By Johnny Edwards via The Atlanta Journal-Constitution:
Earlier this year, the director of the state’s judicial watchdog agency called a judge about his oversight of a business dispute and influenced him to withdraw from the case.
That involvement by the Judicial Qualifications Commission in a south Georgia lawsuit now is raising the kinds of concerns critics voiced when the Legislature overhauled the agency, an investigation by The Atlanta Journal-Constitution has found.
No formal complaints had apparently been filed against the judge with the JQC, nor was there a motion for him to recuse.
However, some high-profile politicians were attorneys in the case: Ken Hodges, at the time incoming president of the State Bar of Georgia and a candidate for the state Court of Appeals, and state Sen. John F. Kennedy, the Republican caucus majority leader and a member of the Senate Judiciary Committee.
Critics of the 2016 overhaul of the commission had worried that by giving lawmakers most of the power over it, the agency would turn into a political tool.
The lawsuit had started as a nasty battle among former friends over control of a business that managed an apartment complex and dozens of rental homes in Albany. But before the JQC’s call, the judge overseeing the case had been asking Hodges’ tough questions: How deeply involved had he been as a lawyer for an ex-partner before becoming the court-appointed receiver over the company? How did he get appointed to that job by a prior judge on the case?
The judge also had allowed the company’s majority shareholder to file a lawsuit accusing Hodges of a conflict of interest, seeking millions of dollars, and opening the door for more answers to be demanded through the discovery process.
“The case is beginning to look like an ‘everyone done someone a little wrong song,’” Judge L.A. “Buster” McConnell wrote in one email to attorneys in the case.
Then McConnell’s phone rang.
JQC Director Ben Easterlin told McConnell that several attorneys in the case were griping, and he questioned whether McConnell should stay on the case.
McConnell and Easterlin gave differing accounts to the AJC of the tone and content of their phone conversation. In McConnell’s telling, the message was unequivocal:
“Don’t sign another thing. Don’t do anything in this case. Get out of it, as of right now,” McConnell quoted Easterlin as telling him. “He said, ‘If you don’t, I’ll relieve you.’”
“I never had heard of, ‘Get off a particular case,’ without them filing a motion to recuse,” McConnell told the AJC. “Nobody filed a motion to recuse.”
Easterlin, however, told the AJC in late November that he only called the 75-year-old Houston County senior judge as a friend to counsel him about possibly being incapable of overseeing the complex case, given his age and his health problems at the time.
Easterlin, who spent eight years as the JQC’s chairman then became director last year, said he often gently counsels ailing judges into retiring, acting on his authority to investigate. He couldn’t cite another instance, though, where he talked to a judge about whether to exit only from a specific case.
“I gave him my advice, and he did what he wanted to do. But nobody told him he had to do anything,” Easterlin told the AJC.
McConnell easily could have misinterpreted the call as a request to get out of the case, Easterlin said. “But that was not my purpose.”
Text messages McConnell and Easterlin exchanged after the judge withdrew provide a different account. They show Easterlin indicated he was acting on behalf of the JQC. In the messages, provided to the AJC by the judge on Thursday, McConnell complains bitterly about being pushed off the case and asks to meet with the full commission about it.
In reply, Easterlin says there’s no reason, nor a procedure, for McConnell to do that. Easterlin also references a complaint — even though McConnell said he’s never been presented with one.
“As far as the matter of the complaint against you,” the text dated in September says, “that matter was resolved upon your recusal and the agreement with me regarding the extent of your future service as a senior judge. Thus the JQC considers the matter concluded.”
Asked again to explain his interactions with the judge, Easterlin on Friday told the AJC he was pushing McConnell to retire altogether, and he wanted to allow him to do so with dignity. He said McConnell suggested that he handle only easy matters, such as bonds and warrants that only take a day’s work.
“I tried to get him to agree that under the circumstances he had,” Easterlin said, “with all his personal problems, that he didn’t need to be trying cases. And he eventually agreed. Apparently, he changed his mind later and felt bad about it.”
McConnell told the AJC he did comment that he planned to slow down, but he said he made no agreement to relegate himself to simpler cases.
Under the JQC’s rules, the director’s job is to receive complaints, investigate them and make recommendations to the commission.
If there was no official investigation into Judge McConnell, the JQC director appears to have overstepped his authority in his phone call to him, said Clark Cunningham, a professor of legal ethics at Georgia State University College of Law.
Cunningham, who served on a committee that recommended revised rules for the JQC in 2016, said it’s inappropriate for the director to give advice — friendly or otherwise — to step off a specific case. “He is not a decision-maker,” the professor said. “He investigates, and he recommends.”
State Rep. Wendell Willard, R-Sandy Springs, a chief sponsor of the bill authorizing the JQC changes, said lawmakers wanted to put a stop to such informal influencing of judges by the agency. Easterlin can’t make such phone calls as a friend, Willard said, because any judge would likely interpret words from the agency head as a directive.
“He’s doing it in his capacity,” Willard said. “He’s the director of the JQC.”
A question of influence
If there was no complaint filed against the judge, who contacted Easterlin?
That’s been a concern of the attorney for the majority shareholder in the business. He tried to question Hodges about it during a July deposition, but Hodges wouldn’t answer. Not only did his attorney object, but so did Sen. Kennedy, who was at the deposition representing another partner in the business.
Both Kennedy and Hodges’ attorney said any communications to the JQC are privileged and confidential. The current judge in the case later upheld their objections.
Easterlin told the AJC that he had spoken to attorneys in the case about Judge McConnell, but he declined to say which ones.
