Opposition Brief — O'Neal v. Judicial Qualification Commission

Supreme Vou, \™

| FILED

@ JUL 26 1995 |

In The

Supreme Court of the United States

October Term, 1995

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LINDA O’NEAL,

Petitioner,

Vv.

JUDICIAL QUALIFICATIONS COMMISSION

OF GEORGIA,

Respondent.

+

On Petition For Writ Of Certiorari

To The Supreme Court Of Georgia

¢

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

¢

Mary ANN B. OakLey

Suite 721 a

315 W. Ponce de Leon Avenue

Decatur, GA 30030-2441

(404) 378-5111

Counsel for Respondent

July 26, 1995

COCKLE BRIEF PRINTING 225-6964

CALL COLLECT (ala) 94

-_ a

BEST AVAILABLE COPY

wil 1p fie

QUESTION PRESENTED

Will this Court grant the writ of certiorari to review

the final decision of the Supreme Court of Georgia in a

purely state matter involving nothing more than disci-

plinary proceedings against an inferior court judge for

proven violations of the Georgia Code of Judicial Con-

duct conducted in full compliance with the published

Rules of the Georgia Judicial Qualifications Commission?

ii

PARTIES TO THE PROCEEDINGS

IN THE COURT BELOW

State Disciplinary Agency:

Georgia Judicial Qualifications Commission

Respondent:

Chief Magistrate Linda O’Neal

iii

TABLE OF CONTENTS

Page

SPUR EGE © PRMRIRN EEG oo ks eicin eve occ s evans cue i

PARTIES TO THE PROCEEDINGS IN THE COURT

EE ark eae emi ad Bins 546 PW iW beet oS» Seca vldei ii

I PEs a o's dno coc c twice ses cu ese noes iii

RE PUPS ERED 6 soon enc cece ee cee scenncs iv

SIAR mere Ge EEE CASE. 6c Bes cccessccaces 1

A. PRELIMINARY STATEMENT ................ 1

CB. PRAPCER ieee BELOW .. 2... icc ec ceweeeess 3

OG a BS TT ty). re eee 4

SUMMARY OF THE ARGUMENT ................. 7

REASONS FOR DENYING THE PETITION......... 7

ee 8 | eS or ee eee eee 9

APPENDIX (Indexed in separate volume)

iv

TABLE OF AUTHORITIES

CASES

Hanson v. Kent, 263 Ga. 124, 428 SE2d 785 (1993)

McCorquodale v. Stynchcombe, 239 Ga. 138, 236

A GD CORETD 6 co xncevedsa wens ceepeanetasees

CONSTITUTIONAL PROVISIONS

Article VI, Sec. VII, Par. VI, VII and VIII, 1983

(segweta Comte. cis ac acai tang s c5b-00¥'s Kes

CopEs AND RULES

Georgia Code of Judicial Conduct...............

Rules of the Judicial Qualifications Commission.

Rules of the Supreme Court of the United States...

TREATISES AND ARTICLES

Robert L. Stern et al., Supreme Court Practice (7th

Os: FIRS sk os vino ances raha caehn i eee eases

State Court Decisions and The Supreme Court, 31

Penn. Bar Assn. Q., 393, 399-400 ..............

No. 95-18

.

In The

Supreme Court of the United States

October Term, 1995

”

LINDA O’NEAL,

Petitioner,

JUDICIAL QUALIFICATIONS COMMISSION

OF GEORGIA,

Respondent.

’

On Petition For Writ Of Certiorari

To The Supreme Court Of Georgia

+

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

¢

STATEMENT OF THE CASE

A. Preliminary Statement

It should be noted that, as of July 24, 1995, Petitioner

has not notified Respondent or its counsel of the date of

filing and of the docket number of this case in the manner

required by Supreme Court Rule 12.1, nor has any such

notice been served as required by Rule 29. Counsel for

Respondent did receive three (3) copies of the Petition by

mail on June 29, 1995 and, by subsequent telephone calls

to the office of the Clerk of this Court, ascertained the

1

information required by the above-cited Rule and is thus

in position to timely file this Brief in Opposition.

The Georgia Judicial Qualifications Commission (the

“Commission”) was created by Constitutional amend-

ment in 1972 and is empowered to conduct investigations

and hearings with respect to complaints of misconduct by

Georgia judges. The Commission is composed of two (2)

judges appointed by the Supreme Court of Georgia; three

(3) lawyers, each with at least ten years experience,

appointed by the State Bar of Georgia; and two (2) non-

lawyers appointed by the Governor. These provisions

have been carried forward in successive Constitutions,

and a copy of the current provisions, Art. VI, §VII, {¥ VI, |

VII and VIII of the 1983 Georgia Constitution, as

amended, is appended at App. 1. The Commission func-

tions under rules promulgated by the Supreme Court of

Georgia. The Rules applicable to this proceeding, as

amended, are published in Ga. Ct. & Bar Rules, p. 14-1

and are appended at App. 5. Among other things, the

Commission may, after investigation and hearing, recom-

mend to the Supreme Court of Georgia the removal, disci-

pline or retirement of a judge found to be in violation of

the Georgia Code of Judicial Conduct, but the final deci-

sion lies with the Supreme Court of Georgia, which may

accept, reject or modify any recommendation from the

Commission. The Georgia Code of Judicial Conduct is

published in the Ga. Ct. & Bar Rules, p. 13-1, and is

appended at App. 40.

