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IN THE
UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE THE PUTNAM PIT, INC., and GEOFFREY DAVIDIAN Plaintiffs
Case No. 2-97-108 v.
Judge Higgins CITY OF COOKEVILLE,
and
JURY TRIAL DEMANDED JIM SHIPLEY, in his official capacity as City Manager of the City of Cookeville, Defendants } PLAINTIFFS'
MEMORANDUM OF LAW AND FACTS IN RESPONSE
TO MOTION TO DISMISS Plaintiffs respond to Defendants' Motion
for Summary Judgment as follows: Statement
of Facts The Plaintiffs engage in the publishing of
a newspaper and web page titled "The Putnam Pit," which consists of
hard-biting, satirical, and openly critical news and opinion, regarding, inter
alia, the City of Cookeville government. Mr. Davidian's stated goal as
editor and publisher is to create an atmosphere in which corruption can not
occur. (Plaintiff's Affidavit dated August 7, 1998). The Defendants have
persistently obstructed the Plaintiffs' legal newsgathering and further
denied Plaintiff access to the City of Cookeville's web page as part of an
effort to stifle opinion unfavorable to present regime controlling
municipality. (Plaintiff, Geoff Davidian, Response to Defendant's
Interrogatory Number 1a., p. 14-20). The Defendants and Plaintiffs have been
involved in other litigation over public records and other actions by the
city that allegedly violated Plaintiff Geoffrey Davidian's constitutional
rights. (Plaintiff's Affidavit dated August 7, 1998). Despite this long
history, Plaintiff Geoffrey Davidian has acted as the professional journalist
he is and has not been rude to any employee of the Defendant. Id. Acting as a member of the press and as the
employee of a Tennessee corporation, the Putnam Pit, Inc., Plaintiff Geoffrey
Davidian in July of 1997 sought a copy of the electronic computer file
containing the names, license numbers and dates of violation for outstanding
municipal parking tickets. (Plaintiff, Geoff Davidian, Response to
Defendant's Interrogatory Number 1a., p. 16-17). Defendants refused to allow
inspection or provide a copy of the electronic file of the parking tickets
but instead offered to print out dozens of pages of assorted information.
(Plaintiff's Affidavit dated August 7, 1998). This refusal and side-step
evasion was in spite of the Defendants, through the city attorney, facial
offer to allow Plaintiffs to inspect records "in whatever form the City
of Cookeville keeps the record." (See Exhibit 6 to Defendant's Motion
for Summary Judgment). When Plaintiffs determined that the parking
ticket data provided was worthless, in that there were significant errors and
outdated information, Plaintiff Davidian told Police Lt. Nathan Honeycutt
that he intended the information to be current. Plaintiff was not offered any
satisfactory explanation as to why the paper tickets were inaccurate.
(Plaintiff, Geoff Davidian, Response to Defendant's Interrogatory Number 1a.,
p. 16-17). Plaintiff Davidian on August 12, 1997,
asked Defendant, Jim Shipley, "cookie" files that would show
whether city computers had been browsing to Internet sites not consistent
with government employment. This information was sought for the publishing of
a story about Internet usage by city employees. (Id. at p. 17-18.). The City Manager for the City of
Cookeville, Jim Shipley, at first demanded an arbitrary sum of $327.60
deposit to pay someone to inspect the computers, then announced as a pretext
to prevent further investigation and access into public records that even
with payment access would be denied pending a determination of whether the
files were public. ( Id. at p. 18). Indeed, the very records of
Internet usage for which the Plaintiffs were arbitrarily being charged a
significant sum were supposedly being deleted on a daily basis (though this
fact was not apparent to the Defendants' computer manager, Steve Corder when
he overestimated the time involved for research which Plaintiffs did not want
nor request). (Id.; Deposition of Steve Corder p. 12-13, 29-31, 40;
Deposition of Jimmy Dale Shipley, p. 23-29). No other member of the press or
public has ever been required to pay an advance sum of this amount for any
records request for research, inspection, or for copying. (Deposition of
Jimmy Dale Shipley, p. 23). On October 1, 1997, the Plaintiffs wrote to
