Inquiry Concerning Judge Christian Coomer

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia

Decided: March 15, 2023

S21Z0595. INQUIRY CONCERNING JUDGE CHRISTIAN
COOMER.

PER CURIAM.

This long-delayed judicial discipline matter comes to us after a

full hearing and the Judicial Qualifications Commission (“JQC”)

Hearing Panel’s recommendation to remove Judge Christian

Coomer from his seat on the Court of Appeals. We conclude that the

Hearing Panel made at least two critical legal errors that prevent us

from resolving the matter on this record. Accordingly, we remand for

the Hearing Panel to make new findings in the light of the law as it

actually exists, and to do so quickly.

1. Introduction.

In late 2020, the JQC brought formal charges against Judge

Coomer. The charges, as later amended, comprise 36 counts alleging
that Judge Coomer violated three provisions of the Georgia Code of

Judicial Conduct (“the Code”), in several ways. First, he allegedly

violated several Georgia Rules of Professional Conduct in his

capacity as a lawyer in dealings with a client including allegations

of substantial “dishonesty, deceit, and misrepresentation.” Second,

he allegedly used campaign funds for impermissible purposes and

failed to disclose certain expenditures. And third, he allegedly

engaged in several transactions — both campaign-related and

personal — in which he declared a “fictitious” transfer to his

campaign account and misrepresented his liabilities and assets in a

mortgage application. Many of the allegations involved conduct that

occurred exclusively before Judge Coomer was a judge or judicial

candidate. A few days after formal charges were filed, Judge Coomer

was suspended from office pending resolution of this matter.

In 2021, the JQC Hearing Panel rejected Judge Coomer’s

arguments that the JQC lacked jurisdiction over conduct that

occurred before Judge Coomer was a judge or judicial candidate. And

in late 2022, nearly two years after the charges had been filed, the

2
JQC finally tried Judge Coomer in a hearing held over a three-

month period.

On January 30 of this year, the Hearing Panel submitted its

Report and Recommendation to this Court. The Hearing Panel

found that the Director failed to prove the counts alleging

dishonesty, deceit, misrepresentation, and fictitious transfers. But

the Hearing Panel found that the Director proved most of the

remaining counts, and that Judge Coomer’s violations were

committed either knowingly or in ignorance of the law, and that

neither option was acceptable. The Hearing Panel recommended

that we remove Judge Coomer from office.

In so doing, the JQC — both the Director and the Hearing

Panel — made two critical legal errors that prevent us from

resolving this matter now. First, both the Director and the Hearing

Panel determined that the JQC has “jurisdiction” over conduct that

occurs before a person becomes a judge or judicial candidate, and

thus could pursue counts against Judge Coomer regarding pre-

judicial conduct. That is wrong. The Code of Judicial Conduct plainly

3
applies only to conduct by judges and judicial candidates while they

are judges or judicial candidates — indeed, the JQC acknowledged

as much in two separate filings with this Court, not long before filing

formal charges against Judge Coomer. Inexplicably, however,

neither the Director’s argument to the Hearing Panel nor the

Hearing Panel’s conclusion even acknowledges the JQC’s previous

position; the Director’s only acknowledgement of that position came

after Judge Coomer raised the issue last week, and still fails to

engage with the relevant text. The Code of Judicial Conduct simply

has no application to conduct by people who are not yet judges or

judicial candidates, even if they later become a judge or judicial

candidate.

Second, both the Director and the Hearing Panel failed to

understand the circumstances in which the Constitution and our

case law permits judicial discipline. Longstanding precedent makes

clear that although actions taken in a judicial capacity — acting as

a judge, not merely while a judge — can warrant discipline

regardless of good faith, actions taken outside a judicial capacity can

4
warrant discipline only when taken in bad faith. None of the counts

against Judge Coomer allege any actions taken in a judicial capacity,

and so, in order to prevail on those counts, the Director would need

to prove bad faith by clear and convincing evidence. But the Director

instead argued that even mere negligence would warrant discipline,

without acknowledging our case law to the contrary. And the

Hearing Panel accepted that argument, recommending removal

based on an apparent assumption that it did not matter whether

Judge Coomer violated the law knowingly or in ignorance. But bad

faith requires more than ignorance, and because the Hearing Panel’s

report and recommendation was ambiguous as to whether it found

that Judge Coomer acted with bad faith, without clearer findings we

cannot determine what, if any, discipline is appropriate.

We are not in a position to make our own findings. The Hearing

Panel heard dozens of hours of live testimony — the hearing

transcript alone is more than 2,100 pages long — and determining

whether violations of the law were knowing and intentional or

merely negligent requires careful credibility determinations based

5
on personal observation. Only the Hearing Panel can make such

determinations. Accordingly, we remand the matter for the Panel to

do precisely that.

2. Background.

Judge Coomer was admitted to the State Bar of Georgia in

1999. After leaving active lawyer duty with the United States Air

Force’s Judge Advocate General’s program in 2005, Judge Coomer

started his own private law practice in Cartersville. He also served

in the Georgia House of Representatives from 2011 until he joined

the Court of Appeals in 2018. He briefly served as a judge on the

Municipal Court of Adairsville in 2014. Before his appointment to

the Court of Appeals, Judge Coomer formally pursued two other

judicial vacancies. He applied for a vacancy on the Court of Appeals

on March 29, 2018, withdrawing from consideration the following

month. On August 30, 2018, Judge Coomer applied for a vacancy on

this Court, but on September 14, 2018, Governor Nathan Deal

announced his intention to appoint Judge Coomer to the Georgia

Court of Appeals. On October 31, 2018, Governor Deal appointed

6
Judge Coomer to the Court of Appeals and administered the oath of

office. Judge Coomer was elected to the Court of Appeals for a full

six-year term in 2020.

Also in 2018, the JQC grappled with the question of how — if

at all — the Code of Judicial Conduct applied to conduct by people

not yet judges or judicial candidates. As discussed in more detail

below in Division (4) (b), in June 2018 the JQC Hearing Panel

submitted for this Court’s review a formal advisory opinion

concluding that the Code of Judicial Conduct’s text made clear that

it did not apply to conduct by those not yet judges or judicial

candidates. Later that year, the JQC Investigative Panel submitted

a request that this Court change the Code to apply to such pre-

judicial conduct. We did not approve the proposed changes. At some

point, the JQC withdrew the formal advisory opinion, a fact we

acknowledged by order in September 2020.

On December 28, 2020, the JQC filed formal charges against

Judge Coomer, alleging 26 counts of misconduct in violation of the

Code. The allegations largely dealt with Judge Coomer’s

7
representation of a client, James Filhart, while in private practice,

as well as dealings with Filhart after Judge Coomer became a judge

on the Court of Appeals. The formal charges also included

allegations regarding Judge Coomer’s campaign account and

allegations that he made misrepresentations in a March 2020

mortgage application.

The day after formal charges were filed, the Investigative

Panel filed a motion to suspend Judge Coomer pending the final

resolution of the JQC proceeding under JQC Rule 15 (C). But that

rule permits interim suspensions only upon “receipt of sufficient

evidence demonstrating that a judge poses a substantial threat of

serious harm to the public or to the administration of justice . . . .”

The Investigative Panel did not offer any evidence at all, and so we

held the motion in abeyance to allow it to submit evidence. We also

rejected Judge Coomer’s initial attempt to consent to a suspension

because he did not admit even conditionally for purposes of a motion

to suspend that the standard for suspension had been met; the JQC

Rules do not permit a judge to consent to a suspension without

8
satisfying the evidentiary standard of Rule 15 (C). On January 5,

2021, the JQC filed a new motion to suspend, which included

averments that Judge Coomer consented to the motion, agreeing

only for purposes of the motion that the JQC could prove the

allegations against him, and further agreeing that the allegations in

the motion and the formal charges, if taken as true, warranted

suspension under the standard set forth in JQC Rule 15 (C). This

Court granted this motion, suspending Judge Coomer with pay, per

JQC Rule 15 (C) and the Georgia Constitution’s requirement that

“[a]n incumbent’s salary, allowance, or supplement shall not be

decreased during the incumbent’s term in office.” Ga. Const. of 1983,

Art. VI, Sec. VII, Par. V; see also generally DeKalb County School

Dist. v. Ga. State Bd. of Educ., 294 Ga. 349, 369 (4) (a) (751 SE2d

827) (2013) (state and federal due process rights apply to

constitutional officers in context of suspension and removal).

On March 8, 2021, Judge Coomer sought dismissal of the

formal charges on the ground that the JQC lacked the power to

discipline him for conduct alleged to have occurred before he became

9
a judge or judicial candidate, or for conduct that the State Bar of

Georgia or the Georgia Government Transparency and Campaign

Finance Commission (“CFC”) were investigating. The Hearing Panel

denied the motion on December 16, 2021. On January 25, 2022,

Judge Coomer filed with this Court a petition for a writ of

mandamus, writ of prohibition, and stay of proceedings. 1 The

petition asked this Court to prohibit the JQC “from exercising

subject matter jurisdiction over allegations of conduct that occurred

prior to the time he became a judge and allegations of conduct that

occurred prior to the time he became a judicial candidate, mandat[e]

that the JQC dismiss and close the ongoing disciplinary inquiry

relating to such allegations” against Judge Coomer “as beyond the

subject matter jurisdiction granted to the JQC” and “stay . . . the

JQC inquiry and proceeding pending the Court’s determination of

the threshold issue of subject matter jurisdiction.” Primarily on

1 That petition was not an appeal from the Hearing Panel’s order; at the
time, no mechanism for appeal existed. Instead, that petition sought to invoke
our rarely-exercised original jurisdiction. On February 3, 2023, a new JQC
Rule 25 (B) (4) permitting interlocutory appeals became effective.
10
procedural grounds, the Director opposed our exercise of jurisdiction

over Judge Coomer’s petition. On March 8, 2022, this Court

dismissed the petition, saying that the petition did not present one

of the extremely rare instances that warranted the Court exercising

its power to grant original relief. The dismissal order was clear that

it expressed no view on the merits of Judge Coomer’s arguments and

stated that the dismissal was without prejudice to Judge Coomer’s

right to assert such arguments in any future proceeding in this

Court.

Ten days later, the Director filed amended formal charges

against Judge Coomer, this time expanding the allegations to

include some additional counts related to alleged campaign finance

violations arising from trips he took to Israel in 2017 and Hawaii in

2018. All told, the amended formal charges included 36 counts. The

JQC charged that Judge Coomer violated three provisions of the

Code: Rule 1.1 (“Judges shall respect and comply with the law.”);

Rule 1.2 (A) (“Judges shall act at all times in a manner that

promotes public confidence in the independence, integrity, and

11
impartiality of the judiciary.”); and Rule 4.2 (B) (“Judicial

candidates, including incumbent judges, shall not use or permit the

use of campaign contributions for the private benefit of themselves

or members of their families.”).

A formal hearing on the amended charges was held on October

17-21, November 9, and December 21-22, 2022. On January 30,

2023, the Hearing Panel filed with this Court a Report and

Recommendation recommending that Judge Coomer be removed

from his position on the Court of Appeals. The Hearing Panel found

that the Director had proved all but seven of the counts against

Judge Coomer by clear and convincing evidence. 2

On February 21, Judge Coomer timely filed a Notice of

Exceptions to the Hearing Panel’s Report and Recommendation. See

JQC Rule 24 (F). Disagreeing with many of the Hearing Panel’s

factual and legal conclusions, Judge Coomer argues that the

Director failed to carry the burden to show by clear and convincing

2We also note that in addition to rejecting seven counts altogether, the
Hearing Panel concluded that the JQC had proved only “half” of one additional
count.
12
evidence that Judge Coomer should be removed from office. Judge

Coomer requests that the Court, if it is inclined to impose any

discipline here, issue a public reprimand or censure. The Director

did not file a notice of exceptions, thereby accepting the findings and

conclusions of the Hearing Panel. This matter now comes before us

to review the Hearing Panel’s Report and Recommendation and

determine what discipline, if any, is warranted.

3. In reviewing a recommendation for judicial discipline, we
defer to factual findings unless clearly erroneous, but review legal
determinations de novo, and exercise our own discretion in
determining what discipline, if any, is warranted.

We begin by setting out the proper standard of review. The

Constitution divides tasks associated with judicial discipline

between the JQC and this Court, assigning to the JQC the power to

investigate, try, and recommend disciplinary sanctions in judicial

misconduct matters, and vesting only this Court with the power to

impose disciplinary sanctions. See Ga. Const. of 1983, Art. VI, Sec.

VII, Pars. VI (a), VIII; see also Inquiry Concerning Crawford, 310

Ga. 403, 407 n.5 (851 SE2d 572) (2020) (Blackwell, J., concurring).

13
Pursuant to a constitutional amendment approved by Georgia

voters in 2016, the governance of the JQC itself has undergone

considerable change in recent years. Georgia voters approved the

amendment of certain provisions of the Georgia Constitution

governing the composition and procedures of the JQC. See 2016 Ga.

Laws pp. 896-897; 2022 Ga. Laws, p. 383A. The amendment

“abolished” the existing JQC and gave the General Assembly the

authority to “create and provide for the composition, manner of

appointment, and governance of” the JQC, with appointments to the

JQC “subject to confirmation by the Senate as provided for by

general law.” See 2016 Ga. Laws pp. 896-897 (amending Ga. Const.

of 1983, Art. VI, Sec. VII, Par. VI (a), (c)). Pursuant to its new

authority, the General Assembly passed extensive legislation

regarding the composition of the JQC and its procedures. Most

notably, the new statutory structure created a bifurcated system

where the Investigative Panel and its staff investigates and

prosecutes allegations of judicial misconduct and the Hearing Panel

adjudicates formal charges and makes recommendations to this

14
Court. See OCGA § 15-1-21 (e). But the constitutional amendment

left untouched this Court’s constitutional authority over judicial

discipline, as well as the constitutionally prescribed circumstances

in which judicial discipline may be imposed. In other words,

although the General Assembly has exercised its new-found

authority to shape the power and procedures of the JQC, such that

the way the JQC does its work has changed, the authority of this

Court in the system of judicial discipline remains the same, as do

the standards for imposing discipline. Accordingly, our pre-2016

case law on these points remains “binding.” See Ga. Const. of 1983,

Art. VI, Sec. VI, Par. VI.

In considering whether the Director has met the standard of

proof as to charges of misconduct, we employ a “clear and convincing

proof standard.” See Inquiry Concerning Crawford, 310 Ga. at 405

(2). Pursuant to its constitutional obligation to review any proposed

removal of a judge, this Court “exercise[s] its judgment based upon

the entire record in order to determine whether [the] conduct [of a

judge or judicial candidate] warrants discipline, and, if so, what

15
sanctions should be imposed.” In re Inquiry Concerning a Judge, 275

Ga. 404, 406 (566 SE2d 310) (2002) (citation and punctuation

omitted). “In performing this independent function, we give

substantial consideration and due deference to the [Hearing Panel’s]

ability to evaluate the credibility of the witnesses who appear before

it. However, this Court reaches its own conclusions regarding

disciplinary sanctions against a sitting judge, and the

recommendations of the [Hearing Panel] are not binding upon us.”

Id. Again, because the recent constitutional overhaul of the JQC did

not alter this Court’s authority over the disciplinary process, this

standard remains the same.

We therefore apply the sort of review this Court generally

applies to review of a fact-finder who also draws legal conclusions

and makes determinations as to an appropriate outcome, i.e.,

deferring to credibility determinations and factual findings unless

clearly erroneous, and reviewing legal determinations and the

ultimate outcome de novo. See In re Inquiry Concerning a Judge,

275 Ga. at 406; see also, e.g., Nelson v. State, 312 Ga. 375, 377 (863

16
SE2d 61) (2021) (standard for reviewing a trial court’s ruling on a

defendant’s motion to suppress); In the Matter of Cook, 311 Ga. 206,

214-215 (1) (857 SE2d 212) (2021) (standard of review for State Bar

disciplinary matters); OCGA § 24-6-620 (Evidence Code provides

that “[t]he credibility of a witness shall be a matter to be determined

by the trier of fact[.]”).

4. The Hearing Panel misapprehended the scope of the Code
of Judicial Conduct by applying it to actions by Judge Coomer before
he became a judicial candidate.

Although we have endeavored to apply this standard of review

here, we are constrained by the two major flaws in the Hearing

Panel’s Report and Recommendation. We start by considering the

first of these flaws: the Hearing Panel based its recommendation at

least in part on conduct that occurred before Judge Coomer became

a judge and outside of the time that he was seeking a judgeship. But

that is incorrect; the Code of Judicial Conduct does not apply to such

pre-judicial conduct.

