Brief in Support of Motion for Extraordinary Relief and Expedited Hearing ______

IN THE CHANCERY COURT FOR DAVIDSON COUNTY, TENNESSEE AT NASHVILLE

LUDYE N. WALLACE, ) ) Petitioner, ) ) v. ) No. ______) METROPOLITAN GOVERNMENT OF ) NASHVILLE AND DAVIDSON COUNTY ) and DAVIDSON COUNTY ELECTION ) COMMISSION, ) ) Respondents. ) ______

PETITIONER’S BRIEF IN SUPPORT OF MOTION FOR EXTRAORDINARY RELIEF AND EXPEDITED HEARING ______

Comes now the Petitioner, by and through undersigned Counsel, and submits this brief in support of his Motion for Extraordinary Relief and Expedited Hearing. Significantly, in a prior action before the Court of Appeals, counsel for both parties fully briefed the identical question presented in this case, rendering expedited review of this action particularly appropriate. See Hamilton v. Metro. Gov't of Nashville, No. M2016-00446-COA-

R3CV, 2016 WL 6248026 (Tenn. Ct. App. Oct. 25, 2016).1 To enable prompt resolution of this case, counsels’ prior briefing in Hamilton is attached in a Notice of Filing Supplemental Papers for the Court’s review. To address the same question presented as applied to this case, however, the Petitioner respectfully states as follows:

1 In Hamilton, the Court of Appeals did not adjudicate the merits of the question presented, instead dismissing that case on standing grounds only. See 2016 WL 6248026, at *4 (Tenn. Ct. App. Oct. 25, 2016). I. FACTS

On Friday, March 9, 2018, in a publicly noticed meeting, DCEC voted affirmatively in a split, party-line, 3-2 vote to hold an election to fill the vacancy for the office of Mayor on

August 2, 2018 (the “Vacancy”). The Vacancy was created by the resignation of former Mayor

Megan Barry. DCEC received legally required notice of the Vacancy by letter dated March 6,

2018 from the Metro Clerk. The Vacancy created an opening in the office of Mayor.

II. ISSUE

DCEC voted affirmatively to hold an election to fill the Vacancy on August 2, 2018.

Charter § 15.03 requires a special election to fill the Vacancy, as described in Charter §

15.01. Yet, based upon the advice of DCEC’s legal counsel who announced it was the position of the Metro Department of Law that the election to fill the Vacancy was not a special election,

DCEC instead set the election for August 2, 2018. The Court must determine as a matter of law whether Charter § 15.03 is applicable thereby mandating a special election on a date not before on May 1, 2018 or between May 21 and May 26, 2018 pursuant to Tenn. Code Ann. §

2-14-102(a)-(b)(1).

III. APPLICABLE LAW

Metro Charter § 15.03 states, in its entirety, the following:

Sec. 15.03.—Special Elections.

There shall be held a special metropolitan election to fill a vacancy for the unexpired term in the office of mayor and in the office of district council member whenever such vacancy shall exist more than twelve (12) months prior to the date of the next general metropolitan election. The special election shall be ordered by the county commissioners of elections and they shall give notice thereof as provided by Tennessee Code Annotated section 2-14-105. When a vacancy exists in the office of vice mayor or in the office of councilmember-at-large, said office shall remain vacant until the next general election at which time such vacancy shall be filled; however, in no event shall a special election be held to fill such vacancy. If in such special election to fill a

2 vacancy for the unexpired term of the office of mayor or district council member, or in the general election at which time a vacancy in the office of vice mayor or councilmember-at-large, no candidate shall receive a majority of all the votes cast for such office, a runoff election shall be held five (5) weeks subsequent to the first special election to fill a vacancy in accordance with the provisions hereinbefore set forth in the case of a general metropolitan election. The provisions of section 15.01 hereof with respect to voting in general metropolitan elections and with respect to qualifying as a candidate shall apply to special elections and to general elections at which time a vacancy is filled.

