OPINION NO. 230
DOCKET NO. 99-7

An appointed part-time Municipal Court Judge requests an opinion on the propriety of campaigning for and if elected, simultaneously serving in the Georgia General Assembly.

Insofar as the issues raised by this request may involve the interpretation and application of applicable statutes such issues are for the courts and beyond the jurisdiction of this Commission. Insofar as the issues involve the Judicial Canons, they are addressed as follows:

Canon 7A(3) of the original Georgia Code of Judicial Conduct promulgated in 1973 expressly required a judge to resign upon becoming a candidate for a non-judicial office in either a party primary or a general election.

Relying upon this provision, the Commission, in Opinion No. 26 (June 8, 1978) concluded that irrespective of a 1976 Constitutional provision expressly permitting a Justice of the Peace to serve as a member of the General Assembly, it was nevertheless inappropriate for such a judicial officer to simultaneously serve in the General Assembly. Subsequently, however, the Supreme Court held 7A(3) to be inapplicable because the Constitution expressly allowed such service: In Re: Inquiry Concerning a Judge 250 Ga. 796 (1983).

This "resign to run" requirement was eliminated when the Code of Judicial Conduct was amended in 1984 and has not reappeared in any subsequent amendments. Consequently, except insofar as the 1983 Constitutional "resign to run" requirement set forth in Article II, Section 2, Paragraph 5 might be applicable, there currently appears to be no legal or ethical prohibition against dual service as a part-time Judge and a Member of the General Assembly. Nevertheless, such a conclusion does not eliminate other potential ethical issues which are addressed below.

While unopposed in the Primary election, the requesting Judge recognizes that during campaigning for the general election he will need to seek campaign contributions, answer surveys, and express opinions on such matters as crime, law enforcement, juveniles and other ancillary matters that may come before the Court. He further recognizes the potential conflict of interest and has indicated that he will seek a leave of absence from his judgeship following the Primary election.

As noted by the Reporter for the Model Code of Judicial Conduct (after which the 1973 Georgia Code of Conduct was patterned), the 7A(3) "resign to run" provision was originally felt necessary to avoid: (i) the appearance of impropriety; (ii) trading on the prestige of judicial office; and (iii) embroiling the court in political controversy.

Although since deleted from our Code, it is nevertheless the opinion of this Commission that the same reasons, together with longstanding separation of power principles requiring that the judiciary function independently of the executive and legislative branches, demand absolute and complete separation of the dual positions here involved during the campaign. Hence, the legislative candidate should at no time be publicly identified as a Judge in campaign literature, newspaper advertisements or media appearances; should not preside or otherwise serve as Judge during the course of the campaign; and should not otherwise use the power and prestige of the judicial office to further the candidacy for the General Assembly.

In sum, there appears to be no express ethical prohibition against dual service as a part-time Judge and a member of the General Assembly. However in campaigning for the legislative position, the prestige of the judicial position must never be misused, traded upon, nor allowed to become embroiled in political controversy.

This 24th day of July 1998.
JUDICIAL QUALIFICATIONS COMMISSION
By John E. James, Chair