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Misconduct Report: November 2014

Leah Ward Sears

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Leah Ward Sears is the former Chief Justice of the Georgia Supreme Court. She served on the court from 1992 until June 2009. Sears became the court's chief justice in June 2005. After Sears' final day on the court, Carol Hunstein was elevated to serve as chief justice.[1]

In August of 2009, Sears will begin a one-year fellowship with the William Thomas Sears Distinguished Fellow in Family Law for the Institute for American Values. The fellowship is named for her brother who died in 2007 after returning from service in the Middle East. Sears will teach a seminar, "Contemporary Issues in Family Law," at the University of Georgia Law School while on her fellowship. In October of 2009, Sears will begin working in the Atlanta offices of legal firm Schiff Hardin.[2]

Justice Sears has a distinguished position in Georgia's history. She was the first African-American woman to serve as Superior Court Judge in Georgia. When appointed by the Governor of Georgia in February, she became the first woman and the youngest person ever to serve on Georgia's Supreme Court. Also, in retaining her appointed position as a Supreme Court Justice, Justice Sears became the first woman to win a contested state-wide election in Georgia.

Career

Sears is a 1976 graduate of Cornell University (B.S. Degree); a 1980 graduate of Emory University School of Law (J.D. Degree); and a 1995 graduate of the University of Virginia School of Law (LL.M Degree). She also has engaged in extensive studies at the National Judicial College. Prior to becoming a judge, she was an attorney with the law firm of Alston & Bird. In 1993, Justice Sears received the honorary Doctor of Law degree from Morehouse College.

Associations

Justice Sears' professional and civil affiliations are varied and numerous. The Justice is past Chair of the American Bar Association's Board of Elections. She is also the immediate past Chair of the Judicial Section of the Atlanta Bar Association, and she also served as Chair of the Atlanta Bar's Minority Clerkship Program. Justice Sears founded and served as the first president of the Georgia Association of Black Women Attorneys. Chief Justice Sears serves on the Board of Directors of the Morehouse School of Medicine Center for Child Abuse & Neglect, the Board of Visitors of Mercer Law School, the Sadie G. Mays Nursing Home, the Georgia Chapter of the National Council of Christians and Jews, and she is a board member for Mission New Hope, a metropolitan Atlanta area substance abuse coalition. Justice Sears serves on the Cornell University Women's Council, the steering Committee for Georgia Women's History Month, and the Children's Defense Fund's Black Community Crusade for Children. In addition, Chief Justice Sears founded the Battered Women's Project in Columbus, Georgia.

Justice Sears is also a member of the Atlanta Chapter of Links, Inc., and Alpha Kappa Alpha Sorority. The Justice is a member of the American, Georgia, Gate City, Atlanta, and National Bar Associations.

Accolades

Emory University has honored Justice Sears as an "Outstanding Young Alumna" and as the Barkley Forum "Georgia Speaker of the Year". Georgia Trend magazine has honored Justice Sears as one of the "100 Most Influential Georgians," and in 1993 Business Atlanta magazine named her as one of the "Under Forty and on the Fast Track." In 1992, she received the "Margaret Brent Woman Lawyer of Achievement" award from the American Bar Association, the "Drum Major for Justice" award presented by SCLC Women during Martin Luther King Jr. Memorial Week, and she was honored as an "Atlantan on the Move" by 100 Black Men of Atlanta. Also in 1992, Justice Sears received the "Excellence in Public Service" award from the Georgia Coalition of Black Women, and she was named by the YWCA of Greater Atlanta as one of its ten "Outstanding Women of Achievement." In addition, the Justice has written several articles regarding the legal profession which have been published.

Notable cases

First Amendment

  • Sears wrote a dissent in the case of Howard v. State (2000). The majority of the court rejected challenges based on right-to-privacy and first amendment considerations to a Georgia statute that criminalized the solicitation of sodomy. In her dissent, Justice Sears stated that she would have found the statute unconstitutional because it prohibited solicitation of legal (consensual; non-paid for) sodomy. Justice Sears saw this as a “content-based” speech restriction that could have no legitimate purpose because sodomy itself is legal.
  • Sears wrote a dissent in the case of Club Southern Burlesque v. City of Carrollton (1995). The majority concluded that an ordinance placing various restrictions and limitations on strip clubs did not violate the First Amendment because the restrictions were “content-neutral” and the ordinance furthered important government interests unrelated to speech—for example, pernicious secondary effects as documented in studies commissioned by other municipalities. Justice Sears dissented, arguing that City cannot simply reference other cities’ studies to establish its important governmental interest.

