IN THE SUPREME COURT OF GEORGIA

IN RE:  J. ALLEN GRIMSLEY                      *

                                                                        *

            v.                                                         *            No. S99Y1154

                                                                        *

JOHN COLE VODICKA, et al.                     *

                                                                        *

                                                                        *

COUNTY OF FULTON

STATE OF GEORGIA

MOTION TO DISMISS

J. ALLEN GRIMSLEY’S MOTION FOR RULE OF CONTEMPT

 Preface

            J. Allen Grimsley’s Motion for Rule of Contempt presents nothing for this Court to decide.  While the motion obviously attempts to have John Cole Vodicka and Tim Mellen held in criminal contempt of this Court, the motion is not supported by a single fact that passes evidentiary muster.

            There is no affidavit or sworn testimony in support of the motion nor is there a record before the Court to support the barebones allegations of J. Allen Grimsley in his Motion for Rule of Contempt.  The deficiencies in the “affidavit” that decided Timothy Sambor v. John P. Kelley, S99A0170, 1999 Ga. LEXIS 365 (May 3, 1999), are pale beside the constitutionally flawed, unsworn statements in the complaint of J. Allen Grimsley against John Cole Vodicka and Tim Mellen.

            To require further response by John Cole Vodicka and Tim Mellen would be the equivalent to litigating about over-the-fence backyard gossip.  Please, make no mistake about this position of counsel for John Cole Vodicka and Tim Mellen.  Often, over-the-fence backyard gossip is true.  Most likely, the “affidavit” in Sambor was true, but we have standards of proof and burdens of proof that have served us well since the beginning of our country.  As true as an accusation may be, without an oath, the accusation is of no value when a litigant attempts to deprive a person of either liberty or financial resources.

Dismissing the Motion of J. Allen Grimsley Based Upon the Fact that He Does Not Support His Complaint with Evidence Brings about a Just Result,

 Even Though This Dismissal May Temporarily Delay an End to State of Georgia Bar Rule 4-221 (d) and Judicial Qualifications Commission Rule 20, Two Dastardly Unconstitutional Abridgments of Free Speech and Right to Seek Redress

The motion of J. Allen Grimsley is Exhibit One to the type of legal incompetence that the J. Allen Grimsley motion accuses the two laypersons, John Cole Vodicka and Tim Mellen, of protesting.  Arm flapping, oral dissertation and unsworn statements are persuasive forms of communication, but they do not qualify as evidence or carry the burden of proof required for lodging charges of contempt of court, much less a conviction of criminal contempt.

            While the J. Allen Grimsley motion raises serious issues that will most likely occur again, this Court is without jurisdiction to hear this matter based upon a vacant record unless the Court chooses to declare the rule unconstitutional under the Court’s administrative powers.

The J. Allen Grimsley Motion and this Motion to Dismiss of John Cole Vodicka and Tim Mellen Should be Warning Enough to the State Bar of Georgia and the Georgia Indigent Defense Council that:

1.        the quality of representation provided by J. Allen Grimsley in court-appointed indigent cases, and, more particularly, the payment for this representation with state and county funds, is going to be terminated through either litigation efforts or redress to government officials,

2.        the State Bar of Georgia Rule 4-221 (d) and Rule 20 of the Judicial Qualifications Commission are not going to silence free political speech, together with the right to seek redress, and that the rules will be eventually challenged in this Court, and, if necessary, in the federal courts if enforcement of the rules is attempted or if government officials and lawyers continue to use these rules to cast aspersion on the free speech of John Cole Vodicka and Tim Mellen.

            The motion of J. Allen Grimsley serves as an important notice to both the State Bar of Georgia and the Judicial Qualifications Commission that our Constitutions never intended to abridge free political speech, especially about the spending of government money, and especially when the money spent is intended to afford a person his or her Sixth Amendment right to counsel.  These two not-well-thought-through rules should be removed to allow persons to petition their government about grievances without fear of incarceration.  While both of these rules present a problem that should be addressed immediately, the J. Allen Grimsley motion is too defective to lodge charges of contempt against John Cole Vodicka and Tim Mellen.  Because of the threats made by the motion, this Court, in using its administrative powers, might have jurisdiction to declare these rules unconstitutional.