Defendant Jim Shipley, seeking access to public records concerning
"cookie files" and police department parking tickets. On October 2,
1997, via e-mail, Defendant Jim Shipley, stated that nobody would be
available to provide access to police data on parking tickets, and that the
Plaintiff would have to reschedule. Further, he stated that Plaintiff would
not be allowed to inspect the "cookie" files maintained on city
computers. On Friday, October 3, 1997, when Plaintiffs requested to see even
the paper documents of parking tickets from the individual who normally
assisted Mr. Davidian with the inspection of parking ticket records,
Plaintiffs were told to contact the City Manager's office. Plaintiffs were
then told they would not be allowed to see any parking ticket records
regardless of form.that day. (Plaintiff, Geoff Davidian, Response to
Defendant's Interrogatory Number 1a., p. 18-19). On October 31, 1997, Plaintiffs sent by fax
and electronic mail a request to inspect the city's Internet records
including browser files and cache files. All records relating to the City's
use of the Internet will hereinafter be referred to as the "Internet
records." On October 31, 1997, via e-mail, Defendants, stated that such
files were not public records and the files were destroyed daily. (Id.,
p. 20-21). Plaintiffs requested and were allowed to
view the Internet files maintained on the City of Cookeville's computers on
the morning of November 3, 1997. Plaintiff's inspection revealed no
information was available. Later in the afternoon, when Mr. Davidian asked for
another inspection on the belief that the employees of the City had been
accessing the Internet during the day, the Defendants refused further
inspection. (Id., p. 19-20). On three occasions, in the fall of 1997,
the Plaintiffs asked that the Putnam Pit web page be included on a list of
local Internet sites linked to the City of Cookeville's web site. At that
time the City of Cookeville had a general offer to link other web sites to
the Defendant's web page. (Id., p. 20). The Putnam Pit web site was
the only site for which a significant delay and ultimate denial for a link to
the City's web page. (Deposition of Steve Corder, p. 21-22, 26-27). The
reason for the denial of a link while other members of the public were
allowed to post a link on the City's web page was the perception of
controversial content of the Plaintiffs' writings. (Deposition of Steve
Corder, p. 22-23). On October 31, 1997, Defendant Shipley stated by
electronic mail that he would not include the Putnam Pit as a link, and that
he had decided to exclude all but not-for-profit entities as links.
(Deposition of Jimmy Dale Shipley, Exhibit 1, p. 3, Fax Subject: Response to
your fax dated 10-31-97 12:15 p.m.). Nevertheless for-profit entities were
retained on the list until at the next week. (Plaintiff's Affidavit dated
August 5, 1998). Plaintiffs were denied access for 19 days when the City's
web links were open to web pages concerning Cookeville before other
commercial links were removed. Id. Even if the Putnam Pit were a
non-profit entity, the Putnam Pit would not have been allowed a local link to
the City of Cookeville web page. (Deposition of Jimmy Dale Shipley, p.
53-54). Argument I. PLAINTIFFS' FIRST AMENDMENT RIGHTS OF
ACCESS TO PUBLIC RECORDS IN COMPUTER AS WELL AS PAPER FORMAT WERE VIOLATED. The issue on which a portion of this
present case turns is whether the Plaintiffs seeking of Internet records and
parking ticket records from the City of Cookeville, Tennessee is part of the
stock of information the government is required to make available to the
public, i.e., the type of newsgathering that the First Amendment protects.
The Defendant's Brief only argues that the Plaintiff have no right of access
to Defendant's computer files ignoring the denial of access to parking ticket
records on October 3, 1997 in paper form. The complaint sets forth two separate
denials of access to public records which the Plaintiff asserts were
violations of the First Amendment Freedom of Press guaranty. First, after
giving Plaintiffs the bureaucratic runaround on October 3 1997, the
Defendants did deny access to any parking ticket records even in paper form.
(Plaintiff, Geoff Davidian, Response to Defendant's Interrogatory Number 1a.,
p. 18-19). Defendant does not even address this matter in their motion.
