PLAINTIFFS’ STATEMENTS FOR THE RECORD AND PLAINTIFFS REQUEST FOR THE COURT TO TAKE JUDICIAL NOTICE
Content
THE SUPERIOR COURT OF DEKALB COUNTY STATE OF GEORGIA JANET D. MCDONALD, JAMES B. STEGEMAN, PLAINTIFFS V GEORGIA POWER COMPANY, et, al. DEFENDANTS
CIVIL ACTION FILE NO: 07CV11398-6
PLAINTIFFS’ STATEMENTS FOR THE RECORD AND PLAINTIFFS REQUEST FOR THE COURT TO TAKE JUDICIAL NOTICE
COMES NOW, Janet D. McDonald and James B. Stegeman, Plaintiffs and files Plaintiffs’ Statements For the Record and Requests The Court to Take Judicial Notice. 1 Plaintiffs’ bring to the Honorable Court’s attention facts relevant to the Record. I. FACTS PLAINTIFFS’ REQUEST THE COURT TO TAKE NOTICE Plaintiffs first point out that March 28, 2008 Mr. Watt had hand delivered to the Court a letter addressed: “The Honorable Cynthia J. Becker, DeKalb County Superior Court, 556 North McDonough Street – Suite 5240, Decatur, GA 30030” With the salutation: “Dear Judge Becker”. “Exhibit A” Not only is it highly inappropriate it is in violation of Uniform Superior Court Rule 4.1.; Rule 4.1. Prohibition on ex parte communications. Except as authorized by law or by rule, judges shall neither initiate nor consider ex parte communications by interested parties or their attorneys concerning a pending proceeding.
Plaintiffs bring to this Honorable Court’s Attention through “Notice to the Court” instances which cause concern and may be viewed as questionable, and/or inappropriate, and/or unethical, and/or violative of Uniform Superior Court Rules, and/or Georgia Code and/or State of Georgia Bar Rules and/or other Rules and/or other Regulations.
1
and Georgia Code of Judicial Conduct, Canon 3, prohibits ex parte communications "concerning a pending or impending proceeding." “judges must scrupulously avoid ex parte communications whether or not they consider them. Judges should avoid the appearance of impropriety when they carry out their duties. Taylor v. Public Convalescent Svc., 245 Ga. 805, 806 (267 SE2d 242) (1980). See also: Ivey v. IveyS94A0264. (264 Ga. 435) (445 SE2d 258) LAWSKI.LLS (1994) “The Code of Judicial Conduct and the Uniform Superior Court Rules could not be more plain in the condemnation of ex parte communications by judges. "Judges shall not initiate or consider ex parte communications, or consider other communications made to them outside the presence of the parties concerning a pending or impending proceeding," Code of Judicial Conduct, Canon 3 (B) (7), … defined in the canon. Id. at (a-e). See, to the same effect, Uniform Superior Court Rule 4.1 ("[e]xcept as authorized by law or by rule, judges shall neither initiate nor consider ex parte communications by interested parties or their attorneys concerning a pending or impending proceeding").” At this point, Plaintiffs must question this action and the impartiality of the Judge. Further, Plaintiffs have been treated with disparity and subjected to injustices by opposing legal counsel and the Clerks of this Court, which again leads to the question of whether or not the impartiality of the Judge, the Court, and Plaintiffs Rights to equality and due process of law should be questioned. Plaintiffs show this Honorable Court the following facts: A. disabilities: • 1st page ¶2: “Plaintiff Stegeman is 100% Federally disabled and receives Supplemental Security Income of 623.00 monthly.3
2
Plaintiff Stegeman’s Disabilities 2
Plaintiffs’ Verified Complaint stated the following concerning Plaintiff Stegeman’s
Plaintiff Stegeman’s disabilities and illnesses are attached hereto as “Exhibit 1” Plaintiff Stegeman’s SSI has had the yearly increase to $634.00 monthly at present.
3
-2-
• page 17, ¶127: “Further, Plaintiff Stegeman is a Federally disabled individual, a member of a protected class.” • page 17, ¶128: “Plaintiffs informed “Georgia Power” as well as the State Troopers that he is a disabled individual.” 1. The Defendants not once inquired into Plaintiff Stegeman’s disabilities, what he suffers from, the extent of, his limitations, etc. even though the first page, ¶2 of Plaintiffs’ Verified Complaint clearly states that Plaintiff Stegeman is disabled. 2. 3. Plaintiffs informed Defendant’s legal counsel of Plaintiff Stegeman’s health related issues in the first conversation about scheduling depositions. Plaintiff Stegeman is 100% Federally disabled, a Level III patient,4 sees a doctor every thirty (30) days; receives Supplemental Security Income; a Medicaid recipient; he neither owns, nor drives a car;5 experiences high levels of discomfort from sitting in a small car, and/or sitting for long periods of time without being able to get up and move around or lie down; has a hard time riding in any car for long periods of time; when extended walking is involved uses a wheelchair - which he owns; has been permanently excused from Jury Duty; is also computer illiterate 6. B. 1. Plaintiffs’ Pro Se Status
Plaintiffs are acting on their own behalf, not out of desire, but out of necessity, to
protect their Rights to Property and Privacy as guaranteed by The State of Georgia and United States Constitutions. Unable to afford legal counsel, having been turned down by
4
Level III patient = sees a Doctor every thirty (30) days
Due to medications, Plaintiff Stegeman gave up driving a car several years ago for the safety of himself as well as the safety of others.
5
Plaintiff Stegeman has the ability to repair computers, he keeps Plaintiff McDonald’s computer running, but he personally has no use for or desire to use a computer, he cannot and does not use McDonald’s computer.
