Fresh Loaf

The Georgia Supreme Court yesterday declined to hear arguments in the controversial case of Plant Longleaf, a coal power plant proposed in Southwest Georgia’s Early County.

Tom Crawford of Capitol Impact reports:

The justices voted 6-0 this week not to consider the appeal, in effect upholding a July decision by the Georgia Court of Appeals that will allow the Environmental Protection Division (EPD) to issue a permit for the Longleaf Energy Station.

The case involves a $2 billion, 1,200-megawatt power plant that was originally proposed by two energy companies, Dynegy of Houston, Tex., and New Jersey-based LS Power Associates. It would be the first coal-fired facility in Georgia in 20 years.

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Danielle Barbee, legal heroine

Yes, you read that right. The state Supreme Court today announced a unanimous verdict in favor of five Cheetah dancers who had challenged an Atlanta city ordinance that would’ve cost them their jobs because they were not yet 21.

Here’s the backstory: In late 2007, the city adopted a broadly worded ordinance that would’ve made bars, nightclubs and strip clubs off-limits to anyone under the age of 21. You may have assumed that was already the rule, but state law allows youngsters from 18-21 to work as exotic dancers, club DJs and even bartenders — they just can’t drink.

The city planned to deny an adult-entertainment license to anyone 21, a group that included 19-year-old Cheetah dancer Danielle Barbee and several of her co-workers, who were already dancing legally at the club. Their attorney, Alan Begner, was able to get a Fulton Superior Court judge to issue an injunction allowing the girls to keep dancing under the ordinances they’d already been issued, but the judge ruled against the young strippers.

In overturning the Fulton decision today, the Supremes ruled that the city cannot impose a minimum age for dancers that contravenes existing state law, Begner explains. Therefore, because Georgia allows 18-year-old strippers, Atlanta must follow suit.

I think that’s logic we can all agree with.

But there’s a twist! Begner says his initial reading of the Court’s ruling suggests that, not only can teens work in bars and nightclubs, but they can also patronize these establishments — although, of course, they can’t be served alcohol.

If this is so, it would re-open the door for 18-and-over nightclubs, a type of business outlawed by the city back in 2001.

(Photo by Joeff Davis)

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WABE’s Jim Burress reports the names of two people the Obama administration might name to become the next  U.S. Attorney for Georgia’s Northern District. (Check out his report to see who they are.)

David Nahmias, the previous U.S. Attorney, recently resigned after Gov. Sonny Perdue appointed him to the Georgia Supreme Court.

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Oh, you thought I was talking about the DOJ exempting the Peach State from the strictures of the Voting Rights Act of 1965? Don’t make me laugh. No, this time the feds have lifted their investigation into whether Georgia courts were discriminating against Muslims, burn victims and the Invisible Man.

Confused? We’ll let Georgia Supreme Court spokesperson Jane Hansen explain:

The Civil Rights Division of the U.S. Department of Justice has closed its review of how Georgia courts handle the wearing of religious head coverings. The review is no longer necessary based on a new policy that permits headgear in court worn for religious or medical reasons, says a recent letter from a Justice Department official. Last month, the Judicial Council of Georgia – the policy-making body of Georgia’s courts – unanimously adopted the measure to take effect in every court in Georgia.

You may recall that, last month, the Judicial Council of Georgia, the policy-making body for Georgia courts, ruled that head-coverings worn for religious or medical purposes — such as the hijab worn by Muslim women —  would be allowed in Georgia courtrooms.

Apparently, the issue was raised last year when some doofus city court judge in Douglasville ordered a Muslim woman jailed for contempt of court after she refused to remove her headscarf.

This doesn’t mean you can wear a sombrero or a foam cheesehead hat into court, as Hanson explains:

The new policy balances a court’s security concerns with a person’s right to practice his or her faith in public. Baseball caps and other headgear will continue to be banned from courtrooms, but head coverings worn for religious or medical reasons will be permitted. If a security search is deemed necessary, it can be conducted privately by a security guard of the same gender.

Granted, I didn’t even realize Georgia was under review by the DOJ. But now that we’re free from Big Brother’s oppression, doesn’t it feel good?

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U.S. Attorney David Nahmias was just named as Gov. Sonny Perdue’s pick for the Georgia Supreme Court. This from WSB Radio:

“David has the ability to serve this state well and is someone who we
can trust to guard this country’s bedrock principles,” said Governor
Perdue. “His integrity, commitment to public service and strict
adherence to the law as written will make him an excellent Justice.”

Nahmias will replace Leah Ward Sears, the former state chief justice who resigned in June. That means Obama better appoint his replacement soon. Nahmias has been U.S. attorney in Atlanta since 2004.