The first sentence therein is clear and as pertinent here, as follows:

There shall be held a special metropolitan election to fill a vacancy for the unexpired term…in the office of district council member whenever such vacancy shall exist more than twelve (12) months prior to the date of the next general metropolitan election. (Emphasis added).

Metro Charter § 15.01 states, in its entirety, the following:

Sec. 15.01. - When general metropolitan elections held; who may vote; qualifications of candidates.

For the purpose of electing a mayor, vice-mayor, five (5) councilmen-at-large and thirty-five (35) district councilmen, there shall be held on the first Thursday in April, 1966, and on the first Thursday in August of 1971, and each four (4) years thereafter, a general metropolitan election. At such general election each voter shall be entitled to vote for one (1) candidate for mayor, one (1) candidate for vice-mayor, five (5) candidates for councilmen-at-large, and one (1) candidate for district councilman from the district wherein the voter resides; and the names of all qualified candidates shall be so placed on the ballot or voting machine as to accord the voter such right. All persons who are lawfully registered and who are qualified to vote for members of the general assembly of the State of Tennessee shall be qualified to vote in the metropolitan elections. The name of any candidate shall be included on the ballot or the voting machines when a written petition signed by at least twenty-five (25) qualified voters shall so request and when said petition shall be filed with the county commissioners of election at least within the number of days prior to the election provided by general law for the filing of qualifying petitions of candidates for election to county offices.

Again, the first two sentences therein are clear, and is as follows:

3 four (4) years thereafter, a general metropolitan election. At such general election each voter shall be entitled to vote for one (1) candidate for mayor, one (1) candidate for vice-mayor, five (5) candidates for councilmen-at-large, and one (1) candidate for district councilman from the district wherein the voter resides; and the names of all qualified candidates shall be so placed on the ballot or voting machine as to accord the voter such right.

Metro Charter § 15.04, states in its entirety, the following:

Sec. 15.04. - Applicability of general election laws.

The general election laws of the state shall be applicable to all metropolitan elections, except as otherwise provided in this article.

Tenn. Code Ann. § 2-14-101 provides:

2-14-101. Special elections -- When required.

Special elections shall be held when a vacancy in any office is required to be filled by election at other times than those fixed for general elections.

Tenn. Code Ann. § 2-14-102(a) provides:

2-14-102. Time of holding special election.

(a) Special elections shall be held not less than seventy-five (75) days nor more than eighty (80) days after the officer or body charged with calling the election receives notice of the facts requiring the call. An election for an office shall be held on the same day in every county in which it is held.

(b)(1) If it is necessary to hold a special election to fill a vacant seat in the United States house of representatives, a vacancy in a county office, or a vacancy in any municipal office, and the date for such election, as established under subsection (a), falls within thirty (30) days of an upcoming regular primary or general election being held in that district, the governor, or the county election commission, as specified in § 2-14-103, may issue the writ of election for the special election for the date which will coincide with the regular primary or general election.

IV. ARGUMENT

A. “GENERAL METROPOLITAN ELECTION” IS SPECIFICALLY AND UNAMBIGUOUSLY DEFINED BY THE CHARTER. BASED UPON THAT DEFINITION, THE CHARTER REQUIRES A SPECIAL ELECTION.

4 Charter § 15.03, provides that:

"There shall be held a special metropolitan election to fill a vacancy for the unexpired term in the office of mayor…whenever such vacancy shall exist more than twelve (12) months prior to the date of the next general metropolitan election….” (Emphasis added).

Thus, this case turns entirely upon what constitutes “the next general metropolitan election.” Helpfully, the Charter also specifically defines that term. Specifically, Charter §

15.01 states:

[f]or the purpose of electing a mayor, vice-mayor, five (5) councilmen-at-large and thirty-five (35) district councilmen, there shall be held on the first Thursday in April, 1966, and on the first Thursday in August of 1971, and each four (4) years thereafter, a general metropolitan election. (Emphasis added).

In other words, a “general metropolitan election” is when the office of mayor, vice- mayor, five council members at-large, and thirty-five district council members are indeed on the ballot. The last “general metropolitan election” when the foregoing candidates were on the ballot was August 2015. The next time those offices appear on the ballot will be August

2019.

