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COURT OF APPEALS OVERTURNS ELLERBE, RECORDS ACT CIVIL PENALTIES AVAILABLE
MATTHEW CHARLES CARDINALE
(APN) ATLANTA – Today, Tuesday, February 15, 2022, the Court of Appeals of Georgia ruled in favor of APN’s News Editor and overturned Fulton County Superior Court Judge Kelly Lee Ellerbe, finding that all Georgians–not just the Attorney General–have the right to seek civil penalties under the Georgia Open Records Act against government officials who violate the terms of the Act.
The Case Numbers are A21A1718 and A21A1719.
“We therefore conclude that Cardinale, a private citizen, has a cause of action to seek a civil penalty under OCGA § 50-18-74 (a) and that the trial court erred in ruling otherwise,” the Court of Appeals of Georgia wrote.
To date, since June 2020, City of Atlanta taxpayers have spent over 431,000 dollars fighting against transparency and the public interest, in litigation with Atlanta Progressive News and with APN’s News Editor. The City recently revealed the latest spending numbers on Feb. 11, 2022, in response to a records request.
The majority of the taxpayer dollars have accrued to the Bondurant, Mixson, & Elmore firm, where Robert Ashe, Michael Brandon Jones, and Matthew Sellers have represented the City of Atlanta and various Atlanta officials. (Jones has since left for another firm.)
In 2012, the Georgia General Assembly passed HB 397, amending both the Georgia Open Meetings Act and the Georgia Open Records Act, to, among other things, include civil penalties.
In 2020, the Supreme Court of Georgia ruled, in Williams v. DeKalb,*** that the civil penalty provision of the Georgia Open Meetings Act allowed any person to seek a civil penalty against any government agency official, up to one thousand dollars, for negligently violating the Act.
https://casetext.com/case/williams-v-dekalb-cnty-1
Nearly similar civil penalty language appears in the Georgia Open Records Act.
In Matthew Charles Cardinale v. Michael Brandon Jones (in his personal capacity) and Antonio Brown (in his personal capacity), filed on Dec. 01, 2020, APN’s News Editor complained about the failure of then-Councilman Brown to respond to a Feb. 08, 2020 records request; and about the partial non-responsiveness, deceptiveness, and evasiveness of Jones’s response to several Nov. 20, 2020 records requests.
On March 12, 2021, Judge Ellerbe ruled that APN’s News Editor was not entitled to seek a civil penalty under the Georgia Open Records Act because such penalties could only be sought by the Attorney General.
Judge Ellerbe ruled that there was a slight difference between the text of the two Acts. However, the Court of Appeals disagreed.
“[J]ust as in Williams regarding the Open Meetings Act, we see nothing in OCGA § 50-18-73 (a)’s grant of authority that would mean that only the Attorney General has standing to bring an action to obtain a civil penalty,” the Court of Appeals of Georgia ruled.
“[N]or do we see anything else in the statute that would potentially foreclose private plaintiffs from seeking a civil penalty for a violation of the Act,” the Court of Appeals of Georgia ruled.
“Considering that both the Open Records Act and the Open Meetings Act have the broad purpose to encourage public disclosure of governmental activity, we are compelled to conclude that this minor textual difference between the statutes is a distinction without any meaningful difference,” the Court of Appeals of Georgia ruled.
As a result of the ruling, it is now clear that any person, not only the Attorney General, may seek a civil penalty under either the Georgia Open Meetings Act or the Georgia Open Records Act.
This is the second major victory for transparency and open government at the appellate level secured for the people of Georgia by Atlanta Progressive News.
Previously, in 2012, APN’s News Editor obtained a ruling from the Supreme Court of Georgia banning secret votes in Georgia.
https://casetext.com/case/cardinale-v-city-of-atlanta-2
In today’s ruling, the Court of Appeals of Georgia remanded the case against Antonio Brown and Michael Brandon Jones back to Fulton County Superior Court Judge Ellerbe.
The open records claims against now-former Councilman Brown are reinstated.
