Re-typed text of transcript, originally prepared by Pamela D. Mutuku, CCR, Cobb County Superior Court:

Clerical errors in the transcript are noted in brackets [ ]. 

All spellings of "judgement" have been changed to "judgment." 

Transcript of motion proceedings held before the Honorable Rufe McCombs, Judge, in the Superior Court of Cobb county, 30 Waddell Street, Marietta, Georgia, taken before Pamela D. Mutuku, Georgia Certified Court Reporter on Tuesday, February 20, 2001, commencing at the hour of 9:30 a.m.

APPEARANCES OF COUNSEL:

For the Plaintiff: Pro se'

For the Defendants: Ms. Kathryn L. Allen, Senior Assistant Attorney General

PROCEEDINGS

Ms. Allen: Your Honor, I think we're here today on my clients' motion to dismiss.

I represent the Superior Court Judges George Kreeger, Robert Flournoy, Jr., Dorothy Robinson, S. Lark Ingram, James G. Bodiford, and Michael Stoddard.

Ms. -- As you know Mrs. Portman has sued these judges along with several other defendants in what I'm going to call a collateral attack on her divorce judgment. It, of course, is not the only case in which Mrs. Portman has contested that divorce judgment.

The most recent case from point of view of time is the case in which she sued Judge Ingram in mandamus attempting to get Judge Ingram to reduce her oral writing -- her oral order to writing.

Judge Ingram had done, as is the usual practice, asked Mrs. Portman to write the order, she ruled in Ms. Portman's favor.

She asked Mrs. Portman to prepare the order and Mrs. Portman didn't want to do that. So she sued Judge Ingram in mandamus seeking to get her to prepare the order.

Judge Bodiford heard that case. He attempted to resolve it by preparing the order himself. That order was then appealed by Mrs. Portman to the Supreme Court where Judge Bodiford's order dismissing the mandamus was affirmed.

Now, she has sued Judge Ingram and Judge Bodiford arising out of that set of facts.

As you probably know, Your Honor, it's very, very, very rare to ever get any remedy against a judge. Our judicial system is not set up to collaterally attack a judgment that you don't like by suing the Judge and that's what Mrs. Portman has done. And she's sued many judges in Cobb County Superior Court.

The rare exceptions when you could get a judgment against it or a remedy against a judge would be when the Judge acts in his or her administrative capacity as an employer, say secretary or a clerk or in that case perhaps violated some Federal law about employment or some state law about employment, then you could get a remedy against the Judge.

The other very rare exception would be if you could get an injunction against the judge. If the judge were, for instance, holding somebody unconstitutionally in jail and that was the case of Pulliam vs. Allen that came out of the United States Supreme Court.

Other than that, there's some general principles that prevent this kind of suit that Mrs. Portman has brought.

The first general principle is judicial immunity and that goes to damages. Now, I understand -- I don't believe Mrs. Portman is asking for damages in this case, but just in case she is, we're asserting judicial immunity.

Judicial immunity is very, very very broad, in that it says if the judge is acting in a judicial capacity and is not acting in the clear absence of all jurisdiction over the subject matter, then the suit must be dismissed, the suit for damages.

Now, for the remedies of mandamus and declaratory judgment, the case just passed and the case we have here today there's a series of cases that I've cited, some in my brief that deal with this and they say you may not reverse or attack a judge's judicial decision by way of mandamus or declaratory relief. This is not the way you do it. You appeal.

And again, I cited the cases in my brief. I think there is one case that's a very recent one from the Georgia Supreme Court, that I have a copy for you, it was a mandamus case. The name of it is Banks vs. Benham. And I put a little marker on the place that I want to rely on.

That was a case where the Supreme Court itself was sued in mandamus in Fulton Superior Court, so it was then heard by a panel of Superior Court judges acting for the Superior Court members who recused themselves.

And this says, mandamus is available only if there is no other specific legal remedy. Where there is a right of judicial review of the act of a judicial officer, mandamus is not an available remedy to require him to perform his judicial function in a manner different from the way he has performed it.

And it really doesn't matter whether those judicial decisions were right or wrong.

And they go on to say this here. Their decisions may be legally sound or woefully weak. They may be based on soundly reasonable case law or poorly through out decisions. Whatever the method by which these decisions were reached and conveyed, they were in each and every sense judicial decisions not subject to challenge by an action for mandamus.

And that's what we have in this case. These are all judicial decisions, Your Honor. They are decisions that different superior courts made about either recusing themselves or not recusing themselves about entering the action for divorce and they are not subject to collateral attack by suing the judges.

And I also rely for this kind of case, the declaratory judgment case, I rely upon a case that you heard about before in these hearings and that's Peoples Industry vs. Parker Hanfen Corporation.

This was cited by Mr. McNally, the lawyer for Mr. Kidd. And it was cited in 1989, 189 Ga. App. 857.

And it says, quite flatly, the declaratory judgment act of this state is not intended to be used to set aside, modify, or interpret judicial decrees or judgment of courts having jurisdiction of the subject matter and parties.

And I think that's important to notice here having jurisdiction of the subject matter and parties.

Now, I've heard Mrs. Portman argue that the initial divorce decree in this matter was void. And she claims it was void because she had been employed by Judge Flournoy's son and she thought that -- and she was fired by Judge Flournoy's son. And she thought that would prejudice the judge against her.

