OUTLANDISH CONSPIRACY THEORIES: Counterfeiting sovereign immunity
Those who know the past are doomed to take advantage of it
“The Court cannot overlook a remedy the legislature, in its wisdom, saw fit to create.” — Georgia Court of Appeals Judge Yvette Miller
Sovereign immunity is an ancient doctrine from the days of divine right kings that has now been repackaged and expanded for Georgia’s ruling class. Even in the days of our state’s namesake, King George II, sovereign immunity never absolved the King’s ministers for committing crimes, but since 2016, Georgia claims it immunizes state officials for any felony you can think of — from murder to rape to theft of taxpayer money.
The question the governor, attorney general, and the courts of Georgia are now avoiding, is whether sovereign immunity likewise allows them to commit fraud on the federal government with impunity. But that is getting ahead of the story.
Sovereign immunity proponents are backward-looking and argue the doctrine is founded in immutable common law from the mists of prehistory. That is only because sovereign immunity protection for crimes can nowhere be found in modern law of Georgia.
It is important, however, before debunking the theory, to explain exactly what sovereign immunity means, since not everyone has gone to law school or studied Blackstone’s Commentaries from the 1700s.
It means, in a word, you’re screwed. Even if King George II’s Chancellor of the Exchequer or the chancellor of the University System of Georgia were to falsify government financial records to frame you for embezzlement, or threatened you with the vilest extortion, you could not go to court and sue them. Even if you have hard evidence a state official committed crimes against you that would inflame a jury to award a hundred-million-dollar judgment against the man who abused his government position of public trust to harm you, he gets to laugh in your face, because sovereign immunity bars you from taking him to trial altogether.
You don’t get a judge or jury. You never even get to present your evidence. It’s over before it begins. Of course, that sounds downright un-American.
Sovereign immunity, nonetheless, has been expanded to such an extent, in Georgia, that either of those chancellors (if the king’s chancellor could come back from the past) could commit murder most vile on you. The attorney general of this state could shoot you on Peachtree Street, but unless the attorney general decided to criminally prosecute himself, you are out of luck. You have no options in civil court.
Some may say sovereign immunity sounds like a stupid idea in a country with no king, and should be abolished altogether. In fact, in 1792 the US Supreme Court told the state of Georgia it had no sovereign immunity protection under the U.S. Constitution.
But the white male landed gentry — the only people who had any say in the 1790s — has been going ape ever since. Suffice it to say that the law handed down over the centuries only provides one avenue of relief: A state, like the most beneficent king you could ever find in the Bible, can waive its sovereign immunity protection — and consent to be sued.
Reviving the rule of King George II
Remember when I said the modern Georgia Tories say sovereign immunity has been the law from time immemorial, as though carved in stone by Moses. That does not turn out to be true.
In the last installment, I said that in the course of expanding sovereign immunity, with the support of the governor and the attorney general, the courts have spearheaded a spirited campaign of judicial retroactivism. By retroactive I mean they are taking society backward in time. Whether to the time of King Edward Longshanks or General Longstreet does not matter.
As to judicial activism, the important point is that while the retroactive judges are changing the rules to coincide with their antebellum viewpoint, they are ignoring the law as they found it written on the books today.
And this rewriting of the laws — by judicial officers lacking that authority, which properly belongs to the legislature — has been done with judges appointed by the governors leading the way, and sometimes with the assistance of an attorney general also appointed by a governor, as if it were a single branch of government as opposed to two separate branches.
Sovereign immunity, meanwhile, is not the bedrock principle, from which there is no escaping, they make it out to be. Until 1991, in Georgia, sovereign immunity was waived — meaning you could sue the state — if the state was covered by liability insurance for the claim. Today, the state has insurance coverage for any and all legal claims brought against it. Whenever the state is sued, insurance even covers the state’s legal fees. That would seem to solve the problem, but that isn’t the law anymore because Georgia changed it.
In 1991, without even knowing it, Georgians passed a constitutional amendment to say that sovereign immunity can only be waived — to allow a lawsuit against a state agency or officer — if the legislature, in its infinite wisdom, expressly authorizes a particular kind of lawsuit — and thereby gives the state’s consent to be sued, not for anything, but within that specific limitation.
So how does that law apply in everyday life?
Sovereign immunity for racketeering attorney generals
The issue of sovereign immunity came up, in my experience, about 10 years ago. I was just a corporate lawyer minding my own business when I was called upon to defend a University of Georgia professor. Then-UGA president Michael Adams was trying to revoke the tenure of Adams’ most vocal critic, UGA professor Dezso Benedek, so that Adams could fire him for his unfavorable opinions. The task of defending Benedek against the University of Georgia, where I was once First Honor Graduate, fell to me, not because I was some tenure revocation genius, but only because nobody else would do it.
