Georgia’s Supreme Court Fails Again

It never ceases to amaze me. How do Supreme Courts decide which petitions for certiorari they will grant?

Georgia’s Supreme Court this year, passed to Court of Appeals, almost all of the last kind of cases that you could directly appeal to Georgia Supreme Court. I have no idea what they do now. Sure, they still take death penalty cases, some criminal cases, but other than that, who knows what they do.

There was a Petition for Certiorari filed due to the fact that Judge Hunter in DeKalb County Superior Court, had ruled that service of process at the Courthouse was proper service. That only goes totally against all rulings ever since that law was put into place. The man, was at the Courthouse to testify, the process server came up to him, right outside of the courtroom where he was to testify. The process server threw the papers down at the man’s feet, laughed and said “Now Your Served!” and ran off. DeKalb County Superior Court’s Judge Hunter, said that that had been proper service.

In Georgia, like in most other states, when you are at the Courthouse, to give testimony, of any kind, you are 100% privileged from service. No if’s and’s or but’s.

Ga. Process And Service § 4:2
Georgia Process and Service with Forms
Database updated November 2015
Philip Weltner II
Part II. SERVICE
Chapter 4. Service In General
§ 4:2. Privilege from service
Even if a defendant is served with process in accordance with the mandated procedures, that service may nonetheless be invalid if the defendant is privileged from service. The Judiciary Act of 1799 stated that “all witnesses going to, attending on, and returning from any of the said courts, shall be free from arrest or any civil process.” While this provision is declaratory of the common law privilege, it is not exhaustive of all the exemptions from service recognized in this state.1
Any witness going to, attending, or returning from an appearance in court is privileged from service of process, even if he appeared voluntarily and not pursuant to a subpoena.2  The privilege applies to all aspects of the judicial proceeding.   Thus, a nonresident who is a party to a suit pending in another state and who comes into Georgia under stipulation of counsel solely for a deposition is immune from service.3
This privilege does not apply to a resident defendant in a criminal case.4  A nonresident criminal defendant, however, is immune from civil process in two situations. First, a nonresident who is in Georgia under extradition proceedings is not subject to service in a civil action until he is convicted or, if acquitted, given a reasonable opportunity to return to the state from which he was extradited.5 Second, a nonresident who voluntarily appears in a criminal proceeding in this state, and thus saves the state the expense, delay and uncertainty of an extradition hearing and thereby promotes the orderly, expeditious and unobstructed administration of justice, is given immunity.6
A nonresident witness does not waive his immunity by availing himself of the Georgia courts. The use of the courts does not constitute a waiver.7

1    Ewing v. Elliott, 51 Ga. App. 565, 181 S. E. 123 (1935).

2    O.C.G.A. § 24-13-1; Fidelity & Cas. Co. v. Everett, 97 Ga. 787, 25 S.E. 734 (1896).

3    Ewing v. Elliott, 51 Ga. App. 565, 181 S. E. 123 (1935).
Husband did not waive service of an ex parte family violence protective order when he appeared in court to answer petition, as he had not been served with a copy of the petition itself. Attempts to serve him in court and afterwards in the court parking lot were inadequate. Husband argued the long-standing rule that a suitor or witness in attendance upon the trial of any case in court is privileged from arrest under any civil process, and is exempted from the service of any writ or summons upon him or them while in attendance upon such court, or in going to or returning therefrom. See Steelman v. Fowler, 234 Ga. 706, 217 S.E.2d 285 (1975). The later judicially-created exception from this rule for nonresidents who are in the state temporarily for some purpose other than to appear in court as a party or witness does not apply here, even though Husband was a nonresident in the state to appear in court as a party, because the rule is intended to insulate a party in attendance from service in a new action, and although the action had previously proceeded ex parte, the action was new to Husband, who appeared solely to contest the initial service. Loiten v. Loiten, 288 Ga. App. 638, 655 S.E.2d 265 (2007).

4    Warren v. Hiers, 105 Ga. App. 202, 124 S. E. 2d 445 (1962). This rule had been based on the law that a defendant could not be a witness in his own case. Now, however, pursuant to O.C.G.A. § 17-7-28 (GCA § 27-405), a defendant can be sworn and testify in his own case just like any other witness. Accordingly, resident criminal defendants, even though they now may be sworn as witnesses in their own cases, are not immune from service of process while in court. Payton v. Green, 179 Ga. App. 438, 346 S. E. 2d 884 (1986).

