### In the Supreme Court of Georgia

Decided: March 15, 20 23

S 21Z0595

. IN QUIRY CONCERNING JUDGE CHRISTIAN COOMER

.
P ER 

### C URIAM


### . 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 Hea ring 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. Introdu ction

. In late 2020, the JQC brought formal charges against Judge Coomer. Th e charges , as later amended , comprise 36 counts alleging2 

### that Judge Coomer violated three provisions of the Georgia Code of Judicial Conduct (“the Code”) , i n 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 impermi ssible 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 liabilit ies 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 r esolution 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, the3 

### JQC finally tried Judge Coomer in a hearing held over a three

month 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 eit her 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 pre

judicial conduct

. That is wrong. T he Code of Judicial Conduct plainly4 

### 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 f ilings with this Court , not long before filing formal ch arges against Judge Coomer. Inexplicably, however,

n either the Director’s argument to the Hearing Panel nor the Hearing Panel’s conclusion even acknowledge s 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 cand idates , 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 cl ear 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 can5 

### 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 ev idence. 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 n ot 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 a s to whether it found that Judge Coomer acted with bad faith , wi thout 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 based6 

### on personal observation. Only the Hearing Panel can make such determinations. Accordin gly, we remand the matte r 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 app ointment to the Court of Appeals, Judge Coomer formally pursued two other judicia l 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 f or 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 appointed7 

### 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 judic ial 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 co nduct 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 pre

judicial conduct. We did not approve the proposed changes. At some point, the JQC wi thdrew 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 Ju dge Coomer’s8 

### 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 ac count and allegations that he made misrepresentations i n a March 2020 mortgage application. The day after formal charges were filed , t he 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 d id not offer any evidence at all, and so w e 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 suspe nd that the standard for suspension had been met ; the JQC Rules do not permit a judge to consent to a suspension without9 

### satisfying the evidentiary standard of Rule 15 (C)

. O n J anuary 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 suspensio n under the standard set forth in JQC Rule 15 (C)

. This Court granted th is 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 decreas ed 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 t he formal charges on the ground that the JQC lacked the power to discipline him for conduc t alleged to have occurred before he became10 

### 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 o n December 16, 2021. O n 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 ov er 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 suc h 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 

### procedu ral 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 exercisi ng 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 proc eeding 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 Israe l 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 a ll times in a manner that promotes public confidence in the independence, integrity, and12 

### 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. T he Hearing Panel found that the Director had prove d all but seven of the counts against Judge Coomer b y clea r and convincing evidence. 2 

### On February 21, Judge Coomer timely filed a Notice of E xceptions 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 Coo mer 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 prove d 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 repriman d 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 a ny, 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 warrante d

. We begin by setting out the proper standard of review. T he 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 disci plinary sanctions. See Ga. Const. of 1983, Art. VI, Sec. VII, Pars. VI (a), VIII; see also Inquir y 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 . Ge orgia voters approved the amendment of certain provisions of the Georgia Constitution governing the composition and procedures of the JQC. See 2016 Ga

. Laws p p . 896

- 897 ; 2022 Ga. Laws , p. 383A

. The amendment “abolished” the existing JQC and gave the Genera l 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 (amen ding 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 bif urcated system where the Investigative Panel and its staff inv estigates and prosecutes allegations of judicial misconduct and the Hearing Panel adjudicates formal charges and makes recommendations to this15 

### 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 remain s the same , as do the standards for imposing discipl ine. Accordingly, our pre

- 2016 case law on these points remains “binding.” See Ga. Const. of 19 8 3, Art. VI, Sec. VI, Par. VI

. I n considering whether the Director has met the standard of proof as to charges of misconduct, we employ a “clear and convin cing 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, what16 

### 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 independen t function, we give substantial considerati on 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 s itting judge, and the recommendations of the [Hearing Panel] are not binding upon us. ” Id. Again, b ecause the recent constitutional overhaul of the JQC did
not alter this Court’s authority over the disciplinary process , this standard remains the same. We t herefore 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 clea rly 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 (86317 