The ruling directs Judge Ellerbe to consider whether the complaint against Michael Brandon Jones alleges a violation of the Georgia Open Records Act. Ellerbe has already ruled that the complaint contains “colorable” arguments of fact and law regarding Mr. Jones’s compliance with the Act.
In a second, related appeal, Cardinale v. Tim Keane (in his personal capacity), the Court of Appeals agreed that APN’s News Editor had the right to seek a civil penalty against now-former Department of Planning Commissioner Tim Keane for failing to respond to several records requests.
However, the Court of Appeals found that Ellerbe did not err in using her discretion to, without explanation, decline to issue a civil penalty against Mr. Keane. The Court of Appeals of Georgia ruled that no explanation is required.
ELLERBE REFUSES TO RECUSE
In two related cases currently pending before Judge Ellerbe, APN’s News Editor and APN have both filed motions seeking for Ellerbe to recuse herself.
In a Motion to Recuse filed on January 10, 2022, APN’s News Editor attested to conducting a review of APN’s Constant Contact database and learning that Judge Ellerbe has been reading APN’s e-newsletters regarding the court cases before her, collecting the e-newsletters to her personal email account, and routinely going back to research and review them several times.
APN added Judge Ellerbe, then-Kelly Amanda Lee, to the APN’s email list back in 2010 before she became a judge.
Because the APN e-newsletters often contain facts and information about the open meetings and open records litigation not on the official record, the Motion to Recuse argues that Judge Ellerbe’s collection of e-newsletters have become a parallel, second, unofficial record in the case.
Georgia Code of Judicial Conduct Rule 2.9(C) provides that: “Judges shall not investigate facts in a pending proceeding or impending matter independently, and in making adjudicative decisions shall consider only the evidence presented and any facts that may properly be judicially noticed. The facts a judge shall not investigate include those derived from personal observations or media, including printed publications, computer retrievable electronic data, or internet and social network communications.”
Georgia Code of Judicial Conduct Rule 2.11 provides that: “(A) Judges shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned, or in which: (1) The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of disputed evidentiary facts concerning an impending matter or a pending proceeding.”
In a Feb. 08, 2022 ruling, Ellerbe refused to recuse herself from one of the pending cases, going so far as to call APN’s News Editor a “gamesman” in the ruling.
Judge Ellerbe ruled that if APN and APN’s News Editor did not know that Judge Ellerbe has been reading APN’s e-newsletters regarding the court cases before her, collecting the e-newsletters to her personal email account, and routinely going back to research and review them several times, then APN and APN’s News Editor should have known it.
The motion to recuse in the second pending case is still pending.
Judge Ellerbe has chosen to continue reading APN’s e-newsletters, even after denying the Motion for Recusal, which means that she might be reading about herself reading after herself right now.
Once the pending cases reach the Court of Appeals of Georgia, APN and APN’s News Editor will ask the Court of Appeals to review whether Judge Ellerbe erred by not recusing herself from the pending cases, in which the Motions for Recusal have argued that Ellerbe has manifested a clear bias.
Another forthcoming appeal to the Court of Appeals of Georgia will challenge Judge Ellerbe’s recent ruling that the official minutes of agency meetings may falsely imply that agency members participated in unanimous votes even when they were away from their seats.
*** Ed Williams is a DeKalb County resident who truly cares about what happens to this County. He has won a few cases against the County, and his cases are being cited in this and numerous other cases. We are very proud of him, and he is a credit to this County. Fortunately, we communicate from time to time. If anyone knows what is going on in the County, it will be him. If he cannot answer a question that I ask him, he knows the right people to ask, and he gets the answer. A true credit to our County and the community!
Have a Safe and Happy New Year!!!
Tiponi — Manifest Injustice — J & J Ranch, Stone Mtn, GA — FOREVER VICTIMS
Last night my baby-girl (4-legged), died for no apparent reason. I have to assume she was poisoned. An hour earlier, she was happy and healthy. She laid down and died, and it is breaking my heart! She was eight years old, the date on my camera is wrong. She was born in 01-2013. Tiponi — Manifest […] […]
Tiponi — Manifest Injustice — J & J Ranch, Stone Mtn, GA — FOREVER VICTIMS
Have a Safe and Happy 4th!
