Lamar County Magistrate Court.
Arthur Burtz English Magistrate Court Candidate.
Arthur ‘Brutz’ English, a candidate for Magistrate Judge in Lamar County has beaten back a second challenge to his candidacy for magistrate judge – this one from the Judicial Qualifications Commission.
An opinion from the JQC arrived Tuesday morning in Lamar County which ruled English was not eligible to be seated as magistrate judge.
An opinion from the JQC arrived Tuesday morning in Lamar County which ruled English was not eligible to be seated as magistrate judge.
The commission does not govern elections but, in theory, could have challenged English taking the judgeship if he were to win.
Early voting in the race is underway in Lamar County. The other candidates are Paul Kunst, Jeff Mason former Head of Security at Gordon College , Griffin-ite, and Griffin Police officer, also Shannon Williamson.
English fired back at the JQC with a response citing case law.
Late Tuesday, the commission backed down.
English fired back at the JQC with a response citing case law.
Late Tuesday, the commission backed down.
The two rulings from JQC director Chuck Boring were obtained by The Herald Gazette and are published inside this open post.
Original ruling received early on Feb. 23:
Director’s Opinion
From: Charles P. Boring
Date: February 23, 2021
Re: Candidate for Judicial Office – Civil Rights Restored Post-Felony Conviction
Rule 28.A of the Rules of the Judicial Qualifications Commission authorizes “[t]he Director and any other staff member designated by the Director to render . . . a Director’s Opinion concerning his or her interpretation of the Georgia Code of Judicial Conduct as applied to a given state of facts.” A Director’s Opinion is merely the Director’s personal interpretation of the Code as applied to the facts of a given inquiry. It is not binding on the requestor, the Investigative Panel, the Hearing Panel, or the Supreme Court. Director’s Opinions are intended to provide assistance in interpreting and applying the Code. Compliance with a Director’s Opinion is not a defense to any complaint, although reliance on a Director’s Opinion would be considered in mitigation of discipline. This opinion applies to a specific situation only; and it does not establish a general standard.
A Director’s Opinion has been requested regarding whether an individual who is a candidate for the position of Chief Magistrate Judge in an election set for March 16, 2021 can properly hold public office if elected. If he cannot hold the judicial office for which he seeks election, the candidate would run afoul of Code of Judicial Conduct Rule 1.1, which requires that judges and judicial candidates respect and comply with the law. Given the factual scenario provided the Director, along with the below analysis, the candidate would not be eligible to hold the judicial office he seeks via election and his candidacy would therefore violate the Code of Judicial Conduct.
The information provided to the Director shows that the candidate was convicted of a felony in September 2006, had his sentence terminated and completed in May 2012, and then had his civil rights restored in November 2017. The Georgia Constitution provides that a person who has been convicted of a felony involving moral turpitude is not eligible to hold public office, unless that person’s civil rights have been restored and at least ten years have elapsed from the date of the completion of the sentence without a subsequent conviction of another felony. Ga. Const. art. II, § II, ¶ III (emphasis added). According to the Georgia Constitution, an individual is not eligible to hold public office until ten years after the date of completion of the sentence. Although this candidate’s civil rights were restored in 2017, his sentence was terminated and completed in May 2012 which would make him ineligible to hold any public office––including judicial office––until May 2022.
Further, in Georgia all felonies are crimes involving moral turpitude. Rehberger v. State, 502 S.E.2d 222, 223 (Ga. 1998). Thus, the judicial candidate’s felony conviction qualifies as a felony involving moral turpitude that would preclude him from holding public office until at least ten years have elapsed from the completion of his sentence. At this time, pursuant to the facts provided and records available to the Director, only eight years and nine months have elapsed since the completion of his sentence.
Accordingly, the Director’s Opinion is that this candidate is ineligible to hold any public office, including the public judicial office of Chief Magistrate Judge, until May 2022. If this candidate continues to run for judicial office, he will run afoul of the Code of Judicial Conduct, specifically Rule 1.1. This Director’s Opinion is strictly limited to this candidate’s participation in the current election for Chief Magistrate Judge and does not reach an opinion on whether the candidate would be eligible to run for judicial office in the future.
