{"id":246,"date":"2014-09-18T03:24:02","date_gmt":"2014-09-18T07:24:02","guid":{"rendered":"https:\/\/defiantly.net\/?p=246"},"modified":"2023-03-22T13:20:37","modified_gmt":"2023-03-22T17:20:37","slug":"chan-v-ellis-text-of-objection-to-amended-application-of-mccormack-pro-hac-vice-appearance","status":"publish","type":"post","link":"https:\/\/defiantly.net\/?p=246","title":{"rendered":"Chan v. Ellis: Text of Objection to Amended Application of McCormack Pro Hac Vice Appearance"},"content":{"rendered":"

IN THE SUPREME COURT OF GEORGIA<\/span> <\/strong><\/p>\n

MATTHEW CHAN,\u00a0 Appellant<\/strong>,<\/p>\n

v.<\/p>\n

LINDA ELLIS, Appellee<\/strong><\/p>\n

DOCKET NO: S14A1652<\/a>
\nLOWER COURT NO: SU13DM40
\nCOURT OF APPEALS DOCKET NO.: A14A0014<\/a><\/p>\n

.<\/p>\n

APPELLANT\u2019S OBJECTION TO AMENDED APPLICATION OF TIMOTHY B. MCCORMACK FOR PRO HAC VICE APPEARANCE<\/strong> <\/span><\/p>\n

\u00a0\u00a0 \u00a0Initially, Appellant wants to make clear to this Court that Appellant has no objection to the pro hac vice admission of attorney Timothy B. McCormack or to his being given leave to file an amicus curiae brief and orally argue the points in that brief\u00a0 on behalf of Appellee. Mr. McCormack was so admitted and given such leave in the Georgia Court of Appeals and had already filed his amicus curiae brief with the Georgia Court of Appeals at the time of this case\u2019s transfer to the Supreme Court of Georgia. 1<\/p>\n

Footnote [1] For some reason, that brief and Appellant\u2019s Reply Brief did not get docketed with the case when it was transferred and I have been in communication with the Court of Appeals\u2019 clerk\u2019s office a few times to have those briefs sent to the Supreme Court for docketing. \u00a0\u00a0\u00a0\u00a0<\/em><\/p>\n

\u00a0\u00a0 \u00a0Appellant does object to the amended application<\/a> in that it is unclear if it seeks to expand the scope of Mr. McCormack\u2019s appearance and role in the case; it also apparently seeks to introduce new facts and arguments not addressed in the trial court. While attorney for Appellee states that the application has a \u201climited purpose,\u201d the application asks for leave to allow Mr. McCormack to:<\/p>\n

(a) make oral argument;<\/p>\n

(b) file supplemental brief(s) on behalf of Appellee;<\/p>\n

(c) file responsive brief(s) on behalf of Appellee;<\/p>\n

(d) file supplemental brief(s) on behalf of unknown third parties who may wish to remain anonymous;<\/p>\n

(e) file responsive brief(s) on behalf of unknown third parties who may wish to remain anonymous;<\/p>\n

(f) appear pro hac vice on behalf of himself and his law firm because he has an interest in the outcome of this litigation.<\/p>\n

This hardly seems like a \u201climited purpose\u201d but in fact seems like a request for admission pro hac vice for leave to appear as an additional attorney of record for Appellee because an amicus would not be allowed to file supplemental and responsive briefs on behalf of a party.<\/p>\n

\u00a0\u00a0 \u00a0In the Court of Appeals, Appellee initially moved to have Mr. McCormack admitted pro hac vice as both amicus curiae and associate counsel. Appellant filed an objection on various grounds and Appellee then filed an amended application stating that it was \u201cin error\u201d to request Mr. McCormack\u2019s admission as associate counsel and that the admission was to be only as amicus curiae. The Court of Appeals granted only the amended application and admitted Mr. McCormack for the purpose of allowing him to submit an amicus curiae brief. Now\u00a0 in the Supreme Court the reverse has happened: Appellee originally filed an application for Mr. McCormack\u2019s admission solely as amicus curiae, which Appellant has not opposed, and now has filed another amended application to change the nature of\u00a0 Mr. McCormack\u2019s admission to seemingly act as amicus and associate counsel.<\/p>\n

\u00a0\u00a0 \u00a0Appellant would not object to Mr. McCormack\u2019s admission pro hac vice as an additional attorney of record for Appellee but it is respectfully submitted that he cannot do both \u2013 serve as amicus curiae and as an attorney of record for a party. Appellant objects to this request to serve this dual role.<\/p>\n

\u00a0\u00a0 \u00a0Appellant also objects to the application\u2019s reference to anonymous individuals and entities that allege \u201cvictimization\u201d and allege to have \u201cfear of retaliation\u201d from the \u201ctactics and positions\u201d taken by Appellant.\u00a0 While Appellant is confident that this Court will see that those \u201ctactics and positions\u201d are merely \u201cspeech,\u201d Appellee\u2019s application needlessly tries to taint the Court\u2019s view of Appellant before it has read the briefs or heard oral argument.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0 Appellee or Mr. McCormack could have just as easily have applied for leave to allow Mr. McCormack to appear as amicus curiae, as he did in the court below, without making these references or at least have waited to see if any entity or individual would lend their name in support of Appellee\u2019s (or apparently Mr. McCormack\u2019s) positions.2<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Finally, the application, by making those references, seeks to bring new issues and new facts before this Court that were not presented to the trial court and which are not part of the trial court record.\u00a0 An amicus curiae \u201chas no control over the litigation and . . . must accept the case before the court with the issue made by the parties.\u201d Fulton County v. Bartenfeld, 257 Ga. 766 (1988).\u00a0 Additionally, evidence which is only contained in an amicus curiae brief should not be reviewed or used by the court. Collier v. Evans, 199 Ga.App. 763 (1993).<\/p>\n

Footnote [2] It should be noted that one of the points raised in Appellant\u2019s Brief is that the trial court allowed into evidence a lengthy affidavit from Mr. McCormack which Appellee submitted as part of her case in chief. Mr. McCormack therefore has also served as an evidentiary witness in this matter.<\/em><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The Appellant therefore asks that the Court grant the application only to the extent of allowing Mr. McCormack to appear and orally argue pro hac vice as either an additional attorney of record for Appellee or as an amicus curiae but not both.\u00a0 Regardless of Mr. McCormack\u2019s role in this case, it is also respectfully requested that any briefs submitted be limited by the evidentiary record already created in the trial court.<\/p>\n

Respectfully Submitted, this 13th day of August, 2014,<\/p>\n

\u00a0Respectfully,<\/p>\n

\u00a0\/s\/ Oscar Michelen<\/span>
\nOscar Michelen
\nCounsel for Appellant
\nGeorgia Bar No.: H10048
\nCuomo LLC
\n200 Old Country Road
\nSuite 2 South
\nMineola, NY 11501
\n516-741-3222
\nomichelen@cuomollc.com<\/p>\n

.<\/p>\n