Plaintiff agrees that denial of access to the parking ticket records to
download in electronic form is not a per se violation of the First
Amendment, but denial to inspect the computer records as well as paper
records of parking violations with the purpose obstructing the publication of
news stories is. Second, although dependent upon whether the records of
Internet usage be considered public records, the First Amendment was
implicated when the Plaintiffs were denied access to the Internet files. The
history between the parties as a whole show that a material question of fact
exists as to the intent and purposes of delaying and denying access to the
parking ticket records and other city records. (Plaintiff, Geoff Davidian,
Response to Defendant's Interrogatory Number 1a.). Defendants acknowledge that newsgathering
qualifies for some First Amendment protection. The United States Supreme
Court has acknowledged the need for such protection to give meaning to the
First Amendment in cases such as Branzburg v. Hayes, 408 U.S. 665,
728, 92 S.Ct. 2646, 2673 (1972) ("No less important to the news
dissemination process is the gathering of information.... [F]or without
freedom to acquire information the right to publish would be impermissably
compromised."); First National Bank of Boston v. Bellotti, 435
U.S. 765, 783, 98 S.Ct. 1407, 1419 (1978) ( "[T]he First Amendment goes
beyond protection of the press and the self-expression of individuals to
prohibit government from limiting the stock of information from which members
of the public may draw."); and Richmond Newspaper, Inc. v. Virginia,
448 U.S. 555, 584, 100 S.Ct. 2814, 2831 (1980) ("[T]he First Amendment
protects the public and the press from the abridgment of their rights of
access to information about the operation of their government, including the
Judicial Branch." STEWART, J. concurring.) Plaintiffs have been thwarted
in their ability to function as an investigative newspaper by, inter alia,
the Defendants' denial, delay, and obstruction of Plaintiffs access to public
records. None of the cases cited in Defendant's
brief stand for the proposition that the press has no constititutional rights
in the course of gathering news. Capital Cities Media, Inc. v. Chester,
797 F.2d 1164 (3rd Cir. 1986), for example, while having facts
somewhat similar to the present case did find a constitutional right to
access government records, but found, against a strong dissent, that the
particular records sought therein were not the type of records to which
access was traditionally allowed. Tennessee's Public Records Act, which
grants access to certain public records, has established a tradition of
access to the records sought. To arbitrarily ignore the implications of this
state law is to deny the constitutional right to gather information. Plaintiffs seek access to public records
pursuant to Tennessee Code Annotated §10-7-503 which establishes a broad
right of public access to governmental records and states as follows: "All state, county and municipal records
... shall at all times, during business hours, be open for personal
inspection by any citizen of Tennessee, and those in charge of such records
shall not refuse such right of inspection to any citizen, unless otherwise
provided by state law." This statute makes the municipality's
records available to the public, thus to seek these records for purposes of
disseminating the information to the public is not to seek special access,
but rather to seek the same access any other person would be accorded under
the law. The statute does not say the records are available when the
Defendant feels in a generous mood and its employees are not brooding over
some mis-perceived slight, nor its specially designated employee is scheduled
to work, nor after the person requesting access to the public records has
given written notice days in advance. Defendants cite Houchins v. KQED, Inc.,
438 U.S. 1, 98 S.Ct. 2588 (1978), a case involving the news media seeking
special access to a county jail. The case is distinguishable by the very
nature of the special access sought. As explained therein, "[t]he
Constitution does no more than assure the public and the press equal access
once government has opened its doors." Id., 438 U.S. at 16, 98
S.Ct. at 2597 (Stewart, J., concurring in judgment). Plaintiffs in the
present case seek only access accorded under state law when the government
opened its doors by statute to allow inspection of records. Viewing public
records at a city hall hardly equates to a reporter demanding access to
interview prisoners in jail. Analysis under Richmond Newspaper's
two-tier test(1) supports Plaintiffs'
contention that access to public records in the course of gathering of news,
is protected constitutionally. The state law establishes a tradition of
accessibility for the general public to access public records. The records
sought also can be shown to be similar to other records traditionally made
available to the public. Internet files, i.e. computer generated files, such
as "cookies" or "history files," showing which web sites
a computer user accessed when using the Internet, are no different from
telephone logs or any other type log of activity by a government employee.
(Plaintiff's Affidavit dated August 7, 1998). The form of recording may
appear newfangled but the function of logging information is not.