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The Juidicial Council of Georgia, the policy-making body for Georgia courts, brought a welcome degree of common sense to Georgia’s courtrooms by making it clear in a statement released today that hijabs — headscarves traditionally worn by Muslim women — may, like similar head coverings allowed for religious or medical purposes, be worn inside those buildings during official proceedings.

The official ruling states:

“Head coverings are prohibited from the courtroom except in cases where the covering is worn for medical or religious reasons. To the extent security requires a search of a person wearing a head covering for medical or religious reasons, the individual has the option of having the inspection performed by a same-sex officer in a private area. The individual is allowed to put his or her own head covering back on after the inspection is complete.”

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On Monday, the Georgia Supreme Court will hear oral arguments over whether touch-screen voting — those controversial courtesy of Diebold that were ushered in after the 2000 presidential election clusterfuck — should be used in the state.

Early voting in downtown Atlanta, October, 2008,

The case stems from a 2006 challenge brought by Garland Favorito, who says the machines don’t produce a recorded ballot — you know, with results — and are open to tampering. (You can read about the plaintiffs’ concerns at Voter GA.)

After the jump, the case summary from the state Supreme Court communications office:

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The AJC reported yesterday that the city of Columbus just won a big lawsuit against Expedia over the question of whether the online travel agency was cheating the city out of a portion of the hotel occupancy tax. The Georgia Supreme Court ruled 4-3 that, yes, the company was doing just that.

This is very good news for Atlanta, which is currently suing 17 travel websites — Travelocity, Orbitz, Priceline.com, etc. — over just the same issue. Says Atlanta City Attorney Jerry Deloach:

“Atlanta is pleased with the Supreme Court’s decision and looks forward to recovering past due occupancy taxes in its pending case, as well as securing compliance with state and local tax laws going forward.”

The way online travel agencies make money is they buy up blocks of hotel rooms at a discount, then market those rooms to consumers at a higher rate.

The cities, however, are claiming that while the websites pay the local hotel tax — 7 percent in Atlanta — based on their discounted price, they charge the customers the tax based on the full retail price, and pocket the difference. The argument is that cities should be collecting taxes that correspond to the final rate that a customer pays to stay in a hotel room.

Look for Atlanta to announce a legal settlement in coming months.

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Presiding Justice Carol Hunstein was unanimously elected today to become the new Chief Justice of the Georgia Supreme Court. She succeeds Chief Justice Leah Ward Sears, who is retiring and entering private practice.

Prior to her appointment in 1992 by then-Gov. Zell Miller, Hunstein served as a DeKalb County Superior Court judge and a private-practice attorney. She was the second woman to serve on the Georgia Supreme Court and the first to serve as president of the Council of Superior Court Judges.

Hunstein, a Florida native, served on a variety of commissions, including the Georgia Commission on Gender Bias in the Judicial System and the state’s commission on child support guidelines. She’s also served on the advisory board of several organizations, including the Georgia Campaign for Adolescent Pregnancy Prevention and the Georgia Commission on Access and Fairness.

Justice George Carley, a former state lawmaker state Court of Appeals Chief Judge, was elected Presiding Justice. Former Gov. Zell Miller will swear in both to their new positions on July 1.

Interesting tidbit about Hunstein: This will be her second stint as Georgia Supreme Court Chief Justice. Kind of.

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In a ruling that may be the most exciting thing to happen to left-hand turns since the invention of passenger side airbags, the Georgia Supreme Court today overturned a 2006 law requiring drivers turning left onto a multi-lane roadway to turn into the left-lane.

The Supreme Court says the law’s wording is “unconstitutionally vague” and states “a person of common intelligence could not determine with reasonable definiteness that the statute prohibits the making of a left turn into the right lane of a multi-lane roadway.”

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The Georgia Judicial Nomination Commission is accepting nominations to replace state Supreme Court Chief Justice Leah Ward Sears, who is retiring in June to become the next U.S. Supreme Court Justice and legalize marijuana practice law in Chicago.

Nominees will receive a questionnaire that must be returned by June 22. The commission will meet on June 29 to interview nominees. The commission will select five qualified candidates. A list of those selected will be sent to Gov. Sonny Perdue. He is expected to ignore the short-list and instead appoint the Honorable Judge  Joseph Wapner.

If you’re really interested in applying for this, send me a line and I’ll forward you the info from Perdue’s office. If you have your own connections, well then, good luck!

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The Chief Justice of the Georgia Supreme Court unveiled her post-retirement plans in an afternoon press release and, surprise!, they don’t include a mention of serving on the nation’s highest court.

