Last month the Judicial Nominating Commission started accepting name submissions to fill the vacancy on the DeKalb County Superior Court (formally the Stone Mountain Circuit) caused by Judge Hancock’s resignation. Anyone can submit a name, and apparently, somebody submitted the name of Michael L. Rothenberg, and there is only one person by that name who is a member of the Georgia Bar.

If Rothenberg’s name sounds familiar, it’s because he has a long history with PeachPundit that includes trying to run for an office for which he was not qualified, dropping out of that race, then running again in 2010 and making the runoff before being sued in federal court and by the Securities and Exchange Commission for alleged fraud.

In 2008, Rothenberg ran for Superior Court and Erick questioned his eligibility.

After initially arguing that he was indeed eligible, Rothenberg later ended that campaign. Erick congratulated him on making the right decision and wrote, “I hope in 2010 he will run.”

Rothenberg did indeed run in 2010, and made the runoff against Courtney Johnson, who won the election. Between the general election and the runoff, Rothenberg was accused of running a ponzi scheme in a federal lawsuit seeking the return of $1.35 million “invested” with Rothenberg.

Rothenberg called the lawsuit “nothing more than a political hit job on me.”

He said the lawsuit’s allegations were “absolutely outrageous, slanderous and completely untrue, completely untrue.”

On November 18, 2010 the Daily Report ran a story that Rothenberg implied that his campaign was supported by Congressmen Hank Johnson and John Lewis and State Senator Jason Carter. All three of those elected officials denied having endorsed Rothenberg.

On November 29th, the AJC reported that State Representative Mike Jacobs withdrew his personal endorsement of Rothenberg based on concerns over the private lawsuit. That article also reported that DeKalb County Commissioner Elaine Boyer (R-Smokerise) denied having endorsed Rothenberg, despite her picture appearing on Rothenberg’s mailings under the heading “Endorsed By”.

Liz Carter, the Republican Candidate for the Fourth Congressional District, had the day earlier emailed  a number of DeKalb Republicans stating that she had not approved the printed endorsement that Rothenberg attributed to her and was asking people not to vote for Rothenberg in the runoff.

Both DeKalb Libertarians stood by their endorsement of Rothenberg.

After losing to now-Judge Johnson, the federal Securities and Exchange Commission filed a complaint against Rothenberg, alleging that his “investment” scheme violated the ’33 and ’34 Acts.

[As an aside, let this stand as a lesson to the political opportunists and scalawags who seek to destroy America by robbing Georgians of our God-given right to vote in runoff elections. Absent the runoff election, this might not have all come out and Rothenberg might have been elected. And it would have been your fault when a Superior Court Judge was indicted for fraud.]

According to the SEC complaint and press release:

The Commission’s complaint alleges that between at least February 2010 and March 2010, Rothenberg, through Four Five, used misrepresentations and omissions of material fact to induce investors to participate in a secret and allegedly risk-free trading platform or trading facility. This trading platform or trading facility purportedly involved transactions among international banks that would generate substantial return on a recurring basis. Specifically, Rothenberg represented that the trading platform would produce returns in excess of 300% every fourteen days. Rothenberg and Four Five also represented to investors, both orally and in writing, that the majority of their funds would remain at all times in Rothenberg’s attorney trust account, and that all funds invested, along with the profits, would be returned to the investors at the conclusion of the trades. [Emphasis added]

As a result of a settlement of the SEC charges, Rothenberg’s right to appear or practice before the agency has been suspended. His website also is suspended.

As part of the settlement, the SEC found that:

contrary to Rothenberg’s representations that investor funds would remain in his attorney trust account, Rothenberg began disbursing investor funds within days of receipt of those funds. Between March 2010 and October 2010, at least $210,000 in investor funds were transferred to a bank account designated for contributions to Rothenberg’s judicial election campaign. Rothenberg used another $190,000 of investor funds for personal expenses. Although Rothenberg ultimately returned approximately $910,000 to investors, he misappropriated at least $800,000 of investor funds. [Emphasis added.]

And according to the SEC’s press release:

Defendants were also ordered to pay disgorgement, pre-judgment interest and a civil penalty in amounts to be resolved upon motion of the Commission at a later date, and directed that for purposes of that motion, the allegations of the Commission’s Complaint shall be deemed true. Defendants consented to the entry of the order without admitting or denying the allegations of the Commission’s Complaint.