If The Allegations In The J. Allen Grimsley Motion Are True, John Cole Vodicka And Tim Mellen Are Barking Up The Right Tree, And These Two Private Parties Need To Chew The Rear-Ends Out Of The Pants Of Several Government Employees Who Are Condemning Their Conduct.

            An example of the problem about which J. Allen Grimsley complains of John Cole Vodicka and Tim Mellen exposing, can be observed in the time records of J. Allen Grimsley obtained by Tim Mellen pursuant to a Freedom of Information Request.  These records, together with the affidavit of Tim Mellen, are Attachment 1 to this motion.

            Also attached to this motion as Attachment 2 is the letter from the State Bar of Georgia informing John Cole Vodicka and Tim Mellen that their complaint will not be pursued.  Under State Bar of Georgia Rule 4-221(d), John Cole Vodicka and Tim Mellen could be subject to contempt now if they complained that they filed a complaint with the State Bar of Georgia to address the conduct of J. Allen Grimsley and the State Bar of Georgia turned its back.

            In a newspaper article in The Albany Herald on May 8, 1999 the following was reported.

On Friday, Vodicka learned that the Georgia Indigent Defense Council had also exonerated Grimsley – but he read it in a newspaper, having never received a response from the Council directly.  He said he was surprised the paper had been given a response before he had.

The contents of the response, however, were no surprise, he said.

‘They, or [sic] the Bar Association for that matter, never interviewed us, nor any of Grimsley’s clients or their families who had witnessed him in court.  It’s not surprising that it turned out this way’, said Vodicka.

‘Mr. Vodicka had us all walking on egg shells,’ said Michael Shapiro, director of the Georgia Indigent Defense Council.  ‘He made it awkward for us because he should not have notified us.  We are not supposed to be aware of a complaint to the State Bar.  He should not have met on the courthouse lawn.’

Asked if Vodicka’s actions were illegal, Shapiro said, ‘It is a violation of the rules that govern grievances against attorneys, and those rules were established by the Supreme Court of Georgia for the purposes of the State Bar.  Is it illegal?  It is conceivably contumacious (willfully disobedient) behavior.  It’s like insulting the court.’

Shapiro said his office completed an investigation of Grimsley, by interviewing lawyers and judges in Sumter County.  Grimsley said he provided a two-page written response.

‘We found that Mr. Grimsley, for the most part, did a good job down there,’ Shapiro said.   He did not explain why the Council had not contacted Vodicka with its findings, but added that he encourages Vodicka to continue his work – within the rules.

            The Americus Times Recorder, on May 6, 1999, also reported comments from Michael Shapiro of the Georgia Indigent Defense Council.  The following are excerpts from this report.

In a phone call Thursday to Michael Shapiro of the Georgia Indigent Defense Council, Shapiro said,  ‘We have done our investigation and concluded Mr. Grimsley appears to be more active and aggressive than other lawyers who practice indigent defense in Sumter County.  We are comfortable with Mr. Grimsley’s actions and believe they are adequate.  It is our job to to [sic] try and cooperate with indigent lawyers.’

He added, ‘I know Mr. Vodicka works hard and I encourage him to continue.  The problem I have with him is his methods of investigation.  He should have left it to the bar.  It was also inappropriate for him to disclose to us that he had sent a grievance to the State Bar.  I commend his zealousness, but question his tactics.’

                      John Cole Vodicka is accustomed to high and inside pitches that graze the head of his personal integrity and strike hard at his constitutionally protected rights of free speech and his right to seek redress from our government. The Judicial Qualifications Commission once threatened to have John Cole Vodicka held in contempt, but never brought a motion with its Rule 20, which is a similar rule to State Bar of Georgia Rule 4-221 (d).  At the time of the Judicial Qualifications Commission’s warning to John Cole Vodicka to be quiet about judicial complaints that he filed, the Americus Times Recorder, on June 2, 1994, reported that Sherie M. Welch, the Clerk of this Court, advised as follows.

     Sherry [sic] Welch, Clerk of the Georgia Supreme Court, said told [sic] the Times-Recorder that the sanctions, if imposed, could range from contempt of court, to perjury, but that the court isn’t limited in the action it could take.

     ‘The court could probably do anything that seemed appropriate,’ Ms. Welch said, ‘In a case like this, contempt would probably be the most likely action, but there’s a possibility that a charge of perjury could be made. I don’t think there is one answer.  There’s no way to tell what the court would do.’

 emphasis supplied.