5 Uniform Criminal Extradition Act, O.C.G.A. § 17-13-45 (GCA § 44-425).

6    White v. Henry, 232 Ga. 64, 205 S. E. 2d 206 (1974).
The term “nonresident” refers only to nonresidents of Georgia, not nonresidents of the county in which the trial of the criminal defendant is proceeding. Payton v. Green, 179 Ga. App. 438, 346 S. E. 2d 884 (1986).

7     Word v. Word, 236 Ga. 100, 222 S. E. 2d 382 (1976); Steelman v. Fowler, 234 Ga. 706, 217 S. E. 2d 285 (1975); Couture v. Couture, 242 Ga. 11, 247 S. E. 2d 751 (1978).

End of Document
© 2016 Thomson Reuters. No claim to original U.S. Government Works.

The Republican presidential contender identifies 11 state and federal judges, but no litigators. Marcia Coyle, The National Law Journal


Photo: andykatz/iStockphoto.com
Trump Names 11 SCOTUS Picks, Bypassing Big Law
http://www.nationallawjournal.com/id=1202757984757/Trump-Names-11-SCOTUS-Picks-Bypassing-Big-Law?mcode=0&curindex=0&curpage=ALL
The Republican presidential contender identifies 11 state and federal judges, but no litigators.
Marcia Coyle, The National Law Journal
May 18, 2016

Republican presidential candidate Donald Trump gestures while speaking to the press in New York City, after his five-state super Tuesday win. April 27 2016.
Republican presidential candidate Donald Trump gestures while speaking to the press in New York City, after his five-state super Tuesday win. April 27 2016.

Presumptive Republican Party presidential nominee Donald Trump’s list for potential U.S. Supreme Court nominees is heavy on federal appellate judges and former clerks for conservative justices and light on big names in politics and private practice.

Trump’s list of 11 potential nominees doesn’t include several conservative judges who have been on Supreme Court watch lists in the past, including U.S. Court of Appeals for the D.C. Circuit Judges Brett Kavanaugh and Janice Rogers Brown, Sixth Circuit Judge Jeffrey Sutton and Fifth Circuit Judge Priscilla Owen.

Trump’s list, released Wednesday, doesn’t include any nonjudges. Other names floated in the past as possible nominees for a future Republican president included former U.S. Solicitor General Paul Clement, now a partner at Bancroft, and Sen. Mike Lee, R-Utah.

Also not on the list: Trump’s sister, Third Circuit Judge Maryanne Trump Barry, although that was no surprise. Trump has praised his sister as “brilliant,” but said he wouldn’t consider nominating her to the Supreme Court because of the conflict of interest. He’s also said that the two share “different views.”

Related: Texas’ Most Prolific Judicial Tweeter Makes Trump’s Shortlist

Trump’s list drew praise and criticism depending on where the commentator sits on the political spectrum.

“The [Supreme] Court needs more justices who will base their decisions on the law, not politics, even under pressure, especially since the next president is likely to determine the direction of the court for a generation,” Carrie Severino, chief counsel and policy director of the conservative Judicial Crisis Network, said.

“It is also heartening to see so many Midwesterners and state court judges on the list—they would bring a valuable perspective to the bench, particularly since they have already served on a court of last resort in their own states,” she added.

Miranda Blue of People for the American Way noted: “It looks like Trump has, true to his promise, picked potential justices who would advance the conservative efforts to skew the federal courts far to the right.”

Senate Judiciary chairman Charles Grassley, R-Iowa, said in statement, “Mr. Trump has laid out an impressive list of highly qualified jurists, including Judge Colloton from Iowa, who understand and respect the fundamental principle that the role of the courts is limited and subject to the Constitution and the rule of law.”

So who made the list?

Steve Colloton
Judge Steven Colloton, 53, joined the Eighth Circuit in 2003. Colloton is a former clerk to the late Chief Justice William Rehnquist. He was appointed by President George W. Bush. He previously served with independent counsel Kenneth Starr.
Before joining the appellate court, Colloton was the U.S. attorney for the Southern District of Iowa.

Allison Eid
Colorado Supreme Court justice Allison Eid is a former Clarence Thomas clerk. She took her seat on the state high court in 2006, leaving her position on the faculty of the University of Colorado Law School, where she taught constitutional law, legislation, the law of politics, first-year torts and advanced torts.
Before teaching, she also practiced commercial and appellate litigation in the Denver office of Arnold & Porter.

