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On May 16th, representing myself as Pro Se, I filed a Petition for Writ of Certiorari in the FC Clerk of Court’s Office, for the following reasons:

I witnessed BOC Chairman Charlie Laughinghouse violate FC Rules and Procedures and the Unified Development Code,  on 2/21/08 when instead of calling for a vote on Commissioner  Richards’ Motion to Deny ZA 3438, when it appeared that ZA 3438 would be denied, he called the applicant/developer forward, Sal Migliore, and gave him the option to withdraw his application without prejudice, which meant applicant/developer could turn around the next day and reapply whereas if ZA 3438 had been denied, he couldn’t reapply for another year.   In addition, Chairman didn’t tell applicant that according to the UDC, Art. II, he must withdraw his application in writing, when he requested that his application be withdrawn and BOC approved this request unanimously.  
 
The Motion to Deny not being voted on nor withdrawn is a violation of FC Rule and Procedure 3.03.07, and FC Rule and Procedure 1.08.01 requires that a Motion to Deny should immediately follow a Motion to Approve to bring closure.  An earlier Motion to Approve by Chairman Laughinghouse had failed. 
To date there is no Resolution signed by the BOC in the FC Planning and Development Office stating that the BOC had approved this request, which is a violation of Article IV, of the UDC,  nor is there any record of the applicant/developer ever withdrawing his application.

It is my contention that Chairman Laughinghouse went beyond the authority granted to the “Chairman” in Section 1.03.01, FC Rules and Procedures, in carrying out these “personal actions” such as explained in an e-mail dated March 7 from the applicant/developer, (1 of 22 they wrote to each other,  which I obtained through an Open Records Act Request),  to Chairman Laughinghouse which stated that the applicant/developer had received a message, via another person,  from Chairman Laughinghouse,  “to wait a few weeks before moving forward with reapplication”, and the applicant/developer continued, “so I will wait a bit longer if you need time for some internal reason.   Also, I heard a comment that Commissioner Ledbetter actually ‘regretted’ voting negatively on my case, and was considering changing her vote, if such a thing is allowed…I hope for all fairness and decency that you and Commissioner Ledbetter are still actively discussing and/or researching my application and that I might salvage a final approval.. Please let me know what the outcome is of your inquiry.” 

At the BOC Meeting, March 6, 2008, the BOC approved the Minutes of 2/21/08 which state that this applicant/developer requested that his application be withdrawn but there was no reference to Commissoner Richards’ Motion to Deny not being voted on, or withdrawn, another violation of   FC Rule and Procedure 1.06.01.

On March 8, Commissioner Ledbetter asked the BOC to rescind the unanimous vote of 2/21/08, thus reviving the withdrawal of 2/21.  Then she, Chairman Laughinghouse and Commissioner Harrell voted to rescind ZA 3438 on 3/20/08,  and on 4/17 they approved ZA 3438.  This was an improper reversal of a withdrawal.    I could only find one time in searching 5 years of BOC Minutes when the BOC voted to “Rescind” and “Reconsider” after a unanimous Motion to Approve the withdrawal of an application without prejudice.  The one time pertains to ZA 3438 and I contend that these rules were used “selectively”.  If these rules, FC Rules and Procedures, 3.02.02 and 3.02.03 were replaced with Robert’s Rules of Order Newly Revised, which many of the BOC’s rules are from RONR, a vote to rescind wouldn’t be allowed after the result is announced.  “Once the next item of business is announced or the meeting adjourns, it is too late to ask for unanimous consent of the assembly to change one’s vote.” (Rod G. Davison, Professional Registered Parliamentarian, Credentialed by the National Association of Parliamentarians, Member American Institute of Parliamentarians.)

When I contested this decision, 29 days after it was approved, I could hardly pronounce CERTORARI (U. S. Supreme Court Justice Sandra Day O’Connor, retired,  pronounces it “Ser shah rair ee”), let alone know the process, but this is the only option you and I as citizens of FC are permitted in order to carry out our due process, granted us by the 5th and 14th Amendments to the U. S. Constitution, and I couldn’t afford with an retirement income of about $600 per month as a 73 year old senior citizen, to hire an attorney because I had no way of knowing what the total cost would be.  (In fact, in RESPONSE TO PETITION FOR WRIT OF CERTIORARI prepared by Jarrard and Davis, Attorneys for Chairman Laughinghouse,  they made a request to the Court “that the costs of this action, including attorney fees, be cast against Petitioner” the costs of which could have been $15,000 if this had gone to trial; however,  a lawyer friend told me that if this happened he would appeal it, pro bono which means at no cost to me for legal expenses.)