So she's using that fact to characterize that judgment as void. That is an incorrect statement and application of the law.

First of all, there's no allegation that she filed a motion for recusal, which she should have done were that a problem.

Secondly, the question of whether the judge might have been disqualified is not a jurisdictional matter. And I will cite you to several cases for that proposition.

One of them that deals with recusal is Kirkland vs. Kirkland. You can find that at 146 Ga. 347. And this was a situation in which the judge had voluntarily recused himself on the ground that he had a relative involved in the subject matter of a case.

After that recusal, something happened so that there was no longer any, say -- let's call it an appearance of impropriety and he again was presiding over the case.

And the Supreme Court of Georgia said this did not affect the qualification or jurisdiction of the first judge finally to preside in the case.

But more importantly, when you talk about a void judgment, that has been narrowly construed to mean a judgment in which the court has no subject matter jurisdiction or no personal jurisdiction over the parties.

And for that premise, I have a case and I will give you a copy of it -- actually I have two cases, Marshall vs. Marshall and Murphy vs. Murphy. (Handing)

(Judge examining documents)

Marshall vs. Marshall is found at 257 GA. 494, it was decided in 1987. And this was where -- actually there was no personal jurisdiction over one of the parties.

And the contention was made that the judgment of divorce was void for lack of jurisdiction. However, the Court said, however that may have been, there are some circumstances that overcome that void judgment. And one of the circumstances is the actions of the person who's claiming that the judgment is void. And if there is no clear and compelling reason why that person should not have complained by direct appeal at the time when the judgment was entered, then they can't now claim that the judgment was void.

And the Court's interest in this, the public policy that the Court was explaining here was that you have to have finality sometimes. You've got to come to the end of the road on litigation issues. And the Court is enunciating a policy in favor of finality.

But actually, Murphy vs. Murphy ways that if you're going -- the difference between a void judgment and a voidable judgment is that a void judgment is where there's no jurisdiction of the subject matter of the parties. There is a non-amendable defect appearing on the fact of the record or the pleadings.

In this case, there is no question but what Superior Court judges have jurisdiction over divorce cases. So there was subject matter jurisdiction.

In this case, there is no contention that there was no jurisdiction, no personal jurisdiction over either of the parties. So it's not a void judgment.

Even if it were a void judgment, you cannot sue the judge to reverse the judge's judicial decision. You do that by appeal, or in the proper case, you do it on a motion to set aside a voidable judgment.

But you do not name the judge as the party. You name the original party that was in the lawsuit that you were litigating against to begin with.

I'll save whatever time I have for rebuttal, Your Honor.

The Court: All right. You have unlimited time I think.

Ms. Allen: Thank you, ma'am.

The Court: All right. Both parties do.

Mrs. Portman?

Mrs. Portman: Okay. First, I would like to present a background and then address the defenses claimed in this motion.

Last Friday, I learned a lot. One of the things I learned was that your life is chronicle to [should be "chronicled in"] Benched, published in 1997, that afternoon I tried in vain to purchase a copy but I settled for getting a copy from the public library just down the street from here.

I have to admit that I haven't finished it yet. I'm only on page 135. I would have finished it if I hadn't needed to prepare for this hearing. And I'll finish it this evening when these hearings are over.

Please, I hope you don't think my intention is to curry any favors by bringing up this matter, rather I think you may find just the opposite for I intend to challenge you with your own book. I want to level the playing ground with your own words.

Why do I bring up this -- bring this up at the motions hearing? Certainly not to present evidence and risk a summary judgment for I've been very clear about my intent in that regard. But I no have a window into your world, something I didn't have before any of the previous hearings.

For weeks I questioned my own responses in that first hearing, why I yielded to your insistence to take this case, even when Georgia Code actually prescribes another path to the assignment of a judge, a path that any judge should have reasonably known.

I reason that I had acted on an instinct or maybe even habit or maybe because you remind me of someone in my family. And I had the feeling I could trust you. I know now that the reasons were simply not to be revealed yet.

Surely you recognize that the open honesty you share in your book about beliefs and values has faded in our society. Separation of church and state has now become the current standard.

Being a judge, few people would question your right to be vocal on such issues. But knowing the law, you surely recognize how non-committal I'm expected to be in my profession. If I choose to teach my faith it must be only by example, since I teach in public schools.

In your book you state that you decided your life's mission when you were 5 years old, yet you acknowledge that his hand has been ever present in your life. I won't presume to ask, but I believe that you knew you were in the palm of his hand even when you were in Alto or Indianapolis.

You and I have never met before but our paths have crossed several times. Indianapolis is one of those crossing points unpleasant in your memories, sweet in mine.

Please, humor me for a few moments for I intend to show you how this is all relevant in this hearing.

Our paths crossed again, Washington, D.C. in the Department of Agriculture. On page 98 and 99, speaking of your experience there, you state, but I remained frustrated with the bureaucratic system that masked justice behind appointed judges and juries of their own choosing.

I suggest that you now -- I suggest to you now that similar bureaucratic systems can and do exist in our own backyards. We must be ever mindful of those people and things that are not as they appear.

Why does lady justice wear a blindfold? I always understood that symbolism to mean that she must weigh the evidence without using her own vision or prior knowledge. But just as the blind can be led in the wrong direction, lady justice can be led astray. It may be very difficult to deceive justice but the surest and simplest way is through dishonest trust. Sometimes they are friends who betray us, but what is new about that concept. [Should be a question, as "concept?"] Thirty pieces of silver could easily be something else in value in today's world.

