Former Dekalb Clerk Looks to Oust Successor

June 8, 2011

Janet Conley, Fulton County Daily Report

Despite “temporary episodes of dementia,” former DeKalb Superior Court Clerk Linda Carter says in an affidavit that she is competent to complete her term in office, and that staff could handle her duties when she is confused.

The affidavit accompanies Carter’s bid to use an obscure legal proceeding called a writ of quo warranto to oust the current clerk, Debra DeBerry. Carter alleges that DeBerry tricked her into leaving the post she has held since 2000 before the close of her term, which would have ended in 2012. DeBerry, formerly Carter’s chief deputy clerk, has denied wrongdoing. A writ of quo warranto, generally, inquires into a person’s right to hold public office.

Carter apparently resigned in a March 24 letter to Gov. Nathan Deal. The next day, DeBerry, then chief deputy clerk, was sworn in as clerk by DeKalb Superior Court Judge Gregory A. Adams. Carter challenged the resignation letter in writing via a March 30 letter from her attorney to DeBerry. Carter’s lawyer, A. Leroy “Lee” Parks Jr. at Parks, Chesin & Walbert, has said in interviews and in a letter in the court file that his client has Alzheimer’s disease, has a “fragile mental state,” and that periods of dementia sometimes “prevent her from understanding her surroundings.”

The affidavit also asserts that Carter-who alleges that DeBerry induced her to sign a resignation letter at a time when she did not comprehend what she was doing-understands the meaning of the quo warranto petition.

“While I suffer from a condition that causes temporary episodes of dementia, I am under medical treatment for same,” Carter writes in her affidavit. “I am generally able to comprehend my surroundings and to understand the consequences of my actions. … In the employment context, I could complete my work … with reasonable accommodations, which included a mutual understanding with my senior staff that during episodes of dementa [sic], my senior staff members would serve as delegees for my duties.”

Non-urgent matters, Carter’s affidavit says, could be put aside until she is able to deal with them.

Parks, in an earlier conversation with the Daily Report, said Carter wants her job back because at the time she left office, she was two years shy of vesting in her state pension and health benefits.

The case, filed barely a month ago, is becoming a morass of legal theories. Carter launched the action in April with a petition for mandamus. Her latest move, the application for leave to petition for quo warranto, is obscure enough that it has lawyers on both sides citing case law that, variously, predates the Civil War, arose at the onset of the Great Depression or was decided during the heyday of the Beatles.

The idea of the petition for quo warranto actually was raised not by Carter’s attorneys, but by DeBerry’s.

Carter’s initial complaint alleged fraud by DeBerry and included a petition for mandamus against both DeBerry and the governor. A mandamus is an action designed to compel a public official to perform a legal duty-in this case, Carter wants DeBerry or Deal to recognize her as clerk. But both counter that mandamus is not the appropriate remedy.

DeBerry, represented by Robert S. Highsmith Jr. at Holland & Knight, on May 25 motioned for judgment on the pleadings as to the mandamus count, writing, “Plaintiff seeks to be restored as the Clerk … the remedy for which is an order of ouster against Clerk DeBerry. Because a writ of quo warranto is the primary method by which to obtain such a result, Plaintiff cannot satisfy the most essential element of her mandamus claim.”

The right to extraordinary mandamus exists only when there is no other adequate remedy affording complete relief, the motion continues. “If this Court reinstates Plaintiff as clerk, Plaintiff does not need Clerk DeBerry or anyone else to recognize her as clerk in order to obtain full relief. All Plaintiff requires is an order from this Court instructing Clerk DeBerry to vacate the office of clerk … such relief can be obtained by a writ of quo warranto.”

On June 1, about a week after DeBerry’s lawyers filed that response, Carter’s lawyers applied for leave to file a petition for quo warranto, citing O.C.G.A. 9-6-60, which says a writ of quo warranto “may issue to inquire into the right of any person to any public office the duties of which he is in fact discharging. The writ may issue upon application by one who claims to be the rightful holder of the office.”

As a factual basis for the writ, Carter’s lawyers allege that her letter of resignation is invalid because she lacked the intent to relinquish public office, and that an invalid letter does not create a vacancy.

The attorney general’s office, representing the governor, also has bucked Carter’s mandamus action. A motion to dismiss Deal from the suit, filed by Senior Assistant Attorney General Julia B. Anderson on May 13, argues that not only is Deal protected from mandamus by sovereign immunity, he is not a necessary party because “the law governing the appointment and oath-taking of Superior Court clerks does not require any action by the Governor as a prerequisite to taking office.”

Even though the governor in the past administered Carter’s oath of office, nothing in the law requires him to do so; a judge of superior court may administer the oath, the motion argues. The motion also citesO.C.G.A. 15-6-56(c), which says that if a clerk leaves office before the term ends, if there is a chief deputy clerk-in this case DeBerry held that position-that person then becomes clerk. “The Governor is not required to appoint a successor,” the motion says. “Once Plaintiff tendered her resignation and it was accepted by the Governor, Debra DeBerry became the Clerk of the Superior Court by operation of law.”

Parks and Highsmith did not return calls seeking comment. Lauren Kane, a spokeswoman for the AG’s office, said only, “Our view is that the governor is not a necessary party. Other than that we can’t comment.”

A notice in the court file indicates that most or all of the pending motions in the suit will be addressed at a July 26 hearing before DeKalb Superior Court Judge Daniel M. Coursey Jr.

The case is Carter v. DeBerry, No. 11CV4584.