Brief of Appellant, Filed January 4, 1999

MARQUITTA L. PORTMAN,      	*                         

     Appellant,         	*         

    -VS-                	*      CASE NO S99A0440                                

S. LARK INGRAM,           	*         

     Appellee.           	*                            

COMES NOW, Marquitta L. Portman, Plaintiff/Appellant, pursuant to O.C.G.A. § 5-6-34(a)(1) and O.C.G.A. § 5-6-34(a)(6), and files this her BRIEF IN SUPPORT OF APPELLATE REVIEW, and shows this Court:

Appellant seeks an appeal from the ORDER of the Superior Court of Cobb County, the Honorable James G. Bodiford, then presiding, in the case styled as follows:

Marquitta L. Portman, Plaintiff
v.
S. Lark Ingram, Defendant,
Superior Court of Cobb County,
Civil Action File No. 98-1-6130-33

Appellant was represented pro se and Appellee was represented by Kathryn L. Allen, Senior Assistant Attorney General of the Department of Law, State of Georgia.

Appellant shows that jurisdiction is properly in this Supreme Court of Georgia, pursuant to O.C.G.A. § 5-6-34 (a) (1), O.C.G.A. § 5-6-34 (a) (6), O.C.G.A. § 9-6-1, O.C.G.A. § 9-6-28, O.C.G.A. § 15-6-9, O.C.G.A. § 15-6-9, O.C.G.A. § 15-2-8, O.C.G.A. § 99-6-1.4, and specifically O.C.G.A. § 99-6-6.3, Paragraph III, (5); further supported by the Opinion of the Supreme Court of Georgia in the case of Graham v. Cavender et al., No. 40769, 252 Ga. 123; 311 S.E.2d 832; 1984 Ga. LEXIS 621 (February 10, 1984, Decided); and further, based on the provisions of the Constitution of 1983, (Article VI, § I, Par. IV (Code Ann § 2-2704).

This BRIEF IN SUPPORT OF APPELLATE REVIEW is filed within the time prescribed by law. The docketing date of Supreme Court Case No. S99A0440 is December 16, 1998. This BRIEF IN SUPPORT OF APPELLATE REVIEW is due within 20 days of docketing of the Record; therefore, the last day for filing this BRIEF IN SUPPORT OF APPELLATE REVIEW is January 5, 1998. (31 days in December)

Appellant respectfully pleads with this Court to review the ORDER of September 18, 1998 by the Honorable James G. Bodiford and to take appropriate action to protect Appellant from further injury. The intent of Mandamus was to receive timely judgment. Appellant was denied the Mandamus Absolute AND was denied the underlying timely judgment, for the ORDER (of September 25, 1998) was filed outside the time as prescribed by O.C.G.A. § 15-6-21(b) & (c). The Defendant in the Mandamus action (Judge Ingram) has further compounded the error, and the question, by recusing herself from one of the underlying actions just fourteen (14) days after filing her untimely ORDER (September 25, 1998) in that same action. Appellant is left with the responsibility of challenging the validity of the September 25, 1998 ORDER, for Appellant does not know which Court now has jurisdiction of the underlying divorce action, in which Appellant has filed a timely Extraordinary Motion for a New Trial, filed January 29, 1998. “Exhibit A” The ORDER of September 25, 1998 moved the divorce action to Judge Ingram’s court, yet she recused herself only from the custody action.

Appellant respectfully seeks this Court’s pardon for statements made which cast any officer of the Cobb County Superior Court in an unfavorable light. However, Appellant respectfully pleads that the Law has been repeatedly and consciously abused in the underlying cases (Cobb County Civil Action 94-1-5243-22, 96-1-0373-24, and 96-1-2243-24) by officers of the Court. Appellant is bound by the higher authority of truth in presenting this appeal to the Supreme Court for justice.

Appellant brought a mandamus action against the Honorable S. Lark Ingram after Appellee refused to issue filed judgment on Appellant’s Motion for Declaratory Judgment of February 19, 1998. (R—Petition for Mandamus, Exhibit A) in the underlying custody action; such motion having been heard in oral argument June 24, 1998, and such refusal being made June 24 and July 15. (after the close of the transcript, but included in R—Petition for Mandamus, Exhibit I, Affidavit of Marquitta L. Portman, July 14, 1998, p. 2, paragraph 9; and R—Petition for Mandamus, Exhibit T, letter with attached transcript of phone message from Page Moffett, magnetic tape available)

Following local assignment rules, the mandamus action (filed July 30, 1998) was assigned to be heard by Defendant. The presiding judge clarified (July 31, 1998) that the Defendant would necessarily need to recuse herself from the Mandamus action, for she could not act as both defendant and trier. However, Defendant failed to recuse herself in a timely manner. Appellant requested Defendant’s recusal by letter of August 2 and letter of August 20. (R—Affidavit of Marquitta L. Portman, August 31, 1998, Exhibits A & B) Appellant reviewed the record in the Clerk’s office on August 28 and found no evidence of defendant’s recusal. Only after Appellant filed a Mandamus Nisi (R—Mandamus Nisi of 8-28-98), scheduling a hearing in Judge Ingram’s court, did Appellant learn that Defendant had recused herself from the Mandamus action by ORDER filed August 19, 1998 (R—ORDER of 8-19-98). Appellant notes that Defendant’s office claims to have notified Plaintiff by mail, but Plaintiff received no such notification prior to August 28.

The underlying custody action was assigned to the Honorable S. Lark Ingram upon the Disqualification of the Honorable Robert E. Flournoy, January 9, 1998. (R—Petition for Mandamus, Exhibit L, M, & N) Appellant has been barred from appealing the Disqualification ORDER, although she submitted a Motion for Reconsideration and a Motion for Certification of Ruling Under O.C.G.A. § 5-6-3(b) (R—Petition for Mandamus, Exhibit O, P, & Q). The transcript of the June 24, 1998 hearing (R—Petition for Mandamus, Exhibit H, p. 9, line 17 thru p. 11, line 11) further illustrates and cites authority for error of the ORDER of January 9, 1998. It is Appellant’s contention that the Superior Court is purposely using procedure and inaction to delay the custody action until the issue becomes moot due to the age of the minor child. The custody action has been before the Cobb County Superior Court since March of 1996. The minor child turns 18 on February 5, 1999 and expects to graduate from high school June of 1999. Appellant now sees no hope of ever reaching a final judgment in Civil Action File No. 96-1-2243-24, and by final judgment have the right of appeal.

