2003-2005 Litigation/Advocacy Docket

The following docket contains cases and significant non-litigation matters litigated or resolved by the ACLU of Georgia.

Religious Favoritism at Cobb County Public Meetings
Pelphrey v. Cobb County
The ACLU of Georgia filed a federal lawsuit on behalf of five Cobb County residents seeking to keep legislative prayers at Cobb Government meetings free of references to specific religious denominations. ACLU Attorney Maggie Garrett explained: “If the County chooses to begin its meetings with a legislative prayer, it should not show a bias for one particular faith over another.”
Complaint | Preliminary Injunction | Press Release

Evolution Disclaimer Challenged
Selman v. Cobb County School, No. 1:02-CV-2325 (N.D. Ga 2002)
We had a four-day trial in the Cobb County evolution disclaimer, which began November 8th. The case challenged the disclaimer adopted by the Cobb County Board of education that stated: “evolution is a theory, not a fact” and that the theory should be “critically considered.” On January 13, Judge Cooper ruled that although the school board did have a secular purpose in passing the disclaimers, the disclaimer impermissibly endorsed religion. The Cobb County School Board has announced its intent to appeal. (Michael Manely/Gerry Weber & Maggie Garrett) The stickers have now been removed.  On June 1, we filed the brief of the Appellees with the Eleventh Circuit.  And, on June 10, eight amicus briefs were filed on our behalf.  The briefs were filed by groups, including,  56 science organizations, science teachers, the Interfaith Alliance, the Clergy Laity Network, the Witherspoon Society, and various civil liberties groups. (Jeff Bramlett, David Brackett, and Emily Meazell from Bondurant, Mixson & Elmore, and Gerry Weber & Maggie Garrett).
Press Release | Brief | Decision | Appellee's Brief | Amicus Briefs

Ten Commandment Displays
Turner v. Habersham County 290 F. Supp. 2d 1362 (N.D. Ga. 2003)
The ACLU filed suit challenging two Ten Commandment displays--one in the Habersham County Courthouse and one in the county swimming pool building. At first, both displays included only the Ten Commandments. After we filed suit, the County placed other documents with the Ten Commandments. The court held that the Ten Commandments, even with the additional documents, lacked a secular purpose and endorsed religion. As a result, the court ordered that the displays be removed. The ACLU filed a petition for attorneys' fees in the amount of $79,000. We reached an agreement on fees of $74,462. The county appealed, but later dismissed their appeal. (Frank Derrickson/Ralph Goldberg/Gerry Weber/Maggie Garrett)
Press Release | Complaint | Decision

Doe v. Barrow County 03-CV-0156-CV-WCO-2 (N.D. Ga. 2004)
A lone Ten Commandments display was placed in the Barrow County Courthouse. We filed suit after months of negotiation. The district court denied Barrow County's Motion to Dismiss and granted our Motion to proceed anonymously. The Eleventh Circuit rebuffed Barrow County's attempt to appeal the trial court's ruling that our client can remain anonymous. The suit has prompted protest from Alan Keyes, the KKK, and the House of Prayer Church. (Frank Derrickson/Ralph Goldberg/Gerry Weber/Maggie Garrett) The court signed a consent order providing for the removal of the current display, preventing the placement of substantially similar future displays, protecting our client’s anonymous status after resolution, and awarding us $150,000 in fees and expenses.
Press Release | Complaint | Injunction

Odum v. City of Ringgold, No. 4:02-CV-155-HLM (N.D. Ga. 2002)
The City Councl of Ringgold voted to post the Ten Commandments, the Lord's Prayer, and a blank plaque "for those who don't believe in anything." On behalf of two area residents including the former Mayor, the ACLU and Americans United for Separation of Church and State filed suit and the city agreed to a consent order to remove the display and pay attorneys' fees. (Nelson, Hill, Lord & Beasley- Georgia Lord/Gerry Weber)
Press Release | Complaint

City of East Point Prayer Breakfast
Newman v. City of East Point, No. 1:02-CV-0001-TWT (N.D. Ga. 2002)
The East Point Mayor expended taxpayer money to organize an annual prayer breakfast meeting. The ACLU filed a suit against the City. The federal judge held that the city was violating the Establishment Clause and enjoined the City from sponsoring, funding, endorsing, advertising or coordinating the prayer breakfast in the future. (Ralph Goldberg/Frank Derrickson/Gerry Weber/Robert Tsai)
Brief | Opinion

Eleventh Circuit Upholds Religious Freedom for Inmates
The Eleventh Circuit joined with most other courts in upholding the Religious Land Use and Institutionalized Persons Act (RILUPA), which requires that state prisons reasonably accommodate prisoners religious needs. The case involved a "Torah observant Jew" who sought to eat only kosher food, wear a yarmulke, observe religious holidays, and perform certain rituals. The ACLU filed an amicus brief. (Gerry Weber for ACLU of GA)
Decision

DEATH PENALTY

Mental Retardation/Death Penalty Rulings
Head v. Hill, 277 Ga. 255 (2003); Head v. Stripling, 277 Ga. 403 (2003)
The ACLU submitted amicus briefs in two cases addressing the legal standard used for executing mentally retarded people. In Head v. Hill, the Georgia Supreme Court held a defendant in a capital murder case does not have the right to a jury trial on the issue of mental retardation. Furthermore, the Court upheld the use of the "beyond a reasonable doubt standard" for mental retardation in death penalty cases. In Head v. Stripling, the Georgia Supreme Court affirmed the appellate court's decision, which vacated Stripling's death sentence because the prosecution suppressed evidence supporting his claim of mental retardation. Stripling will now be retried. In accordance with Head v. Hill, in order to avoid the death penalty, Stripling will have to establish his mental retardation to the trial court beyond a reasonable doubt. (Jim Bonner/Sarah Gerwig/Jack Martin).
Head v. Hill Decision | Head v. Stripling Decision

