Post v. State v. State v. State , 298 Ga. 241 ( 2015 )

In the Supreme Court of Georgia
Decided: November 16, 2015
S15A1189. POST v. THE STATE.
S15A1190. FRIPP v. THE STATE.
S15A1193. BROWN v. THE STATE.
NAHMIAS, Justice.
Appellants Desmond Post, Rolaunda Fripp, and Joseph Brown were
indicted along with Darchelle Arnold and Jarvis Butts for numerous crimes
including felony murder in connection with an armed robbery on December 9,
2009, that led to the shooting deaths of Mark Jones and Christopher Jackson.1
On October 6, 2010, the Governor appointed Reuben M. Green, who was
campaigning for election to the Cobb County State Court, to fill a vacancy on
the Cobb County Superior Court, and Appellants’ cases were assigned to Judge
Green. On April 18, 2011, two months before the scheduled trial date, Post filed
a motion for recusal on the grounds that Judge Green was employed by the Cobb
1
Appellants’ co-indictee Arnold pled guilty and testified for the State at Appellants’ trial,
and the trial court’s denial of her motion to withdraw her guilty pleas was affirmed by this Court in
Arnold v. State, 292 Ga. 95 (734 SE2d 382) (2012). Butts was tried along with Appellants, and we
recently affirmed his convictions for felony murder and other crimes in Butts v. State, Case No.
S15A1192, decided Oct. 5, 2015. The crimes are described in detail in our opinion in Butts. See
id., slip op. at 2-7.
County District Attorney’s Office when Post’s case was being handled by that
office and that the Cobb County District Attorney, Patrick H. Head, was serving
as the treasurer for “Judge Green’s election campaign.” At the final motions
hearing six weeks later, Judge Green engaged the parties in a lengthy discussion
about his possible recusal before orally denying Post’s motion. After the
hearing, Fripp and Brown filed motions for recusal on the ground that Judge
Green had created an appearance of impropriety by defending himself against
the recusal allegations. On September 2, 2011, Judge Green entered detailed
orders denying Appellants’ recusal motions, and the judge also denied their
requests for a certificate of immediate review. Appellants proceeded to trial in
March 2012, where the jury found them guilty of all charges except malice
murder, and their motions for new trial were denied in November 2014. They
now appeal, enumerating as error, among other things, the recusal issues.2
2
Arnold and Butts did not file any recusal motions in the trial court or raise any recusal
issues on appeal. See Arnold, 292 Ga. at 95 (describing Arnold’s claims of error); Butts, slip op. at
1 (describing Butts’s claims of error). See also State v. Hargis, 294 Ga. 818, 822-823 (756 SE2d
529) (2014) (“Even after [the defendant] learned of the grounds for the potential disqualification of
the trial judge, he apparently decided to take his chances with the same judge . . . . That was his
choice to make, but he could not do so and still preserve the disqualification issue for review in the
appellate courts. To hold otherwise would be to sanction gamesmanship. . . . The idea that a party
could allow a judge whom the party believes to be disqualified to continue to preside over the case
without objection, only later to urge the disqualification, is inconsistent with the principles of fair
play and judicial economy that are embodied in the requirement that a motion to recuse be filed
2
As explained below, we agree with Appellants that Judge Green erred in
failing to refer their recusal motions for reassignment to another judge to decide.
Moreover, based on the transcript of the final motions hearing, the accuracy of
which is not disputed, we further conclude that, upon reassignment to another
judge, Fripp’s and Brown’s recusal motions would have to be granted.
Accordingly, we vacate the order denying Post’s recusal motion, we reverse the
orders denying Fripp’s and Brown’s recusal motions, we therefore vacate
Appellants’ convictions, and we remand these cases with direction.
1. We first review the basic procedural and substantive rules governing
motions to recuse superior court judges in Georgia.3 Rule 25.3 of the Uniform
Superior Court Rules explains that when the trial judge assigned to a case is
presented with a recusal motion and an accompanying affidavit, “the judge shall
temporarily cease to act upon the merits of the matter” and determine
“immediately”: (1) whether the motion is timely; (2) whether the affidavit is
legally sufficient; and (3) whether the affidavit sets forth facts that, if proved,
promptly.” (citations omitted)).
3
We note that the terms “recuse” or “recusal” and “disqualify” or “disqualification” are used
interchangeably in this context.
3
would warrant the assigned judge’s recusal from the case. See Horn v.
Shepherd, 294 Ga. 468, 471 (754 SE2d 367) (2014); Birt v. State, 256 Ga. 483,
484 (350 SE2d 241) (1986). If all three criteria are met, “another judge shall be
assigned to hear the motion to recuse.” USCR 25.3. The decision about
referring a recusal motion for reassignment to another judge does not involve
an exercise of discretion by the judge whose recusal is sought. See Mayor of
Savannah v. Batson-Cook Co., 291 Ga. 114, 119 (728 SE2d 189) (2012).
Rather, whether the three threshold criteria have been met is a question of law,
which an appellate court reviews de novo. See id.To be timely, a recusal motion and accompanying affidavit must be filed
and presented to the judge “not later than five (5) days after the affiant first
learned of the alleged grounds” for the judge’s recusal “and not later than ten
(10) days prior to the hearing or trial which is the subject of [the] recusal.”