Benedek won the tenure battle. The revocation failed miserably, and Benedek is a UGA professor today because of it.
The reason we won the tenure battle, though, is what has caused the commotion in the pro-sovereign immunity community. We won because the Georgia attorney general was caught red-handed trying to hide evidence that showed the charges against Professor Benedek were false, and that Adams and the attorney general knew it from the start. The attorney general of Georgia was caught in the act of manufacturing fake evidence to try to frame Benedek, and also caught suborning perjury — that is, trying to get witnesses to lie on the stand under oath — among other felonies.
So I, not knowing any better than to follow the facts and the law, did something that had never been done before: I sued the Board of Regents of the University System of Georgia (USG), the attorney general, the UGA dean who impersonated real UGA students online (which is computer and identity fraud, among other crimes) to manufacture false evidence, the UGA witnesses who perjured themselves, and the kingpin of this whole racketeering scheme, then-UGA president Michael Adams.
I sued them under the RICO statute — which, where there is a pattern of related crimes spelled out in the statute, allows for either a criminal prosecution (which in Benedek’s case could only be brought by the attorney general, against himself, among others). Or, on the same terms as the criminal prosecution, the statute also authorizes a civil RICO action, just like the kind of civil lawsuit for which anybody could go to court for a slip and fall or a car wreck. Those ordinary civil litigants go before a judge and jury to hear their cases, and they get to present their evidence.
But not Dezso Benedek.
Professor Benedek is not Donald Trump with billions to fund a hundred lawsuits at once. But Benedek’s case has bounced for the last 10 years before 13 different judges, and not one of them wanted to hear it, and they all tried their hardest to throw it out without a trial for any reason they could think of.
The important thing to remember is that this is where Attorney General Sam Olens started the argument that state officials have sovereign immunity to commit these RICO felonies. So even if a state office clerk or the attorney general himself were to extort you or attempt to rub you out — much less commit lesser felonies such as evidence tampering, wire fraud, and perjury — you cannot sue them for it.
Take your evidence of crime, said Attorney General Olens, and show it to your mother or your third-grade homeroom teacher — because you are never going to show it to a judge.
Sovereign immunity even bars you from doing discovery that normally occurs in a civil action in order to find more evidence. Sovereign immunity, according to judicial retroactivism in Georgia, prevents you from using the courts to force the government to produce documents and witnesses that may shed more light on the wrong they did to you, or on a criminal conspiracy.
In the vernacular of sovereign immunity, you get thrown out of court like a bum — even if the state cost you a million bucks or, in King George’s day, cut off your head. It is not a doctrine redeemed by any sense of fairness. According to the supposedly conservative judicial activists, that is true even if the wrong was done to you deliberately, with criminal intent.
The RICO statute dethrones sovereign immunity
That is where I have been respectfully begging to differ for the last 10 years, because the Georgia RICO Act meets the new 1991 state constitutional requirement of expressly authorizing a civil RICO action (and the state does have insurance coverage, so it will never cost the state treasury or the taxpayers a thing) against government officials.
In fact, once before, State Labor Commissioner Sam Caldwell and some henchmen in his office were extorting campaign contributions and then stealing the money for themselves. Commissioner Caldwell was criminally prosecuted, but there was also a civil RICO action — just like Professor Benedek’s case against Michael Adams — filed against Caldwell.
Sam Caldwell tried to tell the plaintiff, in that civil RICO action against him, you cannot sue me in a civil RICO action because I am a state official. But the Georgia Supreme Court said not so fast, Sam, we read the RICO statute, and it expressly authorizes a civil RICO action against state government agencies and officials. So there.
The Georgia Supreme Court pointed out, in the case against State Labor Commissioner Sam Caldwell and the other state employees, that the RICO statute defines a “racketeering (or RICO) enterprise” to include “any person,” without limitation, and also to include “governmental entities.” So every time the word enterprise appears in the statute, you can write in its place, instead, governmental entity. And, in fact, enterprise is an important word that is written in the statute in several places.
Based on that reading of the RICO statute, the Georgia Supreme Court told Sam Caldwell to take a hike. Imagine doing extortion and theft and then claiming you could not be held accountable — because you are too high and mighty as a state government official.
In fact, using the statutory language and logic of the controlling Caldwell opinion, the RICO statute says, in the words of the Georgia legislature that conservatives say they respect so much, that a RICO injunction can be lodged against a state government entity (though the Georgia courts recently contradicted this clear conclusion by saying that sovereign immunity barred an injunction to prevent the USG from engaging in RICO extortion and bribery to oust Dr. Daniel Papp and replace him with none other than Sam Olens himself).
