Litigation & Advocacy Docket
The following docket contains cases and significant non-litigation matters litigated or resolved by the ACLU of Georgia.
CHURCH & STATE
Suchdev v. Centers for Disease Control and Prevention
CDC Doctor Asked to Shave Beard & Remove Turban
A physician of the Sikh faith was denied the opportunity to work in the Public Health Commissioned Corporation of the Centers for Disease Control and Prevention (“CDC”) unless he shaved his beard and removed his turban. Because he refused to do this, he now works for the CDC as a civil employee with significantly fewer benefits and job growth opportunities.
The ACLU of Georgia sent a demand letter. Tied to our efforts, the CDC adopted a new policy to address religious accommodation that recognizes that “a basic principle of our Nation is the free exercise of religion.” It sets out an individualized process for requests for religious exemptions and creates a general presumption in favor of religious accommodation.
Pelphrey v. Cobb County, 410 F.Supp.2d 1324, 448 F. Supp. 2d 1357 (N.D. Ga. 2006)
Sectarian Prayers at Cobb County Public Meetings
In August of 2005, the ACLU of Georgia filed a lawsuit on behalf of five Cobb County residents who objected to the prayers given at Cobb County Commission & Planning Commission meetings because the vast majority of prayers included references to a specific religious denomination: most prayers were made in the name of Jesus. They sought a preliminary ruling that would have allowed the prayers to continue but halted the use of references to any specific religious denomination.
On Friday, January 13, 2006, Judge Story denied the motion for preliminary injunction, though he recognized that the ruling was in tension with the majority of courts that have ruled on the issue. The case proceeded through litigation. The Court ruled that prayers that frequently included references to Jesus were constitutional, but the process the Planning Commission utilized for choosing who would lead the prayers, was unconstitutional (some faith groups were totally barred from the prayer giver invitation list).
Complaint | Plaintiffs' Brief in Support of Motion for Summary Judgment | Plaintiffs' Brief Supporting Their Propsed Injunction and Issuance of Nominal Damages | Press Release | Westlaw Decision
Selman v. Cobb County School Board, 390 F.Supp.2d 1286 (N.D. Ga. 2006), vacated and remanded, 449 F.3d 1320 (11th Cir. 2006)
Evolution Disclaimer Challenged
The ACLU of Georgia filed a lawsuit over the evolution disclaimers the County School Board placed in their high school biology textbooks. The case challenged the disclaimer adopted by the School Board that stated “evolution is a theory, not a fact,” and that the theory should be “critically considered.” On November 8, 2005, the judge held a four-day trial.
On January 13, 2006, Judge Cooper ruled that although the School Board did have a secular purpose in providing the disclaimers, the stickers impermissibly endorsed religion. The stickers were then removed.
The Cobb County School Board appealed the case and the 11th Circuit ultimately sent the case back to the trial court for further review. Prior to the retrial, the parties settled the case. As a result, the stickers with the disclaimer will remain out of the textbooks and Cobb County agreed that in the future, stickers or other types of disclaimers would not be used teaching evolution.
Amicus Curiae Brief of 56 Science Organizations | Brief of Appellees | Amicus Curiae Brief of American Jewish Congress | Amicus Curiae Brief of states of Alabama and Texas | Amicus Curiae Brief of Americans United for Separation of Church and Sate, American Jewish Comittee and Anti-Defamation League | Amicus Curiae Brief of Clergy and Laity Network and the Witherspoon Society | Brief of the Appellants | Amicus Curiae Breif of Georgia Citizens for Integrity in Science Education | Amicus Curiae Brief of Herman Cummings | Amicus Curiae Brief of ISKCON of Atlanta, Inc. | Press Release | Amicus Curiae Breif of National Council of Jewish Women and the Interfaith Alliance | Amicus Curiae Brief of National Center for Science Education, People for the American Way | Signed Consent Order | Amicus Curiae Brief of the National Sceince Teach Association and the National Association of Biology | Westlaw Decision
Budlong v. Graham, 414 F.Supp.2d 1222 (N.D. Ga. 2006)
Bible Tax Exemption Struck Down
The ACLU of Georgia filed a lawsuit on behalf of a citizen and bookstore owner who challenged two provisions of Georgia law that exempted certain religious texts from sales and use taxes. One provision grants an exemption to “Holy Bibles, testaments, and similar books commonly recognized as Holy Scripture.” This provision is commonly applied to Christian and Jewish texts, but not to other religions, such as Hindu sacred texts. The second provision exempts certain religious texts from sales tax only if they are sold by religious institutions.
In this case, the plaintiffs challenged these provisions as violations of the Free Speech and Establishment Clauses of the United States and Georgia Constitutions. A federal judge granted a preliminary injunction barring the enforcement of the tax exemptions because the statutes unconstitutionally give “unique and preferential treatment” to religious texts and impermissibly favor certain speech based upon its content.
Complaint | Press Release: June 2005 | Press Release: May 2007 | Plaintiffs Brief for motion for a Preliminary Injunction | Plaintiffs Brief for motion for Summary Judgment | Westlaw - Decision
Tabernacle Baptist Church v. East Point, 1:06-CV-00936-JOF (N.D. Ga. 2006)
Baptist Church Denied Zoning Variance
A small Baptist church interested in buying a building in East Point was denied a permit by the zoning board. The building, previously used as office space and a daycare center, is zoned as commercial property. Under the zoning code, churches and other places of worship are allowed in the area, however, a church may not occupy a building previously used as commercial space.
Because the church planned to occupy the existing building rather than tear it down and build a new one, its permit application was denied. The church believes this provision in East Point's zoning code violates its free exercise of religion.