            In an article by the same newspaper the following day, the reporter, Don Fletcher, apparently paraphrased the quote from his earlier story and reported as follows.

Sherry [sic] Welch, Clerk of Georgia Supreme Court, confirmed Wednesday that public disclosure of the complaint and its components, along with a news release issued by the Prison and Jail Project in conjunction with the filing, were breaches of Rule 20, Georgia Court Rules and Procedures, as they apply to the confidentiality of complaints filed with the Judicial Qualifications Commission.

Ms. Welch said the state’s high court could sanction Vodicka and his group in a variety of ways, including contempt of court charges or, possibly, the filing of perjury charges.

emphasis supplied.

            In the June 2, 1994 article, the Americus-Recorder reported as follows.

A local group which recently filed a formal complaint against Sumter County Chief Magistrate John W. Southwell may have violated confidentiality requirements by releasing a copy of the complaint to the news media.

A secretary at the Judicial Qualifications Commission in Atlanta said Wednesday that the Prison and Jail Project, on whose behalf the complaint was filed, has committed a breach of Rule 20, Georgia Court Rules and Procedures, as it pertains to the confidentiality of proceedings before the commission, and could face sanctions by the Georgia Supreme Court.

             The quotes from all these articles are certainly not included for the accuracy of the information or the accuracy of the reporting, but to demonstrate the detrimental use of this rule in the media by people paid by the government.

If newspapers are going to quote a Clerk of the Georgia Supreme Court as informing the public that persons revealing the content of complaints about judges can be sanctioned “in a variety of ways, including contempt of court charges or, possibly, the filing of perjury charges”, by Rule 4-211 of the State Bar of Georgia and Rule 20 of the Judicial Qualifications Committee, we have rules that are wagging a rabid dog.

If Correct, What do the Sumter County Payment Vouchers of J. Allen Grimsley Show?

            On February 18, 1998, he spent .7 of an hour preparing an “Entry of Appearance”;

            On March 11, 1998, he spent .7 of an hour preparing an “Entry of Appearance”;

            On March 18, 1998, he spent .3 of an hour reading a letter from a client;

            On April 30, 1998, he spent .7 of an hour preparing an “Entry of Appearance” (this Entry of Appearance, as a sample of a pleading that consumed 42 minutes to prepare, is Attachment 3);

            On July 6, 1998, he spent .4 of an hour faxing a “copy of letter & appt. Sheet to DA’s office” (this apparently was the letter that he billed .5 of an hour to write just before the faxing);

On May 14, 1998, he spent .7 of an hour preparing an “Entry of Appearance” (this Entry of Appearance, as another sample of a pleading that consumed 42 minutes to prepare, is Attachment 4);

            On January 6, 1998, he spent .7 of an hour preparing an “Entry of Appearance”;

            On April 13, 1998, he again spent .7 of an hour preparing an “Entry of Appearance”;

            On August 24, 1998, he spent .7 of an hour preparing an “Entry of Appearance”;

            On March 23, 1998, he spent .8 of an hour preparing an “Entry of Appearance” (the records of the Clerk of Superior Court of Sumter County do not contain this pleading);

            On April 3, 1998, he spent .7 of an hour preparing an “Entry of Appearance” (the records of the Clerk of Superior Court of Sumter County do not contain this pleading);

            On May 4, 1998, he spent .4 of an hour faxing an Order to the jail;

            On February 20, 1998 he spent .7 of an hour preparing an “Entry of Appearance”;

            On April 30, 1998 he spent .7 of an hour preparing an “Entry of Appearance”; and,

            On June 9, 1998 he spent .7 of an hour preparing an “Entry of Appearance” (the records of the Clerk of Superior Court of Sumter County do not contain this pleading).

            Even a lawyer making only $35 an hour, an amount less than we pay our air conditioner repairperson, should be capable of preparing an entry of appearance in less than 42 minutes and faxing an order in less than 24 minutes.  An evidentiary hearing will show that neither the State Bar of Georgia nor the Indigent Defense Counsel even looked at any of the documents filed by J. Allen Grimsley, or talked with any of his clients or investigated his billings.  The evidence abounds to show the necessity for free political speech and the right for these private citizens to seek redress.

