Honorable Carla Wong McMillian, Court of Appeals of Georgia
EXPERIENCE
JUDGE, COURT OF APPEALS OF GEORGIA Atlanta, Georgia • Appointed by Governor Nathan Deal • Sworn in on January 24, 2013; Elected May 20, 2014 • First Asian-American elected to statewide office in the State of Georgia
JUDGE, STATE COURT OF FAYETTE COUNTY, GEORGIA Fayetteville, Georgia • Appointed by Governor Sonny Perdue • Sworn in on October 4, 2010; Elected July 31, 2012 in a contested race • First Asian-American Woman Elected Judge in the State of Georgia
SUTHERLAND ASBILL & BRENNAN LLP Atlanta, Georgia Partner (2007-2010), Associate (1999-2006) . Areas of Practice: Complex Business Litigation; Dealer and Franchise Litigation; Professional Malpractice Defense; Administrative Law . Handled numerous appeals, trials, and administrative hearings . Argued before the Eleventh Circuit, Third Circuit, the Georgia Supreme Court, the Georgia Court of Appeals, and the Louisiana Court of Appeals
U.S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA Atlanta, Georgia Law Clerk to the Hon. William C. O’Kelley, 1998-99
EDUCATION
UNIVERSITY OF GEORGIA SCHOOL OF LAW Athens, Georgia Juris Doctor, 1998, summa cum laude Order of the Coif Editorial Board, Georgia Law Review
DUKE UNIVERSITY Durham, N.C. Bachelor of Arts in History and Bachelor of Arts in Economics, 1995, magna cum laude Phi Beta Kappa Duke Review, 1994-95 Senior Editor; 1992-94 Associate Publisher
SELECTED SERVICE ACTIVITIES
• Board of Advisors, Atlanta Chapter of the Federalist Society for Law and Public Policy Studies • Board of Trustees, Landmark Christian School • Board of Directors, Georgia Asian Pacific American Bar Association • Dogwood Church, Tyrone, Georgia Judicial Nominating Commission State of Georgia 500 14th Street, N.W. Atlanta, Georgia 30318 Tel: 678-701-9381 Brian P. Kemp Governor
This questionnaire is submitted in connection with a vacancy on the Supreme Court of Georgia
1. Please provide your full name. Include any former names that you have used.
Carla Wong McMillian. My maiden name was Carla Renee Wong.
2. Please provide your current office and home addresses, including office, home, and cellular telephone numbers and email addresses.
Office: Court of Appeals of Georgia Nathan Deal Judicial Center 330 Capitol Avenue S.E. Atlanta, Georgia 30334 (404) 656-3455 [email protected]
3. Please provide the date and place of your birth.
4. If you are a naturalized citizen, please give the date and place of naturalization.
Not applicable
5. Please indicate your marital status and if married, the name of your spouse. If you have any children, please provide the names and ages of your children. Judicial Nominating Commission Applicant Questionnaire
6. Please identify any service in the United States Military, including the periods of your military service, the branch in which you served, your rank or rate, and the type of discharge you received if you are no longer active.
None
7. Please list in reverse chronological order each college and law school you attended, including the dates of attendance, the degree awarded, and your reason for leaving each school if no degree from that institution was awarded.
University of Georgia School of Law, 1995-98, J.D.
Duke University, 1991-95, A.B. in History and Economics
8. Please list all courts in which you have been admitted to practice (excluding pro hac vice admissions), including the dates of admission for each and any lapse in membership. Please explain the reason for any lapse in membership. Give the same information for administrative bodies having special admission requirements.
Superior Courts of the State of Georgia, December 14, 1998
Court of Appeals of Georgia, November 18, 2000
Supreme Court of Georgia, February 21, 2000
United States District Court for the Northern District of Georgia, January 6, 2000
Eleventh Circuit Court of Appeals, February 8, 2000
Second Circuit Court of Appeals, September 6, 2007
Third Circuit Court of Appeals, September 6, 2002
Fourth Circuit Court of Appeals, December 14, 2000
9. Are you actively engaged in the practice of law at the present time? If you are connected with a law firm, a corporate law department or a governmental agency, please state its name and indicate the nature and duration of your relationship.
No. I serve as a judge on the Court of Appeals of Georgia. Prior to my appointment in 2013, I served as the State Court Judge of Fayette County. From 1999 to 2010, I was actively engaged in the practice of law as an associate and then as a partner with Sutherland Asbill & Brennan LLP (now Eversheds Sutherland).
10. What is the general character of your practice? Indicate the character of your typical clients and mention any legal specialties which you possess. If the nature of your practice has been substantially different at any time in the past, give the details,
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including the character of such and the periods involved.
I joined the litigation group of Sutherland Asbill & Brennan, LLP in October 1999, and was elected to the partnership in 2007. I remained with the firm until just prior to my appointment to the State Court of Fayette County in October 2010.
At Sutherland, my law practice focused on the three areas: (1) franchise law, specifically dealer litigation and corporate counseling; (2) accountants’ and professional liability defense, and (3) other complex business litigation. I have represented automobile and motorcycle manufacturers nationwide in various state courts, federal courts, and administrative bodies in disputes over dealer terminations, relocations, add points, warranty reimbursement, and vicarious liability for dealer actions. I have also represented an automotive manufacturer in appeals from a product liability action. Outside of the franchise context, I have handled a range of business matters, including professional malpractice claims, tax litigation against the Georgia Department of Revenue and the Internal Revenue Service, and allegations of insurance company fraud under the Racketeer Influenced and Corrupt Organizations (RICO) Act. I have also represented a software development company in a trade secret misappropriation and breach of contract action against a former business partner in Austin, Texas.
Finally, pro bono matters were a very important part of my private practice. Besides allowing me to help those in need, these cases provided the opportunity to tackle issues that I did not regularly face in my practice. One highlight includes representing a single mother who was seeking full custody of her child from her child’s allegedly abusive father. This particular representation came from a referral from the predecessor organization to the Real Life Center, a non-profit organization serving persons in need in Fayette County. Other pro bono cases in which I have been involved include representing a criminal defendant in oral argument before the Eleventh Circuit over a denial of the return of certain funds and firearms under Federal Rule of Criminal Procedure 41(g). I was also involved in Sutherland’s representation of a former death row inmate in his habeas petitions.
11. If, in the past, you have practiced in other localities or have been connected with other law firms, corporate law departments or governmental agencies, please give the particulars, including the locations, the names of the firms, corporate law departments or agencies and your relationship thereto, and the relevant dates. Also indicate any period in the past during which you practiced alone.
From June 1998 through August 1999, I served as a law clerk for the Honorable William C. O’Kelley in the Northern District of Georgia.
In the summer of 1997, I worked as a summer associate at Robinson Bradshaw & Hinson in Charlotte, North Carolina and Fulbright & Jaworski in Houston, Texas.
In the summer of 1996, I worked as a summer associate at Fulcher Hagler Reed Hanks & Harper (now Fulcher Hagler LLP) in Augusta, Georgia.
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12. State chronologically any judicial offices you have held, including positions as an administrative law judge, state whether such position was elected or appointed, state the length of service in each position, give a description of the jurisdiction of each such court and describe the scope of your responsibilities in this court.
State Court of Fayette County – I was appointed by Governor Sonny Perdue to the State Court of Fayette County, taking office on October 4, 2010. On July 31, 2012, I was elected in a contested race with 66% of the vote. I served on the State Court for approximately 27 months.
As State Court Judge, I presided over civil cases without regard to the amount in controversy, except for those cases in the exclusive jurisdiction of the Superior Court, and criminal misdemeanors. As the sole State Court Judge in Fayette County, I disposed of over 7000 cases per year and handled all administrative matters related to the county government.
Court of Appeals of Georgia – I was appointed by Governor Nathan Deal to the Court of Appeals of Georgia, taking office on January 24, 2013, and am presently in that position. I was elected in an uncontested election in 2014.
The Court of Appeals has statewide appellate jurisdiction of all cases except those involving constitutional questions, election contests, habeas corpus, and all cases in which a sentence of death was imposed or could be imposed.
Since June 2019, I have served as Vice Chief and Presiding Judge. As Vice Chief, I assist the Chief Judge in his discretion. As Presiding Judge, I handle scheduling for oral argument and preside at oral argument. I also serve on the Court’s Executive Council.
13. Have you ever held public office, other than judicial office, or have you ever been a candidate for such an office? If so, give the details, including the offices involved, whether elected or appointed, and the length of your service.
No
14. Have you ever been an unsuccessful candidate for election to any office? For each election, state the office(s) sought, the date(s), the number of candidates involved, and the percentage of votes you obtained.
No
15. Have you regularly appeared in court during the past five (5) years?
No. However, I regularly appeared in court prior to October 2010 when I was appointed to the State Court.