The ACLU of Georgia filed a complaint on April 19, 2006 that asserted violations of the United States and Georgia constitutions and the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”). The city of East Point has since repealed the ordinance and churches are now allowed to occupy buildings that were previously used for commercial purposes.
Georgia Kosher Laws Unconstitutional
State Endorsement Of One Particular Set Of Beliefs Violates Religious FreedomAugust 6, 2009
ATLANTA – The American Civil Liberties Union and the ACLU of Georgia today filed a lawsuit challenging the constitutionality of the Kosher Food Labeling Act. The challenged statute mandates that any food sold in the state of Georgia as kosher must be kosher in accordance with “orthodox Hebrew religious rules and requirements,” and officially delegitimizes different interpretations of kosher adhered to in other Jewish communities.
The lawsuit was filed in Fulton County Superior Court on behalf of Shalom Lewis, rabbi of Congregation Etz Chaim in Cobb County who, as a Conservative Jew, is unable to fulfill his rabbinical duties because his theological interpretation of kosher differs from that of Orthodox Judaism.
“I don’t want to have to choose between abiding by state law and practicing my religion according to my beliefs.” Lewis said. “It is unfortunate that non-Orthodox rabbis in Georgia must make the moral and ethical decision to risk legal prosecution in order to fulfill their rabbinical duties. The two should not be incompatible in America, where everyone’s religious beliefs are to be respected.”
One of the most vital services that Lewis provides to his congregants as their rabbi is serving as their mashgiach, the Hebrew term for a person who supervises any type of food service establishment – including restaurants and grocery stores – to ensure that food is acceptably kosher. But because Lewis cannot certify the preparation of food in accordance with orthodox Hebrew requirements, he is prohibited by law from serving as the mashgiach of any kosher food operation – a reality that jeopardizes his ability to fulfill his calling as a duly ordained rabbi of the Jewish faith and impairing his religious freedom.
If Lewis were to violate the state’s Kosher Laws as his duties require him to do, he fears that the laws would be enforced against him, damaging his reputation and subjecting him, his congregation, and others to criminal charges and fines.
“Having the state choose which Rabbis are ‘legitimate’ and which are not puts many Rabbis in a precarious position,” said Debbie Seagraves, Executive Director of the ACLU of Georgia. “Congregations rely on their Rabbis to provide the kind of religious guidance that this state law prohibits them from providing, unless they are Orthodox. The State of Georgia should not hold the power to define who is ‘official’ Jewish clergy. That is clearly a matter of faith, not the proper role of government.
According to the ACLU’s lawsuit, the Kosher Food Labeling Act violates the religious liberty guarantees of both the U.S. and Georgia Constitutions by endorsing only “orthodox Hebrew religious rules and requirements” and criminalizing the beliefs and practices of the many people across the state and nation who, while seeking kosher products, subscribe to interpretations of kosher that differ from those of orthodox Jews.
“The challenged laws violate the fundamental pillars of religious liberty, endorsing one particular set of beliefs and impeding the free religious exercise of those who believe differently,” said Daniel Mach, Litigation Director for the ACLU Program on Freedom of Religion and Belief. “The government should never take sides in theological debates.”
Joining the ACLU of Georgia and the national ACLU Program on Freedom of Religion and Belief as co-counsel for Rabbi Lewis are attorneys at the Atlanta law firm King & Spalding LLP
DEATH PENALTY
FREE EXPRESSION
Berryhill v. Georgia Community Support, 281 Ga. 439, 638 S.E.2d 278 (2006)
Amicus Filed in Georgia Supreme Court on SLAPP Law
The mother of a disabled child complained to the Department of Human Resources, posted to the web, and contacted the Atlanta Journal Constitution with allegations that her son was being mistreated by a non-profit organization that was supposed to be helping him. The non-profit organization, in turn, filed a defamation lawsuit against the mother.
The trial court found that the lawsuit was a SLAPP (“Strategic Lawsuits Against Public Policy”). The anti-SLAPP statute is designed to protect citizens victimized by chilling lawsuits aimed at silencing their speech.
The Court of Appeals reversed the trial court decision and the Georgia Supreme Court (by a 4-3 vote) affirmed. The Supreme Court found that the anti-SLAPP statute did not protect the mother because she did not make her statements in an official proceeding and “nothing in her statements can be construed as a request for any official investigation or proceeding.” The dissenters believed that “public policy is not advanced by placing rigid restrictions on the scope of the [anti-SLAPP law] so that only statements made directly in the course of an official proceeding or statements expressed skillfully enough and directed accurately enough that an appellate court cannot ignore their intent are within the protection of the statute.” They found that citizens “lost the protection intended by the General Assembly” and that the “citizens of Georgia are poorer for that loss.”
Amicus Brief from ACLU, Georgia First Amendment Foundation and ATL Press Club
Tanner Advertising, L.L.C. v. Fayette County, 451 F.3d 777 (11th Cir. 2006)
ACLU of Georgia in Favor of Overbreadth Rules to Protect and Preserve Free Speech
In this case, the Plaintiff challenged many provisions of a sign ordinance, even though he was not affected by each provision he challenged. In this type of case, the plaintiff is traditionally allowed to argue that although all parts of the statute do not negatively impact him directly, the government’s power as defined by the statute may have adverse consequences for third parties who are not currently before the court. Because protecting free speech is of utmost importance, a plaintiff has standing to bring his claims as well as the claims of others in order to prevent the chilling of any speech. This is called overbreadth standing.
