A sitting State Court Judge and former Magistrate Court judge urges the reconsideration of Opinion 230 wherein the Commission opined that there was “no express ethical prohibition against dual service as a part-time judge and a member of the General Assembly.” Upon further consideration, Opinion 230, issued July 24, 1998, is expressly WITHDRAWN AND OVERRULED and the following opinion is issued by the Commission.
The question presented is whether an individual may simultaneously serve as a part-time judge and a member of the General Assembly under the present provisions of the Georgia Constitution and the Code of Judicial Conduct?
I. Service as a Part-Time Judge and a Member of the General Assembly Violates the Separation of Powers Clause of the Georgia Constitution.
The Constitution of Georgia provides:
The legislative, judicial and executive powers shall forever remain separate and distinct; and no person discharging the duties of one shall at the same time exercise the functions of either of the others except as herein provided. Art. I, sec. II, par. 3
No person holding any civil appointment or office having any emolument annexed thereto under the United States, this state, or any other state shall have a seat in either house. Art. III, sec. II, par. 4(B).
The Official Code of Georgia Section 16-10-9 states:
It shall be unlawful for:
(1) Members of the General Assembly to accept or hold office or employment in the executive branch of the state government or any agency thereof or in the judicial branch of the state government;
(2) Judges of courts of record or their clerks and assistants to accept or hold office or employment in the executive branch of the state government or any agency thereof or in the legislative branch of the state government; or
(3) Officers or employees of the executive branch of state government to accept or hold office or employment in the legislative or judicial branch of the state government.
These provisions would preclude any simultaneous service as a legislator by any judge of any court of the state.
II. Service as a Part-Time Judge and a Member of the General Assembly Violates the Provisions of the Code of Judicial Conduct.
An analysis of this issue must start from the premise that the Code prohibits judges or judicial candidates from participating in “political activity” as that term is commonly understood. Some judges in this state are permitted to declare a political party, pay a qualifying fee to a political organization, and run for office in a partisan election. Nonetheless, the Code in every other material way, severely limits or restricts the ability of judges to participate in political activity by admonishing judges inter alia to:
“shall not make statements or promises that commit the candidate with respect to issues likely to come before the court that are inconsistent with the impartial performance of the adjudicative duties of judicial office”
Indeed Canon 4 states “Judges shall refrain from political activity inappropriate to their judicial office.” It is fundamentally inconsistent with these various and sundry prohibitions against political activity to permit a judge to simultaneously run for election and serve as a member of the General Assembly. Under the Code, a judge may not evade these prohibitions by simply wearing his General Assembly “hat.” While the Code does not expressly prohibit simultaneous service as a judge and member of the General Assembly, such prohibition is at least implicit. The Code does not expressly prevent a judge’s election to the General Assembly but, it does expressly prohibit him from carrying out even the most rudimentary duties of that office.
A. Canon 1
Rule 1.1 provides: “Judges shall respect and comply with the law.” Rule 1.2(A) provides: “Judges shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”
The commentary further states that “the test for the appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.” The issue here is impartiality. Members of the General Assembly are elected by their constituents not because they promise to be impartial, but because they promise to take a stand on issues coming before them. Service as a member of the General Assembly could create the impression, in reasonable minds, of partiality when the judge is placed in the position of serving as judge while at the same time being an advocate for the positions and interests of his constituency and or political party on subjects such as crime, punishment, and civil justice reform (which are frequent subjects before the General Assembly in virtually every session).
B. Canon 2
Rule 2.1 provides:
The judicial duties of judges take precedence over all their other activities.
In performance of these duties, the following standards apply:
(A) Judges shall be faithful to the law and maintain professional competence in it. Judges shall not be swayed by partisan interest, public clamor or fear of criticism.
The Code recognizes that Judges in Georgia are often chosen by public election and can not, therefore, totally remove themselves from partisan events. The Code, however, is very clear on the limitations on a judicial candidate’s participation in such events. It is hard to conceive how a candidate for, or member of, the General Assembly would be able to abide by the emphatic command of Canon 2 that judges shall not be swayed by partisan interest, public clamor, or fear of criticism. As the Preamble to the Code states: “When the text uses “shall” or “shall not”, it is intended to impose binding obligations the violation of which can result in disciplinary action.”
C. Canon 3
Rule 3.1(C) provides:
Judges may engage in extra-judicial activities, provided that doing so will not interfere with proper performance of judicial duties or cast doubt on their capacity to impartially decide any issue.
Under Rule 3.2, “Judges may appear at public hearings before an executive or legislative body or official on matters concerning the law, the legal system, and the administration of justice, and they may otherwise consult with an executive or legislative body or official, but only on matters concerning the administration of justice.”
The Code provides very limited circumstances under which a judge may consult with or participate in the other branches of government. The Canon does not contemplate that a judge may be a full-time member of the legislative or executive branch of government and speak, vote, and otherwise fulfill their constitutional duties to such other branch of government. Such conduct by a Judge is prohibited by Canon 3.
Rule 3.1(A) provides:
Judges shall not engage in extra-judicial activities that detract from the dignity of their office or interfere with the performance of their judicial duties.
Under Rule 3.4, “A judge shall not accept appointment to a governmental committee, commission, or other position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, or the administration of justice, if acceptance of such appointment might reasonably cast doubt upon the judge’s impartiality or demean the judge’s office.”
The commentary under Rule 3.4 notes:
“Valuable services have been rendered in the past to the states and the nation by judges appointed by the executive to undertake important extra-judicial assignments. The appropriateness of conferring these assignments on judges must be reassessed, however, in light of the demands on judicial manpower created by today’s crowded dockets and the need to protect the courts from involvement in extra-judicial matters that may prove to be controversial. Judges should not be expected or permitted to accept governmental appointments that could interfere with the effectiveness and the independence of the judiciary.”
Like Canon 3, this Canon contemplates very limited circumstances in which a judge may consult with, or participate in, the executive and legislative branches of government. Canon 3 does not contemplate that a judge will be a full-time member of another branch of government and speak, vote, and otherwise fulfill their constitutional duties to such other branch of government while simultaneously serving as a judge. Such conduct is prohibited by Canon 3.
D. Canon 4
Canon 4 provides:
Judges shall refrain from political activity inappropriate to their judicial office.
The primary mandate of Canon 4 is addressed above. The Cannon further provides “A judge or candidate for public election to judicial office shall not act as a leader or hold any office in a political organization.”
By being an elected official, the question is raised whether you are a “leader in a political organization.” See Opinions 108 (can not serve as a delegate to political convention), 129 (can not serve on executive committee of county level political party). While neither of these Opinions address whether mere membership in the General Assembly would, as a matter of course, cause an individual to be a “leader in a political organization”, such membership could in reasonable minds give the appearance of a leadership position.
Therefore, simultaneous service as both a judge and a member of either the legislative or executive branch of state government would be a direct violation of the separation of powers clause of the Georgia Constitution. Judges must expect to be the subject of constant public scrutiny. Judges must therefore accept restrictions on their conduct that might be viewed as burdensome by the ordinary citizen and they should do so freely and willingly. With this limitation in mind, it is a violation of the Code for a part-time judge to also serve as a member of the General Assembly of Georgia or in the executive branch.
[Pertinent Code of Judicial Conduct provisions: Canons 1, 2, 3, and 4.]