The RICO statute also explicitly says that state government employees and agents can violate the statute, and therefore be subject to the remedies, including treble and punitive damages, spelled out by the statute.
One strict rule of statutory interpretation by the courts is to never render any language of the statute meaningless. After all, the legislature put the words in there for some reason. In Georgia, in 2020, we are still waiting for the current courts to tell us why the legislators did not mean anything when they said the RICO statute authorized an injunction against the state and a civil action for damages against employees and officials. We are also waiting for them to tell us why the Georgia Supreme Court did not mean what it said in Caldwell.
Moreover, the crimes listed in the statute that qualify for a RICO action (otherwise known as RICO predicate acts) also include many felonies that would tend to be committed by government officials — such as falsifying state agency financial records and audits to conceal the illegal diversion of taxpayer funds, and using state agency computers to commit financial fraud — which brings us to Anthony Tricoli.
State financial oversight by embezzlers
Since I did not know better than to take on a racketeering conspiracy in state government that had the full cooperation of the courts, other victims who have been steamrolled by the state have come calling.
Anthony Tricoli, the former president of Georgia Perimeter College (GPC), was fired and replaced by the University System of Georgia literally before he knew it — after it was discovered (and later verified by the USG itself) that GPC’s vice president of finance Ron Carruth falsified the financial reports of GPC, and not by some rounding error, but by as much as $37 million at one point.
Anthony Tricoli sued for the financial fraud by Carruth and other complicit state officials that harmed Tricoli. The state of Georgia claimed its officials may commit these crimes with impunity under the protection of sovereign immunity. Even if the defendants did commit the crimes, and Tricoli can prove it, no dice on any trial, no dice on any remedy for the wrong. The state just waves you goodbye.
Tricoli’s trial judge in DeKalb Superior Court, Dan Coursey, put it this way: He said the state officials involved in the fraud were immune because when they were falsifying financial records to steal millions of dollars they were dutifully performing their state “financial oversight activities.”
At the next level in the judicial system, the Georgia Court of Appeals did not adopt Coursey’s colorful theory that cooking the books to hide the theft of taxpayer funds equaled financial oversight.
Nonetheless, they issued an opinion that was curious in many ways, but seconded Coursey’s opinion that victims harmed by the crimes of state officials had no right to sue.
Their reason, without exaggerating: State officials are above it all.
The Court of Appeals opinion, throwing Tricoli’s RICO case out in 2016, said I had advanced an imaginative theory that the state itself could be held accountable, but that was all it was. Imagination.
I did not imagine the language of the RICO statute or the controlling precedent in Caldwell, but the Court of Appeals did not bother to get into that.
Analysis of the impact of the controlling authority in Caldwell: None.
Examination of the language of the RICO statute, as required by the Georgia Constitution: Zero.
One judge was brave enough to read the law
Only one judge on the appeals court panel actually looked at the law and wrote a dissenting opinion. Georgia Court of Appeals Judge Yvette Miller agreed with me that the RICO statute expressly authorizes a suit against the state, waiving sovereign immunity. So maybe it was not just my imagination after all.
Judge Miller is the only judge in the last 10 years to mention anything about the language of the RICO statute and follow it to the same logical conclusion as the Supreme Court previously did in Caldwell (now the state is trying to sanction me and make me pay the state’s legal expenses, because they say no reasonable person could ever believe what the RICO statute says, but they really should not talk about Judge Miller that way).
What is even more extraordinary, in light of the state’s contention that I should be fined many thousands of dollars for arguing state officials have no immunity for RICO felonies, is that an even higher authority than Judge Miller also agrees with me, the Georgia Supreme Court in the days of Caldwell. The attorney general does not like to mention that case — in fact, neither Sam Olens nor his replacement Chris Carr has ever said a word about it in any legal brief or argument.
The Caldwell Supreme Court’s reading of the RICO statute — no sovereign immunity for criminal RICO predicate acts, which is consistent with the statute and Judge Miller’s dissent — also conforms to another provision of the Georgia Constitution.
The Georgia Constitution says that state employees can be held liable in a civil lawsuit for acts taken with actual malice and intent to cause harm — which is consistent with the English common law from the time of Blackstone, before the American Revolution ended the very notion of royalty or any other person standing above the law in this country.