Said Disqualification also barred Appellant from presenting evidence to the Court that the Honorable Robert E. Flournoy, Jr. should have recused himself prior to the divorce action. Appellant believes, and shows this Court that the evidence proves the ORDER of January 9 to be a clear attempt to bar Appellant from obtaining further evidence from the Court Reporter and from obtaining further testimony from witnesses. Appellant also believes, and shows this Court that there is sufficient evidence to determine that the Final Judgment and Decree, filed December 11, 1995 is VOID. However, without declaration as a VOID order, the status of the ORDER remains hidden.

Some actions by court officers, which had the appearance of being illegal, were actually attempts to be in conformance with a hidden VOID ORDER. What appeared to be an illegal act by a Juvenile Court judge to disregard joint legal custody as ordered by Superior Court, was actually the Juvenile Court’s way of adhering to the hidden VOID ORDER. (T—Addendum, Evidence Letter submitted at 9-16-98 hearing) What appeared to be waiving of gross injustices by the State Bar grievance panel was actually the State Bar’s way of adhering to the hidden VOID ORDER. What appeared to be a surprise dismissal in the foreclosure was actually an attempt to protect the VOID status of the Final Judgment and Decree.

Appellant’s actions were directed by the ORDER which had all appearances of being valid, that of Final Judgment and Decree. Appellant has been through three years of legal nightmare due to this hidden VOID ORDER and has taken significant steps, made countless irreversible decisions, and spent over $30,000.00 to pursue justice, based on an ORDER which she now sees must be, and which apparently has been known by the Court to be, VOID.

Appellant now comes before this Supreme Court with this Brief in Support of Appellate Review. After the recent voluntary recusal of Judge Ingram from the underlying custody issue, Appellant has received a Certificate of Immediate Review from the current Trial Court, and has applied for Appellate Review from the Court of Appeals. Due to error in the docketing date of said Application for Appellate Review, said case is currently before the Supreme Court with a Petition for Writ of Certiorari.

It was error for the Trial Court to deny Appellant’s request for jury trial, for it denied Appellant due process of Law.

“The right to a jury trial in civil actions at common law is protected by the Seventh Amendment, and the maintenance of the jury as a fact-finding body is of such historical importance that the curtailment of the right to a jury trial should be scrutinized with the utmost care.” 5 Am Jur 2d, Section 737, page 400. Further, “A wrongful denial of a jury trial in a civil action.... does not constitute harmless error if the matters presented were properly triable by jury, a jury demand was timely made, and fact questions were presented, or where it appears that the trial judge’s decision was based on a weighing of the evidence.” 5 Am Jur 2d, Section 737, page 401. In the instant case, the matters were properly triable by jury, a jury demand was timely made, (R—Petition for Mandamus, p. 8, lines 7-13; Jury Trial Demand of 8-31-98; Brief in Support of Jury Trial Demand of 8-31-98; Plaintiff’s First Amendment to Jury Trial Demand and Request for Findings of Fact and Conclusions of Law of 9-14-98; Plaintiff’s Second Amendment to Jury Trial Demand and Request for Findings of Fact and Conclusions of Law of 9-16-98) fact questions were presented, and the trial judge’s decision was unquestionably based on a weighing of the evidence. (T—p. 2, lines 9-11 & 23-25, p. 11, lines 10-14; R—Respondent’s Answer, Fourth Defense; T—p. 12, lines 17-21)

The United States Supreme Court stated that “the right to a jury trial reflects a profound judgment about the way in which law should be enforced and justice administered, and that the deprivation of that right, with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as “structural error,” to which a harmless error analysis is inapplicable.” Sullivan v. Louisiana (US) 124 L Ed 2d 182, 113 S Ct 2078, 93 CDOS 3934, 93 Daily Journal DAR 6962, 7 FLW Fed S 341, on remand, remanded (La) 623 So 2d 1315.

Pursuant to the Seventh and Fourteenth Amendment to the U.S. Constitution, the Georgia Constitution, 1983, Article I, Section I, Paragraph XI, and O.C.G.A. § 9-11-39, and by proper Demand, (R—Jury Trial Demand of 8-31-98) and Brief, (R—Brief in Support of Jury Trial Demand of 8-31-98) Appellant did claim her right to a trial by jury, such trial to be at a time and place to be designated by the Court, set down for the first day of the next term of the Superior Court as other jury cases are tried. The Record and Transcript clearly show that Appellant established the existence of a genuine issue of material fact, by showing that Appellee’s Answer made a claim contrary to the evidence. (R-Appellee’s Answer, page 1, Fourth Defense; and T-p. 2, lines 23-25) A genuine issue of material fact did exist on the face of the Record. Therefore, the issues were properly due to be presented to a jury for verdict. Appellant never willingly or knowingly waived any of her substantive or procedural due process rights.

The Transcript of the September 16, 1998 hearing does show that she pro-actively sought her essential and basic fair-trial-right to an impartial adjudicator, (T—p. 12, line 22, p. 34, lines 22-24; page 38, lines 8-10) yet such right was summarily violated (T—p. 12, lines 20-23, p. 35, line 9 - p. 36, line 18, p. 36, line 24 - p. 37, line 15).

The Transcript shows that it was Judge Ingram’s conscious decision to remain as trier of the underlying (custody) issue, (T—p. 4, lines 16-20; p. 8, lines 2-7; p. 10, lines 10-14; and page 11, lines 10-14.) (T—p. 4, lines 16-20; p. 8, lines 2-7; p. 10, lines 10-14; and page 11, lines 10-14.) and that she “agreed” to act in the manner described by Judge Bodiford, to complete the ORDER in Civil Action File No. 96-1-2243-24 (T—p. 12, lines 1-2). Yet, the record and the transcript shows no motion to amend Appellee’s Answer, Fourth Defense.

