Atlanta January 7, 2004
The Honorable Supreme Court met pursuant to adjournment.
The following order was passed.
It is ordered that the Preamble to the Georgia Code of Judicial Conduct be amended to read as follows:
Our legal system is based on the principle that an independent, fair and competent judiciary will interpret and apply the laws that govern us. The role of the judiciary is central to American concepts of justice and the rule of law. Intrinsic to all sections of this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system.
Every judge should strive to maintain the dignity appropriate to the judicial office. The judge is an arbiter of facts and law for the resolution of disputes and a highly visible symbol of government under the rule of law. As a result, judges should be held to a higher standard, and should aspire to conduct themselves with the dignity accorded their esteemed position.
The Code of Judicial Conduct is intended to establish standards for ethical conduct of judges. It consists of broad statements called Canons, specific rules set forth in Sections under each Canon, a Terminology Section, an Application Section and Commentary. The text of the Canons and the Sections, including the Terminology and Application Sections, is authoritative. The Commentary, by explanation and example, provides guidance with respect to the purpose and meaning of the Canons and Sections. The Commentary is not intended as a statement of additional rules. When the text uses “shall” or “shall not,” it is intended to impose binding obligations the violation of which can result in disciplinary action. When “should” or “should not” is used, the text is intended as advisory and as a statement of what is or is not appropriate conduct, but not as a binding rule under which a judge may be disciplined. When “may” is used, it denotes permissible discretion or, depending on the context, it refers to action that is not covered by specific proscriptions.
The Canons and Sections are rules of reason. They should be applied consistent with constitutional requirements, statutes, other court rules and decisional law, as well as in the context of all relevant circumstances. The Code is to be construed so as not to impinge on the essential independence of judges in making judicial decisions, or on judges’ First Amendment rights of freedom of speech and association.
The Code is designed to provide guidance to judges and candidates for judicial office and to provide a structure for regulating conduct through disciplinary agencies. It is not designed for nor intended as a basis for civil liability or criminal prosecution. Furthermore, the purpose of the Code would be subverted if the Code were invoked by lawyers for mere tactical advantage in a proceeding.
The text of the Canons and Sections is intended to govern conduct of judges and to be binding upon them. It is not intended, however, that every transgression will result in disciplinary action. Whether disciplinary action is appropriate, and the degree of discipline to be imposed, should be determined through a reasonable and reasoned application of the text and should depend on such factors as the seriousness of the transgression, whether there is a pattern of improper activity, and the effect of the improper activity on others or on the judicial system.
The Code of Judicial Conduct is not intended as an exhaustive guide for the conduct of judges. They should also be governed in their judicial and personal conduct by general ethical standards. The mandatory provisions of the Canons and Sections describe the basic minimal ethical requirements of judicial conduct. Judges and candidates should strive to achieve the highest ethical standards, even if not required by this Code. As an example, a judge or candidate is permitted under Canon 7, Section B, to solicit campaign funds directly from potential donors. The Commentary, however, makes clear that the judge or candidate who wishes to exceed the minimal ethical requirements would choose to set up a campaign committee to raise and solicit contributions. The Code is intended to state only basic standards which should govern the conduct of all judges and to provide guidance to assist judges in establishing and maintaining high standards of judicial and personal conduct.
It is further ordered that Canon 7 (A) and (B) and accompanying Commentary in the Georgia Code of Judicial Conduct be amended so that, as amended, Canon 7 shall read as follows:
Judges Shall Refrain from Political Activity Inappropriate to Their Judicial Office.
A. Political Conduct in General.
(1) A judge or a candidate* for public election* to judicial office shall not:
(a) act or hold himself or herself out as a leader or hold any office in a political organization*;
(b) make speeches for a political organization or candidate or publicly endorse a candidate for public office;
A candidate does not publicly endorse another candidate for public office by having his name on the same ticket.
(c) solicit funds for or pay an assessment or make a contribution to a political organization, or purchase tickets for political party dinners, or other functions, except as authorized in subsection A(2).
(2) Judges holding an office filled by public election* between competing candidates*, or candidates for such office, may attend political gatherings and speak to such gatherings on their own behalf when they are candidates for election or re-election.
B. Campaign Conduct.
(1) Candidates*, including an incumbent judge, for any judicial office that is filled by public election* between competing candidates:
(a) shall prohibit official or employees subject to their direction or control from doing for them what they are prohibited from doing under this Canon and shall not allow any other person to do for them what they are prohibited from doing under this Canon;
(b) shall not make statements that commit the candidate with respect to issues likely to come before the court;
This Canon does not prohibit a judge or candidate from publicly stating his or her personal views on disputed issues, see Republican Party v. White, 536 U.S. 765 (2002). To ensure that voters understand a judge’s duty to uphold the constitution and laws of Georgia where the law differs from his or her personal belief, however, judges and candidates are encouraged to emphasize in any public statement their duty to uphold the law regardless of their personal views.
(c) shall not use or participate in the publication of a false statement of fact concerning themselves or their candidacies, or concerning any opposing candidate or candidacy, with knowledge of the statement’s falsity or with reckless disregard for the statement’s truth or falsity;
The determination of whether a candidate knows of falsity or recklessly disregards the truth or falsity of his or her public communication is an objective one, from the viewpoint of a “reasonable attorney,” using the standard of “objective malice.” See In re Chmura, 608 N.W.2d 31 (Mich. 2000).
