MARQUITTA L. PORTMAN, *
Appellant, *
-VS- * CASE NO S99A0440
S. LARK INGRAM, *
Appellee. *
Appellant files this response due to errors in BRIEF OF APPELLEE. Appellant hereby states her objection, not only to conspicuous misstatements, but also to several misrepresentations and innuendoes made in said BRIEF.
Appellee’s Brief, footnote on page 1: “The Appellant’s various filings indicate that there is also a custody modification proceeding, but it is not in the direct line of cases that led up to this one.”
APPELLEE was not the assigned judge for the divorce action but was the assigned judge for the custody modification. Therefore, the custody modification proceeding was in the direct line which led to this mandamus action. It was filed after APPELLEE’s refusal to act in accordance with O.C.G.A. § 15-6-21, with regard to Appellant’s Motion for Declaratory Judgment. Before proceeding with the Extraordinary Motion for New Trial in the divorce action and before proceeding with the various motions in the custody modification action, Appellant had need for the Court’s Opinion and ORDER to identify the divorce action’s proper court.
Appellee’s Brief, Page 2, lines 1-3: “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.”
Appellee claims that Appellant received a ruling in the declaratory judgment which was in Appellant’s favor. Such a claim is more than an exaggeration of error. Careful reading of the June 24, 1998 transcript is evidence that Appellant did not receive a judgment in her favor. Without an ORDER, Appellant was oblivious as to even the current trier of the divorce action. The Motion for declaratory judgment was an attempt to receive knowledge of fact and law so as to proceed in both the divorce and custody actions. If the ORDER had been in Appellant’s favor, said ORDER would have identified Judge Flournoy as disqualified from the custody modification action AND from the divorce action, since the first extended from the second. However, the transcript of June 24, 1998 clearly shows that the opinion of Appellee is that an ORDER was necessary to move the divorce action from Judge Flournoy’s court to Judge Ingram’s court.
Although the title, RECUSAL ORDER was used January 9, 1998 by Judge Robinson, it was Appellant’s understanding that Judge Flournoy had been disqualified from the custody modification. Before proceeding with the Motion for New Trial, it was necessary for Appellant to establish that Judge Flournoy had, by the nature of the two actions, been disqualified from both.
Further, the phrase ruled in her favor is misleading, for Appellant had no ruling, either in her favor or not, from which she could appeal. There was no written and filed ORDER. The mandamus action was for the purpose of obtaining a filed ORDER. Appellant is still uncertain whether the divorce action is rightly in Judge Ingram’s court, Judge Flournoy’s court, or in some other court. Appellant agrees in part with Appellee’s analogy: the task of “cleaning the Augean stables” is now of Herculean proportion due to the actions of Cobb County Superior Court officials.
Appellee’s Brief, Page 2, lines 3-13: “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: (Itemized 1-5)”
Appellant sincerely apologizes to this Supreme Court and to the Trial Court for her request for actions from the Court which are minimum expectations of our Courts of Record. Appellant’s requests were not intended to be unnecessary warnings or lectures to the Court. Appellant’s requests were, however, borne out of previous experience with Cobb County Superior Court and served to ensure that Appellant rightly receive fair and impartial judgment. As to No. 1 (Appellee’s Brief, page 2, line 6-7): Since Judge Flournoy did not abide by the Judicial Code of Conduct, is it correct to assume that another judge will do so? As to No. 2 (Appellee’s Brief, page 2, line 8-9): Should not every citizen expect a judge to act in timely order, in accordance with O.C.G.A. § 15-6-21? As to No. 3 (Appellee’s Brief, page 2, line 10-11): Is not a judge responsible for the actions of his/her staff; and in this circumstance, should the judge not have instructed the parties to remain silent or the court reporter to have continued with the take-down? As to No. 4 (Appellee’s Brief, page 2, line 12): Can a judge be both the trier and the defendant in an action? As to No. 5 (Appellee’s Brief, page 2, line 13): Is not “accordance with Georgia Law” the basis of our expectations?
Appellee’s Brief, Page 2, lines 14-17: “The fourth judge presiding over Appellant’s divorce-related complaints, Judge Bodiford, found that the issue of recusal was moot, determined that there were no issues of fact for a jury, denied the petition for mandamus and dismissed the action.”
Judge Bodiford is not the fourth Superior Court judge to preside over Appellant’s divorce-related complaints. As a brief explanation of the judges who have presided: Judge Robert E. Flournoy, Jr. heard the divorce, Judge Dorothy Robinson ruled on the disqualification, Judge S. Lark Ingram was assigned the custody modification upon Judge Flournoy’s disqualification, and Judge James G. Bodiford heard the mandamus action. Civil Action File No. 96-1-0373-24 was also part of the divorce-related litigation and was assigned to Judge Michael Stoddard.
