Georgia Supreme Court Chief Justice Harold Melton (from left), Presiding Justice David Nahmias and Justice Sarah Warren. (Photos: John Disney/ALM)Three justices of the Supreme Court of Georgia have joined with replacements for five of their recused colleagues to reaffirm that the entire bench will not step away from an election fight over Justice Keith Blackwell’s seat.
It took Chief Justice Harold Melton, Presiding Justice David Nahmias and Justice Sarah Warren and five temporary appointees less than four hours to rule that the three justices will not recuse from hearing appeals by former U.S. Rep. John Barrow and former state Rep. Beth Beskin, whose efforts to run for Blackwell’s post have been thwarted by the state.
Barrow’s attorneys said Tuesday’s decision appears to upend the high court’s precedents on two previous recusals by the full bench, runs counter to its previous rulings over trial court judges’ failures to recuse, and—absent any explanation or justification from the three justices who didn’t recuse—appear at odds with ethical standards governing the appearance of conflicts of interest established by the state Code of Judicial Conduct.
Barrow co-counsel Lester Tate, a former chairman of the state Judicial Qualifications Commission, called out the high court for deciding in less than four hours “to chart a course which runs contrary to 174 years of jurisprudence in this state, and contrary to a decision of a majority of justices on their own court.”
“We don’t know if they did so individually, or in concert, or what wisdom they might have that no other justice in the history of the state had,” Tate said. “We are certainly disappointed that they failed to recognize what most lawyers see as obvious.”
The reconsideration motion was filed by Tate and a team of Pope McGlamry attorneys, including former U.S. attorney Michael Moore of the Middle District of Georgia.
Barrow, an Athens attorney, and Beskin, a partner at the Atlanta offices of Freeman Mathis & Gary, are separately challenging the denial of their petitions for writs of mandamus that would compel Secretary of State Brad Raffensperger to reopen qualifying and reinstate an election for Blackwell’s seat.
Blackwell faced reelection until Feb. 26 when he submitted his resignation to Gov. Brian Kemp. Blackwell’s resignation does not take effect until next November—exactly six months after the May 19 election.
Kemp quickly announced plans to appoint Blackwell’s replacement, contending the resignation means the seat is currently vacant, even though Blackwell remains active on the bench.
Barrow’s lawyers argued that the refusal of three justices to recuse from a case involving a fellow justice upsets precedents set in 1991 and 1999.
“In both cases each and every justice recused, fully understanding that the cases before them required reviewing the status or conduct of someone who worked beside them daily and with whom they jointly sat in judgment of others,” Barrow lawyers argued. “These justices recused because to do otherwise created an appearance of impropriety—regardless of whether there was actual impropriety—that would sully any decision that they rendered.”
Barrow’s lawyers also contended the three justices’ decision to hear the challenge over their colleague’s seat also is at odds with previous rulings.
“The same rules that apply to Superior Court judges’ ability to judge their appearances of impartiality should apply here,” Barrow’s counsel argued. “To preserve the public’s confidence in the impartiality of the decision in this case, Chief Justice Melton, Presiding Justice Nahmias, and Justice Warren should recuse.”
Barrow’s counsel also called on the three justices to publicly disclose why they did not recuse.
The state judicial conduct code states that judges are subject to disqualification whenever their impartiality might reasonably be questioned or where a judge has a personal bias concerning a party or a party’s lawyer or personal knowledge of disputed evidentiary facts concerning a pending matter or proceeding.
“The fact that Justice Blackwell continues to occupy the position of associate justice … alongside the other justices raises the likelihood that their impartiality might be reasonably questioned,” Barrow’s lawyers argued.
Blackwell has already been subpoenaed as a witness in the increasingly heated legal brawl and has, through the state attorney general, submitted stipulated testimony. Barrow lawyers also contended that sitting justices may be called to testify about their conversations with Blackwell, the governor or his staff or the secretary of state and his staff, regarding his intention to resign.
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