Category: Judicial

In a Bid for a Federal Judgeship, Dax Lopez Gains Both Support and Opposition

Several prominent Republicans recently sent a letter of recommendation to Senators Johnny Isakson and David Perdue calling for the confirmation of DeKalb County State Court Judge Dax Lopez to a position on the federal District Court in Atlanta. A story in the Daily Report says those signing the letter of recommendation include Georgia House Judiciary Committee Chair Wendall Willard, Georgia GOP General Counsel Anne Lewis, Georgia GOP Treasurer Mansell McCord, and Vice-Chairman of the House Judiciary-Non Civil Committee BJay Pak.

“As conservatives, we recognize that the constitutional obligation of a judge is to decide cases based on the text of the law and not policy preferences,” the letter says. “We know that Judge Lopez views the law the same way.”

Lppez was nominated for the seat last summer, after previous nominee Michael Boggs withdrew his name from consideration because of objections by Democrats over positions he held while in the Georgia legislature. The Daily Report story fills in the candidate’s background:

Lopez was born in Puerto Rico and moved with his family to Augusta when he was 6. When he was appointed to the DeKalb bench in 2010, Lopez, who described himself as a Republican in a 2010 interview with the Daily Report, became only the second Latino trial court judge in Georgia. When Lopez campaigned in a nonpartisan race to retain his judicial post in 2012, he garnered support from Democrats. If confirmed, he would become the first Latino federal judge in the state’s history.

But Lopez’s nomination has drawn opposition, largely stemming from his longtime position as a board member of the Georgia Association of Elected Officials (GALEO). Lopez was on GALEO’s board when Gov. Perdue appointed him to the DeKalb bench, and Lopez remained on the board when the White House nominated him to the federal bench.

Although Lopez has since resigned from the GALEO board, his association with the non-partisan organization that has advocated for immigration reform and voting rights has caused concern from some who say he is unfit for the federal bench. Cobb County Sheriff Neil Warren and Gwinnett County Sheriff Butch Conway sent letters to Isakson and Perdue opposing the nomination, as did Senator Michael Williams of Cumming, who said “by word and action, Judge Lopez identifies with the philosophical position” of GALEO. Lopez is also opposed by D.A. King of the anti-illegal immigration Dustin Inman Society, and by Phil Kent, who is Governor Nathan Deal’s appointee to the state Immigration Enforcement and Review Board.

The fact that Lopez is a graduate of the Coverdell Leadership Institute, the forerunner of the current Republican Leadership for Georgia program, should make him acceptable to those on the right. Yet, in the same way Congressman Paul Ryan’s support for immigration reform may deny him election to Speaker of the House, Lopez’s association with the pro-immigration group GALEO may doom the possibility of moving to the federal bench.

Lopez has not yet had a hearing before the Senate Judiciary Committee.

U.S. Appeals Court Blocks Enforcement of the EPA’s Waters of the US Rule

The U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay of the “Waters of the United States” rule that opponents say would have given the Environmental Protection Agency jurisdiction over small irrigation ponds, drainage ditches, and other waters that wouldn’t be considered navigable. The rule was opposed by many Georgia elected officials, including Senators Johnny Isakson and David Perdue, and the entire Georgia House delegation.

Georgia was one of the states that appealed to the Sixth Circuit for relief. In a statement issued Friday, Attorney General Sam Olens praised the ruling.

I am pleased that the Sixth Circuit has granted a nationwide stay of the burdensome Waters of the United States rule. Under this illegal rule, Georgia families, farmers, and businesses would be subject to excessive and intrusive federal regulation. As the federal government continues to issue massive and unconstitutional executive directives at an alarming rate, I remain steadfast in my commitment to protect and defend the interests of Georgians,” said Olens.

As the Sixth Circuit said it its ruling, “A stay temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new Rule and whether they will survive legal testing. A stay honors the policy of cooperative federalism that informs the Clean Water Act and must attend the shared responsibility for safeguarding the nation’s waters.

According to National Hog Farmer, the ruling comes a month after a North Dakota District Court issued an injunction against the rule’s enforcement. That injunction applied to 13 states.

But, said the Court of Appeals, “In light of the disparate rulings … issued by district courts around the country – enforcement of the rule having been preliminarily enjoined in 13 states – a stay will, consistent with Congress’s stated purpose of establishing a national policy, restore uniformity of regulation under the familiar, if imperfect, pre-rule regime, pending judicial review.”

In reaching its decision, the court found that there’s a substantial likelihood that the EPA’s WOTUS rule fails to comply with the Supreme Court’s instructions in previous Clean Water Act cases and that the agency’s actions in the rulemaking process, to which the NPPC objected at the outset, are “facially suspect.”

The stay iasued by the Sixth Circuit will remain in effect until further notice.