Judge Coomer has argued throughout these proceedings that

he cannot be disciplined for pre-judicial conduct. He has contested

17
the JQC’s ability to seek discipline of him for conduct that occurred

before he offered himself for consideration for a judgeship, framing

this as a question of the JQC’s “jurisdiction.” Prior to conducting the

formal evidentiary hearing in this matter, the Hearing Panel

rejected these arguments, relying primarily on the JQC Rules and

Georgia Constitution to conclude that the JQC in fact has

“jurisdiction” over pre-judicial conduct to the extent that conduct “is

prejudicial to the administration of justice which brings the judicial

office into disrepute.”

We agree with Judge Coomer that the JQC cannot pursue

charges against him arising from actions taken before he became a

judge or judicial candidate. But instead of this being a question of

the JQC’s jurisdiction or constitutional power, this conclusion is

instead the result of the plain text of the Code of Judicial Conduct,

which does not apply to actions taken by people who are not yet

judges or judicial candidates.

(a) We need not resolve Judge Coomer’s argument that due
process forecloses discipline based on pre-judicial conduct.

18
Judge Coomer has argued that imposing discipline for conduct

prior to his time as a judge or judicial candidate would violate his

due process rights because he had no notice at the time he engaged

in the alleged conduct that it would be subject to the Code. In its

order denying the motion to dismiss, the Hearing Panel rejected that

argument, reasoning that the judicial discipline process is not about

punishing a judge, but determining his fitness to serve. The Panel

cited language from a 1995 decision of this Court that “the removal

of a judge is not designed to punish the individual, but rather is the

legal consequence of judicial misconduct or unfitness.” Matter of

Inquiry Concerning a Judge, 265 Ga. 843, 848 (4) (462 SE2d 728)

(1995). The Panel added that Judge Coomer “knew or should have

known when repeatedly applying for and ultimately attaining his

position as a judge that the JQC Rules expressly provide the JQC

with jurisdiction over his pre-judicial conduct and that such conduct

may well bear upon his capacity to perform his duties with integrity,

impartiality, and competence, as well as relate to the public’s

confidence in the judiciary.”

19
The Hearing Panel gave insufficient consideration to Judge

Coomer’s due process argument. The Georgia Constitution explicitly

provides that “[n]o action shall be taken against a judge except after

hearing and in accordance with due process of law.” Ga. Const. of

1983, Art. VI, Sec. VII, Par. VIII. Based on this provision, this Court

has said the JQC’s authority to enforce the Code “is not . . .

unlimited, inasmuch as the Constitution requires the Commission

to afford due process to judges and provides for this Court to review

the imposition of discipline.” In re Judicial Qualifications Comm’n

Formal Advisory Opinion No. 239, 300 Ga. 291, 294 (1) (b) n.6 (794

SE2d 631) (2016). Indeed, this Court relied on precisely this

constitutional provision in the very same decision the Hearing Panel

cited in its order denying Judge Coomer’s motion to dismiss: we said

“[t]he gravity of the [judicial discipline] proceeding requires that it

be fundamentally fair and in keeping with the basic requirements of

due process.” Matter of Inquiry Concerning a Judge, 265 Ga. at 848

20
(4).3

But we need not resolve here whether disciplining a judge for

actions committed prior to him becoming a judge or judicial

candidate would violate that judge’s due process rights. Regardless

of whether due process would place such a limit on the JQC’s power,

the JQC can investigate and try only violations of the Code of

Judicial Conduct. And the Code of Judicial Conduct does not extend

to pre-judicial conduct. 4

(b) The text of the Code of Judicial Conduct makes clear that
it does not reach conduct of those who are neither judges nor judicial
candidates.

Federal due process requirements also apply. See S&S Towing &
3

Recovery, Ltd. v. Charnota, 309 Ga. 117, 120 (1) (844 SE2d 730) (2020)
(Principles of due process embodied in the Fourteenth Amendment “extend to
every proceeding, whether judicial or administrative or executive in its nature,
at which a party may be deprived of life, liberty, or property.” (citation and
punctuation omitted)); Collins v. Morris, 263 Ga. 734, 735-736 (1) (438 SE2d
896) (1994) (elected officials have a property interest in their office that can be
taken from them “only by procedures meeting the requirements of due
process”) (quoting City of Ludowici v. Stapleton, 258 Ga. 868, 869 (1) (375 SE2d
855) (1989)). And fair notice of what conduct is prohibited is a key component
of due process. See Baker v. State, 280 Ga. 822, 823 (2) (633 SE2d 541) (2006).
4 To be clear, we are not talking about situations in which a judge is

indicted or convicted for conduct occurring before the judge became a judge.
Specific procedures in that event are set forth in Article VI, Section VII,
Paragraph VII, subsections (b) and (c) of the Georgia Constitution.
21
“[T]he authority to prescribe . . . particularized standards for

judicial conduct belongs to this Court as an incident of the judicial

power, an authority that we have exercised by our adoption of the

Code of Judicial Conduct.” In re Judicial Qualifications Comm’n

Formal Advisory Opinion No. 239, 300 Ga. at 294-295 (1) (b)

(citation and footnote omitted). The Code repeatedly makes clear

that it governs the conduct of only judges and “judicial candidates,”

a defined term that includes persons applying for judicial

appointments, as well as elected candidates and announced

appointees waiting to be sworn in. 5 The Preamble to the Code states

that the Code “establishes standards for ethical conduct of judges

and judicial candidates.” Language in the Code outlining its

“[s]cope” specifies that its canons and rules “are intended to govern

5 A change to the rules clarifying that “[a] person who is announced as
the appointee to fill a judicial position by the Governor . . . continues to be a
judicial candidate until he or she is sworn into office” did not take effect until
November 1, 2018. But the earlier version of the rules nonetheless led to the
same result here. After all, the Code unambiguously applied to judicial
candidates, and a candidate for appointment remains a candidate until
actually appointed. Merely being announced as the intended appointee is not
the same as an actual appointment; Judge Coomer did not cease being a
candidate for appointment until his appointment was signed, which happened
the same day he was sworn in, October 31, 2018.
22
conduct of judges and judicial candidates, and in certain

circumstances to be binding upon them.” Code, Scope [6]. And in

another introductory section outlining the “[a]pplication” of the

Code, the Code says that “[a]ll judges, whether full-time, part-time,

or pro tempore, shall comply with this Code” except as otherwise

provided. That over-arching declaration regarding the breadth of

the Code’s application specifies that “[a]nyone, whether or not a

lawyer, who performs judicial functions under the Constitution and

laws of Georgia, including an associate judge, senior judge, special

master, magistrate, or municipal judge, or any person who is a

judicial candidate for any such office, is a judge for the purpose of

this Code.” Code, Application.

This reading of the plain language of the Code as governing the

conduct of only judges and judicial candidates is bolstered by the fact

that even for a person clearly governed by the Code, some of its

provisions do not apply, or do not apply immediately upon that

person coming within the Code’s reach. Part-time judges and judges

pro tempore are permitted to engage in the private practice of law,

23
and thus are not required to comply with certain rules in certain

contexts. See Code, Application (A)-(B). In defining the term

“judicial candidate,” the Code provides that “[j]udicial candidates

who do not currently hold judicial office are subject to the same Code

provisions as judges pro tempore.” Code, Terminology. 6 The Code

also provides that certain rules, like those governing fiduciary

activities and personal and family financial activities, must be

complied with only “as soon as reasonably possible and . . . in any

event within the period of one year from commencing service as a

judge.” Code, Application (C). All this makes clear that the rules do

not govern conduct occurring prior to becoming a judge or judicial

candidate, as they do not in every event apply even to new judges.

In context, it is clear that this language means not just that the

Code governs only judges and judicial candidates, but also that it

governs only those actions taken while a person is a judge or judicial

candidate. The above-cited provision about the obligations of new

6 This language was added to the Code effective November 1, 2018, the
day after Judge Coomer was sworn in as a Court of Appeals judge.
24
judges makes this particularly clear. It says “[a] person to whom this

Code becomes applicable” — i.e., someone who becomes a judge or

judicial candidate — “shall comply immediately” with most of the

rules, but allows a grace period for complying with certain other

rules. Code, Application (C). The necessary implication of that

language is that the Code does not require someone to “comply” with

any of its rules before they become a judge or judicial candidate. If

it did, there would be no need to specify when a person must start

complying because all of the person’s conduct would be retroactively

swept into the Code’s reach upon that person becoming a judge or

judicial candidate. And in addressing the Code’s reach after a person

has left judicial office, the Code provides that “the appropriate

authority for judicial discipline shall have continuing jurisdiction

over individuals to whom this Code is applicable regarding

allegations of misconduct occurring during the individual’s service

as a judge, judicial candidate, or an officer of a judicial system, if a

complaint is filed no later than one year following that service.”

Code, Application (D) (emphasis supplied). This, too, leads to a

25
conclusion that when the Code says its canons and rules “are

intended to govern conduct of judges and judicial candidates,” Code,

Scope [6], it is referring to conduct undertaken while someone is a

judge or a judicial candidate.

Moreover, the JQC previously articulated that understanding.

At some point prior to March 2018, the Investigative Panel

recommended pursuant to JQC Rule 28 (B) that the Hearing Panel

issue an opinion on whether the Code of Judicial Conduct applied to

conduct by a non-judge before that person becomes a judicial

candidate. In June 2018, the Hearing Panel submitted to this Court

for approval a Formal Advisory Opinion to the effect that “conduct

by a non-judge before that person becomes a judicial candidate . . . .

is not governed by the Code.” 7 See Case No. S18Z1356, In re JQC

Formal Advisory Opinion No. 242. Reviewing some of the same

language from the Code set forth above, the Hearing Panel’s

proposed FAO concluded:

What . . . the Code makes clear is that someone who is not
yet a judicial candidate — and not already a judge — is

7 Attached as Appendix 1.
26
not governed by the provisions of the Code. Consequently,
the Investigative Panel is without jurisdiction to consider
complaints that are limited to allegations of misconduct
that occurred before a non-judge becomes a judicial
candidate. While such allegations may well be fodder for
campaign material, they do not fall within the
Commission’s purview.

Later in 2018, the Investigative Panel proposed various

amendments to the Code and the JQC Rules, again appearing to

recognize that the Code itself did not reach misconduct occurring

before a person becomes a judge or judicial candidate. 8 Among the

Investigative Panel’s proposals were requests that the language

about the JQC’s ongoing reach after a person left judicial office be

amended to the effect that the Code is applicable to “allegations that

the individual engaged in conduct prior to service as a judge that

impairs the individual’s current ability to carry out judicial

responsibilities with integrity, impartiality, and competence[.]” The

Investigative Panel also proposed adding commentary to Rule 1.2 of

the Code that “[o]n rare occasions, violations of the Code may be

based on conduct occurring before the individual became a judge.”

8 Attached as Appendix 2.
27
In proposing these amendments, the Investigative Panel explained

that the Code and JQC Rules “are at odds regarding jurisdiction over

misconduct that occurs before an individual becomes a judge or

judicial candidate.” The Investigative Panel said the proposed

amendments would “clarif[y] what type of conduct — prior to a judge

assuming the bench — the Commission may look to as a potential

violation of the Code” and differentiate between the prior

misconduct of judges and the prior misconduct by a judicial

candidate who never becomes a judge.

But the Court did not approve those proposed amendments to

the Code. The Court did approve some of the other revisions to the

Code requested by the Investigative Panel in that memo, specifically

clarifying that announced appointees or election winners awaiting

swearing-in are considered “judicial candidates” and that judicial

candidates are subject to the same Code provisions as judges pro

tempore. But none of those approved amendments extended the

Code’s reach to conduct occurring before the individual became a

28
judge. Even so, the JQC ultimately withdrew the proposed FAO. 9

The JQC takes the position that the FAO became “moot” due to

amendments to the Code and JQC Rules approved by this Court on

November 1, 2018. But an amendment to the JQC Rules cannot alter

the application of the Code itself. And the November 2018

amendments to the Code — which clarified the definition of the term

“judicial candidate” and specified that judicial candidates who do not

hold judicial office are subject to the same Code provisions as judges

pro tempore — in no way undermined the FAO’s conclusion that the

9 We note that, after filing his exceptions to the Hearing Panel’s Report
and Recommendation, Judge Coomer filed a supplemental brief raising for the
first time the FAO and asking us to treat it as persuasive authority. We were
already aware of the FAO, and afford it only the treatment reflected in this
opinion. In response to Judge Coomer’s supplemental brief raising the FAO,
the JQC submitted a filing stating that although it does not know exactly when
the FAO was withdrawn, records indicate the JQC withdrew it before January
1, 2019. We note that the JQC Rules do not appear to authorize the JQC
unilaterally to withdraw a formal advisory opinion once the process for review
by this Court has been completed, see JQC Rule 28 (B), so its purported
unilateral withdrawal may have been ineffective until this Court’s September
2020 order reflecting that the FAO was “withdrawn as moot[.]” And the rules
do provide that when this Court declines to review a formal advisory opinion,
it becomes “binding . . . on the Commission and the person who requested the
opinion[.]” JQC Rule 28 (B) (4). Regarding the FAO at issue here, it is the JQC’s
Investigative Panel that requested the opinion — indicating that the position
taken in the opinion became binding on the JQC generally and the
Investigative Panel specifically. To be clear, none of our analysis today depends
in any way on whatever effect the FAO might have had.
29
Code does not apply to pre-judicial conduct.

In summary, the Hearing Panel determined that the Code of

Judicial Conduct did not apply to persons not yet judges or judicial

candidates, and the Investigative Panel asked this Court to change

the Code to make it apply to pre-judicial conduct. This Court

declined. And instead of accepting that fact, the JQC’s response was

apparently to withdraw the Hearing Panel’s determination and

proceed as if it had never happened, which ultimately resulted in

bringing charges against Judge Coomer based on actions he took

before he became a judicial candidate. When Judge Coomer

protested by filing a motion to dismiss, the Hearing Panel denied

the motion in an order that did not so much as grapple with the text

of the Code — let alone acknowledge or explain the JQC’s shifting

interpretation. Rather, the Hearing Panel relied on the JQC’s own

Rules, which say that the JQC “has jurisdiction over judges

regarding allegations that misconduct occurred before or during

service as a judge and regarding allegations of incapacity during

service as a judge.” JQC Rule 2 (B) (1) (emphasis supplied). The

30
Hearing Panel concluded that this JQC Rule “comports with the

Georgia Constitution” and is supported by “[t]he fundamental

objectives of judicial disciplinary proceedings[.]”

Relying on the constitutional provision that “[a]ny judge may

be . . . disciplined . . . for conduct prejudicial to the administration of

justice which brings the judicial office in disrepute,” the Hearing

Panel concluded that “[t]he Georgia Constitution thus affords the

JQC jurisdiction over a judge’s pre-judicial conduct to the extent

such conduct is ‘prejudicial to the administration of justice which

brings the judicial office into disrepute.’” But the question of

whether the JQC’s authority to investigate, try, and recommend

disciplinary sanctions based on pre-judicial conduct is constrained

by the text of the Constitution does not arise here, and we express

no opinion on it. The JQC Rules are procedural rules and rules for

the JQC’s governance; they do not — and cannot — say what conduct

is actually proscribed, and for whom. 10 The Code of Judicial Conduct

10 The statute regarding JQC Rules states that they shall be promulgated
by the JQC’s Investigative Panel and effective only upon review and adoption

31
does that, and this Court alone has the power to promulgate the

Code. See In re Judicial Qualifications Comm’n Formal Advisory

Op. No. 239, 300 Ga. at 294 (1); Judicial Qualifications Comm’n v.