The grounds upon which a Georgia judge may be

disciplined, removed or retired from office, as stated in

the Georgia Constitution, include, among others, (i) will-

ful misconduct in office; (ii) willful and persistent failure

NEE |

to perform duties; and (iii) conduct prejudicial to the

administration of justice which brings the judicial office

into disrepute. Art. VI, §VII, { VII, 1983 Georgia Consti-

tution. (App. 1).

B. Proceedings Below

Acting pursuant to its Rules and upon receipt of

some fifteen (15) complaints from citizens of Peach

County, Georgia, expressing concern and, in some

instances, outrage over Petitioner’s conduct, the Commis-

sion conferred privately with Petitioner (to no avail);

conducted a full investigation; and ultimately filed For-

mal Proceedings. The Notice of Formal Proceedings is not

reported but is appended at App. 75.

After a two-day evidentiary hearing and review of a

445 page transcript and 174 exhibits, the Commission

filed its Findings and Recommendations with the

Supreme Court of Georgia. These Findings and Recom-

mendations are not reported, but are appended to the

Petition for Writ of Certiorari.! Following the denial of

Petitioner’s Request for Oral Argument, and after consid-

eration of the “Petition and Brief in Objection,”? the

Supreme Court of Georgia, in a 5 to 1 decision (Chief

Justice Hunt not participating), accepted the Findings and

Recommendations of the Commission and ordered Peti-

tioner removed from office.* Petitioner’s Motion for

1 Petition for Writ of Certiorari, App. at A12-29.

2 Petition for Writ of Certiorari, App. at A53-89.

3 Petition for Writ of Certiorari, App. at Al-7.

Reconsideration* was denied by Order dated March 30,

1995. It should be noted that both of Petitioner’s plead-

ings were signed by two (2) duly licensed attorneys, one

of whom participated in the representation of Petitioner

at the Formal Hearing. More importantly, it was not until

the filing of the Motion for Reconsideration that Peti-

tioner first attempted to assert the so-called constitutional

issues which are now alleged to be so exceptional and

novel as to warrant the grant of this writ by this Court.

C. Applicable Facts

No useful purpose would be served by attempting to

detail each and every misstatement, omission and exag-

geration contained in Petitioner’s Statement of Facts. Suf-

fice it to say that the factual basis upon which the

decision is premised is plainly and fully set forth in the

Findings and Recommendations of the Commission filed

in the Georgia Supreme Court5; is supported, in every

instance by cited transcript references; and was obviously

sufficient to convince the Supreme Court of Georgia that

the Commission had carried its burden of proving the

charges by clear and convincing evidence.®

Nevertheless, and in keeping with the admonition

contained in Supreme Court Rule 15.1, the Commission is

compelled to set forth additional facts relating to Peti-

tioner’s alleged claim of inadequate legal counsel at the

hearing before the Commission. Rather than recite the

* Petition for Writ of Certiorari, App. at A33-51.

> Petition for Writ of Certiorari, App. at A15-23.

© Petition for Writ of Certiorari, App. at A3, | 1, A7, FN5.

a

factual and procedural history which led the Supreme

Court of Georgia to deny promptly without opinion Peti-

tioner’s Emergency Motion to Continue the scheduled

pre-hearing conference, as well as the Formal Hearing

(which history is omitted from the instant application),

this Court is respectfully referred to the Commission’s

response to said Motion filed in the Supreme Court of

Georgia and appended at App. 79, particularly the letter

from the designated Presiding Judge to counsel for Peti-

tioner dated September 20, 1994 appended at App.

101-102. As more fully shown in this pleading, counsel

for Petitioner had been granted repeated continuances;

was advised at least nine (9) days prior to the Formal

Hearing that no further continuance would be granted;

and the two attorneys who actually represented Peti-

tioner at the hearing had both been involved in previous

proceedings in this matter.

Following Supreme Court denial of the Motion to

Continue, Petitioner’s counsel attended the pre-hearing

conference and gave no indication that further efforts to

seek a continuance were anticipated; confirmed a pre-

vious stipulation by counsel to use the same documents

as those to be offered by the Commission; and was given

all the information he sought. A transcript of pertinent

portions of the pre-hearing conference is appended at

App. 105.

Subsequently, and in response to Petitioner’s oral

Motion for Continuance at the outset of the Formal Hear-

ing, the Commission offered to continue the hearing on

condition that Petitioner take a temporary leave of

absence during the pendency of the requested continu-

ance. Continuing to demonstrate the defiant and confron-

tational attitude which essentially led to these

proceedings, Petitioner rejected this offer and went for-

ward without further protest or objection. An excerpt

from the Formal Hearing transcript detailing this ruling

and Petitioner’s decision to proceed is appended at App.

