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Honorable Carla Wong McMillian, Court of Appeals of Georgia

EXPERIENCE

JUDGE, COURT OF APPEALS OF GEORGIA Atlanta, Georgia

• Appointed by Governor Nathan Deal

• Sworn in on January 24, 2013; Elected May 20, 2014

• First Asian-American elected to statewide office in the State of Georgia

JUDGE, STATE COURT OF FAYETTE COUNTY, GEORGIA Fayetteville, Georgia

• Appointed by Governor Sonny Perdue

• Sworn in on October 4, 2010; Elected July 31, 2012 in a contested race

• First Asian-American Woman Elected Judge in the State of Georgia

SUTHERLAND ASBILL & BRENNAN LLP Atlanta, GeorgiaPartner (2007-2010), Associate (1999-2006) Areas of Practice: Complex Business Litigation; Dealer and Franchise Litigation;

Professional Malpractice Defense; Administrative Law Handled numerous appeals, trials, and administrative hearings Argued before the Eleventh Circuit, Third Circuit, the Georgia Supreme Court, the Georgia

Court of Appeals, and the Louisiana Court of Appeals

U.S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA Atlanta, GeorgiaLaw Clerk to the Hon. William C. O’Kelley, 1998-99

EDUCATION

UNIVERSITY OF GEORGIA SCHOOL OF LAW Athens, GeorgiaJuris Doctor, 1998, summa cum laudeOrder of the CoifEditorial Board, Georgia Law Review

DUKE UNIVERSITY Durham, N.C.Bachelor of Arts in History and Bachelor of Arts in Economics, 1995, magna cum laudePhi Beta KappaDuke Review, 1994-95 Senior Editor; 1992-94 Associate Publisher

SELECTED SERVICE ACTIVITIES

• Board of Advisors, Atlanta Chapter of the Federalist Society for Law and Public Policy Studies

• Board of Trustees, Landmark Christian School

• Board of Directors, Georgia Asian Pacific American Bar Association

• Dogwood Church, Tyrone, Georgia

Judicial Nominating CommissionState of Georgia

500 14th Street, N.W.Atlanta, Georgia 30318

Tel: 678-701-9381Brian P. Kemp

Governor

This questionnaire is submitted in connection with a vacancy on the

Supreme Court of Georgia1. Please provide your full name. Include any former names that you have used.

Carla Wong McMillian. My maiden name was Carla Renee Wong.

2. Please provide your current office and home addresses, including office, home, andcellular telephone numbers and email addresses.

Office:Court of Appeals of GeorgiaNathan Deal Judicial Center330 Capitol Avenue S.E.Atlanta, Georgia 30334(404) [email protected]

3. Please provide the date and place of your birth.

4. If you are a naturalized citizen, please give the date and place of naturalization.

Not applicable

5. Please indicate your marital status and if married, the name of your spouse. If youhave any children, please provide the names and ages of your children.

Judicial Nominating CommissionApplicant Questionnaire

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6. Please identify any service in the United States Military, including the periods of yourmilitary service, the branch in which you served, your rank or rate, and the type ofdischarge you received if you are no longer active.

None

7. Please list in reverse chronological order each college and law school you attended,including the dates of attendance, the degree awarded, and your reason for leavingeach school if no degree from that institution was awarded.

University of Georgia School of Law, 1995-98, J.D.

Duke University, 1991-95, A.B. in History and Economics

8. Please list all courts in which you have been admitted to practice (excluding pro hacvice admissions), including the dates of admission for each and any lapse inmembership. Please explain the reason for any lapse in membership. Give the sameinformation for administrative bodies having special admission requirements.

Superior Courts of the State of Georgia, December 14, 1998

Court of Appeals of Georgia, November 18, 2000

Supreme Court of Georgia, February 21, 2000

United States District Court for the Northern District of Georgia, January 6, 2000

Eleventh Circuit Court of Appeals, February 8, 2000

Second Circuit Court of Appeals, September 6, 2007

Third Circuit Court of Appeals, September 6, 2002

Fourth Circuit Court of Appeals, December 14, 2000

9. Are you actively engaged in the practice of law at the present time? If you areconnected with a law firm, a corporate law department or a governmental agency,please state its name and indicate the nature and duration of your relationship.

No. I serve as a judge on the Court of Appeals of Georgia. Prior to my appointmentin 2013, I served as the State Court Judge of Fayette County. From 1999 to 2010, Iwas actively engaged in the practice of law as an associate and then as a partner withSutherland Asbill & Brennan LLP (now Eversheds Sutherland).

10. What is the general character of your practice? Indicate the character of your typicalclients and mention any legal specialties which you possess. If the nature of yourpractice has been substantially different at any time in the past, give the details,


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including the character of such and the periods involved.

I joined the litigation group of Sutherland Asbill & Brennan, LLP in October 1999,and was elected to the partnership in 2007. I remained with the firm until just priorto my appointment to the State Court of Fayette County in October 2010.

At Sutherland, my law practice focused on the three areas: (1) franchise law,specifically dealer litigation and corporate counseling; (2) accountants’ andprofessional liability defense, and (3) other complex business litigation. I haverepresented automobile and motorcycle manufacturers nationwide in various statecourts, federal courts, and administrative bodies in disputes over dealerterminations, relocations, add points, warranty reimbursement, and vicariousliability for dealer actions. I have also represented an automotive manufacturer inappeals from a product liability action. Outside of the franchise context, I havehandled a range of business matters, including professional malpractice claims,tax litigation against the Georgia Department of Revenue and the Internal RevenueService, and allegations of insurance company fraud under the RacketeerInfluenced and Corrupt Organizations (RICO) Act. I have also represented asoftware development company in a trade secret misappropriation and breach ofcontract action against a former business partner in Austin, Texas.

Finally, pro bono matters were a very important part of my private practice.Besides allowing me to help those in need, these cases provided the opportunity totackle issues that I did not regularly face in my practice. One highlight includesrepresenting a single mother who was seeking full custody of her child from herchild’s allegedly abusive father. This particular representation came from a referralfrom the predecessor organization to the Real Life Center, a non-profitorganization serving persons in need in Fayette County. Other pro bono cases inwhich I have been involved include representing a criminal defendant in oralargument before the Eleventh Circuit over a denial of the return of certain fundsand firearms under Federal Rule of Criminal Procedure 41(g). I was also involvedin Sutherland’s representation of a former death row inmate in his habeaspetitions.

11. If, in the past, you have practiced in other localities or have been connected with otherlaw firms, corporate law departments or governmental agencies, please give theparticulars, including the locations, the names of the firms, corporate lawdepartments or agencies and your relationship thereto, and the relevant dates. Alsoindicate any period in the past during which you practiced alone.

From June 1998 through August 1999, I served as a law clerk for the HonorableWilliam C. O’Kelley in the Northern District of Georgia.

In the summer of 1997, I worked as a summer associate at Robinson Bradshaw &Hinson in Charlotte, North Carolina and Fulbright & Jaworski in Houston, Texas.

In the summer of 1996, I worked as a summer associate at Fulcher Hagler ReedHanks & Harper (now Fulcher Hagler LLP) in Augusta, Georgia.


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12. State chronologically any judicial offices you have held, including positions as anadministrative law judge, state whether such position was elected or appointed, statethe length of service in each position, give a description of the jurisdiction of eachsuch court and describe the scope of your responsibilities in this court.

State Court of Fayette County – I was appointed by Governor Sonny Perdue tothe State Court of Fayette County, taking office on October 4, 2010. On July 31, 2012,I was elected in a contested race with 66% of the vote. I served on the State Court forapproximately 27 months.

As State Court Judge, I presided over civil cases without regard to the amount incontroversy, except for those cases in the exclusive jurisdiction of the Superior Court,and criminal misdemeanors. As the sole State Court Judge in Fayette County, Idisposed of over 7000 cases per year and handled all administrative matters relatedto the county government.

Court of Appeals of Georgia – I was appointed by Governor Nathan Deal to theCourt of Appeals of Georgia, taking office on January 24, 2013, and am presently inthat position. I was elected in an uncontested election in 2014.

The Court of Appeals has statewide appellate jurisdiction of all cases except thoseinvolving constitutional questions, election contests, habeas corpus, and all cases inwhich a sentence of death was imposed or could be imposed.

Since June 2019, I have served as Vice Chief and Presiding Judge. As Vice Chief, Iassist the Chief Judge in his discretion. As Presiding Judge, I handle scheduling fororal argument and preside at oral argument. I also serve on the Court’s ExecutiveCouncil.

13. Have you ever held public office, other than judicial office, or have you ever been acandidate for such an office? If so, give the details, including the offices involved,whether elected or appointed, and the length of your service.

No

14. Have you ever been an unsuccessful candidate for election to any office? For eachelection, state the office(s) sought, the date(s), the number of candidates involved,and the percentage of votes you obtained.

No

15. Have you regularly appeared in court during the past five (5) years?

No. However, I regularly appeared in court prior to October 2010 when I wasappointed to the State Court.


