Tue
Jun 19 2012
04:48 pm
By: Sandra Clark

The state Supreme Court has just declined to hear Shelly Breeding's appeal. She can't be on the Knox County ballot. -- s.

rikki's picture

for the Supreme Court to poop on

Here are a few quotes from the Constitution of the State of Tennessee:

Section 5a. Each district shall be represented by a qualified voter of that district. (in reference to the House)
Section 6a. Each district shall be represented by a qualified voter of that district. (in reference to the Senate)

Section 9. No person shall be a representative unless he shall be a citizen of the United States, of the age of twenty-one years, and shall have been a citizen of this state for three years, and a resident in the county he represents one year, immediately preceding the election.
Section 10. No person shall be a senator unless he shall be a citizen of the United States, of the age of thirty years, and shall have resided three years in this state, and one year in the county or district, immediately preceding the election.

Maybe some genius attorney or historian can explain whether this difference in language is significant or merely an artifact. Meanwhile, it would appear that House seats 3,5,6,8,9,10,11,21,22,23,25,31,32,35,36,38 and 41 (counting only Eastern Division districts) must be vacated and kept vacant until the Constitution is fixed to conform with this ruling, as it is impossible for any person to reside in all of the counties those representatives represent.

R. Neal's picture

Heh. Good catch! Maybe while

Heh. Good catch! Maybe while we're at it we can fix the part about no income tax (see Hall Tax) and the part about state judges being elected (see Tennessee Plan).

And at the same time we could eliminate all these stupid "fee offices" and elected sheriffs.

fischbobber's picture

Income tax

When you get right down to it, our constitution only prohibits taxing direct work, not profits one makes from the labors of others. In other words, while the crops of the farmer and the labors of a factory worker are protected, the profits in excess of those labors is not. In other words, if a widget is determined to be worth $1.00 and the materials and equipment cost is $.50 and the labor cost is $.30 then the last $.20 is subject to tax because it is not the direct product of the investors labor. It's not treated that way and the workers share has been decreasing through the years, but that's the way the constitution reads and if it went through the system could well be the way it was ruled, but no one with the money or power would ever go through our state court system to enforce our constitution because workers, not business owners, would be the beneficiaries.

Next you'll probably try to get me started on the constitutionality of interest rates in excess of 10%.

(link...)

Everyone should print this off and read it. It's a thing that will make you go "Whoa dude! This is deep and not what I thought it would be."

50 cents wasted's picture

Oh well, it was interesting while it lasted

However, I suspect that the Breeding case, as it has come to be known, will now be the benchmark for determining if you live in the district/the county or not in candidate considerations across the State.

The dispute ends with a quiet and simple online entry that the Tennessee Supreme Court won't be hearing the case. End of the line boys.

Where is Jon Kerry Blackwood when you need him?

rikki's picture

Does it ever end?

I doubt Knox Co is the only insane county capable of parlaying bad court decisions into years of dysfunction. It's much more likely this is the beginning of the line. Any number of counties now have a gimmick at their disposal for refusing to put State House candidates from neighboring counties on their ballot, and not just candidates who happen to own property bisected by a county line.

Once that happens, the courts will have to get involved again, and they'll have to rule that the Constitution really means "district," not "county." At that point, Breeding will have grounds to file a civil rights suit against KCEC (if she does not already), and this will cost Knox and perhaps the state a pretty penny.

This was a petty, unprincipled act by KCEC and Mark Goins. Whatever skill Stokes and Cope may have in other areas of law, this should put an end to the notion that governmental law is their strong suit.

rikki's picture

free kisses

So here's what I wrote over the weekend, hoping it would help. Little did I realize that the ass-kicking Supreme Court of Chief Justice William Barker that finally straightened out home-rule Knox County has so quickly degenerated into a worthless clump of cowards. I'd like to invite Justices Lee, Wade, Clark, Koch and Holder to meet me on Fifth Ave under the interstate tomorrow at 2am to get in line behind five random prostitutes, drug dealers or homeless people to kiss my ass. The citizens will of course be paid the prevailing rate, but the Justices can smooch pro bono.

CBT's picture

"rikki: Whatever skill Stokes

"rikki: Whatever skill Stokes and Cope may have in other areas of law, this should put an end to the notion that governmental law is their strong suit."

The court(s) based the decisions predominately on the maps, notably the KGIS map. Breeding would have had to spend tens of thousands of dollars and get such a map prepared in time for the court hearings to possibly have a map which showed her house in Knox County.

The decision is what it is, but the result is not the fault of Stokes or Cope. If the court(s) took a broader view and looked at other arguments and factors, Stokes and Cope would be hailed as brilliant. Didn't happen. I would also point out that Breeding, a lawyer herself, picked them. If she's as smart as many say, you might want to defer to her opinion on her lawyers abilities.

rikki's picture

I didn't just drop an idle

I didn't just drop an idle opinion. I've offered substantial analysis of the rulings here and in my MP column. Your response completely ignores that substance.

That the court made its decision based on maps is the bulk of the problem. A court should base its rulings on the law. The law does not support treating this issue as a mere boundary dispute. That was an invented standard created by Chancellor Brown, literally because he found it "easier" to reach his conclusion by pretending it is simply a cut-and-dried matter of lines on a map.

To his credit, Stokes was quite critical of Brown on that point, but he did not offer a more compelling framework for a decision, so the appellate court also based its decision on maps rather than the law. The absence of a more compelling, positive argument from Stokes is what leads me to think this case was poorly argued, particularly since I've come up with a better argument myself.

