UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_______________________________________
JAMES B. STEGEMAN,
Plaintiff/Appellant APPEAL NO. 08-16174-C
DISTRICT COURT NO. 1:08-CV-1971
Vs. REPLY TO APPELLEES’
RESPONSE -
APPELLANT’S MOTION
TO RECUSE
SUPERIOR COURT STONE
MOUNTAIN JUDICIAL CIRCUIT;
SUPERIOR COURT JUDGE
CYNTHIA J. BECKER;
GEORGIA POWER CO.;
BRIAN P. WATT;
SCOTT A. FARROW;
Defendants/Appellees
_________________________________________________________
COMES NOW Appellant and files his Reply to Georgia Power, Scott
Farrow, and Brian Watt’s1 Response in Opposition to Appellant’s Motion to
Recuse.
The above listed Appellees, appear to complain that Appellant has shown no
basis for recusal, and requests that Recusal be Denied. Appellant replies to the
allegations made in Appellees’ Response and will show further sufficient basis for
recusal in the following Argument and Citations.
1
Brian Watt signed the letter accompanying Appellees’ Response, one could easily get
confused on who is representing who from Troutman Sanders in this Appeal.
ARGUMENT AND CITATION OF AUTHORITY
Assuming that this Court did in fact recently state “the claim of bias under
§455 must show that the bias is personal as distinguished from judicial in nature”;
it has also been stated that there can be a showing that the Judge is partial to one
party over another party as well.
Parties to civil cases have a constitutional right to a fair trial. Latiolais v.
Whitley, 93 F.3d 205, 207 (5th Cir.1996); Lemons v. Skidmore, 985 F.2d 354, 357
(7th Cir. 1993); Bailey v. Sys. Innovation, Inc., 852 F.2d 93, 98 (3d Cir. 1988).
And “[t]rial before an ‘unbiased judge’ is essential to due process.” Johnson v.
Mississippi, 403 U.S. 212, 216 (1971); accord Concrete Pipe & Prods. v. Constr.
Laborers Pension Trust, 508 U.S. 602, 617 (1993) (“due process requires a
‘neutral and detached judge in the first instance’”) (citation omitted).
The United States Supreme Court has stated: “and this ‘stringent rule may
sometimes bar trial by judges who have no actual bias and who would do their very
best to weigh the scales of justice equally between contending parties,’ Offutt v.
United States, 348 U.S. 11, 14 (1954),
Marshall v. Jerrico, 100 S. Ct. 1610, 446 U.S. 238, 64 L. Ed. 2d
182, (1980). Pg. 243:
“We have employed the same principle in a variety of settings,
demonstrating the powerful and independent constitutional
interest in fair adjudicative procedure.*fn2 Indeed, "justice must
satisfy the appearance of justice," and this "stringent rule may
sometimes bar trial by judges who have no actual bias and who
would do their very best to weigh the scales of justice equally
2
between contending parties," In re Murchison, 349 U.S. 133,
136 (1955). See also Taylor v. Hayes, 418 U.S. 488 (1974).”
Further, when the Judge has actual knowledge that there is a reason to
recuse/disqualify themselves, they have an obligation to do so, even without a
party moving for the recusal.
“…if the judge sitting on a case is aware of grounds for recusal
under section 455, that judge has a duty to recuse himself or
herself. See, e. g., Nicodemus v. Chrysler Corp., 596 F.2d 152,
157 & n.10 (6th Cir. 1979).” United States v. Sibla 624 F.2d 864
“If the Due Process Clause requires recusal only when a party
could prove actual bias arising from personal animus in the
judge’s heart or cold cash in the judge’s pocket, then the rights of
parties to a fair and impartial judge would be imperiled.
Probabilities of unfairness, likelihood of bias, and unacceptable
perceptions are at the heart of circumstantial evidence, which is
sometimes the only evidence available on the issue of whether a
judge is constitutionally required to disqualify” Randall T.