Thomas Hardiman
Judge Thomas Hardiman, 50, who joined the Third Circuit in 2007 just 3 1/2 years after taking his seat as a district court judge for the Western District of Pennsylvania.
Hardiman’s ruling that a jail policy of strip searching all arrestees does not violate the Fourth Amendment was upheld by the Supreme Court in 2012. In 2013, he dissented from his court’s decision upholding under the Second Amendment New Jersey’s law requiring applicants for licenses to carry handguns in public to show “justifiable need.”
“Those who drafted and ratified the Second Amendment were undoubtedly aware that the right they were establishing carried a risk of misuse, and States have considerable latitude to regulate the exercise of the right in ways that will minimize that risk,” he wrote in Drake v. Filko. “But States may not seek to reduce the danger by curtailing the right itself.”

Related: Third Circuit Judge Among Trump’s Supreme Court Picks

And he also dissented in a 2013 decision holding that a public school violated the First Amendment by banning students from wearing bracelets inscribed with “I [love] boobies” sold by a breast cancer awareness group.

Raymond Gruender
Judge Raymond Gruender, 52, became U.S. attorney for the Eastern District of Missouri in 2001 and served in that position until his confirmation to the Eighth Circuit in 2004.
Gruender has written opinions holding that the Pregnancy Discrimination Act of 1978 did not give female employees the right to insurance coverage for contraceptives used solely to prevent pregnancy.
He dissented from a panel ruling that upheld an injunction striking down a South Dakota law requiring abortion providers to inform patients that an “abortion will terminate the life of a whole, separate, unique, living human being.” When the case was heard en banc, Gruender, writing for the full court, upheld the law as constitutional on its face.

Raymond Kethledge
Judge Raymond Kethledge, 49, sits on the Sixth Circuit and is a former clerk to Justice Anthony Kennedy. He joined the appellate court in 2008 after practicing law as a corporate attorney and former counsel to Ford Motor Co.

Joan Larsen
Trump’s list also names a number of state supreme court judges.
Joan Larsen was named to the Michigan Supreme Court by Gov. Rick Snyder in September 2015. Larsen is a former clerk to the late Justice Antonin Scalia. She worked in the George W. Bush Department of Justice in 2002-2003 and then joined the University of Michigan School of Law as an adjunct professor and special counsel to the dean.
When appointed to the state court, Larsen said she would be a “strict constructionist,” explaining, “I believe in enforcing the laws as written by the Legislature and signed by the governor. I don’t think judges are a policy-making branch of the government.”
In March, at a memorial for Scalia, Larsen recalled Scalia as a “fundamentally happy man” who would sing in his chambers and whistle in the corridors of the court. Larsen remembered one time when she made a mistake citing Webster’s Third New International Dictionary in a draft opinion.
Scalia, a critic of that tome, called her out. Larsen said she had used that edition because it was in the justice’s front office. Scalia said the dictionary had been put there as a “trap laid for the unwary.”

Thomas Lee
Trump also named a judge with a well-known pedigree in Washington legal circles. Thomas Rex Lee, son of former Solicitor General Rex Lee, joined the Utah Supreme Court in July 2010.
Lee is a former Clarence Thomas clerk who specialized in trademark litigation when in private practice. He served as deputy assistant attorney general in the Civil Division of the U.S. Justice Department from 2004 to 2005.
Lee has been called a pioneer in “corpus linguistics” to determine ordinary meaning and has applied that in an opinion. He also has argued in the U.S. Supreme Court, representing Utah in Utah v. Evans, a 2002 challenge by the state to the Census Bureau’s use of “hot-deck” imputation, a statistical method.

William Pryor
Judge William Pryor of Alabama joined the Eleventh Circuit in 2004 despite considerable controversy over his nomination. He was criticized by Senate Democrats in the 108th Congress who called him an extremist for such statements as referring to the Supreme Court as “nine octogenarian lawyers” and saying that Roe v. Wade was the “worst abomination in the history of constitutional law.”
President George W. Bush installed Pryor using a recess appointment to bypass the regular Senate confirmation process. He received Senate confirmation on May 23, 2005, after Sen. John McCain, R-Arizona, announced an agreement between seven Republican and seven Democratic U.S. senators, the so-called Gang of 14, to ensure an up-or-down vote on Pryor and other nominees.
On the bench, Pryor specially concurred in an unanimous panel decision enjoining the secretary of Health and Human Services from enforcing the contraception insurance mandate under the Affordable Care Act against Catholic television network EWTN. That case was one of the petitions pending in the high court until the justices ruling Monday in Zubik v. Burwell.
In 2009, Pryor led a unanimous panel upholding Georgia’s photo ID law as a voting requirement.