FREE EXPRESSION

Homeland Security Arrest
Vegan demonstrator/protestors were observed, photographed, harassed, followed by plain-clothed and unmarked police officers, and then arrested after a demonstration at the Buford Highway Honey Baked Hams store. Two demonstrators earlier had recorded the make, model, color, and tag number of the unmarked automobile. The protesters were arrested after they refused to turn over the paper with this information to Dekalb Homeland Security. The paper was confiscated following the arrest, as was their house, p.o. box, and car keys. We recently filed suit in this case. (Gerry Weber/Beth Littrell)
Complaint

ACLU Spy Files Project
The ACLU of GA has joined an ACLU national effort to assess law enforcement monitoring of peaceful political and religious groups. In Georgia, spy files were sought from twelve government agencies on behalf of the ACLU itself and the Georgia Peace and Justice Coalition, School of America’s Watch, Women's Action for New Directions, Atlanta Refuse and Resist, and the Atlanta Independent Media Center. These groups were instrumental in organizing protests at the G-8 Summit, Fort Benning, and Former Senator Zell Miller’s office. In addition, individuals from these organizations, and others who have been surveiled by law enforcement are seeking their files. Over a dozen state ACLUs are seeking spy files, and ACLU has filed a lawsuit.
Press Release | Request

Everyone Needs a Permit in Statesboro
James Hood has picketed in the City of Statesboro for the past sixteen years. During the course of these sixteen years, he has asked the police department whether he needed a permit for picketing and the response has always been "no." In April of 2004, Statesboro enacted an ordinance regarding, among other things, picketing. At that time, Hood again approached the police department to inquire whether he needed a permit for picketing and again, the answer was "no." However, in April of 2005, Hood was arrested for picketing without a permit. We believe that Statesboro cannot require citizens to seek permits for solo protests, and that the permit ordinance is unconstitutional. We represent Mr. Hood in his criminal case. (Jack Batson/Gerry Weber/Maggie Garrett)
Brief

DFACS Protesters Website Ordered Down
Johnson v. Boggs
Parents who were unhappy with their treatment by DFACS, developed a protest website. The DFACS employees targeted on the site threatened lawsuits, and went to the local magistrate, who issued show cause order to show why an “Order of Arrest” should not be granted for “false and malicious statements against [the DFACS worker’s] family.” The ACLU filed suit on behalf of the website author, and sought a preliminary injunction arguing that the “Order of Arrest” in an unconstitutional prior restraint. (Gerry Weber/Beth Littrell)
Complaint | Preliminary Injunction | Press Release

Law Criminalizes Consensual Sexual Phone Conversations
McKenzie v. State
A man was convicted of making obscene phone calls to his girlfriend. The statute makes it a misdemeanor “for any person, by means of telephone communication, to: (1) Make any comment request, suggestion, or proposal which is obscene, lewd, lascivious, filthy, or indecent.” O.C.G.A. §46-5-21. The 19-year old, who made the phone calls (which might be characterized as including “phone sex”) to his 13 year-old girlfriend while incarcerated in the Forsyth County Detention Center, challenges the constitutionality of the law in the Georgia Supreme Court. Although the age of the recipient of the calls is a bad fact, the statute on its face has no age or consent elements and is clearly broad enough to cover a substantial amount protected speech. Indeed, it makes criminal “pillow talk,” between consenting adults. We filed an amicus brief, and oral arguments were (ironically) held on Valentine’s Day. The justices took the opportunity to highlight V-Day in their questions! In a unanimous decision, the Georgia Supreme Court held that the law “is an overbroad infringement on the right to free speech” that is not limited to obscene speech and is not limited to minors and un-consenting adults. (Elizabeth Tanis, Leighton Moore, Drew Doptkin–Sutherland, Asbill & Brennan)
Amicus Brief | Decision

Racial Profiling Defense Gagged
When a litigant in a criminal case sought to raise a racial profiling defense, the Court gagged the litigants and sealed the record at the request of the prosecutor (who is up for re-election). We filed an amicus brief, and the judge unsealed the record, but has yet to rule on our request that he rescind the gag order. (Maggie Garrett/Gerry Weber)
Amicus Brief

Graffiti Ordinance
The City of Atlanta recently passed an anti-graffiti ordinance that is so broad that it requires property owners, under threat of criminal penalty, to obtain approval from three city government departments and the City Council in order to display murals. We have been contacted by property owners who have actually paid famed artists to design their walls, and filed suit on behalf of one such property owner. (Gerry Weber).

Bender v. City of Atlanta: Free Expression Graffiti Ordinance
The ACLU filed suit, and is now in settlement negotiations with the City. A new ordinance is before the City Council that will revise the graffiti ordinance to eliminate punishment for property owners and repeal the permit requirement.
Complaint

Whistle Blower About Environmental Hazards
The Safety Engineering Manager for a Georgia Southern University was terminated after he informed employees and students that dangerous toxic substances were present at the school. The Safety manager provided the information to persons who filed workers compensation claims related to the hazardous conditions, and to the Board of Regents’s in requesting increased funding. (Nancy Abudu)
Complaint | News Article