Shepard, Campaign Speech: Restraint and Liberty in Judicial
Ethics, 9 Geo. J. Legal Ethics 1059, 1087 (1996)
Fact: Judge Frank Hull is married to Antonin Aeck of Lord, Aeck and
Sergent2 an architect firm. Georgia Power a couple of years ago, hired to its Board
of Directors a Robert L. Brown Jr., who “got his start with Lord, Aeck and
Sergent.”3 A “Google” search performed for “Aeck Troutman Sanders” returns
2
Lord, Aeck and Sergent is a prestigious architect firm in Atlanta.
3
“Georgia Power Adds New Board Members” from PR Newswire:
http://www.prnewswire.com/cgi-bin/stories.pl?ACCT=104&STORY=/www/story/05-21-
2003/0001951752&EDATE=
3
“about 131” results “in 0.12 seconds”;4 “Google” search for “Aeck Troutman
Sanders Georgia Power” returns “about 98” results “in 0.44 seconds”;5 and
“Google” search for “Aeck Georgia Power” returns “about 865” results “in 0.27
seconds”.6 Rather than state every document Appellant read on the relationships,
he points to the results of the research.
The Trust for Public Land Georgia Advisory Council consists of: Antonin
(Tony) Aeck of Lord, Aeck & Sargent; Patricia Barmeyer of King & Spalding,
LLP;7 Ben Harris of Georgia Power Co.; and Wayne Vason of Troutman Sanders,
LLP8
Clearly, Judge Hull has reason to disqualify herself. As was stated in Brief
Amicus Curiae of 27 Former Chief Justices and Justices In Support of Petitioners
in Caperton, et., al., v. At. Massey Coal Company, Inc., et., al.,. On Petition for a
Writ of Certiorari to the Supreme Court of Appeals of West Virginia, No. 08–22:
http://www.google.com/search?hl=en&rlz=1B3GGGL_enUS273US313&q=aeck+trout
4
man+sanders&start=0&sa=N
http://www.google.com/search?hl=en&rlz=1B3GGGL_enUS273US313&q=aeck+trout
5
man+sanders+georgia+power&btnG=Search
6
http://www.google.com/search?hl=en&rlz=1B3GGGL_enUS273US313&q=aeck+georgi
a+power&btnG=Search
7
Appellant points to Judge Duffey’s past partnership with King & Spalding.
8
http://www.tpl.org/tier3_cd.cfm?content_item_id=1319&folder_id=249 * Updated
1/2009
4
On page 7: “Lord MacMillan, Law and Other Things 217-18
(1937). Jerome Frank noted the peculiarly individual factors that
can influence decisions: "these uniquely, highly individual,
operative influences are far more subtle, far more difficult to get
at. Many of them, without possible doubt, are unknown to
anyone except the judge. Indeed, often the judge himself is
unaware of them." Jerome Frank, Courts on Trial 151 (1950).”
On page 8: “But a judge who bases recusal not only on a
subjective evaluation of fairness, but also on a more objective
appearance of fairness, preserves much more effectively the
litigants’ due process right to an impartial judge.”
In reality, the relationship between the Judge and Appellees, can and will
give the average layperson the appearance of bias/partiality/impropriety; whereas
recusal will give the appearance of “fairness” and “much more effectively the
litigant’s due process right to an impartial judge.” Judge Hull had a duty to
disclose the relationships, as well as a duty to disqualify herself, she failed to do
so. As Chief Justice Rehnquist noted, in his dissent, in Lilyeberg v. Health
Services Acquisition Corp., 486 U.S. 847, 871 (1988):
"Subsection (b) of § 455 sets forth more particularized situations
in which a judge must disqualify himself. Congress intended the
provisions of § 455 (b) to remove any doubt about recusal in
cases where a judge's interest is too closely connected with the
litigation to allow his participation."
Appellees’ page 2: “…proper for a judge to sit in the same case upon
remand…”. Judge Becker has supposedly set a hearing for Summary Judgment in
5
the Superior Court action.9 As of today’s date, March 3, 2009, the Superior Court
has refused to show on the Docket Report Appellant’s Responsive Pleadings filed
on February 24, 2009.
