Mayor & Aldermen of Savannah v. Batson–Cook Co.

Decision Date29 May 2012
Docket NumberNo. S11G1814.,S11G1814.
Citation12 FCDR 1770,291 Ga. 114,728 S.E.2d 189
CourtGeorgia Supreme Court


Gregory Kenneth Morgan, Cohen Pollock Merlin & Small, P.C., Elizabeth Bloom Hodges, Atlanta, James B. Blackburn, Peter Antonio Giusti, Savannah, for appellant.

Robert S. Glenn, Jr., Ellis Painter Ratterree & Adams, LLP, Stanley Karsman, Stanley M. Karsman, LLC, Savannah, Charles Jerry Willis, Mark Lawrence Degennaro, Willis McKenzie LLP, LaGrange, Adam Marshall Hames, The Hames Law Firm, LLC, Atlanta, Brian J. Vella, Jennifer A. Mahar, Smith Pachter McWhorter PLC, Vienna for appellee.

BENHAM, Justice.

A contractual dispute between the City of Savannah and its contractor, appellee Batson–Cook Company, and a sub-contractor, appellee Raito, Inc., concerning the design and construction of an underground parking garage in Chatham County resulted in the return of a multi-million-dollar jury verdict against the City and the entry of judgment thereon in Troup County. The Court of Appeals affirmed the judgment in Mayor, etc., of Savannah v. Batson–Cook Co., 310 Ga.App. 878, 714 S.E.2d 242 (2011). We granted the City's petition for a writ of certiorari to the Court of Appeals to decide whether that court erred when it determined the trial judge did not err when, having been presented with a motion to recuse him, he denied the motion rather than refer it to another judge. In the order granting the petition for a writ of certiorari, we asked the parties to address “whether the factual allegations presented on the motion to recuse were legally sufficient to require the motion to be presented to another judge for decision.”

“All parties before the court have the right to an impartial judicial officer.” Stephens v. Stephens, 249 Ga. 700, 702, 292 S.E.2d 689 (1982). The issue of judicial disqualification can rise to a constitutional level since [a] fair trial in a fair tribunal is a basic requirement of due process.” In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955). See also Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009). Judicial integrity is “a state interest of the highest order” because the power and prerogative of a court to resolve disputes rests upon the respect accorded by citizens to a court's judgments which, in turn, depends upon the issuing court's absolute probity. Id. at 889, 129 S.Ct. 2252. “If the public lacks confidence in the impartiality of judges, or worse, refuses to comply with judicial decisions voluntarily, the notion that we are a government of laws' would necessarily collapse.” Dmitry Bam, Making Appearances Matter: Recusal and the Appearance of Bias, 2011 B.Y.U.L.Rev. 943, 968. It is vital to the functioning of the courts that the public believe in the absolute integrity and impartiality of its judges (see Smith v. Guest Pond Club, 277 Ga. 143, 146, 586 S.E.2d 623 (2003)), and judicial recusal serves as a linchpin for the underlying proposition that a court should be fair and impartial. 2011 B.Y.U.L.Rev., supra, at 949.1

States may adopt recusal standards more rigorous than required by due process, and because state statutes and state codes of judicial conduct provide more protection than due process requires, most disputes over disqualification and recusal of judges rarely implicate the constitutional standard. Caperton v. A.T. Massey Coal Co., supra, 556 U.S. at 889, 129 S.Ct. 2252. The codes of judicial conduct adopted by the States 2 “ serve to maintain the integrity of the judiciary and the rule of law” ( id.), and should be construed and applied to further the preservation of the integrity and independence of the judiciary. Canon 1, Georgia Code of Judicial Conduct. Judges are “to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary” (Canon 2A) and “must avoid all impropriety and appearance of impropriety....” Commentary on Canon 2A. See also McElhanon v. Hing, 151 Ariz. 403, 412, 728 P.2d 273, 282 (1986) (“justice must not only be done fairly but ... must be perceived as having been fairly done”).

