Before You Recuse Me (Take a Look at Yourself)
After a former Georgia Supreme Court Justice joined the “Cop City” Open Records Lawsuit as counsel for the Atlanta Police Foundation, UGA’s First Amendment Clinic withdrew as plaintiffs’ attorney. But the case continues with new counsel who has filed a motion citing the justice’s past opinion in a similar case.
Plaintiffs in a lawsuit against the Atlanta Police Foundation have filed a motion to show cause for APF’s failure to comply with the Georgia Open Records Act.
The motion, filed July 19th by attorney Joy Ramsingh on behalf of the Atlanta Community Press Collective and Lucy Parsons Lab, follows the APF’s terse, 14-page answer to the plaintiffs’ original 137-page complaint.
The plaintiffs’ complaint was first filed in January by attorneys from the University of Georgia’s First Amendment Clinic.
APF’s answer was filed in May by attorneys Dominyka Plukaite and Harold Melton. Melton is a former chief justice of the Georgia’s Supreme Court.
Also in May the Guardian reported that the Dean of UGA’s Law School had ordered the First Amendment Clinic to drop the case and all advocacy work. The article mentioned that Melton is also a UGA Law School Grad and current faculty member and describes the school’s donor and alumni networks as major power brokers in the state.
“Cop City” refers to a large Public Safety Training Center currently under construction in the South River Forest area of Dekalb County.
The Atlanta Community Press Collective is a self-described “abolitionist, not-for-profit media collective” whose stated goal is “to make the day to day workings of local government accessible to the public and to provide an independent voice in a local media landscape increasingly dominated by corporate interests.”
ACPC’s coverage of “Cop City” has included sympathetic profiles of activists and defendants in the state of Georgia’s RICO indictment, but also live coverage of city council meetings and document-based investigations.
Lucy Parsons Labs is, according to its website, “a charitable Chicago-based collaboration between data scientists, transparency activists, artists, & technologists that sheds light on the intersection of digital rights and on-the-streets issues.”
The Atlanta Police Foundation describes itself as “an independent non-profit organization that provides strategic planning, public safety infrastructure investment, innovative technology, career-long law enforcement training, and variety of community programs designed to assist the Atlanta Police Department in its mission to make Atlanta a safer city.”
The main issue in the lawsuit is whether the Atlanta Police Foundation is subject to the Georgia Open Records Act.
The First Amendment Foundation’s Complaint
In the original complaint, the plaintiffs, Atlanta Community Press Collective and Lucy Parsons Labs, sued the Atlanta Police Foundation for violating the Georgia Open Records Act alleging that APF is a private organization that performs public functions for the City of Atlanta, including the construction of the public safety training center. The plaintiffs submitted multiple open records requests to APF for documents related to the training center with no response.
The complaint itself is only 15 pages but adds numerous exhibits including the APF’s Articles of Incorporation, a city ordinance and lease agreement, and emails from the state Attorney General’s Office seeking its mediation in the ORA dispute.
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APF’s Answer
In its Answers and Defenses APF argues that it is not subject to the ORA because it is an independent non-profit organization. It denies that it performs services on behalf of the City of Atlanta and asserts that it works independently and has no responsibility to the City or the Atlanta Police Department, only to its supporters and donors. The APF acknowledges that much of its work benefits the City but maintains that it does not work for or report to the Mayor, City Council, or the Chief of Police.
The APF’s answers are succinct if not evasive. It’s filing frequently denies knowledge or information sufficient to form a belief about the truth of the allegations in the Complaint. This occurs in 28 out of the 52 numbered paragraphs.
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Plaintiff’s Motion
The plaintiffs motion filed July 19th cites a concurrence written by Justice Melton in the Georgia Supreme Court case Smith v. Northside Hosp., Inc., 302 Ga. 517 (2017). In this concurrence, Justice Melton agreed with the majority’s holding that the records in question were public records subject to disclosure under the ORA.
In citing Melton, and to show its applicability, the motion brackets in “City” and “APF” to replace “Northside” and “Authority.”
“APF admits that the Mayor ‘authorized’ and ‘created’ APF. Answer, ¶ 15, Ex. B (Interrogatory Nos. 2–3). It therefore ‘defies credulity’ that APF would not be subject to the Open Records Act ‘when it was the [City] itself that “created” [APF] for the purpose of carrying out…its public duties.’ Smith v. Northside Hosp., Inc., 302 Ga. 517, 532 (2017) (Melton, J., concurring).”