The trial court held that the plaintiff lacked standing. But, a panel of the 11th Circuit upheld the Plaintiff’s overbreadth standing. Then, the entire 11th Circuit agreed to rehear the case (in a rehearing en banc) to determine whether the doctrine of overbreath standing actually exists.
The ACLU of Georgia drafted and submitted an amicus curiae brief on behalf of the ACLU of Georgia, ACLU of Florida, and ACLU of Alabama for the rehearing. We argued in support of the overbreadth standing rules and stated that the purpose of being allowed to argue overbroad free speech claims on behalf of non-parties is to protect and preserve the aims of the First Amendment.
Unfortunately, the court ultimately did not resolve this controversy. In order to have overbreadth standing, the Plaintiff only needs to have standing for one claim. Here, the statute had been drastically amended during the suit and, by the time of the rehearing, the Plaintiff lacked standing to challenge any of the provisions. Without standing for even one claim, the Plaintiff could not bring the suit.
Maher & Green v. Avondale Estates, 1:00-CV-1847-JEC (N.D. Ga. 2007)
Repeated Changes in Ordinance Require Good Faith Effort
The ACLU of Georgia has been involved in litigation with Avondale Estates for the past five years. The lawsuit concerned an Avondale Estates sign ordinance that banned all signs (political signs, yard signs, and real estate signs). Over the past five years, Avondale Estates has repeatedly revised the ordinance just prior to court rulings and without negotiating with the ACLU of Georgia. This has dramatically prolonged litigation and has created a "moving target" by attempting to resolve constitutional problems without the guidance of the Court or the insight of the ACLU of Georgia.
Ultimately, the Court struck down some of the sign ordinance provisions as unconstitutional. In addition, the Court has awarded the ACLU of Georgia $142,329 in attorneys fees and expenses. This ruling is significant because it analyzes and deals with the scenario where defendants may attempt to avoid fee liability by repeatedly and unilaterally changing ordinances.
Complaint | Plaintiffs Brief in Support Of Motion for Preliminary Injunction | Temporary Restraining Order Breif
Johnson v. Boggs, 3:05-CV-00036-JTC (N.D. Ga. 2005)
Parents Will Not Be Arrested Over Website Contents
Grandparents who were unhappy with their treatment by the Department of Family & Children Services (“DFCS”) developed a website in which DFCS employees were discussed. The DFCS employees who were discussed threatened to file lawsuits against the grandparents. They went to the local magistrate judge who issued an order requiring the grandparents to come to court to explain why an “Order of Arrest” should not be granted for “false and malicious statements against [the DFCS worker’s] family.” An Order to Arrest the author of the website was issued.
The ACLU of Georgia filed a lawsuit on behalf of the family and argued that the “Order of Arrest” is an unconstitutional prior restraint, because it chills a person’s speech before they even get a chance to utter a word.
In 2006, the parties ultimately reached an agreement that ensures the client will not be subjected to an order of arrest for his website in the future.
Complaint | Press Release | Plaintiffs Motion for Preliminary Injunction and Exhibits
Bender v. City of Atlanta, No. 1:040-CV-2754-JOF (N.D. Ga. 2005)
City of Atlanta Abolishes Permit Requirements for Murals
The City of Atlanta passed an anti-graffiti ordinance. The ordinance was so broad that it required property owners to obtain approval from three city government departments and the City Council in order to display a mural. Failure to follow these procedures would subject the property owner to a criminal penalty.
The ACLU of Georgia filed suit on behalf of a property owner who had paid famed artists to design and paint murals on their exterior walls.
The city agreed to revise the graffiti ordinance to eliminate punishment for property owners who have murals, and there is no longer a permit requirement for property owners. The ACLU of Georgia and the City of Atlanta have also reached agreement on attorneys fees in the amount of $9,000.
Spy Files Case
Pentagon Conducts Spying Operations in Numerous States, Including Georgia
This case was filed in conjunction with a case that is being managed by the National ACLU office. After it was revealed that the Pentagon conducted spying operations in Georgia, the ACLU of Georgia filed Freedom of Information Act (FOIA”) requests on behalf of several peace groups. These groups included the Georgia Peace and Justice Coalition and School of the Americas Watch. The ACLU of Georgia held a press conference and provided copies of a number of documents that have been gathered and concern federal, state, and local government spying on law-abiding citizens.
As a result of the FOIA requests, the ACLU has discovered that the Federal Bureau of Investigations (“FBI”) has monitored and infiltrated various political, environmental, anti-war, and faith-based groups.
This case is still being litigated. Updates and more information can be found at: http://www.aclu.org/safefree/spyfiles/
Atlanta Street Musician Ordinance
A former Plaintiff in another related case recently brought a new Atlanta city ordinance to our attention. The ordinance requires all street musicians to secure vending permits prior to any public performance and it forbids any person from making music on the streets (with or without a license or permit) because it might bring attention to some deformity or physical ailment of the person making the music, or to a person who accompanies the one making the music.
The street musician asked for the ACLU of Georgia to help challenge this ordinance. In February of 2006, the ACLU of Georgia sent a demand letter and the City of Atlanta has agreed to revoke the law.
Lawson v. City of Rome, 4:04-CV-0131-RLV (N.D. Ga. 2004)
Rome Protest Ordinance
On July 4th, supporters of two political parties who were attempting to obtain signatures for a petition to get their party candidates on the ballot were ejected from a crowded city park with a crowd of over 20,000 people. A Green Party representative who refused to leave was formally charged with violating the City of Rome Code 15-153, which states: "[i]t shall be unlawful for any person to engage in any activity within a recreation facility that could cause injury to other persons or interfere with the use and enjoyment of the recreation facility by other persons." The ACLU of Georgia submitted a letter asking that the charges be dropped and the ordinance be revised to meet constitutional requirements.
