Cooley files to dismiss lawsuit

Tom McFarland’s election lawsuit might not make it to trial.

Pat Cooley, the attorney for Circuit Court Judge Mike Pemberton, filed a motion to dismiss last week.

Pemberton defeated McFarland in the race for circuit court judge of the 9th Judicial District.

Less than a week after the Roane County results were certified, McFarland filed a complaint in Roane County Chancery Court seeking a judgment declaring the election void.

“There is absolutely no evidence whatsoever of fraud or illegality that so permeated the election that it cannot be said to fairly reflect the will of the voters,” Cooley said in the motion.

The 9th Judicial District is made up of Roane, Loudon, Meigs and Morgan counties.

McFarland won Loudon, Meigs and Morgan in the election, but Roane County went for Pemberton by 1,131 votes.

McFarland’s margins of victory in the other counties couldn’t make up that deficit, and the judgeship went to Pemberton.

“Plaintiff McFarland campaigned vigorously that Mike Pemberton was not a resident of Roane County,” Cooley said. “However, the voters of Roane County let their voice be heard on the issue with a sound victory for Mike Pemberton.”

McFarland’s complaint claims the results of the election should be void because Pemberton didn’t meet the one-year residency requirement to run for judge.

McFarland made that a big issue during the campaign, but he didn’t decide to contest the matter in court until after he lost the election.

“The plaintiff in this case gambled that he could campaign on the theme that the defendant Pemberton was not a resident of Roane County and that this theme would resonate with the voters in the 9th Judicial District and result in his victory,” Cooley said. “Part of his gamble was that he could do this while another person ‘carried his water.’”

Kingston resident Willis Hall filed a complaint with the Roane County Election Commission on March 31, alleging Pemberton shouldn’t be on the ballot because he wasn’t a resident of the district. The election commission heard his complaint on April 28, and voted unanimously to put Pemberton on the ballot for the Aug. 7 election.

Hall is a former client of McFarland’s, and Pemberton and his supporters alleged that McFarland got Hall to file the complaint.

McFarland and Hall denied the allegations.

However, included with Cooley’s motion is an affidavit from Roane County Administrator of Elections Charles Holiway, who describes conversations he had with Hall and McFarland on March 31 – the day Hall filed his complaint.

“While Mr. Hall was at the office, I told him that some other person had already contacted the elections office in Nashville about the same issue,” Holiway said. “Mr. Hall was the only person that I had ever informed of the fact that some other person had already contacted the elections office in Nashville as to Mr. Pemberton’s residency.”

Holiway said he returned a call to McFarland later that day about another matter.

“During our conversation, Mr. McFarland volunteered to me that he was not the person who had called the elections office in Nashville concerning Mr. Pemberton’s residency. I never mentioned anything to Mr. McFarland about another person having called the elections office in Nashville and, as stated above, I had never told anyone other than Mr. Hall about someone having done so.”

After the election commission voted to put Pemberton on the ballot, Hall tried to have the decision overturned by filing a complaint in Roane County Chancery Court.

Senior Judge Ben H. Cantrell ruled that Hall wasn’t an aggrieved person and wasn’t eligible to seek review of the election commission’s decision.

“Mr. McFarland met the definition of an ‘aggrieved party’ … and should have brought the issue before the chancery court,” Cooley said.

By remaining on the sidelines, Cooley said McFarland missed the 60-day deadline to contest the election commission’s decision and his lawsuit should be thrown out.

“Mr. McFarland did not join in Mr. Hall’s lawsuit and did not file his complaint asking the chancery court to decide the very same issue until 114 days after the commission’s ruling,” Cooley said.

“Accordingly, 60 days has long since run, and Mr. McFarland’s complaint is time-barred.”

Pemberton was sworn in as judge on Aug. 31.

He has long denied the allegations about his residency.

On multiple occasions before the election, McFarland said he thought voters should decide the issue at the polls.

“The plaintiff should be estopped from litigating this election contest given the acts, statements and representations he has made on this issue and instead, should be bound by his previous behavior,” Cooley said.

“To let a candidate for circuit judge allow a formal decision to stand on the very issue of which he now complains, make deliberate misstatements and then circumvent them for his own benefit would be a miscarriage of justice of the highest order.”

A motion hearing in the case is scheduled for Sept. 30.

If McFarland’s complaint survives the motion to dismiss, the trial in the case is scheduled for Oct. 8.

“It’s the same as the response that I gave you before,” McFarland attorney Matthew C. Pietsch said, when asked for comments on the motion to dismiss and Holiway’s affidavit. “We’re not going to be making any comments while we’re litigating this.”