In the instant case, the trial judge’s weighing of the evidence was an act of trespass, for it was plaintiff’s right that it be a jury’s duty to weigh the evidence.

It was error for the Trial Court to deny Mandamus, for the Laws of Georgia specifically prescribe mandamus as one of two proper remedies when a judicial officer refuses to abide by O.C.G.A. § 15-6-21, and the argument was properly presented at trial.

The Superior Courts and the Supreme Court have authority to grant writs of mandamus, pursuant to O.C.G.A. § 15-6-9 and O.C.G.A. § 15-2-8.

Appellant has shown on the Record, and in the Transcript, that the conditions were complete for a Mandamus Absolute.

1. Appellant showed a pecuniary interest, (T — page 58, lines 10-25): Although the very nature of Declaratory Judgment is to seek the court’s opinion, there is some case law to imply that a pecuniary interest must exist for Plaintiff’s successful pursuit of a Writ of Mandamus. The underlying issue of Child Custody certainly holds a pecuniary interest for me and for my children. Further, the very validity of the divorce decree carries significant pecuniary interests. In addition, there is an attorney’s lien in excess of twenty thousand dollars on my home, yet that lien must also void if the divorce decree is now void. Because of the surreptitious handling of Judge Flournoy’s disqualification, I am left in a quandary over my own marital status. The financial, religious, emotional, and legal aspects of such a state of mind are simply impossible to comprehend.” (T—p. 58, lines 10-25)
2. Appellant had no remedy other than Mandamus, by which to receive the written order. Pursuant to the Opinion of this Supreme Court of Georgia in the case of Bonner v. Smith et al., No. A97A0424, 226 Ga. App. 3; 485 S.E.2d 214; 1997 Ga. App. LEXIS 402; 97 Fulton County DR P1464 (March 13, 1997, Decided), “the only remedies for violation of the statute [O.C.G.A § 15-6-21] are mandamus and impeachment of the judge.”
3. Appeal was not available as a remedy in the underlying case, for the ORDER from the hearing of June 24, 1998 had not yet been put in writing, signed by a Superior Court Judge, and filed with the Clerk of Superior Court. As agreed to by the Honorable James G. Bodiford, and pursuant to O.C.G.A. § 5-6-31, one cannot appeal an order until it is put in writing and filed with the clerk. (T— page 31, lines 21-24)

Because of the denial of the writ of Mandamus, Appellant is now left with an additional VOID ORDER. Although Judge Ingram did enter an ORDER, “Exhibit 1” in the underlying case, September 25, 1998, said ORDER was more than 90 days after the hearing, therefore in violation of O.C.G.A. § 15-6-21. After said ORDER, on October 6, 1998, Appellant filed a Second Motion for Declaratory Judgment and Rule Nisi, “Exhibit 2 & 3.” Appellee then issued an additional ORDER, “Exhibit 4,” on October 9, 1998 recusing herself on her own Motion, “due to various factors and circumstances” from the underlying issue, that of Change of Custody. It is apparent from the Record that Judge Ingram was cognizant that her own ORDER of September 25, 1998 “Exhibit 1” was, in fact, VOID. “Loss of jurisdiction” occurs when outside the time to act. Truckstops of America, Inc., et al. v. Engram 229 Ga App 616; 494 S.E.2d 709; 1997 Ga App LEXIS 1471; 97 Fulton County DR P4513.

Her subsequent ORDER of October 9, 1998 was styled only for the custody case, Civil Action File No. 96-1-2243-34, yet her ORDER of September 25, 1998 moved the divorce case, Civil Action File No. 94-1-5243-22 and the Extraordinary Motion for New Trial to her Court. Appellant shows the Court that by knowledgeably issuing a VOID order, Judge Ingram has shown intent to mislead. “Malice, intent, knowledge or other conditions of the mind of a person are averred generally, because they are so subjective in nature and can only be established or proven indirectly by circumstantial evidence or directly by admission through discovery.” (Ruskell, Richard C., Davis and Shulman’s Georgia Practice and Procedure, 1997 edition, p. 209, Section 7-9)

Appellant’s Motion for Reconsideration of Recusal Order of the Honorable S. Lark Ingram, October 16, 1998, “Exhibit 5,” Appellant’s Motion for Certification of Ruling Under O.C.G.A. 5-6-34(b), October 16, 1998, “Exhibit 6,” and Letter from Paige Moffett to Appellant, October 21, 1998 “Exhibit 7” are evidence that (1) Appellant continued to have respect for the Honorable S. Lark Ingram to render discretionary judgment is matters of child custody and (2) Judge Ingram was choosing to avoid trespassing on this case. Appellant believes that Judge Ingram is aware that the Final Judgment and Decree is VOID, yet she objects to her participation of a disclosure of previous misconduct in the case.

It was error for the Trial Court to delay this action, thereby precluding a jury trial and abusing Appellant’s due-process rights. Further, it was error for the Trial Court to dismiss the actions of Appellee which delayed the Petition for Mandamus and to dismiss the Court’s own actions which further delayed the Petition for Mandamus, leaving only 6 days within which to effectuate a filed ORDER.

By the time of the hearing, September 16, there were only 6 days within which an ORDER could be required, pursuant to O.C.G.A. § 15-6-21. First, Judge Ingram delayed the hearing by failing to recuse herself as trier (T—p. 40, line 6 - p. 43, line 5). Although Judge Bodiford makes it appear that the delay was only fourteen (14) days, (T—p. 42 line 25 - p. 43, line 14), the delay was actually from the time defendant was aware of the Petition, August 3, 1998 (R—letter dated August 2, hand delivered August 3) until plaintiff was aware of the judge’s recusal, August 28 (R—Affidavit of Marquitta L. Portman, August 31, 1998), therefore twenty-five (25) days. Judge Bodiford then continued the case until September 16 , 1998, (R—ORDER of September 2, 1998) for the purpose of allowing vacation time for the Attorney General, even though no Leave of Absence had been filed in the case and the Attorney General’s office has numerous attorneys who could have represented Judge Ingram.