The City agreed to drop the charges and worked with the ACLU to revise the ordinance. But, because the changes were not satisfactory, a lawsuit proved necessary. The ACLU filed suit on behalf of the Green Party, the Libertarian Party, and the arrested campaign worker.
The City ultimately agreed to settle the case. The settlement agreement included the rewriting and adoption of a constitutionally sound ordinance and the city paid attorneys fees and damages of $12,500.
Welch v. Lord, 5:05-CV-399-WDO (M.D. Ga. 2006)
Police Remove Signs From Truck
The ACLU of Georgia reached a settlement agreement in this lawsuit on behalf of a citizen who had his political signs removed from his truck because it was parked in a public parking lot. The signs advocated voting against a sales tax referendum that was on the ballot.
The probate judge/elections superintendent removed the signs after receiving complaints from two supporters of the referendum. They cited a state election law that prohibits placing campaign signs on public property. The Plaintiffs’ signs were on his private property (his truck) that was located on public property (the parking lot).
As part of the settlement, Washington County officials agreed that they would not apply this law to campaign signs on automobiles that were legally parked or driving on public property.
Complaint | Press Release
Childs v. Dekalb County, No. 1:05-CV-02463-JTC (N.D. Ga. 2007)
Vegan Demonstrators Observed, Followed, & Arrested
Vegan demonstrators who held a demonstration at a Honeybaked Ham store were observed, photographed, harassed, and followed by a plain clothes Homeland Security officer who was driving in an unmarked vehicle. Two of the demonstrators wrote down the make, model, color and tag number of the unmarked automobile. After refusing to provide the piece of paper on which this information was recorded to the officer, the two protestors were arrested.
The piece of paper containing the information has not been recovered since the arrest.
The ACLU of Georgia filed a lawsuit in 2005 challenging the arrest.
Complaint | Press Release | Plaintiffs Brief for Summary Judgment | Plaintiffs Reply Brief for Motion for Summary Judgment
City of Statesboro v. Hood, Case No. 05002038 (S.D. Ga. 2006)
Everyone Needs a Permit in Statesboro
Dr. Hood has picketed in the City of Statesboro for the past sixteen years. In April of 2004, Statesboro enacted an ordinance requiring lone picketers to obtain a permit before picketing.
Although the Police Department informed Hood that he did not need a permit, Dr. Hood was arrested for picketing without a permit. Requiring a single picketer to obtain a permit is unconstitutional.
Ultimately, the city of Statesboro agreed to dismiss the charges against Dr. Hood. It paid attorneys fees and damages, and amended their parade and permitting ordinance.
Grier v. Dekalb County, 1:06-CV-02479-GET (N.D. Ga. 2007)
“BUSHIT” Bumper Sticker Leads to Traffic Citation
A woman was pulled over in DeKalb County and ticketed for having a bumper sticker with the following on it: “I am tired of all the BUSHIT.” She was ticketed for violating the “lewd bumper sticker law” even though that law had been struck down as unconstitutional by the Georgia Supreme Court. Ultimately, the DeKalb Recorders Court Chief Judge issued her a letter of dismissal.
The ACLU of Georgia filed a civil suit against the county on October 16, 2006 claiming the woman’s civil rights were violated because she was unlawfully detained and ticketed under an invalid law. Furthermore, the complaint charges DeKalb County with violating the woman’s free speech rights.
Atlanta Humane Society v. Harkins, 264 Ga. App. 356 (2003); 278 Ga. 451 (2004); on remand 273 Ga. App. 489 (2005)
ACLU of Georgia Defends Humane Society “Whistleblower”
The Humane Society sued a former employee/whistleblower for defamation seeking $250,000. The Atlanta Humane Society argued that the employee defamed them when she made statements to a television reporter that the Human Society made misleading claims and failed to engage in animal cruelty investigations.
The ACLU of Georgia defended the employee and moved to have the suit dismissed under the Georgia anti-SLAPP (“Strategic Lawsuits Against Public Policy”) law. The anti-SLAPP statute is designed to protect citizens victimized by lawsuits aimed at silencing their speech. The trial court denied the SLAPP motion but the Georgia Court of Appeals reversed this decision. The Georgia Supreme Court then heard the case and ordered the case dismissed.
The issue at stake was whether the anti SLAPP statute was satisfied when the Humane Society filed an affidavit claiming the lawsuit was brought in good faith and well grounded in law and fact, or if the court could look behind the affidavit to see if it was accurate. The Supreme Court held that the Courts do not have to take the affidavit at face value and after reviewing the facts and law in the case, dismissed the case against the employee.
The ACLU of Georgia then sought $150,000 in attorneys fees and expenses, and in January of 2006, the trial court awarded us $75,000. Though this was less than the ACLU hoped to receive, it is the most any Court has ever awarded in a SLAPP case in Georgia.
Complaint | Appellate Brief | Summary Judgement Brief | Decision
Smith v. Wal-Mart, 1:06-CV-00526-TCB (N.D. Ga. 2007)
Wal-Mart Attempts to Stop “Walocaust” Items From Being Created
Smith, a Wal-Mart critic, created t-shirts and mugs with the word “Walocaust” on them. Wal-Mart asked Smith to cease creating these items and argued that it was a violation of its trademark right.