Glynn County/Brunswick and the G-8 Summit
Lyde v. City of Brunswick and Glynn County, (S.D. Ga. 2004)
We filed suit on behalf of a Brunswick Minister challenging Glynn County and Brunswick's protests ordinances adopted based upon models of the G-8 Legal Subcommittee. Among their principal problems, they: (1) require a permit for public assembly of even small groups (more than five individuals), whether planned or "spontaneous," which has the effect, intent, etc. to "attract the notice" of people not part of the gathering; (2) require those distributing leaflets, even solo, to have a permit; (3) require disclosure of an applicant and others' past protest/demonstration involvement; (4) require both a security deposit and an indemnification and hold harmless agreement "in a form satisfactory to the County Attorney"; (5) require approval of the Police Chief based upon numerous vaguely-defined reasons for denial of permit applications which are likely to prohibit most protests or demonstrations, including provisions prohibiting permits for those activities that are "likely to burden lawful commerce" and "present a danger to the health or safety of participants;" (6) impose restrictive size restrictions on signs and banners; and (7) reserve the right to revoke an applicant's permit at any time after it has been granted. After we filed suit, the governments revised their ordinances, and entered into a settlement agreement for locations for various events and demonstrations, and agreed to attorneys' fees of $5,000. Staff and volunteers attended the demonstrations as objective legal observers. (Jeff Bramlett/Sarah Shalf/Jennifer Auer Jordan -- Bondurant, Mixson & Elmore, Jack Batson, Gerry Weber and Maggie Garrett).
Complaint

Savannah and the G-8 Summit
Savannah and Chatham County's new G-8 ordinances, like Brunswick and Glynn County’s, have problems including that the ordinances (1) applu to even one person demonstrations with the "intent to attract onlookers," but not if you engage in "casual park use" that would "not normally attract a crowd of onlookers." (2) havea undefined hold harmless requirements "in a form satisfactory to the City Attorney." (3) that permits can be denied "in light on all contents, goals, intentions and presumptions" of the ordinance or for a-q enumerated reasons including "unreasonable danger to health or safety," "unreasonable disturbance of the peace, or would unreasonably burden lawful commerce ... or would unreasonably intrude upon the privacy and property of citizens." (4) require that you report to the government your involvement in "substantially similar" prior protests and whether you were a part to a lawsuit in those prior protests. (5) give law enforcement broad and undefined authority to stop protests mid-stream. We sued. Savannah changed its ordinance, but Chatham County made only minor changes. We are proceeding against the County. Savannah and Chatham County changed their ordinances and regulations and paid the ACLU $3,000 in attorneys fees. In response, we have dismissed the case. (Jeff Bramlett/Sarah Shalf/Jennifer Auer Jordan -- Bondurant, Mixson & Elmore, Jack Batson, Gerry Weber and Maggie Garrett).
Complaint | Appeal | Motion | Injunction

Anonymity of the Internet
Motown Records/Virgin Records v. Doe 04-CV-0439 (N.D. Ga. 2004)
Two copyright infringement lawsuits were filed in Georgia in which sixteen music companies seek injunctive relief, damages, fees and costs against 296 anonymous and completely unrelated individuals. Plaintiffs allege that defendants have displayed certain data filed on their personal computers, containing copyrighted musical performances, to the general public over the Internet in a manner that enables the public to download those files to their own computers. ACLU of Georgia's amicus brief (with ACLU National, Public Citizen and Electronic Frontiers foundation) argues that, notwithstanding the serious violations of law alleged in the complaint, plaintiffs have not made a sufficient showing to warrant discovery into the identities of persons communicating anonymously over the Internet, including a showing that there is personal jurisdiction over each defendant. Two judges granted the record companies requests for expedited discovery, refused to quash subpoenas finding that our issues were "premature," but both extended the time in which the service provider or impacted anonymous speakers can move to quash. (Gerry Weber)
Memo in Support of Motion to Quash

The ACLU and others are fighting off yet another subpoena that will force an Internet Service Provider to provide identifying information on its customers. This one has a new twist, the ISP, Cox Communications, can establish that none of the Doe defendants even reside in the State. The ISP plans to file a motion to quash, and we have joined the fight as amicae. (Gerry Weber for ACLU/GA)

July 4th Petitioners Charges Dropped
State v. Lawson
On July 4th, supporters of two political parties who were attempting to obtain signatures for a petition to get on the ballot were ejected from a park with a crowd of over 20,000 persons. 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." We 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 work with us on revisions, but a lawsuit proved necessary after changes to the ordinance were unsatisfactory. We filed suit on behalf of the Green Party, Libertarian Party and an arrested campaign worker. After the lawsuit was filed, the City of Rome contacted us and is interested in settling the case. (Gerry Weber/Hollie Manheimer) The City has agreed to settle the case by re-writing the ordinance, and paying attorneys fees and damages of $12,500.  The City enacted the new ordinance.
Complaint

Sign Ordinances
Mendelsohn v. Avondale Estates, No. 1:00-CV-1847-JEC (N.D. Ga. 2000)
Over four years ago, the ACLU filed suit challenging the City of Avondale Estates' sign ordinance, which banned all signs – even political signs, yard signs and real estate signs. Over the course of litigation, the city has revamped the ordinance five times -- repealing many challenged elements of the ordinance, but retaining old problems or adding new constitutional maladies.  In an 88 page order, the federal district judge who has overseen the case noted that City’s “unending amendment process has created a constantly moving target,” but nevertheless concluded that even the fifth machination of the sign ordinance has constitutional defects and is inconsistently applied.  Judge Julie Carnes described the case as a battle between the City’s desire for “hands on monitoring of neighborhood[s]” and our chafing at “badge-heavy enforcement.”  Now, after five years of litigation, citizens in Avondale can use signs to express their views on their own property -- free of government censors. (Neil Bradley/Marcia Borowski/Gerry Weber) In an 88 page order, the federal district judge noted that City’s “unending amendment process has created a constantly moving target,” and concluded that even the fifth machination of the sign ordinance has constitutional defects and is inconsistently applied.  We sought reconsideration of free speech claims under the Georgia Constitution,  are awaiting a final judgment, and have moved for $220,000 in attorneys’ fees and expenses.
Court Order: Part 1 and Part 2 | Atlanta Journal-Constitution Article

