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

UGA Law School starts a “Semester in Washington” program this spring. Fifteen lucky students will live, work, study and work even more in the World’s Largest Shark Tank loveliest city on the Potomac, all for course credit.

“The Washington, D.C., Semester in Practice program is an exciting new opportunity for our students to have a full time clinical experience while in law school,” said Georgia Law Dean Rebecca Hanner White. “Importantly, they will gain that clinical experience in our nation’s capitol, providing our students with a distinctive legal experience they could gain nowhere else.”

Participants in the program will have the opportunity to live in housing maintained by UGA in the Washington, D.C., area while working 35 hours per week at legal positions with federal-level governmental agencies and the D.C. headquarters of major national organizations, among other placements.

In addition to their externship hours, students will complete a non-clinical course taught by a professor from a Washington, D.C., law school and a clinic seminar class, earning a total of 13 credits for the semester.

In D.C., the program will be run by Jessica Heywood, a 1997 graduate of Georgia Law. She currently serves as Director of Employer Relations for The Catholic University of America Columbus School of Law.

The head consultant to the political campaign attempting to pass the metro Atlanta T-Splost election has resigned.

If passed by metro Atlanta voters in 2012, the T-Splost would raise an estimated $7.2 Billion over ten years for transportation…one penny at a time.

Maria Saporta of the Atlanta Business Chronicle reports that DC-based consultant, Glenn Totten, resigned because he was concerned about not having enough time to devote to the project if the legislature moves the referendum from the August to November ballot.

However, the AJC reports that some observers have questioned the likelihood of this.

It’s more than a year away until the vote, so this is just insider baseball at this point. And it’s not very relevant to the passage or failure of the T-Splost.

It does, however, indicate some significant unsettled issues at this point.

David McDade, Douglas Country DA, is a busy man these days. He was recently elected as president of the Georgia District Attorneys Association and this spring Gov. Nathan Deal appointed of him to a state panel reviewing ways to reform on criminal justice. Add the day job, where he is one of Georgia’s longest serving District Attorneys, and you’ve got a full plate. It couldn’t happen to a more deserving guy.

Read more here.

As a result of a lawsuit filed by the Institute for Justice on behalf of five city residents, the Atlanta Police Department has finally agreed to comply with state law by tracking and disclosing cash and assets seized in suspected criminal activity:

Faced with a lawsuit, the Atlanta Police agreed Tuesday to start following state law and document how it spends the hundreds of thousands of dollars it receives annually in cash seized from suspects in criminal investigations.

The Washington-based public-interest law firm, Institute for Justice, filed the lawsuit earlier this year in Superior Court after the group’s research found no police department in metro Atlanta documented its use of seized cash and other assets as state law required. The only major Georgia police department following the law was Savannah, said Anthony Sanders, a lawyer with the libertarian group.

Sanders, who represented five Fulton County residents who opposed the practice, contended the cash operated as a “slush fund” of unaccounted money. The Institute determined one sheriff in South Georgia purchased a Dodge Viper with seized cash, which ostensibly was used in a drug-education program.
[...]
Superior Court Judge T. Jackson Bedford signed a consent decree Tuesday in which the Fulton County Police Department and Sheriff Office agreed to start documenting the asset seizures. The City of Atlanta, which produced documents showing seizures and expenditures, will enter into a similar decree within a month, its lawyer said.

“The bottom line is you got their attention and they’re going to start accounting,” Bedford told the Institute.

The APD documents showed reams of line items of jewelry, cars, electronics but mostly of cash seized during raids and arrests.

The documents said the department spent between $258,000 and $567,000 a year of seized cash, much of it on consultants, travel and supplies, including “consumable” ones, but were not more specific.

The Fulton County Sheriffs Department and Fulton County Police Department, which are also part of the lawsuit, still haven’t complied with state law.

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.

. . time has come to file some lawsuits. Senator Chip Rogers, watch your back. We previously posted about an obscure State Law that prevented the Senator from being sued while the Legislature was in session. The WSB is reporting that Bank Attorney’s are ready to proceed.