Furthermore, public access would play a significant positive role in the
functioning of the municipal government's operations. Plaintiffs seek to open
public discourse on the efficiency and effectiveness of certain government
processes. Thus the Richmond Newspaper test is met. To further support the argument that
Internet records are public records, the Tennessee statute defining public
records is clear, absent a strained interpretation to find otherwise. "Public record(s)" or "state
record(s)" means all documents, papers, letters, maps, books,
photographs, microfilms, electronic data processing files and output, films,
sound recordings, or other material, regardless of physical form or
characteristics made or received pursuant to law or
ordinance or in connection with the transaction of official business by
any governmental agency. Tenn.Code Ann. § 10-7-301(6) (1992)
(Emphasis added). T.C.A. § 10-7-505 provides a remedy to the
citizen who has been denied access to any public record, through the filing
of a petition in the chancery court of the county where the record is
located. The statute allows for an expedited hearing. Section (d) of that
statute instructs the courts that: "... this section shall be broadly
construed so as to give the fullest possible public access to public records."
(Emphasis added). The Tennessee Supreme Court has indicated
that the Tennessee Public Records Act "sets up a presumption of openness
to records of governmental entities, the burden is placed on the governmental
agency to justify nondisclosure of the records. See Memphis
Publishing Co. v. City of Memphis, 871 S.W.2d 681, 684 (Tenn. 1994)
(Allowing press access to deposition transcripts from bankruptcy proceedings
in possession of government attorneys). The Tennessee Supreme Court therein
noted that Tennessee courts have been vigilant in upholding the legislative
mandate of allowing broad access to records unless otherwise confidential
under Tenn.Code Ann. § 10-7-504, "even in the face of serious
countervailing considerations." Id. The Tennessee Supreme Court in Memphis
Publishing Co. reversed the Court of Appeals' narrow definition of the
term, "records," noting that the term also includes "material
made or received in connection with the transaction of official
business. Id. at 687. A restrictive definition would not comport with
the Tennessee Legislature's mandate of ensuring the broadest possible access
to public records. Id. Under a broad construction of the statute,
the access which Plaintiffs seek, namely inspecting computer files of parking
violations and Internet usage, is nothing special but simply traditional
access to public records maintained by the City of Cookeville. It is a
question of fact as to whether the real purpose of the denial of access to
the various records was part of some unconstitutional, content-based scheme
to obstruct the press or whether the Defendants were denying access due to overly
intrusive requests by the Plaintiffs. II. PLAINTIFFS HAD A FIRST AMENDMENT
RIGHT TO LINK TO THE CITY'S WEB PAGE AS A PUBLIC FORUM. "[W]hen the Government has
intentionally designated a place or means of communication as a public forum
speakers cannot be excluded without a compelling government interest." Cornelius
v. NAACP Legal Defense & Education Fund, 473 U.S. 788, 800, 105 S.Ct.
3439, 3448 (1985). As noted in Defendant's brief at page 11, the government
must intend to make the property generally available to speakers. (Citing Arkansas
Educational Television Commission v. Forbes, __ U.S. ___, 118 S.Ct. 1633,
1641-42, __ L.Ed.2d ___ (1998)). A designated public forum is "property
that the State has opened for expressive activity by all or part of the
public." International Society for Krishna Consciousness, Inc. v. Lee,
505 U.S. 672, 678, 112 S.Ct. 2701, 2705, 120 L.Ed.2d 541 (1992) (hereinafter,
"ISKCON"). "If the government excludes a speaker who
falls within the class to which a designated public forum is made generally
available, its action is subject to strict scrutiny. Forbes, at 1641.
(Citations omitted). Even if a forum is a nonpublic forum, the
government can not restrict speech in whatever way it likes. Forbes,
at 1643. (Citing ISKCON, 505 U.S. at 687, 112 S.Ct. at 2712). "
To be consistent with the First Amendment, the exclusion of a speaker from a
nonpublic forum must not be based on the speaker's viewpoint and must
otherwise be reasonable in light of the purpose of the property." Id.(citing
Cornelius, 473 U.S. at 800, 105 S.Ct. at 3447-3448. The government can
not restrict access to a nonpublic forum because a public official opposes
the speaker's view. Id. at 1641. A state cannot "enforce exclusions
from a forum generally open to the public even if it was not required to
create the forum in the first place. Missouri Knights of the Ku Klux Klan v.
