Trial set for lawsuit against city of Rusk

The lawsuit brought against the city of Rusk, by half of its City Council, is moving forward.

Cherokee County Second District Judge Chris Day set a trial date on the matter for 9 a.m., Monday, Oct. 29, during the second court hearing held on the matter.

Council members in July approved a motion to seek a declaratory judgement on the city’s charter in district court. The lawsuit was filed against the city of Rusk by Councilmen Jan Pate, Ken Ferrara and Martin Holsome, to determine the correct interpretation of the city’s charter as it pertains to what constitutes a majority vote, 3-2 or 4-1.

“Let me clarify, it’s not a lawsuit, it’s a friendly legal process,” Pate said in a meeting held Aug. 9. “I want to explain – the majority of the members of the Council is a quorum, according to (Jacksonville attorney) Ricky Richards. There has to be a quorum of at least four to do business and – not or, but and – affirmative votes of the majority of members. A majority of five.”

Monday’s hearing began at 3 p.m., and attorneys for both the petitioners and respondents met with Judge Day in his chambers for about 25 minutes before court convened. All three petitioners, as well as respondents Councilmen Walter Session and Ben Middlebrooks, were in attendance. Mayor Angela Raiborn was not present.

“I’d like to put this case on the fast track,” Day said. “I’m not an expert on the Open Meetings Act, but we do have five council members here and I don’t want y’all to violate that Act.

“I recommend just let your attorneys speak for you.”

Day continued, “I want this matter resolved as soon as possible, for the citizens of Rusk and all parties involved.”

Day set the trial date and said, “That gives both sides about two months to do whatever discovery (of evidence) you’d like to do. I’d like both parties to work out their own scheduling order. I’d recommend two weeks’ response time. If I don’t hear from y’all in one week with an agreed-upon schedule, I will order one for you and I promise, it’s in your best interest to come to an agreement on your own.”

Day also said attorney Brett Brewer, representing the city of Rusk, had filed a motion to withdraw as the city’s attorney in the suit.

“I am taking it under advisement,” Day explained. “I’m very sensitive to the request – I never want to make an attorney continue representing a party when he prefers not to. On the other hand, if the city has no representation – since they haven’t appointed or confirmed a new city attorney – the case won’t be able to go forward.

“So, at this time, I will not rule on that matter. I apologize to Mr. Brewer.”

Brewer then requested the record show he instated a running objection, which Judge Day granted.

The Rusk City Council has until 5 p.m. Monday, Sept. 3, to present its scheduling order to the court.