Regarding the boundary dispute, which is not legally dispositive except in the mind of a lazy chancellor, it's obviously a challenge to figure out where straight lines cross natural terrain, but some boundaries can be easy to find, for example if a natural feature like a creek or ridge defines the edge of a parcel. I can't be certain of this, but it looks to me like the Knox/Anderson line in that area follows the ridge south of Beaver Creek. If that ridge is in fact the legal boundary, then determining where Breeding's house lies relative to the county line is a simple matter of whether the house is on a south-facing slope or a north-facing slope. If that ridge is not the legal boundary or if the terrain was substantially altered during development, then an expensive survey would be necessary.

R. Neal's picture

Isn't one problem with your

Isn't one problem with your theory in this particular case the fact that District 89 lies entirely in Knox Co.?

rikki's picture

That would be a problem if it

That would be a problem if it were a fact, but it's not, not in any legally binding sense. A good attorney would challenge that supposed fact. What is actually true is that District 89 is composed entirely of Knox Co voters.

This is where the county/district distinction becomes important, because a county line is a formal and defined thing that a surveyor can accurately locate. District boundaries are informal and inexact. Districts are defined by listing what (or really who) is included inside them, not by defining a precise edge. You simply can not survey district boundaries like you can real estate parcels, state lines, etc. District 89 is simply a collection of several voting precincts, including the Karns precinct where Breeding is a qualified voter. Voting precincts are also defined informally by describing who is inside or outside the boundary, not by precisely affixing a physical line.

So Stokes' first and fundamental mistake was permitting that "entirely in Knox Co." ruse to go unchallenged. It permitted a discrete test where the law is actually fuzzy.

Somebody's picture

Here's the legal description

Here's the legal description of the various house districts. That law uses 2010 US Census data to define the districts. Knox County's 2010 Census map index is here. The Census map including Ms. Breeding's street is here.

I'm not sure I can make any sense of it, but there it is. By law, the official maps for the house districts are the 2010 US Census maps, not KGIS or whatever else.

rikki's picture

Thanks, Somebody. Interesting

Thanks, Somebody. Interesting stuff. The relevant map on the Anderson Co side is here. Is it possible to determine whether Breeding was counted in census tract 213.02 block 3031 or tract 59.08 block 1001?

This could, of course, prove that Breeding is included in the legal description of District 89, thus undercutting the case against her, the failure of her attorneys to discover the legal description of District 89 notwithstanding, or it could prove that Breeding's residency falls under TCA 2-2-122, where every case of ambiguity is resolved by allowing the citizen to choose his or her political home. There is still no outcome that permits the state to dictate to a citizen whose property is bisected by a county line which county he or she must participate in politically, judicial slovenliness and/or fraud notwithstanding.

Somebody's picture

I don't have time to go back

I don't have time to go back through the various briefs for the court hearings, but in all that, did anyone actually make reference to the law defining the district, or to the Census maps as the tool for defining the district? Perhaps it could be argued that the census map makes reference to the County line as a boundary, but still, it seems strange that no one would bother to reference and address the things that actually define the problem in the first place.

R. Neal's picture

I read through them, don't

I read through them, don't recall seeing anything about Census maps, etc. Interesting.

R. Neal's picture

Resurrected the OCR'd briefs

Resurrected the OCR'd briefs from the recycle bin, none mention Census.

Somebody's picture

This is probably a moot point

This is probably a moot point for the current circumstances on at least two and a half levels: 1- If Democrats hope to field a candidate, there's no more time to find another avenue to adjudicate Breeding's case; 1.5- There's probably no other avenue to pursue this particular case with a 'wait-a-minute,-what-about-this?' argument, anyway; 2-The census map references the county line, so the already established uncertainties about where exactly the county line lies would just come right back into play.

Still, I find it baffling that all the lawyering on either side would fail to make reference to the law that defines the new district, and subsequently the census maps that are exclusively referenced by that law. Perhaps if McKay is reading this he could offer explanation why that information would have no bearing and need not be referenced in such a case.

R. Neal's picture

Also, because there is now a

Also, because there is now a dispute re. the county boundary, is it the Census bureau, state legislature, or someone else other than the candidate's responsibility to verify the district boundaries?

rikki's picture

Obviously the Tennessee

Obviously the Tennessee courts have been exhausted. The only hope with regard to Breeding would be if some sort of definitive proof that her house is in Knox Co could be presented to the election commission, thus compelling them to allow her on the ballot. Proof that she was counted in a Knox Co census tract might also be adequate to get the commission to revisit the matter. I don't know whether or how to dig that deep into the census data.

rikki's picture

It does seem strange that the

It does seem strange that the formal definition of District 89 never came into consideration, and since Breeding's voting precinct is included in full, the operative part of the definition does not even get as detailed as census blocks. It's just voting district 63N, where Breeding has been registered and active since 2008.

I believe there is a legal principle along the lines of "you can't unring a bell." If I were an attorney, or if Breeding's attorneys had bothered to mention it, I could probably provide the nifty Latin phrase for this principle. In this case, it would indicate that even if the election commission had erred in allowing Breeding to register in Knox Co, because they allowed it and because she has been active as a Knox Co voter, she IS a Knox Co voter. I don't recall seeing that argument in the filings either, but it seems like it should have been included.

rikki's picture

wrong, sorry

The phrase I was searching for is "estoppel and waiver," and Stokes did raise this issue in the chancery court, so that part of my criticism of his argument is incorrect, and I apologize.

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