5 Justices Recuse in Ex-Georgia Perimeter President’s RICO Case Against Regents Stephen Humphreys has been fighting a string of adverse trial and appellate court rulings against his client, former Georgia Perimeter College President Anthony Tricoli, who was ousted amid claims he mishandled millions in college funds. By Greg Land
( Stephen F. Humphreys, Atlanta. (Photo: John Disney/ ALM) )
5 Justices Recuse in Ex-Georgia Perimeter President’s RICO Case Against Regents
Stephen Humphreys has been fighting a string of adverse trial and appellate court rulings against his client, former Georgia Perimeter College President Anthony Tricoli, who was ousted amid claims he mishandled millions in college funds.
By Greg Land | May 06, 2020 at 03:16 PM
Update appended below:
Five of the state’s Supreme Court justices recused from a case centered on a yearslong battle between a former college president whose claims he was ousted as part of a cover-up of millions of dollars siphoned off by the University System of Georgia that has grown to include allegations of fraud and racketeering involving the state attorney general’s office.
Former Georgia Perimeter College President Anthony Tricoli and and his lawyer, Athens solo Stephen Humphreys, have been consistently stymied by lower court rulings, and the appeal the justices will hear ostensibly only involves a $6,675 sanctions order levied by a DeKalb County judge.
Humphreys is hoping he will at last get his chance to lay out what he considers insurmountable evidence of wrongdoing by the university system, Board of Regents and attorney general’s office, aided by the acquiescence or bias of jurists at every level.
Humphreys sought the recusal of all nine justices last month for a variety of reasons: Some had already ruled against him as Court of Appeals judges, others in declining to hear prior appeals as justices.
Justice Sarah Warren is a former Law Department attorney, he noted, and Justice Nels Peterson was once legal counsel for the state Board of Regents.
A two sentence order issued Monday said Justices Peterson, Warren, Charles Bethel, John Ellington and Carla Wong McMillian have decided to recuse. Chief Justice Harold Melton and Justices David Nahmias and Michael Boggs declined to do so.
Humphreys said that, while he welcomes the recusals, he must wait and see whether the court will agree to hear his appeal.
“They denied review the first time, even though the Court of Appeals initiated summary judgment on their own, with no notice or opportunity for us to respond,” Humphreys said.
“I’m arguing they illegally denied cert the first time under the summary judgment statute, and that they have to review it.”
“Of course, they’ll have to round up some judges first,” said Humphreys, who brought aboard criminal defense specialist Bruce Harvey to assist with the case in 2018.
Humphreys also is representing the plaintiffs in a Fulton County case asserting that the university system and former state Attorney General Sam Olens conspired to force out former Kennesaw State University President Daniel Papp so that Olens could take that job, which he held from 2016 to 2018.
That case was also dismissed and the justices denied cert in March, but Humphreys has a motion pending asking that the case be consolidated with Tricoli’s at the high court.
A spokeswoman for Attorney General Christopher Carr declined to comment.
The case began with Tricoli’s forced ouster in 2012 after auditors said more than $16 million had gone missing. The sum in question was later reduced to about $10 million.
Tricoli sued the Board of Regents and its members along with other system officials and Olens for claims including fraud, breach of contract and violations of Georgia’s Racketeer Influenced and Corrupt Organizations Act, arguing he was set up as the fall guy for a scheme to loot Georgia Perimeter’s reserves.
The state responded with a motion to dismiss, arguing among other things that the RICO statute contained no express waiver of sovereign immunity for the state and that Tricli had produced no written contract.
DeKalb County Superior Court Judge Daniel Coursey dismissed the suit, ruling the tort claims were barred by the Georgia Tort Claims Act’s sovereign immunity provisions, as were the RICO claims.
Tricoli appealed, but the court’s seven judges upheld Coursey’s dismissal in 2016.
Writing for the majority, Judge Gary Andrews wrote that Tricoli’s RICO claim “is an imaginative theory of recovery to assert against the state itself, but that is about all it is—imagination. The Georgia RICO Act does not express any waiver of sovereign immunity.”
