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.
March 23, 2020 at 10:03 AM
7 minute read
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.
"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," Moore said of the decision by three of the justices not to recuse. "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.
Jonathan Ringel contributed to this article.
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