By Hyde Post
— Two years ago, the Georgia First Amendment Foundation honored the state’s Judicial Qualifications Commission (JQC) for an opinion that strongly discouraged judges from keeping the public out of courtrooms.
The foundation’s board believes the JQC’s opinion significantly, and almost immediately, improved public access to courts in Georgia. The JQC advanced the cause of government transparency to the benefit of all Georgia citizens.
The JQC was created by a constitutional amendment voters approved back in 1972. It operates largely independently, comprised of members appointed by the governor, the state Supreme Court and the Georgia Bar Association. But some legislators were unhappy with how the JQC was run.
As a result, voters this fall will be asked to vote on a new constitutional amendment that would abolish the commission as it is currently constituted and give state legislators the authority to decide how commissioners should be chosen and how the commission should operate.
The Georgia First Amendment Foundation strongly believes adoption of the amendment could result in less transparency about how Georgia’s courts operate and how its judges conduct themselves.
The language voters will read on the ballot is itself less than revealing. It says new rules will “allow the Judicial Qualifications Commission to be open to the public in some manner.” But that manner is not defined and far from certain. In the last session, the Senate version of proposed enabling legislation tightened confidentiality around commission investigations of alleged misconduct by judges and sought to further restrict public access to its hearings.
In recent years, the strong trend at the General Assembly has been toward more government secrecy, not less. (The Legislature has always exempted itself from the Open Meetings Act and Open Records Act.) In the last session alone, the Legislature passed a bill allowing any state agency to conceal documents involving possible business expansions of $25 million in investment or 50 jobs until after a deal is signed. The bill presumes that if, say, the construction of a private prison near your home could create 50 jobs, you are only entitled to learn about it after the fact.
The same General Assembly also approved, at the eleventh hour and without any discussion, an exemption to the Open Records Act that allows state college athletic departments 90 days – rather than the usual three – to respond to public records requests. No other public agency in Georgia is given such latitude to conduct its business in secret.
Neither of those actions suggests a predisposition in the 2017 Legislature to embrace the philosophy of transparency advanced by the JQC when it made clear there are very few valid reasons for closing courtrooms to the public.
There is no question the open court opinion ruffled the feathers of many judges; the Council of State Court Judges argued before the Georgia Supreme Court in a still-pending case that the opinion should be revised.
And there is no question that the commission has gotten more aggressive. The JQC has removed or disciplined judges for a range of bad behavior, including telling a female defendant that favorable rulings would be granted in exchange for sex; theft and fraud involving more than $1 million; pulling a handgun in open court and suggesting a witness could use it to kill her lawyer; tipping off the targets of an undercover FBI investigation; barring female bailiffs from the courtroom; and setting up personal accounts funded by the unauthorized collection of court fees.
The aggressive enforcement has made the commission some enemies. One former judge, who resigned after a commission investigation into allegations of sexual harassment of a female attorney, later ran for the Legislature. He is now one of the principal sponsors of the bill seeking the commission’s abolishment.
There is also no question that the commission today faces significant internal challenges. Its former chair, Lester Tate, resigned after the 2016 legislative session, citing political interference, but also amid charges he abused his authority. More recently, its executive director resigned. And in August, the north Georgia judge who took over as chair, Brenda Weaver, also resigned after she became embroiled in a controversy in which she supported a criminal indictment of a Fannin County newspaper publisher seeking public records concerning her court.
Until the recent turmoil, the commission operated effectively for more than 40 years without any significant effort mounted to abolish it or rewrite its rules.
It is a creature of and operates under the umbrella of the state’s judicial branch, which is where it should stay. To put the Legislature in charge of its future is contrary to the separation of powers principles embedded in Georgia government. The Georgia First Amendment Foundation takes the position that to empower the Legislature to reconstitute the Judicial Qualifications Commission is far more likely to politicize the process of judicial oversight than to advance the cause of an open and accountable government.
Hyde Post is a board member and past president of the Georgia First Amendment Foundation.