Is Georgia’s indigent defense system broken? The answer may come after next Thursday, when the case of Maurice Flournoy, et al. v. The State of Georgia, et al. goes to trial in the Superior Court of Fulton County. Flournoy is significant because the case has been brought as a class action lawsuit challenging the effectiveness Georgia’s Public Defender system.

The case combines the claims of over 200 defendants who were convicted at trial. Many of you will stop reading at this point, don’t take your thinking hat off just yet. Many of these defendants hit a brick wall when appealing the convictions–you have to get a new lawyer to argue ineffective assistance of counsel. These aren’t white collar criminals. They are indigent from the start. There is no option of going out and retaining a lawyer for the appeals process. It falls to the Public Defenders to handle the appeals process. And because the “ineffective” lawyer argument requires one to use a different lawyer, the appealing defendant gets handed off to another Public Defender.

Therein lies the problem at the heart of this case. The system is understaffed and underfunded. And by no fault of the Public Defender system. A few years ago, the Georgia legislature created the Georgia Public Defender Standards Council, or GPDSC, to function as an agency to oversee the administration of the various Public Defender offices. But the agency has never been adequately funded and in recent years has faced severe budget cuts. The state has statutorily obligated the GPDSC to aid indigent defendants in this position, yet they refuse to provide the necessary funding. It’s like a giant game of hide the ball; it’s easy to win when you have the ball.

If you are going to create a system, then fund it. Press Release below the fold.

Trial Seeks Permanent Fix to Broken System for
Providing Hundreds of Indigent Persons Lawyers

WHAT: Superior Court Judge Jerry W. Baxter will hold a trial in Maurice Flournoy, et al. v. The State of Georgia, et al., a class-action lawsuit that seeks to secure adequate representation for indigent persons in Georgia who have been convicted of offenses carrying a term of incarceration and who are currently without effective legal representation.

WHEN: Thursday, December 15, 2011 at 9:30 am.

WHERE: Fulton County Superior Court, 185 Central Avenue, SW; Justice Center Tower Suite T-4855/Courtroom 4D; Atlanta, Georgia 30303

WHY: Flournoy was filed in December 2009 on behalf of nearly 200 convicted indigent defendants who did not have lawyers to represent them in their appeals. Many of these individuals could not be represented by their trial lawyer on appeal because they wished to raise claims of ineffective assistance of counsel and, under Georgia law, are entitled to a new lawyer to do so. Severe budget cuts in the past three years have rendered the Georgia Public Defender Standards Council (GPDSC) inadequately staffed and funded to meet its constitutional and statutory obligation to provide effective counsel to indigent defendants in this position.

On February 23, 2010, Judge Baxter certified a class of indigent defendants in Georgia who had been convicted of an offense carrying a term of incarceration and who had requested or would request, yet be denied, conflict-free counsel to represent them in their appeals. The Court also required the State to provide effective and conflict-free representation for appeals to all class members within 30 days of their request for new counsel.

Since the filing of the lawsuit, the class size has grown from nearly 200 to more than 800 indigent defendants, but the resources dedicated to their representation have not kept pace. As a result, the State has created an unacceptable risk that the right of hundreds of indigent defendants across the state to effective and conflict-free counsel will be violated.

In December 2011, lawyers from the Southern Center for Human Rights (SCHR) and Bondurant, Mixson and Elmore, LLP will argue that the State must make critical systemic improvements to ensure that the rights of indigent defendants are adequately protected, including the provision of counsel with sufficient time and resources to provide effective representation.

CONTACT: Kathryn Hamoudah, 404/688-1202 office, 404/819-4233 cell, khamoudah@schr.org

Two of Gwinnett’s Superior Court Judges will retire next year, and the races to replaces them have begun. Earlier this month, Tracey Mason Blasi announced she would seek the position being left behind by Judge Dawson Jackson. Today Chris McClurg announced his intention to seek the same post.

McClurg, 42, served in the United States Army in the 18th Airborne Corps before earning his law degree from Emory Law School. He and his wife Martina have been married for 23 years and have one son, Tyler. The McClurgs live in the Suwanee area.

McClurg is a civil litigator in Lawrenceville with a focus on business and family law. McClurg has appeared in numerous Superior courts in Georgia as well as the Georgia Supreme Court and Court of Appeals.

Chris McClurg plans to campaign for the Superior Court seat being vacated by long-time judge Dawson Jackson by taking his message directly to the voters. “The voters of Gwinnett County deserve a judge who has the legal experience to decide the difficult
cases of divorce, business disputes and felony criminal cases. I have the courtroom experience to serve families and victims of crime in Gwinnett County.”

