Georgia Supreme Court Declines to Issue Ruling on GOP-Backed Commission to Discipline ‘Rogue’ Prosecutors

The location of Georgia Supreme Court, Atlanta, Ga., in January 2021. Google Maps/Screenshot via The Epoch Times

Georgia’s state Supreme Court on Nov. 22 declined to approve rules for a newly established commission empowered to discipline and remove wayward prosecutors.

The rules are focused on Senate Bill 92 (pdf), which was signed into law by Georgia Governor Brian Kemp in May.

The legislation creates the “Prosecuting Attorneys Qualifications Commission” (PAQC) which has the power to investigate, discipline, remove, and cause “involuntary retirement” of elected district attorneys or solicitors-general under specific circumstances, such as if they consistently fail to fulfill their duties.

Senate Bill 92 also clarifies the duties of prosecuting attorneys and includes language specifying that they must review every case where there is probable cause for prosecution.

In signing the bill into law in May, Governor Kemp, a Republican, said the measure was needed to ensure public safety in Georgia amid a rise in progressive prosecutors who Republicans believe are being soft on crime.

“As hardworking law enforcement officers routinely put their lives on the line to investigate, confront, and arrest criminal offenders, I won’t stand idly by as they’re met with resistance from rogue or incompetent prosecutors who refuse to uphold the law,” Mr. Kemp said at the time.

“The creation of the PACQ will help hold prosecutors driven by out-of-touch politics than commitment to their responsibilities accountable and make our communities safer,” he added.

The PAQC subsequently transmitted draft standards of conduct and rules for the Commission’s governance to Georgia’s state Supreme Court, in accordance with the law.

However, in their ruling (pdf) on Wednesday, Justices said they have “grave doubts that adopting the standards and rules would be within our constitutional power.”

‘Grave Doubts’

Because lawmakers hadn’t expressly ordered justices to act, they noted they were refusing to make a ruling on the matter, meaning the commission could not begin operating.

“Accordingly, because we have grave doubts that it would be within our power to take action on the draft standards and rules, and the statute imposes no affirmative duty that would require us to decide conclusively whether such a duty is constitutionally permissible, we decline to take any action on the draft standards of conduct and rules without conclusively deciding whether such action would be constitutionally permissible,” the Justices wrote.

“The question, then, ultimately becomes one of the nature of the power that district attorneys exercise. If district attorneys exercise judicial power, our regulation of the exercise of that power may well be within our inherent power as the head of the Judicial Branch,” the continued. “But if district attorneys exercise only executive power, our regulation of the exercise of that power would likely be beyond the scope of our judicial power.”

Republicans supporting the establishment of the new commission argue it will ensure Georgia continues to maintain an honest and ethical criminal justice system and prevent “far-left prosecutors” who are making communities less safe by failing to prosecute various crimes.

Under Senate Bill 92, the commission would consist of eight members spread across two panels: an investigative panel of five attorneys and a hearing panel of three attorneys who will oversee district attorneys and solicitors general.

According to the legislation, the governor, the Lt. governor, the speaker of the house, and the Senate Committee on Assignments will have the authority to appoint members of the commission.

Under the measure, the commission has the authority to remove district attorneys and solicitors-general if they meet conditions for removal following an investigation into alleged misconduct.

Georgia Gov. Brian Kemp delivers the State of the State address on the House floor of the state Capitol in Atlanta, Georgia, on Jan. 25, 2023. Alex Slitz/AP Photo

District Attorneys Urge Court to Refuse Commission

This includes, among other things, “willful misconduct in office” the “willful and persistent failure to perform his or her duties,” the “conviction of a crime involving moral turpitude,” and conduct that is “prejudicial to the administration of justice.”

It also includes “conduct that brings the office into disrepute” and mental or physical incapacity.

Georgia law dictates that a prosecutor must consider every case for which probable cause exists and can’t exclude categories of cases from prosecution, such as marijuana possession or abortion-related offenses.

However, Democrat lawmakers in Georgia have argued that the bill would create a bias in favor of prosecuting people, and impact the will of local voters in elections of district attorneys.

Four district attorneys, including Sherry Boston, the Democrat district attorney in suburban Atlanta’s DeKalb County, have urged the courts to strike down the measure, arguing that it unconstitutionally infringes on their power.

In a statement Wednesday following the Georgia state Supreme Court’s refusal to approve rules for the new commission, Ms. Boston said it “shines a bright light on the fundamental failings” of the law.

“We are pleased the justices have taken action to stop this unconstitutional attack on the state’s prosecutors,” the district attorney said.

Elsewhere, state Rep. Houston Gaines, an Athens Republican who sponsored Senate Bill 92, said he believes lawmakers could remove the requirement for the court to approve the rules as soon as January, thus allowing the commission to begin operating.

“This commission has been years in the making—and now it has its appointees and rules and regulations ready to go,” Rep. Gaines said. “As soon as the legislature can address this final issue from the court, rogue prosecutors will be held accountable.”

Tom Ozimek and The Associated Press contributed to this report.