Following the expressly defined and Charter-mandated definition of “general metropolitan election,” the “general metropolitan election” as the election “held on the first

Thursday in August of 1971, and each four (4) years thereafter…. To follow this Charter described definition, the “general metropolitan election” shall be on the first Thursday in

August of 1971, 1975, 1979, 1983, 1987, 1991, 1995, 1999, 2002, 2007, 2011, 2015, and as applicable here, 2019. Consequently, considering the date of this action, the next “general metropolitan election” is August 2019, which is also when the office of mayor, vice-mayor, five council-at-large, and 35 district council member offices will be on the ballot together

5 again. Because August 2019 is more than twelve (12) months from the date the vacancy was created, Charter § 15.03 mandates a special election. Id.

B. PUBLIC POLICY TO ELECT MAYORS ON A NON-PARTISAN BASIS

The Metro Charter formalizes a public policy precluding mayoral elections from being contaminated by party politics. In other words, as a matter of public policy, we, as a city, codified an unambiguous Charter that prevents elections for mayor from coinciding with partisan state or federal elections. If the relief requested by the Petitioner is denied, that result will transpire for the first time in our city’s history.

Nashville has been specific about this public policy throughout its history and taking the DCEC’s position to its practical conclusion would directly contravene it. The August 2,

2018 election is an election that is held at the same time as a state partisan primary for the purpose of selecting state house and senate members, in addition to being a federal primary for members of Congress. To conduct an election for the Vacancy, as commanded by DCEC, would violate the Charter as stated herein, and would also violate long-established public policy of the City of Nashville.

The most recent manifestation of the city’s public policy regarding non-partisan elections for members of the metro council, the office of mayor, and vice-mayor was in

RS2011-6072: a Resolution adopted by the Metropolitan Council of Nashville and Davidson

County on April 19, 2011 and signed by Mayor Karl F. Dean on April 21, 2011. This resolution provided, in pertinent part, that:

WHEREAS, the founders of the Metropolitan Government of Nashville and Davidson County chose to make local elected offices non-partisan; and

2 A true and correct copy of RS2011-607, which was adopted by a vote of 29-5 is available at this link: http://www.nashville.gov/mc/resolutions/term_2007_2011/rs2011_1607.htm with a copy thereof attached hereto as Exhibit No. 1.

WHEREAS, the offices of Metropolitan Mayor, Vice Mayor, and Council have been non-partisan since the Charter became effective in 1963; and

WHEREAS, Section 15.01 of the Metropolitan Charter provides that the election for these offices is to be held on the first Thursday of the month every four years from and after 1971; ….

This Resolution accurately reflects the public policy of the City of Nashville to hold elections for the offices of mayor, vice-mayor, and metro council members on dates when no other partisan state or national elections are being conducted. Moreover, the Resolution recites accurately that the dates for elections for those offices are to be held on the first Thursday of the month every four years from and after 1971 as stated in Charter § 15.01. Consequently, the public policy of the City of Nashville as reflected in Charter § 15.01 and stated explicitly in the RS2011-607, and as applied here, is that the next “general metropolitan election” for purposes of this issue is indeed in August 2019, not August 2018 as held by DCEC.

C. LEGISLATIVE HISTORY OF CHARTER § 15.03 and THE BALLOT FOR THE REFERENDUM TO AMEND CHARTER § 15.03.

Further evidence of Nashville’s public policy against partisan contamination in its elections is found in the legislative history of Resolution RS2007-1846. 3 RS2007-1846 amended Charter § 15.03 by deleting the existing language in its entirety and replacing it with the language currently found in Charter § 15.03, and it has not been amended since. The

Council approved this resolution on June 5, 2007, commanding the DCEC to put the new language before the voters in a referendum. The referendum was ultimately approved in the next general metropolitan election, held on the first Thursday in August 2007.

3 A true and correct copy of RS2007-1846 and an exact duplicate of the ballot submitted to voters are available attached hereto as Exhibit No. 2.