I haven't just seen the evidence of yet another Rob Welch. I lived more than five years of my life having to watch my Rob Welch continue to abuse the system. I simply want the opportunity to bring it not to Judge Land's attention but for Judge McCombs' inspection. I wouldn't get that opportunity if you dismiss each of the defendant parties in this civil action.

I believe that it is now evident that all parties are expected to be dismissed. If there are no defendants, there is no case. If there is no case, there is no appeal. The appellate court will find it easy to look the other way and issue another Rule 59, end of case.

Something else that I learned from your book. I have two working eyes where you only have one, yet in several ways your vision is stronger than mine. You have a generation more of experience but more importantly you've seen the inside of the justice system. And just about anything is more complex and more revealing when seen from that perspective.

You say on page 32 that you don't believe that our encounters are random ones. From your perspective, the 1978 elevator encounter must have been planned by someone who knew far more about what was going on in that municipal court.

I challenge you to at least consider that someone has a hand in these proceedings here today.

When you presided over the January hearing, you challenged me to show you why you should be disqualified. But the law actually challenges every judge to evidence why he or she should not be disqualified every single time he or she begins a case.

The law specifically prescribes a duty and how to proceed when a judge knows of some reason that he should offer his recusal. Am I suggesting that you've been dishonest in any way, no I have not. But I do believe that you know that it is a judge's duty to disclose any facts that might be grounds for recusal.

The litigants have rights, not duties when it comes to challenging judges. Judges have rights but only after they have met their duties. I'm not a trained attorney and unlike you I have never relished the opportunity to argue a case.

The required debate class in high school caused me any sleepless --

The Court: Mrs. Portman, I can sit here and listen to you all day, but I think we're imposing on the other people for you to review my book. And I would like for you to get into your legal argument. And you may take the book up any way you want to but I --

Mrs. Portman: I believe I have no other comments about your book.

The Court: -- I think it is most unfair to the opposite party that they have to listen to --

Mrs. Portman: I do have one comment but I will -- I will omit it at your request.

The Court: Thank you. Now, let's argue the case.

Mrs. Portman: Okay. I'm attempting to do that.

The Court: Well, I thought you were reviewing my book. Go ahead.

Mrs. Portman: I'm --

The Court: What are you -- I need some argument. You unfortunately have got to be a lawyer here today to tell me the reason why I should grant, not grant their motion, legal reasons based on case law or statute.

Mrs. Portman: I intend to do that, Your Honor. I thought I had prefaced my comments that I wanted to prepare -- to make some general statements and background. I apologize if I've offended the Court.

The Court: You haven't offended me, not at all. I just think it's unfair to the other people that they listen to anything but what this case is about, not about my book. It has nothing to do with this case.

Mrs. Portman: Your Honor, I beg to differ with you on that, but I think your beliefs of what a judge --

The Court: I have to go by the law.

Mrs. Portman: I understand that.

The Court: For instance --

Mrs. Portman: And I --

The Court: -- anything that you bring up -- I mean, any defense to this motion I have got to either know or find out the law that applies to that and I can't go on any other way. It's just not possible for me -- you know, I got certain beliefs maybe you're referring to in the book but that's not my duty as a judge. My duty as a judge is to decide the law of the case and that's based on case law.

You give me -- If you give me some case law or statutes that apply in this case, that's what I need.

Mrs. Portman: Okay. I will attempt to do that, Your Honor.

The Court: What did you say?

Mrs. Portman: I will attempt to do that, Your Honor.

The Court: Thank you.

Mrs. Portman: Will you bear with me and if I begin to stray again, please stop me.

The Court: Yes. Don't go back to my book.

Mrs. Portman: I'm attempting --

The Court: I think it's wrong that I get free advertisement.

Mrs. Portman: I'm not trying to give you free advertisement.

The Court: All right.

Mrs. Portman: I will attempt to make changes as I go.

The Court: We got a motion here to dismiss.

Mrs. Portman: I understand that, Your Honor.

The Court: You have heard Ms. Allen's argument. If you've got any law that states otherwise, that's what I need to know.

Mrs. Portman: I do, Your Honor. I have some comments replying to her comments. I would like to --

The Court: All right. And if you could back it up with actual cases or the law.

Mrs. Portman: I will attempt to my best --

The Court: That would be very helpful.

Mrs. Portman: -- ability to do that.

The Court: That would be very helpful. And then if it's something I don't know, I can look up the case.

Mrs. Portman: And I do apologize but I didn't bring copies of cases with me today because we're in the world of the Internet where cases are at your fingertips not requiring copies. So I do apologize if that was an expectation.

The Court: I'm ready to hear your reply.

(Pause)

The Court: Would it make it any easier if I ask you to reply to the fact that the movant party said -- gave law that states that you can't attack a judgment by a mandamus or declaratory judgment?

Mrs. Portman: Yes. I will attempt to address that. And I will come back to my comments after I've satisfied --

The Court: I'm not trying to tell you how to do it. I'm just -- that's what I need to know is the law, if there's any law otherwise.

Mrs. Portman: Your Honor, Ms. Allen and I have been on other sides of the table, as she explained, when I brought a suit for mandamus against Judge Lark Ingram. I had no other option at my disposal because -- and I didn't cone prepared to relitigate that case, but Ms. Allen did make some erroneous statement that I would like to correct and allow you to at least look at the record.