Whether Leah Ward Sears has reason to believe she’s not on Pres. Obama’s SCOTUS shortlist (and, in all likelihood, she’s probably not) or she’s simply impatient to start her next career, she’s apparently decided to move on. Here’s what she’s planning to do:

Today she announced she will join the law firm of Schiff Hardin, a nationally-renowned firm based in Chicago. The law firm has nearly 400 lawyers and offices in seven major American cities, including Atlanta, where Chief Justice Sears’ practice will be based. She will begin working there Oct. 15 of this year.

The firm, founded in 1864, has a general practice legal program with a particular concentration in high-profile public corruption and white collar crime.

But wait, that’s not all:
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1- AJC Redesign: Your thoughts? (Scott Henry makes a few observations on the new print design of our dear ol’ daily – as do some of our readers. Xanax would be a subscription booster).

2- Rep. John Lewis arrested at Darfur protest in D.C. (When the news reminds you of the real news, you need to work on your attention span – I’ll include myself in that bunch).

3- WSB: Georgia swine flu case confirmed (We’ve officially joined the swine flu pandemic).

4- Clever headline about N. Ga. drug bust elicits giggles (When “cops deal blow to Mexican drug cartels,” has it hit the fan?).

5- William Mize granted stay of execution from Ga. Supreme Court (The former Ku Klux Klan leader had sought the death penalty after being convicted of killing a fellow klansman).

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OK, the headline oversimplifies things a bit. As with nearly everything that deals with the law, it’s a little more complicated.

The Georgia Supreme Court decided today 4-3 not to overturn a murder conviction for a DeKalb man who killed his girlfriend simply because the jury wasn’t told explicitly that, since the killing was motivated by the victim’s infidelity, they had the option to instead find the defendant guilty of voluntary manslaughter.

Told you it was complicated. The way I see the Supremes’ decision, it affirms that, as Presiding Justice Carol Hunstein wrote in her dissent, “adultery may constitute provocation sufficient to mitigate a killing.” In other words, if you killed your wife or significant other during a crime of passion because he/she was stepping out on you, it’s possible to get away with murder (although you’re still likely to go to prison on a lesser charge).

But today’s ruling also holds that the judge at your trial isn’t responsible for explaining all this to the jury. The moral of the story is, get a good lawyer!

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NPR and MSNBC, citing anonymous sources, both report Supreme Court Justice David Souter has notified the White House that he plans to retire at the end of the current court term. (The Supreme Court declined to comment on the reports.)

The reports say Souter would remain on the bench until President Barack Obama’s nominee to replace him is confirmed. It would be the first Supreme Court Justice pick by the president. NPR says most observers expect the president to make his first appointment to the court a woman.

Since Obama was elected, many Peach State political observers have pointed toward Georgia Supreme Court Chief Justice Leah Ward Sears as a worthy nominee if a vacancy appears on the bench. Sears announced her retirement from the highest court in the state last October. She steps down on June 30.

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William Mize, the white supremacist convicted in 1995 of killing Eddie Tucker of Hull, Ga., last night was denied a stay of execution and request for appeal by the Georgia Supreme Court.

He’s scheduled to be executed by lethal injection tonight at 7 p.m.

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According to a press release from the court:

The Supreme Court of Georgia today issued a stay of execution for William Mark Mize to give the trial court judge time to rule on Mize’s Extraordinary Motion for New Trial. Chief Judge Lawton Stephens of the Western Judicial Circuit on Monday denied Mize’s request for a hearing on the motion, but he did not rule on the motion itself. An appeal to the state’s highest court is therefore premature.

In today’s order, the Georgia Supreme Court states the stay will automatically expire 24 hours after the judge rules. Mize, 52, was due to be put to death tonight at 7:00 p.m. by lethal injection for the 1994 murder of Eddie Tucker in Oconee County.

Some background on Mize from the Athens Banner-Herald:

Mize, who led a small group authorities said was related to the Ku Klux Klan, was convicted in December 1995 of killing 34-year-old Eddie Tucker of Hull.

In October 1994, a few members of the group – and Tucker, who had filled out an application to join – went into the Northwestern Oconee County woods, supposedly to camp, after Tucker and another group member failed to follow Mize’s orders to burn down a purported crack house in Athens.

Mize killed Tucker with a shotgun blast, prosecutors said.

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City Hall had three separate, unrelated civil cases before the Georgia Supreme Court that received rulings yesterday. The result was a mixed bag with no unexpected blows to city coffers – but no big victories either.

