The commission members' counsel pushed back against the district attorneys' request for an injunction, arguing it is premature and meritless. The injunction bid was supported by more than 80 current and former state and federal prosecutors and U.S. Department of Justice officials.
Josh Belinfante of Robbins Alloy Belinfante Littlefield LLC, arguing for the commission members, told Fulton County Superior Court Judge Paige Reese Whitaker that the district attorneys' basis for the injunction is the fear of being disciplined. He said that kind of hypothetical harm can't support the request.
"There seems to be this misnomer that this is some partisan witch hunt," Belinfante said.
He pointed out that the Peach State's new Prosecuting Attorneys Qualifications Commission has bipartisan roots, despite being approved by Republican state lawmakers in their latest legislative session.
Belinfante said the Georgia General Assembly has the authority to define the duty of state prosecutors and how they should be investigated and disciplined for failing to meet their obligations.
Judge Whitaker noted that the Georgia Supreme Court has yet to approve the commission's proposed rules, saying that process is likely to take some time.
Belinfante said commission members can start investigating complaints against prosecutors starting Oct. 1, but no disciplinary action would occur until the agency's rules are confirmed. He said that supports the commission members' argument that there is no imminent threat of discipline against district attorneys warranting an injunction.
"The injury must be pressing, and delay dangerous," Belinfante said. "Nothing has happened to warrant the broad injunction that the plaintiffs seek. There is no imminent harm. There's nothing that the commission has done to show otherwise."
The district attorneys — Sherry Boston, Flynn Broady, Jared Williams and Jonathan Adams — are concerned that their prosecutorial discretion is being thwarted by S.B. 92, the legislation that established the commission. Their case against the commission members was filed Aug. 2, the same day they sued the state in a related action also pending before Judge Whitaker.
Joshua Rosenthal of the Public Rights Project, arguing for the district attorneys Friday, said the statute is vague and leaves prosecutors in the dark about what conduct might leave them vulnerable to discipline. He said S.B. 92 "leaves too many questions undefined," creating "too much of a risk" that the commission members could interfere with prosecutors' constitutional right to exercise prosecutorial discretion.
Rosenthal conceded that the Georgia General Assembly has the authority to establish a watchdog for state prosecutors, but said the commission is in troubled waters when it comes to undermining the authority of district attorneys and solicitors general and second-guessing their decisions.
Gov. Brian Kemp said as he signed the bill that the new commission is targeted at "far-left" and "rogue" prosecutors who "refuse to uphold the law."
Critics are concerned the Peach State's conservative leaders simply want to get rid of reform-minded prosecutors unwilling to dedicate limited resources to low-level crimes such as marijuana possession and abortion.
Rosenthal said Adams, the district attorney for the Towaliga Judicial Circuit, had already withdrawn his policy not to prosecute adultery in case that ran afoul of the new legislation.
"As long as there's a possibility of investigation, plaintiffs are forced to limit their actions," Rosenthal said. "Their staff have a fear of getting their bosses in trouble knowing there's this statewide commission looking over their shoulder ready to pursue discipline."
The district attorneys have also restricted their public comments on prosecutorial philosophies in fear of retaliation by the commission, Rosenthal said.
Judge Whitaker said she thought the district attorneys' strongest argument related to free speech rights. She appeared to challenge their vagueness argument, saying at least one key piece of S.B. 92 is "very specific," and that the duties of state prosecutors are already well understood in Georgia.
The judge said there didn't appear to be anything preventing the commission from considering the allocation of resources in light of a prosecutor's charging decisions.
"Aren't I supposed to assume that the commission is going to carry out its duties in a reasonable way?" Judge Whitaker asked Rosenthal. "We are talking real hypothetical here."
The judge also indicated that prosecutors would be able to challenge the commission's decisions in state court. She said much of S.B. 92 appeared "very similar" to the state legislation behind Georgia's Judicial Qualifications Commission, which investigates complaints of judicial misconduct.
Judge Whitaker said she would aim to rule on the injunction request within the next couple of weeks.
"I don't think we actually are that pressed to do whatever we're going to do by Oct. 1," she said. "But I am going to endeavor to get this out as soon as possible."
The district attorneys are represented by David Dreyer and Quinton Washington of Washington Dreyer & Associates LLC, Joshua Rosenthal and Jonathan Miller of Public Rights Project, and Bruce Brown of Bruce P. Brown Law LLC.
The commission members are represented by Josh Belinfante, Chuck Boring, Carey Miller, Anna Edmondson and Javier Pico-Prats of Robbins Alloy Belinfante Littlefield LLC, and Chris Carr and Logan Winkles of the Georgia Attorney General's Office.
The case is Boston et al. v. Cowart et al., case number 2023CV383558, in the Superior Court of Fulton County, Georgia.
--Additional reporting by Emily Johnson. Editing by Adam LoBelia.
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