Two more judicial hopefuls' eligibility contested

Greg Land

Daily Report

06-15-2012

The candidacies of attorneys hoping to unseat judges in the Augusta and Northern judicial circuits have been challenged, with protests asserting that each owes tens of thousands of dollars in back taxes and is thus ineligible for office.

Letters filed with the Georgia Secretary of State Brian Kemp's office target Willie Saunders, who is challenging Augusta Superior Court Judge Carlisle Overstreet, and Christopher NeSmith, who is running against Northern Circuit Superior Court Judge Thomas Hodges.

Last week, attorney Clarence Johnson, a challenger to Fulton Superior Court Judge Todd Markle, became the subject of a similar challenge.

Jared Thomas, a spokesman for Kemp, said that as far as anyone in the current administration knew, no candidate has ever been disqualified over delinquent taxes.

According to the Georgia Constitution, no one who is the "holder of public funds illegally shall be eligible to hold any office or appointment of honor or trust in this state."

Affidavits of candidacy on the Secretary of State's website include a portion attesting that an applicant is not in default "on any federal, state, county, municipal, or school system taxes."

But they also say that "such ineligibility may be removed at any time" if the candidates pay their debt in full or get on a payment plan with the tax authority.

Johnson told the Daily Report that he was on a payment plan with the IRS and was researching his situation with the state.

Saunders' challenge, filed by Jack Long of Augusta's Tucker, Everitt, Long, Brewton & Lanier, says Saunders defaulted on his federal income tax every year between 2004 to 2010 "and possibly 2011." It also said Saunders sought Chapter 13 bankruptcy protection that will allow him to "pay nothing on $73,334.48 in past due taxes."

The Augusta Circuit includes Burke, Columbia and Richmond counties.

"I submit that such plan of reorganization is not 'making payments to the tax authority pursuant to a payment plan,'" as allowed by law, Long wrote in a letter to the secretary of state.

"Additionally," he noted, citing records attached to the letter, "Mr. Saunders has defaulted under his bankruptcy plan obligations (and thus is not even making payments as contemplated by the requisite constitutional provision)."

In a one-sentence email to the Daily Report on Wednesday, Saunders wrote, "I have not received a challenge from anyone contesting my candidacy at this point." A copy of the challenge was forwarded to him with a request for comment, but no further communication was received from him.

Long said his protest wasn't spurred by any animus or political motivation, even though he has known Overstreet all his life and is supporting the incumbent.

"I know Willie Saunders very well," said Long. "He's a good guy," he added, noting that Saunders is a part-time juvenile court judge.

But, said Long, when he learned that Saunders had filed for Chapter 13 bankruptcy, he sought court records showing the Internal Revenue Service had filed a claim of unpaid taxes totaling almost $160,000, of which the $73,334 sum was classified as "unsecured," meaning that portion will not be paid at all.

"I just think people need to learn that, if you're going to run for office in Georgia and be paid with public funds, you've got to pay your damn taxes," he said.

If he found out Overstreet had defaulted on his taxes, "I'd probably be filing a complaint against him, too," Long said.

The letter challenging NeSmith's eligibility was filed by Danielsville attorney Lane Fitzpatrick, who wrote that federal liens totaling $80,083 and state claims of $13,226 between 2003 and 2011 had been filed against NeSmith in separate actions, some naming NeSmith's law firm and some targeting his personal filings.

The Northern Circuit includes the Elbert, Franklin, Hart, Madison and Oglethorpe counties.

"These liens do exist, but I have entered a payment plan with the IRS, and my state taxes have all been paid," NeSmith said. "I'm in compliance with the law. It's a non-issue in this campaign, as far as I'm concerned. Like a lot of other people in these hard economic times, I just got behind on my taxes."

NeSmith, the chief juvenile court judge in the Northern Circuit, said he thought Fitzpatrick's complaint was rooted in a personal grudge. During a hearing some time ago before Hodges, he said, Fitzpatrick "launched into a tirade in front of the judge saying he'd never speak to me again" after receiving an unfavorable ruling.

Fitzpatrick disputed that account. NeSmith, he said, had actually apologized for the incident after he qualified to run.

"He apologized to me, and I accepted his apology," Fitzpatrick said. "That wasn't my motivation for filing the challenge."

"I knew long before he qualified that he had tax issues," said Fitzpatrick. "I just don't think it reflects well on a judge if they don't pay their taxes," he said.

The secretary of state's office received a total of 17 challenges to various candidates this year, of which only four involved allegations of tax delinquencies, Thomas said.

"We're seeing more of these than in the past," said Thomas, "but it's probably more a feature of the economy than people deliberately not paying their taxes."

All 17 complaints have been forwarded to the state Office of Administrative hearings for preliminary assessments and recommendations. Afterward, Kemp's office will make a final decision; any challenge to that decision must be filed in superior court.