R. Judi. Qual. Commi. Ga. 3

As amended through October 9, 2024

Rule 3 - Organization and Authority of the Commission

A.Panels and Meetings. The Commission is divided into an Investigative Panel of seven members and a Hearing Panel of three members. See Rule 2.C; OCGA § 15-1-21(e) (1). The Investigative Panel shall meet periodically as determined by the panel. Meetings of the Investigative Panel other than periodic meetings may be called by the chairperson upon the written request of three members of that panel. Meetings of the Hearing Panel may be called by the presiding officer upon the presiding officer's own motion and shall be called by the presiding officer upon the written request of the other two members of the panel. Meetings may be conducted in person, by conference call, or electronically, except that members of the Investigative Panel must be present in person for a meeting with a judge pursuant to Rule 17.C (4) and members of the Hearing Panel must be present in person for a hearing pursuant to Rule 24. Further, except in situations in which the chairperson declares an emergency in his or her sole discretion, members of the Investigative Panel must be present in person or remotely using video technology at a meeting in order to vote to authorize a full investigation under Rule 17.B (3) or to vote on any action under the provisions of Rule 17.C or 17.D.

B.Officers. The Investigative Panel shall annually elect one of its members to serve as chairperson and another to serve as vice-chairperson. The vice-chairperson shall perform the duties of the chairperson whenever the chairperson is absent or unable to act. The judge member of the Hearing Panel shall serve as its presiding officer. See OCGA § 15-1-21(f) (3) (B) and (f) (4) (B).

C.Quorum. A quorum of the Investigative Panel shall require at least four members to be present and shall consist of at least one judge, one attorney, and one citizen. A quorum of the Hearing Panel shall require all members to be present. A decision by a panel shall be by majority vote of the members present except for minor procedural or administrative matters assigned to the Director, chairperson, or presiding officer, as applicable, for a decision as provided by these Rules. See OCGA § 15-1-21(i) (3).

D.Expenses. Members of the Commission shall serve without compensation but shall receive the same daily expense allowance as members of the General Assembly receive, as set forth in OCGA § 28-1-8, for each day such member is in physical attendance at a panel meeting or hearing, plus either reimbursement for actual transportation costs while traveling by public transportation or the same mileage allowance for use of a personal motor vehicle in connection with such attendance as members of the General Assembly receive. Notwithstanding the preceding sentence, no Commission member shall receive such expense allowance or travel reimbursement if he or she is entitled to receive an expense allowance, travel reimbursement, or salary for performance of duties as a state employee. Expense allowances and travel reimbursement shall be paid from moneys appropriated or otherwise available to the Commission. See OCGA § 15-1-21(i) (4).

E.Powers and Duties.

(1) The Investigative Panel shall have the duty and authority to:

(a) promulgate rules for the Commission's governance that comport with due process and are not otherwise provided by the Georgia Constitution or OCGA § 15-1-21; provided, however, that such rules shall be effective only upon review and adoption by the Supreme Court. See OCGA § 15-1-21(j);

(b) propose amendments to the Georgia Code of Judicial Conduct and these Rules, subject to review and adoption by the Supreme Court;

(c) recommend formal advisory opinions to the Hearing Panel;

(d) select the Director of the Commission; and

(e) authorize the employment of such additional staff as the Commission deems necessary to carry out the powers assigned to the Commission. See OCGA § 15-1-21(e) (2).

(2) In addition to the duties assigned to the Director in Rule 4, the Investigative Panel may delegate to the Director the duty and authority to:

(a) maintain the Commission's records;

(b) maintain statistics concerning the operation of the Commission and make them available to the Commission, the Supreme Court, the General Assembly, and the public;

(c) prepare the Commission's budget for its approval and administer the funds;

(d) notify the appropriate appointing authority of vacancies on the Commission;

(e) prepare an annual report of the Commission's activities for presentation to the Commission, the Supreme Court, the General Assembly, and the public; and

(f) inform the judiciary and the public of the existence and operation of the judicial discipline system, including the Investigative Panel's address and telephone number and the disposition of each matter in which public discipline is imposed.

(3) The Investigative Panel shall have the duty and authority to:

(a) review the recommendations of the Director after preliminary investigation and either authorize a full investigation or dismiss the complaint;

(b) decide how to proceed as provided in Rule 17.D (2); and

(c) oversee the prosecution by the Director of formal charges, before the Hearing Panel and the Supreme Court.

(4) The Hearing Panel shall have the duty and authority to:

(a) adjudicate formal charges filed by the Investigative Panel, including ruling on pre-hearing motions, conducting hearings on formal charges and making findings, conclusions, and recommendations to the Supreme Court for sanctions or dismissing the case, pursuant to Rule 23 and Rule 24; and

(b) issue formal advisory opinions on its own initiative or on the recommendation of the Investigative Panel, subject to review by the Supreme Court, regarding the Georgia Code of Judicial Conduct. See OCGA § 15-1-21(e) (3).