- Move Allows Governor Deal to name Successor Before Election -

Georgia Supreme Court Justice George Carley announced that he will step down next year during a period of time when he is serving as Chief Justice. The other six justices voted unanimously to allow Carley to serve as Chief Justice for approximately two months with that period to end as the court’s term ends on July 17th.

This also means that the position would be open and that Georgia Governor Nathan Deal could name Carley’s successor. As the Atlanta Journal-Constitution pointed out, there are repercussions that have raised objections. Not surprisingly, there are objections from those who had decided to seek the office in, what they thought would be, an open-seat election.

Two lawyers — Scott Bonder of Atlanta and Tamela “Tammy” Adkins of Lawrenceville — had already announced they would run for what they thought would be an open seat in next year’s elections. A number of other lawyers and judges also had expressed interest.

“I am saddened that Justice Carley has effectively taken this decision out of the hands of the people of Georgia,” said Adkins, who lost in a runoff last year for a seat on the state high court. “It circumvents the voting process in our great state and makes the Supreme Court subject to political party control.”

Bonder, who noted his campaign had already raised more than $86,000, said, “I’m shocked, to say the least.”

Of course, the people will still vote and while an incumbent has an advantage, it is no guarantee of an election victory. For his part, Carley is quoted by the Atlanta Journal-Constitution, as saying

. . . he agonized over whether to step down with five months left to serve. “It suddenly hit me I could retire as chief justice,” he said. “And I want to retire as chief justice. I’m sorry that some people have already spent time getting organized [for the election].”

It should be noted that Carley states in the AJC story that those people are the reason Justice Carley made his announcement so early. Carley could not serve another term because he could not collect his pension if he served past his 75th birthday.

The truth is that voters pay little attention to judicial elections and that those who vote tend to vote overwhelmingly for incumbents, regardless of their judicial and political philosophies (e.g. Leah Ward Sears). The assumption by many of us is that this is because voters know so little about the candidates. I think the next election may be very different.

Attorney General Sam Olens’ office released this statement this morning:

The State of Georgia, together with 25 sister states, the NFIB and two individuals, today filed a Petition for Writ of Certiorari with the Supreme Court of the United States in the multi-state challenge to federal healthcare reform. Attorney General Olens released the following statement:

“We have said all along that this is a case that must ultimately be resolved by the Supreme Court, and that time is finally here,” said Olens. “Federal healthcare reform grossly exceeds the enumerated powers of Congress, and the Court now has the opportunity to restore Constitutional balance to a federal government of limited powers. We are hopeful that the Court will grant cert quickly and strike down the law.”

If you recall, a three-judge panel from the Eleventh Circuit Court of Appeals ruled that the individual mandate — a central piece of ObamaCare — was an unconstitutional use of the Commerce Clause. The Obama Administration has passed up its right to appeal to the full appellate court and have opted to have the case heard by the Supreme Court.

States Certiorari Request to Supreme Court on ObamaCare

As you likely already know, a three-judge panel from the Eleventh Circuit Court of Appeals, which is based here in Atlanta, struck down the requirement on Americans to purchase health insurance, the central part of ObamaCare:

President Barack Obama’s signature healthcare law suffered a setback on Friday when an appeals court ruled that it was unconstitutional to require all Americans to buy insurance or face a penalty.

The U.S. Appeals Court for the 11th Circuit, based in Atlanta, ruled 2 to 1 that Congress exceeded its authority by requiring Americans to buy coverage, but it unanimously reversed a lower court decision that threw out the entire law.
[...]
Twenty-six states together had challenged the mandate, arguing that Congress had exceeded its authority by imposing such a requirement. But the Obama administration had argued it was legal under the Commerce Clause of the U.S. Constitution.

A federal judge in Florida sided with the states and struck down the entire law, leading the administration to appeal.

A divided three-judge panel of the 11th Circuit found that it did not pass muster under that clause or under the power of Congress to tax. The administration has said the penalty for not buying healthcare coverage is akin to a tax.

“This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them repurchase that insurance product every month for their entire lives,” the majority said in its 207-page opinion.

That opinion was jointly written by Judges Joel Dubina, who was appointed to the appeals court by Republican President George H.W. Bush, and by Frank Hull, who was appointed by President Bill Clinton, a Democrat.