### 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 mat ter 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: t he Hearing Panel based its recommendation at l east in part on conduct that oc curred before Judge Coomer became a judge and outside of the time that he was seeking a jud geship

. But that is incorrect ; t he Code of Judicial Conduct does not apply to such
pre - judicial conduct. Judge Coomer has argued throu ghout these proceedings that he cannot be disciplined for pre - judicial conduct. He has contested18 

### 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 o f 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 j udicial office into disrepute.” W e agree with Judge Coomer that the JQC cannot pursue charges against him arising from actions taken before h e 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

a rgument, 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 ultim ately 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, a s well as relate to the public’s confidence in the judiciary.”20 

### T he Hearing Panel gave insufficient consideration to Judge Coomer’s due process argument

. T he Georgia Constitution explicitly provides that “[n]o action shall be taken against a judge except a fter 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 6 31) (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 require s that it be fundamentally fair and in keeping with the basic requirements of due process.” Matter of Inquiry Concerning a Judge , 265 Ga. at 84821 

### (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 Judic ial 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 administr ative 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 o ffice 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 SE 2d 855) (1989) ) . And fair notice of what conduct is prohibited is a key component of due pro cess. 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 ele cted 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 c anons 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 C ode 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 signe d, 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 perfor ms 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 provid es 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 judg e.” Code , Application (C). All t his 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 jus t 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 T his 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 candidat e
— “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 star t complying becau se all of the person’s conduct would be retroactively swept in to the Code’s reach upon that person becoming a judge or judicial candidate

. A nd in a ddressing the Code’s reach after a person has left judicial office, the Code provides that “the appropriate

a uthority 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 s ystem, if a complaint is filed no later than one year following that service.” Code, Application (D) (emphasis supplied). This, too, leads to a26 

### conclusion that when the Code says it s canons and rules “are intended to govern conduct of judges and judicial c andidates ,” 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 candi date. In June 2018, the Hearing Panel submitted to this Court for approval a Formal Advisory O pinion 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 R ules, 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 ju dge that impairs the individual’s current ability to carry out judicial responsibilities with integrity, impartiality, and competence[.]” The Investigative Panel also propos ed 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 C ommission 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 candi date who never becomes a judge. But the Court did n ot 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 ar e 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 a29 

### judge. Even s o, t he JQC ultimately withdr ew the proposed FAO

. 9 

### T he 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 withdre w 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 , s ee JQC Rule 28 (B) , so its purported unilateral wit hdrawal 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 whe n this Court declines to review a formal advisory opinion, it becomes “binding . . . on the Commis sion 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 a nd the Investigative Panel specifically

. T o 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 Co de to make it apply to pre

- judicial conduct

. T his 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 brin ging 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 th e 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 servi ce as a judge and regarding allegations of incapacity during service as a judge.” JQC Rule 2 (B) (1) (emphasis supplied). The31 

### Hearing Panel concluded that this JQC Rule “comports with the Georgia Constitution” and is supported by “[t]he fundamental objecti ves 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 Pane l 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 questi on 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 effe ctive only upon review and adoption32 

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

. See In re Judicial Q ualifications 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 C onstitution unchanged by recent amendments, Article VI, Section VII, Para graph 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 th e 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

- 4 34 (1) (314 SE2d 107) (1984)) , is not an issue we need decide today. What is clear from t he 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 t hat 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). Neithe r 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 Quali fications 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
198 3, 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 cond uct 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 ju dicial 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 juris diction over judicial34 

### candidates, it is confined to their activity in campaigning and politics relating to j udicial 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)

. T his 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 lang uage was n o t 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 candidat e is not exempt from any of the35 

### 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 activit ies), 3.9 (arbitration and medi ation), 3.10 (practice of law), 3.11 (financial activities), and 3.15 (A) (1) (annual financial reporting of extra

judicial 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 tim es 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) I nvestigating 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 p owers36 

