In the Supreme Court of Georgia

Decided: March 15, 2023 

S21Z0595. INQUIRY CONCERNING JUDGE CHRISTIAN 

COOMER. 

 PER CURIAM. 

This long-delayed judicial discipline matter comes to us after a 

full hearing and the Judicial Qualifications Commission (“JQC”) 

Hearing Panel’s recommendation to remove Judge Christian 

Coomer from his seat on the Court of Appeals. We conclude that the 

Hearing Panel made at least two critical legal errors that prevent us 

from resolving the matter on this record. Accordingly, we remand for 

the Hearing Panel to make new findings in the light of the law as it 

actually exists, and to do so quickly.

1. Introduction.

In late 2020, the JQC brought formal charges against Judge 

Coomer. The charges, as later amended, comprise 36 counts alleging 
2

that Judge Coomer violated three provisions of the Georgia Code of 

Judicial Conduct (“the Code”), in several ways. First, he allegedly 

violated several Georgia Rules of Professional Conduct in his 

capacity as a lawyer in dealings with a client including allegations 

of substantial “dishonesty, deceit, and misrepresentation.” Second, 

he allegedly used campaign funds for impermissible purposes and 

failed to disclose certain expenditures. And third, he allegedly 

engaged in several transactions — both campaign-related and 

personal — in which he declared a “fictitious” transfer to his 

campaign account and misrepresented his liabilities and assets in a 

mortgage application. Many of the allegations involved conduct that 

occurred exclusively before Judge Coomer was a judge or judicial 

candidate. A few days after formal charges were filed, Judge Coomer 

was suspended from office pending resolution of this matter.

In 2021, the JQC Hearing Panel rejected Judge Coomer’s 

arguments that the JQC lacked jurisdiction over conduct that 

occurred before Judge Coomer was a judge or judicial candidate. And 

in late 2022, nearly two years after the charges had been filed, the 
3

JQC finally tried Judge Coomer in a hearing held over a threemonth period. 

On January 30 of this year, the Hearing Panel submitted its 

Report and Recommendation to this Court. The Hearing Panel 

found that the Director failed to prove the counts alleging 

dishonesty, deceit, misrepresentation, and fictitious transfers. But 

the Hearing Panel found that the Director proved most of the 

remaining counts, and that Judge Coomer’s violations were 

committed either knowingly or in ignorance of the law, and that 

neither option was acceptable. The Hearing Panel recommended 

that we remove Judge Coomer from office.

In so doing, the JQC — both the Director and the Hearing 

Panel — made two critical legal errors that prevent us from 

resolving this matter now. First, both the Director and the Hearing 

Panel determined that the JQC has “jurisdiction” over conduct that 

occurs before a person becomes a judge or judicial candidate, and 

thus could pursue counts against Judge Coomer regarding prejudicial conduct. That is wrong. The Code of Judicial Conduct plainly 
4

applies only to conduct by judges and judicial candidates while they 

are judges or judicial candidates — indeed, the JQC acknowledged 

as much in two separate filings with this Court, not long before filing 

formal charges against Judge Coomer. Inexplicably, however, 

neither the Director’s argument to the Hearing Panel nor the 

Hearing Panel’s conclusion even acknowledges the JQC’s previous 

position; the Director’s only acknowledgement of that position came

after Judge Coomer raised the issue last week, and still fails to 

engage with the relevant text. The Code of Judicial Conduct simply 

has no application to conduct by people who are not yet judges or 

judicial candidates, even if they later become a judge or judicial 

candidate.

Second, both the Director and the Hearing Panel failed to 

understand the circumstances in which the Constitution and our 

case law permits judicial discipline. Longstanding precedent makes 

clear that although actions taken in a judicial capacity — acting as

a judge, not merely while a judge — can warrant discipline 

regardless of good faith, actions taken outside a judicial capacity can 
5

warrant discipline only when taken in bad faith. None of the counts 

against Judge Coomer allege any actions taken in a judicial capacity, 

and so, in order to prevail on those counts, the Director would need 

to prove bad faith by clear and convincing evidence. But the Director 

instead argued that even mere negligence would warrant discipline, 

without acknowledging our case law to the contrary. And the 

Hearing Panel accepted that argument, recommending removal 

based on an apparent assumption that it did not matter whether 

Judge Coomer violated the law knowingly or in ignorance. But bad 

faith requires more than ignorance, and because the Hearing Panel’s 

report and recommendation was ambiguous as to whether it found

that Judge Coomer acted with bad faith, without clearer findings we 

cannot determine what, if any, discipline is appropriate.

We are not in a position to make our own findings. The Hearing 

Panel heard dozens of hours of live testimony — the hearing 

transcript alone is more than 2,100 pages long — and determining 

whether violations of the law were knowing and intentional or 

merely negligent requires careful credibility determinations based 
6

on personal observation. Only the Hearing Panel can make such 

determinations. Accordingly, we remand the matter for the Panel to 

do precisely that.

2. Background.

Judge Coomer was admitted to the State Bar of Georgia in 

1999. After leaving active lawyer duty with the United States Air 

Force’s Judge Advocate General’s program in 2005, Judge Coomer

started his own private law practice in Cartersville. He also served 

in the Georgia House of Representatives from 2011 until he joined 

the Court of Appeals in 2018. He briefly served as a judge on the 

Municipal Court of Adairsville in 2014. Before his appointment to 

the Court of Appeals, Judge Coomer formally pursued two other 

judicial vacancies. He applied for a vacancy on the Court of Appeals 

on March 29, 2018, withdrawing from consideration the following 

month. On August 30, 2018, Judge Coomer applied for a vacancy on 

this Court, but on September 14, 2018, Governor Nathan Deal 

announced his intention to appoint Judge Coomer to the Georgia 

Court of Appeals. On October 31, 2018, Governor Deal appointed
7

Judge Coomer to the Court of Appeals and administered the oath of 

office. Judge Coomer was elected to the Court of Appeals for a full 

six-year term in 2020. 

Also in 2018, the JQC grappled with the question of how — if 

at all — the Code of Judicial Conduct applied to conduct by people 

not yet judges or judicial candidates. As discussed in more detail 

below in Division (4) (b), in June 2018 the JQC Hearing Panel 

submitted for this Court’s review a formal advisory opinion 

concluding that the Code of Judicial Conduct’s text made clear that 

it did not apply to conduct by those not yet judges or judicial 

candidates. Later that year, the JQC Investigative Panel submitted 

a request that this Court change the Code to apply to such prejudicial conduct. We did not approve the proposed changes. At some 

point, the JQC withdrew the formal advisory opinion, a fact we 

acknowledged by order in September 2020.

On December 28, 2020, the JQC filed formal charges against 

Judge Coomer, alleging 26 counts of misconduct in violation of the 

Code. The allegations largely dealt with Judge Coomer’s 
8

representation of a client, James Filhart, while in private practice, 

as well as dealings with Filhart after Judge Coomer became a judge

on the Court of Appeals. The formal charges also included 

allegations regarding Judge Coomer’s campaign account and 

allegations that he made misrepresentations in a March 2020 

mortgage application. 

The day after formal charges were filed, the Investigative 

Panel filed a motion to suspend Judge Coomer pending the final 

resolution of the JQC proceeding under JQC Rule 15 (C). But that 

rule permits interim suspensions only upon “receipt of sufficient 

evidence demonstrating that a judge poses a substantial threat of 

serious harm to the public or to the administration of justice . . . .”