7 Of special note, with respect to RS2007-1846, the Council commanded the DCEC to provide the following language on the ballot for voter consideration in the August 2, 2007 election:

FOR THE BALLOT

Amendment No. ______

This amendment would require that a special election be held to fill a vacancy in the office of mayor and a vacancy in the office of district councilmember whenever more than twelve (12) months remain in the unexpired term. (Emphasis added).

The expressed public policy of the Metro Council, as announced to the public and promulgated by the DCEC, was that Charter § 15.03 would set a special election for a vacancy in the office of district council member whenever more than twelve months remain in the unexpired term. See id. The foregoing statement following “for the ballot” was literally on the ballot in bold typeface directly above the text of the proposed Charter amendment, which is codified as Charter § 15.03.

Thus, new Charter § 15.03, as applicable here, triggers a special election for Mayor in

May 2018, not August 2018. Charter § 15.03 reflects that the offices of mayor and district councilmember—as compared with vice mayor or at-Large council member—demand snap elections to fill a vacancy. Thus, vacancies in the office of vice-mayor and council at-large do not warrant the calling of a special election, while vacancies in the office of mayor or district councilmember do. In fact, unlike vacancies for mayor, vacancies in the office of vice-mayor and council at large are expressly prohibited by Charter § 15.03 from being filled by a special election.

D. DCEC’S ACTIONS OR OMISSIONS ARE CAUSE FOR INJURY AND DELAY

8 Former Mayor Megan Barry was duly elected in a runoff election in September 2015, after she received less than 50% of the required votes in the general metropolitan election held on August 6, 2015, as is required by the Charter. The Vacancy created by her resignation was legally noticed to DCEC on March 6, 2018.4 The term of office for the mayor, vice-mayor, five council at-large, and thirty-five district council members expires in August 2019 at the next general metropolitan election pursuant to the Charter. Thus, the span of time between the Vacancy on March 6, 2018 and the expiration of the applicable term of office on August

2019 exceed twelve months as contemplated by Charter § 15.03.

Consequently, pursuant to Charter § 15.03, the DCEC must hold a special election to fill the Vacancy. Pursuant to Tenn. Code Ann. § 2-14-102(b)(1), the election may be held on

May 1, 2018, or on a date not sooner than May 21, 2018 and not later than May 26, 2018.

Pursuant to Tenn. Code Ann. § 2-14-106(a), the qualification deadline for the special election to fill the Vacancy shall be not sooner than March 22, 2018 if the special election is set for

May 1, 2018. Alternatively, if the special election is set between May 21 and May 26, 2018, the qualification deadline would be April 12, 2018. Further, DCEC is compelled to provide legal public notice of the order commanding the special election on a date not later than ten

(10) days after the receipt of the order commanding a special election pursuant to Tenn.

Code Ann. § 2-14-105.

F. DISTINGUISHING STATE EX REL. WISE V. JUDD

In State ex rel. Wise v. Judd, 655 S.W.2d 952, 953 (Tenn. 1983), the Tennessee

Supreme Court addressed a related issue that is materially different from the question presented in the instant case. Notably, Wise also predates the aforementioned amendment

4 Copy of letter from Metro Clerk to Administrator of Elections Jeff Roberts is attached hereto as Exhibit No. 3.

9 to the relevant Charter provision. As a result, even if Wise had some bearing on this case— and it does not—it cannot be considered controlling, because the applicable Charter provision has since been amended.

State ex rel. Wise v. Judd specifically addressed the language “preceding general election” for purposes of a dispute regarding the applicable threshold for petition gathering. Id. at 953. The question before the Supreme Court was whether the “preceding general election” referenced in Charter § 19.01 was to a state election or to a general election held within Davidson county. Critically, however, Wise reflects that the issue presented in this case was neither raised, nor briefed, nor adjudicated.

Contrary to the Respondent’s likely argument in this case, the Wise Court never held that the August 1982 election it considered qualified as a “general election.” Further, because either preceding Metro election sufficed to resolve the parties’ dispute under the circumstances of that case, it did not need to. Instead, the Tennessee Supreme Court did precisely what Mr. Wallace has done here: it looked to the definition of “general metropolitan election” that is expressly established by Metro Charter § 15.01. See Wise, 655 S.W.2d at 953.

