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Snellville's Mayor Kautz Served with Ante Litem Notice Over Alleged Civil Rights Violation

Mayor Kelly Kautz is accused of violating Marilyn Swinney's First Amendment rights during a July council meeting.

A Snellville woman is threatening to sue Mayor Kelly Kautz and the City of Snellville because she says her civil rights were violated during a July City Council meeting. They have been served with an ante litem notice for "restrictions placed on [Marilyn Swinney's] speech."

"I really feel like this had to be done," Swinney, a Snellville resident, told Snellville Patch. "And I said from the beginning that we’ll let the judge decide."

A lawsuit has not yet been filed, but could be if a settlement is not reached.

Swinney, at her attorney's recommendation, will accept a $13,000 settlement in lieu of going to court. They are alleging that Swinney's civil rights were violated when the mayor cut her off during the public comments portion of the council meeting.

Swinney is being represented by the Counts Law Group, based in Atlanta.

"Ms. Swinney’s speech was cut off early on explicitly because of the content of the items she sought to discuss [the Mayor’s recent Mayors Report]," according to Swinney's attorney, Cynthia Counts. "Mayor Kautz’s move to silence Ms. Swinney violates both the United States and Georgia Constitutions."

From the official ante litem notice:

"In declaring Ms. Swinney “out of order,” and unilaterally ordering that the microphone be cut off, Mayor Kautz violated the procedure for decorum issues in sec. 2-53(3), which clearly  provides that once the chair rules that an individual is “out of order,” “[a] majority vote of the city council will rule on the point of order.”

"Instead, Mayor Kautz unilaterally ordered that Ms. Swinney’s comments be truncated, with no vote on the propriety of her arbitrary ruling that Ms. Swinney was 'out of order.'"

Snellville Patch previously reported that at the time set aside for public comments, Swinney planned on saying she was surprised at the mayor's report.

"And that was as far as I got," Swinney said.

Her plan, she said, was to question the mayor's assertion that she did not believe in the council.  Swinney wanted to cite specific examples of successes the council has had: the Farmers' Market, Snellville Tourism and Trade, the community garden, and a successful fundraiser for Aimee Copeland. 

The most recent citizen survey was the latest in a string of positive things, according to Swinney.

"I never got to say any of that," she said.

Instead, she said she was so flustered and embarrassed, she barely remembers what she said.

"I felt intimidated," she said.  "I felt humiliated.  I wanted the ground to swallow me up."

 Mayor Kautz said that when Swinney came to the podium, Kautz "knew where it was going."

"I asked for the mike to be turned off so that she would listen to me," Kautz said.  "I reminded her of our personal decorum policy, and then had the mike turned back on."

This can be seen in the video above.

Specifically, Ms. Swinney intends to file suit alleging violations of her First Amendment Rights under the United States Constitution, violations of her rights under the Constitution of the State of Georgia, and violations of Georgia State law, including, but not limited to, intentional infliction of emotional distress.

"We believe this demand is more than fair, and is consistent with prior settlements our firms have reached in cases specifically involving restrictions on speech at government meetings," wrote Counts, Swinney's attorney. "For instance, the undersigned counsel recently resolved a similar case in Smyrna where an individual was prevented from speaking and detained for several hours by police authorities. After filing federal civil rights litigation, the lawsuit eventually settled for $85,000. Because of the patently unconstitutional acts of Mayor Kautz and the City of Snellville, liability in this matter is clear."

, wrote on its website this afternoon that "Kautz’s disturbing history of abusing the power of her office will be costing taxpayers some money in the future and probably has in the past. We don’t think that should be allowed to happen without consequences. Kautz should be held accountable for her gross violations of the public trust."

City Attorney Tony Powell could not be reached immediately for comment.

Snellville Patch will continue to update you with this story as more information is available.

