IN THE SUPERIOR COURT OF DEKALB COUNTYSTATE OF GEORGIA

JANET D. MCDONALD,JAMES B. STEGEMAN,

PLAINTIFFS

V

GEORGIA POWER COMPANY, et., al.,DEFENDANTS

CIVIL ACTION

FILE NO: 07CV11398-6

PLAINTIFFS’ BRIEF IN SUPPORT OF MOTION TO VOID THIS COURT’S JUNE 11, 2008 ORDER

DISMISSING PLAINTIFFS’ CASE WITH PREJUDICE ____________________________________________________________________________

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

Dismissing Plaintiffs’ Case With Prejudice.

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 Plaintiffs2

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

for attempting to enforce their Civil and Constitutional Rights;3 or an unfair act of

extreme, unreasonable discriminatory/bias/prejudice. The Ruling is without authority

and effect and is not merely voidable, but void.

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

counterclaim on March 8, 20085 due to verification and counterclaim containing

perjury/false swearing. Plaintiffs moved to stay discovery and all other processes

as well. See 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.

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pending Ruling on Motion to Strike6 on March 20, 2008 after being lied to by opposing

counsel and after opposing counsel’s orchestration of a false discovery dispute.

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

making rulings in their favor.

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 the Court system, the Court ignored all of Plaintiffs’ requests.

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

their Civil and Constitutional Rights; or an unfair act of extreme, unreasonable 6 The defendants never responded to Motion to Strike, they moved for a continuance which was NEVER GRANTED.

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discriminatory/ bias/prejudice, all of such instances calls for mandatory

disqualification/recusal. The Ruling is without authority and effect and is not merely

voidable, but void.

void judgment. A judgment that has no legal force or effect, the invalidity of which may be asserted by any party whose rights are affected at any time and any place, whether directly or collaterally * From its inception, a void judgment continues to be absolutely null. It is incapable of being confirmed in any manner or to any degree. Black’s Law Dictionary West Group, 7th Ed. pg. 848.

There are several grounds for which a ruling or judgment is void, i.e.: fraud in the

procurement of a Ruling (which is applicable here); Judge is a defendant thereby

disqualified to act (which is applicable here); non amendable defect:

“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).

"The judgment of a court … void for any other cause, is a mere nullity, and may be so held in any court when it becomes material to the interest of the parties to consider it." Miller v. Miller, et., al., 38752. (104 Ga. App. 224) (121 SE2d 340) (1961)

JUDGE’S DUTY TO DISQUALIFY/RECUSE

Georgia’s Code of Judicial Conduct Canon 3 C. (1) (a) states:

"Judges should disqualify themselves in proceedings in which their impartiality might reasonably be questioned, including but not limited to instance where: . . . the judge has a personal bias or prejudice concerning a party or a party's lawyer . . . ."

"We interpret the word 'should' to mean 'shall' in the context of this requirement." Savage v. Savage, 234 Ga. 853, 856 (218 SE2d 568) (1975).

The American Bar Association’s Model Rule of Judicial Conduct states:

“A judge shall disqualify himself of herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” ABA

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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

of unfairness, likelihood of bias, and unacceptable perceptions are at the heart of

circumstantial evidence, which is sometimes the only evidence available on the issue

whether a judge is constitutionally required to disqualify.7

Violations of the Due Process Clause also results in voids judgments.

I. THE DUE PROCESS CLAUSE

Based on the findings “that persons with disabilities have been faced with

restrictions, limitations, subjected to a history of purposeful unequal treatment, and

relegated to a position of political powerlessness in our society, based on characteristics

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

congressional authority, including the power to enforce the fourteenth amendment,” to

enact the ADA.8

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

deprived of their life, liberty, or property without procedures affording ‘fundamental

fairness.’” The Due Process Clause requires States to afford “individuals with

disabilities, fair proceedings”, and when “denied access to benefits or programs created

by state regulations and policies”.

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-

523; accord Constantine, 411 F.3d at 486-487.

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

question the partiality and neutrality of this Court.

“Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness.” In re Murchinson, 349 U.S. 133, 136 (1955).