Appellees’ page 2 continues: “another deliberate attempt to harass
Appellees and frustrate the resolution of this case”; with *fn1 bringing up Motion
to Recuse Judge Becker in Superior Court and Motion to Recuse Judge Duffey in
District Court.
The Appellees, have involved other parties in a covert attempt to hide the
fact that they have already broken the law concerning the Land Registration Act.
The reformation that they claim they want performed has already taken place,
making them and anyone else involved in manipulating the land documents on file
at DeKalb County, criminals. The Georgia statute and The United States
Constitution are explicit on such actions, statute states any person involved, and
US Constitution states that the crime is one for which an indictment is not needed.
O.C.G.A. §44-2-43
Any person who: (1) fraudulently obtains or attempts to obtain a
decree of registration of title to any land or interest therein; (2)
knowingly offers in evidence any forged or fraudulent
document in the course of any proceedings with regard to
registered lands or any interest therein; (3) makes or utters
any forged instrument of transfer or instrument of mortgage or
9
The hearing notice was sent to Appellant, although the “Scheduled Events” on the
Docket Report do not reflect a hearing, or the documents filed in Response to Summary
Judgment, and other documents filed on February 24, 2009 “Exhibit 1” and the Calendar
has yet to be made available. If there are no scheduled events, and a litigant or his
attorney(s) do not appear on the Calendar, there is no hearing, period.
6
any other paper, writing, or document used in connection with
any of the proceedings required for the registration of lands or
the notation of entries upon the register of titles; (4) steals or
fraudulently conceals any owner's certificate, creditor's
certificate, or other certificate of title provided for under this
article; (5) fraudulently alters, changes, or mutilates any
writing, instrument, document, record, registration, or
register provided for under this article; (6) makes any false
oath or affidavit with respect to any matter or thing provided
for in this article; or (7) makes or knowingly uses any
counterfeit of any certificate provided for by this article shall
be guilty of a felony and shall be punished by imprisonment
for not less than one nor more than ten years.
O.C.G.A. §44-2-44
Any clerk, deputy clerk, special clerk, or other person
performing the duties of the office of clerk who: (1)
fraudulently enters a decree of registration without authority of
the court; (2) fraudulently registers any title; (3) fraudulently
makes any notation or entry upon the title register; (4)
fraudulently issues any certificate of title, creditor's certificate,
or other instrument provided for by this article; or (5)
knowingly, intentionally, and fraudulently does any act of
omission or commission under color of his office in relation to
the matters provided for by this article shall be guilty of a felony
and shall be removed from office and be permanently
disqualified from holding any public office and shall be punished
by imprisonment for not less than one nor more than ten years.
The United States Constitution:
Amendment 5 - Trial and Punishment, Compensation for
Takings. Ratified 12/15/1791:
No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a
Grand Jury, except in cases arising in the land … nor be
deprived of life, liberty, or property, without due process of
law; nor shall private property be taken for public use,
without just compensation.
7
Because of the parties involved and the amount and kind of criminal activity
involved, both the State and Federal RICO acts come into play.
Georgia’s RICO Act:
Theft By Deception:
See Robinson v. State, 198 Ga. App. 431, 433 (401 SE2d 621)
(1991). Theft by deception is committed when a person "obtains
property by any deceitful means or artful practice with the
intention of depriving the owner of the property." OCGA 16-8-3
(a). "A person deceives if he intentionally: (1) Creates or
confirms another's impression of an existing fact or past event
which is false and which the accused knows or believes to be
false; [or] (2) Fails to correct a false impression of an existing
fact or past event which he has previously created or confirmed. .
. ." OCGA 16-8-3 (b). Although OCGA 16-8-3 (b) (2) does not
specifically state that a deceiving person must "know[ ] or
believe[ ]" an impression is false, that state of mind is implicit in
the requirement of OCGA 16-8-3 (b) (2) that a deceiving person
"intentionally" fail to correct a false impression; without
knowledge or belief that an impression is false, there can be no
intentional failure to correct it. Deceit does "not, however,
include . . . exaggeration by statements unlikely to deceive
ordinary persons in the group addressed." OCGA 16-8-3 (c).