Hamilton County Bank attorneys told Channel 2′s Richard Elliot they will file the suit in Gordon County Superior Court early Friday morning.

The suit alleges Senate Majority Leader Sen. Chip Rogers, R-Woodstock, and U.S. Rep. Tom Graves, R-9th District, used the loan to buy and renovate the Oglethorpe Inn.

…

Hamilton County Bank attorneys said they were unable to file the lawsuit until now because Georgia law prevents civil suits against legislators from proceeding while the General Assembly is in session and three weeks afterwards.

But a problem may still prevent this suit from going much further. That problem is called reapportionment.

What nonsense are you talking about this time, Ron? The statute that prevented this lawsuit from being filed earlier has a provision that extends such immunity to extended sessions. You know, the sort of session the legislature will call to deal with the apportionment issue? I can’t read crystal balls, but I submit to you that this mess will drag on for quite awhile.

For reference, here’s that statute so you can form your own conclusions.

O.C.G.A. 17-8-26 says in part,

(a) A member of the General Assembly who is a party to or the attorney for a party to a case which is pending in any trial or appellate court or before any administrative agency of this state shall be granted a continuance and stay of the case. The continuance and stay shall apply to all aspects of the case, including, but not limited to, the filing and serving of an answer to a complaint, the making of any discovery or motion, or of any response to any subpoena, discovery, or motion, and appearance at any hearing, pretrial appearance, arraignment, plea or motion calendar, trial, or argument. Unless a shorter length of time is requested by the member, the continuance and stay shall last the length of any regular or extraordinary session of the General Assembly and during the first three weeks following any recess or adjournment, including an adjournment sine die of any regular or extraordinary session.

Nothing in this post should be construed as giving legal advice. If you want legal advice, please contact a certified lawyer.

The King & Spalding – US House of Representatives – Defense of Marriage Act retreat and/or debacle continues to unravel. In case you’ve missed the show, catch up at Powerline.

In February, Barack Obama’s Department of Justice announced that it would not carry out its constitutional and statutory duty of defending the Defense of Marriage Act in federal court.

[...] the House of Representatives retained former Solicitor General Paul Clement, a partner in King & Spalding, to represent it in upholding the constitutionality of DOMA.

After only a week, King & Spalding backed out on their client. Clement resigned, recognizing the precedent his now former firm was setting.

In his resignation letter, Mr. Clement pointedly quoted U.S. Attorney General and former partner Griffin Bell who said, in his law school 2002 commencement address to his alma mater, Mercer University, “You are not required to take every matter that is presented to you, but having assumed a representation, it becomes your duty to finish the representation. Sometimes you will make a bad bargain, but as professionals, you are still obligated to carry out that representation.”

Intense pressure by activists on the firm and its major clients (most notably Atlanta’s own Coca-Cola) prompted the firm’s withdrawal.

According to TPMDC, the Left may not have scored a scalp after all, at least not directly. Brian Beutler reports that the law firm’s corporate clients objected to the decision to represent the defense, including the Atlanta firm’s most high-profile customer, Coca-Cola [...]

Remember a few years ago, when King & Spalding received bad press that they were representing captured terrorists in Gitmo? They didn’t blink, or back down. As seasoned lawyers, real professionals, you wouldn’t expect them to budge on defending their clients, regardless of their unsavory character or the heinous charges they faced. After all, didn’t John Adams himself defend British Army Captain Thomas Preston, and later his eight soldiers, in the Boston Massacre trials? So what changed? The issue, that’s what.

[...] the rules are entirely different when the principle at issue is a pet position of the left.

As we saw in the vicious fighting over California’s Prop 8 in 2008, the opponents to traditional marriage are focused, organized and relentless. Stay tuned…

(Title quote by Ed Morrissey/HotAir)

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.”

