Difference between revisions of "Georgia Governor repeats mistake of former governor Roy Barnes, but did Kemp have a choice?"

The Honorable Robert E. Flournoy, III,  was appointed to the Cobb County Superior Court bench by Governor Roy E. Barnes on July 14, 2000 and was elected without opposition in 2002, 2006, 2010, 2014 and 2018. He was named "Cobb County Judge of the Year" in 2005 and was the recipient of the "Jimmy Berry Champion of Justice Award" in 2015. Judge Flournoy retired on December 31, 2022 and has since been appointed as a “Senior Judge” of the Superior Courts of Georgia by Governor Brian Kemp. This appointment is of course not without controversy. Under Georgia law, "Senior judge status . . . shall be acquired by a qualified former judge's applying to the Governor for appointment as senior judge. The Governor shall appoint each qualified applicant as a senior judge." ''See'' [https://law.justia.com/codes/georgia/2021/title-15/chapter-1/section-15-1-9-2/ O.C.G.A. 15-1-9.2]. According to Open Records, Judge Flournoy sent his application for Senior Judge status to Governor Brian Kemp's office on October 24, 2022,<ref>[https://thewikilaw.org/wiki/images/3/3d/Flournoy%2C_Robert_-_Request_-_Cobb_Judicial_Circuit_-_10.24.22.pdf Judge Robert E. Flournoy, III Request For Appointment as Senior Judge]</ref> However, the statute requires an application by a qualified "former" judge and not a judge still presiding during his or her final elected term. That being said, there exists a potential procedural blemish in the initiation of Flournoy's application. Despite this timing issue, Kemp granted Flournoy’s request appointing him as a senior judge on January 4, 2023. Procedural snafu aside, why else might Judge Flournoy lack qualification for senior judge status? To answer that question, perhaps we should understand more about Flournoy’s suspect decisions during his tenure on the bench.

One of Flournoy's most notorious rulings came in 2011 in what may very well be the largest white-collar scandal in Cobb County history. According to an AJC article authored by Margaret Newkirk, Judge Flournoy threw out a 31-count racketeering and theft indictment against former Cobb EMC CEO, Dwight Brown.<ref>https://www.ajc.com/news/local/judge-throws-out-cobb-emc-indictment-citing-courtroom-accessibility/dEdeHrvTkoBAAnS10xiEQI/ Margaret Newkirk, Judge throws out Cobb EMC indictment, citing courtroom accessibility]</ref> Brown at the time was represented by Barnes Law Group, founded by former governor Roy Barnes who appointed Flournoy to the Cobb County Superior Court bench in 2000. Flournoy based his ruling on testimony that the indictment was not returned in a place open to the public as required under Georgia law.<ref>See Sampson v. State, 124 Ga. 776 (1906); Sellars v. State, 113 Ga.App. 510 (1966).</ref>

Flournoy's decision was upheld on appeal by the Supreme Court of Georgia<ref>State v. Brown, 293 Ga. 493, 748 S.E.2d 376 (Ga. 2013)</ref> based on the testimony of another Cobb County Superior Court Judge, George H. Kreeger, and the following three witnesses with close ties to Judge Flournoy and former governor Barnes:

* Tyler Browning, Judge Flournoy's first staff attorney, latest campaign chairman and son of long time friend Tom Browning

Despite his personal relationships with Roy Barnes and Tyler Browning, Flournoy did not recuse himself from that case. Judge Flournoy, Judge Kreeger and Tom Browning would years later collectively play a much more sinister roll in what one could reasonably perceive as a form of "[https://thewikilaw.org/wiki/index.php?title=The_Lion%27s_Den child trafficking]" enabled by the Cobb County Judiciary. That case is known to some as "The Lion's Den."

