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 based attorney Jim Roberts to the newsmakers line.
During the third hour, Roberts gave updates on the status of getting the Nashville Taxpayer Protection Act on December’s ballot explaining how the Davidson County election committee has been stalling by not giving a yes or a no. He later explained how this seems to be a coordinated effort led by Mayor Cooper’s administration.
Leahy: Michael Patrick Leahy here with the original all-star panelist, good friend Crom Carmichael. We are joined now on our newsmaker line by Jim Roberts. The attorney who put together the Nashville Taxpayer Protection Act. He gathered more than 27,000 signatures to put the petition referendum on the ballot that would repeal the 34 percent property tax increase. Gave it to the Nashville Election Commission. They confirmed they had more than the 11,000 petitions needed. From there it was a ministerial function to give it to the Metro Clerk to put it on the ballot, but something happened there that seems to me to be not entirely legal. Jim, what is going on there?
Roberts: Well, it just shows you how desperate they are, and how desperate they are to keep this off the ballot. They are clearly afraid of this, and this is all fear-driven. you you’re absolutely right. We gathered 27,000 signatures. We turn them in. They counted up as many as we needed which is a lot more than 11,000 and we were good to go. And then the mayor’s office intervened and started putting pressure on the election commission. That’s where we are.
Leahy: So let’s just follow through. It doesn’t seem to make any sense. It does seem to me to be a number of illegal actions in my view. It’s not your words, but my words, it seems to be illegal because before last Friday, the week before last Friday they held a secret meeting of the mayor’s counsel and the Election Commission, which is in my view a violation of the Open Meetings laws, which I think just choreographed this little three to two decision last Friday in which again, they decided to make up authority out of thin air, not in the charter.
They decided instead of handling the ministerial function of asking the Metro Clerk to put the ballot to put the referendum on the ballot in December. They decided out of the blue they had some authority to challenge the constitutionality of the referendum in the petition. How did that work? How do they do that?
Roberts: Well it doesn’t work. Let me tell you it doesn’t work and it’s illegal. They’re not allowed to do that. That’s called being a judge and the Election Commission is not a judicial body. The Tennessee state law, case law, is pretty clear that their duty is ministerial, meaning they don’t have a lot of discretion or any discretion.
And so they’ve decided under pressure from the Metro Government to sit and have their own judge and have their own little judiciary set up and they’re making decisions they are not entitled to make. They do have a little bit of discretion in setting the court date, possibly. We’re still not sure about that. But they did move the date from the 5th [of December] to the 15th. And so they bought themselves a little more time. But truthfully I think they’ve painted themselves into a corner and they don’t really know what to do.
Carmichael: What can you do to get it back on track so that there’s a date certain for the people to chime in through voting?
Roberts: Well, it’s a great question, Crom. The problem I have honestly sitting here that they haven’t actually done anything I can sue them over because they have until about October 7th. That’s part of the deadline to actually put it on the ballot. So right now they haven’t voted to put it on the ballot. They just didn’t vote to put it on the ballot. And so it’s in this sort of limbo where they’re there. I think they’re just trying to game the system. So they haven’t actually done anything. If I went into court today and follow the lawsuit the judge would look at me and say they haven’t done anything. So I’m having to wait at least a few more days.
Carmichael: Okay, October 7th is a deadline that they are required by statute or by charter to do something. I mean to put it on the ballot, or to give some ruling or some reason why they’re not going to do it. And in either case if they give a reason why they’re not going to do it, you can sue them over that. And if they failed to do what they’re supposed to do by October 7th, you can sue them for not doing what they’re supposed to do in a timely manner. Is that correct?
Roberts: Exactly. Now I want to caution you that October seventh is not a hard day. They have to what they have to do is prepare the military ballots in the overseas ballots and mail-in ballot. the things that have to do and it takes about 60 days because there’s only one item on the ballot. They might have a little bit more leeway. They could run a little later and make it work, but it’s roughly 60 days. And so we’re sort of thinking Monday or Tuesday of next week that the deadline. but they probably Live longer the problem is from they got to do something. They can’t just sit on their hands because I absolutely will sue them eventually.