Follow-up opinion received late on Feb. 23:
Amended Director’s Opinion
From: Charles P. Boring
Date: February 23, 2021
Re: Candidate for Judicial Office – Pardon and Civil Rights Restored Post-Felony Conviction
Rule 28.A of the Rules of the Judicial Qualifications Commission authorizes “[t]he Director and any other staff member designated by the Director to render . . . a Director’s Opinion concerning his or her interpretation of the Georgia Code of Judicial Conduct as applied to a given state of facts.” A Director’s Opinion is merely the Director’s personal interpretation of the Code as applied to the facts of a given inquiry. It is not binding on the requestor, the Investigative Panel, the Hearing Panel, or the Supreme Court. Director’s Opinions are intended to provide assistance in interpreting and applying the Code. Compliance with a Director’s Opinion is not a defense to any complaint, although reliance on a Director’s Opinion would be considered in mitigation of discipline. This opinion applies to a specific situation only; and it does not establish a general standard.
A Director’s Opinion has been requested regarding whether a candidate for the position of Chief Magistrate Judge who was previously convicted of a felony involving moral turpitude in the State of Georgia but was subsequently pardoned by the State Board of Pardons and Paroles; had all civil and political rights restored; and all disabilities from the conviction removed, can properly hold public office if elected, consistent with the Code of Judicial Conduct. As the Director’s duty and responsibility according to the JQC Rules is to render opinions concerning the interpretation of the Code of Judicial Conduct as applied to a given state of facts, the Director reminds the candidate that the ultimate interpretation of the law and resolution of any conflicts or discrepancies between Constitutional provisions, statutes, case law, and other legal rules and/or opinions is outside of the JQC’s purview. Because an inquiry into whether the candidate, if elected, could properly hold public office, and holding public office in violation of the law could constitute a violation of the Code of Judicial Conduct, a review of relevant Constitutional provisions, statutes, case law and other legal rules and/or opinions is necessary.
At the time of the issuance of this Opinion, the information provided to the Director shows that the judicial candidate was convicted of the felony offense of Theft by Receiving Stolen Property in September of 2006. The candidate’s sentence was then early terminated, and thus completed in May of 2012. On November 2, 2017, the State Board of Pardons and Paroles, without implying innocence, issued a pardon of the candidate, restored all of his civil and political rights, and removed all disabilities under Georgia law which resulted from the conviction, pursuant to Ga. Const. art. IV, § II, ¶ II.
The current Georgia Constitution provides that a person who has been convicted of a felony involving moral turpitude is not eligible to hold public office, unless that person’s civil rights have been restored and at least ten years have elapsed from the date of the completion of the sentence without a subsequent conviction of another felony involving moral turpitude. Ga. Const. art. II, § II, ¶ III (emphasis added). As such, a person who has been convicted of a felony involving moral turpitude and has had his civil rights restored is still not eligible to hold public office until ten years have passed since the date of completion of the sentence without a subsequent conviction for another felony involving moral turpitude. Although the candidate in this matter was pardoned and his civil and political rights were restored on November 2, 2017, his sentence was early terminated and completed in May of 2012. Ten years have not elapsed since the date of the candidate’s completion of his sentence.
Notably, Ga. Const. art. II, § II, ¶ III does not include any mention of pardons, and certainly does not provide that a pardon excuses one from the requirements of the article. The candidate, however, points to O.C.G.A. 45-2-1(4), which provides that “any person finally convicted and sentenced for any felony involving moral turpitude under the laws of this state…unless restored to all his rights of citizenship by a pardon from the State Board of Pardons and Paroles” is ineligible to hold any civil office. Presumably, the candidate looks to this statute to support the position that because his civil rights have been restored by a pardon from the State Board of Pardons and Paroles, he is eligible to hold civil office. The Georgia Supreme Court has held that “if the Constitution has prescribed the qualifications which allow and prevent eligibility to a public office, the General Assembly cannot by statute add to or take from those conditions of eligibility.” Griggers v. Moye, 246 Ga. 578, 580 (1980).
