CASES DUE FOR ORAL ARGUMENT

Summaries of Facts and Issues

Please note: These summaries are prepared by the Office of Public Information to help news reporters determine if they want to cover the arguments and to inform the public of upcoming cases. The summaries are not part of the case record and are not considered by the Court at any point during its deliberations. For additional information, we encourage you to review the case file available in the Supreme Court Clerk’s Office (404-656-3470), or to contact the attorneys involved in the case. Most cases are decided within six months of oral argument.

Monday, November 2, 2015

10:00 A.M. Session

In the morning session, the Georgia Supreme Court will hear oral arguments related to two Formal Advisory Opinions by the Judicial Qualifications Commission (JQC), the disciplinary agency which investigates complaints of ethical misconduct by judges and issues Advisory Opinions regarding appropriate judicial conduct. Before arguing the merits of those two opinions, first the parties will argue whether the state’s high court has the legal authority to review either case.

IN RE: JUDICIAL QUALIFICATIONS COMMISSION’S FORMAL ADVISORY OPINION NO. 241 (S15Z1597)

            The Council of State Court Judges is asking the Georgia Supreme Court to withdraw the JQC’s Formal Advisory Opinion No. 241, which prohibits judges or judges’ councils from filing amicus briefs in a pending case. (An “amicus curiae” brief is a legal brief filed in court by a person or organization interested in influencing the outcome of a lawsuit while not being a party to the lawsuit.)

FACTS: This particular advisory opinion stems from a private probation case brought by 13 individual plaintiffs against Sentinel Offender Services, a private probation company. In November 2014, this Court upheld as constitutional the Georgia statute that allows state courts to contract with private probation companies for the supervision of misdemeanor probationers. But it also ruled that state courts may no longer lengthen the probationers’ sentences beyond what was originally ordered – a practice called “tolling.”

Prior to the Court’s decision and before the case was argued before the Justices, in July 2014 the Council of State Court Judges filed an amicus curiae brief, arguing that state law does not limit the trial courts’ authority to use private probation companies to supervise misdemeanor probationers and that the state courts have inherent power to impose conditions on probation, such as electronic monitoring.  At the time, the Council was represented by former Chief Justice Leah Ward Sears, who is now in private practice. In response to the brief, lawyers for the 13 probationers sent a letter to the JQC asking whether the Council could ethically file amicus briefs in the state Supreme Court in cases involving private parties. The Council submitted a letter to the JQC, explaining that the Council’s brief was filed not to support a party in the Sentinel case, but “solely to assert and articulate the Council’s interest in protecting the ability of the state courts, throughout Georgia, to impose and enforce meaningful probation orders in misdemeanor cases.” On Sept. 2, 2014, the JQC issued Opinion No. 241, concluding “that filing amicus curiae briefs by judges, councils of judges or any other organization of judges in cases pending in any trial or appellate court would be improper and prohibited by the Georgia Code of Conduct.” In June 2015, the Council asked the Supreme Court to review the JQC’s opinion. The high court granted the request and asked the parties to answer the following questions: “Under Georgia law and the Georgia Code of Judicial Conduct, may individual judges or groups or councils of judges file amicus curiae briefs in pending cases? If so, under what circumstances?”

In October 2015, the JQC filed a motion asking the high court to dismiss the proceedings related to both JQC Opinion No. 241 and Opinion No. 239, arguing it lacked the authority to review them.