(d) shall be responsible for the content of any statement or advertisement published or communicated in any medium by a campaign committee if the candidate knew of or recklessly disregarded the content of said statement or advertisement prior to its release;
(e) and except where a statement or advertisement is published or communicated by a third party, shall be responsible for reviewing and approving the content of his or her statements and advertisements, and those of his or her campaign committee. Failure to do so will not be a defense to a complaint for violation of this Canon.
(2) Candidates*, including an incumbent judge, for a judicial office that is filled by public election* between competing candidates, may personally solicit campaign contributions and publicly stated support. Candidates, including incumbent judges, should not use or permit the use of campaign contributions for the private benefit of themselves or members of their families.
Although judges and judicial candidates are free to personally solicit campaign contributions and publicly stated support, see Weaver v. Bonner, 309 F.3d 1312 (11th Cir. 2002), they are encouraged to establish campaign committees of responsible persons to secure and manage the expenditure of funds for their campaigns and to obtain public statements of support of their candidacies. The use of campaign committees is encouraged because they may better maintain campaign decorum and reduce campaign activity that may cause requests for recusal or the appearance of partisanship with respect to issues or the parties which require recusal.
(a) This Canon generally applies to all incumbent judges and judicial Candidates*. A successful candidate, whether or not an incumbent, is subject to judicial discipline by the Judicial Qualifications Commission for his or her campaign conduct.
(b) A lawyer who is a candidate* for judicial office shall comply with all provisions of the Code of Judicial Conduct applicable to candidates* for judicial office. An unsuccessful lawyer candidate* is subject to discipline for campaign conduct by the State Bar of Georgia pursuant to applicable standards of the State Bar of Georgia, and the Judicial Qualifications Commission shall immediately report any such alleged conduct to the office of the General Counsel of the State Bar of Georgia for such action as may be appropriate under applicable bar rules.
(c) An unsuccessful nonlawyer candidate* is subject to discipline for campaign misconduct by the Judicial Qualifications Commission, and in addition to any other sanctions authorized by the Rules of the Judicial Qualifications Commission, the Commission, after full hearing, is authorized to recommend that such individual be barred from seeking any elective or appointive judicial office in this State for a period not to exceed 10 years.
It is further ordered that Rule 27 (b) of the Rules of the Judicial Qualifications Commission be deleted, that Rule 27 (c) be amended and re-designated Rule 27 (b), and that Rule 27 (d) and (e) be re-designated Rule 27 (c) and (d), respectively, so that, as amended, Rule 27 shall read as follows:
Rule 27. Special Committee on Judicial Election Campaign Intervention
(a) In every year in which a general election is held in this State and at such other times as the Commission may deem appropriate, the Chair shall name three (3) members to a Special Committee on Judicial Election Campaign Intervention (“Special Committee”) whose responsibility shall be to deal expeditiously with allegations of ethical misconduct in campaigns for judicial office. The membership of such committee shall consist of the senior member of each of the three (3) categories of Commission membership if available, and if not, the next most senior member from that category. The Commission Director shall also serve as an ex-officio member. The objective of such committee shall be to alleviate unethical and unfair campaign practices in judicial elections, and to that end, the Special Committee shall have the following authority:
(b) Upon receipt of a complaint or otherwise receiving information facially indicating a violation by a judicial candidate of any provision of Canon 7 during the course of a campaign for judicial office, the Director shall immediately forward a copy of the same by facsimile and U.S. Mail to the Special Committee members and said Committee shall:
(1) seek, from the complainant and/or subject of the complaint, such further information on the allegation of the complaint as it deems necessary;
(2) conduct such additional investigation as the Committee may deem necessary;
(3) determine whether the allegations of the complaint warrant speedy intervention; if no intervention is needed, dismiss the complaint and so notify the complaining party;
(4) if further investigation is deemed necessary, request confidential written responses from the subject of the complaint and the complaining party on the following schedule:
(A) within 3 business days of receiving such a request from the Committee, a written response from the subject of the complaint;
(B) the Committee will share the subject’s written response with the complaining party on a confidential basis, who shall be requested to provide a written response within 3 business days; and
(C) the Committee will share the complaining party’s response with the subject of the complaint, who then shall be requested to submit a written rebuttal within 1 business day.
In the event a complaint is filed within two (2) weeks before a judicial election, or if circumstances otherwise dictate, the Committee may accelerate the above schedule or eliminate the need for steps (B) and (C) as the Committee deems necessary. Each of the above papers must be served on the Committee only, and will be kept confidential except as described above. The identity of the complaining party will remain confidential until the Committee’s decision is communicated to the parties unless that confidentiality is waived by the complaining party. Any party breaching the confidentiality of the above process shall be subject to a Public Statement as set forth in this Rule.
(5) if it is determined after the papers from the parties are reviewed that the allegations do warrant intervention, the Committee is authorized:
(A) to immediately release to the complaining party and the person and/or organization complained against, a non-confidential “Public Statement” setting out violations believed to exist; and/or
(B) to refer the matter to the full Commission for such action as may be appropriate under the applicable rules.
(6) if it is determined after the papers from the parties are reviewed that the allegations do not warrant intervention, the Committee shall dismiss the complaint and so notify the complaining party and the subject of the complaint.
(c) All proceedings under this Rule shall be informal and non-adversarial, and the Special Committee shall act on all complaints within ten (10) days of receipt, either in person; by facsimile; by U.S. Mail; or by teleconference.
(d) Except as hereinabove specifically authorized, the proceedings of the Special Committee shall remain confidential as provided in Rule 20, and in no event, shall the Committee have the authority to institute disciplinary action against any candidate for judicial office, which power is specifically reserved to the full Commission under applicable rules.