Lowenstein, 252 Ga. 432, 433-434 (1) (314 SE2d 107) (1984). So to

say that the JQC has “jurisdiction over a judge’s pre-judicial

conduct” — even if true as a matter of Georgia constitutional law,

which we do not decide — is like saying that the superior courts of

by this Court. See OCGA § 15-1-21 (j). This Court has previously said that the
authority for JQC rule promulgation is found in a provision of the Constitution
unchanged by recent amendments, Article VI, Section VII, Paragraph VII (a),
which says this Court “shall adopt rules of implementation” without any
requirement for JQC involvement. See In re Judicial Qualifications Comm’n
Formal Advisory Opinion No. 239, 300 Ga. at 295 n.9. Whether that
constitutional construction is correct (which would raise constitutional
questions about the statutory requirement for JQC promulgation of such
rules), or whether the constitutional language is more properly understood to
refer to this Court’s authority to promulgate the Code of Judicial Conduct
(which we have elsewhere said is not a function of any particular constitutional
text, but is instead an inherent power of this Court, see Judicial Qualifications
Com. v. Lowenstein, 252 Ga. 432, 433-434 (1) (314 SE2d 107) (1984)), is not an
issue we need decide today. What is clear from the pertinent statute is that the
rules shall be “for the commission’s governance.” OCGA § 15-1-21 (j). The
Constitution empowers the General Assembly to legislate on that subject in
similar text: “The General Assembly shall by general law create and provide
for the composition, manner of appointment, and governance of a Judicial
Qualifications Commission . . . .” Ga. Const. of 1983, Art VI, Sec. VII, Par. VI
(a). Neither the statute nor the Constitution supports the idea that the JQC
Rules can do more than govern the JQC’s own internal practices and
proceedings before the JQC. Accord Ga. Const. of 1983, Art VI, Sec. VII, Par.
VI (b) (“The procedures of the Judicial Qualifications Commission shall
comport with due process.”).
32
this state “have exclusive jurisdiction over trials in felony cases.”

The latter statement is, of course, absolutely true. See Ga. Const. of

1983, Art. VI, Sec. IV, Par. I. But that does not answer the question

of what constitutes a “felony” that can be tried in superior court.

Only Georgia criminal statutes answer that question. Here, by

analogy, only the Code answers the question of whether conduct

before a person became a judge or judicial candidate may subject

that person to judicial discipline under the authority of this Court

and the JQC. And, as explained above, the Code plainly answers

that question in the negative.

5. We reject Judge Coomer’s other arguments as to the JQC’s
authority over his conduct even after he became a judicial candidate.

(a) The Code of Judicial Conduct’s application to judicial
candidates extends beyond their activity in “campaigning and
politics relating to judicial positions.”

To be clear, we would not go as far as Judge Coomer urges in

drawing the limits of the JQC’s reach. Judge Coomer argues that

the reach of the Code to “judicial candidates” is quite limited. He has

argued that “whereas the JQC has jurisdiction over judicial

33
candidates, it is confined to their activity in campaigning and

politics relating to judicial positions.” But this finds no support in

the text of the Code, which, again, specifies that “[a]nyone . . . who

performs judicial functions under the Constitution and laws of

Georgia, including . . . any person who is a judicial candidate for any

such office, is a judge for purposes of this Code.” Code, Application

(emphasis supplied). This language was cabined somewhat in an

amendment to the definition of “judicial candidate” in the Code,

effective November 1, 2018, specifying that judicial candidates who

do not yet hold judicial office are subject only to the more limited

constraints on judges pro tempore. But this language was not

effective until the day after Judge Coomer was formally appointed

and sworn in and thus ceased to be a “judicial candidate.” Therefore,

during the time that Judge Coomer was a judicial candidate, the

general language that “any person who is a candidate” for a judicial

office “is a judge” for purposes of the Code controlled. And even

under the more limited definition of “judicial candidate” in the

current Code, a judicial candidate is not exempt from any of the

34
provisions of the Code at issue in this matter — Rules 1.1, 1.2 (A),

and 4.2 (B). Rather, judicial candidates are now exempt only from

Rules 3.4 (extra-judicial appointments), 3.8 (fiduciary activities), 3.9

(arbitration and mediation), 3.10 (practice of law), 3.11 (financial

activities), and 3.15 (A) (1) (annual financial reporting of extra-

judicial compensation). See Code, Application (B) (1). In short, when

Rule 1.1 provides that, “Judges shall respect and comply with the

law,” and Rule 1.2 (A) provides that, “Judges shall act at all times

in a manner that promotes public confidence in the independence,

integrity, and impartiality of the judiciary,” “Judges” is understood

to include “judicial candidates” — and it was so understood when

Judge Coomer was seeking appointments in 2018.

(b) Investigating a judge for conduct that occurred while he
was simultaneously a judicial candidate and a member of the
General Assembly does not violate constitutional separation of
powers principles.

Judge Coomer also argues that investigating him for conduct

that occurred while he was a judicial candidate but also still a

member of the General Assembly would violate separation of powers

35
principles, because the General Assembly has the authority to

regulate the conduct of its members. The Georgia Constitution is

“clear that one branch cannot subsume another’s territory: ‘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.’” Ga. Dept. of Human Svcs. v. Steiner, 303

Ga. 890, 904 (V) (815 SE2d 883) (2018) (quoting Ga. Const. of 1983,

Art. I, Sec. II, Par. III). And Judge Coomer cites the Georgia

Constitution’s direction that each house of the General Assembly

“shall be the judge of the election, returns, and qualifications of its

members and shall have power to punish them for disorderly

behavior or misconduct by censure, fine, imprisonment, or

explusion[.]” Ga. Const. of 1983, Art. III, Sec. IV, Par. VII. But by its

own terms, this language does not give the General Assembly

exclusive power to discipline its members; indeed, that notion would

suggest that the members of the General Assembly are immune

from criminal prosecution for all crimes at all times, not merely the

36
misdemeanor-arrests-during-session from which the Georgia

Constitution protects them. See Ga. Const. of 1983, Art. III, Sec. IV,

Par. IX (“The members of both houses shall be free from arrest

during sessions of the General Assembly, or committee meetings

thereof, and in going thereto or returning therefrom, except for

treason, felony, or breach of the peace.”). In any event, the JQC’s

investigation here does not interfere with or subsume the legislative

branch’s authority. It certainly did not involve the investigation of a

sitting legislator and thus in no way interfered with the General

Assembly’s ability to discipline its members. And at the time the

JQC initiated its investigation, Judge Coomer was no longer a

member of the General Assembly and was instead a sitting judge.

The Constitution sets forth in general terms the conduct for

which a judge may be disciplined, and the Code sets forth the

particularized standards. As we make abundantly clear today, the

Code, by its terms, applies to judges and judicial candidates. So once

Judge Coomer became a judicial candidate, he was required to abide

by that Code, even if he was also a legislator for some portion of that

37
time. This does not violate separation of powers principles.

(c) The JQC’s authority includes conduct by judges and
judicial candidates that may also fall within the purview of another
government agency.

There is also no merit to Judge Coomer’s argument that the

JQC lacks authority to discipline Judge Coomer for actions as a

judge or judicial candidate merely because another government

agency, whether it be the State Bar of Georgia (as an arm of this

Court) or the CFC, has concurrent authority to investigate alleged

misconduct. An attorney who becomes a judicial candidate may

continue to practice law during his candidacy. See Code,

“Terminology” — “Judicial candidate”; Application, Part B, cmt. 2.

But seeking a judicial office does not absolve that attorney from his

obligations under the Georgia Rules of Professional Conduct.

Similarly, as Judge Coomer concedes, the CFC is charged with

ensuring compliance with campaign finance requirements

applicable to all constitutional offices, including judicial ones. See

OCGA §§ 21-5-6 (b) (prescribing duties of CFC, including duties to

investigate financial disclosure reports), 21-5-50 (generally

38
prescribing duties of public officers and candidates for elected public

office to file financial disclosures). Nothing about this statutory

scheme strips the JQC of its constitutional authority to investigate

judges for misconduct, including for actions taken as a judicial

candidate. Judges and judicial candidates must respect and comply

with the law, including that governing campaign finance. See Code,

Rule 1.1.

Judge Coomer also argues that these proceedings should have

been stayed as a prudential matter while the investigations by the

CFC and State Bar were pending. There may be circumstances in

which the JQC might consider such abstention appropriate, and we

do not suggest that it lacks that discretion. But it did not choose to

abstain in this matter, and Judge Coomer offers no reason for us to

second-guess the JQC’s choice, much less substitute our own

judgment at this late date. Indeed, given that Judge Coomer’s

interim suspension with pay has remained in place for more than

two years pending a final resolution of the JQC proceedings,

prudence counsels resolving this matter with alacrity and dispatch.

39
6. The Hearing Panel applied the wrong standard for
determining whether a judge may be disciplined under our
Constitution.

We turn now from the scope of the Code of Judicial Conduct to

the grounds for discipline authorized by the Constitution. As we

alluded to above, the Georgia Constitution sets out five grounds for

discipline: discipline “for willful misconduct in office, or for willful

and persistent failure to perform the duties of office, or for habitual

intemperance, or for conviction of a crime involving moral turpitude,

or for conduct prejudicial to the administration of justice which

brings the judicial office into disrepute.” Ga. Const. Art. VI, Sec. VII,

Par. VII (a).11 The Amended Formal Charges alleged that discipline

11 This constitutional provision did not include “conviction for a crime
involving moral turpitude” among the bases for discipline of judges until the
1983 Constitution. See Ga. Const. of 1976, Art. VI, Sec. XIII, Par. III (b); 1982
Ga. Laws pp. 2551, 2553, § 3; 1983 Ga. Laws p. 2070. Interestingly, the official
committee to revise Article VI at the 1983 Constitutional Convention
recommended that the phrase “conduct prejudicial to the administration of
justice which brings the judicial office into disrepute” be removed from the
provision, suggesting the substitution of “conviction of a crime involving moral
turpitude” as more definite language. See Committee to Revise Article VI, Full
Committee Meeting, August 8, 1980, at pp. 213-216; Full Committee Meeting,
August 22, 1980, at pp. 89-91. Although that version lacking the “conduct
prejudicial” clause initially was approved by the General Assembly, see 1981
Ga. Laws. (Extraordinary Session), pp. 143, 182-183, the version ultimately

40
was appropriate under only two of these categories, asserting

generally that Judge Coomer’s conduct constitutes “willful

misconduct in office and is prejudicial to the administration of

justice, bringing the office of Judge on the Georgia Court of Appeals

into disrepute.” In recommending that Judge Coomer be removed

from office, the Hearing Panel concluded that Judge Coomer had

engaged in willful misconduct in office by conduct charged in a

handful of counts alleging conduct that occurred while Judge

Coomer was a judge, albeit not actions taken in a judicial capacity.

And it found that Judge Coomer had engaged in conduct prejudicial

to the administration of justice in conduct charged under all of the

counts that the Hearing Panel found had been proved.

submitted to, and approved by, Georgia voters, included both phrases. See
1982 Ga. Laws pp. 2551, 2553, § 3; 1983 Ga. Laws p. 2070.
The 1945 Constitution does not appear to have initially provided for
discipline of judges at all. See generally Ga. Const. of 1945, Article VI. But a
1972 amendment to that Constitution created the JQC, with authority to
investigate complaints about judges’ “willful misconduct in office, or willful and
persistent failure to perform his duties, or habitual intemperance, or for
conduct prejudicial to the administration of justice which brings the judicial
office into disrepute.” 1972 Ga. Laws pp. 1364-1367, 1973 Ga. Laws p. 1755;
see also Fortson v. Weeks, 232 Ga. 472, 490-491 (208 SE2d 68) (1974) (Hall, J.,
concurring).
41
While “willful misconduct in office” and “conduct prejudicial to

the administration of justice” may seem very broad, our case law

shows otherwise. As one might imagine with legal text of such age

and significance, we have explained what those grounds mean:

We interpret “willful misconduct in office” to mean actions
taken in bad faith by the judge acting in her judicial
capacity. “Conduct prejudicial to the administration of
justice” refers to inappropriate actions taken in good faith
by the judge acting in her judicial capacity, but which may
appear to be unjudicial and harmful to the public’s esteem
of the judiciary. Prejudicial conduct may also refer to
actions taken in bad faith by a judge acting outside her
judicial capacity.

Matter of Inquiry Concerning a Judge No. 94-70, 265 Ga. 326, 327-

328 (1) (454 SE2d 780) (1995); see also, e.g., In re Judicial

Qualifications Comm’n Formal Advisory Op. No. 239, 300 Ga. at 297

(2) (citing Matter of Inquiry Concerning a Judge No. 94-70 for the

proposition that “[a] knowing and willful misapplication of the law,

. . . would amount to bad faith and thereby implicate the Code of

Judicial Conduct”); Leitch v. Fleming, 291 Ga. 669, 674 (3) (732 SE2d

401) (2012) (citing Matter of Inquiry Concerning a Judge No. 94-70

for the proposition that willful misconduct means actions taken in

42
bad faith by a judge acting in her judicial capacity); In re Inquiry

Concerning Judge Robertson, 277 Ga. 831, 834 (3) (596 SE2d 2)

(2004) (“Prejudicial conduct refers to actions taken in bad faith by a

judge acting outside of his or her judicial capacity. Whether

discipline should be imposed and the severity of discipline depends,

in part, upon the effect of the improper activity on the judicial

system.”); Matter of Inquiry Concerning a Judge, 265 Ga. at 849

(citing Matter of Inquiry Concerning a Judge No. 94-70 for the

proposition that “blatant disregard for the law” is bad faith). 12

12 Judge Coomer’s counsel appeared to suggest to the Hearing Panel that
Paragraph VII (a) of Article VI, Section VII was amended in 2016. But the 2016
amendments did not alter Section VII, Paragraph VII, subparagraph (a) of
Article VI, setting forth the grounds on which judges may be removed or
otherwise disciplined. See 2016 Ga. Laws, p. 896, § 2. The language that now
comprises subparagraph (a) has not been altered since voters approved the
1983 Constitution.
We also note that the case interpreting this language did so in the
context of analyzing language in a JQC Rule. See Matter of Inquiry Concerning
a Judge No. 94-70, 265 Ga. at 327 (1). Both then and now, the JQC Rules
included a rule itemizing the permissible grounds for discipline. Those grounds
as they appear in the various rules were and are materially identical to the
constitutional language. Compare JQC Rule 6 (A) (providing that “the grounds
for discipline are: (1) willful misconduct in office; (2) willful and persistent
failure to perform the duties of office; (3) habitual intemperance; (4) conviction
of a crime involving moral turpitude; and (5) conduct prejudicial to the
administration of justice which brings the judicial office into disrepute”); with
former JQC Rule 4 (b) (providing for discipline where judge engaged in “willful

43
In other words, “willful misconduct in office” applies only to

actions taken in bad faith and in a judicial capacity. And “judicial

capacity” is a familiar phrase that means actions taken not merely

during the term of service as a judge, but actions taken actually as

a judge exercising judicial power. See, e.g., Heiskell v. Roberts, 295

Ga. 795, 800-801 (3) (764 SE2d 368) (2014) (“Judges are ‘immune

from liability in civil actions for acts performed in their judicial

capacity.’” (quoting Earl v. Mills, 275 Ga. 503, 504 (570 SE2d 282)

(2002)); compare Heiskell, 295 Ga. at 801 (“a judge is not immune

from liability for nonjudicial actions, i.e., actions not taken in the

judge’s judicial capacity”) (quoting Mireles v. Waco, 502 U.S. 9, 11-

12 (112 SCt 286, 116 LE2d 9) (1991) (punctuation omitted)).

None of the counts against Judge Coomer allege anything

about actions he took in a judicial capacity. Accordingly, none of

those counts permit discipline on the ground that his conduct

misconduct in office, or willful and persistent failure to perform the duties of a
judge, or habitual intemperance, or conduct prejudicial to the administration
of justice which brings the judicial office into disrepute.”)

44
amounted to “willful misconduct in office.” And none of those counts

would permit discipline for “conduct prejudicial to the

administration of justice,” absent a finding of bad faith.

The only cited constitutional basis for discipline that might

apply here is the sub-category of “conduct prejudicial to the

administration of justice,” to the extent that it involves “actions

taken in bad faith by a judge acting outside [his] judicial capacity.”

Matter of Inquiry Concerning a Judge No. 94-70, 265 Ga. at 328 (1).

And plainly, to qualify as “actions taken in bad faith,” an action must

involve something more than negligence. See State v. Bryant, 307

Ga. 850, 854 (2) (838 SE2d 855) (2020) (“Inherent in the concept of

bad faith is something more than negligence.”); see also Greenway v.

Hamilton, 280 Ga. 652, 655 (3) (631 SE2d 689) (2006) (noting in

attorney fee context that “[b]ad faith is not simply bad judgment or

negligence, but a breach of known duty through some motive of

interest or ill will” (punctuation and citation omitted)); see also

Wachovia Bank of Ga., N.A. v. Namik, 275 Ga. App. 229, 234 (3) (b)

(620 SE2d 470) (2005) (“Bad faith is not simply bad judgment or

45
negligence, but it imports a dishonest purpose or some moral

obliquity, and implies conscious doing of wrong, and means breach

of known duty through some motive of interest or ill will.” (footnote

and punctuation omitted)).

