Friday, August 8, 2014
A lawsuit against the City of Georgetown and several public officials continues, as the plaintiff, James “Marty” Tennant, has filed objections to the report and recommendation issued by a magistrate judge in U.S. District Court June26.
The lawsuit is a civil rights case, involving one violation of amendment rights, one allegation of conspiracy denying protection of those rights, and four pendant state law claims.
In total, six causes of action. The magistrate’s report, which was filed by U.S. Magistrate Judge Bristow Marchant, recommended the first and second claims be dismissed because, in the first claim no violation of Tennant’s rights was proved, and in the second Tennant did not provide evidence meeting all requirements to prove a conspiracy.
The suit also involved four state law claims, which the report recommended be dismissed without prejudice so Tennant could pursue the matters in state court.
Each party, starting with the plaintiff, is given a chance to file objections to the recommendation before the district judge reviews the case and makes a final ruling.
Tennant’s plaintiff objection was filed Aug. 4.
In his opening objection, he asks the district judge to reverse the magistrate’s approval of the Defendants’ motion for summary judgement. He warns allowing the report will “endorse bullying and threats of violence as accepted official speech by public officials in retaliation to the protected speech of private, ordinary citizens.”
The introduction also states accepting the report will “effectively criminalize … speech that was not criminal in nature and that was spoken as part of a private citizen’s normal and long accepted exercise of their first amendment right to criticize their government.”
In opposition of the recommendation for the first claim, Tennant has several objections.
First, he disputes the sequence in which the magistrate addressed dismissing charges. The magistrate first dismissed the City of Georgetown, then Mayor Jack Scoville, and then Councilman Brendon Barber; Tennant argues it should be the opposite.
He also argues the judge used “unfounded factual findings” to make his determination, including a claim that Tennant started his presentation by addressing Barber rather than the council as a whole, and that he and Barber got into a brief personal dispute.
He also argues, in opposition to the magistrate’s statement that it would have been justifiable for the mayor to remove Tennant from the meeting, that “one must conclude that the Magistrate believes Defendant Barber is above the law… as it was Barber, not the Plaintiff, that did not abide by the rules of Council.”
The report identified Mayor Scoville’s comment, “Why didn’t we think about doing that before?” as “an obviously facetious comment.”
Tennant argues that while both Scoville and Barber said the comment was a joke, the mayor contradicted himself by saying in court it was “probably, an inappropriate comment.”
Tennant also states the mayor should have gaveled and removed Barber from the meeting but did not.
The objection claims the report is unfair because it attempts to “[weigh] the evidence and [determine] the truth, something reserved for the jury. Also, all justifiable inferences appear to have been given to the Defendants and not to the Plaintiff.”
Tennant argues he was “scared off” from the meeting, and did not leave voluntarily.
In conclusion, in his objection to the recommendation for the first claim, he ends with an argument that the City of Georgetown should not be dismissed from litigation as all parties on city council were at fault: “Barber threatened Plaintiff, ignored the Mayor’s gavel and was never disciplined. Scoville endorsed Barber’s behavior and never enforced the ordinance requiring disruptive speakers to be removed. This was all done in front of the City Council and they never objected, during or after, in an official manner….”
With regard to the second claim, the magistrate wrote it was to be dismissed because in order to prove a conspiracy, the evidence must show there was no rational basis for the difference in treatment.
Tennant argues he was treated differently, and that he did show there was no rational basis for the different treatment. “Plaintiff’s Memorandum… clearly shows disparity of treatment and due process violations, but it was ignored in the R&R,” the opposition states.
A second part of the claim dismissal states the “Plaintiff does not dispute this evidence….” Tennant responded, “Plaintiff has vigorously disputed the evidence cited above.”
He also disputes the magistrate’s statement that Tennant has a problem with the way the city responds to FOIA requests.
He argues “this is not about how the City responds to Plaintiff’s FOIA requests. It’s about how the City impermissibly criminalized Plaintiff’s protected right to criticize government officials and subjected him, and only him, to police presence requirements without due process….”
After making several general objections at the conclusion of his objection document, Tennant ended with a plea the court review his documents and “reject the fatally flawed Report and Recommendation.”
The defendants will also have an opportunity to file objections to the report and recommendation before U.S. District Judge Richard M. Gergel gives the final ruling on the case.