IN THE SUPREME COURT OF GEORGIA

IN RE:  J. ALLEN GRIMSLEY                       *

                                                                         *

            v.                                                           *            No. S99Y1154

                                                                         *

JOHN COLE VODICKA,  and.                       *

TIM  MELLEN                                                 *

                                                                          *

RESPONSE TO

J. ALLEN GRIMSLEY’S MOTION FOR RULE OF CONTEMPT

Preface

            John Cole Vodicka and Tim Mellen file this as their response to J. Allen Grimsley’s Motion for Rule of Contempt.  J. Allen Grimsley attempts to have this Court hold John Cole Vodicka and Tim Mellen in criminal contempt and, further, to reimburse him for all costs incurred in bringing the contempt motion.[1]

            The constitutional protections accorded a person accused of criminal conduct apply in this matter.  The United States Supreme Court has spoken to the constitutional standards for contempt proceedings in United Mine Workers v. Bagwell, ___ U.S. ___, 114, 129 L. Ed. 2d 642, 114 S.Ct. 2252 (1994).

Before this matter proceeds, this Court should determine the following.

1.)               Is the Georgia State Bar Rule 4-221 that John Cole Vodicka and Tim Mellen are accused of violating constitutional?

2.)               Does this Court have the jurisdictional, constitutional and statutory authority to adjudicate a person who is not attempting to practice law in contempt court for violating a Georgia State Bar Rule?  And, if so, does this Court have the authority to act as a court of inquiry, or worse, the authority to delegate this power, in a proceeding which accords John Cole Vodicka and Tim Mellen their constitutional rights?

3.)               Does a far reading of the Georgia State Bar Rule prohibit a complaining person from making public the fact that a bar complaint was filed?

4.)               Is there creditable evidence that proves beyond a reasonable doubt that John Cole Vodicka and Tim Mellen violated Georgia State Bar Rule 4-221?

            Previous to this Response of John Cole Vodicka and Tim Mellen, they filed a Motion to Dismiss which is pending before this Court.  This previously filed Motion to Dismiss, together with the attachments to that motion, and the attachments to this Response, are incorporated and made a part of this Response.

The Issues Raised in This Response Are as Follows.

1.          The Motion to Dismiss should be granted for the reasons stated in the dismissal motion and particularly for the reason that the J. Allen Grimsley Motion for Contempt does not have an affidavit in support of the allegations.

2.          The Supreme Court of Georgia is without jurisdiction in this case.

3.          The Supreme Court of Georgia was without authority to enact Georgia State Bar Rule 4-221 as O.C.G.A. §15-19-31 does not authorize the Supreme Court of Georgia to enact rules and regulations over persons who are not attempting to practice law in the State of Georgia and the Supreme Court of Georgia as a branch of the judiciary is not otherwise authorized to enact such a rule and regulation.  In fact, the legislature is constitutionally prohibited from delegating its authority that O.C.G.A. §15-19-31 attempts to delegate to the Supreme Court of Georgia.  Georgia State Bar Rule 4-221, as applies to persons who are not attempting to practice law within the State of Georgia, violates the Georgia Constitution Article I, Section I, Paragraph 3 (Separation of Powers) and Article III Section I (Legislative Powers).

4.          Georgia State Bar Rule 4-221 is an unconstitutional restraint upon politically protected free speech and the right of a citizen to seek redress from the government as protected by the Georgia Constitution Article I, Section I, Paragraph II (equal protection Paragraph V, (free speech) Paragraph IX (redress) and. Paragraph XXVIII (inherent rights hitherto enjoyed) together with the United States Constitution’s First Amendment rights to free speech and to seek redress and Fourteenth Amendment Right to equal protection.

5.          Georgia State Bar Rule 4-221 (3) is so vague that it does not place a person who has filed a complaint with the Bar on notice that he or she is subject to the confidentiality provision, if, in fact, the rule is intended for that use, as J. Allen Grimsley maintains.  This vague provision of Georgia State Bar Rule 4-221 violates the Fourteenth Amendment right of a person to be placed on notice for conduct for which he or she may be held in criminal contempt.

6.          A fair reading of Georgia State Bar Rule 4.221 does not prohibit a complaining person from revealing the content of a complaint, nor does it prohibit a person from revealing the fact that a complaint is filed.

7.          John Cole Vodicka and Tim Mellen sought the right of allocution in this matter (oral argument) and this was denied, with the comment that “Argument is not ordinarily heard in bar disciplinary cases”.  This policy cannot abridge these litigants’ rights to both allocution and to present evidence in their defense, as protected by the Sixth and Fourteenth Amendments to the United States Constitution.

8.          John Cole Vodicka and Tim Mellen are being selectively prosecuted in this matter because of their political views and attempts to correct the system of indigent defense in southwest Georgia.

9.          John Cole Vodicka and Tim Mellen, subject to a disposition of their challenges to the constitutionality of the rule and a determination on their motion to dismiss, stand ready for trial and plead not guilty.  John Cole Vodicka and Tim Mellen request the right to present evidence to this Court.  John Cole Vodicka and Tim Mellen invoke all of their United States and Georgia Constitutional protections.

10.      John Cole Vodicka and Tim Mellen are habitual, politically protected, free-speech offenders.  There is substantial similar circumstance evidence to support the fact that both John Cole Vodicka and Tim Mellen often seek redress from their government.  The Court should resolve the constitutionality of Georgia State Bar Rule 4-221 while these two people are under accusation for these charges by J. Allen Grimsley and are within the custody of this Court.  Due to the fact that J Allen Grimsley is a municipal court judge, this Court should also address this same restriction on speech restricted by the Judicial Qualifications Commission.  Undoubtedly, there will be more charges against these two people for … “CENSORED.”  Further comment is restricted by the Judicial Qualification Commission and this Court, if the Georgia State Bar Rule 4-221 is constitutional.

Factual Background

The Charges by J. Allen Grimsley Against John Cole Vodicka and Tim Mellen

            J. Allen Grimsley charges John Cole Vodicka and Tim Mellen, who he identifies as “Respondents”, as follows.

Respondents are subject to the jurisdiction of this Court by virtue of filing a State Bar grievance on March 18, 1999, against Petitioner which is attached hereto as "Exhibit A." (2)

Respondents held a press conference on March 18, 1999, in front of the Sumter County Courthouse announcing the filing of the grievance and handing out copies of the same to the media in attendance. (3)

This press conference was preceded by a media release which also announced the filing of the complaint and revealed the nature of its contents. Said media release is attached hereto as Exhibit "B." (4)

Respondents also verbally spoke about the filing of the grievance and its contents at the press conference. (5)

Respondents, by their aforesaid actions, caused the filing of the grievance and the nature of its contents to be published by the Americus Times-Recorder newspaper and the Albany Herald newspaper. Copies of the articles in the respective newspapers are attached as Exhibits "C" and "D," and "E," respectively. Respondents, further caused the filing of the grievance and the nature of its contents to be broadcast on television by WFXL in Albany. (6)

Respondents further caused the filing of the grievance and the nature of its contents to be published by Freedomways, a newsletter which is published by the Prison & Jail Project, an “organization” which is operated and controlled by Respondents. A copy of the newsletter is attached hereto as exhibit "F".  (7)

Respondents also disclosed the filing of the grievance and its contents to the Georgia Indigent Defense Council and the Sumter County Indigent Defense Governing Committee. Copies of the letters to the Georgia Indigent Defense Council and the Sumter County Indigent Defense Governing Committee are attached hereto as Exhibits "G" and "H" respectively. (8)

The aforesaid actions of the Respondents were knowingly and willfully done in violation of the confidentiality rules of the State Bar of Georgia which Respondents subjected themselves to by filing, the above-referenced grievance. (9)

            As anyone can tell, this is some serious stuff that J. Allen Grimsley accuses John Cole Vodicka and Tim Mellen of doing.

            Is this conduct contemptuous of the Georgia Supreme Court?

The Complaint of John Cole Vodicka and Tim Mellen to the State Bar of Georgia about J. Allen Grimsley is as follows.

March 18, 1999

State Bar of Georgia

Office of the General Counsel

800 The Hurt Building

50 Hurt Plaza            RE: J. Allen Grims1ey, Bar No. 312406

Atlanta, GA 30303

Dear State Bar of Georgia,

Thirty-six years ago today, March 18, 1963, the United States Supreme Court issued its landmark decision Gideon v. Wainwright, a ruling which required that persons too poor to afford legal counsel in criminal cases be provided with an attorney to represent their interests. The Supreme Court said that criminal defendants who were not represented by a lawyer were denied a fundamental right guaranteed by the 6th Amendment to the U.S. Constitution.

Justice Hugo Black wrote in his opinion, "The Constitution requires us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours."

Unfortunately, when the Supreme Court handed down its Gideon opinion three and one-half decades ago, it did not also set standards for those lawyers who would be appointed to represent indigent criminal defendants. That responsibility has largely been left to national and state bar associations, with some direction coming from lower courts and legislatures.

As a result, many indigent criminal defendants, even when technically represented by a lawyer appointed to them by the court, are in reality not represented at all. Gideon v. Wainwright might as well not even exist. Indeed, in some Georgia judicial circuits, Gideon appears to have never been taken seriously.

Such is the case here in Sumter County, Georgia -- and the Southwest Judicial Circuit -- when criminal defendants in Superior, State or Juvenile Court are unlucky enough to have appointed as their lawyer Mr. J. Allen Grimsley. It is Mr. Grimsley who is the subject of this complaint to the Georgia Bar Association. We are asking that you investigate thoroughly Mr. Grimsley's pitiful record of representation of his indigent clients over the past several years. It is our belief that he has not competently, ethically, or honestly represented those many individuals who he has been appointed to represent in this judicial circuit, specifically here in Sumter County.

The Prison & Jail Project, has, for the past year, conducted its own investigation into J. Allen Grimsley's representation of indigent criminal defendants. We are certain that Mr. Grimsley does not follow the guidelines established by the Georgia Indigent Defense Council which dictate what a lawyer must minimally do to properly represent an indigent client. But moreover, our inquiry also indicates that Mr. Grimlsey may be in violation of several standards the Georgia State Bar Rules and Regulations mandates lawyers must adhere to if they are to remain in good standing with the Bar.

Mr. Grimsley communicates little -- if at all with many of his court-appointed, indigent clients. If the client is in jail awaiting trial, that defendant is likely to see Mr. Grimsley once, for only a few minutes, before the case comes before a judge. In our discussions with Mr. Grimsley's past and present clients, those one-time meetings consisted of little more than an introduction and the comment from Grimsley, "Let me see if I can workout a deal with the district attorney." The next time the jailed clients saw Mr. Grimsley was in the courtroom, and again only to spend a few minutes with their lawyer as he attempted to convince them that pleading guilty was in their best interest.

Similarly, our investigation revealed that court-appointed defendants who were not locked up prior to trial also had a difficult time communicating with Mr. Grimsley. Defendants we interviewed maintained that Grimsley did not usually set up appointments with them, didn't return their phone calls, seldom followed up on leads the defendants gave to him regarding witnesses, alibis, etc. Again, most of these defendants only saw Mr. Grimsley one time before their appointed time in court. In at least one instance, an indigent defendant went eight months without communicating with Mr. Grimsley, this despite the fact that the defendant appeared in court on three separate occasions only to discover that Mr. Grimsley was not present on that day.

Most disturbing is Mr. Grimsley's "representation" of youthful offenders in Sumter County Juvenile Court. We have documented a half-dozen instances where Mr. Grimsley had no face-to-face contact at all with his young, court-appointed clients until they appeared in juvenile court to be adjudicated!

Our investigation revealed that Mr. Grimsley seldom comes to court prepared enough to truly advocate on behalf of his indigent clients. Sometimes he appears in court unable to physically recognize his client sitting in the audience or among prisoners. Several times during the course of the Prison & Jail Project's investigation Mr. Grimsley has failed to show up in court at all, occasionally forcing a judge to hold him in contempt and levy against him a small fine. When he is present, it is obvious to even the casual courtroom observer that Mr. Grimsley has not thoroughly investigated his court-appointed cases and more often than not simply--by his inaction--throws his client to the "mercy" of the court. Seldom does Mr. Grimsley offer sentencing alternatives to the judge, nor is he able to discuss his client's personal history with the court. Many times Mr. Grimsley seems to be prosecuting his client and working against his client's best interests when he openly ridicules or belittles the individual he has been appointed to represent! It is obvious that Mr. Grimsley is mostly contemptuous of his impoverished clients and their predicaments.

