By Rosie Manins

Georgia judges need better education on appropriate social media use, an investigator with the Judicial Qualifications Commission of Georgia said in a special concurrence to an order dismissing a case over a state trial court judge’s Facebook post.

JQC hearing panel member Richard L. Hyde said in his special concurrence Monday that the commission’s case against Cherokee County Superior Court Judge David Cannon Jr. raised the “significant” question of to what extent, if any, do Georgia judges leave their First Amendment rights to free speech at the courthouse door.

Judge Cannon faced ethics charges, brought in July, over his public Facebook post supporting controversial comments from a Cherokee County Sheriff’s Office captain at a press conference that the suspect in the March 2021 Atlanta-area spa shootings had a “bad day.” The case against the suspect over the shootings in Cherokee County could have come before Judge Cannon, the JQC alleged.

Hyde, who is not attorney, is a white collar investigator at Balch & Bingham LLP who fills the “citizen member” role on the three-person JQC hearing panel. He wrote that he agreed “in the interest of comity” with the other panelists’ reasoning in their dismissal of the seven formal charges brought against Judge Cannon.

But he said he couldn’t find the panel’s specific authority to dismiss charges before a public hearing in such a case. And he highlighted judicial social media use as an issue that needs more attention.

“This hearing panel and our [Georgia] supreme court should give unambiguous direction on this issue,” Hyde said. “We must also do a better job of educating judges as to the appropriate use of social media.”

In an order also filed in the Georgia Supreme Court case on Monday, the JQC hearing panel dismissed the charges against Judge Cannon, upon the request of the commission’s director, Charles “Chuck” P. Boring. The presiding officer of the JQC hearing panel, Fulton County Superior Court Judge Robert C.I. McBurney, said dismissal was the right outcome in the case.

“Judge Cannon has waived his hearing, which arguably moves these proceedings to the point at which a disposition is required,” Judge McBurney said. “Given that no evidence has been presented, the only legally proper outcome is dismissal.”

Boring told the court in early April that the JQC and Judge Cannon had agreed to a “nonpublic resolution” in the case, asking the hearing panel to dismiss the charges, after Judge Cannon had waived his right to a public hearing.

Boring told Law360 that, as noted in the Georgia Code of Judicial Conduct, judges must expect to be the subject of constant public scrutiny and therefore must accept restrictions on their behavior, including social media activities, that might be viewed as “burdensome by the ordinary citizen.” He said the JQC provides constant and regular training for judges, including on social media use as it relates to judicial ethics, and is a resource for judges with associated questions.

“Judges should be mindful that their posts and commentary on social media can run afoul of the Code of Judicial Conduct, especially in scenarios where posts and commentary reference pending cases and/or issues that are likely to come before them in their respective roles as judges,” Boring said Tuesday.

Hyde told Law360 on Tuesday that his special concurrence “speaks for itself.”

Judge Cannon defended his Facebook post about the captain’s comments over the spa shootings, in which eight people were killed, and claimed the JQC’s formal charges violated his constitutional free speech rights.

After investigators apprehended Cherokee County resident Robert Long for the March 16, 2021, spa shootings, Capt. Jay Baker said at a press conference the following day that Long was fed up, at the end of his rope, and that “yesterday was a really bad day for him.” The comments sparked public outrage.

Judge Cannon said publicly on Facebook on March 18, 2021, that he interpreted the captain’s remarks as a summary of what the suspect had told investigators, as opposed to the captain’s own beliefs, case records show.

“Jay was not saying from Jay’s perspective that the accused had a bad day,” Judge Cannon reportedly posted. “The real story should be about how an accused mass killer was apprehended 200 miles away via incredible work of our public safety and law enforcement agencies within hours.”

Judge Cannon said in his response to the formal charges that he commented on the case in the belief it had been assigned to a different Cherokee County Superior Court judge. The captain is the brother of Cherokee County Superior Court Judge M. Anthony Baker, and Judge Cannon said he felt obliged to support his comments, knowing that Judge Baker could not.

“While Georgia’s Code of Judicial Conduct contains no per se rule against a judge speaking publicly about contested legal and political issues, the Georgia Judicial Qualifications Commission has exceeded and abused its authority and violated respondent’s constitutional rights by applying other provisions of the Code of Judicial Conduct in such a way as to suppress, impede, and chill respondent’s free speech rights,” Judge Cannon said in August.

Hyde said in his special concurrence that “deference is due” to the agreement between Judge Cannon and Boring, although he noted that no formal waiver of a hearing was recorded in the case. He said in a footnote that a private admonition of a judge by the JQC investigative panel is allowed with the judge’s consent, but not after the filing and service of formal charges. The JQC rules appear to allow dismissal of formal charges only after a hearing before the hearing panel, Hyde pointed out.

“Perhaps we should consider a specific rule to allow the dismissal by the director (with oversight by the investigative panel) after formal charges are filed but before a hearing,” Hyde wrote.

The authority issue was also addressed by Judge McBurney in the single-page order dismissing Judge Cannon’s charges. He reiterated that Judge Cannon had waived his right to a public hearing and consented to the dismissal.

“He and the JQC’s investigative panel have apparently reached what the director describes as a ‘nonpublic resolution’ of the charges,” Judge McBurney said. “While this disposition is certainly within the purview of the director and the investigative panel, as the concurrence to this order observes, the mechanism for achieving it is not plainly spelled out in the JQC’s rules.”

Judge McBurney said the investigative panel can dismiss a matter after ordering a full investigation but before formal charges are brought, or it can dismiss formal charges after a final hearing on the merits. Regardless, dismissal is appropriate in Judge Cannon’s case, he said.

Counsel for Judge Cannon did not immediately respond to questions about the case on Tuesday.

Judge Cannon is represented by S. Lester Tate III of Akin & Tate PC.

The JQC is represented by its director Charles “Chuck” P. Boring.

The case is In re: Inquiry concerning Judge David Cannon Jr., case number S21Z1298, in the Supreme Court of Georgia.

–Additional reporting by Jack Karp and Kevin Penton. Editing by Jay Jackson Jr.