First, the least interesting case: The city was a co-defendant with the state in a wrongful death suit involving a passenger in a taxi that veered off the highway and hit a tree. The state DOT was sued for allowing a tree to remain too close to the Downtown Connector; the city was sued for a botched taxi safety inspection. The High Court ruled there was no compelling evidence to suggest the city was aware of inspection shortcomings. That’s one win for the city.

Next up, a biggie: Atlanta has brought suit against a number of online hotel booking services – Expedia, Travelocity, etc. – because they don’t collect the city-imposed hotel tax when accepting bookings. This is an industry-wide battle being waged by cities across the country over whether online companies are required to collect local taxes on the sales they facilitate.

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This is really more sad than anything else.

Sheree Whitfield, a refugee of Bravo’s successful train-wreck of a reality series, “Real Housewives of Atlanta,” went to court to try to get a healthy chunk of alimony from her ex-husband, a washed-up Falcons player. When she lost in Superior Court, she appealed to the state Supreme Court …

Well, you can read today’s press release from the Court:

The Georgia Supreme Court has granted a motion to dismiss the appeal brought by Sheree Whitfield in her divorce from Bob Whitfield, a former Atlanta Falcons football player. She had appealed to the Supreme Court after a Fulton County court refused to grant her alimony. The couple has two young children.
On the day the parties argued their case before the Supreme Court, her lawyer filed a motion to dismiss the appeal, stating they had recently learned that the athlete had “squandered his assets.” Meanwhile his attorney filed a motion asking the Supreme Court to sanction her for bringing the appeal.
Today’s two-sentence order grants the motion to dismiss while denying the motion for sanctions.

In other words, Sheree doesn’t have anything of value to show for all the time she invested. Now she knows how “Real Housewives” viewers feel.

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Rubi Cuautle, at a vigil for slain bartender John Henderson

1. Vigil for murdered Atlanta bartender (Posts about the huge crowd that attended the vigil and the memorial fund set up for victim John Henderson speak to the community’s mobilization after the tragedy.)

2. Don’t Panic: Why is Israel bombing Gaza? (Violence in the Middle East — second in popularity only to violence at home.)

3. Intowners claim crime has become more brazen (Ironically, this post about a perceived uptick in crime was published a few hours before news broke of Henderson’s death.)

4. Lisa Borders’ home burglarized (City Council prez loses flat-screen to thieves — hours after attending a speech in which the mayor claimed crime was down)

5. ‘Real Housewives of Atlanta’ star going to Ga. Supreme Court (In lighter — but still sociologically disturbing — news, Sheree argues her divorce alimony to the state’s highest court.)

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Sheree Whitfield, one of stars of the Bravo’s televised clusterfuck “The Real Housewives of Atlanta,” will appear in Georgia Supreme Court on Monday to argue a Fulton County court’s refusal to grant her alimony and a new trial.

In court documents, Sheree’s attorneys say the lower court erred when it didn’t grant alimony to the reality-TV star. Her ex-husband, Bob, is a former Atlanta Falcons player who now operates several successful businesses, including a recording studio that earns him $50,000 annually.

His lawyer says Sheree has received more than enough compensation and is delaying a move out of the $2.6-million Sandy Springs residence awarded to her in the divorce.

“The trial court left no stone unturned in regard to determining the assets and incomes of the parties,” [Bob Whitfield's] lawyer argues in the briefs. From the divorce, she receives a total yearly income of $113,422. In addition, she gets a portion of three NFL retirement programs. His attorney argues she should be fined $2,500 for bringing a frivolous appeal solely for the purpose of delaying the time when she’ll have to vacate the Sandy Springs home.

Whitfield, as we’ve mentioned, is one of the four “real housewives” who’ve recently fallen on hard times, and in the process, become even more “real.” The television show was recently picked up for a second season by Bravo and is sure to be another trainwreck of exurban charity dinners, awkward cocktail parties and montages of makeup-caked women getting pedicures. It will be a triumphant success.

Full summary of the Whitfields’ case, including numbers, names and a smorgasbord of factoids, follows after the jump.

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Yesterday, the Georgia Supreme Court took its strongest stand yet on the state’s draconian sex offender law, striking as unconstitutional a provision that punished failure to register with life imprisonment.

I welcome lawyers to throw in their two cents, but in my experience, when an appeals court throws out part of a law, it’s typically because of some technical flaw. They usually avoid ruling on the fairness of a law, because that’s a subjective measure that arguably drifts into the realm of policy – and, therefore, politics.

But, in the space of a month, the High Court has twice rapped the law as unfairly harsh. In late October, justices ruled that throwing homeless sex offenders in prison because they were unable to register an address was unfair. While the decision sent a message to legislators that they needed to temper lawmaking with an eye toward justice, it immediately affected a relatively small group.