Our investigation reveals that Mr. Grimsley apparently does not follow his indigent clients' expressed directives to represent them fully and to the best of his ability. In addition to his failing to properly investigate the cases and interview witnesses, examine evidence, etc., Mr. Grimsley files few motions with the court which could possibly benefit his clients' defense or gain their freedom... We have interviewed a number of Mr. Grimsley's former clients who insist that Grimsley consistently ignored their requests for pre-trial legal assistance and instead continued to push them to plead guilty. Defendants represented by Mr. Grimsley insist that if you are not willing to plead guilty Mr. Grimsley “shuts down” and exhibits an unwillingness to pursue the case further.

Because J. Allen Grimsley is appointed by the Sumter County Indigent Defense Panel to represent indigent defendants, he is required to submit expense vouchers which detail the amount of time he's spent on each appointed case. We have examined a number of these expense vouchers Mr. Grimsley has submitted to the Indigent Defense Panel clerk, and are not convinced that these vouchers are always accurate. In ten months' time last year, Mr. Grimsley billed Sumter County for more than $20,000 worth of indigent defense legal work. Our examination of the vouchers Mr. Grimsley submitted during this time period indicates that he has, in several instances, possibly billed the county twice for the same case; billed twice for the time involved in making one telephone call; billed the County for representation when the client was in fact being represented by another lawyer; and several other discrepancies. It appears that Mr. Grimsley's vouchers have never been seriously examined or questioned by those responsible for approving the amount of money he claims he's owed by Sumter County.

The Prison & Jail Project's investigation into J. Allen Grimsley's behavior as an indigent defender in Sumter County certainly raises some troubling questions about his competency as a lawyer and whether or not he provides his appointed clients with effective assistance. Because we understand that the State Bar of Georgia does not investigate "ineffective assistance" claims against lawyers, we are today simultaneously filing a complaint against Mr. Grimsley with the Georgia Indigent Defense Council, which monitors court appointed attorneys and counties' indigent defense systems.

But we feel strongly that our investigation into Mr. Grimsley's conduct with his court-appointed clients also begs for a State Bar investigation into whether this lawyer has violated specific standards of professional responsibility which would then require the Georgia State Bar to commence disciplinary proceedings against Mr. Grimsley. Specifically, we believe Mr. Grimsley has possibly violated several of the State Bar of Georgia's "Discipline and Standards of Conduct Rule 4-102(d)": Standard 4, which states that a lawyer "shall not engage in illegal professional conduct involving dishonesty, fraud, deceit, or willful misrepresentation"; Standard 31, which states that "a lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee"; Standard 33, which states that "a lawyer shall not enter into a business transaction with a client if they have differing interests therein and if the client expects the lawyer to exercise his professional judgment therein for the protection of the client.. "; Standard 43, which states that "a lawyer shall not handle a matter which he knows or should know that he is clearly incompetent to handle without associating with him a lawyer whom he reasonably believes to be competent to handle it"; Standard 44, which states "a lawyer shall not without just cause to the detriment of his client in effect willfully abandon or willfully disregard a legal matter entrusted to him"; Standard 50, which states "in presenting a matter to a court ... a lawyer shall not engage in undignified, discourteous or disruptive conduct which- is degrading to the court..."; and Standard 56, which states that "a lawyer shall not suppress any evidence that he or his client has a legal obligation to reveal or produce".

It is intolerable, we think, in a state which proclaims equal justice under the law as one of its ideals, that anyone should be handicapped because they are poor and wind up being defended by a lawyer who has no intent of representing his indigent clients as is required by the U.S. and Georgia constitutions. We therefore urge the Georgia State Bar to investigate J. Allen Grimsley's behavior and to take the appropriate action to ensure that Mr. Grimsley is held accountable for what we feel are violations of the Bar's "Rules of Professional Conduct." Not to investigate Mr. Grimsley's particularly pathetic brand of indigent defense lawyering would send the disturbing message that Gideon no longer stands for the great principle that the poor are entitled to the same type of justice as those who have money and are able to hire a lawyer.

The Prison & Jail Project believes that every criminal defense lawyer, whether he or she is making $800 an hour or $80 an hour for their work, whether they are representing a corporate boss or a drug-addicted check forger, has a moral and ethical responsibility to represent their client proudly, without resentment at an unfair burden, sure of the support needed to make an adequate defense.

Attorney at law J. Allen Grimsley does not meet those or many other standards as an indigent defender.

Thank you very much for your attention to our request.

Sincerely,

    S/                                                S/

Tim Mellen            John Cole Vodicka

The Affidavits of Tim Mellen and John Cole Vodicka are Attachments 1 and 2 to this Response and are as follows.

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

AFFIDAVIT OF TIM MELLEN

Before me, the undersigned authority, personally appeared Tim Mellen, who after first being duly sworn, deposes and says as follows.

2.                  I am over the age of eighteen and competent to give this affidavit.

3.                  I am not a member of any bar association.

4.                  I have never been licensed to practice law.

5.                  I have never attempted to practice law without a license.

6.                  On or about December 10, 1998, I made a Freedom of Information request to the County Commissioners of Sumter County for records reflecting requests by J. Allen Grimsley for payment of legal services. 

7.                  I reviewed the records which I received pursuant to this Freedom of Information Act.

8.                  My review of these records, dating from December 31, 1997 through October 16, 1998, revealed that during this period, J. Allen Grimsley billed Sumter County approximately $28,000.00 for his indigent defense work, and that he received the amount which he had billed.

9.                  After reviewing the records received as a result of my Freedom of Information Act request, I obtained records from the Clerk of Superior Court of Sumter County, which represent a sampling of the work for which J. Allen Grimsley billed Sumter County.

10.              These documents, which are true and accurate copies of the originals contained in the records of the Clerk of Superior Court of Sumter County, are attached to the Response To J. Allen Grimsley’s Motion For Rule Of Contempt.

11.              These documents are listed below, showing a description of the documents, the defendant’s name, and date prepared by J. Allen Grimsley, according to his billing vouchers.   The time indication for each document is the time for which J. Allen Grimsley billed, and was paid by, Sumter County for each document.

a.                    Discovery motions, Curtis Adams, January 6, 1998, 1.7 hours;

b.                  Motion for Reduction of Bond, Curtis Adams, January 1, 1998, 1.0 hour;

c.                   Notice of Entry of Appearance of Counsel, Curtis Adams, January 6, 1998, 0.7 hour;

d.                  Discovery motions, Marjorie A. Huddleston, July 7, 1998, 1.6 hours;

e.                   Notice of Entry of Appearance of Counsel, Marjorie A. Huddleston, February 18, 1998, 0.7 hour;

f.                    Notice of Entry of Appearance of Counsel, Marjorie A. Huddleston, March 11, 1998, 0.7 hour;

g.                   Notice of Entry of Appearance of Counsel, Emanuel Wilborn, April 30, 1998, 0.7 hour;

h.                   Notice of Entry of Appearance of Counsel, Shelia Adkins, August 24, 1998, 0.7 hour;

i.                     Notice of Entry of Appearance of Counsel, Kenneth Holton, May 14, 1998, 0.7 hour;

j.                    Motion for Reduction of Bond, Latacia Banks, April 17, 1998, 1.7 hours;

k.                  Notice of Entry of Appearance of Counsel, Lakecia Banks, April 13, 1998, 0.7 hour.

12.              I selected J. Allen Grimsley’s records to review because of the number of complaints I received from his former and present indigent clients and because of my personal observations in the courtroom of his representation of indigent clients.

13.              After filing a complaint with the State Bar of Georgia on March 18, 1999, to address the conduct of J. Allen Grimsley, I was never contacted by anyone with the State Bar or any other investigative authority concerning my complaint until I received a letter dated March 31, 1999 from Jacalyn Scott, of the State Bar of Georgia, informing me that the complaint I had filed had been dismissed.

14.              On March 18, 1999, I wrote Michael Shapiro, Director of the Georgia Indigent Defense Council (“G.I.D.C.”), asking that he authorize a G.I.D.C. investigation into J. Allen Grimsley’s indigent defense practices.  

15.              I never received a response to my letter of March 18, 1999, from Michael Shapiro, nor was I ever made aware of what he or the G.I.D.C. would do in response to my complaint against J. Allen Grimsley.  The only information I received concerning my March 18, 1999 complaint to Michael Shapiro was what I read in the May 8, 1999 edition of The Albany Herald newspaper, where Michael Shapiro was quoted as saying that his office “completed an investigation of Grimsley, by interviewing lawyers and judges in Sumter County.”

16.              After J. Allen Grimsley filed his Motion for Rule of Contempt in the Georgia Supreme Court, I authorized my attorney, Millard Farmer, to contact J. Allen Grimsley to see if he would dismiss his motion.  Millard Farmer informed me that he did call J. Allen Grimsley, and that J. Allen Grimsley told him that he would not dismiss his motion.

17.              After J. Allen Grimsley filed his Motion for Rule of Contempt in the Georgia Supreme Court, I authorized my attorney, Millard Farmer, to contact counsel for the State Bar of Georgia, William P. Smith, III, to see if the State Bar would look into the constitutionality of State Bar of Georgia Rule 4-221.  Millard Farmer informed me that he had spoken with William P. Smith, III, in this regard and that William P. Smith, III said that he doubted there would be any effort made to change this Bar rule.

18.              In addition to representing indigent persons, J. Allen Grimsley is also a municipal court judge for the City of Ellaville, Georgia.

19.              There is a present need for the Judicial Qualifications Commission to review information concerning J. Allen Grimsley’s conduct, and a need for this information about a complaint to be brought to the media’s attention.

20.              The need to bring the media’s attention to both the Judicial Qualifications Commission and the State Bar of Georgia is because these two entities do not adequately address lawyer and judge problems as they affect the rights of indigent persons.  It is also important to publicize these complaints in order that other persons will come forward with both information and complaints.

21.              In the May 17, 1999 edition of The Albany Herald, reporter Sissy Bowen wrote, “[Grimsley] said he filed the motion because he wanted to stop Vodicka from publicly complaining about lawyers.  ‘I didn’t want him to keep doing this to people,’ Grimsley said. …”

22.              The brochure entitled, “Information About Grievance Procedures and Discipline of Lawyers” which is incorporated as a part of the Response to J. Allen Grimsley’s Motion for Rule of Contempt, is a true and accurate copy of what I received from the State Bar of Georgia before I initiated my March 18, 1999 complaint against attorney J. Allen Grimsley.  I received no notification from the State Bar of Georgia about the “confidentiality” requirements.

S/

TIM MELLEN

Sworn to and subscribed to before me

This 5^th day of June, 1999.

S/

Notary Public, DeKalb County

State Of Georgia

*  *  *

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

AFFIDAVIT OF JOHN COLE VODICKA

Before me, the undersigned authority, personally appeared John Cole Vodicka, who after first being duly sworn, deposes and says as follows.

            1.            I am over the age of eighteen and competent to give this affidavit.

23.              I am not a member of any bar association.

24.              I have never been licensed to practice law.

25.              I have never attempted to practice law without a license.

26.              After filing a complaint with the State Bar of Georgia on March 18, 1999, to address the conduct of J. Allen Grimsley, I was never contacted by anyone with the State Bar or any other investigative authority concerning my complaint until I received a letter dated March 31, 1999 from Jacalyn Scott, of the State Bar of Georgia, informing me that the complaint I had filed had been dismissed.

27.              On March 18, 1999, I wrote Michael Shapiro, Director of the Georgia Indigent Defense Council (“G.I.D.C.”), asking that he authorize a G.I.D.C. investigation into J. Allen Grimsley’s indigent defense practices.  

28.              I never received a response to my letter of March 18, 1999, from Michael Shapiro, nor was I ever made aware of what he or the G.I.D.C. would do in response to my complaint against J. Allen Grimsley.  The only information I received concerning my March 18, 1999 complaint to Michael Shapiro was what I read in the May 8, 1999 edition of The Albany Herald newspaper, where Michael Shapiro was quoted as saying that his office “completed an investigation of Grimsley, by interviewing lawyers and judges in Sumter County.”

29.              I selected J. Allen Grimsley’s records to review because of the number of complaints I received from his former and present indigent clients and because of my personal observations in the courtroom of his representation of indigent clients.

30.              After J. Allen Grimsley filed his Motion for Rule of Contempt in the Georgia Supreme Court, I authorized my attorney, Millard Farmer, to contact J. Allen Grimsley to see if he would dismiss his motion.  Millard Farmer informed me that he did call J. Allen Grimsley, and that J. Allen Grimsley told him that he would not dismiss his motion.

