DALTON, Ga. -- A Dalton city judge has been asked to recuse himself from hearing cases filed in City Court after a claim surfaced that he sentenced more than 1,800 people on a charge called "contempt of probation" that doesn't exist.
The recusal petition was filed Wednesday by Jerry Moncus, a former city judge who was fired last year. Moncus, a defense attorney, has asked for a hearing to prove that Judge Jim Wilbanks improperly has sentenced probationers to serve time beyond their original sentences and to pay additional fees.
Those added fees put more money in the pockets of Alternative Probation Services, the private company that runs probation for Dalton Municipal Court, according to the petition Moncus filed in Whitfield County Superior Court.
Alternative Probation Services owner Rick Eaton said the allegations are false. He said neither he nor Wilbanks ever has benefited from anyone who was brought back to court for violating probation.
"Problem cases don't benefit anyone," Eaton said.
Wilbanks said it is inappropriate for him to comment on pending litigation. Moncus said he can't have his day in court to prove his accusations until Wilbanks steps down and allows another judge to hear the case.
Wilbanks served in City Court from 2000 to 2005, when he used Alternative Probation Services to operate the city program. An in-house probation service was introduced before Moncus became judge in 2005.
Moncus was fired last year, and Wilbanks replaced him. City officials said Moncus was fired because of a possible link to LST Recovery Group, which collected forfeited bail bonds on behalf of the city. Moncus denied a conflict of interest.
On Wilbanks' recommendation, the Dalton City Council contracted again with Alternative Probation Services in February.
The private service charges fees to people on probation. City Finance Director Cindy Jackson said in February that the company expected to bring in $379,000 from probation fees and electronic monitoring this year, according to Chattanooga Times Free Press archives.
Now Moncus and Wilbanks have asked the Judicial Qualifications Commission to investigate each other for alleged unethical behavior on the bench, court records show.
Wilbanks sent a letter to the commission claiming Moncus was "grossly unethical" to allow his business partner Josh Smith to run a collection agency to collect bonds for City Court. Smith was the city public defender at the time.
The JQC can't confirm or deny whether it is investigating any allegations, Director Jeff Davis said.
Moncus first asked for a City Court hearing in March to dismiss a charge of contempt of probation against his client, Sandra Madrigal, and the other 1,800 people Wilbanks sentenced on the charge from 2000 to 2004.
His request was dismissed without a hearing, Moncus said. He later filed petitions on behalf of three more clients who claimed they were charged illegally.
Moncus said the judge is using the contempt of probation charge to extend defendants' probationary terms.
But there's no such offense as contempt of probation in Georgia law or the latest Dalton city code. When someone violates the terms of probation, the court must issue a hearing for revocation of probation. But a new charge isn't issued, according to state law.
But James Sample, a professor at Hofstra Law School in New York, said judges sometimes have more leeway in contempt rulings. Even if a contempt charge isn't in a city code, judges can sometimes pull from common law to rule on those who ignore the court's orders, he said.
However, a judge who adds time to a sentence could be questioned, Sample said. The judge should recuse himself to avoid any appearance of impropriety, he said.
According to Moncus' petition, dozens of probationers in the last 10 years were recommended to serve additional time beyond their 12-month probations.
In one case, a man charged for a DUI had 21 days left on probation, but hadn't paid his fees. The probation office requested an additional 12 months be added to his sentence, the ticket shows.
In June, Atlanta Municipal Court came under fire for sentencing several probationers to serve more than the six-month mandated limit.
Atlanta's Solicitor's Office then overturned a case in which a man had been sentenced to serve 48 months' probation, which likely will prompt further cases to come forward, according to the Atlanta Journal-Constitution.
Joy Lukachick Smith is the city government reporter for the Chattanooga Times Free Press. Since 2009, she's covered crime and court systems in North Georgia and rural Tennessee, landed an exclusive in-prison interview with a former cop convicted of killing his wife, exposed impropriety in an FBI-led, child-sex online sting and exposed corruption in government agencies. Earlier this year, Smith won the Malcolm Law Memorial Award for Investigative Reporting. She also won first place in ...