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

the laws and Constitution of The United States as well.

"State courts, like federal courts, have a constitutional obligation to safeguard personal liberties and to uphold federal law." Stone v Powell, 428 US 465, 483 n. 35, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976).

Speaking of discrimination against disabled individuals, the Eleventh Circuit has

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.

“In considering appellant's enumerations of error, we are guided by the general rule that "[p]ro se pleadings are held to less stringent standards than pleadings that are drafted by lawyers" ( Thompson v. Long, 201 Ga. App. 480, 481 (1) (411 SE2d 322)), and by the statutory provision that "[w]here it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing . . . what errors are sought to be asserted upon appeal, the appeal shall be considered in accordance therewith notwithstanding . . . that the enumeration of errors fails to enumerate clearly the errors sought to be reviewed." OCGA 5-6-48 (f).” Cotton v. Bank South, N.A., A93A2579 (212 Ga. App. 1) (440 SE2d 704) (1994)

“holding pro se petition cannot be held to same standard as pleadings drafted by attorneys” See Boag v. MacDougall, 454 U.S. 364, 102 S. Ct. 700, 70 L.Ed.2d 551 (1982); Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); McDowell v. Delaware State Police, 88 F.3d 188, 189 (3rd Cir. 1996); United States v. Day, 969 F.2d 39, 42 (3rd Cir. 1992)

“A court faced with a motion to dismiss a pro se complaint must read the complaint’s allegations expansively,” Haines v. Kerner 404 U.S. 519, 520-21, S. Ct. 594, 596, 60 L.Ed. 2d 652 (1972)

“Court has a special obligation to construe pro se litigant’s pleadings liberally” Polling v. Hovnanian Enterprises, 99 F. Supp. 2d 502, 506-07 (D.N.J. 2000).

“We hold pro se pleadings to a less stringent standard than pleadings drafted by attorneys and construe them liberally.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998)

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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,

the Court conducted a hearing to resolve outstanding discovery disputes…”; “Despite

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

June 11, 2008 when their claims were dismissed.

OATH OF OFFICE

In Georgia as elsewhere, Judges take an Oath of Office, swearing to support the

Constitution of the United States as well as the State of Georgia Constitution:

“I swear that I will administer justice without respect to person and do equal rights to the poor and the rich and that I will faithfully and impartially discharge and perform all the duties incumbent on me as judge of the superior courts of this state, according to the best of my ability and understanding, and agreeably to the laws and Constitution of this state and the Constitution of the United States. So help me God.” O.C.G.A. § 15-6-6; Note: The federal constitution requires that the judicial officers of the state be bound by oath or affirmation to support the federal constitution. See U.S. Const., Art. 6, § 3.

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.

Virginia, 19 U.S. (6 Wheat) 264, 404, 5 L.Ed 257 (1821).

"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).

The United States Constitution:

Article VI. Clause 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Country notwithstanding.

Clause 3: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution…

Amendment XIVSection 3.: No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member or Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given any aid or comfort to the enemies thereof.

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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

importantly is grounds for impeachment, forever barring holding of Judicial Office.

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.

Submitted this 24th day of February, 2009

By: ___________________________JANET D. MCDONALD, Pro Se

821 Sheppard RdStone Mountain, GA 30083

(404) 300-9782

By: ___________________________JAMES B. STEGEMAN, Pro Se

821 Sheppard RdStone Mountain, GA 30083

(404) 300-9782

THE SUPERIOR COURT OF DEKALB COUNTYSTATE OF GEORGIA

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JANET D. MCDONALD,JAMES B. STEGEMAN,

PLAINTIFFS

v

GEORGIA POWER CO., et., al., DEFENDANTS

CIVIL ACTION

FILE NO: 07CV11398-6

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, LLPBrian P. Watt5200 Bank of America Plaza600 Peachtree Street Atlanta, GA 30308-2216

By: ______________________________JANET D. MCDONALD, Pro Se

By: _______________________________JAMES B. STEGEMAN, Pro Se

821 Sheppard RdStone Mountain, GA 30083

(770) 879-8737

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