Motion For Reconsideration Of Denial Of Appellant's Motion For Appointment Of Counsel

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

APPEAL NO. 08-16174-CC DISTRICT COURT NO. 1:08-CV-1971 MOTION FOR RECONSIDERATION OF APPELLANT’S MOTION TO APPOINT COUNSEL

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

COMES NOW, Appellant and Moves this Honorable Court to Reconsider Denial of Appellant’s Motion for Appointment of Counsel. This Court, in a single sentence, and without giving reason, Denied Appellant’s Motion for appointment of counsel on January 16, 2009. In Support of Appellant’s Motion to Reconsider Appointment of Counsel It has been long realized by many Pro Se litigants that they are looked upon with bias/prejudice by not only attorneys, but Judges as well. Many times, Pro Se litigants have been subjected to harsher, stricter standards than attorneys; the receive Rulings with no explanations or caselaw; the Court’s Opinions are

“Unpublished”, marked “Do Not Publish”, or contain one sentence rulings, “Motion is Denied”. Immediately after this Court denied appointment of legal counsel, Georgia Power (Defendant/Appellee) in the Superior Court action, filed Motion for Summary Judgment. There had been nothing filed in Superior Court since June 2008. It is evident from the response of denial that Appellees too believe, as Petitioner has stated, that the only way Petitioner in this matter can enforce and protect his Rights is through appointment of legal counsel. Past Case Precedent and Principles of Stare Decisis Past case precedent and the application of the doctrine of stare decisis is essential to the performance of a well ordered system of jurisprudence1. When ruling on Pro Se litigant’s filings, the principles of stare decisis and past case precedent are often ignored; Courts refuse to liberally construe Pro Se pleadings, and fail to hold to less stringent standards; the judicial system fails resulting in manifest injustice and the Courts find in favor of the opposition, who can afford legal counsel. “Courts will go to particular pains to protect pro se litigants … if injustice would otherwise result” U. S. v. Sanchez, 88 F.3d 1243 (D.C. Cir. 1996). An appeal court's panel is "bound by decisions of prior panels unless an en banc decision, Supreme Court decision, or subsequent legislation undermines those decisions." United States v. Washington, 872 F.2d 874, 880 (9th Cir. 1989). 1

(Citations omitted.) Etkind v. Suarez, 271 Ga. 352, 357 (5) (519 SE2d 210) (1999). 2

"Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right" (Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 52 S. Ct. 443, 76 L. Ed. 815 [1932]). Title 28 U.S.C. §1915(d) provides that in forma pauperis cases, "[t]he court may request an attorney to represent any such person unable to employ counsel. . ."

In Dreyer v. Jalet, 349 F.Supp. 452, 486 (S.D.Tex.1972), affirmance order, 479 F.2d 1044 (CA5 1973) it was held: "[I]f a civil action brought by an indigent acting pro se, including prison inmates, has merit … then counsel should be appointed to properly present the claim." In Bounds v. Smith, et., al., 97 S. Ct. 1491, 430 U.S. 817 (U.S. 04/27/1977), 52 L. Ed. 2d 72, (1977) [ 430 U.S. Page 826] it was stated: “If a lawyer must perform such preliminary research, it is no less vital for a pro se prisoner. Indeed, despite the ‘less stringent standards’ by which a pro se pleading is judged”, Haines v. Kerner, 404 U.S. 519, 520 (1972). The United States Constitution and State of Georgia Constitution The Fifth Amendment says, "No person shall...be deprived of life, liberty, or property, without due process of law." The Fourteenth Amendment says, "no state shall... deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." "Both the Georgia and United States Constitutions prohibit the state from depriving `any person of life, liberty, or property, without due process of law.' 3

United States Const., amend. XIV, sec. 1; see also Ga. Const., [Art. I, Sec. I, Par. I]. The fundamental idea of due process is notice and an opportunity to be heard."2 As stated in Citizens & Contractors. Bank v. Maddox, *fn2 "[t]he benefit of notice and a hearing before judgment is not a matter of grace, but is one of right." "A party's cause of action is a property interest that cannot be denied without due process. (Cit.)" In RE Law Suits, 235 Ga.App. 551, 510 S.E.2d 91 (Ga.App. 12/02/1998). Wilhelm H. Joseph Jr.3: Justice system should be equal for rich and poor 2006-07-12; explained: “Effective participation in the system of justice requires the assistance of competent counsel, which is usually beyond the financial capacity of … Americans in general.” In Frase vs. Barnhard, a 2003 case seeking to create a right to counsel in critical civil cases, a judge on Maryland’s highest court wrote, “[I]t is my belief that there is no judge on this Court that believes in his or her heart or mind that justice is equal between the poor and the rich — even in the tradition-hallowed halls of our appellate courts.” It would be a great day when we get past the fear expressed in the 2001 State of the Judiciary speech by California Court of Appeals Chief Justice Ronald O.C.G.A. §9-15-2 (d) Wilhelm H. Joseph Jr. has served as executive director of the Legal Aid Bureau of Maryland since 1996. Previously he was director of the legal support unit at Legal Services for New York City. A law graduate of the University of Mississippi and Harvard’s JFK School of Government, Joseph is the immediate past chair of the Legal Services Project Committee of the American Bar Association Section of Litigation. 2 3