The Investigative Panel did not offer any evidence at all, and so we 

held the motion in abeyance to allow it to submit evidence. We also

rejected Judge Coomer’s initial attempt to consent to a suspension 

because he did not admit even conditionally for purposes of a motion 

to suspend that the standard for suspension had been met; the JQC 

Rules do not permit a judge to consent to a suspension without 
9

satisfying the evidentiary standard of Rule 15 (C). On January 5, 

2021, the JQC filed a new motion to suspend, which included 

averments that Judge Coomer consented to the motion, agreeing 

only for purposes of the motion that the JQC could prove the 

allegations against him, and further agreeing that the allegations in 

the motion and the formal charges, if taken as true, warranted 

suspension under the standard set forth in JQC Rule 15 (C). This 

Court granted this motion, suspending Judge Coomer with pay, per 

JQC Rule 15 (C) and the Georgia Constitution’s requirement that 

“[a]n incumbent’s salary, allowance, or supplement shall not be 

decreased during the incumbent’s term in office.” Ga. Const. of 1983, 

Art. VI, Sec. VII, Par. V; see also generally DeKalb County School 

Dist. v. Ga. State Bd. of Educ., 294 Ga. 349, 369 (4) (a) (751 SE2d 

827) (2013) (state and federal due process rights apply to 

constitutional officers in context of suspension and removal).

On March 8, 2021, Judge Coomer sought dismissal of the 

formal charges on the ground that the JQC lacked the power to 

discipline him for conduct alleged to have occurred before he became 
10

a judge or judicial candidate, or for conduct that the State Bar of 

Georgia or the Georgia Government Transparency and Campaign 

Finance Commission (“CFC”) were investigating. The Hearing Panel 

denied the motion on December 16, 2021. On January 25, 2022, 

Judge Coomer filed with this Court a petition for a writ of 

mandamus, writ of prohibition, and stay of proceedings.1 The 

petition asked this Court to prohibit the JQC “from exercising 

subject matter jurisdiction over allegations of conduct that occurred 

prior to the time he became a judge and allegations of conduct that 

occurred prior to the time he became a judicial candidate, mandat[e] 

that the JQC dismiss and close the ongoing disciplinary inquiry 

relating to such allegations” against Judge Coomer “as beyond the 

subject matter jurisdiction granted to the JQC” and “stay . . . the 

JQC inquiry and proceeding pending the Court’s determination of 

the threshold issue of subject matter jurisdiction.” Primarily on 

 1 That petition was not an appeal from the Hearing Panel’s order; at the 

time, no mechanism for appeal existed. Instead, that petition sought to invoke 

our rarely-exercised original jurisdiction. On February 3, 2023, a new JQC 

Rule 25 (B) (4) permitting interlocutory appeals became effective.
11

procedural grounds, the Director opposed our exercise of jurisdiction 

over Judge Coomer’s petition. On March 8, 2022, this Court 

dismissed the petition, saying that the petition did not present one 

of the extremely rare instances that warranted the Court exercising 

its power to grant original relief. The dismissal order was clear that 

it expressed no view on the merits of Judge Coomer’s arguments and 

stated that the dismissal was without prejudice to Judge Coomer’s 

right to assert such arguments in any future proceeding in this 

Court.

Ten days later, the Director filed amended formal charges 

against Judge Coomer, this time expanding the allegations to 

include some additional counts related to alleged campaign finance 

violations arising from trips he took to Israel in 2017 and Hawaii in 

2018. All told, the amended formal charges included 36 counts. The 

JQC charged that Judge Coomer violated three provisions of the 

Code: Rule 1.1 (“Judges shall respect and comply with the law.”); 

Rule 1.2 (A) (“Judges shall act at all times in a manner that 

promotes public confidence in the independence, integrity, and 
12

impartiality of the judiciary.”); and Rule 4.2 (B) (“Judicial 

candidates, including incumbent judges, shall not use or permit the 

use of campaign contributions for the private benefit of themselves 

or members of their families.”).

A formal hearing on the amended charges was held on October 

17-21, November 9, and December 21-22, 2022. On January 30, 

2023, the Hearing Panel filed with this Court a Report and 

Recommendation recommending that Judge Coomer be removed 

from his position on the Court of Appeals. The Hearing Panel found 

that the Director had proved all but seven of the counts against 

Judge Coomer by clear and convincing evidence.2

On February 21, Judge Coomer timely filed a Notice of 

Exceptions to the Hearing Panel’s Report and Recommendation. See 

JQC Rule 24 (F). Disagreeing with many of the Hearing Panel’s 

factual and legal conclusions, Judge Coomer argues that the 

Director failed to carry the burden to show by clear and convincing 

 2 We also note that in addition to rejecting seven counts altogether, the 

Hearing Panel concluded that the JQC had proved only “half” of one additional 

count.
13

evidence that Judge Coomer should be removed from office. Judge 

Coomer requests that the Court, if it is inclined to impose any 

discipline here, issue a public reprimand or censure. The Director 

did not file a notice of exceptions, thereby accepting the findings and 

conclusions of the Hearing Panel. This matter now comes before us 

to review the Hearing Panel’s Report and Recommendation and 

determine what discipline, if any, is warranted.

3. In reviewing a recommendation for judicial discipline, we 

defer to factual findings unless clearly erroneous, but review legal 

determinations de novo, and exercise our own discretion in 

determining what discipline, if any, is warranted.

We begin by setting out the proper standard of review. The 

Constitution divides tasks associated with judicial discipline 

between the JQC and this Court, assigning to the JQC the power to 

investigate, try, and recommend disciplinary sanctions in judicial 

misconduct matters, and vesting only this Court with the power to 

impose disciplinary sanctions. See Ga. Const. of 1983, Art. VI, Sec. 

VII, Pars. VI (a), VIII; see also Inquiry Concerning Crawford, 310 

Ga. 403, 407 n.5 (851 SE2d 572) (2020) (Blackwell, J., concurring).
14

Pursuant to a constitutional amendment approved by Georgia 

voters in 2016, the governance of the JQC itself has undergone

considerable change in recent years. Georgia voters approved the 

amendment of certain provisions of the Georgia Constitution 

governing the composition and procedures of the JQC. See 2016 Ga.

Laws pp. 896-897; 2022 Ga. Laws, p. 383A. The amendment 

“abolished” the existing JQC and gave the General Assembly the 

authority to “create and provide for the composition, manner of 

appointment, and governance of” the JQC, with appointments to the 

JQC “subject to confirmation by the Senate as provided for by 

general law.” See 2016 Ga. Laws pp. 896-897 (amending Ga. Const. 

of 1983, Art. VI, Sec. VII, Par. VI (a), (c)). Pursuant to its new 

authority, the General Assembly passed extensive legislation 

regarding the composition of the JQC and its procedures. Most 

notably, the new statutory structure created a bifurcated system 

where the Investigative Panel and its staff investigates and 

prosecutes allegations of judicial misconduct and the Hearing Panel 

adjudicates formal charges and makes recommendations to this 
15

Court. See OCGA § 15-1-21 (e). But the constitutional amendment

left untouched this Court’s constitutional authority over judicial 

discipline, as well as the constitutionally prescribed circumstances 

in which judicial discipline may be imposed. In other words, 

although the General Assembly has exercised its new-found 

authority to shape the power and procedures of the JQC, such that 

the way the JQC does its work has changed, the authority of this 

Court in the system of judicial discipline remains the same, as do 

the standards for imposing discipline. Accordingly, our pre-2016 

case law on these points remains “binding.” See Ga. Const. of 1983, 

Art. VI, Sec. VI, Par. VI.

In considering whether the Director has met the standard of 

proof as to charges of misconduct, we employ a “clear and convincing

proof standard.” See Inquiry Concerning Crawford, 310 Ga. at 405 

(2). Pursuant to its constitutional obligation to review any proposed 

removal of a judge, this Court “exercise[s] its judgment based upon 

the entire record in order to determine whether [the] conduct [of a 

judge or judicial candidate] warrants discipline, and, if so, what 
16

sanctions should be imposed.” In re Inquiry Concerning a Judge, 275 

Ga. 404, 406 (566 SE2d 310) (2002) (citation and punctuation 

omitted). “In performing this independent function, we give 

substantial consideration and due deference to the [Hearing Panel’s]

ability to evaluate the credibility of the witnesses who appear before 

it. However, this Court reaches its own conclusions regarding 

disciplinary sanctions against a sitting judge, and the 

recommendations of the [Hearing Panel] are not binding upon us.”

