IN THE CHANCERY COURT FOR KNOX COUNTY, TENNESSEE

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

MEMORANDUM OF FACTS AND LAW IN SUPPORT OF
KNOX COUNTY CHANCERY COURT’S JURISDICTION

Respondent, Shelley Breeding (“Respondent”), by and through her legal counsel, hereby files her Memorandum of Facts and Law in Support of the Jurisdiction of Knox County Chancery Court to decide the Declaratory Judgment filed by the Knox County Election Commission (“Petitioner”). In support of such, Respondent states as follows:

At the hearing of this matter on May 16, 2012 before this Honorable Court, the Court requested the parties to provide law and argument regarding the Court’s jurisdiction over this matter and specifically, in relation to the case of Littlefield v. Hamilton County Election Commission, 2011 WL 5221744 (Nov. 3, 2011) (copy attached). Respondent avers that this case is easily distinguishable from Littlefield¸ and that jurisdiction of this matter should be proper before the Court.
In Littlefield, the Court of Appeals examined the Hamilton County Chancery Court’s jurisdiction of a declaratory judgment matter filed by a candidate approximately a week before the local election commission was scheduled to have a meeting. Id. at *2. In Littlefield, the candidate did not allow the election commission to first vote and decide how to handle the matter at issue. In this matter, Respondent did exactly the opposite. The Petitioner met at a public meeting on April 19, 2012 and voted to handle Respondent’s residency issue by filing a declaratory judgment action and allowing this Honorable Court to decide Respondent’s residency.
It has long been recognized that the duties of election commissions are entirely ministerial. See State ex rel. Caldwell v. McQueen, 159 S.W.2d 436 (Tenn. 1942). The Tennessee Supreme Court in City of Memphis v. Shelby County Election Comm’n, 146 S.W.3d 531 (Tenn. 2004) discussed at length the very limited duties, authority and power of the State Coordinator of Elections and the county election commission. The Court in City of Memphis found
The City correctly points out that the Coordinator and the Commission are ministerial officers. Shelby County Election Comm'n v. Turner, 755 S.W.2d 774, 776 (Tenn.1988) (“[T]he Election Commission has only ministerial duties.”); Peeler v. State ex rel. Beasley, 190 Tenn. 615, 231 S.W.2d 321, 323 (1950) (holding that the duties of county election commissions are ministerial); Curtis v. State, 163 Tenn. 220, 43 S.W.2d 391 (1931); Taylor v. Carr, 125 Tenn. 235, 141 S.W. 745, 750 (1911) (holding that “the duties of commissioners of election are only ministerial”); see State ex rel. Tidwell v. Morrison, 152 Tenn. 59, 274 S.W. 551, 552 (1924). The trial court in this case accurately characterized the Commission’s duties as ministerial. The Commission and the Coordinator respectively perform important functions vital to the maintenance and advancement of our political system. Nonetheless, as ministerial officers, the Commission and the Coordinator have limited discretion.

Black's Law Dictionary defines a “ministerial officer” as “[o]ne who performs specified legal duties when the appropriate conditions have been met, but who does not exercise personal judgment or discretion in performing those duties.” Black's Law Dictionary 1113 (7th ed.1999). A “strictly ministerial duty” is defined as: “A duty that is absolute and imperative, requiring neither the exercise of official discretion nor judgment.” Id. at 522. These definitions illustrate how, as ministerial officers performing ministerial acts, the Commission and the Coordinator must implement the election laws, not determine the substantive constitutionality of ballot measures.

City of Memphis, 146 S.W.3d at 535 (emphasis added).