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(a) What percentage of your appearances in the last five years were in:

(i) Federal Courts (list all courts): None in the last five years.Approximately 75% prior to October 2010, including:

Third Circuit Court of Appeals

Second Circuit Court of Appeals

Eleventh Circuit Court of Appeals

United States District Court for the Northern District of Georgia

United States District Court for the Western District of Texas

United States District Court for the District of New Jersey

United States District Court for the District of Massachusetts

United States District Court for the Eastern District of New York

United States District Court for the Western District of New York

United States District Court for the Central District of California

United States District Court for the Southern District of West Virginia

United States Bankruptcy Court for the Eastern District of New York

(ii) State Courts (list all courts): I have not appeared in any state courtsince October 2010 as an attorney, although as a judge I have onlyserved in state courts. Prior to October 2010, approximately 25% of mypractice was in state courts, including:

Supreme Court of Georgia

Court of Appeals of Georgia

Superior Court of Gwinnett County

Superior Court of Fulton County

Superior Court of Ware County

Superior Court of Fayette County

State Court of DeKalb County


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(iii) Other courts (please list all states other than Georgia): None in the lastfive years; small % prior to October 2010, including:

New York, Supreme Court, Nassau County

New York, Second Department, Appellate Division

Maine Supreme Judicial Court

Court of Common Pleas, Pennsylvania

Louisiana Court of Appeals

Court of Common Pleas, South Carolina

Circuit Court, Pinellas County, Florida

(b) What percentage of your court appearances in the last five years were:

(i) Civil? Approximately 98% prior to October 2010

(ii) Criminal? Approximately 2% prior to October 2010

(c) What percentage of your trials in the last five (5) years were:

(i) Jury? As a State Court Judge, approximately half of the trials I presidedover were jury trials.

(ii) Non-jury? As a State Court Judge, approximately half of the trials Ipresided over were non-jury trials.

(d) State the approximate number of cases you have tried to conclusion in courtsof record during each of the past five (5) years, indicating whether you weresole, associate, or chief counsel.

From October 2010 to January 2013, I presided over dozens of civil andcriminal trials in Fayette County State Court. That State Court has six termsper year and each term includes a civil jury trial calendar, criminal jury trialcalendar, civil bench trial calendar, and criminal bench trial calendar.

In 2010, I tried Myriad Development, Inc. v. Alltech, Inc. in the United StatesDistrict Court for the Western District of Texas to verdict as second chair.

(e) Describe five (5) of the more significant litigated matters which you havehandled.

Prior to October 2010, five of the more significant litigated matters which I


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handled in my private practice were:

Clemente v. Metro Dodge et al; Jackson v. Metro Dodge et al; Warnell v.Metro Dodge et al; Wages v. Metro Dodge et al; Davis v. Metro Dodge etal: In these five related cases brought in the Superior Court of GwinnettCounty, consumers alleged that Chrysler was responsible for a defunctdealer’s failure to pay off loans on trade-in vehicles. Their claims rangedfrom common law fraud and conversion to violations of the GeorgiaRacketeer Influenced and Corrupt Organizations Act. Although fiveplaintiffs were involved in these cases, the Georgia Office of ConsumerAffairs had identified approximately 40 other customers who had alsoexperienced similar issues with the dealer. After extensive factual andexpert discovery and motion practice, which resulted in the exclusion of theplaintiffs’ expert, four separate trials were set for August 2007. On themorning of the first trial, I successfully moved for reconsideration of themotion for summary judgment and for a certificate of immediate review,both of which the court had denied just several weeks before. The GeorgiaCourt of Appeals granted permission to the parties to proceed with theinterlocutory appeals, granted oral argument (which I argued), andunequivocally held that the manufacturer was not vicariously liable for thedealer’s conduct. This was the first time that the Court of Appeals hadaddressed Georgia agency law in the context of a motor vehiclemanufacturer/dealer relationship and the Georgia Motor Vehicle FranchisePractices Act. I also successfully opposed plaintiffs’ petition for certiorari tothe Georgia Supreme Court.

Tri-County Motors, Inc. v. American Suzuki Motor Corp.: In this casebrought in 2004 in federal court in Brooklyn, New York, the potentialpurchaser of a dealership claimed that Suzuki improperly denied itsapplication to purchase a Long Island dealership, asserting breach ofcontract, tortious interference with contract, and violations of the New YorkMotor Vehicle Dealer Act. The plaintiff sought millions in lost profitdamages. After protracted discovery in which plaintiff raised issuesregarding Suzuki’s production of electronic documents, both sides movedfor summary judgment and plaintiff moved for sanctions. I handled thediscovery, developed the damages and industry experts, took and defendedthe expert depositions, and briefed the summary judgment and sanctionsmotions. In July 2007, the Court granted Suzuki’s summary judgmentmotion in full, dismissing all claims, and denied plaintiff’s motion forsanctions. I played a significant role in drafting the appellee’s briefs to theSecond Circuit. The Second Circuit affirmed.

Aspen Ford et al v. Ford Motor Co. -- Fifteen dealers in New York sued Fordin federal court for additional warranty reimbursement under the New YorkMotor Vehicle Dealer Act and under the dealer agreements. I drafted themotion to dismiss and other pleadings, handled the protracted factualdiscovery and depositions, worked extensively with the damages expert, andplayed a significant role in drafting the summary judgment motion. I also


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argued the motion for summary judgment. Given the number of plaintiffs,I was involved in the strategy to craft a test case in order to efficiently bringthe case to judgment, including selecting the test case dealers. Fordprevailed on summary judgment against the two test case dealers, whicheventually resulted in the voluntary dismissal with prejudice by the otherdealers.

Security Life Insurance Co. v. Clark – Filed in the Superior Court of EarlyCounty in 1994 and tried in 1996, this case resulted in ten appellate decisions.Plaintiffs had asserted fraud and violations of the Georgia RacketeerInfluenced and Corrupt Organizations Act based on an insurance agent’sforgery on the insurance application and the subsequent denial of coverage. Iplayed an active role in developing strategy for the later rounds of appeals andhandled the appellate briefing, which led to a $10 million reduction in themulti-million dollar verdict and striking of pre-judgment interest. I alsohandled several motions on remand in the trial court.

Myriad Development, Inc. v. Alltech, Inc. – I represented MyriadDevelopment, Inc. a software development company, against a formerbusiness partner in federal court in Austin, Texas. Myriad asserted thatAlltech had misappropriated trade secrets from Myriad’s proprietary RiskManager system (a fully automated inspection management software system)and that Alltech had breached license agreements and another contract.Alltech asserted counterclaims for breach of the same contracts andconversion, seeking amounts in excess of $25 million. I handled much of thediscovery, including the production of thousands of electronic documents,and worked extensively with the damages expert and defended his deposition.I also was heavily involved in drafting and responding to pre-trial motions,including Daubert motions, summary judgment motions, and over 20motions in limine filed by both sides. In March 2010, the case was tried to ajury with Myriad prevailing on its trade secret misappropriation and breachof contract claims and Alltech taking nothing. I second chaired the trial.

(f) Please list the names and contact information of five (5) attorneys who haveappeared as opposing counsel in litigated matters you have handled whichinvolved a bench or jury trial, or a contested hearing before a judicial officer.

William S. Stone

Hardy Gregory


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James E. Butler, Jr.

Byron Attridge

Clifford E. Hardwick IV

(g) State with reasonable detail your experience in adversary proceedings beforeadministrative boards or commissions during the past five years.

I have had no experience before administrative boards or commissions withinthe last five years. However, within the last five years of private practice, Iappeared before the following administrative boards or commissions inGeorgia:

Georgia Office of State Administrative Hearings – I handled several mattersbefore the Office of State Administrative Hearings, including a case broughtby a motor vehicle dealer against a distributor for breach of a dealeragreement and violations of the Georgia Motor Vehicle Franchise PracticesAct. On behalf of the distributor, we successfully moved to compel arbitrationthrough a separate action brought in Fulton County Superior Court. Also, Ihave handled a matter before OSAH brought by a food processor thatchallenged a tax assessment notice issued by the Georgia Department ofRevenue. After I deposed the revenue agent, the Department of Revenuevoluntarily withdrew the notice of assessment.

Georgia Department of Revenue – I represented DaimlerChrysler MotorsCompany, LLC in a petition for agency review of an administrative law judge’sdecision, finding that Chrysler properly terminated a dealer agreement withan Atlanta area dealer. I successfully argued that the administrative lawjudge’s decision was final under the Georgia Department of Revenue’sregulations and that the petitioner should have filed a petition for judicial


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review under O.C.G.A. § 50-13-19.

16. Summarize your experience in court prior to the last five (5) years. If during anyprior period you appeared in court with greater frequency than during the last five(5) years, indicate the periods during which this was so and give for such prior periodsthe same data which was requested in item 15 above.

My practice at Sutherland prior to my last five years of practice was similar to whatwas described above and was a time in which I was developing expertise in franchiseand dealer litigation and accountants’ professional liability cases. These casesinclude:

Perpetual Bank v. KPMG Peat Marwick LLP, No. 99-CP-04-849, Court of CommonPleas, County of Anderson, South Carolina

O’Halloran v. KPMG Peat Marwick LLP, No. 00-2339 CI-8, Circuit Court ofPinellas County, Florida

Barden v. Ford Motor Co., No 97-947, United States District Court for the WesternDistrict of Pennsylvania

In addition, I represented several telecommunications companies in connection withfees charged for calls made to internet service providers under the federalTelecommunications Act of 1996. Reported cases include:

Bellsouth Telecommunications, Inc. v. MCImetro Access Transmission Services,Inc., 278 F.3d 1223 (11th Cir. 2002).

