Appellant's Reply To Objection To Motion To Recuse 11th Circuit Court Of Appeals

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _______________________________________ JAMES B. STEGEMAN, Plaintiff/Appellant

APPEAL NO. 08-16174-C DISTRICT COURT NO. 1:08-CV-1971

Vs. APPELLANT’S TO RECUSE SUPERIOR COURT STONE MOUNTAIN JUDICIAL CIRCUIT; SUPERIOR COURT JUDGE CYNTHIA J. BECKER; GEORGIA POWER CO.; BRIAN P. WATT; SCOTT A. FARROW; Defendants/Appellees

REPLY TO APPELLEES’ RESPONSE MOTION

_________________________________________________________ COMES NOW Appellant and files his Reply to Georgia Power, Scott Farrow, and Brian Watt’s1 Response in Opposition to Appellant’s Motion to Recuse. The above listed Appellees, appear to complain that Appellant has shown no basis for recusal, and requests that Recusal be Denied. Appellant replies to the allegations made in Appellees’ Response and will show further sufficient basis for recusal in the following Argument and Citations. Brian Watt signed the letter accompanying Appellees’ Response, one could easily get confused on who is representing who from Troutman Sanders in this Appeal. 1

ARGUMENT AND CITATION OF AUTHORITY Assuming that this Court did in fact recently state “the claim of bias under §455 must show that the bias is personal as distinguished from judicial in nature”; it has also been stated that there can be a showing that the Judge is partial to one party over another party as well. Parties to civil cases have a constitutional right to a fair trial. Latiolais v. Whitley, 93 F.3d 205, 207 (5th Cir.1996); Lemons v. Skidmore, 985 F.2d 354, 357 (7th Cir. 1993); Bailey v. Sys. Innovation, Inc., 852 F.2d 93, 98 (3d Cir. 1988). And “[t]rial before an ‘unbiased judge’ is essential to due process.” Johnson v. Mississippi, 403 U.S. 212, 216 (1971); accord Concrete Pipe & Prods. v. Constr. Laborers Pension Trust, 508 U.S. 602, 617 (1993) (“due process requires a ‘neutral and detached judge in the first instance’”) (citation omitted). The United States Supreme Court has stated: “and this ‘stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties,’ Offutt v. United States, 348 U.S. 11, 14 (1954), Marshall v. Jerrico, 100 S. Ct. 1610, 446 U.S. 238, 64 L. Ed. 2d 182, (1980). Pg. 243: “We have employed the same principle in a variety of settings, demonstrating the powerful and independent constitutional interest in fair adjudicative procedure.*fn2 Indeed, "justice must satisfy the appearance of justice," and this "stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally 2

between contending parties," In re Murchison, 349 U.S. 133, 136 (1955). See also Taylor v. Hayes, 418 U.S. 488 (1974).” Further, when the Judge has actual knowledge that there is a reason to recuse/disqualify themselves, they have an obligation to do so, even without a party moving for the recusal. “…if the judge sitting on a case is aware of grounds for recusal under section 455, that judge has a duty to recuse himself or herself. See, e. g., Nicodemus v. Chrysler Corp., 596 F.2d 152, 157 & n.10 (6th Cir. 1979).” United States v. Sibla 624 F.2d 864 “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 of whether a judge is constitutionally required to disqualify” Randall T. Shepard, Campaign Speech: Restraint and Liberty in Judicial Ethics, 9 Geo. J. Legal Ethics 1059, 1087 (1996) Fact: Judge Frank Hull is married to Antonin Aeck of Lord, Aeck and Sergent2 an architect firm. Georgia Power a couple of years ago, hired to its Board of Directors a Robert L. Brown Jr., who “got his start with Lord, Aeck and Sergent.”3

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A “Google” search performed for “Aeck Troutman Sanders” returns

Lord, Aeck and Sergent is a prestigious architect firm in Atlanta.

“Georgia Power Adds New Board Members” from PR Newswire: http://www.prnewswire.com/cgi-bin/stories.pl?ACCT=104&STORY=/www/story/05-212003/0001951752&EDATE= 3

