Live from Music Row Friday 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 attorney Jim Roberts to the newsmakers line to give updates about scheduled hearings in order to proceed with getting the Taxpayer Protection Act referendum on the December ballot.
Leahy: We are joined on the newsmaker line by our good friend Nashville attorney Jim Roberts who has an update for us about the Nashville Taxpayer Protection Act referendum. There was a court hearing scheduled yesterday. Did it happen? And what happened there, Jim? Welcome.
Roberts: Well, it did not happen yesterday. Good morning to you. Funny things have happened since we last spoke. After we filed suit last Thursday, Metro I guess got off their tail in and filed a complaint on Friday. And then the Metro Department of Law added a 50-page complaint on Tuesday against us. They are pulling out all the stops to try to run over the voters of Nashville, and it’s not working but they’re trying very hard.
Leahy: So you had been scheduled I thought on Thursday afternoon for a hearing on your what would you call it? Mandamus to force the Davidson County election commission to follow the law and schedule the referendum to repeal the 34 percent property tax increase as your petition specified on December fifth. What happened to that hearing?
Roberts: Well, that’s a good question. I was supposed to be yesterday afternoon after Metro filed their humongous complaint on Tuesday. We immediately filed a motion to dismiss. It was entirely improper. It violated basic canons of the law that you can’t follow a second lawsuit when there is already a lawsuit pending. The judge struck the hearing yesterday, and we’re going to have a status conference this morning. And it looks like though that we are set to go to trial I believe October 26 as a week from Tuesday.
Although I’m not real sure what we’re going to have a trial over because the law actually is pretty crystal clear here. We the voters of Davidson County followed all the requirements. We turned in sufficient signatures. All is left is for the election commission to do its statutory duty which is called a ministerial Duty and to do it. This is just clear evidence that really me that Metro will do anything to keep this away from the people.
Leahy: I don’t understand why the judge is not holding a hearing on your mandamus request to force the Davidson County election commission to follow the law. Is the judge ignoring that? What’s happening there?
Roberts: Well, it’s hard to tell exactly what I think the judge will do. She is somewhat persuaded by the motions to dismiss. We actually saw two of them dismiss Metro’s complaint. She’s trying to force them all into one lawsuit. It’s called consolidation, which is not sort of unusual. Today we’re going to really have a knock-down-drag-out. Today is where I put my foot down and say this is what has to happen.
We have to have a determination on whether this goes on the ballot. All of this secondary attacks from Metro are just confusing the issue or trying to. they’re trying to litigate it before it’s even voted on. but then Michael they are just desperate. They desperately don’t want the people to express their opinion. And they know if this goes to a vote that the overwhelming majority of Nashvillians are going to say. No, I don’t want a 34 percent tax increase.
Leahy: So the next step in these legal proceedings is what exactly Jim?
Roberts: Well about an hour and 15 minutes were having a meeting with the court and she’s got some questions about whether witnesses will be needed and what exhibits. The other side is trying to bring in thousands of pages of exhibits and we’re pretty much saying look there are only about three pieces of paper. There’s a certification from the Metro Clerk.
There’s the verification of signatures so put it on the ballot. And so that’s the tension here. They want to drag this out and confuse the issue and we really want to go to the heart of the case which is the law here. Does the election commission have the right to interpret a ballot initiative? Or do they just have to put it on the ballot like they’re supposed to? And the case law is clear. There’s not a town in Tennessee that supports Metro’s position.
Leahy: So what will happen? What are the possible outcomes after you have this meeting today with the judge and we’re going to have that
Roberts: We’ve already at least asked him pleading for an expedited hearing we’re going to ask for the hearing to be next week. We’re ready to go. we could go as early as Tuesday and that’s only because I’m traveling on Monday. This is not hard. for Metro to keep this off the ballot they would have to show the court that it violates the Tennessee Constitution and they don’t even allege that in their pleadings. They talked about how expensive a special election is.
