Supreme Court of GA elects new chief justice The Supreme Court of Georgia unanimously elected Presiding Justice Hugh P. Thompson of Milledgeville to become chief justice, the court announced today.

He will assume the position Aug. 15, 2013, succeeding Chief Justice Carol W. Hunstein.

Thompson was chief judge of the Ocmulgee Judicial Circuit when Gov. Zell Miller appointed him in 1994 to the Georgia Supreme Court.

Prior to that, he served as president of the statewide Council of Superior Court Judges. He and his wife, Jane, have two grown sons.

The Court has also unanimously elected Justice P. Harris Hines to become the new Presiding Justice.

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The Georgia Supreme Court has docketed the case challenging the constitutionality of a two-year-old law allowing the governor to remove local school board members if they jeopardize the school district’s accreditation.

The high court confirmed the case was docketed today. A spokeswoman said the case will follow the normal course, meaning the justices will have two court terms, or about six months, to make a decision.

The challenge stems from a legal fight between ousted DeKalb County school board Chairman Eugene Walker and Governor Nathan Deal.

Deal issued an executive order on Feb. 25 suspending six of the school board’s nine members, including Walker. The ouster came after the Southern Association of Colleges and Schools Council on Accreditation placed the DeKalb school system on probation. On March 13, Deal named new members to the board.

U.S. District Court for the Northern District of Georgia Judge Richard Story on Thursday asked the state high court to address two questions raised by the governor’s decision to remove and replace the school board members.

The questions are:

-        Does OCGA § 20-2-73 violate the Georgia constitutional doctrine that each school system shall be under the management and control of a board of education, the members of which shall be elected as provided by law? OR

-        Does the potential removal of school board members as provided for by OCGA § 20-2-73 exceed the General Assembly’s authority to enact general laws regarding local board of education under Article VIII, Section V?

The high court last year rejected Governor Sonny Perdue’s 2010 effort to rebuild the Warren County school board, but the Legislature in 2011 provided governors with new authority to replace school boards. Meanwhile, a restraining order remains in place in Fulton County that has blocked Deal’s attempts to replace the Sumter County board.

For more on this case read today’s article by Staff Writer R. Robin McDonald.

The Georgia Supreme Court on Monday reinstated the murder convictions and sentences for two men that a Fulton County judge tossed out because one page of a three-page investigative report was missing at the time of their trial.

In separate trials in 2008, Christopher James and Herman Lawson were convicted of murdering Fatima Fisher and Jeremiah Ingram; a third co-defendant indicted on the same charges was later acquitted by a jury.

In 2011, now-retired Fulton County Superior court Judge Marvin Arrington Sr. ordered new trials for both men, agreeing with their lawyers that a missing page of a three-page report from the medical examiner’s office was a “critical piece of evidence” that could have helped fix the time of the murders and possibly helped their cases.

In a five-page opinion for a unanimous court, Justice Robert Benham noted that the copies of the report in both the prosecution and defense files were missing the page, which Arrington’s order said was likely due to the report being photocopied on a copier set to print double-sided documents. Benham’s opinion said the lower court “made it clear that it found no evidence of malfeasance or misfeasance with regard to the missing page” on the part of the state.

That the third defendant’s attorneys were able to easily ascertain that a page was missing – they were numbered, Benham noted – and acquire the full report prior to the trial indicated that the full document could have been obtained “by the exercise of reasonable diligence.”

“That their co-indictee’s defense team recognized that a page was missing and obtained it defeats appellees’ claim of suppression,” wrote Benham, granting the state’s motion to overturn Arrington’s order.

The office of Fulton County District Attorney Paul Howard had no response to the ruling, according to spokeswoman Yvette Jones.

Roswell defense attorney Raina Nadler, who represented the inmates on appeal along with Riverdale attorney Barbara Collins, said they had not had a chance to discuss the order with the clients.

One day after the Georgia Supreme Court rejected his latest appeal, a judge has set a new execution date for Warren Lee Hill.

The office of Attorney General Sam Olens announced the Feb. 19 execution date, explaining that a Superior Court judge earlier in the day had set a seven-day window from that day for the execution.

Hill was convicted by a Lee County jury for the 1990 murder of fellow inmate Joseph Handspike. Hill had been serving a life sentence for the murder of his girlfriend.

