New twist in District 26 lawsuit

New twist in District 26 lawsuit

July 21st, 2018 by Judy Walton in Breaking News

Jerry Summers

Photo by Staff File Photo /Times Free Press.

The soap opera that is the House District 26 election ended its week in another cliffhanger Friday.

Will the lawsuit challenging the Republican nominee land in the lap of a chancellor who depended on that very nominee to handle her election campaign in 2014, or will she recuse herself and shrug it off to yet a third judge?

Interested watchers could find out at a hearing scheduled for Aug. 6 in Hamilton County Chancery Court. Election Day in the county general and state and national primary elections is Aug. 2.

The Tennessee Democratic Party's lawsuit against the Hamilton County Election Commission was dismissed Tuesday by a Davidson County chancellor and refiled here Wednesday. State Democrats are trying to keep Republican nominee Robin Smith's name off the ballot, claiming the local election commission illegally reopened qualifying after incumbent Gerald McCormick dropped out.

By the luck of the draw, the case was assigned to Chancellor Pam Fleenor McNutt. Campaign finance records show McNutt paid Smith's firm, River's Edge Alliance, around $41,000 for professional services during the 2014 campaign.

That potentially sets up an enormous conflict of interest. But Democratic election commissioner Jerry Summers, although he's steamed at how majority Republicans got Smith on the ballot, doesn't see any sinister machinations in the chancellor appointment.

Cases are assigned by rotation to McNutt and fellow chancellor Jeffrey Atherton. This one may have landed on McNutt's desk but Summers doesn't think it will stay there.

"Pam Fleenor is a good chancellor and a good person," Summers said Friday. "I'm certain that on her own she will do the proper thing and if she thinks it's appropriate she'll recuse herself."

Tennessee judges are bound by ethical rules set down by the state Supreme Court.

One rule states that a judge "shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety."

Another states a judge "shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned."

McNutt's administrative assistant said by telephone Friday the chancellor can't comment on any case before her.

The Tennessee Democratic Party and its attorneys also had no comment Friday.

Summers isn't objecting to the how the chancellor appointment works, but it's about the only part of the case he's at ease about. That starts with the July 2 election commission meeting where three commissioners voted to certify Smith as a candidate.

Summers said he found out the night of July 1 that Chairman Mike Walden wouldn't be present for the scheduled 8 a.m. meeting. As commission secretary, he said, he expected to preside. He said he instructed Elections Administrator Kerry Steelman to call the other commissioners and move the meeting time to 8:45 so Summers could go to a medical appointment.

By the time he arrived at 8:25, he said, the other three commissioners — Ruth Braly, Chris Clem and Secondra Meadows — had convened the meeting, voted to put Smith on the ballot and adjourned after less than 10 minutes. Clem, an attorney, said at the time that there had been no objections raised to reopening qualifying and that he had to be in court by 9 a.m.

Summers said Clem could easily have gotten a few minutes' grace for court by calling the judge.

"If you have a quorum you can have a meeting but that's not the point. The point is the scheduled meeting was circumvented," said Summers, who served for many years as the election commission attorney before being named to the commission.

He also questioned why the three commissioners voted to spend up to $50,000 on Nashville attorney Tim Warnock to represent the commission, since the county attorney's office already does so.

Commission Chairman Mike Walden said previously a Nashville attorney is needed because the lawsuit originally was filed in Davidson County Chancery Court.

"Somebody's going to have to pay that," Summers said.

Contact staff writer Judy Walton at or 423-757-6416.