Georgia Joins Lawsuit Against EPA’s Air Quality Plan

Last week, we told you about the U.S. Environmental Protection Agency’s Clean Power Plan, which some have estimated will increase electricity prices in Georgia by 25%. The EPA’s regulations have been denounced by Georgia’s Senators and Public Service Commissioner Tim Echols, among others.

Now, Georgia has joined a lawsuit along with 16 other states that would overturn regulations involving industrial plants brought about by a lawsuit filed by the Sierra Club. It is still considering whether to join a similar lawsuit over the Power Plan.

In a prepared statement, Attorney General Sam Olens said,

Today I join a broad coalition of attorneys general in challenging the EPA’s latest tax on America’s consumers. The EPA has issued a decision that will make it more expensive for Georgia’s families to heat and cool their homes, and for Georgia’s businesses to keep the lights on and the machines running. Everyone who has seen a truck move after a red light understands this issue; it is important for Georgia power plants and industries to keep living up to their responsibilities on overall emissions, but this new mandate is simply the result of EPA working with the Sierra Club in yet another example of “sue and settle” decision-making.

EPA’s new rule also demonstrates once again that EPA has no respect for the states’ primary role in determining how to meet emissions targets. Georgia’s Environmental Protection Division, working cooperatively with other state agencies, has done an excellent job ensuring that Georgia’s industrial plants operate in an environmentally responsible manner. The EPA’s new rule is a costly and unnecessary burden.

You can view the suit, which was filed as a petition for Review in the United States Court of Appeals for the District of Columbia Circuit below the fold. Read more

Conservatives in Georgia, Are You Listening?

Whether it’s while running for city council or for Congress, activists rallying at a conference, or just every day folks trying to swing a moderate their way, Republicans can’t stop talking about serving justice. We’re ‘tough on crime!’ and we tout how many awful people we ‘put away’ in a certain period of time. Constituencies expect it and it seems to be low-hanging fruit for many hard (R’s)…but what they don’t know is they are all wrong.

The justice system has long been on the decline and in an era where Americans are becoming less and less trustworthy of the process from arrest to probation, Republicans shouldn’t be showcasing what they believe to be effectiveness in the legal system.

Mandatory minimum sentencing practices came about in the late 1980’s and early 1990’s in response to criticism that judges had too much power. Additionally, it was part of a crackdown on certain offenses to serve as a deterrent – one that has since be deemed virtually ineffective.

We made some mistakes. It’s okay to admit that. It’s even better to admit that there have been a series of unintended consequences from the enactment of these laws. There will likely bemore with any reforms we make. This is trial and error, but we have to start somewhere. The important thing is that we acknowledge our failures and work to remedy them.

First, and most conservatively, there are fiscal and economic repercussions to these mandatory minimum sentences:

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Faith Leaders Call for Clemency as Georgia Prepares to Execute Kelly Gissendaner

The state of Georgia is preparing to execute Kelly Renee Gissendaner at 7:00 PM on Monday, March 2nd. If this continues as planned, her execution will be Georgia’s third of 2015 and our first execution of a woman in 70 years.

While serving time in prison for the murder of her husband, Gissendaner studied theology through a program run by a partnership of Atlanta schools including Emory’s Candler School of Theology. The New York Times wrote last week of Gissendaner’s experience and transformation through her studies and Christian faith along with her development of an unlikely friendship with the with the German theologian Jürgen Moltmann.

In Ms. Gissendaner’s clemency petition, which includes detailed testimony from inmates and former wardens, one guard discussed her calming effect on women who were suicidal or had mental illnesses.

“The other inmates could see when inmates were being escorted across the yard with cut-up or bandaged arms from attempted suicides, and would yell to Kelly about it,” said a former guard, Marian Williams, who enjoyed talking with Ms. Gissendaner about the Bible. “Kelly could talk to those ladies and offer them some sort of hope and peace.”

Professor Moltmann, who has written of his own remorse at having fought in the German Army, offered his own idea of what awaits his friend. “If the State of Georgia has no mercy,” he said, “she has received already the mercy of Heaven.”

Georgia’s Board of Pardons and Parole has denied Gissendaner’s clemency request. This board is the sole source of pardons in the state – Georgia’s governor does not have the power of clemency. Nonetheless, hundreds of Georgia faith leaders are calling for mercy and have issued an open letter asking for commutation of her sentence to one of life without parole. The letter notes that Kelly has prevented other inmates from taking their own lives on multiple occasions and quotes a correctional officer who stated that “her witness has been an amazing beacon in a very dark place.”  Barring a surprising reversal, our state will end that witness Monday.

