Collins v. Walden

• Decision Date: 12 April 1985
• Docket Number: Civ. A. No. C84-446A.
• Citation: 613 F. Supp. 1306
• Parties: Charles Clifton COLLINS, Plaintiff, v. Betty Anne WALDEN, William Duckworth, George Glaze and County of Clayton, Defendants.
• Court: U.S. District Court — Northern District of Georgia

613 F. Supp. 1306

Charles Clifton COLLINS, Plaintiff, v. Betty Anne WALDEN, William Duckworth, George Glaze and County of Clayton, Defendants.

Civ. A. No. C84-446A.

United States District Court, N.D. Georgia, Atlanta Division.

April 12, 1985.

COPYRIGHT MATERIAL OMITTED

D. Lynn Russell, Decatur, Ga., for plaintiff.

Rodney G. Meadows, Smith, Welch & Meadows, McDonough, Ga., James S. Owens, Jr., Robert L. Goldstucker, Nall & Miller, Harvey S. Gray, Fortson & White, Atlanta, Ga., for defendants.

ORDER

FORRESTER, District Judge.

This action is before the court on a motion by defendant George Glaze to compel discovery and for sanctions; a motion by defendant William Duckworth for summary judgment; a motion by defendant George Glaze for summary judgment; a motion by defendants Betty Walden and Clayton County for summary judgment; and plaintiff's motion to quash the summary judgment motions by defendants Duckworth, Walden and Clayton County. These motions will be considered below after a brief discussion of the relevant facts.

I. FACTS.

The present action is another product of the divorce proceeding brought by Vicki Lynn Collins against Charles Clifton Collins in the Superior Court of Clayton County, Georgia. After the court, Judge Marvin A. Miller, presiding, awarded custody of the couple's minor child to Mrs. Collins by an order dated September 21, 1981, Mr. Collins, plaintiff in the present action, filed a motion for reconsideration or in the alternative a motion for a new trial. The basis for that motion was that Judge Miller had allegedly been improperly contacted and influenced against plaintiff by one Henry "Nigg" Estes. A hearing was held on that motion before Judge Miller on January 4, 1982, although no ruling was issued at that time. Judge Miller subsequently was diagnosed as having terminal cancer and never returned to the bench. During February and March he underwent treatment, including medications, at various hospitals. During that time most of his cases were apparently assigned to other judges.

Plaintiff and his attorney learned that Judge Miller was seriously ill and had been hospitalized sometime in early February 1982. Defendant George Glaze's Statement of Material Facts Not in Dispute, ¶ 19. However, it was not until after learning on March 12, 1982 that Judge Miller had decided to deny the motion for reconsideration that plaintiff filed a motion to recuse Judge Miller from the case.¹ On Monday, March 15, 1982, plaintiff filed a motion to recuse Judge Miller from further consideration of plaintiff's "Motion for Reconsideration or, in Alternative, Motion for New Trial." As grounds for his recusal motion plaintiff alleged that Judge Miller was biased against plaintiff as a result of the improper ex parte communications from Nigg Estes and that Judge Miller was physically and mentally incompetent to continue in the case.

The motion to recuse was assigned to Judge William Ison. A hearing was set for April 1, 1982. In preparation for the hearing Mr. Duckworth prepared, and had executed, affidavits from George Glaze, a close personal friend of Judge Miller's, from Dr. Edgar Grady, Judge Miller's treating physician, and from Judge Miller. Each of these affidavits was offered for the purpose of showing that Judge Miller was still mentally alert and able to rule in the case.

Plaintiff's counsel apparently did not learn of the affidavits until the afternoon of March 31, 1982.² Mr. Brantley, who had apparently done little if anything to prepare for the recusal hearing, served subpoenas on Betty Walden, Dr. Grady, and Judge Miller, who at that time was still in the hospital. Defendant George Glaze was retained in his capacity as county attorney to file a motion to quash the subpoenas served on Betty Walden and Judge Miller on the grounds that the subpoenas did not comply with the Local Rules of the Superior Court of Clayton County.³ Although he was not an employee of Clayton County, Dr. Grady was included in the motion to quash at his request.

The hearing on the motion to recuse Judge Miller was held on April 1, 1982. At the commencement of the hearing Mr. Brantley conceded to Judge Ison that the motion to quash the subpoenas was meritorious and that he did not oppose the motion. Judge Ison thereupon granted the motion to quash the subpoenas. Judge Ison then heard arguments and evidence on the merits of the motion to recuse. After arguments from both sides concerning the timeliness of those allegations in the motion concerning Judge Miller's alleged bias and the alleged influence of Nigg Estes, Judge Ison granted Mr. Duckworth's motion to dismiss those parts of the recusal motion dealing with bias and improper influence. Transcript of April 1, 1982 Hearing on Motion to Recuse at p. 30-31 (filed as Exhibit 21 in support of Defendant George Glaze's motion for summary judgment).

