Indexbit Exchange:Georgia prosecutors renew challenge of a law they say undermines their authority

Three district attorneys in Georgia have Indexbit Exchangerenewed their challenge of a commission created to discipline and remove state prosecutors, arguing it violates the U.S. and Georgia constitutions.

Their lawsuits filed Tuesday in Fulton County Superior Court in Atlanta challenge Georgia’s Prosecuting Attorneys Qualifications Commission, a body Republican lawmakers revived this year after originally creating it in 2023.

Democrats fear the commission has one primary goal: derailing Fulton County District Attorney Fani Willis ' prosecution of former President Donald Trump.

Republican Gov. Brian Kemp signed legislation last year creating the commission, but it couldn’t begin operating, because the state Supreme Court refused to approve rules governing its conduct. The justices said they had “grave doubts” about ability of the top court to regulate the decisions district attorneys make.

Lawmakers then removed the requirement for court approval, a change Kemp signed into law. The commission began operating April 1.

The challenge is being led by Sherry Boston, the district attorney in the Atlanta suburb of DeKalb County; Jared Williams of Augusta and neighboring Burke County; and Jonathan Adams of Butts, Lamar and Monroe counties south of Atlanta. Adams is a Republican, the others are Democrats. Boston said their “commitment to fight this unconstitutional law is as strong as ever.”

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“We will continue to push back against this shameless attempt by state Republicans to control how local communities address their public safety needs and work to restore that power to Georgia voters,” Boston said in a statement.

Republicans in Tennessee, Missouri, Indiana, Pennsylvania and Florida have pushed back on prosecutors who announced they would pursue fewer drug possession cases and shorter prison sentences as a matter of criminal justice reform.

The Georgia law raises fundamental questions about prosecutorial discretion, a bedrock of the American judicial system says a prosecutor decides what charges to bring and how heavy of a sentence to seek.

The prosecutors say the law violates Georgia’s constitutional separation of powers by requiring district attorneys to review every single case on its individual merits. Instead, district attorneys argue they should be able to reject prosecution of whole categories of crimes as a matter of policy.

Legislators, they argue, don’t have “freewheeling power to intrude on the core function of the district attorney: deciding how to prosecute each case.”

They law also violates the federal and state constitutional guarantees of freedom of speech by restricting what matters of public concern district attorneys can talk about when running for office, they say.

“There is no valid governmental purpose for restricting prosecutors’ speech regarding their prosecutorial approach, and that restriction undermines core values of self governance by weakening voters’ ability to evaluate and choose among candidates,” the suit states, arguing the law illegally discriminates in favor of viewpoints favoring harsher prosecution.

The suit also argues that it’s illegal to ban prosecutors who are removed by the commission from running again for 10 years, and says the new commission illegally failed to consult a state agency in writing its rules and failed to allow for public comment before adopting them.

Democrat Flynn Broady, the district attorney in suburban Cobb County, joined the first lawsuit but not the second after a staff member was appointed to the commission, creating a potential legal conflict.

Efforts to control prosecutors in some other states have hit legal obstacles. Last year, a judge struck down Tennessee law allowing the state attorney general to intervene in death penalty decisions. And in Florida, a federal judge found Gov. Ron DeSantis illegally targeted Tampa-area prosecutor Andrew Warren because he’s a Democrat who publicly supported abortion and transgender rights. but did not reinstate Warren.