HB 56 Hopes to Regulate No-Knock Warrants

The police practice of executing no knock search warrants came under criticism last year with the botched case of 18 month old Bou Bou Phonesavanh. Officers executing the warrant late in the evening had hoped to find drugs or weapons, but they found neither, nor did they locate a drug dealer. Upon entering the house, the officers deployed a flash bang grenade in order to distract the home’s occupants. The grenade landed in a crib holding the baby and exploded, injuring Bou Bou, which led to expensive medical treatment that the family could ill afford.

At present in Georgia, the use of no-knock warrants is lightly regulated, if at all. In order to receive a search warrant, an officer must go before a judge and swear an oath explaining the probable cause for needing the warrant. And in practice, officers can request that they can execute the warrant without knocking on the door and identifying themselves first. While meant to be used sparingly, judges in some jurisdictions reportedly issue no-knock warrants up to 80% of the time.

To address this issue, Dawsonville Republican Rep. Kevin Tanner wrote House Bill 56 in order to codify the use of no knock warrants and provide a method of monitoring their use. The bill specifically defines a no knock warrant, and sets up several conditions that must be satisfied before one can be issued. Under the bill, in order for a judge to issue a no knock warrant to an officer, the warrant request would have to have been reviewed by that officer’s supervising officer, who then must accompany the first officer in the warrant’s execution. Except for good cause, the no knock warrant must be executed between 6 AM and 10 PM, and the applying officer must testify that knocking and announcing the police presence would cause an imminent danger to life or the destruction of evidence.

In addition, any law enforcement agency that uses no knock warrants must develop written policies for their use that can be examined by the general public. The bill also requires each judge who issues any type of search warrant to produce a monthly report detailing the number of warrants issued and the number of no knock warrants requested and executed. Read more

Senator Elect Perdue Discusses Activist Judges and Boggs Nomination

Earlier this week, Senator Elect David Perdue addressed a group of Federalist Society lawyers in Atlanta. In one of his first public speaking appearances since being elected to the US Senate this November, Senator Elect Perdue made it clear to his audience that he would take a hard stance against activist judges as a member of the Senate Judiciary Committee. Excerpts of his address from the Daily Report Online:

“I’m not a lawyer, but I hope to bring to that committee just a common-sense approach…I believe you go back to the Constitution, and you uphold what our founders had in mind to begin with, not what somebody in 1912 thought it meant or what some judge felt in 1998, but what did the founders really believe. I personally take a very hard stance about an activist judge. I’m sorry, but they shouldn’t create law.”

Senator Elect Perdue also said he expected to be “very involved” with the judicial nomination process adding that he would be “very thorough” in vetting potential judicial appointees. He also expected to see at least one United States Supreme Court vacancy arise during his first term in the Senate.

Perdue also briefly discussed the Michael Boggs nomination, and said he has yet to meet with him. Boggs is a former state legislator and current Georgia Court of Appeals judge who is presently awaiting confirmation to a seat on the Northern District of Georgia bench. His nomination has been stalled by the Democratic-controlled Senate Judiciary Committee. Perdue said he would like to get Boggs’ perspective so as to decide for himself.

Michael Boggs Could Get Judicial Confirmation with GOP Senate

Michel Boggs, President Obama’s nominee for a position on the U.S. District Court in Atlanta, could find a more friendly reception from a Senate Judiciary Committee headed by a Republican than he found with the current Democratic led one.

Confirmation of Boggs, who was nominated pursuant to an agreement with Georgia’s two Senators, has stalled out in the Judiciary Committee because of positions he took while in the State Legislature on gay marriage, a change to Georgia’s flag, and creating a registry of doctors who perform abortions.

According to the Daily Report, either someone on the Judiciary Committee would need to change their position during the lame duck, or Boggs would need to be remominated after the first of the year.

“I would be cautiously optimistic” about Boggs’ nomination going forward, said Randy Evans, a McKenna Long & Aldridge partner with close connections to state and national Republicans. Evans, who co-chairs Gov. Nathan Deal’s Judicial Nominating Commission, said he does not expect Boggs to get a confirmation vote during Congress’s upcoming lame duck session while Senate Democrats still hold the majority.

Evans also said that, given the president’s commitment to Boggs and the deal that led to his nomination, the Georgia appellate judge would have “a reasonable chance” of securing a newly constituted Senate Judiciary Committee’s approval and then winning a simple majority of the Senate under relaxed filibuster rules adopted last year.

Senator-Elect David Perdue says Boggs deserves serious consideration. Perdue hopes to meet with Boggs and other as-yet-unconfirmed nominees once the new session starts in January.

AG Eric Holder to Resign Today

Breaking.

Attorney General Eric Holder will announce Thursday that he will resign after six years at the Justice Department helm. The attorney general has agreed to remain in his post until the confirmation of his successor, a Justice Department official confirmed to CNN.