USCR 25.1. Failure to meet these deadlines may be excused, but only if the
motion and affidavit establish “good cause” for the delay, and “[i]n no event
shall the motion be allowed to delay the trial or proceeding.” Id. To be legally
sufficient, an affidavit accompanying a recusal motion must contain “the three
elements essential to a complete affidavit: ‘(a) a written oath embodying the
4
facts as sworn by the affiant; (b) the signature of the affiant; and (c) the
attestation by an officer authorized to administer the oath that the affidavit was
actually sworn by the affiant before the officer.’” Batson-Cook Co., 291 Ga. at
120 (citation omitted). The affidavit or affidavits accompanying the recusal
motion must “fully assert the facts upon which the motion is founded” and
present “all evidence” on the motion. USCR 25.1.
Allegations consisting of “bare conclusions and opinions” that the
assigned judge is biased or prejudiced for or against a party, USCR 25.2, “are
not legally sufficient to support a recusal motion or to justify forwarding the
motion for decision by another judge.” Horn, 294 Ga. at 472. In all other
respects, however, the assigned judge must take the motion at face value,
treating it as though “all of the facts set forth in the affidavit are true.” USCR
25.3. See Batson-Cook Co., 291 Ga. at 120-121 (“The rationale for requiring
the judge to take as true the affidavit’s facts even when the judge knows the
facts are not true ‘is easy to divine. To commit to the judge a decision upon the
truth of the facts gives chance for the evil against which the [rule] is directed.’
Berger v. United States, 255 U.S. 22, 36 (41 SCt 230, 65 LE 481) (1921).”).
In deciding whether this assumed state of facts would authorize an order
5
requiring recusal, the assigned judge is to be guided by Canon 3E of the current
Georgia Code of Judicial Conduct.4
Current Canon 3E (1) – Rule 2.11 (A) in the revised Code – says generally
that “[j]udges shall disqualify themselves in any proceeding in which their
impartiality might reasonably be questioned,” followed by a non-exclusive list
of specific situations in which recusal is required. The standard is an objective
one. The facts “must be considered from the perspective of a reasonable person
rather than from the perception of interested parties or their lawyer-advocates,
or from the subjective perspective of the judge whose continued presence in the
case is at issue.” Batson-Cook Co., 291 Ga. at 121 (citation omitted). The
operative question is whether “a fair-minded and impartial person would have
a reasonable perception of a judge’s lack of impartiality based upon objective
facts set forth in the affidavit or reasonable inferences therefrom.” Id.If the motion and affidavit, taken at face value, satisfy the three threshold
criteria, the assigned judge must refer the motion for reassignment and may not
4
A substantially revised Georgia Code of Judicial Conduct, which can be found at
www.gajqc.com, will take effect on January 1, 2016. Among other things, the Georgia Code has
been reorganized to correspond to the format of the ABA Model Code of Judicial Conduct, which
has been adopted by most other states. The current Code applies to these cases, but we will also
reference the corresponding provisions of the revised Code.
6
“oppose the motion.” USCR 25.3. The judge whose recusal is sought may not
respond to the motion or attempt to refute the allegations, which “stand denied
automatically,” id., no matter how false or even defamatory the judge might
know or perceive the allegations to be. See Isaacs v. State, 257 Ga. 126, 128
(355 SE2d 644) (1987) (recognizing that judges have an interest in protecting
their reputations and that “judges may be sorely tempted to respond to motions
to recuse which they perceive as gratuitously defamatory,” but concluding that
“these factors are heavily outweighed by the necessity of preserving the public’s
confidence in the judicial system”); Horn, 294 Ga. at 473 (noting that “there are
. . . remedies for frivolous or vexatious recusal litigation,” including a possible
award of attorney fees and litigation costs under OCGA § 9-15-14). See also
USCR 25.7 (authorizing voluntary recusal on the judge’s own motion or on the
motion of a party, which “shall not be construed as either an admission or denial
to any allegations which have been set out in the motion”).
If the recusal motion satisfies the test for referral to another judge, the
judge whose recusal is sought “shall neither select nor participate in the
selection of the judge to hear the motion.” USCR 25.5. In a judicial circuit with
three or more superior court judges like the Cobb Judicial Circuit, see OCGA
7
§ 15-6-2 (11), a judge must be assigned to hear and decide the motion using the
circuit’s “existing random, impartial case assignment method,” USCR 25.4 (c).5
That judge may decide the motion solely on the affidavits, but also has
discretion to convene an evidentiary hearing. See USCR 25.6. Either way, after
considering the evidence, the judge must rule on the merits of the motion and
“make written findings and conclusions.” Id. If the motion is denied, the
original judge will continue to preside over the case. If the motion is granted,
the judge originally assigned to the case is recused, and another judge must then
be selected to preside over the case following the same procedure that was used
to select the judge who decided the recusal motion. See id. The decision of the
judge assigned to hear the recusal motion – the ruling on the merits of the
motion, based on findings about which allegations are in fact true and what
inferences should in fact be made – is reviewed on appeal only for abuse of
discretion. See Batson-Cook Co., 291 Ga. at 119.
With these rules in mind, we now consider the motions filed by Appellants
5
If the circuit does not have random, impartial case assignment rules, “[t]he chief judge of
the circuit shall select a judge within the circuit to hear the motion.” USCR 25.4 (C) (1). Further
provision is made for situations where the chief judge is the judge whose recusal is sought and where
the recusal motion pertains to all active judges in the circuit. See USCR 25.4 (C) (2) - (3).
8
to recuse Judge Green.
S15A1189. Post v. State.
2. Post contends that Judge Green erred in finding that he failed to
satisfy the three threshold criteria that trigger the requirement to refer a recusal
motion for reassignment to another judge. We agree.