It is well established within Georgia law that eligibility to hold public office is the general rule and ineligibility the exception. Weems v. Glen, 191 Ga. 388, 391 (1945). But, qualifications to hold public office are clearly subject to reasonable state regulation and restrictions on an individual’s ability to hold public office may be imposed by the Constitution and the law. Parks v. Ash, 168 Ga. 868, 872 (1929). Georgia Attorney General Opinion 92-3 states the following:
The loss of the right to hold public office which results from conviction of a crime is not part of the punishment for the violation of a criminal statute but a collateral consequence that results solely by reason of a constitutional or statutory provision prescribing the eligibility requirements for public office. A public office does not become a right until the individual who claims it can show he is constitutionally and statutorily eligible.
1992 Ga. Op. Att’y Gen. 10. The same Attorney General Opinion (“Opinion”) continues, “the people have chosen to change the public policy of this state so as to disqualify from public office individuals who have been convicted of a crime and pardoned until ten years has lapsed from the completion of their sentence without a subsequent conviction for another felony involving moral turpitude.” Id. The reference in the cited Opinion to people having chosen to change public policy is a specific reference to Ga. Const. art. II, § II, ¶ III’s ten-year lapse requirement, which is a requirement that was added by Amendment in 1990. The Opinion concludes with the finding that “a person seeking to hold any office or appointment of honor or trust in this state must meet the eligibility requirements as now set forth in Article II, Section II, Paragraph III.” Id.
With the aforementioned principles in mind, the Code of Judicial Conduct requires that “judges shall respect and comply with the law.” CJC, Rule 1.1. Assuming a reviewing court finds that the candidate in this matter cannot properly hold public office based upon a complete review and analysis of applicable Constitutional provisions, statutes, case law, and other legal rules and/or opinions, the Director’s resulting opinion would be that such holding of office would likely constitute a violation of the Code of Judicial Conduct, specifically, Rule 1.1. On the other hand, if a reviewing court finds that the candidate in this matter can properly hold public office in accordance with the law, the Director’s resulting opinion would be that such holding of office, standing alone, would likely not constitute a violation of the Code of Judicial Conduct. This opinion does not, however, address or consider any other Code of Judicial Conduct Canons or Rules implicated by the underlying acts that supported the candidate’s initial arrest, conviction, and subsequent pardon, as those issues are not before the Director at this time.
Director’s Opinion
From: Charles P. Boring
Date: February 23, 2021
Re: Candidate for Judicial Office – Civil Rights Restored Post-Felony Conviction
Rule 28.A of the Rules of the Judicial Qualifications Commission authorizes “[t]he Director and any other staff member designated by the Director to render . . . a Director’s Opinion concerning his or her interpretation of the Georgia Code of Judicial Conduct as applied to a given state of facts.” A Director’s Opinion is merely the Director’s personal interpretation of the Code as applied to the facts of a given inquiry. It is not binding on the requestor, the Investigative Panel, the Hearing Panel, or the Supreme Court. Director’s Opinions are intended to provide assistance in interpreting and applying the Code. Compliance with a Director’s Opinion is not a defense to any complaint, although reliance on a Director’s Opinion would be considered in mitigation of discipline. This opinion applies to a specific situation only; and it does not establish a general standard.
A Director’s Opinion has been requested regarding whether an individual who is a candidate for the position of Chief Magistrate Judge in an election set for March 16, 2021 can properly hold public office if elected. If he cannot hold the judicial office for which he seeks election, the candidate would run afoul of Code of Judicial Conduct Rule 1.1, which requires that judges and judicial candidates respect and comply with the law. Given the factual scenario provided the Director, along with the below analysis, the candidate would not be eligible to hold the judicial office he seeks via election and his candidacy would therefore violate the Code of Judicial Conduct.