The Hearing by Judge David Dickinson was held 8/13/08.  He told me during the Hearing “There is no one place you could go as a Pro Se and find all that you needed to know to file this petition,  though Mrs. Leifeste you have made an admirable attempt to go through this – there are attorneys who haven’t navigated as much as you have -  but if you ever do so again in your community efforts, hire an attorney.”  (I think he meant that between an attorney and me both working together we could succeed in not making any mistakes.)  But even if I could afford to hire an attorney, would there be one in FC who would represent me in a lawsuit against the BOC?  And if so, would he/she be one who could navigate such a Petition, ----------and win?

Regarding where a Pro Se can go to learn the process for filing a Petition for Writ of Certiorari:  If I told you everything I did, and every place I went and every person I talked to, or every book I read, to try and find the proper form to use and when to file it, or some other aspect concerning this filing, it would take as much space,  if not more,  than this entire article

Judge Dickinson,  in order to follow the law,  had to dismiss this case because there is one filing, a Writ of Certiorari, which according to Ga. Law (O.C.G.A. § 5-4-3 (2007) is to be filed by the Clerk of the Court within 5 days of my filing of my Petition for Writ of Certiorari.    This Law says nothing about anyone having to tell the Clerk to file it, just that it is to be filed by the Clerk of the Court.

But Mr. Sorrells, the FC Clerk of Court didn’t filed this Writ within 5 days.   And I didn’t learn this until July 11.  Because I wanted to do this filing process as perfectly as  I could,  I  tried to get Mr. Sorrells to sign it over a  3 day period of time and finally with the help of Judge Bagley and Judge Dickinson, he did.  And on July 28, 2008, Forsyth County Attorney Ken Jarrard sent the requested documents to the Court for the August 13, 2008 Hearing.

Still my case was dismissed without the merits  being heard because the Writ for Certiorari wasn’t filed at the proper time by the Clerk of Court and this isn’t amenable.

To me this is a violation of my 14th Amendment due process rights, the fact that the Clerk of the Court didn’t file the Writ of Certiorari within 5 days, as Ga. Law O.C.G.A. § 5-4-3 (2007) states that the Clerk is suppose to do.  Therefore, my case never got heard on its merits and because the Clerk didn’t do his job this portion of the 14th Amendment to the U. S. Constitution didn’t help me: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

According to the FC Attorney, I appear to be the only FC citizen who has contested a BOC zoning decision by filing the Petition for Writ of Certiorari* which means that FC has succeeded in what it was trying to do when it passed this law, which was to discourage most citizens from contesting BOC decisions, by making it so difficult for us to succeed in exercising our due process that 99%  wouldn’t even try. 

What can be done to allow citizens of FC to exercise due process successfully without it costing  an arm and a leg, whether one is a senior citizen or not?  There is an active national coalition working on the right to counsel in civil cases, according to Associate Professor, Steven Schwinn, John Marshall Law School, Chicago, and those of us who want to get this situation corrected to open up our due process should contact http://www.civilrighttocounsel.org/.   We should also contact the present FC BOC  by e-mail at: commissioners@forsythco.com or by phone at 770-781-2101 and the three who are running for election in November,  Patrick Bell, pb@teambell.org or 678-648-6130; Jim Boff, electjim@gmail.com and jonflack@gmail.com and ask for their help in helping  citizens exercise  due process when citizens want to contest a BOC decision in a way that doesn’t require hiring a lawyer or working oneself practically to death in trying to file a Petition for Writ of Certiorari..

Feel free to contact me with questions or comments at 678-232-9258 or e-mail me at dorisjoann1@yahoo.com.  I will share what I have learned at no cost and perhaps help another citizen succeed where I failed. 

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*ARTICLE X, APPEAL OF BOARD OF COMMISSIONER DECISIONS:

8-10.1 Appeal of Board of Commissioners Decisions. Any person, persons, or entities jointly or severally aggrieved by a final decision by the Board of Commissioners regarding this Code or any application may make an appeal by writ of certiorari to the Superior Court of the County. The appeal shall be a de novo determination of the decision before the judge of the Superior Court without a jury. Any appeal must be filed within thirty (30) days of the decision, and, upon failure to file the appeal within thirty (30) days, the decision shall be final. For the purposes of this section, the appeal time shall run from the day the particular vote or action is taken.