            ARGUMENTS (Motion to Dismiss): Attorneys for the JQC, who include former Chief Justice Norman Fletcher of the Georgia Supreme Court, argue that the state’s Supreme Court “has no authority to review a formal advisory opinion of the Judicial Qualifications Commission, absent an actual case and controversy that is appealed to the Court – just as it has no authority to review a formal advisory opinion issued by the Office of the Attorney General of Georgia.” The high court’s role is clearly set forth in JQC Rule 22 (b), which says that it may ask the JQC to reconsider one of its advisory opinions, but from that point forward, “it is in the Commission’s independent hands,” the attorneys argue. Here the high court has not asked the JQC to reconsider opinion No. 241. Rather it merely accepted a petition from the Council of State Court Judges to review the opinions – a process initiated by the Council. “Respectfully, this appellate-like procedure is not the proper process for the Court to provide input to the Commission and this proceeding should be dismissed,” the JQC’s attorneys argue. “Formally reviewing advisory opinions of the Commission is not only contrary to the constitutional case-and-controversy requirement, it raises unnecessary questions about the independence of the Commission, a constitutionally created body tasked with disciplining judges for violating the Code of Judicial Conduct,” the attorneys argue. For this Court to issue any opinion on the JQC’s Formal Advisory Opinions “opens a door best left shut,” and puts the Court at risk of issuing its own advisory opinion. Advisory opinions “are off-limits for Georgia trial courts and Georgia appellate courts,” the JQC’s attorneys argue. “This prohibition against the judiciary issuing advisory opinions is grounded in the Georgia Constitution and the broader separation of powers doctrine.” Under its rules, which were adopted by the state Supreme Court, the JQC has the power to discipline or sanction a justice of the Supreme Court. “Implicit in the rules adopted by this Court is that: (1) the JQC was not created by the Court; (2) the JQC was created by the Constitution; and (3) the JQC is an independent body not subject to the Court’s control,” the attorneys argue. And “nowhere in the Constitution does it grant this Court the authority to review, vacate, or confirm a formal advisory opinion of the JQC, as the Council has requested.” The high court did ask the JQC to reconsider its Advisory Opinion No. 239. “But that is the extent of the Court’s oversight concerning JQC advisory opinions – unless and until the opinion is involved in an actual case and controversy that reaches the Court through the appellate process.”

Attorneys for the Council of State Court Judges argue the state Supreme Court has the authority to review any of the JQC’s Formal Advisory Opinions under both the Constitution and the JQC’s Rule 22. The Constitution gives the Court the power and duty to “adopt rules of implementation” for the “discipline, removal, and involuntary retirement of judges.” To do that, this Court has set up rules governing the functions of the JQC. Under Rule 22, this Court has “authorized” the JQC “to render formal advisory opinions concerning a proper interpretation of the Code of Judicial Conduct.” “That authority, however, is neither unfettered nor unreviewable, as JQC Rule 22 makes clear,” the attorneys argue. This Court may demand that the JQC reconsider any advisory opinion it disseminates. And this Court stated in Rule 22 that its “determination of the propriety of particular conduct shall supersede any conflicting advisory opinion of the JQC.” “This Court’s authority to review and to correct erroneous advisory opinions of the JQC is necessary to effectuate its inherent power to regulate the conduct of judges,” the Council’s attorneys argue. Even the JQC previously conceded that this Court has the power to review its advisory opinions, stating in response to the Council’s petition, “the Commission has no objection to the Supreme Court reviewing the opinion. Both the Georgia Constitution and the JQC Rules contemplate such review.” It was only after seeing the legal arguments about the “incorrectness” of its advisory opinion that it has taken “an abrupt about-face and now asserts that this Court lacks jurisdiction to review its advisory opinions,” the attorneys contend. The Constitution does not immunize the JQC’s advisory opinions from this Court’s review, and the JQC misstates its powers under the Constitution. “It is not the Constitution, but rather this Court, that authorizes the JQC to issue formal advisory opinions,” the attorneys argue. The JQC’s power to discipline judges may only be exercised in accordance with the “rules of implementation” adopted by the state Supreme Court. One such rule – Rule 22 – authorizes the JQC to issue advisory opinions. “This Court could revoke Rule 22 or modify it as this Court chooses.” Finally, the “case-or-controversy” requirement does not preclude this Court’s review of the opinion as it does not limit the Court’s exercise of its supervisory power over the JQC. There are no separation-of-powers concerns here, and “the JQC also seems to forget that it is part of the judicial branch and thus subject to this Court’s supervisory power,” which is why the JQC’s analogy between this Court and the Attorney General, who is an executive branch officer, is futile. “Contrary to the JQC’s view, the Council, judicial associations, and judges are not required to risk sanction in order to challenge the JQC’s erroneous interpretation of the Code,” the council’s attorneys argue. “Rather, because the JQC claims it has the purview to issue discipline for the filing of amicus briefs, and the Council claims the constitutional prerogative to file such briefs, the Council’s challenge to JQC’s erroneous interpretation of the Code is a case.” The “case-or-controversy requirement does not preclude review of this case.”