6
-3-
legal aid and Pro Bono attorneys, coupled with the fact that attorneys refuse to perform on a full contingency basis, Plaintiffs had no alternative. The violations to Plaintiffs, their Rights, property and privacy must stop. In order to continue the violations, Georgia Power resorted to libelous claims to Police Officers and Troopers that Plaintiffs are going “to kill” Georgia Power personnel. 2. Contrary to remarks made by Defendant’s legal counsel that Plaintiffs expect
“preferential treatment”, Plaintiffs have only asked to be treated fairly and equally by opposing counsel, this Court, and the Clerks of this Court. Plaintiffs show the following in support of Pro Se litigants: "Picking v. Pennsylvania Railway, (151 F2d. 240 Third Circuit Court of Appeals . In Picking, the plaintiffs civil rights was 150 pages and described by a federal judge as "inept." Nevertheless, it was held : "where a Plaintiff pleads pro-se in a suit for protection of civil rights, the court should endeavor to construe plaintiffs pleading without regard to technicalities." In Walter Process Equipment v . Food Machine 382 U.S . 172 (1965) it was held that in a "motion to dismiss, the material allegations of the complaint are taken as admitted." "From this vantage point, courts are reluctant to dismiss complaints unless it appears the plaintiff can prove no set of facts in support of his claim which would entitle him to relief' (See Conley vs. Gibson, 355 U .S. (1957); In Puckett v. Cox, it was held that a pro-se complaint requires less stringent reading than one drafted by a lawyer (456 F2d. 233) (1972 Sixth Circuit U.S .C .A.) said Justice Black in Conley v . Gibson, 355 U.S. 41 at 48 1957 "The Federal Rules rejects the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision the merits ." According to rule 8(f) FRCP "all pleadings shall be construed to do substantial justice." The Court also cited Rule 8(f) FRCP, which holds that "all pleadings shall be construed to do substantial justice." "It could also be argued that to dismiss a Civil Rights action or other lawsuit in which a serious factual pattern or allegation of a
-4-
cause of action has been made would itself be violative of procedural due process as it would deprive a pro se litigant of equal protection of the law visa vis a party who is represented by counsel . In a fair system, victory should go to a party who has the better case, not better representation."7 C. 1. Plaintiffs’ Marital Status
Plaintiffs request that the Court take notice of the fact of and expressly told to
Defendant’s legal counsel in telephone conversation that Plaintiffs are neither legally, nor common law married to each other or anyone else; co-own property together where they both live. Plaintiff McDonald is caregiver of Plaintiff Stegeman, does all the driving, computer use, etc. 2. Neither Plaintiff can represent or speak for the other; Plaintiffs are willing to accept Service of only one of each document filed, and will file and serve upon Defendants only one copy of each filing with both Plaintiffs signing each filing; for the sole purpose of ecological and economical conservation, but there is no excuse for Mr. Watt to ignore that there are two separate Plaintiffs to an action. Plaintiffs legally cannot and would not represent for the other, see: Dyer v. Dyer v. Spectrum Engineering, Inc., 245 Ga. App. 30, 245 Ga. App. 30, 537 S.E.2d 175, 537 S.E.2d 175 VERSUSLAW (Ga. App. 07/11/2000): [15]: “Her husband Steven filed a pro se response…, but as a nonattorney he could not represent Mary in this action.” *fn10 [31] “*fn10 See Gamble v. Diamond "D" Auto Sales, 221 Ga. App. 688, 689 (3) (472 SE2d 446) (1996); see generally OCGA § 15-19-51 (a) (1).” 3. Mr. Watt has never requested that both Plaintiffs be present when negotiations are
discussed, or any other matter.8 Plaintiffs had discovered that opposing counsel had a habit of confirming only portions of agreed upon matters, misleading the Plaintiffs and
7
U.S. Law Books : Pro Se Federal Decisions
Plaintiff Stegeman was listening to every call when McDonald was conversing and McDonald was listening when Stegeman was conversing, Mr. Watt, had never been advised of the fact, and never acknowledged the other party.
8
-5-
making statements of flattery for which Plaintiffs had become suspicious of the motive. 4. Opposing counsel, has stated in several documents that he talked with McDonald, rarely mentions anything about Mr. Stegeman. One of the only documents opposing counsel indicates anything about Stegeman was when he stated that “… was in the background hollering”. The facts clearly show that Mr. Watt had been advised of Mr. Stegeman’s health conditions, that Stegeman talks loudly normally. 5. By late February, Mr. Watt had been advised about Plaintiffs’ transportation difficulties. Plaintiff McDonald’s car was barely running; using a gallon of water to travel one to two miles, the passenger window does not roll up, etc. In paragraph 4 referenced phone conversation with Mr. Watt. McDonald was driving the car which was overheating, attempting to get the car safely home while talking on a cell phone with Mr. Watt. 9 who continually attempted to bait Plaintiff McDonald into an argument. Plaintiff Stegeman was passenger in the car, attempting to get McDonald not to continue the debate due to safety issues and the problems with the car and needing to get the car home. There was no conversation about rescheduling depositions. D. Experiences With The Court / Clerks
Plaintiffs have experienced several problems that should be brought to this Court’s attention. Should Plaintiffs ignore situations, they get worse; further upon Appeal, if Plaintiffs have failed to address the issues, the right to do so has been waived. Plaintiffs waive no rights concerning their civil actions and or their Appeals. 1. Plaintiffs phoned Judge Becker’s calendar clerk December 5, 2007, when they had been served with no responsive pleadings by Defendants, the On-Line Judicial system showed nothing filed by Defendants. Inquiry was made about Defendant’s responsive pleadings, Plaintiffs were told nothing had yet been filed. Plaintiffs received the Verified
Plaintiffs had spoken with this Honorable Court’s law Clerk Mr. Hash shortly before McDonald called Mr. Watt to confirm there was no deposition for April 3 rd, the second notice that there would be no deposition; the first being March 19th. Plaintiffs had filed Motion To Stay All Processes.
