MARQUITTA L. PORTMAN, *
Appellant, *
-VS- * CASE NO S99A0440
S. LARK INGRAM, *
Appellee. *
The Appellant is a divorce litigant whose case was tried in 1995. (R. 117) Since then, Appellant has filed a number of actions and documents blaming the results of the divorce on her lawyers and the judges who heard the various matters, leaving a trail of recused judges and resigned lawyers in her wake. See Exhibit “N” to the Petition for Mandamus (R. 117-119).1
The Petition for Mandamus in this case is the third round1 in the Plaintiff’s divorce case. All were filed in the Superior Court of Cobb County. The first, a divorce action, was disposed of in 1995. Apparently dissatisfied with the outcome, Plaintiff filed another action against her former husband seeking a declaratory judgment. (R. 34). The third is this case in which the Plaintiff is suing in mandamus the superior court judge who ruled in her favor in the declaratory judgment case. In this case, Plaintiff (Appellant) sought an order from the Cobb County Superior Court requiring the Defendant, S. Lark Ingram (herein “Judge Ingram”), a judge of that court, to:
The law regarding mandamus, as it is relevant to this case is simple and has been made more so by the recently decided case of Banks v. Benham, 270 Ga. 91 (1998). The facts in this case are simple, despite the Appellant’s references to a number of irrelevant facts in her Brief. Primarily, she is complaining of the manner of the judge who decided this case below, as well as the judicial decisions of the Defendant in Mandamus, Judge Ingram, and her predecessors in the Appellant’s divorce case. Sorting the relevant facts from the irrelevant in Appellant’s Brief is a task comparable to that faced by Hercules in the cleaning of the Augean stables. For that reason, this brief will address only those issues that were raised by the Petition for Mandamus and decided below in the mandamus case. The errors that Appellant contends took place in her other two cases are not properly before this Court.
There are a number of reasons why mandamus is not available for the use that the Appellant has requested. Mandamus is an extraordinary remedy to compel a public officer to perform his duty. O.C.G.A. § 9-6-20. If the area is one in which the official has absolute discretion, mandamus will not lie unless there is a gross abuse of that discretion. O.C.G.A. § 9-6-21. A court carries out “administrative acts” when law has prescribed and defined the duty to be performed with such precision and certainty as to leave no room for exercise of judgment or discretion and “judicial acts” when it exercises discretion. Banks v, Benham, supra; Henderson v. McVay, 269 Ga. 7 (1998). Mandamus will not lie to compel “judicial acts.” Mandamus also will not lie unless there is a clear legal duty and there is no other legal remedy. Id. Mandamus is not available to correct judicial errors. Banks v. Benham, supra; Rossi v. Price, 237 Ga. 651 (1979); Barber Fertilizer v. Chason, 265 Ga. 497 (1995). Further, mandamus is not available to direct future acts when the petitioner has only a generalized fear that the official will not perform these acts correctly. See O.C.G.A. § 9-6-26
A. MANDAMUS IS NOT AVAILABLE TO CORRECT ALLEGED JUDICIAL ERROR
Mandamus will not lie to direct the exercise of discretion or stated in another fashion to review “judicial acts.” Banks v. Benham, supra; Henderson v. McVay, supra. The defendant, a superior court judge, in the exercise of her judicial discretion, has decided the issues in the Appellant’s case, including a decision to have the winning party prepare the written order to memorialize an oral order. Those were discretionary decisions and mandamus will not lie to reverse them. In addition, the question of preparing the written order is now moot because Judge Bodiford prepared the order and Judge Ingram signed it. See Appellant’s Brief at Exhibits 1 and 5. There is now nothing for this court to review on that issue. See Collins v. Lombard Corp., __ Ga. __ (1998). 1998 Ga LEXIS 1059.
Whether Judge Ingram decided her case rightly or wrongly, Appellant has no clear legal right to have the courts revisit the issue in a petition in mandamus. Therefore, mandamus will not lie to force Judge Ingram to exercise her judicial discretion in any particular way. See Grant v. Gaines, 265 Ga. 159 (1995); Scott v. McLaughlin, 258 Ga. 407 (1988). Thus, Appellant’s contentions that Judge Ingram be directed to prepare an order or investigate a lawyer’s conduct or conduct the court’s business on the Appellant’s timeline are without merit and the court below correctly refused to issue mandamus on those issues.
B. MANDAMUS IS NOT AN APPROPRIATE REMEDY TO DIRECT A JUDGE TO ABIDE BY THE JUDICIAL CODE OF CONDUCT WHEN THERE HAS BEEN NO SHOWING THAT THERE WAS A VIOLATION OF THAT CODE.
