By Pat Cooper
On Wednesday, U.S. District Court Judge Timothy C. Batten, Sr. handed down a sanction to a Fayette County attorney as a result of ongoing litigation between Fayette County and the National Association for the Advancement of Colored People.
In September, attorney Wayne Kendall charged that then-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.
On March 15, 2012, Lindsey filed an action in which he sought (1) a declaration that the Fayette County Board of Commissioners districts were unconstitutional and (2) implementation by the court of a constitutional redistricting plan to be used in the primary and general elections to be held later in 2012. On March 26, the parties filed a consent motion to approve the consent judgment and for entry of final judgment. The next day, a consent decree was entered, which detailed the new redistricting plan for the county commissioners. The case was closed that day.
On August 27, 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, Federal Rule of Civil Procedure 24, on behalf of his clients Aisha and Ali Abdur-Rahman, asking for Batten’s decision to be vacated, citing “there is no indication that the Defendants were ever served with the complaint and a summons.”
On September 10, the county filed a motion to strike the Abdur-Rahmans’ motions to dismiss on the grounds that the motions should have been attached to the motion to intervene and not separately docketed unless and until the motion to intervene was granted.
On September 12, the court entered an order that stayed consideration of the motions to dismiss pending resolution of the Abdur-Rahmans’ motion to intervene.
On October 9, the court issued an order denying the Abdur-Rahmans’ motion to intervene and the motions to dismiss. The order also stated that the Abdur-Rahmans’ motion to intervene and motions to dismiss strongly suggested that Kendall had violated a judicial rule by presenting his clients’ motions in order to harass the parties in this case, presenting legal contentions that were not supported by existing law or nonfrivolous argument, and “relying on factual contentions that did not have evidentiary support.”
Batten added the court was inclined to sanction them and their counsel by requiring them to pay the their opponents costs in responding to motions. First, however, Batten wanted Kendall to provide, in writing, an explanation of why it wasn’t a violation and why the court shouldn’t impose sanctions and gave him until November 6 to file the appropriate briefs.
On October 17, the court received a letter from Kendall in which he requested an extension of time to file a response to the show-cause order. In his letter, Kendall stated that he did not understand what the court considered sanctionable and he asked for both a clarification and an extension of his deadline. On October 19, the court denied Kendall’s request for clarification and an extension.
On October 24, one day after the court’s deadline, Kendall filed a brief in response to the show-cause order.
“At the time of filing, Kendall did not explain why his brief was late or seek permission from the court to file it out-of-time.”
According to the order, filed by the appeals court on February 13, exercising the power to sanction an attorney is not something the court takes lightly or does frequently.
“However, the court finds that Kendall’s behavior must be addressed, as he has repeatedly flouted this court’s local rules, the Federal Rules of Civil Procedure, and binding case law, and tried to hide his egregious behavior behind hundreds of pages of largely frivolous and irrelevant filings—for the sole purpose for harassing the parties.
“Kendall filed a motion to intervene in a case in which judgment was entered months before, and he has wholly failed to provide a reasonable explanation for the delay. In addition, his brief in support of the motion to intervene was almost 50 pages—well over the page limit prescribed in the local rules—and contains argument and facts that are largely irrelevant to evaluating a motion to intervene.
“Also, Kendall impermissibly docketed two motions to dismiss even though his clients had not been granted leave to intervene. Kendall has not explained why he filed these motions separately.”
Additionally the court said it found Kendall’s accusations against the court disingenuous, since he accused the court of imposing sanctions simply because he and his clients “delivered a message pointing out the numerous errors of the court”; (2) it was “professionally embarrassing to learn that the court had entered an order changing the method of election for tens of thousands of voters”; and (3) because the court did not like their message it has assumed “the role of prosecutor, judge and jury punish the messenger without any prior indication that it was inclined to do so, prior to issuing a ruling on the merits of the actions.”
The court’s order noted that Kendall had violated the rules when he presented his clients’ motions to harass the parties in this case, presenting legal contentions that were not supported by existing law or nonfrivolous argument, and relying on factual contentions that did not have evidentiary support.
According to the order, “The strongest evidence that Kendall’s motions were filed in bad faith and with the intent to harass the parties is the fact that Kendall disparages and insults the parties, counsel and the court throughout his briefs and the declarations filed. Indeed, his accusations are scurrilous and unnecessary.”
Batten, in his statement, continued by noting that Kendall filed almost identical declarations of his clients and three other citizens of Fayette County containing statements that “(1) contain facts they are unlikely to have personal knowledge of, (2) are actually conclusory argument, and (3) are pure speculation. For example, the individuals each declare that an attorney for Defendants “mentions that she received a letter from Mr. Kendall making ‘threats’ concerning intervention in this case but she never mentions having spoken to, or attempting to speak to Mr. Kendall, the alleged source of the ‘threats.’
“First, this is not a statement of fact; second, the declarants have no personal knowledge of what defense counsel did; and third, this statement is pure speculation. So, Kendall filed five declarations that are largely improper, irrelevant, and cited to only once in the reply brief.”
More than that, Batten said, further proof that Kendall’s main goal was to harass the parties is the fact that the day the court denied the motion to intervene, Kendall filed on behalf of other clients an ethics complaint against Bennett, whom, Kendall contends in filings before this Court, colluded with Lindsey to file this fraudulent lawsuit.”
Batten noted that those motions, as well as the fact that the intervenors - again represented by Kendall- have sued the Fayette County administrator, the board of commissioners, and Bennett in the Superior Court of Fayette County and the motions filed in this case were part of a larger effort by Kendall to disparage and harass defendants and their counsel.
Batten’s order said it deemed that Kendall’s improper conduct was willful, that it reflected a pattern of activity infecting almost every document he filed - a total of over 300 pages- that his conduct was intended to injure the defendant, counsel and the court and caused the court to use its limited resources to address his behavior.
“The court finds particularly offensive Kendall’s repeated use of inflammatory and baseless accusations against the court, parties and counsel. Kendall’s behavior has been reprehensible, and he continued to engage in that behavior despite this court’s order putting him on notice that his conduct was sanctionable. The court should not be abused in such a way by future litigants, suggesting the sanction must be strong enough to accomplish this.”
Ultimately, the court levied a $5,000 fine against Kendall that has to be paid before February 28. However, the court said that only Kendall should be sanctioned, not his clients, “even though it appears that they have allowed Kendall to use them as pawns in his game to harass the parties in this case, particularly Defendants.”
For his part, Bennett merely said he felt ‘vindicated by the court’s finding. I hadn’t done anything wrong. The county hadn’t done anything wrong. This proves the court agrees with that.”