Attorneys for JQC: Norman Fletcher, Lee Carter

Attorneys for Council of State Court Judges: Michael Terry, Jeremy Farris, Nathan Gaffney

            ARGUMENTS (Opinion No. 241): Attorneys for the Council of State Court Judges argue the state Supreme Court should withdraw Formal Opinion No. 241 under the JQC’s Rule 22 (d), which gives the high court the authority to do so. “First, there is no circumstance under which the JQC can dictate to the Council when it may or may not file amicus briefs,” the attorneys argue. “Because the JQC lacks authority to regulate the Council, its opinion as to the Council is void.” Under the Georgia Constitution, the Rules of the JQC, and the Georgia Code, the JQC is empowered only to consider the conduct of individual judges and other persons exercising judicial power. “The Council is not a judge, nor has it been granted the judicial power,” the attorneys argue. “Rather, the Council is a distinct legal entity, created and empowered by the Constitution and the General Assembly, and exists separately from the judges that comprise it. The JQC has no power over the Council,” and its opinion as to the Council is unauthorized. The state Supreme Court determines who may file amicus briefs in its court. “It is not for the JQC or any other entity to usurp that authority,” the Council’s attorneys argue. “Consistent with its constitutional and statutory grants of power, the Council may file amicus briefs addressed to the administration of justice in the state courts. The JQC’s opinion finding otherwise therefore conflicts with Georgia law.” Individual judges or justices may also write amicus briefs but under more limited circumstances. Under the Code of Judicial Conduct, briefs by individual judges (1) must be limited to topics addressing the judiciary as a whole or the administration of justice; (2) must refrain from making arguments solely to support either party in the litigation; and (3) must not involve a pending case in which the judge’s own court could be involved at a later date. Therefore, the attorneys argue, the “JQC’s opinion as to individual judges is also incorrect.”

The JQC’s attorneys argue that because the Council of State Court Judges is made up almost exclusively of state court judges, it must consider the Code of Judicial Conduct as interpreted and applied by the JQC. And Opinion No. 241 is a correct application of the Code of Judicial Conduct, they argue. The JQC has never taken the position that it can “regulate” the Council. Instead, Opinion No. 241 applies to judges and those who perform judicial functions. “Allowing a group of judges, like the Council, to submit amicus briefs in pending cases when an individual judge could not is allowing a judge to indirectly do something that she cannot do directly.” The Code of Judicial Conduct requires judges “to avoid not just impropriety, but the appearance of impropriety in their activities.” “Here, the Commission determined in its best judgment that the filing of an amicus brief – regardless of whether filed by an individual judge or a group made up of judges – calls into question the judiciary’s impartiality.” And an “impartial judiciary trumps the filing of amicus briefs in pending litigation.” The rule the JQC adopted in Opinion No. 241 “properly balances two critical, if competing, interests: judicial integrity and impartiality outweighing the Council’s interest in submitting amicus briefs to aid in the ‘administration of justice,’” the JQC’s attorneys argue. They conclude saying that, “The Commission does not profess infallibility. But that is why the opinions it issues are advisory and not binding. And, as a further check, this Court has the opportunity to request the Commission to reconsider an advisory opinion under Rule 22 (b). It does not, however, have the power to write its own advisory opinion. Thus, the Commission asks this Court to dismiss this proceeding and either allow Opinion No. 241 to stand – as guidance and not law – or to request the Commission to reconsider Opinion No. 241.”

Attorneys for Council of State Court Judges: Michael Terry, Jeremy Farris

Attorneys for JQC: Norman Fletcher, Lee Carter

IN RE: JUDICIAL QUALIFICATIONS COMMISSION’S FORMAL ADVISORY OPINION NO. 239 (S15Z1633)

            The Council of State Court Judges is also asking the Georgia Supreme Court to revise the JQC’s Formal Advisory Opinion No. 239, which prohibits judges from excluding certain groups, such as children, from court proceedings without justifying in writing why they are doing so.

FACTS: The JQC issued Advisory Opinion No. 239 in August 2013 in the wake of complaints about court closures around the state. The JQC says that some complaints involved court staff or sheriffs’ deputies excluding the public or asking people to state their business prior to being allowed to enter a courtroom. Other complaints involved signs on courtroom doors such as “no children,” “attorneys and defendants only,” or “no guests or family permitted.”

