ATLANTA (CN) – A judge is expected to rule on a motion to determine whether Fulton County judges can hear a case against Fulton County judges. In a 3-year quest that claims Fulton County is running an illegal, mandatory e-filing system, a group of attorneys went before DeKalb County Superior Court Judge Robert J. Castellani on Thursday to ask that Fulton County State and Superior Court judges be recused.
Shuli Green, one of two plaintiffs’ attorneys in McCurdy et al. v. Fulton County and Lexis-Nexis Courtlink, said that Fulton County judges should not be a part of the case as “all would be directly affected by the outcome of the litigation.”
Green said that “actual impropriety or the appearance of impropriety” was at issue as well.
Herb Shellhouse, representing Fulton County, said the motion should be denied, as the supporting affidavit did not “clearly state the facts and reasons for the belief that bias or prejudice exists, being definite and specific as to time, place, persons and circumstances of extrajudicial conduct or statements.”
Shellhouse added that “two of the judges were not even on the bench on June 1, 2006 when the e-filing system started.”
Shellhouse also said the motion was premature, as the judges are not parties to the lawsuit.
But Green argued that Shellhouse misconstrued the law. He said judges need not show actual bias, that even the appearance of bias is sufficient.
Green claimed that the e-filing system is unconstitutional, unauthorized by Georgia law, and ultra vires.
Shellhouse said the complaint was untimely and that he expects to be “vindicated if the case is not thrown out.”
The lawsuit, filed on Jan. 6, is the fourth claim against Fulton County and Reed Elsevier, owner of Lexis-Nexis Courtlink.
Green and Steven Newton represent W. Phillip McCurdy III, Michael Cawthon, Nelson Picklesimer, Kenneth Clowdus as administrator for the estate of Kenneth Larry Clowdus and The Best Jewelry Manufacturing Co.
The Fulton County Superior Court case was originally filed in May 2009, then voluntarily dismissed and refiled on Jan. 6.
It states: “This class action arises from an illegal scheme enacted by defendant Reed Elsevier Inc. dba Lexis-Nexis Courtlink Inc. and defendant Fulton County to impose an unlawful, mandatory e-filing system upon litigants in Fulton County State and Superior Court and to charge excessive and unauthorized fees in connection therewith. Defendant Fulton County has participated in the illegal scheme by promulgating a ‘pilot program’ authorizing Lexis’ unlawful mandatory e-filing scheme and excessive fees without the statutory authority to do so,” according to the complaint.
Newton filed a similar lawsuit against Lexis-Nexis Courtlink and Fulton County in Federal Court. He filed the original federal claim in December 2007 but withdrew it in March 2008, then refilled it in June 2008.
That case was dismissed in March 2009.
In the dismissed case, the other defendants were Mark Harper, chief clerk of the Fulton County State Court; A.L. Thompson, Fulton County State Court chief judge; Doris L. Downs, Fulton County Superior Court chief judge; and Cathlene “Tina” Robinson, clerk of the Fulton County Superior Court.