Serdula v. State

• Decision Date: 15 February 2018
• Docket Number: A17A1454
• Citation: 812 S.E.2d 6
• Parties: SERDULA v. The STATE.
• Court: Georgia Court of Appeals

344 Ga.App. 587

812 S.E.2d 6

SERDULA

v.The STATE.

A17A1454

Court of Appeals of Georgia.

February 15, 2018

Nathanael A. Horsley, Dawsonville, for appellant.

D. Victor Reynolds, District Attorney, Michael S. Carlson, John R. Edwards, Assistant District Attorneys, for appellee.

Miller, Presiding Judge.

Paul Patrick Serdula was indicted in Cobb County for numerous offenses, including child molestation and aggravated sodomy. Serdula moved to recuse the trial judge, alleging, relevantly, that the judge had a "close relationship" with the Cobb County district attorney. Following a hearing, the trial court denied the motion, and after a bench trial, Serdula was found guilty of all the counts with which he was charged. Serdula now appeals from the trial court's denial of his amended motion for new trial. Because we find that the trial court erred in its denial of the motion to recuse, we vacate Serdula's convictions and remand for further proceedings consistent with this opinion.

The trial court's determinations about whether recusal is warranted under Uniform Superior Court Rule 25.3 are questions of law that are subject to de novo review. Mayor & Aldermen of City of Savannah v. Batson-Cook Co. , 291 Ga. 114, 119 (1), 728 S.E.2d 189 (2012).

So viewed, in 2010, Serdula was indicted for multiple counts of unlawful surveillance, child molestation, aggravated sodomy, sexual assault against a person in custody, and aggravated child molestation. That same year, the trial judge, Reuben M. Green, campaigned for election to the Cobb County State Court, but was appointed by the Governor to the Cobb County Superior Court bench.¹ The Cobb County district attorney at that time was Patrick H. Head. In December 2010, after this case was assigned to Judge Green, Serdula filed a motion to recuse, accompanied by a sworn affidavit. In the affidavit, Serdula asserted that he had learned of the "close relationship" between the trial judge and Head.

At a hearing on the motion, Serdula's trial counsel argued that Judge Green and the district attorney had a "close association," and that an evidentiary hearing was needed to inquire into the closeness of the relationship. Serdula requested that the trial court refer the recusal motion to another judge for disposition, but the trial court denied the motion. In doing so, Judge Green stated he did not believe that there was any reason why his impartiality might be reasonably questioned, that he neither represented the State in any aspect of Serdula's case nor participated in the investigation of Serdula's case, and that he did not have any special relationship with Head. Judge Green, however, later admitted during a hearing on a recusal motion in Post v. State , 298 Ga. 241, 255 (3) (a), 779 S.E.2d 624 (2015), that Head had served as his campaign treasurer for his ultimately abandoned 2010 State Court campaign.²

Following a bench trial, the trial court found Serdula guilty of all counts with which he was charged and sentenced him to life imprisonment. Serdula now appeals from the denial of his amended motion for new trial, arguing, inter alia, that the trial judge erred in denying the motion to recuse.

1. As his first enumeration of error, Serdula asserts that the impartiality of the trial court might reasonably be questioned in this case, and that reversal is warranted due to the trial court's error in denying his motion to recuse. We agree that the trial court erred in denying Serdula's motion to recuse and vacate such order with instruction.

We first review the basic procedural and substantive rules governing motions to recuse superior court judges in Georgia. Uniform Superior Court Rule ("USCR") 25.3 of the 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. 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.

(Citations, punctuation and footnote omitted.) Post , supra, 298 Ga. at 243 (1), 779 S.E.2d 624.

As an initial matter, we question whether the averment of a "close relationship" between Judge Green and Head would have required assignment to another judge, because this claim lacks objective facts regarding the relationship. See Marlow v. State , 339 Ga. App. 790, 801 (4), 792 S.E.2d 712 (2016) (finding the affidavit insufficient to warrant recusal where appellants cited no evidence that the judge had any contact with the victim or the extent of the relationship at issue); see also, e.g., Gude v. State , 289 Ga. 46, 49-50 (2) (b), 709 S.E.2d 206 (2011) (motion insufficient where appellant alleged that the judge had previously been an employee of the district attorney and owed a debt of gratitude to the district attorney for her prior employment).