Rep Mark Hatfield, primary author of the bill to make President (Yes, really, he’s our duly elected President) Barack Obama prove once and for all again that he ain’t no Kenyan, is attempting to add his bill which requires presidential candidates submit an “original long form birth certificate” (a creation of birthers for which there is no legal standard or definition) to a bill in the House Rules Committee as we speak.  The bill he’s seeking to attach it to is one which would allow the Secretary of State to set the dates of Presidential Preference Primaries.

Expect the preference of the Rules Committee to reflect the sentiments of the majority of the House.  The bill has become an embarassment and is going nowhere.  This isn’t Sunday Sales, and this bill doesn’t have nine lives.  It is dead.

UPDATED:  Rep Tom Weldon made the amendment request, not Hatfield, as Hatfield is not a member of Rules, and was thus unable to offer the amendment to committee.  Chairman Meadows ruled the amendment out of order, and refused to attach it to the bill under consideration.  Dead. D.E.A.D. dead.

The AJC’s Aaron Sheinin has just tweeted (UPDATED: Full Story Now Here; Bill has been tabled) that SB 209, a bill originally introduced to make abortion illegal after 20 weeks because of fetal pain but substituted yesterday to close Georgia abortion clinics, will be tabled by the Rules Committee.

If tabled, it is unlikely SB 209 will pass as a stand alone bill this year, as it will not have time to complete the Committee process and make it to the floor of the full Senate by Wednesday’s “crossover day”. 

Any effort to pass either a fetal pain bill, or a measure to close Georgia’s abortion clinics in favor of hospital-only procedures, will now likely have to be the result of attaching these items to other legislation on the floor of the House of Senate through the amendment process.

SB 210, a bill to allow civil lawsuits for wrongful death in some circumstances related to abortions, passed the Rules Committee yesterday, but still must be voted to the full Senate on Monday.  At this point, it is the most likely vehicle for any floor amendments, depending on the “rule” it receives coming out of committee.

Nothing can stir political controversy like a good old fashioned battle over abortion.  Unless, that is, you’re the committee assigned jurisdiction to hold hearings on the matter.  Today, Senate leadership tapped freshman Charlie Bethel (R-Dalton) to become an ex-officio member of the Rules Committee so they could approve SB 210 with a quorum present. (Please don’t call him a “Hawk”.  That was a term used in Glenn Richardson’s House, when the Senate quietly disapproved of the practice.  And besides, a hawk is a bird of prey, and today’s hearing was about being pro-life.)

The fact that Rules was even hearing SB 210 is a bit of a surprise.  After all, 210 is clearly a tort bill, allowing suits for wrongful death depending on circumstances surrounding an abortion.  Yet only one permanent member of the Rules Committee is an attorney (Bill Hamrick, not present).

In the recent unpleasantness that was the battle over Senate control, Casey Cagle was left with the sole authority to direct legislation to committee of jurisdiction, and little else.  A bit low in his political capital these days, Cagle directed SB 210 and SB 209 to the Rules Committee with solid pro-life Chairman Don Balfour, who also couldn’t hurt by brushing up his social conservative bonafides.   SB 210 sailed through without too much difficulty after some testimony.

SB 209, however, became a pure bait and switch on behalf of its sponsor, Barry Loudermilk.  Many states this year are attempting to pass pro-life legislation to prohibit abortion after 20 weeks of pregnancy, when a baby is estimated to have the ability to feel pain.  Thus, those in attendance for the hearing were prepared to give testimony for or against the “fetal pain” bill.  Yet at the beginning of the session, Loudermilk instead passed out a substitute bill, taking virtually all in the room off guard.

The new SB 209 restricts abortions in Georgia to hospitals only, effectively closing all Georgia abortion clinics.  It also restricts any insurance plan created by the pending Georgia Insurance Exchange from covering abortion except in the case of physical health of the mother.

Given that it is essentially a new bill rather than what was expected, Balfour held over the hearing until 10am Friday to give everyone a chance to absorb the changes prior to a vote.

