IN THE CHANCERY COUNT OF TENNESSEE FOR THE ELEVENTH JUDICIAL DISTRICT AT CHATTANOOGA PETER B MURPHY JESSIE PHILLIPS LETTIE MCINTIRE and OLIN IVEY Petitioners v 1o 06 HAMILTON COUNTY ELECTION COMMISSION MICHAEL S WALDEN JERRY SUMMERS JAMES A ANDERSON TOMMY CRANGLE and RUTH BRALY in their official capacities as Members of the Hamilton County Election Commission and HAMILTON COUNTY ELECTION COMMISSION ADMINISTRATOR of ELECTIONS CHARLOTTE MULLIS MORGAN Respondents VERIFIED PETITION FOR WRIT OF MANDAMUS OR IN THE ALTERNATIVE FOR INJUNCTIVE RELIEF OR IN THE ALTERNATIVE FOR DECLARATORY JUDGMENT COME now Peter B Murphy Jessie Phillips Lettie McIntire and Olin Ivey and file this their Petition for Writ of Mandamus or in the alternative for injunctive relief or in the alternative for declaratory judgment and in support thereof would show unto the Court as follows JURISDICTION 1 This matter is for writ of mandamus or in the alternative for injunctive relief or in the alternative for declaratory judgment Jurisdiction is proper in this Court pursuant to Tennessee Code Annotated Section 2925 101 291 102 and 29 14102 Further venue 2013 MAR 21 PM 12 25 1 FILED S LEE AKERS CM C5
is proper pursuant to Tennessee Code Annotated Section 20 4101 PARTIES 2 Petitioner Peter B Murphy Petitioner Murphy was a candidate for Chattanooga City Council in District 9 The March 5 2013 Chattanooga municipal election results certified by the Hamilton County Election Commission state that Petitioner Murphy received 1024 votes 49 68 Yusuf Hakeem Hakeem received 1030 votes 49 98 1024 and 7 writein votes 34 were cast in the City Council District 9 election held on March 5 2013 Primary election These certified results confirm that no candidate received a majority of votes cast Thus pursuant to the Chattanooga City Charter City Charter Petitioner Murphy has the right to be a candidate in a Chattanooga City Council District 9 runoff election between Petitioner Murphy and Hakeem the two candidates who received the highest number of votes 3 Petitioners Peter B Murphy Jessie L Phillips Lettie McIntire and Olin Ivey are registered voters within District 9 of the City of Chattanooga who voted for Chattanooga City Council District 9 Candidate Peter B Murphy in the March 5 2013 municipal election Pursuant to the City Charter these petitioners have the right to vote in a runoff election for the candidate of their choice as the Certified Results confirm that no candidate received a majority of votes cast in the Primary Election 4 Respondent Hamilton County Election Commission is a duly appointed committee authority by Hamilton County Government and is therefore a political subdivision of Hamilton County Government responsible for conducting elections It may be served with process on its Administrator Charlotte Mullis Morgan or its Chairman Michael S Walden 2
FACTUAL ALLEGATIONS 5 On March 5 2013 the Hamilton County Election Commission HCEC held the City of Chattanooga municipal election for Mayor and City Council members election Primary Election pursuant to the Chattanooga City Charter City Charter 53 6 The Hamilton County Election Commission certified the Primary Election results on March 13 2013 Certified Results as required by Tennessee Code Annotated Sections 28 101 and 105 7 The Certified Results state that Peter B Murphy received 1024 votes 49 68 Yusuf Hakeem Hakeem received1030 votes 49 98 and 7 writein votes 34 were cast in the Chattanooga City Council District 9 election 8 If no candidate for a City Council seat attains a majority in the March elections a runoff election shall be held on the second Tuesday in April emphasis added 9 The Certified Results confirm that no candidate received a majority of votes cast in the Primary Election 10 Upon certifying the results in which no candidate received a majority ofthe votes cast in the Primary Election the election results are final binding and may not be altered for any reason by the Election Commission State ex rel Robinson v Hutcheson 171 SW2d 282 285 Tenn 1943 The county board has no authority to question the certified returns of election officials What has been done in the performance of a legal duty although erroneous is final 11 The duty ofthe HCEC to conduct the City Council District 9 runoff election became mandatory and the right ofvoters in District 9 to cast a ballot for either Peter B Murphy or Hakeem vested and the right of Petitioner Murphy to be a candidate in the City Council 3
District 9 run off election vested upon the certification of results by the HCEC which stated that no candidate received the majority of votes 12 The HCEC has a mandatory ministerial duty to hold the Chattanooga City Council District 9 runoff election if no candidate receives a majority of votes cast 13 Pursuant to the City Charter 53 the runoff election shall be held on the second Tuesday in April between the two candidates in the City Council election who received the highest number of votes in the Primary Election 14 Subsequent to the certification of election results the Hamilton County Election Commission sduties are merely ministerial Shelby County Election Commission v Turner 755 SW2d 774 776 Tenn 1988 the Election Commission has only ministerial duties 15 The HCEC is constitutionally forbidden from making determinations reserved for the judicial branch of government City of Memphis v Shelby County Election Commission 146 SW3d 531 538 Tenn 2004 Ministerial officers failure and refusal to enforce the law as written in the absence of any proper adjudication of unconstitutionality would be intolerable State ex rel Robinson v Hutcheson 171 SW2d 282 285 Tenn 1943 16 Despite its constitutional limitations and its ministerial duties and in clear dereliction of its duties the HCEC has stated that it refuses to hold this runoff election as required 17 Petitioners further rely on the facts set forth in the Affidavits of Peter B Murphy Jessie L Phillips Lettie McIntire and Olin Ivey filed contemporaneously herewith and incorporate same by reference as if fully set forth herein CAUSES OF ACTION 4