9
-6-
Answer December 6, 2007. Letter to Plaintiffs “that was filed with the Court today”, when Answers showed up on-line, the date showed December 3, 2007. 2. Plaintiff’s Motion to Strike Defendant’s Verified Answers,10 addressed to: “Calendar Clerk for the Honorable Judge Becker”, delivered to the Court March 8, 2008, delivery confirmed by USPS, held by the Clerk unfiled. March 12, 2008, hand-stamped “Filed” by Linda Carter. 3. 4. Plaintiffs sent with Motion to Strike, their copy and postage prepaid envelope to Motion to Stay and Rule Nisi March 20, 2008
11
mail back to them after being stamped “Filed”, Plaintiffs received empty envelope. hand delivered by Plaintiffs who attempted to have Rule Nisi hearing date set by Honorable Judge Becker’s calendar clerk. Floor receptionist called Clerk, clerk refused to appear, Plaintiffs who were told to leave Rule Nisi, it would be mailed back to them in a couple of days. 5. March 31, 2008
12
opposing counsel Mr. Watt, left a voice mail for Plaintiffs who
didn’t discover the message until the following day. Something about Judge Becker’s Clerk asked him to call about a telephone conference/hearing to be held April 1, 2008 at 9:00 a.m. for a discovery dispute. Plaintiffs were not noticed that there was a discovery dispute, there had been no attempt to conduct a discovery conference 13 with Plaintiffs who knew nothing about it. 6. 7. Plaintiffs have called the calendar clerk more than once, left message to call them April 1, 2008 no call came to Plaintiffs. Plaintiffs tried contacting the calendar back, the Clerk has never returned a call to Plaintiffs on any matter. Clerk for information about the hearing, clerk apparently unavailable, left voice mail
March 4th and 5th Plaintiffs sent FAX to Mr. Watt suggesting to call them about Motion To Strike which Plaintiffs held before mailing late in the day on March 7, 2008, the invitation to confer was ignored. “Exhibit 2”
10 11
Requested their copy of Motion to Strike, noticed it was hand-stamped
Mr. Watt knew full well that Plaintiff Stegeman’s deadline for filing Appeal Brief to U.S. 11 th Circuit Court of Appeals was due the 31st and Plaintiffs would be unavailable all that day.
12
Mr. Watt’s Certification of Compliance is without merit which Plaintiffs will address in their Response to Defendant’s Motion to Compel to be filed the same date as the current filing.
13
-7-
8.
April 2, 2008 Plaintiffs received a call from Mr. Hash, Judge Becker’s law clerk.
He claimed he had no information about a phone “hearing” and apparently did not understand why he called Plaintiffs, who told Mr. Hash they had left a message for calendar clerk. Plaintiffs also discussed the Rule Nisi that was never mailed to them, Mr. Hash found it in the file, stapled to the back of Motion to Strike.14 9. Plaintiffs have found that everything filed for Defendants is filed the same day it is signed and mailed by them. All filings by Plaintiffs are held, unfiled until a later date unless hand-delivered. E. Mr. Watt’s Prejudice/Bias Toward Pro Se and or Disabled Persons 1. Plaintiffs’ first telephone conversation with opposing legal counsel Mr. Watt, he
told them that he “plan to treat you with the same respect that I would another attorney”. Plaintiffs truly do not believe that Mr. Watt treats other attorneys the way he has treated Plaintiffs, i.e.: refusing to honor agreements – especially verbal agreements; making false statements; giving flattery in order to gain trust – so that he can do as he pleases and Plaintiffs will not be prepared for counsel’s antics; twisting telephone conversations so that the confirmation letters omit most of the agreements to be agreed upon confirmation, etc. 2. The Supreme Court of Georgia has held that legal counsel should perform with integrity, fairness, and professionalism even with Pro Se litigants in order to have the Public as a whole continue to believe in our Judicial System and that the Public’s Rights are protected from unscrupulous attorneys. See Green v. Green, (S.E.2d 457), (263 Ga. 437) 5511993. GA.2404 <http://www.versuslaw.com>, (1993):
The Rule Nisi was brought with Plaintiffs Motion to Stay, they were seeking either an expedited hearing or Protective Order so that the action would be stayed until an Order had been given concerning Plaintiffs’ Motion to Strike and Plaintiffs would be protected from Defendants legal counsels misplaced attempts to have this case dismissed for the fictitious claims of refusing to comply with discovery requests that opposing legal counsel continually alleges.