The Petition for Mandamus was placed in Judge Ingram’s hands on August 5, 1998 through service by the sheriff. She had already received, as of August 3, 1998, Appellant’s written request to recuse. The assignment of Judge Ingram to the Civil Action of Mandamus was a clear and obvious case of conflict, for a judge cannot act as litigant and judge of the same case. Her recusal from the Petition for Mandamus required no discretion, but rather, it demanded that she simply and voluntarily recuse herself. The act required no more than direction to her law clerk to prepare a simple Recusal Order, sign, and file it. Appellant attempted to show consideration and patience for the Court, but the Court did not act promptly to recuse. Consequently, Appellant submitted a Mandamus Nisi, scheduling a hearing for Judge Ingram’s Court. However, she was THEN told that there was an ORDER, already 9 days old, which did NOT appear in the Clerk’s file. She subsequently requested the hearing before Judge Ingram to be removed from the calendar, so that it could be properly set on the calendar for a jury trial. “Exhibit G and H”

Judge Ingram’s recusal had never been requested from the custody issue, and consequently, she maintained the right to proceed with written judgment in the custody issue. Had she done so, an ORDER would have rendered the Mandamus moot. However, she continued to refuse to act. She failed to simply comply with the law through completion of her ministerial duties.

It is evident that Judge Ingram’s intent was to delay the custody case. The civil action for Change of Custody has been before the Superior Court since March of 1996. The age of the child in this Change of Custody may cause the Civil Action to become moot, if delayed long enough. Judge Ingram was assigned the case upon Judge Flournoy’s disqualification by Judge Robinson, January 9, 1998, an ORDER which in itself was an abuse of judicial discretion, yet was barred from appeal. (T—Petition for Mandamus, Exhibit G, p. 4, paragraph 4 through page 5, paragraph 2) The ORDER of January 9, 1998 is contradictory to O.C.G.A. 15-1-8 and further contradictory to Blakeman v. Harwell, 198 Ga. 165, 31 S.E.2d 50 (1944); Cox v. State 85 Ga. App 702, 70 S.E.2d 100 (1952); Daniel V. Yow, 226 Ga 544, 176 S.E.2d 647 (1970); Mapp v. State, 204 Ga. App. 647, 420 S.E.2d 615 (1992); and Johnson v. State 208 Ga. App. 453, 430 S.E.2d 821 (1993).

October 6, 1998, Appellant filed a Second Motion for Declaratory Judgment and by Rule Nisi, “Exhibit H,” placed it on the Calendar for November 5, 1998. Judge Ingram has taken further action to delay it yet again, by her voluntary recusal ORDER of October 9, 1998. Her recusal placed the case back on the “wheel” for reassignment to another judge and removed the hearing from the current calendar. Such action placed the Civil Action in danger of becoming moot and consequently is a gross injustice to Appellant.

Although Judge Ingram made a conscious decision to remain as trier of Civil Action File 96-1-2243-34 on September 16, 1998, she reversed that decision after receiving Appellant’s Second Motion for Declaratory Judgment. “Exhibit 2” The conclusion is reasonable that she chose not to be responsible for declaring her opinion on the validity of the Divorce Decree. However, justice demands that Appellant has a right to the truth concerning the underlying divorce decree, for it affects every part of her life.

Delay in Judge Ingram’s recusal from the Mandamus issue was simply an extension of the delay begun by The Honorable Robert E. Flournoy, Jr. to conceal his own error in the underlying Final Judgment and Decree of Civil Action File 96-1-2243-34. Although Judge Flournoy has been disqualified from the custody issue, Appellant was barred from an evidentiary hearing and from presenting evidence to show that Judge Flournoy should have recused himself before hearing the divorce case, Civil Action File No. 94-5243-22. The very nature of recusal is that any action of a judge after he “should have recused himself” is VOID. Butler v. Biven Software, Inc. 473 SE 2d 168 (Ga App 1996)

Delay and concealment have been evident in the related Civil Action File No. 96-1-0373-24, which is the Foreclosure on Appellant’s home for the claimed additional fees in excess of the $9,200 previously paid to attorney Daryl Kidd. Appellant has been subjected to a three year struggle of lien and foreclosure on her home and State Bar fee arbitration and grievance to obtain her divorce file from her divorce attorney. Although the State Bar demanded that attorney Daryl Kidd relinquish Appellant’s file, Mr. Kidd copied most of the file (by invoice, expected Appellant to pay for the copying) and submitted it to the State Bar. However, he has continued to bar Appellant from selected items. Said attorney notified Appellant of his Notification of Withdrawal, with Certificate of Service prior to completion of the Final Decree. “Exhibit B” When the Final Judgment and Decree was provided to Mr. Kidd, he then, by intentionally mailing said Decree to the wrong address, failed to properly inform Appellant until time to appeal the Bench ORDER had tolled.

It is now Appellant’s belief that the divorce decree is VOID. Only through declaratory judgment can Appellant determine the status of the Final Decree. However, delay tactics by the Superior Court, particularly the delays by Judge Flournoy, attorney Larry Custer, court reporter Jerald Knight, and Judge Ingram, have pushed this custody case toward danger of becoming moot. Pursuant to Citron v. Aro Corp. (CA3 Pa) 377 F2d 750, cert den 389 US 973, 19 L Ed 2d 466, 88 S Ct 473, a trial judge may commit reversible error if a litigant suffers substantial prejudice because the judge unnecessarily delays the trial. In the case of custody, unnecessary delays have life-long repercussions, for childrens’ learning and growth cannot be reversed. Appellant and her son have suffered greatly from the damage to their parent/child relationship.