Id. Again, because the recent constitutional overhaul of the JQC did 

not alter this Court’s authority over the disciplinary process, this 

standard remains the same.

We therefore apply the sort of review this Court generally 

applies to review of a fact-finder who also draws legal conclusions 

and makes determinations as to an appropriate outcome, i.e., 

deferring to credibility determinations and factual findings unless 

clearly erroneous, and reviewing legal determinations and the 

ultimate outcome de novo. See In re Inquiry Concerning a Judge, 

275 Ga. at 406; see also, e.g., Nelson v. State, 312 Ga. 375, 377 (863 
17

SE2d 61) (2021) (standard for reviewing a trial court’s ruling on a 

defendant’s motion to suppress); In the Matter of Cook, 311 Ga. 206, 

214-215 (1) (857 SE2d 212) (2021) (standard of review for State Bar 

disciplinary matters); OCGA § 24-6-620 (Evidence Code provides 

that “[t]he credibility of a witness shall be a matter to be determined 

by the trier of fact[.]”).

4. The Hearing Panel misapprehended the scope of the Code

of Judicial Conduct by applying it to actions by Judge Coomer before 

he became a judicial candidate.

Although we have endeavored to apply this standard of review 

here, we are constrained by the two major flaws in the Hearing 

Panel’s Report and Recommendation. We start by considering the 

first of these flaws: the Hearing Panel based its recommendation at 

least in part on conduct that occurred before Judge Coomer became 

a judge and outside of the time that he was seeking a judgeship. But 

that is incorrect; the Code of Judicial Conduct does not apply to such 

pre-judicial conduct.

Judge Coomer has argued throughout these proceedings that 

he cannot be disciplined for pre-judicial conduct. He has contested 
18

the JQC’s ability to seek discipline of him for conduct that occurred 

before he offered himself for consideration for a judgeship, framing 

this as a question of the JQC’s “jurisdiction.” Prior to conducting the 

formal evidentiary hearing in this matter, the Hearing Panel 

rejected these arguments, relying primarily on the JQC Rules and 

Georgia Constitution to conclude that the JQC in fact has 

“jurisdiction” over pre-judicial conduct to the extent that conduct “is 

prejudicial to the administration of justice which brings the judicial 

office into disrepute.”

We agree with Judge Coomer that the JQC cannot pursue 

charges against him arising from actions taken before he became a 

judge or judicial candidate. But instead of this being a question of 

the JQC’s jurisdiction or constitutional power, this conclusion is 

instead the result of the plain text of the Code of Judicial Conduct, 

which does not apply to actions taken by people who are not yet 

judges or judicial candidates.

(a) We need not resolve Judge Coomer’s argument that due 

process forecloses discipline based on pre-judicial conduct.
19

Judge Coomer has argued that imposing discipline for conduct 

prior to his time as a judge or judicial candidate would violate his 

due process rights because he had no notice at the time he engaged 

in the alleged conduct that it would be subject to the Code. In its

order denying the motion to dismiss, the Hearing Panel rejected that 

argument, reasoning that the judicial discipline process is not about 

punishing a judge, but determining his fitness to serve. The Panel 

cited language from a 1995 decision of this Court that “the removal 

of a judge is not designed to punish the individual, but rather is the 

legal consequence of judicial misconduct or unfitness.” Matter of

Inquiry Concerning a Judge, 265 Ga. 843, 848 (4) (462 SE2d 728) 

(1995). The Panel added that Judge Coomer “knew or should have 

known when repeatedly applying for and ultimately attaining his 

position as a judge that the JQC Rules expressly provide the JQC 

with jurisdiction over his pre-judicial conduct and that such conduct 

may well bear upon his capacity to perform his duties with integrity, 

impartiality, and competence, as well as relate to the public’s 

confidence in the judiciary.” 
20

The Hearing Panel gave insufficient consideration to Judge 

Coomer’s due process argument. The Georgia Constitution explicitly 

provides that “[n]o action shall be taken against a judge except after 

hearing and in accordance with due process of law.” Ga. Const. of 

1983, Art. VI, Sec. VII, Par. VIII. Based on this provision, this Court 

has said the JQC’s authority to enforce the Code “is not . . . 

unlimited, inasmuch as the Constitution requires the Commission 

to afford due process to judges and provides for this Court to review 

the imposition of discipline.” In re Judicial Qualifications Comm’n 

Formal Advisory Opinion No. 239, 300 Ga. 291, 294 (1) (b) n.6 (794 

SE2d 631) (2016). Indeed, this Court relied on precisely this 

constitutional provision in the very same decision the Hearing Panel

cited in its order denying Judge Coomer’s motion to dismiss: we said 

“[t]he gravity of the [judicial discipline] proceeding requires that it 

be fundamentally fair and in keeping with the basic requirements of 

due process.” Matter of Inquiry Concerning a Judge, 265 Ga. at 848 
21

(4).3

But we need not resolve here whether disciplining a judge for 

actions committed prior to him becoming a judge or judicial 

candidate would violate that judge’s due process rights. Regardless 

of whether due process would place such a limit on the JQC’s power, 

the JQC can investigate and try only violations of the Code of 

Judicial Conduct. And the Code of Judicial Conduct does not extend 

to pre-judicial conduct.4

(b) The text of the Code of Judicial Conduct makes clear that 

it does not reach conduct of those who are neither judges nor judicial 

candidates.

 3 Federal due process requirements also apply. See S&S Towing & 

Recovery, Ltd. v. Charnota, 309 Ga. 117, 120 (1) (844 SE2d 730) (2020) 

(Principles of due process embodied in the Fourteenth Amendment “extend to 

every proceeding, whether judicial or administrative or executive in its nature, 

at which a party may be deprived of life, liberty, or property.” (citation and 

punctuation omitted)); Collins v. Morris, 263 Ga. 734, 735-736 (1) (438 SE2d 

896) (1994) (elected officials have a property interest in their office that can be 

taken from them “only by procedures meeting the requirements of due 

process”) (quoting City of Ludowici v. Stapleton, 258 Ga. 868, 869 (1) (375 SE2d 

855) (1989)). And fair notice of what conduct is prohibited is a key component 

of due process. See Baker v. State, 280 Ga. 822, 823 (2) (633 SE2d 541) (2006).

4 To be clear, we are not talking about situations in which a judge is 

indicted or convicted for conduct occurring before the judge became a judge. 

Specific procedures in that event are set forth in Article VI, Section VII, 

Paragraph VII, subsections (b) and (c) of the Georgia Constitution.
22

“[T]he authority to prescribe . . . particularized standards for 

judicial conduct belongs to this Court as an incident of the judicial 

power, an authority that we have exercised by our adoption of the 

Code of Judicial Conduct.” In re Judicial Qualifications Comm’n 

Formal Advisory Opinion No. 239, 300 Ga. at 294-295 (1) (b)

(citation and footnote omitted). The Code repeatedly makes clear 

that it governs the conduct of only judges and “judicial candidates,” 

a defined term that includes persons applying for judicial 

appointments, as well as elected candidates and announced 

appointees waiting to be sworn in.5 The Preamble to the Code states 

that the Code “establishes standards for ethical conduct of judges 

and judicial candidates.” Language in the Code outlining its 

“[s]cope” specifies that its canons and rules “are intended to govern 

 5 A change to the rules clarifying that “[a] person who is announced as 

the appointee to fill a judicial position by the Governor . . . continues to be a 

judicial candidate until he or she is sworn into office” did not take effect until 

November 1, 2018. But the earlier version of the rules nonetheless led to the

same result here. After all, the Code unambiguously applied to judicial 

candidates, and a candidate for appointment remains a candidate until 

actually appointed. Merely being announced as the intended appointee is not 

the same as an actual appointment; Judge Coomer did not cease being a 

candidate for appointment until his appointment was signed, which happened 

the same day he was sworn in, October 31, 2018.
23

conduct of judges and judicial candidates, and in certain 

circumstances to be binding upon them.” Code, Scope [6]. And in 

another introductory section outlining the “[a]pplication” of the 

Code, the Code says that “[a]ll judges, whether full-time, part-time, 

or pro tempore, shall comply with this Code” except as otherwise 

provided. That over-arching declaration regarding the breadth of 

the Code’s application specifies that “[a]nyone, whether or not a 

lawyer, who performs judicial functions under the Constitution and 

laws of Georgia, including an associate judge, senior judge, special 

master, magistrate, or municipal judge, or any person who is a 

judicial candidate for any such office, is a judge for the purpose of 

this Code.” Code, Application. 

