by Bill Simon
So, in looking at other states on whether or not a) they have “sunshine laws”, and b) how they handle them, I came upon a case in West Virginia decided in 2009 by their Supreme Court. Kind of a fascinating case, but I didn’t find the details of the case (as in the decisions being rendered) to be what held my interest so much.
It was the fact that the judges that sat on the Supreme Court in West Virginia in 2009 appear to be…approximately…not exact, mind you, but just approximately 50 times more intelligent than the judges who sat on the Supreme Court bench of 1975 in Georgia, or the ones who sat on the Court of Appeals in Georgia in 1992.
The case was Associated Press vs. Canterbury (available here). Feel free to read it as you wish, but I will cover the salient points here.
In West Virginia, their “sunshine law” is referred to as FOIA (Freedom of Information Act). From this case, I conclude that the WV legislature did not leave anything to chance when it wrote its sunshine laws regarding the public’s right to know how their tax dollars are being spent.
From the bottom of Page 4 of this case (and going over to Page 5), it states the following with regards to what WV wanted in terms of sunshine laws (and, I have bolded the law part w/o all the cites getting in the way):
“W. Va.Code § 29B-1-3 (1992) (Repl. Vol. 2007) provides that “[E]very person has a right to inspect or copy any public record of a public body in this state, except as otherwise expressly provided by [§ 29B-1-4] of Associated Press v. Canterbury, 688 S.E.2d 317, 224 W.Va. 708 (W.Va., 2009) [688 S.E.2d 324] this article.”
FOIA defines a “public body” as every state officer, agency, department, including the executive, legislative and judicial departments, division, bureau, board and commission; every county and city governing body, school district, special district, municipal corporation, and any board, department, commission, council or agency thereof; and any other body which is created by state or local authority or which is primarily funded by the state or local authority.“
Notice that first sentence that is excerpted from the WV law? “Every person has a right to inspect or copy any public record of a public body in this state, except as otherwise expressly provided by this article.”
THAT is how law is supposed to work. Because our current Georgia Open Records Act has in it the types of records that are “expressly” exempted from being covered under Open Records. You know what is not expressly exempted from Georgia’s Open Records Act? There is no exemption expressly stipulated for exempting the Judicial Branch, nor the Legislative Branch of state government. What we got in this state is the judicial branch of government “making law” rather than interpreting intent of law.
To further illustrate this (and to demonstrate why, exactly, that WV’s Supreme Court justices are at least 50 times more intelligent than Georgia’s Supreme Court justices), I turn your attention to Page 3 of this WV case, at the top where the word “DISCUSSION” is highlighted. If you go down to the second paragraph, which has a couple of sections highlighted, the justices state the following:
“This Court has long held that “`[w]here the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation.'”
Additionally, as a general matter, “the words of a statute are to be given their ordinary and familiar significance and meaning”…’It is not for this Court to arbitrarily to read into [a statute] that which it does not say.'”
OH-MY-GOSH!! Wow. I just get goosebumps when I read that last sentence. “It is not for this Court arbitrarily to read into [a statute] that which it does not say.”
“…that which it does not say.” Did the Georgia Sunshine Act of 1972 expressly say ANYTHING about exempting the Legislature? NO, it did not.
Did the Open Meetings law that was in place when the case against Judge Hunstein was filed expressly state that the judicial branch was exempt from that law? NO, it did not.
The WV court did not insert words into law that were not written into the law. BUT, the yahoos who sat on the benches of the 1975 SCOG, and the 1992 GCOA decided that they could insert words wherever they want to in law to fix it so that it protects them, and completely subverts the “will” of the people. That is the sign of a corrupt judiciary as opposed to one truly acting within its designated, constitutional role.