F.Recusal.

(1) Each member of the Commission shall be entitled to vote on any matter coming before his or her respective panel unless otherwise provided by this Rule. The chairperson of the Investigative Panel and the presiding officer of the Hearing Panel shall retain a vote on all matters except those in which such chairperson or presiding officer has been recused. No Commission member present at a panel meeting shall abstain from voting unless he or she is recused. See OCGA § 15-1-21(i) (1).

(2) A member of the Investigative Panel shall recuse himself or herself from any matter in which recusal would be required of a prosecutor under Georgia law and the Georgia Rules of Professional Conduct for lawyers, treating the Commission as the member's client. A member of the Hearing Panel shall recuse himself or herself from any matter in which recusal would be required of a judicial officer under Georgia law and the Georgia Code of Judicial Conduct.

(3) A judge member of either panel shall recuse himself or herself from any matter involving the judge member and from any matter involving a judge of a court in the same judicial circuit as the judge member if the judge serves on the same court as the judge member.

(4) A party to the proceeding may file a motion to recuse a Commission member from the matter within a reasonable time after the party discovers or should have discovered the grounds for recusal. The motion and all evidence thereon shall be presented by accompanying affidavit(s) that shall clearly state the facts and reasons for the belief that bias or prejudice exists, being definite and specific as to time, place, persons, and circumstances of the status, conduct, or statements that demonstrate either bias in favor of any adverse party, prejudice toward the moving party, or that the member's impartiality otherwise might be reasonably questioned. Allegations consisting of bare conclusions and opinions shall not be legally sufficient to support the motion.

(5) Whether raised by motion to recuse or otherwise, the Commission member whose impartiality is questioned shall determine individually whether or not to recuse, although the member may consult with other members of his or her panel.

(6) If a commission member recuses himself or herself from a matter, he or she shall immediately advise the Director of that decision and shall not participate further in the matter. The recused member shall be replaced as a member for that particular matter if he or she serves on the Hearing Panel or if he or she serves on the Investigative Panel and recusal(s) on the matter will result in the Investigative Panel lacking a quorum or being unable to reach a decision on the matter due to an equal division of the votes on the matter. A recused member shall be replaced as follows:

(a) A judge member shall be promptly replaced by the next judge designated by the Supreme Court to replace a Justice who is recused from a case, as identified by the Clerk of the Supreme Court.

(b) An attorney member shall be promptly replaced by an attorney, not already appointed as a member of the Commission, selected by the Clerk of the Supreme Court at random from the most recent list of attorneys provided by the State Bar of Georgia to the Commission's appointing authorities pursuant to OCGA § 15-1-21(f) (2).

(c) A citizen member shall be promptly replaced by an individual qualified to serve as a citizen member, selected by the Chief Justice of the Supreme Court from among the citizen members who formerly served on the Commission as currently or previously constituted. If no such former citizen members are available or willing to serve, the replacement citizen members shall be selected by the Clerk of the Supreme Court at random from the most recent list of individuals designated by the Supreme Court as eligible replacement citizen members.

R. Judi. Qual. Commi. Ga. 3

Adopted effective 1/1/2018; amended effective 8/19/2022; amended effective 2/3/2023.

Commentary

[1] Although not constitutionally mandated, these Rules seek to fully separate the investigative and adjudicative functions of the Commission and its members. No matter how fair individual members can be, the system cannot convey the appearance of fairness when members have full access to investigative materials, formulate their decisions to file charges in reliance on the investigative files, and then make adjudicative decisions based on the evidence presented in formal proceedings. This process is in conflict with the fundamental division of investigative and adjudicative responsibilities that is a hallmark of our modern judicial and administrative disciplinary systems. The indicting grand jury does not hear and determine the evidence presented at trial. Such a process may not be regarded as fair by a defendant who is indicted and convicted by the same body.

Thus, the Commission is divided into separate investigative and hearing panels so that no member of the Commission is involved both in deciding whether to file formal charges and in hearing the case on those charges.

[2] The independence of the Commission will be enhanced if the Investigative Panel chooses its own leadership.

[3] No qualified person should be deterred from serving on the Commission by the expenses incurred for service.

[4] It is essential that the Commission have the authority to propose its own rules of procedure to achieve uniformity, continuity, and the equitable and expeditious resolution of recurring issues, subject to the requirements of due process and approval by the Supreme Court.

[5] Educating the public, bar, and judiciary should be an integral part of the enforcement function. Distribution of a detailed annual report is essential to this purpose. To fulfill its educational function, the annual report should contain: a description of the Commission's purpose and function, basic statistics, descriptions of proper and improper judicial conduct, a discussion of the cases decided during the year including private sanctions (without identifying the judges), an explanation of any recommendations for changes in procedure or in the Georgia Code of Judicial Conduct, and an explanation of how to bring a matter before the Commission. The annual report should be widely distributed and available on the Commission's website.