Supreme Court of Georgia Splits on Motion to Disqualify All Justices, Leaving Three Refusing to DQ

State Supreme Court Splits on Recusing in Fight Over Justice Blackwell’s Seat

The court named five superior court judges to hear the case alongside the three remaining justices.

By R. Robin McDonald | March 23, 2020 at 10:03 AM

Five of eight justices on the State Supreme Court will recuse from hearing a case over the canceled election for one of their colleagues’ seat, according to an announcement Monday.

The three remaining justices will hear appeals by former U.S. Rep. John Barrow and former state Rep. Beth Beskin, who want to reinstate the canceled election for Justice Keith Blackwell’s seat. Barrow and Beskin both sought to run for Blackwell’s post but were denied that opportunity when the secretary of state canceled the election at the governor’s request.

Justices John Ellington, Nels Peterson, Michael Boggs and Charles Bethel have recused, in addition to Blackwell himself. There is also one unfilled vacancy on the court.

Chief Justice Harold Melton, Presiding Justice David Nahmias and Justice Sarah Warren did not recuse, the order said. The order gave no explanation for how the justices reached their decisions.

Court spokeswoman Jane Hansen said that recusal “is a decision for each justice to make,” and that they do not comment on their private deliberations.

Monday’s ruling came in response to a recusal motion Barrow sought last Friday after the Court of Appeals punted the case to the state Supreme Court.

The high court also ordered an expedited review of petitions for writs of mandamus by Barrow and Beskin. The election was originally scheduled for May 19.

In its order, the high court named five superior court judges to replace the recused justices. They are Scott Ballard of the Griffin Judicial Circuit, Brenda Holbert Trammell of the Ocmulgee Judicial Circuit, the Southern Circuit’s Richard Cowart, Oconee Circuit Chief Judge Sarah Wall, and Timothy Walmsley of the Eastern Circuit in Savannah.

Clerk Tee Barnes chose the replacement judges “at random from a pre-existing list,” according to the court order. Court spokeswoman Jane Hansen said the court has for years maintained a list of superior court and appeals court judges who step in whenever a justice recuses.

Melton, Nahmias, Warren, and the five new replacements all signed Monday’s order.

The issues the high court said it will consider focus on whether Blackwell’s seat has been vacated, giving the governor the right to appoint his successor, or whether he still remains in office, which would dictate that an election be conducted for his seat.

Blackwell, who was up for reelection this year, submitted his resignation to Gov. Brian Kemp on Feb. 26, but it won’t take effect until Nov. 18.

On March 1, the day before qualifying opened, Kemp’s executive counsel notified Secretary of State Brad Raffensperger that the governor intends to fill Blackwell’s seat by appointment because he accepted the justice’s resignation within six months of the May 19 general election.

But Barrow and Beskin contend that if Blackwell is still active on the bench, his seat is not vacant, and the originally scheduled election should go forward.

On Monday, Barrow co-counsel Lester Tate—a former chairman of the Judicial Qualifications Commission which polices judicial ethics—said he was “shocked that with a majority of the justices recusing that any justice—particularly Presiding Justice Nahmias—would attempt to continue to participate and give the public no facts or law whatsoever to justify that decision.”

Tate also said the decision by three justices to remain on the case “is inconsistent with principles of openness and impartiality” and “violates the rules that Justice Nahmias, himself, has set down for other judges to abide by.”

Tate also cited an opinion Nahmias authored where the justice held that a superior court judge who had refused to recuse had erred.

“Yet,” Tate continued, “here, he takes the position that he can not only make his own decision as to whether to continue to participate, but can do so without offering any reasoning.” Tate is working alongside a team of attorneys from Pope McGlamry, including former U.S. attorney Michael Moore of the Middle District of Georgia.

“ I don’t recall another scenario where the majority of the Supreme Court agreed that one course of action was appropriate, but yet the minority ruled,” Moore said of the decision by three of the justices not to recuse.

“If their conduct is to become the accepted norm, Georgia judges will no longer be expected to act without the appearance of impropriety or impartiality. Instead, it’ll be OK as long as they choose the ethical course of conduct some of the time.”

A spokeswoman for state Attorney General Chris Carr, whose office represents Raffensperger and Blackwell, declined to comment. Raffensperger’s spokesman also declined to comment.

