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Open , Honest County Government |
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PUBLIC SPIRITED CITIZENS of SEVIER COUNTY |
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Legal 1 |
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Click to continue for pgs 2 &3 |
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Public Spirited Citizens of Sevier County Inc., organized in 2008, with their goals and Mission moved to the courts for redress, as permitted by the U. S. Constitution. Small in number and with limited resources from the beginning, this was a challenge accepted by those thirteen citizens, who were later joined in these efforts by nine others.
Twenty-two plaintiffs at most have been instrumental through court action in what began August 2008 with three suits seeking Certiorari (review) of practices and rules of the local government intended to stymie one of their own, as well as members of the general public in relation to specific concerns; the second suit alleging violations of the Open Meetings Act filed in August was then followed by an Ouster suit September 2008 based on the constitutional question the Mayor of the County served both the elected position and as Chairman of County Commission, elected by the commissioners – whom, each selected to serve on various committees, were appointed by the Chairman wherein Committee Rule was the order of business. It was alleged there is no separation of power between the legislative and executive branches of the government.
Circuit Judge David R. Duggan, of Blount County, sitting by designation, heard these three suits:
A. Petition for Certiorari B. Violations of Open Meetings Act, and C. Ouster of the Mayor & Chairman
Judge Duggan held, in all three cases on the legal issue of ‘standing’ that public spirited citizens had no standing to question the performance of public officials or call them to task for alleged wrong-doing of any kind or nature; however, he allowed the issue of alleged violations of the Open meetings Act to go forward, ruling with a split decision on alleged 720 electronic contacts among commissioners by eight commissioners over a period of four months during the time 'The Rules' were changed, improper maintenance of Commission Minutes, alleged failure to give proper Public Notice as required by statute, resulting with this second case traversing the appellate route as the latest of three suits to be appealed to the Eastern Division of Tennessee, from the Chancery Court of Sevier County.
Appeal of the Petition for Certiorari and the Ouster suits were considered by the Court of Appeals confirming Judge Duggan, and, Petition for Permission to Appeal to the Tennessee Supreme Court filed November 29, 2010 was denied by posting on March 14, 2011 (with Justice Gary R. Wade, of Sevier County, not participating. A Motion for Rehearing was filed and we await further action, as Citizens carry this case forward to the U. S. Supreme Court by June 2011. While plaintiffs have born the majority of court costs, a portion was charged to Sevier County, as, Judge Duggan’s (split decision) coming on the Open Meetings Act after hearing March 2010 came near or immediately before the May primary 2010, which was appealed on August 4, 2010, now awaits the transcript being forward to the Court of the Appeals from the Chancery Court of Sevier County, after considerable delay the record I due to be filed May 2011.
Simultaneous with the last of these three decrees of Judge Duggan being filed (now on appeal), Citizens brought an action in the Sevier County Chancery Court prior to the May primary alleging that sixteen candidates seeking office, mostly as incumbents, were disqualified for reasons relating to the Hatch Act. A portion of these candidates were alleged to be paid, if not in whole in part, by federal grant funds received through the general fund of the county. Funds distributed to various departments benefiting employees, who through their employment by such funds were ineligible as candidates. A commissioner named therein, is alleged to have received large sums of money in return for the services of his personally owned and operated business as a conflict of interest with his position on the Commission, which in addition thereto, were not publicly bid.
An election contest followed the primary results, lodged against the Election Commission of Sevier County, the Coordinator of Elections for Tennessee named as defendant.
Both suits relating to The Hatch Act were removed from state court in 2010, each by different parties-defendant in both cases, as a politically convenient move, those candidates declared to be successful in one case - with four not joining in. Counsel for those select few did not represent the remaining four by such action nor did Ms. Bradshaw file responsive pleadings to plaintiffs' suit in state court nor to plaintiffs' Motions in federal court, as those removing the case were incumbents being in a position to control the purse strings of the county, the remaining four were already employees of the county, two of whom as successful were sworn in as Commissioner on September 1st and the remaining two, having failed, returned to their employment with the county. Apparently the county discriminates among their officials and employees when defending those certain few, selectively?
David A. Stuart of Clinton, TN stepped up to represent plaintiffs as original counsel (Herbert S. Moncier was fighting an earlier suspension in the Federal Eastern District and was unable to carry forward these cases in the federal jurisdiction, this being a convenient strategy of the defendants in the removal and thought to be detrimental to plaintiffs; however, plaintiffs regrouped and are going forward without repercussions, not missing a step.
The status of these case(s) now are pending on appeal to the U. S. Court of Appeals on the premise that all defendants were required to participate in the removal of these actions under the Rule of Unaniminity from the state jurisdiction to the federal jurisdiction – this did not happen. By what might by some be considered as 'attorney error' in plaintiffs' record as pointed out by the Court as a technicality in the record, the Court failed to remand case(s) on this technical record despite plaintiffs' position, plaintiffs filed their Notice of Appeal from the November 2010 and February 2011 rulings on March 9, 2011. Plaintiffs opted to appeal directly to the U. S. District Court of Appeals after curing their record on March 8, the appeal lodged with the U.S. Court of Appeals as opposed to re-filing again in the state court. Plaintiffs are grateful to D. Stuart!
Herbert S. Moncier represents plaintiffs in all matters now in the District Court of Appeals, Cincinnati.
Plaintiffs proudly share with our readers the progress we have gained – there have been many changes in our local government since 2008 to the present. Changes occur every day in some way.
As we continue with our work – seeking access to TBI investigative files wherein by press release to the public District Attorney General James B. Dunn 'has cleared all' in as many as six incidents in which the TBI has investigated during this time; we seek justice for all through a process intended to remove the intimidation earlier experienced by citizens from their government in exercising their rights of inquiry from public records or speech regarding their concerns.
Through our best efforts and exhausting our limited resources, we call upon each of you as a concerned citizen to join forces, if only by lending moral or financial support. A few persons have taken on the challenge before them – a few persons can make a difference – we have!
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Summary of Legal Action of Public Spirited Citizens |