David Stras
Another former Clarence Thomas clerk on the list is Minnesota Supreme Court associate justice David Stras, 41. Stras joined that court in 2010. He taught at the University of Minnesota Law School for six years prior to his appointment.

Diane Sykes
Seventh Circuit Judge Diane Sykes, 58, of Wisconsin, is well-known in conservative circles and has been called by some liberal groups as the most conservative judge on Trump’s list. She is a former justice of the Wisconsin Supreme Court.

Her more recent opinions include supporting a voter ID law and expanding the ability of religious objectors to limit their employees’ access to contraceptive insurance coverage under the Affordable Care Act. She also wrote an opinion in 2011 holding that the Second Amendment prohibited Chicago’s ban on firing ranges
Sykes spoke about her clerk-hiring practices at a conference in Milwaukee in 2014. “I don’t want to be fighting with someone all year,” Sykes said about hiring a clerk whose views are different than hers. “I don’t only hire Federalist Society members” as clerks, she said, but there has to be “some general philosophical fit.”

Don Willett
Another state supreme court justice is well-known to the Twitter community and someone who has actually criticized Donald Trump. Texas Supreme Court Justice Don Willett, 49, worked on the Bush-Cheney presidential campaign and transition team. In the White House, Willett served as special assistant to the president and director of law and policy for the White House Office of Faith-Based and Community Initiatives.
In 2003, Willett returned to Texas to become state deputy attorney general for legal counsel in the office of newly elected Texas Attorney General Greg Abbott, where he served until he was appointed to the state high civil court in 2005.
Circuit judges’ financial disclosure forms

We’ve compiled below some of the recent financial disclosure forms of judges on Trump’s shortlist:

Steven Colloton of Iowa: 2014 and 2015
Raymond Gruender of Missouri: 2014 and 2015
Thomas Hardiman of Pennsylvania: 2014 and 2015
Raymond Kethledge of Michigan: 2014 and 2015
William Pryor of Alabama: 2014 and 2015
Diane Sykes of Wisconsin: 2014 and 2015
Zoe Tillman contributed to this report.

DeKalb County Georgia Judge Cynthia J. Becker, May Get Her Just Due!

New Trials for DeKalb Corruption Convicts Were Wrong, Judges Say

Kathleen Baydala Joyner, Daily Report

http://www.dailyreportonline.com/id=1202720970954?keywords=Pat+Reid+Tony+Pope&publication=Daily+Report&slreturn=20150223141513

March 18, 2015

The Georgia Court of Appeals has agreed with prosecutors that DeKalb County Superior Court Judge Cynthia Becker was wrong to reverse the felony corruption convictions of a former county school district administrator and her ex-husband.

The decision by the three-judge appeals panel on Wednesday extends a roller-coaster ride for the defendants, who were released from prison after Becker’s surprise order last fall. The appeals court vacated Becker’s order granting a new trial to former schools chief operating officer Pat Reid.

Judge William Ray II wrote for the panel that even though Becker didn’t believe the testimony of Reid’s co-defendant and former boss, Crawford Lewis, Becker did not fully weigh Lewis’ testimony against the remaining evidence before granting a new trial to Reid. The court remanded Reid’s case to the trial court for further consideration of Reid’s motion for new trial.

The panel also reversed Becker’s order granting a new trial to Reid’s ex-husband, architect Tony Pope, stating she lacked authority over that matter.

A county grand jury indicted Reid, Pope and Lewis, the former schools superintendent, for conspiracy and theft in July 2013. The charges stemmed from allegations they manipulated school construction contracts for personal gain.

In October 2013, Lewis pleaded guilty to a misdemeanor obstruction charge in exchange for his testimony at trial against Reid and Pope. A trial jury convicted Reid and Pope in November 2013 of racketeering. Reid also was convicted of theft.

Reid received a 15-year prison sentence, and Pope received an eight-year prison sentence.

Lewis’ plea agreement with the DeKalb district attorney’s office called for a sentence of 12 months of probation. But Becker rejected that part of the deal and instead sentenced Lewis to a year in prison.

“Without challenging the truthfulness of Lewis’ testimony, the trial judge—admittedly incensed by what she considered to be the ‘abhorrent’ criminal conduct of all involved—emphasized that Lewis was ‘a public official, this was on his watch, he stood by. And then he hindered and interfered with and tried to stop the completion of a rightful, lawful investigation,'” Ray wrote in the opinion, quoting Becker’s words at Lewis’ sentencing.

Lewis then filed a motion for reconsideration, which Becker denied. The appeals court found Becker “changed her rationale for refusing to consummate the previously agreed upon plea deal, and stated for the first time that her rejection of Lewis’ plea and the resultant sentence were based upon ‘the credibility, the believability, the probability or the improbability of (Lewis’) testimony.'”