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(a) What percentage of your appearances in the last five years were in:
(i) Federal Courts (list all courts): None in the last five years. Approximately 75% prior to October 2010, including:
Third Circuit Court of Appeals
Second Circuit Court of Appeals
Eleventh Circuit Court of Appeals
United States District Court for the Northern District of Georgia
United States District Court for the Western District of Texas
United States District Court for the District of New Jersey
United States District Court for the District of Massachusetts
United States District Court for the Eastern District of New York
United States District Court for the Western District of New York
United States District Court for the Central District of California
United States District Court for the Southern District of West Virginia
United States Bankruptcy Court for the Eastern District of New York
(ii) State Courts (list all courts): I have not appeared in any state court since October 2010 as an attorney, although as a judge I have only served in state courts. Prior to October 2010, approximately 25% of my practice was in state courts, including:
Supreme Court of Georgia
Court of Appeals of Georgia
Superior Court of Gwinnett County
Superior Court of Fulton County
Superior Court of Ware County
Superior Court of Fayette County
State Court of DeKalb County
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(iii) Other courts (please list all states other than Georgia): None in the last five years; small % prior to October 2010, including:
New York, Supreme Court, Nassau County
New York, Second Department, Appellate Division
Maine Supreme Judicial Court
Court of Common Pleas, Pennsylvania
Louisiana Court of Appeals
Court of Common Pleas, South Carolina
Circuit Court, Pinellas County, Florida
(b) What percentage of your court appearances in the last five years were:
(i) Civil? Approximately 98% prior to October 2010
(ii) Criminal? Approximately 2% prior to October 2010
(c) What percentage of your trials in the last five (5) years were:
(i) Jury? As a State Court Judge, approximately half of the trials I presided over were jury trials.
(ii) Non-jury? As a State Court Judge, approximately half of the trials I presided over were non-jury trials.
(d) State the approximate number of cases you have tried to conclusion in courts of record during each of the past five (5) years, indicating whether you were sole, associate, or chief counsel.
From October 2010 to January 2013, I presided over dozens of civil and criminal trials in Fayette County State Court. That State Court has six terms per year and each term includes a civil jury trial calendar, criminal jury trial calendar, civil bench trial calendar, and criminal bench trial calendar.
In 2010, I tried Myriad Development, Inc. v. Alltech, Inc. in the United States District Court for the Western District of Texas to verdict as second chair.
(e) Describe five (5) of the more significant litigated matters which you have handled.
Prior to October 2010, five of the more significant litigated matters which I
6 Judicial Nominating Commission Applicant Questionnaire handled in my private practice were:
Clemente v. Metro Dodge et al; Jackson v. Metro Dodge et al; Warnell v. Metro Dodge et al; Wages v. Metro Dodge et al; Davis v. Metro Dodge et al: In these five related cases brought in the Superior Court of Gwinnett County, consumers alleged that Chrysler was responsible for a defunct dealer’s failure to pay off loans on trade-in vehicles. Their claims ranged from common law fraud and conversion to violations of the Georgia Racketeer Influenced and Corrupt Organizations Act. Although five plaintiffs were involved in these cases, the Georgia Office of Consumer Affairs had identified approximately 40 other customers who had also experienced similar issues with the dealer. After extensive factual and expert discovery and motion practice, which resulted in the exclusion of the plaintiffs’ expert, four separate trials were set for August 2007. On the morning of the first trial, I successfully moved for reconsideration of the motion for summary judgment and for a certificate of immediate review, both of which the court had denied just several weeks before. The Georgia Court of Appeals granted permission to the parties to proceed with the interlocutory appeals, granted oral argument (which I argued), and unequivocally held that the manufacturer was not vicariously liable for the dealer’s conduct. This was the first time that the Court of Appeals had addressed Georgia agency law in the context of a motor vehicle manufacturer/dealer relationship and the Georgia Motor Vehicle Franchise Practices Act. I also successfully opposed plaintiffs’ petition for certiorari to the Georgia Supreme Court.
Tri-County Motors, Inc. v. American Suzuki Motor Corp.: In this case brought in 2004 in federal court in Brooklyn, New York, the potential purchaser of a dealership claimed that Suzuki improperly denied its application to purchase a Long Island dealership, asserting breach of contract, tortious interference with contract, and violations of the New York Motor Vehicle Dealer Act. The plaintiff sought millions in lost profit damages. After protracted discovery in which plaintiff raised issues regarding Suzuki’s production of electronic documents, both sides moved for summary judgment and plaintiff moved for sanctions. I handled the discovery, developed the damages and industry experts, took and defended the expert depositions, and briefed the summary judgment and sanctions motions. In July 2007, the Court granted Suzuki’s summary judgment motion in full, dismissing all claims, and denied plaintiff’s motion for sanctions. I played a significant role in drafting the appellee’s briefs to the Second Circuit. The Second Circuit affirmed.
Aspen Ford et al v. Ford Motor Co. -- Fifteen dealers in New York sued Ford in federal court for additional warranty reimbursement under the New York Motor Vehicle Dealer Act and under the dealer agreements. I drafted the motion to dismiss and other pleadings, handled the protracted factual discovery and depositions, worked extensively with the damages expert, and played a significant role in drafting the summary judgment motion. I also
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argued the motion for summary judgment. Given the number of plaintiffs, I was involved in the strategy to craft a test case in order to efficiently bring the case to judgment, including selecting the test case dealers. Ford prevailed on summary judgment against the two test case dealers, which eventually resulted in the voluntary dismissal with prejudice by the other dealers.
Security Life Insurance Co. v. Clark – Filed in the Superior Court of Early County in 1994 and tried in 1996, this case resulted in ten appellate decisions. Plaintiffs had asserted fraud and violations of the Georgia Racketeer Influenced and Corrupt Organizations Act based on an insurance agent’s forgery on the insurance application and the subsequent denial of coverage. I played an active role in developing strategy for the later rounds of appeals and handled the appellate briefing, which led to a $10 million reduction in the multi-million dollar verdict and striking of pre-judgment interest. I also handled several motions on remand in the trial court.
Myriad Development, Inc. v. Alltech, Inc. – I represented Myriad Development, Inc. a software development company, against a former business partner in federal court in Austin, Texas. Myriad asserted that Alltech had misappropriated trade secrets from Myriad’s proprietary Risk Manager system (a fully automated inspection management software system) and that Alltech had breached license agreements and another contract. Alltech asserted counterclaims for breach of the same contracts and conversion, seeking amounts in excess of $25 million. I handled much of the discovery, including the production of thousands of electronic documents, and worked extensively with the damages expert and defended his deposition. I also was heavily involved in drafting and responding to pre-trial motions, including Daubert motions, summary judgment motions, and over 20 motions in limine filed by both sides. In March 2010, the case was tried to a jury with Myriad prevailing on its trade secret misappropriation and breach of contract claims and Alltech taking nothing. I second chaired the trial.
(f) Please list the names and contact information of five (5) attorneys who have appeared as opposing counsel in litigated matters you have handled which involved a bench or jury trial, or a contested hearing before a judicial officer.
William S. Stone
Hardy Gregory
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James E. Butler, Jr.
Byron Attridge
Clifford E. Hardwick IV
(g) State with reasonable detail your experience in adversary proceedings before administrative boards or commissions during the past five years.
I have had no experience before administrative boards or commissions within the last five years. However, within the last five years of private practice, I appeared before the following administrative boards or commissions in Georgia:
Georgia Office of State Administrative Hearings – I handled several matters before the Office of State Administrative Hearings, including a case brought by a motor vehicle dealer against a distributor for breach of a dealer agreement and violations of the Georgia Motor Vehicle Franchise Practices Act. On behalf of the distributor, we successfully moved to compel arbitration through a separate action brought in Fulton County Superior Court. Also, I have handled a matter before OSAH brought by a food processor that challenged a tax assessment notice issued by the Georgia Department of Revenue. After I deposed the revenue agent, the Department of Revenue voluntarily withdrew the notice of assessment.
Georgia Department of Revenue – I represented DaimlerChrysler Motors Company, LLC in a petition for agency review of an administrative law judge’s decision, finding that Chrysler properly terminated a dealer agreement with an Atlanta area dealer. I successfully argued that the administrative law judge’s decision was final under the Georgia Department of Revenue’s regulations and that the petitioner should have filed a petition for judicial
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review under O.C.G.A. § 50-13-19.
16. Summarize your experience in court prior to the last five (5) years. If during any prior period you appeared in court with greater frequency than during the last five (5) years, indicate the periods during which this was so and give for such prior periods the same data which was requested in item 15 above.
My practice at Sutherland prior to my last five years of practice was similar to what was described above and was a time in which I was developing expertise in franchise and dealer litigation and accountants’ professional liability cases. These cases include:
Perpetual Bank v. KPMG Peat Marwick LLP, No. 99-CP-04-849, Court of Common Pleas, County of Anderson, South Carolina
O’Halloran v. KPMG Peat Marwick LLP, No. 00-2339 CI-8, Circuit Court of Pinellas County, Florida
Barden v. Ford Motor Co., No 97-947, United States District Court for the Western District of Pennsylvania
In addition, I represented several telecommunications companies in connection with fees charged for calls made to internet service providers under the federal Telecommunications Act of 1996. Reported cases include:
Bellsouth Telecommunications, Inc. v. MCImetro Access Transmission Services, Inc., 278 F.3d 1223 (11th Cir. 2002).