This reading of the plain language of the Code as governing the 

conduct of only judges and judicial candidates is bolstered by the fact

that even for a person clearly governed by the Code, some of its 

provisions do not apply, or do not apply immediately upon that 

person coming within the Code’s reach. Part-time judges and judges 

pro tempore are permitted to engage in the private practice of law, 
24

and thus are not required to comply with certain rules in certain 

contexts. See Code, Application (A)-(B). In defining the term 

“judicial candidate,” the Code provides that “[j]udicial candidates 

who do not currently hold judicial office are subject to the same Code

provisions as judges pro tempore.” Code, Terminology.6 The Code

also provides that certain rules, like those governing fiduciary 

activities and personal and family financial activities, must be 

complied with only “as soon as reasonably possible and . . . in any 

event within the period of one year from commencing service as a 

judge.” Code, Application (C). All this makes clear that the rules do 

not govern conduct occurring prior to becoming a judge or judicial 

candidate, as they do not in every event apply even to new judges.

In context, it is clear that this language means not just that the 

Code governs only judges and judicial candidates, but also that it 

governs only those actions taken while a person is a judge or judicial 

candidate. The above-cited provision about the obligations of new 

 6 This language was added to the Code effective November 1, 2018, the 

day after Judge Coomer was sworn in as a Court of Appeals judge.
25

judges makes this particularly clear. It says “[a] person to whom this 

Code becomes applicable” — i.e., someone who becomes a judge or 

judicial candidate — “shall comply immediately” with most of the 

rules, but allows a grace period for complying with certain other 

rules. Code, Application (C). The necessary implication of that 

language is that the Code does not require someone to “comply” with 

any of its rules before they become a judge or judicial candidate. If 

it did, there would be no need to specify when a person must start 

complying because all of the person’s conduct would be retroactively 

swept into the Code’s reach upon that person becoming a judge or 

judicial candidate. And in addressing the Code’s reach after a person 

has left judicial office, the Code provides that “the appropriate 

authority for judicial discipline shall have continuing jurisdiction 

over individuals to whom this Code is applicable regarding 

allegations of misconduct occurring during the individual’s service 

as a judge, judicial candidate, or an officer of a judicial system, if a 

complaint is filed no later than one year following that service.” 

Code, Application (D) (emphasis supplied). This, too, leads to a 
26

conclusion that when the Code says its canons and rules “are 

intended to govern conduct of judges and judicial candidates,” Code, 

Scope [6], it is referring to conduct undertaken while someone is a 

judge or a judicial candidate. 

Moreover, the JQC previously articulated that understanding. 

At some point prior to March 2018, the Investigative Panel 

recommended pursuant to JQC Rule 28 (B) that the Hearing Panel 

issue an opinion on whether the Code of Judicial Conduct applied to 

conduct by a non-judge before that person becomes a judicial 

candidate. In June 2018, the Hearing Panel submitted to this Court 

for approval a Formal Advisory Opinion to the effect that “conduct 

by a non-judge before that person becomes a judicial candidate . . . . 

is not governed by the Code.”7 See Case No. S18Z1356, In re JQC 

Formal Advisory Opinion No. 242. Reviewing some of the same 

language from the Code set forth above, the Hearing Panel’s 

proposed FAO concluded: 

What . . . the Code makes clear is that someone who is not 

yet a judicial candidate — and not already a judge — is 

 7 Attached as Appendix 1.
27

not governed by the provisions of the Code. Consequently, 

the Investigative Panel is without jurisdiction to consider 

complaints that are limited to allegations of misconduct 

that occurred before a non-judge becomes a judicial 

candidate. While such allegations may well be fodder for 

campaign material, they do not fall within the 

Commission’s purview.

Later in 2018, the Investigative Panel proposed various 

amendments to the Code and the JQC Rules, again appearing to 

recognize that the Code itself did not reach misconduct occurring 

before a person becomes a judge or judicial candidate.8 Among the 

Investigative Panel’s proposals were requests that the language 

about the JQC’s ongoing reach after a person left judicial office be 

amended to the effect that the Code is applicable to “allegations that 

the individual engaged in conduct prior to service as a judge that 

impairs the individual’s current ability to carry out judicial 

responsibilities with integrity, impartiality, and competence[.]” The

Investigative Panel also proposed adding commentary to Rule 1.2 of 

the Code that “[o]n rare occasions, violations of the Code may be 

based on conduct occurring before the individual became a judge.”

 8 Attached as Appendix 2.
28

In proposing these amendments, the Investigative Panel explained 

that the Code and JQC Rules “are at odds regarding jurisdiction over 

misconduct that occurs before an individual becomes a judge or 

judicial candidate.” The Investigative Panel said the proposed 

amendments would “clarif[y] what type of conduct — prior to a judge 

assuming the bench — the Commission may look to as a potential 

violation of the Code” and differentiate between the prior 

misconduct of judges and the prior misconduct by a judicial 

candidate who never becomes a judge.

But the Court did not approve those proposed amendments to 

the Code. The Court did approve some of the other revisions to the 

Code requested by the Investigative Panel in that memo, specifically 

clarifying that announced appointees or election winners awaiting 

swearing-in are considered “judicial candidates” and that judicial 

candidates are subject to the same Code provisions as judges pro 

tempore. But none of those approved amendments extended the 

Code’s reach to conduct occurring before the individual became a 
29

judge. Even so, the JQC ultimately withdrew the proposed FAO.9

The JQC takes the position that the FAO became “moot” due to 

amendments to the Code and JQC Rules approved by this Court on 

November 1, 2018. But an amendment to the JQC Rules cannot alter 

the application of the Code itself. And the November 2018 

amendments to the Code — which clarified the definition of the term 

“judicial candidate” and specified that judicial candidates who do not 

hold judicial office are subject to the same Code provisions as judges 

pro tempore — in no way undermined the FAO’s conclusion that the 

 9 We note that, after filing his exceptions to the Hearing Panel’s Report 

and Recommendation, Judge Coomer filed a supplemental brief raising for the 

first time the FAO and asking us to treat it as persuasive authority. We were 

already aware of the FAO, and afford it only the treatment reflected in this 

opinion. In response to Judge Coomer’s supplemental brief raising the FAO, 

the JQC submitted a filing stating that although it does not know exactly when 

the FAO was withdrawn, records indicate the JQC withdrew it before January 

1, 2019. We note that the JQC Rules do not appear to authorize the JQC 

unilaterally to withdraw a formal advisory opinion once the process for review 

by this Court has been completed, see JQC Rule 28 (B), so its purported

unilateral withdrawal may have been ineffective until this Court’s September 

2020 order reflecting that the FAO was “withdrawn as moot[.]” And the rules 

do provide that when this Court declines to review a formal advisory opinion, 

it becomes “binding . . . on the Commission and the person who requested the 

opinion[.]” JQC Rule 28 (B) (4). Regarding the FAO at issue here, it is the JQC’s 

Investigative Panel that requested the opinion — indicating that the position 

taken in the opinion became binding on the JQC generally and the 

Investigative Panel specifically. To be clear, none of our analysis today depends 

in any way on whatever effect the FAO might have had.
30

Code does not apply to pre-judicial conduct.