Normally, bills that pass Rules head straight to the floor for a full Senate vote.  However, because Rules is the Committee of Jurisdiction, these bills must survive another Committee vote (assuming SB 209 passes tomorrow) before moving to the floor.  The second vote would be to apply the rule under which they will be voted on, and is essentially approval for the full Senate to vote.

And, if you notice a sense of urgency surrounding this somewhat unconventional approach to advancing legislation, consider this.  Crossover day – the day a bill must pass the House or Senate to be considered by the other body this year – is scheduled for Wednesday.  Thus, informally, anything that will be considered by Rules for a floor vote must be approved by the committee of jurisdiction by tomorrow.  This will allow Senators to review over the weekend – or not – before the Rules Committee holds its final scheduled meeting before crossover day Monday afternoon.

In Summary, you’ve have this:  The Georgia Senate has honored Widespread Panic and Drivin’ & Cryin.  In between, they argued for weeks over legalizing Sunday Sales of alcohol without ever taking a vote.  Now, with literally days left, they’re going to try to advance the biggest change in Georgia’s pro-life laws in over a decade.  And their starting move is a bait and switch.

It’s a serious topic.  Regardless where you stand on this issue, Georgia deserves a Senate that will treat it seriously.  Even normal Balfour critics have praised his actions today.  Let’s hope a few more members of his committee are in their seats tomorrow at 10am so that the next freshman walking slowly down the hall doesn’t have to do the heavy lifting again.

Conventional wisdom on the decades long tri-state water wars has been that Georgia would not fare well in the court system, and needed to negotiate a settlement with neighbors Alabama and Florida.  Today, during arguments in front of a three judge panel, Georgia seemed to find a sympathetic ear.  From the Associated Press via the Gwinnett Daily Post:

Judge Stanley Marcus seemed partly sympathetic to the argument, later saying he believed Magnuson (the original trial Judge) failed to weigh the difficulties his order would case. If Magnuson’s deadline were overturned, it would ease the political pressure on Georgia to cut a deal.

…

Judge R. Lanier Anderson challenged (Alabama’s attorney) Lembke, noting that the original legislation authorizing the dam contemplated the project would assure Atlanta of a supply of water. Anderson said early documents from the Army Corps contemplated that there may be a need to release more water from the dam into the Chattahoochee River to accommodate anticipated growth in Atlanta.

“The legislation is absolutely clear,” he said.

Anderson later told a lawyer for the U.S. Army Corps of Engineers that he thought the case should be sent back to the agency so it could review the availability of water with guidance from the court saying that water supply was part of Congress’ intent for the project.

“We’re probably going to remand this case,” Anderson told a lawyer representing Florida.

The judges did not indicate when they would rule.

So, about all that rain falling today, filling up Lake Lanier?  Sounds like it might be ours after all.

PS.  You’re next, Tennessee

Today’s Courier Herald Column:

Tomorrow, Former Speaker of the US House Newt Gingrich will pay a courtesy call to Governor Nathan Deal, under the auspices of a discussion to further “States’ Rights” under the 10^th Amendment.  The last amendment in the Bill of Rights, it states that powers not expressly given to the Federal Government are reserved to the States, or to the people.

While a vital cornerstone of federalism, the 10^th Amendment has also become a rallying cry, and almost a code word, for many who wish to selectively invoke the Constitution as a matter of convenience when they disagree with the Federal Government from a hard-line conservative ideology. 

The use of the 10^th amendment in the post-Reagan conservative movement gained some traction on claiming abortion was a state issue, and the movement seemed to gain broader notice when the Bush Administration pushed for a federal standard for state issued driver’s licenses, known as the Real ID bill.

The Tenth Amendment Center and those perpetually paranoid of all things federal managed to take their argument mainstream and successfully push a bill in 2007 – SB 5 – to delay Georgia’s implementation of Real ID.  Georgia and its 49 sister states, after all, had the sole right to authenticate identification for their respective citizens.