(a) Post filed his recusal motion on April 18, 2011.6 The motion
said, “This action to recuse is being brought within five days of discovery of
recusal grounds by defense counsel.” Post did not file a separate affidavit, but
at the end of the motion, under the heading “AFFIDAVIT,” his counsel signed
a notarized statement under oath verifying that “the facts alleged in the above
and foregoing Motion to Recuse are true and correct.” The motion said that
Judge Green was employed by the Cobb County District Attorney’s Office from
the inception of Post’s case until the time that Judge Green was sworn in as a
judge.
The motion also said that Judge Green’s campaign committee submitted
a disclosure form to the Georgia Government Transparency and Campaign
6
Post filed and purported to join other recusal motions after the final motions hearing, but
he does not enumerate the denial of those motions as error on appeal, and we therefore do not
address them. See Hargis, 294 Ga. at 822-823.
9
Finance Commission in 2010 that listed the address of the Cobb County District
Attorney’s Office as the address for “Judge Green’s election campaign” and the
treasurer as “Patrick H. Head,” the Cobb County District Attorney, referring to
the attached printout of a page from the Commission’s website titled “Campaign
Reports and Registration Information” and the certification of the printout by
the Commission’s executive secretary, both of which were dated April 13, 2011.
The “Candidate Name” on the printout was “Green, Reuben M.”; the “Office
Sought” was “Judge Superior Court” with “Circuit: Cobb” underneath; the
“Status” was “Active”; and “Reuben Green for State Court Judge” was listed
under “Committee Information.” Judge Green’s wife was listed under
“Chairperson Information,” followed by a residential address, and “Patrick H.
Head” was listed under “Treasurer Information,” followed by a street address
that the motion alleged was that of the District Attorney’s Office. The “Filer”
listed on the certification was “Reuben M. Green,” and the “Office Sought” was
“Judge Superior Court / Circuit: Cobb.” The motion argued:
Clear inferences drawn from the Court’s campaign disclosure . . .
are that the D.A.’s Office is intimately involved in the judge’s
campaign[;] that campaign money for Judge Green should be
delivered to the D.A.’s Office’s address; and that the trial judge’s
campaign finances are managed by, and at, the D.A.’s Office.
10
Financial decisions as to the judge’s campaign, and therefore his
career, are, at least in part, under the control of the Cobb County
District Attorney.
(Emphasis in original.)
(b) Judge Green found that this recusal motion was untimely
because it did not state the date that Post’s counsel first learned of the alleged
grounds for recusal. However, the motion was filed on April 18, 2011; Post’s
counsel verified that the motion was filed “within five days of discovery of
recusal grounds by defense counsel”; and the documents attached to the motion
were dated April 13, 2011. Thus, nothing in the motion or its attachments
showed that the grounds were discovered prior to April 13. Taken at face value,
the motion was timely under USCR 25.1, and Judge Green therefore erred in
finding it untimely.7
7
The order denying Post’s recusal motion says that Judge Green relied on the statement by
Post’s counsel at the final motions hearing on May 31, 2011, that he “had to spend time dealing with
[the Commission’s executive secretary], sending her subpoenas, going back and forth with her,” to
conclude that Post or his counsel learned of the alleged grounds for recusal prior to April 13. But
such a finding goes beyond the contents of the motion and affidavit taken as true and thus could not
be relied on in determining if the motion met the criteria for referral to another judge. Cf. Berger,
255 U.S. at 36 (explaining that materials outside the motion and affidavit may not be considered by
the judge presented with a motion seeking his recusal). See also id. at 40 (Day, J., dissenting) (“As
I understand the opinion of the court, notwithstanding the admissions of counsel, and the sworn
stenographic report of what took place, the affidavit must be accepted . . . .”).
The order also criticized Post for not requesting a hearing when he filed his motion on April
18 and instead waiting until the final motions hearing six weeks later “to have the motion heard,
along with all of the other motions filed in this multi-defendant case, just thirteen (13) days before
11
(c) Judge Green also found that Post’s motion was not supported
by a legally sufficient affidavit. As correctly said in the order denying the
motion, “The Uniform Superior Court Rules could not be clearer in their
requirement that the motion be accompanied by an affidavit.” Thus, it is
certainly the better practice for a party submitting a recusal motion to file along
with the motion one or more separate affidavits stating the specific facts on
which the motion is based and showing clearly that the three threshold criteria
have been met. Nevertheless, substance prevails over nomenclature, and this
Court has previously held that “a sworn verification that the facts contained in
the foregoing [recusal] motion are true and correct to the best of the movant-
affiant’s knowledge and belief” substantially complies with the accompanying
affidavit requirement of USCR 25.1. Birt, 256 Ga. at 484-485. Post’s motion,
a trial that was specially set seven (7) months earlier.” But the Uniform Superior Court Rules do not
contemplate a hearing on a recusal motion by the judge whose recusal is sought. See USCR 25.3
(requiring a judge presented with a motion seeking his recusal to “temporarily cease to act upon the
merits of the matter and . . . immediately determine” whether the three threshold criteria for referring
the motion for reassignment have been met); Henderson v. State, 295 Ga. 333, 334 (759 SE2d 827)
(2014) (holding that the rules “only contemplate an evidentiary hearing if it is determined that the
motion satisfies the three threshold requirements and the recusal motion is assigned to another
judge”). See also USCR 25.5 (limiting the role of the judge whose recusal is sought “[i]n the
instance of any hearing on a motion to recuse” held by the judge assigned to decide the motion).
