KNOX COUNTY ELECTION )
COMMISSION, )
)
Petitioner, )
)
v. ) No. 182753-1
)
SHELLEY BREEDING, )
)
Respondent. )

MOTION IN LIMINE

Comes now the Respondent, by counsel, before the introduction of any proof in this cause, and moves the Court for an Order restricting the Petitioner from advocating that the Respondent’s residency is in Anderson County or otherwise taking an adversarial position. In support of this Motion, Respondent states as follows:
Before reviewing Petitioner’s Pre-Trial Brief, Respondent was under the impression that the Petitioner filed this action solely to seek a declaration of the law, based upon the facts of record. Respondent believed that the Petitioner would not and could not take an adversarial or advocacy position seeking the Court to disqualify the Respondent as a candidate. To permit Petitioner to advocate a position clearly adverse to the Respondent runs counter to the purpose of the Declaratory Action under which the instant case was instituted.
At the meeting wherein the Knox County Election Commission voted to follow the direction of the State Coordinator of Elections in requesting that this Petition for Declaratory Judgment be filed (April 19, 2012), it did not vote on whether the Respondent should be certified as a candidate. It is believed that the minutes of that meeting will reflect that no action related to Respondent’s qualifications to be certified as a candidate was taken. A Motion calling for such an action, by Commissioner Francis, was voted down. The Election Commission then voted to instruct the Knox County Law Director to file the instant Declaratory Judgment action. According to comments made to the Election Commission by the Knox County Administrator of Elections, this action was taken at the “direction” of the State Coordinator of Elections.
However, the Petitioner’s Brief not only argues that Respondent should be determined to be a resident of Anderson County, but advances a theory that the Respondent somehow has the burden of proving that she is a Knox County resident. These positions are clearly contrary to the Petition and go far beyond the scope of the Declaratory Judgment sought under these circumstances.
At paragraph 4 of the Petition, Tennessee Code Annotated § 2-5-204(a) (2003) is cited regarding the provision that each county election commission shall place the name of every “qualified candidate” on the ballot. Likewise, the converse that “[t]he county election commission has a duty to exclude from the ballot a potential candidate who is ‘clearly unqualified’ ” is cited from Tenn. Op. Atty. Gen. No. 82-312, 1982 WL 178022 (Tenn. A.G) (emphasis added by Petitioner).
Although Respondent believes she is a qualified candidate and hopes for an expeditious resolution of this question, the Election Commission’s actions seem to amount to asking the Court for an advisory opinion prior to its taking the necessary vote to qualify or disqualify the Respondent. The Respondent contends that this is improper and may cause more confusion and litigation. Following the April 19th meeting and in general discussions with counsel for Petitioner, Respondent and her counsel believed that the Election Commission was taking no position on her residential status and was solely asking the Court for such a Declaration. Now, it is obvious that the Election Commission seeks to advocate that Respondent is in fact a resident of Anderson County and wishes to present facts and legal arguments to support that conclusion. However, the Election Commission refused to take a vote to support this contention and its minutes are silent as to the Election Commission’s actions regarding the very function it is mandated to perform by both the Tennessee Code and the Knox County Charter.
In further support of this Motion in Limine, the Respondent relies upon and incorporates by reference her contentions regarding estoppel as set out in her Pre-Trial Brief and her objection to the “Opinion Letter” of Mark Goins as stated in her Answer to the Petition.
Finally, at the conclusion of the Petitioner’s Pre-Trial Brief, the Court is asked to “declare whether or not Ms. Breeding is a resident of Knox County, Tennessee for the purpose of being eligible to run for State House of Representatives, District 89, in Knox County.” Unfortunately, given the change in Petitioner’s attitude from merely seeking such a Declaration to openly advocating that Respondent is a resident of Anderson County for the purposes of her certification as a candidate, it appears that the Election Commission is simply looking for a way out. It seeks to avoid its responsibilities under the Constitution, the Tennessee Code and the Knox County Charter by seeking an advisory opinion.
Respectfully submitted,

_________________________________
Billy J. Stokes (BPR #06839)
Jon M. Cope (BPR #20031)
STOKES, WILLIAMS, SHARP & DAVIES
920 Volunteer Landing Lane, Suite 100
Knoxville, Tennessee 37915
Attorneys for Respondent

Welcome to Knox County.

I'm not at all sure, but I'm wondering if the reason the KCEC has taken an adversarial position in this brief is because there is, in fact, a "disputed fact?"

I used a legal dictionary to try to understand the difference between "declaratory judgment" and "summary judgment," and it appears that the former is used when no material facts are in dispute, but the latter is used when one or more material facts is in dispute.

Given that Shelley disputes the accuracy of the KGIS map reflecting the location of her home in Anderson County, isn't it the case that a material fact is in dispute?

Is it therefore the case that KCEC has tried with this brief to request declaratory judgment, when the more appropriate brief would have been one asking for summary judgment, so that this disputed material fact might also have been answered?