The Hearing Panel’s Report and Recommendation is

ambiguous as to whether the Panel found that Judge Coomer had

acted in bad faith in committing any of the proved violations. The

Director argued in closing that, “at a minimum, [Judge Coomer] is

so negligent in knowing the law” that the public cannot trust him to

sit on the Court of Appeals. The Hearing Panel apparently was

persuaded by this argument, offering an explanation for its

recommendation of removal that contemplated that Judge Coomer’s

ignorance of that law may itself be a basis to remove him:

[Judge Coomer]’s long and unbroken pattern of violating
multiple attorney ethics rules and campaign finance laws
to his own financial benefit not only erodes the public’s
confidence in the judiciary but, just as importantly, falls
far short of the high standards of behavior justifiably
expected of all judges. [Judge Coomer] either knowingly
violated these rules and laws — and didn’t care — or he
lacked basic knowledge of the ethical and professional
responsibilities of his important position as attorney,

46
counselor, and, ultimately, judge. Neither option —
violator or uninformed — is acceptable[,] and neither
instills confidence in the judiciary. And in this case, there
are too many examples of both.

As to Judge Coomer’s dealings with Filhart, the Hearing Panel

found that Judge Coomer’s “conduct establishes a plain pattern of

flouting (or not knowing) the law[.]” As to the campaign finance

counts, the Hearing Panel concluded that “[a]gain and again, pre-

judgeship and after taking the bench, [Judge Coomer] has ignored

(or been ignorant of) critical legal and ethical restrictions on the use

of campaign funds.” The Hearing Panel concluded generally that

parties and their lawyers appearing before Judge Coomer at the

Court of Appeals “would have little reason to be confident in [Judge

Coomer]’s ability to fairly and competently interpret and apply the

law” in various areas of the law that have arisen in these

proceedings. These conclusions suggest that the Hearing Panel

recommended removal despite leaving open the possibility that

Judge Coomer may have simply been ignorant of the rules and laws

that the Hearing Panel found he violated — in other words, without

finding that the relevant actions were taken in bad faith.
47
If this were the full extent of the Hearing Panel’s conclusions,

we might be compelled to impose no discipline at all; findings that

Judge Coomer may well have been merely negligent are not findings

of bad faith by clear and convincing evidence. But the Hearing Panel

also states that Judge Coomer “exploited” both Filhart and the

“unique and fragile position of trust that attorneys and judges

enjoy.” That word — “exploited” — suggests intentional action.

Moreover, the Report and Recommendation suggested that Judge

Coomer’s introduction of character evidence may have backfired,

undermining the notion that he acted out of an ignorance of the law:

[F]rom the character witnesses [Judge Coomer] called to
testify comes another powerful lesson: they — in
particular his superior officer, Colonel [Lorraine M.]
Mink, from the United States Air Force’s Judge Advocate
General Corps — saw in [Judge Coomer] a smart, capable
leader who excelled in all that he did. Accepting this
assessment as true, the Hearing Panel is left to conclude
that [Judge Coomer], deemed to be in the top one percent
of officers Colonel Mink had ever met, knew exactly what
he was doing when he [acted in the manner alleged in the
various counts].

In context, we cannot determine whether this is a bright-line

factual finding that every violation of law and rules by Judge

48
Coomer was done knowingly, or whether it is merely a final

rhetorical flourish. It certainly is at odds with other statements in

the Report and Recommendation suggesting that the Hearing Panel

is uncertain that Judge Coomer knowingly violated the various rules

at issue, especially the statement that “there are too many examples

of both [violator or uninformed].” And that difference matters a

great deal. Knowing violation of the law would likely satisfy bad

faith; mere negligence plainly would not.

7. Conclusion.

In sum, the Hearing Panel made two critical errors of law. It

erroneously determined that Judge Coomer’s conduct before he

became a judicial candidate was the proper subject of discipline. And

it erroneously determined that negligent conduct outside the

judicial capacity could warrant discipline, when our case law makes

clear that conduct outside the judicial capacity must be done with

bad faith to warrant discipline.

Those errors require us to end where we began — with the

standard of review. As we said at the outset, in determining whether

49
to accept the Hearing Panel’s recommendation, we review legal

determinations de novo but we defer to factual findings. Intent was

a matter of enormous dispute in this matter, and this Court is not

well positioned to resolve the factual questions of intent that are

crucial to determining whether discipline is constitutionally

permitted. The Hearing Panel heard dozens of hours of testimony

related to that topic and observed the people offering that testimony;

the Hearing Panel — not this Court — is best positioned to resolve

those questions. We therefore must remand for the Hearing Panel

to engage in that work.

The Hearing Panel is directed to issue new findings that (1)

determine which counts against Judge Coomer that were proved by

clear and convincing evidence are properly within the scope of the

Code of Judicial Conduct; (2) clearly articulate which counts, if any,

may support discipline within the constitutional framework as

articulated in this opinion, with particular attention toward

whether the Director proved bad faith for any of those counts; and

(3) reconsider what, if any, discipline is appropriate based on the

50
revised findings. 13 The Hearing Panel is directed to file that new

Report and Recommendation with this Court within 60 days of the

date of this opinion. We leave it to the Hearing Panel to set a

schedule for obtaining briefing from the parties as to the questions

now before it.

Matter remanded with direction. All the Justices concur, except
Bethel, J., not participating, and Colvin, J., disqualified.

13 We also direct the Hearing Panel to use more precision in making
factual findings in support of its conclusions regarding whether the Director
has proved the various charges against Judge Coomer, particularly whether
Judge Coomer represented Filhart at the time of the conduct at issue in Counts
6 and 20 (if those counts are still determined to have been proved), and as to
which particular campaign expenditures Judge Coomer violated the law by
failing to disclose on his December 31, 2018 Campaign Contribution Disclosure
Report (again, if the count(s) involving that report are determined to have been
proved). We also direct the Panel to include complete record citations,
including citations to the final hearing transcript.
51
APPENDIX 1
Case S18Z1356 Filed 06/11/2018 Page 1 of 4

IN THE SUPREME COURT
STATE OF GEORGIA

)
)
In re: Formal Advisory Opinion 242 ) Case No. _
)
)
)

JOC Formal Advisory Opinion 242

The Judicial Qualifications Commission's ("Commission") Hearing Panel

respectfully submits the attached Formal Advisory Opinion (Exhibit A) to the

Court pursuant to Commission Rule 28(B)(4). The Commission's Investigative

Panel, invoking Commission Rule 28(B)(l), requested that the Hearing Panel issue

a formal advisory opinion. The Hearing Panel made a preliminary determination

that a proposed formal advisory opinion should be drafted on the issue presented

by the Investigative Panel. The Hearing Panel subsequently authored and then

published a proposed Formal Advisory Opinion 242 on the websites of the

Commission, the Administrative Office of the Courts, and the State Bar of Georgia

on 6 March 2018. Consistent with Commission Rule 28(B)(3), the Hearing Panel

invited public comments on proposed Formal Advisory Opinion 242 through 23

March 2018. After due consideration of those comments, the Hearing Panel made

minor changes to the proposed formal advisory opinion.
Case S18Z1356 Filed 06/11/2018 Page 2 of 4

The Hearing Panel now files Formal Advisory Opinion 242 with the Court

and will also publish it on the websites listed above. The Hearing Panel or any

person "aggrieved" by Formal Advisory Opinion 242 has twenty days from the

date of this filing to petition the Court for discretionary review.1 Commission Rule

28(8)(4). The Court may also review the opinion sua sponte. Id.

With this explanation, the Hearing Panel respectfully submits Formal

Advisory Opinion 242 to the Court.

This _}_L day of May, 2018.

Presiding Officer
Judicial Qualifications Commission He ring Panel

1
The Hearing Panel does not intend to seek discretionary review from the Court at this time.

2
Case S18Z1356 Filed 06/11/2018 Page 3 of 4

EXHIBIT A

JUDICIAL QUALIFICATIONS COMMISSION
ST A TE OF GEORGIA

FORMAL ADVISORY OPINION No. 242

Pursuant to Rule 28(B) of the Rules of the Judicial Qualifications

Commission (JQC), the Investigative Panel of the JQC has requested that the

Hearing Panel of the JQC issue an opinion on whether the Code of Judicial

Conduct, which governs both judges and judicial candidates (as defined in the

Code and discussed below), applies to conduct by a non-judge before that person

becomes a judicial candidate. This question appears not have been addressed in

any earlier JQC Advisory Opinion. For the reasons set forth below, the Hearing

Panel concludes that such conduct is not governed by the Code.

It is alleged that a candidate for judicial office in Georgia has engaged in

conduct arguably violative of the Code. However, it appears that the alleged

misconduct occurred before the individual became a judicial candidate. A

complaint concerning this conduct has been presented to the Investigative Panel.

The Code of Judicial Conduct applies to "[a]nyone ... who performs a

judicial function under the Constitution and laws of Georgia" as well as to "any

person who is a judicial candidate for any such office." Application, Code of

Judicial Conduct. A "judicial candidate" is any person "seeking selection for or
Case S18Z1356 Filed 06/11/2018 Page 4 of 4

retention in judicial office by election or appointment." Terminology, Code of

Judicial Conduct. One becomes such a candidate as soon as one

(i) appoints or forms a campaign committee, (ii) makes a public
announcement of candidacy, (iii) declares, files or qualifies as a
candidate with the election or appointment authority, or (iv)
authorizes solicitation or acceptance of contributions or support.

Id. Once the Code is applicable to an individual, that individual must immediately

comply with all of the Code's provision (except for Rules 3.8 and 3. l(B) - (F)).

Application, Section C.

What this examination of the Code makes clear is that someone who is not

yet a judicial candidate -- and not already a judge -- is not governed by the

provisions of the Code. Consequently, the Investigative Panel is without

jurisdiction to consider complaints that are limited to allegations of misconduct

that occurred before a non-judge became a judicial candidate. 1 While such

allegations may well be fodder for campaign material, they do not fall within the

Commission's purview.

1
This Opinion does not address the specific facts that gave rise to the complaint to the
Investigative Panel. They are, appropriately, not known to the Hearing Panel. It is for the
Investigative Panel to determine whether the individual in question, now purportedly a judicial
candidate, was a judicial candidate, as defined by the Code, when the complained-of behavior
occurred.
2
APPENDIX 2

315 Ga. 841
FINAL COPY

S21Z0595. INQUIRY CONCERNING JUDGE CHRISTIAN
COOMER.

PER CURIAM.

This long-delayed judicial discipline matter comes to us after a
full hearing and the Judicial Qualifications Commission (“JQC”)
Hearing Panel's recommendation to remove Judge Christian
Coomer from his seat on the Court of Appeals. We conclude that the
Hearing Panel made at least two critical legal errors that prevent us
from resolving the matter on this record. Accordingly, we remand for
the Hearing Panel to make new findings in the light of the law as it
actually exists, and to do so quickly.

1. = Introduction.

In late 2020, the JQC brought formal charges against Judge
Coomer. The charges, as later amended, comprise 36 counts alleging
that Judge Coomer violated three provisions of the Georgia Code of

Judicial Conduct (“the Code”), in several ways. First, he allegedly
violated several Georgia Rules of Professional Conduct in his
capacity as a lawyer in dealings with a client including allegations
of substantial “dishonesty, deceit, and misrepresentation.” Second,
he allegedly used campaign funds for impermissible purposes and
failed to disclose certain expenditures. And third, he allegedly
engaged in several transactions — both campaign-related and
personal — in which he declared a “fictitious” transfer to his
campaign account and misrepresented his liabilities and assets in a
mortgage application. Many of the allegations involved conduct that
occurred exclusively before Judge Coomer was a judge or judicial
candidate. A few days after formal charges were filed, Judge Coomer
was suspended from office pending resolution of this matter.

In 2021, the JQC Hearing Panel rejected Judge Coomer’s
arguments that the JQC lacked jurisdiction over conduct that
occurred before Judge Coomer was a judge or judicial candidate. And
in late 2022, nearly two years after the charges had been filed, the
JQC finally tried Judge Coomer in a hearing held over a three-

month period.
On January 30 of this year, the Hearing Panel submitted its
Report and Recommendation to this Court. The Hearing Panel
found that the Director failed to prove the counts alleging
dishonesty, deceit, misrepresentation, and fictitious transfers. But
the Hearing Panel found that the Director proved most of the
remaining counts, and that Judge Coomer’s violations were
committed either knowingly or in ignorance of the law, and that
neither option was acceptable. The Hearing Panel recommended
that we remove Judge Coomer from office.

In so doing, the JQC — both the Director and the Hearing
Panel — made two critical legal errors that prevent us from
resolving this matter now. First, both the Director and the Hearing
Panel determined that the JQC has “jurisdiction” over conduct that
occurs before a person becomes a judge or judicial candidate, and
thus could pursue counts against Judge Coomer regarding pre-
judicial conduct. That is wrong. The Code of Judicial Conduct plainly
applies only to conduct by judges and judicial candidates while they

are judges or judicial candidates — indeed, the JQC acknowledged
as much in two separate filings with this Court, not long before filing
formal charges against Judge Coomer. Inexplicably, however,
neither the Director's argument to the Hearing Panel nor the
Hearing Panel's conclusion even acknowledges the JQC’s previous
position; the Director’s only acknowledgment of that position came
after Judge Coomer raised the issue last week, and still fails to
engage with the relevant text. The Code of Judicial Conduct simply
has no application to conduct by people who are not yet judges or
judicial candidates, even if they later become a judge or judicial
candidate.

Second, both the Director and the Hearing Panel failed to
understand the circumstances in which the Constitution and our
case law permits judicial discipline. Longstanding precedent makes
clear that although actions taken in a judicial capacity — acting as
a judge, not merely while a judge — can warrant discipline
regardless of good faith, actions taken outside a judicial capacity can
warrant discipline only when taken in bad faith. None of the counts

against Judge Coomer allege any actions taken in a judicial capacity,
and so, in order to prevail on those counts, the Director would need
to prove bad faith by clear and convincing evidence. But the Director
instead argued that even mere negligence would warrant discipline,
without acknowledging our case law to the contrary. And the
Hearing Panel accepted that argument, recommending removal
based on an apparent assumption that it did not matter whether
Judge Coomer violated the law knowingly or in ignorance. But bad
faith requires more than ignorance, and because the Hearing Panel’s
report and recommendation was ambiguous as to whether it found
that Judge Coomer acted with bad faith, without clearer findings we
cannot determine what, if any, discipline is appropriate.

We are not in a position to make our own findings. The Hearing
Panel heard dozens of hours of live testimony — the hearing
transcript alone is more than 2,100 pages long — and determining
whether violations of the law were knowing and intentional or
merely negligent requires careful credibility determinations based
on personal observation. Only the Hearing Panel can make such

determinations. Accordingly, we remand the matter for the Panel to
do precisely that.

2. Background.

Judge Coomer was admitted to the State Bar of Georgia in
1999. After leaving active lawyer duty with the United States Air
Force’s Judge Advocate General's program in 2005, Judge Coomer
started his own private law practice in Cartersville. He also served
in the Georgia House of Representatives from 2011 until he joined
the Court of Appeals in 2018. He briefly served as a judge on the
Municipal Court of Adairsville in 2014. Before his appointment to
the Court of Appeals, Judge Coomer formally pursued two other
judicial vacancies. He applied for a vacancy on the Court of Appeals
on March 29, 2018, withdrawing from consideration the following
month. On August 30, 2018, Judge Coomer applied for a vacancy on
this Court, but on September 14, 2018, Governor Nathan Deal
announced his intention to appoint Judge Coomer to the Georgia
Court of Appeals. On October 31, 2018, Governor Deal appointed
Judge Coomer to the Court of Appeals and administered the oath of

office. Judge Coomer was elected to the Court of Appeals for a full

6
six-year term in 2020.

Also in 2018, the JQC grappled with the question of how — if
at all — the Code of Judicial Conduct applied to conduct by people
not yet judges or judicial candidates. As discussed in more detail
below in Division 4 (b), in June 2018 the JQC Hearing Panel
submitted for this Court's review a formal advisory opinion
concluding that the Code of Judicial Conduct’s text made clear that
it did not apply to conduct by those not yet judges or judicial
candidates. Later that year, the JQC Investigative Panel submitted
a request that this Court change the Code to apply to such pre-
judicial conduct. We did not approve the proposed changes. At some
point, the JQC withdrew the formal advisory opinion, a fact we
acknowledged by order in September 2020.

