He didn’t want anything to do with this mess that Bob had created. He sympathized with his colleague’s plight, but he really wanted to stay out of it. It had all the signs of professional and personal disaster.
But the Declaratory Judgment case landed in the Honorable Kenneth O. Nix’s lap when Judge Michael Stoddard recused himself. (Remember Lesson 2, Judge Stoddard was one of the defendants, so he necessarily had to recuse himself.) Even though the correct procedure would have placed the case OUTSIDE of the Cobb judicial circuit, Stoddard moved it over to Judge Nix for the purpose of containing it within the circle of control.
Immediately after learning that the case was assigned to Judge Nix, M. Portman submitted a Motion and an Affidavit to Disqualify Judge Nix, October 18, 1999. Appendix B.99.10.18a and Appendix B.99.10.18b Since the Motion for New Trial in the underlying case of divorce had been assigned to Senior Judge Jere F. White from Bartow County, it was reasonable to expect other related cases to also be assigned outside of the Cobb Circuit to avoid bias and prejudice.
In March of 2000, M. Portman learned about Ruling 220 of the Judicial Qualifications Commission.
SideBar: Official opinion, issued by the Judicial Qualifications Commission:
OPINION NO. 220, Docket No. 97-78: “A sitting Superior Court Judge in a multi-judge circuit, while expressly denying any bias, prejudice or unfairness, nevertheless requests an opinion on the following question: Should a judge in a particular circuit ever preside or sit in judgment in the divorce of another judge from the same circuit, or any matter relating to it, contested or uncontested.” The response cites Canons 1, 2, & 3 of the Code of Judicial Conduct, cites case law of King v. State, 246 Ga. 386 (1980); Wallace v. Wallace, 352 So.2d 136(1977); and Commonwealth v. Armor, 398 A.2d 173(1978), and ends with the following paragraph: “Simply stated, the public must believe in the absolute integrity and impartiality of its judges, and it is the obligation of this Commission to support and encourage such belief. Consequently, even without a showing of actual bias, prejudice or unfairness, and regardless of the merits or timeliness of a Motion to Recuse, this Commission concludes that it is inappropriate for any trial court judge to preside in any action wherein one of the parties holds a judicial office on the same or any other court which sits in the same circuit. (Emphasis added) Accordingly, the question posed is answered in the negative.” — This the 25th day of April, 1997, Judicial Qualifications Commission, by, John E. James, Chair
So, why was Judge Nix the trier of the Declaratory Judgment wherein Judges Flournoy, Robinson, Ingram, Stoddard, Bodiford, and Kreeger were the Defendants? Not only are they in the same circuit, they are all Superior Court judges. Ignorance of the law is no excuse for a Judge! Opinion 220 from the JQC had been issued in 1997, during Judge Nix’s term of office. It was his responsibility to stay current with new legislation, statues, and rulings for he had access to these changes through a variety of sources.
After learning about the JQC Opinion 220, M. Portman filed a request to amend her Motion for Disqualification.
Appendix B.00.03.07a Motion to Extend Time and Amend Motion to Disqualify the Honorable Kenneth O. Nix
Appendix B.00.03.07b Amended Motion to Disqualify the Honorable Kenneth O. Nix
Appendix B.00.03.07c Affidavit in Support of Amended Motion to Disqualify the Honorable Kenneth O. Nix
However, Judge Nix still made NO response. Consequently, M. Portman wrote to the Honorable Kenneth O. Nix, dated April 29, 2000 Appendix B.00.04.29a, in which she appealed to him for prompt action. She clearly identified how his delay had caused a violation of her due process rights and even suggested that his delay had been intentional. Any qualified and competent judge should not have needed prompting to know that he should have recused himselfimmediately upon receipt of M. Portman’s October motion.
If the Uniform Rules of Superior Court had been observed, Judge Nix would have immediately responded to the call for his Disqualification, if only to deny the Motion. See Superior Court Rule 25. It is reasonable to assume that all Motions to Disqualify Judges receive prompt and serious attention within ANY court system. Instead, Judge Nix simply watched as both plaintiff and defendants filed a series of motions throughout the six months. Judge Nix remained silent, and by his silence, barred both plaintiff and defendants from proper and adequate legal discovery.
Surpisingly, Judge Nix replied through letter of May 4, and by filing an Order of Recusal, citing bias and prejudice! Appendix B.00.05.04b. His letter, Appendix B.00.05.04a, was apparently intended to intimidate M. Portman and chastise her for her failure to understand court procedures. M. Portman is very aware of her limited education in the Law, but was not sufficiently intimidated by the judge’s letter. She replied to him with her letter of May 9, 2000Appendix B.00.05.09a in which she stated her argument that his delay had deprived her of due process by denying her adequate and timely legal discovery. Amazingly, he responded by filing yet ANOTHER recusal order! Appendix B.00.05.10a. Now, if a judge files TWO recusal orders, you’d think that means he fully intended to do so. Both recusal orders cite bias and prejudice as the reason.
Believe it or not, Judge Kenneth O. Nix ALSO signed a Petition requesting the services of a Senior Judge on this very specific case, citing yet a DIFFERENT reason! Surely our court officers don’t normally make this many “mistakes!” The Petition requesting the services of the Honorable Rufe E. McCombs does not contain a date of Judge Nix’s signature, so we don’t know whether he signed the Recusal Order first or the Petition for Senior Judge first. Because of the filing date of the Petition, it is reasonable to assume that Judge Nix first recused himself, and then joined with fellow judges in their request that Judge Rufe E. McCombs be an assisting Superior Court Judge.
What makes this so interesting is the fact that the recusals were because of “bias and prejudice.” Yet, the Petition for Senior Judge, Appendix B.00.07.06a, was because of “the volume of court business to be transacted and because the active Superior Court Judges of the Cobb Judicial Circuit are engaged in jury trials and/or their other regular Circuit duties, or are absent from the Circuit, and in order to provide for the speedy and efficient disposition of court business in the Circuit. “
Judge Nix…….REALLY! You are wiser than this! Granted, the Petition for Senior Judge, so ordered by the Honorable William T. Boyette on July 6, 2000 was VOID ab initio, but you participated in intentional denial of due process AND “judge shopping!” Together with four other Superior Court judges, you hand-picked Judge Rufe E. McCombs. Amazing!
More about William T. Boyett’s July 6, 2000 VOID order in Lesson 5. Hint: He left office as 7th district administrative judge on July 1, 2000, and the role of administrative judge was assumed by the Honorable Robert J. James.
This chapter (lesson) is in the final draft stages. Stay tuned to learn the whole story.