Nonetheless, "[a]ll parties before the court have the right to an impartial judicial officer. 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." (Citations and punctuation omitted.) Batson-Cook Co. , supra, 291 Ga. at 114, 728 S.E.2d 189. Thus, even where the facts in an affidavit do not warrant recusal if assumed true, a judge still maintains an ethical duty to recuse himself when he is independently aware of grounds to do so. Gude , supra, 289 Ga. at 50 (3), 709 S.E.2d 206.

Under the Georgia Code of Judicial Conduct, judges are to "act at all times in a manner that promotes public confidence in the ... impartiality of the judiciary." Former Canon 2A. When deciding whether the assumed state of facts in the affidavit would authorize an order requiring recusal, the assigned judge is to be guided by former canon 3 of the Code. Post , supra, 298 Ga. at 244 (1), 779 S.E.2d 624. In accordance with former canon 3E (1),³ judges "shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned, including, but not limited to instances where: (a) [t]he judge has a personal bias or prejudice concerning a party or a party's lawyer...." As explained in the official commentary to this rule, even where a judge does not think that there exists any basis for disqualification, he "should disclose on the record information that the court believes the parties or their lawyers might consider relevant to the question of disqualification[.]"

Former Canon 3E, Commentary; see Stinski v. State , 286 Ga. 839, 842 (3), 691 S.E.2d 854 (2010).

With the Code of Judicial Conduct in mind, and given the Supreme Court's extensive analysis in Post , we must conclude that, even assuming, without deciding, the facial insufficiency of Serdula's affidavit, the trial court erred in its disposition of the recusal motion because it had an independent duty to address recusal and make disclosures based on Judge Green's personal knowledge of Head's position with his campaign.⁴

The treasurer of a judge's campaign may have financial reporting obligations even after the conclusion of the election. Post , supra, 298 Ga. at 250 (2) (d), 779 S.E.2d 624. As the Supreme Court explained in Post , "it is not unusual for the financial components of a campaign to continue well after the election components of the campaign have ended, as the campaign pays off debts (which may require additional fundraising), refunds or otherwise expends contributions...." Id. Thus, one could reasonably infer that Head played "a significant role in managing the financial activities of the judge's campaign," id. at 251 (2) (d), 779 S.E.2d 624, and may have had obligations in this role even after Judge Green was appointed to the Superior Court in October 2010.

Serdula filed his recusal motion approximately two months after Judge Green's appointment. At the hearing in February 2011, Serdula's trial counsel argued that the trial judge and the district attorney "were fairly close," and had a "close association," that this was an important issue, and that an evidentiary hearing was needed to inquire into "the close ties" between Judge Green and the district attorney. Despite Judge Green's own knowledge regarding Head's involvement in his recent campaign, the record does not evince that he made any corresponding disclosure to the parties.

We conclude that this proceeding was one in which the trial judge's impartiality might reasonably be questioned. Post , supra, 298 Ga. at 244 (1), 779 S.E.2d 624 ; Gude , supra, 289 Ga. at 48 (1), 709 S.E.2d 206. Even if the trial court were not inclined to recuse itself, at a minimum, the motion should have been referred to another judge. See Post , supra, 298 Ga. at 251 (2) (d), 779 S.E.2d 624 (citing Neiman-Marcus Group, Inc. v. Robinson , 829 So.2d 967, 968 (Fla. Dist. Ct. App. 2002) ("We hold that where a judge selects an attorney to serve in the special role of campaign treasurer in an election campaign, and the campaign is not remote in time from the date the relationship is revealed to the opposing party, disqualification is warranted.") ); see also Bloomington Magazine v. Kiang , 961 N.E.2d 61, 66-67 (Ind. Ct. App. 2012) (recusal warranted where party's counsel served as chairman of judge's election committee, counsel filed appearance in the matter three months after the election, and motion to recuse was filed within two years of the election).

As in Post , the extent, timing and nature of Head's involvement as treasurer are untold and need to be factually developed. Accordingly, we

vacate [Serdula's] convictions and Judge Green's order denying his recusal motion, and we remand this case

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