In federal and state habeas proceedings, Hill challenged Georgia’s requirement that an inmate provide proof of mental retardation beyond a reasonable doubt if he wants to avoid execution under a 2002 U.S. Supreme Court rule that bars execution of the mentally retarded.

A state court judge who found Hill mildly mentally retarded said the Georgia standard was unconstitutional, and some state and federal appeals court judges agreed, but the full U.S Court of Appeals for the Eleventh Circuit in 2011 voted 7-4 to uphold it.

Hill was scheduled to be executed last summer, but the state Supreme Court gave him a reprieve so it could consider his argument that the state’s reduction of the number of drugs used in lethal injection from three to one was the sort of change that triggered certain administrative requirements, such as a public notice and comment period. A unanimous court rejected that argument yesterday.

UPDATE: The AG’s office announced a second execution date later this afternoon. Andrew Allen Cook, convicted of the 1995 murders of two Mercer University students, is scheduled to be executed on Feb. 21. A spokeswoman for Olens said yesterday that Cook, whose appeal was rejected by the U.S. Supreme Court just two weeks ago, was the only Georgia death row inmate who completed his appeals during the time since the Georgia Supreme Court stayed Hill’s execution.

The Judicial Qualifications Commission investigator whose probes have ended dozens of judicial careers since 2008 will no longer roam the state in search of wayward jurists.

Instead, Richard Hyde will be a member of the JQC itself, the agency that assesses how allegations and evidence against Georgia’s judges should be handled. Governor Nathan Deal tapped Hyde to the JQC on Friday.

Chattahoochee Superior Court Judge John Allen, who chairs the commission, said Hyde would have to relinquish his investigative duties in order to serve as a member.  “It’s a policy on our part as commissioners that we don’t investigate,” said Allen. The JQC will launch a search for another investigator, Allen said. In the meantime, JQC Director Jeff Davis, who used to handle disciplinary complaints at the State Bar of Georgia, will serve as acting investigator.

Hyde will replace Atlanta businessman Jack Winter, who has served two four-year terms as one of two citizen members of the seven-member panel, which also includes two judges and three lawyers.

In addition to his JQC duties, Hyde is an investigator for Balch & Bingham. A former policeman, television news producer and investigator for then-Attorney General Michael Bowers, now a B&B partner, Hyde is a good choice for the slot, Allen said.

“It will allow us a great deal of comfortable continuity, if you will,” said Allen. “He knows what the processes and procedures are.”

In an emailed statement, Davis echoed Allen’s praises.

“Given Richard’s breadth of experience as a public corruption investigator with the State Attorney General, his recent investigation of teachers in the Atlanta schools cheating scandal, and his tireless work investigating judicial misconduct, it is clear that the Governor could not have made a better choice than Richard Hyde to represent the interests of the citizens of this State on the Commission,” wrote Davis. “It is an outstanding appointment which will ensure continued public confidence in a fair and impartial judiciary.”

Hyde declined to comment on his appointment.

Decatur criminal lawyer and blogger J. Scott Key has written up an interesting death penalty decision issued by the Georgia Supreme Court last month.

The unanimous decision reversed a death sentence handed down in DeKalb County in 2008. The court said a DeKalb judge was wrong to forbid lawyers for defendant Clayton Jerrod Ellington, on trial for the murder of his wife and their twin two-year-old sons, from asking all prospective jurors whether they could consider a life sentence in a case involving the murder of young children. Prosecutors said that impartiality questions relating to facts not set forth in the indictment were improper, but the Supreme Court said that as soon as the jury was empaneled and the trial began, the age of the victims became a focus of the state’s argument that Ellington should be sentenced to death.

The takeaway, says Key, who filed an amicus brief in the case on behalf of the Georgia Public Defender Standards Council, is to look beyond the indictment in preparing to try a case.

As you prepare for voir dire, consider what things about your case could be a problem for certain jurors. Then craft questions designed to find out who those jurors are. Anticipate that opposing counsel will object and say that you are asking jurors to prejudge facts. Prepare your response using the language in Ellington. And keep in mind that a case is often about much more than the language contained in the indictment.

