Behind the flurry of judges' resignations

19th August, 2010
Fulton County Daily Report
R. Robin McDonald

Since Alapaha Circuit Chief Judge Brooks E. Blitch Sr. resigned his judgeship in April 2008 rather than face an ethics trial in front of the state Judicial Qualifications Commission, at least 21 Georgia judges have been disciplined publicly by the JQC or have stepped down from the bench amid allegations of unethical conduct.

JQC Chairman Benjamin F. Easterlin IV calls the stream of judges who have departed under a cloud since the JQC filed public charges against Blitch—accusing him of levying unauthorized court fees, improperly ordering the expenditure of county funds, and influence-peddling—"highly unusual."

Easterlin, a partner at King & Spalding, cautioned, "I would not necessarily reach the conclusion that we have a bunch of bad judges out there based on this recent flurry," and neither is it "a matter of us ratcheting up any investigative efforts."

Easterlin suggested the spate of disciplinary actions and resignations may have been influenced, in part, by publicity highlighting the JQC's involvement in several high-profile judicial resignations. Every time a judge steps down as the result of a JQC action, it seems to embolden attorneys and others to step forward with complaints about other judges, he said.

Indeed, for the fiscal year ending June 30, the JQC received 488 complaints, "the most complaints ever," according to outgoing JQC executive director Cheryl F. Custer, who steps down Sept. 1. The JQC fielded 376 complaints in FY 2009 and 373 complaints in FY 2008.

"I can tell you that persons, lawyers, litigants are feeling a lot more comfortable and a lot less apprehensive about filing complaints now," said Chattahoochee Superior Court Judge John D. Allen, the JQC's vice chairman. "That may be due to the fact we have taken several public actions against judges. It may also be due to the fact the public no longer has the fear of the judiciary they had before about [judges] being untouchable," Allen said.

The JQC is an unusual disciplinary agency. Established by the Georgia constitution, its investigations are largely secret. Anyone who files a complaint—as well as judges who are investigated—are bound by confidentiality and can be held in contempt by the Georgia Supreme Court if they speak publicly about an investigation prior to its resolution. The JQC goes public with an investigation of a judge only when it issues charges, suspends or a removes a judge from office or issues a public reprimand.

Ethics trials take place before the seven-member commission, which also authorizes investigations of complaints and decides whether to file ethics charges against a judge —effectively making the JQC investigator, prosecutor and judge in matters of judicial ethics. And while the JQC can take a judge to trial, it allows, and even encourages, judges to avoid a trial by resigning when they are faced with evidence of misconduct.

Broad discretion

The JQC has broad discretion in what it investigates. The state constitution gives it authority, with state Supreme Court oversight, to hold judges accountable for "willful misconduct in office, willful and persistent failure to perform the duties of office, habitual intemperance, conviction of a crime involving moral turpitude, or for conduct prejudicial to the administration of justice which brings the judicial office into disrepute."

But public ethics charges are uncommon, and trials in front of the commission are rare. Beginning with Blitch in April 2008, the JQC has publicly charged just six judges.

Over the past decade, only three judges have elected to go to trial—one in 2002, one in 2003 and Twiggs County Probate Judge Kenneth E. Fowler in February. On the JQC's recommendation, the Supreme Court of Georgia removed Fowler from the bench in June.

The commission has limited discretion regarding sanctions it can recommend to the Georgia Supreme Court. It can reprimand a judge, either confidentially or in public, or issue a private warning. The JQC's maximum sanctions include suspension or removal from office, with the approval of the state Supreme Court. The JQC cannot levy fines, send a judge to prison or strip a judge of state retirement benefits.

Files stay closed

The JQC can override its own confidentiality rules if a judge makes public the investigation. Its confidentiality rules also must be suspended if there are criminal or civil actions taken against a judge and the JQC is served with subpoenas for its records. But in practice, the JQC has been notably reluctant to open its investigative files.

