Thomas, J., dissenting
matter, the majority’s rule will prove difficult to administer. According to one group of amici, nearly all jurisdictions with annotated codes use private contractors that “almost invariably prepare [annotations] under the supervision of legislative-branch or judicial-branch officials, including state legislators or state-court judges.” Brief for State of Arkansas et al. as Amici Curiae 16–17. Under the majority’s view, any one of these commissions or counsels could potentially be reclassified as an “adjunct to the legislature.” Ante, at 11. But the majority’s test for ascertaining the true nature of these commissions raises far more questions than it answers.
The majority lists a number of factors—including the Commission’s membership and funding, how the annotations become part of the OCGA, and descriptions of the Commission from court cases—to support its conclusion that the Commission is really part of the legislature. See ante, at 9–10. But it does not specify whether these factors are exhaustive or illustrative and, if the latter, what other factors may be important. The majority also does not specify whether some factors weigh more heavily than others when deciding whether to deem an oversight body a legislative adjunct.
And even when the majority does list concrete factors, pivotal guidance remains lacking. For example, the majority finds it meaningful that 9 out of the Commission’s 15 members are legislators. Ante, at 9; see OCGA §28–9–2 (noting that the other members of the Commission include the State’s Lieutenant Governor, a judge, a district attorney, and three other state bar members). But how many legislative members are needed for a commission to become a legislative adjunct? The majority provides no answers to any of these questions. *** The majority’s rule will leave in the lurch the many