The court then turned to the issue of Judge Miller's mental and physical condition. Mr. Brantley asked the court for additional time to gather evidence as to those issues, but Judge Ison denied his request. Transcript p. 46. Mr. Duckworth then read into the record the affidavits of Dr. Grady, George Glaze, and Judge Miller. Except as to one minor portion of Dr. Grady's affidavit Mr. Brantley made no objection to the substance or truthfulness of any of the affidavits. He only objected to the timeliness of the affidavits and the fact that he had not seen them until the previous evening. He therefore requested additional time to prepare counter-affidavits. Judge Ison denied this objection to the affidavits and stated that he would consider them. He denied Brantley's request for additional time to prepare counter-affidavits.

After closing arguments from the parties Judge Ison declared his ruling from the bench. After first discussing the awkwardness of the procedure by which a judge had to defend himself from a motion to recuse and expressing his preference that the Attorney General represent judges on such matters, Judge Ison made specific rulings as to the allegations in the motion to recuse:

... I find that the allegations as to improper influence from outside sources is filed too late and it was proved that this was known at least on January 4th when the hearing was conducted before Judge Miller and no motion to recuse was filed until March 15, 1982, some two and a half months later approximately. Therefore, that portion comes too late.

In addition thereto, after considering the affidavit of Judge Miller, I find that the affidavit is sufficient to repute (sic) those allegations of improper influence. After reading that portion of the testimony set out in the transcript of January 4th by Mr. Estes, I find as a fact that the affidavit — Judge Miller was not influenced by any outside conversations by Mr. inaudible Estes to his secretary or any message relayed thereof.

This Court finds further that that portion of the affidavit consisting of the last two paragraphs filed by the movant in the case contains much hearsay as to the diagnosis of the judge and the treatment and medications that he is receiving and there has been no other evidence submitted. And as a matter of law, those last two paragraphs of the affidavit are insufficient as a matter of law to disqualify Judge Miller.

The Court further finds that if considering the last two paragraphs as sufficient and weighed against the affidavits submitted to Judge Miller, Dr. Grady and George Glaze's affidavit considering with those, but the weight of the evidence is that Judge Miller, though suffering from physical inability to come to his office, is mentally alert and capable of dictating or requiring his secretary to type and impose any order based upon the evidence previously presented in this case.

So, it is the order and judgment of the Court based upon those facts that the order to recuse is hereby denied and the case will be remanded back to the Clerk's Office to be reassigned to Judge Miller. Transcript at p. 72-73.

A written order denying the motion to recuse for the grounds stated by Judge Ison at the hearing was prepared by plaintiff's counsel and entered by the court on April 5, 1982. On April 9, 1982 Judge Miller entered an order denying Defendant's Motion For New Trial, another order denying Defendant's Extraordinary Motion for New Trial,⁴ and a final order awarding permanent custody of the couple's minor child to Mrs. Collins and providing certain visitation rights to Mr. Collins.⁵ Judge Miller died on April 29, 1982.

On May 5, 1982 Mr. Collins, through his attorney, filed with the Georgia Supreme Court an application for discretionary appeal of the final custody order, the order denying his motion for new trial, and the order denying his extraordinary motion for new trial. The denial of the motion to recuse was not appealed at that time. The application for discretionary review was denied by the Supreme Court on May 19, 1982. Exhibit 2 to Defendant Duckworth's Motion for Summary Judgment.

In June 1982 the remaining issues of child support, alimony, and property division were tried before a jury which rendered a verdict which was ultimately reduced to a final judgment of the court entered by Herbert C. Morgan, Senior Judge of the Superior Court of Clayton County. Plaintiff again sought discretionary review from the Supreme Court of Georgia from the final judgment and all preceding orders. However, plaintiff's application for review was again denied on September 2, 1982. Mr. Collins did not seek a writ of certiorari from the United States Supreme Court and has apparently made no attempts in the Georgia courts to have the Clayton County Court's judgment modified or set aside.

Although there apparently have been no further proceedings in the main divorce action, the Supreme Court's denial of plaintiff's application for discretionary appeal has not ended the litigation. On November 10, 1982 Mr. Collins filed an action in this court against his former wife, ...