A Question Of Authority In Judicial Ethics Opinions

The Georgia Supreme Court has ordered reconsideration of an opinion of the Judicial Qualifications Commission that deals with excluding children from a courtroom and the ability of security personnel to inquire of court visitors

On August 28, 2013, the Judicial Qualifications Commission rendered Formal Advisory Opinion No. 239, which concerns Canon 2 (A) of the former Code of Judicial Conduct. In pertinent part, Canon 2 (A) provides that “[j]udges shall respect and comply with the law,” and Opinion No. 239 concerns the obligation of judges to respect and comply with the constitutional guarantee of the right of public access to judicial proceedings. Concerned that Opinion No. 239 reflects some misunderstandings about the scope of that right and the extent to which it is clear and settled in the decisional law, the Council of State Court Judges asked the Commission to reconsider portions of Opinion No. 239. The Commission, however, declined to reconsider, and so, on July 10, 2015, the Council filed a petition with this Court, seeking a review of Opinion No. 239. In its response to the petition, the Commission conceded our authority to review its formal advisory opinions, but the Commission urged us to deny review of Opinion No. 239 on the merits.

On September 8, 2015, we granted the petition for review, and we directed the Commission and the Council to file briefs addressing the extent to which Opinion No. 239 rests upon clear and settled principles of constitutional law. The Commission and the Council filed briefs, but the Commission also filed a motion to dismiss, repudiating its earlier position, and contending for the first time that this Court is without authority to review the Commission’s formal advisory opinions. We heard oral argument on November 2, 2015. Having carefully considered the arguments of the Commission and the Council, we now conclude that this Court has authority to review formal advisory opinions rendered by the Commission, and we conclude as well that Opinion No. 239 reflects some misunderstandings about the extent to which the scope of the right of public access to judicial proceedings is clear and settled in the decisional law. Accordingly, pursuant to JQC Rule 22 (b), we direct the Commission to reconsider Opinion No. 239 consistent with the opinion of this Court.

Holding on authority

Our authority to review formal advisory opinions rendered by the Commission is necessarily implied by JQC Rule 22, and to the extent that JQC Rule 22 itself is constitutional — it is, and the Commission concedes that it is — our exercise of that implied authority in no way impairs the constitutional prerogative of the Commission to discipline judges. This Court has the authority to review Opinion No. 239 upon the petition of the Council, and the motion of the Commission to dismiss this matter is denied.

On the merits

To the extent, however, that Opinion No. 239 endeavors to extrapolate broader principles of law from these precedents, it raises the worrisome prospect that the Commission has wandered into a field of law that is unclear and unsettled, something that is beyond its purview. The Council contends that the Commission has done exactly that by its identification of certain acts and practices as constitutionally intolerable…

The Council asserts that the law is not clear and settled that the constitutional guarantee of the right of public access extends to children, and the Council likewise contends that the law is not clear and settled that inquiries by security personnel amount to a closure in violation of the constitutional guarantee. With respect to these aspects of Opinion No. 239, we agree that the Commission has gone beyond a mere interpretation of Canon 2 (A) and has wandered into unclear and unsettled areas of constitutional law.

According to Opinion No. 239, a practice of excluding children as a class from judicial proceedings is unconstitutional. We note, however, that none of the precedents cited in Opinion No. 239 concerns the admission of children of tender years to a courtroom, and whether children are constitutionally entitled to the same extent as adults to attend court seems to be an open and debatable question…

Given the current state of the law, fair-minded jurists may reasonably disagree about the extent to which the constitutional guarantee of the right of public access to judicial proceedings requires the admittance of children of tender years, and decisions to admit or exclude children do not, without more, implicate Canon 2 (A).

And

Opinion No. 239 says that it is unconstitutional for court staff or security personnel to inquire of a courthouse visitor about the reasons for his visit. The law, however, is not clear and settled on this point. Certainly, a court has an obligation “to take reasonable measures to accommodate public attendance” at least with respect to the public’s right to attend criminal trials…

Neither this Court nor the United States Supreme Court has decided that no questions ever may be asked of persons seeking admittance to the courthouse or a courtroom, and we note that a number of federal courts have held that requiring such persons to produce photo identification prior to their admittance does not violate the constitutional guarantee of the right of public access…So long as court staff and security personnel understand that a member of the public is entitled to attend court whether or not he has a case pending therein, no clear and settled law prohibits court staff and security personnel from inquiring of persons seeking admittance about what has brought them to the courthouse.

In an apparent effort to limit its scope, Opinion No. 239 says that the practices that it identifies as unconstitutional are only “generally” improper. That offers little comfort, however, to judges who must address these issues every day. If a judge were to carefully consider the law and honestly determine that she ought to do what the Commission has deemed constitutionally intolerable, she then would have to choose between following the law as she understands it or yielding to the contrary understanding of the Commission. In those circumstances, following the law as she understands it would expose the judge to disciplinary proceedings, even if those proceedings ultimately would vindicate the judge. To permit the Commission to put a judge in that position would compromise the independence of the judiciary. Until it is clear and settled in the decisional law whether and to what extent the practices at issue are unconstitutional, it is not for the Commission to opine about what the Constitution means. Accordingly, we direct the Commission to reconsider Opinion No. 239 consistent with the opinion of this Court.

(Mike Frisch)