DeKalb County, GA — DeKalb County District Attorney Sherry Boston is among four prosecutors challenging Senate Bill 92, which is a law enacted in the 2023 legislative session that creates the prosecuting attorneys qualifications commission.
The commission has the authority to investigate and remove local district attorneys and solicitors general. The commission is made up of eight members, five of which are assigned to an investigative panel and three to a hearing panel. The governor, lieutenant governor, speaker of the House and Senate Committee on Assignments appoint members to the commission.
Two lawsuit will be filed on Wednesday, Aug. 2. The four district attorneys who are the plaintiffs are Boston, Towaliga District Attorney Jonathan Adams, Augusta District Attorney Jared Williams, and Cobb District Attorney Flynn Broady.
The prosecutors in Boston v. State of Georgia are represented by Public Rights Project, which is a national nonprofit that works with local governments to protect civil rights.
“Today are suing the state of Georgia and the members that have been appointed to the new commission created by SB 92, the prosecuting attorneys qualifications commission,” said Public Rights Project Legal Director Josh Rosenthal. “We are seeking a declaration that SB 92 is unconstitutional under the Georgia and federal constitutions, and an injunction barring the commission from investigation complaints or starting disciplinary proceedings.”
Under Georgia law, district attorneys take an oath of office after they are elected in which they swear to faithfully and impartially, and without fear, favor or affection, discharge our duties, Boston said.
“Recent actions by some in the Georgia General Assembly show that instead of making decisions without fear, they would prefer that fear guide prosecutors’ every move,” Boston said.
She added that the law gives the commission the power to second-guess DAs, their policies, and their decisions. If the commission removes a prosecutor, the attorney would not be able to serve as a DA or solicitor general in any state judicial circuit for 10 years.
During a press conference on Wednesday, the district attorneys raised concerns about maintaining prosecutorial discretion and independence.
“One of the most important responsibilities we have as district attorneys is to determine which cases to pursue, also known as prosecutorial discretion,” Boston said. “My top priority is to keep my community safe, but there is no one-size-fits-all formula to accomplish that. Every prosecutor must decide which crimes to prioritize and where to adopt more holistic approaches to improve community safety, like substance abuse treatment or job training.”
She added that SB 92 is an assault on democracy as well.
“This law is a direct threat to every Georgian who exercises their right to vote – their right to choose the person who they think best represents their values in the courtroom,” Boston said. “It says to them, if the state doesn’t like your choice, the state will choose for you.”
Adams represents parts of rural Georgia and the conservative values of his constituents.
“Although I may disagree with DAs decisions in other communities, I believe it is their right to make those decisions and represent their community and their constituents,” Adams said. “As a member of the judicial branch, I believe we have a right and a need to make hard decisions regarding what is appropriate to prosecute.”
According to a press release, SB 92 allegedly violates the Georgia Constitution in four ways:
– Separation of powers (interference with prosecutorial discretion). The State Legislature does not have the authority to direct or undermine district attorneys’ exercise of prosecutorial discretion.
– Free speech under the federal and state constitutions. The law restricts the First Amendment free-speech rights of DAs as candidates and officials, punishing prosecutors for articulating their prosecutorial philosophies and for being clear with their communities about how they will carry out justice.
– Improper delegation to the new commission to define the grounds of discipline. The State Legislature improperly delegated power to the PAQC by providing vague and broad authority. In addition, the complaint argues that SB 92 does not provide local prosecutors with fair notice about the types of statements, conduct, and policies that subject them to potential review and discipline by the PAQC.
– Violation of the due process clauses of the federal and state constitutions. The U.S. and Georgia Constitutions require “fair notice of conduct that is forbidden or required” before the state can deprive someone of their elected office.
“Not only is SB 92 unconstitutional, this new Commission is also unnecessary and wasteful,” Boston added in the press release. “Georgia already provides other ways to address misconduct by prosecutors–including Bar discipline, impeachment, and ultimately, the ballot box.”
During the press conference, Boston said the DAs are filing the lawsuit now in an effort for the courts to hear the matter before Oct. 1, which is when the commission is set to begin taking complaints. Gov. Brian Kemp signed SB 92 on May 5, and it went into effect on July 1.
The members of the commission were also appointed and began their initial terms on July 1. The commission could also begin its work effective July 1, but no complaints can be filed until October. The commission must establish its rules and regulations by Oct. 1 as well.
To read the full bill, click here.
(L to R) DeKalb District Attorney Sherry Boston, August District Attorney Jared Williams, Towaliga District Attorney Jonathan Williams and Cobb District Attorney Flynn Broady announced a lawsuit challenging Senate Bill 92 on Aug. 2, 2023, at the DeKalb County Courthouse. Photo by Zoe Seiler.
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