“All of the above practices are, generally, improper,” Opinion No. 239 says. “We recognize, however, the authority of the judge to maintain the integrity and decorum of the courtroom, and in no way expect a judge to permit loud or unruly children or adults to disrupt court proceedings. Yet the law requires that such disruptions to public proceedings be dealt with on a case-by-case basis.” Judges who do not adhere to the open courtroom principles laid out in the U.S. Supreme Court’s 2010 decision in Presley v. Georgia “may be in violation of the Code of Judicial Conduct, as well as the Constitution of the United States and the Constitution of the State of Georgia,” Opinion No. 239 states. “In general, there are rare circumstances when court proceedings may legally occur outside the presence of the public.” When they do occur, “the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced [if the hearing remains open], the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure,” the JQC opinion says, citing the U.S Supreme Court’s 1984 decision in Waller v. Georgia. Those requirements are called the “Waller standard.”

In July 2015, the Council of State Court Judges wrote a letter to the JQC asking it to revise Opinion No. 239 regarding minor children, inquiries from court personnel about the purpose of a person’s visit, and partial court closures in general. When the JQC did not revise its opinion, the Council asked the state Supreme Court to review the JQC’s Formal Advisory Opinion No. 239. The high court agreed to consider the case to determine whether the law is “clear and settled” that a trial court may not: (1) exclude from court all children under a certain age; (2) allow court personnel to demand that members of the public “state their business” before being permitted into the courtroom; and (3) deny people arriving late from coming into the courtroom during key stages of the proceedings, such as closing arguments.

ARGUMENTS (Opinion No. 239): Clearly, allowing the public to witness court proceedings “is a fundamental part of our judicial system,” the Council’s attorney argues. But the law is “unclear and unsettled to what extent this mandate is violated” by instances that Georgia judges face daily, such as when a judge excludes children to protect them from hearing salacious testimony, or when a judge’s bailiff asks persons entering a domestic violence hearing whether they are complainants or respondents so the alleged victims may be separated from the possible perpetrators. The JQC has exceeded its authority with this advisory opinion by mandating judges to follow the strict Waller standard and face possible ethical charges if they fail to do so. “No court with the authority to make binding law in Georgia has ever required this procedure for the exclusion of minors, statements of inquiry by courtroom personnel, and delayed admittance to late arrivals,” the attorney argues in briefs. “Further, there is ample persuasive authority demonstrating the Waller standard does not apply to the exclusion of minors, inquiry by court personnel, and delayed admission to late arrivals.” The state Constitution has not vested the JQC with “judicial power,” the Council’s attorney argues. The JQC “is not a court and possesses no power to interpret constitutional ambiguities or to compel judges to conform their conduct to any such interpretation.” The law must be “clear and settled” before a judge’s failure to follow a standard may constitute an ethics violation. But the “constitutional requirements of temporary or partial court closures are unclear and unsettled areas of the law that are subject to various interpretations,” the attorney argues, pointing out that no U.S. Supreme Court case applies Waller to a partial closure. “Accordingly, this case is more about the authority of the JQC than it is about open courtrooms.” The attorney argues that the Council “does not advocate for or support the use of policies or signs that systematically exclude individuals from the courtroom, nor does it dispute the JQC received a rash of complaints about questionable conduct concerning the closure of courtrooms.” However, Opinion No. 239 “left many judges feeling uncertain about how its broad pronouncements squared with judicial discretion to maintain decorum and traditional practices, such as preventing entry to and exit from the courtroom during a charge to the jury,” the attorney argues. “The ramifications of the opinion’s ambiguities are magnified since the consequence of misinterpretation could lead to judicial discipline.” “While the public’s right to open courts is important, it has ‘never been viewed as imposing a rigid, inflexible straitjacket on the courts,’” the Council’s attorney argues. “‘It has uniformly been held to be subject to the inherent power of the court to preserve order and decorum in the courtroom, to protect the rights of parties and witnesses, and generally to further the administration of justice.’ Accordingly, Opinion No. 239 should be revised not just for the benefit of Georgia’s judges but also for the sake of the public, which has an interest not only in access for the casual observer, but also in the safe and efficient operation of court proceedings.”

