Judge denies redistricting injunction

Mar. 25, 2014 @ 04:53 PM

Superior Court Judge Tanya Wallace denied the request for a temporary restraining order against redistricting Monday afternoon. A hearing for a motion for an expedited discovery order is set for Friday. 

Wallace said that in order to grant a temporary restraining order, she has to find irreparable harm and she could not do that at that time, therefore could not grant the temporary restraining order. 

According to state statute, in order to receive a temporary restraining order a party must prove with specific facts shown by affidavit or through a verified complaint that “immediate and irreparable injury, loss, or damage will result to the applicant.”

After the decision Kim Hillegas, the lead plaintiff, said she was a little disappointed, but not discouraged. She said that after discovery, they will have more information. 

She said that she personally has made six requests and has not received a response. She said that from day one, the question they have asked is “why?” 

Hillegas said that when they get to the point where they have all the information and know all the facts, the legal part will end and they will move onto the next part, which is elections.

A statement released by Citizens for Adequate Public Schools (CAPS) said their plan to move through discovery and seek a permanent injunction is undeterred. 

“It is unfortunate that the Board of Education, and its counsel, still view us as enemies (as they have throughout this process), as opposed to concerned parents and property owners,” the statement read. “It is our sincere hope that the Board of Education will engage us directly – explaining their motivations and working with us to find compromise solutions to the problems facing the Union County Public School System.”

During the hearing, each side presented their cases for and against a temporary restraining order.

George Sistrunk, an attorney for the plaintiffs, said that they believe all citizens were immediately and irreparably harmed when the vote to redistrict was taken. 

He said the vote caused “all sorts of impacts that are being forced upon the citizens of Union County.” He said the citizens were denied their right to an open and honest government. He also cited increased costs and potential damage to property values as a result of the redistricting vote. 

Keith Merritt, another attorney representing the 15 plaintiffs, said later that the school board was “making decisions in the dark” and the temporary restraining order was necessary to determine whether or not there was a violation of the open meetings law. 

Wallace asked what the immediate and irreparable harm was, given that they are entitled to those facts with or without the temporary restraining order. 

Sistrunk said they had to stop the process now because too much was unknown. 

In his opening, Sistrunk said there was a quorum present at a facilities committee meeting where redistricting was discussed, that members of the public were excluded from meetings where the rooms were too small to accomodate everyone who wanted to attend, that the vote was scheduled for April and the board published a false agenda in March, where a discussion on redistricting was slated for information only, not for a decision. Sistrunk also said that members of the board were reading from a script when they made a motion for redistricting and they believe it was decided before the meeting, in violation of open meeting laws.

Sistrunk said the public was excluded so the board could rush through a “wildly unpopular” redistricting request. 

He also said the school system had not responded to reasonable requests for public records. Merritt said later that withholding the information used to make the decision is part of what they regard as a “scheme” to keep people out of the process. 

“What we’re trying to do is stop this ball from rolling,” Sistrunk said. 

A temporary restraining order halts an action for up to 10 days. 

Richard Schwartz, an attorney representing the school board, began his response by “absolutely denying” the allegation that people were denied a fair and open government. 

He said the complaint was “infuriatingly” and palpably wrong and that it was a lot of sound and fury indicating nothing. 

Schwartz noted that according to state law (115C-44), in all actions brought against a school board, the board of education is presumed to be correct and the burden of proof is upon the party bringing the complaint. He said that every action starts out with a legal requirement the plaintiffs do something “other than speculate.” 

He said the plaintiffs’ sole goal is to overturn redistricting. He said he understands that redistricting is “traumatic” but the school board has to govern all of Union County and had open seats in some parts of the county. 

Schwartz said the board had to make a decision and they had other options available, but every decision has options. He added that because the plaintiffs don’t like the decision, they have ascribed “conspiracies.”

He said that ultimately the board made a decision the plaintiffs do not like, but that does not make it illegal. 

Schwartz said of the November meeting, that a complaint about a violation of the open meetings law must be filed within 45 days of the meeting. 

Schwartz listed the other meetings where redistricting was discussed and said many of them had overflow rooms and were broadcast live over the internet. 

He said there is no legal requirement whatsoever that the board of education hold public hearings regarding redistricting and the Union County board held two. 

He said there is a lot of public access to the meetings, much more than is required by law. 

Merritt said in a response that he did not think the court could rely on Schwartz’s information because there were no affadavits. He said their complaint is a verified complaint and that everything else are facts that are not in evidence. 

In a public work session, Superintendent Mary Ellis told the board that in order to implement a redistricting plan by the 2014-2015 school year, given the size of the staff, a decision would have to be made by April. 

Schwartz said public comments saying there would be a vote in April were “neither here nor there” with regard to open records and public meeting laws, because a board action was never taken saying there would be an April vote. 

He said one board member decided they were ready to vote and spoke with other board members, though not a quorum. 

He said it was not done with any intent to deceive the public, which elicited laughter and snickers from the parents in the courtroom, but that some members of the school board were ready to move on. 

Schwartz addressed the script, saying there was one and there is nothing wrong with that under the open meetings law and that governments do it all the time. 

Merritt said in a news interview that someone said they had legal counsel write the scripts and he was interested to know who wrote the motions and how they were sent. He said his policy is to send a copy to everyone. 

In a news interview after the vote, Yercheck said that he and legal counsel wrote the motions after being approached by board members saying they were ready to vote that night.

Schwartz said he did not know what was said in the interview, but that open meetings law does not prohibit discussion or meetings as long as a quorum is not present. He said if someone asks counsel to write a resolution, they can do that. 

With regard to the public record requests, Schwartz said they were inundated with requests and that the system is very short-staffed, but they are doing everything they can to fulfill the requests. 

He noted that the open records law does not give a time requirement, but there is a good faith understanding the records will be received. The law states that “custodians of public records” must respond to all requests as promptly as possible and if the request is granted, copies will be provided as soon as is reasonably possible. 

Schwartz said that all public records requests are in some stage of being completed, which also prompted snickers from the attendees. 

A decision on whether or not to grant an expedited discovery motion will be made Friday at 10 a.m. An expedited discovery motion compels the defendant to fill requests as soon as possible, often with a deadline of some sort in place.