In summary, the Hearing Panel determined that the Code of 

Judicial Conduct did not apply to persons not yet judges or judicial 

candidates, and the Investigative Panel asked this Court to change 

the Code to make it apply to pre-judicial conduct. This Court 

declined. And instead of accepting that fact, the JQC’s response was 

apparently to withdraw the Hearing Panel’s determination and 

proceed as if it had never happened, which ultimately resulted in 

bringing charges against Judge Coomer based on actions he took 

before he became a judicial candidate. When Judge Coomer 

protested by filing a motion to dismiss, the Hearing Panel denied 

the motion in an order that did not so much as grapple with the text 

of the Code — let alone acknowledge or explain the JQC’s shifting 

interpretation. Rather, the Hearing Panel relied on the JQC’s own 

Rules, which say that the JQC “has jurisdiction over judges 

regarding allegations that misconduct occurred before or during 

service as a judge and regarding allegations of incapacity during 

service as a judge.” JQC Rule 2 (B) (1) (emphasis supplied). The 
31

Hearing Panel concluded that this JQC Rule “comports with the 

Georgia Constitution” and is supported by “[t]he fundamental 

objectives of judicial disciplinary proceedings[.]”

Relying on the constitutional provision that “[a]ny judge may 

be . . . disciplined . . . for conduct prejudicial to the administration of 

justice which brings the judicial office in disrepute,” the Hearing 

Panel concluded that “[t]he Georgia Constitution thus affords the 

JQC jurisdiction over a judge’s pre-judicial conduct to the extent 

such conduct is ‘prejudicial to the administration of justice which 

brings the judicial office into disrepute.’” But the question of 

whether the JQC’s authority to investigate, try, and recommend 

disciplinary sanctions based on pre-judicial conduct is constrained 

by the text of the Constitution does not arise here, and we express 

no opinion on it. The JQC Rules are procedural rules and rules for 

the JQC’s governance; they do not — and cannot — say what conduct 

is actually proscribed, and for whom.10 The Code of Judicial Conduct 

 10 The statute regarding JQC Rules states that they shall be promulgated 

by the JQC’s Investigative Panel and effective only upon review and adoption 
32

does that, and this Court alone has the power to promulgate the 

Code. See In re Judicial Qualifications Comm’n Formal Advisory 

Op. No. 239, 300 Ga. at 294 (1); Judicial Qualifications Comm’n v. 

Lowenstein, 252 Ga. 432, 433-434 (1) (314 SE2d 107) (1984). So to 

say that the JQC has “jurisdiction over a judge’s pre-judicial 

conduct” — even if true as a matter of Georgia constitutional law, 

which we do not decide — is like saying that the superior courts of 

 

by this Court. See OCGA § 15-1-21 (j). This Court has previously said that the

authority for JQC rule promulgation is found in a provision of the Constitution 

unchanged by recent amendments, Article VI, Section VII, Paragraph VII (a), 

which says this Court “shall adopt rules of implementation” without any 

requirement for JQC involvement. See In re Judicial Qualifications Comm’n 

Formal Advisory Opinion No. 239, 300 Ga. at 295 n.9. Whether that 

constitutional construction is correct (which would raise constitutional 

questions about the statutory requirement for JQC promulgation of such 

rules), or whether the constitutional language is more properly understood to 

refer to this Court’s authority to promulgate the Code of Judicial Conduct

(which we have elsewhere said is not a function of any particular constitutional 

text, but is instead an inherent power of this Court, see Judicial Qualifications 

Com. v. Lowenstein, 252 Ga. 432, 433-434 (1) (314 SE2d 107) (1984)), is not an 

issue we need decide today. What is clear from the pertinent statute is that the 

rules shall be “for the commission’s governance.” OCGA § 15-1-21 (j). The 

Constitution empowers the General Assembly to legislate on that subject in 

similar text: “The General Assembly shall by general law create and provide 

for the composition, manner of appointment, and governance of a Judicial 

Qualifications Commission . . . .” Ga. Const. of 1983, Art VI, Sec. VII, Par. VI 

(a). Neither the statute nor the Constitution supports the idea that the JQC 

Rules can do more than govern the JQC’s own internal practices and 

proceedings before the JQC. Accord Ga. Const. of 1983, Art VI, Sec. VII, Par. 

VI (b) (“The procedures of the Judicial Qualifications Commission shall 

comport with due process.”). 
33

this state “have exclusive jurisdiction over trials in felony cases.” 

The latter statement is, of course, absolutely true. See Ga. Const. of 

1983, Art. VI, Sec. IV, Par. I. But that does not answer the question 

of what constitutes a “felony” that can be tried in superior court. 

Only Georgia criminal statutes answer that question. Here, by 

analogy, only the Code answers the question of whether conduct 

before a person became a judge or judicial candidate may subject 

that person to judicial discipline under the authority of this Court 

and the JQC. And, as explained above, the Code plainly answers 

that question in the negative.

5. We reject Judge Coomer’s other arguments as to the JQC’s 

authority over his conduct even after he became a judicial candidate.

(a) The Code of Judicial Conduct’s application to judicial 

candidates extends beyond their activity in “campaigning and 

politics relating to judicial positions.”

To be clear, we would not go as far as Judge Coomer urges in 

drawing the limits of the JQC’s reach. Judge Coomer argues that 

the reach of the Code to “judicial candidates” is quite limited. He has 

argued that “whereas the JQC has jurisdiction over judicial 
34

candidates, it is confined to their activity in campaigning and 

politics relating to judicial positions.” But this finds no support in 

the text of the Code, which, again, specifies that “[a]nyone . . . who 

performs judicial functions under the Constitution and laws of 

Georgia, including . . . any person who is a judicial candidate for any 

such office, is a judge for purposes of this Code.” Code, Application

(emphasis supplied). This language was cabined somewhat in an 

amendment to the definition of “judicial candidate” in the Code, 

effective November 1, 2018, specifying that judicial candidates who 

do not yet hold judicial office are subject only to the more limited 

constraints on judges pro tempore. But this language was not 

effective until the day after Judge Coomer was formally appointed 

and sworn in and thus ceased to be a “judicial candidate.” Therefore, 

during the time that Judge Coomer was a judicial candidate, the 

general language that “any person who is a candidate” for a judicial 

office “is a judge” for purposes of the Code controlled. And even 

under the more limited definition of “judicial candidate” in the 

current Code, a judicial candidate is not exempt from any of the 
35

provisions of the Code at issue in this matter — Rules 1.1, 1.2 (A), 

and 4.2 (B). Rather, judicial candidates are now exempt only from 

Rules 3.4 (extra-judicial appointments), 3.8 (fiduciary activities), 3.9 

(arbitration and mediation), 3.10 (practice of law), 3.11 (financial 

activities), and 3.15 (A) (1) (annual financial reporting of extrajudicial compensation). See Code, Application (B) (1). In short, when 

Rule 1.1 provides that, “Judges shall respect and comply with the 

law,” and Rule 1.2 (A) provides that, “Judges shall act at all times 

in a manner that promotes public confidence in the independence, 

integrity, and impartiality of the judiciary,” “Judges” is understood 

to include “judicial candidates” — and it was so understood when 

Judge Coomer was seeking appointments in 2018.

(b) Investigating a judge for conduct that occurred while he 

was simultaneously a judicial candidate and a member of the 

General Assembly does not violate constitutional separation of 

powers principles.

