At the Tennessee Court of Appeals last week, lawyers for the Metro government and the Davidson County Election Commission argued the merits of whether 4 Good Government’s anti-property tax proposal should be placed on the ballot. The DCEC brought the appeal after having lost in Chancery Court last year. An appeals court ruling may not be available for months.
But no matter the outcome, the bill for the litigation is coming due and it will be a big one for Metro taxpayers.
As of Dec. 31, attorneys hired by the DCEC to defend the ballot measure have billed $706,487.87 to the commission, a figure that will climb higher, especially if the litigation goes all the way to the state Supreme Court.
Metro’s legal department would represent the commission under normal circumstances. But because Chair Jim Delanis and the GOP members declared the DCEC’s interest at odds with Metro’s, outside counsel was retained. Vanderbilt professor James Blumstein is the lead attorney and is supported by Austin McMullen and attorneys from Bradley Arant Boult Cummings. Their fees are assessed at a range of up to $800 per hour, according to elections administrator Jeff Roberts.
On a 3-2 party line vote last summer, Republican commissioners took the unusual step of defending the ballot proposition in court instead of seeking a declaratory judgment on the merits of the anti-tax measure first. As a result, the DCEC is responsible for defending the proposition, not 4 Good Government, which wrote the measure and gathered signatures to place it on the ballot.
“It was obvious from those meetings that the goals were partisan,” said at-large Metro Councilmember Bob Mendes, a critic of the commission’s actions. “Chair [Jim] Delanis was trying to be a participant in setting the tax rate instead of impartially deciding whether to have an election. But even taking what he said at face value, he said he wanted to clarify confusing referendum law. There were better ways to do that cooperatively without wasting hundreds of thousands of dollars of taxpayer money losing a lawsuit.”
When the commission sought a declaratory judgment first in 4 Good Government’s previous attempt to get on the ballot, the bill was significantly less: $214,927. This time, the commission sought the opinion of a higher court.
There is little recourse for Metro but to pay the bill. Even though the commission is a state board, the county is responsible for its cost. The DCEC might need to ask for a supplemental appropriation of funds from the Metro Council, though Jeff Roberts says they hope to be able to avoid doing so, as the costs have come during two different fiscal years.
“The anticipation is that they will need some kind of supplemental funding,” said Councilmember Tanaka Vercher, who chairs the elections committee. “The accountability for the election commission extends beyond this. There needs to be a comprehensive review as it extends to their expenditures.”