The original sentence in Melton’s 2017 concurrence reads:
“Indeed, it defies credulity that Northside could be completely separate from and do nothing ‘on behalf of’ the Authority when it was the Authority itself that ‘created’ Northside for the purpose of carrying out virtually all of its public duties.”
At the time of the court’s unanimous decision, press advocacy groups hailed it as a victory for press freedoms and transparency as in this article from the Savannah Morning News.
“Georgia Press Association attorney David Hudson filed a friend of the court brief with the Supreme Court for the GPA, Georgia First Amendment Foundation, the Savannah Morning News and the Atlanta Journal Constitution in support of transparency and opening the records to public disclosure.
“‘The court rejected the idea that a public authority could create a private entity to carry out its business and be exempt from the Open Records Act because the trial court in Fulton County rendered its decision based on Northside’s argument that it was not subject to the act,’ Hudson said Thursday.”
What the Lawyers Say
Asked via email if Justice Melton was already a counsel for APF or if ACPC or the UGA clinic knew he would be when filing the case in January, new plaintiffs attorney Joy Ramsingh told me “Not to my knowledge, no.”
As a non-lawyer seeking clarification, I asked why the original complaint didn’t cite Smith v. Northside Hosp. including Justice Melton’s concurring opinion, but after his answers on behalf of APF it was included in the motion.
Ramsingh explained,
“The purpose of a Complaint is to set forth the facts and a bare statement of the law that has been violated. Our motion includes much more case law, including Smith v. Northside. It’s typical for motions to include more law/legal analysis than the Complaint.”
As to when APF will respond,
“We expect APF to respond within 30 days of the date it was served, by August 19, 2024.
And will PF be sending their own interrogatories to plaintiffs?
“APF has indicated that it may send discovery to us. I find that baffling. There are only two legal issues here: (1) is APF subject to the Open Records Act, and (2) are these public records subject to a legal exemption? I cannot think of an iota of information that my clients would have that would be relevant to either of those issues. In the Smith v. Northside case, the Court held that it was improper for the agency to seek discovery relating to requester identity or requester motive. Because the requester has no relevant information to offer, it’s very unusual for an agency to serve a Plaintiff with discovery in an ORA case. So, I’m not sure what APF intends to accomplish with that, but I suppose we’ll find that out soon.”
An email to Justice Melton with similar questions and a request for comment on the First Amendment Clinic’s dropping advocacy was not answered.
On World Press Freedom Day an attorney for UGA’s First Amendment Clinic wrote an article for ACPC’s website highlighting its work and specific conflicts of interest involving the Atlanta Journal-Constitution and “Cop City.”
“Supporting local news outlets that do environmental journalism is important because larger media outlets are often conflicted out due to partnering with companies involved in environmentally damaging businesses or receiving financial support from them …. This has borne out here in Georgia too. Last December, the publisher of the Atlanta Journal-Constitution (AJC), the largest distribution newspaper in the state, published an op-ed in the AJC voicing his support for Cop City. At the bottom of the op-ed is a disclosure that reads, “The James M. Cox Foundation, the charitable arm of Cox Enterprises, which owns The Atlanta Journal-Constitution, has contributed to the training center fundraising campaign.”
UGA Alumni v. its First Amendment Clinic
The May Guardian article quotes an editor for ACPC as being told the law school clinic stopped advocacy because UGA itself is subject to open records requests which creates “a conflict of interest.”
There seem to be plenty of those to go around.
Melton was first appointed to the Supreme Court in 2005 by then Governor Sonny Perdue to fill a vacancy on the bench caused by a justice retiring before his elected term ended. Not so coincidently, Melton had been serving as Gov. Perdue’s Executive Counsel.
Melton was named Chief Justice in 2018, after the Smith decision. His own retirement in 2021 allowed Gov. Brian Kemp, also a UGA grad, to appoint his replacement. (The replacement, Verda Colvin, is another UGA Law School grad.)
There has been an ongoing pattern of Georgia Supreme Court justices retiring before their terms end allowing Governors to appoint replacements who will then become incumbents in any retention election. Unseating an incumbent Supreme Court Justice via election is rare.
Gov. Perdue was also a UGA Grad and a political mentor to current Gov. Brian Kemp. While Kemp can’t directly appoint the University System’s Chancellor he managed to use his appointment powers over the Board of Regents to orchestrate Perdue’s eventual ascension to that post in 2022.
Disclosure: I also went to UGA, but as a lowly music major, not in law, politics, or media.