At the heart of the legal dispute is a provision of the state constitution that addresses the governor’s right to fill judicial vacancies by appointment that are otherwise elected posts. Under that provision, an appointee’s term will expire on Jan. 1 following the next general election, but only if that election takes place more than six months after the appointee takes office.

But if a general election is scheduled less than six months from the date of the governor’s appointment, that appointee will not have to run in the next scheduled general election—a buffer of more than two years to secure his or her position as an incumbent.

Barrow’s lawyers moved to disqualify or recuse all nine justices from considering the appeal last Thursday, citing the state Code of Judicial Ethics, which requires judges to disqualify themselves in any proceeding in which their impartiality might reasonably be questioned.

They filed the recusal motion after the Georgia Court of Appeals punted Barrow’s emergency appeal for a mandamus writ to the state Supreme Court last Thursday. Last week, Fulton County Superior Court Judge Emily Richardson turned down the mandamus petitions and affirmed Kemp’s authority to fill what she said was the vacancy Blackwell created by his resignation.

The five appointed judges will hold the majority in considering the appeals. Ballard won his seat in 2016 when, as the Griffin circuit’s district attorney, he won a rare upset over an incumbent, Judge Tommy Hankinson, who’d been in office for 14 years.

Ballard spent 20 years practicing with his father in Fayetteville, specializing in defense and family law before becoming circuit district attorney. Ballard attended law school at Florida State University and joined the State Bar of Georgia in 1984.

Trammell was a solo practitioner in 2014 when Gov. Nathan Deal tapped her for the Ocmulgee Circuit Superior Court. She earned her law degree from the University of Georgia and was admitted to the bar in 1977.

Colquitt County Superior Court Judge Richard Cowart received his law degree from Mercer University and was admitted to the Georgia bar in 1976. Cowart made news several years ago when he banned advertisements by a law firm soliciting potential clients who might suspect a loved one was neglected or abused at a Moultrie home for senior citizens. He was later reversed by the state Supreme Court.

Walmsley was appointed to the Superior Court of the Eastern Judicial Circuit in February 2012 by Deal. He previously spent time as a Chatham County Magistrate and a partner in the Savannah law firm of Hunter, Maclean, Exley & Dunn, specializing in commercial and real estate litigation. Walmsley received his J.D. in 1996 from the Tulane University School of Law.

Wall received her law degree from Mercer and joined the State Bar of Georgia in 1988. She ran unopposed for election in 2012 and 2016 and serves on the Judicial Council of Georgia.

Wall is the presiding judge in the highly-publicized 2015 double-murder case of an elderly Marietta couple by a man they contacted about buying a car on Craigslist. In 2017, Walls tossed out the indictment of suspect Ronnie Adrian Towns after finding that some members of the grand jury were not randomly selected. Wall’s decision was upheld last by the Supreme Court in a 7-2 ruling authored by Blackwell. Towns was re-indicted last month.

Fight for Justice Blackwell’s Seat Heads to Ga. Supreme Court, Teeing Up Potential Conflict of Interest

The Georgia Court of Appeals on Thursday transferred an emergency appeal over whether to reinstate an election for state Supreme Court Justice Keith Blackwell’s seat to the state Supreme Court for a ruling.

By R. Robin McDonald and Greg Land | March 19, 2020 at 01:19 PM

The Georgia Court of Appeals punted an emergency appeal to the state Supreme Court Thursday intended to reinstate an election for the seat held by Justice Keith Blackwell.

The appellate court’s refusal to take up former U.S. Rep. John Barrow’s appeal of the state’s decision to cancel the scheduled election for Blackwell’s seat sets up a potential conflict of interest for Blackwell and his fellow justices.

Barrow’s lawyers moved to disqualify or recuse all nine justices from considering the appeal late Thursday, citing the state Code of Judicial Ethics, which requires judges to disqualify themselves in any proceeding in which their impartiality might reasonably be questioned.

Blackwell, who remains a current member of the court because his Feb. 26 resignation doesn’t take effect until Nov. 19, was also subpoenaed as a witness and submitted stipulated testimony in a Fulton County Superior Court hearing on Barrow’s mandamus petition. Blackwell was represented by the state attorney general’s office, which also represents Secretary of State Brad Raffensperger, the target of Barrow’s mandamus petition.