Attorneys for the JQC reiterate that the state Supreme Court does not have the authority to review and revise Opinion No. 239. If this Court believes the JQC has erred, it should exercise its “limited ability under JQC Rule 22 (b)” to ask the JQC to reconsider its advisory opinion, but the high court should not issue its own opinion on the matter. “Otherwise, this Court risks usurping the Judicial Qualifications Commission’s role of receiving input and concerns from judges across the state on judicial conduct – the exclusive province of the Commission,” the attorneys argue in briefs. Advisory opinions – and the JQC has only issued eight in the last 15 years – are intended to give judges a “proper interpretation of the Code of Judicial Conduct.” And that’s what Opinion No. 239 does. In response to complaints, the JQC investigated and discovered various practices that appeared contrary to the U.S. Supreme Court’s rulings in Presley and Waller. “And if a specific act is truly contrary to established law, it exposes that judge to potential discipline” under the Code of Judicial Conduct. This advisory opinion addresses a question of constitutional importance: open courtrooms, the attorneys argue. “This is a right protected by the First and Sixth Amendments to the U.S. Constitution.” Quoting Presley and Waller, “there are exceptions to this general rule” that courtrooms remain open, but such “circumstances will be rare…and the balance of interests must be struck with special care,” the JQC’s attorneys argue. “Through Advisory Opinion No. 239, the Commission is simply reminding judges that they should consider Presley and Waller before adopting any sort of policy that…excludes individuals from a courtroom. An efficient and orderly courtroom cannot override the First and Sixth Amendments to the U.S. Constitution.”

Attorney for Council of State Court Judges: Nathan Gaffney

Attorneys for JQC: Norman Fletcher, Lee Carter

2:00 P.M. Session

GEORGIACARRY.ORG, INC., ET AL. V. JAMES (S15A1901)

            A man and a gun rights organization are appealing a Richmond County Superior Court judge’s ruling against their lawsuit to compel a probate judge to issue the man a temporary gun license. They are also appealing the judge’s refusal to recuse himself, arguing that all Richmond County judges should be prohibited from ruling in a case involving one of their own.

FACTS: On Jan. 6, 2014, Iziah Smith applied for a five-year renewal of his Georgia “weapons carry license.” His current gun license had fewer than 90 days remaining before it expired. Staff for Probate Court Judge Harry B. James, III refused to issue a temporary renewal of Smith’s license. According to the brief filed by the attorney for Smith and GeorgiaCarry.Org, Judge James’ office had not issued anyone a temporary renewal gun license for more than 10 years. If applicants asked, James’ office staff informed them that their office did not issue temporaries, according to Smith’s attorney. On Jan. 13, 2014, the attorney for Smith and GeorgiaCarry.Org wrote a letter to Judge James, pointing out that Georgia law required the issuance of temporary licenses unless the applicant was for some reason ineligible. Specifically, Georgia Code § 16-11-129 (i) states that, “Any person who holds a weapons carry license under this Code section may, at the time he or she applies for a renewal of the license, also apply for a temporary renewal license if less than 90 days remain before expiration of the license he or she then holds….Unless the judge of the probate court knows or is made aware of any fact which would make the applicant ineligible for a five-year renewal license, the judge shall at the time of application issue a temporary renewal license to the applicant.” The same statute says: “When an eligible applicant fails to receive a license, temporary renewal license, or renewal license within the time period required by this Code section and the application or request has been properly filed, the applicant may bring an action in mandamus or other legal proceeding in order to obtain a license, temporary renewal license, or renewal license….If such applicant is the prevailing party, he or she shall be entitled to recover his or her costs in such action, including reasonable attorney’s fees.” (“Mandamus” is a legal remedy that is used to force a public official to perform a required duty.)

