Beruflich Dokumente
Kultur Dokumente
STATE OF GEORGIA
JANET D. MCDONALD,
JAMES B. STEGEMAN,
PLAINTIFFS CIVIL ACTION
FILE NO: 07CV11398-6
V
COMES NOW Plaintiffs Janet D. McDonald and James B. Stegeman and file
Plaintiffs’ Brief In Support of Motion To Void This Court’s June 11, 2008 Order
Both Georgia and Federal law are clear that when a Judge is also a defendant, the
Judge must recuse or disqualify themselves. In the case at bar, Judge Becker, the day
after being served with Summons and Complaint,1 dismissed with prejudice Plaintiffs’
complaint against Georgia Power, leaving the counterclaim against them intact.
The dismissal was either the act of retaliation under color of law against Plaintiffs 2
1
Judge Becker was named defendant in US District Court action File No.: 1:08-cv-1981-WSD,
service was perfected June 10, 2008 the day before she signed the Order dismissing with
prejudice Plaintiffs’ complaint against GA Power leaving only the defendant’s counterclaim.
2
Mr. Stegeman is Legally Disabled as recognized by Americans with Disabilities Act and Social
Security Act, thereby is a member of a protected class of person and is afforded extra protections.
State programs which receive Federal funding that should be protecting Mr. Stegeman have been
denied to Mr. Stegeman. Several state and Federal laws have been violated as well. See
for attempting to enforce their Civil and Constitutional Rights;3 or an unfair act of
BRIEF BACKGROUND
After a continuing dispute with Georgia Power, Plaintiffs, one of which is 100%
Federally disabled and receives Supplemental Security Income, filed a verified, prima
facie complaint October 26, 2007. Georgia Power filed a verified answer and
counterclaim December 3, 2007.4 Plaintiffs moved to strike the verified answers and
perjury/false swearing. Plaintiffs moved to stay discovery and all other processes
Attached “Exhibit I”
3
See U.S.C. 42 §12203: “Prohibition against retaliation and coercion” (a) Retaliation No person
shall discriminate against any individual because such individual has opposed any act or practice
made unlawful by this chapter or because such individual made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under this chapter.
(b) Interference, coercion, or intimidation It shall be unlawful to coerce, intimidate, threaten, or
interfere with any individual in the exercise or enjoyment of, or on account of his or her having
exercised or enjoyed, or on account of his or her having aided or encouraged any other individual
in the exercise or enjoyment of, any right granted or protected by this chapter.
(c) Remedies and procedures The remedies and procedures available under sections 12117,
12133, and 12188 of this title shall be available to aggrieved persons for violations of
subsections (a) and (b) of this section, with respect to subchapter I, subchapter II and subchapter
III of this chapter, respectively.
4
Although the docket reflects the answer and counterclaim was filed December 3, 2007 Plaintiff
McDonald called the Court on December 6, 2007 after not receiving an answer and was told by
Judge Becker’s Clerk that no answer had yet been filed. This has been brought up several times
by Plaintiffs, but they cannot prove what they were told on the telephone by the clerk.
5
The docket reflects the filing of Motion to Strike on March 12, 2008, but Postal records show
delivered on March 8, 2008 and since all of Georgia Power’s filings reflect the day received by
the Court, it would be only fair that Plaintiffs were treated equally. This too has been shown to
the Court and ignored.
2
pending Ruling on Motion to Strike6 on March 20, 2008 after being lied to by opposing
Plaintiffs’ Motions went un-addressed by the Court until their case was dismissed with
prejudice although opposing counsel had the Court assisting them, setting hearings, and
Although Plaintiffs repeatedly requested assistance from the Court for the
numerous problems between Plaintiffs and attorney Watt, the Court refused to address the
problems. Plaintiffs more than once pointed out discrepancies, and manipulations within
After it became apparent that this Court was going to continually aid Georgia
Power and their attorneys and that Plaintiffs’ Civil and Constitutional Rights under color
of law would continue to be violated, Plaintiffs filed the action in US District Court. That
Court dismissed under Younger and Plaintiff Stegeman Appealed. The Appeal is
currently pending in the U.S. Court of Appeals for the Eleventh Circuit.
