House Speaker Delay

Ed. Note: This is a guest post by Roswell, Georgia, lawyer Charles Landrum, addressing the story raised by the Atlanta Journal-Constution about criminal defense lawyer and Georgia Speaker of the House, David Ralston. alleging abuse of his office for the benefit of his clients.

The annual Georgia legislative session lasts 40 days, from January to March. In 1905, the Georgia legislature passed a law that gives attorney-legislators the right to delay “any act” in a case in which they represent a party for so long as the legislature remains in session. O.C.G.A. § 17-8-25(a) does the magic in criminal proceedings. O.C.G.A. § 9-10-150 grants the same magical powers in civil proceedings.

A 40-day delay in a court case so that a duly-elected representative of the people has the opportunity to fulfill their legislative duties makes sense. Cases get delayed all the time; what’s another month and a half? A judge in Savannah or Augusta can wait on the Gold Dome in Atlanta.

But what if you could make this power infinite and delay cases indefinitely?

In 2010, the statutes were amended to add the following:

A continuance and stay shall also be granted for such other times as the member of the General Assembly or staff member certifies to the court that his or her presence elsewhere is required by his or her duties with the General Assembly.

So with this powerful tool in hand, here’s how it plays out in practice:

When a north Georgia mother learned the man accused of raping her 14-year-old daughter was arrested and indicted by a grand jury, she thought a trial would come soon after. More than six years after the alleged crime, there’s no court date in sight.

“I had no idea at that point that, all these years later, that we would have so many trial dates that had been canceled,” she told Channel 2 Action News and our investigative partners at The Atlanta Journal-Constitution and AJC.com. “Every time we get our hopes up to get some release from the past and to be able to move on, you know, it’s always a setback.”

A setback because the man accused of her child’s rape hired Georgia Speaker of the House David Ralston to be his lawyer. Since then Ralston has delayed the rape case at least eight times because he said he’s too busy to go to court, according to court documents.

Here’s another example:

Another Ralston client is David Shell, who is accused of assaulting Jydon Carpenter in 2014. Shell has been arrested for domestic violence at least four previous times.

“Right now, I just want closure,” Carpenter said.

Ralston has become well-known for his delay tactics:

Everyone says, hire him, you’ll never go to court. People talk. This is a small town.

So that’s what defendants do:

Shell said he knew Ralston’s legislative duties would keep him out of court. Shell told the reporter “that’s why I gave him 20,000 bucks… he’s worth every penny of it.”

Even his own civil clients use him despite knowing his apparent penchant for delay, as recounted in the Special Master’s report recommending voluntary discipline against Ralston for violation of other bar rules—but not for any delays in the case:

“When I confronted him on it [delay], his [Ralston’s] comment was, ‘If you don’t like it, fire me.’” Mr. Chernak recounted the same basic conversation in his initial grievance. The Chernaks knew of the constraints on Mr. Ralston’s time and their option to hire a new attorney if dissatisfied. With this knowledge, they chose to stay with Mr. Ralston.

The easy reaction for a lay person is to get angry at Ralston. And to a certain extent, they’d be right:

For a century, elected lawmakers who make their living as attorneys could only cite the law to delay court while the General Assembly was in session and for three weeks after. But in 2006, lawmakers in the House and Senate passed Senate Bill 503, which expanded the privilege to cover any time a lawmaker’s “presence elsewhere is required.”

Originally, the bill dealt with unrelated legal issues, then passed through the House and Senate in different forms. On the final day of that year’s session, then-House Speaker Glenn Richardson named Ralston, then a state representative who chaired the House Judicial Non-Civil Committee, to a joint conference committee to work out the differences between the House and Senate versions.

Although it is unknown what role Ralston played in conference negotiations, the legislation that emerged included the language that Ralston, who became speaker in 2010, would later apply to his own law practice. It came before the House for approval just 90 minutes before the session’s required end at midnight, passing in the House 158-2, then in the Senate unanimously.

In other words, Ralston effectively wrote the law that he now uses to the benefit of his clients, leaving numerous cases in limbo and seeming destined never to be tried.

One legislator is calling for Ralston to resign. A handful of others have joined. Others want the Georgia State Bar to sanction him. Debbie Dooley of the Atlanta Tea Party thinks we should attack the Republican party because Ralston represents “bad” criminals:

They [the Republican leadership] rubber stamp him protecting accused child molesters and rapists and those that like to beat up women. … is that really what Republicans in the Georgia House really want to stand for?

Over at the Georgia Criminal Appellate Law Blog, Scott Key points out the fallacy of this attack, but then he argues that these continuances should pose no problem:

Judges and prosecutors serve a pivotal role in the scheduling and pace of a case from indictment to conclusion. And I cannot stress enough that we have an adversarial system. Frequently, the state and defense counsel argue motions to continue matters. And even when the defense and the prosecution agree to continue cases, the judge may ultimately decide whether a case proceeds to trial in a way that makes neither side happy. Every trial lawyer has a set of war strories [sic] on this topic.  Additionally, there are tools available where the parties, for whatever reason, have difficulty getting a case resolved.

