R. Judi. Qual. Commi. Ga. 17
R. Judi. Qual. Commi. Ga. 17
Commentary
[1] The Director is authorized to screen complaints because complaints that fail to state grounds for discipline may represent a large portion of those received by the Commission. However, the complainant shall be entitled to seek reconsideration by the Investigative Panel, and the Investigative Panel may also review the dismissals to determine that the screening is being done properly.
[2] The term "complaint" includes information received by telephone, news items, and any other source and includes complaints initiated by either the Director or the Investigative Panel or the Director on their own motions. See the definition of "Complaint" in the Terminology Section. The Director and the Investigative Panel may consider complaints submitted anonymously or confidentially in the same manner as other complaints in order to ensure that lawyers, court personnel, or litigants can bring misconduct and incapacity to the attention of the Commission without the fear of retaliation.
[3] The Director need not notify a judge of every complaint made against the judge. For example, it is not necessary to notify a judge of a complaint that is dismissed after screening on the ground that it does not state facts constituting misconduct. Also, the Director may want to withhold the fact of a complaint from a judge until after a preliminary investigation has been conducted. The Director should notify the judge of the complaint within 10 days after the Investigative Panel authorizes a full investigation unless the panel determines that notice should be deferred. The Investigative Panel should permit deferral only where necessary to protect the identity of a witness who may suffer harm. The Director must notify the judge before the Investigative Panel considers a disposition, in order to ensure that the Investigative Panel can consider all the facts, including the judge's statement, before determining whether to dismiss the case, file formal charges, or offer the respondent a deferred discipline agreement, private admonition, or agreement to resign or retire.
[4] During a preliminary investigation, the Director and any staff or investigators assisting the Director should be cognizant in seeking evidence and conducting interviews of the objective of maintaining the confidentiality of the proceeding, particularly before the Investigative Panel has authorized a full investigation.
[5] When giving notice, the Director should inform the judge of the nature of the allegations, the Code provisions alleged to have been violated, the duty of the judge to respond if requested, the judge's opportunity to meet with the Director or the Investigative Panel, and the possibility of resolving the complaint by agreement. The Director should advise the judge that since the investigation is ongoing, facts may be discovered that will change the violations charged.
[6] If the Director requests a written response from the judge, the Director should state when the judge is to respond and advise the judge where he or she may find a copy of these Commission Rules. If either the judge, the Director, or the Investigative Panel requests an opportunity for the judge to meet with the Director or the Investigative Panel, the judge may have counsel present at the meeting.
[7] In reviewing a complaint after investigation, the Investigative Panel should consider the Director's recommendation, including any memoranda on the law, together with the investigative file. The investigative file should include the statements of the complainant, the witnesses, if any, and the respondent, as well as relevant documents and other evidence.
[8] If the Investigative Panel decides to impose a private admonition, the panel should condition the private admonition upon the judge's execution of a waiver of the right to a hearing. Such a waiver should bar the judge from objecting to the use at a subsequent proceeding against the judge of the findings that are the basis for the admonition. The private admonition should be in writing.
[9] A deferred discipline agreement may be entered into only with the consent of the judge. The agreement sets forth conditions imposed by the Investigative Panel with which the judge must comply in order to avoid the reinstatement of disciplinary proceedings. The agreement must be in writing. A deferred discipline agreement does not constitute a finding that misconduct was committed. It is appropriate only when the alleged misconduct is minor, that is, it does not reflect on the judge's fitness for office, and when the underlying cause of the misconduct can be addressed through a treatment or rehabilitation program. Upon successful completion of the program, the complaint will be dismissed. If the judge fails to complete the program, the Investigative Panel may proceed to determine whether to dismiss the complaint against the judge, impose a private admonition with the consent of the judge, or direct the Director to file formal charges or a petition for transfer to incapacity inactive status.
[10] The ultimate sanction for judicial misconduct or incapacity is the removal or involuntary retirement of the judge, with or without a prohibition on the judge's seeking or holding judicial office in the future. A judge may always voluntarily resign or retire, but doing so unilaterally does not preclude the Commission from proceeding with an investigation and seeking sanctions by order of the Supreme Court, if only to ensure that the judge does not seek or hold judicial office in the future. If a judge believes that his or her removal from office or involuntary retirement would be the likely result of the full process provided by these Rules and that he or she would prefer to terminate the process before formal charges are filed by agreeing to resign or retire, with or without a prohibition on seeking or holding judicial office in the future, and if the Investigative Panel believes that this result would be a fair disposition of the matter and is in the interests of justice, there is no need to continue the process and delay that result. Indeed, this will often be the best means of resolving matters in which the judge's misconduct or incapacity is serious and readily provable.
[11] Such an agreement to resign or retire must be in writing; in the agreement, the judge may admit to all or certain of the allegations against him or her, or agree that such allegations could be properly proved in a hearing, or neither confirm nor deny the allegations, but the agreement must indicate that the judge is resigning or retiring in light of an investigation by the Commission. Pursuant to OCGA § 15-1-21(k) (1), the Director must file a report of such an agreement reached in a disciplinary matter publicly in the Supreme Court, so that the public is notified that the judge resigned or retired due to a Commission investigation and to avoid such speculation about judges who resign or retire under other circumstances. A copy of such report shall also be provided to the Hearing Panel for informational purposes. The Director shall also file a report of such an agreement reached in an incapacity matter confidentially with the Hearing Panel and the Supreme Court for informational purposes.
[12] An agreement to resign or retire is a contract between the judge and the Investigative Panel, is not reviewed or approved by the Hearing Panel or the Supreme Court and is not a court order. If the judge violates the agreement, the Investigative Panel may seek to enforce the agreement as a contract with the judge, or it may seek to rescind the agreement and direct the Director to file formal charges.
[13] Such agreements are not permitted for intermediate public sanctions that allow a judge to continue in office, such as suspension, limitations on the performance of judicial duties, censure, and public reprimand, or for temporary judicial incapacity, as decisions to leave in office a judge who allegedly has committed significant misconduct or suffers from a significant physical or mental incapacity should be made by the Supreme Court on recommendation of the Hearing Panel. Likewise, an agreement to resign or retire is not authorized after formal charges are filed; after that point, discipline by consent is governed by Rule 23.
[14] A stay of the proceedings may be appropriate when there is an ongoing civil or criminal action against the judge, so as not to interfere with the expeditious litigation of the court action.