VOID JUDGMENT
Both Georgia and Federal law are clear that when a Judge is a defendant, the
Judge has a personal interest and must recuse or disqualify themselves. In the case at bar,
Judge Becker, the day after being named a defendant, dismissed with prejudice only
Plaintiffs’ complaint, leaving the counterclaim against them intact. The dismissal was
either the act of retaliation under color of law against Plaintiffs for attempting to enforce
3
discriminatory/ bias/prejudice, all of such instances calls for mandatory
disqualification/recusal. The Ruling is without authority and effect and is not merely
There are several grounds for which a ruling or judgment is void, i.e.: fraud in the
“A disqualified judge can take no judicial action in the case and any
attempt at such action is a mere nullity.” Garland v. State of Ga., 110
Ga. App. 756 (140 SE2d 46) (1964).
4
Model Code of Judicial Conduct, Canon 2, R. 2.11(A) (2007).
It has long been held that a Judge which is a defendant, must disqualify/recuse
themselves.
“The judge against whom such an action is brought, … is of course
disqualified from hearing the case…. See Code 24-2623.” Hamby v.
Pope, 27245 (229 Ga. 339) (191 SE2d 53) (1972).
Further a Judge who has been named a defendant loses neutrality, which “helps
guarantee that life, liberty and/or property will not be taken” in retaliation.
“The neutrality requirement helps to guarantee that life, liberty, or
property will not taken on the basis of an erroneous or distorted
conception of the facts of the law.” Marshall v. Jerrico, Inc. 466
U.S. 238, 242, 100 S. Ct. 1610, 64 L. 2d 182 (1980).
If the Due Process Clause requires recusal only when a party could prove actual
bias arising from personal animus in the judge’s heart or cold cash in the judge’s pocket,
then the rights of parties to a fair and impartial judge would be imperiled. Probabilities
circumstantial evidence, which is sometimes the only evidence available on the issue
Based on the findings “that persons with disabilities have been faced with
7
See Randall T. Shepard, Campaign Speech: Restraint and Liberty in Judicial Ethics, 9 Geo. J.
Legal Ethics 1059, 1087 (1996)
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that are beyond the control of such individuals”, Congress “invoke[d] the sweep of
In Lassiter v. Department Social Serv., 452 U.S. 18, 24 (1981) it was held: “The
Due Process Clause imposes an affirmative obligation upon States to take such measures
as are necessary to ensure that individuals, including those with disabilities, are not
fairness.’” The Due Process Clause requires States to afford “individuals with
disabilities, fair proceedings”, and when “denied access to benefits or programs created
The United States Supreme Court in Tennessee v. Lane, 541 U.S. 509 (2004) that
“Title II of the ADA validly abrogates States’ Eleventh Amendment Immunity as applied
to the context of access to judicial services.” That decision was also supported in United
States v. Georgia, 126 S. Ct. 877, (2006). The Court in Lane found that Title II enforces
rights under the Equal Protection Clause as well as an array of rights subject to
heightened constitutional scrutiny under the Due Process Clause” Lane 541 U.S. at 522-
Rulings made in violation of Due Process are void. Plaintiffs in this case
attempted to bring to the Judge’s attention numerous times unfair, manipulative treatment
by opposition’s attorneys only to have the treatment continue and get worse. A disabled
individual was forced into pro se litigation due to the State of Georgia’s failure to protect
8
42 U.S.C. §12101(b)(4).
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him and his property, this Court had a duty to ensure fairness. This Court failed, or
refused to ensure that fairness and worked to see that the case against Georgia Power was
dismissed.
Marshall v. Jerrico, 100 S. Ct. 1610, 446 U.S. 238 (U.S. 04/28/1980);
64 L. Ed.2d 182, (1980); at [21] “The Due Process Clause entitles a
person to an impartial and disinterested tribunal in both civil and
criminal cases. This requirement of neutrality in adjudicative
proceedings safeguards the two central concerns of procedural due
process, the prevention of unjustified or mistaken deprivations and the
promotion of participation and dialogue by affected individuals in the
decisionmaking process. See Carey v. Piphus, 435 U.S. 247, 259-262,
266-267 (1978).”