Bellsouth Telecommunications, Inc. v. MCImetro Access Transmission Services, Inc., 297 F.3d 1276 (11th Cir. 2002).
BellSouth Telecommunications, Inc. v. MCImetro Access Transmission Services, Inc., 317 F.3d 1270 (11th Cir. 2003).
As a law clerk for Judge O’Kelley from 1998 to 1999, I observed a number of jury trials and hearings in the Atlanta and Gainesville Divisions of the Northern District of Georgia. Also, as a Senior District Court Judge, Judge O’Kelley regularly visited other courts. During my tenure, he handled a criminal calendar for the United States District Court for the Middle District of Alabama in Montgomery, Alabama. As the law clerk assigned to those cases, I observed pleas, motions hearings, and trials, as well as researched issues and otherwise supported Judge O’Kelley.
Also, during my tenure, Judge Kelley sat as a visiting judge on the Eleventh Circuit Court of Appeals in Jacksonville, Florida. Again, I was the law clerk assigned to these cases and spent several months reviewing the records, working with Judge O’Kelley to prepare for oral argument, and aiding Judge O’Kelley in drafting the opinions. I was able to observe the oral argument for these cases.
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In addition, as a law clerk, one of the more challenging cases that I worked on was a habeas petition brought by a defendant who was on death row. I aided Judge O’Kelley in reviewing the record, researching the issues raised in the habeas petition, and drafting the order denying the habeas petition.
17. Summarize your experience in adversary proceedings before administrative boards or commissions prior to the last five (5) years.
Representative matters that I handled prior to my last five years of private practice include:
Maine Motor Vehicle Franchise Board – In 2003, the Maine legislature formed a Motor Vehicle Franchise Board to hear protests by Maine dealers under the Dealer Act. At the time, the Board was comprised of a lawyer-chair, dealer representatives, a manufacturer representative, and a member of the public. I represented Ford Motor Company in the first protest brought to the Board, which went to trial in 2005. In addition to formulating a strategy to defend the claims substantively, a major challenge with handling this protest was working through the newly drafted procedural and evidentiary rules that had never been tested.
Louisiana Motor Vehicle Commission -- I have handled several matters before the Louisiana Motor Vehicle Commission, including Marler Ford, Inc. v. Ford Motor Company, which was tried before a special non-dealer panel in 2003. Marler, a dealer in Alexandria, Louisiana, had filed a protest against Ford alleging under- reimbursement of warranty claims under the dealer agreement and Louisiana Motor Vehicle Commission Law. After trial, the LMVC denied Marler’s claims in full, and Marler appealed to the Louisiana trial court and to the Louisiana Court of Appeals and applied for writ of certiorari to the Louisiana Supreme Court. Ford prevailed on all claims on appeal and successfully opposed the petition for certiorari. I took the discovery, developed the experts, second chaired the trial and handled the appellate briefing. I also orally argued before the Louisiana Court of Appeals. As a result of Ford’s complete win in the LMVC action, the dealer voluntarily dismissed a separate putative class action on behalf of all Louisiana Ford dealers, which had been filed in federal court.
I have also represented the Fulton County School District in a challenge by a school resource officer to her termination, which was brought before the Fulton County Board of Education.
18. The following questions (18(a) – 18(h)) apply only to current and former judicial and quasi-judicial office holders.
(a) Approximately how many cases have you presided over as a trial judge that have gone to verdict or judgment?
In my former capacity as State Court Judge of Fayette County, I did not maintain, nor was I expected to maintain, records of cases that I presided over that have gone to verdict or judgment. However, I disposed of over
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approximately 7000 cases per year, so over the course of the 27 months that I was on the bench, I estimate that I presided over 14,000 cases that went to verdict or judgment.
(b) Of those cases, approximately what percent were:
(i) Jury Trials: Less than 1%
Bench Trials: Less than 1%
(ii) Civil Proceedings: Based on my best recollection, I believe that my caseload was approximately 20% civil.
Criminal Proceedings: Based on my best recollection, I believe that my caseload was approximately 80% criminal.
(c) At any time during your service as a trial judge, have you presided over a Division of your court (including presiding over an Accountability Court) that either entirely or partly involved handling only certain types of cases? If so, provide details including the period you served in such capacity and the percentage of time you typically devote or devoted to these particular cases.
No
(d) For each of the 5 most significant cases over which you presided as a trial judge, provide: (i) a capsule summary of the nature the case; (ii) the outcome of the case; and (iii) the name and contact information for counsel who had a significant role in the trial of the case.
During my tenure as State Court Judge, I presided over the following significant cases:
1. State v. Barnett, Case No. 2010SR-0869, aff’d 314 Ga. App. 17. (2012).
After an evidentiary hearing, I granted the defendant’s motion to suppress evidence seized during the execution of a “no knock” search warrant on the grounds that evidence that a firearm was seen on the premises five months before was stale and the supporting affidavit only included boilerplate statements regarding the need for a “no knock” warrant. The State appealed, and the order was affirmed. This case was significant because it was the first of a several cases prosecuted in Fayette State Court in which “no knock” search warrants with similar boilerplate and insufficient language were executed. See also State v. Cash, 316 Ga. App. 324 (2012).
State’s counsel: Joseph B. Myers, Assistant Solicitor-General, Fayette
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County Justice Center, 1 Center Drive, Fayetteville, Georgia 30214. (770) 716-4260
Defendant’s counsel: Glenn Howell, Assistant Public Defender (deceased); Walker Chandler, Office of the Public Defender, 175 Johnson Avenue, 202 Gleneagle Point, Peachtree City, Georgia 30269. (770) 716-4337
2. Hill v. State, Case No. 2010SR-0699, aff’d 321 Ga. App. 817 (2013).
After defendant was convicted, he appealed the denial of the motion to suppress, challenging the use of License Plate Recognition (LPR) technology, which was used by officers to identify vehicles that may have been stolen or if a missing or wanted person was associated with the vehicle. This case was significant because at the time, LPR technology was relatively new and defendants across the State and nation were challenging its use in traffic stops as an unreasonable search under the Fourth Amendment.
State’s Counsel: Joseph B. Myers, Assistant Solicitor General, Fayette County Justice Center, 1 Center Drive, Fayetteville, Georgia 30214. (770) 716-4260
Defendant’s counsel: Jason Martin, Macon Circuit District Attorney’s Office, 661 Mulberry Street, Macon, Georgia 31201. (478) 621-6266
3. Jones v. Fayette Family Dental Care, Inc., Case No. 2009SV-0781, aff’d 312 Ga. App. 230 (2011).
I granted summary judgment for the dental practice after a dental assistant sued for intentional infliction of emotional distress. The dental assistant had witnessed the dentist engaging in inappropriate conduct at the workplace. This case was unique because it was one of the few employment cases filed in state court, rather than federal court, and involved a prominent local dentist.
Plaintiff’s counsel: Adam Taylor, 352 Sandy Springs Circle, Atlanta, Georgia 30328. (404) 437-6494
Defendant’s counsel: Justin Connell and Douglas Miller, Elarbee Thompson Sapp & Wilson, LLP, 229 Peachtree Street N.E., Suite 800, Atlanta, Georgia 30303. (404) 582-8447
Larry Overman, Overman & Overman LLC, 259 Glynn Street South, Fayetteville, Georgia 30214. (770) 626-5200
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4. State v. Pye, Case No. 2011SR-0787, State Court of Fayette County.
Defendant was charged with vehicular homicide after failing to stop at a stop sign and causing the death of a motorcyclist. Defendant filed several pretrial motions, including a motion for production of Brady material and motion for subpoena for out-of-state witnesses, which required evidentiary hearings. After the case was set for trial, the defendant entered a plea and there was an extensive sentencing hearing where the State presented emotional testimony from the victim’s family and the defendant testified. This case was unique in several aspects, including that the defendant was the young adult son of a captain in the local police department, and the victim’s family was concerned that the defendant was receiving special treatment as a result. It was thus important for me to be transparent in explaining the process and to ensure that each side had a full and fair opportunity to be heard.
State’s Counsel: Jamie Inagawa, Solicitor-General, Fayette County Justice Center, 1 Center Drive, Fayetteville, Georgia 30214. (770) 716- 4260
Defendant’s Counsel: Martin Cowen, 8188 Pembrook Terrace, Jonesboro, Georgia 30236-4179. (770) 471-9800
5. Bridges v. Thornton et al., Case Nos. 2010SV-0484, 2011SV-0484, 2011SV-0448, State Court of Fayette County
After a bench trial before the previous State Court Judge, the doctor who was uninsured, was found liable for malpractice in performing a surgical procedure and a judgment was entered against her. I took over the case in the post-trial discovery phase, which focused on where the doctor was concealing her assets. After a series of hearings and discovery over the course of months, the doctor was subjected to increasing sanctions for failing to respond to discovery. Ultimately, it was determined that the doctor owned an interest in and served as an officer for a family corporation, which had been distributing funds to her. After the doctor refused to provide information about the source of the distributions, I found her in civil contempt and remanded her into custody of the Fayette County Jail but allowed her to purge the contempt by producing the information. Among the unique aspects of this case was a motion made while the doctor was in custody to permit her to conference with the other physicians in her practice so that they could provide services for the patients she had been scheduled to see. The doctor was able to purge the contempt after approximately five days in jail.