Under Georgia Law, the charge for “using a false document does not apply
on the one who prepared the document:
“We agree with the State that the Court of Appeals erred when it
held that a charge of "using" a false document under OCGA 16-
10-20 applies only to a person who uses a false document that
was prepared by another.” State v. Johnson, supra at 837
State v. Luster, 204 Ga. App. 156, 158 (1) (a) (ii) (419 SE2d 32)
(1992). Even construing OCGA 16-10-20 strictly against the
State, see generally Jowers v. State, 225 Ga. App. 809 (2) (484
SE2d 803) (1997), the language therein unambiguously prohibits
an individual from making or using any false writing or
8
document, without regard to the identity of the individual who
initially made or subsequently used the false document.
The Appellees in this matter have been in an intertwined conspiracy in their
covert attempt to hide the fact that they have broken numerous Georgia and United
States criminal laws. The following statement from Appellees’ Response is
another fine example of what Appellant has had to endure throughout both
Superior Court and US District Court duration: “Appellant’s Motion seems to
provide more of a platform for voicing his political views…”
Appellees would have one believe that all the procedural, technical, legal
violations by these Appellees are from Appellant’s voicing his “political views”?;
and that the following are “political views”: the Constitutions of Georgia and the
United States; statutes concerning real property and the use of fraudulent land
documents; the Civil practice acts; Due process of law; ADA Title II; meaningful
access to the Courts; wanting to be treated equally; violations of Oaths of Office.
Appellant doesn’t believe he has ever heard of anything so ludicrous.
One could safely assume that the outcome of the Summary Judgment as well
as the outcome of this Appeal has been pre-determined.
Appellees bring up Motion to Recuse Judge Becker, who participated in the
covert action to hide the fact that the law has already been broken; and who has
consistently violated Appellant’s Rights, refused to take steps mandated by Georgia
9
statute concerning real property, ignored a “protective” Motion to Stay, and
allowed opposing counsel to take over and manipulate the Court system.
Appellees bring up the Motion to Recuse Judge Duffey as well, Judge
Duffey violated Appellant’s Rights as well, and went further, violating Appellants
First Amendment Rights claiming that Appellant and Ms. McDonald had been
“sued by Wachovia for fraud”10, a total lie; Judge Duffey’s Order stating that was a
mean, irrational display to cast a criminal shadow upon the Appellant.
Further, the time for to resolve the matters between Georgia Power and
Appellant was long ago, they refused to do so, instead they involved other
individuals in their covert conspiracy to steal land from the homeowners on
Sheppard Road by using a fraudulent easement document signed by a man that
never existed. When Appellant continued to insist the document did not pertain to
his property, Georgia Power had the document manipulated and put into County
records, see “Exhibit 2” The proof of this is that they want a “Reformation”11 of
the handwritten document, show they want Land Lot changed from 13 to 73 and
the spelling of the road in the reformation request is Shepherd Rd, the exact same
spelling that is on the Certified land document obtained from DeKalb County. The
opposing attorneys in both the Superior Court action and the District Court action
are not so stupid that they have not noticed the proper spelling of Sheppard Rd.
10
Judge Duffey’s Opinion and Order Dismissing the case, pg. 2 fn1, 2nd ¶
11
Defendant’s First Amended Answer and Counterclaim Superior Court
10
There is no other logical explanation to have the road still misspelled, they cannot
afford for the attached Certified Document to come into play. Just as the hired
“land document examiner” whose Affidavit is being used in Superior Court for
their Motion for Summary Judgment, did not find the document, that Appellant has
attached a Certified copy of from DeKalb County?
So, the Appellees have shown that they continue to break the law to cover up
their crimes, Judge Becker has refused to act against the crimes, District Court
joined the conspiracy when that Court refused to act. There is no better
explanation Appellee has for all of these Appellees to object to a Motion to Recuse
a Judge that they have personal ties with except….they know the outcome if all
parties stay in place. Appellees need look only to themselves as the ones who
have harassed, and frustrated the resolution.