I say had, as past tense, because yesterday, 94 members of the Georgia House of Representatives decided to dive head first into Birtherism – the belief that President Obama is not a natural born US Citizen – by mandating a standard form of identification from another state.  HB 401 is a bill requiring anyone running for President on Georgia’s ballot to produce a “first original long form birth certificate”, and then continues to specify what information said form must include.  If such certificate (for which there is no legal definition nor nationally consistent form – long or otherwise) does not exist, then the bill lists a variety of other documents such as birth records, adoption records, adoption records, and passport records, among others that would prove Presidential eligibility.  Again, these documents must be original, and certified copies are not eligible.

So we now have the same folks who argued states’ rights against a national ID standard just 4 years ago demanding another state accept our creation of a “long form” birth certificate, and the document must be an original, even if said state has never produced something called a “first original long form birth certificate”? 

If Georgia wants to pass a law stating we get to accept or reject national candidates for office, including a sitting President, based on our interpretation of whether or not Hawaii or any other state can be trusted with its own state’s rights, then we had better be prepared for the consequences.   There could easily be a day in the near future that California, New York, or other less conservative bastions decide to join in the same game, and selectively exclude candidates based on unacceptable qualifying paperwork.

It’s hard to deny that this bill is political, as all but one of the sponsors are Republican, and it is clearly aimed at attempting to either embarrass, ridicule, or otherwise denigrate the presumptive nominee of the Democratic Party.  A man who, like it or not, is also the duly elected President of the United States.

The Republican Party was once the party of ideas.  Moves like this make Republicans look like the party of petty politics.  The Constitution is an amazing document.  Trivializing it selectively for short term political gain undermines the very tenants the document was written to represent. 

Georgia deserves better.  As does Hawaii.  That’s what states’ rights are all about, after all.

If you are the attorney for the County Bank of Bartow, then you have just ran into an obscure state law that protects members of the legislature. Said Bank is out to get Senator Chip Rogers and Congressman Tom Graves on an outstanding loan connected to a North Georgia motel. The pleadings thus far have alleged that Rogers and Graves took out a business loan with the bank for the motel and are presently in default on that loan. The Bank is seeking 2.2 million dollars that is alleged to be owed on the loan. Whether or not there is any merit to this case is a matter to be decided by the Courts.

However, such a determination might take awhile. As the AJC reported earlier, the case has been “put on hold” until session is over:

An attorney for the Bartow County Bank said Rogers has invoked a provision of state law that allows for lawsuits to be put on hold during a state legislative session.

“The case will not proceed while the General Assembly is in session, but my motion for summary judgment is ready to be filed as soon as the stay expires,” Edward Hine, an attorney for the bank, wrote in an e-mail Monday.

That horrible Senator Rogers. Just wait a minute before you prepare the rail to ride him out of town, because there may be more to this than meets the eye. The law the Bank’s attorney referenced, as far as I can tell, is O.C.G.A. 17-8-26. Do note that the Bank’s attorney said this law “allows” for the case to be continued. The law may not agree with such an interpretation.

O.C.G.A. 17-8-26 says in part,

(a) A member of the General Assembly who is a party to or the attorney for a party to a case which is pending in any trial or appellate court or before any administrative agency of this state shall be granted a continuance and stay of the case. The continuance and stay shall apply to all aspects of the case, including, but not limited to, the filing and serving of an answer to a complaint, the making of any discovery or motion, or of any response to any subpoena, discovery, or motion, and appearance at any hearing, pretrial appearance, arraignment, plea or motion calendar, trial, or argument.

There is a world of difference between “shall” and “may” and the law clearly says “shall.” This isn’t a case of Senator Rogers trying to duck and prolong the case, but rather the Court properly applying the law. 17-8-26 (a) goes on to say:

Unless a shorter length of time is requested by the member, the continuance and stay shall last the length of any regular or extraordinary session of the General Assembly and during the first three weeks following any recess or adjournment, including an adjournment sine die of any regular or extraordinary session.

In summation, this case may see the light of day after reapportionment is over and done with. Suing a legislator is hard to do, go figure. But still, Senator Rogers isn’t invoking some arcane and obscure state law that creates a special exception for only him.