Reporter's Videotapes Returned by Military
After our demand letter and some negotiations, charges were dropped and videotapes returned to a reporter who was covering civil disobedience protests at the School of the Americas at Fort Benning. The reporter had accidentally stepped over the base property line while filming the arrests, and his videotapes were seized. (Gerry Weber)

DeKalb County Sign Ordinance
Nash v. Dekalb County, No. 1:00-CV-1694-MHS (N.D. Ga. 2000)
The ACLU had formerly challenged a DeKalb County sign ordinance which banned residential sign and expressive flags, and the county agreed not enforce the challenged provision of the law and to rewrite the ordinance. The County's new ordinance, however, severely curtailed speech by placing a limit of 16 square-feet of signage on each lot. The ACLU moved the Court to lift the stay and to challenge the new restrictions violating free speech. After long negotiations, DeKalb County passed a new ordinance that institutes all of the changes that we sought. The new ordinance increases aggregate sign limits, increases sign area for residential and apartment signs, clarifies the scope of the ordinance, exempts banners and flags from aggregate sign area, and generally revises the ordinance in a number of important respects. As a result, we have dismissed our suit. (Robert Tsai/Gerry Weber)

Fort Benning Mass Search
SOA Watch v. City of Columbus, No. 02-16886-CC (11th Cir. 2003)
In a groundbreaking decision, the Eleventh Circuit held that the mass metal detector searches of non-violent demonstrators violate citizens rights to free speech and protections against unreasonable searches. View the decision at http://www.ca11.uscourts.gov/opinions/ops/200216886.pdf Addressing the City’s claims that the threat of terrorism justified mass searches, the Court held “We cannot simply suspend or restrict civil liberties until the war on terror is over, because the war on terror is unlikely to ever truly be over. September 11, 2001, already a day of immeasurable tragedy, cannot be the day liberty perished in this country.” We received an attorney fee award of $97,500. (Gerry Weber/Maggie Garrett/William Quigley)
Press Release | Complaint | Decision

Protest Permits/Master's Protest
Burk v. Augusta-Richmond County, 365F.3d1247 (11th Cir. 2003)
The ACLU filed a permit and lawsuit on behalf of the National Council of Women's Organizations and the Rainbow/PUSH Coalition seeking to demonstrate outside the Augusta National Golf Course during the Masters. A prohibitive ordinance requires that any group of five or more people who are demonstrating an opinion in favor of or against an issue or person must get a permit from the county. After a hearing, the judge issued two orders denying our facial and as-applied challenges. We sought emergency review. Emergency review was denied. We appealed to the Eleventh Circuit Court asking them to find that the protest ordinance in Augusta-Richmond County, which was designed to interfere with Martha Burk's protest of the Masters Tournament, is unconstitutional. The Eleventh Circuit reversed and found that Augusta's ordinance impermissibly targeted political protesters for regulation, required permits for too small groups, and gave too much discretion to law enforcement to deny permits. A rehearing en banc request was filed. The County's petition for rehearing en banc was denied. The County then filed a motion to stay the judgment while they file a petition for cert. with the Supreme Court. We filed a fee application for $150,000. (Jeff Bramlett, Jill Pryor, Sarah Shalf-Bondurant, Mixson & Elmore/Gerry Weber, Jack Batson).
Appeals Court Decision | Press Release | Appeal Brief | Complaint | Preliminary Brief

Humane Society Punishes Whistleblower
Atlanta Humane Society v. Harkins, 264 Ga. App. 356 (2003)
The Humane Society sued former employees for defamation for statements made to a television reporter regarding a lack of animal cruelty investigations and misleading claims about services. The ACLU participated as counsel to have the suits dismissed under the Georgia anti-SLAPP law. The trial court denied our SLAPP motion, but the Georgia Court of Appeals reversed the lower court's finding. The Georgia Supreme Court remanded the case back, 4-3, under a revised interpretation of the anti-SLAPP statute.  The Georgia Court of Appeals has now reaffirmed the dismissal of the lawsuit.  The plaintiffs have again sought review in the Georgia Supreme Court, and we have sought $150,000 in attorneys fees and expenses.
Brief | Court Decision

Yahoo Subpoenas
Firstwave Communication Inc. v. John Does, No. 1-10, 03-1-5481-42 (Cobb County Superior Court 2003)
The ACLU was asked to act as local defense counsel in a lawsuit with First Amendment implications. The underlying lawsuit involves a company whose stock prices fell after people exchanged comments and information gained for the company's website, which was not ready to be released publically. We were asked to join lead counsel in challenging subpoenas aimed at forcing internet providers (Yahoo & BellSouth) to reveal the identity of anonymous users of an internet message board. Our interest was in defending the right of anonymity on the Internet. The company dropped the lawsuit. (Gerry Weber/Beth Littrell)