A dangerous loophole exists in the “new” Equitable Caregiver Act, which was enacted in 2019. This was most notably made known in 2021 when a combination of judges and attorneys, including Judge Flournoy, Judge Kreeger and attorney Tom Browning, enabled the placement of a 15-year-old girl (now 17) into the home of a 42-year-old unmarried man, not blood related to her and who had a history of [https://thewikilaw.org/wiki/images/1/1b/Cobb_Superior_21101795_Affidavit_Redacted.pdf abusing the mother]. Here is an excerpt from the “The Lion’s Den” article published on the [https://mcmasterforcobb.com/why-matt mcmasterforcobb.com] website:

The Georgia Assembly identifies certain situations that leave some individuals vulnerable to the will and desires of others (e.g., school teachers, psychiatrists, law enforcement, etc.), and it is clear that Georgia sexual assault laws are created for the very purpose of deterring the exploitation of vulnerable individuals.<ref>Improper Sexual Contact – [https://law.justia.com/codes/georgia/2021/title-16/chapter-6/section-16-6-5-1/ O.C.G.A. § 16-6-5.1]

In 2009, Christian Boone of The Atlanta Journal-Constitution (AJC) authored an article entitled ''It’s gross, but it ain’t illegal: Judge says teacher not guilty for having sex with student.''<ref>[https://www.ajc.com/news/local/gross-but-ain-illegal-judge-says-teacher-not-guilty-for-having-sex-with-student/Uob206vfJYQuOOtNcpID7K/ Christian Boone, Atlanta Journal-Constitution (AJC), ''It’s gross, but it ain’t illegal: Judge says teacher not guilty for having sex with student'' (2009)].</ref> The article discusses how Judge Flournoy issued a directed verdict to bypass the jury in a case against a 36-year-old Marietta High School teacher who admitted to having a sexual relationship with a 17-year-old student. "It's gross, it's awful, but it ain't illegal," said Flournoy according to the article. "This was a consensual relationship."<ref>[https://www.ajc.com/news/local/gross-but-ain-illegal-judge-says-teacher-not-guilty-for-having-sex-with-student/Uob206vfJYQuOOtNcpID7K/ Christian Boone, Atlanta Journal-Constitution (AJC), ''It’s gross, but it ain’t illegal: Judge says teacher not guilty for having sex with student'' (2009)].</ref> The prosecutor in the case, Maurice Brown, argued that the teacher used his position to take advantage of a romantically naive teenager. "He led her to believe he was in love with her . . . . He led her to believe she was in love with him."<ref>[https://www.ajc.com/news/local/gross-but-ain-illegal-judge-says-teacher-not-guilty-for-having-sex-with-student/Uob206vfJYQuOOtNcpID7K/ Christian Boone, Atlanta Journal-Constitution (AJC), ''It’s gross, but it ain’t illegal: Judge says teacher not guilty for having sex with student'' (2009)].</ref> Navigating Justice consulted with Marietta Attorney, Matt McMaster regarding the shortcomings of Georgia's child protective laws, past, present and future, and here was his breakdown:

In the face of his notoriety, the Judicial Qualifications Commission (JQC)<ref>''The Judicial Qualifications Commission was created by Constitutional Amendment in 1972, then reconstituted by Constitutional Amendment in 2016, to conduct investigations and hearings with respect to complaints of ethical misconduct by Georgia judges. The Commission is also authorized to issue Advisory Opinions regarding judicial misconduct.'' Read more at [https://gajqc.gov/ gajqc.gov].</ref> has not yet shown itself as attempting to deter Flournoy. “The reality is if our judges respected the JQC, we wouldn’t have so many problems with our judiciary,” said McMaster, who has publicly been one of Cobb Judiciary's biggest critics as of late. “[Flournoy’s] decisions and influence have already enabled dangerous situations and there is no reasonable expectation that he will change his philosophy or habits once he is a senior judge. Senior judges are responsible for handling sensitive matters such as temporary restraining orders for stalking and abuse and emergency matters related to child custody. Flournoy has a reputation of succumbing to his ego, deferring his judgment to his friends, and not impartially considering the facts of a case. We can't have this with our senior judges.”  

Navigating Justice sent a request for comment to the JQC regarding the subject matter of this article on January 10, 2023. The recent Director of the JQC, Chuck Boring, resigned on or about January 17, 2023. Deputy Director Courtney Veal declined to provide a specific response to inquiries by and through a letter dated January 24, 2023, a copy of which is available here.  

Did Governor Kemp have a choice? Recall that the applicable law states: "The Governor shall appoint each qualified applicant as a senior judge." All things considered, the pivotal issue is whether or not Flournoy was a "qualified applicant" at the time of his appointment. While reasonable minds may differ, there is strong argument to say that Judge Flournoy was not qualified and that Kemp made an honest mistake in appointing Flournoy as a senior judge. The residual question remains: How will Kemp address his error? Time will tell...

- Matthew D. McMaster (2022)

Jan 30, 2023

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