Judge Coomer also argues that investigating him for conduct 

that occurred while he was a judicial candidate but also still a 

member of the General Assembly would violate separation of powers 
36

principles, because the General Assembly has the authority to 

regulate the conduct of its members. The Georgia Constitution is 

“clear that one branch cannot subsume another’s territory: ‘The 

legislative, judicial, and executive powers shall forever remain 

separate and distinct; and no person discharging the duties of one 

shall at the same time exercise the functions of either of the others 

except as herein provided.’” Ga. Dept. of Human Svcs. v. Steiner, 303 

Ga. 890, 904 (V) (815 SE2d 883) (2018) (quoting Ga. Const. of 1983, 

Art. I, Sec. II, Par. III). And Judge Coomer cites the Georgia 

Constitution’s direction that each house of the General Assembly 

“shall be the judge of the election, returns, and qualifications of its 

members and shall have power to punish them for disorderly 

behavior or misconduct by censure, fine, imprisonment, or 

explusion[.]” Ga. Const. of 1983, Art. III, Sec. IV, Par. VII. But by its 

own terms, this language does not give the General Assembly 

exclusive power to discipline its members; indeed, that notion would 

suggest that the members of the General Assembly are immune 

from criminal prosecution for all crimes at all times, not merely the 
37

misdemeanor-arrests-during-session from which the Georgia 

Constitution protects them. See Ga. Const. of 1983, Art. III, Sec. IV, 

Par. IX (“The members of both houses shall be free from arrest 

during sessions of the General Assembly, or committee meetings 

thereof, and in going thereto or returning therefrom, except for 

treason, felony, or breach of the peace.”). In any event, the JQC’s 

investigation here does not interfere with or subsume the legislative 

branch’s authority. It certainly did not involve the investigation of a 

sitting legislator and thus in no way interfered with the General 

Assembly’s ability to discipline its members. And at the time the 

JQC initiated its investigation, Judge Coomer was no longer a 

member of the General Assembly and was instead a sitting judge. 

The Constitution sets forth in general terms the conduct for 

which a judge may be disciplined, and the Code sets forth the 

particularized standards. As we make abundantly clear today, the 

Code, by its terms, applies to judges and judicial candidates. So once 

Judge Coomer became a judicial candidate, he was required to abide 

by that Code, even if he was also a legislator for some portion of that
38

time. This does not violate separation of powers principles. 

(c) The JQC’s authority includes conduct by judges and 

judicial candidates that may also fall within the purview of another 

government agency.

There is also no merit to Judge Coomer’s argument that the 

JQC lacks authority to discipline Judge Coomer for actions as a 

judge or judicial candidate merely because another government 

agency, whether it be the State Bar of Georgia (as an arm of this 

Court) or the CFC, has concurrent authority to investigate alleged

misconduct. An attorney who becomes a judicial candidate may 

continue to practice law during his candidacy. See Code, 

“Terminology” — “Judicial candidate”; Application, Part B, cmt. 2. 

But seeking a judicial office does not absolve that attorney from his 

obligations under the Georgia Rules of Professional Conduct. 

Similarly, as Judge Coomer concedes, the CFC is charged with 

ensuring compliance with campaign finance requirements 

applicable to all constitutional offices, including judicial ones. See 

OCGA §§ 21-5-6 (b) (prescribing duties of CFC, including duties to 

investigate financial disclosure reports), 21-5-50 (generally 
39

prescribing duties of public officers and candidates for elected public 

office to file financial disclosures). Nothing about this statutory 

scheme strips the JQC of its constitutional authority to investigate 

judges for misconduct, including for actions taken as a judicial 

candidate. Judges and judicial candidates must respect and comply 

with the law, including that governing campaign finance. See Code,

Rule 1.1. 

Judge Coomer also argues that these proceedings should have 

been stayed as a prudential matter while the investigations by the 

CFC and State Bar were pending. There may be circumstances in 

which the JQC might consider such abstention appropriate, and we 

do not suggest that it lacks that discretion. But it did not choose to 

abstain in this matter, and Judge Coomer offers no reason for us to 

second-guess the JQC’s choice, much less substitute our own 

judgment at this late date. Indeed, given that Judge Coomer’s

interim suspension with pay has remained in place for more than 

two years pending a final resolution of the JQC proceedings, 

prudence counsels resolving this matter with alacrity and dispatch.
40

6. The Hearing Panel applied the wrong standard for 

determining whether a judge may be disciplined under our 

Constitution.

We turn now from the scope of the Code of Judicial Conduct to 

the grounds for discipline authorized by the Constitution. As we 

alluded to above, the Georgia Constitution sets out five grounds for 

discipline: discipline “for willful misconduct in office, or for willful 

and persistent failure to perform the duties of office, or for habitual 

intemperance, or for conviction of a crime involving moral turpitude, 

or for conduct prejudicial to the administration of justice which 

brings the judicial office into disrepute.” Ga. Const. Art. VI, Sec. VII, 

Par. VII (a).11 The Amended Formal Charges alleged that discipline 

 11 This constitutional provision did not include “conviction for a crime 

involving moral turpitude” among the bases for discipline of judges until the 

1983 Constitution. See Ga. Const. of 1976, Art. VI, Sec. XIII, Par. III (b); 1982 

Ga. Laws pp. 2551, 2553, § 3; 1983 Ga. Laws p. 2070. Interestingly, the official 

committee to revise Article VI at the 1983 Constitutional Convention 

recommended that the phrase “conduct prejudicial to the administration of

justice which brings the judicial office into disrepute” be removed from the 

provision, suggesting the substitution of “conviction of a crime involving moral 

turpitude” as more definite language. See Committee to Revise Article VI, Full 

Committee Meeting, August 8, 1980, at pp. 213-216; Full Committee Meeting, 

August 22, 1980, at pp. 89-91. Although that version lacking the “conduct 

prejudicial” clause initially was approved by the General Assembly, see 1981 

Ga. Laws. (Extraordinary Session), pp. 143, 182-183, the version ultimately 
41

was appropriate under only two of these categories, asserting 

generally that Judge Coomer’s conduct constitutes “willful 

misconduct in office and is prejudicial to the administration of 

justice, bringing the office of Judge on the Georgia Court of Appeals 

into disrepute.” In recommending that Judge Coomer be removed 

from office, the Hearing Panel concluded that Judge Coomer had 

engaged in willful misconduct in office by conduct charged in a 

handful of counts alleging conduct that occurred while Judge 

Coomer was a judge, albeit not actions taken in a judicial capacity. 

And it found that Judge Coomer had engaged in conduct prejudicial 

to the administration of justice in conduct charged under all of the 

counts that the Hearing Panel found had been proved.

 

submitted to, and approved by, Georgia voters, included both phrases. See 

1982 Ga. Laws pp. 2551, 2553, § 3; 1983 Ga. Laws p. 2070.

The 1945 Constitution does not appear to have initially provided for 

discipline of judges at all. See generally Ga. Const. of 1945, Article VI. But a 

1972 amendment to that Constitution created the JQC, with authority to 

investigate complaints about judges’ “willful misconduct in office, or willful and 

persistent failure to perform his duties, or habitual intemperance, or for 

conduct prejudicial to the administration of justice which brings the judicial 

office into disrepute.” 1972 Ga. Laws pp. 1364-1367, 1973 Ga. Laws p. 1755; 

see also Fortson v. Weeks, 232 Ga. 472, 490-491 (208 SE2d 68) (1974) (Hall, J., 

concurring). 
42

While “willful misconduct in office” and “conduct prejudicial to 

the administration of justice” may seem very broad, our case law 

shows otherwise. As one might imagine with legal text of such age 

and significance, we have explained what those grounds mean:

We interpret “willful misconduct in office” to mean actions 

taken in bad faith by the judge acting in her judicial 

capacity. “Conduct prejudicial to the administration of 

justice” refers to inappropriate actions taken in good faith 

by the judge acting in her judicial capacity, but which may 

appear to be unjudicial and harmful to the public’s esteem 

of the judiciary. Prejudicial conduct may also refer to 

actions taken in bad faith by a judge acting outside her 

judicial capacity.

