Irish Spring and Free Government

Did you ever wonder why…
irish springIrish Spring bath and body wash is blue? Why not green like the bar soap? This bothers me every morning.

The Official Code of Georgia Annotated (OCGA), to which I frequently cite, isn’t available to you? The Georgia Legislature had to be told this week by the 11th Circuit Court of Appeals that the OCGA cannot be copyrighted. Carl Malamud bought the entire 186 volumes of the OCGA, scanned it, uploaded it to a website and made it available for free to the public. The State of Georgia (SOG) sued, arguing copyright infringement. Huh? Don’t our tax dollars pay for that? ocgaWell, you do pay for it but the SOG gives Lexis the exclusive rights to the OCGA. The SOG made the pure, clean cut version of the code available for free on the SOG website, but not the OCGA. Annotated means that the cases, regulations, opinions and such that cite to that code are listed in an abbreviated format. On appeal, the 11th Circuit ruled in Malamud’s favor (and ours). Within hours he tweeted: “To the people of Georgia: This law is your law. This law is my law. From the Blue Ridge Mountains to the Savannah River. From Morehouse College to the Vidalia fields. This law was made for you and me.” He’s a clever fellow.

Judges can be late to court, but not the litigators? Another 11th Circuit case held that even though a defendant was detained at security based on a falsehood, the trial was allowed to continue in her and her attorney’s absence. A doctor was on trial for tax fraud and was being held at security on suspicion of… wait for it… having a cell phone in federal court. So security detained her. For 10 minutes. The trial judge decided that the doctor’s absence was “self inflicted” as she was supposed to know that security would illegally detain her. The judge started the case back after lunch without the lawyer (who was trying to get her client through security) or the defendant. The 11th Circuit decided that since there wasn’t a timely objection, the constitutional violation was waived. The 11th Circuit had previously warned this same judge in a different case not to resume a trial without the defendant being present. It’s good to be a judge.

homeschool-spanishHome schooling is so reviled by judges? Homeschoolers of grade school age are a very small minority of the population, but for some reason, they sure do draw the ire of judges. In Bartow County, Superior Court Judge Suzanne Smith, a former prosecutor and juvenile court judge, and a UGA graduate to boot, recently ordered a mother to put her children in a “school.”  The mother was given primary physical custody of the couple’s children in a divorce years ago. During one follow up hearing when the father was critical of the mother’s homeschooling, Judge Smith said in an order: “The Court finds it to be a shame that the Defendant Mother has not taught her children to be independent…” and ordered the mother to “immediately enroll the child in school and ensure the child is not ‘home schooled.’” The Georgia Court of Appeals panel, including my friend Steve Dillard, strongly took the judge to task, even citing some Orwellian thinking: “When state actors engage in this sort of Orwellian policymaking disguised as judging, is it any wonder that so many citizens feel as if the government does not speak for them or respect the private realm of family life,” Judge Dillard declared, pretty emphatically. “In sum, I take this opportunity, yet again, to remind our trial courts that, in making any decision or taking any action that interferes with a parent-child relationship, our state statutes are subordinate to and must be construed in light of the fundamental rights recognized by the federal and Georgia constitutions—which both include a parent’s fundamental right to homeschool a child.” Well said, Judge, well said.

Kelly Burke, master attorney, former district attorney and magistrate judge, is engaged in private practice. He writes about the law, rock’n’roll and politics or anything that strikes him. These articles are not designed to give legal advice, but are designed to inform the public about how the law affects their daily lives. Contact Kelly at kelly@burkelasseterllc.com to comment on this article or suggest articles that you’d like to see and visit his website  www.kellyrburke.com to view prior columns.

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