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How I Defeated Terminus

by Guest Blogger

This Sunshine Week is bringing in a series of remarkable citizens around the nation -- showing us that everyone can demand for open government from our leaders. Here today to share his one-man experience in opening up the City of Atlanta, is our guest blogger Matthew Cardinale. Matthew is the News Editor and Founder of the Atlanta Progressive News and a North American Correspondent for the Inter-Press Service.

Atlanta has had three names in its history: Marthasville, Terminus, and Atlanta.  My friend Jill and I joked that Terminus sounded like a more appropriate name to describe the City of Atlanta and their Law Department, with their endless financial resources, that is, courtesy of the taxpayers.  I guess it was because it sounded more cold and bureaucratic, more ruthless, evocative of the Terminator, evocative of Goliath.

I never intended to take on Terminus.  Actually, at the time I was trying to build relationships with newly elected Council Members and to strengthen relationships with incumbent Members.  So much for that!

I was concerned about efforts by Councilwoman Joyce Sheperd (District 12), newly appointed Chairperson of the Community Development/Human Resources (CD/HR) Committee, to limit public comment.  She had instituted an unprecedented five minute time limit at CD/HR and was one of several Council Members pushing for the Council to adopt a uniform rule to limit public comment in all seven Committees.  Currently, each Committee Chair has discretion to adopt their own rules, subject to being overruled by the Committee.

I think many of us concerned citizens were blindsided when at the Council Retreat at the Georgia Aquarium, while at lunch, Committee on Council Chairwoman Felicia Moore (District 9) took a so-called straw poll of members as to whether they wanted the Committee to draft a uniform rule. Seven Council Members voted yea; eight voted nay.

All I wanted to know was how everyone voted!

So I called Felicia Moore and asked her.  She said they didn’t record how the individual Council Members voted because they didn’t consider it an actual vote.  She said it was a straw poll because it wasn’t a vote on legislation; it was a vote on whether to draft legislation.

I requested a copy of the minutes of the Retreat from the Municipal Clerk, Rhonda Dauphin Johnson, and upon receiving them, noted the minutes merely said that Moore had led a discussion and that it was determined the Council was in favor of keeping the current rules.

So, then I looked up the law.  I found OCGA 50-14-1(e)(2), a section of the Georgia Open Meetings Act, said that the minutes shall record all motions and “other proposals.”  I then told Moore and the Committee that the secret vote was a vote on an “other proposal.”Moore repeatedly insisted it wasn’t a secret vote, because as she said, “You can’t take a secret vote at an open meeting.”  I replied if it wasn’t a secret, to tell us how everyone voted!

At that point, Moore sought the opinion of the Law Department.  Senior Assistant City Attorney Kristen Denius provided an opinion that stated that because it was not a roll call vote, that the vote details did not have to be recorded. I then pointed to another provision in the statute regarding non-roll call votes.

OCGA 50-14-1(e)(2): “In the case of a roll-call vote the name of each person voting for or against a proposal shall be recorded and in all other cases it shall be presumed that the action taken was approved by each person in attendance unless the minutes reflect the name of the persons voting against the proposal or abstaining.”

I said, don’t you see that for non-roll call votes it said you must list the names of the persons voting against the proposal or abstaining?  I then said I was considering filing a lawsuit.  At that point, Moore said to go ahead and whatever I felt was necessary, but that she would not be asking the Clerk to ask Council Members how they voted.

So, at that point I had already threatened to file a lawsuit. Unfortunately, I was not successful in finding an attorney willing to take on my case on contingency.  So, I had to sue without one.  Of course, if you threaten to sue and don’t do it, then your threat has no value in the future.  So I had to sue pro se.

Before doing so, I warned Council Members that I would also be seeking criminal misdemeanor fines against them in their personal capacities.  I asked all fifteen Council Members for their individual votes, promising not to seek fines against them if they told me how they individually voted.  After a continuous campaign, nine disclosed their votes, while six refused. So, I ended up suing the City of Atlanta, the secret six, Moore, Council President Ceasar Mitchell, and Clerk Johnson.

As a journalist, I already had some experience reading legal documents and felt comfortable with the basic outlines of the legal process.