Specifically, the Wise Court explained that “[t]he charter, § 15.01, provides for

Metropolitan general elections and refers to them as such. We think that the reference in §

19.01 under consideration here clearly is to municipal elections.” This is the full extent of the

Court’s analysis of the matter, and as Mr. Wallace himself will argue in this case, the text of

Metro Charter § 15.01 controls the inquiry. This case is, in fact, that simple.

Thus, following Wise guidance, what is the “next general metropolitan election” for the purposes of determining whether Charter § 15.03 has been triggered relative to the vacancy in office of Mayor? As stated in Charter § 15.01, a “general metropolitan election” is

10 defined, in short, as the election that takes place on the first Thursday in August of 1971, and each of the 4 years thereafter, which are 1975, 1979, 1983, 1987, 1991, 1995, 1999, 2003,

2007, 2011, 2015, and…2019. In fact, under the Charter, there are only two ways to elect a mayor of Nashville: (1) in a general Metropolitan election, and (2) in the special election that the Petitioner demands.

Accordingly, under Charter § 15.01, a mayor may be elected in the “general metropolitan election” held in August every four years and thereafter beginning in 1971.

This “general metropolitan election” was last held in August 2015, when Megan Barry won election. The next “general metropolitan election” for mayor is scheduled for August 2019.

As a result, a special election is required.

Other than a general metropolitan election, the only other method the Charter provides for electing a Mayor is set forth in Section 15.03, which requires a special election when a vacancy occurs “more than twelve (12) months prior to the date of the next general metropolitan election.” The timing of such a special election would be governed by

Tennessee law as provided in Tenn. Code Ann. § 2-14-102. The Metro Charter provides for no other authority to hold an election to fill the Office of the Mayor, and none exists.

F. GROUNDS FOR EXPEDITED HEARING

The exigent circumstances surrounding this case warrant an expedited hearing, because the Respondents’ actions violate the Charter and applicable state statutes, and because the relief sought by the Petitioner will be unavailable unless the Court takes immediate action. Respondent DCEC’s order setting an illegal election occurred on Friday,

March 9, 2018 at 4:30 p.m. The Petitioner’s action was filed as soon as possible thereafter.

11 V. CONCLUSION

Based upon the foregoing, Petitioner hereby submits this Brief in Support of

Extraordinary Relief and Expedited Hearing.

Respectfully submitted,

By: ______Jamie R. Hollin, BPR No. 025460 511 Rosebank Avenue Nashville, TN 37206 Tel. 615-870-4650 [email protected] Attorney for Petitioner

Certificate of Service

I hereby certify that a true and correct copy of foregoing motion was hand delivered to Respondents on this ______day of March, 2018, at the following address:

Metropolitan Department of Law Metro Courthouse 1 Public Square, Suite 108 Nashville, Tennessee 37219

______Jamie R. Hollin

12 Exhibit No. 1

RESOLUTION NO. RS2011-1607 3/11/18, 755 PM

RESOLUTION NO. RS2011-1607

A resolution opposing any state legislation that would change the Metropolitan Mayor, Vice Mayor, and/or Council terms of office to coincide with November partisan elections.

WHEREAS, the founders of the Metropolitan Government of Nashville and Davidson County chose to make local elected offices non-partisan; and

WHEREAS, the offices of Metropolitan Mayor, Vice Mayor, and Council have been non-partisan since the Charter became effective in 1963; and

WHEREAS, Section 15.01 of the Metropolitan Charter provides that the election for these offices is to be held on the first Thursday of the month every four years from and after 1971; and

WHEREAS, legislation is currently pending in the Tennessee General Assembly that would attempt to override the Metropolitan Charter and require the elections for the Mayor, Vice Mayor, and Members of Council to be held at the November Presidential elections; and