I'm way over my head, you understand. Just asking...

Was my above question clear?

I'm asking whether it's possible to settle an issue of this sort by filing a Request for Declaratory Judgment when one or more issues of material fact is in dispute, in this case the reliability of the map the KCEC is using to determine the location of Shelley's house.

I have no idea. I'm just asking.

This is all so stupid. Why wouldn't they apply '"tie goes to the runner"? If the property line really is that much in doubt. What does it really matter? They're obviously just trying to keep someone out of the race.

It boggles the mind at the length to which cowards will go in order to tilt the playing field in their favor.

What time is the hearing? Guessing you'll be there Betty?

I am purely speculating here, but I do wonder if Tim Hutchinson has any role in this. He's running for the Republican nomination for this same seat, and I expect if he's successfully nominated, he would greatly prefer to run unopposed in the general election.

Election law is not supposed to be construed in favor of disenfranchising citizens.

My prediction:

This judge will say she has a right to stay on the ballot. Then the election commission will be forced to do what they didn't want to do last month -- take a straight-up vote.

Mark Goins clearly does not want her on that ballot, and the Republicans on the EC will have to choose between doing his bidding and honoring the court decision that was rendered by a well-respected republican judge who drove up here from Chattanooga at their request.

The two Republican lawyers on the panel will have some trouble with that one, I'd say. McNutt'll do whatever Stacey tells him to do.

This whole thing is ridiculous.

This new district was created and gerrymandered by Republicans, for Republicans. The GOP nominee will have a huge numerical advantage no matter who he is. What the hell are they scared of?

Knox County shares a boundary line with, what, six counties? Seven? (Blount, Loudoun, Anderson, Union, Grainger, Sevier, Jefferson-- that's seven) There have got to be scores of people who will find themselves in the same residency situation, should they choose to run for office.

And if Shelley Breeding is thrown off the ballot, then she should also not allowed to vote in Knox County and county government should undertake to cure this situation everywhere else it occurs. Why wait until somebody wants to run for office? Fix it now!

The next time somebody whose property is bisected by a county line comes in to register to vote, the county needs to have a surveyor on staff to go out and survey the property and ascertain exactly whose county the house is in, rather than just letting them choose which county they want to be a part of. Evidently this would require countywide re-surveying, but determining the exact location of every dwelling would be well worth the cost. Right?

Thanks for your work on this issue Betty! I'm very pleased that there's someone in Knoxville willing to do the heavy lifting that good reporting requires.

Oh, forgot to mention:
Stokes and Cope withdrew their Motion in Limine. The judge would have thrown out the case if they hadn't.

I think Shelley will be on the ballot. This Chancellor is a fair judge and has a great reputation for not being "political." He'll decide the case on the facts and the law, say how ambiguous the law is, how the legislature ought to look at it, and conclude that in "close" cases involving a candidate's access to the ballot, the Court will err on the side of inclusion, not exclusion, and will declare that the State has not met its burden to exclude Shelley from the ballot. This should essentially be the end of it.

This is what happens, folks, when we allow the GOP to control the legislature. Why did Bush II draw the line in the sand in Florida in 2000 instead of Ohio? Because he could. Why did the GOP try to keep a presumably unelectable Democrat off the ballot (in a 65%-35% GOP house district)? Because it could.

I think she's a credible candidate and lightning might even strike for her . . . if we can conjure for her a perfect storm, e.g., a Hutchison win, a bloody primary, decent funding, a solid anti-Hutchison, fresh-faced outsider message.

KNS has a story highlighting "jurisdictional issues." The story reports that Breeding pays Knox County property taxes. Deeds and tax records show payment to Anderson Co.

So is the KNS claim updated information clarifying the story, or is this a reporting error? It is possible payments have been made to both counties since each has a deed on file that says the parcel contains portions of both counties.

I believe, technically, Breeding should be paying Knox property tax on the portion of her lot that is in Knox. As a practical matter, that small chunk would assess at such a low value, collecting the tax is hardly worth the bother.

I can't tell from the KNS story exactly what the "jurisdictional issue" is, but from Betty's comment I'm assuming that issue has been handled.

The basis of Goins' argument is a bluff. He is claiming that nothing matters but the physical location of the house on the lot, whereas the statute plainly calls for other factors and "relevant matters" to be considered. Goins only justification for his discriminatory reading of the law is that other factors "are not as relevant." The law does not dictate that location of the residence trumps all other considerations. In fact, it does the opposite; it enumerates multiple factors that should be considered.

This is not a boundary dispute. It's a judgment call for the election commission, and the law resolves all ambiguous cases by allowing the citizen to choose in which county to establish electoral residency. Ms. Breeding already made that choice and has not attempted to alter it to put herself in the 89th district. The election commission should honor her choice, and, frankly, they have no business obstructing democracy and citizenship in this manner.