Gov. Nathan Deal and Attorney General Sam Olens, who were a party to this case, praised the ruling:

Gov. Nathan Deal and Attorney General Sam Olens praised the federal appeals court ruling that struck down the individual mandate in Obamacare as unconstitutional. In a joint statement, Deal and Olens said Georgia will continue to press its case that the whole law should be declared unconstitutional – an issue the Supreme Court will ultimately have to decide.

“We applaud today’s ruling from the United States Court of Appeals for the 11th Circuit striking down the individual mandate as ‘a wholly novel and potentially unbounded assertion of congressional authority.’ Today’s ruling recognizes the core principles of our federalist system and reminds an over-reaching federal government that the Constitution applies to it, too.

“We do not, however, agree with all findings in the decision. Unlike the 11th Circuit, we believe that the Obama administration should be taken at its word that the individual mandate is crucial to the whole bill, and that the whole bill should be struck down. But this much is certain: Federal healthcare reform is on life support, and this case will be decided by the Supreme Court of the United States. Today is a huge step toward victory, but it is also a day that emphasizes the importance of the work ahead.”

The Obama Administration can ask the full Eleventh Circuit for a review or he can directly appeal to the Supreme Court. Legal scholar Ilya Shapiro calls the decision a win for the Constitution:

By striking down the individual mandate, the Eleventh Circuit has reaffirmed that the Constitution places limits on the federal government’s power. Congress can do a great many things under modern constitutional jurisprudence, but, as the court concludes, “what Congress cannot do under the Commerce Clause is mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die.” Indeed, just because Congress can regulate the health insurance industry does not mean it can also require people to buy that industry’s products.

You can read the opinion of the court below:

The AJC reports today on a lawsuit by the Securities and Exchange Commission against Michael Rothenberg, who ran unsuccessfully for DeKalb Superior Court in 2010.

The SEC complaint appears to originate with the same transaction that birthed a federal lawsuit against Rothenberg just before the December 2011 runoff election.

The SEC alleges that Rothenberg transferred $169,o00 of money from defrauded investors to his campaign account. In November, the Fulton Daily Report noted Rothenberg denying having transferred the funds in questions to his campaign.

But long before the November general election, there were other warning signs.

In 2008, Michael Rothenberg announced his candidacy for another seat on the DeKalb Superior Court. Erick Erickson, writing on Peach Pundit challenged Rothenberg’s eligibility. Rothenberg and his Campaign Manager/attorney responded in the comments with their version of his qualifications.

Two days later, Erick published a lengthy analysis and concluded that Rothenberg did not meet the statutory requirements to hold the office of Superior Court Judge at that time. This would not be the last time Rothenberg had no comment.

Rothenberg ultimately withdrew from that race over his qualifications. Erick wished him the best and said “[we] hope to see him run in two years.” Erick’s wish was fulfilled.

On November 18, 2010 the Daily Report ran a story that Rothenberg implied that his campaign was supported by Congressmen Hank Johnson and John Lewis and State Senator Jason Carter. All three of those elected officials denied having endorsed Rothenberg.

On November 29th, the AJC reported that State Representative Mike Jacobs withdrew his personal endorsement of Rothenberg based on concerns over the private lawsuit. That article also reported that DeKalb County Commissioner Elaine Boyer (R-Smokerise) denied having endorsed Rothenberg, despite her picture appearing on Rothenberg’s mailings under the heading “Endorsed By”.

Liz Carter, the Republican Candidate for the Fourth Congressional District, had the day earlier emailed  a number of DeKalb Republicans stating that she had not approved the printed endorsement that Rothenberg attributed to her and was asking people not to vote for Rothenberg in the runoff.

Both DeKalb Libertarians stood by their endorsement of Rothenberg.

After Courtney Johnson won the runoff election with 61% it wasn’t clear how much of her victory could be attributed to the last news cycles of the election.

But precinct-level returns shed some light.

Mike Jacobs’s district comprises eleven precincts in North DeKalb. During early runoff voting, Rothenberg ran the table here, carrying 66% of the vote and all but two of the eleven precincts. On election day, voters gave Courtney Johnson 56% of the vote, a twenty-three point gain over the weekend, and she carried nine of eleven precincts.

Courtney Johnson won the rest of the county handily, approaching 90% in a number of precincts. But it is instructive to view the sea-change in voter sentiment in reaction to a news story about candidate ethics.

Disclaimers: I was a consultant to Mike Jacobs during this drama. On November 1, 2010, I recevied a payment for robocalls from Michael Rothenberg’s campaign. That expenditure appears never to have been disclosed.

