In re Judicial Qualifications Comm'n Formal Advisory Op. No. 239

• Decision Date: 30 November 2016
• Docket Number: S15Z1633
• Parties: IN RE JUDICIAL QUALIFICATIONS COMMISSION FORMAL ADVISORY OPINION NO. 239.
• Court: Georgia Supreme Court

300 Ga. 291

794 S.E.2d 631

IN RE JUDICIAL QUALIFICATIONS COMMISSION FORMAL ADVISORY OPINION NO. 239.

S15Z1633

Supreme Court of Georgia.

Decided November 30, 2016

Nathan Alexander Gaffney, Hall Booth Smith, P.C., 191 Peachtree St. NE, Suite 2900, Atlanta, Georgia 30303, for Appellant.

Lesli Nicole Gaither, Thomas MacIver Clyde, Kilpatrick Townsend & Stockton LLP, 1100 Peachtree Street, N.E., Suite 2800, Atlanta, Georgia 30309, Hollie G. Manheimer, Stuckey & Manheimer, 150 East Ponce De Leon Avenue, Suite 230, Decatur, Georgia 30030, Gerald Richard Weber, Jr., Law Offices of Gerald Weber, LLC, P.O. 5391, Atlanta, Georgia 31107, Sarah E. Geraghty, Southern Center for Human Rights, 83 Poplar Street, NW, Atlanta, Georgia 30303, for Neutral Amicus.

Norman S. Fletcher, Lee Barrett Carter, Brinson Askew Berry Seigler Richardson & Davis, LLP, P.O. Box 5007, Rome, Georgia 30161, for Appellee.

Charles S. Wynne, State Court of Hall County Hall County Courthouse, P.O. Box 1435, Gainesville, Georgia 30503-0000, Wayne M. Purdom, State Court of Dekalb County, 556 North McDonough Street, Room 807, DeKalb Courthouse, Decatur, Georgia 30030, for Other Party.

Per Curiam.

On August 28, 2013, the Judicial Qualifications Commission rendered Formal Advisory Opinion No. 239, which concerns Canon 2 (A) of the former Code of Judicial Conduct. In pertinent part, Canon 2 (A) provides that "[j]udges shall respect and comply with the law,"¹ and Opinion No. 239 concerns the obligation of judges to respect and comply with the constitutional guarantee of the right of public access to judicial proceedings. Concerned that Opinion No. 239 reflects some misunderstandings about the scope of that right and the extent to which it is clear and settled in the decisional law, the Council of State Court Judges asked the Commission to reconsider portions of Opinion No. 239. The Commission, however, declined to reconsider, and so, on July 10, 2015, the Council filed a petition with this Court, seeking a review of Opinion No. 239. In its response to the petition, the Commission conceded our authority to review its formal advisory opinions, but the Commission urged us to deny review of Opinion No. 239 on the merits.

On September 8, 2015, we granted the petition for review, and we directed the Commission and the Council to file briefs addressing the extent to which Opinion No. 239 rests upon clear and settled principles of constitutional law. The Commission and the Council filed briefs, but the Commission also filed a motion to dismiss, repudiating its earlier position,² and contending for the first time that this Court is without authority to review the Commission's formal advisory opinions. We heard oral argument on November 2, 2015. Having carefully considered the arguments of the Commission and the Council, we now conclude that this Court has authority to review formal advisory opinions rendered by the Commission, and we conclude as well that Opinion No. 239 reflects some misunderstandings about the extent to which the scope of the right of public access to judicial proceedings is clear and settled in the decisional law. Accordingly, pursuant to JQC Rule 22 (b), we direct the Commission to reconsider Opinion No. 239 consistent with the opinion of this Court.

1. At the outset, we must consider our authority to review formal advisory opinions rendered by the Commission. According to the Commission, we lack such authority for two reasons. First, this Court only has jurisdiction in cases that present a justiciable controversy, and the petition for review of Opinion No. 239 presents no justiciable controversy. Second, although the JQC Rules provide that this Court may ask the Commission to reconsider a formal advisory opinion, the Commission asserts that the Rules do not contemplate our review of its formal advisory opinions, and in any event, the Commission argues, our review of its formal advisory opinions would impair and interfere with the constitutional prerogative of the Commission to discipline judges. These contentions are without merit.³