135.’

Viewed in this light, Petitioner’s misstatements and

omissions become transparent and her claim of inade-

quate counsel fails.

Additionally, under well-established Georgia law, the

grant or denial of a continuance is within the discretion

of the trial court, and such decisions will not be inter-

fered with unless it clearly appears that the judge abused

his discretion. Hanson v. Kent, 263 Ga. 124, 428 SE2d 785

(1993); McCorquodale v. Stynchcombe, 239 Ga. 138, 236

SE2d 486 (1977).8 Petitioner has made no such showing

and the mere denial of a Motion to Continue simply

7 It also should be noted that yet another experienced attor-

ney who had previously assisted in representing the Petitioner

joined the proceeding at this time and actively participated in

the hearing until such time as he requested permission to be

excused. App. 118.

8 In Kent, a pro se plaintiff requested a continuance in order

“to prepare a proper case in this action,” 263 Ga. at 124, and in

McCorquodale, appellant argued that denial of his oral motion

for a continuance during his habeas hearing was a violation of

his constitutional rights to due process and effective assistance

of counsel under the Sixth and Fourteenth Amendments, 239

Ga. at 139.

cannot successfully be converted into a legitimate claim

of inadequate counsel.

Simply stated, Petitioner was ably represented at

every stage of this proceeding by duly licensed, well-

qualified and experienced members of the State Bar of

Georgia; the denial of her motion for continuance by both

the Supreme Court of Georgia and the Commission was

not an abuse of discretion; and her claim of inadequate

counsel is untenable and insufficient to warrant the

granting of this petition.

SUMMARY OF THE ARGUMENT

The Petition for Writ of Certiorari should be denied

because the case involves nothing more than a state disci-

plinary proceeding conducted under applicable and con-

trolling state procedures and raises no special and

important reason to justify United States Supreme Court

review.

Further, there is no conflict among the United States

Courts of Appeal or the state courts of last resort on the

questions presented.

¢

REASONS FOR DENYING THE PETITION

Petitioner asserts three (3) reasons for granting the Writ,

the last of which involving the alleged inadequacy of counsel

has been discussed hereinabove. (infra pp. 4-7).

Seizing upon language found only in a single dissent-

ing opinion, Petitioner asserts two (2) additional reasons

which are alleged to raise what are called (i) issues of

“exceptional legal importance” to judges who express

public opinion about social, political or governmental

matters and (ii) a “novel issue” of great legal significance

for judges who are called before disciplinary bodies on

charges of misconduct.

As previously noted, neither of these so-called consti-

tutional issues were raised until the filing of Petitioner’s

last-ditch Motion for Reconsideration in the Georgia

Supreme Court. That Court apparently considered such

arguments to be so lacking in merit that said Motion was

denied within three (3) days of its filing.

Furthermore, neither of these asserted reasons pre-

sent a constitutional issue of great importance. Rather, an

inferior court judge has been judged guilty of numerous

violations of a state code of judicial conduct by a consti-

tutionally created state commission composed of state

judges, lawyers and lay persons in a proceeding con-

ducted in full compliance with applicable rules, and that

decision has been affirmed and reaffirmed by the highest

court of the State of Georgia.

It is thus obvious that this matter involves a state

disciplinary commission acting pursuant to state consti-

tutional provisions in a proceeding against a state judge

for alleged judicial misconduct. As thus viewed, the con-

stitutional issues belatedly sought to be raised to invoke

the jurisdiction of this Court fall far short of those gener-

ally required by this Court. Robert L. Stern, et al., Supreme

Court Practice, §4.12, pp. 185-187.

Finally, and assuming arguendo that the instant peti-

tion is sufficient to survive the jurisdictional tests stated

| j

by Justice Brennan, State Court Decisions and The Supreme

Court, 31 Penn. Bar Assn. Q., 393, 399-400 (1960), the

petition nevertheless does not fall within any of the

eleven (11) considerations generally considered to be rel-

ative to the appropriateness of exercising the discretion-

ary certiorari jurisdiction of this court. Robert L. Stern, et

al., Supreme Court Practice, §4:25, pp. 208-210.

In sum, the issues sought to be raised simply do not

rise to the level of national importance which warrants

review by this Court. Rather, the issues are purely local in

nature; arise only in extremely isolated cases; and the

well-reasoned opinion of the Georgia Supreme Court con-

struing and applying provisions of a Code of Judicial

Conduct promulgated by that Court provides ample

guidance to other Georgia judges subject to the disciplin-

ary powers of the Georgia Supreme Court.

“

CONCLUSION

For all these reasons, the Petition for the Writ of

Certiorari should be denied.

Mary ANN B. OakLey

Suite 721

315 W. Ponce de Leon Avenue

Decatur, GA 30030-2441

(404) 378-5111

Counsel for Respondent