On Feb. 18, 2014, Smith and GeorgiaCarry.Org filed a lawsuit against Probate Judge James, seeking a “writ of mandamus,” arguing that under Georgia law, they were entitled to temporary gun licenses and the judge was wrong to refuse to issue them. The case was assigned to Superior Court Judge Carl Brown. On April 24, 2014, Smith and the gun rights organization filed a motion asking Judge Brown to recuse himself on the grounds that a Superior Court judge in Richmond County should not sit in judgment of a Richmond County Probate Court judge. In May 2014, Judge Brown denied their motion for recusal. In November and December, 2014, both sides filed motions seeking “summary judgment,” which a judge grants if he/she decides a jury trial is unnecessary because the facts are undisputed and the law falls squarely on one side or the other. In their motion, Smith and the gun rights organization argued they were entitled under the law to have the legal fees covered. In his motion, the probate judge argued the case was moot because by then, Smith already had his license. Following a hearing, in March 2015, Judge Brown ruled in favor of Judge James and denied summary judgment to the others. Smith and GeorgiaCarry.Org now appeal to the state Supreme Court.

ARGUMENTS: The attorney for Smith and the gun rights organization argues that Judge Brown should have recused himself. In its 2003 decision in Smith v. Guest Pond Club, Inc., the Georgia Supreme Court quoted a Judicial Qualifications Commission opinion, stating that even absent a showing of actual bias or unfairness on the part of the judge, “that it is inappropriate for any trial court judge to preside in any action wherein one of the parties holds a judicial office on the same or any other court which sits in the same circuit.” In another decision in 2008, the Georgia Court of Appeals pointed out in Wilson v. McNeely that the Code of Judicial Conduct “mandates that judges avoid not only the impropriety, but that they avoid even the appearance of impropriety.” While Smith had no specific reason to believe that Judge Brown could not be impartial, “the holdings in Smith and Wilson indicate that, despite the foregoing, all Augusta Judicial Circuit judges must be recused from this case, and any orders they enter…are void,” the attorney argues. The trial court also erred in denying summary judgment to Smith and GeorgiaCarry.Org based on Georgia Code § 16-11-129 (i), which entitled Smith to a temporary gun license given that he was eligible for a 5-year license. Furthermore, he was entitled to recover attorney’s fees under the law. The General Assembly, “has created a private right of action to remedy failure to issue temporary renewal of Georgia weapons licenses,” the attorney argues. “Smith was entitled to one, had a clear legal right to one, and James failed to issue him one. Smith therefore was vested with authority to commence this action. And GeorgiaCarry.Org, Inc., of which Smith is a member, was entitled on behalf of its other members living in Richmond County to bring an action to see to it that James followed the statutory requirement to issue temporaries.” Smith and the organization are also entitled to recover legal expenses, and the court erred by denying them. The General Assembly, “specifically authorized attorney’s fees in these mandamus cases against probate judges,” their attorney argues. Finally, the trial court erred in granting summary judgment to Judge James “without explanation or analysis, either orally or in writing.” Following a hearing on the parties’ motions for summary judgment, where their attorney “arrived a few minutes late,” Judge James urged the trial judge to rule in his favor based on the attorney’s failure to appear. The trial judge orally granted the motion and in its written order, rather than addressing the merits, said only that he found no sufficient reason for the attorney’s “absence” from the hearing on the summary judgment motions. Yet, the attorney did make arguments that day to the judge, “so it is difficult to describe the situation as an ‘absence,’” the attorney for Smith and GeorgiaCarry.Org argues. “In granting a motion for summary judgment, the trial court must somehow indicate it has considered the parties’ arguments and evidence.”

