Inquiry Concerning Judge Cary Hays III

868 S.E.2d 792, 313 Ga. 148

• Court: Supreme Court of Georgia
• Decided: February 1, 2022
• Docket: S21Z1181
• Status: Published

Opinion

313 Ga. 148 FINAL COPY

S21Z1181. INQUIRY CONCERNING JUDGE CARY HAYS III.

PER CURIAM.

This judicial discipline matter is before the Court on an

agreement between the Director of the Judicial Qualifications

Commission (“JQC”) and Cary Hays III, Chief Magistrate of

Crawford County, to resolve the formal charges brought against

Judge Hays arising from a physical altercation with a defendant

who appeared before him. The agreement calls for Judge Hays to

serve an unpaid, 30-day suspension to be followed by a public

reprimand. Pursuant to JQC Rule 23, the agreement was submitted

to the JQC’s Hearing Panel, which voted 2-1 to accept it, and then

filed it with this Court. Because the record and the limited relevant

precedent we have found support the proposed discipline, we accept

the agreement and order that Judge Hays be suspended for 30 days

without pay and be publicly reprimanded for his violations of the

Georgia Code of Judicial Conduct. According to the formal charges, the allegations of which Judge

Hays admits are true, Judge Hays engaged in a verbal and physical

altercation with a defendant. The defendant had appeared before

Judge Hays for a first appearance hearing held in the jail complex

in December 2020. The defendant began cursing at Judge Hays in

response to the judge’s bond determination. The defendant

continued to curse at Judge Hays while being led out of the hearing.

Judge Hays verbally engaged with the defendant and then followed

him into a hallway, at which time Judge Hays exchanged a few more

words with the defendant before grabbing him and pushing him

against the wall. The defendant was handcuffed and his feet

shackled and was accompanied by a law enforcement officer. At no

time did the defendant physically threaten Judge Hays or anyone

else or attempt to flee. The defendant was not physically injured.

The JQC investigated the incident and charged Judge Hays

with three violations of the Georgia Code of Judicial Conduct: Rule

1.1, which requires that judges “respect and comply with the law”;

Rule 1.2 (A), which requires that judges “act at all times in a manner

2 that promotes public confidence in the independence, integrity, and

impartiality of the judiciary”; and Rule 2.8 (B), which requires that

judges be “patient, dignified, and courteous to litigants[.]”

As JQC Rule 23 allows, Judge Hays and the Director of the

JQC entered into an agreement to resolve the formal charges with a

30-day unpaid suspension to be followed by a public reprimand, and

they submitted the proposed resolution to the JQC Hearing Panel.

By a 2-1 vote, the Hearing Panel recommends that we accept.1

In authorizing this resolution and submitting it to this Court

for approval, the Hearing Panel considered past disciplinary cases

in which public reprimands were sought and rightly concluded that

a public reprimand alone was an insufficient sanction for Judge

Hays’s conduct. The Hearing Panel did not find an analogous

disciplinary case in Georgia, and we also have not found one. The

Hearing Panel points to a disciplinary case in Mississippi with more

egregious facts. See Miss. Comm. on Judicial Performance v. Guest,

1 The dissenting Hearing Board member did not articulate explicitly in

his dissent what sanction, if any, he believes would be appropriate, but stated that the proposed agreement neither educates judges nor protects the public. 3 717 S2d 325 (Miss. 1998). There, a judge was fined and suspended

for 90 days, without pay, for repeatedly hitting a defendant in a

crowded courtroom and directing profanity at him; the judge’s use of

profanity in that case was particularly serious given that the judge

had just found the defendant guilty of the offense of public profanity.

See id. at 327 & n.2. Moreover, that case involved allegations of

racially derogatory remarks by the judge both in and out of the

courtroom, and the judge did not readily acknowledge the

seriousness of his attack on the defendant; he argued that it was

necessary to protect the court clerk, notwithstanding that the clerk

he purported to protect had to pull him away from the handcuffed

defendant. See id. at 327.

The proposed sanction is one of the most significant we have

ever imposed, short of removal from office. And given the

circumstances, it would have to be. We agree that the facts that

Judge Hays admits constitute violations of each of the three rules

charged. And the way he violated those rules is particularly serious.

It is a grave violation for a judge to use violence against any person

4 appearing before him, except in self-defense or defense of others,

which was not the situation here. The rule of law enables our society

to resolve disputes without resort to force. When a judge uses force

against someone appearing before him, that judge thus undermines

the rule of law. It removes the judge from the role of neutral arbiter.

Plainly, a mere reprimand is insufficient.

At the same time, we do not see the necessity for removal from

judicial office.2 The incident — grave as it was — was momentary,

and no actual injury was inflicted. And, as noted by the Hearing

Panel’s majority, several mitigating circumstances exist. Judge

Hays is a well-respected member of the community who has served

his country honorably as a member of the military. He lacks a prior

disciplinary history, and he has forthrightly accepted full

2 Some of us might impose a longer suspension of 60 or 90 days if we had

the discretion to do more than simply accept or reject this proposed discipline by consent. But Rule 23 limits our choices to accepting the discipline by consent and imposing a 30-day suspension or rejecting it and returning the case for further proceedings. See JQC Rule 23 (D). Rejecting the discipline by consent merely to impose a slightly longer suspension would substantially delay the resolution of this matter with little benefit. We also consider it appropriate to afford some amount of deference to the determination of the JQC’s Investigative Panel ⸺ which would have to prosecute this case if it proceeded ⸺ that this resolution is sufficient. 5 responsibility for this isolated, but serious, incident.

Accordingly, the Court accepts the agreement and orders that

Judge Hays be suspended without pay for 30 days and receive a

public reprimand upon his return to the bench. The public

reprimand shall be imposed on him in person in open court by a

judge designated by this Court. Upon issuance of this opinion, all

filings made in this Court in this matter shall be unsealed. See JQC

Rule 23 (D).

Discipline by consent accepted. Thirty-day suspension and public reprimand. All the Justices concur, except Colvin, J., disqualified.

Decided February 1, 2022.

Judicial discipline.

Charles P. Boring, Robert C. McBurney, for Judicial

Qualifications Commission.

Cary Hays III, pro se.