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Only the Senate can Punish Balfour, his Lawyers Say

Attorneys cite the state Constitution and old case laws in effort to derail the attorney general's 18-count indictment

, Daily Report

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If a state senator socks another in the jaw during an intense debate on the chamber floor, there's nothing prosecutors can do about it. That's the argument of lawyers for indicted Sen. Don Balfour.

Balfour, a Snellville Republican and Waffle House executive, isn't charged with assault, but the hypothetical scenario arose during a hearing Friday in Fulton County Superior Court as his attorneys sought to quash the 18-count indictment against him.

William Hill Jr., a partner at Rafuse, Hill & Hodges, argued that the state Constitution coupled with case law reaching back nearly 90 years gives the Senate the exclusive authority to punish its members' infractions arising from their official duties.

Balfour, who was not present at the hearing, is charged with filing false reports and theft related to his legislative reimbursements from September 2007 to December 2011. The state attorney general's office has accused Balfour of seeking reimbursement for per diem and mileage back and forth to the Capitol for days in which he wasn't in Georgia.

Balfour has admitted to errors in his reimbursement claims but has repeatedly denied purposeful wrongdoing. The Senate Ethics Committee investigated Balfour in August 2012. The committee cleared Balfour of intentional wrongdoing and ordered him to pay a $5,000 fine and $366.96 in restitution.

"The attorney general has run roughshod over the separation of powers," Hill, a former Fulton Superior Court judge, told presiding Judge Henry Newkirk. Hill also said the prosecution has exhibited "abject disrespect for the exclusivity of the Senate's authority to deal with [members' wrongdoing]."

To bolster his arguments, Hill proffered several state Supreme Court decisions, including Speer v. Martin, 163 Ga. 535 (1927), and Holliman v. State, 175 Ga. 232 (1932), in which the high court determined that the judiciary had no power to question the expenses of the Legislature, and Beatty v. Myrick, 218, Ga. 629 (1963), in which the high court affirmed the Senate was vested with exclusive power to fine and imprison its members for misconduct.

"I have looked and looked and have not found a situation like this in Georgia jurisprudence," Hill said.

In response, Newkirk and Senior Assistant Attorney General David McLaughlin pointed to the prosecutions of former state Sens. Ralph David Abernathy III, D-Atlanta, and Roscoe Dean, D-Jesup. Both lawmakers were accused of filing fraudulent expense reports.

Gov. George Busbee ordered the investigation into Dean's travel expenses in 1974, which exceeded $15,000. Dean was prosecuted by the Fulton County district attorney's office, and it ended in a mistrial. The state Senate censured Dean in 1976. Abernathy, the son of the late civil rights leader Ralph David Abernathy Jr., was accused of trying to bribe a former assistant into not fully cooperating with the Georgia Bureau of Investigation. His first trial, in September 1999, ended in a hung jury, but the second trial, two months later, resulted in a conviction on charges of theft by taking, making false statements, violating his oath of office, forgery and influencing a witness. The lead prosecutor was then-assistant attorney general Stacey Hydrick, who is now a DeKalb County State Court judge. Abernathy was sentenced to four years in prison and six years of probation.

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