Published: August 29, 2006 06:47 pm         

Sells believes 52 improper votes cast in election

David Patterson was busy conferring with lawyers and greeting friends and colleagues at a hearing Tuesday morning while Judge Lillie Ann Sells, Patterson's opponent in the contested Aug. 3 election, was absent from the hearing to decide if Patterson would take the oath of office today.

Judge Ben H. Cantrell, of Nashville, denied the request for a temporary restraining order to keep Patterson from being sworn in as criminal court judge for the 13th District.

Sells is contesting the results of the Aug. 3 election, which found Patterson the winner by a margin of 10 votes. The votes from the seven counties were scheduled to be certified by the state Wednesday.

Stephen J. Zralek, Sells' attorney, argued there were at least 52 contested votes in the election, five times the margin of victory. By the state certifying the vote and Patterson taking the oath of office, he would then be qualified to take office, an action that would irreparably harm his client, Zralek said.

"[M]ore illegal votes than the margin of victory — that's what we have here by five or six times, and I'm afraid we'll find even more," Zralek said.

Zralek said allowing Patterson to take the oath would harm Sells by

•making it difficult for her to find witnesses for her suit.

•making it difficult for her to assume office should the court declare her the winner of the election because the electorate would not see her as the office holder.

•making it difficult for her to campaign should the court declare the Aug. 3 election invalid.

Janet Kleinfelter, with the state Attorney General's office and representing the election commissions named in the suit, argued the court could not grant an injunction, pointing to an 1871 law that said the governor shall appoint a temporary judge in the event of a contested election.

The governor has yet to appoint a judge to preside over criminal court while Sells' case works through the court system.

Also, Kleinfelter noted Sells was not attempting to stop the state from certifying the vote.

Kleinfelter said if Patterson were sworn in, Sells would still be entitled to all rights as a litigant to find witnesses. She said the court could not declare her the winner of the election because the court would have no way to know if the ballots in question were cast in favor of Sells or Patterson, so a new election would be the only relief for Sells. In that event, Zralek's argument Sells would be unable to fairly compete was not valid, she said, because every losing candidate faced that problem.

"The vote of the people should be upheld until overcome by proof in trial," Kleinfelter said. "Until then, the voice of the people stands."

Craig Fickling, attorney for Patterson, said, "The plaintiff is forgetting Mr. Patterson won this race."

Fickling said Sells was not alleging voter fraud in her complaint, but "minute technical violations." The harm she was alleging in her motion, Fickling said, was also not irreparable harm because she would retain the rights of a litigant. He also pointed out the "havoc" the motion would have on the court system in the 13th Judicial District.

"Cases have been scheduled. Motions have been scheduled," Fickling said. "Defendants have the right to speedy trials. If you enjoin Mr. Patterson from taking the oath, those people's rights will be harmed."

Also, delaying Patterson's taking office would cause personnel problems at the District Attorney's office, where Patterson currently works. He would not be able to prosecute cases and a replacement for him would not be able to come on board under such uncertain conditions. Patterson also has a family to support and bills to pay, Fickling said, and the injunction would harm him monetarily.

Cantrell asked about the legality of any cases heard by Patterson should a new election be eventually ordered. Fickling said Patterson would be taking the bench under the law and the pleas he heard and decisions he rendered would remain valid.

Fickling said, "This is an attempt to thwart the will of the people."

Zraleck responded to the arguments and concluded saying, "There is no clear will of the people in this seven-county election."

"I don't know Mr. Patterson's plans," Cantrell said, "It seems he plans to take office Sept. 1. I don't know if that is a good idea, but I am not persuaded the plaintiff will be irreparably harmed."

When asked if Patterson would take office Friday, Fickling responded, "There is no reason for him not to. He won the election."

Trial for the case was set for Sept. 26 at 9 a.m. in Putnam County.