On December 28, 2020, the JQC filed formal charges against
Judge Coomer, alleging 26 counts of misconduct in violation of the
Code. The allegations largely dealt with Judge Coomer’s
representation of a client, James Filhart, while in private practice,

as well as dealings with Filhart after Judge Coomer became a judge
on the Court of Appeals. The formal charges also included
allegations regarding Judge Coomer’s campaign account and
allegations that he made misrepresentations in a March 2020
mortgage application.

The day after formal charges were filed, the Investigative
Panel filed a motion to suspend Judge Coomer pending the final
resolution of the JQC proceeding under JQC Rule 15 (C). But that
rule permits interim suspensions only upon “receipt of sufficient
evidence demonstrating that a judge poses a substantial threat of
serious harm to the public or to the administration of justice ... .”
The Investigative Panel did not offer any evidence at all, and so we
held the motion in abeyance to allow it to submit evidence. We also
rejected Judge Coomer’s initial attempt to consent to a suspension
because he did not admit even conditionally for purposes of a motion
to suspend that the standard for suspension had been met; the JQC
Rules do not permit a judge to consent to a suspension without

satisfying the evidentiary standard of Rule 15 (C). On January 5,

2021, the JQC filed a new motion to suspend, which included
averments that Judge Coomer consented to the motion, agreeing
only for purposes of the motion that the JQC could prove the
allegations against him, and further agreeing that the allegations in
the motion and the formal charges, if taken as true, warranted
suspension under the standard set forth in J]QC Rule 15 (C). This
Court granted this motion, suspending Judge Coomer with pay, per
JQC Rule 15 (C) and the Georgia Constitution’s requirement that
“{a]Jn incumbent's salary, allowance, or supplement shall not be
decreased during the incumbent’s term of office.” Ga. Const. of 1988,
Art. VI, Sec. VII, Par. V; see also generally DeKalb County School
Dist. v. Ga. State Bd. of Ed., 294 Ga. 349, 369 (4) (a) (751 SE2d 827)
(2013) (state and federal due process rights apply to constitutional
officers in context of suspension and removal).

On March 8, 2021, Judge Coomer sought dismissal of the
formal charges on the ground that the JQC lacked the power to
discipline him for conduct alleged to have occurred before he became
a judge or judicial candidate, or for conduct that the State Bar of

Georgia or the Georgia Government Transparency and Campaign

9
Finance Commission (“CFC”) were investigating. The Hearing Panel
denied the motion on December 16, 2021. On January 25, 2022,
Judge Coomer filed with this Court a petition for a writ of
mandamus, writ of prohibition, and stay of proceedings.! The
petition asked this Court to prohibit the JQC “from exercising
subject matter jurisdiction over allegations of conduct that occurred
prior to the time he became a judge and allegations of conduct that
occurred prior to the time he became a judicial candidate, mandat[e]
that the JQC dismiss and close the ongoing disciplinary inquiry
relating to such allegations” against Judge Coomer “as beyond the
subject matter jurisdiction granted to the JQC’ and “stay ... the
JQC inquiry and proceeding pending the Court's determination of
the threshold issue of subject matter jurisdiction.” Primarily on
procedural grounds, the Director opposed our exercise of jurisdiction

over Judge Coomer’s petition. On March 8, 2022, this Court

1 That petition was not an appeal from the Hearing Panel’s order; at the
time, no mechanism for appeal existed. Instead, that petition sought to invoke
our rarely-exercised original jurisdiction. On February 3, 2023, a new JQC
Rule 25 (B) (4) permitting interlocutory appeals became effective.

10
dismissed the petition, saying that the petition did not present one
of the extremely rare instances that warranted the Court exercising
its power to grant original relief. The dismissal order was clear that
it expressed no view on the merits of Judge Coomer’s arguments and
stated that the dismissal was without prejudice to Judge Coomer’s
right to assert such arguments in any future proceeding in this
Court.

Ten days later, the Director filed amended formal charges
against Judge Coomer, this time expanding the allegations to
include some additional counts related to alleged campaign finance
violations arising from trips he took to Israel in 2017 and Hawaii in
2018. All told, the amended formal charges included 36 counts. The
JQC charged that Judge Coomer violated three provisions of the
Code: Rule 1.1 (Judges shall respect and comply with the law.”);
Rule 1.2 (A) (Judges shall act at all times in a manner that
promotes public confidence in the independence, integrity, and
impartiality of the judiciary.’); and Rule 4.2 (B) (‘Judicial
candidates, including incumbent judges, shall not use or permit the

11
use of campaign contributions for the private benefit of themselves
or members of their families.”).

A formal hearing on the amended charges was held on October
17-21, November 9, and December 21-22, 2022. On January 30,
2023, the Hearing Panel filed with this Court a Report and
Recommendation recommending that Judge Coomer be removed
from his position on the Court of Appeals. The Hearing Panel found
that the Director had proved all but seven of the counts against
Judge Coomer by clear and convincing evidence.?

On February 21, 2023, Judge Coomer timely filed a Notice of
Exceptions to the Hearing Panel’s Report and Recommendation. See
JQC Rule 24 (F). Disagreeing with many of the Hearing Panel's
factual and legal conclusions, Judge Coomer argues that the
Director failed to carry the burden to show by clear and convincing
evidence that Judge Coomer should be removed from office. Judge

Coomer requests that the Court, if it is inclined to impose any

2 We also note that in addition to rejecting seven counts altogether, the
Hearing Panel concluded that the JQC had proved only “half” of one additional
count.

12
discipline here, issue a public reprimand or censure. The Director
did not file a notice of exceptions, thereby accepting the findings and
conclusions of the Hearing Panel. This matter now comes before us
to review the Hearing Panel's Report and Recommendation and
determine what discipline, if any, is warranted.

3. In reviewing a recommendation for judicial discipline, we
defer to factual findings unless clearly erroneous, but review legal
determinations de novo, and exercise our own discretion in
determining what discipline, if any, 1s warranted.

We begin by setting out the proper standard of review. The
Constitution divides tasks associated with judicial discipline
between the JQC and this Court, assigning to the JQC the power to
investigate, try, and recommend disciplinary sanctions in judicial
misconduct matters, and vesting only this Court with the power to
impose disciplinary sanctions. See Ga. Const. of 1983, Art. VI, Sec.
VII, Pars. VI (a), VIII; see also Inquiry Concerning Judge Crawford,
310 Ga. 403, 407 n.5 (851 SE2d 572) (2020) (Blackwell, J.,

concurring).

Pursuant to a constitutional amendment approved by Georgia

13
voters in 2016, the governance of the JQC itself has undergone
considerable change in recent years. Georgia voters approved the
amendment of certain provisions of the Georgia Constitution
governing the composition and procedures of the JQC. See Ga. L.
2016, pp. 896-897; Ga. L. 2022, p. 383A. The amendment “abolished”
the existing JQC and gave the General Assembly the authority to
“create and provide for the composition, manner of appointment,
and governance of’ the JQC, with appointments to the JQC “subject
to confirmation by the Senate as provided for by general law.” See
Ga. L. 2016, pp. 896-897 (amending Ga. Const. of 1983, Art. VI, Sec.
VII, Par. VI (a), (c)). Pursuant to its new authority, the General
Assembly passed extensive legislation regarding the composition of
the JQC and its procedures. Most notably, the new statutory
structure created a bifurcated system where the Investigative Panel
and its staff investigates and prosecutes allegations of judicial
misconduct and the Hearing Panel adjudicates formal charges and
makes recommendations to this Court. See OCGA § 15-1-21 (e). But

the constitutional amendment left untouched this Court's

14
constitutional authority over judicial discipline, as well as the
constitutionally prescribed circumstances in which judicial
discipline may be imposed. In other words, although the General
Assembly has exercised its newfound authority to shape the power
and procedures of the JQC, such that the way the JQC does its work
has changed, the authority of this Court in the system of judicial
discipline remains the same, as do the standards for imposing
discipline. Accordingly, our pre-2016 case law on these points
remains “binding.” See Ga. Const. of 1983, Art. VI, Sec. VI, Par. VI.

In considering whether the Director has met the standard of
proof as to charges of misconduct, we employ a “clear and convincing
proof standard.” See Inquiry Concerning Judge Crawford, 310 Ga.
at 405 (2). Pursuant to its constitutional obligation to review any
proposed removal of a judge, this Court “exercise[s] its judgment
based upon the entire record in order to determine whether [the]
conduct [of a judge or judicial candidate] warrants discipline, and, if
so, what sanctions should be imposed.” In the Matter of: Inquiry

Concerning a Judge, 275 Ga. 404, 406 (566 SE2d 310) (2002)

15
(citation and punctuation omitted). “In performing this independent
function, we give substantial consideration and due deference to the
[Hearing Panel’s] ability to evaluate the credibility of the witnesses
who appear before it. However, this Court reaches its own
conclusions regarding disciplinary sanctions against a sitting judge,
and the recommendations of the [Hearing Panel] are not binding
upon us.” Id. Again, because the recent constitutional overhaul of
the JQC did not alter this Court’s authority over the disciplinary
process, this standard remains the same.

We therefore apply the sort of review this Court generally
applies to review of a factfinder who also draws legal conclusions
and makes determinations as to an appropriate outcome, ie.,
deferring to credibility determinations and factual findings unless
clearly erroneous, and reviewing legal determinations and the
ultimate outcome de novo. See Inquiry Concerning a Judge, 275 Ga.
at 406; see also, e.g., Nelson v. State, 312 Ga. 375, 377 (863 SE2d 61)
(2021) (standard for reviewing a trial court's ruling on a defendant's
motion to suppress); In the Matter of Cook, 311 Ga. 206, 207-208 (1)

16
(857 SE2d 212) (2021) (standard of review for State Bar disciplinary
matters); OCGA § 24-6-620 (Evidence Code provides that “[t]he
credibility of a witness shall be a matter to be determined by the
trier of fact[.]’).

4. The Hearing Panel misapprehended the scope of the Code
of Judicial Conduct by applying tt to actions by Judge Coomer before
he became a judicial candidate.

Although we have endeavored to apply this standard of review
here, we are constrained by the two major flaws in the Hearing
Panel's Report and Recommendation. We start by considering the
first of these flaws: the Hearing Panel based its recommendation at
least in part on conduct that occurred before Judge Coomer became
a judge and outside of the time that he was seeking a judgeship. But
that is incorrect; the Code of Judicial Conduct does not apply to such
pre-judicial conduct.

Judge Coomer has argued throughout these proceedings that
he cannot be disciplined for pre-judicial conduct. He has contested
the JQC’s ability to seek discipline of him for conduct that occurred

before he offered himself for consideration for a judgeship, framing

17
this as a question of the JQC’s “jurisdiction.” Prior to conducting the
formal evidentiary hearing in this matter, the Hearing Panel
rejected these arguments, relying primarily on the JQC Rules and
the Georgia Constitution to conclude that the JQC in fact has
“jurisdiction” over pre-judicial conduct to the extent that conduct is
“prejudicial to the administration of justice which brings the judicial
office into disrepute.”

We agree with Judge Coomer that the JQC cannot pursue
charges against him arising from actions taken before he became a
judge or judicial candidate. But instead of this being a question of
the JQC’s jurisdiction or constitutional power, this conclusion is
instead the result of the plain text of the Code of Judicial Conduct,
which does not apply to actions taken by people who are not yet
judges or judicial candidates.

(a) We need not resolve Judge Coomer’s argument that due
process forecloses discipline based on pre-judicial conduct.

Judge Coomer has argued that imposing discipline for conduct

prior to his time as a judge or judicial candidate would violate his

18
due process rights because he had no notice at the time he engaged
in the alleged conduct that it would be subject to the Code. In its
order denying the motion to dismiss, the Hearing Panel rejected that
argument, reasoning that the judicial discipline process is not about
punishing a judge, but determining his fitness to serve. The Panel
cited language from a 1995 decision of this Court that “the removal
of a judge is not designed to punish the individual, but rather is the
legal consequence of judicial misconduct or unfitness.” In the Matter
of: Inquiry Concerning a Judge, 265 Ga. 848, 848 (4) (462 SE2d 728)
(1995). The Panel added that Judge Coomer

knew or should have known when repeatedly applying for

and ultimately attaining his position as a judge that the

JQC Rules expressly provide the JQC with jurisdiction

over his pre-judicial conduct and that such conduct may

well bear upon his capacity to perform his duties with

integrity, impartiality, and competence, as well as relate

to the public’s confidence in the judiciary.

The Hearing Panel gave insufficient consideration to Judge

Coomer’s due process argument. The Georgia Constitution explicitly

provides that “[n]o action shall be taken against a judge except after

19
hearing and in accordance with due process of law.” Ga. Const. of
19838, Art. VI, Sec. VII, Par. VIII. Based on this provision, this Court
has said the JQC’s authority to enforce the Code “is not... .
unlimited, inasmuch as the Constitution requires the Commission
to afford due process to judges and provides for this Court to review
the imposition of discipline.” In re Judicial Qualifications Comm’n
Formal Advisory Opinion No. 239, 300 Ga. 291, 294 (1) (b) n.6 (794
SE2d 631) (2016). Indeed, this Court relied on precisely this
constitutional provision in the very same decision the Hearing Panel
cited in its order denying Judge Coomer’s motion to dismiss: we said
“[t]he gravity of the [judicial discipline] proceeding requires that it
be fundamentally fair and in keeping with the basic requirements of

due process.” Matter of Inquiry Concerning a Judge, 265 Ga. at 848

(4).

3 Federal due process requirements also apply. See S&S Towing &
Recovery, Lid. v. Charnota, 309 Ga. 117, 119 (1) (844 SE2d 730) (2020)
(Principles of due process embodied in the Fourteenth Amendment “extend to
every proceeding, whether judicial or administrative or executive in its nature,
at which a party may be deprived of life, liberty, or property.” (citation and
punctuation omitted)); Collins v. Morris, 263 Ga. 734, 735-736 (1) (4388 SE2d

20
But we need not resolve here whether disciplining a judge for
actions committed prior to him becoming a judge or judicial
candidate would violate that judge's due process rights. Regardless
of whether due process would place such a limit on the JQC’s power,
the JQC can investigate and try only violations of the Code of
Judicial Conduct. And the Code of Judicial Conduct does not extend
to pre-judicial conduct.

(b) The text of the Code of Judicial Conduct makes clear that
it does not reach conduct of those who are netther judges nor judicial
candidates.

“(T]he authority to prescribe ... particularized standards for
judicial conduct belongs to this Court as an incident of the judicial

power, an authority that we have exercised by our adoption of the

Code of Judicial Conduct.” In re Judicial Qualifications Comm’n

896) (1994) (elected officials have a property interest in their office that can be
taken from them “only by procedures meeting the requirements of due
process’) (quoting City of Ludowici v. Stapleton, 258 Ga. 868, 869 (1) (375 SE2d
855) (1989)). And fair notice of what conduct is prohibited is a key component
of due process. See Baker v. State, 280 Ga. 822, 823 (2) (633 SE2d 541) (2006).

4 To be clear, we are not talking about situations in which a judge is
indicted or convicted for conduct occurring before the judge became a judge.
Specific procedures in that event are set forth in Article VI, Section VII,
Paragraph VII, subsections (b) and (c) of the Georgia Constitution.

21
Formal Advisory Opinion No. 239, 300 Ga. at 294-295 (1) (b)
(citation and footnote omitted). The Code repeatedly makes clear
that it governs the conduct of only judges and “judicial candidates,”
a defined term that includes persons applying for judicial
appointments, as well as elected candidates and announced
appointees waiting to be sworn in.* The Preamble to the Code states
that the Code “establishes standards for ethical conduct of judges
and judicial candidates.” Language in the Code outlining its
“[s]cope” specifies that its canons and rules “are intended to govern
conduct of judges and judicial candidates, and in certain
circumstances to be binding upon them.” Code, Scope [6]. And in
another introductory section outlining the “[a]pplication” of the

Code, the Code says that “[a]ll judges, whether full-time, part-time,

5 A change to the rules clarifying that “[a] person who is announced as
the appointee to fill a judicial position by the Governor... continues to be a
judicial candidate until he or she is sworn into office” did not take effect until
November 1, 2018. But the earlier version of the rules nonetheless led to the
same result here. After all, the Code unambiguously applied to judicial
candidates, and a candidate for appointment remains a candidate until
actually appointed. Merely being announced as the intended appointee is not
the same as an actual appointment; Judge Coomer did not cease being a
candidate for appointment until his appointment was signed, which happened
the same day he was sworn in, October 31, 2018.