Bellsouth Telecommunications, Inc. v. MCImetro Access Transmission Services,Inc., 297 F.3d 1276 (11th Cir. 2002).

BellSouth Telecommunications, Inc. v. MCImetro Access Transmission Services,Inc., 317 F.3d 1270 (11th Cir. 2003).

As a law clerk for Judge O’Kelley from 1998 to 1999, I observed a number of jury trialsand hearings in the Atlanta and Gainesville Divisions of the Northern District ofGeorgia. Also, as a Senior District Court Judge, Judge O’Kelley regularly visited othercourts. During my tenure, he handled a criminal calendar for the United StatesDistrict Court for the Middle District of Alabama in Montgomery, Alabama. As thelaw clerk assigned to those cases, I observed pleas, motions hearings, and trials, aswell as researched issues and otherwise supported Judge O’Kelley.

Also, during my tenure, Judge Kelley sat as a visiting judge on the Eleventh CircuitCourt of Appeals in Jacksonville, Florida. Again, I was the law clerk assigned to thesecases and spent several months reviewing the records, working with Judge O’Kelleyto prepare for oral argument, and aiding Judge O’Kelley in drafting the opinions. Iwas able to observe the oral argument for these cases.


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In addition, as a law clerk, one of the more challenging cases that I worked on was ahabeas petition brought by a defendant who was on death row. I aided Judge O’Kelleyin reviewing the record, researching the issues raised in the habeas petition, anddrafting the order denying the habeas petition.

17. Summarize your experience in adversary proceedings before administrativeboards or commissions prior to the last five (5) years.

Representative matters that I handled prior to my last five years of private practiceinclude:

Maine Motor Vehicle Franchise Board – In 2003, the Maine legislature formed aMotor Vehicle Franchise Board to hear protests by Maine dealers under the DealerAct. At the time, the Board was comprised of a lawyer-chair, dealer representatives,a manufacturer representative, and a member of the public. I represented FordMotor Company in the first protest brought to the Board, which went to trial in 2005.In addition to formulating a strategy to defend the claims substantively, a majorchallenge with handling this protest was working through the newly draftedprocedural and evidentiary rules that had never been tested.

Louisiana Motor Vehicle Commission -- I have handled several matters before theLouisiana Motor Vehicle Commission, including Marler Ford, Inc. v. Ford MotorCompany, which was tried before a special non-dealer panel in 2003. Marler, adealer in Alexandria, Louisiana, had filed a protest against Ford alleging under-reimbursement of warranty claims under the dealer agreement and Louisiana MotorVehicle Commission Law. After trial, the LMVC denied Marler’s claims in full, andMarler appealed to the Louisiana trial court and to the Louisiana Court of Appealsand applied for writ of certiorari to the Louisiana Supreme Court. Ford prevailed onall claims on appeal and successfully opposed the petition for certiorari. I took thediscovery, developed the experts, second chaired the trial and handled theappellate briefing. I also orally argued before the Louisiana Court of Appeals. As aresult of Ford’s complete win in the LMVC action, the dealer voluntarily dismisseda separate putative class action on behalf of all Louisiana Ford dealers, which hadbeen filed in federal court.

I have also represented the Fulton County School District in a challenge by a schoolresource officer to her termination, which was brought before the Fulton CountyBoard of Education.

18. The following questions (18(a) – 18(h)) apply only to current and former judicial andquasi-judicial office holders.

(a) Approximately how many cases have you presided over as a trial judge thathave gone to verdict or judgment?

In my former capacity as State Court Judge of Fayette County, I did notmaintain, nor was I expected to maintain, records of cases that I presided overthat have gone to verdict or judgment. However, I disposed of over


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approximately 7000 cases per year, so over the course of the 27 months that Iwas on the bench, I estimate that I presided over 14,000 cases that went toverdict or judgment.

(b) Of those cases, approximately what percent were:

(i) Jury Trials: Less than 1%

Bench Trials: Less than 1%

(ii) Civil Proceedings: Based on my best recollection, I believethat my caseload was approximately 20%civil.

Criminal Proceedings: Based on my best recollection, I believethat my caseload was approximately 80%criminal.

(c) At any time during your service as a trial judge, have you presided over aDivision of your court (including presiding over an Accountability Court) thateither entirely or partly involved handling only certain types of cases? If so,provide details including the period you served in such capacity and thepercentage of time you typically devote or devoted to these particular cases.

No

(d) For each of the 5 most significant cases over which you presided as a trialjudge, provide: (i) a capsule summary of the nature the case; (ii) the outcomeof the case; and (iii) the name and contact information for counsel who had asignificant role in the trial of the case.

During my tenure as State Court Judge, I presided over the followingsignificant cases:

1. State v. Barnett, Case No. 2010SR-0869, aff’d 314 Ga. App. 17. (2012).

After an evidentiary hearing, I granted the defendant’s motion tosuppress evidence seized during the execution of a “no knock” searchwarrant on the grounds that evidence that a firearm was seen on thepremises five months before was stale and the supporting affidavit onlyincluded boilerplate statements regarding the need for a “no knock”warrant. The State appealed, and the order was affirmed. This case wassignificant because it was the first of a several cases prosecuted inFayette State Court in which “no knock” search warrants with similarboilerplate and insufficient language were executed. See also State v.Cash, 316 Ga. App. 324 (2012).

State’s counsel: Joseph B. Myers, Assistant Solicitor-General, Fayette


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County Justice Center, 1 Center Drive, Fayetteville, Georgia 30214.(770) 716-4260

Defendant’s counsel: Glenn Howell, Assistant Public Defender(deceased); Walker Chandler, Office of the Public Defender, 175Johnson Avenue, 202 Gleneagle Point, Peachtree City, Georgia 30269.(770) 716-4337

2. Hill v. State, Case No. 2010SR-0699, aff’d 321 Ga. App. 817 (2013).

After defendant was convicted, he appealed the denial of the motion tosuppress, challenging the use of License Plate Recognition (LPR)technology, which was used by officers to identify vehicles that mayhave been stolen or if a missing or wanted person was associated withthe vehicle. This case was significant because at the time, LPRtechnology was relatively new and defendants across the State andnation were challenging its use in traffic stops as an unreasonablesearch under the Fourth Amendment.

State’s Counsel: Joseph B. Myers, Assistant Solicitor General, FayetteCounty Justice Center, 1 Center Drive, Fayetteville, Georgia 30214.(770) 716-4260

Defendant’s counsel: Jason Martin, Macon Circuit District Attorney’sOffice, 661 Mulberry Street, Macon, Georgia 31201. (478) 621-6266

3. Jones v. Fayette Family Dental Care, Inc., Case No. 2009SV-0781,aff’d 312 Ga. App. 230 (2011).

I granted summary judgment for the dental practice after a dentalassistant sued for intentional infliction of emotional distress. Thedental assistant had witnessed the dentist engaging in inappropriateconduct at the workplace. This case was unique because it was one ofthe few employment cases filed in state court, rather than federal court,and involved a prominent local dentist.

Plaintiff’s counsel: Adam Taylor, 352 Sandy Springs Circle, Atlanta,Georgia 30328. (404) 437-6494

Defendant’s counsel: Justin Connell and Douglas Miller, ElarbeeThompson Sapp & Wilson, LLP, 229 Peachtree Street N.E., Suite 800,Atlanta, Georgia 30303. (404) 582-8447

Larry Overman, Overman & Overman LLC, 259 Glynn Street South,Fayetteville, Georgia 30214. (770) 626-5200


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4. State v. Pye, Case No. 2011SR-0787, State Court of Fayette County.

Defendant was charged with vehicular homicide after failing to stop ata stop sign and causing the death of a motorcyclist. Defendant filedseveral pretrial motions, including a motion for production of Bradymaterial and motion for subpoena for out-of-state witnesses, whichrequired evidentiary hearings. After the case was set for trial, thedefendant entered a plea and there was an extensive sentencinghearing where the State presented emotional testimony from thevictim’s family and the defendant testified. This case was unique inseveral aspects, including that the defendant was the young adult sonof a captain in the local police department, and the victim’s family wasconcerned that the defendant was receiving special treatment as aresult. It was thus important for me to be transparent in explaining theprocess and to ensure that each side had a full and fair opportunity tobe heard.

State’s Counsel: Jamie Inagawa, Solicitor-General, Fayette CountyJustice Center, 1 Center Drive, Fayetteville, Georgia 30214. (770) 716-4260

Defendant’s Counsel: Martin Cowen, 8188 Pembrook Terrace,Jonesboro, Georgia 30236-4179. (770) 471-9800

5. Bridges v. Thornton et al., Case Nos. 2010SV-0484, 2011SV-0484,2011SV-0448, State Court of Fayette County

After a bench trial before the previous State Court Judge, the doctorwho was uninsured, was found liable for malpractice in performing asurgical procedure and a judgment was entered against her. I took overthe case in the post-trial discovery phase, which focused on where thedoctor was concealing her assets. After a series of hearings anddiscovery over the course of months, the doctor was subjected toincreasing sanctions for failing to respond to discovery. Ultimately, itwas determined that the doctor owned an interest in and served as anofficer for a family corporation, which had been distributing funds toher. After the doctor refused to provide information about the sourceof the distributions, I found her in civil contempt and remanded herinto custody of the Fayette County Jail but allowed her to purge thecontempt by producing the information. Among the unique aspects ofthis case was a motion made while the doctor was in custody to permither to conference with the other physicians in her practice so that theycould provide services for the patients she had been scheduled to see.The doctor was able to purge the contempt after approximately fivedays in jail.