Lewis appealed, and the DA’s office—concerned about its credibility in making plea deals—took Lewis’ side. The Court of Appeals last October remanded Lewis’ case to Becker so she could identify specific testimony by Lewis that she considered to be questionable. In a footnote of that opinion, the court implied that if the credibility of Lewis’ testimony was in question, then the validity of Reid’s and Pope’s convictions should also be questioned.

Becker responded before the appeals court could send its remittitur, pointing out pieces of Lewis’ testimony she found untruthful and ordering new trials for Reid and Pope.

The Court of Appeals responded, halting her orders and the release of Reid and Pope from prison.

Reid and Pope had indeed filed motions for new trials, but Pope’s attorney withdrew his motion just before Becker entered her order and filed a notice of appeal. The DA’s office has alleged that this action was the result of ex parte communications between Becker and Pope’s lawyer.

Because Pope no longer had a pending motion for new trial, the Court of Appeals on Wednesday found that Becker’s order related to Pope was improper as a matter of law.

Becker later acknowledged that she was the subject of an investigation by the Judicial Qualifications Commission but said she would step down March 1 to get married. Gov. Nathan Deal received a short list of candidates from his Judicial Nominating Commission nearly two months ago but has not yet made an appointment.

DeKalb Superior Court Judge Gregory Adams granted Reid and Pope bond in December.

A spokesman for DeKalb District Attorney Robert James had no comment.

Reid’s attorney, Tony Axam, said his client will remain free on bond while the trial court considers her motion for new trial. Axam also said he is confident that Lewis’ testimony was crucial for prosecutors and so the remaining evidence would not be enough to convict his client.

However, Axam seemed perplexed that another judge, one who did not witness Lewis’ testimony first hand, will be the one to decide whether Reid should get a new trial.

“I contend only Judge Becker can talk about whether Crawford Lewis passed the smell test,” he said.

Axam said he may consider subpoenaing Becker as a witness.

Pope’s attorney, John Petrey, could not be reached for comment

JQC Files Complaint Against Ex-DeKalb Judge

Kathleen Baydala Joyner, Daily Report

http://www.dailyreportonline.com/id=1202721365396/JQC-Files-Complaint-Against-ExDeKalb-Judge?et=editorial&bu=Daily%20Report&cn=20150323&src=EMC-Email&pt=Breaking%20News&slreturn=20150223141240

March 23, 2015    | 0 Comments

(Image of Cynthia Becker Courtesy of KENT D. JOHNSON/AJC)

Former DeKalb County Superior Court Judge Cynthia Becker is the subject of an official ethics complaint filed Monday with the Supreme Court of Georgia.

The state Judicial Qualifications Commission, the agency tasked with investigating and prosecuting wayward judges, has charged Becker with six counts of violating the Code of Judicial Conduct, mostly related to her handling of a 2013 DeKalb County schools corruption case.

That case resulted in the convictions of former school system COO Pat Reid and her ex-husband, architect Tony Pope. The jury found that Reid and Pope conspired to fix school construction contracts for personal gain. Former schools superintendent Crawford Lewis was to be a co-defendant in the case but took a pretrial deal in which he pleaded guilty to a misdemeanor obstruction charge in exchange for his testimony against Reid and Pope. All three were eventually sentenced to prison time.

Lewis successfully appealed his sentence to the state Court of Appeals, with the judges holding that Becker should have honored the district attorney’s deal allowing Lewis to be free on probation. Becker had said she didn’t believe Lewis’ testimony.

The state Court of Appeals last week overturned Becker’s order granting new trials for Reid and Pope.

In its filing with the high court, the JQC charged Becker with failing to honor the plea agreement between Lewis and the DeKalb County District Attorney’s Office; making false or misleading statements to the commission about whether she knew if Lewis or his attorneys had sought bond; engaging in improper ex parte communications with attorneys for Reid and Pope; and making public comments in a political forum about the Lewis case.

Two other charges stemmed from her actions while serving as the court’s November/December grand jury term judge. The JQC has charged Becker with refusing to perform her duty to charge the jurors and accept the return of new indictments in open court.

Although Becker stepped down from the bench on March 1, as she promised to do last fall, the JQC claims she is still subject to the judicial code because a complaint was filed within a year of her time as a judge.

Becker said Monday that she had not seen the JQC’s filing and had no comment on its contents.

The Daily Report will have more details later Monday and in Tuesday’s print edition.