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“about 131” results “in 0.12 seconds”;4 “Google” search for “Aeck Troutman Sanders Georgia Power” returns “about 98” results “in 0.44 seconds”;5 and “Google” search for “Aeck Georgia Power” returns “about 865” results “in 0.27 seconds”.6 Rather than state every document Appellant read on the relationships, he points to the results of the research. The Trust for Public Land Georgia Advisory Council consists of: Antonin (Tony) Aeck of Lord, Aeck & Sargent; Patricia Barmeyer of King & Spalding, LLP;7 Ben Harris of Georgia Power Co.; and Wayne Vason of Troutman Sanders, LLP8 Clearly, Judge Hull has reason to disqualify herself. As was stated in Brief Amicus Curiae of 27 Former Chief Justices and Justices In Support of Petitioners in Caperton, et., al., v. At. Massey Coal Company, Inc., et., al.,. On Petition for a Writ of Certiorari to the Supreme Court of Appeals of West Virginia, No. 08–22:

http://www.google.com/search?hl=en&rlz=1B3GGGL_enUS273US313&q=aeck+trout man+sanders&start=0&sa=N 4

http://www.google.com/search?hl=en&rlz=1B3GGGL_enUS273US313&q=aeck+trout man+sanders+georgia+power&btnG=Search 5

http://www.google.com/search?hl=en&rlz=1B3GGGL_enUS273US313&q=aeck+georgi a+power&btnG=Search 6

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Appellant points to Judge Duffey’s past partnership with King & Spalding.

http://www.tpl.org/tier3_cd.cfm?content_item_id=1319&folder_id=249 * Updated 1/2009 8

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On page 7: “Lord MacMillan, Law and Other Things 217-18 (1937). Jerome Frank noted the peculiarly individual factors that can influence decisions: "these uniquely, highly individual, operative influences are far more subtle, far more difficult to get at. Many of them, without possible doubt, are unknown to anyone except the judge. Indeed, often the judge himself is unaware of them." Jerome Frank, Courts on Trial 151 (1950).” On page 8: “But a judge who bases recusal not only on a subjective evaluation of fairness, but also on a more objective appearance of fairness, preserves much more effectively the litigants’ due process right to an impartial judge.” In reality, the relationship between the Judge and Appellees, can and will give the average layperson the appearance of bias/partiality/impropriety; whereas recusal will give the appearance of “fairness” and “much more effectively the litigant’s due process right to an impartial judge.” Judge Hull had a duty to disclose the relationships, as well as a duty to disqualify herself, she failed to do so.

As Chief Justice Rehnquist noted, in his dissent, in Lilyeberg v. Health

Services Acquisition Corp., 486 U.S. 847, 871 (1988): "Subsection (b) of § 455 sets forth more particularized situations in which a judge must disqualify himself. Congress intended the provisions of § 455 (b) to remove any doubt about recusal in cases where a judge's interest is too closely connected with the litigation to allow his participation." Appellees’ page 2: “…proper for a judge to sit in the same case upon remand…”. Judge Becker has supposedly set a hearing for Summary Judgment in

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the Superior Court action.9 As of today’s date, March 3, 2009, the Superior Court has refused to show on the Docket Report Appellant’s Responsive Pleadings filed on February 24, 2009. Appellees’ page 2 continues:

“another deliberate attempt to harass

Appellees and frustrate the resolution of this case”; with *fn1 bringing up Motion to Recuse Judge Becker in Superior Court and Motion to Recuse Judge Duffey in District Court. The Appellees, have involved other parties in a covert attempt to hide the fact that they have already broken the law concerning the Land Registration Act. The reformation that they claim they want performed has already taken place, making them and anyone else involved in manipulating the land documents on file at DeKalb County, criminals.

The Georgia statute and The United States

Constitution are explicit on such actions, statute states any person involved, and US Constitution states that the crime is one for which an indictment is not needed. O.C.G.A. §44-2-43 Any person who: (1) fraudulently obtains or attempts to obtain a decree of registration of title to any land or interest therein; (2) knowingly offers in evidence any forged or fraudulent document in the course of any proceedings with regard to registered lands or any interest therein; (3) makes or utters any forged instrument of transfer or instrument of mortgage or The hearing notice was sent to Appellant, although the “Scheduled Events” on the Docket Report do not reflect a hearing, or the documents filed in Response to Summary Judgment, and other documents filed on February 24, 2009 “Exhibit 1” and the Calendar has yet to be made available. If there are no scheduled events, and a litigant or his attorney(s) do not appear on the Calendar, there is no hearing, period. 9

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any other paper, writing, or document used in connection with any of the proceedings required for the registration of lands or the notation of entries upon the register of titles; (4) steals or fraudulently conceals any owner's certificate, creditor's certificate, or other certificate of title provided for under this article; (5) fraudulently alters, changes, or mutilates any writing, instrument, document, record, registration, or register provided for under this article; (6) makes any false oath or affidavit with respect to any matter or thing provided for in this article; or (7) makes or knowingly uses any counterfeit of any certificate provided for by this article shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than ten years. O.C.G.A. §44-2-44 Any clerk, deputy clerk, special clerk, or other person performing the duties of the office of clerk who: (1) fraudulently enters a decree of registration without authority of the court; (2) fraudulently registers any title; (3) fraudulently makes any notation or entry upon the title register; (4) fraudulently issues any certificate of title, creditor's certificate, or other instrument provided for by this article; or (5) knowingly, intentionally, and fraudulently does any act of omission or commission under color of his office in relation to the matters provided for by this article shall be guilty of a felony and shall be removed from office and be permanently disqualified from holding any public office and shall be punished by imprisonment for not less than one nor more than ten years. The United States Constitution: Amendment 5 - Trial and Punishment, Compensation for Takings. Ratified 12/15/1791: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land … nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