Plaintiff’s counsel: Ralph Hughes, 5641 Bahia Mar Circle, StoneMountain, Georgia 30087. (404) 373-3458


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Defendant’s counsel: Thomas Tierney, 430 Prime Point Suite 202,Peachtree City, Georgia 30269 (770) 631-1100

Chuck Sylvester, Sylvester & Associates, 133 Summit Street Suite 130,Duluth, MN 55803. (770) 632-6011

(e) For each of the 5 most significant cases which you handled as an appellatejudge please provide: (i) a capsule summary of the nature of the case; (ii)whether you authored the majority opinion or any dissenting, concurring, orspecially concurring opinion, including a brief description of the writing; (iii)a summary of the case disposition on certiorari (if certiorari was sought); and(iv) the name and contact information for counsel who had a significant rolein the appeal of the case.

I handled the following significant cases as a Court of Appeals Judge:

1. Mahalo Investments III, LLC v. First Citizens Bank & TrustCompany, Inc., 330 Ga. App. 737 (2015) (McMillian, J.) – Using atextualist analysis, the Court held, as an issue of first impression,that under OCGA § 14-11-504 (a), an order charging a member’sinterest in a limited liability company with payment of anunsatisfied judgment need not be initiated as a separate actionagainst the limited liability company and that as long as thecharging court has jurisdiction over the judgment debtor, thecharging court does not also need to have jurisdiction over thelimited liability company. Certiorari was not sought.

Appellant’s counsel: Andrew Lavoie, Edenfield Cox Buce, 115Savannah Avenue, Statesboro, Georgia 30458. (912) 764-8600

John Christy, Schreeder Wheeler & Flint, 1100 Peachtree Street,Suite 800, Atlanta, Georgia 30309. (404) 681-3450

Appellee’s counsel: William Carmichael, Stokes Carmichael &Ernst, LLP, 2018 Powers Ferry Road, Suite 700, Atlanta, Georgia30339. (404) 352-1465

Rachel Humphrey, 600 Saddleview Court, Atlanta, Georgia 30350.(770) 652-3119

N. Campbell, King & Spalding LLP, 1180 Peachtree Street, N.E.,Atlanta, Georgia 30309. (404) 572-2748

2. Lewis v. Knology, Inc., 341 Ga. App. 86 (2017) (McMillian, J.) – Inthis divided opinion, I wrote for the majority, holding that the trialcourt properly denied class certification because the classrepresentative failed to meet the typicality and adequacy


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requirements. The class representative lacked virtually anyknowledge of the substance of the claims or the nature of the reliefsought and had yielded control of the litigation entirely to hercounsel. Among other things, the class representative was notaware that she had been named a party to a lawsuit that had beenfiled in Georgia or the names of the law firms who represented her.Certiorari was sought and denied.

Appellant’s counsel: David Bain, Law Offices of David A. Bain, LLC,1230 Peachtree Street, N.E., Suite 1050, Atlanta, Georgia 30309.(404) 724-9990

Shannon L. Hopkins and Sebastiani Tornatore, Levi & Korinsky,LLP, 733 Summer Street, Suite 304, Stamford, Connecticut 06901.(203) 992-4523

Appellee’s counsel: Matthew Alford and Mark Degennaro, WillisMcKenzie, LLP, 300 Smith Street, Lagrange, Georgia 30240. (706)882-2942

Christopher M. Sacco, Carlton Fields Jorden Burt, P.A., Suite 1000,4221 West Boy Scout Boulevard, Tampa, Florida 33607. (813) 223-7000

Bruce J. Berman, Carlton Fields Jorden Burt, P.A., Miami Tower,Suite 4200, 100 S.E. Second Street, Miami, Florida 33131 (305)530-0050

3. Garner v. State, 342 Ga. App. 824 (2017) (McMillian, J.) – Thecriminal defendant had challenged the use of extraordinary securitymeasures at trial, including an extra metal detector at the door ofthe courtroom and a concealed shock belt, as a violation of his Sixthand Fourteenth Amendment rights. The security measures were putin place because there was evidence that the defendant hadthreatened the victim and his children prior to trial. The Courtupheld the use of the security measures because the defendantfailed to show that he was harmed or prejudiced by the use of thedevices. This is the first case in Georgia specifically addressing theuse of extra metal detectors in this context. Certiorari was soughtand denied.

Appellant’s counsel: Matthew Leipold, Northeastern JudicialCircuit Public Defender, P.O. Box 390, Gainesville, Georgia 30503.(770) 718-5523

Appellee’s counsel: Lee Darragh and Jennifer Bagwell, Office of theDistrict Attorney, Northeastern Judicial Circuit, P.O. Box 1690,Gainesville, Georgia 30503. (770) 531-6965


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4. Miller v. Turner Broadcasting System, Inc., 339 Ga. App. 638(2016) (McMillian, J., dissenting) – An electrical worker believesthat he shut off the circuit breaker to the area where he and anothercolleague are working. The co-worker ascends a ladder, is shockedby the junction box, climbs down, and tells the electrical workerthat the circuit is live and that they should check the circuit breaker.Tragically, the electrical worker declines to do so and climbs up theladder to check the junction box and is electrocuted. A majority ofseven judges found issues of fact precluding summary judgment tothe owner of the premises. In a dissent joined by Judge Branch, Iexplained that in similar cases, the Court had appropriately upheldsummary judgment when the plaintiff was aware of a potential riskof live electricity, yet failed to exercise reasonable care for his ownsafety or through his own actions assumed the risk of potentialdanger. Certiorari was sought and denied.

Appellant’s counsel: Peter Law and Ernest Moran, Law & Moran,563 Spring Street, N.W., Atlanta, Georgia 30308. (404) 814-3700

Darren Summerville, The Summerville Firm, LLC, 1226 Ponce deLeon Avenue, N.E., Atlanta, Georgia 30306. (770) 635-0030

Appellee’s counsel: Robert Luskin, Goodman McGuffey, Lindsey &Johnson, LLP, 2100 Tower Place, 3340 Peachtree Road, N.E.,Atlanta, Georgia 30326. (404) 264-1500.

Michael Melanakos, 950 East Paces Ferry Road, Suite 1650,Atlanta, Georgia 30326. (404) 250-3236

Alan Bakowski, Courtney Ferrell, Daniel Reinhardt, TroutmanSanders LLP, 600 Peachtree Street N.E., Suite 5200, Atlanta,Georgia 30308. (404) 885-2578

Edward Lindsey, Dentons US, 303 Peachtree Street, Suite 5300,Atlanta, Georgia 30308. (404) 527-4580

Elissa Haynes, Drew Eckl & Farnham, LLP, 303 Peachtree StreetN.E., Suite 3500, Atlanta, Georgia 30308. (404) 885-6243

5. Nasir v. Gwinnett County State Court, 341 Ga. App. 63 (2017)(McMillian, J., concurring specially) – In this appeal from a requestby a criminal defendant to restrict public access to his criminalrecord under OCGA 35-3-37, the primary issue was the meaning ofthe statutory text. My concurring opinion explains why the plainlanguage of the text of the statute is susceptible to only onereasonable interpretation and why the dissenting judge erred byrelying on the notion of “legislative intent” to reach the opposite


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conclusion. “We are bound to effectuate the intent of the legislatureas expressed in the words and language of the text that thelegislature has deemed to enact.” Nasir, 341 Ga. App. at 69.Certiorari was sought and denied.

Appellant: pro se

Appellee’s counsel: Theresa Cox, Gwinnett County Department ofLaw, 75 Langley Drive, Lawrenceville, Georgia 30046. (770) 822-8700

(f) Provide citations for all of your opinions as a trial judge, or for those opinionsyou authored as an appellate judge, where the decision was reversed orvacated by a reviewing court or where the judgment was affirmed withsignificant criticism of the substantive or procedural rulings or holdings. If anyof the opinions listed were not officially reported, provide copies of theopinions.

As a State Court Judge, I was reversed in the following cases:

Reininger v. O’Neill, 316 Ga. App. 477 (2012) (affirming in part and reversingin part Reininger v. O’Neill, 2008SV-0791, State Court of Fayette County,Order granting in part and denying in part motion for summary judgmentdated February 7, 2011).

State v. Mosley, 321 Ga. App. 236 (2013) (reversing State v. Mosley, 2011SV-0762, State Court of Fayette County, Order granting motion to suppress datedJanuary 20, 2012).

Wade v. Allstate Fire & Casualty Co., 324 Ga. App. 491 (2013) (reversingWade v. Bruce, 2012SV-0099, State Court of Fayette County, Order grantingMotion for Summary Judgment dated July 16, 2012).

As a judge on the Court of Appeals, the judgment was reversed or vacated inthe following cases:

Scott v. State, 295 Ga. 39 (2014) (reversing Scott v. State, 320 Ga. App. XXVI(March 11, 2013) (unpublished)).