Moreover, nothing in this posting should be interpreted as giving legal advice. If anyone wants legal advice at any juncture for any purpose, consult a lawyer.

Today’s “fresh political pickins from the Peach State”:

1.) Coming off a bitter campaign, Governor Deal and former Governor Barnes have forged an unlikely alliance over a good cause: ensuring that spouses of state employees killed in the line of duty are able to continue health coverage under the state’s plan. To quote Barnes: “It’s the least we can do, really”.

I didn’t vote for Governor Barnes and I don’t regret that decision. But it’s good to see this kind of unity from Speaker, Governor and former Goveror when it comes to something like this, which is doing the right thing.  It also more than makes up for these shenanigans last week by Barnes. “What a crock”.

2.) HB 92, sponsored by Rep. Mark Hamilton, R-Cumming, would reduce the early voting period from 45 to 21 days. Read the full article here. Personally, I think this is very necessary. I’d even support cutting it down to 14 or 7 days, but 21 is a good number. Cost-wise, it guts rural counties to have this long of an early voting period:

An ACCG survey found that counties with less than 10,000 registered voters spent an average $78.31 per early vote in the 2010 primary election, and $11.79 in the general election, compared with $10.76 and $3.63 for counties with more than 100,000 registered voters.

Plus, ya’ll know us rural folks have had problems with voter fraud in the past. A long period of early voting allows more ballots to be mailed out to cemetaries everywhere.

3.) Attorney General Olens, Congressman Westmoreland and Governor Deal held a press conference yesterday in response to the ruling in Florida on the healthcare law.

4.) HB 100, introduced by Rep. Allen Peake of Macon, creates a new court in Georgia to exclusively deal with problems regarding the Department of Revenue.

5.) There are two bills in the House looking to place more scrutiny on projects that “rely on transferring water from one river basin to another”. This idea is currently being worked on by Rep. Tom McCall and Rep. Alan Powell.

6.) In other positive news (not), a new report says that Georgia is 7th among states in total illegal immigrant population.

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.

Forgive me for defending the Governor twice in a little over a week.  I’ve been getting quite a few emails over a post from Jim Galloway, which itself was a clip from the Associated Press.   Based on the emails I’m receiving, it appears to imply the Governor is helping his daughter shield assets from creditors via bankruptcy court.  The offending paragraphs are thus:

Habersham County records show Carrie Deal Wilder and her husband Clint Wilder had lived on the nearly 16-acre Habersham County property. The couple declared bankruptcy last year, leaving Nathan Deal and his wife, Sandra, on the hook for some $2.3 million in loans.

County property records show Carrie Deal transferred the property to her father for $10 on Dec. 31.

For the second time today, I will remind readers that I unfortunately have some experience with not only land transactions, but also bankruptcy proceedings. 

Let’s start with the $10, which many are interpreting as some sort of sales price.  My vague recollection of Georgia Real Estate law is that for a transaction of real property, “consideration” must be given.  Thus, most pre-printed deed transfer forms will include a line similar to “For love and affection, and in consideration of $10…”.  Thus, the $10, has nothing to do with a sale price, it is merely monetary evidence of “consideration”.  Funny thing about this quirky requirement is, the “consideration” doesn’t even have to be actually paid.  It just needs to be referenced.

There are no facts in this story to determine what actually transpired related to this transaction, but given the documented circumstances surrounding it, we can determine several facts not presented.

1) Because Mrs. Wilder is in bankruptcy, this transfer was done under the supervision of a bankruptcy judge.  Bankruptcy courts are federal in jurisdiction, and thus, Deal’s standing as Governor-elect should not have had any bearing on this case.

2) All creditors who are owed money from Mrs. Wilder would have to be aware of this transfer, and would have the opportunity to object if they so desired.  If they did, it is highly unlikely that the bankruptcy trustee, much less the judge, would have approved of this transfer or allowed it to happen. 

