By Pat Cooper
If Fayette County thought the subject of redistricting was over, they’re going to be surprised with the latest turn of events.
Allegations of collusion and unethical behavior have arisen as a result of a Fayette County attorney’s suit against the county regarding the disproportionate sizes of the voting districts. And, on August 29th, a few residents banded together to file an Intervenor’s Motion to Dismiss in the 11th Circuit U.S. Court of Appeals.
On March 15 Peachtree City attorney Rick Lindsey filed a civil action against the county commission and the Fayette County Board of Elections, challenging the constitutionality of the current districts “in as much as the present districts of the county commission are so disproportionate in population that they violate the principle of ‘one person, one vote’ and the continued use of such districts cannot be justified as furthering a compelling governmental interest.”
Lindsey’s suit asked for a declaration that, because of the disproportionate sizes of the current districts, their continued use in future elections, including the election scheduled for 2012 is unconstitutional. The suit also asked the court to implement a new redistricting plan consistent with constitutional requirements, as well as injunctive relief prohibiting further board member qualifications from being determined or elections from being conducted.
The move came after a month long battle to have the county’s proposed redistricting approved by the legislature.
On February 9, county attorney Scott Bennett told commissioners they needed to vote on a reapportioned map more in keeping with the 2010 census figures. Then, on Valentine’s Day, the commission voted on a new map, then was submitted to the Georgia legislature for its approval.
At the February 14 meeting,
Bennett said the rush to reach a decision that night came from the length of time for federal judiciary approvals, at approximately 60 days, so everything will be cleared in time for the county’s qualifying in May and elections in November.
If the approvals haven’t been ratified, then the county’s voting results could be nullified, which would entail holding a special election for a number of commission seats slated for the ballot. Bennett was fairly sure the five district map he presented to the commission would withstand judicial scrutiny.
With tight timelines, a busy legislative schedule and other delays, Fayette County’s delegation leader Rep. Virgil Fludd (D-Tyrone) announced two weeks ago that there was no way for the commission’s proposed map to go before the legislature, so it wasn’t “legislatively possible” for the reapportioned maps to be approved in 2012.
At the time, Lindsey said that after the stall in the legislature, somebody had to do something to push the reapportionment through, so he stepped up to the plate.
Not so, according to local attorney Wayne Kendall, who is accusing Lindsey of colluding with the Fayette County Board of Commissioners and Bennett to have the suit filed- and settled- to get the five districts implemented.
U.S. District Court Judge Timothy C. Batten, Sr. signed a consent decree which approved the county’s five-district map, noting that “although the Fayette County Commission adopted a plan which provided for districts that are constitutionally proportioned and submitted that plan to the Georgia General Assembly for passage, the General Assembly has failed to act on that plan and will recess soon without doing so. Therefore, unless this court adopts a remedial plan, there will not be a constitutionally apportioned plan for use in the 2012 primary and general election...based on the 2011 census and which meets the requirements of state and federal laws.”
Kendall-- who was the local attorney of record for the National Association of Colored People’s suit against the county and the board of education alleging that the county’s method of electing members of the boards violated the federal Voting Rights Act filed in 2011-- filed in the district court of appeals asking for Batten’s decision to be vacated, citing, for one, that “there is no indication that the Defendants were ever served with the complaint and a summons.”
Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied. "[S]ervice of Summons is the procedure by which a court having venue and jurisdiction of the subject matter of the suit asserts jurisdiction over the person of the party served."
“Eleven (11) days after the filing of the complaint, on March 26, 2012, the parties entered into a joint motion seeking approval of a Consent Decree settling the case.
“The next day, on March 27, 2012, this court executed the proposed Consent Decree which had been submitted the previous day. [In the Consent Decree, the Court ordered declaratory and injunctive relief declaring the then existing method of election for the Fayette County Board of Commissioners to be unlawful.”
More than that, said the plaintiffs, “In addition to ordering the declaratory and injunctive relief, as requested by the Plaintiff’s Complaint, the Consent Decree also awarded Plaintiff Lindsey, $2,750 in attorney’s fees and expenses of litigation for representing himself as the Plaintiff in the case.”
On May, 15, the Plaintiffs in the NAACP case took the deposition of county commissioners Steve Brown and Robert Horgan. Both commissioners were questioned as to their knowledge of the Lindsey case. Both knew Lindsey from previous dealings with him. According to documents, both commissioners testified under oath that Bennett, the county’s in-house legal counsel, had informed them that he had contacted Lindsey for the purpose of soliciting him to sue Fayette County.
Brown testified that the reason Lindsey was asked to sue Fayette County was to get the February 14 re-districting plan enacted into law by court decree in light of the fact that the County had failed to obtain legislation through the Georgia General Assembly.