31.              After J. Allen Grimsley filed his Motion for Rule of Contempt in the Georgia Supreme Court, I authorized my attorney, Millard Farmer, to contact counsel for the State Bar of Georgia, William P. Smith, III, to see if the State Bar would look into the constitutionality of State Bar of Georgia Rule 4-221.  Millard Farmer informed me that he had spoken with William P. Smith, III, in this regard and that William P. Smith, III said that he doubted there would be any effort made to change this Bar rule.

32.              In May, 1994, I initiated a complaint with the Judicial Qualifications Commission of Georgia asking that an investigation be conducted into the racist and illegal behavior of Sumter County Magistrate Judge J. W. Southwell.  I announced the filing and details of the complaint to the media.

33.              Subsequently, during the course of the Judicial Qualifications Commission’s investigation, I was repeatedly warned that by speaking to the media about the complaint, I was in violation of Rule 20, Georgia Court Rules and Procedures, and could be held in contempt of the Georgia Supreme Court or that perjury charges could be filed against me.

34.              I continued to speak publicly concerning the complaint against J. W. Southwell, and the investigation into J. W. Southwell’s behavior.  J. W. Southwell resigned his judgeship before the Judicial Qualifications Commission’s investigation was completed.

35.              In addition to representing indigent persons, J. Allen Grimsley is also a municipal court judge for the City of Ellaville, Georgia.

36.              There is a present need for the Judicial Qualifications Commission to review information concerning J. Allen Grimsley’s conduct, and a need for this information about a complaint to be brought to the media’s attention.

37.              The need to bring the media’s attention to both the Judicial Qualifications Commission and the State Bar of Georgia is because these two entities do not adequately address lawyer and judge problems as they affect the rights of indigent persons.  It is also important to publicize these complaints in order that other persons will come forward with both information and complaints.

38.              In my work with the Prison & Jail Project during the last seven years, I have often found it necessary – indeed, essential – to notify the media when I am challenging the behavior of public officials and others involved with the criminal justice system.

39.              In seven years, I have frequently encouraged the media to assist me in making the public aware of the misbehavior of certain sheriffs, police chiefs, wardens, jailers, prosecutors, judges, other law enforcement officials and others in government.

40.              I believe that media exposure and public scrutiny into official wrongdoing is a vital component in my work to affect necessary changes in addressing inequities within the criminal justice system.

41.              In the May 17, 1999 edition of The Albany Herald, reporter Sissy Bowen wrote, “[Grimsley] said he filed the motion because he wanted to stop Vodicka from publicly complaining about lawyers.  ‘I didn’t want him to keep doing this to people,’ Grimsley said. …”

42.              The brochure entitled, “Information About Grievance Procedures and Discipline of Lawyers” which is incorporated as a part of the Response to J. Allen Grimsley’s Motion for Rule of Contempt, is a true and accurate copy of what I received from the State Bar of Georgia before I initiated my March 18, 1999 complaint against attorney J. Allen Grimsley.  I received no notification from the State Bar of Georgia about the “confidentiality” requirements.

S/

JOHN COLE VODICKA

Sworn to and subscribed to before me

This 5^th day of June, 1999.

S/

Notary Public, DeKalb County

State Of Georgia

Is there a Sampling of the Available Documentary Evidence that Supports the Allegations of John Cole Vodicka and Tim Mellen about J. Allen Grimsley?

            Yes.  Attached to this Response as Attachment 4 are sample pleadings which J. Allen Grimsley prepared in several of his indigent cases in Sumter County.  As will be readily noted, a standard, one-sentence Notice of Entry of Appearance of Counsel, appears in numerous cases.  For this document, in which the only thing that changes from case to case is the style of the case, J. Allen Grimsley billed Sumter County forty-two minutes to prepare in each instance.  Frequently filed form discovery motions, again, in which the only thing which changes from case to case is the style of case, are charged to Sumter County at the approximate rate of one hour and forty-two minutes to prepare each time.  Observe these motions and determine if this lawyer is either padding his bill or incompetent to practice law.  If the time records of J. Allen Grimsley are believable, this response would have taken a year to prepare.  A sampling of the time records supporting the inflated billing charges  of J. Allen Grimsley are attached to the John Cole Vodicka’s and Tim Mellen’s Motion to Dismiss.

            From December 31, 1997 to October 16, 1998, J. Allen Grimsley charged Sumter County over twenty-eight thousand dollars ($28,000.00), for a dog-and-pony show that deprived numerous indigent defendants of an opportunity to present a defense that would have provided them an opportunity for dispositional fairness and dispositional quality.  As bad as J. Allen Grimsley was in his performance on behalf of indigent persons in Sumter County, the State Bar of Georgia’s and the Georgia Indigent Defense Council’s investigations of the charges brought by John Cole Vodicka and Tim Mellen, were worse.

It is apparent that J. Allen Grimsley charges Sumter County for a seven-course meal, but serves up a very thin bowl of soup, on which his indigent clients and justice had to choke.

            If the news reports are accurate, one of the saddest things about J. Allen Grimsley’s performance is the spin that the Georgia Indigent Defense Council attempted to place upon it.

            The Americus Times Recorder, on May 6, 1999, 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.’

(emphasis supplied).

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

‘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.

Argument and Citation of Authority in Support of the Each Issue in this Response

            A General Statement about the Law of Contempt and Selective Prosecution

Summary adjudications of contempt are used to maintain order in the courtroom "in the face of an actual obstruction of justice," where summary disposition is needed to ". . . preserve order and enable the court to proceed with its business."  United Mine Workers, 114 S.Ct. at 2560 (emphasis added).  "If a court delays punishing a direct contempt until the completion of trial, for example, due process requires that the contemnor's rights to notice and a hearing be respected."  Id.  "Summary adjudication of indirect contempts is prohibited . . ."  Id.

"Criminal contempt is a crime in the ordinary sense [cite omitted] and criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings."  United Mine Workers, 114 S.Ct. at 2556.  These protections include the rights to notice of charges, summary process, to present a defense, and to the proof of guilt beyond a reasonable doubt standard.  Id. at 2557.

The Supreme Court has not defined a "serious criminal sanction" which triggers the constitutional right to a jury trial when it involves a punishment for contempt other than incarceration.  United Mine Workers, 114 S.Ct. at 2562, n.5.  However, fine and imprisonment together with the absolute termination of a person’s right to politically free speech and the right to seek redress from their government should certainly qualify as a "serious criminal sanction."

Yick Wo v. Hopkins

A careful examination of the facts contained in J. Allen Grimsley attempt to charge John Cole Vodicka and Tim Mellen with contempt could suggest that this is a selective use of this Court's power of contempt.  A constitutional basis for this type of analysis has been known since Yick Wo v. Hopkins, 118 U.S. 356 (1886).

Issue I

The Motion to Dismiss should be granted for the reasons stated in the dismissal motion, and, particularly, for the reason that the J. Allen Grimsley Motion for Contempt does not have an affidavit in support of his allegations.

            The Motion to Dismiss is incorporated and made a part of this response.  To briefly summarize the issues in that motion the following is repeated here.

            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), 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.

Issue Two

The Supreme Court of Georgia is without jurisdiction in this case.

            There are many complex issues in this case.  Quite frankly, these issues are very interesting as a matter of constitutional law.  All issues are secondary to this jurisdictional issue because the Supreme Court of Georgia has no constitutional authority to adjudicate a layperson, who is not attempting to practice law, in contempt of court for violating a Georgia State Bar Rule.

            The Supreme Court of Georgia receives its power from the Constitution of Georgia.  The legislature receives it power from the Constitution of Georgia.  The legislature is generally constitutionally restricted from delegating its power to legislate to the judicial branch.

            The legislature, acting under the authority of the Constitution of Georgia, has delineated the primary scope of authority of the Supreme Court of Georgia.  Naturally, these legislatively delineated powers do not restrict the inherent powers of this Court derived from the Constitution.  This delineation of powers by the legislature was accomplished by the following statute.

15-2-8. Powers of court generally.

The Supreme Court has authority:

(1) To exercise appellate jurisdiction, and in no appellate case to hear facts or examine witnesses;

(2) To hear and determine all cases, civil and criminal, that may come before it; to grant judgments of affirmance or reversal, or any other order, direction, or decree required therein; and, if necessary, to make a final disposition of a case in the manner prescribed elsewhere in this Code;

(3) To grant any writ necessary to carry out any purpose of its organization or to compel any inferior tribunal or officers thereof to obey its order;

(4) To appoint its own officers and to commission any person to execute any specific order it may make;

(5) To establish, amend, and alter its own rules of practice and to regulate the admission of attorneys to the practice of law; provided, however, that in regulating the admission of attorneys to the practice of law, the Supreme Court shall require each applicant for admission to the practice of law to be fingerprinted to determine whether the applicant has a record of criminal convictions in this state or other states. The Georgia Crime Information Center is for this purpose authorized to release to the court and its administrative arms any requested records relating to applicants. The information obtained as a result of the fingerprinting of an applicant shall be limited to the official use of the court and its administrative arms in determining whether an applicant possesses the fitness to be admitted to the practice of law in this state;

(6) To punish for contempt by the infliction of a fine as high as $500.00 or imprisonment not exceeding ten days, or both; and

(7) To exercise such other powers, not contrary to the Constitution of this state, as given to it by law. This paragraph shall not be interpreted to abrogate the inherent power of the court.

            Neither in the Constitution of Georgia, in this statute, nor in the inherent powers of the Court is there a grant of jurisdiction to conduct a court of inquiry in a contempt matter for the conduct of a layperson that does not involve a matter otherwise before the Court.  The framers of the Georgia Constitution never intended to give the Supreme Court of Georgia this jurisdiction.

Issue Three

The Supreme Court of Georgia was without authority to enact Georgia State Bar Rule 4-221, as O.C.G.A. §15-19-31 does not authorize the Supreme Court of Georgia the power to enact rules and regulations over persons who are not attempting to practice law in the State of Georgia, and the Supreme Court of Georgia, as a branch of the judiciary, is not otherwise authorized to enact such a rule and regulation.  In fact, the legislature is constitutionally prohibited from delegating the authority that it attempted to delegate to the Supreme Court of Georgia in O.C.G.A. §15-19-31.  The Georgia State Bar Rule 4-221 as applies to persons who are not attempting to practice law within the State of Georgia violates the Georgia Constitution Article I, Section I, Paragraph 3 (Separation of Powers) and Article III Section I (Legislative Powers).

            The Georgia Constitution restricts the Supreme Court of Georgia and, certainly, the State Bar of Georgia, from being a legislative body.  Restricted by the boundaries placed upon its authority, the State Bar of Georgia cannot regulate the conduct of persons who are not attempting to practice law.  For anyone to imagine that the legislature of Georgia gave the State Bar of Georgia the power to control free speech and the right of individuals to seek redress from their government would be to ignore the constitutional foundation of our government.

            In Phillips, et al. v. City of Atlanta, et al.,  210 Ga. 72,  77 S.E.2d 723 (1953) Justice Duckworth, writing for this Court held as follows.

.  .  . "The legislative power of the State shall be vested in a General Assembly which shall consist of a Senate and House of Representatives." Code (Ann.), § 2-1301. This court has repeatedly held that the quoted clause of the Constitution renders void any attempt to delegate legislative powers. Georgia R. v. Smith, 70 Ga. 694; Southern Ry. Co. v. Melton, 133 Ga. 277 (65 S. E. 665); Early County v. Baker County, 137 Ga. 126 (72 S. E. 905); Richter v. Chatham County, 146 Ga. 218 (91 S. E. 35); Moseley v. Garrett, 182 Ga. 810 (187 S. E. 20); Long v. State, 202 Ga. 235 (42 S. E. 2d 729). It was pointed out in the case last cited that this court has held two types of legislation not repugnant to the Constitution: the first of such types being in cases where, after a legislative enactment has plainly set forth the purpose of the legislation and marked its limits, it then provided that designated administrative officers should have power to promulgate rules within the scope of the legislation, designed to fully administer and give effect to that law; and second, legislation to which a referendum is attached which provided that it would become a law only after having received a favorable vote of the people to be affected.

Even if the legislature could delegate some of its legislative authority to the Supreme Court and State Bar of Georgia, it has not delegated the authority to legislate regarding persons who are not attempting to practice law.  This issue, and this case, is almost that simple.

            The legislature maintains that it has delegated its authority to legislate rules relating to the State Bar of Georgia, and, thereby, the legislature has empowered the Supreme Court of Georgia with the authority to enact the following very restrictive type of rules relating to the practice of law “to define the rights, duties, and obligations of the members therein, .  .  . and otherwise to regulate and govern the practice of law in this state . . .”.  This power to enact rules does not include the power to enact rules that control the conduct of persons who are not attempting to practice law.  John Cole Vodicka and Tim Mellen are not lawyers and are not attempting to practice law.  The following is this O.C.G.A. § 15-19-31 statute.