22
or pro tempore, shall comply with this Code” except as otherwise
provided. That overarching declaration regarding the breadth of the
Code’s application specifies that “[a]nyone, whether or not a lawyer,
who performs judicial functions under the Constitution and laws of
Georgia, including an associate judge, senior judge, special master,
magistrate, or municipal judge, or any person who is a judicial
candidate for any such office, is a judge for the purpose of this Code.”
Code, Application.

This reading of the plain language of the Code as governing the
conduct of only judges and judicial candidates is bolstered by the fact
that even for a person clearly governed by the Code, some of its
provisions do not apply, or do not apply immediately upon that
person coming within the Code’s reach. Part-time judges and judges
pro tempore are permitted to engage in the private practice of law,
and thus are not required to comply with certain rules in certain
contexts. See Code, Application (A)-(B). In defining the term
“judicial candidate,” the Code provides that “[jJudicial candidates

who do not currently hold judicial office are subject to the same Code

23
provisions as judges pro tempore.” Code, Terminology.’ The Code
also provides that certain rules, like those governing fiduciary
activities and personal and family financial activities, must be
complied with only “as soon as reasonably possible and... in any
event within the period of one year from commencing service as a
judge.” Code, Application (C). All this makes clear that the rules do
not govern conduct occurring prior to becoming a judge or judicial
candidate, as they do not in every event apply even to new judges.
In context, it is clear that this language means not just that the
Code governs only judges and judicial candidates, but also that it
governs only those actions taken while a person is a judge or judicial
candidate. The above-cited provision about the obligations of new
judges makes this particularly clear. It says “[a] person to whom this
Code becomes applicable” — i.e., someone who becomes a judge or
judicial candidate — “shall comply immediately” with most of the

rules, but allows a grace period for complying with certain other

®° This language was added to the Code effective November 1, 2018, the
day after Judge Coomer was sworn in as a Court of Appeals judge.

24
rules. Code, Application (C). The necessary implication of that
language is that the Code does not require someone to “comply” with
any of its rules before they become a judge or judicial candidate. If
it did, there would be no need to specify when a person must start
complying because all of the person's conduct would be retroactively
swept into the Code’s reach upon that person becoming a judge or
judicial candidate. And in addressing the Code’s reach after a person
has left judicial office, the Code provides that
the appropriate authority for judicial discipline shall have
continuing jurisdiction over individuals to whom this
Code is applicable regarding allegations of misconduct
occurring during the individual's service as a judge,
judicial candidate, or an officer of a judicial system, if a
complaint is filed no later than one year following that
service.
Code, Application (D) (emphasis supplied). This, too, leads to a
conclusion that when the Code says its canons and rules “are
intended to govern conduct of judges and judicial candidates,” Code,
Scope [6], it is referring to conduct undertaken while someone is a
judge or a judicial candidate.

Moreover, the JQC previously articulated that understanding.

25
At some point prior to March 2018, the Investigative Panel
recommended pursuant to JQC Rule 28 (B) that the Hearing Panel
issue an opinion on whether the Code of Judicial Conduct applied to
conduct by a non-judge before that person becomes a judicial
candidate. In June 2018, the Hearing Panel submitted to this Court
for approval a Formal Advisory Opinion to the effect that “conduct
by a non-judge before that person becomes a judicial candidate...
is not governed by the Code.’7 See Case No. S18Z1356, In re JQC
Formal Advisory Opinion No. 242. Reviewing some of the same
language from the Code set forth above, the Hearing Panel’s
proposed FAO concluded:

What... the Code makes clear is that someone who is not

yet a judicial candidate — and not already a judge — is

not governed by the provisions of the Code. Consequently,

the Investigative Panel is without jurisdiction to consider

complaints that are limited to allegations of misconduct

that occurred before a non-judge becomes a judicial

candidate. While such allegations may well be fodder for

campaign material, they do not fall within the

Commission’s purview.

Later in 2018, the Investigative Panel proposed various

7 Attached as Appendix 1.
26
amendments to the Code and the JQC Rules, again appearing to
recognize that the Code itself did not reach misconduct occurring
before a person becomes a judge or judicial candidate. Among the
Investigative Panel’s proposals were requests that the language
about the JQC’s ongoing reach after a person left judicial office be
amended to the effect that the Code is applicable to “allegations that
the individual engaged in conduct prior to service as a judge that
impairs the individuals current ability to carry out judicial
responsibilities with integrity, impartiality, and competence[.]” The
Investigative Panel also proposed adding commentary to Rule 1.2 of
the Code that “[o]n rare occasions, violations of the Code may be
based on conduct occurring before the individual became a judge.”
In proposing these amendments, the Investigative Panel explained
that the Code and JQC Rules “are at odds regarding jurisdiction over
misconduct that occurs before an individual becomes a judge or

”

judicial candidate.” The Investigative Panel said the proposed

amendments would “clarif[y] what type of conduct — prior to a judge

8 Attached as Appendix 2.
27
assuming the bench — the Commission may look to as a potential
violation of the Code” and differentiate between the prior
misconduct of judges and the prior misconduct by a judicial
candidate who never becomes a judge.

But the Court did not approve those proposed amendments to
the Code. The Court did approve some of the other revisions to the
Code requested by the Investigative Panel in that memo, specifically
clarifying that announced appointees or election winners awaiting
swearing-in are considered “judicial candidates” and that judicial
candidates are subject to the same Code provisions as judges pro
tempore. But none of those approved amendments extended the
Code’s reach to conduct occurring before the individual became a

judge. Even so, the JQC ultimately withdrew the proposed FAO.®

° We note that, after filing his exceptions to the Hearing Panel’s Report
and Recommendation, Judge Coomer filed a supplemental brief raising for the
first time the FAO and asking us to treat it as persuasive authority. We were
already aware of the FAO, and afford it only the treatment reflected in this
opinion. In response to Judge Coomer’s supplemental brief raising the FAO,
the JQC submitted a filing stating that although it does not know exactly when
the FAO was withdrawn, records indicate the JQC withdrew it before January
1, 2019. We note that the JQC Rules do not appear to authorize the JQC
unilaterally to withdraw a formal advisory opinion once the process for review

28
The JQC takes the position that the FAO became “moot” due to
amendments to the Code and JQC Rules approved by this Court on
November 1, 2018. But an amendment to the JQC Rules cannot alter
the application of the Code itself. And the November 2018
amendments to the Code — which clarified the definition of the term
“judicial candidate” and specified that judicial candidates who do not
hold judicial office are subject to the same Code provisions as judges
pro tempore — in no way undermined the FAO’s conclusion that the
Code does not apply to pre-judicial conduct.

In summary, the Hearing Panel determined that the Code of
Judicial Conduct did not apply to persons not yet judges or judicial
candidates, and the Investigative Panel asked this Court to change

the Code to make it apply to pre-judicial conduct. This Court

by this Court has been completed, see JQC Rule 28 (B), so its purported
unilateral withdrawal may have been ineffective until this Court’s September
2020 order reflecting that the FAO was “withdrawn as moot[.]” And the rules
do provide that when this Court declines to review a formal advisory opinion,
it becomes “binding... on the Commission and the person who requested the
opinion[.]” JQC Rule 28 (B) (4). Regarding the FAO at issue here, it is the JQC’s
Investigative Panel that requested the opinion — indicating that the position
taken in the opinion became binding on the JQC generally and the
Investigative Panel specifically. To be clear, none of our analysis today depends
in any way on whatever effect the FAO might have had.

29
declined. And instead of accepting that fact, the JQC’s response was
apparently to withdraw the Hearing Panel's determination and
proceed as if it had never happened, which ultimately resulted in
bringing charges against Judge Coomer based on actions he took
before he became a judicial candidate. When Judge Coomer
protested by filing a motion to dismiss, the Hearing Panel denied
the motion in an order that did not so much as grapple with the text
of the Code — let alone acknowledge or explain the JQC’s shifting
interpretation. Rather, the Hearing Panel relied on the JQC’s own
Rules, which say that the JQC “has jurisdiction over judges
regarding allegations that misconduct occurred before or during
service as a judge and regarding allegations of incapacity during
service as a judge.” JQC Rule 2 (B) (1) (emphasis supplied). The
Hearing Panel concluded that this JQC Rule “comports with the
Georgia Constitution” and is supported by “[t]he fundamental
objectives of judicial disciplinary proceedingsf.]”

Relying on the constitutional provision that “[a]ny judge may

be... disciplined... for conduct prejudicial to the administration of

30
justice which brings the judicial office into disrepute,” the Hearing
Panel concluded that “[t]he Georgia Constitution thus affords the
JQC jurisdiction over a judge’s pre-judicial conduct to the extent
such conduct is ‘prejudicial to the administration of justice which

)

brings the judicial office into disrepute.” But the question of
whether the JQC’s authority to investigate, try, and recommend
disciplinary sanctions based on pre-judicial conduct is constrained
by the text of the Constitution does not arise here, and we express
no opinion on it. The JQC Rules are procedural rules and rules for

the JQC’s governance; they do not — and cannot — say what conduct

is actually proscribed, and for whom.!° The Code of Judicial Conduct

10 The statute regarding JQC Rules states that they shall be promulgated
by the JQC’s Investigative Panel and effective only upon review and adoption
by this Court. See OCGA § 15-1-21 Gg). This Court has previously said that the
authority for JQC rule promulgation is found in a provision of the Constitution
unchanged by recent amendments, Article VI, Section VII, Paragraph VII (a),
which says this Court “shall adopt rules of implementation” without any
requirement for JQC involvement. See In re Judicial Qualifications Comm’n
Formal Advisory Opinion No. 239, 300 Ga. at 295 (1) (b) n.9. Whether that
constitutional construction is correct (which would raise constitutional
questions about the statutory requirement for JQC promulgation of such
rules), or whether the constitutional language is more properly understood to
refer to this Court’s authority to promulgate the Code of Judicial Conduct
(which we have elsewhere said is not a function of any particular constitutional

ol
does that, and this Court alone has the power to promulgate the
Code. See In re Judicial Qualifications Comm’n Formal Advisory
Opinion No. 239, 300 Ga. at 294 (1) (b); Judicial Qualifications
Comm n v. Lowenstein, 252 Ga. 432, 433-434 (1) (814 SE2d 107)
(1984). So to say that the JQC has “jurisdiction over a judge's pre-
judicial conduct” — even if true as a matter of Georgia constitutional
law, which we do not decide — is like saying that the superior courts
of this state “have exclusive jurisdiction over trials in felony cases.”
The latter statement is, of course, absolutely true. See Ga. Const. of
1983, Art. VI, Sec. IV, Par. I. But that does not answer the question

of what constitutes a “felony” that can be tried in superior court.

text, but is instead an inherent power of this Court, see Judicial Qualifications
Comm'n v. Lowenstein, 252 Ga. 432, 433-434 (1) (314 SE2d 107) (1984)), is not
an issue we need decide today. What is clear from the pertinent statute is that
the rules shall be “for the commission’s governance.” OCGA § 15-1-21 Gg). The
Constitution empowers the General Assembly to legislate on that subject in
similar text: “The General Assembly shall by general law create and provide
for the composition, manner of appointment, and governance of a Judicial
Qualifications Commission... .” Ga. Const. of 1983, Art. VI, Sec. VII, Par. VI
(a). Neither the statute nor the Constitution supports the idea that the JQC
Rules can do more than govern the JQC’s own internal practices and
proceedings before the JQC. Accord Ga. Const. of 1983, Art. VI, Sec. VII, Par.
VI (b) (The procedures of the Judicial Qualifications Commission shall
comport with due process.”).

32
Only Georgia criminal statutes answer that question. Here, by
analogy, only the Code answers the question of whether conduct
before a person became a judge or judicial candidate may subject
that person to judicial discipline under the authority of this Court
and the JQC. And, as explained above, the Code plainly answers
that question in the negative.

5. Wereject Judge Coomer’s other arguments as to the JQC’s
authority over his conduct even after he became a judicial candidate.

(a) The Code of Judicial Conduct’s application to judicial
candidates extends beyond their activity in “campaigning and
politics relating to judicial positions.”

To be clear, we would not go as far as Judge Coomer urges in
drawing the limits of the JQC’s reach. Judge Coomer argues that
the reach of the Code to “judicial candidates” is quite limited. He has
argued that “whereas the JQC has jurisdiction over judicial
candidates, it is confined to their activity in campaigning and
politics relating to judicial positions.” But this finds no support in

the text of the Code, which, again, specifies that “[a]nyone ... who

performs judicial functions under the Constitution and laws of

33
Georgia, including... any person who ts a judicial candidate for any
such office, ts a judge for purposes of this Code.” Code, Application
(emphasis supplied). This language was cabined somewhat in an
amendment to the definition of “judicial candidate” in the Code,
effective November 1, 2018, specifying that judicial candidates who
do not yet hold judicial office are subject only to the more limited
constraints on judges pro tempore. But this language was not
effective until the day after Judge Coomer was formally appointed
and sworn in and thus ceased to be a “judicial candidate.” Therefore,
during the time that Judge Coomer was a judicial candidate, the
general language that “any person who is a candidate” for a judicial
office “is a judge” for purposes of the Code controlled. And even
under the more limited definition of “judicial candidate” in the
current Code, a judicial candidate is not exempt from any of the
provisions of the Code at issue in this matter — Rules 1.1, 1.2 (A),
and 4.2 (B). Rather, judicial candidates are now exempt only from
Rules 3.4 (extra-judicial appointments), 3.8 (fiduciary activities), 3.9

(arbitration and mediation), 3.10 (practice of law), 3.11 (financial

34
activities), and 3.15 (A) (1) (annual financial reporting of extra-
judicial compensation). See Code, Application (B) (1). In short, when
Rule 1.1 provides that, “Judges shall respect and comply with the
law,” and Rule 1.2 (A) provides that, “Judges shall act at all times
in a manner that promotes public confidence in the independence,
integrity, and impartiality of the judiciary,” “Judges” is understood
to include “judicial candidates” — and it was so understood when
Judge Coomer was seeking appointments in 2018.

(b) Investigating a judge for conduct that occurred while he
was simultaneously a judicial candidate and a member of the
General Assembly does not violate constitutional separation of
powers principles.

Judge Coomer also argues that investigating him for conduct
that occurred while he was a judicial candidate but also still a
member of the General Assembly would violate separation of powers
principles, because the General Assembly has the authority to
regulate the conduct of its members. The Georgia Constitution is

“clear that one branch cannot subsume another's territory: ‘The

legislative, judicial, and executive powers shall forever remain

35
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.” Ga. Dept. of Human Svcs. v. Steiner, 303
Ga. 890, 904 (V) (815 SE2d 883) (2018) (quoting Ga. Const. of 1983,
Art. I, Sec. II, Par. III). And Judge Coomer cites the Georgia
Constitution’s direction that each house of the General Assembly
“shall be the judge of the election, returns, and qualifications of its
members and shall have power to punish them for disorderly
behavior or misconduct by censure, fine, imprisonment, or
expulsion[.|’ Ga. Const. of 1983, Art. III, Sec. IV, Par. VII. But by its
own terms, this language does not give the General Assembly
exclusive power to discipline its members; indeed, that notion would
suggest that the members of the General Assembly are immune
from criminal prosecution for all crimes at all times, not merely the
misdemeanor-arrests-during-session from which the Georgia
Constitution protects them. See Ga. Const. of 1983, Art. III, Sec. IV,
Par. IX (The members of both houses shall be free from arrest

during sessions of the General Assembly, or committee meetings

36
thereof, and in going thereto or returning therefrom, except for
treason, felony, or breach of the peace.’). In any event, the JQC’s
investigation here does not interfere with or subsume the legislative
branch’s authority. It certainly did not involve the investigation of a
sitting legislator and thus in no way interfered with the General
Assembly’s ability to discipline its members. And at the time the
JQC initiated its investigation, Judge Coomer was no longer a
member of the General Assembly and was instead a sitting judge.

The Constitution sets forth in general terms the conduct for
which a judge may be disciplined, and the Code sets forth the
particularized standards. As we make abundantly clear today, the
Code, by its terms, applies to judges and judicial candidates. So once
Judge Coomer became a judicial candidate, he was required to abide
by that Code, even if he was also a legislator for some portion of that
time. This does not violate separation of powers principles.

(c) The JQC’s authority tncludes conduct by judges and
judicial candidates that may also fall within the purview of another

government agency.

