Judge Robert Judge Robert "Mack" Crawford, Superior Court, Pike County. At his JQC hearing Feb. 25, 2019. Photo: John Disney/ALM

A former Georgia governor told the Georgia Court of Appeals that members of the state's judicial watchdog agency are illegally holding office.

Former Gov. Roy Barnes challenged the legitimacy of the members of the state Judicial Qualifications Commission—which enforces the state Judicial Code of Ethics—arguing the commission's 2018 appointments are invalid because they weren't submitted to the Senate for confirmation until after the legal deadline.

Barnes argued the appeal on behalf of suspended Griffin Circuit Superior Court Judge Robert "Mack" Crawford. The appeal is critical to Crawford's future on the bench after a JQC panel recommended he be removed from office for multiple violations of the ethics code.  

Crawford—a former state legislator and former director of the state Public Defender Council—is currently awaiting trial on felony theft charges and violating his oath of office.

If the 2018 appointments are deemed invalid, then the commissioners had no legal authority to bring ethics charges against Crawford or suspend him from the bench.

The Supreme Court of Georgia stayed its decision on whether to accept the JQC's recommendation until Crawford's appeal is handled.

"A law says what it means and means what it says," Barnes argued before Judges Clyde Reese, Carla Wong McMillian and Todd Markle on Thursday. The statute at issue requires that names of JQC appointees "shall be submitted" to the Senate no later than the third Monday in January in order to be eligible for confirmation, he said. 

Barnes argues the JQC appointments at issue weren't submitted to the Senate until Jan. 18, 2018—three days after the legal deadline. The former governor referenced the Senate Journal citing the Jan. 18 date as incontrovertible evidence of his claim. The state Constitution has established the journal as "the sole, official record" of Senate proceedings, Barnes said.

"So if the statute means what it says and says what it means, then those who are serving could not lawfully serve on the Judicial Qualifications Commission," Barnes said.

Barnes is seeking to overturn the ruling of a Cobb County Superior Court judge who last year affirmed the legality of the JQC appointments after the commission brought ethics charges against Crawford, suspended him with pay, and then convened a hearing to consider whether additional disciplinary action was warranted.

But JQC director Chuck Boring defended the legality of the judicial watchdog agency's 2018 appointments. Boring said the Senate Journal entry on Jan. 18, 2018, stated that the JQC appointees' names had already been properly submitted when the entry was made. "If you look at the record, the actual memo in the Senate Journal, it doesn't say the names were submitted that day," he argued. "It says, 'They have been submitted.' If it says what it means and means what it says, they have been submitted."

State statute also places responsibility for the timeliness of the submissions on the appointing authorities, he said. "That was key. … The main crux was the action by the appointing authorities, not what the Senate did later." All of the appointees' names were submitted on or before Jan. 14, 2018, he said.

Boring also argued that while the state Constitution mandates that certain legislative actions must be recorded, there is no requirement that JQC confirmations are among them. And he contended that the Senate secretary is a constitutional officer designated to receive documents intended for the Senate. Otherwise, appointing officials would have to appear personally in the Senate to hand out notification of nominations "like kids handing out Valentine's Day cards."

"I'm not saying you have to go in and hand out Valentine's Day cards," Barnes responded after Boring ended his presentation. "You can send it to the lieutenant governor or the [Senate] clerk, although that's not the way I did it. However, it's not presented to the Senate until it appears on the Journal."

Additional Reading: 

Supreme Court Stays Removal of Indicted Judge Mack Crawford 

Suspended Judge Challenges Watchdog Agency's Recommendation To Remove Him

Judge Affirms Legality of Judicial Watchdog Agency Appointments 

Suspended Judge's Counsel Contends Judicial Watchdog Appointments Are Illegal

Judicial Watchdog Recommends Removal of Judge Robert "Mack" Crawford