15-19-31. Adoption of rules for organization and government of State Bar.

The Supreme Court shall have the authority by appropriate orders, upon recommendation made by the State Bar of Georgia, to adopt rules and regulations for the organization and government of the unified state bar and to define the rights, duties, and obligations of the members therein, including the payment of a reasonable license fee, and otherwise to regulate and govern the practice of law in this state, to the end that the unified state bar shall promote the best interest of the public by maintaining high standards of conduct in the legal profession and by aiding in the efficient administration of justice.

 (Ga. L. 1963, p. 70, § 2.)

            This statute is very restrictive in the authority that it gives the Georgia Supreme Court.  The framers of the Georgia Constitution never intended for the Georgia Supreme Court to have the authority to legislate with regard to the conduct of layperson not appearing before the Court.

Issue Four

Georgia State Bar Rule 4-221 is an unconstitutional restraint upon politically protected free speech and the right of a citizen to seek redress from the government as protected by the Georgia Constitution Article I, Section I, Paragraph II (equal protection Paragraph V, (free speech) Paragraph IX (redress) and. Paragraph XXVIII (inherent rights hitherto enjoyed), together with the United States Constitution First Amendment Rights to Free Speech and Redress and Fourteenth Amendment Right to Equal Protection.

            In Statesboro Publishing Company, Inc. v. City of Sylvania, 1999 Ga. Lexis 421, this Court stuck a stob through the hand of all persons who have an inkling of an idea that free speech is going to be choked down in this State.

            In that case, the Court reminded all as follows.

2. The Georgia Constitution provides that "no law shall be passed to curtail or restrain the freedom of speech or of the press." (n12 omitted) Our state constitution provides even broader protection of speech than the first amendment.

            Judge Marcus of the United States Court of Appeals for the Eleventh Circuit, when he was District Judge on the United States District Court for the Southern District of Florida, struck down as unconstitutional the Florida State Bar Rule that accomplishes the same type of free speech restrictions as J. Allen Grimsley interprets the Georgia State Bar Rule restricts.  Judge Marcus wrote Respondents’ First Amendment legal argument in John Doe v. the Supreme Court of Florida, 734 F.Supp. 981 (S.D.Fla. 1990).  If J. Allen Grimsley interprets the Georgia State Bar Rule correctly, Georgia, like Florida once did, prohibits any comment ever about a Bar Complaint that is unsuccessful at the first level.

            Judge Marcus wrote as follows.

The constitutional protections of free speech and press were fashioned to assure the unfettered interchange of ideas for bringing about political and social changes desired by the people. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). "All ideas having even the slightest redeeming social importance -- unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion" -- fall within the full protection of the First Amendment. Roth v. United States, 354 U.S. 476, 484,  [**6]  77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957). Although freedom of speech is not absolute, legislation that aims at penalizing the publication of truthful information can seldom satisfy constitutional standards, Smith v. Butterworth, 866 F.2d 1318, 1320 (11th Cir. 1989), cert. granted, 493 U.S. 807, 110 S. Ct. 46, 107 L. Ed. 2d 16 (1989), and is generally presumed unconstitutional. Additionally, legislation which acts as a prior restraint on expression must be evaluated with a particularly heavy presumption of unconstitutionality. See Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S. Ct. 1575, 29 L. Ed. 2d 1 (1971). To sustain the validity of a regulation that penalizes the publication of truthful information -- whether in the form of a prior restraint or a penal sanction imposed to prohibit or punish speech -- the state must establish sufficiently compelling interests. Cate v. Oldham, 707 F.2d 1176, 1186 (11th Cir. 1983). And the burden squarely rests with the government to show the existence of such compelling interests. First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 786, 98 S. Ct. 1407, 55 L. Ed. 2d 707 (1978). Moreover, even where a governmental  [**7]  entity can establish that a challenged regulation's purpose is legitimate and substantial, the state must also show that that purpose cannot be achieved by means more narrowly tailored to accomplish the ends. Shelton v. Tucker, 364 U.S. 479, 488, 81 S. Ct. 247, 5 L. Ed. 2d 231 (1960); see also Smith v. Butterworth, supra at 1320.

While the Supreme Court has long held that regulations enacted for the purpose of restraining speech on the basis of content are presumptively violative of the First Amendment, Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46-47, 106 S. Ct. 925, 89 L. Ed. 2d 29 (1986), content-neutral time, place, and manner restrictions may be valid provided that they are justified without reference to the content of the regulated speech, are narrowly tailored to serve a compelling governmental interest, and leave open ample alternative channels for communication of the information. See, e.g., Renton, supra at 47; Clark v. Community for Creative Nonviolence, 468 U.S. 288, 293, 104 S. Ct. 3065, 82 L. Ed. 2d 221 (1984); Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S. Ct. 2440, 49 L. Ed. 2d 310 (1976).

In the instant case, Plaintiff argues that Rule 3-7.1  [**8]  places an absolute and unjustifiable burden on free speech. On the other hand, Defendants contend that Rule 3-7.1's confidentiality provision constitutes a valid time, place, and manner restriction. Moreover, Defendants have offered four interests which they claim are sufficiently compelling to justify an admittedly substantial infringement on free speech.

At the outset, Defendants cite Renton and Clark, supra, to support their contention that the subject confidentiality provision amounts to no more than a valid time, place, and manner restriction. We disagree. Both Renton and Clark involved regulations justified by compelling state interests that were found to be content-neutral. In Renton, a challenged city ordinance prohibiting adult motion picture theatres from locating within 1000 feet of any residential zone was upheld as a valid, content-neutral, time, place, and manner restriction because the Court found, among other things, that the ordinance was predominantly concerned, not with the content of adult films themselves, but with the secondary effects of adult theatres on the surrounding community. Likewise, in Clark, the Court upheld a National  [**9]  Park Service regulation permitting camping only  [*985]  in designated campgrounds -- which had been challenged on First Amendment grounds -- because the regulation was neutral as to content and because the regulation left open ample alternative avenues of expression. Thus, both Renton and Clark involved situations where the regulation in question encroached upon First Amendment freedoms in a content-neutral manner. Here, however, the confidentiality provision is aimed directly at the content of claimant's speech. Bar Rule 3-7.1 forbids claimants who file disciplinary complaints with the Florida Bar from speaking or publishing about the nature of a pending or past claim. The Rule, as evidenced by its purported justifications, is intended to restrain speech based upon content. As the Supreme Court observed in Young v. American Mini Theatres, supra at 63-64:

 
Nor may speech be curtailed because it invites dispute, creates dissatisfaction with conditions the way they are, or even stirs people to anger. The sovereign's agreement or disagreement with the content of what a speaker has to say may not affect the regulation of the time, place, or manner of presenting the speech. (Footnote  [**10]  omitted)

Moreover, once a claimant files a disciplinary claim with the Florida Bar, the claimant may be forever forbidden from speaking or publishing about such a claim, regardless of the time, place, or manner of such publication, even after the complaint is no longer pending. Thus, the restraint imposed by Rule 3-7.1 is not merely a restriction on speech, limited in time or matter, but rather amounts to an absolute bar, providing no alternative avenues of expression. Accordingly, Rule 3-7.1's confidentiality provision, which absolutely bars certain speech, cannot simply be characterized as a time, place, and manner restriction.

The Florida Bar, however, has offered four principal justifications for Rule 3-7.1. We will address these justifications individually.

1. Confidentiality and immunity encourage the filing of complaints and the cooperation of witnesses.

We note at the outset that Defendants have submitted no evidence, in the form of affidavits or otherwise, to meet the substantial burden of showing that the subject confidentiality provision is indeed justified by compelling state interests. Defendants' claim that confidentiality and immunity encourage the filing of complaints  [**11]  and the cooperation of witnesses is founded on mere assertion and conjecture. The lawyer who may be the target of the complaint surely will learn about the grievance and the identity of the complainant, whether the procedures are deemed confidential or not. Why a complainant would be more inclined to file a grievance against his lawyer, with the knowledge that he is thereby forever barred from speaking publicly about the grievance, is unclear. Indeed, it is just as likely that potential claimants would be dissuaded from initiating disciplinary proceedings if they reasonably believed that filing a petition with the Florida Bar would subject them to a perpetual bar from speaking out about the grievance. Thus, an equally compelling assertion can be made that the effect of Bar Rule 3-7.1, along with the attendant threat that violators of the rule will be held in contempt of court, may actually serve to discourage the filing of complaints, surely a result not in harmony with the regulations' intended purpose. At all events, no data or evidence has been presented by the Bar in support of this claim. Moreover, as Judge Roettger observed in Doe v. Gonzalez, 723 F. Supp. 690  [**12]  (S.D.Fla. 1988), affirmed without opinion, 886 F.2d 1323 (11th Cir. 1989), "protection of complainants could be advanced by the less drastic means of permitting confidentiality, not [by] requiring it."

2. Confidentiality, until the time of a finding of probable cause, protects lawyers from the injuries that would result from the public filing of frivolous complaints and the knowledge of the public that such complaints are being investigated by the Bar.

Defendants assert that Florida has a compelling interest in maintaining the integrity  [*986]  and competence of the Bar and that Rule 3-7.1's confidentiality provision serves to protect the reputation of individual attorneys and the Bar itself. While Florida surely has a valid interest in maintaining the integrity of the Bar, again it has offered no evidence to support the specific claim that Rule 3-7.1's confidentiality provision can be reasonably expected to accomplish this worthy end. We note at the outset that in the instant case there is no claim that the Bar grievance filed by Plaintiff was either frivolous or unfounded. To the contrary, Plaintiff's grievance was deemed to be well founded and the attorney involved was reprimanded  [**13]  by the Florida Bar.

However, even if we were to accept Defendants' claim that Rule 3-7.1 is necessary to protect the reputation and integrity of an individual attorney, and that the integrity of the Florida Bar as a whole is thereby enhanced -- and no proof has been offered for either claim -- protecting the reputation of an individual, or indeed the profession as a whole, would be insufficient justification for absolutely barring the dissemination of truthful information. See Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 841-42, 98 S. Ct. 1535, 56 L. Ed. 2d 1 (1978). In Landmark, The Supreme Court struck down as violative of First Amendment freedoms a Virginia statute that subjected persons to criminal sanctions for divulging information regarding judicial misconduct proceedings. In Landmark, a Virginia newspaper published an accurate article about a pending state judicial inquiry. The newspaper was subsequently fined $ 500 pursuant to a Virginia statute making judicial inquiries confidential and providing that "Any person who shall divulge information in violation of the provisions of this section shall be guilty of a misdemeanor."

Virginia argued, much as the Bar  [**14]  argues today, that the encroachment imposed upon free speech by its confidentiality provision was justified by the statute's intended purpose of protecting the reputation of Virginia's judges and maintaining the institutional integrity of its courts. The Supreme Court, however, found both of these justifications insufficient:

 
Neither the Commonwealth's interest in protecting the reputation of its judges, nor its interest in maintaining the institutional integrity of its courts is sufficient to justify the subsequent punishment of speech at issue here, even on the assumption that criminal sanctions do in fact enhance the guarantee of confidentiality. Admittedly, the Commonwealth has an interest in protecting the good repute of its judges, like that of all other public officials. Our prior cases have firmly established, however, that injury to official reputation is an insufficient reason "for repressing speech that would otherwise be free." The remaining interest sought to be protected, the institutional reputation of the courts, is entitled to no greater weight in the constitutional scales.