Gena Buskirk Ford October 13, 2012 at 02:26 PM
Ms. Huskey: aren't you violating the first amendment rights of those who commented on this article, even if you believe ithey're "personal attacks"? I don't like personal attacks either, but they have a right in our country to express them. Aren't you doing exactly what Mayor Kautz is being accused of doing?
Crystal Huskey (Editor) October 13, 2012 at 03:25 PM
I understand your point, but personal attacks are against Patch's terms of use. So as editor I have to make sure people understand and follow those policies.
Steve Mayo October 13, 2012 at 03:45 PM
It seems we've lost the distinction between free speech as a citizen and the rights of the private ownership of a business. As owner of a website, I can restrict or remove any comments I want. It's MY business and is not the same as YOUR right to free speech. Regardless of the right or wrong of what happened in the meeting, I think if someone who wants to do what is right for Snellville, they would try to keep it out of the courts. There is enough waste of public funds without incurring more over someone's hurt feelings.
MWTW October 13, 2012 at 05:26 PM
As I recall, this was the same women that verbally attacked the Mayor in a public forum and swore at her. Perhaps the Mayor will sue her??? I think that would be the correct action. Maybe some of these suit happy freeloaders will get the message and back off. This woman has no damages and has either been "pushed" into this by "others", or she is trying to make a quick buck. Either way she is embarrassing herself and the city. This is just more of the same "Snellville Politics". I wonder who is actually behind this or who was encouraging it? Municipal politicians get sued all the time. Ask the County Commissioners how many lawsuits we have paid to defend in the last ten years. This is not news! It is another sorry attempt to discredit our mayor and, once again, will make the news and Snellville still be the laughing stock of Atlanta. Thanks! For the record...I am a republican and didn't vote for Mayor Kaust. However, she is in office and will continue to be in office. Meanwhile, her defamers continue to make a mockery of the city and continue to stop any progress that could be made. STOP WASTING OUR TIME AND MONEY! As some of the hardworking citizens are trying to improve the city and attrack more businesses, the detractors continue to drive away any business that might possibly consider moving here. BOOM....shot us right in the foot. To the members of Market Street, STAT, and DDA I say good luck. You are fighting an uphill battle.
MWTW October 13, 2012 at 05:29 PM
Thanks Diana. I agree.
MWTW October 13, 2012 at 05:31 PM
Thank you Crystal.
Jerome Williams October 13, 2012 at 10:19 PM
This Kautz lady been bad news for a lot of years. She vote against everything good for Snellville. It other people who do the work that make Snellville get better and better. And hey Diana how you like to have someone take your rights. I fought long time for rights and if someone try to take them I gonna fight them. I seen this mayor woman do this stuff before. This Ms. Swinney she do the right thing so other people dont lose their rights.
Marian Copeland October 14, 2012 at 12:16 AM
Really MWTW. You accuse Ms Swinney of swearing at the Mayor? When? On the other hand your Mayor's denial of Swinney's rights is documented on tape. I, for one of many, think it is high time that the abuse of power ends. Mare
Marcy20 October 14, 2012 at 01:46 AM
I didn’t know the first amendment provided you with the right to use a microphone. $13,000 for 23 seconds, $565 a second. That’s a nice little payout. Shame on this woman for abusing an already overburdened system with such frivolity. I hope the mayor does NOT settle this suit and instead stands up for herself and for her actions. If I ever happen to run into this woman when I’m out and about in Snellville, you can bet I’ll be using my first amendment right to let her know how I feel about her actions.
MWTW October 14, 2012 at 02:24 PM
I agree. You know it's sad that people allow their emotions to reach the peak that they lash out at others with negativism and hatred. I'm not just refering to this woman, but to those in Snellville that can't accept that Mayor Kautz is our Mayor and will be until she is voted out. Nothing can be done to change that so venting in a public forum (or a blog) does nothing but waste the time of our elected officials and ultimately hurts the reputation of our city. Negativism won't chase her out of office. The more publicity she gets, bad or good, the more popular she will become. There's no such thing as bad publicity when dealing with elections. This lawsuit is a joke. Even the attorney, knows that it has no merit. If this woman truely believes she was harrassed and had emotional problems because of it, the lawsuit would be for hundreds of thousands of dollars, not the silly sum of $13,000! If the attorney thought it had any merit, the price would be much higher. He is betting that the city will say, "Oh well, just pay it, it's cheaper than defending it". My opinion is: If the city pays this, get ready, the locals will be lining up to file suit; especially those that have such hurt feelings over the fact that Kelly Kautz won the election. I say fight it. These attempts to discredit the Mayor harm the reputation of Snellville. Stop hurting the city and stop wasting our money! If you don't like situation, start planning for the next election.
Diana October 14, 2012 at 07:35 PM
I agree. What a scam. You hurt my feelings so pay me $13,000.00 This is whats wrong in America. The tax paying citizens should demand that no monies be paid to this woman/her lawyer. :(
