By: Cody Brandon

On September 8th, the Supreme Court of Tennessee handed down a ruling in McFarland v. Pemberton, a dispute between the two candidates for Circuit Judge for the Ninth Judicial Circuit. The 3-2 ruling clarifies the powers of the State Coordinator of Elections and County Election Commissions, but it also complicates the procedure for challenging candidate eligibility in state elections. Without knowledge of the intricacies of this decision, a candidate may lose his chance to challenge the eligibility of his opponent as William McFarland did.

McFarland and Michael S. Pemberton were the only two candidates for Circuit Judge in the Ninth Judicial Circuit of Tennessee. On February 3, 2014, Mr. Pemberton filed his nominating petition for the office with the Roane County Election Commission. Article VI, § 4 of the Tennessee Constitution requires judges to have resided in the district to which they are elected for one year prior to election. Pemberton grew up in Rockwood (in Roane County), but moved to Knoxville (outside of the Ninth Circuit) a little less than two years before the election. A year before the election, Pemberton purchased a second home in Roane County, within the limits of the district.

On March 31st, Willis Hall, a resident of the district, filed an Elections Complaint Form with the Commission alleging that Pemberton did not meet the constitutional requirements for judicial office in the Ninth Circuit and asked that Pemberton’s name not be placed on the ballot. On April 28, the Commission, in consultation with State Coordinator of Elections Mark Goins, held a hearing and determined Pemberton was in fact qualified as a candidate because his home in Roane County had been his primary residence for the previous year. On August 7, 2014, Pemberton was elected as Circuit Judge with 50.6% of the vote.

William McFarland, Pemberton’s opponent, raised the issue of Pemberton’s residency during his campaign, but chose not to take any legal action during the campaign and chose instead to leave the issue to the voters. Unfortunately for McFarland, the voters elected Pemberton, and McFarland filed an election contest pursuant to T.C.A. § 2-7-101 et seq., claiming the election should be declared void because Pemberton was ineligible as a candidate. The case reached the Supreme Court on appeal from this election contest action.

There were three important questions before the Court on appeal:

  1. Did the County Election Commission have the power to hold a hearing and decide the eligibility of a candidate?
  2. Did an appeal of this decision fall under a 60-day statute of limitations for review of administrative judgments?
  3. Was McFarland required to challenge Pemberton’s eligibility by appealing the Commission’s judgment within the 60-day limitation?

The Court answered all three in the affirmative.

The Court reasoned that because § 2-5-202 allowed each commission to print ballots on which “only the names of candidates who have qualified” would be placed and § 2-11-202 required the State Coordinator to ensure all commissions prohibit an ineligible candidate from being placed on the ballot, the Commission and Coordinator had the power to make determinations as to who was an eligible candidate by necessary implication. The Court held that a quasi-judicial hearing, like the one held for Pemberton, was the proper method of determining eligibility, and that, therefore, the decision of the Commission was appealable by “anyone who may be aggrieved” under § 27-9-101. Thus, the proper route of challenging the Commission’s determination was by appeal under this section and subject to the 60-day statute of limitations. Because McFarland’s election contest was essentially a disagreement with the decision of the Commission, the Court held McFarland should have appealed the decision directly as someone who was aggrieved. The Court further held that the provision of the appeals process for administrative determinations by statute precluded the use of an election contest to challenge the Commission’s determination.

As Justice Lee’s dissent notes, this decision can cause serious headaches for candidates. If a candidate wishes to challenge his opponent’s eligibility, he has two options: (1) wait until after the election and file an election contest action if he loses, or (2) file an elections complaint form with the commission prior to the election and attempt to have his opponent removed from the ballot. However, if an ordinary citizen challenges an opponent’s eligibility, the candidate’s hand is forced. Because of the ruling in McFarland, the candidate must decide between involving himself in the commission hearings – possibly spending time in court on appeal – and spending time on the campaign trail – “leaving the issue to the voters.” In all likelihood, the 60-day limitation will run before the election, and the candidate will not have the option of waiting to see the results before he challenges.

As Justice Lee also points out, this can become even more complicated in multi-candidate elections. If five candidates are running for a State Senate seat, and a citizen challenges one’s candidacy, all four other candidates must be ready to appeal a Commission decision or risk losing their opportunity to contest their opponent’s eligibility.

So, a candidate and his lawyer in Tennessee need to pay special attention to any challenge to the eligibility of his opponent and appeal any determination within the 60-day limitation. If no challenge is made prior to the election, the candidate preserves the option of contesting the election. But if a citizen or candidate challenges his opponent, the candidate should jump into the litigation or lose his right to challenge his opponent’s eligibility.

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