Mandamus is the correct attack. It is the correct and only attack to -- and it's cited in the mandamus case to the Official Code of Georgia.

The Court: What is that citation? Do you have that?

Mrs. Portman: Yes, I do somewhere here, Your Honor.

Do you need it immediately or may I provide it when --

The Court: Go ahead but --

Mrs. Portman: -- a minute to find it.

The Court: -- but that's the ultimate thing I have to make my decision.

Mrs. Portman: It's in my opening statement in the mandamus case. And I'm sorry but I have not memorized the Official Code as I'm sure many attorneys have.

Ms. Allen is, I argue, incorrect that mandamus was the improper way. She claimed appeal was the proper method. I had no order from which to appeal. An order is not adjudication until it has been filed with the clerk, that is -- and I will be happy to find that code citation also.

The Court: I know you need an order to appeal.

Mrs. Portman: And -- But Ms. Allen kept saying that I should be barred from mandamus because I had the right of appeal. I did not have the right of appeal because an order did not exist.

The Court: But as I understood she said after that, that Judge Bodiford wrote an order out.

Am I correct on that?

(Ms. Allen nods head affirmatively)

Mrs. Portman: Judge Bodiford did write the order out.

The Court: So then you had an order.

Mrs. Portman: And Judge Ingram did sign it.

The Court: Um-hmm.

Mrs. Portman: My mandamus suit was brought that it would be filed by September 22nd within the 90 days required by the Official Code to be filed. And she said that she would do that. Judge Bodiford said he would write it, she said she would sign it. She did not sign it and file it until September 25th putting it outside the law. Days after she submitted that order she recused herself.

The Court: Well, that wouldn't affect your appealing that order.

Mrs. Portman: That order, in my understanding from attorneys, is that it was void because it was outside the 90 days.

The Court: Do you have a case on that?

Mrs. Portman: On its face, it did not meet the requirements of being filed within 90 days.

The Court: Do you have a case on that?

Mrs. Portman: On its face, it did not meet the requirement of being filed within 90 days.

The Court: Do you have a case on that?

Mrs. Portman: No, because I didn't come prepared to reargue the mandamus case, Your Honor.

The Court: You have come prepared to answer their argument, did you not?

Mrs. Portman: Yes, I did. I had -- I did not believe Ms. Allen would be rearguing the case of mandamus.

My comments in response to bringing that up are simply to point out the errors that I saw in Ms. Allen's argument.

The Court: Well, I'm not interested -- I'm interested in -- She has stated to me the law in mandamus may not -- you may not attack a judgment by a mandamus or declaratory judgment. And she cited some law on that.

Now, before I can say otherwise, I've got to see the law that says that you can attack a judgment by mandamus or declaratory judgment.

Mrs. Portman: Okay. Your Honor, I'm not here --

The Court: Let me ask Ms. Allen.

Am I correct that that's what you are saying here?

Ms. Allen: That was my argument, yes, Your Honor.

Mrs. Portman: I didn't --

The Court: I just --

Mrs. Portman: And I'm not here to argue I am attacking a valid judgment. I'm here to argue that it is a void judgment.

The Court: Well, if you're saying it is a void judgment, you're attacking the judgment. I don't know how else --

Mrs. Portman: Your Honor, case law in U.S. Court according to the supreme law of the land and applicable in all states cited by Valley vs. Northern Fire and Marine Insurance Company, 254 U.S. 348, 41 S. Ct. 116 (1920), see also Wayne Mutual Insurance Association McDonough, 204 U.S. 8, 27, S. Ct. 236 (1907), Williamson vs. Barry, 8, Howell (sic), 495, 540 -- I apologize if my citations are -- I haven't had the experience with the citation, Williamson vs. Barry 8, Howell, 495, 540, 12 LED, 1170, 1189 from 1850, Rosen Himely, 4 Krantz 241, 269, 2 LED 608, 617 from 1808.

Courts are constituted by authority and they cannot go beyond that power delegated to them. If they act beyond that authority and certainly in contravention of it, their judgments and orders are regarded as nullities. They're not voidable but simply void and even -- and this even prior to reversal.

The Court: Let me ask you to read me the part that says in there that you may attack a judgment by mandamus or declaratory judgment.

Mrs. Portman: Your Honor, we're back to the same issue of whether it is a judgment or whether it is a void order.

The Court: If it is an order, it is a judgment.

Go ahead.

Mrs. Portman: My argument is that the supreme law of the land --

The Court: I don't want to give you a hard time, but I do want you to understand where I'm coming from.

Mrs. Portman: I think I do. And I do feel a little inept but I'm -- I would like to continue to argue my case.

The Court: Certainly.

Mrs. Portman: Ms. Allen pointed out that judicial immunity is there for protection from damages. A complaint for declaratory judgment requires no relief in that respect. I haven't -- I haven't claimed damages that I expect from any of the judges.

If I may go back a minute. I made notes here. Ms. Allen said that the suit of mandamus was affirmed by the Supreme Court, the Supreme Court affirmed the ruling of the lower court pursuant to Rule 59. Rule 59 in used when they don't want to look at the merits of the case and they simply affirm the ruling of the lower court.

I think a review of the record would show --

The Court: You understand that I can't reverse a higher court?