The judge also wrote that, while Coursey had ruled on the state’s motion to dismiss, Tricoli had introduced evidence that he did have a written contract, thus changing the motion to one for summary judgment.
“Tricoli’s submission of documentary evidence in response to the motion to dismiss constituted, in effect, a request to convert the motion into one for summary judgment and waived the notice requirement for such a conversion,” Andrews wrote.
Presiding Judge Yvette Miller dissented, taking issue both with the court’s conversion of Coursey’s order changing the motion to one summary judgment and with its assertion that the RICO statute shielded state actors under sovereign immunity.
“The trial court did not convert the motion to dismiss into a motion for summary judgment,” she wrote, and “could not do so without providing Tricoli with notice.”
She also said the RICO act did not have to include specific “magic words” waiving sovereign immunity.
“The RICO statute includes government entities in its definition of enterprise, and it specifically provides a private individual with a civil remedy for RICO Act violations,” Miller wrote.
The Georgia Supreme Court denied cert on Tricoli’s appeal, as did the U.S. Supreme Court.
Humphreys then filed a motion asking Coursey to set aside his ruling dismissing the case.
Coursey denied the motion, and a lawyer with Carr’s office followed up with a motion for sanctions against Tricoli and Humphreys for filing it.
Coursey wrote the motion was “riddled with expansive and baseless assertions that display stubborn ignorance and purposeful disregard for the facts and the law.” The judge levied a $6,657 sanction based on the time Senior Assistant Attorney General C. McLaurin Sitton spent responding to the motion.
Humphreys appealed that order and, while it was pending, filed a supplemental brief alleging massive fraud by the university system involving federal grant money, to which the state never responded.
After hearing oral arguments—which included then-Judge McMillian chiding Humphreys for using his time on a “rant” unrelated to the issues at hand—the Court of Appeals affirmed Coursey’s order in October.
In his December application for cert to the state Supreme Court, Humphreys came out swinging: “This case is Georgia’s Watergate, only worse—by at least a billion dollars in fraud by state government officials,” he wrote.
“This case has got the documented crime,” he continued. “It’s got the cover up. It’s got the attempt to evade the most fundamental law of the land, not just by a cabal within the executive branch of state government, but taking in the Georgia judiciary, which has gone so far as to give a free pass to witness intimidation and whistleblower retaliation.”
Update:
Humphreys disputes that the only issue he has asked the Supreme Court is whether he should have been sanctioned for asking Judge Coursey to set aside his order dismissing the case.
“That is the only issue on which the AG responded,” said Humphreys, noting that he raised other matters and filed three supplemental motions that the Court of Appeals also dismissed.
“[T]he AG’s failure to respond on those issues does not mean they are not before the court on my petition,” said Humphreys in an email.
According to the brief the state filed with Supreme Court, the issue before the justices is: “Whether the Court of Appeals correctly affirmed the trial court’s exercise of discretion in sanctioning Petitioner and his counsel, Stephen Humphreys, for filing a motion to set aside a judgment that had been affirmed on appeal and which motion the trial court found devoid of support in fact and law
Chase Ignored Identity Theft and Stole Our Money! If you Bank with Chase run as fast as you can!!!!!!!!!!!!!!!!!! — J & J Ranch, Stone Mtn, GA
While the country is on lockdown, and no one can travel anywhere, someone in Florida managed to get my debit card, and went to Walgreen’s and hit me with $105.95 twenty + times. So, Chase took my $900 it took forever to save, and $1300 more dollars, and claims it was me in Florida that […]
Advanced knowledge? CDC started hiring QUARANTINE program managers last November — The Most Revolutionary Act
The CDC appears to have had advanced knowledge of the coronavirus pandemic outbreak, as the agency which deliberately delayed testing kits in the USA for nearly a month was hiring quarantine program advisors in November of 2019, to cover Texas, New York, California, Washington, Florida and many other areas where the pandemic is now exploding. […]
Georgia's Corrupt Judicial System 
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