Moreover, Post filed his motion almost two months before the scheduled trial date and six weeks
before the final motions hearing. See USCR 25.1 (requiring a recusal motion to be filed “not later
than ten (10) days prior to the hearing or trial which is the subject of recusal” unless good cause is
shown for filing it later).
12
with the sworn verification by his counsel, contained “the three elements
essential to a complete affidavit: ‘(a) a written oath embodying the facts as
sworn by the affiant; (b) the signature of the affiant; and (c) the attestation by
an officer authorized to administer the oath that the affidavit was actually sworn
by the affiant before the officer.’” Batson-Cook Co., 291 Ga. at 120.
Accordingly, Judge Green erred in finding that Post did not satisfy the
accompanying affidavit requirement.
(d) Finally, Judge Green concluded that the facts alleged, if
proved true, would not support an order requiring his recusal. We again
disagree.
Judge Green properly rejected the first alleged ground for recusal – his
prior employment by the Cobb County District Attorney’s Office when the
office was handling Post’s case – based on this Court’s then-recent decision in
Gude v. State, 289 Ga. 46 (709 SE2d 206) (2011), because Post did not allege
that Judge Green, “while still a prosecutor, was personally involved in some
aspect of the criminal matter or served in a supervisory role over another lawyer
while that lawyer was personally involved in some aspect of the criminal
matter.” Id. at 49. As Gude made clear, an allegation by a criminal defendant
13
that the assigned judge was previously employed by the prosecuting attorney’s
office at a time when the defendant’s case was being prosecuted is, without
more, legally insufficient to require the judge to refer the motion for
reassignment. See id. at 47-49.
Post’s second alleged ground for recusal presents a more difficult
question. Georgia has judicial elections, elections mean campaigns, and to be
successful, campaigns require support, financial and otherwise. As a practical
matter, “most donors [in judicial campaigns] are lawyers and litigants who may
appear before the judge they are supporting.” Williams-Yulee v. Florida Bar,
575 U.S. ___, ___ (135 SCt 1656, 1667, 191 LE2d 570) (2015). Allegations
that a party or a party’s attorney made unexceptional campaign contributions or
provided commonplace forms of non-monetary support during a judge’s election
campaign ordinarily are insufficient to require referring a recusal motion for
reassignment to another judge. See Gude, 289 Ga. at 50 (holding that an
allegation that the district attorney whose office was prosecuting the defendant
“gave financial and/or other support to the campaign to elect” the judge was
legally insufficient to require the judge to refer the recusal motion for
reassignment); Patterson v. Butler, 187 Ga. App. 740, 740-741 (371 SE2d 268)
14
(1988) (same for an allegation in a civil case that one of the defendants had
worked in the judge’s political campaigns before the judge took the bench). See
also Zaias v. Kaye, 643 S2d 687, 687 (Fla. Dist. Ct. App. 1994) (“The fact that
an attorney made a campaign contribution or served [as one of over 60 members
of a judge’s re-election campaign committee] does not, without more, require
disqualification.”).
Indeed, as the United States Supreme Court recognized in Williams-
Yulee:
A rule requiring judges to recuse themselves from every case in
which a lawyer or litigant made a campaign contribution would
disable many jurisdictions. . . . Moreover, [such a rule] could create
a perverse incentive for litigants to make campaign contributions to
judges solely as a means to trigger their later recusal – a form of
peremptory strike against a judge that would enable transparent
forum shopping.
135 SCt at 1671-1672. See also Richard E. Flamm, Judicial Disqualification:
Recusal and Disqualification of Judges § 9:5, at 249 (2d ed. 2007) (“Generally,
the mere fact that a party or attorney participated in a judge’s election campaign
does not, in and of itself, present a legally sufficient ground for disqualification
15
when that party or lawyer later appears in a proceeding before the judge.”).8
Post’s recusal motion, however, alleged more than ordinary campaign
contributions and non-monetary support from a party’s attorney. Post alleged
that Patrick Head, the district attorney whose office was prosecuting him, was
serving as the treasurer for “Judge Green’s election campaign,” and Post
supported that allegation with documents which indicated on their face that as
8
On September 8, 2011, shortly after Judge Green entered the order denying Post’s recusal
motion, a new provision governing disqualification based on campaign contributions or support was
added to the Georgia Code of Judicial Conduct. The current Canon 3E (1) (d) says:
Judges shall disqualify themselves in any proceeding in which their impartiality
might reasonably be questioned, including but not limited to instances where . . . the
judge has received or benefited from an aggregate amount of campaign contributions
or support so as to create a reasonable question as to the judge’s impartiality. When
determining impartiality with respect to campaign contributions or support, the
following may be considered: (i) amount of the contribution or support; (ii) timing
of the contribution or support; (iii) relationship of contributor or supporter to the
parties; (iv) impact of contribution or support; (v) nature of contributor’s prior
political activities or support and prior relationship with the judge; (vi) nature of case
pending and its importance to the parties or counsel; (vii) contributions made
independently in support of the judge over and above the maximum allowable
contribution which may be contributed to the candidate; and (viii) any factor relevant
to the issue of campaign contributions or support that causes the judge’s impartiality
to be questioned.
There is also commentary elaborating on this provision, and several of the terms used in the canon,
including “contribution” and “support,” are defined in the Terminology section of the Code. As the
commentary explains, recusal based on campaign contributions is mandated only if “(a) a judicial
candidate has knowledge of a contribution made to the candidate or the candidate’s campaign
committee that exceeds the maximum allowable contribution permitted by law and, (b) after having
such knowledge, the violation is not corrected in a timely manner (i.e., usually accomplished by
returning the contribution).” The legal limits on contributions to judicial (and other) election
campaigns are set forth in OCGA § 21-5-41. The same provisions appear with similar language in
the revised Code as Rule 2.11 (A) (4), comments [8] - [11], and in the Terminology section.