Leahy: In their pleading Metro does not allege or Davidson County election commission, they are not alleging that the petition violates the Tennessee Constitution? I thought that’s what the Robert Cooper Metro legal director argued extensively in his opinion letter.
Roberts: Well, that’s what he says but they don’t cite any case law that proves it. What the and what they’ve actually done there and their complaint they don’t really put any law in. they just site to Bob Cooper’s memorandum. And that would be like me writing a paper and then citing it as some sort of authority. Bob Cooper is just an attorney. He may work for Metro Leyland may be in charge of Metro legal, but he’s just an attorney giving an opinion.
His opinion has no more weight than my does mine does when we go to court. but that’s what they’re relying on his opinions. In his opinion interestingly even in his opinion. He cites an attorney general opinions that agree that we have the right to do this. He’s even admitted that we might have the right to do it. The problem is there’s no definite law and because there are no definite laws we litigate this after its voted on.
Carmichael: You know, Jim listening to what you’re saying what’s going on here locally. I’ve been watching the hearings of Amy Coney-Barrett and it is clear as a bell that that that your what you’re trying to do is let the voters have a voice on a very important issue under the laws that exist. And the Democrats are trying to be like the panel members on the Judiciary Committee because they can’t stand the idea of a judge who will rule according to what the law says. And the the the legislature is not going to change this law. And they don’t like the law so they don’t want to have to adhere to the law. Which is exactly The Democrats on the committee have done. And it’s exactly what the Democrats are doing here locally. And it’s really a shame. Just a shame.
Roberts: When you think about how much money they’re spending to fight this, they’re going to spend tens of thousands maybe hundreds of thousands of dollars to fight this ballot initiative just so you don’t so the citizens don’t get a chance to vote on it. And of course, I don’t know if it’s going to win or not. All I know is that 27,000 registered voters said we want this on the ballot. That’s good enough for me.
Leahy: So where we stand today, you’re gonna have this meeting with the attorney for Davidson County election commission and the judge. and the judge is going to ask some questions. And then it looks like there is currently scheduled the beginning of a trial not on your mandamus to force them to to to hold the referendum on December fifth. But rather on the date on the commission’s complaint to throw it out. Is that right?
Roberts: Well, no, it’s not it’s unfortunately not quite that clear why she set that up. And the judge was doing was just reserving three days and case there was going to be a full-blown trial. I don’t expect there to be I can tell you the Tennessee law is very clear that you don’t litigate ballot initiatives before they’re voted on because I might not pass.
Not every ballot initiative passes and there is a strong principle in the law that’s called rightness. This case is not ripe for a judication. It’s a waste of judicial resources and everyone’s time to litigate something that may or may not pass. That’s time-honored Tennessee law and they know that they’re trying to prevent people from voting. This is all about voter suppression. And you have a right to vote. You have a right to have your ballot initiative on the ballot. You have a right to go vote for that ballot.
Leahy: When are you traveling next week after this hearing?
Roberts: I’m traveling on Monday.
Leahy: So you’re trying to get this subsequent legal hearing on this after the meeting today sometime next week. It’s currently scheduled for a week from Monday the 26th. Is that right?
Roberts: That’s right. We had actually and some pleading that was filed asking for a breach to be done by next Tuesday and Wednesday and a trial on Friday. I think the court has pushed it back a couple of days. But really my job today is to make the judge understand that this is about four sheets of paper. I mean, they’re only for commence and everything else is the law and this is where Metro bares the burden. This isn’t my burden. I can prove that it’s a ministerial duty because every case that’s ever been cited in Tennessee says that the election commission’s duty is a ministerial Duty. That’s not going to be that hard. Metro has to come forward and prove that somehow the people should be denied the right to vote.
Leahy: In a best-case scenario could this be resolved before the end of October favorably for this the residents of Davidson County?
Roberts: Well, we’re going to ask because there are some time limits here for her to move up that trial two to one day and make it one day and do it next Wednesday.
Listen to the full third hour here:
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Background Photo “Legislative Plaza” by Ken Lund. CC BY-SA 2.0.