Caldwell was decided in 1984, and the Georgia Constitution says decisions by the Supreme Court are binding — which begs the question of how the opinion rejecting Sam Caldwell’s claim that he could not be subjected to a civil RICO action has been ignored for the last 10 years. The current Georgia Supreme Court, so far, has never addressed the question of whether it agrees with the Georgia Supreme Court in Caldwell that the language of the RICO statute satisfies the constitutional requirement for waiving sovereign immunity protection and allowing civil lawsuits to go forward.
How can it be that the same judicial entity is decided against itself and gives its own Caldwell opinion the silent treatment?
The politically correct court sends a subliminal message to criminals
The Georgia Supreme Court broke the law governing Tricoli’s appeal by refusing to review the case, and left the appeal court opinion standing to deter any other victim of crimes committed by state officials with the temerity to try to hold them accountable. Today, the Tricoli case stands for the proposition that no one can sue a state official who harms a citizen in the commission of a RICO felony.
The Tricoli case was rejected by the state Supreme Court the same morning a hearing was being held on a case filed by Kennesaw State University faculty for an injunction to prevent the USG from forcing Sam Olens on them as KSU president. Thus the Court of Appeals “imagination” opinion in Tricoli, given the Georgia Supreme Court’s silence that came just in time, was the sole basis of throwing out the case against the USG for hiding its own financial fraud by extorting Dr. Dan Papp to resign as president of KSU so that Sam Olens could be appointed to that position. That case was thrown out on the pretense of sovereign immunity, even though the RICO statute expressly authorizes the injunctive relief against the state sought by the KSU plaintiffs, waiving sovereign immunity — and even though the documented allegations in the KSU case of financial fraud, bribery, and extortion had to be admitted by the state in the course of three years of appeals.
The allegations of financial fraud, bribery, and extortion at KSU were filed November of 2016. Three and a half years later, Attorney General Chris Carr — who was appointed to replace Olens — has never answered them. The KSU faculty filed supplemental pleadings since then, with additional evidence of wrongdoing such as real racketeering-style extortion of Dr. Papp, and the Board of Regents changing its policies to cover the tracks of illegal USG activity.
As of April 2020, Attorney General Chris Carr has never filed a responsive pleading to any of them. He never responded to any correspondence on the subject, or answered in any other forum. But the trial court and appeals court ruled in Carr’s favor with no explanation, in one-sentence orders that did not reference a single fact or cite any legal authority.
On March 26, 2020, the Georgia Supreme Court declined to hear the KSU case without explanation, the same as the court did in the Tricoli case. Both times, the highest court in the state allowed its own binding precedent in Caldwell to be steamrolled.
Simply put, it appears the Caldwell precedent no longer suits the philosophy of the current retroactivist court, but the appointed justices don’t know what to do with the binding Supreme Court precedent. That binding precedent is grounded in an analysis of the very words of the RICO statute. Conservatives claim to defer to the legislature, but not when it comes to holding themselves accountable, apparently — or, rather, allowing ordinary citizens of the state to call these latter-day sovereigns before the dock.
From $10 million fraud to a billion
After Tricoli’s case was thrown out without allowing any discovery in 2016, continuing investigation found that the 10 million dollars never accounted for from GPC, to this day, were part of a billion-dollar fraud on the federal government. Five times Tricoli has been barred from adding that evidence to the court record to reopen Tricoli’s case, and Judge Coursey actually blocked a federal criminal investigation by quashing subpoenas and refusing to let Olens, Carruth, and others be confronted with the new evidence.
Attorney General Chris Carr has never answered the new evidence of USG fraud on the federal government, assisted by other state agencies, including the attorney general’s office. In the legal system, such a failure to respond constitutes an admission of the allegations, which are heavily documented. Yet Carr still maintains this attorney should be punished by the state, forced to pay the state’s legal fees, for exposing this state government corruption for which Chris Carr has no answer. Carr has not yet even opined one twit on whether the state enjoys sovereign immunity for defrauding the federal government.
Civil versus criminal RICO
Now, after all this inconclusive wrangling over sovereign immunity protection from a civil RICO action, you may ask why Ron Carruth and his co-conspirators were never simply prosecuted for criminal conduct, for falsifying those financial reports that led to a financial scandal where someone had to be the scapegoat? Why weren’t other state officials prosecuted for committing far greater crimes (while the attorney general who could bring the prosecution is, instead, defending the alleged criminals against the civil RICO actions)?
No one has ever argued that a Georgia government official cannot be criminally prosecuted under the RICO statute. Sam Caldwell was, as we have already noted. And former DeKalb County Sheriff Sidney Dorsey was prosecuted under the RICO statute for gunning his campaign opponent down in his driveway, and also for financial fraud against the county.