Matter of Inquiry Concerning a Judge No. 94-70, 265 Ga. 326, 327-

328 (1) (454 SE2d 780) (1995); see also, e.g., In re Judicial 

Qualifications Comm’n Formal Advisory Op. No. 239, 300 Ga. at 297 

(2) (citing Matter of Inquiry Concerning a Judge No. 94-70 for the 

proposition that “[a] knowing and willful misapplication of the law, 

. . . would amount to bad faith and thereby implicate the Code of 

Judicial Conduct”); Leitch v. Fleming, 291 Ga. 669, 674 (3) (732 SE2d 

401) (2012) (citing Matter of Inquiry Concerning a Judge No. 94-70

for the proposition that willful misconduct means actions taken in 
43

bad faith by a judge acting in her judicial capacity); In re Inquiry 

Concerning Judge Robertson, 277 Ga. 831, 834 (3) (596 SE2d 2) 

(2004) (“Prejudicial conduct refers to actions taken in bad faith by a 

judge acting outside of his or her judicial capacity. Whether 

discipline should be imposed and the severity of discipline depends, 

in part, upon the effect of the improper activity on the judicial 

system.”); Matter of Inquiry Concerning a Judge, 265 Ga. at 849

(citing Matter of Inquiry Concerning a Judge No. 94-70 for the 

proposition that “blatant disregard for the law” is bad faith).12

 12 Judge Coomer’s counsel appeared to suggest to the Hearing Panel that 

Paragraph VII (a) of Article VI, Section VII was amended in 2016. But the 2016 

amendments did not alter Section VII, Paragraph VII, subparagraph (a) of 

Article VI, setting forth the grounds on which judges may be removed or 

otherwise disciplined. See 2016 Ga. Laws, p. 896, § 2. The language that now 

comprises subparagraph (a) has not been altered since voters approved the 

1983 Constitution. 

We also note that the case interpreting this language did so in the 

context of analyzing language in a JQC Rule. See Matter of Inquiry Concerning 

a Judge No. 94-70, 265 Ga. at 327 (1). Both then and now, the JQC Rules 

included a rule itemizing the permissible grounds for discipline. Those grounds 

as they appear in the various rules were and are materially identical to the 

constitutional language. Compare JQC Rule 6 (A) (providing that “the grounds 

for discipline are: (1) willful misconduct in office; (2) willful and persistent 

failure to perform the duties of office; (3) habitual intemperance; (4) conviction 

of a crime involving moral turpitude; and (5) conduct prejudicial to the 

administration of justice which brings the judicial office into disrepute”); with 

former JQC Rule 4 (b) (providing for discipline where judge engaged in “willful 
44

In other words, “willful misconduct in office” applies only to 

actions taken in bad faith and in a judicial capacity. And “judicial 

capacity” is a familiar phrase that means actions taken not merely 

during the term of service as a judge, but actions taken actually as 

a judge exercising judicial power. See, e.g., Heiskell v. Roberts, 295 

Ga. 795, 800-801 (3) (764 SE2d 368) (2014) (“Judges are ‘immune 

from liability in civil actions for acts performed in their judicial 

capacity.’” (quoting Earl v. Mills, 275 Ga. 503, 504 (570 SE2d 282) 

(2002)); compare Heiskell, 295 Ga. at 801 (“a judge is not immune 

from liability for nonjudicial actions, i.e., actions not taken in the 

judge’s judicial capacity”) (quoting Mireles v. Waco, 502 U.S. 9, 11-

12 (112 SCt 286, 116 LE2d 9) (1991) (punctuation omitted)).

None of the counts against Judge Coomer allege anything 

about actions he took in a judicial capacity. Accordingly, none of 

those counts permit discipline on the ground that his conduct 

 

misconduct in office, or willful and persistent failure to perform the duties of a 

judge, or habitual intemperance, or conduct prejudicial to the administration 

of justice which brings the judicial office into disrepute.”)
45

amounted to “willful misconduct in office.” And none of those counts 

would permit discipline for “conduct prejudicial to the 

administration of justice,” absent a finding of bad faith.

The only cited constitutional basis for discipline that might 

apply here is the sub-category of “conduct prejudicial to the 

administration of justice,” to the extent that it involves “actions 

taken in bad faith by a judge acting outside [his] judicial capacity.” 

Matter of Inquiry Concerning a Judge No. 94-70, 265 Ga. at 328 (1). 

And plainly, to qualify as “actions taken in bad faith,” an action must 

involve something more than negligence. See State v. Bryant, 307 

Ga. 850, 854 (2) (838 SE2d 855) (2020) (“Inherent in the concept of 

bad faith is something more than negligence.”); see also Greenway v. 

Hamilton, 280 Ga. 652, 655 (3) (631 SE2d 689) (2006) (noting in 

attorney fee context that “[b]ad faith is not simply bad judgment or 

negligence, but a breach of known duty through some motive of 

interest or ill will” (punctuation and citation omitted)); see also 

Wachovia Bank of Ga., N.A. v. Namik, 275 Ga. App. 229, 234 (3) (b) 

(620 SE2d 470) (2005) (“Bad faith is not simply bad judgment or 
46

negligence, but it imports a dishonest purpose or some moral 

obliquity, and implies conscious doing of wrong, and means breach 

of known duty through some motive of interest or ill will.” (footnote 

and punctuation omitted)).

The Hearing Panel’s Report and Recommendation is 

ambiguous as to whether the Panel found that Judge Coomer had 

acted in bad faith in committing any of the proved violations. The 

Director argued in closing that, “at a minimum, [Judge Coomer] is 

so negligent in knowing the law” that the public cannot trust him to 

sit on the Court of Appeals. The Hearing Panel apparently was 

persuaded by this argument, offering an explanation for its 

recommendation of removal that contemplated that Judge Coomer’s 

ignorance of that law may itself be a basis to remove him:

[Judge Coomer]’s long and unbroken pattern of violating 

multiple attorney ethics rules and campaign finance laws 

to his own financial benefit not only erodes the public’s 

confidence in the judiciary but, just as importantly, falls 

far short of the high standards of behavior justifiably 

expected of all judges. [Judge Coomer] either knowingly

violated these rules and laws — and didn’t care — or he 

lacked basic knowledge of the ethical and professional 

responsibilities of his important position as attorney, 
47

counselor, and, ultimately, judge. Neither option —

violator or uninformed — is acceptable[,] and neither 

instills confidence in the judiciary. And in this case, there

are too many examples of both.

As to Judge Coomer’s dealings with Filhart, the Hearing Panel 

found that Judge Coomer’s “conduct establishes a plain pattern of 

flouting (or not knowing) the law[.]” As to the campaign finance 

counts, the Hearing Panel concluded that “[a]gain and again, prejudgeship and after taking the bench, [Judge Coomer] has ignored 

(or been ignorant of) critical legal and ethical restrictions on the use 

of campaign funds.” The Hearing Panel concluded generally that 

parties and their lawyers appearing before Judge Coomer at the 

Court of Appeals “would have little reason to be confident in [Judge 

Coomer]’s ability to fairly and competently interpret and apply the 

law” in various areas of the law that have arisen in these 

proceedings. These conclusions suggest that the Hearing Panel 

recommended removal despite leaving open the possibility that 

Judge Coomer may have simply been ignorant of the rules and laws 

that the Hearing Panel found he violated — in other words, without 

finding that the relevant actions were taken in bad faith. 
48

If this were the full extent of the Hearing Panel’s conclusions, 

we might be compelled to impose no discipline at all; findings that 

Judge Coomer may well have been merely negligent are not findings 

of bad faith by clear and convincing evidence. But the Hearing Panel

also states that Judge Coomer “exploited” both Filhart and the 

“unique and fragile position of trust that attorneys and judges 

enjoy.” That word — “exploited” — suggests intentional action. 

Moreover, the Report and Recommendation suggested that Judge 

Coomer’s introduction of character evidence may have backfired,

undermining the notion that he acted out of an ignorance of the law:

[F]rom the character witnesses [Judge Coomer] called to 

testify comes another powerful lesson: they — in 

particular his superior officer, Colonel [Lorraine M.] 