Raysoni v. Payless Auto Deals, LLC, 296 Ga. 156 (2014) (reversing Raysoniv. Payless Auto Deals, LLC, 323 Ga. App. 583 (2013)).

Petrakopoulos v. Vranas, 296 Ga. 48 (2014) (vacating in part Petrakopoulosv. Vranas, 325 Ga. App. 332 (2013) after plaintiff conceded that he neverintended to raise an unjust enrichment claim).

Phillips . Harmon, 297 Ga. 386 (2017) (affirming in part and reversing in partPhillips v. Harmon, 328 Ga. App. 686 (2014)).


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Winfrey v. State, 304 Ga. 94 (2018) (reversing Winfrey v. State, 340 Ga. App.344 (2017)).

In the following case, the reviewing court while affirming the judgmentcriticized the reasoning in a significant way:

State v. Outen, 296 Ga. 40 (2014) (disagreeing with rationale for rejecting theState’s relation-back claim while affirming State v. Outen, 324 Ga. App. 457(2014)).

Unpublished orders and opinions that have been reversed have not beenincluded but I can obtain them if the Judicial Nominating Commission wouldlike to review them.

(g) Identify the basis by which you have assessed the necessity or propriety ofjudicial recusal (if your court employs an “automatic” recusal system, pleaseinclude a general description of that system). Provide a list of any cases,motions or matters that have come before you in which a litigant or party hasrequested that you recuse yourself due to an asserted conflict of interest or inwhich you have recused yourself sua sponte. Identify each such case, and foreach provide the following information:

(i) Whether your recusal was requested by a motion or other request by aparty or any other person; or if you recused yourself sua sponte;

(ii) A brief description of the asserted conflict of interest or other groundfor recusal;

(iii) The procedure you followed in determining whether or not to recuseyourself; and

(iv) Your reasoning for recusing or declining to recuse yourself, includingany action taken to remove the real, apparent, or asserted conflict ofinterest, or to cure any other ground for recusal.

In my former capacity as a state court judge, I did not maintain, nor was Iexpected to maintain, a standing recusal list. During the approximately 27months I served, I was assigned approximately 14,000 cases for disposition.There were certainly occasions where a litigant, particularly a pro se litigant,may have moved for my recusal. I do not remember any cases where theparties moved to substitute me for cause, but it may have happened. Thesecases cannot be searched other than by a physical review of the file. However,I did voluntarily recuse sua sponte on occasions where I may have known aparty or recusal was necessary to otherwise avoid an appearance ofimpropriety. I can specifically recall one such instance when my personalphysician’s office was the defendant in a malpractice case, Minix v. Greene etal., Case No. 2009SV-0774. The State Court of Fayette County did not employ


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an automatic recusal system.

I evaluated the necessity or propriety of recusal pursuant to the provisions ofwhat is now Canon 2.11 of the Georgia Code of Judicial Conduct and alsoconsidered the provisions of what is now Canon 1, which requires judges toavoid impropriety and the appearance of impropriety. I also assessed recusalmotions pursuant to Rule 25 of the Uniform Rules of State Court and Rule 25of the Uniform Rules of Superior Court, which contain affidavit and timelimitation requirements for litigants seeking recusal.

While a Judge on the Court of Appeals of Georgia, I have been assigned orotherwise responsible for voting on hundreds of cases. The Court does notutilize an automatic recusal system. In evaluating the recusal motion, Iconsidered the Georgia Code of Judicial Conduct and utilized the proceduresset out in Rule 44 of the Rules of the Court of Appeals of Georgia and theCourt’s Internal Operations Manual, Section XVIII. I have been asked todisqualify myself from the following cases.

Lynch v. State, A14A1467 – In this criminal case, the pro se defendant movedto recuse Judges Dillard, Andrews, and me because his former appellatecounsel engaged with Judge Dillard and me on Twitter on matters unrelatedto this case or any other case. The motion to recuse was denied.

Levine v. Georgia Alloy, LLC et al., A19A0187 – The pro se appellant in thiscivil case moved to recuse all of the judges on the Court of Appeals because ofcomplaints related to filings that had been rejected by the clerk’s office andother docketing issues. The motion to recuse was denied as untimely and/orunmeritorious.

I have recused sua sponte in the following cases:

Williams v. State, A13A0987 – The defendant was represented by a formercolleague and friend from my previous law firm where I was a partner.

New v. State, A13A2391 – The case was tried in Superior Court in the GriffinJudicial Circuit when I was still a State Court judge. During trial, the SuperiorCourt judge presiding over the case consulted with me about issues that aroseduring trial.

Smith et al. v. Judicial Correction Services, Inc., A14A1521 – In this civil case,the plaintiff alleged that the private probation company that served FayetteState Court was liable for failing to supervise the probationer who drove drunkand died while she was serving the sentence rendered by the Fayette StateCourt.

Coen v. Aptean, Inc. et al, A15D0065 – The respondent to this application fordiscretionary application was represented by former colleagues and friendsfrom my previous law firm where I was a partner.


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905 Bernina Avenue Cooperative, Inc. et al. v. Smith/Burns LLC et al.,A17A0062, A17A0063 – One of the parties on appeal was represented by aformer colleague and friend from my previous law firm where I was a partner.

Aldredge v. Byrd (A17A0281), Aldredge v. Wilson (A17A0285), Aldredge v.Byrd (A17A0296), Aldredge v. Arnold (A17A0297), Aldredge v. Williams(A17A0298), Aldredge v. Smith (A17A0299) – I presided over these cases inthe very early stages of litigation in the State Court of Fayette County.

Burson et al. v. Milton Hall Surgical Associates, LLC, A17A1317 – Theappellant was my personal physician, and I had personal knowledge of someof the issues on appeal.

In the interest of M.D.W., A17D0519 – A lawyer in the proceeding was relatedto me within the third degree of relationship as defined in Canon 2.11 of theGeorgia Code of Judicial Conduct.

Moore v. Hullander, A18D0033, A18A0592 -- A lawyer in the proceeding wasrelated to me within the third degree of relationship as defined in Canon 2.11of the Georgia Code of Judicial Conduct.

Reinhardt v. State, A18A0325 – The victim of the armed robbery was a closefriend, and I had personal knowledge of the crime.

Coen v. Aptean et al., A18A0522 – The appellees were my former law firm anda former law partner with whom I had a close relationship.

Belk, Inc. v. Evans, A18I0092 -- A lawyer in the proceeding was related to mewithin the third degree of relationship as defined in Canon 2.11 of the GeorgiaCode of Judicial Conduct.

Herbert v. Walker, A19A1008, A19A2482 -- A lawyer in the proceeding wasrelated to me within the third degree of relationship as defined in Canon 2.11of the Georgia Code of Judicial Conduct.

(h) List all employment you had while serving as a judge (whether full-time orpart-time, contractual, at-will, consulting, teaching, or otherwise) other thanelected judicial office. Specify your dates of employment, employer, major jobresponsibilities, and your supervisor.

None

19. Describe your appellate practice during the past five (5) years in detail and givecitations if your cases were reported.

Since October 2010, I have not appeared in any appellate court as a litigant. Priorto October 2010, I had an extensive appellate practice including:


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Monaghan v. Ford Motor Co., 71 A.D.3d 848, 897 N.Y.S.2d 482 (2nd Dep’t 2010).

I represented Ford Motor Company in an interlocutory appeal brought bythe Estate of Monaghan, appealing the dismissal of a breach of fiduciaryduty claim against Ford as well the narrowing of a separate fraud claim. Thedecedent had been a minority owner of a dealership in Queens, New York,which had filed for bankruptcy and subsequently went out of business. TheSecond Department, Appellate Division affirmed the trial court’s narrowingof the fraud claim but held that the breach of fiduciary duty claim was notbarred by the applicable statute of limitations. In New York, two possiblelimitations periods apply to a breach of fiduciary duty claim, depending inpart on whether fraud is an essential element of the claim. The SecondDepartment held that the fraud allegations were not incidental to the breachof fiduciary duty claim, and that the longer statute of limitations applied.

Liberty Lincoln-Mercury, Inc. v. Ford Motor Co., 562 F.3d 553 (3d Cir. 2009).

I represented Ford Motor Company in an appeal of an injunction orderprohibiting Ford from continuing a wholesale price increase on newvehicles sold to New Jersey dealers, which the dealers alleged was aviolation of the New Jersey Franchise Practices Act. The NJFPA providesfor certain levels of reimbursement for warranty work performed by dealers.To recover the increased cost of doing business, Ford increased thewholesale price of vehicles to New Jersey dealers, which the district courtheld subverted the NJFPA’s warranty reimbursement provision, andenjoined the surcharge. The Third Circuit reversed the injunction order dueto Plaintiffs’ failure to show irreparable harm.

DaimlerChrysler Financial Services Americas, LLC v. Wages, 294 Ga. App. 494,(2008).

DaimlerChrysler Motors Co., LLC v. Jackson, 294 Ga. App. 498 (2008).

DaimlerChrysler Motors Co., LLC v. Warnell, 294 Ga. App. 500 (2008).

DaimlerChrysler Motors Company, LLC v. Clemente, 294 Ga. App. 38 (2008).