14
-8-
“[10]: Benham, Justice. All the Justices concur, except Sears-Collins, J., who concurs specially, and Fletcher, J., who concurs in the judgment only.” “[16]: 2. In addition to the purely legal question …, the role appellee's counsel played in procuring the judgment must be examined.” “[17]: In recent years, on the federal and state level, courts throughout this country have sought to encourage professionalism among lawyers … years ago this court established the Chief Justice's Commission on Professionalism … to maintain …and establish…, a sense of civility and courtesy among lawyers. … between professionalism and ethics, Chief Justice Clarke has often said that "ethics is that which is required and professionalism is that which is expected."” “[18] On one hand, the practice of law is dependent … on lawyers having respect for each other, honoring their promises, cooperating with others, and according each other a high degree of civility. On the other hand, lay persons sincerely believe that when a justicable issue arises, … they will be accorded their day in court." These expectations on the part of lawyers and lay persons are reasonable and are fully contemplated by our system of jurisprudence. Therefore, when these expectations are not fulfilled, there is understandable discontent with our system of Justice. If the bar is to maintain the respect of the community, lawyers must be willing to act out of a spirit of cooperation and civility and not wholly out of a sense of blind and unbridled advocacy.” “[20] … That spirit of cooperation and civility, with the notions of fundamental fairness that lie at the heart of the principle of due process of law, requires that attorneys, as officers of the court, make a good faith effort to ensure that all parties *fn3 to a controversy have a full and fair opportunity to be heard. *fn4 …” “[21] Given all the circumstances of this case, and especially the lengths to which appellee's counsel went to ensure that this case was tried in the absence of appellant, we hold that the proper exercise of the trial court's discretion established in Spyropoulos, supra, required that the judgment be set aside. The trial court's denial of appellant's motion to set aside was, therefore, an abuse of that discretion.” “[40] … "due process" is "'flexible and calls for such procedural protections as the particular situation demands,'" Mathews v. Eldridge, 424 U.S. 319, 334 (96 S. Ct. 893, 47 L. Ed. 2d 18) (1976), and due regard must be given to the particularities and practicalities of each case and to the effect the different types
-9-
of notice may have on state interests, see Mullane, 339 U.S. at 314-315; Tulsa Professional Collection Svcs. v. Pope, 485 U.S. 478, 489 (108 S. Ct. 1340, 99 L. Ed. 2d 565) (1988). 3. On several occasions, the first time being in February, Plaintiffs approached
Defendant’s legal counsel, Mr. Watt on having a Discovery Conference; a conference on the scope of discovery to be obtained at depositions; Discovery Planning Conference. Mr. Watt has outright refused. Mr. Watt claimed that it would be unethical considering Plaintiffs’ Pro Se status. 4. Defendant’s legal counsel filed Affidavit of Brian P. Watt, Second Affidavit of Brian P. Watt, Motion For Continuance, and Motions to Compel de dolo malo.15 CONCLUSION Defendant’s legal counsel, with knowledge of Uniform Superior Court Rules, State of Georgia Bar Rules, and Judicial Canons had hand delivered a letter directly to the Judge of this Honorable Court. Not to the Clerk as would be permissible, but directly to the Judge. Defendant’s legal counsel, understanding, and not caring that it may be viewed as inappropriate, has communicated with the Calendar Clerk and Law Clerk on issues that have been withheld from Plaintiffs. Further, without holding the mandatory 6.4 Conference with Plaintiffs, Mr. Watt calls Plaintiffs March 31, 2008 (on a day in which he factually knew that Plaintiffs would be unavailable by telephone) to arrange a telephone hearing or conference with the Court on a Motion To Compel filed without Plaintiffs knowledge of a discovery dispute. The message left by Mr. Watt for Plaintiffs was that “the clerk wanted me to call”; the hearing was to be at 9:00 a.m. the following morning. Defendant’s legal counsel has continually lied to Plaintiffs; made requests without giving a date and or time in which they were to reply; set schedules with full knowledge
“de dolo malo (dee doh-loh mal-oh). [Latin] Of or based on fraud.” Black’s Law Dictionary, Seventh Edition, page 422.
15
- 10 -
that Plaintiffs would not be able to comply; reset schedules without agreement to do so with the intent of extorting an extension in which to reply to Plaintiffs’ Motions; made false representation to the Court that he had no idea of Plaintiffs’ transportation difficulties; has failed to acknowledge that Plaintiff Stegeman is disabled with mobility issues, all because Defendants don’t want to address the fact they filed a fraudulent document to prove they had an easement agreement concerning Plaintiffs’ property. Plaintiffs’ Civil and Constitutional Rights of Due Process of Law, Equality, and to be treated with Impartiality have been compromised at the hand of Defendant’s legal counsel due to a desperate attempt to have this case dismissed. Plaintiffs, through no fault of their own, are forced into hand delivering everything they plan to file from now on. They cannot trust that what is mailed to the Clerk will filed and or their “Plaintiffs” copy, which is their only proof that they in fact filed something, will be mailed back to them. Plaintiffs also cannot have courier delivered anything to be filed without having the courier stay while Plaintiffs copy is stamped “Filed” then bring Plaintiffs their copy, which also costs quite a bit more to have done making the action unaffordable. This Court should not and must not condone such behavior. Plaintiffs question whether or not they will continue to be treated with injustice, discrimination and partiality by the Defendant’s legal counsel, the Clerks of this Court and what stance the Judge will take on the matter. By filing this Notice and stating the problems to the Court, Plaintiffs have preserved the issues in case and until such time Plaintiffs must Appeal Judgments of this Honorable Court.
PRAYER
- 11 -
Plaintiffs Pray that this Honorable Court will take Notice of what has been presented to the Court and if the Honorable Judge cannot decide issues set before her with impartiality and fairness that the Honorable Judge will disqualify herself. Plaintiffs Pray that the Court puts and end to Plaintiffs being discriminated against and or treated “differently” than Defendant’s legal counsel. Plaintiffs pray that this Honorable Court find that Defendant’s legal counsel has behaved inappropriately and find him in contempt and or sanction him by striking Defendants’ Verified Answers and Dismissing the Counterclaim against Plaintiffs and whatever other sanctions that this Honorable Judge finds just and suitable for his actions.
