STEPHEN F. HUMPHREYS, PC
ATTORNEY AT LAW
P.O. Box 192
Athens, Georgia 30603
athenslaw@gmail.com
(706) 207 6982
August 5, 2016
The Honorable Sam C. Olens
Attorney General of the State of Georgia
40 Capitol Square, SW
Atlanta, Georgia 30334-1300
via FedEx and electronic mail
Dear Attorney General Olens:
As you know, this firm represents Plaintiffs Dezso and Ann Benedek in
Benedek v. Adams, 16-CV-1803 in the US District Court for the Northern
District of Georgia, in which you are a named defendant, and also the
attorney of record representing yourself and your alleged co-conspirator codefendants.
We are writing to you pursuant to Rule 11 of the Federal Rules of Civil
Procedure (FRCP), which require notice in writing prior to filing a motion
for sanctions for the following:
1) In your pleadings, in particular the Motion to Dismiss filed in the
action, you have made false statements submitted for and advocating
improper purposes. FRCP 11(b)(1).
2) You have asserted claims and defenses not warranted by existing
law. In fact, they fail to satisfy the elements of and contradict controlling
statutory and Supreme Court authorities. FRCP 11(b)(2).

3) You make factual contentions that do not have evidentiary support.
In fact, numerous contentions are known to members of your staff, by their
personal knowledge as witnesses and participants, to be false. Moreover,
your denials of our allegations of fact are unsupported and, in fact,
contradicted by evidence in your possession. Your repeated claims that our
allegations are frivolous and have no evidentiary support are contradicted
both by our prior submissions to the Board of Regents of the University
System of Georgia and to Governor Nathan Deal, for both of whom you act
as counsel, and to Judge Jerry Baxter in Benedek v. Olens, 2014-CV-246185
(Benedek II), where you represented yourself and your University of
Georgia co-defendants. FRCP 11(b)(3).
Abuse of legal process allegations
In the federal action at issue, you have made the knowingly false and
slanderous accusation that we have “abused the legal process” by re-filing
claims that have been previously subject to a final dismissal on the merits in
state court. Motion to Dismiss, pp. 1-2. This is a fabrication in whole cloth,
as you are well aware that the two previous dismissal orders—entered by
your close friend and Republican party ally, Judge Susan Edlein--that the
motion to dismiss cites in connection with Benedek v. Board of Regents,
13EV016714D (Benedek I)--have both been reversed and/or vacated and
therefore have no legal force or effect whatsoever.
Those claims from Benedek I, that you falsely claim to be improperly refiled in the instant federal action, are in fact properly before the Federal
Court subject to the prior voluntary dismissal of Benedek I—after Judge
Edlein’s refusal to recuse herself on patently and demonstrably false
grounds—and subsequent re-filing pursuant to OCGA 9-11-41. Thus the
claims, in the pleadings signed by you, that we have abused any legal
process in this regard are contradicted by both the public record in this case
and the controlling statute.
In addition, as you are also aware as legal counsel in the case, the assertion
that the federal action is precluded by Judge Baxter’s ruling in Benedek II is
also plainly contradicted by the record in those proceedings, in which Judge
Baxter plainly stated on the record that he did not wish to entertain the
claims in Benedek II because they were properly part of Bendek I and
should be pursued in that case upon the Georgia Court of Appeals reversal of
Edlein’s order—which, according to Judge Baxter, was clearly erroneous.
 