The ACLU of Georgia filed a lawsuit on Smith’s behalf and asked the court to clarify that Smith has a right to make these items. In response, Wal-Mart countersued Smith and asked the court to ban Smith from making anymore “Walocaust” items. Included in Wal-Mart’s countersuit was a request for damages that they claimed were necessary due to the diminished reputation Wal-Mart alleged it suffered from Smith’s items.
We subsequently filed a SLAPP (“Strategic Lawsuits Against Public Policy”) Motion in response to Wal-Mart’s countersuit to ensure that it was not utilizing this counterclaim as a way of making the lawsuit more costly or as a mechanism for intimidating the Plaintiff from carrying out his lawsuit.
Complaint | Plaintiffs Brief in Support of Smith's Motion for Summary Judgment | Westlaw Decision
Marks v. City of Jonesboro, 1:06-CV-01904-CC (N.D. Ga. 2006)
Fortuneteller Not Allowed to Charge for Services
In August of 2006, a woman who wanted to open a fortune telling business filed for a business license with the City of Jonesboro. The City informed her that a local ordinance banned fortune telling and similar businesses. The woman was permitted to open her business as long as she did not charge her customers money or accept donations for her fortune telling services.
The city ordinance, in effect, amounted to a ban on fortune telling and similar businesses because individuals could not charge for their services.
After the ACLU of Georgia filed suit and a hearing was held on the merits, the parties entered into a settlement agreement that called for (1) a repeal of both city and county fortune telling ordinances; (2) assurance that a business license would be issued to our client; and (3) damages and fees.
GAY & LESBIAN RIGHTS
PRIDE v. White County Schools, 2006 WL
1991990 (N.D. Ga. 2006)
School System Claims It Eliminated All Student Groups When GLBT
Student Group Tries to Form
In 2005, a group of students who were victims or friends of victims of anti-gay harassment in White County attempted to form a student support group named Peers Rising in Diverse Education (“PRIDE”). White County schools refused to allow the group to form. Subsequently, the ACLU of Georgia threatened the school with a lawsuit, as once the school opens the door to any one extra-curricular club, the Equal Access Act requires recognition of all extra-curricular clubs. In response, the school system claimed it eliminated all extra-curricular student groups. Some favored groups, however, were allowed to continue to utilize school facilities.
The ACLU of Georgia filed a lawsuit on behalf of PRIDE and White County students and parents. The lawsuit claimed that White County was violating the Equal Access Act (which requires that all student clubs be treated equally), Title IX (an act that prevents harassment in schools), and other free speech laws.
In June of 2006, the ACLU of Georgia filed a Preliminary Injunction Motion which asked the Court to prevent White County from continuing their new policy until the trial occurred.
In July of 2006, the judge found that the school did in fact, violate the Equal Access Act. To avoid a costly appeal, the ACLU of Georgia and White County then entered into settlement negotiations and the matter has been favorably resolved.
The settlement agreement includes the following: (1) White County agreed to revise their policies to protect gay, lesbian, bisexual and transgender (“GLBT”) students from harassment; (2) White County agreed to make the dress code less arbitrary; (3) White County would no longer require PRIDE students to get parental permission to be a part of the club; (4) the school would receive three years of teacher training to make schools safe for GLBT students; and (5) White County would pay $10,000 in damages and $168,000 in attorneys fees.
Complaint | Press Release | Westlaw Decision | Plaintiffs' Brief in support of Motion for Preliminar Injuctive Relief
Purdue v. O’Kelly, 280 Ga. 732 (2006)
O’Kelly v. Cox, 278 Ga. 572 (Ga. S. Ct.
2004)
Anti-Gay Amendment
The ACLU of Georgia, flanked by Alston & Bird and Lambda Legal, filed a lawsuit that challenged the proposed Georgia constitutional amendment that would outlaw any legal recognition of same-sex unions. The ACLU of Georgia argued that the ballot language unconstitutionally violated the single-subject rule which requires single votes to decide single issues. Instead, the Georgia constitutional amendment asked voters to decide four issues: (1) marriage access; (2) availability and recognition of civil unions; (3) court jurisdiction, and (4) full faith and credit issues with one single vote. We also alleged that this language was affirmatively misleading as the ballot excised more than 100 words and any mention of civil unions. This was a blatant attempt to influence the results.
The trial court relied on a 1920's case and found that the lawsuit was premature and that in order to bring the challenge, the vote would have to occur first.
The Georgia Supreme Court granted our request for an expedited review and heard arguments on October 19, 2004. The Supreme Court also considered amicus briefs, such as the amicus curiae brief filed on behalf of 52 Georgia law professors that was drafted and organized by Scott Titshaw at Arnall, Golden & Gregory. In the end, the Georgia Supreme Court also ruled that the lawsuit was premature.
The day after the vote was certified, we re-filed the case and oral arguments were heard in January of 2005. On May 16, 2005, Judge Russell ruled that the Georgia Constitutional amendment that denied legal recognition to same-sex couples did indeed violate the single-subject rule because it forced Georgia voters to vote on two separate legal questions (same-sex marriage and other legal protections for same-sex couples) in one instance.
Unfortunately, the Georgia Supreme Court reversed Judge Russell’s decision in a unanimous decision. The Georgia Supreme Court stated that banning same-sex marriages and banning same-sex unions that provide the benefits of marriage were not so disconnected as to violate the single subject rule.