On Wednesday, June 8th, the Georgia chapter of Americans for Prosperity will hold the “Hands Off My Healthcare Rally” beginning at 9am at the Eleventh Circuit Court of Appeals in Atlanta as oral arguments are heard State of Florida v. Department of Health and Human Services; the lawsuit filed by Florida, which has since been joined by 25 other states, against the Obama Administration over the health care law passed last year.

Judge Roger Vinson ruled in a 78-page opinion that ObamaCare is unconstitutional because the individual mandate, the centerpiece of the law, violated the Commerce Clause. The Obama Administration appealed the ruling, which brought it to Atlanta. The next stop will be the Supreme Court.

You can find more details for the event at the AFP Georgia website or on Facebook. In case you’re interested attending the hearing, the Eleventh Circuit has posted relevant information here.

Yesterday, the names of appointees by Gov. Nathan Deal, Lt. Gov. Casey Cagle, Speaker David Ralston and Chief Justice Carol Hunstein to the Criminal Justice Reform Council, which was created by HB 265, were announced. This council is important since it serves as a step forward in thinking by a Republicans, who have often sought to be “tough on crime,” but finally seem to realize that this approach isn’t the most fiscally responsible way of deal with this problem.

Gov. Deal and the legislature deserve credit for putting this idea, which has seen success in Texas, in motion. But in looking over the list of appointees, one name stuck out; and that is Douglas County District Attorney David McDade.

You may remember that name from a few years ago. McDade was among those trying to keep Genarlow Wilson behind bars. For those of you needing a refresher, Wilson, who was 17 at the time, was charged with aggravated child molestation in 2005 after fooling around with a 15 year-old female. He was convicted and sentenced to 10 years in jail and required to register as a sex offender, though many on the jury felt that the punishment did not fit the crime. McDade and others alleged that Wilson also took part in a gang rape of a 17 year-old female, and the jury took this in consideration when sentencing him. But as Grift noted back in 2007, “Polling of the jury and transcripts gave no indication the jury preferred to convict Genarlow Wilson of rape. In fact, they clearly indicated the 17 year old gave consent and struggled with the issue of the 15 year old girl.”

McDade had no problem making copies of the sex tape to give to legislators, which showed questionable judgment on his part – again, considering that Wilson was acquitted of any wrong doing on that particular charge. In fact, then-US Attorney David Nahmias issued a statement noting that McDade violated federal law in distributing copies of the tape:

Douglas County District Attorney David McDade violated federal law when he distributed a videotape from a rape and child molestation case to legislators and journalists, the U.S. attorney’s office said Wednesday.

U.S. Attorney David Nahmias said federal law prohibited distributing the videotape because it depicted minors engaged in sexually explicit conduct and warned that people who had received it would be in violation of federal child pornography laws.
[...]
Nahmias said his office issued the statement to end further distribution of the videotape and advised those who possessed it to destroy or return it.

The Georgia Supreme Court eventually found that the punishment for the crime for which Wilson was convicted was “cruel and unusual,” and ordered him to be released from prison; though he served more than two years behind bars.

McDade may well have learned from the serious mistakes he made in his crusade against Genarlow Wilson. But his appointment to a panel to deal with the serious issue of criminal justice reform, while not enough to dismiss the entirety of the work they’ll undertake, makes me take it much less seriously.

Very rarely do I give merit to the argument “Well everyone else is doing it!” HB 24 is a prime example. Many states have already adopted the Federal Rules of Evidence, so this is not a case of Georgia needing to jump on a bandwagon – this is a case of Georgia needing to furiously run downhill to catch-up with the bandwagon.

The bill, originally offered by Rep. Willard, cleared the House without much opposition. Many believed yesterday that Senator Hamrick would engross the bill. But that did not happen. Senator Cowsert tabled the bill and many believe he is loading it up with amendments to ensure it does not pass.

But this is not the first roadblock evidence reform has hit. The current Georgia rules of evidence has been in place for over a hundred years and is supported by, sometimes conflicting, caselaw. The history of this bill dates back to 1989 and a certain State Senator, and wonderful Governor, named Nathan Deal. Reform was defeated then and several more times over the years. The current version is the result of a “peace agreement” of sorts among several interested parties, particularly District Attorneys and Public Defenders. The legislation DOES have support in the legal community. Among those supporting HB 24 is the State Bar and the Council of Superior Court Judges.

But evidence reform is in fact being held up. Here in the midnight hour. Senator Cowsert waited to the last minute, when there was very little chance to patch things up to pull this move. Did he offer much reasoning? Not really. Here’s a quote from The Daily Report:

“I hear from an awful lot of attorneys who tell me they are comfortable with the rules of evidence the way they are.”

