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Attorney Donald A. Weissman won’t have to stand for the Pledge of Allegiance when he goes to court in Gwinnett, Ga., today, but he’s still concerned that others will feel compelled to declare their loyalty to the U.S. government in order to get a fair hearing from Magistrate Judge Mark A. Lewis. Lewis, hearing civil cases for a Gwinnett Superior Court judge tied up with a criminal trial, begins each day in court by turning to face the U.S. flag and reciting the pledge. Lewis said he started the practice after the Sept. 11, 2001, terrorist attacks. Weissman recently complained about the practice in a letter to Lewis and the court administrator. According to Gwinnett County Court Administrator Philip M. Boudewyns, Lewis said that he would forego the pledge when Weissman is present, but will continue the practice on other days. Thursday, the judge responded officially, entering an order chiding Weissman for passing the complaint letter — which had been marked “confidential to be opened by recipient only” — to the Daily Report. Lewis also defended his actions by citing a 2003 Georgia Supreme Court decision that said a judge’s request that jurors stand for the pledge “shows no bias, either for the State, or for one who is charged by the State with a crime.” In that case, Robles v. State, 277 Ga. 415, Justice P. Harris Hines, writing for the 5-2 majority, said there was nothing wrong with asking jurors to pledge to a flag that stands for “liberty and justice for all.” In his order, Lewis wrote that participation in the pledge by others in the courtroom “is not mandatory, requested, or required.” Because he stands with his back to the audience, wrote the judge, he has no way of knowing who joins in; those who particulate do so “spontaneously,” he said. Claytor v. Kosteski, 05-A-08735-1, (Gwin. Sup. Ct., March 30, 2006). “That doesn’t change anything,” said Weissman, a solo practitioner. The practice “still gives the improper appearance of partiality” by “creating an atmosphere that’s inherently coercive and intimidating.” Weissman’s concerns are rooted in a January appearance before Lewis. Weissman, who was representing a client in a civil contempt proceeding, said he was surprised when Lewis opened court by requesting that everyone remain standing for the Pledge of Allegiance. “I found it professionally inconsistent with what I thought should go on within the courtroom,” said Weissman. “I’ve been practicing law [for] 43 years in Georgia, and I’ve never seen a declaration of loyalty required in any court.” Weissman said nothing that day, but he sent a letter March 17 to Lewis requesting that he halt the practice. “It is offensive to me as a citizen of the United States and it is objectionable to me as an attorney sworn to uphold the laws and constitutions of the United States and Georgia and as an officer of the Court,” wrote Weissman, “that you apparently consider your Judicial forum to be an American Court, rather than a Court for all persons situated in America.” Noting Gwinnett’s large population of immigrants and noncitizens, Weissman decried the pledge recital as pressure upon court attendees “to either declare their personal loyalty to this nation … or suffer the risk that they may be treated differently.” He also wrote that such a practice may place Lewis in violation of Georgia’s Canons of Judicial Conduct, particularly those barring actions that “appear to address matters which distinguish between litigants based on national origin or citizenship.” Clarke County Superior Court Judge Steven C. Jones, chairman of the Judicial Qualifications Commission, said he was unaware of any similar complaints in his nine years on the bench. In his letter and in an interview, Weissman was careful to point out that he had no reason to think Lewis exercised any bias. “But the requirement of a declaration of loyalty seems to divide the courtroom into two parts,” he said. “They have to choose whether they will stand with the judge or not.” In his order, Lewis mentioned that a reporter for the Daily Report had called him several times for comment, and stated that he would not respond because he did not want to have ex parte communications with anyone about the case Weissman is arguing, a routine civil contempt proceeding. Gwinnett County Superior Court Chief Judge K. Dawson Jackson said through an assistant that he would have no comment on the matter. Boudewyns, the Gwinnett court administrator, said he was not aware of other Gwinnett judges who recite the pledge in their courtrooms. Lewis’ order said that, far from being negatively influenced by the Weissman’s letter, he “applauds Mr. Weissman for challenging a practice that he finds questionable and personally offensive.” Weissman expressed puzzlement when questioned about the new order. He said he made the letter public because he had received no response. “There’s nothing that precludes me from disclosing my own letter,” he noted. The ex parte claims, he said, are out of place because “the rules of ex parte communications are very specific. They refer to communications concerning the matter before the court. My letter had no bearing on the case before him. … It related to how he conducts his court.” As to the Robles citation, “I don’t think that applies,” he said. “Robles was a defendant who was not an American” challenging a conviction, he said. “The decision did not address a judge requesting the whole court to pledge to the flag. … It seems to me that when a judge brings his personal view of patriotism into the courtroom, everyone may feel compelled to join in the exercise.” “He wants to commemorate Sept. 11? That’s fine,” said Weissman. “But what’s that got to do with a declaration of loyalty? There was no attack on the courthouse in Gwinnett County. And it certainly does not follow, in my mind, that every person who appears there should be compelled to declare their loyalty.”

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