Tuesday’s ruling, however, sweeps away an over-arching provision of the law that potentially affects all sex offenders. When first passed in 2006, the new sex-offender law changed the penalty for failure to register a change of address within 72 hours, increasing it from three years to life in prison for all violators.

In its opinion, the court described the life-sentence provision as being “grossly disproportionate” to the severity of the crime.

In a concurring ruling, Chief Justice Leah Ward Sears wrote that a life prison sentence “should be reserved for society’s most serious criminal offenders.”

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The Georgia Supreme Court today ruled against a Henry County man who argued that he should not have been required to register as a sex offender because Georgia law is too vague. As a result, James Orin Jenkins will spend the next three years in prison.

Jenkins is not a party to the constitutional challenge to the sex-offender law brought by the Southern Center for Human Rights that’s now working its way through federal courts. Instead, he’s one of several Georgia sex offenders who’ve appealed a conviction for non-registration imposed by the state’s draconian new law.

Just last month, the High Court struck a provision in the law that would have sent homeless sex offenders to prison for being unable to register a valid address with their county sheriff’s office. The plaintiff in that suit, William James Santos, had spent a year in a Hall County jail and was facing a life sentence for failing to register his address – even though he didn’t have an address.

As far as I can tell, Jenkins’ appeal was based on much narrower technical grounds, some of which hinged on whether his conviction on charges of attempted rape qualified as a “sexually violent offense.”

Anyway, it seems today’s ruling will have little impact on the Southern Center’s lawsuit. Watch this week’s paper for my update on the latest news from that case and also look here.

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The Georgia Supreme Court has ruled that a still-incomplete 1,014-acre project across the harbor from historic Cumberland Island does not have to adhere to state-ordered environmental standards for the area.

In a 5-2 decision, the court ruled that the 1970 Coastal Marshlands Protection Act does not extend to “residential upland areas.” A coalition of environmental and conservation groups sued because they said the development would increase polluted stormwater into marshlands and endanger marine life. The residential portion of the project should have been considered during the permitting process that gave the greenlight to docks and marinas in the harbor.

A dash of irony — Land Resource, the builder of the Cumberland Harbor development, filed for Chapter 11 bankruptcy protection late last month. The future of the project is unknown.

To read the court’s ruling summary, follow the jump.

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The state Supreme Court unanimously ruled today that Public Service Commission Democratic nominee Jim Powell can stay on the ballot.

UPDATE: Grift has some discussion on his site about the ruling, plus the actual opinion. You can also download it here.

Here is the release from the court:

STATE SUPREME COURT AFFIRMS POWELL’S RUN FOR PSC

Atlanta, Oct. 30, 2008 – The Supreme Court of Georgia today upheld James R. Powell’s right to run in Tuesday’s election for a seat on the Public Service Commission.

Secretary of State Karen Handel had appealed a Fulton County Superior Court ruling that sided with Powell and overturned her decision finding Powell ineligible to run based on where he lived. In June 2008, Handel first challenged Powell’s qualifications a month after he filed his intent to run as a Democrat against Republican Lauren McDonald for the PSC District 4 post. She argued that a homestead exemption Powell had on his Cobb County property established an irrefutable presumption of legal residence and proved Powell did not live in the North Georgia district he seeks to represent. In her appeal, Handel argued that under state law, the trial court should have given deference to her interpretation of the law on residency that she is in charge of enforcing.

But in today’s unanimous decision, written by Justice Robert Benham, the Supreme Court disagrees. “It is the role of the judicial branch to interpret the statutes enacted by the legislative branch and enforced by the executive branch…, and administrative rulings will be adopted only when they conform to the meaning which the court deems should properly be given,” 8-page opinion says. The facts of the case are not in dispute, merely the interpretation of the law, the opinion points out.

In 2006, Powell purchased a second home in Towns County, which is in District 4. In 2007, he attempted unsuccessfully to transfer his homestead exemption from Cobb to Towns County, but he missed the filing deadline. Evidence shows Powell spends more than 60 percent of his time in Towns County, where he has voted three times, attends church and pays taxes.

The residency law, which is Section 21-2-217 in the Official Code of Georgia, lists 15 rules for determining a candidate’s legal residence. At least seven apply to Powell, the Supreme Court has found, “but the Secretary’s decision did not take into account any of the applicable rules other than the homestead exemption rule.”

“We agree with the superior court that the Secretary committed an error of law that authorizes reversal of the Secretary’s decision,” today’s opinion says.

More to come.

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