Attorney General Sam Olens and State Bar President Robin Frazer Clark on Tuesday challenged members of the legal community to raise 750,000 pounds of food for Georgia food banks during the second annual Legal Food Frenzy.

The competition among firms and other legal groups runs from April 22 to May 3, providing critical supplies to food banks just as children who rely on free lunches in schools will be getting out for the summer and will struggle to find enough to eat. Olens said 60 percent of public school students are eligible for free lunches.

Clark cited statistics reporting that 28.3 percent of children in the state–about 640,000 boys and girls–regularly do not have enough to eat. ”That’s astounding, and it needs to stop,” she added. Read more »

A federal judge has lifted a temporary restraining order that barred Governor Nathan Deal from suspending  six members of the DeKalb County Board of Education, removing a legal barrier that last week had also blocked the governor from  immediately replacing them.

The school system was placed on probation last December by the Southern Association of Colleges and Schools Council on Accreditation and School Improvement. The removal is seen by Deal as part of an effort to salvage the district’s accreditation.

In an order filed late Monday afternoon, U.S. District Judge Richard Story turned down a request for a preliminary injunction that would have allowed the six school board members to remain in office while they continue to challenge the constitutionality of their removal.

In a written statement, Georgia Attorney General Sam Olens applauded Story’s ruling as a “well-reasoned order affirming our position that the Governor was on solid legal ground in removing six DeKalb school board members. Judge Story correctly recognized that the students in the DeKalb school system must come first.  I appreciate Judge Story’s careful thought, hard work, and swift decision in this time-sensitive matter.”

Robert Wilson, attorney for DeKalb schools, couldn’t be reached.

Story  held  that state law issues raised in the complaint – which was filed two weeks ago  by the DeKalb County School District and board member Eugene Walker — should be decided by Georgia courts, not the federal courts.  To that end, Story said that he would certify the questions of state law  to the Georgia Supreme Court “rather than having to wait on a newly-filed state action to work its way through to appeal.”

The public has a “significant competing interest” to those of the school district and the school board, Story said in his ruling. “Though the public has an interest in its elected officials being allowed to serve in the offices to which they were elected, there is an even greater public interest at stake here,” he said. “The interest of the public in a healthy public school system outweighs the interests of board members in serving in their positions. … The harm from the loss of accreditation to the school district and the resulting harm to the students in the district are profound. To permit the board members to continue to serve while their individual claims are resolved risks substantial consequences for the school district and its students. The Court finds that this risk of harm far outweighs the risks to the board members.”

Walker and the school district had claimed that removal of six members of the nine-member board by Deal was unconstitutional.  Attorneys for the school district and Walker said the board members’ posts were a property right under the Fourteenth Amendment that could not be stripped from them without due process. A 14-hour state school board hearing on the matter, the judge said, “met the basic requirements of pre-termination due process.” The judge added that state law permits a suspended school board member to petition for reinstatement and provides for another hearing and judicial review. “Thus, there is considerable evidence that due process as required by the Fourteenth Amendment has been satisfied,” Story said in his ruling.

Story, citing Georgia and federal case law that bars political subdivisions of a state from challenging state statutes under the aegis of the Fourteenth Amendment, suggested that the school district might lack standing to sue in federal court. While he declined to decide the issue of standing, the judge concluded that the question “nonetheless creates a substantial question about whether the School district will ultimately succeed on its Fourteenth Amendment claim.”

While the school district’s attorneys identified the property right of the board members  “as an interest that cannot be denied without due process of law,” Story held that they “fail to identify any property interest of the school district that is threatened by the state’s action.”

“The school district has no interest in any particular person serving on the school board,” he wrote. “Rather, the interest  of the school district is that a duly constituted board be in place so that it can conduct business. The school board suspension statute assures continuity of operations through appointments by the governor to fill vacancies created by the suspensions. Thus, the loss of any property interest by the school district is not apparent to the Court.”

Story said that the only harm to the plaintiffs “is their temporary inability to perform the duties of the office to which they were elected. Because they are presently suspended with pay, they are suffering no monetary loss,” and any permanent removal of board members “can only occur after they have been afforded the process provided” established by state law.

“In the event plaintiffs ultimately prevail in the case, they will be reinstated to their positions and will receive compensation to which they are entitled,” Story said. “Thus, if they ultimately prevail, they will have only suffered the loss of the opportunity to serve in their elected office for a limited period of time.”

In a Google Hangout conversation (placed on YouTube; see below) Monday February 25, three Republican attorney generals, including Georgia’s AG Sam Olens, took questions from the public and reporters, and discussed the various ways they plan to challenge the Obama administration. Said Olens:

We are going to go against an administration that doesn’t follow constitutional mandates.