Back in the 1990s, John G. Roberts Jr. convinced David Nahmias to join him at his Washington law firm, Hogan & Hartson (now called Hogan Lovells). Now that Roberts is chief justice of the United States, and Nahmias is a Georgia Supreme Court justice, Roberts has tapped Nahmias for another gig.

The state high court announced this week that, at Roberts’ behest, Nahmias will serve a three-year term on the U.S. Judicial Conference Advisory Committee on Civil Rules. The committee, which recommends amendments to the Federal Rules of Civil Procedure, includes federal judges, prominent lawyers and law professors, a U.S. Justice Department representative, and one state supreme court justice.

See the full press release here.

The state Supreme Court on Tuesday agreed to consider what rules law firms must follow if they want to keep internal discussions about their potential malpractice exposure secret.

The petition for certiorari was filed by a St. Simons developer and former client of Savannah’s Hunter, Maclean, Exley & Dunn. A superior court judge had ordered the firm to divulge its internal communications to the former client, but in July a panel of the Court of Appeals sent the case back to Savannah for further proceedings  under new rules that appeared to place the firm in a better position.

The appellate panel opinion rejected the position taken by several courts around the country that a law firm does not enjoy attorney-client privilege with its own general counsel when a client wants to view internal firm communications about a client’s malpractice threat. Instead, the appeals court panel said the issue needs to be decided on a case-by-case basis, considering factors such as whether the role of a firm’s in-house counsel is clearly defined and the extent to which that lawyer delegates tasks to others at the firm.

The justices were unanimous in agreeing to take up the case. They’re expected to hear oral argument in March.

Daily Report subscribers can read more about the case here.

A divided Supreme Court of Georgia has let stand a controversial interpretation of a fee-shifting rule created in the 2005 tort reform package.

The high court on Monday denied a defense request that it review last year’s state Court of Appeals decision that appeared to give judges considerable leeway in denying attorney fees under the offer of settlement rule. The cert petition had been supported by an amicus brief filed on behalf of the American Tort Reform Association.

Under the offer of settlement rule, a party can be ordered to pay the other side’s attorney fees if it rejects a settlement offer but doesn’t fare much better than the offer when the case is decided in court.

But in December, the Court of Appeals essentially held that a defense verdict won’t guarantee the defense can collect offer-of-settlement fees for a rejected offer. In the underlying case, Fulton County State Court Judge Patsy Porter denied the defendants’ fee request on the basis their $25,000 offer to settle the wrongful death case stemming from consecutive vehicle crashes was not made in good faith. Among other factors, Porter noted those defendants offered $1 million at trial. By a vote of 5-2, the Court of Appeals affirmed Porter’s decision, Judge Anne Elizabeth Barnes pointing out in her opinion for the majority that the offer of settlement statute contains language about a trial judge determining whether an offer was made in good faith.

Justices Harold Melton and Harris Hines dissented from the high court’s decision not to take up the case. Justice Keith Blackwell, who joined the dissent to last year’s decision as a Court of Appeals judge, didn’t participate in the Supreme Court’s vote.

The family of an elderly woman who was partially eaten by an alligator inside a gated Savannah community in 2007 is seeking a second review by the Georgia Supreme Court of their wrongful death case against the golf club and homeowners association.

The state high court, in a 4-3 decision last month, reversed a March 2011 state Court of Appeals ruling that found The Landings Club and The Landings Association may have been liable under the plaintiffs’ premises liability argument, which said the defendants didn’t do enough to keep residents safe from large, aggressive alligators that lived in the lagoons throughout the gated community.

The Supreme Court’s majority decision, written by Justice Harold D. Melton, stated that even though no warning signs were posted at the lagoons, the homeowners association had warned residents in its publications and on its website that alligators were present and could be dangerous. Thus, the woman assumed the risk when she went out for an evening walk near the lagoons.

Gwyneth Williams, 83, was found dead in October 2007 near one of the lagoons that is jointly owned by the golf club and the homeowners association. Her family sued The Landings Club and The Landings Association in October 2008, seeking damages for wrongful death.

In the motion for reconsideration, which was filed on June 28, plaintiffs attorney Robert Bartley Turner of Savage, Turner, Pinckney & Madison argued that the Supreme Court majority incorrectly concluded that Williams had “equal knowledge” of the hazard of alligators and assumed the risk of her death. The motion also argued that the majority conclusion was not supported by the court record.