Plaintiff’s counsel: Ralph Hughes, 5641 Bahia Mar Circle, Stone Mountain, Georgia 30087. (404) 373-3458
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Defendant’s counsel: Thomas Tierney, 430 Prime Point Suite 202, Peachtree City, Georgia 30269 (770) 631-1100
Chuck Sylvester, Sylvester & Associates, 133 Summit Street Suite 130, Duluth, MN 55803. (770) 632-6011
(e) For each of the 5 most significant cases which you handled as an appellate judge please provide: (i) a capsule summary of the nature of the case; (ii) whether you authored the majority opinion or any dissenting, concurring, or specially concurring opinion, including a brief description of the writing; (iii) a summary of the case disposition on certiorari (if certiorari was sought); and (iv) the name and contact information for counsel who had a significant role in the appeal of the case.
I handled the following significant cases as a Court of Appeals Judge:
1. Mahalo Investments III, LLC v. First Citizens Bank & Trust Company, Inc., 330 Ga. App. 737 (2015) (McMillian, J.) – Using a textualist analysis, the Court held, as an issue of first impression, that under OCGA § 14-11-504 (a), an order charging a member’s interest in a limited liability company with payment of an unsatisfied judgment need not be initiated as a separate action against the limited liability company and that as long as the charging court has jurisdiction over the judgment debtor, the charging court does not also need to have jurisdiction over the limited liability company. Certiorari was not sought.
Appellant’s counsel: Andrew Lavoie, Edenfield Cox Buce, 115 Savannah Avenue, Statesboro, Georgia 30458. (912) 764-8600
John Christy, Schreeder Wheeler & Flint, 1100 Peachtree Street, Suite 800, Atlanta, Georgia 30309. (404) 681-3450
Appellee’s counsel: William Carmichael, Stokes Carmichael & Ernst, LLP, 2018 Powers Ferry Road, Suite 700, Atlanta, Georgia 30339. (404) 352-1465
Rachel Humphrey, 600 Saddleview Court, Atlanta, Georgia 30350. (770) 652-3119
N. Campbell, King & Spalding LLP, 1180 Peachtree Street, N.E., Atlanta, Georgia 30309. (404) 572-2748
2. Lewis v. Knology, Inc., 341 Ga. App. 86 (2017) (McMillian, J.) – In this divided opinion, I wrote for the majority, holding that the trial court properly denied class certification because the class representative failed to meet the typicality and adequacy
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requirements. The class representative lacked virtually any knowledge of the substance of the claims or the nature of the relief sought and had yielded control of the litigation entirely to her counsel. Among other things, the class representative was not aware that she had been named a party to a lawsuit that had been filed in Georgia or the names of the law firms who represented her. Certiorari was sought and denied.
Appellant’s counsel: David Bain, Law Offices of David A. Bain, LLC, 1230 Peachtree Street, N.E., Suite 1050, Atlanta, Georgia 30309. (404) 724-9990
Shannon L. Hopkins and Sebastiani Tornatore, Levi & Korinsky, LLP, 733 Summer Street, Suite 304, Stamford, Connecticut 06901. (203) 992-4523
Appellee’s counsel: Matthew Alford and Mark Degennaro, Willis McKenzie, LLP, 300 Smith Street, Lagrange, Georgia 30240. (706) 882-2942
Christopher M. Sacco, Carlton Fields Jorden Burt, P.A., Suite 1000, 4221 West Boy Scout Boulevard, Tampa, Florida 33607. (813) 223- 7000
Bruce J. Berman, Carlton Fields Jorden Burt, P.A., Miami Tower, Suite 4200, 100 S.E. Second Street, Miami, Florida 33131 (305) 530-0050
3. Garner v. State, 342 Ga. App. 824 (2017) (McMillian, J.) – The criminal defendant had challenged the use of extraordinary security measures at trial, including an extra metal detector at the door of the courtroom and a concealed shock belt, as a violation of his Sixth and Fourteenth Amendment rights. The security measures were put in place because there was evidence that the defendant had threatened the victim and his children prior to trial. The Court upheld the use of the security measures because the defendant failed to show that he was harmed or prejudiced by the use of the devices. This is the first case in Georgia specifically addressing the use of extra metal detectors in this context. Certiorari was sought and denied.
Appellant’s counsel: Matthew Leipold, Northeastern Judicial Circuit Public Defender, P.O. Box 390, Gainesville, Georgia 30503. (770) 718-5523
Appellee’s counsel: Lee Darragh and Jennifer Bagwell, Office of the District Attorney, Northeastern Judicial Circuit, P.O. Box 1690, Gainesville, Georgia 30503. (770) 531-6965
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4. Miller v. Turner Broadcasting System, Inc., 339 Ga. App. 638 (2016) (McMillian, J., dissenting) – An electrical worker believes that he shut off the circuit breaker to the area where he and another colleague are working. The co-worker ascends a ladder, is shocked by the junction box, climbs down, and tells the electrical worker that the circuit is live and that they should check the circuit breaker. Tragically, the electrical worker declines to do so and climbs up the ladder to check the junction box and is electrocuted. A majority of seven judges found issues of fact precluding summary judgment to the owner of the premises. In a dissent joined by Judge Branch, I explained that in similar cases, the Court had appropriately upheld summary judgment when the plaintiff was aware of a potential risk of live electricity, yet failed to exercise reasonable care for his own safety or through his own actions assumed the risk of potential danger. Certiorari was sought and denied.
Appellant’s counsel: Peter Law and Ernest Moran, Law & Moran, 563 Spring Street, N.W., Atlanta, Georgia 30308. (404) 814-3700
Darren Summerville, The Summerville Firm, LLC, 1226 Ponce de Leon Avenue, N.E., Atlanta, Georgia 30306. (770) 635-0030
Appellee’s counsel: Robert Luskin, Goodman McGuffey, Lindsey & Johnson, LLP, 2100 Tower Place, 3340 Peachtree Road, N.E., Atlanta, Georgia 30326. (404) 264-1500.
Michael Melanakos, 950 East Paces Ferry Road, Suite 1650, Atlanta, Georgia 30326. (404) 250-3236
Alan Bakowski, Courtney Ferrell, Daniel Reinhardt, Troutman Sanders LLP, 600 Peachtree Street N.E., Suite 5200, Atlanta, Georgia 30308. (404) 885-2578
Edward Lindsey, Dentons US, 303 Peachtree Street, Suite 5300, Atlanta, Georgia 30308. (404) 527-4580
Elissa Haynes, Drew Eckl & Farnham, LLP, 303 Peachtree Street N.E., Suite 3500, Atlanta, Georgia 30308. (404) 885-6243
5. Nasir v. Gwinnett County State Court, 341 Ga. App. 63 (2017) (McMillian, J., concurring specially) – In this appeal from a request by a criminal defendant to restrict public access to his criminal record under OCGA 35-3-37, the primary issue was the meaning of the statutory text. My concurring opinion explains why the plain language of the text of the statute is susceptible to only one reasonable interpretation and why the dissenting judge erred by relying on the notion of “legislative intent” to reach the opposite
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conclusion. “We are bound to effectuate the intent of the legislature as expressed in the words and language of the text that the legislature has deemed to enact.” Nasir, 341 Ga. App. at 69. Certiorari was sought and denied.
Appellant: pro se
Appellee’s counsel: Theresa Cox, Gwinnett County Department of Law, 75 Langley Drive, Lawrenceville, Georgia 30046. (770) 822- 8700
(f) Provide citations for all of your opinions as a trial judge, or for those opinions you authored as an appellate judge, where the decision was reversed or vacated by a reviewing court or where the judgment was affirmed with significant criticism of the substantive or procedural rulings or holdings. If any of the opinions listed were not officially reported, provide copies of the opinions.
As a State Court Judge, I was reversed in the following cases:
Reininger v. O’Neill, 316 Ga. App. 477 (2012) (affirming in part and reversing in part Reininger v. O’Neill, 2008SV-0791, State Court of Fayette County, Order granting in part and denying in part motion for summary judgment dated February 7, 2011).
State v. Mosley, 321 Ga. App. 236 (2013) (reversing State v. Mosley, 2011SV- 0762, State Court of Fayette County, Order granting motion to suppress dated January 20, 2012).
Wade v. Allstate Fire & Casualty Co., 324 Ga. App. 491 (2013) (reversing Wade v. Bruce, 2012SV-0099, State Court of Fayette County, Order granting Motion for Summary Judgment dated July 16, 2012).
As a judge on the Court of Appeals, the judgment was reversed or vacated in the following cases:
Scott v. State, 295 Ga. 39 (2014) (reversing Scott v. State, 320 Ga. App. XXVI (March 11, 2013) (unpublished)).