Complaint | Westlaw Decision O'Kelly V. Cox | Westlaw Decision Perdue V. O'Kelly | Press Release | Brief of the Appellant | Amicus Curiae Brief of the Apellee by Senator David Adelman | Amicus Curiae Brief of Georgia Law Professors | Plaintiffs' Brief in Support of Motion for a Permanent Injunction | Brief in Support of Plaintiffs' Motion for Judgment on the Pleadings | Brief for Appelles
Lesbian Adoption and Custody Thwarted
We represent a lesbian woman in two proceedings asserting that she is wrongfully being denied custody of a child. The biological mother of the child realized that her daughter needed a better home, and signed paperwork to shift custody and to ultimately permit the adoption of her child by a stable and loving friend (who was a lesbian). A Wilkinson County judge granted custody, but another judge denied the adoption because she "was co-habitating in a homosexual relationship." That judge ordered that the child be returned to the biological mother. Our client brought the girl to the biological mother, but realizing that she could not provide a good home, the biological mother signed documents again consenting to change in physical custody.
In the meantime, Wilkinson County DFACS took custody. Then, our client obtained an order from a Bibb County judge finding that change in circumstance warranted a shift in custody because our client "is the only party in this case (and tragically, likely the only person in the world) who can provide the [child] with the one-on-one attention, love and affection that every child deserves and that will also be required in order to have any hope of overcoming the child’s abandonment issues." After that ruling, the Wilkinson County judge held our client and her lawyer in contempt.
We have now filed a habeas corpus petition in Wilkinson County, asserting that our client has legal custody, and we are also involved in juvenile proceeding. All judges in Wilkinson County have recused themselves in the habeas proceeding. We have now had hearings in two weeks in two courts, and have undertaken representation in the contempt proceedings as well.
MISCELLANEOUS
Scott v. Harris, 2007 WL 1237851 (U.S.
S. Ct. 2007)
Supreme Court reviews Potentially Deadly Police Car Ramming Case
The Supreme Court reviewed this case involving a high speed chase, in which the pursuing officer rammed the fleeing vehicle from behind, sending it down an embankment and rendering the driver a quadriplegic.
The District Court and Eleventh Circuit both held that there were genuine issues of material fact as to whether the ramming was an unreasonable seizure in violation of clearly established law under the Fourth Amendment, thus precluding qualified immunity at the summary judgment phase.
We filed an amicus brief in the Supreme Court arguing that the lower courts were correct and that the Supreme Court should decline jurisdiction under its prior precedents. We also conducted moot courts to prepare for the argument. The Supreme Court heard arguments in the case on February 26, 2007. In an 8-1 decision, the Supreme Court reversed the lower courts. Justice Scalia focused on and interpreted a police video to suggest “a Hollywood-style car chase of the most frightening sort, placing police officers and innocent bystanders at great risk of serious injury.” The majority was so swayed by their interpretation of the video that they concluded that “no reasonable jury could have believed ... that excessive force was applied.”
Westlaw Decision | Brief for Petitioner | Amicus Curiae Brief of ACLU supporting Respondent | Brief for Respondent
United States v. Ahmed, 1:06-CR-147-CC
(N.D. Ga. 2007)
Courtrooms Closed Despite There Being No Confidential Information
in Evidence
Government prosecutors tried to close pretrial proceedings involving students at the Georgia Institute of Technology and the Classified Information Procedures Act (“CIPA”) even though they did not involve any confidential information. The Atlanta Journal Constitution, the Associated Press, CNN and other media outlets have intervened in the case and argued that the public has a right to view these proceedings. In making this argument, the media relied on similar decisions (for example, the Moussaoui trial) where the public was able to gain access to Court proceedings.
Given the ACLU of Georgia stands on different footing than the media, we were asked to join the case. The federal magistrate judge allowed the first hearing to be opened, but a protective order has been sought to close future proceedings. We drafted and filed a brief, which the Georgia First Amendment Foundation joined, challenging the closing of future proceedings.
The Court denied the Protective Order on the same day that we filed our brief. The government then sought a second proposed protective order. We submitted another brief in opposition to their second motion and in it we argued that the order did not strike the appropriate balance between having open proceedings and protecting confidential information.
Amicus Curiae Brief By ACLU and Georgia First Amendment Foundation
Fort v. Unterman, 1:06-CV-00319 (N.D.
Ga. 2006)
Georgia Senate Ethics Rule Gags Complainants
The 2005 Rules for the Senate included a confidentiality provision regarding ethics complaints. Specifically, “[a]ny complaint brought by or before the Committee shall remain confidential until the Committee has determined that substantial cause exists that a violation occurred. If the Committee determines that substantial cause does not exist that a violation occurred, the complaint shall remain confidential.”
Courts routinely find that gag rules barring disclosure of complaints to the public is an unconstitutional practice.
The ACLU of Georgia filed a lawsuit on behalf of a state senator and an ethics watchdog. The lawsuit challenged the constitutionality of this gag rule and challenged it as an unconstitutional prior restraint (it gags a person before they even speak) that places ethics under a shroud of secrecy.
The ACLU of Georgia and the Defendants entered into settlement negotiations and were able to reach a favorable outcome. Specifically, the parties jointly agreed that the gag rule would not apply to citizens filing ethics complaints except while the investigation was taking place.
Complaint | Press Release - Ethics | Plaintiffs' Brief in Support of Motion for Preliminary Injunction
Goodman v. Georgia, 544 U.S. 1031 (2005)
Supreme Court Unanimously Agrees that Prisoner Can Pursue Damages
Claim Against State
A paraplegic state prisoner appealed the dismissal of his claims under the Americans with Disabilities Act (“ADA”). The ACLU of Georgia filed an amicus curiae brief with the U.S. Supreme Court and argued that Title II of the ADA, as applied to prisoners with disabilities, permissively enforce the rights protected by the Constitution, including the 14th and 5th Amendments.
