Routine Traffic Court Case Becomes Challenge to DeKalb DA's Power
Lawrence Viele Davidson, Daily Report Click here to go to original story
A routine traffic ticket case on Wednesday became a constitutional challenge to DeKalb County District Attorney Robert James' authority to prosecute such offenses.
Defense attorney Troy Hendrick, whose client Kevin Lynch was charged with going 85 mph in a 55-mph speed zone, filed a motion in DeKalb Recorders Court asking the judge to bar the DeKalb DA's office from further prosecutions there. Legislators gave the authority to the solicitor general's office, Hendrick said in his motion. The state constitution does not empower district attorneys to prosecute traffic offenses in county court, the motion says.
"We are aware of the filed motion and will enter our official response in the coming days," said DeKalb DA spokesman Erik Burton.
In an interview, DeKalb Recorders Court Chief Judge Nelly Withers called the motion "frivolous" and said that the DeKalb County Commission signed a resolution expressly giving the DA's office power to prosecute in recorders court.
Traffic defense attorneys have complained that assistant district attorneys are recommending harsher sentences than necessary, such as jail time for speeding, since they moved into the court.
Withers said she welcomed the relief. Prior to 2010, recorders court judges served as judge and prosecutor, she said. Withers approached James in 2010, when he served as DeKalb solicitor general, to ask that he prosecute cases in her court, and he agreed to do it, she said. He took the duties with him when he won the district attorney's race that year.
DeKalb Solicitor General Sherry Boston said her office has the authority to prosecute in recorders court.
"I did not authorize any other office to prosecute misdemeanor cases on behalf of the state of Georgia," she said in a written statement. "I cannot comment on the facts or possible outcome of this pending motion. While I understand this motion raises issues pertaining to the DA's role in recorders court, I can only speak to the authority of my office. O.C.G.A. § 15-18-66(b)(3) expressly empowers a solicitor general's office to prosecute in recorders court when authorized by local governing authority. I am confident that the issues presented in this motion will be adequately handled by the appropriate courts at the appropriate time."
Hendrick's motion cites the duties of the state's district attorneys as enumerated in O.C.G.A. § 15-8-6, which Hendrick says does not include county traffic court prosecutions. The state constitution does not expressly give district attorneys authority to prosecute county traffic cases, either, the motion says. Withers said the recorders court is considered a municipal court, which means district attorneys have prosecutorial power. Hendrick said she is wrong.
Hendrick asked the Prosecuting Attorneys' Council of Georgia for records it had on the DeKalb DA serving as the prosecuting attorney in recorders court, according to an email obtained by the Daily Report. In the email to Hendrick, Chuck Olson, general counsel for the agency, responded that there were 17 emails on the topic between his office and James. However, they are exempt from the Open Records Act because the council is part of the judicial branch, Olson said in the email to Hendrick.
DeKalb County Recorders Court is not recognized as a municipal court under one section of Georgia law, Olson's email said, a position apparently at odds with that taken by Withers.
"Because the Recorder's Court of DeKalb County is not a municipal court established pursuant to O.C.G.A. § 36-32-1, and DeKalb County is not a municipality of this state, O.C.G.A. § 36-1-1, this agency has no record of an 'ordinance or resolution creating the office of prosecuting attorney for a municipal court' known as the Recorder's Court of DeKalb County," the June 16 email says.
When asked by the Daily Report to say whether the DA can prosecute in the DeKalb recorders court, Olson said in an email that he is "legally and ethically" prohibited from giving what he considers to be a legal opinion. He also said the council does not comment on pending litigation.
Recorders court Judge LaTisha Dear set a hearing on the motion for June 30, Withers said.
Hendrick objected to Withers' characterization of his motion.
"I find it highly irregular for the chief judge of the court in which this motion is pending, but has not yet been heard, to make comments regarding its efficacy in the court of public opinion before any evidence has been taken on the matter," Hendrick said. "It is a disconcerting to say the least, and I am now forced to consider a motion to ask the judges to recuse themselves in this matter."