My “war story” involving opposing a continuance is not much of a story: I opposed based on a violation of the procedures for requesting a continuance under a different rule, as it appeared that he was requesting the continuance to the detriment of my client. The opposing lawyer responded, shocked that another Georgia lawyer would oppose a continuance. But he agreed that his co-counsel would cover the trial.

Here, there is no such requirement that the legislator-attorney explain or justify the reason for the delay or that co-counsel cover the case in their absence. There isn’t really even any process to speak of. The attorney-legislator merely informs the court that “his or her presence elsewhere is required.” After that, the judge’s hands are tied: “A continuance and stay shall also be granted…”

On what basis is a prosecutor going to object? Mr. Key doesn’t say. And what prosecutor is going to go on record showing how impotent they are against the defendant’s attorney? Certainly not Appalachian Circuit District Attorney Alison Sosebee:

“[A]s quickly as these cases can be tried would certainly be ideal.” “I believe if there was a concern about a case being unnecessarily delayed, that my office or the judges would address that through the proper legal channels,” she said. Asked if she’s ever had such concerns about Ralston’s delays, the DA said, “I’m not going to answer any more questions at this point.”

It’s hard to blame her: “Your honor, we vehemently object. This is the seventh delay in this case from 2009. We really need to go to trial.” “The statute says ‘shall.’ I don’t make the law. Sorry.”

Debbie Dooley is wrong that Ralston is “bad” because he delays cases on behalf of his clients. He is using the tools available to him—albeit tools he created.

Scott Key is also wrong. This is a problem, and it needs to be fixed. There are no mechanisms available to challenge the delay. Ralston apparently made sure of that when he passed it:

There had been an earlier attempt that year to alter the legislative leave law. Former GOP Rep. Ed Lindsey filed a bill expanding leave to include committee meetings held outside of session. His bill also required the legislator-lawyer to give “the specific basis for the continuance and stay.”

The law that passed out of Ralston’s conference committee has no such requirement and did not limit leave to committee meetings.

Abolish the law. If not in its entirety, at least remove the language Ralston had a hand in adding that makes indefinite this magical power of delay. Whatever you think of the meaning of the word “justice,” it cannot exist in a state where the courts can be controlled by one legislator-attorney’s agenda. It appears Ralston is finally getting that message.

11 thoughts on “House Speaker Delay

  1. California 1L

    Back in the day Willie Brown (former Speaker of the House in California) made a fortune exploiting California’s version of this law.

    1. SHG Post author

      Was he wrong to exploit it, or was it wrong not to repeal or amend knowing that it was being exploited? And as long as it’s there to be exploited, is it wrong to make a fortune on it?

      1. Richard

        Even without the fortune, wouldn’t there be a duty to exploit it (as long as the certification could be made truthfully) if it benefits one’s client?

        1. SHG Post author

          Absolutely. If it’s within the bounds of the law, it would be unethical not to use it to your client’s benefit.

          1. Charles

            Here’s Speaker Ralston addressing the issue on the floor of the state house:

            https://www.dropbox.com/s/7d10w1tlxq6te68/Speaker%20Ralston%202.25.19.mp4?dl=0

            I find the bit about not being around in 1905 thoroughly disingenuous, as it is the amendments with which he was involved that are the primary issue, not the original 1905 law. He also takes great care to state that he has not done anything illegal or unethical.

            As far as his role as an attorney, I am inclined to agree. But as a legislator, he’s no true statesman. However, he is correct that the AJC went for the sensational over the substance.

  2. D-Poll

    I’m finding myself unable to locate a “problem” here. This is exactly the rightful position of the legislature in defining the circumstances under which the wheels of “justice” are allowed to grind. Of course it goes without saying that this “one legislator-attorney” didn’t come in after-hours to slip this into the lawbooks without anyone noticing; he may be responsible for the language, but the rest of the legislature (and presumably the governor, though I can’t seem to confirm whether or not the law passed over a veto) passed it, even if they regret it the morning after. I shouldn’t need to stipulate, then, that the legislature could, if they wanted it badly enough, abolish state crimes in Georgia altogether, which would certainly be a fair sight more of a case of “controlling the courts”. In all honesty, I wish they would, just to see what it’s like.

    1. Charles

      You’re looking in the wrong place. The isn’t is whether the legislature “can” do this; the issue is whether it should have done it. In my view, it shouldn’t have. But then, there are a lot of laws that pass state legislatures that shouldn’t.

  3. John Barleycorn

    “No man’s life, liberty or property are safe while the Legislature is in session.”

    Holy Bouncy Boiler Plate, Landrum, did Gideon J. Tucker just roll over in his grave?

    Thanks Charles, ’bout time someone around here, got around to serving up some useful information.
    Terrible tragic existence you, officers of the court must portage. Don’t forget to vote….. I guess?!

    P.S. Charles, If our esteemed host had offered up the editing function password to the SJ back pages along with the post invite, you would have surely noted that our esteemed host is not to scribble on his own stall walls while working on his stand-up routine attempting to pen “lawyer jokes” that write themselves right?

    Or, would you have gone with something a bit more subtle like, “Star Chambers outgrow themselves like the trunk of a tree, why attempt to footnote them in codex form, in a forum?

Comments are closed.