City of Cumming claims “We can break the law and you can’t touch us!”
by Bill Simon
Prelude
I am reminded of a scene from the movie Lethal Weapon 2 where, towards the end of the movie, one of the evil guys from South Africa and the cop character that Danny Glover played are in a standoff. The evil guy is standing on a platform about 50 feet higher than Glover’s character and he whips out his South African credentials and says “Diplomatic immunity…” whereupon Glover’s character responds with a shot from a snub-nosed .357 and a reply of “…has just been revoked.”
Similar to the concept of “diplomatic immunity”, in Georgia, we have “sovereign immunity” whereby government entities in Georgia can claim, under special circumstances, an “immunity” from a lawsuit.
In a current case being heard in Forsyth County Superior Court, the legal counsel for the City of Cumming is telling one of its citizens, as well as the Georgia State Attorney General’s office, to, essentially, “Go **** “ themselves.
Cumming Mayor H. Ford Gravitt ordered Cumming Police Chief Casey Tatum to escort the citizen, Nydia Tisdale, from the meeting and told her “You cannot film this meeting.”
Tisdale filed a complaint with the state AG’s office, claiming that Gravitt’s actions violated the state’s “Open Meetings Act.” And that brings us to this current-day situation…
“Sovereign Immunity”
Last Thursday in court, Kevin Tallant, attorney for the City of Cumming, argued (according to this Forsyth News story – H/T Todd Rehm & GaPundit.com): “…that Gravitt could not be held liable in the case due to sovereign immunity since he was acting in his official capacity during the April 17 city council meeting….Georgia’s Constitution…provides that officials cannot be sued when acting in those capacities. Therefore, the case should be dismissed.”
The lawyer from the AG’s office, Kelly Campanella, disagreed with that line of reasoning, stating that “Sovereign immunity cannot be invoked by something that is a child of the state, a creation of the state,†Campanella said. “The state is sovereign to the city of Cumming, but Cumming is not the state’s sovereign. Conceptually it just doesn’t apply.â€
Based on Georgia case law that I have read, the arguments from Tallant are dead wrong, and the arguments from Campanella are weak at best.
So, while I am fairly certain that the Georgia AG’s office will not use this case I cite below (because, AG Olens’ ego is far greater in size than the entire history of case law in Georgia), I’m just going to provide my readership with the quite cogent case law I think applies to this Cumming Mayor issue…in the hopes that any elected official dumb enough to follow in Mayor Gravitt’s footsteps will think twice.
The case that applies is Ctr. for a Sustainable Coast, Inc. v. Ga. Dep’t of Natural Res., 734 S.E.2d 206 (Ga. App., 2012) (aka “Center”).
The details of this case are there for you to read at your leisure, but the cogent part of the decision by Georgia Court of Appeals Chief Judge Ellington can be located on Page 3 of 4, right in the middle where I have highlighted the Court’s conclusion in yellow highlight on when “sovereign immunity” clearly cannot be used: “…because a governmental entity cannot cloak itself sovereign immunity while performing illegal acts to the detriment of its citizens” [underlining emphasis added]
Mayor Gravitt, in throwing-out a citizen from a meeting for legally filming that meeting, whether it be held to be an “open meeting” via the Georgia Open Meetings Act (or via a separate part of Georgia law found in O.C.G.A. § 36-80-1) was performing an illegal act in his “official duties,” and therefore, neither he, nor the City of Cumming, can claim “sovereign immunity” when agents of a municipality directly violate a state law. A law created, actually, to directly benefit the citizens Tallant so eagerly attempts to represent in his claims.
So, back to Tallant’s claim, Gravitt cannot, while acting in his “official capacity” as mayor, violate the law and then claim “Sovereign Immunity! Sovereign Immunity! I gots me Sovereign Immunity and I can do ANYTHING I damn well please because of it.”
No, ya can’t, actually. This citation from the Center case is the proper argument that the AG’s office should employ in rebutting the City of Cumming’s argument.
My guess is that the AG’s office won’t do so because in doing so, they will highlight the fact that Attorney General Sam Olens himself argued on behalf of the Ga Department of Natural Resources that sovereign immunity did apply in the Center case, and that particular line of legal reasoning he employed actually got a hard rebut by the Appeals Court in 2012.
July 29th, 2013 at 5:33 pm
To be fair, Nydia is a citizen of Roswell, not Cumming or even Forsyth county. She is a dedicated watchdog of our electeds up there however.
July 29th, 2013 at 9:09 pm
Appreciate the clarification.
However, the state law does not stipulate anything about a citizen being required to actually be within the tax boundaries of a political subdivision in order to be a witness to, or take a recording of, any municipality’s public meeting.