In these four related appeals, I represented DaimlerChrysler MotorsCompany, LLC in cases brought by customers of a Dodge dealer that hadfailed to pay off the loans on vehicles traded in by these customers. Thecustomers asserted a number of claims, including breach of contract,violations of the Georgia Motor Vehicle Franchise Practices Act, andGeorgia RICO. The customers also alleged that they received poor customerservice from the dealer and that Chrysler was liable for negligentmisrepresentation in certifying the dealer as a “Five Star Dealer.” The Courtof Appeals held that Chrysler was not vicariously liable for the actions of thedealer and that certifying a dealer as a “Five Star Dealer” did not constitute


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a representation that can be reasonably relied upon to support a negligentmisrepresentation claim.

Tri-County Motors, Inc. v. American Suzuki Motor Corp., 301 Fed. Appx. 11, 2008WL 5063291 (2d Cir. 2008).

I represented American Suzuki Motor Corporation in a case brought by apotential purchaser of a Long Island dealership. After Suzuki rejected thepotential purchaser’s application to become a Suzuki dealer, the potentialpurchaser sued for breach of contract, tortious interference with contract,and violations of the New York Motor Vehicle Dealer Act. After contentiousdiscovery, including claims that Suzuki had failed to properly search for andproduce electronic documents, the trial court granted Suzuki’s motion forsummary judgment and denied plaintiff’s motion for sanctions for allegeddiscovery violations. On appeal, the Second Circuit affirmed.

Ford Motor Co. v. Lawrence, 279 Ga. 284 (2005).

In this product liability action, Ford had been ordered to producedocuments protected by the work product doctrine and had been sanctionedfor the failure to produce the documents. I represented Ford in thesubsequent mandamus action against the trial court judge, seeking reviewof those orders. The Supreme Court affirmed the dismissal of themandamus action because in the interim, Ford had been able to obtain asupersedeas from the Court of Appeals and thereby was able to obtaininterlocutory appellate review of the sanctions order. I also representedFord in the Court of Appeals.

Security Life Ins. Co. of America v. St. Paul Fire & Marine Ins. Co., 273 Ga. App.91 (2005).

I represented Security Life Insurance Company in a case brought byinsureds claiming fraud and violations of Georgia RICO based on theforgery by an insurance agent on an application for insurance and thesubsequent denial of coverage. The case was originally tried in 1996, and thevarious appeals generated ten appellate decisions. Ultimately, the judgmenton the Georgia RICO claim was reversed. In this last reported decision, theCourt of Appeals adopted the Supreme Court’s decision relating to thecalculation of pre-judgment and post-judgment interest, which resulted inthe striking of pre-judgment interest.

U.S. v. Howell, 425 F.3d 971 (11th Cir. 2005).

I represented the defendant in this appointed case before the EleventhCircuit, challenging the government’s confiscation of the defendant’sfirearms after the defendant was convicted of a felony.

20. Please submit a representative sample of your writing (e.g. brief, order, opinion,


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opinion letter).

I enclose the concurring opinion in Nasir v. Gwinnett County State Court, 341 Ga.App. 63 (2017) (McMillian, J., concurring) as a representative writing sample.Although I rely upon my staff attorneys extensively as a Court of Appeals Judge,from time to time, I will undertake drafting an opinion from start to finish. Thisopinion is one of those that I researched and drafted.

21. Describe your legal practice, other than litigation experience, during the past five (5)years as it may relate to office and business administration as well as any other phasesof your practice.

Currently, I serve as Vice Chief Judge on the Court of Appeals and as a member ofthe Court’s Executive Council. Previously, I chaired the Court of Appeals’ InternalOperations Manual Committee, which led the effort to successfully transition fromthe Court’s long-standing practice of not having 2-1 decisions, as well as other newprocedures that resulted from having expanded jurisdiction in 2017. I have alsoserved on the Court’s Rules Committee, Technology Committee, PersonnelCommittee, Orientation Committee for New Judges, and Staff Attorney CLECommittee. I also currently serve as Chair to the Judicial Council’s Court ReportingMatters Committee and am the court’s representative on the Judicial Council’sTechnology Committee. Until recently, I represented the Court on the Chief Justice’sCommission on Professionalism. Also, in 2019, I was appointed by Chief JusticeHarold Melton to serve on the Judicial Council’s Ad Hoc Committee for thePrevention of Sexual Harassment in the Judicial Branch, which issued a report andrecommendations in December 2019 on best practices, policies, and training toprevent sexual harassment within the different classes of courts.

As the only State Court Judge in Fayette County, I handled all of the administrativeresponsibilities associated with a Chief Judge and department head within FayetteCounty government, including hiring and supervising a Staff Attorney,administrative assistant, and court reporter; projecting expenses; and setting abudget. I worked closely with the State Court Clerk to update and incorporatetechnology to more efficiently track and administer cases and motions.

I was also active in the Council of State Court Judges, including serving on theLegislative Committee and Uniform Rules Committee.

In my private practice, I have held numerous leadership and management positionsat Sutherland, including Diversity & Inclusion Partner for the Litigation Group,Work Assignment Coordinator, Transition into Law Practice Mentor, and CareerPlanning Program Mentor. I also was on the team that explored and implementedthe docketing system for Sutherland’s litigation group, and I supervised thedocketing department in the Atlanta office.


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I have also served on a number of committees within the firm, including the HiringCommittee, Technology Committee, Professional Development Committee, andDiversity Committee. I also founded Sutherland’s Asian Attorney Affinity Groupand was an active member of Sutherland’s Women Attorney Group.

22. Have you ever been engaged in any occupation, business, or profession other thanthe practice of law? If so, please give the details including dates.

Other than a work-study job at the Economics Department at Duke University,clerical positions in the summers during my time at Duke University, and working ina Chinese restaurant as a hostess and cashier while in high school, I have not engagedin any occupation, business or profession other than the practice of law.

23. Have you ever been discharged from employment for any reason or have everresigned after being informed that your employer intended to discharge you?

No

24. Are you presently acting in a fiduciary capacity? If so, state details.

Currently, I serve on the Board of Advisors for the Atlanta Lawyers’ Chapter of theFederalist Society for Law and Public Policy Studies. I also serve on the Board ofDirectors for the following non-profit organizations: (1) Georgia Asian PacificAmerican Bar Association, (2) Georgia Legal History Foundation, and (3) LandmarkChristian School.

25. Please describe your opinion of the role that a law clerk or a staff attorney shouldserve with respect to assisting a judge.

Based on my experience working with staff attorneys on the Court of Appeals and asa law clerk for Judge O’Kelley in the Northern District of Georgia, I believe that a staffattorney plays a significant role in assisting the judge. On the appellate level, staffattorneys are vital in reviewing the record, researching case law, and preparing thejudge for oral argument. Given the caseload of the Court of Appeals, the staff attorneyis essential in summarizing the arguments of the parties and issues on appeal for thejudge’s consideration and to prepare for oral argument. Once the issues areidentified, the judge can then direct the staff attorney to specific areas to research.The staff attorney can also perform an initial review of the briefs, transcripts,affidavits, depositions, discovery responses, or other materials in the record tohighlight issues for the judge’s attention. After a thorough review of the record andresearch of the issues, the staff attorney should work closely with the judge inmemorializing the judge’s reasoning and analysis in a written opinion. It isincumbent on the judge, however, to review thoroughly and revise as necessary anyopinion initially drafted by the staff attorney.

A good staff attorney should also serve as a “sounding board” for the judge to candidlydiscuss issues and opposing points of view since judges are prohibited fromconferring with anyone about their cases except for their staff and other judges.


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26. Please describe how a judge of the court for which you are applying might improvethe efficiency and effectiveness of the legal system in administering justice.

Based on my observations and experience sitting by designation on the SupremeCourt on two matters, I believe that a Justice is in a unique position to improve theefficiency and effectiveness of the legal system. Because Supreme Court justicesconference on each case, each justice has an opportunity to shape all of the decisionsrendered by the Court. I hope to bring my background and perspective as a civillitigator, trial judge, and appellate judge to ensure that opinions are based on soundlegal reasoning, provide clear guidance to parties and lower courts, and anticipateissues that may arise in future cases.

Justices on the Supreme Court also have opportunities to take leadership positionsin the bench and bar. Because the State Bar of Georgia was created as anadministrative arm of the Supreme Court, the Justices oversee the work of the Boardof Governors. Likewise, the Supreme Court has the duty to set and implementstandards for admission to the bar through the Office of Bar Admissions and Boardto Determine Fitness of Applicants. The Supreme Court also is responsible forplanning, policy, and administrative matters for all levels of courts in Georgia, whichis accomplished through the Judicial Council. There are various ways that individualJustices can serve through the Judicial Council. Also, with my background growingup in a bilingual family and the language issues that I observed while on the StateCourt, I am particularly interested in and supportive of the work of the SupremeCourt’s Commission on Interpreters.

27. Have you ever been sued by a client? If so, please give particulars.

No

28. Have you ever been a party or otherwise involved in any legal proceedings? If so,please give the particulars. Do not list proceedings in which you were a guardian adlitem or stakeholder, or otherwise involved in your capacity as legal counsel to aparty. Include all proceedings in which you were a party in interest, a witness, namedas a co-conspirator or a co-respondent, or grand jury investigation in which youfigured as a subject, or in which you appeared as a witness.

