictments appear to have been filed against the judge) available athttp://www.ca5.uscourts.gov/docs/default-source/judicial-council-orders/judicial-council-order-and-public-reprimand-07-05-351-0085.pdf (last viewed 11/10/14).
[14]McKoski, supra note 4 (“[T]he judicial branch survives only because the public trusts the system. Judges symbolize the justice system and its essential components… [t]hus confidence in the administration of justice is synonymous with confidence in judges. This all important confidence is undermined by any conduct which diminishes society’s belief in, or respect for, the …uprightness, dignity, or moral character of judges.”).
[15] The Judicial Qualifications Comm’n, State of Ga., http://www.gajqc.com/default.cfm (last visited Oct. 4, 2014).
[16]Id.
[17]Id.
[18] The Judicial Qualifications Comm’n, State of Ga., Frequently Asked Questions, http://www.gajqc.com/faq.cfm (last visited Oct. 4, 2014).
[19] 8 Fed. Proc. §20:139 (West 2014).
[20] The Judicial Qualifications Comm’n, State of Ga., Functions and Procedures, http://www.gajqc.com/functions_procedures.cfm (last visited Oct. 4, 2014).
[21] Id.
[22] Id.
[23] Supra note 19.
[24] Federal Judicial Conduct, Chief Judge Review available at https://www.ajs.org/judicial-ethics/judicial-conduct-commissions/federal-judicial-conduct/ (10/3/14).
[25] The Judicial Conduct and Disability Act defines judicial misconduct as conduct prejudicial to the effective and expeditious administration of the business of the courts. 28 U.S.C.S. §351(a). Cognizable misconduct includes conduct occurring outside the performance of official duties which might have a prejudicial effect on the administration of the business of the courts, including a substantial and widespread lowering of public confidence in the courts among reasonable people. In re Complaint of Judicial Misconduct, 575 F.3d 279; 2009 U.S. App. LEXIS 17625.
[26] Code of Judicial Conduct (hereinafter “the Code”). Rules of the Judicial Qualifications Commission (“Rules”).Rule 4(b). available at http://www.gajqc.com/rules.cfm.pdf.
[27] To establish merit, the complaint must show judicial misconduct on its face. The Commission defines judicial misconduct as “any violation of the Code of Judicial Conduct, which may include, but is not limited to: failure to perform duties impartially and diligently, failure to dispose promptly of the business of the court, conflict of interest, and other conduct which reflects adversely on the integrity of the judiciary.” supra note 20.
[28] The Code, supra note 29 at 7(e). available at http://www.gajqc.com/rules.cfm.pdf.
[29] Id.
[30] Id.
[31] Id.
[32] How the Commission proceeds with disciplinary measures depends greatly on how the judge responds to the complaint. Expressions of regret and remorse may generate a more lenient disciplinary response from the Commission. See In re Charges of Judicial Misconduct (Calabresi), 404 F.3d 688 (Judicial Council of the 2nd Circuit 2005); In re Complaint of Judicial Misconduct (Kozinski) (Judicial Council U.S. Court of Appeals for the 3rd Circuit July 2009) (www.ca3.uscourts.gov/opinarch/089050p.pdf); In the Matter of a Complaint filed by Tejeda (U.S. 11th Judicial Circuit Judicial Council October 18, 1993), while a response of disdain or excuse may generate a harsher response. (The disciplinary action is also ruled by the nature and repetition of the offense). Am. Judicature Soc’y, Federal Judicial Conduct: Recent Cases, AJS.ORG, https://www.ajs.org/judicial-ethics/judicial-conduct-commissions/federal-judicial-conduct/ (last visited Feb. 20, 2015).
[33] According to the Rules, informal sanctions are defined as offenses which are “insufficient to warrant the institution of formal proceedings but nevertheless warrants sanctions,” the Commission has the option to: (i)admonish and/or reprimand a judge; (ii) direct professional counseling and assistance for a judge; (iii) impose conditions on a judge's future conduct or instruct a judge to make specific changes in particular matters of conduct; or (iv) adjust the complaint by any other appropriate means consistent with these rules. The Code, supra note 26, Rule 4(f).
[34] Rule 4(b). The Notice of Formal Proceedings alerts the judge that the Commission has found clear and convincing evidence that the complaint may be meritorious and that the Commission will begin formal proceedings in the matter.
[35] Id.
[36] The Rules, supra at note 15.
[37] Id. at 4(c).
[38] Id. at 4(d).
[39] Id.
[40] Id. at 4(f).
[41] Rules, Supra note 28, at Rule 14(a) provides “disciplinary actions that include: that a judge be; (1) removed from office; (2) removed from office and prohibited from thereafter holding judicial office; (3) suspended from office for a specified period of time together with such other conditions and restrictions as the Commission may consider proper; (4) censured; (5) reprimanded; (6) retired; or (7) subjected to such other discipline as may seem to the Commission appropriate.” .
[42] The Commission can refer the criminal allegations to the prosecutor’s office, however, there is nothing in the rules which expressly requires the Commission to forward criminal allegations included in the ethical complaint.
[43] Rules, Supra note 28, at Rule 4(e).
[44] Rules, Supra note 28, at Rule 4(f).
[45] Rules, Supra note 28, at Rule 20(a).