The information provided to the Director shows that the candidate was convicted of a felony in September 2006, had his sentence terminated and completed in May 2012, and then had his civil rights restored in November 2017. The Georgia Constitution provides that a person who has been convicted of a felony involving moral turpitude is not eligible to hold public office, unless that person’s civil rights have been restored and at least ten years have elapsed from the date of the completion of the sentence without a subsequent conviction of another felony. Ga. Const. art. II, § II, ¶ III (emphasis added). According to the Georgia Constitution, an individual is not eligible to hold public office until ten years after the date of completion of the sentence. Although this candidate’s civil rights were restored in 2017, his sentence was terminated and completed in May 2012 which would make him ineligible to hold any public office––including judicial office––until May 2022.
Further, in Georgia all felonies are crimes involving moral turpitude. Rehberger v. State, 502 S.E.2d 222, 223 (Ga. 1998). Thus, the judicial candidate’s felony conviction qualifies as a felony involving moral turpitude that would preclude him from holding public office until at least ten years have elapsed from the completion of his sentence. At this time, pursuant to the facts provided and records available to the Director, only eight years and nine months have elapsed since the completion of his sentence.
Accordingly, the Director’s Opinion is that this candidate is ineligible to hold any public office, including the public judicial office of Chief Magistrate Judge, until May 2022. If this candidate continues to run for judicial office, he will run afoul of the Code of Judicial Conduct, specifically Rule 1.1. This Director’s Opinion is strictly limited to this candidate’s participation in the current election for Chief Magistrate Judge and does not reach an opinion on whether the candidate would be eligible to run for judicial office in the future.
Follow-up opinion received late on Feb. 23:
Amended Director’s Opinion
From: Charles P. Boring
Date: February 23, 2021
Re: Candidate for Judicial Office – Pardon and Civil Rights Restored Post-Felony Conviction
Rule 28.A of the Rules of the Judicial Qualifications Commission authorizes “[t]he Director and any other staff member designated by the Director to render . . . a Director’s Opinion concerning his or her interpretation of the Georgia Code of Judicial Conduct as applied to a given state of facts.” A Director’s Opinion is merely the Director’s personal interpretation of the Code as applied to the facts of a given inquiry. It is not binding on the requestor, the Investigative Panel, the Hearing Panel, or the Supreme Court. Director’s Opinions are intended to provide assistance in interpreting and applying the Code. Compliance with a Director’s Opinion is not a defense to any complaint, although reliance on a Director’s Opinion would be considered in mitigation of discipline. This opinion applies to a specific situation only; and it does not establish a general standard.
A Director’s Opinion has been requested regarding whether a candidate for the position of Chief Magistrate Judge who was previously convicted of a felony involving moral turpitude in the State of Georgia but was subsequently pardoned by the State Board of Pardons and Paroles; had all civil and political rights restored; and all disabilities from the conviction removed, can properly hold public office if elected, consistent with the Code of Judicial Conduct. As the Director’s duty and responsibility according to the JQC Rules is to render opinions concerning the interpretation of the Code of Judicial Conduct as applied to a given state of facts, the Director reminds the candidate that the ultimate interpretation of the law and resolution of any conflicts or discrepancies between Constitutional provisions, statutes, case law, and other legal rules and/or opinions is outside of the JQC’s purview. Because an inquiry into whether the candidate, if elected, could properly hold public office, and holding public office in violation of the law could constitute a violation of the Code of Judicial Conduct, a review of relevant Constitutional provisions, statutes, case law and other legal rules and/or opinions is necessary.
At the time of the issuance of this Opinion, the information provided to the Director shows that the judicial candidate was convicted of the felony offense of Theft by Receiving Stolen Property in September of 2006. The candidate’s sentence was then early terminated, and thus completed in May of 2012. On November 2, 2017, the State Board of Pardons and Paroles, without implying innocence, issued a pardon of the candidate, restored all of his civil and political rights, and removed all disabilities under Georgia law which resulted from the conviction, pursuant to Ga. Const. art. IV, § II, ¶ II.