Jerome Williams October 15, 2012 at 12:57 AM
Ha you people got to be phony. No one use real name and they try to make like its this Ms Swinney fault that the mayor act bad. Friend of mine say he see this Kautz woman try to always be victim. Kautz did wrong. She need to pay so she don't do wrong to other people too. Hey MWTW you think this a joke. How bout someone take your rights away. You gonna sit around and not do nothing. If you that way I feel sorry for you.
MWTW October 15, 2012 at 02:01 AM
Thanks. Just keep proving my point.
Rob Smith October 16, 2012 at 10:59 AM
The 1st amendment is what this is about. To deny a person's right to free speech is indeed a crime. Ms Swinney is standing up for the rule of law. Someone needs to. If everyone there that spoke was able to use a mic, then by law Ms Swinney had the right to use the mic as well. By blaming the victim of a civil rights violation you are saying it is alright to violate a persons right to free speech if you do not agree with what this person says, or in this case might say. What happens when you want to speak out next time and someone decides they do not want to hear you or allow you to speak? What happened was wrong. In the most dangerous way, it was wrong. Ms Kautz admitted in the CBS interview she denied Ms Swinney's right to speak. If you are a fan of Ms Kautz, defend her actions if you can. Do not blame Ms Swinney for standing up and defending our rights. There is clearly an us and them thing going on in Snellville. Most cities have this. Keep the arguments within the laws and rules. This one was not. Let the courts decide. This needs to happen. I am personally thankful for Ms Swinney's courage to do this. It isn't easy. Don't deny her free speach and then complain when yours is taken away.
Diana October 16, 2012 at 11:51 AM
One of the many problems with the "freedom of speech" is that anyone can hold a mic and stand there blasting nonesense. Swinney's conversation was not designed to help the city it was disigned to invoke anger, it was confrontational not helpful. There are a lot of people who rant and rage about their free speech while denying others theirs, it becomes who rages the loudest. I have to wonder what her agenda was because it didn't take her long to stick her hand out wanting payment for her "embarrassment" As I see it she's the type that buys hot coffee, spills it on herself then sues because it was to hot.
Becky October 16, 2012 at 12:20 PM
Jerome, did you watch the video tape. Ms. Swinney had the opportunity to talk when the microphone was turned backed on. She doesn't have a leg to stand on. Are you a friend of hers because you keep defending her. You wouldn't if you watched the video.
MWTW October 16, 2012 at 12:23 PM
Thanks Rob. I am not complaining about losing my rights, nor am I taking away anyone elses. (I enjoyed your first post. You should have left it up) I am not defending Kelly Kautz. I didn't vote for her. But you see, I also have a right to speak my opinions and apparently they differ from yours. Without restating my past posts, it's my opinion that this is either a nuisance lawsuit or someone has "encouraged her to file". Either way, it's another opportunity for the press to have a Field Day ridiculing our city. I am not speaking as the Mayor, for the Mayor, or any of the Mayor's handlers . I am nothing more than a citizen that is tired of the dirty politics going on in Snellville and the bad press we get because of it. This goes for both sides and all of the citizens that love to publicize it. The more we publicize it, the more Snellville's reputation suffers. But really, this is nothing but a local public forum. We won't change the world. I am looking forward to see how this turns out. To me, the big loser is the city of Snellville.
Kenneth Stepp October 16, 2012 at 12:26 PM
Diana I understand your train of thought here. The us and them thing has been far too divisive for your city. The issue for me is this. Ms Swinney wasn't allowed to speak at all. She was stopped before she had an opportunity to speak about anything. Her first amendment rights were violated. For us at least, this is the only issue. Being on the Kautz or Swinney side isn't something we will get involved in. Defending the rule of law is what this is, not what Ms Swinney may or may not have said. It's clear that no matter what is said you will be for Kautz and against Swinney, you will attack anyone that thinks differently than you, and that is your right. Of course if that right was taken from you, you would feel differently. You see, that law is there to protect unpopular speech. Popular speech doesn't need protecting.
MWTW October 16, 2012 at 02:18 PM
I encourage everyone to watch the video before responding. Ms. Swinney was cautioned and the mic was turned back on. She had her opportunity to speak without interruption after the caution. She first started off on a path that had been seen before and was cautioned about keeping things civil. Swinney then spoke what was on her mind and left the podium. Yes, Kautz was upset, but no one's rights were violated and the citizens of Snellville should not have to pay for a nuisance lawsuit. Could it have been handled better? Yes. Should hurt feelings merit a lawsuit? No.
Kenneth Stepp November 01, 2012 at 12:52 AM