### principles, because the General Assembly has the authority to regulate the conduct of its members. The Georgia Consti tution 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 e ither 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 198 3, Art. I, Sec. II, Par. III). And Judge Coomer cites the Georgia C onstitution ’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 the3 7 

### 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 G eneral Assembly, or committee meetings thereof, and in going there to or returning therefrom, except for treason, felony, or breach of the peace.”). In any event, t he JQC’s investigation here does not interfere with or subsume the legislative branch’s autho rity. 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. A nd a t the time the JQC initiated its investigation, Judge Coomer was no longer a memb er 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 , b y 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 that38 

### time. This does not violate separation of p owers 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 o f 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) (pre scribing duties of CFC , including duties to investigate financial disclosure reports), 21

- 5

- 50 (generally39 

### pre scribing duties of public officers and candidates for elected public office to file financial disclosures). Nothing about this statutory scheme strips the JQC of its con stitutional 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 financ e . See Code , Rule 1.1. Judge Coom er also argues that these proceeding s should have been stayed as a prudential matter while the investigations by the CFC and State Bar were pending

. T he re may be circumstances in which the JQC might consider such abstention appropriate, and we do not sugge st 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 matt er with alacrity and dispatch.40 

### 6

. The Hearing Panel applied the wrong standard for determini ng 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, t he 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 adm inistration 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 19 76, Art. V I, 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 ultimately41 

### was appropriate under only two of these categories, asserting generally that Judge Coom er’s conduct constitute s “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

. An d 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 Heari ng Panel found had been prove d

.

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 C onstitution 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, 1 973 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

- 3 28 (1) (454 SE2d 780) (1995); s ee 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] kn owing and willful misapplication of the law,

. . . would amount to bad faith and thereby implicate the Code of Judicial C onduct ” ) ; 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 in43 

### 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 G a. 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 ju dges 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 i n 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 th e 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 “ willful44 

### In other words, “willful misconduct in office” applies only to actions taken in bad faith an d 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 36 8) (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 non judicial 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 justi ce,” absent a finding of bad faith. The only cited constitutional basis for discipline that might apply here is the sub

- category of “conduct pre judicial to the administration of justice , ” to the extent that it involves “actions taken in bad faith by a ju dge acting outside [ his ] judicial capacity.” Matter of Inquiry Concerning a Judge No. 94

- 70 , 265 Ga. at 328 (1). And p lainly , 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.” ); s ee 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 ju dgment 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 b ad judgment or46 

### 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 Pane l’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 prove d 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 its elf 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, f alls 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 impo rtant position as attorney,47 

### counselor, and, ult imately, judge. Neither option

— violator or un informed

— is acceptable [,] and neither instills confidence in the judiciary. And in this case, there are too many examples of both. As to J udge Coomer’s dealing s with Filhart, the Hearing Panel found that Judge Coomer’s “conduct establishes a plain pattern of flout ing (or not knowing) the law[.] ” As to the campaign finance counts, the Hearing Panel concluded that “[a]gain and again, pre

judgeship 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 fai th 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 attorn eys and judges enjoy.” That word

— “ e xploited”

— suggests intentional action. Moreove r, the Report and Recommendation suggest ed 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 come s 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 thi s 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 ex actly what he was doing when he [ acted in the manner alleged in the various counts ]

. In conte xt, we cannot determine whether this is a bright

- line factual finding that every violation of law and rules by Judge49 

### Coomer w as done knowingly , or whether it i s 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 ; m ere 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 j udicial 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 whether50 

### 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 factu al 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 thi s 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 prove d 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 attenti on toward whether the Director proved bad faith for any of those counts ; and (3) reconsider what, if any, discipline is appropriate based on the51 

### revised findings

. 13 

### The Hearing Panel is directed to file that new Report and Recommendation with this Court wit hin 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 particip ating, and Colvin, J., disqualified.