Matthew Cardinale outside Atlanta City Hall: Photo credit by Joeff Davis

My friend Dwanda used Google to find two lawsuits filed under the Freedom of Information Act (FOIA).  I used one of them as a template for my initial Complaint.  I simply changed the facts that occurred, the parties, the venue, the causes of action, the relief sought, and of course the laws referenced, from FOIA to the Georgia Open Meetings Act (OMA).I filed my pro se lawsuit in May 2010 in Fulton County Superior Court and the case was assigned to Judge Christopher Brasher.

The City filed a Motion to Dismiss for failure to state a claim upon which relief could be granted. They said that because the OMA did not require the listing of the names except in cases of a roll-call vote, that even if my allegations were all true, that they did not break the law. I filed discovery, including several Interrogatories upon several Council Members and the Municipal Clerk.  I filed a reply to their Motion to Dismiss.

Then, I was shocked when, in August 2010, Judge Brasher granted their Motion to Dismiss.

Brasher ruled the statute did not state that the minutes had to list the names of those voting against the proposal or abstaining, merely that we had to assume the vote was unanimous if those names were not listed.  So go ahead, he basically said, assume the vote was unanimous!

However, the vote, we already knew, was split, seven to eight, so the ruling was forcing us to assume something that wasn’t true.So in October 2010, I appealed to the Court of Appeals of Georgia.  An attorney who was giving me advice up until that point warned me not to appeal, said I would set bad case law, said that my chances of prevailing were slim, and asked whether I wanted to spend two to three years on this.

I argued, and cited case law, that a court should look beyond the literal language of a statute when a literal construction would lead to absurdity.  I argued that the Act should be interpreted broadly, in favor of openness, consistent with the intent of the Act. I found two scholarly journal articles in two different law school journals that wrote about the intent of the Act at the time of its passage in 1988, and cited these as well. Unfortunately, the Court of Appeals ruled against me in February 2011.  This time, even the Georgia First Amendment Foundation advised me against wasting my time on appealing.

But I filed a Petition for Certiorari to the Supreme Court of Georgia in March 2011, which they granted--a rare accomplishment in itself-- in July 2011.  I made oral arguments before the Supreme Court in October 2011, which are available online here

I filed a Supplemental Brief in November 2011. Then, in February 2012, the Supreme Court ruled in my favor, that the names of those voting against or abstaining do have to be listed in the case of a non-roll call vote

This was such a great day.  I held a press conference on the steps of City Hall, and got to go down to the Council Meeting, which was being held that day, to tell them about themselves. There are so many aspects to this victory.  Not only are secret votes now banned across the entire State of Georgia, but my case sets strong case law that the Act must be construed broadly in favor of openness.

The ruling also lets ordinary citizens know that there is an Open Meetings Act, and an Open Records Act, that gives them the mechanisms to hold elected officials accountable, and that if they just engage the process provided by the Act, sometimes they can win, even without an attorney.

I had another victory last week when on March 05, 2012, the Council adopted a resolution to amend the minutes of the February 2010 Council Retreat to list the names of those voting yea and those voting nay. That was awesome; a bit anticlimactic for the impact of the action in comparison to the two year struggle it took to make them take the action, but it was pretty cool that I basically forced them to do something they really, really did not want to do.

As it stands now, the case is in remittur back to the trial court, via theCourt of Appeals.  The Court of Appeals currently has it and says it may not have time to deal with it for another few weeks or months. When it arrives back at the trial court, I hope for a speedy resolution.  I have asked the City to contact me regarding a possible Consent Decree, but have not heard from them as of yet. I also have a second lawsuit against the City for a variety of Open Meetings and Open Records violations that is currently pending in Fulton County Superior Court.

I’m currently in the process of applying to Law Schools and am waiting to hear back about possibly beginning Law School this Fall Semester 2012. I hope to eventually be able to help citizens across the State of Georgia who require an attorney represent them in Court.

I also have a more long-term project that I am interested in pursuing which is to develop a website to help more ordinary citizens in Georgia to file their own pro se lawsuits.  There are so many lessons I learned that I would like to share with others so that, frankly, they do not have to make some of the same mistakes I did.  And so they won’t have to learn everything from scratch.

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