I WRIT OF MANDAMUS 18 All ofthe allegations contained in Paragraphs 1 17 of the Petition are incorporated herein as ifset forth in full 19 The HCEC has improperly and in violation of the City Charter refused to hold a runoff election for Chattanooga City Council District 9 as mandated by the City Charter 53 20 Pursuant to the City Charter 53 the HCEC is required to hold the runoff election on the second Tuesday of April 21 Peter B Murphy has a vested right to be a candidate in a Chattanooga City Council District 9 run off election to be held the second Tuesday of April 22 Jessie L Phillips Lettie McIntire and Olin Ivey have a vested right to cast a ballot for the candidate of their choice in a runoff election to be held on the second Tuesday ofapril 23 Because Respondents have a mandatory ministerial and official duty to hold the runoff election and have refused to do so the Writ of Mandamus is the proper remedy to require the Respondents to perform their ministerial duties and hold the election on April 9 2013 as mandated by the City Charter 24 Based upon the allegations contained herein and affidavits filed in support hereof Petitioners are entitled to a Writ of Mandamus as provided in Tennessee Code Annotated Section 2925 101 requiring Respondents to perform their official non discretionary function ofholding a City Council District 9 runoff election on April 9 2013 II INJUNCTIVE RELIEF 25 All ofthe allegations contained in Paragraphs 1 24 of the Petition are incorporated herein 5
as if set forth in full 26 Because Respondents have no authority to refuse to hold the runoff election Petitioners are entitled to a temporary and permanent injunction enjoining all Respondents and their successors from refusing to take any and all necessary actions to hold the run off election and from declaring Hakeem elected or giving Hakeem the certificate of election 27 Injunctive reliefis granted pursuant to Tennessee Rule of Civil Procedure 65 if it is clearly shown that the movant srights are being or will be violated by an adverse party and the movant will suffer immediate and irreparable injury loss or damage pending the final judgment in the action or that the acts or omissions of the adverse party will tend to render such final judgment ineffectual See Tenn R Civ P 65 04 28 Refusal by the HCEC to hold the runoff election will cause irreparable injury loss and damage to Petitioner Peter B Murphy who is entitled to be a candidate in the Chattanooga City Council District 9 runoff election and Petitioners voters within District 9 ofthe City of Chattanooga who desire to vote Petitioner Murphy in the runoff election 29 No substantial harm to others will result from conducting the runoff election in accordance with the City Charter 30 The public has a vested interest in the right to vote in a runoff election if no candidate receives a majority of the votes in the Primary Election The public interest would be served by granting injunctive relief 31 Accordingly Petitioners seek injunctive relieffrom this Court requesting that the HCEC hold the City Council District 9 runoff election April 9 2013 and prohibiting the HCEC from declaring Hakeem elected or providing him a certificate of election III 6
DECLARATORY JUDGMENT 32 All of the allegations contained in Paragraphs 1 31 of the Petition are incorporated herein as if set forth in full 33 Pursuant to City Charter Section 53 the duty of the HCEC to conduct the runoff election is mandatory 34 Therefore Petitioners seek declaratory judgment from this Court declaring that the Chattanooga City Council District 9 runoff election is to be held on April 9 2013 WHEREFORE premises considered the Petitioners pray as follows 1 That good and adequate service be had on the Hamilton County Election Commission 2 That this Court issue a Writ of Mandamus as requested in this Petition supported by affidavits or in the alternative 3 That an expedited hearing for Writ ofmandamus for Injunctive Relief or in the alternative for declaratory judgment be had on this matter 4 That this Court issues orders granting the relief sought herein 5 Such other relief to which the Petitioners may show itself to be entitled Respectfully submitted Neal L Thompson Attorney for the Petitioners Law Offices of Neal L Thompson 2158 Northgate Park Lane Suite 4 Chattanooga TN 37415 423 265 7025 BPR 05938 YVEARE SURETY FOR COSTS INTHIS CAU 041 7
Of Counsel kg A X w j2 Ono 0e Elizabeth Howard signed by express permission Neal L Thompson For the Firm Sandler Reiff Young Lamb PC 1025 Vermont Avenue Suite 300 Washington DC 20005 202 4791111 Fax 202 4791115 t CERTIFICATE OF SERVICE I Neal Thompson hereby certify that a true and exact copy ofthe foregoing Petition for Writ of Mandamus or in the alternative for Injunctive Relief or in the alternative for Declaratory Judgment has been served upon the Respondents by US Mail postage prepaid addressed to Michael S Walden Chair Hamilton County Election Commission 700 River Terminal Road Chattanooga TN 37406 Charlotte Mullis Morgan Administrator of Elections Hamilton County Election Commission 700 River Terminal Road Chattanooga TN 37406 Chris Clem Esq Samples Jennings Ray 130 Jordan Drive Chattanooga Tennessee 37421 And by Hand Delivery Chris Clem Esq Samples Jennings Ray 130 Jordan Drive Chattanooga Tennessee 37421 Clem PLLC Clem PLLC On this the Z day of March 2013 NEAL THOMPSON Attorney for the Petitioners 8