Kansas City, Missouri, 723 F.Supp. 1347, 1352 (W.D.Mo. 1989) (Citing, inter
alia, Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 376
(1981)). A designated public forum may only be removed in a manner consisted
with the First Amendment. Id. The City of Cookeville had clearly
designated its web page on the Internet as a forum open to the public by
allowing other web pages to link up with the City's page. Steve Corder, the
City of Cookeville's Computer Operations Manager, made the decision as to who
could post a link on the City's web page. (Deposition of Steve Corder, p.
19). The opportunity to post a link, and thus access this forum, was
available to any business or organization in the City of Cookeville that had
their own web site. Id. at p. 20. A copy of the local links existing
at the time the Plaintiffs made a request to be linked is set forth as
Exhibit A to the Affidavit of Geoffrey Davidian filed with this response.
These links were not removed until November 3, 1997. (Plaintiff's Affidavit
dated August 7, 1998). From October 15, 1997, when Geoffrey
Davidian formally e-mailed his request to be linked until November 3, 1997,
other entities were allowed access to the local links page for the City of
Cookeville. Id. Yet the City of Cookeville through its employees
continued to deny access to the Plaintiffs. Id. The Plaintiffs'
request was handled differently from every other request in that Steve Corder
delayed establishing a link until he received approval from his boss.
(Deposition of Steve Corder, p. 21-22, 26-27). The reason for denying the
Putnam Pit a link to the Defendant's web page was content based. Id.
at p.22-26). The Putnam Pit was not linked because the city employee/decision
maker deemed the publication controversial. Id. Posting a web link to the City of
Cookeville's web page was generally available to the public; therefore, the
local links of the City's web page was a designated public forum. Yet when
the Plaintiffs sought access they were denied. There is a question of fact as
to whether the denial of access was intentional discrimination based on the
Plaintiffs' views Absent a compelling interest, the City was engaging in
blatant censorship of ideas they disapprove. Even by the current criteria for being
linked to the City of Cookeville's web page, the Plaintiffs' web page, The
Putnam Pit, arguably should be entitled to a local link. According to the
City Manager, Jim Shipley, a web page "has to promote industry, tourism,
the economic welfare of the City of Cookeville." (Deposition of Jimmy
Dale Shipley, p. 52). The Putnam Pit, in its paper editions and on the
Internet, is a publication that discusses these very matters. (See Exhibit 8
and 9 to Defendant's Motion for Summary Judgment, Plaintiff's Affidavit dated
August 7, 1998). One may take different view over the content and manner of
discussing the activities in Cookeville, but the vague criteria set forth can
not exclude the Putnam Pit because the public officials have a different
viewpoint as to how to best promote Cookeville. The Plaintiffs are of the
opinion that the public will view Cookeville favorably if they see a town
with a news publication that seeks to root out corruption. (Plaintiff's
Affidavit dated August 7, 1998). Therefore, the Plaintiffs should be
entitled to, not only damages for the period of time in which they were not
allowed on the City's web page, but also injunctive relief requiring the City
of Cookeville to provide a local link. III. DEFENDANT'S CONDUCT IN DENYING
ACCESS TO PUBLIC RECORDS AND IN DENYING THE PUTNAM PIT WEB PAGE LINK WITH THE
CITY'S WEB PAGE LINK WAS ARBITRARY AND CAPRICIOUS
VIOLATING THE DUE PROCESS AND EQUAL PROTECTIONS RIGHTS OF
PLAINTIFF SECURED BY THE FOURTEENTH AMENDMENT. The Defendants cited in their argument
regarding the applicability of the First Amendment to a public records
request the case of Capital Cities Media, Inc. v. Chester, 797 F.2d
1164 (1986). Capital Cities Media, Inc. involves a newsgathers
attempts to gain access to records from a state agency regarding water
contamination in Pennsylvania. While the court therein denied the First
Amendment claim, it allowed further discovery so that plaintiff-newspaper
could support its equal protection claim. As in Capital Cities Media, Inc.,
Plaintiffs do state a claim based on the Equal Protection and Due Process
clauses in the Fourteenth Amendment. An equal protection claim was also
brought regarding an access to public records. See Amelkin
v.Commissioner, Dept. of State Police, 936 F.Supp. 428 (W.D.Ky. 1996). See
also McCoy v. Providence Journal Co., 190 F.2d 760 (1st
Cir. 1951). Defendants cite Hampton v. Hobbs,
106 F.3d 1280 (6th Cir. 1997) for establishing that the rational basis
standard is applicable. While one could argue that a fundamental right, i.e.