Olens also expressed concern about the constitutionality, and seeks an “overhall”, of Section 5 of the Voting Rights Act, which holds any proposed changes to Georgia’s (and eight other states with a history of voter discrimination) voting laws accountable to the U.S. Justice Department or a 3-judge panel on the D.C. Circuit.

At 16:47 on the video Olens states:

It’s very different in 2013 than it was in 1964. And it is time for Section 5 to be found unconstitutional, and for Section 2 to be the standard by which all 50 states have to seek fair elections.

The U.S. Supreme Court will hear a challenge by Alabama on Wednesday, February 27, to Section 5 of the Voting Rights Act.

A federal judge in Albany has affirmed the constitutional principle that Georgia courts should be open to the public in a suit
challenging courtroom closures in the Cordele Judicial Circuit.

In a 27-page order, U.S. District Judge Louis Sands refused to dismiss a civil rights case against the circuit’s three judges – John Pridgen, Bobby Chasteen, and T. Christopher Hughes – brought by the Southern Center for Human Rights on behalf of a number of people who said they were barred from attending court hearings in the Ben Hill and Crisp County Law Enforcement Center courtrooms.

The suit claimed that the judges and county sheriffs, who were also named as defendants, systemically barred the public from attending court unless they were related to the defendants who appeared and those defendants were entering guilty pleas.

The judge rejected as “unpersuasive” the arguments put forth by the state attorney general, who is defending the judges. State lawyers argued that the judges were not closing the courts when they restricted access for reasons of space or security. Sands also rejected an argument that the public had no constitutional right to attend arraignments.

“Prohibiting the majority of the public from these proceedings often bars them from observing the entire justice system,” Sands wrote. “To deprive the public [of] the right to attend proceedings during which that process occurs could undermine the public’s faith in the modern criminal justice system.”

Southern Center Senior Counsel Gerald Weber called Sands’ ruling “a “public welcome’ sign for Georgia courtrooms that have presented citizens with untold hoops and hurdles to public access.”

Lauren Kane, a spokeswoman for Georgia Attorney General Sam Olens, said the office declined to comment because the matter was still ongoing.

The Daily Report will have a full story on its website late this afternoon.

Georgia has joined 18 other states in challenging a  U.S. Second Circuit Court of Appeals decision upholding a New York gun law.

Georgia Attorney General Sam Olens and other attorneys general have filed an amicus brief requesting the U.S. Supreme Court review Kachalsky v. Cacace, 817 F. Supp. 2d 235, which involves a law they say  infringes on the Second Amendment.

The law requires a person to show “proper cause” to the state in order to obtain a license to carry concealed handguns.

In 2011, U.S. District Court for the Southern District of New York ruled that the law did not violate the Second Amendment because the state had an interest in promoting safety and preventing crime. In November, the federal appellate court affirmed the district court’s decision.

Olens issued a written statement today in which he disagrees: “The Second Amendment explicitly gives law abiding citizens the right to not only keep arms, but also to bear arms.

By requiring citizens to demonstrate a ‘special need for self protection’ in order to legally carry a firearm outside the home, the State of New York is depriving its citizens of a fundamental constitutional right.

This case rises to the level of Supreme Court review as it involves a core individual liberty enumerated by our Founding Fathers in the Bill of Rights.”

Olens also said the amicus brief argues that the case will allow the nation’s high court to “resolve two of the most commonly raised questions regarding the Second Amendment: (1) whether its protections apply with equal force outside the home, and (2) whether governments can require law-abiding citizens to provide evidence supporting a specific need in order to obtain a concealed carry permit.”

The coalition of states challenging the court decision is led by the attorney general of Virginia. Other states that have signed on to the amicus brief are Alabama, Alaska, Arizona, Arkansas, Florida, Idaho, Kansas, Michigan, Montana, Nebraska, New Mexico, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah and West Virginia.

Georgia is not among a group of states suing Standard and Poor’s over its high ratings of troubled mortgage-backed securities.

“Georgia was not contacted about joining the lawsuit before it was filed, and has no plans to do so at this time,” said Britt Grant, Georgia Attorney General Sam Olens’ counsel for legal policy.

“General Olens is always concerned about allegations of malfeasance, however, and our office is closely monitoring the litigation,” Grant added.

The U.S. Department of Justice sued Standard & Poor’s on Feb. 4, and Connecticut Attorney General George Jepson is leading a multistate coalition that has joined the suit, according to Bloomberg News.

The Georgia attorney general’s office said Monday that two people have pleaded guilty for their roles in fraudulently obtaining nearly $981,000 in Medicaid payments for their company.

Leontyne Scott and Karyn McCrimmon entered their pleas Friday in Gwinnett County Superior Court, where Magistrate Judge Mark Lewis was sitting by designation.