Fourth Amendment

  • In Fox v. State (2000), Justice Sears held that the warrantless search of a probationer’s house by a police officer (as opposed to a probation officer) is unconstitutional.
  • Sears wrote a dissent in the case of Reaves v. State (2008). The case involved the legitimacy of a warrant the authorized a search for evidence of murder and cruelty to children. Chief Justice Sears argued that the words “notes” and “papers”, which were listed on the warrant as specific items that could be sought under its terms--"lacked sufficient detail to satisfy the particularity requirement of the Fourth Amendment."
  • Sears wrote a dissent in LaFontaine v. State (1998). Justice Sears would have held an alcohol-check roadblock an unconstitutional search/seizure because, in her view, the particular roadblock allowed individuals officers too much discretion -- “field officers had the discretion to control the time, the place, and the duration of the road block.” At the same time that she argued on the grounds that officers were given too much discretion, she noted that the officers in the case were required by supervisors’ policy to stop every car when they put the road block into effect.
  • Sears concurred with the majority in Franks v. State (1997). When a suspect was booked, the booking officer asked him how he got a bloody wound that the booking officer observed. Majority concluded this question amounted to the illicit practice of "custodial interrogation" and said that no exception from rules governing custodial interrogation can be made for medical questions like this at booking. Sears concluded that booking officer can ask medical questions designed to determine if suspect needs medical attention, but that this question was too broad for any “medical question” exception.

Sixth Amendment

  • Sears dissented from the Gibson v. Turpin (1999). The majority held that, as with non-death cases, there is no federal or state constitutional right to state-appointed and funded counsel for habeas corpus proceedings for murderers sentenced to death. Justice Sears would have found that such a right to appointed counsel exists for habeas proceedings for capital defendants. Justice Sears stated: “The official taking of a human life is the ultimate government exercise of control and power over individual liberty. If it is to be done, it must be done cautiously, dispassionately, soberly, and fairly. And fundamental fairness demands that a condemned prisoner have the benefit of competent counsel [on habeas].”

Eighth Amendment

  • Sears dissented from the majority's opinion in State v. Davis (2008). The Georgia Supreme Court denied (4-3) the second habeas petition filed by a convicted cop-killer. The habeas petition was based on affidavits of supposed witness recantations. In her dissent, Chief Justice Sears acknowledged procedural bars to considering these affidavits but advocated loosening procedural bars where there are claims of innocence in death penalty cases. The United States Supreme Court denied certiorari.
  • In Wilson v. State (2007) Chief Justice Sears held that the Eighth Amendment precluded a ten-year prison sentence for a teenager convicted of child molestation based on act of oral sodomy.
  • Sears dissented from the majority opinion in the case of Wilson v. State(1999). Justice Sears argued that death by electrocution is unconstitutional and inconsistent with evolving standards of decency. Alternatively, she would have held the decision until the United States Supreme Court addressed the issue in a case it was then considering.
  • Justice Sears dissented from every death-by-electrocution decision until a majority of the Georgia Supreme Court declared it violated the Georgia Constitution in 2001. Dawson v. State, 274 Ga. 327 (2001) (concurring). Justice Sears agreed with the majority and held that death by electric chair violates the Georgia constitution.

Due Process

  • Sears dissented from the majority's opinion in Hill v. Head (2003). Justice Sears would have struck down on due process grounds a Georgia law requiring murderers sentenced to death to prove mental retardation beyond a reasonable doubt (in order to escape the death penalty). Justice Sears argued that due process, pursuant to the 14th Amendment, requires that the burden of proof on the murderer be no more than a preponderance of the evidence.
  • Sears dissented from the majority's opinion in Lumpkin v. Johnson (1998). Justice Sears argued to overturn a murder conviction after concluding that the system by which cases are assigned to trial judges is impermissible.
  • Sears dissented from the majority's opinion in McIntyre v. State (1995). Justice Sears argued that the defendant’s murder conviction should have been overturned because a judge was substituted in the middle of trial.
  • Sears concurred with the majority in Powell v. State (1998). The majority concluded that Georgia sodomy statute that criminalized “private, unforced, non-commercial acts of sexual intimacy between persons legally able to consent” infringed on the “right to privacy” implied in the Georgia constitution. Justice Sears concurred to discuss the responsibility of courts to protect constitutional rights against morals legislation from the majority.