There is also no merit to Judge Coomer’s argument that the

37
JQC lacks authority to discipline Judge Coomer for actions as a
judge or judicial candidate merely because another government
agency, whether it be the State Bar of Georgia (as an arm of this
Court) or the CFC, has concurrent authority to investigate alleged
misconduct. An attorney who becomes a judicial candidate may
continue to practice law during his candidacy. See Code,
“Terminology” — “Judicial candidate”; Application, Part B, cmt. 2.
But seeking a judicial office does not absolve that attorney from his
obligations under the Georgia Rules of Professional Conduct.
Similarly, as Judge Coomer concedes, the CFC is charged with
ensuring compliance with campaign finance requirements
applicable to all constitutional offices, including judicial ones. See
OCGA 8§ 21-5-6 (b) (prescribing duties of CFC, including duties to
investigate financial disclosure reports), 21-5-50 (generally
prescribing duties of public officers and candidates for elected public
office to file financial disclosures). Nothing about this statutory
scheme strips the JQC of its constitutional authority to investigate

judges for misconduct, including for actions taken as a judicial

38
candidate. Judges and judicial candidates must respect and comply
with the law, including that governing campaign finance. See Code,
Rule 1.1.

Judge Coomer also argues that these proceedings should have
been stayed as a prudential matter while the investigations by the
CFC and State Bar were pending. There may be circumstances in
which the JQC might consider such abstention appropriate, and we
do not suggest that it lacks that discretion. But it did not choose to
abstain in this matter, and Judge Coomer offers no reason for us to
second-guess the JQC’s choice, much less substitute our own
judgment at this late date. Indeed, given that Judge Coomer’s
interim suspension with pay has remained in place for more than
two years pending a final resolution of the JQC proceedings,
prudence counsels resolving this matter with alacrity and dispatch.

6. The Hearing Panel applied the wrong standard for
determining whether a judge may be disciplined under our
Constitution.

We turn now from the scope of the Code of Judicial Conduct to

the grounds for discipline authorized by the Constitution. As we

39
alluded to above, the Georgia Constitution sets out five grounds for
discipline: discipline “for willful misconduct in office, or for willful
and persistent failure to perform the duties of office, or for habitual
intemperance, or for conviction of a crime involving moral turpitude,
or for conduct prejudicial to the administration of justice which
brings the judicial office into disrepute.” Ga. Const. Art. VI, Sec. VII,

Par. VII (a).!! The Amended Formal Charges alleged that discipline

11 This constitutional provision did not include “conviction for a crime
involving moral turpitude” among the bases for discipline of judges until the
1983 Constitution. See Ga. Const. of 1976, Art. VI, Sec. XIII, Par. III (b); Ga.
L. 1982, pp. 2551, 2553, § 3; Ga. L. 1983, p. 2070. Interestingly, the official
committee to revise Article VI at the 1983 Constitutional Convention
recommended that the phrase “conduct prejudicial to the administration of
justice which brings the judicial office into disrepute” be removed from the
provision, suggesting the substitution of “conviction of a crime involving moral
turpitude” as more definite language. See Committee to Revise Article VI, Full
Committee Meeting, August 8, 1980, at pp. 213-216; Full Committee Meeting,
August 22, 1980, at pp. 89-91. Although that version lacking the “conduct
prejudicial’ clause initially was approved by the General Assembly, see Ga. L.
1981 (Extraordinary Session), pp. 1438, 182-183, the version ultimately
submitted to, and approved by, Georgia voters, included both phrases. See Ga.
L. 1982, pp. 2551, 2553, § 3; Ga. L. 1983, p. 2070.

The 1945 Constitution does not appear to have initially provided for
discipline of judges at all. See generally Ga. Const. of 1945, Article VI. But a
1972 amendment to that Constitution created the JQC, with authority to
investigate complaints about judges’ “willful misconduct in office, or willful and
persistent failure to perform his duties, or habitual intemperance; or for
conduct prejudicial to the administration of justice which brings the judicial
office into disrepute.” Ga. L. 1972, pp. 1364-1367, Ga. L. 1973, p. 1755; see also
Fortson v. Weeks, 232 Ga. 472, 490-491 (208 SE2d 68) (1974) (Hall, J.,
concurring).

40
was appropriate under only two of these categories, asserting
generally that Judge Coomers conduct constitutes “willful
misconduct in office and is prejudicial to the administration of
justice, bringing the office of Judge on the Georgia Court of Appeals
into disrepute.” In recommending that Judge Coomer be removed
from office, the Hearing Panel concluded that Judge Coomer had
engaged in willful misconduct in office by conduct charged in a
handful of counts alleging conduct that occurred while Judge
Coomer was a judge, albeit not actions taken in a judicial capacity.
And it found that Judge Coomer had engaged in conduct prejudicial
to the administration of justice in conduct charged under all of the
counts that the Hearing Panel found had been proved.

While “willful misconduct in office” and “conduct prejudicial to
the administration of justice’ may seem very broad, our case law
shows otherwise. As one might imagine with legal text of such age
and significance, we have explained what those grounds mean:

We interpret “willful misconduct in office” to mean actions

taken in bad faith by the judge acting in her judicial

capacity. “Conduct prejudicial to the administration of

41
justice” refers to inappropriate actions taken in good faith
by the judge acting in her judicial capacity, but which may
appear to be unjudicial and harmful to the public’s esteem
of the judiciary. Prejudicial conduct may also refer to
actions taken in bad faith by a judge acting outside her
judicial capacity.

Matter of Inquiry Concerning a Judge No. 94-70, 265 Ga. 326, 327-
328 (1) (454 SE2d 780) (1995); see also, e.g, In re Judicial
Qualifications Comm’n Formal Advisory Opinion No. 239, 300 Ga.
at 297 (2) (citing Matter of Inquiry Concerning a Judge No. 94-70 for
the proposition that “[a] knowing and willful misapplication of the
law ... would amount to bad faith and thereby implicate the Code
of Judicial Conduct”); Leitch v. Fleming, 291 Ga. 669, 674 (8) (732
SEK2d 401) (2012) (citing Matter of Inquiry Concerning a Judge No.
94-70 for the proposition that willful misconduct means actions
taken in bad faith by a judge acting in her judicial capacity); In the
Matter of: Inquiry Concerning Judge Robertson, 277 Ga. 831, 834 (8)
(596 SE2d 2) (2004) (“Prejudicial conduct refers to actions taken in
bad faith by a judge acting outside of his or her judicial capacity.
Whether discipline should be imposed and the severity of discipline

depends, in part, upon the effect of the improper activity on the

42
judicial system.”); Matter of Inquiry Concerning a Judge, 265 Ga. at
849 (5) (citing Matter of Inquiry Concerning a Judge No. 94-70 for
the proposition that “blatant disregard for the law’ is bad faith).”
In other words, “willful misconduct in office” applies only to
actions taken in bad faith and in a judicial capacity. And “judicial
capacity’ is a familiar phrase that means actions taken not merely

during the term of service as a judge, but actions taken actually as

12 Judge Coomer’s counsel appeared to suggest to the Hearing Panel that
Paragraph VII (a) of Article VI, Section VII was amended in 2016. But the 2016
amendments did not alter Section VII, Paragraph VII, subparagraph (a) of
Article VI, setting forth the grounds on which judges may be removed or
otherwise disciplined. See Ga. L. 2016, p. 896, § 2. The language that now
comprises subparagraph (a) has not been altered since voters approved the
1983 Constitution.

We also note that the case interpreting this language did so in the
context of analyzing language in a JQC Rule. See Matter of Inquiry Concerning
a Judge No. 94-70, 265 Ga. at 327 (1). Both then and now, the JQC Rules
included a rule itemizing the permissible grounds for discipline. Those grounds
as they appear in the various rules were and are materially identical to the
constitutional language. Compare JQC Rule 6 (A) (providing that “the grounds
for discipline are: (1) willful misconduct in office; (2) willful and persistent
failure to perform the duties of office; (3) habitual intemperance; (4) conviction
of a crime involving moral turpitude; and (5) conduct prejudicial to the
administration of justice which brings the judicial office into disrepute”); with
former JQC Rule 4 (b) (providing for discipline where judge engaged in “willful
misconduct in office, or willful and persistent failure to perform the duties of a
judge, or habitual intemperance, or conduct prejudicial to the administration
of justice which brings the judicial office into disrepute’).

43
a judge exercising judicial power. See, e.g., Heiskell v. Roberts, 295
Ga. 795, 800-801 (8) (764 SE2d 368) (2014) (Judges are ‘immune
from liability in civil actions for acts performed in their judicial
capacity.”) (quoting Earl v. Mills, 275 Ga. 503, 504 (670 SE2d 282)
(2002)); compare Heiskell, 295 Ga. at 801 (“a judge is not immune
from liability for nonjudicial actions, 1.e., actions not taken in the
judge’s judicial capacity’) (quoting Mireles v. Waco, 502 U.S. 9, 11-
12 (112 SCt 286, 116 LE2d 9) (1991) (punctuation omitted)).

None of the counts against Judge Coomer allege anything
about actions he took in a judicial capacity. Accordingly, none of
those counts permit discipline on the ground that his conduct
amounted to “willful misconduct in office.” And none of those counts
would permit discipline for “conduct prejudicial to the
administration of justice,’ absent a finding of bad faith.

The only cited constitutional basis for discipline that might
apply here is the sub-category of “conduct prejudicial to the
administration of justice,’ to the extent that it involves “actions
taken in bad faith by a judge acting outside [his] judicial capacity.”

44
Matter of Inquiry Concerning a Judge No. 94-70, 265 Ga. at 328 (1).
And plainly, to qualify as “actions taken in bad faith,” an action must
involve something more than negligence. See State v. Bryant, 307
Ga. 850, 854 (2) (838 SE2d 855) (2020) (“Inherent in the concept of
bad faith is something more than negligence.” ); see also Greenway v.
Hamilton, 280 Ga. 652, 655 (8) (631 SE2d 689) (2006) (noting in
attorney fee context that “[b]ad faith is not simply bad judgment or
negligence, but a breach of known duty through some motive of
interest or ill will’ (citation and punctuation omitted)); see also
Wachovia Bank of Ga., N.A. v. Namik, 275 Ga. App. 229, 234 (8) (b)
(620 SE2d 470) (2005) (“Bad faith is not simply bad judgment or
negligence, but it imports a dishonest purpose or some moral
obliquity, and implies conscious doing of wrong, and means breach
of known duty through some motive of interest or ill will.”
(punctuation and footnote omitted)).

The Hearing Panel's Report and Recommendation is
ambiguous as to whether the Panel found that Judge Coomer had

acted in bad faith in committing any of the proved violations. The

45
Director argued in closing that, “at a minimum, [Judge Coomer] is
so negligent in knowing the law” that the public cannot trust him to
sit on the Court of Appeals. The Hearing Panel apparently was
persuaded by this argument, offering an explanation for its
recommendation of removal that contemplated that Judge Coomer’s
ignorance of that law may itself be a basis to remove him:

[Judge Coomer]’s long and unbroken pattern of violating
multiple attorney ethics rules and campaign finance laws
to his own financial benefit not only erodes the public's
confidence in the judiciary, but, just as importantly, falls
far short of the high standards of behavior justifiably
expected of all judges. [Judge Coomer] either knowingly
violated these rules and laws — and didn't care — or he
lacked basic knowledge of the ethical and professional
responsibilities of his important position as attorney,
counselor, and, ultimately, judge. Neither option —
violator or uninformed — is acceptable[,] and neither
instills confidence in the judiciary. And in this case, there
are too many examples of both.

As to Judge Coomer’s dealings with Filhart, the Hearing Panel
found that Judge Coomer’s “conduct establishes a plain pattern of
flouting (or not knowing) the law[.]’ As to the campaign finance
counts, the Hearing Panel concluded that “[a]gain and again, pre-

judgeship and after taking the bench, [Judge Coomer] has ignored

46
(or been ignorant of) critical legal and ethical restrictions on the use
of campaign funds.” The Hearing Panel concluded generally that
parties and their lawyers appearing before Judge Coomer at the
Court of Appeals “would have little reason to be confident in [Judge
Coomer]’s ability to fairly and competently interpret and apply the
law” in various areas of the law that have arisen in these
proceedings. These conclusions suggest that the Hearing Panel
recommended removal despite leaving open the possibility that
Judge Coomer may have simply been ignorant of the rules and laws
that the Hearing Panel found he violated — in other words, without
finding that the relevant actions were taken in bad faith.

If this were the full extent of the Hearing Panel’s conclusions,
we might be compelled to impose no discipline at all; findings that
Judge Coomer may well have been merely negligent are not findings
of bad faith by clear and convincing evidence. But the Hearing Panel
also states that Judge Coomer “exploited” both Filhart and the
“unique and fragile position of trust that attorneys and judges
enjoy. That word — “exploited” — suggests intentional action.

AT
Moreover, the Report and Recommendation suggested that Judge
Coomer’s introduction of character evidence may have backfired,
undermining the notion that he acted out of an ignorance of the law:
[F]rom the character witnesses [Judge Coomer] called to
testify comes another powerful lesson: they — in
particular his superior officer, Colonel [Lorraine M.]
Mink, from the United States Air Force’s Judge Advocate
General Corps — saw in [Judge Coomer] a smart, capable
leader who excelled in all that he did. Accepting this
assessment as true, the Hearing Panel is left to conclude
that [Judge Coomer], deemed to be in the top one percent
of officers Colonel Mink had ever met, knew exactly what

he was doing when he [acted in the manner alleged in the
various counts].

In context, we cannot determine whether this is a bright-line
factual finding that every violation of law and rules by Judge
Coomer was done knowingly, or whether it is merely a final
rhetorical flourish. It certainly is at odds with other statements in
the Report and Recommendation suggesting that the Hearing Panel
is uncertain that Judge Coomer knowingly violated the various rules
at issue, especially the statement that “there are too many examples
of both [violator or uninformed].’ And that difference matters a

great deal. Knowing violation of the law would likely satisfy bad

48
faith; mere negligence plainly would not.

7. Conclusion.

In sum, the Hearing Panel made two critical errors of law. It
erroneously determined that Judge Coomer’s conduct before he
became a judicial candidate was the proper subject of discipline. And
it erroneously determined that negligent conduct outside the
judicial capacity could warrant discipline, when our case law makes
clear that conduct outside the judicial capacity must be done with
bad faith to warrant discipline.

Those errors require us to end where we began — with the
standard of review. As we said at the outset, in determining whether
to accept the Hearing Panel's recommendation, we review legal
determinations de novo but we defer to factual findings. Intent was
a matter of enormous dispute in this matter, and this Court is not
well positioned to resolve the factual questions of intent that are
crucial to determining whether discipline is constitutionally
permitted. The Hearing Panel heard dozens of hours of testimony

related to that topic and observed the people offering that testimony;

49
the Hearing Panel — not this Court — is best positioned to resolve
those questions. We therefore must remand for the Hearing Panel
to engage in that work.

The Hearing Panel is directed to issue new findings that (1)
determine which counts against Judge Coomer that were proved by
clear and convincing evidence are properly within the scope of the
Code of Judicial Conduct; (2) clearly articulate which counts, if any,
may support discipline within the constitutional framework as
articulated in this opinion, with particular attention toward
whether the Director proved bad faith for any of those counts; and
(3) reconsider what, if any, discipline is appropriate based on the
revised findings.'!2 The Hearing Panel is directed to file that new

Report and Recommendation with this Court within 60 days of the

'8 We also direct the Hearing Panel to use more precision in making
factual findings in support of its conclusions regarding whether the Director
has proved the various charges against Judge Coomer, particularly whether
Judge Coomer represented Filhart at the time of the conduct at issue in Counts
6 and 20 Gf those counts are still determined to have been proved), and as to
which particular campaign expenditures Judge Coomer violated the law by
failing to disclose on his December 31, 2018 Campaign Contribution Disclosure
Report (again, if the count(s) involving that report are determined to have been
proved). We also direct the Panel to include complete record citations,
including citations to the final hearing transcript.

50
date of this opinion. We leave it to the Hearing Panel to set a
schedule for obtaining briefing from the parties as to the questions
now before it.

Matter remanded with direction. All the Justices concur, except
Bethel, J., not participating, and Colvin, J., disqualified.

