Summary Judgment Sought in Secret Vote Case


(APN) ATLANTA — After nearly three years of litigation, including all the way up to the Supreme Court of Georgia, all the way back down, and through six months of discovery, a dispositive motion has been filed in the secret vote case.  A copy of the Motion is available online HERE.

In May 2010, APN’s News Editor–the present writer–filed the original complaint pursuant to the Georgia Open Meetings Act, concerning an unrecorded vote taken by the Atlanta City Council at the February 2010 City Council Retreat.

In August 2010, Fulton County Superior Court Judge Christopher Brasher dismissed the case because he ruled that OCGA 50-14-1(e)(2) did not require the listing of the names of agency members voting against a proposal or abstaining in the minutes for non-roll call votes.

The Supreme Court of Georgia overturned the opinion of the lower court, and the Court of Appeals of Georgia, in February 2012, in Cardinale v. City of Atlanta (S11G1047), ruling that the Act does, in fact, require the listing of such names in the minutes of agency meetings.

Contrary to popular belief, however, that was not the end of the lawsuit; it simply meant that the case was reinstated in Fulton County Superior Court in front of Judge Brasher.

As previously reported by APN, the case returned to Judge Brasher in April 2012.


In the Motion for Summary Judgment, APN’s News Editor seeks for declaratory and injunctive relief.

As for declaratory relief, the Motion seeks for the Court to declare that the City of Atlanta violated the law by, first, failing to record the occurrence of a vote in general in the minutes of the February 2010 Retreat; and second, failing to record the names of the eight Council Members voting against the proposal.

As for injunctive relief, the Motion seeks for the Court to enjoin the City from failing to record the occurrence of votes in minutes in the future.

The Motion further seeks for the Court to order the City to amend the minutes of the February 2010 Retreat to clarify that a vote, and not a poll, occurred.

Finally, the Motion seeks for the Court to order the City to reimburse APN’s News Editor for reasonable legal expenses incurred as a result of the litigation.  Receipts were attached to the Motion in support of the reimbursement request, which was in the amount of 647 dollars and 08 cents.


On May 30, 2012, the parties held a status conference, which established a six month period for discovery.

During discovery, APN’s News Editor filed three rounds of Requests for Admissions with Defendant City of Atlanta.

The City admitted all items in the First Request for Admissions and the Third Request for Admissions, and admitted many, but not all, of the items in the Second Request.

With respect to the Second Request, the City objected to requests for the City to admit that Councilwoman Felicia Moore (District 9) and Municipal Clerk Rhonda Dauphin Johnson told APN in phone interviews that the reason the vote was not originally recorded is because they and the Council Members believed the vote to be a straw poll instead of a vote.

These objections by the City of Atlanta led to a discovery dispute.

The City also failed to admit that they violated the Act.  They admitted that the Supreme Court of Georgia ruled in favor of the Plaintiff, but simply would not respond in a direct way to the specific admission being sought.

For example, item 31 in the Second Request asked, “Please admit that the original Report, which did not reflect how any of the members present voted on the proposal regarding public comment, did not comply with OCGA 50-14-1(e)(2), which, even prior to its amendment by the Legislature in 2012, required a listing of the names of those voting against a proposal or abstaining, if any, in the case of a non-roll call vote, particularly in light of the ruling of the Supreme Court of Georgia in Cardinale v. City of Atlanta, S11G1047.”

The City of Atlanta responded, “Defendants admit, that in this matter, and in an issue of first impression, the Supreme Court of Georgia ruled in favor of Plaintiff (Cardinale v. City of Atlanta, S11G1047) to determine that O.C.G.A. 50-14-1(e)(2), even prior to its amendment by the Georgia Legislature on April 17, 2012, required the minutes of a public meeting to include the names of those present voting for and against a measure as well as the names of those abstaining, even in the case of a non-roll call vote.  To the extent that Plaintiff alleges any knowing violation of the requirements of O.C.G.A. 50-14-1(e)(2) by Defendants, such allegation is denied.”

In an email to Senior Assistant City Attorneys Kristen Denius and Amber Robinson, APN’s News Editor attempted to get the City to directly respond to the request that was made.

“Items 31 and 32 ask for the City of Atlanta to make an admission of ‘an application of law to fact’ as is required by OCGA 9-11-36(a)(1),” the email stated.

“The City’s responses to Items 31 and 32 were to basically admit again that the Supreme Court of Georgia ruled in my favor.  That is not what I was asking for in those Items; I’m asking for the City to admit to violating the Georgia Open Meetings Act,” the email stated.

“I have noted that the City writes, ‘To the extent Plaintiff alleges any knowing violation of the requirements of OCGA 50-14-1(e)(2) by Defendants, such allegation is denied.’”

“Well, neither Items 31 nor 32 ask the City to admit that a knowing violation occurred, so therefore that information is extraneous and still does not respond to the specific request for admission that I posed.  Therefore, I request that the City admit or deny, in whole or in part, items 31 and 32,” the email stated.

However, Defendant, the City of Atlanta, continued to refused to admit or deny, in an email sent on August 09, 2012.

“We have taken the time to read through your email and analyze your arguments.  While we appreciate the thoughtfulness and thoroughness of your arguments, the City respectfully stands by the responses and objections presented in our initial response to your Second Request for Admissions,” the City stated.

The Court held a hearing on September 11, 2012, concerning specific items in the discovery dispute, pertaining to where APN’s News Editor sought for the City to admit to Councilwoman Moore and Clerk Johnson’s phone interviews with APN.

However, Judge Brasher ruled in an order on September 12 that the City did not have to respond to those items.

The City did admit as part of its response to the Second Request for Admissions that Councilman Alex Wan (District 6) made remarks on or around May 28, 2010, to the Georgia Voice magazine denying that the secret vote was even a vote in the first place.

The City has admitted that Wan told the Georgia Voice, “It was just a lark.  No action was taken.  Everything stayed the same… He says we were voting on a proposal and there should have been a roll call when in reality we were not voting.”

The City also admitted to Councilman Ivory Young (District 3) making the following remarks at the May 11, 2010 meeting of the Community Development/Human Resources Cmte:

“I’m gonna request from the Law Department a formal opinion, because when somebody says, describing an action that I take or any of us take as Council Members, and call it a vote, there’s a legal definition for a vote.  And, you know, Council Members routinely poll their colleagues to get their opinions on any number of issues,” Young said.

“No vote was taken.  And so, I encourage anybody that wants to challenge that to do so, if they want to spend their funds to do it.  But I didn’t take a vote, I was polled, somebody asked me a question, but you will never see as a formal record of any sort a vote that has been taken on the opinion on public comment,” Young said.

During a status conference on September 26, 2012, the Court ruled that dispositive motions would be due in 45 days.

The Motion filed by APN’s News Editor was filed on November 09, 2012.

The City of Atlanta requested an additional two weeks for their Motion for Summary Judgment, and the request was granted.  The City has yet to file their motion to date.

The City now has approximately three weeks left to respond to the Plaintiff’s Motion, and one week left to file their Motion.

Once the City files their Motion, APN’s News Editor will have thirty days to respond to it.

After that point, the Court will be able to rule, possibly bringing a close to a three year court battle.


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