Raysoni v. Payless Auto Deals, LLC, 296 Ga. 156 (2014) (reversing Raysoni v. Payless Auto Deals, LLC, 323 Ga. App. 583 (2013)).
Petrakopoulos v. Vranas, 296 Ga. 48 (2014) (vacating in part Petrakopoulos v. Vranas, 325 Ga. App. 332 (2013) after plaintiff conceded that he never intended to raise an unjust enrichment claim).
Phillips . Harmon, 297 Ga. 386 (2017) (affirming in part and reversing in part Phillips v. Harmon, 328 Ga. App. 686 (2014)).
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Winfrey v. State, 304 Ga. 94 (2018) (reversing Winfrey v. State, 340 Ga. App. 344 (2017)).
In the following case, the reviewing court while affirming the judgment criticized the reasoning in a significant way:
State v. Outen, 296 Ga. 40 (2014) (disagreeing with rationale for rejecting the State’s relation-back claim while affirming State v. Outen, 324 Ga. App. 457 (2014)).
Unpublished orders and opinions that have been reversed have not been included but I can obtain them if the Judicial Nominating Commission would like to review them.
(g) Identify the basis by which you have assessed the necessity or propriety of judicial recusal (if your court employs an “automatic” recusal system, please include a general description of that system). Provide a list of any cases, motions or matters that have come before you in which a litigant or party has requested that you recuse yourself due to an asserted conflict of interest or in which you have recused yourself sua sponte. Identify each such case, and for each provide the following information:
(i) Whether your recusal was requested by a motion or other request by a party or any other person; or if you recused yourself sua sponte;
(ii) A brief description of the asserted conflict of interest or other ground for recusal;
(iii) The procedure you followed in determining whether or not to recuse yourself; and
(iv) Your reasoning for recusing or declining to recuse yourself, including any action taken to remove the real, apparent, or asserted conflict of interest, or to cure any other ground for recusal.
In my former capacity as a state court judge, I did not maintain, nor was I expected to maintain, a standing recusal list. During the approximately 27 months I served, I was assigned approximately 14,000 cases for disposition. There were certainly occasions where a litigant, particularly a pro se litigant, may have moved for my recusal. I do not remember any cases where the parties moved to substitute me for cause, but it may have happened. These cases cannot be searched other than by a physical review of the file. However, I did voluntarily recuse sua sponte on occasions where I may have known a party or recusal was necessary to otherwise avoid an appearance of impropriety. I can specifically recall one such instance when my personal physician’s office was the defendant in a malpractice case, Minix v. Greene et al., Case No. 2009SV-0774. The State Court of Fayette County did not employ
19 Judicial Nominating Commission Applicant Questionnaire an automatic recusal system.
I evaluated the necessity or propriety of recusal pursuant to the provisions of what is now Canon 2.11 of the Georgia Code of Judicial Conduct and also considered the provisions of what is now Canon 1, which requires judges to avoid impropriety and the appearance of impropriety. I also assessed recusal motions pursuant to Rule 25 of the Uniform Rules of State Court and Rule 25 of the Uniform Rules of Superior Court, which contain affidavit and time limitation requirements for litigants seeking recusal.
While a Judge on the Court of Appeals of Georgia, I have been assigned or otherwise responsible for voting on hundreds of cases. The Court does not utilize an automatic recusal system. In evaluating the recusal motion, I considered the Georgia Code of Judicial Conduct and utilized the procedures set out in Rule 44 of the Rules of the Court of Appeals of Georgia and the Court’s Internal Operations Manual, Section XVIII. I have been asked to disqualify myself from the following cases.
Lynch v. State, A14A1467 – In this criminal case, the pro se defendant moved to recuse Judges Dillard, Andrews, and me because his former appellate counsel engaged with Judge Dillard and me on Twitter on matters unrelated to this case or any other case. The motion to recuse was denied.
Levine v. Georgia Alloy, LLC et al., A19A0187 – The pro se appellant in this civil case moved to recuse all of the judges on the Court of Appeals because of complaints related to filings that had been rejected by the clerk’s office and other docketing issues. The motion to recuse was denied as untimely and/or unmeritorious.
I have recused sua sponte in the following cases:
Williams v. State, A13A0987 – The defendant was represented by a former colleague and friend from my previous law firm where I was a partner.
New v. State, A13A2391 – The case was tried in Superior Court in the Griffin Judicial Circuit when I was still a State Court judge. During trial, the Superior Court judge presiding over the case consulted with me about issues that arose during trial.
Smith et al. v. Judicial Correction Services, Inc., A14A1521 – In this civil case, the plaintiff alleged that the private probation company that served Fayette State Court was liable for failing to supervise the probationer who drove drunk and died while she was serving the sentence rendered by the Fayette State Court.
Coen v. Aptean, Inc. et al, A15D0065 – The respondent to this application for discretionary application was represented by former colleagues and friends from my previous law firm where I was a partner.
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905 Bernina Avenue Cooperative, Inc. et al. v. Smith/Burns LLC et al., A17A0062, A17A0063 – One of the parties on appeal was represented by a former colleague and friend from my previous law firm where I was a partner.
Aldredge v. Byrd (A17A0281), Aldredge v. Wilson (A17A0285), Aldredge v. Byrd (A17A0296), Aldredge v. Arnold (A17A0297), Aldredge v. Williams (A17A0298), Aldredge v. Smith (A17A0299) – I presided over these cases in the very early stages of litigation in the State Court of Fayette County.
Burson et al. v. Milton Hall Surgical Associates, LLC, A17A1317 – The appellant was my personal physician, and I had personal knowledge of some of the issues on appeal.
In the interest of M.D.W., A17D0519 – A lawyer in the proceeding was related to me within the third degree of relationship as defined in Canon 2.11 of the Georgia Code of Judicial Conduct.
Moore v. Hullander, A18D0033, A18A0592 -- A lawyer in the proceeding was related to me within the third degree of relationship as defined in Canon 2.11 of the Georgia Code of Judicial Conduct.
Reinhardt v. State, A18A0325 – The victim of the armed robbery was a close friend, and I had personal knowledge of the crime.
Coen v. Aptean et al., A18A0522 – The appellees were my former law firm and a former law partner with whom I had a close relationship.
Belk, Inc. v. Evans, A18I0092 -- A lawyer in the proceeding was related to me within the third degree of relationship as defined in Canon 2.11 of the Georgia Code of Judicial Conduct.
Herbert v. Walker, A19A1008, A19A2482 -- A lawyer in the proceeding was related to me within the third degree of relationship as defined in Canon 2.11 of the Georgia Code of Judicial Conduct.
(h) List all employment you had while serving as a judge (whether full-time or part-time, contractual, at-will, consulting, teaching, or otherwise) other than elected judicial office. Specify your dates of employment, employer, major job responsibilities, and your supervisor.
None
19. Describe your appellate practice during the past five (5) years in detail and give citations if your cases were reported.
Since October 2010, I have not appeared in any appellate court as a litigant. Prior to October 2010, I had an extensive appellate practice including:
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Monaghan v. Ford Motor Co., 71 A.D.3d 848, 897 N.Y.S.2d 482 (2nd Dep’t 2010).
I represented Ford Motor Company in an interlocutory appeal brought by the Estate of Monaghan, appealing the dismissal of a breach of fiduciary duty claim against Ford as well the narrowing of a separate fraud claim. The decedent had been a minority owner of a dealership in Queens, New York, which had filed for bankruptcy and subsequently went out of business. The Second Department, Appellate Division affirmed the trial court’s narrowing of the fraud claim but held that the breach of fiduciary duty claim was not barred by the applicable statute of limitations. In New York, two possible limitations periods apply to a breach of fiduciary duty claim, depending in part on whether fraud is an essential element of the claim. The Second Department held that the fraud allegations were not incidental to the breach of fiduciary duty claim, and that the longer statute of limitations applied.
Liberty Lincoln-Mercury, Inc. v. Ford Motor Co., 562 F.3d 553 (3d Cir. 2009).
I represented Ford Motor Company in an appeal of an injunction order prohibiting Ford from continuing a wholesale price increase on new vehicles sold to New Jersey dealers, which the dealers alleged was a violation of the New Jersey Franchise Practices Act. The NJFPA provides for certain levels of reimbursement for warranty work performed by dealers. To recover the increased cost of doing business, Ford increased the wholesale price of vehicles to New Jersey dealers, which the district court held subverted the NJFPA’s warranty reimbursement provision, and enjoined the surcharge. The Third Circuit reversed the injunction order due to Plaintiffs’ failure to show irreparable harm.
DaimlerChrysler Financial Services Americas, LLC v. Wages, 294 Ga. App. 494, (2008).
DaimlerChrysler Motors Co., LLC v. Jackson, 294 Ga. App. 498 (2008).
DaimlerChrysler Motors Co., LLC v. Warnell, 294 Ga. App. 500 (2008).
DaimlerChrysler Motors Company, LLC v. Clemente, 294 Ga. App. 38 (2008).