51
APPENDIX 1
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IN THE SUPREME COURT
STATE OF GEORGIA

In re: Formal Advisory Opinion 242 Case No.

me ee

JOC Formal Advisory Opinion 242

The Judicial Qualifications Commission’s (“Commission”) Hearing Panel
respectfully submits the attached Formal Advisory Opinion (Exhibit A) to the
Court pursuant to Commission Rule 28(B)(4). The Commission’s Investigative
Panel, invoking Commission Rule 28(B)(1), requested that the Hearing Panel issue
a formal advisory opinion. The Hearing Panel made a preliminary determination
that a proposed formal advisory opinion should be drafted on the issue presented
by the Investigative Panel. The Hearing Panel subsequently authored and then
published a proposed Formal Advisory Opinion 242 on the websites of the
Commission, the Administrative Office of the Courts, and the State Bar of Georgia
on 6 March 2018. Consistent with Commission Rule 28(B)(3), the Hearing Panel
invited public comments on proposed Formal Advisory Opinion 242 through 23
March 2018. After due consideration of those comments, the Hearing Panel made

minor changes to the proposed formal advisory opinion.
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The Hearing Panel now files Formal Advisory Opinion 242 with the Court
and will also publish it on the websites listed above. The Hearing Panel or any
person “aggrieved” by Formal Advisory Opinion 242 has twenty days from the
date of this filing to petition the Court for discretionary review.’ Commission Rule
28(B)(4). The Court may also review the opinion sua sponte. Id.

With this explanation, the Hearing Panel respectfully submits Formal

Advisory Opinion 242 to the Court.

This 5 day of May, 2018.

po
Hon. Robert C.1. McButney
Presiding Officer

Judicial Qualifications Commission Hearing Panel

' The Hearing Panel does not intend to seek discretionary review from the Court at this time.
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EXHIBIT A

JUDICIAL QUALIFICATIONS COMMISSION
STATE OF GEORGIA
FORMAL ADVISORY OPINION No. 242

Pursuant to Rule 28(B) of the Rules of the Judicial Qualifications
Commission (JQC), the Investigative Panel of the JQC has requested that the
Hearing Panel of the JQC issue an opinion on whether the Code of Judicial
Conduct, which governs both judges and judicial candidates (as defined in the
Code and discussed below), applies to conduct by a non-judge before that person
becomes a judicial candidate. This question appears not have been addressed in
any earlier JQC Advisory Opinion. For the reasons set forth below, the Hearing
Panel concludes that such conduct is not governed by the Code.

It is alleged that a candidate for judicial office in Georgia has engaged in
conduct arguably violative of the Code. However, it appears that the alleged
misconduct occurred before the individual became a judicial candidate. A
complaint concerning this conduct has been presented to the Investigative Panel.

The Code of Judicial Conduct applies to “[a]Jnyone ... who performs a
judicial function under the Constitution and laws of Georgia” as well as to “any
person who is a judicial candidate for any such office.” Application, Code of

Judicial Conduct. A “judicial candidate” is any person “seeking selection for or
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retention in judicial office by election or appointment.” Terminology, Code of
Judicial Conduct. One becomes such a candidate as soon as one

(1) appoints or forms a campaign committee, (11) makes a public

announcement of candidacy, (iii) declares, files or qualifies as a

candidate with the election or appointment authority, or (iv)

authorizes solicitation or acceptance of contributions or support.

Id. Once the Code is applicable to an individual, that individual must immediately
comply with all of the Code’s provision (except for Rules 3.8 and 3.1(B) — (F)).
Application, Section C.

What this examination of the Code makes clear is that someone who is not
yet a judicial candidate -- and not already a judge -- is not governed by the
provisions of the Code. Consequently, the Investigative Panel is without
jurisdiction to consider complaints that are limited to allegations of misconduct
that occurred before a non-judge became a judicial candidate.' While such

allegations may well be fodder for campaign material, they do not fall within the

Commission’s purview.

* This Opinion does not address the specific facts that gave rise to the complaint to the
Investigative Panel. They are, appropriately, not known to the Hearing Panel. It is for the
Investigative Panel to determine whether the individual in question, now purportedly a judicial
candidate, was a judicial candidate, as defined by the Code, when the complained-of behavior
occurred,
APPENDIX 2
JUDICIAL QUALIFICATIONS COMMISSION

AMENDMENT PROPOSAL
To: The Supreme Court of Georgia
From: The Investigative Panel of the Judicial Qualifications Commission
Date: September 24, 2018
Re: Proposed Amendments to the Georgia Code of Judicial Conduct (the “Code”) and

the Rules of the Georgia Judicial Qualifications Commission

Introduction
Pursuant to Judicial Qualifications Commission Rule 3.E (1)(b), the Investigative Panel of
the Commission has “the duty and authority to . . . propose amendments to the Georgia Code of
Judicial Conduct and these [Commission] Rules, subject to review and adoption by the Supreme
Court.” After several revisions and a public comment period, the Investigative Panel now proposes
amendments addressing three issues: (1) jurisdiction over judges elect, (2) jurisdiction over the
prior misconduct of judges and judicial candidates, and (3) which provisions of the Code should

apply to judicial candidates.
L. The Commission has jurisdiction over judges elect.

Several Commissioners and others have posed questions as to the Commission’s
jurisdiction, including the extent to which the Commission may discipline judges elect, that is,
those individuals who are duly elected or appointed to office but have not yet officially assumed
office. The Code explicitly gives the Commission jurisdiction to discipline judicial candidates and
sitting judges for misconduct. (See Code, Preamble | 3; Application § 1.) It does not, however,
clearly speak to judges elect who are no longer judicial candidates but not yet sitting judges.

The Investigative Panel proposes amending the Code and Rules to explicitly make judges
elect subject to the Commission’s jurisdiction. Such amendments prevent anomalous situations
where a judge elect commits misconduct that would typically constitute grounds for discipline or
removal, but the Commission could not formally act on that misconduct until the judge elect
formally assumed office. For example, if a judge elect were to start making speeches for political
organizations or publicly endorsing other candidates for public office in violation of Rule 4.1 (A),

it is uncertain that the Commission has the power to act until the individual assumes judicial office
because the Code and Rules only speak to judges and judicial candidates. Likewise, a judge elect
could commit a felony and remain beyond the Commission’s authority until assuming office.
Amending the Code and Rules to specify that judges elect remain subject to the Code as “judicial
candidates” removes that uncertainty. !

The Supreme Court could make this amendment with the addition of a sentence in the Code
and Rules noting that judges elect are still “judicial candidates” subject to the Code. This addition
could be made in the definition of judicial candidate, which is identical in the Terminology sections
of the Code and Rules.”

Terminology (Page 3 in Rules and Page 7 in the Code)

“Judicial candidate” is a person, including an incumbent judge, seeking selection
for or retention in judicial office by election or appointment. A person becomes a
candidate for judicial office as soon as he or she: (i) appoints or forms a campaign
committee, (ii) makes a public announcement of candidacy, (iii) declares, files or
qualifies as a candidate with the election or appointment authority, or (iv)
authorizes solicitation or acceptance of contributions or support. A person who is
announced as the appointee to fill a judicial position by the Governor or other
appointing authority, or who is certified as elected to a judicial position. continues
to be a judicial candidate until he or she is sworn into office. Fhe+erm—judicial

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Finally, the Investigative Panel proposes deleting the last sentence from the definition. That
sentence is a vestige of the old Code and is unnecessary given Rule 4.5’s new “resign-to-run
provision.” That provision now specifically addresses judges who are seeking election or

appointment to non-judicial office,

I. The Commission has jurisdiction over the prior misconduct of judges to the extent
it implicates the judge’s current integrity, impartiality, and competence. The
Commission has no jurisdiction over the prior misconduct of judicial candidates,

The Code and the Commission’s Rules are at odds regarding jurisdiction over misconduct
that occurs before an individual becomes a judge or judicial candidate? The Code provides for

jurisdiction over “allegations of misconduct occurring during the individual’s service as a judge,

'“Tudicial Candidates” refers to both candidates and judges elect for the remainder of this proposal.

? Text that appears unaltered is the text presently, underlined text is a proposed addition, stricken text is a proposed
deletion.

3 The Commission’s Hearing Panel recently issued proposed Formal Advisory Opinion 242, which found that the
Code did not apply to the pre-candidacy conduct of an individual who was not otherwise a judge because that person
was not a judicial candidate or exercising a judicial function at the time.

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judicial candidate, or an officer of a judicial system.” (Code Application, Part D.) The
Commission’s Rules, on the other hand, provide for jurisdiction over “allegations that misconduct
occurred before or during service as a judge or judicial candidate.” (Rule 2.B (2),)

The investigative Panel proposes amending the Code, Application Section, Part D, adding
anew commentary to Rule 1.2 of the Code, and deleting the words “before or” from Commission
Rule 2.B (2), to reflect its jurisdiction over certain misconduct that occurred before an individual
becomes a judge and its lack of jurisdiction over the prior misconduct of judicial candidates:

D. Ongoing Disciplinary Authority

In addition to the foregoing, the appropriate authority for judicial discipline shal]
have continuing jurisdiction over individuals to whom this Code is applicable

regarding allegations of-miseenduct occurring during the individuals service-as-a
judge-judicial-candidate_or-an-officer-ofeidicial systemthat violations of the

Code occurred during the individual’s service as a judge or judicial candidate or
allegations that the individual engaged in conduct prior to service as a judge that
impairs the individual’s current ability to carry out judicial responsibilities with
integrity, impartiality, and competence, if a complaint is filed no later than one
year following that service. See Rule 1.2, Commentary [67.

Rule 1.2 Promoting Public Confidence in the Judiciary
Commentary:

[6] On rare occasions, violations of the Code may be based on conduct occurring
before the individual became a judge. For example, a judge may commit a serious
crime before becoming a judge that is not discovered until after the judge takes
office. That prior crime may undermine the judge’s current integrity, impartiality,
or competence such that it impairs the judge’s ability to carry out official duties in
conformance with the Code. In general, however. a judge’s prior conduct will not
serve as the basis for a violation of the Code. For example, most judges practiced
law _before assuming judicial office. Although full-time judges are generally
prohibited from practicing law under Rule 3.10, that prior conduct is obviously not
a basis for a violation of the Code because it does not affect the judge’s current
compliance with the Code. Likewise. a judge may have committed a minor crime,
years prior to taking office, that indicates no current inability to comply with the
Code, In sum. an individual’s actions prior to becoming a judge may constitute a
violation of the Code only to the extent that prior acts reflect on the judge’s current
integrity, impartiality, or competence.

Commission Rule 2.B (2)

(2) Former Judges. The Commission has continuing jurisdiction over former judges
regarding allegations that misconduct occurred befere-cr during service as a judge
or judicial candidate if a complaint is made within one year following service as a
judge or judicial candidate.

The proposed amendments clarify two points with respect to Commission jurisdiction. First,
the addition of the commentary clarifies what types of conduct—prior to a judge assuming the
bench—the Commission may look to as a potential violation of the Code, Prior misconduct that
implicates the judge’s current abilities should be subject to Commission jurisdiction. Minor or
youthful indiscretions should net,

Second, the amendment to Part D’s language illustrates a key distinction between the prior
misconduct of judges as opposed to the prior misconduct of judicial candidates. The Commission
has a duty to investigate the relevant misconduct of judges or former judges whether it occurred
before or during the individual’s judgeship. In fact, the Constitution explicitly gives the
Commission this duty in cases involving the indictment of a judge, regardless of when the conduct
underlying the indictment occurred, (GA. CONST. Art. VI, § VII. Para. VII.) Likewise, the
Commission has a public interest in addressing the campaign misconduct of judicial candidates or
former judicial candidates. However, Commission jurisdiction over the misconduct of a judicial
candidate that occurs prior to his or her candidacy, if the candidate never becomes a judge, is
another matter. That issue is properly suited for the voters to consider during a judicial campaign,
and likely fodder for the candidate’s opposition and the press, Thus, Part D’s amendment shows
that the Commission has jurisdiction over misconduct that occurred during service as a judge or
judicial candidate, but the Commission only has jurisdiction over the prior misconduct of judges.
This amendment protects the Commission’s interest in an ethical judiciary while keeping the
Commission out of unnecessary political issues.

II, Judicial candidates should be subject to the same Code provisions as judges pro
tempore.

In looking at the Commission’s jurisdiction with respect to judges elect, the question arose
as to what provisions of the Code apply to judicial candidates as opposed to judges. The Code’s
application provides that “[a]nyone, whether or not a lawyer, who performs judicial functions
under the Constitution and laws of Georgia, including an associate judge, senior judge, special
master, magistrate, or municipal judge, or any person who is a judicial candidate for any such
office, is a judge for the purpose of this Code.” On the other hand, only Canon 4 of the Code—

governing political activity and campaign conduct—explicitly mentions its application to judicial
candidates. These two provisions appear at odds because the application section instructs the
Commission to treat judicial candidates as “judges” under the Code while only Canon 4 explicitly
applies to judicial candidates.

Furthermore, properly determining what Code sections apply to judges as opposed to
judicial candidates is of great practical importance. For example, Canon 3 prohibits “judges” from
acting as arbitrators or mediators for compensation or from practicing law. Prohibiting judicial
candidates from such activities would impose an undue financial hardship on many and is
inconsistent with how this Commission has enforced and interpreted the Code. On the other hand,
only applying Canon 4 to judicial candidates leaves too much misconduct beyond the purview of
the Code. For example, a judicial candidate who wins an election should not trade on the prestige
of his or her future judicial office for private gain. If only Canon 4 applied to judicial candidates,
this may be permissible conduct. (See Rule 1.1 (requiring judges to act in a manner that promotes
the public confidence in the independence, integrity, and impartiality of the judiciary); Rule 1.3
(prohibiting judges from lending the prestige of their office to advance the private interests of the
judge or others).)

The Investigative Panel proposes applying the same Code provisions to judicial candidates
as judges pro tempore. This strikes a proper balance between upholding the integrity of the
judiciary and ensuring that judicial candidates are not unduly burdened by the full Code. The
Code’s application provides that judges pro tempore are not required to comply with the following

rules of the Code,

* Rule 3.4 [extra-judicial appointments],

¢ Rule 3.8 [fiduciary activities],

« Rule 3.9 [arbitration and mediation],

® Rule 3.10 [practice of law],

e Rule 3.11 [financial activities], and

e Rule 3.15 (A)(1) [annual financial reporting of quasi-judicial and extra-judicial

compensation].

Exempting judicial candidates from these strictures of Canon 3 ensures that candidates do
not face undue hardship when seeking judicial office by allowing them to practice law, serve in

extra-judicial roles, and serve as mediators or arbitrators for pay among other things, in other

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words, to engage in business related to the practice of law, At the same time, Canons | and 2,
which protect the impartiality and integrity of the judiciary, remain in force. Accordingly, the
Investigative Panel proposes adding a sentence to the end of the definition of judicial candidate

specifying that such candidates are subject to the same Code provisions as judges pro tempore.

Terminology (Page 3 in Rules and Page 7 in the Code}

“Judicial candidate” is a person, including an incumbent judge, seeking selection
for or retention In judicial office by election or appointment. A person becomes a
candidate for judicial office as soon as he or she: (i) appoints or forms a campaign
committee, (ii) makes a public announcement of candidacy, (iii) declares, files or
qualifies as a candidate with the election or appointment authority, or (iv)
authorizes solicitation or acceptance of contributions or support. A person who is
announced as the appointee to fill a judicial position by the Governor or other
appointing authority, or who is certified as elected to a judicial position. continues
to be a judicial candidate until he or she is sworn into office. The tera“padicial

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appeintmentte-nosn_judicial- office. Judici ates who do not currently hold

judicial office are subject to the same Code provisions as judges pro tempore.

Additionally, the Investigative Panel proposes adding a second paragraph to the

commentary section under the definition of judges pro tempore to reference the change above.
Commentary:
[1] These Rules contemplate . . . infrequent periods of time.
[2] Judicial candidates who do not currently hold judicial office are subject to the

same Code provisions as judges pro tempore. See Terminology Section, definition
of judicial candidate.

Conclusion

For these reasons, the Investigative Panel respectfully requests that the Supreme Court
consider and adopt these proposed amendments to the Georgia Code of Judicial Conduct and the

Rules of the Georgia Judicial Qualifications Commission.
Decided March 15, 2023.
Judicial discipline.
Charles P. Boring, Courtney M. Veal, Anna G. Cross, for
Judicial Qualifications Commission.
Copeland Stair Valz & Lovell, Mark D. Lefkow,; Cathey &
Strain, Dennis T. Cathey, Stites & Harbison, Johannes S. Kingma,

for Coomer.

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