He said he first heard about problems in the case “through the grapevine,” but said he couldn’t recall specifically who told him.
The JQC director also said he talked to people who were not parties to the case. Those included several judges, lawyers, and district court administrators in the area who he said gave mixed reviews of McConnell’s performance on the bench.
Both Hodges and his lawyer told the AJC they didn’t contact the JQC, and they don’t know who did.
“Clearly, I wasn’t happy being added as a party defendant,” Hodges said, “but I don’t recall talking in depth to anyone other than my own attorney about it.”
Kennedy has not responded to repeated messages from the AJC requesting interviews.
Johnny Spurlin, the attorney for the company’s majority shareholder who is suing Hodges, said the JQC director never consulted him about McConnell.
One of the critics who had campaigned against the JQC overhaul said that allowing lawmakers to appoint more than half of the commission injected politics into an area where politics shouldn’t belong. “What Judge McConnell alleges is exactly the sort of dangerous, unethical scenario we predicted would happen,” Sara Totonchi, executive director for the Southern Center for Human Rights, told the AJC in an email.
Impartiality in question
After McConnell withdrew, Hodges attempted to influence the selection of a replacement judge, case records show.
Hodges admitted in a deposition that he called an assigning judge on his cell phone and suggested someone.
That assigning judge, Joe C. Bishop of Terrell County, told the AJC he didn’t know Hodges was a defendant in the case when they spoke. Rather, Bishop thought that because Hodges had won election for the Appeals Court seat, he was looking to move a case along so he could wind down his law practice.
“If he had told me he was a litigant in the case, that I would remember,” Judge Bishop said. “I probably would have said, ‘Thanks, and we don’t need to talk anymore.’”
In the deposition, Hodges told the attorney representing the majority shareholder that he recommended a senior judge based in Albany because McConnell, who lives two hours away in Warner Robins, had difficulty moving the case along. Hodges also pointed out that the judge he suggested wasn’t appointed.
That conversation wasn’t improper, Hodges told the AJC Thursday, because Bishop wasn’t presiding over the case.
“There was nothing nefarious about it,” he said. “I was trying to move the case. It was in stagnant-land, because it didn’t have a judge.”
All along, though, there had been controversy about whether judges presiding over the dispute were impartial.
Spurlin, the attorney for the majority shareholder, had accused the first judge in the case of trampling his client’s rights and giving incredible leeway to Kennedy and Hodges.
In the days leading up to the first hearing in the case, Kennedy had asked Hodges if he would serve as receiver for the business. Hodges said he would, though he previously had represented the ex-partner in the company who ignited the ownership dispute by selling his interest in the business twice.
Dougherty County Chief Judge Willie Lockette then granted Kennedy’s request to put the company in Hodges’ hands, without giving the majority shareholder any advance notice or a chance to be heard, even though the receivership complaint named him as a defendant. Lockette then failed to hold a hearing within 30 days, as required by law, and instead, over the objection of the majority shareholder, issued an order that extended the receivership indefinitely, court records show.
Spurlin later persuaded Lockette to recuse himself, telling the judge he had violated his client’s rights in seizing the company and putting it in Hodges’ control. He also said that Lockette allowed his relationship with Hodges, Albany’s former district attorney, to cloud his judgment. The judge denied that, but agreed to step down.
In a ruling Tuesday, the current judge in the case said that the majority shareholder should have been given the opportunity to present evidence and to confront, contest or cross examine witnesses. “The court did not balance the equities of the parties based on evidence presented by both parties,” the ruling says.
Since the majority shareholder wasn’t given such opportunity, and because he objected to extending the order setting up the receivership, it violated state law, the ruling states.
“From the start, and all the way to the finish, every step of the way was a concerted effort by political friends and highly-connected people to influence the outcome in this case by getting favorable people appointed,” Spurlin said. “That’s why we immediately started kicking and screaming and objecting from day one.”
Lockette declined to talk with the AJC.
Hodges will take office as a Court of Appeals judge early next year. No trial date has been set in the lawsuit against him.
ABOUT THE JQC
Until two years ago, Georgia’s Judicial Qualifications Commission had been a constitutionally independent agency, unbeholden to state lawmakers. But after the judicial watchdog agency removed dozens of judges for misconduct from 2007 to 2016, it earned the wrath of some officials, who said the agency had misused its powers.
So lawmakers pushed an amendment to the state Constitution and follow-up legislation that stripped the agency of its independence. Now, four of the seven members of the commission’s investigative panel are appointed by key legislators, the Supreme Court appoints two members and the governor appoints another. A new three-member hearing panel consists of one member appointed by the governor and two appointed by the Supreme Court.
Critics had warned that the change would result in political interference in the commission’s work. They also noted that one legislator who had sponsored the amendment, Johnnie Caldwell Jr., had previously served as a judge until he was investigated by the JQC and stepped down.
From the Rules of the Judicial Qualifications Commission of Georgia
Powers and Duties of the Director — The Director shall have the duty and authority to: receive and screen complaints, refer complaints to other agencies when appropriate, conduct preliminary investigations, recommend to the Investigative Panel and upon authorization conduct full investigations, notify complainants about the status and disposition of their complaints, make recommendations to the Investigative Panel on the disposition of complaints, file formal charges when directed to do so by the Investigative Panel, prosecute formal charges, file notices of exceptions to the findings, conclusions, recommendations for sanctions, or orders of dismissal of the Hearing Panel, and brief and argue matters on review by the Supreme Court.