Last month, Gwinnett County District Attorney Danny Porter, whom the state attorney general appointed in December to review allegations against Appalachian Circuit Superior Court Judge Oliver Harris "Harry" Doss Jr., closed the case, saying the JQC had refused to cooperate in his investigation. Doss resigned last November, but JQC ethics charges are still pending against him. Porter said Custer told him the JQC would fight any subpoena for its records and he said he didn't have the resources to contest the matter.

That predilection for confidentiality extends to the way the JQC treats judges who choose to resign rather than face a formal investigation or public trial. Although investigations are intended to be confidential, they can become public once the JQC's investigator begins gathering evidence and questioning potential witnesses, especially in tight-knit rural communities where it's difficult to keep an inquiry secret.

Easterlin, commission chairman for the past eight years, said the JQC's longstanding practice when it has what it deems to be a valid complaint about a judge is to "confront the judge" with the alleged ethical violations "and give the judge the opportunity to resign."

"The concept is that if there's a situation that we think merits a judge considering resignation, we'll go to the judge and ask him to do that," Easterlin explained. "If the judge is willing to do that, and willing to do that on our terms, which is generally [a promise] not to seek office again, that ends it."

'Efficient' resignations

"From our viewpoint, that's efficient both for the public and the commission. First of all, it's quicker. It doesn't linger. Second, you don't have the expense of a trial. If the ultimate goal is resignation, and we can get it without anything else, that's ideal," said Easterlin.

If a judge resigns, the JQC's involvement and the ethical complaints that led to the resignation remain confidential per the JQC's confidentiality rules, he said. 

"Obviously, if it's not appropriate for the judge to resign, he won't resign," Easterlin concluded. "If we're asking him to do something, and we're not right, the judge will certainly say no."

As a result, judges often decide that it is prudent to resign if the JQC questions them about misconduct. At least twice this year, the JQC's investigator has visited a judge to discuss allegations of ethical misconduct and walked out with a resignation letter. Those resignations were from Chattahoochee Circuit Superior Court Judge Robert G. Johnston III and Griffin Circuit Judge Johnnie L. Caldwell Jr.

Four more judges resigned this year after the JQC began making inquiries about their judicial conduct. They were former Mountain Circuit Superior Court Chief Judge James E. Cornwell Jr., former Griffin Circuit Chief Superior Court Judge Paschal A. English Jr., Floyd County Magistrate Judge Chris Mathis and Cobb County Chief Superior Court Judge Kenneth O. Nix.

Beginning with Blitch in April 2008, the JQC's face in these pre-resignation conversations with judges has been its part-time chief investigator, Richard L. Hyde.

Hyde was the chief investigator for the state attorney general's office under the administration of Michael J. Bowers and handled the state investigation that resulted in prison terms for two Medical College of Georgia researchers who stole more than $10 million from the school. After Bowers went to private practice, Hyde eventually joined him at the Atlanta offices of Balch & Bingham where he investigates cases for the firm. 

Influential partners

For the past two years, Bowers has been the commission's chief prosecutor. Though neither Bowers nor Hyde have a vote on the commission, they are influential in an agency that has only two salaried employees: the executive director and an assistant, both of whom, until last spring, worked part time. Bowers also chairs the Judicial Nominating Commission, which vets candidates for open judgeships and then makes recommendations to the governor. Thus, he may play a role both in the removal of a judge and the nomination of a successor.

"I think Richard has been an important part of all these investigations," Easterlin said. "He has been generous with his time, given our limited resources, and so he has allowed us to investigate more than we could have afforded without his generosity. Secondly, he is a very dedicated and efficient investigator. … We have been able to look into things we wouldn't have been able to otherwise…. He has been able to gather more information than you would think the JQC, with its limited time and funding, would be able to. He looks into things in depth."

Asked whether the public has a right to be informed if the JQC is involved when a judge leaves the bench, Easterlin replied, "I'm not sure what the public benefits from knowing that somebody did something bad, other than the prurient value of gossip. … I don't know that it does any detriment or has adverse results… because they don't know why somebody is gone.