Mrs. Portman: Your Honor, I apologize if I was inferring that you could.

The Court: I just wanted you to realize there's no way I can do that.

Mrs. Portman: I'm certainly not asking you to do that and I never thought you could.

The Court: No.

Mrs. Portman: I wrote a note here as Ms. Allen was talking. She said, I have that in my brief. And I apologize but to my recollection I have no copy of a brief from Ms. Allen. I have the answer.

The Court: I thought I had the answer, her motion and her brief in support of her motion.

Mrs. Portman: I apologize. I interpreted that to be a brief.

The Court: Is that the one you're talking about, Ms. Allen?

Ms. Allen: I'm talking about this one here (indicating).

Mrs. Portman: The brief with the answers.

Ms. Allen: (Handing)

That one. I served you with a copy.

Mrs. Portman: Okay. I'm sorry. I apologize.

Ms. Allen: You did get it.

Mrs. Portman: Yes, I did. I thought she was referring to the answers, Your Honor.

Ms. Allen alluded to my previous employment with Judge Flournoy's son who is now a Superior Court judge in Cobb County saying that I was fired from that position, Your Honor. I was fired from that position. I was told one day to pick up my things and leave. And I was told that it was because it was -- the real estate business was not adequate to support my being there.

However, when I filed for unemployment, the answer then was I didn't have the skills to be a legal secretary.

Of course, the Department of Labor affirmed in my appeal what the employer was saying, knowing that I had a right to appeal it further and that right to appeal was to take it to the Superior Court of my home county which was to his father's court.

At that time I would not have submitted a request for unemployment if I was in a position to hire an attorney to argue a case to get unemployment.

And I readily admit I'm the one who said it was not worth it, I would surely lose. I would like to think I've learned from my mistakes.

She argues that I have inferred that my employment alone is what prejudices the judge. That is incorrect. I do not claim that simply because I worked for his son that that causes prejudice and bias.

Am I off track?

The Court: I think you are. What we're dealing with here is the parties Ms. Allen represents, their motion to dismiss based on the law.

I want to give you every opportunity to state your case. I believe everybody should have a right to the court but you've got to -- you have to -- if you do that, you've got to assume the responsibility of stating the law to the court.

Mrs. Portman: Okay. I hope I'm understanding what you said but I'll move forward.

I've said before that no attorney would represent me. That's not completely true. Some attorneys would have taken my case. If I had the unlimited resources to pay hourly rates that were higher than my own daily rates, I could have subjected my teacher's salary to attorneys like Mr. Kidd, who after receiving over $9,000 wanted another $14,000 based on unsubstantiated invoices and that's after he capped it at 5,000 over the 9,000. They are out there, I know they are. But would these attorneys have worked as hard as I would have to shed light on what was wrong. I don't think so. Their lives weren't turned upside down.

Did I choose to take on this battle? No. And, in fact, the record in all the five years of litigation shows I chose to turn the other cheek at more than one occasion.

The Court: It doesn't matter why you're here. You're here. And you have a right to be here. But you've got a right to answer their motion. It doesn't really matter what the circumstances are that brought you here. You have a right to be here and you have a right to represent yourself.

Mrs. Portman: Okay.

The Court: And I'm going to allow you to do that as far as I can. but I need you to rebut what -- to answer what they have said and tell me some law that makes their statement inaccurate.

Mrs. Portman: Okay. I believe in the time that I have now taken to try to understand what you're telling me, I could have simply gone through what my prepared statement was.

And I do object to not being allowed to present my case as the best I know how to do it.

The Court: Well, you go ahead.

Mrs. Portman: I will leave out --

The Court: You go ahead and do whatever you want to do. And I'm just saying I have to have the law as opposed to why you're here.

Mrs. Portman: I begin by drawing my line when I filed for divorce after 23 years of marriage. At first, I did not claim a cause for I thought silence was better for my sons. But when my husband claimed mental cruelty and [should have been "that: instead of "and"] I failed to meet her personal needs and desires, I knew that I had to evidence the adultery.

He freely admitted to the affair that caused years of marital and family counseling from that he simply learned how to be more protective of his actions and secretive about his business.

The divorce was a bench decree signed only by my husband's attorney and Judge Flournoy. Even though I never requested the house and I had not even entered the house for more than a year, I was directed to move back and for my husband to move out. There seemed to be no reason for the split of assets, so I requested findings of fact and conclusions of law as Mr. Kidd acknowledged on Friday.

I intend to show letters at

[Page 40 is missing from the transcript]

More importantly, you need to know why I cannot and will not stop because this is now gone beyond the first and simple act of deception. It is beyond the second, the third, the fourth acts of deception.

I can show you on the record, if given the chance to present evidence, that there has been a conspiracy to make me go away.

The original wrong was a failure to apply duty when duty was required. The following actions were simply to avoid the consequences of that failure. And the court officers who participated in those actions committed yet further acts of deceit.

If done intentionally, I suggest that for the greater good of justice they face the consequences. If done unwittingly, it was no doubt through an abusive trust, again, probably without intent to harm, but it did harm.

I need to be heard by this court of justice. Please, don't dismiss these parties. I've learned that res ipsa loquitur -- and I apologize for the pronunciation -- If I'm incorrect [should be "correct"], means that the cause can be found in the control.

I've also learned that power corrupts and the absolute power corrupts absolutely. The power of a Superior Court judge is absolutely controlled from within the system.