The Supreme Court agreed and held that in situations where disabled inmates bring private causes of action for damages against the state, Title II of the ADA does not allow these violations of the ADA to be shielded from enforcement due to a state’s claim of sovereign immunity.
The effect of this decision is that an inmate with a disability protected by the ADA can now safely sue a state for violations of the ADA without concern that a state might try to avoid liability by claiming immunity.
POVERTY
PRISONS
Whitaker v. Perdue, 4:06-CV-00140-WCO
(N.D. Ga. 2007)
All Sex-Offenders in Georgia Face Extremely Limited Living Options
Along with the Southern Center for Human Rights, the ACLU of Georgia filed a class action suit challenging provisions of the new sex offender law that prevent sex offenders from living and working within one-thousand feet of school bus stops and churches. Our clients are low-level sex offenders who committed their crimes when they were young (often statutory / consensual sex acts with a person a few years younger), but the law does not distinguish between low-level and high-level sex offenders, nor does it allow them to seek an exemption. The new law would automatically expose persons to felony prosecution and force nearly all sex offenders out of their homes. The new law would also undercut church efforts to reform sex offenders.
Judge Cooper granted a restraining order against the enforcement of the bus stop portion of the law and scheduled further hearings. He then focused on whether or not “bus stops,” as defined in the statute, meant places where school buses actually stopped to pick up schoolchildren, or places formally designated as bus stops by the respective school board.
The Court ruled that “bus stops” must be designated and since no school board had yet designated any bus stops, the Court denied the Motion for Preliminary Injunction.
Three counties have now designated their “bus stops” and we obtained consent orders that bar them from enforcing the law until further order of the Court.
We filed another motion for preliminary injunction challenging the residency restrictions barring a home within one-thousand feet of a church. This was filed on behalf of nine elderly and sick sex offenders who mostly live in nursing homes. Each of the respective counties has allowed these sex offenders to remain in their nursing homes.
Recently, Judge Cooper dismissed some of the Plaintiffs’ claims, but permitted the key portions of the Plaintiffs’ case to move forward on certain challenges, including challenges to the following constitutional provisions: (1) Article 1, § 10 of the Georgia Constitution, which provides that states cannot pass laws that increase punishments for criminal acts after they have been committed ; (2) the Fourteenth Amendment to the United States Constitution, which protects certain fundamental rights from being infringed upon; and (3) the Free Exercise Clause of the United States Constitution, which protects religious beliefs and religious practices (the new sex offender law infringes upon this right because it limits the abilities of churches to provide services to sex offenders, and it serves to direct the religious practices of sex offenders by limiting their abilities to practice religion).
Complaint | Brief in Support of Motion for Preliminary Injunction | Several Different Orders
Delong v. Dooly County, 5:05-CV-51-WDO-CWH
(M.D. Ga. 2006)
Inmates Unlawfully Restrained & Exposed to Natural Elements
The ACLU of Georgia took this case on behalf of inmates and pretrial detainees who were repeatedly placed in a restraint chair that prevented all bodily movement except for the neck. The chair was often placed outside and the inmates and detainees were exposed to harsh, natural elements. In one case, an inmate was left in the restraint chair for five hours and ended up defecating on himself. Another inmate was pepper sprayed while in the chair.
The United States Supreme Court has established that restraints should not be used to impose “wanton and unnecessary pain,” and has also said that restraints should not be used once a prisoner has been subdued.
As a result of the ACLU of Georgia’s efforts, both parties came to an agreement that includes (1) the hiring of a prison expert who will create lawful restraint policies for the jail, and (2) payment of Plaintiffs’ expenses and attorneys fees in the amount of $4,500.
RACE & NATIONAL ORIGIN
Stewart v. Cherokee County, 1:07-CV-0015-TCB
(N.D. Ga. 2007)
Cherokee Criminalizes Housing for “Illegal Aliens”
A Cherokee County ordinance criminalizes the renting or leasing of housing to “illegal aliens.” Failure to comply with this ordinance could result in the suspension of the dwelling-unit owner’s business license which would effectively prevent the owner from being able to collect rent from any tenant or occupant. As a result of the ordinance, racial and ethnic profiling of American citizens would become a routine practice.
The ACLU of Georgia has filed suit on behalf of a landlord and six anonymous renters. The ACLU has also challenged similar laws in Pennsylvania, California, New Jersey, Texas, and Missouri. Accordingly, Cherokee County has agreed not to enforce the ordinance until the lawsuits in the other states have been resolved.
STUDENTS' & JUVENILES' RIGHTS
J.U. v. Murray County, 4:06-CV-00077-HLM
(N.D. Ga. 2007)
Students Gets Expelled for Writing Alleged Violent Poem
The ACLU of Georgia has filed a lawsuit on behalf of a Georgia middle school student who was expelled for writing a poem that school administrators deemed threatening. The student had written several poems in a book, but administrators focused on this single poem without reading any of the others.
Many schools across the United States have developed vague school policies in direct response to the Columbine massacre that took place on April 20, 1999. Though current middle school students are too young to remember this infamous day, they are often held to a course of behavior that is largely influenced by administrators’ attempts to avoid a day like this.
Both parties have now filed for summary judgment. The ACLU challenged the school’s policies as vague, and argued that looking at the poem book as a whole, the school could not reasonably view it as a threat and therefore the suspension violated the free speech rights of the student.
Tillman v. Gwinnett County Schools, 1:04-CV-01180-BBM
(N.D. Ga. 2005)
Student Subject to Discipline for Wearing “Gang-Related” Clothing
The ACLU of Georgia filed a lawsuit on behalf on an honor student who alleged he was subjected to disciplinary actions for wearing clothing that the school believed was "gang related." The student claimed that the gang clothing dress code was unconstitutionally vague.