If you are going to hold up a major and needed reform like this, I humbly expect you to have better reasoning Senator Cowsert.

If you want to learn more about the changes, here is a wonderful report compiled by a Georgia State Law Professor.

You may remember Judge Camp, the federal judge who got in some trouble with Kiki the Stripper, did some drugs, gave some guns to drug dealers, and got caught.

After his arrest, Judge Camp revealed he had been misdiagnosed and had for many years been bipolar. Mental disorders, strippers, drugs, booze, gambling, fire arms – this is either a poorly written episode of “Murder She Wrote” or a fantastic episode of “Matlock.”

Now that dust has settled, some people are calling into question the cases that Judge Camp presided over. Specifically, some parties who received adverse rulings are beginning to question whether Camp was fit to preside. And there is a possibility that Judge Camp did make a mistake. But only a possibility. There are parts of the State where one may find erroneous rulings by Judges – but this is a federal judge. There are very specific requirements that make a case worthy of being heard in federal court, and federal court is an entirely different beast than any of Georgia’s state courts. The cases are generally more “high stakes” and as such lawyers often search the record for any plain error by a judge. That’s not to suggest that lawyers or judges who operate in Georgia’s Municipal, State, Probate, Magistrate, and Superior Courts are inferior in anyway. Moreover, many of Georgia’s judges face the public in an election at least once – their federal counterparts do not have to answer to public opinion in the same manner. Most Georgians likely can not even name one of their federal judges – but I bet most know the first name of some judge in their county. For the most part, Georgia’s judges are qualified and fair individuals – and most of the lawyers that appear before them are certainly qualified and decent folk as well. Federal judges and lawyers are just more meticulous and have different rules they must abide by. And because of the decreased volume of cases at the trial level, more attention is paid to potential errors for appeals.

The real question here is whether Judge Camp’s purported racial bias influenced his sentencing of African-American defendants. And that is a question that will be litigated extensively in an attempt to reduce sentences of certain defendants. Chances are the drugs and bipolar disorder would not have caused Camp to do anything too wacky on the bench; if they had someone would have appealed before news broke that he had the disorder anyway.

I think someone should review the Judges rulings and sentences – while understanding that the possibility of him being impaired is small, I think justice demands we ensure none of these defendants were slighted by the “Funky Judge.”

Chief Justice Carol Hunstein of the Georgia Supreme Court delivered the State of the Judiciary last Wednesday.

There have been various and sundry reports regarding the Chief Justice’s remarks, however, most have focused on comments regarding the need to reform our tough criminal sentences. Pragmatically, the argument is very sound.

We are clogging the system down with trials for minor offenses while we allow larger issues to linger. The situation is currently problematic, but will worsen as time wanes on and crimes continue to be committed. At some point there will be a trade-off in which we sacrifice enforcing the law because we lack resources to do so.

But we aren’t at that point yet. Moreover, the subject has been covered ad nauseam at this point. Chief Justice Hunstein, however, had more than one point. Even if those thoughts have, for the most part, been lost in the media’s reporting. Of particular interest are specialized courts.

“What’s a specialized Court?” is what my Granny would ask and the concept might be somewhat vague to you as well. The common understanding of our Court system is the basic division between civil and criminal – and such an understanding is complicated when you break them down into Probate, Magistrate, Superior and State. Then there are Courts of Appeals and the Supreme Court. Add in things like the “non-complex” calender that local Courts may have, such as in Atlanta, and you have something that is confusing to most Georgians.

The specalized system takes the complexity a step farther. Chief Justcie Hunstein mentioned three types very specifically in her address:

Drug Courts – as the name implies these Courts deal specifically with non-violent drug cases. These are not cases where someone is flying in a kilo of Columbian Cocaine, but rather cases of simple possession. The defendants are generally addicts that need rehab at the very least.

Veterans Courts – These Courts deal specifically with issues and cases regarding Veterans. People who have risked life and limb to defend this Country. As you can imagine this creates unique circumstances that a typical jury of peers might not fully appreciate or understand.

Business Court – This Court deals with complex litigation over business matters with experienced Judges who have a firm understanding of the high risks involved in this sort of litigation. Contract disputes and breach of fiduciary duty claims by Executives. The sort of trial that makes most jurors go to sleep in the blink of an eye.