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Because of the parties involved and the amount and kind of criminal activity involved, both the State and Federal RICO acts come into play. Georgia’s RICO Act: Theft By Deception: See Robinson v. State, 198 Ga. App. 431, 433 (401 SE2d 621) (1991). Theft by deception is committed when a person "obtains property by any deceitful means or artful practice with the intention of depriving the owner of the property." OCGA 16-8-3 (a). "A person deceives if he intentionally: (1) Creates or confirms another's impression of an existing fact or past event which is false and which the accused knows or believes to be false; [or] (2) Fails to correct a false impression of an existing fact or past event which he has previously created or confirmed. . . ." OCGA 16-8-3 (b). Although OCGA 16-8-3 (b) (2) does not specifically state that a deceiving person must "know[ ] or believe[ ]" an impression is false, that state of mind is implicit in the requirement of OCGA 16-8-3 (b) (2) that a deceiving person "intentionally" fail to correct a false impression; without knowledge or belief that an impression is false, there can be no intentional failure to correct it. Deceit does "not, however, include . . . exaggeration by statements unlikely to deceive ordinary persons in the group addressed." OCGA 16-8-3 (c). Under Georgia Law, the charge for “using a false document does not apply on the one who prepared the document: “We agree with the State that the Court of Appeals erred when it held that a charge of "using" a false document under OCGA 1610-20 applies only to a person who uses a false document that was prepared by another.” State v. Johnson, supra at 837 State v. Luster, 204 Ga. App. 156, 158 (1) (a) (ii) (419 SE2d 32) (1992). Even construing OCGA 16-10-20 strictly against the State, see generally Jowers v. State, 225 Ga. App. 809 (2) (484 SE2d 803) (1997), the language therein unambiguously prohibits an individual from making or using any false writing or

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document, without regard to the identity of the individual who initially made or subsequently used the false document. The Appellees in this matter have been in an intertwined conspiracy in their covert attempt to hide the fact that they have broken numerous Georgia and United States criminal laws.

The following statement from Appellees’ Response is

another fine example of what Appellant has had to endure throughout both Superior Court and US District Court duration: “Appellant’s Motion seems to provide more of a platform for voicing his political views…” Appellees would have one believe that all the procedural, technical, legal violations by these Appellees are from Appellant’s voicing his “political views”?; and that the following are “political views”: the Constitutions of Georgia and the United States; statutes concerning real property and the use of fraudulent land documents; the Civil practice acts; Due process of law; ADA Title II; meaningful access to the Courts; wanting to be treated equally; violations of Oaths of Office. Appellant doesn’t believe he has ever heard of anything so ludicrous. One could safely assume that the outcome of the Summary Judgment as well as the outcome of this Appeal has been pre-determined. Appellees bring up Motion to Recuse Judge Becker, who participated in the covert action to hide the fact that the law has already been broken; and who has consistently violated Appellant’s Rights, refused to take steps mandated by Georgia

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statute concerning real property, ignored a “protective” Motion to Stay, and allowed opposing counsel to take over and manipulate the Court system. Appellees bring up the Motion to Recuse Judge Duffey as well, Judge Duffey violated Appellant’s Rights as well, and went further, violating Appellants First Amendment Rights claiming that Appellant and Ms. McDonald had been “sued by Wachovia for fraud”10, a total lie; Judge Duffey’s Order stating that was a mean, irrational display to cast a criminal shadow upon the Appellant. Further, the time for to resolve the matters between Georgia Power and Appellant was long ago, they refused to do so, instead they involved other individuals in their covert conspiracy to steal land from the homeowners on Sheppard Road by using a fraudulent easement document signed by a man that never existed. When Appellant continued to insist the document did not pertain to his property, Georgia Power had the document manipulated and put into County records, see “Exhibit 2” The proof of this is that they want a “Reformation”11 of the handwritten document, show they want Land Lot changed from 13 to 73 and the spelling of the road in the reformation request is Shepherd Rd, the exact same spelling that is on the Certified land document obtained from DeKalb County. The opposing attorneys in both the Superior Court action and the District Court action are not so stupid that they have not noticed the proper spelling of Sheppard Rd. Judge Duffey’s Opinion and Order Dismissing the case, pg. 2 fn1, 2nd ¶ 11 Defendant’s First Amended Answer and Counterclaim Superior Court 10