The attorney for Probate Judge James argues that the judge never had a policy of refusing to issue temporary gun licenses; it’s just no one had applied for one since 1999 until Smith applied in 2014. At the time he made his application, the county’s marriage license clerk, who had only worked for the Richmond County Probate Court for three or four months, waited on Smith and told Smith “that they did not issue temporary licenses,” according to James’ attorney. Following that exchange, Smith “harassed” the court’s employees by calling numerous clerks repeatedly and returning to the court office twice that day. “Smith is not even sure of whether he is an actual resident of the state of South Carolina or the state of Georgia,” the attorney says. More importantly, Judge James informed Smith that he could not have a temporary license because there were problems with his criminal record. Smith had been charged in Columbia County with sexual battery, but the court’s record did not reflect the final disposition. Once the record reflected that Smith’s charges had been reduced to simple battery, the probate court issued him a gun license on Jan. 27, 2014. Significantly, Smith already had his gun license when he and GeorgiaCarry.Org filed their lawsuit on Feb. 18, 2014. Judge Carl Brown did not err in not recusing himself, James’ attorney argues. Smith did not meet the three-pronged test the state Supreme Court established in Mayor & Aldermen of Savannah v. Batson-Cook Co. (2012) for determining whether another judge should be assigned to hear a recusal motion. In such cases, a trial court must determine whether the motion was filed in time, the affidavit was legally sufficient, and recusal was warranted based on the facts. Here, Smith missed the filing deadline, failed to file an affidavit with his motion, and conceded there was no evidence of impartiality by the judge. The key reasoning behind the recusal rule is derived from “whether a reasonable mind might have perceived a conflict of interest in the performance of his official duties,” Judge James’ attorney argues. Finally, it was not error to grant summary judgment to the judge. In its findings, the trial court indicated that Smith’s attorney failed to appear at the hearing on time and therefore waived his opportunity to be heard. Furthermore, Smith’s request for a writ of mandamus was moot, as Smith had received his gun license “prior to his previous license expiring, prior to his filing of suit against James, and within 30 days of his application for his license,” the attorney argues. Also GeorgiaCarry.org was not even an applicant for the license, as Smith was, and therefore lacked standing to bring a mandamus action against James. Smith and the organization are also wrong that they are entitled to attorney’s fees. James stated that his court “never had a policy of not issuing temporary licenses.” Rather, no one had asked for a temporary gun license except Smith since he had been probate judge. “The issue was Smith’s criminal record and whether he was qualified for a temporary license,” James’ attorney argues. “When it was determined that he qualified, a license was issued to him, without the necessity of his filing suit in mandamus.”

Attorney for Appellants (Smith): John Monroe

Attorney for Appellee (James): Robert Hunter, III

CRAYTON V. THE STATE (S15A1506)

            A man is appealing his murder conviction and sentence of life in prison without the possibility of parole for shooting and killing a man in DeKalb County during an argument.

FACTS: According to the facts at trial, on April 4, 2011 Antwuan “Tweezy” Crayton was speeding down Selwyn Drive in his green truck while Curtis Mack, III, known as “Fat,” was throwing a football in the street with a 4-year-old boy while hanging out with a couple of friends. Mack and Crayton did not know each other. When Mack and the others saw the truck barreling down the street, they quickly got out of the way. Mack briefly confronted Crayton, who stopped and told him he shouldn’t have been in the road. Crayton then drove away. Following the incident, Ricardo Lewis, one of Mack’s friends, walked over to the Citgo station nearby where he ran into Crayton. Crayton told Lewis to tell Mack and the others, “they want beef, bring it to the street because I’m going to bury one of them.” Lewis walked back and told Mack what Crayton had said. Soon Crayton reappeared on Selwyn Drive in his green truck and parked without getting out. Mack walked up to the truck, asking Crayton if he had any children and when Crayton said yes, Mack brought up the speeding incident earlier that day and the fact that children were present. The two began arguing, and Mack told Crayton to get out of the truck, but Crayton did not. Witnesses testified they then heard Mack say to Crayton, “what are you reaching for,” before hearing gunshots. Crayton testified in his own defense that Mack was banging on his truck and when he saw Mack reach for a pistol in his waistband, Crayton thought Mack was about to shoot him. Crayton then grabbed his semiautomatic handgun and said he shot at Mack in self-defense. Witnesses said Mack ran up a hill and collapsed, while Crayton drove away. Mack, 27, was found by the first responding officer at around 9:30 that night, lying on his back. He was taken to Grady hospital but died from three gunshot wounds to his back, chest and stomach. Witnesses said Mack was unarmed, and no gun was recovered near his body. Eight days later, Crayton turned himself in, gave a statement, and was arrested and eventually indicted on charges of malice murder, felony murder, aggravated assault, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. Following a three-day trial in 2013, Crayton was convicted of all the charges except malice murder. Instead of malice murder, the jury convicted him of the less serious offense of voluntary manslaughter. The judge sentenced him to life without parole plus 25 years. Crayton now appeals to the state Supreme Court.