16
of five days before the motion was filed, the district attorney, using the address
of the district attorney’s office, was serving as the treasurer of Judge Green’s
active campaign for the Superior Court, not the State Court seat the judge was
seeking when he was appointed.
Head’s status as the judge’s current campaign treasurer raised at least an
inference of a relationship with the judge different from and more significant
than that of general supporters and contributors. Under Georgia law, each
election campaign committee is required to have a chairperson and a treasurer,
whose names and addresses must be filed with the Government Transparency
and Campaign Finance Commission. See OCGA § 21-5-30 (b).9 If there is a
vacancy in either position, the committee is barred from accepting campaign
contributions. See id. The treasurer of a campaign committee is required to
“keep detailed accounts, current within not more than five business days . . . ,
of all contributions received and all expenditures made by or on behalf of the
candidate or committee” as well as “detailed accounts of all deposits and of all
withdrawals made to the separate campaign depository and of all interest earned
9
The same person may serve as both chairperson and treasurer, and that person may be the
candidate himself. See OCGA § 21-5-30 (b).
17
on any such deposits,” unless the candidate performs those tasks himself.
OCGA § 21-5-32 (a). These accounts are subject to inspection by the
Commission. See OCGA § 21-5-32 (b). Campaign contribution disclosure
reports, which are required to list and provide detailed identifying information
about each campaign contribution or expenditure of more than $100, must be
filed regularly by the candidate himself or by the chairperson or treasurer of his
campaign committee. See OCGA § 21-5-34 (a) (1) (A), (3), (b) (1) (A) - (F).
These financial reporting requirements continue after the election, even if the
candidate loses the election or leaves office; reports must be filed until all
contributions have been properly expended. See OCGA § 21-5-34 (a) (2) (B),
(3), (i) (1) - (2). Indeed, it is not unusual for the financial components of a
campaign to continue well after the election components of the campaign have
ended, as the campaign pays off debts (which may require additional
fundraising), refunds or otherwise expends contributions, or organizes for the
next election.
In light of these statutory provisions, it is a reasonable inference that a
person selected to serve as the treasurer of a judge’s existing campaign
committee is playing a significant role in managing the financial activities of the
18
judge’s campaign, and the financing of a campaign may be critical to its success
in keeping the judge in office. If the campaign treasurer is a party or the lawyer
for a party in a case pending before the judge, this inference, if not rebutted by
other information presented with a recusal motion and also assumed to be true,
is enough to require referring the motion for reassignment to another judge so
that the relevant facts may actually be determined. See Neiman-Marcus Group,
Inc. v. Robinson, 829 S2d 967, 968 (Fla. Dist. Ct. App. 2002) (“We hold that
where a judge selects an attorney to serve in the special role of campaign
treasurer in an election campaign, and the campaign is not remote in time from
the date the relationship is revealed to the opposing party, disqualification is
warranted.”). See also Massongill v. County of Scott, 991 SW2d 105, 109 (Ark.
1999) (noting “the potential for the appearance of impropriety in the relationship
between the trial judge and appellees’ counsel,” who “served as the judge’s
campaign treasurer in an election campaign,” but not requiring recusal under
Arkansas law in the absence of a showing of bias or prejudice); Flamm, supra,
§ 9:5, at 251 & nn.16-19 (collecting cases suggesting that recusal may be
required where a party or attorney is serving or has served in a select leadership
role in a judge’s ongoing or recent election campaign).
19
When the fact-finder – the judge to whom the recusal motion is reassigned
– determines what relevant facts are actually true and properly established, and
what inferences from those facts should actually be made, it may turn out that
the treasurer plays no especially important role in an ongoing or recent
campaign. It could be that the designation as treasurer was entirely honorary or
otherwise nominal and the tasks that could be performed by the treasurer are in
fact all performed by the candidate, the campaign chairperson, or campaign
employees or contractors; that the campaign has been defunct for a significant
period; or that other facts exist which, once made known to the fact-finder (and
the public), would dissipate the appearance of partiality that might otherwise
exist. On the other hand, it may turn out that, other than the candidate judge, the
most important person in a particular campaign is the treasurer.10
10
Depending on the role of a treasurer in a particular judicial election campaign, which is
something that the judge should know, the judge may be advised to disclose the treasurer’s
involvement in any pending cases to the parties along with any additional relevant facts regarding
the treasurer’s actual role in the campaign. The commentary to current Canon 3E (1) says, “Judges
should disclose on the record information that the court believes the parties or their lawyers might
consider relevant to the question of disqualification, even if they believe there is no legal basis for
disqualification.” We note that shortly after Judge Green denied Post’s recusal motion, this
commentary was amended to add, “The public filing of a ‘campaign contribution disclosure report’
or ‘financial disclosure statement’ [as defined by OCGA § 21-5-3] shall be deemed a disclosure to
all parties of the information contained therein.” (The same language about disclosure and about
publicly filed reports appears in comment [2] to Rule 2.11 of the revised Code of Judicial Conduct.)
Moreover, some bases for recusal, once disclosed, may be waived by the parties. Current Canon 3
(F) (Rule 2.11 (C) in the revised Code), entitled “Remittal of Disqualification,” says:
20
In this case, there are a number of undeveloped but potentially material
facts bearing on the recusal question that need to be determined, possibly by
taking evidence. See USCR 25.6 (authorizing a judge assigned to consider a
recusal motion involving another judge to “convene an evidentiary hearing”).