In the hearing below, Appellant admitted that she had no way of knowing that the Defendant had not reported certain matters as the Judicial Code of Conduct required. (T. 18). In fact, there was not even a showing that a report should have been made to the State Bar against a lawyer who happened to mention “murder” and “guilty” and “girlfriend” to the court clerk during a court recess. What remains is nothing more than a “mere suspicion or fear.” There was no showing that Judge Ingram had a duty to report the questioned conduct to the State Bar and refused to do so. See O.C.G.A. § 9-6-26.
In those circumstances mandamus should not issue. The trial court was correct in refusing to issue an order of mandamus. See Harmon v. James, 200 Ga. 742, 742-744 (1946).
C. APPELLANT’S CONTENTIONS REGARDING DELAY OF THIS ACTION ARE WITHOUT MERIT.
Appellant argues in her brief and enumerations of error in this Court that this action was delayed. She complains primarily about Judge Ingram’s delay in recusing herself from this case. The statute that applies to the Appellant’s contention is O.C.G.A. § 9-6-27, which requires that petitions for mandamus be heard no later than thirty days after the Mandamus Nisi is granted. In this case, the record shows that a Mandamus Nisi was issued on August 28, 1998 (R. 205) and the trial was held on September 16, 1998, less than thirty days later. Thus, the record on its face refutes the Appellant’s arguments. With regard to the delay in recusal, it occurred fourteen days after Judge Ingram was served with the Petition for Mandamus. Appellant wants to extend the period to the date from which the Petition was filed until the date Appellant learned of the recusal order. That argument has no support in the law or logic. The time taken by Judge Ingram to recuse herself was consistent with Uniform Superior Court Rule 25 and which the trial judge found to be “very reasonable” considering the duties of a superior court judge in the Cobb Judicial Circuit. (T. 43).
D. THE APPELLANT DID NOT HAVE A RIGHT TO A JURY TRIAL IN HER MANDAMUS PROCEEDING AND HAS NOT BEEN DENIED DUE PROCESS BY THE SUPERIOR COURT’S DECISION IN HER CASE.
Appellant enumerates as error the denial of her request for a jury trial. In petitions for mandamus, jury trials are available only if an issue of fact is involved. O.C.G.A. § 9-6-27. The court below correctly determined that there were no issues of fact. In her Brief on appeal, Appellant identifies as an issue of fact whether Judge Ingram had recused herself from the “underlying action.” Appellants Brief at pp. 20 and 21. Judge Ingram mistakenly had alleged in her answer that she had recused herself from the underlying case. However, it became evident in the mandamus proceeding that she was in error and her counsel so admitted. Thus, what might have been an issue of fact was established as an error. Appellant’s position in the superior court was that Judge Ingram had not recused herself from the underlying action and the Appellant did not want her to. (T. 3). Therefore, the Appellant won that issue below.
As the court below noted, it would have been a waste of judicial resources to empanel a jury on the issue of whether the Defendant had recused herself from the underlying case. (T. 37). The record showed affirmatively that the Defendant had recused herself from the mandamus action in which she was a defendant, but had not recused herself from the underlying action out of which the mandamus arose. She agreed with the record.
The Appellant’s position on appeal is untenable. She wants a jury trial on an issue that is resolved by the record, is irrelevant to mandamus and that she won below. Under those circumstances it is clear that Appellant was deprived of no legal right by the ruling of the court below.
The Appellant alleges on appeal that denial of a jury trial deprived her of due process. It is not clear from the record that the due process argument was timely raised and appropriately argued below. (T. 34-39). Certainly it was not ruled on by the court below. (R. 281-284). Under those circumstances it is not properly before this Court for review. See Bohannen v. State, 269 Ga. 130 (1998).
Further, due process requires only notice and an opportunity to be heard. A state may limit the process with reasonable procedural rules without running afoul of due process guarantees. See, e.g. Department of Medical Assistance v, Columbia Convalescent Center, 265 Ga. 638 (1995). Appellant has had due process.
Based on the foregoing argument and citation of authority the Appellee urges this Court to affirm the decision of the superior court below.
Respectfully submitted,
THURBERT E. BAKER 033887
Attorney General
(signature by Dennis R. Dunn)
DENNIS R. DUNN 234098
Deputy Attorney General
(signature by Dennis R. Dunn for Kathryn L. Allen)
KATHRYN L. ALLEN 011050
Senior Assistant Attorney General
(Record includes Certificate of Service, January 25, 1999)