Barrow lawyers also said the impartiality of the Blackwell’s fellow justices “might reasonably be questioned by a skeptical public.”

On Thursday, the state appeals court handed off the case to the state Supreme Court, while acknowledging it may have jurisdiction. A 2016 law expanded the appeals court’s jurisdiction to include all equity cases, which it acknowledged could include Barrow’s mandamus petition seeking to reinstate the election. The appeals court said the Georgia Constitution gives the state’s highest court “exclusive appellate jurisdiction” over all election contests, including challenges involving candidates for office and election results.

The election was nixed on March 1, the day before qualifying began, after Gov. Brian Kemp notified Secretary of State Brad Raffensperger that he will fill Blackwell’s seat by appointment after accepting the justice’s resignation, which will not take effect until November.

“In the present appeal, the grant or denial of mandamus relief appears to be merely ancillary to the underlying election contest,” the appeals court order said. “Consequently, the Supreme Court may have jurisdiction over any appeal of the superior court’s order denying Barrow’s petition for a writ of mandamus.”

On Thursday, Barrow co-counsel Michael Moore, a former U.S. attorney for the Middle District of Georgia, said that maneuvers to appoint rather than elect Blackwell’s replacement “already gives the appearance that a group of insiders have determined that hand-selecting a justice and protecting a judicial pension is more important than protecting the people of Georgia’s right to vote.”

That suspicion would only be enhanced if sitting justices were to hear a case directly involving someone they work with every day, Moore said. “That’s a little bit like asking the chickens in the henhouse to vote on whether one of them can keep its golden egg.”

Moore is one of a team of Pope McGlamry lawyers representing Barrow. Lester Tate, a partner at Cartersville’s Akin & Tate and a former president of the State Bar of Georgia, is co-counsel.

Fulton County Senior Judge Melvin Westmoreland, a former president of the state’s Council of Superior Court Judges, predicted Thursday that Blackwell will disqualify himself from considering an appeal over whether Gov. Brian Kemp can appoint his replacement. Blackwell submitted his resignation to Kemp on Feb. 26 while notifying the governor he will remain in office for nine more months.

But Westmoreland also suggested that the entire state Supreme Court bench should recuse.

“Whether the public perceives the other justices as being able to impartially decide the matter so important to one of their companions is difficult to gauge,” Westmoreland said. “In an abundance of caution, it may be in the Supreme Court’s best interest to consider a process which allows judges from outside their bench to hear and decide this case.”

Former state Supreme Court Justice Leah Sears also weighed in on Wednesday, saying she was disappointed that, for now, there will be no election for Blackwell’s seat. “The position of a Supreme Court justice, in general, is an elected one, even though that doesn’t happen,” she said.

The appeals court’s move came only 24 hours after Barrow’s lawyers filed an emergency motion to set aside a Fulton Superior Court judge’s order affirming the secretary of state’s decision to cancel the election.

Barrow, who intended to run for Blackwell’s vacant seat, sought a mandamus writ ordering Raffensperger to reopen qualifying and reinstate the election. A second would-be candidate—former state legislator and Mathis Freeman & Gary partner Beth Beskin—filed a similar mandamus petition after she, too, was barred from qualifying to run. Beskin filed a similar appeal as Barrow Thursday.

?Intervenors appeal to CA11 after Judge Marra denies intervention as a right or permissively. Intervenors argue if permissively, they should be allowed access to SEALED docs. Judge Jill Pryor denies Motion to Disqualify. Two weeks later SEALS docs. ? @VolokhC #appellatetwitter pic.twitter.com/YycCyyIpDX

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What is the Noah’s Ark Doctrine? @TheFlaBar @flcourts @GACourts @blaw @ReutersLegal @MotherJones @HuffPostPol @Ocwen_Help @CFPB @CFPB_Watch @illinoiscourts @SupremeCourt_TX @JudgeDillard @atlblog @HoustonChron @TexasLawyer @cnn @ABCPolitics @SCOTUSblog https://t.co/ft6GU0pYwS pic.twitter.com/dgpO2eFofW

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