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See Baxter hearing transcript, April 9, 2015. Those claims improperly barred
by Judge Edlein were subsequently properly pursued in Benedek I when, in
fact, the Court of Appeals did reverse and vacate her dismissal order,
making the pursuit of those claims in Benedek II superfluous.
Similarly, Judge Edlein made a second attempt, immediately after reversal
and remand by the Georgia Court of Appeals, to dismiss the action in
Benedek I without allowing the briefing of previous amendments—though
they were deemed by the Court of Appeals to be the effective complaint, and
were improperly “denied,” contrary to the plain language of OCGA 9-11-15,
by Judge Edlein. Judge Edlein’s hurried second attempted dismissal also
purported to bar the filing of new amendments of which she had actual
notice. When she then refused to recuse herself on patently false grounds
also contradicted by the public record, Benedek filed a mandamus action in
Fulton Superior Court to force her compliance with the relevant statutory
authority and the Court of Appeals order. Benedek v. Edlein, Fulton Superior
Court 2015CV264754. That mandamus action transformed into the current
substantive claims against Edlein when she filed frivolous claims against
Benedek that were explicitly barred by statute, OCGA 9-15-15, and also
falsely denied taking the described actions, though they are memorialized in
the public record, in her response filed with the Fulton Superior Court. After
Cobb County Senior Judge Grant Brantley, sitting by designation, also
attempted to dismiss that entire action against Judge Edlein before the
pleadings had even been briefed by the parties, Benedek also voluntarily
dismissed that action pending in the Superior Courts of Georgia and re-filed
those claims, incorporating them into the instant federal action with Benedek
I. The claims from Benedek v. Edlein, like those of Benedek I, were filed in
full compliance with OCGA 9-11-41.
Thus there are no claims that are not properly before the Federal Court in the
instant action, in compliance with all statutory procedural authorities, and
the assertions to the contrary bearing your signature--going so far as to seek
to have Benedek’s counsel barred from the State and Federal Courts of
Georgia for abuse of legal process--are patently false, meritless, and possibly
actionable in themselves.
Basic Issue and Claim Preclusion Element Lacking
Despite the lengthy recitation of the elements and authorities regarding the
complex issues of claim and issue preclusion in the motion to dismiss, it
 

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missed the most basic element--at the Dick, Jane and Sally level. That is
because the claim and issue preclusion arguments depend on the existence of
a final state court adjudication—and none exists. The motion to dismiss’
claim and issue preclusion arguments both rely on the two attempted
dismissal orders by Edlein which, aside from being inherently suspect, have
both been vacated and have no legal force, effect, or precedential value
whatever. They are certainly not grounds for charging improper conduct by
Benedeks’ counsel.
Your assertion that the federal action is also barred by the Rooker Feldman
doctrine protecting state court judgments from federal collateral attack is
also patently frivolous for the same reason—the total absence of any final
state court adjudication. References to orders that have been vacated and
lack any legal effect are not final judgments on the merits and plainly do not
implicate the doctrine protecting state court judgments from federal
collateral attack.
Moreover, contrary to the blatantly erroneous statement in the motion to
dismiss, the instant action as not a collateral attack, via a separate action, at
all. The instant federal court action is, instead, a continuation of Benedek I,
pursuant to the nullification of Edlein’s dismissal orders and the Benedeks’
voluntary dismissal and re-filing of the same action in federal court. OCGA
9-11-41.
No Eleventh Amendment Immunity
The motion to dismiss also relies on the arcane law of Eleventh Amendment
immunity of states from actions brought in the federal courts, but again
overlooks the most fundamental flaw. Since the Attorney General and the
state entity defendant, the Board of Regents of the University System of
Georgia, removed Benedek I to federal court, they waived the state’s
Eleventh Amendment immunity from suit in federal court.
The State Defendants’ availment of federal court jurisdiction, in the admitted
removal to federal court of Benedek I (see Motion to Dismiss, p. 9), in
addition to the attorney General’s pending request for injunctive relief from
the Federal Court—to actually bar the Benedeks’ access to the court system
altogether (Motion, pp. 1-2)—abrogates any defense of Eleventh
Amendment immunity.

 