Although O.C.G.A. § 15-6-21 allows judges in larger circuits (b) more discretion with the timeliness of completion of duties than what is allowed to judges in more rural circuits (a), it continues to be a Superior Court judge’s duty to act with due diligence in the completion of his/her judicial duties. Upon receipt of Civil Action File 96-1-2243-34 (Change of Custody) from Judge Flournoy’s court, due to the disqualification of Judge Flournoy, Judge Ingram had a responsibility, pursuant to the Canons and Code of Judicial Conduct, to review the case and attempt to move the pending motions. She failed to exercise her judicial duty.

It was error for the Trial Court to conclude (September 18, 1998) that Appellant was seeking to direct the Appellee in matters of judicial discretion.

The Record (R—Petition for Mandamus) clearly shows that Appellant made no claim for specific findings in her Petition for Mandamus, or in her comments at the hearing. The Petition clearly and simply sought a duly prepared ORDER, filed within the time period as prescribed by O.C.G.A. § 15-6-21. 265 Ga 326 In the Matter of INQUIRY CONCERNING A JUDGE No. 94-70, No. S95A0967 Supreme Court of Georgia, March 17, 1995, Reconsideration Denied March 30, 1995 shows that the appropriate remedy to require proper performance by official of statutorily imposed duty is to seek writ of mandamus. Cobb County v. Webb Development, Inc. 260 Ga 605, 3948 S.E.2d 3, (Ga. 1990) No. S90A1089 Supreme Court of Georgia, November 8, 1990, Reconsideration Denied Dec. 4, 1990 found that “when official act is discretionary, court may compel exercise of discretion by way of relief in mandamus, but it cannot direct manner in which that discretion shall be exercised.” Further, Bonner v. Smith et al., 226 Ga. App. 3, 485 S.E.2d 214, (Ga. 1997), No. A97A0424 Court of Appeals of Georgia. March 13, 1997. Reconsideration Dismissed April 3, 1997 and Brooks v. The State (three cases) 265 Ga 548, 458 S.E.2d 349 (Ga. 1995) S95A0215, S95A0258 and S95A0265 Supreme Court of Georgia, June 30, 1995 found that “Mandamus and impeachment of judge are only remedies for violation of statute providing time periods for ruling on motions, O.C.G.A. § 15-6-21.”

Because judgment is not final until it is reduced to writing and properly filed with the Clerk of the Court, pursuant to O.C.G.A. § 5-6-31, Appellant sought that ministerial portion of the ORDER. Case law cited by the Appellee and in the ORDER of September 18, 1998 has been misconstrued to effect judgment in this instant case. Henderson v. McVay, cited by opposing counsel as “269 GA. 7, a 1998 case” (T— p. 16, lines 20-21) and again cited by Judge Bodiford in his ORDER of September 18, 1998 (R—ORDER of 9-18-98, page 3, lines 19-20) actually clarified the difference between judicial and ministerial acts. In that case, the Judge had the discretion to probate the will in common form or in solemn form. The opinion of this Supreme Court held further that the term “may” in a statute gives a court the authority to use discretion. O.C.G.A. § 15-6-21 does not contain the term “may,” but rather, uses language which requires the completion of a duty within a prescribed time. Further, said statute determines the penalty if any judge fails or refuses to obey the provisions of subsections (a) through (c). Appellant asserts that Judge Ingram is now subject to the other penalty of O.C.G.A. § 15-6-21 (d), that of impeachment, for she failed to file the ORDER until September 25, 1998.

There are four parts of judgment: the opinion, the written statement of opinion, the signature, and the filing. Only the first, the opinion, requires discretion. The act of discretion occurred during the June 24, 1998 hearing, for Judge Ingram issued her verbal opinion, apparently in sufficient form for Judge Bodiford to prepare the next portion of the act, which was purely ministerial. Judge Ingram completed the third act of signing the ORDER. At that time, she declined her right to exercise further discretion with any changes to the prepared ORDER. It is the fourth part of judgment which continued incomplete until after the deadline had passed. The ORDER was not filed within the required 90 days, and therein lies the larger dilemma. Why, even after the threat of Mandamus, did Judge Ingram fail in her judicial duties? Was it an intentional act to create a VOID ORDER? Did she not want to trespass on this case with ANY order? Although it is possible to claim clerical error in filing the ORDER, it is the duty of a trial judge to oversee the responsibilities and actions of his/her staff.

It was error that the Trial Court determined that Appellant acted out of “fear, before a refusal to act.”

Although it may be customary for a judge to allow a prevailing party to prepare an ORDER, it remains the duty of the judge, sometimes through the actions of his/her staff, to complete the ministerial duties which naturally follow his/her judicial discretion of judgment. The Record clearly shows that Judge Ingram refused to act, not just once, but twice. As cited above, page 3, line 23 and page 4, lines 1-3 (after the close of the transcript, but included in R—Petition for Mandamus, Exhibit I, Affidavit of Marquitta L. Portman, July 14, 1998, p. 2, paragraph 9; and R—Petition for Mandamus, Exhibit T, letter with attached transcript of phone message from Page Moffett, magnetic tape available) Judge Ingram did “reject,” “turn down,” and “decline” her ministerial duties. Such rejection was evidenced by her repeated direction to Appellant to prepare the written record of the Court’s verbal opinion. Judge Ingram’s actual failure to complete the ORDER, even after the threat of Mandamus, is further evidence of “refusal to act.”

The transcript of the June 24, 1998 hearing (R—Petition for Mandamus) does not contain any specific portion, identified as the “Court’s opinion.” Therefore, Appellant would have been taking great liberties to have worded the Court’s opinion in the form of a written order. Appellant was also being cautious of her actions, in that some of her research led her to believe that she would be waiving her rights to appeal if she prepared such an order.