I choose to respond to this motion not in the order of the defenses but in an almost reverse order. Please, allow me to consider each of the six defenses claimed and then to address the Defendants' prayers and finally to summarize.

Without a clear evaluation of each of the defenses, any dismissal is premature and unwarranted.

Defendants' answers to the numbered paragraphs of my complaint are apparently an answer in unison. I would like to review the answers to the individual paragraphs in the complaint.

The [should be "To the"] first 23 paragraphs of my complaint the answer is the same. Paragraph of the complaint -- and, Your Honor, I have a copy for you --

(Handing)

(The Court examining document)

Mrs. Portman: -- paragraph of the complaint is denied to the extend it conflicts with the official records of Civil Action No. 941524322, 961037324, 961224322, 98161333, and 991034324 in the Superior Court of Cobb County and the other official records referenced in the paragraph of the complaint. Let me identify this answer as answer A.

Then to the next four paragraphs of my complaint the answer is the same.

(Handing)

(The Court examining document)

Mrs. Portman: I will submit another answer. These Defendants -- Excuse me. I'm sorry for not reaching far enough.

These defendants are without knowledge or information sufficient to form a belief as to the truth of the averments paragraph of the complaint and thus are unable to either admit or deny the averments of that paragraph. Allow me to identify this answer as answer B.

Then to the next six paragraphs of my complaint the answer is simply denied. I will call that answer C.

Then to the next six paragraphs, paragraph 34 through 39, we return to answer B stated as you see before you. To the next six paragraphs, paragraph 40 to 46, the answer is the same as answer A.

Now, just two paragraphs, being paragraphs 46 and 47, have again the simple answer C, denied (indicating). And we're back to the same answer used before for the next two paragraphs being paragraphs 48, and 49, in that it states again, paragraph contains the Plaintiff's legal theories and as such is not an allegation of fact that need be admitted or denied. To the extent an answer is required paragraph is denied.

And, Your Honor, I submit that as answer D.

(Handing)

(The Court examining document)

Mrs. Portman: For the next three paragraphs, being 50, 51, and 52, we again have answer B.

For the next eight paragraphs, being 54 through 61, we again have answer D; paragraph 62 answers A; paragraph 63 answers C; paragraph 64, 65 and 66 use answer A; paragraph 67 through 72 use answer B; paragraph 73 and 74 use answer A; paragraph 75, 76 and 77 use answer B.

Then in Defendants' answer, paragraph 78 complaint, paragraph 77 goes back and uses answer A. Consequently, paragraph 77 of the complaint was answered with both answers A and answer B, apparently confused by your [should be "her"] own numbering of the paragraphs. Ms. Allen then consolidates answers for the remaining paragraphs of the complaint.

In paragraph 79 she responds, the complaint in paragraph 78 through 112 are answered with answer A.

In her paragraph 80, she responds that complaint paragraphs 113 through 116 are answered with B.

In paragraph 81, she finally uses a new and fifth response, these Defendants deny the allegations of paragraph 117 of the complaint basically the same as answers C.

(Handing)

(The Court examining document)

Mrs. Portman: I submit that these answers which make up the six [should be "six judges'"] defense are vague, incomplete and in some cases misleading. And I will have one additional comment about these Defendants' answer later in my argument.

As to the fifth defense, I absolutely concur that Superior Court judges should have judicial immunity for judicial acts submitted.

The Court: I think -- Excuse me just a minute. I think the -- what a complaint should be is covered in the -- or what it can be and what it doesn't have to be is covered in the Civil Practice law. Can you quote me a section in that law that says their answer is incomplete or --

Mrs. Portman: Your Honor, I'm not a trained attorney.

The Court: But you've taken on the role of an attorney and you have to assume that.

Mrs. Portman: Your Honor, I understand the law to be that I need to plead substance over procedure. And I am attempting to --

The Court: You can plead procedure but you've got to state what's wrong and the law that governs it. You can't just say this answer is inadequate if that's allowed by law to deny or answer it like it has been.

Mrs. Portman: I -- I was not prepared to have a requirement that I could not argue the substance of the law. May I submit an addendum in writing?

I will be happy to research the Civil Practice Act and the Official Code.

The Court: This is our hearing. I don't think I can keep dragging this case out. It's been on the books five years. You need to get rid of it; they need to get rid of it and be through with it or go on to your next appeal or whatever you want to do.

But I'm not going to delay the trial of this case any further or any proceedings.

Mrs. Portman: And I appreciate that, Your Honor, because I don't want to delay it.

The Court: You certainly don't need to delay it. It would run anybody's health down to go through something for five years as you have. And you're lucky if it hasn't.

But we're not going to take nay more delays in this case unless it's absolutely necessary to get to some --

Mrs. Portman: Am I interpreting you to say that I may not have permission to submit --

The Court: I'm going to make my ruling today on this motion to dismiss and I'm not going to give any more time for either side to do any more research. This is it.

Mrs. Portman: Okay.

I also submit to this court there do exist times where immunity is not available and cannot magically become a blanket of protection for non-judicial acts.

In this country, we hold the judiciary to be above the law for very specific reasons. We call judges honorable for the same specific reasons. We expect the same honorable performance of judicial duties that were evidenced in their work performed prior to election. And upon election, they become members of a special group, special rights and privileges.

