Judge pulls Chattanooga mayoral recall from ballot - WRCBtv.com | Chattanooga News, Weather & Sports

Judge pulls Chattanooga mayoral recall from ballot

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CHATTANOOGA (WRCB) – The legal battle over the process to recall Chattanooga Mayor Ron Littlefield returned to court Friday. And after a morning of testimony, Judge Jeff Hollingsworth ruled that the recall election to remove Littlefield from office was not held up by state law and said it would not be on the August ballot.

This is the second go-round for the group organized against the mayor. A previous ruling in Littlefield's favor was overturned by a federal appeals court last year.

At issue is the total number of signatures needed on a petition to recall the mayor.

The city charter states that nearly 9,000 signatures are required, but state law – Littlefield points out – requires nearly 15,000 signatures.

The Hamilton County Election Commission certified the petitions, citing the city charter.

Today's hearing involves three parties: Mayor Littlefield's camp, arguing the state law supersedes the city's charter; The recall organizers, arguing they followed the instructions provided by city and county officials; the final group is the Hamilton County Election Commission, arguing that based on the county and city laws, the petitions to recall the mayor are valid.

[Read more about the process to recall Mayor Littlefield]

Recallers challenge Judge's bias

Recall organizer Jim Folkner began the hearing by asking Judge Jeff Hollingsworth to recuse himself from the case, noting that Hollingsworth's campaign donors have ties to Littlefield and the law firm representing him.

"This leads us to believe there's a possibility of bias. We would like this thing settled. We don't have a lot of money to spend," says Folkner. "We object to the association, not that it's a bad association, but it's there. The Court should not have an appearance of taint."

Judge Hollingsworth denied the motion to and refused to recuse himself, stating he last ran five years ago, and sees no conflict of interests.

Common Ground

All parties agree that the Election Commissioner certified petitions with 9,718 signatures. They also agree that 5,439 signatures did not have addresses. They further agree that 1,216 signatures were on petitions where the language was altered and not approved by the Election Commission.

Election Commission's Argument

The Election Commission mounts their argument by first calling Elections Administrator Charlotte Mullis-Morgan.

Mullis-Morgan testifies that so far, the recall process has cost taxpayers $21,000 in overtime.

Mullis-Morgan: Folkner asked whether petitions needed dates. I said I'm not familiar with that.

Littlefield attorney Hal North: Did you review law?

Mullis Morgan: No. We did not count the dates first, and then we had to go back and review those. We counted each signature that was countable, some 15,500 signatures. I remember talking to you [Folkner] about the dates.

Election Commission Chris Clem calls recall organizer Jim Folkner.

Clem: Did you submit any signatures prior to 75 days to gather?

Folkner: No. No other copies of petition, passed out prior to approval. Not likely anybody could have started collecting names prior to Election Commission approval of language.

Folkner under cross examination by Littlefield attorney:  I can't be responsible for everything turned in. Aware other forms were circulating and turned in. Other petitions may have had extraneous language on them. I'm not responsible for that.

Mayor's team to Folkner: You can't say with certainty, what date anybody signed those petitions, even if dated? You recall saying that?

Folkner: No

Folkner: I can only conclude it was done within the 75 day period during which we could gather. Because I had the petitions turned in.

Littlefield is taking in Folkner's testimony with somewhat thoughtful expression, rubbing chin throughout.

Mayor's team has Folkner reviewing previous hearing's transcript

Folkner: In recruiting volunteers, I had them sign a piece of paper. Some thought they were signing petition. But I did not turn that in. Charlotte told me we didn't need dates. I relied on that. I was told to do what she said, which is what we did. The Election Commission told me to rely on her.

The Mayor's Challenge

Mayor's Attorney Tom Greenholtz: Petition does NOT ask directly; "shall Mayor Littlefield be recalled." There is no debate at all number of signatures flunks state standards. Petition falls woefully short by at least 5,000 signatures, of state standards. 14,854 valid dated signatures were needed. If we're going to recall, we're going to do it according to law, not passion.

Greenholtz questions Clem's contention that the recall law invalid.

Clem contends recall law doesn't apply to counties or cities the size of Chattanooga and Hamilton County. Greenholtz argues the General Assembly's intent was law applies to all.

Court recesses for 15 minutes.

A Debate of Constitutionality

Election Commission Attorney Chris Clem closing arguments: The Election Commission is trying to enforce city charter AND state election law regarding the recall process, which are in conflict. With Charter restated in its entirety to go with City Charter's lower numbers, and state law provision allowing charters to modify recall provisions. That also drove decision to accept or review undated signatures.

Evidence shows Election Commission does have standards to challenge. Every city/county in this state needs to have same recall provisions. There is nothing preventing this court from looking at entire statute in reviewing facts of this case violates equal protection clause.

The entire statute needs to be declared unconstitutional. The Charter should be enforced, complied with via dates and signatures.

Hollingsworth: if statute IS constitutional, how does state get around the 3 prong requirement even if Charter allows date/signature modifications?

Clem: Court should give us clear question regarding two or three step requirements. The petitioners shouldn't be at fault for Commission to rely on Charter.

Attorney General's Rep: I'm not sure what the Election Commission followed. They followed state law on dates, Charter on dates/signatures.

Hollingsworth: City Charter requirements are 2-step, State is 3-step. If recall approved, then separate election held to replace Littlefield.

Attorney General's Rep: no intellectual somersaults (Clem's phrase) to find Statute constitutional. Guarantees right to sign petition, not vote in election.

City of Chattooga Rep: Cities cannot, under Home Rule, vote to supersede state law.

Folkner: How can you say City Charter not properly enacted? We can rely only on what we know and are told by the Election Commission. We joined in this appeal, because Election Commission asked us to come in on it. Who are we supposed to rely on? Do we go to the state every time? Justice delayed is justice denied. We believe we relied correctly. We followed the spirit and intent of the law. Does recall law have provisions unconstitutional/unclear? No question.

Greenholtz: Recall provision is lawful because the power rests with the people.

Hollingsworth: We know what happened, we know who did what. So this is all about questions of the law. Will announce decision TODAY at 1:00 p.m.

Judge's Ruling:

Judge Jeff Hollingsworth: Facts are not in dispute. Basic question is whether state statute is constitutional. Election commission WOULD suffer injury if state statute applies. Commission has standing to contest constitutionality. Precedent holds courts should not decide constitutionality unless immediate injury needs to be rectified. If Davidson County is exempt, does that make it unfair? If we remove that unconstitutional provision, is law constitutional? Would law have passed anyway, without it? Yes. So, unconstitutional provision CAN be taken out. If it functions, and would have passed, you don't need to decide constitutional issue. I'm not.

Recalls Appeal of first ruling as 'premature.' But in my review, I think the state statute does apply, even if city changed rules.

Election will not be on the ballot. Written decision to follow. This will be a final judgment with regards to recall efforts appeals

Channel 3's Gordon Boyd was in court for Friday's hearing. Follow his updates on Twitter: @gordonboyd3.


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