Judicial Qualifications FALL 2001 NEWSLETTER GEORGIA FOI ACCESS GEORGIA FIRST AMENDMENT FOUNDATION The 11th Circuit has some harsh words for Georgia's judicial-election speech police By Tom Bennett James C. Rawls is the lawyer for the Georgia Judicial Qualifications Commission. On the morning of July 17, he faced the 11th U.S. Circuit Court of Appeals, opened his notebook, and confidently began to speak. He got out "May it please the court," and a half-dozen more words. Then Chief Judge Gerald B. Tjoflat broke in. "What concerns me is this canon (in the Georgia Code of Judicial Conduct)," Judge Tjoflat said. I can't think of anything more chilling." Canon 7(B)(1((D) affects speech by judges and candidates in elections. Judge Willis B. Hunt struck it last August in federal court while dismissing claims for damages and a special election. Rawls is appealing that ruling on behalf of the JQC, hoping to save the canon. "It's shot through with judgement calls about what the candidates can and can't do," Judge Tjoflat said. Rawls broke in to talk about the makeup of the JQC's Committee for Judicial Election Invervention. "I don't care who's on the committee," Judge Tjoflat said, breaking in again. "I'm worried about this committee sitting there and making this statement six days before the election." That was the case when Atlanta lawyer George Weaver, a former Georgia deputy attorney general, challenged incumbent Justice Leah Sears in the 1998 election. His television commercial criticized her decisions. The JQC committee rebuked him on election eve, leading to his suit, Weaver v. Bonner, now in federal court. "If I were a candidate I wouldn't want Big Brother making a statement like that," Judge Tjoflat cont inued. "If I'm in the heart of the debate and I'm asked a question and I've got this committee in the back of my mind, what am I going to do?" Georgia has contested elections, and so it has "options other than silencing," he said. "The candidate doesn't know if Big Brother is going to clobber him on his own initiative, and when, when is the shoe going to drop?" Weaver is represented by David J. Myers of Lord, Bissell & Brook of Atlanta. Myers attacked the canon and the Judicial Qualifications Commission rule that sets up a Committee on Judicial Election Intervention. "This canon and Rule 27 are sloppy and unconstitutional," Myers said. "We ask the court to strike Rule 27 and reinstate the damage claims." Weaver said he mortgaged his DeKalb County home for $100,000 to pay for the television commercial. Georgia has contested elections, but practically speaking, governors appoint them near the ends of their terms. Justices then are listed on ballots, their records on the court mysteries to the state's voters, and they win easily. "The rules, written and unwritten, are so decidedly stacked in favor of incumbents that the Georgia constitution has, for all intents and purposes, been dissolved," Jim Wooten wrote in The Atlanta Journal. "A paternalistic legal-political conspiracy avoids real elections. "Judges resign before their terms expire, allowing the governor to appoint a successor. Then everybody locks arms. Rules are devised to keep outsiders out." If he succeeded, Weaver would benefit every future challenge and alter the court. "That's my goal," Weaver said. "I want to clear the way for others to run for the offices in the future." The citizen appointments on the Judicial Qualifications Commission currently are held by journalists, W.H. "Dink" Nesmith of Community Newspapers Inc. in Athens and Marianne Thomasson of the Newnan Times-Herald. According to Rule 27 of the JQC, one of them must serve on the Committee for Judicial Election Intervention next year.