By Pat Cooper
On Tuesday, United States District Court Judge Timothy C. Batten, Sr. came down on the side of Fayette County after allegations of collusion began to haunt the county offices.
Last month, attorney Wayne Kendall charged that county attorney Scott Bennett colluded with Peachtree City attorney Rick Lindsey to file a lawsuit against the county which resulted in the final affirmation of the county’s five-district map.
Kendall accused 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.
The next day, the Court entered the consent decree, which detailed the new redistricting plan for the county commissioners. The case was closed that day.
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.”
On August 27, Kendall filed a motion to intervene under Federal Rule of Civil Procedure 24.
According to Batten’s order, “in order to establish standing, Intervenors must show that they have suffered an “injury in fact”—the invasion of a legally protected interest that is sufficiently concrete and particularized, rather than abstract and indefinite; (2) there is a causal connection between the alleged injury-in-fact and the conduct complained of, and (3) it is likely that the injury would be redressed by a favorable decision.
“Turning to the first element, Intervenors appear to have two theories of how they have suffered an injury in fact. Their first theory is that the consent decree was procured through fraud and collusion by the parties. However, despite all of their puffery and excessive verbiage on this topic, Intervenors’ bluster distills to an argument that there was never a case or controversy and thus the district court did not have jurisdiction over the original case and should not have approved the unlawful consent decree.”
Batten said “Intervenors have not shown a sufficiently particularized harm to satisfy the injury-in-fact requirement.”
On the second theory, Batten noted, “Intervenors’ second theory of harm is that the consent decree dilutes the number of county commissioner positions they can run for. While this might seem sufficient, Intervenors consistently describe this argument in ways that underscore the lack of particularized harm.
“...Intervenors have failed to state that they are running for office or plan to in the immediate future. Instead, they ambiguously assert, “Intervenors may consider running for office to the Fayette County Board of Commissioners” and refer generally to “a candidate’s (particularly an African-American) chances of election” and “their status as African Americans.
“Intervenors do not state that they are currently running for a county commissioner postion in the upcoming November election or that they will run in the immediate future. Consequently, they have not shown a prospective injury that is real, immediate and direct.
Finally, Intervenors make no attempt in their reply brief to directly respond to Lindsey’s and Defendants’ arguments about how they lack independent standing. Instead, they summarily state that they suffered “enhanced diminution in their ability to vote for and choose candidates of their choice . . . .” This argument is not even in their motion to intervene and cannot be raised for the first time in their reply brief.”
In sum, according to Batten’s order, they have failed to show they have suffered an injury.
Also, as residents of Fayette County, Intervenors were well aware that qualifying and primary elections began in late May. Yet inexplicably, Intervenors waited until late August to file their motion. Intervenors do not respond in their reply brief to the parties’ arguments that they have known about this case for several months and did not need three months to prepare their motion.
“Intervenors’ contention that their delay in filing their motion did not prejudice Defendants is equally meritless. In the time it took for Intervenors to “obtain counsel, explore legal options and file a motion to intervene,” Defendants held candidate qualifying, primaries, and primary runoffs under the redistricting plan approved in the consent decree. Defendants have also used the plan to prepare ballots for the upcoming general election so that absentee ballots can be distributed forty-five days before the November 6 election. Thus, the parties have suffered extreme prejudice as a result of Intervenors’ delay in bringing this motion, and Intervenors make no attempt in their reply brief to rebut Defendants’ prejudice arguments.
“Intervenors have failed to articulate the prejudice to them if their motion is denied and unusual circumstances justifying their delayed motion sufficient to outweigh the extreme prejudice to the parties if their motion is granted. With respect to prejudice they will suffer if their motion is denied, Intervenors claim that they “have no other possible procedural vehicle to attempt to persuade the courts that the Consent Decree should be vacated.” However, they have provided no case law that shows this argument is true or otherwise satisfies the third requirement. Further, any prejudice suffered by Intervenors is outweighed by the prejudice the parties would suffer if they were allowed to intervene.”
Batten also said, after reviewing the case, the motions to dismiss and motions to intervene “strongly suggest to this court that they have violated Rule 11 (b) by presenting their motions to harass the parties in this case, presenting legal contentions that are not supported by existing law or nonfrivolous argument, and relying on factual contentions that do not have evidentiary support.”
Batten added the court was included to sanction them and their counsel by requiring them to pay the their opponents costs in responding to motions. Before he does that, however, Batten wants Kendall to provide, in writing, how they haven’t violated the rule and why the court shouldn’t impose sanctions. He has until November 6 to file the appropriate briefs.