freedom of speech and the press, would require a stricter scrutiny,
Defendants can not justify their actions as being anything other than an
irrational attempt to obstruct and hinder Plaintiffs because of animosity
developed due to the criticism published in their newspaper. Plaintiffs were obstructed in their access
to records in ways other members of the public and press were not.
(Deposition of Jimmy Dale Shipley, p. 36, 37-41, 44-45, 49-50, 68). Plaintiff
Geoffrey Davidian was required to fill out paperwork and pay deposits that no
other member of the press has been required. (Plaintiff's Affidavit dated
August 7, 1998). Plaintiffs have been singled out by Defendants to undergo
whatever bureaucratic maze they can create to obstruct and hinder the
publication of the Putnam Pit. This discrimination is all the more invidious
because it involves what is tantamount to censorship of the press by local government
officials. News media favorable to the City of Cookeville's officials have
not had to pay deposits or fill out paperwork. Nor have others in the press
or public been given the official runaround as Plaintiffs have been. Perhaps nowhere is it clearer that
Plaintiffs were treated differently on an unconstitutional basis than Steve
Corder's statements that he did not establish an internet link between the
Putnam Pit and the City of Cookeville because he knew the Putnam Pit was
controversial which he was based on some unexplained irrational thoughts
among City of Cookeville employees and most significantly, the content.
(Deposition of Steve Corder, p. 22-23) Many questions of fact exist as to why
the Putnam Pit was not given parking ticket records on October 3 when other
newspapers such as the Herald Citizen daily inspect police reports unimpeded.
(Deposition of Jimmy Dale Shipley, p. 44.). A fact that alone contradicts
Defendants assertions that Plaintiffs are the most demanding of the city's
resources for information. Substantive due process protects citizens
from arbitrary and irrational acts of government. Parkway Garage, Inc. v.
City of Philadelphia, 5 F.3d 685, 692 (3rd Cir. 1993)
(Citations omitted). "A violation of due process is proven: (1) if the
government's actions were not rationally related to a legitimate government
interest; or (2) 'if the government's actions in a particular case were in
fact motivated by bias, bad faith or improper motive. . . .'" Id.
In the present case, the Plaintiffs assert that a question of fact exists as
to whether the requirement of prepayment of a deposit for a records request
in an amount based on arbitrary estimates by the Defendants was rational.
Furthermore, a question of fact exists as to the motivation for the charge -
whether for example it was calculated to discourage the request. The rule that Defendant derives from Graham
v. Conner, 109 S.Ct. 1865, 1871 (1989),(2)
that a plaintiff cannot invoke a substantive due process claim where it has
brought a § 1983 action based on the First Amendment is not supported by any
reasonable reading of Graham. As to the arbitrary and capricious nature
of the Defendants' alleged acts, consider what rational basis the Defendant
Shipley had for his requiring a deposit calculated down to the very penny
before Plaintiffs could see the Internet files. The manner in which he
calculated the deposit is indicative that his chilling demand for a
considerable sum in advance was not rationally related to any proper purpose.
How does one rationally determine a set number of hours to discover that the
Internet files do not exist? Defendants have subsequently stated that there
are no Internet files. So how did he arrive at the sum required for the
deposit? Furthermore, the assertion of the
Defendant's Computer Operations Manager that he was attempting to provide the
Plaintiffs with more information rather than less (including information and
research Plaintiffs had never asked for)(Deposition of Steve Corder, p. 9-10,
12-13, 29-31, 39-40) would have been extremely unusual in light of
Defendants' position of not responding to Plaintiffs purportedly demanding
requests. When money was going to be charged, all of a sudden the Defendants
are ready to provide half of its Computer Operation Manager's workweek.