GAY/LESBIAN RIGHTS

Marriage Amendment Ballot Language Challenged
The ACLU, flanked by Alston & Bird and Lambda Legal, re-filed a lawsuit challenging the proposed constitutional amendment to outlaw any recognition of same-sex unions that bestow legal rights. Our legal challenge argues that the ballot language unconstitutionally violates the single subject rule by forcing voters to decide 1) marriage access; 2) availability and recognition of civil unions; 3) court jurisdiction and 4) full faith and credit issues with a single vote; and that it is affirmatively misleading, excising more than 100 words and any mention of civil unions in order to influence the results. A group of legislators who support the amendment sought to intervene, but the court has denied their motion. The trial court, relying on a 1920's case, found that our lawsuit was premature, and that we would have to wait until the voters cast their ballots. The Georgia Supreme Court granted our request for expedited review, and heard arguments on October 19th. Scott Titshaw, at Arnall, Golden & Gregory, drafted an amicus brief on behalf of 52 Georgia law professors. However, the Supreme Court also concluded that the lawsuit was premature. The day after the vote was certified, the ACLU refiled the case. Oral arguments on cross motions for judgment were held January 13th. The court denied a motion to intervene by the Christian Coalition and a group of legislators, but granted the would-be intervenors a stay pending the interlocutory appeal. The intervenors’ appeal was denied March 25, 2005. We are awaiting the trial court’s decision on the merits. (Gerry Weber, Beth Littrell, John Stephenson/Jeffrey Swart for Alston & Bird, Jack Senterfitt for LAMBDA).
Amicus Brief | Appellant's Brief

Ban on Gay Newspaper in Public Library
Gay Guardian Newspaper v. Ohoopee Regional Library, No. 02-00104 CV-6 (11th Circuit)
Due to complaints about its controversial content, the Gay Guardian Newspaper, which focuses on political issues of concern to gays and lesbians, was banned from the Vidalia Public Library - and the table for free publications in the library (to which the newspaper sought access) was closed. The ACLU filed suit, but the district court concluded that the library could constitutionally censor the controversial speech of the Gay Guardian newspaper by simply closing its free publications forum." We appealed the decision, but in an unpublished decision, the Eleventh Circuit affirmed the lower court ruling that permitted the government to censor speech through the closing of a public forum. (Beth Littrell/Gerry Weber)
Preliminary Injunction Brief | 11th Circuit Appeal Brief

Same-Sex dates at Prom
A student was not allowed to bring her female friend to the prom. The reason given was that they would create the appearance of a same-sex couple. We wrote the principal and cautioned him against such a rule because it would discriminate against gay and lesbian students. One week later, the principal contacted us to assure us students could bring the date of their choosing, including same-sex dates. (Beth Littrell)
Demand Letter

Discrimination at Private Golf Club/Atlanta Human Rights Ordinance
The Human Relations Commission of Atlanta has decided that the Druid Hills Golf Club is violating a city ordinance by refusing spousal privileges to two gay members' domestic partners. The commission has the power only to advise the mayor, who has 30 days to make a decision. If she decides against the club and it does not change its practice, it could lose its business and liquor licenses. We filed an amicus supporting the ordinance, but encouraging settlement. The Mayor asked both sides to negotiate, and they agreed to mediation. (Beth Littrell/Gerry Weber)
Amicus Letter

Lesbian Wins Custody Appeal
Days after mom filed for child support, wife of paternal father of one of her two children called DFCS and made anonymous report of domestic abuse, drug use and involvement in a lesbian relationship. After an investigation, no evidence of abuse or drugs were substantiated, but mom is, indeed, gay. Against the recommendation of DFCS, a child advocacy organization and the guardian ad litem, the judge ruled the children deprived and placed one with maternal great grandparents and the other with the paternal father who the child had known for less than a month. Oral Argument was held November 8. The Court of Appeals unanimously reversed the decision of the Juvenile Court on Dec. 16th, granted our motion for an expedited remittitur and the children were reunited with their mom and her partner on December 24th. (Beth Littrell/Jeanney Kutner).
Brief | Decision

Athens Residence Registration Ordinance
The Athens rental registration ordinance requires renters and landlords to keep an affidavit stating their compliance with the "definition of family" ordinance in the home or office so that the authorities may access it if they wish. The underlying ordinance bars more than two unrelated persons from living in the same household. A case has already been filed with a private attorney, and the trial court struck down the rental registration ordinance but upheld the underlying ordinance. If applied to a non-traditional family, we may challenge the Definition of Family under the Georgia Constitution. (Beth Littrell)

MISCELLANEOUS

Rabun County Zoning Ordinance
Article XI Section 111 of Rabun County’s zoning ordinance permits administrative officers to enter any property in Rabun County at any time during normal business hours and other reasonable times to determine if the property is in conformity with the regulations of the Ordinance. The ordinance purports to apply to every building (public or private / commercial or non-commercial) and use within Rabun County. After our demand, the County agreed to rewrite the ordinance, and we are drafting an ordinance that requires probable cause or voluntary consent.

Anti-Fornication Law Unconstitutional
In Re the Matter of Jessie J. McClure, 276 Ga. 88 (2003)
Two sixteen-year-olds had consensual sex in the privacy of the female's bedroom, but the male was charged with violating the state's anti-fornication law. The defendant's motion to dismiss the indictment/accusation on constitutional grounds was denied. The Georgia Supreme Court unanimously reversed and declared that Georgia's fornication law does not permit the government to "reach into the bedroom of a private residence and criminalize the private, noncommercial, consensual acts of two persons legally capable of consenting"to sexual activity. The decision serves as a strong reaffirmation of the broad protections of Georgia's right to privacy. (Catherine Sanderson/Beth Littrell/Gerry Weber)
Brief | Court Decision