One more cite of true remarkableness from the West Virginia case, and then I’ll focus all attention on fixing Georgia’s problem. On Page 4, the WV Court stated the purpose of the FOIA law in WV as designated by their legislature to be as follows (this is the big block of yellow highlight on Page 4):
“Pursuant to the fundamental philosophy of the American constitutional form of representative government which holds to the principle that government is the servant of the people, and not the master of them, it is hereby declared to be the public policy of the state of West Virginia that all persons are, unless otherwise expressly provided by law, entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments of government they have created. To that end, the provisions of this article shall be liberally construed with the view of carrying out the above declaration of public policy. [emphasis added]
You think ANYONE in this state’s judiciary has an understanding remotely resembling what their purpose is with regard to the people of Georgia like these judges in West Virginia so? If there are any, they are very few and very far between the judges that who sit on the Supreme Court of Georgia or the Court of Appeals. (Oh, and just as an aside…sitting on either higher court in Georgia does NOT mean a judge is any smarter of a judge than any other judge who sits on any other bench in this state.)
How To Fix The Root of All Evil in Georgia
Do you think the People of Georgia believe that only the Executive Branch of Georgia is the one branch that could abuse or misuse taxpayer dollars? If you are in Georgia government and you do think this, then you must be either a corrupt legislator, or a member of the corrupt judiciary branch. That is, one who is currently using their office to please themselves, to enrich themselves, to help subvert the core function of their office, or to help out their best buddy do something corrupt, unethical or immoral.
Anyway, here’s the gist of my solution — Propose on the November General Election ballot of 2014 the following Amendment to the Georgia Constitution:
“Unless expressly provided by law, every state officer, every legislator, every agency, every department, including the executive, legislative and judicial departments, division, bureau, board and commission; every county and city governing body, school district, special district, community improvement district, municipal corporation, and any board, department, commission, council or agency thereof; and any other body which is created by state or local authority or which is primarily funded by the state or a political subdivision or local authority shall be required to follow every law in the State of Georgia.”
AND…to make things SUPER simple for Secretary of State Brian Kemp, here’s the Preamble for that Amendment question on the 2014 ballot:
“To make every branch of Georgia government equal in power and every level of Georgia government answerable to the People of Georgia.”
Now, I know there are going to be folks who run to the Legislature to wring their hands about this. Those legislators that don’t want this are the very ones who have used their offices, and/or their office resources and personnel, in an unethical manner. Hopefully, those legislators are in the minority. It’s time that the legislative branch of government take back its 33.33% of the power granted to them by the Constitution of Georgia, and assert itself and its power in this state.
If you guys in the legislative branch want to exempt yourselves from the Open Records Act, fine, do it…but, do it by statute. Have the actual balls to do it in the open, rather than rely on Mommy Judiciary to fight your battles for you. Otherwise, it just looks like you’re impotent and a paper tiger in this state.
But, it’s time for the Judicial Branch to be reined-in. Only by amending the constitution can their power be cut back to its original, intended 33.33%. It will not pass muster if you attempt a new law because they can re-interpret whatever law you propose. They will not be able to argue anything if such an explicit, all-inclusive amendment was voted “Approved” by the People of Georgia.
And, the Executive Branch (i.e., Governor Deal), should be highly in favor of this amendment. Because he and his offices are subject to Open Records Act requests…and is the Governor’s office any more susceptible to abusing taxpayer dollars than anyone in the Judicial Branch? No, they aren’t.
This Amendment is the way the people of Georgia can retain control over their government in accordance with the Preamble to Georgia’s Constitution:
“To perpetuate the principles of free government, insure justice to all, preserve peace, promote the interest and happiness of the citizen and of the family, and transmit to posterity the enjoyment of liberty, we the people of Georgia, relying upon the protection and guidance of Almighty God, do ordain and establish this Constitution.”
The concepts of “free government”, “insuring justice for all” , “promote the interest and happiness of the citizen and of the family”, and “transmit to posterity the enjoyment of liberty” can only be assured if the people of Georgia are assured that every single branch of Georgia government is treating everyone fairly and equitably. The only way anyone can ensure that to happen is to open that “sunshine” and clear the dust away from the branches of government who insist they are supreme over all other branches of government and over the people.
The judicial branch is not superior over any other branch. The Legislature owes themselves and the people who elect them the responsibility and the ability to assert their power as free citizens in this state, and to be able to hold their government accountable as intended by the Constitution of Georgia.
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