 
Id. at 841-42 (citations omitted). Here, the interests enumerated by Defendants to  [**15]  justify Rule 3-7.1's encroachment upon free speech are markedly similar to the interests found to be insufficient in Landmark, supra. Just as maintaining both the reputation of judges and the integrity of the courts could not justify the imposition of criminal sanctions against violators of the Virginia confidentiality provision struck down in Landmark, here we find Defendants' almost identical justifications to be similarly deficient. If maintaining the reputation of the judiciary as an abstract end is insufficient to justify encroaching upon the robust exercise of free speech, then maintaining the reputation of lawyers or the Bar is, in our view, equally insufficient. n2

Landmark Communications Inc. v. Virginia, 435 U.S. 829, 842, 56 L. Ed. 2d 1, 98 S. Ct. 1535 (1978) (quoting Bridges v. California, 314 U.S. 252, 270-71, 62 S. Ct. 190, 86 L. Ed. 192 (1941)). We believe such reasoning applies with equal vigor here. Imposing an enforced silence  [**17]  on all aspects of Bar disciplinary matters -- including investigations, probable cause hearings, and final dispositions -- is more likely, in our view, to engender resentment, suspicion, and contempt for Florida's Bar and its legal institutions than to promote integrity, confidence, and respect. Moreover, the regulation misapprehends the character of American public opinion and the fairness of our people. As Justice Brandeis wrote in Whitney v. California, 274 U.S. 357, 375-76, 47 S. Ct. 641, 71 L. Ed. 1095 (1927) (concurring):

 
Those who won our independence believed . . . that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; . . . that public discussion is a political duty; and that this should be a fundamental principle of American government. . . . Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law -- the argument of force in its worst form. (Footnote omitted)

Finally, even if we assume arguendo that confidentiality will protect against the loss of public confidence in the Bar caused by the filing of frivolous suits, Rule 3-7.1 goes much further;  [**18]  it bars publication of non-frivolous suits as well. The fact that publication of meritorious claims against Bar members may result in the erosion of public confidence in the Bar is simply not a sufficient justification for absolutely prohibiting speech that would otherwise be free. See Landmark, supra 435 U.S. at 841-42.

4. Confidentiality facilitates the Bar's investigation of a complaint.

Again, Defendants' claim that the subject confidentiality provision will facilitate the Bar's ability to investigate complaints is founded on nothing more than assertion. As with the first three grounds offered to justify Rule 3-7.1's encroachment upon the First Amendment, Defendants have failed to submit any evidence to substantiate this claim. Moreover, keeping disciplinary proceedings completely confidential may actually hinder the Bar's investigation of a complaint by limiting access to third-party witnesses, who might otherwise feel obligated to come forward, to tell their side of the story. While the aim of facilitating the Bar's ability to investigate complaints is surely worthy, the means employed are not reasonably connected to that end.

Perhaps the most troubling aspect of the Rule's confidentiality  [**19]  provision is its sweep and breadth. See Shelton v. Tucker, 364 U.S. at 488; Smith v. Butterworth, 866 F.2d at 1320. Insofar as the principal justification for the Rule is to protect the reputation of individual lawyers from the filing of frivolous complaints, and ultimately protect and maintain the integrity of the Bar itself, the confidentiality provision imposed goes too far. The provision at issue in this lawsuit does not merely  [*988]  restrict publication of a pending complaint prior to the time such complaint is found by the Bar to be meritorious, but rather continues to bar forever publication by the complainant, even after the Bar has found a grievance to be well founded and has reprimanded the attorney in question. No justification for so sweeping an infringement on free speech has been offered by the Bar. Furthermore, the filing of false complaint could perhaps be punished, without imposing prior restraint on speech, in much the same way perjury or the filing of false reports of crime are punished. See Fla. Stat. §§ 837.02 and 817.49; n3 see also Doe v. Gonzalez, supra at 694.

 
 [*987]  3. Confidentiality  [**16]  avoids the loss of confidence in the Bar that might be caused by publication of frivolous claims.

This claimed interest overlaps with the second claimed interest. The first problem with this claim, however, is that this interest -- avoiding loss of confidence in the Bar that might be caused by the publication of a frivolous claim -- cannot fairly be advanced in the context of this case, as Plaintiff's grievance has been determined to be meritorious. Furthermore, in addressing a similar justification of the Virginia statute challenged in Landmark, The Supreme Court observed:

The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. . . . An enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect.

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n2 Defendants attempt to distinguish Landmark on two grounds: first, that Landmark involved non-participants in a disciplinary proceeding -- members of the press -- while the instant case involves a participant in a Bar disciplinary proceeding; and second, that the Virginia statute at issue imposed criminal sanctions against violators of Virginia's confidentiality provision while Rule 3-7.1 merely allows violators to be held in contempt of court. We find neither distinction persuasive.

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          Judge Marcus did the First Amendment proud.  Judge Marcus did the Supreme Court a good deed that it should have done for itself and the people in Florida.  The task at hand should be accomplished by this Court, and not left to the federal judiciary.

            If J. Allen Grimsley’s reading of Georgia State Bar Rule 4-221 is correct, it deprives John Cole Vodicka, Tim Mellen and other persons equal protection, as secured by Georgia Constitution Article I, Section I, Paragraph II and the Fourteen Amendment to the United States Constitution in that the rule allows lawyers who are the subject of the complaint to reveal the complaint and their defenses if they wish, but do not allow the party initiating the complaint the same rights.

Issue Five

Georgia State Bar Rule 4-221 (3) is so vague that it does not place persons who have filed a complaint with the Bar on notice that they are subject to the confidentiality provision, if, in fact, the rule is intended for that use, as J. Allen Grimsley maintains.  This vague provision of Georgia State Bar Rule 4-221 violates the Fourteenth Amendment right of persons to be placed on notice for conduct that they may be held in criminal contempt for committing.

The entire Georgia State Bar Rule 4-221 is included here in order that it is easier to observe that the section relied upon by J. Allen Grimsley is in the “procedures section” that deals with the actual “investigation or proceeding provided for herein” and has nothing to do with the filing of the complaint or a statement about the contents of a bar complaint.  We must remember that the contempt charged is criminal contempt and specific notice of the offensive conduct is required.  This rule is so vague that reasonable people can disagree if it places anyone on any type of notice about anything involving confidentiality.  The rule could very well be the basis for a bar complaint if the intent of the rule is to inform a person filing a bar complaint that the person cannot discuss the existence of the complaint or the content without being held in contempt of the Georgia Supreme Court.

Georgia State Bar Rule 4-221 follows, the most relevant portions are in bold type.

Rule 4-221. Procedures

(a)  Oaths. Before entering upon his duties as herein provided, each member of the State Disciplinary Board and each Special Master shall subscribe to an oath to be administered by any person authorized to administer oaths under the laws of this State, such oath to be in writing and filed with the Executive Director of the State Bar of Georgia. The form of such oath shall be:

 "I do solemnly swear that I will faithfully and impartially discharge and perform all of the duties incumbent upon me as a member of the State Disciplinary Board of the State Bar of Georgia/Special Master according to the best of my ability and understanding and agreeable to the laws and Constitution of this State and the Constitution of the United States so help me God."

 (b)  Witnesses and Evidence; Contempt.

 (1)  The respondent and the State Bar shall have the right to require the issuance of subpoenas for the attendance of witnesses to testify or to produce books and papers. The State Disciplinary Board or a Special Master shall have power to compel the attendance of witnesses and the production of books, papers, and documents, relevant to the matter under investigation, by subpoena, and as further provided by law in civil cases under the laws of Georgia.

 (2)  The following shall subject a person to rule for contempt of the Special Master or Panel:

 (i)  disregard, in any manner whatever, of a subpoena issued pursuant to Rule 4-221(b) (1),

 (ii)  refusal to answer any pertinent or proper question of a Special Master or Board member, or

 (iii)  wilful or flagrant violation of a lawful directive of a Special Master or Board member.

 It shall be the duty of the chairperson of the affected Panel or Special Master to report the fact to the Chief Judge of the superior court in and for the county in which said investigation, trial or hearing is being held. The superior court shall have jurisdiction of the matter and shall follow the procedures for contempt as are applicable in the case of a witness subpoenaed to appear and give evidence on the trial of a civil case before the superior court under the laws in Georgia.

(3)  Any member of the State Disciplinary Board and any Special Master shall have power to administer oaths and affirmations and to issue any subpoena herein provided for.

(4)  Depositions may be taken by the respondent or the State Bar in the same manner and under the same provisions as may be done in civil cases under the laws of Georgia, and such depositions may be used upon the trial or an investigation or hearing in the same manner as such depositions are admissible in evidence in civil cases under the laws of Georgia.

(5)  All witnesses attending any hearing provided for under these rules shall be entitled to the same fees as are allowed by law to witnesses attending trials in civil cases in the superior courts of this State under subpoena, and said fees shall be assessed against the parties to the proceedings under the rule of law applicable to civil suits in the superior courts of this State.

(6)  Whenever the deposition of any person is to be taken in this State pursuant to the laws of another state, territory, province or commonwealth, or of the United States or of another country, for use in attorney discipline, fitness or disability proceedings there, the chairperson of the Investigative Panel, or his or her designee upon petition, may issue a summons or subpoena as provided in this section to compel the attendance of witnesses and production of documents at such deposition.

(c)  Venue of Hearings.

(1)  The hearings on all complaints and charges against resident respondents shall be held in the county of residence of the respondent unless he otherwise agrees.

(2)  Where the respondent is a nonresident of the State of Georgia and the complaint arose in the State of Georgia, the hearing shall be held in the county where the complaint arose.

(3)  When the respondent is a nonresident of the State of Georgia and the offense occurs outside the State, the hearing may be held in the county of the State Bar of Georgia headquarters.

(d)  Confidentiality of Investigations and Proceedings.

(1)  All investigations and proceedings provided for herein, prior to a filing in the Supreme Court, shall be confidential unless the respondent otherwise elects or as hereinafter provided in this rule.

(2)  After a proceeding under these rules is filed with the Supreme Court, all evidentiary and motion hearings shall be open to the public and all reports rendered shall be public documents.

(3)  Except as expressly permitted by these rules, no person connected with a disciplinary investigation or proceeding shall disclose information concerning or comment on any investigation or proceeding provided for herein prior to the filing of a formal complaint in the Supreme Court concerning such investigation or proceeding:

(i)  Nothing in the rules shall prohibit truthful and accurate public statements of fact about an investigation or proceeding, provided however, that in the event of such statements any other person involved in the investigation or proceeding may make truthful and accurate public statements of fact regarding the investigation or proceeding, including the revelation of information otherwise confidential under the provisions of Rule 4-102(d), Standard 28, as may be reasonably necessary to defend that person's reputation;

(ii)  Wilful and malicious false statements of fact made by any person connected with a disciplinary investigation or proceeding may subject such person to rule for contempt by the Supreme Court.

(4)  The Office of the General Counsel of the State Bar of Georgia or the Investigative Panel of the State Disciplinary Board may reveal information which would otherwise be confidential under this rule under the following circumstances so long as the recipient is admonished that the recipient may not disclose the information except as necessary to complete the tasks for which the information was provided:

(i)  In the event of the charge or charges of wrongful conduct against any member of the State Disciplinary Board or any person who is otherwise connected with the disciplinary proceeding in any way, either Panel of the Board or its Chairperson or his or her designee, may authorize the use of information concerning disciplinary investigations or proceedings to aid in the defense against the charge or charges.

(ii)  In the event that the Office of the General Counsel receives information which suggests criminal activity, such information may be revealed to the appropriate criminal prosecutor.

(iii)  In the event of subsequent disciplinary proceedings against a lawyer, the Office of the General Counsel may, in aggravation of discipline in the pending disciplinary case, reveal the imposition of confidential discipline under Rules 4-205 to 4-208 and facts underlying the imposition of discipline.

(iv)  A complainant or lawyer representing the complainant may be notified of the status and/or disposition of the complaint.

(5)  The Office of the General Counsel may reveal confidential information to the following persons if it appears that the information may assist them in the discharge of their duties so long as the recipient is admonished that the recipient may not disclose the information except as necessary to complete the tasks for which the information was provided:

 (i)  the committee on the Arbitration of Attorney Fee Disputes;

 (ii)  the Trustees of the Clients' Security Fund;

 (iii)  the Judicial Nominating Commission;

 (iv)  the Lawyer Assistance Program;

 (v)  the Board to Determine Fitness of Bar Applicants;

 (vi)  the Judicial Qualifications Commission;

 (vii)  the Executive Committee with the specific approval of the following representatives of the Investigative Panel of the State Disciplinary Board: the chairperson, the vice-chairperson and a third representative designated by the chairperson; and

 (viii)  the Formal Advisory Opinion Board; and

 (ix)  the Consumer Assistance Program.

(6)  Any information used by the Office of the General Counsel in a proceeding under Rule 4-108 or in a proceeding to obtain a Receiver to administer the files of a member of the bar, will not be confidential under this rule.

(7)  The Office of the General Counsel may reveal confidential information when required by law or court order.

(8)  The authority or discretion to reveal confidential information under this rule shall not constitute a waiver of any evidentiary, statutory or other privilege which may be asserted by the State Bar of Georgia or the State Disciplinary Board under Bar Rules or applicable law.

 (9)  Nothing in this rule shall prohibit the Office of the General Counsel or the Investigative Panel from interviewing potential witnesses or placing the Notice of Investigation out for service by sheriff or other authorized person.