The balance to those rights is duty. When even one judge abuses the privilege, all other members of the judiciary suffer.

It behooves each member of the judicial system to challenge the others to remain ethical, moral and legal.

I read from Davidson Schulman's Georgia Practice and Procedure, page 81, Section 310. The Georgia Supreme Court has adopted a code of judicial conduct governing the conduct of judges and officers of judicial systems performing judicial functions.

The code consists of 7 canons of which I shall read just a third. Canon three, judges should disqualify themselves in a proceeding in which their partiality might reasonably be questioned, included but not limited to instance where the judge has a personal bias or prejudice concerning a party or a party's lawyer or personal knowledge of disputed evidentiary facts concerning the proceeding of the judge or the judges spouse or a person within the third degree of relationship to either of them or the spouse of such a person or any other member of the judge's family residing in the judge's household is a party to the proceeding or an officer, director or trustee of a party --

The Court: In the interest of time, may you not just read us all but read the one that you think is applicable in this case or are you arguing that my recusal -- I've already ruled on that.

Mrs. Portman: No, Your Honor, I am not.

The Court: Well, that's what I thought you were arguing.

Mrs. Portman: No. And I certainly don't mean to imply that.

The Court: Well, I certainly want to give you every chance but --

Mrs. Portman: I certainly don't mean to imply that.

The Court: Time is of the essence. And I want you to stick to this motion to dismiss or something that is illegally done here or done in this case.

Mrs. Portman: Okay. I apologize. Before I began, you said we had all the time necessary and I --

The Court: I certainly do want to give you all the time. I just -- I just don't understand what that's got to do with a motion to dismiss talking about recusal.

Mrs. Portman: This same canon provides a framework in which a specific judge can recuse himself yet continue to act as trier.

To quote, judges who are disqualified may disclose on the record the basis of their disqualification and may ask the parties and their lawyers to consider out of the presence of the judge whether to waive disqualification.

If following disclosure for any basis for disqualification other than personal bias or prejudice concerning a party, the parties and lawyers without participation by the judge, all agree that the judge should be -- should not be disqualified and the judge is then willing to participate, the judge may proceed -- may participate in the proceedings.

The Court: Are you arguing about the divorce case recusal?

Mrs. Portman: Yes, ma'am, I am.

The Court: I see what you're arguing. You're saying that --

Mrs. Portman: Judge Flournoy had an opportunity to disclose --

The Court: But you see, you're going back to the divorce action. And what we're doing here is the motion to dismiss based on your complaint. And, of course --

Mrs. Portman: And my complaint is simply that the divorce action I did not see --

The Court: I have no jurisdiction over that divorce action. This Court in this action cannot set aside that divorce action, cannot do anything concerning that divorce action. Your remedy was to appeal that.

Mrs. Portman: My every effort to appeal was blocked by the Superior Court, Your Honor. I was not given findings of fact and conclusions of law.

No appeal can go to the Court of Appeals or the Supreme Court of Georgia without findings of fact and conclusions of law. It is a requirement.

I asked for findings of fact and conclusions of law. I was barred from them specifically. I followed --

The Court: All right. Go ahead.

Mrs. Portman: I followed the Code 9-11-52 and requested findings of fact before October --

The Court: Let me ask for a little help here.

Do you know anything about the findings of fact and conclusions of law?

Ms. Allen: I wasn't part of the case at that time, Your Honor, but I could say that I don't believe that was a right for appeal, Your Honor.

The Court: There's plenty of orders in appeal without --

Ms. Allen: Right. All that it needs to be was a final order or a certificate of immediate review or if you had to take a discretionary appeal that you follow the procedures for discretionary appeal.

I don't believe that finding of fact is a requirement.

The Court: I don't know of any.

Mrs. Portman: Your Honor, may I submit 9-11-52.

The Court: All right.

Mrs. Portman: A, in ruling on interlocutory injunctions -- and in all non-jury trials and courts of record -- the court shall upon request of any party made prior to such ruling find the facts specifically and shall state separately its conclusion of law.

If an opinion or memorandum of decision is filed, it will be sufficient if the findings and conclusions appear hereon. Findings shall not be set aside unless clearly erroneous, And due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.

B, this code section shall not apply to actions involving uncontested divorce, alimony and custody of minors nor to motions except as provided in subsection B of Code Section 9-11-41. The requirements of subsection A of this code section may be waived in writing or on record by the party.

We did not waive findings of fact and conclusions of law.

C, upon motion made not later than 20 days after entry of judgment, the Court may make or amend its findings or make additional findings and amend the judgment accordingly.

If the motion is made with a motion for new trial, both motions shall be made within 20 days after entry of judgment.

The question of this efficiency of the evidence to support the findings may be raised on appeal whether or not the party raising the question has made in the trial court an objection to findings or a motion for judgment.

When findings or conclusions are not made prior to judgment to the extent necessary for review, failure of the losing party or to move thereafter after judgment shall constitute a waiver of any ground of appeal which requires consideration thereof.

The Court: Ms. Allen, would you address that.

Mr. Donovan: Me?

The Court: No. Ms. Allen.

Ms. Allen: What I have to say about that is it doesn't keep you from appealing. It's something that might cause the appellate courts to reverse and send it back down again or it might cause you to lose on appeal. But it doesn't stop the case from being decided on appeal, reviewed on appeal.

