Live from Music Row Monday morning on The Tennessee Star Report with Michael Patrick Leahy – broadcast on Nashville’s Talk Radio 98.3 and 1510 WLAC weekdays from 5:00 a.m. to 8:00 a.m. – host Leahy welcomed Nashville based attorney Jim Roberts to the newsmakers line.
During the third hour, Roberts outlined the details of the lawsuit filed last Friday against the election committee for not proceeding with their ministerial duties and putting the referendum on the December fifth ballot. He later explained that it was only after he filed suit that the election commission decided to in turn file a lawsuit that is disguised as suing the Metro government but truly aimed at the voters of Davidson County for filing their legal petition.
Leahy: We are joined now on our newsmaker line by the attorney Jim Roberts. Jim is the attorney for 4 good government the folks at are pressing the petition to get it on the ballot December fifth and to repeal the property tax here in Nashville by 34 percent. Dueling lawsuits. Jim, bring us up to speed on the lawsuits.
Roberts: Well, as you know, we filed late Thursday of last week because of the election commission. Even though they had voted to file a lawsuit against the taxpayers two weeks before. Hadn’t done anything. And surprise surprise right after we filed they pulled out their complaint and filed on Friday. They have not served me with it yet. They’re not making much effort to get it to me. But they apparently wanted to file a counter-complaint.
Leahy: So well what’s in there what’s in your lawsuit and then tell us what’s in there.
Roberts: My lawsuits is pretty simple. The 27,000 taxpayers expressed their political will by signing the petition and the Nashville Election Commission doesn’t really have a choice. They did what they were supposed to do. They followed the law. And the election commission’s ministerial duties is to put it on the ballot. They are just refusing to comply with the law. So when you have that situation a citizen has a right to file was called a mandamus which is just a fancy word for a lawsuit that requires the government to do its job. It’s unfortunate. They should do their job anyway. But when they won’t this is how you make them do it.
Carmichael: So Jim what do you expect now to happen this week?
Roberts: Well, this is this is hard to predict. But I presume the Chancellor will read all the things that were filed on Friday and make the decision to probably have a hearing sometime Wednesday of this week. Maybe Tuesday maybe Thursday depending on the Chancellor’s calendar. The complaint that was filed by Metro though is really sort of surprising. It’s actually the election commission suing the Metropolitan government. And it sues the finance department and at the very end, it mentions 4 Good Government. It’s almost like they’re trying to pretend like they’re not suing the taxpayers, which is a little bit dishonest.
Leahy: What’s the argument then? What’s what do they cite? Do they cite the Tennessee code that makes it clear that it’s a ministerial duty once it’s been verified to put it on the ballot? Do they cite the Tennessee Supreme Court decision of 2004 where the Tennessee Supreme Court clearly ruled that if there’s a question as to the constitutionality or legality of a referendum question, that’s not a question and that in its ministerial duty an election commission can ask?
Roberts: That’s right. No, it’s even better than that. They didn’t cite any Tennessee law. They didn’t cite any kind of Tennessee cases. What they cited was the legal opinion by Bob Cooper who is in the Metro Department of Law. So they wrote their own briefs and then used it as evidence to support a complaint. Let me assure you that is not considered legally binding in any way by a court.
Carmichael: Jim you hit on you said something that initially it didn’t just pop up as strange but it just did when Michael was saying when he was saying the election commission is suing Metro. What is their basis for suing Metro? What is what are they claiming Metro did wrong?
Roberts: No, no. They filed what is called declaratory action. What they’re trying to do is get in front of a judge so they can complain about the contents of the ballot initiative. And so to do that, they got the election commission to sue the Metropolitan government, which I’m not even convinced they can do. I don’t think one part of Metro can sue another part of Metro.
Carmichael: Well, that’s what I was trying to get at. Suing yourself. Is it possible legally to sue yourself? For a person to sue himself and get in front of a Judge?
Roberts: I don’t think so. (Laughter) I’ve been wracking my brain and doing some research over the weekend trying to find a situation where a board or commission actually sued the Metropolitan government. And I can’t say it’s never happened but it would seem to be extremely rare. I mean the election commission is part of Metro. And certainly, in this kind of situation, there is no basis for it. They’re trying to hide the fact that they’re really suing the taxpayers.
Roberts: They’re just trying to be dishonest and they don’t want to admit that they’re suing the people of Davidson County who did everything right. And who did everything appropriate. And they just don’t want to let those people’s voices be heard.