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There is no other logical explanation to have the road still misspelled, they cannot afford for the attached Certified Document to come into play. Just as the hired “land document examiner” whose Affidavit is being used in Superior Court for their Motion for Summary Judgment, did not find the document, that Appellant has attached a Certified copy of from DeKalb County? So, the Appellees have shown that they continue to break the law to cover up their crimes, Judge Becker has refused to act against the crimes, District Court joined the conspiracy when that Court refused to act.

There is no better

explanation Appellee has for all of these Appellees to object to a Motion to Recuse a Judge that they have personal ties with except….they know the outcome if all parties stay in place.

Appellees need look only to themselves as the ones who

have harassed, and frustrated the resolution. Since this Court refused to appoint counsel to assist Appellant, Appellant will be practicing Abundans cautela non nocet. Appellant truly believes that had counsel been appointed, there would not be further violations of his Rights. Furthermore, the Courts in Georgia have made it clear, they do not care about disabled or pro se litigants and have a total disrespect for both. Courts in Georgia have consistently violated the Rights of the disabled, and granted immunity to the state; see US v. Georgia, 126 S. Ct. at 882 in which The United States Supreme Court reversed the 11th Circuit’s decision in it’s entirety and

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remanded the case. In Georgia, the Supreme Court included instructions to lower courts as to how Eleventh Amendment Immunity and Title II should be handled, Georgia, 126 S. Ct. at 882; the Supreme Court mandated the proper procedure for dealing with disabled pro se litigants, ADA Title II, and the State’s immunity. Appellant’s Appeal in Stegeman v. Georgia was not handled by either District Court or this Court according to what The U.S. Supreme Court had instructed in US v. Georgia. The Supreme Court in Lane, 541 U.S. at 523-528 teaches 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 of the Fourteenth Amendment; accord Constantine, 411 F.3d at 486-487.

Title II

enforces the Equal Protection Clause’s prohibition of arbitrary treatment based on hostility, or “mere negative attitudes”, University of Ala. v. Garrett, 531 U.S. 356, 367 (2001); to private biases, Palmore v. Sidoti, 466 U.S. 429, 433 (1984). Upon violating Title II in Stegeman v. Georgia, the Court decided Title II unconstitutional. At that point the Court had a duty to contact the U.S. Attorney General to inform him that Title II was unconstitutional and/or that Congress lacked authority under the Constitution to enact Title II.

The U.S. Attorney

General has a right to intervene in cases where the Constitution is challenged, or when Congressional authority comes into question.

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Violation of Title II makes the bias/prejudice personal; and the relationship between Judge Hull, Mr. Aeck, Georgia Power, Troutman Sanders, King & Spalding is not something that the Judge learned from the case. Appellees complain about harassment and that Appellant is frustrating resolution of the case, Appellees may as well resign themselves to the fact that if necessary to protect his property, his Rights, and attempt to have the issues in the case properly decided, Appellant will go The United States Supreme Court, whether or not it meets with Appellee’s approval.

Respectfully Submitted this 4th day of March, 2009,

By: _____________________________ JAMES B. STEGEMAN, Pro Se 821 Sheppard Rd Stone Mountain, GA 30083 (404) 300-9782

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UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _______________________________________ JAMES B. STEGEMAN, Plaintiff/Appellant

APPEAL NO. 08-16174-C DISTRICT COURT NO. 1:08-CV-1971

Vs.

REPLY TO APPELLEES’ RESPONSE MOTION

APPELLANT’S TO RECUSE SUPERIOR COURT, et., al., Defendants/Appellees ______________________________________________________________ CERTIFICATE OF SERVICE

I Certify that I have this 4th day of March, 2009 served a true and correct copy of the foregoing Appellant’s Reply to Appellees’ Response to Appellant’s Motion To Recuse upon Defendants/Appellees, through their attorneys on record by causing to be deposited with the U.S.P.S., First Class Mail, proper postage affixed thereto, addressed as follows: Daniel S. Reinhardt Troutman Sanders, LLP Bank of America Plaza – Suite 5200 600 Peachtree Street, NE Atlanta, GA 30308-2216

Devon Orland State of Georgia Dept. of Law 40 Capitol Square, S.W. Atlanta, GA 30334-1300

_______________________________ JAMES B. STEGEMAN, Pro Se 821 Sheppard Rd Stone Mountain, GA 30083 14

(404) 300-9782

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