Leahy: Have they asked the Chancery Court to rule on the constitutionality of it? That’s what that was my impression but have they done that or not?
Roberts: They have not. They voted to hire a lawyer. Voted to pay this to waste the Nashville taxpayer dollars on a high-priced lawyer. That lawyer didn’t reach out to me. I sent him a nice email back and said well, you know bring the lawsuit over when you’re ready. My prediction is they’re not going to do anything. I think I think their goal is to stall and delay and pretend like it’s not happening.
Leahy: So are they going to sue you or Americans for Prosperity who backed the petition? Who are they going to sue?
Roberts: Well, they would I assume they would sue me. They technically would have to sue the 11,500 verified signatures. They probably don’t know who those people are, but I’m presuming they’re going to sue me. In fact, that’s why I reached out to a lawyer, because I said you can serve me by email or mail or just bring it over to my office. I wanted to make it easy for him because I’m going to make it hard for him. (Leahy chuckles)
Carmichael: Because part of what you’re saying though is you think they won’t they’re going to try to not do anything. So if they sue that gives you an opportunity to respond and get the ball rolling. If they do nothing then they’re trying to just run out the clock by just acting like your ballot initiative never happened.
Roberts: Exactly. And that’s just sort of cowardly way to do it. But that’s exactly what I expect.
Leahy: But the vote last Friday three to two. Didn’t they vote to ask the Chancery Court to rule on its constitutionality?
Roberts: You don’t just ask the call them up and ask them. You have to file a lawsuit. There has to be a vehicle, and quite honestly there Commissioner DeLanis, who is a very fine commissioner, he actually sort of put it back on the Election Commission and said, you know we have to do something. We can’t just ask the judge to tell us what to do. We have to make a decision. and then go after the judge if it’s the right decision. So he was pretty adamant about it. So we have to vote to keep it off the ballot or vote to put it on. This is the coward’s way out.
Leahy: So one week after that meeting, there’s no Chancery Court judge that has anything from the city saying is this constitutional. Is that what you’re saying?
Roberts: As far as I know what I would assume. I’d be the first or second person to know. You know, they know where to reach me. They know how to get in touch with me. I reached out to their lawyer and I’m ready to go. I’m ready.
Leahy: So what would they sue you for? What would they sue Americans for Prosperity for? What would the city sue you for? What would be the claim?
Roberts: I mean in a very real way Americans for Prosperity certainly helped us with this. but they weren’t behind it. You know, I’m very happy that they sure helped us. But we already had the signatures to get it on the ballot.
Leahy: What will be the city’s claim against you be? Why would they sue you and what would their argument be?
Roberts: Well, I think they would sue the organization the 4 Good Government that sort of put this together and I guess technically I’m the head of that. This is as informal that organization is. They’ve got to do something though.
Carmichael: But on what basis? I’m like based on what basis would they Sue you?
Roberts: Crom, trust me. I’ve looked at this and looked at this and I can’t figure out what their basis is.
Carmichael: Okay.
Roberts: They would have to take action and then they would ask to have a declaratory action, but to determine what it is we want ultimately moved to dismiss.
Carmichael: Can you file for a declaratory judgment now?
Roberts: Again, I can’t do anything until we get close to the deadlines because technically the election commission could meet they can put a notice out today. And say we’re going to meet on Monday and they could vote to put it on the ballot.
Carmichael: So after October 7th one of your options could be or might be but you can sue for a declaratory judgment.
Roberts: Correct. It would be actually technically called a mandamus which is not interesting to anyone but me. But a mandamus is what you use to force the government to follow its own laws. And I’ve had to sue Metro that way more times than I can count.
Leahy: Well, Jim, we salute you for your efforts. Our hats are off to you. Keep up the good work. This story continues to be a convoluted effort by the mayor to subvert the rule of law and thank goodness, we have a great lawyer like you defending the citizens of Nashville.
Roberts: I’m doing the best I can yeah, thank you.
Listen to the full third hour here:
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Tune in weekdays from 5:00 – 8:00 a.m. to the Tennessee Star Report with Michael Patrick Leahy on Talk Radio 98.3 FM WLAC 1510. Listen online at iHeart Radio.
Photo “Ballot” by Brendan C. CC BY 2.0
