Post v. State

• Decision Date: 16 November 2015
• Docket Number: S15A1190,S15A1193.,Nos. S15A1189,s. S15A1189
• Citation: 779 S.E.2d 624,298 Ga. 241
• Parties: POST v. The STATE. Fripp v. The State. Brown v. The State.
• Court: Georgia Supreme Court

298 Ga. 241

779 S.E.2d 624

POST

v.The STATE.

Fripp

v.The State.

Brown

v.The State.

Nos. S15A1189

S15A1190

S15A1193.

Supreme Court of Georgia.

Nov. 16, 2015.

Ashleigh Bartkus Merchant, The Merchant Law Firm, P.C., Marietta, for appellant.

Patricia B. Attaway Burton, Deputy Atty. Gen., Samuel S. Olens, Atty. Gen., Paula Khristian Smith, Sr. Asst. Atty. Gen., Department of Law, Mary Catherine Greaber, Department of Law, Atlanta, John Richard Edwards, Asst. Atty. Gen., D. Victor Reynolds, Dist. Atty., John Allen Pursley, Asst. Atty. Gen., Cobb County District Attorney's Office, Jason Ross Samuels, J. Samuels Law, PC, Marietta, for appellee.

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 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

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, would warrant the assigned judge's recusal from the case. See Horn v. Shepherd, 294 Ga. 468, 471, 754 S.E.2d 367 (2014) ; Birt v. State, 256 Ga. 483, 484, 350 S.E.2d 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 S.E.2d 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 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, 728 S.E.2d 189 (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, 754 S.E.2d 367. 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, 728 S.E.2d 189 ("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 S.Ct. 230, 65 L.Ed. 481 (1921)."). In deciding whether this assumed state of facts would authorize an order 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, 728 S.E.2d 189 (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 "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 S.E.2d 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, 754 S.E.2d 367 (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 § 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, 728 S.E.2d 189.

With these rules in mind, we now consider the motions filed by Appellants to recuse Judge Green.

S15A1189. Post v. State.

2. Post...