The Atlanta Gleaner.

INQUIRY CONCERNING JUDGE CHRISTIAN COOMER., No. S21Z0595, 2023 WL 2521905 (Ga. Mar. 15, 2023)
#judicial qualifications commission #court of appeals #conduct before becoming a judge
This case is about the JQC erroneously applying the Code of Judicial Conduct to alleged criminal malfeasance by Court of Appeals Judge Christian Coomer that occurred prior to becoming a judicial candidate and judge; and applying the wrong evidentiary standard in their hearing.

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 prejudicial 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 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 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 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 prejudicial 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 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) (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 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 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 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, 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 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).

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 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 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 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 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.

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.”

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 (4).

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 neither 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 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 “[application” 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, 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. 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 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.

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