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George: “If the motto ‘and justice for all’ becomes ‘and justice for those who can afford it,’ we threaten the very underpinnings of our social contract.” “The gap between civil legal needs and available services has been well documented. A 1993 American Bar Association study showed that 70 percent of poor people could not obtain legal help for their serious legal problems. Many follow-up studies suggest the number is closer to 90 percent. As a consequence, poor people largely cannot enforce what rights they have.” 4 “Although lay litigants are no better able to navigate the legal system in civil cases than in criminal ones, the simple logic of Gideon v. Wainwright, 372 U.S. 335 (1963), has yet to be applied in the civil arena. In Gideon, the U.S. Supreme Court required that counsel be appointed for criminal defendants because “the right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.” Id. at 344–45. Eighteen years later, the Supreme Court in Lassiter v. Dep’t of Social Services, 452 U.S. 18 (1981), acknowledged that federal due process does at times require appointment of counsel in civil cases.”

“Indeed, creative litigation and legislative efforts are underway in

California, Georgia, Maryland, New York, Texas, Washington, and Wisconsin to recognize the right to civil counsel.” 5 A Civil Right to Counsel for the Poor By Paul Marvy and Debra Gardner. http://www.abanet.org/irr/hr/summer05/counsel.html. 4

Paul Marvy works as project coordinator for the Committee for Indigent Representation and Civil Legal Equity, a group of equal justice advocates seeking recognition of a civil right to 5

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CONCLUSION Appointment of counsel in this matter would ensure that Petitioner would be able to properly present his case to this Appellate Court. The Appellees all have excellent representation. The Supreme Court has recognized that at times in civil cases, the only way for an Appellant to be afforded proper protection of one’s rights, legal counsel must be appointed. Appellant prays this Court will reconsider it’s denial, and appoint legal counsel. Submitted this 29th day of January, 2009 By: ___________________________ James B. Stegeman, Pro Se 821 Sheppard Rd. Stone Mountain, GA 30083 (404) 300-9782

U. S. COURT OF APPEALS FOR THE ELEVENTH CIRCUIT CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT

counsel in civil cases in Washington State. Debra Gardner serves as legal director of the Public Justice Center and coordinates the National Coalition for a Civil Right to Counsel. To find out more about the national coalition, contact Debra at [email protected]. 6

James B. Stegeman, et.,al., vs. Superior Court, et.,al., Appeal No. 08-16174-C Pursuant to and in compliance with The U.S. Court of Appeals For The Eleventh Circuit Rule 26.1-1, General Order 34 amending Eleventh Circuit Rules 26.1-2 and 26.1-3, Plaintiff/Appellant submits his Certificate of Interested Persons and Corporate Disclosure Statement: Baker, Thurbert A. (Georgia Attorney General) Becker, Judge Cynthia J_______________________________________________ Duffey, Jr. Judge William S. (United States District Court) Farrow, Scott A. (Defendant) Georgia Power Company (Defendant) McDonald, Janet D. (Plaintiff) Orland, Devon (Attorney – Defendants Superior Court/Judge Becker) Reinhardt, Daniel S. (Attorney – Defendants Georgia Power, Farrow, Watt) Troutman Sanders LLP (Law Firm ) Southern Company (Owner of Georgia Power Co.) State of Georgia Superior Court (Defendant) Stegeman, James (Plaintiff)____________________________________________ Appeal No. 08-16174-C, James B. Stegeman, et.,al., vs. Superior Court, et.,al.,

Watt, Brian P. (Defendant 7

CERTIFICATION I, James B. Stegeman the Plaintiff/Appellant, hereby Certify that to the best of my knowledge and belief, that the above Certificate is complete. I understand my obligations to include and or omit persons and or entities in future Certificates and my obligations to abide by 11th Cir. R. 26.1-2 and 11th Cir. R. 26.1-3 concerning future Certificates.

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

U. S. COURT OF APPEALS FOR THE ELEVENTH CIRCUIT CERTIFICATE OF SERVICE

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James B. Stegeman vs. Superior Court, et., al.,

Appeal No. 08-16174-C

I Certify that I have this 29th day of January, 2009 served a true and correct copy of the foregoing Motion For Reconsideration of Appellant’s Motion For Appointment of Counsel 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 (404) 300-9782

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