WHEREAS, having Metropolitan elections coincide with partisan Presidential elections would negatively impact the democratic process and destroy the purpose of having a non-partisan elected body; and

WHEREAS, local governments in Tennessee should have the freedom and authority to make decisions that are solely applicable to the Metropolitan Government without state interference; and

WHEREAS, the stated purpose of the pending state legislation is to address the problems associated with having the redistricting process in the same year as Council elections; and

WHEREAS, if the citizens of the Metropolitan Government desire to have the Metropolitan elections coincide with November partisan elections, the Metropolitan Charter includes a mechanism for amending the Charter to provide for such on a local level

NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY:

Section 1. That the Metropolitan County Council hereby goes on record as opposing any state legislation that would change the Metropolitan Mayor, Vice Mayor, and/or Council terms of office to coincide with November partisan elections.

Section 2. The Metropolitan Vice Mayor is requested to charge the Council Charter Revision Committee with examining the need to amend the Metropolitan Charter to address the concerns associated with the consideration of new Council districts in an election year.

Section 3. The Metropolitan Clerk is directed to send a copy of this Resolution to each member of the Davidson County Delegation to the Tennessee General Assembly.

Section 4. This Resolution shall take effect from and after its adoption, the welfare of The Metropolitan Government of Nashville and Davidson County requiring it.

Sponsored by: Jerry Maynard, Ronnie Steine, Megan Barry, Bo Mitchell, Lonnell Matthews, Mike Jameson, Erica Gilmore, Sam Coleman, Greg Adkins, Walter Hunt, Frank Harrison, Sandra Moore, Buddy Baker, Edith Taylor Langster, Parker Toler, Darren Jernigan, Jamie Hollin, Rip Ryman, Anna Page, Erik Cole, Sean McGuire, Tim Garrett, Jim Forkum, Emily Evans, Carter Todd, Randy Foster, Bruce Stanley, Kristine LaLonde, Vivian Wilhoite, Jason Holleman http://www.nashville.gov/mc/resolutions/term_2007_2011/rs2011_1607.htm Page 1 of 2 RESOLUTION NO. RS2011-1607 3/11/18, 755 PM

LEGISLATIVE HISTORY

Referred: Rules & Confirmations Committee Introduced: April 12, 2011 Deferred: April 12, 2011 Adopted: April 19, 2011 - Roll Call Vote Approved: April 21, 2011 By:

http://www.nashville.gov/mc/resolutions/term_2007_2011/rs2011_1607.htm Page 2 of 2 Exhibit No. 2

RESOLUTION NO. RS2007-1846 3/11/18, 756 PM

RESOLUTION NO. RS2007-1846

A resolution providing amendments to the Charter of The Metropolitan Government of Nashville and Davidson County, Tennessee, in accordance with Article 19, Section 19.01, and setting forth a brief description of each amendment to be placed on the ballot.

WHEREAS, Article 19.01 of the Charter of The Metropolitan Government of Nashville and Davidson County, Tennessee, provides that the Metropolitan Government shall not adopt a resolution proposing amendments to the Charter more often than twice during the term of office of members of the Metropolitan Council; and

WHEREAS, Article 19, Section 19.01, also requires to be set forth in the adoption resolution a brief description of each amendment so worded so as to convey the meaning of said amendment; and

WHEREAS, it is the desire of the Metropolitan Council by adopting this resolution to fulfill these two Charter requirements.

NOW, THEREFORE, BE IT RESOLVED BY THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY:

Section 1. Pursuant to the provisions of Section 19.01 of the Charter of The Metropolitan Government of Nashville and Davidson County, the proposed amendments to the Charter of The Metropolitan Government of Nashville and Davidson County, attached hereto, are submitted to the people for approval in the manner provided by Section 19.01 of the Charter.

Section 2. The date prescribed for holding of the referendum election at which the electorate of the Metropolitan Government will vote to ratify or reject the amendments proposed in Section 1 of this Resolution shall be August 2, 2007.

Section 3. This Resolution shall take effect from and after its adoption, the welfare of The Metropolitan Government of Nashville and Davidson County requiring it.