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Defendants no doubt had notice of the controlling authority contradicting
their asserted defense, that the Attorney General neglected to bring to the
attention of Judge Ross in the instant case, since Defendant Board of
Regents was a party to the controlling precedent—which concerned the
failed attempt to evade federal court jurisdiction in similar circumstances
that was denied by the US Supreme Court. Lapides v Board of Regents of
University System of Georgia, 535 US 613 (2002).
False Statements of Fact Contradicted by the Public Record
The Motion to Dismiss, for example, makes the patently false statements
that Defendant Edlein considered arguments of all parties and gave time for
Benedek to amend before filing the second dismissal order, after having her
first dismissal order reversed and vacated by the Court of Appeals. The
Attorney General has constructive notice of the absolute falseness of both
assertions because your staff attorney, C. McLaurin Sitton, was a party to the
July 21, 2015 phone conference in which counsel gave notice to Judge
Edlein that the March 24, 2014 amendments Judge Edlein purported to
“deny,” contrary to the plain language of OCGA 9-11-15 before being
reversed by the Georgia Court of Appeals, had never been briefed by the
parties and that, upon remand from the Court of Appeals, Benedek was
filing a further amendment as of right under OCGA 9-11-15.
When Judge Edlein inquired, during the July 21 phone conversation, how
long that would take, counsel responded he could not file the amendment
before July 27, 2015 (because of the interruption and time taken to address
her ex parte order quashing the duly noticed deposition of Michael Adams.
Therefore, when Judge Edlein entered an order once again dismissing the
Benedek I action in its entirely, she was well aware that the 2014
amendments had never even been briefed--as required by law, and which is
also a matter of public record—and that counsel did not have time to file the
subsequent amendment, which was pre-empted by the dismissal order.
Opposing counsel and Judge Edlein discussed filing the amendment on or
about July 27 during the July 21, 2015 phone conversation. With knowledge
that Plaintiff could not filed the noticed amendments before July 27, Edlein
attempted to enter her second pre-emptive dismissal order on July 23—
obviously cutting off the possibility of amending on July 27. Judge Edlein
vacated this second attempted dismissal order—which just so happened to
 

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cut off amendments bringing additional claims against the Attorney
General—only in the face of a motion to recuse, the initiation of a federal
investigation, a mandamus petition, and a motion to vacate that documented
Judge Edlein’s improper actions.
Thus the assertion that Edlein considered the arguments of the parties--when
in fact the March 2014 amendment had not been briefed and the second
amendments noticed for July 27, 2015 had not even been filed--and allowed
time for further amendment, is knowingly false and contradicted by both the
public record and the personal knowledge of your own staff.
Rule 11 Requirements
Some of the most egregious, but not all violations of Rule 11 are described
above. In addition, the same actions violate numerous provisions of the
Georgia Rules of Professional Conduct. Therefore, we suggest you conduct
your own review—as a signatory of these false pleadings, and the person
ultimately responsible as Attorney General—to determine where
misrepresentations of law and fact have been made.
All of the patently false and frivolous claims and defenses bearing your
signature must be retracted pursuant to Rule 11. Though Rule 11 provides 21
days from receipt of this notice in which to do this, our responses to your
frivolous motions to dismiss and stay discovery are due on August 11,
pursuant to the Order of the Court. Thus, as a practical matter, you need to
act before these responses are due in order to avoid further harassment,
vexation, and delay of the proceedings before the Court.
Accountability of the Attorney General
Though there have been numerous attorneys on the pleadings in the more
than three-year course of litigation, since Benedek I was filed in February of
2013, we are writing directly to you, as Attorney General, because
throughout that time you have chosen and allowed, if not directed, the toxic
and unethical combination of asserting frivolous defenses and engaging in
personal attacks on opposing counsel based on these same false and
frivolous assertions. You should note that in the federal action we are also
alleging that these acts of knowing misrepresentation and obstruction are
RICO predicate acts and a continuation of the scheme to harm Professor
Benedek.
 

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There are additional reasons, besides your being the chief legal officer of the
State of Georgia, why we are writing directly to you to hold you personally
accountable.
When you were elected Attorney General, we wrote to you before you even
took office to alert you to the situation in dire need of correction involving
fraud and evidence tampering that occurred under the previous attorney
General, in Michael Adams’ vindictive and miserably failed attempt to
revoke Professor Benedek’s tenure on knowingly false grounds with
perjured testimony and manufactured evidence, as documented to the Board
of Regents and, later, to the courts in Benedek II. You never responded to
that correspondence.
Nonetheless, when we first filed the action we did not name the Attorney
General as a defendant in hopes of cooperation from your office in
investigating and remedying the serious crimes that occurred under the
previous Attorney General. Instead, you and your office engaged in the sort
of scorched-earth retaliation, misrepresentation and obstruction clearly
outlined in this Rue 11 notice, and have done so in all the related litigation
against the Board of Regents, such as Tricoli v Watts (DeKalb Superior
Court 14-CV-4911, Georgia Supreme Court Case No. S15A1466, Court of
Appeals NO. A15A2256, Petition No. S16C1469) and Caldon v Board of
Regents, Fulton Superior Court 2009-CV-165267.
As a personal aside, I certainly take exception—as the First Honor Graduate
of the University of Georgia School of Law, Special Assistant to the
President of the American Bar Association, Executive Assistant to a US
Senator from Georgia, judicial law clerk to the Honorable Sam C. Pointer,
etc., now performing the public service, addressing corruption in state
government, that should be your responsibility—to being repeatedly
debunked by you and your staff as “an outlandish conspiracy theorist”
engaging in “attention-seeking gimmicks” with respect to “frivolous and
nonsensical“ allegations for which there is “no credible evidence,” according
to your statements, widely disseminated both publicly and privately, based
on the same sorts of knowing misrepresentations documented in this Rule 11
notice.
In arguments before the all of the tribunals mentioned above, moreover, it
has been open season for your assistants to engage in character assassination
 

