IN RE JUDICIAL QUALIFICATIONS COMMISSION FORMAL ADVISORY OPINION NO. 241.
2014, the Council of State Court Judges (hereinafter,
"the Council") filed an amicus brief in the
then-pending matter of Sentinel Offender Services, LLC v.
Glover, 296 Ga. 315 (766 S.E.2d 465)
(2014). That same month, plaintiffs' counsel
in Sentinel submitted a request to the Judicial
Qualifications Commission (hereinafter, "the
Commission") for an opinion as to whether the Georgia
Code of Judicial Conduct prohibited the Council from
submitting amicus briefs to the Georgia Supreme Court in a
pending case involving private litigants. Thereafter, the
Commission rendered Formal Advisory Opinion No.
Relying on portions of former Canons 1,  2 (A),
2 (B) of the Code of Judicial Conduct, the
Commission opined that the "filing [of] Amicus Curiae
Briefs by judges, councils of judges or any other
organization of judges in cases pending in any trial or
appellate court would be improper and prohibited by the
Georgia Code of Judicial Conduct."
Council petitioned this Court pursuant to Commission Rules 22
(b) and (d), seeking a review of Formal Advisory Opinion No.
241. This Court granted the petition, questioning whether
Georgia law and the Code of Judicial Conduct permitted either
individual judges, or groups or councils of judges, to file
amicus curiae briefs in pending cases.
parties filed briefs on the merits, and the Commission also
filed a motion to dismiss,  contending that this Court was
without authority to review the Commission's formal
advisory opinions. We heard oral argument on November 2,
2015. Having carefully considered the arguments of both
parties, we conclude that the Code of Judicial Conduct
permits judges' associations to submit amicus briefs in
pending litigation. We further conclude that, while
individual judges are not absolutely barred from filing
amicus briefs in pending litigation, they may only do so on
rare occasion and with great caution. Accordingly, pursuant
to Rule 22 (b), we direct the Commission to reconsider
Opinion No. 241 in a manner consistent with the opinion of
First, we address the Commission's motion to dismiss,
which avers that this Court lacks the authority to review the
Commission's advisory opinions. For the same reasons as
explained by this Court in In re Judicial Qualifications
Commission Formal Advisory Opinion No. 239, 300 Ga. 291,
292-299 (794 S.E.2d 631) (2016) (establishing this
Court's authority to review advisory opinions from the
Judicial Qualifications Commission), that motion is denied.
Concerning Formal Advisory Opinion No. 241, the Council
argues that the Commission lacks authority to issue the
opinion as it attempts to regulate the Council's
institutional conduct and is unrelated to judicial
discipline. We agree.
is our opinion that the jurisdiction of the Commission should
be construed as encompassing only persons who are clearly
intended to be within its jurisdiction." Matter of
Inquiry Concerning a Judge No. 1419, 259 Ga. 831, 831
(388 S.E.2d 683) (1990). Further,
[a]lthough the Commission possesses the authority to impose
discipline to enforce the standards of judicial conduct,
nothing in the Constitution vests the Commission with the
authority to set those standards in the first instance, to
render authoritative and binding interpretations of the
standards, or to offer any interpretation of the standards
other than in the context of a particular disciplinary
proceeding. To the contrary, the Constitution itself
identifies in general terms the conduct for which judges may
be disciplined, see Art. VI, Sec. VII, Par. VII, and the
authority to prescribe more particularized standards for
judicial conduct belongs to this Court as an incident of the
judicial power, see Judicial Qualifications Comm. v.
Lowenstein, 252 Ga. 432 (314 S.E.2d 107) (1984), an
authority that we have exercised by our adoption of the Code
of Judicial Conduct.
Formal Advisory Opinion No. 239, supra at
Georgia Constitution vests the Commission with the power
"to discipline, remove, and cause involuntary retirement
of judges, " Ga. Const. of 1983, Art. VI, Sec. VII, Par.
VI, and charges the Commission to review both voluntary and
involuntary disciplinary actions for "any judge"
serving in Georgia, see generally id. at Par. VII.
The Application section of the Code of Judicial Conduct
explains that the Code applies to "[a]nyone, whether or
not a lawyer, who is an officer of a judicial system
performing judicial functions, " and further provides
that the Commission retains jurisdiction over
"individuals to whom [the] Code is applicable" for
one year after their term of service expires. Accordingly,
based upon the plain language of our Constitution and the
Code of Judicial Conduct, the scope of the Commission's
authority is limited to reviewing alleged improper actions of
individuals performing judicial functions and potentially
imposing disciplinary action for the same.
the Council is not an individual judge. It did not perform a
judicial function by submitting an amicus brief to this Court
for consideration and the Council is not facing a potential
disciplinary action based upon these activities; instead, the
Council is a constitutionally-created body which was
established in order "to effectuate the constitutional
and statutory responsibilities conferred upon it by law and
to further the improvement of the state courts, the quality
and expertise of the judges thereof, and the administration
of justice." OCGA § 15-7-26 (b). The filing of
amicus briefs by the Council may fulfill these purposes and
is part of the long tradition of judicial organizations,
including the Conference of Chief Justices, filing amicus
briefs in State and Federal courts around the
country. Therefore, the Commission does not have
the authority to regulate the Council's conduct as an
institution. Accord Mass. Comm. On Judicial Ethics Op. No.
2002-10, 2002 WL 34696420, at *2 (Sept. 30, 2002)
(hereinafter "Mass CJE Op."); Utah Judicial Ethics
Informal Op. 98-17, 1998 WL 35387318, at *1 (Dec. 14, 1998).
Though the request submitted by plaintiffs' counsel in
the Sentinel matter only asked whether a judicial
council could file an amicus brief in pending litigation, the
Commission extended its interpretation of the Code of
Judicial Conduct in FAO No. 241 to absolutely bar individual
judges from filing amicus briefs. However, in coming to this
conclusion, the Commission did not look beyond the general
provisions of Canons 1 and 2. Reviewing the Code of Judicial
Conduct in its entirety, we conclude that, while individual
judges are generally prohibited from filing amicus briefs,
they may, on a rare occasion and while exercising extreme
caution, file such briefs in pending matters.
the Code of Judicial Conduct prohibits full-time judges from
filing individual amicus briefs. For instance, former Canon 5
(F) (now Rule 3.10) states that a full-time judge "shall
not practice law, unless allowed by law." Even more
pertinent is former Canon 3 (B) (9) (now Rule 2.10 (A)),
Judges shall not, while a proceeding is pending or impending
in any court, make any public comment that might
reasonably be expected to affect its outcome or impair its
fairness or make any non-public comment that might
substantially interfere with a fair trial or hearing . . . .
This subsection does not prohibit judges from making public
statements in the course of their official duties or from
explaining for public information the procedures of ...