The two created false, backdated and forged documents that were placed in the files of consumers for whom the company had submitted Medicaid claims, the attorney general’s office said.

Scott, the former executive director of Diversified Family Solutions, pleaded guilty to one count of Medicaid fraud and was sentenced to two years in prison and eight years on probation. Scott must pay more than $30,000 in restitution and a $1,500 fine.

McCrimmon, a counselor with the company, pleaded guilty to one count of false writings and was sentenced to five years on probation and a $1,500 fine.

Seven other employees at Diversified Family Solutions and the company’s owner, Wanda Francis, previously pleaded guilty to felony charges, the attorney general’s office said.

A Decatur obstetrician was arrested Wednesday on a charge that he illegally billed $205,000 to the government’s Medicaid program to perform elective abortion services.

The indictment against Dr. Andre Damian Williams, 62, owner of DeKalb Gynecology Associates and Legacy Obstetrics, claims he charged the government for abortion-related services including ultrasounds, evaluations, pregnancy tests and urinalysis from January 2009 through September 2011.

The indictment alleges some of the ultrasounds were never performed, and the payments he collected for other services were for greater amounts than he was entitled to because they were associated with abortions.

Under the federal law known as the Hyde Amendment, federal funds may not be used to pay for elective abortions and their associated services.

Medicaid fraud is punishable under state law by up to 10 years in prison and a $10,000 fine, according to a news release by Georgia Attorney General Sam Olens.

The case is being prosecuted by the Georgia Medicaid Fraud Control Unit in the attorney general’s office, said spokeswoman Lauren Kane.

Medicaid, a federal program that provides health services to people who can’t afford them, is administered through the state Department of Community Health.

DeKalb Gynecology Associates’ website says it’s a private medical office that provides early abortion services, pregnancy testing, emergency contraception and post-abortion follow-up care. The office was closed Wednesday, and an answering service said it couldn’t take a message.

A profile on Healthgrades.com says Williams is board-certified in obstetrics and gynecology and graduated from Howard University medical school in 1977.

The indictment was handed down in DeKalb County Superior Court on Dec. 20, but it wasn’t publicized by the attorney general’s office until after Williams was arrested Wednesday.

No lawyer was listed for Williams, and jail records showed he hadn’t posted a $25,000 bond as of Wednesday afternoon.

The case is State v. Williams, No. 12-CR-6359.

Georgia Attorney General Sam Olens filed an appeal with the state Supreme Court today to halt the release of a Cobb County homeowner convicted of killing another man on his property.

A Cobb County jury convicted John McNeil in 2006 of fatally shooting Brian Epp and sentenced him to life in prison. McNeil appealed, arguing that jurors wrongly rejected his self-defense claim, but the state Supreme Court upheld the jury’s decision.

Last month, Baldwin County Superior Court Judge Hulane George granted McNeil’s habeas petition, ruling that mistakes were made by McNeil’s trial counsel that kept the jury from receiving instruction on McNeil’s right to defend his home.

“Mr. McNeil’s veteran defense attorney vigorously pursued a finding of self defense at trial, and the jury was fully instructed on that defense. The jury rejected that defense,” the Law Department stated in a news release today. “Mr. McNeil’s habeas counsel now argues that his trial counsel should also have requested an instruction to the jury on defense of one’s habitation. However, the victim was shot in Mr. McNeil’s yard and there was no evidence that the victim was attempting to get into Mr. McNeil’s house.”

The Law Department further stated that it intends to argue on appeal that the a jury would be unlikely to clear McNeil as defending his home since a jury rejected his initial claim of self-defense.

AG to appeal habeas ruling for man who claimed self-defense

Read more »

Georgia Attorney General Sam Olens sent a follow-up letter to state Superintendent John Barge today regarding allegedly illegal advocacy by local school districts against an upcoming charter school referendum.

Olens noted two state laws allow the punishment of local school boards that use of public money to support or oppose ballot initiatives.

One measure (O.C.G.A. § 20-2-36) allows the state superintendent to recover misappropriated state funds by filing suit against any local school district believed to have violated advocacy prohibitions. The other (O.C.G.A. § 20-2-243) allows the State Board of Education to withhold state funds from local school districts that misuse state or local tax dollars.

In his letter, Olens did not posit that any school districts have broken the law. However, Olens stated that the primary purpose of the statutory measures are to secure and ensure future compliance.

“In the absence of specific facts, it is difficult to determine which mechanism—if any—ought to be considered for use,” he wrote. “I will note, however, that it appears highly unlikely that substantial state funds have been directly expended for the purpose of electoral advocacy. It is more likely potential violations would include expenditure of other public resources: employee time, website postings, and the like.”

Read more »