Thursday, August 16, 2012

Judge Throws Out Crim Lawsuit As Hearing Rides Off the Rails

Posted By on Thu, Aug 16, 2012 at 11:46 AM

After a hearing this morning chaotic enough for courtroom farce, Judge Kevin Sharp denied former Democratic U.S. Senate candidate Larry Crim's legal challenge to the Aug. 2 primary, in which Crim was defeated by disavowed rival Mark Clayton. Clayton is the self-professed Democrat whose platform echoes many of the far right's planks on abortion and same-sex marriage, along with the threat of a supposed "NAFTA superhighway" stretching from Canada to Mexico.

In a lawsuit filed yesterday, Crim accused the Tennessee Democratic Party and its chairman Chip Forrester of failing to get Clayton off the ballot, charging that Clayton is not a legitimate Democratic candidate.

The suit also named the state's Division of Elections. But when Crim and his lawyer, Michael Rowan, showed up at this morning's emergency hearing, they were evidently unprepared.

When the proceeding began, Sharp asked Rowan — who, curiously, appeared with Clayton at a recent press conference — to read the motion he had filed with the court, which Sharp said was illegible. Having not brought his own copy, Rowan was forced to retrieve the document from the judge.

After hearing the motion, Sharp pointed out that Rowan had failed to follow several local rules when filing the complaint. Among them was that while Rowan had apparently styled his motion like a legal memo, he had not filed an actual memorandum outlining the facts of the case and arguments pertaining to them.

Nevertheless, Sharp gave Rowan the chance to argue his case orally. He asked Rowan why Crim had not raised such a complaint in the months leading up to the election, given that "everyone knew in April that Mr. Clayton had qualified."

Rowan argued that Crim had "detrimentally relied" on the party to vet the candidates and questioned whether it was Crim's "job to go out and check all the candidates."

Rowan was continually reprimanded by the relatively restrained Sharp for interrupting him in the middle of his questions. That was not the most unorthodox procedure of the morning. At one point, Clayton — who had been granted a motion to intervene, making him a party in the case — stood and declared an objection from the gallery, drawing a swift rebuke from Sharp and widened eyes from the rest of the courtroom.

Closing his argument, Rowan said there were two victims here: Crim, who ultimately finished fourth in the primary, and the voters, who he argued had been defrauded.

Representing the Division of Elections, Janet Kleinfelter repeated the list of procedural issues with the suit. Kleinfelter said — while admitting that she couldn't believe she was saying it — the state's preference was for the court to resolve the matter in spite of those problems, so that the proceedings would not interfere with the upcoming elections.

Furthermore, she pointed out that the state's Division of Elections could not be ordered to stop certifying elections, because it doesn't do that in the first place. That job is left to county election commissions. Kleinfelter told the court at least 65 counties have already certified their elections, and the deadline for the rest to do so is Monday.

Lastly, she argued that Rowan had filed suit against the wrong person. Citing the 11th Amendment, she said the Division of Elections could not be sued, and that the suit should have named state election coordinator Mark Goins. It did not.

TNDP general counsel Gerard Stranch — who found himself in the odd position of tacitly defending the legitimacy of Clayton's candidacy — reiterated the lack of a legal memo or any proof of the suit's claims. He also noted that Forrester (who is out of town for his father's funeral, according to Stranch) had not yet been served —┬ástill another procedural flaw.

Based on the problems with the suit's filing alone, Stranch said, it did not rise to the point at which the party even needed to respond to it. That said, he argued such a challenge could only come after the election had been certified. At that point, Stranch said, it should go to the party, not federal court.

Adding to Rowan's troubles, Stranch alleged that the attorney had improperly contacted represented parties, such as Forrester, party secretary Gale Jones Carson and party treasurer David Garrison. After more interruptions from Rowan, and more rebukes from Sharp, Rowan denied the charge. Later, seeking to clarify the situation, he said he did not recall having such contact.

As if to provide the hearing with a crescendo, Clayton came forward to present his case. His presentation seemed relatively focused, however, compared to the bedlam that preceded it. Clayton mostly outlined the case made in a motion filed just before the hearing (which can be read in PDF form below). Essentially, he argued that his views were known by plenty of people who could have raised a complaint months ago.

Clayton also claimed that he and Crim had spoken, and that Crim had made "quid pro quo inducements" to get Clayton to forego his candidacy and join Crim's campaign. Speaking to reporters afterward, Crim said the two had spoken, but that he was not aware at the time of the views Clayton is being opposed for now.

After quite literally holding court for some time, Clayton was in the middle of explaining his claim that Forrester was a racist when Sharp stopped him.

"I'm not interested in your beef with the chairman of the Democratic party," Sharp said.

Just before Sharp summarized, once more, the litany of problems with Crim's suit, Rowan conceded that it had been a "rushed job" and threw up his hands.

"I'm done here, your honor," he said.

Read Clayton's lengthy motion here:

0816ClaytonIntervene.pdf

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