The Honorable James G. Bodiford apparently interpreted that Appellant was “refusing” to follow Judge Ingram’s ORDER (T—p. 5, lines 2-6; p. 8, line 25) by simply “abstaining” from preparing the ORDER, yet Judge Ingram’s action of “abstaining” from preparing the ORDER is NOT interpreted as “refusing.” Appellant presents the irony of this, since it is the duty of the Court to prepare the ORDER. Failure to convince another party to perform that duty does not absolve the Court of the duty. If one action was “to refuse” and the other action “to abstain,” Appellant argues that it is the judge who refused and the Appellant who abstained.

The Record shows that the very judgment of “fear, before a refusal to act” was unquestionably based on the trial judge’s weighing of the evidence. If this same question had been presented to a jury, it could have been very different. If put to a jury of Appellant’s peers, it would have required that the jurors evaluate the “preponderance of the evidence” concerning the Appellant’s “fear” at the time of filing the Petition for Mandamus.

It was error for the Trial Court to issue an opinion as to what had or had not been proved; and further, did violate the Code of Judicial Conduct through verbal treatment of Appellant during the hearing of September 16, 1998.

The Transcript shows that the Honorable James G. Bodiford did express and intimate his opinion as to what had or had not been proved. Such action is error, pursuant to O.C.G.A. § 9-10-7. The transcript also shows that Judge Bodiford was predisposed as to how he intended to rule in this action. (T—p. 2, lines 7-8) The Transcript shows that the Honorable James G. Bodiford was in violation of the Code of Judicial Conduct, Canon 3 B (4), (7), (9), Section 3 D (1), and Section 3 D (2) with numerous sarcastic, bullying, and intimidating comments, some of which are cited: (T—p. 3, line 19 thru p. 4, line 5; p. 6, lines 7-10; p. 7, line 20; p. 9, lines 1-15; p. 11, lines 21-25; p. 15, lines 4-6; p. 38, line 18-19, pages 34-39; p. 60, lines 22-24; p. 61, lines 2-9; etc.)

Further, the Honorable James G. Bodiford did lose his patience with plaintiff’s objection to the dismissal of the genuine issue of material fact. (T—p. 39, lines 12-17) Judge Bodiford did display an absence of common courtesy when he reprimanded Appellant. (T—p. 47, line 4 thru p. 48, line 14)

Comments made by Judge Bodiford during the September 16, 1998 hearing, were evidently prejudicial. The transcript (T—p. 19, lines 19-21) quotes Judge Bodiford, “as far as an investigation of the conversation, I’m going to deny the relief and I accept the reasoning given to me by Judge Ingram’s attorney.” That reasoning, being part of the transcript (T—p. 16, line 13 thru p. 18, line 5), is erroneous and misleading. She stated, “Mandamus....it cannot be used to control judicial acts of a judge.” Yet, pursuant to Corpus Juris Secundum (55 C.J.S. Mandamus, § 1.): “Mandamus has been broadly defined as a writ issuing from a court of competent jurisdiction, directed to a person, officer, corporation, or inferior court commanding the performance...of an act which the law specially enjoins as a duty resulting from an office, trust or station.” She cited case law from 1854. She suggested that “as a taxpayer Mrs. Portman wanted to be sure that justice was done and, you know, she wanted to be sure that the judge kept her administrative people on the straight and narrow,” implying that Appellant is a “whistle-blower” and has no real interest in the instant petition for mandamus. She went on to suggest that Applicant was failing to seek the “proper remedy” of appeal (T—p. 17, lines 22-23). Appellant found it difficult to believe that Ms. Allen was unaware of O.C.G.A. § 5-6-31 and that there was no filed ORDER yet from which to appeal. In fact, later in the hearing, Ms. Allen shows that she is aware that filing an order begins tolling of time for appeal (T—p. 76, lines 15-18) Ms. Allen’s remark about one judge mandamusing another judge is also misleading. Pursuant to Elliott v. Leathers, 223 Ga. 497, 156 S.E.2d 440 (1967) and Hamby v. Pope, 229 Ga. 339, 191 S.E.2d 53 (1972), a Superior Court judge, as plaintiff, cannot mandamus another Superior Court judge, as defendant. Appellant was the Plaintiff in this action, not Judge Bodiford.

The erroneous and prejudicial determination by Judge Bodiford to disregard the cited genuine issue of material fact is inconsistent with substantive justice. The Honorable James G. Bodiford did recognize that Appellee’s Fourth Defense was a genuine issue of material fact. (T—p. 2, lines 23-25) “I am going to make a legal ruling at this time that she is not recused from the underlying matter.” “However, she legally has not and we’ve -- we’ve researched the files again this morning to make sure that we were correct.” (T— page 3, lines 7-9) That fact, together with the absence of Judge Ingram’s recusal from Civil Action File No. 96-1-2243-34 constitute a genuine issue of material fact.

Yet, the Honorable James G. Bodiford later denied the existence of a genuine issue of material fact: “All right, I have reviewed the pleadings in this case, including the ANSWER. There are -- there are no genuine issues of fact for determination by a jury. Therefore, there is a demand for jury trial but the demand will be denied at this time. (T— page 12, lines 17-21)

Further, weighing of the evidence was evident in Judge Bodiford’s proposed “agreement,” which he admittedly also considered to be his Bench decision:

“If she recuses herself, let’s say that I resolve this matter and I’m going to resolve it here in a few minutes. Hopefully both, all of the parties are going to agree on how I resolve it. Whether they do or not, I’m going to resolve it. If she -- if -- I’m still going to prepare the ORDER if there is an agreement and I’m going to submit it to her. If she then recuses herself basically on her own Motion, which I think that she has the right to do even though you object, then basically we’ve got an ORDER prepared from the June case and the next judge that’s basically up in the barrel, so to speak, will then have to look at my ORDER.” (T—page 7, lines 3-15)

The Honorable James G. Bodiford made prejudicial decisions, for he self-admittedly, made findings prior to weighing the evidence. Again, weighing the evidence should have been the duty of a jury: “and I -- and I have made a finding and I have struck that basically and made a finding right when I came out, just as I made certain findings, that was not true and we’ve confirmed that and they’ve come back and said, ‘you’re exactly right, Judge Bodiford,’ so there’s no -- we all agree in this courtroom -- everybody that’s been sitting in here agrees that she has not recused herself so we don’t need a jury.” (T— page 36, line 24 thru page 37, line 7)

