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Under a new Atlanta City Council ordinance, victims of sexual orientation discrimination may file a lawsuit in the Municipal Court of Atlanta. But critics say the law won’t pass constitutional muster. The city council voted 14-1 on Dec. 4 to pass the ordinance, which grants a cause of action to sue employers within the city for discrimination based on sexual orientation, race, color, creed, religion, sex, domestic relationship status, parental status, familial status, national origin or gender identity. A discrimination suit can be brought in Atlanta Municipal Court, says the ordinance in Article VI, Sec. 94-120. The city ordinance is expected to benefit mainly those who complain of sexual orientation discrimination. Federal and state laws cover most other forms of discrimination. The ordinance also resurrects Atlanta’s dormant Human Rights Commission and strengthens its ability to investigate discrimination complaints. Plaintiffs have the option to bring a case to the Municipal Court or the Human Rights Commission. Currently, the court handles only preliminary hearings and violations of the city code. The court could impose fines of up to $1,000 on violators, but could also serve as a venue for civil complaints seeking unlimited damages. Only Councilman Lee Morris voted against the ordinance. Morris, the sole lawyer on the City Council, says he agrees with the intent of the law. But he says the Municipal Court is not the right venue for such complaints. “We saw nothing that would forbid it,” says Professor Victor B. Flatt of the Georgia State University College of Law, who helped draft the new ordinance. Information provided by the council says the anti-discrimination protections are based on Section 1-102 of the Charter of the City of Atlanta, which provides that “the city shall have all powers necessary and proper to promote the safety, health, peace and general welfare of the city and its inhabitants.” ‘MCKINNEY’ CASE CITED The council also cites City of Atlanta v. McKinnney, 265 Ga. 161, to justify the city’s power to establish non-discrimination laws. The McKinney case granted Atlanta the power to enact anti-discrimination and jail visitation registry ordinances for same-sex partners. “I believe in the principle behind the ordinance,” says the council’s Morris. “I certainly was not voting against it because of the underlying philosophy.” But Morris says he asked City Attorney Susan Pease Langford and Deputy City Attorney Robert N. Godfrey to look up the applicable state provisions for this issue. Langford declined to comment to the Daily Report on the ordinance. After reviewing those provisions, part of Georgia’s Home Rule Act, and the Charter of the City of Atlanta, Morris says he concluded that the city does not have the power to create a cause of action between private parties. “The Municipal Court and the city court … are not to try cases between private parties,” Morris says. Morris adds that the Municipal Court of Atlanta is limited to imposing a $1,000 fine on parties that violate city ordinances. The new ordinance, he says, gives the court “unlimited power.” Edward C. Brewer III says the Atlanta City Council may not use a charter provision to trump a provision in general law, by granting municipal courts authority to hear specific civil cases. Brewer is an assistant professor at the Salmon P. Chase College of Law at Northern Kentucky University. He has studied municipal courts and is the author of a recent article in the Georgia State University Law Review challenging the constitutionality of the City Court of Atlanta (traffic court). “That’s just not going to fly,” says Brewer, referring to the court’s new tort jurisdiction. “That is plainly and simply wrong. That is obviously wrong. That is ludicrously wrong.” CHALLENGE PREDICTED Brewer says he would not be surprised to see a challenge to the ordinance in one of the state-level courts — a declaratory judgment action, for example. In the meantime, he says, no competent attorney would bring such an action in municipal court without exposing himself to a malpractice suit. The proper place for a law of this kind, Brewer says, is in Georgia Code Sec. 36-35-6, not in local ordinances. A state statute is necessary to create the kind of cause of action the city council seems to have been seeking, he says. O.C.G.A Sec. 36-35-6(b) provides that power granted to municipalities “shall not include the power to take action affecting the private or civil law governing private or civil relationships, except as is incident to the exercise of an independent governmental power.” Says Brewer, “Their goal is a great idea. It just has to be done through the proper legislative procedures.” Councilwoman Cathy Woolard, who pushed the law through the council, was out of town and unavailable for comment. Professor Flatt says he thinks the ordinance will hold up to constitutional scrutiny. Flatt says that resolution by the Human Rights Commission is an alternative remedy to suit in municipal court. “We figure the commission is really a better vehicle to get that done,” he says. Flatt also says the ordinance includes a severability clause that would not prohibit recovery if the ordinance is struck down. He says the ordinance-drafting team also examined the home rule act and the city’s charter. At the beginning of the drafting process, Flatt says there were two significant challenges; one was whether the city had the power to pass the ordinance based on police power. “We felt good about that,” Flatt says. The other challenge, he says, was discovering whether the municipal court has jurisdiction over private parties. As for that, Flatt says, “We just don’t know.”

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