Now each of these specialized court systems was touted by the Chief Justice and understandably so. Their existence has increased efficiency in handling these types of cases and decreased the overall workload on our time and cash strapped judicial system. And while these Courts have performed admirably, I have my reservations about expanding into other areas of law.

At some point we have to hold the brakes. For instance, dealing with cases involving people who speak a language other than English would be easier if you had an all-Hispanic Court. But do you pair that down to Criminal and Civil? Do you add in juvenile? Seems like that will become problematic and create questions over whether justice is being fully rendered in some Courts.

Another potentially harmful outcome and a back-door method of tort reform, would be to create Courts specifically for personal injury cases. At what point do we stop specializing? Nearly every type of lawsuit could be placed into one category or another. The idea is a good one – to some extent; but we have to have our limits.

As I said back on May 26 concerning DeKalb State Court Judge B.J. Mobley, “many of Georgia’s jurists think they are invincible…until they are caught in the midst of their impropriety.” Mobley, who was previously criticized for lavishly spending tens of thousands of taxpayer dollars annually on her travel and cell phone bills, accused of running her re-election campaign out of her own taxpayer funded office, and who had the longest delays in handling pending cases of any of her peers, has announced she will be resigning effective this Friday, according to two tipsters writing into the Tip Line.

Mobley, through a sheer coincidence that I’m sure has absolutely nothing to do with her decision, is under investigation by the Georgia Bureau of Investigation that she had an investigator from the DeKalb Solicitor’s Office run tags through the state’s criminal information system.

Judge Barbara Mobley’s last day will be Friday, her attorney Jackie Patterson told The Atlanta Journal-Constitution. Patterson declined to talk about why Mobley was stepping down, but confirmed that she had reached an agreement with the state’s Judicial Qualifications Commission.

Which will end the JQC’s investigation. Because that is how they roll. The GBI, on the other hand, should not halt their investigation of B.J. Mobley. Because who, exactly, were these alleged background checks being run on? Elected officials? Her enemies? Normal citizens? You? It matters.

The following is my column from today’s Dublin Courier Herald:

Only days after receiving his appointment as Chairman of the Committee on Banking, Senator Jack Murphy (R-Cumming) is being sued by federal regulators for “Breach of Fiduciary Duty” and “Gross Negligence” from his service as a director of the now failed Integrity Bank.  The FDIC is seeking $70 Million in damages from Murphy and 7 other directors and bank insiders.

Murphy’s reaction has been to classify this as a civil action, which is technically correct, and says it has no bearing on his ability to chair the committee which sets Georgia banking laws.  Georgia currently leads the US in the number of bank failures since 2008.

Two members of the Senate’s Committee On Assignments, Jeff Mullis (R-Chickamauga) and Cecil Station (R-Macon), have indicated they back Murphy remaining, though Senate President Pro Tem Tommie Williams (R-Lyons) did acknowledge that the COA will meet today to discuss the situation.

Senators need to ask themselves this question: Can a Senator who would not be allowed by the FDIC to serve as a banking officer or director be allowed to chair the committee who writes Georgia banking laws?

I spent 7 years as a banker as a branch manager and small business lender after I graduated college, and remember filling out compliance forms regarding the status of our officers and directors.  I traded messages with some of my contacts at a large Atlanta law firm that previously served as our outside counsel yesterday to confirm today’s officer requirements are similar.  I found that a person who has caused a loss to the FDIC is, by rule, not qualified to serve as a director or officer of a bank seeking a new charter.  In addition, the FDIC does not look favorably upon such individuals serving in this capacity at established banks, and would usually note such during routine compliance audits.

Any prospective purchaser of assets from a failed bank by the FDIC are furthermore disqualified if they have “ever been an officer or a director of a failed institution” and “alleged in a judicial or administrative action brought by the FDIC” to have breached their fiduciary duty to that institution.

As someone who also has had to work though financial and legal issues related to the collapse of the housing market, I can and do sympathize with the issues Senator Murphy is facing.  Unfortunately, that does not extend to finding a justification to see Murphy continuing as Chairman over a committee that draws banking laws for institutions he is no longer qualified to work for.

Senator Murphy should cede his chairmanship, and if he does not do so, the Committee On Assignments should make a change today.

As we mentioned last week, W. Travis Sakrison will replace former state Rep. Rob Teilhet as executive director of the Georgia Public Defender Standards Council. Sakrison is a deputy chief DeKalb DA who oversees the drug-trafficking task force and asset forfeiture units and has been a prosecutor for more than nine years.

And this, a career prosecutor, is who Nathan Deal wants to run the Georgia Public Defender Standards Council?