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and personal attacks, that bring disrepute to your office and violate the rules
of legal ethics--apparently with a green light from above, given the
consistency of such statements, which have also been disseminated by your
public spokesperson and repeated by the public information officers of the
state institutions involved.
This, of course, includes the most recent assertion bearing your signature
that I should be barred from practice in both the state and federal courts of
Georgia for my alleged “abuse of the legal process”—which consists of
pursuing claims against you and the state entities you represent.
The buck must stop with the Attorney General. In all the change of
attorneys, your signature is the only one common to all the pleadings. You
have personally engaged in the slander and misrepresentation described in
order to obstruct the independent investigation we requested of Governor
Deal. You had the improper undisclosed relationship with the State Court
Judge, now a Defendant, who engaged in improper actions in your defense.
You have made these misrepresentations on behalf of your own self interest
as a defendant, as well as your alleged co-conspirator co-defendants, which
is an ethical violation.
In addition, such abuses appear not to be isolated, but commonplace, in the
Attorney General’s office. Your office was fined in the Kalberman case for
withholding highly relevant documents related to retaliation by the
Governor’s office against the former head of the State Ethics Commission
for investigating complaints of campaign finance violations by Governor
Deal.
In the Kalberman whistleblower case, Fulton Superior Court Ural Glanville
expressed regret at having to impose the sanctions for undermining public
confidence in the judicial system—only because it was the taxpayers of
Georgia who had to pay the fine, not you or the attorneys in your office who
were involved in concealing the material evidence.
That is why, for all the reasons stated, if the sorry situation described in part
above is not resolved prior to the deadline and we are forced to file a motion
for Rule 11 sanctions, we intend to ask the Court to impose any financial
sanctions on you, personally, as the elected official accountable to the public
and ultimately responsible for the conduct of the Attorney General’s office.

 

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The taxpaying public does not expect that it is the job of the Attorney
General of Georgia to routinely misrepresent law and facts to Georgia
tribunals, state or federal, with impunity, to defend criminal actions which
the Attorney General should be prosecuting instead, to obstruct independent
investigations of malfeasance in your office, or to falsely malign opposing
counsel for lack of legitimate legal arguments.
Thank you for your immediate attention to this important matter. Please let
me know if you have any questions or if I may be of any additional
assistance.

/s/ Stephen F. Humphreys
___________________________
STEPHEN F. HUMPHREYS

cc:
Deborah Nolan Gore, Esq., dgore@law.ga.gov
Devon Orland, Esq. dorland@law.ga.gov
Kathleen M. Pacious, Esq., kpacious@law.ga.gov
 
 
 
 
 
 
 
 
 

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CERTIFICATE OF SERVICE
Undersigned counsel hereby certifies the service, but not the filing, of this
Rule 11 Notice by common carrier, this 5th day of August, 2016, serving
opposing counsel as follows:
Samuel S. Olens
Kathleen M. Pacious
Devon Orland
Deborah Nolan Gore
Office of the Attorney General
40 Capitol Square, SW
Atlanta, Georgia 30334-1300

STEPHEN F. HUMPHREYS, P.C.
/s/ Stephen F. Humphreys
___________________________
STEPHEN F. HUMPHREYS
Georgia Bar No. 378099

P.O. Box 192
Athens, GA 30603
1671 Meriweather Drive
Bogart, GA 30622
(706) 543-7777 p
(706) 543-1844 f
(706) 207-6982 m
 

 

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