IN THE SUPERIOR COURT FOR THE COUNTY OF COBB STATE OF GEORGIA MARQUITTA L. PORTMAN, * Plaintiff, * -VS- * CASE NO 98-1-6130-33 S. LARK INGRAM, * Defendant. *
COMES NOW, Marquitta L. Portman, Plaintiff in the above styled matter, and files this her Affidavit and shows to the Court as follows:
Affiant filed a Petition of Mandamus with the Clerk of Superior Court of Cobb County, Thursday, July 30, 1998, naming the Honorable S. Lark Ingram as Defendant. At the time of filing, the Civil Action File No. 98-1-6130-34 was assigned, thereby placing the Honorable S. Lark Ingram in a dual position as both defendant and trier.
Affiant was directed to present the Mandamus Nisi to the presiding judge, since it was evident that the Honorable S. Lark Ingram would have to recuse herself from the case. The presiding judge, the Honorable Melodie Clayton, was attending a funeral and was not available. Consequently, Affiant submitted the Mandamus Nisi to Judge Clayton via the 6th floor receptionist.
Affiant received a telephone call from Debbie, in Judge Clayton's office late in the afternoon of Friday, July 31, 1998. Debbie advised Affiant that Judge Ingram would have to recuse herself from the Mandamus. When asked by the Plaintiff if a Motion was necessary, Debbie responded that she could not give legal advice.
Affiant's research of the Code of Judicial Conduct clearly led to the understanding that Judge Ingram was expected to act with expedience to recuse herself from a case in which she was both defendant and trier. However, in an abundance of caution, Plaintiff did, by letter to the Honorable S. Lark Ingram, request the Judge's recusal and did request such action immediately, "as time [was] of the essence." Such letter, Exhibit A, was filed with the Clerk's office and placed in the U.S. mail as indicated on the Certificate of Service. A courtesy copy of the letter was also submitted to Judge Ingram's mailbox on Monday, August 3, 1998.
Affiant received verification August 7, 1998 from the Sheriff's office that service of the Petition for Mandamus had been accomplished August 5, 1998.
Because she had not received any Order of Recusal, Affiant called the office Paige Moffett, law clerk from the Honorable S. Lark Ingram, Friday, August 14, 1998, requesting information about the current state of the action.
Ms. Moffett's response to Affiant was that she believed the Judge was recusing herself, but was unable to verify that the Order of Recusal had been signed or filed. She stated to Affiant that the Judge had been in contact with the Attorney General's office concerning the recusal, to which Affiant asked if the Judge was now considering recusal from the underlying case, since recusal from the Petition of Mandamus required no deliberation, Ms. Moffett advised Affiant to secure the more current information from Trisha Crawford in the Clerk's office.
Affiant did call Trisha Crawford several times over the next week and was told that there was no recusal filed.
Affiant filed a letter, Exhibit B, to the Honorable S. Lark Ingram on Thursday, August 20, 1998, and mailed a copy as evidenced by the Certificate of Service. Due to the implied adversarial tone contained in the letter, Affiant first verified with Trisha Crawford that no recusal had been filed. Affiant has attepted to use diplomacy and courtesy in her pursuit of justice, but has at times, been left with no other recourse than to take a pro-active position in said pursuit.
At the risk of being accused of harassing a public official, Affiant continued to call Trisha Crawford throughout the following week, seeking information about the expected recusal. Affiant was assured each time that no recusal had been filed.
Affiant called Paige Moffett's office Friday, August 28, 1998 and was told by the Intern that the Judge had recused herself. Affiant asked why she had not receivede any Order. The Intern responded that perhaps it was mailed to the wrong address. Affiant stated that the correct address was clearly on all pleadings and documents in the file. The Intern excused herself from the telephone and upon returning to the conversation, she amended her response to say that the Order had been mailed to Affiant at 261 Pioneer Trail. The Intern directed Affiant to call the Clerk's office to learn which court was now assigned Civil Action File No. 98-1-6130-__. Affiant called the Clerk's office and was told that no recusal had been filed and that the Case was still assigned to Judge Ingram.
Affiant personally checked Civil Action File No. 98-1-6130-__ on Friday, August 28, 1998 at approximately 2:30 p.m. No record of an Order of Recusal was in the file, nor had the file number been changed to reflect a change of trier.
Not knowing why the Honorable S. Lark Ingram would delay the hearing of the Mandamus, Affiant proceeded to Trisha Crawford's desk to schedule the Mandamus Nisi. Trisha Crawford scheduled the Mandamus Nisi for September 9, 1998, at 9:30 a.m. and then appealed for assistance from Lisa to locate any unrecorded action in Civil Action File No. 98-1-6130-34.Trisha Crawford's networked computer was showing that the Civil Action File No. was still 98-1-6130-34, indicating that it was still assigned to Judge Ingram. At the time of actual filing of the Mandamus Nisi, it was scheduled for a hearing in Judge Ingram's court.
Lisa located an Order of Recusal, indicating that it had been reassigned to the Honorable James Bodiford. Affiant explained to Lisa and Trisha that Affiant had never received a copy of any Recusal Order and the file contained no Recusal Order. Lisa explained to Affiant that the Order had reached their desk (indicating her area of supervision) on August 24, 1998, but that it had evidently been filed back on August 19, 1998, at 4:39 p.m.
Trisha Crawford then provided Affiant with a copy of the Order and the attached Certificate of Service, and then proceeded to change the Civil Action File No. on Affiant's already filed Mandamus Nisi
The Certificate of Service attached to the Recusal Order indicates that Paige Moffett used the "Cobb County mail system," rather than the U.S. Mail to provide Affiant with a copy of the Recusal Order, the Certificate of Service indicated that the Recusal Order was placed in the "Cobb County mail system" on August 19, 1998.
Saturday, August 29, 1998, Affiant received by U.S. Mail a copy of Judge Ingram's Recusal Order from Civil Action File No,. 98-1-6130-34, bearing a "presorted meter stamp" of August 27, 1998, yet a "postal receipt strip" stamped 8-28-98. Both dates are inconsistent with the Certificate of Service signed by Paige Moffett August 19, 1998, and it is illogical to Affiant that Superior Court business was held in the "Cobb County mail system" eight days prior to being placed in the U.S. Mail. Affiant is aware that the possibility exists that the Order was mailed more than once. Although such an action would be illogical and inconsistent with normal court procedure, Affiant clearly states that she had received NO written verificaiton of Judge Ingram's Recusal until after scheduling the Mandamus Nisi.
Saturday, August 29, 1998, Affiant received by U.S. Mail Defendant's Answer to the Petition of Mandamus, such Answer bearing a U.S. Postal Meter Stamp of August 28, 1998. In said Answer, Defendant states as her Fourth Defense that "the petition is now moot since the Defendant has recused herself as the Judge in the underlying case." As of August 30, 1998, no such Recusal Order from Civil Action File No, 96-1-2232-34 has been rceived by Affiant.
Plaintiff does not willingly or knowingly waive any of her rights, including her right to a jury trial in the above styled Civil Action. Affiant continues to claim her right to a jury trial in the above styled Civil Action.
Further, Affiant sayeth not.
Respectfully submitted,
(signature by Marquitta Portman)
Marquitta L. Portman
Plaintiff
(pleading is signed and notarized and includes the appropriate Certificate of Service)