ARGUMENTS: Crayton’s attorneys argue that nine errors were made at Crayton’s trial, including the State’s failure to disprove that Crayton had shot Mack in self-defense. “The trial evidence presented one undisputed fact: Curtis Mack, the deceased, was the unprovoked aggressor who violently assaulted Crayton who was sitting in his truck, minding his own business,” Crayton’s attorneys argue in briefs. “Two State’s witnesses testified Mack repeatedly pounded his hands on Crayton’s truck and grabbed the door handle in a deliberate attempt to get into Crayton’s truck or pull him out of the vehicle….When Mack came dangerously close to Crayton – within one foot – with one hand reaching for his pistol and the other hand yanking on the driver’s side door handle, Crayton reacted defensively because he was ‘scared for his life’ and reached for the gun in his car, shooting at Mack.” Crayton is entitled to be acquitted of the charge because the State failed to meet its burden of proof. “Where, as here, the evidence raised the affirmative defenses of self-defense (Georgia Code § 16-3-21) and defense of habitation (Georgia Code § 16-3-23), the State had the evidentiary burden to disprove these defenses beyond a reasonable doubt,” the attorneys argue. “In other words, if a rational trier of fact could have found that Appellant’s [i.e. Crayton’s] conduct was justified under self-defense or defense of habitation, the State failed to discharge its heavy burden of disproving Appellant’s affirmative defenses beyond a reasonable doubt.” The trial court also erred for failing to correct the prosecutor’s opening statement, Crayton’s attorneys argue. The prosecutor stated: “Him being a convicted felon, having a gun and using that gun to kill somebody, regardless of the circumstances, that is felony murder itself.” That is an incorrect statement of law, yet Crayton’s attorney did not object, request a mistrial, or ask the judge to correct the statement or admonish the prosecutor. Nor did the judge take any corrective action on her own. “The trial court had a duty to immediately correct the misleading statement of law as it was clearly erroneous, seriously affected the fairness of the trial, completely negated the Appellant’s authorized statutory defenses, certainly was not harmless error and likely affected the outcome at trial,” the attorneys argue. The attorneys also argue that the failure of the defense attorney to object to the prosecutor’s opening statement constituted “ineffective assistance of counsel” in violation of Crayton’s constitutional rights. Among other errors, the attorneys also argue the trial court erred by admitting Crayton’s two prior convictions for possession of a firearm by a convicted felon and for admitting photographs showing Crayton in possession of guns, money and cocaine, which improperly placed his character at issue and were highly prejudicial against him.

The State disputes all of Crayton’s arguments, stating that the evidence was sufficient to disprove Crayton’s theory of self-defense. “Here, there were several eye witnesses who testified that Appellant had a gun, that the victim did not have a gun, and that Appellant shot the victim multiple times,” the State argues in briefs. Furthermore, the medical examiner testified that “one of the shots was to the victim’s back which would not support either of Appellant’s affirmative defenses.” The prosecutor’s opening statement was proper, the State contends. “Appellant has taken the statement, ‘regardless of the circumstances,’ to assert that this statement in isolation appears to suggest that Appellant could be convicted of felony murder without regard to his defenses,” the State argues. “However, the remainder of the prosecutor’s opening statement addresses self-defense.” The prosecutor went on to say that, “you cannot defend yourself if you are a convicted felon and you provoke other people so you can use a gun.” In addition, Crayton’s attorney in his opening statement countered, “Even if you’re a convicted felon you have a right to defend yourself.” The trial attorney did not provide ineffective assistance of counsel by not objecting to the prosecutor’s statement, and Crayton has failed to meet his burden in proving that he did. A veteran criminal defense lawyer, Crayton’s trial attorney chose not to object so he could address the issue in his own opening statement. The State also contends the trial court did not err in admitting Crayton’s 2004 and 2007 convictions for possession of a firearm by a convicted felon because the evidence was properly offered to show “intent” in committing the shooting for which he was recently charged. Similarly, the photographs admitted in the case were relevant. “The trial court did not abuse its discretion in admitting the evidence and in its finding that the probative value outweighed any prejudicial effect,” the State argues.

Attorneys for Appellant (Crayton): Frances Kuo, Stephen Maples

Attorneys for Appellee (State): Robert James, District Attorney, Deborah Wellborn, Asst. D.A., Samuel Olens, Attorney General, Beth Burton, Dep. A.G., Paula Smith, Sr. Asst. A.G., Elizabeth Haase, Asst. A.G.