Plaintiffs have been discriminated against and treated with unfairness, bias and
prejudice by this Court and the opposing counsel. An uninterested, lay person, would
Further it is the obligation of every Judge in Georgia to honor, abide by, and
uphold not only the Constitution and laws of the State of Georgia, but they are bound by
stated “occurs when a disabled individual is treated differently than a non-disabled or less
disabled individual. 42 U.S.C. §12112(b).” Nadler v. Harvey, No. 06-12692 (11th Cir.
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2007) before Edmondson, Hull, and Forrester.
Further, a pro se litigant, and a disabled pro se litigant, have not been received the
treatment that staire decisis and past case precedent mandates they receive. Not once has
the court liberally construed their pleadings, held them to a less stringent standard than
opposing counsel.
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The Due Process Clause requires notice and opportunity to be heard. By this
Court’s own Order Dismissing Plaintiffs’ case with Prejudice states “On May 27, 2008,
adequate notice and actual knowledge…” To date, no party to the case in Superior Court,
or the case in U.S. District Court has produced evidence that Plaintiffs (1) had “adequate
Notice” or had (2) “actual knowledge” of a hearing for “discovery disputes”; (3) a
Motion Calendar showing Plaintiffs or Defendants listed on the Calendar for any
hearings; or (4) a showing that the Docket Report reflected in the “scheduled events” any
such hearings. Plaintiffs did request that the Docket Report and Motion Calendar to
reflect a hearing if a hearing was scheduled. Plaintiffs’ Motions were not addressed until
OATH OF OFFICE
The U.S. Supreme Court has stated that “No state legislator or executive or
judicial officer can war against the Constitution without violating his undertaking to
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support if.” Cooper v. Aaron, 358 U.S. 1, 78 S. Ct. 1401 (1958). Any judge who does
not comply with his oath to the Constitution of the United States, wars against that
Constitution and engages in violation of the Supreme Law of the Land. If a judge does
not fully comply with the Constitution, then his orders are void, In re Sawyer, 124 U.S.
200 (1888), he is without jurisdiction, and he/she has engaged in an act or acts of treason.
U.S. v. Will, 449 U.S. 200, 216, 101 S. Ct. 471, 66 Ed.2d 392, 406 (1980); Cohens v.
"No man in this country is so high that he is above the law. No officer
of the law may set that law at defiance with impunity. All the officers
of the government from the highest to the lowest, are creatures of the
law, and are bound to obey it." Butz v. Economou, 98 S.Ct. 2894
(1978); United States v. Lee, 106 U.S. at 220, 1 S.Ct. at 261 (1882).
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rebellion. 2. Open resistance or opposition to an authority or
tradition. Black’s Law Dictionary, 7th Ed. West Group, pg. 1273
Violation of Oath of Office is not only grounds for void judgment, but more
CONCLUSION
Plaintiffs in this matter, having shown sufficient grounds to have this Court’s
Order Dismissing their Complaint with Prejudice set aside as a void judgment, Move this
Court to grant their Motion. Plaintiffs further Move this Court to disqualify/recuse Judge
Becker so that Plaintiffs may be able to have a fair and impartial tribunal, or a better
alternative is to have this case transferred out of Stone Mountain Judicial Circuit to a
Court which treats disabled and pro se litigants with dignity and respect.
By: ___________________________
JANET D. MCDONALD, Pro Se
821 Sheppard Rd
Stone Mountain, GA 30083
(404) 300-9782
By: ___________________________
JAMES B. STEGEMAN, Pro Se
821 Sheppard Rd
Stone Mountain, GA 30083
(404) 300-9782
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JANET D. MCDONALD,
JAMES B. STEGEMAN, CIVIL ACTION
PLAINTIFFS
FILE NO: 07CV11398-6
v
CERTIFICATE OF SERVICE
I hereby Certify that I have this 24th day of February, 2009 served upon
Defendants a true and correct copy of Motion To Void This Court’s June 11, 2008
Order Dismissing Plaintiffs’ Case With Prejudice by depositing with U.S.P.S. First class
mail, proper postage affixed and mailed to Defendant’s counsel on record as follows:
Troutman Sanders, LLP
Brian P. Watt
5200 Bank of America Plaza
600 Peachtree Street
Atlanta, GA 30308-2216
By: ______________________________
JANET D. MCDONALD, Pro Se
By: _______________________________
JAMES B. STEGEMAN, Pro Se
821 Sheppard Rd
Stone Mountain, GA 30083
(770) 879-8737
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