In City of Memphis, the Shelby County Election Commission voted to exclude a tax ordinance referendum on the ballot because the Shelby County Election Commission believed such to be unconstitutional. Id. at 533. The City of Memphis filed suit in Shelby County Chancery Court for a declaratory judgment and requested a writ of mandamus. The Shelby County Chancery Court ruled in favor of the election commission and the City of Memphis appealed directly to the Tennessee Supreme Court. Id. The Tennessee Supreme Court overruled the trial court and outlined that it is the duties of the courts to consider and determine constitutional issues, not the local election commission. Id. at 536. In discussing the separation of powers, the Court found that the election commissions are authorized by statute, but that such statutes
do not require or even permit the Commission to refuse to include a referendum question on the ballot because the Commission believes the question to be substantively unconstitutional. See Tenn.Code Ann. §§ 2–12–101 through 2–12–216 (delineating the duties of the Commission). The Commission contends that it has the power and duty to make an “initial determination” whether the law authorizes the acts it is required to perform. This contention is true with respect to the Commission's performance of its ministerial duties. However, it is inaccurate to say that the Commission has the power and duty to perform an initial or cursory review of the substantive constitutionality of measures to be placed on the ballot for referendum. Determining the substantive constitutionality of such measures is a function reserved for the judicial branch of government.

Id. at 535-36 (emphasis added).
Likewise, in Jordan v. Knox County, 213 S.W.3d 751 (2006), the Tennessee Supreme Court held,
… the Knox County Election Commission, as a counter- and third-party Plaintiff, does, in fact, have standing to seek a declaratory judgment from the trial court as to the eligibility of the individuals who had submitted qualifying petitions for re-election….A resolution of the issues of whether the parties were eligible for re-election or whether the offices validly exist is necessary to enable the election commission to carry out its duties properly. The election commission has not challenged the validity of the charter but has sought to determine which candidates qualified for the ballot and which offices were to be filled. See City of Memphis v. Shelby County Election Comm'n, 146 S.W.3d 531, 539 n. 7 (Tenn.2004) (stating that the duties of the election commission are ministerial in nature and the body must call on the courts to decide the related substantive issue).

Jordan, 213 S.W.3d at 765.

In the instant matter, it would be improper for the Petitioner to exercise judgment or discretion in considering the constitutional requirement of residency and weighing evidence to determine if Respondent met such constitutional requirement to run for office. To determine such would require the Petitioner to exercise judgment and discretion, for which the Petitioner and State Coordinator of Elections are not authorized to exert. In fact, the State Coordinator of Elections’ “opinion” on Respondent’s residency is outside the scope of his duties as a ministerial officer.
Further, Respondent’s candidacy and right to participate in the election process should not be held hostage to an Election Commission’s ability or inability to properly submit a motion and undertake a resolution. Essentially, the question of jurisdiction might not be before the Court had the Knox County Election Commission clearly made a choice regarding a determination of Respondent’s residency. While Respondent believes such significant decisions with constitutional implications are outside the scope of a politically appointed body with only the rights of a ministerial office, the avenue of relief must be the judicial branch. If Petitioner chose to take no action and hold no meeting, then under the Litchfield ruling, the matter might only ripen on the day of election – far too late for any meaningful equitable relief.
In conclusion, this Court is the appropriate authority to weigh the evidence, examine and interpret the law and ultimately decide whether Respondent meets the constitutional requirement of residency for State House of Representatives. The parties agree that the Court has jurisdiction.
Wherefore, the Respondent respectfully requests this Honorable Court exercise jurisdiction of this matter, declare Respondent’s residency to be Knox County and declare Respondent eligible to run for State House of Representatives in District 89. The Respondent seeks such other and further relief as this Court deems warranted.
Respectfully submitted,

______________________________________
Billy J. Stokes (BPR #6839)
Jon M. Cope (BPR #20031)
STOKES, WILLIAMS, SHARP & DAVIES
920 Volunteer Landing Lane, Suite 100
Knoxville, Tennessee 37915
Attorneys for Respondent

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing has been furnished to all counsel of record in this cause by placing a copy of same in the U. S. Mail, postage prepaid, addressed as follows:
Joseph G. Jarret, Esq.
Knox County Law Director
400 Main Avenue
Suite 612
Knoxville, TN 37902

This day of , 2012.

Jon M. Cope