Gillis v. City of Waycross , 247 Ga. App. 119 ( 2000 )

Mikell, Judge,

concurring specially.

Although I fully concur in the result and judgment, I write separately to mention tbe constitutional dimension to the issue of judicial disqualification. Superior court judges in Georgia are elected to four-year terms by the voters of the judicial circuit in which each judge resides and serves. See Ga. Const. 1983, Art. VI, Sec. VII, Pars. I and II (d). By casting their votes, the citizens of a judicial circuit solemnly select a man or woman who will sit in judgment of matters which may be of vital concern to each inhabitant of the community. The peopie’s choice of their judge is not a matter lightly to set aside for subjective or insubstantial reasons, and we do not do so in this case.

One might argue that a judicial disqualification does not deny the voters their right to decide who will sit on the bench in most cases. It might be said that a disqualification merely removes a judge in one case and can be accomplished only on rare occasions. But the voters have selected a particular judge to preside over all cases within his or her jurisdiction. Judges are not replaceable at will. When the chief judge or the district administrative judge of a judicial circuit replaces a disqualified judge, he or she arguably usurps the right of the citizens to have the judge they voted into office to adjudicate the case. See Uniform Superior Court Rule 25.4.

It was established in Georgia law as early as 1801 that an elected judge could be removed on certain statutory grounds. See Cobb’s Digest of the Statute Laws of Georgia 460, Sec. 40 (1851), citing Ga. L. 1801. Therefore, the right of the citizens to elect their judges has long been subject to the possibility that the judge could be disqualified in a particular instance by a statutory procedure, brought on narrow, objective grounds. See OCGA § 15-1-8. But the addition in 1974 of more subjective grounds via the Code of Judicial Conduct significantly broadened the opportunities to disqualify the presiding judge. See generally Hornsby v. Campbell, 267 Ga. 571 (480 SE2d 189) (1997); Stephens v. Stephens, 249 Ga. 700 (292 SE2d 689) (1982).

To be sure, the Canons of Judicial Ethics, as contained in the Code of Judicial Conduct, are highly commendable. A strict adherence to them by every judge is essential to our integrity and to the public’s confidence in Georgia’s system of justice. But it must be recognized that they may, in rare instances, conflict significantly with the right of the citizens to choose who sits in judgment over them. The automatic provisions of USCR 25.3 do not recognize that conflict.

Nor do the rules take into account the delays occasioned in rural circuits by the filing of disqualification motions. In most multi-judge, urban judicial circuits, hearing motions to disqualify is rare. Judges usually recuse themselves voluntarily at the first suggestion of the appearance of impropriety. If such a motion must be heard and decided and a new judge substituted, these tasks can be accomplished in a multi-judge circuit in a matter of days. A motion to disqualify filed in a rural circuit, however, can delay an important trial for months when the allegations of the affidavit required by USCR 25.3 are sufficient, even if they are false or imaginary. As explained by former Supreme Court Chief Justice Harold G. Clarke, “[p]er se disqualifications are not only harsh, they most often lead to impractical results.” Stephens, supra at 704 (Clarke, J., dissenting).

The case at bar concerns rezoning, the disposition of public land, and a possible advantage to a for-profit corporation. The public policies underlying Georgia’s decision to elect its judges would not seem to be strongly implicated in this dispute. But the next motion to disqualify may be brought in a death penalty case, or a dispute involving school prayer, or perhaps even an election contest regarding presidential electors. In such controversial cases, the people’s choice of judge, along with his or her unique characteristics, should not be lightly discarded.

Decided December 1, 2000. John M. Hatfield, for appellants. Kopp & Conner, Neal L. Conner, Jr., Dillard, Bower & Crowley, Terry A. Dillard, Scott C. Crowley, Kenneth E. Futch, Jr., for appellees.