Since this Court refused to appoint counsel to assist Appellant, Appellant
will be practicing Abundans cautela non nocet. Appellant truly believes that had
counsel been appointed, there would not be further violations of his Rights.
Furthermore, the Courts in Georgia have made it clear, they do not care about
disabled or pro se litigants and have a total disrespect for both.
Courts in Georgia have consistently violated the Rights of the disabled, and
granted immunity to the state; see US v. Georgia, 126 S. Ct. at 882 in which The
United States Supreme Court reversed the 11th Circuit’s decision in it’s entirety and
11
remanded the case. In Georgia, the Supreme Court included instructions to lower
courts as to how Eleventh Amendment Immunity and Title II should be handled,
Georgia, 126 S. Ct. at 882; the Supreme Court mandated the proper procedure for
dealing with disabled pro se litigants, ADA Title II, and the State’s immunity.
Appellant’s Appeal in Stegeman v. Georgia was not handled by either District
Court or this Court according to what The U.S. Supreme Court had instructed in
US v. Georgia.
The Supreme Court in Lane, 541 U.S. at 523-528 teaches that Title II
enforces rights under the Equal Protection Clause as well as an array of rights
subject to heightened constitutional scrutiny under the Due Process Clause of the
Fourteenth Amendment; accord Constantine, 411 F.3d at 486-487. Title II
enforces the Equal Protection Clause’s prohibition of arbitrary treatment based on
hostility, or “mere negative attitudes”, University of Ala. v. Garrett, 531 U.S. 356,
367 (2001); to private biases, Palmore v. Sidoti, 466 U.S. 429, 433 (1984).
Upon violating Title II in Stegeman v. Georgia, the Court decided Title II
unconstitutional. At that point the Court had a duty to contact the U.S. Attorney
General to inform him that Title II was unconstitutional and/or that Congress
lacked authority under the Constitution to enact Title II. The U.S. Attorney
General has a right to intervene in cases where the Constitution is challenged, or
when Congressional authority comes into question.
12
Violation of Title II makes the bias/prejudice personal; and the relationship
between Judge Hull, Mr. Aeck, Georgia Power, Troutman Sanders, King &
Spalding is not something that the Judge learned from the case.
Appellees complain about harassment and that Appellant is frustrating
resolution of the case, Appellees may as well resign themselves to the fact that if
necessary to protect his property, his Rights, and attempt to have the issues in the
case properly decided, Appellant will go The United States Supreme Court,
whether or not it meets with Appellee’s approval.
Respectfully Submitted this 4th day of March, 2009,
By: _____________________________
JAMES B. STEGEMAN, Pro Se
821 Sheppard Rd
Stone Mountain, GA 30083
(404) 300-9782
13
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_______________________________________
JAMES B. STEGEMAN,
Plaintiff/Appellant APPEAL NO. 08-16174-C
DISTRICT COURT NO. 1:08-CV-1971
Vs. REPLY TO APPELLEES’
RESPONSE -
APPELLANT’S MOTION
TO RECUSE
SUPERIOR COURT, et., al.,
Defendants/Appellees
______________________________________________________________
CERTIFICATE OF SERVICE
I Certify that I have this 4th day of March, 2009 served a true and correct
copy of the foregoing Appellant’s Reply to Appellees’ Response to Appellant’s
Motion To Recuse upon Defendants/Appellees, through their attorneys on record
by causing to be deposited with the U.S.P.S., First Class Mail, proper postage
affixed thereto, addressed as follows:
Daniel S. Reinhardt Devon Orland
Troutman Sanders, LLP State of Georgia Dept. of Law
Bank of America Plaza – Suite 5200 40 Capitol Square, S.W.
600 Peachtree Street, NE Atlanta, GA 30334-1300
Atlanta, GA 30308-2216
_______________________________
JAMES B. STEGEMAN, Pro Se
821 Sheppard Rd
Stone Mountain, GA 30083
14
(404) 300-9782
15