In June 2019, pro se appellant Sam Levine, who had recently lost an appeal, appliedfor a warrant for my arrest on the grounds that the opinion to which I concurredcontained false statements. The other members of the panel, Chief Judge ChristopherMcFadden and Judge Stephen Goss, were also served with arrest warrantapplications, as well as members of the Supreme Court of Georgia. A hearing washeld in Fulton County Magistrate Court on June 24, 2019, Case No. 19MAGC-03598,and the applications for arrest were denied.

After the arrest warrant applications were denied, Mr. Levine filed a civil actionagainst me, Chief Judge McFadden, Judge Goss, certain members of the SuperiorCourt of DeKalb County, certain members of the Superior Court of Fulton County,


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staff attorneys and calendar clerks for some of the trial judges, the electronic casemanagement system provider and its CEO, and the Clerk of the DeKalb CountySuperior Court for declaratory and injunctive relief and damages from racketeeringand conspiracy to engage in a pattern of racketeering activity, based on the manycomplaints and appeals asserted by Mr. Levine, which had been denied. Thedefendants have filed answers and motions to dismiss, which remain pending.Superior Court of DeKalb County, Case No. 19CV9808.

As a State Court Judge, a defendant (Abijola Laosebikan) who had a number of casesbefore the court, applied multiple times to have a warrant issued for my arrest,alleging that I conspired with his creditors, creditors’ attorneys, and the bank togarnish his bank accounts in violation of Georgia RICO. The warrant application wasdismissed after hearing in the Superior Court of Fayette County.

To the best of my recollection, while I was serving as a law clerk for the HonorableWilliam C. O’Kelley in the Northern District of Georgia, the law clerks were namedas defendants as a generic group, along with all judges in the Northern District ofGeorgia and the Eleventh Circuit, in a pro se prisoner action for violating hisconstitutional rights. I was not named specifically in the case and am unaware of itsdisposition.

29. Have you published any legal books or articles? If so, please list them, giving thecitations and dates.

What Counsel Should Know About the Court of Appeals, VERDICT, JOURNAL OF

THE GEORGIA TRIAL LAWYERS ASSOCIATION (Spring 2015)

What Will it Take to Get You in a New Car Today?: A Proposal for a NewFederal Automobile Dealer Act, 45 GONZ. L. REV. 67 (2010).

Hertz Corp. v. Friend: Supreme Court Clarifies Where a Corporation’s “PrincipalPlace of Business” is for Determining Diversity Jurisdiction, ABA CorporateCounsel eNewsletter (April 2010) (CO-AUTHOR WITH JOSHUA A. MAYES).

Discrimination Claims and Diversity Initiatives: What’s a Franchisor to Do?, 28FRANCHISE L.J. 71 (2008)(CO-AUTHOR WITH KELLY J. BAKER).

Collective Bargaining Agreements, Mandatory Arbitration, and Title VII:Varner v. National Super Markets, Inc., 32 GA. L. REV. 287 (1997).

30. List any honors, awards, or other forms or recognition which you have received.

Professional

2019 Distinguished Judicial Service Award from the Young Lawyers Division ofthe State Bar of Georgia


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2018 Women’s Leadership Award from the Georgia Asian Pacific American BarAssociation

2016 Law & Justice Award from Women Looking Ahead Magazine

2016 Trailblazer Award by the Vietnamese American Bar Association of Georgia

2015 and 2014, 25 Most Influential Asian Americans of Georgia by the GeorgiaAsian Times

2015 Distinguished Service Award from the Asian American Heritage Foundation

2014 Notable Woman of History by the Starr’s Mill Chapter of the Daughters ofthe American Revolution

2013 Community Champion by the Asian American Legal Advocacy Center

2012 National Asian Pacific American Bar Association Best Lawyers Under 40

2010 Distinguished Alumni Award by Westminster Schools of Augusta, Georgia

“2010 Most Powerful and Influential Women of Georgia” by the NationalDiversity Council

Named a Rising Star by Georgia Super Lawyers for 2007 and 2010

Academic

University of Georgia School of Law, summa cum laude

University of Georgia School of Law, Order of the Coif

Corpus Juris Secundum Award for Scholastic Excellence, Torts

Class of 1933 Torts Award for Excellence in the Study of Torts Law

Woodruff Scholar

Editorial Board, Georgia Law Review

Duke University, magna cum laude

Phi Beta Kappa

Duke Review, 1994-95 Senior Editor; 1992-94 Associate Publisher

Valedictorian, Westminster Schools of Augusta


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31. List all bar associations and professional societies of which you are a member andgive the titles and dates of any offices which you have held in such groups. Please alsolist chairmanships of any committees in bar associations and professional societies,and memberships on any committees which you believe to be of particularsignificance.

Atlanta Lawyer’s Chapter of the Federalist Society for Law and Public Policy Studies,Board of Advisors, 2011 to present

Chair, Judicial Council’s Standing Committee on Court Reporting Matters, 2019 topresent

Chief Justice’s Commission on Professionalism – In 2017, I co-chaired the searchcommittee for a new executive director at the request of the Chief Justice.

State Bar of Georgia – In 2014, I served on the search committee for the ExecutiveDirector of the State Bar. I have also served on the committee to reinvigorate the StateBar’s Legal Fellows program.

Georgia Asian Pacific American Bar Association, 2017 President; 2016 President-Elect; 2015 Corporate Secretary; Board of Directors, 2012 to present

GAPABA Law Foundation, Board of Directors, 2014 to 2017

Georgia Legal History Foundation, Board of Trustees, 2013 to present

Member, Judicial Council’s Ad Hoc Committee to Prevent Sexual Harassment in theJudicial Branch of Government, 2019

National Asian Pacific American Bar Association

Lawyers Club of Atlanta

Barrister, Lamar Inn of Court

Fayette County Bar Association

32. Please describe your knowledge of the Code of Judicial Conduct and thecircumstances under which you became familiar with the Code?

I became familiar with Georgia’s Code of Judicial Conduct during the process leadingup to my appointment to the State Court of Fayette County in 2010. As a State CourtJudge, I made it a practice to save a copy of the Code on the desktop of my workcomputer to remind me of the Code and so I can easily access and review it. I havecontinued that practice as a judge on the Court of Appeals.

33. Will you adhere to the letter and the spirit of the Code of Judicial Conduct should yoube appointed?


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Yes

34. You are requested to execute and transmit to the Chairman of the Commission twocopies of the form of Authorization for Access to Information ConcerningDisciplinary Matters included in the application packet. Have you executed thesedocuments and transmitted them to the Chairman with your application materials?

Two copies of the form of Authorization for Access to Information ConcerningDisciplinary Matters are enclosed.

35. If you are now an officer or director of any business organization or otherwiseengaged in the management of any business enterprise, please give details, includingthe name of the entity, the nature of the business, the title of your position, the natureof your duties, and the term of your service. If it is not your intention to resign suchpositions and relinquish participation in the management of any of the foregoingenterprises, please so indicate, giving reasons. List all companies in which you, yourspouse or minor currently children hold stock.

I am not an officer or director of any business organization or otherwise engaged inthe management of any business enterprise. My husband, children and I do not holdstock in any specific company although my husband and I own shares in index stockand bond index mutual funds.

36. Please list all non-professional, charitable, and civic organizations to which youbelong and any service activities in which you have participated in the past two (2)years.

Landmark Christian School, Board of Trustees, 2016 to present; Vice Chair, June2018 to May 2019; Treasurer, June 2019 to present.

Fayette County Historical Society, Board of Directors, 2012 to March 2018

ServiceJuris Day at Thomasville Heights Elementary School, June 2018

Dogwood Church, Tyrone, Georgia – In the twenty years that I have been a memberand regular attender of Dogwood Church (formerly Braelinn Church in PeachtreeCity, Georgia), I have served in a number of capacities in the adult, children, andwomen’s ministries, including leading a small group study in our home, writingarticles for the women’s ministry newsletter, facilitating a women’s ministry study,and teaching in the elementary and youth programs.

Operation Christmas Child – As a family, we annually provide gifts for needychildren through Operation Christmas Child.

37. Have you ever been arrested, charged, or held by federal, state or otherlaw-enforcement authorities for violation of any federal law, state law, county ormunicipal law, regulation or ordinance? If so, please give details. Do not include


31

traffic violations for which a fine of $50.00 or less was imposed.

I have been issued four traffic tickets in the following jurisdictions: (1) City of Atlanta(failure to heed officer directing traffic); (2) Tyrone, Georgia (speeding); and (3)Peachtree City, Georgia (speeding); (4) City of Atlanta (speeding). On the first ticket,I pleaded nolo contendere and paid a fine of approximately $50.00 plus costs.Although I cannot recall the fines imposed for the speeding tickets in Tyrone andPeachtree City, each was over $50.00. I also do not recall the dates for the first threetickets, but each was issued more than ten years ago. The last speeding ticket wasissued on January 22, 2018, and I disposed of it by paying a fine on-line of $179.88.

38. To your knowledge, have you ever been the subject of any complaint to or beendisciplined or cited for a breach of ethics or unprofessional conduct by any court(including findings of contempt of court), or by any organization, agency orprofessional group, including but not limited to the State Bar of Georgia or theJudicial Qualifications Commission? If so, provide details.