(a) "It is a settled principle of Georgia law that the jurisdiction of the courts is confined to justiciable controversies," Fulton County v. City of Atlanta, 299 Ga. 676, 791 S.E.2d 821, 2016 WL 5758991 (Case No. S16A0689, decided Oct. 3, 2016), and "[t]here can be no justiciable controversy unless there are interested parties asserting adverse claims upon a state of facts which have accrued." Pilgrim v. First Nat. Bank, 235 Ga. 172, 174, 219 S.E.2d 135 (1975) (citation omitted). See also Mullin v. Roy, 287 Ga. 810, 812 (3), 700 S.E.2d 370 (2010) ("A controversy is justiciable when it is definite and concrete, rather than being hypothetical, abstract, academic, or moot." (Citation and punctuation omitted)). The Commission is correct that the petition for review filed by the Council presents no justiciable controversy, but it does not follow that this Court is without authority to review Opinion No. 239. The Commission "confuses power and jurisdiction." Wallace v. Wallace, 225 Ga. 102, 111 (3) (a), 166 S.E.2d 718 (1969). As we explained in Wallace, nearly fifty years ago,

Jurisdiction refers to the types of cases the court can hear and decide. Power includes the authority to perform any function reasonably necessary to effectuate its jurisdiction, improve the administration of justice, and protect the judiciary as an independent department of the government.

Id. (citation omitted). This matter is not a case,⁴ and whether we properly may review a formal advisory opinion rendered by the Commission is not a question of jurisdiction. Indeed, for many years, and on many occasions, this Court has reviewed advisory opinions rendered by the State Bar of Georgia,⁵ and we have done so pursuant to our inherent "authority to govern the practice of law in Georgia," In re UPL , 277 Ga. 472, 473, 588 S.E.2d 741 (2003), not our jurisdiction to decide cases as limited by Article VI, Section VI of the Constitution of 1983. Even the Commission concedes that we have the authority to review formal advisory opinions of the State Bar, the limits of our jurisdiction to decide cases notwithstanding. That this Court may be without jurisdiction to entertain a petition to review Opinion No. 239 does not, therefore, resolve the extent to which this Court has authority to entertain such a petition.

(b) Our Constitution establishes the Commission and vests it with the power to discipline judges, see Ga. Const. of 1983, Art. VI, Sec. VII, Par. VI, but the constitutional authority of the Commission does not put its advisory opinions beyond the review of this Court. Although the Commission possesses the authority to impose discipline to enforce the standards of judicial conduct,⁶ nothing in the Constitution vests the Commission with the authority to set those standards in the first instance, to render authoritative and binding interpretations of the standards, or to offer any interpretation of the standards other than in the context of a particular disciplinary proceeding. To the contrary, the Constitution itself identifies in general terms the conduct for which judges may be disciplined, see Art. VI, Sec. VII, Par. VII,⁷ and the authority to prescribe more particularized standards for judicial conduct belongs to this Court as an incident of the judicial power, see Judicial Qualifications Comm. v. Lowenstein, 252 Ga. 432, 314 S.E.2d 107 (1984),⁸ an authority that we have exercised by our adoption of the Code of Judicial Conduct. Moreover, the Constitution expressly vests this Court with the authority to adopt rules for the Commission, see Art. VI, Sec. VII, Par. VII (a),⁹ and pursuant to that authority, we have adopted JQC Rule 22, subsection (a) of which gives the Commission the power "to render official formal advisory opinions concerning a proper interpretation of the Code of Judicial Conduct." JQC Rule 22 (a) is the current source of the Commission's authority to render formal advisory opinions.

Other subsections of JQC Rule 22 limit that authority, however, and make clear that the Commission does not have the final word on a proper interpretation of the Code of Judicial Conduct. Indeed, subsection (d) provides that "[t]he Supreme Court's determination of the propriety of particular conduct shall supersede any conflicting advisory opinion of the Commission,"¹⁰ and more significantly, subsection (b) provides that "[t]he Commission shall examine and reconsider any of its advisory opinions upon the request of the Supreme Court." The authority of this Court to require the Commission to "examine and reconsider any of its advisory opinions"¹¹ implies a power to give guidance to the Commission,¹² and that, in turn, necessarily implies a power to review the formal advisory opinions that are the subject of such guidance.¹³

The Commission concedes that JQC Rule 22 is a constitutional exercise of our authority to make rules for the Commission, but it contends nevertheless that our review of its formal advisory opinions would interfere in an unprecedented way with its constitutional prerogative to discipline judges. JQC Rule 22 (b) notwithstanding, the Commission insists that the Court should exercise a power of review only in disciplinary proceedings, and only after the Commission has concluded those proceedings and made a recommendation of discipline. That circumstance is, of course, one in which the Constitution specifically and explicitly contemplates our review, see Ga. Const. of 1983, Art. VI, Sec. VII, Par. VIII, and on several occasions, we have exercised a power of review following the conclusion of disciplinary proceedings before the Commission.¹⁴ But we previously have undertaken to review the proceedings of the Commission in other circumstances, including a matter, for instance, in which we directed the Commission to close an ongoing disciplinary inquiry because the subject of the inquiry was not subject to the jurisdiction of the Commission. See, e.g., ...