Georgia is saying, now, that if Dorsey defrauded you, a private citizen, or gunned you down in your driveway, you could not sue him — in a civil action expressly authorized in the same RICO statute.
There is some indication of why no one was ever criminally prosecuted though $10 million was never accounted for at GPC — that later turned out to be part of a billion-dollar fraud on the federal government, as admitted by Attorney General Carr.
That indication comes in additional evidence that was also discovered after Tricoli’s case was thrown out by the courts on grounds of sovereign immunity. Assistant Attorney General Annette Cowart wrote in a letter right after Tricoli was fired that if Ron Carruth lied to Anthony Tricoli and misled Tricoli on GPC’s finances to the tune of tens of millions of dollars — then that was a private matter between Carruth and Tricoli.
Yes, Cowart actually did write that. Common sense probably tells you that is wrong, on several levels. But, even more to the point, the Georgia legislature has stepped in again and made such misrepresentation of state agency finances a felony — a crime which very explicitly makes it the public’s business under OCGA § 16-10-20.
It certainly makes Carruth’s multimillion-dollar boo-boos the business of the attorney general charged with enforcing the criminal statutes enacted by the Georgia legislature. But Sam Olens did not see it that way, which is why Assistant Attorney General Cowart also wrote in her letter that the attorney general’s office would not conduct a criminal investigation — because there was no evidence of criminal activity at GPC, where financial reports were falsified.
State records later confirmed that two sets of books were kept at GPC , but this criminal violation of OCGA 16-10-20 was taken to be a private matter, as previously noted by Cowart. So, instead of conducting a criminal investigation, Attorney General Olens allowed the USG to investigate itself (the USG, coincidentally, found nothing amiss with the USG), and then the USG appointed Olens to a $500,000 a year position, in violation of its own policies, as president of KSU (after extorting Dr. Papp to leave).
Suffice it to say that Cowart and Olens were not following the law — which it is the attorney general’s job to enforce. Instead, Cowart falsified and misrepresented state audit information to torpedo Tricoli’s case and deny him a hearing before the Board of Regents to which he was entitled by law. On top of the obvious deprivation of constitutional due process, there are several felonies there, but no attorney general ever prosecuted anyone for it.
Nor was anyone ever prosecuted for the evidence and witness tampering, mail and wire fraud, identity and computer fraud, perjury and subornation of perjury that were proven in the Benedek case. Attorney generals do not seem to perceive crimes that are committed in their own office.
As you can see, Georgia’s state government is asking sovereign immunity to cover a lot of ground when it comes to covering for public officials violating their oath of office and violating the state’s criminal statutes.
The logic behind sovereign immunity for crimes
Proponents of sovereign immunity claim, ironically, to be conservatives in favor of limited government. It is no small hypocrisy to argue in the same breath that government officials may act with total impunity, and no one can hold them accountable.
In the RICO cases filed against the government, Georgia claims immunity for a related pattern of crimes — just like a mafia family — including theft of taxpayer funds, intentional falsification of financial reports, fraud on the federal government, mail fraud, wire fraud, identity fraud, computer fraud, false use of Social Security identification, obstruction of justice, obstruction of federal proceedings, evidence tampering, witness tampering, perjury, subornation of perjury, bribery, and extortion.
Attorney General Olens admitted he never investigated any of the crimes committed against Benedek or Tricoli, or against the citizens of this state. Instead, Olens, and his successor Chris Carr, have defended the admitted criminals against the civil RICO actions — on grounds of sovereign immunity.
Throughout the 10 years of litigation, every state governor and attorney general, the USG and Board of Regents, and, most importantly, every court has ignored what the Georgia Constitution says about how sovereign immunity is waived.
These state officials (including judicial) have ignored the constitutional requirement to examine the language of statutes enacted by the legislature to see if they waive sovereign immunity, and they specifically ignored the language of the RICO statute itself.
They have ignored the binding Georgia Supreme Court precedent in Caldwell that plainly says the RICO statute expressly authorizes a civil RICO action against the state, satisfying the constitutional requirement for waiving sovereign immunity.
Therefore, they have ignored the legislature’s express consent, authorizing a civil action against the state for RICO felonies.
Moreover, by ignoring the law at every level, they have ignored, violated, and denied constitutional due process — a principle of fairness that really does lie at the bedrock of our republic, peddling a counterfeit coin of the realm with their own image on it instead.
Most importantly, where the average citizen of Georgia sits, the promoters of sovereign immunity protection have ignored the corruption and crimes committed by Georgia officials. After all this judicial activism to expand sovereign immunity for a new class of royals, the only thing an average Georgia citizen can do is pray that he or she is not the next victim. —CL—