Crossville Chronicle, Crossville, TN

September 28, 2006

Sells' chances of retaining judgeship are dwindling; ruling favors Patterson

By Heather Mullinix / Chronicle assistant editor

Lillie Ann Sells was denied her request to void the 13th Judicial District criminal court judge Aug. 3 election, but it is unclear when David Patterson will be able to take the bench.

Patterson said, "I'm very happy. The lawyers did an excellent job, and obviously I think the judge did a great job. I was encouraged by my lawyers throughout the whole thing."

Janet Kleinfelter, representing the seven election commissions named in the suit, said Sells would have 30 days from the time the order is filed to appeal the decision. Until then, appointed Judge John Roberts will remain on the bench. If Sells does appeal, Kleinfelter said she was unsure if Patterson could take office while the appeal moved forward.

Sells had no comment following the court's ruling.

Sells' attorney Stephen Zralek had argued at least 24 absentee ballots should be disqualified because the applications did not contain the voters' Social Security numbers. Of those votes, 22 were cast in White County and two in Pickett County. One other vote should also be disqualified because it was cast by a convicted felon, he argued. Because the margin of victory in the election was 10 votes, the election should be voided, he said.

Judge Ben Cantrell of Nashville ruled Wednesday evening state election laws did not require the voter to include Social Security numbers on absentee applications, but did allow the vote by the felon to be disqualified.

Cantrell said, "There is no allegation of fraud, no conspiracy between the election officials and no arbitrary actions by the election officials. The records show this was a clean election."

During the two days of the trial, Zralek argued 130 more absentee ballots should be disqualified because the requests or applications for absentee ballots were not complete.

A number of these absentee ballots were cast in Cumberland County. Zralek said the form, which was approved for use by the state, did not ask voters to specify they would be out of the county during early voting and election day if their reason for voting absentee was being out of the county.

Suzanne Smith, Cumberland County election coordinator, testified, "We ask if they will be out of town for the election and early voting. These are all done in our office. There is another application if it's done through the mail."

Other absentee ballots cast throughout the district were challenged because they did not include a specific reason for voting by absentee, requests did not include the voters' Social Security numbers, signatures were not included on the applications or requests, did not specify which election the voter wanted to vote in, no out of county address was provided for the voter or did not specify the dates the voter would be out of the county.

Craig Fickling, Patterson's attorney, argued the statute of limitations regarding contesting elections barred Sells from arguing the 130 additional ballots because they were not mentioned in the original complaint filed during the 10-day statute of limitations. Cantrell agreed and struck those from consideration in the case.

Other allegations from the original complaint, including poll workers allowing voters to stay in the voting booth too long, screens showing candidates already selected and the Cumberland County election administrator asking a member of the media to assist in counting votes, were all removed from the complaint.

Zralek had intended to call a handwriting expert to testify to possible forgery in 6 absentee ballots and 118 votes cast in person. Fickling argued this was a new ground to contest the election that was not included in the original complaint. Cantrell upheld Fickling's objection to the evidence but Zralek was allowed to enter the expert's report into the record as an offer of proof should the case be appealed to a higher court.

Since Sept. 1, Patterson said he has been attending Judge Leon Burns' court to learn how to conduct the court's business.

"I watched him as a prosecutor for 16 years, but I never really noticed how he made it all go so smoothly," Patterson said. "Now, I'm going to be doing this so I've been taking notes."

Sells has been working in the 31st Judicial District Attorney's Office in McMinnville, TN.