The current Georgia Constitution provides that a person who has been convicted of a felony involving moral turpitude is not eligible to hold public office, unless that person’s civil rights have been restored and at least ten years have elapsed from the date of the completion of the sentence without a subsequent conviction of another felony involving moral turpitude. Ga. Const. art. II, § II, ¶ III (emphasis added). As such, a person who has been convicted of a felony involving moral turpitude and has had his civil rights restored is still not eligible to hold public office until ten years have passed since the date of completion of the sentence without a subsequent conviction for another felony involving moral turpitude. Although the candidate in this matter was pardoned and his civil and political rights were restored on November 2, 2017, his sentence was early terminated and completed in May of 2012. Ten years have not elapsed since the date of the candidate’s completion of his sentence.
Notably, Ga. Const. art. II, § II, ¶ III does not include any mention of pardons, and certainly does not provide that a pardon excuses one from the requirements of the article. The candidate, however, points to O.C.G.A. 45-2-1(4), which provides that “any person finally convicted and sentenced for any felony involving moral turpitude under the laws of this state…unless restored to all his rights of citizenship by a pardon from the State Board of Pardons and Paroles” is ineligible to hold any civil office. Presumably, the candidate looks to this statute to support the position that because his civil rights have been restored by a pardon from the State Board of Pardons and Paroles, he is eligible to hold civil office. The Georgia Supreme Court has held that “if the Constitution has prescribed the qualifications which allow and prevent eligibility to a public office, the General Assembly cannot by statute add to or take from those conditions of eligibility.” Griggers v. Moye, 246 Ga. 578, 580 (1980).
It is well established within Georgia law that eligibility to hold public office is the general rule and ineligibility the exception. Weems v. Glen, 191 Ga. 388, 391 (1945). But, qualifications to hold public office are clearly subject to reasonable state regulation and restrictions on an individual’s ability to hold public office may be imposed by the Constitution and the law. Parks v. Ash, 168 Ga. 868, 872 (1929). Georgia Attorney General Opinion 92-3 states the following:
The loss of the right to hold public office which results from conviction of a crime is not part of the punishment for the violation of a criminal statute but a collateral consequence that results solely by reason of a constitutional or statutory provision prescribing the eligibility requirements for public office. A public office does not become a right until the individual who claims it can show he is constitutionally and statutorily eligible.
1992 Ga. Op. Att’y Gen. 10. The same Attorney General Opinion (“Opinion”) continues, “the people have chosen to change the public policy of this state so as to disqualify from public office individuals who have been convicted of a crime and pardoned until ten years has lapsed from the completion of their sentence without a subsequent conviction for another felony involving moral turpitude.” Id. The reference in the cited Opinion to people having chosen to change public policy is a specific reference to Ga. Const. art. II, § II, ¶ III’s ten-year lapse requirement, which is a requirement that was added by Amendment in 1990. The Opinion concludes with the finding that “a person seeking to hold any office or appointment of honor or trust in this state must meet the eligibility requirements as now set forth in Article II, Section II, Paragraph III.” Id.
With the aforementioned principles in mind, the Code of Judicial Conduct requires that “judges shall respect and comply with the law.” CJC, Rule 1.1. Assuming a reviewing court finds that the candidate in this matter cannot properly hold public office based upon a complete review and analysis of applicable Constitutional provisions, statutes, case law, and other legal rules and/or opinions, the Director’s resulting opinion would be that such holding of office would likely constitute a violation of the Code of Judicial Conduct, specifically, Rule 1.1. On the other hand, if a reviewing court finds that the candidate in this matter can properly hold public office in accordance with the law, the Director’s resulting opinion would be that such holding of office, standing alone, would likely not constitute a violation of the Code of Judicial Conduct. This opinion does not, however, address or consider any other Code of Judicial Conduct Canons or Rules implicated by the underlying acts that supported the candidate’s initial arrest, conviction, and subsequent pardon, as those issues are not before the Director at this time.
wkeu would like to thank Walter Geiger and the Barnesville Herald Gazette for their assistance in this news story.