The attempted foreclosure of Appellant’s home (Civil Action File No., 96-1-0373-24) by her divorce attorney, filed in January of 1996, endured a lengthy litigation process, only to be dismissed at the 11th hour by attorney Daryl L. Kidd. Attorney Kidd has, by his failure to refile, forfeited what he claimed to be an unpaid debt of over $20,000.00 (including interest). It is a matter of record that attorney Kidd regularly uses attorney’s liens to collect debts, many less than $500.00. The attorney’s lien filed by Kidd was in addition to a lien he enforced on Appellant’s divorce file, for which he demanded a waiver of malpractice from Appellant.
Appellant has recently filed a Complaint of Malpractice against attorney Fred D. Bentley, Jr., Civil Action File No. 99-1-0343-24. Appellant has pursued litigation to show that attorney Kidd’s lawsuit was abusive, and that attorney Bentley covered up misconduct and abuse by Kidd.
In addition, Judge James F. Morris and Judge Sallie T. Walker have issued judgments in related Juvenile Court proceedings, Judge Watson L. White issued an ORDER while acting as presiding Judge, and Judge Melodie Clayton, while presiding Judge, directed the Appellant that Judge Ingram’s recusal would be expected from the mandamus issue.
Appellee’s Brief, Page 3, line 4: “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.”
Appellant’s complaint concerning the manner of the judge who decided this case below go directly to Appellant’s submission that Judge Bodiford was predisposed as to his decision. Therefore, his manner is particularly relevant.
Appellee’s Brief, Page 3, lines 6-11 and Page 5, Section B: “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.” and “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.”
Appellant sincerely apologizes for inclusion of seemingly irrelevant facts. However, since Appellant is asking the Supreme Court to retain jurisdiction of this case, through any return to the lower court, it is appropriate that the Supreme Court understand the magnitude of error which has been wrought by actions of Cobb County Superior Court. Appellant would like to believe that she can be returned to her “home” Superior Court and that she will receive fair and impartial justice. Experience has taught her otherwise. The misconduct of one judge has received sympathy, support, and cover-up by other officers of Cobb County Superior Court because exposure would damage both a father’s and a son’s professional reputation. (Robert E. Flournoy, Jr. and Robert E. Flournoy, III) Appellant’s rights, and the rights of her children, should be no less important in the eyes of the Law. Appellant did not commit a crime, she simply sought a necessary and justifiable divorce.
Appellee’s Brief, Page 3, line 20-21: “Mandamus also will not lie unless there is a clear legal duty and there is no other legal remedy.”
O.C.G.A. § 15-6-21 directs the clear legal duty; and, without the ORDER sought by the mandamus, there is no other legal remedy such as appeal. It would be senseless to find that impeachment of the judge is the “other legal remedy,” for impeachment is cumulative action for repeated misconduct, which by it’s nature must allow individual actions to accumulate.
Appellee’s Brief, Page 4, Section A: “Mandamus is not available to correct alleged judicial error.......including a decision to have the winning party prepare the written order to memorialize an oral order.”
Inclusion of a “decision to have the winning party prepare the written order to memorialize an oral order” in this instant case of declaratory judgment is tantamount to asking a party to read the trier’s mind. Declaratory Judgment is a request for the Court’s OPINION, both explanatory and conclusive. “Winning party” is misleading, for the trier requested that the opposing attorney make decisions during the hearing. All indications during the hearing were that the opposing attorney represented the “winning party.”
Appellant pleads with this Court to recognize that Appellant had a clear legal right to expect Judge Ingram to abide by § O.C.G.A. 15-6-21, and that Judge Ingram abused her discretion by delaying the final ORDER through her refusal to abide by § O.C.G.A. 15-6-21.
Appellee’s Brief, Page 7, line 9-17: “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).”
Appellant was denied a jury trial when there was clear evidence of a genuine issue of material fact. Such action was a clear denial of due process. It was obvious to even the casual observer that Judge Bodiford was predisposed in his determination of truth, fear, discretion, opinion, and credibility. Appellee’s argument that the record “is not clear” that “the due process argument was timely raised” or “ruled on by the court below” is simply empty argument. Appellee’s misleading statement that it is “not properly before this Court” lays a hollow foundation for denying Appellant any future federal jurisdiction of due process grounds.
In addition, the numerous Citations of Authority in Appellee’s Brief are misleading. This Supreme Court’s own actions in the cited cases, and the explanation of those cases, shows that this instant case is not similar and that the arguments are misleading. Appellant will address each of the cases cited if, and when, Appellant is granted oral argument. Appellant further states that any ommission by Appellant to address additional errors is not a waiver on Appellant’s behalf or an agreement with those additional errors, but rather, a pursuit of brevity.
Appellant has submitted a request for ORAL ARGUMENT, including Appellee’s waiver of such request. Due to the misstatements, misleading comments, and innuendoes contained in Appellee’s Brief, Appellant pleads with this Court to grant Appellant the right to be heard. Please do not push this Appellant below the surface again, for such action would surely result in broad manifest injustice in Cobb County. Manipulation of the Court will undoubtedly reoccur if these fraudulent practices are not stopped by a higher authority.
Respectfully submitted, this 1st day of February, 1999.
(signed by Marquitta L. Portman)
Marquitta L. Portman, Appellant
(Certificate of Service included with filing, February 1, 1999.)