In these four related appeals, I represented DaimlerChrysler Motors Company, LLC in cases brought by customers of a Dodge dealer that had failed to pay off the loans on vehicles traded in by these customers. The customers asserted a number of claims, including breach of contract, violations of the Georgia Motor Vehicle Franchise Practices Act, and Georgia RICO. The customers also alleged that they received poor customer service from the dealer and that Chrysler was liable for negligent misrepresentation in certifying the dealer as a “Five Star Dealer.” The Court of Appeals held that Chrysler was not vicariously liable for the actions of the dealer and that certifying a dealer as a “Five Star Dealer” did not constitute
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a representation that can be reasonably relied upon to support a negligent misrepresentation claim.
Tri-County Motors, Inc. v. American Suzuki Motor Corp., 301 Fed. Appx. 11, 2008 WL 5063291 (2d Cir. 2008).
I represented American Suzuki Motor Corporation in a case brought by a potential purchaser of a Long Island dealership. After Suzuki rejected the potential purchaser’s application to become a Suzuki dealer, the potential purchaser sued for breach of contract, tortious interference with contract, and violations of the New York Motor Vehicle Dealer Act. After contentious discovery, including claims that Suzuki had failed to properly search for and produce electronic documents, the trial court granted Suzuki’s motion for summary judgment and denied plaintiff’s motion for sanctions for alleged discovery violations. On appeal, the Second Circuit affirmed.
Ford Motor Co. v. Lawrence, 279 Ga. 284 (2005).
In this product liability action, Ford had been ordered to produce documents protected by the work product doctrine and had been sanctioned for the failure to produce the documents. I represented Ford in the subsequent mandamus action against the trial court judge, seeking review of those orders. The Supreme Court affirmed the dismissal of the mandamus action because in the interim, Ford had been able to obtain a supersedeas from the Court of Appeals and thereby was able to obtain interlocutory appellate review of the sanctions order. I also represented Ford in the Court of Appeals.
Security Life Ins. Co. of America v. St. Paul Fire & Marine Ins. Co., 273 Ga. App. 91 (2005).
I represented Security Life Insurance Company in a case brought by insureds claiming fraud and violations of Georgia RICO based on the forgery by an insurance agent on an application for insurance and the subsequent denial of coverage. The case was originally tried in 1996, and the various appeals generated ten appellate decisions. Ultimately, the judgment on the Georgia RICO claim was reversed. In this last reported decision, the Court of Appeals adopted the Supreme Court’s decision relating to the calculation of pre-judgment and post-judgment interest, which resulted in the striking of pre-judgment interest.
U.S. v. Howell, 425 F.3d 971 (11th Cir. 2005).
I represented the defendant in this appointed case before the Eleventh Circuit, challenging the government’s confiscation of the defendant’s firearms after the defendant was convicted of a felony.
20. Please submit a representative sample of your writing (e.g. brief, order, opinion,
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opinion letter).
I enclose the concurring opinion in Nasir v. Gwinnett County State Court, 341 Ga. App. 63 (2017) (McMillian, J., concurring) as a representative writing sample. Although I rely upon my staff attorneys extensively as a Court of Appeals Judge, from time to time, I will undertake drafting an opinion from start to finish. This opinion is one of those that I researched and drafted.
21. Describe your legal practice, other than litigation experience, during the past five (5) years as it may relate to office and business administration as well as any other phases of your practice.
Currently, I serve as Vice Chief Judge on the Court of Appeals and as a member of the Court’s Executive Council. Previously, I chaired the Court of Appeals’ Internal Operations Manual Committee, which led the effort to successfully transition from the Court’s long-standing practice of not having 2-1 decisions, as well as other new procedures that resulted from having expanded jurisdiction in 2017. I have also served on the Court’s Rules Committee, Technology Committee, Personnel Committee, Orientation Committee for New Judges, and Staff Attorney CLE Committee. I also currently serve as Chair to the Judicial Council’s Court Reporting Matters Committee and am the court’s representative on the Judicial Council’s Technology Committee. Until recently, I represented the Court on the Chief Justice’s Commission on Professionalism. Also, in 2019, I was appointed by Chief Justice Harold Melton to serve on the Judicial Council’s Ad Hoc Committee for the Prevention of Sexual Harassment in the Judicial Branch, which issued a report and recommendations in December 2019 on best practices, policies, and training to prevent sexual harassment within the different classes of courts.
As the only State Court Judge in Fayette County, I handled all of the administrative responsibilities associated with a Chief Judge and department head within Fayette County government, including hiring and supervising a Staff Attorney, administrative assistant, and court reporter; projecting expenses; and setting a budget. I worked closely with the State Court Clerk to update and incorporate technology to more efficiently track and administer cases and motions.
I was also active in the Council of State Court Judges, including serving on the Legislative Committee and Uniform Rules Committee.
In my private practice, I have held numerous leadership and management positions at Sutherland, including Diversity & Inclusion Partner for the Litigation Group, Work Assignment Coordinator, Transition into Law Practice Mentor, and Career Planning Program Mentor. I also was on the team that explored and implemented the docketing system for Sutherland’s litigation group, and I supervised the docketing department in the Atlanta office.
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I have also served on a number of committees within the firm, including the Hiring Committee, Technology Committee, Professional Development Committee, and Diversity Committee. I also founded Sutherland’s Asian Attorney Affinity Group and was an active member of Sutherland’s Women Attorney Group.
22. Have you ever been engaged in any occupation, business, or profession other than the practice of law? If so, please give the details including dates.
Other than a work-study job at the Economics Department at Duke University, clerical positions in the summers during my time at Duke University, and working in a Chinese restaurant as a hostess and cashier while in high school, I have not engaged in any occupation, business or profession other than the practice of law.
23. Have you ever been discharged from employment for any reason or have ever resigned after being informed that your employer intended to discharge you?
No
24. Are you presently acting in a fiduciary capacity? If so, state details.
Currently, I serve on the Board of Advisors for the Atlanta Lawyers’ Chapter of the Federalist Society for Law and Public Policy Studies. I also serve on the Board of Directors for the following non-profit organizations: (1) Georgia Asian Pacific American Bar Association, (2) Georgia Legal History Foundation, and (3) Landmark Christian School.
25. Please describe your opinion of the role that a law clerk or a staff attorney should serve with respect to assisting a judge.
Based on my experience working with staff attorneys on the Court of Appeals and as a law clerk for Judge O’Kelley in the Northern District of Georgia, I believe that a staff attorney plays a significant role in assisting the judge. On the appellate level, staff attorneys are vital in reviewing the record, researching case law, and preparing the judge for oral argument. Given the caseload of the Court of Appeals, the staff attorney is essential in summarizing the arguments of the parties and issues on appeal for the judge’s consideration and to prepare for oral argument. Once the issues are identified, the judge can then direct the staff attorney to specific areas to research. The staff attorney can also perform an initial review of the briefs, transcripts, affidavits, depositions, discovery responses, or other materials in the record to highlight issues for the judge’s attention. After a thorough review of the record and research of the issues, the staff attorney should work closely with the judge in memorializing the judge’s reasoning and analysis in a written opinion. It is incumbent on the judge, however, to review thoroughly and revise as necessary any opinion initially drafted by the staff attorney.
A good staff attorney should also serve as a “sounding board” for the judge to candidly discuss issues and opposing points of view since judges are prohibited from conferring with anyone about their cases except for their staff and other judges.
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26. Please describe how a judge of the court for which you are applying might improve the efficiency and effectiveness of the legal system in administering justice.
Based on my observations and experience sitting by designation on the Supreme Court on two matters, I believe that a Justice is in a unique position to improve the efficiency and effectiveness of the legal system. Because Supreme Court justices conference on each case, each justice has an opportunity to shape all of the decisions rendered by the Court. I hope to bring my background and perspective as a civil litigator, trial judge, and appellate judge to ensure that opinions are based on sound legal reasoning, provide clear guidance to parties and lower courts, and anticipate issues that may arise in future cases.
Justices on the Supreme Court also have opportunities to take leadership positions in the bench and bar. Because the State Bar of Georgia was created as an administrative arm of the Supreme Court, the Justices oversee the work of the Board of Governors. Likewise, the Supreme Court has the duty to set and implement standards for admission to the bar through the Office of Bar Admissions and Board to Determine Fitness of Applicants. The Supreme Court also is responsible for planning, policy, and administrative matters for all levels of courts in Georgia, which is accomplished through the Judicial Council. There are various ways that individual Justices can serve through the Judicial Council. Also, with my background growing up in a bilingual family and the language issues that I observed while on the State Court, I am particularly interested in and supportive of the work of the Supreme Court’s Commission on Interpreters.
27. Have you ever been sued by a client? If so, please give particulars.
No
28. Have you ever been a party or otherwise involved in any legal proceedings? If so, please give the particulars. Do not list proceedings in which you were a guardian ad litem or stakeholder, or otherwise involved in your capacity as legal counsel to a party. Include all proceedings in which you were a party in interest, a witness, named as a co-conspirator or a co-respondent, or grand jury investigation in which you figured as a subject, or in which you appeared as a witness.