(e)  Burden of Proof; Evidence.

(1)  In all proceedings under this Chapter the burden of proof shall be on the State Bar of Georgia, except for proceedings under Bar Rule 4-106.

(2)  In all proceedings under this Chapter occurring after a finding of probable cause as described in Rule 4-204.4, the procedures and rules of evidence applicable in civil cases under the laws of Georgia shall apply, except that the quantum of proof required of the State Bar shall be clear and convincing evidence.

(f)  Pleadings and Copies. Original pleadings shall be filed with the appropriate Panel of the State Disciplinary Board at the headquarters of the State Bar of Georgia and copies served upon the Special Master and all parties to the disciplinary proceeding. Depositions and other original discovery shall be retained by counsel and shall not be filed except as permitted under the Uniform Rules of the Superior Court.

(g)  Pleadings and Communications Privileged. Pleadings and oral and written statements of members of the State Disciplinary Board, members and designees of the Committee on Lawyer Impairment, Special Masters, Bar counsel and investigators, complainants, witnesses, and respondents and their counsel, made to one another or filed in the record during any investigation, intervention, hearing or other disciplinary proceeding under this Part IV, and pertinent to the disciplinary proceeding, are made in performance of legal and public duty, are absolutely privileged, and under no circumstances form the basis for a right of action.

Issue Six

A fair reading of Georgia State Bar Rule 4-221 does not prohibit a complaining person from revealing the content of a complaint nor does it prohibit a person from revealing the fact that a complaint is filed.

It is difficult to determine how an objective person can read Georgia State Bar Rule 4-221 to place a person on notice of conduct that could be prosecuted as criminal contempt.  This issue is so obvious that a person understands it by carefully reading the rule or the issue will never be understood by that person.  The brochure that the State Bar of Georgia sent to John Cole Vodicka and Tim Mellen and sends to all persons seeking information about filing a bar complaint does not include the confidentiality requirements.  This brochure is Attachment 3 to this Response.

Issue Seven

John Cole Vodicka and Tim Mellen sought the right of allocution in this matter (oral argument) and this was denied, with the comment that “Argument is not ordinarily heard in bar disciplinary cases”.  This policy cannot abridge these litigants’ right to both allocution and the right to present evidence in their defense as protected by the Sixth and Fourteenth Amendments to the United States Constitution.

            This issue needs little explanation and can easily become the most harmless of errors if the Court dismisses the charges of J. Allen Grimsley.

Issue Eight

John Cole Vodicka and Tim Mellen are being selectively prosecuted in this matter because of their political views and attempts to correct the system of indigent defense in southwest Georgia.

            Counsel for John Cole Vodicka and Tim Mellen is unaware of a prosecution under this Georgia State Bar Rule.  Without question, one does not have to wait an hour at the Commerce Club before this rule will be violated.  Is there a difference when this rule is violated at the Commerce Club than in front of the courthouse in Sumter County?  Certainly, there is a difference in the alleged violator’s status in the legal community.  How can we prosecute laypersons for the everyday conversations of those eating and drinking at the Commerce Club?  Maybe we should knock on Yick Wo’s tombstone and ask if he wondered the same thing about his laundry.  Yick Wo v. Hopkins, 118 U.S. 356 (1886).

Issue Nine

John Cole Vodicka and Tim Mellen, subject to a disposition of their challenges to the constitutionality of the rule and a determination on their motion to dismiss, stand ready for trial and plead not guilty.  John Cole Vodicka and Tim Mellen request the right to present evidence to this Court.  John Cole Vodicka and Tim Mellen invoke all of their United States and Georgia Constitutional protections.

            As ready as these two individuals may be for trial, counsel believes this is a burden that they should not have to bear.

Issue Ten

John Cole Vodicka and Tim Mellen are habitual, politically protected, free speech offenders.  There is substantial similar circumstance evidence to support the fact that both John Cole Vodicka and Tim Mellen often seek redress from their government.  The Court should resolve the constitutionality of Georgia State Bar Rule 4-221 while these two people are under accusation for these charges by J. Allen Grimsley and are within the custody of this Court.  Due to the fact that J. Allen Grimsley is a municipal judge, this Court should also address this same restriction on speech restricted by the Judicial Qualifications Commission.  Undoubtedly, there will be more charges against these two people for… “CENSORED.”  Further comment is restricted by the Judicial Qualifications Commission Rule 20, if this Court Holds that Georgia State Bar Rule 4-221 is constitutional.

            J. Allen Grimsley is a municipal judge in Ellaville, Georgia.  His conduct deserves the attention of the Judicial Qualification Commission.  John Cole Vodicka has filed previous complaints with the Judicial Qualification Commission and discussed these complaints with the media because John Cole Vodicka did not have confidence that the commission would deal properly with the blatant racism of a magistrate.  John Cole Vodicka received threats from this commission about having him held in contempt of this Court.  John Cole Vodicka and Tim Mellen  “CENSORED.”

        Rule 20 of the Judicial Qualifications Commission is included here for two reasons.  First, the rule is included to show how the rule differs in the notice of confidentiality given a person filing a complaint before the Judicial Qualifications Commission.  Second, the rule has the constitutional problems identified with Georgia State Bar Rule 4-221.

            Rule 20 of the Judicial Qualifications Commission is a follows.

Judicial Qualifications Commission Rule 20. Confidentiality and exceptions.

(a)  The proceedings of the Commission, including, but not limited to, complaints filed with the Commission, conferences of the Commission with the respect to matters pending before it, minutes of actions and decisions of the Commission, correspondence and other communications, and all other papers and documents shall be kept confidential. However, this confidentiality requirement shall not apply to notice of a formal hearing, a formal hearing, reports of the Commission to the Supreme Court recommending discipline, and decisions of the Commission made after a formal hearing that the judge with respect to whom the hearing was held was not guilty of misconduct justifying a recommendation of discipline. When, notwithstanding the rule of confidentiality set out in the first sentence of this subparagraph, the existence of a complaint filed with the Commission or any investigation of a judge whether or not based upon a complaint shall in some way become public, the Commission, at the request of the judge or upon its own motion if it considers such to be desirable, may make such statement with respect to the handling and status of the proceedings as the Commission may consider appropriate. When, in the exercise of its functions, the Commission has information concerning conduct of a member of the Bar which the Commission feels should be considered by the Disciplinary Board of the State Bar of Georgia for the purpose of determining whether such conduct constitutes a violation of the Code of Professional Responsibility, the Commission shall have the authority and it shall be its duty to refer the matter to the Board for such action as the Board may consider appropriate. The Commission shall be further authorized, in its discretion, to disclose to the Judicial Nominating Commission of the State of Georgia and to the Governor of the State, or any Commission, Board or Committee officially appointed to evaluate nominees for federal judgeships, including, but not limited to, a committee appointed by the American Bar Association for such purpose, any information involving any prospective nominee for judicial appointment which the Commission feels such Commission, Board or Committee should consider in passing upon the qualifications and fitness of the nominee for judicial appointment.

(b)  All persons acting for the Commission in investigating a judge or participating in an official capacity in any proceedings relating thereto, including court reporters, shall be specifically advised by the Chairperson or by the Commission's representative of the requirement of confidentiality with respect to such matters as are confidential under subparagraph (a) of this Rule and shall be directed not to disclose any information acquired by them to any person not officially or formally connected with the investigation or proceedings.

(c)  All subpoenas and other proceedings which may be issued or conducted by the Commission prior to service of a notice of formal hearing shall not name the judge against whom the charges are pending, but shall style the proceedings by number as set out in Rule 5.

(d)  If there shall be probable cause for inquiry concerning, or prosecution of, a witness for perjury in proceedings before the Commission, the record of the proceedings or papers filed in connection therewith shall be disclosed to the extent required by the inquiry or prosecution.

(e)  A judge about whom an inquiry or investigation is being made may request release of information concerning the complaint and investigation, and the Commission, if it considers appropriate, may comply with such request.

(f)  Any person violating the rule of confidentiality as set forth in this section shall be subject to punishment for contempt of the Supreme Court.

(g)  The rule of confidentiality as set forth in this section shall not apply to any information which the Commission considers to be relevant to any current or future civil or criminal action against a judge, and upon receipt of a duly issued subpoena or court order by any state or federal court of record, the Commission is authorized to comply with the same to the extent required by such subpoena or court order.

(h)  The rule of confidentiality set forth in this section shall not apply to any complaint alleging a violation of Canon 7 of the Code of Judicial Conduct which the Commission, in its sole discretion, determines should be handled on an expedited basis in the manner set forth in Rule 27.

            Send more Chuck Berry; no, send more Judge Marcus.  First, it is important to look at the United States Supreme Court holding in Landmark.

In Landmark Communications Inc. v. Virginia, 435 U.S. 829, 842, 56 L. Ed. 2d 1, 98 S. Ct. 1535 (1978) that court recognized the importance of free speech as follows.

The Commonwealth also focuses on what it perceives to be the pernicious effects of public discussion of Commission proceedings to support its argument. It contends that the public interest is not served by discussion of unfounded allegations of misconduct which defames honest judges and serves only to demean the administration of justice. The functioning of the Commission itself is also claimed to be impeded by premature disclosure of the complainant, witnesses, and the judge under investigation. Criminal sanctions minimize these harmful consequences, according to the Commonwealth, by ensuring that the guarantee of confidentiality is more than an empty promise. [435 U.S. 829, 841]

It can be assumed for purposes of decision that confidentiality of Commission proceedings serves legitimate state interests. The question, however, is whether these interests are sufficient to justify the encroachment on First Amendment guarantees which the imposition of criminal sanctions entails with respect to nonparticipants such as Landmark. The Commonwealth has offered little more than assertion and conjecture to support its claim that without criminal sanctions the objectives of the statutory scheme would be seriously undermined. While not dispositive, we note that more than 40 States having similar commissions have not found it necessary to enforce confidentiality by use of criminal sanctions against nonparticipants.12

Moreover, neither the Commonwealth's interest in protecting the reputation of its judges, nor its interest in maintaining the institutional integrity of its courts is sufficient to justify the subsequent punishment of speech at issue here, even on the assumption that criminal sanctions do in fact enhance the guarantee of confidentiality. Admittedly, the Commonwealth has an interest in protecting the good repute of its judges, like that of all other public officials. Our prior cases have firmly established, however, that injury to official reputation is an insufficient [435 U.S. 829, 842] reason "for repressing speech that would otherwise be free." New York Times Co. v. Sullivan, 376 U.S., at 272-273. See also Garrison v. Louisiana, 379 U.S. 64, 67 (1964). The remaining interest sought to be protected, the institutional reputation of the courts, is entitled to no greater weight in the constitutional scales. See New York Times Co. v. Sullivan, supra. As Mr. Justice Black observed in Bridges v. California, 314 U.S., at 270-271:

"The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. . . . [A]n enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect."

Mr. Justice Frankfurter, in his dissent in Bridges, agreed that speech cannot be punished when the purpose is simply "to protect the court as a mystical entity or the judges as individuals or as anointed priests set apart from the community and spared the criticism to which in a democracy other public servants are exposed." Id., at 291-292.

            Now for all who have waited, here is more Judge Marcus; this time on the Judicial Qualifications Commission’s choking of free speech.  Again, while Judge Marcus was a District Judge, he wrote in John Doe v. State of Florida Judicial Qualifications Commisssion, 748 F.Supp. 1520 (S.Dist.Fla. 1990), as follows.

Government regulation of speech on the basis of content is presumed to violate the First Amendment. City of Renton v. Playtime Theatres Inc., 475 U.S. 41, 46-47, 106 S. Ct. 925, 928, 89 L. Ed. 2d 29 (1986). However, government regulation of the time, place or manner of protected speech is valid provided the restrictions "are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open alternative channels for communication of the information." Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S. Ct. 3065, 3069, 82 L. Ed. 2d 221 (1984). See also Ward v. Rock Against Racism, 491 U.S. 781, 109 S. Ct. 2746, 2753, 105 L. Ed. 2d 661 (1989), rehearing den., 492 U.S. 937, 110 S. Ct. 23, 106 L. Ed. 2d 636; Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S. Ct. 2440, 49 L. Ed. 2d 310 (1975). In the instant case, the confidentiality rule as applied clearly does not satisfy two of the requisite elements for a valid time, place and manner  [**9]  restriction. First, the rule is not justified  [*1524]  without reference to the content of the speech which the government seeks to prohibit. Second, the rule plainly does not allow for alternative avenues of communication in situations where the JQC does not file a formal complaint with the Florida Supreme Court.