Respectfully Submitted, this 28th day of April, 2008
By: _______________________________ JANET D. MCDONALD, Pro Se 821 Sheppard Rd Stone Mountain, GA 30083 (770) 879-8737 By: ______________________________ JAMES B. STEGEMAN, Pro Se 821 Sheppard Rd Stone Mountain, GA 30083 (770) 879-8737
THE SUPERIOR COURT OF DEKALB COUNTY
- 12 -
STATE OF GEORGIA JANET D. MCDONALD, JAMES B. STEGEMAN, PLAINTIFFS V GEORGIA POWER COMPANY, et, al. DEFENDANTS
CIVIL ACTION FILE NO: 07CV11398-6
CERTIFICATE OF SERVICE This is to certify that I have this 28th day of April, 2008 served a true and correct copy of the within and foregoing Plaintiffs’ Statements For The Record And Plaintiffs Request For The Court To Take Judicial Notice upon defendants through their attorney on file by deposition in the United States Mail, adequate postage affixed thereto, as follows: Troutman Sanders, LLP C/o Brian P. Watt 5200 Bank of America Plaza 600 Peachtree Street Atlanta, GA 30308-2216 By: ____________________________ JANET D. MCDONALD, Pro Se 821 Sheppard Rd Stone Mountain, GA 30083 (770) 879-8737 By: _____________________________ JAMES B. STEGEMAN, Pro Se 821 Sheppard Rd Stone Mountain, GA 30083 (770) 879-8737
- 13 -
CIVIL ACTION FILE NO: 07CV11398-6
PLAINTIFFS’ STATEMENTS FOR THE RECORD AND PLAINTIFFS REQUEST FOR THE COURT TO TAKE JUDICIAL NOTICE
COMES NOW, Janet D. McDonald and James B. Stegeman, Plaintiffs and files Plaintiffs’ Statements For the Record and Requests The Court to Take Judicial Notice. 1 Plaintiffs’ bring to the Honorable Court’s attention facts relevant to the Record. I. FACTS PLAINTIFFS’ REQUEST THE COURT TO TAKE NOTICE Plaintiffs first point out that March 28, 2008 Mr. Watt had hand delivered to the Court a letter addressed: “The Honorable Cynthia J. Becker, DeKalb County Superior Court, 556 North McDonough Street – Suite 5240, Decatur, GA 30030” With the salutation: “Dear Judge Becker”. “Exhibit A” Not only is it highly inappropriate it is in violation of Uniform Superior Court Rule 4.1.; Rule 4.1. Prohibition on ex parte communications. Except as authorized by law or by rule, judges shall neither initiate nor consider ex parte communications by interested parties or their attorneys concerning a pending proceeding.
Plaintiffs bring to this Honorable Court’s Attention through “Notice to the Court” instances which cause concern and may be viewed as questionable, and/or inappropriate, and/or unethical, and/or violative of Uniform Superior Court Rules, and/or Georgia Code and/or State of Georgia Bar Rules and/or other Rules and/or other Regulations.
1
and Georgia Code of Judicial Conduct, Canon 3, prohibits ex parte communications "concerning a pending or impending proceeding." “judges must scrupulously avoid ex parte communications whether or not they consider them. Judges should avoid the appearance of impropriety when they carry out their duties. Taylor v. Public Convalescent Svc., 245 Ga. 805, 806 (267 SE2d 242) (1980). See also: Ivey v. IveyS94A0264. (264 Ga. 435) (445 SE2d 258) LAWSKI.LLS (1994) “The Code of Judicial Conduct and the Uniform Superior Court Rules could not be more plain in the condemnation of ex parte communications by judges. "Judges shall not initiate or consider ex parte communications, or consider other communications made to them outside the presence of the parties concerning a pending or impending proceeding," Code of Judicial Conduct, Canon 3 (B) (7), … defined in the canon. Id. at (a-e). See, to the same effect, Uniform Superior Court Rule 4.1 ("[e]xcept as authorized by law or by rule, judges shall neither initiate nor consider ex parte communications by interested parties or their attorneys concerning a pending or impending proceeding").” At this point, Plaintiffs must question this action and the impartiality of the Judge. Further, Plaintiffs have been treated with disparity and subjected to injustices by opposing legal counsel and the Clerks of this Court, which again leads to the question of whether or not the impartiality of the Judge, the Court, and Plaintiffs Rights to equality and due process of law should be questioned. Plaintiffs show this Honorable Court the following facts: A. disabilities: • 1st page ¶2: “Plaintiff Stegeman is 100% Federally disabled and receives Supplemental Security Income of 623.00 monthly.3
2
Plaintiff Stegeman’s Disabilities 2
Plaintiffs’ Verified Complaint stated the following concerning Plaintiff Stegeman’s
Plaintiff Stegeman’s disabilities and illnesses are attached hereto as “Exhibit 1” Plaintiff Stegeman’s SSI has had the yearly increase to $634.00 monthly at present.
3
-2-
• page 17, ¶127: “Further, Plaintiff Stegeman is a Federally disabled individual, a member of a protected class.” • page 17, ¶128: “Plaintiffs informed “Georgia Power” as well as the State Troopers that he is a disabled individual.” 1. The Defendants not once inquired into Plaintiff Stegeman’s disabilities, what he suffers from, the extent of, his limitations, etc. even though the first page, ¶2 of Plaintiffs’ Verified Complaint clearly states that Plaintiff Stegeman is disabled. 2. 3. Plaintiffs informed Defendant’s legal counsel of Plaintiff Stegeman’s health related issues in the first conversation about scheduling depositions. Plaintiff Stegeman is 100% Federally disabled, a Level III patient,4 sees a doctor every thirty (30) days; receives Supplemental Security Income; a Medicaid recipient; he neither owns, nor drives a car;5 experiences high levels of discomfort from sitting in a small car, and/or sitting for long periods of time without being able to get up and move around or lie down; has a hard time riding in any car for long periods of time; when extended walking is involved uses a wheelchair - which he owns; has been permanently excused from Jury Duty; is also computer illiterate 6. B. 1. Plaintiffs’ Pro Se Status
Plaintiffs are acting on their own behalf, not out of desire, but out of necessity, to
protect their Rights to Property and Privacy as guaranteed by The State of Georgia and United States Constitutions. Unable to afford legal counsel, having been turned down by
4
Level III patient = sees a Doctor every thirty (30) days
Due to medications, Plaintiff Stegeman gave up driving a car several years ago for the safety of himself as well as the safety of others.
5
Plaintiff Stegeman has the ability to repair computers, he keeps Plaintiff McDonald’s computer running, but he personally has no use for or desire to use a computer, he cannot and does not use McDonald’s computer.