OPEN GOVERNMENT

Mercer University v. Barrett
The ACLU joined in an amicus brief in the Georgia Court of Appeals with the Georgia First Amendment Foundation, Security on Campus, Lawyers Guild, Society of Professional Journalists and the Student Press Law Center supporting a Bibb County Superior Court ruling that the Mercer University Police Department is subject to Georgia’s Open Records Act (O.C.G.A. §50-18-70). The Superior Court ruled that records maintained relating to exercise of public functions are subject to disclosure. The police department appealed the decision on the ground that they are not subject because of the University’s status as a private institution. However, the University police department exercises the police power of the State of Georgia under O.C.G.A §20-8-2, having such public functions as the power to arrest. Following this reasoning, they are, arguably, subject to the Open Records Act in the same manner as other government law enforcement agencies. (Gerry Weber for ACLU/GA).
Amicus Brief | Decision

Confidential Informant
Palmer v. Nix 02-CV-1861-2 (Dekalb County Superior Court 2003)
The Georgia Death Penalty Resource Center filed an open records request to retrieve documents pertaining to a confidential informant, whose testimony in part led to the conviction of a man now on death row. The identity of the informant is known, but the State refused to release the records under a never-interpreted exemption of the Georgia Open Records Act that, we argued, does not apply. At the hearing, the judge dismissed the case. (Gerry Weber/Angela Elleman/Thomas Dunn)
Brief

Private Police Forces Must be Open Too
The ACLU joined in an amicus brief in the Georgia Court of Appeals with the Georgia First Amendment Foundation, Security on Campus, Lawyers Guild, Society of Professional Journalists and the Student Press Law Center supporting a Bibb County Superior Court ruling that the Mercer University Police Department is subject to Georgia’s Open Records Act (O.C.G.A. §50-18-70). The Superior Court ruled that records maintained relating to exercise of public functions are subject to disclosure. The police department appealed the decision on the ground that they are not subject because of the University’s status as a private institution. However, the University police department exercises the police power of the State of Georgia under O.C.G.A §20-8-2, having such public functions as the power to arrest. Following this reasoning, they are, arguably, subject to the Open Records Act in the same manner as other government law enforcement agencies. (Gerry Weber for ACLU/GA).
Amicus Brief

POVERTY

Augusta-Richmond County Panhandling
Richmond County began to enforce its broad panhandling ordinance that is not limited to aggressive panhandling. After our demand letter, Augusta-Richmond plans to amend its current panhandling ordinance so as to cure the current constitutional violations. (Sandy Wallack)

Georgia State University Bars Giving Food to Homeless
After the City of Atlanta handed over control of Woodruff Park to GSU, the University banned Food Not Bombs from serving food to homeless people in the park unless they comply with extensive regulation. After ACLU involvement, GSU altered its position to allow the sharing of food in the park. (Gerry Weber)

PRISONS

Prison Restraint Chairs
The ACLU filed suit on behalf of a group of inmates and pre-trial detainees who were repeatedly placed in a restraint chair by Dooly County jail officials. The restraint chair is a wooden chair with straps for inmates’ wrists and ankles that prevents all movement except for the turning of one’s head. It is often placed outside, and inmates are exposed to the elements. Some inmates have been held in the chair for as much as five hours, and forced to defecate on themselves. Inmates and pre-trial detainees also report being pepper sprayed while held in the chair. The jail has been using restraining chairs to punish prisoners despite a recent Supreme Court decision emphasizing that restraint should not be used to impose “wonton and unnecessary pain,” and should not be applied once a prisoner has been subdued. (Jim Rockefeller-Gomez Law Group/Rebecca Wasserman and Elizabeth Tanis-Sutherland, Asbill and Brennan/Gerry Weber/Maggie Garrett).
Complaint

Eleventh Circuit Upholds Religious Freedom for Inmates
The Eleventh Circuit joined with most other courts in upholding the Religious Land Use and Institutionalized Persons Act (RILUPA), which requires that state prisons reasonably accommodate prisoners religious needs. The case involved a "Torah observant Jew" who sought to eat only kosher food, wear a yarmulke, observe religious holidays, and perform certain rituals. The ACLU filed an amicus brief. (Gerry Weber for ACLU of GA)
Decision

RACE/NATIONAL ORIGIN

Racial Profiling Defense Gagged
When a litigant in a criminal case sought to raise a racial profiling defense, the Court gagged the litigants and sealed the record at the request of the prosecutor (who is up for re-election). We filed an amicus brief, and the judge unsealed the record, but has yet to rule on our request that he rescind the gag order. (Maggie Garrett/Gerry Weber)

English-Only Employee Policies
The Hall County Department of Health tried to institute a policy under which employees could only speak English, even during breaks and lunch. Violation of the policy would lead to termination. The ACLU wrote a letter to the DHR commissioner and the policy was promptly rescinded. (Gerry Weber)

Non-Citizen's Right to Counsel at INS Registrations
Along with at least three other states, the Georgia INS office has taken the position that persons from countries registering under the new special registration requirements are not entitled to counsel during the registration. This position is contrary to 8 C.F.R. § 292.5 which states that persons are, in fact, entitled to counsel. The issue has been resolved favorably in New York and Ohio. We sent a demand letter, and the INS has publicly stated that counsel may "accompany clients in the registration process" but cannot accompany the foreign national "if investigators suspect them of violating immigration law." We have yet to receive a formal response, but the practice has changed. (Gerry Weber)
Demand Letter

