Appeal Dismissed, New Trial Date Set in Election Commission Lawsuit

April 18, 2011
by: 
Dwayne Page
John Harris, III

Former election administrators in DeKalb and several other Tennessee counties, claiming they were ousted in 2009 by GOP controlled county election commissions because of their political party affiliation, have lost an appeal challenging a recent court ruling over whether they can seek monetary damages against the election commissioners who didn't reappoint them.

Locally, the federal court lawsuit was filed by former election administrator Lisa Peterson who was not re-appointed in 2009 by the Republican majority of the local election commission. Another case involving the election commission, also filed by Peterson in DeKalb County Chancery Court is still pending.

In December, U.S. District Judge Thomas Wiseman found that the Republican election commissioners named in the lawsuit in DeKalb and other counties were not subject to liability for monetary damages sought, in their official capacities as "state actors". The plaintiff's claims, to the extent they sought declaratory and injunctive relief, remain pending. After Wiseman's ruling, attorneys for the former administrators or plaintiffs filed an appeal to the U.S. 6th Circuit Court of Appeals in Cincinnati.

According to John Harris, III of Nashville, an attorney for the DeKalb County Election Commission, the 6th Circuit Court of Appeals has now dismissed the appeal as premature, meaning that more proceedings must be held at the trial court level before an appeal can be considered at the appellate level. The dismissal of the appeal does not prohibit the parties from appealing any final judgment in the case. Meanwhile, Harris said a new trial date on the remaining issue in the case has been set for September, 2012. "The district court, in December, dismissed all of the monetary claims against the election commissioners based upon a concept called qualified immunity. Basically, that's a finding that there is no just basis to proceed on claims that these administrators were wrongfully terminated because the law prior to that point in time was unclear. The former administrators, who are the plaintiffs in the case, appealed that decision to the 6th Circuit Court of Appeals which is a federal court sitting over Tennessee although its in Cincinnati. That court said we're going to reject the appeal because we believe that its premature. There needs to be further proceedings at the trial court before they would entertain it as an appellate matter. So the appeal in March was rejected by the (appellate) court in Cincinnati and that sends it back to the trial court level for further proceedings. Since it came back, the trial court has entered an order setting out various things that has to be done over the next year and a half. The case is now set for trial in September, 2012," said Harris.

With the appeal having been dismissed, Harris said the only significant remaining issue to be decided at the trial court level is the "injunctive relief" claim in the lawsuit and a jury trial date has been set in U.S. District Court for Tuesday, September 18, 2012 at 10:00 a.m. in Nashville. "The main issue now is whether it is allowable under federal law to replace a public official with the authority and discretion that an administrator of elections had based only upon party affiliation. The court could find that this is okay because a person holding that position has sufficient political discretion in carrying out their job that party affiliation is relevant. It could easily do that here because of the fact that everybody who serves as a commissioner, either at the state or at the county level, is basically selected along party lines. Or the court could find that these are just ministerial jobs and there is no significance to party affiliation in making that selection. If the court finds that party affiliation is irrelevant, it could then issue an injunction telling future election commissions that they cannot consider party affiliation in selecting or releasing an existing administrator of elections. If it grants relief and puts down an order saying election commissions can't consider party affiliation then it also has the authority to award, under the federal statute, attorneys fees in favor of the plaintiffs and that's really the biggest issue from a short term perspective because if the court rules in favor of the plaintiffs on this declaratory aspect of the case, will it then award attorneys fees in favor of the plaintiffs. If so, the concern I think most counties should have is that an award of attorneys fees in this case, given the amount of time its going to take and the possibility of an appeal, could easily be hundreds of thousands of dollars. At this point, the court has ruled that there cannot be monetary damages for things like wrongful termination or back pay. But if you consider an award of attorneys fees damages then the attorneys fees award is still a possibility," said Harris.

Meanwhile, legislation has been filed in the Tennessee General Assembly that if approved would require terms of county administrators of elections to expire when the commission's term expires. It would also allow county election commissions to consider political party affiliation, knowledge and experience when hiring administrators

Republican members of the DeKalb County Election Commission are Walteen Parker, Barbara Vanatta, and Jim Dean. Democratic members are Harry Lasser and Kenneth Moore.

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