I think all that's being argued here is that the claim is that Judge Flournoy made a mistake in not submitting findings of fact. But that didn't keep her from appealing what she considered to be a mistake.

Mrs. Portman: Your Honor, I have said on the record on Friday that there was a disagreement between my attorney and myself immediately after the hearing -- after the trial, the divorce trial.

I did not know that the order was filed until more than 30 days after it was filed.

Previous to that, I had asked for findings of fact and conclusions of law. My own attorney filed a notice of intent to withdrawal. [should be "withdraw."] And I had another attorney look at it and that attorney said, if you don't do anything in 10 days it will be.

I had to rely on that document that was notarized and sent to me that he was withdrawing from the case. After he sent me that, he then proceeded with obtaining a decree from the Judge.

I have no evidence to show that either my attorney, Mr. Kidd, deceived the judge in this case by not telling him he had withdrawn from the action or whether Judge Flournoy ruled without Mr. Kidd's knowledge of that. It's conflicting evidence that is on the record to show that my attorney was told specifically in a letter that was -- that was dictated to me by another attorney Lawrence Custer, Larry Custer, who dictated to me how to respond to Mr. Kidd, to tell him not to proceed with anything without my express permission. And Mr. Kidd did. He then sent me a notice of intent to withdraw and he proceeded with my case.

Even after that when I went to get evidence from the Court, the Court wouldn't give it to me.

The Court: Well, you're not suing Mr. Kidd.

Mrs. Portman: I understand but it is the conflict of evidence that is on the record. Mr. Kidd has to this date not given me my complete divorce file, He insisted that I file a malpractice waiver before he would give me what I wanted from my divorce file.

The Court: All right. Anything further that you want to --

Mrs. Portman: Yes, Your Honor, I do. And I'm sorry. I was trying to address your question.

The Court: Well, I appreciate that.

Mrs. Portman: I recognize that judges are human and can make honest yet irrevocable mistakes. For that reason, we have the appellate courts.

I simply ask the Court's -- this Court to consider the following. If the right to appeal truly exists, why does the higher court have the power it [should be "to"] allow lower courts ruling to stand without a review of the merits. Consequently the right to appeal is not a right to receive a review of the merits. It's simply a right to pay the fee and submit the documents.

I'm surely not the first or only person to see the injustice in this.

The Court: That is the law and you know I can't do anything about the law.

Mrs. Portman: I understand that. I'm simply trying to point out where the law is an abuse of my due process.

The Court: But the appeal system -- your due process is in the lower court here.

Mrs. Portman:  due process is that I have the right --

The Court:  The law is that the appellate court reviews the record and makes their decision based on the record.

Mrs. Portman:   May I ask a question?

The Court:  Um-hmm.

Mrs. Portman:  Do I interpret the understanding of due process correctly in that in the lower court it give me the right to a final judgment and it gives me the right to be heard by an -- by an uninvolved trier?

The Court:  It certainly does.

Mrs. Portman:  And I present to you today that that did not happen. And because it did not happen and because it was the duty of the judge to disclose, Your Honor, within the court -- let me explain something else that happened.

The Court:  Let me just say that I cannot determine that.

Say you get your divorce and you find that there has been an error in getting that divorce or something, the law hasn't been applied, you appeal that.

But you can't come into another Superior Court and say that divorce wasn't right, they didn't do right.

Mrs. Portman:  Your Honor, I don't mean to attack you, but I do question whether you fully understand what a complaint for declaratory judgment involves.

I do not -- It's not an exclusive method.

The Court:  I'm saying that you have not shown me any law that says a declaratory judgment is applicable in this case of a mandamus.

Mrs. Portman:  If given five minutes to go through my papers, I believe I can find it for you.

The Court:  All right. We'll take a five-minute recess  at this time.

(Recess taken at 10:50)

Mrs. Portman:  Judge, I apologize I wasn't ready to submit that. I thought I had it with me and I don't.

All right. Again, my argument is that it's on substantive law and that I can bring it into court given the time.

To the first defense, I submit that I argued that point earlier. The fourth defense is that I have not made a clear and plain statement of my claims as required in O.C.G.A. 9-11-8, 2 and A.

Your Honor, I request to know is it the responsibility of the Court to read the complaint? I am more than happy to read into the record portions of the complaint.

The Court:  Well --

Mrs. Portman:  But I find that duplicative.

The Court:  The complaint is in the record. It's already in the record.

Mrs. Portman:  Okay. On Friday when I started to read it and I made the comment you requested that I complete it so I -- that's the reason I asked.

The Court:  All right.

Mrs. Portman:  The third defense is that there is no actual controversy between the Plaintiff and Defendants. I have in specific terms and with specific identifications laid out the controversy in my original complaint and the two succeeding amendments.

These judges have failed to meet their obligations with the complete and verified answer. Even after two filed notices of error, their collective answer appears to be that of Ms. Kathryn Allen rather than that of the six judges. Excuse me. I said two filed notices of error. There were three filed notices of error. And I believe that should be questioned.

I challenge that the answer cannot be amended without leave of court and that this court would be exhibiting abusive discretion to allow it at this state.

I now wish to address the defense raised by Defendant Judges submitted by Ms. Kathryn Allen, that being their second defense claim preclusion and issue preclusion, res judicata and collateral estoppel and my amended claim of counter-estoppel. All four of these defenses are dependent on the term, adjudication and valid judgment.