In particular, it appears that questions remain regarding Judge Green’s campaign
committee or committees, what judicial offices they were for and whether and
when their activities were terminated, and the scope and nature of Head’s
functions as treasurer.11
Post’s motion to recuse Judge Green alleged that the district attorney
whose office was prosecuting him was serving as treasurer for the judge’s
Judges disqualified by the terms of [Canon] 3E 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
of 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 not be disqualified, and the judge is then willing to participate, the
judge may participate in the proceeding. The agreement shall be incorporated in the
record of the proceeding.
11
For example, the order denying Post’s recusal motion states that the Campaign Finance
Commission document he attached “indicates that Patrick H. Head, current Cobb County District
Attorney, served as campaign treasurer for this Court’s campaign for a seat on the State Court of
Cobb County, which terminated upon its appointment to the current seat on the Superior Court of
Cobb County.” But that document does not indicate on its face that Head served only on a State
Court campaign and does not indicate that any campaign had terminated. Those may be the actual
facts, but that must be determined by a new judge.
21
election campaign. We hold that, taking that allegation as true and in the
absence of additional information about the campaign or Head’s involvement
in it (which USCR 25.1 required Post to include in the affidavit if such
information was known to him), the motion presented a ground sufficient to
potentially authorize an order requiring Judge Green’s recusal.12
(e) To summarize, taken at face value, Post’s April 18, 2011
recusal motion was timely, he substantially complied with the accompanying
affidavit requirement, and the motion included an allegation – that the district
attorney prosecuting him was serving as treasurer for the trial judge’s election
campaign – that was potentially sufficient to warrant the judge’s recusal.
Accordingly, Judge Green was required to refer the motion for reassignment to
12
We note that Post filed what he called an “amended affidavit” on May 20, 2011, reporting
on discussions he had with the executive secretary of the Campaign Finance Commission and
attaching additional documents regarding Judge Green’s campaign and the district attorney’s role
in it. But the rules make no provision for such an amendment, stating instead that the affidavit
accompanying the recusal motion must present “all evidence thereon” and “fully assert the facts upon
which the motion is founded.” USCR 25.1. If new information relevant to recusal becomes known
to a party, a new recusal motion should be filed within five days (absent a showing of good cause
for delay). Post did not file a new motion with his “amended affidavit” (and he did not explain why
the information in that affidavit had not been included in his original April 18 motion and affidavit).
Post also filed an “amendment” to his April 18 recusal motion and affidavit on June 2, 2011,
attaching a newspaper article from April 12 regarding Judge Green’s work as an assistant district
attorney, but even construed as a new recusal motion, it would be untimely. The June 2 document
does not state that Post learned of the six-week-old article in the preceding five days; to the contrary,
it states that his counsel read the article in the online edition of the newspaper on April 13.
22
another judge who could then decide the recusal motion on its merits, after an
evidentiary hearing or other development of the record, based on facts found to
be true as opposed to facts merely assumed to be true. We therefore vacate
Post’s convictions and Judge Green’s order denying his recusal motion, and we
remand this case to the trial court to be referred for the assignment of a judge
other than Judge Green to decide the recusal motion.
If the judge assigned to decide the recusal motion denies it, then Judge
Green will continue to preside over the case, the judgments of conviction against
Post should be re-entered, and he may file a new appeal enumerating the denial
of the recusal motion as error along with the enumerations of trial error that he
raised in this appeal. See Parker v. State, 296 Ga. 586, 596-597 (769 SE2d 329)
(2015); Moore v. State, 290 Ga. 805, 809-810 (725 SE2d 290) (2012). If the
recusal motion is granted, however, Post’s case must be reassigned, all
proceedings and orders after the filing of the motion would be void as to Post,
and his case would start over from that point before the new judge assigned to
the case. See Propst v. Morgan, 288 Ga. 862, 864 (708 SE2d 291) (2011) (“[I]f
a party files a motion to recuse a trial judge and the motion is denied, but it is
later determined that the judge should have been disqualified to act in the case,
23
all proceedings after the filing of the motion to recuse are ‘invalid and of no
effect.’” (citation omitted)).
S15A1190. Fripp v. State.
S15A1193. Brown v. State.
3. Fripp and Brown contend that Judge Green erred in denying their
recusal motions based on Judge Green’s statements at the final motions hearing
on May 31, 2011. Judge Green correctly found that these motions were timely
and accompanied by legally sufficient affidavits.13 Thus, the only issue is
whether Judge Green erred in ruling that the affidavits’ factual allegations, if
proved, would not support an order requiring his recusal. Based on the hearing
transcript, the accuracy of which is not disputed, we conclude that Judge Green
was required to refer the motions for reassignment, and that the judge who
should have heard the motions would have had no choice but to grant them.
Accordingly, a remand for the motions to be heard by a new judge is
13
At the final motions hearing, Judge Green granted Fripp’s and Brown’s requests that a
transcript of the hearing be prepared on an expedited basis and that they be given leave to file their
recusal motions beyond the normal five-day deadline to enable them to use the transcript. See USCR
25.1 (allowing exceptions to the five-day deadline for good cause shown). On June 3, 2011, the
court reporter certified a transcript of the portion of the hearing related to recusal. On June 6, Brown
filed his motion for recusal based on, among other things, what occurred at the hearing, along with
an accompanying affidavit from his counsel, attaching a copy of the transcript. On June 7, Fripp
filed a motion adopting Brown’s recusal motion and her own similar motion for recusal with an
accompanying affidavit from her counsel.