In June 2019, pro se appellant Sam Levine, who had recently lost an appeal, applied for a warrant for my arrest on the grounds that the opinion to which I concurred contained false statements. The other members of the panel, Chief Judge Christopher McFadden and Judge Stephen Goss, were also served with arrest warrant applications, as well as members of the Supreme Court of Georgia. A hearing was held in Fulton County Magistrate Court on June 24, 2019, Case No. 19MAGC-03598, and the applications for arrest were denied.
After the arrest warrant applications were denied, Mr. Levine filed a civil action against me, Chief Judge McFadden, Judge Goss, certain members of the Superior Court of DeKalb County, certain members of the Superior Court of Fulton County,
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staff attorneys and calendar clerks for some of the trial judges, the electronic case management system provider and its CEO, and the Clerk of the DeKalb County Superior Court for declaratory and injunctive relief and damages from racketeering and conspiracy to engage in a pattern of racketeering activity, based on the many complaints and appeals asserted by Mr. Levine, which had been denied. The defendants have filed answers and motions to dismiss, which remain pending. Superior Court of DeKalb County, Case No. 19CV9808.
As a State Court Judge, a defendant (Abijola Laosebikan) who had a number of cases before the court, applied multiple times to have a warrant issued for my arrest, alleging that I conspired with his creditors, creditors’ attorneys, and the bank to garnish his bank accounts in violation of Georgia RICO. The warrant application was dismissed after hearing in the Superior Court of Fayette County.
To the best of my recollection, while I was serving as a law clerk for the Honorable William C. O’Kelley in the Northern District of Georgia, the law clerks were named as defendants as a generic group, along with all judges in the Northern District of Georgia and the Eleventh Circuit, in a pro se prisoner action for violating his constitutional rights. I was not named specifically in the case and am unaware of its disposition.
29. Have you published any legal books or articles? If so, please list them, giving the citations and dates.
What Counsel Should Know About the Court of Appeals,VERDICT, JOURNAL OF THE GEORGIA TRIAL LAWYERS ASSOCIATION (Spring 2015)
What Will it Take to Get You in a New Car Today?: A Proposal for a New Federal Automobile Dealer Act, 45 GONZ. L. REV. 67 (2010).
Hertz Corp. v. Friend: Supreme Court Clarifies Where a Corporation’s “Principal Place of Business” is for Determining Diversity Jurisdiction, ABA Corporate Counsel eNewsletter (April 2010) (CO-AUTHOR WITH JOSHUA A. MAYES).
Discrimination Claims and Diversity Initiatives: What’s a Franchisor to Do?, 28 FRANCHISE L.J. 71 (2008)(CO-AUTHOR WITH KELLY J. BAKER).
Collective Bargaining Agreements, Mandatory Arbitration, and Title VII: Varner v. National Super Markets, Inc., 32 GA. L. REV. 287 (1997).
30. List any honors, awards, or other forms or recognition which you have received.
Professional
2019 Distinguished Judicial Service Award from the Young Lawyers Division of the State Bar of Georgia
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2018 Women’s Leadership Award from the Georgia Asian Pacific American Bar Association
2016 Law & Justice Award from Women Looking Ahead Magazine
2016 Trailblazer Award by the Vietnamese American Bar Association of Georgia
2015 and 2014, 25 Most Influential Asian Americans of Georgia by the Georgia Asian Times
2015 Distinguished Service Award from the Asian American Heritage Foundation
2014 Notable Woman of History by the Starr’s Mill Chapter of the Daughters of the American Revolution
2013 Community Champion by the Asian American Legal Advocacy Center
2012 National Asian Pacific American Bar Association Best Lawyers Under 40
2010 Distinguished Alumni Award by Westminster Schools of Augusta, Georgia
“2010 Most Powerful and Influential Women of Georgia” by the National Diversity Council
Named a Rising Star by Georgia Super Lawyers for 2007 and 2010
Academic
University of Georgia School of Law, summa cum laude
University of Georgia School of Law, Order of the Coif
Corpus Juris Secundum Award for Scholastic Excellence, Torts
Class of 1933 Torts Award for Excellence in the Study of Torts Law
Woodruff Scholar
Editorial Board, Georgia Law Review
Duke University, magna cum laude
Phi Beta Kappa
Duke Review, 1994-95 Senior Editor; 1992-94 Associate Publisher
Valedictorian, Westminster Schools of Augusta
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31. List all bar associations and professional societies of which you are a member and give the titles and dates of any offices which you have held in such groups. Please also list chairmanships of any committees in bar associations and professional societies, and memberships on any committees which you believe to be of particular significance.
Atlanta Lawyer’s Chapter of the Federalist Society for Law and Public Policy Studies, Board of Advisors, 2011 to present
Chair, Judicial Council’s Standing Committee on Court Reporting Matters, 2019 to present
Chief Justice’s Commission on Professionalism – In 2017, I co-chaired the search committee for a new executive director at the request of the Chief Justice.
State Bar of Georgia – In 2014, I served on the search committee for the Executive Director of the State Bar. I have also served on the committee to reinvigorate the State Bar’s Legal Fellows program.
Georgia Asian Pacific American Bar Association, 2017 President; 2016 President- Elect; 2015 Corporate Secretary; Board of Directors, 2012 to present
GAPABA Law Foundation, Board of Directors, 2014 to 2017
Georgia Legal History Foundation, Board of Trustees, 2013 to present
Member, Judicial Council’s Ad Hoc Committee to Prevent Sexual Harassment in the Judicial Branch of Government, 2019
National Asian Pacific American Bar Association
Lawyers Club of Atlanta
Barrister, Lamar Inn of Court
Fayette County Bar Association
32. Please describe your knowledge of the Code of Judicial Conduct and the circumstances under which you became familiar with the Code?
I became familiar with Georgia’s Code of Judicial Conduct during the process leading up to my appointment to the State Court of Fayette County in 2010. As a State Court Judge, I made it a practice to save a copy of the Code on the desktop of my work computer to remind me of the Code and so I can easily access and review it. I have continued that practice as a judge on the Court of Appeals.
33. Will you adhere to the letter and the spirit of the Code of Judicial Conduct should you be appointed?
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Yes
34. You are requested to execute and transmit to the Chairman of the Commission two copies of the form of Authorization for Access to Information Concerning Disciplinary Matters included in the application packet. Have you executed these documents and transmitted them to the Chairman with your application materials?
Two copies of the form of Authorization for Access to Information Concerning Disciplinary Matters are enclosed.
35. If you are now an officer or director of any business organization or otherwise engaged in the management of any business enterprise, please give details, including the name of the entity, the nature of the business, the title of your position, the nature of your duties, and the term of your service. If it is not your intention to resign such positions and relinquish participation in the management of any of the foregoing enterprises, please so indicate, giving reasons. List all companies in which you, your spouse or minor currently children hold stock.
I am not an officer or director of any business organization or otherwise engaged in the management of any business enterprise. My husband, children and I do not hold stock in any specific company although my husband and I own shares in index stock and bond index mutual funds.
36. Please list all non-professional, charitable, and civic organizations to which you belong and any service activities in which you have participated in the past two (2) years.
Landmark Christian School, Board of Trustees, 2016 to present; Vice Chair, June 2018 to May 2019; Treasurer, June 2019 to present.
Fayette County Historical Society, Board of Directors, 2012 to March 2018
ServiceJuris Day at Thomasville Heights Elementary School, June 2018
Dogwood Church, Tyrone, Georgia – In the twenty years that I have been a member and regular attender of Dogwood Church (formerly Braelinn Church in Peachtree City, Georgia), I have served in a number of capacities in the adult, children, and women’s ministries, including leading a small group study in our home, writing articles for the women’s ministry newsletter, facilitating a women’s ministry study, and teaching in the elementary and youth programs.
Operation Christmas Child – As a family, we annually provide gifts for needy children through Operation Christmas Child.
37. Have you ever been arrested, charged, or held by federal, state or other law-enforcement authorities for violation of any federal law, state law, county or municipal law, regulation or ordinance? If so, please give details. Do not include
30 Judicial Nominating Commission Applicant Questionnaire
traffic violations for which a fine of $50.00 or less was imposed.
I have been issued four traffic tickets in the following jurisdictions: (1) City of Atlanta (failure to heed officer directing traffic); (2) Tyrone, Georgia (speeding); and (3) Peachtree City, Georgia (speeding); (4) City of Atlanta (speeding). On the first ticket, I pleaded nolo contendere and paid a fine of approximately $50.00 plus costs. Although I cannot recall the fines imposed for the speeding tickets in Tyrone and Peachtree City, each was over $50.00. I also do not recall the dates for the first three tickets, but each was issued more than ten years ago. The last speeding ticket was issued on January 22, 2018, and I disposed of it by paying a fine on-line of $179.88.
38. To your knowledge, have you ever been the subject of any complaint to or been disciplined or cited for a breach of ethics or unprofessional conduct by any court (including findings of contempt of court), or by any organization, agency or professional group, including but not limited to the State Bar of Georgia or the Judicial Qualifications Commission? If so, provide details.
