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Next Week at the Court

September 30, 2011

The Supreme Court will hear oral argument in 13 cases on Monday and Tuesday of next week, two of which are civil cases within the scope of our coverage. Brief summaries of the issues and the cases are below.

Tuesday, October 4, 2011 10:00 am Sitting

S11A1515. Roberts et al. v. Deal, Governor et al.

This case is rooted in problems the Warren County Board of Education faced with its accrediting agency. After a group of citizens filed a petition with the Governor to remove members of the Board of Education when the school system was placed on probation by its accreditor, an administrative law judge heard the case. The ALJ recommended the Governor remove all three school board members. The Governor then removed the members of the board of education by executive order on August 6, 2010.

The removed board members filed a Petition for Judicial Review and Petition for Stay in Fulton County, challenging the validity of the removal order. The trial court denied the stay and the board members appealed. While the trial court was considering the petition, the vacancies on the Board of Education were filled. The Warren County School System received full accreditation on June 24, 2011. The Supreme Court granted the application for discretionary appeal on March 31, 2011 to review the following three issues:

  1. Did the court err in holding that the Governor is authorized to remove Applicants from their positions on the school board? See Ga. Const. of 1983, Art. VIII, Sec. V, Par. II; OCGA §§ 45-10-3 & 45-10-4.
  2. Did the court err in holding that Applicants’ removal based on discriminatory speech was constitutional because they were public employees? See Garcetti v. Ceballos, 547 U.S. 410 (2006); Pickering v. Bd. of Educ., 391 U.S. 563 (1968). See also Rangra v. Brown, 566 F.3d 515, 523 (5th Cir. 2009), dismissed as moot, 584 F.3d 206 (5th Cir. 2009); Velez v. Levy, 401 F.3d 75, 97 (2d Cir. 2005); Rash-Aldridge v. Ramirez, 96 F.3d 117 (5th Cir. 1996).
  3. Are the current issues presented in this appeal moot, and, if not, what remedy is available to Applicants if they were to prevail on their claims in this appeal?

The board members filed their principal brief, arguing among other claims that the Governor’s actions violate the state constitution, claiming that a recall petition is the only means of removal of an elected official. The citizens responded, claiming the claims are barred by laches and the state constitution allows the removal of board members. The Governor also filed a brief arguing the case is moot and that the Governor was authorized to remove the members of the board.

The Supreme Court will hear oral argument on October 4, 2011.

Tuesday, October 4, 2011 2:00 pm Sitting

S11G1047. Cardinale v. City of Atlanta et al.

This case concerns the enforcement of Georgia’s Open Meetings Act. The Atlanta City Council held an elected officials’ retreat and advertised it as a public meeting. During the retreat, Council members voted on whether to amend their rules on public comment at committee meetings. The minutes do not reflect how the individuals voted, but merely state that the membership was “not in support of amending the existing law.”

Cardinale was unable to obtain the exact vote and filed a pro se action, claiming he had a right to detailed information on which members voted for and against the rule change. The trial court granted the City’s motion to dismiss, finding that the Open Meetings Act did not require a detailed vote.

The Court of Appeals (McFadden, Phipps,  Andrews) unanimously affirmed the trial court ruling, finding that the Open Meetings Act did not require the disclosure of names in a non-roll-call vote, and that Cardinale’s complaint did not contain an allegation of an advertising violation.

Cardinale filed a pro se petition for certiorari and the City did not respond.

On July 11, 2011, the Supreme Court granted certiorari in a 5-2 vote to consider the following question:

  1. Whether the Court of Appeals erred in interpreting the Open Meetings Act to allow the minutes of a public meeting not to record “the name of the persons voting against a proposal or abstaining” where the vote was not taken by roll-call and was not unanimous. See OCGA § 50-14-1 (e) (2).

Cardinale filed his principal brief, alleging the Act requires minutes to include the names of individuals voting for or against proposals in non-roll-call votes that are not unanimous. The City responded, arguing the plain language of the statute supports the Court of Appeals’ determination.

According to Cardinale, the Court has also requested an amicus brief from Attorney General Sam Olens on the Open Meetings issue. The Attorney General filed the requested amicus brief on September 28, arguing that the numerical vote did not have to be recorded. The Georgia First Amendment Foundation filed an amicus brief in support of Cardinale.

The case will be heard at oral argument on October 4, 2011.


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