STUDENTS'/JUVENILES' RIGHTS

Gang Clothing Policy Struck Down
The ACLU filed a lawsuit on behalf of an honor student repeatedly subjected to disciplinary actions for wearing clothing associated with his African American culture. The lawsuit alleged that the student was repeatedly harassed, punished and labeled as a discipline problem by Brookwood High School official. The Gwinnett County school district refused to publish a list of prohibited clothing, and also refused to expunge the student's discipline record. The lawsuit alleged that the dress code is unconstitutionally vague and overbroad, and violates students' free expression and due process rights. Judge Beverly Martin granted summary judgment in our favor on the central issue of whether the schools gang-related policies were unconstitutionally vague, and granted declaratory and injunctive relief as to the policies under which our client was disciplined. The court ruled against us on our free speech and due process claims; granted the principal qualified immunity; and decided !
that material issues of fact remained as to the reason our client was ultimately disciplined on each occasion, as the school changed his records after litigation began. A hearing on the remaining issues and damages will be scheduled. (Beth Littrell/Kes Roberts/GerryWeber)
Press Release | Order | Complaint | Summary Judgment Brief

Students Suspended for Birthday Cake Knife
In an example of ”zero tolerance=zero common sense,” we are representing two students who were suspended for cutting a birthday cake with a knife that was present in the school.  The students may also face criminal charges.  (Craig Goodmark)

Standing for the Pledge of Allegiance
A student at a Georgia public school refused to stand for the Pledge of Allegiance, despite the fact that her teachers frequently asked her to stand.  On the day the student was given an in-house suspension, she had been asked to stand several times and had  refused; after the Pledge, she asked the teacher to use the bathroom and the teacher denied her request.  She then left the classroom without permission because she felt ill.  Later that day, the student was summoned to the Vice Principal’s office where she signed an in-house suspension form.  On her suspension form, the Vice Principal listed both the refusal to stand for the pledge and her unauthorized leaving of the classroom as reasons for the disciplinary action.  She has since served the suspension.  The School District issued an apology.  (Maggie Garrett).

Off-Campus Website
Goldsmith v. Gwinnett County School District 1: 03-CV-3218 (N.D. Ga. 2003)
A local high school student was suspended from school after posting to a website created by another student off school grounds. The website was a vehicle for students to complain about a particular teacher. Students made hyperbolic references to the teacher's death and other offensive comments, and were suspended for the rest of the year. Off-campus student-created websites are afforded free speech protection from disciplinary action absent evidence of substantial disruption or serious and imminent danger. We argued for a preliminary injunction of the school policies that allow students to be punished for off-campus speech and the release of the students' records relating to the discipline. We are still awaiting a decision. In March 2004, the County voluntarily revised their policy for punishing off-campus Internet communications to bring it in line with the Constitution. The court had indicated that it does not consider the postings illegal threats and that we would likely prevail unless the defendants could demonstrate disruption to the school environment at a June 18th hearing. After depositions, the school withdrew their motion for a hearing and initiated settlement negotiations. We settled for (1) revision of policies, (2) expungement of discipline, (3) damages of $15,000, and (4) attorneys fees of $80,000 ($65,000 for ACLU). (Beth Littrell/Gerry Weber/John Cross/Bette Rosenweig).
Preliminary Injunction Brief

Tweety Bird Keychain Case
Smith v. Cobb County School District, No. 00-1-08497-35 (Cobb Super. Ct. 2001)
A student was suspended for violating a Cobb County public school's prohibition on chains by carrying a Tweety Bird wallet key chain. The ACLU filed an open records suit over the School District's refusal to produce records related to the enforcement of its vague and overbroad weapons policy. The documents provided were redacted to the point that the records were essentially useless. The Court ordered that the school district produce the same records again but without the redactions. The issue of whether the government could charge us for the cost of redacting the records remains unresolved. We received the records with only private information redacted. (Gerry Weber/Beth Littrell)
Complaint

Speaking at School Board Meetings
Anderson v. Cobb Co. School Board, No. 1:02-CV-1893 (N.D. Ga 2002)
We are representing a Rome ethics-watchdog who filed a lawsuit pro se challenging the Cobb County School District's "resident-speakers and employees only" public comment section. Judge Evans found that the public comment section was a limited public forum. The Board has re-written the policy to be an explicit "residents and employees only," no exception policy. The new policy bars non-resident parents, attorneys, public officials, advocates, and other workers who wish to speak on areas of concern to the school district. The court granted the School District's motion for summary judgement by ignoring its earlier finding that the school policy allowed arbitrary exceptions. The court ruled that the government may limit public comment to residents only. We filed for reconsideration. (Gerry Weber/Beth Littrell)
Summary Judgment Brief

Juvenile Access to Bail
Georgia law guarantees juveniles equal access to bail, but an investigation revealed that 96% of juveniles (over 23,000 kids) detained at juvenile facilities are bail-eligible but were not afforded bail. The ACLU joined the Georgia Alliance for Children in delivering a letter to the Department of Juvenile Justice and the Georgia Supreme Court urging the State to address this problem. With our help, a model program is now being used for juvenile bail in Fulton County. (Gerry Weber/Leigh Finlayson)

Schools Ban Confederate T-Shirts
Shingler v. Seminole County Sch. Dist., No. 6:01-CV-36-WLS (N.D. Ga. 2001)
The Seminole County Board of Education banned the wearing of t-shirts displaying the confederate flag or any "reference to race" even though there have never been any incidents of student unrest due to t-shirts. The ACLU filed suit on behalf of nine students who had been sent home and forced to remove a t-shirt or be disciplined. The court denied a request for preliminary injunction, but affirmed the students' right to engage in silent, passive expression of their opinions by wearing the t-shirts. The parties engaged in discovery and then reached an agreement by which Defendants rescinded the blanket ban on confederate flag shirts; revised and clarified the dress code in order to protect the free expression of students; provided freedom from dress code restrictions for extra-curricular events; created clear procedures for appeal of dress code discipline; and agreed to provide training to teachers and administrators.(William Shingler/Gerry Weber/Robert Tsai)
Complaint

