In Re Inquiry Concerning a Judge No. 94-70

454 S.E.2d 780, 265 Ga. 326, 95 Fulton County D. Rep. 1100, 1995 Ga. LEXIS 153
CourtSupreme Court of Georgia
DecidedMarch 17, 1995
DocketS95A0967
StatusPublished
Cited by15 cases

This text of 454 S.E.2d 780 (In Re Inquiry Concerning a Judge No. 94-70) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Inquiry Concerning a Judge No. 94-70, 454 S.E.2d 780, 265 Ga. 326, 95 Fulton County D. Rep. 1100, 1995 Ga. LEXIS 153 (Ga. 1995).

Opinions

Per curiam.

Following an investigation and formal hearing, the Judicial Qualifications Commission (“JQC”) recommended that respondent Judge Linda O’Neal, Chief Magistrate of Peach County, be removed from office. We accept the recommendation.

The JQC received 15 complaints regarding the conduct of Judge O’Neal. The JQC investigated the complaints and issued a Notice of Formal Proceedings, which set forth six separate charges.

The evidence before the Commission showed that O’Neal had won a contested election for the office of Chief Magistrate of Peach County, unseating the incumbent of 16 years. The evidence also showed a pattern of an uncooperative working relationship between O’Neal and the County Board of Commissioners.

The evidence relating to the most serious charges showed that on September 13, 1993, O’Neal issued four separate orders to the sheriff and each of his deputies. Collectively, these orders required the sheriff and his deputies to comply with the provisions of OCGA § 15-10-100 (b), which requires a sheriff to perform the duties of constable if no provision is made for appointment of constables, and OCGA § 15-10-102, which sets forth the powers and duties of constables.1 O’Neal sent the orders to Deputy Deese at the Sheriffs Department to serve. [327]*327When Deese refused to serve the orders, O’Neal issued an order directing the coroner to serve the orders. The coroner responded by a letter that he was unauthorized to serve the orders. O’Neal then issued a rule nisi to determine whether Deese should be held in civil contempt and a rule nisi for criminal contempt against the coroner. At the civil contempt hearing on September 23, 1994, O’Neal stated she was the plaintiff and called and cross-examined Deese. O’Neal verbally issued the orders to the sheriff’s deputies, the majority of whom were in attendance, and stated that Deese was purged of contempt. On September 24, 1994, O’Neal issued an indefinite stay with respect to the coroner’s hearing.

Later that same day, at a called meeting, the Board publicly read a letter to O’Neal in which the Board stated,

We have decided to give you 30 days to see if you can get your act together. If you continue with your present attitude, causing problems and conflict in the county government, we will have no choice but to recind [sic] your salary increase and return you to the original salary granted to you by the previous commissioners.2

Relying upon this statement, O’Neal obtained felony warrants from a magistrate from a distant county, two months after this statement was made, against the members of the Board for intimidation of a court officer in violation of OCGA § 16-10-97. O’Neal held the warrants in her office for approximately a week before having them served. The District Attorney of Houston County was appointed special prosecutor and ultimately dismissed the warrants. Following the dismissal, O’Neal issued a lengthy public statement justifying her actions in seeking the warrants and detailing her disputes with the board of commissioners and the sheriff.

The Judicial Qualifications Commission, following a hearing, issued its findings and recommendations. The Commission found that four charges had been proven by clear and convincing evidence,3 that such conduct constitutes a violation of Canons 1, 2 (A) and (B), 3B (4) and (7), and 3E (1), and recommended that O’Neal be removed from office.

1. Discipline may be imposed only upon a showing by clear and convincing evidence, JQC Rule 7 (e), that the judge engaged in “will[328]*328ful misconduct in office, or willful and persistent failure to perform the duties of a judge, or habitual intemperance, or conduct prejudicial to the administration of justice which brings the judicial office into disrepute.” JQC Rule 4 (b).4 We interpret “willful misconduct in office” to mean actions taken in bad faith by the judge acting in her judicial capacity. “Conduct prejudicial to the administration of justice” refers to inappropriate actions taken in good faith by the judge acting in her judicial capacity, but which may appear to be unjudicial and harmful to the public’s esteem of the judiciary. Prejudicial conduct may also refer to actions taken in bad faith by a judge acting outside her judicial capacity. Whether discipline should be imposed and the severity of discipline must be

determined through a reasonable and reasoned application of the text [of the Code of Judicial Conduct] and should depend on such factors as the seriousness of the transgression, whether there is a pattern of improper activity, and the effect of the improper activity on others or on the judicial system.

Georgia Code of Judicial Conduct, Preamble (1994). With these principles in mind, we examine the allegations of misconduct.

2. O’Neal’s orders of September 13, 1994 directed the sheriff and his deputies to perform the very duties the law imposes. O’Neal contends that the orders address her concern over a lack of courtroom security, delays by the sheriff in serving warrants and in turning over money collected by the sheriff’s department. She characterizes the orders as a “remedial form of notice” to make her court officers aware of their responsibilities. She also contends that such orders are authorized by Ga. Const, of 1983, Art. VI, Sec. I, Par. IV and OCGA § 15-1-3 (4), which provides that every court has the power “to control . . . the conduct of its officers.”

Paragraph four of OCGA § 15-1-3 is a codification of a power inherent in the courts. Lowe v. Taylor, 180 Ga. 654, 658 (180 SE 223) (1935). The inherent power of a court should not be used as a weapon in political power struggles, but it “must be carefully preserved” and “cautiously used.” Grimsley v. Twiggs County, 249 Ga. 632, 634 (292 SE2d 675) (1982). Reliance upon a court’s “inherent power” is inappropriate and unnecessary where specific remedies exist. See McCor-kle v. Judges of Superior Court, 260 Ga. 315, 316 (392 SE2d 707) (1990) (“inherent power is not a sword but a shield”).

[329]*329The appropriate remedy to require the proper performance by an official of a statutorily imposed duty is to seek a writ of mandamus. See Grimsley, 249 Ga. at 632 (“[m]andamus is the proper ‘remedy to compel a public officer or a county board to perform a duty imposed by law’ ”), quoting Mattox v. Bd. of Ed., 148 Ga. 577, 581 (97 SE 532) (1918); OCGA § 9-6-20. Although these orders appear to be in the nature of mandamus, a magistrate court does not have the power to issue writs of mandamus, Ga. Const. 1983, Art. VI, Sec. I, Par. IV, nor was the required notice given or hearing held, OCGA § 9-6-27.

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In Re Inquiry Concerning a Judge No. 94-70
454 S.E.2d 780 (Supreme Court of Georgia, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
454 S.E.2d 780, 265 Ga. 326, 95 Fulton County D. Rep. 1100, 1995 Ga. LEXIS 153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-inquiry-concerning-a-judge-no-94-70-ga-1995.