Appellant was denied her right to record the proceedings at her own expense. In addition to participating in the “take down” by the Official Court Reporter, Appellant had also provided for her own audio tape of the proceeding. She did visibly begin an audio recording of the proceedings after the entrance of the judge into the courtroom, and the recorder remained clearly visible on the table, with a red light to indicate recording in progress. Upon returning from the first recess, the Honorable James G. Bodiford instructed Plaintiff that she was not authorized to record the proceedings. (R—Affidavit of Marquitta L. Portman, September 28, 1998)

Upon request from the Court Reporter, Marilyn C. Roe, September 18, 1998, Plaintiff did supply the Reporter with a copy of said tape recording, of the first part of the hearing, and did supply said tape the same day. The audio recording will show a discrepancy with the testimony given by the Court’s Clerk, Jan Hollifield. The record shows that Ms. Hollifield recollects her statement to have been, “If there is a hearing I will get the pleadings from downstairs.” However, Plaintiff’s audio recording of the Court Clerk’s statement is, “Since we’re not having a hearing right now.” Plaintiff submits this discrepancy as evidence that the Honorable James G. Bodiford was conducting the hearing in a manner abnormal for courtroom procedure of a hearing. The Court’s own staff, with 12 years of experience, did not recognize the proceeding as a hearing. (T—p. 23, line 24 thru p. 24, line 1; p. 24, lines 21-22)

The audio tape also shows a discrepancy between the transcript and the proceedings immediately following the first recess. (T—Affidavit of Marquitta L. Portman, September 28, 1998, page 2, paragraphs 6-8)

The record shows that the Honorable James G. Bodiford did not allow Plaintiff to proceed with presenting her case until page 34 of the transcript. The record further shows that the Honorable James G. Bodiford made repeated interruptions to Plaintiff’s argument, in an obvious attempt to intimidate her. The Court made derogatory and sarcastic comments, in violation of the Code of Judicial Conduct, Canon 3, B, (3), (4), & (7). Such comments are evidenced throughout the transcript with the following examples cited:

1. Comments concerning the lack of prayers in Plaintiff’s Petition, (T—page 11, line 21 thru page 12, line 16, page 25, lines 1-21, and page 26, line 12-19)
2. Comments concerning Plaintiff’s education, (T—page 25, line 25 thru page 26, line 10, and page 38, line 13)
3. Comments concerning the underlying cases of divorce and modification, in an attempt to cast Plaintiff as an obnoxious and litigious party, and (T—page 29, line 21 thru page 30, line 2)
4. Sarcastic comments. (T—page 35, line 12; p. 60, lines 2-24)

After first attempting to get Plaintiff to voluntarily agree to Judge Ingram’s recusal, and upon Plaintiff’s rejection of that proposal (T—page 4, lines 13-17), Judge Bodiford did then move away from the issue of recusal, searching for another avenue with which to dismiss the jury trial demand. It was clearly Judge Bodiford’s intention to dismiss the valid jury trial demand, even if it was through his own creative efforts to do so.

The Court, by continuous recitation, did fail to allow Plaintiff ample opportunity to respond to all of the Court’s accusations, questions, and comments. Such lack of opportunity to respond to direct questions denied Plaintiff her due process rights. The Court’s diatribe was an obvious attempt to discombobulate the Plaintiff and to further intimidate her.

The Court reprimanded the Plaintiff for speaking without permission. (T—p. 28, line 16-17) However, the Court Reporter has indicated pauses in the judge’s thought and speech pattern as “ -- “ in the transcript. The transcript shows that the judge’s statements immediately preceding the reprimand are hesitant and broken, leading a reasonable person to believe it was an appropriate moment for a request to speak. Plaintiff’s only words were the beginning of such a request, “If I -- “ Immediately following the Court’s reprimand, the Honorable James G. Bodiford continued his diatribe, asking and answering his own questions. (T—page 28, line 18 thru page 31, line 2)

What I’m saying to you, Mrs. Portman, and apparently I’m not doing a good job because you and I have about [the] same level of education, if there is no issue as of right now at 10:36 -- if there is no issue to submit to a jury, why waste a jury’s time? What would the jury decide? Tell me -- tell me what facts we would give them for them to make a decision? I don’t understand. If everybody agrees right now that that was in error -- that defense number 4 was in error and the Court has made a ruling that everybody agrees that there is no issue of material fact, she did not file a recusal, what then is the judge -- what then would the jury do?” (T—page 38, lines 11-23) The Court evidenced an abuse of discretion to interpret Defense Number Four as “in error,” for no oral or written motion was made to strike Appellee’s Fourth Defense. It was error for the Court to conclude that “everybody agrees right now that that was in error,” for the Court had previously reprimanded Appellant for speaking without the Court’s permission. “Understanding” of a ruling or “acceptance” of a ruling is not synonymous with “agreement.” One of the parties to the divorce action, waiting in the courtroom, (T—p. 45, lines 12-13) later voluntarily expressed utter shock concerning Judge Bodiford’s demeanor, voice, and level of anger, further saying that she was surprised Appellant didn’t collapse in tears, as she would have.