A common thread running through the time, place and manner restrictions is that each of the regulations were justified on the basis of secondary effects emanating from the proscribed speech rather than on the basis of the content of the speech standing alone. See e.g. Renton, 475 U.S. at 43-44 (upholding zoning ordinance on adult movie theatres based on the finding that the ordinance was primarily concerned with the secondary effects of adult theatres on surrounding neighborhoods rather than the content of the movies themselves); Ward, 109 S. Ct. at 2750 (upholding regulations of concert performances in public park based on the determination that the regulations were concerned with controlling noise levels rather than restricting the content of concert performances); Clark, 468 U.S. at 288 (finding prohibition of protest camping on public lands to be constitutional where  [**10]  justified on the basis of aesthetic considerations rather than on the basis of content regulation). The law is clear, however, that where a rule or regulation is intended to restrain speech based on content, the restriction violates the First Amendment. As the Supreme Court observed in Young, 427 U.S. at 63-64;

 
Nor may speech be curtailed because it invites dispute, creates dissatisfaction with conditions the way they are, or even stirs people to anger. The sovereign's agreement or disagreement with the content of what a speaker has to say may not affect the regulation of the time, place or manner of presenting speech. (Footnote omitted)

Recently, in Baugh v. Judicial Inquiry and Review Commission, 907 F.2d 440 (4th Cir. 1990), the Fourth Circuit considered a First Amendment challenge to a confidentiality rule similar to the one at issue today. n1 The state attempted to justify its confidentiality regulation by claiming that the regulation was an "effective method for identifying unfit or disabled judges and facilitating disciplinary action or their removal from the bench." Id. at 444. In expressly rejecting the notion that the Virginia confidentiality provision represents  [**11]  a valid time, place and manner restriction, the Fourth Circuit wrote that:

 
Although the Commission argues that this justification is unrelated to the content of the speech, it is inescapable that the asserted justification for section 2.1-37.13 is very closely related to the content of the speech. The reason that it may be an effective method of motivating disabled or unfit judges to voluntarily resign from the bench is that by resigning, a judge may avoid the public criticism that might follow were it revealed that a complaint had been filed against him. It is the content of the speech that is critical to section 2.1-37.13 for it silences all speech related to the actual filing of a complaint with the Commission and thus is not a regulation that has only the "secondary" or incidental effect of restricting speech. The outright, direct ban on speech concerning this single topic can only be justified by the content of the speech.

 
Id. at 444, (citing Doe v. Supreme Court of Florida, 734 F. Supp. 981 (S.D. Fla. 1990) (Florida Bar Rule prohibiting complainant from disclosing information regarding disciplinary proceedings is not justified on bases unrelated to the content of  [**12]  the  [*1525]  speech); Providence Journal Co. v. Newton, 723 F. Supp. 846, 854 (D.R.I. 1989) (confidentiality provisions of Rhode Island's government ethics law prohibiting public discussion of existence and content of complaint filed against public official are "prototypical content-based regulations of protected speech")

In the instant case, the JQC has not presented any non-content related justifications for the confidentiality rule. Rather, each of the stated justifications for the rule -- avoidance of the complaint mechanism being used as a sounding device for unfounded complaints; protection of the privacy of state judges; facilitation of investigations; and the state interest in upholding the reputations of and public confidence in individual judges as well as the judiciary as an institution -- are all directly related to the content of the prohibited speech rather than any secondary effects emanating from the speech. Accordingly, the provision may not be justified simply as a content-neutral time, place and manner restriction.

Moreover, the confidentiality provision as applied to the facts of this case also fails to pass muster as a time, place and manner restriction since the Plaintiff is left with no alternative means of communicating the fact that he has filed a complaint against a judge with the JQC. In instances such as these where formal charges will not be filed with the Florida Supreme Court, the complainant is forever barred from comment on the fact that a complaint has been filed.  [**14]  Therefore, the rule is manifestly not justifiable as a mere time, place and manner restriction. See Doe, supra (confidentiality provision concerning complaints against attorneys made to the Florida Bar may not be classified as a valid time, place and manner restriction where the provision acts as an absolute bar to speech or publication regarding the complaint). Moreover, where a restriction on speech is imposed on the basis of the content of the speech itself, the restriction is subject to the "most exacting scrutiny." Texas v. Johnson, 491 U.S. 397, 109 S. Ct. 2533, 2543, 105 L. Ed. 2d 342 (1989) (quoting Boos v. Barry, 485 U.S. 312, 321, 108 S. Ct. 1157, 99 L. Ed. 2d 333 (1988)). A content-based restriction on protected speech must be "necessary to serve a compelling state interest" and must be "narrowly drawn to achieve that end." Boos, 485 U.S. at 321 (quoting Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37, 45, 103 S. Ct. 948, 955, 74 L. Ed. 2d 794 (1983). And the burden rests squarely on the government to show the existence of such compelling interests. First National Bank of Boston v. Bellotti, 435 U.S. 765, 786, 98 S. Ct. 1407,  [**15]  55 L. Ed. 2d 707 (1978).

Where a restriction on speech implicates the free discussion of governmental affairs, the courts have been particularly vigilant in enforcing First Amendment rights. As the Supreme Court observed in Mills v. Alabama, 384 U.S. 214, 218, 86 S. Ct. 1434, 1437, 16 L. Ed. 2d 484 (1966):

 
Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.

 
See also Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 838, 98 S. Ct. 1535, 56 L. Ed. 2d 1 (1978) (finding that publication of information regarding proceedings before judicial disciplinary board "lies near the core of the First Amendment"); Butterworth v. Smith, 494 U.S. 624, 110 S. Ct. 1376, 1381, 108 L. Ed. 2d 572 (1990) ("the publication of information relating to alleged governmental misconduct . . . has traditionally been recognized as lying at the core of the First Amendment."). The High Court has further recognized that: a principle "function of free speech under our system of government is to invite dispute. It may indeed best serve its high  [**16]  purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger."

 
Johnson, 109 S. Ct. at 2541 (quoting Terminiello v. Chicago, 337 U.S. 1, 4, 69 S. Ct. 894, 896, 93 L. Ed. 1131 (1949)). In this case, the Plaintiff seeks to publicly criticize  [*1526]  the JQC for failing to disclose the disposition of the complaint and for the nature of the disposition itself.

The JQC's stated justifications for Section 12(d) must be evaluated against this backdrop of strict analysis. The JQC has set forth the following governmental interests in support of the confidentiality provision:

 
a. To prevent a complainant who might have self-serving motives from publicly discussing the fact of filing of a complaint that may prove to be unfounded until a preliminary investigation has been completed;
 
b. To minimize the risk of injury to the reputation of a judicial constitutional officer caused by any adverse publicity from unfounded complaints;
 
c. To maintain the public's confidence in its judicial officers by preventing the premature disclosure of the fact of filing of a complaint that may ultimately prove to be unfounded;

d. To protect  [**17]  the complainant and witnesses from possible pressure and recrimination;

e. To facilitate the investigation of a complaint;

f. To prevent the potential use of a constitutional agency to help injure the reputation of a judge;

g. To protect the constitutional right of privacy of a member of the Florida Bar who is also a constitutional officer -- a judge; and

h. To assure that the public policy behind the subject constitutional provision as adopted by the citizens of the State of Florida is protected consistent with the will of the people.

The interests asserted by the JQC may be consolidated into four principal interests:

1) Prevention of damage to the reputation of individual judges as well as the judiciary as an entity resulting from the filing of complaints which ultimately prove to be unfounded and prevention of concomitant loss of confidence in the judicial system resulting from the filing of unmeritorious complaints;

2) Avoidance of the possibility that a complainant might use publication of the fact that a complaint has been filed as a "bully pulpit" for the dissemination of a baseless complaint;

3) Facilitation of effective investigations by the Judicial Qualifications  [**18]  Commission;

4) Protection of judge's constitutional right of privacy.

Each one of these justifications will be analyzed below.

A. Reputational Considerations

While Florida surely has a valid interest in maintaining the reputation of its judges and the integrity of its judiciary, this interest is plainly insufficient under controlling precedent to sustain this restriction on free speech. In Landmark, the Supreme Court squarely addressed the issue of whether regulations mandating confidentiality as to information concerning judicial disciplinary proceedings may be justified as a means of protecting the reputation of judges. Landmark arose out of a challenge to a Virginia statute which subjected persons to criminal sanctions for disclosing information regarding judicial misconduct proceedings. Virginia defended the constitutionality of the statute, much as the JQC argues today, by maintaining that the statute was necessary to protect the reputations of Virginia's judges as well as to maintain the institutional reputation of Virginia's courts. In finding these interests insufficient to justify the infringement on First Amendment speech, the Supreme Court found that:

 [**19]  neither the Commonwealth's interest in protecting the reputation of its judges, nor its interest in maintaining the institutional integrity of its courts is sufficient to justify the subsequent punishment of speech at issue here, even on the assumption that criminal sanctions do in fact enhance the guarantee of confidentiality. Admittedly, the Commonwealth has an interest in protecting the good repute of its judges, like that of all other public officials. Our prior cases have firmly established, however, that injury to official reputation is an insufficient reason "for repressing speech that would  [*1527]  otherwise be free." New York Times v. Sullivan, 376 U.S. at 272-273, 84 S. Ct. at 722. See also Garrison v. Louisiana, 379 U.S. 64, 67, 85 S. Ct. 209, 212, 13 L. Ed. 2d 125 (1964). The remaining interest sought to be protected, the institutional reputation of the courts, is entitled to no greater weight in the constitutional scales. See New York Times v. Sullivan, supra.

Landmark, 435 U.S. at 841-42. See also Butterworth, 110 S. Ct. at 1382 ("reputational interests alone cannot justify the proscription of truthful speech.")

The Supreme Court went on to reject the notion  [**20]  that the Virginia confidentiality provision could be justified as an attempt to promote confidence in Virginia's judicial system. Citing Bridges v. California, 314 U.S. 252, 270-271, 62 S. Ct. 190, 86 L. Ed. 192 (1941), the Supreme Court observed that:

"The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion . . . . An enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would engender respect." Landmark, 435 U.S. at 842. The Supreme Court's analysis of the reputational justification in Landmark is equally applicable here. The JQC's asserted interests in protecting the reputation of individual judges as well as the judiciary as an institution is insufficient to support the restriction on free speech. Moreover, the JQC's contention that the confidentiality rule promotes public confidence in the judiciary is unconvincing. The JQC's asserted interest in preserving the reputation of judges from the making of unfounded complaints is largely undermined by its concession  [**21]  that the complainant remains free to disclose all the underlying facts supporting the claim, and even the stated intention to file a complaint with the JQC. Indeed, the JQC conceded that a complainant could freely disclose the underlying facts supporting the complaint even if called upon to testify before the JQC. Only the fact of filing a complaint is barred. Imposing a forced silence on the fact of filing complaints with the JQC is more likely to engender resentment and suspicion than to promote confidence or integrity. Finally, even if the reputational interests cited by the Defendant were sufficient to justify some restrictions on First Amendment rights, § 12(d) is plainly an overbroad means of perfecting those interests. In the first place, the prohibition is not limited to the revelation of false complaints against members of the judiciary; rather, the provision applies to all complaints, even those that prove to be meritorious. Second, § 12(d) forever bars the publication of the fact that a complaint has been filed even in cases where a judge retires or resigns prior to the filing of formal charges with the Supreme Court. The fact that the publication of a meritorious claim  [**22]  against a judge may erode public confidence in the judiciary is not sufficient basis to absolutely prohibit speech otherwise free. See Landmark, 435 U.S. at 841-42.
 
B. Bully Pulpit

The JQC also maintains that by barring disclosure of the fact of filing a complaint, the rule avoids the possibility that a complainant might wrongfully use the fact of filing with the JQC as a means to amplify and legitimate the claim. This justification is not sufficiently persuasive to prohibit the exercise of free speech.

The assertion of this interest overstates the degree to which publication of the fact that a complaint has been filed will lead the people to believe that the complaint is likely to be true. Our people are surely familiar with the fact that frivolous complaints are frequently filed both in courts and before various administrative bodies. The notion that the people are somehow unable to determine for themselves what to believe or not believe about issues concerning the body politic is belied by the history of a free people involved in self governance. The danger that publication of filing a complaint will necessarily result in overvaluation  [*1528]  of its merits is largely illusory.  [**23]  This seems especially so where the Defendant JQC has conceded that the complainant may freely disclose the underlying nature of the complaint. And in this case, the Plaintiff's complaint is based upon a transcript of what happened in open court, not information gleaned from a JQC proceeding or hearing.