13 We also d irect the Hearing Panel to use more precision in making factual findings in support of its conclusions regarding whether the Director has prove d 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 Disclos ure 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 1I N T H E S U P RE M E C O U R T S T A T E O F G E O R G IA

) ) I n r e : F o rm a l A d v i s o ry O p i n i o n 2 4 2 ) C a s e N o . _ ) ) ) J O C F o r m a l A d v i s o ry O p i n i o n 2 4 2
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ri n g P a n e l

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m i s s i o n R u l e 2 8 ( B ) ( 4 )

. T h e C o mm i s s i o n ' s I n v e s t i g a t i v e P a n e l , i n v o k

i n g C o mm

i s s i o n R u l e 2 8 ( B ) ( l ) , r e q u e s t e d t h a t t h e H e a ri n g P a n e l i s s u e

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h e n p u b l i s h e d a p ro p o s e d F o rm a l A d v i s o ry O p i n i o n 2 4 2 o n t h e w e b s i t e s o f t h e C o mm i s s i o n , t h e A dm i n i s t ra t i v e O f fi c e o f t h e C o u rt s , a n d t

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. A ft e r d u e c o n s i d e r a t i o n o f t h o s e c o m m e n t s , t h e H e a

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a n d w i ll a l s o p u b l i s h i t o n t h e w e b s i t e s l i s t e d a b o v e . T h e H e a r i n g P a n e l o r a n y
p e r s o n " a g g ri e v e d " b y F o rm a l A d v i s o ry O p i n i o n 2 4 2 h a s t w e n t y d a y s fr o m t h e d a t e o f t h i s fi l i n g t o p e t i t i o n t h e C o u rt fo r d i s c r e t i o n a ry r e v i e w . 1 C o mm i s s i o n R u l e 2 8 ( 8 ) ( 4 )

. T h e C o u rt m a y a l s o r e v i e w t h e o p i n i o n s u a s p o n t e . I d. W i t h t h i s e x p l a n a

t i o n , t h e H e a

r i n g P a n e l r e s p e c t fu ll y s u b m i t s F o rm a l
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i c i a l c a n d i d a t e . T h i s q u e s t i o n a p p e a r s n o t h a v e b e e n a d dr e s s e d i n

a n y e a r l i e r J Q C A d v i s o ry O p i n i o n . F o r t h e r e a s o n s s e t fo rt h b e l o w , t h e H e a ri n g
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c o n d u c t a r g u a b l y v i o l a t i v e o f t h e C o d e . H o w e v e r , i t a p p e a r s t h a t t h e a ll e g e d

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c o m p l a i n t c o n c e r nin g t hi s c o n d u c t h a s b e e n p r e s e n t e d t o t h e In v e s t i g a t i v e P an e l.
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p e r s o n w h o i s a j u d i c i a l c a n d i d a t e fo r a n y s u c h o f fi c e . " A p p l i c a t i o n , C o d e o f
J u d i c i a l C o n d u c t. A "

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J u d i c i a l C o n d u c t. O n e b e c o m e s s u c h a c a n d i d a t e a s s o o n a s o n e ( i ) a p p o i n t s o r fo rm s a c a m p a i g n c o m m i t t e e , ( i i ) m a k e s a p u b l i c a nn o u n c e m e n t o f c a n d i d a c y , ( i i i ) d e cl a r e s , fi l e s o r q u a l i fi e s a s a c a n d i d a t e w i t h t h e e l e c t i o n o r a p p o i n t m e n t a u th o ri ty , o r ( i v ) a u t h o ri z e s s o l i c i t a t i o n o r a c c e p t a n c e o f c o n t r i b u t i o n s o r s u p p o rt

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ll w i t h i n t h e C o m m i s s i o n ' s p u rv i e w .

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. 2 Case S18Z1356 Filed 06/11/2018 Page 4 of 4APPENDIX 2