MWTW She was warned to not be subversive or her mic would be turned off (basically). She tried to explain that she just wanted to speak. Certainly not an attack or something that gave the mayor a legitimate reason to act the way she did. Her constitutional rights were violated when she was treated differently than everyone else. That is the rule of law. I realize that one cannot defend Mayor Kuatz actions and believe the constitution matters, but until Obama actually completely gets rid of this document, lets consider it as law. It is disingenuous to say anything other than this. You can be a Mayor Kautz fan if you like. But lets follow the rules that were mentioned as a reason for doing what the mayor did. She actually admitted her guilt on CBS News. You cannot defend that unless you throw the law out the window, and her CBS interview. As a bystander that cares about such things, I hope she finds herself in a jail cell. The Constitution and Bill of Rights mean everything to me. Please rethink your position. Ms Swinney was treated differently because Mayor Kautz "thought" she might say something she didn't want to hear. That is illegal, immoral, and unethical.
MWTW November 02, 2012 at 12:27 AM
Kautz did not stop Swinney from speaking, she cautioned her and allowed her to say "what" she came to say. Hooray!!!! Our Constitution is upheld! "A jail cell"? For cautioning a woman to keep within public decorum? I'm sure Danny Porter will really sink his teeth into this one! Let's see, we arrest over 7000 people accused of a felony each year in Gwinnett County, and, about 70 of them actually make it to trial. Then, the trial takes over three years. Yeah Danny, this one is a SlamDunk! Let's waste some County money also while conducting this trial. Since our politicians are indemified, the citizens will pay. Yea! Free money for all lawyers! I tire of those that do not read the threads and catagorize others as pro or con. You're a Kautz Lover, You're a Kautz Hater: blah, blah, blah. Read my posts: I am a Republican, didn't vote for Kelly, and am simply tired of the backstabbing politics that plague Snellville by constantly opening us up to ridicule from the mainstream media. If you want to waste thousands of tax dollars on a lawsuit that could only be termed stubbornly litigious; go for it! Or better yet, just pay off this woman (and watch the lawsuits grow). This is nothing but a nuisance suit to defame the reputation of the city or for someone to make a quick buck. A complete waste of time and money and that applies for all Kautz Lovers and Kautz Haters. Lastly, please don't wait two weeks to reply as people lose interest.
Kenneth Stepp November 02, 2012 at 12:47 AM
This is one of the cheerleaders that the mayor has. Complete lies of course. It's all they have. MWTW, When Ms Swinney was treated differently than other people wanting to speak her rights were violated. She said nothing to cause this treatment. When the mayor was interviewed by CBS this was admitted by the mayor. I'm sure a member of her fan club won't get this and will still worship her actions but an unbiased view sees the problem. Is that fast enough for you? Anonymous poster? I guess that helps you be tough. You wouldn't want to attach your real name to this kind of ignorance.
MWTW November 02, 2012 at 01:38 AM
Thanks. It's refreshing to know that everything I've said is true and reaffirmed by your comments. Talk about trying to look tough...take a look at your profile pic. Not intimidated Ken. You see, I have the right to speak my opinions. Interesting that you argue to defend someone on this very topic and then attack another on his right to speak. Oh well, if you can't debate a point, make it personal. I offer logical viewpoints, not mindless, hateful rants. Keep talking, you are continuing to prove my point. The City of Snellville remains the victim. Incidentally, the more free publicity you give to Kautz, the harder it will be to defeat her in the next election. In politics, there is no such thing as bad publicity. Regarding Ms. Swinney, I guess we'll just have to wait and see what the courts say as we waste taxpayer money.
Will Thompson November 02, 2012 at 02:19 AM
I usually don't get involved in politics but I just have to say something here. I read all these posts and looked at the videos. It is very obvious that this mayor has some serious emotional problems and those have caused a lot of problems for the city. I'm no lawyer so I can't say if she caused a violation of Ms. Swinney's rights. The court will decide that and I think the court will decide about discrimination too. This mayor lets people say nasty things about other council people then she tells Ms. Swinney she can't talk before she says anything. How can anyone say that's ok to do. All people should have the right to speak and all people should be stopped if they say nasty things. That's what a real mayor would do. It hurts me and other people when a mayor makes Snellville look bad.
MWTW November 02, 2012 at 03:36 AM
Hi Will. Thanks for a heartfelt and honest post. in spite of what some of the hatefilled posters say, I am just a citizen that is tired of the back stabbing politics that occur in Snellville and the harmful publicity the media gives us. In their world, if you don't agree with them, you must be against them so they continue to attack. I cannot speak to Mayor Kaust's emotional state. I agree 100% with you that the politicians, all of them, need to keep their bickering behind closed doors and away from the media. It hurts the reputation of Snellville. As I said in my last post, we'll have to wait and see what the courts say and get used to the fact that this lawsuit is a huge waste of taxpayer money.
Dave Emanuel November 02, 2012 at 03:22 PM