Additionally, the confidentiality provision is an overbroad means of accomplishing the Defendant's stated justification of avoiding what it has called "the bully pulpit effect." As noted already, the provision at issue applies not only to false complaints, but to the truth as well. Here Florida seeks to proscribe or punish "the publication of information relating to government misconduct -- speech which has traditionally been recognized as lying at the core of the First Amendment." Butterworth v. Smith, 110 S. Ct. at 1381; Landmark, 435 U.S. at 838. To justify such a prohibition, the JQC must evidence a "state interest of the highest order." Smith v. Daily Mail Publishing Co., 443 U.S. 97, 103, 99 S. Ct. 2667, 2671, 61 L. Ed. 2d 399 (1979). We do not think it has met so exacting a standard.

C. Facilitation of Investigations

While the JQC surely has an interest in facilitating  [**24]  the effective investigation of complaints, the JQC has failed to cite any evidence that the confidentiality rule furthers such an interest. The JQC does no more than merely assert the fact that secrecy with respect to the act of filing a complaint facilitates effective investigations. To the extent that the JQC asserts that potential complainants will be discouraged from filing complaints in the absence of a confidentiality rule, § 12(d) as applied to this case does not further the filing of complaints. It is important to note that Plaintiff Doe only wishes to publicize the fact that he has filed a complaint with the JQC. In the absence of the confidentiality provision, a complainant remains equally free not to reveal the fact that a complaint has been filed. See Butterworth 110 S. Ct. at 1382 ("the concern that some witnesses will be deterred from presenting testimony due to fears of retaliation is . . . not advanced by this prohibition; any witness is free not to divulge his own testimony . . .")

Moreover, we do not see how witnesses will be discouraged from testifying merely by prohibiting the disclosure that a complaint has been filed with the JQC. To the contrary, there  [**25]  is little reason to believe that an aggrieved complainant will be discouraged from filing a meritorious complaint with the JQC just because he may have the power to disclose publicly the fact of filing. In fact, the publication of a complaint may well have the effect of furthering the investigation by the JQC by creating awareness of the complaint on the part of third-party witnesses who may then come forward and testify before the JQC. In short, in the absence of evidence put forth by the JQC as to the means by which the confidentiality provision promotes the effective determination of complaints, we are unprepared to find that this interest is sufficiently compelling to overcome the infringement of basic First Amendment rights created by the provision. We emphasize that Doe does not challenge that part of the confidentiality provision which prohibits publication of events which take place during JQC proceedings.

 
D. Protection of Privacy Interests

The JQC also has posited that the confidentiality rule is justified by a governmental interest in protecting "the constitutional right of privacy of a member of The Florida Bar who is also a constitutional officer -- a judge." Defendant's  [**26]  Memorandum of Law, at 4. We are not persuaded by the Defendants' assertion of an interest in protecting judges' constitutional right to privacy.

 
The Supreme Court has observed that:

The cases sometimes characterized as protecting "privacy" have in fact involved at least two different kinds of interests. One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions.

 
Whalen v. Roe, 429 U.S. 589, 599-600, 97 S. Ct. 869, 876, 51 L. Ed. 2d 64 (1977) (footnotes  [*1529]  omitted). In the instant case, the Plaintiff seeks to reveal the fact that a complaint has been filed regarding an action taken by a judge in open court. We fail to see any means by which a revelation of a complaint concerning a public act taken by a sitting judge in open court can be construed as constituting disclosure of a personal matter in contravention of a protectable privacy interest. Moreover, the disclosure of the fact that a complaint has been filed manifestly has no implications on the judge's interest in independently making important decisions. Accordingly, we can find no privacy interests which are even colorably  [**27]  implicated here by disclosure that a complaint has been filed.

In maintaining that the confidentiality provision is justified by a state interest in protecting the privacy of judges against whom complaints have been filed, the Defendant cites Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S. Ct. 2199, 81 L. Ed. 2d 17 (1984). In Rhinehart, the Supreme Court upheld the constitutionality of a protective order which prohibited the defendant in a libel action from revealing information gathered through discovery where the protective order does not prohibit the dissemination of facts gained from sources other than discovery. The instant case may be easily distinguished from Rhinehart. In this case, the Plaintiff seeks to reveal the fact that he has filed a complaint with the JQC. Notably, this information is known to the Plaintiff outside of any participation in a judicial proceeding. The basis for the complaint is information derived in open court, not in the course of the JQC disciplinary process. Thus, this case falls within the principle that where a person "lawfully obtains truthful information about a matter of public significance . . . state officials may not constitutionally  [**28]  punish publication of the information, absent a need to further a state interest of the highest order." Smith v. Daily Mail Publishing Co., 443 U.S. at 103. See also Butterworth, 110 S. Ct. at 1381.

In sum, we find that the JQC has failed to set forth any compelling interests alone or in concert sufficient to justify the application of § 12(d) to prohibit the truthful publication of the simple fact that a complaint has been filed by Plaintiff John Doe with the JQC. Accordingly, it is

ORDERED AND ADJUDGED that Plaintiff's Motion for Summary Judgment is GRANTED. Insofar as Article V, Section 12(d) of the Florida Constitution prohibits complainants from revealing simply the fact that a complaint has been filed with the Judicial Qualification Commission, it is hereby declared unconstitutional as applied to this Plaintiff. It is further

ORDERED AND ADJUDGED that the JQC is enjoined from enforcing the confidential provision of Article V, Section 12(d), insofar as it prohibits the complainant, John Doe, from disclosing the fact that a complaint has been filed with the JQC.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 The provision at issue in Baugh, Section 2.1-37.13 of the Virginia Code provided that:

 
All papers filed with and proceedings before the Commission, . . . including the identification of the subject judge as well as all testimony and other evidence and any transcript thereof made by a reporter, shall be confidential and shall not be divulged, other than to the Commission, by any person who either files a complaint with the Commission, or receives such complaint in an official capacity, or investigates such complaint by a member, employee or agent of the Commission, or participates in any recording or transcription thereof, except that the record of any proceeding filed with the Supreme Court shall lose its confidential character.

J. Allen Grimsley Seeks the Sanctions of Contempt Against John Cole Vodicka and Tim Mellen.  J. Allen Grimsley Also Seeks Costs for Bringing the Contempt Action

Those Who Seek Sanctions Must Be Willing To Accept Sanctions

            Counsel for John Cole Vodicka and Tim Mellen is from the old school of lawyers – the very old school of lawyers – the school of lawyers who really don’t believe in sanctions.  Sorry, but counsel can’t accept the concept of judicially imposed sanctions on the losing litigant.  With this said, there should be some corrective measures taken to assist the indigent people of Sumter County.

            Counsel for John Cole Vodicka and Tim Mellen, after filing the motion to dismiss in this case, called J. Allen Grimsley and, in a very friendly communication, asked that he dismiss his motion for contempt and resolve this dispute without causing counsel for John Cole Vodicka and Tim Mellen the trouble of litigating this matter.  Obviously, this suggestion fell on deaf ears.  The Response is now ready for filing and J. Allen Grimsley apparently likes his chances.

            At nearly the end of a very long and friendly conversation between counsel for John Cole Vodicka and Tim Mellen, and J. Allen Grimsley, counsel asked J. Allen Grimsley if he understood that a fair reading of the motion to dismiss would be that it was accusing him of stealing.  J. Allen Grimsley replied, rather quietly and thoughtfully, that he understood.

            The time had come and gone for J. Allen Grimsley to walk away from this situation where he has bared the teeth of this Court at John Cole Vodicka and Tim Mellen, snookered the State Bar of Georgia and the Indigent Defense Council and improperly taken money from Sumter County and the State of Georgia, all-the-while depriving indigent clients of their constitutional right to an effective lawyer.  Lawyers for indigent persons need to be more than State paid pallbearers.

            In lieu of monetary payments to counsel for John Cole Vodicka and Tim Mellen, and further disciplinary action against J. Allen Grimsley, this Court should allow J. Allen Grimsley the choice of the following options.

1.        J. Allen Grimsley could choose a voluntary suspension from the State Bar of Georgia for six months.

2.        J. Allen Grimsley could agree to place all of the funds he has received for indigent defense since he has practiced law into an account to be administered by the Prison and Jails group for compensation to attorneys representing indigent clients in Sumter County.

3.        J. Allen Grimsley could agree to obtain 200 hours of continuing legal education training in constitutional law and criminal defense before representing any person in any criminal case or before adjudicating any case a judicial officer.

4.        J. Allen Grimsley could agree to audit classes in Constitutional Law, Criminal Law and Trial Practice at nearby Mercer Law School for one Semester.  He should agree to attend school for not less than 30 hours a week.

5.        J. Allen Grimsley could agree to allow counsel suggested by John Cole Vodicka and Tim Mellen to depose him and all persons with relevant information about his conduct as a lawyer and judge and the results would be used by the State Bar of Georgia to determine the appropriate discipline.  Counsel suggested by John Cole Vodicka and Tim Mellen would be compensated by either J. Allen Grimsley or the State Bar of Georgia, which botched this investigation as much as J. Allen Grimsley botches the representation of his court appointed clients.

J. Allen Grimsley, at this point, should be allowed to pick from the above options or expect the ultimate consequences that can be legally obtained.

Conclusion

            It is unfair to sic big dogs on defenseless people.  It is unfair for big dogs to bare their teeth on defenseless people.  John Cole Vodicka and Tim Mellen are not defenseless people because they have the psychological security of being willing, ready and able to pay the price to exercise their right to seek redress from their government and free speech.  Other people who might wish to exercise the First Amendment are defenseless.  First, these other people cannot afford the risk or the consequences.  Second, many cannot afford the cost of legal resources to keep the big dog from chasing them off of their constitutional turf.

            The issue here is, does this Court have the right to extract this price from John Cole Vodicka and Tim Mellen?  The issue here is, does this Court have the right to bare its teeth to all who wish to complain about lawyers and pursue their complaints to their friends and the media?

The issue here is, why do we have a State Bar Disciplinary proceeding that is so sloppy and inadequate that it does not take action against J. Allen Grimsley?  The issue here is, why do we have a State of Georgia and Sumter County paid lawyer that is over-billing and under-serving? Let us suggest that this is because it is easier to flow with the program of inadequate representation than to step out of the crowd and attempt to make changes.

This Court should clearly understand that J. Allen Grimsley is baring the teeth of this Court at John Cole Vodicka and Tim Mellen.  This Court should clearly understand the perception of the public in Sumter County from reading the newspapers is that this Court has large teeth to bare at people who file complaints against lawyers.

The newspapers in Sumter Count conveyed the impression of the large teeth the Court is baring as a precedent to a hefty bite.  As good a person, as dedicated a person, as competent a person as Sherie M. Welch is, counsel for John Cole Vodicka and Tim Mellen would be failing his clients if he did not inform the Court that, correct or not, Sherie M. Welch is reported to have bared the teeth of this Court at John Cole Vodicka and Tim Mellen.

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.

            The proper solution to this problem is not to chew out the persons baring the teeth of this Court.  The proper solution is to place these teeth in a jar and leave them soaking in Pollident dissenfectant.

            We have a serious problem in this State with dispositional fairness and dispositional equality.  The legislature has not assisted the Court in its goal to correct this problem.  This Court has, at times, been just seven votes short of assisting counsel in correcting this problem; however, never in the history of this State have we had a Supreme Court composed of people as committed to curtailing lawyer misconduct and professionalism.  Everyone understands that if this Court used its seven votes to correct the problems that we know exist, there would soon be seven new “of counsel” showcase lawyers in this State.  This Court needs people like John Cole Vodicka and Tim Mellen.  Our society needs people like John Cole Vodicka and Tim Mellen.  We must recognize this need for people who think differently.  We must not saddle these individuals with contempts.

            This case does not have a storybook, happy ending because once the problem with J. Allen Grimsley is resolved, John Cole Vodicka and Tim Mellen will move to another issue that is depriving persons in southwest Georgia from receiving dispositional fairness and dispositional equality in the criminal justice system.  Hopefully, this Court will no longer bare its teeth at John Cole Vodicka and Tim Mellen.  Hopefully this Court will not bare its teeth at persons who are weaker than John Cole Vodicka and Tim Mellen.  Hopefully the Court will not bear its teeth a person who will be silenced because they cannot sustain the hit of a criminal contempt conviction.

            This Court should proclaim, in front of the courthouse in Sumter County, that the teeth that J. Allen Grimsley is picturing are indeed false teeth, with no bite.

            The framers of the United States Constitution had people such as John Cole Vodicka and Tim Mellen in mind when they placed the protections of this wonderful document, our Constitution, between government and the people who are governed.

                               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