General criminal matters

  • Sears dissented from the majority opinion in Morrison v. State (2006) Chief Justice Sears would have reversed conviction of person for drugs and firearms offenses because the State failed to comply with the Interstate Agreement on Detainers. As the Chief Justice recognized, however, the vast majority of State courts have upheld convictions where the IAD is not literally followed.

Taxation

  • Johnstone v. Thompson (2006)[3] In contrast to the majority, which held that using tax dollars collected from a special purpose tax that did not include providing all middle and high school students with laptops, Justice Sears argued in her dissent, along with Justice Melton, that allocating tax proceeds for laptops was not an abuse of discretion.

Election law

  • O'Kelley v. Cox (2004).[4] In contrast to the majority, which held that citizens have no right to invoke the power of the judiciary to enjoin the enactment of a proposed constitutional amendment because the judiciary is vested with the power to determine the constitutionality of legislation, not the constitutionality of resolutions still in the legislative process of enactment. Sears argued in her dissent, along with Justice Benham, that the judiciary has the power to enjoin the proposed amendment because the Georgia constitution prohibits ballot measures that amend the Georgia Constitution in multiple ways under the single subject rule.

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SCOTUS reviews

  • State v. Davis (2008). The Georgia Supreme Court denied (4-3) the second habeas petition filed by a convicted cop-killer based on affidavits of supposed witness recantations. In her dissent, Chief Justice Sears acknowledged procedural bars to considering these affidavits but advocated loosening procedural bars where there are claims of innocence in death penalty cases. The United States Supreme Court denied certiorari.
  • State v. Randolph (2004). Justice Sears joined a 4-3 majority that found that the consent of one resident to search common spaces is not effective when the other resident is present and explicitly refuses consent. The United States Supreme Court affirmed the state Supreme Court majority.
  • Greene v. State (1996). Justice Sears dissented in this capital case. She argued that the dismissal of several jurors who had “qualms” about the death penalty was incorrect. The United States Supreme Court unanimously agreed with Justice Sears and reversed, holding the majority applied an incorrect legal standard for juror dismissals.
  • Reich v. Collins, 1992 and 1993. The Georgia Supreme Court concluded that a state taxpayer could not get a refund for taxes he paid under a valid state tax law that was later invalidated by the Supreme Court. The Supreme Court remanded in light of a recently-decided case requiring such a refund unless the state had a clear and exclusive pre-deprivation procedure for contesting taxes. The Georgia Supreme Court again denied a refund, arguing it had such a scheme. Justice Sears joined a dissent that would have provided a refund. The Supreme Court reversed, saying Georgia’s pre-deprivation scheme was not clearly exclusive, and thus taxpayer must be allowed to pursue a refund action. [See 513 U.S. 106 (1994).]

Georgia Supreme Court review of Sears

During the time that Sears sat as a Superior Court judge, eleven cases in which she rendered a verdict were ultimately reviewed by the Georgia Supreme Court. In three of the eleven cases (or 27% of the time), Sears was reversed.

  • Wright v. Robinson (1993). Superior Court Judge Sears hard concluded that a medical malpractice claimant can voluntarily dismiss a claim and refile it within six months, even when the later filed claim its untimely. The state Supreme Court reversed.
  • Robinson v. State (1991). The Georgia Supreme Court concluded that Superior Court Judge Sears erred by failing to give a “circumstantial evidence” instruction in a case where there was direct evidence of crime, but witness supplying direct evidence had been impeached.

2004 election campaign

In 2004, Justice Sears ran for re-election against challenger Grant Brantley. During the election campaign, Sears was characterized by conservative opponents as an activist judge.[5]

Her campaign spent $553,666 and his spent $264,535.[6]

  • Sears: 745,011, or 62.3%
  • Brantley: 451,320, or 37.7%[7]

The Sears-Brantley election contest was the first in the state to be conducted under rules that allow opposing candidates to discuss legal issues and each other's records. Until 2004, a restriction existed that forbade discussion of candidates' records or other issues. George Weaver, who tried unsuccessfully to unseat Sears in 1998, brought a successful lawsuit to end that restriction.[5]

See also

External links

References

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