In Georgia, both OCGA § 15–1–8 and Canon 3 of the Georgia Code of Judicial Conduct are applicable when the issue of judicial recusal is considered. Jones County v. A Mining Group, 285 Ga. 465, 678 S.E.2d 474 (2009); Stephens v. Stephens, supra, 249 Ga. 700, 292 S.E.2d 689.OCGA § 15–1–8 prohibits a judge from sitting, without the consent of all parties, in a case or proceeding in which the judge is pecuniarily interested or is related within the sixth degree to any party interested in the result of the case or proceeding; or in a case or proceeding in which the judge has been of counsel or has presided in an inferior judicature when the judge's ruling or decision is the subject of review. Canon 3E of the Code of Judicial Conduct requires judges to “disqualify themselves in any proceeding in which their impartiality might reasonably be questioned ...” and contains a non-exhaustive list of instances in which judges are required to recuse themselves. The Official Commentary to Canon 3E(1) states that [u]nder this rule, judges are subject to disqualification whenever their impartiality might reasonably be questioned, regardless of whether any of the specific rules in Section 3E(1) apply.”

Uniform Superior Court Rule 253 provides the procedural framework by which a motion to recuse a judge presiding in a particular case may be filed by a party and how said motion is to be resolved. USCR 25.1 provides the timeframe within which the motion to recuse is to be filed and requires the motion to be in writing and to be accompanied by affidavits that present “all evidence thereon ... [and] fully assert the facts upon which the motion is founded.” The supporting affidavit must state the facts and reasons for the belief that bias or prejudice exists, being definite and specific as to time, place, persons, and circumstances of the extra-judicial conduct or statements demonstrating bias. Bare conclusions and opinions stated in the affidavit are not legally sufficient to support the motion or warrant further proceedings. USCR 25.2. The motion and supporting affidavits initially are presented to the judge whose recusal is sought; the judge immediately determines the timeliness of the motion, the legal sufficiency of the affidavits and, assuming any of the facts of the affidavits to be true, whether recusal would be warranted. USCR 25.3. If all three prongs are met, another judge is assigned to hear the motion to recuse. Id. The judge hearing the motion has the discretion to consider the motion solely on the affidavits or convene an evidentiary hearing, and the ruling on the merits of the motion shall be accompanied by written findings of fact and conclusions. USCR 25.6.

The focus of this case is on the threshold inquiries concerning the motion to recuse filed by the City: was the motion timely filed, were the affidavits supporting the motion legally sufficient, and did the affidavits aver facts that, when assumed to be true, would warrant the trial judge's recusal from hearing the case? If all three conditions precedent were met, the trial judge was required to refer the motion to another judge. See Wall v. Thurman, 283 Ga. 533(5), 661 S.E.2d 549 (2008). See also Gould v. State, 273 Ga.App. 155(4), 614 S.E.2d 252 (2005) (a motion to recuse may be denied as insufficient if it does not meet the three conditions precedent contained in USCR 25.3). In the order denying the motion, the trial judge made no finding with regard to the timeliness of the motion and determined that the affidavits attached to the motion were legally insufficient to warrant his recusal and that recusal would not be warranted even assuming the veracity of the facts set out in the affidavits.

The City's motion to recuse was accompanied by three affidavits executed by two attorneys who served as co-counsel for the City and a third attorney who represented the City with regard to the motion to recuse. The first affiant attested that trial counsel for Batson–Cook acknowledged to the affiant on October 1, 2008, that Nathan Lee, the signator identified as counsel for Batson–Cook on a letter to the sub-contractor's liability insurance carriers, was the nephew of Judge William F. Lee, Jr., the judge sitting in the case filed by the sub-contractor against Batson–Cook, which had filed a third-party complaint against the City, which had filed a counterclaim against Batson–Cook and cross-claims against insurance companies. The letter sent by Nathan Lee was on the letterhead of the law firm of Glover & Davis, which employed Nathan Lee as an associate. The affiant also averred that, in May 2008, Batson–Cook's trial counsel (i.e., not Glover & Davis) had requested the affiant to send by electronic mail the City's outstanding discovery requests to J. Littleton Glover at a Glover & Davis e-mail address, and that Batson–Cook's trial counsel had advised the affiant that Mr. Glover wished to talk with the City's counsel about the case, describing Mr. Glover as a lawyer “in charge” or the “leader.” The affiant stated that thereafter he communicated directly with Mr. Glover about aspects of the case and concerning expert witnesses and schedules, without including Batson–Cook's counsel of record.

The affiant of the second affidavit attested that the trial judge had assigned this case to himself by order signed on March 27, 2008.4 Affiant attached to his affidavit Batson–Cook's responses and objections to the City's interrogatories served on the City in June 2008, in which Batson–Cook disclosed that, prior to March 28, 2008, J. Littleton Glover had had a social conversation with Judge Lee and informed the judge that Batson–Cook was going to have a complex case in the Superior Court of Troup County and, in response to the judge's inquiry, that Glover & Davis was not...

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2 books & journal articles
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