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McFARLAND vs PEMBERTON

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State’s highest court sides with judge

By Damon Lawrence

In a 3-2 decision filed Wednesday, the Tennessee Supreme Court upheld two lower court decisions that tossed out Tom McFarland’s complaint over the 2014 circuit court judge election.

McFarland lost the race to Mike Pemberton. After the defeat, he sought to have the results voided by filing a complaint in Roane County Chancery Court.

Senior Judge Jon Kerry Blackwood and the Court of Appeals determined the complaint was time-barred. The Supreme Court agreed.

“Looking at the gravamen of Mr. McFarland’s complaint, though it is styled as an election contest, it is essentially a petition for writ of certiorari seeking judicial review of the decision of the (Roane County) Election Commission and, thus, was subject to the 60-day statute of limitations for such a petition,” the Supreme Court said.

“Mr. McFarland’s complaint was filed well after expiration of the 60-day period, so we affirm the lower courts’ dismissal of the complaint as untimely.”

Wednesday’s decision comes more than a year after the sides appeared before the justices in Knoxville to argue their positions.

“I think they wanted to make sure they got it right — and they did,” Pemberton attorney Jennifer Raby said.

McFarland said Thursday that he could not comment on the decision because he had not yet reviewed the ruling.

“I understand the court was divided,” he said.

The 9th Judicial District, in which Pemberton serves, is made up of Roane, Loudon, Morgan and Meigs counties. Months before the Aug. 7, 2014, election, Willis Hall, a former McFarland client, claimed Pemberton wasn’t a resident of the district and filed a complaint to have him removed from the ballot.

The Roane County Election Commission addressed the matter during a public hearing on April 28, 2014. After listening to arguments from Pemberton and Hall attorney Wes Kliner, its members voted unanimously to place Pemberton on the ballot.

McFarland, the only other candidate in the race, didn’t participate in the public hearing. However, the courts determined he was an aggrieved party to the Election Commission’s decision, which started his 60-day clock to contest the matter in court.

“In sum, Mr. McFarland had an available statutory remedy, to seek judicial review of the Election Commission’s decision under Section 27-9-101, and he failed to avail himself of this statutory remedy during the election with Mr. Pemberton,” the Supreme Court said.

In his appeal, McFarland raised issues with the Election Commission’s hearing, noting that Pemberton’s statements were not sworn and the parties weren’t able to engage in discovery.

“We note that, even though Mr. McFarland was Mr. Pemberton’s opposing candidate in the circuit judge election, Mr. McFarland nevertheless chose not to participate in the Election Commission hearing,” the Supreme Court said. “Had he participated, he could have raised his concerns about the proceedings, such as the fact that Mr. Pemberton’s statement was unsworn.”

Justice Holly Kirby delivered the opinion for the Supreme Court. He was joined by justices Jeffrey S. Bivins and Roger A. Page.

“Mr. Pemberton quite publicly accused Mr. McFarland of manipulating the process by enlisting a voter – Mr. Hall – to challenge Mr. Pemberton’s residency,” the Supreme Court said. “In this way, Mr. Pemberton claimed, Mr. McFarland got the Election Commission to resolve the issue of Mr. Pemberton’s residency before the election while retaining the opportunity for a ‘second bite at the apple’ in the form of a post-election contest.”

Raby pointed out that four bodies have now reviewed the issue – the Election Commission, the Chancery Court, Court of Appeals and Supreme Court.

“I think that’s important,” she said. “All down the line we prevailed on these issues, and we’re very pleased.”

Pemberton was presiding over a jury trial at the Roane County Courthouse on Thursday.

“I think he feels vindicated because he is a resident of this county,” Raby said. “He feels that the judicial process has worked. The system that we have where the Election Commission are charged with the duty to make sure that a candidate is eligible, that process has been upheld. He feels like the appellate court system has worked. Mr. McFarland has certainly had his day in court.”

Justices Cornelia A. Clark and Sharon G. Lee filed dissenting opinions on Wednesday that took aim at the majority decision.

“Here, had Mr. McFarland filed a lawsuit as the majority requires, a trial court could not have decided the case before voters began casting their ballots,” Lee said. “It makes no sense to require a candidate to file a lawsuit within 60 days of an election commission’s decision when, by the time the lawsuit is filed, voters have received their absentee ballots in the mail.”

Clark said she would have reversed the lower court decisions and remanded the case for further proceedings.

“The public hearing lacked the appearance of impartiality essential to judicial and quasi-judicial proceedings,” Clark wrote. “During the hearing, members of the Election Commission referred to Mr. Pemberton by his first name, and at least one member of the Election Commission disclosed his friendship with Mr. Pemberton. The Election Commission announced rules at the beginning of the hearing but did not abide by those rules strictly, allowing Mr. Pemberton’s wife to speak twice, despite the three-minute limitation.”

Clark also contends the Election Commission had no authority under state law to hold a “quasi-judicial hearing” to resolve a pre-election challenge to Pemberton’s residency.

“My conclusion that county election commissions do not have such authority is grounded on the utter lack of statutory authority conferring such authority on them, and on the potential conflicts that may result from the majority’s decision judicially granting such authority,” Clark said.