Mandamus Against Mitchell, Johnson Sought in Secret Vote Case


(APN) ATLANTA — Yesterday, December 27, 2012, the News Editor of Atlanta Progressive News, the present writer, filed further litigation in the secret vote lawsuit seeking for the Fulton County Superior Court to grant a writ of mandamus, ordering two specific City of Atlanta public officers–Council President Ceasar Mitchell and Municipal Clerk Rhonda Dauphin Johnson, both in their official capacities–to fulfill their duties related to the recording of votes of the City Council of Atlanta.

APN’s Editor filed the secret vote lawsuit in May 2010, after the City Council took a secret vote while they were on Retreat in February 2010 having lunch at the Georgia Aquarium, regarding the issue of limiting public comment at future committee meetings.

In February 2012 the Supreme Court of Georgia ruled in favor of APN’s Editor, ruling that the Georgia Open Meetings Act requires that minutes of agency meetings must include the names of those persons, such as Council Members, voting against a proposal or abstaining in the case of non-roll call votes.

In March 2012, upon an open letter printed in APN, the Council voted to amend the minutes of the Retreat to include the names of all fifteen Councilmembers, showing whether they voted for or against the public comment proposal.

In April 2012, the case returned to Fulton County Superior Court Judge Christopher Brasher’s division, leading to a six month discovery process.  

Over the last two months, APN’s Editor and the City of Atlanta have both filed motions for summary judgment and responses thereto.

In a motion filed last month, APN’s Editor asked the Court to issue declaratory and injunctive relief against the City of Atlanta, that is, among other things, to declare that the City of Atlanta broke the law by not recording a vote or its details–something the City still refuses to admit on both counts–and to enjoin the City from failing to record votes that occur in the minutes of future meetings.

Meanwhile, the City’s motion asked for the Court to rule against APN Editor’s motion seeking declaratory and injunctive relief.

The City has argued it is not necessary for the Court to declare that the City of Atlanta broke the law because the Supreme Court of Georgia has already ruled in favor of APN’s Editor, and because the City has already amended the minutes of the Retreat.

APN’s Editor responded in a reply filed earlier this month that even though the Supreme Court of Georgia ruled on what information is required to be in the minutes, they did not rule on whether the City of Atlanta broke the law, and that declaratory relief is needed because the City still refuses to admit they broke the law.

APN’s Editor also sought a declaration that the Original Minutes did not include any record that a vote occurred at all, seeing as how the minutes originally stated that Councilwoman “Felicia Moore polled the members.”

Councilmembers continue to exhibit confusion about what counts as a vote under the Georgia Open Meetings Act.  Councilmembers Ivory Young (District 3) and Alex Wan (District 6) for example have made statements insisting that the secret vote was not in fact a vote, that it was a poll; Young also referred to it as an expression of opinion, while Wan called it a lark.

And at the November 2012 Council Retreat at Zoo Atlanta, attended by APN, Council President Mitchell conducted four votes that some Councilmembers, including Carla Smith (District 1) insisted were polls and not votes.  While the votes were exploratory in nature, they still counted as votes under the Georgia Open Meetings Act and needed to be recorded.  

Two Senior Assistant City Attorneys showed up at the Retreat after APN arrived.  One, Amber Robinson, disrupted the meeting to advise the Councilmembers that a formal vote was required.

Last month, the City also argued that APN’s Editor was not entitled to an injunction against the City of Atlanta because irreparable harm needed to be shown, and because, if the City of Atlanta took a secret vote again, APN’s Editor could just sue again.

However, APN’s Editor replied that any harm to the public’s trust and confidence in their government is irreparable, and that no acceptable amount of such harm could be quantified by the Court.  Further, APN’s Editor argued that the Georgia Legislature clearly intended for injunctive relief to be an appropriate form of relief because they specifically mention it in the Georgia Open Meetings Act, despite the fact that citizens can always sue again for future violations.

In two new documents filed yesterday, a Second Amended Complaint and a First Amended Motion for Summary Judgment, APN’s Editor seeks an additional form of relief, as a potential alternative to some of the injunctive relief sought against the City of Atlanta: something called a Petition for a Writ of Mandamus, which is provided under Georgia law OCGA 9-6-20, et seq.

A writ of mandamus is basically an order from the Court ordering a specific public official in their official capacity to carry out their duties in accordance with the law.

APN’s Editor had previously named Council President Mitchell and Municipal Clerk Johnson in their official capacities as Defendants in the original complaint.

In an interesting turn of events, Judge Brasher had dismissed Mitchell, Johnson, and other individual defendants from the City of Atlanta as part of an order in August 2010.  However, that order was vacated by the ruling of the Supreme Court of Georgia, thus reinstating them as defendants.

APN’s Editor has asked for the Court to have Mitchell and Johnson appear in Court to address why they believe a writ of mandamus should not be issued requiring them to comply with the law.

APN’s Editor has also sought an Oral Hearing regarding the City of Atlanta’s Motion for Summary Judgment, which the Court is required to grant for such motions.

Municipal Clerk Johnson is required by Section 2-307(b) of the Charter of the City of Atlanta, to “keep… the minutes of the proceedings of the council.”  Thus, mandamus relief is sought to require Johnson to keep such minutes in compliance with the Georgia Open Meetings Act, which requires that all votes and their details be recorded in meeting minutes for cities and other agencies.

Meanwhile, Council President Mitchell is required by Section 2-203(a) of the Charter of the City of Atlanta to “preside at meetings of the Council.”  

In addition, according to Section 2-36 of the Atlanta City Code of Ordinances, “The council president shall propound all questions to the council and shall declare the vote thereof…”  

However, at the February 2010 Council Retreat, Council President Mitchell permitted Councilmember Moore to propound a vote to the Council regarding public comment, even though only the Council President is permitted to propound votes to the Council per the Atlanta City Code.

Further, despite the fact that Mitchell has a responsibility to preside over all meetings and propound all votes, Mitchell permitted Moore to conduct the vote in such a way so that the vote and its details could not be recorded in the minutes.  Thus, mandamus is sought to require Mitchell to propound all votes in the future and to conduct the meeting is such a way as to ensure that Clerk Johnson can record all votes and their details in the minutes of future meetings.


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