6
-3-
legal aid and Pro Bono attorneys, coupled with the fact that attorneys refuse to perform on a full contingency basis, Plaintiffs had no alternative. The violations to Plaintiffs, their Rights, property and privacy must stop. In order to continue the violations, Georgia Power resorted to libelous claims to Police Officers and Troopers that Plaintiffs are going “to kill” Georgia Power personnel. 2. Contrary to remarks made by Defendant’s legal counsel that Plaintiffs expect
“preferential treatment”, Plaintiffs have only asked to be treated fairly and equally by opposing counsel, this Court, and the Clerks of this Court. Plaintiffs show the following in support of Pro Se litigants: "Picking v. Pennsylvania Railway, (151 F2d. 240 Third Circuit Court of Appeals . In Picking, the plaintiffs civil rights was 150 pages and described by a federal judge as "inept." Nevertheless, it was held : "where a Plaintiff pleads pro-se in a suit for protection of civil rights, the court should endeavor to construe plaintiffs pleading without regard to technicalities." In Walter Process Equipment v . Food Machine 382 U.S . 172 (1965) it was held that in a "motion to dismiss, the material allegations of the complaint are taken as admitted." "From this vantage point, courts are reluctant to dismiss complaints unless it appears the plaintiff can prove no set of facts in support of his claim which would entitle him to relief' (See Conley vs. Gibson, 355 U .S. (1957); In Puckett v. Cox, it was held that a pro-se complaint requires less stringent reading than one drafted by a lawyer (456 F2d. 233) (1972 Sixth Circuit U.S .C .A.) said Justice Black in Conley v . Gibson, 355 U.S. 41 at 48 1957 "The Federal Rules rejects the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision the merits ." According to rule 8(f) FRCP "all pleadings shall be construed to do substantial justice." The Court also cited Rule 8(f) FRCP, which holds that "all pleadings shall be construed to do substantial justice." "It could also be argued that to dismiss a Civil Rights action or other lawsuit in which a serious factual pattern or allegation of a
-4-
cause of action has been made would itself be violative of procedural due process as it would deprive a pro se litigant of equal protection of the law visa vis a party who is represented by counsel . In a fair system, victory should go to a party who has the better case, not better representation."7 C. 1. Plaintiffs’ Marital Status
Plaintiffs request that the Court take notice of the fact of and expressly told to
Defendant’s legal counsel in telephone conversation that Plaintiffs are neither legally, nor common law married to each other or anyone else; co-own property together where they both live. Plaintiff McDonald is caregiver of Plaintiff Stegeman, does all the driving, computer use, etc. 2. Neither Plaintiff can represent or speak for the other; Plaintiffs are willing to accept Service of only one of each document filed, and will file and serve upon Defendants only one copy of each filing with both Plaintiffs signing each filing; for the sole purpose of ecological and economical conservation, but there is no excuse for Mr. Watt to ignore that there are two separate Plaintiffs to an action. Plaintiffs legally cannot and would not represent for the other, see: Dyer v. Dyer v. Spectrum Engineering, Inc., 245 Ga. App. 30, 245 Ga. App. 30, 537 S.E.2d 175, 537 S.E.2d 175 VERSUSLAW (Ga. App. 07/11/2000): [15]: “Her husband Steven filed a pro se response…, but as a nonattorney he could not represent Mary in this action.” *fn10 [31] “*fn10 See Gamble v. Diamond "D" Auto Sales, 221 Ga. App. 688, 689 (3) (472 SE2d 446) (1996); see generally OCGA § 15-19-51 (a) (1).” 3. Mr. Watt has never requested that both Plaintiffs be present when negotiations are
discussed, or any other matter.8 Plaintiffs had discovered that opposing counsel had a habit of confirming only portions of agreed upon matters, misleading the Plaintiffs and
7
U.S. Law Books : Pro Se Federal Decisions
Plaintiff Stegeman was listening to every call when McDonald was conversing and McDonald was listening when Stegeman was conversing, Mr. Watt, had never been advised of the fact, and never acknowledged the other party.
8
-5-
making statements of flattery for which Plaintiffs had become suspicious of the motive. 4. Opposing counsel, has stated in several documents that he talked with McDonald, rarely mentions anything about Mr. Stegeman. One of the only documents opposing counsel indicates anything about Stegeman was when he stated that “… was in the background hollering”. The facts clearly show that Mr. Watt had been advised of Mr. Stegeman’s health conditions, that Stegeman talks loudly normally. 5. By late February, Mr. Watt had been advised about Plaintiffs’ transportation difficulties. Plaintiff McDonald’s car was barely running; using a gallon of water to travel one to two miles, the passenger window does not roll up, etc. In paragraph 4 referenced phone conversation with Mr. Watt. McDonald was driving the car which was overheating, attempting to get the car safely home while talking on a cell phone with Mr. Watt. 9 who continually attempted to bait Plaintiff McDonald into an argument. Plaintiff Stegeman was passenger in the car, attempting to get McDonald not to continue the debate due to safety issues and the problems with the car and needing to get the car home. There was no conversation about rescheduling depositions. D. Experiences With The Court / Clerks
Plaintiffs have experienced several problems that should be brought to this Court’s attention. Should Plaintiffs ignore situations, they get worse; further upon Appeal, if Plaintiffs have failed to address the issues, the right to do so has been waived. Plaintiffs waive no rights concerning their civil actions and or their Appeals. 1. Plaintiffs phoned Judge Becker’s calendar clerk December 5, 2007, when they had been served with no responsive pleadings by Defendants, the On-Line Judicial system showed nothing filed by Defendants. Inquiry was made about Defendant’s responsive pleadings, Plaintiffs were told nothing had yet been filed. Plaintiffs received the Verified
Plaintiffs had spoken with this Honorable Court’s law Clerk Mr. Hash shortly before McDonald called Mr. Watt to confirm there was no deposition for April 3 rd, the second notice that there would be no deposition; the first being March 19th. Plaintiffs had filed Motion To Stay All Processes.
