Move to dismiss suit is denied

Apr. 23, 2014 @ 05:01 AM

The man accusing the Lee County Commissioners of willfully holding an illegal meeting — and suing some of the individual commissioners for fees as a punitive measure — won a small victory Tuesday.

The county’s attorney, Neil Yarborough, tried to have the lawsuit filed by local Democratic activist Jay Calendine thrown out for a number of technical reasons, including that Calendine wasn’t harmed by the meeting, nor was anyone else. Yarborough also noted that the county government has no history of violating open meeting laws.

That wasn’t enough for Superior Court Judge Winston Gilchrist, however, who denied Yarborough’s request for dismissal.

Calendine didn’t comment afterward, but his attorney, Kevin Foushee, said they were glad to have the chance to continue the case. A trial date wasn’t immediately set.

During Tuesday’s hearing, Foushee focused on the fact that Yarborough had sent a letter to the commissioners, warning them beforehand, about holding a public town hall meeting in the gated Carolina Trace neighborhood. To attend the meeting, people were required to give photo identification to a guard before being allowed entry and, if they had issues, were instructed to call a local Republican Party operative.

Foushee said those factors led the commissioners down a “slippery slope” toward illegality that Yarborough himself acknowledged, even though he spent his Tuesday morning in court arguing the opposite.

“It’s kind of disingenuous to get up here and say, ‘There’s no problems with what we did,’ when on March 4, 2014, he told his clients, ‘There’s a lot of problems with what we’re about to do,’” Foushee said of Yarborough’s letter to the commissioners.

In that letter, Yarborough specifically pointed out that there could be issues with having people call a Republican Party volunteer for assistance gaining entry — especially since they did not publicize his phone number, he could choose to not answer his phone in the meeting, and people could be left out if he got multiple calls at once.

Under state law, a meeting of public officials for official purposes must be easily accessible by the public — and anyone can sue over violations of the law, even if he or she can’t prove damages other than those “suffered by the public at large.”

Yarborough, though, debated the validity of any damages or harm Calendine might claim. He said Calendine was at the meeting before it started, signed up to give a public comment — for which he voluntarily gave his name and other identifying information — and stayed throughout the event and after.

He called Calendine filing a suit over having to identify himself to a guard, even though he freely identified himself during the meeting in his public remarks, “petulant and immature.”

Yarborough also pointed out that Calendine’s suit only names the three Republican commissioners who came to the meeting in question — Charlie Parks, Kirk Smith and Andre Knecht — and not the fourth elected official in attendance, Commissioner Amy Dalrymple, a Democrat.

Other than showing the lawsuit is “obviously politically motivated,” Yarborough said, the exclusion of Dalrymple should have been self-defeating for Calendine’s argument because she was the last person to arrive at the meeting, as well as the person who gave the board its fourth member present, thus legally turning it from a non-public social gathering into an official meeting.

“It would have been impossible for the three [Republican] commissioners to have done anything wrong until Mrs. Dalrymple came,” Yarborough said. “She’s the one who created the quorum. ... The three people who were sued were not in an official open meeting until the commissioner who was not sued showed up.”

Foushee, however, said Dalrymple acted in good faith by opposing the nature of the meeting during the meeting itself, once she was able to pass the guarded gate. The other three commissioners were included, Foushee said, so that they can be made to pay the cost of the lawsuit as a punitive measure to encourage lawful behavior in the future.

“That’s why we didn’t include Mrs. Dalrymple,” he said. “It didn’t have anything to do with what political party she’s registered to. It had to do with what she said.”