The director of the state judicial watchdog agency is defending its constitutionality and disciplinary powers after its predecessor was abolished by constitutional amendment in 2016.

Ben Easterlin, a former King & Spalding partner who served for eight years as chairman of the Judicial Qualifications Commission before becoming its director last year, pushed back against former Georgia Gov. Roy Barnes, who is defending Robert “Mack” Crawford against formal charges the Griffin Judicial Circuit Superior Court judge stole funds from a court registry in violation of the state Code of Judicial Conduct.

Easterlin filed the written response with the Supreme Court of Georgia on Sept. 27 in the run-up to Crawford's ethics tribunal before the JQC. The date for the tribunal has not been set. Easterlin contends the JQC's judicial panel has the authority to decide the constitutionality question.

Barnes argued in a challenge to the charges last month that the current JQC—a formerly independent constitutional agency now squarely under the control of the Georgia General Assembly—violates the state constitution's separation of powers clause and, therefore, has no authority to discipline the state's judiciary.

The former governor also contended the constitutional amendment passed on Nov. 8, 2016, to abolish the original agency did not include a provision that allowed acts allegedly committed prior to abolition to be adjudicated by the JQC reconstituted in 2017 by the Legislature.

The creation of the current JQC, the third version in two years, was needed because of faulty language in the constitutional amendment.

Barnes argued the state constitution is clear that legislative, judicial and executive powers must remain “separate and distinct” and that no one performing the duties of one branch of government can simultaneously exercise a function of either of the other two.

The JQC was—and nominally remains—part of the judicial branch. But Barnes argued the legislative and executive appointments of members to oversee and recommend action against judges is a constitutional violation absent a specific exemption to the separation of powers clause.

Easterlin disagreed. “The separation of powers clause only prohibits one branch of government from exercising the duties of another,” he contended. “The clause does not prohibit one branch of government from merely appointing officers to another.”

“The Supreme Court of Georgia has held that the mere appointment by a member of the legislative branch, of a non-legislator to an executive commission is not a simultaneous discharge of duties and functions against which our constitutional doctrine of separation of powers is directed,” Easterlin said.

“Where there is no 'dual service' in different branches of government, there is no constitutional issue,” Easterlin continued. “Indeed, if Judge Crawford's contention was meritorious, every judge in Georgia appointed by a governor would be holding office unconstitutionally.”

Easterlin also pushed back against Barnes' contention that the current JQC—created on July 1, 2017—has no authority over allegations of misconduct that occurred before the original agency was abolished.

Easterlin said the theft allegation against Crawford, which is also the subject of a criminal inquiry by the Georgia Bureau of Investigation, occurred in December 2017 after the current JQC was inaugurated. Crawford is accused of directing a court clerk to write him a check for more than $15,000 that he deposited in the registry on behalf of a client in 2002. No one ever claimed the $15,000, and Crawford contends his client, who died in 2004, owed him the money for legal fees.

Easterlin said nothing in the state constitution limits what judicial conduct the JQC may consider.

“Quite the opposite,” he said. “Article VI provides for the removal or discipline of judges for broad criteria—including misconduct, failure to perform the duties of office, habitual intemperance, conviction of a crime, or conduct that brings the judicial office into disrepute—without reference to when the acts occurred.”

He added the JQC's governing statute transferred the powers, functions, and duties of the former commission associated with the investigation, discipline, removal and involuntary retirement of judges.

Finally, Easterlin argued the state Code of Judicial Conduct, which defines unethical conduct that may become grounds for judicial disciplinary action, “has remained unchanged. Those acts which constituted judicial misconduct before November 2016 and after are the exact same.”