I am aware of a 2012 complaint to the Judicial Qualifications Commission by myopponent in my election to Fayette State Court relating to campaign activities. Thecomplaint was summarily dismissed as meritless within a month after filing and priorto reaching the investigation stage. I am not aware of any other complaint to anyother organization, agency, or professional group.

39. During any period of public service (appointed or elected), please state whether youhave ever been the subject of any complaint, enforcement action, or entered into anyconsent or compliance order with the Georgia Government Transparency andCampaign Finance Commission (or its predecessor), the Federal ElectionCommission, any municipal or county governing authority, or other campaignfinance regulatory body in another jurisdiction. Please also state whether you haveever paid a civil penalty or late fee to the Commission or any other campaign financeregulatory body in another jurisdiction, including but not limited to the filing of (orfailure to file) a campaign disclosure report or personal financial disclosure report asrequired by applicable law. If so, please provide details.

None

40. The Governor’s Ethics Order prohibits the appointment by the Governor of anyperson to fill a judicial vacancy who has: (a) made a contribution to, or expenditureon behalf of, the Governor or the Governor’s campaign committee at any time afterthe vacancy occurs; or (b) who has made a contribution to, or expenditure on behalfof, the Governor or the Governor’s campaign committee within the 30 dayspreceding the vacancy unless such person requests and is granted a refund ofsuch contributions or reimbursement of such expenditure.

(1) Have you made a contribution or expenditure as described in 40(a) above?

No

In the Court of Appeals of Georgia

A16A1611. NASIR v. GWINNETT COUNTY STATE COURT et al.

MCMILLIAN, Judge, concurring specially.

Although I concur fully in the majority’s opinion, I write separately to explain

why the plain language of OCGA § 35-3-37 does not support the conclusion reached

by the dissent.

With respect to Nasir’s request to restrict his criminal record under OCGA §

35-3-37, our law generally provides public access to “criminal history record

information,” which is defined in OCGA § 35-3-30 (4) (A) as “information collected

by criminal justice agencies on individuals consisting of identifiable descriptions and

notations of arrests, detentions, indictments, accusations, information, or other formal

charges, and any disposition arising therefrom, sentencing, correctional supervision,

and release.” (Emphasis supplied.) See OCGA §§ 35-3-34; 35-3-35. Clearly, Nasir’s

nolo plea and the sentence imposed thereon constitute a “disposition” arising from

the charges against him.

While access to criminal history information is broadly granted, the primary

statute restricting access1 is very specific, and in order to determine if access should

or may be restricted, we must look to the specific provisions of the statute that

provide for restricted access. See OCGA § 35-3-37;2 Mosley v. Lowe, 298 Ga. 363,

364 (1) (782 SE2d 43) (2016). As summarized by our Supreme Court:

Under the current version of OCGA § 35-3-37, individuals are afforded

the right to automatic restriction of their “criminal history record

information” pertaining to most arrests ultimately ending in non-

1 Pursuant to OCGA § 35-3-37 (a) (6), records that are “restricted” are“available only to judicial officials and criminal justice agencies for law enforcementor criminal investigative purposes or to criminal justice agencies for purposes ofemployment” and are prohibited from being “disclosed or otherwise made availableto any private persons or businesses.”

2 We note that OCGA §§ 35-3-34 and 35-3-35 also provide for certain criminalhistory records to be shielded, including records of individuals discharged under ourfirst offender statute and the prosecution records of cases assigned to accountabilitycourts when it is contemplated that the charges will be dismissed or nolle prossedupon successful completion of the program, as set out in OCGA § 42-8-62.1 andOCGA § 15-1-20, respectively. Nasir has not asserted these statutes as grounds forthe relief he requests.

2

conviction. OCGA § 35-3-37 (h). As compared to expungement under

prior law, restriction is thus available as to a broader range of criminal

dispositions, with fewer exceptions. Compare OCGA § 35-3-37 (h)-(j),

with former OCGA § 35-3-37 (d) (2012). In addition, record restriction

generally takes effect automatically as to eligible arrests, see OCGA §

35-3-37 (h) (“[a]ccess shall be restricted by the [GCIC]”), whereas

expungement was accomplished only by request, see former OCGA §

35-3-37 (d) (1) (2012) (individual “may request” expungement).

(Footnotes omitted.) Mosley, 298 Ga. at 364-65. Thus, the majority properly focused

its inquiry on whether Nasir has stated a claim to restrict his criminal record under

OCGA § 35-3-37 (h) through (j).

The first and overarching principle of statutory construction is that when

construing a statute, “we look at its terms, giving words their plain and ordinary

meaning, and where the plain language of a statute is clear and susceptible of only

one reasonable construction, we must construe the statute according to its terms.”

(Citation and punctuation omitted.) Mahalo Investments III, LLC v. First Citizens

Bank & Trust Co., 330 Ga. App. 737, 738 (769 SE2d 154) (2015). In other words,”[i]f

the statutory text is clear and unambiguous, we attribute to the statute its plain

meaning, and our search for statutory meaning is at an end.” (Citation and

3

punctuation omitted.) Nguyen v. Southwestern Emergency Physicians, P.C., 298 Ga.

75, 79 (2) (a) (779 SE2d 334) (2015).

The dissent finds that Nasir may petition to restrict his criminal record under

OCGA § 35-3-37 (h) (2) (A)3 and (i) (1) (A)4 purportedly because these provisions

do not “clearly prohibit Nasir – who entered a nolo contendere plea to a single count

of misdemeanor theft and had the remaining counts nolle prossed – from obtaining

relief.” That is not what the text of subsection (h) (2) (A) provides, which is that a

criminal history record is restricted only when “all charges” are dismissed, not some

of the charges as in Nasir’s case. The dissent then turns to the legislative intent in

3 Subsection (h) (2) (A) provides for restricted access where “[e]xcept asprovided in section (i) of this Code section, all charges were dismissed or nolleprossed[.]”

4 OCGA § 35-3-37 (i) (1) (A) in turn provides:

After the filing of an indictment or accusation, an individual’s criminal

history record information shall not be restricted if: (1) The charges

were nolle prossed or otherwise dismissed because: (A) Of a plea

agreement resulting in a conviction of the individual for an offense

arising out of the same underlying transaction or occurrence as the

conviction.

(Emphasis supplied.)

4

allowing defendants to enter nolo contendere pleas and finds that because a nolo plea

does not qualify as a conviction under subsection (i), Nasir is entitled to relief. Again,

the text of subsection (i) is directly opposite to the dissent’s conclusion as that

provision only speaks of circumstances when a criminal history record “shall not be

restricted.” See Mosley, 298 Ga. at 366 (3) (explaining that subsection (i) describes

“disqualifying exceptions” to the record restriction provisions set out in subsection

(h) (2) (A)).

The dissent’s error stems from going beyond the plain language of the text of

the statute, which is only susceptible to one reasonable interpretation, and its analysis

exemplifies why it is important to apply the rules of statutory construction in a

principled way. If the plain language of the text of the statute is only susceptible to

one reasonable interpretation, a court need not resort to other rules of construction

such as construing statutory language to avoid surplusage. See Nguyen, 298 Ga. at 79.

That is because resorting to other rules of statutory construction in the absence of

ambiguity may create ambiguities where none exist. See Mahalo, 330 Ga. App. at

739. In failing to apply this bedrock principle of statutory construction, the dissent

was led astray to reach the absurd result that “all charges” means “some of the

5

charges,” and the criminal record “shall not be restricted” becomes “shall be

restricted.” See OCGA § 35-3-37 (h) (2) (A) and (i) (1) (A).

Nor do I believe that the dissent’s conclusion can be saved by some notion that

restricting the record effectuates legislative intent. Although it is true that in

construing statutes, we have been directed to seek to effectuate the intent of the

legislature,5 that does not mean that the Court is permitted to “rewrite statutes to

promote policies that are not expressed in that legislation – much less read into a

statute a policy that contradicts the text of the law and is derived without citation to

any other source.” Anthony v. American General Financial Svcs., Inc., 287 Ga. 448,

450 (697 SE2d 166) (2010). We are bound to effectuate the intent of the legislature

as expressed in the words and language of the text that the legislature has deemed to

enact.6 See Mahalo, 330 Ga. App. at 737.

5 See Lue v. Eady, 297 Ga. 321, 332 (773 SE2d 679) (2015); Abdel Samed v.Dailey, 294 Ga. 758, 763 (2) (755 SE2d 805) (2014); Hankla v. Postell, 293 Ga. 692,695 (749 SE2d 726) (2013).

6 Thus, the dissent improperly relies on the “Final Report of the SenateExpungement Reform Study Committee (2013)” to discern the spirit and intent of thelegislation. See Merritt v. State, 286 Ga. 650, 656-57 (690 SE2d 835) (2010)(Nahmias, J., concurring specially) (questioning “how the ‘intention’ of a multi-member legislative body is to be determined, if not from the text of the laws that itactually passed”).

6

For these additional reasons, I join in the majority’s opinion that Nasir’s claim

for restriction of his criminal record was properly dismissed.

I am authorized to state that Presiding Judge Dillard and Judge Branch join in

this opinion.

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