"I'm not saying it's black and white," he continued. "It may be a close call. It may be something reasonable people can disagree about reasonably," Easterlin said.

The costs of trials

JQC vice chairman Allen said the JQC's "dire financial straits"—its 2011 operating budget is just over $250,000—has dictated that it encourage misbehaving judges to resign, even if it means withholding information about a judge's unethical conduct.

 "If we can do something to curtail or forgo having to have an extended public trial, we take that approach," Allen said. A JQC trial costs an average of $100,000, he said. "We have to find the most effective, expeditious, equitable way to approach dealing with what we consider serious issues. The quicker we can get those resolved, the better it is for the public."

But Allen also cautioned that in giving judges the option of resigning rather than face charges, "We've got to be fair to the persons we are approaching as well. We're not out to ride roughshod or unfairly charge or convict or cause the removal of a judge.

"It's a balance that we have to take. … We have to be conscious of not forcing or frightening judges off the bench who may, in fact, be good judges. Nobody wants to go through the public humiliation of having charges brought against them. We don't want to use it as unfair leverage to force people to resign when we have no reason for them to do so. We have to be cautious in our approach, and we are. It's a real balancing act."

Allen acknowledged that the commission's confidentiality rules have helped in persuading judges to resign rather than face a public trial. "We are bound by them at a certain stage of the inquiry. The person with whom we are dealing knows that. … It does two things. It allows for this approach we are taking to be effective. It allows the person against whom complaints are made to make a graceful exit.

"We find we have to balance transparency against performing our job and getting rid of bad judges," Allen continued. "I would say transparency is not a primary concern, but it may be something we need to look at. I doubt seriously … that we are willing to sacrifice confidentiality and expediency in getting rid of judges solely to make it transparent for the sake of transparency. … But it may be something we, the commission, need to talk about."

Georgia House Speaker David E. Ralston, an attorney in the Appalachian Circuit in Blue Ridge and a key player in JQC funding, said that "as a general matter," he is comfortable with the confidentiality provisions associated with JQC complaints. "I think it's important to protect the accused —in this case, judges—from frivolous or spiteful complaints," he said.

When the Appalachian Circuit's Judge Harry Doss was being investigated by the JQC last year, he called Ralston for help. Ralston said he has never represented Doss but did direct the judge to Troutman Sanders partner Norman L. Underwood in Atlanta, who represented Doss during the JQC investigation last fall.

Ralston said the JQC's policy of securing resignations rather than carrying an ethics complaint to trial "serves a legitimate purpose. I think we can't ignore the financial reality."

Providing judges with the cover of confidentiality if they resign "gets back to what's the most effective and expedient way of processing these complaints," Ralston explained. "I would liken this to the criminal justice system. If every person in Georgia charged with a crime insisted on their constitutional right to a fair trial by jury, as opposed to negotiating out a plea, I shudder to think what that would do to the justice system."

Public's right to know

While the JQC's rules largely require confidentiality, the state constitution does not appear to require the JQC to operate in secrecy, except when it takes action against a judge who is under federal or state indictment. Stephen Bright, president and senior counsel of the Southern Center for Human Rights, is one of those who disagrees with the cloak of secrecy under which the JQC largely functions.

"Everybody resigning to cover up what happened does not strike me as good government. The public has a right to know, doesn't it? … In some of these cases, you're talking about …..violations of the law, whether criminal or civil. Beyond that, these people are retiring with a full pension as if nothing happened, when, in fact, they may have engaged in very serious acts of misconduct. I think the public has a right to know this," said Bright.

Attorney Gerald R. Weber, who sued the JQC in 1999 on behalf of an anonymous individual who had complained about a judge but faced contempt if he made that complaint public, said his concern with the JQC's lack of transparency is that its watchdog function may be short-circuited. 