“I have limited details, other than it was a request from our attorney to him to go ahead and move on it and have the judge draw some sort of conclusion so that we can send something to the Department of Justice, because it would have been impossible to get it through the legislature...So we knew we had to do the reapportionment. And again, I was a very avid supporter of saying we need to get this through. So that was the remedy that was concocted.”
Horgan’s statement, though similar, was less specific, stating he had a conversation with Bennett wherein he was told that Lindsey was going to sue the county for the one person, one vote right act. “I guess whatever the lawsuit is currently under.”
Kendall asked Horgan if Bennett asked Lindsey to sue the county.
“I think so, yes. I'm not a 100 percent sure. I wasn't there. But I believe that's what happened.”
Subsequent to taking the depositions of Brown and Horgan, counsel for the plaintiffs in the NAACP case sent all the attorneys involved in the Lindsey case a letter asking them to respond to the testimony given by Brown and Horgan. The purpose was to get a firsthand response from the attorneys to the testimony which indicated that through the devices of in-house counsel, Bennett, the county had colluded with Lindsey to bring about the claims made by Lindsey in order to implement the re-districting plan without legislative approval.
“Where lawyers solicit among themselves, other lawyers, to file suit against their own clients for the purpose of creating a case in the federal judiciary in order to circumvent the dictates of the legislative branch of government then there is no actual adversarial case or controversy. Not only is there injury in fact to those who must suffer the ill effect on their rights by the fabricated controversy and its manifestation in a contrived Consent Decree, but the entire system of justice and the delicate balance struck in the separation of co-equal branches of government are also deleteriously injured.
“Contemporaneously with filing this Motion to Intervene the putative intervenors have filed their Motion to Dismiss the Plaintiff’s Complaint and to Vacate the Consent Decree. This Motion to Dismiss the Plaintiff’s Complaint and to Vacate the Consent Decree is grounded on the following: (1) due the collusion between the Plaintiff and Defendants the Plaintiff’s Complaint should be dismissed because it fails to present an actual case or controversy, therefore, this Court is without jurisdiction to act upon it; and (2) the Plaintiff’s Complaint fails to state a claim upon which relief can be granted as malapportioned residency districts have never been declared to violate the Equal Protection Clause of the Fourteenth Amendment or the doctrine of “one person, one vote”, as enunciated in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)10.
“The one person one vote doctrine applies to election districts - not residency districts, of the type involved here. No U.S. Supreme Court case or federal Circuit Court case has ever held that the doctrine of “one person, one vote” applies to residency districts in an at-large voting scheme.
“The intervenors have identified several unusual circumstances: (1) there is no record in the docket report that the Complaint was ever served upon the Defendants or that service of process was ever acknowledged; (2) the original case was pending only twelve (12) days; (3) a consent decree was entered by the Court, the next day after a joint Motion to Approve of it was filed, without a hearing of any type; and (4) two County Commissioners have testified, under oath, that the County’s in-house lawyer procured the Plaintiff to file the Complaint against his own client. All of the above are highly irregular and unusual circumstances. Where there is a suggestion that the court has been fraudulently manipulated into awarding relief, where none is due, the court should on its own motion inquire into the circumstances and methods by which it has assumed jurisdiction.”
In response to Kendall’s observations, Lindsey responded that “contrary to your assertions and apparent belief, Scott Bennett and I did not collude or in any way act improperly in the above-captioned lawsuit or at any other time. From the portions of the deposition transcripts you provided to me, I do not see how you could jump to such a conclusion. Both deponents stated that they were not party to any conversations that Scott Bennett and I may have had.”
Lindsey also noted that all of the factual statements are correct and that all the legal arguments are based upon sound readings of the pertinent laws.
“Since you are involved in a different lawsuit with the county, I assume you are fully aware that the previous commission districts were grossly malapportioned. While the citizens of Fayette County vote “at large’ for all of the county commissioners, candidates for three of the five posts were required to live in separate malapportioned districts. Thus my complaint was not presented for any improper purpose but, to the contrary, was presented for a lawful purpose.”
Additionally, Lindsey said he took offense at Kendall’s assertion that he “received court awarded attorney’s fees in a ‘manufactured lawsuit. The lawsuit was not ‘manufactured’ but was filed to correct a problem with malapportionment in my county of residence.”
In the meantime, Bennett isn’t taking any of the allegations lying down either, insisting that he and Lindsey didn’t ‘collude’ to do anything.
In his own deposition to the court, Bennett said “During a conversation with Richard Lindsey after learning the legislature would not take up a plan, I mentioned to him that the county had a problem with its malapportioned redistricting plan. Mr. Lindsey then decided to sue the county to remedy the malapportioned districts. I never asked Mr. Lindsey to sue the county nor did I ever tell anyone that I had asked him to do so.”