[46] Arthur D. Hellman. When Judges are Accused: An Internal Look at the New Federal Judicial Misconduct Rules. 22 NOTRE DAME J.L. ETHICS & PUB. POL’Y. 325, (2008). (If allegations of misconduct are not dealt with in appropriate fashion, the fault can easily be imputed to the judiciary as a whole.)
[47] Ga. Code Ann. § 16-10-1 (2014). “Violations of oath of office by public officer. Any public officer who willfully and intentionally violates the terms of his oath as prescribed by law shall, upon conviction thereof, be punished by imprisonment for not less than one year nor more than five years.”
[48] Ga. Code Ann. § 16-8-4 (2014). “A person is guilty of theft by conversion when, having lawfully obtained funds or other property…under an agreement or other known legal obligation to make specified application of such funds…he knowingly converts the funds or property to his own use in violation of the agreement or legal obligation.”
[49] In re: An Inquiry Concerning a Judge Oliver Harris Doss, Jr., JQC Docket Nos. 09-25, 09-27, 09-35 (2009), available at http://www.gajqc.com/news.cfm. Recent Commission Actions & Notices, Nov. 9, 2009.
[50] Id.
[51] Id. at 2-20.
[52] Id. at 2-20.
[53] Id.
[54]Georgia Report, http://gareport.com/story/2009/11/09/judge-under-state-investigation-resigns/( last visited Feb. 13, 2015).
[55] http://www.gajqc.com/news.cfm
[56] This is evidenced by a lack of documentation showing criminal charges had been filed, also by a lack of documentation by the Commission to show any ethical sanctions or disciplinary measures were employed.
[57]State Bar of Georgia. available at http://www.gabar.org/MemberSearchDetail.cfm?ID=MjI3MDUw. (last retrieved December 19, 2014).
[58] Id.
[59] GA. CODE OF JUDICIAL CONDUCT, Canon 1 (2014). Rule 12.9.5, Model Codes, Restatements, Standards and Sentencing Guidelines.
[60] GA. CODE OF JUDICIAL CONDUCT, Canon 2 (2104). Rule 12.9.5
[61] Id. at 587,588.
[62] Supra, note 2.
[63] Supra, note 19.
[64]Utilitarianism Definition, DICTIONARY.COM, http://dictionary.reference.com/browse/utilitarianism (last viewed Nov. 9, 2014).
[65] JOSHUA DRESSLER, CASES AND MATERIALS ON CRIMINAL LAW 32-26 (THOMAS REUTERS 5th ed. 2009).
[66]Id. at 51. (Social Harm is a harm suffered as the result of a crime that is experienced not only by the immediate victim but also by society.)
[67]Id. at 35. (Noting that knowledge that punishment will follow a crime deters people from committing crimes; thus reducing future violations. General deterrence is very much a matter of affording rational self-interested people good reasons not to commit crime. )
[68] Id. at 35. (Noting the actual imposition of punishment creates fear in the offender that if he repeats his act, he will be punished again. “[H]aving a harm befall oneself is almost always a sharper lesson than seeing the same harm occur to others.”)
[69] Id. at 36. (Punishment may help to reform a criminal so that his desire to commit crimes will be less and so that he will be a happier and more useful individual.
[70] Jaime Malamud Goti, Equality, Punishment, and Self-Respect, 5 Buff. Crim. L. REV. Vol. 5, 497, 500 (2002).
[71] Melissa L. Saunders, Equal Protection, Class Legislation, and Color Blindness, 96 Mich. L. Rev. 245, 256 (1997) (citing James Madison, MEMORIAL AND REMONSTRANCE AGAINST RELIGIOUS ASSESSMENTS (1785)), reprinted in THE SUPREME COURT ON CHURCH AND STATE 20 (Robert S. Alley ed. 1988).
[72] Id. at 273, (citing A COMPLIATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS: 1789-1897 590 (James D. Richardson ed., 1896).
[73] Saunders, supra note 59, at 288, (citing The Constitutional Amendment, CINCINNATI COM., (June 21, 1866 at 4)).
[74] Saunders, supra note 59, at 288, (citing Thaddeus Stevens, Speech at Lancaster, Pa (Sept. 27, 1866)).
[75] George P. Fletcher, Basic Concepts of Criminal Law 37 (1998).
[76] Id.
[77] In re Seaman, 627 A.2d 106, 121 (N.J. 1993).
[78] In the Matter of J. Kenneth Royal, 262 Ga.717 (1993).
[79] Id.
[80] Id.
[81] Id.
[82] Id.
[83] Id.
[84] Ga. Judicial Qualifications Comm’n, Rules of the Judicial Qualifications Comm’n, Rule 20(a) (2004).
[85] Ga. Judicial Qualifications Comm’n, Recent Commission Actions and Notices, http://www.gajqc.com/news.cfm (last updated Nov. 25, 2014) (Recent Commission actions can be found on the Judicial Qualification’s Commission website. Publications do not include any finding of fact or investigative notes. The website only publicizes the final disposition and acceptance of the recommended sanction by the judge. If the judge is asked to resign, his/her letter of resignation is posted along with the resolution).
[86] Ga. Judicial Qualifications Comm’n, Rules of the Judicial Qualifications Comm’n, Rule 15 (2004).
[87] Id. at Rule 20(a) (2004).
[88]Jamie Malamud Goti, Equality, Punishment, and Self-Respect, 5 Buff. Crim. L. Rev. 497, 497 (2002).
[89] Code, supra note 2, Preamble ¶2.
[90] Id.