"If there is a formal and public process, sometimes that sends a deterrent message to insure that unethical conduct doesn't occur in the future," said Weber, senior staff counsel at the Southern Center for Human Rights.

Weber represented a former county jury foreman who had complained that a judge fell asleep during the trial and missed significant evidence that might have affected the sentence of the criminal defendant.

The jury foreman, who sued as "John Doe," challenged the JQC's secrecy rule that perpetually barred anyone who complained to the JQC from revealing the complaint, which he wanted to pass along to local political leaders and legislators, Weber said.

On the official complaint form, Weber explained, "There was this boldface paragraph, all in capital letters, that warned of the potential contempt sanction. That's pretty intimidating to a person who complains."

It was also, he said, an unconstitutional prior restraint of free speech. During the course of the litigation—which the JQC fought vigorously—the judge who was the target of the complaint retired. The JQC also rewrote its rule to allow complainants to talk about their complaints once a case was closed.

"In principle, it was a good resolution," Weber said. "But it leaves open the concern that the JQC may have an extended period of time in which they deliberate on whether to conduct an investigation. There is no time limit for that. It also leaves open the possibility that there may be some sort of informal resolution about which the complainant is not aware and the public is not aware.

"My concern with the current rules is that the informal disposition, while it may as a practical matter lead to judges making decisions when they are the object of a complaint, are ultimately for the benefit of, and may be a shortcut for, the JQC to reach a particular result."

21 judges have faced disciplinary action or resigned in past two years

By R. Robin McDonald, Fulton County Daily Report, August 19, 2010

Over the past two years 21 Georgia judges have faced public disciplinary actions or resigned as questions about their ethical conduct percolated into the public realm through news media reports.

Of those 21 judges, the JQC took formal public action against 11.

• Alapaha Circuit Superior Court Chief Judge Brooks E. Blitch III resigned April 15, 2008, after the JQC charged him with levying unauthorized fees, improperly ordering the expenditure of county funds and influence-peddling.

• Alapaha Circuit State Court Judge Berrien L. Sutton, who also served as the Alapaha Circuit's juvenile court judge, resigned April 30, 2008, after the JQC charged him with levying unauthorized fees, appointing non-lawyers as magistrates and improperly attempting to influence a case.

• The JQC filed charges against Glascock County Magistrate Chief Judge Misty L. May on Aug. 28, 2008. After she lost the November 2008 election, the JQC entered into a consent agreement barring May from holding judicial office again., The JQC had reprimanded May in 2007 for failing to account for court funds, handling matters outside her jurisdiction, and having improper, ex-parte conversations.

• Chattooga County State Court Judge Carlton H. Vines resigned after the JQC charged him on Aug. 29, 2008 with violations related to a DUI arrest and the judge's statement to police that he would "make it worth their while" if they took him home. The JQC had suspended Vines in 2003 for alcohol abuse after a DUI arrest.

• Dooly County Probate Judge Dwayne D. Forehand retired at the request of the JQC on Sept. 12, 2008, according to the JQC's annual report. The Cordele Dispatch reported that Forehand's resignation "puts an end to allegations of abuse of office" that included alleged "financial impropriety" and allegations of "mistreatment of people appearing before him in probate court."

• The JQC issued a private reprimand—which it posted on its website—to Atlanta Municipal Court Judge Andrew A. Mickle on Jan. 29, 2009, after he reported his 2008 DUI arrest—to which he later entered a no contest plea—to the JQC.

• The JQC handed down charges against Twiggs County Probate Judge Kenneth E. Fowler on June 11, 2009, accusing him of shortchanging the rights of criminal defendants, levying unauthorized fees, approving unauthorized expenditures of county funds and using abusive language in court. Fowler went to trial before the JQC in February, and the commission recommended his removal. While that decision was pending, the Supreme Court of Georgia suspended Fowler from the bench for retaliating against two witnesses who had testified against him during his ethics trial. The Supreme Court permanently removed Fowler from the bench in May.