Indeed the estimate of the time needed for Steve Corder to discover records
that he had supposedly set the computers to delete on a daily basis is
questionable. (Deposition of Steve Corder, p. 30, 37-38, 40). Plaintiffs
position is that the requirement for prepayment in excess of $300 was an
arbitrary yet calculated effort to discourage Plaintiffs from pursuing not
only the Internet records request but other future requests as well. There
was no rational basis for requiring a significant deposit for research that
Plaintiffs had not requested, demanded, nor required. Nor have the Defendants met any other
standard of proof required for summary judgment in establishing a legitimate
government interest in treating Plaintiffs so arbitrarily. Their
unsubstantiated claims, which do no more than attempt to spin the notion that
Mr. Davidian is unreasonable, have no place in a motion for summary judgment.
Accordingly and based on the foregoing, their motion to dismiss must fail. THE COURT
SHOULD EXERCISE SUPPLEMENTAL JURISDICTION OVER PLAINTIFFS' STATE LAW OPEN
RECORDS ACT CLAIM. Defendants, not Plaintiffs, chose this
Court to exercise jurisdiction over the case. Now they seek to remand a
portion of the case, i.e. the state law Open Records Act claim, claiming its
presents a novel and complex issue of state law. Defendants would seek to
increase the litigation burden of two judicial systems and the limited
resources of the Plaintiffs. This is unnecessary. First, as noted in Plaintiffs' Memorandum
of Law and Facts in Support of Motion for Preliminary Injunctive Relief and
in argument set forth above, the issue of whether Internet records are public
records requires only a straightforward reading of the state statute. It is doubtful
that every type of record maintained by the State of Tennessee and its
municipalities has been the subject of litigation. Yet the Tennessee statute
clearly accounted for the future by defining public records as "other
material, regardless of physical form." See Tenn.Code Ann. §
10-7-301(6). There is nothing complex or novel about straightforward
interpretation of the clear language of a statute. The fact that the City of Cookeville does
not print out Internet records does not remove them from the definition of
public records. How convenient it would be to evade compliance with the
Tennessee Public Records Act simply by creating new technology to store
records and then insisting that the records are not public records because of
a self-imposed change of form. The issue presented on the Internet records,
while somewhat novel because the medium of the Internet is still in its early
years, is not complex because the Tennessee legislature had the foresight to
allow for new technologies. THE
ELEVENTH AMENDMENT IS NOT APPLICABLE WHERE THE DEFENDANT CONSENTED TO THE
JURISDICTION OF THE FEDERAL COURT BY REMOVAL. As noted in Atascadero State Hospital v.
Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 3145 (1985), if the State
waives immunity by consenting to suit in federal court, the Eleventh
Amendment does not bar the action. Therefore, by the Defendants choosing this
forum, a federal court, they have waived any immunity deriving from the
Eleventh Amendment. To deny a remedy to which Plaintiffs are entitled after
the Defendants chose the forum would be manifestly unfair and condone the
Defendants' delaying tactics. Conclusion WHEREFORE, Plaintiffs respectfully request
this Court deny the Defendants' Motion for Summary Judgment and allow the
case to proceed to trial. Respectfully, ____________________________ Samuel J. Harris BPR#17392 P.O. Box 873 Cookeville, TN 38503 (931) 372-7227 Certificate
of Service I hereby certify that a true and correct
copy of the foregoing was served on the Defendants, by personal delivery to
the office of T. Michael O'Mara, 317 West Spring, Cookeville, Tennessee, this
10th day of August, 1998. Samuel J. Harris 1. Defendant refers to
"the two-tier Richmond Newspapers test" in Defendants'
Memorandum in Support of Motion for Summary Judgment (hereinafter,
"Defendants' Brief") at p. 8. Plaintiff writes on the assumption
that this test is the two-tier enunciated in Press-Enterprise Co. v.
Superior Court of California, 478 U.S. 1, 8-9, 106 S.Ct. 2735, 2740-41,
92 L.Ed.2d 1 (1986). The test therein can be summarized as: First, because of a 'tradition of
accessibility implies the favorable judgment of experience' ... [courts are
to consider] whether the place and process has historically been open to the
press and general public. ... Second, [courts are to consider] whether
public access plays a significant positve role in the functioning of the
particular process in question. 2. As cited in
Defendants' Brief at p. 14. |