Although Judge Bodiford’s interpretation, that “obviously this is something that’s been going on for a long time and you’re very emotional about it ...” (T—p. 54, lines 14-16), Appellant was not experiencing tears, shaking, or other “emotional” outbursts. Appellant admits to being nervous; but considering the condemnation leveled at her by Judge Bodiford from the moment he stepped into the courtroom, Appellant was also surprised with her own ability to remain calm under the pressure and continue to maintain eye contact. Appellant voiced her distress and objection to the Court’s numerous interruptions and outbursts, (T—p. 45, lines 22-24) but received only additional censure and admonishments. (T—p. 45, line 25 thru p. 48, line 14)

What began as a simple divorce action after twenty-three (23) years of marriage has now grown to multiple litigation through the apparent attempts of attorneys and officers of the Court to manage and manipulate evidence, keep hidden a VOID Final Judgment and Decree, and protect other officers of the Court from disciplinary action within the profession. Appellant seeks intervention from this Supreme Court to monitor, investigate, and correct the errors in this instant case, which by the very nature of the actions includes the underlying cases. Although Appellant understands that her position as pro se should neither help nor hurt her case, she does appeal to this Court to consider the following:

1. Appellant entered into what has now become a quagmire of litigation, believing in the American system of justice and that truth would “have it’s day in court.”
2. Appellant followed the advice of her attorneys and the rulings of the Court, even when it was contrary to her own conscience, because she believed that she could depend on the Professional Standards of Conduct and the Code of Judicial Conduct to police the profession and keep her from irreparable harm.
3. Appellant is now representing herself because she has exhausted her financial means to engage legal representation, yet her teacher’s income bars her from legal aide. She is diligently attempting to learn the law as she proceeds through the legal process. She is particularly concerned about technicalities and form of pleadings, but relies on the basic premise of substantive justice.

Due to the errors cited above, her arguments and citation of authority, Appellant shows this Court that error should be found on the issue of the jury trial. Time has now passed and Judge Ingram no longer has jurisdiction. She has recused herself from the underlying Change of Custody. Said Civil Action 96-1-2243-24 is currently before another Superior Court judge. Appellant has moved for the disqualification of the Honorable Michael Stoddard, has received a Certificate of Immediate Review from Judge Stoddard, and has applied for Appellate Review from the Court of Appeals. Said case is currently before the Supreme Court with a Petition for Writ of Certiorari.

WHEREFORE, Appellant prays that this Court, through the laws of the State of Georgia and the Constitution of the United States will restore Appellant’s rights. Appellant prays that this Court will, upon review of the Record, the Transcript, and attached exhibits:

1. issue an ORDER declaring this Court’s Opinion that the ORDER of September 25, 1998 in Civil Action File No. 96-1-5243-24 is VOID for the reason that it was filed outside the time period allowed by Georgia Law;
2. issue an ORDER declaring that Appellant was improperly denied a jury trial on the issue of Mandamus in Civil Action File No. 98-1-6130-33;
3. issue an ORDER declaring that actions of the Cobb County Superior Court, and it’s officers, have purposefully delayed the movement of Civil Action File No. 96-1-5243-24;
4. issue an ORDER declaring that the underlying Final Judgment and Decree, filed December 11, 1995 in Civil Action No. 94-1-2243-22 is VOID. As reason for such declaration, Appellant suggests that the Honorable Robert E. Flournoy, Jr. should have recused himself prior to hearing the action AND/OR, that Appellant’s attorney, Daryl Kidd, (1) intentionally withheld crucial information from the trial court at time of trial, (2) notified Appellant of his Notification of Withdrawal of Counsel, November 22, 1995 but failed to inform the Court of said action, (3) refused to provide Appellant with her file for the purpose of engaging alternative counsel, and (4) barred Appellant from her right to appeal AND/OR such other reason as deemed correct by this Supreme Court. OR in the alternative, remand this issue back to Superior Court for determination of the Disqualification of the Honorable Robert E. Flournoy, Jr.’s by proper evidentiary hearing; further, validating all subpoenas which were properly served and continually updated by notice from Appellant;
5. issue an ORDER declaring that all ORDERS in Civil Action File No. 96-1-0373-24 are VOID for the reason that the claim and complaint, being an attorney’s lien, now claiming over $20,000, based on a valid judgment in Civil Action File No. 94-1-2243-22, are nugatory; OR in the alternative, remand this issue back to Superior Court for determination of the validity of the claim of an attorney’s lien;
6. direct the State Bar and the Judicial Qualifications Commission (or other authority as this Court deem appropriate), to commence investigations, to be conducted swiftly, aggressively, and thoroughly, for the purpose of determining intent by the officers of the Cobb County Superior Court to defraud Appellant throughout the litigation of Civil Action Case Nos. 96-1-5243-24 (custody), 96-1-0373-24 (foreclosure), and 98-1-1630-33 (mandamus), State Bar fee arbitration against Daryl Kidd (Bar No. 417125) and Leslie Hobika Gleisner, State Bar grievance against Daryl Kidd (Bar No. 417125), and Juvenile Court proceedings.
7. retain jurisdiction of this case, and review any further ORDERS of the Superior Court of Cobb County in the above cited cases.

Appellant regrets the necessity of making claims of misconduct about representatives of the judicial system, for such charges appear contradictory to Supreme Court Rule 29 and are inconsistent with Appellant’s normal pursuit of courteous behavior. However, Appellant respectfully shows this Court that truth requires an exposure of misconduct. Appellant has suffered irreparable harm; to her relationship with her children, to her financial credibility, to the security of her home, to the integrity of her career, all as a result of fraudulent acts by powerful representatives of the judicial system. Appellant sincerely believed in the American system of justice, but the preponderance of the evidence has shown her that the Trial Court predetermined that she should fail in her pursuit of justice. Appellant seeks the wisdom of this Supreme Court to rectify the errors of the Trial Court.

Respectfully submitted this 4th day of January, 1999.



Marquitta L. Portman
Plaintiff / Appellant

Exhibits - all from the underlying Civil Action File No. 96-1-2243-24 (formerly 96-1-2243-34, formerly 96-1-2243-05, formerly 96-1-2243-22)

1. ORDER of September 25, 1998.
2. Motion for Declaratory Judgment, October 6, 1998.
3. RULE NISI of October 6, 1998, setting Motions hearing for November 5, 1998.
4. ORDER of October 9, 1998.
5. Motion for Reconsideration of Recusal Order of the Honorable S. Lark Ingram, October 16, 1998.
6. Motion for certification of Ruling Under O.C.G.A. 5-6-34(b), October 16, 1998.
7. Letter from Paige Moffett to Appellant, October 21, 1998.