• Pickens County Magistrate Dana Blackwell resigned at the JQC's request on April 29, 2009, after she was suspended from the bench following her arrest on charges of taking funds from the court, according to a JQC annual report.

• The JQC suspended Jefferson County Chief Magistrate Judge Murry Bowman on Sept. 29, 2009, indefinitely with pay pending a full investigation after he was charged with aggravated assault on his wife. The JQC reinstated him in December after the county district attorney dropped the charges at the wife's request, according to the JQC's website.

• Appalachian Circuit Superior Court Judge Oliver Harris "Harry" Doss Jr. announced his retirement Nov. 6, 2009, in a letter that also blasted the JQC investigation for its lack of confidentiality. The JQC handed down ethics charges against Doss—which are still pending—on Nov. 9.

• Mountain Circuit Superior Court Judge Kristina Cook Connelly Graham received a public reprimand May 12 based on a complaint filed by Vernon M. Keenan, director of the Georgia Bureau of Investigation, who said the judge had delivered a profanity-laden tirade against drug crime investigators.

Of the remaining 10 judges who have resigned or retired since 2008, news reports have linked eight to JQC inquiries.

 • Mountain Circuit Superior Court Chief Judge Ernest "Bucky" Woods retired Dec. 29, 2009. Circuit District Attorney Brian M. Rickman said the JQC made inquiries about Woods after the DA received complaints that the judge had a personal relationship with a defendant in his court that began on Facebook.

• Muscogee County Superior Court Judge Robert G. Johnston III resigned Feb. 16, telling the Columbus Ledger-Enquirer he did so after a meeting with JQC chief investigator Richard L. Hyde.

• Mountain Circuit Superior Court Chief Judge James E. Cornwell Jr. resigned April 16. Rickman, the circuit's DA, said Cornwell resigned after Hyde made inquiries about possible ethical breaches. The Clayton Tribune reported that Cornwell had ruled on cases involving his divorce lawyer, granted motions favoring a woman with whom he had traveled to Las Vegas, taken his underage son to an Atlanta strip club and been cited for drinking and driving offenses.

• Griffin Circuit Superior Court Judge Johnnie L. Caldwell Jr. gave a resignation letter April 19 to Hyde to carry to the governor after the JQC began investigating allegations that the judge had sexually harassed a female attorney who had appeared in his court. The woman's allegations can be found in court documents.

• Griffin Circuit Superior Court Chief Judge Paschal A. English Jr. resigned April 23 after a meeting with Hyde. A joint investigation by the circuit district attorney and public defender determined the judge had been having an affair with a member of the public defender's staff who represented defendants in English's courtroom.

• Floyd County Magistrate Chief Judge Chris Mathis resigned amid reports of misconduct involving a livestock investment. Floyd County DA Leigh E. Patterson confirmed she contacted the JQC.

• Habersham County Probate Judge Sue Bottoms resigned July 23, and her resignation was posted on the JQC website.

• Cobb County Superior Court Chief Judge Kenneth O. Nix announced his retirement Aug. 10, saying he wanted to avoid a JQC investigation into allegations of sexual misconduct with two female members of the county district attorney's staff.

Two other judges have resigned without any public link to the JQC, although news accounts have raised questions about potentially improper conduct.

• Marietta Municipal Court Judge Diane Busch resigned in July after she was cited with 21 violations related to teenagers drinking alcoholic beverages in her home.

• Fulton County State Court Chief Judge Albert L. Thompson retired Aug. 8. WSB-TV reported that county records it had obtained showed that between Jan. 24, 2007 and Aug. 13, 2007, Thompson reported to work at the county courthouse just 55 out of a possible 147 work days, or 37 percent of the time.

When the Daily Report asked Thompson if he had met with anyone from the JQC before he resigned, the judge didn't answer the question directly, instead referring the newspaper to JQC chairman Benjamin F. Easterlin IV, who said the judge was not the target of a JQC investigation.