Tuesday, October 30, 2007

Asking the Chancellor to ignore the law

We're now at the point when covering the crisis in Knox County Government where it relates to filling the seats of the twelve vacated county offices (including eight Commission seats) when I often feel like I am repeating myself on obvious questions of constitutional law. The Tennessee Constitution is quite clear that vacancies in county offices which occur in the midst of a term shall be filled by action of the county legislative body.

It cannot be denied that under ideal circumstances that a special election would be the optimum way to restore the public trust in both the Knox County Commission and in the governing authority of the County itself. The long-term problem is that the Constitution of Tennessee clearly does not provide the mechanism for such a poll prior to November of 2008 (with a February Primary).

Assistant Attorney General Janet Kleinfelter, who represents the state election coordinator argued that Fansler has no right to order a special election.

"There are a whole host of statutes you would have to ignore," Kleinfelter told Fansler.

"We would just respectfully submit there is no authority granting a special election."

The Assistant Attorney General is correct, of course. In a show of unity that of late has been extremely rare, both the News-Sentinel and the Knox County Commission are asking the Chancellor to call a special election. There is no constitutional authority for such a move, yet we find statements such as this from attorney Herb Moncier:

There's lots of things that can be done if we get rid of the can't-do attitude."

This "can't do attitude" Moncier speaks of exists not because the State is trying to suppress democracy, but because the law does not allow for a special election without an Act of the General Assembly. These words by Knox County Chief Deputy Law Director Mary Ann Stackhouse:

"We believe the court standing on the Tennessee Constitution can order there be an election," she said. "The commission is hopeful there could be an election."

Fansler responded, "Everyone is hopeful, figuring out how to get there is the problem."

He then asked Stackhouse if she agreed that the charter orders commission to fill vacancies.

"The charter does say as state law says any vacancy shall be filled by commission," Stackhouse answered.

"I think what we have here is strong sentiment that we try something different."

What these folks seem to be asking, quite frankly, is that the Constitution of the State of Tennessee be completely ignored by the Chancery Court because it would be both popular and politically expedient in the short term to do so. This is an extremely dangerous attitude toward constitutional law, and smacks of the same kind of mentality that seems to exist within the federal government in the wake of 9/11-that the Constitution can and should be ignored when short-term expediency and popular sentiment would seem to call for it. If the State Constitution speaks so clearly on a matter such as how vacancies in county offices are to be filled and a Court ignores this provision in the name of expediency, then the reality is that the Tennessee Constitution is not worth the paper it is printed on.

Reform is sorely needed in the form of a constitutional amendment that would allow for special elections in situations such as has occurred in Knox County. Until such an amendment is passed however, the Constitution cannot be ignored as irrelevant-for if one part of the Constitution can be discarded, no part of it (including the provisions safeguarding civil liberties) is safe.



At Tuesday, October 30, 2007 8:21:00 PM, Blogger Bill said...

I wonder if The Commission called for the special election to avoid the impropriety look, again. Then again, may be not.


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