Student Punished for Anti-American Speech
An Atlanta-area school suspended an Arab-American student for "making disparaging comments about America." School officials apparently were unduly influenced by the September 11 attacks. After the ACLU became involved, the school rescinded the disciplinary sanction. (Gerry Weber)

WOMEN/CHOICE

Medically Necessary Abortions
Feminist Women's Health Center v. Burgess 2003-CV-78487 (Fulton Superior Court)
The ACLU filed a challenge to Georgia's policy of denying medicaid coverage for medically necessary abortions. Georgia's policy permits funding for abortions only for instances of rape, incest, and a threat to the life of the mother. However, there are many instances where abortion is medically necessary, but does not fall within one of these three categories (sickle cell disease, epilepsy, schizophrenia, etc.). The exclusion of funds for medically necessary abortions violates the broad guarantees of privacy and equal protection found in the Georgia Constitution. We are asking Georgia to join thirteen other states who have found that such discrimination violates their state's constitution. The trial court denied our petition for a temporary restraining order, finding that we had not demonstrated an "emergency" and thus must continue in the case in the normal fashion. The case is continuing. (Reproductive Rights Project/Marcia Borowski/Maggie Garrett)
Press Release | Brief

Pregnancy Discrimination and Retaliation
Adams v. Toombs County, No. CV601-83 (S.D. Ga. 2002)The Sheriff of Toombs County demoted a female sheriff's deputy because of pregnancy after she refused to resign. Her husband, another deputy, was also pressured to have his wife resign, then was immediately demoted when he refused to do so. The EEOC issued the female deputy a right-to-sue letter based on sex discrimination and retaliation. The ACLU filed suit on behalf of the couple and the suit was favorably resolved. (Gary Spencer/Lucinda Perry)

VOTING RIGHTS

Challenging the New Voter Law
The General Assembly adopted the most restrictive voter identification requirements in the country – limiting permissible identification to only a government-issued photo identification or drivers license. The law may constitute an unconstitutional poll tax, violate the Georgia Constitution by adding a new requirement for voting, and create an unconstitutional burden on the fundamental right to vote in violation of due process. A coalition of over two dozen civil rights, religious, labor and advocacy groups urged the Department of Justice to block implementation of the law. We are helping represent the interests of the coalition. The Department of Justice granted pre-clearance. We filed suit, and a Motion for Preliminary Injunction. In a 123 page order, Judge Harold Murphy granted our motion for a preliminary injunction preventing enforcement of Georgia’s new Voter ID law, the most restrictive voter identification provision in the Nation. The sponsors of the law claimed that it was necessary to combat voter fraud. However, the Court found that there at 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.” Indeed, the Court noted that another method of voting, absentee voting, had been preyed upon by purveyors of voter fraud but the legislature remarkably made fraud more likely in absentee voting and “left the field wide open for voter fraud by absentee voting.” Turning to the practical effect of the law, the Court recognized that the cost and difficulty in obtaining a photo ID just to vote, would “most likely to prevent Georgia’s poor, elderly, and African-American voters from voting.” By requiring voters to pay for a driver’s license or photo ID, 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 ID requirements where “loss of th[e] right to vote is undeniably demoralizing and extreme.” (Seth Cohen/Miles Alexander-Kilpatrick Stockton, Ralph Knowles-Doffemeyer, Shields, Canfield, Knowles & Devine, Emmet Bondurant-Bondurant, Mixson & Elmore, Neil Bradley-ACLU Voting Rights Project, John Greenbaum-Lawyer’s Committee for Civil Rights Under Law and Gerry Weber/Maggie Garrett-ACLU of Georgia).
Complaint | Decision | Creative Loafing | News Release | Coalition Letter | Secretary of State Letter

Social Security Number Disclosure
The ACLU Voting Rights Project and ACLU of Georgia challenges a requirement of state law that an applicant for voter registration disclose her social security number alleging violations of the Voting Rights Act and federal Privacy Act. While the State claimed that social security numbers were helpful in preventing fraud, the Court held that it “cannot allow that which the Privacy Act prohibits, no matter how great the need may seem to be.” (Neil Bradley)
Order

Unapproved Voting Procedures
The Soil and Water Conservation District of Dekalb County have set election dates, set candidate qualification dates, and have held elections without securing pre-clearance. Failure to obtain pre-clearance is a violation of Section 5 of the Voting Rights Act. In addition, their elections are usually held on dates other than those required for other public offices in Georgia and there is only one polling place for the elections. This leads to a voter turnout of less than 6/10ths of one percent of the registered voters. And, approximately 10% or those voters were African-American, whereas African Americans make up 50% of registered voters in Dekalb County. We joined a lawsuit filed by the ACLU Voting Rights Project. After the filing of the lawsuit, the state cancelled the elections in Fulton and Dekalb Counties is seeking pre-clearance.
Complaint | Motion for Injunction

WORKERS RIGHTS

English Test for Airport Employees
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 has asked the parties to negotiate. (William Nguyen/Chris Ho from the Employment Law Center and Debra Schwartz/Marcia Borowski/Julie Northup of Thompson, Rollins, Schwartz and Borowski, Gerry Weber, Maggie Garrett).

Whistle Blower About Environmental Hazards
The Safety Engineering Manager for Georgia Southern University was terminated after he informed employees and students that dangerous toxic substances were present at the school. The Safety manager provided the information to persons who filed workers compensation claims related to the hazardous conditions, and to the Board of Regents's in requesting increased funding. We filed suit in Fulton Superior Court. The Defendants removed the case to federal court and we are fighting the removal. (Nancy Abudu)
Complaint | News Article