I fully agree with MWTW that the politicians should should keep the bickering behind closed doors. I'm one of those politicians, and I have a question. How do we do that? By state law, all work sessions and regular meeting must be open to the public. There are no closed doors, so outbursts are very public. If you review videos of our Council meetings, you will see that this isn't the first time that Ms. Kautz has called someone out of order as a means of preventing them from speaking. I've included a link to a video in which I was called out of order, when I attempted to ask a question at a meeting in January. Recently at a public meeting with the directors of the Evermore CID, Kautz once again used an out of order call as a means of preventing someone from speaking. All of these actions were initiated by Kautz in public meetings, and they were all unnecessary and improper in my estimation. But having been the victim of a "You're Out of Order" call, let's discount my opinion as not being impartial. What do you propose as a means of eliminating public bickering? Should Council members simply refrain from making any comments that might upset Kautz? Should we put the desire to eliminate public bickering ahead of serving what we feel are the best interests of our citizens? I'm not being facetious, I'd honestly like to hear some opinions. Link- http://www.youtube.com/watch?v=pVlWgp9CyRs&feature=relmfu
MWTW November 07, 2012 at 02:46 AM
Dave: No, you should continue to speak your mind and represent your ideas at every meeting. All of the Council Members should. Once the meeting is over, the disagreements should cease and the group should present an air of solidarity; even if none exists. My comments don't necessarily refer to the Council Meetings. They refer to what goes on behind the scenes afterward by "well meaning?' citizens. Example: When Kautz made her gun law's comment, this should have been put aside and buried within a minute. Instead it escalated and "someone" thought it would be a good idea to bring in Georgia Carry. It made national news! My niece in California watched it and had a good laugh. Did Kautz's comment really merit national exposure for our city? No, it shouldn't have, but "someone" thought they'd make a big deal out of it. When those of influence in Snellville start talking, then well meaning citizens start with hate filled comments getting the attention of the media. When Council Members attend meetings with volunteers trying to help the city, the Council Members should not sit with puckered faces and walk out before the meeting is over without speaking to any volunteers. Ms. Swinny is another example of something being publicized that shouldn't be. It is a waste of time and money and is gathering media attention. Yes; I think you should continue to speak your mind but the group should exhibit teamwork to the public once the meetings are over.
Dave Emanuel November 07, 2012 at 05:36 PM
Once again, you've made some good points, but you're essentially stating that private citizens are incapable of, or unwilling to take action on their own. That is not correct. As far as I know, no one on Council initiated any contact with Georgia Carry. That group was largely motivated into action by an article written by attorney Ed Stone (a 2nd Amendment rights activist). for Examiner.com. In fact, the first indication I had that a public backlash was brewing was when a citizen contacted me with a concern. If you recall, I wrote a response to Mr. Stone's article entitled, "Snellville's Proposed Gun Ban, Much Ado About Nothing." The only way minimize or eliminate negative publicity is to eliminate the negative actions that generate it. Thus far, the majority of those actions have been taken by Kautz. The negative publicity resulting from Kautz proposing the possibility of a gun ban, the negative publicity resulting from Kautz calling Ms. Swinney out of order, the negative publicity resulting from Kautz calling Bobby Howard out of order are all a consequence of unilateral actions by Kautz in a public forum, with media in attendance. The bottom line is that none of these actions serve the best interests of our citizens. As a member of the City Council, I believe that it's my job to serve our citizens both during and after meetings. To cut to the chase- I welcome solidarity, but not for self aggrandizement, and not at the expense of our citizens.
MWTW November 08, 2012 at 09:21 PM
Dave: To clarify. I have never insinuated that a Council Member is responsible for any of the "behind the scenes" activity. Others have said that; not me. I have no proof, nor do I believe that any Council Member initiated these occurances. I do believe that there are influencial people within the city contributing to this. These are the ones that I am referring to. You call them private citizens. As I have said, I have a good idea who escalated the Georgia Carry issue and you are right, it was not a Council Member. Thank you for soliciting my thoughts. I am appreciative of your attention. However, if I continue with this discussion and the subject matter, then I will be violating my beliefs that these issues should not be part of a public forum. If you wish to talk in person, I would be happy to meet with you and continue this discussion. If you don't know me by MWTW (I believe you might), you should recognize me should we meet.
Dave Emanuel November 11, 2012 at 05:20 PM
I'm always happy to talk with anyone who has a question or comment about city government. If you'd like to continue the conversation, private message me through Patch, or at my city e-mail address. (I don't want to list it here because it will undoubtedly generate a lot of spam. You can find it on the city web site.

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