Olens, First Amendment Group File Briefs in Atlanta Secret Vote Case

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(APN) ATLANTA — Attorney General Sam Olens and the Georgia First Amendment Foundation have filed amicus briefs in the case, S11G1047, currently before the Supreme Court of Georgia, and brought by the News Editor of Atlanta Progressive News–the present writer–against the City of Atlanta, regarding the City Council’s secret vote of February 2010.

Oral arguments will be held in the case on Tuesday, October 04, 2011, at the Georgia Supreme Court, 40 Capitol Square, across from the Georgia State Capitol.  Oral arguments start at 2pm.  Three cases are being heard during the 2pm arguments, and Cardinale v. City of Atlanta will be the third one.  Each case will take about forty minutes each, with twenty minutes for arguments on each side.

Members of the public are welcome to attend.

As previously reported by APN, at issue in this case is whether the section OCGA 50-14-1(e)(2) of the Georgia Open Meetings Act requires for entities such as the City Council of Atlanta to list the names of the persons voting against a proposal or abstaining when the vote is a non-unanimous, non-roll call vote.

The Council voted at a Council Retreat in February 2010 at the Georgia Aquarium in a 7-8 split vote, not to set new public comment limits which would impact City Council Committees.  But they did not list in the minutes who voted which way.

The present writer filed a lawsuit in May 2010 in Fulton County Superior Court, seeking a declaration that the City violated the law, for the minutes to be amended, for future violations to be enjoined by the Court, and for six Council Members who refused to disclose their vote individually to receive misdemeanor fines.

Fulton Superior Court Judge Christopher Brasher dismissed the case upon a Motion to Dismiss by the City, and ruled that OCGA 50-14-1(e)(2) did not require the minutes to list the names of those voting against or abstaining in the case of a non-roll call vote.

For non-roll call votes, the statute states that the vote shall be assumed unanimous unless the minutes reflect the names of those voting against or abstaining.

But Brasher ruled this only meant that citizens are required to assume the vote is unanimous if the minutes list nothing at all–even when the record showed the vote was split.  The Georgia Court of Appeals upheld Brasher’s ruling.

The Supreme Court of Georgia granted a Petition for Certiorari by the present writer in July 2011; Appellant’s and Appellees’ Briefs have been filed.

The Supreme Court asked Olens to opine on the matter in a letter earlier this month.

In Olens’s brief, he states that he provides the “state’s position in this appeal.”  The lead author on the brief is Stefan Ritter, Senior Assistant Attorney General; and Dennis Dunn, Deputy Attorney General, also participataed.

Olens argues that even though the literal language of the statute does not require the names to be listed, but only requires a presumption of unanimity when they are not listed, Olens argues to the Court that this is one of those rare instances where a statute must be construed in light of the intent of the legislature, which, in this case, he says, is open government.

“STATUTES THAT ARE OTHERWISE CLEAR ON THEIR FACE SOMETIMES HAVE TO BE CONSTRUED, CONSISTENT WITH THE INTENT OF THE GENERAL ASSEMBLY, SO AS TO AVOID ABSURD RESULTS,” Olens wrote in subheading III-B.

“There should be no question that OCGA 50-14-1(e)(2) could lead to absurd (or at least unintended) results if its word are taken too literally,” Olens wrote, noting that under a literal reading of the Act, the minutes could state the vote is 7 to 8, but not list names, requiring citizens to assume the vote is unanimous even when the same minutes say the vote is split.  This absurdity is not far from the present reality the City of Atlanta has created with its public statements which contradict the presumption of unanimity.

Olens cites case law, Atlanta Journal v. Hill (1987), which states, “The Open Meetings Act was enacted in the public interest to protect the public — both individuals and the public generally — from ‘closed door’ politics and the potential abuse of individuals and the misuse of power such policies entail.  Therefore, the Act must be broadly construed to effect its remedial and protective purposes.”  The Act was revised in 1988, but the Courts have issued copious rulings since then citing the 1987 case.

Finally, Olens notes that he has witnessed a recent significant retrenchment by the Georgia Court of Appeals in upholding the intent of the law, citing two recent cases.  The implication here seems to be that there is a broader need for the Supreme Court to step in to reassure the public that the intent of the Act is still recognized to be openness.

The Foundation’s amicus was written by Gerry Weber of the Law Offices of Gerald Weber, LLC, and Hollie Manheimer of Stuckey and Manheimer, Inc.

“The Georgia First Amendment Foundation is a Georgia non-profit corporation organized in 1994 to inform and educate the public on government access and First Amendment issues and to provide legal support in cases in which the public’s access to public institutions is threatened,” GFAF writes in its brief.

“Because the appellate courts have consistently interpreted our State’s open meetings act in favor of openness, this Court should apply the most reasonable interpretation of the act as mandating a record of votes in circumstances such as these,” GFAF wrote.

“This case is a source of tremendous public interest,” GFAF wrote.

“Georgia’s open meetings and records acts encourage public access to public information so that the public can evaluate the expenditure of public funds and the efficient and proper functioning of public institutions.  Also, the acts seek to foster confidence in government through openness to the public,” GFAF wrote.

“This case provides an opportunity for this Court to interpret the act as broadly as intended, and to strengthen the open meetings act for the public, with no harm to the operation of a public agency,” the GFAF wrote.

(END / 2011)

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