Judge Beverly Martin issued an order addressing the constitutionality of the dress code. She granted summary judgment in our favor and stated that the school’s “gang related” dress policies were unconstitutionally vague. She also granted declaratory and injunctive relief as to the policies under which the Plaintiff was disciplined. The court ruled against us on our free speech and due process claims; it granted the principal qualified immunity, and decided that material issues of fact remained as to the reason our client was ultimately disciplined. A trial date was set for November of 2006.
Shortly before trial, the parties reached a settlement. The judge awarded interim attorneys’ fees to the ACLU in the amount of $53,197.
VOTING RIGHTS
Common Cause v. Billups, 406 F.Supp.2d
1326 (N.D. Ga. 2005); 439 F.Supp.2d 1294 (N.D. Ga. 2006)
Challenging the New Voter Law
The Georgia General Assembly adopted the most restrictive voter identification requirements in the country. The previous law allowed a voter to use one of 17 different forms of identification, but the new law limited permissible identification to only five government-issued photo identification cards.
The ACLU of Georgia and other organizations filed suit arguing that the law constituted an unconstitutional poll tax, it violated the Georgia Constitution by adding a new requirement for voting, and it created an unconstitutional burden on the fundamental right to vote in violation of due process. Judge Harold Murphy granted our motion for a preliminary injunction preventing enforcement of Georgia’s new Voter Identification law.
The sponsors of the law claimed that it was necessary to combat voter fraud. However, the Court found that there had been no confirmed reports of voter fraud for in-person voting anywhere in the State in at least the previous nine years, and that the new law “does nothing to address the voter fraud issues that conceivably exist in Georgia.”
Turning to the practical effect of the law, the Court recognized that the cost and difficulty in obtaining a photo identification in order to vote would “most likely...prevent Georgia’s poor, elderly, and African-American voters from voting.” By requiring voters to pay for a driver’s license or photo identification and raising the fee for such identification, the state had created an unconstitutional “poll tax” and “unduly burdened the right to vote.”
While the Court observed “that it has great respect for the Georgia legislature,” it “simply has more respect for the Constitution.” Thus, the Court required the State to protect voters from the unnecessary and burdensome identification requirements where “loss of th[e] right to vote is undeniably demoralizing and extreme.”
Shortly after the ruling, the Georgia General Assembly passed a slightly revised photo-identification bill. The ACLU of Georgia amended the lawsuit to challenge the new law.
On July 12, 2006, Judge Murphy granted an injunction which barred enforcement of the most recent law.
Amended Complaint | Plaintiffs Brief in support of Motion for Preliminary Injunction | Brief in Support of Plaintiffs' Motion for a Preliminary Injunction + Exhibits | Memorandum of Law in Support of Plaintiffs' Renewed Motion for a Preliminary Injunction | Westlaw Decision Common Cause | Westlaw Decision Common Cause/Georgia League of Women Voters
Feminist Women's Health Center v. Burgess,
2003-CV-78487 (Georgia Supreme Court 2007)
Georgia Refuses to Pay for Medically Necessary Abortions
The ACLU of Georgia filed a challenge to Georgia's policy of denying medicaid coverage for medically necessary abortions. Georgia's policy only permits medicaid funding for abortions when the pregnancy is a result of rape or incest or when the pregnancy is a threat to the woman’s life.
There are many instances where abortion is medically necessary, but not a threat to the life of the woman (sickle cell disease, epilepsy, schizophrenia, etc.). The exclusion of funds for these abortions violates the broad guarantees of privacy and equal protection found in the Georgia Constitution. The ACLU of Georgia asked the state of Georgia to join thirteen other states that have found that such discrimination violates their state's constitution.
Instead of reaching the merits of the case, the Georgia Superior Court dismissed the case on procedural grounds. It stated that the Plaintiffs lacked standing to bring the challenge, and that the Plaintiffs should have exhausted their administrative remedies first.
The ACLU of Georgia has appealed that decision to the State Supreme Court and is currently briefing the issue.
Complaint | Plantiffs Brief of Summary Judgment | Appellant Reply Brief- Plaintiffs | Appeal Brief | Decision
WORKERS' RIGHTS
Anderson v. The Board of Regents of the State of Georgia,
1:04-CV-91493 (N.D. Ga. 2004)
Environmental Hazard Whistle Blower Challenges Termination
After the Safety Engineering Manager for a Georgia Southern University alerted students and employees that dangerous toxic substances were present at the school, he was terminated. He provided this information to people who file worker’s compensation claims related to the hazardous conditions and the Board of Regents in requesting increased funding.
The ACLU of Georgia filed suit in Fulton County Superior Court.
In October of 2006, a bench trial occurred. The trial court judge found that although the reasons for the termination were "perpetual"and "disingenuous" the whistleblower statute was too narrow to protect our client’s speech. We have filed an appeal in the Georgia Court of Appeals.
Complaint | Appellate Brief | Summary Judgement Brief | Decision
Somali Airport Workers Case Near Settlement
Thirteen cleaning employees at Hartsfield-Jackson Airport were fired for not passing a written English proficiency/security test. Employees are being interviewed and the investigation is proceeding with the EEOC. The EEOC has issued a "Determination" that there is cause to believe that national origin discrimination in violation of Title VII was committed, and asked the parties to negotiate. In settlement, our clients were given the option of accepting an "unconditional offer" of reinstatement that would not preclude a further lawsuit. In a second round of negotiations, we have accepted an amount of monetary relief for each client.