24
unnecessary, and the orders denying Fripp’s and Brown’s recusal motions are
reversed.
(a) Near the outset of the final motions hearing, Judge Green said,
“I think probably it makes most sense to do the recusal motion first,” and he
then engaged the parties in a lengthy discussion about his possible recusal,
during which Fripp and Brown announced that they were joining in the recusal
motion that Post had filed on April 18 (as discussed in Division 2 above).14 In
response to the State’s argument that Post’s motion was untimely, Post argued
through his counsel, Bert W. Cohen, that even if he raised the recusal issue in
the wrong way, Judge Green had “an affirmative duty to disclose these matters
to the litigants and to the parties immediately and let us know about this.” Judge
Green then said:
All right. . . . I do not believe there would be any reason why
my impartiality might reasonably be questioned in this case.
14
As Fripp acknowledges in her brief to this Court, an oral joinder in another party’s recusal
motion may not be effective, given the requirements of USCR 25.1. See Henry v. State, 265 Ga.
732, 739 (462 SE2d 737) (1995) (affirming the denial of an oral motion to recuse on the ground that
it failed to comply with USCR 25.1’s requirements that “all motions for recusal be filed in writing
and be accompanied by an affidavit asserting the facts upon which the motion is founded”). Because
Fripp and Brown properly filed their own recusal motions based on the final motions hearing, and
we hold that Judge Green’s recusal was required as a result of those motions on the ground of the
judge’s statements at the hearing, we need not decide any other recusal matters raised by Fripp or
Brown in the trial court or on appeal.
25
However, let me perfect the record, since Mr. Cohen says it’s my
duty to do this, and the case law does support what he’s saying.
I was an A.D.A. [Assistant District Attorney] in the Cobb
Judicial Circuit at the time this crime was allegedly committed.
Actually, I was a Special Assistant United States Attorney and a
Special Assistant District Attorney. I had actually left the
employment as far as working in the D.A.’s office in September of
2008, and went to the U.S. Attorney’s office w[h]ere I worked full-
time from that point forth, although I was paid by federal grant from
the Federal Government to the county, and therefore remained a
county employee still, and also a Special Assistant District Attorney
still, although I didn’t handle any local cases here.
At no time when I was in the Cobb D.A.’s office or the U.S.
Attorney’s office did I participate in the prosecution of this case or
learn anything related to this case beyond what was reported in the
media and what I’ve heard in this proceeding, and also in the plea
of the codefendant.
On October 6, 2010, Governor Perdue appointed me to the
Superior Court bench here in Cobb, and I assumed the case load of
Judge Nix. I think I even assumed this case, if I recall correctly. Or
it happened after I came on as far as it being presented to come to
court.
I don’t have any special relationship with the District
Attorney. He didn’t get me this job. It was the governor that
appointed me to this job. I did not represent the State in any aspect
of this case, and I have no extra[-]judicial knowledge of the case.
Mr. Cohen has known me for years, as well as each of the
other defense lawyers have as well. In fact, I was trial partner to
one of them at one point in the past.
26
Mr. Cohen raises in his motion, and I’ll assume for purposes
of this motion that all the facts that he’s listed are correct. He raises
the issue of my State Court campaign. And as the State Ethics
Commission did, he confuses my State Court campaign with the
Superior Court campaign. Pat Head was my treasurer when I ran
for State Court last year. That race lasted a couple of months, and
then it became an appointable position. At that time, I filed a
closure of that with the county because it’s a county judgeship. But
evidently I was in error and so the State Ethics folks tell me I should
have filed it down there as well. But in that disclosure form, I listed
Pat Head as my treasurer and Pat Head’s office address. The reason
why I did that -- not that it really matters for purposes of this
motion, but for purposes of the record it might -- is because as a
public official, we receive threats all the time. In fact, the reason
why I amended the other one, the report of the campaign, the RC-
Form that is cited here and included in the motion is because I
received death threats at my house. And that’s why I amended it
recently. Not because my campaign is open, not because there’s
any funds left in the campaign account; they’ve all been returned.
At this point, Cohen objected that Judge Green should not be arguing
against his affidavit, was not under oath, and could not be cross-examined.
Cohen claimed that the Campaign Finance Commission’s executive secretary
said that Judge Green’s State Court campaign was still open and had not been
closed, and that according to a newspaper article, District Attorney Head was
still holding money for the campaign. Judge Green responded, “Obviously,
based on the affidavit and the documents that are attached to it, if I assume that
I was running for State Court, obviously I couldn’t be running for Superior
27
Court,” to which Post replied, “But Mr. Head still holds your money, and you
cannot spend it on --.” Judge Green interjected, “He does not hold my money.
That’s not an accurate statement. That’s not true. Just because it’s printed in
the newspaper --.” Fripp and Brown then objected that Judge Green was
improperly defending himself against the recusal motion and indicated that they
planned to file recusal motions based on Judge Green’s actions at the hearing.
After these exchanges, Judge Green orally denied Post’s recusal motion.