Mink, from the United States Air Force’s Judge Advocate 

General Corps — saw in [Judge Coomer] a smart, capable 

leader who excelled in all that he did. Accepting this 

assessment as true, the Hearing Panel is left to conclude 

that [Judge Coomer], deemed to be in the top one percent 

of officers Colonel Mink had ever met, knew exactly what 

he was doing when he [acted in the manner alleged in the 

various counts].

In context, we cannot determine whether this is a bright-line 

factual finding that every violation of law and rules by Judge 
49

Coomer was done knowingly, or whether it is merely a final 

rhetorical flourish. It certainly is at odds with other statements in 

the Report and Recommendation suggesting that the Hearing Panel 

is uncertain that Judge Coomer knowingly violated the various rules 

at issue, especially the statement that “there are too many examples 

of both [violator or uninformed].” And that difference matters a 

great deal. Knowing violation of the law would likely satisfy bad 

faith; mere negligence plainly would not.

7. Conclusion.

In sum, the Hearing Panel made two critical errors of law. It 

erroneously determined that Judge Coomer’s conduct before he 

became a judicial candidate was the proper subject of discipline. And 

it erroneously determined that negligent conduct outside the 

judicial capacity could warrant discipline, when our case law makes 

clear that conduct outside the judicial capacity must be done with 

bad faith to warrant discipline. 

Those errors require us to end where we began — with the 

standard of review. As we said at the outset, in determining whether 
50

to accept the Hearing Panel’s recommendation, we review legal 

determinations de novo but we defer to factual findings. Intent was 

a matter of enormous dispute in this matter, and this Court is not 

well positioned to resolve the factual questions of intent that are 

crucial to determining whether discipline is constitutionally 

permitted. The Hearing Panel heard dozens of hours of testimony 

related to that topic and observed the people offering that testimony; 

the Hearing Panel — not this Court — is best positioned to resolve 

those questions. We therefore must remand for the Hearing Panel 

to engage in that work. 

The Hearing Panel is directed to issue new findings that (1) 

determine which counts against Judge Coomer that were proved by 

clear and convincing evidence are properly within the scope of the 

Code of Judicial Conduct; (2) clearly articulate which counts, if any, 

may support discipline within the constitutional framework as 

articulated in this opinion, with particular attention toward 

whether the Director proved bad faith for any of those counts; and 

(3) reconsider what, if any, discipline is appropriate based on the 
51

revised findings.13 The Hearing Panel is directed to file that new 

Report and Recommendation with this Court within 60 days of the 

date of this opinion. We leave it to the Hearing Panel to set a 

schedule for obtaining briefing from the parties as to the questions 

now before it.

Matter remanded with direction. All the Justices concur, except 

Bethel, J., not participating, and Colvin, J., disqualified. 

 13 We also direct the Hearing Panel to use more precision in making 

factual findings in support of its conclusions regarding whether the Director 

has proved the various charges against Judge Coomer, particularly whether 

Judge Coomer represented Filhart at the time of the conduct at issue in Counts 

6 and 20 (if those counts are still determined to have been proved), and as to 

which particular campaign expenditures Judge Coomer violated the law by 

failing to disclose on his December 31, 2018 Campaign Contribution Disclosure 

Report (again, if the count(s) involving that report are determined to have been 

proved). We also direct the Panel to include complete record citations, 

including citations to the final hearing transcript.
 APPENDIX 1
IN THE SUPREME COURT 

STATE OF GEORGIA 

) 

) 

In re: Formal Advisory Opinion 242 ) Case No. _ 

) 

) 

) 

JOC Formal Advisory Opinion 242 

The Judicial Qualifications Commission's ("Commission") Hearing Panel 

respectfully submits the attached Formal Advisory Opinion (Exhibit A) to the 

Court pursuant to Commission Rule 28(B)(4). The Commission's Investigative 

Panel, invoking Commission Rule 28(B)(l), requested that the Hearing Panel issue 

a formal advisory opinion. The Hearing Panel made a preliminary determination 

that a proposed formal advisory opinion should be drafted on the issue presented 

by the Investigative Panel. The Hearing Panel subsequently authored and then 

published a proposed Formal Advisory Opinion 242 on the websites of the 

Commission, the Administrative Office of the Courts, and the State Bar of Georgia 

on 6 March 2018. Consistent with Commission Rule 28(B)(3), the Hearing Panel 

invited public comments on proposed Formal Advisory Opinion 242 through 23 

March 2018. After due consideration of those comments, the Hearing Panel made 

minor changes to the proposed formal advisory opinion. 

Case S18Z1356 Filed 06/11/2018 Page 1 of 4
The Hearing Panel now files Formal Advisory Opinion 242 with the Court 

and will also publish it on the websites listed above. The Hearing Panel or any 

person "aggrieved" by Formal Advisory Opinion 242 has twenty days from the 

date of this filing to petition the Court for discretionary review.

1 Commission Rule 

28(8)(4). The Court may also review the opinion sua sponte. Id. 

With this explanation, the Hearing Panel respectfully submits Formal 

Advisory Opinion 242 to the Court. 

This _}_L day of May, 2018. 

Presiding Officer 

Judicial Qualifications Commission He ring Panel 

1 The Hearing Panel does not intend to seek discretionary review from the Court at this time. 

2 

Case S18Z1356 Filed 06/11/2018 Page 2 of 4
EXHIBIT A 

JUDICIAL QUALIFICATIONS COMMISSION 

ST A TE OF GEORGIA 

FORMAL ADVISORY OPINION No. 242 

Pursuant to Rule 28(B) of the Rules of the Judicial Qualifications 

Commission (JQC), the Investigative Panel of the JQC has requested that the 

Hearing Panel of the JQC issue an opinion on whether the Code of Judicial 

Conduct, which governs both judges and judicial candidates (as defined in the 

Code and discussed below), applies to conduct by a non-judge before that person 

becomes a judicial candidate. This question appears not have been addressed in 

any earlier JQC Advisory Opinion. For the reasons set forth below, the Hearing 

Panel concludes that such conduct is not governed by the Code. 

It is alleged that a candidate for judicial office in Georgia has engaged in 

conduct arguably violative of the Code. However, it appears that the alleged 

misconduct occurred before the individual became a judicial candidate. A 

complaint concerning this conduct has been presented to the Investigative Panel. 

The Code of Judicial Conduct applies to "[a]nyone ... who performs a 

judicial function under the Constitution and laws of Georgia" as well as to "any 

person who is a judicial candidate for any such office." Application, Code of 

Judicial Conduct. A "judicial candidate" is any person "seeking selection for or 

Case S18Z1356 Filed 06/11/2018 Page 3 of 4
retention in judicial office by election or appointment." Terminology, Code of 

Judicial Conduct. One becomes such a candidate as soon as one 

(i) appoints or forms a campaign committee, (ii) makes a public 

announcement of candidacy, (iii) declares, files or qualifies as a 

candidate with the election or appointment authority, or (iv) 

authorizes solicitation or acceptance of contributions or support. 

Id. Once the Code is applicable to an individual, that individual must immediately 

comply with all of the Code's provision (except for Rules 3.8 and 3. l(B) - (F)). 

Application, Section C. 

What this examination of the Code makes clear is that someone who is not 

yet a judicial candidate -- and not already a judge -- is not governed by the 

provisions of the Code. Consequently, the Investigative Panel is without 

jurisdiction to consider complaints that are limited to allegations of misconduct 

that occurred before a non-judge became a judicial candidate. 

1 While such 

allegations may well be fodder for campaign material, they do not fall within the 

Commission's purview. 

1 This Opinion does not address the specific facts that gave rise to the complaint to the 

Investigative Panel. They are, appropriately, not known to the Hearing Panel. It is for the 

Investigative Panel to determine whether the individual in question, now purportedly a judicial 

candidate, was a judicial candidate, as defined by the Code, when the complained-of behavior 

occurred. 

2 

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APPENDIX 2