9
-6-
Answer December 6, 2007. Letter to Plaintiffs “that was filed with the Court today”, when Answers showed up on-line, the date showed December 3, 2007. 2. Plaintiff’s Motion to Strike Defendant’s Verified Answers,10 addressed to: “Calendar Clerk for the Honorable Judge Becker”, delivered to the Court March 8, 2008, delivery confirmed by USPS, held by the Clerk unfiled. March 12, 2008, hand-stamped “Filed” by Linda Carter. 3. 4. Plaintiffs sent with Motion to Strike, their copy and postage prepaid envelope to Motion to Stay and Rule Nisi March 20, 2008
11
mail back to them after being stamped “Filed”, Plaintiffs received empty envelope. hand delivered by Plaintiffs who attempted to have Rule Nisi hearing date set by Honorable Judge Becker’s calendar clerk. Floor receptionist called Clerk, clerk refused to appear, Plaintiffs who were told to leave Rule Nisi, it would be mailed back to them in a couple of days. 5. March 31, 2008
12
opposing counsel Mr. Watt, left a voice mail for Plaintiffs who
didn’t discover the message until the following day. Something about Judge Becker’s Clerk asked him to call about a telephone conference/hearing to be held April 1, 2008 at 9:00 a.m. for a discovery dispute. Plaintiffs were not noticed that there was a discovery dispute, there had been no attempt to conduct a discovery conference 13 with Plaintiffs who knew nothing about it. 6. 7. Plaintiffs have called the calendar clerk more than once, left message to call them April 1, 2008 no call came to Plaintiffs. Plaintiffs tried contacting the calendar back, the Clerk has never returned a call to Plaintiffs on any matter. Clerk for information about the hearing, clerk apparently unavailable, left voice mail
March 4th and 5th Plaintiffs sent FAX to Mr. Watt suggesting to call them about Motion To Strike which Plaintiffs held before mailing late in the day on March 7, 2008, the invitation to confer was ignored. “Exhibit 2”
10 11
Requested their copy of Motion to Strike, noticed it was hand-stamped
Mr. Watt knew full well that Plaintiff Stegeman’s deadline for filing Appeal Brief to U.S. 11 th Circuit Court of Appeals was due the 31st and Plaintiffs would be unavailable all that day.
12
Mr. Watt’s Certification of Compliance is without merit which Plaintiffs will address in their Response to Defendant’s Motion to Compel to be filed the same date as the current filing.
13
-7-
8.
April 2, 2008 Plaintiffs received a call from Mr. Hash, Judge Becker’s law clerk.
He claimed he had no information about a phone “hearing” and apparently did not understand why he called Plaintiffs, who told Mr. Hash they had left a message for calendar clerk. Plaintiffs also discussed the Rule Nisi that was never mailed to them, Mr. Hash found it in the file, stapled to the back of Motion to Strike.14 9. Plaintiffs have found that everything filed for Defendants is filed the same day it is signed and mailed by them. All filings by Plaintiffs are held, unfiled until a later date unless hand-delivered. E. Mr. Watt’s Prejudice/Bias Toward Pro Se and or Disabled Persons 1. Plaintiffs’ first telephone conversation with opposing legal counsel Mr. Watt, he
told them that he “plan to treat you with the same respect that I would another attorney”. Plaintiffs truly do not believe that Mr. Watt treats other attorneys the way he has treated Plaintiffs, i.e.: refusing to honor agreements – especially verbal agreements; making false statements; giving flattery in order to gain trust – so that he can do as he pleases and Plaintiffs will not be prepared for counsel’s antics; twisting telephone conversations so that the confirmation letters omit most of the agreements to be agreed upon confirmation, etc. 2. The Supreme Court of Georgia has held that legal counsel should perform with integrity, fairness, and professionalism even with Pro Se litigants in order to have the Public as a whole continue to believe in our Judicial System and that the Public’s Rights are protected from unscrupulous attorneys. See Green v. Green, (S.E.2d 457), (263 Ga. 437) 5511993. GA.2404 <http://www.versuslaw.com>, (1993):
The Rule Nisi was brought with Plaintiffs Motion to Stay, they were seeking either an expedited hearing or Protective Order so that the action would be stayed until an Order had been given concerning Plaintiffs’ Motion to Strike and Plaintiffs would be protected from Defendants legal counsels misplaced attempts to have this case dismissed for the fictitious claims of refusing to comply with discovery requests that opposing legal counsel continually alleges.
14
-8-
“[10]: Benham, Justice. All the Justices concur, except Sears-Collins, J., who concurs specially, and Fletcher, J., who concurs in the judgment only.” “[16]: 2. In addition to the purely legal question …, the role appellee's counsel played in procuring the judgment must be examined.” “[17]: In recent years, on the federal and state level, courts throughout this country have sought to encourage professionalism among lawyers … years ago this court established the Chief Justice's Commission on Professionalism … to maintain …and establish…, a sense of civility and courtesy among lawyers. … between professionalism and ethics, Chief Justice Clarke has often said that "ethics is that which is required and professionalism is that which is expected."” “[18] On one hand, the practice of law is dependent … on lawyers having respect for each other, honoring their promises, cooperating with others, and according each other a high degree of civility. On the other hand, lay persons sincerely believe that when a justicable issue arises, … they will be accorded their day in court." These expectations on the part of lawyers and lay persons are reasonable and are fully contemplated by our system of jurisprudence. Therefore, when these expectations are not fulfilled, there is understandable discontent with our system of Justice. If the bar is to maintain the respect of the community, lawyers must be willing to act out of a spirit of cooperation and civility and not wholly out of a sense of blind and unbridled advocacy.” “[20] … That spirit of cooperation and civility, with the notions of fundamental fairness that lie at the heart of the principle of due process of law, requires that attorneys, as officers of the court, make a good faith effort to ensure that all parties *fn3 to a controversy have a full and fair opportunity to be heard. *fn4 …” “[21] Given all the circumstances of this case, and especially the lengths to which appellee's counsel went to ensure that this case was tried in the absence of appellant, we hold that the proper exercise of the trial court's discretion established in Spyropoulos, supra, required that the judgment be set aside. The trial court's denial of appellant's motion to set aside was, therefore, an abuse of that discretion.” “[40] … "due process" is "'flexible and calls for such procedural protections as the particular situation demands,'" Mathews v. Eldridge, 424 U.S. 319, 334 (96 S. Ct. 893, 47 L. Ed. 2d 18) (1976), and due regard must be given to the particularities and practicalities of each case and to the effect the different types