I am aware of a 2012 complaint to the Judicial Qualifications Commission by my opponent in my election to Fayette State Court relating to campaign activities. The complaint was summarily dismissed as meritless within a month after filing and prior to reaching the investigation stage. I am not aware of any other complaint to any other organization, agency, or professional group.
39. During any period of public service (appointed or elected), please state whether you have ever been the subject of any complaint, enforcement action, or entered into any consent or compliance order with the Georgia Government Transparency and Campaign Finance Commission (or its predecessor), the Federal Election Commission, any municipal or county governing authority, or other campaign finance regulatory body in another jurisdiction. Please also state whether you have ever paid a civil penalty or late fee to the Commission or any other campaign finance regulatory body in another jurisdiction, including but not limited to the filing of (or failure to file) a campaign disclosure report or personal financial disclosure report as required by applicable law. If so, please provide details.
None
40. The Governor’s Ethics Order prohibits the appointment by the Governor of any person to fill a judicial vacancy who has: (a) made a contribution to, or expenditure on behalf of, the Governor or the Governor’s campaign committee at any time after the vacancy occurs; or (b) who has made a contribution to, or expenditure on behalf of, the Governor or the Governor’s campaign committee within the 30 days preceding the vacancy unless such person requests and is granted a refund of such contributions or reimbursement of such expenditure.
(1) Have you made a contribution or expenditure as described in 40(a) above?
No
31
In the Court of Appeals of Georgia
A16A1611. NASIR v. GWINNETT COUNTY STATE COURT et al.
MCMILLIAN, Judge, concurring specially.
Although I concur fully in the majority’s opinion, I write separately to explain why the plain language of OCGA § 35-3-37 does not support the conclusion reached by the dissent.
With respect to Nasir’s request to restrict his criminal record under OCGA §
35-3-37, our law generally provides public access to “criminal history record information,” which is defined in OCGA § 35-3-30 (4) (A) as “information collected by criminal justice agencies on individuals consisting of identifiable descriptions and notations of arrests, detentions, indictments, accusations, information, or other formal charges, and any disposition arising therefrom, sentencing, correctional supervision, and release.” (Emphasis supplied.) See OCGA §§ 35-3-34; 35-3-35. Clearly, Nasir’s nolo plea and the sentence imposed thereon constitute a “disposition” arising from the charges against him.
While access to criminal history information is broadly granted, the primary statute restricting access1 is very specific, and in order to determine if access should or may be restricted, we must look to the specific provisions of the statute that provide for restricted access. See OCGA § 35-3-37;2 Mosley v. Lowe, 298 Ga. 363,
364 (1) (782 SE2d 43) (2016). As summarized by our Supreme Court:
Under the current version of OCGA § 35-3-37, individuals are afforded the right to automatic restriction of their “criminal history record information” pertaining to most arrests ultimately ending in non-
1 Pursuant to OCGA § 35-3-37 (a) (6), records that are “restricted” are “available only to judicial officials and criminal justice agencies for law enforcement or criminal investigative purposes or to criminal justice agencies for purposes of employment” and are prohibited from being “disclosed or otherwise made available to any private persons or businesses.”
2 We note that OCGA §§ 35-3-34 and 35-3-35 also provide for certain criminal history records to be shielded, including records of individuals discharged under our first offender statute and the prosecution records of cases assigned to accountability courts when it is contemplated that the charges will be dismissed or nolle prossed upon successful completion of the program, as set out in OCGA § 42-8-62.1 and OCGA § 15-1-20, respectively. Nasir has not asserted these statutes as grounds for the relief he requests.
2 conviction. OCGA § 35-3-37 (h). As compared to expungement under prior law, restriction is thus available as to a broader range of criminal dispositions, with fewer exceptions. Compare OCGA § 35-3-37 (h)-(j), with former OCGA § 35-3-37 (d) (2012). In addition, record restriction generally takes effect automatically as to eligible arrests, see OCGA § 35-3-37 (h) (“[a]ccess shall be restricted by the [GCIC]”), whereas expungement was accomplished only by request, see former OCGA § 35-3-37 (d) (1) (2012) (individual “may request” expungement).
(Footnotes omitted.) Mosley, 298 Ga. at 364-65. Thus, the majority properly focused its inquiry on whether Nasir has stated a claim to restrict his criminal record under
OCGA § 35-3-37 (h) through (j).
The first and overarching principle of statutory construction is that when construing a statute, “we look at its terms, giving words their plain and ordinary meaning, and where the plain language of a statute is clear and susceptible of only one reasonable construction, we must construe the statute according to its terms.”
(Citation and punctuation omitted.) Mahalo Investments III, LLC v. First Citizens
Bank & Trust Co., 330 Ga. App. 737, 738 (769 SE2d 154) (2015). In other words,”[i]f the statutory text is clear and unambiguous, we attribute to the statute its plain meaning, and our search for statutory meaning is at an end.” (Citation and
3 punctuation omitted.) Nguyen v. Southwestern Emergency Physicians, P.C., 298 Ga.
75, 79 (2) (a) (779 SE2d 334) (2015).
The dissent finds that Nasir may petition to restrict his criminal record under
OCGA § 35-3-37 (h) (2) (A)3 and (i) (1) (A)4 purportedly because these provisions do not “clearly prohibit Nasir – who entered a nolo contendere plea to a single count of misdemeanor theft and had the remaining counts nolle prossed – from obtaining relief.” That is not what the text of subsection (h) (2) (A) provides, which is that a criminal history record is restricted only when “all charges” are dismissed, not some of the charges as in Nasir’s case. The dissent then turns to the legislative intent in
3 Subsection (h) (2) (A) provides for restricted access where “[e]xcept as provided in section (i) of this Code section, all charges were dismissed or nolle prossed[.]”
4 OCGA § 35-3-37 (i) (1) (A) in turn provides:
After the filing of an indictment or accusation, an individual’s criminal history record information shall not be restricted if: (1) The charges were nolle prossed or otherwise dismissed because: (A) Of a plea agreement resulting in a conviction of the individual for an offense arising out of the same underlying transaction or occurrence as the conviction.
(Emphasis supplied.)
4 allowing defendants to enter nolo contendere pleas and finds that because a nolo plea does not qualify as a conviction under subsection (i), Nasir is entitled to relief. Again, the text of subsection (i) is directly opposite to the dissent’s conclusion as that provision only speaks of circumstances when a criminal history record “shall not be restricted.” See Mosley, 298 Ga. at 366 (3) (explaining that subsection (i) describes
“disqualifying exceptions” to the record restriction provisions set out in subsection
(h) (2) (A)).
The dissent’s error stems from going beyond the plain language of the text of the statute, which is only susceptible to one reasonable interpretation, and its analysis exemplifies why it is important to apply the rules of statutory construction in a principled way. If the plain language of the text of the statute is only susceptible to one reasonable interpretation, a court need not resort to other rules of construction such as construing statutory language to avoid surplusage. See Nguyen, 298 Ga. at 79.
That is because resorting to other rules of statutory construction in the absence of ambiguity may create ambiguities where none exist. See Mahalo, 330 Ga. App. at
739. In failing to apply this bedrock principle of statutory construction, the dissent was led astray to reach the absurd result that “all charges” means “some of the
5 charges,” and the criminal record “shall not be restricted” becomes “shall be restricted.” See OCGA § 35-3-37 (h) (2) (A) and (i) (1) (A).
Nor do I believe that the dissent’s conclusion can be saved by some notion that restricting the record effectuates legislative intent. Although it is true that in construing statutes, we have been directed to seek to effectuate the intent of the legislature,5 that does not mean that the Court is permitted to “rewrite statutes to promote policies that are not expressed in that legislation – much less read into a statute a policy that contradicts the text of the law and is derived without citation to any other source.” Anthony v. American General Financial Svcs., Inc., 287 Ga. 448,
450 (697 SE2d 166) (2010). We are bound to effectuate the intent of the legislature as expressed in the words and language of the text that the legislature has deemed to enact.6 See Mahalo, 330 Ga. App. at 737.
5 See Lue v. Eady, 297 Ga. 321, 332 (773 SE2d 679) (2015); Abdel Samed v. Dailey, 294 Ga. 758, 763 (2) (755 SE2d 805) (2014); Hankla v. Postell, 293 Ga. 692, 695 (749 SE2d 726) (2013).
6 Thus, the dissent improperly relies on the “Final Report of the Senate Expungement Reform Study Committee (2013)” to discern the spirit and intent of the legislation. See Merritt v. State, 286 Ga. 650, 656-57 (690 SE2d 835) (2010) (Nahmias, J., concurring specially) (questioning “how the ‘intention’ of a multi- member legislative body is to be determined, if not from the text of the laws that it actually passed”).
6 For these additional reasons, I join in the majority’s opinion that Nasir’s claim for restriction of his criminal record was properly dismissed.
I am authorized to state that Presiding Judge Dillard and Judge Branch join in this opinion.
7