News

Judge in lawsuits against city steps down from the cases

MIKE OWEN

mowen@ledger-enquirer.com

The city of Columbus will ask the judge who replaces Superior Court Judge Hilton Fuller to offer more extensive oversight of attorney fees for Sheriff John Darr's lawyers.
The city of Columbus will ask the judge who replaces Superior Court Judge Hilton Fuller to offer more extensive oversight of attorney fees for Sheriff John Darr's lawyers. mhaskey@ledger-enquirer.com

Superior Court Judge Hilton Fuller has recused himself from all three lawsuits filed against the city by four local officials, Mayor Teresa Tomlinson said today.

Fuller was considering a motion for recusal filed by attorneys for the city in the lawsuit filed by Sheriff John Darr. He had reportedly offered to “partially recuse” himself, but this morning contacted attorneys on both sides, saying he had decided to completely recuse himself so he can take better care of his wife, who is suffering from a serious illness, Tomlinson said.

In addition to stepping down in the Darr case, Fuller is recusing himself in a suit filed by Superior Court Clerk Linda Pierce and a suit filed jointly by Municipal Court Clerk Vivian Creighton-Bishop and Marshal Greg Countryman. All three suits accuse Columbus Council, Tomlinson and other top city executives of under-funding their offices and following an improper budget process in doing so.

The city’s attorneys earlier had filed the motion asking that Fuller be recused or disqualified from hearing the case because of improper communication between the judge and lawyers representing Darr.

In the motion, attorneys for the city claim that attorneys for Darr improperly communicated with the judge without their knowledge or inclusion — ex parte communication in the parlance of the courts — and Fuller should hence be removed because he may have been improperly influenced by the communication.

Kellye Moore, one of Darr’s attorneys, said Fuller’s decision to recuse himself had nothing to do with the motion.

“He’s not recused himself because of any bias or any wrongdoing or anything like that,”  Moore said. “It’s a decision that he made on his own and had nothing to do with the motion filed by the defendants in our case.

The motion states that an affidavit by Moore was sent to Fuller, but not officially filed nor sent to defense attorneys. When attorneys for the city learned of the communication, they sent a message to Fuller immediately, asking that he not read the affidavit or emails attached to it.

Fuller responded that he had received the material the day before he received the message from the city’s attorney, Carter Schondelmayer.

“Before I got your letter I read the brief and began to read the Affidavit. I (skimmed) the first few pages before I concluded that I ought not to read further without discussion with counsel,” Fuller wrote.

Fuller then wrote that he was going to order attorneys for Darr to deliver a copy of the first 10 pages of the Moore affidavit to the city's attorneys.

At first, Darr’s attorneys refused to turn over the affidavit, then turned over a redacted copy, which attorneys for the city said was insufficient. Following a hearing on Jan. 8, Fuller ordered Darr’s attorneys to give the full affidavit to attorneys for the city, but not the attachments.

After reading what the judge had read, attorneys for the city filed their motion to recuse Fuller.

“The affidavit … revealed an extraordinarily unorthodox, ten-page ex parte communication which argued the merits of the motion, attempted to bolster her (and her co-counsel’s) alleged expertise and experience, and declared her opinion of no political design or influence of the (Georgia Sheriffs Association) in the litigation,” the motion states. “Generally, the affidavit engaged in highly inappropriate advocacy and testimony put before the court by counsel for Sheriff Darr …”

Tomlinson called the actions that led to the motion for recusal “a shocking revelation to us.”

“It was gravely disturbing,” Tomlinson said. “Contrary to a situation where the judge is just being a judge, in this case he was the trier of fact. In this case the judge is also the juror. So this is akin to a lawyer talking to a juror privately about the case, while the juror is impaneled.”

Tomlinson said if the recusal causes any delay in the court proceedings, it would be “negligible,” so it shouldn't add much if any extra attorney fees.

“There is an administrative process (to appoint a new judge) and that will be expedited, obviously,” Tomlinson said. “We have faith in that system and we’re very much looking forward to continuing on exactly as has been scheduled.”

The Darr and Pierce cases are scheduled to be tried in March in Superior Court and the Countryman/Bishop case will be heard in April in the Georgia Court of Appeals.

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