According to Bennett, on May 16, he met with Anne Lewis and Bryan Tyson, from Strickland Brockington Lewis, the firm representing the county in the NAACP suit, and said he was informed that, the previous evening in a meeting with Wayne Kendall and Ryan Haygood (the Washington-based attorney for the NAACP’s side of the suit), Mr. Kendall, with Mr. Haygood present, threatened Frank Strickland and Mr. Tyson with intervention in this case and claims of Rule 11 violations and bar complaints if they did not settle the NAACP v. Fayette County litigation on terms Mr. Kendall proposed.
“Ms. Lewis and Mr. Tyson informed me that Mr. Kendall asserted that I had colluded with Mr. Lindsey, the attorney who sued the County in this case, which was completely untrue.”
At a secondary meeting with Kendall, Haygood, Leah Aden (another attorney for the Plaintiffs in NAACP v. Fayette County), Lewis, and Tyson, Lewis asked Kendall to repeat what his threat.
“Mr. Kendall then stated that unless the Board of Commissioners agreed to settle NAACP v. Fayette County on the terms he proposed, he would seek to intervene in the Lindsey litigation and file motions for Rule 11 sanctions against every attorney who signed a pleading in that case and against me for my “collusion” in the filing of the Lindsey litigation.
“When Ms. Lewis asked Mr. Kendall what terms he was proposing. Mr. Kendall stated that he wanted to “expose all of this.” Mr. Kendall proposed that NAACP v. Fayette County be settled and we could “forget all of this” regarding the Lindsey litigation. I then spoke directly to Mr. Kendall. I emphatically and specifically denied Mr. Kendall’s allegations of collusion and violations of Rule 11.
“I further stated that, based on what Mr. Kendall said to me, Mr. Kendall had threatened me with a bar complaint and action against my license to practice law if I did not persuade my clients to take a particular course of action. I viewed that as bribery, told Mr. Kendall that, and then left the room. I saw no reason to continue the conversation. Several days later, I received the letter Mr. Kendall attached as Exhibit C to the Motion to Intervene in this case. I remained in close contact with Ms. Lewis about the issues, but felt no response was necessary as I had already addressed the issues with Mr. Kendall in person on May 16.”
In the back-up documentation, both Strickland and Lewis signed sworn statements supporting the happenings at the meeting.
According to Bennett, “when confronted with the unethical and unprofessional nature of their “offer,” Haygood was ‘reluctant’ to express his agreement with Mr. Kendall’s threats, saying he wanted to focus on settlement.
“Ms. Lewis asked Mr. Haygood several days later whether his employer, the NAACP Legal Defense Fund, was in agreement with the threats that had been made. Mr. Haygood indicated he considered the matter resolved and nothing further needed to be addressed, although he did hope still to settle the case.
“However, on May 19, 2012, Ms. Lewis received a letter from Mr. Kendall, reiterating his threats. After multiple communications between counsel for County Defendants and Mr. Haygood regarding whether the NAACP-LDF agreed or disagreed with Mr. Kendall’s tactics, Mr. Haygood finally advised Ms. Lewis near the first of August that there would soon be a “significant development in the local counsel situation.”
Within days of that conversation, on August 6, according to Bennett’s statement, the Intervenors filed a motion to withdraw as Plaintiffs in NAACP v. Fayette County suit, but the next day withdrew that motion. Then on August 8, Kendall withdrew as counsel for Plaintiffs in NAACP v. Fayette County.
Kendall said he withdrew from that suit in order to pursue the motion to intervene.
Approximately two weeks later, said Bennett, Kendall, representing the two Proposed Intervenors, made good on his threats and filed the present motion to intervene, “apparently without the support of any of his former co-counsel or any of the other Plaintiffs in NAACP v. Fayette County.”
In the motion, “Proposed Intervenors attempt to manufacture facts which (1) do not exist, (2) their attorney knows do not exist and (3) even if they existed, do nothing to advance Proposed Intervenors’ motion.
“First, Proposed Intervenors wrongly claim that two county commissioners “testified under oath” Fayette County Attorney Scott Bennett, “contacted Attorney Lindsey for the purpose of soliciting him to sue Fayette County.
“The portions of transcripts quoted both clearly indicate that neither commissioner was a party to or had any personal knowledge of any conversations between Mr. Lindsey and Mr. Bennett.
“Second, Proposed Intervenors’ attorney has been advised on at least two occasions that the facts as he imagines them are not correct. In his response to Mr. Kendall’s letter, Mr. Lindsey – who was party to that conversation – completely rebuts that allegation. Mr. Bennett also denied such allegations when Mr. Kendall made them during the May 16 meeting.”