insights (2006-15)

Definitive Term-Limit Rulings Needed

Definitive Term-Limit Rulings Needed

In the absence of a prompt determination of whether they are eligible to run and serve again, a dark cloud will be cast over Knox County electoral and governmental processes. If they are elected and take office prior to such a determination, there would be doubts about the validity of their actions. They would also remain subject to suits to remove them from office, creating vacancies to be filled by County Commission appointment until a special election could be held to select a successor. All of this is perfectly calculated to undermine the public’s confidence in county government. Yet the path to getting a determination of their eligibility is anything but clear. Indeed, roadblocks appear at almost every turn that are thwarting efforts to do so. Consider:

• Lawyer Herb Moncier has sought to get Sheriff Tim Hutchison declared ineligible in a Chancery Court suit brought on behalf of former County Commissioner Bee DeSelm. But Moncier’s efforts have proven to be a windmill-tilting exercise because of a well-established legal precept that “ordinary citizens” don’t have standing to bring such suits. The rationale behind this precept is that if they could, the courts would be clogged with frivolous lawsuits on the part of anyone with axes to grind.

• District Attorney General Randy Nichols clearly has standing to get the issue resolved by initiating what’s called a quo-warranto proceeding, but he has declined Moncier’s request to do so. “That’s not my line of work. Let the chancellors decide it. I’m not an expert in that stuff,” Nichols told me in an interview. Moncier would be able to establish standing for DeSelm if he could prove that Nichols’ decline was an “abuse of discretion” on the AG’s part. But that’s a difficult proof to make, and not even the flamboyant Moncier has undertaken it.

• Knox County’s Law Director Mike Moyers probably has standing to seek what’s called a declaratory judgment, but he has recused himself from the matter because of an asserted conflict of interest arising from the fact that he represents all arms of county government.

• The Knox County Election Commission has no authority to determine the eligibility of candidates for any office. It’s deemed a purely “ministerial body” that oversees the conduct of elections.

• The state’s coordinator of elections, Brook Thompson, is mandated by state law to not let any “person’s name [be] placed on any ballot wherein such person is seeking to be nominated or elected to an office for which such person is ineligible….” But in the one instance in which Thompson sought to have a candidate disqualified in a Knox County election (namely former Law Director Richard Beeler), Chancellor Daryl Fansler ruled that Thompson didn’t have the authority to do so.

• That leaves another candidate for an office as the only person whom the courts have deemed to have standing to contest an opponent’s eligibility. So if Randy Tyree gets enough write-in votes in the May 2 Democrat primary for sheriff to get on the general-election ballot, he could challenge Republican Hutchison’s eligibility. Similarly, Republican Register of Deeds Steve Hall could be challenged by his Democrat opponent, Scott Emge.

However, candidates shouldn’t have to bear the onus and expense of suing to get their opponents disqualified. Bringing such a suit could be prejudicial to a candidate’s chances of getting elected and divert attention from the campaign to a court proceeding.

All of which leads me to propose an amendment to the state’s election law to make a narrow exception to the rule that precludes the Knox County Election Commission from determining a candidate’s eligibility. The exception, which the State Legislature would have to enact very quickly, would provide that:

In a county that has a charter form of government and whose charter establishes term limits for elected officials, that county’s election commission shall have the authority and the duty to determine whether a candidate for an office to which term limits may apply is thereby eligible to hold that office.  

The legislation would also need to make provision for expedited appeal of such determinations directly to the state Supreme Court and for selection of replacement candidates—all within tight timeframes. Time is running very short, but the public deserves a better way of resolving term-limit applicability issues than the law presently affords.

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