-9-
of notice may have on state interests, see Mullane, 339 U.S. at 314-315; Tulsa Professional Collection Svcs. v. Pope, 485 U.S. 478, 489 (108 S. Ct. 1340, 99 L. Ed. 2d 565) (1988). 3. On several occasions, the first time being in February, Plaintiffs approached
Defendant’s legal counsel, Mr. Watt on having a Discovery Conference; a conference on the scope of discovery to be obtained at depositions; Discovery Planning Conference. Mr. Watt has outright refused. Mr. Watt claimed that it would be unethical considering Plaintiffs’ Pro Se status. 4. Defendant’s legal counsel filed Affidavit of Brian P. Watt, Second Affidavit of Brian P. Watt, Motion For Continuance, and Motions to Compel de dolo malo.15 CONCLUSION Defendant’s legal counsel, with knowledge of Uniform Superior Court Rules, State of Georgia Bar Rules, and Judicial Canons had hand delivered a letter directly to the Judge of this Honorable Court. Not to the Clerk as would be permissible, but directly to the Judge. Defendant’s legal counsel, understanding, and not caring that it may be viewed as inappropriate, has communicated with the Calendar Clerk and Law Clerk on issues that have been withheld from Plaintiffs. Further, without holding the mandatory 6.4 Conference with Plaintiffs, Mr. Watt calls Plaintiffs March 31, 2008 (on a day in which he factually knew that Plaintiffs would be unavailable by telephone) to arrange a telephone hearing or conference with the Court on a Motion To Compel filed without Plaintiffs knowledge of a discovery dispute. The message left by Mr. Watt for Plaintiffs was that “the clerk wanted me to call”; the hearing was to be at 9:00 a.m. the following morning. Defendant’s legal counsel has continually lied to Plaintiffs; made requests without giving a date and or time in which they were to reply; set schedules with full knowledge
“de dolo malo (dee doh-loh mal-oh). [Latin] Of or based on fraud.” Black’s Law Dictionary, Seventh Edition, page 422.
15
- 10 -
that Plaintiffs would not be able to comply; reset schedules without agreement to do so with the intent of extorting an extension in which to reply to Plaintiffs’ Motions; made false representation to the Court that he had no idea of Plaintiffs’ transportation difficulties; has failed to acknowledge that Plaintiff Stegeman is disabled with mobility issues, all because Defendants don’t want to address the fact they filed a fraudulent document to prove they had an easement agreement concerning Plaintiffs’ property. Plaintiffs’ Civil and Constitutional Rights of Due Process of Law, Equality, and to be treated with Impartiality have been compromised at the hand of Defendant’s legal counsel due to a desperate attempt to have this case dismissed. Plaintiffs, through no fault of their own, are forced into hand delivering everything they plan to file from now on. They cannot trust that what is mailed to the Clerk will filed and or their “Plaintiffs” copy, which is their only proof that they in fact filed something, will be mailed back to them. Plaintiffs also cannot have courier delivered anything to be filed without having the courier stay while Plaintiffs copy is stamped “Filed” then bring Plaintiffs their copy, which also costs quite a bit more to have done making the action unaffordable. This Court should not and must not condone such behavior. Plaintiffs question whether or not they will continue to be treated with injustice, discrimination and partiality by the Defendant’s legal counsel, the Clerks of this Court and what stance the Judge will take on the matter. By filing this Notice and stating the problems to the Court, Plaintiffs have preserved the issues in case and until such time Plaintiffs must Appeal Judgments of this Honorable Court.
PRAYER
- 11 -
Plaintiffs Pray that this Honorable Court will take Notice of what has been presented to the Court and if the Honorable Judge cannot decide issues set before her with impartiality and fairness that the Honorable Judge will disqualify herself. Plaintiffs Pray that the Court puts and end to Plaintiffs being discriminated against and or treated “differently” than Defendant’s legal counsel. Plaintiffs pray that this Honorable Court find that Defendant’s legal counsel has behaved inappropriately and find him in contempt and or sanction him by striking Defendants’ Verified Answers and Dismissing the Counterclaim against Plaintiffs and whatever other sanctions that this Honorable Judge finds just and suitable for his actions.
Respectfully Submitted, this 28th day of April, 2008
By: _______________________________ JANET D. MCDONALD, Pro Se 821 Sheppard Rd Stone Mountain, GA 30083 (770) 879-8737 By: ______________________________ JAMES B. STEGEMAN, Pro Se 821 Sheppard Rd Stone Mountain, GA 30083 (770) 879-8737
THE SUPERIOR COURT OF DEKALB COUNTY
- 12 -
STATE OF GEORGIA JANET D. MCDONALD, JAMES B. STEGEMAN, PLAINTIFFS V GEORGIA POWER COMPANY, et, al. DEFENDANTS
CIVIL ACTION FILE NO: 07CV11398-6
CERTIFICATE OF SERVICE This is to certify that I have this 28th day of April, 2008 served a true and correct copy of the within and foregoing Plaintiffs’ Statements For The Record And Plaintiffs Request For The Court To Take Judicial Notice upon defendants through their attorney on file by deposition in the United States Mail, adequate postage affixed thereto, as follows: Troutman Sanders, LLP C/o Brian P. Watt 5200 Bank of America Plaza 600 Peachtree Street Atlanta, GA 30308-2216 By: ____________________________ JANET D. MCDONALD, Pro Se 821 Sheppard Rd Stone Mountain, GA 30083 (770) 879-8737 By: _____________________________ JAMES B. STEGEMAN, Pro Se 821 Sheppard Rd Stone Mountain, GA 30083 (770) 879-8737
- 13 -