Take note of this: O.C.G.A. § 17-12-20 (a) lays out the standards for a circuit public defender supervisory panel. Which career field is specifically prohibited from participation in selection of circuit public defenders? As the law reads, “A prosecuting attorney as defined in paragraph (6) of Code Section 19-13-51, any employee of a prosecuting attorney’s office, or an employee of the Prosecuting Attorneys’ Council of the State of Georgia shall not serve as a member of the circuit public defender supervisory panel after July 1, 2005.”

Emphasis mine. But it makes the point clearly that prosecutors cannot be part of the selection process of circuit public defenders but a career prosecutor makes a perfect fit for running a state-wide system of public defenders? Simply because he “resigns” from his current position that makes everything all right? This is the best choice to, per the GPDSC mission statement, ensure indigent defendants receive “zealous, adequate, effective, timely, and ethical legal representation” as demanded in O.C.G.A. § 17-12-1 (c)?

The fox is indeed guarding the hen house.

No numbers, but on the eve of the General Election Runoff it appears David Nahmias leads the Supreme Court race and Chris McFadden leads the race for Court of Appeals.

(11/29/10) An InsiderAdvantage/WSB-TV survey conducted last week showed incumbent David Nahmias with an overwhelming lead over his opponent, Tammy Lynn Adkins, in Tuesday’s runoff for the state Supreme Court while Court of Appeals candidate Chris McFadden appears to hold a substantial lead over his opponent, Antoinette “Toni” Davis, in another runoff.

As you know, each county has it’s own front page poster except for Hall.   That’s  just how we roll around here, and I’m the Cobb County guy, when I’m not the Fayette County guy.  Or the Fulton County guy.   Or,…

Anyway, I voted early last week as I’m out of town this week.   Voted for Nahmias for Supreme Court, and McFadden for Court of Appeals.   I’ll have to admit that there was one race I skipped on the general ballot as I didn’t know anything about the candidates, and didn’t start asking in time to get an informed answer.

The Cobb Young Republicans were able to direct me to the campaign manager for Jason Fincher for State Court Judge.   I’ve since learned he’s a lifelong Cobb resident, Kennesaw State graduate, has about a decade of experience with the Cobb County solicitor’s office, and has been endorsed by Sheriff Neil Warren and retired Sheriff Bill Hutson.

I like the profile of having support from both the sheriff’s office and the solicitor’s background.  More importantly, I was asked to vote for him.  I’m not even sure who he is running against.  They didn’t ask.  Fincher’s folks did.  

Basic campaign rules win.  I voted for Fincher on Wednesday.

The Political Insider points us to this radio ad being run by ‘Georgia Women Vote.’ The ad asks women to go to the polls tomorrow and support women candidates. Specifically Toni Davis for Court of Appeals, and Tammy Lynn Adkins for Supreme Court.

Personally, I’ll be voting for Nahmias and McFadden but not because they’re men. I feel they’re the best candidates for Supreme Court and Court of Appeals respectively.

Supreme Court Justice David Nahmias is receiving support from all corners of the state’s political spectrum.  The AJC is reporting four significant endorsements today:  Governor-elect Nathan Deal and Attorney General-elect Sam Olens from the Republican camp, and Former Mayor Shirley Franklin and Democratic nominee for Attorney General Ken Hodges.

Nahmias’ race verses Tammy Adkins will head the statewide ballot for the November 30th runoff.

If you ever really want to learn about a locality – it’s politics and it’s people – you really need to get to know a Chief Magistrate Judge. Fayette County lost Judge Charles “Chuck” Floyd this week, who was in his third term. From the Fayette Daily News:

Floyd died Wednesday morning and details of his death are unavailable at this time, a court official said, however he had been battling illness.

Floyd made history in 2002, when he became the first African-American appointed to the magistrate bench in Fayette by then Chief Superior Court Judge Benjamin Miller. Floyd was later re-elected to his post in 2004 and 2008. His current term was scheduled to expire in 2011.

“He has served this office and community faithfully and with integrity,” magistrate court staff offered in a statement Wednesday morning. “Chuck will be greatly missed.”

I didn’t get to know Judge Floyd nearly as well as I knew his predecessor, but he was a man who took over the Magistrate Court during a somewhat troubled time. A virtually unknown man to the locals, he quickly worked his way into the fabric of the community and easily won re-election twice. The times I did meet him, he was positive and upbeat, with a great outlook on the future of the Fayette Community. Our prayers are with his friends and family.