ATLANTA – The judges that contract with probation-monitoring companies argued Monday they should have been able to weigh in when the Georgia Supreme Court ruled last year on whether those companies are allowed under state law.
A commission that oversees judges had said judges should not file “friend of the court” briefs on any case or face charges of being unethical if they do. The seven-member Judicial Qualifications Commission removes judges from the bench when they’re found to have violated ethics rules.
Georgia’s highest court was considering an appeal from Augusta residents over the legality of state courts using private companies to monitor people on probation for minor offenses, like traffic violations. The Council of State Court Judges filed a brief with the Supreme Court in favor of a practice called tolling in which the clock stops ticking down on a person’s sentence whenever fees aren’t paid to the monitoring company.
The judges wanted to tell the Supreme Court that tolling provides a reason for people to pay the fees they owe. But the judges withdrew their brief, and the top court wound up ruling against tolling.
Although the probation case was decided last November, and the General Assembly has already revised the law, the Supreme Court heard oral arguments Monday about the issue of briefs.
Former Chief Justice Norman Fletcher was the lawyer representing the Qualifications Commission. He said having judges filing briefs about cases makes it look like they’ve already made up their mind about things they will be ruling on.
“I think our greatest fear here is how the public looks at it and that it is the appearance of impropriety, and the commission came down on the side of integrity and impartiality,” he said.
But Michael Terry, an attorney for the State Court Judges, said judges in all 50 states and in the federal courts routinely file briefs in cases they have an interest in but are not presiding over.
“These are filed all the time. They’re accepted all the time,” he said, adding that having an association of judges file briefs removes the possible complaints that individual judges may betray bias by filing on their own.
Justice Robert Benham said that it may be useful to the Supreme Court to read briefs from judges sometimes. He gave the example of the recent creation of accountability courts for addicts, military veterans and the mentally ill where the operations are different than other courts, and how those judges might have unique insights.
Monday’s arguments were unusual because the high court was hearing a debate about an opinion issued from the Qualifications Commission rather than the appeal of a legal case. Decisions about appeals must be handed down in about four months, but the justices have said in the past that the deadline doesn’t apply to its role as supervisor over the legal profession.
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