3) It can be assumed that there was a first mortgage on this property, which was either in the name of Deal (again, who is a creditor in this situation), or that Deal as part of the transfer agreed to assume the obligations under the first mortgage, which eliminates at least one party to the bankruptcy case and any potential residual proceeds.

4) If there is equity in this property, it is unlikely any other creditor, secured or unsecured, was willing to take on the liability of the first mortgage in order to get whatever equity may be left after a liquidation.  Given today’s real estate environment, and the likelihood that the Wilder’s probably borrowed what they could against the house to keep their business going, the odds of equity after years of falling real estate values are about nil.

Criticism of Deal is fine and welcome where it is warranted.  This story seems to be non-news and piling on. 

Carry On.

A few weeks ago State Trooper LeCroy was heinously slain in the line of duty while performing a traffic stop. There is nothing that can be written here that will ease the pain that family feels or wipe away that tragedy. Nor is there a justification for what happened.

In the wake of the LeCroy shooting, multiple public officials have sought to lay blame on the Fulton County Judicial system. Attempting to find someone or something to blame is a natural reaction – as humans we feel compelled to address problems in order to prevent future occurrences. The basic allegations against the Fulton County Court stem from the shooter, Gregory Favors, checkered past and previous criminal acts. Favors was scheduled to have a hearing on charges that would have placed him in jail for a significant amount of time just a few weeks prior to the shooting. Some of the accusations levied against the Fulton Court system in this matter have focused on the two tiered system of complex and non-complex criminal matters. Among those raising these concerns is DA Paul Howard who helped design the non-complex/complex court calender system.

But I digress – so how is it that Favors escaped adjudication on December 13th?

On December 13th, Favors was released on a signature bond despite facing serious charges. Why? Because the Officer who arrested Favors did not appear in Court. No one appeared in Court to accuse Favors. There was no witness there to show probable cause. The decision to release Favors at this point has been criticized by many. Chief Judge of the Fulton County Superior Court Cynthia D. Wright penned a letter describing the process that led to Favors being released. You can find that letter in full here.

And Judge Wright is right. As a law and order conservative is pains me to write that – but on that day, under those circumstances, Gregory Favors should have been released until a later date. The Magistrate Judge can not simply infer whether there is probable cause when there is no one there to establish said cause. If that were the case anyone of us could be locked up by a Judge even if we were innocent. Georgia has codified this 48 hour provision in O.C.G.A. 17-4-62, which you can read an interpret for yourself. This is a case of the Magistrate Judge following the law. If one has an issue with this release then they ought to attack the law – not the Judges. Removing the Magistrate Judges from the system will not fix the problem and will likely exacerbate the potential for tragedies like this of occurring again. This may come as a shock – but even our judicial system is struggling with budget cuts. There are not enough Judges, Prosecutors and Public Defenders. For example, Fulton County has a high rate of appeals overturning convictions for lack of a speedy trial – despite the fact that Fulton has enough ADAs to service over half of South Georgia.

Despite the December 13th decision being correct, this tragedy should have never happened. The AJC has a full account of all of the missteps involving Favors compiled from their investigation of this issue. Favors appeared to dodge serious criminal penalty earlier this year because the charges were for nonviolent felonies – which is a fancy way to say possession of drugs. Our newly installed Governor Nathan Deal broached the subject of these sort of crimes and the folks who commit them in his inaugural address.

Everyone ought to agree that there are problems in our criminal justice system. From Fulton County to Taliaferro County these problems exist. How to fix these problems is what we as a State must begin to debate. Do we become lax in enforcing drug laws so we can catch the more dangerous offenders or do we start shipping prisoners down to Okefenokee to work on a chain gang? Unlike most issues facing Georgia these days, this is one that public officials at nearly every level have some influence in – Governor Deal, Mayors like Kasim Reed, individual legislators, local District Attorneys, Judges, Chiefs of Police and even the County Sheriff must have a hand in the solution if we are to fix the problems in Georgia’s criminal justice system.

*Nothing in this blog should be construed as giving legal advice nor commentary on the law. If you have legal questions consult an attorney.