Carmichael: When you said the chancellor, how many judges are there that could have possibly been assigned this suit?
Roberts: There are four in Davidson County. We got Chancellor Lyle who is a fine Chancellor and quite honestly is one of my favorites. And probably the one I know the best. But also is just very smart and very capable and I think she’ll see through this pretty quickly.
Carmichael: Okay. Well, it’s a fascinating time. And so you’re next the next step is to appear before Chancellor Lyle and the city. Who will appear on the other side? Will it be the election commission or will it be the city? Or will it be but both of them appear appearing as compliant as adversaries?
Roberts: Well, that’s a little bit funny because normally when you go into court, there’s one table that the plaintiff sits at and one table to defendants at. And over on the defendant’s side is going to be me and a Metro lawyer. And on the other side is going to be the plaintiff and the Metro lawyer.
Leahy: A little Kafkaesque I would say. So the odds that that chance allows will hold a hearing sometime this week on this are pretty good wouldn’t you say?
Roberts: I would think so. These things are generally done on an expedited basis. We’ve asked for we asked for an expedited hearing. Strangely they did not. They have not asked for any sort of expedited hearing. They also haven’t served me with the complaint. I got an email copy of part of the complaint, but they haven’t even made an effort to try to serve me with it. I think that’s very telling.
Carmichael: Will the case this week that you expect to go in front of Chancellor Lyle a or the case that has been assigned a Chancellor Lyle? Is that your case?
Roberts: Well, I know that mine had I don’t know what the one that the election commission filed. I haven’t gotten any because they didn’t send me the whole case. I’m not sure I know which judge got it. They are going to file a motion to consolidate unless they’re doing is stalling and delaying by not asking for expedited relief. They’re not serving me. I sent their attorney an email like two weeks ago and it said you could serve me by email. You can come by my house. I’ll come by your house. You know, I’ll make this really easy. And as we sit here today, they still haven’t sent me a copy of the entire complaint.
Leahy: What in your view Jim is the best outcome of this week in the event that Chancellor Lyle does hold a hearing this week? What would be the best outcome in your view?
Roberts: Well, we’re going to file an immediate motion to dismiss their case. There’s absolutely no legal basis. You cannot have the director of law, right a legal opinion, and then try to use that is a legal basis to sustain a lawsuit. The of the opinion of the Metropolitan Department of Law is just that. An opinion. And they lose cases every day because their opinions are wrong. They win cases too. But just because they have an opinion, you know, they’ll joke everyone’s got an opinion.
Leahy: Even the Metro law director.
Roberts: Yeah, even the Metro law director. It is pretty shameless. It’s almost like if I wrote my own legal opinion and then cited it and said well, of course, it’s the law because Jim says so. That’s not how that really works.
Leahy: Well, that’s the best outcome of this hearing on Friday?
Roberts: By the end of this week will have their case dismissed because it’s not right then appropriate. And then we’ll have a hearing on our case and which we will make the very clear case that the that 2004 Supreme Court case where the city of Memphis or Shelby County which has been cited a dozen times as good law in Tennessee which basically says you cannot have challenges to ballot initiatives before they’re voted on. That’s a clear law. It’s been the law for almost 20 years and we’re going to go in with a motion to dismiss and say kick this lawsuit out. And by the way, while you’re at it, this is a ministerial act also in the case. Tell these folks to set it on the ballot and quit messing around.
Leahy: Could the judge order the Davidson County election commission to schedule the election on December fifth?
Roberts: Absolutely, that would definitely be within the judge’s power. But again, it’s just called a ministerial act. They don’t have a lot of discretion or any discretion. A judge will or should issue an order that says go do your job. Just put it on the ballot and then we all go out and fight this out and we run campaigns. And you know, they lie about the ballot initiative and we tell people the truth and then we win.
Carmichael: Well, that would be the goal. What could they do if Chancellor Lyle rules telling the election commission to put it on the ballot? Could they file an appeal?
Roberts: They could appeal. You can do an emergency appeal to the Supreme Court of Appeals or even the Supreme Court. I would give them about a five percent chance of that working. The court of appeals and the Supreme Court are happy with their jobs and they don’t need to jump into local politics unnecessarily.
Listen to the third hour here:
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Background Photo “Davidson Courthouse” by euthman CC BY-SA 2.0.