(b) As we have explained in previous cases and have reiterated
above, a judge considering a motion seeking his recusal must evaluate the
motion and accompanying affidavit solely on their face and assume that the facts
set forth in the affidavit are true, even if the judge knows them to be false or
incomplete; consideration of additional evidence is inappropriate at this point
in the process. See Henderson, 295 Ga. at 334 (explaining that the Uniform
Superior Court Rules do not contemplate an evidentiary hearing by the judge
whose recusal is sought). It is not error per se to have oral argument on a
recusal motion, although in many instances scheduling oral argument would
conflict with Rule 25.3’s requirement that the judge presented with a recusal
motion and affidavit determine “immediately” if the three threshold
28
requirements have been met. The risks of such a hearing are demonstrated by
this case. Oral argument may draw the judge into presenting his side of the
story, which in turn may create a perception that the judge is an advocate or
hostile witness rather than an impartial adjudicator in the case. Oral argument
also may result in discussion and consideration of facts beyond those set forth
in the recusal motion and affidavit, which also is inappropriate.
We have previously held that a judge cannot become actively involved in
presenting evidence or argument against a motion seeking his recusal without
that defense itself becoming a basis for recusal. See Isaacs, 257 Ga. at 128. See
also Flamm, supra, § 15.7, at 435 (collecting cases and explaining that “a judge
who personally refutes a party’s allegations of judicial bias . . . may appear to
a reasonable person to have exhibited a personal interest in the outcome of the
litigation, or to have aligned himself with the party resisting the judge’s
disqualification,” and that “by attempting to refute a charge of bias, a judge may
become – or appear to have become – an adversary of the party seeking his
disqualification” (footnotes omitted)). It may be appropriate for the judge to
disclose information relevant to his potential recusal, which the Code of Judicial
Conduct encourages judges to do sua sponte, see footnote 10 above, and such
29
disclosure may be necessary if the judge to whom a recusal motion has been
referred for decision holds an evidentiary hearing and the judge whose recusal
is sought is the only readily available source of relevant information. See, e.g.,
Turner v. State, 280 Ga. 174, 174 (626 SE2d 86) (2006). In these situations,
however, the disclosure must be made in a way that is as objective,
dispassionate, and non-argumentative as possible, so that the judge is not
reasonably perceived as a hostile witness or advocate.15
Judge Green appears to have made his statements at the hearing, which we
have recited above, in response to Post’s request for disclosures. Oral
disclosures at a hearing on a recusal motion are far riskier than, say, disclosures
15
As the Court of Appeals has cautioned:
The judge hearing the motion to recuse should exercise extreme caution in permitting
the trial judge, against whom the motion has been brought, to be called as a witness,
because the very process of examination or cross-examination of the judge may be
such as to cause the perception of prejudice or cause the judge to “become so
involved in a controversy that his [or her] objectivity could reasonably be
questioned” by the treatment by movant’s counsel intentionally. Isaacs v. State, [257
Ga. at 128]. While the motion may be without legal grounds, the hearing process
may through indirection achieve what the movant could not achieve directly.
[Only w]here there is no other available witness as to the subject of inquiry and the
subject of inquiry is relevant and material to the motion and does not invade the
privileged thought processes of the judge in reaching prior rulings should the hearing
judge permit the trial judge to be examined; then, only the hearing judge can protect
the trial judge from being abused as a witness.
Baptiste v. State, 229 Ga. App. 691, 696 n.4 (494 SE2d 530) (1997) (emphasis in original).
30
that are not made in the context of a motion challenging the judge’s impartiality
or that are made in writing, which reduces the danger of the judge’s being pulled
into a back-and-forth exchange with counsel about recusal allegations as
occurred here. See Turner, 280 Ga. at 174 (noting without disapproval the
consideration, by the judge assigned to decide a recusal motion, of the originally
assigned judge’s written statement describing his acquaintance with the
defendant and her mother).
Under the circumstances here, a reasonable person could conclude that
Judge Green appeared to be taking a personal interest in the outcome of the
recusal motion that Post had filed and Fripp and Brown had purported to join.
As we concluded in Isaacs,
A judge has no interest in sitting on a particular case; at most, his
interest lies in protecting his own reputation. His efforts at
defending himself against a motion to recuse will inevitably create
an appearance of partiality. One reason is that if he defends himself
he becomes an adversary of the movant for recusal. This
adversarial posture may create an antipathy which persists after the
motion to recuse is denied. We recognize that judges may be sorely
tempted to respond to motions to recuse which they perceive as
gratuitously defamatory. We also recognize that a judge who
actively resists recusal may be fully capable of even-handedly
presiding if the motion is denied. Nevertheless, we think that these
factors are heavily outweighed by the necessity of preserving the
public’s confidence in the judicial system.
31
257 Ga. at 128.
For these reasons, Fripp’s and Brown’s recusal motions based on Judge
Green’s statements during the May 31, 2011 hearing should have been referred
for reassignment to another judge to decide. We see no need to remand these
two cases for such reassignment as we are doing in Post’s case, however,
because the relevant facts supporting Fripp’s and Brown’s recusal motions –
Judge Green’s statements at the hearing – are presented in the hearing transcript,
and the judge to whom the motion should have been referred would have had no
choice based on those facts but to grant the motion and order Judge Green’s
recusal from Fripp’s and Brown’s cases. Accordingly, we reverse the orders
denying Fripp’s and Brown’s recusal motions, vacate their convictions, and
remand their cases to the trial court with direction that the cases be reassigned
to a new judge to continue with pretrial proceedings from the point at which
Brown and Fripp filed their meritorious recusal motions. All proceedings and
orders after that point are void as to Fripp and Brown and have no legal effect.
See Propst, 288 Ga. at 864.16
16
Given this conclusion, we need not address Brown’s other enumerations of error.
32
Judgment in Case No. S15A1189 vacated, and case remanded with
direction. Judgments in Case Nos. S15A1190 and S15A1193 reversed in part
and vacated in part, and cases remanded with direction. All the Justices concur.
33