            There is reason to believe that the documents produced pursuant to a Brady/Kyles motion will produce even greater need for unabridged free speech and right to seek redress.

            Is taking money from the government for work that is not performed any less egregious conduct than some of the other matters that subject lawyers to discipline?

            Can the State Bar of Georgia be trusted to improve the quality of indigent defense?

            Can the Indigent Defense Council be trusted to fairly investigate deficient representation of indigent clients?

            Even if a naïve person can answer, “yes” to each of these questions, the issue of abridgment of speech negates giving this crowd exclusive control.  Indigent persons who are inflicted with incompetent counsel deserve a voice.

J. Allen Grimsley Has It Correct: This Court Needs to Address the Problems that J. Allen Grimsley Discusses in His Motion.  However, J. Allen Grimsley Has It Absolutely Backward As To Whom Should Be Sanctioned.

            J. Allen Grimsley came to this Court without evidence.  Until this moment, he has caused counsel for John Cole Vodicka and Tim Mellen to spend more time dealing with his Motion for Rule of Contempt, which in reality is a letter to Santa Claus, than he billed for representation in any of the attached payment vouchers.  A solution to this letter to Santa Claus motion of J. Allen Grimsley is for the Court to advise J. Allen Grimsley that he should place his payment vouchers under his pillow and await payment from the tooth fairy, because John Cole Vodicka and Tim Mellen plan to expose his incompetent representation. 

Further, John Cole Vodicka and Tim Mellen do not plan to take pot shots and sucker punches from government employees about exercising their right to free speech and their right to seek redress.  The words “perjury” and “contempt of court” are mighty strong hits for persons to take who only seeking to promote dispositional fairness and equality in our criminal justice system. The Constitution of the State of Georgia and the Constitution of the United States stand head and heels above these stifling rules of the Georgia State Bar and Judicial Qualifications Commission that feed the mouths of government employees with such words as “perjury” and “contempt of court”. 

These government employees give nice sound-bites for press quotes, however, they exceed the scope of their government paid jobs when they engage in these personal attacks on the integrity of these dedicated community activists.

Deliver John Cole Vodicka And Tim Mellen From The Briar Patch.  Better Stated, Give The State Bar Of Georgia, The Judicial Qualifications Commission And The Georgia Indigent Defense Council A Graceful Exit. 

J. Allen Grimsley does not deserve to leave this dispute with grace.  His acts in representing indigent clients and obtaining government money for his services deserve exposure to the sunlight of public opinion.   The State Bar of Georgia’s failure to sanction or appropriately investigate this conduct deserves exposure to the sunlight of public opinion.  The Georgia Indigent Defense Council’s acts in defending his conduct deserve exposure to the sunlight of public opinion.  This Court should assist John Cole Vodicka and Tim Mellen in their efforts to expose the low level of indigent representation in southwest Georgia.  Funding for indigent defense should not be a financial recovery act for incompetent lawyers.

Here Is the Problem With Indigent Defense in a Paragraph.

The problem with indigent defense in Georgia is not that the simplistic goal of our system to determine guilt or innocence accurately is not functioning in most cases.  The problem is providing indigent persons with the quality of representation that will ensure dispositional fairness and dispositional equality; this goal fails miserably.  Indigent persons are cheated from receiving dispositional fairness and dispositional equality because of ineffective lawyers who serve up their clients as political fodder.

Counsel for John Cole Vodicka and Tim Mellen requested, by letter to the Clerk of Court, an extension of time until the end of June 15, 1999, to respond with additional motions and a brief addressing the issues in J. Allen Grimsley’s motion.  Counsel will additionally move the Court for an opportunity to present evidence, obtain Brady/Kyles disclosure, and cross-examine witnesses before either this Court or an independent judicial officer not protected by State Bar of Georgia Rule 4-221(d) and Rule 20 of the Judicial Qualifications Committee.

            Wherefore, John Cole Vodicka and Tim Mellen pray that the motion of J. Allen Grimsley be dismissed with prejudice immediately without further burden on the appellees’ pro bono legal resources and for such other and further relief as justice may require.

            This 12^th day of May, 1999.

Respectfully submitted,

Millard Farmer

Georgia Bar No. 255300

P.O. Box 1728

Atlanta, GA  30301-1728

(404) 688-8116

Counsel for John Cole Vodicka and Tim Mellen