At a formal announcement later Thursday, Holder plans to express his personal gratitude to President Barack Obama for the opportunity to serve in his administration and to lead the Justice Department, which he will call the “greatest honor of my professional life.”

As for his replacement, let the games begin.

Lawsuit Challenges Limitations on Guns on School Property

In the 2014 Georgia General Assembly session, legislators passed two bills relating to second amendment rights: House Bill 826 and House Bill 60, known colloquially as the “Guns Everywhere Bill.” Except that everywhere doesn’t really mean everywhere, including in many cases if the property owner chooses to prohibit guns.

The Gwinnett Daily Post reports that a Snellville man has filed a lawsuit seeking to overturn a decision by Gwinnett County Public Schools that he could not bring his weapon onto school property.

Phillip Evans, whose child attends Centerville Elementary, seeks an injunction from being arrested, cited or prosecuted for carrying a weapon on property owned or leased by the school district.

In the 27-page lawsuit obtained by the Daily Post, Evans said he asked district officials if his Georgia Weapons Carry License would be recognized on school property. Jorge Gomez, the district’s executive director of administration and policy, said it would be a crime if Evans carried a firearm on school property, according to the lawsuit.

The school district would also seek to prosecute Evans, and issue a criminal trespass warning against Evans “from entering all Gwinnett County School District property.”

At issue are conflicting provisions in the two gun bills. HB 826 appears to allow guns to be carried in “school safety zones.” HB 60 limits the same code subsection to note that it’s only permitted to have a gun in one’s vehicle while parked at or driving through a safety zone. The Georgia Attorney General’s office produced an opinion that since HB 60 was signed after HB 826 was, its language takes precedence. Others, including Students for Concealed Carry, argue that the language in the two laws should be merged since there are portions that are not in direct conflict with each other.

Evans’s lawsuit, along with a similar one filed last month in Douglas County, will let the courts decide the outcome. Or, depending on how quickly the lawsuits get heard, we could see a new gun bill during the 2015 legislative session.

Alabama Federal Judge Arrested in Atlanta

An Alabama federal judge accused of assaulting his wife at an Atlanta hotel has been charged with battery.

The AJC is reporting that  55-year-old U.S. District Court Judge Mark Fuller was arrested early Sunday morning after a reported altercation at the Ritz Carlton.

The woman was treated for injuries but refused to be taken to a local hospital. Her identity hasn’t been released.

Fuller is a judge in the Middle District of Alabama in Montgomery and presided over the bribery trial of former Alabama Gov. Don Siegelman and HealthSouth CEO Richard Scrushy in 2006.

Five Recommended For Gwinnett State Court Vacancy

The Judicial Nominating Commission has recommended Governor Deal consider five people for a vacant State Court position out here in Gwinnett County. From the Daily Report (registration may be required):

The governor’s office said interviews are planned for part-time Magistrate Shawn Bratton, Deputy Legislative Counsel H. Jeff Lanier Sr., Magistrate Laura Tate, Sugar Hill Chief Municipal Court Judge Margaret Washburn and Senior Assistant County Attorney Tuwanda Williams. They are being considered to replace Judge Randy Rich, whom Deal elevated from state court to the superior court two months ago.

The names may not mean much outside of the legal community or outside of Gwinnett, but there are some good names there to fill this important post.

Paulding Superior Court Switcharoo

Paulding County Superior Court Judge James R. Osborne qualified for re-election last Monday, and then something interesting happened: his daughter, attorney Elizabeth Osborne Williams, qualified late in the morning on Friday (the last day of qualifying) to apparently run against him. At least, that was one possibility. The other possibility was that Judge Osborne was setting her up to pass on the baton on to her, thereby bypassing a crowded election.

Judge Osborne did what was expected, he withdrew from his candidacy yesterday leaving his daughter the only qualified candidate and apparent default winner for the election.

Lawyers tend to line up for open seats on the bench, and I have no doubt that there would have been a number of them vying for that office. Rarely do the lawyers in the court circuit challenge a sitting judge (unless they’re vulnerable) since they would be arguing cases before and after the election, so I can understand it’s not the best option if you want a viable career. Needless to say, those who would’ve run for that seat are understandably upset. Judge Osborne hand-picked his successor rather than letting the election process work.

According to Jim Galloway over at the Political Insider, the Secretary of State’s office is looking at what options are available concerning this matter, and the Judicial Qualifications Commission could be asking a few questions too.

Stone Said Rumors Were Untrue…Turns Out They Aren’t

Senator Jesse Stone has in fact decided to seek a judgeship, after telling folks the opposite earlier this week.  His statement, on Facebook this evening is below the fold.

To be clear, I contacted the Senator personally before making the post earlier this week, to ensure I had an accurate story.  I prefer going to the horse’s mouth before posting.  In this event, it obviously did me no good.

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